452
THE DECLINE AND FALL
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."[1] 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;[2] and the purest materials of the Code and Pandects are inscribed with the names of Caracalla and his ministers.[3] 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the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate.[4] Their rescripts Yet in the rescripts,[5] replies to the consultations of the magistrates, the wisest of princes might be deceived by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
- ↑ Theophilus, in Paraphras. Græc. Institut. p. 33, 34, edit. Reitz. For his person, time, writings, see the Theophilus of J. H. Mylius, Excurs. iii. p. 1034-1073.
- ↑ 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. viii. p. 324, 325). Yet he occurs only twice in the Pandects.
- ↑ 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 (Terrasson, p. 265).
- ↑ Plin. Secund. Epistol. x. 66. Sueton. in Domitian. c. 23.
- ↑ 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.
