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

Justinian.—Part IV.

About two years after the last victory of Belisarius, the emperor

returned from a Thracian journey of health, or business, or

devotion. Justinian was afflicted by a pain in his head; and his

private entry countenanced the rumor of his death. Before the

third hour of the day, the bakers’ shops were plundered of their

bread, the houses were shut, and every citizen, with hope or

terror, prepared for the impending tumult. The senators

themselves, fearful and suspicious, were convened at the ninth

hour; and the præfect 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, 6811 “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

65 (return) [ 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.)]

66 (return) [ 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.]

67 (return) [ Alemannus, (p. quotes an old Byzantian Ms., which

has been printed in the Imperium Orientale of Banduri.)]

68 (return) [ 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.]

6811 (return) [ 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.]

69 (return) [ 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.]

70 (return) [ 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

71 (return) [ 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.]

72 (return) [ 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.)]

73 (return) [ 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 8111, 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.

74 (return) [ 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.]

75 (return) [ 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.]

76 (return) [ Astronomers may study Newton and Halley. I draw my

humble science from the article Comete, in the French

Encyclopedie, by M. d’Alembert.]

77 (return) [ 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.]

78 (return) [ 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.]

79 (return) [ 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 )]

80 (return) [ 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.]

81 (return) [ 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?]

8111 (return) [ 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.

82 (return) [ 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.)]

83 (return) [ 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]

84 (return) [ 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.)]

85 (return) [ 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.]

86 (return) [ 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.

87 (return) [ I have read with pleasure Mead’s short, but

elegant, treatise concerning Pestilential Disorders, the viiith

edition, London, 1722.]

88 (return) [ 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.)]

89 (return) [ 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.]

90 (return) [ 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.]

91 (return) [ 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.]

92 (return) [ 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

93 (return) [ 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.)]

94 (return) [ The strong assertions of Procopius are overthrown

by the subsequent experience of Evagrius.]

95 (return) [ After some figures of rhetoric, the sands of the

sea, &c., Procopius (Anecdot. c. 18) attempts a more definite

account; that it had been exterminated under the reign of the

Imperial demon. The expression is obscure in grammar and

arithmetic and a literal interpretation would produce several

millions of millions Alemannus (p. 80) and Cousin (tom. iii. p.

178) translate this passage, “two hundred millions:” but I am

ignorant of their motives. The remaining myriad of myriads, would

furnish one hundred millions, a number not wholly inadmissible.]

Chapter XLIV: Idea Of The Roman Jurisprudence.—Part I.

Idea Of The Roman Jurisprudence.—The Laws Of The Kings—The Twelve Of

The Decemvirs.—The Laws Of The People.—The Decrees Of The Senate.—The

Edicts Of The Magistrates And Emperors—Authority Of The

Civilians.—Code, Pandects, Novels, And Institutes Of Justinian:—I.

Rights Of Persons.—II. Rights Of Things.—III. Private Injuries And

Actions.—IV. Crimes And Punishments.

Note: In the notes to this important chapter, which is received

as the text-book on Civil Law in some of the foreign

universities, I have consulted,

I. the newly-discovered Institutes of Gaius, (Gaii Institutiones,

ed. Goeschen, Berlin, 1824,) with some other fragments of the

Roman law, (Codicis Theodosiani Fragmenta inedita, ab Amadeo

Peyron. Turin, 1824.)

II. The History of the Roman Law, by Professor Hugo, in the

French translation of M. Jourdan. Paris, 1825.

III. Savigny, Geschichte des Romischen Rechts im Mittelalter, 6

bande, Heidelberg, 1815.

IV. Walther, Romische Rechts-Geschichte, Bonn. 1834. But I am

particularly indebted to an edition of the French translation of

this chapter, with additional notes, by one of the most learned

civilians of Europe, Professor Warnkonig, published at Liege,

1821. I have inserted almost the whole of these notes, which are

distinguished by the letter W.—M. The vain titles of the

victories of Justinian are crumbled into dust; but the name of

the legislator is inscribed on a fair and everlasting monument.

Under his reign, and by his care, the civil jurisprudence was

digested in the immortal works of the Code, the Pandects, and the

Institutes: 1 the public reason of the Romans has been silently

or studiously transfused into the domestic institutions of

Europe, 2, and the laws of Justinian still command the respect or

obedience of independent nations. Wise or fortunate is the prince

who connects his own reputation with the honor or interest of a

perpetual order of men. The defence of their founder is the first

cause, which in every age has exercised the zeal and industry of

the civilians. They piously commemorate his virtues; dissemble or

deny his failings; and fiercely chastise the guilt or folly of

the rebels, who presume to sully the majesty of the purple. The

idolatry of love has provoked, as it usually happens, the rancor

of opposition; the character of Justinian has been exposed to the

blind vehemence of flattery and invective; and the injustice of a

sect (the Anti-Tribonians,) has refused all praise and merit to

the prince, his ministers, and his laws. 3 Attached to no party,

interested only for the truth and candor of history, and directed

by the most temperate and skilful guides, 4 I enter with just

diffidence on the subject of civil law, which has exhausted so

many learned lives, and clothed the walls of such spacious

libraries. In a single, if possible in a short, chapter, I shall

trace the Roman jurisprudence from Romulus to Justinian, 5

appreciate the labors of that emperor, and pause to contemplate

the principles of a science so important to the peace and

happiness of society. The laws of a nation form the most

instructive portion of its history; and although I have devoted

myself to write the annals of a declining monarchy, I shall

embrace the occasion to breathe the pure and invigorating air of

the republic.

