The History of the Decline and Fall of the Roman Empire - Edward Gibbon [1395]
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.]
[Footnote *: 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.]
[Footnote 34: 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.)]
[Footnote 35: 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