[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 VII.

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

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

[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 1781: 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 (800,000 L.) the damages of Sicily, (Divinatio in Caecilium, c. 5,) which he afterwards reduced to quadringenties, (320,000 L.—1 Actio in Verrem, c. 18,) and was finally content with tricies, (24,000l L.) Plutarch (in Ciceron. tom. iii. p. 1584) has not dissembled the popular suspicion and report.]

[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 VIII.

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

[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: [2111] his blindness and revenge exhibited an imperfect copy of the adventures of Samson. By the free suffrage of the nation, in the assembly of Pavia, Clepho, one of their noblest chiefs, was elected as the successor of Alboin. Before the end of eighteen months, the throne was polluted by a second murder: Clepho was stabbed by the hand of a domestic; the regal office was suspended above ten years during the minority of his son Autharis; and Italy was divided and oppressed by a ducal aristocracy of thirty tyrants. [22]