Insufficient remedies followed with distant and tardy steps the rapid progress of the evil. The ancient worship of the Romans afforded a peculiar goddess to hear and reconcile the complaints of a married life; but her epithet of viriplaca, the appeaser of husbands, too clearly indicates on which side submission and repentance were always expected. Every act of a citizen was subject to the judgment of the censors; the first who used the privilege of divorce assigned at their command the motives of his conduct; and a senator was expelled for dismissing his virgin spouse without the knowledge or advice of his friends. Whenever an action was instituted for the recovery of a marriage portion, the praetor, as the guardian of equity, examined the cause and the characters, and gently inclined the scale in favor of the guiltless and injured party. Augustus, who united the powers of both magistrates, adopted their different modes of repressing or chastising the license of divorce.

The presence of seven Roman witnesses was required for the validity of this solemn and deliberate act: if any adequate provocation had been given by the husband, instead of the delay of two years, he was compelled to refund immediately, or in the space of six months; but if he could arraign the manners of his wife, her guilt or levity was expiated by the loss of the sixth or eighth part of her marriage portion. The Christian princes were the first who specified the just causes of a private divorce; their institutions, from Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the Church, and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects. In the most rigorous laws, a wife was condemned to support a gamester, a drunkard, or a libertine, unless he were guilty of homicide, poison, or sacrilege, in which cases the marriage, as it should seem, might have been dissolved by the hand of the executioner.

But the sacred right of the husband was invariably maintained, to deliver his name and family from the disgrace of adultery: the list of mortal sins, either male or female, was curtailed and enlarged by successive regulations, and the obstacles of incurable impotence, long absence, and monastic profession were allowed to rescind the matrimonial obligation. Whoever transgressed the permission of the law was subject to various and heavy penalties. The woman was stripped of her wealth and ornaments, without excepting the bodkin of her hair: if the man introduced a new bride into his bed, her fortune might be lawfully seized by the vengeance of his exiled wife. Forfeiture was sometimes commuted to a fine; the fine was sometimes aggravated by transportation to an island or imprisonment in a monastery; the injured party was released from the bonds of marriage; but the offender during life or a term of years was disabled from the repetition of nuptials. The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent: the civilians were unanimous, the theologians were divided, and the ambiguous word, which contains the precept of Christ, is flexible to any interpretation that the wisdom of a legislator can demand.

The freedom of love and marriage was restrained among the Romans by natural and civil impediments. An instinct, almost innate and universal, appears to prohibit the incestuous commerce of parents and children in the infinite series of ascending and descending generations. Concerning the oblique and collateral branches nature is indifferent, reason mute, and custom various and arbitrary. In Egypt the marriage of brothers and sisters was admitted without scruple or exception: a Spartan might espouse the daughter of his father, an Athenian that of his mother; and the nuptials of an uncle with his niece were applauded at Athens as a happy union of the dearest relations.

The profane law-givers of Rome were never tempted by interest or superstition to multiply the forbidden degrees: but they inflexibly condemned the marriage of sisters and brothers, hesitated whether first cousins should be touched by the same interdict; revered the parental character of aunts and uncles, and treated affinity and adoption as a just imitation of the ties of blood. According to the proud maxims of the republic, a legal marriage could only be contracted by free citizens; an honorable, at least an ingenuous birth, was required for the spouse of a senator: but the blood of kings could never mingle in legitimate nuptials with the blood of a Roman; and the name of Stranger degraded Cleopatra and Berenice to live the concubines of Mark Antony and Titus. This appellation, indeed, so injurious to the majesty, cannot without indulgence be applied to the manners of these oriental queens. A concubine, in the strict sense of the civilian, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued in a state of celibacy. Her modest station, below the honors of a wife, above the infamy of a prostitute, was acknowledged and approved by the laws: from the age of Augustus to the tenth century, the use of this secondary marriage prevailed both in the West and East; and the humble virtues of a concubine were often preferred to the pomp and insolence of a noble matron. In this connection the two Antonines, the best of princes and of men, enjoyed the comforts of domestic love; the example was imitated by many citizens impatient of celibacy, but regardful of their families. If at any time they desired to legitimate their natural children, the conversion was instantly performed by the celebration of their nuptials with a partner whose fruitfulness and fidelity they had already tried.[31] By this epithet of natural, the offspring of the concubine were distinguished from the spurious brood of adultery, prostitution, and incest, to whom Justinian reluctantly grants the necessary aliments of life; and these natural children alone were capable of succeeding to a sixth part of the inheritance of their reputed father. According to the rigor of law, bastards were entitled to the name and condition of their mother, from whom they might derive the character of a slave, a stranger, or a citizen. The outcasts of every family were adopted without reproach as the children of the State.

