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CHAP. This well-digefted code was ratified by the em peror and the fenate; the long divorce of law and equity was at length reconciled; and, instead of the twelve tables, the perpetual edict was fixed as the invariable standard of civil jurifprudence 3..

Conftitu. tions of the emperors.

From Augustus to Trajan, the modeft Cæfars were content to promulgate their edicts in the various characters of a Roman magistrate: and, in the decrees of the fenate, the epiftles and orations of the prince were refpectfully inferted. Hadrian appears to have been the first who affumed, without disguise, the plenitude of legislative power. And this innovation, fo agreeable to his active mind, was countenanced by the patience of the times, and his long abfence from the feat of government. The fame policy was embraced by fucceeding monarchs, and, according to the harsh metaphor of Tertullian, "the gloomy and intri "cate foreft of antient laws was cleared away by "the axe of royal mandates and conftitutions.” During four centuries, from Hadrian to Juftinian, the public and private jurifprudence was moulded

35 The hiftory of edicts is compofed, and the text of the perpetual edict is restored, by the master hand of Heineccius (Opp. tom. vii. P. ii. p. 1-564.); in whose researches I might fafely acquiefce. In the Academy of Infcriptions, M. Bouchaud has given a series of memoirs to this interefting fübject of law and literature.

36 His laws are the firft in the Code. See Dodwell (Prælect. Cambden, p. 319-340.), who wanders from the fubject in confufed reading and feeble paradox.

37 Totam illam veterem et fquallentem fylvam legum novis principalium refcriptorum et edictorum fecuribus rufcatis et cæditis (Apologet. c. 4. p. 50. edit. Havercamp.). He proceeds to praise the recent firmnéfs of Severus, who repealed the useless or perni. ous laws without any regard to their age or authority.

by

1

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by the will of the fovereign; and few inftitutions, CHA P. either human or divine, were permitted to ftand on their former bafis. The origin of Imperial legislation was concealed by the darkness of ages and the terrors of armed defpotism; and a double fiction was propagated by the fervility, or perhaps the ignorance, of the civilians who bafked in the funfhine of the Roman and Byzantine courts. 1. To the prayer of the ancient Cæfars, the people or the senate had fometimes granted a perfonal 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 expreffion of "released from "the laws," was fuppofed to exalt the emperor above all human restraints, and to leave his conscience and reafon, as the facred measure of his conduct. 2. A fimilar dependance was implied in ' the decrees of the fenate, which, in every reign, defined the titles and powers of an elective magiftrate. 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

38 The conftitutional ftyle of Legibus Solutus is mifinterpreted by the art or ignorance of Dion Caffius (tom. i. l. liii. p. 713.). On this occafion his editor, Reimar, joins the universal cenfure which freedom and criticism have pronounced against that slavish historian.

39 The word (Lex Regia) was still more recent than the thing. The flaves of Commodus or Caracalla would have started at the name of royalty.

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more

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Their le gislative power.

40

CHAP. more probably of Tribonian himself 4° and the origin of Imperial power, though falfe in fact, and flavish in its confequence, was fupported on a principle of freedom and justice. "The pleasure "of the emperor has the vigour and effect of law, "fince the Roman people, by the royal law, have transferred to their prince the full extent of their own power and fovereignty "." The will of a fingle man, of a child perhaps, was allowed to prevail over the wifdom of ages and the inclinations of millions; and the degenerate Greeks were proud to declare, that in his hands alone the arbitrary exercise of legiflation could be fafely depofited. "What intereft or paffion," exclaims Theophilus in the court of Juftinian," can reach "the calm and fublime elevation of the monarch? "he is already master of the lives and fortunes of

42

his fubjects; and those who have incurred his "displeasure, are already numbered with the "dead"." Difdaining the language of flattery, the hiftorian may confefs, that in questions of private jurisprudence, the abfolute fovereign of a great empire can seldom be influenced by any per

40 See Gravina (Opp. p. 501-512.) and Beaufort (Republique Romaine, tom. i. p. 255-274.). He has made a proper use of two differtations by John Frederick Gronovius and Noodt, both translated, with valuable notes, by Barbeyrac, 2 vols. in 1zmo, 1731.

