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Tribonian atone for his baseness, if he degraded the sanctity of his profession, and, if laws were every day enacted, modified, or repealed, for the base consideration of his private emolument. In the sedition of Constantinople, his removal was granted to the clamours, perhaps to the just indignation, of the people; but the quæstor was speedily restored, and till the hour of his death he possessed, above twenty years, the favour and confidence of the emperor. His passive and dutiful submission has been honoured with the praise of Justinian himself, whose vanity was incapable of discerning how often that submission degenerated into the grossest adulation. Tribonian adored the virtues of his gracious master : the earth was unworthy of such a prince; and he affected a pious fear that Justinian, like Elijah or Romulus, would be snatched into the air and translated alive to the mansions of celestial glory.?

If Cæsar had achieved the reformation of the Roman law, his The Code of creative genius, enlightened by reflection and study, would have 4.D, 528. Feb. given to the world a pure and original system of jurisprudence. Aprü 7 Whatever flattery might suggest, the emperor of the East was afraid to establish his private judgment as the standard of equity : in the possession of legislative power, he borrowed the aid of time and opinion; and his laborious compilations are guarded by the sages and legislators of past times. Instead of a statue cast in a simple mould by the hand of an artist, the works of Justinian represent a tesselated pavement of antique and costly, but too often of incoherent, fragments. In the first

year of his reign, he directed the faithful Tribonian and nine | learned associates to revise the ordinances of his predecessors,

as they were contained, since the time of Hadrian, in the Gregorian, Hermogenian, and Theodosian codes; to purge the errors and contradictions, to retrench whatever was obsolete or superfluous, and to select the wise and salutary laws best adapted to the practice of the tribunals and the use of his subjects. The work was accomplished in fourteen months; and the twelve

books or tables, which the new decemvirs produced, might be | designed to imitate the labours of their Roman predecessors.

75 This story is related by Hesychius (de Viris Illustribus), Procopius (Anecdot. C. 13), and Suídas (tom. iii. p. 501). Such flattery is incredible !

Nihil est quod credere de se

Non possit, cum laudatur Dis æqua potestas.
Fontenelle (tom. i. p. 32-39) has ridiculed the impudence of the modest Virgil.
But the same Fontenelle places his king above the divine Augustus ; and the sage
Boileau has not blushed to say, " Le destin à ses yeux n'oseroit balancer". Yet
neither Augustus nor Louis XIV. were fools.

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15-A.D. 533, Doc. 16

cessors.

The new code of Justinian was honoured with his name, and confirmed by his royal signature; authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magistrates of the European, the Asiatic, and

afterwards the African provinces; and the law of the empire was Tho Pandects proclaimed on solemn festivals at the doors of churches. A A.D. 330, Dec. more arduous operation was still behind : to extract the spirit of

jurisprudence from the decisions and conjectures, the questions and disputes, of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the emperor to exercise an absolute jurisdiction over the works of their prede

If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the DIGEST or PANDECTS,76 in three years, will deserve praise or censure according to the merit of the execution. From the library of Tribonian they chose forty, the most eminent civilians of former times : 77 two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully recorded that three millions of lines or sentences were reduced, in this abstract, to the moderate number of one hundred and fifty thousand. The edition of this great work was delayed a month after that of the INSTITUTES ; and it seemed reasonable that the elements should precede the digest of the Roman law. As soon as the emperor had approved their labours, he ratified, by his legislative power, the speculations of these private citizens; their commentaries on the Twelve Tables, the Perpetual Edict, the laws of the people, and the decrees of the senate, succeeded to the authority of the text; and the text was

78

76 II óvdektai (general receivers) was a common title of the Greek miscellanies (Plin. Præfat. ad Hist. Natur.). The Digesta of Scævola, Marcellinus, Celsus, were already familiar to the civilians : but Justinian was in the wrong when he used the two appellations as synonymous. Is the word Pandects Greek or Latinmasculine or feminine? The diligent Brenckman will not presume to decide these momentous controversies (Hist. Pandect. Florentin. p. 300-304).

