The History of The Decline and Fall of the Roman Empire
by
Edward Gibbon
Part 9 out of 15
viii. leg. 41, No. 1.)]
[Footnote 138: The heredium of the first Romans is defined by
Varro, (de Re Rustica, l. i. c. ii. p. 141, c. x. p. 160, 161,
edit. Gesner,) and clouded by Pliny's declamation, (Hist. Natur.
xviii. 2.) A just and learned comment is given in the
Administration des Terres chez les Romains, (p. 12 - 66.)
Note: On the duo jugera, compare Niebuhr, vol. i. p. 337. -
M.]
[Footnote 139: The res mancipi is explained from faint and remote
lights by Ulpian (Fragment. tit. xviii. p. 618, 619) and
Bynkershoek, (Opp tom. i. p. 306 - 315.) The definition is
somewhat arbitrary; and as none except myself have assigned a
reason, I am diffident of my own.]
[Footnote 140: From this short prescription, Hume (Essays, vol.
i. p. 423) infers that there could not then be more order and
settlement in Italy than now amongst the Tartars. By the
civilian of his adversary Wallace, he is reproached, and not
without reason, for overlooking the conditions, (Institut. l. ii.
tit. vi.)
Note: Gibbon acknowledges, in the former note, the obscurity
of his views with regard to the res mancipi. The interpreters,
who preceded him, are not agreed on this point, one of the most
difficult in the ancient Roman law. The conclusions of Hume, of
which the author here speaks, are grounded on false assumptions.
Gibbon had conceived very inaccurate notions of Property among
the Romans, and those of many authors in the present day are not
less erroneous. We think it right, in this place, to develop the
system of property among the Romans, as the result of the study
of the extant original authorities on the ancient law, and as it
has been demonstrated, recognized, and adopted by the most
learned expositors of the Roman law. Besides the authorities
formerly known, such as the Fragments of Ulpian, t. xix. and t.
i. 16. Theoph. Paraph. i. 5, 4, may be consulted the Institutes
of Gaius, i. 54, and ii. 40, et seq.
The Roman laws protected all property acquired in a lawful
manner. They imposed on those who had invaded it, the obligation
of making restitution and reparation of all damage caused by that
invasion; they punished it moreover, in many cases, by a
pecuniary fine. But they did not always grant a recovery against
the third person, who had become bona fide possessed of the
property. He who had obtained possession of a thing belonging to
another, knowing nothing of the prior rights of that person,
maintained the possession. The law had expressly determined
those cases, in which it permitted property to be reclaimed from
an innocent possessor. In these cases possession had the
characters of absolute proprietorship, called mancipium, jus
Quiritium. To possess this right, it was not sufficient to have
entered into possession of the thing in any manner; the
acquisition was bound to have that character of publicity, which
was given by the observation of solemn forms, prescribed by the
laws, or the uninterrupted exercise of proprietorship during a
certain time: the Roman citizen alone could acquire this
proprietorship. Every other kind of possession, which might be
named imperfect proprietorship, was called "in bonis habere." It
was not till after the time of Cicero that the general name of
Dominium was given to all proprietorship.
It was then the publicity which constituted the distinctive
character of absolute dominion. This publicity was grounded on
the mode of acquisition, which the moderns have called Civil,
(Modi adquirendi Civiles.) These modes of acquisition were,
1. Mancipium or mancipatio, which was nothing but the solemn
delivering over of the thing in the presence of a determinate
number of witnesses and a public officer; it was from this
probably that proprietorship was named,
2. In jure cessio, which was a solemn delivering over before
the praetor.
3. Adjudicatio, made by a judge, in a case of partition.
4. Lex, which comprehended modes of acquiring in particular
cases determined by law; probably the law of the xii. tables; for
instance, the sub corona emptio and the legatum.
5. Usna, called afterwards usacapio, and by the moderns
prescription.
This was only a year for movables; two years for things not
movable. Its primary object was altogether different from that
of prescription in the present day. It was originally introduced
in order to transform the simple possession of a thing (in bonis
habere) into Roman proprietorship. The public and uninterrupted
possession of a thing, enjoyed for the space of one or two years,
was sufficient to make known to the inhabitants of the city of
Rome to whom the thing belonged. This last mode of acquisition
completed the system of civil acquisitions. by legalizing. as it
were, every other kind of acquisition which was not conferred,
from the commencement, by the Jus Quiritium. V. Ulpian. Fragm.
i. 16. Gaius, ii. 14. We believe, according to Gaius, 43, that
this usucaption was extended to the case where a thing had been
acquired from a person not the real proprietor; and that
according to the time prescribed, it gave to the possessor the
Roman proprietorship. But this does not appear to have been the
original design of this Institution. Caeterum etiam earum rerum
usucapio nobis competit, quae non a domino nobis tradita fuerint,
si modo eas bona fide acceperimus Gaius, l ii. 43.
As to things of smaller value, or those which it was
difficult to distinguish from each other, the solemnities of
which we speak were not requisite to obtain legal proprietorship.
In this case simple delivery was sufficient.
In proportion to the aggrandizement of the Republic, this
latter principle became more important from the increase of the
commerce and wealth of the state. It was necessary to know what
were those things of which absolute property might be acquired by
simple delivery, and what, on the contrary, those, the
acquisition of which must be sanctioned by these solemnities.
This question was necessarily to be decided by a general rule;
and it is this rule which establishes the distinction between res
mancipi and nec mancipi, a distinction about which the opinions
of modern civilians differ so much that there are above ten
conflicting systems on the subject. The system which accords best
with a sound interpretation of the Roman laws, is that proposed
by M. Trekel of Hamburg, and still further developed by M. Hugo,
who has extracted it in the Magazine of Civil Law, vol. ii. p. 7.
This is the system now almost universally adopted. Res mancipi
(by contraction for mancipii) were things of which the absolute
property (Jus Quiritium) might be acquired only by the
solemnities mentioned above, at least by that of mancipation,
which was, without doubt, the most easy and the most usual.
Gaius, ii. 25. As for other things, the acquisition of which
was not subject to these forms, in order to confer absolute
right, they were called res nec mancipi. See Ulpian, Fragm. xix.
1. 3, 7.
Ulpian and Varro enumerate the different kinds of res
mancipi. Their enumerations do not quite agree; and various
methods of reconciling them have been attempted. The authority
of Ulpian, however, who wrote as a civilian, ought to have the
greater weight on this subject.
But why are these things alone res mancipi? This is one of
the questions which have been most frequently agitated, and on
which the opinions of civilians are most divided. M. Hugo has
resolved it in the most natural and satisfactory manner. "All
things which were easily known individually, which were of great
value, with which the Romans were acquainted, and which they
highly appreciated, were res mancipi. Of old mancipation or some
other solemn form was required for the acquisition of these
things, an account of their importance. Mancipation served to
prove their acquisition, because they were easily distinguished
one from the other." On this great historical discussion consult
the Magazine of Civil Law by M. Hugo, vol. ii. p. 37, 38; the
dissertation of M. J. M. Zachariae, de Rebus Mancipi et nec
Mancipi Conjecturae, p. 11. Lipsiae, 1807; the History of Civil
Law by M. Hugo; and my Institutiones Juris Romani Privati p. 108,
110.
As a general rule, it may be said that all things are res
nec mancipi; the res mancipi are the exception to this principle.
The praetors changed the system of property by allowing a
person, who had a thing in bonis, the right to recover before the
prescribed term of usucaption had conferred absolute
proprietorship. (Pauliana in rem actio.) Justinian went still
further, in times when there was no longer any distinction
between a Roman citizen and a stranger. He granted the right of
recovering all things which had been acquired, whether by what
were called civil or natural modes of acquisition, Cod. l. vii.
t. 25, 31. And he so altered the theory of Gaius in his
Institutes, ii. 1, that no trace remains of the doctrine taught
by that civilian. - W.]
[Footnote 141: See the Institutes (l. i. tit. iv. v.) and the
Pandects, (l. vii.) Noodt has composed a learned and distinct
treatise de Usufructu, (Opp. tom. i. p. 387 - 478.)]
[Footnote 142: The questions de Servitutibus are discussed in the
Institutes (l. ii. tit. iii.) and Pandects, (l. viii.) Cicero
(pro Murena, c. 9) and Lactantius (Institut. Divin. l. i. c. i.)
affect to laugh at the insignificant doctrine, de aqua de pluvia
arcenda, &c. Yet it might be of frequent use among litigious
neighbors, both in town and country.]
The personal title of the first proprietor must be
determined by his death: but the possession, without any
appearance of change, is peaceably continued in his children, the
associates of his toil, and the partners of his wealth. This
natural inheritance has been protected by the legislators of
every climate and age, and the father is encouraged to persevere
in slow and distant improvements, by the tender hope, that a long
posterity will enjoy the fruits of his labor. The principle of
hereditary succession is universal; but the order has been
variously established by convenience or caprice, by the spirit of
national institutions, or by some partial example which was
originally decided by fraud or violence. The jurisprudence of
the Romans appear to have deviated from the inequality of nature
much less than the Jewish, ^143 the Athenian, ^144 or the English
institutions. ^145 On the death of a citizen, all his
descendants, unless they were already freed from his paternal
power, were called to the inheritance of his possessions. The
insolent prerogative of primogeniture was unknown; the two sexes
were placed on a just level; all the sons and daughters were
entitled to an equal portion of the patrimonial estate; and if
any of the sons had been intercepted by a premature death, his
person was represented, and his share was divided, by his
surviving children. On the failure of the direct line, the right
of succession must diverge to the collateral branches. The
degrees of kindred ^146 are numbered by the civilians, ascending
from the last possessor to a common parent, and descending from
the common parent to the next heir: my father stands in the first
degree, my brother in the second, his children in the third, and
the remainder of the series may be conceived by a fancy, or
pictured in a genealogical table. In this computation, a
distinction was made, essential to the laws and even the
constitution of Rome; the agnats, or persons connected by a line
of males, were called, as they stood in the nearest degree, to an
equal partition; but a female was incapable of transmitting any
legal claims; and the cognats of every rank, without excepting
the dear relation of a mother and a son, were disinherited by the
Twelve Tables, as strangers and aliens. Among the Romans agens
or lineage was united by a common name and domestic rites; the
various cognomens or surnames of Scipio, or Marcellus,
distinguished from each other the subordinate branches or
families of the Cornelian or Claudian race: the default of the
agnats, of the same surname, was supplied by the larger
denomination of gentiles; and the vigilance of the laws
maintained, in the same name, the perpetual descent of religion
and property. A similar principle dictated the Voconian law,
^147 which abolished the right of female inheritance. As long as
virgins were given or sold in marriage, the adoption of the wife
extinguished the hopes of the daughter. But the equal succession
of independent matrons supported their pride and luxury, and
might transport into a foreign house the riches of their fathers.
While the maxims of Cato ^148 were revered, they tended to
perpetuate in each family a just and virtuous mediocrity: till
female blandishments insensibly triumphed; and every salutary
restraint was lost in the dissolute greatness of the republic.
The rigor of the decemvirs was tempered by the equity of the
praetors. Their edicts restored and emancipated posthumous
children to the rights of nature; and upon the failure of the
agnats, they preferred the blood of the cognats to the name of
the gentiles whose title and character were insensibly covered
with oblivion. The reciprocal inheritance of mothers and sons
was established in the Tertullian and Orphitian decrees by the
humanity of the senate. A new and more impartial order was
introduced by the Novels of Justinian, who affected to revive the
jurisprudence of the Twelve Tables. The lines of masculine and
female kindred were confounded: the descending, ascending, and
collateral series was accurately defined; and each degree,
according tot he proximity of blood and affection, succeeded to
the vacant possessions of a Roman citizen. ^149
[Footnote 143: Among the patriarchs, the first-born enjoyed a
mystic and spiritual primogeniture, (Genesis, xxv. 31.) In the
land of Canaan, he was entitled to a double portion of
inheritance, (Deuteronomy, xxi. 17, with Le Clerc's judicious
Commentary.)]
[Footnote 144: At Athens, the sons were equal; but the poor
daughters were endowed at the discretion of their brothers. See
the pleadings of Isaeus, (in the viith volume of the Greek
Orators,) illustrated by the version and comment of Sir William
Jones, a scholar, a lawyer, and a man of genius.]
[Footnote 145: In England, the eldest son also inherits all the
land; a law, says the orthodox Judge Blackstone, (Commentaries on
the Laws of England, vol. ii. p. 215,) unjust only in the opinion
of younger brothers. It may be of some political use in
sharpening their industry.]
