With notes by the Rev. H. H. Milman

1782 (Written), 1845 (Revised)

History Of The Decline And Fall Of The Roman Empire

State Of The Barbaric World. - Establishment Of The Lombards On the Danube. - Tribes And Inroads Of The Sclavonians. - Origin, Empire, And Embassies Of The Turks. - The Flight Of The Avars. - Chosroes I, Or Nushirvan, King Of Persia. - His Prosperous Reign And Wars With The Romans. - The Colchian Or Lazic War. - The Aethiopians.

Our estimate of personal merit, is relative to the common faculties of mankind. The aspiring efforts of genius, or virtue, either in active or speculative life, are measured, not so much by their real elevation, as by the height to which they ascend above the level of their age and country; and the same stature, which in a people of giants would pass unnoticed, must appear conspicuous in a race of pygmies. Leonidas, and his three hundred companions, devoted their lives at Thermopylae; but the education of the infant, the boy, and the man, had prepared, and almost insured, this memorable sacrifice; and each Spartan would approve, rather than admire, an act of duty, of which himself and eight thousand of his fellow-citizens were equally capable. ^1 The great Pompey might inscribe on his trophies, that he had defeated in battle two millions of enemies, and reduced fifteen hundred cities from the Lake Maeotis to the Red Sea: ^2 but the fortune of Rome flew before his eagles; the nations were oppressed by their own fears, and the invincible legions which he commanded, had been formed by the habits of conquest and the discipline of ages. In this view, the character of Belisarius may be deservedly placed above the heroes of the ancient republics. His imperfections flowed from the contagion of the times; his virtues were his own, the free gift of nature or reflection; he raised himself without a master or a rival; and so inadequate were the arms committed to his hand, that his sole advantage was derived from the pride and presumption of his adversaries. Under his command, the subjects of Justinian often deserved to be called Romans: but the unwarlike appellation of Greeks was imposed as a term of reproach by the haughty Goths; who affected to blush, that they must dispute the kingdom of Italy with a nation of tragedians pantomimes, and pirates. ^3 The climate of Asia has indeed been found less congenial than that of Europe to military spirit: those populous countries were enervated by luxury, despotism, and superstition; and the monks were more expensive and more numerous than the soldiers of the East. The regular force of the empire had once amounted to six hundred and forty- five thousand men: it was reduced, in the time of Justinian, to one hundred and fifty thousand; and this number, large as it may seem, was thinly scattered over the sea and land; in Spain and Italy, in Africa and Egypt, on the banks of the Danube, the coast of the Euxine, and the frontiers of Persia. The citizen was exhausted, yet the soldier was unpaid; his poverty was mischievously soothed by the privilege of rapine and indolence; and the tardy payments were detained and intercepted by the fraud of those agents who usurp, without courage or danger, the emoluments of war. Public and private distress recruited the armies of the state; but in the field, and still more in the presence of the enemy, their numbers were always defective. The want of national spirit was supplied by the precarious faith and disorderly service of Barbarian mercenaries. Even military honor, which has often survived the loss of virtue and freedom, was almost totally extinct. The generals, who were multiplied beyond the example of former times, labored only to prevent the success, or to sully the reputation of their colleagues; and they had been taught by experience, that if merit sometimes provoked the jealousy, error, or even guilt, would obtain the indulgence, of a gracious emperor. ^4 In such an age, the triumphs of Belisarius, and afterwards of Narses, shine with incomparable lustre; but they are encompassed with the darkest shades of disgrace and calamity. While the lieutenant of Justinian subdued the kingdoms of the Goths and Vandals, the emperor, ^5 timid, though ambitious, balanced the forces of the Barbarians, fomented their divisions by flattery and falsehood, and invited by his patience and liberality the repetition of injuries. ^6 The keys of Carthage, Rome, and Ravenna, were presented to their conqueror, while Antioch was destroyed by the Persians, and Justinian trembled for the safety of Constantinople.

[Footnote 1: It will be a pleasure, not a task, to read Herodotus, (l. vii. c. 104, 134, p. 550, 615.) The conversation of Xerxes and Demaratus at Thermopylae is one of the most interesting and moral scenes in history. It was the torture of the royal Spartan to behold, with anguish and remorse, the virtue of his country.]

[Footnote 2: See this proud inscription in Pliny, (Hist. Natur. vii. 27.) Few men have more exquisitely tasted of glory and disgrace; nor could Juvenal (Satir. x.) produce a more striking example of the vicissitudes of fortune, and the vanity of human wishes.]

[Footnote 3: This last epithet of Procopius is too nobly translated by pirates; naval thieves is the proper word; strippers of garments, either for injury or insult, (Demosthenes contra Conon Reiske, Orator, Graec. tom. ii. p. 1264.)]

[Footnote 4: See the third and fourth books of the Gothic War: the writer of the Anecdotes cannot aggravate these abuses.]

[Footnote 5: Agathias, l. v. p. 157, 158. He confines this weakness of the emperor and the empire to the old age of Justinian; but alas! he was never young.]

[Footnote 6: This mischievous policy, which Procopius (Anecdot. c. 19) imputes to the emperor, is revealed in his epistle to a Scythian prince, who was capable of understanding it.]

Even the Gothic victories of Belisarius were prejudicial to the state, since they abolished the important barrier of the Upper Danube, which had been so faithfully guarded by Theodoric and his daughter. For the defence of Italy, the Goths evacuated Pannonia and Noricum, which they left in a peaceful and flourishing condition: the sovereignty was claimed by the emperor of the Romans; the actual possession was abandoned to the boldness of the first invader. On the opposite banks of the Danube, the plains of Upper Hungary and the Transylvanian hills were possessed, since the death of Attila, by the tribes of the Gepidae, who respected the Gothic arms, and despised, not indeed the gold of the Romans, but the secret motive of their annual subsidies. The vacant fortifications of the river were instantly occupied by these Barbarians; their standards were planted on the walls of Sirmium and Belgrade; and the ironical tone of their apology aggravated this insult on the majesty of the empire. “So extensive, O Caesar, are your dominions, so numerous are your cities, that you are continually seeking for nations to whom, either in peace or in war, you may relinquish these useless possessions. The Gepidae are your brave and faithful allies; and if they have anticipated your gifts, they have shown a just confidence in your bounty.” Their presumption was excused by the mode of revenge which Justinian embraced. Instead of asserting the rights of a sovereign for the protection of his subjects, the emperor invited a strange people to invade and possess the Roman provinces between the Danube and the Alps and the ambition of the Gepidae was checked by the rising power and fame of the Lombards. ^7 This corrupt appellation has been diffused in the thirteenth century by the merchants and bankers, the Italian posterity of these savage warriors: but the original name of Langobards is expressive only of the peculiar length and fashion of their beards. I am not disposed either to question or to justify their Scandinavian origin; ^8 nor to pursue the migrations of the Lombards through unknown regions and marvellous adventures. About the time of Augustus and Trajan, a ray of historic light breaks on the darkness of their antiquities, and they are discovered, for the first time, between the Elbe and the Oder. Fierce, beyond the example of the Germans, they delighted to propagate the tremendous belief, that their heads were formed like the heads of dogs, and that they drank the blood of their enemies, whom they vanquished in battle. The smallness of their numbers was recruited by the adoption of their bravest slaves; and alone, amidst their powerful neighbors, they defended by arms their high-spirited independence. In the tempests of the north, which overwhelmed so many names and nations, this little bark of the Lombards still floated on the surface: they gradually descended towards the south and the Danube, and, at the end of four hundred years, they again appear with their ancient valor and renown. Their manners were not less ferocious. The assassination of a royal guest was executed in the presence, and by the command, of the king's daughter, who had been provoked by some words of insult, and disappointed by his diminutive stature; and a tribute, the price of blood, was imposed on the Lombards, by his brother the king of the Heruli. Adversity revived a sense of moderation and justice, and the insolence of conquest was chastised by the signal defeat and irreparable dispersion of the Heruli, who were seated in the southern provinces of Poland. ^9 The victories of the Lombards recommended them to the friendship of the emperors; and at the solicitations of Justinian, they passed the Danube, to reduce, according to their treaty, the cities of Noricum and the fortresses of Pannonia. But the spirit of rapine soon tempted them beyond these ample limits; they wandered along the coast of the Hadriatic as far as Dyrrachium, and presumed, with familiar rudeness to enter the towns and houses of their Roman allies, and to seize the captives who had escaped from their audacious hands. These acts of hostility, the sallies, as it might be pretended, of some loose adventurers, were disowned by the nation, and excused by the emperor; but the arms of the Lombards were more seriously engaged by a contest of thirty years, which was terminated only by the extirpation of the Gepidae. The hostile nations often pleaded their cause before the throne of Constantinople; and the crafty Justinian, to whom the Barbarians were almost equally odious, pronounced a partial and ambiguous sentence, and dexterously protracted the war by slow and ineffectual succors. Their strength was formidable, since the Lombards, who sent into the field several myriads of soldiers, still claimed, as the weaker side, the protection of the Romans. Their spirit was intrepid; yet such is the uncertainty of courage, that the two armies were suddenly struck with a panic; they fled from each other, and the rival kings remained with their guards in the midst of an empty plain. A short truce was obtained; but their mutual resentment again kindled; and the remembrance of their shame rendered the next encounter more desperate and bloody Forty thousand of the Barbarians perished in the decisive battle, which broke the power of the Gepidae, transferred the fears and wishes of Justinian, and first displayed the character of Alboin, the youthful prince of the Lombards, and the future conqueror of Italy. ^10

[Footnote 7: Gens Germana feritate ferocior, says Velleius Paterculus of the Lombards, (ii. 106.) Langobardos paucitas nobilitat. Plurimis ac valentissimis nationibus cincti non per obsequium, sed praeliis et perilitando, tuti sunt, (Tacit. de Moribus German. c. 40.) See likewise Strabo, (l. viii. p. 446.) The best geographers place them beyond the Elbe, in the bishopric of Magdeburgh and the middle march of Brandenburgh; and their situation will agree with the patriotic remark of the count de Hertzberg, that most of the Barbarian conquerors issued from the same countries which still produce the armies of Prussia.

Note: See Malte Brun, vol. i. p 402. - M]

[Footnote 8: The Scandinavian origin of the Goths and Lombards, as stated by Paul Warnefrid, surnamed the deacon, is attacked by Cluverius, (Germania, Antiq. l. iii. c. 26, p. 102, &c.,) a native of Prussia, and defended by Grotius, (Prolegom. ad Hist. Goth. p. 28, &c.,) the Swedish Ambassador.] [Footnote 9: Two facts in the narrative of Paul Diaconus (l. i. c. 20) are expressive of national manners: 1. Dum ad tabulam luderet - while he played at draughts. 2. Camporum viridantia lina. The cultivation of flax supposes property, commerce, agriculture, and manufactures]

[Footnote 10: I have used, without undertaking to reconcile, the facts in Procopius, (Goth. l. ii. c. 14, l. iii. c. 33, 34, l. iv. c. 18, 25,) Paul Diaconus, (de Gestis Langobard, l. i. c. 1 - 23, in Muratori, Script. Rerum Italicarum, tom. i. p. 405 - 419,) and Jornandes, (de Success. Regnorum, p. 242.) The patient reader may draw some light from Mascou (Hist. of the Germans, and Annotat. xxiii.) and De Buat, (Hist. des Peuples, &c., tom. ix. x. xi.)]

The wild people who dwelt or wandered in the plains of Russia, Lithuania, and Poland, might be reduced, in the age of Justinian, under the two great families of the Bulgarians ^11 and the Sclavonians. According to the Greek writers, the former, who touched the Euxine and the Lake Maeotis, derived from the Huns their name or descent; and it is needless to renew the simple and well-known picture of Tartar manners. They were bold and dexterous archers, who drank the milk, and feasted on the flesh, of their fleet and indefatigable horses; whose flocks and herds followed, or rather guided, the motions of their roving camps; to whose inroads no country was remote or impervious, and who were practised in flight, though incapable of fear. The nation was divided into two powerful and hostile tribes, who pursued each other with fraternal hatred. They eagerly disputed the friendship, or rather the gifts, of the emperor; and the distinctions which nature had fixed between the faithful dog and the rapacious wolf was applied by an ambassador who received only verbal instructions from the mouth of his illiterate prince. ^12 The Bulgarians, of whatsoever species, were equally attracted by Roman wealth: they assumed a vague dominion over the Sclavonian name, and their rapid marches could only be stopped by the Baltic Sea, or the extreme cold and poverty of the north. But the same race of Sclavonians appears to have maintained, in every age, the possession of the same countries. Their numerous tribes, however distant or adverse, used one common language, (it was harsh and irregular,) and where known by the resemblance of their form, which deviated from the swarthy Tartar, and approached without attaining the lofty stature and fair complexion of the German. Four thousand six hundred villages ^13 were scattered over the provinces of Russia and Poland, and their huts were hastily built of rough timber, in a country deficient both in stone and iron. Erected, or rather concealed, in the depth of forests, on the banks of rivers, or the edges of morasses, we may not perhaps, without flattery, compare them to the architecture of the beaver; which they resembled in a double issue, to the land and water, for the escape of the savage inhabitant, an animal less cleanly, less diligent, and less social, than that marvellous quadruped. The fertility of the soil, rather than the labor of the natives, supplied the rustic plenty of the Sclavonians. Their sheep and horned cattle were large and numerous, and the fields which they sowed with millet or panic ^14 afforded, in place of bread, a coarse and less nutritive food. The incessant rapine of their neighbors compelled them to bury this treasure in the earth; but on the appearance of a stranger, it was freely imparted by a people, whose unfavorable character is qualified by the epithets of chaste, patient, and hospitable. As their supreme god, they adored an invisible master of the thunder. The rivers and the nymphs obtained their subordinate honors, and the popular worship was expressed in vows and sacrifice. The Sclavonians disdained to obey a despot, a prince, or even a magistrate; but their experience was too narrow, their passions too headstrong, to compose a system of equal law or general defence. Some voluntary respect was yielded to age and valor; but each tribe or village existed as a separate republic, and all must be persuaded where none could be compelled. They fought on foot, almost naked, and except an unwieldy shield, without any defensive armor; their weapons of offence were a bow, a quiver of small poisoned arrows, and a long rope, which they dexterously threw from a distance, and entangled their enemy in a running noose. In the field, the Sclavonian infantry was dangerous by their speed, agility, and hardiness: they swam, they dived, they remained under water, drawing their breath through a hollow cane; and a river or lake was often the scene of their unsuspected ambuscade. But these were the achievements of spies or stragglers; the military art was unknown to the Sclavonians; their name was obscure, and their conquests were inglorious. ^15 [Footnote 11: I adopt the appellation of Bulgarians from Ennodius, (in Panegyr. Theodorici, Opp. Sirmond, tom. i. p. 1598, 1599,) Jornandes, (de Rebus Geticis, c. 5, p. 194, et de Regn. Successione, p. 242,) Theophanes, (p. 185,) and the Chronicles of Cassiodorus and Marcellinus. The name of Huns is too vague; the tribes of the Cutturgurians and Utturgurians are too minute and too harsh.

Note: The Bulgarians are first mentioned among the writers of the West in the Panegyric on Theodoric by Ennodius, Bishop of Pavia. Though they perhaps took part in the conquests of the Huns, they did not advance to the Danube till after the dismemberment of that monarchy on the death of Attila. But the Bulgarians are mentioned much earlier by the Armenian writers. Above 600 years before Christ, a tribe of Bulgarians, driven from their native possessions beyond the Caspian, occupied a part of Armenia, north of the Araxes. They were of the Finnish race; part of the nation, in the fifth century, moved westward, and reached the modern Bulgaria; part remained along the Volga, which is called Etel, Etil, or Athil, in all the Tartar languages, but from the Bulgarians, the Volga. The power of the eastern Bulgarians was broken by Batou, son of Tchingiz Khan; that of the western will appear in the course of the history. From St. Martin, vol. vii p. 141. Malte-Brun, on the contrary, conceives that the Bulgarians took their name from the river. According to the Byzantine historians they were a branch of the Ougres, (Thunmann, Hist. of the People to the East of Europe,) but they have more resemblance to the Turks. Their first country, Great Bulgaria, was washed by the Volga. Some remains of their capital are still shown near Kasan. They afterwards dwelt in Kuban, and finally on the Danube, where they subdued (about the year 500) the Slavo-Servians established on the Lower Danube. Conquered in their turn by the Avars, they freed themselves from that yoke in 635; their empire then comprised the Cutturgurians, the remains of the Huns established on the Palus Maeotis. The Danubian Bulgaria, a dismemberment of this vast state, was long formidable to the Byzantine empire. Malte-Brun, Prec. de Geog Univ. vol. i. p. 419. - M.

According to Shafarik, the Danubian Bulgaria was peopled by a Slavo Bulgarian race. The Slavish population was conquered by the Bulgarian (of Uralian and Finnish descent,) and incorporated with them. This mingled race are the Bulgarians bordering on the Byzantine empire. Shafarik, ii 152, et seq. - M. 1845]

[Footnote 12: Procopius, (Goth. l. iv. c. 19.) His verbal message (he owns him self an illiterate Barbarian) is delivered as an epistle. The style is savage, figurative, and original.]

[Footnote 13: This sum is the result of a particular list, in a curious Ms. fragment of the year 550, found in the library of Milan. The obscure geography of the times provokes and exercises the patience of the count de Buat, (tom. xi. p. 69 - 189.) The French minister often loses himself in a wilderness which requires a Saxon and Polish guide.]

[Footnote 14: Panicum, milium. See Columella, l. ii. c. 9, p. 430, edit. Gesner. Plin. Hist. Natur. xviii. 24, 25. The Samaritans made a pap of millet, mingled with mare's milk or blood. In the wealth of modern husbandry, our millet feeds poultry, and not heroes. See the dictionaries of Bomare and Miller.]

[Footnote 15: For the name and nation, the situation and manners, of the Sclavonians, see the original evidence of the vith century, in Procopius, (Goth. l. ii. c. 26, l. iii. c. 14,) and the emperor Mauritius or Maurice (Stratagemat. l. ii. c. 5, apud Mascon Annotat. xxxi.) The stratagems of Maurice have been printed only, as I understand, at the end of Scheffer's edition of Arrian's Tactics, at Upsal, 1664, (Fabric. Bibliot. Graec. l. iv. c. 8, tom. iii. p. 278,) a scarce, and hitherto, to me, an inaccessible book.] I have marked the faint and general outline of the Sclavonians and Bulgarians, without attempting to define their intermediate boundaries, which were not accurately known or respected by the Barbarians themselves. Their importance was measured by their vicinity to the empire; and the level country of Moldavia and Wallachia was occupied by the Antes, ^16 a Sclavonian tribe, which swelled the titles of Justinian with an epithet of conquest. ^17 Against the Antes he erected the fortifications of the Lower Danube; and labored to secure the alliance of a people seated in the direct channel of northern inundation, an interval of two hundred miles between the mountains of Transylvania and the Euxine Sea. But the Antes wanted power and inclination to stem the fury of the torrent; and the light-armed Sclavonians, from a hundred tribes, pursued with almost equal speed the footsteps of the Bulgarian horse. The payment of one piece of gold for each soldier procured a safe and easy retreat through the country of the Gepidae, who commanded the passage of the Upper Danube. ^18 The hopes or fears of the Barbarians; their intense union or discord; the accident of a frozen or shallow stream; the prospect of harvest or vintage; the prosperity or distress of the Romans; were the causes which produced the uniform repetition of annual visits, ^19 tedious in the narrative, and destructive in the event. The same year, and possibly the same month, in which Ravenna surrendered, was marked by an invasion of the Huns or Bulgarians, so dreadful, that it almost effaced the memory of their past inroads. They spread from the suburbs of Constantinople to the Ionian Gulf, destroyed thirty-two cities or castles, erased Potidaea, which Athens had built, and Philip had besieged, and repassed the Danube, dragging at their horses' heels one hundred and twenty thousand of the subjects of Justinian. In a subsequent inroad they pierced the wall of the Thracian Chersonesus, extirpated the habitations and the inhabitants, boldly traversed the Hellespont, and returned to their companions, laden with the spoils of Asia. Another party, which seemed a multitude in the eyes of the Romans, penetrated, without opposition, from the Straits of Thermopylae to the Isthmus of Corinth; and the last ruin of Greece has appeared an object too minute for the attention of history. The works which the emperor raised for the protection, but at the expense of his subjects, served only to disclose the weakness of some neglected part; and the walls, which by flattery had been deemed impregnable, were either deserted by the garrison, or scaled by the Barbarians. Three thousand Sclavonians, who insolently divided themselves into two bands, discovered the weakness and misery of a triumphant reign. They passed the Danube and the Hebrus, vanquished the Roman generals who dared to oppose their progress, and plundered, with impunity, the cities of Illyricum and Thrace, each of which had arms and numbers to overwhelm their contemptible assailants. Whatever praise the boldness of the Sclavonians may deserve, it is sullied by the wanton and deliberate cruelty which they are accused of exercising on their prisoners. Without distinction of rank, or age, or sex, the captives were impaled or flayed alive, or suspended between four posts, and beaten with clubs till they expired, or enclosed in some spacious building, and left to perish in the flames with the spoil and cattle which might impede the march of these savage victors. ^20 Perhaps a more impartial narrative would reduce the number, and qualify the nature, of these horrid acts; and they might sometimes be excused by the cruel laws of retaliation. In the siege of Topirus, ^21 whose obstinate defence had enraged the Sclavonians, they massacred fifteen thousand males; but they spared the women and children; the most valuable captives were always reserved for labor or ransom; the servitude was not rigorous, and the terms of their deliverance were speedy and moderate. But the subject, or the historian of Justinian, exhaled his just indignation in the language of complaint and reproach; and Procopius has confidently affirmed, that in a reign of thirty-two years, each annual inroad of the Barbarians consumed two hundred thousand of the inhabitants of the Roman empire. The entire population of Turkish Europe, which nearly corresponds with the provinces of Justinian, would perhaps be incapable of supplying six millions of persons, the result of this incredible estimate. ^22

[Footnote 16: Antes corum fortissimi …. Taysis qui rapidus et vorticosus in Histri fluenta furens devolvitur, (Jornandes, c. 5, p. 194, edit. Murator. Procopius, Goth. l. iii. c. 14, et de Edific. l iv. c. 7.) Yet the same Procopius mentions the Goths and Huns as neighbors to the Danube, (de Edific. l. v. c. 1.)]

[Footnote 17: The national title of Anticus, in the laws and inscriptions of Justinian, was adopted by his successors, and is justified by the pious Ludewig (in Vit. Justinian. p. 515.) It had strangely puzzled the civilians of the middle age.]

[Footnote 18: Procopius, Goth. l. iv. c. 25.]

[Footnote 19: An inroad of the Huns is connected, by Procopius, with a comet perhaps that of 531, (Persic. l. ii. c. 4.) Agathias (l. v. p. 154, 155) borrows from his predecessors some early facts.]

[Footnote 20: The cruelties of the Sclavonians are related or magnified by Procopius, (Goth. l. iii. c. 29, 38.) For their mild and liberal behavior to their prisoners, we may appeal to the authority, somewhat more recent of the emperor Maurice, (Stratagem. l. ii. c. 5.)]

[Footnote 21: Topirus was situate near Philippi in Thrace, or Macedonia, opposite to the Isle of Thasos, twelve days' journey from Constantinople (Cellarius, tom. i. p. 676, 846.)]

[Footnote 22: According to the malevolent testimony of the Anecdotes, (c. 18,) these inroads had reduced the provinces south of the Danube to the state of a Scythian wilderness.]

In the midst of these obscure calamities, Europe felt the shock of revolution, which first revealed to the world the name and nation of the Turks. ^* Like Romulus, the founder ^! of that martial people was suckled by a she-wolf, who afterwards made him the father of a numerous progeny; and the representation of that animal in the banners of the Turks preserved the memory, or rather suggested the idea, of a fable, which was invented, without any mutual intercourse, by the shepherds of Latium and those of Scythia. At the equal distance of two thousand miles from the Caspian, the Icy, the Chinese, and the Bengal Seas, a ridge of mountains is conspicuous, the centre, and perhaps the summit, of Asia; which, in the language of different nations, has been styled Imaus, and Caf, ^23 and Altai, and the Golden Mountains, ^!! and the Girdle of the Earth. The sides of the hills were productive of minerals; and the iron forges, ^24 for the purpose of war, were exercised by the Turks, the most despised portion of the slaves of the great khan of the Geougen. But their servitude could only last till a leader, bold and eloquent, should arise to persuade his countrymen that the same arms which they forged for their masters, might become, in their own hands, the instruments of freedom and victory. They sallied from the mountains; ^25 a sceptre was the reward of his advice; and the annual ceremony, in which a piece of iron was heated in the fire, and a smith's hammer ^* was successively handled by the prince and his nobles, recorded for ages the humble profession and rational pride of the Turkish nation. Bertezena, ^!!! their first leader, signalized their valor and his own in successful combats against the neighboring tribes; but when he presumed to ask in marriage the daughter of the great khan, the insolent demand of a slave and a mechanic was contemptuously rejected. The disgrace was expiated by a more noble alliance with a princess of China; and the decisive battle which almost extirpated the nation of the Geougen, established in Tartary the new and more powerful empire of the Turks. ^* They reigned over the north; but they confessed the vanity of conquest, by their faithful attachment to the mountain of their fathers. The royal encampment seldom lost sight of Mount Altai, from whence the River Irtish descends to water the rich pastures of the Calmucks, ^26 which nourish the largest sheep and oxen in the world. The soil is fruitful, and the climate mild and temperate: the happy region was ignorant of earthquake and pestilence; the emperor's throne was turned towards the East, and a golden wolf on the top of a spear seemed to guard the entrance of his tent. One of the successors of Bertezena was tempted by the luxury and superstition of China; but his design of building cities and temples was defeated by the simple wisdom of a Barbarian counsellor. “The Turks,” he said, “are not equal in number to one hundredth part of the inhabitants of China. If we balance their power, and elude their armies, it is because we wander without any fixed habitations in the exercise of war and hunting. Are we strong? we advance and conquer: are we feeble? we retire and are concealed. Should the Turks confine themselves within the walls of cities, the loss of a battle would be the destruction of their empire. The bonzes preach only patience, humility, and the renunciation of the world. Such, O king! is not the religion of heroes.” They entertained, with less reluctance, the doctrines of Zoroaster; but the greatest part of the nation acquiesced, without inquiry, in the opinions, or rather in the practice, of their ancestors. The honors of sacrifice were reserved for the supreme deity; they acknowledged, in rude hymns, their obligations to the air, the fire, the water, and the earth; and their priests derived some profit from the art of divination. Their unwritten laws were rigorous and impartial: theft was punished with a tenfold restitution; adultery, treason, and murder, with death; and no chastisement could be inflicted too severe for the rare and inexpiable guilt of cowardice. As the subject nations marched under the standard of the Turks, their cavalry, both men and horses, were proudly computed by millions; one of their effective armies consisted of four hundred thousand soldiers, and in less than fifty years they were connected in peace and war with the Romans, the Persians, and the Chinese. In their northern limits, some vestige may be discovered of the form and situation of Kamptchatka, of a people of hunters and fishermen, whose sledges were drawn by dogs, and whose habitations were buried in the earth. The Turks were ignorant of astronomy; but the observation taken by some learned Chinese, with a gnomon of eight feet, fixes the royal camp in the latitude of forty-nine degrees, and marks their extreme progress within three, or at least ten degrees, of the polar circle. ^27 Among their southern conquests the most splendid was that of the Nephthalites, or white Huns, a polite and warlike people, who possessed the commercial cities of Bochara and Samarcand, who had vanquished the Persian monarch, and carried their victorious arms along the banks, and perhaps to the mouth, of the Indus. On the side of the West, the Turkish cavalry advanced to the Lake Maeotis. They passed that lake on the ice. The khan who dwelt at the foot of Mount Altai issued his commands for the siege of Bosphorus, ^28 a city the voluntary subject of Rome, and whose princes had formerly been the friends of Athens. ^29 To the east, the Turks invaded China, as often as the vigor of the government was relaxed: and I am taught to read in the history of the times, that they mowed down their patient enemies like hemp or grass; and that the mandarins applauded the wisdom of an emperor who repulsed these Barbarians with golden lances. This extent of savage empire compelled the Turkish monarch to establish three subordinate princes of his own blood, who soon forgot their gratitude and allegiance. The conquerors were enervated by luxury, which is always fatal except to an industrious people; the policy of China solicited the vanquished nations to resume their independence and the power of the Turks was limited to a period of two hundred years. The revival of their name and dominion in the southern countries of Asia are the events of a later age; and the dynasties, which succeeded to their native realms, may sleep in oblivion; since their history bears no relation to the decline and fall of the Roman empire. ^30

[Footnote *: It must be remembered that the name of Turks is extended to a whole family of the Asiatic races, and not confined to the Assena, or Turks of the Altai. - M.]

[Footnote !: Assena (the wolf) was the name of this chief. Klaproth, Tabl. Hist. de l'Asie p. 114. - M.]

[Footnote 23: From Caf to Caf; which a more rational geography would interpret, from Imaus, perhaps, to Mount Atlas. According to the religious philosophy of the Mahometans, the basis of Mount Caf is an emerald, whose reflection produces the azure of the sky. The mountain is endowed with a sensitive action in its roots or nerves; and their vibration, at the command of God, is the cause of earthquakes. (D'Herbelot, p. 230, 231.)] [Footnote !!: Altai, i. e. Altun Tagh, the Golden Mountain. Von Hammer Osman Geschichte, vol. i. p. 2. - M.]

[Footnote 24: The Siberian iron is the best and most plentiful in the world; and in the southern parts, above sixty mines are now worked by the industry of the Russians, (Strahlenberg, Hist. of Siberia, p. 342, 387. Voyage en Siberie, par l'Abbe Chappe d'Auteroche, p. 603 - 608, edit in 12mo. Amsterdam. 1770.) The Turks offered iron for sale; yet the Roman ambassadors, with strange obstinacy, persisted in believing that it was all a trick, and that their country produced none, (Menander in Excerpt. Leg. p. 152.)] [Footnote 25: Of Irgana-kon, (Abulghazi Khan, Hist. Genealogique des Tatars, P ii. c. 5, p. 71 - 77, c. 15, p. 155.) The tradition of the Moguls, of the 450 years which they passed in the mountains, agrees with the Chinese periods of the history of the Huns and Turks, (De Guignes, tom. i. part ii. p. 376,) and the twenty generations, from their restoration to Zingis.] [Footnote *: The Mongol Temugin is also, though erroneously, explained by Rubruquis, a smith. Schmidt, p 876. - M.]

[Footnote !!!: There appears the same confusion here. Bertezena (Berte-Scheno) is claimed as the founder of the Mongol race. The name means the gray (blauliche) wolf. In fact, the same tradition of the origin from a wolf seems common to the Mongols and the Turks. The Mongol Berte-Scheno, of the very curious Mongol History, published and translated by M. Schmidt of Petersburg, is brought from Thibet. M. Schmidt considers this tradition of the Thibetane descent of the royal race of the Mongols to be much earlier than their conversion to Lamaism, yet it seems very suspicious. See Klaproth, Tabl. de l'Asie, p. 159. The Turkish Bertezena is called Thou-men by Klaproth, p. 115. In 552, Thou-men took the title of Kha-Khan, and was called Il Khan. - M.]

[Footnote *: Great Bucharia is called Turkistan: see Hammer, 2. It includes all the last steppes at the foot of the Altai. The name is the same with that of the Turan of Persian poetic legend. - M.]

[Footnote 26: The country of the Turks, now of the Calmucks, is well described in the Genealogical History, p. 521 - 562. The curious notes of the French translator are enlarged and digested in the second volume of the English version.]

[Footnote 27: Visdelou, p. 141, 151. The fact, though it strictly belongs to a subordinate and successive tribe, may be introduced here.] [Footnote 28: Procopius, Persic. l. i. c. 12, l. ii. c. 3. Peyssonel, Observations sur les Peuples Barbares, p. 99, 100, defines the distance between Caffa and the old Bosphorus at xvi. long Tartar leagues.] [Footnote 29: See, in a Memoire of M. de Boze, (Mem. de l'Academie des Inscriptions, tom. vi. p. 549 - 565,) the ancient kings and medals of the Cimmerian Bosphorus; and the gratitude of Athens, in the Oration of Demosthenes against Leptines, (in Reiske, Orator. Graec. tom. i. p. 466, 187.)]

[Footnote 30: For the origin and revolutions of the first Turkish empire, the Chinese details are borrowed from De Guignes (Hist. des Huns, tom. P. ii. p. 367 - 462) and Visdelou, (Supplement a la Bibliotheque Orient. d'Herbelot, p. 82 - 114.) The Greek or Roman hints are gathered in Menander (p. 108 - 164) and Theophylact Simocatta, (l. vii. c. 7, 8.)]

In the rapid career of conquest, the Turks attacked and subdued the nation of the Ogors or Varchonites ^* on the banks of the River Til, which derived the epithet of Black from its dark water or gloomy forests. ^31 The khan of the Ogors was slain with three hundred thousand of his subjects, and their bodies were scattered over the space of four days' journey: their surviving countrymen acknowledged the strength and mercy of the Turks; and a small portion, about twenty thousand warriors, preferred exile to servitude. They followed the well-known road of the Volga, cherished the error of the nations who confounded them with the Avars, and spread the terror of that false though famous appellation, which had not, however, saved its lawful proprietors from the yoke of the Turks. ^32 After a long and victorious march, the new Avars arrived at the foot of Mount Caucasus, in the country of the Alani ^33 and Circassians, where they first heard of the splendor and weakness of the Roman empire. They humbly requested their confederate, the prince of the Alani, to lead them to this source of riches; and their ambassador, with the permission of the governor of Lazica, was transported by the Euxine Sea to Constantinople. The whole city was poured forth to behold with curiosity and terror the aspect of a strange people: their long hair, which hung in tresses down their backs, was gracefully bound with ribbons, but the rest of their habit appeared to imitate the fashion of the Huns. When they were admitted to the audience of Justinian, Candish, the first of the ambassadors, addressed the Roman emperor in these terms: “You see before you, O mighty prince, the representatives of the strongest and most populous of nations, the invincible, the irresistible Avars. We are willing to devote ourselves to your service: we are able to vanquish and destroy all the enemies who now disturb your repose. But we expect, as the price of our alliance, as the reward of our valor, precious gifts, annual subsidies, and fruitful possessions.” At the time of this embassy, Justinian had reigned above thirty, he had lived above seventy-five years: his mind, as well as his body, was feeble and languid; and the conqueror of Africa and Italy, careless of the permanent interest of his people, aspired only to end his days in the bosom even of inglorious peace. In a studied oration, he imparted to the senate his resolution to dissemble the insult, and to purchase the friendship of the Avars; and the whole senate, like the mandarins of China, applauded the incomparable wisdom and foresight of their sovereign. The instruments of luxury were immediately prepared to captivate the Barbarians; silken garments, soft and splendid beds, and chains and collars incrusted with gold. The ambassadors, content with such liberal reception, departed from Constantinople, and Valentin, one of the emperor's guards, was sent with a similar character to their camp at the foot of Mount Caucasus. As their destruction or their success must be alike advantageous to the empire, he persuaded them to invade the enemies of Rome; and they were easily tempted, by gifts and promises, to gratify their ruling inclinations. These fugitives, who fled before the Turkish arms, passed the Tanais and Borysthenes, and boldly advanced into the heart of Poland and Germany, violating the law of nations, and abusing the rights of victory. Before ten years had elapsed, their camps were seated on the Danube and the Elbe, many Bulgarian and Sclavonian names were obliterated from the earth, and the remainder of their tribes are found, as tributaries and vassals, under the standard of the Avars. The chagan, the peculiar title of their king, still affected to cultivate the friendship of the emperor; and Justinian entertained some thoughts of fixing them in Pannonia, to balance the prevailing power of the Lombards. But the virtue or treachery of an Avar betrayed the secret enmity and ambitious designs of their countrymen; and they loudly complained of the timid, though jealous policy, of detaining their ambassadors, and denying the arms which they had been allowed to purchase in the capital of the empire. ^34

[Footnote *: The Ogors or Varchonites, from Var. a river, (obviously connected with the name Avar,) must not be confounded with the Uigours, the eastern Turks, (v. Hammer, Osmanische Geschichte, vol. i. p. 3,) who speak a language the parent of the more modern Turkish dialects. Compare Klaproth, page 121. They are the ancestors of the Usbeck Turks. These Ogors were of the same Finnish race with the Huns; and the 20,000 families which fled towards the west, after the Turkish invasion, were of the same race with those which remained to the east of the Volga, the true Avars of Theophy fact. - M.] [Footnote 31: The River Til, or Tula, according to the geography of De Guignes, (tom. i. part ii. p. lviii. and 352,) is a small, though grateful, stream of the desert, that falls into the Orhon, Selinga, &c. See Bell, Journey from Petersburg to Pekin, (vol. ii. p. 124;) yet his own description of the Keat, down which he sailed into the Oby, represents the name and attributes of the black river, (p. 139.)

Note: M. Klaproth, (Tableaux Historiques de l'Asie, p. 274) supposes this river to be an eastern affluent of the Volga, the Kama, which, from the color of its waters, might be called black. M. Abel Remusat (Recherchea sur les Langues Tartares, vol. i. p. 320) and M. St. Martin (vol. ix. p. 373 consider it the Volga, which is called Atel or Etel by all the Turkish tribes. It is called Attilas by Menander, and Ettilia by the monk Ruysbreek (1253.) See Klaproth, Tabl. Hist. p. 247. This geography is much more clear and simple than that adopted by Gibbon from De Guignes, or suggested from Bell. - M.] [Footnote 32: Theophylact, l. vii. c. 7, 8. And yet his true Avars are invisible even to the eyes of M. de Guignes; and what can be more illustrious than the false? The right of the fugitive Ogors to that national appellation is confessed by the Turks themselves, (Menander, p. 108.)] [Footnote 33: The Alani are still found in the Genealogical History of the Tartars, (p. 617,) and in D'Anville's maps. They opposed the march of the generals of Zingis round the Caspian Sea, and were overthrown in a great battle, (Hist. de Gengiscan, l. iv. c. 9, p. 447.)]

[Footnote 34: The embassies and first conquests of the Avars may be read in Menander, (Excerpt. Legat. p. 99, 100, 101, 154, 155,) Theophanes, (p. 196,) the Historia Miscella, (l. xvi. p. 109,) and Gregory of Tours, (L iv. c. 23, 29, in the Historians of France, tom. ii. p. 214, 217.)]

Perhaps the apparent change in the dispositions of the emperors may be ascribed to the embassy which was received from the conquerors of the Avars. ^35 The immense distance which eluded their arms could not extinguish their resentment: the Turkish ambassadors pursued the footsteps of the vanquished to the Jaik, the Volga, Mount Caucasus, the Euxine and Constantinople, and at length appeared before the successor of Constantine, to request that he would not espouse the cause of rebels and fugitives. Even commerce had some share in this remarkable negotiation: and the Sogdoites, who were now the tributaries of the Turks, embraced the fair occasion of opening, by the north of the Caspian, a new road for the importation of Chinese silk into the Roman empire. The Persian, who preferred the navigation of Ceylon, had stopped the caravans of Bochara and Samarcand: their silk was contemptuously burnt: some Turkish ambassadors died in Persia, with a suspicion of poison; and the great khan permitted his faithful vassal Maniach, the prince of the Sogdoites, to propose, at the Byzantine court, a treaty of alliance against their common enemies. Their splendid apparel and rich presents, the fruit of Oriental luxury, distinguished Maniach and his colleagues from the rude savages of the North: their letters, in the Scythian character and language, announced a people who had attained the rudiments of science: ^36 they enumerated the conquests, they offered the friendship and military aid of the Turks; and their sincerity was attested by direful imprecations (if they were guilty of falsehood) against their own head, and the head of Disabul their master. The Greek prince entertained with hospitable regard the ambassadors of a remote and powerful monarch: the sight of silk-worms and looms disappointed the hopes of the Sogdoites; the emperor renounced, or seemed to renounce, the fugitive Avars, but he accepted the alliance of the Turks; and the ratification of the treaty was carried by a Roman minister to the foot of Mount Altai. Under the successors of Justinian, the friendship of the two nations was cultivated by frequent and cordial intercourse; the most favored vassals were permitted to imitate the example of the great khan, and one hundred and six Turks, who, on various occasions, had visited Constantinople, departed at the same time for their native country. The duration and length of the journey from the Byzantine court to Mount Altai are not specified: it might have been difficult to mark a road through the nameless deserts, the mountains, rivers, and morasses of Tartary; but a curious account has been preserved of the reception of the Roman ambassadors at the royal camp. After they had been purified with fire and incense, according to a rite still practised under the sons of Zingis, ^* they were introduced to the presence of Disabul. In a valley of the Golden Mountain, they found the great khan in his tent, seated in a chair with wheels, to which a horse might be occasionally harnessed. As soon as they had delivered their presents, which were received by the proper officers, they exposed, in a florid oration, the wishes of the Roman emperor, that victory might attend the arms of the Turks, that their reign might be long and prosperous, and that a strict alliance, without envy or deceit, might forever be maintained between the two most powerful nations of the earth. The answer of Disabul corresponded with these friendly professions, and the ambassadors were seated by his side, at a banquet which lasted the greatest part of the day: the tent was surrounded with silk hangings, and a Tartar liquor was served on the table, which possessed at least the intoxicating qualities of wine. The entertainment of the succeeding day was more sumptuous; the silk hangings of the second tent were embroidered in various figures; and the royal seat, the cups, and the vases, were of gold. A third pavilion was supported by columns of gilt wood; a bed of pure and massy gold was raised on four peacocks of the same metal: and before the entrance of the tent, dishes, basins, and statues of solid silver, and admirable art, were ostentatiously piled in wagons, the monuments of valor rather than of industry. When Disabul led his armies against the frontiers of Persia, his Roman allies followed many days the march of the Turkish camp, nor were they dismissed till they had enjoyed their precedency over the envoy of the great king, whose loud and intemperate clamors interrupted the silence of the royal banquet. The power and ambition of Chosroes cemented the union of the Turks and Romans, who touched his dominions on either side: but those distant nations, regardless of each other, consulted the dictates of interest, without recollecting the obligations of oaths and treaties. While the successor of Disabul celebrated his father's obsequies, he was saluted by the ambassadors of the emperor Tiberius, who proposed an invasion of Persia, and sustained, with firmness, the angry and perhaps the just reproaches of that haughty Barbarian. “You see my ten fingers,” said the great khan, and he applied them to his mouth. “You Romans speak with as many tongues, but they are tongues of deceit and perjury. To me you hold one language, to my subjects another; and the nations are successively deluded by your perfidious eloquence. You precipitate your allies into war and danger, you enjoy their labors, and you neglect your benefactors. Hasten your return, inform your master that a Turk is incapable of uttering or forgiving falsehood, and that he shall speedily meet the punishment which he deserves. While he solicits my friendship with flattering and hollow words, he is sunk to a confederate of my fugitive Varchonites. If I condescend to march against those contemptible slaves, they will tremble at the sound of our whips; they will be trampled, like a nest of ants, under the feet of my innumerable cavalry. I am not ignorant of the road which they have followed to invade your empire; nor can I be deceived by the vain pretence, that Mount Caucasus is the impregnable barrier of the Romans. I know the course of the Niester, the Danube, and the Hebrus; the most warlike nations have yielded to the arms of the Turks; and from the rising to the setting sun, the earth is my inheritance.” Notwithstanding this menace, a sense of mutual advantage soon renewed the alliance of the Turks and Romans: but the pride of the great khan survived his resentment; and when he announced an important conquest to his friend the emperor Maurice, he styled himself the master of the seven races, and the lord of the seven climates of the world. ^37 [Footnote 35: Theophanes, (Chron. p. 204,) and the Hist. Miscella, (l. xvi. p. 110,) as understood by De Guignes, tom. i. part ii. p. 354,) appear to speak of a Turkish embassy to Justinian himself; but that of Maniach, in the fourth year of his successor Justin, is positively the first that reached Constantinople, (Menander p. 108.)]