77 Angelus Politianus (l. v. Epist. ult.) reckons thirty-seven (p. 192-200) civilians quoted in the Pandects—a learned, and, for his times, an extraordinary list. The Greek Index to the Pandects enumerates thirty-nine ; and forty are produced by the indefatigable Fabricius (Bibliot. Græc. tom. iii. p. 488-502). Antoninus Augustus[leg. Antonius Augustinus] (de Nominibus propriis Pandect. apud Ludewig, p. 283) is said to have added fifty-four names; but they must be vague or secondhand references.

78 The Etixoi of the ancient Mss. may be strictly defined as sentences or periods of a complete sense, which, on the breadth of the parchment rolls or volumes, composed as many lines of unequal length. The number of Srixoi in each book served as a check on the errors of the scribes (Ludewig, p. 211-215, and his original author Suicer, Thesaur. Ecclesiast, tom. i. p. 1021-1036).

dects

abandoned, as an useless, though venerable, relic of antiquity. The Code, the Pandects, and the Institutes were declared to be the legitimate system of civil jurisprudence; they alone were admitted in the tribunals, and they alone were taught in the academies of Rome, Constantinople, and Berytus. Justinian addressed to the senate and provinces his eternal oracles ; and his pride, under the mask of piety, ascribed the consummation of this great design to the support and inspiration of the Deity.

Since the emperor declined the fame and envy of original Praise and composition, we can only require at his hands method, choice, code and parand fidelity, the humble though indispensable virtues of a compiler. Among the various combinations of ideas, it is difficult to assign any reasonable preference; but, as the order of Justinian is different in his three works, it is possible that all may be wrong, and it is certain that two cannot be right. In the selection of ancient laws, he seems to have viewed his predecessors without jealousy and with equal regard : the series could not ascend above the reign of Hadrian, and the narrow distinction of Paganism and Christianity, introduced by the superstition of Theodosius, had been abolished by the consent of mankind. But the jurisprudence of the Pandects is circumscribed within a period of an hundred years, from the Perpetual Edict to the death of Severus Alexander; the civilians who lived under the first Cæsars are seldom permitted to speak, and only three names can be attributed to the age of the republic. The favourite of Justinian (it has been fiercely urged) was fearful of encountering the light of freedom and the gravity of Roman sages. Tribonian condemned to oblivion the genuine and native wisdom of Cato, the Scævolas, and Sulpicius; while he invoked spirits more congenial to his own, the Syrians, Greeks, and Africans, who flocked to the Imperial court to study Latin as a foreign'tongue, and jurisprudence as a lucrative profession. But the ministers of Justinian were instructed to labour, not for the curiosity of antiquarians, but for the immediate benefit of his subjects. It was their duty to select the useful and practical parts of the Roman law; and the writings of the old republicans, however curious or excellent, were no longer suited to the new system of manners, religion, and government. Perhaps, if the preceptors and friends of Cicero were still alive, our candour would acknowledge that,

79 An ingenious and learned oration of Schultingius (Jurisprudentia Ante-Justinianea, p. 883-907) justifies the choice of Tribonian, against the passionate charges of Francis Hottoman and his sectaries. VOL. IV.

30

79

except in purity of language, 80 their intrinsic merit was excelled by the school of Papinian and Ulpian. The science of the laws is the slow growth of time and experience, and the advantage both of method and materials is naturally assumed by the most recent authors. The civilians of the reign of the Antonines had studied the works of their predecessors; their philosophic spirit had mitigated the rigour of antiquity, simplified the forms of proceeding, and emerged from the jealousy and prejudice of the rival sects. The choice of the authorities that compose the Pandects depended on the judgment of Tribonian : but the power of his sovereign could not absolve him from the sacred obligations of truth and fidelity. As a legislator of the empire, Justinian might repeal the acts of the Antonines, or condemn, as seditious, the free principles which were maintained by the last of the Roman lawyers. 81 But the existence of past facts is placed beyond the reach of despotism; and the emperor was guilty of fraud and forgery, when he corrupted the integrity of their text, inscribed with their venerable names the words and ideas of his servile reign,82 and suppressed, by the hand of

power,

the

pure and authentic copies of their sentiments. The changes and interpolations of Tribonian and his colleagues are excused by the pretence of uniformity; but their cares have been insufficient, and the antinomies or contradictions of the Code and Pandects still exercise the patience and subtlety of modern civilians. 83

A rumour devoid of evidence has been propagated by the enemies of Justinian: that the jurisprudence of ancient Rome

