XLIV. Idea Of The Roman Jurisprudence.—Part VI…

XLIV. Idea Of The Roman Jurisprudence.—Part VI

The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the Institutes and Pandects, 136 is of a very simple and uniform nature. The person and property of an orphan must always be trusted to the custody of some discreet friend. If the deceased father had not signified his choice, the agnats, or paternal kindred of the nearest degree, were compelled to act as the natural guardians: the Athenians were apprehensive of exposing the infant to the power of those most interested in his death; but an axiom of Roman jurisprudence has pronounced, that the charge of tutelage should constantly attend the emolument of succession. If the choice of the father, and the line of consanguinity, afforded no efficient guardian, the failure was supplied by the nomination of the praetor of the city, or the president of the province. But the person whom they named to this public office might be legally excused by insanity or blindness, by ignorance or inability, by previous enmity or adverse interest, by the number of children or guardianships with which he was already burdened, and by the immunities which were granted to the useful labors of magistrates, lawyers, physicians, and professors. Till the infant could speak, and think, he was represented by the tutor, whose authority was finally determined by the age of puberty. Without his consent, no act of the pupil could bind himself to his own prejudice, though it might oblige others for his personal benefit. It is needless to observe, that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. The age of puberty had been rashly fixed by the civilians at fourteen; 1361 but as the faculties of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of a Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the praetor, to save a family from the blind havoc of a prodigal or madman; and the minor was compelled, by the laws, to solicit the same protection, to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians; a sex created to please and obey was never supposed to have attained the age of reason and experience. Such, at least, was the stern and haughty spirit of the ancient law, which had been insensibly mollified before the time of Justinian.

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

1361 (return) [ Gibbon accuses the civilians of having “rashly fixed the age of puberty at twelve or fourteen years.” It was not so; before Justinian, no law existed on this subject. Ulpian relates the discussions which took place on this point among the different sects of civilians. See the Institutes, l. i. tit. 22, and the fragments of Ulpian. Nor was the curatorship obligatory for all minors.—W.]

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

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

138 (return) [ The heredium of the first Romans is defined by Varro, (de Re Rustica, l. i. c. ii. p. 141, c. x. p. 160, 161, edit. Gesner,) and clouded by Pliny’s declamation, (Hist. Natur. xviii. 2.) A just and learned comment is given in the Administration des Terres chez les Romains, (p. 12—66.) Note: On the duo jugera, compare Niebuhr, vol. i. p. 337.—M.]

139 (return) [ The res mancipi is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. p. 618, 619) and Bynkershoek, (Opp tom. i. p. 306—315.) The definition is somewhat arbitrary; and as none except myself have assigned a reason, I am diffident of my own.]

140 (return) [ From this short prescription, Hume (Essays, vol. i. p. 423) infers that there could not then be more order and settlement in Italy than now amongst the Tartars. By the civilian of his adversary Wallace, he is reproached, and not without reason, for overlooking the conditions, (Institut. l. ii. tit. vi.) * Note: Gibbon acknowledges, in the former note, the obscurity of his views with regard to the res mancipi. The interpreters, who preceded him, are not agreed on this point, one of the most difficult in the ancient Roman law. The conclusions of Hume, of which the author here speaks, are grounded on false assumptions. Gibbon had conceived very inaccurate notions of Property among the Romans, and those of many authors in the present day are not less erroneous. We think it right, in this place, to develop the system of property among the Romans, as the result of the study of the extant original authorities on the ancient law, and as it has been demonstrated, recognized, and adopted by the most learned expositors of the Roman law. Besides the authorities formerly known, such as the Fragments of Ulpian, t. xix. and t. i. 16. Theoph. Paraph. i. 5, 4, may be consulted the Institutes of Gaius, i. 54, and ii. 40, et seq. The Roman laws protected all property acquired in a lawful manner. They imposed on those who had invaded it, the obligation of making restitution and reparation of all damage caused by that invasion; they punished it moreover, in many cases, by a pecuniary fine. But they did not always grant a recovery against the third person, who had become bona fide possessed of the property. He who had obtained possession of a thing belonging to another, knowing nothing of the prior rights of that person, maintained the possession. The law had expressly determined those cases, in which it permitted property to be reclaimed from an innocent possessor. In these cases possession had the characters of absolute proprietorship, called mancipium, jus Quiritium. To possess this right, it was not sufficient to have entered into possession of the thing in any manner; the acquisition was bound to have that character of publicity, which was given by the observation of solemn forms, prescribed by the laws, or the uninterrupted exercise of proprietorship during a certain time: the Roman citizen alone could acquire this proprietorship. Every other kind of possession, which might be named imperfect proprietorship, was called “in bonis habere.” It was not till after the time of Cicero that the general name of Dominium was given to all proprietorship. It was then the publicity which constituted the distinctive character of absolute dominion. This publicity was grounded on the mode of acquisition, which the moderns have called Civil, (Modi adquirendi Civiles.) These modes of acquisition were, 1. Mancipium or mancipatio, which was nothing but the solemn delivering over of the thing in the presence of a determinate number of witnesses and a public officer; it was from this probably that proprietorship was named, 2. In jure cessio, which was a solemn delivering over before the praetor. 3. Adjudicatio, made by a judge, in a case of partition. 4. Lex, which comprehended modes of acquiring in particular cases determined by law; probably the law of the xii. tables; for instance, the sub corona emptio and the legatum. 5. Usna, called afterwards usacapio, and by the moderns prescription. This was only a year for movables; two years for things not movable. Its primary object was altogether different from that of prescription in the present day. It was originally introduced in order to transform the simple possession of a thing (in bonis habere) into Roman proprietorship. The public and uninterrupted possession of a thing, enjoyed for the space of one or two years, was sufficient to make known to the inhabitants of the city of Rome to whom the thing belonged. This last mode of acquisition completed the system of civil acquisitions. by legalizing. as it were, every other kind of acquisition which was not conferred, from the commencement, by the Jus Quiritium. V. Ulpian. Fragm. i. 16. Gaius, ii. 14. We believe, according to Gaius, 43, that this usucaption was extended to the case where a thing had been acquired from a person not the real proprietor; and that according to the time prescribed, it gave to the possessor the Roman proprietorship. But this does not appear to have been the original design of this Institution. Caeterum etiam earum rerum usucapio nobis competit, quae non a domino nobis tradita fuerint, si modo eas bona fide acceperimus Gaius, l ii. 43. As to things of smaller value, or those which it was difficult to distinguish from each other, the solemnities of which we speak were not requisite to obtain legal proprietorship. In this case simple delivery was sufficient. In proportion to the aggrandizement of the Republic, this latter principle became more important from the increase of the commerce and wealth of the state. It was necessary to know what were those things of which absolute property might be acquired by simple delivery, and what, on the contrary, those, the acquisition of which must be sanctioned by these solemnities. This question was necessarily to be decided by a general rule; and it is this rule which establishes the distinction between res mancipi and nec mancipi, a distinction about which the opinions of modern civilians differ so much that there are above ten conflicting systems on the subject. The system which accords best with a sound interpretation of the Roman laws, is that proposed by M. Trekel of Hamburg, and still further developed by M. Hugo, who has extracted it in the Magazine of Civil Law, vol. ii. p. 7. This is the system now almost universally adopted. Res mancipi (by contraction for mancipii) were things of which the absolute property (Jus Quiritium) might be acquired only by the solemnities mentioned above, at least by that of mancipation, which was, without doubt, the most easy and the most usual. Gaius, ii. 25. As for other things, the acquisition of which was not subject to these forms, in order to confer absolute right, they were called res nec mancipi. See Ulpian, Fragm. xix. 1. 3, 7. Ulpian and Varro enumerate the different kinds of res mancipi. Their enumerations do not quite agree; and various methods of reconciling them have been attempted. The authority of Ulpian, however, who wrote as a civilian, ought to have the greater weight on this subject. But why are these things alone res mancipi? This is one of the questions which have been most frequently agitated, and on which the opinions of civilians are most divided. M. Hugo has resolved it in the most natural and satisfactory manner. “All things which were easily known individually, which were of great value, with which the Romans were acquainted, and which they highly appreciated, were res mancipi. Of old mancipation or some other solemn form was required for the acquisition of these things, an account of their importance. Mancipation served to prove their acquisition, because they were easily distinguished one from the other.” On this great historical discussion consult the Magazine of Civil Law by M. Hugo, vol. ii. p. 37, 38; the dissertation of M. J. M. Zachariae, de Rebus Mancipi et nec Mancipi Conjecturae, p. 11. Lipsiae, 1807; the History of Civil Law by M. Hugo; and my Institutiones Juris Romani Privati p. 108, 110. As a general rule, it may be said that all things are res nec mancipi; the res mancipi are the exception to this principle. The praetors changed the system of property by allowing a person, who had a thing in bonis, the right to recover before the prescribed term of usucaption had conferred absolute proprietorship. (Pauliana in rem actio.) Justinian went still further, in times when there was no longer any distinction between a Roman citizen and a stranger. He granted the right of recovering all things which had been acquired, whether by what were called civil or natural modes of acquisition, Cod. l. vii. t. 25, 31. And he so altered the theory of Gaius in his Institutes, ii. 1, that no trace remains of the doctrine taught by that civilian.—W.]

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

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

The personal title of the first proprietor must be determined by his death: but the possession, without any appearance of change, is peaceably continued in his children, the associates of his toil, and the partners of his wealth. This natural inheritance has been protected by the legislators of every climate and age, and the father is encouraged to persevere in slow and distant improvements, by the tender hope, that a long posterity will enjoy the fruits of his labor. The principle of hereditary succession is universal; but the order has been variously established by convenience or caprice, by the spirit of national institutions, or by some partial example which was originally decided by fraud or violence. The jurisprudence of the Romans appear to have deviated from the inequality of nature much less than the Jewish, 143 the Athenian, 144 or the English institutions. 145 On the death of a citizen, all his descendants, unless they were already freed from his paternal power, were called to the inheritance of his possessions. The insolent prerogative of primogeniture was unknown; the two sexes were placed on a just level; all the sons and daughters were entitled to an equal portion of the patrimonial estate; and if any of the sons had been intercepted by a premature death, his person was represented, and his share was divided, by his surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The degrees of kindred 146 are numbered by the civilians, ascending from the last possessor to a common parent, and descending from the common parent to the next heir: my father stands in the first degree, my brother in the second, his children in the third, and the remainder of the series may be conceived by a fancy, or pictured in a genealogical table. In this computation, a distinction was made, essential to the laws and even the constitution of Rome; the agnats, or persons connected by a line of males, were called, as they stood in the nearest degree, to an equal partition; but a female was incapable of transmitting any legal claims; and the cognats of every rank, without excepting the dear relation of a mother and a son, were disinherited by the Twelve Tables, as strangers and aliens. Among the Romans agens or lineage was united by a common name and domestic rites; the various cognomens or surnames of Scipio, or Marcellus, distinguished from each other the subordinate branches or families of the Cornelian or Claudian race: the default of the agnats, of the same surname, was supplied by the larger denomination of gentiles; and the vigilance of the laws maintained, in the same name, the perpetual descent of religion and property. A similar principle dictated the Voconian law, 147 which abolished the right of female inheritance. As long as virgins were given or sold in marriage, the adoption of the wife extinguished the hopes of the daughter. But the equal succession of independent matrons supported their pride and luxury, and might transport into a foreign house the riches of their fathers.

While the maxims of Cato 148 were revered, they tended to perpetuate in each family a just and virtuous mediocrity: till female blandishments insensibly triumphed; and every salutary restraint was lost in the dissolute greatness of the republic. The rigor of the decemvirs was tempered by the equity of the praetors. Their edicts restored and emancipated posthumous children to the rights of nature; and upon the failure of the agnats, they preferred the blood of the cognats to the name of the gentiles whose title and character were insensibly covered with oblivion. The reciprocal inheritance of mothers and sons was established in the Tertullian and Orphitian decrees by the humanity of the senate. A new and more impartial order was introduced by the Novels of Justinian, who affected to revive the jurisprudence of the Twelve Tables. The lines of masculine and female kindred were confounded: the descending, ascending, and collateral series was accurately defined; and each degree, according to the proximity of blood and affection, succeeded to the vacant possessions of a Roman citizen. 149

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

144 (return) [ At Athens, the sons were equal; but the poor daughters were endowed at the discretion of their brothers. See the pleadings of Isaeus, (in the viith volume of the Greek Orators,) illustrated by the version and comment of Sir William Jones, a scholar, a lawyer, and a man of genius.]

145 (return) [ In England, the eldest son also inherits all the land; a law, says the orthodox Judge Blackstone, (Commentaries on the Laws of England, vol. ii. p. 215,) unjust only in the opinion of younger brothers. It may be of some political use in sharpening their industry.]

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

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

148 (return) [ Legem Voconiam (Ernesti, Clavis Ciceroniana) magna voce bonis lateribus (at lxv. years of age) suasissem, says old Cato, (de Senectute, c. 5,) Aulus Gellius (vii. 13, xvii. 6) has saved some passages.]

149 (return) [ See the law of succession in the Institutes of Caius, (l. ii. tit. viii. p. 130—144,) and Justinian, (l. iii. tit. i.—vi., with the Greek version of Theophilus, p. 515-575, 588—600,) the Pandects, (l. xxxviii. tit. vi.—xvii.,) the Code, (l. vi. tit. lv.—lx.,) and the Novels, (cxviii.)]

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

150 (return) [ That succession was the rule, testament the exception, is proved by Taylor, (Elements of Civil Law, p. 519-527,) a learned, rambling, spirited writer. In the iid and iiid books, the method of the Institutes is doubtless preposterous; and the Chancellor Daguesseau (Oeuvres, tom. i. p. 275) wishes his countryman Domat in the place of Tribonian. Yet covenants before successions is not surely the natural order of civil laws.]

151 (return) [ Prior examples of testaments are perhaps fabulous. At Athens a childless father only could make a will, (Plutarch, in Solone, tom. i. p. 164. See Isaeus and Jones.)]

