91 (return) [ Thucydides (c. 51) affirms, that the infection

could only be once taken; but Evagrius, who had family experience

of the plague, observes, that some persons, who had escaped the

first, sunk under the second attack; and this repetition is

confirmed by Fabius Paullinus, (p. 588.) I observe, that on this

head physicians are divided; and the nature and operation of the

disease may not always be similar.]

92 (return) [ It was thus that Socrates had been saved by his

temperance, in the plague of Athens, (Aul. Gellius, Noct. Attic.

ii. l.) Dr. Mead accounts for the peculiar salubrity of religious

houses, by the two advantages of seclusion and abstinence, (p.

18, 19.)]

Contagion is the inseparable symptom of the plague; which, by

mutual respiration, is transfused from the infected persons to

the lungs and stomach of those who approach them. While

philosophers believe and tremble, it is singular, that the

existence of a real danger should have been denied by a people

most prone to vain and imaginary terrors. 93 Yet the

fellow-citizens of Procopius were satisfied, by some short and

partial experience, that the infection could not be gained by the

closest conversation: 94 and this persuasion might support the

assiduity of friends or physicians in the care of the sick, whom

inhuman prudence would have condemned to solitude and despair.

But the fatal security, like the predestination of the Turks,

must have aided the progress of the contagion; and those salutary

precautions to which Europe is indebted for her safety, were

unknown to the government of Justinian. No restraints were

imposed on the free and frequent intercourse of the Roman

provinces: from Persia to France, the nations were mingled and

infected by wars and emigrations; and the pestilential odor which

lurks for years in a bale of cotton was imported, by the abuse of

trade, into the most distant regions. The mode of its propagation

is explained by the remark of Procopius himself, that it always

spread from the sea-coast to the inland country: the most

sequestered islands and mountains were successively visited; the

places which had escaped the fury of its first passage were alone

exposed to the contagion of the ensuing year. The winds might

diffuse that subtile venom; but unless the atmosphere be

previously disposed for its reception, the plague would soon

expire in the cold or temperate climates of the earth. Such was

the universal corruption of the air, that the pestilence which

burst forth in the fifteenth year of Justinian was not checked or

alleviated by any difference of the seasons. In time, its first

malignity was abated and dispersed; the disease alternately

languished and revived; but it was not till the end of a

calamitous period of fifty-two years, that mankind recovered

their health, or the air resumed its pure and salubrious quality.

No facts have been preserved to sustain an account, or even a

conjecture, of the numbers that perished in this extraordinary

mortality. I only find, that during three months, five, and at

length ten, thousand persons died each day at Constantinople;

that many cities of the East were left vacant, and that in

several districts of Italy the harvest and the vintage withered

on the ground. The triple scourge of war, pestilence, and famine,

afflicted the subjects of Justinian; and his reign is disgraced

by the visible decrease of the human species, which has never

been repaired in some of the fairest countries of the globe. 95

93 (return) [ Mead proves that the plague is contagious from

Thucydides, Lacretius, Aristotle, Galen, and common experience,

(p. 10—20;) and he refutes (Preface, p. 2—13) the contrary

opinion of the French physicians who visited Marseilles in the

year 1720. Yet these were the recent and enlightened spectators

of a plague which, in a few months, swept away 50,000 inhabitants

(sur le Peste de Marseille, Paris, 1786) of a city that, in the

present hour of prosperity and trade contains no more then 90,000

souls, (Necker, sur les Finances, tom. i. p. 231.)]

94 (return) [ The strong assertions of Procopius are overthrown

by the subsequent experience of Evagrius.]

95 (return) [ After some figures of rhetoric, the sands of the

sea, &c., Procopius (Anecdot. c. 18) attempts a more definite

account; that it had been exterminated under the reign of the

Imperial demon. The expression is obscure in grammar and

arithmetic and a literal interpretation would produce several

millions of millions Alemannus (p. 80) and Cousin (tom. iii. p.

178) translate this passage, “two hundred millions:” but I am

ignorant of their motives. The remaining myriad of myriads, would

furnish one hundred millions, a number not wholly inadmissible.]

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

Idea Of The Roman Jurisprudence.—The Laws Of The Kings—The Twelve Of

The Decemvirs.—The Laws Of The People.—The Decrees Of The Senate.—The

Edicts Of The Magistrates And Emperors—Authority Of The

Civilians.—Code, Pandects, Novels, And Institutes Of Justinian:—I.

Rights Of Persons.—II. Rights Of Things.—III. Private Injuries And

Actions.—IV. Crimes And Punishments.

Note: In the notes to this important chapter, which is received

as the text-book on Civil Law in some of the foreign

universities, I have consulted,

I. the newly-discovered Institutes of Gaius, (Gaii Institutiones,

ed. Goeschen, Berlin, 1824,) with some other fragments of the

Roman law, (Codicis Theodosiani Fragmenta inedita, ab Amadeo

Peyron. Turin, 1824.)

II. The History of the Roman Law, by Professor Hugo, in the

French translation of M. Jourdan. Paris, 1825.

III. Savigny, Geschichte des Romischen Rechts im Mittelalter, 6

bande, Heidelberg, 1815.

IV. Walther, Romische Rechts-Geschichte, Bonn. 1834. But I am

particularly indebted to an edition of the French translation of

this chapter, with additional notes, by one of the most learned

civilians of Europe, Professor Warnkonig, published at Liege,

1821. I have inserted almost the whole of these notes, which are

distinguished by the letter W.—M. The vain titles of the

victories of Justinian are crumbled into dust; but the name of

the legislator is inscribed on a fair and everlasting monument.

