From Augustus to Trajan, the modest Caesars were content to

promulgate their edicts in the various characters of a Roman

magistrate; 3511 and, in the decrees of the senate, the epistles

and orations of the prince were respectfully inserted. Adrian 36

appears to have been the first who assumed, 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

constitutions.” 37 During four centuries, from Adrian to

Justinian the public and private jurisprudence was moulded by the

will of the sovereign; and few institutions, 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 tiction was

propagated by the servility, or perhaps the ignorance, of the

civilians, who basked in the sunshine 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” 38 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 titles 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,

39 and an irrevocable gift of the people, were created by the

fancy of Ulpian, or more probably of Tribonian himself; 40 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.” 41 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

passion,” 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.” 42 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; 43 and the purest materials of the Code and Pandects are

inscribed with the names of Caracalla and his ministers. 44 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. 45 Yet in the

rescripts, 46 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, 47 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. 4711 The two first, of

which some fragments have escaped, were framed by two private

lawyers, to preserve the constitutions 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 epurious or

obsolete. 48

3511 (return) [ It is an important question in what manner the

emperors were invested with this legislative power. The newly

discovered Gaius distinctly states that it was in virtue of a

law—Nec unquam dubitatum est, quin id legis vicem obtineat, cum

ipse imperator per legem imperium accipiat. But it is still

uncertain whether this was a general law, passed on the

transition of the government from a republican to a monarchical

form, or a law passed on the accession of each emperor. Compare

Hugo, Hist. du Droit Romain, (French translation,) vol. ii. p.

8.—M.]

36 (return) [ His laws are the first in the code. See Dodwell,

(Praelect. Cambden, p. 319—340,) who wanders from the subject in

confused reading and feeble paradox. * Note: This is again an

error which Gibbon shares with Heineccius, and the generality of

authors. It arises from having mistaken the insignificant edict

of Hadrian, inserted in the Code of Justinian, (lib. vi, tit.

xxiii. c. 11,) for the first constitutio principis, without

attending to the fact, that the Pandects contain so many

constitutions of the emperors, from Julius Caesar, (see l. i.

Digest 29, l) M. Hugo justly observes, that the acta of Sylla,

approved by the senate, were the same thing with the

constitutions of those who after him usurped the sovereign power.

Moreover, we find that Pliny, and other ancient authors, report a

multitude of rescripts of the emperors from the time of Augustus.

See Hugo, Hist. du Droit Romain, vol. ii. p. 24-27.—W.]

37 (return) [ Totam illam veterem et squalentem sylvam legum

novis principalium rescriptorum et edictorum securibus truncatis

et caeditis; (Apologet. c. 4, p. 50, edit. Havercamp.) He

proceeds to praise the recent firmness of Severus, who repealed

the useless or pernicious laws, without any regard to their age

or authority.]

38 (return) [ The constitutional style of Legibus Solutus is

misinterpreted by the art or ignorance of Dion Cassius, (tom. i.

l. liii. p. 713.) On this occasion, his editor, Reimer, joins the

universal censure which freedom and criticism have pronounced

against that slavish historian.]

39 (return) [ The word (Lex Regia) was still more recent than the

thing. The slaves of Commodus or Caracalla would have started at

the name of royalty. Note: Yet a century before, Domitian was

called not only by Martial but even in public documents, Dominus

et Deus Noster. Sueton. Domit. cap. 13. Hugo.—W.]

40 (return) [ See Gravina (Opp. p. 501—512) and Beaufort,

(Republique Romaine, tom. i. p. 255—274.) He has made a proper

use of two dissertations by John Frederic Gronovius and Noodt,

both translated, with valuable notes, by Barbeyrac, 2 vols. in

12mo. 1731.]

41 (return) [ Institut. l. i. tit. ii. No. 6. Pandect. l. i. tit.

iv. leg. 1. Cod. Justinian, l. i. tit. xvii. leg. 1, No. 7. In

his Antiquities and Elements, Heineccius has amply treated de

constitutionibus principum, which are illustrated by Godefroy

(Comment. ad Cod. Theodos. l. i. tit. i. ii. iii.) and Gravina,

(p. 87—90.) ——Note: Gaius asserts that the Imperial edict or

rescript has and always had, the force of law, because the

Imperial authority rests upon law. Constitutio principis est,

quod imperator decreto vel edicto, vel epistola constituit, nee

unquam dubitatum, quin id legis, vicem obtineat, cum ipse

imperator per legem imperium accipiat. Gaius, 6 Instit. i. 2.—M.]

42 (return) [ Theophilus, in Paraphras. Graec. Institut. p. 33,

34, edit. Reitz For his person, time, writings, see the

Theophilus of J. H. Mylius, Excurs. iii. p. 1034—1073.]

43 (return) [ There is more envy than reason in the complaint of

Macrinus (Jul. Capitolin. c. 13:) Nefas esse leges videri Commodi

et Caracalla at hominum imperitorum voluntates. Commodus was made

a Divus by Severus, (Dodwell, Praelect. viii. p. 324, 325.) Yet

he occurs only twice in the Pandects.]

44 (return) [ Of Antoninus Caracalla alone 200 constitutions are

extant in the Code, and with his father 160. These two princes

are quoted fifty times in the Pandects, and eight in the

Institutes, (Terasson, p. 265.)]

45 (return) [ Plin. Secund. Epistol. x. 66. Sueton. in Domitian.

c. 23.]

46 (return) [ It was a maxim of Constantine, contra jus rescripta

non valeant, (Cod. Theodos. l. i. tit. ii. leg. 1.) The emperors

reluctantly allow some scrutiny into the law and the fact, some

delay, petition, &c.; but these insufficient remedies are too

much in the discretion and at the peril of the judge.]

47 (return) [ A compound of vermilion and cinnabar, which marks

the Imperial diplomas from Leo I. (A.D. 470) to the fall of the

Greek empire, (Bibliotheque Raisonnee de la Diplomatique, tom. i.

p. 504—515 Lami, de Eruditione Apostolorum, tom. ii. p.

720-726.)]

