Volume 4 Part 6 (1/2)

The Decemvirs had been named, and their tables were approved, by an a.s.sembly of the _centuries_, in which riches preponderated against numbers. To the first cla.s.s of Romans, the proprietors of one hundred thousand pounds of copper, ninety-eight votes were a.s.signed, and only ninety-five were left for the six inferior cla.s.ses, distributed according to their substance by the artful policy of Servius. But the tribunes soon established a more specious and popular maxim, that every citizen has an equal right to enact the laws which he is bound to obey. Instead of the _centuries_, they convened the _tribes_; and the patricians, after an impotent struggle, submitted to the decrees of an a.s.sembly, in which their votes were confounded with those of the meanest plebeians. Yet as long as the tribes successively pa.s.sed over narrow _bridges_ and gave their voices aloud, the conduct of each citizen was exposed to the eyes and ears of his friends and countrymen. The insolvent debtor consulted the wishes of his creditor; the client would have blushed to oppose the views of his patron; the general was followed by his veterans, and the aspect of a grave magistrate was a living lesson to the mult.i.tude. A new method of secret ballot abolished the influence of fear and shame, of honor and interest, and the abuse of freedom accelerated the progress of anarchy and despotism. The Romans had aspired to be equal; they were levelled by the equality of servitude; and the dictates of Augustus were patiently ratified by the formal consent of the tribes or centuries. Once, and once only, he experienced a sincere and strenuous opposition. His subjects had resigned all political liberty; they defended the freedom of domestic life. A law which enforced the obligation, and strengthened the bonds of marriage, was clamorously rejected; Propertius, in the arms of Delia, applauded the victory of licentious love; and the project of reform was suspended till a new and more tractable generation had arisen in the world. Such an example was not necessary to instruct a prudent usurper of the mischief of popular a.s.semblies; and their abolition, which Augustus had silently prepared, was accomplished without resistance, and almost without notice, on the accession of his successor. Sixty thousand plebeian legislators, whom numbers made formidable, and poverty secure, were supplanted by six hundred senators, who held their honors, their fortunes, and their lives, by the clemency of the emperor. The loss of executive power was alleviated by the gift of legislative authority; and Ulpian might a.s.sert, after the practice of two hundred years, that the decrees of the senate obtained the force and validity of laws. In the times of freedom, the resolves of the people had often been dictated by the pa.s.sion or error of the moment: the Cornelian, Pompeian, and Julian laws were adapted by a single hand to the prevailing disorders; but the senate, under the reign of the Caesars, was composed of magistrates and lawyers, and in questions of private jurisprudence, the integrity of their judgment was seldom perverted by fear or interest.

The silence or ambiguity of the laws was supplied by the occasional edicts of those magistrates who were invested with the _honors_ of the state. This ancient prerogative of the Roman kings was transferred, in their respective offices, to the consuls and dictators, the censors and praetors; and a similar right was a.s.sumed by the tribunes of the people, the ediles, and the proconsuls. At Rome, and in the provinces, the duties of the subject, and the intentions of the governor, were proclaimed; and the civil jurisprudence was reformed by the annual edicts of the supreme judge, the praetor of the city. As soon as he ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the decision of doubtful cases, and the relief which his equity would afford from the precise rigor of ancient statutes. A principle of discretion more congenial to monarchy was introduced into the republic: the art of respecting the name, and eluding the efficacy, of the laws, was improved by successive praetors; subtleties and fictions were invented to defeat the plainest meaning of the Decemvirs, and where the end was salutary, the means were frequently absurd. The secret or probable wish of the dead was suffered to prevail over the order of succession and the forms of testaments; and the claimant, who was excluded from the character of heir, accepted with equal pleasure from an indulgent praetor the possession of the goods of his late kinsman or benefactor. In the redress of private wrongs, compensations and fines were subst.i.tuted to the obsolete rigor of the Twelve Tables; time and s.p.a.ce were annihilated by fanciful suppositions; and the plea of youth, or fraud, or violence, annulled the obligation, or excused the performance, of an inconvenient contract. A jurisdiction thus vague and arbitrary was exposed to the most dangerous abuse: the substance, as well as the form, of justice were often sacrificed to the prejudices of virtue, the bias of laudable affection, and the grosser seductions of interest or resentment. But the errors or vices of each praetor expired with his annual office; such maxims alone as had been approved by reason and practice were copied by succeeding judges; the rule of proceeding was defined by the solution of new cases; and the temptations of injustice were removed by the Cornelian law, which compelled the praetor of the year to adhere to the spirit and letter of his first proclamation. It was reserved for the curiosity and learning of Adrian, to accomplish the design which had been conceived by the genius of Caesar; and the praetors.h.i.+p of Salvius Julian, an eminent lawyer, was immortalized by the composition of the Perpetual Edict. This well-digested code was ratified by the emperor and the senate; the long divorce of law and equity was at length reconciled; and, instead of the Twelve Tables, the perpetual edict was fixed as the invariable standard of civil jurisprudence.

