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surprised and routed; but their leader refused to fly; declaring to the last moment, that death was less terrible than the angry countenance of Narses. ^* The death of Fulcaris, and the retreat of the surviving chiefs, decided the fluctuating and rebellious temper of the Goths; they flew to the standard of their deliverers, and admitted them into the cities which still resisted the arms of the Roman general. The conqueror of Italy opened a free passage to the irresistible torrent of Barbarians. They passed under the walls of Cesena, and answered by threats and reproaches the advice of Aligern, ^! that the Gothic treasures could no longer repay the labor of an invasion. Two thousand Franks were destroyed by the skill and valor of Narses himself, who sailed from Rimini at the head of three hundred horse, to chastise the licentious rapine of their march. On the confines of Samnium the two brothers divided their forces. With the right wing, Buccelin assumed the spoil of Campania, Lucania, and Bruttium; with the left, Lothaire accepted the plunder of Apulia and Calabria. They followed the coast of the Mediterranean and the Adriatic, as far as Rhegium and Otranto, and the extreme lands of Italy were the term of their destructive progress. The Franks, who were Christians and Catholics, contented themselves with simple pillage and occasional murder. But the churches which their piety had spared, were stripped by the sacrilegious hands of the Alamanni, who sacrificed horses’ heads to their native deities of the woods and rivers; ^49 they melted or profaned the consecrated vessels, and the ruins of shrines and altars were stained with the blood of the faithful. Buccelin was actuated by ambition, and Lothaire by avarice. The former aspired to restore the Gothic kingdom; the latter, after a promise to his brother of speedy succors, returned by the same road to deposit his treasure beyond the Alps. The strength of their armies was already wasted by the change of climate and contagion of disease: the Germans revelled in the vintage of Italy; and their own intemperance avenged, in some degree, the miseries of a defenceless people. ^*

[Footnote 48: Among the fabulous exploits of Buccelin, he discomfited and slew Belisarius, subdued Italy and Sicily, &c. See in the Historians of France, Gregory of Tours, (tom. ii. l. iii. c. 32, p. 203,) and Aimoin, (tom. iii. l. ii. de Gestis Francorum, c. 23, p. 59.)]

[Footnote *: …. Agathius.]

[Footnote !: Aligern, after the surrender of Cumae, had been sent to Cesent by Narses. Agathias. – M.]

[Footnote 49: Agathias notices their superstition in a philosophic tone, (l. i. p. 18.) At Zug, in Switzerland, idolatry still prevailed in the year 613: St. Columban and St. Gaul were the apostles of that rude country; and the latter founded a hermitage, which has swelled into an ecclesiastical principality and a populous city, the seat of freedom and commerce.] [Footnote *: A body of Lothaire’s troops was defeated near Fano, some were driven down precipices into the sea, others fled to the camp; many prisoners seized the opportunity of making their escape; and the Barbarians lost most of their booty in their precipitate retreat. Agathias. – M.]
At the entrance of the spring, the Imperial troops, who had guarded the cities, assembled, to the number of eighteen thousand men, in the neighborhood of Rome. Their winter hours had not been consumed in idleness. By the command, and after the example, of Narses, they repeated each day their military exercise on foot and on horseback, accustomed their ear to obey the sound of the trumpet, and practised the steps and evolutions of the Pyrrhic dance. From the Straits of Sicily, Buccelin, with thirty thousand Franks and Alamanni, slowly moved towards Capua, occupied with a wooden tower the bridge of Casilinum, covered his right by the stream of the Vulturnus, and secured the rest of his encampment by a rampart of sharp stakes, and a circle of wagons, whose wheels were buried in the earth. He impatiently expected the return of Lothaire; ignorant, alas! that his brother could never return, and that the chief and his army had been swept away by a strange disease ^50 on the banks of the Lake Benacus, between Trent and Verona. The banners of Narses soon approached the Vulturnus, and the eyes of Italy were anxiously fixed on the event of this final contest. Perhaps the talents of the Roman general were most conspicuous in the calm operations which precede the tumult of a battle. His skilful movements intercepted the subsistence of the Barbarian deprived him of the advantage of the bridge and river, and in the choice of the ground and moment of action reduced him to comply with the inclination of his enemy. On the morning of the important day, when the ranks were already formed, a servant, for some trivial fault, was killed by his master, one of the leaders of the Heruli. The justice or passion of Narses was awakened: he summoned the offender to his presence, and without listening to his excuses, gave the signal to the minister of death. If the cruel master had not infringed the laws of his nation, this arbitrary execution was not less unjust than it appears to have been imprudent. The Heruli felt the indignity; they halted: but the Roman general, without soothing their rage, or expecting their resolution, called aloud, as the trumpets sounded, that unless they hastened to occupy their place, they would lose the honor of the victory. His troops were disposed ^51 in a long front, the cavalry on the wings; in the centre, the heavy-armed foot; the archers and slingers in the rear. The Germans advanced in a sharp-pointed column, of the form of a triangle or solid wedge. They pierced the feeble centre of Narses, who received them with a smile into the fatal snare, and directed his wings of cavalry insensibly to wheel on their flanks and encompass their rear. The host of the Franks and Alamanni consisted of infantry: a sword and buckler hung by their side; and they used, as their weapons of offence, a weighty hatchet and a hooked javelin, which were only formidable in close combat, or at a short distance. The flower of the Roman archers, on horseback, and in complete armor, skirmished without peril round this immovable phalanx; supplied by active speed the deficiency of number; and aimed their arrows against a crowd of Barbarians, who, instead of a cuirass and helmet, were covered by a loose garment of fur or linen. They paused, they trembled, their ranks were confounded, and in the decisive moment the Heruli, preferring glory to revenge, charged with rapid violence the head of the column. Their leader, Sinbal, and Aligern, the Gothic prince, deserved the prize of superior valor; and their example excited the victorious troops to achieve with swords and spears the destruction of the enemy. Buccelin, and the greatest part of his army, perished on the field of battle, in the waters of the Vulturnus, or by the hands of the enraged peasants: but it may seem incredible, that a victory, ^52 which no more than five of the Alamanni survived, could be purchased with the loss of fourscore Romans. Seven thousand Goths, the relics of the war, defended the fortress of Campsa till the ensuing spring; and every messenger of Narses announced the reduction of the Italian cities, whose names were corrupted by the ignorance or vanity of the Greeks. ^53 After the battle of Casilinum, Narses entered the capital; the arms and treasures of the Goths, the Franks, and the Alamanni, were displayed; his soldiers, with garlands in their hands, chanted the praises of the conqueror; and Rome, for the last time, beheld the semblance of a triumph.

[Footnote 50: See the death of Lothaire in Agathias (l. ii. p. 38) and Paul Warnefrid, surnamed Diaconus, (l. ii. c. 3, 775.) The Greek makes him rave and tear his flesh. He had plundered churches.]

[Footnote 51: Pere Daniel (Hist. de la Milice Francoise, tom. i. p. 17 – 21) has exhibited a fanciful representation of this battle, somewhat in the manner of the Chevalier Folard, the once famous editor of Polybius, who fashioned to his own habits and opinions all the military operations of antiquity.] [Footnote 52: Agathias (l. ii. p. 47) has produced a Greek epigram of six lines on this victory of Narses, which a favorably compared to the battles of Marathon and Plataea. The chief difference is indeed in their consequences – so trivial in the former instance – so permanent and glorious in the latter. Note: Not in the epigram, but in the previous observations – M.]
[Footnote 53: The Beroia and Brincas of Theophanes or his transcriber (p. 201) must be read or understood Verona and Brixia.]

After a reign of sixty years, the throne of the Gothic kings was filled by the exarchs of Ravenna, the representatives in peace and war of the emperor of the Romans. Their jurisdiction was soon reduced to the limits of a narrow province: but Narses himself, the first and most powerful of the exarchs, administered above fifteen years the entire kingdom of Italy. Like Belisarius, he had deserved the honors of envy, calumny, and disgrace: but the favorite eunuch still enjoyed the confidence of Justinian; or the leader of a victorious army awed and repressed the ingratitude of a timid court. Yet it was not by weak and mischievous indulgence that Narses secured the attachment of his troops. Forgetful of the past, and regardless of the future, they abused the present hour of prosperity and peace. The cities of Italy resounded with the noise of drinking and dancing; the spoils of victory were wasted in sensual pleasures; and nothing (says Agathias) remained unless to exchange their shields and helmets for the soft lute and the capacious hogshead. ^54 In a manly oration, not unworthy of a Roman censor, the eunuch reproved these disorderly vices, which sullied their fame, and endangered their safety. The soldiers blushed and obeyed; discipline was confirmed; the fortifications were restored; a duke was stationed for the defence and military command of each of the principal cities; ^55 and the eye of Narses pervaded the ample prospect from Calabria to the Alps. The remains of the Gothic nation evacuated the country, or mingled with the people; the Franks, instead of revenging the death of Buccelin, abandoned, without a struggle, their Italian conquests; and the rebellious Sinbal, chief of the Heruli, was subdued, taken and hung on a lofty gallows by the inflexible justice of the exarch. ^56 The civil state of Italy, after the agitation of a long tempest, was fixed by a pragmatic sanction, which the emperor promulgated at the request of the pope. Justinian introduced his own jurisprudence into the schools and tribunals of the West; he ratified the acts of Theodoric and his immediate successors, but every deed was rescinded and abolished which force had extorted, or fear had subscribed, under the usurpation of Totila. A moderate theory was framed to reconcile the rights of property with the safety of prescription, the claims of the state with the poverty of the people, and the pardon of offences with the interest of virtue and order of society. Under the exarchs of Ravenna, Rome was degraded to the second rank. Yet the senators were gratified by the permission of visiting their estates in Italy, and of approaching, without obstacle, the throne of Constantinople: the regulation of weights and measures was delegated to the pope and senate; and the salaries of lawyers and physicians, of orators and grammarians, were destined to preserve, or rekindle, the light of science in the ancient capital. Justinian might dictate benevolent edicts, ^57 and Narses might second his wishes by the restoration of cities, and more especially of churches. But the power of kings is most effectual to destroy; and the twenty years of the Gothic war had consummated the distress and depopulation of Italy. As early as the fourth campaign, under the discipline of Belisarius himself, fifty thousand laborers died of hunger ^58 in the narrow region of Picenum; ^59 and a strict interpretation of the evidence of Procopius would swell the loss of Italy above the total sum of her present inhabitants. ^60
[Footnote 54: (Agathias, l. ii. p. 48.) In the first scene of Richard III. our English poet has beautifully enlarged on this idea, for which, however, he was not indebted to the Byzantine historian.]

[Footnote 55: Maffei has proved, (Verona Illustrata. P. i. l. x. p. 257, 289,) against the common opinion, that the dukes of Italy were instituted before the conquest of the Lombards, by Narses himself. In the Pragmatic Sanction, (No. 23,) Justinian restrains the judices militares.]

[Footnote 56: See Paulus Diaconus, liii. c. 2, p. 776. Menander in (Excerp Legat. p. 133) mentions some risings in Italy by the Franks, and Theophanes (p. 201) hints at some Gothic rebellions.]

[Footnote 57: The Pragmatic Sanction of Justinian, which restores and regulates the civil state of Italy, consists of xxvii. articles: it is dated August 15, A.D. 554; is addressed to Narses, V. J. Praepositus Sacri Cubiculi, and to Antiochus, Praefectus Praetorio Italiae; and has been preserved by Julian Antecessor, and in the Corpus Juris Civilis, after the novels and edicts of Justinian, Justin, and Tiberius.]