4711 (return) [ Savigny states the following as the authorities

for the Roman law at the commencement of the fifth century:— 1.

The writings of the jurists, according to the regulations of the

Constitution of Valentinian III., first promulgated in the West,

but by its admission into the Theodosian Code established

likewise in the East. (This Constitution established the

authority of the five great jurists, Papinian, Paulus, Caius,

Ulpian, and Modestinus as interpreters of the ancient law. * * *

In case of difference of opinion among these five, a majority

decided the case; where they were equal, the opinion of Papinian,

where he was silent, the judge; but see p. 40, and Hugo, vol. ii.

p. 89.) 2. The Gregorian and Hermogenian Collection of the

Imperial Rescripts. 3. The Code of Theodosius II. 4. The

particular Novellae, as additions and Supplements to this Code

Savigny. vol. i. p 10.—M.]

48 (return) [ Schulting, Jurisprudentia Ante-Justinianea, p.

681-718. Cujacius assigned to Gregory the reigns from Hadrian to

Gallienus. and the continuation to his fellow-laborer Hermogenes.

This general division may be just, but they often trespassed on

each other’s ground]

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; 49 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. 50 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. 51 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 competitors 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. 52

49 (return) [ Scaevola, most probably Q. Cervidius Scaevola; the

master of Papinian considers this acceptance of fire and water as

the essence of marriage, (Pandect. l. xxiv. tit. 1, leg. 66. See

Heineccius, Hist. J. R. No. 317.)]

50 (return) [ Cicero (de Officiis, iii. 19) may state an ideal

case, but St. Am brose (de Officiis, iii. 2,) appeals to the

practice of his own times, which he understood as a lawyer and a

magistrate, (Schulting ad Ulpian, Fragment. tit. xxii. No. 28, p.

643, 644.) * Note: In this passage the author has endeavored to

collect all the examples of judicial formularies which he could

find. That which he adduces as the form of cretio haereditatis is

absolutely false. It is sufficient to glance at the passage in

Cicero which he cites, to see that it has no relation to it. The

author appeals to the opinion of Schulting, who, in the passage

quoted, himself protests against the ridiculous and absurd

interpretation of the passage in Cicero, and observes that

Graevius had already well explained the real sense. See in Gaius

the form of cretio haereditatis Inst. l. ii. p. 166.—W.]

51 (return) [ The furtum lance licioque conceptum was no longer

understood in the time of the Antonines, (Aulus Gellius, xvi.

10.) The Attic derivation of Heineccius, (Antiquitat. Rom. l. iv.

tit. i. No. 13—21) is supported by the evidence of Aristophanes,

his scholiast, and Pollux. * Note: Nothing more is known of this

ceremony; nevertheless we find that already in his own days Gaius

turned it into ridicule. He says, (lib. iii. et p. 192, Sections

293,) prohibiti actio quadrupli ex edicto praetoris introducta

est; lex autem eo nomine nullam poenam constituit. Hoc solum

praecepit, ut qui quaerere velit, nudus quaerat, linteo cinctus,

lancem habens; qui si quid invenerit. jubet id lex furtum

manifestum esse. Quid sit autem linteum? quaesitum est. Sed

verius est consuti genus esse, quo necessariae partes tegerentur.

Quare lex tota ridicula est. Nam qui vestitum quaerere prohibet,

is et nudum quaerere prohibiturus est; eo magis, quod invenerit

ibi imponat, neutrum eorum procedit, si id quod quaeratur, ejus

magnitudinis aut naturae sit ut neque subjici, neque ibi imponi

possit. Certe non dubitatur, cujuscunque materiae sit ea lanx,

satis legi fieri. We see moreover, from this passage, that the

basin, as most authors, resting on the authority of Festus, have

supposed, was not used to cover the figure.—W. Gibbon says the

face, though equally inaccurately. This passage of Gaius, I must

observe, as well as others in M. Warnkonig’s work, is very

inaccurately printed.—M.]

52 (return) [ In his Oration for Murena, (c. 9—13,) Cicero turns

into ridicule the forms and mysteries of the civilians, which are

represented with more candor by Aulus Gellius, (Noct. Attic. xx.

10,) Gravina, (Opp p. 265, 266, 267,) and Heineccius,

(Antiquitat. l. iv. tit. vi.) * Note: Gibbon had conceived

opinions too decided against the forms of procedure in use among

the Romans. Yet it is on these solemn forms that the certainty of

laws has been founded among all nations. Those of the Romans were

very intimately allied with the ancient religion, and must of

necessity have disappeared as Rome attained a higher degree of

civilization. Have not modern nations, even the most civilized,

overloaded their laws with a thousand forms, often absurd, almost

always trivial? How many examples are afforded by the English

law! See, on the nature of these forms, the work of M. de Savigny

on the Vocation of our Age for Legislation and Jurisprudence,

Heidelberg, 1814, p. 9, 10.—W. This work of M. Savigny has been

translated into English by Mr. Hayward.—M.]

A more liberal art was cultivated, however, by the sages 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 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 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 institutions of

their country. 521 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. 53 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

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 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 Caesars, 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.

521 (return) [ Compare, on the Responsa Prudentum, Warnkonig,

Histoire Externe du Droit Romain Bruxelles, 1836, p. 122.—M.]

53 (return) [ The series of the civil lawyers is deduced by

Pomponius, (de Origine Juris Pandect. l. i. tit. ii.) The moderns

have discussed, with learning and criticism, this branch of

literary history; and among these I have chiefly been guided by

Gravina (p. 41—79) and Hei neccius, (Hist. J. R. No. 113-351.)

Cicero, more especially in his books de Oratore, de Claris

Oratoribus, de Legibus, and the Clavie Ciceroniana of Ernesti

(under the names of Mucius, &c.) afford much genuine and pleasing

information. Horace often alludes to the morning labors of the

civilians, (Serm. I. i. 10, Epist. II. i. 103, &c)

Agricolam laudat juris legumque peritus

Sub galli cantum, consultor ubi ostia pulsat.

