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

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 censure, according to the merit of
the execution. From the library of Tribonian, they chose forty, the most
eminent civilians of former times: two thousand treatises were comprised
in an abridgment of fifty books; and it has been carefully recorded,
that three millions of lines or sentences, 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.

Since the emperor declined the fame and envy of original composition, we
can only require, at his hands, method choice, and fidelity, the
humble, though indispensable, virtues of a compiler. Among the various
combinations of ideas, it is difficult to assign any reasonable
preference; but as the order of Justinian is different in his three
works, it is possible that all may be wrong; and it is certain that
two cannot be right. In the selection of ancient laws, he seems to have
viewed his predecessors without jealousy, and with equal regard: the
series could not ascend above the reign of Adrian, and the narrow
distinction of Paganism and Christianity, introduced by the superstition
of Theodosius, had been abolished by the consent of mankind. But the
jurisprudence of the Pandects is circumscribed within a period of
a hundred years, from the perpetual edict to the death of Severus
Alexander: the civilians who lived under the first Cæsars are seldom
permitted to speak, and only three names can be attributed to the age of
the republic. The favorite of Justinian (it has been fiercely urged) was
fearful of encountering the light of freedom and the gravity of Roman
sages. Tribonian condemned to oblivion the genuine and native wisdom
of Cato, the Scævolas, and Sulpicius; while he invoked spirits more
congenial to his own, the Syrians, Greeks, and Africans, who flocked to
the Imperial court to study Latin as a foreign tongue, and jurisprudence
as a lucrative profession. But the ministers of Justinian, were
instructed to labor, not for the curiosity of antiquarians, but for
the immediate benefit of his subjects. It was their duty to select the
useful and practical parts of the Roman law; and the writings of the old
republicans, however curious on excellent, were no longer suited to
the new system of manners, religion, and government. Perhaps, if the
preceptors and friends of Cicero were still alive, our candor would
acknowledge, that, except in purity of language, their intrinsic merit
was excelled by the school of Papinian and Ulpian. The science of the
laws is the slow growth of time and experience, and the advantage
both of method and materials, is naturally assumed by the most recent
authors. The civilians of the reign of the Antonines had studied the
works of their predecessors: their philosophic spirit had mitigated the
rigor of antiquity, simplified the forms of proceeding, and emerged
from the jealousy and prejudice of the rival sects. The choice of
the authorities that compose the Pandects depended on the judgment of
Tribonian: but the power of his sovereign could not absolve him from
the sacred obligations of truth and fidelity. As the legislator of the
empire, Justinian might repeal the acts of the Antonines, or condemn, as
seditious, the free principles, which were maintained by the last of the
_Roman_ lawyers. But the existence of past facts is placed beyond the
reach of despotism; and the emperor was guilty of fraud and forgery,
when he corrupted the integrity of their text, inscribed with
their venerable names the words and ideas of his servile reign, and
suppressed, by the hand of power, the pure and authentic copies of
their sentiments. The changes and interpolations of Tribonian and his
colleagues are excused by the pretence of uniformity: but their cares
have been insufficient, and the _antinomies_, or contradictions of the
Code and Pandects, still exercise the patience and subtilty of modern
civilians.

A rumor devoid of evidence has been propagated by the enemies of
Justinian; that the jurisprudence of ancient Rome was reduced to ashes
by the author of the Pandects, from the vain persuasion, that it was now
either false or superfluous. Without usurping an office so
invidious, the emperor might safely commit to ignorance and time the
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. Copies were
slowly multiplied and cautiously renewed: the hopes of profit tempted
the sacrilegious scribes to erase the characters of antiquity, and
Sophocles or Tacitus were obliged to resign the parchment to missals,
homilies, and the golden legend. If such was the fate of the most
beautiful compositions of genius, what stability could be expected
for the dull and barren works of an obsolete science? The books of
jurisprudence were interesting to few, and entertaining to none: their
value was connected with present use, and they sunk forever as soon as
that use was superseded by the innovations of fashion, superior merit,
or public authority. In the age of peace and learning, between Cicero
and the last of the Antonines, many losses had been already sustained,
and some luminaries of the school, or forum, were known only to the
curious by tradition and report. Three hundred and sixty years of
disorder and decay accelerated the progress of oblivion; and it may
fairly be presumed, that of the writings, which Justinian is accused
of neglecting, many were no longer to be found in the libraries of
the East. The copies of Papinian, or Ulpian, which the reformer had
proscribed, were deemed unworthy of future notice: the Twelve Tables and
prætorian edicts insensibly vanished, and the monuments of ancient Rome
were neglected or destroyed by the envy and ignorance of the Greeks.
Even the Pandects themselves have escaped with difficulty and danger
from the common shipwreck, and criticism has pronounced that _all_ the
editions and manuscripts of the West are derived from _one_ original.
It was transcribed at Constantinople in the beginning of the seventh
century, was successively transported by the accidents of war and
commerce to Amalphi, Pisa, and Florence, and is now deposited as a
sacred relic in the ancient palace of the republic.

