The Novels of Justinian were subsequently published, being the new ordinances of the emperor, and the changes he thought proper to make, and are therefore a high authority.
The Code, Pandects, Institutes, and Novels of Justinian, comprise the Roman law, as received in Europe, in the form given by the school of Bologna, and is called the "Corpus Juris Civilis." "It was in that form," says Savigny, "that the Roman law became the common law of Europe; and when, four centuries later, other sources came to be added to it, the Corpus Juris of the school of Bologna had been so universally received, and so long established as a basis of practice, that the new discoveries remained in the domain of science, and served only for the theory of the law. For the same reason, the Anti-Justinian law is excluded from practice." [Footnote: Savigny, Droit Romani, vol. i. p. 68.] After Justinian, the old texts were left to moulder as useless though venerable, and they have nearly all disappeared. The Code, the Pandects, and the Institutes, were declared to be the only legitimate authority and alone were admitted to the tribunals or taught in the schools. The rescripts of the early emperors recognized too many popular rights to suit the despotic character of Justinian, and the older jurists, like the Scaevolas, Sulpicius, and Labeo, were distasteful from their sympathy with free institutions. Different opinions have been expressed by the jurisconsults as to the merits of the Justinian collection. By some it is regarded as a vast mass of legal lumber; by others, as a beautiful monument of human labor. After the lapse of so many centuries, it is certain that a large portion of it is of no practical utility, since it is not applicable to modern wants. But again, no one doubts that it has exercised a great and good influence on moral and political science, and introduced many enlightened views concerning the administration of justice, as well as the nature of civil government, and thus has modified the codes of the Teutonic nations, which sprang up on the ruins of the old Roman world. It was used in the Greek empire until the fall of Constantinople. It never entirely lost authority in Italy, although it remained buried till the discovery of the Florentine copy of the Pandects at the siege of Amalfi in 1135. Peter Valence, in the eleventh century, made use of it in a law-book which he published. With the rise of the Italian cities, the study of Roman law revived, and Bologna became the seat from which it spread over Europe. In the sixteenth century, the science of theoretical law passed from Italy to France, under the auspices of Francis I., when Cujas or Cujacius became the great ornament of the school of Bourges, and the greatest commentator on Roman law until Dumoulin appeared. Grotius, in Holland, excited the same interest in civil law that Dumoulin did in France, followed by eminent professors in Leyden and the German universities. It was reserved for Pothier, in the middle of the eighteenth century, to reduce the Roman law to systematic order—one of the most gigantic tasks which ever taxed the industry of man. The recent discoveries, especially that made by Niebuhr, of the long lost work of Gaius have given a great impulse to the study of Roman law in Germany, and to this impulse no one has contributed so greatly as Savigny of Berlin.
The great importance of the subject demands a more minute notice of the principles of the Roman law, than what the limits of this work should properly allow. I shall therefore endeavor to abridge what has been written by the more eminent authorities, taking as a basis the late work of Lord Mackenzie and the learned and interesting essay of Professor Maine.
[Sidenote: Law of persons.]
The Institutes of Justinian commenced with the law of persons, recognizing the distinction of ranks. All persons are capable of enjoying civil rights, but not all in the same degree. Greater privileges are allowed to men than to women, to freemen than to slaves, to fathers than to children.
[Sidenote: Equality of citizens.]
In the eye of the law all Roman citizens were equal, wherever they lived, whether in the capital or the provinces. Citizenship embraced both political and civil rights. The political rights had reference to the right of voting in the comitia, but this was not considered the essence of citizenship, which was the enjoyment of the connubium and commercium. By the former the citizen could contract a valid marriage, and acquire the rights resulting from it, particularly the paternal power; by the latter he could acquire and dispose of property. Citizenship was acquired by birth and by manumission; it was lost when a Roman became a prisoner of war, or had been exiled for crime, or became a citizen of another state. An unsullied reputation was necessary for a citizen to exercise his rights to their full extent.
[Sidenote: Slaves.]
The Roman jurists acknowledged all persons originally free by natural law; and, while they recognized slavery, ascribed the power of masters entirely to the law and custom of nations. Persons taken in war were considered at the absolute control of their captors, and were therefore, de facto, slaves; and the children of a female slave followed the condition of their mother, and belonged to her master. But masters could manumit their slaves, who thus became Roman citizens, with some restrictions. Until the time of Justinian, they were not allowed to wear the gold ring, the distinguishing symbol of a man born free. This emperor removed all restrictions between freedmen and citizens. Previously, after the emancipation of a slave, he was bound to render certain services to his former master as patron, and if the freedman died intestate his property reverted to his patron.
[Sidenote: Marriage.]