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some venerable name. An indulgent edict of the younger Theodosius excused him from the labor 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.” When Justinian ascended the throne, the reformation of the Roman jurisprudence was an arduous but indispensable task. In the space of ten centuries, the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest. Books could not easily be found; and the judges, * See the Theodosian Code, l. i. tit. iv. with Godefroy's Commentary, tom.i. pp. 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 eonscience, &c. 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 Illyrian 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 labor 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 undertaking was animated by the spirit of Tribonian.” This extraordinary 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;” 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 Praetorian praefects, he raised himself to the honors of quaestor, of consul, and of master of the offices: the council of Justinian listened to his eloquence and wisdom; and envy was mitigated by the gentleness and affability of his manners. The reproaches of impiety and avarice have stained the virtues or the reputation of Tribonian. In a bigoted 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 clamors, perhaps to the just indignation, of the people: but the quaestor was speedily restored, and, till the hour of his death, he possessed, above twenty years, the favor and confidence of the emperor. His passive and dutiful submission has been honored 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 Caesar had achieved the reformation of the IRoman law, his creative genius, enlightened by reflection and study, would have given to the world a pure and original 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 statue cast in a simple mould by the hand of an artist, the works of Justinian represent a tessellated 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 Adrian, in the Gregorian, IIermogenian, 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
Yet a legislator might give that opinion, however false, the validity, not of truth, but of law.f
* We possess (since 1824) sonne interesting information as to the framing of the Theodosian Code, and its ratification at Rome, in the year 438. M. Closius, now professor at 1)orpat in Russia, and M. Peyron, member of the Academy of Turin, have discovered, the one at Milan, the other at Turin, a great part of the five first books of the Code, which were wanting, and besides this, the reports (gesta) of the sitting of the senate at IRome, in which the Code was published, in the year after the marriage of Valentinian III. Among these pieces are the constitutions which nominate commissioners for the formation of the Code; and though there are many points of considerable obscurity in these documents, they communicate many facts relative to this legislation. 1. That Theodosius designed a great reform in the legislation; to add to the Gregorian and Hermogenian codes all the new constitutions from Constantine to his own day ; and to frame a second code for common use, with extracts from the three codes, and srom the works of the civil lawyers. All laws either abrogated or fallen into disuse were to be noted under their proper heads. 2. An ordinance was issued in 429 to form a commission for this purpose, of nine persons, of which Antiochus, as quaestor and pra'fectus, was president. A o commission of sixteen members was issued in 435 under the same residelit. p 3. A code, which we possess under the name of Codex Theodosianus, was finished in 4:38, published in the East, in an ordinance addressed to the Praetorian praefect, Florentinus, and intended to be published in the West. 4. Refore it was published in the West, Valentinian submitted it to the semiate. There is a report of the proceedings of the senate which closed with loud acclamations and gratulations.—From Warnkönig, Histoire du Droit Romain, p. 169.—Wenck has published this work, Codicis #. libri priores. Leipzig, 1825.-M. * Closius of Tubingen communicated to M. Warnkönig the two following constitutions of the emperor Constantine, which he discovered in the Ambrosian library of Milan :- 1. Imper. Constantinus Aug. ad Maximium Praef. Praetorio. Perpetuas prudentum contentiones eruere cupientes, Ulpiani ac Pauli, in Papinianum notas, qui dum ingenii laudem sectantur, non tam corrigere eunu quam depravere maluerunt, aboleri praecepimus. Dat. III. Kalend. Octob. et Const. Cons. et Crispi (321). Idem Aug. ad Maximium Praef. Praet. Universa, quae scriptura Pauli continentur, recepta auctoritate firmanda sunt, et on mi veneratione celebranda. Ideoque sententiarum libros plenissina luce et perfectissima elocutione et justissimä juris ratione succinetos in judiciis prolatos Yalere minimè dubitatur. Dat. W. Kalend. Oct. Trevir. Const. et Max. Coss. (327).-W.
71 For the legal labors of Justinian, I have studied the Preface to the Institutes: the 1st, 2d, and 3d Prefaces to the Pandects; the 1st and 2d 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, pp. 295– 356), Gravina (Opp. pp. 93 10), and Ludewig, in his Life of Justinian (pp. 19–123, § for the Code and Novels, pp. 209-261 ; for the Digest or Pandects, pp. 262-317).
* For the character of Tribonian, see the testimonials of Procopius (Persic. l. i.e. 23, 24. Anecdot. c. 13, 20) and Suidas (tom. iii. p. 501, edit. Kuster). Ludewig (in Wit. Justinian, pp. 175–209) works hard, very liard, to whitewash—the blackamoor. 1* 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 *...* the two characters (Bibliot. Graec. tom. i. p. 341, ii. p. 518, iii. p. 418, xii. pp. 346, 353, 474.)
* This story is related by Hesychius (de Viris Illustribus), Procopius (Anecdot. c 13), and Suiuas (tom iii p. 501). Such flattery is incredible ! Nihil est quod credere de se
Non possit cum laudatur I)iis aequa potestas.
Fontenelle (tom. i. pp. 32-39) has ridiculed the impudence of the modest Virgil. ISut the same Fontenelle places his king above the divine Augustus, and the sage Boileau has not blushed to says." Le destin a ses yeux n'oseroit balancer.” Yet neither Augustus nor Louis XIV. were fools.
roduced, might be designed to imitate the labors of their ł. predecessors. The new CoDE of Justinian was honored 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 DIGEST or PANDECTs,” in three years, will deserve praise of: censure, according to the merit of the execution. *. oc library of Tribonian, they chose forty, the most eminent civilians of former times: "two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully re
75 IIdivöextat (general receivers) was a common title of the Greek miscellanies (Plin. Praefat... ad Hist. Natur.)...The Digesta of Scaevola, 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 Pandeci's Greek or Latin, masculine or feminine ‘’ The diligent Brenckman will not presume to decide these momentous controversies (Hist. Pandect. Florentine, pp. 200-304)."
* Angelus Politianus (l. v. Epist. ult.) reckons thirty-seven (pp. 192–200) civilians quoted in the Pandects--a learned, and for his times, an extraordinary list. The Greek index to the Pondects enumerates thirty-nine, and forty are produced by the indefatigable. Fabricius (Bibliot. Graec. tom. iii. pp. 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.
* The Xroxoi of the ancient MSS. may be strictly defined as sentences or
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 labors, 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 a 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 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 not ascend above the reign of Adrian, 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 a hundred years, from the perpetual edict, to the death of Severus Alexander: the civilians who lived under the first Caesars are seldom permitted to speak, and only three names can be attributed to the age of the republic. The favorite of Justinian (it has been fiercely urged) was fearful of encountering the light of freedom and the gravity of Roman
periods of a complete sense, which, on the breadth of the parchment rolls or volumes, composed as .. lines of unequal length. ... The number of Xroxoi in each, book, served as a check on the errors of the scribes (Ludewig, pp. 211-215; and his original author Suicer. Thesaur. Ecclesiast. tom. i. pp. 1021–1036).