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Legal inconatancy of Justinian
the reformer had proscribed, were deemed unworthy of future notice; the Twelve Tables and prætorian edict insensibly vanished; and the monuments of ancient Rome were neglected or destroyed by the envy and ignorance of the Greeks. Even the Pandects themselves have escaped with difficulty and danger from the common shipwreck, and criticism has pronounced that all the editions and manuscripts of the West are derived from one original.87 It was transcribed at Constantinople in the beginning of the seventh century,88 was successively transported by the accidents of war and commerce to Amalphi,89 Pisa,9o and Florence,91 and is now deposited as a sacred relic 92 in the ancient palace of the republic.93
It is the first care of a reformer to prevent any future refor
(3) the Sententiæ of Paulus, which have been preserved as part of the Visigothic Breviarium of Alaric II. All three are edited in Gneist's Syntagma (already cited); and the Commentaries of Gaius and Institutes of Justinian are most conveniently printed here in parallel columns.]
87 All, in several instances, repeat the errors of the scribe and the transpositions of some leaves in the Florentine Pandects. This fact, if it be true, is decisive. Yet the Pandects are quoted by Ivo of Chartres (who died in 1117), by Theobald, archbishop of Canterbury, and by Vacarius, our first professor, in the year 1140 (Selden ad Fletam, c. 7, tom. ii. p. 1080-1085). Have our British Mss. of the Pandects been collated?
88 See the description of this original in Brenckman (Hist. Pandect. Florent. 1. i. c. 2, 3, p. 4-17, and l. ii.). Politian, an enthusiast, revered it as the authentic standard of Justinian himself (p. 407, 408); but this paradox is refuted by the abbreviations of the Florentine Ms. (1. ii. c. 3, p. 117-130). It is composed of two quarto volumes with large margins, on a thin parchment, and the Latin characters betray the hand of a Greek scribe.
89 Brenckman, at the end of his history, has inserted two dissertations, on the republic of Amalphi, and the Pisan war in the year 1135, &c.
90 The discovery of the Pandects at Amalphi (A.D. 1137) is first noticed (in 1501) by Ludovicus Bologninus (Brenckman, l. i. c. 11, p. 73, 74, l. iv. c. 2, p. 417-425), on the faith of a Pisan chronicle (p. 409, 410), without a name or a date. The whole story, though unknown to the xiith century, embellished by ignorant ages and suspected by rigid criticism, is not, however, destitute of much internal proba bility (1. i. c. 4-8, p. 17-50). (Cp. Savigny, Gesch. des röm. Rechts, 3, 83; where the story is rejected.] The Liber Pandectarum of Pisa was undoubtedly consulted in the xivth century by the great Bartolus (p. 406, 407. See l. i. c. 9, p. 50-62).
91 Pisa was taken by the Florentines in the year 1406; and in 1411 the Pandects were transported to the capital. These events are authentic and famous.
92 They were new bound in purple, deposited in a rich casket, and shewn to curious travellers by the monks and magistrates bareheaded, and with lighted tapers (Brenckman. l. i. c. 10, 11, 12, p. 62-93).
93 After the collations of Politian, Bologninus, and Antoninus [leg. Antonius] Augustinus, and the splendid edition of the Pandects by Taurellus (in 1551) [legendum, Taurellius (1553)]. Henry Brenckman, a Dutchman, undertook a pilgrimage to Florence, where he employed several years in the study of a single manuscript. His Historia Pandectarum Florentinorum (Utrecht, 1722, in 4to), though a monument of industry, is a small portion of his original design.