From Augustus to Trajan, the modest Caesars were content to promulgate their edicts in the various characters of a Roman magistrate; and, in the decrees of the senate, the _epistles_ and _orations_ of the prince were respectfully inserted. Adrian appears to have been the first who a.s.sumed, without disguise, the plenitude of legislative power. And this innovation, so agreeable to his active mind, was countenanced by the patience of the times, and his long absence from the seat of government.

The same policy was embraced by succeeding monarchs, and, according to the harsh metaphor of Tertullian, ”the gloomy and intricate forest of ancient laws was cleared away by the axe of royal mandates and _const.i.tutions_.” During four centuries, from Adrian to Justinian the public and private jurisprudence was moulded by the will of the sovereign; and few inst.i.tutions, either human or divine, were permitted to stand on their former basis. The origin of Imperial legislation was concealed by the darkness of ages and the terrors of armed despotism; and a double fiction was propagated by the servility, or perhaps the ignorance, of the civilians, who basked in the suns.h.i.+ne of the Roman and Byzantine courts. 1. To the prayer of the ancient Caesars, the people or the senate had sometimes granted a personal exemption from the obligation and penalty of particular statutes; and each indulgence was an act of jurisdiction exercised by the republic over the first of her citizens. His humble privilege was at length transformed into the prerogative of a tyrant; and the Latin expression of ”released from the laws” was supposed to exalt the emperor above _all_ human restraints, and to leave his conscience and reason as the sacred measure of his conduct. 2. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the t.i.tles and powers of an elective magistrate. But it was not before the ideas, and even the language, of the Romans had been corrupted, that a _royal_ law, and an irrevocable gift of the people, were created by the fancy of Ulpian, or more probably of Tribonian himself; and the origin of Imperial power, though false in fact, and slavish in its consequence, was supported on a principle of freedom and justice. ”The pleasure of the emperor has the vigor and effect of law, since the Roman people, by the royal law, have transferred to their prince the full extent of their own power and sovereignty.” The will of a single man, of a child perhaps, was allowed to prevail over the wisdom of ages and the inclinations of millions; and the degenerate Greeks were proud to declare, that in his hands alone the arbitrary exercise of legislation could be safely deposited. ”What interest or pa.s.sion,” exclaims Theophilus in the court of Justinian, ”can reach the calm and sublime elevation of the monarch? He is already master of the lives and fortunes of his subjects; and those who have incurred his displeasure are already numbered with the dead.” Disdaining the language of flattery, the historian may confess, that in questions of private jurisprudence, the absolute sovereign of a great empire can seldom be influenced by any personal considerations. Virtue, or even reason, will suggest to his impartial mind, that he is the guardian of peace and equity, and that the interest of society is inseparably connected with his own. Under the weakest and most vicious reign, the seat of justice was filled by the wisdom and integrity of Papinian and Ulpian; and the purest materials of the Code and Pandects are inscribed with the names of Caracalla and his ministers. The tyrant of Rome was sometimes the benefactor of the provinces. A dagger terminated the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate. Yet in the _rescripts_, replies to the consultations of the magistrates, the wisest of princes might be deceived by a partial exposition of the case. And this abuse, which placed their hasty decisions on the same level with mature and deliberate acts of legislation, was ineffectually condemned by the sense and example of Trajan. The _rescripts_ of the emperor, his _grants_ and _decrees_, his _edicts_ and _pragmatic sanctions_, were subscribed in purple ink, and transmitted to the provinces as general or special laws, which the magistrates were bound to execute, and the people to obey. But as their number continually multiplied, the rule of obedience became each day more doubtful and obscure, till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes.

