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( Originally Published Early 1900's )
THE CODIFICATION OF THE ROMAN LAWS
The Emperor Justinian was born of obscure barbarian parentage near the site of the modern town of Sophia, in Bulgaria. His elevation was prepared by the fortunes of his uncle, Justin, who, having enlisted at an early age in the Imperial Guard at Constantinople, had risen to wealth and military distinction, had commanded the guard at the important crisis of the death of the Emperor Anastasius, and, taking advantage of an intrigue in the palace, had, at the age of sixty-eight years, seated himself on the vacant throne. Justin had neither the natural ability nor the education requisite in the position, to which he had raised himself; but he found a useful assistant in his nephew, Justinian, whom he had drawn from his Dacian home and had educated at Constantinople, as the heir of his private fortune, and at length of the Eastern Empire. After a short reign of nine years and four months before his death Justin, finding his health failing, solemnly in the presence of the patriarch and of the Senate placed the diadem upon the head of Justinian, who was then proclaimed in the circus, and saluted by the applause of the people as the lawful sovereign of the East.
Justinian became Emperor in A.D. 527, in the forty-fifth year of his age. His reign lasted thirty-eight years and seven months. Its events are very fully related by Procopius, the private secretary of Belisarius. They are presented in different lights, according as the historian courted the favor of the sovereign or smarted under the sting of disgrace. Procopius wrote a History, and a book of Edifices, in which he celebrates the genius, magnificence, and piety of Justinian. He afterward wrote a book of Anecdotes, wherein he sought to undo his former work, representing the Emperor as an odious and contemptible tyrant, and presenting his Empress, Theodora, as having been before her marriage the vilest of prostitutes. The Anecdotes are so evidently steeped in venom as to be quite unworthy of credence; yet it is upon the authority of this satire alone that rest the scandalous tales respecting the Empress Theodora, which have found a place in history.
But while we may reasonably question the naked scenes in which Procopius has depicted the youthful Theodora, there is no doubt of her lowly origin that she was a daughter of the "bear-keeper" of the circus, and that she, together with her sisters, had appeared upon the theater in pantomime. Before her marriage with Justinian, however, she had withdrawn from the stage, and had returned, or seemed to have returned to a life of chastity, if ever she departed from it, earning her support by spinning wool in a small house, which afterward she transformed into a magnificent temple. Though her beauty may have been that which first captivated Justinian, she possessed an understanding and a temper which secured for her an ascendency over him during the twenty-three years through which she remained his consort; in all these years the breath of scan-dal was never raised against the Empress, though as much cannot be said of her intimate friend, Antonina, the wife of Belisarius, with whom she was often in league in disposing of some of the weightiest affairs of the Empire.
But while Theodora is painted as a model wife, and while she founded institutions of charity and religion, she was very far from being either a model ruler or a model woman. She was avaricious and was unscrupulous in her means of acquiring wealth; the most illustrious personages of the State often suffered the indignity of her capricious arrogance; and the reproach of cruelty has left an indelible stain upon her memory. Her spies observed and reported every word or action injurious to their royal mistress, and whomsoever they charged were immured in her private prisons, beyond the reach of justice, some to perish, others to reappear in the world, after the loss of limbs or of reason, the living monuments of the vengeance of an Empress.
In those times of schism in the Church the creed of the sovereign was of vital moment. Unfortunately for her credit with the Church, that of Theodora, though she was exemplary in her devotion, was tainted with heresy; but it is quite possible that to this very circumstance is to be attributed the religious tolerance of Justinian.
Among the benevolent institutions founded by Theodora was a monastery, on the Asiatic side of the Bosphorus, endowed with a liberal maintenance for the sup-port of 500 women, who had been collected from the streets and brothels of Constantinople. In this holy retreat they were devoted to perpetual confinement, and though some are said in their despair to have flung them-selves headlong into the sea, it may be hoped that the greater number were grateful to the Empress for their enforced deliverance from sin.
