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the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate.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. ^* 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
[Footnote *: 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.]
[Footnote 36: 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