Under his reign, and by his care, the civil jurisprudence was

digested in the immortal works of the Code, the Pandects, and the

Institutes: 1 the public reason of the Romans has been silently

or studiously transfused into the domestic institutions of

Europe, 2, and the laws of Justinian still command the respect or

obedience of independent nations. Wise or fortunate is the prince

who connects his own reputation with the honor or interest of a

perpetual order of men. The defence of their founder is the first

cause, which in every age has exercised the zeal and industry of

the civilians. They piously commemorate his virtues; dissemble or

deny his failings; and fiercely chastise the guilt or folly of

the rebels, who presume to sully the majesty of the purple. The

idolatry of love has provoked, as it usually happens, the rancor

of opposition; the character of Justinian has been exposed to the

blind vehemence of flattery and invective; and the injustice of a

sect (the Anti-Tribonians,) has refused all praise and merit to

the prince, his ministers, and his laws. 3 Attached to no party,

interested only for the truth and candor of history, and directed

by the most temperate and skilful guides, 4 I enter with just

diffidence on the subject of civil law, which has exhausted so

many learned lives, and clothed the walls of such spacious

libraries. In a single, if possible in a short, chapter, I shall

trace the Roman jurisprudence from Romulus to Justinian, 5

appreciate the labors of that emperor, and pause to contemplate

the principles of a science so important to the peace and

happiness of society. The laws of a nation form the most

instructive portion of its history; and although I have devoted

myself to write the annals of a declining monarchy, I shall

embrace the occasion to breathe the pure and invigorating air of

the republic.

1 (return) [ The civilians of the darker ages have established an

absurd and incomprehensible mode of quotation, which is supported

by authority and custom. In their references to the Code, the

Pandects, and the Institutes, they mention the number, not of the

book, but only of the law; and content themselves with reciting

the first words of the title to which it belongs; and of these

titles there are more than a thousand. Ludewig (Vit. Justiniani,

p. 268) wishes to shake off this pendantic yoke; and I have dared

to adopt the simple and rational method of numbering the book,

the title, and the law. Note: The example of Gibbon has been

followed by M Hugo and other civilians.—M]

2 (return) [ Germany, Bohemia, Hungary, Poland, and Scotland,

have received them as common law or reason; in France, Italy,

&c., they possess a direct or indirect influence; and they were

respected in England, from Stephen to Edward I. our national

Justinian, (Duck. de Usu et Auctoritate Juris Civilis, l. ii. c.

1, 8—15. Heineccius, Hist. Juris Germanici, c. 3, 4, No. 55-124,

and the legal historians of each country.) * Note: Although the

restoration of the Roman law, introduced by the revival of this

study in Italy, is one of the most important branches of history,

it had been treated but imperfectly when Gibbon wrote his work.

That of Arthur Duck is but an insignificant performance. But the

researches of the learned have thrown much light upon the matter.

The Sarti, the Tiraboschi, the Fantuzzi, the Savioli, had made

some very interesting inquiries; but it was reserved for M. de

Savigny, in a work entitled “The History of the Roman Law during

the Middle Ages,” to cast the strongest right on this part of

history. He demonstrates incontestably the preservation of the

Roman law from Justinian to the time of the Glossators, who by

their indefatigable zeal, propagated the study of the Roman

jurisprudence in all the countries of Europe. It is much to be

desired that the author should continue this interesting work,

and that the learned should engage in the inquiry in what manner

the Roman law introduced itself into their respective countries,

and the authority which it progressively acquired. For Belgium,

there exists, on this subject, (proposed by the Academy of

Brussels in 1781,) a Collection of Memoirs, printed at Brussels

in 4to., 1783, among which should be distinguished those of M. de

Berg. M. Berriat Saint Prix has given us hopes of the speedy

appearance of a work in which he will discuss this question,

especially in relation to France. M. Spangenberg, in his

Introduction to the Study of the Corpus Juris Civilis Hanover,

1817, 1 vol. 8vo. p. 86, 116, gives us a general sketch of the

history of the Roman law in different parts of Europe. We cannot

avoid mentioning an elementary work by M. Hugo, in which he

treats of the History of the Roman Law from Justinian to the

present Time, 2d edit. Berlin 1818 W.]

3 (return) [ Francis Hottoman, a learned and acute lawyer of the

xvith century, wished to mortify Cujacius, and to please the

Chancellor de l’Hopital. His Anti-Tribonianus (which I have never

been able to procure) was published in French in 1609; and his

sect was propagated in Germany, (Heineccius, Op. tom. iii.

sylloge iii. p. 171—183.) * Note: Though there have always been

many detractors of the Roman law, no sect of Anti-Tribonians has

ever existed under that name, as Gibbon seems to suppose.—W.]

4 (return) [ At the head of these guides I shall respectfully

place the learned and perspicuous Heineccius, a German professor,

who died at Halle in the year 1741, (see his Eloge in the

Nouvelle Bibliotheque Germanique, tom. ii. p. 51—64.) His ample

works have been collected in eight volumes in 4to. Geneva,

1743-1748. The treatises which I have separately used are, 1.

Historia Juris Romani et Germanici, Lugd. Batav. 1740, in 8 vo.

2. Syntagma Antiquitatum Romanam Jurisprudentiam illustrantium, 2

vols. in 8 vo. Traject. ad Rhenum. 3. Elementa Juris Civilis

secundum Ordinem Institutionum, Lugd. Bat. 1751, in 8 vo. 4.

Elementa J. C. secundum Ordinem Pandectarum Traject. 1772, in

8vo. 2 vols. * Note: Our author, who was not a lawyer, was

necessarily obliged to content himself with following the

opinions of those writers who were then of the greatest

authority; but as Heineccius, notwithstanding his high reputation

for the study of the Roman law, knew nothing of the subject on

which he treated, but what he had learned from the compilations

of various authors, it happened that, in following the sometimes

rash opinions of these guides, Gibbon has fallen into many

errors, which we shall endeavor in succession to correct. The

work of Bach on the History of the Roman Jurisprudence, with

which Gibbon was not acquainted, is far superior to that of

Heineccius and since that time we have new obligations to the

modern historic civilians, whose indefatigable researches have

greatly enlarged the sphere of our knowledge in this important

branch of history. We want a pen like that of Gibbon to give to

the more accurate notions which we have acquired since his time,

the brilliancy, the vigor, and the animation which Gibbon has

bestowed on the opinions of Heineccius and his contemporaries.—W]

5 (return) [ Our original text is a fragment de Origine Juris

(Pandect. l. i. tit. ii.) of Pomponius, a Roman lawyer, who lived

under the Antonines, (Heinecc. tom. iii. syl. iii. p. 66—126.) It

has been abridged, and probably corrupted, by Tribonian, and

since restored by Bynkershoek (Opp. tom. i. p. 279—304.)]