[Footnote 36: The Russians have found characters, rude hieroglyphics, on the Irtish and Yenisei, on medals, tombs, idols, rocks, obelisks, &c., (Strahlenberg, Hist. of Siberia, p. 324, 346, 406, 429.) Dr. Hyde (de Religione Veterum Persarum, p. 521, &c.) has given two alphabets of Thibet and of the Eygours. I have long harbored a suspicion, that all the Scythian, and some, perhaps much, of the Indian science, was derived from the Greeks of Bactriana.

Note: Modern discoveries give no confirmation to this suspicion. The character of Indian science, as well as of their literature and mythology, indicates an original source. Grecian art may have occasionally found its way into India. One or two of the sculptures in Col. Tod's account of the Jain temples, if correct, show a finer outline, and purer sense of beauty, than appears native to India, where the monstrous always predominated over simple nature. - M.]

[Footnote *: This rite is so curious, that I have subjoined the description of it: -

When these (the exorcisers, the Shamans) approached Zemarchus, they took all our baggage and placed it in the centre. Then, kindling a fire with branches of frankincense, lowly murmuring certain barbarous words in the Scythian language, beating on a kind of bell (a gong) and a drum, they passed over the baggage the leaves of the frankincense, crackling with the fire, and at the same time themselves becoming frantic, and violently leaping about, seemed to exorcise the evil spirits. Having thus as they thought, averted all evil, they led Zemarchus himself through the fire. Menander, in Niebuhr's Bryant. Hist. p. 381. Compare Carpini's Travels. The princes of the race of Zingis Khan condescended to receive the ambassadors of the king of France, at the end of the 13th century without their submitting to this humiliating rite. See Correspondence published by Abel Remusat, Nouv. Mem. de l'Acad des Inscrip. vol. vii. On the embassy of Zemarchus, compare Klaproth, Tableaux de l'Asie p. 116. - M.]

[Footnote 37: All the details of these Turkish and Roman embassies, so curious in the history of human manners, are drawn from the extracts of Menander, (p. 106 - 110, 151 - 154, 161 - 164,) in which we often regret the want of order and connection.]

Disputes have often arisen between the sovereigns of Asia for the title of king of the world; while the contest has proved that it could not belong to either of the competitors. The kingdom of the Turks was bounded by the Oxus or Gihon; and Touran was separated by that great river from the rival monarchy of Iran, or Persia, which in a smaller compass contained perhaps a larger measure of power and population. The Persians, who alternately invaded and repulsed the Turks and the Romans, were still ruled by the house of Sassan, which ascended the throne three hundred years before the accession of Justinian. His contemporary, Cabades, or Kobad, had been successful in war against the emperor Anastasius; but the reign of that prince was distracted by civil and religious troubles. A prisoner in the hands of his subjects, an exile among the enemies of Persia, he recovered his liberty by prostituting the honor of his wife, and regained his kingdom with the dangerous and mercenary aid of the Barbarians, who had slain his father. His nobles were suspicious that Kobad never forgave the authors of his expulsion, or even those of his restoration. The people was deluded and inflamed by the fanaticism of Mazdak, ^38 who asserted the community of women, ^39 and the equality of mankind, whilst he appropriated the richest lands and most beautiful females to the use of his sectaries. The view of these disorders, which had been fomented by his laws and example, ^40 imbittered the declining age of the Persian monarch; and his fears were increased by the consciousness of his design to reverse the natural and customary order of succession, in favor of his third and most favored son, so famous under the names of Chosroes and Nushirvan. To render the youth more illustrious in the eyes of the nations, Kobad was desirous that he should be adopted by the emperor Justin: ^* the hope of peace inclined the Byzantine court to accept this singular proposal; and Chosroes might have acquired a specious claim to the inheritance of his Roman parent. But the future mischief was diverted by the advice of the quaestor Proclus: a difficulty was started, whether the adoption should be performed as a civil or military rite; ^41 the treaty was abruptly dissolved; and the sense of this indignity sunk deep into the mind of Chosroes, who had already advanced to the Tigris on his road to Constantinople. His father did not long survive the disappointment of his wishes: the testament of their deceased sovereign was read in the assembly of the nobles; and a powerful faction, prepared for the event, and regardless of the priority of age, exalted Chosroes to the throne of Persia. He filled that throne during a prosperous period of forty-eight years; ^42 and the Justice of Nushirvan is celebrated as the theme of immortal praise by the nations of the East. [Footnote 38: See D'Herbelot, (Bibliot. Orient. p. 568, 929;) Hyde, (de Religione Vet. Persarum, c. 21, p. 290, 291;) Pocock, (Specimen Hist. Arab. p. 70, 71;) Eutychius, (Annal. tom. ii. p. 176;) Texeira, (in Stevens, Hist. of Persia, l. i. c. 34.)

Note: Mazdak was an Archimagus, born, according to Mirkhond, (translated by De Sacy, p. 353, and Malcolm, vol. i. p. 104,) at Istakhar or Persepolis, according to an inedited and anonymous history, (the Modjmal- alte-warikh in the Royal Library at Paris, quoted by St. Martin, vol. vii. p. 322) at Wischapour in Chorasan: his father's name was Bamdadam. He announces himself as a reformer of Zoroastrianism, and carried the doctrine of the two principles to a much grater height. He preached the absolute indifference of human action, perfect equality of rank, community of property and of women, marriages between the nearest kindred; he interdicted the use of animal food, proscribed the killing of animals for food, enforced a vegetable diet. See St. Martin, vol. vii. p. 322. Malcolm, vol. i. p. 104. Mirkhond translated by De Sacy. It is remarkable that the doctrine of Mazdak spread into the West. Two inscriptions found in Cyrene, in 1823, and explained by M. Gesenius, and by M. Hamaker of Leyden, prove clearly that his doctrines had been eagerly embraced by the remains of the ancient Gnostics; and Mazdak was enrolled with Thoth, Saturn, Zoroaster, Pythagoras, Epicurus, John, and Christ, as the teachers of true Gnostic wisdom. See St. Martin, vol. vii. p. 338. Gesenius de Inscriptione Phoenicio-Graeca in Cyrenaica nuper reperta, Halle, 1825. Hamaker, Lettre a M. Raoul Rochette, Leyden, 1825. - M.] [Footnote 39: The fame of the new law for the community of women was soon propagated in Syria (Asseman. Bibliot. Orient. tom. iii. p. 402) and Greece, (Procop. Persic. l. i. c. 5.)]

[Footnote 40: He offered his own wife and sister to the prophet; but the prayers of Nushirvan saved his mother, and the indignant monarch never forgave the humiliation to which his filial piety had stooped: pedes tuos deosculatus (said he to Mazdak,) cujus foetor adhuc nares occupat, (Pocock, Specimen Hist. Arab. p. 71.)]

[Footnote *: St. Martin questions this adoption: he urges its improbability; and supposes that Procopius, perverting some popular traditions, or the remembrance of some fruitless negotiations which took place at that time, has mistaken, for a treaty of adoption some treaty of guaranty or protection for the purpose of insuring the crown, after the death of Kobad, to his favorite son Chosroes, vol. viii. p. 32. Yet the Greek historians seem unanimous as to the proposal: the Persians might be expected to maintain silence on such a subject. - M.]

[Footnote 41: Procopius, Persic. l. i. c. 11. Was not Proclus over-wise? Was not the danger imaginary? - The excuse, at least, was injurious to a nation not ignorant of letters. Whether any mode of adoption was practised in Persia, I much doubt.]

[Footnote 42: From Procopius and Agathias, Pagi (tom. ii. p. 543, 626) has proved that Chosroes Nushirvan ascended the throne in the fifth year of Justinian, (A.D. 531, April 1. - A.D. 532, April 1.) But the true chronology, which harmonizes with the Greeks and Orientals, is ascertained by John Malala, (tom. ii. 211.) Cabades, or Kobad, after a reign of forty-three years and two months, sickened the 8th, and died the 13th of September, A.D. 531, aged eighty-two years. According to the annals of Eutychius, Nushirvan reigned forty seven years and six months; and his death must consequently be placed in March, A.D. 579.]

But the justice of kings is understood by themselves, and even by their subjects, with an ample indulgence for the gratification of passion and interest. The virtue of Chosroes was that of a conqueror, who, in the measures of peace and war, is excited by ambition, and restrained by prudence; who confounds the greatness with the happiness of a nation, and calmly devotes the lives of thousands to the fame, or even the amusement, of a single man. In his domestic administration, the just Nushirvan would merit in our feelings the appellation of a tyrant. His two elder brothers had been deprived of their fair expectations of the diadem: their future life, between the supreme rank and the condition of subjects, was anxious to themselves and formidable to their master: fear as well as revenge might tempt them to rebel: the slightest evidence of a conspiracy satisfied the author of their wrongs; and the repose of Chosroes was secured by the death of these unhappy princes, with their families and adherents. One guiltless youth was saved and dismissed by the compassion of a veteran general; and this act of humanity, which was revealed by his son, overbalanced the merit of reducing twelve nations to the obedience of Persia. The zeal and prudence of Mebodes had fixed the diadem on the head of Chosroes himself; but he delayed to attend the royal summons, till he had performed the duties of a military review: he was instantly commanded to repair to the iron tripod, which stood before the gate of the palace, ^43 where it was death to relieve or approach the victim; and Mebodes languished several days before his sentence was pronounced, by the inflexible pride and calm ingratitude of the son of Kobad. But the people, more especially in the East, is disposed to forgive, and even to applaud, the cruelty which strikes at the loftiest heads; at the slaves of ambition, whose voluntary choice has exposed them to live in the smiles, and to perish by the frown, of a capricious monarch. In the execution of the laws which he had no temptation to violate; in the punishment of crimes which attacked his own dignity, as well as the happiness of individuals; Nushirvan, or Chosroes, deserved the appellation of just. His government was firm, rigorous, and impartial. It was the first labor of his reign to abolish the dangerous theory of common or equal possessions: the lands and women which the sectaries of Mazdak has usurped were restored to their lawful owners; and the temperate ^* chastisement of the fanatics or impostors confirmed the domestic rights of society. Instead of listening with blind confidence to a favorite minister, he established four viziers over the four great provinces of his empire, Assyria, Media, Persia, and Bactriana. In the choice of judges, praefects, and counsellors, he strove to remove the mask which is always worn in the presence of kings: he wished to substitute the natural order of talents for the accidental distinctions of birth and fortune; he professed, in specious language, his intention to prefer those men who carried the poor in their bosoms, and to banish corruption from the seat of justice, as dogs were excluded from the temples of the Magi. The code of laws of the first Artaxerxes was revived and published as the rule of the magistrates; but the assurance of speedy punishment was the best security of their virtue. Their behavior was inspected by a thousand eyes, their words were overheard by a thousand ears, the secret or public agents of the throne; and the provinces, from the Indian to the Arabian confines, were enlightened by the frequent visits of a sovereign, who affected to emulate his celestial brother in his rapid and salutary career. Education and agriculture he viewed as the two objects most deserving of his care. In every city of Persia orphans, and the children of the poor, were maintained and instructed at the public expense; the daughters were given in marriage to the richest citizens of their own rank, and the sons, according to their different talents, were employed in mechanic trades, or promoted to more honorable service. The deserted villages were relieved by his bounty; to the peasants and farmers who were found incapable of cultivating their lands, he distributed cattle, seed, and the instruments of husbandry; and the rare and inestimable treasure of fresh water was parsimoniously managed, and skilfully dispersed over the arid territory of Persia. ^44 The prosperity of that kingdom was the effect and evidence of his virtues; his vices are those of Oriental despotism; but in the long competition between Chosroes and Justinian, the advantage both of merit and fortune is almost always on the side of the Barbarian. ^45 [Footnote 43: Procopius, Persic. l. i. c. 23. Brisson, de Regn. Pers. p. 494. The gate of the palace of Ispahan is, or was, the fatal scene of disgrace or death, (Chardin, Voyage en Perse, tom. iv. p. 312, 313.)]

[Footnote *: This is a strange term. Nushirvan employed a stratagem similar to that of Jehu, 2 Kings, x. 18 - 28, to separate the followers of Mazdak from the rest of his subjects, and with a body of his troops cut them all in pieces. The Greek writers concur with the Persian in this representation of Nushirvan's temperate conduct. Theophanes, p. 146. Mirkhond. p. 362. Eutychius, Ann. vol. ii. p. 179. Abulfeda, in an unedited part, consulted by St. Martin as well as in a passage formerly cited. Le Beau vol. viii. p. 38. Malcolm vol l p. 109. - M.]

[Footnote 44: In Persia, the prince of the waters is an officer of state. The number of wells and subterraneous channels is much diminished, and with it the fertility of the soil: 400 wells have been recently lost near Tauris, and 42,000 were once reckoned in the province of Khorasan (Chardin, tom. iii. p. 99, 100. Tavernier, tom. i. p. 416.)]

[Footnote 45: The character and government of Nushirvan is represented some times in the words of D'Herbelot, (Bibliot. Orient. p. 680, &c., from Khondemir,) Eutychius, (Annal. tom. ii. p. 179, 180, - very rich,) Abulpharagius, (Dynast. vii. p. 94, 95, - very poor,) Tarikh Schikard, (p. 144 - 150,) Texeira, (in Stevens, l. i. c. 35,) Asseman, (Bibliot Orient. tom. iii. p. 404 - 410,) and the Abbe Fourmont, (Hist. de l'Acad. des Inscriptions, tom. vii. p. 325 - 334,) who has translated a spurious or genuine testament of Nushirvan.]

To the praise of justice Nushirvan united the reputation of knowledge; and the seven Greek philosophers, who visited his court, were invited and deceived by the strange assurance, that a disciple of Plato was seated on the Persian throne. Did they expect, that a prince, strenuously exercised in the toils of war and government, should agitate, with dexterity like their own, the abstruse and profound questions which amused the leisure of the schools of Athens? Could they hope that the precepts of philosophy should direct the life, and control the passions, of a despot, whose infancy had been taught to consider his absolute and fluctuating will as the only rule of moral obligation? ^46 The studies of Chosroes were ostentatious and superficial: but his example awakened the curiosity of an ingenious people, and the light of science was diffused over the dominions of Persia. ^47 At Gondi Sapor, in the neighborhood of the royal city of Susa, an academy of physic was founded, which insensibly became a liberal school of poetry, philosophy, and rhetoric. ^48 The annals of the monarchy ^49 were composed; and while recent and authentic history might afford some useful lessons both to the prince and people, the darkness of the first ages was embellished by the giants, the dragons, and the fabulous heroes of Oriental romance. ^50 Every learned or confident stranger was enriched by the bounty, and flattered by the conversation, of the monarch: he nobly rewarded a Greek physician, ^51 by the deliverance of three thousand, captives; and the sophists, who contended for his favor, were exasperated by the wealth and insolence of Uranius, their more successful rival. Nushirvan believed, or at least respected, the religion of the Magi; and some traces of persecution may be discovered in his reign. ^52 Yet he allowed himself freely to compare the tenets of the various sects; and the theological disputes, in which he frequently presided, diminished the authority of the priest, and enlightened the minds of the people. At his command, the most celebrated writers of Greece and India were translated into the Persian language; a smooth and elegant idiom, recommended by Mahomet to the use of paradise; though it is branded with the epithets of savage and unmusical, by the ignorance and presumption of Agathias. ^53 Yet the Greek historian might reasonably wonder that it should be found possible to execute an entire version of Plato and Aristotle in a foreign dialect, which had not been framed to express the spirit of freedom and the subtilties of philosophic disquisition. And, if the reason of the Stagyrite might be equally dark, or equally intelligible in every tongue, the dramatic art and verbal argumentation of the disciple of Socrates, ^54 appear to be indissolubly mingled with the grace and perfection of his Attic style. In the search of universal knowledge, Nushirvan was informed, that the moral and political fables of Pilpay, an ancient Brachman, were preserved with jealous reverence among the treasures of the kings of India. The physician Perozes was secretly despatched to the banks of the Ganges, with instructions to procure, at any price, the communication of this valuable work. His dexterity obtained a transcript, his learned diligence accomplished the translation; and the fables of Pilpay ^55 were read and admired in the assembly of Nushirvan and his nobles. The Indian original, and the Persian copy, have long since disappeared; but this venerable monument has been saved by the curiosity of the Arabian caliphs, revived in the modern Persic, the Turkish, the Syriac, the Hebrew, and the Greek idioms, and transfused through successive versions into the modern languages of Europe. In their present form, the peculiar character, the manners and religion of the Hindoos, are completely obliterated; and the intrinsic merit of the fables of Pilpay is far inferior to the concise elegance of Phaedrus, and the native graces of La Fontaine. Fifteen moral and political sentences are illustrated in a series of apologues: but the composition is intricate, the narrative prolix, and the precept obvious and barren. Yet the Brachman may assume the merit of inventing a pleasing fiction, which adorns the nakedness of truth, and alleviates, perhaps, to a royal ear, the harshness of instruction. With a similar design, to admonish kings that they are strong only in the strength of their subjects, the same Indians invented the game of chess, which was likewise introduced into Persia under the reign of Nushirvan. ^56 [Footnote 46: A thousand years before his birth, the judges of Persia had given a solemn opinion, (Herodot. l. iii. c. 31, p. 210, edit. Wesseling.) Nor had this constitutional maxim been neglected as a useless and barren theory.] [Footnote 47: On the literary state of Persia, the Greek versions, philosophers, sophists, the learning or ignorance of Chosroes, Agathias (l. ii. c. 66 - 71) displays much information and strong prejudices.] [Footnote 48: Asseman. Bibliot. Orient. tom. iv. p. DCCXLV. vi. vii.] [Footnote 49: The Shah Nameh, or Book of Kings, is perhaps the original record of history which was translated into Greek by the interpreter Sergius, (Agathias, l. v. p. 141,) preserved after the Mahometan conquest, and versified in the year 994, by the national poet Ferdoussi. See D'Anquetil (Mem. de l'Academie, tom. xxxi. p. 379) and Sir William Jones, (Hist. of Nadir Shah, p. 161.)]

[Footnote 50: In the fifth century, the name of Restom, or Rostam, a hero who equalled the strength of twelve elephants, was familiar to the Armenians, (Moses Chorenensis, Hist. Armen. l. ii. c. 7, p. 96, edit. Whiston.) In the beginning of the seventh, the Persian Romance of Rostam and Isfendiar was applauded at Mecca, (Sale's Koran, c. xxxi. p. 335.) Yet this exposition of ludicrum novae historiae is not given by Maracci, (Refutat. Alcoran. p. 544 - 548.)]

[Footnote 51: Procop. (Goth. l. iv. c. 10.) Kobad had a favorite Greek physician, Stephen of Edessa, (Persic. l. ii. c. 26.) The practice was ancient; and Herodotus relates the adventures of Democedes of Crotona, (l. iii p. 125 - 137.]

[Footnote 52: See Pagi, tom. ii. p. 626. In one of the treaties an honorable article was inserted for the toleration and burial of the Catholics, (Menander, in Excerpt. Legat. p. 142.) Nushizad, a son of Nushirvan, was a Christian, a rebel, and - a martyr? (D'Herbelot, p. 681.)] [Footnote 53: On the Persian language, and its three dialects, consult D'Anquetil (p. 339 - 343) and Jones, (p. 153 - 185:) is the character which Agathias (l. ii. p. 66) ascribes to an idiom renowned in the East for poetical softness.]

[Footnote 54: Agathias specifies the Gorgias, Phaedon, Parmenides, and Timaeus. Renaudot (Fabricius, Bibliot. Graec. tom. xii. p. 246 - 261) does not mention this Barbaric version of Aristotle.]

[Footnote 55: Of these fables, I have seen three copies in three different languages: 1. In Greek, translated by Simeon Seth (A.D. 1100) from the Arabic, and published by Starck at Berlin in 1697, in 12mo. 2. In Latin, a version from the Greek Sapientia Indorum, inserted by Pere Poussin at the end of his edition of Pachymer, (p. 547 - 620, edit. Roman.) 3. In French, from the Turkish, dedicated, in 1540, to Sultan Soliman Contes et Fables Indiennes de Bidpai et de Lokman, par Mm. Galland et Cardonne, Paris, 1778, 3 vols. in 12mo. Mr. Warton (History of English Poetry, vol. i. p. 129 - 131) takes a larger scope.

Note: The oldest Indian collection extant is the Pancha-tantra, (the five collections,) analyzed by Mr. Wilson in the Transactions of the Royal Asiat. Soc. It was translated into Persian by Barsuyah, the physician of Nushirvan, under the name of the Fables of Bidpai, (Vidyapriya, the Friend of Knowledge, or, as the Oriental writers understand it, the Friend of Medicine.) It was translated into Arabic by Abdolla Ibn Mokaffa, under the name of Kalila and Dimnah. From the Arabic it passed into the European languages. Compare Wilson, in Trans. As. Soc. i. 52. dohlen, das alte Indien, ii. p. 386. Silvestre de Sacy, Memoire sur Kalila vs Dimnah. - M.]

[Footnote 56: See the Historia Shahiludii of Dr. Hyde, (Syntagm. Dissertat. tom. ii. p. 61 - 69.)]

The son of Kobad found his kingdom involved in a war with the successor of Constantine; and the anxiety of his domestic situation inclined him to grant the suspension of arms, which Justinian was impatient to purchase. Chosroes saw the Roman ambassadors at his feet. He accepted eleven thousand pounds of gold, as the price of an endless or indefinite peace: ^57 some mutual exchanges were regulated; the Persian assumed the guard of the gates of Caucasus, and the demolition of Dara was suspended, on condition that it should never be made the residence of the general of the East. This interval of repose had been solicited, and was diligently improved, by the ambition of the emperor: his African conquests were the first fruits of the Persian treaty; and the avarice of Chosroes was soothed by a large portion of the spoils of Carthage, which his ambassadors required in a tone of pleasantry and under the color of friendship. ^58 But the trophies of Belisarius disturbed the slumbers of the great king; and he heard with astonishment, envy, and fear, that Sicily, Italy, and Rome itself, had been reduced, in three rapid campaigns, to the obedience of Justinian. Unpractised in the art of violating treaties, he secretly excited his bold and subtle vassal Almondar. That prince of the Saracens, who resided at Hira, ^59 had not been included in the general peace, and still waged an obscure war against his rival Arethas, the chief of the tribe of Gassan, and confederate of the empire. The subject of their dispute was an extensive sheep-walk in the desert to the south of Palmyra. An immemorial tribute for the license of pasture appeared to attest the rights of Almondar, while the Gassanite appealed to the Latin name of strata, a paved road, as an unquestionable evidence of the sovereignty and labors of the Romans. ^60 The two monarchs supported the cause of their respective vassals; and the Persian Arab, without expecting the event of a slow and doubtful arbitration, enriched his flying camp with the spoil and captives of Syria. Instead of repelling the arms, Justinian attempted to seduce the fidelity of Almondar, while he called from the extremities of the earth the nations of Aethiopia and Scythia to invade the dominions of his rival. But the aid of such allies was distant and precarious, and the discovery of this hostile correspondence justified the complaints of the Goths and Armenians, who implored, almost at the same time, the protection of Chosroes. The descendants of Arsaces, who were still numerous in Armenia, had been provoked to assert the last relics of national freedom and hereditary rank; and the ambassadors of Vitiges had secretly traversed the empire to expose the instant, and almost inevitable, danger of the kingdom of Italy. Their representations were uniform, weighty, and effectual. “We stand before your throne, the advocates of your interest as well as of our own. The ambitious and faithless Justinian aspires to be the sole master of the world. Since the endless peace, which betrayed the common freedom of mankind, that prince, your ally in words, your enemy in actions, has alike insulted his friends and foes, and has filled the earth with blood and confusion. Has he not violated the privileges of Armenia, the independence of Colchos, and the wild liberty of the Tzanian mountains? Has he not usurped, with equal avidity, the city of Bosphorus on the frozen Maeotis, and the vale of palm-trees on the shores of the Red Sea? The Moors, the Vandals, the Goths, have been successively oppressed, and each nation has calmly remained the spectator of their neighbor's ruin. Embrace, O king! the favorable moment; the East is left without defence, while the armies of Justinian and his renowned general are detained in the distant regions of the West. If you hesitate or delay, Belisarius and his victorious troops will soon return from the Tyber to the Tigris, and Persia may enjoy the wretched consolation of being the last devoured.” ^61 By such arguments, Chosroes was easily persuaded to imitate the example which he condemned: but the Persian, ambitious of military fame, disdained the inactive warfare of a rival, who issued his sanguinary commands from the secure station of the Byzantine palace. [Footnote 57: The endless peace (Procopius, Persic. l. i. c. 21) was concluded or ratified in the vith year, and iiid consulship, of Justinian, (A.D. 533, between January 1 and April 1. Pagi, tom. ii. p. 550.) Marcellinus, in his Chronicle, uses the style of Medes and Persians.]

[Footnote 58: Procopius, Persic. l. i. c. 26.]

[Footnote 59: Almondar, king of Hira, was deposed by Kobad, and restored by Nushirvan. His mother, from her beauty, was surnamed Celestial Water, an appellation which became hereditary, and was extended for a more noble cause (liberality in famine) to the Arab princes of Syria, (Pocock, Specimen Hist. Arab. p. 69, 70.)]

[Footnote 60: Procopius, Persic. l. ii. c. 1. We are ignorant of the origin and object of this strata, a paved road of ten days' journey from Auranitis to Babylonia. (See a Latin note in Delisle's Map Imp. Orient.) Wesseling and D'Anville are silent.]

[Footnote 61: I have blended, in a short speech, the two orations of the Arsacides of Armenia and the Gothic ambassadors. Procopius, in his public history, feels, and makes us feel, that Justinian was the true author of the war, (Persic. l. ii. c. 2, 3.)]

Whatever might be the provocations of Chosroes, he abused the confidence of treaties; and the just reproaches of dissimulation and falsehood could only be concealed by the lustre of his victories. ^62 The Persian army, which had been assembled in the plains of Babylon, prudently declined the strong cities of Mesopotamia, and followed the western bank of the Euphrates, till the small, though populous, town of Dura ^* presumed to arrest the progress of the great king. The gates of Dura, by treachery and surprise, were burst open; and as soon as Chosroes had stained his cimeter with the blood of the inhabitants, he dismissed the ambassador of Justinian to inform his master in what place he had left the enemy of the Romans. The conqueror still affected the praise of humanity and justice; and as he beheld a noble matron with her infant rudely dragged along the ground, he sighed, he wept, and implored the divine justice to punish the author of these calamities. Yet the herd of twelve thousand captives was ransomed for two hundred pounds of gold; the neighboring bishop of Sergiopolis pledged his faith for the payment: and in the subsequent year the unfeeling avarice of Chosroes exacted the penalty of an obligation which it was generous to contract and impossible to discharge. He advanced into the heart of Syria: but a feeble enemy, who vanished at his approach, disappointed him of the honor of victory; and as he could not hope to establish his dominion, the Persian king displayed in this inroad the mean and rapacious vices of a robber. Hierapolis, Berrhaea or Aleppo, Apamea and Chalcis, were successively besieged: they redeemed their safety by a ransom of gold or silver, proportioned to their respective strength and opulence; and their new master enforced, without observing, the terms of capitulation. Educated in the religion of the Magi, he exercised, without remorse, the lucrative trade of sacrilege; and, after stripping of its gold and gems a piece of the true cross, he generously restored the naked relic to the devotion of the Christians of Apamea. No more than fourteen years had elapsed since Antioch was ruined by an earthquake; ^! but the queen of the East, the new Theopolis, had been raised from the ground by the liberality of Justinian; and the increasing greatness of the buildings and the people already erased the memory of this recent disaster. On one side, the city was defended by the mountain, on the other by the River Orontes; but the most accessible part was commanded by a superior eminence: the proper remedies were rejected, from the despicable fear of discovering its weakness to the enemy; and Germanus, the emperor's nephew, refused to trust his person and dignity within the walls of a besieged city. The people of Antioch had inherited the vain and satirical genius of their ancestors: they were elated by a sudden reenforcement of six thousand soldiers; they disdained the offers of an easy capitulation and their intemperate clamors insulted from the ramparts the majesty of the great king. Under his eye the Persian myriads mounted with scaling-ladders to the assault; the Roman mercenaries fled through the opposite gate of Daphne; and the generous assistance of the youth of Antioch served only to aggravate the miseries of their country. As Chosroes, attended by the ambassadors of Justinian, was descending from the mountain, he affected, in a plaintive voice, to deplore the obstinacy and ruin of that unhappy people; but the slaughter still raged with unrelenting fury; and the city, at the command of a Barbarian, was delivered to the flames. The cathedral of Antioch was indeed preserved by the avarice, not the piety, of the conqueror: a more honorable exemption was granted to the church of St. Julian, and the quarter of the town where the ambassadors resided; some distant streets were saved by the shifting of the wind, and the walls still subsisted to protect, and soon to betray, their new inhabitants. Fanaticism had defaced the ornaments of Daphne, but Chosroes breathed a purer air amidst her groves and fountains; and some idolaters in his train might sacrifice with impunity to the nymphs of that elegant retreat. Eighteen miles below Antioch, the River Orontes falls into the Mediterranean. The haughty Persian visited the term of his conquests; and, after bathing alone in the sea, he offered a solemn sacrifice of thanksgiving to the sun, or rather to the Creator of the sun, whom the Magi adored. If this act of superstition offended the prejudices of the Syrians, they were pleased by the courteous and even eager attention with which he assisted at the games of the circus; and as Chosroes had heard that the blue faction was espoused by the emperor, his peremptory command secured the victory of the green charioteer. From the discipline of his camp the people derived more solid consolation; and they interceded in vain for the life of a soldier who had too faithfully copied the rapine of the just Nushirvan. At length, fatigued, though unsatiated, with the spoil of Syria, ^* he slowly moved to the Euphrates, formed a temporary bridge in the neighborhood of Barbalissus, and defined the space of three days for the entire passage of his numerous host. After his return, he founded, at the distance of one day's journey from the palace of Ctesiphon, a new city, which perpetuated the joint names of Chosroes and of Antioch. The Syrian captives recognized the form and situation of their native abodes: baths and a stately circus were constructed for their use; and a colony of musicians and charioteers revived in Assyria the pleasures of a Greek capital. By the munificence of the royal founder, a liberal allowance was assigned to these fortunate exiles; and they enjoyed the singular privilege of bestowing freedom on the slaves whom they acknowledged as their kinsmen. Palestine, and the holy wealth of Jerusalem, were the next objects that attracted the ambition, or rather the avarice, of Chosroes. Constantinople, and the palace of the Caesars, no longer appeared impregnable or remote; and his aspiring fancy already covered Asia Minor with the troops, and the Black Sea with the navies, of Persia.

[Footnote 62: The invasion of Syria, the ruin of Antioch, &c., are related in a full and regular series by Procopius, (Persic. l. ii. c. 5 - 14.) Small collateral aid can be drawn from the Orientals: yet not they, but D'Herbelot himself, (p. 680,) should blush when he blames them for making Justinian and Nushirvan contemporaries. On the geography of the seat of war, D'Anville (l'Euphrate et le Tigre) is sufficient and satisfactory.]

[Footnote *: It is Sura in Procopius. Is it a misprint in Gibbon? - M.] [Footnote !: Joannes Lydus attributes the easy capture of Antioch to the want of fortifications which had not been restored since the earthquake, l. iii. c. 54. p. 246. - M.]

[Footnote *: Lydus asserts that he carried away all the statues, pictures, and marbles which adorned the city, l. iii. c. 54, p. 246. - M.] These hopes might have been realized, if the conqueror of Italy had not been seasonably recalled to the defence of the East. ^63 While Chosroes pursued his ambitious designs on the coast of the Euxine, Belisarius, at the head of an army without pay or discipline, encamped beyond the Euphrates, within six miles of Nisibis. He meditated, by a skilful operation, to draw the Persians from their impregnable citadel, and improving his advantage in the field, either to intercept their retreat, or perhaps to enter the gates with the flying Barbarians. He advanced one day's journey on the territories of Persia, reduced the fortress of Sisaurane, and sent the governor, with eight hundred chosen horsemen, to serve the emperor in his Italian wars. He detached Arethas and his Arabs, supported by twelve hundred Romans, to pass the Tigris, and to ravage the harvests of Assyria, a fruitful province, long exempt from the calamities of war. But the plans of Belisarius were disconcerted by the untractable spirit of Arethas, who neither returned to the camp, nor sent any intelligence of his motions. The Roman general was fixed in anxious expectation to the same spot; the time of action elapsed, the ardent sun of Mesopotamia inflamed with fevors the blood of his European soldiers; and the stationary troops and officers of Syria affected to tremble for the safety of their defenceless cities. Yet this diversion had already succeeded in forcing Chosroes to return with loss and precipitation; and if the skill of Belisarius had been seconded by discipline and valor, his success might have satisfied the sanguine wishes of the public, who required at his hands the conquest of Ctesiphon, and the deliverance of the captives of Antioch. At the end of the campaign, he was recalled to Constantinople by an ungrateful court, but the dangers of the ensuing spring restored his confidence and command; and the hero, almost alone, was despatched, with the speed of post-horses, to repel, by his name and presence, the invasion of Syria. He found the Roman generals, among whom was a nephew of Justinian, imprisoned by their fears in the fortifications of Hierapolis. But instead of listening to their timid counsels, Belisarius commanded them to follow him to Europus, where he had resolved to collect his forces, and to execute whatever God should inspire him to achieve against the enemy. His firm attitude on the banks of the Euphrates restrained Chosroes from advancing towards Palestine; and he received with art and dignity the ambassadors, or rather spies, of the Persian monarch. The plain between Hierapolis and the river was covered with the squadrons of cavalry, six thousand hunters, tall and robust, who pursued their game without the apprehension of an enemy. On the opposite bank the ambassadors descried a thousand Armenian horse, who appeared to guard the passage of the Euphrates. The tent of Belisarius was of the coarsest linen, the simple equipage of a warrior who disdained the luxury of the East. Around his tent, the nations who marched under his standard were arranged with skilful confusion. The Thracians and Illyrians were posted in the front, the Heruli and Goths in the centre; the prospect was closed by the Moors and Vandals, and their loose array seemed to multiply their numbers. Their dress was light and active; one soldier carried a whip, another a sword, a third a bow, a fourth, perhaps, a battle axe, and the whole picture exhibited the intrepidity of the troops and the vigilance of the general. Chosroes was deluded by the address, and awed by the genius, of the lieutenant of Justinian. Conscious of the merit, and ignorant of the force, of his antagonist, he dreaded a decisive battle in a distant country, from whence not a Persian might return to relate the melancholy tale. The great king hastened to repass the Euphrates; and Belisarius pressed his retreat, by affecting to oppose a measure so salutary to the empire, and which could scarcely have been prevented by an army of a hundred thousand men. Envy might suggest to ignorance and pride, that the public enemy had been suffered to escape: but the African and Gothic triumphs are less glorious than this safe and bloodless victory, in which neither fortune, nor the valor of the soldiers, can subtract any part of the general's renown. The second removal of Belisarius from the Persian to the Italian war revealed the extent of his personal merit, which had corrected or supplied the want of discipline and courage. Fifteen generals, without concert or skill, led through the mountains of Armenia an army of thirty thousand Romans, inattentive to their signals, their ranks, and their ensigns. Four thousand Persians, intrenched in the camp of Dubis, vanquished, almost without a combat, this disorderly multitude; their useless arms were scattered along the road, and their horses sunk under the fatigue of their rapid flight. But the Arabs of the Roman party prevailed over their brethren; the Armenians returned to their allegiance; the cities of Dara and Edessa resisted a sudden assault and a regular siege, and the calamities of war were suspended by those of pestilence. A tacit or formal agreement between the two sovereigns protected the tranquillity of the Eastern frontier; and the arms of Chosroes were confined to the Colchian or Lazic war, which has been too minutely described by the historians of the times. ^64 [Footnote 63: In the public history of Procopius, (Persic. l. ii. c. 16, 18, 19, 20, 21, 24, 25, 26, 27, 28;) and, with some slight exceptions, we may reasonably shut our ears against the malevolent whisper of the Anecdotes, (c. 2, 3, with the Notes, as usual, of Alemannus.)]

[Footnote 64: The Lazic war, the contest of Rome and Persia on the Phasis, is tediously spun through many a page of Procopius (Persic. l. ii. c. 15, 17, 28, 29, 30.) Gothic. l. iv. c. 7 - 16) and Agathias, (l. ii. iii. and iv. p. 55 - 132, 141.)]

The extreme length of the Euxine Sea ^65 from Constantinople to the mouth of the Phasis, may be computed as a voyage of nine days, and a measure of seven hundred miles. From the Iberian Caucasus, the most lofty and craggy mountains of Asia, that river descends with such oblique vehemence, that in a short space it is traversed by one hundred and twenty bridges. Nor does the stream become placid and navigable, till it reaches the town of Sarapana, five days' journey from the Cyrus, which flows from the same hills, but in a contrary direction to the Caspian Lake. The proximity of these rivers has suggested the practice, or at least the idea, of wafting the precious merchandise of India down the Oxus, over the Caspian, up the Cyrus, and with the current of the Phasis into the Euxine and Mediterranean Seas. As it successively collects the streams of the plain of Colchos, the Phasis moves with diminished speed, though accumulated weight. At the mouth it is sixty fathom deep, and half a league broad, but a small woody island is interposed in the midst of the channel; the water, so soon as it has deposited an earthy or metallic sediment, floats on the surface of the waves, and is no longer susceptible of corruption. In a course of one hundred miles, forty of which are navigable for large vessels, the Phasis divides the celebrated region of Colchos, ^66 or Mingrelia, ^67 which, on three sides, is fortified by the Iberian and Armenian mountains, and whose maritime coast extends about two hundred miles from the neighborhood of Trebizond to Dioscurias and the confines of Circassia. Both the soil and climate are relaxed by excessive moisture: twenty-eight rivers, besides the Phasis and his dependent streams, convey their waters to the sea; and the hollowness of the ground appears to indicate the subterraneous channels between the Euxine and the Caspian. In the fields where wheat or barley is sown, the earth is too soft to sustain the action of the plough; but the gom, a small grain, not unlike the millet or coriander seed, supplies the ordinary food of the people; and the use of bread is confined to the prince and his nobles. Yet the vintage is more plentiful than the harvest; and the bulk of the stems, as well as the quality of the wine, display the unassisted powers of nature. The same powers continually tend to overshadow the face of the country with thick forests; the timber of the hills, and the flax of the plains, contribute to the abundance of naval stores; the wild and tame animals, the horse, the ox, and the hog, are remarkably prolific, and the name of the pheasant is expressive of his native habitation on the banks of the Phasis. The gold mines to the south of Trebizond, which are still worked with sufficient profit, were a subject of national dispute between Justinian and Chosroes; and it is not unreasonable to believe, that a vein of precious metal may be equally diffused through the circle of the hills, although these secret treasures are neglected by the laziness, or concealed by the prudence, of the Mingrelians. The waters, impregnated with particles of gold, are carefully strained through sheep-skins or fleeces; but this expedient, the groundwork perhaps of a marvellous fable, affords a faint image of the wealth extracted from a virgin earth by the power and industry of ancient kings. Their silver palaces and golden chambers surpass our belief; but the fame of their riches is said to have excited the enterprising avarice of the Argonauts. ^68 Tradition has affirmed, with some color of reason, that Egypt planted on the Phasis a learned and polite colony, ^69 which manufactured linen, built navies, and invented geographical maps. The ingenuity of the moderns has peopled, with flourishing cities and nations, the isthmus between the Euxine and the Caspian; ^70 and a lively writer, observing the resemblance of climate, and, in his apprehension, of trade, has not hesitated to pronounce Colchos the Holland of antiquity. ^71 [Footnote 65: The Periplus, or circumnavigation of the Euxine Sea, was described in Latin by Sallust, and in Greek by Arrian: I. The former work, which no longer exists, has been restored by the singular diligence of M. de Brosses, first president of the parliament of Dijon, (Hist. de la Republique Romaine, tom. ii. l. iii. p. 199 - 298,) who ventures to assume the character of the Roman historian. His description of the Euxine is ingeniously formed of all the fragments of the original, and of all the Greeks and Latins whom Sallust might copy, or by whom he might be copied; and the merit of the execution atones for the whimsical design. 2. The Periplus of Arrian is addressed to the emperor Hadrian, (in Geograph. Minor. Hudson, tom. i.,) and contains whatever the governor of Pontus had seen from Trebizond to Dioscurias; whatever he had heard from Dioscurias to the Danube; and whatever he knew from the Danube to Trebizond.]

[Footnote 66: Besides the many occasional hints from the poets, historians &c., of antiquity, we may consult the geographical descriptions of Colchos, by Strabo (l. xi. p. 760 - 765) and Pliny, (Hist. Natur. vi. 5, 19, &c.)] [Footnote 67: I shall quote, and have used, three modern descriptions of Mingrelia and the adjacent countries. 1. Of the Pere Archangeli Lamberti, (Relations de Thevenot, part i. p. 31 - 52, with a map,) who has all the knowledge and prejudices of a missionary. 2. Of Chardia, (Voyages en Perse, tom. i. p. 54, 68 - 168.) His observations are judicious and his own adventures in the country are still more instructive than his observations. 3. Of Peyssonel, (Observations sur les Peuples Barbares, p. 49, 50, 51, 58 62, 64, 65, 71, &c., and a more recent treatise, Sur le Commerce de la Mer Noire, tom. ii. p. 1 - 53.) He had long resided at Caffa, as consul of France; and his erudition is less valuable than his experience.]

[Footnote 68: Pliny, Hist. Natur. l. xxxiii. 15. The gold and silver mines of Colchos attracted the Argonauts, (Strab. l. i. p. 77.) The sagacious Chardin could find no gold in mines, rivers, or elsewhere. Yet a Mingrelian lost his hand and foot for showing some specimens at Constantinople of native gold] [Footnote 69: Herodot. l. ii. c. 104, 105, p. 150, 151. Diodor. Sicul. l. i. p. 33, edit. Wesseling. Dionys. Perieget. 689, and Eustath. ad loc. Schohast ad Apollonium Argonaut. l. iv. 282 - 291.]

[Footnote 70: Montesquieu, Esprit des Loix, l. xxi. c. 6. L'Isthme … couvero de villes et nations qui ne sont plus.]

