Page:1909historyofdec04gibbuoft.djvu/544

478 THE DECLINE AND FALL [Chap, xliv plebeian legislators, whom numbers made formidable and poverty secure, were supplanted by six hundred senators, who held their honours, their fortunes, and their lives by the clemency of the Decrees or 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 free- dom, 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 per- verted by fear or interest. 33 Edictsof The silence or ambiguity of the laws was supplied by the tors occasional edicts of those magistrates who were invested with the honours of the state. 33 This ancient prerogative of the Roman kings was transferred, in the respective offices, to the consuls and dictators, the censors and praetors ; and a similar right was assumed by the tribunes of the people, the aediles, 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. 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 rigour 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 de- feat the plainest meaning of the Decemvirs ; and, where the end 32 Non ambigitur senatum jus facere posse, is the decision of Ulpian (1. xvi. ad Edict, in Pandect. 1. i. tit. iii. leg. 9). Pomponius taxes the comitia of the people as a turba hominum (Pandect. 1. i. tit. ii. leg. 9). 33 The jus honorarium of the prtetors and other magistrates iB strictly defined in the Latin text of the Institutes (1. i. tit. ii. No. 7), and more loosely explained in the Greek paraphrase of Theophilus (p. 33-38, edit. Reitz), who drops the im- portant word honorarium. [The praetorian ius as a source of equity is treated in a very interesting manner by Sir Henry Maine, Ancient Law, c. 3.]