The primitive government of Rome 6 was composed, with some

political skill, of an elective king, a council of nobles, and a

general assembly of the people. War and religion were

administered by the supreme magistrate; and he alone proposed the

laws, which were debated in the senate, and finally ratified or

rejected by a majority of votes in the thirty curiae or parishes

of the city. Romulus, Numa, and Servius Tullius, are celebrated

as the most ancient legislators; and each of them claims his

peculiar part in the threefold division of jurisprudence. 7 The

laws of marriage, the education of children, and the authority of

parents, which may seem to draw their origin from nature itself,

are ascribed to the untutored wisdom of Romulus. The law of

nations and of religious worship, which Numa introduced, was

derived from his nocturnal converse with the nymph Egeria. The

civil law is attributed to the experience of Servius: he balanced

the rights and fortunes of the seven classes of citizens; and

guarded, by fifty new regulations, the observance of contracts

and the punishment of crimes. The state, which he had inclined

towards a democracy, was changed by the last Tarquin into a

lawless despotism; and when the kingly office was abolished, the

patricians engrossed the benefits of freedom. The royal laws

became odious or obsolete; the mysterious deposit was silently

preserved by the priests and nobles; and at the end of sixty

years, the citizens of Rome still complained that they were ruled

by the arbitrary sentence of the magistrates. Yet the positive

institutions of the kings had blended themselves with the public

and private manners of the city, some fragments of that venerable

jurisprudence 8 were compiled by the diligence of antiquarians, 9

and above twenty texts still speak the rudeness of the Pelasgic

idiom of the Latins. 10

6 (return) [ The constitutional history of the kings of Rome may

be studied in the first book of Livy, and more copiously in

Dionysius Halicarnassensis, (l. li. p. 80—96, 119—130, l. iv. p.

198—220,) who sometimes betrays the character of a rhetorician

and a Greek. * Note: M. Warnkonig refers to the work of Beaufort,

on the Uncertainty of the Five First Ages of the Roman History,

with which Gibbon was probably acquainted, to Niebuhr, and to the

less known volume of Wachsmuth, “Aeltere Geschichte des Rom.

Staats.” To these I would add A. W. Schlegel’s Review of Niebuhr,

and my friend Dr. Arnold’s recently published volume, of which

the chapter on the Law of the XII. Tables appears to me one of

the most valuable, if not the most valuable, chapter.—M.]

7 (return) [ This threefold division of the law was applied to

the three Roman kings by Justus Lipsius, (Opp. tom. iv. p. 279;)

is adopted by Gravina, (Origines Juris Civilis, p. 28, edit.

Lips. 1737:) and is reluctantly admitted by Mascou, his German

editor. * Note: Whoever is acquainted with the real notions of

the Romans on the jus naturale, gentium et civile, cannot but

disapprove of this explanation which has no relation to them, and

might be taken for a pleasantry. It is certainly unnecessary to

increase the confusion which already prevails among modern

writers on the true sense of these ideas. Hugo.—W]

8 (return) [ The most ancient Code or Digest was styled Jus

Papirianum, from the first compiler, Papirius, who flourished

somewhat before or after the Regifugium, (Pandect. l. i. tit.

ii.) The best judicial critics, even Bynkershoek (tom. i. p. 284,

285) and Heineccius, (Hist. J. C. R. l. i. c. 16, 17, and Opp.

tom. iii. sylloge iv. p. 1—8,) give credit to this tale of

Pomponius, without sufficiently adverting to the value and rarity

of such a monument of the third century, of the illiterate city.

I much suspect that the Caius Papirius, the Pontifex Maximus, who

revived the laws of Numa (Dionys. Hal. l. iii. p. 171) left only

an oral tradition; and that the Jus Papirianum of Granius Flaccus

(Pandect. l. L. tit. xvi. leg. 144) was not a commentary, but an

original work, compiled in the time of Caesar, (Censorin. de Die

Natali, l. iii. p. 13, Duker de Latinitate J. C. p. 154.) Note:

Niebuhr considers the Jus Papirianum, adduced by Verrius Fiaccus,

to be of undoubted authenticity. Rom. Geschichte, l. 257.—M.

Compare this with the work of M. Hugo.—W.]

9 (return) [ A pompous, though feeble attempt to restore the

original, is made in the Histoire de la Jurisprudence Romaine of

Terasson, p. 22—72, Paris, 1750, in folio; a work of more promise

than performance.]

10 (return) [ In the year 1444, seven or eight tables of brass

were dug up between Cortona and Gubio. A part of these (for the

rest is Etruscan) represents the primitive state of the Pelasgic

letters and language, which are ascribed by Herodotus to that

district of Italy, (l. i. c. 56, 57, 58;) though this difficult

passage may be explained of a Crestona in Thrace, (Notes de

Larcher, tom. i. p. 256—261.) The savage dialect of the Eugubine

tables has exercised, and may still elude, the divination of

criticism; but the root is undoubtedly Latin, of the same age and

character as the Saliare Carmen, which, in the time of Horace,

none could understand. The Roman idiom, by an infusion of Doric

and Aeolic Greek, was gradually ripened into the style of the

xii. tables, of the Duillian column, of Ennius, of Terence, and

of Cicero, (Gruter. Inscript. tom. i. p. cxlii. Scipion Maffei,

Istoria Diplomatica, p. 241—258. Bibliotheque Italique, tom. iii.

p. 30—41, 174—205. tom. xiv. p. 1—52.) * Note: The Eugubine

Tables have exercised the ingenuity of the Italian and German

critics; it seems admitted (O. Muller, die Etrusker, ii. 313)

that they are Tuscan. See the works of Lanzi, Passeri, Dempster,

and O. Muller.—M]

I shall not repeat the well-known story of the Decemvirs, 11 who

sullied by their actions the honor of inscribing on brass, or

wood, or ivory, the Twelve Tables of the Roman laws. 12 They were

dictated by the rigid and jealous spirit of an aristocracy, which

had yielded with reluctance to the just demands of the people.