[Footnote 58: A still greater number was consumed by famine in the southern provinces, without the Ionian Gulf. Acorns were used in the place of bread. Procopius had seen a deserted orphan suckled by a she-goat. Seventeen passengers were lodged, murdered, and eaten, by two women, who were detected and slain by the eighteenth, &c.

Note: Denina considers that greater evil was inflicted upon Italy by the Urocian conquest than by any other invasion. Reveluz. d’ Italia, t. i. l. v. p. 247. – M.]

[Footnote 59: Quinta regio Piceni est; quondam uberrimae multitudinis, ccclx. millia Picentium in fidem P. R. venere, (Plin. Hist. Natur. iii. 18.) In the time of Vespasian, this ancient population was already diminished.] [Footnote 60: Perhaps fifteen or sixteen millions. Procopius (Anecdot. c. 18) computes that Africa lost five millions, that Italy was thrice as extensive, and that the depopulation was in a larger proportion. But his reckoning is inflamed by passion, and clouded with uncertainty.]

I desire to believe, but I dare not affirm, that Belisarius sincerely rejoiced in the triumph of Narses. Yet the consciousness of his own exploits might teach him to esteem without jealousy the merit of a rival; and the repose of the aged warrior was crowned by a last victory, which saved the emperor and the capital. The Barbarians, who annually visited the provinces of Europe, were less discouraged by some accidental defeats, than they were excited by the double hope of spoil and of subsidy. In the thirty-second winter of Justinian’s reign, the Danube was deeply frozen: Zabergan led the cavalry of the Bulgarians, and his standard was followed by a promiscuous multitude of Sclavonians. ^* The savage chief passed, without opposition, the river and the mountains, spread his troops over Macedonia and Thrace, and advanced with no more than seven thousand horse to the long wall, which should have defended the territory of Constantinople. But the works of man are impotent against the assaults of nature: a recent earthquake had shaken the foundations of the wall; and the forces of the empire were employed on the distant frontiers of Italy, Africa, and Persia. The seven schools, ^61 or companies of the guards or domestic troops, had been augmented to the number of five thousand five hundred men, whose ordinary station was in the peaceful cities of Asia. But the places of the brave Armenians were insensibly supplied by lazy citizens, who purchased an exemption from the duties of civil life, without being exposed to the dangers of military service. Of such soldiers, few could be tempted to sally from the gates; and none could be persuaded to remain in the field, unless they wanted strength and speed to escape from the Bulgarians. The report of the fugitives exaggerated the numbers and fierceness of an enemy, who had polluted holy virgins, and abandoned new-born infants to the dogs and vultures; a crowd of rustics, imploring food and protection, increased the consternation of the city, and the tents of Zabergan were pitched at the distance of twenty miles, ^62 on the banks of a small river, which encircles Melanthias, and afterwards falls into the Propontis. ^63 Justinian trembled: and those who had only seen the emperor in his old age, were pleased to suppose, that he had lost the alacrity and vigor of his youth. By his command the vessels of gold and silver were removed from the churches in the neighborhood, and even the suburbs, of Constantinople; the ramparts were lined with trembling spectators; the golden gate was crowded with useless generals and tribunes, and the senate shared the fatigues and the apprehensions of the populace.

[Footnote *: Zabergan was king of the Cutrigours, a tribe of Huns, who were neither Bulgarians nor Sclavonians. St. Martin, vol. ix. p. 408 – 420. – M]
[Footnote 61: In the decay of these military schools, the satire of Procopius (Anecdot. c. 24, Aleman. p. 102, 103) is confirmed and illustrated by Agathias, (l. v. p. 159,) who cannot be rejected as a hostile witness.]
[Footnote 62: The distance from Constantinople to Melanthias, Villa Caesariana, (Ammian. Marcellin. xxx. 11,) is variously fixed at 102 or 140 stadia, (Suidas, tom. ii. p. 522, 523. Agathias, l. v. p. 158,) or xviii. or xix. miles, (Itineraria, p. 138, 230, 323, 332, and Wesseling’s Observations.) The first xii. miles, as far as Rhegium, were paved by Justinian, who built a bridge over a morass or gullet between a lake and the sea, (Procop. de Edif. l. iv. c. 8.)]

[Footnote 63: The Atyras, (Pompon. Mela, l. ii. c. 2, p. 169, edit. Voss.) At the river’s mouth, a town or castle of the same name was fortified by Justinian, (Procop. de Edif. l. iv. c. 2. Itinerar. p. 570, and Wesseling.)]
But the eyes of the prince and people were directed to a feeble veteran, who was compelled by the public danger to resume the armor in which he had entered Carthage and defended Rome. The horses of the royal stables, of private citizens, and even of the circus, were hastily collected; the emulation of the old and young was roused by the name of Belisarius, and his first encampment was in the presence of a victorious enemy. His prudence, and the labor of the friendly peasants, secured, with a ditch and rampart, the repose of the night; innumerable fires, and clouds of dust, were artfully contrived to magnify the opinion of his strength; his soldiers suddenly passed from despondency to presumption; and, while ten thousand voices demanded the battle, Belisarius dissembled his knowledge, that in the hour of trial he must depend on the firmness of three hundred veterans. The next morning the Bulgarian cavalry advanced to the charge. But they heard the shouts of multitudes, they beheld the arms and discipline of the front; they were assaulted on the flanks by two ambuscades which rose from the woods; their foremost warriors fell by the hand of the aged hero and his gnards; and the swiftness of their evolutions was rendered useless by the close attack and rapid pursuit of the Romans. In this action (so speedy was their flight) the Bulgarians lost only four hundred horse; but Constantinople was saved; and Zabergan, who felt the hand of a master, withdrew to a respectful distance. But his friends were numerous in the councils of the emperor, and Belisarius obeyed with reluctance the commands of envy and Justinian, which forbade him to achieve the deliverance of his country. On his return to the city, the people, still conscious of their danger, accompanied his triumph with acclamations of joy and gratitude, which were imputed as a crime to the victorious general. But when he entered the palace, the courtiers were silent, and the emperor, after a cold and thankless embrace, dismissed him to mingle with the train of slaves. Yet so deep was the impression of his glory on the minds of men, that Justinian, in the seventy-seventh year of his age, was encouraged to advance near forty miles from the capital, and to inspect in person the restoration of the long wall. The Bulgarians wasted the summer in the plains of Thrace; but they were inclined to peace by the failure of their rash attempts on Greece and the Chersonesus. A menace of killing their prisoners quickened the payment of heavy ransoms; and the departure of Zabergan was hastened by the report, that double-prowed vessels were built on the Danube to intercept his passage. The danger was soon forgotten; and a vain question, whether their sovereign had shown more wisdom or weakness, amused the idleness of the city. ^64

[Footnote 64: The Bulgarian war, and the last victory of Belisarius, are imperfectly represented in the prolix declamation of Agathias. (l. 5, p. 154-174,) and the dry Chronicle of Theophanes, (p. 197 198.)]

Chapter XLIII: Last Victory And Death Of Belisarius, Death Of Justinian.

Part IV.

About two years after the last victory of Belisarius, the emperor returned from a Thracian journey of health, or business, or devotion. Justinian was afflicted by a pain in his head; and his private entry countenanced the rumor of his death. Before the third hour of the day, the bakers’ shops were plundered of their bread, the houses were shut, and every citizen, with hope or terror, prepared for the impending tumult. The senators themselves, fearful and suspicious, were convened at the ninth hour; and the praefect received their commands to visit every quarter of the city, and proclaim a general illumination for the recovery of the emperor’s health. The ferment subsided; but every accident betrayed the impotence of the government, and the factious temper of the people: the guards were disposed to mutiny as often as their quarters were changed, or their pay was withheld: the frequent calamities of fires and earthquakes afforded the opportunities of disorder; the disputes of the blues and greens, of the orthodox and heretics, degenerated into bloody battles; and, in the presence of the Persian ambassador, Justinian blushed for himself and for his subjects. Capricious pardon and arbitrary punishment imbittered the irksomeness and discontent of a long reign: a conspiracy was formed in the palace; and, unless we are deceived by the names of Marcellus and Sergius, the most virtuous and the most profligate of the courtiers were associated in the same designs. They had fixed the time of the execution; their rank gave them access to the royal banquet; and their black slaves ^65 were stationed in the vestibule and porticos, to announce the death of the tyrant, and to excite a sedition in the capital. But the indiscretion of an accomplice saved the poor remnant of the days of Justinian. The conspirators were detected and seized, with daggers hidden under their garments: Marcellus died by his own hand, and Sergius was dragged from the sanctuary. ^66 Pressed by remorse, or tempted by the hopes of safety, he accused two officers of the household of Belisarius; and torture forced them to declare that they had acted according to the secret instructions of their patron. ^67 Posterity will not hastily believe that a hero who, in the vigor of life, had disdained the fairest offers of ambition and revenge, should stoop to the murder of his prince, whom he could not long expect to survive. His followers were impatient to fly; but flight must have been supported by rebellion, and he had lived enough for nature and for glory. Belisarius appeared before the council with less fear than indignation: after forty years’ service, the emperor had prejudged his guilt; and injustice was sanctified by the presence and authority of the patriarch. The life of Belisarius was graciously spared; but his fortunes were sequestered, and, from December to July, he was guarded as a prisoner in his own palace. At length his innocence was acknowledged; his freedom and honor were restored; and death, which might be hastened by resentment and grief, removed him from the world in about eight months after his deliverance. The name of Belisarius can never die but instead of the funeral, the monuments, the statues, so justly due to his memory, I only read, that his treasures, the spoil of the Goths and Vandals, were immediately confiscated by the emperor. Some decent portion was reserved, however for the use of his widow: and as Antonina had much to repent, she devoted the last remains of her life and fortune to the foundation of a convent. Such is the simple and genuine narrative of the fall of Belisarius and the ingratitude of Justinian. ^68 That he was deprived of his eyes, and reduced by envy to beg his bread, ^* “Give a penny to Belisarius the general!” is a fiction of later times, ^69 which has obtained credit, or rather favor, as a strange example of the vicissitudes of fortune. ^70
[Footnote 65: They could scarcely be real Indians; and the Aethiopians, sometimes known by that name, were never used by the ancients as guards or followers: they were the trifling, though costly objects of female and royal luxury, (Terent. Eunuch. act. i. scene ii Sueton. in August. c. 83, with a good note of Casaubon, in Caligula, c. 57.)]

[Footnote 66: The Sergius (Vandal. l. ii. c. 21, 22, Anecdot. c. 5) and Marcellus (Goth. l. iii. c. 32) are mentioned by Procopius. See Theophanes, p. 197, 201.

Note: Some words, “the acts of,” or “the crimes cf,” appear to have false from the text. The omission is in all the editions I have consulted. – M.]
[Footnote 67: Alemannus, (p. quotes an old Byzantian Ms., which has been printed in the Imperium Orientale of Banduri.)]

[Footnote 68: Of the disgrace and restoration of Belisarius, the genuine original record is preserved in the Fragment of John Malala (tom. ii. p. 234 – 243) and the exact Chronicle of Theophanes, (p. 194 – 204.) Cedrenus (Compend. p. 387, 388) and Zonaras (tom. ii. l. xiv. p. 69) seem to hesitate between the obsolete truth and the growing falsehood.]

[Footnote *: Le Beau, following Allemannus, conceives that Belisarius was confounded with John of Cappadocia, who was thus reduced to beggary, (vol. ix. p. 58, 449.) Lord Mahon has, with considerable learning, and on the authority of a yet unquoted writer of the eleventh century, endeavored to reestablish the old tradition. I cannot acknowledge that I have been convinced, and am inclined to subscribe to the theory of Le Beau. – M.]

