The learned Gothofredus, in his Prole gomena to his edition of the Theodosian code, observes that Tribonian and his as• sociates have been guilty of several faults in the compilation of the Code; that the order observed in the succession of the titles is confused, that some of the laws have been mutilated and have been ren dered obscure, that sometimes a law has been divided into two, and at ether times two have been reduced to one; that laud have been attributed to emperors w ho were not the authors of them, or had given contrary decisions ; all whie,, would be still more injurious to the study of the Roman law, if we had not the Theodosian code, which is of great use towards rightly understanding many parts of the code of Justinian.
In the year following the publication of the first edition of his Code, Justinian undertook a much greater and more im portant work ; to extract the chief rules of law contained in the writings of the Roman Jurisconsulti. In the course of centuries, under the republic and the em pire, many thousand volumes had been filled with the learned lueubmtions of the jurisconsults, which, as Gibbon ob serves, ' no fortune could purchase, and no capacity could digest' fhe juris consults since the time of Augustus had been divided into opposite schools, and thus conflicting opinions were often produced, which only served to puzzle those who had to decide what was law. To put order into this chaos, was the object of Justinian. In December, 530, he commissioned seventeen lawyers, with Tribonian at their head, with full au thority to select from the works of their predecessors what they should consider the best authorities. They chose about forty out of Tribonian's library, most of them jurisconsults who had lived during that period of the empire which elapsed from Hadrian to the death of Alexander Severus. From the works of these writers, said to have amounted to two thousand treatises, the commission ap pointed by Justinian was to extract and compress all that was suited to form a methodical, complete, and never-failing book of reference for the student of law and the magistrate. Justinian gave Tri bonian and his associates ten years to perform their task ; but they completed it in three years. The work was styled Digesta,'• and also • Pandectse' (" em bracing all "), and was published in De cember, 533. It was declared by the emperor that it should have the force of law all over the empire, and should su persede in the schools of Rome, Con stantinople and Berytus, all the text books of the old jurists, which in future were to be of no authority.
The excerpts from some of the jurists are very few and insignificant. Those from Ulpian, who lived under the em peror Alexander Severus, whose coun sellor he was, amount to more than one third of the whole mass ; the excerpts from Paulus, who likewise lived under Alexander Severus, are the next in amount ; and those from Gaius, who lived under the Antonines ; Salvius Julianus, the compiler of the Edictum Perpetuum [EnniTy, p. 844] ; Papinianus, who lived under Septimius Severus and Caracalla ; and Cervidius Scmvola, who lived under the Antonines, are the next in amount.
The Digesta' is divided into 50 books, and each book is also divided into titles, and subdivided into sections. The follow ing are some of the principal heads. Book i. lays down the general principles and the different kinds of law ; it establishes the division of persons and of things; speaks of senators, and of magistrates and their delegates and assessors : ii. treats of the jurisdiction of magistrates ; of the man ner of bringing actions, of compromises after an action is commenced; iii. ex plains what kind of persons are allowed to sue in law, and it defines who are styled infamous, and as such not per mitted to sue ; it then treats of advocates, proctors, syndics, and others; iv. treats of restitution, compromises, and arbitrations, after which it speaks of innkeepers and others in whose custody we leave any thing ; v. treats of trials ; and complaints against inofficious (inofficiosa) testaments ; vi. treats of real actions and their various kinds to recover property ; vii. treats of personal services (servitutes, as usus fructus) ; viii. speaks of real services both urban and praedial ; ix. treats of damage or crimes committed by a slave, the action of the lex Aquilia, and the action against those who throw anything into the highway by which any one is wounded or injured ; x. treats of mixed actions, the action of partition of an in heritance, &c.; xi. speaks of interrogato ries, and of such matters as are to be heard before the same judge (judex). It also treats of run-away slaves, of dice playing, bribery, corruption, and false reports ; and lastly, of burials and funeral expenses ; xii. explains the action for a
