James Bryce

“ In modern times Tribonian has been, as the master workman of Justinian’s codification and legislation, charged with three offences—bad Latinity, a defective arrangement of the legal matter in the Code and Digest, and a too free handling of the extracts from the older jurists included in the latter compilation. The first of these charges cannot be denied; but it is hard to see why a lawyer of the 6th century, himself born in a Greek-speaking part of the empire, should be expected to write Latin as pure as that of the age of Cicero, or even of the age of Gaius and the Antonines. ”

“ By a codification we understand the reduction of the whole pre-existing body of law to a new form, the re-stating it in a series of propositions, scientifically ordered, which may or may not contain some new substance, but are at any rate new in form. If he had, so to speak, thrown into one furnace all the law contained in the treatises of the jurists and in the imperial ordinances, fused them down, the gold of the one and the silver of the other, and run them out into new moulds, this would have been codification. ”

“ Fiscal severities were no doubt one cause of the insurrections which now and then broke out, and in the gravest of which, (532) thirty thousand persons are said to have perished in the capital. It is not always easy to discover, putting together the trustworthy evidence of Justinian’s own laws and the angry complaints of Procopius, what was the nature and justification of the changes made in the civil administration. ”

“ With sufficient time and labour the work might no doubt have been done; but what we possess of Justinian’s own legislation, and still more what we know of the general condition of literary and legal capacity in his time, makes it certain that it would not have been well done, and that the result would have been not more valuable to the Romans of that age, and much less valuable to the modern world, than are the results, preserved in the Digest and the Codex, of what he and Tribonian actually did. ”

“ And, whereas Justinian’s constitutions contained in the Codex were all issued in Latin, the rest of the book being in that tongue, these Novels were nearly all published in Greek, Latin translations being of course made for the use of the western provinces. They are very bulky, and with the exception of a few, particularly the 116th and 118th, which introduce the most sweeping and laudable reforms into the law of intestate succession, are much more interesting, as supplying materials for the history of the time, social, economical and ecclesiastical, than in respect of any purely legal merits. ”

“ It is the Latin volume which we now call the Digest (Digesta) or Pandects (Πάνδεκται) and which is by far the most precious monument of the legal genius of the Romans, and indeed, whether one regards the intrinsic merits of its substance or the prodigious influence it has exerted and still exerts, the most remarkable law-book that the world has seen. The extracts comprised in it are 9123 in number, taken from thirty-nine authors, and are of greatly varying length, mostly only a few lines long. ”

“ It only remains to say something regarding Justinian’s personal character and capacities, with regard to which a great diversity of opinion has existed among historians. The civilians, looking on him as a patriarch of their science, have as a rule extolled his wisdom and virtues; while ecclesiastics of the Roman Church, from Cardinal Baronius downwards, have been offended by his arbitrary conduct towards the popes, and by his last lapse into heresy, and have therefore been disposed to accept the stories which ascribe to him perfidy, cruelty, rapacity and extravagance. ”

“ His chief passion, after that for his own fame and glory, seems to have been for theology and religion; it was in this field that his literary powers exerted themselves (for he wrote controversial treatises and hymns) , and his taste also, for among his numerous buildings the churches are those on which he spent most thought and money. Considering that his legal reforms are those by which his name is mainly known to posterity, it is curious that we should have hardly any information as to his legal knowledge, or the share which he took in those reforms. ”

“ Paganism, however, survived; we find it in Laconia in the end of the 9th century, and in northern Syria it has lasted till our own times. There were also a good many crypto-pagans among the educated population of the capital. Procopius, for instance, if he was not actually a Pagan, was certainly very little of a Christian. Inquiries made in the third year of Justinian’s reign drove nearly all of these persons into an outward conformity, and their offspring seem to have become ordinary Christians. ”

“ Even the great Tribonian labours under the reproach of corruption, while the fact that Justinian maintained John of Cappadocia in power long after his greed, his unscrupulousness, and the excesses of his private life had excited the anger of the whole empire, reflects little credit on his own principles of government and sense of duty to his subjects. ”

“ She exercised over him that influence which a stronger character always exercises over a weaker, whatever their respective positions; and unfortunately it was seldom a good influence, for Theodora (q.v.) seems to have been a woman who, with all her brilliant gifts of intelligence and manner, had no principles and no pity. Justinian was rather quick than strong or profound; his policy does not strike one as the result of deliberate and well-considered views, but dictated by the hopes and fancies of the moment. ”

“ She surrounded herself with ceremonious pomp, and required all who approached to abase themselves in a manner new even to that half-Oriental court. She was an incessant and tyrannical match-maker, forcing men to accept wives and women to accept husbands at her caprice. ”

“ The Code and Digest are badly arranged according to our notions of scientific arrangement. These, however, are modern notions. The ancients generally cared but little for what we call a philosophic distribution of topics, and Tribonian seems to have merely followed the order of the Perpetual Edict which custom had already established, and from which custom would perhaps have refused to permit him to depart. He may more fairly be blamed for not having arranged the extracts in each title of the Digest according to some rational principle ”

“ This lasted till 539, when Chosroes declared war, alleging that Justinian had been secretly intriguing against him with the Hephthalite Huns, and doubtless moved by alarm and envy at the victories which the Romans had been gaining in Italy. The emperor was too much occupied in the West to be able adequately to defend his eastern frontier. Chosroes advanced into Syria with little resistance, and in 540 captured Antioch, then the greatest city in Asia, carrying off its inhabitants into captivity. ”

