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and entertaining to none: their value was connected with present use, and they sunk forever as soon as that use was superseded by the innovations of fashion, superior merit, or public authority.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.85 The copies of Papinian, or Ulpian, which the reformer had proscribed, were deemed unworthy of future notice; the Twelve Tables and prætorian 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,88

87

the xiith, century, when it became almost universal (Montfaucon, in the Mémoires de l'Académie, tom. vi. p. 606, &c. Bibliothèque Raisonnée de la Diplomatique, tom. i. p. 176).

85 Pomponius (Pandect. 1. 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, hæc 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 Rome, the apparent reading of the moderns successively depends on the knowledge and veracity of their predecessors.

86 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?

87 See the description of this original in Brenckman (Hist. Pandect. Florent. 1 i. c. 2, 3, pp. 4-17, and 1. 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. (1. 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.

88 Brenckman, at the end of his history, has inserted two dissertations on the republic of Amalphi, and the Pian war in the year 1135, &c.

Pisa,89 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 treedom 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

93

89 The discovery of the Pandects at Amalphi (A. D. 1137) is first noticed (in 1501) by Ludovicus Bologninus (Brenckman, 1. i. c. 11, pp. 73, 74, 1. 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 igno rant ages, and suspected by rigid criticism, is not, however, destitute of much internal probability (1. 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 1. i. c. 9, pp. 50-62).

90 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 and magistrates bareheaded, and with lighted tapers (Brenckman, 1. i. c. 10, 11, 12, pp. 62-93).

92 After the collations of Politian, Bologninus, and Antoninus Augustinus, and the splendid edition of the Pandects by Taurellus (in 1551), Henry Brenckman, a Dutchman, undertook a pilgrimage to Florence, where he employed several years in the study of a single manuscript. His Historia Pandectarum Floren. tinorum (Utrecht, 1722. in 4to.), though a monument of industry, is a small portion of his original design.

93 Χρύσεα χαλκείων, εκατόμβοι' 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 forever!

* Savigny (vol. iii. pp 83, 89) examines and rejects the whole story. See likewise Ilallam, vol. iii. p. 514.-M.

by time; but the number of sixteen EDICTS, and one hun. dred and sixty-eight NOVELS,94 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.95 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 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." 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.

96

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,97 those of Caius were the most popular in the East and West; and their use may be considered as

98

94 Novella 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, pp. 249, 258. Aleman. Not. in Anecdot. p. 98).

95 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.

96 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, exi. and Edict. v.

97 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.

98 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. J. R. No. 313. Ludewig, in Vit. Just. p. 199).

an evidence of their merit. They were selected by the Im perial 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 ter. minated by the principles of Criminal Law.*

The distinction of ranks and persons is the firmest basis of a mixed and limited government. In France, the remains of liberty are kept alive by the spirit, the honors, and even the prejudices, of fifty thousand nobles.99 Two hundred families † supply, in lineal descent, the second branch of 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 aristocracy 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 fellowslaves 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 honor, 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

99 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.

* Gibbon, dividing the Institutes into four parts, considers the appendix of the criminal law in the last title as a fourth part.-W.

Since the time of Gibbon, the House of Peers has been more than doubled; it is above 400, exclusive of the spiritual peers-a wise policy, to increase the patrician order in proportion to the general increase of the nation.-M.

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 favor, 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 candor of the laws was satisfied, if her freedom could be ascertained, during a single moment, be tween 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: 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.100 But the hardships of this dependent state were continually diminished by the influence of government and religion; and the pride of a sub

100 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 the y 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.