[Footnote 69: The source of this idle fable may be derived from a miscellaneous work of the xiith century, the Chiliads of John Tzetzes, a monk, (Basil. 1546, ad calcem Lycophront. Colon. Allobrog. 1614, in Corp. Poet. Graec.) He relates the blindness and beggary of Belisarius in ten vulgar or political verses, (Chiliad iii. No. 88, 339 – 348, in Corp. Poet. Graec. tom. ii. p. 311.)

This moral or romantic tale was imported into Italy with the language and manuscripts of Greece; repeated before the end of the xvth century by Crinitus, Pontanus, and Volaterranus, attacked by Alciat, for the honor of the law; and defended by Baronius, (A.D. 561, No. 2, &c.,) for the honor of the church. Yet Tzetzes himself had read in other chronicles, that Belisarius did not lose his sight, and that he recovered his fame and fortunes.
Note: I know not where Gibbon found Tzetzes to be a monk; I suppose he considered his bad verses a proof of his monachism. Compare to Gerbelius in Kiesling’s edition of Tzetzes. – M.]

[Footnote 70: The statue in the villa Borghese at Rome, in a sitting posture, with an open hand, which is vulgarly given to Belisarius, may be ascribed with more dignity to Augustus in the act of propitiating Nemesis, (Winckelman, Hist. de l’Art, tom. iii. p. 266.) Ex nocturno visu etiam stipem, quotannis, die certo, emendicabat a populo, cavana manum asses porrigentibus praebens, (Sueton. in August. c. 91, with an excellent note of Casaubon.)
Note: Lord Mahon abandons the statue, as altogether irreconcilable with the state of the arts at this period, (p. 472.) – M.]

If the emperor could rejoice in the death of Belisarius, he enjoyed the base satisfaction only eight months, the last period of a reign of thirty- eight years, and a life of eighty-three years. It would be difficult to trace the character of a prince who is not the most conspicuous object of his own times: but the confessions of an enemy may be received as the safest evidence of his virtues. The resemblance of Justinian to the bust of Domitian, is maliciously urged; ^71 with the acknowledgment, however, of a well-proportioned figure, a ruddy complexion, and a pleasing countenance. The emperor was easy of access, patient of hearing, courteous and affable in discourse, and a master of the angry passions which rage with such destructive violence in the breast of a despot. Procopius praises his temper, to reproach him with calm and deliberate cruelty: but in the conspiracies which attacked his authority and person, a more candid judge will approve the justice, or admire the clemency, of Justinian. He excelled in the private virtues of chastity and temperance: but the impartial love of beauty would have been less mischievous than his conjugal tenderness for Theodora; and his abstemious diet was regulated, not by the prudence of a philosopher, but the superstition of a monk. His repasts were short and frugal: on solemn fasts, he contented himself with water and vegetables; and such was his strength, as well as fervor, that he frequently passed two days, and as many nights, without tasting any food. The measure of his sleep was not less rigorous: after the repose of a single hour, the body was awakened by the soul, and, to the astonishment of his chamberlain, Justinian walked or studied till the morning light. Such restless application prolonged his time for the acquisition of knowledge ^72 and the despatch of business; and he might seriously deserve the reproach of confounding, by minute and preposterous diligence, the general order of his administration. The emperor professed himself a musician and architect, a poet and philosopher, a lawyer and theologian; and if he failed in the enterprise of reconciling the Christian sects, the review of the Roman jurisprudence is a noble monument of his spirit and industry. In the government of the empire, he was less wise, or less successful: the age was unfortunate; the people was oppressed and discontented; Theodora abused her power; a succession of bad ministers disgraced his judgment; and Justinian was neither beloved in his life, nor regretted at his death. The love of fame was deeply implanted in his breast, but he condescended to the poor ambition of titles, honors, and contemporary praise; and while he labored to fix the admiration, he forfeited the esteem and affection, of the Romans.

The design of the African and Italian wars was boldly conceived and executed; and his penetration discovered the talents of Belisarius in the camp, of Narses in the palace. But the name of the emperor is eclipsed by the names of his victorious generals; and Belisarius still lives, to upbraid the envy and ingratitude of his sovereign. The partial favor of mankind applauds the genius of a conqueror, who leads and directs his subjects in the exercise of arms. The characters of Philip the Second and of Justinian are distinguished by the cold ambition which delights in war, and declines the dangers of the field. Yet a colossal statue of bronze represented the emperor on horseback, preparing to march against the Persians in the habit and armor of Achilles. In the great square before the church of St. Sophia, this monument was raised on a brass column and a stone pedestal of seven steps; and the pillar of Theodosius, which weighed seven thousand four hundred pounds of silver, was removed from the same place by the avarice and vanity of Justinian. Future princes were more just or indulgent to his memory; the elder Andronicus, in the beginning of the fourteenth century, repaired and beautified his equestrian statue: since the fall of the empire it has been melted into cannon by the victorious Turks. ^73

[Footnote 71: The rubor of Domitian is stigmatized, quaintly enough, by the pen of Tacitus, (in Vit. Agricol. c. 45;) and has been likewise noticed by the younger Pliny, (Panegyr. c. 48,) and Suetonius, (in Domitian, c. 18, and Casaubon ad locum.) Procopius (Anecdot. c. 8) foolishly believes that only one bust of Domitian had reached the vith century.]

[Footnote 72: The studies and science of Justinian are attested by the confession (Anecdot. c. 8, 13) still more than by the praises (Gothic. l. iii. c. 31, de Edific. l. i. Proem. c. 7) of Procopius. Consult the copious index of Alemannus, and read the life of Justinian by Ludewig, (p. 135 – 142.)] [Footnote 73: See in the C. P. Christiana of Ducange (l. i. c. 24, No. 1) a chain of original testimonies, from Procopius in the vith, to Gyllius in the xvith century.]

I shall conclude this chapter with the comets, the earthquakes, and the plague, which astonished or afflicted the age of Justinian.
I. In the fifth year of his reign, and in the month of September, a comet ^74 was seen during twenty days in the western quarter of the heavens, and which shot its rays into the north. Eight years afterwards, while the sun was in Capricorn, another comet appeared to follow in the Sagittary; the size was gradually increasing; the head was in the east, the tail in the west, and it remained visible above forty days. The nations, who gazed with astonishment, expected wars and calamities from their baleful influence; and these expectations were abundantly fulfilled. The astronomers dissembled their ignorance of the nature of these blazing stars, which they affected to represent as the floating meteors of the air; and few among them embraced the simple notion of Seneca and the Chaldeans, that they are only planets of a longer period and more eccentric motion. ^75 Time and science have justified the conjectures and predictions of the Roman sage: the telescope has opened new worlds to the eyes of astronomers; ^76 and, in the narrow space of history and fable, one and the same comet is already found to have revisited the earth in seven equal revolutions of five hundred and seventy-five years. The first, ^77 which ascends beyond the Christian aera one thousand seven hundred and sixty-seven years, is coeval with Ogyges, the father of Grecian antiquity. And this appearance explains the tradition which Varro has preserved, that under his reign the planet Venus changed her color, size, figure, and course; a prodigy without example either in past or succeeding ages. ^78 The second visit, in the year eleven hundred and ninety-three, is darkly implied in the fable of Electra, the seventh of the Pleiads, who have been reduced to six since the time of the Trojan war. That nymph, the wife of Dardanus, was unable to support the ruin of her country: she abandoned the dances of her sister orbs, fled from the zodiac to the north pole, and obtained, from her dishevelled locks, the name of the comet. The third period expires in the year six hundred and eighteen, a date that exactly agrees with the tremendous comet of the Sibyl, and perhaps of Pliny, which arose in the West two generations before the reign of Cyrus. The fourth apparition, forty-four years before the birth of Christ, is of all others the most splendid and important. After the death of Caesar, a long-haired star was conspicuous to Rome and to the nations, during the games which were exhibited by young Octavian in honor of Venus and his uncle. The vulgar opinion, that it conveyed to heaven the divine soul of the dictator, was cherished and consecrated by the piety of a statesman; while his secret superstition referred the comet to the glory of his own times. ^79 The fifth visit has been already ascribed to the fifth year of Justinian, which coincides with the five hundred and thirty-first of the Christian aera. And it may deserve notice, that in this, as in the preceding instance, the comet was followed, though at a longer interval, by a remarkable paleness of the sun. The sixth return, in the year eleven hundred and six, is recorded by the chronicles of Europe and China: and in the first fervor of the crusades, the Christians and the Mahometans might surmise, with equal reason, that it portended the destruction of the Infidels. The seventh phenomenon, of one thousand six hundred and eighty, was presented to the eyes of an enlightened age. ^80 The philosophy of Bayle dispelled a prejudice which Milton’s muse had so recently adorned, that the comet, “from its horrid hair shakes pestilence and war.” ^81 Its road in the heavens was observed with exquisite skill by Flamstead and Cassini: and the mathematical science of Bernoulli, Newton ^*, and Halley, investigated the laws of its revolutions. At the eighth period, in the year two thousand three hundred and fifty-five, their calculations may perhaps be verified by the astronomers of some future capital in the Siberian or American wilderness.
[Footnote 74: The first comet is mentioned by John Malala (tom. ii. p. 190, 219) and Theophanes, (p. 154;) the second by Procopius, (Persic. l. ii. 4.) Yet I strongly suspect their identity. The paleness of the sun sum Vandal. l. ii. c. 14) is applied by Theophanes (p. 158) to a different year. Note: See Lydus de Ostentis, particularly c 15, in which the author begins to show the signification of comets according to the part of the heavens in which they appear, and what fortunes they prognosticate to the Roman empire and their Persian enemies.

The chapter, however, is imperfect. (Edit. Neibuhr, p. 290.) – M.]

[Footnote 75: Seneca’s viith book of Natural Questions displays, in the theory of comets, a philosophic mind. Yet should we not too candidly confound a vague prediction, a venient tempus, &c., with the merit of real discoveries.]
[Footnote 76: Astronomers may study Newton and Halley. I draw my humble science from the article Comete, in the French Encyclopedie, by M. d’Alembert.]

[Footnote 77: Whiston, the honest, pious, visionary Whiston, had fancied for the aera of Noah’s flood (2242 years before Christ) a prior apparition of the same comet which drowned the earth with its tail.]

[Footnote 78: A Dissertation of Freret (Memoires de l’Academie des Inscriptions, tom. x. p. 357-377) affords a happy union of philosophy and erudition. The phenomenon in the time of Ogyges was preserved by Varro, (Apud Augustin. de Civitate Dei, xxi. 8,) who quotes Castor, Dion of Naples, and Adastrus of Cyzicus – nobiles mathematici. The two subsequent periods are preserved by the Greek mythologists and the spurious books of Sibylline verses.]

[Footnote 79: Pliny (Hist. Nat. ii. 23) has transcribed the original memorial of Augustus. Mairan, in his most ingenious letters to the P. Parennin, missionary in China, removes the games and the comet of September, from the year 44 to the year 43, before the Christian aera; but I am not totally subdued by the criticism of the astronomer, (Opuscules, p. 275 )] [Footnote 80: This last comet was visible in the month of December, 1680. Bayle, who began his Pensees sur la Comete in January, 1681, (Oeuvres, tom. iii.,) was forced to argue that a supernatural comet would have confirmed the ancients in their idolatry. Bernoulli (see his Eloge, in Fontenelle, tom. v. p. 99) was forced to allow that the tail though not the head, was a sign of the wrath of God.]

[Footnote 81: Paradise Lost was published in the year 1667; and the famous lines (l. ii. 708, &c.) which startled the licenser, may allude to the recent comet of 1664, observed by Cassini at Rome in the presence of Queen Christina, (Fontenelle, in his Eloge, tom. v. p. 338.) Had Charles II. betrayed any symptoms of curiosity or fear?]