* The two first, of which some fragments have escaped, were framed by two private lawyers, to preserve the const.i.tutions of the Pagan emperors from Adrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained an equal authority in the tribunals; and any act which was not included in the sacred deposit might be disregarded by the judge as spurious or obsolete.

Chapter XLIV: Idea Of The Roman Jurisprudence.--Part III.

Among savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the _forms_ of proceeding was sufficient to annul the _substance_ of the fairest claim. The communion of the marriage-life was denoted by the necessary elements of fire and water; and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clinched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence.

The indenture of covenants was a broken straw; weights and scales were introduced into every payment, and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap or dance with real or affected transport. If a citizen pursued any stolen goods into a neighbor's house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should encounter the eyes of a virgin or a matron. In a civil action the plaintiff touched the ear of his witness, seized his reluctant adversary by the neck, and implored, in solemn lamentation, the aid of his fellow-citizens. The two compet.i.tors grasped each other's hand as if they stood prepared for combat before the tribunal of the praetor; he commanded them to produce the object of the dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended. This occult science of the words and actions of law was the inheritance of the pontiffs and patricians. Like the Chaldean astrologers, they announced to their clients the days of business and repose; these important trifles were interwoven with the religion of Numa; and after the publication of the Twelve Tables, the Roman people was still enslaved by the ignorance of judicial proceedings. The treachery of some plebeian officers at length revealed the profitable mystery: in a more enlightened age, the legal actions were derided and observed; and the same antiquity which sanctified the practice, obliterated the use and meaning of this primitive language.

A more liberal art was cultivated, however, by the sage of Rome, who, in a stricter sense, may be considered as the authors of the civil law. The alteration of the idiom and manners of the Romans rendered the style of the Twelve Tables less familiar to each rising generation, and the doubtful pa.s.sages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circ.u.mscribe the lat.i.tude, to apply the principles, to extend the consequences, to reconcile the real or apparent contradictions, was a much n.o.bler and more important task; and the province of legislation was silently invaded by the expounders of ancient statutes. Their subtle interpretations concurred with the equity of the praetor, to reform the tyranny of the darker ages: however strange or intricate the means, it was the aim of artificial jurisprudence to restore the simple dictates of nature and reason, and the skill of private citizens was usefully employed to undermine the public inst.i.tutions of their country. The revolution of almost one thousand years, from the Twelve Tables to the reign of Justinian, may be divided into three periods, almost equal in duration, and distinguished from each other by the mode of instruction and the character of the civilians. Pride and ignorance contributed, during the first period, to confine within narrow limits the science of the Roman law. On the public days of market or a.s.sembly, the masters of the art were seen walking in the forum ready to impart the needful advice to the meanest of their fellow-citizens, from whose votes, on a future occasion, they might solicit a grateful return. As their years and honors increased, they seated themselves at home on a chair or throne, to expect with patient gravity the visits of their clients, who at the dawn of day, from the town and country, began to thunder at their door. The duties of social life, and the incidents of judicial proceeding, were the ordinary subject of these consultations, and the verbal or written opinion of the _juris-consults_ was framed according to the rules of prudence and law.

The youths of their own order and family were permitted to listen; their children enjoyed the benefit of more private lessons, and the Mucian race was long renowned for the hereditary knowledge of the civil law.

The second period, the learned and splendid age of jurisprudence, may be extended from the birth of Cicero to the reign of Severus Alexander.