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

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

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

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

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

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

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

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

XLIV. Idea Of The Roman Jurisprudence.—Part VII

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

159 (return) [ How much is the cool, rational evidence of Polybius (l. vi. p. 693, l. xxxi. p. 1459, 1460) superior to vague, indiscriminate applause—omnium maxime et praecipue fidem coluit, (A. Gellius, xx. l.)]

160 (return) [ The Jus Praetorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt, (Opp. tom. i. p. 483—564.) And I will here observe, that the universities of Holland and Brandenburg, in the beginning of the present century, appear to have studied the civil law on the most just and liberal principles. * Note: Simple agreements (pacta) formed as valid an obligation as a solemn contract. Only an action, or the right to a direct judicial prosecution, was not permitted in every case of compact. In all other respects, the judge was bound to maintain an agreement made by pactum. The stipulation was a form common to every kind of agreement, by which the right of action was given to this.—W.]

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

161 (return) [ The nice and various subject of contracts by consent is spread over four books (xvii.—xx.) of the Pandects, and is one of the parts best deserving of the attention of an English student. * Note: This is erroneously called “benefits.” Gibbon enumerates various kinds of contracts, of which some alone are properly called benefits.—W.]

162 (return) [ The covenants of rent are defined in the Pandects (l. xix.) and the Code, (l. iv. tit. lxv.) The quinquennium, or term of five years, appears to have been a custom rather than a law; but in France all leases of land were determined in nine years. This limitation was removed only in the year 1775, (Encyclopedie Methodique, tom. i. de la Jurisprudence, p. 668, 669;) and I am sorry to observe that it yet prevails in the beauteous and happy country where I am permitted to reside.]

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

164 (return) [ Primo xii. Tabulis sancitum est ne quis unciario foenore amplius exerceret, (Tacit. Annal. vi. 16.) Pour peu (says Montesquieu, Esprit des Loix, l. xxii. 22) qu’on soit verse dans l’histoire de Rome, on verra qu’une pareille loi ne devoit pas etre l’ouvrage des decemvirs. Was Tacitus ignorant—or stupid? But the wiser and more virtuous patricians might sacrifice their avarice to their ambition, and might attempt to check the odious practice by such interest as no lender would accept, and such penalties as no debtor would incur. * Note: The real nature of the foenus unciarium has been proved; it amounted in a year of twelve months to ten per cent. See, in the Magazine for Civil Law, by M. Hugo, vol. v. p. 180, 184, an article of M. Schrader, following up the conjectures of Niebuhr, Hist. Rom. tom. ii. p. 431.—W. Compare a very clear account of this question in the appendix to Mr. Travers Twiss’s Epitome of Niebuhr, vol. ii. p. 257.—M.]

165 (return) [ Justinian has not condescended to give usury a place in his Institutes; but the necessary rules and restrictions are inserted in the Pandects (l. xxii. tit. i. ii.) and the Code, (l. iv. tit. xxxii. xxxiii.)]

166 (return) [ The Fathers are unanimous, (Barbeyrac, Morale des Peres, p. 144. &c.:) Cyprian, Lactantius, Basil, Chrysostom, (see his frivolous arguments in Noodt, l. i. c. 7, p. 188,) Gregory of Nyssa, Ambrose, Jerom, Augustin, and a host of councils and casuists.]

167 (return) [ Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of foenus, the principal is supposed to generate the interest: a breed of barren metal, exclaims Shakespeare—and the stage is the echo of the public voice.]

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

168 (return) Sir William Jones has given an ingenious and rational Essay on the law of Bailment, (London, 1781, p. 127, in 8vo.) He is perhaps the only lawyer equally conversant with the year-books of Westminster, the Commentaries of Ulpian, the Attic pleadings of Isaeus, and the sentences of Arabian and Persian cadhis.]

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

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

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

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

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

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

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

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

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

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

8. The nocturnal mischief of damaging or destroying a neighbor’s corn. The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twenty-five pounds of copper.

9. Magical incantations; which had power, in the opinion of the Latin shepherds, to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deep-rooted plantations.

The cruelty of the twelve tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism. 178 1781 After the judicial proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow-citizen. In this private prison, twelve ounces of rice were his daily food; he might be bound with a chain of fifteen pounds weight; and his misery was thrice exposed in the market place, to solicit the compassion of his friends and countrymen. At the expiration of sixty days, the debt was discharged by the loss of liberty or life; the insolvent debtor was either put to death, or sold in foreign slavery beyond the Tyber: but, if several creditors were alike obstinate and unrelenting, they might legally dismember his body, and satiate their revenge by this horrid partition. The advocates for this savage law have insisted, that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge; but experience would dissipate this salutary terror, by proving that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the decemvirs was abolished by the humanity of accusers, witnesses, and judges; and impunity became the consequence of immoderate rigor. The Porcian and Valerian laws prohibited the magistrates from inflicting on a free citizen any capital, or even corporal, punishment; and the obsolete statutes of blood were artfully, and perhaps truly, ascribed to the spirit, not of patrician, but of regal, tyranny.

171 (return) [ The narrative of Livy (i. 28) is weighty and solemn. At tu, Albane, maneres, is a harsh reflection, unworthy of Virgil’s humanity, (Aeneid, viii. 643.) Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Aencas, (tom. iii. p. 229.)]

172 (return) [ The age of Draco (Olympiad xxxix. l) is fixed by Sir John Marsham (Canon Chronicus, p. 593—596) and Corsini, (Fasti Attici, tom. iii. p. 62.) For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c.]

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

174 (return) [ Livy mentions two remarkable and flagitious aeras, of 3000 persons accused, and of 190 noble matrons convicted, of the crime of poisoning, (xl. 43, viii. 18.) Mr. Hume discriminates the ages of private and public virtue, (Essays, vol. i. p. 22, 23.) I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation.]

175 (return) [ The xii. tables and Cicero (pro Roscio Amerino, c. 25, 26) are content with the sack; Seneca (Excerpt. Controvers. v 4) adorns it with serpents; Juvenal pities the guiltless monkey (innoxia simia—156.) Adrian (apud Dositheum Magistrum, l. iii. c. p. 874—876, with Schulting’s Note,) Modestinus, (Pandect. xlviii. tit. ix. leg. 9,) Constantine, (Cod. l. ix. tit. xvii.,) and Justinian, (Institut. l. iv. tit. xviii.,) enumerate all the companions of the parricide. But this fanciful execution was simplified in practice. Hodie tamen viv exuruntur vel ad bestias dantur, (Paul. Sentent. Recept. l. v. tit. xxiv p. 512, edit. Schulting.)]

176 (return) [ The first parricide at Rome was L. Ostius, after the second Punic war, (Plutarch, in Romulo, tom. i. p. 54.) During the Cimbric, P. Malleolus was guilty of the first matricide, (Liv. Epitom. l. lxviii.)]

177 (return) [ Horace talks of the formidine fustis, (l. ii. epist. ii. 154,) but Cicero (de Republica, l. iv. apud Augustin. de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393, edit. Olivet) affirms that the decemvirs made libels a capital offence: cum perpaucas res capite sanxisent—perpaucus!]

178 (return) [ Bynkershoek (Observat. Juris Rom. l. i. c. 1, in Opp. tom. i. p. 9, 10, 11) labors to prove that the creditors divided not the body, but the price, of the insolvent debtor. Yet his interpretation is one perpetual harsh metaphor; nor can he surmount the Roman authorities of Quintilian, Caecilius, Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi.]

1781 (return) [ Hugo (Histoire du Droit Romain, tom. i. p. 234) concurs with Gibbon See Niebuhr, vol. ii. p. 313.—M.]

In the absence of penal laws, and the insufficiency of civil actions, the peace and justice of the city were imperfectly maintained by the private jurisdiction of the citizens. The malefactors who replenish our jails are the outcasts of society, and the crimes for which they suffer may be commonly ascribed to ignorance, poverty, and brutal appetite. For the perpetration of similar enormities, a vile plebeian might claim and abuse the sacred character of a member of the republic: but, on the proof or suspicion of guilt, the slave, or the stranger, was nailed to a cross; and this strict and summary justice might be exercised without restraint over the greatest part of the populace of Rome.

Each family contained a domestic tribunal, which was not confined, like that of the praetor, to the cognizance of external actions: virtuous principles and habits were inculcated by the discipline of education; and the Roman father was accountable to the state for the manners of his children, since he disposed, without appeal, of their life, their liberty, and their inheritance. In some pressing emergencies, the citizen was authorized to avenge his private or public wrongs. The consent of the Jewish, the Athenian, and the Roman laws approved the slaughter of the nocturnal thief; though in open daylight a robber could not be slain without some previous evidence of danger and complaint. Whoever surprised an adulterer in his nuptial bed might freely exercise his revenge; 179 the most bloody and wanton outrage was excused by the provocation; 180 nor was it before the reign of Augustus that the husband was reduced to weigh the rank of the offender, or that the parent was condemned to sacrifice his daughter with her guilty seducer. After the expulsion of the kings, the ambitious Roman, who should dare to assume their title or imitate their tyranny, was devoted to the infernal gods: each of his fellow-citizens was armed with the sword of justice; and the act of Brutus, however repugnant to gratitude or prudence, had been already sanctified by the judgment of his country. 181 The barbarous practice of wearing arms in the midst of peace, 182 and the bloody maxims of honor, were unknown to the Romans; and, during the two purest ages, from the establishment of equal freedom to the end of the Punic wars, the city was never disturbed by sedition, and rarely polluted with atrocious crimes. The failure of penal laws was more sensibly felt, when every vice was inflamed by faction at home and dominion abroad. In the time of Cicero, each private citizen enjoyed the privilege of anarchy; each minister of the republic was exalted to the temptations of regal power, and their virtues are entitled to the warmest praise, as the spontaneous fruits of nature or philosophy. After a triennial indulgence of lust, rapine, and cruelty, Verres, the tyrant of Sicily, could only be sued for the pecuniary restitution of three hundred thousand pounds sterling; and such was the temper of the laws, the judges, and perhaps the accuser himself, 183 that, on refunding a thirteenth part of his plunder, Verres could retire to an easy and luxurious exile. 184

179 (return) [ The first speech of Lysias (Reiske, Orator. Graec. tom. v. p. 2—48) is in defence of a husband who had killed the adulterer. The rights of husbands and fathers at Rome and Athens are discussed with much learning by Dr. Taylor, (Lectiones Lysiacae, c. xi. in Reiske, tom. vi. p. 301—308.)]

180 (return) [ See Casaubon ad Athenaeum, l. i. c. 5, p. 19. Percurrent raphanique mugilesque, (Catull. p. 41, 42, edit. Vossian.) Hunc mugilis intrat, (Juvenal. Satir. x. 317.) Hunc perminxere calones, (Horat l. i. Satir. ii. 44.) Familiae stuprandum dedit.. fraudi non fuit, (Val. Maxim. l. vi. c. l, No. 13.)]

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

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

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

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

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

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

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

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

188 (return) [ The abactores or abigeatores, who drove one horse, or two mares or oxen, or five hogs, or ten goats, were subject to capital punishment, (Paul, Sentent. Recept. l. iv. tit. xviii. p. 497, 498.) Hadrian, (ad Concil. Baeticae,) most severe where the offence was most frequent, condemns the criminals, ad gladium, ludi damnationem, (Ulpian, de Officio Proconsulis, l. viii. in Collatione Legum Mosaic. et Rom. tit. xi p. 235.)]

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

189 (return) [ Till the publication of the Julius Paulus of Schulting, (l. ii. tit. xxvi. p. 317—323,) it was affirmed and believed that the Julian laws punished adultery with death; and the mistake arose from the fraud or error of Tribonian. Yet Lipsius had suspected the truth from the narratives of Tacitus, (Annal. ii. 50, iii. 24, iv. 42,) and even from the practice of Augustus, who distinguished the treasonable frailties of his female kindred.]

190 (return) [ In cases of adultery, Severus confined to the husband the right of public accusation, (Cod. Justinian, l. ix. tit. ix. leg. 1.) Nor is this privilege unjust—so different are the effects of male or female infidelity.]

191 (return) [ Timon (l. i.) and Theopompus (l. xliii. apud Athenaeum, l. xii. p. 517) describe the luxury and lust of the Etruscans. About the same period (A. U. C. 445) the Roman youth studied in Etruria, (liv. ix. 36.)]

192 (return) [ The Persians had been corrupted in the same school, (Herodot. l. i. c. 135.) A curious dissertation might be formed on the introduction of paederasty after the time of Homer, its progress among the Greeks of Asia and Europe, the vehemence of their passions, and the thin device of virtue and friendship which amused the philosophers of Athens. But scelera ostendi oportet dum puniuntur, abscondi flagitia.]

193 (return) [ The name, the date, and the provisions of this law are equally doubtful, (Gravina, Opp. p. 432, 433. Heineccius, Hist. Jur. Rom. No. 108. Ernesti, Clav. Ciceron. in Indice Legum.) But I will observe that the nefanda Venus of the honest German is styled aversa by the more polite Italian.]

194 (return) [ See the oration of Aeschines against the catamite Timarchus, (in Reiske, Orator. Graec. tom. iii. p. 21—184.)]

195 (return) [ A crowd of disgraceful passages will force themselves on the memory of the classic reader: I will only remind him of the cool declaration of Ovid:— Odi concubitus qui non utrumque resolvant. Hoc est quod puerum tangar amore minus.]

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

XLIV. Idea Of The Roman Jurisprudence.—Part VIII

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

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

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

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

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

The free citizens of Athens and Rome enjoyed, in all criminal cases, the invaluable privilege of being tried by their country. 201 1. The administration of justice is the most ancient office of a prince: it was exercised by the Roman kings, and abused by Tarquin; who alone, without law or council, pronounced his arbitrary judgments. The first consuls succeeded to this regal prerogative; but the sacred right of appeal soon abolished the jurisdiction of the magistrates, and all public causes were decided by the supreme tribunal of the people. But a wild democracy, superior to the forms, too often disdains the essential principles, of justice: the pride of despotism was envenomed by plebeian envy, and the heroes of Athens might sometimes applaud the happiness of the Persian, whose fate depended on the caprice of a single tyrant. Some salutary restraints, imposed by the people or their own passions, were at once the cause and effect of the gravity and temperance of the Romans. The right of accusation was confined to the magistrates.

