guise 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 "constitutions." 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 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 37 Totam illam veterem et squalentem silvam 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 He proceeds to praise the recent firmness of Severus, who repealed the useless or pernicious laws, without any regard to their age or authority. a 38 The constitutional style of Legibus solutus is misinterpreted by the art or ignorance of Dion Cassius (tom. i. 1. liii. [c. 18] 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 Frederick Gronovius and Noodt, both translated, with valuable notes, by Barbeyrac, 2 vols. in 12mo. 1731. ■ It seems certain that the expression Legibus solutus only meant "released from particular laws." See the following note respecting the Lex de Imperio Vespasiani.-S. Their legislative power. ❝ 66 41 "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." 4: a 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 filled by the wisdom and integrity of Papinian and Ulpian,43 and the purest materials of the Code and Pandects are inscribed with the names of Caracalla and his ministers.44 The tyrant of Rome was sometimes the benefactor of the provinces. A dagger terminated the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate.1 Yet in the rescripts,46 replies to the consultations of the magistrates, Their rescripts. 45 41 Institut. 1. i. tit. ii. No. 6; Pandect. 1. 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. 43 There is more envy than reason in the complaint of Macrinus (Jul. Capitolin. c. 13). Nefas esse leges videri Commodi et Caracallæ et hominum imperitorum voluntates. Commodus was made a Divus by Severus (Dodwell, Prælect. viii. p. 324, 325). Yet he occurs only twice in the Pandects. 44 Of Antoninus Caracalla alone 200 constitutions are extant in the Code, and with his father 160. These two princes are quoted fifty times in the Pandects and eight in the Institutes (Terrasson, p. 265). 45 Plin. Secund. Epistol. x. 66; Sueton. in Domitian. c. 23. 46 It was a maxim of Constantine, contra jus rescripta non valeant (Cod. Theodos. a Imperial authority and legislative power were conferred even upon the early emperors by a law called Lex Imperii, or Lex de Imperio. Hence Gaius says (1. i. §5), "cum ipse Imperator per legem imperium accipiat.' A considerable fragment of the Lex de Imperio Vespasiani is still preserved at Rome. This Lex empowers Vespasian to make treaties, to originate Senatus-consulta, to propose persons to the people and the senate to be elected to magistracies, to extend the Pomorium, to make constitutions or edicts which should have the force of law, and to be released from the same laws from which Augustus, Claudius, and Tiberius were released. It was this Lex Imperii which was called Lex Regia under the later emperors. See Dict. of Antiq. p. 697, 2nd ed.-S. the wisest of princes might be deceived by a partial exposition of the case. And this abuse, which placed their hasty decisions on the same level with mature and deliberate acts of legislation, was ineffectually condemned by the sense and example of Trajan. The rescripts of the emperor, his grants and decrees, his edicts and pragmatic sanctions, were subscribed in purple ink," and transmitted to the provinces as general or special laws, which the magistrates were bound to execute and the people to obey. But as their number continually multiplied, the rule of obedience became each day more doubtful and obscure, till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes. The two first, of which some fragments have escaped, were framed by two private lawyers to preserve the constitutions of the Pagan emperors from Hadrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained an equal authority in the tribunals, and any act which was not included in the sacred deposit might be disregarded by the judge as spurious or obsolete.48 Among savage nations the want of letters is imperfectly supplied by the use of visible signs, which awaken attention and per- Forms of petuate the remembrance of any public or private transac- the Roman tion. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the law. 1. i. tit. ii. leg. 1). The emperors reluctantly allow some scrutiny into the law and the fact, some delay, petition, &c.; but these insufficient remedies are too much in the discretion and at the peril of the judge. 47 A compound of vermilion and cinnabar, which marks the Imperial diplomas from Leo I. (A.D. 470) to the fall of the Greek empire (Bibliothèque Raisonnée de la Diplomatique, tom. i. p. 509-514; Lami, de Eruditione Apostolorum, tom. ii. p. 720726). 48 Schulting, Jurisprudentia Ante-Justinianea, p. 681-718. Cujacius assigned to Gregory the reigns from Hadrian to Gallienus, and the continuation to his fellowlabourer Hermogenes. This general division may be just, but they often trespassed on each other's ground. a Savigny states the following as the authorities for the Roman law at the commencement of the fifth century: 1. The writings of the jurists according to the regulations of the Constitution of Valentinian the Third, first promulgated in the West, but by its admission into the Theodosian Code established likewise in the East. (This Constitution established the authority of the five great jurists, Papinian, Paulus, Caius, Ulpian, and Modestinus, as interpreters of the ancient law. *** In case of difference of opinion among these five, a majority decided the case; where they were equal, the opinion of Papinian; where he was silent, the judge: but see p. 40, and Hugo, vol. ii. p. 89.) 2. The Gregorian and Hermogenian Collection of the Imperial Rescripts. 3. The Code of Theodosius the Second. 4. The particular Novellæ, as additions and supplements to this Code. Savigny, vol. i. p. 10.