[Footnote 71: Bougainville, Memoires de l'Academie des Inscriptions, tom. xxvi. p. 33, on the African voyage of Hanno and the commerce of antiquity.] But the riches of Colchos shine only through the darkness of conjecture or tradition; and its genuine history presents a uniform scene of rudeness and poverty. If one hundred and thirty languages were spoken in the market of Dioscurias, ^72 they were the imperfect idioms of so many savage tribes or families, sequestered from each other in the valleys of Mount Caucasus; and their separation, which diminished the importance, must have multiplied the number, of their rustic capitals. In the present state of Mingrelia, a village is an assemblage of huts within a wooden fence; the fortresses are seated in the depths of forests; the princely town of Cyta, or Cotatis, consists of two hundred houses, and a stone edifice appertains only to the magnificence of kings. Twelve ships from Constantinople, and about sixty barks, laden with the fruits of industry, annually cast anchor on the coast; and the list of Colchian exports is much increased, since the natives had only slaves and hides to offer in exchange for the corn and salt which they purchased from the subjects of Justinian. Not a vestige can be found of the art, the knowledge, or the navigation, of the ancient Colchians: few Greeks desired or dared to pursue the footsteps of the Argonauts; and even the marks of an Egyptian colony are lost on a nearer approach. The rite of circumcision is practised only by the Mahometans of the Euxine; and the curled hair and swarthy complexion of Africa no longer disfigure the most perfect of the human race. It is in the adjacent climates of Georgia, Mingrelia, and Circassia, that nature has placed, at least to our eyes, the model of beauty in the shape of the limbs, the color of the skin, the symmetry of the features, and the expression of the countenance. ^73 According to the destination of the two sexes, the men seemed formed for action, the women for love; and the perpetual supply of females from Mount Caucasus has purified the blood, and improved the breed, of the southern nations of Asia. The proper district of Mingrelia, a portion only of the ancient Colchos, has long sustained an exportation of twelve thousand slaves. The number of prisoners or criminals would be inadequate to the annual demand; but the common people are in a state of servitude to their lords; the exercise of fraud or rapine is unpunished in a lawless community; and the market is continually replenished by the abuse of civil and paternal authority. Such a trade, ^74 which reduces the human species to the level of cattle, may tend to encourage marriage and population, since the multitude of children enriches their sordid and inhuman parent. But this source of impure wealth must inevitably poison the national manners, obliterate the sense of honor and virtue, and almost extinguish the instincts of nature: the Christians of Georgia and Mingrelia are the most dissolute of mankind; and their children, who, in a tender age, are sold into foreign slavery, have already learned to imitate the rapine of the father and the prostitution of the mother. Yet, amidst the rudest ignorance, the untaught natives discover a singular dexterity both of mind and hand; and although the want of union and discipline exposes them to their more powerful neighbors, a bold and intrepid spirit has animated the Colchians of every age. In the host of Xerxes, they served on foot; and their arms were a dagger or a javelin, a wooden casque, and a buckler of raw hides. But in their own country the use of cavalry has more generally prevailed: the meanest of the peasants disdained to walk; the martial nobles are possessed, perhaps, of two hundred horses; and above five thousand are numbered in the train of the prince of Mingrelia. The Colchian government has been always a pure and hereditary kingdom; and the authority of the sovereign is only restrained by the turbulence of his subjects. Whenever they were obedient, he could lead a numerous army into the field; but some faith is requisite to believe, that the single tribe of the Suanians as composed of two hundred thousand soldiers, or that the population of Mingrelia now amounts to four millions of inhabitants. ^75 [Footnote 72: A Greek historian, Timosthenes, had affirmed, in eam ccc. nationes dissimilibus linguis descendere; and the modest Pliny is content to add, et postea a nostris cxxx. interpretibus negotia ibi gesta, (vi. 5) But the words nunc deserta cover a multitude of past fictions.] [Footnote 73: Buffon (Hist. Nat. tom. iii. p. 433 - 437) collects the unanimous suffrage of naturalists and travellers. If, in the time of Herodotus, they were, (and he had observed them with care,) this precious fact is an example of the influence of climate on a foreign colony.] [Footnote 74: The Mingrelian ambassador arrived at Constantinople with two hundred persons; but he ate (sold) them day by day, till his retinue was diminished to a secretary and two valets, (Tavernier, tom. i. p. 365.) To purchase his mistress, a Mingrelian gentleman sold twelve priests and his wife to the Turks, (Chardin, tom. i. p. 66.)]

[Footnote 75: Strabo, l. xi. p. 765. Lamberti, Relation de la Mingrelie. Yet we must avoid the contrary extreme of Chardin, who allows no more than 20,000 inhabitants to supply an annual exportation of 12,000 slaves; an absurdity unworthy of that judicious traveller.]

It was the boast of the Colchians, that their ancestors had checked the victories of Sesostris; and the defeat of the Egyptian is less incredible than his successful progress as far as the foot of Mount Caucasus. They sunk without any memorable effort, under the arms of Cyrus; followed in distant wars the standard of the great king, and presented him every fifth year with one hundred boys, and as many virgins, the fairest produce of the land. ^76 Yet he accepted this gift like the gold and ebony of India, the frankincense of the Arabs, or the negroes and ivory of Aethiopia: the Colchians were not subject to the dominion of a satrap, and they continued to enjoy the name as well as substance of national independence. ^77 After the fall of the Persian empire, Mithridates, king of Pontus, added Colchos to the wide circle of his dominions on the Euxine; and when the natives presumed to request that his son might reign over them, he bound the ambitious youth in chains of gold, and delegated a servant in his place. In pursuit of Mithridates, the Romans advanced to the banks of the Phasis, and their galleys ascended the river till they reached the camp of Pompey and his legions. ^78 But the senate, and afterwards the emperors, disdained to reduce that distant and useless conquest into the form of a province. The family of a Greek rhetorician was permitted to reign in Colchos and the adjacent kingdoms from the time of Mark Antony to that of Nero; and after the race of Polemo ^79 was extinct, the eastern Pontus, which preserved his name, extended no farther than the neighborhood of Trebizond. Beyond these limits the fortifications of Hyssus, of Apsarus, of the Phasis, of Dioscurias or Sebastopolis, and of Pityus, were guarded by sufficient detachments of horse and foot; and six princes of Colchos received their diadems from the lieutenants of Caesar. One of these lieutenants, the eloquent and philosophic Arrian, surveyed, and has described, the Euxine coast, under the reign of Hadrian. The garrison which he reviewed at the mouth of the Phasis consisted of four hundred chosen legionaries; the brick walls and towers, the double ditch, and the military engines on the rampart, rendered this place inaccessible to the Barbarians: but the new suburbs which had been built by the merchants and veterans, required, in the opinion of Arrian, some external defence. ^80 As the strength of the empire was gradually impaired, the Romans stationed on the Phasis were neither withdrawn nor expelled; and the tribe of the Lazi, ^81 whose posterity speak a foreign dialect, and inhabit the sea coast of Trebizond, imposed their name and dominion on the ancient kingdom of Colchos. Their independence was soon invaded by a formidable neighbor, who had acquired, by arms and treaties, the sovereignty of Iberia. The dependent king of Lazica received his sceptre at the hands of the Persian monarch, and the successors of Constantine acquiesced in this injurious claim, which was proudly urged as a right of immemorial prescription. In the beginning of the sixth century, their influence was restored by the introduction of Christianity, which the Mingrelians still profess with becoming zeal, without understanding the doctrines, or observing the precepts, of their religion. After the decease of his father, Zathus was exalted to the regal dignity by the favor of the great king; but the pious youth abhorred the ceremonies of the Magi, and sought, in the palace of Constantinople, an orthodox baptism, a noble wife, and the alliance of the emperor Justin. The king of Lazica was solemnly invested with the diadem, and his cloak and tunic of white silk, with a gold border, displayed, in rich embroidery, the figure of his new patron; who soothed the jealousy of the Persian court, and excused the revolt of Colchos, by the venerable names of hospitality and religion. The common interest of both empires imposed on the Colchians the duty of guarding the passes of Mount Caucasus, where a wall of sixty miles is now defended by the monthly service of the musketeers of Mingrelia. ^82

[Footnote 76: Herodot. l. iii. c. 97. See, in l. vii. c. 79, their arms and service in the expedition of Xerxes against Greece.]

[Footnote 77: Xenophon, who had encountered the Colchians in his retreat, (Anabasis, l. iv. p. 320, 343, 348, edit. Hutchinson; and Foster's Dissertation, p. liii. - lviii., in Spelman's English version, vol. ii.,) styled them. Before the conquest of Mithridates, they are named by Appian, (de Bell. Mithridatico, c. 15, tom. i. p. 661, of the last and best edition, by John Schweighaeuser. Lipsae, 1785 8 vols. largo octavo.)] [Footnote 78: The conquest of Colchos by Mithridates and Pompey is marked by Appian (de Bell. Mithridat.) and Plutarch, (in Vit. Pomp.)] [Footnote 79: We may trace the rise and fall of the family of Polemo, in Strabo, (l. xi. p. 755, l. xii. p. 867,) Dion Cassius, or Xiphilin, (p. 588, 593, 601, 719, 754, 915, 946, edit. Reimar,) Suetonius, (in Neron. c. 18, in Vespasian, c. 8,) Eutropius, (vii. 14,) Josephus, (Antiq. Judaic. l. xx. c. 7, p. 970, edit. Havercamp,) and Eusebius, (Chron. with Scaliger, Animadvers. p. 196.)]

[Footnote 80: In the time of Procopius, there were no Roman forts on the Phasis. Pityus and Sebastopolis were evacuated on the rumor of the Persians, (Goth. l. iv. c. 4;) but the latter was afterwards restored by Justinian, (de Edif. l. iv. c. 7.)]

[Footnote 81: In the time of Pliny, Arrian, and Ptolemy, the Lazi were a particular tribe on the northern skirts of Colchos, (Cellarius, Geograph. Antiq. tom. ii. p. 222.) In the age of Justinian, they spread, or at least reigned, over the whole country. At present, they have migrated along the coast towards Trebizond, and compose a rude sea-faring people, with a peculiar language, (Chardin, p. 149. Peyssonel p. 64.)]

[Footnote 82: John Malala, Chron. tom. ii. p. 134 - 137 Theophanes, p. 144. Hist. Miscell. l. xv. p. 103. The fact is authentic, but the date seems too recent. In speaking of their Persian alliance, the Lazi contemporaries of Justinian employ the most obsolete words, &c. Could they belong to a connection which had not been dissolved above twenty years?] But this honorable connection was soon corrupted by the avarice and ambition of the Romans. Degraded from the rank of allies, the Lazi were incessantly reminded, by words and actions, of their dependent state. At the distance of a day's journey beyond the Apsarus, they beheld the rising fortress of Petra, ^83 which commanded the maritime country to the south of the Phasis. Instead of being protected by the valor, Colchos was insulted by the licentiousness, of foreign mercenaries; the benefits of commerce were converted into base and vexatious monopoly; and Gubazes, the native prince, was reduced to a pageant of royalty, by the superior influence of the officers of Justinian. Disappointed in their expectations of Christian virtue, the indignant Lazi reposed some confidence in the justice of an unbeliever. After a private assurance that their ambassadors should not be delivered to the Romans, they publicly solicited the friendship and aid of Chosroes. The sagacious monarch instantly discerned the use and importance of Colchos; and meditated a plan of conquest, which was renewed at the end of a thousand years by Shah Abbas, the wisest and most powerful of his successors. ^84 His ambition was fired by the hope of launching a Persian navy from the Phasis, of commanding the trade and navigation of the Euxine Sea, of desolating the coast of Pontus and Bithynia, of distressing, perhaps of attacking, Constantinople, and of persuading the Barbarians of Europe to second his arms and counsels against the common enemy of mankind. Under the pretence of a Scythian war, he silently led his troops to the frontiers of Iberia; the Colchian guides were prepared to conduct them through the woods and along the precipices of Mount Caucasus; and a narrow path was laboriously formed into a safe and spacious highway, for the march of cavalry, and even of elephants. Gubazes laid his person and diadem at the feet of the king of Persia; his Colchians imitated the submission of their prince; and after the walls of Petra had been shaken, the Roman garrison prevented, by a capitulation, the impending fury of the last assault. But the Lazi soon discovered, that their impatience had urged them to choose an evil more intolerable than the calamities which they strove to escape. The monopoly of salt and corn was effectually removed by the loss of those valuable commodities. The authority of a Roman legislator, was succeeded by the pride of an Oriental despot, who beheld, with equal disdain, the slaves whom he had exalted, and the kings whom he had humbled before the footstool of his throne. The adoration of fire was introduced into Colchos by the zeal of the Magi: their intolerant spirit provoked the fervor of a Christian people; and the prejudice of nature or education was wounded by the impious practice of exposing the dead bodies of their parents, on the summit of a lofty tower, to the crows and vultures of the air. ^85 Conscious of the increasing hatred, which retarded the execution of his great designs, the just Nashirvan had secretly given orders to assassinate the king of the Lazi, to transplant the people into some distant land, and to fix a faithful and warlike colony on the banks of the Phasis. The watchful jealousy of the Colchians foresaw and averted the approaching ruin. Their repentance was accepted at Constantinople by the prudence, rather than clemency, of Justinian; and he commanded Dagisteus, with seven thousand Romans, and one thousand of the Zani, ^* to expel the Persians from the coast of the Euxine. [Footnote 83: The sole vestige of Petra subsists in the writings of Procopius and Agathias. Most of the towns and castles of Lazica may be found by comparing their names and position with the map of Mingrelia, in Lamberti.] [Footnote 84: See the amusing letters of Pietro della Valle, the Roman traveler, (Viaggi, tom. ii. 207, 209, 213, 215, 266, 286, 300, tom. iii. p. 54, 127.) In the years 1618, 1619, and 1620, he conversed with Shah Abbas, and strongly encouraged a design which might have united Persia and Europe against their common enemy the Turk.]

[Footnote 85: See Herodotus, (l. i. c. 140, p. 69,) who speaks with diffidence, Larcher, (tom. i. p. 399 - 401, Notes sur Herodote,) Procopius, (Persic. l. i. c. 11,) and Agathias, (l. ii. p. 61, 62.) This practice, agreeable to the Zendavesta, (Hyde, de Relig. Pers. c. 34, p. 414 - 421,) demonstrates that the burial of the Persian kings, (Xenophon, Cyropaed. l. viii. p. 658,) is a Greek fiction, and that their tombs could be no more than cenotaphs.]

[Footnote *: These seem the same people called Suanians, p. 328. - M.] The siege of Petra, which the Roman general, with the aid of the Lazi, immediately undertook, is one of the most remarkable actions of the age. The city was seated on a craggy rock, which hung over the sea, and communicated by a steep and narrow path with the land. Since the approach was difficult, the attack might be deemed impossible: the Persian conqueror had strengthened the fortifications of Justinian; and the places least inaccessible were covered by additional bulwarks. In this important fortress, the vigilance of Chosroes had deposited a magazine of offensive and defensive arms, sufficient for five times the number, not only of the garrison, but of the besiegers themselves. The stock of flour and salt provisions was adequate to the consumption of five years; the want of wine was supplied by vinegar; and of grain from whence a strong liquor was extracted, and a triple aqueduct eluded the diligence, and even the suspicions, of the enemy. But the firmest defence of Petra was placed in the valor of fifteen hundred Persians, who resisted the assaults of the Romans, whilst, in a softer vein of earth, a mine was secretly perforated. The wall, supported by slender and temporary props, hung tottering in the air; but Dagisteus delayed the attack till he had secured a specific recompense; and the town was relieved before the return of his messenger from Constantinople. The Persian garrison was reduced to four hundred men, of whom no more than fifty were exempt from sickness or wounds; yet such had been their inflexible perseverance, that they concealed their losses from the enemy, by enduring, without a murmur, the sight and putrefying stench of the dead bodies of their eleven hundred companions. After their deliverance, the breaches were hastily stopped with sand-bags; the mine was replenished with earth; a new wall was erected on a frame of substantial timber; and a fresh garrison of three thousand men was stationed at Petra to sustain the labors of a second siege. The operations, both of the attack and defence, were conducted with skilful obstinacy; and each party derived useful lessons from the experience of their past faults. A battering-ram was invented, of light construction and powerful effect: it was transported and worked by the hands of forty soldiers; and as the stones were loosened by its repeated strokes, they were torn with long iron hooks from the wall. From those walls, a shower of darts was incessantly poured on the heads of the assailants; but they were most dangerously annoyed by a fiery composition of sulphur and bitumen, which in Colchos might with some propriety be named the oil of Medea. Of six thousand Romans who mounted the scaling-ladders, their general Bessas was the first, a gallant veteran of seventy years of age: the courage of their leader, his fall, and extreme danger, animated the irresistible effort of his troops; and their prevailing numbers oppressed the strength, without subduing the spirit, of the Persian garrison. The fate of these valiant men deserves to be more distinctly noticed. Seven hundred had perished in the siege, two thousand three hundred survived to defend the breach. One thousand and seventy were destroyed with fire and sword in the last assault; and if seven hundred and thirty were made prisoners, only eighteen among them were found without the marks of honorable wounds. The remaining five hundred escaped into the citadel, which they maintained without any hopes of relief, rejecting the fairest terms of capitulation and service, till they were lost in the flames. They died in obedience to the commands of their prince; and such examples of loyalty and valor might excite their countrymen to deeds of equal despair and more prosperous event. The instant demolition of the works of Petra confessed the astonishment and apprehension of the conqueror. A Spartan would have praised and pitied the virtue of these heroic slaves; but the tedious warfare and alternate success of the Roman and Persian arms cannot detain the attention of posterity at the foot of Mount Caucasus. The advantages obtained by the troops of Justinian were more frequent and splendid; but the forces of the great king were continually supplied, till they amounted to eight elephants and seventy thousand men, including twelve thousand Scythian allies, and above three thousand Dilemites, who descended by their free choice from the hills of Hyrcania, and were equally formidable in close or in distant combat. The siege of Archaeopolis, a name imposed or corrupted by the Greeks, was raised with some loss and precipitation; but the Persians occupied the passes of Iberia: Colchos was enslaved by their forts and garrisons; they devoured the scanty sustenance of the people; and the prince of the Lazi fled into the mountains. In the Roman camp, faith and discipline were unknown; and the independent leaders, who were invested with equal power, disputed with each other the preeminence of vice and corruption. The Persians followed, without a murmur, the commands of a single chief, who implicitly obeyed the instructions of their supreme lord. Their general was distinguished among the heroes of the East by his wisdom in council, and his valor in the field. The advanced age of Mermeroes, and the lameness of both his feet, could not diminish the activity of his mind, or even of his body; and, whilst he was carried in a litter in the front of battle, he inspired terror to the enemy, and a just confidence to the troops, who, under his banners, were always successful. After his death, the command devolved to Nacoragan, a proud satrap, who, in a conference with the Imperial chiefs, had presumed to declare that he disposed of victory as absolutely as of the ring on his finger. Such presumption was the natural cause and forerunner of a shameful defeat. The Romans had been gradually repulsed to the edge of the sea-shore; and their last camp, on the ruins of the Grecian colony of Phasis, was defended on all sides by strong intrenchments, the river, the Euxine, and a fleet of galleys. Despair united their counsels and invigorated their arms: they withstood the assault of the Persians and the flight of Nacoragan preceded or followed the slaughter of ten thousand of his bravest soldiers. He escaped from the Romans to fall into the hands of an unforgiving master who severely chastised the error of his own choice: the unfortunate general was flayed alive, and his skin, stuffed into the human form, was exposed on a mountain; a dreadful warning to those who might hereafter be intrusted with the fame and fortune of Persia. ^86 Yet the prudence of Chosroes insensibly relinquished the prosecution of the Colchian war, in the just persuasion, that it is impossible to reduce, or, at least, to hold a distant country against the wishes and efforts of its inhabitants. The fidelity of Gubazes sustained the most rigorous trials. He patiently endured the hardships of a savage life, and rejected with disdain, the specious temptations of the Persian court. ^* The king of the Lazi had been educated in the Christian religion; his mother was the daughter of a senator; during his youth he had served ten years a silentiary of the Byzantine palace, ^87 and the arrears of an unpaid salary were a motive of attachment as well as of complaint. But the long continuance of his sufferings extorted from him a naked representation of the truth; and truth was an unpardonable libel on the lieutenants of Justinian, who, amidst the delays of a ruinous war, had spared his enemies and trampled on his allies. Their malicious information persuaded the emperor that his faithless vassal already meditated a second defection: an order was surprised to send him prisoner to Constantinople; a treacherous clause was inserted, that he might be lawfully killed in case of resistance; and Gubazes, without arms, or suspicion of danger, was stabbed in the security of a friendly interview. In the first moments of rage and despair, the Colchians would have sacrificed their country and religion to the gratification of revenge. But the authority and eloquence of the wiser few obtained a salutary pause: the victory of the Phasis restored the terror of the Roman arms, and the emperor was solicitous to absolve his own name from the imputation of so foul a murder. A judge of senatorial rank was commissioned to inquire into the conduct and death of the king of the Lazi. He ascended a stately tribunal, encompassed by the ministers of justice and punishment: in the presence of both nations, this extraordinary cause was pleaded, according to the forms of civil jurisprudence, and some satisfaction was granted to an injured people, by the sentence and execution of the meaner criminals. ^88 [Footnote 86: The punishment of flaying alive could not be introduced into Persia by Sapor, (Brisson, de Regn. Pers. l. ii. p. 578,) nor could it be copied from the foolish tale of Marsyas, the Phrygian piper, most foolishly quoted as a precedent by Agathias, (l. iv. p. 132, 133.)]

[Footnote *: According to Agathias, the death of Gubazos preceded the defeat of Nacoragan. The trial took place after the battle. - M.] [Footnote 87: In the palace of Constantinople there were thirty silentiaries, who were styled hastati, ante fores cubiculi, an honorable title which conferred the rank, without imposing the duties, of a senator, (Cod. Theodos. l. vi. tit. 23. Gothofred. Comment. tom. ii. p. 129.)]

[Footnote 88: On these judicial orations, Agathias (l. iii. p. 81 - 89, l. iv. p. 108 - 119) lavishes eighteen or twenty pages of false and florid rhetoric. His ignorance or carelessness overlooks the strongest argument against the king of Lazica - his former revolt.

Note: The Orations in the third book of Agathias are not judicial, nor delivered before the Roman tribunal: it is a deliberative debate among the Colchians on the expediency of adhering to the Roman, or embracing the Persian alliance. - M.]]

In peace, the king of Persia continually sought the pretences of a rupture: but no sooner had he taken up arms, than he expressed his desire of a safe and honorable treaty. During the fiercest hostilities, the two monarchs entertained a deceitful negotiation; and such was the superiority of Chosroes, that whilst he treated the Roman ministers with insolence and contempt, he obtained the most unprecedented honors for his own ambassadors at the Imperial court. The successor of Cyrus assumed the majesty of the Eastern sun, and graciously permitted his younger brother Justinian to reign over the West, with the pale and reflected splendor of the moon. This gigantic style was supported by the pomp and eloquence of Isdigune, one of the royal chamberlains. His wife and daughters, with a train of eunuchs and camels, attended the march of the ambassador: two satraps with golden diadems were numbered among his followers: he was guarded by five hundred horse, the most valiant of the Persians; and the Roman governor of Dara wisely refused to admit more than twenty of this martial and hostile caravan. When Isdigune had saluted the emperor, and delivered his presents, he passed ten months at Constantinople without discussing any serious affairs. Instead of being confined to his palace, and receiving food and water from the hands of his keepers, the Persian ambassador, without spies or guards, was allowed to visit the capital; and the freedom of conversation and trade enjoyed by his domestics, offended the prejudices of an age which rigorously practised the law of nations, without confidence or courtesy. ^89 By an unexampled indulgence, his interpreter, a servant below the notice of a Roman magistrate, was seated, at the table of Justinian, by the side of his master: and one thousand pounds of gold might be assigned for the expense of his journey and entertainment. Yet the repeated labors of Isdigune could procure only a partial and imperfect truce, which was always purchased with the treasures, and renewed at the solicitation, of the Byzantine court Many years of fruitless desolation elapsed before Justinian and Chosroes were compelled, by mutual lassitude, to consult the repose of their declining age. At a conference held on the frontier, each party, without expecting to gain credit, displayed the power, the justice, and the pacific intentions, of their respective sovereigns; but necessity and interest dictated the treaty of peace, which was concluded for a term of fifty years, diligently composed in the Greek and Persian languages, and attested by the seals of twelve interpreters. The liberty of commerce and religion was fixed and defined; the allies of the emperor and the great king were included in the same benefits and obligations; and the most scrupulous precautions were provided to prevent or determine the accidental disputes that might arise on the confines of two hostile nations. After twenty years of destructive though feeble war, the limits still remained without alteration; and Chosroes was persuaded to renounce his dangerous claim to the possession or sovereignty of Colchos and its dependent states. Rich in the accumulated treasures of the East, he extorted from the Romans an annual payment of thirty thousand pieces of gold; and the smallness of the sum revealed the disgrace of a tribute in its naked deformity. In a previous debate, the chariot of Sesostris, and the wheel of fortune, were applied by one of the ministers of Justinian, who observed that the reduction of Antioch, and some Syrian cities, had elevated beyond measure the vain and ambitious spirit of the Barbarian. “You are mistaken,” replied the modest Persian: “the king of kings, the lord of mankind, looks down with contempt on such petty acquisitions; and of the ten nations, vanquished by his invincible arms, he esteems the Romans as the least formidable.” ^90 According to the Orientals, the empire of Nushirvan extended from Ferganah, in Transoxiana, to Yemen or Arabia Faelix. He subdued the rebels of Hyrcania, reduced the provinces of Cabul and Zablestan on the banks of the Indus, broke the power of the Euthalites, terminated by an honorable treaty the Turkish war, and admitted the daughter of the great khan into the number of his lawful wives. Victorious and respected among the princes of Asia, he gave audience, in his palace of Madain, or Ctesiphon, to the ambassadors of the world. Their gifts or tributes, arms, rich garments, gems, slaves or aromatics, were humbly presented at the foot of his throne; and he condescended to accept from the king of India ten quintals of the wood of aloes, a maid seven cubits in height, and a carpet softer than silk, the skin, as it was reported, of an extraordinary serpent. ^91

[Footnote 89: Procopius represents the practice of the Gothic court of Ravenna (Goth. l. i. c. 7;) and foreign ambassadors have been treated with the same jealousy and rigor in Turkey, (Busbequius, epist. iii. p. 149, 242, &c.,) Russia, (Voyage D'Olearius,) and China, (Narrative of A. de Lange, in Bell's Travels, vol. ii. p. 189 - 311.)]

[Footnote 90: The negotiations and treaties between Justinian and Chosroes are copiously explained by Procopius, (Persie, l. ii. c. 10, 13, 26, 27, 28. Gothic. l. ii. c. 11, 15,) Agathias, (l. iv. p. 141, 142,) and Menander, (in Excerpt. Legat. p. 132 - 147.) Consult Barbeyrac, Hist. des Anciens Traites, tom. ii. p. 154, 181 - 184, 193 - 200.]

[Footnote 91: D'Herbelot, Bibliot. Orient. p. 680, 681, 294, 295.] Justinian had been reproached for his alliance with the Aethiopians, as if he attempted to introduce a people of savage negroes into the system of civilized society. But the friends of the Roman empire, the Axumites, or Abyssinians, may be always distinguished from the original natives of Africa. ^92 The hand of nature has flattened the noses of the negroes, covered their heads with shaggy wool, and tinged their skin with inherent and indelible blackness. But the olive complexion of the Abyssinians, their hair, shape, and features, distinctly mark them as a colony of Arabs; and this descent is confirmed by the resemblance of language and manners the report of an ancient emigration, and the narrow interval between the shores of the Red Sea. Christianity had raised that nation above the level of African barbarism: ^93 their intercourse with Egypt, and the successors of Constantine, ^94 had communicated the rudiments of the arts and sciences; their vessels traded to the Isle of Ceylon, ^95 and seven kingdoms obeyed the Negus or supreme prince of Abyssinia. The independence of the Homerites, ^! who reigned in the rich and happy Arabia, was first violated by an Aethiopian conqueror: he drew his hereditary claim from the queen of Sheba, ^96 and his ambition was sanctified by religious zeal. The Jews, powerful and active in exile, had seduced the mind of Dunaan, prince of the Homerites. They urged him to retaliate the persecution inflicted by the Imperial laws on their unfortunate brethren: some Roman merchants were injuriously treated; and several Christians of Negra ^97 were honored with the crown of martyrdom. ^98 The churches of Arabia implored the protection of the Abyssinian monarch. The Negus passed the Red Sea with a fleet and army, deprived the Jewish proselyte of his kingdom and life, and extinguished a race of princes, who had ruled above two thousand years the sequestered region of myrrh and frankincense. The conqueror immediately announced the victory of the gospel, requested an orthodox patriarch, and so warmly professed his friendship to the Roman empire, that Justinian was flattered by the hope of diverting the silk trade through the channel of Abyssinia, and of exciting the forces of Arabia against the Persian king. Nonnosus, descended from a family of ambassadors, was named by the emperor to execute this important commission. He wisely declined the shorter, but more dangerous, road, through the sandy deserts of Nubia; ascended the Nile, embarked on the Red Sea, and safely landed at the African port of Adulis. From Adulis to the royal city of Axume is no more than fifty leagues, in a direct line; but the winding passes of the mountains detained the ambassador fifteen days; and as he traversed the forests, he saw, and vaguely computed, about five thousand wild elephants. The capital, according to his report, was large and populous; and the village of Axume is still conspicuous by the regal coronations, by the ruins of a Christian temple, and by sixteen or seventeen obelisks inscribed with Grecian characters. ^99 But the Negus ^!! gave audience in the open field, seated on a lofty chariot, which was drawn by four elephants, superbly caparisoned, and surrounded by his nobles and musicians. He was clad in a linen garment and cap, holding in his hand two javelins and a light shield; and, although his nakedness was imperfectly covered, he displayed the Barbaric pomp of gold chains, collars, and bracelets, richly adorned with pearls and precious stones. The ambassador of Justinian knelt; the Negus raised him from the ground, embraced Nonnosus, kissed the seal, perused the letter, accepted the Roman alliance, and, brandishing his weapons, denounced implacable war against the worshipers of fire. But the proposal of the silk trade was eluded; and notwithstanding the assurances, and perhaps the wishes, of the Abyssinians, these hostile menaces evaporated without effect. The Homerites were unwilling to abandon their aromatic groves, to explore a sandy desert, and to encounter, after all their fatigues, a formidable nation from whom they had never received any personal injuries. Instead of enlarging his conquests, the king of Aethiopia was incapable of defending his possessions. Abrahah, ^!!! the slave of a Roman merchant of Adulis, assumed the sceptre of the Homerites,; the troops of Africa were seduced by the luxury of the climate; and Justinian solicited the friendship of the usurper, who honored with a slight tribute the supremacy of his prince. After a long series of prosperity, the power of Abrahah was overthrown before the gates of Mecca; and his children were despoiled by the Persian conqueror; and the Aethiopians were finally expelled from the continent of Asia. This narrative of obscure and remote events is not foreign to the decline and fall of the Roman empire. If a Christian power had been maintained in Arabia, Mahomet must have been crushed in his cradle, and Abyssinia would have prevented a revolution which has changed the civil and religious state of the world. ^100 ^*

[Footnote 92: See Buffon, Hist. Naturelle, tom. iii. p. 449. This Arab cast of features and complexion, which has continued 3400 years (Ludolpb. Hist. et Comment. Aethiopic. l. i. c. 4) in the colony of Abyssinia, will justify the suspicion, that race, as well as climate, must have contributed to form the negroes of the adjacent and similar regions.

Note: Mr. Salt (Travels, vol. ii. p. 458) considers them to be distinct from the Arabs - “in feature, color, habit, and manners.” - M.] [Footnote 93: The Portuguese missionaries, Alvarez, (Ramusio, tom. i. fol. 204, rect. 274, vers.) Bermudez, (Purchas's Pilgrims, vol. ii. l. v. c. 7, p. 1149 - 1188,) Lobo, (Relation, &c., par M. le Grand, with xv. Dissertations, Paris, 1728,) and Tellez (Relations de Thevenot, part iv.) could only relate of modern Abyssinia what they had seen or invented. The erudition of Ludolphus, (Hist. Aethiopica, Francofurt, 1681. Commentarius, 1691. Appendix, 1694,) in twenty-five languages, could add little concerning its ancient history. Yet the fame of Caled, or Ellisthaeus, the conqueror of Yemen, is celebrated in national songs and legends.]

[Footnote 94: The negotiations of Justinian with the Axumites, or Aethiopians, are recorded by Procopius (Persic. l. i. c. 19, 20) and John Malala, tom. ii. p. 163 - 165, 193 - 196.) The historian of Antioch quotes the original narrative of the ambassador Nonnosus, of which Photius (Bibliot. Cod. iii.) has preserved a curious extract.]

[Footnote 95: The trade of the Axumites to the coast of India and Africa, and the Isle of Ceylon, is curiously represented by Cosmas Indicopleustes, (Topograph. Christian. l. ii. p. 132, 138, 139, 140, l. xi. p. 338, 339.)] [Footnote !: It appears by the important inscription discovered by Mr. Salt at Axoum, and from a law of Constantius, (16th Jan. 356, inserted in the Theodosian Code, l. 12, c. 12,) that in the middle of the fourth century of our era the princes of the Axumites joined to their titles that of king of the Homerites. The conquests which they made over the Arabs in the sixth century were only a restoration of the ancient order of things. St. Martin vol. viii. p. 46 - M.]

[Footnote 96: Ludolph. Hist. et Comment. Aethiop. l. ii. c. 3.] [Footnote 97: The city of Negra, or Nag'ran, in Yemen, is surrounded with palm-trees, and stands in the high road between Saana, the capital, and Mecca; from the former ten, from the latter twenty days' journey of a caravan of camels, (Abulfeda, Descript. Arabiae, p. 52.)]

[Footnote 98: The martyrdom of St. Arethas, prince of Negra, and his three hundred and forty companions, is embellished in the legends of Metaphrastes and Nicephorus Callistus, copied by Baronius, (A. D 522, No. 22 - 66, A.D. 523, No. 16 - 29,) and refuted with obscure diligence, by Basnage, (Hist. des Juifs, tom. viii. l. xii. c. ii. p. 333 - 348,) who investigates the state of the Jews in Arabia and Aethiopia.

Note: According to Johannsen, (Hist. Yemanae, Praef. p. 89,) Dunaan (Ds Nowas) massacred 20,000 Christians, and threw them into a pit, where they were burned. They are called in the Koran the companions of the pit (socii foveae.) - M.]

[Footnote 99: Alvarez (in Ramusio, tom. i. fol. 219, vers. 221, vers.) saw the flourishing state of Axume in the year 1520 - luogomolto buono e grande. It was ruined in the same century by the Turkish invasion. No more than 100 houses remain; but the memory of its past greatness is preserved by the regal coronation, (Ludolph. Hist. et Comment. l. ii. c. 11.)

Note: Lord Valentia's and Mr. Salt's Travels give a high notion of the ruins of Axum. - M.]

[Footnote !!: The Negus is differently called Elesbaan, Elesboas, Elisthaeus, probably the same name, or rather appellation. See St. Martin, vol. viii. p. 49. - M.]

[Footnote !!!: According to the Arabian authorities, (Johannsen, Hist. Yemanae, p. 94, Bonn, 1828,) Abrahah was an Abyssinian, the rival of Ariathus, the brother of the Abyssinian king: he surprised and slew Ariathus, and by his craft appeased the resentment of Nadjash, the Abyssinian king. Abrahah was a Christian; he built a magnificent church at Sana, and dissuaded his subjects from their accustomed pilgrimages to Mecca. The church was defiled, it was supposed, by the Koreishites, and Abrahah took up arms to revenge himself on the temple at Mecca. He was repelled by miracle: his elephant would not advance, but knelt down before the sacred place; Abrahah fled, discomfited and mortally wounded, to Sana - M.]

[Footnote 100: The revolutions of Yemen in the sixth century must be collected from Procopius, (Persic. l. i. c. 19, 20,) Theophanes Byzant., (apud Phot. cod. lxiii. p. 80,) St. Theophanes, (in Chronograph. p. 144, 145, 188, 189, 206, 207, who is full of strange blunders,) Pocock, (Specimen Hist. Arab. p. 62, 65,) D'Herbelot, (Bibliot. Orientale, p. 12, 477,) and Sale's Preliminary Discourse and Koran, (c. 105.) The revolt of Abrahah is mentioned by Procopius; and his fall, though clouded with miracles, is an historical fact. Note: To the authors who have illustrated the obscure history of the Jewish and Abyssinian kingdoms in Homeritis may be added Schultens, Hist. Joctanidarum; Walch, Historia rerum in Homerite gestarum, in the 4th vol. of the Gottingen Transactions; Salt's Travels, vol. ii. p. 446, &c.: Sylvestre de Sacy, vol. i. Acad. des Inscrip. Jost, Geschichte der Israeliter; Johannsen, Hist. Yemanae; St. Martin's notes to Le Beau, t. vii p. 42. - M.] [Footnote *: A period of sixty-seven years is assigned by most of the Arabian authorities to the Abyssinian kingdoms in Homeritis. - M.]

Rebellions Of Africa. - Restoration Of The Gothic Kingdom By Totila. - Loss And Recovery Of Rome. - Final Conquest Of Italy By Narses. - Extinction Of The Ostrogoths. - Defeat Of The Franks And Alemanni. - Last Victory, Disgrace, And Death Of Belisarius. - Death And Character Of Justinian. - Comet, Earthquakes, And Plague.

The review of the nations from the Danube to the Nile has exposed, on every side, the weakness of the Romans; and our wonder is reasonably excited that they should presume to enlarge an empire whose ancient limits they were incapable of defending. But the wars, the conquests, and the triumphs of Justinian, are the feeble and pernicious efforts of old age, which exhaust the remains of strength, and accelerate the decay of the powers of life. He exulted in the glorious act of restoring Africa and Italy to the republic; but the calamities which followed the departure of Belisarius betrayed the impotence of the conqueror, and accomplished the ruin of those unfortunate countries.

From his new acquisitions, Justinian expected that his avarice, as well as pride, should be richly gratified. A rapacious minister of the finances closely pursued the footsteps of Belisarius; and as the old registers of tribute had been burnt by the Vandals, he indulged his fancy in a liberal calculation and arbitrary assessment of the wealth of Africa. ^1 The increase of taxes, which were drawn away by a distant sovereign, and a general resumption of the patrimony or crown lands, soon dispelled the intoxication of the public joy: but the emperor was insensible to the modest complaints of the people, till he was awakened and alarmed by the clamors of military discontent. Many of the Roman soldiers had married the widows and daughters of the Vandals. As their own, by the double right of conquest and inheritance, they claimed the estates which Genseric had assigned to his victorious troops. They heard with disdain the cold and selfish representations of their officers, that the liberality of Justinian had raised them from a savage or servile condition; that they were already enriched by the spoils of Africa, the treasure, the slaves, and the movables of the vanquished Barbarians; and that the ancient and lawful patrimony of the emperors would be applied only to the support of that government on which their own safety and reward must ultimately depend. The mutiny was secretly inflamed by a thousand soldiers, for the most part Heruli, who had imbibed the doctrines, and were instigated by the clergy, of the Arian sect; and the cause of perjury and rebellion was sanctified by the dispensing powers of fanaticism. The Arians deplored the ruin of their church, triumphant above a century in Africa; and they were justly provoked by the laws of the conqueror, which interdicted the baptism of their children, and the exercise of all religious worship. Of the Vandals chosen by Belisarius, the far greater part, in the honors of the Eastern service, forgot their country and religion. But a generous band of four hundred obliged the mariners, when they were in sight of the Isle of Lesbos, to alter their course: they touched on Peloponnesus, ran ashore on a desert coast of Africa, and boldly erected, on Mount Aurasius, the standard of independence and revolt. While the troops of the provinces disclaimed the commands of their superiors, a conspiracy was formed at Carthage against the life of Solomon, who filled with honor the place of Belisarius; and the Arians had piously resolved to sacrifice the tyrant at the foot of the altar, during the awful mysteries of the festival of Easter. Fear or remorse restrained the daggers of the assassins, but the patience of Solomon emboldened their discontent; and, at the end of ten days, a furious sedition was kindled in the Circus, which desolated Africa above ten years. The pillage of the city, and the indiscriminate slaughter of its inhabitants, were suspended only by darkness, sleep, and intoxication: the governor, with seven companions, among whom was the historian Procopius, escaped to Sicily: two thirds of the army were involved in the guilt of treason; and eight thousand insurgents, assembling in the field of Bulla, elected Stoza for their chief, a private soldier, who possessed in a superior degree the virtues of a rebel. Under the mask of freedom, his eloquence could lead, or at least impel, the passions of his equals. He raised himself to a level with Belisarius, and the nephew of the emperor, by daring to encounter them in the field; and the victorious generals were compelled to acknowledge that Stoza deserved a purer cause, and a more legitimate command. Vanquished in battle, he dexterously employed the arts of negotiation; a Roman army was seduced from their allegiance, and the chiefs who had trusted to his faithless promise were murdered by his order in a church of Numidia. When every resource, either of force or perfidy, was exhausted, Stoza, with some desperate Vandals, retired to the wilds of Mauritania, obtained the daughter of a Barbarian prince, and eluded the pursuit of his enemies, by the report of his death. The personal weight of Belisarius, the rank, the spirit, and the temper, of Germanus, the emperor's nephew, and the vigor and success of the second administration of the eunuch Solomon, restored the modesty of the camp, and maintained for a while the tranquillity of Africa. But the vices of the Byzantine court were felt in that distant province; the troops complained that they were neither paid nor relieved, and as soon as the public disorders were sufficiently mature, Stoza was again alive, in arms, and at the gates of Carthage. He fell in a single combat, but he smiled in the agonies of death, when he was informed that his own javelin had reached the heart of his antagonist. ^* The example of Stoza, and the assurance that a fortunate soldier had been the first king, encouraged the ambition of Gontharis, and he promised, by a private treaty, to divide Africa with the Moors, if, with their dangerous aid, he should ascend the throne of Carthage. The feeble Areobindus, unskilled in the affairs of peace and war, was raised, by his marriage with the niece of Justinian, to the office of exarch. He was suddenly oppressed by a sedition of the guards, and his abject supplications, which provoked the contempt, could not move the pity, of the inexorable tyrant. After a reign of thirty days, Gontharis himself was stabbed at a banquet by the hand of Artaban; ^•• and it is singular enough, that an Armenian prince, of the royal family of Arsaces, should reestablish at Carthage the authority of the Roman empire. In the conspiracy which unsheathed the dagger of Brutus against the life of Caesar, every circumstance is curious and important to the eyes of posterity; but the guilt or merit of these loyal or rebellious assassins could interest only the contemporaries of Procopius, who, by their hopes and fears, their friendship or resentment, were personally engaged in the revolutions of Africa. ^2

[Footnote 1: For the troubles of Africa, I neither have nor desire another guide than Procopius, whose eye contemplated the image, and whose ear collected the reports, of the memorable events of his own times. In the second book of the Vandalic war he relates the revolt of Stoza, (c. 14 - 24,) the return of Belisarius, (c. 15,) the victory of Germanus, (c. 16, 17, 18,) the second administration of Solomon, (c. 19, 20, 21,) the government of Sergius, (c. 22, 23,) of Areobindus, (c. 24,) the tyranny and death of Gontharis, (c. 25, 26, 27, 28;) nor can I discern any symptoms of flattery or malevolence in his various portraits.]

[Footnote *: Corippus gives a different account of the death of Stoza; he was transfixed by an arrow from the hand of John, (not the hero of his poem) who broke desperately through the victorious troops of the enemy. Stoza repented, says the poet, of his treasonous rebellion, and anticipated - another Cataline - eternal torments as his punishment.

Reddam, improba, poenas Quas merui. Furiis socius Catilina cruentis Exagitatus adest. Video jam Tartara, fundo Flammarumque globos, et clara incendia volvi.

Johannidos, book iv. line 211.