The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the Institutes and Pandects, is of a very simple and uniform nature. The person and property of an orphan must always be trusted to the custody of some discreet friend. If the deceased father had not signified his choice, the agnats, or paternal kindred of the nearest degree, were compelled to act as the natural guardians: the Athenians were apprehensive of exposing the infant to the power of those most interested in his death; but an axiom of Roman jurisprudence has pronounced that the charge of tutelage should constantly attend the emolument of succession. If the choice of the father and the line of consanguinity afforded no efficient guardian, the failure was supplied by the nomination of the praetor of the city or the president of the province. But the person whom they named to this public office might be legally excused by insanity or blindness, by ignorance or inability, by previous enmity or adverse interest, by the number of children or guardianships with which he was already burdened and by the immunities which were granted to the useful labors of magistrates, lawyers, physicians, and professors.

Till the infant could speak and think he was represented by the tutor, whose authority was finally determined by the age of puberty. Without his consent no act of the pupil could bind himself to his own prejudice, though it might oblige others for his personal benefit. It is needless to observe that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. The age of puberty had been rashly fixed by the civilians at fourteen; but as the faculties of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of a Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the praetor, to save a family from the blind havoc of a prodigal or madman; and the minor was compelled by the laws to solicit the same protection, to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians; a sex created to please and obey was never supposed to have attained the age of reason and experience. Such, at least, was the stern and haughty spirit of the law, which had been insensibly mollified before the time of Justinian.

II. The original right of property can only be justified by the accident or merit of prior occupancy; and on this foundation it is wisely established by the philosophy of the civilians. The savage who hollows a tree, inserts a sharp stone into a wooden handle, or applies a string to an elastic branch becomes in a state of nature the just proprietor of the canoe, the bow, or the hatchet. The materials were common to all, the new form, the produce of his time and simple industry, belong solely to himself. His hungry brethren cannot, without a sense of their own injustice, extort from the hunter the game of the forest overtaken or slain by his personal strength and dexterity. If his provident care preserves and multiplies the tame animals, whose nature is tractable to the arts of education, he acquires a perpetual title to the use and service of their numerous progeny, which derives its existence from him alone. If he encloses and cultivates a field for their sustenance and his own, a barren waste is converted into a fertile soil; the seed, the manure, the labor, create a new value, and the rewards of harvest are painfully earned by the fatigues of the revolving year.

In the successive states of society the hunter, the shepherd, the husbandman, may defend their possessions by two reasons which forcibly appeal to the feelings of the human mind: that whatever they enjoy is the fruit of their own industry; and that every man who envies their felicity may purchase similar acquisitions by the exercise of similar diligence. Such, in truth, may be the freedom and plenty of a small colony cast on a fruitful island. But the colony multiplies, while the space still continues the same; the common rights, the equal inheritance of mankind, are engrossed by the bold and crafty; each field and forest is circumscribed by the landmarks of a jealous master; and it is the peculiar praise of the Roman jurisprudence that it asserts the claim of the first occupant to the wild animals of the earth, the air, and the waters. In the progress from primitive equity to final injustice, the steps are silent, the shades are almost imperceptible, and the absolute monopoly is guarded by positive laws and artificial reason. The active, insatiable principle of self-love can alone supply the arts of life and the wages of industry; and as soon as civil government and exclusive property have been introduced, they become necessary to the existence of the human race.

