eyes and T aloud, the conduct of each citizen was exposed to the ears of his friends and countrymen. The insolvent debtor consulted the wishes of his creditor; the client would have blushed to oppose the views of his patron; the general was followed by his veterans; and the aspect of a grave magistrate was a living lesson to the multitude. A new method of secret ballot abolished the influence of fear and shame, of honour and interest, and the abuse of freedom accelerated the progress of anarchy and despotism.29 The Romans had aspired to be equal; they were levelled by the equality of servitude; and the dictates of Augustus were patiently ratified by the formal consent of the tribes or centuries. Once, and once only, he experienced a a sincere and strenuous opposition. His subjects had resigned all political liberty; they defended the freedom of domestic life. A law which enforced the obligation, and strengthened the bonds, of marriage was clamorously rejected; Propertius, [Leg Cynthia] in the arms of Delia, applauded the victory of licentious love; and the project of reform was suspended till a new and more tractable generation had arisen in the world.30 Such an example was not necessary to instruct a prudent usurper of the mischief of popular assemblies; and their abolition, which Augustus had silently prepared, was accomplished without resistance, and almost without notice, on the accession of his successor. 31 Sixty thousand plebeian legislators, whom numbers made formidable and poverty secure, were supplanted by six hundred senators, who held their honours, their fortunes, and their lives by the clemency of the emperor. The loss of executive power was alleviated by the gift of legislative authority; and Úlpian might assert, after the practice of two hundred years, that the decrees of the senate obtained the force and validity of laws. In the times of freedom, the resolves of the people had often been dictated by the passion or error of the moment; the Cornelian, Pompeian, and Julian laws were adapted by a single hand to the prevailing disorders; but the senate, under the reign of the Cæsars, was composed of magistrates and lawyers, Decrees of the senate 29 Cicero (de Legibus, iii. 16, 17, 18) debates this constitutional question, and assigns to his brother Quintus the most unpopular side. 30 Præ tumultu recusantium perferre non potuit (Sueton. in August. c. 34). See Propertius, 1. ii. eleg. 6. Heineccius in a separate history has exhausted the whole subject of the Julian and Papian-Poppaan laws (Opp. tom. vii. P. i. p.1479). 31 Tacit. Annal. i. 15. Lipsius, Excursus E. in Tacitum. and in questions of private jurisprudence the integrity of their judgment was seldom perverted by fear or interest.32 prætors The silence or ambiguity of the laws was supplied by the Edicts of the Occasional EDICTS of those magistrates who were invested with the honours of the state.33 This ancient prerogative of the Roman kings was transferred, in the respective offices, to the consuls and dictators, the censors and prætors; and a similar right was assumed by the tribunes of the people, the ædiles, and the proconsuls. At Rome and in the provinces, the duties of the subject and the intentions of the governor were proclaimed; and the civil jurisprudence was reformed by the annual edicts of the supreme judge, the prætor of the city. As soon as he ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the decision of doubtful cases, and the relief which his equity would afford from the precise rigour of ancient statutes. A principle of discretion more congenial to monarchy was introduced into the republic; the art of respecting the name, and eluding the efficacy, of the laws was improved by successive prætors; subtleties and fictions were invented to defeat the plainest meaning of the Decemvirs; and, where the end was salutary, the means were frequently absurd. The secret or probable wish of the dead was suffered to prevail over the order of succession and the forms of testaments; and the claimant, who was excluded from the character of heir, accepted with equal pleasure from an indulgent prætor the possession of the goods of his late kinsman or benefactor. In the redress of private wrongs, compensations and fines were substituted to the obsolete rigour of the Twelve Tables; time and space were annihilated by fanciful suppositions; and the plea of youth, or fraud, or violence, annulled the obligation, or excused the performance, of an inconvenient contract. jurisdiction thus vague and arbitrary was exposed to the most dangerous abuse: the substance, as well as the form of justice, were often sacrificed to the prejudices of virtue, the bias of laudable affection, and the grosser seductions of interest or A 32 Non ambigitur senatum jus facere posse, is the decision of Ulpian (1. xvi. ad Edict. 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). 33 The jus honorarium of the prætors and other magistrates is strictly defined in the Latin text of the Institutes (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. [The prætorian ius as a source of equity is treated in a very interesting manner by Sir Henry Maine, Ancient Law, c. 3.] 