A vote of the thirty five tribes could inflict a fine; but the cognizance of all capital crimes was reserved by a fundamental law to the assembly of the centuries, in which the weight of influence and property was sure to preponderate. Repeated proclamations and adjournments were interposed, to allow time for prejudice and resentment to subside: the whole proceeding might be annulled by a seasonable omen, or the opposition of a tribune; and such popular trials were commonly less formidable to innocence than they were favorable to guilt. But this union of the judicial and legislative powers left it doubtful whether the accused party was pardoned or acquitted; and, in the defence of an illustrious client, the orators of Rome and Athens address their arguments to the policy and benevolence, as well as to the justice, of their sovereign. 2. The task of convening the citizens for the trial of each offender became more difficult, as the citizens and the offenders continually multiplied; and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates, or to extraordinary inquisitors. In the first ages these questions were rare and occasional. In the beginning of the seventh century of Rome they were made perpetual: four praetors were annually empowered to sit in judgment on the state offences of treason, extortion, peculation, and bribery; and Sylla added new praetors and new questions for those crimes which more directly injure the safety of individuals. By these inquisitors the trial was prepared and directed; but they could only pronounce the sentence of the majority of judges, who with some truth, and more prejudice, have been compared to the English juries. 202 To discharge this important, though burdensome office, an annual list of ancient and respectable citizens was formed by the praetor. After many constitutional struggles, they were chosen in equal numbers from the senate, the equestrian order, and the people; four hundred and fifty were appointed for single questions; and the various rolls or decuries of judges must have contained the names of some thousand Romans, who represented the judicial authority of the state. In each particular cause, a sufficient number was drawn from the urn; their integrity was guarded by an oath; the mode of ballot secured their independence; the suspicion of partiality was removed by the mutual challenges of the accuser and defendant; and the judges of Milo, by the retrenchment of fifteen on each side, were reduced to fifty-one voices or tablets, of acquittal, of condemnation, or of favorable doubt. 203 3. In his civil jurisdiction, the praetor of the city was truly a judge, and almost a legislator; but, as soon as he had prescribed the action of law, he often referred to a delegate the determination of the fact. With the increase of legal proceedings, the tribunal of the centumvirs, in which he presided, acquired more weight and reputation. But whether he acted alone, or with the advice of his council, the most absolute powers might be trusted to a magistrate who was annually chosen by the votes of the people. The rules and precautions of freedom have required some explanation; the order of despotism is simple and inanimate. Before the age of Justinian, or perhaps of Diocletian, the decuries of Roman judges had sunk to an empty title: the humble advice of the assessors might be accepted or despised; and in each tribunal the civil and criminal jurisdiction was administered by a single magistrate, who was raised and disgraced by the will of the emperor.

201 (return) [The important subject of the public questions and judgments at Rome, is explained with much learning, and in a classic style, by Charles Sigonius, (l. iii. de Judiciis, in Opp. tom. iii. p. 679—864;) and a good abridgment may be found in the Republique Romaine of Beaufort, (tom. ii. l. v. p. 1—121.) Those who wish for more abstruse law may study Noodt, (de Jurisdictione et Imperio Libri duo, tom. i. p. 93—134,) Heineccius, (ad Pandect. l. i. et ii. ad Institut. l. iv. tit. xvii Element. ad Antiquitat.) and Gravina (Opp. 230—251.)]

202 (return) [ The office, both at Rome and in England, must be considered as an occasional duty, and not a magistracy, or profession. But the obligation of a unanimous verdict is peculiar to our laws, which condemn the jurymen to undergo the torture from whence they have exempted the criminal.]

203 (return) [ We are indebted for this interesting fact to a fragment of Asconius Pedianus, who flourished under the reign of Tiberius. The loss of his Commentaries on the Orations of Cicero has deprived us of a valuable fund of historical and legal knowledge.]

A Roman accused of any capital crime might prevent the sentence of the law by voluntary exile, or death. Till his guilt had been legally proved, his innocence was presumed, and his person was free: till the votes of the last century had been counted and declared, he might peaceably secede to any of the allied cities of Italy, or Greece, or Asia. 204 His fame and fortunes were preserved, at least to his children, by this civil death; and he might still be happy in every rational and sensual enjoyment, if a mind accustomed to the ambitious tumult of Rome could support the uniformity and silence of Rhodes or Athens. A bolder effort was required to escape from the tyranny of the Caesars; but this effort was rendered familiar by the maxims of the stoics, the example of the bravest Romans, and the legal encouragements of suicide. The bodies of condemned criminals were exposed to public ignominy, and their children, a more serious evil, were reduced to poverty by the confiscation of their fortunes. But, if the victims of Tiberius and Nero anticipated the decree of the prince or senate, their courage and despatch were recompensed by the applause of the public, the decent honors of burial, and the validity of their testaments. 205 The exquisite avarice and cruelty of Domitian appear to have deprived the unfortunate of this last consolation, and it was still denied even by the clemency of the Antonines. A voluntary death, which, in the case of a capital offence, intervened between the accusation and the sentence, was admitted as a confession of guilt, and the spoils of the deceased were seized by the inhuman claims of the treasury. 206 Yet the civilians have always respected the natural right of a citizen to dispose of his life; and the posthumous disgrace invented by Tarquin, 207 to check the despair of his subjects, was never revived or imitated by succeeding tyrants. The powers of this world have indeed lost their dominion over him who is resolved on death; and his arm can only be restrained by the religious apprehension of a future state. Suicides are enumerated by Virgil among the unfortunate, rather than the guilty; 208 and the poetical fables of the infernal shades could not seriously influence the faith or practice of mankind. But the precepts of the gospel, or the church, have at length imposed a pious servitude on the minds of Christians, and condemn them to expect, without a murmur, the last stroke of disease or the executioner.

204 (return) [Footnote 204: Polyb. l. vi. p. 643. The extension of the empire and city of Rome obliged the exile to seek a more distant place of retirement.]

205 (return) [ Qui de se statuebant, humabanta corpora, manebant testamenta; pretium festinandi. Tacit. Annal. vi. 25, with the Notes of Lipsius.]

206 (return) [ Julius Paulus, (Sentent. Recept. l. v. tit. xii. p. 476,) the Pandects, (xlviii. tit. xxi.,) the Code, (l. ix. tit. l.,) Bynkershoek, (tom. i. p. 59, Observat. J. C. R. iv. 4,) and Montesquieu, (Esprit des Loix, l. xxix. c. ix.,) define the civil limitations of the liberty and privileges of suicide. The criminal penalties are the production of a later and darker age.]

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

208 (return) [ The sole resemblance of a violent and premature death has engaged Virgil (Aeneid, vi. 434—439) to confound suicides with infants, lovers, and persons unjustly condemned. Heyne, the best of his editors, is at a loss to deduce the idea, or ascertain the jurisprudence, of the Roman poet.]

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

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 1 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. 2 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, 3 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. 4

1 (return) [ See the family of Justin and Justinian in the Familiae Byzantine of Ducange, p. 89—101. The devout civilians, Ludewig (in Vit. Justinian. p. 131) and Heineccius (Hist. Juris. Roman. p. 374) have since illustrated the genealogy of their favorite prince.]

2 (return) [ In the story of Justin’s elevation I have translated into simple and concise prose the eight hundred verses of the two first books of Corippus, de Laudibus Justini Appendix Hist. Byzant. p. 401—416 Rome 1777.]

3 (return) [ It is surprising how Pagi (Critica. in Annal. Baron. tom. ii. p 639) could be tempted by any chronicles to contradict the plain and decisive text of Corippus, (vicina dona, l. ii. 354, vicina dies, l. iv. 1,) and to postpone, till A.D. 567, the consulship of Justin.]

4 (return) [ Theophan. Chronograph. p. 205. Whenever Cedrenus or Zonaras are mere transcribers, it is superfluous to allege their testimony.]

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? 5 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.” 6 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 relieved the distress of his camp with an immediate supply of corn and cattle. 7 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.

5 (return) [ Corippus, l. iii. 390. The unquestionable sense relates to the Turks, the conquerors of the Avars; but the word scultor has no apparent meaning, and the sole Ms. of Corippus, from whence the first edition (1581, apud Plantin) was printed, is no longer visible. The last editor, Foggini of Rome, has inserted the conjectural emendation of soldan: but the proofs of Ducange, (Joinville, Dissert. xvi. p. 238—240,) for the early use of this title among the Turks and Persians, are weak or ambiguous. And I must incline to the authority of D’Herbelot, (Bibliotheque Orient. p. 825,) who ascribes the word to the Arabic and Chaldaean tongues, and the date to the beginning of the xith century, when it was bestowed by the khalif of Bagdad on Mahmud, prince of Gazna, and conqueror of India.]

6 (return) [ For these characteristic speeches, compare the verse of Corippus (l. iii. 251—401) with the prose of Menander, (Excerpt. Legation. p 102, 103.) Their diversity proves that they did not copy each other their resemblance, that they drew from a common original.]

7 (return) [ For the Austrasian war, see Menander (Excerpt. Legat. p. 110,) Gregory of Tours, (Hist. Franc. l. iv. c 29,) and Paul the deacon, (de Gest. Langobard. l. ii. c. 10.)]

While Alboin served under his father’s standard, he encountered in battle, and transpierced with his lance, the rival prince of the Gepidae. 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 Gepidae, 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 Gepidae; 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 Gepidae, 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. 8 In this extraordinary visit he had probably seen the daughter of Cunimund, who soon after ascended the throne of the Gepidae. 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 Gepidae, 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. 9

8 (return) [ Paul Warnefrid, the deacon of Friuli, de Gest. Langobard. l. i. c. 23, 24. His pictures of national manners, though rudely sketched are more lively and faithful than those of Bede, or Gregory of Tours]

9 (return) [ The story is told by an impostor, (Theophylact. Simocat. l. vi. c. 10;) but he had art enough to build his fictions on public and notorious facts.]

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 Gepidae, 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 Gepidae 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 Gepidae, 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 Gepidae 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. 10 After this victory, no further obstacle could impede the progress of the confederates, and they faithfully executed the terms of their agreement. 11 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 Gepidae 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.

10 (return) [ It appears from Strabo, Pliny, and Ammianus Marcellinus, that the same practice was common among the Scythian tribes, (Muratori, Scriptores Rer. Italic. tom. i. p. 424.) The scalps of North America are likewise trophies of valor. The skull of Cunimund was preserved above two hundred years among the Lombards; and Paul himself was one of the guests to whom Duke Ratchis exhibited this cup on a high festival, (l. ii. c. 28.)]

11 (return) [ Paul, l. i. c. 27. Menander, in Excerpt Legat. p. 110, 111.]

The destruction of a mighty kingdom established the fame of Alboin. In the days of Charlemagne, the Bavarians, the Saxons, and the other tribes of the Teutonic language, still repeated the songs which described the heroic virtues, the valor, liberality, and fortune of the king of the Lombards. 12 But his ambition was yet unsatisfied; and the conqueror of the Gepidae turned his eyes from the Danube to the richer banks of the Po, and the Tyber. Fifteen years had not elapsed, since his subjects, the confederates of Narses, had visited the pleasant climate of Italy: the mountains, the rivers, the highways, were familiar to their memory: the report of their success, perhaps the view of their spoils, had kindled in the rising generation the flame of emulation and enterprise. Their hopes were encouraged by the spirit and eloquence of Alboin: and it is affirmed, that he spoke to their senses, by producing at the royal feast, the fairest and most exquisite fruits that grew spontaneously in the garden of the world. No sooner had he erected his standard, than the native strength of the Lombard was multiplied by the adventurous youth of Germany and Scythia. The robust peasantry of Noricum and Pannonia had resumed the manners of Barbarians; and the names of the Gepidae, Bulgarians, Sarmatians, and Bavarians, may be distinctly traced in the provinces of Italy. 13 Of the Saxons, the old allies of the Lombards, twenty thousand warriors, with their wives and children, accepted the invitation of Alboin. Their bravery contributed to his success; but the accession or the absence of their numbers was not sensibly felt in the magnitude of his host. Every mode of religion was freely practised by its respective votaries. The king of the Lombards had been educated in the Arian heresy; but the Catholics, in their public worship, were allowed to pray for his conversion; while the more stubborn Barbarians sacrificed a she-goat, or perhaps a captive, to the gods of their fathers. 14 The Lombards, and their confederates, were united by their common attachment to a chief, who excelled in all the virtues and vices of a savage hero; and the vigilance of Alboin provided an ample magazine of offensive and defensive arms for the use of the expedition. The portable wealth of the Lombards attended the march: their lands they cheerfully relinquished to the Avars, on the solemn promise, which was made and accepted without a smile, that if they failed in the conquest of Italy, these voluntary exiles should be reinstated in their former possessions.

12 (return) [ Ut hactenus etiam tam apud Bajoarior um gentem, quam et Saxmum, sed et alios ejusdem linguae homines..... in eorum carmini bus celebretur. Paul, l. i. c. 27. He died A.D. 799, (Muratori, in Praefat. tom. i. p. 397.) These German songs, some of which might be as old as Tacitus, (de Moribus Germ. c. 2,) were compiled and transcribed by Charlemagne. Barbara et antiquissima carmina, quibus veterum regum actus et bella canebantur scripsit memoriaeque mandavit, (Eginard, in Vit. Carol. Magn. c. 29, p. 130, 131.) The poems, which Goldast commends, (Animadvers. ad Eginard. p. 207,) appear to be recent and contemptible romances.]

13 (return) [ The other nations are rehearsed by Paul, (l. ii. c. 6, 26,) Muratori (Antichita Italiane, tom. i. dissert. i. p. 4) has discovered the village of the Bavarians, three miles from Modena.]

