ENACTMENTS OF JUSTINIAN.
|F i r s t P r e f a c e
CONCERNING THE PLAN OF THE DIGEST ADDRESSED TO TRIBONIANUS.
( S. P. Scott, The Civil Law, II, Cincinnati, 1932 ).
|THE EMPEROR CAESAR, FLAVIUS, JUSTINIANUS, PIOUS, FORTUNATE, RENOWNED, CONQUERER AND TRIUMPHER, EVER AUGUSTUS, TO TRIBONIANUS HIS QUAESTOR: GREETING.|
With the aid of God governing Our Empire which was delivered to Us by His Celestial Majesty, We carry on war successfully, We adorn peace and maintain the Constitution of the State, and have such confidence in the protection of Almighty God that We do not depend upon Our arms, or upon Our soldiers, or upon those who conduct Our Wars, or upon Our own genius, but We solely place Our reliance upon the providence of the Holy Trinity, from which are derived the elements of the entire world and their disposition throughout the globe.
(1) Therefore, since there is nothing to be found in all things so worthy of attention as the authority of the law, which properly regulates all affairs both divine and human, and expels all injustice; We have found the entire arrangement of the law which has come down to us from the foundation of the City of Rome and the times of Romulus, to be so confused that it is extended to an infinite length and is not within the grasp of human capacity; and hence We were first induced to begin by examining what had been enacted by former most venerated princes, to correct their constitutions, and make them more easily understood; to the end that being included in a single Code, and having had removed all that is superfluous in resemblance and all iniquitous discord, they may afford to all men the ready assistance of their true meaning.
(2) After having concluded this work and collected it all in a single volume under Our illustrious name, raising Ourself above small and comparatively insignificant matters, We have hastened to attempt the most complete and thorough amendment of the entire law, to collect and revise the whole body of Roman jurisprudence, and to assemble in one book the scattered treatises of so many authors; which no one else has herebefore ventured to hope for or to expect, and it has indeed been considered by Ourselves a most difficult undertaking, nay, one that was almost impossible; but with Our hands raised to heaven, and having invoked the Divine aid. We have kept this object in Our mind, confiding in God who can grant the accomplishment of things which are almost desperate, and can Himself carry them into effect by virtue of the greatness of His power.
(3) We have also taken into consideration your marked integrity as disclosed by your labors, and have committed this work to you, after having already received the evidence of your talents in the preparation of Our Code; and We have ordered you in the prosecution of your task, to select as your assistants whomever you might approve of from among the most eloquent professors of law, as well as from the most learned men belonging to the bar of this great city. These, therefore, having been collected and introduced into Our palace, and accepted by Us upon your statements, We have permitted the entire work to be accomplished; it being provided, however, that it should be conducted under the supervision of your most vigilant mind.
(4) Therefore We order you to read and revise the books relating to the Roman law drawn up by the jurists of antiquity, upon whom the most venerated princes conferred authority to write and interpret the same; so that from these all the substance may be collected, and, as far as may be possible, there shall remain no laws either similar to or inconsistent with one another, but that there may be compiled from them a summary which will take the place of all. And while others have written books relating to the law, for the reason that their writings have not been adopted by any authorities, or made use of in practice, We do not deem their treatises worthy of Our consideration.
(5) Since this compilation is to be ascribed to the extraordinary liberality of Our Imperial will, it ought to constitute a most excellent work and, as it were, be revered as a peculiar and most holy temple of justice. You shall divide the entire law into fifty books, and into a certain number of titles following, as far as may be convenient for you, the arrangement of Our Code, as well as that of the Perpetual Edict, so that nothing may be omitted from the above mentioned collection; and that all the ancient law which has been in a confused condition for almost fourteen hundred years shall be embraced in the said fifty books, and this ancient law, purified by Us shall be, so to speak, surrounded by a wall, and shall have nothing beyond it. All legal authors shall possess equal authority, and no preference shall be given to any, because all of them are neither superior nor inferior to one another in every respect, but some are of greater or less weight as far as certain subjects are concerned.
