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CHAP. baser alloy. Six years had not elapfed from the

XLIV.

Second edition of

the Code,

A. D. 534,

Nov. 16.

publication of the Code, before he condemned the imperfect attempt, by a new and more accurate edition of the fame work; which he enriched with two hundred of his own laws, and fifty decifions of the darkest and most intricate points of jurifprudence. Every year, or, according to Procopius, each day, of his long reign, was marked by fome legal innovation. Many of his acts were refcinded by himself; many were rejected by his fucceffors, many have been obliterated by time; but the number of fixteen EDICTS, and one hundred and The No- fixty-eight NOVELS 4, has been admitted into the authentic body of the civil jurisprudence. In the 534-565. opinion of a philofopher fuperior to the prejudices of his profeffion, thefe inceffant, and for the most part trifling, alterations, can be only explained by the venal spirit of a prince, who fold without fhame his judgments and his laws "5. The charge of the secret historian is indeed explicit and vehement; but the fole instance, which he produces, may be ascribed to the devotion as well as to the avarice of Juftinian. A wealthy bigot had bequeathed his inheritance to the church of Emefa a; and its value was enhanced by the dexterity of an

vels,

A. D.

95

94 Novella is a claffic adjective, but a barbarous fubftantive (Ludewig, p. 245.) Juftinian never collected them himfelf: the nine collations, the legal ftandard of modern tribunals, confift of ninetyeight Novels; but the number was increafed by the diligence of Julian, Haloander, and Contius (Ludewig, p. 249. 258. Aleman. Not in Anecdot. p. 98.).

95 Montefquieu, Confiderations fur la Grandeur et la Decadence des Romains, c. 20. tom. iii. p 50r. in 4to. On this occafion he throws afide the gown and cap of a Prefident à Mortier.

artist,

XLIV.

artist, who fubfcribed confeffions of debt and pro- CHAP. mises of payment with the names of the richeft Sy. rians. They pleaded the established prescription of thirty or forty years; but their defence was overruled by a retrofpective edict, which extended the claims of the church to the term of a century; an edict fo pregnant with injuftice and disorder, that after ferving this occafional purpose, it was prudently abolished in the fame reign 9%. If candour will acquit the emperor himself, and transfer the corruption to his wife and favourites, the fufpicion of fo foul a vice muft ftill degrade the majefty of his laws; and the advocates of Juftinian may acknowledge, that such levity, whatsoever be the motive, is unworthy of a legislator and a man.

Monarchs feldom condefcend to become the preceptors of their subjects; and fome praise is due to Juftinian, by whofe command an ample fyftem was reduced to a fhort and elementary treatise. Among the various inftitutes of the Roman law 97, those of Caius 9 were the most popular in the Eaft and Weft; and their use may

96 Procopius, Anecdot. c. 28. A fimilar privilege was granted to the church of Rome (Novel. ix.). For the general repeal of these mischievous indulgencies, fee Novel. cxi. and Edict. v.

97 Lactantius, in his Inftitutes of Chriftianity, an elegant and fpecious work, proposes to imitate the title and method of the civilians. Quidam prudentes et arbitri æquitatis Inftitutiones Civilis Juris compofitas ediderunt (Inftitut. Divin. 1. i. c. 1.). Such as Ulpian, Paul, Florentinus, Marcian.

98 The emperor Juftinian calls him fuum, though he died before the end of the fecond century. His Inftitutes are quoted by Servius, Boethius, Prifcian, &c. and the Epitome by Arrian is ftill extant. (See the Prolegomena and Notes to the edition of Schulting, in the Jurifprudentia Ante-Juftinianea, Lugd. Bat. 1717. Heineccius, Hift. J. R. N° 313. Ludewig. in Vit. Juft. p. 199.).

be

The Infti

tutes,

A. D. 533,

Nov. 21.

XLIV.

