XLIV. CHA P. 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 Hadrian*; and the two sects derived their appellations from Sabinus and Proculus, their most celebrated teachers. The names of Cassians and Pegasians were likewise applied to the same parties; but, by a strange reverse, the popular cause was in the hands of Pegasus †, a timid slave of Domitian, while the favourite of the Cæsars was represented by Cassius, who gloried in his descent from the patriot assassin. By the perpetual edict, the controversies of the sects were in a great measure determined. For that important work, the empe ror Hadrian preferred the chief of the Sabinians: the friends of monarchy prevailed; but the mo deration of Salvius Julian insensibly reconciled the victors and the vanquished. Like the contemporary philosophers, the lawyers of the age of the Antonines disclaimed the authority of a master, and adopted from every system the most probable doctrines §. But their writings would have been less voluminous 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 obsoleté sects. † At the first summons he flies to the turbot council; yet Juvenal (Satir. iv. 75-81.) styles the præfect or Bailif of Rome sanctissimus leguin 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. Tacit. Annal. xvii. 7. Sueton. in Nerone, c. xxxvii. § Mascou, de Sectis, c. viii. p. 120-144. de Heriscundis, a legal term which was applied to these ecllectic lawyers: berciscere is synonymous to dividere. voluminous, had their choice been more unani- CHAP. mous. The conscience of the judge was perplexed XLIV. 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 indulgént edict of the younger Theodosius excused him from the labour 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 *. tion of the law by &c. When Justinian ascended the throne, the reform- Reforma ation of the Roman jurisprudence was an arduous Roman but indispensable task. In the space of ten cen- Justinian turies, the infinite variety of laws and legal opinions A. D. 527, 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 imper fectly studied in the academies of Berytus and Con stantinople. As an Illyrian soldier, that idiom was VOL. VIII. familiar D * See the Theodosian Code, 1. i. tit. iv. with Godefroy Commentary, tom. i. p. 30-35. This decree might give oc casion to Jesuitical disputes like those in the Lettres Provinci ales, whether a judge was obliged to follow the opinion of Pa pinian, or of a majority, against his judgment, against his conscience, &c. Yet a legislator might give that opinion, how ever false, the validity, not of truth, but of law. CHA P. familiar to the infancy of Justinian; his youth had XLIV. been instructed by the lessons of jurisprudence, and his Imperial choice selected the most learned civilians of the East, to labour with their sovereign in the work of reformation *. The theory of professors was assisted by the practice of advocates, and the experience of magistrates; and the whole undertaking was animated by the spirit of TriboTribonian, niant. This extraordinary man, the object of so 627-546. much praise and censure, was a native of Side in A. D. Pamphylia; and his genius, like that of Bacon', embraced, as his own, all the business and knowledge of the age. Tribonian composed, both in prose and verse, on a strange diversity of curious and abstruse subjects: a double panegyric of Justinian and the life of the philosopher Theodotus; the nature of happiness and the duties of government; Homer's catalogue and the four-andtwenty sorts of metre; the astronomical canon of Ptolemy; For the legal labours of Justinian, I have studied the preface to the Institutes; the 1st, 2d, and 3d prefaces to the Pandects, the 1st and second Preface to the Code; and the Code itself (1. i. tit. xvii. de Veteri Jure enucleando). After these original testimonies, I have cousulted, 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.). For the character of Tribonian, see the testimonies of Procopius (Persic. l. i. c. 23, 24. Anecdot. c. 13. 20.) and Suidas tom. ii. p. 501 edit. Kuster). Ludewig (in Vit. Justinian. p. •175-209.) works hard, very hard, to white-wash-the black-a-moor. 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. Græc. tom. i. p. 341. ii. p. 518. iii. p. 418. xii. p. 346. 353.474.). XLIV. Ptolemy; the changes of the months; the houses CHA P. of the planets; and the harmonic system of the world. To the literature of Greece he added the use of the Latin tongue; the Roman civilians were deposited in his library and in his mind; and he most assiduously cultivated those arts which opened the road of wealth and preferment. From the bar of the prætorian præfects, he raised himself to the honours of quæstor, of consul, and of master of the offices: the council of Justinian listened to his eloquence and wisdom, and envy was mitigated by the gentleness and affability of his manners. The reproaches of impiety and avarice have stained the virtues or the reputation of Tribonian. In a bigotted and persecuting court, the principal minister was accused of a secret aversion to the Christian faith, and was supposed to entertain he sentiments of an Atheist and a Pagan, which have been imputed, inconsistently enough, to the last philoso❤ phers 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 clamours. perhaps to the just indignation, of the people; but the quæstor was speedily restored, and till the hour of his death he possessed above twenty years, the favour and confidence, of D 2 the CHAP. the emperor. His passive and dutiful submission XLIV. has been honoured with the praise of Justinian The Code A. D. 529 himself, whose vanity was incapable of discerning how often that submission degenerated into the grossest adulation. Tribonian adored the virtues of his gracious master: the earth was unworthy of such a prince; and he affected a pious fear, that Justinian, like Elijah or Romulus, would be snatched into the air, and translated alive to the mansions of celestial glory. * If Cæsar had achieved the reformation of the Roman law, his creative genius, enlightened by reflection and study, would have given to the world a pure and original system of jurisprudence. Whatever flattery might suggest, the emperor of the East was afraid to establish his private judgment as the standard of equity in the possession of legislative power, he borrowed the aid of time and opinion; and his laborious compilations are guarded by the sages and legislators of past times. Instead of a statue cast in a simple mould by the hand of an artist, the works of Justinian represent a tesselated pavement of antique and costly, but too often of incoherent fragments. In the first year *This story is related by Hesychius (de Viris Illustribus), Procopius (Anecdat. c. 13.), and Suidas (tom. iii. p. 501. Such flattery is incredible! -Nihil est quod credere de se Non potest, cum laudatur Diis æqua 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 Boilea has not blushed to say, "Le destin à ses yeux n'oseroit balancer." Yet neither Augustus nor Louis XIV. were fools. |