[Footnote 146: Blackstone's Tables (vol. ii. p. 202) represent
and compare the decrees of the civil with those of the canon and
common law. A separate tract of Julius Paulus, de gradibus et
affinibus, is inserted or abridged in the Pandects, (l. xxxviii.
tit. x.) In the viith degrees he computes (No. 18) 1024 persons.]
[Footnote 147: The Voconian law was enacted in the year of Rome
584. The younger Scipio, who was then 17 years of age,
(Frenshemius, Supplement. Livian. xlvi. 40,) found an occasion of
exercising his generosity to his mother, sisters, &c. (Polybius,
tom. ii. l. xxxi. p. 1453 - 1464, edit Gronov., a domestic
witness.)]
[Footnote 148: Legem Voconiam (Ernesti, Clavis Ciceroniana) magna
voce bonis lateribus (at lxv. years of age) suasissem, says old
Cato, (de Senectute, c. 5,) Aulus Gellius (vii. 13, xvii. 6) has
saved some passages.]
[Footnote 149: See the law of succession in the Institutes of
Caius, (l. ii. tit. viii. p. 130 - 144,) and Justinian, (l. iii.
tit. i. - vi., with the Greek version of Theophilus, p. 515 -
575, 588 - 600,) the Pandects, (l. xxxviii. tit. vi. - xvii.,)
the Code, (l. vi. tit. lv. - lx.,) and the Novels, (cxviii.)]
The order of succession is regulated by nature, or at least
by the general and permanent reason of the lawgiver: but this
order is frequently violated by the arbitrary and partial wills,
which prolong the dominion of the testator beyond the grave. ^150
In the simple state of society, this last use or abuse of the
right of property is seldom indulged: it was introduced at Athens
by the laws of Solon; and the private testaments of the father of
a family are authorized by the Twelve Tables. Before the time of
the decemvirs, ^151 a Roman citizen exposed his wishes and
motives to the assembly of the thirty curiae or parishes, and the
general law of inheritance was suspended by an occasional act of
the legislature. After the permission of the decemvirs, each
private lawgiver promulgated his verbal or written testament in
the presence of five citizens, who represented the five classes
of the Roman people; a sixth witness attested their concurrence;
a seventh weighed the copper money, which was paid by an
imaginary purchaser; and the estate was emancipated by a
fictitious sale and immediate release. This singular ceremony,
^152 which excited the wonder of the Greeks, was still practised
in the age of Severus; but the praetors had already approved a
more simple testament, for which they required the seals and
signatures of seven witnesses, free from all legal exception, and
purposely summoned for the execution of that important act. A
domestic monarch, who reigned over the lives and fortunes of his
children, might distribute their respective shares according to
the degrees of their merit or his affection; his arbitrary
displeasure chastised an unworthy son by the loss of his
inheritance, and the mortifying preference of a stranger. But
the experience of unnatural parents recommended some limitations
of their testamentary powers. A son, or, by the laws of
Justinian, even a daughter, could no longer be disinherited by
their silence: they were compelled to name the criminal, and to
specify the offence; and the justice of the emperor enumerated
the sole causes that could justify such a violation of the first
principles of nature and society. ^153 Unless a legitimate
portion, a fourth part, had been reserved for the children, they
were entitled to institute an action or complaint of inofficious
testament; to suppose that their father's understanding was
impaired by sickness or age; and respectfully to appeal from his
rigorous sentence to the deliberate wisdom of the magistrate. In
the Roman jurisprudence, an essential distinction was admitted
between the inheritance and the legacies. The heirs who
succeeded to the entire unity, or to any of the twelve fractions
of the substance of the testator, represented his civil and
religious character, asserted his rights, fulfilled his
obligations, and discharged the gifts of friendship or
liberality, which his last will had bequeathed under the name of
legacies. But as the imprudence or prodigality of a dying man
might exhaust the inheritance, and leave only risk and labor to
his successor, he was empowered to retain the Falcidian portion;
to deduct, before the payment of the legacies, a clear fourth for
his own emolument. A reasonable time was allowed to examine the
proportion between the debts and the estate, to decide whether he
should accept or refuse the testament; and if he used the benefit
of an inventory, the demands of the creditors could not exceed
the valuation of the effects. The last will of a citizen might
be altered during his life, or rescinded after his death: the
persons whom he named might die before him, or reject the
inheritance, or be exposed to some legal disqualification. In
the contemplation of these events, he was permitted to substitute
second and third heirs, to replace each other according to the
order of the testament; and the incapacity of a madman or an
infant to bequeath his property might be supplied by a similar
substitution. ^154 But the power of the testator expired with the
acceptance of the testament: each Roman of mature age and
discretion acquired the absolute dominion of his inheritance, and
the simplicity of the civil law was never clouded by the long and
intricate entails which confine the happiness and freedom of
unborn generations.
[Footnote 150: That succession was the rule, testament the
exception, is proved by Taylor, (Elements of Civil Law, p. 519 -
527, (a learned, rambling, spirited writer. In the iid and iiid
books, the method of the Institutes is doubtless preposterous;
and the Chancellor Daguesseau (Oeuvres, tom. i. p. 275) wishes
his countryman Domat in the place of Tribonian. Yet covenants
before successions is not surely the natural order of civil
laws.]
[Footnote 151: Prior examples of testaments are perhaps fabulous.
At Athens a childless father only could make a will, (Plutarch,
in Solone, tom. i. p. 164. See Isaeus and Jones.)]
[Footnote 152: The testament of Augustus is specified by
Suetonius, (in August, c. 101, in Neron. c. 4,) who may be
studied as a code of Roman antiquities. Plutarch (Opuscul. tom.
ii. p. 976) is surprised. The language of Ulpian (Fragment. tit.
xx. p. 627, edit. Schulting) is almost too exclusive - solum in
usu est.]
[Footnote 153: Justinian (Novell. cxv. No. 3, 4) enumerates only
the public and private crimes, for which a son might likewise
disinherit his father.
Note: Gibbon has singular notions on the provisions of
Novell. cxv. 3, 4, which probably he did not clearly understand.
- W]
[Footnote 154: The substitutions of fidei-commissaires of the
modern civil law is a feudal idea grafted on the Roman
jurisprudence, and bears scarcely any resemblance to the ancient
fidei-commissa, (Institutions du Droit Francois, tom. i. p. 347 -
383. Denissart, Decisions de Jurisprudence, tom. iv. p. 577 -
604.) They were stretched to the fourth degree by an abuse of the
clixth Novel; a partial, perplexed, declamatory law.]
Conquest and the formalities of law established the use of
codicils. If a Roman was surprised by death in a remote province
of the empire, he addressed a short epistle to his legitimate or
testamentary heir; who fulfilled with honor, or neglected with
impunity, this last request, which the judges before the age of
Augustus were not authorized to enforce. A codicil might be
expressed in any mode, or in any language; but the subscription
of five witnesses must declare that it was the genuine
composition of the author. His intention, however laudable, was
sometimes illegal; and the invention of fidei-commissa, or
trusts, arose form the struggle between natural justice and
positive jurisprudence. A stranger of Greece or Africa might be
the friend or benefactor of a childless Roman, but none, except a
fellow-citizen, could act as his heir. The Voconian law, which
abolished female succession, restrained the legacy or inheritance
of a woman to the sum of one hundred thousand sesterces; ^155 and
an only daughter was condemned almost as an alien in her father's
house. The zeal of friendship, and parental affection, suggested
a liberal artifice: a qualified citizen was named in the
testament, with a prayer or injunction that he would restore the
inheritance to the person for whom it was truly intended. Various
was the conduct of the trustees in this painful situation: they
had sworn to observe the laws of their country, but honor
prompted them to violate their oath; and if they preferred their
interest under the mask of patriotism, they forfeited the esteem
of every virtuous mind. The declaration of Augustus relieved
their doubts, gave a legal sanction to confidential testaments
and codicils, and gently unravelled the forms and restraints of
the republican jurisprudence. ^156 But as the new practice of
trusts degenerated into some abuse, the trustee was enabled, by
the Trebellian and Pegasian decrees, to reserve one fourth of the
estate, or to transfer on the head of the real heir all the debts
and actions of the succession. The interpretation of testaments
was strict and literal; but the language of trusts and codicils
was delivered from the minute and technical accuracy of the
civilians. ^157
[Footnote 155: Dion Cassius (tom. ii. l. lvi. p. 814, with
Reimar's Notes) specifies in Greek money the sum of 25,000
drachms.]
[Footnote 156: The revolutions of the Roman laws of inheritance
are finely, though sometimes fancifully, deduced by Montesquieu,
(Esprit des Loix, l. xxvii.)]
[Footnote 157: Of the civil jurisprudence of successions,
testaments, codicils, legacies, and trusts, the principles are
ascertained in the Institutes of Caius, (l. ii. tit. ii. - ix. p.
91 - 144,) Justinian, (l. ii. tit. x. - xxv.,) and Theophilus,
(p. 328 - 514;) and the immense detail occupies twelve books
(xxviii. - xxxix.) of the Pandects.]
III. The general duties of mankind are imposed by their
public and private relations: but their specific obligations to
each other can only be the effect of, 1. a promise, 2. a benefit,
or 3. an injury: and when these obligations are ratified by law,
the interested party may compel the performance by a judicial
action. On this principle, the civilians of every country have
erected a similar jurisprudence, the fair conclusion of universal
reason and justice. ^158
[Footnote 158: The Institutes of Caius, (l. ii. tit. ix. x. p.
144 - 214,) of Justinian, (l. iii. tit. xiv. - xxx. l. iv. tit.
i. - vi.,) and of Theophilus, (p. 616 - 837,) distinguish four
sorts of obligations - aut re, aut verbis, aut literis aut
consensu: but I confess myself partial to my own division.
Note: It is not at all applicable to the Roman system of
contracts, even if I were allowed to be good. - M.]
Chapter XLIV: Idea Of The Roman Jurisprudence.
Part VI.
1. The goddess of faith (of human and social faith) was
worshipped, not only in her temples, but in the lives of the
Romans; and if that nation was deficient in the more amiable
qualities of benevolence and generosity, they astonished the
Greeks by their sincere and simple performance of the most
burdensome engagements. ^159 Yet among the same people, according
to the rigid maxims of the patricians and decemvirs, a naked
pact, a promise, or even an oath, did not create any civil
obligation, unless it was confirmed by the legal form of a
stipulation. Whatever might be the etymology of the Latin word,
it conveyed the idea of a firm and irrevocable contract, which
was always expressed in the mode of a question and answer. Do
you promise to pay me one hundred pieces of gold? was the solemn
interrogation of Seius. I do promise, was the reply of
Sempronius. The friends of Sempronius, who answered for his
ability and inclination, might be separately sued at the option
of Seius; and the benefit of partition, or order of reciprocal
actions, insensibly deviated from the strict theory of
stipulation. The most cautious and deliberate consent was justly
required to sustain the validity of a gratuitous promise; and the
citizen who might have obtained a legal security, incurred the
suspicion of fraud, and paid the forfeit of his neglect. But the
ingenuity of the civilians successfully labored to convert simple
engagements into the form of solemn stipulations. The praetors,
as the guardians of social faith, admitted every rational
evidence of a voluntary and deliberate act, which in their
tribunal produced an equitable obligation, and for which they
gave an action and a remedy. ^160
[Footnote 159: How much is the cool, rational evidence of
Polybius (l. vi. p. 693, l. xxxi. p. 1459, 1460) superior to
vague, indiscriminate applause - omnium maxime et praecipue fidem
coluit, (A. Gellius, xx. l.)]
[Footnote 160: The Jus Praetorium de Pactis et Transactionibus is
a separate and satisfactory treatise of Gerard Noodt, (Opp. tom.
i. p. 483 - 564.) And I will here observe, that the universities
of Holland and Brandenburg, in the beginning of the present
century, appear to have studied the civil law on the most just
and liberal principles.
Note: Simple agreements (pacta) formed as valid an
obligation as a solemn contract. Only an action, or the right to
a direct judicial prosecution, was not permitted in every case of
compact. In all other respects, the judge was bound to maintain
an agreement made by pactum. The stipulation was a form common
to every kind of agreement, by which the right of action was
given to this. - W.]