All the other authorities confirm Gibbon's account of the death of John by the hand of Stoza. This poem of Corippus, unknown to Gibbon, was first published by Mazzuchelli during the present century, and is reprinted in the new edition of the Byzantine writers. - M]

[Footnote **: This murder was prompted to the Armenian (according to Corippus) by Athanasius, (then praefect of Africa.)

Hunc placidus cana gravitate coegit Inumitera mactare virum. - Corripus, vol. iv. p. 237 - M.] [Footnote 2: Yet I must not refuse him the merit of painting, in lively colors, the murder of Gontharis. One of the assassins uttered a sentiment not unworthy of a Roman patriot: “If I fail,” said Artasires, “in the first stroke, kill me on the spot, lest the rack should extort a discovery of my accomplices.”]

That country was rapidly sinking into the state of barbarism from whence it had been raised by the Phoenician colonies and Roman laws; and every step of intestine discord was marked by some deplorable victory of savage man over civilized society. The Moors, ^3 though ignorant of justice, were impatient of oppression: their vagrant life and boundless wilderness disappointed the arms, and eluded the chains, of a conqueror; and experience had shown, that neither oaths nor obligations could secure the fidelity of their attachment. The victory of Mount Auras had awed them into momentary submission; but if they respected the character of Solomon, they hated and despised the pride and luxury of his two nephews, Cyrus and Sergius, on whom their uncle had imprudently bestowed the provincial governments of Tripoli and Pentapolis. A Moorish tribe encamped under the walls of Leptis, to renew their alliance, and receive from the governor the customary gifts. Fourscore of their deputies were introduced as friends into the city; but on the dark suspicion of a conspiracy, they were massacred at the table of Sergius, and the clamor of arms and revenge was reechoed through the valleys of Mount Atlas from both the Syrtes to the Atlantic Ocean. A personal injury, the unjust execution or murder of his brother, rendered Antalas the enemy of the Romans. The defeat of the Vandals had formerly signalized his valor; the rudiments of justice and prudence were still more conspicuous in a Moor; and while he laid Adrumetum in ashes, he calmly admonished the emperor that the peace of Africa might be secured by the recall of Solomon and his unworthy nephews. The exarch led forth his troops from Carthage: but, at the distance of six days' journey, in the neighborhood of Tebeste, ^4 he was astonished by the superior numbers and fierce aspect of the Barbarians. He proposed a treaty; solicited a reconciliation; and offered to bind himself by the most solemn oaths. “By what oaths can he bind himself?” interrupted the indignant Moors. “Will he swear by the Gospels, the divine books of the Christians? It was on those books that the faith of his nephew Sergius was pledged to eighty of our innocent and unfortunate brethren. Before we trust them a second time, let us try their efficacy in the chastisement of perjury and the vindication of their own honor.” Their honor was vindicated in the field of Tebeste, by the death of Solomon, and the total loss of his army. ^* The arrival of fresh troops and more skilful commanders soon checked the insolence of the Moors: seventeen of their princes were slain in the same battle; and the doubtful and transient submission of their tribes was celebrated with lavish applause by the people of Constantinople. Successive inroads had reduced the province of Africa to one third of the measure of Italy; yet the Roman emperors continued to reign above a century over Carthage and the fruitful coast of the Mediterranean. But the victories and the losses of Justinian were alike pernicious to mankind; and such was the desolation of Africa, that in many parts a stranger might wander whole days without meeting the face either of a friend or an enemy. The nation of the Vandals had disappeared: they once amounted to a hundred and sixty thousand warriors, without including the children, the women, or the slaves. Their numbers were infinitely surpassed by the number of the Moorish families extirpated in a relentless war; and the same destruction was retaliated on the Romans and their allies, who perished by the climate, their mutual quarrels, and the rage of the Barbarians. When Procopius first landed, he admired the populousness of the cities and country, strenuously exercised in the labors of commerce and agriculture. In less than twenty years, that busy scene was converted into a silent solitude; the wealthy citizens escaped to Sicily and Constantinople; and the secret historian has confidently affirmed, that five millions of Africans were consumed by the wars and government of the emperor Justinian. ^5 [Footnote 3: The Moorish wars are occasionally introduced into the narrative of Procopius, (Vandal. l. ii. c. 19 - 23, 25, 27, 28. Gothic. l. iv. c. 17;) and Theophanes adds some prosperous and adverse events in the last years of Justinian.]

[Footnote 4: Now Tibesh, in the kingdom of Algiers. It is watered by a river, the Sujerass, which falls into the Mejerda, (Bagradas.) Tibesh is still remarkable for its walls of large stones, (like the Coliseum of Rome,) a fountain, and a grove of walnut-trees: the country is fruitful, and the neighboring Bereberes are warlike. It appears from an inscription, that, under the reign of Adrian, the road from Carthage to Tebeste was constructed by the third legion, (Marmol, Description de l'Afrique, tom. ii. p. 442, 443. Shaw's Travels, p. 64, 65, 66.)]

[Footnote *: Corripus (Johannidos lib. iii. 417 - 441) describes the defeat and death of Solomon. - M.]

[Footnote 5: Procopius, Anecdot. c. 18. The series of the African history at tests this melancholy truth.]

The jealousy of the Byzantine court had not permitted Belisarius to achieve the conquest of Italy; and his abrupt departure revived the courage of the Goths, ^6 who respected his genius, his virtue, and even the laudable motive which had urged the servant of Justinian to deceive and reject them. They had lost their king, (an inconsiderable loss,) their capital, their treasures, the provinces from Sicily to the Alps, and the military force of two hundred thousand Barbarians, magnificently equipped with horses and arms. Yet all was not lost, as long as Pavia was defended by one thousand Goths, inspired by a sense of honor, the love of freedom, and the memory of their past greatness. The supreme command was unanimously offered to the brave Uraias; and it was in his eyes alone that the disgrace of his uncle Vitiges could appear as a reason of exclusion. His voice inclined the election in favor of Hildibald, whose personal merit was recommended by the vain hope that his kinsman Theudes, the Spanish monarch, would support the common interest of the Gothic nation. The success of his arms in Liguria and Venetia seemed to justify their choice; but he soon declared to the world that he was incapable of forgiving or commanding his benefactor. The consort of Hildibald was deeply wounded by the beauty, the riches, and the pride, of the wife of Uraias; and the death of that virtuous patriot excited the indignation of a free people. A bold assassin executed their sentence by striking off the head of Hildibald in the midst of a banquet; the Rugians, a foreign tribe, assumed the privilege of election: and Totila, ^* the nephew of the late king, was tempted, by revenge, to deliver himself and the garrison of Trevigo into the hands of the Romans. But the gallant and accomplished youth was easily persuaded to prefer the Gothic throne before the service of Justinian; and as soon as the palace of Pavia had been purified from the Rugian usurper, he reviewed the national force of five thousand soldiers, and generously undertook the restoration of the kingdom of Italy.

[Footnote 6: In the second (c. 30) and third books, (c. 1 - 40,) Procopius continues the history of the Gothic war from the fifth to the fifteenth year of Justinian. As the events are less interesting than in the former period, he allots only half the space to double the time. Jornandes, and the Chronicle of Marcellinus, afford some collateral hints Sigonius, Pagi, Muratori, Mascou, and De Buat, are useful, and have been used.] [Footnote *: His real name, as appears by medals, was Baduilla, or Badiula. Totila signifies immortal: tod (in German) is death. Todilas, deathless. Compare St Martin, vol. ix. p. 37. - M.]

The successors of Belisarius, eleven generals of equal rank, neglected to crush the feeble and disunited Goths, till they were roused to action by the progress of Totila and the reproaches of Justinian. The gates of Verona were secretly opened to Artabazus, at the head of one hundred Persians in the service of the empire. The Goths fled from the city. At the distance of sixty furlongs the Roman generals halted to regulate the division of the spoil. While they disputed, the enemy discovered the real number of the victors: the Persians were instantly overpowered, and it was by leaping from the wall that Artabazus preserved a life which he lost in a few days by the lance of a Barbarian, who had defied him to single combat. Twenty thousand Romans encountered the forces of Totila, near Faenza, and on the hills of Mugello, of the Florentine territory. The ardor of freedmen, who fought to regain their country, was opposed to the languid temper of mercenary troops, who were even destitute of the merits of strong and well-disciplined servitude. On the first attack, they abandoned their ensigns, threw down their arms, and dispersed on all sides with an active speed, which abated the loss, whilst it aggravated the shame, of their defeat. The king of the Goths, who blushed for the baseness of his enemies, pursued with rapid steps the path of honor and victory. Totila passed the Po, ^* traversed the Apennine, suspended the important conquest of Ravenna, Florence, and Rome, and marched through the heart of Italy, to form the siege or rather the blockade, of Naples. The Roman chiefs, imprisoned in their respective cities, and accusing each other of the common disgrace, did not presume to disturb his enterprise. But the emperor, alarmed by the distress and danger of his Italian conquests, despatched to the relief of Naples a fleet of galleys and a body of Thracian and Armenian soldiers. They landed in Sicily, which yielded its copious stores of provisions; but the delays of the new commander, an unwarlike magistrate, protracted the sufferings of the besieged; and the succors, which he dropped with a timid and tardy hand, were successively intercepted by the armed vessels stationed by Totila in the Bay of Naples. The principal officer of the Romans was dragged, with a rope round his neck, to the foot of the wall, from whence, with a trembling voice, he exhorted the citizens to implore, like himself, the mercy of the conqueror. They requested a truce, with a promise of surrendering the city, if no effectual relief should appear at the end of thirty days. Instead of one month, the audacious Barbarian granted them three, in the just confidence that famine would anticipate the term of their capitulation. After the reduction of Naples and Cumae, the provinces of Lucania, Apulia, and Calabria, submitted to the king of the Goths. Totila led his army to the gates of Rome, pitched his camp at Tibur, or Tivoli, within twenty miles of the capital, and calmly exhorted the senate and people to compare the tyranny of the Greeks with the blessings of the Gothic reign.

[Footnote *: This is not quite correct: he had crossed the Po before the battle of Faenza. - M.]

The rapid success of Totila may be partly ascribed to the revolution which three years' experience had produced in the sentiments of the Italians. At the command, or at least in the name, of a Catholic emperor, the pope, ^7 their spiritual father, had been torn from the Roman church, and either starved or murdered on a desolate island. ^8 The virtues of Belisarius were replaced by the various or uniform vices of eleven chiefs, at Rome, Ravenna, Florence, Perugia, Spoleto, &c., who abused their authority for the indulgence of lust or avarice. The improvement of the revenue was committed to Alexander, a subtle scribe, long practised in the fraud and oppression of the Byzantine schools, and whose name of Psalliction, the scissors, ^9 was drawn from the dexterous artifice with which he reduced the size without defacing the figure, of the gold coin. Instead of expecting the restoration of peace and industry, he imposed a heavy assessment on the fortunes of the Italians. Yet his present or future demands were less odious than a prosecution of arbitrary rigor against the persons and property of all those who, under the Gothic kings, had been concerned in the receipt and expenditure of the public money. The subjects of Justinian, who escaped these partial vexations, were oppressed by the irregular maintenance of the soldiers, whom Alexander defrauded and despised; and their hasty sallies in quest of wealth, or subsistence, provoked the inhabitants of the country to await or implore their deliverance from the virtues of a Barbarian. Totila ^10 was chaste and temperate; and none were deceived, either friends or enemies, who depended on his faith or his clemency. To the husbandmen of Italy the Gothic king issued a welcome proclamation, enjoining them to pursue their important labors, and to rest assured, that, on the payment of the ordinary taxes, they should be defended by his valor and discipline from the injuries of war. The strong towns he successively attacked; and as soon as they had yielded to his arms, he demolished the fortifications, to save the people from the calamities of a future siege, to deprive the Romans of the arts of defence, and to decide the tedious quarrel of the two nations, by an equal and honorable conflict in the field of battle. The Roman captives and deserters were tempted to enlist in the service of a liberal and courteous adversary; the slaves were attracted by the firm and faithful promise, that they should never be delivered to their masters; and from the thousand warriors of Pavia, a new people, under the same appellation of Goths, was insensibly formed in the camp of Totila. He sincerely accomplished the articles of capitulation, without seeking or accepting any sinister advantage from ambiguous expressions or unforeseen events: the garrison of Naples had stipulated that they should be transported by sea; the obstinacy of the winds prevented their voyage, but they were generously supplied with horses, provisions, and a safe-conduct to the gates of Rome. The wives of the senators, who had been surprised in the villas of Campania, were restored, without a ransom, to their husbands; the violation of female chastity was inexorably chastised with death; and in the salutary regulation of the edict of the famished Neapolitans, the conqueror assumed the office of a humane and attentive physician. The virtues of Totila are equally laudable, whether they proceeded from true policy, religious principle, or the instinct of humanity: he often harangued his troops; and it was his constant theme, that national vice and ruin are inseparably connected; that victory is the fruit of moral as well as military virtue; and that the prince, and even the people, are responsible for the crimes which they neglect to punish. [Footnote 7: Sylverius, bishop of Rome, was first transported to Patara, in Lycia, and at length starved (sub eorum custodia inedia confectus) in the Isle of Palmaria, A.D. 538, June 20, (Liberat. in Breviar. c. 22. Anastasius, in Sylverio. Baronius, A.D. 540, No. 2, 3. Pagi, in Vit. Pont. tom. i. p. 285, 286.) Procopius (Anecdot. c. 1) accuses only the empress and Antonina.] [Footnote 8: Palmaria, a small island, opposite to Terracina and the coast of the Volsci, (Cluver. Ital. Antiq. l. iii. c. 7, p. 1014.)] [Footnote 9: As the Logothete Alexander, and most of his civil and military colleagues, were either disgraced or despised, the ink of the Anecdotes (c. 4, 5, 18) is scarcely blacker than that of the Gothic History (l. iii. c. 1, 3, 4, 9, 20, 21, &c.)]

[Footnote 10: Procopius (l. iii. c. 2, 8, &c.,) does ample and willing justice to the merit of Totila. The Roman historians, from Sallust and Tacitus were happy to forget the vices of their countrymen in the contemplation of Barbaric virtue.]

The return of Belisarius to save the country which he had subdued, was pressed with equal vehemence by his friends and enemies; and the Gothic war was imposed as a trust or an exile on the veteran commander. A hero on the banks of the Euphrates, a slave in the palace of Constantinople, he accepted with reluctance the painful task of supporting his own reputation, and retrieving the faults of his successors. The sea was open to the Romans: the ships and soldiers were assembled at Salona, near the palace of Diocletian: he refreshed and reviewed his troops at Pola in Istria, coasted round the head of the Adriatic, entered the port of Ravenna, and despatched orders rather than supplies to the subordinate cities. His first public oration was addressed to the Goths and Romans, in the name of the emperor, who had suspended for a while the conquest of Persia, and listened to the prayers of his Italian subjects. He gently touched on the causes and the authors of the recent disasters; striving to remove the fear of punishment for the past, and the hope of impunity for the future, and laboring, with more zeal than success, to unite all the members of his government in a firm league of affection and obedience. Justinian, his gracious master, was inclined to pardon and reward; and it was their interest, as well as duty, to reclaim their deluded brethren, who had been seduced by the arts of the usurper. Not a man was tempted to desert the standard of the Gothic king. Belisarius soon discovered, that he was sent to remain the idle and impotent spectator of the glory of a young Barbarian; and his own epistle exhibits a genuine and lively picture of the distress of a noble mind. “Most excellent prince, we are arrived in Italy, destitute of all the necessary implements of war, men, horses, arms, and money. In our late circuit through the villages of Thrace and Illyricum, we have collected, with extreme difficulty, about four thousand recruits, naked, and unskilled in the use of weapons and the exercises of the camp. The soldiers already stationed in the province are discontented, fearful, and dismayed; at the sound of an enemy, they dismiss their horses, and cast their arms on the ground. No taxes can be raised, since Italy is in the hands of the Barbarians; the failure of payment has deprived us of the right of command, or even of admonition. Be assured, dread Sir, that the greater part of your troops have already deserted to the Goths. If the war could be achieved by the presence of Belisarius alone, your wishes are satisfied; Belisarius is in the midst of Italy. But if you desire to conquer, far other preparations are requisite: without a military force, the title of general is an empty name. It would be expedient to restore to my service my own veteran and domestic guards. Before I can take the field, I must receive an adequate supply of light and heavy armed troops; and it is only with ready money that you can procure the indispensable aid of a powerful body of the cavalry of the Huns.” ^11 An officer in whom Belisarius confided was sent from Ravenna to hasten and conduct the succors; but the message was neglected, and the messenger was detained at Constantinople by an advantageous marriage. After his patience had been exhausted by delay and disappointment, the Roman general repassed the Adriatic, and expected at Dyrrachium the arrival of the troops, which were slowly assembled among the subjects and allies of the empire. His powers were still inadequate to the deliverance of Rome, which was closely besieged by the Gothic king. The Appian way, a march of forty days, was covered by the Barbarians; and as the prudence of Belisarius declined a battle, he preferred the safe and speedy navigation of five days from the coast of Epirus to the mouth of the Tyber.

[Footnote 11: Procopius, l. iii. c. 12. The soul of a hero is deeply impressed on the letter; nor can we confound such genuine and original acts with the elaborate and often empty speeches of the Byzantine historians] After reducing, by force, or treaty, the towns of inferior note in the midland provinces of Italy, Totila proceeded, not to assault, but to encompass and starve, the ancient capital. Rome was afflicted by the avarice, and guarded by the valor, of Bessas, a veteran chief of Gothic extraction, who filled, with a garrison of three thousand soldiers, the spacious circle of her venerable walls. From the distress of the people he extracted a profitable trade, and secretly rejoiced in the continuance of the siege. It was for his use that the granaries had been replenished: the charity of Pope Vigilius had purchased and embarked an ample supply of Sicilian corn; but the vessels which escaped the Barbarians were seized by a rapacious governor, who imparted a scanty sustenance to the soldiers, and sold the remainder to the wealthy Romans. The medimnus, or fifth part of the quarter of wheat, was exchanged for seven pieces of gold; fifty pieces were given for an ox, a rare and accidental prize; the progress of famine enhanced this exorbitant value, and the mercenaries were tempted to deprive themselves of the allowance which was scarcely sufficient for the support of life. A tasteless and unwholesome mixture, in which the bran thrice exceeded the quantity of flour, appeased the hunger of the poor; they were gradually reduced to feed on dead horses, dogs, cats, and mice, and eagerly to snatch the grass, and even the nettles, which grew among the ruins of the city. A crowd of spectres, pale and emaciated, their bodies oppressed with disease, and their minds with despair, surrounded the palace of the governor, urged, with unavailing truth, that it was the duty of a master to maintain his slaves, and humbly requested that he would provide for their subsistence, to permit their flight, or command their immediate execution. Bessas replied, with unfeeling tranquillity, that it was impossible to feed, unsafe to dismiss, and unlawful to kill, the subjects of the emperor. Yet the example of a private citizen might have shown his countrymen that a tyrant cannot withhold the privilege of death. Pierced by the cries of five children, who vainly called on their father for bread, he ordered them to follow his steps, advanced with calm and silent despair to one of the bridges of the Tyber, and, covering his face, threw himself headlong into the stream, in the presence of his family and the Roman people. To the rich and pusillammous, Bessas ^12 sold the permission of departure; but the greatest part of the fugitives expired on the public highways, or were intercepted by the flying parties of Barbarians. In the mean while, the artful governor soothed the discontent, and revived the hopes of the Romans, by the vague reports of the fleets and armies which were hastening to their relief from the extremities of the East. They derived more rational comfort from the assurance that Belisarius had landed at the port; and, without numbering his forces, they firmly relied on the humanity, the courage, and the skill of their great deliverer.

[Footnote 12: The avarice of Bessas is not dissembled by Procopius, (l. iii. c. 17, 20.) He expiated the loss of Rome by the glorious conquest of Petraea, (Goth. l. iv. c. 12;) but the same vices followed him from the Tyber to the Phasis, (c. 13;) and the historian is equally true to the merits and defects of his character. The chastisement which the author of the romance of Belisaire has inflicted on the oppressor of Rome is more agreeable to justice than to history.]

The foresight of Totila had raised obstacles worthy of such an antagonist. Ninety furlongs below the city, in the narrowest part of the river, he joined the two banks by strong and solid timbers in the form of a bridge, on which he erected two lofty towers, manned by the bravest of his Goths, and profusely stored with missile weapons and engines of offence. The approach of the bridge and towers was covered by a strong and massy chain of iron; and the chain, at either end, on the opposite sides of the Tyber, was defended by a numerous and chosen detachment of archers. But the enterprise of forcing these barriers, and relieving the capital, displays a shining example of the boldness and conduct of Belisarius. His cavalry advanced from the port along the public road, to awe the motions, and distract the attention of the enemy. His infantry and provisions were distributed in two hundred large boats; and each boat was shielded by a high rampart of thick planks, pierced with many small holes for the discharge of missile weapons. In the front, two large vessels were linked together to sustain a floating castle, which commanded the towers of the bridge, and contained a magazine of fire, sulphur, and bitumen. The whole fleet, which the general led in person, was laboriously moved against the current of the river. The chain yielded to their weight, and the enemies who guarded the banks were either slain or scattered. As soon as they touched the principal barrier, the fire- ship was instantly grappled to the bridge; one of the towers, with two hundred Goths, was consumed by the flames; the assailants shouted victory; and Rome was saved, if the wisdom of Belisarius had not been defeated by the misconduct of his officers. He had previously sent orders to Bessas to second his operations by a timely sally from the town; and he had fixed his lieutenant, Isaac, by a peremptory command, to the station of the port. But avarice rendered Bessas immovable; while the youthful ardor of Isaac delivered him into the hands of a superior enemy. The exaggerated rumor of his defeat was hastily carried to the ears of Belisarius: he paused; betrayed in that single moment of his life some emotions of surprise and perplexity; and reluctantly sounded a retreat to save his wife Antonina, his treasures, and the only harbor which he possessed on the Tuscan coast. The vexation of his mind produced an ardent and almost mortal fever; and Rome was left without protection to the mercy or indignation of Totila. The continuance of hostilities had imbittered the national hatred: the Arian clergy was ignominiously driven from Rome; Pelagius, the archdeacon, returned without success from an embassy to the Gothic camp; and a Sicilian bishop, the envoy or nuncio of the pope, was deprived of both his hands, for daring to utter falsehoods in the service of the church and state.

Famine had relaxed the strength and discipline of the garrison of Rome. They could derive no effectual service from a dying people; and the inhuman avarice of the merchant at length absorbed the vigilance of the governor. Four Isaurian sentinels, while their companions slept, and their officers were absent, descended by a rope from the wall, and secretly proposed to the Gothic king to introduce his troops into the city. The offer was entertained with coldness and suspicion; they returned in safety; they twice repeated their visit; the place was twice examined; the conspiracy was known and disregarded; and no sooner had Totila consented to the attempt, than they unbarred the Asinarian gate, and gave admittance to the Goths. Till the dawn of day, they halted in order of battle, apprehensive of treachery or ambush; but the troops of Bessas, with their leader, had already escaped; and when the king was pressed to disturb their retreat, he prudently replied, that no sight could be more grateful than that of a flying enemy. The patricians, who were still possessed of horses, Decius, Basilius, &c. accompanied the governor; their brethren, among whom Olybrius, Orestes, and Maximus, are named by the historian, took refuge in the church of St. Peter: but the assertion, that only five hundred persons remained in the capital, inspires some doubt of the fidelity either of his narrative or of his text. As soon as daylight had displayed the entire victory of the Goths, their monarch devoutly visited the tomb of the prince of the apostles; but while he prayed at the altar, twenty-five soldiers, and sixty citizens, were put to the sword in the vestibule of the temple. The archdeacon Pelagius ^13 stood before him, with the Gospels in his hand. “O Lord, be merciful to your servant.” “Pelagius,” said Totila, with an insulting smile, “your pride now condescends to become a suppliant.” “I am a suppliant,” replied the prudent archdeacon; “God has now made us your subjects, and as your subjects, we are entitled to your clemency.” At his humble prayer, the lives of the Romans were spared; and the chastity of the maids and matrons was preserved inviolate from the passions of the hungry soldiers. But they were rewarded by the freedom of pillage, after the most precious spoils had been reserved for the royal treasury. The houses of the senators were plentifully stored with gold and silver; and the avarice of Bessas had labored with so much guilt and shame for the benefit of the conqueror. In this revolution, the sons and daughters of Roman consuls lasted the misery which they had spurned or relieved, wandered in tattered garments through the streets of the city and begged their bread, perhaps without success, before the gates of their hereditary mansions. The riches of Rusticiana, the daughter of Symmachus and widow of Boethius, had been generously devoted to alleviate the calamities of famine. But the Barbarians were exasperated by the report, that she had prompted the people to overthrow the statues of the great Theodoric; and the life of that venerable matron would have been sacrificed to his memory, if Totila had not respected her birth, her virtues, and even the pious motive of her revenge. The next day he pronounced two orations, to congratulate and admonish his victorious Goths, and to reproach the senate, as the vilest of slaves, with their perjury, folly, and ingratitude; sternly declaring, that their estates and honors were justly forfeited to the companions of his arms. Yet he consented to forgive their revolt; and the senators repaid his clemency by despatching circular letters to their tenants and vassals in the provinces of Italy, strictly to enjoin them to desert the standard of the Greeks, to cultivate their lands in peace, and to learn from their masters the duty of obedience to a Gothic sovereign. Against the city which had so long delayed the course of his victories, he appeared inexorable: one third of the walls, in different parts, were demolished by his command; fire and engines prepared to consume or subvert the most stately works of antiquity; and the world was astonished by the fatal decree, that Rome should be changed into a pasture for cattle. The firm and temperate remonstrance of Belisarius suspended the execution; he warned the Barbarian not to sully his fame by the destruction of those monuments which were the glory of the dead, and the delight of the living; and Totila was persuaded, by the advice of an enemy, to preserve Rome as the ornament of his kingdom, or the fairest pledge of peace and reconciliation. When he had signified to the ambassadors of Belisarius his intention of sparing the city, he stationed an army at the distance of one hundred and twenty furlongs, to observe the motions of the Roman general. With the remainder of his forces he marched into Lucania and Apulia, and occupied on the summit of Mount Garganus ^14 one of the camps of Hannibal. ^15 The senators were dragged in his train, and afterwards confined in the fortresses of Campania: the citizens, with their wives and children, were dispersed in exile; and during forty days Rome was abandoned to desolate and dreary solitude. ^16

[Footnote 13: During the long exile, and after the death of Vigilius, the Roman church was governed, at first by the archdeacon, and at length (A. D 655) by the pope Pelagius, who was not thought guiltless of the sufferings of his predecessor. See the original lives of the popes under the name of Anastasius, (Muratori, Script. Rer. Italicarum, tom. iii. P. i. p. 130, 131,) who relates several curious incidents of the sieges of Rome and the wars of Italy.]

[Footnote 14: Mount Garganus, now Monte St. Angelo, in the kingdom of Naples, runs three hundred stadia into the Adriatic Sea, (Strab. - vi. p. 436,) and in the darker ages was illustrated by the apparition, miracles, and church, of St. Michael the archangel. Horace, a native of Apulia or Lucania, had seen the elms and oaks of Garganus laboring and bellowing with the north wind that blew on that lofty coast, (Carm. ii. 9, Epist. ii. i. 201.)] [Footnote 15: I cannot ascertain this particular camp of Hannibal; but the Punic quarters were long and often in the neighborhood of Arpi, (T. Liv. xxii. 9, 12, xxiv. 3, &c.)]

[Footnote 16: Totila …. Romam ingreditur …. ac evertit muros, domos aliquantas igni comburens, ac omnes Romanorum res in praedam ac cepit, hos ipsos Romanos in Campaniam captivos abduxit. Post quam devastationem, xl. autamp lius dies, Roma fuit ita desolata, ut nemo ibi hominum, nisi (nulloe?) bestiae morarentur, (Marcellin. in Chron. p. 54.)]

The loss of Rome was speedily retrieved by an action, to which, according to the event, the public opinion would apply the names of rashness or heroism. After the departure of Totila, the Roman general sallied from the port at the head of a thousand horse, cut in pieces the enemy who opposed his progress, and visited with pity and reverence the vacant space of the eternal city. Resolved to maintain a station so conspicuous in the eyes of mankind, he summoned the greatest part of his troops to the standard which he erected on the Capitol: the old inhabitants were recalled by the love of their country and the hopes of food; and the keys of Rome were sent a second time to the emperor Justinian. The walls, as far as they had been demolished by the Goths, were repaired with rude and dissimilar materials; the ditch was restored; iron spikes ^17 were profusely scattered in the highways to annoy the feet of the horses; and as new gates could not suddenly be procured, the entrance was guarded by a Spartan rampart of his bravest soldiers. At the expiration of twenty-five days, Totila returned by hasty marches from Apulia to avenge the injury and disgrace. Belisarius expected his approach. The Goths were thrice repulsed in three general assaults; they lost the flower of their troops; the royal standard had almost fallen into the hands of the enemy, and the fame of Totila sunk, as it had risen, with the fortune of his arms. Whatever skill and courage could achieve, had been performed by the Roman general: it remained only that Justinian should terminate, by a strong and seasonable effort, the war which he had ambitiously undertaken. The indolence, perhaps the impotence, of a prince who despised his enemies, and envied his servants, protracted the calamities of Italy. After a long silence, Belisarius was commanded to leave a sufficient garrison at Rome, and to transport himself into the province of Lucania, whose inhabitants, inflamed by Catholic zeal, had cast away the yoke of their Arian conquerors. In this ignoble warfare, the hero, invincible against the power of the Barbarians, was basely vanquished by the delay, the disobedience, and the cowardice of his own officers. He reposed in his winter quarters of Crotona, in the full assurance, that the two passes of the Lucanian hills were guarded by his cavalry. They were betrayed by treachery or weakness; and the rapid march of the Goths scarcely allowed time for the escape of Belisarius to the coast of Sicily. At length a fleet and army were assembled for the relief of Ruscianum, or Rossano, ^18 a fortress sixty furlongs from the ruins of Sybaris, where the nobles of Lucania had taken refuge. In the first attempt, the Roman forces were dissipated by a storm. In the second, they approached the shore; but they saw the hills covered with archers, the landing-place defended by a line of spears, and the king of the Goths impatient for battle. The conqueror of Italy retired with a sigh, and continued to languish, inglorious and inactive, till Antonina, who had been sent to Constantinople to solicit succors, obtained, after the death of the empress, the permission of his return.

[Footnote 17: The tribuli are small engines with four spikes, one fixed in the ground, the three others erect or adverse, (Procopius, Gothic. l. iii. c. 24. Just. Lipsius, Poliorcetwv, l. v. c. 3.) The metaphor was borrowed from the tribuli, (land-caltrops,) an herb with a prickly fruit, commex in Italy. (Martin, ad Virgil. Georgic. i. 153 vol. ii. p. 33.)]

[Footnote 18: Ruscia, the navale Thuriorum, was transferred to the distance of sixty stadia to Ruscianum, Rossano, an archbishopric without suffragans. The republic of Sybaris is now the estate of the duke of Corigliano. (Riedesel, Travels into Magna Graecia and Sicily, p. 166 - 171.)]

The five last campaigns of Belisarius might abate the envy of his competitors, whose eyes had been dazzled and wounded by the blaze of his former glory. Instead of delivering Italy from the Goths, he had wandered like a fugitive along the coast, without daring to march into the country, or to accept the bold and repeated challenge of Totila. Yet, in the judgment of the few who could discriminate counsels from events, and compare the instruments with the execution, he appeared a more consummate master of the art of war, than in the season of his prosperity, when he presented two captive kings before the throne of Justinian. The valor of Belisarius was not chilled by age: his prudence was matured by experience; but the moral virtues of humanity and justice seem to have yielded to the hard necessity of the times. The parsimony or poverty of the emperor compelled him to deviate from the rule of conduct which had deserved the love and confidence of the Italians. The war was maintained by the oppression of Ravenna, Sicily, and all the faithful subjects of the empire; and the rigorous prosecution of Herodian provoked that injured or guilty officer to deliver Spoleto into the hands of the enemy. The avarice of Antonina, which had been some times diverted by love, now reigned without a rival in her breast. Belisarius himself had always understood, that riches, in a corrupt age, are the support and ornament of personal merit. And it cannot be presumed that he should stain his honor for the public service, without applying a part of the spoil to his private emolument. The hero had escaped the sword of the Barbarians. But the dagger of conspiracy ^19 awaited his return. In the midst of wealth and honors, Artaban, who had chastised the African tyrant, complained of the ingratitude of courts. He aspired to Praejecta, the emperor's niece, who wished to reward her deliverer; but the impediment of his previous marriage was asserted by the piety of Theodora. The pride of royal descent was irritated by flattery; and the service in which he gloried had proved him capable of bold and sanguinary deeds. The death of Justinian was resolved, but the conspirators delayed the execution till they could surprise Belisarius disarmed, and naked, in the palace of Constantinople. Not a hope could be entertained of shaking his long-tried fidelity; and they justly dreaded the revenge, or rather the justice, of the veteran general, who might speedily assemble an army in Thrace to punish the assassins, and perhaps to enjoy the fruits of their crime. Delay afforded time for rash communications and honest confessions: Artaban and his accomplices were condemned by the senate, but the extreme clemency of Justinian detained them in the gentle confinement of the palace, till he pardoned their flagitious attempt against his throne and life. If the emperor forgave his enemies, he must cordially embrace a friend whose victories were alone remembered, and who was endeared to his prince by the recent circumstances of their common danger. Belisarius reposed from his toils, in the high station of general of the East and count of the domestics; and the older consuls and patricians respectfully yielded the precedency of rank to the peerless merit of the first of the Romans. ^20 The first of the Romans still submitted to be the slave of his wife; but the servitude of habit and affection became less disgraceful when the death of Theodora had removed the baser influence of fear. Joannina, their daughter, and the sole heiress of their fortunes, was betrothed to Anastasius, the grandson, or rather the nephew, of the empress, ^21 whose kind interposition forwarded the consummation of their youthful loves. But the power of Theodora expired, the parents of Joannina returned, and her honor, perhaps her happiness, were sacrificed to the revenge of an unfeeling mother, who dissolved the imperfect nuptials before they had been ratified by the ceremonies of the church. ^22 [Footnote 19: This conspiracy is related by Procopius (Gothic. l. iii. c. 31, 32, with such freedom and candor, that the liberty of the Anecdotes gives him nothing to add.]

[Footnote 20: The honors of Belisarius are gladly commemorated by his secretary, (Procop. Goth. l. iii. c. 35, l. iv. c. 21.) This title is ill translated, at least in this instance, by praefectus praetorio; and to a military character, magister militum is more proper and applicable, (Ducange, Gloss. Graec. p. 1458, 1459.)]

[Footnote 21: Alemannus, (ad Hist. Arcanum, p. 68,) Ducange, (Familiae Byzant. p. 98,) and Heineccius, (Hist. Juris Civilis, p. 434,) all three represent Anastasius as the son of the daughter of Theodora; and their opinion firmly reposes on the unambiguous testimony of Procopius, (Anecdot. c. 4, 5, - twice repeated.) And yet I will remark, 1. That in the year 547, Theodora could sarcely have a grandson of the age of puberty; 2. That we are totally ignorant of this daughter and her husband; and, 3. That Theodora concealed her bastards, and that her grandson by Justinian would have been heir apparent of the empire.]

[Footnote 22: The sins of the hero in Italy and after his return, are manifested, and most probably swelled, by the author of the Anecdotes, (c. 4, 5.) The designs of Antonina were favored by the fluctuating jurisprudence of Justinian. On the law of marriage and divorce, that emperor was trocho versatilior, (Heineccius, Element Juris Civil. ad Ordinem Pandect. P. iv. No. 233.)]

Before the departure of Belisarius, Perusia was besieged, and few cities were impregnable to the Gothic arms. Ravenna, Ancona, and Crotona, still resisted the Barbarians; and when Totila asked in marriage one of the daughters of France, he was stung by the just reproach that the king of Italy was unworthy of his title till it was acknowledged by the Roman people. Three thousand of the bravest soldiers had been left to defend the capital. On the suspicion of a monopoly, they massacred the governor, and announced to Justinian, by a deputation of the clergy, that unless their offence was pardoned, and their arrears were satisfied, they should instantly accept the tempting offers of Totila. But the officer who succeeded to the command (his name was Diogenes) deserved their esteem and confidence; and the Goths, instead of finding an easy conquest, encountered a vigorous resistance from the soldiers and people, who patiently endured the loss of the port and of all maritime supplies. The siege of Rome would perhaps have been raised, if the liberality of Totila to the Isaurians had not encouraged some of their venal countrymen to copy the example of treason. In a dark night, while the Gothic trumpets sounded on another side, they silently opened the gate of St. Paul: the Barbarians rushed into the city; and the flying garrison was intercepted before they could reach the harbor of Centumcellae. A soldier trained in the school of Belisarius, Paul of Cilicia, retired with four hundred men to the mole of Hadrian. They repelled the Goths; but they felt the approach of famine; and their aversion to the taste of horse-flesh confirmed their resolution to risk the event of a desperate and decisive sally. But their spirit insensibly stooped to the offers of capitulation; they retrieved their arrears of pay, and preserved their arms and horses, by enlisting in the service of Totila; their chiefs, who pleaded a laudable attachment to their wives and children in the East, were dismissed with honor; and above four hundred enemies, who had taken refuge in the sanctuaries, were saved by the clemency of the victor. He no longer entertained a wish of destroying the edifices of Rome, ^23 which he now respected as the seat of the Gothic kingdom: the senate and people were restored to their country; the means of subsistence were liberally provided; and Totila, in the robe of peace, exhibited the equestrian games of the circus. Whilst he amused the eyes of the multitude, four hundred vessels were prepared for the embarkation of his troops. The cities of Rhegium and Tarentum were reduced: he passed into Sicily, the object of his implacable resentment; and the island was stripped of its gold and silver, of the fruits of the earth, and of an infinite number of horses, sheep, and oxen. Sardinia and Corsica obeyed the fortune of Italy; and the sea-coast of Greece was visited by a fleet of three hundred galleys. ^24 The Goths were landed in Corcyra and the ancient continent of Epirus; they advanced as far as Nicopolis, the trophy of Augustus, and Dodona, ^25 once famous by the oracle of Jove. In every step of his victories, the wise Barbarian repeated to Justinian the desire of peace, applauded the concord of their predecessors, and offered to employ the Gothic arms in the service of the empire.

[Footnote 23: The Romans were still attached to the monuments of their ancestors; and according to Procopius, (Goth. l. iv. c. 22,) the gallery of Aeneas, of a single rank of oars, 25 feet in breadth, 120 in length, was preserved entire in the navalia, near Monte Testaceo, at the foot of the Aventine, (Nardini, Roma Antica, l. vii. c. 9, p. 466. Donatus, Rom Antiqua, l. iv. c. 13, p. 334) But all antiquity is ignorant of relic.] [Footnote 24: In these seas Procopius searched without success for the Isle of Calypso. He was shown, at Phaeacia, or Cocyra, the petrified ship of Ulysses, (Odyss. xiii. 163;) but he found it a recent fabric of many stones, dedicated by a merchant to Jupiter Cassius, (l. iv. c. 22.) Eustathius had supposed it to be the fanciful likeness of a rock.]

[Footnote 25: M. D'Anville (Memoires de l'Acad. tom. xxxii. p. 513 - 528) illustrates the Gulf of Ambracia; but he cannot ascertain the situation of Dodona. A country in sight of Italy is less known than the wilds of America. Note: On the site of Dodona compare Walpole's Travels in the East, vol. ii. p. 473; Col. Leake's Northern Greece, vol. iv. p. 163; and a dissertation by the present bishop of Lichfield (Dr. Butler) in the appendix to Hughes's Travels, vol. i. p. 511. - M.]

Justinian was deaf to the voice of peace: but he neglected the prosecution of war; and the indolence of his temper disappointed, in some degree, the obstinacy of his passions. From this salutary slumber the emperor was awakened by the pope Vigilius and the patrician Cethegus, who appeared before his throne, and adjured him, in the name of God and the people, to resume the conquest and deliverance of Italy. In the choice of the generals, caprice, as well as judgment, was shown. A fleet and army sailed for the relief of Sicily, under the conduct of Liberius; but his youth ^! and want of experience were afterwards discovered, and before he touched the shores of the island he was overtaken by his successor. In the place of Liberius, the conspirator Artaban was raised from a prison to military honors; in the pious presumption, that gratitude would animate his valor and fortify his allegiance. Belisarius reposed in the shade of his laurels, but the command of the principal army was reserved for Germanus, ^26 the emperor's nephew, whose rank and merit had been long depressed by the jealousy of the court. Theodora had injured him in the rights of a private citizen, the marriage of his children, and the testament of his brother; and although his conduct was pure and blameless, Justinian was displeased that he should be thought worthy of the confidence of the malecontents. The life of Germanus was a lesson of implicit obedience: he nobly refused to prostitute his name and character in the factions of the circus: the gravity of his manners was tempered by innocent cheerfulness; and his riches were lent without interest to indigent or deserving friends. His valor had formerly triumphed over the Sclavonians of the Danube and the rebels of Africa: the first report of his promotion revived the hopes of the Italians; and he was privately assured, that a crowd of Roman deserters would abandon, on his approach, the standard of Totila. His second marriage with Malasontha, the granddaughter of Theodoric endeared Germanus to the Goths themselves; and they marched with reluctance against the father of a royal infant the last offspring of the line of Amali. ^27 A splendid allowance was assigned by the emperor: the general contribute his private fortune: his two sons were popular and active and he surpassed, in the promptitude and success of his levies the expectation of mankind. He was permitted to select some squadrons of Thracian cavalry: the veterans, as well as the youth of Constantinople and Europe, engaged their voluntary service; and as far as the heart of Germany, his fame and liberality attracted the aid of the Barbarians. ^* The Romans advanced to Sardica; an army of Sclavonians fled before their march; but within two days of their final departure, the designs of Germanus were terminated by his malady and death. Yet the impulse which he had given to the Italian war still continued to act with energy and effect. The maritime towns Ancona, Crotona, Centumcellae, resisted the assaults of Totila Sicily was reduced by the zeal of Artaban, and the Gothic navy was defeated near the coast of the Adriatic. The two fleets were almost equal, forty-seven to fifty galleys: the victory was decided by the knowledge and dexterity of the Greeks; but the ships were so closely grappled, that only twelve of the Goths escaped from this unfortunate conflict. They affected to depreciate an element in which they were unskilled; but their own experience confirmed the truth of a maxim, that the master of the sea will always acquire the dominion of the land. ^28

[Footnote !: This is a singular mistake. Gibbon must have hastily caught at his inexperience, and concluded that it must have been from youth. Lord Mahon has pointed out this error, p. 401. I should add that in the last 4to. edition, corrected by Gibbon, it stands “want of youth and experience;” - but Gibbon can scarcely have intended such a phrase. - M.]

[Footnote 26: See the acts of Germanus in the public (Vandal. l. ii, c. 16, 17, 18 Goth. l. iii. c. 31, 32) and private history, (Anecdot. c. 5,) and those of his son Justin, in Agathias, (l. iv. p. 130, 131.) Notwithstanding an ambiguous expression of Jornandes, fratri suo, Alemannus has proved that he was the son of the emperor's brother.]

[Footnote 27: Conjuncta Aniciorum gens cum Amala stirpe spem adhuc utii usque generis promittit, (Jornandes, c. 60, p. 703.) He wrote at Ravenna before the death of Totila]

[Footnote *: See note 31, p. 268. - M.]