14 (return) [ Gregory the Roman (Dialog. l. i. iii. c. 27, 28, apud Baron. Annal Eccles. A.D. 579, No. 10) supposes that they likewise adored this she-goat. I know but of one religion in which the god and the victim are the same.]

They might have failed, if Narses had been the antagonist of the Lombards; and the veteran warriors, the associates of his Gothic victory, would have encountered with reluctance an enemy whom they dreaded and esteemed. But the weakness of the Byzantine court was subservient to the Barbarian cause; and it was for the ruin of Italy, that the emperor once listened to the complaints of his subjects. The virtues of Narses were stained with avarice; and, in his provincial reign of fifteen years, he accumulated a treasure of gold and silver which surpassed the modesty of a private fortune. His government was oppressive or unpopular, and the general discontent was expressed with freedom by the deputies of Rome. Before the throne of Justinian they boldly declared, that their Gothic servitude had been more tolerable than the despotism of a Greek eunuch; and that, unless their tyrant were instantly removed, they would consult their own happiness in the choice of a master. The apprehension of a revolt was urged by the voice of envy and detraction, which had so recently triumphed over the merit of Belisarius. A new exarch, Longinus, was appointed to supersede the conqueror of Italy, and the base motives of his recall were revealed in the insulting mandate of the empress Sophia, “that he should leave to men the exercise of arms, and return to his proper station among the maidens of the palace, where a distaff should be again placed in the hand of the eunuch.” “I will spin her such a thread as she shall not easily unravel!” is said to have been the reply which indignation and conscious virtue extorted from the hero. Instead of attending, a slave and a victim, at the gate of the Byzantine palace, he retired to Naples, from whence (if any credit is due to the belief of the times) Narses invited the Lombards to chastise the ingratitude of the prince and people. 15 But the passions of the people are furious and changeable, and the Romans soon recollected the merits, or dreaded the resentment, of their victorious general. By the mediation of the pope, who undertook a special pilgrimage to Naples, their repentance was accepted; and Narses, assuming a milder aspect and a more dutiful language, consented to fix his residence in the Capitol. His death, 16 though in the extreme period of old age, was unseasonable and premature, since his genius alone could have repaired the last and fatal error of his life. The reality, or the suspicion, of a conspiracy disarmed and disunited the Italians. The soldiers resented the disgrace, and bewailed the loss, of their general. They were ignorant of their new exarch; and Longinus was himself ignorant of the state of the army and the province. In the preceding years Italy had been desolated by pestilence and famine, and a disaffected people ascribed the calamities of nature to the guilt or folly of their rulers. 17

15 (return) [ The charge of the deacon against Narses (l. ii. c. 5) may be groundless; but the weak apology of the Cardinal (Baron. Annal Eccles. A.D. 567, No. 8—12) is rejected by the best critics—Pagi (tom. ii. p. 639, 640,) Muratori, (Annali d’ Italia, tom. v. p. 160—163,) and the last editors, Horatius Blancus, (Script. Rerum Italic. tom. i. p. 427, 428,) and Philip Argelatus, (Sigon. Opera, tom. ii. p. 11, 12.) The Narses who assisted at the coronation of Justin (Corippus, l. iii. 221) is clearly understood to be a different person.]

16 (return) [ The death of Narses is mentioned by Paul, l. ii. c. 11. Anastas. in Vit. Johan. iii. p. 43. Agnellus, Liber Pontifical. Raven. in Script. Rer. Italicarum, tom. ii. part i. p. 114, 124. Yet I cannot believe with Agnellus that Narses was ninety-five years of age. Is it probable that all his exploits were performed at fourscore?]

17 (return) [ The designs of Narses and of the Lombards for the invasion of Italy are exposed in the last chapter of the first book, and the seven last chapters of the second book, of Paul the deacon.]

Whatever might be the grounds of his security, Alboin neither expected nor encountered a Roman army in the field. He ascended the Julian Alps, and looked down with contempt and desire on the fruitful plains to which his victory communicated the perpetual appellation of Lombardy. A faithful chieftain, and a select band, were stationed at Forum Julii, the modern Friuli, to guard the passes of the mountains. The Lombards respected the strength of Pavia, and listened to the prayers of the Trevisans: their slow and heavy multitudes proceeded to occupy the palace and city of Verona; and Milan, now rising from her ashes, was invested by the powers of Alboin five months after his departure from Pannonia. Terror preceded his march: he found every where, or he left, a dreary solitude; and the pusillanimous Italians presumed, without a trial, that the stranger was invincible. Escaping to lakes, or rocks, or morasses, the affrighted crowds concealed some fragments of their wealth, and delayed the moment of their servitude. Paulinus, the patriarch of Aquileia, removed his treasures, sacred and profane, to the Isle of Grado, 18 and his successors were adopted by the infant republic of Venice, which was continually enriched by the public calamities. Honoratus, who filled the chair of St. Ambrose, had credulously accepted the faithless offers of a capitulation; and the archbishop, with the clergy and nobles of Milan, were driven by the perfidy of Alboin to seek a refuge in the less accessible ramparts of Genoa. Along the maritime coast, the courage of the inhabitants was supported by the facility of supply, the hopes of relief, and the power of escape; but from the Trentine hills to the gates of Ravenna and Rome the inland regions of Italy became, without a battle or a siege, the lasting patrimony of the Lombards. The submission of the people invited the Barbarian to assume the character of a lawful sovereign, and the helpless exarch was confined to the office of announcing to the emperor Justin the rapid and irretrievable loss of his provinces and cities. 19 One city, which had been diligently fortified by the Goths, resisted the arms of a new invader; and while Italy was subdued by the flying detachments of the Lombards, the royal camp was fixed above three years before the western gate of Ticinum, or Pavia. The same courage which obtains the esteem of a civilized enemy provokes the fury of a savage, and the impatient besieger had bound himself by a tremendous oath, that age, and sex, and dignity, should be confounded in a general massacre. The aid of famine at length enabled him to execute his bloody vow; but, as Alboin entered the gate, his horse stumbled, fell, and could not be raised from the ground. One of his attendants was prompted by compassion, or piety, to interpret this miraculous sign of the wrath of Heaven: the conqueror paused and relented; he sheathed his sword, and peacefully reposing himself in the palace of Theodoric, proclaimed to the trembling multitude that they should live and obey. Delighted with the situation of a city which was endeared to his pride by the difficulty of the purchase, the prince of the Lombards disdained the ancient glories of Milan; and Pavia, during some ages, was respected as the capital of the kingdom of Italy. 20

18 (return) [ Which from this translation was called New Aquileia, (Chron. Venet. p. 3.) The patriarch of Grado soon became the first citizen of the republic, (p. 9, &c.,) but his seat was not removed to Venice till the year 1450. He is now decorated with titles and honors; but the genius of the church has bowed to that of the state, and the government of a Catholic city is strictly Presbyterian. Thomassin, Discipline de l’Eglise, tom. i. p. 156, 157, 161—165. Amelot de la Houssaye, Gouvernement de Venise, tom. i. p. 256—261.]

19 (return) [ Paul has given a description of Italy, as it was then divided into eighteen regions, (l. ii. c. 14—24.) The Dissertatio Chorographica de Italia Medii Aevi, by Father Beretti, a Benedictine monk, and regius professor at Pavia, has been usefully consulted.]

20 (return) [ For the conquest of Italy, see the original materials of Paul, (l. p. 7—10, 12, 14, 25, 26, 27,) the eloquent narrative of Sigonius, (tom. il. de Regno Italiae, l. i. p. 13—19,) and the correct and critical review el Muratori, (Annali d’ Italia, tom. v. p. 164—180.)]

The reign of the founder was splendid and transient; and, before he could regulate his new conquests, Alboin fell a sacrifice to domestic treason and female revenge. In a palace near Verona, which had not been erected for the Barbarians, he feasted the companions of his arms; intoxication was the reward of valor, and the king himself was tempted by appetite, or vanity, to exceed the ordinary measure of his intemperance. After draining many capacious bowls of Rhaetian or Falernian wine, he called for the skull of Cunimund, the noblest and most precious ornament of his sideboard. The cup of victory was accepted with horrid applause by the circle of the Lombard chiefs. “Fill it again with wine,” exclaimed the inhuman conqueror, “fill it to the brim: carry this goblet to the queen, and request in my name that she would rejoice with her father.” In an agony of grief and rage, Rosamond had strength to utter, “Let the will of my lord be obeyed!” and, touching it with her lips, pronounced a silent imprecation, that the insult should be washed away in the blood of Alboin. Some indulgence might be due to the resentment of a daughter, if she had not already violated the duties of a wife. Implacable in her enmity, or inconstant in her love, the queen of Italy had stooped from the throne to the arms of a subject, and Helmichis, the king’s armor-bearer, was the secret minister of her pleasure and revenge. Against the proposal of the murder, he could no longer urge the scruples of fidelity or gratitude; but Helmichis trembled when he revolved the danger as well as the guilt, when he recollected the matchless strength and intrepidity of a warrior whom he had so often attended in the field of battle. He pressed and obtained, that one of the bravest champions of the Lombards should be associated to the enterprise; but no more than a promise of secrecy could be drawn from the gallant Peredeus, and the mode of seduction employed by Rosamond betrays her shameless insensibility both to honor and love. She supplied the place of one of her female attendants who was beloved by Peredeus, and contrived some excuse for darkness and silence, till she could inform her companion that he had enjoyed the queen of the Lombards, and that his own death, or the death of Alboin, must be the consequence of such treasonable adultery. In this alternative he chose rather to be the accomplice than the victim of Rosamond, 21 whose undaunted spirit was incapable of fear or remorse. She expected and soon found a favorable moment, when the king, oppressed with wine, had retired from the table to his afternoon slumbers. His faithless spouse was anxious for his health and repose: the gates of the palace were shut, the arms removed, the attendants dismissed, and Rosamond, after lulling him to rest by her tender caresses, unbolted the chamber door, and urged the reluctant conspirators to the instant execution of the deed. On the first alarm, the warrior started from his couch: his sword, which he attempted to draw, had been fastened to the scabbard by the hand of Rosamond; and a small stool, his only weapon, could not long protect him from the spears of the assassins. The daughter of Cunimund smiled in his fall: his body was buried under the staircase of the palace; and the grateful posterity of the Lombards revered the tomb and the memory of their victorious leader.

21 (return) [ The classical reader will recollect the wife and murder of Candaules, so agreeably told in the first book of Herodotus. The choice of Gyges, may serve as the excuse of Peredeus; and this soft insinuation of an odious idea has been imitated by the best writers of antiquity, (Graevius, ad Ciceron. Orat. pro Miloue c. 10)]

XLV. State Of Italy Under The Lombards.—Part II

The ambitious Rosamond aspired to reign in the name of her lover; the city and palace of Verona were awed by her power; and a faithful band of her native Gepidae was prepared to applaud the revenge, and to second the wishes, of their sovereign. But the Lombard chiefs, who fled in the first moments of consternation and disorder, had resumed their courage and collected their powers; and the nation, instead of submitting to her reign, demanded, with unanimous cries, that justice should be executed on the guilty spouse and the murderers of their king. She sought a refuge among the enemies of her country; and a criminal who deserved the abhorrence of mankind was protected by the selfish policy of the exarch. With her daughter, the heiress of the Lombard throne, her two lovers, her trusty Gepidae, and the spoils of the palace of Verona, Rosamond descended the Adige and the Po, and was transported by a Greek vessel to the safe harbor of Ravenna. Longinus beheld with delight the charms and the treasures of the widow of Alboin: her situation and her past conduct might justify the most licentious proposals; and she readily listened to the passion of a minister, who, even in the decline of the empire, was respected as the equal of kings. The death of a jealous lover was an easy and grateful sacrifice; and, as Helmichis issued from the bath, he received the deadly potion from the hand of his mistress. The taste of the liquor, its speedy operation, and his experience of the character of Rosamond, convinced him that he was poisoned: he pointed his dagger to her breast, compelled her to drain the remainder of the cup, and expired in a few minutes, with the consolation that she could not survive to enjoy the fruits of her wickedness. The daughter of Alboin and Rosamond, with the richest spoils of the Lombards, was embarked for Constantinople: the surprising strength of Peredeus amused and terrified the Imperial court: 2111 his blindness and revenge exhibited an imperfect copy of the adventures of Samson. By the free suffrage of the nation, in the assembly of Pavia, Clepho, one of their noblest chiefs, was elected as the successor of Alboin. Before the end of eighteen months, the throne was polluted by a second murder: Clepho was stabbed by the hand of a domestic; the regal office was suspended above ten years during the minority of his son Autharis; and Italy was divided and oppressed by a ducal aristocracy of thirty tyrants. 22

2111 (return) [ He killed a lion. His eyes were put out by the timid Justin. Peredeus requesting an interview, Justin substituted two patricians, whom the blinded Barbarian stabbed to the heart with two concealed daggers. See Le Beau, vol. x. p. 99.—M.]

22 (return) [ See the history of Paul, l. ii. c. 28—32. I have borrowed some interesting circumstances from the Liber Pontificalis of Agnellus, in Script. Rer. Ital. tom. ii. p. 124. Of all chronological guides, Muratori is the safest.]

