Decline and Fall of the Roman Empire, Vol. 4
by Edward Gibbon
Hypertext Meanings and Commentaries
from the Encyclopedia of the Self
by Mark Zimmerman
Return to Part 1 of 2

[Footnote 55: Perturbatricem autem omnium harum rerum academiam,
hanc ab Arcesila et Carneade recentem, exoremus ut sileat, nam si
invaserit in haec, quae satis scite instructa et composita
videantur, nimis edet ruinas, quam quidem ego placare cupio,
submovere non audeo. (de Legibus, i. 13.) From this passage
alone, Bentley (Remarks on Free-thinking, p. 250) might have
learned how firmly Cicero believed in the specious doctrines
which he has adorned.]
[Footnote 56: The stoic philosophy was first taught at Rome by
Panaetius, the friend of the younger Scipio, (see his life in the
Mem. de l'Academis des Inscriptions, tom. x. p. 75 - 89.)]

[Footnote 57: As he is quoted by Ulpian, (leg.40, 40, ad Sabinum
in Pandect. l. xlvii. tit. ii. leg. 21.) Yet Trebatius, after he
was a leading civilian, que qui familiam duxit, became an
epicurean, (Cicero ad Fam. vii. 5.) Perhaps he was not constant
or sincere in his new sect.

     Note: Gibbon had entirely misunderstood this phrase of
Cicero. It was only since his time that the real meaning of the
author was apprehended. Cicero, in enumerating the qualifications
of Trebatius, says, Accedit etiam, quod familiam ducit in jure
civili, singularis memoria, summa scientia, which means that
Trebatius possessed a still further most important qualification
for a student of civil law, a remarkable memory, &c. This
explanation, already conjectured by G. Menage, Amaenit. Juris
Civilis, c. 14, is found in the dictionary of Scheller, v.
Familia, and in the History of the Roman Law by M. Hugo. Many
authors have asserted, without any proof sufficient to warrant
the conjecture, that Trebatius was of the school of Epicurus -
W.]
[Footnote 58: See Gravina (p. 45 - 51) and the ineffectual cavils
of Mascou. Heineccius (Hist. J. R. No. 125) quotes and approves a
dissertation of Everard Otto, de Stoica Jurisconsultorum
Philosophia.]

     Arms, eloquence, and the study of the civil law, promoted a
citizen to the honors of the Roman state; and the three
professions were sometimes more conspicuous by their union in the
same character. In the composition of the edict, a learned
praetor gave a sanction and preference to his private sentiments;
the opinion of a censor, or a counsel, was entertained with
respect; and a doubtful interpretation of the laws might be
supported by the virtues or triumphs of the civilian. The
patrician arts were long protected by the veil of mystery; and in
more enlightened times, the freedom of inquiry established the
general principles of jurisprudence. Subtile and intricate cases
were elucidated by the disputes of the forum: rules, axioms, and
definitions, ^59 were admitted as the genuine dictates of reason;
and the consent of the legal professors was interwoven into the
practice of the tribunals. But these interpreters could neither
enact nor execute the laws of the republic; and the judges might
disregard the authority of the Scaevolas themselves, which was
often overthrown by the eloquence or sophistry of an ingenious
pleader. ^60 Augustus and Tiberius were the first to adopt, as a
useful engine, the science of the civilians; and their servile
labors accommodated the old system to the spirit and views of
despotism. Under the fair pretence of securing the dignity of the
art, the privilege of subscribing legal and valid opinions was
confined to the sages of senatorian or equestrian rank, who had
been previously approved by the judgment of the prince; and this
monopoly prevailed, till Adrian restored the freedom of the
profession to every citizen conscious of his abilities and
knowledge. The discretion of the praetor was now governed by the
lessons of his teachers; the judges were enjoined to obey the
comment as well as the text of the law; and the use of codicils
was a memorable innovation, which Augustus ratified by the advice
of the civilians. ^61 ^*

[Footnote 59: We have heard of the Catonian rule, the Aquilian
stipulation, and the Manilian forms, of 211 maxims, and of 247
definitions, (Pandect. l. i. tit. xvi. xvii.)]

[Footnote 60: Read Cicero, l. i. de Oratore, Topica, pro Murena.]

[Footnote 61: See Pomponius, (de Origine Juris Pandect. l. i.
tit. ii. leg. 2, No 47,) Heineccius, (ad Institut. l. i. tit. ii.
No. 8, l. ii. tit. xxv. in Element et Antiquitat.,) and Gravina,
(p. 41 - 45.) Yet the monopoly of Augustus, a harsh measure,
would appear with some softening in contemporary evidence; and it
was probably veiled by a decree of the senate]
[Footnote *: The author here follows the then generally received
opinion of Heineccius. The proofs which appear to confirm it are
l. 2,  47, D. I. 2, and  8. Instit. I. 2. The first of these
passages speaks expressly of a privilege granted to certain
lawyers, until the time of Adrian, publice respondendi jus ante
Augusti tempora non dabatur. Primus Divus Augustus, ut major
juris auctoritas haberetur, constituit, ut ex auctoritate ejus
responderent. The passage of the Institutes speaks of the
different opinions of those, quibus est permissum jura condere.
It is true that the first of these passages does not say that the
opinion of these privileged lawyers had the force of a law for
the judges. For this reason M. Hugo altogether rejects the
opinion adopted by Heineccius, by Bach, and in general by all the
writers who preceded him. He conceives that the  8 of the
Institutes referred to the constitution of Valentinian III.,
which regulated the respective authority to be ascribed to the
different writings of the great civilians. But we have now the
following passage in the Institutes of Gaius: Responsa prudentum
sunt sententiae et opiniones eorum, quibus permissum est jura
condere; quorum omnium si in unum sententiae concorrupt, id quod
ita sentiunt, legis vicem obtinet, si vero dissentiunt, judici
licet, quam velit sententiam sequi, idque rescripto Divi Hadrian
signiticatur. I do not know, how in opposition to this passage,
the opinion of M. Hugo can be maintained. We must add to this the
passage quoted from Pomponius and from such strong proofs, it
seems incontestable that the emperors had granted some kind of
privilege to certain civilians, quibus permissum erat jura
condere. Their opinion had sometimes the force of law, legis
vicem. M. Hugo, endeavoring to reconcile this phrase with his
system, gives it a forced interpretation, which quite alters the
sense; he supposes that the passage contains no more than what is
evident of itself, that the authority of the civilians was to be
respected, thus making a privilege of that which was free to all
the world. It appears to me almost indisputable, that the
emperors had sanctioned certain provisions relative to the
authority of these civilians, consulted by the judges. But how
far was their advice to be respected? This is a question which
it is impossible to answer precisely, from the want of historic
evidence. Is it not possible that the emperors established an
authority to be consulted by the judges? and in this case this
authority must have emanated from certain civilians named for
this purpose by the emperors. See Hugo, l. c. Moreover, may not
the passage of Suetonius, in the Life of Caligula, where he says
that the emperor would no longer permit the civilians to give
their advice, mean that Caligula entertained the design of
suppressing this institution? See on this passage the Themis,
vol. xi. p. 17, 36. Our author not being acquainted with the
opinions opposed to Heineccius has not gone to the bottom of the
subject. - W.]

     The most absolute mandate could only require that the judges
should agree with the civilians, if the civilians agreed among
themselves. But positive institutions are often the result of
custom and prejudice; laws and language are ambiguous and
arbitrary; where reason is incapable of pronouncing, the love of
argument is inflamed by the envy of rivals, the vanity of
masters, the blind attachment of their disciples; and the Roman
jurisprudence was divided by the once famous sects of the
Proculians and Sabinians. ^62 Two sages of the law, Ateius Capito
and Antistius Labeo, ^63 adorned the peace of the Augustan age;
the former distinguished by the favor of his sovereign; the
latter more illustrious by his contempt of that favor, and his
stern though harmless opposition to the tyrant of Rome. Their
legal studies were influenced by the various colors of their
temper and principles. Labeo was attached to the form of the old
republic; his rival embraced the more profitable substance of the
rising monarchy. But the disposition of a courtier is tame and
submissive; and Capito seldom presumed to deviate from the
sentiments, or at least from the words, of his predecessors;
while the bold republican pursued his independent ideas without
fear of paradox or innovations. The freedom of Labeo was
enslaved, however, by the rigor of his own conclusions, and he
decided, according to the letter of the law, the same questions
which his indulgent competitor resolved with a latitude of equity
more suitable to the common sense and feelings of mankind. If a
fair exchange had been substituted to the payment of money,
Capito still considered the transaction as a legal sale; ^64 and
he consulted nature for the age of puberty, without confining his
definition to the precise period of twelve or fourteen years. ^65
This opposition of sentiments was propagated in the writings and
lessons of the two founders; the schools of Capito and Labeo
maintained their inveterate conflict from the age of Augustus to
that of Adrian; ^66 and the two sects derived their appellations
from Sabinus and Proculus, their most celebrated teachers. The
names of Cassians and Pegasians were likewise applied to the same
parties; but, by a strange reverse, the popular cause was in the
hands of Pegasus, ^67 a timid slave of Domitian, while the
favorite of the Caesars was represented by Cassius, ^68 who
gloried in his descent from the patriot assassin. By the
perpetual edict, the controversies of the sects were in a great
measure determined. For that important work, the emperor Adrian
preferred the chief of the Sabinians: the friends of monarchy
prevailed; but the moderation of Salvius Julian insensibly
reconciled the victors and the vanquished. Like the contemporary
philosophers, the lawyers of the age of the Antonines disclaimed
the authority of a master, and adopted from every system the most
probable doctrines. ^69 But their writings would have been less
voluminous, had their choice been more unanimous. The conscience
of the judge was perplexed by the number and weight of discordant
testimonies, and every sentence that his passion or interest
might pronounce was justified by the sanction of some venerable
name. An indulgent edict of the younger Theodosius excused him
from the labor of comparing and weighing their arguments. Five
civilians, Caius, Papinian, Paul, Ulpian, and Modestinus, were
established as the oracles of jurisprudence: a majority was
decisive: but if their opinions were equally divided, a casting
vote was ascribed to the superior wisdom of Papinian. ^70
[Footnote 62: I have perused the Diatribe of Gotfridus Mascovius,
the learned Mascou, de Sectis Jurisconsultorum, (Lipsiae, 1728,
in 12mo., p. 276,) a learned treatise on a narrow and barren
ground.]

[Footnote 63: See the character of Antistius Labeo in Tacitus,
(Annal. iii. 75,) and in an epistle of Ateius Capito, (Aul.
Gellius, xiii. 12,) who accuses his rival of libertas nimia et
vecors. Yet Horace would not have lashed a virtuous and
respectable senator; and I must adopt the emendation of Bentley,
who reads Labieno insanior, (Serm. I. iii. 82.) See Mascou, de
Sectis, (c. i. p. 1 - 24.)]

[Footnote 64: Justinian (Institut. l. iii. tit. 23, and Theophil.
Vers. Graec. p. 677, 680) has commemorated this weighty dispute,
and the verses of Homer that were alleged on either side as legal
authorities. It was decided by Paul, (leg. 33, ad Edict. in
Pandect. l. xviii. tit. i. leg. 1,) since, in a simple exchange,
the buyer could not be discriminated from the seller.]
[Footnote 65: This controversy was likewise given for the
Proculians, to supersede the indecency of a search, and to comply
with the aphorism of Hippocrates, who was attached to the
septenary number of two weeks of years, or 700 of days,
(Institut. l. i. tit. xxii.) Plutarch and the Stoics (de Placit.
Philosoph. l. v. c. 24) assign a more natural reason. Fourteen
years is the age. See the vestigia of the sects in Mascou, c.
ix. p. 145 - 276.]
[Footnote 66: The series and conclusion of the sects are
described by Mascou, c. ii. - vii. p. 24 - 120;) and it would be
almost ridiculous to praise his equal justice to these obsolete
sects.