[Footnote 28: The third book of Procopius is terminated by the death of Germanus, (Add. l. iv. c. 23, 24, 25, 26.)]

After the loss of Germanus, the nations were provoked to smile, by the strange intelligence, that the command of the Roman armies was given to a eunuch. But the eunuch Narses ^29 is ranked among the few who have rescued that unhappy name from the contempt and hatred of mankind. A feeble, diminutive body concealed the soul of a statesman and a warrior. His youth had been employed in the management of the loom and distaff, in the cares of the household, and the service of female luxury; but while his hands were busy, he secretly exercised the faculties of a vigorous and discerning mind. A stranger to the schools and the camp, he studied in the palace to dissemble, to flatter, and to persuade; and as soon as he approached the person of the emperor, Justinian listened with surprise and pleasure to the manly counsels of his chamberlain and private treasurer. ^30 The talents of Narses were tried and improved in frequent embassies: he led an army into Italy acquired a practical knowledge of the war and the country, and presumed to strive with the genius of Belisarius. Twelve years after his return, the eunuch was chosen to achieve the conquest which had been left imperfect by the first of the Roman generals. Instead of being dazzled by vanity or emulation, he seriously declared that, unless he were armed with an adequate force, he would never consent to risk his own glory and that of his sovereign. Justinian granted to the favorite what he might have denied to the hero: the Gothic war was rekindled from its ashes, and the preparations were not unworthy of the ancient majesty of the empire. The key of the public treasure was put into his hand, to collect magazines, to levy soldiers, to purchase arms and horses, to discharge the arrears of pay, and to tempt the fidelity of the fugitives and deserters. The troops of Germanus were still in arms; they halted at Salona in the expectation of a new leader; and legions of subjects and allies were created by the well-known liberality of the eunuch Narses. The king of the Lombards ^31 satisfied or surpassed the obligations of a treaty, by lending two thousand two hundred of his bravest warriors, ^!! who were followed by three thousand of their martial attendants. Three thousand Heruli fought on horseback under Philemuth, their native chief; and the noble Aratus, who adopted the manners and discipline of Rome, conducted a band of veterans of the same nation. Dagistheus was released from prison to command the Huns; and Kobad, the grandson and nephew of the great king, was conspicuous by the regal tiara at the head of his faithful Persians, who had devoted themselves to the fortunes of their prince. ^32 Absolute in the exercise of his authority, more absolute in the affection of his troops, Narses led a numerous and gallant army from Philippopolis to Salona, from whence he coasted the eastern side of the Adriatic as far as the confines of Italy. His progress was checked. The East could not supply vessels capable of transporting such multitudes of men and horses. The Franks, who, in the general confusion, had usurped the greater part of the Venetian province, refused a free passage to the friends of the Lombards. The station of Verona was occupied by Teias, with the flower of the Gothic forces; and that skilful commander had overspread the adjacent country with the fall of woods and the inundation of waters. ^33 In this perplexity, an officer of experience proposed a measure, secure by the appearance of rashness; that the Roman army should cautiously advance along the seashore, while the fleet preceded their march, and successively cast a bridge of boats over the mouths of the rivers, the Timavus, the Brenta, the Adige, and the Po, that fall into the Adriatic to the north of Ravenna. Nine days he reposed in the city, collected the fragments of the Italian army, and marching towards Rimini to meet the defiance of an insulting enemy.

[Footnote 29: Procopius relates the whole series of this second Gothic war and the victory of Narses, (l. iv. c. 21, 26 - 35.) A splendid scene. Among the six subjects of epic poetry which Tasso revolved in his mind, he hesitated between the conquests of Italy by Belisarius and by Narses, (Hayley's Works, vol. iv. p. 70.)]

[Footnote 30: The country of Narses is unknown, since he must not be confounded with the Persarmenian. Procopius styles him (see Goth. l. ii. c. 13); Paul Warnefrid, (l. ii. c. 3, p. 776,) Chartularius: Marcellinus adds the name of Cubicularius. In an inscription on the Salarian bridge he is entitled Ex-consul, Ex-praepositus, Cubiculi Patricius, (Mascou, Hist. of the Germans, l. xiii. c. 25.) The law of Theodosius against ennuchs was obsolete or abolished, Annotation xx.,) but the foolish prophecy of the Romans subsisted in full vigor, (Procop. l. iv. c. 21.)

Note: Lord Mahon supposes them both to have been Persarmenians. Note, p. 256. - M.]

[Footnote 31: Paul Warnefrid, the Lombard, records with complacency the succor, service, and honorable dismission of his countrymen - reipublicae Romanae adversus aemulos adjutores fuerant, (l. ii. c. i. p. 774, edit. Grot.) I am surprised that Alboin, their martial king, did not lead his subjects in person.

Note: The Lombards were still at war with the Gepidae. See Procop. Goth. lib. iv. p. 25. - M.]

[Footnote !!: Gibbon has blindly followed the translation of Maltretus: Bis mille ducentos - while the original Greek says expressly something else, (Goth. lib. iv. c. 26.) In like manner, (p. 266,) he draws volunteers from Germany, on the authority of Cousin, who, in one place, has mistaken Germanus for Germania. Yet only a few pages further we find Gibbon loudly condemning the French and Latin readers of Procopius. Lord Mahon, p. 403. The first of these errors remains uncorrected in the new edition of the Byzantines. - M.] [Footnote 32: He was, if not an impostor, the son of the blind Zames, saved by compassion, and educated in the Byzantine court by the various motives of policy, pride, and generosity, (Procop. Persic. l. i. c. 23.)] [Footnote 33: In the time of Augustus, and in the middle ages, the whole waste from Aquileia to Ravenna was covered with woods, lakes, and morasses. Man has subdued nature, and the land has been cultivated since the waters are confined and embanked. See the learned researches of Muratori, (Antiquitat. Italiae Medii Aevi. tom. i. dissert xxi. p. 253, 254,) from Vitruvius, Strabo, Herodian, old charters, and local knowledge.]

The prudence of Narses impelled him to speedy and decisive action. His powers were the last effort of the state; the cost of each day accumulated the enormous account; and the nations, untrained to discipline or fatigue, might be rashly provoked to turn their arms against each other, or against their benefactor. The same considerations might have tempered the ardor of Totila. But he was conscious that the clergy and people of Italy aspired to a second revolution: he felt or suspected the rapid progress of treason; and he resolved to risk the Gothic kingdom on the chance of a day, in which the valiant would be animated by instant danger and the disaffected might be awed by mutual ignorance. In his march from Ravenna, the Roman general chastised the garrison of Rimini, traversed in a direct line the hills of Urbino, and reentered the Flaminian way, nine miles beyond the perforated rock, an obstacle of art and nature which might have stopped or retarded his progress. ^34 The Goths were assembled in the neighborhood of Rome, they advanced without delay to seek a superior enemy, and the two armies approached each other at the distance of one hundred furlongs, between Tagina ^35 and the sepulchres of the Gauls. ^36 The haughty message of Narses was an offer, not of peace, but of pardon. The answer of the Gothic king declared his resolution to die or conquer. “What day,” said the messenger, “will you fix for the combat?” “The eighth day,” replied Totila; but early the next morning he attempted to surprise a foe, suspicious of deceit, and prepared for battle. Ten thousand Heruli and Lombards, of approved valor and doubtful faith, were placed in the centre. Each of the wings was composed of eight thousand Romans; the right was guarded by the cavalry of the Huns, the left was covered by fifteen hundred chosen horse, destined, according to the emergencies of action, to sustain the retreat of their friends, or to encompass the flank of the enemy. From his proper station at the head of the right wing, the eunuch rode along the line, expressing by his voice and countenance the assurance of victory; exciting the soldiers of the emperor to punish the guilt and madness of a band of robbers; and exposing to their view gold chains, collars, and bracelets, the rewards of military virtue. From the event of a single combat they drew an omen of success; and they beheld with pleasure the courage of fifty archers, who maintained a small eminence against three successive attacks of the Gothic cavalry. At the distance only of two bow-shots, the armies spent the morning in dreadful suspense, and the Romans tasted some necessary food, without unloosing the cuirass from their breast, or the bridle from their horses. Narses awaited the charge; and it was delayed by Totila till he had received his last succors of two thousand Goths. While he consumed the hours in fruitless treaty, the king exhibited in a narrow space the strength and agility of a warrior. His armor was enchased with gold; his purple banner floated with the wind: he cast his lance into the air; caught it with the right hand; shifted it to the left; threw himself backwards; recovered his seat; and managed a fiery steed in all the paces and evolutions of the equestrian school. As soon as the succors had arrived, he retired to his tent, assumed the dress and arms of a private soldier, and gave the signal of a battle. The first line of cavalry advanced with more courage than discretion, and left behind them the infantry of the second line. They were soon engaged between the horns of a crescent, into which the adverse wings had been insensibly curved, and were saluted from either side by the volleys of four thousand archers. Their ardor, and even their distress, drove them forwards to a close and unequal conflict, in which they could only use their lances against an enemy equally skilled in all the instruments of war. A generous emulation inspired the Romans and their Barbarian allies; and Narses, who calmly viewed and directed their efforts, doubted to whom he should adjudge the prize of superior bravery. The Gothic cavalry was astonished and disordered, pressed and broken; and the line of infantry, instead of presenting their spears, or opening their intervals, were trampled under the feet of the flying horse. Six thousand of the Goths were slaughtered without mercy in the field of Tagina. Their prince, with five attendants, was overtaken by Asbad, of the race of the Gepidae. “Spare the king of Italy,” ^* cried a loyal voice, and Asbad struck his lance through the body of Totila. The blow was instantly revenged by the faithful Goths: they transported their dying monarch seven miles beyond the scene of his disgrace; and his last moments were not imbittered by the presence of an enemy. Compassion afforded him the shelter of an obscure tomb; but the Romans were not satisfied of their victory, till they beheld the corpse of the Gothic king. His hat, enriched with gems, and his bloody robe, were presented to Justinian by the messengers of triumph. ^37

[Footnote 34: The Flaminian way, as it is corrected from the Itineraries, and the best modern maps, by D'Anville, (Analyse de l'Italie, p. 147 - 162,) may be thus stated: Rome to Narni, 51 Roman miles; Terni, 57; Spoleto, 75; Foligno, 88; Nocera, 103; Cagli, 142; Intercisa, 157; Fossombrone, 160; Fano, 176; Pesaro, 184; Rimini, 208 - about 189 English miles. He takes no notice of the death of Totila; but West selling (Itinerar. p. 614) exchanges, for the field of Taginas, the unknown appellation of Ptanias, eight miles from Nocera.]

[Footnote 35: Taginae, or rather Tadinae, is mentioned by Pliny; but the bishopric of that obscure town, a mile from Gualdo, in the plain, was united, in the year 1007, with that of Nocera. The signs of antiquity are preserved in the local appellations, Fossato, the camp; Capraia, Caprea; Bastia, Busta Gallorum. See Cluverius, (Italia Antiqua, l. ii. c. 6, p. 615, 616, 617,) Lucas Holstenius, (Annotat. ad Cluver. p. 85, 86,) Guazzesi, (Dissertat. p. 177 - 217, a professed inquiry,) and the maps of the ecclesiastical state and the march of Ancona, by Le Maire and Magini.]

[Footnote 36: The battle was fought in the year of Rome 458; and the consul Decius, by devoting his own life, assured the triumph of his country and his colleague Fabius, (T. Liv. x. 28, 29.) Procopius ascribes to Camillus the victory of the Busta Gallorum; and his error is branded by Cluverius with the national reproach of Graecorum nugamenta.]

[Footnote *: “Dog, wilt thou strike thy Lord?” was the more characteristic exclamation of the Gothic youth. Procop. lib. iv. p. 32. - M.] [Footnote 37: Theophanes, Chron. p. 193. Hist. Miscell. l. xvi. p. 108.] As soon as Narses had paid his devotions to the Author of victory, and the blessed Virgin, his peculiar patroness, ^38 he praised, rewarded, and dismissed the Lombards. The villages had been reduced to ashes by these valiant savages; they ravished matrons and virgins on the altar; their retreat was diligently watched by a strong detachment of regular forces, who prevented a repetition of the like disorders. The victorious eunuch pursued his march through Tuscany, accepted the submission of the Goths, heard the acclamations, and often the complaints, of the Italians, and encompassed the walls of Rome with the remainder of his formidable host. Round the wide circumference, Narses assigned to himself, and to each of his lieutenants, a real or a feigned attack, while he silently marked the place of easy and unguarded entrance. Neither the fortifications of Hadrian's mole, nor of the port, could long delay the progress of the conqueror; and Justinian once more received the keys of Rome, which, under his reign, had been five times taken and recovered. ^39 But the deliverance of Rome was the last calamity of the Roman people. The Barbarian allies of Narses too frequently confounded the privileges of peace and war. The despair of the flying Goths found some consolation in sanguinary revenge; and three hundred youths of the noblest families, who had been sent as hostages beyond the Po, were inhumanly slain by the successor of Totila. The fate of the senate suggests an awful lesson of the vicissitude of human affairs. Of the senators whom Totila had banished from their country, some were rescued by an officer of Belisarius, and transported from Campania to Sicily; while others were too guilty to confide in the clemency of Justinian, or too poor to provide horses for their escape to the sea-shore. Their brethren languished five years in a state of indigence and exile: the victory of Narses revived their hopes; but their premature return to the metropolis was prevented by the furious Goths; and all the fortresses of Campania were stained with patrician ^40 blood. After a period of thirteen centuries, the institution of Romulus expired; and if the nobles of Rome still assumed the title of senators, few subsequent traces can be discovered of a public council, or constitutional order. Ascend six hundred years, and contemplate the kings of the earth soliciting an audience, as the slaves or freedmen of the Roman senate! ^41

[Footnote 38: Evagrius, l. iv. c. 24. The inspiration of the Virgin revealed to Narses the day, and the word, of battle, (Paul Diacon. l. ii. c. 3, p. 776)]

[Footnote 39: (Procop. Goth. lib. iv. p. 33.)]

In the year 536 by Belisarius, in 546 by Totila, in 547 by Belisarius, in 549 by Totila, and in 552 by Narses. Maltretus had inadvertently translated sextum; a mistake which he afterwards retracts; out the mischief was done; and Cousin, with a train of French and Latin readers, have fallen into the snare.] [Footnote 40: Compare two passages of Procopius, (l. iii. c. 26, l. iv. c. 24,) which, with some collateral hints from Marcellinus and Jornandes, illustrate the state of the expiring senate.]

[Footnote 41: See, in the example of Prusias, as it is delivered in the fragments of Polybius, (Excerpt. Legat. xcvii. p. 927, 928,) a curious picture of a royal slave.]

The Gothic war was yet alive. The bravest of the nation retired beyond the Po; and Teias was unanimously chosen to succeed and revenge their departed hero. The new king immediately sent ambassadors to implore, or rather to purchase, the aid of the Franks, and nobly lavished, for the public safety, the riches which had been deposited in the palace of Pavia. The residue of the royal treasure was guarded by his brother Aligern, at Cumaea, in Campania; but the strong castle which Totila had fortified was closely besieged by the arms of Narses. From the Alps to the foot of Mount Vesuvius, the Gothic king, by rapid and secret marches, advanced to the relief of his brother, eluded the vigilance of the Roman chiefs, and pitched his camp on the banks of the Sarnus or Draco, ^42 which flows from Nuceria into the Bay of Naples. The river separated the two armies: sixty days were consumed in distant and fruitless combats, and Teias maintained this important post till he was deserted by his fleet and the hope of subsistence. With reluctant steps he ascended the Lactarian mount, where the physicians of Rome, since the time of Galen, had sent their patients for the benefit of the air and the milk. ^43 But the Goths soon embraced a more generous resolution: to descend the hill, to dismiss their horses, and to die in arms, and in the possession of freedom. The king marched at their head, bearing in his right hand a lance, and an ample buckler in his left: with the one he struck dead the foremost of the assailants; with the other he received the weapons which every hand was ambitious to aim against his life. After a combat of many hours, his left arm was fatigued by the weight of twelve javelins which hung from his shield. Without moving from his ground, or suspending his blows, the hero called aloud on his attendants for a fresh buckler; but in the moment while his side was uncovered, it was pierced by a mortal dart. He fell; and his head, exalted on a spear, proclaimed to the nations that the Gothic kingdom was no more. But the example of his death served only to animate the companions who had sworn to perish with their leader. They fought till darkness descended on the earth. They reposed on their arms. The combat was renewed with the return of light, and maintained with unabated vigor till the evening of the second day. The repose of a second night, the want of water, and the loss of their bravest champions, determined the surviving Goths to accept the fair capitulation which the prudence of Narses was inclined to propose. They embraced the alternative of residing in Italy, as the subjects and soldiers of Justinian, or departing with a portion of their private wealth, in search of some independent country. ^44 Yet the oath of fidelity or exile was alike rejected by one thousand Goths, who broke away before the treaty was signed, and boldly effected their retreat to the walls of Pavia. The spirit, as well as the situation, of Aligern prompted him to imitate rather than to bewail his brother: a strong and dexterous archer, he transpierced with a single arrow the armor and breast of his antagonist; and his military conduct defended Cumae ^45 above a year against the forces of the Romans. Their industry had scooped the Sibyl's cave ^46 into a prodigious mine; combustible materials were introduced to consume the temporary props: the wall and the gate of Cumae sunk into the cavern, but the ruins formed a deep and inaccessible precipice. On the fragment of a rock Aligern stood alone and unshaken, till he calmly surveyed the hopeless condition of his country, and judged it more honorable to be the friend of Narses, than the slave of the Franks. After the death of Teias, the Roman general separated his troops to reduce the cities of Italy; Lucca sustained a long and vigorous siege: and such was the humanity or the prudence of Narses, that the repeated perfidy of the inhabitants could not provoke him to exact the forfeit lives of their hostages. These hostages were dismissed in safety; and their grateful zeal at length subdued the obstinacy of their countrymen. ^47

[Footnote 42: The item of Procopius (Goth. l. iv. c. 35) is evidently the Sarnus. The text is accused or altered by the rash violence of Cluverius (l. iv. c. 3. p. 1156:) but Camillo Pellegrini of Naples (Discorsi sopra la Campania Felice, p. 330, 331) has proved from old records, that as early as the year 822 that river was called the Dracontio, or Draconcello.] [Footnote 43: Galen (de Method. Medendi, l. v. apud Cluver. l. iv. c. 3, p. 1159, 1160) describes the lofty site, pure air, and rich milk, of Mount Lactarius, whose medicinal benefits were equally known and sought in the time of Symmachus (l. vi. epist. 18) and Cassiodorus, (Var. xi. 10.) Nothing is now left except the name of the town of Lettere.]

[Footnote 44: Buat (tom. xi. p. 2, &c.) conveys to his favorite Bavaria this remnant of Goths, who by others are buried in the mountains of Uri, or restored to their native isle of Gothland, (Mascou, Annot. xxi.)] [Footnote 45: I leave Scaliger (Animadvers. in Euseb. p. 59) and Salmasius (Exercitat. Plinian. p. 51, 52) to quarrel about the origin of Cumae, the oldest of the Greek colonies in Italy, (Strab. l. v. p. 372, Velleius Paterculus, l. i. c. 4,) already vacant in Juvenal's time, (Satir. iii.,) and now in ruins.]

[Footnote 46: Agathias (l. i. c. 21) settles the Sibyl's cave under the wall of Cumae: he agrees with Servius, (ad. l. vi. Aeneid.;) nor can I perceive why their opinion should be rejected by Heyne, the excellent editor of Virgil, (tom. ii. p. 650, 651.) In urbe media secreta religio! But Cumae was not yet built; and the lines (l. vi. 96, 97) would become ridiculous, if Aeneas were actually in a Greek city.]

[Footnote 47: There is some difficulty in connecting the 35th chapter of the fourth book of the Gothic war of Procopius with the first book of the history of Agathias. We must now relinquish the statesman and soldier, to attend the footsteps of a poet and rhetorician, (l. i. p. 11, l. ii. p. 51, edit. Lonvre.)]

Before Lucca had surrendered, Italy was overwhelmed by a new deluge of Barbarians. A feeble youth, the grandson of Clovis, reigned over the Austrasians or oriental Franks. The guardians of Theodebald entertained with coldness and reluctance the magnificent promises of the Gothic ambassadors. But the spirit of a martial people outstripped the timid counsels of the court: two brothers, Lothaire and Buccelin, ^48 the dukes of the Alemanni, stood forth as the leaders of the Italian war; and seventy-five thousand Germans descended in the autumn from the Rhaetian Alps into the plain of Milan. The vanguard of the Roman army was stationed near the Po, under the conduct of Fulcaris, a bold Herulian, who rashly conceived that personal bravery was the sole duty and merit of a commander. As he marched without order or precaution along the Aemilian way, an ambuscade of Franks suddenly rose from the amphitheatre of Parma; his troops were 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.)]

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.]

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.]

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 extant in the Code, and with his father 160. These two princes are quoted fifty times in the Pandects, and eight in the Institutes, (Terasson, p. 265.)] [Footnote 45: Plin. Secund. Epistol. x. 66. Sueton. in Domitian. c. 23.] [Footnote 46: It was a maxim of Constantine, contra jus rescripta non valeant, (Cod. Theodos. l. i. tit. ii. leg. 1.) The emperors reluctantly allow some scrutiny into the law and the fact, some delay, petition, &c.; but these insufficient remedies are too much in the discretion and at the peril of the judge.]

[Footnote 47: A compound of vermilion and cinnabar, which marks the Imperial diplomas from Leo I. (A.D. 470) to the fall of the Greek empire, (Bibliotheque Raisonnee de la Diplomatique, tom. i. p. 504 - 515 Lami, de Eruditione Apostolorum, tom. ii. p. 720 - 726.)]

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

1. The writings of the jurists, according to the regulations of the Constitution of Valentinian III., first promulgated in the West, but by its admission into the Theodosian Code established likewise in the East. (This Constitution established the authority of the five great jurists, Papinian, Paulus, Caius, Ulpian, and Modestinus as interpreters of the ancient law. * * * In case of difference of opinion among these five, a majority decided the case; where they were equal, the opinion of Papinian, where he was silent, the judge; but see p. 40, and Hugo, vol. ii. p. 89.)

2. The Gregorian and Hermogenian Collection of the Imperial Rescripts. 3. The Code of Theodosius II.

4. The particular Novellae, as additions and Supplements to this Code Savigny. vol. i. p 10. - M.]

[Footnote 48: Schulting, Jurisprudentia Ante-Justinianea, p. 681 - 718. Cujacius assigned to Gregory the reigns from Hadrian to Gallienus. and the continuation to his fellow-laborer Hermogenes. This general division may be just, but they often trespassed on each other's ground]

Among savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage- life was denoted by the necessary elements of fire and water; ^49 and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clinched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and scales were introduced into every payment, and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap or dance with real or affected transport. ^50 If a citizen pursued any stolen goods into a neighbor's house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should encounter the eyes of a virgin or a matron. ^51 In a civil action the plaintiff touched the ear of his witness, seized his reluctant adversary by the neck, and implored, in solemn lamentation, the aid of his fellow-citizens. The two competitors grasped each other's hand as if they stood prepared for combat before the tribunal of the praetor; he commanded them to produce the object of the dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended. This occult science of the words and actions of law was the inheritance of the pontiffs and patricians. Like the Chaldean astrologers, they announced to their clients the days of business and repose; these important trifles were interwoven with the religion of Numa; and after the publication of the Twelve Tables, the Roman people was still enslaved by the ignorance of judicial proceedings. The treachery of some plebeian officers at length revealed the profitable mystery: in a more enlightened age, the legal actions were derided and observed; and the same antiquity which sanctified the practice, obliterated the use and meaning of this primitive language. ^52

[Footnote 49: Scaevola, most probably Q. Cervidius Scaevola; the master of Papinian considers this acceptance of fire and water as the essence of marriage, (Pandect. l. xxiv. tit. 1, leg. 66. See Heineccius, Hist. J. R. No. 317.)]

[Footnote 50: Cicero (de Officiis, iii. 19) may state an ideal case, but St. Am brose (de Officiis, iii. 2,) appeals to the practice of his own times, which he understood as a lawyer and a magistrate, (Schulting ad Ulpian, Fragment. tit. xxii. No. 28, p. 643, 644.)

Note: In this passage the author has endeavored to collect all the examples of judicial formularies which he could find. That which he adduces as the form of cretio haereditatis is absolutely false. It is sufficient to glance at the passage in Cicero which he cites, to see that it has no relation to it. The author appeals to the opinion of Schulting, who, in the passage quoted, himself protests against the ridiculous and absurd interpretation of the passage in Cicero, and observes that Graevius had already well explained the real sense. See in Gaius the form of cretio haereditatis Inst. l. ii. p. 166. - W.]

[Footnote 51: The furtum lance licioque conceptum was no longer understood in the time of the Antonines, (Aulus Gellius, xvi. 10.) The Attic derivation of Heineccius, (Antiquitat. Rom. l. iv. tit. i. No. 13 - 21) is supported by the evidence of Aristophanes, his scholiast, and Pollux.

Note: Nothing more is known of this ceremony; nevertheless we find that already in his own days Gaius turned it into ridicule. He says, (lib. iii. et p. 192, Sections 293,) prohibiti actio quadrupli ex edicto praetoris introducta est; lex autem eo nomine nullam poenam constituit. Hoc solum praecepit, ut qui quaerere velit, nudus quaerat, linteo cinctus, lancem habens; qui si quid invenerit. jubet id lex furtum manifestum esse. Quid sit autem linteum? quaesitum est. Sed verius est consuti genus esse, quo necessariae partes tegerentur. Quare lex tota ridicula est. Nam qui vestitum quaerere prohibet, is et nudum quaerere prohibiturus est; eo magis, quod invenerit ibi imponat, neutrum eorum procedit, si id quod quaeratur, ejus magnitudinis aut naturae sit ut neque subjici, neque ibi imponi possit. Certe non dubitatur, cujuscunque materiae sit ea lanx, satis legi fieri. We see moreover, from this passage, that the basin, as most authors, resting on the authority of Festus, have supposed, was not used to cover the figure. - W. Gibbon says the face, though equally inaccurately. This passage of Gaius, I must observe, as well as others in M. Warnkonig's work, is very inaccurately printed. - M.]

[Footnote 52: In his Oration for Murena, (c. 9 - 13,) Cicero turns into ridicule the forms and mysteries of the civilians, which are represented with more candor by Aulus Gellius, (Noct. Attic. xx. 10,) Gravina, (Opp p. 265, 266, 267,) and Heineccius, (Antiquitat. l. iv. tit. vi.)

Note: Gibbon had conceived opinions too decided against the forms of procedure in use among the Romans. Yet it is on these solemn forms that the certainty of laws has been founded among all nations. Those of the Romans were very intimately allied with the ancient religion, and must of necessity have disappeared as Rome attained a higher degree of civilization. Have not modern nations, even the most civilized, overloaded their laws with a thousand forms, often absurd, almost always trivial? How many examples are afforded by the English law! See, on the nature of these forms, the work of M. de Savigny on the Vocation of our Age for Legislation and Jurisprudence, Heidelberg, 1814, p. 9, 10. - W. This work of M. Savigny has been translated into English by Mr. Hayward. - M.]

A more liberal art was cultivated, however, by the sage of Rome, who, in a stricter sense, may be considered as the authors of the civil law. The alteration of the idiom and manners of the Romans rendered the style of the Twelve Tables less familiar to each rising generation, and the doubtful passages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circumscribe the latitude, to apply the principles, to extend the consequences, to reconcile the real or apparent contradictions, was a much nobler and more important task; and the province of legislation was silently invaded by the expounders of ancient statutes. Their subtle interpretations concurred with the equity of the praetor, to reform the tyranny of the darker ages: however strange or intricate the means, it was the aim of artificial jurisprudence to restore the simple dictates of nature and reason, and the skill of private citizens was usefully employed to undermine the public institutions of their country. ^! The revolution of almost one thousand years, from the Twelve Tables to the reign of Justinian, may be divided into three periods, almost equal in duration, and distinguished from each other by the mode of instruction and the character of the civilians. ^53 Pride and ignorance contributed, during the first period, to confine within narrow limits the science of the Roman law. On the public days of market or assembly, the masters of the art were seen walking in the forum ready to impart the needful advice to the meanest of their fellow-citizens, from whose votes, on a future occasion, they might solicit a grateful return. As their years and honors increased, they seated themselves at home on a chair or throne, to expect with patient gravity the visits of their clients, who at the dawn of day, from the town and country, began to thunder at their door. The duties of social life, and the incidents of judicial proceeding, were the ordinary subject of these consultations, and the verbal or written opinion of the juris-consults was framed according to the rules of prudence and law. The youths of their own order and family were permitted to listen; their children enjoyed the benefit of more private lessons, and the Mucian race was long renowned for the hereditary knowledge of the civil law. The second period, the learned and splendid age of jurisprudence, may be extended from the birth of Cicero to the reign of Severus Alexander. A system was formed, schools were instituted, books were composed, and both the living and the dead became subservient to the instruction of the student. The tripartite of Aelius Paetus, surnamed Catus, or the Cunning, was preserved as the oldest work of Jurisprudence. Cato the censor derived some additional fame from his legal studies, and those of his son: the kindred appellation of Mucius Scaevola was illustrated by three sages of the law; but the perfection of the science was ascribed to Servius Sulpicius, their disciple, and the friend of Tully; and the long succession, which shone with equal lustre under the republic and under the Caesars, is finally closed by the respectable characters of Papinian, of Paul, and of Ulpian. Their names, and the various titles of their productions, have been minutely preserved, and the example of Labeo may suggest some idea of their diligence and fecundity. That eminent lawyer of the Augustan age divided the year between the city and country, between business and composition; and four hundred books are enumerated as the fruit of his retirement. Of the collection of his rival Capito, the two hundred and fifty-ninth book is expressly quoted; and few teachers could deliver their opinions in less than a century of volumes. In the third period, between the reigns of Alexander and Justinian, the oracles of jurisprudence were almost mute. The measure of curiosity had been filled: the throne was occupied by tyrants and Barbarians, the active spirits were diverted by religious disputes, and the professors of Rome, Constantinople, and Berytus, were humbly content to repeat the lessons of their more enlightened predecessors. From the slow advances and rapid decay of these legal studies, it may be inferred, that they require a state of peace and refinement. From the multitude of voluminous civilians who fill the intermediate space, it is evident that such studies may be pursued, and such works may be performed, with a common share of judgment, experience, and industry. The genius of Cicero and Virgil was more sensibly felt, as each revolving age had been found incapable of producing a similar or a second: but the most eminent teachers of the law were assured of leaving disciples equal or superior to themselves in merit and reputation.

[Footnote !: Compare, on the Responsa Prudentum, Warnkonig, Histoire Externe du Droit Romain Bruxelles, 1836, p. 122. - M.]

[Footnote 53: The series of the civil lawyers is deduced by Pomponius, (de Origine Juris Pandect. l. i. tit. ii.) The moderns have discussed, with learning and criticism, this branch of literary history; and among these I have chiefly been guided by Gravina (p. 41 - 79) and Hei neccius, (Hist. J. R. No. 113 - 351.) Cicero, more especially in his books de Oratore, de Claris Oratoribus, de Legibus, and the Clavie Ciceroniana of Ernesti (under the names of Mucius, &c.) afford much genuine and pleasing information. Horace often alludes to the morning labors of the civilians, (Serm. I. i. 10, Epist. II. i. 103, &c)

Agricolam laudat juris legumque peritus Sub galli cantum, consultor ubi ostia pulsat.

- - - - - - - -

Romae dulce diu fuit et solemne, reclusa Mane domo vigilare, clienti promere jura.

Note: It is particularly in this division of the history of the Roman jurisprudence into epochs, that Gibbon displays his profound knowledge of the laws of this people. M. Hugo, adopting this division, prefaced these three periods with the history of the times anterior to the Law of the Twelve Tables, which are, as it were, the infancy of the Roman law. - W] The jurisprudence which had been grossly adapted to the wants of the first Romans, was polished and improved in the seventh century of the city, by the alliance of Grecian philosophy. The Scaevolas had been taught by use and experience; but Servius Sulpicius ^* was the first civilian who established his art on a certain and general theory. ^54 For the discernment of truth and falsehood he applied, as an infallible rule, the logic of Aristotle and the stoics, reduced particular cases to general principles, and diffused over the shapeless mass the light of order and eloquence. Cicero, his contemporary and friend, declined the reputation of a professed lawyer; but the jurisprudence of his country was adorned by his incomparable genius, which converts into gold every object that it touches. After the example of Plato, he composed a republic; and, for the use of his republic, a treatise of laws; in which he labors to deduce from a celestial origin the wisdom and justice of the Roman constitution. The whole universe, according to his sublime hypothesis, forms one immense commonwealth: gods and men, who participate of the same essence, are members of the same community; reason prescribes the law of nature and nations; and all positive institutions, however modified by accident or custom, are drawn from the rule of right, which the Deity has inscribed on every virtuous mind. From these philosophical mysteries, he mildly excludes the sceptics who refuse to believe, and the epicureans who are unwilling to act. The latter disdain the care of the republic: he advises them to slumber in their shady gardens. But he humbly entreats that the new academy would be silent, since her bold objections would too soon destroy the fair and well ordered structure of his lofty system. ^55 Plato, Aristotle, and Zeno, he represents as the only teachers who arm and instruct a citizen for the duties of social life. Of these, the armor of the stoics ^56 was found to be of the firmest temper; and it was chiefly worn, both for use and ornament, in the schools of jurisprudence. From the portico, the Roman civilians learned to live, to reason, and to die: but they imbibed in some degree the prejudices of the sect; the love of paradox, the pertinacious habits of dispute, and a minute attachment to words and verbal distinctions. The superiority of form to matter was introduced to ascertain the right of property: and the equality of crimes is countenanced by an opinion of Trebatius, ^57 that he who touches the ear, touches the whole body; and that he who steals from a heap of corn, or a hogshead of wine, is guilty of the entire theft. ^58

[Footnote *: M. Hugo thinks that the ingenious system of the Institutes adopted by a great number of the ancient lawyers, and by Justinian himself, dates from Severus Sulpicius. Hist du Droit Romain, vol.iii.p. 119. - W.] [Footnote 54: Crassus, or rather Cicero himself, proposes (de Oratore, i. 41, 42) an idea of the art or science of jurisprudence, which the eloquent, but illiterate, Antonius (i. 58) affects to deride. It was partly executed by Servius Sulpicius, (in Bruto, c. 41,) whose praises are elegantly varied in the classic Latinity of the Roman Gravina, (p. 60.)]

[Footnote 55: Perturbatricem autem omnium harum rerum academiam, hanc ab Arcesila et Carneade recentem, exoremus ut sileat, nam si invaserit in haec, quae satis scite instructa et composita videantur, nimis edet ruinas, quam quidem ego placare cupio, submovere non audeo. (de Legibus, i. 13.) From this passage alone, Bentley (Remarks on Free-thinking, p. 250) might have learned how firmly Cicero believed in the specious doctrines which he has adorned.] [Footnote 56: The stoic philosophy was first taught at Rome by Panaetius, the friend of the younger Scipio, (see his life in the Mem. de l'Academis des Inscriptions, tom. x. p. 75 - 89.)]

[Footnote 57: As he is quoted by Ulpian, (leg.40, 40, ad Sabinum in Pandect. l. xlvii. tit. ii. leg. 21.) Yet Trebatius, after he was a leading civilian, que qui familiam duxit, became an epicurean, (Cicero ad Fam. vii. 5.) Perhaps he was not constant or sincere in his new sect.

Note: Gibbon had entirely misunderstood this phrase of Cicero. It was only since his time that the real meaning of the author was apprehended. Cicero, in enumerating the qualifications of Trebatius, says, Accedit etiam, quod familiam ducit in jure civili, singularis memoria, summa scientia, which means that Trebatius possessed a still further most important qualification for a student of civil law, a remarkable memory, &c. This explanation, already conjectured by G. Menage, Amaenit. Juris Civilis, c. 14, is found in the dictionary of Scheller, v. Familia, and in the History of the Roman Law by M. Hugo. Many authors have asserted, without any proof sufficient to warrant the conjecture, that Trebatius was of the school of Epicurus - W.] [Footnote 58: See Gravina (p. 45 - 51) and the ineffectual cavils of Mascou. Heineccius (Hist. J. R. No. 125) quotes and approves a dissertation of Everard Otto, de Stoica Jurisconsultorum Philosophia.]

Arms, eloquence, and the study of the civil law, promoted a citizen to the honors of the Roman state; and the three professions were sometimes more conspicuous by their union in the same character. In the composition of the edict, a learned praetor gave a sanction and preference to his private sentiments; the opinion of a censor, or a counsel, was entertained with respect; and a doubtful interpretation of the laws might be supported by the virtues or triumphs of the civilian. The patrician arts were long protected by the veil of mystery; and in more enlightened times, the freedom of inquiry established the general principles of jurisprudence. Subtile and intricate cases were elucidated by the disputes of the forum: rules, axioms, and definitions, ^59 were admitted as the genuine dictates of reason; and the consent of the legal professors was interwoven into the practice of the tribunals. But these interpreters could neither enact nor execute the laws of the republic; and the judges might disregard the authority of the Scaevolas themselves, which was often overthrown by the eloquence or sophistry of an ingenious pleader. ^60 Augustus and Tiberius were the first to adopt, as a useful engine, the science of the civilians; and their servile labors accommodated the old system to the spirit and views of despotism. Under the fair pretence of securing the dignity of the art, the privilege of subscribing legal and valid opinions was confined to the sages of senatorian or equestrian rank, who had been previously approved by the judgment of the prince; and this monopoly prevailed, till Adrian restored the freedom of the profession to every citizen conscious of his abilities and knowledge. The discretion of the praetor was now governed by the lessons of his teachers; the judges were enjoined to obey the comment as well as the text of the law; and the use of codicils was a memorable innovation, which Augustus ratified by the advice of the civilians. ^61 ^*

[Footnote 59: We have heard of the Catonian rule, the Aquilian stipulation, and the Manilian forms, of 211 maxims, and of 247 definitions, (Pandect. l. i. tit. xvi. xvii.)]

[Footnote 60: Read Cicero, l. i. de Oratore, Topica, pro Murena.] [Footnote 61: See Pomponius, (de Origine Juris Pandect. l. i. tit. ii. leg. 2, No 47,) Heineccius, (ad Institut. l. i. tit. ii. No. 8, l. ii. tit. xxv. in Element et Antiquitat.,) and Gravina, (p. 41 - 45.) Yet the monopoly of Augustus, a harsh measure, would appear with some softening in contemporary evidence; and it was probably veiled by a decree of the senate] [Footnote *: The author here follows the then generally received opinion of Heineccius. The proofs which appear to confirm it are l. 2, 47, D. I. 2, and 8. Instit. I. 2. The first of these passages speaks expressly of a privilege granted to certain lawyers, until the time of Adrian, publice respondendi jus ante Augusti tempora non dabatur. Primus Divus Augustus, ut major juris auctoritas haberetur, constituit, ut ex auctoritate ejus responderent. The passage of the Institutes speaks of the different opinions of those, quibus est permissum jura condere. It is true that the first of these passages does not say that the opinion of these privileged lawyers had the force of a law for the judges. For this reason M. Hugo altogether rejects the opinion adopted by Heineccius, by Bach, and in general by all the writers who preceded him. He conceives that the 8 of the Institutes referred to the constitution of Valentinian III., which regulated the respective authority to be ascribed to the different writings of the great civilians. But we have now the following passage in the Institutes of Gaius: Responsa prudentum sunt sententiae et opiniones eorum, quibus permissum est jura condere; quorum omnium si in unum sententiae concorrupt, id quod ita sentiunt, legis vicem obtinet, si vero dissentiunt, judici licet, quam velit sententiam sequi, idque rescripto Divi Hadrian signiticatur. I do not know, how in opposition to this passage, the opinion of M. Hugo can be maintained. We must add to this the passage quoted from Pomponius and from such strong proofs, it seems incontestable that the emperors had granted some kind of privilege to certain civilians, quibus permissum erat jura condere. Their opinion had sometimes the force of law, legis vicem. M. Hugo, endeavoring to reconcile this phrase with his system, gives it a forced interpretation, which quite alters the sense; he supposes that the passage contains no more than what is evident of itself, that the authority of the civilians was to be respected, thus making a privilege of that which was free to all the world. It appears to me almost indisputable, that the emperors had sanctioned certain provisions relative to the authority of these civilians, consulted by the judges. But how far was their advice to be respected? This is a question which it is impossible to answer precisely, from the want of historic evidence. Is it not possible that the emperors established an authority to be consulted by the judges? and in this case this authority must have emanated from certain civilians named for this purpose by the emperors. See Hugo, l. c. Moreover, may not the passage of Suetonius, in the Life of Caligula, where he says that the emperor would no longer permit the civilians to give their advice, mean that Caligula entertained the design of suppressing this institution? See on this passage the Themis, vol. xi. p. 17, 36. Our author not being acquainted with the opinions opposed to Heineccius has not gone to the bottom of the subject. - W.]

The most absolute mandate could only require that the judges should agree with the civilians, if the civilians agreed among themselves. But positive institutions are often the result of custom and prejudice; laws and language are ambiguous and arbitrary; where reason is incapable of pronouncing, the love of argument is inflamed by the envy of rivals, the vanity of masters, the blind attachment of their disciples; and the Roman jurisprudence was divided by the once famous sects of the Proculians and Sabinians. ^62 Two sages of the law, Ateius Capito and Antistius Labeo, ^63 adorned the peace of the Augustan age; the former distinguished by the favor of his sovereign; the latter more illustrious by his contempt of that favor, and his stern though harmless opposition to the tyrant of Rome. Their legal studies were influenced by the various colors of their temper and principles. Labeo was attached to the form of the old republic; his rival embraced the more profitable substance of the rising monarchy. But the disposition of a courtier is tame and submissive; and Capito seldom presumed to deviate from the sentiments, or at least from the words, of his predecessors; while the bold republican pursued his independent ideas without fear of paradox or innovations. The freedom of Labeo was enslaved, however, by the rigor of his own conclusions, and he decided, according to the letter of the law, the same questions which his indulgent competitor resolved with a latitude of equity more suitable to the common sense and feelings of mankind. If a fair exchange had been substituted to the payment of money, Capito still considered the transaction as a legal sale; ^64 and he consulted nature for the age of puberty, without confining his definition to the precise period of twelve or fourteen years. ^65 This opposition of sentiments was propagated in the writings and lessons of the two founders; the schools of Capito and Labeo maintained their inveterate conflict from the age of Augustus to that of Adrian; ^66 and the two sects derived their appellations from Sabinus and Proculus, their most celebrated teachers. The names of Cassians and Pegasians were likewise applied to the same parties; but, by a strange reverse, the popular cause was in the hands of Pegasus, ^67 a timid slave of Domitian, while the favorite of the Caesars was represented by Cassius, ^68 who gloried in his descent from the patriot assassin. By the perpetual edict, the controversies of the sects were in a great measure determined. For that important work, the emperor Adrian preferred the chief of the Sabinians: the friends of monarchy prevailed; but the moderation of Salvius Julian insensibly reconciled the victors and the vanquished. Like the contemporary philosophers, the lawyers of the age of the Antonines disclaimed the authority of a master, and adopted from every system the most probable doctrines. ^69 But their writings would have been less voluminous, had their choice been more unanimous. The conscience of the judge was perplexed by the number and weight of discordant testimonies, and every sentence that his passion or interest might pronounce was justified by the sanction of some venerable name. An indulgent edict of the younger Theodosius excused him from the labor of comparing and weighing their arguments. Five civilians, Caius, Papinian, Paul, Ulpian, and Modestinus, were established as the oracles of jurisprudence: a majority was decisive: but if their opinions were equally divided, a casting vote was ascribed to the superior wisdom of Papinian. ^70 [Footnote 62: I have perused the Diatribe of Gotfridus Mascovius, the learned Mascou, de Sectis Jurisconsultorum, (Lipsiae, 1728, in 12mo., p. 276,) a learned treatise on a narrow and barren ground.]