When the nephew of Justinian ascended the throne, he proclaimed a new aera of happiness and glory. The annals of the second Justin 23 are marked with disgrace abroad and misery at home. In the West, the Roman empire was afflicted by the loss of Italy, the desolation of Africa, and the conquests of the Persians. Injustice prevailed both in the capital and the provinces: the rich trembled for their property, the poor for their safety, the ordinary magistrates were ignorant or venal, the occasional remedies appear to have been arbitrary and violent, and the complaints of the people could no longer be silenced by the splendid names of a legislator and a conqueror. The opinion which imputes to the prince all the calamities of his times may be countenanced by the historian as a serious truth or a salutary prejudice. Yet a candid suspicion will arise, that the sentiments of Justin were pure and benevolent, and that he might have filled his station without reproach, if the faculties of his mind had not been impaired by disease, which deprived the emperor of the use of his feet, and confined him to the palace, a stranger to the complaints of the people and the vices of the government. The tardy knowledge of his own impotence determined him to lay down the weight of the diadem; and, in the choice of a worthy substitute, he showed some symptoms of a discerning and even magnanimous spirit. The only son of Justin and Sophia died in his infancy; their daughter Arabia was the wife of Baduarius, 24 superintendent of the palace, and afterwards commander of the Italian armies, who vainly aspired to confirm the rights of marriage by those of adoption. While the empire appeared an object of desire, Justin was accustomed to behold with jealousy and hatred his brothers and cousins, the rivals of his hopes; nor could he depend on the gratitude of those who would accept the purple as a restitution, rather than a gift. Of these competitors, one had been removed by exile, and afterwards by death; and the emperor himself had inflicted such cruel insults on another, that he must either dread his resentment or despise his patience. This domestic animosity was refined into a generous resolution of seeking a successor, not in his family, but in the republic; and the artful Sophia recommended Tiberius, 25 his faithful captain of the guards, whose virtues and fortune the emperor might cherish as the fruit of his judicious choice. The ceremony of his elevation to the rank of Caesar, or Augustus, was performed in the portico of the palace, in the presence of the patriarch and the senate. Justin collected the remaining strength of his mind and body; but the popular belief that his speech was inspired by the Deity betrays a very humble opinion both of the man and of the times. 26 “You behold,” said the emperor, “the ensigns of supreme power. You are about to receive them, not from my hand, but from the hand of God. Honor them, and from them you will derive honor. Respect the empress your mother: you are now her son; before, you were her servant. Delight not in blood; abstain from revenge; avoid those actions by which I have incurred the public hatred; and consult the experience, rather than the example, of your predecessor. As a man, I have sinned; as a sinner, even in this life, I have been severely punished: but these servants, (and he pointed to his ministers,) who have abused my confidence, and inflamed my passions, will appear with me before the tribunal of Christ. I have been dazzled by the splendor of the diadem: be thou wise and modest; remember what you have been, remember what you are. You see around us your slaves, and your children: with the authority, assume the tenderness, of a parent. Love your people like yourself; cultivate the affections, maintain the discipline, of the army; protect the fortunes of the rich, relieve the necessities of the poor.” 27 The assembly, in silence and in tears, applauded the counsels, and sympathized with the repentance, of their prince the patriarch rehearsed the prayers of the church; Tiberius received the diadem on his knees; and Justin, who in his abdication appeared most worthy to reign, addressed the new monarch in the following words: “If you consent, I live; if you command, I die: may the God of heaven and earth infuse into your heart whatever I have neglected or forgotten.” The four last years of the emperor Justin were passed in tranquil obscurity: his conscience was no longer tormented by the remembrance of those duties which he was incapable of discharging; and his choice was justified by the filial reverence and gratitude of Tiberius.

23 (return) [ The original authors for the reign of Justin the younger are Evagrius, Hist. Eccles. l. v. c. 1—12; Theophanes, in Chonograph. p. 204—210; Zonaras, tom. ii. l. xiv. p. 70-72; Cedrenus, in Compend. p. 388—392.]

24 (return) [ Dispositorque novus sacrae Baduarius aulae. Successor soceri mox factus Cura-palati.—Cerippus. Baduarius is enumerated among the descendants and allies of the house of Justinian. A family of noble Venetians (Casa Badoero) built churches and gave dukes to the republic as early as the ninth century; and, if their descent be admitted, no kings in Europe can produce a pedigree so ancient and illustrious. Ducange, Fam. Byzantin, p. 99 Amelot de la Houssaye, Gouvernement de Venise, tom. ii. p. 555.]

25 (return) [ The praise bestowed on princes before their elevation is the purest and most weighty. Corippus has celebrated Tiberius at the time of the accession of Justin, (l. i. 212—222.) Yet even a captain of the guards might attract the flattery of an African exile.]

26 (return) [ Evagrius (l. v. c. 13) has added the reproach to his ministers He applies this speech to the ceremony when Tiberius was invested with the rank of Caesar. The loose expression, rather than the positive error, of Theophanes, &c., has delayed it to his Augustan investitura immediately before the death of Justin.]

27 (return) [ Theophylact Simocatta (l. iii. c. 11) declares that he shall give to posterity the speech of Justin as it was pronounced, without attempting to correct the imperfections of language or rhetoric. Perhaps the vain sophist would have been incapable of producing such sentiments.]

Among the virtues of Tiberius, 28 his beauty (he was one of the tallest and most comely of the Romans) might introduce him to the favor of Sophia; and the widow of Justin was persuaded, that she should preserve her station and influence under the reign of a second and more youthful husband. But, if the ambitious candidate had been tempted to flatter and dissemble, it was no longer in his power to fulfil her expectations, or his own promise. The factions of the hippodrome demanded, with some impatience, the name of their new empress: both the people and Sophia were astonished by the proclamation of Anastasia, the secret, though lawful, wife of the emperor Tiberius. Whatever could alleviate the disappointment of Sophia, Imperial honors, a stately palace, a numerous household, was liberally bestowed by the piety of her adopted son; on solemn occasions he attended and consulted the widow of his benefactor; but her ambition disdained the vain semblance of royalty, and the respectful appellation of mother served to exasperate, rather than appease, the rage of an injured woman. While she accepted, and repaid with a courtly smile, the fair expressions of regard and confidence, a secret alliance was concluded between the dowager empress and her ancient enemies; and Justinian, the son of Germanus, was employed as the instrument of her revenge. The pride of the reigning house supported, with reluctance, the dominion of a stranger: the youth was deservedly popular; his name, after the death of Justin, had been mentioned by a tumultuous faction; and his own submissive offer of his head with a treasure of sixty thousand pounds, might be interpreted as an evidence of guilt, or at least of fear. Justinian received a free pardon, and the command of the eastern army. The Persian monarch fled before his arms; and the acclamations which accompanied his triumph declared him worthy of the purple. His artful patroness had chosen the month of the vintage, while the emperor, in a rural solitude, was permitted to enjoy the pleasures of a subject. On the first intelligence of her designs, he returned to Constantinople, and the conspiracy was suppressed by his presence and firmness. From the pomp and honors which she had abused, Sophia was reduced to a modest allowance: Tiberius dismissed her train, intercepted her correspondence, and committed to a faithful guard the custody of her person. But the services of Justinian were not considered by that excellent prince as an aggravation of his offences: after a mild reproof, his treason and ingratitude were forgiven; and it was commonly believed, that the emperor entertained some thoughts of contracting a double alliance with the rival of his throne. The voice of an angel (such a fable was propagated) might reveal to the emperor, that he should always triumph over his domestic foes; but Tiberius derived a firmer assurance from the innocence and generosity of his own mind.

28 (return) [ For the character and reign of Tiberius, see Evagrius, l v. c. 13. Theophylact, l. iii. c. 12, &c. Theophanes, in Chron. p. 2 0—213. Zonaras, tom. ii. l. xiv. p. 72. Cedrenus, p. 392. Paul Warnefrid, de Gestis Langobard. l. iii. c. 11, 12. The deacon of Forum Juli appears to have possessed some curious and authentic facts.]

With the odious name of Tiberius, he assumed the more popular appellation of Constantine, and imitated the purer virtues of the Antonines. After recording the vice or folly of so many Roman princes, it is pleasing to repose, for a moment, on a character conspicuous by the qualities of humanity, justice, temperance, and fortitude; to contemplate a sovereign affable in his palace, pious in the church, impartial on the seat of judgment, and victorious, at least by his generals, in the Persian war. The most glorious trophy of his victory consisted in a multitude of captives, whom Tiberius entertained, redeemed, and dismissed to their native homes with the charitable spirit of a Christian hero. The merit or misfortunes of his own subjects had a dearer claim to his beneficence, and he measured his bounty not so much by their expectations as by his own dignity. This maxim, however dangerous in a trustee of the public wealth, was balanced by a principle of humanity and justice, which taught him to abhor, as of the basest alloy, the gold that was extracted from the tears of the people. For their relief, as often as they had suffered by natural or hostile calamities, he was impatient to remit the arrears of the past, or the demands of future taxes: he sternly rejected the servile offerings of his ministers, which were compensated by tenfold oppression; and the wise and equitable laws of Tiberius excited the praise and regret of succeeding times. Constantinople believed that the emperor had discovered a treasure: but his genuine treasure consisted in the practice of liberal economy, and the contempt of all vain and superfluous expense. The Romans of the East would have been happy, if the best gift of Heaven, a patriot king, had been confirmed as a proper and permanent blessing. But in less than four years after the death of Justin, his worthy successor sunk into a mortal disease, which left him only sufficient time to restore the diadem, according to the tenure by which he held it, to the most deserving of his fellow-citizens. He selected Maurice from the crowd, a judgment more precious than the purple itself: the patriarch and senate were summoned to the bed of the dying prince: he bestowed his daughter and the empire; and his last advice was solemnly delivered by the voice of the quaestor. Tiberius expressed his hope that the virtues of his son and successor would erect the noblest mausoleum to his memory. His memory was embalmed by the public affliction; but the most sincere grief evaporates in the tumult of a new reign, and the eyes and acclamations of mankind were speedily directed to the rising sun. The emperor Maurice derived his origin from ancient Rome; 29 but his immediate parents were settled at Arabissus in Cappadocia, and their singular felicity preserved them alive to behold and partake the fortune of their august son. The youth of Maurice was spent in the profession of arms: Tiberius promoted him to the command of a new and favorite legion of twelve thousand confederates; his valor and conduct were signalized in the Persian war; and he returned to Constantinople to accept, as his just reward, the inheritance of the empire. Maurice ascended the throne at the mature age of forty-three years; and he reigned above twenty years over the East and over himself; 30 expelling from his mind the wild democracy of passions, and establishing (according to the quaint expression of Evagrius) a perfect aristocracy of reason and virtue. Some suspicion will degrade the testimony of a subject, though he protests that his secret praise should never reach the ear of his sovereign, 31 and some failings seem to place the character of Maurice below the purer merit of his predecessor. His cold and reserved demeanor might be imputed to arrogance; his justice was not always exempt from cruelty, nor his clemency from weakness; and his rigid economy too often exposed him to the reproach of avarice. But the rational wishes of an absolute monarch must tend to the happiness of his people. Maurice was endowed with sense and courage to promote that happiness, and his administration was directed by the principles and example of Tiberius. The pusillanimity of the Greeks had introduced so complete a separation between the offices of king and of general, that a private soldier, who had deserved and obtained the purple, seldom or never appeared at the head of his armies. Yet the emperor Maurice enjoyed the glory of restoring the Persian monarch to his throne; his lieutenants waged a doubtful war against the Avars of the Danube; and he cast an eye of pity, of ineffectual pity, on the abject and distressful state of his Italian provinces.

29 (return) [ It is therefore singular enough that Paul (l. iii. c. 15) should distinguish him as the first Greek emperor—primus ex Graecorum genere in Imperio constitutus. His immediate predecessors had in deed been born in the Latin provinces of Europe: and a various reading, in Graecorum Imperio, would apply the expression to the empire rather than the prince.]

30 (return) [ Consult, for the character and reign of Maurice, the fifth and sixth books of Evagrius, particularly l. vi. c. l; the eight books of his prolix and florid history by Theophylact Simocatta; Theophanes, p. 213, &c.; Zonaras, tom. ii. l. xiv. p. 73; Cedrenus, p. 394.]

31 (return) [ Evagrius composed his history in the twelfth year of Maurice; and he had been so wisely indiscreet that the emperor know and rewarded his favorable opinion, (l. vi. c. 24.)]

From Italy the emperors were incessantly tormented by tales of misery and demands of succor, which extorted the humiliating confession of their own weakness. The expiring dignity of Rome was only marked by the freedom and energy of her complaints: “If you are incapable,” she said, “of delivering us from the sword of the Lombards, save us at least from the calamity of famine.” Tiberius forgave the reproach, and relieved the distress: a supply of corn was transported from Egypt to the Tyber; and the Roman people, invoking the name, not of Camillus, but of St. Peter repulsed the Barbarians from their walls. But the relief was accidental, the danger was perpetual and pressing; and the clergy and senate, collecting the remains of their ancient opulence, a sum of three thousand pounds of gold, despatched the patrician Pamphronius to lay their gifts and their complaints at the foot of the Byzantine throne. The attention of the court, and the forces of the East, were diverted by the Persian war: but the justice of Tiberius applied the subsidy to the defence of the city; and he dismissed the patrician with his best advice, either to bribe the Lombard chiefs, or to purchase the aid of the kings of France. Notwithstanding this weak invention, Italy was still afflicted, Rome was again besieged, and the suburb of Classe, only three miles from Ravenna, was pillaged and occupied by the troops of a simple duke of Spoleto. Maurice gave audience to a second deputation of priests and senators: the duties and the menaces of religion were forcibly urged in the letters of the Roman pontiff; and his nuncio, the deacon Gregory, was alike qualified to solicit the powers either of heaven or of the earth.

