notice, on the accession of his successor (31). Sixty thousand plebeian legislators, whom numbers made formidable, and poverty secure, were supplanted by six hundred senators, who held their honours, their fortunes, and their lives, by the clemency of the emperor. The loss of executive power was alleviated by the gift Decrees of of legislative authority; and Ulpian might assert, after the practice the senate. of two hundred years, that the decrees of the senate obtained the force and validity of laws. In the times of freedom, the resolves of the people had often been dictated by the passion or error of the moment: the Cornelian, Pompeian, and Julian laws, were adapted by a single hand to the prevailing disorders; but the senate, under the reign of the Cæsars, was composed of magistrates and lawyers, and in questions of private jurisprudence, the integrity of their judgment was seldom perverted by fear or interest (32).

The silence or ambiguity of the laws was supplied by the occa- Edicts of the sional EDICTS of those magistrates who were invested with the ho- prætors.‡ nours of the state (33). This ancient prerogative of the Roman

(31) Tacit. Annal. i. 15. Lipsius, Excursus E. in Tacitum.*

(32) Non ambigitur senatum jus facere posse, is the decision of Ulpian (1. xvi. ad Edict. in Pandect. 1. i. tit. iii. leg. 9.). Pomponius taxes the comitia of the people as a turba hominum (Pandect. 1. i. tit. ii. leg. 9.).†

(33) The jus honorarium of the prætors and other magistrates is strictly defined in the Latin text of the Institutes (1. i. tit. ii. No. 7.), and more loosely explained in the Greek paraphrase of Theophilus (p. 33-38. edit. Reitz), who drops the important word honorarium. [|

*This error of Gibbon has been long detected. The senate, under Tiberius, did indeed elect the magistrates, which before that emperor were elected in the comitia. But we find laws enacted by the people during his reign and that of Claudius. For example; the Julia-Norbana, Vellea, and Claudia de tutela fœminarum. Compare the Hist. du Droit Romain, by M. Hugo, vol. ii. p. 55.

57.

The Comitia ceased imperceptibly as the republic gradually expired.-W.

The author adopts the opinion, that under the emperors alone the senate had a share in the legislative power. They had nevertheless participated in it under the Republic, since senatusconsulta relating to civil rights have been preserved, which are much earlier than the reigns of Augustus or Tiberius. It is true that, under the emperors, the senate exercised this right more frequently, and that the assemblies of the people had become much more rare, though in law they were still permitted, in the time of Ulpian. (See the fragments of Ulpian.) Bach has clearly demonstrated, that the senate had the same power in the time of the Republic. It is natural that the senatus-consulta should have been more frequent under the emperors, because they employed those means of flattering the pride of the senators, by granting them the right of deliberating on all affairs, which did not entrench on the imperial power. Compare the discussions of M. Hugo, vol. i. p. 284. et seq.-W.

There is a curious passage from Aurelius, a writer on Law, on the Prætorian Præfect, quoted in Lydus de Magistratibus, p. 32. edit. Hase.

The prætorian præfect was to the
the master of the horse was to the dictator under
emperor what
the Republic. He was the delegate, therefore, of
the full imperial authority; and no appeal could
be made or exception taken against his edicts.
I had not observed this passage, when the third
volume, where it would have been more appro-
priately placed, passed through the press.-M.

The author here follows the opinion of Hei-
neccius, who, according to the idea of his master
Thomasius, was unwilling to suppose that magis-
trates exercising a judicial could share in the le-
gislative power. For this reason he represents
the edicts of the prætors as absurd. (See his
work, Historia Juris Romani, 69. 74.) But Hei-
neccius had altogether a false notion of this im-
portant institution of the Romans, to which we
owe in a great degree the perfection of their ju-
risprudence. Heineccius, therefore, in his own
days had many opponents of his system, among
others the celebrated Ritter, professor at Wittem-
berg, who contested it in notes, appended to the
work of Heineccius, and retained in all subsequent
editions of that book. After Ritter, the learned
Bach undertook to vindicate the edicts of the
prætors in his Historia Jurisprud. Rom. edit. 6.
p. 218. 224. But it remained for a civilian of
our own days to throw light on the spirit and
true character of this institution. M. Hugo has
completely demonstrated that the prætorian
edicts furnished the salutary means of perpetually
harmonizing the legislation with the spirit of the
times. The prætors were the true organs of pub-
lic opinion. It was not according to their caprice

