Chapter XLIV: Idea Of The Roman Jurisprudence.—Part II

Whatever might be the origin or the merit of the twelve tables,
20 they obtained among the Romans that blind and partial
reverence which the lawyers of every country delight to bestow on
their municipal institutions. The study is recommended by Cicero
21 as equally pleasant and instructive. “They amuse the mind by
the remembrance of old words and the portrait of ancient manners;
they inculcate the soundest principles of government and morals;
and I am not afraid to affirm, that the brief composition of the
Decemvirs surpasses in genuine value the libraries of Grecian
philosophy. How admirable,” says Tully, with honest or affected
prejudice, “is the wisdom of our ancestors! We alone are the
masters of civil prudence, and our superiority is the more
conspicuous, if we deign to cast our eyes on the rude and almost
ridiculous jurisprudence of Draco, of Solon, and of Lycurgus.”
The twelve tables were committed to the memory of the young and
the meditation of the old; they were transcribed and illustrated
with learned diligence; they had escaped the flames of the Gauls,
they subsisted in the age of Justinian, and their subsequent loss
has been imperfectly restored by the labors of modern critics. 22
But although these venerable monuments were considered as the
rule of right and the fountain of justice, 23 they were
overwhelmed by the weight and variety of new laws, which, at the
end of five centuries, became a grievance more intolerable than
the vices of the city. 24 Three thousand brass plates, the acts
of the senate of the people, were deposited in the Capitol: 25
and some of the acts, as the Julian law against extortion,
surpassed the number of a hundred chapters. 26 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.

20 (return) [ It is the praise of Diodorus, (tom. i. l. xii. p.
494,) which may be fairly translated by the eleganti atque
absoluta brevitate verborum of Aulus Gellius, (Noct. Attic. xxi.
1.)]

21 (return) [ Listen to Cicero (de Legibus, ii. 23) and his
representative Crassus, (de Oratore, i. 43, 44.)]

22 (return) [ See Heineccius, (Hist. J. R. No. 29—33.) I have
followed the restoration of the xii. tables by Gravina (Origines
J. C. p. 280—307) and Terrasson, (Hist. de la Jurisprudence
Romaine, p. 94—205.) Note: The wish expressed by Warnkonig, that
the text and the conjectural emendations on the fragments of the
xii. tables should be submitted to rigid criticism, has been
fulfilled by Dirksen, Uebersicht der bisherigen Versuche Leipzig
Kritik und Herstellung des Textes der Zwolf-Tafel-Fragmente,
Leipzug, 1824.—M.]

23 (return) [ Finis aequi juris, (Tacit. Annal. iii. 27.) Fons
omnis publici et privati juris, (T. Liv. iii. 34.) * Note: From
the context of the phrase in Tacitus, “Nam secutae leges etsi
alquando in maleficos ex delicto; saepius tamen dissensione
ordinum * * * latae sunt,” it is clear that Gibbon has rendered
this sentence incorrectly. Hugo, Hist. p. 62.—M.]

24 (return) [ De principiis juris, et quibus modis ad hanc
multitudinem infinitam ac varietatem legum perventum sit altius
disseram, (Tacit. Annal. iii. 25.) This deep disquisition fills
only two pages, but they are the pages of Tacitus. With equal
sense, but with less energy, Livy (iii. 34) had complained, in
hoc immenso aliarum super alias acervatarum legum cumulo, &c.]

25 (return) [ Suetonius in Vespasiano, c. 8.]

26 (return) [ Cicero ad Familiares, viii. 8.]

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, 27 ninety-eight votes were
assigned, and only ninety-five were left for the six inferior
classes, distributed 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, after 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 28 and gave their voices aloud, 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 honor 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 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. 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 honors,
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 Caesars, was composed of
magistrates and lawyers, and in questions of private
jurisprudence, the integrity of their judgment was seldom
perverted by fear or interest. 32

27 (return) [ Dionysius, with Arbuthnot, and most of the moderns,
(except Eisenschmidt de Ponderibus, &c., p. 137—140,) represent
the 100,000 asses by 10,000 Attic drachmae, or somewhat more than
300 pounds sterling. But their calculation can apply only to the
latter times, when the as was diminished to 1-24th 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 100,000 asses of the first class amounted to
5000 pounds sterling. It will appear from the same reckoning,
that an ox was sold at Rome for five pounds, a sheep for ten
shillings, and a quarter of wheat for one pound ten shillings,
(Festus, p. 330, edit. Dacier. Plin. Hist. Natur. xviii. 4:) nor
do I see any reason to reject these consequences, which moderate
our ideas of the poverty of the first Romans. * Note: Compare
Niebuhr, English translation, vol. i. p. 448, &c.—M.]