——————

Romæ dulce diu fuit et solemne, reclusâ

Mane domo vigilare, clienti promere jura.

* Note: It is particularly in this division of the history of the

Roman jurisprudence into epochs, that Gibbon displays his

profound knowledge of the laws of this people. M. Hugo, adopting

this division, prefaced these three periods with the history of

the times anterior to the Law of the Twelve Tables, which are, as

it were, the infancy of the Roman law.—W]

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 5311 was the first civilian who established his art on

a certain and general theory. 54 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. 55 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 56 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, 57 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. 58

5311 (return) [ M. Hugo thinks that the ingenious system of the

Institutes adopted by a great number of the ancient lawyers, and

by Justinian himself, dates from Severus Sulpicius. Hist du Droit

Romain, vol.iii.p. 119.—W.]

54 (return) [ Crassus, or rather Cicero himself, proposes (de

Oratore, i. 41, 42) an idea of the art or science of

jurisprudence, which the eloquent, but illiterate, Antonius (i.

58) affects to deride. It was partly executed by Servius

Sulpicius, (in Bruto, c. 41,) whose praises are elegantly varied

in the classic Latinity of the Roman Gravina, (p. 60.)]

55 (return) [ Perturbatricem autem omnium harum rerum academiam,

hanc ab Arcesila et Carneade recentem, exoremus ut sileat, nam si

invaserit in haec, quae satis scite instructa et composita

videantur, nimis edet ruinas, quam quidem ego placare cupio,

submovere non audeo. (de Legibus, i. 13.) From this passage

alone, Bentley (Remarks on Free-thinking, p. 250) might have

learned how firmly Cicero believed in the specious doctrines

which he has adorned.]

56 (return) [ The stoic philosophy was first taught at Rome by

Panaetius, the friend of the younger Scipio, (see his life in the

Mem. de l’Academis des Inscriptions, tom. x. p. 75—89.)]

57 (return) [ As he is quoted by Ulpian, (leg.40, 40, ad Sabinum

in Pandect. l. xlvii. tit. ii. leg. 21.) Yet Trebatius, after he

was a leading civilian, que qui familiam duxit, became an

epicurean, (Cicero ad Fam. vii. 5.) Perhaps he was not constant

or sincere in his new sect. * Note: Gibbon had entirely

misunderstood this phrase of Cicero. It was only since his time

that the real meaning of the author was apprehended. Cicero, in

enumerating the qualifications of Trebatius, says, Accedit etiam,

quod familiam ducit in jure civili, singularis memoria, summa

scientia, which means that Trebatius possessed a still further

most important qualification for a student of civil law, a

remarkable memory, &c. This explanation, already conjectured by

G. Menage, Amaenit. Juris Civilis, c. 14, is found in the

dictionary of Scheller, v. Familia, and in the History of the

Roman Law by M. Hugo. Many authors have asserted, without any

proof sufficient to warrant the conjecture, that Trebatius was of

the school of Epicurus—W.]

58 (return) [ See Gravina (p. 45—51) and the ineffectual cavils

of Mascou. Heineccius (Hist. J. R. No. 125) quotes and approves a

dissertation of Everard Otto, de Stoica Jurisconsultorum

Philosophia.]

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, 59 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. 60 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. 61 6111

59 (return) [ We have heard of the Catonian rule, the Aquilian

stipulation, and the Manilian forms, of 211 maxims, and of 247

definitions, (Pandect. l. i. tit. xvi. xvii.)]

60 (return) [ Read Cicero, l. i. de Oratore, Topica, pro Murena.]

61 (return) [ See Pomponius, (de Origine Juris Pandect. l. i.

tit. ii. leg. 2, No 47,) Heineccius, (ad Institut. l. i. tit. ii.

No. 8, l. ii. tit. xxv. in Element et Antiquitat.,) and Gravina,

(p. 41—45.) Yet the monopoly of Augustus, a harsh measure, would

appear with some softening in contemporary evidence; and it was

probably veiled by a decree of the senate]

6111 (return) [ The author here follows the then generally

received opinion of Heineccius. The proofs which appear to

confirm it are l. 2 47, D. I. 2, and 8. Instit. I. 2. The first

of these passages speaks expressly of a privilege granted to

certain lawyers, until the time of Adrian, publice respondendi

jus ante Augusti tempora non dabatur. Primus Divus ut major juris

auctoritas haberetur, constituit, ut ex auctoritate ejus

responderent. The passage of the Institutes speaks of the

different opinions of those, quibus est permissum jura condere.

It is true that the first of these passages does not say that the

opinion of these privileged lawyers had the force of a law for

the judges. For this reason M. Hugo altogether rejects the

opinion adopted by Heineccius, by Bach, and in general by all the

writers who preceded him. He conceives that the 8 of the

Institutes referred to the constitution of Valentinian III.,

which regulated the respective authority to be ascribed to the

different writings of the great civilians. But we have now the

following passage in the Institutes of Gaius: Responsa prudentum

sunt sententiae et opiniones eorum, quibus permissum est jura

condere; quorum omnium si in unum sententiae concorrupt, id quod

ita sentiunt, legis vicem obtinet, si vero dissentiunt, judici

licet, quam velit sententiam sequi, idque rescripto Divi Hadrian

signiticatur. I do not know, how in opposition to this passage,

the opinion of M. Hugo can be maintained. We must add to this the

passage quoted from Pomponius and from such strong proofs, it

seems incontestable that the emperors had granted some kind of

privilege to certain civilians, quibus permissum erat jura

condere. Their opinion had sometimes the force of law, legis

vicem. M. Hugo, endeavoring to reconcile this phrase with his

system, gives it a forced interpretation, which quite alters the

sense; he supposes that the passage contains no more than what is

evident of itself, that the authority of the civilians was to be

respected, thus making a privilege of that which was free to all

the world. It appears to me almost indisputable, that the

emperors had sanctioned certain provisions relative to the

authority of these civilians, consulted by the judges. But how

far was their advice to be respected? This is a question which it

is impossible to answer precisely, from the want of historic

evidence. Is it not possible that the emperors established an

authority to be consulted by the judges? and in this case this

authority must have emanated from certain civilians named for

this purpose by the emperors. See Hugo, l. c. Moreover, may not

the passage of Suetonius, in the Life of Caligula, where he says

that the emperor would no longer permit the civilians to give

their advice, mean that Caligula entertained the design of

suppressing this institution? See on this passage the Themis,

vol. xi. p. 17, 36. Our author not being acquainted with the

opinions opposed to Heineccius has not gone to the bottom of the

subject.—W.]