     Note: The work of Gaius, subsequent to the time of Adrian,
furnishes us with some information on this subject. The disputes
which rose between these two sects appear to have been very
numerous. Gaius avows himself a disciple of Sabinus and of
Caius. Compare Hugo, vol. ii. p. 106. - W.]
[Footnote 67: At the first summons he flies to the
turbot-council; yet Juvenal (Satir. iv. 75 - 81) styles the
praefect or bailiff of Rome sanctissimus legum interpres. From
his science, says the old scholiast, he was called, not a man,
but a book. He derived the singular name of Pegasus from the
galley which his father commanded.]

[Footnote 68: Tacit. Annal. xvii. 7. Sueton. in Nerone, c.
xxxvii.]
[Footnote 69: Mascou, de Sectis, c. viii. p. 120 - 144 de
Herciscundis, a legal term which was applied to these eclectic
lawyers: herciscere is synonymous to dividere.

     Note: This word has never existed. Cujacius is the author
of it, who read me words terris condi in Servius ad Virg.
herciscundi, to which he gave an erroneous interpretation. - W.]

[Footnote 70: See the Theodosian Code, l. i. tit. iv. with
Godefroy's Commentary, tom. i. p. 30 - 35. ^! This decree might
give occasion to Jesuitical disputes like those in the Lettres
Provinciales, whether a Judge was obliged to follow the opinion
of Papinian, or of a majority, against his judgment, against his
conscience, &c. Yet a legislator might give that opinion,
however false, the validity, not of truth, but of law.
     Note: We possess (since 1824) some interesting information
as to the framing of the Theodosian Code, and its ratification at
Rome, in the year 438. M. Closius, now professor at Dorpat in
Russia, and M. Peyron, member of the Academy of Turin, have
discovered, the one at Milan, the other at Turin, a great part of
the five first books of the Code which were wanting, and besides
this, the reports (gesta) of the sitting of the senate at Rome,
in which the Code was published, in the year after the marriage
of Valentinian III. Among these pieces are the constitutions
which nominate commissioners for the formation of the Code; and
though there are many points of considerable obscurity in these
documents, they communicate many facts relative to this
legislation.

     1. That Theodosius designed a great reform in the
legislation; to add to the Gregorian and Hermogenian codes all
the new constitutions from Constantine to his own day; and to
frame a second code for common use with extracts from the three
codes, and from the works of the civil lawyers. All laws either
abrogated or fallen into disuse were to be noted under their
proper heads.
     2. An Ordinance was issued in 429 to form a commission for
this purpose of nine persons, of which Antiochus, as quaestor and
praefectus, was president. A second commission of sixteen
members was issued in 435 under the same president.

     3. A code, which we possess under the name of Codex
Theodosianus, was finished in 438, published in the East, in an
ordinance addressed to the Praetorian praefect, Florentinus, and
intended to be published in the West.
     4. Before it was published in the West, Valentinian
submitted it to the senate. There is a report of the proceedings
of the senate, which closed with loud acclamations and
gratulations. - From Warnkonig, Histoire du Droit Romain, p. 169
- Wenck has published this work, Codicis Theodosiani libri
priores. Leipzig, 1825. - M.]

     Note *: Closius of Tubingen communicated to M.Warnkonig the
two following constitutions of the emperor Constantine, which he
discovered in the Ambrosian library at Milan: -

     1. Imper. Constantinus Aug. ad Maximium Praef. Praetorio.
     Perpetuas prudentum contentiones eruere cupientes, Ulpiani
ac Pauli, in Papinianum notas, qui dum ingenii laudem sectantur,
non tam corrigere eum quam depravere maluerunt, aboleri
praecepimus. Dat. III. Kalend. Octob. Const. Cons. et Crispi,
(321.) Idem. Aug. ad Maximium Praef Praet.
     Universa, quae scriptura Pauli continentur, recepta
auctoritate firmanda runt, et omni veneratione celebranda.
Ideoque sententiarum libros plepissima luce et perfectissima
elocutione et justissima juris ratione succinctos in judiciis
prolatos valere minimie dubitatur. Dat. V. Kalend. Oct. Trovia
Coust. et Max. Coss. (327.) - W]

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part IV.

     When Justinian ascended the throne, the reformation of the
Roman jurisprudence was an arduous but indispensable task. In
the space of ten centuries, the infinite variety of laws and
legal opinions had filled many thousand volumes, which no fortune
could purchase and no capacity could digest. Books could not
easily be found; and the judges, poor in the midst of riches,
were reduced to the exercise of their illiterate discretion. The
subjects of the Greek provinces were ignorant of the language
that disposed of their lives and properties; and the barbarous
dialect of the Latins was imperfectly studied in the academies of
Berytus and Constantinople. As an Illyrian soldier, that idiom
was familiar to the infancy of Justinian; his youth had been
instructed by the lessons of jurisprudence, and his Imperial
choice selected the most learned civilians of the East, to labor
with their sovereign in the work of reformation. ^71 The theory
of professors was assisted by the practice of advocates, and the
experience of magistrates; and the whole undertaking was animated
by the spirit of Tribonian. ^72 This extraordinary man, the
object of so much praise and censure, was a native of Side in
Pamphylia; and his genius, like that of Bacon, embraced, as his
own, all the business and knowledge of the age. Tribonian
composed, both in prose and verse, on a strange diversity of
curious and abstruse subjects: ^73 a double panegyric of
Justinian and the life of the philosopher Theodotus; the nature
of happiness and the duties of government; Homer's catalogue and
the four-and-twenty sorts of metre; the astronomical canon of
Ptolemy; the changes of the months; the houses of the planets;
and the harmonic system of the world. To the literature of
Greece he added the use of the Latin tonque; the Roman civilians
were deposited in his library and in his mind; and he most
assiduously cultivated those arts which opened the road of wealth
and preferment. From the bar of the Praetorian praefects, he
raised himself to the honors of quaestor, of consul, and of
master of the offices: the council of Justinian listened to his
eloquence and wisdom; and envy was mitigated by the gentleness
and affability of his manners. The reproaches of impiety and
avarice have stained the virtue or the reputation of Tribonian.
In a bigoted and persecuting court, the principal minister was
accused of a secret aversion to the Christian faith, and was
supposed to entertain the sentiments of an Atheist and a Pagan,
which have been imputed, inconsistently enough, to the last
philosophers of Greece. His avarice was more clearly proved and
more sensibly felt. If he were swayed by gifts in the
administration of justice, the example of Bacon will again occur;
nor can the merit of Tribonian atone for his baseness, if he
degraded the sanctity of his profession; and if laws were every
day enacted, modified, or repealed, for the base consideration of
his private emolument. In the sedition of Constantinople, his
removal was granted to the clamors, perhaps to the just
indignation, of the people: but the quaestor was speedily
restored, and, till the hour of his death, he possessed, above
twenty years, the favor and confidence of the emperor. His
passive and dutiful submission had been honored with the praise
of Justinian himself, whose vanity was incapable of discerning
how often that submission degenerated into the grossest
adulation. Tribonian adored the virtues of his gracious of his
gracious master; the earth was unworthy of such a prince; and he
affected a pious fear, that Justinian, like Elijah or Romulus,
would be snatched into the air, and translated alive to the
mansions of celestial glory. ^74

[Footnote 71: For the legal labors of Justinian, I have studied
the Preface to the Institutes; the 1st, 2d, and 3d Prefaces to
the Pandects; the 1st and 2d Preface to the Code; and the Code
itself, (l. i. tit. xvii. de Veteri Jure enucleando.) After these
original testimonies, I have consulted, among the moderns,
Heineccius, (Hist. J. R. No. 383 - 404,) Terasson. (Hist. de la
Jurisprudence Romaine, p. 295 - 356,) Gravina, (Opp. p. 93 -
100,) and Ludewig, in his Life of Justinian, (p.19 - 123, 318 -
321; for the Code and Novels, p. 209 - 261; for the Digest or
Pandects, p. 262 - 317.)]
[Footnote 72: For the character of Tribonian, see the testimonies
of Procopius, (Persic. l. i. c. 23, 24. Anecdot. c. 13, 20,) and
Suidas, (tom. iii. p. 501, edit. Kuster.) Ludewig (in Vit.
Justinian, p. 175 - 209) works hard, very hard, to whitewash -
the blackamoor.]

[Footnote 73: I apply the two passages of Suidas to the same man;
every circumstance so exactly tallies. Yet the lawyers appear
ignorant; and Fabricius is inclined to separate the two
characters, (Bibliot. Grae. tom. i. p. 341, ii. p. 518, iii. p.
418, xii. p. 346, 353, 474.]

[Footnote 74: This story is related by Hesychius, (de Viris
Illustribus,) Procopius, (Anecdot. c. 13,) and Suidas, (tom. iii.
p. 501.) Such flattery is incredible!

- Nihil est quod credere de se Non possit, cum laudatur Diis
aequa potestas.
Fontenelle (tom. i. p. 32 - 39) has ridiculed the impudence of
the modest Virgil. But the same Fontenelle places his king above
the divine Augustus; and the sage Boileau has not blushed to say,
"Le destin a ses yeux n'oseroit balancer" Yet neither Augustus
nor Louis XIV. were fools.]
     If Caesar had achieved the reformation of the Roman law, his
creative genius, enlightened by reflection and study, would have
given to the world a pure and original system of jurisprudence.
Whatever flattery might suggest, the emperor of the East was
afraid to establish his private judgment as the standard of
equity: in the possession of legislative power, he borrowed the
aid of time and opinion; and his laborious compilations are
guarded by the sages and legislature of past times. Instead of a
statue cast in a simple mould by the hand of an artist, the works
of Justinian represent a tessellated pavement of antique and
costly, but too often of incoherent, fragments. In the first
year of his reign, he directed the faithful Tribonian, and nine
learned associates, to revise the ordinances of his predecessors,
as they were contained, since the time of Adrian, in the
Gregorian Hermogenian, and Theodosian codes; to purge the errors
and contradictions, to retrench whatever was obsolete or
superfluous, and to select the wise and salutary laws best
adapted to the practice of the tribunals and the use of his
subjects. The work was accomplished in fourteen months; and the
twelve books or tables, which the new decemvirs produced, might
be designed to imitate the labors of their Roman predecessors.
The new Code of Justinian was honored with his name, and
confirmed by his royal signature: authentic transcripts were
multiplied by the pens of notaries and scribes; they were
transmitted to the magistrates of the European, the Asiatic, and
afterwards the African provinces; and the law of the empire was
proclaimed on solemn festivals at the doors of churches. A more
arduous operation was still behind - to extract the spirit of
jurisprudence from the decisions and conjectures, the questions
and disputes, of the Roman civilians. Seventeen lawyers, with
Tribonian at their head, were appointed by the emperor to
exercise an absolute jurisdiction over the works of their
predecessors. If they had obeyed his commands in ten years,
Justinian would have been satisfied with their diligence; and the
rapid composition of the Digest of Pandects, ^75 in three years,
will deserve praise or censure, according to the merit of the
execution. From the library of Tribonian, they chose forty, the
most eminent civilians of former times: ^76 two thousand
treatises were comprised in an abridgment of fifty books; and it
has been carefully recorded, that three millions of lines or
sentences, ^77 were reduced, in this abstract, to the moderate
number of one hundred and fifty thousand. The edition of this
great work was delayed a month after that of the Institutes; and
it seemed reasonable that the elements should precede the digest
of the Roman law. As soon as the emperor had approved their
labors, he ratified, by his legislative power, the speculations
of these private citizens: their commentaries, on the twelve
tables, the perpetual edict, the laws of the people, and the
decrees of the senate, succeeded to the authority of the text;
and the text was abandoned, as a useless, though venerable, relic
of antiquity. The Code, the Pandects, and the Institutes, were
declared to be the legitimate system of civil jurisprudence; they
alone were admitted into the tribunals, and they alone were
taught in the academies of Rome, Constantinople, and Berytus.
Justinian addressed to the senate and provinces his eternal
oracles; and his pride, under the mask of piety, ascribed the
consummation of this great design to the support and inspiration
of the Deity.

