• LIV.

age

CHAP. the controversies of the sects were in a great measure determined. For that important work, the emperor Hadrian preferred the chief of the Sabinians: the friends of monarchy prevailed; but the moderation of Salvius Julian insensibly reconciled the victors and the vanquished. Like the contemporary philosophers, the lawyers of the of the Antonines disclaimed the authority of a master, and adopted from every system the most probable doctrines.69 But their writings would have been less voluminous, had their choice been more unanimous. The conscience of the judge was perplexed by the number and weight of discordant testimonies, and every sentence that his passion or interest might pronounce, was justified by the sanction of some venerable name. An indulgent edict of the younger Theodosius excused him from the labour of comparing and weighing their arguments. Five civilians, Caius, Papinian, Paul, Ulpian, and Modestinus, were established as the oracles of jurisprudence: a majority was decisive; but if their opinions were equally divided, a casting vote was ascribed to the superior wisdom of Papinian.70

Reforma

Roman

When Justinian ascended the throne, the reformation tion of the of the Roman jurisprudence was an arduous but indispensable task. In the space of ten centuries, the infinite vaA. D. 527, riety of laws and legal opinions had filled many thousand

law by Justinian,

volumes, which no fortune could purchase and no capacity could digest. Books could not easily be found; and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion. The subjects of the Greek provinces were ignorant of the language that disposed of their lives and properties; and the barbarous dialect of the Latins was imperfectly studied in the academies of Berytus and Constantinople. As an Il

69 Mascou, de Sectis, c. viii. p. 120...144. de Heriscundis, a legal term which was applied to these eclectic lawyers: herciscere is synonymous to dividere.

70 See the Theodosian Code, I. i. tit. iv. with Godefroy's Commentary, tom. i. p. 30...35. This decree might give occasion to Jesuitical disputes like those in the Lettres Provinciales, whether a judge was obliged to follow the opinion of Papinian or of a majority, against his judgment, against his conscience, &c. Yet a legislator might give that opinion, however false, the validity, not of truth, but of law.

CHAP.

XLIV.

This ex- Tribonian,

lyrian soldier, that idiom was familiar to the infancy of
Justinian; his youth had been instructed by the lessons
of jurisprudence, and his Imperial choice selected the
most learned civilians of the East, to labour with their
sovereign in the work of reformation." The theory of
professors was assisted by the practice of advocates and
the experience of magistrates; and the whole undertak-
ing was animated by the spirit of Tribonian."
traordinary man, the object of so much praise and censure
was a native of Side in Pamphylia; and his genius, like
that of Bacon, embraced, as his own, all the business and
knowledge of the age. Tribonian composed both in prose
and verse, on a strange diversity of curious and abstruse
subjects:73 a double panegyric of Justinian and the life of
the philosopher Theodotus; the nature of happiness and
the duties of government; Homer's catalogue and the
four and twenty sorts of metre; the astronomical canon of
Ptolemy; the changes of the months; the houses of the
planets; and the harmonic system of the world. To the
literature of Greece he added the use of the Latin tongue;
the Roman civilians were deposited in his library and in
his mind; and he most assiduously cultivated those arts
which opened the road of wealth and preferment. From
the bar of the prætorian præfects, he raised himself to the
honours of quæstor, of consul, and of master of the offices:
the council of Justinian listened to his eloquence and wis-
dom, and envy was mitigated by the gentleness and affa-
bility of his manners. The reproaches of impiety and ava-
rice have stained the virtues or the reputation of Tribo-

71 For the legal labours of Justinian, I have studied the Preface to the Institutes; the first, second, and third Prefaces to the Pandects; the first and second Preface to the Code; and the Code itself (l. i. tit. xvii.de Veteri Jure enucleando). After these original testimonies, I have consulted, among the moderns, Heineccius (Hist. J. R. No. 383...404), Terasson Hist. de la Jurisprudence Romaine, p. 295...356), Gravina (Opp. p. 93... 100), and Ludewig, in his Life of Justinian (p. 19...123. 318...321: for the Code and Novels, p. 209...261. for the Digest or Pandects, p. 262...317).

72 For the character of Tribonian, see the testimonies of Procopius (Persic. I. i. c. 23, 24. Anecdot. c. 13. 20.) and Suidas (tom. iii. p. 501. edit. Kuster). Ludewig (in Vit. Justinian. p. 175...209.) works hard, very hard, to white-wash...the black-a-moor.

73 I apply the two passages of Suidas to the same man ; every circumstance so exactly tallies. Yet the lawyers appear ignorant; and Fabricius is inclined to separate the two characters (Bibliot. Græc. tom. i. p. 341. ü. p. 518. ü, p. 418. xii. p. 346. 353. 474),

A. D. 527....546.

CHAP.
XLIV.

The Code

of Justini

528, Fe

bruary 13;

April 7.

nian. In a bigotted and persecuting court, the principal minister was accused of a secret aversion to the Christian faith, and was supposed to entertain the sentiments of an Atheist and a Pagan, which have been imputed, inconsistently enough, to the last philosophers of Greece. His avarice was more clearly proved and more sensibly felt. If he were swayed by gifts in the administration of justice, the example of Bacon will again occur; nor can the merit of 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 cœlestial glory.74

If Cæsar had achieved the reformation of the Roman an, A. D. law, his creative genius, enlightened by reflection and study, would have given to the world a pure and original A. D. 529, system of jurisprudence. 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

74 This story is related by Hesychius (de Viris Illustribus), Procopius (Anecdot. c. 13), and Suidas (rom. iii. p. 501). Such flattery is incredible! ......Nihil est quod credere de se

Non potest, cum laudatur Diis 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.

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. 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 proclaimed on solemn festivals at the doors of churches. A 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 predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the DIGESTS OF PANDECTS,75 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:76 two thousand treatises

75 Пavdextal (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 Latin....masculine or feminine? The diligent Brenckman will not presume to decide these momentous controversies (Hist. Pandect, Florentin. p. 300....304).

76 Angelus Politianus (1. v. Epist. ult.) reckons thirty-seven (p 192.... 200.) civilians quoted in the Pandects...a learned, and, for his times, an

CHAP.

XLIV.

The Pan-
Digest,
A. D. 530,

dects or

Dec. 15.

A. D. 533,
Dec. 16.

CHAP.
XLIV.

Praise and

the Code

and Pandects.

were comprised in an abridgment of fifty books; and it has been carefully recorded, that three millions of lines or sentences,77 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 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 censure of original composition, we can only require at his hands, method, choice, and 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 extraordinary list. The Greek Index to the Pandects enumerates thirtynine; and forty are produced by the indefatigable Fabricius (Bibliot. Græc. tom. iii. p. 488.502. Antoninus Augustus (de Nominibus Propriis. Pandect. apud Ludewig, p. 283.) is said to have added fifty-four names; but they must be vague or second-hand references.

77 The Erizer 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 Erize 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. 1. p. 1021...1036).