2. The obligations of the second class, as they were
contracted by the delivery of a thing, are marked by the
civilians with the epithet of real. ^161 A grateful return is due
to the author of a benefit; and whoever is intrusted with the
property of another, has bound himself to the sacred duty of
restitution. In the case of a friendly loan, the merit of
generosity is on the side of the lender only; in a deposit, on
the side of the receiver; but in a pledge, and the rest of the
selfish commerce of ordinary life, the benefit is compensated by
an equivalent, and the obligation to restore is variously
modified by the nature of the transaction. The Latin language
very happily expresses the fundamental difference between the
commodatum and the mutuum, which our poverty is reduced to
confound under the vague and common appellation of a loan. In
the former, the borrower was obliged to restore the same
individual thing with which he had been accommodated for the
temporary supply of his wants; in the latter, it was destined for
his use and consumption, and he discharged this mutual
engagement, by substituting the same specific value according to
a just estimation of number, of weight, and of measure. In the
contract of sale, the absolute dominion is transferred to the
purchaser, and he repays the benefit with an adequate sum of gold
or silver, the price and universal standard of all earthly
possessions. The obligation of another contract, that of
location, is of a more complicated kind. Lands or houses, labor
or talents, may be hired for a definite term; at the expiration
of the time, the thing itself must be restored to the owner, with
an additional reward for the beneficial occupation and
employment. In these lucrative contracts, to which may be added
those of partnership and commissions, the civilians sometimes
imagine the delivery of the object, and sometimes presume the
consent of the parties. The substantial pledge has been refined
into the invisible rights of a mortgage or hypotheca; and the
agreement of sale, for a certain price, imputes, from that
moment, the chances of gain or loss to the account of the
purchaser. It may be fairly supposed, that every man will obey
the dictates of his interest; and if he accepts the benefit, he
is obliged to sustain the expense, of the transaction. In this
boundless subject, the historian will observe the location of
land and money, the rent of the one and the interest of the
other, as they materially affect the prosperity of agriculture
and commerce. The landlord was often obliged to advance the
stock and instruments of husbandry, and to content himself with a
partition of the fruits. If the feeble tenant was oppressed by
accident, contagion, or hostile violence, he claimed a
proportionable relief from the equity of the laws: five years
were the customary term, and no solid or costly improvements
could be expected from a farmer, who, at each moment might be
ejected by the sale of the estate. ^162 Usury, ^163 the
inveterate grievance of the city, had been discouraged by the
Twelve Tables, ^164 and abolished by the clamors of the people.
It was revived by their wants and idleness, tolerated by the
discretion of the praetors, and finally determined by the Code of
Justinian. Persons of illustrious rank were confined to the
moderate profit of four per cent.; six was pronounced to be the
ordinary and legal standard of interest; eight was allowed for
the convenience of manufactures and merchants; twelve was granted
to nautical insurance, which the wiser ancients had not attempted
to define; but, except in this perilous adventure, the practice
of exorbitant usury was severely restrained. ^165 The most simple
interest was condemned by the clergy of the East and West; ^166
but the sense of mutual benefit, which had triumphed over the law
of the republic, has resisted with equal firmness the decrees of
the church, and even the prejudices of mankind. ^167
[Footnote 161: The nice and various subject of contracts by
consent is spread over four books (xvii. - xx.) of the Pandects,
and is one of the parts best deserving of the attention of an
English student.
Note: This is erroneously called "benefits." Gibbon
enumerates various kinds of contracts, of which some alone are
properly called benefits. - W.]
[Footnote 162: The covenants of rent are defined in the Pandects
(l. xix.) and the Code, (l. iv. tit. lxv.) The quinquennium, or
term of five years, appears to have been a custom rather than a
law; but in France all leases of land were determined in nine
years. This limitation was removed only in the year 1775,
(Encyclopedie Methodique, tom. i. de la Jurisprudence, p. 668,
669;) and I am sorry to observe that it yet prevails in the
beauteous and happy country where I am permitted to reside.]
[Footnote 163: I might implicitly acquiesce in the sense and
learning of the three books of G. Noodt, de foenore et usuris.
(Opp. tom. i. p. 175 - 268.) The interpretation of the asses or
centesimoe usuroe at twelve, the unciarioe at one per cent., is
maintained by the best critics and civilians: Noodt, (l. ii. c.
2, p. 207,) Gravina, (Opp. p. 205, &c., 210,) Heineccius,
(Antiquitat. ad Institut. l. iii. tit. xv.,) Montesquieu, (Esprit
des Loix, l. xxii. c. 22, tom. ii. p. 36. Defense de l'Esprit
des Loix, tom. iii. p. 478, &c.,) and above all, John Frederic
Gronovius (de Pecunia Veteri, l. iii. c. 13, p. 213 - 227, and
his three Antexegeses, p. 455 - 655, the founder, or at least the
champion, of this probable opinion; which is, however, perplexed
with some difficulties.]
[Footnote 164: Primo xii. Tabulis sancitum est ne quis unciario
foenore amplius exerceret, (Tacit. Annal. vi. 16.) Pour peu (says
Montesquieu, Esprit des Loix, l. xxii. 22) qu'on soit verse dans
l'histoire de Rome, on verra qu'une pareille loi ne devoit pas
etre l'ouvrage des decemvirs. Was Tacitus ignorant - or stupid?
But the wiser and more virtuous patricians might sacrifice their
avarice to their ambition, and might attempt to check the odious
practice by such interest as no lender would accept, and such
penalties as no debtor would incur.
Note: The real nature of the foenus unciarium has been
proved; it amounted in a year of twelve months to ten per cent.
See, in the Magazine for Civil Law, by M. Hugo, vol. v. p. 180,
184, an article of M. Schrader, following up the conjectures of
Niebuhr, Hist. Rom. tom. ii. p. 431. - W.
Compare a very clear account of this question in the
appendix to Mr. Travers Twiss's Epitome of Niebuhr, vol. ii. p.
257. - M.]
[Footnote 165: Justinian has not condescended to give usury a
place in his Institutes; but the necessary rules and restrictions
are inserted in the Pandects (l. xxii. tit. i. ii.) and the Code,
(l. iv. tit. xxxii. xxxiii.)]
[Footnote 166: The Fathers are unanimous, (Barbeyrac, Morale des
Peres, p. 144. &c.:) Cyprian, Lactantius, Basil, Chrysostom, (see
his frivolous arguments in Noodt, l. i. c. 7, p. 188,) Gregory of
Nyssa, Ambrose, Jerom, Augustin, and a host of councils and
casuists.]
[Footnote 167: Cato, Seneca, Plutarch, have loudly condemned the
practice or abuse of usury. According to the etymology of
foenus, the principal is supposed to generate the interest: a
breed of barren metal, exclaims Shakespeare - and the stage is
the echo of the public voice.]
3. Nature and society impose the strict obligation of
repairing an injury; and the sufferer by private injustice
acquires a personal right and a legitimate action. If the
property of another be intrusted to our care, the requisite
degree of care may rise and fall according to the benefit which
we derive from such temporary possession; we are seldom made
responsible for inevitable accident, but the consequences of a
voluntary fault must always be imputed to the author. ^168 A
Roman pursued and recovered his stolen goods by a civil action of
theft; they might pass through a succession of pure and innocent
hands, but nothing less than a prescription of thirty years could
extinguish his original claim. They were restored by the
sentence of the praetor, and the injury was compensated by
double, or threefold, or even quadruple damages, as the deed had
been perpetrated by secret fraud or open rapine, as the robber
had been surprised in the fact, or detected by a subsequent
research. The Aquilian law ^169 defended the living property of
a citizen, his slaves and cattle, from the stroke of malice or
negligence: the highest price was allowed that could be ascribed
to the domestic animal at any moment of the year preceding his
death; a similar latitude of thirty days was granted on the
destruction of any other valuable effects. A personal injury is
blunted or sharpened by the manners of the times and the
sensibility of the individual: the pain or the disgrace of a word
or blow cannot easily be appreciated by a pecuniary equivalent.
The rude jurisprudence of the decemvirs had confounded all hasty
insults, which did not amount to the fracture of a limb, by
condemning the aggressor to the common penalty of twenty-five
asses. But the same denomination of money was reduced, in three
centuries, from a pound to the weight of half an ounce: and the
insolence of a wealthy Roman indulged himself in the cheap
amusement of breaking and satisfying the law of the twelve
tables. Veratius ran through the streets striking on the face
the inoffensive passengers, and his attendant purse-bearer
immediately silenced their clamors by the legal tender of
twenty-five pieces of copper, about the value of one shilling.
^170 The equity of the praetors examined and estimated the
distinct merits of each particular complaint. In the
adjudication of civil damages, the magistrate assumed a right to
consider the various circumstances of time and place, of age and
dignity, which may aggravate the shame and sufferings of the
injured person; but if he admitted the idea of a fine, a
punishment, an example, he invaded the province, though, perhaps,
he supplied the defects, of the criminal law.
[Footnote 168: Sir William Jones has given an ingenious and
rational Essay on the law of Bailment, (London, 1781, p. 127, in
8vo.) He is perhaps the only lawyer equally conversant with the
year-books of Westminster, the Commentaries of Ulpian, the Attic
pleadings of Isaeus, and the sentences of Arabian and Persian
cadhis.]
[Footnote 169: Noodt (Opp. tom. i. p. 137 - 172) has composed a
separate treatise, ad Legem Aquilian, (Pandect. l. ix. tit. ii.)]
[Footnote 170: Aulus Gellius (Noct. Attic. xx. i.) borrowed this
story from the Commentaries of Q. Labeo on the xii. tables.]
The execution of the Alban dictator, who was dismembered by
eight horses, is represented by Livy as the first and the fast
instance of Roman cruelty in the punishment of the most atrocious
crimes. ^171 But this act of justice, or revenge, was inflicted
on a foreign enemy in the heat of victory, and at the command of
a single man. The twelve tables afford a more decisive proof of
the national spirit, since they were framed by the wisest of the
senate, and accepted by the free voices of the people; yet these
laws, like the statutes of Draco, ^172 are written in characters
of blood. ^173 They approve the inhuman and unequal principle of
retaliation; and the forfeit of an eye for an eye, a tooth for a
tooth, a limb for a limb, is rigorously exacted, unless the
offender can redeem his pardon by a fine of three hundred pounds
of copper. The decemvirs distributed with much liberality the
slighter chastisements of flagellation and servitude; and nine
crimes of a very different complexion are adjudged worthy of
death.
1. Any act of treason against the state, or of
correspondence with the public enemy. The mode of execution was
painful and ignominious: the head of the degenerate Roman was
shrouded in a veil, his hands were tied behind his back, and
after he had been scourged by the lictor, he was suspended in the
midst of the forum on a cross, or inauspicious tree.
2. Nocturnal meetings in the city; whatever might be the
pretence, of pleasure, or religion, or the public good.
3. The murder of a citizen; for which the common feelings of
mankind demand the blood of the murderer. Poison is still more
odious than the sword or dagger; and we are surprised to
discover, in two flagitious events, how early such subtle
wickedness had infected the simplicity of the republic, and the
chaste virtues of the Roman matrons. ^174 The parricide, who
violated the duties of nature and gratitude, was cast into the
river or the sea, enclosed in a sack; and a cock, a viper, a dog,
and a monkey, were successively added, as the most suitable
companions. ^175 Italy produces no monkeys; but the want could
never be felt, till the middle of the sixth century first
revealed the guilt of a parricide. ^176
4. The malice of an incendiary. After the previous ceremony
of whipping, he himself was delivered to the flames; and in this
example alone our reason is tempted to applaud the justice of
retaliation.
5. Judicial perjury. The corrupt or malicious witness was
thrown headlong from the Tarpeian rock, to expiate his falsehood,
which was rendered still more fatal by the severity of the penal
laws, and the deficiency of written evidence.
6. The corruption of a judge, who accepted bribes to
pronounce an iniquitous sentence.
7. Libels and satires, whose rude strains sometimes
disturbed the peace of an illiterate city. The author was beaten
with clubs, a worthy chastisement, but it is not certain that he
was left to expire under the blows of the executioner. ^177
8. The nocturnal mischief of damaging or destroying a
neighbor's corn. The criminal was suspended as a grateful victim
to Ceres. But the sylvan deities were less implacable, and the
extirpation of a more valuable tree was compensated by the
moderate fine of twenty-five pounds of copper.
9. Magical incantations; which had power, in the opinion of
the Latin shepherds, to exhaust the strength of an enemy, to
extinguish his life, and to remove from their seats his
deep-rooted plantations.
The cruelty of the twelve tables against insolvent debtors still
remains to be told; and I shall dare to prefer the literal sense
of antiquity to the specious refinements of modern criticism.