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. 62 Two sages of the law, Ateius Capito

and Antistius Labeo, 63 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; 64 and

he consulted nature for the age of puberty, without confining his

definition to the precise period of twelve or fourteen years. 65

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; 66 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, 67 a timid slave of Domitian, while the

favorite of the Caesars was represented by Cassius, 68 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. 69 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. 70

62 (return) [ I have perused the Diatribe of Gotfridus Mascovius,

the learned Mascou, de Sectis Jurisconsultorum, (Lipsiae, 1728,

in 12mo., p. 276,) a learned treatise on a narrow and barren

ground.]

63 (return) [ See the character of Antistius Labeo in Tacitus,

(Annal. iii. 75,) and in an epistle of Ateius Capito, (Aul.

Gellius, xiii. 12,) who accuses his rival of libertas nimia et

vecors. Yet Horace would not have lashed a virtuous and

respectable senator; and I must adopt the emendation of Bentley,

who reads Labieno insanior, (Serm. I. iii. 82.) See Mascou, de

Sectis, (c. i. p. 1—24.)]

64 (return) [ Justinian (Institut. l. iii. tit. 23, and Theophil.

Vers. Graec. p. 677, 680) has commemorated this weighty dispute,

and the verses of Homer that were alleged on either side as legal

authorities. It was decided by Paul, (leg. 33, ad Edict. in

Pandect. l. xviii. tit. i. leg. 1,) since, in a simple exchange,

the buyer could not be discriminated from the seller.]

65 (return) [ This controversy was likewise given for the

Proculians, to supersede the indecency of a search, and to comply

with the aphorism of Hippocrates, who was attached to the

septenary number of two weeks of years, or 700 of days,

(Institut. l. i. tit. xxii.) Plutarch and the Stoics (de Placit.

Philosoph. l. v. c. 24) assign a more natural reason. Fourteen

years is the age. See the vestigia of the sects in Mascou, c. ix.

p. 145—276.]

66 (return) [ The series and conclusion of the sects are

described by Mascou, (c. ii.—vii. p. 24—120;) and it would be

almost ridiculous to praise his equal justice to these obsolete

sects. * Note: The work of Gaius, subsequent to the time of

Adrian, furnishes us with some information on this subject. The

disputes which rose between these two sects appear to have been

very numerous. Gaius avows himself a disciple of Sabinus and of

Caius. Compare Hugo, vol. ii. p. 106.—W.]

67 (return) [ At the first summons he flies to the

turbot-council; yet Juvenal (Satir. iv. 75—81) styles the præfect

or bailiff of Rome sanctissimus legum interpres. From his

science, says the old scholiast, he was called, not a man, but a

book. He derived the singular name of Pegasus from the galley

which his father commanded.]

68 (return) [ Tacit. Annal. xvii. 7. Sueton. in Nerone, c.

xxxvii.]

69 (return) [ Mascou, de Sectis, c. viii. p. 120—144 de

Herciscundis, a legal term which was applied to these eclectic

lawyers: herciscere is synonymous to dividere. * Note: This word

has never existed. Cujacius is the author of it, who read me

words terris condi in Servius ad Virg. herciscundi, to which he

gave an erroneous interpretation.—W.]

70 (return) [ See the Theodosian Code, l. i. tit. iv. with

Godefroy’s Commentary, tom. i. p. 30—35. [! This decree might

give occasion to Jesuitical disputes like those in the Lettres

Provinciales, whether a Judge was obliged to follow the opinion

of Papinian, or of a majority, against his judgment, against his

conscience, &c. Yet a legislator might give that opinion, however

false, the validity, not of truth, but of law. Note: We possess

(since 1824) some interesting information as to the framing of

the Theodosian Code, and its ratification at Rome, in the year

438. M. Closius, now professor at Dorpat in Russia, and M.

Peyron, member of the Academy of Turin, have discovered, the one

at Milan, the other at Turin, a great part of the five first

books of the Code which were wanting, and besides this, the

reports (gesta) of the sitting of the senate at Rome, in which

the Code was published, in the year after the marriage of

Valentinian III. Among these pieces are the constitutions which

nominate commissioners for the formation of the Code; and though

there are many points of considerable obscurity in these

documents, they communicate many facts relative to this

legislation. 1. That Theodosius designed a great reform in the

legislation; to add to the Gregorian and Hermogenian codes all

the new constitutions from Constantine to his own day; and to

frame a second code for common use with extracts from the three

codes, and from the works of the civil lawyers. All laws either

abrogated or fallen into disuse were to be noted under their

proper heads. 2. An Ordinance was issued in 429 to form a

commission for this purpose of nine persons, of which Antiochus,

as quaestor and præfectus, was president. A second commission of

sixteen members was issued in 435 under the same president. 3. A

code, which we possess under the name of Codex Theodosianus, was

finished in 438, published in the East, in an ordinance addressed

to the Praetorian præfect, Florentinus, and intended to be

published in the West. 4. Before it was published in the West,

Valentinian submitted it to the senate. There is a report of the

proceedings of the senate, which closed with loud acclamations

and gratulations.—From Warnkonig, Histoire du Droit Romain, p.

169-Wenck has published this work, Codicis Theodosiani libri

priores. Leipzig, 1825.—M.] * Note *: Closius of Tubingen

communicated to M.Warnkonig the two following constitutions of

the emperor Constantine, which he discovered in the Ambrosian

library at Milan:— 1. Imper. Constantinus Aug. ad Maximium Praef.

