OF THE ROMAN EMPIRE
451
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 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,"[1] 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,[2] and an irrevocable gift of the people, were created by the fancy of Ulpian, or more probably of Tribonian himself;[3] and the origin of Imperial power, though false in fact and slavish in its consequence, was supported on a principle of freedom and justice. Their legislative power "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."[4] The will of a single man, of a child perhaps, was
- ↑ The constitutional style of Legibus solutus is misinterpreted by the art or ignorance of Dion Cassius (tom. i. l. liii. p. 713 [c. 18]). 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. [It was the Lex de Imperio; see above, vol. i. p. 65. — Lex regia is an incorrect and late phrase. It ought to mean a law proposed by a rex, not pertaining to a rex; and the words rex, regius were never associated officially with the Emperor. The phrase occurs in the text of Ulpian, but is probably an interpolation — if not, as Mommsen suggests, a Syrian provincialism. See Mommsen, Staatsrecht, 2, 869.]
- ↑ 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 Frederick Gronovius and Noodt, both translated with valuable notes, by Barbeyrac, 2 vols, in 12mo, 1731.
- ↑ Institut. l. i. tit. ii. No. 6; Pandect. l. i. tit. iv. leg. i.; Cod. Justinian, l. 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. l. i. tit. i. ii. iii.) and Gravina (p. 87-90).