The health of Theodora was always delicate. By the advice of her physicians she visited annually the Pythian warm baths. On these occasions she was attended by the Praetorian prefect, the great treasurer, several counts and patricians, and a train of 4,000 attendants. The highways were repaired at her approach. And as she passed through Bithynia, she distributed liberal alms to the churches, monasteries, and hospitals that prayers might be offered for the restoration of her health. At length, in the twenty-fourth year of her marriage and the twenty-second of her reign she died of a cancer. Her loss to Justinian was irreparable. She had been his trusted adviser, and had shared with him equally the cares and the honors of government. On more than one occasion of civil disturbance she had displayed a courage which shamed into resolute action her less spirited consort. He himself has left on record that his laws were to be attributed to the counsels of his most revered wife.
Justinian inherited an Empire bounded on the north by the Danube, on the east by the Euphrates, and em-bracing Armenia, Asia Minor, Syria, and Egypt. The Western Empire had already been broken up by the northern barbarians. Spain was possessed by the Visigoths, Gaul by the Franks, Italy by the Goths, and Africa by the Vandals. He left an Empire enlarged by the restoration of Africa and Italy; but this work of conquest, and the wars carried on with Chosroes, the King of Persia, which, after various vicissitudes of fortune, left the borders of the Empire in this quarter as he had found them, were delegated to his lieutenants. Justinian himself had neither a genius nor a taste for military operations. His personal supervision was confined to the internal affairs of his Empire. His constant care was to strengthen its fortifications, particularly against the frequent incursions of the northern hordes. Along the Danube from the River Save to the Euxine was extended a chain of four-score defensive works, and innumerable castles were built in Dacia, Epirus, Thessaly, and Macedonia. The wall at the isthmus of Corinth was repaired, as a protection of the cities of Peloponnesus. To protect Constantinople itself Anastasius had built what was known as the "long wall," sixty miles in length, from the Propontis to the Euxine, and this, too, was strengthened by Justinian. These are some of his more important defensive works in the European portion of his Empire virtual confessions that the Empire no longer dared to rely wholly on the terror inspired by its soldiery. Similar works were constructed in Asia. A chain of new or repaired fortifications was gradually constructed, extending from the Chalybian Mountains, in the northeast, along the line of the Euphrates, to the Persian gulf, while within the region thus bounded, in Mesopotamia and Armenia, the towns were diligently strengthened, and all positions of military importance were occupied with forts, substantially built of stone or brick, and strongly garrisoned.
But Justinian did not restrict his edifices to those designed for defense. In Constantinople alone, and in the adjacent suburbs, he erected twenty-five churches, the most of which were decorated with marble and gold, while numerous other cities of the Empire among them, Trebizond, Antioch, Epheseus, Carthage profited in like manner by his generous liberality. At Jerusalem he erected to the Virgin a temple, for which it was necessary first to secure a site by raising a part of a deep valley to the height of the mountain. The temple was built of stone from a neighboring quarry, hewn into large blocks, and two of its pillars of red marble were esteemed the largest in the world.
The most splendid of the edifices of Justinian was the Church of St. Sophia, now the principal mosque of Constantinople. The original Church of St. Sophia, built by the founder of the Western Empire, was destroyed by fire, and a structure erected in its place met the same fate in a sedition which occurred in the fifth year of Justinian's reign. Within forty days after its destruction the work of rebuilding the church on a grander scale and with greater magnificence was begun. Ten thousand workmen are said to have been employed upon it, and the Emperor himself, clad in a linen tunic, came daily to survey their rapid progress, and to stimulate them by his familiarity and by his rewards. In the building of this temple, and of other similar works, Justinian was fortunate in having the services of architects who seem to have brought to perfection the purely mechanical and mathematical part of the art of building. The aerial dome of this edifice, 115 feet in diameter, and with so slight a convexity as to be nearly flat, continues still to be an architectural marvel. Twenty years after St. Sophia was built a portion of it was destroyed by an earthquake; but the building was restored in the thirty-sixth year of his reign, and, with the substitution of the crescent for the cross, it remains externally as it was left by Justinian.