The emperor adopted, with stronger effect, the measures of his predecessor: some formidable chiefs were persuaded to embrace the friendship of the Romans; and one of them, a mild and faithful Barbarian, lived and died in the service of the exarchs: the passes of the Alps were delivered to the Franks; and the pope encouraged them to violate, without scruple, their oaths and engagements to the misbelievers. Childebert, the great-grandson of Clovis, was persuaded to invade Italy by the payment of fifty thousand pieces; but, as he had viewed with delight some Byzantine coin of the weight of one pound of gold, the king of Austrasia might stipulate, that the gift should be rendered more worthy of his acceptance, by a proper mixture of these respectable medals. The dukes of the Lombards had provoked by frequent inroads their powerful neighbors of Gaul. As soon as they were apprehensive of a just retaliation, they renounced their feeble and disorderly independence: the advantages of real government, union, secrecy, and vigor, were unanimously confessed; and Autharis, the son of Clepho, had already attained the strength and reputation of a warrior. Under the standard of their new king, the conquerors of Italy withstood three successive invasions, one of which was led by Childebert himself, the last of the Merovingian race who descended from the Alps. The first expedition was defeated by the jealous animosity of the Franks and Alemanni. In the second they were vanquished in a bloody battle, with more loss and dishonor than they had sustained since the foundation of their monarchy. Impatient for revenge, they returned a third time with accumulated force, and Autharis yielded to the fury of the torrent. The troops and treasures of the Lombards were distributed in the walled towns between the Alps and the Apennine. A nation, less sensible of danger than of fatigue and delay, soon murmured against the folly of their twenty commanders; and the hot vapors of an Italian sun infected with disease those tramontane bodies which had already suffered the vicissitudes of intemperance and famine. The powers that were inadequate to the conquest, were more than sufficient for the desolation, of the country; nor could the trembling natives distinguish between their enemies and their deliverers. If the junction of the Merovingian and Imperial forces had been effected in the neighborhood of Milan, perhaps they might have subverted the throne of the Lombards; but the Franks expected six days the signal of a flaming village, and the arms of the Greeks were idly employed in the reduction of Modena and Parma, which were torn from them after the retreat of their transalpine allies. The victorious Autharis asserted his claim to the dominion of Italy. At the foot of the Rhaetian Alps, he subdued the resistance, and rifled the hidden treasures, of a sequestered island in the Lake of Comum. At the extreme point of the Calabria, he touched with his spear a column on the sea-shore of Rhegium, 32 proclaiming that ancient landmark to stand the immovable boundary of his kingdom. 33

32 (return) [ The Columna Rhegina, in the narrowest part of the Faro of Messina, one hundred stadia from Rhegium itself, is frequently mentioned in ancient geography. Cluver. Ital. Antiq. tom. ii. p. 1295. Lucas Holsten. Annotat. ad Cluver. p. 301. Wesseling, Itinerar. p. 106.]

33 (return) [ The Greek historians afford some faint hints of the wars of Italy (Menander, in Excerpt. Legat. p. 124, 126. Theophylact, l. iii. c. 4.) The Latins are more satisfactory; and especially Paul Warnefrid, (l iii. c. 13—34,) who had read the more ancient histories of Secundus and Gregory of Tours. Baronius produces some letters of the popes, &c.; and the times are measured by the accurate scale of Pagi and Muratori.]

During a period of two hundred years, Italy was unequally divided between the kingdom of the Lombards and the exarchate of Ravenna. The offices and professions, which the jealousy of Constantine had separated, were united by the indulgence of Justinian; and eighteen successive exarchs were invested, in the decline of the empire, with the full remains of civil, of military, and even of ecclesiastical, power. Their immediate jurisdiction, which was afterwards consecrated as the patrimony of St. Peter, extended over the modern Romagna, the marshes or valleys of Ferrara and Commachio, 34 five maritime cities from Rimini to Ancona, and a second inland Pentapolis, between the Adriatic coast and the hills of the Apennine. Three subordinate provinces, of Rome, of Venice, and of Naples, which were divided by hostile lands from the palace of Ravenna, acknowledged, both in peace and war, the supremacy of the exarch. The duchy of Rome appears to have included the Tuscan, Sabine, and Latin conquests, of the first four hundred years of the city, and the limits may be distinctly traced along the coast, from Civita Vecchia to Terracina, and with the course of the Tyber from Ameria and Narni to the port of Ostia. The numerous islands from Grado to Chiozza composed the infant dominion of Venice: but the more accessible towns on the Continent were overthrown by the Lombards, who beheld with impotent fury a new capital rising from the waves. The power of the dukes of Naples was circumscribed by the bay and the adjacent isles, by the hostile territory of Capua, and by the Roman colony of Amalphi, 35 whose industrious citizens, by the invention of the mariner’s compass, have unveiled the face of the globe. The three islands of Sardinia, Corsica, and Sicily, still adhered to the empire; and the acquisition of the farther Calabria removed the landmark of Autharis from the shore of Rhegium to the Isthmus of Consentia. In Sardinia, the savage mountaineers preserved the liberty and religion of their ancestors; and the husbandmen of Sicily were chained to their rich and cultivated soil. Rome was oppressed by the iron sceptre of the exarchs, and a Greek, perhaps a eunuch, insulted with impunity the ruins of the Capitol. But Naples soon acquired the privilege of electing her own dukes: 36 the independence of Amalphi was the fruit of commerce; and the voluntary attachment of Venice was finally ennobled by an equal alliance with the Eastern empire. On the map of Italy, the measure of the exarchate occupies a very inadequate space, but it included an ample proportion of wealth, industry, and population. The most faithful and valuable subjects escaped from the Barbarian yoke; and the banners of Pavia and Verona, of Milan and Padua, were displayed in their respective quarters by the new inhabitants of Ravenna. The remainder of Italy was possessed by the Lombards; and from Pavia, the royal seat, their kingdom was extended to the east, the north, and the west, as far as the confines of the Avars, the Bavarians, and the Franks of Austrasia and Burgundy. In the language of modern geography, it is now represented by the Terra Firma of the Venetian republic, Tyrol, the Milanese, Piedmont, the coast of Genoa, Mantua, Parma, and Modena, the grand duchy of Tuscany, and a large portion of the ecclesiastical state from Perugia to the Adriatic. The dukes, and at length the princes, of Beneventum, survived the monarchy, and propagated the name of the Lombards. From Capua to Tarentum, they reigned near five hundred years over the greatest part of the present kingdom of Naples. 37

34 (return) [ The papal advocates, Zacagni and Fontanini, might justly claim the valley or morass of Commachio as a part of the exarchate. But the ambition of including Modena, Reggio, Parma, and Placentia, has darkened a geographical question somewhat doubtful and obscure Even Muratori, as the servant of the house of Este, is not free from partiality and prejudice.]

35 (return) [ See Brenckman, Dissert. Ima de Republica Amalphitana, p. 1—42, ad calcem Hist. Pandect. Florent.]

36 (return) [ Gregor. Magn. l. iii. epist. 23, 25.]

37 (return) [ I have described the state of Italy from the excellent Dissertation of Beretti. Giannone (Istoria Civile, tom. i. p. 374—387) has followed the learned Camillo Pellegrini in the geography of the kingdom of Naples. After the loss of the true Calabria, the vanity of the Greeks substituted that name instead of the more ignoble appellation of Bruttium; and the change appears to have taken place before the time of Charlemagne, (Eginard, p. 75.)]

In comparing the proportion of the victorious and the vanquished people, the change of language will afford the most probably inference. According to this standard, it will appear, that the Lombards of Italy, and the Visigoths of Spain, were less numerous than the Franks or Burgundians; and the conquerors of Gaul must yield, in their turn, to the multitude of Saxons and Angles who almost eradicated the idioms of Britain. The modern Italian has been insensibly formed by the mixture of nations: the awkwardness of the Barbarians in the nice management of declensions and conjugations reduced them to the use of articles and auxiliary verbs; and many new ideas have been expressed by Teutonic appellations. Yet the principal stock of technical and familiar words is found to be of Latin derivation; 38 and, if we were sufficiently conversant with the obsolete, the rustic, and the municipal dialects of ancient Italy, we should trace the origin of many terms which might, perhaps, be rejected by the classic purity of Rome. A numerous army constitutes but a small nation, and the powers of the Lombards were soon diminished by the retreat of twenty thousand Saxons, who scorned a dependent situation, and returned, after many bold and perilous adventures, to their native country. 39 The camp of Alboin was of formidable extent, but the extent of a camp would be easily circumscribed within the limits of a city; and its martial inhabitants must be thinly scattered over the face of a large country. When Alboin descended from the Alps, he invested his nephew, the first duke of Friuli, with the command of the province and the people: but the prudent Gisulf would have declined the dangerous office, unless he had been permitted to choose, among the nobles of the Lombards, a sufficient number of families 40 to form a perpetual colony of soldiers and subjects. In the progress of conquest, the same option could not be granted to the dukes of Brescia or Bergamo, or Pavia or Turin, of Spoleto or Beneventum; but each of these, and each of their colleagues, settled in his appointed district with a band of followers who resorted to his standard in war and his tribunal in peace. Their attachment was free and honorable: resigning the gifts and benefits which they had accepted, they might emigrate with their families into the jurisdiction of another duke; but their absence from the kingdom was punished with death, as a crime of military desertion. 41 The posterity of the first conquerors struck a deeper root into the soil, which, by every motive of interest and honor, they were bound to defend. A Lombard was born the soldier of his king and his duke; and the civil assemblies of the nation displayed the banners, and assumed the appellation, of a regular army. Of this army, the pay and the rewards were drawn from the conquered provinces; and the distribution, which was not effected till after the death of Alboin, is disgraced by the foul marks of injustice and rapine. Many of the most wealthy Italians were slain or banished; the remainder were divided among the strangers, and a tributary obligation was imposed (under the name of hospitality) of paying to the Lombards a third part of the fruits of the earth. Within less than seventy years, this artificial system was abolished by a more simple and solid tenure. 42 Either the Roman landlord was expelled by his strong and insolent guest, or the annual payment, a third of the produce, was exchanged by a more equitable transaction for an adequate proportion of landed property. Under these foreign masters, the business of agriculture, in the cultivation of corn, wines, and olives, was exercised with degenerate skill and industry by the labor of the slaves and natives. But the occupations of a pastoral life were more pleasing to the idleness of the Barbarian. In the rich meadows of Venetia, they restored and improved the breed of horses, for which that province had once been illustrious; 43 and the Italians beheld with astonishment a foreign race of oxen or buffaloes. 44 The depopulation of Lombardy, and the increase of forests, afforded an ample range for the pleasures of the chase. 45 That marvellous art which teaches the birds of the air to acknowledge the voice, and execute the commands, of their master, had been unknown to the ingenuity of the Greeks and Romans. 46 Scandinavia and Scythia produce the boldest and most tractable falcons: 47 they were tamed and educated by the roving inhabitants, always on horseback and in the field. This favorite amusement of our ancestors was introduced by the Barbarians into the Roman provinces; and the laws of Italy esteemed the sword and the hawk as of equal dignity and importance in the hands of a noble Lombard. 48

38 (return) [ Maffei (Verona Illustrata, part i. p. 310—321) and Muratori (Antichita Italiane, tom. ii. Dissertazione xxxii. xxxiii. p. 71—365) have asserted the native claims of the Italian idiom; the former with enthusiasm, the latter with discretion; both with learning, ingenuity, and truth. Note: Compare the admirable sketch of the degeneracy of the Latin language and the formation of the Italian in Hallam, Middle Ages, vol. iii. p. 317 329.—M.]

39 (return) [ Paul, de Gest. Langobard. l. iii. c. 5, 6, 7.]

40 (return) [ Paul, l. ii. c. 9. He calls these families or generations by the Teutonic name of Faras, which is likewise used in the Lombard laws. The humble deacon was not insensible of the nobility of his own race. See l. iv. c. 39.]

41 (return) [ Compare No. 3 and 177 of the Laws of Rotharis.]

42 (return) [ Paul, l. ii. c. 31, 32, l. iii. c. 16. The Laws of Rotharis, promulgated A.D. 643, do not contain the smallest vestige of this payment of thirds; but they preserve many curious circumstances of the state of Italy and the manners of the Lombards.]

43 (return) [ The studs of Dionysius of Syracuse, and his frequent victories in the Olympic games, had diffused among the Greeks the fame of the Venetian horses; but the breed was extinct in the time of Strabo, (l. v. p. 325.) Gisulf obtained from his uncle generosarum equarum greges. Paul, l. ii. c. 9. The Lombards afterwards introduced caballi sylvatici—wild horses. Paul, l. iv. c. 11.]

44 (return) [ Tunc (A.D. 596) primum, bubali in Italiam delati Italiae populis miracula fuere, (Paul Warnefrid, l. iv. c. 11.) The buffaloes, whose native climate appears to be Africa and India, are unknown to Europe, except in Italy, where they are numerous and useful. The ancients were ignorant of these animals, unless Aristotle (Hist. Anim. l. ii. c. 1, p. 58, Paris, 1783) has described them as the wild oxen of Arachosia. See Buffon, Hist. Naturelle, tom. xi. and Supplement, tom. vi. Hist. Generale des Voyages, tom. i. p. 7, 481, ii. 105, iii. 291, iv. 234, 461, v. 193, vi. 491, viii. 400, x. 666. Pennant’s Quadrupedes, p. 24. Dictionnaire d’Hist. Naturelle, par Valmont de Bomare, tom. ii. p. 74. Yet I must not conceal the suspicion that Paul, by a vulgar error, may have applied the name of bubalus to the aurochs, or wild bull, of ancient Germany.]

45 (return) [ Consult the xxist Dissertation of Muratori.]

46 (return) [ Their ignorance is proved by the silence even of those who professedly treat of the arts of hunting and the history of animals. Aristotle, (Hist. Animal. l. ix. c. 36, tom. i. p. 586, and the Notes of his last editor, M. Camus, tom. ii. p. 314,) Pliny, (Hist. Natur. l. x. c. 10,) Aelian (de Natur. Animal. l. ii. c. 42,) and perhaps Homer, (Odyss. xxii. 302-306,) describe with astonishment a tacit league and common chase between the hawks and the Thracian fowlers.]

47 (return) [ Particularly the gerfaut, or gyrfalcon, of the size of a small eagle. See the animated description of M. de Buffon, Hist. Naturelle, tom. xvi. p. 239, &c.]

48 (return) [ Script. Rerum Italicarum, tom. i. part ii. p. 129. This is the xvith law of the emperor Lewis the Pious. His father Charlemagne had falconers in his household as well as huntsmen, (Memoires sur l’ancienne Chevalerie, par M. de St. Palaye, tom. iii. p. 175.) I observe in the laws of Rotharis a more early mention of the art of hawking, (No. 322;) and in Gaul, in the fifth century, it is celebrated by Sidonius Apollinaris among the talents of Avitus, (202—207.) * Note: See Beckman, Hist. of Inventions, vol. i. p. 319—M.]