Praetorio. Perpetuas prudentum contentiones eruere cupientes,

Ulpiani ac Pauli, in Papinianum notas, qui dum ingenii laudem

sectantur, non tam corrigere eum quam depravere maluerunt,

aboleri praecepimus. Dat. III. Kalend. Octob. Const. Cons. et

Crispi, (321.) Idem. Aug. ad Maximium Praef Praet. Universa, quae

scriptura Pauli continentur, recepta auctoritate firmanda runt,

et omni veneratione celebranda. Ideoque sententiarum libros

plepissima luce et perfectissima elocutione et justissima juris

ratione succinctos in judiciis prolatos valere minimie dubitatur.

Dat. V. Kalend. Oct. Trovia Coust. et Max. Coss. (327.)—W]

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. 71 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. 72 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: 73 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

Praetorian præfects, 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 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 quaestor 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 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. 74

71 (return) [ For the legal labors of Justinian, I have studied

the Preface to the Institutes; the 1st, 2d, and 3d Prefaces to

the Pandects; the 1st and 2d Preface to the Code; and the Code

itself, (l. i. tit. xvii. de Veteri Jure enucleando.) After these

original testimonies, I have consulted, among the moderns,

Heineccius, (Hist. J. R. No. 383—404,) Terasson. (Hist. de la

Jurisprudence Romaine, p. 295—356,) Gravina, (Opp. p. 93-100,)

and Ludewig, in his Life of Justinian, (p.19—123, 318-321; for

the Code and Novels, p. 209—261; for the Digest or Pandects, p.

262—317.)]

72 (return) [ For the character of Tribonian, see the testimonies

of Procopius, (Persic. l. i. c. 23, 24. Anecdot. c. 13, 20,) and

Suidas, (tom. iii. p. 501, edit. Kuster.) Ludewig (in Vit.

Justinian, p. 175—209) works hard, very hard, to whitewash—the

blackamoor.]

73 (return) [ I apply the two passages of Suidas to the same man;

every circumstance so exactly tallies. Yet the lawyers appear

ignorant; and Fabricius is inclined to separate the two

characters, (Bibliot. Grae. tom. i. p. 341, ii. p. 518, iii. p.

418, xii. p. 346, 353, 474.)]

74 (return) [ This story is related by Hesychius, (de Viris

Illustribus,) Procopius, (Anecdot. c. 13,) and Suidas, (tom. iii.

p. 501.) Such flattery is incredible! —Nihil est quod credere de

se Non possit, cum laudatur Diis aequa potestas. Fontenelle (tom.

i. p. 32—39) has ridiculed the impudence of the modest Virgil.

But the same Fontenelle places his king above the divine

Augustus; and the sage Boileau has not blushed to say, “Le destin

a ses yeux n’oseroit balancer” Yet neither Augustus nor Louis

XIV. were fools.]

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 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 of Pandects, 75 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: 76 two thousand treatises

were comprised in an abridgment of fifty books; and it has been

carefully recorded, that three millions of lines or sentences, 77

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.

75 (return) [ General receivers was a common title of the Greek

miscellanies, (Plin. Praefat. ad Hist. Natur.) The Digesta of

Scaevola, Marcellinus, Celsus, were already familiar to the

civilians: but Justinian was in the wrong when he used the two

appellations as synonymous. Is the word Pandects Greek or

Latin—masculine or feminine? The diligent Brenckman will not

presume to decide these momentous controversies, (Hist. Pandect.

Florentine. p. 200—304.) Note: The word was formerly in common

use. See the preface is Aulus Gellius—W]

76 (return) [ Angelus Politianus (l. v. Epist. ult.) reckons

thirty-seven (p. 192—200) civilians quoted in the Pandects—a

learned, and for his times, an extraordinary list. The Greek

index to the Pandects enumerates thirty-nine, and forty are

produced by the indefatigable Fabricius, (Bibliot. Graec. tom.

iii. p. 488—502.) Antoninus Augustus (de Nominibus Propriis

Pandect. apud Ludewig, p. 283) is said to have added fifty-four

names; but they must be vague or second-hand references.]

77 (return) [ The item of the ancient Mss. may be strictly

defined as sentences or periods of a complete sense, which, on

the breadth of the parchment rolls or volumes, composed as many

lines of unequal length. The number in each book served as a

check on the errors of the scribes, (Ludewig, p. 211—215; and his

original author Suicer. Thesaur. Ecclesiast. tom. i. p

1021-1036).]

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 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, 78 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 or 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, 79 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. 80 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, 81 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. 82

78 (return) [ An ingenious and learned oration of Schultingius

(Jurisprudentia Ante-Justinianea, p. 883—907) justifies the

choice of Tribonian, against the passionate charges of Francis

Hottoman and his sectaries.]

79 (return) [ Strip away the crust of Tribonian, and allow for

the use 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 fastidious grammarian of the xvth

century, and by his apologist Floridus Sabinus. It has been

defended by Alciat, and a name less advocate, (most probably

James Capellus.) Their various treatises are collected by Duker,

(Opuscula de Latinitate veterum Jurisconsultorum, Lugd. Bat.

1721, in 12mo.) Note: Gibbon is mistaken with regard to Valla,

who, though he inveighs against the barbarous style of the

civilians of his own day, lavishes the highest praise on the

admirable purity of the language of the ancient writers on civil

law. (M. Warnkonig quotes a long passage of Valla in

justification of this observation.) Since his time, this truth

has been recognized by men of the highest eminence, such as

Erasmus, David Hume and Runkhenius.—W.]

80 (return) [ Nomina quidem veteribus servavimus, legum autem

veritatem nostram fecimus. Itaque siquid erat in illis

seditiosum, multa autem talia erant ibi reposita, hoc decisum est

et definitum, et in perspicuum finem deducta est quaeque lex,

(Cod. Justinian. l. i. tit. xvii. leg. 3, No 10.) A frank

confession! * Note: Seditiosum, in the language of Justinian,

means not seditious, but discounted.—W.]

81 (return) [ The number of these emblemata (a polite name for

forgeries) is much reduced by Bynkershoek, (in the four last

books of his Observations,) who poorly maintains the right of

Justinian and the duty of Tribonian.]