^178 ^* After the judicial proof or confession of the debt,
thirty days of grace were allowed before a Roman was delivered
into the power of his fellow- citizen. In this private prison,
twelve ounces of rice were his daily food; he might be bound with
a chain of fifteen pounds weight; and his misery was thrice
exposed in the market place, to solicit the compassion of his
friends and countrymen. At the expiration of sixty days, the
debt was discharged by the loss of liberty or life; the insolvent
debtor was either put to death, or sold in foreign slavery beyond
the Tyber: but, if several creditors were alike obstinate and
unrelenting, they might legally dismember his body, and satiate
their revenge by this horrid partition. The advocates for this
savage law have insisted, that it must strongly operate in
deterring idleness and fraud from contracting debts which they
were unable to discharge; but experience would dissipate this
salutary terror, by proving that no creditor could be found to
exact this unprofitable penalty of life or limb. As the manners
of Rome were insensibly polished, the criminal code of the
decemvirs was abolished by the humanity of accusers, witnesses,
and judges; and impunity became the consequence of immoderate
rigor. The Porcian and Valerian laws prohibited the magistrates
from inflicting on a free citizen any capital, or even corporal,
punishment; and the obsolete statutes of blood were artfully, and
perhaps truly, ascribed to the spirit, not of patrician, but of
regal, tyranny.
[Footnote 171: The narrative of Livy (i. 28) is weighty and
solemn. At tu, Albane, maneres, is a harsh reflection, unworthy
of Virgil's humanity, (Aeneid, viii. 643.) Heyne, with his usual
good taste, observes that the subject was too horrid for the
shield of Aencas, (tom. iii. p. 229.)]
[Footnote 172: The age of Draco (Olympiad xxxix. l) is fixed by
Sir John Marsham (Canon Chronicus, p. 593 - 596) and Corsini,
(Fasti Attici, tom. iii. p. 62.) For his laws, see the writers on
the government of Athens, Sigonius, Meursius, Potter, &c.]
[Footnote 173: The viith, de delictis, of the xii. tables is
delineated by Gravina, (Opp. p. 292, 293, with a commentary, p.
214 - 230.) Aulus Gellius (xx. 1) and the Collatio Legum
Mosaicarum et Romanarum afford much original information.]
[Footnote 174: Livy mentions two remarkable and flagitious aeras,
of 3000 persons accused, and of 190 noble matrons convicted, of
the crime of poisoning, (xl. 43, viii. 18.) Mr. Hume
discriminates the ages of private and public virtue, (Essays,
vol. i. p. 22, 23.) I would rather say that such ebullitions of
mischief (as in France in the year 1680) are accidents and
prodigies which leave no marks on the manners of a nation.]
[Footnote 175: The xii. tables and Cicero (pro Roscio Amerino, c.
25, 26) are content with the sack; Seneca (Excerpt. Controvers. v
4) adorns it with serpents; Juvenal pities the guiltless monkey
(innoxia simia - 156.) Adrian (apud Dositheum Magistrum, l. iii.
c. p. 874 - 876, with Schulting's Note,) Modestinus, (Pandect.
xlviii. tit. ix. leg. 9,) Constantine, (Cod. l. ix. tit. xvii.,)
and Justinian, (Institut. l. iv. tit. xviii.,) enumerate all the
companions of the parricide. But this fanciful execution was
simplified in practice. Hodie tamen viv exuruntur vel ad bestias
dantur, (Paul. Sentent. Recept. l. v. tit. xxiv p. 512, edit.
Schulting.)]
[Footnote 176: The first parricide at Rome was L. Ostius, after
the second Punic war, (Plutarch, in Romulo, tom. i. p. 54.)
During the Cimbric, P. Malleolus was guilty of the first
matricide, (Liv. Epitom. l. lxviii.)]
[Footnote 177: Horace talks of the formidine fustis, (l. ii.
epist. ii. 154,) but Cicero (de Republica, l. iv. apud Augustin.
de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393,
edit. Olivet) affirms that the decemvirs made libels a capital
offence: cum perpaucas res capite sanxisent - perpaucus!]
[Footnote 178: Bynkershoek (Observat. Juris Rom. l. i. c. 1, in
Opp. tom. i. p. 9, 10, 11) labors to prove that the creditors
divided not the body, but the price, of the insolvent debtor.
Yet his interpretation is one perpetual harsh metaphor; nor can
he surmount the Roman authorities of Quintilian, Caecilius,
Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi.]
[Footnote *: Hugo (Histoire du Droit Romain, tom. i. p. 234)
concurs with Gibbon See Niebuhr, vol. ii. p. 313. - M.]
In the absence of penal laws, and the insufficiency of civil
actions, the peace and justice of the city were imperfectly
maintained by the private jurisdiction of the citizens. The
malefactors who replenish our jails are the outcasts of society,
and the crimes for which they suffer may be commonly ascribed to
ignorance, poverty, and brutal appetite. For the perpetration of
similar enormities, a vile plebeian might claim and abuse the
sacred character of a member of the republic: but, on the proof
or suspicion of guilt, the slave, or the stranger, was nailed to
a cross; and this strict and summary justice might be exercised
without restraint over the greatest part of the populace of Rome.
Each family contained a domestic tribunal, which was not
confined, like that of the praetor, to the cognizance of external
actions: virtuous principles and habits were inculcated by the
discipline of education; and the Roman father was accountable to
the state for the manners of his children, since he disposed,
without appeal, of their life, their liberty, and their
inheritance. In some pressing emergencies, the citizen was
authorized to avenge his private or public wrongs. The consent
of the Jewish, the Athenian, and the Roman laws approved the
slaughter of the nocturnal thief; though in open daylight a
robber could not be slain without some previous evidence of
danger and complaint. Whoever surprised an adulterer in his
nuptial bed might freely exercise his revenge; ^179 the most
bloody and wanton outrage was excused by the provocation; ^180
nor was it before the reign of Augustus that the husband was
reduced to weigh the rank of the offender, or that the parent was
condemned to sacrifice his daughter with her guilty seducer.
After the expulsion of the kings, the ambitious Roman, who should
dare to assume their title or imitate their tyranny, was devoted
to the infernal gods: each of his fellow-citizens was armed with
the sword of justice; and the act of Brutus, however repugnant to
gratitude or prudence, had been already sanctified by the
judgment of his country. ^181 The barbarous practice of wearing
arms in the midst of peace, ^182 and the bloody maxims of honor,
were unknown to the Romans; and, during the two purest ages, from
the establishment of equal freedom to the end of the Punic wars,
the city was never disturbed by sedition, and rarely polluted
with atrocious crimes. The failure of penal laws was more
sensibly felt, when every vice was inflamed by faction at home
and dominion abroad. In the time of Cicero, each private citizen
enjoyed the privilege of anarchy; each minister of the republic
was exalted to the temptations of regal power, and their virtues
are entitled to the warmest praise, as the spontaneous fruits of
nature or philosophy. After a triennial indulgence of lust,
rapine, and cruelty, Verres, the tyrant of Sicily, could only be
sued for the pecuniary restitution of three hundred thousand
pounds sterling; and such was the temper of the laws, the judges,
and perhaps the accuser himself, ^183 that, on refunding a
thirteenth part of his plunder, Verres could retire to an easy
and luxurious exile. ^184
[Footnote 179: The first speech of Lysias (Reiske, Orator. Graec.
tom. v. p. 2 - 48) is in defence of a husband who had killed the
adulterer. The rights of husbands and fathers at Rome and Athens
are discussed with much learning by Dr. Taylor, (Lectiones
Lysiacae, c. xi. in Reiske, tom. vi. p. 301 - 308.)]
[Footnote 180: See Casaubon ad Athenaeum, l. i. c. 5, p. 19.
Percurrent raphanique mugilesque, (Catull. p. 41, 42, edit.
Vossian.) Hunc mugilis intrat, (Juvenal. Satir. x. 317.) Hunc
perminxere calones, (Horat l. i. Satir. ii. 44.) Familiae
stuprandum dedit . . fraudi non fuit, (Val. Maxim. l. vi. c. l,
No. 13.)]
[Footnote 181: This law is noticed by Livy (ii. 8) and Plutarch,
(in Publiccla, tom. i. p. 187,) and it fully justifies the public
opinion on the death of Caesar which Suetonius could publish
under the Imperial government. Jure caesus existimatur, (in
Julio, c. 76.) Read the letters that passed between Cicero and
Matius a few months after the ides of March (ad Fam. xi. 27,
28.)]
[Footnote 182: Thucydid. l. i. c. 6 The historian who considers
this circumstance as the test of civilization, would disdain the
barbarism of a European court]
[Footnote 183: He first rated at millies (800,000l.) the damages
of Sicily, (Divinatio in Caecilium, c. 5,) which he afterwards
reduced to quadringenties, (320,000l. - 1 Actio in Verrem, c.
18,) and was finally content with tricies, (24,000l.) Plutarch
(in Ciceron. tom. iii. p. 1584) has not dissembled the popular
suspicion and report.]
[Footnote 184: Verres lived near thirty years after his trial,
till the second triumvirate, when he was proscribed by the taste
of Mark Antony for the sake of his Corinthian plate, (Plin. Hist.
Natur. xxxiv. 3.)]
The first imperfect attempt to restore the proportion of
crimes and punishments was made by the dictator Sylla, who, in
the midst of his sanguinary triumph, aspired to restrain the
license, rather than to oppress the liberty, of the Romans. He
gloried in the arbitrary proscription of four thousand seven
hundred citizens. ^185 But, in the character of a legislator, he
respected the prejudices of the times; and, instead of
pronouncing a sentence of death against the robber or assassin,
the general who betrayed an army, or the magistrate who ruined a
province, Sylla was content to aggravate the pecuniary damages by
the penalty of exile, or, in more constitutional language, by the
interdiction of fire and water. The Cornelian, and afterwards
the Pompeian and Julian, laws introduced a new system of criminal
jurisprudence; ^186 and the emperors, from Augustus to Justinian,
disguised their increasing rigor under the names of the original
authors. But the invention and frequent use of extraordinary
pains proceeded from the desire to extend and conceal the
progress of despotism. In the condemnation of illustrious
Romans, the senate was always prepared to confound, at the will
of their masters, the judicial and legislative powers. It was
the duty of the governors to maintain the peace of their
province, by the arbitrary and rigid administration of justice;
the freedom of the city evaporated in the extent of empire, and
the Spanish malefactor, who claimed the privilege of a Roman, was
elevated by the command of Galba on a fairer and more lofty
cross. ^187 Occasional rescripts issued from the throne to decide
the questions which, by their novelty or importance, appeared to
surpass the authority and discernment of a proconsul.
Transportation and beheading were reserved for honorable persons;
meaner criminals were either hanged, or burnt, or buried in the
mines, or exposed to the wild beasts of the amphitheatre. Armed
robbers were pursued and extirpated as the enemies of society;
the driving away horses or cattle was made a capital offence;
^188 but simple theft was uniformly considered as a mere civil
and private injury. The degrees of guilt, and the modes of
punishment, were too often determined by the discretion of the
rulers, and the subject was left in ignorance of the legal danger
which he might incur by every action of his life.
[Footnote 185: Such is the number assigned by Valer'us Maximus,
(l. ix. c. 2, No. 1,) Florus (iv. 21) distinguishes 2000 senators
and knights. Appian (de Bell. Civil. l. i. c. 95, tom. ii. p.
133, edit. Schweighauser) more accurately computes forty victims
of the senatorian rank, and 1600 of the equestrian census or
order.]
[Footnote 186: For the penal laws (Leges Corneliae, Pompeiae,
Julae, of Sylla, Pompey, and the Caesars) see the sentences of
Paulus, (l. iv. tit. xviii. - xxx. p. 497 - 528, edit.
Schulting,) the Gregorian Code, (Fragment. l. xix. p. 705, 706,
in Schulting,) the Collatio Legum Mosaicarum et Romanarum, (tit.
i. - xv.,) the Theodosian Code, (l. ix.,) the Code of Justinian,
(l. ix.,) the Pandects, (xlviii.,) the Institutes, (l. iv. tit.
xviii.,) and the Greek version of Theophilus, (p. 917 - 926.)]
[Footnote 187: It was a guardian who had poisoned his ward. The
crime was atrocious: yet the punishment is reckoned by Suetonius
(c. 9) among the acts in which Galba showed himself acer,
vehemens, et in delictis coercendis immodicus.]
[Footnote 188: The abactores or abigeatores, who drove one horse,
or two mares or oxen, or five hogs, or ten goats, were subject to
capital punishment, (Paul, Sentent. Recept. l. iv. tit. xviii. p.
497, 498.) Hadrian, (ad Concil. Baeticae,) most severe where the
offence was most frequent, condemns the criminals, ad gladium,
ludi damnationem, (Ulpian, de Officio Proconsulis, l. viii. in
Collatione Legum Mosaic. et Rom. tit. xi p. 235.)]
