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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 præfects or their deputies, with the administration of justice and the finances in their respective districts. The ponderous volumes of the Codes and Pandects 119 would furnish ample materials for a minute inquiry into the system of provincial government, as in the space of six centuries it was improved by the wisdom of the Roman statesmen 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 authorized 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 præfects, who alone could impose the heavy fine of fifty pounds of gold: their vicegerents were confined to the trifling weight of a few ounces. 120 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

119 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.

120 The presidents, or consulars, could impose only two ounces; the vice-præfects, three; the proconsuls, count of the east, and præfect of Egypt, six. See Heineccii Jur. Civil. tom. i. p. 75. Pandect. 1. xlviii. tit. xix. n. 8. Cod. Justinian. I. i. tit. liv. leg. 4, 6. [The name praesides came in when Gallienus excluded senators from governorships of imperial provinces and appointed knights. The title correctores was first used in Italy. Cp. above, vol. i., App. 20.]

The profession of the law

and impartial tribunal of the Prætorian præfect. 2. As it was reasonably apprehended that the integrity of the judge might be biassed, if his interest was concerned or his affections were engaged; the strictest regulations were established to exclude any person, without the special dispensation of the emperor, from the government of the province where he was born;121 and to prohibit the governor or his son from contracting marriage with a native or an inhabitant; 122 or from purchasing slaves, lands, or houses, within the extent of his jurisdiction. 123 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 dispatch 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 important laws and ineffectual menaces, 124

All the civil magistrates were drawn from the profession of the law. The celebrated Institutes of Justinian 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 adequate share in the government of the republic.125 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,126 on the coast of Phoenicia; which flourished above

121 Ut nulli patriæ suæ administratio sine speciali principis permissu permittatur. Cod. Justinian. i. i. tit. xli. This law was first enacted by the emperor Marcus, after the rebellion of Cassius (Dion. 1. lxxi.). The same regulation is observed in China, with equal strictness and with equal effect.

122 Pandect. 1. xxiii. tit. ii. n. 38, 57, 63.

123 In jure continetur, ne quis in administratione constitutus aliquid compararet. Cod. Theod. 1. 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 offices 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.

124 Cessent rapaces jam nunc officialium manus; cessent, inquam; nam si moniti non cessaverint, gladiis præcidentur, &c. Cod. Theod. 1. i. tit. vii. leg. 1. Zeno enacted that all governors should remain in the province, to answer any accusations, fifty days after the expiration of their power. Cod. Justinian. 1. ii. tit. xlix. leg. 1. 125 Summâ igitur ope, et alacri studio has leges nostras 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.

126 The splendour of the school of Berytus, which preserved in the east the

three centuries from the time of Alexander Severus, the author I 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 Prætorian præfect 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. 127 In 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. 351-356. 127 As 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 Prætorian præfect. 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-præfect, of Macedonia. 4. Quæstor. 5. Count of the sacred largesses. 6. Prætorian præfect 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 Prætorian præfect 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 prætorian præfect 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 of St. Augustín. See Tillemont, Hist. des Emp. tom. v. p. 1110-1114. [Inscriptions supply us with more illustrations of official careers under the Constantinian monarchy. The career of Caelius Saturninus (C. I. L. 6, 1704) occasioned an important study by Mommsen in the Memorie d. Institut. d. corr. arch. ii. 299; and that of L. Aradius Valerius Proculus is recorded fully in C. I. L. 6. 1690 and 1691. Proculus began his career apparently as one of the legati subordinate to the proconsul of Africa (this is Mommsen's explanation of legato pro præt. prov. Numidiae). He was then sent to Gallicia to revise the taxation (as peraequator census); after which he became governor successively of Byzacena; Europe and Thrace (temporarily combined); and Sicily; then proconsul of Africa. He finally attained to the prætorian prefecture and the prefecture of the City of Rome. We know from other sources that he was præf. urbi in 337, and ordinary consul in 340 A.D. The career constantly began with the post of advocatus fisci (Caelius Saturninus is an instance) or of advocate in the ordinary law-courts.]

