the invaluable privilege of being tried by their country. 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 prÊtors were annually empowered to sit in
judgment on the state offences of treason, extortion, peculation, and
bribery; and Sylla added new prÊtors 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. To
discharge this important, though burdensome office, an annual list of
ancient and respectable citizens was formed by the prÊtor. 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. 3. In his civil
jurisdiction, the prÊtor 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.
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. 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 CÊsars; 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. 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. Yet the civilians have
always respected the natural right of a citizen to dispose of his life;
and the posthumous disgrace invented by Tarquin, 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; 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.
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.
Chapter XLV: State Of Italy Under The Lombards.--Part I.
Reign Of The Younger Justin.--Embassy Of The Avars.--Their
Settlement On The Danube.--Conquest Of Italy By The
Lombards.--Adoption And Reign Of Tiberius.--Of Maurice.--
State Of Italy Under The Lombards And The Exarchs.--Of
Ravenna.--Distress Of Rome.--Character And Pontificate Of
Gregory The First.
During the last years of Justinian, his infirm mind was devoted to
heavenly contemplation, and he neglected the business of the lower
world. His subjects were impatient of the long continuance of his life
and reign: yet all who were capable of reflection apprehended the moment
of his death, which might involve the capital in tumult, and the empire
in civil war. Seven nephews of the childless monarch, the sons or
grandsons of his brother and sister, had been educated in the splendor
of a princely fortune; they had been shown in high commands to the
provinces and armies; their characters were known, their followers were
zealous, and, as the jealousy of age postponed the declaration of a
successor, they might expect with equal hopes the inheritance of their
uncle. He expired in his palace, after a reign of thirty-eight years;
and the decisive opportunity was embraced by the friends of Justin, the
son of Vigilantia. At the hour of midnight, his domestics were awakened
by an importunate crowd, who thundered at his door, and obtained
admittance by revealing themselves to be the principal members of the
senate. These welcome deputies announced the recent and momentous secret
of the emperor's decease; reported, or perhaps invented, his dying
choice of the best beloved and most deserving of his nephews, and
conjured Justin to prevent the disorders of the multitude, if they
should perceive, with the return of light, that they were left without a
master. After composing his countenance to surprise, sorrow, and decent
modesty, Justin, by the advice of his wife Sophia, submitted to the
authority of the senate. He was conducted with speed and silence to
the palace; the guards saluted their new sovereign; and the martial and
religious rites of his coronation were diligently accomplished. By the
hands of the proper officers he was invested with the Imperial garments,
the red buskins, white tunic, and purple robe. A fortunate soldier, whom
he instantly promoted to the rank of tribune, encircled his neck with
a military collar; four robust youths exalted him on a shield; he stood
firm and erect to receive the adoration of his subjects; and their
choice was sanctified by the benediction of the patriarch, who imposed
the diadem on the head of an orthodox prince. The hippodrome was already
filled with innumerable multitudes; and no sooner did the emperor appear
on his throne, than the voices of the blue and the green factions were
confounded in the same loyal acclamations. In the speeches which Justin
addressed to the senate and people, he promised to correct the abuses
which had disgraced the age of his predecessor, displayed the maxims of
a just and beneficent government, and declared that, on the approaching
calends of January, he would revive in his own person the name and
liberty of a Roman consul. The immediate discharge of his uncle's
debts exhibited a solid pledge of his faith and generosity: a train
of porters, laden with bags of gold, advanced into the midst of the
hippodrome, and the hopeless creditors of Justinian accepted this
equitable payment as a voluntary gift. Before the end of three years,
his example was imitated and surpassed by the empress Sophia, who
delivered many indigent citizens from the weight of debt and usury: an
act of benevolence the best entitled to gratitude, since it relieves the
most intolerable distress; but in which the bounty of a prince is the
most liable to be abused by the claims of prodigality and fraud.