[Footnote 63: See the character of Antistius Labeo in Tacitus, (Annal. iii. 75,) and in an epistle of Ateius Capito, (Aul. Gellius, xiii. 12,) who accuses his rival of libertas nimia et vecors. Yet Horace would not have lashed a virtuous and respectable senator; and I must adopt the emendation of Bentley, who reads Labieno insanior, (Serm. I. iii. 82.) See Mascou, de Sectis, (c. i. p. 1 - 24.)]

[Footnote 64: Justinian (Institut. l. iii. tit. 23, and Theophil. Vers. Graec. p. 677, 680) has commemorated this weighty dispute, and the verses of Homer that were alleged on either side as legal authorities. It was decided by Paul, (leg. 33, ad Edict. in Pandect. l. xviii. tit. i. leg. 1,) since, in a simple exchange, the buyer could not be discriminated from the seller.] [Footnote 65: This controversy was likewise given for the Proculians, to supersede the indecency of a search, and to comply with the aphorism of Hippocrates, who was attached to the septenary number of two weeks of years, or 700 of days, (Institut. l. i. tit. xxii.) Plutarch and the Stoics (de Placit. Philosoph. l. v. c. 24) assign a more natural reason. Fourteen years is the age. See the vestigia of the sects in Mascou, c. ix. p. 145 - 276.] [Footnote 66: The series and conclusion of the sects are described by Mascou, c. ii. - vii. p. 24 - 120;) and it would be almost ridiculous to praise his equal justice to these obsolete sects.

Note: The work of Gaius, subsequent to the time of Adrian, furnishes us with some information on this subject. The disputes which rose between these two sects appear to have been very numerous. Gaius avows himself a disciple of Sabinus and of Caius. Compare Hugo, vol. ii. p. 106. - W.] [Footnote 67: At the first summons he flies to the turbot-council; yet Juvenal (Satir. iv. 75 - 81) styles the praefect or bailiff of Rome sanctissimus legum interpres. From his science, says the old scholiast, he was called, not a man, but a book. He derived the singular name of Pegasus from the galley which his father commanded.]

[Footnote 68: Tacit. Annal. xvii. 7. Sueton. in Nerone, c. xxxvii.] [Footnote 69: Mascou, de Sectis, c. viii. p. 120 - 144 de Herciscundis, a legal term which was applied to these eclectic lawyers: herciscere is synonymous to dividere.

Note: This word has never existed. Cujacius is the author of it, who read me words terris condi in Servius ad Virg. herciscundi, to which he gave an erroneous interpretation. - W.]

[Footnote 70: See the Theodosian Code, l. i. tit. iv. with Godefroy's Commentary, tom. i. p. 30 - 35. ^! This decree might give occasion to Jesuitical disputes like those in the Lettres Provinciales, whether a Judge was obliged to follow the opinion of Papinian, or of a majority, against his judgment, against his conscience, &c. Yet a legislator might give that opinion, however false, the validity, not of truth, but of law. Note: We possess (since 1824) some interesting information as to the framing of the Theodosian Code, and its ratification at Rome, in the year 438. M. Closius, now professor at Dorpat in Russia, and M. Peyron, member of the Academy of Turin, have discovered, the one at Milan, the other at Turin, a great part of the five first books of the Code which were wanting, and besides this, the reports (gesta) of the sitting of the senate at Rome, in which the Code was published, in the year after the marriage of Valentinian III. Among these pieces are the constitutions which nominate commissioners for the formation of the Code; and though there are many points of considerable obscurity in these documents, they communicate many facts relative to this legislation.

1. That Theodosius designed a great reform in the legislation; to add to the Gregorian and Hermogenian codes all the new constitutions from Constantine to his own day; and to frame a second code for common use with extracts from the three codes, and from the works of the civil lawyers. All laws either abrogated or fallen into disuse were to be noted under their proper heads. 2. An Ordinance was issued in 429 to form a commission for this purpose of nine persons, of which Antiochus, as quaestor and praefectus, was president. A second commission of sixteen members was issued in 435 under the same president.

3. A code, which we possess under the name of Codex Theodosianus, was finished in 438, published in the East, in an ordinance addressed to the Praetorian praefect, Florentinus, and intended to be published in the West. 4. Before it was published in the West, Valentinian submitted it to the senate. There is a report of the proceedings of the senate, which closed with loud acclamations and gratulations. - From Warnkonig, Histoire du Droit Romain, p. 169 - Wenck has published this work, Codicis Theodosiani libri priores. Leipzig, 1825. - M.]

Note *: Closius of Tubingen communicated to M.Warnkonig the two following constitutions of the emperor Constantine, which he discovered in the Ambrosian library at Milan: -

1. Imper. Constantinus Aug. ad Maximium Praef. Praetorio. Perpetuas prudentum contentiones eruere cupientes, Ulpiani ac Pauli, in Papinianum notas, qui dum ingenii laudem sectantur, non tam corrigere eum quam depravere maluerunt, aboleri praecepimus. Dat. III. Kalend. Octob. Const. Cons. et Crispi, (321.) Idem. Aug. ad Maximium Praef Praet. Universa, quae scriptura Pauli continentur, recepta auctoritate firmanda runt, et omni veneratione celebranda. Ideoque sententiarum libros plepissima luce et perfectissima elocutione et justissima juris ratione succinctos in judiciis prolatos valere minimie dubitatur. Dat. V. Kalend. Oct. Trovia Coust. et Max. Coss. (327.) - W]

When Justinian ascended the throne, the reformation of the Roman jurisprudence was an arduous but indispensable task. In the space of ten centuries, the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest. Books could not easily be found; and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion. The subjects of the Greek provinces were ignorant of the language that disposed of their lives and properties; and the barbarous dialect of the Latins was imperfectly studied in the academies of Berytus and Constantinople. As an Illyrian soldier, that idiom was familiar to the infancy of Justinian; his youth had been instructed by the lessons of jurisprudence, and his Imperial choice selected the most learned civilians of the East, to labor with their sovereign in the work of reformation. ^71 The theory of professors was assisted by the practice of advocates, and the experience of magistrates; and the whole undertaking was animated by the spirit of Tribonian. ^72 This extraordinary man, the object of so much praise and censure, was a native of Side in Pamphylia; and his genius, like that of Bacon, embraced, as his own, all the business and knowledge of the age. Tribonian composed, both in prose and verse, on a strange diversity of curious and abstruse subjects: ^73 a double panegyric of Justinian and the life of the philosopher Theodotus; the nature of happiness and the duties of government; Homer's catalogue and the four-and-twenty sorts of metre; the astronomical canon of Ptolemy; the changes of the months; the houses of the planets; and the harmonic system of the world. To the literature of Greece he added the use of the Latin tonque; the Roman civilians were deposited in his library and in his mind; and he most assiduously cultivated those arts which opened the road of wealth and preferment. From the bar of the Praetorian praefects, he raised himself to the honors of quaestor, of consul, and of master of the offices: the council of Justinian listened to his eloquence and wisdom; and envy was mitigated by the gentleness and affability of his manners. The reproaches of impiety and avarice have stained the virtue or the reputation of Tribonian. In a bigoted and persecuting court, the principal minister was accused of a secret aversion to the Christian faith, and was supposed to entertain the sentiments of an Atheist and a Pagan, which have been imputed, inconsistently enough, to the last philosophers of Greece. His avarice was more clearly proved and more sensibly felt. If he were swayed by gifts in the administration of justice, the example of Bacon will again occur; nor can the merit of Tribonian atone for his baseness, if he degraded the sanctity of his profession; and if laws were every day enacted, modified, or repealed, for the base consideration of his private emolument. In the sedition of Constantinople, his removal was granted to the clamors, perhaps to the just indignation, of the people: but the quaestor was speedily restored, and, till the hour of his death, he possessed, above twenty years, the favor and confidence of the emperor. His passive and dutiful submission had been honored with the praise of Justinian himself, whose vanity was incapable of discerning how often that submission degenerated into the grossest adulation. Tribonian adored the virtues of his gracious of his gracious master; the earth was unworthy of such a prince; and he affected a pious fear, that Justinian, like Elijah or Romulus, would be snatched into the air, and translated alive to the mansions of celestial glory. ^74

[Footnote 71: For the legal labors of Justinian, I have studied the Preface to the Institutes; the 1st, 2d, and 3d Prefaces to the Pandects; the 1st and 2d Preface to the Code; and the Code itself, (l. i. tit. xvii. de Veteri Jure enucleando.) After these original testimonies, I have consulted, among the moderns, Heineccius, (Hist. J. R. No. 383 - 404,) Terasson. (Hist. de la Jurisprudence Romaine, p. 295 - 356,) Gravina, (Opp. p. 93 - 100,) and Ludewig, in his Life of Justinian, (p.19 - 123, 318 - 321; for the Code and Novels, p. 209 - 261; for the Digest or Pandects, p. 262 - 317.)] [Footnote 72: For the character of Tribonian, see the testimonies of Procopius, (Persic. l. i. c. 23, 24. Anecdot. c. 13, 20,) and Suidas, (tom. iii. p. 501, edit. Kuster.) Ludewig (in Vit. Justinian, p. 175 - 209) works hard, very hard, to whitewash - the blackamoor.]

[Footnote 73: I apply the two passages of Suidas to the same man; every circumstance so exactly tallies. Yet the lawyers appear ignorant; and Fabricius is inclined to separate the two characters, (Bibliot. Grae. tom. i. p. 341, ii. p. 518, iii. p. 418, xii. p. 346, 353, 474.]

[Footnote 74: This story is related by Hesychius, (de Viris Illustribus,) Procopius, (Anecdot. c. 13,) and Suidas, (tom. iii. p. 501.) Such flattery is incredible!

- Nihil est quod credere de se Non possit, cum laudatur Diis aequa potestas. Fontenelle (tom. i. p. 32 - 39) has ridiculed the impudence of the modest Virgil. But the same Fontenelle places his king above the divine Augustus; and the sage Boileau has not blushed to say, “Le destin a ses yeux n'oseroit balancer” Yet neither Augustus nor Louis XIV. were fools.] If Caesar had achieved the reformation of the Roman law, his creative genius, enlightened by reflection and study, would have given to the world a pure and original system of jurisprudence. Whatever flattery might suggest, the emperor of the East was afraid to establish his private judgment as the standard of equity: in the possession of legislative power, he borrowed the aid of time and opinion; and his laborious compilations are guarded by the sages and legislature of past times. Instead of a statue cast in a simple mould by the hand of an artist, the works of Justinian represent a tessellated pavement of antique and costly, but too often of incoherent, fragments. In the first year of his reign, he directed the faithful Tribonian, and nine learned associates, to revise the ordinances of his predecessors, as they were contained, since the time of Adrian, in the Gregorian Hermogenian, and Theodosian codes; to purge the errors and contradictions, to retrench whatever was obsolete or superfluous, and to select the wise and salutary laws best adapted to the practice of the tribunals and the use of his subjects. The work was accomplished in fourteen months; and the twelve books or tables, which the new decemvirs produced, might be designed to imitate the labors of their Roman predecessors. The new Code of Justinian was honored with his name, and confirmed by his royal signature: authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magistrates of the European, the Asiatic, and afterwards the African provinces; and the law of the empire was proclaimed on solemn festivals at the doors of churches. A more arduous operation was still behind - to extract the spirit of jurisprudence from the decisions and conjectures, the questions and disputes, of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the emperor to exercise an absolute jurisdiction over the works of their predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the Digest of Pandects, ^75 in three years, will deserve praise or censure, according to the merit of the execution. From the library of Tribonian, they chose forty, the most eminent civilians of former times: ^76 two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully recorded, that three millions of lines or sentences, ^77 were reduced, in this abstract, to the moderate number of one hundred and fifty thousand. The edition of this great work was delayed a month after that of the Institutes; and it seemed reasonable that the elements should precede the digest of the Roman law. As soon as the emperor had approved their labors, he ratified, by his legislative power, the speculations of these private citizens: their commentaries, on the twelve tables, the perpetual edict, the laws of the people, and the decrees of the senate, succeeded to the authority of the text; and the text was abandoned, as a useless, though venerable, relic of antiquity. The Code, the Pandects, and the Institutes, were declared to be the legitimate system of civil jurisprudence; they alone were admitted into the tribunals, and they alone were taught in the academies of Rome, Constantinople, and Berytus. Justinian addressed to the senate and provinces his eternal oracles; and his pride, under the mask of piety, ascribed the consummation of this great design to the support and inspiration of the Deity.

[Footnote 75: General receivers was a common title of the Greek miscellanies, (Plin. Praefat. ad Hist. Natur.) The Digesta of Scaevola, Marcellinus, Celsus, were already familiar to the civilians: but Justinian was in the wrong when he used the two appellations as synonymous. Is the word Pandects Greek or Latin - masculine or feminine? The diligent Brenckman will not presume to decide these momentous controversies, (Hist. Pandect. Florentine. p. 200 - 304.) Note: The word was formerly in common use. See the preface is Aulus Gellius - W]

[Footnote 76: Angelus Politianus (l. v. Epist. ult.) reckons thirty-seven (p. 192 - 200) civilians quoted in the Pandects - a learned, and for his times, an extraordinary list. The Greek index to the Pandects enumerates thirty-nine, and forty are produced by the indefatigable Fabricius, (Bibliot. Graec. tom. iii. p. 488 - 502.) Antoninus Augustus (de Nominibus Propriis Pandect. apud Ludewig, p. 283) is said to have added fifty-four names; but they must be vague or second-hand references.]

[Footnote 77: The item of the ancient Mss. may be strictly defined as sentences or periods of a complete sense, which, on the breadth of the parchment rolls or volumes, composed as many lines of unequal length. The number in each book served as a check on the errors of the scribes, (Ludewig, p. 211 - 215; and his original author Suicer. Thesaur. Ecclesiast. tom. i. p 1021 - 1036).]

Since the emperor declined the fame and envy of original composition, we can only require, at his hands, method choice, and fidelity, the humble, though indispensable, virtues of a compiler. Among the various combinations of ideas, it is difficult to assign any reasonable preference; but as the order of Justinian is different in his three works, it is possible that all may be wrong; and it is certain that two cannot be right. In the selection of ancient laws, he seems to have viewed his predecessors without jealousy, and with equal regard: the series could not ascend above the reign of Adrian, and the narrow distinction of Paganism and Christianity, introduced by the superstition of Theodosius, had been abolished by the consent of mankind. But the jurisprudence of the Pandects is circumscribed within a period of a hundred years, from the perpetual edict to the death of Severus Alexander: the civilians who lived under the first Caesars are seldom permitted to speak, and only three names can be attributed to the age of the republic. The favorite of Justinian (it has been fiercely urged) was fearful of encountering the light of freedom and the gravity of Roman sages. Tribonian condemned to oblivion the genuine and native wisdom of Cato, the Scaevolas, and Sulpicius; while he invoked spirits more congenial to his own, the Syrians, Greeks, and Africans, who flocked to the Imperial court to study Latin as a foreign tongue, and jurisprudence as a lucrative profession. But the ministers of Justinian, ^78 were instructed to labor, not for the curiosity of antiquarians, but for the immediate benefit of his subjects. It was their duty to select the useful and practical parts of the Roman law; and the writings of the old republicans, however curious on excellent, were no longer suited to the new system of manners, religion, and government. Perhaps, if the preceptors and friends of Cicero were still alive, our candor would acknowledge, that, except in purity of language, ^79 their intrinsic merit was excelled by the school of Papinian and Ulpian. The science of the laws is the slow growth of time and experience, and the advantage both of method and materials, is naturally assumed by the most recent authors. The civilians of the reign of the Antonines had studied the works of their predecessors: their philosophic spirit had mitigated the rigor of antiquity, simplified the forms of proceeding, and emerged from the jealousy and prejudice of the rival sects. The choice of the authorities that compose the Pandects depended on the judgment of Tribonian: but the power of his sovereign could not absolve him from the sacred obligations of truth and fidelity. As the legislator of the empire, Justinian might repeal the acts of the Antonines, or condemn, as seditious, the free principles, which were maintained by the last of the Roman lawyers. ^80 But the existence of past facts is placed beyond the reach of despotism; and the emperor was guilty of fraud and forgery, when he corrupted the integrity of their text, inscribed with their venerable names the words and ideas of his servile reign, ^81 and suppressed, by the hand of power, the pure and authentic copies of their sentiments. The changes and interpolations of Tribonian and his colleagues are excused by the pretence of uniformity: but their cares have been insufficient, and the antinomies, or contradictions of the Code and Pandects, still exercise the patience and subtilty of modern civilians. ^82

[Footnote 78: An ingenious and learned oration of Schultingius (Jurisprudentia Ante-Justinianea, p. 883 - 907) justifies the choice of Tribonian, against the passionate charges of Francis Hottoman and his sectaries.] [Footnote 79: Strip away the crust of Tribonian, and allow for the use of technical words, and the Latin of the Pandects will be found not unworthy of the silver age. It has been vehemently attacked by Laurentius Valla, a fastidious grammarian of the xvth century, and by his apologist Floridus Sabinus. It has been defended by Alciat, and a name less advocate, (most probably James Capellus.) Their various treatises are collected by Duker, (Opuscula de Latinitate veterum Jurisconsultorum, Lugd. Bat. 1721, in 12mo.) Note: Gibbon is mistaken with regard to Valla, who, though he inveighs against the barbarous style of the civilians of his own day, lavishes the highest praise on the admirable purity of the language of the ancient writers on civil law. (M. Warnkonig quotes a long passage of Valla in justification of this observation.) Since his time, this truth has been recognized by men of the highest eminence, such as Erasmus, David Hume and Runkhenius. - W.] [Footnote 80: Nomina quidem veteribus servavimus, legum autem veritatem nostram fecimus. Itaque siquid erat in illis seditiosum, multa autem talia erant ibi reposita, hoc decisum est et definitum, et in perspicuum finem deducta est quaeque lex, (Cod. Justinian. l. i. tit. xvii. leg. 3, No 10.) A frank confession!

Note: Seditiosum, in the language of Justinian, means not seditious, but discounted. - W.]

[Footnote 81: The number of these emblemata (a polite name for forgeries) is much reduced by Bynkershoek, (in the four last books of his Observations,) who poorly maintains the right of Justinian and the duty of Tribonian.] [Footnote 82: The antinomies, or opposite laws of the Code and Pandects, are sometimes the cause, and often the excuse, of the glorious uncertainty of the civil law, which so often affords what Montaigne calls “Questions pour l'Ami.” See a fine passage of Franciscus Balduinus in Justinian, (l. ii. p. 259, &c., apud Ludewig, p. 305, 306.)]

A rumor devoid of evidence has been propagated by the enemies of Justinian; that the jurisprudence of ancient Rome was reduced to ashes by the author of the Pandects, from the vain persuasion, that it was now either false or superfluous. Without usurping an office so invidious, the emperor might safely commit to ignorance and time the accomplishments of this destructive wish. Before the invention of printing and paper, the labor and the materials of writing could be purchased only by the rich; and it may reasonably be computed, that the price of books was a hundred fold their present value. ^83 Copies were slowly multiplied and cautiously renewed: the hopes of profit tempted the sacrilegious scribes to erase the characters of antiquity, ^* and Sophocles or Tacitus were obliged to resign the parchment to missals, homilies, and the golden legend. ^84 If such was the fate of the most beautiful compositions of genius, what stability could be expected for the dull and barren works of an obsolete science? The books of jurisprudence were interesting to few, and entertaining to none: their value was connected with present use, and they sunk forever as soon as that use was superseded by the innovations of fashion, superior merit, or public authority. In the age of peace and learning, between Cicero and the last of the Antonines, many losses had been already sustained, and some luminaries of the school, or forum, were known only to the curious by tradition and report. Three hundred and sixty years of disorder and decay accelerated the progress of oblivion; and it may fairly be presumed, that of the writings, which Justinian is accused of neglecting, many were no longer to be found in the libraries of the East. ^85 The copies of Papinian, or Ulpian, which the reformer had proscribed, were deemed unworthy of future notice: the Twelve Tables and praetorian edicts insensibly vanished, and the monuments of ancient Rome were neglected or destroyed by the envy and ignorance of the Greeks. Even the Pandects themselves have escaped with difficulty and danger from the common shipwreck, and criticism has pronounced that all the editions and manuscripts of the West are derived from one original. ^86 It was transcribed at Constantinople in the beginning of the seventh century, ^87 was successively transported by the accidents of war and commerce to Amalphi, ^88 Pisa, ^89 and Florence, ^90 and is now deposited as a sacred relic ^91 in the ancient palace of the republic. ^92

[Footnote 83: When Faust, or Faustus, sold at Paris his first printed Bibles as manuscripts, the price of a parchment copy was reduced from four or five hundred to sixty, fifty, and forty crowns. The public was at first pleased with the cheapness, and at length provoked by the discovery of the fraud, (Mattaire, Annal. Typograph. tom. i. p. 12; first edit.)]

[Footnote *: Among the works which have been recovered, by the persevering and successful endeavors of M. Mai and his followers to trace the imperfectly erased characters of the ancient writers on these Palimpsests, Gibbon at this period of his labors would have hailed with delight the recovery of the Institutes of Gaius, and the fragments of the Theodosian Code, published by M Keyron of Turin. - M.]

[Footnote 84: This execrable practice prevailed from the viiith, and more especially from the xiith, century, when it became almost universal (Montfaucon, in the Memoires de l'Academie, tom. vi. p. 606, &c. Bibliotheque Raisonnee de la Diplomatique, tom. i. p. 176.)]

[Footnote 85: Pomponius (Pandect. l. i. tit. ii. leg. 2) observes, that of the three founders of the civil law, Mucius, Brutus, and Manilius, extant volumina, scripta Manilii monumenta; that of some old republican lawyers, haec versantur eorum scripta inter manus hominum. Eight of the Augustan sages were reduced to a compendium: of Cascellius, scripta non extant sed unus liber, &c.; of Trebatius, minus frequentatur; of Tubero, libri parum grati sunt. Many quotations in the Pandects are derived from books which Tribonian never saw; and in the long period from the viith to the xiiith century of Rome, the apparent reading of the moderns successively depends on the knowledge and veracity of their predecessors.]

[Footnote 86: All, in several instances, repeat the errors of the scribe and the transpositions of some leaves in the Florentine Pandects. This fact, if it be true, is decisive. Yet the Pandects are quoted by Ivo of Chartres, (who died in 1117,) by Theobald, archbishop of Canterbury, and by Vacarius, our first professor, in the year 1140, (Selden ad Fletam, c. 7, tom. ii. p. 1080 - 1085.) Have our British Mss. of the Pandects been collated?] [Footnote 87: See the description of this original in Brenckman, (Hist. Pandect. Florent. l. i. c. 2, 3, p. 4 - 17, and l. ii.) Politian, an enthusiast, revered it as the authentic standard of Justinian himself, (p. 407, 408;) but this paradox is refuted by the abbreviations of the Florentine Ms. (l. ii. c. 3, p. 117 - 130.) It is composed of two quarto volumes, with large margins, on a thin parchment, and the Latin characters betray the band of a Greek scribe.]

[Footnote 88: Brenckman, at the end of his history, has inserted two dissertations on the republic of Amalphi, and the Pisan war in the year 1135, &c.]

[Footnote 89: The discovery of the Pandects at Amalphi (A. D 1137) is first noticed (in 1501) by Ludovicus Bologninus, (Brenckman, l. i. c. 11, p. 73, 74, l. iv. c. 2, p. 417 - 425,) on the faith of a Pisan chronicle, (p. 409, 410,) without a name or a date. The whole story, though unknown to the xiith century, embellished by ignorant ages, and suspected by rigid criticism, is not, however, destitute of much internal probability, (l. i. c. 4 - 8, p. 17 - 50.) The Liber Pandectarum of Pisa was undoubtedly consulted in the xivth century by the great Bartolus, (p. 406, 407. See l. i. c. 9, p. 50 - 62.) Note: Savigny (vol. iii. p. 83, 89) examines and rejects the whole story. See likewise Hallam vol. iii. p. 514. - M.]

[Footnote 90: Pisa was taken by the Florentines in the year 1406; and in 1411 the Pandects were transported to the capital. These events are authentic and famous.]

[Footnote 91: They were new bound in purple, deposited in a rich casket, and shown to curious travellers by the monks and magistrates bareheaded, and with lighted tapers, (Brenckman, l. i. c. 10, 11, 12, p. 62 - 93.)] [Footnote 92: After the collations of Politian, Bologninus, and Antoninus Augustinus, and the splendid edition of the Pandects by Taurellus, (in 1551,) Henry Brenckman, a Dutchman, undertook a pilgrimage to Florence, where he employed several years in the study of a single manuscript. His Historia Pandectarum Florentinorum, (Utrecht, 1722, in 4to.,) though a monument of industry, is a small portion of his original design.]

It is the first care of a reformer to prevent any future reformation. To maintain the text of the Pandects, the Institutes, and the Code, the use of ciphers and abbreviations was rigorously proscribed; and as Justinian recollected, that the perpetual edict had been buried under the weight of commentators, he denounced the punishment of forgery against the rash civilians who should presume to interpret or pervert the will of their sovereign. The scholars of Accursius, of Bartolus, of Cujacius, should blush for their accumulated guilt, unless they dare to dispute his right of binding the authority of his successors, and the native freedom of the mind. But the emperor was unable to fix his own inconstancy; and, while he boasted of renewing the exchange of Diomede, of transmuting brass into gold, ^93 discovered the necessity of purifying his gold from the mixture of baser alloy. Six years had not elapsed from the publication of the Code, before he condemned the imperfect attempt, by a new and more accurate edition of the same work; which he enriched with two hundred of his own laws, and fifty decisions of the darkest and most intricate points of jurisprudence. Every year, or, according to Procopius, each day, of his long reign, was marked by some legal innovation. Many of his acts were rescinded by himself; many were rejected by his successors; many have been obliterated by time; but the number of sixteen Edicts, and one hundred and sixty-eight Novels, ^94 has been admitted into the authentic body of the civil jurisprudence. In the opinion of a philosopher superior to the prejudices of his profession, these incessant, and, for the most part, trifling alterations, can be only explained by the venal spirit of a prince, who sold without shame his judgments and his laws. ^95 The charge of the secret historian is indeed explicit and vehement; but the sole instance, which he produces, may be ascribed to the devotion as well as to the avarice of Justinian. A wealthy bigot had bequeathed his inheritance to the church of Emesa; and its value was enhanced by the dexterity of an artist, who subscribed confessions of debt and promises of payment with the names of the richest Syrians. They pleaded the established prescription of thirty or forty years; but their defence was overruled by a retrospective edict, which extended the claims of the church to the term of a century; an edict so pregnant with injustice and disorder, that, after serving this occasional purpose, it was prudently abolished in the same reign. ^96 If candor will acquit the emperor himself, and transfer the corruption to his wife and favorites, the suspicion of so foul a vice must still degrade the majesty of his laws; and the advocates of Justinian may acknowledge, that such levity, whatsoever be the motive, is unworthy of a legislator and a man. [Footnote 93: Apud Homerum patrem omnis virtutis, (1st Praefat. ad Pandect.) A line of Milton or Tasso would surprise us in an act of parliament. Quae omnia obtinere sancimus in omne aevum. Of the first Code, he says, (2d Praefat.,) in aeternum valiturum. Man and forever!]

[Footnote 94: Novellae is a classic adjective, but a barbarous substantive, (Ludewig, p. 245.) Justinian never collected them himself; the nine collations, the legal standard of modern tribunals, consist of ninety-eight Novels; but the number was increased by the diligence of Julian, Haloander, and Contius, (Ludewig, p. 249, 258 Aleman. Not in Anecdot. p. 98.)] [Footnote 95: Montesquieu, Considerations sur la Grandeur et la Decadence des Romains, c. 20, tom. iii. p. 501, in 4to. On this occasion he throws aside the gown and cap of a President a Mortier.]

[Footnote 96: Procopius, Anecdot. c. 28. A similar privilege was granted to the church of Rome, (Novel. ix.) For the general repeal of these mischievous indulgences, see Novel. cxi. and Edict. v.]

Monarchs seldom condescend to become the preceptors of their subjects; and some praise is due to Justinian, by whose command an ample system was reduced to a short and elementary treatise. Among the various institutes of the Roman law, ^97 those of Caius ^98 were the most popular in the East and West; and their use may be considered as an evidence of their merit. They were selected by the Imperial delegates, Tribonian, Theophilus, and Dorotheus; and the freedom and purity of the Antonines was incrusted with the coarser materials of a degenerate age. The same volume which introduced the youth of Rome, Constantinople, and Berytus, to the gradual study of the Code and Pandects, is still precious to the historian, the philosopher, and the magistrate. The Institutes of Justinian are divided into four books: they proceed, with no contemptible method, from, I. Persons, to, II. Things, and from things, to, III. Actions; and the article IV., of Private Wrongs, is terminated by the principles of Criminal Law. ^*

[Footnote 97: Lactantius, in his Institutes of Christianity, an elegant and specious work, proposes to imitate the title and method of the civilians. Quidam prudentes et arbitri aequitatis Institutiones Civilis Juris compositas ediderunt, (Institut. Divin. l. i. c. 1.) Such as Ulpian, Paul, Florentinus, Marcian.]

[Footnote 98: The emperor Justinian calls him suum, though he died before the end of the second century. His Institutes are quoted by Servius, Boethius, Priscian, &c.; and the Epitome by Arrian is still extant. (See the Prolegomena and notes to the edition of Schulting, in the Jurisprudentia Ante-Justinianea, Lugd. Bat. 1717. Heineccius, Hist. J R No. 313. Ludewig, in Vit. Just. p. 199.)]

[Footnote *: Gibbon, dividing the Institutes into four parts, considers the appendix of the criminal law in the last title as a fourth part. - W.]

The distinction of ranks and persons is the firmest basis of a mixed and limited government. In France, the remains of liberty are kept alive by the spirit, the honors, and even the prejudices, of fifty thousand nobles. ^99 Two hundred families ^! supply, in lineal descent, the second branch of English legislature, which maintains, between the king and commons, the balance of the constitution. A gradation of patricians and plebeians, of strangers and subjects, has supported the aristocracy of Genoa, Venice, and ancient Rome. The perfect equality of men is the point in which the extremes of democracy and despotism are confounded; since the majesty of the prince or people would be offended, if any heads were exalted above the level of their fellow-slaves or fellow-citizens. In the decline of the Roman empire, the proud distinctions of the republic were gradually abolished, and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth, or the memory of famous ancestors. He delighted to honor, with titles and emoluments, his generals, magistrates, and senators; and his precarious indulgence communicated some rays of their glory to the persons of their wives and children. But in the eye of the law, all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty name. The voice of a Roman could no longer enact his laws, or create the annual ministers of his power: his constitutional rights might have checked the arbitrary will of a master: and the bold adventurer from Germany or Arabia was admitted, with equal favor, to the civil and military command, which the citizen alone had been once entitled to assume over the conquests of his fathers. The first Caesars had scrupulously guarded the distinction of ingenuous and servile birth, which was decided by the condition of the mother; and the candor of the laws was satisfied, if her freedom could be ascertained, during a single moment, between the conception and the delivery. The slaves, who were liberated by a generous master, immediately entered into the middle class of libertines or freedmen; but they could never be enfranchised from the duties of obedience and gratitude; whatever were the fruits of their industry, their patron and his family inherited the third part; or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons; but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave, obtained, without reserve or delay, the station of a citizen; and at length the dignity of an ingenuous birth, which nature had refused, was created, or supposed, by the omnipotence of the emperor. Whatever restraints of age, or forms, or numbers, had been formerly introduced to check the abuse of manumissions, and the too rapid increase of vile and indigent Romans, he finally abolished; and the spirit of his laws promoted the extinction of domestic servitude. Yet the eastern provinces were filled, in the time of Justinian, with multitudes of slaves, either born or purchased for the use of their masters; and the price, from ten to seventy pieces of gold, was determined by their age, their strength, and their education. ^100 But the hardships of this dependent state were continually diminished by the influence of government and religion: and the pride of a subject was no longer elated by his absolute dominion over the life and happiness of his bondsman. ^101 [Footnote 99: See the Annales Politiques de l'Abbe de St. Pierre, tom. i. p. 25 who dates in the year 1735. The most ancient families claim the immemorial possession of arms and fiefs. Since the Crusades, some, the most truly respectable, have been created by the king, for merit and services. The recent and vulgar crowd is derived from the multitude of venal offices without trust or dignity, which continually ennoble the wealthy plebeians.] [Footnote !: Since the time of Gibbon, the House of Peers has been more than doubled: it is above 400, exclusive of the spiritual peers - a wise policy to increase the patrician order in proportion to the general increase of the nation. - M.]

[Footnote 100: If the option of a slave was bequeathed to several legatees, they drew lots, and the losers were entitled to their share of his value; ten pieces of gold for a common servant or maid under ten years: if above that age, twenty; if they knew a trade, thirty; notaries or writers, fifty; midwives or physicians, sixty; eunuchs under ten years, thirty pieces; above, fifty; if tradesmen, seventy, (Cod. l. vi. tit. xliii. leg. 3.) These legal prices are generally below those of the market.]

[Footnote 101: For the state of slaves and freedmen, see Institutes, l. i. tit. iii. - viii. l. ii. tit. ix. l. iii. tit. viii. ix. Pandects or Digest, l. i. tit. v. vi. l. xxxviii. tit. i. - iv., and the whole of the xlth book. Code, l. vi. tit. iv. v. l. vii. tit. i. - xxiii. Be it henceforward understood that, with the original text of the Institutes and Pandects, the correspondent articles in the Antiquities and Elements of Heineccius are implicitly quoted; and with the xxvii. first books of the Pandects, the learned and rational Commentaries of Gerard Noodt, (Opera, tom. ii. p. 1 - 590, the end. Lugd. Bat. 1724.)]

The law of nature instructs most animals to cherish and educate their infant progeny. The law of reason inculcates to the human species the returns of filial piety. But the exclusive, absolute, and perpetual dominion of the father over his children, is peculiar to the Roman jurisprudence, ^102 and seems to be coeval with the foundation of the city. ^103 The paternal power was instituted or confirmed by Romulus himself; and, after the practice of three centuries, it was inscribed on the fourth table of the Decemvirs. In the forum, the senate, or the camp, the adult son of a Roman citizen enjoyed the public and private rights of a person: in his father's house he was a mere thing; ^!! confounded by the laws with the movables, the cattle, and the slaves, whom the capricious master might alienate or destroy, without being responsible to any earthly tribunal. The hand which bestowed the daily sustenance might resume the voluntary gift, and whatever was acquired by the labor or fortune of the son was immediately lost in the property of the father. His stolen goods (his oxen or his children) might be recovered by the same action of theft; ^104 and if either had been guilty of a trespass, it was in his own option to compensate the damage, or resign to the injured party the obnoxious animal. At the call of indigence or avarice, the master of a family could dispose of his children or his slaves. But the condition of the slave was far more advantageous, since he regained, by the first manumission, his alienated freedom: the son was again restored to his unnatural father; he might be condemned to servitude a second and a third time, and it was not till after the third sale and deliverance, ^105 that he was enfranchised from the domestic power which had been so repeatedly abused. According to his discretion, a father might chastise the real or imaginary faults of his children, by stripes, by imprisonment, by exile, by sending them to the country to work in chains among the meanest of his servants. The majesty of a parent was armed with the power of life and death; ^106 and the examples of such bloody executions, which were sometimes praised and never punished, may be traced in the annals of Rome beyond the times of Pompey and Augustus. Neither age, nor rank, nor the consular office, nor the honors of a triumph, could exempt the most illustrious citizen from the bonds of filial subjection: ^107 his own descendants were included in the family of their common ancestor; and the claims of adoption were not less sacred or less rigorous than those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the sentiments of paternal love; and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master. [Footnote 102: See the patria potestas in the Institutes, (l. i. tit. ix.,) the Pandects, (l. i. tit. vi. vii.,) and the Code, (l. viii. tit. xlvii. xlviii. xlix.) Jus potestatis quod in liberos habemus proprium est civium Romanorum. Nulli enim alii sunt homines, qui talem in liberos habeant potestatem qualem nos habemus.

Note: The newly-discovered Institutes of Gaius name one nation in which the same power was vested in the parent. Nec me praeterit Galatarum gentem credere, in potestate parentum liberos esse. Gaii Instit. edit. 1824, p. 257. - M.]

[Footnote 103: Dionysius Hal. l. ii. p. 94, 95. Gravina (Opp. p. 286) produces the words of the xii. tables. Papinian (in Collatione Legum Roman et Mosaicarum, tit. iv. p. 204) styles this patria potestas, lex regia: Ulpian (ad Sabin. l. xxvi. in Pandect. l. i. tit. vi. leg. 8) says, jus potestatis moribus receptum; and furiosus filium in potestate habebit How sacred - or rather, how absurd!

Note: All this is in strict accordance with the Roman character. - W.] [Footnote !!: This parental power was strictly confined to the Roman citizen. The foreigner, or he who had only jus Latii, did not possess it. If a Roman citizen unknowingly married a Latin or a foreign wife, he did not possess this power over his son, because the son, following the legal condition of the mother, was not a Roman citizen. A man, however, alleging sufficient cause for his ignorance, might raise both mother and child to the rights of citizenship. Gaius. p. 30. - M.]

[Footnote 104: Pandect. l. xlvii. tit. ii. leg. 14, No. 13, leg. 38, No. 1. Such was the decision of Ulpian and Paul.]

[Footnote 105: The trina mancipatio is most clearly defined by Ulpian, (Fragment. x. p. 591, 592, edit. Schulting;) and best illustrated in the Antiquities of Heineccius.

Note: The son of a family sold by his father did not become in every respect a slave, he was statu liber; that is to say, on paying the price for which he was sold, he became entirely free. See Hugo, Hist. Section 61 - W.] [Footnote 106: By Justinian, the old law, the jus necis of the Roman father (Institut. l. iv. tit. ix. No. 7) is reported and reprobated. Some legal vestiges are left in the Pandects (l. xliii. tit. xxix. leg. 3, No. 4) and the Collatio Legum Romanarum et Mosaicarum, (tit. ii. No. 3, p. 189.)] [Footnote 107: Except on public occasions, and in the actual exercise of his office. In publicis locis atque muneribus, atque actionibus patrum, jura cum filiorum qui in magistratu sunt potestatibus collata interquiescere paullulum et connivere, &c., (Aul. Gellius, Noctes Atticae, ii. 2.) The Lessons of the philosopher Taurus were justified by the old and memorable example of Fabius; and we may contemplate the same story in the style of Livy (xxiv. 44) and the homely idiom of Claudius Quadri garius the annalist.]

The first limitation of paternal power is ascribed to the justice and humanity of Numa; and the maid who, with his father's consent, had espoused a freeman, was protected from the disgrace of becoming the wife of a slave. In the first ages, when the city was pressed, and often famished, by her Latin and Tuscan neighbors, the sale of children might be a frequent practice; but as a Roman could not legally purchase the liberty of his fellow-citizen, the market must gradually fail, and the trade would be destroyed by the conquests of the republic. An imperfect right of property was at length communicated to sons; and the threefold distinction of profectitious, adventitious, and professional was ascertained by the jurisprudence of the Code and Pandects. ^108 Of all that proceeded from the father, he imparted only the use, and reserved the absolute dominion; yet if his goods were sold, the filial portion was excepted, by a favorable interpretation, from the demands of the creditors. In whatever accrued by marriage, gift, or collateral succession, the property was secured to the son; but the father, unless he had been specially excluded, enjoyed the usufruct during his life. As a just and prudent reward of military virtue, the spoils of the enemy were acquired, possessed, and bequeathed by the soldier alone; and the fair analogy was extended to the emoluments of any liberal profession, the salary of public service, and the sacred liberality of the emperor or empress. The life of a citizen was less exposed than his fortune to the abuse of paternal power. Yet his life might be adverse to the interest or passions of an unworthy father: the same crimes that flowed from the corruption, were more sensibly felt by the humanity, of the Augustan age; and the cruel Erixo, who whipped his son till he expired, was saved by the emperor from the just fury of the multitude. ^109 The Roman father, from the license of servile dominion, was reduced to the gravity and moderation of a judge. The presence and opinion of Augustus confirmed the sentence of exile pronounced against an intentional parricide by the domestic tribunal of Arius. Adrian transported to an island the jealous parent, who, like a robber, had seized the opportunity of hunting, to assassinate a youth, the incestuous lover of his step-mother. ^110 A private jurisdiction is repugnant to the spirit of monarchy; the parent was again reduced from a judge to an accuser; and the magistrates were enjoined by Severus Alexander to hear his complaints and execute his sentence. He could no longer take the life of a son without incurring the guilt and punishment of murder; and the pains of parricide, from which he had been excepted by the Pompeian law, were finally inflicted by the justice of Constantine. ^111 The same protection was due to every period of existence; and reason must applaud the humanity of Paulus, for imputing the crime of murder to the father who strangles, or starves, or abandons his new-born infant; or exposes him in a public place to find the mercy which he himself had denied. But the exposition of children was the prevailing and stubborn vice of antiquity: it was sometimes prescribed, often permitted, almost always practised with impunity, by the nations who never entertained the Roman ideas of paternal power; and the dramatic poets, who appeal to the human heart, represent with indifference a popular custom which was palliated by the motives of economy and compassion. ^112 If the father could subdue his own feelings, he might escape, though not the censure, at least the chastisement, of the laws; and the Roman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurisprudence ^113 and Christianity had been insufficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment. ^114

[Footnote 108: See the gradual enlargement and security of the filial peculium in the Institutes, (l. ii. tit. ix.,) the Pandects, (l. xv. tit. i. l. xli. tit. i.,) and the Code, (l. iv. tit. xxvi. xxvii.)]

[Footnote 109: The examples of Erixo and Arius are related by Seneca, (de Clementia, i. 14, 15,) the former with horror, the latter with applause.] [Footnote 110: Quod latronis magis quam patris jure eum interfecit, nam patria potestas in pietate debet non in atrocitate consistere, (Marcian. Institut. l. xix. in Pandect. l. xlviii. tit. ix. leg.5.)]

[Footnote 111: The Pompeian and Cornelian laws de sicariis and parricidis are repeated, or rather abridged, with the last supplements of Alexander Severus, Constantine, and Valentinian, in the Pandects (l. xlviii. tit. viii ix,) and Code, (l. ix. tit. xvi. xvii.) See likewise the Theodosian Code, (l. ix. tit. xiv. xv.,) with Godefroy's Commentary, (tom. iii. p. 84 - 113) who pours a flood of ancient and modern learning over these penal laws.] [Footnote 112: When the Chremes of Terence reproaches his wife for not obeying his orders and exposing their infant, he speaks like a father and a master, and silences the scruples of a foolish woman. See Apuleius, (Metamorph. l. x. p. 337, edit. Delphin.)]