82 (return) [ The antinomies, or opposite laws of the Code and

Pandects, are sometimes 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.)]

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. 83 Copies were slowly multiplied and

cautiously renewed: the hopes of profit tempted the sacrilegious

scribes to erase the characters of antiquity, 8311 and Sophocles

or Tacitus were obliged to resign the parchment to missals,

homilies, and the golden legend. 84 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. 85 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. 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. 86 It was transcribed at Constantinople in the

beginning of the seventh century, 87 was successively transported

by the accidents of war and commerce to Amalphi, 88 Pisa, 89 and

Florence, 90 and is now deposited as a sacred relic 91 in the

ancient palace of the republic. 92

83 (return) [ When Faust, 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 edit.)]

8311 (return) [ Among the works which have been recovered, by the

persevering and successful endeavors of M. Mai and his followers

to trace the imperfectly erased characters of the ancient writers

on these Palimpsests, Gibbon at this period of his labors would

have hailed with delight the recovery of the Institutes of Gaius,

and the fragments of the Theodosian Code, published by M Keyron

of Turin.—M.]

84 (return) [ This execrable practice prevailed from the viiith,

and more especially from the xiith, century, when it became

almost universal (Montfaucon, in the Memoires de l’Academie, tom.

vi. p. 606, &c. Bibliotheque Raisonnee de la Diplomatique, tom.

i. p. 176.)]

85 (return) [ Pomponius (Pandect. l. 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. Eight of the Augustan sages were reduced to

a compendium: of Cascellius, scripta non extant sed unus liber,

&c.; of Trebatius, minus frequentatur; of Tubero, libri parum

grati sunt. Many quotations in the Pandects are derived from

books which Tribonian never saw; and in the long period from the

viith to the xiiith century of Rome, the apparent reading of the

moderns successively depends on the knowledge and veracity of

their predecessors.]

86 (return) [ All, in several instances, repeat the errors of the

scribe and the transpositions of some leaves in the Florentine

Pandects. This fact, if it be true, is decisive. Yet the Pandects

are quoted by Ivo of Chartres, (who died in 1117,) by Theobald,

archbishop of Canterbury, and by Vacarius, our first professor,

in the year 1140, (Selden ad Fletam, c. 7, tom. ii. p.

1080—1085.) Have our British Mss. of the Pandects been collated?]

87 (return) [ See the description of this original in Brenckman,

(Hist. Pandect. Florent. l. i. c. 2, 3, p. 4—17, and l. ii.)

Politian, an enthusiast, 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

band of a Greek scribe.]

88 (return) [ 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 (return) [ The discovery of the Pandects 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 chronicle, (p. 409, 410,) without a name or

a date. The whole story, though unknown to the xiith 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—50.) The Liber Pandectarum of Pisa was undoubtedly

consulted in the xivth century by the great Bartolus, (p. 406,

407. See l. i. c. 9, p. 50—62.) Note: Savigny (vol. iii. p. 83,

89) examines and rejects the whole story. See likewise Hallam

vol. iii. p. 514.—M.]

90 (return) [ Pisa was taken by the Florentines in the year 1406;

and in 1411 the Pandects were transported to the capital. These

events are authentic and famous.]

91 (return) [ They were new bound in purple, deposited in a rich

casket, and shown to curious travellers by the monks and

magistrates bareheaded, and with lighted tapers, (Brenckman, l.

i. c. 10, 11, 12, p. 62—93.)]

92 (return) [ After the collations of Politian, Bologninus, and

Antoninus Augustinus, and the splendid edition of the Pandects by

Taurellus, (in 1551,) Henry Brenckman, a Dutchman, undertook a

pilgrimage to Florence, where he employed several years in the

study of a single manuscript. His Historia Pandectarum

Florentinorum, (Utrecht, 1722, in 4to.,) though a monument of

industry, is a small portion of his original design.]

It is the first care of a reformer to prevent any future

reformation. To maintain the text of the Pandects, the

Institutes, and the Code, the use of ciphers and abbreviations

was rigorously proscribed; and as Justinian recollected, that the

perpetual edict had been buried under the weight of commentators,

he denounced the punishment of forgery against the rash civilians

who should presume to interpret or pervert the will of their

sovereign. The scholars of Accursius, of Bartolus, of Cujacius,

should blush for their accumulated guilt, unless they dare to

dispute his right of binding the authority of his successors, and

the native freedom of the mind. But the emperor was unable to fix

his own inconstancy; and, while he boasted of renewing the

exchange of Diomede, of transmuting brass into gold, 93

discovered the necessity of purifying his gold from the mixture

of baser alloy. Six years had not elapsed from the publication of

the Code, before he condemned the imperfect attempt, by a new and

more accurate edition of the same work; which he enriched with

two hundred of his own laws, and fifty decisions of the darkest

and most intricate points of jurisprudence. Every year, or,

according to Procopius, each day, of his long reign, was marked

by some legal innovation. Many of his acts were rescinded by

himself; many were rejected by his successors; many have been

obliterated by time; but the number of sixteen Edicts, and one

hundred and sixty-eight Novels, 94 has been admitted into the

authentic body of the civil jurisprudence. In the opinion of a

philosopher superior to the prejudices of his profession, these

incessant, and, for the most part, trifling alterations, can be

only explained by the venal spirit of a prince, who sold without

shame his judgments and his laws. 95 The charge of the secret

historian is indeed explicit and vehement; but the sole instance,

which he produces, may be ascribed to the devotion as well as to

the avarice of Justinian. A wealthy bigot had bequeathed his

inheritance to the church of Emesa; and its value was enhanced by

the dexterity of an artist, who subscribed confessions of debt

and promises of payment with the names of the richest Syrians.

