The History of The Decline and Fall of the Roman Empire
Edward Gibbon

Part 7 out of 15

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

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

[Footnote *: .... Agathius.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Part IV.

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

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

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

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

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

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

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

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

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

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

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

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

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

The chapter, however, is imperfect. (Edit. Neibuhr, p. 290.) -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part I.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part II.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The silence or ambiguity of the laws was supplied by the
occasional edicts ^! of those magistrates who were invested with
the honors of the state. ^33 This ancient prerogative of the
Roman kings was transferred, in their respective offices, to the
consuls and dictators, the censors and praetors; and a similar
right was assumed by the tribunes of the people, the ediles, and
the proconsuls. At Rome, and in the provinces, the duties of the
subject, and the intentions of the governor, were proclaimed; and
the civil jurisprudence was reformed by the annual edicts of the
supreme judge, the praetor of the city. ^* As soon as he ascended
his tribunal, he announced by the voice of the crier, and
afterwards inscribed on a white wall, the rules which he proposed
to follow in the decision of doubtful cases, and the relief which
his equity would afford from the precise rigor of ancient
statutes. A principle of discretion more congenial to monarchy
was introduced into the republic: the art of respecting the name,
and eluding the efficacy, of the laws, was improved by successive
praetors; subtleties and fictions were invented to defeat the
plainest meaning of the Decemvirs, and where the end was
salutary, the means were frequently absurd. The secret or
probable wish of the dead was suffered to prevail over the order
of succession and the forms of testaments; and the claimant, who
was excluded from the character of heir, accepted with equal
pleasure from an indulgent praetor the possession of the goods of
his late kinsman or benefactor. In the redress of private
wrongs, compensations and fines were substituted to the obsolete
rigor of the Twelve Tables; time and space were annihilated by
fanciful suppositions; and the plea of youth, or fraud, or
violence, annulled the obligation, or excused the performance, of
an inconvenient contract. A jurisdiction thus vague and
arbitrary was exposed to the most dangerous abuse: the substance,
as well as the form, of justice were often sacrificed to the
prejudices of virtue, the bias of laudable affection, and the
grosser seductions of interest or resentment. But the errors or
vices of each praetor expired with his annual office; such maxims
alone as had been approved by reason and practice were copied by
succeeding judges; the rule of proceeding was defined by the
solution of new cases; and the temptations of injustice were
removed by the Cornelian law, which compelled the praetor of the
year to adhere to the spirit and letter of his first
proclamation. ^34 It was reserved for the curiosity and learning
of Adrian, to accomplish the design which had been conceived by
the genius of Caesar; and the praetorship of Salvius Julian, an
eminent lawyer, was immortalized by the composition of the
Perpetual Edict. This well-digested code was ratified by the
emperor and the senate; the long divorce of law and equity was at
length reconciled; and, instead of the Twelve Tables, the
perpetual edict was fixed as the invariable standard of civil
jurisprudence. ^35

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

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

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

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

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

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

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

From Augustus to Trajan, the modest Caesars were content to
promulgate their edicts in the various characters of a Roman
magistrate; ^* and, in the decrees of the senate, the epistles
and orations of the prince were respectfully inserted. Adrian
^36 appears to have been the first who assumed, without disguise,
the plenitude of legislative power. And this innovation, so
agreeable to his active mind, was countenanced by the patience of
the times, and his long absence from the seat of government. The
same policy was embraced by succeeding monarchs, and, according
to the harsh metaphor of Tertullian, "the gloomy and intricate
forest of ancient laws was cleared away by the axe of royal
mandates and constitutions." ^37 During four centuries, from
Adrian to Justinian the public and private jurisprudence was
moulded by the will of the sovereign; and few institutions,
either human or divine, were permitted to stand on their former
basis. The origin of Imperial legislation was concealed by the
darkness of ages and the terrors of armed despotism; and a double
tiction was propagated by the servility, or perhaps the
ignorance, of the civilians, who basked in the sunshine of the
Roman and Byzantine courts. 1. To the prayer of the ancient
Caesars, the people or the senate had sometimes granted a
personal exemption from the obligation and penalty of particular
statutes; and each indulgence was an act of jurisdiction
exercised by the republic over the first of her citizens. His
humble privilege was at length transformed into the prerogative
of a tyrant; and the Latin expression of "released from the laws"
^38 was supposed to exalt the emperor above all human restraints,
and to leave his conscience and reason as the sacred measure of
his conduct. 2. A similar dependence was implied in the decrees
of the senate, which, in every reign, defined the titles and
powers of an elective magistrate. But it was not before the
ideas, and even the language, of the Romans had been corrupted,
that a royal law, ^39 and an irrevocable gift of the people, were
created by the fancy of Ulpian, or more probably of Tribonian
himself; ^40 and the origin of Imperial power, though false in
fact, and slavish in its consequence, was supported on a
principle of freedom and justice. "The pleasure of the emperor
has the vigor and effect of law, since the Roman people, by the
royal law, have transferred to their prince the full extent of
their own power and sovereignty." ^41 The will of a single man,
of a child perhaps, was allowed to prevail over the wisdom of
ages and the inclinations of millions; and the degenerate Greeks
were proud to declare, that in his hands alone the arbitrary
exercise of legislation could be safely deposited. "What
interest or passion," exclaims Theophilus in the court of
Justinian, "can reach the calm and sublime elevation of the
monarch? He is already master of the lives and fortunes of his
subjects; and those who have incurred his displeasure are already
numbered with the dead." ^42 Disdaining the language of flattery,
the historian may confess, that in questions of private
jurisprudence, the absolute sovereign of a great empire can
seldom be influenced by any personal considerations. Virtue, or
even reason, will suggest to his impartial mind, that he is the
guardian of peace and equity, and that the interest of society is
inseparably connected with his own. Under the weakest and most
vicious reign, the seat of justice was filled by the wisdom and
integrity of Papinian and Ulpian; ^43 and the purest materials of
the Code and Pandects are inscribed with the names of Caracalla
and his ministers. ^44 The tyrant of Rome was sometimes the
benefactor of the provinces. A dagger terminated the crimes of
Domitian; but the prudence of Nerva confirmed his acts, which, in
the joy of their deliverance, had been rescinded by an indignant
senate. ^45 Yet in the rescripts, ^46 replies to the
consultations of the magistrates, the wisest of princes might be
deceived by a partial exposition of the case. And this abuse,
which placed their hasty decisions on the same level with mature
and deliberate acts of legislation, was ineffectually condemned
by the sense and example of Trajan. The rescripts of the
emperor, his grants and decrees, his edicts and pragmatic
sanctions, were subscribed in purple ink, ^47 and transmitted to
the provinces as general or special laws, which the magistrates
were bound to execute, and the people to obey. But as their
number continually multiplied, the rule of obedience became each
day more doubtful and obscure, till the will of the sovereign was
fixed and ascertained in the Gregorian, the Hermogenian, and the
Theodosian codes. ^* The two first, of which some fragments have
escaped, were framed by two private lawyers, to preserve the
constitutions of the Pagan emperors from Adrian to Constantine.
The third, which is still extant, was digested in sixteen books
by the order of the younger Theodosius to consecrate the laws of
the Christian princes from Constantine to his own reign. But the
three codes obtained an equal authority in the tribunals; and any
act which was not included in the sacred deposit might be
disregarded by the judge as epurious or obsolete. ^48

