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were governed by twelve vicars, or vice-profects," whose name sufficiently explains the nature and dependence of their office. It may be added, that the lieutenant-generals of the Roman armies, the military counts and dukes, who will be hereafter mentioned, were allowed the rank and title of Respectable. As the spirit of jealousy and ostentation prevailed The go- f in the councils of the emperors, they proceeded with so anxious diligence to divide the substance and to mul-" tiply the titles of power. The vast countries which the Roman conquerors had united under the same simple form of administration, were imperceptibly crumbled into minute fragments; till at length the whole empire was distributed into one hundred and sixteen provinces, each of which supported an expensive and splendid establishment. Of these, three were governed by proconsuls, thirty-seven by consulars, five by correctors, and seventy-one by presidents. The appellations of these magistrates were different; they ranked in successive order, the ensigns of their dignity were curiously varied, and their situation, from accidental circumstances, might be more or less agreeable or advantageous. But they were all (excepting only the proconsuls) alike included in the class of honourable persons; and they were alike intrusted, during the pleasure of the prince, and under the authority of the praefects or their deputies, with the administration of justice and the finances in their respective districts. The ponderous volumes of the Codes and Pandects' would furnish ample materials for a minute inquiry into the system of provincial government, as in the space of six centuries
* In Italy there was likewise the Vicar of Rome. It has been much disputed, whether his jurisdiction measured one hundred miles from the city, or whether it stretched over the ten southern provinces of Italy.
* Among the works of the celebrated Ulpian, there was one in ten books, concerning the office of a proconsul, whose duties in the most essential articles were the same as those of an ordinary governor of a province.
CHAP. it was improved by the wisdom of the Roman states
men and lawyers. It may be sufficient for the historian to select two singular and salutary provisions, intended to restrain the abuse of authority. 1. For the preservation of peace and order, the governors of the provinces were armed with the sword of justice. They inflicted corporal punishments, and they exercised, in capital offences, the power of life and death. But they were not authorised to indulge the condemned criminal with the choice of his own execution, or to pronounce a sentence of the mildest and most honourable kind of exile. These prerogatives were reserved to the praefects, who alone could impose the heavy fine of fifty pounds of gold: their vicegerents were confined to the trifling weight of a few ounces.” This distinction, which seems to grant the larger, while it denies the smaller degree of authority, was founded on a very rational motive. The smaller degree was infinitely more liable to abuse. The passions of a provincial magistrate might frequently provoke him into acts of oppression, which affected only the freedom or the fortunes of the subject; though, from a principle of prudence, perhaps of humanity, he might still be terrified by the guilt of innocent blood. It may likewise be considered, that exile, considerable fines, or the choice of an easy death, relate more particularly to the rich and the noble; and the persons the most exposed to the avarice or resentment of a provincial magistrate were thus removed from his obscure persecution to the more august and impartial tribunal of the Praetorian praefect. 2. As it was reasonably apprehended that the integrity of the judge might be biassed, if his interest was concerned, or his affections were en- CHAP. gaged; the strictest regulations were established, to XVII. exclude any person, without the special dispensation of the emperor, from the government of the province where he was born;" and to prohibit the governor or his son from contracting marriage with a native, or an inhabitant;" or from purchasing slaves, lands, or houses, within the extent of his jurisdiction." Notwithstanding these rigorous precautions, the emperor Constantine, after a reign of twenty-five years, still deplores the venal and oppressive administration of justice, and expresses the warmest indignation that the audience of the judge, his despatch of business, his seasonable delays, and his final sentence, were publicly sold, either by himself or by the officers of his court. The continuance, and perhaps the impunity, of these crimes, is attested by the repetition of imotent laws, and ineffectual menaces." All the civil magistrates were drawn from the pro-oo: fession of the law. The celebrated Institutes of Jus- the law. tinian are addressed to the youth of his dominions, who had devoted themselves to the study of Roman jurisprudence; and the sovereign condescends to animate their diligence, by the assurance that their skill and ability would in time be rewarded by an
j The presidents, or consulars, could impose only two ounces; the vice-praefects, three; the proconsuls, count of the east, and praefect of Egypt, six. See Heineccii Jur. Civil. tom. i. p. 75. Pandect. l. xlviii. tit. xix. n. 8. Cod. Justinian. l. i. tit, liv, leg. 4, 6.
* Ut nulli patriae suae administratio sine speciali principis permissu permittatur. Cod. Justinian. l. i. tit. xli. This law was first enacted by the emperor Marcus, after the rebellion of Cassius (Dion. l. lxxi.) The same regulation is observed in China, with equal strictness, and with equal effect. Pandect. l. xxiii. tit. ii. n. 38.57. 63.