[Footnote *: Compare Pingre, Histoire des Cometes. – M.]

II. The near approach of a comet may injure or destroy the globe which we inhabit; but the changes on its surface have been hitherto produced by the action of volcanoes and earthquakes. ^82 The nature of the soil may indicate the countries most exposed to these formidable concussions, since they are caused by subterraneous fires, and such fires are kindled by the union and fermentation of iron and sulphur. But their times and effects appear to lie beyond the reach of human curiosity; and the philosopher will discreetly abstain from the prediction of earthquakes, till he has counted the drops of water that silently filtrate on the inflammable mineral, and measured the caverns which increase by resistance the explosion of the imprisoned air. Without assigning the cause, history will distinguish the periods in which these calamitous events have been rare or frequent, and will observe, that this fever of the earth raged with uncommon violence during the reign of Justinian. ^83 Each year is marked by the repetition of earthquakes, of such duration, that Constantinople has been shaken above forty days; of such extent, that the shock has been communicated to the whole surface of the globe, or at least of the Roman empire. An impulsive or vibratory motion was felt: enormous chasms were opened, huge and heavy bodies were discharged into the air, the sea alternately advanced and retreated beyond its ordinary bounds, and a mountain was torn from Libanus, ^84 and cast into the waves, where it protected, as a mole, the new harbor of Botrys ^85 in Phoenicia. The stroke that agitates an ant-hill may crush the insect-myriads in the dust; yet truth must extort confession that man has industriously labored for his own destruction. The institution of great cities, which include a nation within the limits of a wall, almost realizes the wish of Caligula, that the Roman people had but one neck. Two hundred and fifty thousand persons are said to have perished in the earthquake of Antioch, whose domestic multitudes were swelled by the conflux of strangers to the festival of the Ascension. The loss of Berytus ^86 was of smaller account, but of much greater value. That city, on the coast of Phoenicia, was illustrated by the study of the civil law, which opened the surest road to wealth and dignity: the schools of Berytus were filled with the rising spirits of the age, and many a youth was lost in the earthquake, who might have lived to be the scourge or the guardian of his country. In these disasters, the architect becomes the enemy of mankind. The hut of a savage, or the tent of an Arab, may be thrown down without injury to the inhabitant; and the Peruvians had reason to deride the folly of their Spanish conquerors, who with so much cost and labor erected their own sepulchres. The rich marbles of a patrician are dashed on his own head: a whole people is buried under the ruins of public and private edifices, and the conflagration is kindled and propagated by the innumerable fires which are necessary for the subsistence and manufactures of a great city. Instead of the mutual sympathy which might comfort and assist the distressed, they dreadfully experience the vices and passions which are released from the fear of punishment: the tottering houses are pillaged by intrepid avarice; revenge embraces the moment, and selects the victim; and the earth often swallows the assassin, or the ravisher, in the consummation of their crimes. Superstition involves the present danger with invisible terrors; and if the image of death may sometimes be subservient to the virtue or repentance of individuals, an affrighted people is more forcibly moved to expect the end of the world, or to deprecate with servile homage the wrath of an avenging Deity.
[Footnote 82: For the cause of earthquakes, see Buffon, (tom. i. p. 502 – 536 Supplement a l’Hist. Naturelle, tom. v. p. 382-390, edition in 4to., Valmont de Bomare, (Dictionnaire d’Histoire Naturelle, Tremblemen de Terre, Pyrites,) Watson, (Chemical Essays, tom. i. p. 181 – 209.)]

[Footnote 83: The earthquakes that shook the Roman world in the reign of Justinian are described or mentioned by Procopius, (Goth. l. iv. c. 25 Anecdot. c. 18,) Agathias, (l. ii. p. 52, 53, 54, l. v. p. 145-152,) John Malala, (Chron. tom. ii. p. 140-146, 176, 177, 183, 193, 220, 229, 231, 233, 234,) and Theophanes, (p. 151, 183, 189, 191-196.)

Note *: Compare Daubeny on Earthquakes, and Lyell’s Geology, vol. ii. p. 161 et seq. – M]

[Footnote 84: An abrupt height, a perpendicular cape, between Aradus and Botrys (Polyb. l. v. p. 411. Pompon. Mela, l. i. c. 12, p. 87, cum Isaac. Voss. Observat. Maundrell, Journey, p. 32, 33. Pocock’s Description, vol. ii. p. 99.)]

[Footnote 85: Botrys was founded (ann. ante Christ. 935 – 903) by Ithobal, king of Tyre, (Marsham, Canon. Chron. p. 387, 388.) Its poor representative, the village of Patrone, is now destitute of a harbor.]

[Footnote 86: The university, splendor, and ruin of Berytus are celebrated by Heineccius (p. 351 – 356) as an essential part of the history of the Roman law. It was overthrown in the xxvth year of Justinian, A. D 551, July 9, (Theophanes, p. 192;) but Agathias (l. ii. p. 51, 52) suspends the earthquake till he has achieved the Italian war.]

III. Aethiopia and Egypt have been stigmatized, in every age, as the original source and seminary of the plague. ^87 In a damp, hot, stagnating air, this African fever is generated from the putrefaction of animal substances, and especially from the swarms of locusts, not less destructive to mankind in their death than in their lives. The fatal disease which depopulated the earth in the time of Justinian and his successors, ^88 first appeared in the neighborhood of Pelusium, between the Serbonian bog and the eastern channel of the Nile. From thence, tracing as it were a double path, it spread to the East, over Syria, Persia, and the Indies, and penetrated to the West, along the coast of Africa, and over the continent of Europe. In the spring of the second year, Constantinople, during three or four months, was visited by the pestilence; and Procopius, who observed its progress and symptoms with the eyes of a physician, ^89 has emulated the skill and diligence of Thucydides in the description of the plague of Athens. ^90 The infection was sometimes announced by the visions of a distempered fancy, and the victim despaired as soon as he had heard the menace and felt the stroke of an invisible spectre. But the greater number, in their beds, in the streets, in their usual occupation, were surprised by a slight fever; so slight, indeed, that neither the pulse nor the color of the patient gave any signs of the approaching danger. The same, the next, or the succeeding day, it was declared by the swelling of the glands, particularly those of the groin, of the armpits, and under the ear; and when these buboes or tumors were opened, they were found to contain a coal, or black substance, of the size of a lentil. If they came to a just swelling and suppuration, the patient was saved by this kind and natural discharge of the morbid humor. But if they continued hard and dry, a mortification quickly ensued, and the fifth day was commonly the term of his life. The fever was often accompanied with lethargy or delirium; the bodies of the sick were covered with black pustules or carbuncles, the symptoms of immediate death; and in the constitutions too feeble to produce an irruption, the vomiting of blood was followed by a mortification of the bowels. To pregnant women the plague was generally mortal: yet one infant was drawn alive from his dead mother, and three mothers survived the loss of their infected foetus. Youth was the most perilous season; and the female sex was less susceptible than the male: but every rank and profession was attacked with indiscriminate rage, and many of those who escaped were deprived of the use of their speech, without being secure from a return of the disorder. ^91 The physicians of Constantinople were zealous and skilful; but their art was baffled by the various symptoms and pertinacious vehemence of the disease: the same remedies were productive of contrary effects, and the event capriciously disappointed their prognostics of death or recovery. The order of funerals, and the right of sepulchres, were confounded: those who were left without friends or servants, lay unburied in the streets, or in their desolate houses; and a magistrate was authorized to collect the promiscuous heaps of dead bodies, to transport them by land or water, and to inter them in deep pits beyond the precincts of the city. Their own danger, and the prospect of public distress, awakened some remorse in the minds of the most vicious of mankind: the confidence of health again revived their passions and habits; but philosophy must disdain the observation of Procopius, that the lives of such men were guarded by the peculiar favor of fortune or Providence. He forgot, or perhaps he secretly recollected, that the plague had touched the person of Justinian himself; but the abstemious diet of the emperor may suggest, as in the case of Socrates, a more rational and honorable cause for his recovery. ^92 During his sickness, the public consternation was expressed in the habits of the citizens; and their idleness and despondence occasioned a general scarcity in the capital of the East.
[Footnote 87: I have read with pleasure Mead’s short, but elegant, treatise concerning Pestilential Disorders, the viiith edition, London, 1722.]
[Footnote 88: The great plague which raged in 542 and the following years (Pagi, Critica, tom. ii. p. 518) must be traced in Procopius, (Persic. l. ii. c. 22, 23,) Agathias, (l. v. p. 153, 154,) Evagrius, (l. iv. c. 29,) Paul Diaconus, (l. ii. c. iv. p. 776, 777,) Gregory of Tours, (tom. ii. l. iv. c. 5, p 205,) who styles it Lues Inguinaria, and the Chronicles of Victor Tunnunensis, (p. 9, in Thesaur. Temporum,) of Marcellinus, (p. 54,) and of Theophanes, (p. 153.)]

[Footnote 89: Dr. Friend (Hist. Medicin. in Opp. p. 416 – 420, Lond. 1733) is satisfied that Procopius must have studied physic, from his knowledge and use of the technical words. Yet many words that are now scientific were common and popular in the Greek idiom.]

[Footnote 90: See Thucydides, l. ii. c. 47 – 54, p. 127 – 133, edit. Duker, and the poetical description of the same plague by Lucretius. (l. vi. 1136 – 1284.) I was indebted to Dr. Hunter for an elaborate commentary on this part of Thucydides, a quarto of 600 pages, (Venet. 1603, apud Juntas,) which was pronounced in St. Mark’s Library by Fabius Paullinus Utinensis, a physician and philosopher.]

[Footnote 91: Thucydides (c. 51) affirms, that the infection could only be once taken; but Evagrius, who had family experience of the plague, observes, that some persons, who had escaped the first, sunk under the second attack; and this repetition is confirmed by Fabius Paullinus, (p. 588.) I observe, that on this head physicians are divided; and the nature and operation of the disease may not always be similar.]

[Footnote 92: It was thus that Socrates had been saved by his temperance, in the plague of Athens, (Aul. Gellius, Noct. Attic. ii. l.) Dr. Mead accounts for the peculiar salubrity of religious houses, by the two advantages of seclusion and abstinence, (p. 18, 19.)]

Contagion is the inseparable symptom of the plague; which, by mutual respiration, is transfused from the infected persons to the lungs and stomach of those who approach them. While philosophers believe and tremble, it is singular, that the existence of a real danger should have been denied by a people most prone to vain and imaginary terrors. ^93 Yet the fellow-citizens of Procopius were satisfied, by some short and partial experience, that the infection could not be gained by the closest conversation: ^94 and this persuasion might support the assiduity of friends or physicians in the care of the sick, whom inhuman prudence would have condemned to solitude and despair. But the fatal security, like the predestination of the Turks, must have aided the progress of the contagion; and those salutary precautions to which Europe is indebted for her safety, were unknown to the government of Justinian. No restraints were imposed on the free and frequent intercourse of the Roman provinces: from Persia to France, the nations were mingled and infected by wars and emigrations; and the pestilential odor which lurks for years in a bale of cotton was imported, by the abuse of trade, into the most distant regions. The mode of its propagation is explained by the remark of Procopius himself, that it always spread from the sea-coast to the inland country: the most sequestered islands and mountains were successively visited; the places which had escaped the fury of its first passage were alone exposed to the contagion of the ensuing year. The winds might diffuse that subtile venom; but unless the atmosphere be previously disposed for its reception, the plague would soon expire in the cold or temperate climates of the earth. Such was the universal corruption of the air, that the pestilence which burst forth in the fifteenth year of Justinian was not checked or alleviated by any difference of the seasons. In time, its first malignity was abated and dispersed; the disease alternately languished and revived; but it was not till the end of a calamitous period of fifty-two years, that mankind recovered their health, or the air resumed its pure and salubrious quality.

