314

GOVERNORS OF THE PROVINCES.

CHAP. XVII.

office.111 The place of Augustal præfect of Egypt was no longer filled by a Roman knight; but the name was retained; and the extraordinary powers which the situation of the country and the temper of the inhabitants had once made indispensable were still continued to the governor. The eleven remaining dioceses-of Asiana, Pontica, and Thrace; of Macedonia, Dacia, and Pannonia, or Western Illyricum; of Italy and Africa; of Gaul, Spain, and Britain-were governed by twelve vicars or vice-præfects,112 whose name sufficiently explains the nature and dependence of their office. It may be added that the lieutenant-generals of the Roman armies, the military counts and dukes, who will be hereafter mentioned, were allowed the rank and title of Respectable.

The governors of the

provinces.

As the spirit of jealousy and ostentation prevailed in the councils of the emperors, they proceeded with anxious diligence to divide the substance and to multiply the titles of power. The vast countries which the Roman conquerors had united under the same simple form of administration were imperceptibly crumbled into minute fragments, till at length the whole empire was distributed into one hundred and sixteen provinces, each of which supported an expensive and splendid establishment. Of these, three were governed by proconsuls, thirty-seven by consulars, five by correctors, and seventy-one by presidents. The appellations of these magistrates were different; they ranked in successive order, the ensigns of their dignity 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

The proconsul of Africa had four hundred apparitors; and they all received large salaries, either from the treasury or the province. See Pancirol. p. 26, and Cod. Justinian. 1. xii. tit. lvi. lvii.

112 In Italy there was likewise the Vicar of Rome. It has been much disputed whether his jurisdiction measured one hundred miles from the city, or whether it stretched over the ten southern provinces of Italy."

It clearly appears from the Notitia that the ten southern provinces of Italy were under the "Vicarius Urbis Romæ,' while the northern provinces were under the "Vicarius Italiæt (see Table on p. 315). Thus the name of Italia, by a singular change, came to be specially applied (in official language at least) to these northern provinces, which in the time of the republic were excluded from Italia (being called Gallia Cisalpina); whereas the pro

vinces, to which the name of Italia was then confined, were now excluded from it. The practice was confirmed for a time by the circumstance that the northern part of Italy became the seat of the Lombard monarchy, which assumed the title of the Kingdom of Italy (Regnum Italia). See Böcking, ad Notit. Dignit. ii. 18; Gothofred, ad Cod. Theodos. xi. tit. 1, 1. 6; Niebuhr, Hist. of Rome, vol. i. p. 21; Smith, Dict. of Greek and Roman Geography, art. Italia.—S.

The following Table, taken from Marquardt (Becker's Handbuch der Römischen Alterthümer, vol. iii. part i. p. 240), shows the division of the Empire under the four Prætorian Præfects.

316

GOVERNORS OF THE PROVINCES.

CHAP. XVII.

of the Codes and Pandects 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. 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.

14 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. 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 only 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. 1. i. tit. xlix. leg. 1. 119 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 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. Rom. Hist. p. 351–356.

318

PROFESSION OF THE LAW.

CHAP. XVII. ascended, by successive steps, to the illustrious dignities of the state.1a1 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 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.'

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 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. 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. Ædesii, p. 72.