pandectae
PANDECTAEor 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. 6. 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, 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 AfricanusHadrian and the Antonines23 1/2Alfenus VarusA pupil of Servius Sulpicius and contemporary of Cicero9Furius AnthianusUnknown, last but two in Florentine Index (a) Julius AquilaIn Florentine Index, Gallus Aquila; unknown; in Index between Marcianus and Modestinus (a) Aurelius Arcadius CharisiusConstantine2 1/2CallistratusSeverus and Caracalla15Juventius CelsusDomitian and Hadrian14FlorentinusUnknown, but cf. Dig. 41, 1, 164GaiusHadrian and the Antonines63C. Aelius GallusA contemporary of Cicero (a) Claudius HermogenianusConstantine the Great9 1/2Priscus JavolenusTrajan and Hadrian23P. Salvius JulianusHadrian68M. Antistius LabeoAugustus10Aemilius MacerAlex. Severus10Lucius Volusius MaecianusAntoninus Pius7Lucius Ulpius MarcellusThe Antonines21Aelius MarcianusCaracalla and Alexander Severus36Junius MauricianusAntoninus Pius (a) Rutilius MaximusUnknown; in the Index last but one. (a) Arrius MenanderCaracalla2Quintus Mucius ScaevolaPontifex Maximus, Consul B.C. 95 (a) Herennius ModestinusA pupil of Ulpian40Priscus NeratiusTrajan and Hadrian7 1/2L. Aemilius PapinianusSeverus and Caracalla92Justus PapiriusCommodus2Julius PaulusAlex. Severus268Sextus PomponiusHadrian and the Antonines70ProculusTiberius and his successors6Licinius RufinusCaracalla1Claudius SaturninusThe Antonines1Q. Cervidius ScaevolaThe Antonines74 1/2Paternus TarrentenusCommodus (a) Clemens TerentiusAntoninus Pius3 1/2Q. Sept. Florens TertullianusThe Antonines1Claudius TryphoninusCaracalla18Salvius Aburnus ValensHadrian and Antoninus Pius3Venuleius SaturninusThe Antonines10Domitius UlpianusS. Severus and Alex. Severus610
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 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 CODEXand INSTITUTIONESwill 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, 1. 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]