A sin, a vice, a crime, are the objects of theology, ethics,
and jurisprudence. Whenever their judgments agree, they
corroborate each other; but, as often as they differ, a prudent
legislator appreciates the guilt and punishment according to the
measure of social injury. On this principle, the most daring
attack on the life and property of a private citizen is judged
less atrocious than the crime of treason or rebellion, which
invades the majesty of the republic: the obsequious civilians
unanimously pronounced, that the republic is contained in the
person of its chief; and the edge of the Julian law was sharpened
by the incessant diligence of the emperors. The licentious
commerce of the sexes may be tolerated as an impulse of nature,
or forbidden as a source of disorder and corruption; but the
fame, the fortunes, the family of the husband, are seriously
injured by the adultery of the wife. The wisdom of Augustus,
after curbing the freedom of revenge, applied to this domestic
offence the animadversion of the laws: and the guilty parties,
after the payment of heavy forfeitures and fines, were condemned
to long or perpetual exile in two separate islands. ^189 Religion
pronounces an equal censure against the infidelity of the
husband; but, as it is not accompanied by the same civil effects,
the wife was never permitted to vindicate her wrongs; ^190 and
the distinction of simple or double adultery, so familiar and so
important in the canon law, is unknown to the jurisprudence of
the Code and the Pandects. I touch with reluctance, and despatch
with impatience, a more odious vice, of which modesty rejects the
name, and nature abominates the idea. The primitive Romans were
infected by the example of the Etruscans ^191 and Greeks: ^192
and in the mad abuse of prosperity and power, every pleasure that
is innocent was deemed insipid; and the Scatinian law, ^193 which
had been extorted by an act of violence, was insensibly abolished
by the lapse of time and the multitude of criminals. By this
law, the rape, perhaps the seduction, of an ingenuous youth, was
compensated, as a personal injury, by the poor damages of ten
thousand sesterces, or fourscore pounds; the ravisher might be
slain by the resistance or revenge of chastity; and I wish to
believe, that at Rome, as in Athens, the voluntary and effeminate
deserter of his sex was degraded from the honors and the rights
of a citizen. ^194 But the practice of vice was not discouraged
by the severity of opinion: the indelible stain of manhood was
confounded with the more venial transgressions of fornication and
adultery, nor was the licentious lover exposed to the same
dishonor which he impressed on the male or female partner of his
guilt. From Catullus to Juvenal, ^195 the poets accuse and
celebrate the degeneracy of the times; and the reformation of
manners was feebly attempted by the reason and authority of the
civilians till the most virtuous of the Caesars proscribed the
sin against nature as a crime against society. ^196
[Footnote 189: Till the publication of the Julius Paulus of
Schulting, (l. ii. tit. xxvi. p. 317 - 323,) it was affirmed and
believed that the Julian laws punished adultery with death; and
the mistake arose from the fraud or error of Tribonian. Yet
Lipsius had suspected the truth from the narratives of Tacitus,
(Annal. ii. 50, iii. 24, iv. 42,) and even from the practice of
Augustus, who distinguished the treasonable frailties of his
female kindred.]
[Footnote 190: In cases of adultery, Severus confined to the
husband the right of public accusation, (Cod. Justinian, l. ix.
tit. ix. leg. 1.) Nor is this privilege unjust - so different are
the effects of male or female infidelity.]
[Footnote 191: Timon (l. i.) and Theopompus (l. xliii. apud
Athenaeum, l. xii. p. 517) describe the luxury and lust of the
Etruscans. About the same period (A. U. C. 445) the Roman youth
studied in Etruria, (liv. ix. 36.)]
[Footnote 192: The Persians had been corrupted in the same
school, (Herodot. l. i. c. 135.) A curious dissertation might be
formed on the introduction of paederasty after the time of Homer,
its progress among the Greeks of Asia and Europe, the vehemence
of their passions, and the thin device of virtue and friendship
which amused the philosophers of Athens. But scelera ostendi
oportet dum puniuntur, abscondi flagitia.]
[Footnote 193: The name, the date, and the provisions of this law
are equally doubtful, (Gravina, Opp. p. 432, 433. Heineccius,
Hist. Jur. Rom. No. 108. Ernesti, Clav. Ciceron. in Indice
Legum.) But I will observe that the nefanda Venus of the honest
German is styled aversa by the more polite Italian.]
[Footnote 194: See the oration of Aeschines against the catamite
Timarchus, (in Reiske, Orator. Graec. tom. iii. p. 21 - 184.)]
[Footnote 195: A crowd of disgraceful passages will force
themselves on the memory of the classic reader: I will only
remind him of the cool declaration of Ovid: -
Odi concubitus qui non utrumque resolvant. Hoc est quod puerum
tangar amore minus.]
[Footnote 196: Aelius Lampridius, in Vit. Heliogabal. in Hist.
August p. 112 Aurelius Victor, in Philippo, Codex Theodos. l. ix.
tit. vii. leg. 7, and Godefroy's Commentary, tom. iii. p. 63.
Theodosius abolished the subterraneous brothels of Rome, in which
the prostitution of both sexes was acted with impunity.]
Chapter XLIV: Idea Of The Roman Jurisprudence.
Part VII.
A new spirit of legislation, respectable even in its error,
arose in the empire with the religion of Constantine. ^197 The
laws of Moses were received as the divine original of justice,
and the Christian princes adapted their penal statutes to the
degrees of moral and religious turpitude. Adultery was first
declared to be a capital offence: the frailty of the sexes was
assimilated to poison or assassination, to sorcery or parricide;
the same penalties were inflicted on the passive and active guilt
of paederasty; and all criminals of free or servile condition
were either drowned or beheaded, or cast alive into the avenging
flames. The adulterers were spared by the common sympathy of
mankind; but the lovers of their own sex were pursued by general
and pious indignation: the impure manners of Greece still
prevailed in the cities of Asia, and every vice was fomented by
the celibacy of the monks and clergy. Justinian relaxed the
punishment at least of female infidelity: the guilty spouse was
only condemned to solitude and penance, and at the end of two
years she might be recalled to the arms of a forgiving husband.
But the same emperor declared himself the implacable enemy of
unmanly lust, and the cruelty of his persecution can scarcely be
excused by the purity of his motives. ^198 In defiance of every
principle of justice, he stretched to past as well as future
offences the operations of his edicts, with the previous
allowance of a short respite for confession and pardon. A
painful death was inflicted by the amputation of the sinful
instrument, or the insertion of sharp reeds into the pores and
tubes of most exquisite sensibility; and Justinian defended the
propriety of the execution, since the criminals would have lost
their hands, had they been convicted of sacrilege. In this state
of disgrace and agony, two bishops, Isaiah of Rhodes and
Alexander of Diospolis, were dragged through the streets of
Constantinople, while their brethren were admonished, by the
voice of a crier, to observe this awful lesson, and not to
pollute the sanctity of their character. Perhaps these prelates
were innocent. A sentence of death and infamy was often founded
on the slight and suspicious evidence of a child or a servant:
the guilt of the green faction, of the rich, and of the enemies
of Theodora, was presumed by the judges, and paederasty became
the crime of those to whom no crime could be imputed. A French
philosopher ^199 has dared to remark that whatever is secret must
be doubtful, and that our natural horror of vice may be abused as
an engine of tyranny. But the favorable persuasion of the same
writer, that a legislator may confide in the taste and reason of
mankind, is impeached by the unwelcome discovery of the antiquity
and extent of the disease. ^200
[Footnote 197: See the laws of Constantine and his successors
against adultery, sodomy &c., in the Theodosian, (l. ix. tit.
vii. leg. 7, l. xi. tit. xxxvi leg. 1, 4) and Justinian Codes,
(l. ix. tit. ix. leg. 30, 31.) These princes speak the language
of passion as well as of justice, and fraudulently ascribe their
own severity to the first Caesars.]
[Footnote 198: Justinian, Novel. lxxvii. cxxxiv. cxli. Procopius
in Anecdot. c. 11, 16, with the notes of Alemannus. Theophanes,
p. 151. Cedrenus. p. 688. Zonaras, l. xiv. p. 64.]
[Footnote 199: Montesquieu, Esprit des Loix, l. xii. c. 6. That
eloquent philosopher conciliates the rights of liberty and of
nature, which should never be placed in opposition to each
other.]
[Footnote 200: For the corruption of Palestine, 2000 years before
the Christian aera, see the history and laws of Moses. Ancient
Gaul is stigmatized by Diodorus Siculus, (tom. i. l. v. p. 356,)
China by the Mahometar and Christian travellers, (Ancient
Relations of India and China, p. 34 translated by Renaudot, and
his bitter critic the Pere Premare, Lettres Edifiantes, tom. xix.
p. 435,) and native America by the Spanish historians,
(Garcilasso de la Vega, l. iii. c. 13, Rycaut's translation; and
Dictionnaire de Bayle, tom. iii. p. 88.) I believe, and hope,
that the negroes, in their own country, were exempt from this
moral pestilence.]
The free citizens of Athens and Rome enjoyed, in all
criminal cases, the invaluable privilege of being tried by their
country. ^201 1. The administration of justice is the most
ancient office of a prince: it was exercised by the Roman kings,
and abused by Tarquin; who alone, without law or council,
pronounced his arbitrary judgments. The first consuls succeeded
to this regal prerogative; but the sacred right of appeal soon
abolished the jurisdiction of the magistrates, and all public
causes were decided by the supreme tribunal of the people. But a
wild democracy, superior to the forms, too often disdains the
essential principles, of justice: the pride of despotism was
envenomed by plebeian envy, and the heroes of Athens might
sometimes applaud the happiness of the Persian, whose fate
depended on the caprice of a single tyrant. Some salutary
restraints, imposed by the people or their own passions, were at
once the cause and effect of the gravity and temperance of the
Romans. The right of accusation was confined to the magistrates.
A vote of the thirty five tribes could inflict a fine; but the
cognizance of all capital crimes was reserved by a fundamental
law to the assembly of the centuries, in which the weight of
influence and property was sure to preponderate. Repeated
proclamations and adjournments were interposed, to allow time for
prejudice and resentment to subside: the whole proceeding might
be annulled by a seasonable omen, or the opposition of a tribune;
and such popular trials were commonly less formidable to
innocence than they were favorable to guilt. But this union of
the judicial and legislative powers left it doubtful whether the
accused party was pardoned or acquitted; and, in the defence of
an illustrious client, the orators of Rome and Athens address
their arguments to the policy and benevolence, as well as to the
justice, of their sovereign. 2. The task of convening the
citizens for the trial of each offender became more difficult, as
the citizens and the offenders continually multiplied; and the
ready expedient was adopted of delegating the jurisdiction of the
people to the ordinary magistrates, or to extraordinary
inquisitors. In the first ages these questions were rare and
occasional. In the beginning of the seventh century of Rome they
were made perpetual: four praetors were annually empowered to sit
in judgment on the state offences of treason, extortion,
peculation, and bribery; and Sylla added new praetors and new
questions for those crimes which more directly injure the safety
of individuals. By these inquisitors the trial was prepared and
directed; but they could only pronounce the sentence of the
majority of judges, who with some truth, and more prejudice, have
been compared to the English juries. ^202 To discharge this
important, though burdensome office, an annual list of ancient
and respectable citizens was formed by the praetor. After many
constitutional struggles, they were chosen in equal numbers from
the senate, the equestrian order, and the people; four hundred
and fifty were appointed for single questions; and the various
rolls or decuries of judges must have contained the names of some
thousand Romans, who represented the judicial authority of the
state. In each particular cause, a sufficient number was drawn
from the urn; their integrity was guarded by an oath; the mode of
ballot secured their independence; the suspicion of partiality
was removed by the mutual challenges of the accuser and
defendant; and the judges of Milo, by the retrenchment of fifteen
on each side, were reduced to fifty-one voices or tablets, of
acquittal, of condemnation, or of favorable doubt. ^203 3. In his
civil jurisdiction, the praetor of the city was truly a judge,
and almost a legislator; but, as soon as he had prescribed the
action of law, he often referred to a delegate the determination
of the fact. With the increase of legal proceedings, the
tribunal of the centumvirs, in which he presided, acquired more
weight and reputation. But whether he acted alone, or with the
advice of his council, the most absolute powers might be trusted
to a magistrate who was annually chosen by the votes of the
people. The rules and precautions of freedom have required some
explanation; the order of despotism is simple and inanimate.
Before the age of Justinian, or perhaps of Diocletian, the
decuries of Roman judges had sunk to an empty title: the humble
advice of the assessors might be accepted or despised; and in
each tribunal the civil and criminal jurisdiction was
administered by a single magistrate, who was raised and disgraced
by the will of the emperor.
[Footnote 201: The important subject of the public questions and
judgments at Rome, is explained with much learning, and in a
classic style, by Charles Sigonius, (l. iii. de Judiciis, in Opp.
tom. iii. p. 679 - 864;) and a good abridgment may be found in
the Republique Romaine of Beaufort, (tom. ii. l. v. p. 1 - 121.)