[Footnote 75: General receivers was a common title of the Greek
miscellanies, (Plin. Praefat. ad Hist. Natur.) The Digesta of
Scaevola, Marcellinus, Celsus, were already familiar to the
civilians: but Justinian was in the wrong when he used the two
appellations as synonymous. Is the word Pandects Greek or Latin
- masculine or feminine? The diligent Brenckman will not presume
to decide these momentous controversies, (Hist. Pandect.
Florentine. p. 200 - 304.)
     Note: The word was formerly in common use. See the preface
is Aulus Gellius - W]

[Footnote 76: Angelus Politianus (l. v. Epist. ult.) reckons
thirty-seven (p. 192 - 200) civilians quoted in the Pandects - a
learned, and for his times, an extraordinary list. The Greek
index to the Pandects enumerates thirty-nine, and forty are
produced by the indefatigable Fabricius, (Bibliot. Graec. tom.
iii. p. 488 - 502.) Antoninus Augustus (de Nominibus Propriis
Pandect. apud Ludewig, p. 283) is said to have added fifty-four
names; but they must be vague or second-hand references.]

[Footnote 77: The item of the ancient Mss. may be strictly
defined as sentences or periods of a complete sense, which, on
the breadth of the parchment rolls or volumes, composed as many
lines of unequal length. The number in each book served as a
check on the errors of the scribes, (Ludewig, p. 211 - 215; and
his original author Suicer. Thesaur. Ecclesiast. tom. i. p 1021 -
1036).]

     Since the emperor declined the fame and envy of original
composition, we can only require, at his hands, method choice,
and fidelity, the humble, though indispensable, virtues of a
compiler. Among the various combinations of ideas, it is
difficult to assign any reasonable preference; but as the order
of Justinian is different in his three works, it is possible that
all may be wrong; and it is certain that two cannot be right. In
the selection of ancient laws, he seems to have viewed his
predecessors without jealousy, and with equal regard: the series
could not ascend above the reign of Adrian, and the narrow
distinction of Paganism and Christianity, introduced by the
superstition of Theodosius, had been abolished by the consent of
mankind. But the jurisprudence of the Pandects is circumscribed
within a period of a hundred years, from the perpetual edict to
the death of Severus Alexander: the civilians who lived under the
first Caesars are seldom permitted to speak, and only three names
can be attributed to the age of the republic. The favorite of
Justinian (it has been fiercely urged) was fearful of
encountering the light of freedom and the gravity of Roman sages.

Tribonian condemned to oblivion the genuine and native wisdom of
Cato, the Scaevolas, and Sulpicius; while he invoked spirits more
congenial to his own, the Syrians, Greeks, and Africans, who
flocked to the Imperial court to study Latin as a foreign tongue,
and jurisprudence as a lucrative profession. But the ministers
of Justinian, ^78 were instructed to labor, not for the curiosity
of antiquarians, but for the immediate benefit of his subjects.
It was their duty to select the useful and practical parts of the
Roman law; and the writings of the old republicans, however
curious on excellent, were no longer suited to the new system of
manners, religion, and government. Perhaps, if the preceptors and
friends of Cicero were still alive, our candor would acknowledge,
that, except in purity of language, ^79 their intrinsic merit was
excelled by the school of Papinian and Ulpian. The science of
the laws is the slow growth of time and experience, and the
advantage both of method and materials, is naturally assumed by
the most recent authors. The civilians of the reign of the
Antonines had studied the works of their predecessors: their
philosophic spirit had mitigated the rigor of antiquity,
simplified the forms of proceeding, and emerged from the jealousy
and prejudice of the rival sects. The choice of the authorities
that compose the Pandects depended on the judgment of Tribonian:
but the power of his sovereign could not absolve him from the
sacred obligations of truth and fidelity. As the legislator of
the empire, Justinian might repeal the acts of the Antonines, or
condemn, as seditious, the free principles, which were maintained
by the last of the Roman lawyers. ^80 But the existence of past
facts is placed beyond the reach of despotism; and the emperor
was guilty of fraud and forgery, when he corrupted the integrity
of their text, inscribed with their venerable names the words and
ideas of his servile reign, ^81 and suppressed, by the hand of
power, the pure and authentic copies of their sentiments. The
changes and interpolations of Tribonian and his colleagues are
excused by the pretence of uniformity: but their cares have been
insufficient, and the antinomies, or contradictions of the Code
and Pandects, still exercise the patience and subtilty of modern
civilians. ^82

[Footnote 78: An ingenious and learned oration of Schultingius
(Jurisprudentia Ante-Justinianea, p. 883 - 907) justifies the
choice of Tribonian, against the passionate charges of Francis
Hottoman and his sectaries.]
[Footnote 79: Strip away the crust of Tribonian, and allow for
the use of technical words, and the Latin of the Pandects will be
found not unworthy of the silver age. It has been vehemently
attacked by Laurentius Valla, a fastidious grammarian of the xvth
century, and by his apologist Floridus Sabinus. It has been
defended by Alciat, and a name less advocate, (most probably
James Capellus.) Their various treatises are collected by Duker,
(Opuscula de Latinitate veterum Jurisconsultorum, Lugd. Bat.
1721, in 12mo.)
     Note: Gibbon is mistaken with regard to Valla, who, though
he inveighs against the barbarous style of the civilians of his
own day, lavishes the highest praise on the admirable purity of
the language of the ancient writers on civil law. (M. Warnkonig
quotes a long passage of Valla in justification of this
observation.) Since his time, this truth has been recognized by
men of the highest eminence, such as Erasmus, David Hume and
Runkhenius. - W.]
[Footnote 80: Nomina quidem veteribus servavimus, legum autem
veritatem nostram fecimus. Itaque siquid erat in illis
seditiosum, multa autem talia erant ibi reposita, hoc decisum est
et definitum, et in perspicuum finem deducta est quaeque lex,
(Cod. Justinian. l. i. tit. xvii. leg. 3, No 10.) A frank
confession!

     Note: Seditiosum, in the language of Justinian, means not
seditious, but discounted. - W.]

[Footnote 81: The number of these emblemata (a polite name for
forgeries) is much reduced by Bynkershoek, (in the four last
books of his Observations,) who poorly maintains the right of
Justinian and the duty of Tribonian.]
[Footnote 82: The antinomies, or opposite laws of the Code and
Pandects, are sometimes the cause, and often the excuse, of the
glorious uncertainty of the civil law, which so often affords
what Montaigne calls "Questions pour l'Ami." See a fine passage
of Franciscus Balduinus in Justinian, (l. ii. p. 259, &c., apud
Ludewig, p. 305, 306.)]

     A rumor devoid of evidence has been propagated by the
enemies of Justinian; that the jurisprudence of ancient Rome was
reduced to ashes by the author of the Pandects, from the vain
persuasion, that it was now either false or superfluous. Without
usurping an office so invidious, the emperor might safely commit
to ignorance and time the accomplishments of this destructive
wish. Before the invention of printing and paper, the labor and
the materials of writing could be purchased only by the rich; and
it may reasonably be computed, that the price of books was a
hundred fold their present value. ^83 Copies were slowly
multiplied and cautiously renewed: the hopes of profit tempted
the sacrilegious scribes to erase the characters of antiquity, ^*
and Sophocles or Tacitus were obliged to resign the parchment to
missals, homilies, and the golden legend. ^84 If such was the
fate of the most beautiful compositions of genius, what stability
could be expected for the dull and barren works of an obsolete
science? The books of jurisprudence were interesting to few, and
entertaining to none: their value was connected with present use,
and they sunk forever as soon as that use was superseded by the
innovations of fashion, superior merit, or public authority. In
the age of peace and learning, between Cicero and the last of the
Antonines, many losses had been already sustained, and some
luminaries of the school, or forum, were known only to the
curious by tradition and report. Three hundred and sixty years
of disorder and decay accelerated the progress of oblivion; and
it may fairly be presumed, that of the writings, which Justinian
is accused of neglecting, many were no longer to be found in the
libraries of the East. ^85 The copies of Papinian, or Ulpian,
which the reformer had proscribed, were deemed unworthy of future
notice: the Twelve Tables and praetorian edicts insensibly
vanished, and the monuments of ancient Rome were neglected or
destroyed by the envy and ignorance of the Greeks. Even the
Pandects themselves have escaped with difficulty and danger from
the common shipwreck, and criticism has pronounced that all the
editions and manuscripts of the West are derived from one
original. ^86 It was transcribed at Constantinople in the
beginning of the seventh century, ^87 was successively
transported by the accidents of war and commerce to Amalphi, ^88
Pisa, ^89 and Florence, ^90 and is now deposited as a sacred
relic ^91 in the ancient palace of the republic. ^92

[Footnote 83: When Faust, or Faustus, sold at Paris his first
printed Bibles as manuscripts, the price of a parchment copy was
reduced from four or five hundred to sixty, fifty, and forty
crowns. The public was at first pleased with the cheapness, and
at length provoked by the discovery of the fraud, (Mattaire,
Annal. Typograph. tom. i. p. 12; first edit.)]

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

[Footnote 84: This execrable practice prevailed from the viiith,
and more especially from the xiith, century, when it became
almost universal (Montfaucon, in the Memoires de l'Academie, tom.
vi. p. 606, &c. Bibliotheque Raisonnee de la Diplomatique, tom.
i. p. 176.)]

[Footnote 85: Pomponius (Pandect. l. i. tit. ii. leg. 2)
observes, that of the three founders of the civil law, Mucius,
Brutus, and Manilius, extant volumina, scripta Manilii monumenta;
that of some old republican lawyers, haec versantur eorum scripta
inter manus hominum. Eight of the Augustan sages were reduced to
a compendium: of Cascellius, scripta non extant sed unus liber,
&c.; of Trebatius, minus frequentatur; of Tubero, libri parum
grati sunt. Many quotations in the Pandects are derived from
books which Tribonian never saw; and in the long period from the
viith to the xiiith century of Rome, the apparent reading of the
moderns successively depends on the knowledge and veracity of
their predecessors.]

[Footnote 86: All, in several instances, repeat the errors of the
scribe and the transpositions of some leaves in the Florentine
Pandects. This fact, if it be true, is decisive. Yet the
Pandects are quoted by Ivo of Chartres, (who died in 1117,) by
Theobald, archbishop of Canterbury, and by Vacarius, our first
professor, in the year 1140, (Selden ad Fletam, c. 7, tom. ii. p.
1080 - 1085.) Have our British Mss. of the Pandects been
collated?]
[Footnote 87: See the description of this original in Brenckman,
(Hist. Pandect. Florent. l. i. c. 2, 3, p. 4 - 17, and l. ii.)
Politian, an enthusiast, revered it as the authentic standard of
Justinian himself, (p. 407, 408;) but this paradox is refuted by
the abbreviations of the Florentine Ms. (l. ii. c. 3, p. 117 -
130.) It is composed of two quarto volumes, with large margins,
on a thin parchment, and the Latin characters betray the band of
a Greek scribe.]

[Footnote 88: Brenckman, at the end of his history, has inserted
two dissertations on the republic of Amalphi, and the Pisan war
in the year 1135, &c.]

[Footnote 89: The discovery of the Pandects at Amalphi (A. D
1137) is first noticed (in 1501) by Ludovicus Bologninus,
(Brenckman, l. i. c. 11, p. 73, 74, l. iv. c. 2, p. 417 - 425,)
on the faith of a Pisan chronicle, (p. 409, 410,) without a name
or a date. The whole story, though unknown to the xiith century,
embellished by ignorant ages, and suspected by rigid criticism,
is not, however, destitute of much internal probability, (l. i.
c. 4 - 8, p. 17 - 50.) The Liber Pandectarum of Pisa was
undoubtedly consulted in the xivth century by the great Bartolus,
(p. 406, 407. See l. i. c. 9, p. 50 - 62.)
     Note: Savigny (vol. iii. p. 83, 89) examines and rejects the
whole story. See likewise Hallam vol. iii. p. 514. - M.]

