the second,* containing the constitutions of the Christian Emperors to his own time.t.

The compilation of Justinian consists of three parts:— 1. The Institutes; 2. The Digest, or Pandects ; 3. The Code. 1. The Institutes are a summary view of the Roman law; an elementary book, compiled for the use of students, as an introduction to the study of that law. 2. The Digest, or Pandects, are a methodical collection of all former laws and opinions,-3. The Code, of all former constitutions, which it was deemed expedient to retain and adopt.§ 4. To which, after the death of Justinian,

* The president Henault, in his history, observes,-The code of laws compiled by order of Theodosius the younger, towards the year 435, and introduced by the Romans into France, was lost towards the end of the second race. The Code published by Justinian in 529, and to which we had been entire strangers, was found [in point of fact, it never was lost] in Apulia, towards the year 1137, and brought to France, where it is become our written law. The Benedictine fathers, in their literary history of France, pretend that this event happened at least a century later. Cujas has since restored the Theodosian Code; but at present it is used only for consulting.

The two first, of which some fragments have escaped, were framed by two private lawyers, to preserve the constitutions of the Pagan Emperors from Hadrian 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 regarded by the judge as spurious or obsolete.

Cujacius assigned to Gregory the reigns from Hadrian to Gallienus, and the continuation to his fellow-labourer, Hermogenes. This general division may be just; but they often trespassed on each other's ground.-Gibbon.

‡ Пavdekтai, (general receivers,) was a common title of the Greek Miscellanies, (Plin. Prefat. ad Hist. Nat.) The Digesta of Scævola, Marcellinus, Celsus, were already familiar to the civilians: but Justinian was in the wrong, when he used the two appellations as synonymous.-Gibbon.

§ In the first year of his reign, Justinian directed the faithful Tribonian, and nine learned associates, to revise the ordinances of his predecessors, as they were contained, since the time of Hadrian, 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 imi

were added the Novels, or new constitutions, with the Edicts made during his reign.

tate the labours of their Roman predecessors. The new CODE of Justinian was honoured 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, 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 command 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 labours, 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 an 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 in 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 indispen. sable, 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 with. out jealousy, and with equal regard: the series could not ascend above the reign of Hadrian, 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 thrée names can be attributed to the age of the republic. The favourite 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

The Code Na.

poleon, an il

Various nations, in modern times, Prussia, for example,

lustration of all France, Bavaria, and the Netherlands, taking the works of Justinian, more or less, for their model, have reduced

modern Codes.

foreign tongue, and jurisprudence, as a lucrative profession. But the ministers of Justinian were instructed to labour, 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 or 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 candour 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 sole 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 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 had been insufficient, and the antinomes, or contradictions, of the Code and Pandects, still exercise the patience and subtlety of modern civilians.

A rumour, 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 labour 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 hope 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 for ever, as soon as that use was superseded by the innovatious 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

their municipal jurisprudence, wholly or in part, to a Code. But since, for present purposes, the plan of each may be regarded as essentially the same, it will be sufficient to confine our attention to the Code Napoleon.*

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 prescribed, were deemed unworthy of future notice; the twelve tables, and prætorian edict, 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 7th 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 cyphers 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 autho rity 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 Dicmede, of transmuting brass into gold, he discovered the necessity of purifying his goldfrom 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 200 of his own laws, and 50 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 16 Edicts, and 168 Novels, has been admitted into the authentic body of the civil jurisprudence.-Gibbon.

This celebrated code was not the sole production of the authorities of the empire, but was the result of alterations prescribed by the National Assembly. This body, in 1791, ordered a code of civil laws to be drawn up, which should be common to the whole kingdom. The Convention continued the project; and Cambaceres, the late archchancellor of France, had the courage to undertake the task. The constitution of the year 3, restoring a degree of calm to the distracted state, Cambaceres had the courage to present a project, on the 24th Prairial, year 4; but on the ballot for renewing a part of the Council of Five Hundred, the lot to retire having fallen upon him among others, this plan fell to the ground, and the newly-projected legislation lay dor mant for three years. The time, however, was now approaching when his labours and perseverance were to be crowned with success. On the 18th, Brumaire, the extraordi. nary man, who was afterwards called to the empire, took the helm of France, and the

The different A written Code may, amongst others, have, for its ob

ends which a

may have for

its objects.

written Code ject, one of two things (and, of course, both).—1. Its object may be, to create a new body of law. 2. Its object may be, to give to the existing law a different form, with the view, chiefly, of making it more certain and complete.

That the Code

Napoleon has

one of these ends only.

Now the object of the Code Napoleon is the first and for its object the first only. The different provinces of France had hitherto been governed by different laws; and to obviate the inconveniences resulting from this state of things, was the intention of the Code. Considered in this rela

new code of jurisprudence was instantly resumed. Tronchet, Bigot, Preameneu, Maleville, and Portalis, were commissioned to draw up a plan, and discuss the basis, of a civil legislation, following, at the same time, the order of the different projects presented by Cambaceres, for the purpose of its being laid before the nation. The commission was appointed on the 24th Thermidor, year 8; and on the 26th Ventose, year 9, the plan was printed.

Before offering it for discussion to the Council of State, it was submitted to the whole empire, through the medium of the press; and, by this means, the general and individual observations of France were collected upon every head. The Council of Cassation was also particularly consulted. Sufficient time having been allowed for this purpose, the plans of the Council of State were first discussed in its various sections, the Section of Legislation sitting upon the civil code.

From this body it passed to the Tribunate: here it was soon found impossible to get through it, if each article were the subject of general debate; the Tribunate therefore divided itself, like the Council of State, into sections or committees; and, if objections occurred to any part as it came before them, a conference was had, before either Cambaceres himself, or the Consul de Brun, between the section of the Tribunate and the section of the Council of State, to which this branch of legislation had been committed. Having been approved by both these bodies, it was referred to the Legislative in titles, each decreed separately, and afterwards separately promulgated. Supplementary articles might be added, but no essential alteration was to take place until it had been ten years tried; the advantages, the disadvantages, and the national opinions concerning it, would then, it was thought, be known; in the mean time, the Tribunal of Cassation rectified any material errors and wanderings of the inferior tribunals.-London Encyclopædia.

Upon Napoleon's elevation to the throne, one of his first acts was to change the name of the Code Civil de Français, for that of the Code Napoleon.

* Clovis, en apparence, rassasié de conquêtes, mais sûr de celles qu'il avait faites, se rend, en 509, à Paris, où, dans une Assemblée Générale, il annonça le dessein de