PANDECTAE
PANDECTAE or
DIGESTA. Justinian, having
determined at the beginning of his reign to reduce the entire body of Roman
law to a new and more compendious form, first caused a compilation or codex
to be made of imperial statute law (
lex), and
then proceeded to the more ambitious project of digesting the law contained
in the writings of the jurists (
jus). The
difficulty of ascertaining the law from this latter source, owing to the
number of books to be consulted, the scarcity of copies of them, and their
want of agreement, had long been regarded as a great practical evil. An
imperfect remedy for it had been supplied by an enactment of Theodosius II.
and Valentinian III. A.D. 426, who had declared that only the writings of
five eminent jurists and of other jurists cited by them should have legal
authority; and they at the same time laid down rules for determining
questions upon which these jurists disagreed [
JURISCONSULTI]. It was left to Justinian to carry
out a complete measure of reform, though it was one which had long been
contemplated. In the last month of A.D. 530, this emperor, in a constitution
called from its first words
Deo auctore,
addressed to Tribonian, who had been employed in preparing the Codex
Constitutionum, empowered him to name a commission of which he was to be the
head, for the purpose of making a Digest from the writings of those jurists
to whose works legal authority had been given by emperors, e. g. by the law
of citations, or, as it is expressed by Justinian, “Antiquorum
prudentium quibus auctoritatem conscribendarum interpretandarumque legum
sacratissimi principes praebuerunt.” The Digest, however,
contains extracts from Hermogenianus and Arcadius Charisius, and possibly
from one or two other jurists, who were subsequent in date to the classical
jurists. The compilers were not bound by the rules of the law of citations
for settling cases of dispute, but had full power to declare the law as they
thought fit. Many controversies had been previously settled by Justinian in
his
quinquaginta decisiones, which were
subsequently embodied in the
Codex repetitae praelectionis.
The instructions of the Emperor were, to select what was useful, to omit
what was antiquated or superfluous, to avoid unnecessary repetitions, to get
rid of contradictions, and to make such other changes as should produce out
of the mass of ancient juristical writings a useful and complete body of
law. The work was to be distributed into fifty books, and the books were to
be subdivided into titles (
tituli). The
compilation was to be named
Digesta, a Latin
term indicating a collection or arrangement of the works of an author
(Mommsen,
Zeitsch. f. Rechtsgesch. 7.480), or
Pandectae, a Greek word expressive of the
comprehensiveness of the work. The name
Digesta
had been used by Salvius Julianus for the title of his chief work, and also
by the jurists Celsus and Marcellus. The word
Pandectae had
also been applied to compilations which contained various kinds of matter
(Gell., Praef.) Thus the Pandects of Ulpian and of Modestinus are spoken of.
Justinian strictly prohibited any commentaries being written on the Digest,
so as to prevent his work being buried under a mass of interpretation.
Permission, however, was given to make
paratitla or
references to parallel passages, with a short statement of their contents
(
Const. Deo auctore, s. 12: cf. Heimbach,
Proleg.
ad Basil. vol. vi. p. 4). It was also provided that
abbreviations (
sigla) should not be used in
forming the text of the Digest. The writings of the jurists were deprived of
all independent authority, and were not to be used for the purpose of
elucidating the meaning of the text. Thus the Digest, together with the
other parts of Justinian's legislation, was to be the exclusive source of
law. The work was completed in three years, as appears by a constitution
both in Greek and Latin, which confirmed the work, and gave to it statutory
authority (
Const. Tanta and
Δέδωκεν). It became law on the 30th Dec., A.D. 533. The
rapidity with which the compilers completed their work is remarkable, though
in estimating it we should remember that they had not to draft a code of new
rules, but were mainly occupied in selecting, and co-ordinating ancient
materials. Besides Tribonian, who had the general conduct of the
undertaking, sixteen other persons are mentioned as having been employed in
the work, among whom were Constantinus, an official of high rank, the
professors Dorotheus and Anatolius, who had been invited for that purpose
from the law school of Berytus, and the professors Theophilus and Cratinus,
who taught at Constantinople. Besides these, there were eleven practising
lawyers. The vast extent of the work of the compilers is shown by the
statement that they made use of nearly 2,000 different treatises, which
contained 3,000,000 lines (
versus,
στίχοι), but the amount inserted in their
compilation was only 150,000 lines, according to the statement of Justinian.
