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History of the Decline and Fall of the Roman Empire — Volume 4 online

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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" 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, and an
irrevocable gift of the people, were created by the fancy of Ulpian, or
more probably of Tribonian himself; 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." 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." 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; and the purest materials of the Code and Pandects are inscribed
with the names of Caracalla and his ministers. 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. Yet in the _rescripts_, 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,
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.
* 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 spurious or obsolete.

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; 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. 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. 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 prætor; 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.

A more liberal art was cultivated, however, by the sage 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 prætor, 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. 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. 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 Ælius Pætus, 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 Scævola 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 Cæsars, 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.

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 Scævolas had been
taught by use and experience; but Servius Sulpicius was the first
civilian who established his art on a certain and general theory. 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. 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 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, 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.

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 prætor 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, 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 Scævolas themselves,
which was often overthrown by the eloquence or sophistry of an ingenious
pleader. 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 prætor 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

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_. Two sages of the law, Ateius Capito and
Antistius Labeo, 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; and
he consulted nature for the age of puberty, without confining his
definition to the precise period of twelve or fourteen years. 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; 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 favorite 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 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. 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.

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. 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 præfects, he raised himself
to the honors of quæstor, of consul, and of master of the offices: the
council of Justinian listened to his eloquence and wisdom; and envy
was mitigated by the gentleness and affability of his manners. The
reproaches of impiety and avarice have stained the 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 quæstor was speedily restored,
and, till the hour of his death, he possessed, above twenty years, the
favor and confidence of the emperor. His passive and dutiful submission
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 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

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 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,

Online LibraryEdward GibbonHistory of the Decline and Fall of the Roman Empire — Volume 4 → online text (page 24 of 49)