No facts have been preserved to sustain an account, or even a conjecture, of the numbers that perished in this extraordinary mortality. I only find, that during three months, five, and at length ten, thousand persons died each day at Constantinople; that many cities of the East were left vacant, and that in several districts of Italy the harvest and the vintage withered on the ground. The triple scourge of war, pestilence, and famine, afflicted the subjects of Justinian; and his reign is disgraced by the visible decrease of the human species, which has never been repaired in some of the fairest countries of the globe. ^95

[Footnote 93: Mead proves that the plague is contagious from Thucydides, Lacretius, Aristotle, Galen, and common experience, (p. 10 – 20;) and he refutes (Preface, p. 2 – 13) the contrary opinion of the French physicians who visited Marseilles in the year 1720. Yet these were the recent and enlightened spectators of a plague which, in a few months, swept away 50,000 inhabitants (sur le Peste de Marseille, Paris, 1786) of a city that, in the present hour of prosperity and trade contains no more then 90,000 souls, (Necker, sur les Finances, tom. i. p. 231.)]

[Footnote 94: The strong assertions of Procopius are overthrown by the subsequent experience of Evagrius.]

[Footnote 95: After some figures of rhetoric, the sands of the sea, &c., Procopius (Anecdot. c. 18) attempts a more definite account; that it had been exterminated under the reign of the Imperial demon. The expression is obscure in grammar and arithmetic and a literal interpretation would produce several millions of millions Alemannus (p. 80) and Cousin (tom. iii. p. 178) translate this passage, “two hundred millions:” but I am ignorant of their motives. The remaining myriad of myriads, would furnish one hundred millions, a number not wholly inadmissible.]

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part I.

Idea Of The Roman Jurisprudence. – The Laws Of The Kings – The Twelve Of The Decemvirs. – The Laws Of The People. – The Decrees Of The Senate. – The Edicts Of The Magistrates And Emperors – Authority Of The Civilians. – Code, Pandects, Novels, And Institutes Of Justinian: – I. Rights Of Persons. – II. Rights Of Things. – III. Private Injuries And Actions. – IV. Crimes And Punishments.

Note: In the notes to this important chapter, which is received as the text-book on Civil Law in some of the foreign universities, I have consulted,
I. the newly-discovered Institutes of Gaius, (Gaii Institutiones, ed. Goeschen, Berlin, 1824,) with some other fragments of the Roman law, (Codicis Theodosiani Fragmenta inedita, ab Amadeo Peyron. Turin, 1824.) II. The History of the Roman Law, by Professor Hugo, in the French translation of M. Jourdan. Paris, 1825.

III. Savigny, Geschichte des Romischen Rechts im Mittelalter, 6 bande, Heidelberg, 1815.

IV. Walther, Romische Rechts-Geschichte, Bonn. 1834. But I am particularly indebted to an edition of the French translation of this chapter, with additional notes, by one of the most learned civilians of Europe, Professor Warnkonig, published at Liege, 1821. I have inserted almost the whole of these notes, which are distinguished by the letter W. – M. The vain titles of the victories of Justinian are crumbled into dust; but the name of the legislator is inscribed on a fair and everlasting monument. Under his reign, and by his care, the civil jurisprudence was digested in the immortal works of the Code, the Pandects, and the Institutes: ^1 the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe, ^2, and the laws of Justinian still command the respect or obedience of independent nations. Wise or fortunate is the prince who connects his own reputation with the honor or interest of a perpetual order of men. The defence of their founder is the first cause, which in every age has exercised the zeal and industry of the civilians. They piously commemorate his virtues; dissemble or deny his failings; and fiercely chastise the guilt or folly of the rebels, who presume to sully the majesty of the purple. The idolatry of love has provoked, as it usually happens, the rancor of opposition; the character of Justinian has been exposed to the blind vehemence of flattery and invective; and the injustice of a sect (the Anti-Tribonians,) has refused all praise and merit to the prince, his ministers, and his laws. ^3 Attached to no party, interested only for the truth and candor of history, and directed by the most temperate and skilful guides, ^4 I enter with just diffidence on the subject of civil law, which has exhausted so many learned lives, and clothed the walls of such spacious libraries. In a single, if possible in a short, chapter, I shall trace the Roman jurisprudence from Romulus to Justinian, ^5 appreciate the labors of that emperor, and pause to contemplate the principles of a science so important to the peace and happiness of society. The laws of a nation form the most instructive portion of its history; and although I have devoted myself to write the annals of a declining monarchy, I shall embrace the occasion to breathe the pure and invigorating air of the republic.
[Footnote 1: The civilians of the darker ages have established an absurd and incomprehensible mode of quotation, which is supported by authority and custom. In their references to the Code, the Pandects, and the Institutes, they mention the number, not of the book, but only of the law; and content themselves with reciting the first words of the title to which it belongs; and of these titles there are more than a thousand. Ludewig (Vit. Justiniani, p. 268) wishes to shake off this pendantic yoke; and I have dared to adopt the simple and rational method of numbering the book, the title, and the law.
Note: The example of Gibbor has been followed by M Hugo and other civilians. – M]

[Footnote 2: Germany, Bohemia, Hungary, Poland, and Scotland, have received them as common law or reason; in France, Italy, &c., they possess a direct or indirect influence; and they were respected in England, from Stephen to Edward I. our national Justinian, (Duck. de Usu et Auctoritate Juris Civilis, l. ii. c. 1, 8 – 15. Heineccius, Hist. Juris Germanici, c. 3, 4, No. 55 – 124, and the legal historians of each country.)

Note: Although the restoration of the Roman law, introduced by the revival of this study in Italy, is one of the most important branches of history, it had been treated but imperfectly when Gibbon wrote his work. That of Arthur Duck is but an insignificant performance. But the researches of the learned have thrown much light upon the matter. The Sarti, the Tiraboschi, the Fantuzzi, the Savioli, had made some very interesting inquiries; but it was reserved for M. de Savigny, in a work entitled “The History of the Roman Law during the Middle Ages,” to cast the strongest right on this part of history. He demonstrates incontestably the preservation of the Roman law from Justinian to the time of the Glossators, who by their indefatigable zeal, propagated the study of the Roman jurisprudence in all the countries of Europe. It is much to be desired that the author should continue this interesting work, and that the learned should engage in the inquiry in what manner the Roman law introduced itself into their respective countries, and the authority which it progressively acquired. For Belgium, there exists, on this subject, (proposed by the Academy of Brussels in 1781,) a Collection of Memoirs, printed at Brussels in 4to., 1783, among which should be distinguished those of M. de Berg. M. Berriat Saint Prix has given us hopes of the speedy appearance of a work in which he will discuss this question, especially in relation to France. M. Spangenberg, in his Introduction to the Study of the Corpus Juris Civilis Hanover, 1817, 1 vol. 8vo. p. 86, 116, gives us a general sketch of the history of the Roman law in different parts of Europe. We cannot avoid mentioning an elementary work by M. Hugo, in which he treats of the History of the Roman Law from Justinian to the present Time, 2d edit. Berlin 1818 W.]

[Footnote 3: Francis Hottoman, a learned and acute lawyer of the xvith century, wished to mortify Cujacius, and to please the Chancellor de l’Hopital. His Anti-Tribonianus (which I have never been able to procure) was published in French in 1609; and his sect was propagated in Germany, (Heineccius, Op. tom. iii. sylloge iii. p. 171 – 183.)

Note: Though there have always been many detractors of the Roman law, no sect of Anti-Tribonians has ever existed under that name, as Gibbon seems to suppose. – W.]

[Footnote 4: At the head of these guides I shall respectfully place the learned and perspicuous Heineccius, a German professor, who died at Halle in the year 1741, (see his Eloge in the Nouvelle Bibliotheque Germanique, tom. ii. p. 51 – 64.) His ample works have been collected in eight volumes in 4to. Geneva, 1743 – 1748. The treatises which I have separately used are, 1. Historia Juris Romani et Germanici, Lugd. Batav. 1740, in 8 vo.
2. Syntagma Antiquitatum Romanam Jurisprudentiam illustrantium, 2 vols. in 8 vo. Traject. ad Rhenum.

3. Elementa Juris Civilis secundum Ordinem Institutionum, Lugd. Bat. 1751, in 8 vo.

4. Elementa J. C. secundum Ordinem Pandectarum Traject. 1772, in 8vo. 2 vols.

Note: Our author, who was not a lawyer, was necessarily obliged to content himself with following the opinions of those writers who were then of the greatest authority; but as Heineccius, notwithstanding his high reputation for the study of the Roman law, knew nothing of the subject on which he treated, but what he had learned from the compilations of various authors, it happened that, in following the sometimes rash opinions of these guides, Gibbon has fallen into many errors, which we shall endeavor in succession to correct.

The work of Bach on the History of the Roman Jurisprudence, with which Gibbon was not acquainted, is far superior to that of Heineccius and since that time we have new obligations to the modern historic civilians, whose indefatigable researches have greatly enlarged the sphere of our knowledge in this important branch of history. We want a pen like that of Gibbon to give to the more accurate notions which we have acquired since his time, the brilliancy, the vigor, and the animation which Gibbon has bestowed on the opinions of Heineccius and his contemporaries. – W]

[Footnote 5: Our original text is a fragment de Origine Juris (Pandect. l. i. tit. ii.) of Pomponius, a Roman lawyer, who lived under the Antonines, (Heinecc. tom. iii. syl. iii. p. 66 – 126.) It has been abridged, and probably corrupted, by Tribonian, and since restored by Bynkershoek (Opp. tom. i. p. 279 – 304.)]

The primitive government of Rome ^6 was composed, with some political skill, of an elective king, a council of nobles, and a general assembly of the people. War and religion were administered by the supreme magistrate; and he alone proposed the laws, which were debated in the senate, and finally ratified or rejected by a majority of votes in the thirty curiae or parishes of the city. Romulus, Numa, and Servius Tullius, are celebrated as the most ancient legislators; and each of them claims his peculiar part in the threefold division of jurisprudence. ^7 The laws of marriage, the education of children, and the authority of parents, which may seem to draw their origin from nature itself, are ascribed to the untutored wisdom of Romulus. The law of nations and of religious worship, which Numa introduced, was derived from his nocturnal converse with the nymph Egeria. The civil law is attributed to the experience of Servius: he balanced the rights and fortunes of the seven classes of citizens; and guarded, by fifty new regulations, the observance of contracts and the punishment of crimes. The state, which he had inclined towards a democracy, was changed by the last Tarquin into a lawless despotism; and when the kingly office was abolished, the patricians engrossed the benefits of freedom. The royal laws became odious or obsolete; the mysterious deposit was silently preserved by the priests and nobles; and at the end of sixty years, the citizens of Rome still complained that they were ruled by the arbitrary sentence of the magistrates. Yet the positive institutions of the kings had blended themselves with the public and private manners of the city, some fragments of that venerable jurisprudence ^8 were compiled by the diligence of antiquarians, ^9 and above twenty texts still speak the rudeness of the Pelasgic idiom of the Latins. ^10

[Footnote 6: The constitutional history of the kings of Rome may be studied in the first book of Livy, and more copiously in Dionysius Halicarnassensis, (l. li. p. 80 – 96, 119 – 130, l. iv. p. 198 – 220,) who sometimes betrays the character of a rhetorician and a Greek.

Note: M. Warnkonig refers to the work of Beaufort, on the Uncertainty of the Five First Ages of the Roman History, with which Gibbon was probably acquainted, to Niebuhr, and to the less known volume of Wachsmuth, “Aeltere Geschichte des Rom. Staats.” To these I would add A. W. Schlegel’s Review of Niebuhr, and my friend Dr. Arnold’s recently published volume, of which the chapter on the Law of the XII. Tables appears to me one of the most valuable, if not the most valuable, chapter. – M.]