Loss of the ancient jurisprudenco

80 Strip away the crust of Tribonian, and allow for the use of technical words, and the Latin of the Pandects will be found not unworthy of the silver age. It has been vehemently attacked by Laurentius Valla, a fastidious grammarian of the xvth century, and by his apologist Floridus Sabinus. It has been defended by Alciat and a nameless advocate (most probably James Capellus). Their various treatises are collected by Duker (Opuscula de Latinitate veterum juris consultorum, Lugd. Bat. 1721, in 12mo). [It has been pointed out by Warnkönig that Valla eulogized the language of Justinian's lawyers.]

si Nomina quidem veteribus servavimus, legum autem veritatem nostram fecimus. Itaque siquid erat in illis seditiosum, multa autem talia erant ibi reposita, hoc de. cisum est et definitum, et in perspicuum finem deducta est quæque lex (Cod. Justinian. 1. i. tit. xvii. leg. 3, No. 10). A frank confession! [Warnkönig pointed out that seditiosum means disputed, not seditious.]

82 The number of these emblemata (a polite name for forgeries) is much reduced by Bynkershoek (in the iv. last books of his Observations), who poorly maintains the right of Justinian and the duty of Tribonian.

°83 The antinomies, or opposite laws of the Code and Pandects, are sometimes the cause, and often the excuse, of the glorious uncertainty of the civil law, which so often affords what Montaigne calls" Questions pour l'Ami". See a fine passage of Franciscus Balduinus in Justinian (1. ii. p. 259, &c. apud Ludewig, p. 305, 306).

was reduced to ashes by the author of the Pandects, from the vain persuasion that it was now either false or superfluous. Without usurping an office so invidious, the emperor might safely commit to ignorance and time the accomplishment of this destructive wish. Before the invention of printing and paper, the labour and the materials of writing could be purchased only by the rich; and it may reasonably be computed that the price of books was an hundredfold their present value. 84 Copies were slowly multiplied and cautiously renewed; the hopes of profit tempted the sacrilegious scribes to eraze the characters of antiquity; and Sophocles or Tacitus were obliged to resign the parchment to missals, homilies, and the golden legend.85

If such was the fate of the most beautiful compositions of genius, what stability could be expected for the dull and barren works of an obsolete science? The books of jurisprudence were interesting to few and entertaining to none; their value was connected with present use; and they sunk for ever as soon as that use was superseded by the innovations of fashion, superior merit, or public authority. In the age of peace and learning, between Cicero and the last of the Antonines, many losses had been already sustained, and some luminaries of the school, or forum, were known only to the curious by tradition and report. Three hundred and sixty years of disorder and decay accelerated the progress of oblivion; and it may fairly be presumed that of the writings which Justinian is accused of neglecting many were no longer to be found in the libraries of the East.86 The copies of Papinian or Ulpian, which

84 When Fust, or Faustus, sold at Paris his first printed Bibles as manuscripts, the price of a parchment copy was reduced from four or five hundred to sixty, fifty, and forty crowns. The public was at first pleased with the cheapness, and at length provoked by the discovery of the fraud (Mattaire, Annal. Typograph. tom. i. p. 12; first edition).

85 This execrable practice prevailed from the viiith, and more especially from the xiith, century, when it became almost universal (Montfaucon, in the Mémoires de l'Académie, tom. vi. p. 606, &c. Bibliothèque Raisonnée de la Diplomatique, tom. i. p. 176).

88 Pomponius (Pandect. 1. i. tit. ii. leg. 2[leg. 30]) observes that of the three foun. ders of the civil law, Mutius, Brutus, and Manilius, extant volumina, Scripta Manilii monumenta ; that of some old republican lawyers, hæc versantur eorum scripta inter manus hominum. Eight of the Augustan sages were reduced to a compendium : of Cascellius, scripta non extant sed unus liber, &c.; of Trebatius, minus frequentantur; of Tubero, libri parum grati sunt. Many quotations in the Pandects are derived from books which Tribonian never saw; and, in the long period from the viith to the xiiith century of Rome, the apparent reading of the moderns successively depends on the knowledge and veracity of their predecessors. (The chief monuments of Roman law previous to Justinian are: (1) the Fragments of Ulpian, discovered in 1544 ; (2) the Commentaries of Gaius, discovered at Verona in 1816;

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