To execute these public works, to meet the expenses of his wars and to satisfy the conditions of disgraceful treaties with Persia, Justinian required vast sums of money. Anastasius had amassed by rigid economy an enormous treasure; but these riches were quickly dissipated by Justinian, and to meet his extraordinary expenses he was compelled to draw upon his people. Oppressive taxation paralyzed industry and spread from one end to the other of the Empire discontent, which frequently broke out into insurrection. The condition of the people under the shadow of the splendid buildings which their means had erected, and behind the costly fortification which did not always protect appears, if we may trust the accounts of Procopius, to have been one of unalloyed wretchedness. In one instance only does Justinian seem to have given any thought to the industrial welfare of his people the first consideration of the wise modern ruler he introduced into his Empire from China the silk-worm and the manufacture of silk. The measure was taken, however, not for the purpose of benefiting of his subjects by the introduction of a new industry, but because the importation of silks, which had become necessary to the rich, was seriously interfered with by the Persians. At the court of Justinian there were corruption and avarice in high places, at which both the Emperor and the Empress connived, if they did not sometimes profit by it. Not all of the wealth extorted from the people went into the royal treasury. The wars of Justinian, though glorious to his reign, having been conducted by his lieutenants, belong less to the story of his own life and actions than to general history, and can be disposed of briefly. Justinian began his reign with a war with Persia, which proved both costly and unprofitable, and at the end of five years was concluded by the purchase of an ignominious peace. In the seventh year of his reign he entered upon a war with Gelimer, the Vandal King of Africa, who had dethroned and cast into prison his kinsman, Hilderic, in whose behalf Justinian now took up arms. The conduct of the war was entrusted to Belisarius, a Thracian by birth, who, having first served in the guard of Justinian, had afterward shown great generalship in the Persian War. In three months after he had effected a landing near Carthage, Belisarius was able to report to Justinian that he had achieved the conquest of Africa. He had defeated Gelimer in two battles, and was in possession of Carthage. The army of Gelimer had been utterly routed and dispersed, and he himself had fled into Numidia, whither he was followed by a lieutenant of Belisarius. In the following year Gelimer surrendered, upon the assurance of safety and honorable treatment given him by Belisarius in the name of the Emperor. The pledge was faithfully kept, and the ex-King of Africa passed the remainder of his days the proprietor of an ample estate in Galatia.
The brilliant success of Belisarius created in his own camp jealous enmity against him, and word was secretly sent to Justinian that the conquering General designed to seat himself on the vacant throne of Africa; but the promptness with which he responded to an order for his recall disconcerted his traducers and restored to him, to all outward appearances, the confidence of his sovereign. Belisarius was accorded a triumph for his victory, which imposing ceremony was now for the first time seen at Constantinople.
In the next year Justinian determined upon war with Theodatus, the Gothic King of Italy. The occasion of the war was, as in the case with Africa, a quarrel between two claimants of the throne. Belisarius was again put in command of the imperial army. Having first effected the conquest of Sicily and settled a revolt in Africa, in two campaigns he drove the Goths entirely out of lower Italy, and ended by securing, through a risky intrigue with the Gothic General, Vitiges, the surrender of their last stronghold, Ravenna. Belisarius bad feigned to listen with favor to an invitation of Vitiges to assume himself the crown of Italy, Theodatus having by pusillanimously keeping himself shut up in his capital, forfeited the respect of his soldiers. Justinian may have heard something of this intrigue. At any rate, he recalled Belisarius before his conquest had been fairly secured, with the excuse that the remnant of the Gothic War might be entrusted to less able hands, and that he alone was capable of defending the East against the innumerable armies of Persia.