Except in the singular institutions of Sparta, the wisest legislators have disapproved an agrarian law as a false and dangerous innovation. Among the Romans the enormous disproportion of wealth surmounted the ideal restraints of a doubtful tradition and an obsolete statute; a tradition that the poorest follower of Romulus had been endowed with the perpetual inheritance of two jugera; a statute which confined the richest citizen to the measure of five hundred jugera, or three hundred and twelve acres of land. The original territory of Rome consisted only of some miles of wood and meadow along the banks of the Tiber, and domestic exchange could add nothing to the national stock. But the goods of an alien or enemy were lawfully exposed to the first hostile occupier; the city was enriched by the profitable trade of war, and the blood of her sons was the only price that was paid for the Volscian sheep, the slaves of Britain, to the gems and gold of Asiatic kingdoms. In the language of ancient jurisprudence, which was corrupted and forgotten before the age of Justinian, these spoils were distinguished by the name of manceps or mancipium, taken with the hand; and whenever they were sold or emancipated, the purchaser required some assurance that they had been the property of an enemy and not of a fellow-citizen.

A citizen could only forfeit his rights by apparent dereliction, and such dereliction of a valuable interest could not easily be presumed. Yet, according to the Twelve Tables, a prescription of one year for movables, and of two years for immovables, abolished the claim of the ancient master, if the actual possessor had acquired them by a fair transaction from the person whom he believed to be the lawful proprietor.[32] Such conscientious injustice, without any mixture of fraud or force could seldom injure the members of a small republic; but the various periods of three, of ten, or of twenty years, determined by Justinian, are more suitable to the latitude of a great empire. It is only in the term of prescription that the distinction of real and personal fortune has been remarked by the civilians; and their general idea of property is that of simple, uniform, and absolute dominion. The subordinate exceptions of use, of usufruct, of servitudes, imposed for the benefit of a neighbor on lands and houses, are abundantly explained by the professors of jurisprudence. The claims of property, as far as they are altered by the mixture, the division, or the transformation of substances, are investigated with metaphysical subtlety by the same civilians.

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

The order of succession is regulated by nature, or at least by the general and permanent reason of the law-giver: but this order is frequently violated by the arbitrary and partial wills, which prolong the dominion of the testator beyond the grave. 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 a father of a family are authorized by the Twelve Tables. Before the time of the decemvirs 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 law-giver 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, which excited the wonder of the Greeks, was still practised in the age of Severus, but the praetor 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. 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. 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.

Conquest and the formalities of law established the use of codicils. If a Roman was surprised by death in a remote province of the empire he addressed a short epistle to his legitimate or testamentary heir, who fulfilled with honor, or neglected with impunity, this last request, which the judges before the age of Augustus were not authorized to enforce. A codicil might be expressed in any mode, or in any language; but the subscription of five witnesses must declare that it was the genuine composition of the author. His intention, however laudable, was sometimes illegal; and the invention of fidei-commissa, or trusts, arose from the struggle between natural justice and positive jurisprudence. A stranger of Greece or Africa might be the friend or benefactor of a childless Roman, but none, except a fellow-citizen, could act as his heir.

The Voconian law, which abolished female succession, restrained the legacy or inheritance of a woman to the sum of one hundred thousand sesterces, 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. 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.

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.

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. 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.

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. 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 the 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. Usury, the inveterate grievance of the city, had been discouraged by the Twelve Tables, 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 4 per cent. 6 was pronounced to be the ordinary and legal standard of interest; 8 was allowed for the convenience of manufacturers and merchants; 12 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.[33] The most simple interest was condemned by the clergy of the East and West; but the sense of mutual benefit, which had triumphed over the laws of the republic, had resisted with equal firmness the decrees of the Church, and even the prejudices of mankind.[34]

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. 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 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. The equity of the praetors examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages the magistrate assumed the 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.

IV. The execution of the Alban dictator, who was dismembered by eight horses, is represented by Livy as the first and the last instance of Roman cruelty in the punishment of the most atrocious crimes. 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, are written in characters of blood. 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 has infected the simplicity of the republic, and the chaste virtues of the Roman matrons.[35] 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. 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.[36]

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.

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 Latian 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. 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 Tiber; 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.

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; the most bloody and wanton outrage was excused by the provocation; 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. The barbarous practice of wearing arms in the midst of peace, 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, that on refunding a thirteenth part of his plunder Verres could retire to an easy and luxurious exile.[37]

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. 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 afterward the Pompeian and Julian laws introduced a new system of criminal jurisprudence; 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. 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 burned, 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 of horses or cattle was made a capital offence, 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.

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.

