XLIV. of his republic. A Locrian who propofed any new CHAP. law, stood forth in the affembly of the people with a cord round his neck, and if the law was rejected, the innovator was inftantly ftrangled. The Decemvirs had been named, and their tables were approved by an affembly of the centuries, in which riches preponderated against numbers. To the first class of Romans, the proprietors of one hundred thoufand pounds of copper 27, ninety-eight votes were affigned, and only ninety-five were left for the fix inferior claffes, diftributed according to their fubftance by the artful policy of Servius. But the tribunes foon established a more fpecious and popular maxim, that every citizen has an equal right to enact the laws which he is bound to obey. Inftead of the centuries, they convened the tribes; and the patricians, after an impotent struggle, fubmitted to the decrees of an af 27 Dionyfius. with Arbuthnot, and most of the moderns (except Eifenfchmidt de Ponderibus, &c. p. 137-140.), reprefent the 100,000 affes by 10,000 Attic drachma, orfomewhat more than 300 pounds fterling. But their calculation can apply only to the later times, when the as was diminished toth of its ancient weight: nor can I believe that in the first ages, however destitute of the precious metals, a single ounce of filver could have been exchanged for seventy pounds of copper or brafs. A more fimple 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 averdupois weight, the primitive as or Roman pound of copper may be appreciated at one English fhilling, and the100,000 affes of the first class amounted to 5000 pounds sterling. It will appear from the fame reckoning that an ox was fold at Rome for five pounds, a fheep forten shillings, and a quarter of wheat for one pound ten fhillings (Feftus, p. 330. edit. Dacier. Plin. Hift. Natur. xviii. 4.): nor do I fee any reason to reject these confequences, which moderate our ideas of the poverty of the firft Romans. fembly, Laws of the people. XLIV. CHAP. fembly, in which their votes were confounded with thofe of the meaneft plebeians. Yet as long as the tribes fucceffively paffed over narrow bridges 28, and gave their voices aloud, the conduct of each citizen was expofed to the eyes and ears of his friends and countrymen. The infolvent debtor confulted the wifhes of his creditor; the client would have blufhed to oppofe the views of his patron the general was followed by his veterans, and the afpect of a grave magiftrate was a living leffon to the multitude. A new method of fecret ballot abolished the influence of fear and fhame, of honour and interest, and the abuse of freedom accelerated the progrefs of anarchy and defpotifm". The Romans had afpired to be equal; they were levelled by the equality of fervitude; and the dictates of Auguftus were patiently ratified by the formal confent of the tribes or centuries. Once, and once only, he experienced a fincere and ftrenuous oppofition. His fubjects had refigned all political liberty; they defended the freedom of domeftic 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 fufpended till a new and 28 Confult the common writers on the Roman Comitia, efpecially Sigonius and Beaufort. Spanheim (de Præftantiâ et Ufû Numifmatum, tom. ii. differt, x. p. 192, 193.) fhews, on a curious medal, the Cifta, Pontes, Septa, Diribitor, &c. 19 Cicero (de Legibus, iii. 16, 17, 18.) debates this constitutional queftion, and affigns to his brother Quintus the most unpopular fide, more XLIV. more tractable generation had arifen in the world". CHAP. Such an example was not neceffary to inftruct a prudent ufurper of the mifchief of popular affemblies; and their abolition, which Auguftus had filently prepared, was accomplished without refiftance, and almoft without notice, on the acceffion of his fucceffor "". Sixty thousand plebeian legiflators, whom numbers made formidable, and poverty fecure, were fupplanted by fix hundred fenators, who held their honours, their fortunes, and their lives, by the clemency of the emperor. The lofs Decrees of of executive power was alleviated by the gift of the fenate. legislative authority; and Ulpian might affert, after the practice of two hundred years, that the decrees of the fenate obtained the force and vali dity of laws. In the times of freedom, the