They pleaded the established prescription of thirty or forty

years; but their defence was overruled by a retrospective edict,

which extended the claims of the church to the term of a century;

an edict so pregnant with injustice and disorder, that, after

serving this occasional purpose, it was prudently abolished in

the same reign. 96 If candor will acquit the emperor himself, and

transfer the corruption to his wife and favorites, the suspicion

of so foul a vice must still degrade the majesty of his laws; and

the advocates of Justinian may acknowledge, that such levity,

whatsoever be the motive, is unworthy of a legislator and a man.

93 (return) [ Apud Homerum patrem omnis virtutis, (1st Praefat.

ad Pandect.) A line of Milton or Tasso would surprise us in an

act of parliament. Quae omnia obtinere sancimus in omne aevum. Of

the first Code, he says, (2d Praefat.,) in aeternum valiturum.

Man and forever!]

94 (return) [ Novellae is a classic adjective, but a barbarous

substantive, (Ludewig, p. 245.) Justinian never collected them

himself; the nine collations, the legal standard of modern

tribunals, consist of ninety-eight Novels; but the number was

increased by the diligence of Julian, Haloander, and Contius,

(Ludewig, p. 249, 258 Aleman. Not in Anecdot. p. 98.)]

95 (return) [ Montesquieu, Considerations sur la Grandeur et la

Decadence des Romains, c. 20, tom. iii. p. 501, in 4to. On this

occasion he throws aside the gown and cap of a President a

Mortier.]

96 (return) [ Procopius, Anecdot. c. 28. A similar privilege was

granted to the church of Rome, (Novel. ix.) For the general

repeal of these mischievous indulgences, see Novel. cxi. and

Edict. v.]

Monarchs seldom condescend to become the preceptors of their

subjects; and some praise is due to Justinian, by whose command

an ample system was reduced to a short and elementary treatise.

Among the various institutes of the Roman law, 97 those of Caius

98 were the most popular in the East and West; and their use may

be considered 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 incrusted with

the coarser materials of a degenerate age. The same volume which

introduced the youth of Rome, Constantinople, and Berytus, to the

gradual study of the Code and Pandects, is still precious to the

historian, the philosopher, and the magistrate. The Institutes of

Justinian are divided into four books: they proceed, with no

contemptible method, from, I. Persons, to, II. Things, and from

things, to, III. Actions; and the article IV., of Private Wrongs,

is terminated by the principles of Criminal Law. 9811

97 (return) [ Lactantius, in his Institutes of Christianity, an

elegant and specious work, proposes to imitate the title and

method of the civilians. Quidam prudentes et arbitri aequitatis

Institutiones Civilis Juris compositas ediderunt, (Institut.

Divin. l. i. c. 1.) Such as Ulpian, Paul, Florentinus, Marcian.]

98 (return) [ The emperor Justinian calls him suum, though he

died before the end of the second century. His Institutes are

quoted by Servius, Boethius, Priscian, &c.; and the Epitome by

Arrian is still extant. (See the Prolegomena and notes to the

edition of Schulting, in the Jurisprudentia Ante-Justinianea,

Lugd. Bat. 1717. Heineccius, Hist. J R No. 313. Ludewig, in Vit.

Just. p. 199.)]

9811 (return) [ Gibbon, dividing the Institutes into four parts,

considers the appendix of the criminal law in the last title as a

fourth part.—W.]

Chapter XLIV: Idea Of The Roman Jurisprudence.—Part V.

The distinction of ranks and persons is the firmest basis of a

mixed and limited government. In France, the remains of liberty

are kept alive by the spirit, the honors, and even the

prejudices, of fifty thousand nobles. 99 Two hundred families

9911 supply, in lineal descent, the second branch of English

legislature, which maintains, between the king and commons, the

balance of the constitution. A gradation of patricians and

plebeians, of strangers and subjects, has supported the

aristocracy of Genoa, Venice, and ancient Rome. The perfect

equality of men is the point in which the extremes of democracy

and despotism are confounded; since the majesty of the prince or

people would be offended, if any heads were exalted above the

level of their fellow-slaves or fellow-citizens. In the decline

of the Roman empire, the proud distinctions of the republic were

gradually abolished, and the reason or instinct of Justinian

completed the simple form of an absolute monarchy. The emperor

could not eradicate the popular reverence which always waits on

the possession of hereditary wealth, or the memory of famous

ancestors. He delighted to honor, with titles and emoluments, his

generals, magistrates, and senators; and his precarious

indulgence communicated some rays of their glory to the persons

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 inestimable character was degraded to an obsolete

and empty name. The voice of a Roman could no longer enact his

laws, or create the annual ministers of his power: his

constitutional rights might have checked the arbitrary will of a

master: and the bold adventurer from Germany or Arabia was

admitted, with equal favor, to the civil and military command,

which the citizen alone had been once entitled to assume over the

conquests of his fathers. The first Caesars had scrupulously

guarded the distinction of ingenuous and servile birth, which was

decided by the condition of the mother; and the candor of the

laws was satisfied, if her freedom could be ascertained, during a

single moment, between the conception and the delivery. The

slaves, 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 respected the rights of patrons; but his

indulgence removed the badge of disgrace from the two inferior

orders of freedmen; whoever ceased to be a slave, obtained,

without reserve or delay, the station of a citizen; and at length

the dignity of an ingenuous birth, which nature had refused, was

created, or supposed, by the omnipotence of the emperor. Whatever

restraints of age, or forms, or numbers, had been formerly

introduced to check the abuse of manumissions, and the too rapid

increase of vile and indigent Romans, he finally abolished; and

the spirit of his laws promoted the extinction of domestic

servitude. Yet the eastern provinces were filled, in the time of

Justinian, with multitudes of slaves, either born or purchased

for the use of their masters; and the price, from ten to seventy

pieces of gold, was determined by their age, their strength, and

their education. 100 But the hardships of this dependent state

were continually diminished by the influence of government and

religion: and the pride of a subject was no longer elated by his

absolute dominion over the life and happiness of his bondsman.

101

99 (return) [ See the Annales Politiques de l’Abbe de St. Pierre,

tom. i. p. 25 who dates in the year 1735. The most ancient

families claim the immemorial possession of arms and fiefs. Since

the Crusades, some, the most truly respectable, have been created

by the king, for merit and services. The recent and vulgar crowd

is derived from the multitude of venal offices without trust or

dignity, which continually ennoble the wealthy plebeians.]