It is the first care of a reformer to prevent any future reformation. To
maintain the text of the Pandects, the Institutes, and the Code, the use
of ciphers and abbreviations was rigorously proscribed; and as Justinian
recollected, that the perpetual edict had been buried under the weight
of commentators, he denounced the punishment of forgery against the rash
civilians who should presume to interpret or pervert the will of their
sovereign. The scholars of Accursius, of Bartolus, of Cujacius, should
blush for their accumulated guilt, unless they dare to dispute his right
of binding the authority of his successors, and the native freedom of
the mind. But the emperor was unable to fix his own inconstancy; and,
while he boasted of renewing the exchange of Diomede, of transmuting
brass into gold, discovered the necessity of purifying his gold from the
mixture of baser alloy. Six years had not elapsed from the publication
of the Code, before he condemned the imperfect attempt, by a new and
more accurate edition of the same work; which he enriched with two
hundred of his own laws, and fifty decisions of the darkest and
most intricate points of jurisprudence. Every year, or, according
to Procopius, each day, of his long reign, was marked by some legal
innovation. Many of his acts were rescinded by himself; many were
rejected by his successors; many have been obliterated by time; but the
number of sixteen Edicts, and one hundred and sixty-eight Novels, has
been admitted into the authentic body of the civil jurisprudence. In the
opinion of a philosopher superior to the prejudices of his profession,
these incessant, and, for the most part, trifling alterations, can be
only explained by the venal spirit of a prince, who sold without shame
his judgments and his laws. The charge of the secret historian is indeed
explicit and vehement; but the sole instance, which he produces, may
be ascribed to the devotion as well as to the avarice of Justinian. A
wealthy bigot had bequeathed his inheritance to the church of Emesa;
and its value was enhanced by the dexterity of an artist, who subscribed
confessions of debt and promises of payment with the names of the
richest Syrians. They pleaded the established prescription of thirty or
forty years; but their defence was overruled by a retrospective edict,
which extended the claims of the church to the term of a century; an
edict so pregnant with injustice and disorder, that, after serving this
occasional purpose, it was prudently abolished in the same reign. If
candor will acquit the emperor himself, and transfer the corruption
to his wife and favorites, the suspicion of so foul a vice must still
degrade the majesty of his laws; and the advocates of Justinian may
acknowledge, that such levity, whatsoever be the motive, is unworthy of
a legislator and a man.

Monarchs seldom condescend to become the preceptors of their subjects;
and some praise is due to Justinian, by whose command an ample system
was reduced to a short and elementary treatise. Among the various
institutes of the Roman law, those of Caius were the most popular in the
East and West; and their use may be considered as an evidence of
their merit. They were selected by the Imperial delegates, Tribonian,
Theophilus, and Dorotheus; and the freedom and purity of the Antonines
was incrusted with the coarser materials of a degenerate age. The same
volume which introduced the youth of Rome, Constantinople, and Berytus,
to the gradual study of the Code and Pandects, is still precious to
the historian, the philosopher, and the magistrate. The Institutes
of Justinian are divided into four books: they proceed, with no
contemptible method, from, I. _Persons_, to, II. _Things_, and from
things, to, III. _Actions_; and the article IV., of _Private Wrongs_, is
terminated by the principles of _Criminal Law_.




Chapter XLIV: Idea Of The Roman Jurisprudence. - Part V.