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 wrong; 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 and Greeks; in the mad abuse of prosperity and power, every pleasure that is innocent was deemed insipid; and the Scatinian law, 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. 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 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.

A new spirit of legislation, respectable even in its error, arose in the empire with the religion of Constantine. 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 pederasty, 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. 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 pederasty became the crime of those to whom no crime could be imputed. A French philosopher[38] 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.

V. The free citizens of Athens and Rome enjoyed in all criminal cases the invaluable privilege of being tried by their country.

1. The administration of justice is the most ancient office of a prince: it was exercised by the Roman kings and abused by Tarquin, who alone, without law or council, pronounced his arbitrary judgments. The first consuls succeeded to this regal prerogative; but the sacred right of appeal soon abolished the jurisdiction of the magistrates, and all public causes were decided by the supreme tribunal of the people. But a wild democracy, superior to the forms, too often disdains the essential principles of justice: the pride of despotism was envenomed by plebeian envy, and the heroes of Athens might sometimes applaud the happiness of the Persian, whose fate depended on the caprice of a single tyrant. Some salutary restraints, imposed by the people on 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. 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.[39]

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.

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.[40] 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. The exquisite avarice and cruelty of Domitian appear to have deprived the unfortunate of this last consolation, and it was still denied even by the clemency of the Antonines.

A voluntary death which, in the case of a capital offence, intervened between the accusation and the sentence, was admitted as a confession of guilt, and the spoils of the deceased were seized by the inhuman claims of the treasury. Yet the civilians have always respected the natural right of a citizen to dispose of his life; and the posthumous disgrace invented by Tarquin,[41] 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 Vergil among the unfortunate rather than the guilty;[42] and the poetical fables of the infernal shades could not seriously influence the faith or practice of mankind. But the precepts of the gospel, or the Church, have at length imposed a pious servitude on the minds of Christians, and condemn them to expect, without a murmur, the last stroke of disease or the executioner.

The penal statutes form a very small proportion of the sixty-two books of the Code and Pandects; and in all judicial proceeding 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 Latian shepherd who had planted a colony on the banks of the Tiber. 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 cadi. 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.

FOOTNOTES:

[26] Among the works which have been recovered, by the persevering and successful endeavors of M. Mai and his followers to trace the imperfectly erased characters of the ancient writers on these palimpsests, Gibbon at this period of his labors would have hailed with delight the recovery of the Institutes of Gaius, and the fragments of the Theodosian Code, published by M. Peyron of Turin.

[27] Pisa was taken by the Florentines in the year 1406; and in 1411 the Pandects were transported to the capital. These events are authentic and famous.

[28] They were new bound in purple, deposited in a rich casket, and shown to curious travellers by the monks and magistrates bareheaded and with lighted tapers.

[29] Gibbon, dividing the Institutes into four parts, considers the appendix of the criminal law in the last title as a fourth part.

[30] This parental power was strictly confined to the Roman citizen. The foreigner, or he who had only jus Latii, did not possess it. If a Roman citizen unknowingly married a Latin or a foreign wife, he did not possess this power over his son, because the son, following the legal condition of the mother, was not a Roman citizen. A man, however, alleging sufficient cause for his ignorance, might raise both mother and child to the rights of citizenship.

[31] The edict of Constantine first conferred this right; for Augustus had prohibited the taking as a concubine a woman who might be taken as a wife; and if marriage took place afterward, this marriage made no change in the rights of the children born before it; recourse was then had to adoption, properly called arrogation.

[32] 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. 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.

[33] Justinian has not condescended to give usury a place in his Institutes; but the necessary rules and restrictions are inserted in the Pandects and the Code.

[34] Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to etymology, the principal is supposed to generate the interest: "A breed for barren metal," exclaims Shakspeare—and the stage is an echo of the public voice.

[35] Livy mentions two remarkable and flagitious eras, of three thousand persons accused, and of one hundred and ninety noble matrons convicted, of the crime of poisoning. Hume discriminates the ages of private and public virtue. 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.

[36] The first parricide at Rome was L. Ostius, after the Second Punic War. During the Cimbric, P. Malleolus was guilty of the first matricide.

[37] 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.

[38] Montesquieu, that eloquent philosopher, conciliates the rights of liberty and of nature, which should never be placed in opposition to each other.

[39] 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.