1 (return) [ 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 Gibbon has been

followed by M Hugo and other civilians.—M]

2 (return) [ 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.]

3 (return) [ 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.]

4 (return) [ 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]

5 (return) [ 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

6 (return) [ 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.]

7 (return) [ 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]

8 (return) [ 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.]

9 (return) [ 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.]

10 (return) [ 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. 1211 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.

11 (return) [ 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.]

12 (return) [ 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.]

1211 (return) [ 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.]

13 (return) [ 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.]

14 (return) [ 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.]

15 (return) [ 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.]

16 (return) [ 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.]

17 (return) [ 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.]

18 (return) [ 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.]

19 (return) [ The tenth table, de modo sepulturae, was borrowed

from Solon, (Cicero de Legibus, ii. 23—26:) the furtem per lancem

et licium conceptum, is derived by Heineccius from the manners of

Athens, (Antiquitat. Rom. tom. ii. p. 167—175.) The right of

killing a nocturnal thief was declared by Moses, Solon, and the

Decemvirs, (Exodus xxii. 3. Demosthenes contra Timocratem, tom.

i. p. 736, edit. Reiske. Macrob. Saturnalia, l. i. c. 4. Collatio

Legum Mosaicarum et Romanatum, tit, vii. No. i. p. 218, edit.

Cannegieter.) *Note: Are not the same points of similarity

discovered in the legislation of all actions in the infancy of

their civilization?—W.]

Chapter XLIV: Idea Of The Roman Jurisprudence.—Part II.

Whatever might be the origin or the merit of the twelve tables,

20 they obtained among the Romans that blind and partial

reverence which the lawyers of every country delight to bestow on

their municipal institutions. The study is recommended by Cicero

21 as equally pleasant and instructive. “They amuse the mind by

the remembrance of old words and the portrait of ancient manners;

they inculcate the soundest principles of government and morals;

and I am not afraid to affirm, that the brief composition of the

Decemvirs surpasses in genuine value the libraries of Grecian

philosophy. How admirable,” says Tully, with honest or affected

prejudice, “is the wisdom of our ancestors! We alone are the

masters of civil prudence, and our superiority is the more

conspicuous, if we deign to cast our eyes on the rude and almost

ridiculous jurisprudence of Draco, of Solon, and of Lycurgus.”

The twelve tables were committed to the memory of the young and

the meditation of the old; they were transcribed and illustrated

with learned diligence; they had escaped the flames of the Gauls,

they subsisted in the age of Justinian, and their subsequent loss

has been imperfectly restored by the labors of modern critics. 22

But although these venerable monuments were considered as the

rule of right and the fountain of justice, 23 they were

overwhelmed by the weight and variety of new laws, which, at the

end of five centuries, became a grievance more intolerable than

the vices of the city. 24 Three thousand brass plates, the acts

of the senate of the people, were deposited in the Capitol: 25

and some of the acts, as the Julian law against extortion,

surpassed the number of a hundred chapters. 26 The Decemvirs had

neglected to import the sanction of Zaleucus, which so long

maintained the integrity of his republic. A Locrian, who proposed

any new law, stood forth in the assembly of the people with a

cord round his neck, and if the law was rejected, the innovator

was instantly strangled.

20 (return) [ 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.)]

21 (return) [ Listen to Cicero (de Legibus, ii. 23) and his

representative Crassus, (de Oratore, i. 43, 44.)]

22 (return) [ 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.]

23 (return) [ 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.]

24 (return) [ 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.]

25 (return) [ Suetonius in Vespasiano, c. 8.]

26 (return) [ 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

27 (return) [ 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.]

28 (return) [ 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.]

29 (return) [ Cicero (de Legibus, iii. 16, 17, 18) debates this

constitutional question, and assigns to his brother Quintus the

most unpopular side.]

30 (return) [ 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.)]

31 (return) [ 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.]

32 (return) [ 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 3211 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. 3311 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

3211 (return) [ There is a curious passage from Aurelius, a

writer on Law, on the Praetorian Præfect, quoted in Lydus de

Magistratibus, p. 32, edit. Hase. The Praetorian præfect 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]

33 (return) [ 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.]

3311 (return) [ 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.]

34 (return) [ 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.)]

35 (return) [ 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.]