20

imperfectly restored by the labors of modern critics.22 But although these venerable monuments were considered as the rule of right and the fountain of justice, they were overwhelmed by the weight and variety of new laws, which, at the end of five centuries, became a grievance more intolerable than the vices of the city.24 Three thousand brass plates, the acts of the senate and people, were deposited in the Capitol: 25 and some of the acts, as the Julian law against extortion, surpassed the number of a hundred chapters.26 The Decemvirs had neglected to import the sanction of Zaleucus, which so long maintained the integrity of his republic. A Locrian, who proposed any new law, stood forth in the assembly of the people with a cord round his neck, and if the law was rejected, the innovator was instantly strangled.

The Decemvirs had been named, and their tables were approved, by an assembly of the centuries, in which riches preponderated against numbers. To the first class of Romans, the proprietors of one hundred thousand pounds of copper, ninety-eight votes were assigned, and only ninety

27

zz See Heineccius (Hist. J. R. No. 29--33). I have followed the restoration of the xii. tables by Gravina (Origines J. C. pp. 280-307) and Terrasson (Hist. de la Jurisprudence Romaine, pp. 91–205).*

23 Finis æqui juris (Tacit. Annal. iii. 27).† Fons omnis publici et privati juris (T. Liv. iii. 31).

De principiis juris, et quibus modis ad hanc multitudinem infinitam ac varietatem legum perventum sit altius disseram (Tacit. Annal. iii. 25) This deep dis quisition fills only two pages, but they are the pages of Tacitus. With equal sense, but with less energy, Livy (iii. 31) had complained, in hoc immenso aliarum super alia acervatarum legum cumulo, &c.

25 Suetonius in Vespasiano, c. 8.

26 Cicero ad Familiares, viii. 8.

2: Dionysius, with Arbuthnot, and most of the moderns (except Eisenschmidt de Ponderibus, &c., pp. 137-140), represent the 100,000 asses by 10,000 Attic drachmæ, or somewhat more than 300 pounds sterling. But their calculation can apply only to the later times, when the as was diminished to 1-24th of its ancient weight: nor can I believe that in the first ages, however destitute of the precious metals, a single ounce of silver could have been exchanged for seventy pounds of copper or brass. A more simple and rational method is to value the copper itself according to the present rate, and, after comparing the mint and the market price, the Roman and avoirdupois weigh, the primitive as or Roman pound of copper may be appreciated at one English shilling, and the 100,000 asses of the first class amountedto 5000 pounds sterling. It will appear from the same reckoning,that an ox was sold at Rome for five pounds, a sheep for ten shillings, and a quarter of wheat for one pound ten shillings (Festus, p. 330, edit. Dacier. Plin. Hist. Natur. xviii. 4) : nor do I see any reason to reject these cousequences, which moderate our ideas of the poverty of the first Romans.‡

The wish expressed by Warnkönig, that the text and the conjectural emendations on the fragments of the xii. tables, should be submitted to rigid criticism, has been fulfilled by Dirksen, Uebersicht der bisherigen Versuche zur Kritik und Herstellung des Textes der Zwölf-Tafel-Fragmente, Leipzig, 1824.-M.

+ From the context of the phrase in Tacitus, Nam secutæ leges etsi aliquando in maleficos ex delicto; sæpius tamen dissensione ordinum latæ sunt" it is clear that Gibbon has rendered this sentence incorrectly. Hugo, Hist. p. 62.-M. Compare Niebuhr, English translation, vol. i. p. 448, &c.-M.

five were left for the six inferior classes, distributed accord. ing to their substance by the artful policy of Servius. But the tribunes soon established a more specious and popular maxim, that every citizen has an equal right to enact the laws which he is bound to obey. Instead of the centuries, they convened the tribes; and the patricians, after an impotent struggle, submitted to the decrees of an assembly, in which their votes were confounded with those of the meanest plebeians. Yet as long as the tribes successively passed over narrow bridges,28 and gave their voices aloud, the conduct of each citizen was exposed to the eyes and ears of his friends and countrymen. The insolvent debtor consulted the wishes of his creditor; the client would have blushed to oppose the views of his patron; the general was followed by his veterans, and the aspect of a grave magistrate was a living lesson to the multitude. A new method of secret ballot abolished the influence of fear and shame, of honor and interest, and the abuse of freedom accelerated the progress of anarchy and despotism.20 The Romans had aspired to be equal; they were levelled by the equality of servitude; and the dictates of Augustus were patiently ratified by the formal consent of the tribes or centuries. Once, and once only, he experienced a sincere and strenuous opposition. His subjects had resigned all political liberty; they de fended the freedom of domestic life. A law which enforced the obligation, and strengthened the bonds of marriage, was clamorously rejected; Propertius, in the arms of Delia, applauded the victory of licentious love; and the project of reform was suspended till a new and more tractable generation had arisen in the world.30 Such an example was not necessary to instruct a prudent usurper of the mischief of popular assemblies; and their abolition, which Augustus had silently prepared, was accomplished without resistance, and almost without notice, on the accession of his successor. Sixth thousand plebeian legislators, whom numbers