[Footnote 90: Pisa was taken by the Florentines in the year 1406;
and in 1411 the Pandects were transported to the capital. These
events are authentic and famous.]

[Footnote 91: They were new bound in purple, deposited in a rich
casket, and shown to curious travellers by the monks and
magistrates bareheaded, and with lighted tapers, (Brenckman, l.
i. c. 10, 11, 12, p. 62 - 93.)]
[Footnote 92: After the collations of Politian, Bologninus, and
Antoninus Augustinus, and the splendid edition of the Pandects by
Taurellus, (in 1551,) Henry Brenckman, a Dutchman, undertook a
pilgrimage to Florence, where he employed several years in the
study of a single manuscript. His Historia Pandectarum
Florentinorum, (Utrecht, 1722, in 4to.,) though a monument of
industry, is a small portion of his original design.]

     It is the first care of a reformer to prevent any future
reformation. To maintain the text of the Pandects, the
Institutes, and the Code, the use of ciphers and abbreviations
was rigorously proscribed; and as Justinian recollected, that the
perpetual edict had been buried under the weight of commentators,
he denounced the punishment of forgery against the rash civilians
who should presume to interpret or pervert the will of their
sovereign. The scholars of Accursius, of Bartolus, of Cujacius,
should blush for their accumulated guilt, unless they dare to
dispute his right of binding the authority of his successors, and
the native freedom of the mind. But the emperor was unable to
fix his own inconstancy; and, while he boasted of renewing the
exchange of Diomede, of transmuting brass into gold, ^93
discovered the necessity of purifying his gold from the mixture
of baser alloy. Six years had not elapsed from the publication
of the Code, before he condemned the imperfect attempt, by a new
and more accurate edition of the same work; which he enriched
with two hundred of his own laws, and fifty decisions of the
darkest and most intricate points of jurisprudence. Every year,
or, according to Procopius, each day, of his long reign, was
marked by some legal innovation. Many of his acts were rescinded
by himself; many were rejected by his successors; many have been
obliterated by time; but the number of sixteen Edicts, and one
hundred and sixty-eight Novels, ^94 has been admitted into the
authentic body of the civil jurisprudence. In the opinion of a
philosopher superior to the prejudices of his profession, these
incessant, and, for the most part, trifling alterations, can be
only explained by the venal spirit of a prince, who sold without
shame his judgments and his laws. ^95 The charge of the secret
historian is indeed explicit and vehement; but the sole instance,
which he produces, may be ascribed to the devotion as well as to
the avarice of Justinian. A wealthy bigot had bequeathed his
inheritance to the church of Emesa; and its value was enhanced by
the dexterity of an artist, who subscribed confessions of debt
and promises of payment with the names of the richest Syrians.
They pleaded the established prescription of thirty or forty
years; but their defence was overruled by a retrospective edict,
which extended the claims of the church to the term of a century;
an edict so pregnant with injustice and disorder, that, after
serving this occasional purpose, it was prudently abolished in
the same reign. ^96 If candor will acquit the emperor himself,
and transfer the corruption to his wife and favorites, the
suspicion of so foul a vice must still degrade the majesty of his
laws; and the advocates of Justinian may acknowledge, that such
levity, whatsoever be the motive, is unworthy of a legislator and
a man.
[Footnote 93: Apud Homerum patrem omnis virtutis, (1st Praefat.
ad Pandect.) A line of Milton or Tasso would surprise us in an
act of parliament. Quae omnia obtinere sancimus in omne aevum.
Of the first Code, he says, (2d Praefat.,) in aeternum valiturum.

Man and forever!]

[Footnote 94: Novellae is a classic adjective, but a barbarous
substantive, (Ludewig, p. 245.) Justinian never collected them
himself; the nine collations, the legal standard of modern
tribunals, consist of ninety-eight Novels; but the number was
increased by the diligence of Julian, Haloander, and Contius,
(Ludewig, p. 249, 258 Aleman. Not in Anecdot. p. 98.)]
[Footnote 95: Montesquieu, Considerations sur la Grandeur et la
Decadence des Romains, c. 20, tom. iii. p. 501, in 4to. On this
occasion he throws aside the gown and cap of a President a
Mortier.]

[Footnote 96: Procopius, Anecdot. c. 28. A similar privilege was
granted to the church of Rome, (Novel. ix.) For the general
repeal of these mischievous indulgences, see Novel. cxi. and
Edict. v.]

     Monarchs seldom condescend to become the preceptors of their
subjects; and some praise is due to Justinian, by whose command
an ample system was reduced to a short and elementary treatise.
Among the various institutes of the Roman law, ^97 those of Caius
^98 were the most popular in the East and West; and their use may
be considered as an evidence of their merit. They were selected
by the Imperial delegates, Tribonian, Theophilus, and Dorotheus;
and the freedom and purity of the Antonines was incrusted with
the coarser materials of a degenerate age. The same volume which
introduced the youth of Rome, Constantinople, and Berytus, to the
gradual study of the Code and Pandects, is still precious to the
historian, the philosopher, and the magistrate. The Institutes
of Justinian are divided into four books: they proceed, with no
contemptible method, from, I. Persons, to, II. Things, and from
things, to, III. Actions; and the article IV., of Private
Wrongs, is terminated by the principles of Criminal Law. ^*

[Footnote 97: Lactantius, in his Institutes of Christianity, an
elegant and specious work, proposes to imitate the title and
method of the civilians. Quidam prudentes et arbitri aequitatis
Institutiones Civilis Juris compositas ediderunt, (Institut.
Divin. l. i. c. 1.) Such as Ulpian, Paul, Florentinus, Marcian.]

[Footnote 98: The emperor Justinian calls him suum, though he
died before the end of the second century. His Institutes are
quoted by Servius, Boethius, Priscian, &c.; and the Epitome by
Arrian is still extant. (See the Prolegomena and notes to the
edition of Schulting, in the Jurisprudentia Ante-Justinianea,
Lugd. Bat. 1717. Heineccius, Hist. J R No. 313. Ludewig, in
Vit. Just. p. 199.)]

[Footnote *: Gibbon, dividing the Institutes into four parts,
considers the appendix of the criminal law in the last title as a
fourth part. - W.]

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part IV.

     The distinction of ranks and persons is the firmest basis of
a mixed and limited government. In France, the remains of
liberty are kept alive by the spirit, the honors, and even the
prejudices, of fifty thousand nobles. ^99 Two hundred families ^!
supply, in lineal descent, the second branch of English
legislature, which maintains, between the king and commons, the
balance of the constitution. A gradation of patricians and
plebeians, of strangers and subjects, has supported the
aristocracy of Genoa, Venice, and ancient Rome. The perfect
equality of men is the point in which the extremes of democracy
and despotism are confounded; since the majesty of the prince or
people would be offended, if any heads were exalted above the
level of their fellow-slaves or fellow-citizens. In the decline
of the Roman empire, the proud distinctions of the republic were
gradually abolished, and the reason or instinct of Justinian
completed the simple form of an absolute monarchy. The emperor
could not eradicate the popular reverence which always waits on
the possession of hereditary wealth, or the memory of famous
ancestors. He delighted to honor, with titles and emoluments,
his generals, magistrates, and senators; and his precarious
indulgence communicated some rays of their glory to the persons
of their wives and children. But in the eye of the law, all
Roman citizens were equal, and all subjects of the empire were
citizens of Rome. That inestimable character was degraded to an
obsolete and empty name. The voice of a Roman could no longer
enact his laws, or create the annual ministers of his power: his
constitutional rights might have checked the arbitrary will of a
master: and the bold adventurer from Germany or Arabia was
admitted, with equal favor, to the civil and military command,
which the citizen alone had been once entitled to assume over the
conquests of his fathers. The first Caesars had scrupulously
guarded the distinction of ingenuous and servile birth, which was
decided by the condition of the mother; and the candor of the
laws was satisfied, if her freedom could be ascertained, during a
single moment, between the conception and the delivery. The
slaves, who were liberated by a generous master, immediately
entered into the middle class of libertines or freedmen; but they
could never be enfranchised from the duties of obedience and
gratitude; whatever were the fruits of their industry, their
patron and his family inherited the third part; or even the whole
of their fortune, if they died without children and without a
testament. Justinian respected the rights of patrons; but his
indulgence removed the badge of disgrace from the two inferior
orders of freedmen; whoever ceased to be a slave, obtained,
without reserve or delay, the station of a citizen; and at length
the dignity of an ingenuous birth, which nature had refused, was
created, or supposed, by the omnipotence of the emperor.
Whatever restraints of age, or forms, or numbers, had been
formerly introduced to check the abuse of manumissions, and the
too rapid increase of vile and indigent Romans, he finally
abolished; and the spirit of his laws promoted the extinction of
domestic servitude. Yet the eastern provinces were filled, in
the time of Justinian, with multitudes of slaves, either born or
purchased for the use of their masters; and the price, from ten
to seventy pieces of gold, was determined by their age, their
strength, and their education. ^100 But the hardships of this
dependent state were continually diminished by the influence of
government and religion: and the pride of a subject was no longer
elated by his absolute dominion over the life and happiness of
his bondsman. ^101
[Footnote 99: See the Annales Politiques de l'Abbe de St. Pierre,
tom. i. p. 25 who dates in the year 1735. The most ancient
families claim the immemorial possession of arms and fiefs.
Since the Crusades, some, the most truly respectable, have been
created by the king, for merit and services. The recent and
vulgar crowd is derived from the multitude of venal offices
without trust or dignity, which continually ennoble the wealthy
plebeians.]
[Footnote !: Since the time of Gibbon, the House of Peers has
been more than doubled: it is above 400, exclusive of the
spiritual peers - a wise policy to increase the patrician order
in proportion to the general increase of the nation. - M.]

[Footnote 100: If the option of a slave was bequeathed to several
legatees, they drew lots, and the losers were entitled to their
share of his value; ten pieces of gold for a common servant or
maid under ten years: if above that age, twenty; if they knew a
trade, thirty; notaries or writers, fifty; midwives or
physicians, sixty; eunuchs under ten years, thirty pieces; above,
fifty; if tradesmen, seventy, (Cod. l. vi. tit. xliii. leg. 3.)
These legal prices are generally below those of the market.]

[Footnote 101: For the state of slaves and freedmen, see
Institutes, l. i. tit. iii. - viii. l. ii. tit. ix. l. iii. tit.
viii. ix. Pandects or Digest, l. i. tit. v. vi. l. xxxviii. tit.
i. - iv., and the whole of the xlth book. Code, l. vi. tit. iv.
v. l. vii. tit. i. - xxiii. Be it henceforward understood that,
with the original text of the Institutes and Pandects, the
correspondent articles in the Antiquities and Elements of
Heineccius are implicitly quoted; and with the xxvii. first books
of the Pandects, the learned and rational Commentaries of Gerard
Noodt, (Opera, tom. ii. p. 1 - 590, the end. Lugd. Bat. 1724.)]

