Concerning the Plan of the Digest Addressed to Tribonianus.
The Emperor Cæsar, Flavius, Justinianus, Pious, Fortunate, Renowned, Conquerer
and Triumpher, Ever Augustus, to Tribonianus His Quæstor: 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 Æmilius 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, (this was derived by antiquity from a Greek
word(1))
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.
The Emperor Cæsar, 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 Quæstor 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 Ædiles, 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
Præfectorian 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(2); 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, 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(3) 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 Cæsarea, 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(4); 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.
FOOTNOTES
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