the Capitol; and some of the acts, as the Julian law against extortion, surpassed the number of a hundred chapters.t The decemvirs had neglected to import the sanction of Zaleucus which so long maintained the integrity of his republic. A Locrian, who proposed any new law, stood forth in the assembly of the people with a cord round his neck, and if the law was rejected, the innovator was instantly strangled.

The decemvirs had been named, and their tables were approved, by an assembly of the centuries, in which riches preponderated against numbers. To the first class of Romans, the proprietors of one hundred thousand pounds of copper, ninety-eight votes were assigned, and only ninety-five were left for the six inferior classes, disti 'buted according to their substance by the artful policy of Servius. But the tribunes soon established a more specious and popular maxim, that every citizen has an equal right to enact the laws which he is bound to obey. Instead of the centuries, they convened the tribes; and the patricians, aer an impotent struggle, submitted to the decrees of an assembly, in which their votes were confounded with those of the meanest plebeians. Yet as long as the tribes successively passed over narrow bridges,§ and gave their voices

* Suetonius in Vespasiano, c. 8.

+Cicero ad Familiares, 8, 8.

Dionysius, with Arbuthnot, and most of the moderns (except Eisenschmidt de Ponderibus, &c., p. 137-140), represent the one hundred thousand asses by ten thousand Attic drachmæ, or somewhat more than three hundred pounds sterling. But their calculation can apply only to the later times, when the as was diminished to one twenty-fourth of its ancient weight: nor can I believe that in the first ages, however destitute of the precious metals, a single ounce of silver could have been exchanged for seventy pounds of copper or brass. A more simple and rational method is, to value the copper itself according to the present rate, and, after comparing the mint and the market price, the Roman and avoirdupois weight, the primitive as or Roman pound of copper may be appreciated at one English shilling, and the one hundred thousand asses of the first class amounted to five thousand pounds sterling. It will appear from the same reckoning, that an ox was sold at Rome for 5l., a sheep for 10s., and a quarter of wheat for 17. 10s. (Festus, p. 330, edit. Dacier; Plin. Hist. Natur. 18, 4); nor do I see any reason to reject these consequences, which moderate our ideas of the poverty of the first Romans.

§ Consult the common writers on the Roman Comitia, especially Sigonius and Beaufort. Spanheim (de Fræstantia et Usu Numisatum, tom. ii. dissert. 10, p. 192, 193) shews, on a curious medal,

alour, the conduct of each citizen was exposed to the eyes and 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.* 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 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, 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.† 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 acces

the Cista, Pontes, Septa, Diribitor, &c. [The Septa were divisions or enclosures in the forum, one for each tribe to assemble in, also called ovilia, or sheep folds (Lucan. Phars. 2. 197). At first they were separated merely by ropes, then by wooden partitions, and at last by walls of marble. From each septum, after secret voting had been introduced, an elevated, narrow plank, termed the pons, or bridge, conducted to the cista, the urn or balloting-box. At the entrance of this passage stood the diribitor, or scrutineer, who summoned each individual in his turn, and gave him his tabellæ, or voting-tickets, one of which was to be deposited, as the expression of his will, in the cista. The pontes would have been useless, and can scarcely have existed, when votes were given vivâ voce.-ED.]

* Cicero (de Legibus, 3. 16—18) debates this constitutional question, and assigns to his brother Quintus the most unpopular side. [The ballot did not nurture in Rome a virtuous constituency, nor save the people from the phrenzy of contending factions, the horrors of civil wars, and eventual submission to despotic rule.-ED.]

+ Præ tumultu recusantium perferre non potuit (Sueton. in August. c. 34). See Propertius, 1. 2, eleg. 6. Heineccius, in a separate history, has exhausted the whole subject of the Julian and Papian-Poppæar

sion of his successor.* 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 Ulpian 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; and in questions of private jurisprudence, the integrity of their judgment was seldom perverted by fear or interest.†

*Tacit. Annal. 1. 15.

aws (Op. tom. vii, P. 1, p. 1—479). Lipsius, Excursus E. in Tacitum. [Some laws were passed by the people in the time of Tiberius. The Comitia, which he transferred to the Senate, were the annual meetings for the appointment of public officers.-HUGO.] [Gibbon is wrong here. During the reigns both of Tiberius and Claudius, there were laws enacted by the people. The Lex Julia Norbana, the Villeia, and the Claudia de tutela feminarum, are proofs of this. The Comitia were gradually laid aside with the other forms of the republic.-WARNKÖNIG.] [Gibbon's conciseness is here verbally inaccurate, though substantially correct. At the utmost he only ante-dates, by a few years, a consummation already in progress. The same had been previously said, almost in the same words (ch. 3), and is not contradicted as an error by Prof. Wenck. In his note he merely observes, that the forms of the Comitia were afterwards continued, but ascribes to them no power. They assembled, for some purposes, as late as the time of M. Antoninus; Aulus Gellius (5. 19) describes the arrogatio, or adoption of an heir, as an act then performed at such public meetings of the people; " per populi rogationem fit." This is confirmed by two passages in Niebuhr's Lectures (3, p. 118, 119, and 169). In the last he says: "Soon after Tiberius commenced his reign, a great change took place. Popular elections were abolished, and the right transferred to the senate. Yet was this change so merely a form and a farce, that Tacitus bestows on it scarcely a word."-ED.]