[40] The extension of the Empire and city of Rome obliged the exile to seek a more distant place of retirement.

[41] 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.

[42] The sole resemblance of a violent and premature death has engaged Vergil to confound suicides with infants, lovers, and persons unjustly condemned. Some of his editors are at a loss to deduce the idea or ascertain the jurisprudence of the Roman poet.



AUGUSTINE'S MISSIONARY WORK IN ENGLAND

A.D. 597

THE VENERABLE BEDE[43] JOHN RICHARD GREEN

St. Augustine was the first archbishop of Canterbury. He was educated in Rome under Pope Gregory I, by whom he was sent to Britain with forty monks of the Benedictine order, for the purpose of converting the English to Christianity. Bertha, wife of Ethelbert, king of Kent, was a Christian. She was a daughter of Charibert, king of Paris, and had brought her chaplain with her, who held services in the ruined church of St. Martin, near Canterbury.

There seemed little prospect, however, of the faith spreading among the wild islanders until Augustine arrived on the Isle of Thanet A.D. 596. The occasion of his being sent on this missionary errand is said to have been connected with an incident which has often been related, wherein it appears that Gregory, while yet a monk, struck with the beauty of some heathen Anglo-Saxon youths exposed for sale in the slave market at Rome, inquired concerning their nationality. Being told that they were Angles, he said: "Non Angli sed angeli ['Not Angles, but angels'], and well may, for their angel-like faces it becometh such to be coheirs with the angels in heaven. In what province of England do they live?" "Deira" was the reply. "From Dei ira ['God's wrath'] are they to be freed?" answered Gregory. "How call ye the king of that country?" "AElla." "Then Alleluia surely ought to be sung in his kingdom to the praise of that God who created all things," said the gracious and clever monk.

"The conversion of the English to Christianity," says Freeman, "at once altered their whole position in the world. Hitherto our history had been almost wholly insular; our heathen forefathers had had but little to do, either in war or peace, with any nations beyond their own four seas. We hear little of any connection being kept up between the Angles and Saxons who settled in Britain, and their kinsfolk who abode in their original country. By its conversion England was first brought, not only within the pale of the Christian Church, but within the pale of the general political society of Europe. But our insular position, combined with the events of our earlier history, was not without its effect on the peculiar character of Christianity as established in England. England was the first great territorial conquest of the spiritual power, beyond the limits of the Roman Empire, beyond the influence of Greek and Roman civilization."

The following account from the Ecclesiastical History of the Venerable Bede, the "father of English history," and foremost scholar of England in his age, is in the modern English rendering by Thomson, of King Alfred's famous translation, made for the instruction of the English people as the best work of that period on their own history.

As a contrast John Richard Green's treatment of the same episode is appended.

THE VENERABLE BEDE

When according to forthrunning time [it] was about five hundred and ninety-two years from Christ's hithercoming, Mauricius, the Emperor, took to the government, and had it two-and-twenty years. He was the fifty-fourth from Augustus. In the tenth year of that Emperor's reign, Gregory, the holy man, who was in lore and deed the highest, took to the bishophood of the Roman Church, and of the apostolic seat, and held and governed it thirteen years and six months and ten days. In the fourteenth year of the same Emperor, about a hundred and fifty years from the English nation's hithercoming into Britain, he was admonished by a divine impulse that he should send God's servant Augustine, and many other monks with him, fearing the Lord, to preach God's word to the English nation.

When they obeyed the bishop's commands, and began to go to the mentioned work, and had gone some deal of the way, then began they to fear and dread the journey, and thought that it was wiser and safer for them that they should rather return home than seek the barbarous people, and the fierce and the unbelieving, even whose speech they knew not; and in common chose this advice to themselves; and then straightway sent Augustine (whom they had chosen for their bishop if their doctrines should be received) to the Pope, that he might humbly intercede for them, that they might not need to go upon a journey so perilous and so toilsome, and a pilgrimage so unknown.

Then St. Gregory sent a letter to them, and exhorted and advised them in that letter: that they should humbly go into the work of God's word, and trust in God's help; and that they should not fear the toil of the journey, nor dread the tongues of evil-speaking men; but that, with all earnestness, and with the love of God, they should perform the good things which they by God's help had begun to do; and that they should know that the great toil would be followed by the greater glory of everlasting life; and he prayed Almighty God that he would shield them by his grace; and that he would grant to himself that he might see the fruit of their labor in the heavenly kingdom's glory, because he was ready to be in the same labor with them, if leave had been given him.