     The law of nature instructs most animals to cherish and
educate their infant progeny. The law of reason inculcates to
the human species the returns of filial piety. But the
exclusive, absolute, and perpetual dominion of the father over
his children, is peculiar to the Roman jurisprudence, ^102 and
seems to be coeval with the foundation of the city. ^103 The
paternal power was instituted or confirmed by Romulus himself;
and, after the practice of three centuries, it was inscribed on
the fourth table of the Decemvirs. In the forum, the senate, or
the camp, the adult son of a Roman citizen enjoyed the public and
private rights of a person: in his father's house he was a mere
thing; ^!! confounded by the laws with the movables, the cattle,
and the slaves, whom the capricious master might alienate or
destroy, without being responsible to any earthly tribunal. The
hand which bestowed the daily sustenance might resume the
voluntary gift, and whatever was acquired by the labor or fortune
of the son was immediately lost in the property of the father.
His stolen goods (his oxen or his children) might be recovered by
the same action of theft; ^104 and if either had been guilty of a
trespass, it was in his own option to compensate the damage, or
resign to the injured party the obnoxious animal. At the call of
indigence or avarice, the master of a family could dispose of his
children or his slaves. But the condition of the slave was far
more advantageous, since he regained, by the first manumission,
his alienated freedom: the son was again restored to his
unnatural father; he might be condemned to servitude a second and
a third time, and it was not till after the third sale and
deliverance, ^105 that he was enfranchised from the domestic
power which had been so repeatedly abused. According to his
discretion, a father might chastise the real or imaginary faults
of his children, by stripes, by imprisonment, by exile, by
sending them to the country to work in chains among the meanest
of his servants. The majesty of a parent was armed with the
power of life and death; ^106 and the examples of such bloody
executions, which were sometimes praised and never punished, may
be traced in the annals of Rome beyond the times of Pompey and
Augustus. Neither age, nor rank, nor the consular office, nor the
honors of a triumph, could exempt the most illustrious citizen
from the bonds of filial subjection: ^107 his own descendants
were included in the family of their common ancestor; and the
claims of adoption were not less sacred or less rigorous than
those of nature. Without fear, though not without danger of
abuse, the Roman legislators had reposed an unbounded confidence
in the sentiments of paternal love; and the oppression was
tempered by the assurance that each generation must succeed in
its turn to the awful dignity of parent and master.
[Footnote 102: See the patria potestas in the Institutes, (l. i.
tit. ix.,) the Pandects, (l. i. tit. vi. vii.,) and the Code, (l.
viii. tit. xlvii. xlviii. xlix.) Jus potestatis quod in liberos
habemus proprium est civium Romanorum. Nulli enim alii sunt
homines, qui talem in liberos habeant potestatem qualem nos
habemus.

     Note: The newly-discovered Institutes of Gaius name one
nation in which the same power was vested in the parent. Nec me
praeterit Galatarum gentem credere, in potestate parentum liberos
esse. Gaii Instit. edit. 1824, p. 257. - M.]

[Footnote 103: Dionysius Hal. l. ii. p. 94, 95. Gravina (Opp. p.
286) produces the words of the xii. tables. Papinian (in
Collatione Legum Roman et Mosaicarum, tit. iv. p. 204) styles
this patria potestas, lex regia: Ulpian (ad Sabin. l. xxvi. in
Pandect. l. i. tit. vi. leg. 8) says, jus potestatis moribus
receptum; and furiosus filium in potestate habebit How sacred -
or rather, how absurd!

     Note: All this is in strict accordance with the Roman
character. - W.]
[Footnote !!: This parental power was strictly confined to the
Roman citizen. The foreigner, or he who had only jus Latii, did
not possess it. If a Roman citizen unknowingly married a Latin
or a foreign wife, he did not possess this power over his son,
because the son, following the legal condition of the mother, was
not a Roman citizen. A man, however, alleging sufficient cause
for his ignorance, might raise both mother and child to the
rights of citizenship. Gaius. p. 30. - M.]

[Footnote 104: Pandect. l. xlvii. tit. ii. leg. 14, No. 13, leg.
38, No. 1. Such was the decision of Ulpian and Paul.]

[Footnote 105: The trina mancipatio is most clearly defined by
Ulpian, (Fragment. x. p. 591, 592, edit. Schulting;) and best
illustrated in the Antiquities of Heineccius.

     Note: The son of a family sold by his father did not become
in every respect a slave, he was statu liber; that is to say, on
paying the price for which he was sold, he became entirely free.
See Hugo, Hist. Section 61 - W.]
[Footnote 106: By Justinian, the old law, the jus necis of the
Roman father (Institut. l. iv. tit. ix. No. 7) is reported and
reprobated. Some legal vestiges are left in the Pandects (l.
xliii. tit. xxix. leg. 3, No. 4) and the Collatio Legum Romanarum
et Mosaicarum, (tit. ii. No. 3, p. 189.)]
[Footnote 107: Except on public occasions, and in the actual
exercise of his office. In publicis locis atque muneribus, atque
actionibus patrum, jura cum filiorum qui in magistratu sunt
potestatibus collata interquiescere paullulum et connivere, &c.,
(Aul. Gellius, Noctes Atticae, ii. 2.) The Lessons of the
philosopher Taurus were justified by the old and memorable
example of Fabius; and we may contemplate the same story in the
style of Livy (xxiv. 44) and the homely idiom of Claudius Quadri
garius the annalist.]

     The first limitation of paternal power is ascribed to the
justice and humanity of Numa; and the maid who, with his father's
consent, had espoused a freeman, was protected from the disgrace
of becoming the wife of a slave. In the first ages, when the city
was pressed, and often famished, by her Latin and Tuscan
neighbors, the sale of children might be a frequent practice; but
as a Roman could not legally purchase the liberty of his
fellow-citizen, the market must gradually fail, and the trade
would be destroyed by the conquests of the republic. An
imperfect right of property was at length communicated to sons;
and the threefold distinction of profectitious, adventitious, and
professional was ascertained by the jurisprudence of the Code and
Pandects. ^108 Of all that proceeded from the father, he imparted
only the use, and reserved the absolute dominion; yet if his
goods were sold, the filial portion was excepted, by a favorable
interpretation, from the demands of the creditors. In whatever
accrued by marriage, gift, or collateral succession, the property
was secured to the son; but the father, unless he had been
specially excluded, enjoyed the usufruct during his life. As a
just and prudent reward of military virtue, the spoils of the
enemy were acquired, possessed, and bequeathed by the soldier
alone; and the fair analogy was extended to the emoluments of any
liberal profession, the salary of public service, and the sacred
liberality of the emperor or empress. The life of a citizen was
less exposed than his fortune to the abuse of paternal power.
Yet his life might be adverse to the interest or passions of an
unworthy father: the same crimes that flowed from the corruption,
were more sensibly felt by the humanity, of the Augustan age; and
the cruel Erixo, who whipped his son till he expired, was saved
by the emperor from the just fury of the multitude. ^109 The
Roman father, from the license of servile dominion, was reduced
to the gravity and moderation of a judge. The presence and
opinion of Augustus confirmed the sentence of exile pronounced
against an intentional parricide by the domestic tribunal of
Arius. Adrian transported to an island the jealous parent, who,
like a robber, had seized the opportunity of hunting, to
assassinate a youth, the incestuous lover of his step-mother.
^110 A private jurisdiction is repugnant to the spirit of
monarchy; the parent was again reduced from a judge to an
accuser; and the magistrates were enjoined by Severus Alexander
to hear his complaints and execute his sentence. He could no
longer take the life of a son without incurring the guilt and
punishment of murder; and the pains of parricide, from which he
had been excepted by the Pompeian law, were finally inflicted by
the justice of Constantine. ^111 The same protection was due to
every period of existence; and reason must applaud the humanity
of Paulus, for imputing the crime of murder to the father who
strangles, or starves, or abandons his new-born infant; or
exposes him in a public place to find the mercy which he himself
had denied. But the exposition of children was the prevailing
and stubborn vice of antiquity: it was sometimes prescribed,
often permitted, almost always practised with impunity, by the
nations who never entertained the Roman ideas of paternal power;
and the dramatic poets, who appeal to the human heart, represent
with indifference a popular custom which was palliated by the
motives of economy and compassion. ^112 If the father could
subdue his own feelings, he might escape, though not the censure,
at least the chastisement, of the laws; and the Roman empire was
stained with the blood of infants, till such murders were
included, by Valentinian and his colleagues, in the letter and
spirit of the Cornelian law. The lessons of jurisprudence ^113
and Christianity had been insufficient to eradicate this inhuman
practice, till their gentle influence was fortified by the
terrors of capital punishment. ^114

[Footnote 108: See the gradual enlargement and security of the
filial peculium in the Institutes, (l. ii. tit. ix.,) the
Pandects, (l. xv. tit. i. l. xli. tit. i.,) and the Code, (l. iv.
tit. xxvi. xxvii.)]

[Footnote 109: The examples of Erixo and Arius are related by
Seneca, (de Clementia, i. 14, 15,) the former with horror, the
latter with applause.]
[Footnote 110: Quod latronis magis quam patris jure eum
interfecit, nam patria potestas in pietate debet non in
atrocitate consistere, (Marcian. Institut. l. xix. in Pandect. l.
xlviii. tit. ix. leg.5.)]

[Footnote 111: The Pompeian and Cornelian laws de sicariis and
parricidis are repeated, or rather abridged, with the last
supplements of Alexander Severus, Constantine, and Valentinian,
in the Pandects (l. xlviii. tit. viii ix,) and Code, (l. ix. tit.
xvi. xvii.) See likewise the Theodosian Code, (l. ix. tit. xiv.
xv.,) with Godefroy's Commentary, (tom. iii. p. 84 - 113) who
pours a flood of ancient and modern learning over these penal
laws.]
[Footnote 112: When the Chremes of Terence reproaches his wife
for not obeying his orders and exposing their infant, he speaks
like a father and a master, and silences the scruples of a
foolish woman. See Apuleius, (Metamorph. l. x. p. 337, edit.
Delphin.)]

[Footnote 113: The opinion of the lawyers, and the discretion of
the magistrates, had introduced, in the time of Tacitus, some
legal restraints, which might support his contrast of the boni
mores of the Germans to the bonae leges alibi - that is to say,
at Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes,
l. i. c. 15) refutes his own charges, and those of his brethren,
against the heathen jurisprudence.]

[Footnote 114: The wise and humane sentence of the civilian Paul
(l. ii. Sententiarum in Pandect, 1. xxv. tit. iii. leg. 4) is
represented as a mere moral precept by Gerard Noodt, (Opp. tom.
i. in Julius Paulus, p. 567 - 558, and Amica Responsio, p. 591 -
606,) who maintains the opinion of Justus Lipsius, (Opp. tom. ii.
p. 409, ad Belgas. cent. i. epist. 85,) and as a positive binding
law by Bynkershoek, (de Jure occidendi Liberos, Opp. tom. i. p.
318 - 340. Curae Secundae, p. 391 - 427.) In a learned out angry
controversy, the two friends deviated into the opposite
extremes.]
     Experience has proved, that savages are the tyrants of the
female sex, and that the condition of women is usually softened
by the refinements of social life. In the hope of a robust
progeny, Lycurgus had delayed the season of marriage: it was
fixed by Numa at the tender age of twelve years, that the Roman
husband might educate to his will a pure and obedient virgin.
^115 According to the custom of antiquity, he bought his bride of
her parents, and she fulfilled the coemption by purchasing, with
three pieces of copper, a just introduction to his house and
household deities. A sacrifice of fruits was offered by the
pontiffs in the presence of ten witnesses; the contracting
parties were seated on the same sheep-skin; they tasted a salt
cake of far or rice; and this confarreation, ^116 which denoted
the ancient food of Italy, served as an emblem of their mystic
union of mind and body. But this union on the side of the woman
was rigorous and unequal; and she renounced the name and worship
of her father's house, to embrace a new servitude, decorated only
by the title of adoption, a fiction of the law, neither rational
nor elegant, bestowed on the mother of a family ^117 (her proper
appellation) the strange characters of sister to her own
children, and of daughter to her husband or master, who was
invested with the plenitude of paternal power. By his judgment
or caprice her behavior was approved, or censured, or chastised;
he exercised the jurisdiction of life and death; and it was
allowed, that in the cases of adultery or drunkenness, ^118 the
sentence might be properly inflicted. She acquired and inherited
for the sole profit of her lord; and so clearly was woman
defined, not as a person, but as a thing, that, if the original
title were deficient, she might be claimed, like other movables,
by the use and possession of an entire year. The inclination of
the Roman husband discharged or withheld the conjugal debt, so
scrupulously exacted by the Athenian and Jewish laws: ^119 but as
polygamy was unknown, he could never admit to his bed a fairer or
a more favored partner.