CHAP. be confidered as an evidence of their merit. They were selected by the imperial delegates, Tribonian, Theophilus, and Dorotheus: and the freedom and purity of the Antonines was incrufted with the coarfer materials of a degenerate age. The fame volume which introduced the youth of Rome, Conftantinople, and Berytus, to the gradual study of the Code and Pandects, is ftill precious to the hiftorian, the philofopher, and the magistrate. The INSTITUTES of Juftinian are divided into four books; they proceed, with no contemptible method, from, I. Perfons, to II. Things, and from things, to, III. Actions; and the article IV, of Private Wrongs, is terminated by the principles of Criminal Law.

-I. OF

PERSONS.

I. The diftinction of ranks and persons, is the firmeft bafis of a mixed and limited government. and laves. In France, the remains of liberty are kept alive by

Freemen

99

the fpirit, the honours, and even the prejudices of fifty thousand nobles ". Two hundred families fupply, in lineal defcent, the fecond branch of the English legiflature, which maintains, between the king and commons, the balance of the conftitution. A gradation of patricians and plebeians, of ftrangers and fubjects, has fupported the aristocracy of Genoa, Venice, and ancient Rome. The perfect equality of men is the point in which the ex

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 poffeffion of arms and fiefs. Since the Crusades, fome, the most truly refpectable, have been created by the king, for merit and fervices. The recent and vulgar crowd is derived from the multitude of venal offices without trust or dignity, which continually ennoble the wealthy plebeians.

tremes

XLIV.

tremes of democracy and defpotifm are con- CHAP. founded; fince the majefty of the prince or people would be offended, if any heads were exalted above the level of their fellow-flaves or fellowcitizens. In the decline of the Roman empire, the proud diftinctions of the republic were gradually abolished, and the reafon or instinct of Justinian completed the fimple form of an abfolute monarchy. The emperor could not eradicate the popular reverence which always waits on the poffeffion of hereditary wealth or the memory of famous ancestors. He delighted to honour with titles and emoluments, his generals, magiftrates, and fenators; and his precarious indulgence communicated fome rays of their glory to the perfons of their wives and children. But in the eye of the law, all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That ineftimable character was degraded to an obfolete and empty name. The voice of a Roman could no longer enact his laws, or create the annual minifters of his power: his conftitutional rights might have checked the arbitrary will of a mafter; and the bold adventurer from Germany or Arabia was admitted, with equal favour, to the civil and military command, which the citizen alone had been once entitled to affume over the conquefts of his fathers. The first Cæfars had fcrupulously guarded the distinction of ingenuous, and fervile birth, which was decided by the condition of the mother; and the candour of the laws was fatisfied, if her freedom could be ascertained during a fingle moment between the conception and the delivery. VOL. VIII.

E

The

XLIV.

CHAP. The flaves, 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 refpected the rights of patrons; but his indulgence removed the badge of difgrace from the two inferior orders of freedmen whoever ceased to be a flave, obtained, without referve or delay, the station of a citizen; and at length the dignity of an ingenuous birth, which nature had refused, was created, or fuppofed, by the omnipotence of the emperor. Whatever restraints of age, or forms, or numbers, had been formerly introduced to check the abuse of manumiffions, and the too rapid increase of vile and indigent Romans, he finally abolished; and the spirit of his laws promoted the extinction of domeftic fervitude. Yet the eastern provinces were filled, in the time of Juftinian, with multitudes of flaves, either born or purchased for the ufe of their mafters; and the price, from ten to feventy pieces of gold, was determined by their age, their strength, and their education co But the hardships of this dependent

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100 If the option of a flave was bequeathed to feveral legatees, they drew lots, and the lofers were entitled to their share of his value: ten pieces of gold for a common fervant or maid under ten years; if above that age, twenty; if they knew a trade, thirty; notaries or writers, fifty; midwives or physicians, fixty; eunuchs under ten years, thirty pieces; above, fifty; if tradefmen, seventy (Cod. 1, vi. tit.xliii. leg.3). Thefe legal prices are generally below those of the

market.

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