6.

of the Codes and Pandects113 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 authorised 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.114 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 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;115 and to prohibit the governor or his son from contracting marriage with a native or an inhabitant;116 or from purchasing slaves, lands, or houses within the extent of his jurisdiction.117 Notwithstanding these rigorous pre

113 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.

114 The presidents, or consulars, could impose only two ounces; e 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. 1. i. tit. liv. leg. 4, 6.

115 Ut nulli patriæ suæ administratio sine speciali principis permissu permittatur. Cod. Justinian. 1. i. tit. xli. This law was first enacted by the emperor Marcus, after the rebellion of Cassius (Dion, 1. lxxi. [c. 31, p. 1195]). The same regulation is observed in China, with equal strictness, and with equal effect.

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

117 In jure continetur, ne quis in administratione constitutus aliquid compararet.

cautions, 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 despatch 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 impotent laws and ineffectual menaces.118

fession of

All the civil magistrates were drawn from the profession of the law. The celebrated Institutes of Justinian are addressed The proto the youth of his dominions who had devoted themselves the law. 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. 119 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,120 on the coast of Phoenicia, which flourished above three centuries from the time of Alexander Severus, the author 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 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 officers of the governor, they except ouly clothes and provisions. The purchase within five years may be recovered; after which, on information, it devolves to the treasury.

118 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. l. i. tit. xlix. leg. 1.

Summa 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 procm. Institutionum.

120 The splendour of the school of Berytus, which preserved in the East 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. Rcm. Hist. p. 351–356.

ascended, by successive steps, to the illustrious dignities of the state. In the 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,122 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 gravity 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.1

123

121 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 Pretorian 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 repre sented 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 899, 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. Augustin. See Tillemont, Hist. des Emp. tom. v. p.

1110-1114.

122 Mamertinus in Panegyr. Vet. xi. [x.] 20. Asterius apud Photium, p. 1500. 123 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 Vit. Edesii, p. 72.

officers.

III. In the system of policy introduced by Augustus, the governors, those at least of the Imperial provinces, were invested with The military 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. 124 The influence of 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. 125 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.126 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 Africa.

124 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.

125 The Abbé Dubos, who has examined with accuracy (see Hist. de la Monarchie Françoise, tom. i. p. 41-100, 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. Zosimus, 1. ii. [c. 33] p. 110. Before the end of the reign of Constantius the magistri militum were already increased to four. See Valesius ad Ammian. l. xvi. c 7.