loan, condictions, &c ; xiii. continues the subject of the preceding, and treats of the action upon pawn ; xiv. and xv. treat of actions arising from contracts made by other persons and yet binding upon us ; of the Senatus Consultum Macedonianum ; and of the peculium ; xvi. treats of the Senatus Consultum Velleianum, and of compensation, and the action of deposits; xvii. treats of the mandate, and of part nership (societas); xviii. explains the meaning and forms of the contract of sale, the annulling of this contract ; and treats of gain or loss in the thing sold; xix. treats of bargains, of actions of hiring, of the action called testimatoria, of permutation, of the action called prte scriptis verbis, &c.; xx. treats of pledges and hypothecte, of the preference of cre ditors, of the distraction or sale of things engaged or pawned ; xxt. contains an ex planation of the Curule jEdiles' edict con cerning the sale of slaves and beasts, and also treats of evictions, warranties, &c.; xxii. treats of interest (usurme), fruits, ac cessions to things, and of proofs and pre sumptions, and of ignorance of law and fact ; xxiii. is upon betrotbment (spon salia), marriage, marriage portion (dos), and agreements upon this subject, and lands given in dos ; xxiv. treats of gifts between husband and wife, divorces, and recovery of the marriage portion ; xxv. treats of expenses laid out upon the dos, of actions for the recovery of things carried away by the wife or other person against whom there is no action for theft, of the obligation to acknowledge child ren and provide for them, on the Rescript De luspiciendo Ventre, and lastly of concubines ; xxvi. and xxvii. treat of tu torship and curatorship, and the actions resulting from them ; xxviii. treats of testaments, of the institution and disin heriting of children, of the institution of au heir, of substitutions, &c. ; xxix. treats of military testaments, of the opening of wills, and of codicils; xxx., xxxi., xxxii. treat of legacies and fiduciary bequests in general ; xxxiii. and xxxiv. treat of par ticular legacies, of the ademption of lega cies, and of the Regula Catoniana ; xxxv. treats of legacies on condition, and of the Lex Falcidia ; xxxvi. treats of the Sena tusconsultum Trebellianum, and of fidu ciary bequests, of the time when they be come due, of the security to be given by the heir, &c. ; xxxvii. treats of bonorum possessiones and other matters ; xxxviii. treats of the services due by freedmen to their patrons, of the succession of freed men, of the succession of intestates, of heredes Sui and Legitimi, and of the Senatusconsultum Tertullianum and Or phitianum ; xxxix. explains the means which the law or the praetor provides for preventing any one from receiving dam age to his property, also treats of dona tions generally, and of such as are made in contemplation of death (mortis c.ausil); xl. relates to manumission or freeing of slaves ; xli. treats of the various ways by which the property of things is acquired, and of the acquisition and loss of posses sion, and lastly of lawful causes which au thorize possession and lead to usucaption ; xlii. treats of definitive and interlocutory sentences, of admissions (de confessis) at trial, of the cession of goods, of the causes of seizure and their effects, of the privileges of creditors ; of curators ap pointed for the administration of goods, and of the revocation of acts done to de fraud creditors ; xliii. treats of injunctions (interdicta) and possessory actions ; xliv. speaks of pleas (exceptiones) and de fences, and of obligationes and actions ; xlv. of stipulations, &c. ; xlvi. of sureties, novations, delegations, payments, dis charges, prmtorian stipulations; &c. ; xlvii. treats of private offences; xlviii. treats of public offences ; then follow accusations, inscriptions, prisons ; and lastly it treats of torture, punishments, confiscation, re legation, deportation, and of the bodies of malefactors executed ; xlix. treats of appeals ; and then gives an account of tho rights of the exchequer (fiscus), and of matters relating to captives, military dis cipline, soldiers and veterans; 1. treats of the rights of cities and citizens, of demi riones and their children, of public offices, of immunities, of deputies and ambas sadors ; of the administration of things belonging to cities, of public works, fairs, &c. ; of taxes laid upon the provinces, and it concludes with the signification of legal terms (de verborunt siguificatione) and certain rules or maxims of the of law (de diversis regulis juris antiqui). This is a sketch, but a very imperfect one, of the subject matter of this great compilation.