mation. To maintain the text of the Pandects, the Institutes, and the Code, the use of cyphers and abbreviations was rigorously proscribed; and, as Justinian recollected that the Perpetual Edict had been buried under the weight of commentators, he denounced the punishment of forgery against the rash civilians who should presume to interpret or pervert the will of their sovereign. The scholars of Accursius, of Bartolus, of Cujacius, should blush for their accumulated guilt, unless they dare to dispute his right of binding the authority of his successors and the native freedom of the mind. But the emperor was unable to fix his own inconstancy; and, while he boasted of renewing the exchange of Diomede, of transmuting brass into gold,94 he discovered the necessity of purifying his gold from the mixture of baser alloy. Six years had not elapsed from the publication of the Code, before he condemned the imperfect attempt by a new and more accurate edition of the same work; which he second edienriched with two hundred of his own laws and fifty decisions Code. A.D. of the darkest and most intricate points of jurisprudence. Every year, or, according to Procopius, each day, of his long reign was marked by some legal innovation. Many of his acts were rescinded by himself, many were rejected by his successors, many have been obliterated by time; but the number of sixteen EDICTS, and one hundred and sixty-eight NOVELS," has been admitted into the authentic body of the civil jurisprudence. In the opinion of a philosopher superior to the The Novels, prejudices of his profession, these incessant, and for the most part trifling, alterations can be only explained by the venal spirit of a prince who sold without shame his judgments and his laws.96 The charge of the secret historian is indeed explicit and vehement; but the sole instance which he produces may be ascribed to the devotion as well as to the avarice of Justinian. A wealthy bigot had bequeathed his inheritance to the church of Emesa; and its value was enhanced by the
tion of the 534, Nov. 16
94 Χρύσεα χαλκείων, ἑκατόμβοι ̓ ἐννεαβοίων, apud Homerum patrem omnis virtutis (1st Præfat. ad Pandect.). A line of Milton or Tasso would surprise us in an act of Parliament. Quæ omnia obtinere sancimus in omne ævum. Of the first Code, he says (2d Præfat.), in æternum valiturum. Man and for ever!
95 Novelle is a classic adjective, but a barbarous substantive (Ludewig, p. 245). Justinian never collected them himself; the nine collations, the legal standard of modern tribunals, consist of ninety-eight Novels; but the number was increased by the diligence of Julian, Haloander, and Contius (Ludewig, p. 249, 258; Aleman. Not. in Anecdot. p. 98).
96 Montesquieu, Considérations sur la Grandeur et la Décadence des Romains, c. 20, tom. iii. p. 501, in 4to. On this occasion he throws aside the gown and cap of a President à Mortier.
The Institutes. A.D. 533, Nov. 21
I. Of persons. Freemen and alaves
dexterity of an artist, who subscribed confessions of debt and promises of payment with the names of the richest Syrians. They pleaded the established prescription of thirty or forty years; but their defence was overruled by a retrospective edict, which extended the claims of the church to the term of a century: an edict so pregnant with injustice and disorder that, after serving this occasional purpose, it was prudently abolished in the same reign.9 97 If candour will acquit the emperor himself and transfer the corruption to his wife and favourites, the suspicion of so foul a vice must still degrade the majesty of his laws; and the advocates of Justinian may acknowledge that such levity, whatsoever be the motive, is unworthy of a legislator and a man.
Monarchs seldom condescend to become the preceptors of their subjects; and some praise is due to Justinian, by whose command an ample system was reduced to a short and elementary treatise. Among the various institutes of the Roman law,98 those of Caius 99 were the most popular in the East and West; and their use may be considered as an evidence of their merit. They were selected by the Imperial delegates, Tribonian, Theophilus, and Dorotheus: and the freedom and purity of the Antonines was incrusted with the coarser materials of a degenerate age. The same volume which introduced the youth of Rome, Constantinople, and Berytus, to the gradual study of the Code and Pandects is still precious to the historian, the philosopher, and the magistrate. The INSTITUTES of Justinian are divided into four books; they proceed, with no contemptible method, from I. Persons to II. Things, and from things to III. Actions; and the article IV. of Private Wrongs is terminated by the principles of Criminal Law.
I. The distinction of ranks and persons, is the firmest basis of a mixed and limited government. In France, the remains
Procopius, Anecdot. c. 28. A similar privilege was granted to the church of Rome (Novel. ix.). For the general repeal of these mischievous indulgences, see Novel, cxi, and Edict. v.
98 Lactantius, in his Institutes of Christianity, an elegant and specious work, proposes to imitate the title and method of the civilians. Quidam prudentes et arbitri æquitatis Institutiones Civilis Juris compositas ediderunt (Institut. Divin. 1. i. c. 1). Such as Ulpian, Paul, Florentinus, Marcian.
99 The emperor Justinian calls him suum, though he died before the end of the second century. His Institutes are quoted by Servius, Boethius, Priscian, &c. and the epitome by Arrian is still extant. (See the Prolegomena and Notes to the edition of Schulting, in the Jurisprudentia Ante-Justinianea, Lugd. Bat. 1717. Heineccius, Hist. JR. No. 313. Ludewig, in Vit. Just. p. 199.) [See above, p. 467, n. 86.]