But the substance of the Twelve Tables was adapted to the state

of the city; and the Romans had emerged from Barbarism, since

they were capable of studying and embracing the institutions of

their more enlightened neighbors. 1211 A wise Ephesian was driven

by envy from his native country: before he could reach the shores

of Latium, he had observed the various forms of human nature and

civil society: he imparted his knowledge to the legislators of

Rome, and a statue was erected in the forum to the perpetual

memory of Hermodorus. 13 The names and divisions of the copper

money, the sole coin of the infant state, were of Dorian origin:

14 the harvests of Campania and Sicily relieved the wants of a

people whose agriculture was often interrupted by war and

faction; and since the trade was established, 15 the deputies who

sailed from the Tyber might return from the same harbors with a

more precious cargo of political wisdom. The colonies of Great

Greece had transported and improved the arts of their mother

country. Cumae and Rhegium, Crotona and Tarentum, Agrigentum and

Syracuse, were in the rank of the most flourishing cities. The

disciples of Pythagoras applied philosophy to the use of

government; the unwritten laws of Charondas accepted the aid of

poetry and music, 16 and Zaleucus framed the republic of the

Locrians, which stood without alteration above two hundred years.

17 From a similar motive of national pride, both Livy and

Dionysius are willing to believe, that the deputies of Rome

visited Athens under the wise and splendid administration of

Pericles; and the laws of Solon were transfused into the twelve

tables. If such an embassy had indeed been received from the

Barbarians of Hesperia, the Roman name would have been familiar

to the Greeks before the reign of Alexander; 18 and the faintest

evidence would have been explored and celebrated by the curiosity

of succeeding times. But the Athenian monuments are silent; nor

will it seem credible that the patricians should undertake a long

and perilous navigation to copy the purest model of democracy. In

the comparison of the tables of Solon with those of the

Decemvirs, some casual resemblance may be found; some rules which

nature and reason have revealed to every society; some proofs of

a common descent from Egypt or Phoenicia. 19 But in all the great

lines of public and private jurisprudence, the legislators of

Rome and Athens appear to be strangers or adverse at each other.

11 (return) [ Compare Livy (l. iii. c. 31—59) with Dionysius

Halicarnassensis, (l. x. p. 644—xi. p. 691.) How concise and

animated is the Roman—how prolix and lifeless the Greek! Yet he

has admirably judged the masters, and defined the rules, of

historical composition.]

12 (return) [ From the historians, Heineccius (Hist. J. R. l. i.

No. 26) maintains that the twelve tables were of brass—aereas; in

the text of Pomponius we read eboreas; for which Scaliger has

substituted roboreas, (Bynkershoek, p. 286.) Wood, brass, and

ivory, might be successively employed. Note: Compare Niebuhr,

vol. ii. p. 349, &c.—M.]

1211 (return) [ Compare Niebuhr, 355, note 720.—M. It is a most

important question whether the twelve tables in fact include laws

imported from Greece. The negative opinion maintained by our

author, is now almost universally adopted, particularly by Mm.

Niebuhr, Hugo, and others. See my Institutiones Juris Romani

privati Leodii, 1819, p. 311, 312.—W. Dr. Arnold, p. 255, seems

to incline to the opposite opinion. Compare some just and

sensible observations in the Appendix to Mr. Travers Twiss’s

Epitome of Niebuhr, p. 347, Oxford, 1836.—M.]

13 (return) [ His exile is mentioned by Cicero, (Tusculan.

Quaestion. v. 36; his statue by Pliny, (Hist. Nat. xxxiv. 11.)

The letter, dream, and prophecy of Heraclitus, are alike

spurious, (Epistolae Graec. Divers. p. 337.) * Note: Compare

Niebuhr, ii. 209.—M. See the Mem de l’Academ. des Inscript. xxii.

p. 48. It would be difficult to disprove, that a certain

Hermodorus had some share in framing the Laws of the Twelve

Tables. Pomponius even says that this Hermodorus was the author

of the last two tables. Pliny calls him the Interpreter of the

Decemvirs, which may lead us to suppose that he labored with them

in drawing up that law. But it is astonishing that in his

Dissertation, (De Hermodoro vero XII. Tabularum Auctore, Annales

Academiae Groninganae anni 1817, 1818,) M. Gratama has ventured

to advance two propositions entirely devoid of proof: “Decem

priores tabulas ab ipsis Romanis non esse profectas, tota

confirma Decemviratus Historia,” et “Hermodorum legum

decemviralium ceri nominis auctorem esse, qui eas composuerit

suis ordinibus, disposuerit, suaque fecerit auctoritate, ut a

decemviris reciperentur.” This truly was an age in which the

Roman Patricians would allow their laws to be dictated by a

foreign Exile! Mr. Gratama does not attempt to prove the

authenticity of the supposititious letter of Heraclitus. He

contents himself with expressing his astonishment that M. Bonamy

(as well as Gibbon) will be receive it as genuine.—W.]

14 (return) [ This intricate subject of the Sicilian and Roman

money, is ably discussed by Dr. Bentley, (Dissertation on the

Epistles of Phalaris, p. 427—479,) whose powers in this

controversy were called forth by honor and resentment.]

15 (return) [ The Romans, or their allies, sailed as far as the

fair promontory of Africa, (Polyb. l. iii. p. 177, edit.

Casaubon, in folio.) Their voyages to Cumae, &c., are noticed by

Livy and Dionysius.]

16 (return) [ This circumstance would alone prove the antiquity

of Charondas, the legislator of Rhegium and Catana, who, by a

strange error of Diodorus Siculus (tom. i. l. xii. p. 485—492) is

celebrated long afterwards as the author of the policy of

Thurium.]

