were Belisarius the Thracian and Narses the Armenian. Africa was
wrested from the Vandals; Italy from the successors of Theodoric;
and much of Spain from the Western Goths. Under Justinian the
Byzantine or Eastern Empire resumed much of the majesty and power
of ancient Rome. But the crowning glory of his career was the
Code. One of the greatest historians says of his reign: "Its most
instructive lesson has been drawn from the influence which its
legislation has exercised on foreign nations. The unerring instinct
of mankind has fixed on this period as one of the greatest eras in
man's annals."
The Code was a digest of the whole mass of Roman law literature,
compiled and annotated at the command of Justinian, under the
supervision of the great lawyer Tribonian, who, with his helpers,
reduced the chaotic mass to a logical system containing the essence
of Roman law. The first part of the _Codex Constitutionem_,
prepared in less than a year, was published in April, 529. The
second part, the _Digest_ or _Pandects,_ appeared in December, 533.
To insure conformity, both were revised and issued in November,
534, the Institutiones, an _elementary_ text-book, founded on the
_Institutiones_ of Gaius, who lived A.D. 110-180, being added, and
the whole, as a complete body of law, given to the law schools at
Constantinople, Rome, Alexandria, Berytus, and Cæsarea, for use in
their graduate course. Later the _Novellæ Constitutione_, or
_Novels,_ most of them in Greek, comprising statutes of Justinian
arranged chronologically, completed the Code.
Forgotten or ignored during the lawless days of the Dark Ages, an
entire copy of this famous code was discovered when Amalphi was
taken by the Pisans in 1137. Its publication immediately attracted
the attention of the learned world. Gratian, a monk of Bologna,
compiled a digest of the canon law on the model of that work, and
soon afterward, incorporating with his writings the collections of
prior authors, gave his "decretum" to the public in 1151. From that
time the two codes, the civil and canon laws, were deemed the
principal repositories of legal knowledge, and the study of each
was considered necessary to throw light on the other.
Justinian's example in the codification of laws was followed by
almost every European nation after the eighteenth century; the Code
Napoleon (1803-04), regulating all that pertains "to the civil
rights of citizens and of property," being the most brilliant
parallel to the Justinian Code. The reader familiar with the life
of Napoleon will recall that all of his historians quote his
frequent allusion to the Code Napoleon as the one great work which
would be a living monument of his career, when the glory of all his
other achievements would be dimmed by time or forgotten.
Gibbon's examination of the Justinian Code is justly regarded as
one of the most important features of the historian's great work,
and in several of the leading universities of Europe has long been
used as a text-work on civil law.
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 prætorian prefects he raised himself to the honors
of quæstor, 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 virtues 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 quæstor 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
has 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.
If Cæsar 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 legislators 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 afterward 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 re-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 in 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 Cæsars 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 Scævolas, 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 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, 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 subtlety 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
accomplishment 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 hundredfold their present value. Copies were slowly
multiplied and cautiously renewed: the hopes of profit tempted the
sacrilegious scribes to erase the characters of antiquity,[26] 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 prætorian
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 successfully transported by the accidents of war and
commerce to Amalphi, Pisa, and Florence,[27] and is now deposited as a
sacred relic in the ancient palace of the republic.[28]
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, 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_ 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.
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 those of Caius 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
were 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 (1), _Persons_, to (2) _Things_, and from
things to (3) _Actions_; and the Article IV of _Private Wrongs_ is
terminated by the principles of _Criminal Law_.[29]
I. The distinction of ranks and _persons_ is the firmest basis of a
mixed and limited government. 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 Cæsars
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. 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.
The law of nature instructs most animals to cherish and educate their
infant progeny. The law of reason inculcates to the human species the
return of filial piety. But the exclusive, absolute, and perpetual
dominion of the father over his children is peculiar to the Roman
jurisprudence and seems to be coeval with the foundation of the city.
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_;[30] 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; 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.