The military officer

practice of the bar, these men had considered reason as the instrument of dispute; 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,128 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 truth 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 ignorant and rapacious guides, who conducted their clients through a maze of expense, of delay, and of disappointment; from whence, after a tedious series of years, they were at length dismissed, when their patience and fortune were almost exhausted.129

III. In the system of policy introduced by Augustus, the governors, those at least of the Imperial provinces, were invested with the full powers of the sovereign himself. Ministers of peace and war, the distribution of rewards and punishments depended on them alone, and they successively appeared on their tribunal in the robes of civil magistracy, and in complete armour at the head of the Roman legions, 130 The influence of

128 Mamertinus in Panegyr. Vet. xi. 20. Asterius apud Photium, p. 1500. 129 The curious passage of Ammianus (1. xxx. c. 4), in which he paints the manners of contemporary lawyers, affords a strange mixture of sound sense, false rhetoric, and extravagant satire. Godefroy (Prolegom. ad Cod. Theod. c. i. p. 185) supports the historian by similar complaints and authentic facts. In the fourth century, many camels might have been laden with law-books. Eunapius in Vet. Edesii, p. 72. [The advocate (also called iuris peritus and scholasticus) in the new Monarchy takes the place which under the Principate was filled by the iuris consultus, from whom the old advocatus was carefully distinguished.]

130 See a very splendid example in the Life of Agricola, particularly c. 20, 21. The lieutenant of Britain was intrusted with the same powers which Cicero, proconsul of Cilicia, had exercised in the name of the senate and people.

the revenue, the authority of law, and the command of a military force concurred to render their power supreme and absolute; and whenever they were tempted to violate their allegiance, the loyal province which they involved in their rebellion was scarcely sensible of any change in its political state. From the time of Commodus to the reign of Constantine, near one hundred governors might be enumerated, who, with various success, erected the standard of revolt; and though the innocent were too often sacrificed, the guilty might be sometimes prevented, by the suspicious cruelty of their master, 181 To secure his throne and the public tranquillity from these formidable servants, Constantine resolved to divide the military from the civil administration; and to establish, as a permanent and professional distinction, a practice which had been adopted only as an occasional expedient. The supreme jurisdiction exercised by the Prætorian præfects over the armies of the empire was transferred to the two masters general whom he instituted, the one for the cavalry, the other for the infantry; and, though each of these illustrious officers was more peculiarly responsible for the discipline of those troops which were under his immediate inspection, they both indifferently commanded in the field the several bodies, whether of horse or foot, which were united in the same army.1 132 Their number was soon doubled by the division of the east and west; and, as separate generals of the same rank and title were appointed on the four important frontiers of the Rhine, of the Upper and the Lower Danube, and of the Euphrates, the defence of the Roman empire was at length committed to eight masters general of the cavalry and infantry. Under their orders, thirty-five military commanders were stationed in the provinces: three in Britain, six in Gaul, one in Spain, one in Italy, five on the Upper, and four on the Lower Danube; in Asia eight, three in Egypt, and four in

131 The Abbé Dubos, who has examined with accuracy (see Hist. de la Monarchie Françoise, tom. i. p. 47-100, edit. 1742) the institutions of Augustus and of Constantine, observes that, if Otho had been put to death the day before he executed his conspiracy, Otho would now appear in history as innocent as Corbulo.

132 Zosimus, 1. ii. p. 110 [33]. Before the end of the reign of Constantius, the magistri militum were already increased to four. See Valesius ad Ammian. 1. xvi. c. 7. [We first meet magistri militum about 315 (Cod. Theod. ii. i. 1). The titles mag. ped. and mag. eq. survived in the west, but were superseded in the east by the titles mag. utriusque militiae or mag. eq. et ped. The masters who were in attendance at the imperial court were distinguished from those stationed on the frontiers by the addition in praesenti. For the increase of the number of magistri between Constantius and the time of the Notitia cf. Ammianus, xxvi. 5, and Zosimus, iv. 27.]

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