On the seventh day of his reign, Justin gave audience to the ambassadors
of the Avars, and the scene was decorated to impress the Barbarians with
astonishment, veneration, and terror. From the palace gate, the spacious
courts and long porticos were lined with the lofty crests and gilt
bucklers of the guards, who presented their spears and axes with more
confidence than they would have shown in a field of battle. The officers
who exercised the power, or attended the person, of the prince, were
attired in their richest habits, and arranged according to the military
and civil order of the hierarchy. When the veil of the sanctuary was
withdrawn, the ambassadors beheld the emperor of the East on his throne,
beneath a canopy, or dome, which was supported by four columns, and
crowned with a winged figure of Victory. In the first emotions of
surprise, they submitted to the servile adoration of the Byzantine
court; but as soon as they rose from the ground, Targetius, the chief
of the embassy, expressed the freedom and pride of a Barbarian. He
extolled, by the tongue of his interpreter, the greatness of the chagan,
by whose clemency the kingdoms of the South were permitted to exist,
whose victorious subjects had traversed the frozen rivers of Scythia,
and who now covered the banks of the Danube with innumerable tents.
The late emperor had cultivated, with annual and costly gifts, the
friendship of a grateful monarch, and the enemies of Rome had respected
the allies of the Avars. The same prudence would instruct the nephew of
Justinian to imitate the liberality of his uncle, and to purchase the
blessings of peace from an invincible people, who delighted and excelled
in the exercise of war. The reply of the emperor was delivered in the
same strain of haughty defiance, and he derived his confidence from
the God of the Christians, the ancient glory of Rome, and the recent
triumphs of Justinian. "The empire," said he, "abounds with men and
horses, and arms sufficient to defend our frontiers, and to chastise
the Barbarians. You offer aid, you threaten hostilities: we despise your
enmity and your aid. The conquerors of the Avars solicit our alliance;
shall we dread their fugitives and exiles? The bounty of our uncle
was granted to your misery, to your humble prayers. From us you shall
receive a more important obligation, the knowledge of your own weakness.
Retire from our presence; the lives of ambassadors are safe; and, if
you return to implore our pardon, perhaps you will taste of our
benevolence." On the report of his ambassadors, the chagan was awed
by the apparent firmness of a Roman emperor of whose character and
resources he was ignorant. Instead of executing his threats against
the Eastern empire, he marched into the poor and savage countries of
Germany, which were subject to the dominion of the Franks. After two
doubtful battles, he consented to retire, and the Austrasian king
relieve the distress of his camp with an immediate supply of corn and
cattle. Such repeated disappointments had chilled the spirit of the
Avars, and their power would have dissolved away in the Sarmatian
desert, if the alliance of Alboin, king of the Lombards, had not given
a new object to their arms, and a lasting settlement to their wearied
fortunes.
While Alboin served under his father's standard, he encountered in
battle, and transpierced with his lance, the rival prince of the GepidÊ.
The Lombards, who applauded such early prowess, requested his father,
with unanimous acclamations, that the heroic youth, who had shared the
dangers of the field, might be admitted to the feast of victory. "You
are not unmindful," replied the inflexible Audoin, "of the wise customs
of our ancestors. Whatever may be his merit, a prince is incapable of
sitting at table with his father till he has received his arms from a
foreign and royal hand." Alboin bowed with reverence to the institutions
of his country, selected forty companions, and boldly visited the court
of Turisund, king of the GepidÊ, who embraced and entertained, according
to the laws of hospitality, the murderer of his son. At the banquet,
whilst Alboin occupied the seat of the youth whom he had slain, a tender
remembrance arose in the mind of Turisund. "How dear is that place! how
hateful is that person!" were the words that escaped, with a sigh, from
the indignant father. His grief exasperated the national resentment of
the GepidÊ; and Cunimund, his surviving son, was provoked by wine, or
fraternal affection, to the desire of vengeance. "The Lombards," said
the rude Barbarian, "resemble, in figure and in smell, the mares of our
Sarmatian plains." And this insult was a coarse allusion to the white
bands which enveloped their legs. "Add another resemblance," replied
an audacious Lombard; "you have felt how strongly they kick. Visit
the plain of Asfield, and seek for the bones of thy brother: they are
mingled with those of the vilest animals." The GepidÊ, a nation of
warriors, started from their seats, and the fearless Alboin, with his
forty companions, laid their hands on their swords. The tumult was
appeased by the venerable interposition of Turisund. He saved his
own honor, and the life of his guest; and, after the solemn rites of
investiture, dismissed the stranger in the bloody arms of his son; the
gift of a weeping parent. Alboin returned in triumph; and the Lombards,
who celebrated his matchless intrepidity, were compelled to praise the
virtues of an enemy. In this extraordinary visit he had probably seen
the daughter of Cunimund, who soon after ascended the throne of the
GepidÊ. Her name was Rosamond, an appellation expressive of female
beauty, and which our own history or romance has consecrated to amorous
tales. The king of the Lombards (the father of Alboin no longer lived)
was contracted to the granddaughter of Clovis; but the restraints
of faith and policy soon yielded to the hope of possessing the fair
Rosamond, and of insulting her family and nation. The arts of persuasion
were tried without success; and the impatient lover, by force and
stratagem, obtained the object of his desires. War was the consequence
which he foresaw and solicited; but the Lombards could not long
withstand the furious assault of the GepidÊ, who were sustained by a
Roman army. And, as the offer of marriage was rejected with contempt,
Alboin was compelled to relinquish his prey, and to partake of the
disgrace which he had inflicted on the house of Cunimund.