Belisarius was now sent against the Persians. He saved the East, but he offended Theodora, and perhaps the Emperor himself. The ill-health of Justinian rendered plausible a false report of his death; and Belisarius and his colleague seem to have expressed themselves with incautious freedom on the subject of the succession. His colleague, Buzes, lost his rank and his liberty by the command of Theodora. Belisarius was recalled, this time also upon a pretext that he was needed elsewhere in Italy. But no sooner had he returned, alone and defenseless, than a hostile commission was sent to the East to seize his treasures and to criminate his actions, and his body-guard of 6,000 picked men was broken up and distributed among the chiefs of the army. He was coldly received by the Emperor and Empress, and treated with insolence by the servile courtiers. He withdrew to his deserted palace, where even his wife, the intriguing Antonina, received him disdainfully. He retired to his chamber, in an agony of grief and terror, there to await the death sentence which he confidently expected; but the missive which came finally was a par-don from Theodora, professedly granted on the intercession of Antonina, and a permission to retain part of his treasures. The extravagant transports of gratitude with which he is said to have received this act of grace, are little calculated to raise him in our estimation, and very likely have been exaggerated.
Soon after this Belisarius was sent to Italy, which had again been overrun by the Goths. But the force given him was entirely insufficient for the undertaking of reconquering Italy, nor did he subsequently receive efficient support from the Emperor. After five. checkered campaigns he was compelled to retire from Italy into Sicily, and having remained there for some months in inactivity, he was permitted, after the death of Theodora, to return ingloriously to Constantinople. Belisarius was subsequently called upon to repel an invading body of Bulgarians, who had reached almost to the suburbs of Constantinople. But though successful in averting the impending calamity and received on his return to the city with the acclamations of the people, he met in the palace but a cool reception. After having been formally thanked by the Emperor, he withdrew again to a life of privacy.
Four years after this event a conspiracy against the life of the Emperor was discovered. Two of the persons implicated belonged to the household of Belisarius. They declared under torture that they had acted by authority of their master. Belisarius was adjudged guilty by the council before whom he appeared to meet the charge, and though his life was graciously spared, his property was sequestered, and for several months he was guarded as a prisoner in his own house. At length his innocence was acknowledged, his freedom and his honors were restored; but he lived only eight months to enjoy this vindication of his loyalty.
If much space has been given here to Belisarius, it is because his name is indissolubly linked with that of Justinian. Although on more than one occasion he was in a position to raise successfully the standard of revolt, and although there were times when the bitterness of his traducers seemed to leave no other way of safety open to him, he never permitted himself to be seduced or driven from the path of his duty as a subject. That his marked ability and his great achievements should have rendered him a source of disquietude to Justinian and Theodora, who might not unreasonably have misgivings lest they trusted too implicitly to his apparent integrity and devotion to their interests, is easy to understand, and perhaps history has judged them too harshly for their seeming ingratitude toward the man who had done so much to make their reign glorious. They seem never to have proceeded against him beyond the point necessary for assuring their own safety. The pathetic story that the great General was deprived of his eye-sight and was reduced to beg "Give a penny to Belisarius" is a fiction of later times. That he was left in the enjoyment of property amply sufficient for all his necessities as a private citizen appears from the fact, that, though Justinian sequestered his estates after his death, enough treasure was left Antonina to enable her to found with it a monastery.
To go back now to the Italian War, this war was finally brought to a successful termination by the eunuch Narses, in the twenty-eighth year of Justinian's reign. The war had lasted through twenty years. It resulted in the complete overthrow of the power of the Goths; and Italy, with Ravenna as its capital, while Rome was reduced to the second rank, continued to be a part of the Eastern Empire, governed by exarchs appointed at Constantinople, until this Government was, in its turn, overthrown by the Lombards. In Africa, after a series of disturbances which had been provoked by the severity of taxation imposed by Justinian upon his new subjects, and later by a war with the Moors, the power of the Emperor was firmly established. For above a century Carthage and the fruitful southern coast of the Mediterranean, continued to appertain to the Empire of the East. During the greater part of his reign Justinian was engaged in war with the Persian Chosroes. Both of these monarchs became weary of the fruitless struggle in their old age, and settled upon a peace paid for as usual, by Justinian which left the boundary between them substantially as it was in the beginning of their reigns.