Then Augustine was strengthened by the exhortation of the blessed father Gregory, and with Christ's servants who were with him returned to the work of God's word, and came into Britain. Then was at that time Ethelbert king in Kent, and a mighty one, who had rule as far as the boundary of the river Humber, which sheds asunder the south folk of the English nation and the north folk. Then [there] is on the eastward of Kent a great island [Thanet by name], which is six hundred hides large, after the English nation's reckoning. The isle is shed away from the continuous land by the stream Wantsum, which is three furlongs broad, and in two places is fordable, and either end lies in the sea. On this isle came up Christ's servant Augustine and his fellows—he was one of forty. They likewise took with them interpreters from Frankland [France], as St. Gregory bade them; and he sent messengers to Ethelbert, and let him know that he came from Rome, and brought the best errand, and whosoever would be obedient to him, he promised him everlasting gladness in heaven, and a kingdom hereafter without end, with the true and living God.

When [he then] the King heard these words, then ordered he them to abide in the isle on which they had come up; and their necessaries to be there given them until he should see what he would do to them. Likewise before that a report of the Christian religion had come to him, for he had a Christian wife, who was given to him from the royal kin of the Franks—Bertha was her name; which woman he received from her parents on condition that she should have his leave that she might hold the manner of the Christian belief, and of her religion, unspotted, with the bishop whom they gave her for the help of that faith; whose name was Luidhard.

Then [it] was after many days that the King came to the isle, and ordered to make a seat for him out [of doors], and ordered Augustine with his fellows to come to his speech (a conference). He guarded himself lest they should go into any house to him; he used the old greeting, in case they had any magic whereby they should overcome and deceive him. But they came endowed—not with devil-craft, but with divine might. They bore Christ's rood-token—a silvern cross of Christ and a likeness of the Lord Jesus colored and delineated on a board; and were crying the names of holy men; and singing prayers together, made supplication to the Lord for the everlasting health of themselves and of those to whom they come.

Then the King bade them sit, and they did so; and they soon preached and taught the word of life to him, together with all his peers who were there present. Then answered the King, and thus said: Fair words and promises are these which ye have brought and say to us; but because they are new and unknown, we cannot yet agree that we should forsake the things which we for a long time, with all the English nation, have held.

But because ye have come hither as pilgrims from afar, and since it seems and is evident to me that ye wished to communicate to us also the things which ye believed true and best, we will not therefore be heavy to you, but will kindly receive you in hospitality, and give you a livelihood, and supply your needs. Nor will we hinder you from joining and adding to the religion of your belief all whom you can through your lore.

Then the King gave them a dwelling and a place in Canterbury, which was the chief city of all his kingdom, and as he had promised to give them a livelihood and their worldly needs, he likewise gave them leave that they might preach and teach the Christian faith. It is said that when they went and drew nigh to the city, as their custom was, with Christ's holy cross, and with the likeness of the great King our Lord Jesus Christ, they sung with a harmonious voice this Litany and Antiphony: Deprecamur te, etc. "We beseech thee, Lord, in all thy mercy, that thy fury and thy wrath be taken off from this city and [from] thy holy house, because we have sinned. Alleluia."

Then it was soon after they had entered into the dwelling place which had been granted to them in the royal city, when they began to imitate the apostolic life of the primitive church—that is, served the Lord in constant prayers, and waking and fasting, and preached and taught God's word to whom they might, and slighted all things of this world as foreign; but those things only which were seen [to be] needful for their livelihood they received from those whom they taught; according to that which they taught, they [themselves] through everything lived; and they had a ready mind to suffer adversity, yea likewise death [it] self, for the truth which they preached and taught. Then was no delay that many believed and were baptized. They also wondered at the simplicity of [their] harmless life and the sweetness of their heavenly lore.

There was by east well-nigh the city a church built in honor of St. Martin long ago, while the Romans yet dwelt in Britain [in which church the Queen (was) wont to pray, of whom we said before that she was a Christian]. In this church at first the holy teachers began to meet and sing and pray, and do mass-song, and teach men and baptize, until the King was converted to the faith, and they obtained more leave to teach everywhere, and to build and repair churches.