17 (return) [ Zaleucus, whose existence has been rashly attacked,

had the merit and glory of converting a band of outlaws (the

Locrians) into the most virtuous and orderly of the Greek

republics. (See two Memoirs of the Baron de St. Croix, sur la

Legislation de la Grande Grece Mem. de l’Academie, tom. xlii. p.

276—333.) But the laws of Zaleucus and Charondas, which imposed

on Diodorus and Stobaeus, are the spurious composition of a

Pythagorean sophist, whose fraud has been detected by the

critical sagacity of Bentley, p. 335—377.]

18 (return) [ I seize the opportunity of tracing the progress of

this national intercourse 1. Herodotus and Thucydides (A. U. C.

300—350) appear ignorant of the name and existence of Rome,

(Joseph. contra Appion tom. ii. l. i. c. 12, p. 444, edit.

Havercamp.) 2. Theopompus (A. U. C. 400, Plin. iii. 9) mentions

the invasion of the Gauls, which is noticed in looser terms by

Heraclides Ponticus, (Plutarch in Camillo, p. 292, edit. H.

Stephan.) 3. The real or fabulous embassy of the Romans to

Alexander (A. U. C. 430) is attested by Clitarchus, (Plin. iii.

9,) by Aristus and Asclepiades, (Arrian. l. vii. p. 294, 295,)

and by Memnon of Heraclea, (apud Photium, cod. ccxxiv. p. 725,)

though tacitly denied by Livy. 4. Theophrastus (A. U. C. 440)

primus externorum aliqua de Romanis diligentius scripsit, (Plin.

iii. 9.) 5. Lycophron (A. U. C. 480—500) scattered the first seed

of a Trojan colony and the fable of the Aeneid, (Cassandra,

1226—1280.) A bold prediction before the end of the first Punic

war! * Note: Compare Niebuhr throughout. Niebuhr has written a

dissertation (Kleine Schriften, i. p. 438,) arguing from this

prediction, and on the other conclusive grounds, that the

Lycophron, the author of the Cassandra, is not the Alexandrian

poet. He had been anticipated in this sagacious criticism, as he

afterwards discovered, by a writer of no less distinction than

Charles James Fox.—Letters to Wakefield. And likewise by the

author of the extraordinary translation of this poem, that most

promising scholar, Lord Royston. See the Remains of Lord Royston,

by the Rev. Henry Pepys, London, 1838.]

19 (return) [ The tenth table, de modo sepulturae, was borrowed

from Solon, (Cicero de Legibus, ii. 23—26:) the furtem per lancem

et licium conceptum, is derived by Heineccius from the manners of

Athens, (Antiquitat. Rom. tom. ii. p. 167—175.) The right of

killing a nocturnal thief was declared by Moses, Solon, and the

Decemvirs, (Exodus xxii. 3. Demosthenes contra Timocratem, tom.

i. p. 736, edit. Reiske. Macrob. Saturnalia, l. i. c. 4. Collatio

Legum Mosaicarum et Romanatum, tit, vii. No. i. p. 218, edit.

Cannegieter.) *Note: Are not the same points of similarity

discovered in the legislation of all actions in the infancy of

their civilization?—W.]

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

Whatever might be the origin or the merit of the twelve tables,

20 they obtained among the Romans that blind and partial

reverence which the lawyers of every country delight to bestow on

their municipal institutions. The study is recommended by Cicero

21 as equally pleasant and instructive. “They amuse the mind by

the remembrance of old words and the portrait of ancient manners;

they inculcate the soundest principles of government and morals;

and I am not afraid to affirm, that the brief composition of the

Decemvirs surpasses in genuine value the libraries of Grecian

philosophy. How admirable,” says Tully, with honest or affected

prejudice, “is the wisdom of our ancestors! We alone are the

masters of civil prudence, and our superiority is the more

conspicuous, if we deign to cast our eyes on the rude and almost

ridiculous jurisprudence of Draco, of Solon, and of Lycurgus.”

The twelve tables were committed to the memory of the young and

the meditation of the old; they were transcribed and illustrated

with learned diligence; they had escaped the flames of the Gauls,

they subsisted in the age of Justinian, and their subsequent loss

has been imperfectly restored by the labors of modern critics. 22

But although these venerable monuments were considered as the

rule of right and the fountain of justice, 23 they were

overwhelmed by the weight and variety of new laws, which, at the

end of five centuries, became a grievance more intolerable than

the vices of the city. 24 Three thousand brass plates, the acts

of the senate of the people, were deposited in the Capitol: 25

and some of the acts, as the Julian law against extortion,

surpassed the number of a hundred chapters. 26 The Decemvirs had

neglected to import the sanction of Zaleucus, which so long

maintained the integrity of his republic. A Locrian, who proposed

any new law, stood forth in the assembly of the people with a

cord round his neck, and if the law was rejected, the innovator

was instantly strangled.

20 (return) [ It is the praise of Diodorus, (tom. i. l. xii. p.

494,) which may be fairly translated by the eleganti atque

absoluta brevitate verborum of Aulus Gellius, (Noct. Attic. xxi.

1.)]

21 (return) [ Listen to Cicero (de Legibus, ii. 23) and his

representative Crassus, (de Oratore, i. 43, 44.)]

22 (return) [ See Heineccius, (Hist. J. R. No. 29—33.) I have

followed the restoration of the xii. tables by Gravina (Origines

J. C. p. 280—307) and Terrasson, (Hist. de la Jurisprudence

Romaine, p. 94—205.) Note: The wish expressed by Warnkonig, that

the text and the conjectural emendations on the fragments of the

xii. tables should be submitted to rigid criticism, has been

fulfilled by Dirksen, Uebersicht der bisherigen Versuche Leipzig

Kritik und Herstellung des Textes der Zwolf-Tafel-Fragmente,

Leipzug, 1824.—M.]