Tribonian procured this large collection of treatises, many of which had
fallen into oblivion, and a list of them with the names of their authors was
prefixed to the work, pursuant to the instructions of Justinian
(
Const. Tanta, &c. s. 16). Such a list is at
present only found in the Florentine MS. of the Digest, written in Greek.
Although it is not exact, containing some treatises from which no extracts
were taken and omitting others which were used, it is probably a copy of the
Index mentioned in the
Constitutio Tanta. The
Index comprises 381 authors, 207 treatises, and 1544 books. Salvius Julianus
and Papinian head the list, otherwise the order of names is intended to be
historical, and, as a general rule, is so.
In accordance with the instructions of Justinian,
[p. 2.331]the Digest is distributed into fifty books, which with the exception of
three books are divided into Titles, of which there are 432. The books 30,
31, and 32 are not divided into Titles, but have one common title,
De legatis et fideicommissis. Under each Title are
placed the extracts from the several jurists, numbered 1, 2, 3, and so on,
with the writer's name and the name and division of the work from which the
extract is made. These extracts amount to 9,142. No name corresponding to
Liber or Titulus is given to these subdivisions of Tituli, which are formed
by the extracts from the several writers, but Justinian (
Const.
Tanta, 1.7) has called them
leges,
and they are often designated by this term; another common term used to
denote them is
fragmenta. The fifty books
differ materially both in bulk, number of titles, and number of extracts.
Various ways of citing passages from the Digest have been in use at different
times and countries. The Byzantine writers gave first the number of the book
(
βι=
βιβλίον), then that of the title (
τι), and lastly the extract (
διγ). The Glossators simply gave the rubric of the title and the
first words of the extract, as also of the paragraph or section.
Subsequently the number of the fragment and section was substituted for the
first words. Modern writers frequently give the number of the book and title
as well as of the fragment and paragraph. Among German civilians it has been
usual to put the number of the fragment and paragraph before the rubric, and
in modern times to insert after the rubric the number of the book and title:
e. g. l. or fr. 1.5, de obligationibus et actionibus, 44, 7. It has become
usual among English writers to cite in the reverse order, and to leave out
the rubric: e. g. D. 44, 7, 1.5. The Glossators and their followers, in
referring to the Digest, sometimes indicate the work by P, p, or
π (for Pandectae) and sometimes by D or ff.--ff.
being derived from a mode of writing ð with a line through it
(
Zeitsch. f. Rechtsgesch. 12.300). The oldest printed
English work in which the Digest is cited is Bracton's
Treatise on
the Law of England, and his mode of citation is naturally that
of the Glossators from whom his knowledge of Roman law was derived.
(
Two Discourses by G. Long, London, 1847, p. 107.)
Justinian divided the whole fifty books into seven large masses, called
partes, which perhaps corresponded with the
seven main divisions of the works on the Edict, and had also a special
reference to the course of instruction then established. (For the mystical
significance which may attach to the numbers adopted by Justinian, cf.
Const. Tanta, § § 1, 2, “Et in
septem partes eos digessimus, non perperam neque sine ratione, sed in
numerorum naturam et artem respicientes et consentaneam eis divisionem
partium conficientes;” and see Hofmann in
Zeitsch. f.
Rechtsgesch. 11.340, &c.; Roby,
Introd.
p. xxix.) The first part (
πρῶτα) comprises
the first four books; the second (
de judiciis).
six, i. e. from the fifth to the eleventh; the third (
de
rebus), seven, i. e. from the twelfth to the nineteenth; the
fourth (the
umbilicus Pandectarum, or central
part), from the twentieth to the twenty-seventh; the fifth (
de testamentis), nine, i. e. from the twenty-eighth
to the thirty-sixth; the sixth, seven, i. e. from thirty-seventh to
forty-fourth; and the seventh, five, from the forty-fifth to the fiftieth.