28 (return) [ Consult the common writers on the Roman Comitia,
especially Sigonius and Beaufort. Spanheim (de Praestantia et Usu
Numismatum, tom. ii. dissert. x. p. 192, 193) shows, on a curious
medal, the Cista, Pontes, Septa, Diribitor, &c.]

29 (return) [ Cicero (de Legibus, iii. 16, 17, 18) debates this
constitutional question, and assigns to his brother Quintus the
most unpopular side.]

30 (return) [ Prae tumultu recusantium perferre non potuit,
(Sueton. in August. c. 34.) See Propertius, l. ii. eleg. 6.
Heineccius, in a separate history, has exhausted the whole
subject of the Julian and Papian Poppaean laws, (Opp. tom. vii.
P. i. p. 1—479.)]

31 (return) [ Tacit. Annal. i. 15. Lipsius, Excursus E. in
Tacitum. Note: This error of Gibbon has been long detected. The
senate, under Tiberius did indeed elect the magistrates, who
before that emperor were elected in the comitia. But we find laws
enacted by the people during his reign, and that of Claudius. For
example; the Julia-Norbana, Vellea, and Claudia de tutela
foeminarum. Compare the Hist. du Droit Romain, by M. Hugo, vol.
ii. p. 55, 57. The comitia ceased imperceptibly as the republic
gradually expired.—W.]

32 (return) [ Non ambigitur senatum jus facere posse, is the
decision of Ulpian, (l. xvi. ad Edict. in Pandect. l. i. tit.
iii. leg. 9.) Pomponius taxes the comitia of the people as a
turba hominum, (Pandect. l. i. tit. ii. leg 9.) * Note: The
author adopts the opinion, that under the emperors alone the
senate had a share in the legislative power. They had
nevertheless participated in it under the Republic, since
senatus-consulta relating to civil rights have been preserved,
which are much earlier than the reigns of Augustus or Tiberius.
It is true that, under the emperors, the senate exercised this
right more frequently, and that the assemblies of the people had
become much more rare, though in law they were still permitted,
in the time of Ulpian. (See the fragments of Ulpian.) Bach has
clearly demonstrated that the senate had the same power in the
time of the Republic. It is natural that the senatus-consulta
should have been more frequent under the emperors, because they
employed those means of flattering the pride of the senators, by
granting them the right of deliberating on all affairs which did
not intrench on the Imperial power. Compare the discussions of M.
Hugo, vol. i. p. 284, et seq.—W.]

The silence or ambiguity of the laws was supplied by the
occasional edicts 3211 of those magistrates who were invested
with the honors of the state. 33 This ancient prerogative of the
Roman kings was transferred, in their respective offices, to the
consuls and dictators, the censors and praetors; and a similar
right was assumed by the tribunes of the people, the ediles, 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 praetor of the city. 3311 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 rigor 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 praetors; 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 praetor 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 rigor 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 praetor 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 praetor of the
year to adhere to the spirit and letter of his first
proclamation. 34 It was reserved for the curiosity and learning
of Adrian, to accomplish the design which had been conceived by
the genius of Caesar; and the praetorship 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. 35

3211 (return) [ There is a curious passage from Aurelius, a
writer on Law, on the Praetorian Præfect, quoted in Lydus de
Magistratibus, p. 32, edit. Hase. The Praetorian præfect was to
the emperor what the master of the horse was to the dictator
under the Republic. He was the delegate, therefore, of the full
Imperial authority; and no appeal could be made or exception
taken against his edicts. I had not observed this passage, when
the third volume, where it would have been more appropriately
placed, passed through the press.—M]

