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atone for his baseness, if he degraded the sanctity of his profession; and if laws were every day enacted, modified, or repealed, for the base consideration of his private emolument.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 quæstor 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. 74 If Cæsar had achieved the reformation of the Roman 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 judg ment as the standard of equity in the possession of legisla tive 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 This story is related by Hesychius (de Viris Illustribus), Procopius (Anecdot. c 13), and Suidas (tom iii p 501). Such flattery is incredible! Nihil est quod credere de se Non possit cum laudatur Diis æqua potestas. Fontenelle (tom. i. pp 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. 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, 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 labors of their Roman 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 com. mands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the DIGEST or PANDECTS,75 in three years, will deserve praise censure, according to the merit of the execution. From clibrary of Tribonian, they chose forty, the most eminent civilians of former times: 76 two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully re 73 IIavdeкTai (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 l'andecis 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 (1. v. Epist. ult.) reckons thirty-seven (pp. 192-200) civilians quoted in the Pandects--a learned, and for his tines, an extraordinary list. The Greek index to the Pandects enumerates thirty-nine, and forty are produced by the indefatigable Fabricius (Bibliot. Græc. 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 Erixoi of the ancient MSS. may be strictly defined as sentences or The word Пávdekтaι was formerly in common use. See the preface to Aulus Gellius.-W. VOL. III.-13. 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 Cæsars 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 many lines of unequal length. The number of Erixoi 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). 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 78 were instructed to labor, 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 candor would acknowledge, that, except in purity of language," 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 rigor 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 the 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.80 But the 78 An ingenious and learned oration of Schultingius (Jurisprudentia AnteJustinianea, pp. 883-907) justifies the choice of Tribonian, against the passionate charges of Francis Hottoman and his sectaries. 79 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 Jurisconsultorum, Lugd. Bat. 1721, in 12mo.). So Nomina quidem veteribus servavimus, legum autem veritatem nostram fecimus. Itaque siquid erat in illis seditiosum, multa autem talia erant ibi re Gibbon is mistaken with regard to Valla, who, though he inveighs against the barbarous style of the civilians of his own day, lavishes the highest praise on the admirable purity of the language of the ancient writers on civil law. (M. Warnkonig quotes a long passage of Valla in justification of this observation.) Since his time, this truth has been recognized by men of the highest eminence, such as Erasmus, David Hume, and Runkhenius.-W. 'existence of past facts is placed beyond the reach of despot. ism; 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,81 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.82 A rumor devoid of evidence has been propagated by the enemies of Justinian; that the jurisprudence of ancient Rome 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 labor and the materials of writing could be purchased only by the rich; and it may reasonably be computed, that the price of books was a hundred fold their present value.88 Copies were slowly multiplied and cautiously renewed: the hopes of profit tempted the sacrilegious scribes to erase the characters of antiquity,† and Sophocles or Tacitus were obliged to resign the parchment to missals, homilies, and the golden legend.84 If such posita, hoc decisum est et definitum, et in perspicuum finem deducta est quæque lex (Cod. Justinian. 1. i. tit. xvii. leg. 3, No. 10). A frank confession! * 8 The number of these emblemata (a polite name for forgeries) is much reduced by Bynkershoek (in the four last books of his Observations), who poorly maintains the right of Justinian and the duty of Tribonian. 82 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, pp. 305, 306). 83 When Faust, 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 edit.). This execrable practice prevailed from the viiith, and more especially from *Seditiosum, in the language of Justinian, means not seditious, but disputed -W. Among the works which have been recovered, by the persevering and successful endeavors of M. Mai and his followers to trace the imperfectly erased characters of the ancient writers on these Palimpsests, Gibbon at this period of his labors would have hailed with delight the recovery of the Institutes of Gaius, and the fragments of the Theodosian Code, published by M. Peyron of Turin. ~M. |