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possession of the goods of his late kinsman or be- CHAP. nefactor. 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. A 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 resentment. But the errors or vices of each pretor expired with his annual office; such maxims alone as had been approved by reason and practice were copied by succeeding judges; the rule of proceeding was defined by the solution of new cases; and the temptations of injustice were removed by the Cornelian law, which compelled the pretor of the year to adhere to the letter and spirit of his first proclamation.1 It was reserved for the curiosity and learning of Hadrian, to accomplish the design which had been conceived by the genius of Cæsar; and the pretorship of Salvius Julian, an eminent lawyer, was immortalized by the composition of the PERPETUAL EDICT. This The per

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CHAP. well-digested code was ratified by the emperor and the senate; 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 jurisprudence.m

Constitutions of the emperors.

From Augustus to Trajan, the modern 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 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 Tertulian, "the gloomy and intricate forest of " ancient laws was cleared away by the axe " of royal mandates and constitutions." During four centuries, from Hadrian to Justinian, the public and private jurisprudence was moulded

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 may safely acquiesce. In the Academy of Inscriptions, M. Bouchaud has given a series of me moirs to this interesting subject of law and literature.

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.

• Totam illam veterem et squallentem sylvam legum novis prin. cipalium rescriptorum et edictorum securibus ruscatis 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.

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by the will of the sovereign; and few institu- CHAP. tions, 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," 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, and an irrevocable gift of the people, were created by the fancy of Ulpian, or

The constitutional style of Legibus Solutus is misinterpreted 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 free. dom 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 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, "since the Roman people, by the royal law, " have transferred to their prince the full ex" tent of their own power and sovereignty."s 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 inter"est or passion," exclaims Theophilus in the court of Justinian, "can reach the calm and "sublime elevation of the monarch? he is al" ready 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. 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 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.* 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 con- Their sultations of the magistrates, the wisest of princes rescripts 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.