Inasmuch as Justinian’s brief reconquest of western portions of the Roman Empire did not extend north of the Alps, his codification was not promulgated in Gaul or Germany. Even in Italy his legislation did not maintain itself in general dominance, especially in the north where the Lombard law narrowed its application. Moreover, throughout the peninsula, the Pandects quickly became as if they were not, and fell into desuetude, if that can be said of a work which had not come into use. This body of jurisprudential law was beyond the legal sense of those monarchically-minded and barbarizing centuries, which knew law only as the command of a royal lawgiver. The Codex and the Novellae were of this nature. They, and not the Digest, represent the influence upon Italy of Justinian’s legislation until the renewed interest in jurisprudence brought the Pandects to the front at the close of the eleventh century. But Codex and Novellae were too bulky for a period that needed to have its intellectual labours made easy. From the first, the Novellae were chiefly known and used in the condensed form given them in the excellent Epitome of Julianus, apparently a Byzantine of the last part of Justinian’s reign.[360] The cutting down and epitomizing of the Codex is more obscure; probably it began at once; the incomplete or condensed forms were those in common use.[361]
It is, however, with the Theodosian Code and certain survivals of the works of the great jurists that we have immediately to do. For these were the sources of the codes enacted by Gothic and Burgundian kings for their Roman or Gallo-Roman subjects. Apparently the earliest of them was prepared soon after the year 502, at the command of Gondebaud, King of the Burgundians. This, which later was dubbed the Papianus,[362] was the work of a skilled Roman lawyer, and seems quite as much a text-book as a code. It set forth the law of the topics important for the Roman provincials living in the Burgundian kingdom, not merely making extracts from its sources, but stating their contents and referring to them as authorities. These sources were substantially the same as those used by the Visigothic Breviarium, which was soon to supersede the Papianus even in Burgundy.
Breviarium was the popular name of the code enacted by the Visigothic king Alaric II. about the year 506 for his provinciales in the south of Gaul.[363] It preserved the integrity of its sources, giving the texts in the same order, and with the same rubrics, as in the original. The principal source was the Theodosian Code; next in importance the collections of Novellae of Theodosius and succeeding emperors: a few texts were taken from the Codes of “Gregorianus” and “Hermogenianus.” These parts of the Breviarium consisted of leges, that is, of constitutions of the emperors. Two sources of quite a different character were also drawn upon. One was the Institutes of Gaius, or rather an old epitome which had been made from it. The other was the Sententiae of Paulus, the famous “Five Books of Sentences ad filium.” This work of elementary jurisprudence deserved its great repute; yet its use in the Breviarium may have been due to the special sanction which had been given it in one of the constitutions of the Theodosian Code, also taken over into the Breviarium: “Pauli quoque sententias semper valere praecipimus.”[364] The same constitution confirmed the Institutes of Gaius, among other great jurisconsults. Presumably these two works were the most commonly known as well as the clearest and best of elementary jurisprudential compositions.
An interesting feature of the Breviarium, and destined to be of great importance, was the Interpretatio accompanying all its texts, except those drawn from the epitome of Gaius. This was not the work of Alaric’s compilers, but probably represents the approved exposition of the leges, with the exposition of the already archaic Sentences of Paulus, current in the law schools of southern Gaul in the fifth century. The Interpretatio thus taken into the Breviarium had, like the texts, the force of royal law, and soon was to surpass them in practice by reason of its perspicuity and modernity. Many manuscripts contain only the Interpretatio and omit the texts.
The Breviarium became the source of Roman law, indeed the Roman law par excellence, for the Merovingian and then the Carolingian realm, outside of Italy. It was soon subjected to the epitomizing process, and its epitomes exist, dating from the eighth to the tenth century: they reduced it in bulk, and did away with the practical inconvenience of lex and interpretatio. Further, the Breviarium, and even the epitomes, were glossed with numerous marginal or interlinear notes made by transcribers or students. These range from definitions of words, sometimes taken from Isidore’s Etymologiae, to brief explanations of difficulties in the text.[365] In like manner in Italy, the Codex and Novellae of Justinian were, as has been said, reduced to epitomes, and also equipped with glosses.
These barbaric codes of Roman law mark the passage of Roman law into incipiently mediaeval stages. On the other hand, certain Latin codes of barbarian law present the laws of the Teutons touched with Roman conceptions, and likewise becoming inchoately mediaeval.
Freedom, the efficient freedom of the individual, belongs to civilization rather than to barbarism. The actual as well as imaginary perils surrounding the lives of men who do not dwell in a safe society, entail a state of close mutual dependence rather than of liberty. Law in a civilized community has the twofold purpose of preserving the freedom of the individual and of maintaining peace. With each advance in human progress, the latter purpose, at least in the field of private civil law, recedes a little farther, while the importance of private law, as compared with penal law, constantly increases.
The law of uncivilized peoples lacks the first of these purposes. Its sole conscious object is to maintain, or at least provide a method of maintaining peace; it is scarcely aware that in maintaining peace it is enhancing the freedom of every individual.
The distinct and conscious purpose of early Teutonic law was to promote peace within the tribe, or among the members of a warband. Thus was law regarded by the people—as a means of peace. Its communication or ordainment might be ascribed to a God or a divine King. But in reality its chief source lay in slowly growing regulative custom.[366] The force of law, or more technically speaking the legal sanction, lay in the power of the tribe to uphold its realized purpose as a tribe; for the power to maintain its solidarity and organization was the final test of its law-upholding strength.
Primarily the old Teutonic law looked to the tribe and its sub-units, and scarcely regarded the special claims of an individual, or noticed mitigating or aggravating elements in his culpability—answerability rather. It prescribed for his peace and protection as a member of a family, or as one included within the bands of Sippe (blood relationship); or as one of a warband or a chief’s close follower, one of his comitatus. On the other hand, the law was stiff, narrow, and ungeneralized in its recognized rules. The first Latin codifications of Teutonic law are not to be compared for breadth and elasticity of statement to the Law of the Twelve Tables. And their substance was more primitive.[367]