of liberty are kept alive by the spirit, the honours, and even the prejudices, of fifty thousand nobles.100 Two hundred families supply, in lineal descent, the second branch of the English legislature, which maintains, between the king and commons, the balance of the constitution. A gradation of patricians and plebeians, of strangers and subjects, has supported the anstocracy of Genoa, Venice, and ancient Rome. The perfect equality of men is the point in which the extremes of democracy and despotism are confounded; since the majesty of the prince or people would be offended, if any heads were exalted above the level of their fellow-slaves or fellow-citizens. In the decline of the Roman empire, the proud distinctions of the republic were gradually abolished, and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the memory of famous ancestors. He delighted to honour with titles and emoluments his generals, magistrates, and senators; and his precarious indulgence communicated some rays of their glory to the persons of their wives and children. But, in the eye of the law, all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty name. The voice of a Roman could no longer enact his laws or create the annual ministers of his power: his constitutional rights might have checked the arbitrary will of a master; and the bold adventurer from Germany or Arabia was admitted, with equal favour, to the civil and military command, which the citizen alone had been once entitled to assume over the conquests of his fathers. The first Cæsars had scrupulously guarded the distinction of ingenuous and servile birth, which was decided by the condition of the mother; and the candour of the laws was satisfied, if her freedom could be ascertained during a single moment between the conception and the delivery. The slaves, who were liberated by a generous master, immediately entered into the middle class of libertines or freedmen; but they could never be enfranchised from the duties of obedience and gratitude;
100 See the Annales Politiques de l'Abbé de St. Pierre, tom. i. p. 25, who dates in the year 1735. The most ancient families claim the immemorial possession of arms and fiefs. Since the Crusades, some, the most truly respectable, have been created by the king, for merit and services. The recent and vulgar crowd is derived from the multitude of venal offices without trust or dignity, which continually ennoble the wealthy plebeians.
Fathers and children
whatever were the fruits of their industry, their patron and his family inherited the third part; or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons; but his indulgence removed the badge of disgrace from the two inferior orders of freedmen whoever ceased to be a slave obtained, without reserve or delay, the station of a citizen; and at length the dignity of an ingenuous birth, which nature had refused, was created, or supposed, by the omnipotence of the emperor. Whatever restraints of age, or forms, or numbers, had been formerly introduced to check the abuse of manumissions and the too rapid increase of vile and indigent Romans, he finally abolished; and the spirit of his laws promoted the extinction of domestic servitude. Yet the eastern provinces were filled, in the time of Justinian, with multitudes of slaves, either born or purchased for the use of their masters; and the price, from ten to seventy pieces of gold, was determined by their age, their strength, and their education.101 But the hardships of this dependent state were continually diminished by the influence of government and religion; and the pride of a subject was no longer elated by his absolute dominion over the life and happiness of his bondsman.102
The law of nature instructs most animals to cherish and educate their infant progeny. The law of reason inculcates to the human species the returns of filial piety. But the exclusive, absolute, and perpetual dominion of the father over his children is peculiar to the Roman jurisprudence,103 and seems to be coeval
101 If the option of a slave was bequeathed to several legatees, they drew lots, and the losers were entitled to their share of his value: ten pieces of gold for a common servant or maid under ten years; if above that age, twenty; if they knew a trade, thirty; notaries or writers, fifty; midwives or physicians, sixty; eunuchs under ten years, thirty pieces; above, fifty; if tradesmen, seventy (Cod. 1. vi. tit. xliii. leg. 3). These legal prices are generally below those of the market.
102 For the state of slaves and freedmen, see Institutes, 1. i. tit. iii. viii. ; 1. ii. tit. ix.; 1. iii. tit. viii. ix. [vii., viii.]. Pandects or Digest, 1. i. tit. v. vi. ; L. xxxviii. tit. i.-iv., and the whole of the xlth book. Code, 1. vi. tit. iv. v. ; l. vii. tit. i.-xxiii. Be it henceforwards understood that, with the original text of the Institutes and Pandects, the correspondent articles in the Antiquities and Elements of Heineccius are implicitly quoted; and with the xxvii. first books of the Pandects, the learned and rational Commentaries of Gerard Noodt (Opera, tom. ii. p. 1-590, the end, Lugd. Bat. 1724).
103 See the patria potestas in the Institutes (1. i. tit. ix), the Pandects (1. i. tit. vi. vii.), and the Code (1. viii. tit. xlvii. xlviii. xlix. [= leg. xlvi., xlvii., xlviii. ed. Krüger]). Jus potestatis quod in liberos habemus proprium est civium Romanorum. Nulli enim alii sunt homines, qui talem in liberos habeant potestatem qualem nos habemus. [Gaius mentions the Galatians as having this power; i. 55; and Cæsar (B. G. 6. 19) states that it existed in Gaul.]