Non ambigitur senatum jus facere posse, is the decision of Ulpian (1. 16, ad Edict. in Pandect. lib. 1, tit. 3, leg. 9). Pomponius taxes the comitia of the people as a turba hominum (Pandect. 1. 1, tit. 2, leg. 9). [The Senate, during the Republic, passed laws, as well as the people in their Comitia. See Bach, Hist. Jurisp. Rom. 1. 2, c. 2, Sec. 2.—HUGO.] [It seems to be here maintained by Gibbon, that the Senate never took any part in legislation before the time of the emperors. Senatus-consulta, with regard to civil rights, during the

The silence or ambiguity of the laws was supplied by the occasional EDICTS of those magistrates who were invested with the honours of the state. This ancient prerogative of

Republic, are still extant. They were more frequent in the imperial ages, because the Senators were then gratified by the right of discussing such matters as did not interfere with the emperor's executive authority.-WARNKÖNIG.] [The legislative power of the Senate, during the Republic, is described by Niebuhr (Lectures 1. 271) as a veto, which, however, they were generally afraid of exercising. "When a resolution had been passed by the Tribes it might be rejected by the Patricians, as in Great Britain the Upper House, or the King, may refuse assent to a Bill adopted by the Commons. Yet, when the people are earnestly and decidedly bent on carrying a measure, it is dangerous, if not impossible to resist them. The Senators always endeavoured to avoid such an extremity by contriving to defeat, in its first stage, a motion which they disapproved."-ED.]

This

*The jus honorarium of the prætors and other magistrates is strictly defined in the Latin text of the Institutes (1. 1, tit. 2, No. 7), and more loosely explained in the Greek paraphrase of Theophilus (p. 33-38, edit. Reitz), who drops the important word honorarium. [The author was here guided by Heineccius, who subscribed to the doctrine of his master, Thomasius, that magistrates, invested with judicial functions, ought not to have any legislative power. made him condemn the Prætorian edicts (see his Hist. Juris. Rom., p. 69). But Heineccius took an altogether incorrect view of this important institution among the Romans, to which the excellence of their jurisprudence is greatly to be ascribed. His opinions have, therefore, been controverted by Professor Ritter of Wittenberg, by the learned Bach, and by M. Hugo. They have shown, that legislative enactments were thus harmonized with the spirit of the age. The true voice of public opinion was heard in that of the Prætor. He summoned to his aid all the most eminent legal practitioners of Rome when he prepared his annual law. This was not a power usurped by him; when he entered on his office he was required to make a proclamation of the principles by which his decisions would be guided, so as to prevent any suspicion of partiality. If he issued a partial edict he was liable to be accused by the tribunes. So generally respected were these edicts, that they were seldom set aside by any enactment of the people. Whenever a public statute was found inefficient, not adapted to the popular habits, or not consonant to the spirit of a more advanced age, the Prætor, while adhering to the letter of the law, endeavoured to meet the exigency of the case by some fiction suited to the purpose. These edicts embrace the whole system of Roman legislation; from their very nature they had no uniformity; and hence to comment on them became the occupation of the most distinguished lawyers. This comprehensive collection is therefore the groundwork of the Digest of Justinian. This is the view which M. Schrader has taken of this important legislatorial proceeding, and he recommends it for our imitation, so far as it may be

the Roman Kings was transferred, in their respective offices, to the consuls and dictators, the censors and prætors; and a similar right was assumed by the tribunes of the people, the ediles, and the proconsuls. 45 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 .n 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. 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 found consistent with our customs, and in accordance with our political institutions, to the end that premature decrees may not become permanent evils. The Institutiones Literaria of Haubold point out the works which afford the best information relative to the framing and form of these edicts.-WARNKÖNIG.] [The opinions of our judges and decrees of our Chancery courts seem to partake of the nature of the Prætorian Edicts. The union of judicial and legislative power in the same hands, which is exhibited by them, and which some consider to be dangerous, prevails also throughout the whole frame of our consti tutional polity.-ED.]