33 (return) [ The jus honorarium of the praetors and other
magistrates is strictly defined in the Latin text to the
Institutes, (l. 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. * Note: The author here
follows the opinion of Heineccius, who, according to the idea of
his master Thomasius, was unwilling to suppose that magistrates
exercising a judicial could share in the legislative power. For
this reason he represents the edicts of the praetors as absurd.
(See his work, Historia Juris Romani, 69, 74.) But Heineccius had
altogether a false notion of this important institution of the
Romans, to which we owe in a great degree the perfection of their
jurisprudence. Heineccius, therefore, in his own days had many
opponents of his system, among others the celebrated Ritter,
professor at Wittemberg, who contested it in notes appended to
the work of Heineccius, and retained in all subsequent editions
of that book. After Ritter, the learned Bach undertook to
vindicate the edicts of the praetors in his Historia Jurisprud.
Rom. edit. 6, p. 218, 224. But it remained for a civilian of our
own days to throw light on the spirit and true character of this
institution. M. Hugo has completely demonstrated that the
praetorian edicts furnished the salutary means of perpetually
harmonizing the legislation with the spirit of the times. The
praetors were the true organs of public opinion. It was not
according to their caprice that they framed their regulations,
but according to the manners and to the opinions of the great
civil lawyers of their day. We know from Cicero himself, that it
was esteemed a great honor among the Romans to publish an edict,
well conceived and well drawn. The most distinguished lawyers of
Rome were invited by the praetor to assist in framing this annual
law, which, according to its principle, was only a declaration
which the praetor made to the public, to announce the manner in
which he would judge, and to guard against every charge of
partiality. Those who had reason to fear his opinions might delay
their cause till the following year. The praetor was responsible
for all the faults which he committed. The tribunes could lodge
an accusation against the praetor who issued a partial edict. He
was bound strictly to follow and to observe the regulations
published by him at the commencement of his year of office,
according to the Cornelian law, by which these edicts were called
perpetual, and he could make no change in a regulation once
published. The praetor was obliged to submit to his own edict,
and to judge his own affairs according to its provisions. These
magistrates had no power of departing from the fundamental laws,
or the laws of the Twelve Tables. The people held them in such
consideration, that they rarely enacted laws contrary to their
provisions; but as some provisions were found inefficient, others
opposed to the manners of the people, and to the spirit of
subsequent ages, the praetors, still maintaining respect for the
laws, endeavored to bring them into accordance with the
necessities of the existing time, by such fictions as best suited
the nature of the case. In what legislation do we not find these
fictions, which even yet exist, absurd and ridiculous as they
are, among the ancient laws of modern nations? These always
variable edicts at length comprehended the whole of the Roman
legislature, and became the subject of the commentaries of the
most celebrated lawyers. They must therefore be considered as the
basis of all the Roman jurisprudence comprehended in the Digest
of Justinian. ——It is in this sense that M. Schrader has written
on this important institution, proposing it for imitation as far
as may be consistent with our manners, and agreeable to our
political institutions, in order to avoid immature legislation
becoming a permanent evil. See the History of the Roman Law by M.
Hugo, vol. i. p. 296, &c., vol. ii. p. 30, et seq., 78. et seq.,
and the note in my elementary book on the Industries, p. 313.
With regard to the works best suited to give information on the
framing and the form of these edicts, see Haubold, Institutiones
Literariae, tom. i. p. 321, 368. All that Heineccius says about
the usurpation of the right of making these edicts by the
praetors is false, and contrary to all historical testimony. A
multitude of authorities proves that the magistrates were under
an obligation to publish these edicts.—W. ——With the utmost
deference for these excellent civilians, I cannot but consider
this confusion of the judicial and legislative authority as a
very perilous constitutional precedent. It might answer among a
people so singularly trained as the Romans were by habit and
national character in reverence for legal institutions, so as to
be an aristocracy, if not a people, of legislators; but in most
nations the investiture of a magistrate in such authority,
leaving to his sole judgment the lawyers he might consult, and
the view of public opinion which he might take, would be a very
insufficient guaranty for right legislation.—M.]

3311 (return) [ Compare throughout the brief but admirable sketch
of the progress and growth of the Roman jurisprudence, the
necessary operation of the jusgentium, when Rome became the
sovereign of nations, upon the jus civile of the citizens of
Rome, in the first chapter of Savigny. Geschichte des Romischen
Rechts im Mittelalter.—M.]