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

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

Note: This is again an error which Gibbon shares with
Heineccius, and the generality of authors. It arises from having
mistaken the insignificant edict of Hadrian, inserted in the Code
of Justinian, (lib. vi, tit. xxiii. c. 11,) for the first
constitutio principis, without attending to the fact, that the
Pandects contain so many constitutions of the emperors, from
Julius Caesar, (see l. i. Digest 29, l) M. Hugo justly observes,
that the acta of Sylla, approved by the senate, were the same
thing with the constitutions of those who after him usurped the
sovereign power. Moreover, we find that Pliny, and other ancient
authors, report a multitude of rescripts of the emperors from the
time of Augustus. See Hugo, Hist. du Droit Romain, vol. ii. p.
24-27. - W.]

[Footnote 37: Totam illam veterem et squalentem sylvam legum
novis principalium rescriptorum et edictorum securibus truncatis
et caeditis; (Apologet. c. 4, p. 50, edit. Havercamp.) He
proceeds to praise the recent firmness of Severus, who repealed
the useless or pernicious laws, without any regard to their age
or authority.]

[Footnote 38: The constitutional style of Legibus Solutus is
misinterpreted by the art or ignorance of Dion Cassius, (tom. i.
l. liii. p. 713.) On this occasion, his editor, Reimer, joins the
universal censure which freedom and criticism have pronounced
against that slavish historian.]
[Footnote 39: The word (Lex Regia) was still more recent than the
thing. The slaves of Commodus or Caracalla would have started at
the name of royalty.
Note: Yet a century before, Domitian was called not only by
Martial but even in public documents, Dominus et Deus Noster.
Sueton. Domit. cap. 13. Hugo. - W.]

[Footnote 40: See Gravina (Opp. p. 501 - 512) and Beaufort,
(Republique Romaine, tom. i. p. 255 - 274.) He has made a proper
use of two dissertations by John Frederic Gronovius and Noodt,
both translated, with valuable notes, by Barbeyrac, 2 vols. in
12mo. 1731.]

[Footnote 41: Institut. l. i. tit. ii. No. 6. Pandect. l. i.
tit. iv. leg. 1. Cod. Justinian, l. i. tit. xvii. leg. 1, No. 7.
In his Antiquities and Elements, Heineccius has amply treated de
constitutionibus principum, which are illustrated by Godefroy
(Comment. ad Cod. Theodos. l. i. tit. i. ii. iii.) and Gravina,
(p. 87 - 90.)

Note: Gaius asserts that the Imperial edict or rescript has
and always had, the force of law, because the Imperial authority
rests upon law. Constitutio principis est, quod imperator decreto
vel edicto, vel epistola constituit, nee unquam dubitatum, quin
id legis, vicem obtineat, cum ipse imperator per legem imperium
accipiat. Gaius, 6 Instit. i. 2. - M.]
[Footnote 42: Theophilus, in Paraphras. Graec. Institut. p. 33,
34, edit. Reitz For his person, time, writings, see the
Theophilus of J. H. Mylius, Excurs. iii. p. 1034 - 1073.]

[Footnote 43: There is more envy than reason in the complaint of
Macrinus (Jul. Capitolin. c. 13:) Nefas esse leges videri Commodi
et Caracalla at hominum imperitorum voluntates. Commodus was
made a Divus by Severus, (Dodwell, Praelect. viii. p. 324, 325.)
Yet he occurs only twice in the Pandects.]

[Footnote 44: Of Antoninus Caracalla alone 200 constitutions are


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