[Footnote 7: This threefold division of the law was applied to the three Roman kings by Justus Lipsius, (Opp. tom. iv. p. 279;) is adopted by Gravina, (Origines Juris Civilis, p. 28, edit. Lips. 1737:) and is reluctantly admitted by Mascou, his German editor.

Note: Whoever is acquainted with the real notions of the Romans on the jus naturale, gentium et civile, cannot but disapprove of this explanation which has no relation to them, and might be taken for a pleasantry. It is certainly unnecessary to increase the confusion which already prevails among modern writers on the true sense of these ideas. Hugo. – W] [Footnote 8: The most ancient Code or Digest was styled Jus Papirianum, from the first compiler, Papirius, who flourished somewhat before or after the Regifugium, (Pandect. l. i. tit. ii.) The best judicial critics, even Bynkershoek (tom. i. p. 284, 285) and Heineccius, (Hist. J. C. R. l. i. c. 16, 17, and Opp. tom. iii. sylloge iv. p. 1 – 8,) give credit to this tale of Pomponius, without sufficiently adverting to the value and rarity of such a monument of the third century, of the illiterate city. I much suspect that the Caius Papirius, the Pontifex Maximus, who revived the laws of Numa (Dionys. Hal. l. iii. p. 171) left only an oral tradition; and that the Jus Papirianum of Granius Flaccus (Pandect. l. L. tit. xvi. leg. 144) was not a commentary, but an original work, compiled in the time of Caesar, (Censorin. de Die Natali, l. iii. p. 13, Duker de Latinitate J. C. p. 154.) Note: Niebuhr considers the Jus Papirianum, adduced by Verrius Fiaccus, to be of undoubted authenticity. Rom. Geschichte, l. 257. – M. Compare this with the work of M. Hugo. – W.]

[Footnote 9: A pompous, though feeble attempt to restore the original, is made in the Histoire de la Jurisprudence Romaine of Terasson, p. 22 – 72, Paris, 1750, in folio; a work of more promise than performance.]

[Footnote 10: In the year 1444, seven or eight tables of brass were dug up between Cortona and Gubio. A part of these (for the rest is Etruscan) represents the primitive state of the Pelasgic letters and language, which are ascribed by Herodotus to that district of Italy, (l. i. c. 56, 57, 58;) though this difficult passage may be explained of a Crestona in Thrace, (Notes de Larcher, tom. i. p. 256 – 261.) The savage dialect of the Eugubine tables ^! has exercised, and may still elude, the divination of criticism; but the root is undoubtedly Latin, of the same age and character as the Saliare Carmen, which, in the time of Horace, none could understand. The Roman idiom, by an infusion of Doric and Aeolic Greek, was gradually ripened into the style of the xii. tables, of the Duillian column, of Ennius, of Terence, and of Cicero, (Gruter. Inscript. tom. i. p. cxlii. Scipion Maffei, Istoria Diplomatica, p. 241 – 258. Bibliotheque Italique, tom. iii. p. 30 – 41, 174 – 205. tom. xiv. p. 1 – 52.)

Note: The Eugubine Tables have exercised the ingenuity of the Italian and German critics; it seems admitted (O. Muller, die Etrusker, ii. 313) that they are Tuscan. See the works of Lanzi, Passeri, Dempster, and O. Muller. – M]
I shall not repeat the well-known story of the Decemvirs, ^11 who sullied by their actions the honor of inscribing on brass, or wood, or ivory, the Twelve Tables of the Roman laws. ^12 They were dictated by the rigid and jealous spirit of an aristocracy, which had yielded with reluctance to the just demands of the people. But the substance of the Twelve Tables was adapted to the state of the city; and the Romans had emerged from Barbarism, since they were capable of studying and embracing the institutions of their more enlightened neighbors. ^* A wise Ephesian was driven by envy from his native country: before he could reach the shores of Latium, he had observed the various forms of human nature and civil society: he imparted his knowledge to the legislators of Rome, and a statue was erected in the forum to the perpetual memory of Hermodorus. ^13 The names and divisions of the copper money, the sole coin of the infant state, were of Dorian origin: ^14 the harvests of Campania and Sicily relieved the wants of a people whose agriculture was often interrupted by war and faction; and since the trade was established, ^15 the deputies who sailed from the Tyber might return from the same harbors with a more precious cargo of political wisdom. The colonies of Great Greece had transported and improved the arts of their mother country. Cumae and Rhegium, Crotona and Tarentum, Agrigentum and Syracuse, were in the rank of the most flourishing cities. The disciples of Pythagoras applied philosophy to the use of government; the unwritten laws of Charondas accepted the aid of poetry and music, ^16 and Zaleucus framed the republic of the Locrians, which stood without alteration above two hundred years. ^17 From a similar motive of national pride, both Livy and Dionysius are willing to believe, that the deputies of Rome visited Athens under the wise and splendid administration of Pericles; and the laws of Solon were transfused into the twelve tables. If such an embassy had indeed been received from the Barbarians of Hesperia, the Roman name would have been familiar to the Greeks before the reign of Alexander; ^18 and the faintest evidence would have been explored and celebrated by the curiosity of succeeding times. But the Athenian monuments are silent; nor will it seem credible that the patricians should undertake a long and perilous navigation to copy the purest model of democracy. In the comparison of the tables of Solon with those of the Decemvirs, some casual resemblance may be found; some rules which nature and reason have revealed to every society; some proofs of a common descent from Egypt or Phoenicia. ^19 But in all the great lines of public and private jurisprudence, the legislators of Rome and Athens appear to be strangers or adverse at each other.

[Footnote 11: Compare Livy (l. iii. c. 31 – 59) with Dionysius Halicarnassensis, (l. x. p. 644 – xi. p. 691.) How concise and animated is the Roman – how prolix and lifeless the Greek! Yet he has admirably judged the masters, and defined the rules, of historical composition.]
[Footnote 12: From the historians, Heineccius (Hist. J. R. l. i. No. 26) maintains that the twelve tables were of brass – aereas; in the text of Pomponius we read eboreas; for which Scaliger has substituted roboreas, (Bynkershoek, p. 286.) Wood, brass, and ivory, might be successively employed.
Note: Compare Niebuhr, vol. ii. p. 349, &c. – M.]

[Footnote *: Compare Niebuhr, 355, note 720. – M. It is a most important question whether the twelve tables in fact include laws imported from Greece. The negative opinion maintained by our author, is now almost universally adopted, particularly by Mm. Niebuhr, Hugo, and others. See my Institutiones Juris Romani privati Leodii, 1819, p. 311, 312. – W. Dr. Arnold, p. 255, seems to incline to the opposite opinion. Compare some just and sensible observations in the Appendix to Mr. Travers Twiss’s Epitome of Niebuhr, p. 347, Oxford, 1836. – M.]

[Footnote 13: His exile is mentioned by Cicero, (Tusculan. Quaestion. v. 36; his statue by Pliny, (Hist. Nat. xxxiv. 11.) The letter, dream, and prophecy of Heraclitus, are alike spurious, (Epistolae Graec. Divers. p. 337. Note: Compare Niebuhr, ii. 209. – M. See the Mem de l’Academ. des Inscript. xxii. p. 48. It would be difficult to disprove, that a certain Hermodorus had some share in framing the Laws of the Twelve Tables. Pomponius even says that this Hermodorus was the author of the last two tables. Pliny calls him the Interpreter of the Decemvirs, which may lead us to suppose that he labored with them in drawing up that law. But it is astonishing that in his Dissertation, (De Hermodoro vero XII. Tabularum Auctore, Annales Academiae Groninganae anni 1817, 1818,) M. Gratama has ventured to advance two propositions entirely devoid of proof: “Decem priores tabulas ab ipsis Romanis non esse profectas, tota confirma Decemviratus Historia,” et “Hermodorum legum decemviralium ceri nominis auctorem esse, qui eas composuerit suis ordinibus, disposuerit, suaque fecerit auctoritate, ut a decemviris reciperentur.” This truly was an age in which the Roman Patricians would allow their laws to be dictated by a foreign Exile! Mr. Gratama does not attempt to prove the authenticity of the supposititious letter of Heraclitus. He contents himself with expressing his astonishment that M. Bonamy (as well as Gibbon) will be receive it as genuine. – W.]

[Footnote 14: This intricate subject of the Sicilian and Roman money, is ably discussed by Dr. Bentley, (Dissertation on the Epistles of Phalaris, p. 427 – 479,) whose powers in this controversy were called forth by honor and resentment.]

[Footnote 15: The Romans, or their allies, sailed as far as the fair promontory of Africa, (Polyb. l. iii. p. 177, edit. Casaubon, in folio.) Their voyages to Cumae, &c., are noticed by Livy and Dionysius.]
[Footnote 16: This circumstance would alone prove the antiquity of Charondas, the legislator of Rhegium and Catana, who, by a strange error of Diodorus Siculus (tom. i. l. xii. p. 485 – 492) is celebrated long afterwards as the author of the policy of Thurium.]

[Footnote 17: Zaleucus, whose existence has been rashly attacked, had the merit and glory of converting a band of outlaws (the Locrians) into the most virtuous and orderly of the Greek republics. (See two Memoirs of the Baron de St. Croix, sur la Legislation de la Grande Grece Mem. de l’Academie, tom. xlii. p. 276 – 333.) But the laws of Zaleucus and Charondas, which imposed on Diodorus and Stobaeus, are the spurious composition of a Pythagorean sophist, whose fraud has been detected by the critical sagacity of Bentley, p. 335 – 377.]

[Footnote 18: I seize the opportunity of tracing the progress of this national intercourse 1. Herodotus and Thucydides (A. U. C. 300 – 350) appear ignorant of the name and existence of Rome, (Joseph. contra Appion tom. ii. l. i. c. 12, p. 444, edit. Havercamp.) 2. Theopompus (A. U. C. 400, Plin. iii. 9) mentions the invasion of the Gauls, which is noticed in looser terms by Heraclides Ponticus, (Plutarch in Camillo, p. 292, edit. H. Stephan.) 3. The real or fabulous embassy of the Romans to Alexander (A. U. C. 430) is attested by Clitarchus, (Plin. iii. 9,) by Aristus and Asclepiades, (Arrian. l. vii. p. 294, 295,) and by Memnon of Heraclea, (apud Photium, cod. ccxxiv. p. 725,) though tacitly denied by Livy. 4. Theophrastus (A. U. C. 440) primus externorum aliqua de Romanis diligentius scripsit, (Plin. iii. 9.) 5. Lycophron (A. U. C. 480 – 500) scattered the first seed of a Trojan colony and the fable of the Aeneid, (Cassandra, 1226 – 1280.)

A bold prediction before the end of the first Punic war!

Note: Compare Niebuhr throughout. Niebuhr has written a dissertation (Kleine Schriften, i. p. 438,) arguing from this prediction, and on the other conclusive grounds, that the Lycophron, the author of the Cassandra, is not the Alexandrian poet. He had been anticipated in this sagacious criticism, as he afterwards discovered, by a writer of no less distinction than Charles James Fox. – Letters to Wakefield. And likewise by the author of the extraordinary translation of this poem, that most promising scholar, Lord Royston. See the Remains of Lord Royston, by the Rev. Henry Pepys, London, 1838.]

