by the will of the sovereign; and few institutions, CHAP. either human or divine, were permitted to stand on XLIV. their former basis. The origin of Imperial legis lation 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 *" 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 dependance 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 †, and an irrevocable gift of the { people, were created by the fancy of Ulpian, or

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* The constitutional style of Legibus Solutus is misinterpreted by the art or ignorance of Dion Cassius (tom. i. 1. liii, p. 713.). On this occasion his editor, Reimar, joins the universal censure which freedom and criticism have pronounced against that slavish historian.

+ 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.

CHAP. more probably of Tribonian himself*; and the XLIV. the origin of Imperial power, though false in fact, and slavish in its consequence, was supported on a principle of freedom and justice.

Their le gislative power.

66

66

The pleasure

of the emperor has the vigour and effect of law, "since the Roman people by the royal law, have "transferred to their prince the full extent of their " own power and sovereignty t." The will of a single man, of a child perhaps, was 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 dis"pleasure, are already numbered with the dead ‡." 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.

66

* See Gravina (Opp. p. 501-512.) 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 12mo, 1731.

+ Institut. 1. i. tit. ii. No. 6. Pandect. 1. i. tit. iv. leg. 1. Cod. Justinian. 1. 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, ii, iii.) and Gravina (p.87-90.).

‡ 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.

derations. Virtue, or even reason, will suggest CHA P. to his impartial mind, that he is the guardian XLIV. 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 Pandects are inscribed with the names of Caracalla and his ministers t. 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 ‡. Yet in the rescripts §, replies to the consultations Their re. of the magistrates, the wisest of princes might be scripts, 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,

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* There is more envy than reason in the complaint of Macrinus (Jul. Capitolin. c. 13.): Nefas esse 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.

+ 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 Instisutes (Terasson, p. 265.).

† Plin. Secund. Epistol. x. 66. Sueton. in Domitian. c. 23. § 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.

}

:

CHAP. emperor. his grants and decrees, his edicts and XLIV. pragmatic sanctions, were subscribed in purple

Forms of the Roman

law

ink *, 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 obedience 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 constitutions of the Pagan emperors from Hadrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius, 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 supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction.

The

* A compound of vermillion and cinnabar, which marks the Imperial diplomas from Leo I. (A. D. 470) to the fall of the Greek empire (Bibliothéque Raisonée de la Diplomatique, tom. i. p. 509-514. Lami, de Eruditione Apostolorum, tom. ii. p. 720-726.).

+ Schulting, Jurisprudentia Ante-Justiniania, p. 681-718. Cujacius assigned 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.

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The jurisprudence of the first Romans exhibited CHAP. the scenes of a pantomime; the words were adapt-XLIV. ed to the gestures, and the slightest error or neglect in the forms of proceeding, was sufficient to annul the substance of the fairest claim. The communion of the marriage-life was denoted by the necessary elements of fire and water*: and the divorced wife resigned the bunch of keys, by the delivery of which, she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek: a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clenched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and scales were introduced into every payment, and the heir who accepted a testament, was sometimes obliged to snap his fingers, to cast away his garments, and to leap and dance with real or affected transport †. If a citi zen pursued any stolen goods into a neighbour's house, he concealed his nakedness with a linen towel, and hid his face with a mask or bason, lest he should encounter the eyes of a virgin or a ma

* Scævola, most probably Q. Cervidius Scævola the master of Papinian, considers this acceptance of fire and water as the essence of marriage Pandect. 1. xxiv. tit. i. leg. 66. See Heineccius, Hist. J. R. No. 317.).

+ Cicero (de Officiis, iii. 19.) may state an ideal case, but St. Ambrose de Officiis, iii. 2.) appeals to the practice of his own times, which he understood as a lawyer and a magistrate (Schulting ad Ulpian. Fragment. tit. xxii. No. 28. p. 643, 644.).

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