[Footnote 115: Dionys. Hal. l. ii. p. 92, 93. Plutarch, in Numa,
p. 140-141.]
[Footnote 116: Among the winter frunenta, the triticum, or
bearded wheat; the siligo, or the unbearded; the far, adorea,
oryza, whose description perfectly tallies with the rice of Spain
and Italy. I adopt this identity on the credit of M. Paucton in
his useful and laborious Metrologie, (p. 517 - 529.)]
[Footnote 117: Aulus Gellius (Noctes Atticae, xviii. 6) gives a
ridiculous definition of Aelius Melissus, Matrona, quae semel
materfamilias quae saepius peperit, as porcetra and scropha in
the sow kind. He then adds the genuine meaning, quae in
matrimonium vel in manum convenerat.]

[Footnote 118: It was enough to have tasted wine, or to have
stolen the key of the cellar, (Plin. Hist. Nat. xiv. 14.)]

[Footnote 119: Solon requires three payments per month. By the
Misna, a daily debt was imposed on an idle, vigorous, young
husband; twice a week on a citizen; once on a peasant; once in
thirty days on a camel-driver; once in six months on a seaman.
But the student or doctor was free from tribute; and no wife, if
she received a weekly sustenance, could sue for a divorce; for
one week a vow of abstinence was allowed. Polygamy divided,
without multiplying, the duties of the husband, (Selden, Uxor
Ebraica, l. iii. c 6, in his works, vol ii. p. 717 - 720.)]

     After the Punic triumphs, the matrons of Rome aspired to the
common benefits of a free and opulent republic: their wishes were
gratified by the indulgence of fathers and lovers, and their
ambition was unsuccessfully resisted by the gravity of Cato the
Censor. ^120 They declined the solemnities of the old nuptiais;
defeated the annual prescription by an absence of three days;
and, without losing their name or independence, subscribed the
liberal and definite terms of a marriage contract. Of their
private fortunes, they communicated the use, and secured the
property: the estates of a wife could neither be alienated nor
mortgaged by a prodigal husband; their mutual gifts were
prohibited by the jealousy of the laws; and the misconduct of
either party might afford, under another name, a future subject
for an action of theft. To this loose and voluntary compact,
religious and civil rights were no longer essential; and, between
persons of a similar rank, the apparent community of life was
allowed as sufficient evidence of their nuptials. The dignity of
marriage was restored by the Christians, who derived all
spiritual grace from the prayers of the faithful and the
benediction of the priest or bishop. The origin, validity, and
duties of the holy institution were regulated by the tradition of
the synagogue, the precepts of the gospel, and the canons of
general or provincial synods; ^121 and the conscience of the
Christians was awed by the decrees and censures of their
ecclesiastical rulers. Yet the magistrates of Justinian were not
subject to the authority of the church: the emperor consulted the
unbelieving civilians of antiquity, and the choice of matrimonial
laws in the Code and Pandects, is directed by the earthly motives
of justice, policy, and the natural freedom of both sexes. ^122

[Footnote 120: On the Oppian law we may hear the mitigating
speech of Vaerius Flaccus, and the severe censorial oration of
the elder Cato, (Liv. xxxiv. l - 8.) But we shall rather hear the
polished historian of the eighth, than the rough orators of the
sixth, century of Rome. The principles, and even the style, of
Cato are more accurately preserved by Aulus Gellius, (x. 23.)]
[Footnote 121: For the system of Jewish and Catholic matrimony,
see Selden, Uxor Ebraica, Opp. vol. ii. p. 529 - 860,) Bingham,
(Christian Antiquities, l. xxii.,) and Chardon, (Hist. des
Sacremens, tom. vi.)]

[Footnote 122: The civil laws of marriage are exposed in the
Institutes, (l. i. tit. x.,) the Pandects, (l. xxiii. xxiv.
xxv.,) and the Code, (l. v.;) but as the title de ritu nuptiarum
is yet imperfect, we are obliged to explore the fragments of
Ulpian (tit. ix. p. 590, 591,) and the Collatio Legum Mosaicarum,
(tit. xvi. p. 790, 791,) with the notes of Pithaeus and
Schulting. They find in the Commentary of Servius (on the 1st
Georgia and the 4th Aeneid) two curious passages.]

     Besides the agreement of the parties, the essence of every
rational contract, the Roman marriage required the previous
approbation of the parents. A father might be forced by some
recent laws to supply the wants of a mature daughter; but even
his insanity was not gradually allowed to supersede the necessity
of his consent. The causes of the dissolution of matrimony have
varied among the Romans; ^123 but the most solemn sacrament, the
confarreation itself, might always be done away by rites of a
contrary tendency. In the first ages, the father of a family
might sell his children, and his wife was reckoned in the number
of his children: the domestic judge might pronounce the death of
the offender, or his mercy might expel her from his bed and
house; but the slavery of the wretched female was hopeless and
perpetual, unless he asserted for his own convenience the manly
prerogative of divorce. ^* The warmest applause has been lavished
on the virtue of the Romans, who abstained from the exercise of
this tempting privilege above five hundred years: ^124 but the
same fact evinces the unequal terms of a connection in which the
slave was unable to renounce her tyrant, and the tyrant was
unwilling to relinquish his slave. When the Roman matrons became
the equal and voluntary companions of their lords, a new
jurisprudence was introduced, that marriage, like other
partnerships, might be dissolved by the abdication of one of the
associates. In three centuries of prosperity and corruption, this
principle was enlarged to frequent practice and pernicious abuse.

Passion, interest, or caprice, suggested daily motives for the
dissolution of marriage; a word, a sign, a message, a letter, the
mandate of a freedman, declared the separation; the most tender
of human connections was degraded to a transient society of
profit or pleasure. According to the various conditions of life,
both sexes alternately felt the disgrace and injury: an
inconstant spouse transferred her wealth to a new family,
abandoning a numerous, perhaps a spurious, progeny to the
paternal authority and care of her late husband; a beautiful
virgin might be dismissed to the world, old, indigent, and
friendless; but the reluctance of the Romans, when they were
pressed to marriage by Augustus, sufficiently marks, that the
prevailing institutions were least favorable to the males. A
specious theory is confuted by this free and perfect experiment,
which demonstrates, that the liberty of divorce does not
contribute to happiness and virtue. The facility of separation
would destroy all mutual confidence, and inflame every trifling
dispute: the minute difference between a husband and a stranger,
which might so easily be removed, might still more easily be
forgotten; and the matron, who in five years can submit to the
embraces of eight husbands, must cease to reverence the chastity
of her own person. ^125
[Footnote 123: According to Plutarch, (p. 57,) Romulus allowed
only three grounds of a divorce - drunkenness, adultery, and
false keys. Otherwise, the husband who abused his supremacy
forfeited half his goods to the wife, and half to the goddess
Ceres, and offered a sacrifice (with the remainder?) to the
terrestrial deities. This strange law was either imaginary or
transient.]
[Footnote *: Montesquieu relates and explains this fact in a
different marnes Esprit des Loix, l. xvi. c. 16. - G.]

[Footnote 124: In the year of Rome 523, Spurius Carvilius Ruga
repudiated a fair, a good, but a barren, wife, (Dionysius Hal. l.
ii. p. 93. Plutarch, in Numa, p. 141; Valerius Maximus, l. ii.
c. 1; Aulus Gellius, iv. 3.) He was questioned by the censors,
and hated by the people; but his divorce stood unimpeached in
law.]

[Footnote 125: - Sic fiunt octo mariti Quinque per autumnos.
Juvenal, Satir. vi. 20.

A rapid succession, which may yet be credible, as well as the non
consulum numero, sed maritorum annos suos computant, of Seneca,
(de Beneficiis, iii. 16.) Jerom saw at Rome a triumphant husband
bury his twenty-first wife, who had interred twenty-two of his
less sturdy predecessors, (Opp. tom. i. p. 90, ad Gerontiam.) But
the ten husbands in a month of the poet Martial, is an
extravagant hyperbole, (l. 71. epigram 7.)]

     Insufficient remedies followed with distant and tardy steps
the rapid progress of the evil. The ancient worship of the
Romans afforded a peculiar goddess to hear and reconcile the
complaints of a married life; but her epithet of Viriplaca, ^126
the appeaser of husbands, too clearly indicates on which side
submission and repentance were always expected. Every act of a
citizen was subject to the judgment of the censors; the first who
used the privilege of divorce assigned, at their command, the
motives of his conduct; ^127 and a senator was expelled for
dismissing his virgin spouse without the knowledge or advice of
his friends. Whenever an action was instituted for the recovery
of a marriage portion, the proetor, as the guardian of equity,
examined the cause and the characters, and gently inclined the
scale in favor of the guiltless and injured party. Augustus, who
united the powers of both magistrates, adopted their different
modes of repressing or chastising the license of divorce. ^128
The presence of seven Roman witnesses was required for the
validity of this solemn and deliberate act: if any adequate
provocation had been given by the husband, instead of the delay
of two years, he was compelled to refund immediately, or in the
space of six months; but if he could arraign the manners of his
wife, her guilt or levity was expiated by the loss of the sixth
or eighth part of her marriage portion. The Christian princes
were the first who specified the just causes of a private
divorce; their institutions, from Constantine to Justinian,
appear to fluctuate between the custom of the empire and the
wishes of the church, ^129 and the author of the Novels too
frequently reforms the jurisprudence of the Code and Pandects. In
the most rigorous laws, a wife was condemned to support a
gamester, a drunkard, or a libertine, unless he were guilty of
homicide, poison, or sacrilege, in which cases the marriage, as
it should seem, might have been dissolved by the hand of the
executioner. But the sacred right of the husband was invariably
maintained, to deliver his name and family from the disgrace of
adultery: the list of mortal sins, either male or female, was
curtailed and enlarged by successive regulations, and the
obstacles of incurable impotence, long absence, and monastic
profession, were allowed to rescind the matrimonial obligation.
Whoever transgressed the permission of the law, was subject to
various and heavy penalties. The woman was stripped of her
wealth and ornaments, without excepting the bodkin of her hair:
if the man introduced a new bride into his bed, her fortune might
be lawfully seized by the vengeance of his exiled wife.
Forfeiture was sometimes commuted to a fine; the fine was
sometimes aggravated by transportation to an island, or
imprisonment in a monastery; the injured party was released from
the bonds of marriage; but the offender, during life, or a term
of years, was disabled from the repetition of nuptials. The
successor of Justinian yielded to the prayers of his unhappy
subjects, and restored the liberty of divorce by mutual consent:
the civilians were unanimous, ^130 the theologians were divided,
^131 and the ambiguous word, which contains the precept of
Christ, is flexible to any interpretation that the wisdom of a
legislator can demand.

[Footnote 126: Sacellum Viriplacae, (Valerius Maximus, l. ii. c.
1,) in the Palatine region, appears in the time of Theodosius, in
the description of Rome by Publius Victor.]

[Footnote 127: Valerius Maximus, l. ii. c. 9. With some
propriety he judges divorce more criminal than celibacy: illo
namque conjugalia sacre spreta tantum, hoc etiam injuriose
tractata.]

[Footnote 128: See the laws of Augustus and his successors, in
Heineccius, ad Legem Papiam-Poppaeam, c. 19, in Opp. tom. vi. P.
i. p. 323 - 333.]
[Footnote 129: Aliae sunt leges Caesarum, aliae Christi; aliud
Papinianus, aliud Paulus nocter praecipit, (Jerom. tom. i. p.
198. Selden, Uxor Ebraica l. iii. c. 31 p. 847 - 853.)]