A system was formed, schools were inst.i.tuted, books were composed, and both the living and the dead became subservient to the instruction of the student. The _tripart.i.te_ of aelius Paetus, surnamed Catus, or the Cunning, was preserved as the oldest work of Jurisprudence. Cato the censor derived some additional fame from his legal studies, and those of his son: the kindred appellation of Mucius Scaevola was ill.u.s.trated by three sages of the law; but the perfection of the science was ascribed to Servius Sulpicius, their disciple, and the friend of Tully; and the long succession, which shone with equal l.u.s.tre under the republic and under the Caesars, is finally closed by the respectable characters of Papinian, of Paul, and of Ulpian. Their names, and the various t.i.tles of their productions, have been minutely preserved, and the example of Labeo may suggest some idea of their diligence and fecundity. That eminent lawyer of the Augustan age divided the year between the city and country, between business and composition; and four hundred books are enumerated as the fruit of his retirement. Of the collection of his rival Capito, the two hundred and fifty-ninth book is expressly quoted; and few teachers could deliver their opinions in less than a century of volumes. In the third period, between the reigns of Alexander and Justinian, the oracles of jurisprudence were almost mute. The measure of curiosity had been filled: the throne was occupied by tyrants and Barbarians, the active spirits were diverted by religious disputes, and the professors of Rome, Constantinople, and Berytus, were humbly content to repeat the lessons of their more enlightened predecessors. From the slow advances and rapid decay of these legal studies, it may be inferred, that they require a state of peace and refinement. From the mult.i.tude of voluminous civilians who fill the intermediate s.p.a.ce, it is evident that such studies may be pursued, and such works may be performed, with a common share of judgment, experience, and industry.

The genius of Cicero and Virgil was more sensibly felt, as each revolving age had been found incapable of producing a similar or a second: but the most eminent teachers of the law were a.s.sured of leaving disciples equal or superior to themselves in merit and reputation.

The jurisprudence which had been grossly adapted to the wants of the first Romans, was polished and improved in the seventh century of the city, by the alliance of Grecian philosophy. The Scaevolas had been taught by use and experience; but Servius Sulpicius was the first civilian who established his art on a certain and general theory. For the discernment of truth and falsehood he applied, as an infallible rule, the logic of Aristotle and the stoics, reduced particular cases to general principles, and diffused over the shapeless ma.s.s the light of order and eloquence. Cicero, his contemporary and friend, declined the reputation of a professed lawyer; but the jurisprudence of his country was adorned by his incomparable genius, which converts into gold every object that it touches. After the example of Plato, he composed a republic; and, for the use of his republic, a treatise of laws; in which he labors to deduce from a celestial origin the wisdom and justice of the Roman const.i.tution. The whole universe, according to his sublime hypothesis, forms one immense commonwealth: G.o.ds and men, who partic.i.p.ate of the same essence, are members of the same community; reason prescribes the law of nature and nations; and all positive inst.i.tutions, however modified by accident or custom, are drawn from the rule of right, which the Deity has inscribed on every virtuous mind.

From these philosophical mysteries, he mildly excludes the sceptics who refuse to believe, and the epicureans who are unwilling to act. The latter disdain the care of the republic: he advises them to slumber in their shady gardens. But he humbly entreats that the new academy would be silent, since her bold objections would too soon destroy the fair and well ordered structure of his lofty system. Plato, Aristotle, and Zeno, he represents as the only teachers who arm and instruct a citizen for the duties of social life. Of these, the armor of the stoics was found to be of the firmest temper; and it was chiefly worn, both for use and ornament, in the schools of jurisprudence. From the portico, the Roman civilians learned to live, to reason, and to die: but they imbibed in some degree the prejudices of the sect; the love of paradox, the pertinacious habits of dispute, and a minute attachment to words and verbal distinctions. The superiority of _form_ to _matter_ was introduced to ascertain the right of property: and the equality of crimes is countenanced by an opinion of Trebatius, that he who touches the ear, touches the whole body; and that he who steals from a heap of corn, or a hogshead of wine, is guilty of the entire theft.

Arms, eloquence, and the study of the civil law, promoted a citizen to the honors of the Roman state; and the three professions were sometimes more conspicuous by their union in the same character. In the composition of the edict, a learned praetor gave a sanction and preference to his private sentiments; the opinion of a censor, or a counsel, was entertained with respect; and a doubtful interpretation of the laws might be supported by the virtues or triumphs of the civilian.