* In jure continetur, ne quis in administratione constitutus aliquid compararet. Cod. Theod. l. viii. tit.xv, leg. 1. This maxim of common law was enforced by a series of edicts (see the remainder of the title) from Constantine to Justin. From this prohibition, which is extended to the meanest officers of the governor, they except only clothes and provisions. The purchase within five years may be recovered; after which, on information, it devolves to the treasury.
* Cessent rapaces jam nunc officialium manus; cessent, inquam; nam si moniti non cessaverint, gladiis praecidentur, &c. Cod. Theod. l. i. tit. vii. leg. i. Zeno enacted, that all governors should remain in the province, to answer any accusations, fifty days after the expiration of their power. Cod. Justinian. l. ii. tit. xlix. leg. 1.
adequate share in the government of the republic.” The rudiments of this lucrative science were taught in all the considerable cities of the East and West; but the most famous school was that of Berytus,” on the coast of Phoenicia; which flourished above three centuries from the time of Alexander Severus, the author perhaps of an institution so advantageous to his native country. After a regular course of education, which lasted five years, the students dispersed themselves through the provinces, in search of fortune and honours; nor could they want an inexhaustible supply of business in a great empire, already corrupted by the multiplicity of laws, of arts, and of vices. The court of the Praetorian praefect of the East could alone furnish employment for one hundred and fifty advocates, sixty-four of whom were distinguished by peculiar privileges, and two were annually chosen with a salary of sixty pounds of gold, to defend the causes of the treasury. The first experiment was made of their judicial talents, by appointing them to act occasionally as assessors to the magistrates; from thence they were often raised to preside in the tribunals before which they had pleaded. They obtained the government of a province; and, by the aid of merit, of reputation, or of favour, they ascended, by successive steps, to the illustrious dignities of the state." In the practice of the bar, these • Summâ igitur ope, et alacri studio has leges mostras accipite; et vosmetipsos sic eruditos ostendite, ut spes vos pulcherrima foveat; toto legitimo opere perfecto, posse etiam nostram rempublicam in partibus ejus vobis credendis gubernari. Justinian. in proem. Institutionum. P The splendour of the school of Berytus, which preserved in the east the language and jurisprudence of the Romans, may be computed to have lasted from the third to the middle of the sixth century. Heinecc. Jur. Rom. Hist. p. 351 * in a former period I have traced the civil and military promotion of Pertinax, I shall here insert the civil honours of Mallius Theodorus. 1. He was distinguished by his eloquence, while he pleaded as an advocate in the court of the Praetorian praefect. 2. He governed one of the provinces of Africa, either as
president or consular, and deserved, by his administration, the honour of a brass statue. 3. He was appointed vicar, or vice-praefect of Macedonia. 4. Quaestor. 5. Count of the sacred largesses. 6. Praetorian praefect of the Gauls; whilst he might yet be represented as a young man. 7. After a retreat, perhaps a disgrace, of many years, which Mallius (confounded by some critics with the poet Manilius, see Fabricius Bibliothec. Latin. Edit. Ernest. tom. i. c. 18. p. 501) employed in the study of the Grecian philosophy, he was named Praetorian praefect of Italy, in the year 397. 8. While he still exercised that great office, he was created, in the year 399, consul for the West; and his name, on account of the infamy of his colleague, the eunuch Eutropius, often stands alone in the Fasti. 9. In the year 408, Mallius was appointed a second time Praetorian praefect of Italy. Even in the venal panegyric of Claudian, we may discover the merit of Mallius Theodorus, who, by a rare felicity, was the intimate friend both of Symmachus and St. Augustin. See Tillemont, Hist, des Emp. tom. v. 1110–1114. • Mamertinus in Panegyr. Vet. xi. 20. Asterius apud Photium, p. 1500.
men had considered reason as the instrument of dis- CHAP.
pute; they interpreted the laws according to the dictates of private interest; and the same pernicious habits might still adhere to their characters in the public administration of the state. The honour of a liberal profession has indeed been vindicated by ancient and modern advocates, who have filled the most important stations, with pure integrity, and consummate wisdom: but in the decline of Roman jurisprudence, the ordinary promotion of lawyers was pregnant with mischief and disgrace. The noble art, which had once been preserved as the sacred inheritance of the patricians, was fallen into the hands of freedmen and plebeians,' who, with cunning rather than with skill, exercised a sordid and pernicious trade. Some of them procured admittance into families for the purpose of fomenting differences, of encouraging suits, and of preparing a harvest of gain for themselves or their brethren. Others, recluse in their chambers, maintained the dignity of legal professors, by furnishing a rich client with subtleties to confound the plainest truths, and with arguments to colour the most unjustifiable pretensions. The splendid and popular class was composed of the advocates, who filled the Forum with the sound of their turgid and loquacious rhetoric. Careless of fame and of justice, they are described, for the most part, as
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