chap, xliv] OF THE ROMAN EMPIRE 481 royal law, 39 and an irrevocable gift of the people, were created by the fancy of Ulpian, or more probably of Tribonian himself ; 40 and the origin of Imperial power, though false in fact and slavish in its consequence, was supported on a principle of freedom and justice. " The pleasure of the emperor has the vigour and effect of law, since the Roman people by the royal law have transferred Their legis- to their prince the full extent of their own power and sove- power reignty." 41 The will of a single 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 Theo- philus in the court of Justinian, " can reach the calm and sub- lime 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 considera- tions. 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 ; 4S 39 The word (Lex Regia) was still more recent than the thing. The slaves of Coniinodus or Caracalla would have started at the name of royalty. [It was the Lex de Imperio ; see above, vol. i. p. 73. — Lex regia is an incorrect and late phrase. It ought to mean a law proposed by a rex, not pertaining to a rex ; and the words rex, regius were never associated officially with the Emperor. The phrase occurs in the text of Ulpian, but is probably an interpolation — if not, as Mommsen suggests, a Syrian provincialism. See Mommsen, Staatsrecht, 2, 869.] 40 See Gravina (Opp. p. 501-512) and Beaufort (Republique Romaine, torn. i. p. 255-274). He has made a proper use of two dissertations by John Frederick Gronovius and Noodt, both translated with valuable notes, by Barbeyrac, 2 vols. in 12mo, 1731. 41 Institut. 1. i. tit. ii. No. 6 ; Pandect. 1. i. tit. iv. leg. i. ; Cod. Justinian, 1. i. tit. xvii. leg. i. No. 7. In his antiquities and elements, Heineccius has amply treated de constitutionibus principum, which are illustrated by Godefroy (Comment, ad Cod. Theodos. 1. i. tit. i. ii. iii.) and Gravina (p. 87-90). 42 Tneophilus, in Paraphras. Grsec. Institut. p. 33, 34, edit. Beitz. For his person, time, writings, see the Theophilus of J. H. Mylius, Excurs. iii. p. 1034- 1073. [See Heimbach's Prolegomena, p. 12, in vol. vi. of his edition of the Basilica. The Paraphrasis has been edited by Ferrini, in 2 vols., 1884-97.] 43 There is more envy than reason in the complaint of MacrinuB (Jul. Capitolin. c. 13) : Nefas esse leges videri Commodi et CaracallBe et hominum imperitorum voluntates. Commodus was made a Divus by Severus (Dodwell, Prelect, viii. p. 324, 325). Yet he occurs only twice in the Pandects. VOL. IV. — 31
