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prosecution of an appeal. In the earlier form of the new system the judge appealed against himself, prepared a statement of the case for the opinion of the emperor, and, after appending to it the arguments and counter-arguments (libelli refutatorii) of both the parties, furnished to him in writing at his request, forwarded it to the proper office (scrinium epistolarum), attached to the emperor's court. The parties remained at home in their province, and only in case of a year's delay appeared in person at the court to press for the appeal to be proceeded with or finally dismissed.

Theodosius II. introduced an important change in this procedure by substituting for the emperor's court, in the case of all appeals from judges below the highest class of illustres, a special appeal court, composed of the Prætorian Præfect of the East and the Quæstor of the Sacred Palace, sitting as a joint commission representing the emperor. Before this court appeals were to be prosecuted no longer by way of mere private reference (consultatio) from the judge of first instance, but in the same way as ordinary appeals, prosecuted by the parties themselves before a competent appeal court, with the customary formalities relative to the communications (literæ dimissoriæ, apostoli) proceeding from the judge appealed against, to the statements of the parties, and to the time allowed for completing their cases severally (dies fatalis). In the case of appeals to the emperor in person from the judges belonging to the class illustres, the method of reference without the further intervention of the parties remained as before. In this last case the hearing of the appeal took place in the consistorium, or private council chamber of the emperor, constituted as already described, and the final judgment took the well-known form of an imperial rescript.

Justinian made little change in the system of appeals thus formulated by his predecessor, though, as with almost all other matters, he kept introducing trifling changes up to the close of his reign. The appeals before the court constituted by the Prætorian Præfect of the East and the Quastor of the Sacred Palace remained as before; though

it would appear that in some points he preserved or reintroduced a memory of the system of appeals before the emperor in person, for which this court was a substitute, by prescribing outward solemnities and formalities which belonged to the imperial court, and had hitherto only been in use when appeals were prosecuted by the method of reference called consultatio. Some slight changes were also introduced with respect to the several parts taken by the judge appealed against, and by the parties to the appeal. The parties themselves henceforth furnished all the documents to the court of appeal; the somewhat minute refinements with respect to the time allowed for completing the case on each side (dics fatalis) were abolished, and a fixed period of one or two years (varied at different epochs) was definitely assigned for completing the proceedings, without any extension being allowed. No new matter could be introduced on the appeal; and in the case of appeals which came before the emperor's own council chamber, abbreviated statements, or précis of the arguments on both sides, had to be prepared by the proper officers (magistri scriniorum).

L. 30, § 1, C.
(vii. 62). Beth.
Hole. iii.§ 160.

With respect to execution, the universal rule was that while the most effectual remedy was to be accorded, the magistrate was yet to employ civil and not mili- L. 5, D. (xlii. tary instruments.

1).

Execution is indeed the end, as it was historically the beginning of law, and this is nowhere more signally illustrated than in the history of the old legal action of pignoris capio, which at first was a mere substitute for legal proceedings, and, a thousand years later, became the culmination of them.

PART III.

THE CIVIL LAW FROM JUSTINIAN TO
NAPOLEON I.

CHAPTER I.

THE CIVIL LAW IN THE EAST.

§ 1. In the Byzantine Empire.

THE general fortunes of the civil law in the East, subsequently to the legislation of Justinian, will be most clearly exhibited by distributing the time intervening between his epoch and that of the prevalence of Napoleon's legislation into three periods, the separation of which will be seen to be not entirely arbitrary, but justified, and even suggested, by purely historical considerations. The periods are as follows:

(1) That between the death of Justinian and the accession of Basilius Macedo (A.D. 565-867).

(2) That between the accession of Basilius Macedo to the capture of Constantinople by the Ottoman Turks (A.D. 867-1453).

(3) That between the capture of Constantinople and the era of the Code Napoléon (A.D. 1453 to (say) 1800).

(1) THE PERIOD BETWEEN THE DEATH OF JUSTINIAN AND THE ACCESSION OF BASIL (A.D. 565-867).

The history of the first three hundred years which followed the legislation of Justinian is determined more by the political vicissitudes of the Byzantine Empire than by what may be called the natural laws of legal growth. Opposed to the due influence of the aggregate body of Justinian's compilations were: (1) The Latin language in which they were written; (2) the diversity of Greek from Latin customs, traditions, and ideas; and (3) the constantly retreating limits of the Empire under Justinian's weak and incompetent successors.

For about forty years after the death of Justinian, that is, up to the accession of Phocas, in A.D. 602, Latin was still the official language of the courts of justice and administration, but the internal disorders, and the invasions of the Empire in the time of Maurice (A.D. 582), and of Phocas, prevented this artificial retention of the linguistic tie to Rome being persisted in.* Indeed, Herennius Modestinus, writing at the beginning of the third century, on the grounds of exemption for guardians and trustees. in guardianship, and adopting (earlier, it is said, than any other legal writer) the Greek language, remarked on the difficulty of aptly expressing Roman institutions in a new tongue (δυσφραςτά είναι αυτὰ νομιζόμενα πρὸς τὰς τοιαύτας μeraßodás) § 1, L. 1, D. (xxvii. 1).

Justinian published most or all of his Novells in Greek, and his successors, Justin, Tiberius, and Maurice, who all published Novells, followed his example. There is a curious passage in Gaius' Institutes in which the transition in legal language from an exclusive use of Latin to the use of Latin or Greek is witnessed before the end of the second century. In the ninety-third section of the third book, it is said that a stipulation containing the terms spondes, spondeo can only be in Latin, and does not admit

* See the authorities on this point collected in Duck's "De Usu et Authoritate Juris Civilis," p. 56.

of interpretation, but every other form of stipulation can be in Latin or Greek, whatever the nationality of the contractors, provided they both understand the language employed.

It is well known that in the introductory enactments by which Justinian announced the plan of the Digest (C. Deo auctore, §§ 12, 13, C. santa § 21) he rigidly restricted the right of commenting upon it, and even of annotating it, but allowed translations of words and expressions from Latin and Greek (kaтá móda) and also classified tables of contents (indices) and references to parallel passages (Taparirλa) in other parts of the whole legal system.

Thus, in spite of the obstacles which the differences of language opposed to the diffusion and influence of far the largest portion of Justinian's compilations, the way was prepared for maintaining them in use, at any rate for purposes of learned reference and for facilitating the study of them by purely Greek readers. This result was further promoted by the elaborate provision which Justinian made for legal education in the chief towns of the Empire, that is, in Constantinople and Berytus. If he abolished the existing law schools in Athens and Alexandria and elsewhere, it was, according to his own statement (constitutio omnem rei publica, § 7), because of the undisciplined manner in which the education was conducted. In Constantinople and Berytus the utmost pains were taken to organize the educational system, to provide a high order of superintending professors (antecessores), four for each city, and to systematize the study of the whole of the lately published treatises. The result is seen in the number of Greek translations and commentaries, or abstracts of different parts of Justinian's works, which shortly appeared, and which must have had the most important bearing on the continuity of influence exercised in the Greek Empire by those works.

Of these, one of the first and most notable is Theophilus's Greek translation, or rather paraphrase of Justinian's Institutes. The first complete edition in Greek of this treatise was published by Vigilius Zuichemus, professor of

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