Those who wish for more abstruse law may study Noodt, (de
Jurisdictione et Imperio Libri duo, tom. i. p. 93 - 134,)
Heineccius, (ad Pandect. l. i. et ii. ad Institut. l. iv. tit.
xvii Element. ad Antiquitat.) and Gravina (Opp. 230 - 251.)]
[Footnote 202: The office, both at Rome and in England, must be
considered as an occasional duty, and not a magistracy, or
profession. But the obligation of a unanimous verdict is
peculiar to our laws, which condemn the jurymen to undergo the
torture from whence they have exempted the criminal.]
[Footnote 203: We are indebted for this interesting fact to a
fragment of Asconius Pedianus, who flourished under the reign of
Tiberius. The loss of his Commentaries on the Orations of Cicero
has deprived us of a valuable fund of historical and legal
knowledge.]
A Roman accused of any capital crime might prevent the
sentence of the law by voluntary exile, or death. Till his guilt
had been legally proved, his innocence was presumed, and his
person was free: till the votes of the last century had been
counted and declared, he might peaceably secede to any of the
allied cities of Italy, or Greece, or Asia. ^204 His fame and
fortunes were preserved, at least to his children, by this civil
death; and he might still be happy in every rational and sensual
enjoyment, if a mind accustomed to the ambitious tumult of Rome
could support the uniformity and silence of Rhodes or Athens. A
bolder effort was required to escape from the tyranny of the
Caesars; but this effort was rendered familiar by the maxims of
the stoics, the example of the bravest Romans, and the legal
encouragements of suicide. The bodies of condemned criminals were
exposed to public ignominy, and their children, a more serious
evil, were reduced to poverty by the confiscation of their
fortunes. But, if the victims of Tiberius and Nero anticipated
the decree of the prince or senate, their courage and despatch
were recompensed by the applause of the public, the decent honors
of burial, and the validity of their testaments. ^205 The
exquisite avarice and cruelty of Domitian appear to have deprived
the unfortunate of this last consolation, and it was still denied
even by the clemency of the Antonines. A voluntary death, which,
in the case of a capital offence, intervened between the
accusation and the sentence, was admitted as a confession of
guilt, and the spoils of the deceased were seized by the inhuman
claims of the treasury. ^206 Yet the civilians have always
respected the natural right of a citizen to dispose of his life;
and the posthumous disgrace invented by Tarquin, ^207 to check
the despair of his subjects, was never revived or imitated by
succeeding tyrants. The powers of this world have indeed lost
their dominion over him who is resolved on death; and his arm can
only be restrained by the religious apprehension of a future
state. Suicides are enumerated by Virgil among the unfortunate,
rather than the guilty; ^208 and the poetical fables of the
infernal shades could not seriously influence the faith or
practice of mankind. But the precepts of the gospel, or the
church, have at length imposed a pious servitude on the minds of
Christians, and condemn them to expect, without a murmur, the
last stroke of disease or the executioner.
[Footnote 204: Polyb. l. vi. p. 643. The extension of the empire
and city of Rome obliged the exile to seek a more distant place
of retirement.]
[Footnote 205: Qui de se statuebant, humabanta corpora, manebant
testamenta; pretium festinandi. Tacit. Annal. vi. 25, with the
Notes of Lipsius.]
[Footnote 206: Julius Paulus, (Sentent. Recept. l. v. tit. xii.
p. 476,) the Pandects, (xlviii. tit. xxi.,) the Code, (l. ix.
tit. l.,) Bynkershoek, (tom. i. p. 59, Observat. J. C. R. iv. 4,)
and Montesquieu, (Esprit des Loix, l. xxix. c. ix.,) define the
civil limitations of the liberty and privileges of suicide. The
criminal penalties are the production of a later and darker age.]
[Footnote 207: Plin. Hist. Natur. xxxvi. 24. When he fatigued
his subjects in building the Capitol, many of the laborers were
provoked to despatch themselves: he nailed their dead bodies to
crosses.]
[Footnote 208: The sole resemblance of a violent and premature
death has engaged Virgil (Aeneid, vi. 434 - 439) to confound
suicides with infants, lovers, and persons unjustly condemned.
Heyne, the best of his editors, is at a loss to deduce the idea,
or ascertain the jurisprudence, of the Roman poet.]
The penal statutes form a very small proportion of the
sixty-two books of the Code and Pandects; and in all judicial
proceedings, the life or death of a citizen is determined with
less caution or delay than the most ordinary question of covenant
or inheritance. This singular distinction, though something may
be allowed for the urgent necessity of defending the peace of
society, is derived from the nature of criminal and civil
jurisprudence. Our duties to the state are simple and uniform:
the law by which he is condemned is inscribed not only on brass
or marble, but on the conscience of the offender, and his guilt
is commonly proved by the testimony of a single fact. But our
relations to each other are various and infinite; our obligations
are created, annulled, and modified, by injuries, benefits, and
promises; and the interpretation of voluntary contracts and
testaments, which are often dictated by fraud or ignorance,
affords a long and laborious exercise to the sagacity of the
judge. The business of life is multiplied by the extent of
commerce and dominion, and the residence of the parties in the
distant provinces of an empire is productive of doubt, delay, and
inevitable appeals from the local to the supreme magistrate.
Justinian, the Greek emperor of Constantinople and the East, was
the legal successor of the Latin shepherd who had planted a
colony on the banks of the Tyber. In a period of thirteen
hundred years, the laws had reluctantly followed the changes of
government and manners; and the laudable desire of conciliating
ancient names with recent institutions destroyed the harmony, and
swelled the magnitude, of the obscure and irregular system. The
laws which excuse, on any occasions, the ignorance of their
subjects, confess their own imperfections: the civil
jurisprudence, as it was abridged by Justinian, still continued a
mysterious science, and a profitable trade, and the innate
perplexity of the study was involved in tenfold darkness by the
private industry of the practitioners. The expense of the pursuit
sometimes exceeded the value of the prize, and the fairest rights
were abandoned by the poverty or prudence of the claimants. Such
costly justice might tend to abate the spirit of litigation, but
the unequal pressure serves only to increase the influence of the
rich, and to aggravate the misery of the poor. By these dilatory
and expensive proceedings, the wealthy pleader obtains a more
certain advantage than he could hope from the accidental
corruption of his judge. The experience of an abuse, from which
our own age and country are not perfectly exempt, may sometimes
provoke a generous indignation, and extort the hasty wish of
exchanging our elaborate jurisprudence for the simple and summary
decrees of a Turkish cadhi. Our calmer reflection will suggest,
that such forms and delays are necessary to guard the person and
property of the citizen; that the discretion of the judge is the
first engine of tyranny; and that the laws of a free people
should foresee and determine every question that may probably
arise in the exercise of power and the transactions of industry.
But the government of Justinian united the evils of liberty and
servitude; and the Romans were oppressed at the same time by the
multiplicity of their laws and the arbitrary will of their
master.
Chapter XLV: State Of Italy Under The Lombards.
Part I.
Reign Of The Younger Justin. - Embassy Of The Avars. - Their
Settlement On The Danube. - Conquest Of Italy By The Lombards. -
Adoption And Reign Of Tiberius. - Of Maurice. - State Of Italy
Under The Lombards And The Exarchs. - Of Ravenna. - Distress Of
Rome. - Character And Pontificate Of Gregory The First.
During the last years of Justinian, his infirm mind was
devoted to heavenly contemplation, and he neglected the business
of the lower world. His subjects were impatient of the long
continuance of his life and reign: yet all who were capable of
reflection apprehended the moment of his death, which might
involve the capital in tumult, and the empire in civil war. Seven
nephews ^1 of the childless monarch, the sons or grandsons of his
brother and sister, had been educated in the splendor of a
princely fortune; they had been shown in high commands to the
provinces and armies; their characters were known, their
followers were zealous, and, as the jealousy of age postponed the
declaration of a successor, they might expect with equal hopes
the inheritance of their uncle. He expired in his palace, after
a reign of thirty-eight years; and the decisive opportunity was
embraced by the friends of Justin, the son of Vigilantia. ^2 At
the hour of midnight, his domestics were awakened by an
importunate crowd, who thundered at his door, and obtained
admittance by revealing themselves to be the principal members of
the senate. These welcome deputies announced the recent and
momentous secret of the emperor's decease; reported, or perhaps
invented, his dying choice of the best beloved and most deserving
of his nephews, and conjured Justin to prevent the disorders of
the multitude, if they should perceive, with the return of light,
that they were left without a master. After composing his
countenance to surprise, sorrow, and decent modesty, Justin, by
the advice of his wife Sophia, submitted to the authority of the
senate. He was conducted with speed and silence to the palace;
the guards saluted their new sovereign; and the martial and
religious rites of his coronation were diligently accomplished.
By the hands of the proper officers he was invested with the
Imperial garments, the red buskins, white tunic, and purple robe.
A fortunate soldier, whom he instantly promoted to the rank of
tribune, encircled his neck with a military collar; four robust
youths exalted him on a shield; he stood firm and erect to
receive the adoration of his subjects; and their choice was
sanctified by the benediction of the patriarch, who imposed the
diadem on the head of an orthodox prince. The hippodrome was
already filled with innumerable multitudes; and no sooner did the
emperor appear on his throne, than the voices of the blue and the
green factions were confounded in the same loyal acclamations.
In the speeches which Justin addressed to the senate and people,
he promised to correct the abuses which had disgraced the age of
his predecessor, displayed the maxims of a just and beneficent
government, and declared that, on the approaching calends of
January, ^3 he would revive in his own person the name and
liberty of a Roman consul. The immediate discharge of his
uncle's debts exhibited a solid pledge of his faith and
generosity: a train of porters, laden with bags of gold, advanced
into the midst of the hippodrome, and the hopeless creditors of
Justinian accepted this equitable payment as a voluntary gift.
Before the end of three years, his example was imitated and
surpassed by the empress Sophia, who delivered many indigent
citizens from the weight of debt and usury: an act of benevolence
the best entitled to gratitude, since it relieves the most
intolerable distress; but in which the bounty of a prince is the
most liable to be abused by the claims of prodigality and fraud.
^4
[Footnote 1: See the family of Justin and Justinian in the
Familiae Byzantine of Ducange, p. 89 - 101. The devout
civilians, Ludewig (in Vit. Justinian. p. 131) and Heineccius
(Hist. Juris. Roman. p. 374) have since illustrated the genealogy
of their favorite prince.]
[Footnote 2: In the story of Justin's elevation I have translated
into simple and concise prose the eight hundred verses of the two
first books of Corippus, de Laudibus Justini Appendix Hist.
Byzant. p. 401 - 416 Rome 1777.]
[Footnote 3: It is surprising how Pagi (Critica. in Annal. Baron.
tom. ii. p 639) could be tempted by any chronicles to contradict
the plain and decisive text of Corippus, (vicina dona, l. ii.
354, vicina dies, l. iv. 1,) and to postpone, till A.D. 567, the
consulship of Justin.]
[Footnote 4: Theophan. Chronograph. p. 205. Whenever Cedrenus or
Zonaras are mere transcribers, it is superfluous to allege their
testimony.]
On the seventh day of his reign, Justin gave audience to the
ambassadors of the Avars, and the scene was decorated to impress
the Barbarians with astonishment, veneration, and terror. From
the palace gate, the spacious courts and long porticos were lined
with the lofty crests and gilt bucklers of the guards, who
presented their spears and axes with more confidence than they
would have shown in a field of battle. The officers who
exercised the power, or attended the person, of the prince, were
attired in their richest habits, and arranged according to the
military and civil order of the hierarchy. When the veil of the
sanctuary was withdrawn, the ambassadors beheld the emperor of
the East on his throne, beneath a canopy, or dome, which was
supported by four columns, and crowned with a winged figure of
Victory. In the first emotions of surprise, they submitted to
the servile adoration of the Byzantine court; but as soon as they
rose from the ground, Targetius, the chief of the embassy,
expressed the freedom and pride of a Barbarian. He extolled, by
the tongue of his interpreter, the greatness of the chagan, by
whose clemency the kingdoms of the South were permitted to exist,
whose victorious subjects had traversed the frozen rivers of
Scythia, and who now covered the banks of the Danube with
innumerable tents. The late emperor had cultivated, with annual
and costly gifts, the friendship of a grateful monarch, and the
enemies of Rome had respected the allies of the Avars. The same
prudence would instruct the nephew of Justinian to imitate the
liberality of his uncle, and to purchase the blessings of peace
from an invincible people, who delighted and excelled in the
exercise of war. The reply of the emperor was delivered in the
same strain of haughty defiance, and he derived his confidence
from the God of the Christians, the ancient glory of Rome, and
the recent triumphs of Justinian. "The empire," said he, "abounds
with men and horses, and arms sufficient to defend our frontiers,
and to chastise the Barbarians. You offer aid, you threaten
hostilities: we despise your enmity and your aid. The conquerors
of the Avars solicit our alliance; shall we dread their fugitives
and exiles? ^5 The bounty of our uncle was granted to your
misery, to your humble prayers. From us you shall receive a more
important obligation, the knowledge of your own weakness. Retire
from our presence; the lives of ambassadors are safe; and, if you
return to implore our pardon, perhaps you will taste of our
benevolence." ^6 On the report of his ambassadors, the chagan was
awed by the apparent firmness of a Roman emperor of whose
character and resources he was ignorant. Instead of executing his
threats against the Eastern empire, he marched into the poor and
savage countries of Germany, which were subject to the dominion
of the Franks. After two doubtful battles, he consented to
retire, and the Austrasian king relieve the distress of his camp
with an immediate supply of corn and cattle. ^7 Such repeated
disappointments had chilled the spirit of the Avars, and their
power would have dissolved away in the Sarmatian desert, if the
alliance of Alboin, king of the Lombards, had not given a new
object to their arms, and a lasting settlement to their wearied
fortunes.