23 (return) [ Finis aequi juris, (Tacit. Annal. iii. 27.) Fons

omnis publici et privati juris, (T. Liv. iii. 34.) * Note: From

the context of the phrase in Tacitus, “Nam secutae leges etsi

alquando in maleficos ex delicto; saepius tamen dissensione

ordinum * * * latae sunt,” it is clear that Gibbon has rendered

this sentence incorrectly. Hugo, Hist. p. 62.—M.]

24 (return) [ De principiis juris, et quibus modis ad hanc

multitudinem infinitam ac varietatem legum perventum sit altius

disseram, (Tacit. Annal. iii. 25.) This deep disquisition fills

only two pages, but they are the pages of Tacitus. With equal

sense, but with less energy, Livy (iii. 34) had complained, in

hoc immenso aliarum super alias acervatarum legum cumulo, &c.]

25 (return) [ Suetonius in Vespasiano, c. 8.]

26 (return) [ Cicero ad Familiares, viii. 8.]

The Decemvirs had been named, and their tables were approved, by

an assembly of the centuries, in which riches preponderated

against numbers. To the first class of Romans, the proprietors of

one hundred thousand pounds of copper, 27 ninety-eight votes were

assigned, and only ninety-five were left for the six inferior

classes, distributed according to their substance by the artful

policy of Servius. But the tribunes soon established a more

specious and popular maxim, that every citizen has an equal right

to enact the laws which he is bound to obey. Instead of the

centuries, they convened the tribes; and the patricians, after an

impotent struggle, submitted to the decrees of an assembly, in

which their votes were confounded with those of the meanest

plebeians. Yet as long as the tribes successively passed over

narrow bridges 28 and gave their voices aloud, the conduct of

each citizen was exposed to the eyes and ears of his friends and

countrymen. The insolvent debtor consulted the wishes of his

creditor; the client would have blushed to oppose the views of

his patron; the general was followed by his veterans, and the

aspect of a grave magistrate was a living lesson to the

multitude. A new method of secret ballot abolished the influence

of fear and shame, of honor and interest, and the abuse of

freedom accelerated the progress of anarchy and despotism. 29 The

Romans had aspired to be equal; they were levelled by the

equality of servitude; and the dictates of Augustus were

patiently ratified by the formal consent of the tribes or

centuries. Once, and once only, he experienced a sincere and

strenuous opposition. His subjects had resigned all political

liberty; they defended the freedom of domestic life. A law which

enforced the obligation, and strengthened the bonds of marriage,

was clamorously rejected; Propertius, in the arms of Delia,

applauded the victory of licentious love; and the project of

reform was suspended till a new and more tractable generation had

arisen in the world. 30 Such an example was not necessary to

instruct a prudent usurper of the mischief of popular assemblies;

and their abolition, which Augustus had silently prepared, was

accomplished without resistance, and almost without notice, on

the accession of his successor. 31 Sixty thousand plebeian

legislators, whom numbers made formidable, and poverty secure,

were supplanted by six hundred senators, who held their honors,

their fortunes, and their lives, by the clemency of the emperor.

The loss of executive power was alleviated by the gift of

legislative authority; and Ulpian might assert, after the

practice of two hundred years, that the decrees of the senate

obtained the force and validity of laws. In the times of freedom,

the resolves of the people had often been dictated by the passion

or error of the moment: the Cornelian, Pompeian, and Julian laws

were adapted by a single hand to the prevailing disorders; but

the senate, under the reign of the Caesars, was composed of

magistrates and lawyers, and in questions of private

jurisprudence, the integrity of their judgment was seldom

perverted by fear or interest. 32

27 (return) [ Dionysius, with Arbuthnot, and most of the moderns,

(except Eisenschmidt de Ponderibus, &c., p. 137—140,) represent

the 100,000 asses by 10,000 Attic drachmae, or somewhat more than

300 pounds sterling. But their calculation can apply only to the

latter times, when the as was diminished to 1-24th of its ancient

weight: nor can I believe that in the first ages, however

destitute of the precious metals, a single ounce of silver could

have been exchanged for seventy pounds of copper or brass. A more

simple and rational method is to value the copper itself

according to the present rate, and, after comparing the mint and

the market price, the Roman and avoirdupois weight, the primitive

as or Roman pound of copper may be appreciated at one English

shilling, and the 100,000 asses of the first class amounted to

5000 pounds sterling. It will appear from the same reckoning,

that an ox was sold at Rome for five pounds, a sheep for ten

shillings, and a quarter of wheat for one pound ten shillings,

(Festus, p. 330, edit. Dacier. Plin. Hist. Natur. xviii. 4:) nor

do I see any reason to reject these consequences, which moderate

our ideas of the poverty of the first Romans. * Note: Compare

Niebuhr, English translation, vol. i. p. 448, &c.—M.]

28 (return) [ Consult the common writers on the Roman Comitia,

especially Sigonius and Beaufort. Spanheim (de Praestantia et Usu

Numismatum, tom. ii. dissert. x. p. 192, 193) shows, on a curious

medal, the Cista, Pontes, Septa, Diribitor, &c.]

29 (return) [ Cicero (de Legibus, iii. 16, 17, 18) debates this

constitutional question, and assigns to his brother Quintus the

most unpopular side.]

30 (return) [ Prae tumultu recusantium perferre non potuit,

(Sueton. in August. c. 34.) See Propertius, l. ii. eleg. 6.

Heineccius, in a separate history, has exhausted the whole

subject of the Julian and Papian Poppaean laws, (Opp. tom. vii.

P. i. p. 1—479.)]

31 (return) [ Tacit. Annal. i. 15. Lipsius, Excursus E. in

Tacitum. Note: This error of Gibbon has been long detected. The

senate, under Tiberius did indeed elect the magistrates, who

before that emperor were elected in the comitia. But we find laws

enacted by the people during his reign, and that of Claudius. For

example; the Julia-Norbana, Vellea, and Claudia de tutela

foeminarum. Compare the Hist. du Droit Romain, by M. Hugo, vol.

ii. p. 55, 57. The comitia ceased imperceptibly as the republic

gradually expired.—W.]

