Decline and Fall of The Roman Empire




Gibbon's The Decline And Fall Of The Roman Empire

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1080 - 1085.) Have our British Mss. of the Pandects been collated?]
[Footnote 87: 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.]

[Footnote 88: 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.]

[Footnote 89: 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.

  1. 4 - 8, p. 17 - 50.) The Liber Pandectarum of Pisa was undoubtedly consulted in the xivth century by the great Bartolus,
  1. 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.]

[Footnote 90: 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.]

[Footnote 91: 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.

  1. c. 10, 11, 12, p. 62 - 93.)] [Footnote 92: 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.]

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, ^93 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, ^94 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. ^95 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. ^96 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.
[Footnote 93: Apud Homerum patrem omnis virtutis, (1st Praefat. ad Pandect.) A line of Milton or Tasso would surprise us in an act of parliament. Quae omnia obtinere sancimus in omne aevum. Of the first Code, he says, (2d Praefat.,) in aeternum valiturum.

Man and forever!]

[Footnote 94: Novellae is a classic adjective, but a barbarous substantive, (Ludewig, p. 245.) Justinian never collected them himself; the nine collations, the legal standard of modern tribunals, consist of ninety-eight Novels; but the number was increased by the diligence of Julian, Haloander, and Contius, (Ludewig, p. 249, 258 Aleman. Not in Anecdot. p. 98.)] [Footnote 95: Montesquieu, Considerations sur la Grandeur et la Decadence des Romains, c. 20, tom. iii. p. 501, in 4to. On this occasion he throws aside the gown and cap of a President a Mortier.]

[Footnote 96: Procopius, Anecdot. c. 28. A similar privilege was granted to the church of Rome, (Novel. ix.) For the general repeal of these mischievous indulgences, see Novel. cxi. and Edict. v.]

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, ^97 those of Caius ^98 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. ^*

[Footnote 97: Lactantius, in his Institutes of Christianity, an elegant and specious work, proposes to imitate the title and method of the civilians. Quidam prudentes et arbitri aequitatis Institutiones Civilis Juris compositas ediderunt, (Institut. Divin. l. i. c. 1.) Such as Ulpian, Paul, Florentinus, Marcian.]

[Footnote 98: The emperor Justinian calls him suum, though he died before the end of the second century. His Institutes are quoted by Servius, Boethius, Priscian, &c.; and the Epitome by Arrian is still extant. (See the Prolegomena and notes to the edition of Schulting, in the Jurisprudentia Ante-Justinianea, Lugd. Bat. 1717. Heineccius, Hist. J R No. 313. Ludewig, in Vit. Just. p. 199.)]

[Footnote *: Gibbon, dividing the Institutes into four parts, considers the appendix of the criminal law in the last title as a fourth part. - W.]



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