9911 (return) [ Since the time of Gibbon, the House of Peers has

been more than doubled: it is above 400, exclusive of the

spiritual peers—a wise policy to increase the patrician order in

proportion to the general increase of the nation.—M.]

100 (return) [ If the option of a slave was bequeathed to several

legatees, they drew lots, and the losers were entitled to their

share of his value; ten pieces of gold for a common servant or

maid under ten years: if above that age, twenty; if they knew a

trade, thirty; notaries or writers, fifty; midwives or

physicians, sixty; eunuchs under ten years, thirty pieces; above,

fifty; if tradesmen, seventy, (Cod. l. vi. tit. xliii. leg. 3.)

These legal prices are generally below those of the market.]

101 (return) [ For the state of slaves and freedmen, see

Institutes, l. i. tit. iii.—viii. l. ii. tit. ix. l. iii. tit.

viii. ix. Pandects or Digest, l. i. tit. v. vi. l. xxxviii. tit.

i.—iv., and the whole of the xlth book. Code, l. vi. tit. iv. v.

l. vii. tit. i.—xxiii. Be it henceforward understood that, with

the original text of the Institutes and Pandects, the

correspondent articles in the Antiquities and Elements of

Heineccius are implicitly quoted; and with the xxvii. first books

of the Pandects, the learned and rational Commentaries of Gerard

Noodt, (Opera, tom. ii. p. 1—590, the end. Lugd. Bat. 1724.)]

The law of nature instructs most animals to cherish and educate

their infant progeny. The law of reason inculcates to the human

species the returns of filial piety. But the exclusive, absolute,

and perpetual dominion of the father over his children, is

peculiar to the Roman jurisprudence, 102 and seems to be coeval

with the foundation of the city. 103 The paternal power was

instituted or confirmed by Romulus himself; and, after the

practice of three centuries, it was inscribed on the fourth table

of the Decemvirs. In the forum, the senate, or the camp, the

adult son of a Roman citizen enjoyed the public and private

rights of a person: in his father’s house he was a mere thing;

1031 confounded by the laws with the movables, the cattle, and

the slaves, whom the capricious master might alienate or destroy,

without being responsible to any earthly tribunal. The hand which

bestowed the daily sustenance might resume the voluntary gift,

and whatever was acquired by the labor or fortune of the son was

immediately lost in the property of the father. His stolen goods

(his oxen or his children) might be recovered by the same action

of theft; 104 and if either had been guilty of a trespass, it was

in his own option to compensate the damage, or resign to the

injured party the obnoxious animal. At the call of indigence or

avarice, the master of a family could dispose of his children or

his slaves. But the condition of the slave was far more

advantageous, since he regained, by the first manumission, his

alienated freedom: the son was again restored to his unnatural

father; he might be condemned to servitude a second and a third

time, and it was not till after the third sale and deliverance,

105 that he was enfranchised from the domestic power which had

been so repeatedly abused. According to his discretion, a father

might chastise the real or imaginary faults of his children, by

stripes, by imprisonment, by exile, by sending them to the

country to work in chains among the meanest of his servants. The

majesty of a parent was armed with the power of life and death;

106 and the examples of such bloody executions, which were

sometimes praised and never punished, may be traced in the annals

of Rome beyond the times of Pompey and Augustus. Neither age, nor

rank, nor the consular office, nor the honors of a triumph, could

exempt the most illustrious citizen from the bonds of filial

subjection: 107 his own descendants were included in the family

of their common ancestor; and the claims of adoption were not

less sacred or less rigorous than those of nature. Without fear,

though not without danger of abuse, the Roman legislators had

reposed an unbounded confidence in the sentiments of paternal

love; and the oppression was tempered by the assurance that each

generation must succeed in its turn to the awful dignity of

parent and master.

102 (return) [ See the patria potestas in the Institutes, (l. i.

tit. ix.,) the Pandects, (l. i. tit. vi. vii.,) and the Code, (l.

viii. tit. xlvii. xlviii. xlix.) Jus potestatis quod in liberos

habemus proprium est civium Romanorum. Nulli enim alii sunt

homines, qui talem in liberos habeant potestatem qualem nos

habemus. * Note: The newly-discovered Institutes of Gaius name

one nation in which the same power was vested in the parent. Nec

me praeterit Galatarum gentem credere, in potestate parentum

liberos esse. Gaii Instit. edit. 1824, p. 257.—M.]

103 (return) [ Dionysius Hal. l. ii. p. 94, 95. Gravina (Opp. p.

286) produces the words of the xii. tables. Papinian (in

Collatione Legum Roman et Mosaicarum, tit. iv. p. 204) styles

this patria potestas, lex regia: Ulpian (ad Sabin. l. xxvi. in

Pandect. l. i. tit. vi. leg. 8) says, jus potestatis moribus

receptum; and furiosus filium in potestate habebit How sacred—or

rather, how absurd! * Note: All this is in strict accordance with

the Roman character.—W.]

1031 (return) [ This parental power was strictly confined to the

Roman citizen. The foreigner, or he who had only jus Latii, did

not possess it. If a Roman citizen unknowingly married a Latin or

a foreign wife, he did not possess this power over his son,

because the son, following the legal condition of the mother, was

not a Roman citizen. A man, however, alleging sufficient cause

for his ignorance, might raise both mother and child to the

rights of citizenship. Gaius. p. 30.—M.]

104 (return) [ Pandect. l. xlvii. tit. ii. leg. 14, No. 13, leg.

38, No. 1. Such was the decision of Ulpian and Paul.]

105 (return) [ The trina mancipatio is most clearly defined by

Ulpian, (Fragment. x. p. 591, 592, edit. Schulting;) and best

illustrated in the Antiquities of Heineccius. * Note: The son of

a family sold by his father did not become in every respect a

slave, he was statu liber; that is to say, on paying the price

for which he was sold, he became entirely free. See Hugo, Hist.