(6) But you must neither base your judgment as to what is best and most equitable upon the number of authors, as perhaps on some points the opinion of one who is inferior may be preferable to that of many and greater ones; and therefore you must not entirely reject what was formerly included in the notes to Aemilius Papinianus, taken from Ulpianus, Paulus, and Marcianus, although the said notes have hitherto had but little force, on account of the distinction of the most renowned Papinianus; but if you perceive that anything from them is required to supplement the labors of Papinianus, that man of eminent genius, or necessary for their interpretation, you must not hesitate, after having selected it, to give it the force of law; so that all those most learned men whose opinions are included in this book may have the same authority as if their studies had been based upon the Imperial Constitutions promulgated by Our own Divine power; for We very properly consider all those things to be Ours which have obtained their sanction from Us; for he who corrects what has not been skilfully done is more praiseworthy than he who is the original author of the same.
(7) We desire you to be careful with regard to the following: if you find in the old books anything that is not suitably arranged, superfluous, or incomplete, you must remove all superfluities, supply what is lacking, and present the entire work in regular form, and with as excellent an appearance as possible. You must also observe the following, namely: if you find anything which the ancients have inserted in their old laws or constitutions that is incorrectly worded, you must correct this, and place it in its proper order, so that it may appear to be true, expressed in the best language, and written in this way in the first place; so that by comparing it with the original text, no one can venture to call in question as defective what you have selected and arranged. Since by an ancient law, which is styled the Lex Regia, all the rights and power of the Roman people were transferred to the Emperor, We do not derive Our authority from that of other different compilations, but wish that it shall all be entirely Ours, for how can antiquity abrogate our laws?
We wish that all these matters after they have been arranged in place shall be observed to such an extent that, although they may have been written by the ancients in a different way than appears in Our collection, no blame shall be imputed the text, but it shall be ascribed to our selection.
(8) Therefore, in no part of the aforesaid treatise, shall there be any place for antinomia, but there must be such conformity and consistency therein that there will be no opportunity for contradiction.
(9) We desire, as has already been stated that all repetition shall also be banished from this compilation, and whatever has been provided by the most Sacred Constitutions which We have included in our Code We do not permit again to be considered as a part of the ancient law, since the sanction of the Imperial Constitutions is sufficient to confer authority upon them; unless perhaps this should take place either for the purpose of division, or supplement, or in order to secure greater exactness; and even this must be done very rarely, lest where this repetition occurs, something thorny may grow up in this meadow.
(10) However, by no means do We allow you to insert into your treatise laws that appearing in ancient works have now fallen into desuetude; since We only desire that legal procedure to prevail which has been most frequently employed, or which long custom has established in this benign City; in accordance with the work of Salvius Julianus which declares that all states should follow the custom of Rome, which is the head of the world, and not that Rome should follow the example of other states; and by Rome is to be understood not only the ancient city, but Our own royal metropolis also, which by the grace of God was founded under the best auguries.
(11) Therefore We order that everything shall be governed by these two works, one that of the Imperial Constitutions, the other, that of the law to be interpreted and compiled in a future Code; so that if anything else should be promulgated by Us in the form of an elementary treatise, the uninstructed mind of the student, being nourished by simple matters, may the more readily be conducted to a knowledge of the higher principles of jurisprudence.
(12) We desire Our compilation which, God willing, is to be drawn up by you, to bear the name of the Digest or Pandects, and no person learned in the law shall dare hereafter to add any commentaries thereto, and to confuse by his own prolixity the abridgement of the aforesaid work, as was done in former times, for almost all law was thrown into confusion by the opposite opinions of those interpreting it; but it is sufficient merely by indexes, and a skilful use of titles (which are called paratitla), to give such warning that no change may take place in the interpretation of the same.
(13) And in order that no doubt may arise hereafter on account of the writing, We order that the text of the said work shall not be written with abbreviated words, and that obscure and compendious expressions shall not be employed, which by themselves and through the defects which they have occasioned have brought about many contradictions, even where the number of the book or something else is meant; for We do not permit such things to be indicated by special abbreviations of numbers but they must be designated by regular letters.
(14) Let it be your earnest desire, therefore, to do all these things, God willing, by the aid of your own wisdom and that of those other most eloquent men, and bring the work to as excellent and rapid a conclusion as possible; so that it having been completed and digested into fifty books may remain a monument to the great and eternal memory of the undertaking, a proof of the wisdom of Almighty God, to the glory of Our Empire and of your service.
Given on the eighteenth day of the Kalends of January, during the Consulship of those most illustrious men Lampadius and Orestes, 530.