[Footnote 130: The Institutes are silent; but we may consult the
Codes of Theodosius (l. iii. tit. xvi., with Godefroy's
Commentary, tom. i. p. 310 - 315) and Justinian, (l. v. tit.
xvii.,) the Pandects (l. xxiv. tit. ii.) and the Novels, (xxii.
cxvii. cxxvii. cxxxiv. cxl.) Justinian fluctuated to the last
between civil and ecclesiastical law.]

[Footnote 131: In pure Greek, it is not a common word; nor can
the proper meaning, fornication, be strictly applied to
matrimonial sin. In a figurative sense, how far, and to what
offences, may it be extended? Did Christ speak the Rabbinical or
Syriac tongue? Of what original word is the translation? How
variously is that Greek word translated in the versions ancient
and modern! There are two (Mark, x. 11, Luke, xvi. 18) to one
(Matthew, xix. 9) that such ground of divorce was not excepted by
Jesus. Some critics have presumed to think, by an evasive answer,
he avoided the giving offence either to the school of Sammai or
to that of Hillel, (Selden, Uxor Ebraica, l. iii. c. 18 - 22, 28,
31.)

     Note: But these had nothing to do with the question of a
divorce made by judicial authority. - Hugo.]

     The freedom of love and marriage was restrained among the
Romans by natural and civil impediments. An instinct, almost
innate and universal, appears to prohibit the incestuous commerce
^132 of parents and children in the infinite series of ascending
and descending generations. Concerning the oblique and
collateral branches, nature is indifferent, reason mute, and
custom various and arbitrary. In Egypt, the marriage of brothers
and sisters was admitted without scruple or exception: a Spartan
might espouse the daughter of his father, an Athenian, that of
his mother; and the nuptials of an uncle with his niece were
applauded at Athens as a happy union of the dearest relations.
The profane lawgivers of Rome were never tempted by interest or
superstition to multiply the forbidden degrees: but they
inflexibly condemned the marriage of sisters and brothers,
hesitated whether first cousins should be touched by the same
interdict; revered the parental character of aunts and uncles, ^*
and treated affinity and adoption as a just imitation of the ties
of blood. According to the proud maxims of the republic, a legal
marriage could only be contracted by free citizens; an honorable,
at least an ingenuous birth, was required for the spouse of a
senator: but the blood of kings could never mingle in legitimate
nuptials with the blood of a Roman; and the name of Stranger
degraded Cleopatra and Berenice, ^133 to live the concubines of
Mark Antony and Titus. ^134 This appellation, indeed, so
injurious to the majesty, cannot without indulgence be applied to
the manners, of these Oriental queens. A concubine, in the
strict sense of the civilians, was a woman of servile or plebeian
extraction, the sole and faithful companion of a Roman citizen,
who continued in a state of celibacy. Her modest station, below
the honors of a wife, above the infamy of a prostitute, was
acknowledged and approved by the laws: from the age of Augustus
to the tenth century, the use of this secondary marriage
prevailed both in the West and East; and the humble virtues of a
concubine were often preferred to the pomp and insolence of a
noble matron. In this connection, the two Antonines, the best of
princes and of men, enjoyed the comforts of domestic love: the
example was imitated by many citizens impatient of celibacy, but
regardful of their families. If at any time they desired to
legitimate their natural children, the conversion was instantly
performed by the celebration of their nuptials with a partner
whose faithfulness and fidelity they had already tried. ^* By
this epithet of natural, the offspring of the concubine were
distinguished from the spurious brood of adultery, prostitution,
and incest, to whom Justinian reluctantly grants the necessary
aliments of life; and these natural children alone were capable
of succeeding to a sixth part of the inheritance of their reputed
father. According to the rigor of law, bastards were entitled
only to the name and condition of their mother, from whom they
might derive the character of a slave, a stranger, or a citizen.
The outcasts of every family were adopted without reproach as the
children of the state. ^135 ^!

[Footnote 132: The principles of the Roman jurisprudence are
exposed by Justinian, (Institut. t. i. tit. x.;) and the laws and
manners of the different nations of antiquity concerning
forbidden degrees, &c., are copiously explained by Dr. Taylor in
his Elements of Civil Law, (p. 108, 314 - 339,) a work of
amusing, though various reading; but which cannot be praised for
philosophical precision.]

[Footnote *: According to the earlier law, (Gaii Instit. p. 27,)
a man might marry his niece on the brother's, not on the
sister's, side. The emperor Claudius set the example of the
former. In the Institutes, this distinction was abolished and
both declared illegal. - M.]

[Footnote 133: When her father Agrippa died, (A.D. 44,) Berenice
was sixteen years of age, (Joseph. tom. i. Antiquit. Judaic. l.
xix. c. 9, p. 952, edit. Havercamp.) She was therefore above
fifty years old when Titus (A.D. 79) invitus invitam invisit.
This date would not have adorned the tragedy or pastoral of the
tender Racine.]

[Footnote 134: The Aegyptia conjux of Virgil (Aeneid, viii. 688)
seems to be numbered among the monsters who warred with Mark
Antony against Augustus, the senate, and the gods of Italy.]

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

[Footnote 135: The humble but legal rights of concubines and
natural children are stated in the Institutes, (l. i. tit. x.,)
the Pandects, (l. i. tit. vii.,) the Code, (l. v. tit. xxv.,) and
the Novels, (lxxiv. lxxxix.) The researches of Heineccius and
Giannone, (ad Legem Juliam et Papiam-Poppaeam, c. iv. p. 164 -
175. Opere Posthume, p. 108 - 158) illustrate this interesting
and domestic subject.]

[Footnote !: See, however, the two fragments of laws in the newly
discovered extracts from the Theodosian Code, published by M. A.
Peyron, at Turin. By the first law of Constantine, the
legitimate offspring could alone inherit; where there were no
near legitimate relatives, the inheritance went to the fiscus.
The son of a certain Licinianus, who had inherited his father's
property under the supposition that he was legitimate, and had
been promoted to a place of dignity, was to be degraded, his
property confiscated, himself punished with stripes and
imprisonment. By the second, all persons, even of the highest
rank, senators, perfectissimi, decemvirs, were to be declared
infamous, and out of the protection of the Roman law, if born ex
ancilla, vel ancillae filia, vel liberta, vel libertae filia,
sive Romana facta, seu Latina, vel scaenicae filia, vel ex
tabernaria, vel ex tabernariae filia, vel humili vel abjecta, vel
lenonis, aut arenarii filia, vel quae mercimoniis publicis
praefuit. Whatever a fond father had conferred on such children
was revoked, and either restored to the legitimate children, or
confiscated to the state; the mothers, who were guily of thus
poisoning the minds of the fathers, were to be put to the torture
(tormentis subici jubemus.) The unfortunate son of Licinianus, it
appears from this second law, having fled, had been taken, and
was ordered to be kept in chains to work in the Gynaeceum at
Carthage. Cod. Theodor ab. A. Person, 87 - 90. - M.]

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part V.

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

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

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

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

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

[Footnote 138: The heredium of the first Romans is defined by
Varro, (de Re Rustica, l. i. c. ii. p. 141, c. x. p. 160, 161,
edit. Gesner,) and clouded by Pliny's declamation, (Hist. Natur.
xviii. 2.) A just and learned comment is given in the
Administration des Terres chez les Romains, (p. 12 - 66.)
     Note: On the duo jugera, compare Niebuhr, vol. i. p. 337. -
M.]
[Footnote 139: The res mancipi is explained from faint and remote
lights by Ulpian (Fragment. tit. xviii. p. 618, 619) and
Bynkershoek, (Opp tom. i. p. 306 - 315.) The definition is
somewhat arbitrary; and as none except myself have assigned a
reason, I am diffident of my own.]

[Footnote 140: From this short prescription, Hume (Essays, vol.
i. p. 423) infers that there could not then be more order and
settlement in Italy than now amongst the Tartars. By the
civilian of his adversary Wallace, he is reproached, and not
without reason, for overlooking the conditions, (Institut. l. ii.
tit. vi.)

     Note: Gibbon acknowledges, in the former note, the obscurity
of his views with regard to the res mancipi. The interpreters,
who preceded him, are not agreed on this point, one of the most
difficult in the ancient Roman law. The conclusions of Hume, of
which the author here speaks, are grounded on false assumptions.
Gibbon had conceived very inaccurate notions of Property among
the Romans, and those of many authors in the present day are not
less erroneous. We think it right, in this place, to develop the
system of property among the Romans, as the result of the study
of the extant original authorities on the ancient law, and as it
has been demonstrated, recognized, and adopted by the most
learned expositors of the Roman law. Besides the authorities
formerly known, such as the Fragments of Ulpian, t. xix. and t.
i. 16. Theoph. Paraph. i. 5, 4, may be consulted the Institutes
of Gaius, i. 54, and ii. 40, et seq.

     The Roman laws protected all property acquired in a lawful
manner. They imposed on those who had invaded it, the obligation
of making restitution and reparation of all damage caused by that
invasion; they punished it moreover, in many cases, by a
pecuniary fine. But they did not always grant a recovery against
the third person, who had become bona fide possessed of the
property. He who had obtained possession of a thing belonging to
another, knowing nothing of the prior rights of that person,
maintained the possession. The law had expressly determined
those cases, in which it permitted property to be reclaimed from
an innocent possessor. In these cases possession had the
characters of absolute proprietorship, called mancipium, jus
Quiritium. To possess this right, it was not sufficient to have
entered into possession of the thing in any manner; the
acquisition was bound to have that character of publicity, which
was given by the observation of solemn forms, prescribed by the
laws, or the uninterrupted exercise of proprietorship during a
certain time: the Roman citizen alone could acquire this
proprietorship. Every other kind of possession, which might be
named imperfect proprietorship, was called "in bonis habere." It
was not till after the time of Cicero that the general name of
Dominium was given to all proprietorship.

     It was then the publicity which constituted the distinctive
character of absolute dominion. This publicity was grounded on
the mode of acquisition, which the moderns have called Civil,
(Modi adquirendi Civiles.) These modes of acquisition were,

     1. Mancipium or mancipatio, which was nothing but the solemn
delivering over of the thing in the presence of a determinate
number of witnesses and a public officer; it was from this
probably that proprietorship was named,
     2. In jure cessio, which was a solemn delivering over before
the praetor.
     3. Adjudicatio, made by a judge, in a case of partition.
     4. Lex, which comprehended modes of acquiring in particular
cases determined by law; probably the law of the xii. tables; for
instance, the sub corona emptio and the legatum.

     5. Usna, called afterwards usacapio, and by the moderns
prescription.
     This was only a year for movables; two years for things not
movable. Its primary object was altogether different from that
of prescription in the present day. It was originally introduced
in order to transform the simple possession of a thing (in bonis
habere) into Roman proprietorship. The public and uninterrupted
possession of a thing, enjoyed for the space of one or two years,
was sufficient to make known to the inhabitants of the city of
Rome to whom the thing belonged. This last mode of acquisition
completed the system of civil acquisitions. by legalizing. as it
were, every other kind of acquisition which was not conferred,
from the commencement, by the Jus Quiritium. V. Ulpian. Fragm.
i. 16. Gaius, ii. 14. We believe, according to Gaius, 43, that
this usucaption was extended to the case where a thing had been
acquired from a person not the real proprietor; and that
according to the time prescribed, it gave to the possessor the
Roman proprietorship. But this does not appear to have been the
original design of this Institution. Caeterum etiam earum rerum
usucapio nobis competit, quae non a domino nobis tradita fuerint,
si modo eas bona fide acceperimus Gaius, l ii. 43.
     As to things of smaller value, or those which it was
difficult to distinguish from each other, the solemnities of
which we speak were not requisite to obtain legal proprietorship.

In this case simple delivery was sufficient.