When a public quarrel is envenomed by private injuries, a blow that is
not mortal or decisive can be productive only of a short truce,
which allows the unsuccessful combatant to sharpen his arms for a
new encounter. The strength of Alboin had been found unequal to the
gratification of his love, ambition, and revenge: he condescended to
implore the formidable aid of the chagan; and the arguments that he
employed are expressive of the art and policy of the Barbarians. In
the attack of the GepidÊ, he had been prompted by the just desire of
extirpating a people whom their alliance with the Roman empire had
rendered the common enemies of the nations, and the personal adversaries
of the chagan. If the forces of the Avars and the Lombards should
unite in this glorious quarrel, the victory was secure, and the reward
inestimable: the Danube, the Hebrus, Italy, and Constantinople, would
be exposed, without a barrier, to their invincible arms. But, if they
hesitated or delayed to prevent the malice of the Romans, the same
spirit which had insulted would pursue the Avars to the extremity of the
earth. These specious reasons were heard by the chagan with coldness and
disdain: he detained the Lombard ambassadors in his camp, protracted the
negotiation, and by turns alleged his want of inclination, or his
want of ability, to undertake this important enterprise. At length he
signified the ultimate price of his alliance, that the Lombards should
immediately present him with a tithe of their cattle; that the spoils
and captives should be equally divided; but that the lands of the GepidÊ
should become the sole patrimony of the Avars. Such hard conditions
were eagerly accepted by the passions of Alboin; and, as the Romans
were dissatisfied with the ingratitude and perfidy of the GepidÊ, Justin
abandoned that incorrigible people to their fate, and remained the
tranquil spectator of this unequal conflict. The despair of Cunimund
was active and dangerous. He was informed that the Avars had entered
his confines; but, on the strong assurance that, after the defeat of
the Lombards, these foreign invaders would easily be repelled, he rushed
forwards to encounter the implacable enemy of his name and family. But
the courage of the GepidÊ could secure them no more than an honorable
death. The bravest of the nation fell in the field of battle; the king
of the Lombards contemplated with delight the head of Cunimund; and his
skull was fashioned into a cup to satiate the hatred of the conqueror,
or, perhaps, to comply with the savage custom of his country. After
this victory, no further obstacle could impede the progress of the
confederates, and they faithfully executed the terms of their agreement.
The fair countries of Walachia, Moldavia, Transylvania, and the other
parts of Hungary beyond the Danube, were occupied, without resistance,
by a new colony of Scythians; and the Dacian empire of the chagans
subsisted with splendor above two hundred and thirty years. The nation
of the GepidÊ was dissolved; but, in the distribution of the captives,
the slaves of the Avars were less fortunate than the companions of the
Lombards, whose generosity adopted a valiant foe, and whose freedom was
incompatible with cool and deliberate tyranny. One moiety of the spoil
introduced into the camp of Alboin more wealth than a Barbarian could
readily compute. The fair Rosamond was persuaded, or compelled, to
acknowledge the rights of her victorious lover; and the daughter of
Cunimund appeared to forgive those crimes which might be imputed to her
own irresistible charms.