XLV. State Of Italy Under The Lombards.—Part III

So rapid was the influence of climate and example, that the Lombards of the fourth generation surveyed with curiosity and affright the portraits of their savage forefathers. 49 Their heads were shaven behind, but the shaggy locks hung over their eyes and mouth, and a long beard represented the name and character of the nation. Their dress consisted of loose linen garments, after the fashion of the Anglo-Saxons, which were decorated, in their opinion, with broad stripes or variegated colors. The legs and feet were clothed in long hose, and open sandals; and even in the security of peace a trusty sword was constantly girt to their side. Yet this strange apparel, and horrid aspect, often concealed a gentle and generous disposition; and as soon as the rage of battle had subsided, the captives and subjects were sometimes surprised by the humanity of the victor. The vices of the Lombards were the effect of passion, of ignorance, of intoxication; their virtues are the more laudable, as they were not affected by the hypocrisy of social manners, nor imposed by the rigid constraint of laws and education. I should not be apprehensive of deviating from my subject, if it were in my power to delineate the private life of the conquerors of Italy; and I shall relate with pleasure the adventurous gallantry of Autharis, which breathes the true spirit of chivalry and romance. 50 After the loss of his promised bride, a Merovingian princess, he sought in marriage the daughter of the king of Bavaria; and Garribald accepted the alliance of the Italian monarch. Impatient of the slow progress of negotiation, the ardent lover escaped from his palace, and visited the court of Bavaria in the train of his own embassy. At the public audience, the unknown stranger advanced to the throne, and informed Garribald that the ambassador was indeed the minister of state, but that he alone was the friend of Autharis, who had trusted him with the delicate commission of making a faithful report of the charms of his spouse. Theudelinda was summoned to undergo this important examination; and, after a pause of silent rapture, he hailed her as the queen of Italy, and humbly requested that, according to the custom of the nation, she would present a cup of wine to the first of her new subjects. By the command of her father she obeyed: Autharis received the cup in his turn, and, in restoring it to the princess, he secretly touched her hand, and drew his own finger over his face and lips. In the evening, Theudelinda imparted to her nurse the indiscreet familiarity of the stranger, and was comforted by the assurance, that such boldness could proceed only from the king her husband, who, by his beauty and courage, appeared worthy of her love. The ambassadors were dismissed: no sooner did they reach the confines of Italy than Autharis, raising himself on his horse, darted his battle-axe against a tree with incomparable strength and dexterity. “Such,” said he to the astonished Bavarians, “such are the strokes of the king of the Lombards.” On the approach of a French army, Garribald and his daughter took refuge in the dominions of their ally; and the marriage was consummated in the palace of Verona. At the end of one year, it was dissolved by the death of Autharis: but the virtues of Theudelinda 51 had endeared her to the nation, and she was permitted to bestow, with her hand, the sceptre of the Italian kingdom.

49 (return) [ The epitaph of Droctulf (Paul, l. iii. c. 19) may be applied to many of his countrymen:— Terribilis visu facies, sed corda benignus Longaque robusto pectore barba fuit. The portraits of the old Lombards might still be seen in the palace of Monza, twelve miles from Milan, which had been founded or restored by Queen Theudelinda, (l. iv. 22, 23.) See Muratori, tom. i. disserta, xxiii. p. 300.]

50 (return) [ The story of Autharis and Theudelinda is related by Paul, l. iii. 29, 34; and any fragment of Bavarian antiquity excites the indefatigable diligence of the count de Buat, Hist. des Peuples de l’Europe, ton. xi. p. 595—635, tom. xii. p. 1-53.]

51 (return) [ Giannone (Istoria Civile de Napoli, tom. i. p. 263) has justly censured the impertinence of Boccaccio, (Gio. iii. Novel. 2,) who, without right, or truth, or pretence, has given the pious queen Theudelinda to the arms of a muleteer.]

From this fact, as well as from similar events, 52 it is certain that the Lombards possessed freedom to elect their sovereign, and sense to decline the frequent use of that dangerous privilege. The public revenue arose from the produce of land and the profits of justice. When the independent dukes agreed that Autharis should ascend the throne of his father, they endowed the regal office with a fair moiety of their respective domains. The proudest nobles aspired to the honors of servitude near the person of their prince: he rewarded the fidelity of his vassals by the precarious gift of pensions and benefices; and atoned for the injuries of war by the rich foundation of monasteries and churches. In peace a judge, a leader in war, he never usurped the powers of a sole and absolute legislator. The king of Italy convened the national assemblies in the palace, or more probably in the fields, of Pavia: his great council was composed of the persons most eminent by their birth and dignities; but the validity, as well as the execution, of their decrees depended on the approbation of the faithful people, the fortunate army of the Lombards. About fourscore years after the conquest of Italy, their traditional customs were transcribed in Teutonic Latin, 53 and ratified by the consent of the prince and people: some new regulations were introduced, more suitable to their present condition; the example of Rotharis was imitated by the wisest of his successors; and the laws of the Lombards have been esteemed the least imperfect of the Barbaric codes. 54 Secure by their courage in the possession of liberty, these rude and hasty legislators were incapable of balancing the powers of the constitution, or of discussing the nice theory of political government. Such crimes as threatened the life of the sovereign, or the safety of the state, were adjudged worthy of death; but their attention was principally confined to the defence of the person and property of the subject. According to the strange jurisprudence of the times, the guilt of blood might be redeemed by a fine; yet the high price of nine hundred pieces of gold declares a just sense of the value of a simple citizen. Less atrocious injuries, a wound, a fracture, a blow, an opprobrious word, were measured with scrupulous and almost ridiculous diligence; and the prudence of the legislator encouraged the ignoble practice of bartering honor and revenge for a pecuniary compensation. The ignorance of the Lombards in the state of Paganism or Christianity gave implicit credit to the malice and mischief of witchcraft, but the judges of the seventeenth century might have been instructed and confounded by the wisdom of Rotharis, who derides the absurd superstition, and protects the wretched victims of popular or judicial cruelty. 55 The same spirit of a legislator, superior to his age and country, may be ascribed to Luitprand, who condemns, while he tolerates, the impious and inveterate abuse of duels, 56 observing, from his own experience, that the juster cause had often been oppressed by successful violence. Whatever merit may be discovered in the laws of the Lombards, they are the genuine fruit of the reason of the Barbarians, who never admitted the bishops of Italy to a seat in their legislative councils. But the succession of their kings is marked with virtue and ability; the troubled series of their annals is adorned with fair intervals of peace, order, and domestic happiness; and the Italians enjoyed a milder and more equitable government, than any of the other kingdoms which had been founded on the ruins of the Western empire. 57

52 (return) [ Paul, l. iii. c. 16. The first dissertations of Muratori, and the first volume of Giannone’s history, may be consulted for the state of the kingdom of Italy.]

53 (return) [ The most accurate edition of the Laws of the Lombards is to be found in the Scriptores Rerum Italicarum, tom. i. part ii. p. 1—181, collated from the most ancient Mss. and illustrated by the critical notes of Muratori.]

54 (return) [ Montesquieu, Esprit des Loix, l. xxviii. c. 1. Les loix des Bourguignons sont assez judicieuses; celles de Rotharis et des autres princes Lombards le sont encore plus.]

55 (return) [ See Leges Rotharis, No. 379, p. 47. Striga is used as the name of a witch. It is of the purest classic origin, (Horat. epod. v. 20. Petron. c. 134;) and from the words of Petronius, (quae striges comederunt nervos tuos?) it may be inferred that the prejudice was of Italian rather than Barbaric extraction.]

56 (return) [ Quia incerti sumus de judicio Dei, et multos audivimus per pugnam sine justa causa suam causam perdere. Sed propter consuetudinom gentem nostram Langobardorum legem impiam vetare non possumus. See p. 74, No. 65, of the Laws of Luitprand, promulgated A.D. 724.]

57 (return) [ Read the history of Paul Warnefrid; particularly l. iii. c. 16. Baronius rejects the praise, which appears to contradict the invectives of Pope Gregory the Great; but Muratori (Annali d’ Italia, tom. v. p. 217) presumes to insinuate that the saint may have magnified the faults of Arians and enemies.]

Amidst the arms of the Lombards, and under the despotism of the Greeks, we again inquire into the fate of Rome, 58 which had reached, about the close of the sixth century, the lowest period of her depression. By the removal of the seat of empire, and the successive loss of the provinces, the sources of public and private opulence were exhausted: the lofty tree, under whose shade the nations of the earth had reposed, was deprived of its leaves and branches, and the sapless trunk was left to wither on the ground. The ministers of command, and the messengers of victory, no longer met on the Appian or Flaminian way; and the hostile approach of the Lombards was often felt, and continually feared. The inhabitants of a potent and peaceful capital, who visit without an anxious thought the garden of the adjacent country, will faintly picture in their fancy the distress of the Romans: they shut or opened their gates with a trembling hand, beheld from the walls the flames of their houses, and heard the lamentations of their brethren, who were coupled together like dogs, and dragged away into distant slavery beyond the sea and the mountains. Such incessant alarms must annihilate the pleasures and interrupt the labors of a rural life; and the Campagna of Rome was speedily reduced to the state of a dreary wilderness, in which the land is barren, the waters are impure, and the air is infectious. Curiosity and ambition no longer attracted the nations to the capital of the world: but, if chance or necessity directed the steps of a wandering stranger, he contemplated with horror the vacancy and solitude of the city, and might be tempted to ask, Where is the senate, and where are the people? In a season of excessive rains, the Tyber swelled above its banks, and rushed with irresistible violence into the valleys of the seven hills. A pestilential disease arose from the stagnation of the deluge, and so rapid was the contagion, that fourscore persons expired in an hour in the midst of a solemn procession, which implored the mercy of Heaven. 59 A society in which marriage is encouraged and industry prevails soon repairs the accidental losses of pestilence and war: but, as the far greater part of the Romans was condemned to hopeless indigence and celibacy, the depopulation was constant and visible, and the gloomy enthusiasts might expect the approaching failure of the human race. 60 Yet the number of citizens still exceeded the measure of subsistence: their precarious food was supplied from the harvests of Sicily or Egypt; and the frequent repetition of famine betrays the inattention of the emperor to a distant province. The edifices of Rome were exposed to the same ruin and decay: the mouldering fabrics were easily overthrown by inundations, tempests, and earthquakes: and the monks, who had occupied the most advantageous stations, exulted in their base triumph over the ruins of antiquity. 61 It is commonly believed, that Pope Gregory the First attacked the temples and mutilated the statues of the city; that, by the command of the Barbarian, the Palatine library was reduced to ashes, and that the history of Livy was the peculiar mark of his absurd and mischievous fanaticism. The writings of Gregory himself reveal his implacable aversion to the monuments of classic genius; and he points his severest censure against the profane learning of a bishop, who taught the art of grammar, studied the Latin poets, and pronounced with the same voice the praises of Jupiter and those of Christ. But the evidence of his destructive rage is doubtful and recent: the Temple of Peace, or the theatre of Marcellus, have been demolished by the slow operation of ages, and a formal proscription would have multiplied the copies of Virgil and Livy in the countries which were not subject to the ecclesiastical dictator. 62

58 (return) [ The passages of the homilies of Gregory, which represent the miserable state of the city and country, are transcribed in the Annals of Baronius, A.D. 590, No. 16, A.D. 595, No. 2, &c., &c.]

59 (return) [ The inundation and plague were reported by a deacon, whom his bishop, Gregory of Tours, had despatched to Rome for some relics The ingenious messenger embellished his tale and the river with a great dragon and a train of little serpents, (Greg. Turon. l. x. c. 1.)]

60 (return) [ Gregory of Rome (Dialog. l. ii. c. 15) relates a memorable prediction of St. Benedict. Roma a Gentilibus non exterminabitur sed tempestatibus, coruscis turbinibus ac terrae motu in semetipsa marces cet. Such a prophecy melts into true history, and becomes the evidence of the fact after which it was invented.]

61 (return) [ Quia in uno se ore cum Jovis laudibus, Christi laudes non capiunt, et quam grave nefandumque sit episcopis canere quod nec laico religioso conveniat, ipse considera, (l. ix. ep. 4.) The writings of Gregory himself attest his innocence of any classic taste or literature]

62 (return) [ Bayle, (Dictionnaire Critique, tom. ii. 598, 569,) in a very good article of Gregoire I., has quoted, for the buildings and statues, Platina in Gregorio I.; for the Palatine library, John of Salisbury, (de Nugis Curialium, l. ii. c. 26;) and for Livy, Antoninus of Florence: the oldest of the three lived in the xiith century.]