Justinian lived but eight months after the death of Belisarius. He had reigned thirty-eight years and had reached the age of eighty-three. In his character there is little that is striking to be noted. He is described as of a well-proportioned figure, of a ruddy complexion, and a pleasing countenance. He was easy of access, patient of hearing, courteous and affable in his discourse. That he was not cruel or vindictive is proved by many acts of clemency toward those who had plotted against his life or power. He was a hard worker, applying himself diligently to the acquisition of knowledge as well as the dispatch of business. Justinian was a man of many and varied attainments. If he suppressed the schools of Athens, it was because he had the discernment to perceive that philosophy had degenerated sadly since the days of Zeno and Plato and had become simply a vehicle of pedantic and pernicious subtleties. His love of art was exhibited in the many beautiful edifices which he erected in all parts of his Empire. As a theologian, he attempted, though vainly, to reconcile the Christian sects. But it was as a lawyer and legislator that Justinian won his chief success. His great achievement, and that upon which his fame mainly rests, was his review of the Roman jurisprudence. In giving some account of this monumental work we shall attempt little more than to abridge from the account given by Gibbon.
When Justinian ascended the throne the Roman jurisprudence was in a condition such as to render its reformation an absolute necessity. In the course of ten centuries the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest. Books could not easily be found; and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion. As a youth Justinian had made a special study of the laws, and upon ascending the throne he determined upon a work of reformation. In the first year of his reign he directed Tribonian a man of extraordinary learning, the Bacon of his age and nine learned associates, to revise the ordinances of his predecessors, as they were contained, since the time of Adrian, 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. The new Code of Justinian, comprised in twelve books, was honored with his name and confirmed by the royal signature. Authentic copies were multiplied by the hands of scribes, and were transmitted to the magistrates of the European and Asiatic, and afterward the African provinces; and the law of the Empire was proclaimed on solemn festivals at the doors of churches.
This work done, a still more difficult task remained —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. This task they performed in the remarkably short space of three years. Its results were embodied in the Digest of Pandects. From the library of Tribonian they chose forty of 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. 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 laws of the people, and the decrees of the Senate succeeded to the authority of the original text, and this text was abandoned, as a useless, though venerable, relic of antiquity.
The Code, the Pandects and the Institutes a work composed simultaneously with the Pandects were now declared to be the legitimate system of civil jurisprudence, and 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.
These several works were designedly mere compilations. Justinian sought only to condense into a convenient form the existing laws, and to preserve faithfully their spirit, and he purposely abstained from any attempt at originality. In the selection of ancient laws, he seems to have viewed his predecessors without jealousy and with equal regard. But the series did not ascend above the reign of Adrian. The civilians who lived under the first Caesars are seldom permitted to speak, and only three names belong to the age of the Republic. The design was 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.
Six years had not elapsed from the publication of the Code, before Justinian 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 with fifty decisions of the darkest and most intricate points of jurisprudence. Every year, or, according to Procopius, each day, was marked by some legal innovation. Many of his acts were rescinded by himself, many have been obliterated by time; but the number of sixteen Edicts, and 168 Novels has been admitted into the authentic body of the civil jurisprudence.
The character of the Code and of the Pandects has already been indicated. In the Institutes the laws are classified under four headings I, Persons; II, Things; III, Actions; IV, Private Wrongs, terminated by the principles of Criminal Law.
Justinian doubtless looked forward beyond his own time; but he can hardly have realized fully the ultimate value and influence of the work he so diligently set him-self to perform. Through his agency the spirit of the old Roman law has been transfused into the domestic institutions of all Europe. The Civil Law, as set forth in the Code of Justinian, is still the basis of jurisprudence in most of the Continental countries of Europe, holding the place of the Common Law of England in that country and its colonies and in the United States.