[Footnote 113: The opinion of the lawyers, and the discretion of the magistrates, had introduced, in the time of Tacitus, some legal restraints, which might support his contrast of the boni mores of the Germans to the bonae leges alibi - that is to say, at Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes, l. i. c. 15) refutes his own charges, and those of his brethren, against the heathen jurisprudence.]

[Footnote 114: The wise and humane sentence of the civilian Paul (l. ii. Sententiarum in Pandect, 1. xxv. tit. iii. leg. 4) is represented as a mere moral precept by Gerard Noodt, (Opp. tom. i. in Julius Paulus, p. 567 - 558, and Amica Responsio, p. 591 - 606,) who maintains the opinion of Justus Lipsius, (Opp. tom. ii. p. 409, ad Belgas. cent. i. epist. 85,) and as a positive binding law by Bynkershoek, (de Jure occidendi Liberos, Opp. tom. i. p. 318 - 340. Curae Secundae, p. 391 - 427.) In a learned out angry controversy, the two friends deviated into the opposite extremes.] Experience has proved, that savages are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage: it was fixed by Numa at the tender age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin. ^115 According to the custom of antiquity, he bought his bride of her parents, and she fulfilled the coemption by purchasing, with three pieces of copper, a just introduction to his house and household deities. A sacrifice of fruits was offered by the pontiffs in the presence of ten witnesses; the contracting parties were seated on the same sheep-skin; they tasted a salt cake of far or rice; and this confarreation, ^116 which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body. But this union on the side of the woman was rigorous and unequal; and she renounced the name and worship of her father's house, to embrace a new servitude, decorated only by the title of adoption, a fiction of the law, neither rational nor elegant, bestowed on the mother of a family ^117 (her proper appellation) the strange characters of sister to her own children, and of daughter to her husband or master, who was invested with the plenitude of paternal power. By his judgment or caprice her behavior was approved, or censured, or chastised; he exercised the jurisdiction of life and death; and it was allowed, that in the cases of adultery or drunkenness, ^118 the sentence might be properly inflicted. She acquired and inherited for the sole profit of her lord; and so clearly was woman defined, not as a person, but as a thing, that, if the original title were deficient, she might be claimed, like other movables, by the use and possession of an entire year. The inclination of the Roman husband discharged or withheld the conjugal debt, so scrupulously exacted by the Athenian and Jewish laws: ^119 but as polygamy was unknown, he could never admit to his bed a fairer or a more favored partner.

[Footnote 115: Dionys. Hal. l. ii. p. 92, 93. Plutarch, in Numa, p. 140-141.] [Footnote 116: Among the winter frunenta, the triticum, or bearded wheat; the siligo, or the unbearded; the far, adorea, oryza, whose description perfectly tallies with the rice of Spain and Italy. I adopt this identity on the credit of M. Paucton in his useful and laborious Metrologie, (p. 517 - 529.)] [Footnote 117: Aulus Gellius (Noctes Atticae, xviii. 6) gives a ridiculous definition of Aelius Melissus, Matrona, quae semel materfamilias quae saepius peperit, as porcetra and scropha in the sow kind. He then adds the genuine meaning, quae in matrimonium vel in manum convenerat.]

[Footnote 118: It was enough to have tasted wine, or to have stolen the key of the cellar, (Plin. Hist. Nat. xiv. 14.)]

[Footnote 119: Solon requires three payments per month. By the Misna, a daily debt was imposed on an idle, vigorous, young husband; twice a week on a citizen; once on a peasant; once in thirty days on a camel-driver; once in six months on a seaman. But the student or doctor was free from tribute; and no wife, if she received a weekly sustenance, could sue for a divorce; for one week a vow of abstinence was allowed. Polygamy divided, without multiplying, the duties of the husband, (Selden, Uxor Ebraica, l. iii. c 6, in his works, vol ii. p. 717 - 720.)]

After the Punic triumphs, the matrons of Rome aspired to the common benefits of a free and opulent republic: their wishes were gratified by the indulgence of fathers and lovers, and their ambition was unsuccessfully resisted by the gravity of Cato the Censor. ^120 They declined the solemnities of the old nuptiais; defeated the annual prescription by an absence of three days; and, without losing their name or independence, subscribed the liberal and definite terms of a marriage contract. Of their private fortunes, they communicated the use, and secured the property: the estates of a wife could neither be alienated nor mortgaged by a prodigal husband; their mutual gifts were prohibited by the jealousy of the laws; and the misconduct of either party might afford, under another name, a future subject for an action of theft. To this loose and voluntary compact, religious and civil rights were no longer essential; and, between persons of a similar rank, the apparent community of life was allowed as sufficient evidence of their nuptials. The dignity of marriage was restored by the Christians, who derived all spiritual grace from the prayers of the faithful and the benediction of the priest or bishop. The origin, validity, and duties of the holy institution were regulated by the tradition of the synagogue, the precepts of the gospel, and the canons of general or provincial synods; ^121 and the conscience of the Christians was awed by the decrees and censures of their ecclesiastical rulers. Yet the magistrates of Justinian were not subject to the authority of the church: the emperor consulted the unbelieving civilians of antiquity, and the choice of matrimonial laws in the Code and Pandects, is directed by the earthly motives of justice, policy, and the natural freedom of both sexes. ^122

[Footnote 120: On the Oppian law we may hear the mitigating speech of Vaerius Flaccus, and the severe censorial oration of the elder Cato, (Liv. xxxiv. l - 8.) But we shall rather hear the polished historian of the eighth, than the rough orators of the sixth, century of Rome. The principles, and even the style, of Cato are more accurately preserved by Aulus Gellius, (x. 23.)] [Footnote 121: For the system of Jewish and Catholic matrimony, see Selden, Uxor Ebraica, Opp. vol. ii. p. 529 - 860,) Bingham, (Christian Antiquities, l. xxii.,) and Chardon, (Hist. des Sacremens, tom. vi.)]

[Footnote 122: The civil laws of marriage are exposed in the Institutes, (l. i. tit. x.,) the Pandects, (l. xxiii. xxiv. xxv.,) and the Code, (l. v.;) but as the title de ritu nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian (tit. ix. p. 590, 591,) and the Collatio Legum Mosaicarum, (tit. xvi. p. 790, 791,) with the notes of Pithaeus and Schulting. They find in the Commentary of Servius (on the 1st Georgia and the 4th Aeneid) two curious passages.]

Besides the agreement of the parties, the essence of every rational contract, the Roman marriage required the previous approbation of the parents. A father might be forced by some recent laws to supply the wants of a mature daughter; but even his insanity was not gradually allowed to supersede the necessity of his consent. The causes of the dissolution of matrimony have varied among the Romans; ^123 but the most solemn sacrament, the confarreation itself, might always be done away by rites of a contrary tendency. In the first ages, the father of a family might sell his children, and his wife was reckoned in the number of his children: the domestic judge might pronounce the death of the offender, or his mercy might expel her from his bed and house; but the slavery of the wretched female was hopeless and perpetual, unless he asserted for his own convenience the manly prerogative of divorce. ^* The warmest applause has been lavished on the virtue of the Romans, who abstained from the exercise of this tempting privilege above five hundred years: ^124 but the same fact evinces the unequal terms of a connection in which the slave was unable to renounce her tyrant, and the tyrant was unwilling to relinquish his slave. When the Roman matrons became the equal and voluntary companions of their lords, a new jurisprudence was introduced, that marriage, like other partnerships, might be dissolved by the abdication of one of the associates. In three centuries of prosperity and corruption, this principle was enlarged to frequent practice and pernicious abuse. Passion, interest, or caprice, suggested daily motives for the dissolution of marriage; a word, a sign, a message, a letter, the mandate of a freedman, declared the separation; the most tender of human connections was degraded to a transient society of profit or pleasure. According to the various conditions of life, both sexes alternately felt the disgrace and injury: an inconstant spouse transferred her wealth to a new family, abandoning a numerous, perhaps a spurious, progeny to the paternal authority and care of her late husband; a beautiful virgin might be dismissed to the world, old, indigent, and friendless; but the reluctance of the Romans, when they were pressed to marriage by Augustus, sufficiently marks, that the prevailing institutions were least favorable to the males. A specious theory is confuted by this free and perfect experiment, which demonstrates, that the liberty of divorce does not contribute to happiness and virtue. The facility of separation would destroy all mutual confidence, and inflame every trifling dispute: the minute difference between a husband and a stranger, which might so easily be removed, might still more easily be forgotten; and the matron, who in five years can submit to the embraces of eight husbands, must cease to reverence the chastity of her own person. ^125 [Footnote 123: According to Plutarch, (p. 57,) Romulus allowed only three grounds of a divorce - drunkenness, adultery, and false keys. Otherwise, the husband who abused his supremacy forfeited half his goods to the wife, and half to the goddess Ceres, and offered a sacrifice (with the remainder?) to the terrestrial deities. This strange law was either imaginary or transient.] [Footnote *: Montesquieu relates and explains this fact in a different marnes Esprit des Loix, l. xvi. c. 16. - G.]

[Footnote 124: In the year of Rome 523, Spurius Carvilius Ruga repudiated a fair, a good, but a barren, wife, (Dionysius Hal. l. ii. p. 93. Plutarch, in Numa, p. 141; Valerius Maximus, l. ii. c. 1; Aulus Gellius, iv. 3.) He was questioned by the censors, and hated by the people; but his divorce stood unimpeached in law.]

[Footnote 125: - Sic fiunt octo mariti Quinque per autumnos. Juvenal, Satir. vi. 20.

A rapid succession, which may yet be credible, as well as the non consulum numero, sed maritorum annos suos computant, of Seneca, (de Beneficiis, iii. 16.) Jerom saw at Rome a triumphant husband bury his twenty-first wife, who had interred twenty-two of his less sturdy predecessors, (Opp. tom. i. p. 90, ad Gerontiam.) But the ten husbands in a month of the poet Martial, is an extravagant hyperbole, (l. 71. epigram 7.)]

Insufficient remedies followed with distant and tardy steps the rapid progress of the evil. The ancient worship of the Romans afforded a peculiar goddess to hear and reconcile the complaints of a married life; but her epithet of Viriplaca, ^126 the appeaser of husbands, too clearly indicates on which side submission and repentance were always expected. Every act of a citizen was subject to the judgment of the censors; the first who used the privilege of divorce assigned, at their command, the motives of his conduct; ^127 and a senator was expelled for dismissing his virgin spouse without the knowledge or advice of his friends. Whenever an action was instituted for the recovery of a marriage portion, the proetor, as the guardian of equity, examined the cause and the characters, and gently inclined the scale in favor of the guiltless and injured party. Augustus, who united the powers of both magistrates, adopted their different modes of repressing or chastising the license of divorce. ^128 The presence of seven Roman witnesses was required for the validity of this solemn and deliberate act: if any adequate provocation had been given by the husband, instead of the delay of two years, he was compelled to refund immediately, or in the space of six months; but if he could arraign the manners of his wife, her guilt or levity was expiated by the loss of the sixth or eighth part of her marriage portion. The Christian princes were the first who specified the just causes of a private divorce; their institutions, from Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the church, ^129 and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects. In the most rigorous laws, a wife was condemned to support a gamester, a drunkard, or a libertine, unless he were guilty of homicide, poison, or sacrilege, in which cases the marriage, as it should seem, might have been dissolved by the hand of the executioner. But the sacred right of the husband was invariably maintained, to deliver his name and family from the disgrace of adultery: the list of mortal sins, either male or female, was curtailed and enlarged by successive regulations, and the obstacles of incurable impotence, long absence, and monastic profession, were allowed to rescind the matrimonial obligation. Whoever transgressed the permission of the law, was subject to various and heavy penalties. The woman was stripped of her wealth and ornaments, without excepting the bodkin of her hair: if the man introduced a new bride into his bed, her fortune might be lawfully seized by the vengeance of his exiled wife. Forfeiture was sometimes commuted to a fine; the fine was sometimes aggravated by transportation to an island, or imprisonment in a monastery; the injured party was released from the bonds of marriage; but the offender, during life, or a term of years, was disabled from the repetition of nuptials. The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent: the civilians were unanimous, ^130 the theologians were divided, ^131 and the ambiguous word, which contains the precept of Christ, is flexible to any interpretation that the wisdom of a legislator can demand.

[Footnote 126: Sacellum Viriplacae, (Valerius Maximus, l. ii. c. 1,) in the Palatine region, appears in the time of Theodosius, in the description of Rome by Publius Victor.]

[Footnote 127: Valerius Maximus, l. ii. c. 9. With some propriety he judges divorce more criminal than celibacy: illo namque conjugalia sacre spreta tantum, hoc etiam injuriose tractata.]

[Footnote 128: See the laws of Augustus and his successors, in Heineccius, ad Legem Papiam-Poppaeam, c. 19, in Opp. tom. vi. P. i. p. 323 - 333.] [Footnote 129: Aliae sunt leges Caesarum, aliae Christi; aliud Papinianus, aliud Paulus nocter praecipit, (Jerom. tom. i. p. 198. Selden, Uxor Ebraica l. iii. c. 31 p. 847 - 853.)]

[Footnote 130: The Institutes are silent; but we may consult the Codes of Theodosius (l. iii. tit. xvi., with Godefroy's Commentary, tom. i. p. 310 - 315) and Justinian, (l. v. tit. xvii.,) the Pandects (l. xxiv. tit. ii.) and the Novels, (xxii. cxvii. cxxvii. cxxxiv. cxl.) Justinian fluctuated to the last between civil and ecclesiastical law.]

[Footnote 131: In pure Greek, it is not a common word; nor can the proper meaning, fornication, be strictly applied to matrimonial sin. In a figurative sense, how far, and to what offences, may it be extended? Did Christ speak the Rabbinical or Syriac tongue? Of what original word is the translation? How variously is that Greek word translated in the versions ancient and modern! There are two (Mark, x. 11, Luke, xvi. 18) to one (Matthew, xix. 9) that such ground of divorce was not excepted by Jesus. Some critics have presumed to think, by an evasive answer, he avoided the giving offence either to the school of Sammai or to that of Hillel, (Selden, Uxor Ebraica, l. iii. c. 18 - 22, 28, 31.)

Note: But these had nothing to do with the question of a divorce made by judicial authority. - Hugo.]

The freedom of love and marriage was restrained among the Romans by natural and civil impediments. An instinct, almost innate and universal, appears to prohibit the incestuous commerce ^132 of parents and children in the infinite series of ascending and descending generations. Concerning the oblique and collateral branches, nature is indifferent, reason mute, and custom various and arbitrary. In Egypt, the marriage of brothers and sisters was admitted without scruple or exception: a Spartan might espouse the daughter of his father, an Athenian, that of his mother; and the nuptials of an uncle with his niece were applauded at Athens as a happy union of the dearest relations. The profane lawgivers of Rome were never tempted by interest or superstition to multiply the forbidden degrees: but they inflexibly condemned the marriage of sisters and brothers, hesitated whether first cousins should be touched by the same interdict; revered the parental character of aunts and uncles, ^* and treated affinity and adoption as a just imitation of the ties of blood. According to the proud maxims of the republic, a legal marriage could only be contracted by free citizens; an honorable, at least an ingenuous birth, was required for the spouse of a senator: but the blood of kings could never mingle in legitimate nuptials with the blood of a Roman; and the name of Stranger degraded Cleopatra and Berenice, ^133 to live the concubines of Mark Antony and Titus. ^134 This appellation, indeed, so injurious to the majesty, cannot without indulgence be applied to the manners, of these Oriental queens. A concubine, in the strict sense of the civilians, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued in a state of celibacy. Her modest station, below the honors of a wife, above the infamy of a prostitute, was acknowledged and approved by the laws: from the age of Augustus to the tenth century, the use of this secondary marriage prevailed both in the West and East; and the humble virtues of a concubine were often preferred to the pomp and insolence of a noble matron. In this connection, the two Antonines, the best of princes and of men, enjoyed the comforts of domestic love: the example was imitated by many citizens impatient of celibacy, but regardful of their families. If at any time they desired to legitimate their natural children, the conversion was instantly performed by the celebration of their nuptials with a partner whose faithfulness and fidelity they had already tried. ^* By this epithet of natural, the offspring of the concubine were distinguished from the spurious brood of adultery, prostitution, and incest, to whom Justinian reluctantly grants the necessary aliments of life; and these natural children alone were capable of succeeding to a sixth part of the inheritance of their reputed father. According to the rigor of law, bastards were entitled only to the name and condition of their mother, from whom they might derive the character of a slave, a stranger, or a citizen. The outcasts of every family were adopted without reproach as the children of the state. ^135 ^!

[Footnote 132: The principles of the Roman jurisprudence are exposed by Justinian, (Institut. t. i. tit. x.;) and the laws and manners of the different nations of antiquity concerning forbidden degrees, &c., are copiously explained by Dr. Taylor in his Elements of Civil Law, (p. 108, 314 - 339,) a work of amusing, though various reading; but which cannot be praised for philosophical precision.]

[Footnote *: According to the earlier law, (Gaii Instit. p. 27,) a man might marry his niece on the brother's, not on the sister's, side. The emperor Claudius set the example of the former. In the Institutes, this distinction was abolished and both declared illegal. - M.]

[Footnote 133: When her father Agrippa died, (A.D. 44,) Berenice was sixteen years of age, (Joseph. tom. i. Antiquit. Judaic. l. xix. c. 9, p. 952, edit. Havercamp.) She was therefore above fifty years old when Titus (A.D. 79) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine.]

[Footnote 134: The Aegyptia conjux of Virgil (Aeneid, viii. 688) seems to be numbered among the monsters who warred with Mark Antony against Augustus, the senate, and the gods of Italy.]

[Footnote *: The Edict of Constantine first conferred this right; for Augustus had prohibited the taking as a concubine a woman who might be taken as a wife; and if marriage took place afterwards, this marriage made no change in the rights of the children born before it; recourse was then had to adoption, properly called arrogation. - G.]

[Footnote 135: The humble but legal rights of concubines and natural children are stated in the Institutes, (l. i. tit. x.,) the Pandects, (l. i. tit. vii.,) the Code, (l. v. tit. xxv.,) and the Novels, (lxxiv. lxxxix.) The researches of Heineccius and Giannone, (ad Legem Juliam et Papiam-Poppaeam, c. iv. p. 164 - 175. Opere Posthume, p. 108 - 158) illustrate this interesting and domestic subject.]

[Footnote !: See, however, the two fragments of laws in the newly discovered extracts from the Theodosian Code, published by M. A. Peyron, at Turin. By the first law of Constantine, the legitimate offspring could alone inherit; where there were no near legitimate relatives, the inheritance went to the fiscus. The son of a certain Licinianus, who had inherited his father's property under the supposition that he was legitimate, and had been promoted to a place of dignity, was to be degraded, his property confiscated, himself punished with stripes and imprisonment. By the second, all persons, even of the highest rank, senators, perfectissimi, decemvirs, were to be declared infamous, and out of the protection of the Roman law, if born ex ancilla, vel ancillae filia, vel liberta, vel libertae filia, sive Romana facta, seu Latina, vel scaenicae filia, vel ex tabernaria, vel ex tabernariae filia, vel humili vel abjecta, vel lenonis, aut arenarii filia, vel quae mercimoniis publicis praefuit. Whatever a fond father had conferred on such children was revoked, and either restored to the legitimate children, or confiscated to the state; the mothers, who were guily of thus poisoning the minds of the fathers, were to be put to the torture (tormentis subici jubemus.) The unfortunate son of Licinianus, it appears from this second law, having fled, had been taken, and was ordered to be kept in chains to work in the Gynaeceum at Carthage. Cod. Theodor ab. A. Person, 87 - 90. - M.]

The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the Institutes and Pandects, ^136 is of a very simple and uniform nature. The person and property of an orphan must always be trusted to the custody of some discreet friend. If the deceased father had not signified his choice, the agnats, or paternal kindred of the nearest degree, were compelled to act as the natural guardians: the Athenians were apprehensive of exposing the infant to the power of those most interested in his death; but an axiom of Roman jurisprudence has pronounced, that the charge of tutelage should constantly attend the emolument of succession. If the choice of the father, and the line of consanguinity, afforded no efficient guardian, the failure was supplied by the nomination of the praetor of the city, or the president of the province. But the person whom they named to this public office might be legally excused by insanity or blindness, by ignorance or inability, by previous enmity or adverse interest, by the number of children or guardianships with which he was already burdened, and by the immunities which were granted to the useful labors of magistrates, lawyers, physicians, and professors. Till the infant could speak, and think, he was represented by the tutor, whose authority was finally determined by the age of puberty. Without his consent, no act of the pupil could bind himself to his own prejudice, though it might oblige others for his personal benefit. It is needless to observe, that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. The age of puberty had been rashly fixed by the civilians at fourteen; ^* but as the faculities of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of a Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the praetor, to save a family from the blind havoc of a prodigal or madman; and the minor was compelled, by the laws, to solicit the same protection, to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians; a sex created to please and obey was never supposed to have attained the age of reason and experience. Such, at least, was the stern and haughty spirit of the ancient law, which had been insensibly mollified before the time of Justinian.

[Footnote 136: See the article of guardians and wards in the Institutes, (l. i. tit. xiii. - xxvi.,) the Pandects, (l. xxvi. xxvii.,) and the Code, (l. v. tit. xxviii. - lxx.)]

[Footnote *: Gibbon accuses the civilians of having “rashly fixed the age of puberty at twelve or fourteen years.” It was not so; before Justinian, no law existed on this subject. Ulpian relates the discussions which took place on this point among the different sects of civilians. See the Institutes, l. i. tit. 22, and the fragments of Ulpian. Nor was the curatorship obligatory for all minors. - W.]

II. The original right of property can only be justified by the accident or merit of prior occupancy; and on this foundation it is wisely established by the philosophy of the civilians. ^137 The savage who hollows a tree, inserts a sharp stone into a wooden handle, or applies a string to an elastic branch, becomes in a state of nature the just proprietor of the canoe, the bow, or the hatchet. The materials were common to all, the new form, the produce of his time and simple industry, belongs solely to himself. His hungry brethren cannot, without a sense of their own injustice, extort from the hunter the game of the forest overtaken or slain by his personal strength and dexterity. If his provident care preserves and multiplies the tame animals, whose nature is tractable to the arts of education, he acquires a perpetual title to the use and service of their numerous progeny, which derives its existence from him alone. If he encloses and cultivates a field for their sustenance and his own, a barren waste is converted into a fertile soil; the seed, the manure, the labor, create a new value, and the rewards of harvest are painfully earned by the fatigues of the revolving year. In the successive states of society, the hunter, the shepherd, the husbandman, may defend their possessions by two reasons which forcibly appeal to the feelings of the human mind: that whatever they enjoy is the fruit of their own industry; and that every man who envies their felicity, may purchase similar acquisitions by the exercise of similar diligence. Such, in truth, may be the freedom and plenty of a small colony cast on a fruitful island. But the colony multiplies, while the space still continues the same; the common rights, the equal inheritance of mankind. are engrossed by the bold and crafty; each field and forest is circumscribed by the landmarks of a jealous master; and it is the peculiar praise of the Roman jurisprudence, that i asserts the claim of the first occupant to the wild animals of the earth, the air, and the waters. In the progress from primitive equity to final injustice, the steps are silent, the shades are almost imperceptible, and the absolute monopoly is guarded by positive laws and artificial reason. The active, insatiate principle of self-love can alone supply the arts of life and the wages of industry; and as soon as civil government and exclusive property have been introduced, they become necessary to the existence of the human race. Except in the singular institutions of Sparta, the wisest legislators have disapproved an agrarian law as a false and dangerous innovation. Among the Romans, the enormous disproportion of wealth surmounted the ideal restraints of a doubtful tradition, and an obsolete statute; a tradition that the poorest follower of Romulus had been endowed with the perpetual inheritance of two jugera; ^138 a statute which confined the richest citizen to the measure of five hundred jugera, or three hundred and twelve acres of land. The original territory of Rome consisted only of some miles of wood and meadow along the banks of the Tyber; and domestic exchange could add nothing to the national stock. But the goods of an alien or enemy were lawfully exposed to the first hostile occupier; the city was enriched by the profitable trade of war; and the blood of her sons was the only price that was paid for the Volscian sheep, the slaves of Briton, or the gems and gold of Asiatic kingdoms. In the language of ancient jurisprudence, which was corrupted and forgotten before the age of Justinian, these spoils were distinguished by the name of manceps or manicipium, taken with the hand; and whenever they were sold or emancipated, the purchaser required some assurance that they had been the property of an enemy, and not of a fellow- citizen. ^139 A citizen could only forfeit his rights by apparent dereliction, and such dereliction of a valuable interest could not easily be presumed. Yet, according to the Twelve Tables, a prescription of one year for movables, and of two years for immovables, abolished the claim of the ancient master, if the actual possessor had acquired them by a fair transaction from the person whom he believed to be the lawful proprietor. ^140 Such conscientious injustice, without any mixture of fraud or force could seldom injure the members of a small republic; but the various periods of three, of ten, or of twenty years, determined by Justinian, are more suitable to the latitude of a great empire. It is only in the term of prescription that the distinction of real and personal fortune has been remarked by the civilians; and their general idea of property is that of simple, uniform, and absolute dominion. The subordinate exceptions of use, of usufruct, ^141 of servitude, ^142 imposed for the benefit of a neighbor on lands and houses, are abundantly explained by the professors of jurisprudence. The claims of property, as far as they are altered by the mixture, the division, or the transformation of substances, are investigated with metaphysical subtilty by the same civilians.

[Footnote 137: Institut. l. ii. tit i. ii. Compare the pure and precise reasoning of Caius and Heineccius (l. ii. tit. i. p. 69 - 91) with the loose prolixity of Theophilus, (p. 207 - 265.) The opinions of Ulpian are preserved in the Pandects, (l. i. tit. viii. leg. 41, No. 1.)]

[Footnote 138: The heredium of the first Romans is defined by Varro, (de Re Rustica, l. i. c. ii. p. 141, c. x. p. 160, 161, edit. Gesner,) and clouded by Pliny's declamation, (Hist. Natur. xviii. 2.) A just and learned comment is given in the Administration des Terres chez les Romains, (p. 12 - 66.) Note: On the duo jugera, compare Niebuhr, vol. i. p. 337. - M.] [Footnote 139: The res mancipi is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. p. 618, 619) and Bynkershoek, (Opp tom. i. p. 306 - 315.) The definition is somewhat arbitrary; and as none except myself have assigned a reason, I am diffident of my own.]

[Footnote 140: From this short prescription, Hume (Essays, vol. i. p. 423) infers that there could not then be more order and settlement in Italy than now amongst the Tartars. By the civilian of his adversary Wallace, he is reproached, and not without reason, for overlooking the conditions, (Institut. l. ii. tit. vi.)

Note: Gibbon acknowledges, in the former note, the obscurity of his views with regard to the res mancipi. The interpreters, who preceded him, are not agreed on this point, one of the most difficult in the ancient Roman law. The conclusions of Hume, of which the author here speaks, are grounded on false assumptions. Gibbon had conceived very inaccurate notions of Property among the Romans, and those of many authors in the present day are not less erroneous. We think it right, in this place, to develop the system of property among the Romans, as the result of the study of the extant original authorities on the ancient law, and as it has been demonstrated, recognized, and adopted by the most learned expositors of the Roman law. Besides the authorities formerly known, such as the Fragments of Ulpian, t. xix. and t. i. 16. Theoph. Paraph. i. 5, 4, may be consulted the Institutes of Gaius, i. 54, and ii. 40, et seq.

The Roman laws protected all property acquired in a lawful manner. They imposed on those who had invaded it, the obligation of making restitution and reparation of all damage caused by that invasion; they punished it moreover, in many cases, by a pecuniary fine. But they did not always grant a recovery against the third person, who had become bona fide possessed of the property. He who had obtained possession of a thing belonging to another, knowing nothing of the prior rights of that person, maintained the possession. The law had expressly determined those cases, in which it permitted property to be reclaimed from an innocent possessor. In these cases possession had the characters of absolute proprietorship, called mancipium, jus Quiritium. To possess this right, it was not sufficient to have entered into possession of the thing in any manner; the acquisition was bound to have that character of publicity, which was given by the observation of solemn forms, prescribed by the laws, or the uninterrupted exercise of proprietorship during a certain time: the Roman citizen alone could acquire this proprietorship. Every other kind of possession, which might be named imperfect proprietorship, was called “in bonis habere.” It was not till after the time of Cicero that the general name of Dominium was given to all proprietorship.

It was then the publicity which constituted the distinctive character of absolute dominion. This publicity was grounded on the mode of acquisition, which the moderns have called Civil, (Modi adquirendi Civiles.) These modes of acquisition were,

1. Mancipium or mancipatio, which was nothing but the solemn delivering over of the thing in the presence of a determinate number of witnesses and a public officer; it was from this probably that proprietorship was named, 2. In jure cessio, which was a solemn delivering over before the praetor. 3. Adjudicatio, made by a judge, in a case of partition. 4. Lex, which comprehended modes of acquiring in particular cases determined by law; probably the law of the xii. tables; for instance, the sub corona emptio and the legatum.

5. Usna, called afterwards usacapio, and by the moderns prescription. This was only a year for movables; two years for things not movable. Its primary object was altogether different from that of prescription in the present day. It was originally introduced in order to transform the simple possession of a thing (in bonis habere) into Roman proprietorship. The public and uninterrupted possession of a thing, enjoyed for the space of one or two years, was sufficient to make known to the inhabitants of the city of Rome to whom the thing belonged. This last mode of acquisition completed the system of civil acquisitions. by legalizing. as it were, every other kind of acquisition which was not conferred, from the commencement, by the Jus Quiritium. V. Ulpian. Fragm. i. 16. Gaius, ii. 14. We believe, according to Gaius, 43, that this usucaption was extended to the case where a thing had been acquired from a person not the real proprietor; and that according to the time prescribed, it gave to the possessor the Roman proprietorship. But this does not appear to have been the original design of this Institution. Caeterum etiam earum rerum usucapio nobis competit, quae non a domino nobis tradita fuerint, si modo eas bona fide acceperimus Gaius, l ii. 43. As to things of smaller value, or those which it was difficult to distinguish from each other, the solemnities of which we speak were not requisite to obtain legal proprietorship. In this case simple delivery was sufficient.

In proportion to the aggrandizement of the Republic, this latter principle became more important from the increase of the commerce and wealth of the state. It was necessary to know what were those things of which absolute property might be acquired by simple delivery, and what, on the contrary, those, the acquisition of which must be sanctioned by these solemnities. This question was necessarily to be decided by a general rule; and it is this rule which establishes the distinction between res mancipi and nec mancipi, a distinction about which the opinions of modern civilians differ so much that there are above ten conflicting systems on the subject. The system which accords best with a sound interpretation of the Roman laws, is that proposed by M. Trekel of Hamburg, and still further developed by M. Hugo, who has extracted it in the Magazine of Civil Law, vol. ii. p. 7. This is the system now almost universally adopted. Res mancipi (by contraction for mancipii) were things of which the absolute property (Jus Quiritium) might be acquired only by the solemnities mentioned above, at least by that of mancipation, which was, without doubt, the most easy and the most usual. Gaius, ii. 25. As for other things, the acquisition of which was not subject to these forms, in order to confer absolute right, they were called res nec mancipi. See Ulpian, Fragm. xix. 1. 3, 7.

Ulpian and Varro enumerate the different kinds of res mancipi. Their enumerations do not quite agree; and various methods of reconciling them have been attempted. The authority of Ulpian, however, who wrote as a civilian, ought to have the greater weight on this subject.

But why are these things alone res mancipi? This is one of the questions which have been most frequently agitated, and on which the opinions of civilians are most divided. M. Hugo has resolved it in the most natural and satisfactory manner. “All things which were easily known individually, which were of great value, with which the Romans were acquainted, and which they highly appreciated, were res mancipi. Of old mancipation or some other solemn form was required for the acquisition of these things, an account of their importance. Mancipation served to prove their acquisition, because they were easily distinguished one from the other.” On this great historical discussion consult the Magazine of Civil Law by M. Hugo, vol. ii. p. 37, 38; the dissertation of M. J. M. Zachariae, de Rebus Mancipi et nec Mancipi Conjecturae, p. 11. Lipsiae, 1807; the History of Civil Law by M. Hugo; and my Institutiones Juris Romani Privati p. 108, 110.

As a general rule, it may be said that all things are res nec mancipi; the res mancipi are the exception to this principle.

The praetors changed the system of property by allowing a person, who had a thing in bonis, the right to recover before the prescribed term of usucaption had conferred absolute proprietorship. (Pauliana in rem actio.) Justinian went still further, in times when there was no longer any distinction between a Roman citizen and a stranger. He granted the right of recovering all things which had been acquired, whether by what were called civil or natural modes of acquisition, Cod. l. vii. t. 25, 31. And he so altered the theory of Gaius in his Institutes, ii. 1, that no trace remains of the doctrine taught by that civilian. - W.]

[Footnote 141: See the Institutes (l. i. tit. iv. v.) and the Pandects, (l. vii.) Noodt has composed a learned and distinct treatise de Usufructu, (Opp. tom. i. p. 387 - 478.)]

[Footnote 142: The questions de Servitutibus are discussed in the Institutes (l. ii. tit. iii.) and Pandects, (l. viii.) Cicero (pro Murena, c. 9) and Lactantius (Institut. Divin. l. i. c. i.) affect to laugh at the insignificant doctrine, de aqua de pluvia arcenda, &c. Yet it might be of frequent use among litigious neighbors, both in town and country.]

The personal title of the first proprietor must be determined by his death: but the possession, without any appearance of change, is peaceably continued in his children, the associates of his toil, and the partners of his wealth. This natural inheritance has been protected by the legislators of every climate and age, and the father is encouraged to persevere in slow and distant improvements, by the tender hope, that a long posterity will enjoy the fruits of his labor. The principle of hereditary succession is universal; but the order has been variously established by convenience or caprice, by the spirit of national institutions, or by some partial example which was originally decided by fraud or violence. The jurisprudence of the Romans appear to have deviated from the inequality of nature much less than the Jewish, ^143 the Athenian, ^144 or the English institutions. ^145 On the death of a citizen, all his descendants, unless they were already freed from his paternal power, were called to the inheritance of his possessions. The insolent prerogative of primogeniture was unknown; the two sexes were placed on a just level; all the sons and daughters were entitled to an equal portion of the patrimonial estate; and if any of the sons had been intercepted by a premature death, his person was represented, and his share was divided, by his surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The degrees of kindred ^146 are numbered by the civilians, ascending from the last possessor to a common parent, and descending from the common parent to the next heir: my father stands in the first degree, my brother in the second, his children in the third, and the remainder of the series may be conceived by a fancy, or pictured in a genealogical table. In this computation, a distinction was made, essential to the laws and even the constitution of Rome; the agnats, or persons connected by a line of males, were called, as they stood in the nearest degree, to an equal partition; but a female was incapable of transmitting any legal claims; and the cognats of every rank, without excepting the dear relation of a mother and a son, were disinherited by the Twelve Tables, as strangers and aliens. Among the Romans agens or lineage was united by a common name and domestic rites; the various cognomens or surnames of Scipio, or Marcellus, distinguished from each other the subordinate branches or families of the Cornelian or Claudian race: the default of the agnats, of the same surname, was supplied by the larger denomination of gentiles; and the vigilance of the laws maintained, in the same name, the perpetual descent of religion and property. A similar principle dictated the Voconian law, ^147 which abolished the right of female inheritance. As long as virgins were given or sold in marriage, the adoption of the wife extinguished the hopes of the daughter. But the equal succession of independent matrons supported their pride and luxury, and might transport into a foreign house the riches of their fathers. While the maxims of Cato ^148 were revered, they tended to perpetuate in each family a just and virtuous mediocrity: till female blandishments insensibly triumphed; and every salutary restraint was lost in the dissolute greatness of the republic. The rigor of the decemvirs was tempered by the equity of the praetors. Their edicts restored and emancipated posthumous children to the rights of nature; and upon the failure of the agnats, they preferred the blood of the cognats to the name of the gentiles whose title and character were insensibly covered with oblivion. The reciprocal inheritance of mothers and sons was established in the Tertullian and Orphitian decrees by the humanity of the senate. A new and more impartial order was introduced by the Novels of Justinian, who affected to revive the jurisprudence of the Twelve Tables. The lines of masculine and female kindred were confounded: the descending, ascending, and collateral series was accurately defined; and each degree, according tot he proximity of blood and affection, succeeded to the vacant possessions of a Roman citizen. ^149

[Footnote 143: Among the patriarchs, the first-born enjoyed a mystic and spiritual primogeniture, (Genesis, xxv. 31.) In the land of Canaan, he was entitled to a double portion of inheritance, (Deuteronomy, xxi. 17, with Le Clerc's judicious Commentary.)]

[Footnote 144: At Athens, the sons were equal; but the poor daughters were endowed at the discretion of their brothers. See the pleadings of Isaeus, (in the viith volume of the Greek Orators,) illustrated by the version and comment of Sir William Jones, a scholar, a lawyer, and a man of genius.] [Footnote 145: In England, the eldest son also inherits all the land; a law, says the orthodox Judge Blackstone, (Commentaries on the Laws of England, vol. ii. p. 215,) unjust only in the opinion of younger brothers. It may be of some political use in sharpening their industry.]

[Footnote 146: Blackstone's Tables (vol. ii. p. 202) represent and compare the decrees of the civil with those of the canon and common law. A separate tract of Julius Paulus, de gradibus et affinibus, is inserted or abridged in the Pandects, (l. xxxviii. tit. x.) In the viith degrees he computes (No. 18) 1024 persons.]

[Footnote 147: The Voconian law was enacted in the year of Rome 584. The younger Scipio, who was then 17 years of age, (Frenshemius, Supplement. Livian. xlvi. 40,) found an occasion of exercising his generosity to his mother, sisters, &c. (Polybius, tom. ii. l. xxxi. p. 1453 - 1464, edit Gronov., a domestic witness.)]

[Footnote 148: Legem Voconiam (Ernesti, Clavis Ciceroniana) magna voce bonis lateribus (at lxv. years of age) suasissem, says old Cato, (de Senectute, c. 5,) Aulus Gellius (vii. 13, xvii. 6) has saved some passages.] [Footnote 149: See the law of succession in the Institutes of Caius, (l. ii. tit. viii. p. 130 - 144,) and Justinian, (l. iii. tit. i. - vi., with the Greek version of Theophilus, p. 515 - 575, 588 - 600,) the Pandects, (l. xxxviii. tit. vi. - xvii.,) the Code, (l. vi. tit. lv. - lx.,) and the Novels, (cxviii.)]

The order of succession is regulated by nature, or at least by the general and permanent reason of the lawgiver: but this order is frequently violated by the arbitrary and partial wills, which prolong the dominion of the testator beyond the grave. ^150 In the simple state of society, this last use or abuse of the right of property is seldom indulged: it was introduced at Athens by the laws of Solon; and the private testaments of the father of a family are authorized by the Twelve Tables. Before the time of the decemvirs, ^151 a Roman citizen exposed his wishes and motives to the assembly of the thirty curiae or parishes, and the general law of inheritance was suspended by an occasional act of the legislature. After the permission of the decemvirs, each private lawgiver promulgated his verbal or written testament in the presence of five citizens, who represented the five classes of the Roman people; a sixth witness attested their concurrence; a seventh weighed the copper money, which was paid by an imaginary purchaser; and the estate was emancipated by a fictitious sale and immediate release. This singular ceremony, ^152 which excited the wonder of the Greeks, was still practised in the age of Severus; but the praetors had already approved a more simple testament, for which they required the seals and signatures of seven witnesses, free from all legal exception, and purposely summoned for the execution of that important act. A domestic monarch, who reigned over the lives and fortunes of his children, might distribute their respective shares according to the degrees of their merit or his affection; his arbitrary displeasure chastised an unworthy son by the loss of his inheritance, and the mortifying preference of a stranger. But the experience of unnatural parents recommended some limitations of their testamentary powers. A son, or, by the laws of Justinian, even a daughter, could no longer be disinherited by their silence: they were compelled to name the criminal, and to specify the offence; and the justice of the emperor enumerated the sole causes that could justify such a violation of the first principles of nature and society. ^153 Unless a legitimate portion, a fourth part, had been reserved for the children, they were entitled to institute an action or complaint of inofficious testament; to suppose that their father's understanding was impaired by sickness or age; and respectfully to appeal from his rigorous sentence to the deliberate wisdom of the magistrate. In the Roman jurisprudence, an essential distinction was admitted between the inheritance and the legacies. The heirs who succeeded to the entire unity, or to any of the twelve fractions of the substance of the testator, represented his civil and religious character, asserted his rights, fulfilled his obligations, and discharged the gifts of friendship or liberality, which his last will had bequeathed under the name of legacies. But as the imprudence or prodigality of a dying man might exhaust the inheritance, and leave only risk and labor to his successor, he was empowered to retain the Falcidian portion; to deduct, before the payment of the legacies, a clear fourth for his own emolument. A reasonable time was allowed to examine the proportion between the debts and the estate, to decide whether he should accept or refuse the testament; and if he used the benefit of an inventory, the demands of the creditors could not exceed the valuation of the effects. The last will of a citizen might be altered during his life, or rescinded after his death: the persons whom he named might die before him, or reject the inheritance, or be exposed to some legal disqualification. In the contemplation of these events, he was permitted to substitute second and third heirs, to replace each other according to the order of the testament; and the incapacity of a madman or an infant to bequeath his property might be supplied by a similar substitution. ^154 But the power of the testator expired with the acceptance of the testament: each Roman of mature age and discretion acquired the absolute dominion of his inheritance, and the simplicity of the civil law was never clouded by the long and intricate entails which confine the happiness and freedom of unborn generations.

[Footnote 150: That succession was the rule, testament the exception, is proved by Taylor, (Elements of Civil Law, p. 519 - 527, (a learned, rambling, spirited writer. In the iid and iiid books, the method of the Institutes is doubtless preposterous; and the Chancellor Daguesseau (Oeuvres, tom. i. p. 275) wishes his countryman Domat in the place of Tribonian. Yet covenants before successions is not surely the natural order of civil laws.] [Footnote 151: Prior examples of testaments are perhaps fabulous. At Athens a childless father only could make a will, (Plutarch, in Solone, tom. i. p. 164. See Isaeus and Jones.)]

[Footnote 152: The testament of Augustus is specified by Suetonius, (in August, c. 101, in Neron. c. 4,) who may be studied as a code of Roman antiquities. Plutarch (Opuscul. tom. ii. p. 976) is surprised. The language of Ulpian (Fragment. tit. xx. p. 627, edit. Schulting) is almost too exclusive - solum in usu est.]

[Footnote 153: Justinian (Novell. cxv. No. 3, 4) enumerates only the public and private crimes, for which a son might likewise disinherit his father. Note: Gibbon has singular notions on the provisions of Novell. cxv. 3, 4, which probably he did not clearly understand. - W]

[Footnote 154: The substitutions of fidei-commissaires of the modern civil law is a feudal idea grafted on the Roman jurisprudence, and bears scarcely any resemblance to the ancient fidei-commissa, (Institutions du Droit Francois, tom. i. p. 347 - 383. Denissart, Decisions de Jurisprudence, tom. iv. p. 577 - 604.) They were stretched to the fourth degree by an abuse of the clixth Novel; a partial, perplexed, declamatory law.]

