XLIV. by the various colours of their temper and prin- CHAP. ciples. Labeo was attached to the form of the old republic; his rival embraced the more profitable substance of the rifing monarchy. But the difpofition of a courtier is tame and fubmiffive; and Capito feldom prefumed to deviate from the fentiments, or at least from the words, of his predeceffors; while the bold republican purfued his independent ideas without fear of paradox or innovations. The freedom of Labeo was enflaved, however, by the rigour of his own conclufions, and he decided according to the letter of the law, the fame questions which his indulgent competitor refolved with a latitude of equity more fuitable to the common fenfe and feelings of mankind. If a fair exchange had been substituted to the payment of money, Capito ftill confidered the tranfaction as. a legal fale; and he confulted nature for the age of puberty, without confining his definition to the precife period of twelve or fourteen years "5. This oppofition of fentiments was propagated in the 65 64 Juftinian (Inftitut. 1. iii. tit xxiii. and Theophil. Verf. Græc. p.677, 680.) has commemorated this weighty dispute, and the verses of Homer that were alledged on either fide as legal authorities. It was decided by Paul (leg. 33. ad Edict. in Pandet. 1. xviii. tit. 1. leg. r.), fince, in a fimple exchange, the buyer could not be dif criminated from the feller. 65 This controverfy was likewife given for the Proculians, to fuperfede the indecency of a fearch, and to comply with the aphorifm of Hypocrates, who was attached to the feptenary number of two weeks. of years, or 7c0 of days (Inftitut. 1. i. tit. xxi.). Plutarch and the ftoics (de Placit. Fhilofoph.l. v. c. 24.).affign a more natural reason. Fourteen years is the age-περι ἦν ὁ σπερματικός κρίνεται οῤῥος . See the eligia of the fects in Mafcou, c. ix. p. 145-276. writings XLIV. 66 CHAP. writings and leffons of the two founders ; the schools of Capito and Labeo maintained their inveterate conflict from the age of Auguftus to that of Hadrian ""; and the two fects derived their ap. pellations from Sabinus and Proculius, their moft celebrated teachers. The names of Caffians and Pegafians were likewise applied to the fame parties; but, by a strange reverse, the popular cause was in the hands of Pegasus 7, a timid flave of Domitian, while the favourite of the Cæfars was represented by Caffius", who gloried in his defcent from the patriot affaffin. By the perpetual edict, the controversies of the fects were in a great measure determined. For that important work, the emperor Hadrian preferred the chief of the Sabinians: the friends of monarchy prevailed; but the moderation of Salvius Julian infenfibly reconciled the victors and the vanquished. Like the contemporary philofophers, the lawyers of the age of the Antonines difclaimed the authority of a mafter, and adopted from every fyftem the most probable doctrines 69. But their writings would have been lefs 66 The feries and conclufion of the sects are described by Mascou (c. ii-vii. p. 24-120.), and it would be almost ridiculous to praise his equal juftice to thefe obfolete fects. 67 At the first fummons he flies to the turbot council; yet Juvenal (Satir. iv. 75-81.) ftyles the præfect or bailiff of Rome fanctiffimus legum interpres. From his fcience, fays the old fcholiaft, he was called, not a man, but a book. He derived the fingular name of Pegafus from the galley which his father commanded. 68 Tacit. Annal. xvii. 7. Sueton. in Nerone, c. 37. 69 Mafcon, de Sectis, c. viii. p. 120-144. de Herifcundis, alegal term which was applied to thefe eclectic lawyers: hercifcere is fynonymous to dividere. 3 volumincus, mous. the XLIV. voluminous, had their choice been more unani- CHAP. The conscience of the judge was perplexed by the number and weight of difcordant teftimonies, and every fentence that his paffion or intereft might pronounce, was juftified by the fanction of fome venerable name. An indulgent edict of younger Theodofius excufed him from the labour of comparing and weighing their arguments. Five civilians, Caius, Papinian, Paul, Ulpian, and Modeftinus, were established as the oracles of jurifprudence: a majority was decifive; but if their opinions were equally divided, a casting vote was ascribed to the fuperior wifdom of Papinian 7. tion of the Roman law by Juftinian, &c. When