The number of writers from whose works extracts were made is thirty-nine,
comprehending those jurists from whom extracts have been erroneously
supposed by Gibbon and others to have been made at secondhand, as G. Mucius
Scaevola, the Pontifex, from whom four fragments were, and Aelius Gallus,
from whom one fragment is taken, whose name is omitted from the Florentine
index; but omitting Servius Sulpicius Rufus, who is represented by his pupil
Alfenus, distinguishing Aelius Gallus from Julius Aquila, Venuleius from
Claudius Saturninus, assuming that there is only one Pomponius, and omitting
Sabinus, whose name is erroneously inserted in the Florentine Index.
(Zimmern,
Gesch. des röm. Privatrechts, p. 224.)
The following is the list of jurists from whose writings the Digest was
constructed, as it was given in the
Palingenesia of Hommel,
who has arranged the matter taken from each writer under his name, and
placed the names in alphabetical order. (The new
Palingenesia
by Lenel is not sufficiently advanced to make it available for this
purpose.) The dates of the jurists and the other facts appended are to a
great extent taken from Mr. Roby's
Introduction to the
Digest. The figures in the third column indicate the proportions
contributed to the Digest by each jurist, estimated in the pages of Hommel.
(
a) denotes that the contribution is under
one page of the Palingenesia. The extracts from many of the writers are few
and short: those from Ulpian are more than a third of the whole; and next to
these the extracts from Paulus, Papinian, Julianus, Pomponius, Q. Cervidius
Scaevola, and Gaius, ate the largest.
|
DATE.
|
|
Sextus
Caecilius Africanus |
Hadrian and the Antonines |
23 1/2
|
Alfenus Varus |
A pupil of Servius Sulpicius and
contemporary of Cicero |
9 |
Furius
Anthianus |
Unknown, last but two in
Florentine Index |
(a) |
Julius Aquila |
In Florentine Index, Gallus
Aquila; unknown; in Index between Marcianus and Modestinus |
(a) |
Aurelius Arcadius Charisius |
Constantine |
2 1/2 |
Callistratus |
Severus and Caracalla |
15 |
Juventius Celsus |
Domitian and Hadrian |
14 |
Florentinus |
Unknown, but cf. Dig. 41, 1, 16 |
4 |
Gaius |
Hadrian and the Antonines |
63 |
C. Aelius
Gallus |
A contemporary of Cicero |
(a) |
Claudius Hermogenianus |
Constantine the Great |
9 1/2 |
Priscus Javolenus |
Trajan and Hadrian |
23 |
P. Salvius Julianus |
Hadrian |
68 |
M. Antistius Labeo |
Augustus |
10 |
Aemilius Macer |
Alex. Severus |
10 |
Lucius Volusius Maecianus |
Antoninus Pius |
7 |
Lucius Ulpius Marcellus |
The Antonines |
21 |
Aelius
Marcianus |
Caracalla and Alexander Severus |
36 |
Junius Mauricianus |
Antoninus Pius |
(a) |
Rutilius
Maximus |
Unknown; in the Index last but
one. |
(a) |
Arrius Menander |
Caracalla |
2 |
Quintus Mucius
Scaevola |
Pontifex Maximus, Consul B.C. 95 |
(a) |
Herennius Modestinus |
A pupil of Ulpian |
40 |
Priscus Neratius |
Trajan and Hadrian |
7 1/2 |
L. Aemilius Papinianus |
Severus and Caracalla |
92 |
Justus Papirius |
Commodus |
2 |
Julius Paulus |
Alex. Severus |
268 |
Sextus
Pomponius |
Hadrian and the Antonines |
70 |
Proculus |
Tiberius and his successors |
6 |
Licinius Rufinus |
Caracalla |
1 |
Claudius Saturninus |
The Antonines |
1 |
Q. Cervidius Scaevola |
The Antonines |
74 1/2 |
Paternus Tarrentenus |
Commodus |
(a) |
Clemens Terentius |
Antoninus Pius |
3 1/2 |
Q. Sept. Florens Tertullianus |
The Antonines |
1 |
Claudius Tryphoninus |
Caracalla |
18 |
Salvius
Aburnus Valens |
Hadrian and Antoninus Pius |
3 |
Venuleius Saturninus |
The Antonines |
10 |
Domitius
Ulpianus |
S. Severus and Alex. Severus |
610 |
[p. 2.332]
It follows from the instructions of the Emperor and the object of his work
that the extracts from the jurists are not always given in their exact
words, alterations and additions being required in them in order that
inconsistencies and repetitions might be avoided and the law brought up to
date. The presence of these interpolations, called by civilians
emblemata Triboniani, is not indicated by the compilers,
and hence we frequently cannot be sure of the extent to which extracts
represent what the jurists to whom they are attributed actually wrote (cf.
