resentment. But the errors or vices of each prætor 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 prætor of the year to adhere to the letter and spirit of his first proclama tion. 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 prætorship of Salvius Julian, an eminent lawyer, was immortalized by the composition of the PERPETUAL EDICT. This 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.†

* Dion Cassius (tom. i, 1. 36, p. 100) 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. Camden. p. 665), and Heineccius; but a single word, Scutum Cimbricum, detects the forgery. (Moyle's Works, vol. i, p. 303.) 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. [This restoration is an unfinished work of Heineccius, which was found among his papers, and published after his death. Gibbon thought too highly of it, as well as of the perpetual edict. Cæsar's design went much farther.-HUGO.] [Here, again, misled by Heineccius, Gibbon, with the greater part of the literary world, misconceived the meaning of what is called the perpetual edict of Hadrian. The Cornelian law made all the edicts so far perpetual, that they could not be changed, during their tenure of office, by the prætors who issued them. These were collected, under the authority of Hadrian, by the civilian Julianus, or with his assistance, as had been done before by Ofilius. But there is no satisfactory proof to authorize the common belief, that Hadrian declared them to be perpetually unalterable. Neither the Institutes of Gaias, nor any works on law, advert to such a change, which they could not have failed to notice, if it had taken place. In their subsequent commentaries, lawyers appear always to have followed the text of their predecessors. The labours of so many eminent men had perfected the edict to such a degree, that farther improvement would have been difficult. Consult the learned Dissertation of M. Biener, De Salvii Juliani meritis, iu VOL. V.

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* 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."+ During four centuries, from Hadrian to Justinian, the public and private 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

[Niebuhr

Edict. Præt. æstimandis, 4to, Lipsiæ, 1809.-WARNKÖNIG.] has taken a different view of these questions. (See Lectures, iii, 78 and 231.) He says, Among the remarkable features of Hadrian's reign, is the new foundation laid for the system of Roman jurisprudence, in its later form. This was effected by the edictum perpetuum, and the development of the law by imperial edicts; it marks a new epoch in Roman legislation." Surely, however, the word "perpetuum" does not imply "perpetually unalterable," as construed by M. Warnkönig. It merely denoted constant or permanent, in opposition to that want of uniformity which, as admitted by him, had given occasion to the comments and disputations of so many law-sects.--ED.]

His laws are the first in the Code. See Dodwell (Prælect. Camden. p. 319-340), who wanders from the subject in confused reading and feeble paradox. [Following the same guide, Gibbon and others have, in this instance, been once more led astray. Their error consists in mistaking the unimportant edict of Hadrian, inserted in Justinian's Code (1. vi. tit. 23, c. 11) for the first "constitutio principis," regardless of the Pandects, where are found so many constitutions of the emperors, beginning with Julius Cæsar. M. Hugo has remarked (Hist. Juris. Rom. tom. ii, p. 24-27), that the Acta of Sylla, approved by the senate, were equivalent with the constitutions of those who after him usurped absolute sovereignty.-WARNKÖNIG.] ["Sylla was the first who placed administrative and criminal legislation on even a tolerable footing." (Niebuhr, Lectures, ii, 388.) These were the Acta above referred to.-ED.]

Totam illam veterem et squallentem sylvam legum novis principalium rescriptorum et edictorum securibus truncatis et cæditis. (Apologet. c. 4, p. 50, edit. Havercamp.) He proceeds to praise the recent turmness of Severus, who repealed the useless or pernicious laws,

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 a 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 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 extent of their own power and sovereignty."§ The will

* The con

without any regard to their age or authority. stitutional 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. [A century earlier Domitian had been styled "Dominus et Deus noster," both by Martial and in public documents. Sueton. Domit. c. 13.-HUGO.] [But the offensive title of rex never was used. Horace, at a still earlier period, had placed Augustus first among the princes of the earth (Carm, 4, 14), and told him that the Roman people were his, "Tuus hic populus." Epist. 2, 1, 18.-ED.]

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 Frederic Gronovius and Noodt, both translated with valuable notes, by Barbeyrac, 2 vols. in 12mo, 1731.

§ Institut. 1. i, tit. 2, No. 6; Pandect. 1. i, tit. 4, leg. 1; Cod. Justinian. 1. i, tit. 17, leg. 1, No. 7. In his antiquities and elements, Heineccius has amply treated de constitutionibus principum, which

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 displeasure, 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 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. are illustrated by Godefroy (Comment. ad Cod. Theodos. 1. i, tit. 1-3) and Gravina (p. 87-90). * Theophilus, in Paraphras. Græc. Institut. p. 33, 34, edit. Reitz. (2 vols. 4to, Hag. Com. 1751.) For his person, time, writings, see the "Theophilus" of J. H. Mylius, Excurs. 3, p. 1034-1073. [Among the idle controversies that busied scholars, in the early part of the last century, there was one respecting the time in which Theophilus lived. It called forth the learned and convincing "Theophilus" of J. H. Mylius. This work settled the dispute, and gained for its author a great reputation. The high notions of imperial prerogative entertained by Theophilus, were acceptable to Justinian, who appointed him "Comes Consistorii," or president of the council, and ranked him "e viris intimæ admissionis," or among his most private advisers. It is said, that the monarch urged him to write the Paraphrasis Institutionum, which left not a word in the original doubtful, and is considered to be of such authority as to be indispensable to students of the Roman law.. - ED.]

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. 8, p. 324, 325.) Yet he occurs only twice in the Pandects. Of Antoninus Caracalla alone

two hundred constitutions are extant in the Code, and with his father one hundred and sixty. These two princes are quoted fifty times in the Pandects, and eight in the Institutes. (Terasson, p. 265.)

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 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 purple 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 Chrisfan 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 jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted * Plin. Secund. Epistol. 10, 66. Sueton. in Domitian. c. 23. It was a maxim of Constantine, contra jus rescripta non valeant, (Cod. Theodos. 1. i, tit. 2, 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. A compound of vermilion and cinnabar, which marks the imperial diplomas from Leo. I, (A.D. 470) to the fall of the Greek empire. (Bibliothèque Raisonnée de la Diplomatique, tom. i, p. 509-514. Lami, de Eruditione Apostolorum, tom. ii, p. 720-726.) § Schulting, Jurisprudentia AnteJustinianea, 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