[Footnote 19: The tenth table, de modo sepulturae, was borrowed from Solon, (Cicero de Legibus, ii. 23 – 26:) the furtem per lancem et licium conceptum, is derived by Heineccius from the manners of Athens, (Antiquitat. Rom. tom. ii. p. 167 – 175.) The right of killing a nocturnal thief was declared by Moses, Solon, and the Decemvirs, (Exodus xxii. 3. Demosthenes contra Timocratem, tom. i. p. 736, edit. Reiske. Macrob. Saturnalia, l. i. c. 4. Collatio Legum Mosaicarum et Romanatum, tit, vii. No. i. p. 218, edit. Cannegieter.)

Note: Are not the same points of similarity discovered in the legislation of all actions in the infancy of their civilization? – W.]

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part II.

Whatever might be the origin or the merit of the twelve tables, ^20 they obtained among the Romans that blind and partial reverence which the lawyers of every country delight to bestow on their municipal institutions. The study is recommended by Cicero ^21 as equally pleasant and instructive. “They amuse the mind by the remembrance of old words and the portrait of ancient manners; they inculcate the soundest principles of government and morals; and I am not afraid to affirm, that the brief composition of the Decemvirs surpasses in genuine value the libraries of Grecian philosophy. How admirable,” says Tully, with honest or affected prejudice, “is the wisdom of our ancestors! We alone are the masters of civil prudence, and our superiority is the more conspicuous, if we deign to cast our eyes on the rude and almost ridiculous jurisprudence of Draco, of Solon, and of Lycurgus.” The twelve tables were committed to the memory of the young and the meditation of the old; they were transcribed and illustrated with learned diligence; they had escaped the flames of the Gauls, they subsisted in the age of Justinian, and their subsequent loss has been imperfectly restored by the labors of modern critics. ^22 But although these venerable monuments were considered as the rule of right and the fountain of justice, ^23 they were overwhelmed by the weight and variety of new laws, which, at the end of five centuries, became a grievance more intolerable than the vices of the city. ^24 Three thousand brass plates, the acts of the senate of the people, were deposited in the Capitol: ^25 and some of the acts, as the Julian law against extortion, surpassed the number of a hundred chapters. ^26 The Decemvirs had neglected to import the sanction of Zaleucus, which so long maintained the integrity of his republic. A Locrian, who proposed any new law, stood forth in the assembly of the people with a cord round his neck, and if the law was rejected, the innovator was instantly strangled.

[Footnote 20: It is the praise of Diodorus, tom. i. l. xii. p. 494,) which may be fairly translated by the eleganti atque absoluta brevitate verborum of Aulus Gellius, (Noct. Attic. xxi. 1.)]

[Footnote 21: Listen to Cicero (de Legibus, ii. 23) and his representative Crassus, (de Oratore, i. 43, 44.)]

[Footnote 22: See Heineccius, (Hist. J. R. No. 29 – 33.) I have followed the restoration of the xii. tables by Gravina (Origines J. C. p. 280 – 307) and Terrasson, (Hist. de la Jurisprudence Romaine, p. 94 – 205.)
Note: The wish expressed by Warnkonig, that the text and the conjectural emendations on the fragments of the xii. tables should be submitted to rigid criticism, has been fulfilled by Dirksen, Uebersicht der bisherigen Versuche Leipzig Kritik und Herstellung des Textes der Zwolf-Tafel-Fragmente, Leipzug, 1824. – M.]

[Footnote 23: Finis aequi juris, (Tacit. Annal. iii. 27.) Fons omnis publici et privati juris, (T. Liv. iii. 34.)

Note: From the context of the phrase in Tacitus, “Nam secutae leges etsi alquando in maleficos ex delicto; saepius tamen dissensione ordinum * * * latae sunt,” it is clear that Gibbon has rendered this sentence incorrectly. Hugo, Hist. p. 62. – M.]

[Footnote 24: De principiis juris, et quibus modis ad hanc multitudinem infinitam ac varietatem legum perventum sit altius disseram, (Tacit. Annal. iii. 25.) This deep disquisition fills only two pages, but they are the pages of Tacitus. With equal sense, but with less energy, Livy (iii. 34) had complained, in hoc immenso aliarum super alias acervatarum legum cumulo, &c.] [Footnote 25: Suetonius in Vespasiano, c. 8.]

[Footnote 26: Cicero ad Familiares, viii. 8.]

The Decemvirs had been named, and their tables were approved, by an assembly of the centuries, in which riches preponderated against numbers. To the first class of Romans, the proprietors of one hundred thousand pounds of copper, ^27 ninety-eight votes were assigned, and only ninety-five were left for the six inferior classes, distributed according to their substance by the artful policy of Servius. But the tribunes soon established a more specious and popular maxim, that every citizen has an equal right to enact the laws which he is bound to obey. Instead of the centuries, they convened the tribes; and the patricians, after an impotent struggle, submitted to the decrees of an assembly, in which their votes were confounded with those of the meanest plebeians. Yet as long as the tribes successively passed over narrow bridges ^28 and gave their voices aloud, the conduct of each citizen was exposed to the eyes and ears of his friends and countrymen. The insolvent debtor consulted the wishes of his creditor; the client would have blushed to oppose the views of his patron; the general was followed by his veterans, and the aspect of a grave magistrate was a living lesson to the multitude. A new method of secret ballot abolished the influence of fear and shame, of honor and interest, and the abuse of freedom accelerated the progress of anarchy and despotism. ^29 The Romans had aspired to be equal; they were levelled by the equality of servitude; and the dictates of Augustus were patiently ratified by the formal consent of the tribes or centuries. Once, and once only, he experienced a sincere and strenuous opposition. His subjects had resigned all political liberty; they defended the freedom of domestic life. A law which enforced the obligation, and strengthened the bonds of marriage, was clamorously rejected; Propertius, in the arms of Delia, applauded the victory of licentious love; and the project of reform was suspended till a new and more tractable generation had arisen in the world. ^30 Such an example was not necessary to instruct a prudent usurper of the mischief of popular assemblies; and their abolition, which Augustus had silently prepared, was accomplished without resistance, and almost without notice, on the accession of his successor. ^31 Sixty thousand plebeian legislators, whom numbers made formidable, and poverty secure, were supplanted by six hundred senators, who held their honors, their fortunes, and their lives, by the clemency of the 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 freedom, 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 perverted by fear or interest. ^32

[Footnote 27: Dionysius, with Arbuthnot, and most of the moderns, (except Eisenschmidt de Ponderibus, &c., p. 137 – 140,) represent the 100,000 asses by 10,000 Attic drachmae, or somewhat more than 300 pounds sterling. But their calculation can apply only to the latter times, when the as was diminished to 1-24th of its ancient weight: nor can I believe that in the first ages, however destitute of the precious metals, a single ounce of silver could have been exchanged for seventy pounds of copper or brass. A more simple and rational method is to value the copper itself according to the present rate, and, after comparing the mint and the market price, the Roman and avoirdupois weight, the primitive as or Roman pound of copper may be appreciated at one English shilling, and the 100,000 asses of the first class amounted to 5000 pounds sterling. It will appear from the same reckoning, that an ox was sold at Rome for five pounds, a sheep for ten shillings, and a quarter of wheat for one pound ten shillings, (Festus, p. 330, edit. Dacier. Plin. Hist. Natur. xviii. 4:) nor do I see any reason to reject these consequences, which moderate our ideas of the poverty of the first Romans.

Note: Compare Niebuhr, English translation, vol. i. p. 448, &c. – M.]
[Footnote 28: Consult the common writers on the Roman Comitia, especially Sigonius and Beaufort. Spanheim (de Praestantia et Usu Numismatum, tom. ii. dissert. x. p. 192, 193) shows, on a curious medal, the Cista, Pontes, Septa, Diribitor, &c.]

[Footnote 29: Cicero (de Legibus, iii. 16, 17, 18) debates this constitutional question, and assigns to his brother Quintus the most unpopular side.]
[Footnote 30: Prae tumultu recusantium perferre non potuit, (Sueton. in August. c. 34.) See Propertius, l. ii. eleg. 6. Heineccius, in a separate history, has exhausted the whole subject of the Julian and Papian Poppaean laws, (Opp. tom. vii. P. i. p. 1 – 479.)]

[Footnote 31: Tacit. Annal. i. 15. Lipsius, Excursus E. in Tacitum.
Note: This error of Gibbon has been long detected. The senate, under Tiberius did indeed elect the magistrates, who before that emperor were elected in the comitia. But we find laws enacted by the people during his reign, and that of Claudius. For example; the Julia-Norbana, Vellea, and Claudia de tutela foeminarum. Compare the Hist. du Droit Romain, by M. Hugo, vol. ii. p. 55, 57. The comitia ceased imperceptibly as the republic gradually expired. – W.]

[Footnote 32: Non ambigitur senatum jus facere posse, is the decision of Ulpian, (l. xvi. ad Edict. in Pandect. l. i. tit. iii. leg. 9.) Pomponius taxes the comitia of the people as a turba hominum, (Pandect. l. i. tit. ii. leg 9.)

Note: The author adopts the opinion, that under the emperors alone the senate had a share in the legislative power. They had nevertheless participated in it under the Republic, since senatus-consulta relating to civil rights have been preserved, which are much earlier than the reigns of Augustus or Tiberius. It is true that, under the emperors, the senate exercised this right more frequently, and that the assemblies of the people had become much more rare, though in law they were still permitted, in the time of Ulpian. (See the fragments of Ulpian.) Bach has clearly demonstrated that the senate had the same power in the time of the Republic. It is natural that the senatus-consulta should have been more frequent under the emperors, because they employed those means of flattering the pride of the senators, by granting them the right of deliberating on all affairs which did not intrench on the Imperial power. Compare the discussions of M. Hugo, vol. i. p. 284, et seq. – W.]

The silence or ambiguity of the laws was supplied by the occasional edicts ^! of those magistrates who were invested with the honors of the state. ^33 This ancient prerogative of the Roman kings was transferred, in their respective offices, to the consuls and dictators, the censors and praetors; and a similar right was assumed by the tribunes of the people, the ediles, 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 rigor 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 defeat the plainest meaning of the Decemvirs, and where the end was salutary, the means were frequently absurd. The secret or probable wish of the dead was suffered to prevail over the order of succession and the forms of testaments; and the claimant, who was excluded from the character of heir, accepted with equal pleasure from an indulgent praetor the possession of the goods of his late kinsman or benefactor. In the redress of private wrongs, compensations and fines were substituted to the obsolete rigor of the Twelve Tables; time and space were annihilated by fanciful suppositions; and the plea of youth, or fraud, or violence, annulled the obligation, or excused the performance, of an inconvenient contract. A jurisdiction thus vague and arbitrary was exposed to the most dangerous abuse: the substance, as well as the form, of justice were often sacrificed to the prejudices of virtue, the bias of laudable affection, and the grosser seductions of interest or resentment. But the errors or vices of each praetor expired with his annual office; such maxims alone as had been approved by reason and practice were copied by succeeding judges; the rule of proceeding was defined by the solution of new cases; and the temptations of injustice were removed by the Cornelian law, which compelled the praetor of the year to adhere to the spirit and letter of his first proclamation. ^34 It was reserved for the curiosity and learning of Adrian, to accomplish the design which had been conceived by the genius of Caesar; and the praetorship of Salvius Julian, an eminent lawyer, was immortalized by the composition of the Perpetual Edict. This well-digested code was ratified by the emperor and the senate; the long divorce of law and equity was at length reconciled; and, instead of the Twelve Tables, the perpetual edict was fixed as the invariable standard of civil jurisprudence. ^35

[Footnote !: There is a curious passage from Aurelius, a writer on Law, on the Praetorian Praefect, quoted in Lydus de Magistratibus, p. 32, edit. Hase. The Praetorian praefect was to the emperor what the master of the horse was to the dictator under the Republic. He was the delegate, therefore, of the full Imperial authority; and no appeal could be made or exception taken against his edicts. I had not observed this passage, when the third volume, where it would have been more appropriately placed, passed through the press. – M]
[Footnote 33: The jus honorarium of the praetors and other magistrates is strictly defined in the Latin text to the Institutes, (l. i. tit. ii. No. 7,) and more loosely explained in the Greek paraphrase of Theophilus, (p. 33 – 38, edit. Reitz,) who drops the important word honorarium.