Gradenwitz,
Interpolationen in den Pandekten).
In some cases we have the means of comparing extracts with their originals
(for such a comparison see Roby's
Introd. ch. v.), but for
the most part the writings of the Roman jurists only exist in the form in
which they were adopted by Justinian. The compilers appear to have
frequently obscured the meaning of passages by their interpolations; they
have in some cases admitted antinomies, and have inserted many repetitions.
(On the latter subject, cf. Bluhme,
Dissertatio de
geminatis et similibus quae in Digestis inveniuntur
capitibus.)
But the chief defect of the Digest consists in its want of systematic
arrangement, subjects belonging to the same department of law being
sometimes separated in the most arbitrary way. It will be remembered that
the compilers were fettered by the Emperor's instructions, which required
them to arrange (
digerere) the whole body of
the law comprised in the Digest according to the Code and the Edictum
Perpetuum. Thus the books and titles of the Digest were, generally speaking,
arranged after the pattern of the Edict, for the Code also followed the
Edict in its arrangement. (For the probable order of topics in the Edict,
see Lenel,
Das Edictum Perpetuum.) This order
of subjects, though extremely confusing to a modern reader, would have been
familiar to the lawyers of Justinian's time from the commentaries on the
Edict, and was no doubt regarded by them as a convenient one for practical
purposes.
It has long been a matter of dispute whether the compilers of the Digest were
guided by any, and, if any, by what principle in the arrangement of the
several extracts under the respective titles. The subject is examined in a
very learned essay by Bluhme, entitled
Die Ordnung der Fragmente in
der Pandektentiteln (
Zeitschrift für
Rechtsyesch., vol. iv.). The investigation is of course founded
on the titles of the several works of the jurists, which as already observed
are given at the head of each extract: thus, for instance, in the beginning
of the third book, the first seven extracts are headed as follows:
“Ulpianus Libro sexagesimo quarto ad Edictum”
“Idem Libro primo Fideicommissorum;”
“Idem Libro quarto ad Sabinum;”
“Idem Libro quinto ad Sabinum;”
“Paulus Libro primo ad Sabinum;”
“Julianus Libro trigesimo tertio Digestorum;”
“Paulus Libro secundo ad Sabinum.” These will serve as samples
of the whole, and will explain the following remarks from Bluhme, whose
conclusions are these--“The compilers separated all the writings from
which extracts were to be made, into three parts, and formed themselves
into three committees. Each committee read through in order the books
that had fallen to its, lot, yet so that books which were closely
related as to their contents were extracted at the same time. The books
were compared with the Code of Justinian, and what was selected for the
new compilation was placed under a title taken either from the Code, the
Edict, or in case of necessity from the work itself which was extracted.