refolves of the people had often been dictated by the paffion or error of the moment: the Cornelian, Pompeian, and Julian laws, were adapted by a fingle hand to the prevailing diforders: but the fenate, under the reign of the Cæfars, was compofed of magiftrates and lawyers, and in questions of private jurifprudence, the integrity of their judg ment was feldom perverted by fear or intereft The filence or ambiguity of the laws was fupplied by the occafional EDICTS of those magiftrates 3o Præ tumultu recufantium preferre non potuit (Sueton. in Auguft. c. 34.). See Propertius, 1. ii. eleg. 6. Heineccius, in a feparate hiftory, has exhaufted the whole fubject of the Julian and Papian-Poppaan laws (Opp. tom. vii. P. i. p. 1-479.). 31 Tacit. Annal. i. 15. Lipfius, Excurfus E. in Tacitum. 32 Non ambigitur fenatum jus facere poffe, is the decision of Ulpian (1. xvi. ad Edi&t. 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.). who Edicts of tors. the pre CHAP. who were invefted with the honours of the ftate 33. XLIV. This antient prerogative of the Roman kings, was transferred, in their respective offices, to the confuls and dictators, the cenfors and prætors; and afimilar right was affumed by the tribunes of the people, the ediles, and the proconfuls. At Rome, and in the provinces, the duties of the subject, and the intentions of the governor, were proclaimed; and the civil jurifprudence was reformed by the annual edicts of the fupreme judge, the prætor of the city. As foon as he afcended his tribunal, he announced by the voice of the cryer, and afterwards infcribed on a white wall, the rules which he proposed to follow in the decifion of doubtful cafes, and the relief which his equity would afford from the precife rigour of antient ftatutes. A principle of discretion more congenial to monarchy was introduced into the republic: the art of refpecting the name, and eluding the efficacy, of the laws, was improved by fucceffive prætors; fubtleties and fictions were invented to defeat the plainest meaning of the Decemvirs, and where the end was falutary, the means were frequently abfurd. The fecret or probable wifh of the dead was fuffered to prevail over the order of fucceffion and the forms of teftaments; and the claimant, who was excluded from the character of heir, accepted with equal pleasure from an indulgent prætor the poffeffion of 33 The jus honorarium of the prætors and other magiftrates, is strictly defined in the Latin text of the Inftitutes (1. i. tit. ii. No 7.)%~ and more loosely explained in the Greek paraphrase of Theophilus (p.33-38. edit. Reitz), who drops the important word honorarium. XLIV. the goods of his late kinfman or benefactor. In CHAP. the redress of private wrongs, compenfations and fines were substituted to the obsolete rigour of the twelve tables; time and space were annihilated by fanciful fuppofitions; and the plea of youth, or fraud, or violence, annulled the obligation, or excufed the performance, of an inconvenient contract. A jurifdiction thus vague and arbitrary was exposed to the most dangerous abufe: the fubstance, as well as the form of justice, were often sacrificed to the prejudices of virtue, the bias of laudable affection, and the groffer feductions of intereft or resentment. But the errors or vices of each prætor expired with his annual office; fuch maxims alone as had been approved by reason and practice were copied by fucceeding judges; the rule of proceeding was defined by the folution 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 curiofity and learning of Hadrian, to accomplish the design which had been conceived by the genius of Cæfar; and the prætorship of Salvius Julian, an eminent lawyer, was immortalized by the compofition of the PERPETUAL EDICT. 34 Dion Caffius (tom. i. 1. xxxvi. p. 100.) fixes the perpetual edicts in the year of Rome 686. Their inftitution, however, is afcribed to the year 585 in the Acta Diurną, which have been published from the papers of Ludovicus Vives. Their authenticity is fupported or allowed by Pighius (Annal. Roman. tom. ii. p. 377, 378.), Grævius (ad Sueton. p. 778.), Dodwell (Prælection. Camb-, den, p. 665.), and Heineccius: but a single word, Scutum Gimbris cam, detects the forgery (Moyle's Works, vol. i. p. 303.). The per petual edict |