*

kings was transferred, in their respective offices, to the consuls and dictators, the censors and prætors; and a similar right was assumed by the tribunes of the people, the ediles, and the proconsuls. At Rome, and in the provinces, the duties of the subject, and the intentions of the governor, were proclaimed; and the civil jurisprudence was reformed by the annual edicts of the supreme judge, the prætor of the city. As soon as he ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the decision of doubtful cases, and the relief which his equity would afford from the precise rigour of ancient statutes. A principle of discretion more congenial to monarchy was introduced into the republic: the art of respecting the name, and eluding the efficacy, of the laws, was improved by successive prætors; subtleties and fictions were invented to defeat the plainest meaning of the Decemvirs, and where the end was salutary, the means were frequently absurd. The secret or probable

that they framed their regulations, but according to the manners, and to the opinions of the great civil lawyers of their day. We know from Cicero himself, that it was esteemed a great honour among the Romans to publish an edict, wellconceived and well-drawn. The most distinguished lawyers of Rome were invited by the prætor to assist in framing this annual law, which, according to its principle, was only a declaration which the prætor made to the public, to announce the manner in which he would judge, and to guard against every charge of partiality. Those who had reason to fear his opi'nions might delay their cause till the following

year.

The prætor was responsible for all the faults which he committed. The tribunes could lodge an accusation against the prætor who issued a partial edict. He was bound strictly to follow and to observe the regulations published by him at the commencement of his year of office, according to the Cornelian law, by which these edicts were called perpetual, and he could make no change in a regulation once published. The prætor was obliged to submit to his own edict, and to judge his own affairs according to its provisions. These magistrates had no power of departing from the fundamental laws, or the laws of the Twelve Tables. The people held them in such consideration, that they rarely enacted laws contrary to their provisions; but as some provisions were found inefficient, others opposed to the manners of the people, and to the spirit of subsequent ages, the prætors, still maintaining respect for the laws, endeavoured to bring them into accordance with the necessities of the existing time, by such fictions as best suited the nature of the case. In what legislation do we not find these fictions, which even yet exist, absurd and ridiculous as they are, among the ancient laws of modern nations? These always variable edicts at length comprehended the whole of the Roman legislature, and became the subject of the com

mentaries of the most celebrated lawyers. They must, therefore, be considered as the basis of all the Roman jurisprudence comprehended in the Digest of Justinian.

It is in this sense that M. Schrader has written on this important institution, proposing it for imitation as far as may be consistent with our manners, and agreeable to our political institutions, in order to avoid immature legislation becoming a permanent evil. See the History of the Roman Law by M. Hugo, vol. i. p. 296, &c. vol. iii. p. 30. et seq. 78. et seq. and the note in my elementary book on the Institutes, p. 313. With regard to the works best suited to give information on the framing and the form of these edicts, see Haubold, Institutiones Literariæ, t. i. p. 321.368.

All that Heineccius says about the usurpation of the right of making these edicts by the prætors is false, and contrary to all historical testimony. A multitude of authorities proves that the magistrates were under an obligation to publish these edicts.-W.

With the utmost deference for these excellent civilians, I cannot but consider this confusion of the judicial and legislative authority as a very perilous constitutional precedent. It might answer among a people so singularly trained as the Romans were by habit and national character in reverence for legal institutions so as to be an aristocracy, if not a people, of legislators; but in most nations the investiture of a magistrate in such authority, leaving to his sole judgment the lawyers he might consult, and the view of public opinion which he might take, would be a very insufficient guarantee for right legislation.-M.

* Compare throughout the brief but admirable sketch of the progress and growth of the Roman jurisprudence, the necessary operation of the jus gentium, when Rome became the sovereign of nations upon the jus civile of the citizens of Rome, in the first chapter of Savigny, Geschichte des Römischen Rechts im Mittel-alter.— M.

wish of the dead was suffered to prevail over the order of succession and the forms of testaments; and the claimant, who was excluded from the character of heir, accepted with equal pleasure from an indulgent prætor the possession of the goods of his late kinsman or benefactor. In the redress of private wrongs, compensations and fines were substituted to the obsolete rigour of the Twelve Tables; time and space were annihilated by fanciful suppositions; and the plea of youth, or fraud, or violence, annulled the obligation, or excused the performance, of an inconvenient contract. A jurisdiction thus vague and arbitrary was exposed to the most dangerous abuse: the substance, as well as the form of justice, were often sacrificed to the prejudices of virtue, the bias of laudable affection, and the grosser seductions of interest or resentment. But the errors or vices of each prætor expired with his annual office; such maxims alone as had been approved by reason and practice were copied by succeeding judges; the rule of proceeding was defined by the solution of new cases; and the temptations of injustice were removed by the Cornelian law, which compelled the prætor of the year to adhere to the letter and spirit of his first proclamation (34). It was reserved for the curiosity and learning of Hadrian, to accomplish the design which had been conceived by the genius of Cæsar; and the prætorship of Salvius Julian, an eminent lawyer, was immortalised by the composition of the PERPETUAL EDICT. This well-digested code was The perpetual ratified by the emperor and the senate; the long divorce of law and equity was at length reconciled; and, instead of the Twelve Tables, the perpetual edict was fixed as the invariable standard of civil jurisprudence (35).