Then came it about through the grace of God that the King likewise among others began to delight in the cleanest life of holy [men] and their sweetest promises, and they also gave confirmation that those were true by the showing of many wonders; and he then, being glad, was baptized. Then began many daily to hasten and flock together to hear God's word, and to forsake the manner of heathenism, and joined themselves, through belief, to the oneness of Christ's holy Church. Of their belief and conversion [it] is said that the King was so evenly glad that he, however, forced none to the Christian manner [of worship], but that those who turned to belief and to baptism he more inwardly loved, as they were fellow-citizens of the heavenly kingdom. For he had learnt from his teachers and from the authors of his health that Christ's service should be of good will, not of compulsion. And he then, the King, gave and granted to his teachers a place and settlement suitable to their condition, in his chief city, and thereto gave their needful supplies in various possessions.

During these things the holy man Augustine fared over sea, and came to the city Arles, and by AEtherius, archbishop of the said city, according to the behest and commandment of the blessed father St. Gregory, was hallowed archbishop of the English people, and returned and fared into Britain, and soon sent messengers to Rome, that was Laurence a mass-priest and Peter a monk, that they should say and make known to the blessed St. Gregory that the English nation had received Christ's belief, and that he had been consecrated as bishop. He likewise requested his advice about many causes and questions which were seen by him [to be] needful; and he soon sent suitable answers of them.

Asked by St. Augustine, bishop of the church of Canterbury: First, of bishops, how they shall behave and live with their fellows. Next, on the gifts of the faithful which they bring to holy tables and to God's churches—how many doles of them shall be?

Answered by Pope St. Gregory: Holy writ makes it known, quoth he, which I have no doubt thou knowest, and sunderly the blessed Paul's epistle, which he wrote to Timothy, in which he earnestly trained and taught him how he should behave and do in God's house. For it is the manner of the apostolic seat, when they hallow bishops, that they give them commandments, and that of all the livelihood which comes in to them there shall be four doles. One, in the first place, to the bishop and his family for food, and entertainment of guests and comers; a second dole to God's servants; a third to the needy; the fourth to renewing and repair of God's church. But because thy brotherliness has been trained and taught in monastic rules, thou shalt not, however, be asunder from thy fellows in the English church, which now yet is newly come and led to the faith of God. This behavior and this life thou shalt set up, which our fathers had in the beginning of the new-born church, when none of them said aught of that which they owned was his in sunder; but they all had all things common. If, then, any priests or God's servants are settled without holy orders, let those who cannot withhold themselves from women take them wives, and receive their livelihood outside. For of the same fathers, of whom we spoke before, [it] is written that they dealt their worldly goods to sundry men as every [one] had need.

Likewise concerning their livelihood it is to be thought and foreseen (i.e., provided) that they live in good manners under ecclesiastical rules, and sing psalms and keep wakes and hold their hearts and tongues and bodies clean from all forbidden [things] to Almighty God. But, as to those living in common life, what have we to say how they deal their alms, or exercise hospitality, and fulfil mercy? since all that is left over in their worldly substance is to be reached and given to the pious and good, as the master of all, our Lord Christ, taught and said: Quod superest, etc. "What is over and left, give alms, and to you are all [things] clean."

Asked by St. Augustine: Since there is one faith, and are various customs of churches, there is one custom of mass-song in the holy Roman Church, and another is had in the kingdom of Gaul.

Answered by Pope St. Gregory: Thou thyself knowest the manner and custom of the Roman Church, in which thou wert reared; but now it seems good, and is more agreeable to me, that whatsoever thou hast found either in the Roman Church or in Gaul, or in any other [church], that was more pleasing to Almighty God, thou should carefully choose that, and set it to be held fast in the Church of the English nation, which now yet is new in the faith. For the things are not to be loved for places; but the places for good things. Therefore what things thou choosest as pious, good, and right from each of sundry churches, these gather thou together, and settle into a custom in the mind of the English nation.

Asked by Augustine: I pray thee, what punishment shall he suffer—whosoever takes away anything by stealth from a church?