41 Inftitut. 1. i. tit. ii. N° 6. Pandect. 1 i. tit. iv. leg. 1. Cod. Juftinian. 1. i. tit. xvii. leg. 1. No;. In his Antiquities and Elements, Heineccius has amply treated de conftitutionibus principum, which are illuftrated by Godefroy (Comment. ad Cod. Theodof. I. i. tit. i, i, iii.) and Gravina (p. 87—90.).

42 Theophilus, in l'araphraf. Græc. Inftitut. p. 33, 34. edit. Reitz. For his perfon, time, writings, see the Theophilus of J. H. Mylius, Excuf. iii. p. 1034-1073.

fonal

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fonal confiderations. Virtue, or even reason, will CHAP. suggest to his impartial mind, that he is the guardian of peace and equity, and that the interest of fociety is infeparably connected with his own. Under the weakest and most vicious reign, the feat of justice was filled by the wisdom and integrity of Papinian and Ulpian 3; and the pureft material's of the Code and Pandects are infcribed with the names of Caracalla and his minifters 44. The tyrant of Rome was fometimes the benefactor of the provinces. A dagger terminated the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been refcinded by an indignant fenate "5. Yet in the refcripts 45, replies to the confultations Their reof the magistrates, the wifeft of princes might be deceived by a partial exposition of the cafe. And this abuse, which placed their hafty decifions on the fame level with mature and deliberate acts of legiflation, was ineffectually condemned by the fense and example of Trajan. The refcripts of the

45

43 There is more envy than reason in the complaint of Macrinus (Jul. Capitolin. c. 13.): Nefas effe leges videri Commodi et Caracallæ et hominum imperitorum voluntates. Commodus was made a Divus by Severus (Dodwell, Prælect. viii. p. 324, 325.). Yet he occurs only twice in the Pandects.

44 Of Antoninus Caracalla alone 2co conftitutions are extant in the Code, and with his father 160. Thefe two princes are quoted fifty times in the Pandects and eight in the Institutes (Teraffon, p. 265.).

45 Plin. Secund. Epiftol. x. 66. Sueton. in Domitian. c. 23.

46 It was a maxim of Conftantine, contra jus refcripta non valeant(Cod. Theodof. 1. i. tit. ii. leg. 1.). The emperors reluctantly allow fome scrutiny into the law and the fact, fome delay, petition, &c.; but these infufficient remedies are too much in the difcretion and at the peril of the judge.

fcripts.

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But as their

CHAP. emperor, his grants, and decrees, his edicts and pragmatie fanctions, were subscribed in purple ink ", and tranfmitted to the provinces as general or fpecial laws, which the magiftrates were bound to execute, and the people to obey. number continually multiplied, the rule of obedience became each day more doubtful and obfcure, till the will of the fovereign was fixed and afcertained in the Gregorian, the Hermogenian, and the Theodofian codes. The two first, of which fome fragments have escaped, were framed by two private lawyers, to preserve the constitutions of the Pagan emperors from Hadrian to Conftantine. The third, which is ftill extant, was digested in fixteen books by the order of the younger Theodofius, to confecrate the laws of the Chriftian princes from Constantine to his own reign. the three codes obtained an equal authority in the tribunals and any act which was not included in the facred depofit, might be difregarded by the judge as fpurious or obsolete **.

Forms of

the Roman

But

Among favage nations, the want of letters is law. imperfectly fupplied by the use of vifible figns, which awaken attention, and perpetuate the remembrance of any public or private transaction.

47 A compound of vermillion and cinnabar, which marks the Imperial diplomas from Leo. (I. A. D. 470) to the fall of the Greek empire (Bibliothèque Raifonnée de la Diplomatique, tom. i. p. 509

514. Lathi, de Eruditione Apoftolorum, tom. ii. p. 720-726.). 4 Schulting, Jurifprudentia Ante-Juftinianea, p. 681-718. Cujacius affigned to Gregory the reigns from Hadrian to Gallienus, and the continuation to his fellow-labourer Hermogenes. This general divifion may be juft; but they often trefpalled on each other's ground.

The