What came under the same title was compared; repetitions were erased,
contradictions were got rid of, and alterations were made, when the
contents of the extracts seemed to require it. When the three committees
had finished their labours, the present Digest was formed out of the
three collections of extracts. In order to accomplish this, they made
that collection the foundation of each title which contained the most
numerous or at least the longest extracts. With these they compared the
smaller collections, striking out, as they had done before, repetitions
and contradictions, making the necessary additions, and giving more
exact definitions and general principles. What remained over of the
smaller collections without having had an appropriate place assigned to
it, was placed after the first collection, and its place in the series
after the first collection was generally determined by the number of
extracts.”
“The Digest does not seem to have been subjected to any further
revision.”
Bluhme remarks that, although the Constitutions
Deo
Auctore, Imperatoriam, Tanta, and
Cordi contain much information on the economy of the Digest and
the mode of proceeding of the compilers, only the two following facts are
distinctly stated:--1. That the extracts from the writings of the jurists
were arranged according to the titles of the Code and the Edict. 2. That the
extracts were compared with the Code. Accordingly everything else must be,
proved from an examination of the work itself. and this is the object of
Bluhme's laborious essay. He observes that if a person will examine the
extracts in the titles De Verborum Significatione and De Regulis Juris (50,
tit. 16, 17), he will find a regular order observable in the titles of the
juristical works from which the extracts are taken. Generally, the series of
the books quoted shows that the original order of the works from which the
extracts were to be made has not
[p. 2.333]been altered; and
the several works generally follow in both these titles in the same order. A
similar remark applies to the title De Verborum Obligationibus (
Dig. 45, tit. 1), though there is a variation in all
the three titles as to the relative order of the three masses, which are
presently to be mentioned. “In the remaining titles of the
Digest,” adds Bluhme, “at first sight it appears as if one
could find no other distinction in the titles of the extracts than this,
that one part of them has a certain kind of connexion, and another part
merely indicates a motley assemblage of books out of which the extracts
have been made. But on a closer comparison not only are three masses
clearly distinguishable, but this comparison leads to the certain
conclusion, that all the writings which were used in the compilation of
the Digest nay be referred to three classes. The Commentaries on Sabinus
(Ad Sabinum), on the Edict (Ad Edictum), and Papinian's writings are at
the head of these three classes. We may accordingly denote these three
masses respectively by the names Sabinian, the Edict, and Papinian. In
each of these classes the several works from which extracts are made,
always follow in regular order.” This order is shown by a table
which Bluhme has inserted in his essay.
This article, if read in connexion with the articles
CODEX and
INSTITUTIONES will give some general notion of the
Legislation of Justinian, the objects of which cannot be expressed better
than in the following words:--“Justinian's plan embraced two principal
works, one of which was to be a selection from the Jurists and the other
from the Constitutiones. The first, the Pandect, was very appropriately
intended to contain the foundation of the law: it was the first work
since the date of the Twelve Tables, which in itself, and without
supposing the existence of any other, might serve as a central point of
the whole body of the law. It may be properly called a Code, and the
first complete Code since the time of the Twelve Tables, though a large
part of its contents is not Law, but consists of Dogma and the
investigation of particular cases. Instead of the insufficient rules of
Valentinian III., the excerpts in the Pandect are taken immediately from
the writings of the Jurists in great numbers, and arranged according to
their matter. The Code also has a more comprehensive plan than the
earlier codes, since it comprises both Rescripts and Edicts. These two
works, the Pandect and the Code, ought properly to be considered as the
completion of Justinian's design. The Institutiones cannot be viewed as
a third work, independent of both: it serves as an introduction to them
or as a manual. Lastly, the Novellae are single and subsequent additions
and alterations, and it is merely an accidental circumstance that a
third edition of the Code was not made at the end of Justinian's reign,
which would have comprised the Novellae which had a permanent
application.” (Savigny,
Gesch. d. röm.
Rechts, i. p. 14.)
For the editions of the Digest, see Teuffel,
Hist. of Rom.
Lit. § 480, 11, 12; and compare CORPUS
JURIS.
[
G.L] [
E.A.W]