Instead of the Twelve Tables, the Perpetual Edict was fixed as the invariable standard of civil jurisprudence.35 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 in serted. Adrian 3 appears to have been the first who as 5 The history of edicts is composed, and the text of the perpetual edict is restored, by the inaster-hand of Heineccius (Opp. tom, vii. P. ii. pp. 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.t His laws are the first in the code. See Dodwell (Prælect. Cambden, pp. 319-310), who wanders from the subject in confused reading and feeble paradox.§ * This restoration was only the commencement of a work found among the rapers 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 suficient 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, expresses himself in the same manner, without mentioning any change made by Hadrian, Nevertheless, if it had taken place, he must have noticed it, as he does 1. i. 8, the responsa prudentum, 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, 1. c.). The later lawyers appear to follow, in their commentaries, the same text as their predecessors It is natural to suppose, that, after the labors 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 concerning 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 legislation? Compare the learned Dissertation of M. Biener, De Salvii Juliani meritis in Edictum Prætorium recte æstimandis. Lipsæ, 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 generality 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.). VOL. III.-42 sumed, 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 constitutions." 37 During four centuries, from Adrian 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, and an irrevocable gift of the people, were created by the fancy of Ulpian, or more 87 Totam illam veterem et squalentem 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. 33 The constitutional style of Legibus Solutus is misinterpreted by the art or ignorance of Dion Cassius (tom. i. l. liii. p. 713). On this occasion his editor, Reimer, 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.* 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. pp. 24, 27.-W. *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. 41 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 vigor 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." 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." 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 ter 40 See Gravina (Opp. pp. 501-512) and Beaufort (République Romaine, tom. i. pp. 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. 41 Institut. 1. i. tit. ii. No. 6. Pandect. 1. ì. 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 (pp. 87-90).* 42 Theophilus, in Paraphras. Græc. Institut, pp. 33, 34, edit. Reitz. For his person, time, writings, see the Theophilus of J. H. Mylius, Excurs. iii. pp. 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. pp. 324, 325). Yet he occurs oniv 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 (Terasson, p. 265). * Gaius (see note ‡, p. 659) 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 imperator decreto vel edicto, vel epistola consti tuit, nec unquam dubitatum, quin id legis vicem obtineat, cum ipse imperator per legem imperium accipiat. Gaius, 6 Instit. i. 2.-M. 46 minated 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.45 Yet in the rescripts, replies to the consultations of the magistrates, 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 Adrian 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 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. 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 1. (A. D. 470) to the fall of the Greek empire (Bibliothèque Raisonnée de la Diplomatique, tom. i. pp. 504-515. Lami, de Eruditione Apostolorum, tom. ii. pp. 720-726). 48 Schulting, Jurisprudentia Ante-Justinianea, pp. 681-718. Cujacius assigned to Gregory the reigns from Hadrian to Gallienus, and the continuation to his fellow-laborer Hermogenes. This general division may be just, but they often trespassed on each other's ground. * 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 III., 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 II. 4. The particular Novellæ, as additions and supplements to this Code. Sa vigny, vol. i. p. 10.-M. 49 Amo ig savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scones 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 marriage-life was denoted by the necessary elements of fire and water; and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the govern ment 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 clinched 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 neighbor'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 49 Scævola, ms, probably Q. Cervidius Scævola, the master of Papinian considers this accepe of fire and water as the essence of marriage (Pandect. 1. xxiv. tit. 1, leg. o. Cec Heincccius, Hist. J. R. No. 317). 50 Cicero (de Officiis, iii. 19) may state an ideal case, but St. Ambrose (de Offiriis, ini. 2) appeals to the practice of his own times, which be understood as a lawyer and a magistrate (Schulting ad Ulpian. Fragment. tit. xxii. No. 28, pp. 643, 644*). 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.† In this passage the author has endeavored to collect all the examples of Judicial formularies which he could find. That which he adduces as the form of cretio hæreditatis is absolutely false. It is sufficient to giance 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 Hæreditatis, Inst. 1. ii. p. 166.-W. Nothing more is known of this ceremony; nevertheless we find that already in his own days Gaius turned it into ridicule. He says (lib. i et p. 192, § 293), 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 inteum? quæsitum est. Sed verius est consuti genus esse, quo necessariæ partes tegerentur. Quare ex 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 |