The patrician arts were long protected by the veil of mystery; and in more enlightened times, the freedom of inquiry established the general principles of jurisprudence. Subtile and intricate cases were elucidated by the disputes of the forum: rules, axioms, and definitions, were admitted as the genuine dictates of reason; and the consent of the legal professors was interwoven into the practice of the tribunals. But these interpreters could neither enact nor execute the laws of the republic; and the judges might disregard the authority of the Scaevolas themselves, which was often overthrown by the eloquence or sophistry of an ingenious pleader. Augustus and Tiberius were the first to adopt, as a useful engine, the science of the civilians; and their servile labors accommodated the old system to the spirit and views of despotism. Under the fair pretence of securing the dignity of the art, the privilege of subscribing legal and valid opinions was confined to the sages of senatorian or equestrian rank, who had been previously approved by the judgment of the prince; and this monopoly prevailed, till Adrian restored the freedom of the profession to every citizen conscious of his abilities and knowledge. The discretion of the praetor was now governed by the lessons of his teachers; the judges were enjoined to obey the comment as well as the text of the law; and the use of codicils was a memorable innovation, which Augustus ratified by the advice of the civilians.

The most absolute mandate could only require that the judges should agree with the civilians, if the civilians agreed among themselves. But positive inst.i.tutions are often the result of custom and prejudice; laws and language are ambiguous and arbitrary; where reason is incapable of p.r.o.nouncing, the love of argument is inflamed by the envy of rivals, the vanity of masters, the blind attachment of their disciples; and the Roman jurisprudence was divided by the once famous sects of the _Proculians_ and _Sabinians_. Two sages of the law, Ateius Capito and Antistius Labeo, adorned the peace of the Augustan age; the former distinguished by the favor of his sovereign; the latter more ill.u.s.trious by his contempt of that favor, and his stern though harmless opposition to the tyrant of Rome. Their legal studies were influenced by the various colors of their temper and principles. Labeo was attached to the form of the old republic; his rival embraced the more profitable substance of the rising monarchy. But the disposition of a courtier is tame and submissive; and Capito seldom presumed to deviate from the sentiments, or at least from the words, of his predecessors; while the bold republican pursued his independent ideas without fear of paradox or innovations. The freedom of Labeo was enslaved, however, by the rigor of his own conclusions, and he decided, according to the letter of the law, the same questions which his indulgent compet.i.tor resolved with a lat.i.tude of equity more suitable to the common sense and feelings of mankind. If a fair exchange had been subst.i.tuted to the payment of money, Capito still considered the transaction as a legal sale; and he consulted nature for the age of p.u.b.erty, without confining his definition to the precise period of twelve or fourteen years. This opposition of sentiments was propagated in the writings and lessons of the two founders; the schools of Capito and Labeo maintained their inveterate conflict from the age of Augustus to that of Adrian; and the two sects derived their appellations from Sabinus and Proculus, their most celebrated teachers. The names of _Ca.s.sians_ and _Pegasians_ were likewise applied to the same parties; but, by a strange reverse, the popular cause was in the hands of Pegasus, a timid slave of Domitian, while the favorite of the Caesars was represented by Ca.s.sius, who gloried in his descent from the patriot a.s.sa.s.sin. By the perpetual edict, the controversies of the sects were in a great measure determined. For that important work, the emperor Adrian preferred the chief of the Sabinians: the friends of monarchy prevailed; but the moderation of Salvius Julian insensibly reconciled the victors and the vanquished. Like the contemporary philosophers, the lawyers of the age of the Antonines disclaimed the authority of a master, and adopted from every system the most probable doctrines. But their writings would have been less voluminous, had their choice been more unanimous. The conscience of the judge was perplexed by the number and weight of discordant testimonies, and every sentence that his pa.s.sion or interest might p.r.o.nounce was justified by the sanction of some venerable name. An indulgent edict of the younger Theodosius excused him from the labor of comparing and weighing their arguments. Five civilians, Caius, Papinian, Paul, Ulpian, and Modestinus, were established as the oracles of jurisprudence: a majority was decisive: but if their opinions were equally divided, a casting vote was ascribed to the superior wisdom of Papinian.

Chapter XLIV: Idea Of The Roman Jurisprudence.--Part IV.