EMPEROR CAESAR, FLAVIUS, JUSTINIANUS, ALEMANNICUS, GOTHICUS,
FRANCISCUS, GERMANICUS, ANTICUS, ALANICUS, VANDALICUS, AFRICANUS, PIOUS, HAPPY, RENOWNED, CONQUEROR AND TRIUMPHER, EVER AUGUSTUS, TO THEOPHILUS, DOROTHEUS, THEODORUS, ISIDORUS, ANATOLIUS, THALELEUS, AND GRATINUS, ILLUSTRIOUS MEN AND PROFESSORS OF LAW, AND TO SALAMINIUS MOST ELOQUENT MAN, AND PROFESSOR OF LAW, GREETING.
Who knows more fully than you do that the entire law of Our State is now amended and compiled in four books of Institutes or elements, and in fifty books of the Digest or Pandects as well as in twelve Imperial Constitutions? All those things which it was necessary to order either at the beginning, or to settle after the completion of the work, with free admission of the fact, have already been explained to you by Our speeches expressed in both the Greek and Roman languages, which We desire to become eternal. But since it is necessary for you and all others who have been appointed professors of legal science also to know this, namely: what We think is necessary to be communicated to students, and at what time this should be done, so that they may by this means become perfect and most learned; We therefore are of the opinion that the present Imperial address should be especially directed to you, so that you in your wisdom, as well as other professors who may desire to exercise the same profession at any time, having observed Our rules may be able to travel the glorious road of legal knowledge. Therefore there is no doubt that elementary treatises have a right to claim for themselves the first place in all studies, for the reason that they afford in small compass the first principles of every science. Of the fifty books of the Digest, We are of the opinion that thirty-six would be sufficient for your explanation of the law, as well as for the instruction of youth; and it seems to Us to be suitable now to explain their arrangement, and to indicate the paths by which you must proceed; to recall to your memory what you formerly taught, and also to point out not only the usefulness of Our new compilation but also state the time which should be consumed in its study, in order that none of this science may remain unknown.
(1) Formerly indeed, as you are well aware, among the vast multitude of laws which are included in two thousand volumes, and more than three million lines, students received from the instruction of their masters the contents of only six books, which were greatly confused and included very few useful laws; the others had already fallen into disuse and were difficult of comprehension to all. In these six books were comprised the Institutes of Our Gaius and four special treatises; the first concerning the ancient dotal action, the second, on guardianship, the third and the fourth relating to wills and legacies, which students did not study as a whole, but omitted many portions of the same as being superfluous.
This work was not taught to students during the first year in accordance with the order of the Perpetual Edict, but indiscriminately and as it were collected in a medley, the useful mixed with the worthless and the latter composing the larger portion.
During the second year, an absurd arrangement was adopted, and the first part of the laws was taught, certain titles having been omitted, for it was contrary to all rules to read anything after the elements but what occupied the first place among the laws and which deserved this name. After this part had been read without any continuity, special subjects being chosen which were for the most part useless, other titles were taught to the students which were derived from that part of the laws styled "Concerning Actions", and in this no regular method was pursued, rarely were profitable subjects selected, and almost the entire remainder of the volume was considered of no value; and from that part which is designated "Things" seven books were rejected as being unfitted for students and considered neither suitable nor peculiarly adapted to instruction.
During the third year, they studied what had been omitted from each volume, that is to say from those on Things and on Actions-at-law, using each volume alternately; and this opened the way for them to the most sublime Papinianus and his Opinions. From the aforesaid collection of Opinions which are contained in nineteen books, they were taught only eight, nor were the entire contents of these given them, but very few subjects from many were selected, and of these the shortest out of a great number, so that they laid them down without being thoroughly informed. Then after these treatises alone had been expounded by the professors, the students were accustomed to study the Opinions of Paulus by themselves not as a whole, but in an imperfect and somewhat disconnected manner, in accordance with a vicious custom. In this way the study of ancient jurisprudence was brought to a close in the fourth year, and if anyone desired to enumerate the studies which had been pursued, he found on making the calculation that out of the immense number of laws hardly sixty thousand lines of very little value had been gone over and that all the remainder were unconsidered and unknown; except where some small portion of them were required to be examined whenever the practice of the courts compelled this to be done; for you yourselves, masters of the law, deemed it proper to read something from them in order that the information of your scholars might be, to some extent, increased by your efforts. Such were the monuments of ancient instruction which is also confirmed by your own testimony.
(2) We, however, finding such a need of laws, and considering this condition to be most wretched, do now open the treasures of jurisprudence to all those desirous of obtaining them; and these when dispensed by your wisdom, as it were, will render your scholars most eloquent legal orators.