Juftinian afcended the throne, the reform- Reformaation of the Roman jurisprudence was an arduous but indifpenfable task. In the space of ten centuries, the infinite variety of laws and legal opinions had filled many thoufand volumes, which no fortune could purchase and no capacity could digeft. Books could not eafily be found; and the judges, poor in the midft of riches, were reduced to the exercise of their illiterate difcretion. The fubjects of the Greek provinces were ignorant of the language that difpofed of their lives and properties; and the barbarous dialect of the Latins was imperfectly studied in the academies of Berytus and Conftantinople. As an Illyrian foldier, that idiom was 70 See the Theodofian Code, 1. i. tit. iv. with Godefroy's Commentary, tom. i. p. 3c-35. This decree might give occasion to Jefuitical disputes like thofe in the Lettres Provinciales, whether a judge was obliged to follow the opinion of Papinian or of a majority, against his judgment, against his confcience, &c. Yet a legiflator might give that opinion, however false, the validity not of truth, but of law. VOL. VIII. D familiar XLIV. CHAP. familiar to the infancy of Juftinian; his youth had been instructed by the leffons of jurisprudence, and his Imperial choice felected the most learned civilians of the Eaft, to labour with their fovereign in the work of reformation". The theory of profeffors was affifted by the practice of advocates and the experience of magiftrates; and the whole undertaking was animated by the spirit of Tribonian". This extraordinary man, the object of fo much praise and cenfure, was a native of Side in 527-546. Pamphylia; and his genius, like that of Bacon, embraced, as his own, all the business and knowledge of the age. Tribonian compofed, both in profe and verse, on a ftrange diverfity of curious and abftrufe fubjects": a double panegyric of Juftinian and the life of the philosopher Theodotus; the nature of happiness and the duties of government; Homer's catalogue and the four and twenty forts of metre; the aftronomical canon of Tribonian, A. D. 71 For the legal labours of Juftinian, I have ftudied the Preface to the Institutes; the 1st, 2a, and 3d Frefaces to the Fandects; the 1st and 24 Preface to the Code; and the Code itself (1. i. tit. xvii. de Veteri Jure enucleando). After these original testimonies, I have confulted, among the mo lerns, Heineccius (Hift. J. R. No 383— 404.), Teraffon (Hift. de la Jurifprudence Romaine, p. 295-356.), Gravina (Opp. p. 93–100.), and Ludewig, in his life of Juftinian (p. 19–123. 318-321: for the Code and Novels, p. 209-261.; for the Digeft or Pandects, p. 262—317.). 72 For the character of Tribonian, fee the teftimonies of Procopius (Perfic 1. i. c. 23, 24, Anecdot. c. 13. 20.) and Suídas (tom. iii. p. 501. edit. Kufter). Ludewig (in Vit. Juftinian. p. 175—209.) works hard, very hard, to white-wafh-the black-a-moor. 73 I apply the two paffages of Suidas to the same man; every circumftance fo 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. 345. 353.474.). XLIV. Ptolemy; the changes of the months; the houses CHAP. of the planets; and the harmonic system of the world. To the literature of Greece he added the ufe of the Latin tongue; the Roman civilians were depofited in his library and in his mind; and he moft affiduously cultivated thofe arts which opened the road of wealth and preferment. From the bar of the prætorian præfects, he raised himself to the honours of quæftor, of conful, and of master of the offices the council of Juftinian liftened 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 bigotted and perfecuting court, the principal minifter was accused of a fecret averfion to the Chriftian faith, and was supposed to entertain the fentiments of an Atheist and a Pagan, which have been imputed, inconfiftently enough, to the last philofophers of Greece. His avarice was more clearly proved and more fenfibly 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 fanctity of his profeffion; and if laws were every day enacted, modified, or repealed, for the base consideration of his private emolument. In the fedition of Conftantinople, his removal was granted to the clamours, perhaps to the juft indignation, of the people: but the quæftor was speedily reftored, and till the hour of his death, he poffeffed, above twenty years, the favour and confidence of |