34 (return) [ Dion Cassius (tom. i. l. xxxvi. 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. Rom.
tom. ii. p. 377, 378,) Graevius, (ad Sueton. p. 778,) Dodwell,
(Praelection. Cambden, p. 665,) and Heineccius: but a single
word, Scutum Cimbricum, detects the forgery, (Moyle’s Works, vol.
i. p. 303.)]

35 (return) [ 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. * Note: This restoration was only
the commencement of a work found among the papers of Heineccius,
and published after his death.—G. ——Note: Gibbon has here fallen
into an error, with Heineccius, and almost the whole literary
world, concerning the real meaning of what is called the
perpetual edict of Hadrian. Since the Cornelian law, the edicts
were perpetual, but only in this sense, that the praetor could
not change them during the year of his magistracy. And although
it appears that under Hadrian, the civilian Julianus made, or
assisted in making, a complete collection of the edicts, (which
certainly had been done likewise before Hadrian, for example, by
Ofilius, qui diligenter edictum composuit,) we have no sufficient
proof to admit the common opinion, that the Praetorian edict was
declared perpetually unalterable by Hadrian. The writers on law
subsequent to Hadrian (and among the rest Pomponius, in his
Summary of the Roman Jurisprudence) speak of the edict as it
existed in the time of Cicero. They would not certainly have
passed over in silence so remarkable a change in the most
important source of the civil law. M. Hugo has conclusively shown
that the various passages in authors, like Eutropius, are not
sufficient to establish the opinion introduced by Heineccius.
Compare Hugo, vol. ii. p. 78. A new proof of this is found in the
Institutes of Gaius, who, in the first books of his work,
expresses himself in the same manner, without mentioning any
change made by Hadrian. Nevertheless, if it had taken place, he
must have noticed it, as he does l. i. 8, the responsa prudentum,
on the occasion of a rescript of Hadrian. There is no lacuna in
the text. Why then should Gaius maintain silence concerning an
innovation so much more important than that of which he speaks?
After all, this question becomes of slight interest, since, in
fact, we find no change in the perpetual edict inserted in the
Digest, from the time of Hadrian to the end of that epoch, except
that made by Julian, (compare Hugo, l. c.) The latter lawyers
appear to follow, in their commentaries, the same texts as their
predecessors. It is natural to suppose, that, after the labors of
so many men distinguished in jurisprudence, the framing of the
edict must have attained such perfection that it would have been
difficult to have made any innovation. We nowhere find that the
jurists of the Pandects disputed concerning the words, or the
drawing up of the edict. What difference would, in fact, result
from this with regard to our codes, and our modern legislation?
Compare the learned Dissertation of M. Biener, De Salvii Juliani
meritis in Edictum Praetorium recte aestimandis. Lipsae, 1809,
4to.—W.]

From Augustus to Trajan, the modest Caesars were content to
promulgate their edicts in the various characters of a Roman
magistrate; 3511 and, in the decrees of the senate, the epistles
and orations of the prince were respectfully inserted. Adrian 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 Adrian 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 the darkness of ages and
the terrors of armed despotism; and a double tiction 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 Caesars, 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 vigor 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.” 41 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 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. 44 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 purple ink, 47 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. 4711 The two first, of
which some fragments have escaped, were framed by two private
lawyers, to preserve the constitutions of the Pagan emperors from
Adrian 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 epurious or
obsolete. 48

3511 (return) [ It is an important question in what manner the
emperors were invested with this legislative power. The newly
discovered Gaius distinctly states that it was in virtue of a
law—Nec unquam dubitatum est, quin id legis vicem obtineat, cum
ipse imperator per legem imperium accipiat. But it is still
uncertain whether this was a general law, passed on the
transition of the government from a republican to a monarchical
form, or a law passed on the accession of each emperor. Compare
Hugo, Hist. du Droit Romain, (French translation,) vol. ii. p.
8.—M.]

