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which much learning is found in the early Roman laws, and in the comments of the civilians.
The original permission to officers to dispose of their offices was not an absolute surrender by the emperors of their rights, but simply a reward for long and faithful services. The recommendation of the original appointee was not binding in law, it was only a jus ad militiam, which became valid when the appointment was duly made by commission, the real jus
The imperial prerogative was limited, but not seriously affected by this innovation of the sale of offices; for the power was reserved to control, and even to refuse to appoint, candidates presented; as well as the right to remove officers found unfit for their position, and to suppress offices, and to create others, which of course were powers fatal to the salable value of an existing office. In certain employments, "dummodo et is qui subrogatur electione quæstoris fiat," the nomination depended on the chief of the bureau, through whom, and with whose recommendation, the out-going officer submitted to the emperor the name of his successor.
With this and the other restrictions already referred to, the owner of an office always took it with a view to its resale, "quæ emeris vendere jus gentium est," and any loss of this right was a subject of reclamation.
As a primary rule, the officers were removable, for in the early years of the republic, the consuls Tarquin, Collatinus, and Lucius Flaminius, were deprived of their offices. Under the empire, the accession of Alexander Severus was distinguished, among other reforms, by numerous clearings out of judges, and governors of provinces. The Latin phrase, "mittere successorem," itself, shows the acknowledged right. Consuls under the republic, judges and governors under the empire, were all offices given gratuitously, but the militia, the offices of the emperor's household, and those of the different governors, were regularly bought and sold; to deprive their owners of them without compensation, was to take so much of their property.
While therefore the right of removal was recognized and maintained, the right to compensation was admitted; and the
successor, whether of his own choice, or imposed on him by superior authority, was obliged to pay to his predecessor, as an indemnity, the fixed price.
Even in case of a suspension, the right to the indemnity remained, and it was lost only where the officer himself abandoned his duties for five years: "quinquennium si fuerit divagatus, ipso jam cingulo spoliandus est."
The love of pomp and magnificence exhibited by the emperors of the East, led rapidly to a proportionate increase in the number of their officers.
The firm adherence to the proprietary right of existing offices, prevented their suppression, and led to the establishment of new offices, to be filled by new favorites. As they were all paid by the government, and not by fees, there was no clashing of interest, or question of compensation, and all were satisfied.
The offices thus created were mainly the following: Scribæ et Tabularii, subordinate to the older notarius, described by St. Augustine (lib. ii., de Doctrina Christi), "notas qui didicerunt proprie notarii appellantur." The notarii prepared opinions and drew contracts; the scriba registered them, and the tabularii prepared the certified copies.
These offices were important even in the days of the Greek republic, but in Rome they had fallen into the hands of the slaves. The emperors Arcadius and Honorius secured them for the citizens, and divided them into three classes: "scribæ, defensores civitatum, judices pedanei." The improvement thus begun, ended in an effort of the citizens to avoid the unpaid labor of these offices, by becoming domestic officers of the emperors; thus avoiding the necessity of accepting public offices, and to remedy this it was necessary to enact by L. 3, Cod. de scribis tabulariis et logographis (lib. x., 1, 69), that these offices should be held by the emperor's own people.
This was followed by laws of Honorius and Theodosius, limiting these offices to the households of governors of provinces; and of Justinian, limiting them to the offices of the presidents, and subdividing them into exceptores, who wrote out judicial opinions, "acta judiciorum scribebant," and were called "notarii, quia notis scribebant acta præsidium;" the
regendarii, who registered these opinions, " regerere enim iterum gerere est et inde regestum seu scriptum ;" cancellarii, who prepared the pleadings, and drafted decrees, and actuarii, who received and recorded all voluntary legal acts, such, for example, as emancipation, adoption, contracts, and wills.
The later emperors established as a class of great importance, their own secretaries or notarii, "præclaram nobilemque militiam spectabilium tribunorum notariorum qui gloriosis obsequiis nonnihil reipublicæ commoditatis afferunt et decoris, diversis beneficiorum titulis muniendam credimus et augendam" (Cod. de primicerio et sec. et not., L. 12, t. 7).
They were also called tribuni and candidati, partly because they were recognized as on the high road to great preferment, and partly because they wore white robes, "qui familiaritate regum utebantur, purpurati regum vocabantur sicut apud nos a toga candidata candidati" (Tertullian, lib. de Idolatria).
