CHAP. the emperor. His paffive and dutiful fubmiffion XLIV. has been honoured with the praise of Juftinian The Code of Juftini an, A. D. 528, Fe April 7. himself, whofe vanity was incapable of difcerning how often that fubmiffion degenerated into the groffeft adulation. Tribonian adored the virtues of his gracious master: the earth was unworthy of fuch a prince; and he affected a pious fear, that Juftinian, like Elijah or Romulus, would be fnatched into the air, and translated alive to the manfions of cœleftial glory 74. If Cæfar had atchieved the reformation of the Roman law, his creative genius, enlightened by bruary 13; reflection and ftudy, would have given to the A. D. 529, world a pure and original system of jurifprudence. Whatever flattery might fuggeft, the emperor of the East was afraid to establish his private judgment as the standard of equity: in the poffeffion of legislative power, he borrowed the aid of time and opinion; and his laborious compilations are guarded by the fages and legiflators of paft times. Inftead of a ftatue caft in a fimple mould by the hand of an artift, the works of Juftinian reprefent a teffelated pavement of antique and coftly, but too often of incoherent fragments. In the first 74 This story is related by Hefychius (de Viris Illuftribus), Procopius (Anecdot. c. 13.), and Suidas (tom. iii. p. 501.). Such flattery is incredible! -Nihil eft quod credere de fe Non poteft, cum laudatur Diis æqua poteftas. Fontenelle (tom. i. p. 32—39 ) has ridiculed the impudence of the modeft Virgil. But the fame Fontenelle places his king above the divine Auguftus; and the fage Boileau has not blushed to say “ Le "deftin à fes yeux n'oferoit balancer." Yet neither Auguftus nor Louis XIV. were fools. XLIV. year of his reign, he directed the faithful Tribo- CHAP. nian, and nine learned affociates, to revise the ordinances of his predeceffors, as they were contained, fince the time of Hadrian, in the Gregorian, Hermogenian, and Theodofian codes; to purge the errors and contradictions, to retrench whatever was obfolete or fuperfluous, and to select the wife and falutary laws best adapted to the practice of the tribunals and the use of his fubjects. The work was accomplished in fourteen months; and the twelve books or tables, which the new decemvirs produced, might be defigned to imitate the labours of their Roman predeceffors. The new CODE of Juftinian was honoured with his name, and confirmed by his royal fignature: authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magiftrates of the European, the Afiatic, and afterwards the African provinces: and the law of the empire was proclaimed on folemn feftivals at the doors of churches. A more arduous operation was ftill be- The Panhind: to extract the fpirit of jurisprudence from the decifions and conjectures, the questions and dif. putes of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the emperor to exercise an abfolute jurifdiction over the works of their predeceffors. If they had obeyed his commands in ten years, Juftinian would have been satisfied with their diligence; and the rapid compofition of the DIGEST or PANDECTS "5, in 75 Пavdexra (general receivers) was a common title of the Greek mifcellanies (Plin. Præfat. ad Hift. Natur.). The Digefia of Scævola, Marcelinus, Celfus, were already familiar to the civilians: but Juf dects or Digeft, Dec 15; A.D. 533, Dec. 16. XLIV. CHAP. in three years, will deferve praise or cenfure, according to the merit of the execution. From the library of Tribonian, they chofe forty, the most eminent civilians of former times 76: two thoufand treatises were comprised in an abridgment of fifty books; and it has been carefully recorded, that three millions of lines or fentences ", were 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 feemed reafonable that the elements fhould precede the digeft of the Roman law. As foon as the emperor had approved their labours, he ratified, by his legiflative power, the fpeculations of thefe private citizens: their commentaries, on the twelve tables, the perpetual edict, the laws of the people, and the decrees of the senate, fucceeded to the authority of the text; and tinian was in the wrong when he ufed the two appellations as fynonymous. Is the word Pandes Greek or Latin-mafculine or feminine? The diligent Brenckman will not prefume to decide these momentous controverfies (Hift. Pande&t. Florentin. p. 300-304.). 76 Angelus Politianus (1. v. Epift. ult) reckons thirty-feven (p. 192-200.) civilians quoted in the Pandects-a learned, and, for his times, an extraordinary lift. 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 Auguftus (de Nominibus Propriis. Pandect. apud Ludewig, p. 283.) is faid to have added fifty-four names; but they must be vague or fecond-hand references. 77 The Sign of the ancient MSS. may be ftrictly defined as fentences or periods of a complete fenfe, which, on the breadth of the parchment rolls or volumes, compofed as many lines of unequal length. The number of six in each book ferved as a check on the errors of the feribes (Ludewig, p. 211-215. and his original author Suicer. Thefaur. Ecclefiaft. tom. i. p. 1c21-1036.). the XLIV. 39 the text was abandoned, as an useless, though ve- CHAP. nerable, relic of antiquity. The Code, the Pandects, and the Inftitutes, were declared to be the legitimate system of civil jurifprudence; they alone were admitted in the tribunals, and they alone were taught in the academies of Rome, Conftantinople, and Berytus. Justinian addressed to the fenate and provinces, his eternal oracles; and his pride, under the mask of piety, afcribed the confummation of this great defign to the fupport and infpiration of the Deity. Since the emperor declined the fame and envy of original compofition, we can only require at his hands, method, choice, and fidelity, the humble, though indifpenfable, virtues of a compiler. Among the various combinations of ideas, it is diffi cult to affign any reasonable preference; but as the order of Juftinian is different in his three works, it is poffible that all may be wrong; and it is certain that two cannot be right. In the felection of ancient laws, he seems to have viewed his predeceffors without jealoufy, and with equal regard: the series could not ascend above the reign of Hadrian, and the narrow diftinction of Paganism and Chrif tianity, introduced by the fuperftition of Theodofius, had been abolished by the consent of mankind. But the jurifprudence of the Pandects is circumfcribed within a period of an hundred years, from the perpetual edict to the death of Severus Alexander the civilians who lived under the first Cæfars, are feldom permitted to speak, and only three names can be attributed to the age of the republic. Praife and cenfure of the Code and Pan dects. XLIV. CHAP. The favourite of Juftinian (it has been fiercely urged) was fearful of encountering the light of freedom and the gravity of Roman fages. Tribonian condemned to oblivion the genuine and native wifdom 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 ftudy Latin as a foreign tongue, and jurisprudence as a lucrative profeffion. But the ministers of Juftinian 7 were inftructed to labour, not for the curiofity of antiquarians, but for the immediate benefit of his fubjects. 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 fuited to the new fyftem of manners, religion, and government. Perhaps, if the preceptors and friends of Cicero were ftill alive, our candour would acknowledge, that, except in purity of language", their intrinfic merit was excelled by the fchool of Papinian and Ulpian. The fcience of the laws is the flow growth of time and experience, and the advantage both of method and ma 78 An ingenious and learned oration of Shcultingius (Jurisprudentia Ante-Juftinianea, p. 883–907.) justifies the choice of Tribonian, against the passionate charges of Francis Hottoman and his fectaries. 79 Strip away the cruft of Tribonian, and allow for the ufe 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 faftidius 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 (Opufcula de Latinitate veterum Jurifconfultorum, Lugd. Bat. 1721, in 12m). terials, |