“ Tribonian has been blamed for the insertions the compilers made in the sentences of the old jurists (the so-called Emblemata Triboniani) ; but it was a part of Justinian’s plan that such insertions should be made, so as to adapt those sentences to the law as settled in the emperor’s time. On Justinian’s own laws, contained in the Codex and in his Novels, a somewhat less favourable judgment must be pronounced. They, and especially the latter, are diffuse and often lax in expression, needlessly prolix, and pompously rhetorical. ”

“ TRIBONIAN, the famous jurist and minister of Justinian, was born in Pamphylia in the latter part of the 5th century. Adopting the profession of an advocate, he came to Constantinople and practised in the prefectural courts there, reaching such eminence as tojattract the notice of the emperor Justinian, who appointed him in 528 one of the ten commissioners directed to prepare the first Codex of imperial constitutions. ”

“ These statute law commissioners, as one may call them, set to work forthwith, and completed their task in fourteen months, distributing the constitutions which they placed in the new collection into ten books, in general conformity with the order of the Perpetual Edict as settled by Salvius Julianus and enacted by Hadrian. By this means the bulk of the statute law was immensely reduced, its obscurities and internal discrepancies in great measure removed, its provisions adapted, by the abrogation of what was obsolete, to the circumstances of Justinian’s own time. ”

“ Of these works only two remain perfect, St Sophia in Constantinople, now a mosque, and one of the architectural wonders of the world, and the church of SS Sergius and Bacchus, now commonly called Little St Sophia, which stands about half a mile from the great church, and is in its way a very delicate and beautiful piece of work. The church of S. Vitale at Ravenna, though built in Justinian’s reign, and containing mosaic pictures of him and Theodora, does not appear to have owed anything to his mind or purse. ”

“ The truth seems to be that Justinian was not a great ruler in the higher sense of the word, that is to say, a man of large views, deep insight, a capacity for forming just such plans as the circumstances needed, and carrying them out by a skilful adaptation of means to ends. ”

“ Against the evidence of Procopius, with such confirmations as have been indicated, there is to be set the silence of other writers, contemporaries like Agathias and Evagrius, as well as such later historians as Theophanes, none of whom repeat the charges as to Theodora’s life before her marriage. To this consideration no great weight need be attached. It is difficult to establish any view of the controversy without a long and minute examination of the authorities, and in particular of the Anecdota. ”

“ At Athens, the philosophers who taught in the schools hallowed by memories of Plato still openly professed what passed for Paganism, though it was really a body of moral doctrine, strongly tinged with mysticism, in which there was far more of Christianity and of the speculative metaphysics of the East than of the old Olympian religion. ”

“ Still, after making all deductions, it is plain that the man who accomplished so much, and kept the whole world so occupied, as Justinian did during the thirty-eight years of his reign, must have possessed no common abilities. ”

“ Italy was recovered for the empire, but it was an Italy terribly impoverished and depopulated, whose possession carried little strength with it. Justinian’s policy both in the Vandalic and in the Gothic War stands condemned by the result. ”

“ The best edition of the Digest is that of Mommsen (Berlin 1868–1870) , and of the Codex that of Krüger (Berlin 1875–1877) .
2. In his financial administration of the empire, Justinian is represented to us as being at once rapacious and extravagant. His unwearied activity and inordinate vanity led him to undertake a great many costly public works, many of them, such as the erection of palaces and churches, unremunerative. The money needed for these, for his wars, and for buying off the barbarians who threatened the frontiers, had to be obtained by increasing the burdens of the people. ”

“ Much of what we find in these lives is legendary, but they are some evidence of Theodora’s reputation. Again, (3) the statute (Cod., v. 4, 23) which repeals the older law so far as relates to scenicae mulieres is now generally attributed to Justin, and agrees with the statement of Procopius that an alteration of the law was made to legalize her marriage. There is therefore reason for holding that she was an actress, and, considering what the Byzantine stage was (as appears even by the statute in question) , her life cannot nave been irreproachable. ”

“ This last constitution was issued in December 533, when the Digest was promulgated as a law-book. During the progress of the work, in January 532, there broke out in Constantinople a disturbance in the hippodrome, which speedily turned to a terrible insurrection, that which goes in history by the name of Nika, the watchword of the insurgents. Tribonian was accused of having prostituted his office for the purposes of gain, and the mob searched for him to put him to death (Procop. Pers. i. 24–26) . ”

“ This was accomplished by a series of constitutions known as the “Fifty Decisions” (Quinquaginta decisiones) , along with which there were published other ordinances amending the law in a variety of points, in which old and now inconvenient rules had been suffered to subsist. Then in December 530 a new commission was appointed, consisting of sixteen eminent lawyers, of whom the president, the famous Tribonian (who had already served on the previous commission) , was an exalted official (quaestor) , four were professors of law, and the remaining eleven practising advocates. ”

“ Immense damage was inflicted by these marauders on the subjects of the empire, who seem to have been mostly too peaceable to defend themselves, and whom the emperor could not spare troops enough to protect. Fields were laid waste, villages burnt, large numbers of people carried into captivity ”

“ According to his usual practice, he issued an edict enforcing this view, and requiring all patriarchs, metropolitans, and bishops to subscribe to it. Some, who not unnaturally held that it was rank Monophysitism, refused at once, and were deprived of their sees, among them Eutychius the eminent patriarch of Constantinople. Others submitted or temporized; but before there had been time enough for the matter to be carried through, the emperor died, having tarnished if not utterly forfeited by this last error the reputation won by a life devoted to the service of Orthodoxy. ”