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 passages were imperfectly explained by the study of legal
antiquarians. To define the ambiguities, to circumscribe the latitude,
to apply the principles, to extend the consequences, to reconcile the
real or apparent contradictions, was a much nobler 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 prÊtor, 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 institutions 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 assembly, 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 instituted, books were composed, and
both the living and the dead became subservient to the instruction of
the student. The _tripartite_ of ∆lius PÊtus, 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 ScÊvola was illustrated 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 lustre under the republic and
under the CÊsars, is finally closed by the respectable characters of
Papinian, of Paul, and of Ulpian. Their names, and the various titles
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
multitude of voluminous civilians who fill the intermediate space, 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 assured 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 ScÊvolas 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 mass 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 constitution. The whole universe, according to his sublime
hypothesis, forms one immense commonwealth: gods and men, who
participate of the same essence, are members of the same community;
reason prescribes the law of nature and nations; and all positive
institutions, 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 prÊtor 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 ScÊvolas 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 prÊtor 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 institutions are often the result of custom and prejudice; laws
and language are ambiguous and arbitrary; where reason is incapable of
pronouncing, 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 illustrious
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 competitor resolved with
a latitude of equity more suitable to the common sense and feelings
of mankind. If a fair exchange had been substituted to the payment of
money, Capito still considered the transaction as a legal sale; and
he consulted nature for the age of puberty, 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 _Cassians_ 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 CÊsars was represented by Cassius, who gloried
in his descent from the patriot assassin. 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 passion or interest might pronounce 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 space 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 assisted 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
assiduously cultivated those arts which opened the road of wealth and
preferment. From the bar of the PrÊtorian prÊfects, he raised himself
to the honors of quÊstor, 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
principal 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 sanctity 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 quÊstor was speedily restored,
and, till the hour of his death, he possessed, above twenty years, the
favor and confidence of the emperor. His passive 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
snatched into the air, and translated alive to the mansions of celestial
glory.
If CÊsar 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
associates, 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
Institutes; 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 _Institutes_, 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 assign 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 superstition
of Theodosius, had been abolished by the consent of mankind. But the
jurisprudence of the Pandects is circumscribed within a period of
a hundred years, from the perpetual edict to the death of Severus
Alexander: the civilians who lived under the first CÊsars 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 ScÊvolas, 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 assumed 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 fashion, 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
prÊtorian edicts insensibly vanished, and the monuments of ancient Rome
were neglected or destroyed by the envy and ignorance of the Greeks.
Even the Pandects themselves have escaped with difficulty and danger
from the common shipwreck, and criticism has pronounced that _all_ the
editions and manuscripts of the West are derived from _one_ original.
It was transcribed at Constantinople in the beginning of the seventh
century, was successively transported by the accidents of war and
commerce to Amalphi, Pisa, and Florence, and is now deposited as a
sacred relic in the ancient palace of the republic.