32 (return) [ Non ambigitur senatum jus facere posse, is the

decision of Ulpian, (l. xvi. ad Edict. in Pandect. l. i. tit.

iii. leg. 9.) Pomponius taxes the comitia of the people as a

turba hominum, (Pandect. l. i. tit. ii. leg 9.) * Note: The

author adopts the opinion, that under the emperors alone the

senate had a share in the legislative power. They had

nevertheless participated in it under the Republic, since

senatus-consulta relating to civil rights have been preserved,

which are much earlier than the reigns of Augustus or Tiberius.

It is true that, under the emperors, the senate exercised this

right more frequently, and that the assemblies of the people had

become much more rare, though in law they were still permitted,

in the time of Ulpian. (See the fragments of Ulpian.) Bach has

clearly demonstrated that the senate had the same power in the

time of the Republic. It is natural that the senatus-consulta

should have been more frequent under the emperors, because they

employed those means of flattering the pride of the senators, by

granting them the right of deliberating on all affairs which did

not intrench on the Imperial power. Compare the discussions of M.

Hugo, vol. i. p. 284, et seq.—W.]

The silence or ambiguity of the laws was supplied by the

occasional edicts 3211 of those magistrates who were invested

with the honors of the state. 33 This ancient prerogative of the

Roman kings was transferred, in their respective offices, to the

consuls and dictators, the censors and praetors; and a similar

right was assumed by the tribunes of the people, the ediles, and

the proconsuls. At Rome, and in the provinces, the duties of the

subject, and the intentions of the governor, were proclaimed; and

the civil jurisprudence was reformed by the annual edicts of the

supreme judge, the praetor of the city. 3311 As soon as he

ascended his tribunal, he announced by the voice of the crier,

and afterwards inscribed on a white wall, the rules which he

proposed to follow in the decision of doubtful cases, and the

relief which his equity would afford from the precise rigor of

ancient statutes. A principle of discretion more congenial to

monarchy was introduced into the republic: the art of respecting

the name, and eluding the efficacy, of the laws, was improved by

successive praetors; subtleties and fictions were invented to

defeat the plainest meaning of the Decemvirs, and where the end

was salutary, the means were frequently absurd. The secret or

probable wish of the dead was suffered to prevail over the order

of succession and the forms of testaments; and the claimant, who

was excluded from the character of heir, accepted with equal

pleasure from an indulgent praetor the possession of the goods of

his late kinsman or benefactor. In the redress of private wrongs,

compensations and fines were substituted to the obsolete rigor of

the Twelve Tables; time and space were annihilated by fanciful

suppositions; and the plea of youth, or fraud, or violence,

annulled the obligation, or excused the performance, of an

inconvenient contract. A jurisdiction thus vague and arbitrary

was exposed to the most dangerous abuse: the substance, as well

as the form, of justice were often sacrificed to the prejudices

of virtue, the bias of laudable affection, and the grosser

seductions of interest or resentment. But the errors or vices of

each praetor expired with his annual office; such maxims alone as

had been approved by reason and practice were copied by

succeeding judges; the rule of proceeding was defined by the

solution of new cases; and the temptations of injustice were

removed by the Cornelian law, which compelled the praetor of the

year to adhere to the spirit and letter of his first

proclamation. 34 It was reserved for the curiosity and learning

of Adrian, to accomplish the design which had been conceived by

the genius of Caesar; and the praetorship of Salvius Julian, an

eminent lawyer, was immortalized by the composition of the

Perpetual Edict. This well-digested code was ratified by the

emperor and the senate; the long divorce of law and equity was at

length reconciled; and, instead of the Twelve Tables, the

perpetual edict was fixed as the invariable standard of civil

jurisprudence. 35

3211 (return) [ There is a curious passage from Aurelius, a

writer on Law, on the Praetorian Præfect, quoted in Lydus de

Magistratibus, p. 32, edit. Hase. The Praetorian præfect was to

the emperor what the master of the horse was to the dictator

under the Republic. He was the delegate, therefore, of the full

Imperial authority; and no appeal could be made or exception

taken against his edicts. I had not observed this passage, when

the third volume, where it would have been more appropriately

placed, passed through the press.—M]

33 (return) [ The jus honorarium of the praetors and other

magistrates is strictly defined in the Latin text to the

Institutes, (l. i. tit. ii. No. 7,) and more loosely explained in

the Greek paraphrase of Theophilus, (p. 33—38, edit. Reitz,) who

drops the important word honorarium. * Note: The author here

follows the opinion of Heineccius, who, according to the idea of

his master Thomasius, was unwilling to suppose that magistrates

exercising a judicial could share in the legislative power. For

this reason he represents the edicts of the praetors as absurd.

(See his work, Historia Juris Romani, 69, 74.) But Heineccius had

altogether a false notion of this important institution of the

Romans, to which we owe in a great degree the perfection of their

jurisprudence. Heineccius, therefore, in his own days had many

opponents of his system, among others the celebrated Ritter,

professor at Wittemberg, who contested it in notes appended to

the work of Heineccius, and retained in all subsequent editions

of that book. After Ritter, the learned Bach undertook to

vindicate the edicts of the praetors in his Historia Jurisprud.