Conquest and the formalities of law established the use of codicils. If a Roman was surprised by death in a remote province of the empire, he addressed a short epistle to his legitimate or testamentary heir; who fulfilled with honor, or neglected with impunity, this last request, which the judges before the age of Augustus were not authorized to enforce. A codicil might be expressed in any mode, or in any language; but the subscription of five witnesses must declare that it was the genuine composition of the author. His intention, however laudable, was sometimes illegal; and the invention of fidei-commissa, or trusts, arose form the struggle between natural justice and positive jurisprudence. A stranger of Greece or Africa might be the friend or benefactor of a childless Roman, but none, except a fellow-citizen, could act as his heir. The Voconian law, which abolished female succession, restrained the legacy or inheritance of a woman to the sum of one hundred thousand sesterces; ^155 and an only daughter was condemned almost as an alien in her father's house. The zeal of friendship, and parental affection, suggested a liberal artifice: a qualified citizen was named in the testament, with a prayer or injunction that he would restore the inheritance to the person for whom it was truly intended. Various was the conduct of the trustees in this painful situation: they had sworn to observe the laws of their country, but honor prompted them to violate their oath; and if they preferred their interest under the mask of patriotism, they forfeited the esteem of every virtuous mind. The declaration of Augustus relieved their doubts, gave a legal sanction to confidential testaments and codicils, and gently unravelled the forms and restraints of the republican jurisprudence. ^156 But as the new practice of trusts degenerated into some abuse, the trustee was enabled, by the Trebellian and Pegasian decrees, to reserve one fourth of the estate, or to transfer on the head of the real heir all the debts and actions of the succession. The interpretation of testaments was strict and literal; but the language of trusts and codicils was delivered from the minute and technical accuracy of the civilians. ^157

[Footnote 155: Dion Cassius (tom. ii. l. lvi. p. 814, with Reimar's Notes) specifies in Greek money the sum of 25,000 drachms.]

[Footnote 156: The revolutions of the Roman laws of inheritance are finely, though sometimes fancifully, deduced by Montesquieu, (Esprit des Loix, l. xxvii.)]

[Footnote 157: Of the civil jurisprudence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius, (l. ii. tit. ii. - ix. p. 91 - 144,) Justinian, (l. ii. tit. x. - xxv.,) and Theophilus, (p. 328 - 514;) and the immense detail occupies twelve books (xxviii. - xxxix.) of the Pandects.] III. The general duties of mankind are imposed by their public and private relations: but their specific obligations to each other can only be the effect of, 1. a promise, 2. a benefit, or 3. an injury: and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle, the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice. ^158

[Footnote 158: The Institutes of Caius, (l. ii. tit. ix. x. p. 144 - 214,) of Justinian, (l. iii. tit. xiv. - xxx. l. iv. tit. i. - vi.,) and of Theophilus, (p. 616 - 837,) distinguish four sorts of obligations - aut re, aut verbis, aut literis aut consensu: but I confess myself partial to my own division. Note: It is not at all applicable to the Roman system of contracts, even if I were allowed to be good. - M.]

1. The goddess of faith (of human and social faith) was worshipped, not only in her temples, but in the lives of the Romans; and if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burdensome engagements. ^159 Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a naked pact, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a stipulation. Whatever might be the etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract, which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? was the solemn interrogation of Seius. I do promise, was the reply of Sempronius. The friends of Sempronius, who answered for his ability and inclination, might be separately sued at the option of Seius; and the benefit of partition, or order of reciprocal actions, insensibly deviated from the strict theory of stipulation. The most cautious and deliberate consent was justly required to sustain the validity of a gratuitous promise; and the citizen who might have obtained a legal security, incurred the suspicion of fraud, and paid the forfeit of his neglect. But the ingenuity of the civilians successfully labored to convert simple engagements into the form of solemn stipulations. The praetors, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy. ^160

[Footnote 159: How much is the cool, rational evidence of Polybius (l. vi. p. 693, l. xxxi. p. 1459, 1460) superior to vague, indiscriminate applause - omnium maxime et praecipue fidem coluit, (A. Gellius, xx. l.)] [Footnote 160: The Jus Praetorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt, (Opp. tom. i. p. 483 - 564.) And I will here observe, that the universities of Holland and Brandenburg, in the beginning of the present century, appear to have studied the civil law on the most just and liberal principles.

Note: Simple agreements (pacta) formed as valid an obligation as a solemn contract. Only an action, or the right to a direct judicial prosecution, was not permitted in every case of compact. In all other respects, the judge was bound to maintain an agreement made by pactum. The stipulation was a form common to every kind of agreement, by which the right of action was given to this. - W.]

2. The obligations of the second class, as they were contracted by the delivery of a thing, are marked by the civilians with the epithet of real. ^161 A grateful return is due to the author of a benefit; and whoever is intrusted with the property of another, has bound himself to the sacred duty of restitution. In the case of a friendly loan, the merit of generosity is on the side of the lender only; in a deposit, on the side of the receiver; but in a pledge, and the rest of the selfish commerce of ordinary life, the benefit is compensated by an equivalent, and the obligation to restore is variously modified by the nature of the transaction. The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he had been accommodated for the temporary supply of his wants; in the latter, it was destined for his use and consumption, and he discharged this mutual engagement, by substituting the same specific value according to a just estimation of number, of weight, and of measure. In the contract of sale, the absolute dominion is transferred to the purchaser, and he repays the benefit with an adequate sum of gold or silver, the price and universal standard of all earthly possessions. The obligation of another contract, that of location, is of a more complicated kind. Lands or houses, labor or talents, may be hired for a definite term; at the expiration of the time, the thing itself must be restored to the owner, with an additional reward for the beneficial occupation and employment. In these lucrative contracts, to which may be added those of partnership and commissions, the civilians sometimes imagine the delivery of the object, and sometimes presume the consent of the parties. The substantial pledge has been refined into the invisible rights of a mortgage or hypotheca; and the agreement of sale, for a certain price, imputes, from that moment, the chances of gain or loss to the account of the purchaser. It may be fairly supposed, that every man will obey the dictates of his interest; and if he accepts the benefit, he is obliged to sustain the expense, of the transaction. In this boundless subject, the historian will observe the location of land and money, the rent of the one and the interest of the other, as they materially affect the prosperity of agriculture and commerce. The landlord was often obliged to advance the stock and instruments of husbandry, and to content himself with a partition of the fruits. If the feeble tenant was oppressed by accident, contagion, or hostile violence, he claimed a proportionable relief from the equity of the laws: five years were the customary term, and no solid or costly improvements could be expected from a farmer, who, at each moment might be ejected by the sale of the estate. ^162 Usury, ^163 the inveterate grievance of the city, had been discouraged by the Twelve Tables, ^164 and abolished by the clamors of the people. It was revived by their wants and idleness, tolerated by the discretion of the praetors, and finally determined by the Code of Justinian. Persons of illustrious rank were confined to the moderate profit of four per cent.; six was pronounced to be the ordinary and legal standard of interest; eight was allowed for the convenience of manufactures and merchants; twelve was granted to nautical insurance, which the wiser ancients had not attempted to define; but, except in this perilous adventure, the practice of exorbitant usury was severely restrained. ^165 The most simple interest was condemned by the clergy of the East and West; ^166 but the sense of mutual benefit, which had triumphed over the law of the republic, has resisted with equal firmness the decrees of the church, and even the prejudices of mankind. ^167

[Footnote 161: The nice and various subject of contracts by consent is spread over four books (xvii. - xx.) of the Pandects, and is one of the parts best deserving of the attention of an English student.

Note: This is erroneously called “benefits.” Gibbon enumerates various kinds of contracts, of which some alone are properly called benefits. - W.] [Footnote 162: The covenants of rent are defined in the Pandects (l. xix.) and the Code, (l. iv. tit. lxv.) The quinquennium, or term of five years, appears to have been a custom rather than a law; but in France all leases of land were determined in nine years. This limitation was removed only in the year 1775, (Encyclopedie Methodique, tom. i. de la Jurisprudence, p. 668, 669;) and I am sorry to observe that it yet prevails in the beauteous and happy country where I am permitted to reside.]

[Footnote 163: I might implicitly acquiesce in the sense and learning of the three books of G. Noodt, de foenore et usuris. (Opp. tom. i. p. 175 - 268.) The interpretation of the asses or centesimoe usuroe at twelve, the unciarioe at one per cent., is maintained by the best critics and civilians: Noodt, (l. ii. c. 2, p. 207,) Gravina, (Opp. p. 205, &c., 210,) Heineccius, (Antiquitat. ad Institut. l. iii. tit. xv.,) Montesquieu, (Esprit des Loix, l. xxii. c. 22, tom. ii. p. 36. Defense de l'Esprit des Loix, tom. iii. p. 478, &c.,) and above all, John Frederic Gronovius (de Pecunia Veteri, l. iii. c. 13, p. 213 - 227, and his three Antexegeses, p. 455 - 655, the founder, or at least the champion, of this probable opinion; which is, however, perplexed with some difficulties.]

[Footnote 164: Primo xii. Tabulis sancitum est ne quis unciario foenore amplius exerceret, (Tacit. Annal. vi. 16.) Pour peu (says Montesquieu, Esprit des Loix, l. xxii. 22) qu'on soit verse dans l'histoire de Rome, on verra qu'une pareille loi ne devoit pas etre l'ouvrage des decemvirs. Was Tacitus ignorant - or stupid? But the wiser and more virtuous patricians might sacrifice their avarice to their ambition, and might attempt to check the odious practice by such interest as no lender would accept, and such penalties as no debtor would incur.

Note: The real nature of the foenus unciarium has been proved; it amounted in a year of twelve months to ten per cent. See, in the Magazine for Civil Law, by M. Hugo, vol. v. p. 180, 184, an article of M. Schrader, following up the conjectures of Niebuhr, Hist. Rom. tom. ii. p. 431. - W. Compare a very clear account of this question in the appendix to Mr. Travers Twiss's Epitome of Niebuhr, vol. ii. p. 257. - M.] [Footnote 165: Justinian has not condescended to give usury a place in his Institutes; but the necessary rules and restrictions are inserted in the Pandects (l. xxii. tit. i. ii.) and the Code, (l. iv. tit. xxxii. xxxiii.)] [Footnote 166: The Fathers are unanimous, (Barbeyrac, Morale des Peres, p. 144. &c.:) Cyprian, Lactantius, Basil, Chrysostom, (see his frivolous arguments in Noodt, l. i. c. 7, p. 188,) Gregory of Nyssa, Ambrose, Jerom, Augustin, and a host of councils and casuists.]

[Footnote 167: Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of foenus, the principal is supposed to generate the interest: a breed of barren metal, exclaims Shakespeare - and the stage is the echo of the public voice.] 3. Nature and society impose the strict obligation of repairing an injury; and the sufferer by private injustice acquires a personal right and a legitimate action. If the property of another be intrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such temporary possession; we are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author. ^168 A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim. They were restored by the sentence of the praetor, and the injury was compensated by double, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact, or detected by a subsequent research. The Aquilian law ^169 defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence: the highest price was allowed that could be ascribed to the domestic animal at any moment of the year preceding his death; a similar latitude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual: the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the decemvirs had confounded all hasty insults, which did not amount to the fracture of a limb, by condemning the aggressor to the common penalty of twenty-five asses. But the same denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce: and the insolence of a wealthy Roman indulged himself in the cheap amusement of breaking and satisfying the law of the twelve tables. Veratius ran through the streets striking on the face the inoffensive passengers, and his attendant purse-bearer immediately silenced their clamors by the legal tender of twenty-five pieces of copper, about the value of one shilling. ^170 The equity of the praetors examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages, the magistrate assumed a right to consider the various circumstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person; but if he admitted the idea of a fine, a punishment, an example, he invaded the province, though, perhaps, he supplied the defects, of the criminal law. [Footnote 168: Sir William Jones has given an ingenious and rational Essay on the law of Bailment, (London, 1781, p. 127, in 8vo.) He is perhaps the only lawyer equally conversant with the year-books of Westminster, the Commentaries of Ulpian, the Attic pleadings of Isaeus, and the sentences of Arabian and Persian cadhis.]

[Footnote 169: Noodt (Opp. tom. i. p. 137 - 172) has composed a separate treatise, ad Legem Aquilian, (Pandect. l. ix. tit. ii.)]

[Footnote 170: Aulus Gellius (Noct. Attic. xx. i.) borrowed this story from the Commentaries of Q. Labeo on the xii. tables.]

The execution of the Alban dictator, who was dismembered by eight horses, is represented by Livy as the first and the fast instance of Roman cruelty in the punishment of the most atrocious crimes. ^171 But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The twelve tables afford a more decisive proof of the national spirit, since they were framed by the wisest of the senate, and accepted by the free voices of the people; yet these laws, like the statutes of Draco, ^172 are written in characters of blood. ^173 They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastisements of flagellation and servitude; and nine crimes of a very different complexion are adjudged worthy of death.

1. Any act of treason against the state, or of correspondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and after he had been scourged by the lictor, he was suspended in the midst of the forum on a cross, or inauspicious tree.

2. Nocturnal meetings in the city; whatever might be the pretence, of pleasure, or religion, or the public good.

3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic, and the chaste virtues of the Roman matrons. ^174 The parricide, who violated the duties of nature and gratitude, was cast into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added, as the most suitable companions. ^175 Italy produces no monkeys; but the want could never be felt, till the middle of the sixth century first revealed the guilt of a parricide. ^176

4. The malice of an incendiary. After the previous ceremony of whipping, he himself was delivered to the flames; and in this example alone our reason is tempted to applaud the justice of retaliation.

5. Judicial perjury. The corrupt or malicious witness was thrown headlong from the Tarpeian rock, to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws, and the deficiency of written evidence.

6. The corruption of a judge, who accepted bribes to pronounce an iniquitous sentence.

7. Libels and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastisement, but it is not certain that he was left to expire under the blows of the executioner. ^177

8. The nocturnal mischief of damaging or destroying a neighbor's corn. The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twenty-five pounds of copper. 9. Magical incantations; which had power, in the opinion of the Latin shepherds, to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deep-rooted plantations.

The cruelty of the twelve tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism. ^178 ^* After the judicial proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow- citizen. In this private prison, twelve ounces of rice were his daily food; he might be bound with a chain of fifteen pounds weight; and his misery was thrice exposed in the market place, to solicit the compassion of his friends and countrymen. At the expiration of sixty days, the debt was discharged by the loss of liberty or life; the insolvent debtor was either put to death, or sold in foreign slavery beyond the Tyber: but, if several creditors were alike obstinate and unrelenting, they might legally dismember his body, and satiate their revenge by this horrid partition. The advocates for this savage law have insisted, that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge; but experience would dissipate this salutary terror, by proving that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the decemvirs was abolished by the humanity of accusers, witnesses, and judges; and impunity became the consequence of immoderate rigor. The Porcian and Valerian laws prohibited the magistrates from inflicting on a free citizen any capital, or even corporal, punishment; and the obsolete statutes of blood were artfully, and perhaps truly, ascribed to the spirit, not of patrician, but of regal, tyranny.

[Footnote 171: The narrative of Livy (i. 28) is weighty and solemn. At tu, Albane, maneres, is a harsh reflection, unworthy of Virgil's humanity, (Aeneid, viii. 643.) Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Aencas, (tom. iii. p. 229.)] [Footnote 172: The age of Draco (Olympiad xxxix. l) is fixed by Sir John Marsham (Canon Chronicus, p. 593 - 596) and Corsini, (Fasti Attici, tom. iii. p. 62.) For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c.]

[Footnote 173: The viith, de delictis, of the xii. tables is delineated by Gravina, (Opp. p. 292, 293, with a commentary, p. 214 - 230.) Aulus Gellius (xx. 1) and the Collatio Legum Mosaicarum et Romanarum afford much original information.]

[Footnote 174: Livy mentions two remarkable and flagitious aeras, of 3000 persons accused, and of 190 noble matrons convicted, of the crime of poisoning, (xl. 43, viii. 18.) Mr. Hume discriminates the ages of private and public virtue, (Essays, vol. i. p. 22, 23.) I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation.] [Footnote 175: The xii. tables and Cicero (pro Roscio Amerino, c. 25, 26) are content with the sack; Seneca (Excerpt. Controvers. v 4) adorns it with serpents; Juvenal pities the guiltless monkey (innoxia simia - 156.) Adrian (apud Dositheum Magistrum, l. iii. c. p. 874 - 876, with Schulting's Note,) Modestinus, (Pandect. xlviii. tit. ix. leg. 9,) Constantine, (Cod. l. ix. tit. xvii.,) and Justinian, (Institut. l. iv. tit. xviii.,) enumerate all the companions of the parricide. But this fanciful execution was simplified in practice. Hodie tamen viv exuruntur vel ad bestias dantur, (Paul. Sentent. Recept. l. v. tit. xxiv p. 512, edit. Schulting.)]

[Footnote 176: The first parricide at Rome was L. Ostius, after the second Punic war, (Plutarch, in Romulo, tom. i. p. 54.) During the Cimbric, P. Malleolus was guilty of the first matricide, (Liv. Epitom. l. lxviii.)] [Footnote 177: Horace talks of the formidine fustis, (l. ii. epist. ii. 154,) but Cicero (de Republica, l. iv. apud Augustin. de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393, edit. Olivet) affirms that the decemvirs made libels a capital offence: cum perpaucas res capite sanxisent - perpaucus!]

[Footnote 178: Bynkershoek (Observat. Juris Rom. l. i. c. 1, in Opp. tom. i. p. 9, 10, 11) labors to prove that the creditors divided not the body, but the price, of the insolvent debtor. Yet his interpretation is one perpetual harsh metaphor; nor can he surmount the Roman authorities of Quintilian, Caecilius, Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi.] [Footnote *: Hugo (Histoire du Droit Romain, tom. i. p. 234) concurs with Gibbon See Niebuhr, vol. ii. p. 313. - M.]

In the absence of penal laws, and the insufficiency of civil actions, the peace and justice of the city were imperfectly maintained by the private jurisdiction of the citizens. The malefactors who replenish our jails are the outcasts of society, and the crimes for which they suffer may be commonly ascribed to ignorance, poverty, and brutal appetite. For the perpetration of similar enormities, a vile plebeian might claim and abuse the sacred character of a member of the republic: but, on the proof or suspicion of guilt, the slave, or the stranger, was nailed to a cross; and this strict and summary justice might be exercised without restraint over the greatest part of the populace of Rome. Each family contained a domestic tribunal, which was not confined, like that of the praetor, to the cognizance of external actions: virtuous principles and habits were inculcated by the discipline of education; and the Roman father was accountable to the state for the manners of his children, since he disposed, without appeal, of their life, their liberty, and their inheritance. In some pressing emergencies, the citizen was authorized to avenge his private or public wrongs. The consent of the Jewish, the Athenian, and the Roman laws approved the slaughter of the nocturnal thief; though in open daylight a robber could not be slain without some previous evidence of danger and complaint. Whoever surprised an adulterer in his nuptial bed might freely exercise his revenge; ^179 the most bloody and wanton outrage was excused by the provocation; ^180 nor was it before the reign of Augustus that the husband was reduced to weigh the rank of the offender, or that the parent was condemned to sacrifice his daughter with her guilty seducer. After the expulsion of the kings, the ambitious Roman, who should dare to assume their title or imitate their tyranny, was devoted to the infernal gods: each of his fellow-citizens was armed with the sword of justice; and the act of Brutus, however repugnant to gratitude or prudence, had been already sanctified by the judgment of his country. ^181 The barbarous practice of wearing arms in the midst of peace, ^182 and the bloody maxims of honor, were unknown to the Romans; and, during the two purest ages, from the establishment of equal freedom to the end of the Punic wars, the city was never disturbed by sedition, and rarely polluted with atrocious crimes. The failure of penal laws was more sensibly felt, when every vice was inflamed by faction at home and dominion abroad. In the time of Cicero, each private citizen enjoyed the privilege of anarchy; each minister of the republic was exalted to the temptations of regal power, and their virtues are entitled to the warmest praise, as the spontaneous fruits of nature or philosophy. After a triennial indulgence of lust, rapine, and cruelty, Verres, the tyrant of Sicily, could only be sued for the pecuniary restitution of three hundred thousand pounds sterling; and such was the temper of the laws, the judges, and perhaps the accuser himself, ^183 that, on refunding a thirteenth part of his plunder, Verres could retire to an easy and luxurious exile. ^184 [Footnote 179: The first speech of Lysias (Reiske, Orator. Graec. tom. v. p. 2 - 48) is in defence of a husband who had killed the adulterer. The rights of husbands and fathers at Rome and Athens are discussed with much learning by Dr. Taylor, (Lectiones Lysiacae, c. xi. in Reiske, tom. vi. p. 301 - 308.)] [Footnote 180: See Casaubon ad Athenaeum, l. i. c. 5, p. 19. Percurrent raphanique mugilesque, (Catull. p. 41, 42, edit. Vossian.) Hunc mugilis intrat, (Juvenal. Satir. x. 317.) Hunc perminxere calones, (Horat l. i. Satir. ii. 44.) Familiae stuprandum dedit . . fraudi non fuit, (Val. Maxim. l. vi. c. l, No. 13.)]

[Footnote 181: This law is noticed by Livy (ii. 8) and Plutarch, (in Publiccla, tom. i. p. 187,) and it fully justifies the public opinion on the death of Caesar which Suetonius could publish under the Imperial government. Jure caesus existimatur, (in Julio, c. 76.) Read the letters that passed between Cicero and Matius a few months after the ides of March (ad Fam. xi. 27, 28.)]

[Footnote 182: Thucydid. l. i. c. 6 The historian who considers this circumstance as the test of civilization, would disdain the barbarism of a European court]

[Footnote 183: He first rated at millies (800,000l.) the damages of Sicily, (Divinatio in Caecilium, c. 5,) which he afterwards reduced to quadringenties, (320,000l. - 1 Actio in Verrem, c. 18,) and was finally content with tricies, (24,000l.) Plutarch (in Ciceron. tom. iii. p. 1584) has not dissembled the popular suspicion and report.]

[Footnote 184: Verres lived near thirty years after his trial, till the second triumvirate, when he was proscribed by the taste of Mark Antony for the sake of his Corinthian plate, (Plin. Hist. Natur. xxxiv. 3.)]

The first imperfect attempt to restore the proportion of crimes and punishments was made by the dictator Sylla, who, in the midst of his sanguinary triumph, aspired to restrain the license, rather than to oppress the liberty, of the Romans. He gloried in the arbitrary proscription of four thousand seven hundred citizens. ^185 But, in the character of a legislator, he respected the prejudices of the times; and, instead of pronouncing a sentence of death against the robber or assassin, the general who betrayed an army, or the magistrate who ruined a province, Sylla was content to aggravate the pecuniary damages by the penalty of exile, or, in more constitutional language, by the interdiction of fire and water. The Cornelian, and afterwards the Pompeian and Julian, laws introduced a new system of criminal jurisprudence; ^186 and the emperors, from Augustus to Justinian, disguised their increasing rigor under the names of the original authors. But the invention and frequent use of extraordinary pains proceeded from the desire to extend and conceal the progress of despotism. In the condemnation of illustrious Romans, the senate was always prepared to confound, at the will of their masters, the judicial and legislative powers. It was the duty of the governors to maintain the peace of their province, by the arbitrary and rigid administration of justice; the freedom of the city evaporated in the extent of empire, and the Spanish malefactor, who claimed the privilege of a Roman, was elevated by the command of Galba on a fairer and more lofty cross. ^187 Occasional rescripts issued from the throne to decide the questions which, by their novelty or importance, appeared to surpass the authority and discernment of a proconsul. Transportation and beheading were reserved for honorable persons; meaner criminals were either hanged, or burnt, or buried in the mines, or exposed to the wild beasts of the amphitheatre. Armed robbers were pursued and extirpated as the enemies of society; the driving away horses or cattle was made a capital offence; ^188 but simple theft was uniformly considered as a mere civil and private injury. The degrees of guilt, and the modes of punishment, were too often determined by the discretion of the rulers, and the subject was left in ignorance of the legal danger which he might incur by every action of his life.

[Footnote 185: Such is the number assigned by Valer'us Maximus, (l. ix. c. 2, No. 1,) Florus (iv. 21) distinguishes 2000 senators and knights. Appian (de Bell. Civil. l. i. c. 95, tom. ii. p. 133, edit. Schweighauser) more accurately computes forty victims of the senatorian rank, and 1600 of the equestrian census or order.]

[Footnote 186: For the penal laws (Leges Corneliae, Pompeiae, Julae, of Sylla, Pompey, and the Caesars) see the sentences of Paulus, (l. iv. tit. xviii. - xxx. p. 497 - 528, edit. Schulting,) the Gregorian Code, (Fragment. l. xix. p. 705, 706, in Schulting,) the Collatio Legum Mosaicarum et Romanarum, (tit. i. - xv.,) the Theodosian Code, (l. ix.,) the Code of Justinian, (l. ix.,) the Pandects, (xlviii.,) the Institutes, (l. iv. tit. xviii.,) and the Greek version of Theophilus, (p. 917 - 926.)]

[Footnote 187: It was a guardian who had poisoned his ward. The crime was atrocious: yet the punishment is reckoned by Suetonius (c. 9) among the acts in which Galba showed himself acer, vehemens, et in delictis coercendis immodicus.]

[Footnote 188: The abactores or abigeatores, who drove one horse, or two mares or oxen, or five hogs, or ten goats, were subject to capital punishment, (Paul, Sentent. Recept. l. iv. tit. xviii. p. 497, 498.) Hadrian, (ad Concil. Baeticae,) most severe where the offence was most frequent, condemns the criminals, ad gladium, ludi damnationem, (Ulpian, de Officio Proconsulis, l. viii. in Collatione Legum Mosaic. et Rom. tit. xi p. 235.)] A sin, a vice, a crime, are the objects of theology, ethics, and jurisprudence. Whenever their judgments agree, they corroborate each other; but, as often as they differ, a prudent legislator appreciates the guilt and punishment according to the measure of social injury. On this principle, the most daring attack on the life and property of a private citizen is judged less atrocious than the crime of treason or rebellion, which invades the majesty of the republic: the obsequious civilians unanimously pronounced, that the republic is contained in the person of its chief; and the edge of the Julian law was sharpened by the incessant diligence of the emperors. The licentious commerce of the sexes may be tolerated as an impulse of nature, or forbidden as a source of disorder and corruption; but the fame, the fortunes, the family of the husband, are seriously injured by the adultery of the wife. The wisdom of Augustus, after curbing the freedom of revenge, applied to this domestic offence the animadversion of the laws: and the guilty parties, after the payment of heavy forfeitures and fines, were condemned to long or perpetual exile in two separate islands. ^189 Religion pronounces an equal censure against the infidelity of the husband; but, as it is not accompanied by the same civil effects, the wife was never permitted to vindicate her wrongs; ^190 and the distinction of simple or double adultery, so familiar and so important in the canon law, is unknown to the jurisprudence of the Code and the Pandects. I touch with reluctance, and despatch with impatience, a more odious vice, of which modesty rejects the name, and nature abominates the idea. The primitive Romans were infected by the example of the Etruscans ^191 and Greeks: ^192 and in the mad abuse of prosperity and power, every pleasure that is innocent was deemed insipid; and the Scatinian law, ^193 which had been extorted by an act of violence, was insensibly abolished by the lapse of time and the multitude of criminals. By this law, the rape, perhaps the seduction, of an ingenuous youth, was compensated, as a personal injury, by the poor damages of ten thousand sesterces, or fourscore pounds; the ravisher might be slain by the resistance or revenge of chastity; and I wish to believe, that at Rome, as in Athens, the voluntary and effeminate deserter of his sex was degraded from the honors and the rights of a citizen. ^194 But the practice of vice was not discouraged by the severity of opinion: the indelible stain of manhood was confounded with the more venial transgressions of fornication and adultery, nor was the licentious lover exposed to the same dishonor which he impressed on the male or female partner of his guilt. From Catullus to Juvenal, ^195 the poets accuse and celebrate the degeneracy of the times; and the reformation of manners was feebly attempted by the reason and authority of the civilians till the most virtuous of the Caesars proscribed the sin against nature as a crime against society. ^196

[Footnote 189: Till the publication of the Julius Paulus of Schulting, (l. ii. tit. xxvi. p. 317 - 323,) it was affirmed and believed that the Julian laws punished adultery with death; and the mistake arose from the fraud or error of Tribonian. Yet Lipsius had suspected the truth from the narratives of Tacitus, (Annal. ii. 50, iii. 24, iv. 42,) and even from the practice of Augustus, who distinguished the treasonable frailties of his female kindred.] [Footnote 190: In cases of adultery, Severus confined to the husband the right of public accusation, (Cod. Justinian, l. ix. tit. ix. leg. 1.) Nor is this privilege unjust - so different are the effects of male or female infidelity.] [Footnote 191: Timon (l. i.) and Theopompus (l. xliii. apud Athenaeum, l. xii. p. 517) describe the luxury and lust of the Etruscans. About the same period (A. U. C. 445) the Roman youth studied in Etruria, (liv. ix. 36.)] [Footnote 192: The Persians had been corrupted in the same school, (Herodot. l. i. c. 135.) A curious dissertation might be formed on the introduction of paederasty after the time of Homer, its progress among the Greeks of Asia and Europe, the vehemence of their passions, and the thin device of virtue and friendship which amused the philosophers of Athens. But scelera ostendi oportet dum puniuntur, abscondi flagitia.]

[Footnote 193: The name, the date, and the provisions of this law are equally doubtful, (Gravina, Opp. p. 432, 433. Heineccius, Hist. Jur. Rom. No. 108. Ernesti, Clav. Ciceron. in Indice Legum.) But I will observe that the nefanda Venus of the honest German is styled aversa by the more polite Italian.] [Footnote 194: See the oration of Aeschines against the catamite Timarchus, (in Reiske, Orator. Graec. tom. iii. p. 21 - 184.)]

[Footnote 195: A crowd of disgraceful passages will force themselves on the memory of the classic reader: I will only remind him of the cool declaration of Ovid: -

Odi concubitus qui non utrumque resolvant. Hoc est quod puerum tangar amore minus.]

[Footnote 196: Aelius Lampridius, in Vit. Heliogabal. in Hist. August p. 112 Aurelius Victor, in Philippo, Codex Theodos. l. ix. tit. vii. leg. 7, and Godefroy's Commentary, tom. iii. p. 63. Theodosius abolished the subterraneous brothels of Rome, in which the prostitution of both sexes was acted with impunity.]

A new spirit of legislation, respectable even in its error, arose in the empire with the religion of Constantine. ^197 The laws of Moses were received as the divine original of justice, and the Christian princes adapted their penal statutes to the degrees of moral and religious turpitude. Adultery was first declared to be a capital offence: the frailty of the sexes was assimilated to poison or assassination, to sorcery or parricide; the same penalties were inflicted on the passive and active guilt of paederasty; and all criminals of free or servile condition were either drowned or beheaded, or cast alive into the avenging flames. The adulterers were spared by the common sympathy of mankind; but the lovers of their own sex were pursued by general and pious indignation: the impure manners of Greece still prevailed in the cities of Asia, and every vice was fomented by the celibacy of the monks and clergy. Justinian relaxed the punishment at least of female infidelity: the guilty spouse was only condemned to solitude and penance, and at the end of two years she might be recalled to the arms of a forgiving husband. But the same emperor declared himself the implacable enemy of unmanly lust, and the cruelty of his persecution can scarcely be excused by the purity of his motives. ^198 In defiance of every principle of justice, he stretched to past as well as future offences the operations of his edicts, with the previous allowance of a short respite for confession and pardon. A painful death was inflicted by the amputation of the sinful instrument, or the insertion of sharp reeds into the pores and tubes of most exquisite sensibility; and Justinian defended the propriety of the execution, since the criminals would have lost their hands, had they been convicted of sacrilege. In this state of disgrace and agony, two bishops, Isaiah of Rhodes and Alexander of Diospolis, were dragged through the streets of Constantinople, while their brethren were admonished, by the voice of a crier, to observe this awful lesson, and not to pollute the sanctity of their character. Perhaps these prelates were innocent. A sentence of death and infamy was often founded on the slight and suspicious evidence of a child or a servant: the guilt of the green faction, of the rich, and of the enemies of Theodora, was presumed by the judges, and paederasty became the crime of those to whom no crime could be imputed. A French philosopher ^199 has dared to remark that whatever is secret must be doubtful, and that our natural horror of vice may be abused as an engine of tyranny. But the favorable persuasion of the same writer, that a legislator may confide in the taste and reason of mankind, is impeached by the unwelcome discovery of the antiquity and extent of the disease. ^200

[Footnote 197: See the laws of Constantine and his successors against adultery, sodomy &c., in the Theodosian, (l. ix. tit. vii. leg. 7, l. xi. tit. xxxvi leg. 1, 4) and Justinian Codes, (l. ix. tit. ix. leg. 30, 31.) These princes speak the language of passion as well as of justice, and fraudulently ascribe their own severity to the first Caesars.]

[Footnote 198: Justinian, Novel. lxxvii. cxxxiv. cxli. Procopius in Anecdot. c. 11, 16, with the notes of Alemannus. Theophanes, p. 151. Cedrenus. p. 688. Zonaras, l. xiv. p. 64.]

[Footnote 199: Montesquieu, Esprit des Loix, l. xii. c. 6. That eloquent philosopher conciliates the rights of liberty and of nature, which should never be placed in opposition to each other.]

[Footnote 200: For the corruption of Palestine, 2000 years before the Christian aera, see the history and laws of Moses. Ancient Gaul is stigmatized by Diodorus Siculus, (tom. i. l. v. p. 356,) China by the Mahometar and Christian travellers, (Ancient Relations of India and China, p. 34 translated by Renaudot, and his bitter critic the Pere Premare, Lettres Edifiantes, tom. xix. p. 435,) and native America by the Spanish historians, (Garcilasso de la Vega, l. iii. c. 13, Rycaut's translation; and Dictionnaire de Bayle, tom. iii. p. 88.) I believe, and hope, that the negroes, in their own country, were exempt from this moral pestilence.]

The free citizens of Athens and Rome enjoyed, in all criminal cases, the invaluable privilege of being tried by their country. ^201 1. The administration of justice is the most ancient office of a prince: it was exercised by the Roman kings, and abused by Tarquin; who alone, without law or council, pronounced his arbitrary judgments. The first consuls succeeded to this regal prerogative; but the sacred right of appeal soon abolished the jurisdiction of the magistrates, and all public causes were decided by the supreme tribunal of the people. But a wild democracy, superior to the forms, too often disdains the essential principles, of justice: the pride of despotism was envenomed by plebeian envy, and the heroes of Athens might sometimes applaud the happiness of the Persian, whose fate depended on the caprice of a single tyrant. Some salutary restraints, imposed by the people or their own passions, were at once the cause and effect of the gravity and temperance of the Romans. The right of accusation was confined to the magistrates. A vote of the thirty five tribes could inflict a fine; but the cognizance of all capital crimes was reserved by a fundamental law to the assembly of the centuries, in which the weight of influence and property was sure to preponderate. Repeated proclamations and adjournments were interposed, to allow time for prejudice and resentment to subside: the whole proceeding might be annulled by a seasonable omen, or the opposition of a tribune; and such popular trials were commonly less formidable to innocence than they were favorable to guilt. But this union of the judicial and legislative powers left it doubtful whether the accused party was pardoned or acquitted; and, in the defence of an illustrious client, the orators of Rome and Athens address their arguments to the policy and benevolence, as well as to the justice, of their sovereign. 2. The task of convening the citizens for the trial of each offender became more difficult, as the citizens and the offenders continually multiplied; and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates, or to extraordinary inquisitors. In the first ages these questions were rare and occasional. In the beginning of the seventh century of Rome they were made perpetual: four praetors were annually empowered to sit in judgment on the state offences of treason, extortion, peculation, and bribery; and Sylla added new praetors and new questions for those crimes which more directly injure the safety of individuals. By these inquisitors the trial was prepared and directed; but they could only pronounce the sentence of the majority of judges, who with some truth, and more prejudice, have been compared to the English juries. ^202 To discharge this important, though burdensome office, an annual list of ancient and respectable citizens was formed by the praetor. After many constitutional struggles, they were chosen in equal numbers from the senate, the equestrian order, and the people; four hundred and fifty were appointed for single questions; and the various rolls or decuries of judges must have contained the names of some thousand Romans, who represented the judicial authority of the state. In each particular cause, a sufficient number was drawn from the urn; their integrity was guarded by an oath; the mode of ballot secured their independence; the suspicion of partiality was removed by the mutual challenges of the accuser and defendant; and the judges of Milo, by the retrenchment of fifteen on each side, were reduced to fifty-one voices or tablets, of acquittal, of condemnation, or of favorable doubt. ^203 3. In his civil jurisdiction, the praetor of the city was truly a judge, and almost a legislator; but, as soon as he had prescribed the action of law, he often referred to a delegate the determination of the fact. With the increase of legal proceedings, the tribunal of the centumvirs, in which he presided, acquired more weight and reputation. But whether he acted alone, or with the advice of his council, the most absolute powers might be trusted to a magistrate who was annually chosen by the votes of the people. The rules and precautions of freedom have required some explanation; the order of despotism is simple and inanimate. Before the age of Justinian, or perhaps of Diocletian, the decuries of Roman judges had sunk to an empty title: the humble advice of the assessors might be accepted or despised; and in each tribunal the civil and criminal jurisdiction was administered by a single magistrate, who was raised and disgraced by the will of the emperor. [Footnote 201: The important subject of the public questions and judgments at Rome, is explained with much learning, and in a classic style, by Charles Sigonius, (l. iii. de Judiciis, in Opp. tom. iii. p. 679 - 864;) and a good abridgment may be found in the Republique Romaine of Beaufort, (tom. ii. l. v. p. 1 - 121.) Those who wish for more abstruse law may study Noodt, (de Jurisdictione et Imperio Libri duo, tom. i. p. 93 - 134,) Heineccius, (ad Pandect. l. i. et ii. ad Institut. l. iv. tit. xvii Element. ad Antiquitat.) and Gravina (Opp. 230 - 251.)]

[Footnote 202: The office, both at Rome and in England, must be considered as an occasional duty, and not a magistracy, or profession. But the obligation of a unanimous verdict is peculiar to our laws, which condemn the jurymen to undergo the torture from whence they have exempted the criminal.] [Footnote 203: We are indebted for this interesting fact to a fragment of Asconius Pedianus, who flourished under the reign of Tiberius. The loss of his Commentaries on the Orations of Cicero has deprived us of a valuable fund of historical and legal knowledge.]

A Roman accused of any capital crime might prevent the sentence of the law by voluntary exile, or death. Till his guilt had been legally proved, his innocence was presumed, and his person was free: till the votes of the last century had been counted and declared, he might peaceably secede to any of the allied cities of Italy, or Greece, or Asia. ^204 His fame and fortunes were preserved, at least to his children, by this civil death; and he might still be happy in every rational and sensual enjoyment, if a mind accustomed to the ambitious tumult of Rome could support the uniformity and silence of Rhodes or Athens. A bolder effort was required to escape from the tyranny of the Caesars; but this effort was rendered familiar by the maxims of the stoics, the example of the bravest Romans, and the legal encouragements of suicide. The bodies of condemned criminals were exposed to public ignominy, and their children, a more serious evil, were reduced to poverty by the confiscation of their fortunes. But, if the victims of Tiberius and Nero anticipated the decree of the prince or senate, their courage and despatch were recompensed by the applause of the public, the decent honors of burial, and the validity of their testaments. ^205 The exquisite avarice and cruelty of Domitian appear to have deprived the unfortunate of this last consolation, and it was still denied even by the clemency of the Antonines. A voluntary death, which, in the case of a capital offence, intervened between the accusation and the sentence, was admitted as a confession of guilt, and the spoils of the deceased were seized by the inhuman claims of the treasury. ^206 Yet the civilians have always respected the natural right of a citizen to dispose of his life; and the posthumous disgrace invented by Tarquin, ^207 to check the despair of his subjects, was never revived or imitated by succeeding tyrants. The powers of this world have indeed lost their dominion over him who is resolved on death; and his arm can only be restrained by the religious apprehension of a future state. Suicides are enumerated by Virgil among the unfortunate, rather than the guilty; ^208 and the poetical fables of the infernal shades could not seriously influence the faith or practice of mankind. But the precepts of the gospel, or the church, have at length imposed a pious servitude on the minds of Christians, and condemn them to expect, without a murmur, the last stroke of disease or the executioner. [Footnote 204: Polyb. l. vi. p. 643. The extension of the empire and city of Rome obliged the exile to seek a more distant place of retirement.] [Footnote 205: Qui de se statuebant, humabanta corpora, manebant testamenta; pretium festinandi. Tacit. Annal. vi. 25, with the Notes of Lipsius.] [Footnote 206: Julius Paulus, (Sentent. Recept. l. v. tit. xii. p. 476,) the Pandects, (xlviii. tit. xxi.,) the Code, (l. ix. tit. l.,) Bynkershoek, (tom. i. p. 59, Observat. J. C. R. iv. 4,) and Montesquieu, (Esprit des Loix, l. xxix. c. ix.,) define the civil limitations of the liberty and privileges of suicide. The criminal penalties are the production of a later and darker age.]

[Footnote 207: Plin. Hist. Natur. xxxvi. 24. When he fatigued his subjects in building the Capitol, many of the laborers were provoked to despatch themselves: he nailed their dead bodies to crosses.]

[Footnote 208: The sole resemblance of a violent and premature death has engaged Virgil (Aeneid, vi. 434 - 439) to confound suicides with infants, lovers, and persons unjustly condemned. Heyne, the best of his editors, is at a loss to deduce the idea, or ascertain the jurisprudence, of the Roman poet.] The penal statutes form a very small proportion of the sixty-two books of the Code and Pandects; and in all judicial proceedings, the life or death of a citizen is determined with less caution or delay than the most ordinary question of covenant or inheritance. This singular distinction, though something may be allowed for the urgent necessity of defending the peace of society, is derived from the nature of criminal and civil jurisprudence. Our duties to the state are simple and uniform: the law by which he is condemned is inscribed not only on brass or marble, but on the conscience of the offender, and his guilt is commonly proved by the testimony of a single fact. But our relations to each other are various and infinite; our obligations are created, annulled, and modified, by injuries, benefits, and promises; and the interpretation of voluntary contracts and testaments, which are often dictated by fraud or ignorance, affords a long and laborious exercise to the sagacity of the judge. The business of life is multiplied by the extent of commerce and dominion, and the residence of the parties in the distant provinces of an empire is productive of doubt, delay, and inevitable appeals from the local to the supreme magistrate. Justinian, the Greek emperor of Constantinople and the East, was the legal successor of the Latin shepherd who had planted a colony on the banks of the Tyber. In a period of thirteen hundred years, the laws had reluctantly followed the changes of government and manners; and the laudable desire of conciliating ancient names with recent institutions destroyed the harmony, and swelled the magnitude, of the obscure and irregular system. The laws which excuse, on any occasions, the ignorance of their subjects, confess their own imperfections: the civil jurisprudence, as it was abridged by Justinian, still continued a mysterious science, and a profitable trade, and the innate perplexity of the study was involved in tenfold darkness by the private industry of the practitioners. The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge. The experience of an abuse, from which our own age and country are not perfectly exempt, may sometimes provoke a generous indignation, and extort the hasty wish of exchanging our elaborate jurisprudence for the simple and summary decrees of a Turkish cadhi. Our calmer reflection will suggest, that such forms and delays are necessary to guard the person and property of the citizen; that the discretion of the judge is the first engine of tyranny; and that the laws of a free people should foresee and determine every question that may probably arise in the exercise of power and the transactions of industry. But the government of Justinian united the evils of liberty and servitude; and the Romans were oppressed at the same time by the multiplicity of their laws and the arbitrary will of their master.