Decline and Fall of The Roman Empire

Gibbon's The Decline And Fall Of The Roman Empire

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24-27. - W.]

[Footnote 37: Totam illam veterem et squalentem sylvam legum novis principalium rescriptorum et edictorum securibus truncatis et caeditis; (Apologet. c. 4, p. 50, edit. Havercamp.) He proceeds to praise the recent firmness of Severus, who repealed the useless or pernicious laws, without any regard to their age or authority.]

[Footnote 38: The constitutional style of Legibus Solutus is misinterpreted by the art or ignorance of Dion Cassius, (tom. i.

  1. liii. p. 713.) On this occasion, his editor, Reimer, joins the universal censure which freedom and criticism have pronounced against that slavish historian.] [Footnote 39: 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.

Note: Yet a century before, Domitian was called not only by

Martial but even in public documents, Dominus et Deus Noster. Sueton. Domit. cap. 13. Hugo. - W.]

[Footnote 40: See Gravina (Opp. p. 501 - 512) and Beaufort, (Republique Romaine, tom. i. p. 255 - 274.) He has made a proper use of two dissertations by John Frederic Gronovius and Noodt, both translated, with valuable notes, by Barbeyrac, 2 vols. in 12mo. 1731.]

[Footnote 41: Institut. l. i. tit. ii. No. 6. Pandect. l. i. tit. iv. leg. 1. Cod. Justinian, l. i. tit. xvii. leg. 1, 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,

  1. 87 - 90.)

Note: Gaius asserts that the Imperial edict or rescript has

and always had, the force of law, because the Imperial authority rests upon law. Constitutio principis est, quod imperator decreto vel edicto, vel epistola constituit, nee unquam dubitatum, quin id legis, vicem obtineat, cum ipse imperator per legem imperium accipiat. Gaius, 6 Instit. i. 2. - M.] [Footnote 42: Theophilus, in Paraphras. Graec. Institut. p. 33, 34, edit. Reitz For his person, time, writings, see the Theophilus of J. H. Mylius, Excurs. iii. p. 1034 - 1073.]

[Footnote 43: There is more envy than reason in the complaint of Macrinus (Jul. Capitolin. c. 13:) Nefas esse leges videri Commodi et Caracalla at hominum imperitorum voluntates. Commodus was made a Divus by Severus, (Dodwell, Praelect. viii. p. 324, 325.) Yet he occurs only twice in the Pandects.]

[Footnote 44: 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, (Terasson, p. 265.)] [Footnote 45: Plin. Secund. Epistol. x. 66. Sueton. in Domitian.

  1. 23.] [Footnote 46: 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.]

[Footnote 47: A compound of vermilion and cinnabar, which marks the Imperial diplomas from Leo I. (A.D. 470) to the fall of the Greek empire, (Bibliotheque Raisonnee de la Diplomatique, tom. i.

  1. 504 - 515 Lami, de Eruditione Apostolorum, tom. ii. p. 720 - 726.)]

[Footnote *: Savigny states the following as the authorities for the Roman law at the commencement of the fifth century: -

  1. The writings of the jurists, according to the regulations

of the Constitution of Valentinian III., first promulgated in the West, but by its admission into the Theodosian Code established likewise in the East. (This Constitution established the authority of the five great jurists, Papinian, Paulus, Caius, Ulpian, and Modestinus as interpreters of the ancient law. * * * In case of difference of opinion among these five, a majority decided the case; where they were equal, the opinion of Papinian, where he was silent, the judge; but see p. 40, and Hugo, vol. ii.

  1. 89.)

  1. The Gregorian and Hermogenian Collection of the Imperial Rescripts.
  2. The Code of Theodosius II.

    1. The particular Novellae, as additions and Supplements to

this Code Savigny. vol. i. p 10. - M.]

[Footnote 48: Schulting, Jurisprudentia Ante-Justinianea, p. 681

  • 718. Cujacius assigned to Gregory the reigns from Hadrian to Gallienus. and the continuation to his fellow-laborer Hermogenes.

This general division may be just, but they often trespassed on each other's ground]

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Fall of Roman Empire