the two sects derived their appellations from Sabinus and Proculius, 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 Caesars was represented by Cassius,† who gloried in his descent from the patriot assassin. By the perpetual edict, the controversies of the sects were in a great measure determined. For that important work, the emperor Hadrian preferred the chief of the Sabinians; the friends of monarchy prevailed; but the moderation of Salvius Julian insensibly reconciled the victors and the vanquished. Like the contemporary philosophers, the lawyers of the age of the Antonines disclaimed the authority of a master, and adopted from every system the most probable doctrines. But their writings would have been less volu

(c. 2-7, p. 24-120,) and it would be almost ridiculous to praise his equal justice to these obsolete sects. [The work of Gaius, which is later than Hadrian's reign, contains some notice of these sects and their disputes. He avowed himself a follower of Sabinus and Caius. Refer to Hugo, tom. ii, p. 106.—WARNKÖNIG.] [Niebuhr (Lectures, 3. 237) fixes the last years of Antoninus Pius, "the golden age of Jurisprudence," as the time in which Gaius wrote. According to Zedler's Lexicon (21.454,) in which the articles on Roman Law are full of information, Caius was one of the middle, or eclectic, sect.-ED.]

* At the first summons he flies to the turbot council; yet Juvenal (Sat. 4. 75-81,) styles the prefect 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.

Mascou, de Sectis, c. 8, p. 120-144, de Herciscundis, a legal term which was applied to these eclectic lawyers: herciscere is synonymous to dividere. [M. Warnkönig has here asserted, that there never was such a word as "herciscundi," till Cujacius invented it and substituted it for the "terris condi" of Servius ad Virgilium. The origin and ancient use of this word may, however, be found in the Twelve Tables (Tab. 5, Lex. 2), in Ducange (3. 1127), in Zedler (1. 407, "Actio Familia herciscundæ "), and in M. Warnkönig's own work (Inst. Juris Rom. Priv. 1. 4, c. 2, p. 438). Cujacius undoubtedly misapplied it (Op. tom. iii, Observat. 1. 10, c. 4) to the Miscelliones, or middle lawsect, who never were called Herciscundi. But he was not the first by whom Servius was misread. Burmann, quoting that ancient critic (ad Æneid. 3. 67) amor.g the Varia Lectiones of "terris condi," gives herciscundi, L. Fab." The word was therefore introduced into some MS. or one of the imperfect editions of Servius, which preceded that of Daniel in 1600. Cujacius took it from one of these. Mascou copied him and misled Gibbon.-ED.]

16

minous, 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 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 cast. ing vote was ascribed to the superior wisdom of Papinian.*

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 equal 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

* See the Theodosian Code, 1. 1, tit. 4, with Godefroy's Com mentary, 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. [It would have been hetter, if one of these civilians had been declared a standing authority, as had been previously done in the case of Julius Paulus.-HUGO.] [M. Closius of Tübingen has communicated to me two Constitutions of the emperor Constantine, which he found in the Ambrosian Library at Milan; the first, dated A.D. 321, sets aside all that had been written by Ulpian and Paulus; and the second (A.D. 327) orders all the writings of Paulus to be universally received as the criterion of law.-WARNKÖNIG.] [Clinton (F. R. i, p. 375) gives the first of these edicts of Constantine from the Cod. Theodos. Wenck. p. 24. For the second see Ib. p. 382.—ED.]

+ [Justinian's collections did not remedy this. But I hold it to be no evil, that the laws of a country should be couched in a foreign idiom. This has preserved, in Germany, the study of Latin, and repressed the litigious spirit among the people. I am told, that the reading of law books by the commonalty in our own language, has given rise to law-suits in some places.-HUGO.]

VOL. V.

