PANDECTAE or DIGESTA. In the last month of the year A.D. 530, Justinian by a Constitution addressed to Tribonian empowered him to name a commission for the purpose of forming a Code out of the writings of those Jurists who had enjoyed the Jus Respondendi, or, as it is expressed by the Emperor, "antiquorum prudentium quibus auctoritatem conscribendarum interpretandarumque legum sacratissimi principes praebuerunt." The compilation however comprises extracts from some writers of the Republican period (Const. Deo Auctore), and from Arcadius Charisius and Hermogenianus. Ten years were allowed for the completion of the work. The instructions of this 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 (jus antiquum). The compilation was to be distributed into Fifty Books and the Books were to be subdivided into Titles (Tituli). The work was to be named Digesta, a Latin term indicating an arrangement of materials, or Pandectae, a Greek word expressive of the comprehensiveness of the work. The name Digesta had already been used by Salvius Julianus for the title of his chief work. The term Pandectae had also been applied to compilations which contained various kinds of matter (A. Gell. Praef.). It was also declared that no commentaries should be written on this compilation, but permission was given to make Paratitla or references to parallel passages with a short statement of their contents (Const. Deo Auctore, s12). It was also declared that abbreviations (sigla) should not be used in forming the text of the Digest. The work was completed in three years (17 Cal. Jan. 533) as appears by a Constitution both in Greek and Latin which confirmed the work and gave to it legal authority (Const. Tanta, &c., and Δέδωκεν).
Besides Tribonian, who had the general conduct of the undertaking, sixteen other persons are mentioned as having been employed on the work, among whom were the Professors Dorotheus and Anatolius, who for that purpose had been invited from the law-school of Berytus, and Theophilus and Cratinus who resided at Constantinople. The compilers made use of about two thousand different treatises, which contained above 3,000,000 lines (versus, στίχοι), but the amount retained in the compilation was only 150,000 lines. Tribonian procured this large collection of treatises, many of which had entirely fallen into oblivion, and a list of them was prefixed to the work, pursuant to the instructions of Justinian (Const. Tanta, &c., s16). Such a list is at present only found in the Florentine MS. of the Digest, but it is far from being accurate. Still it is probably the Index mentioned in the Constitution, Tanta, &c. (Puchta, Bemerkungen ueber den Index Florentinus, in Rhein. Mus. vol. III pp365‑370).
The work is thus distributed into Fifty Books, which, with the exception of three books, are subdivided into Titles, of which there are said to be 422. The books 30, 31, 32, are not divided into Titles, but have one common Title, De Legatis et Fideicommissis; and the first Title of the 45th book, De Verborum Obligationibus, is really divided into three parts, though they have not separate Rubricae. 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 are said to amount to 9123. 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, &c., s7) has called them "leges," and though not "laws" in the strict sense of the term, they were in fact "law;" and in the same sense the Emperor calls the jurists "legislatores" (Const. Tanta, &c. s16). The Fifty p859Books differ materially both in bulk, number of titles, and number of extracts. The Glossatores and their followers, in referring to the Digest, sometimes indicate the work by P, p, or Π, and sometimes by D or ff, which according to some writers represents D, and according to others Π. 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 that of the Glossatores (Two Discourses by G. Long, London, 1847, p107).
There was also a division of the whole Fifty Books into Seven larger masses, called Partes, which corresponded to the seven main divisions of the works on the Edict, and had also a special reference to the course of instruction then established. Thus the first Pars comprises Four Books, the second Pars comprises seven Books, and so on (Const. Tanta, &c. s2. "Igitur prima quidem pars," &c.).
The number of writers from whose works extracts were made is thirty-nine, comprehending those Jurists from whom extracts were made at second hand, as Q. Mucius Scaevola, the Pontifex, from whom four fragments, and Aelius Gallus from whom one fragment is taken; but omitting Servius Sulpicius Rufus, who is represented by 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, Geschichte des Röm. Privatrechts, p224).
The following is the list of Jurists from whose writings the Digest was constructed, as it is given in the Palingenesia of Hommelius, who has arranged the matter taken from each writer under his name, and placed the names in alphabetical order. The dates of the Jurists are chiefly founded on the authority of Zimmern. The figures in the third column indicate the proportions contributed to the Digest by each Jurist, estimated in the pages of Hommelius: (a) denotes that the contribution is under one page of the Palingenesia. This list includes Sabinus. 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, are the largest.