The distinction of ranks and _persons_ is the firmest basis of a mixed
and limited government. In France, the remains of liberty are kept alive
by the spirit, the honors, and even the prejudices, of fifty thousand
nobles. Two hundred families supply, in lineal descent, the second
branch of English legislature, which maintains, between the king and
commons, the balance of the constitution. A gradation of patricians and
plebeians, of strangers and subjects, has supported the aristocracy
of Genoa, Venice, and ancient Rome. The perfect equality of men is the
point in which the extremes of democracy and despotism are confounded;
since the majesty of the prince or people would be offended, if
any heads were exalted above the level of their fellow-slaves or
fellow-citizens. In the decline of the Roman empire, the proud
distinctions of the republic were gradually abolished, and the reason or
instinct of Justinian completed the simple form of an absolute monarchy.
The emperor could not eradicate the popular reverence which always
waits on the possession of hereditary wealth, or the memory of famous
ancestors. He delighted to honor, with titles and emoluments, his
generals, magistrates, and senators; and his precarious indulgence
communicated some rays of their glory to the persons of their wives and
children. But in the eye of the law, all Roman citizens were equal,
and all subjects of the empire were citizens of Rome. That inestimable
character was degraded to an obsolete and empty name. The voice of a
Roman could no longer enact his laws, or create the annual ministers of
his power: his constitutional rights might have checked the arbitrary
will of a master: and the bold adventurer from Germany or Arabia was
admitted, with equal favor, to the civil and military command, which the
citizen alone had been once entitled to assume over the conquests of his
fathers. The first Cæsars had scrupulously guarded the distinction of
_ingenuous_ and _servile_ birth, which was decided by the condition of
the mother; and the candor of the laws was satisfied, if her freedom
could be ascertained, during a single moment, between the conception
and the delivery. The slaves, who were liberated by a generous master,
immediately entered into the middle class of _libertines_ or freedmen;
but they could never be enfranchised from the duties of obedience and
gratitude; whatever were the fruits of their industry, their patron and
his family inherited the third part; or even the whole of their fortune,
if they died without children and without a testament. Justinian
respected the rights of patrons; but his indulgence removed the badge of
disgrace from the two inferior orders of freedmen; whoever ceased to be
a slave, obtained, without reserve or delay, the station of a citizen;
and at length the dignity of an ingenuous birth, which nature had
refused, was created, or supposed, by the omnipotence of the emperor.
Whatever restraints of age, or forms, or numbers, had been formerly
introduced to check the abuse of manumissions, and the too rapid
increase of vile and indigent Romans, he finally abolished; and the
spirit of his laws promoted the extinction of domestic servitude.
Yet the eastern provinces were filled, in the time of Justinian, with
multitudes of slaves, either born or purchased for the use of their
masters; and the price, from ten to seventy pieces of gold, was
determined by their age, their strength, and their education. But the
hardships of this dependent state were continually diminished by the
influence of government and religion: and the pride of a subject was no
longer elated by his absolute dominion over the life and happiness of
his bondsman.

The law of nature instructs most animals to cherish and educate their
infant progeny. The law of reason inculcates to the human species the
returns of filial piety. But the exclusive, absolute, and perpetual
dominion of the father over his children, is peculiar to the Roman
jurisprudence, and seems to be coeval with the foundation of the city.
The paternal power was instituted or confirmed by Romulus himself; and,
after the practice of three centuries, it was inscribed on the fourth
table of the Decemvirs. In the forum, the senate, or the camp, the
adult son of a Roman citizen enjoyed the public and private rights of a
_person_: in his father's house he was a mere _thing_; confounded by the
laws with the movables, the cattle, and the slaves, whom the capricious
master might alienate or destroy, without being responsible to any
earthly tribunal. The hand which bestowed the daily sustenance might
resume the voluntary gift, and whatever was acquired by the labor or
fortune of the son was immediately lost in the property of the father.
His stolen goods (his oxen or his children) might be recovered by the
same action of theft; and if either had been guilty of a trespass, it
was in his own option to compensate the damage, or resign to the injured
party the obnoxious animal. At the call of indigence or avarice, the
master of a family could dispose of his children or his slaves. But the
condition of the slave was far more advantageous, since he regained, by
the first manumission, his alienated freedom: the son was again restored
to his unnatural father; he might be condemned to servitude a second and
a third time, and it was not till after the third sale and deliverance,
that he was enfranchised from the domestic power which had been so
repeatedly abused. According to his discretion, a father might
chastise the real or imaginary faults of his children, by stripes, by
imprisonment, by exile, by sending them to the country to work in chains
among the meanest of his servants. The majesty of a parent was armed
with the power of life and death; and the examples of such bloody
executions, which were sometimes praised and never punished, may be
traced in the annals of Rome beyond the times of Pompey and Augustus.
Neither age, nor rank, nor the consular office, nor the honors of a
triumph, could exempt the most illustrious citizen from the bonds of
filial subjection: his own descendants were included in the family of
their common ancestor; and the claims of adoption were not less sacred
or less rigorous than those of nature. Without fear, though not
without danger of abuse, the Roman legislators had reposed an unbounded
confidence in the sentiments of paternal love; and the oppression was
tempered by the assurance that each generation must succeed in its turn
to the awful dignity of parent and master.