Like Thebes, or Babylon, or Carthage, the names of Rome might have been erased from the earth, if the city had not been animated by a vital principle, which again restored her to honor and dominion. A vague tradition was embraced, that two Jewish teachers, a tent-maker and a fisherman, had formerly been executed in the circus of Nero, and at the end of five hundred years, their genuine or fictitious relics were adored as the Palladium of Christian Rome. The pilgrims of the East and West resorted to the holy threshold; but the shrines of the apostles were guarded by miracles and invisible terrors; and it was not without fear that the pious Catholic approached the object of his worship. It was fatal to touch, it was dangerous to behold, the bodies of the saints; and those who, from the purest motives, presumed to disturb the repose of the sanctuary, were affrighted by visions, or punished with sudden death. The unreasonable request of an empress, who wished to deprive the Romans of their sacred treasure, the head of St. Paul, was rejected with the deepest abhorrence; and the pope asserted, most probably with truth, that a linen which had been sanctified in the neighborhood of his body, or the filings of his chain, which it was sometimes easy and sometimes impossible to obtain, possessed an equal degree of miraculous virtue. 63 But the power as well as virtue of the apostles resided with living energy in the breast of their successors; and the chair of St. Peter was filled under the reign of Maurice by the first and greatest of the name of Gregory. 64 His grandfather Felix had himself been pope, and as the bishops were already bound by the laws of celibacy, his consecration must have been preceded by the death of his wife. The parents of Gregory, Sylvia, and Gordian, were the noblest of the senate, and the most pious of the church of Rome; his female relations were numbered among the saints and virgins; and his own figure, with those of his father and mother, were represented near three hundred years in a family portrait, 65 which he offered to the monastery of St. Andrew. The design and coloring of this picture afford an honorable testimony that the art of painting was cultivated by the Italians of the sixth century; but the most abject ideas must be entertained of their taste and learning, since the epistles of Gregory, his sermons, and his dialogues, are the work of a man who was second in erudition to none of his contemporaries: 66 his birth and abilities had raised him to the office of præfect of the city, and he enjoyed the merit of renouncing the pomps and vanities of this world. His ample patrimony was dedicated to the foundation of seven monasteries, 67 one in Rome, 68 and six in Sicily; and it was the wish of Gregory that he might be unknown in this life, and glorious only in the next. Yet his devotion (and it might be sincere) pursued the path which would have been chosen by a crafty and ambitious statesman. The talents of Gregory, and the splendor which accompanied his retreat, rendered him dear and useful to the church; and implicit obedience has always been inculcated as the first duty of a monk. As soon as he had received the character of deacon, Gregory was sent to reside at the Byzantine court, the nuncio or minister of the apostolic see; and he boldly assumed, in the name of St. Peter, a tone of independent dignity, which would have been criminal and dangerous in the most illustrious layman of the empire. He returned to Rome with a just increase of reputation, and, after a short exercise of the monastic virtues, he was dragged from the cloister to the papal throne, by the unanimous voice of the clergy, the senate, and the people. He alone resisted, or seemed to resist, his own elevation; and his humble petition, that Maurice would be pleased to reject the choice of the Romans, could only serve to exalt his character in the eyes of the emperor and the public. When the fatal mandate was proclaimed, Gregory solicited the aid of some friendly merchants to convey him in a basket beyond the gates of Rome, and modestly concealed himself some days among the woods and mountains, till his retreat was discovered, as it is said, by a celestial light.

63 (return) [Gregor. l. iii. epist. 24, edict. 12, &c. From the epistles of Gregory, and the viiith volume of the Annals of Baronius, the pious reader may collect the particles of holy iron which were inserted in keys or crosses of gold, and distributed in Britain, Gaul, Spain, Africa, Constantinople, and Egypt. The pontifical smith who handled the file must have understood the miracles which it was in his own power to operate or withhold; a circumstance which abates the superstition of Gregory at the expense of his veracity.]

64 (return) [ Besides the epistles of Gregory himself, which are methodized by Dupin, (Bibliotheque Eccles. tom. v. p. 103—126,) we have three lives of the pope; the two first written in the viiith and ixth centuries, (de Triplici Vita St. Greg. Preface to the ivth volume of the Benedictine edition,) by the deacons Paul (p. 1—18) and John, (p. 19—188,) and containing much original, though doubtful, evidence; the third, a long and labored compilation by the Benedictine editors, (p. 199—305.) The annals of Baronius are a copious but partial history. His papal prejudices are tempered by the good sense of Fleury, (Hist. Eccles. tom. viii.,) and his chronology has been rectified by the criticism of Pagi and Muratori.]

65 (return) [ John the deacon has described them like an eye-witness, (l. iv. c. 83, 84;) and his description is illustrated by Angelo Rocca, a Roman antiquary, (St. Greg. Opera, tom. iv. p. 312—326;) who observes that some mosaics of the popes of the viith century are still preserved in the old churches of Rome, (p. 321—323) The same walls which represented Gregory’s family are now decorated with the martyrdom of St. Andrew, the noble contest of Dominichino and Guido.]

66 (return) [ Disciplinis vero liberalibus, hoc est grammatica, rhetorica, dialectica ita apuero est institutus, ut quamvis eo tempore florerent adhuc Romæ studia literarum, tamen nulli in urbe ipsa secundus putaretur. Paul. Diacon. in Vit. St. Gregor. c. 2.]

67 (return) [ The Benedictines (Vit. Greg. l. i. p. 205—208) labor to reduce the monasteries of Gregory within the rule of their own order; but, as the question is confessed to be doubtful, it is clear that these powerful monks are in the wrong. See Butler’s Lives of the Saints, vol. iii. p. 145; a work of merit: the sense and learning belong to the author—his prejudices are those of his profession.]

68 (return) [ Monasterium Gregorianum in ejusdem Beati Gregorii aedibus ad clivum Scauri prope ecclesiam SS. Johannis et Pauli in honorem St. Andreae, (John, in Vit. Greg. l. i. c. 6. Greg. l. vii. epist. 13.) This house and monastery were situate on the side of the Caelian hill which fronts the Palatine; they are now occupied by the Camaldoli: San Gregorio triumphs, and St. Andrew has retired to a small chapel Nardini, Roma Antica, l. iii. c. 6, p. 100. Descrizzione di Roma, tom. i. p. 442—446.]

The pontificate of Gregory the Great, which lasted thirteen years, six months, and ten days, is one of the most edifying periods of the history of the church. His virtues, and even his faults, a singular mixture of simplicity and cunning, of pride and humility, of sense and superstition, were happily suited to his station and to the temper of the times. In his rival, the patriarch of Constantinople, he condemned the anti-Christian title of universal bishop, which the successor of St. Peter was too haughty to concede, and too feeble to assume; and the ecclesiastical jurisdiction of Gregory was confined to the triple character of Bishop of Rome, Primate of Italy, and Apostle of the West. He frequently ascended the pulpit, and kindled, by his rude, though pathetic, eloquence, the congenial passions of his audience: the language of the Jewish prophets was interpreted and applied; and the minds of a people, depressed by their present calamities, were directed to the hopes and fears of the invisible world. His precepts and example defined the model of the Roman liturgy; 69 the distribution of the parishes, the calendar of the festivals, the order of processions, the service of the priests and deacons, the variety and change of sacerdotal garments. Till the last days of his life, he officiated in the canon of the mass, which continued above three hours: the Gregorian chant 70 has preserved the vocal and instrumental music of the theatre, and the rough voices of the Barbarians attempted to imitate the melody of the Roman school. 71 Experience had shown him the efficacy of these solemn and pompous rites, to soothe the distress, to confirm the faith, to mitigate the fierceness, and to dispel the dark enthusiasm of the vulgar, and he readily forgave their tendency to promote the reign of priesthood and superstition. The bishops of Italy and the adjacent islands acknowledged the Roman pontiff as their special metropolitan. Even the existence, the union, or the translation of episcopal seats was decided by his absolute discretion: and his successful inroads into the provinces of Greece, of Spain, and of Gaul, might countenance the more lofty pretensions of succeeding popes. He interposed to prevent the abuses of popular elections; his jealous care maintained the purity of faith and discipline; and the apostolic shepherd assiduously watched over the faith and discipline of the subordinate pastors. Under his reign, the Arians of Italy and Spain were reconciled to the Catholic church, and the conquest of Britain reflects less glory on the name of Caesar, than on that of Gregory the First. Instead of six legions, forty monks were embarked for that distant island, and the pontiff lamented the austere duties which forbade him to partake the perils of their spiritual warfare. In less than two years, he could announce to the archbishop of Alexandria, that they had baptized the king of Kent with ten thousand of his Anglo-Saxons, and that the Roman missionaries, like those of the primitive church, were armed only with spiritual and supernatural powers. The credulity or the prudence of Gregory was always disposed to confirm the truths of religion by the evidence of ghosts, miracles, and resurrections; 72 and posterity has paid to his memory the same tribute which he freely granted to the virtue of his own or the preceding generation. The celestial honors have been liberally bestowed by the authority of the popes, but Gregory is the last of their own order whom they have presumed to inscribe in the calendar of saints.

69 (return) [ The Lord’s Prayer consists of half a dozen lines; the Sacramentarius and Antiphonarius of Gregory fill 880 folio pages, (tom. iii. p. i. p. 1—880;) yet these only constitute a part of the Ordo Romanus, which Mabillon has illustrated and Fleury has abridged, (Hist. Eccles. tom. viii. p. 139—152.)]

70 (return) [ I learn from the Abbe Dobos, (Reflexions sur la Poesie et la Peinture, tom. iii. p. 174, 175,) that the simplicity of the Ambrosian chant was confined to four modes, while the more perfect harmony of the Gregorian comprised the eight modes or fifteen chords of the ancient music. He observes (p. 332) that the connoisseurs admire the preface and many passages of the Gregorian office.]

71 (return) [ John the deacon (in Vit. Greg. l. ii. c. 7) expresses the early contempt of the Italians for tramontane singing. Alpina scilicet corpora vocum suarum tonitruis altisone perstrepentia, susceptae modulationis dulcedinem proprie non resultant: quia bibuli gutturis barbara feritas dum inflexionibus et repercussionibus mitem nititur edere cantilenam, naturali quodam fragore, quasi plaustra per gradus confuse sonantia, rigidas voces jactat, &c. In the time of Charlemagne, the Franks, though with some reluctance, admitted the justice of the reproach. Muratori, Dissert. xxv.]

72 (return) [ A French critic (Petrus Gussanvillus, Opera, tom. ii. p. 105—112) has vindicated the right of Gregory to the entire nonsense of the Dialogues. Dupin (tom. v. p. 138) does not think that any one will vouch for the truth of all these miracles: I should like to know how many of them he believed himself.]

Their temporal power insensibly arose from the calamities of the times: and the Roman bishops, who have deluged Europe and Asia with blood, were compelled to reign as the ministers of charity and peace. I. The church of Rome, as it has been formerly observed, was endowed with ample possessions in Italy, Sicily, and the more distant provinces; and her agents, who were commonly sub-deacons, had acquired a civil, and even criminal, jurisdiction over their tenants and husbandmen. The successor of St. Peter administered his patrimony with the temper of a vigilant and moderate landlord; 73 and the epistles of Gregory are filled with salutary instructions to abstain from doubtful or vexatious lawsuits; to preserve the integrity of weights and measures; to grant every reasonable delay; and to reduce the capitation of the slaves of the glebe, who purchased the right of marriage by the payment of an arbitrary fine. 74 The rent or the produce of these estates was transported to the mouth of the Tyber, at the risk and expense of the pope: in the use of wealth he acted like a faithful steward of the church and the poor, and liberally applied to their wants the inexhaustible resources of abstinence and order. The voluminous account of his receipts and disbursements was kept above three hundred years in the Lateran, as the model of Christian economy. On the four great festivals, he divided their quarterly allowance to the clergy, to his domestics, to the monasteries, the churches, the places of burial, the almshouses, and the hospitals of Rome, and the rest of the diocese. On the first day of every month, he distributed to the poor, according to the season, their stated portion of corn, wine, cheese, vegetables, oil, fish, fresh provisions, clothes, and money; and his treasurers were continually summoned to satisfy, in his name, the extraordinary demands of indigence and merit. The instant distress of the sick and helpless, of strangers and pilgrims, was relieved by the bounty of each day, and of every hour; nor would the pontiff indulge himself in a frugal repast, till he had sent the dishes from his own table to some objects deserving of his compassion. The misery of the times had reduced the nobles and matrons of Rome to accept, without a blush, the benevolence of the church: three thousand virgins received their food and raiment from the hand of their benefactor; and many bishops of Italy escaped from the Barbarians to the hospitable threshold of the Vatican. Gregory might justly be styled the Father of his Country; and such was the extreme sensibility of his conscience, that, for the death of a beggar who had perished in the streets, he interdicted himself during several days from the exercise of sacerdotal functions. II. The misfortunes of Rome involved the apostolical pastor in the business of peace and war; and it might be doubtful to himself, whether piety or ambition prompted him to supply the place of his absent sovereign. Gregory awakened the emperor from a long slumber; exposed the guilt or incapacity of the exarch and his inferior ministers; complained that the veterans were withdrawn from Rome for the defence of Spoleto; encouraged the Italians to guard their cities and altars; and condescended, in the crisis of danger, to name the tribunes, and to direct the operations, of the provincial troops. But the martial spirit of the pope was checked by the scruples of humanity and religion: the imposition of tribute, though it was employed in the Italian war, he freely condemned as odious and oppressive; whilst he protected, against the Imperial edicts, the pious cowardice of the soldiers who deserted a military for a monastic life. If we may credit his own declarations, it would have been easy for Gregory to exterminate the Lombards by their domestic factions, without leaving a king, a duke, or a count, to save that unfortunate nation from the vengeance of their foes. As a Christian bishop, he preferred the salutary offices of peace; his mediation appeased the tumult of arms: but he was too conscious of the arts of the Greeks, and the passions of the Lombards, to engage his sacred promise for the observance of the truce. Disappointed in the hope of a general and lasting treaty, he presumed to save his country without the consent of the emperor or the exarch. The sword of the enemy was suspended over Rome; it was averted by the mild eloquence and seasonable gifts of the pontiff, who commanded the respect of heretics and Barbarians. The merits of Gregory were treated by the Byzantine court with reproach and insult; but in the attachment of a grateful people, he found the purest reward of a citizen, and the best right of a sovereign. 75

73 (return) [ Baronius is unwilling to expatiate on the care of the patrimonies, lest he should betray that they consisted not of kingdoms, but farms. The French writers, the Benedictine editors, (tom. iv. l. iii. p. 272, &c.,) and Fleury, (tom. viii. p. 29, &c.,) are not afraid of entering into these humble, though useful, details; and the humanity of Fleury dwells on the social virtues of Gregory.]

74 (return) [ I much suspect that this pecuniary fine on the marriages of villains produced the famous, and often fabulous right, de cuissage, de marquette, &c. With the consent of her husband, a handsome bride might commute the payment in the arms of a young landlord, and the mutual favor might afford a precedent of local rather than legal tyranny]

75 (return) [ The temporal reign of Gregory I. is ably exposed by Sigonius in the first book, de Regno Italiae. See his works, tom. ii. p. 44—75]