except in purity of language,[1] 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 rigour 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 a 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.[2] 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,[3] 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 cjires have been insufficient, and the antinomies or contradictions of the Code and Pandects still exercise the patience and subtlety of modern civilians.[4]
Loss of the ancient jurisprudence A rumour devoid of evidence has been propagated by the enemies of Justinian: that the jurisprudence of ancient Rome- ↑ Strip away the crust of Tribonian, and allow for the use of technical words, and the Latin of the Pandects will be found not unworthy of the silver age. It has been vehemently attacked by Laurentius Valla, a fastidious grammarian of the xvth century, and by his apologist Floridus Sabinus. It has been defended by Alciat and a nameless advocate (most probably James Capellus). Their various treatises are collected by Duker (Opuscula de Latinitate veterum juris consultorum, Lugd. Bat. 1721, in 12mo). [It has been pointed out by Warnkönig that Valla eulogized the language of Justinian's lawyers.]
- ↑ Nomina quidem veteribus servavimus, legum autem veritatem nostram fecimus. Itaque siquid erat in illis seditiosum, multa autem talia erant ibi reposita, hoc decisum est et definitum, et in perspicuum finem deducta est quæque lex (Cod. Justinian. l. i. tit. xvii. leg. 3, No. 10). A frank confession! [Warnkönig pointed out that seditiosum means disputed, not seditious.]
- ↑ The number of these emblemata (a polite name for forgeries) is much reduced by Bynkershoek (in the iv. last books of his Observations), who poorly maintains the right of Justinian and the duty of Tribonian.
- ↑ The antinomies, or opposite laws of the Code and Pandects, are sometimes the cause, and often the excuse, of the glorious uncertainty of the civil law, which so often affords what Montaigne calls "Questions pour l'Ami". See a fine passage of Franciscus Balduinus in Justinian (l. ii. p. 259, &c. apud Ludewig, p. 305, 306).