During the first year, they will study Our Institutes which We have taken from almost all the ancient elementary works, and which have been brought from all turbid sources into one limpid, pure, reservoir, by the agency of Tribonianus, that most eminent man, and magistrate, former Quaestor of our Sacred Palace, and former Consul, as well as by both of you, that is to say, Theophilus and Dorotheus, most eloquent professors. For the remainder of the year according to an excellent method We direct that the first part of the laws, which is designated by the Greek term prwta shall be taught to students, and that nothing shall precede this, because what holds the first rank can have nothing before it; and We decree that this shall be the beginning and end of instruction during the first year. Nor do We consent that those who take this course shall be designated by the foolish and ridiculous name of "Twopounders"; but shall be called "New Justinians", and We desire that this rule shall be followed for all future time, so that those who still uninformed aspire to the knowledge of the law, and are willing to accept the ordinances of the former year may be worthy of bearing Our name; since the first volume which has been promulgated by Our authority will be immediately delivered into their hands. The name which they formerly bore was one which was worthy of the ancient confusion which enveloped all jurisprudence; now, however, as the laws are to be clearly and intelligibly presented to their minds, it was necessary for their appellation to be changed, and for them to be distinguished by another.
(3) In the second year, for which a name has already been given them by an Edict approved of by Us, We decree that they shall be taught either from the seven books relating to Actions or from the eight relating to Things, as the alteration of the time may permit; and this arrangement We direct shall be preserved unaltered; but in the study of the said books on Actions and Things they must thoroughly apply themselves, taking them in their regular order and without omitting anything, because all is adorned with new elegance, and nothing whatever that is worthless or that has fallen into disuse is to be found therein. We wish to be added to the study of one or the other of these treatises, that is the one on Actions or the one on Things, during the second year, four special books which We have selected out of the entire compilation of fourteen; one of which is derived from the contents of the work in three books which We have compiled on dowries; one from the two on guardianships and curatorships; one from the work in two parts concerning wills; and also one compiled in like manner from the seven which treat of legacies and trusts and topics of a similar character. Therefore We order that these four books which have been placed in the first rank of the special compilations aforesaid, shall alone be used by you in giving instruction to students; the other ten being reserved for a proper opportunity, because it is not possible, nor does the second year afford sufficient time for the said fourteen books to be explained to them by the voice of the master.
(4) During the third year the course of instruction must pursue the following order, so that whether they be taught alternately from the books relating to Actions or from those relating to Things the triple method of special works on jurisprudence shall be followed: first must be taken up the formula of hypothecation, to which We have assigned a suitable place, namely that in which We treat of mortgages; for as it resembles actions arising from pledges, which have been discussed in the books treating of Things, it should not avoid their neighborhood, since both subjects have reference to almost the same matters.
After this special treatise, another like it shall be explained to them, which We have compiled with reference to the Edict of the aediles, and concerning actions for the recovery of property, and on evictions, as well as those relative to stipulations for double the amount; as when provisions are made by the laws with respect to purchases and sales they occupy a prominent place, in the books on Things; but as all the definitions which We mentioned were inserted in the last part of the former edict, We were compelled to transfer them to the first position, lest they might be too far separated from Sales, to which they are, as it were, auxiliary. We have designated these three books to be read with that of the most talented Papinianus whose works students were accustomed to study during the third year, not as a whole but a little being taken here and there from the entire contents. The most elegant Papinianus affords excellent subjects for your instruction, not only from the Opinions which are contained in nineteen books, but also from his thirty-seven books of Questions and his two books of Definitions, and besides the book on Adultery, and indeed, almost all his disquisitions in the entire arrangement of Our Digest, in which he appears eminent in his own particular sphere.
And lest students of the third year, who are styled "Papinianists", may appear to lose their name as well as their elegance, he himself has again been introduced to the third year by means of a most excellent contrivance; for We have filled the book on the hypothecary formula from the elements of the same excellent Papinianus, so that they may derive their name from him and be styled Papinianists, and may remember him and rejoice and observe the festival day which they were accustomed to celebrate when they first studied his principles of law; and that by means of this the memory of that most distinguished Praefectorian Papinianus may survive forever; and with this the study of the third year shall be concluded.
(5) Then, for the reason that it is customary for students of the fourth year to be designated by the ordinary Greek name lutaV, they may retain this name if they desire to do so; and instead of the Opinions of the most learned Paulus, of whose twenty-three books they formerly were accustomed to study scarcely eighteen, reading them in a confused manner as already stated; they must now endeavor to frequently peruse ten special books which remain out of the fourteen which We have already enumerated, and from these they will obtain a much greater and more ample fund of information than they were accustomed to derive from the Opinions of Paulus.