Rom. edit. 6, p. 218, 224. But it remained for a civilian of our

own days to throw light on the spirit and true character of this

institution. M. Hugo has completely demonstrated that the

praetorian edicts furnished the salutary means of perpetually

harmonizing the legislation with the spirit of the times. The

praetors were the true organs of public opinion. It was not

according to their caprice that they framed their regulations,

but according to the manners and to the opinions of the great

civil lawyers of their day. We know from Cicero himself, that it

was esteemed a great honor among the Romans to publish an edict,

well conceived and well drawn. The most distinguished lawyers of

Rome were invited by the praetor to assist in framing this annual

law, which, according to its principle, was only a declaration

which the praetor made to the public, to announce the manner in

which he would judge, and to guard against every charge of

partiality. Those who had reason to fear his opinions might delay

their cause till the following year. The praetor was responsible

for all the faults which he committed. The tribunes could lodge

an accusation against the praetor who issued a partial edict. He

was bound strictly to follow and to observe the regulations

published by him at the commencement of his year of office,

according to the Cornelian law, by which these edicts were called

perpetual, and he could make no change in a regulation once

published. The praetor was obliged to submit to his own edict,

and to judge his own affairs according to its provisions. These

magistrates had no power of departing from the fundamental laws,

or the laws of the Twelve Tables. The people held them in such

consideration, that they rarely enacted laws contrary to their

provisions; but as some provisions were found inefficient, others

opposed to the manners of the people, and to the spirit of

subsequent ages, the praetors, still maintaining respect for the

laws, endeavored to bring them into accordance with the

necessities of the existing time, by such fictions as best suited

the nature of the case. In what legislation do we not find these

fictions, which even yet exist, absurd and ridiculous as they

are, among the ancient laws of modern nations? These always

variable edicts at length comprehended the whole of the Roman

legislature, and became the subject of the commentaries of the

most celebrated lawyers. They must therefore be considered as the

basis of all the Roman jurisprudence comprehended in the Digest

of Justinian. ——It is in this sense that M. Schrader has written

on this important institution, proposing it for imitation as far

as may be consistent with our manners, and agreeable to our

political institutions, in order to avoid immature legislation

becoming a permanent evil. See the History of the Roman Law by M.

Hugo, vol. i. p. 296, &c., vol. ii. p. 30, et seq., 78. et seq.,

and the note in my elementary book on the Industries, p. 313.

With regard to the works best suited to give information on the

framing and the form of these edicts, see Haubold, Institutiones

Literariae, tom. i. p. 321, 368. All that Heineccius says about

the usurpation of the right of making these edicts by the

praetors is false, and contrary to all historical testimony. A

multitude of authorities proves that the magistrates were under

an obligation to publish these edicts.—W. ——With the utmost

deference for these excellent civilians, I cannot but consider

this confusion of the judicial and legislative authority as a

very perilous constitutional precedent. It might answer among a

people so singularly trained as the Romans were by habit and

national character in reverence for legal institutions, so as to

be an aristocracy, if not a people, of legislators; but in most

nations the investiture of a magistrate in such authority,

leaving to his sole judgment the lawyers he might consult, and

the view of public opinion which he might take, would be a very

insufficient guaranty for right legislation.—M.]

3311 (return) [ Compare throughout the brief but admirable sketch

of the progress and growth of the Roman jurisprudence, the

necessary operation of the jusgentium, when Rome became the

sovereign of nations, upon the jus civile of the citizens of

Rome, in the first chapter of Savigny. Geschichte des Romischen

Rechts im Mittelalter.—M.]

34 (return) [ Dion Cassius (tom. i. l. xxxvi. p. 100) fixes the

perpetual edicts in the year of Rome, 686. Their institution,

however, is ascribed to the year 585 in the Acta Diurna, which

have been published from the papers of Ludovicus Vives. Their

authenticity is supported or allowed by Pighius, (Annal. Rom.

tom. ii. p. 377, 378,) Graevius, (ad Sueton. p. 778,) Dodwell,

(Praelection. Cambden, p. 665,) and Heineccius: but a single

word, Scutum Cimbricum, detects the forgery, (Moyle’s Works, vol.

i. p. 303.)]

35 (return) [ The history of edicts is composed, and the text of

the perpetual edict is restored, by the master-hand of

Heineccius, (Opp. tom. vii. P. ii. p. 1—564;) in whose researches

I might safely acquiesce. In the Academy of Inscriptions, M.

Bouchaud has given a series of memoirs to this interesting

subject of law and literature. * Note: This restoration was only

the commencement of a work found among the papers of Heineccius,

and published after his death.—G. ——Note: Gibbon has here fallen

into an error, with Heineccius, and almost the whole literary

world, concerning the real meaning of what is called the

perpetual edict of Hadrian. Since the Cornelian law, the edicts

were perpetual, but only in this sense, that the praetor could

not change them during the year of his magistracy. And although

it appears that under Hadrian, the civilian Julianus made, or

assisted in making, a complete collection of the edicts, (which

certainly had been done likewise before Hadrian, for example, by

Ofilius, qui diligenter edictum composuit,) we have no sufficient

proof to admit the common opinion, that the Praetorian edict was

declared perpetually unalterable by Hadrian. The writers on law

subsequent to Hadrian (and among the rest Pomponius, in his

Summary of the Roman Jurisprudence) speak of the edict as it

existed in the time of Cicero. They would not certainly have

passed over in silence so remarkable a change in the most

important source of the civil law. M. Hugo has conclusively shown

that the various passages in authors, like Eutropius, are not

sufficient to establish the opinion introduced by Heineccius.

Compare Hugo, vol. ii. p. 78. A new proof of this is found in the

Institutes of Gaius, who, in the first books of his work,

expresses himself in the same manner, without mentioning any

change made by Hadrian. Nevertheless, if it had taken place, he

must have noticed it, as he does l. i. 8, the responsa prudentum,

on the occasion of a rescript of Hadrian. There is no lacuna in

the text. Why then should Gaius maintain silence concerning an

innovation so much more important than that of which he speaks?

After all, this question becomes of slight interest, since, in

fact, we find no change in the perpetual edict inserted in the

Digest, from the time of Hadrian to the end of that epoch, except

that made by Julian, (compare Hugo, l. c.) The latter lawyers

appear to follow, in their commentaries, the same texts as their

predecessors. It is natural to suppose, that, after the labors of

so many men distinguished in jurisprudence, the framing of the

edict must have attained such perfection that it would have been

difficult to have made any innovation. We nowhere find that the

jurists of the Pandects disputed concerning the words, or the

drawing up of the edict. What difference would, in fact, result

from this with regard to our codes, and our modern legislation?

Compare the learned Dissertation of M. Biener, De Salvii Juliani

meritis in Edictum Praetorium recte aestimandis. Lipsae, 1809,

4to.—W.]

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.]