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History of the Decline and Fall of the Roman Empir

Yet he occurs only twice in the Pandects


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

style="text-align: justify;">[Footnote 4711: 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. p. 89.) 2. The Gregorian and Hermogenian Collection of the Imperial Rescripts. 3. The Code of Theodosius II. 4. 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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Chapter XLIV: Idea Of The Roman Jurisprudence.--Part III.

Among savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage-life was denoted by the necessary elements of fire and water; [49] and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted


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