Thus the entire order of separate books compiled by Us and divided into seventeen will be impressed upon their minds, which We have included in two parts of the Digest, that is to say, the Fourth and Fifth, in accordance with its division into Seven Parts; and what We stated in the first words of Our address will be found to be true; so that young men may become perfect by the study of the said thirty-six books, and prepared for any legal work, and not be unworthy of our age. The other two parts of our Digest, that is to say the Sixth and Seventh which are composed of fourteen books, must be laid aside for the time, so that they can subsequently read them and make use of them in court. If they carefully absorb these, and during the fifth year in which they are called prolutai, prolutai, they endeavor not only to read but to perfectly understand the Code of Imperial Constitutions, they will lack nothing of the knowledge of jurisprudence, but they will be familiar with it all from beginning to end; and although this happens in almost no other scientific system, the number of whose branches is infinite however useless they may be, this course of study alone will have an admirable termination, which is effected by Us at the present time.
(6) Therefore, when all these secrets of the law are disclosed, nothing will be concealed from the students, but after having read all the books which have been compiled by Us through the agency of that distinguished man Tribonianus, and others, they will become eminent orators and ministers of justice and as fitted for deciding causes as for trying them, and will be prominent and fortunate in every place and in every age.
(7) We wish that these three treatises which have been composed by Us shall be taught students not only in royal cities, but also in the most beautiful city of Berytus — which may well be designated the nurse of the law, as has already been ordained by former princes — but in no other places, to which this privilege was not granted by Our ancestors; and for the reason that We have learned that certain ignorant men have gone about in the magnificent city of Alexandria, as well as in a Caesarea, and have imparted spurious instruction to students, We intend to deter these from this undertaking by means of the above-mentioned warning, so that if they venture hereafter to perpetrate such acts outside the royal cities and the metropolis of Berytus, they shall be punished by a fine of ten pounds of gold, and shall be banished from that city in which they do not teach the laws, but violate them.
(8) There is another matter which We referred to in Our address in the beginning, when ordering this work to be composed, which after its completion We also inserted in another of Our Sacred Constitutions, and which We now promulgate as being useful; that is, that none of those who compile these books shall dare to insert abbreviations in them; or, by the employment of notes introduced any ambiguity in the interpretation and composition of the laws; and all copyists who may commit this offence hereafter are hereby notified that they, in addition to being liable to a criminal penalty shall be compelled to pay double the value of the book to the owner, if he was ignorant of its character when they delivered it to him; since he who purchases such a book cannot consider it of any value, for no judge will permit a citation to be made from it, but will direct that it shall be considered as unwritten.
(9) The following We publish as an extremely necessary regulation based upon a most solemn warning, namely, that no one of those who are pursuing the study of the law shall dare, either in this most magnificent city, nor in the beautiful city of Berytus, to perpetrate any jokes which are unworthy and most vile, nay even befitting only the condition of slaves, that have an injurious effect; or any other illegal acts either against their professors or their associates, and especially against those who come to the study of the law while inexperienced; for who indeed can designate as jokes such deeds as give birth to crimes? We do not suffer these things to be done under any circumstances; but We subject this matter to a rigid rule in Our times and transmit it to all future ages, since it is proper that Our minds should first be educated and afterwards our tongues.
(10) The exalted Prefect of this most flourishing city shall have charge of the enforcement and punishment for violation of these rules so far as both youths and copyists are concerned. In the city of Berytus the most illustrious President of the Phoenician shore, together with the most blessed Bishop and the professors of law of that city shall discharge this duty.
(11) Begin then, under the direction of God to teach the science of law to students and open to them the way which We have discovered, that they may become excellent ministers of justice and of the State, and that the greatest possible honor may accrue to you for all time; because in your age an exchange of laws has been devised, such as was made by Glaucus and Diomedes with one another, as is set forth in Homer, the father of every virtue, when they exchanged things which were dissimilar: crusea calkeiwn. ekotomboioa enneaboiwn ; that is to say — "Gold for copper, cattle worth a hundred for others worth nine."
We decree that all these rules shall be observed in every age by all professors, students of law, and copyists, and by the judges themselves.
Given on the seventeenth day of the Kalends of January at Constantinople, our Lord Justinian, ever Augustus, being Consul for the third time, 533.