Note: The author here follows the opinion of Heineccius, who, according to the idea of his master Thomasius, was unwilling to suppose that magistrates exercising a judicial could share in the legislative power. For this reason he represents the edicts of the praetors as absurd. (See his work, Historia Juris Romani, 69, 74.) But Heineccius had altogether a false notion of this important institution of the Romans, to which we owe in a great degree the perfection of their jurisprudence. Heineccius, therefore, in his own days had many opponents of his system, among others the celebrated Ritter, professor at Wittemberg, who contested it in notes appended to the work of Heineccius, and retained in all subsequent editions of that book. After Ritter, the learned Bach undertook to vindicate the edicts of the praetors in his Historia Jurisprud. Rom. edit. 6, p. 218, 224. But it remained for a civilian of our own days to throw light on the spirit and true character of this institution. M. Hugo has completely demonstrated that the praetorian edicts furnished the salutary means of perpetually harmonizing the legislation with the spirit of the times. The praetors were the true organs of public opinion. It was not according to their caprice that they framed their regulations, but according to the manners and to the opinions of the great civil lawyers of their day. We know from Cicero himself, that it was esteemed a great honor among the Romans to publish an edict, well conceived and well drawn. The most distinguished lawyers of Rome were invited by the praetor to assist in framing this annual law, which, according to its principle, was only a declaration which the praetor made to the public, to announce the manner in which he would judge, and to guard against every charge of partiality. Those who had reason to fear his opinions might delay their cause till the following year.
The praetor was responsible for all the faults which he committed. The tribunes could lodge an accusation against the praetor who issued a partial edict. He was bound strictly to follow and to observe the regulations published by him at the commencement of his year of office, according to the Cornelian law, by which these edicts were called perpetual, and he could make no change in a regulation once published. The praetor was obliged to submit to his own edict, and to judge his own affairs according to its provisions. These magistrates had no power of departing from the fundamental laws, or the laws of the Twelve Tables. The people held them in such consideration, that they rarely enacted laws contrary to their provisions; but as some provisions were found inefficient, others opposed to the manners of the people, and to the spirit of subsequent ages, the praetors, still maintaining respect for the laws, endeavored to bring them into accordance with the necessities of the existing time, by such fictions as best suited the nature of the case. In what legislation do we not find these fictions, which even yet exist, absurd and ridiculous as they are, among the ancient laws of modern nations? These always variable edicts at length comprehended the whole of the Roman legislature, and became the subject of the commentaries of the most celebrated lawyers. They must therefore be considered as the basis of all the Roman jurisprudence comprehended in the Digest of Justinian.

It is in this sense that M. Schrader has written on this important institution, proposing it for imitation as far as may be consistent with our manners, and agreeable to our political institutions, in order to avoid immature legislation becoming a permanent evil. See the History of the Roman Law by M. Hugo, vol. i. p. 296, &c., vol. ii. p. 30, et seq., 78. et seq., and the note in my elementary book on the Industries, p. 313. With regard to the works best suited to give information on the framing and the form of these edicts, see Haubold, Institutiones Literariae, tom. i. p. 321, 368.
All that Heineccius says about the usurpation of the right of making these edicts by the praetors is false, and contrary to all historical testimony. A multitude of authorities proves that the magistrates were under an obligation to publish these edicts. – W.

With the utmost deference for these excellent civilians, I cannot but consider this confusion of the judicial and legislative authority as a very perilous constitutional precedent. It might answer among a people so singularly trained as the Romans were by habit and national character in reverence for legal institutions, so as to be an aristocracy, if not a people, of legislators; but in most nations the investiture of a magistrate in such authority, leaving to his sole judgment the lawyers he might consult, and the view of public opinion which he might take, would be a very insufficient guaranty for right legislation. – M.]

[Footnote *: Compare throughout the brief but admirable sketch of the progress and growth of the Roman jurisprudence, the necessary operation of the jusgentium, when Rome became the sovereign of nations, upon the jus civile of the citizens of Rome, in the first chapter of Savigny. Geschichte des Romischen Rechts im Mittelalter. – M.]

[Footnote 34: Dion Cassius (tom. i. l. xxxvi. p. 100) fixes the perpetual edicts in the year of Rome, 686. Their institution, however, is ascribed to the year 585 in the Acta Diurna, which have been published from the papers of Ludovicus Vives. Their authenticity is supported or allowed by Pighius, (Annal. Rom. tom. ii. p. 377, 378,) Graevius, (ad Sueton. p. 778,) Dodwell, (Praelection. Cambden, p. 665,) and Heineccius: but a single word, Scutum Cimbricum, detects the forgery, (Moyle’s Works, vol. i. p. 303.)]
[Footnote 35: The history of edicts is composed, and the text of the perpetual edict is restored, by the master-hand of Heineccius, (Opp. tom. vii. P. ii. p. 1 – 564;) in whose researches I might safely acquiesce. In the Academy of Inscriptions, M. Bouchaud has given a series of memoirs to this interesting subject of law and literature.

Note: This restoration was only the commencement of a work found among the papers of Heineccius, and published after his death. – G.]
Note: Gibbon has here fallen into an error, with Heineccius, and almost the whole literary world, concerning the real meaning of what is called the perpetual edict of Hadrian. Since the Cornelian law, the edicts were perpetual, but only in this sense, that the praetor could not change them during the year of his magistracy. And although it appears that under Hadrian, the civilian Julianus made, or assisted in making, a complete collection of the edicts, (which certainly had been done likewise before Hadrian, for example, by Ofilius, qui diligenter edictum composuit,) we have no sufficient proof to admit the common opinion, that the Praetorian edict was declared perpetually unalterable by Hadrian. The writers on law subsequent to Hadrian (and among the rest Pomponius, in his Summary of the Roman Jurisprudence) speak of the edict as it existed in the time of Cicero. They would not certainly have passed over in silence so remarkable a change in the most important source of the civil law. M. Hugo has conclusively shown that the various passages in authors, like Eutropius, are not sufficient to establish the opinion introduced by Heineccius. Compare Hugo, vol. ii. p. 78. A new proof of this is found in the Institutes of Gaius, who, in the first books of his work, expresses himself in the same manner, without mentioning any change made by Hadrian. Nevertheless, if it had taken place, he must have noticed it, as he does l. i. 8, the responsa prudentum, on the occasion of a rescript of Hadrian. There is no lacuna in the text. Why then should Gaius maintain silence concerning an innovation so much more important than that of which he speaks? After all, this question becomes of slight interest, since, in fact, we find no change in the perpetual edict inserted in the Digest, from the time of Hadrian to the end of that epoch, except that made by Julian, (compare Hugo, l. c.) The latter lawyers appear to follow, in their commentaries, the same texts as their predecessors. It is natural to suppose, that, after the labors of so many men distinguished in jurisprudence, the framing of the edict must have attained such perfection that it would have been difficult to have made any innovation. We nowhere find that the jurists of the Pandects disputed concerning the words, or the drawing up of the edict.
What difference would, in fact, result from this with regard to our codes, and our modern legislation? Compare the learned Dissertation of M. Biener, De Salvii Juliani meritis in Edictum Praetorium recte aestimandis. Lipsae, 1809, 4to. – W.]

From Augustus to Trajan, the modest Caesars were content to promulgate their edicts in the various characters of a Roman magistrate; ^* and, in the decrees of the senate, the epistles and orations of the prince were respectfully inserted. Adrian ^36 appears to have been the first who assumed, without disguise, the plenitude of legislative power. And this innovation, so agreeable to his active mind, was countenanced by the patience of the times, and his long absence from the seat of government. The same policy was embraced by succeeding monarchs, and, according to the harsh metaphor of Tertullian, “the gloomy and intricate forest of ancient laws was cleared away by the axe of royal mandates and constitutions.” ^37 During four centuries, from Adrian to Justinian the public and private jurisprudence was moulded by the will of the sovereign; and few institutions, either human or divine, were permitted to stand on their former basis. The origin of Imperial legislation was concealed by the darkness of ages and the terrors of armed despotism; and a double tiction was propagated by the servility, or perhaps the ignorance, of the civilians, who basked in the sunshine of the Roman and Byzantine courts. 1. To the prayer of the ancient Caesars, the people or the senate had sometimes granted a personal exemption from the obligation and penalty of particular statutes; and each indulgence was an act of jurisdiction exercised by the republic over the first of her citizens. His humble privilege was at length transformed into the prerogative of a tyrant; and the Latin expression of “released from the laws” ^38 was supposed to exalt the emperor above all human restraints, and to leave his conscience and reason as the sacred measure of his conduct. 2. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elective magistrate. But it was not before the ideas, and even the language, of the Romans had been corrupted, that a 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 vigor and effect of law, since the Roman people, by the royal law, have transferred to their prince the full extent of their own power and sovereignty.” ^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 Theophilus in the court of Justinian, “can reach the calm and sublime 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 considerations. 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; ^43 and the purest materials of the Code and Pandects are inscribed with the names of Caracalla and his ministers. ^44 The tyrant of Rome was sometimes the benefactor of the provinces. A dagger terminated the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate. ^45 Yet in the rescripts, ^46 replies to the consultations of the magistrates, the wisest of princes might be deceived by a partial exposition of the case. And this abuse, which placed their hasty decisions on the same level with mature and deliberate acts of legislation, was ineffectually condemned by the sense and example of Trajan. The rescripts of the emperor, his grants and decrees, his edicts and pragmatic sanctions, were subscribed in purple ink, ^47 and transmitted to the provinces as general or special laws, which the magistrates were bound to execute, and the people to obey. But as their number continually multiplied, the rule of obedience became each day more doubtful and obscure, till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes. ^* The two first, of which some fragments have escaped, were framed by two private lawyers, to preserve the constitutions of the Pagan emperors from Adrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained an equal authority in the tribunals; and any act which was not included in the sacred deposit might be disregarded by the judge as epurious or obsolete. ^48

[Footnote *: It is an important question in what manner the emperors were invested with this legislative power. The newly discovered Gaius distinctly states that it was in virtue of a law – Nec unquam dubitatum est, quin id legis vicem obtineat, cum ipse imperator per legem imperium accipiat. But it is still uncertain whether this was a general law, passed on the transition of the government from a republican to a monarchical form, or a law passed on the accession of each emperor. Compare Hugo, Hist. du Droit Romain, (French translation,) vol. ii. p. 8. – M.]

[Footnote 36: His laws are the first in the code. See Dodwell, (Praelect. Cambden, p. 319 – 340,) who wanders from the subject in confused reading and feeble paradox.

Note: This is again an error which Gibbon shares with Heineccius, and the generality of authors. It arises from having mistaken the insignificant edict of Hadrian, inserted in the Code of Justinian, (lib. vi, tit. xxiii. c. 11,) for the first constitutio principis, without attending to the fact, that the Pandects contain so many constitutions of the emperors, from Julius Caesar, (see l. i. Digest 29, l) M. Hugo justly observes, that the acta of Sylla, approved by the senate, were the same thing with the constitutions of those who after him usurped the sovereign power. Moreover, we find that Pliny, and other ancient authors, report a multitude of rescripts of the emperors from the time of Augustus. See Hugo, Hist. du Droit Romain, vol. ii. p. 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. l. 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, (p. 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