Manuscript Sources of the New Code

Three hundred and sixty years of disorder and decay accelerated the progress of oblivion; and it may fairly be presumed that of the [Roman] writings which Justinian is accused of neglecting many were no longer to be found in the libraries of the East.

Justinian Code Published, featuring a series of excerpts selected from The History of the Decline and Fall of the Roman Empire by Edward Gibbon published in 1788.

Previously in Justinian Code Published. Now we continue.

Time: 534
Place: Constantinople

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 subtlety 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 accomplishment 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 hundredfold 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 praetorian 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 successfully 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.

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 were 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 (1), Persons, to (2) Things, and from things to (3) Actions; and the Article IV of Private Wrongs is terminated by the principles of Criminal Law.

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