—-M. marriage-life was denoted by the necessary elements of fire and water;49 and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son or a slave was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clenched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and scales were introduced into every payment; and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap and dance with real or affected transport.50 If a citizen pursued any stolen goods into a neighbour's house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should encounter the eyes of a virgin or a matron.51 In a civil action, the plaintiff touched the ear of his witness, seized his reluctant adversary by the neck, and implored, in solemn lamentation, the aid of his fellow-citizens. The 49 Scævola, most probably Q. Cervidius Scævola, the master of Papinian, considers this acceptance of fire and water as the essence of marriage (Pandect. 1. xxiv. tit. 1, leg. 66. See Heineccius, Hist. J. R. No. 317). 50 Cicero (de Officiis, iii. 19) may state an ideal case, but St. Ambrose (de Officiis, iii. 2) appeals to the practice of his own times, which he understood as a lawyer and a magistrate (Schulting ad Ulpian. Fragment. tit. xxii. No. 28, p. 643, 644 [Jurispr. Ante-Justin.]). 51 The furtum lance licioque conceptum was no longer understood in the time of the Antonines (Aulus Gellius, xvi. 10). The Attic derivation of Heineccius (Antiquitat. Rom. 1. iv. tit. i. No. 13-21) is supported by the evidence of Aristophanes, his scholiast, and Pollux.b a In this passage the author has endeavoured to collect all the examples of judicial formularies which he could find. That which he adduces as the form of cretio hereditatis is absolutely false. It is sufficient to glance at the passage in Cicero which he cites to see that it has no relation to it. The author appeals to the opinion of Schulting, who, in the passage quoted, himself protests against the ridiculous and absurd interpretation of the passage in Cicero, and observes that Grævius had already well explained the real sense. See in Gaius the form of cretio hereditatis, Instit. 1. ii. § 166.-W. b Nothing more is known of this ceremony; nevertheless we find that already in his own days Gaius turned it into ridicule. He says (lib. iii. § 192, 193), prohibiti actio quadrupli ex edicto prætoris introducta est; lex autem eo nomine nullam pœnam constituit. Hoc solum præcepit, ut qui quærere velit, nudus quærat, linteo cinctus, lancem habens; qui si quid invenerit, jubet id lex furtum manifestum esse. Quid sit autem linteum, quæsitum est. Sed verius est, consuti genus esse, quo necessariæ partes tegerentur. Quare lex tota ridicula est. Nam qui vestitum quærere prohibet, is et nudum quærere prohibiturus est; eo magis, quod ita quæsita res inventa majori pœnæ subjiciatur. Deinde quod lancem sive ideo haberi jubeat, ut manibus occupatis nihil subjiciatur, sive ideo, ut quod invenerit, ibi imponat, neutrum eorum procedit, si id, quod quæratur, ejus magnitudinis aut naturæ sit ut neque subjici, neque ibi imponi possit. Certe non dubitatur, cujuscunque materiæ sit ea lanx, satis legi fieri. We see, moreover, from this passage, that the basin, as most authors, resting on the authority of Festus, have supposed, was not used to cover the face.-W. See Grimm, Von der Poesie in Recht, Zeitschrift für geschichtliche Rechtswissenschaft, vol. ii.-S. two competitors grasped each other's hand as if they stood prepared for combat before the tribunal of the prætor; he commanded them to produce the object of the dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended. This occult science of the words and actions of law was the inheritance of the pontiffs and patricians. Like the Chaldæan astrologers, they announced to their clients the days of business and repose; these important trifles were interwoven with the religion of Numa, and after the publication of the Twelve Tables the Roman people was still enslaved by the ignorance of judicial proceedings. The treachery of some plebeian officers at length revealed the profitable mystery; in a more enlightened age the legal actions were derided and observed, and the same antiquity which sanctified the practice, obliterated the use and meaning, of this primitive language. 52 lawyers. A more liberal art was cultivated, however, by the sages of Rome, who, in a stricter sense, may be considered as the authors Succession of the civil law. The alteration of the idiom and manners of the civil of the Romans rendered the style of the Twelve Tables less familiar to each rising generation, and the doubtful passages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circumscribe the latitude, to apply the principles, to extend the consequences, to reconcile the real or apparent contradictions, was a much nobler and more important task; and the province of legislation was silently invaded by the expounders of ancient statutes. Their subtle interpretations concurred with the equity of the prætor to reform the tyranny of the darker ages; however strange or intricate the means, it was the aim of artificial jurisprudence to restore the simple dictates of nature and reason, and the skill of private citizens was usefully employed to undermine the public institutions of their country. The revolution of almost one thousand years, from the Twelve Tables to the reign of Justinian, may be 52 In his Oration for Murena (c. 9-13) Cicero turns into ridicule the forms and mysteries of the civilians, which are represented with more candour by Aulus Gellius (Noct. Attic. xx. 10), Gravina (Opp. p. 265, 266, 267), and Heineccius (Antiquitat. 1. iv. tit. vi.).a Gibbon had conceived opinions too decided against the forms of procedure in use among the Romans. Yet it is on these solemn forms that the certainty of laws has been founded among all nations. Those of the Romans were very intimately allied with the ancient religion, and must of necessity have disappeared as Rome attained a higher degree of civilisation. Have not modern nations, even the most VOL. V. civilised, overloaded their laws with a thousand forms, often absurd, almost always trivial? How many examples are afforded by the English law? See on the nature of these forms the work of M. de Savigny on the Vocation of our Age for Legislation and Jurisprudence, Heidelberg, 1814, p. 9, 10.-W. This work of M. Savigny has been translated into English by Mr. Hayward.-M. T |