[Footnote 5: Corippus, l. iii. 390. The unquestionable sense
relates to the Turks, the conquerors of the Avars; but the word
scultor has no apparent meaning, and the sole Ms. of Corippus,
from whence the first edition (1581, apud Plantin) was printed,
is no longer visible. The last editor, Foggini of Rome, has
inserted the conjectural emendation of soldan: but the proofs of
Ducange, (Joinville, Dissert. xvi. p. 238 - 240,) for the early
use of this title among the Turks and Persians, are weak or
ambiguous. And I must incline to the authority of D'Herbelot,
(Bibliotheque Orient. p. 825,) who ascribes the word to the
Arabic and Chaldaean tongues, and the date to the beginning of
the xith century, when it was bestowed by the khalif of Bagdad on
Mahmud, prince of Gazna, and conqueror of India.]
[Footnote 6: For these characteristic speeches, compare the verse
of Corippus (l. iii. 251 - 401) with the prose of Menander,
(Excerpt. Legation. p 102, 103.) Their diversity proves that they
did not copy each other their resemblance, that they drew from a
common original.]
[Footnote 7: For the Austrasian war, see Menander (Excerpt.
Legat. p. 110,) Gregory of Tours, (Hist. Franc. l. iv. c 29,) and
Paul the deacon, (de Gest. Langobard. l. ii. c. 10.)]
While Alboin served under his father's standard, he
encountered in battle, and transpierced with his lance, the rival
prince of the Gepidae. The Lombards, who applauded such early
prowess, requested his father, with unanimous acclamations, that
the heroic youth, who had shared the dangers of the field, might
be admitted to the feast of victory. "You are not unmindful,"
replied the inflexible Audoin, "of the wise customs of our
ancestors. Whatever may be his merit, a prince is incapable of
sitting at table with his father till he has received his arms
from a foreign and royal hand." Alboin bowed with reverence to
the institutions of his country, selected forty companions, and
boldly visited the court of Turisund, king of the Gepidae, who
embraced and entertained, according to the laws of hospitality,
the murderer of his son. At the banquet, whilst Alboin occupied
the seat of the youth whom he had slain, a tender remembrance
arose in the mind of Turisund. "How dear is that place! how
hateful is that person!" were the words that escaped, with a
sigh, from the indignant father. His grief exasperated the
national resentment of the Gepidae; and Cunimund, his surviving
son, was provoked by wine, or fraternal affection, to the desire
of vengeance. "The Lombards," said the rude Barbarian,
"resemble, in figure and in smell, the mares of our Sarmatian
plains." And this insult was a coarse allusion to the white bands
which enveloped their legs. "Add another resemblance," replied
an audacious Lombard; "you have felt how strongly they kick.
Visit the plain of Asfield, and seek for the bones of thy
brother: they are mingled with those of the vilest animals." The
Gepidae, a nation of warriors, started from their seats, and the
fearless Alboin, with his forty companions, laid their hands on
their swords. The tumult was appeased by the venerable
interposition of Turisund. He saved his own honor, and the life
of his guest; and, after the solemn rites of investiture,
dismissed the stranger in the bloody arms of his son; the gift of
a weeping parent. Alboin returned in triumph; and the Lombards,
who celebrated his matchless intrepidity, were compelled to
praise the virtues of an enemy. ^8 In this extraordinary visit he
had probably seen the daughter of Cunimund, who soon after
ascended the throne of the Gepidae. Her name was Rosamond, an
appellation expressive of female beauty, and which our own
history or romance has consecrated to amorous tales. The king of
the Lombards (the father of Alboin no longer lived) was
contracted to the granddaughter of Clovis; but the restraints of
faith and policy soon yielded to the hope of possessing the fair
Rosamond, and of insulting her family and nation. The arts of
persuasion were tried without success; and the impatient lover,
by force and stratagem, obtained the object of his desires. War
was the consequence which he foresaw and solicited; but the
Lombards could not long withstand the furious assault of the
Gepidae, who were sustained by a Roman army. And, as the offer
of marriage was rejected with contempt, Alboin was compelled to
relinquish his prey, and to partake of the disgrace which he had
inflicted on the house of Cunimund. ^9
[Footnote 8: Paul Warnefrid, the deacon of Friuli, de Gest.
Langobard. l. i. c. 23, 24. His pictures of national manners,
though rudely sketched are more lively and faithful than those of
Bede, or Gregory of Tours]
[Footnote 9: The story is told by an impostor, (Theophylact.
Simocat. l. vi. c. 10;) but he had art enough to build his
fictions on public and notorious facts.]
When a public quarrel is envenomed by private injuries, a
blow that is not mortal or decisive can be productive only of a
short truce, which allows the unsuccessful combatant to sharpen
his arms for a new encounter. The strength of Alboin had been
found unequal to the gratification of his love, ambition, and
revenge: he condescended to implore the formidable aid of the
chagan; and the arguments that he employed are expressive of the
art and policy of the Barbarians. In the attack of the Gepidae,
he had been prompted by the just desire of extirpating a people
whom their alliance with the Roman empire had rendered the common
enemies of the nations, and the personal adversaries of the
chagan. If the forces of the Avars and the Lombards should unite
in this glorious quarrel, the victory was secure, and the reward
inestimable: the Danube, the Hebrus, Italy, and Constantinople,
would be exposed, without a barrier, to their invincible arms.
But, if they hesitated or delayed to prevent the malice of the
Romans, the same spirit which had insulted would pursue the Avars
to the extremity of the earth. These specious reasons were heard
by the chagan with coldness and disdain: he detained the Lombard
ambassadors in his camp, protracted the negotiation, and by turns
alleged his want of inclination, or his want of ability, to
undertake this important enterprise. At length he signified the
ultimate price of his alliance, that the Lombards should
immediately present him with a tithe of their cattle; that the
spoils and captives should be equally divided; but that the lands
of the Gepidae should become the sole patrimony of the Avars.
Such hard conditions were eagerly accepted by the passions of
Alboin; and, as the Romans were dissatisfied with the ingratitude
and perfidy of the Gepidae, Justin abandoned that incorrigible
people to their fate, and remained the tranquil spectator of this
unequal conflict. The despair of Cunimund was active and
dangerous. He was informed that the Avars had entered his
confines; but, on the strong assurance that, after the defeat of
the Lombards, these foreign invaders would easily be repelled, he
rushed forwards to encounter the implacable enemy of his name and
family. But the courage of the Gepidae could secure them no more
than an honorable death. The bravest of the nation fell in the
field of battle; the king of the Lombards contemplated with
delight the head of Cunimund; and his skull was fashioned into a
cup to satiate the hatred of the conqueror, or, perhaps, to
comply with the savage custom of his country. ^10 After this
victory, no further obstacle could impede the progress of the
confederates, and they faithfully executed the terms of their
agreement. ^11 The fair countries of Walachia, Moldavia,
Transylvania, and the other parts of Hungary beyond the Danube,
were occupied, without resistance, by a new colony of Scythians;
and the Dacian empire of the chagans subsisted with splendor
above two hundred and thirty years. The nation of the Gepidae
was dissolved; but, in the distribution of the captives, the
slaves of the Avars were less fortunate than the companions of
the Lombards, whose generosity adopted a valiant foe, and whose
freedom was incompatible with cool and deliberate tyranny. One
moiety of the spoil introduced into the camp of Alboin more
wealth than a Barbarian could readily compute. The fair Rosamond
was persuaded, or compelled, to acknowledge the rights of her
victorious lover; and the daughter of Cunimund appeared to
forgive those crimes which might be imputed to her own
irresistible charms.
[Footnote 10: It appears from Strabo, Pliny, and Ammianus
Marcellinus, that the same practice was common among the Scythian
tribes, (Muratori, Scriptores Rer. Italic. tom. i. p. 424.) The
scalps of North America are likewise trophies of valor. The
skull of Cunimund was preserved above two hundred years among the
Lombards; and Paul himself was one of the guests to whom Duke
Ratchis exhibited this cup on a high festival, (l. ii. c. 28.)]
[Footnote 11: Paul, l. i. c. 27. Menander, in Excerpt Legat. p.
110, 111.]
The destruction of a mighty kingdom established the fame of
Alboin. In the days of Charlemagne, the Bavarians, the Saxons,
and the other tribes of the Teutonic language, still repeated the
songs which described the heroic virtues, the valor, liberality,
and fortune of the king of the Lombards. ^12 But his ambition was
yet unsatisfied; and the conqueror of the Gepidae turned his eyes
from the Danube to the richer banks of the Po, and the Tyber.
Fifteen years had not elapsed, since his subjects, the
confederates of Narses, had visited the pleasant climate of
Italy: the mountains, the rivers, the highways, were familiar to
their memory: the report of their success, perhaps the view of
their spoils, had kindled in the rising generation the flame of
emulation and enterprise. Their hopes were encouraged by the
spirit and eloquence of Alboin: and it is affirmed, that he spoke
to their senses, by producing at the royal feast, the fairest and
most exquisite fruits that grew spontaneously in the garden of
the world. No sooner had he erected his standard, than the
native strength of the Lombard was multiplied by the adventurous
youth of Germany and Scythia. The robust peasantry of Noricum
and Pannonia had resumed the manners of Barbarians; and the names
of the Gepidae, Bulgarians, Sarmatians, and Bavarians, may be
distinctly traced in the provinces of Italy. ^13 Of the Saxons,
the old allies of the Lombards, twenty thousand warriors, with
their wives and children, accepted the invitation of Alboin.
Their bravery contributed to his success; but the accession or
the absence of their numbers was not sensibly felt in the
magnitude of his host. Every mode of religion was freely
practised by its respective votaries. The king of the Lombards
had been educated in the Arian heresy; but the Catholics, in
their public worship, were allowed to pray for his conversion;
while the more stubborn Barbarians sacrificed a she-goat, or
perhaps a captive, to the gods of their fathers. ^14 The
Lombards, and their confederates, were united by their common
attachment to a chief, who excelled in all the virtues and vices
of a savage hero; and the vigilance of Alboin provided an ample
magazine of offensive and defensive arms for the use of the
expedition. The portable wealth of the Lombards attended the
march: their lands they cheerfully relinquished to the Avars, on
the solemn promise, which was made and accepted without a smile,
that if they failed in the conquest of Italy, these voluntary
exiles should be reinstated in their former possessions.
[Footnote 12: Ut hactenus etiam tam apud Bajoarior um gentem,
quam et Saxmum, sed et alios ejusdem linguae homines .... . in
eorum carmini bus celebretur. Paul, l. i. c. 27. He died A.D.
799, (Muratori, in Praefat. tom. i. p. 397.) These German songs,
some of which might be as old as Tacitus, (de Moribus Germ. c.
2,) were compiled and transcribed by Charlemagne. Barbara et
antiquissima carmina, quibus veterum regum actus et bella
canebantur scripsit memoriaeque mandavit, (Eginard, in Vit.
Carol. Magn. c. 29, p. 130, 131.) The poems, which Goldast
commends, (Animadvers. ad Eginard. p. 207,) appear to be recent
and contemptible romances.]
[Footnote 13: The other nations are rehearsed by Paul, (l. ii. c.
6, 26,) Muratori (Antichita Italiane, tom. i. dissert. i. p. 4)
has discovered the village of the Bavarians, three miles from
Modena.]
[Footnote 14: Gregory the Roman (Dialog. l. i. iii. c. 27, 28,
apud Baron. Annal Eccles. A.D. 579, No. 10) supposes that they
likewise adored this she- goat. I know but of one religion in
which the god and the victim are the same.]