The first limitation of paternal power is ascribed to the justice and
humanity of Numa; and the maid who, with _his_ father's consent, had
espoused a freeman, was protected from the disgrace of becoming the
wife of a slave. In the first ages, when the city was pressed, and often
famished, by her Latin and Tuscan neighbors, the sale of children might
be a frequent practice; but as a Roman could not legally purchase the
liberty of his fellow-citizen, the market must gradually fail, and the
trade would be destroyed by the conquests of the republic. An imperfect
right of property was at length communicated to sons; and the threefold
distinction of _profectitious_, _adventitious_, and _professional_ was
ascertained by the jurisprudence of the Code and Pandects. Of all that
proceeded from the father, he imparted only the use, and reserved the
absolute dominion; yet if his goods were sold, the filial portion
was excepted, by a favorable interpretation, from the demands of
the creditors. In whatever accrued by marriage, gift, or collateral
succession, the property was secured to the son; but the father, unless
he had been specially excluded, enjoyed the usufruct during his life.
As a just and prudent reward of military virtue, the spoils of the enemy
were acquired, possessed, and bequeathed by the soldier alone; and the
fair analogy was extended to the emoluments of any liberal profession,
the salary of public service, and the sacred liberality of the emperor
or empress. The life of a citizen was less exposed than his fortune
to the abuse of paternal power. Yet his life might be adverse to the
interest or passions of an unworthy father: the same crimes that flowed
from the corruption, were more sensibly felt by the humanity, of the
Augustan age; and the cruel Erixo, who whipped his son till he expired,
was saved by the emperor from the just fury of the multitude. The Roman
father, from the license of servile dominion, was reduced to the
gravity and moderation of a judge. The presence and opinion of Augustus
confirmed the sentence of exile pronounced against an intentional
parricide by the domestic tribunal of Arius. Adrian transported to
an island the jealous parent, who, like a robber, had seized the
opportunity of hunting, to assassinate a youth, the incestuous lover of
his step-mother. A private jurisdiction is repugnant to the spirit of
monarchy; the parent was again reduced from a judge to an accuser;
and the magistrates were enjoined by Severus Alexander to hear his
complaints and execute his sentence. He could no longer take the life
of a son without incurring the guilt and punishment of murder; and the
pains of parricide, from which he had been excepted by the Pompeian
law, were finally inflicted by the justice of Constantine. The same
protection was due to every period of existence; and reason must applaud
the humanity of Paulus, for imputing the crime of murder to the father
who strangles, or starves, or abandons his new-born infant; or exposes
him in a public place to find the mercy which he himself had denied.
But the exposition of children was the prevailing and stubborn vice of
antiquity: it was sometimes prescribed, often permitted, almost always
practised with impunity, by the nations who never entertained the Roman
ideas of paternal power; and the dramatic poets, who appeal to the human
heart, represent with indifference a popular custom which was palliated
by the motives of economy and compassion. If the father could subdue
his own feelings, he might escape, though not the censure, at least the
chastisement, of the laws; and the Roman empire was stained with the
blood of infants, till such murders were included, by Valentinian and
his colleagues, in the letter and spirit of the Cornelian law. The
lessons of jurisprudence and Christianity had been insufficient to
eradicate this inhuman practice, till their gentle influence was
fortified by the terrors of capital punishment.

Experience has proved, that savages are the tyrants of the female sex,
and that the condition of women is usually softened by the refinements
of social life. In the hope of a robust progeny, Lycurgus had delayed
the season of marriage: it was fixed by Numa at the tender age of twelve
years, that the Roman husband might educate to his will a pure and
obedient virgin. According to the custom of antiquity, he bought his
bride of her parents, and she fulfilled the _coemption_ by purchasing,
with three pieces of copper, a just introduction to his house and
household deities. A sacrifice of fruits was offered by the pontiffs in
the presence of ten witnesses; the contracting parties were seated on
the same sheep-skin; they tasted a salt cake of _far_ or rice; and this
_confarreation_, which denoted the ancient food of Italy, served as an
emblem of their mystic union of mind and body. But this union on the
side of the woman was rigorous and unequal; and she renounced the name
and worship of her father's house, to embrace a new servitude, decorated
only by the title of adoption, a fiction of the law, neither rational
nor elegant, bestowed on the mother of a family (her proper appellation)
the strange characters of sister to her own children, and of daughter to
her husband or master, who was invested with the plenitude of paternal
power. By his judgment or caprice her behavior was approved, or
censured, or chastised; he exercised the jurisdiction of life and death;
and it was allowed, that in the cases of adultery or drunkenness, the
sentence might be properly inflicted. She acquired and inherited for
the sole profit of her lord; and so clearly was woman defined, not as a
_person_, but as a _thing_, that, if the original title were deficient,
she might be claimed, like other movables, by the use and possession
of an entire year. The inclination of the Roman husband discharged or
withheld the conjugal debt, so scrupulously exacted by the Athenian and
Jewish laws: but as polygamy was unknown, he could never admit to his
bed a fairer or a more favored partner.

After the Punic triumphs, the matrons of Rome aspired to the common
benefits of a free and opulent republic: their wishes were gratified
by the indulgence of fathers and lovers, and their ambition was