1 The Per petual Edict Constitutions of the em perors resentment. But the errors or vices of each prætor expired From Augustus to Trajan, the modest Cæsars were content to promulgate their edicts in the various characters of a Roman magistrate; and, in the decrees of the senate, the epistles and orations of the prince were respectfully inserted. Hadrian 36 appears to have been the first who assumed, without disguise, the plenitude of legislative power. And this innovation, so agreeable to his active mind, was countenanced by the patience of the times and his long absence from the seat of government. The same policy was embraced by succeeding monarchs, and, according to the harsh metaphor of Tertullian, "the gloomy and intricate forest of ancient laws was cleared away by the axe of royal mandates and constitutions".37 During four centuries, from Hadrian to Justinian, the public and private 34 Dion Cassius (tom. i. 1. xxxvi. p. 100 [c. 23]) fixes the perpetual edicts in the year of Rome 686. Their institution, however, is ascribed to the year 585 in the Acta Diurna, which have been published from the papers of Ludovicus Vives. Their authenticity is supported or allowed by Pighius (Annal. Roman. tom. ii. p. 377, 378). Grævius (ad Sueton. p. 778), Dodwell (Prælection. Cambden, p. 665), and Heineccius; but a single word, scutum Cimbricum, detects the forgery (Moyle's Works, vcl. i. p. 303). 35 The history of edicts is composed, 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 safely acquiesce. In the Academy of Inscriptions, M. Bouchaud has given a series of memoirs to this interesting subject of law and literature. 36 His laws are the first in the Code. See Dodwell (Prælect. Cambden, p. 319-340), who wanders from the subject in confused reading and feeble paradox. 37 Totam illam veterem et squalentem sylvam legum novis principalium rescriptorum et edictorum securibus truncatis et cæditis (Apologet. c. 4. p. 50, edit. Havercamp). He proceeds to praise the recent firmness of Severus, who repealed the useless or pernicious laws without any regard to their age or authority. 3 jurisprudence was moulded by the will of the sovereign; and few institutions, either human or divine, were permitted to stand on their former basis. The origin of Imperial legislation was concealed by the darkness of ages and the terrors of armed despotism; and a double fiction 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 Cæsars, the people or the senate had sometimes granted a personal 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 expression of " released from the laws," 38 was supposed to exalt the emperor above all human restraints, and to leave his conscience and reason as the sacred measure of his conduct. 2. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elective magistrate. But it was not before the ideas, and even the language, of the Romans had been corrupted, that a royal law,39 and an irrevocable gift of the people, were created by the fancy of Ulpian, or more probably of Tribonian himself; 40 and the origin of Imperial power, though false in fact and slavish in its consequence, was supported on a principle of freedom and justice. "The pleasure of the emperor has the vigour and effect of law, Their legissince the Roman people by the royal law have transferred to their prince the full extent of their own power and sovereignty." 41 The will of a single man, of a child perhaps, was 38 The constitutional style of Legibus solutus is misinterpreted by the art or ignorance of Dion Cassius (tom. i. 1. liii. p. 713 [c. 18]). 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. [It was the Lex de Imperio; see above, vol. i. p. 66.-Lex regia is an incorrect and late phrase. It ought to mean a law proposed by a rex, not pertaining to a rex; and the words rex, regius were never associated officially with the Emperor. The phrase occurs in the text of Ulpian, but is probably an interpolation-if not, as Mommsen suggests, a Syrian provincialism. See Mommsen, Staatsrecht, 2, 869.] 40 See Gravina (Opp. p. 501-512) and Beaufort (République 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 12m0, 1731. 41 Institut. 1. i. tit. ii. No. 6; Pandect. 1. i. tit. iv. leg. i.; Cod. Justinian, l. i. tit. xvii. leg. i. No. 7. In his antiquities and elements, Heineccius has amply treated de constitutionibus principum, which are illustrated by Godefroy (Comment. ad Cod. Theodos. 1. i. tit. i. îì. iii.) and Gravina (p. 87-90). lative power Their rescripts allowed to prevail over the wisdom of ages and the inclinations of millions; and the degenerate Greeks were proud to declare that in his hands alone the arbitrary exercise of legislation could be safely deposited. "What interest or passion," exclaims Theophilus in the court of Justinian, "can reach the calm and sublime elevation of the monarch? he is already master of the lives and fortunes of his subjects; and those who have incurred his displeasure are already numbered with the dead." 42 Disdaining the language of flattery, the historian may confess that, in questions of private jurisprudence, the absolute sovereign of a great empire can seldom be influenced by any personal considerations. Virtue, or even reason, will suggest to his impartial mind that he is the guardian 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; 43 and the purest materials of the Code and Pandects 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 acts, which, in the joy of their deliverance, had been rescinded by an indignant senate. 45 Yet in the rescripts,46 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 decisions on the same level with mature and deliberate acts of legislation, was ineffectually condemned by the sense and example of Trajan. The rescripts of the emperor, his grants and decrees, his edicts and pragmatic sanctions, were subscribed in 42 Theophilus, in Paraphras. Græc. Institut. p. 33, 34, edit. Reitz. For his person, time, writings, see the Theophilus of J. H. Mylius, Excurs. iii. p. 1034 1073. 43 There is more envy than reason in the complaint of Macrinus (Jul. Capitolin. c. 13): Nefas esse leges videri Commodi et Caracalla 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 200 constitutions are extant in the Code, and with his father 160. These two princes are quoted fifty times in the Pandects and eight in the Institutes (Terrasson, p. 265). 45 Plin. Secund. Epistol. x. 66. Sueton. in Domitian. c. 23. 46 It was a maxim of Constantine, contra jus rescripta non valeant (Cod. Theodos. 1. 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. S |