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, 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

cal 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.*

with extracts from the three codes, and from 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 quæstor and præfectus, was president. A second commission of sixteen members was issued in 435 under the same president.

3. A code, which we possess under the name of Codex Theodosianus, was finished in 438, published in the East, in an ordinance addressed to the Prætorian præfect, Florentinus, and intended to be published in the West.

4. Before it was published in the West, Valentinian submitted it to the senate. 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 Theodosiani 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 at Milan:

1. Imper. Constantinus Aug. ad Maximium Præf. Prætorio.

Perpetuas prudentum contentiones eruere cupientes, Ulpiani ac Pauli, in Papinianum notas, qui dum ingenii laudem sectantur, non tam corrigere eum quam depravere maluerunt, aboleri præcepimus. Dat. III. Kalend. Octob. et Const. Cons. et Crispi, (321.)

Idem Aug. ad Maximium Præf. Præt.

Universa, quæ scriptura Pauli continentur, recepta auctoritate firmanda sunt, et omni veneratione celebranda. Ideoque sententiarum libros plenissima luce et perfectissimâ elocutione et justissimâ juris ratione succinc tos in judiciis prolatos valere minimè dubitatur. Dat. V. Kalend. Oct. Trevir. Const. et Max. Coss. (327.) — W.

the work of reformation.71 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.72 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: 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 honors of quæstor, 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 philoso

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, (1. 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. 1. i. c. 23, 24. Anecdot. c. 13, 20,) and Suidas, (tom. iii. p. 601, edit. Kuster.) Ludewig (in Vit. Justinian, p. 175-209) works hard, very hard, to whitewash - the blackamoor.

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, ii. p. 518, iii. p. 418, xii. p. 346, 353, 474.)

phers of Greece.

His avarice was more clearly proved and more sensibly felt. If he were swayed by gifts in the admin istration 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 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

74 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. 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 noz

Louis XIV were fools.

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 accoinplished 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 commands 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 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 were comprised in an abridgment of fifty books; and it has been carefully recorded.

75 TavdexTa (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. Florentine. p. 200-304.)* 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 extraordinary list. The Greek index to the Pandects enumerates thirty-nine, 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.

• The word Пávdekrat was formerly in common use. See the preface to Aulus Gellius. — W.

,77 were reduced, in

that three millions of lines or sentences, 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 declined the fame and envy of original emperor 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

77 The Erixol 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 Erixol 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. i. p. 1021-1036.)