(34) Dion Cassius (tom. i. 1. xxxvi. p. 100.) fixes the perpetual edicts in the year of Rome 686. Their institution, however, is ascribed to the year 585 in the Acta Diurna, which have been published from the papers of Ludovicus Vives. Their authenticity is supported or allowed by Pighius (Annal. Roman. tom. ii. p. 377, 378.), Grævius (ad Sueton. p. 778.), Dodwell (Prælection. Cambden, p. 665.), and Heineccius : but a single word, Scutum Cimbricum, detects the forgery (Moyle's Works, vol. i. p. 303.).

(35) The history of edicts is composed, and the text of the perpetual edict is restored, by the master-hand of Heineccius (Opp. tom. vii. P. ii. p. 1–564.);* in whose researches I might safely acquiesce. In the Academy of Inscriptions, M. Bouchaud has given a series of memoirs to this interesting subject of law and literature.+

* This restoration was only the commencement of a work found among the papers of Heineccius, and published after his death. G.

Gibbon has here fallen into an error, with Heineccius, and almost the whole literary world, concerning the real meaning of what is called the perpetual edict of Hadrian. Since the Cornelian law, the edicts were perpetual, but only in this sense, that the prætor could not change them during the year of his magistracy. And although it appears that under Hadrian, the civilian Julianus made, or assisted in making, a complete collection of the edicts (which certainly had been done likewise before Hadrian, for example, by Ofilius, qui diligenter edictum composuit), we

have no sufficient proof to admit the common
opinion, that the prætorian edict was declared
perpetually unalterable by Hadrian. The writers
on law subsequent to Hadrian (and among the
rest, Pomponius, in his Summary of the Roman
Jurisprudence), speak of the edict as it existed in
the time of Cicero. They would not certainly
have passed over in silence so remarkable a
change in the most important source of the civil
law, M. Hugo has conclusively shown that the
various passages in authors, like Eutropius, are
not sufficient to establish the opinion introduced
by Heineccius. Compare Hugo, vol. ii. p. 78.
A new proof of this is found in the Institutes of
Gaius, who, in the first books of his work, ex-

edict.

of the ¡emperors.

Constitutions From Augustus to Trajan, the modest Cæsars were content to promulgate their edicts in the various characters of a Roman magistrate; and, in the decrees of the senate, the epistles and orations of the prince were respectfully inserted. Hadrian (36) appears to have been the first who assumed, without disguise, the plenitude of legislative power. And this innovation, so agreeable to his active mind, was countenanced by the patience of the times, and his long absence from the seat of government. The same policy was embraced by succeeding monarchs, and, according to the harsh metaphor of Tertullian, "the gloomy and intricate forest of ancient laws was cleared away by the axe of royal mandates and constitu"tions (37)." During four centuries, from Hadrian to Justinian, the public and private jurisprudence was moulded by the will of the sovereign; and few institutions, either human or divine, were permitted to stand on their former basis. The origin of Imperial legislation was concealed by the darkness of ages and the terrors of armed despotism; and a double fiction was propagated by the servility, or perhaps the ignorance, of the civilians, who basked in the sunshine of the Roman and Byzantine courts. 1. To the prayer of the ancient Cæsars, the people or the senate had sometimes granted a personal exemption from the obligation and penalty of particular statutes; and each indulgence was an act of jurisdiction exercised

66

(36) His laws are the first in the Codc. See Dodwell (Prælect. Cambden, p. 319-340.), who wanders from the subject in confused reading and feeble paradox.t

(37) Tolam illam veterem et squallentem sylvam legum novis principalium rescriptorum et edictorum securibus truncatis et cæditis (Apologet. c. 4. p. 50. edit. Havercamp.). He proceeds to praise the recent firmness of Severus, who repealed the useless or pernicious laws, without any regard to their age or authority.

presses himself in the same manner, without
mentioning any change made by Hadrian. Ne-
vertheless, if it had taken place, he must have
noticed it, as he does 1. i. 8. the responsa pru-
dentum, on the occasion of a rescript of Hadrian.
There is no lacuna in the text. Why then should
Gaius maintain silence concerning an innovation
so much more important than that of which he
speaks? After all, this question becomes of slight
interest, since, in fact, we find no change in the
perpetual edict inserted in the Digest, from the
time of Hadrian to the end of that epoch, except
that made by Julian (compare Hugo, l. c.). The
later lawyers appear to follow, in their commen-
taries, the same text as their predecessors. It is
natural to suppose, that, after the labours of so
many men, distinguished in jurisprudence, the
framing of the edict must have attained such
perfection, that it would have been difficult to
have made any innovation. We nowhere find
that the jurists of the Pandects disputed con-
cerning the words, or the drawing up of the
edict.

