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terials, is naturally assumed by the most recent authors. The civilians of the reign of the Anonines had studied the works of their predecessors: their philosophic spirit had mitigated the rigour of antiquity, simplified the forms of proceeding, and emerged from the jealousy and prejudice of the

rival se&ts. The choice of the authorities that `

compose the Pandects, depended on the judgment of Tribonian: but the power of his sovereign could

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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 despotism; 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 contradićtions

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and subtlety of modern civilians”.
A rumour devoid of evidence has been propa-
gated by the enemies of Justinian; that the juris.
prudence of ancient Rome was reduced to ashes by
the author of the Pande&ts, from the vain persua-
fion, 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 destrućtive wish.
Before the invention of printing and paper, the
labour and the materials of writing could be pur-
chased only by the rich ; and it may reasonably be
computed, that the price of books was an hundred
fold their present value”. Copies were slowly
multiplied and cautiously renewed: the hopes of
profit tempted the sacrilegious scribes to eraze the
chara&ers of antiquity, and Sophocles or Tacitus
were obliged to resign the parchment to missals,
homilies, and the golden legend”. If such was

82. The antinomier, or opposite laws of the Code and Pande&ts, are fonetimes 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 fine passage of Franciscus Balduinus in Justinian (l. ii. p. 259, &c. apud Ludewig, p. 305, 306.).

83 When Fust, or Faustus, sold at Paris his first printed bibles as manuscripts, 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 cheapness, and at length provoked by the discovery of the fraud (Mattaire, Annal. Typograph. tom. i. p. 12.; first edition).

84 This execrable pračtice prevailed from the viiith, and more especially from the xiith, century, when it became almost universa; (Moutfaucon, in the Memoirs de l'Academie, tom. vi. p. 6c6, &c. Bibliothèque Raisonnée de la Diplomatique, tom. i. p. 176.). h

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8s Pomponius (Pande&t. 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, haec versantur eorum scripta inter manus hominum. Fight of the Augustan sages were reduced to a compendium ; of Cascellius, scripta non extant fed unus liber, &c.; of ‘I rebatius, minus frequentantur; of Tubero, libri parum grati sunt. Many quotations in the Pandeśts are derived from books

which Tribonian never saw; and, in the long period from the viith

fo the xiiith century of Rome, the apparent reading of the moderns successively depends on the knowledge and veracity of their predecessors,

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86 All, in several instances, repeat the errors of the scribe and the transpositions of some leaves in the Florentine Pande&ts. This fact, if it be true, is decisive. Yet the Pande&ts are quoted by Ivo of Chartres (who died in 1117), by Theobald, archbishop of Canterbury, and by Vacarius, our first profesior, in the year 1140 (Selden ad Fletam, c. 7. tom. ii. p. 1 o?o-1 oš5.). Have our British MSS. of the Pande&ts been collated 2

87 See the description of this original in Brenckman (Hist. Pande&t. Florent. l. i. c. 2, 3. p. 4-17. and l. ii.). Politian, an enthufiast, revered it as the authentic standard of Justinian himself (p. 407, 408.); but this paradox is refuted by the abbreviations of the

Florentine MS. (l. ii. c. 3. p. 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 Pisan war in the year 1135, &c.

89 The discovery of the Pande&ts at Amalphi (A. D. 1137) is first noticed (in 1501) by Ludovicus Bologninus (Brenckman, l. i. c. 11. p. 73, 74. l. iv. c. 2, p. 417–425.), on the faith of a Pisan chroiiicle (p. 439, 410.), without a name or a date. The whole story, though unknown to the xiit" century, embellished by ignorant ages, and suspected by rigid criticism, is not, however, destitute of much internal probability (l. i. c. 4–8, p. 17—so.). The Liber Pande&arum of Pisa was undoubtedly consulted in the xivth cen, tury by the great Bartolus (p. 496, 407. See l. i. c. 9, p. 50–62.).

98 Pisa was taken by the Florentines in the year 1406; and in 1411 the Pandects were transported to the capital. These events arc auth&ntic and famous.

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91 They were new bound in purple, deposited in a rich casket, and shewn to curious travellers by the monks and magistrates bareheaded, and with lighted tapers (Brenckman, l. i. c. 1 o, 11, 12, p. 62-93.).

9. After the collations of Politian, Bologninus, and Antoninus Augustinus, and the splendid edition of the Pande&ts by Taurellus (in 1551), Henry Brenckman, a Dutchman, undertook a pilgrimage to Florence, where he employed several years in the sludy of a single manuscript. His Historia Pande&tarum Florentinorum (Utrecht, 1722, in 4°), though a monument of industry, is a small portion of his original design.

93 xpwata xansior, Exarcago; sweg.owy, apud Homerum patrem omnis virtutis (1st Præfat. ad Pande&t.). A line of Milton or Taíso would surprise us in an act of parliament. Quæ omnia obtinere fancimus in omne a-vum. Of the first Code, he says (24 Præfat.) in aeternum valiturum. Man and for ever !

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C H A P.
XLIV.

\ - Legal inconstancy

of Justinian.

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