They might have failed, if Narses had been the antagonist of
the Lombards; and the veteran warriors, the associates of his
Gothic victory, would have encountered with reluctance an enemy
whom they dreaded and esteemed. But the weakness of the
Byzantine court was subservient to the Barbarian cause; and it
was for the ruin of Italy, that the emperor once listened to the
complaints of his subjects. The virtues of Narses were stained
with avarice; and, in his provincial reign of fifteen years, he
accumulated a treasure of gold and silver which surpassed the
modesty of a private fortune. His government was oppressive or
unpopular, and the general discontent was expressed with freedom
by the deputies of Rome. Before the throne of Justinian they
boldly declared, that their Gothic servitude had been more
tolerable than the despotism of a Greek eunuch; and that, unless
their tyrant were instantly removed, they would consult their own
happiness in the choice of a master. The apprehension of a
revolt was urged by the voice of envy and detraction, which had
so recently triumphed over the merit of Belisarius. A new
exarch, Longinus, was appointed to supersede the conqueror of
Italy, and the base motives of his recall were revealed in the
insulting mandate of the empress Sophia, "that he should leave to
men the exercise of arms, and return to his proper station among
the maidens of the palace, where a distaff should be again placed
in the hand of the eunuch." "I will spin her such a thread as she
shall not easily unravel!" is said to have been the reply which
indignation and conscious virtue extorted from the hero. Instead
of attending, a slave and a victim, at the gate of the Byzantine
palace, he retired to Naples, from whence (if any credit is due
to the belief of the times) Narses invited the Lombards to
chastise the ingratitude of the prince and people. ^15 But the
passions of the people are furious and changeable, and the Romans
soon recollected the merits, or dreaded the resentment, of their
victorious general. By the mediation of the pope, who undertook
a special pilgrimage to Naples, their repentance was accepted;
and Narses, assuming a milder aspect and a more dutiful language,
consented to fix his residence in the Capitol. His death, ^16
though in the extreme period of old age, was unseasonable and
premature, since his genius alone could have repaired the last
and fatal error of his life. The reality, or the suspicion, of a
conspiracy disarmed and disunited the Italians. The soldiers
resented the disgrace, and bewailed the loss, of their general.
They were ignorant of their new exarch; and Longinus was himself
ignorant of the state of the army and the province. In the
preceding years Italy had been desolated by pestilence and
famine, and a disaffected people ascribed the calamities of
nature to the guilt or folly of their rulers. ^17
[Footnote 15: The charge of the deacon against Narses (l. ii. c.
5) may be groundless; but the weak apology of the Cardinal
(Baron. Annal Eccles. A.D. 567, No. 8 - 12) is rejected by the
best critics - Pagi (tom. ii. p. 639, 640,) Muratori, (Annali d'
Italia, tom. v. p. 160 - 163,) and the last editors, Horatius
Blancus, (Script. Rerum Italic. tom. i. p. 427, 428,) and Philip
Argelatus, (Sigon. Opera, tom. ii. p. 11, 12.) The Narses who
assisted at the coronation of Justin (Corippus, l. iii. 221) is
clearly understood to be a different person.]
[Footnote 16: The death of Narses is mentioned by Paul, l. ii. c.
11. Anastas. in Vit. Johan. iii. p. 43. Agnellus, Liber
Pontifical. Raven. in Script. Rer. Italicarum, tom. ii. part i.
p. 114, 124. Yet I cannot believe with Agnellus that Narses was
ninety-five years of age. Is it probable that all his exploits
were performed at fourscore?]
[Footnote 17: The designs of Narses and of the Lombards for the
invasion of Italy are exposed in the last chapter of the first
book, and the seven last chapters of the second book, of Paul the
deacon.]
Whatever might be the grounds of his security, Alboin
neither expected nor encountered a Roman army in the field. He
ascended the Julian Alps, and looked down with contempt and
desire on the fruitful plains to which his victory communicated
the perpetual appellation of Lombardy. A faithful chieftain, and
a select band, were stationed at Forum Julii, the modern Friuli,
to guard the passes of the mountains. The Lombards respected the
strength of Pavia, and listened to the prayers of the Trevisans:
their slow and heavy multitudes proceeded to occupy the palace
and city of Verona; and Milan, now rising from her ashes, was
invested by the powers of Alboin five months after his departure
from Pannonia. Terror preceded his march: he found every where,
or he left, a dreary solitude; and the pusillanimous Italians
presumed, without a trial, that the stranger was invincible.
Escaping to lakes, or rocks, or morasses, the affrighted crowds
concealed some fragments of their wealth, and delayed the moment
of their servitude. Paulinus, the patriarch of Aquileia, removed
his treasures, sacred and profane, to the Isle of Grado, ^18 and
his successors were adopted by the infant republic of Venice,
which was continually enriched by the public calamities.
Honoratus, who filled the chair of St. Ambrose, had credulously
accepted the faithless offers of a capitulation; and the
archbishop, with the clergy and nobles of Milan, were driven by
the perfidy of Alboin to seek a refuge in the less accessible
ramparts of Genoa. Along the maritime coast, the courage of the
inhabitants was supported by the facility of supply, the hopes of
relief, and the power of escape; but from the Trentine hills to
the gates of Ravenna and Rome the inland regions of Italy became,
without a battle or a siege, the lasting patrimony of the
Lombards. The submission of the people invited the Barbarian to
assume the character of a lawful sovereign, and the helpless
exarch was confined to the office of announcing to the emperor
Justin the rapid and irretrievable loss of his provinces and
cities. ^19 One city, which had been diligently fortified by the
Goths, resisted the arms of a new invader; and while Italy was
subdued by the flying detachments of the Lombards, the royal camp
was fixed above three years before the western gate of Ticinum,
or Pavia. The same courage which obtains the esteem of a
civilized enemy provokes the fury of a savage, and the impatient
besieger had bound himself by a tremendous oath, that age, and
sex, and dignity, should be confounded in a general massacre.
The aid of famine at length enabled him to execute his bloody
vow; but, as Alboin entered the gate, his horse stumbled, fell,
and could not be raised from the ground. One of his attendants
was prompted by compassion, or piety, to interpret this
miraculous sign of the wrath of Heaven: the conqueror paused and
relented; he sheathed his sword, and peacefully reposing himself
in the palace of Theodoric, proclaimed to the trembling multitude
that they should live and obey. Delighted with the situation of
a city which was endeared to his pride by the difficulty of the
purchase, the prince of the Lombards disdained the ancient
glories of Milan; and Pavia, during some ages, was respected as
the capital of the kingdom of Italy. ^20
[Footnote 18: Which from this translation was called New
Aquileia, (Chron. Venet. p. 3.) The patriarch of Grado soon
became the first citizen of the republic, (p. 9, &c.,) but his
seat was not removed to Venice till the year 1450. He is now
decorated with titles and honors; but the genius of the church
has bowed to that of the state, and the government of a Catholic
city is strictly Presbyterian. Thomassin, Discipline de
l'Eglise, tom. i. p. 156, 157, 161 - 165. Amelot de la Houssaye,
Gouvernement de Venise, tom. i. p. 256 - 261.]
[Footnote 19: Paul has given a description of Italy, as it was
then divided into eighteen regions, (l. ii. c. 14 - 24.) The
Dissertatio Chorographica de Italia Medii Aevi, by Father
Beretti, a Benedictine monk, and regius professor at Pavia, has
been usefully consulted.]
[Footnote 20: For the conquest of Italy, see the original
materials of Paul, (l. p. 7 - 10, 12, 14, 25, 26, 27,) the
eloquent narrative of Sigonius, tom. il. de Regno Italiae, l. i.
p. 13 - 19,) and the correct and critical review el Muratori,
(Annali d' Italia, tom. v. p. 164 - 180.)]
The reign of the founder was splendid and transient; and,
before he could regulate his new conquests, Alboin fell a
sacrifice to domestic treason and female revenge. In a palace
near Verona, which had not been erected for the Barbarians, he
feasted the companions of his arms; intoxication was the reward
of valor, and the king himself was tempted by appetite, or
vanity, to exceed the ordinary measure of his intemperance.
After draining many capacious bowls of Rhaetian or Falernian
wine, he called for the skull of Cunimund, the noblest and most
precious ornament of his sideboard. The cup of victory was
accepted with horrid applause by the circle of the Lombard
chiefs. "Fill it again with wine," exclaimed the inhuman
conqueror, "fill it to the brim: carry this goblet to the queen,
and request in my name that she would rejoice with her father."
In an agony of grief and rage, Rosamond had strength to utter,
"Let the will of my lord be obeyed!" and, touching it with her
lips, pronounced a silent imprecation, that the insult should be
washed away in the blood of Alboin. Some indulgence might be due
to the resentment of a daughter, if she had not already violated
the duties of a wife. Implacable in her enmity, or inconstant in
her love, the queen of Italy had stooped from the throne to the
arms of a subject, and Helmichis, the king's armor-bearer, was
the secret minister of her pleasure and revenge. Against the
proposal of the murder, he could no longer urge the scruples of
fidelity or gratitude; but Helmichis trembled when he revolved
the danger as well as the guilt, when he recollected the
matchless strength and intrepidity of a warrior whom he had so
often attended in the field of battle. He pressed and obtained,
that one of the bravest champions of the Lombards should be
associated to the enterprise; but no more than a promise of
secrecy could be drawn from the gallant Peredeus, and the mode of
seduction employed by Rosamond betrays her shameless
insensibility both to honor and love. She supplied the place of
one of her female attendants who was beloved by Peredeus, and
contrived some excuse for darkness and silence, till she could
inform her companion that he had enjoyed the queen of the
Lombards, and that his own death, or the death of Alboin, must be
the consequence of such treasonable adultery. In this
alternative he chose rather to be the accomplice than the victim
of Rosamond, ^21 whose undaunted spirit was incapable of fear or
remorse. She expected and soon found a favorable moment, when
the king, oppressed with wine, had retired from the table to his
afternoon slumbers. His faithless spouse was anxious for his
health and repose: the gates of the palace were shut, the arms
removed, the attendants dismissed, and Rosamond, after lulling
him to rest by her tender caresses, unbolted the chamber door,
and urged the reluctant conspirators to the instant execution of
the deed. On the first alarm, the warrior started from his
couch: his sword, which he attempted to draw, had been fastened
to the scabbard by the hand of Rosamond; and a small stool, his
only weapon, could not long protect him from the spears of the
assassins. The daughter of Cunimund smiled in his fall: his body
was buried under the staircase of the palace; and the grateful
posterity of the Lombards revered the tomb and the memory of
their victorious leader.
[Footnote 21: The classical reader will recollect the wife and
murder of Candaules, so agreeably told in the first book of
Herodotus. The choice of Gyges, may serve as the excuse of
Peredeus; and this soft insinuation of an odious idea has been
imitated by the best writers of antiquity, (Graevius, ad Ciceron.
Orat. pro Miloue c. 10)]
Chapter XLV: State Of Italy Under The Lombards.
Part II.
The ambitious Rosamond aspired to reign in the name of her
lover; the city and palace of Verona were awed by her power; and
a faithful band of her native Gepidae was prepared to applaud the
revenge, and to second the wishes, of their sovereign. But the
Lombard chiefs, who fled in the first moments of consternation
and disorder, had resumed their courage and collected their
powers; and the nation, instead of submitting to her reign,
demanded, with unanimous cries, that justice should be executed
on the guilty spouse and the murderers of their king. She sought
a refuge among the enemies of her country; and a criminal who
deserved the abhorrence of mankind was protected by the selfish
policy of the exarch. With her daughter, the heiress of the
Lombard throne, her two lovers, her trusty Gepidae, and the
spoils of the palace of Verona, Rosamond descended the Adige and
the Po, and was transported by a Greek vessel to the safe harbor
of Ravenna. Longinus beheld with delight the charms and the
treasures of the widow of Alboin: her situation and her past
conduct might justify the most licentious proposals; and she
readily listened to the passion of a minister, who, even in the
decline of the empire, was respected as the equal of kings. The
death of a jealous lover was an easy and grateful sacrifice; and,
as Helmichis issued from the bath, he received the deadly potion
from the hand of his mistress. The taste of the liquor, its
speedy operation, and his experience of the character of
Rosamond, convinced him that he was poisoned: he pointed his
dagger to her breast, compelled her to drain the remainder of the
cup, and expired in a few minutes, with the consolation that she
could not survive to enjoy the fruits of her wickedness. The
daughter of Alboin and Rosamond, with the richest spoils of the
Lombards, was embarked for Constantinople: the surprising
strength of Peredeus amused and terrified the Imperial court: ^*
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