When Justinian ascended the throne, the reformation of the Roman jurisprudence was an arduous but indispensable task. In the s.p.a.ce 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 the work of reformation. The theory of professors was a.s.sisted by the practice of advocates, and the experience of magistrates; and the whole undertaking was animated by the spirit of Tribonian. 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: 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 a.s.siduously cultivated those arts which opened the road of wealth and preferment. From the bar of the Praetorian praefects, he raised himself to the honors of quaestor, 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 virtue or the reputation of Tribonian. In a bigoted and persecuting court, the princ.i.p.al 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 philosophers of Greece. His avarice was more clearly proved and more sensibly 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 sanct.i.ty 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 quaestor was speedily restored, and, till the hour of his death, he possessed, above twenty years, the favor and confidence of the emperor. His pa.s.sive and dutiful submission had 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 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 s.n.a.t.c.hed into the air, and translated alive to the mansions of celestial glory.

If Caesar 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 legislature 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 a.s.sociates, to revise the ordinances of his predecessors, as they were contained, since 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 accomplished 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, 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: two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully recorded, that three millions of lines or sentences, 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 Inst.i.tutes; 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 _Inst.i.tutes_, were declared to be the legitimate system of civil jurisprudence; they alone were admitted into 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 emperor declined the fame and envy of original 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 a.s.sign 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 superst.i.tion of Theodosius, had been abolished by the consent of mankind. But the jurisprudence of the Pandects is circ.u.mscribed within a period of a hundred years, from the perpetual edict to the death of Severus Alexander: the civilians who lived under the first Caesars are seldom permitted to speak, and only three names can be attributed to the age of the republic. The favorite of Justinian (it has been fiercely urged) was fearful of encountering the light of freedom and the gravity of Roman sages. Tribonian condemned to oblivion the genuine and native wisdom of Cato, the Scaevolas, and Sulpicius; while he invoked spirits more congenial to his own, the Syrians, Greeks, and Africans, who flocked to the Imperial court to study Latin as a foreign tongue, and jurisprudence as a lucrative profession. But the ministers of Justinian, were instructed to labor, not for the curiosity of antiquarians, but for the immediate benefit of his subjects. It was their duty to select the useful and practical parts of the Roman law; and the writings of the old republicans, however curious on excellent, were no longer suited to the new system of manners, religion, and government. Perhaps, if the preceptors and friends of Cicero were still alive, our candor would acknowledge, that, except in purity of language, their intrinsic merit was excelled by the school of Papinian and Ulpian. The science of the laws is the slow growth of time and experience, and the advantage both of method and materials, is naturally a.s.sumed by the most recent authors. The civilians of the reign of the Antonines had studied the works of their predecessors: their philosophic spirit had mitigated the rigor of antiquity, simplified the forms of proceeding, and emerged from the jealousy and prejudice of the rival sects. The choice of the authorities that compose the Pandects depended on the judgment of Tribonian: but the power of his sovereign could not absolve him from the sacred obligations of 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 contradictions of the Code and Pandects, still exercise the patience and subtilty of modern civilians.

A rumor devoid of evidence has been propagated by the enemies of Justinian; that the jurisprudence of ancient Rome was reduced to ashes by the author of the Pandects, from the vain persuasion, that it was now either false or superfluous. Without usurping an office so invidious, the emperor might safely commit to ignorance and time the accomplishments of this destructive wish. Before the invention of printing and paper, the labor and the materials of writing could be purchased only by the rich; and it may reasonably be computed, that the price of books was a hundred fold their present value. Copies were slowly multiplied and cautiously renewed: the hopes of profit tempted the sacrilegious scribes to erase the characters of antiquity, and Sophocles or Tacitus were obliged to resign the parchment to missals, homilies, and the golden legend. If such was the fate of the most beautiful compositions of genius, what stability could be expected for the dull and barren works of an obsolete science? The books of jurisprudence were interesting to few, and entertaining to none: their value was connected with present use, and they sunk forever as soon as that use was superseded by the innovations of fas.h.i.+on, superior merit, or public authority. In the age of peace and learning, between Cicero and the last of the Antonines, many losses had been already sustained, and some luminaries of the school, or forum, were known only to the curious by tradition and report. Three hundred and sixty years of disorder and decay accelerated the progress of oblivion; and it may fairly be presumed, that of the writings, which Justinian is accused of neglecting, many were no longer to be found in the libraries of the East. The copies of Papinian, or Ulpian, which the reformer had proscribed, were deemed unworthy of future notice: the Twelve Tables and praetorian edicts insensibly vanished, and the monuments of ancient Rome were neglected or destroyed by the envy and ignorance of the Greeks.