What difference would, in fact, result from this
with regard to our codes, and our modern legisla-
tion? Compare the learned Dissertation of M.
Biener, De Salvii Juliani meritis in Edictum Præ-
torium recte æstimandis. Lipsiæ, 1809, 4to.-W.

*It is an important question in what manner the emperors were invested with this legislative power. The newly discovered Gaius, distinctly states that it was in virtue of a law. - Nec unquam dubitatum est, quin id legis vicem obtineat, cum ipse imperator per legem imperium accipiat. But it is still uncertain whether this was a general law, passed on the transition of the government from a republican to a monarchical form, or a law passed on the accession of each emperor. Compare Hugo, Hist. du Droit Romain (French translation), vol. ii. p. 8.-M.

This is again an error which Gibbon shares with Heineccius, and the generally of authors. It arises from having mistaken the insignificant edict of Hadrian, inserted in the Code of Justinian (lib. vi. tit. xxiii. c. 11.), for the first constitutio principis, without attending to the fact, that the Pandects contain so many constitutions of the emperors, from Julius Cæsar (see 1. i. Digest 29. 1.). M. Hugo justly observes, that the acta of Sylla, approved by the senate, were the same thing with the constitutions of those who after him usurped the sovereign power. Moreover, we find that Pliny, and other ancient authors, report a multitude of rescripts of the emperors from the time of Augustus. See Hugo, Hist. du Droit Romain, vol. ii. p. 24. 27.-W.

by the republic over the first of her citizens. His humble privilege was at length transformed into the prerogative of a tyrant; and the Latin expression of "released from the laws (38)" was supposed to exalt the emperor above all human restraints, and to leave his conscience and reason as the sacred measure of his conduct. 2. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elective magistrate. But it was not before the ideas, and even the language, of the Romans had been corrupted, that a royal law (39), and an irrevocable gift of the people, were created by the fancy of Ulpian, or more probably of Tribonian himself (40); and the origin of Imperial power, though false in fact, and slavish in its consequence, was supported on a principle of freedom and justice. "The pleasure "of the emperor has the vigour and effect of law, since the Roman "people, by the royal law, have transferred to their prince the full "extent of their own power and sovereignty (41)." The will of a single man, of a child perhaps, was allowed to prevail over the wisdom of ages and the inclinations of millions; and the degenerate Greeks were proud to declare, that in his hands alone the arbitrary exercise of legislation could be safely deposited. "What interest "or passion," exclaims Theophilus in the court of Justinian, "can "reach the calm and sublime elevation of the monarch? he is already master of the lives and fortunes of his subjects; and those "who have incurred his displeasure are already numbered with the "dead (42)." Disdaining the language of flattery, the historian may confess, that in questions of private jurisprudence, the absolute sovereign of a great empire can seldom be influenced by any personal considerations. Virtue, or even reason, will suggest to his impartial mind, that he is the guardian of peace and equity, and that the interest of society is inseparably connected with his own. Under the weakest and most vicious reign, the seat of justice was

66

(38) The constitutional style of Legibus Solutus is misinterpreted by the art or ignorance of Dion Cassius (tom. i. 1. liii. p. 713.). On this occasion his editor, Reimar, joins the universal censure which freedom and criticism have pronounced against that slavish historian.

(39) The word (Lex Regia) was still more recent than the thing. The slaves of Commodus or Caracalla would have started at the name of royalty.*

(40) See Gravina (Opp. p. 501-512.) and Beaufort (République Romaine, tom.i. p. 255-274.). He has made a proper use of two dissertations by John Frederic Gronovius and Noodt, both translated, with valuable notes, by Barbeyrac, 2 vols. in 12mo. 1731.

(41) Institut. 1. i. tit. ii. No. 6. Pandect. l. i. tit. iv. leg. 1. Cod. Justinian, 1. i. tit. xvii. leg. 1. No. 7. In his Antiquities and Elements, Heineccius has amply treated de constitutionibus principum, which are illustrated by Godefroy (Comment. ad Cod. Theodos. 1. i. tit. i. ii. iii.) and Gravina (p. 87-90.).†

(42) Theophilus, in Paraphras. Græc. Institut. p. 33, 34. edit. Reitz. For his person, time, writings, see the Theophilus of J. H. Mylius, Excurs. iii. p. 1034–1073.

* Yet a century before, Domitian was called, not only by Martial, but even in public documents, Dominus et Deus Noster. Sueton. Domit. cap. 13. Hugo.-W.

Gaius (see note *, p. 244.) asserts that the imperial edict or rescript has, and always had, the

force of law, because the imperial authority rests
upon law. Constitutio principis est, quod impe-
rator decreto vel edicto, vel epistola constituit,
nec unquam dubitatum, quin id legis vicem ob-
tineat, cum ipse imperator per legem imperium
accipiat. Gaius, 6. Instit. i. 2.-M.

Their

legislative

power.