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sages. Tribonian condemned to oblivion the genuine and native wisdom of Cato, the Scaevolas, 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 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.” But the 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,” 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.” 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.” Copies were slowly multiplied and cautiously renewed: the hopes of profit tempted the sacrilegious scribes to erase the characters of antiquity,f and Sophocles or Tacitus were obliged to resign the parchment to missals, homilies, and the golden legend.” If such
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.
* 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 Latimitate veterum Jurisconsultorum, Lugd. Bat. 1721. In 12mo.).
* 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 Walla, 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. Warnkónig 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.
sita, hoc decisum est et definitum, et in perspicuum finem deducta est quacque ex (Cod. Justinian. l. i. tit.xvii. leg. 3, No. 10). A frank confession | * * The number of these eneblemata (a polite name for forgeries) is much reduced by Bynkershoek (in the four last |. of his Observations), who poorly maintains the right of Justinian and the duty of Tribonian. * 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 fille passage of Franciscus Balduinus in Justinian (l. ii. p. 259, &c., apud Ludewig, Wi 395, 306). * When Faust, or Faustus, sold at Paris his first printed Bibles as manuseripts, 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 cheapless, 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
w Seditiosum, in the language of Justinian, means not seditious, but disputed
tAmong 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, *::: the fragments of the Theodosian Code, published by M. Peyron of Turin.
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 forever 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.” The copies of Papinian, or Ulpian, which the reformer had proscribed, were deemed unworthy of future notice; the Twelve Tables and praetorian edicts 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.” It was transcribed at Constantinople in the beginning of the seventh century,” was successfully transported by the accidents of war and commerce to Amalphi,” Pisa,” and Florence,” and is now deposited as a sacred relic” in the ancient palace of the republic.” It is the first care of a reformer to prevent any future reformation. To maintain the text of the Pandects, the Institutes, and the Code, the use of ciphers 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,” 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 enriched with two hundred of his own laws, and fifty decisions 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 hun. dred and sixty-eight Novels,” has been admitted into the authentic body of the civil jurisprudence. In the opinion of a philosopher superior to the 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.” 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 dexterity of an artist, who subscribed confessions of debt and !. of payment with the names of the richest Syrians. hey 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.” If candor will acquit the emperor himself, and transfer the corruption to his wife and favorites, 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,” those of Caius” were the most popular in the East and West; and their use may be considered as
the xiith, century, when it became almost universal (Montfaucon, in the Mémoires de l'Académie, tom. vi. p. 606, &c. Bibliothèque IRaisonnée de la Diplomatique, tom. i. p. o ** Pomponius (Pandect. l. i. tit. ii., leg. 2) observes, that of the three founders of the civil law, Mucius, Brutus, and Manilius, extant volumina, scripta Manilii monumenta; that of some old republican lawyers, haec 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 frequentatur; 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 IRome, the apparent reading of the moderns successively depends on the knowledge and veracity of their predecessors. * 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. pp. 1080–1085). Have our British MSS. of the Pandects been collated 2 * See the description of this original in Brenckman (Hist. Pandect. Florent. l i. c. 2, 3, so 4-17, and l. ii.). Politian, an enthusiast, revered it as the authentic standard of Justinian himself (pp. 407,408); but this paradox is refuted by the abbreviations of the Florentine MS. (l. ii. c. 3, pp. 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. * Bremekman, at the end of his history, has inserted two dissertations on the republic of Amalpili, and the Pi—an war in the year 1135, &c.
80 The discovery of the Pandects at Amalphi (A. D. 1137) is first noticed (in 1501) by Ludovicus Bologninus (Brenckman, l. i. c. 11, pp. 73, 74, l. iv. c. 2, pp. 417-425), on the faith of a Pisan chronicle (pp. 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 probability (l. i. c. 4–8, pp. 17–50). The Liber Pandectarum of Pisa was undoubtedly consulted in the xivth century by the great Bartolus (pp. 406, 407. See l. i. c. 9, pp. 50-62). to 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. * They were new bound in purple, deposited in a rich casket, and shown to curious travellers by the monks ard magistrates bareheaded, and with lighted tapers (Brenckman, l. i. c. 10, 11, 12, pp. 62-93). o: After the collations of Politian, Bologninus, and Antoninus Augustinus, and the splendid edition of the Pandects by Taurellus (in 1551), Henry Brenekman; a Dutchman, undertook a pilgrimage to Florence, where he employed several years in the study of a single manuscript. His Historia Pandectarum Florentimorum (Utrecht, 1722, in 4to.), though a monument of industry, is a small portion of his original design. to Xplorea xaaketov, exatóu Boi' évveaBoiov, apud Homerum patrem omnis virtutis (1st Præfat. ad Pandect). A line of Milton or Tasso would surprise us in an act of Parliament. Quae omnia obtimere sancimus in omne a-vum. Of the first Code, he says (2d Praefat.), in aetermum valiturum. Man and forever !
* Sovigny (vol. iii. pp 83, 80) examines and rejects the whole story. See likewise IIallam, vol. iii. p. 514.—M.
* Novellae is a classic adjective, but a barbarous substantive (Ludewig, p. 245). Justinian newer 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, pp. 249, 258. Aleman. Not. in Anecdot. p. 98). * Montesquieu, Considerations 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. * 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. * 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 aequitatis Institutiones Civilis, Juris compositas ediderunt (Institut. Divin. 1. i. c. 1). Such as Ulpian, Paul, Florentinus, Marcian. * 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 *otes to the edition of Schulting, in the Jurisprudentia Ante-Justinianea, Lugd. Bat. 1717. Heineccius, Hist. J. R. No. 313, Ludewig, in Vit. Just, p.199).