C.H.A. P. This well-digested code was ratified by the em

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J.C. peror and the senate; the long divorce of law and

Constitutions of the emperors.

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by by the will of the sovereign; and few institutions, *:::A.P. either human or divine, were permitted to stand Con their former basis. The origin of Imperial legislation was concealed by the darkness of ages and the terrors of armed despotism; and a double fićtion 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 Caesars, the people or the senate had sometimes granted a personal exemption from the obligation and penalty of particular statutes; and each indulgence was an aćt of jurisdićtion 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”,” was supposed to exalt the emperor above all human restraints, and to leave his conscience and reason, as the sacred measure of his condućt. 2. A fimilar dependance was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elečtive magis. trate. 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, orfbnal confiderations. Virtue, or even reason, will suggest to his impartial mind, that he is the guard

38 The constitutional style of Legibus Solutus is mifinterpreted by the art or ignorance of Dion Cassius (tom. i. l. liii. p. 713.). On this occasion his editor, Reimar, 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.

Vol. VIII. . C In Ore


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more probably of Tribonian himself”; and the

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Their le. gislative power.


40 See Gravina (Opp. p. 5 or—512.) and Beaufort (Republique Romaine, tom. i. p. 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 1zmo, 1731.

41 Institut. l. i. tit. ii. No 6. Pande&t. l i. tit. iv. leg. 1. Cod. Justinian. l. 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. l. i. tit. i., ii, iii.) and Gravina (p. 37–90.).

4. Theophilus, in Karaphras. Graec. Institut. p. 33, 34. edit. Reitz. For his person, time, writings, see the Theophilus of J. H. Mylius, Excals. iii. p. 1034-1 of 3.


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ian 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 *; and the purest materials of the Code and Pande&ts are inscribed with the names of Caracalla and his ministers”. The tyrant of Rome was sometimes the benefactor of the provinces. A dagger terminated the crimes of Domitian; but the prudence of Nerva confirmed his ačts, which, in the joy of their deliverance, had been rescinded by an indignant senate”. 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 decifions on the same level with mature and deliberate ačts of legislation, was ineffectually condemned by the sense and example of Trajan. The rescripts of the

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

44 Of Antoninus Caracalla alone 2 co constitutions are extant in the Code, and with his father 160. These two princes are quoted fifty times in the Pande&ts and eight in the Institutes (Terasson, p. 265.).

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

Their rescripts.

46 It was a maxim of Constantine, contrajus rescripta non valeant

(Cod. Theodos. l. 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.

C 2 emperor,

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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 obe-
dience 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 constitu-
tions of the Pagan emperors from Hadrian to Con-
stantine. The third, which is still extant, was
digested in sixteenbooks by the order of the younger
Theddosius, 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”.
Among savage nations, the want of letters is
imperfectly fupplied by the use of visible signs,
which awaken attention, and perpetuate the
remembrance of any public or private transačtion.

Forms of the Roman we

47 A compound of vermillion and cinnabar, which marks the Imperial diplomas from Leo. (H.A.D. 470) to the fall of the Greek. empire (Bibliothèque Raisonnée de la Diplomatique, tom. i. p. 509 -514. Lafni, de Eruditione Apostolorum, tom. ii. p. 72c-726.).

48 Schulting, Jurisprudentia Ante-Justinianea, p. 681–718. Cujacius affigned to Gregory the reigns from Hadrian to Gallienus, and the continuation to his fellow-labourer Hermogenes. This general division may be just; but they often trespassed on each, other's ground. . . .

... • -. The

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