|Sextus Caecilius Africanus||Hadrian and the Antonini||24|
|Alfenus Varus||a pupil of Servius Sulpicius Rufus and contemporary with Cicero||9|
|Julius Aquila||perhaps about the time of Sep. Severus||(a)|
|Aurelius Arcadius Charisius||Constantine the Great||2½|
|Juventius Celsus||Domitian and Hadrian||23|
|Gaius||Hadrian and the Antonini||72|
|C. Aelius1 Gallus||a contemporary of Cicero||(a)|
|Claudius Hermogenianus||Constantine the Great||9½|
|Priscus Javolenus||Nerva and Hadrian||23½|
|Salvius Julianus||a pupil of Javolenus||90|
|M. Antistius Labeo||Augustus||12|
|Aemilius Macer||Alex. Severus||10|
|Lucius Volusius Maecianus||Antoninus Pius||8|
|Lucius Ulpius Marcellus||The Antonini||32½|
|Aelius Marcianus||Caracalla and Alex. Severus||38|
|Junius Mauricianus||Antoninus Pius||1½|
|Herennius Modestinus||a pupil of D. Ulpianus||41½|
|Quintus Mucius Scaevola||Pontifex Maximus, consul B.C. 95||1|
|Lucius Aemilius Papinianus||S. Severus and Caracalla||104|
|Justus Papirius||M. Aurelius||2¼|
|Julius Paulus||Alex. Severus||297|
|Claudius Saturninus||The Antonini||1|
|Qu. Cervidius Scaevola||The Antonini||78½|
|Clemens Terentius||Hadrian and the Antonini||3½|
|Q. Sep. Florens Tertullianus||S. Severus and Caracalla||1¼|
|Claudius Tryphoninus||S. Severus and Caracalla||22|
|Salvius Aburnus Valens||Hadrian and Antoninus Pius||3|
|Domitius Ulpianus||S. Severus and Alex. Severus||610|
It follows from the instructions of the Emperor and the plan of the work that the extracts from the Jurists are not always given in their exact words. It is probable that many short passages were interpolated, or altered, as a matter of necessity, though there seems to be no reason for supposing that these changes were carried farther than the nature of the case required. Still there is no doubt that the changes are such that the extracts from the old Jurists cannot be used for many purposes without some caution and judgment.
The distribution of the matter of the Digest into Books and Titles his evidently been made according to a plan, as will be obvious on inspecting the list of Tituli prefixed to the editions. Thus the 28th book treats of testaments, of the institution of a heres, &c., and the 29th of military testaments, and of codicils, &c.; in fact of matters appertaining to universal succession by testament: the 30th, 31st, and 32d books treat of legacies and fiduciary p860bequests. There is a method of arrangement therefore so far as generally to bring things of the same kind together, but the compilation has no claims to being considered as a scientific arrangement of the matter of law. And indeed the compilers were evidently fettered in this respect 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.
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. This subject is examined in a very learned essay by Bluhme, entitled "Die Ordnung der Fragmente in den Pandektentiteln" (Zeitschrift, 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 3d book, the first seven extracts are headed as follows: "Ulpianus Libro sexagesimo quarto ad Edictum"; "Idem Libro primo Fideicommissorum"; "Idem Libro quarto ad Sabinum"; "Paulus Libro primo ad Sabinum"; "Julianus Libro trigesimo tertio Digestorum"; "Paulus Libro secundo ad Sabinum". These will serve as examples 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 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 been altered; and the several works generally follow in both these titles in the same order. A similar remark appears 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 connection, 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, may 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 essay, if read in connection 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 Dogmatic 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 p861application." (Savigny, Geschichte des Röm. Rechts in Mittelalter, I p14).
There are numerous manuscripts of the Digest, both in libraries of the Continent and of Great Britain. A list of the MSS. of the Corpus Juris in the libraries of this country, which are principally in the Colleges of Oxford and Cambridge, is given by Dr. Hach in the Zeitschrift (vol. V). But the MSS. of the Digest generally contain only parts of the work, and are not older than the twelfth century. The MS. called the Florentine is complete and probably as old as the seventh century. It is generally said that it had been kept at Amalfi time out of mind, and was given to the Pisans by Lotharius the Second, after the capture of Amalfi A.D. 1137, as a memorial of his gratitude to them for their aid against Roger the Norman. The Pisans kept it till their city was taken by the Florentines under Gino Caponi A.D. 1406, who carried this precious MS. to Florence where it is still preserved. There is however pretty good evidence that the MS. was not found at Amalfi. Odofredus says, that it was transmitted to Pisa by Justinian, and Bartolus adds, that it always had been, and then was at Pisa. At any rate it is the oldest MS. of the Pandectae. An exact copy of this MS. was published at Florence in 1553, folio, with title "Digestorum seu Pandectarum Libri Quinquaginta Ex Florentinis Pandectis repraesentati; Florentiae In Officina Laurentii Tarrentini Ducalis Typographi MDLIII Cum Summi Pontif. Car. V Imp. Henrici II Gallorum Regis, Eduardi VI Angliae regis, Cosmi Medicis Ducis Florent. II Privilegio." The facts relating to the history of the MS. appear from the dedication of Franciscus Taurellius to Cosmo I, Duke of Florence. Laelio Torelli and his son Francisco superintended the printing of the edition of this splendid work, which is invaluable to a scholar. The orthography of the MS. has been scrupulously observed. Those who cannot consult this work may be satisfied with the edition of the Corpus Juris by Charondas, which the distinguished printer of that edition, Christopher Plantinus, affirms to be as exact a copy of the Florentine edition as it could be made (Antwerp, 1575). As to the other editions of the Digest, see Corpus Juris.
1 He must not be confounded with C. Aquilius Gallus, one of the masters of Servius Sulpicius, from whom there is no extract in the Digest.
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