D

familiar to the infancy of Justinian; his youth had been in. structed by the lessons of jurisprudence, and his imperia 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 Tribonian.† This extraordinary man, the object of so much praise and censure, was a native of Side in Pamphylia; and his genius, like that of Bacon, embraced as his own, all the business and knowledge of the age. Tribonian composed, both in prose and verse, on a strange diversity of curious and abstruse subjects-a double panegyric of Justinian and the life of the philosopher Theodotus; the nature of happiness, and the duties of government; Homer's catalogue and the four-and-twenty sorts of metre; the astronomical canon of Ptolemy; the changes of the months; the houses of the planets; and the harmonic system of the world. To the literature of Greece he added the use of the Latin tongue; the Roman civilians were deposited in his library and in his mind; and he most assiduously cultivated those arts which opened the road of wealth and preferment. From the bar of the prætorian prefects, he raised himself to the honours of quæstor, of consul, and of master of the offices: the council of Justinian listened to hi eloquence and wisdom, and envy was mitigated by the gentleness and affability of his manners. The reproaches of impiety and avarice have stained the virtues or the reputation of Tribonian. In a bigoted and perse

*For the legal labours of Justinian, I have studied the preface to the Institutes; the first, second, and third prefaces to the Pandects; the first and second preface to the Code; and the Code itself (1. 1, tit. 17, 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 Ludwig, 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. 1. 1, c. 23, 24. Anecdot. c. 13. 20), and Suidas (tom. iii, p. 501, edit. Küster). Ludwig (in Vit. Jus tinian. p. 175-209) works hard, very hard, to whitewash-the blackI 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; iit, p. 418; xii, p. 346. 353. 471.)

a-moor.

cuting 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 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 the emperor. His passive and dutiful submission has been honoured with the praise of Justinian himself, whose vanity was incapable of discerning how often that submission degenerated into the grossest adulation. Tribonian. adored the virtues of his gracious master: the earth was unworthy of such a prince; and he affected a pious fear, that Justinian, like Elijah or Romulus, would be snatched into the air, and translated alive to the mansions of celestial glory.*

If Cæsar had achieved the reformation of the Roman law, his creative genius, enlightened by reflection and study, would have given to the world a pure and original system of jurisprudence. Whatever flattery might suggest, the emperor of the East was afraid to establish his private judgment as the standard of equity: in the possession of legislative power, he borrowed the aid of time and opinion; and his laborious compilations are guarded by the sages and legislators of past times. Instead of a statue cast in a simple mould by the hand of an artist, the works of Justinian represent a tesselated pavement of antique and costly, but too * 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 poterit 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 Boileau has not blushed to say,-" Le destin à ses yeux n'oseroit balancer." Yet neither Augustus nor Louis XIV were fools.

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 Hadrian, 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 labours of their Roman predecessors. The new CODE of Justinian was honoured with his name, and confirmed by his royal signature: authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magistrates of the European, the Asiatic, and afterwards the African provinces: and the law of the empire was proclaimed on solemn festivals at the doors of churches. A more arduous operation was still behind-to extract the spirit of jurisprudence from the decisions and conjectures, the questions and disputes, of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the emperor to exercise an absolute jurisdiction over the works of their predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the DIGEST or PANDECTS,* in three years, will deserve praise or

* Пávdεктαι (general receivers) was a common title of the Greek miscellanies. (Plin. Præfat. ad Hist. Natur.) The Digesta of Scævola, 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. Florentin. p. 300–304.) [Πάνδεκται is a word that occurs frequently. See the Preface to Aulus Gellius. -WARNKÖNIG.] [It was current but not common. Pliny disapproved the use of it, as too comprehensive and promising over much. It is but slightly introduced by Aulus Gellius in his Preface, and more specially noticed by him (1. 13, c. 9) as the title of the principal book, written by Cicero's freedman and pupil, Tullius Tiro, all whose writings are lost. The best authorities answer Gibbon's question, by setting the word down as masculine. Scapula, in his Lexicon, does this without a comment. Gesner (Linguæ Latinæ Thesaurus. 2. 674) makes the nom. sing. Pandectes, and observes that, according to Priscian, all Greek words of the first declension which terininate in es are masculine.-ED.]