They were also distinguished as tribuni prætoriani et notarii, with the title of comites, as tribuni et notarii, and as notarii familiares sive domestici. Their senior was called primicerius notariorum, and had the dignity of a proconsul, and a place among the illustres.
The second class of offices created by the later emperors, and made subject to the right of sale, was the Procuratores ad lites. It was not until six centuries after the foundation of Rome, that the law provided for representation by counsel; at first there were two classes, the cognitores and the procuratores, but the latter only existed in the latter empire. At no time, however, had they any public character, or any recognition other than that of persons doing an act of friendship, not exercising any avowed or acknowledged professional relation.
The last class of new offices was the viatores or executores, corresponding to the apparitores and statores of the republic, with the duties of our sheriff's officers and tipstaffs, that is, to notify parties to actions and their witnesses and others in interest.
The Roman empire during its existence of eleven centuries, had thrown out roots too deep in the spirit of its institutions, to be lost sight of when the first efforts toward reorganization
followed the disorders of the conquest. The laws of the barbarians were almost entirely silent as to offices. The edict of Theodoric (edictum Theodorici regis) is the only legislative record in which the subject is mentioned. In his efforts to get the Goths to adopt Roman institutions, he adopted the Roman legislation. Just as the emperors of old endeavored to throw on the governors of provinces the cares and troubles of administration, the first conquerors imitated them, by establishing, in the different parts of their newly-acquired regions, their own companions with the titles of dukes and counts, and under the obligation of doing homage to their chief; this was the origin of the feudal system.
In the midst of frightful confusion, and in the absence of any idea of territorial unity, force took the place of law. Proud of their audacity, and strong in their mutual support, these dukes and counts soon made themselves absolute masters of their local governments; surrounded by officers of their own appointment: all soldiers, treasury agents, judges, served their masters first, and it was not until the fifteenth century, that the kings of France secured these important powers, and, even then, the petty magistrates were appointed by the petty lords.
The old mischief of a double set of officers, those appointed by the emperor and those appointed by the lords, was as usual followed by an enormous multiplication of offices. The court of Charlemagne had as many titles of honor as the court of any Roman emperor. By the end of the twelfth century, the offices were distinguished as feudal and territorial. In three centuries after, they were venal or non-venal, and down to the fall of the French monarchy, the increase of both classes was enormous. There were plentiful promises of reform, some efforts to legislate, but no real improvement, and although the States General as early as 1483 had begun to agitate the subject, it was not one of the least of the evils that the National Assembly had to contend with at the outbreak of the Revolution.
The multiplication of offices was due solely to the want of money; direct taxation exhausted, resources of every other sort drained, public discontent past endurance, the creation of
new offices was invariably a safe resort, and new fools and new funds were found without difficulty or stint, while the only resource for a livelihood in the offices so eagerly and so dearly bought, was in a resale sooner or later.
The purchase and sale of offices may be distinctly traced in the current of French history.
An ordinance of March 19, 1314, expressly enacts:
"Quod de cætero nullus serviens noster spatarius vel quicunque alius cujuscunque conditionis existat, servitium vel officium sibi concessum alii cuicumque locare valeat, quocumque colore quæsito, alias ipso facto, servitium vel officium amittat."
Other ordinances show that although the practice existed, it was covert and illegal, clandestine, and under the risk of severe punishment.
Boniface VIII. refused to canonize Saint Louis because he had farmed out his offices, and particularly, "per id tempus præpositura Parisiensis venalis habebatur," and even this was corrected.
At all times, however, of this earlier and purer history, there was a wise distinction between the revenue and the judicial officers, and the latter were kept as nearly as possible free from any charge of venality.
The former were soon made hereditary as well as venal, first perpetual under Louis XI., they were sold under Louis XII. and Francis I., and were made hereditary under Henry IV., a right that was well established early in the seventeenth century.
The suggestion of selling offices to pay debts has been attributed to the example of the Venetians, and to that of the ecclesiastical preferments, and the latter seems to be the source whence Louis XII. drew his rules.
The primitive purity of the church was well established in its condemnation of all sales: Superior Ecclesiæ adeo speciem omnem et suspicionem negotiationis in his adversabatur, ut resignationem in favorem certæ personæ etiam nulla pensione, nullo jure retento execraretur, impietatis quæ simoniæ damnaret.
The popes, however, in their capacity as head of the church, took away the right of election, and, finally, havir got pos