28 Consult the common writers on the Roman Comitia, especially Sigonius and Beaufort Spanheim (de Præstantiâ et Usû Numismatum, tom. ii dissert x. pp. 192, 193) shows, on a curious medal, the Cista, Pontes, Septa. Diribitor, &c.

29 Cicero (de Legibus, iii. 16, 17, 18) debates this constitutional question, and assigns to his brother Quintus the most unpopular side.

30 Præ tumultu recusantium perferre non potuit (Sueton. in August. c. 34). See Propertius, 1 ii. eleg. 6 Heineccius, in a separate history, has exhausted the whole subject of the Julian and Papian-Poppaan laws (Opp. tom. vii. P. i. pp. 1-479).

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

This error of Gibbon has been long detected. did indeed elect the magistrates, who before that

The senate, under Tiberius, emperor were elected in the

made formidable, and poverty secure, were supplanted by six hundred senators, who held their honors, their fortunes, and their lives, by the clemency of the emperor. The loss of executive power was alleviated by the gift of legislative authority; and Ulpian might assert, after the practice 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 occasional EDICTS † of those magistrates who were invested with the honors of the state. This ancient prerogative of

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 (pp. 33-38, cdit. Reitz). who drops the im portant word honorarium.‡

comitia. But we find laws enacted by the people during his reign, and that o 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 senatûs-consulta relating to civil rights Lave 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 senatûs-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 intrench 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 emperor what the master of the horse was to the dictator under 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 moré appropriately placed, passed through the press.-M.

The author here follows the opinion of Heineccius, who, according to the idea of his master Thoma-ius, was unwilling to suppose that magistrates exercising a judicial could share in the legislative power. For this reason he repreFents the edicts of the prætors as absurd. (See his work, Historia Juris Romani, 69, 74.) But Heineccius had altogether a false notion of this important institu tion of the Romans, to which we owe in a great degree the perfection of their jurisprudence. Heineccius, therefore, in his own days had many opponents of his system, among others the celebrated Ritter, professor at Wittemberg, 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

the Roman 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 prov. inces, 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,

vindicate the edicts of the prætors in his Historia Jurisprud Rom. edit. 6, pp. 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 public opinion. It was not according to their caprice 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 honor among the Romans to publish an edict, well conceived 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 opinions might delay their cause till the following year.

The prætor was responsible for all the faults which he committed. The tri. bunes 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 minners of the people, and to the spirit of subsequent ages, the prætors, still maintaining respect for the laws, endeavored 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 Ronan legislature, and became the subject of the commentaries of the most celebrated lawyers. They must therefore be considered as the basis of all the Roman jurisprudence comprehended in the Diest 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. 1 p 296, &c., vol. ii. 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, Institu tiones Literariæ, tom. i pp. 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 multi. tude of authorities proves tha: 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 guaranty 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 Mittelalter-M

he announced by the voice of the crier, and afterwards in scribed 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 rigor of ancient statutes. A principle of discretion more congenial to mon archy was introduced into the republic; the art of respecting the name, and eluding the efficacy, of the laws, was im proved 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 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 rigor 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 perform ance, 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. It was reserved for the curiosity and learning of Adrian, to accomplish the design which had been conceived by the genius of Cæsar; and the prætorship of Salvius Julian, an eminent lawyer, was immortalized by the composition of the PERPETUAL EDICT. This well-digested code was ratified by the emperor and the senate; the long divorce of law and equity was at length reconciled; and,

84 Dion Cassius (tom. 1. 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 paners of Ludovicus Vives. Their authenticity is supported or allowed by Pighius (Annal. Rom. tom. ii. pp. 377, 378). Grævius (ad Sueton. p. 778), Dodweli (Prælection. Cambden, p. 665), and Hei. neccius: but a single word, Scutum Cimbricum, detects the forgery (Moyle's Works, vol. i. p. 303).