Answered by Gregory: This may thy brotherliness determine from the thief's condition, how he may be corrected. For there are some who have worldly wealth, and yet commit theft; there are some who are in this wise guilty through poverty. Therefore need is that some be corrected by waning of their worldly goods, some by stripes; some more sternly, some more mildly. And though the punishment be inflicted a little harder or sterner, yet it is to be done of love, not of wrath nor of fury; because through the throes of this is procured to the man that he be not given to the everlasting fires of hell-torments. For in this manner we ought to punish men, as the good fathers are wont [to do] their fleshly children, whom they chide and swinge for their sins; and yet those same whom they chide and chastise by these pains they also love, and wish to have for their heirs, and for them hold their worldly goods which they possess, whom they seem in anger to persecute and torment. For love is ever to be held in the mind, and it dictates and determines the measure of the chastisement, so that the mind does nothing at all beside the right rule. Thou likewise addest in thy inquiry, how those things should be compensated which have been taken away from a church by theft. But, oh! far be it that God's Church should receive with increase what she seems to let alone of earthly things, and seek worldly gain by vain things.

Asked by Bishop St. Augustine: At what generation shall Christian people be joined among themselves in marriage with their kinsfolk?... Answered by St. Gregory: ... But because there are many in the English nation [who], while they were then yet in unbelief, are said to have been joined together in this sinful marriage,[44] now they are to be admonished, since they have come to the faith, that they hold themselves off from such iniquities, and understand that it is a heavy sin, and dread the awful doom of God, lest they for fleshly love receive the torments of everlasting death. They are not, however, for this cause to be deprived of the communion of Christ's body and blood, lest this thing may seem to be revenged on them, in which they through unwittingness sinned before the bath of baptism. For at this time the Holy Church corrects some things through zeal, bears with some through mildness, overlooks some through consideration, and so bears and overlooks that often by bearing and overlooking she checks the opposing evil. All those who come to the faith of Christ are to be reminded that they may not dare to commit any such thing. But, if any shall commit them, then are they to be deprived of Christ's body and blood; for, as some little is to be borne with in regard to those men who through unwittingness commit sin, so on the other hand it is to be strongly pursued in those who dread not to sin wittingly.

Asked by Bishop St. Augustine: If a great distance of journey lies between, so that bishops may not easily come, whether may a bishop be hallowed without the presence of other bishops.

Answered by Gregory: In the English Church, indeed, in which thou alone as yet art found a bishop, thou canst not hallow a bishop otherwise than without other bishops; but bishops must come to thee out of the kingdom of Gaul, that they may stand as witness at the bishop's hallowing, for the hallowing of bishops must not be otherwise than in the assembling and witnessing of three or four bishops, that they may send [up] and pour [forth] their petitions and prayers to the Almighty God for his favor.

Asked by Augustine: How must we do with the bishops of Gaul and Britain?

Answered by Pope Gregory: Over the bishops of Gaul we give thee no authority, because from the earlier times of my predecessors the bishop of the city Arles received the pallium, whom we ought not to degrade nor to deprive of the received authority. But, if thou happen to go into the province of Gaul, have thou a conference and consultation with the said bishop what is to be done, or, if any vices are found in bishops, how they shall be corrected and reformed; and if there be a supposition that he is too lukewarm in the vigor of his discipline and chastisement, then is he to be inflamed and abetted by thy brotherliness's love,[45] that he may ward off those things which are contrary to the behest and commands of our Maker, from the manners of the bishops. Thou mayest not judge the bishops of Gaul without their own authority; but thou shalt mildly admonish them, and show them the imitation of thy good works. All the bishops of Britain we commend to thy brotherliness, in order that the unlearned may be taught, the weak strengthened by thy exhortation, and the perverse corrected by thy authority.[46]

Augustine likewise bade [his messengers] acquaint him that a great harvest was here present and few workmen. And he then sent with the aforesaid messengers more help to him for divine learning, among whom the first and greatest were Mellitus and Justus and Paulinus and Rufinianus, and by them generally all those things which were needful for the worship and service of the Church—communion vessels, altar-cloth, and church ornaments, and bishops' robes, and deacons' robes, as also reliques of the apostles and holy martyrs, and many books. He likewise sent to Augustine the bishop a pallium, and a letter in which he intimated how he should hallow other bishops, and in what places [he should] set them in Britain.