36 (return) [ His laws are the first in the code. See Dodwell,
(Praelect. Cambden, p. 319—340,) who wanders from the subject in
confused reading and feeble paradox. * Note: This is again an
error which Gibbon shares with Heineccius, and the generality of
authors. It arises from having mistaken the insignificant edict
of Hadrian, inserted in the Code of Justinian, (lib. vi, tit.
xxiii. c. 11,) for the first constitutio principis, without
attending to the fact, that the Pandects contain so many
constitutions of the emperors, from Julius Caesar, (see l. i.
Digest 29, l) M. Hugo justly observes, that the acta of Sylla,
approved by the senate, were the same thing with the
constitutions of those who after him usurped the sovereign power.
Moreover, we find that Pliny, and other ancient authors, report a
multitude of rescripts of the emperors from the time of Augustus.
See Hugo, Hist. du Droit Romain, vol. ii. p. 24-27.—W.]

37 (return) [ Totam illam veterem et squalentem sylvam legum
novis principalium rescriptorum et edictorum securibus truncatis
et caeditis; (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.]

38 (return) [ 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, Reimer, joins the
universal censure which freedom and criticism have pronounced
against that slavish historian.]

39 (return) [ 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. Note: Yet a century before, Domitian was
called not only by Martial but even in public documents, Dominus
et Deus Noster. Sueton. Domit. cap. 13. Hugo.—W.]

40 (return) [ 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 Frederic Gronovius and Noodt,
both translated, with valuable notes, by Barbeyrac, 2 vols. in
12mo. 1731.]

41 (return) [ Institut. l. i. tit. ii. No. 6. Pandect. l. i. tit.
iv. leg. 1. Cod. Justinian, l. i. tit. xvii. leg. 1, No. 7. In
his Antiquities and Elements, Heineccius has amply treated de
constitutionibus principum, which are illustrated by Godefroy
(Comment. ad Cod. Theodos. l. i. tit. i. ii. iii.) and Gravina,
(p. 87—90.) ——Note: Gaius asserts that the Imperial edict or
rescript has and always had, the force of law, because the
Imperial authority rests upon law. Constitutio principis est,
quod imperator decreto vel edicto, vel epistola constituit, nee
unquam dubitatum, quin id legis, vicem obtineat, cum ipse
imperator per legem imperium accipiat. Gaius, 6 Instit. i. 2.—M.]

42 (return) [ Theophilus, in Paraphras. Graec. Institut. p. 33,
34, edit. Reitz For his person, time, writings, see the
Theophilus of J. H. Mylius, Excurs. iii. p. 1034—1073.]

43 (return) [ There is more envy than reason in the complaint of
Macrinus (Jul. Capitolin. c. 13:) Nefas esse leges videri Commodi
et Caracalla at hominum imperitorum voluntates. Commodus was made
a Divus by Severus, (Dodwell, Praelect. viii. p. 324, 325.) Yet
he occurs only twice in the Pandects.]

44 (return) [ 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, (Terasson, p. 265.)]

45 (return) [ Plin. Secund. Epistol. x. 66. Sueton. in Domitian.
c. 23.]

46 (return) [ It was a maxim of Constantine, contra jus rescripta
non valeant, (Cod. Theodos. l. 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.]

47 (return) [ A compound of vermilion and cinnabar, which marks
the Imperial diplomas from Leo I. (A.D. 470) to the fall of the
Greek empire, (Bibliotheque Raisonnee de la Diplomatique, tom. i.
p. 504—515 Lami, de Eruditione Apostolorum, tom. ii. p.
720-726.)]

4711 (return) [ Savigny states the following as the authorities
for the Roman law at the commencement of the fifth century:— 1.
The writings of the jurists, according to the regulations of the
Constitution of Valentinian III., first promulgated in the West,
but by its admission into the Theodosian Code established
likewise in the East. (This Constitution established the
authority of the five great jurists, Papinian, Paulus, Caius,
Ulpian, and Modestinus as interpreters of the ancient law. * * *
In case of difference of opinion among these five, a majority
decided the case; where they were equal, the opinion of Papinian,
where he was silent, the judge; but see p. 40, and Hugo, vol. ii.
p. 89.) 2. The Gregorian and Hermogenian Collection of the
Imperial Rescripts. 3. The Code of Theodosius II. 4. The
particular Novellae, as additions and Supplements to this Code
Savigny. vol. i. p 10.—M.]

48 (return) [ Schulting, Jurisprudentia Ante-Justinianea, p.
681-718. Cujacius assigned to Gregory the reigns from Hadrian to
Gallienus. and the continuation to his fellow-laborer Hermogenes.
This general division may be just, but they often trespassed on
each other’s ground]