     In proportion to the aggrandizement of the Republic, this
latter principle became more important from the increase of the
commerce and wealth of the state. It was necessary to know what
were those things of which absolute property might be acquired by
simple delivery, and what, on the contrary, those, the
acquisition of which must be sanctioned by these solemnities.
This question was necessarily to be decided by a general rule;
and it is this rule which establishes the distinction between res
mancipi and nec mancipi, a distinction about which the opinions
of modern civilians differ so much that there are above ten
conflicting systems on the subject. The system which accords best
with a sound interpretation of the Roman laws, is that proposed
by M. Trekel of Hamburg, and still further developed by M. Hugo,
who has extracted it in the Magazine of Civil Law, vol. ii. p. 7.

This is the system now almost universally adopted. Res mancipi
(by contraction for mancipii) were things of which the absolute
property (Jus Quiritium) might be acquired only by the
solemnities mentioned above, at least by that of mancipation,
which was, without doubt, the most easy and the most usual.
Gaius, ii.  25. As for other things, the acquisition of which
was not subject to these forms, in order to confer absolute
right, they were called res nec mancipi. See Ulpian, Fragm. xix.
 1. 3, 7.

     Ulpian and Varro enumerate the different kinds of res
mancipi. Their enumerations do not quite agree; and various
methods of reconciling them have been attempted. The authority
of Ulpian, however, who wrote as a civilian, ought to have the
greater weight on this subject.

     But why are these things alone res mancipi? This is one of
the questions which have been most frequently agitated, and on
which the opinions of civilians are most divided. M. Hugo has
resolved it in the most natural and satisfactory manner. "All
things which were easily known individually, which were of great
value, with which the Romans were acquainted, and which they
highly appreciated, were res mancipi. Of old mancipation or some
other solemn form was required for the acquisition of these
things, an account of their importance. Mancipation served to
prove their acquisition, because they were easily distinguished
one from the other." On this great historical discussion consult
the Magazine of Civil Law by M. Hugo, vol. ii. p. 37, 38; the
dissertation of M. J. M. Zachariae, de Rebus Mancipi et nec
Mancipi Conjecturae, p. 11. Lipsiae, 1807; the History of Civil
Law by M. Hugo; and my Institutiones Juris Romani Privati p. 108,
110.

     As a general rule, it may be said that all things are res
nec mancipi; the res mancipi are the exception to this principle.

     The praetors changed the system of property by allowing a
person, who had a thing in bonis, the right to recover before the
prescribed term of usucaption had conferred absolute
proprietorship. (Pauliana in rem actio.) Justinian went still
further, in times when there was no longer any distinction
between a Roman citizen and a stranger. He granted the right of
recovering all things which had been acquired, whether by what
were called civil or natural modes of acquisition, Cod. l. vii.
t. 25, 31. And he so altered the theory of Gaius in his
Institutes, ii. 1, that no trace remains of the doctrine taught
by that civilian. - W.]

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

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

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

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

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

[Footnote 144: At Athens, the sons were equal; but the poor
daughters were endowed at the discretion of their brothers. See
the pleadings of Isaeus, (in the viith volume of the Greek
Orators,) illustrated by the version and comment of Sir William
Jones, a scholar, a lawyer, and a man of genius.]
[Footnote 145: In England, the eldest son also inherits all the
land; a law, says the orthodox Judge Blackstone, (Commentaries on
the Laws of England, vol. ii. p. 215,) unjust only in the opinion
of younger brothers. It may be of some political use in
sharpening their industry.]

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

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

[Footnote 148: Legem Voconiam (Ernesti, Clavis Ciceroniana) magna
voce bonis lateribus (at lxv. years of age) suasissem, says old
Cato, (de Senectute, c. 5,) Aulus Gellius (vii. 13, xvii. 6) has
saved some passages.]
[Footnote 149: See the law of succession in the Institutes of
Caius, (l. ii. tit. viii. p. 130 - 144,) and Justinian, (l. iii.
tit. i. - vi., with the Greek version of Theophilus, p. 515 -
575, 588 - 600,) the Pandects, (l. xxxviii. tit. vi. - xvii.,)
the Code, (l. vi. tit. lv. - lx.,) and the Novels, (cxviii.)]

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

[Footnote 150: That succession was the rule, testament the
exception, is proved by Taylor, (Elements of Civil Law, p. 519 -
527, (a learned, rambling, spirited writer. In the iid and iiid
books, the method of the Institutes is doubtless preposterous;
and the Chancellor Daguesseau (Oeuvres, tom. i. p. 275) wishes
his countryman Domat in the place of Tribonian. Yet covenants
before successions is not surely the natural order of civil
laws.]
[Footnote 151: Prior examples of testaments are perhaps fabulous.

At Athens a childless father only could make a will, (Plutarch,
in Solone, tom. i. p. 164. See Isaeus and Jones.)]

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

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

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

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

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

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

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

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

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part VI.

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

[Footnote 159: How much is the cool, rational evidence of
Polybius (l. vi. p. 693, l. xxxi. p. 1459, 1460) superior to
vague, indiscriminate applause - omnium maxime et praecipue fidem
coluit, (A. Gellius, xx. l.)]
[Footnote 160: The Jus Praetorium de Pactis et Transactionibus is
a separate and satisfactory treatise of Gerard Noodt, (Opp. tom.
i. p. 483 - 564.) And I will here observe, that the universities
of Holland and Brandenburg, in the beginning of the present
century, appear to have studied the civil law on the most just
and liberal principles.

     Note: Simple agreements (pacta) formed as valid an
obligation as a solemn contract. Only an action, or the right to
a direct judicial prosecution, was not permitted in every case of
compact. In all other respects, the judge was bound to maintain
an agreement made by pactum. The stipulation was a form common
to every kind of agreement, by which the right of action was
given to this. - W.]

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

[Footnote 161: The nice and various subject of contracts by
consent is spread over four books (xvii. - xx.) of the Pandects,
and is one of the parts best deserving of the attention of an
English student.

     Note: This is erroneously called "benefits." Gibbon
enumerates various kinds of contracts, of which some alone are
properly called benefits. - W.]
[Footnote 162: The covenants of rent are defined in the Pandects
(l. xix.) and the Code, (l. iv. tit. lxv.) The quinquennium, or
term of five years, appears to have been a custom rather than a
law; but in France all leases of land were determined in nine
years. This limitation was removed only in the year 1775,
(Encyclopedie Methodique, tom. i. de la Jurisprudence, p. 668,
669;) and I am sorry to observe that it yet prevails in the
beauteous and happy country where I am permitted to reside.]

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

[Footnote 164: Primo xii. Tabulis sancitum est ne quis unciario
foenore amplius exerceret, (Tacit. Annal. vi. 16.) Pour peu (says
Montesquieu, Esprit des Loix, l. xxii. 22) qu'on soit verse dans
l'histoire de Rome, on verra qu'une pareille loi ne devoit pas
etre l'ouvrage des decemvirs. Was Tacitus ignorant - or stupid?
But the wiser and more virtuous patricians might sacrifice their
avarice to their ambition, and might attempt to check the odious
practice by such interest as no lender would accept, and such
penalties as no debtor would incur.

     Note: The real nature of the foenus unciarium has been
proved; it amounted in a year of twelve months to ten per cent.
See, in the Magazine for Civil Law, by M. Hugo, vol. v. p. 180,
184, an article of M. Schrader, following up the conjectures of
Niebuhr, Hist. Rom. tom. ii. p. 431. - W.
     Compare a very clear account of this question in the
appendix to Mr. Travers Twiss's Epitome of Niebuhr, vol. ii. p.
257. - M.]
[Footnote 165: Justinian has not condescended to give usury a
place in his Institutes; but the necessary rules and restrictions
are inserted in the Pandects (l. xxii. tit. i. ii.) and the Code,
(l. iv. tit. xxxii. xxxiii.)]
[Footnote 166: The Fathers are unanimous, (Barbeyrac, Morale des
Peres, p. 144. &c.:) Cyprian, Lactantius, Basil, Chrysostom, (see
his frivolous arguments in Noodt, l. i. c. 7, p. 188,) Gregory of
Nyssa, Ambrose, Jerom, Augustin, and a host of councils and
casuists.]

[Footnote 167: Cato, Seneca, Plutarch, have loudly condemned the
practice or abuse of usury. According to the etymology of
foenus, the principal is supposed to generate the interest: a
breed of barren metal, exclaims Shakespeare - and the stage is
the echo of the public voice.]
     3. Nature and society impose the strict obligation of
repairing an injury; and the sufferer by private injustice
acquires a personal right and a legitimate action. If the
property of another be intrusted to our care, the requisite
degree of care may rise and fall according to the benefit which
we derive from such temporary possession; we are seldom made
responsible for inevitable accident, but the consequences of a
voluntary fault must always be imputed to the author. ^168 A
Roman pursued and recovered his stolen goods by a civil action of
theft; they might pass through a succession of pure and innocent
hands, but nothing less than a prescription of thirty years could
extinguish his original claim. They were restored by the
sentence of the praetor, and the injury was compensated by
double, or threefold, or even quadruple damages, as the deed had
been perpetrated by secret fraud or open rapine, as the robber
had been surprised in the fact, or detected by a subsequent
research. The Aquilian law ^169 defended the living property of
a citizen, his slaves and cattle, from the stroke of malice or
negligence: the highest price was allowed that could be ascribed
to the domestic animal at any moment of the year preceding his
death; a similar latitude of thirty days was granted on the
destruction of any other valuable effects. A personal injury is
blunted or sharpened by the manners of the times and the
sensibility of the individual: the pain or the disgrace of a word
or blow cannot easily be appreciated by a pecuniary equivalent.
The rude jurisprudence of the decemvirs had confounded all hasty
insults, which did not amount to the fracture of a limb, by
condemning the aggressor to the common penalty of twenty-five
asses. But the same denomination of money was reduced, in three
centuries, from a pound to the weight of half an ounce: and the
insolence of a wealthy Roman indulged himself in the cheap
amusement of breaking and satisfying the law of the twelve
tables. Veratius ran through the streets striking on the face
the inoffensive passengers, and his attendant purse-bearer
immediately silenced their clamors by the legal tender of
twenty-five pieces of copper, about the value of one shilling.
^170 The equity of the praetors examined and estimated the
distinct merits of each particular complaint. In the
adjudication of civil damages, the magistrate assumed a right to
consider the various circumstances of time and place, of age and
dignity, which may aggravate the shame and sufferings of the
injured person; but if he admitted the idea of a fine, a
punishment, an example, he invaded the province, though, perhaps,
he supplied the defects, of the criminal law.
[Footnote 168: Sir William Jones has given an ingenious and
rational Essay on the law of Bailment, (London, 1781, p. 127, in
8vo.) He is perhaps the only lawyer equally conversant with the
year-books of Westminster, the Commentaries of Ulpian, the Attic
pleadings of Isaeus, and the sentences of Arabian and Persian
cadhis.]

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

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

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

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

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

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

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

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

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

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

     8. The nocturnal mischief of damaging or destroying a
neighbor's corn. The criminal was suspended as a grateful victim
to Ceres. But the sylvan deities were less implacable, and the
extirpation of a more valuable tree was compensated by the
moderate fine of twenty-five pounds of copper.
     9. Magical incantations; which had power, in the opinion of
the Latin shepherds, to exhaust the strength of an enemy, to
extinguish his life, and to remove from their seats his
deep-rooted plantations.

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

[Footnote 171: The narrative of Livy (i. 28) is weighty and
solemn. At tu, Albane, maneres, is a harsh reflection, unworthy
of Virgil's humanity, (Aeneid, viii. 643.) Heyne, with his usual
good taste, observes that the subject was too horrid for the
shield of Aencas, (tom. iii. p. 229.)]
[Footnote 172: The age of Draco (Olympiad xxxix. l) is fixed by
Sir John Marsham (Canon Chronicus, p. 593 - 596) and Corsini,
(Fasti Attici, tom. iii. p. 62.) For his laws, see the writers on
the government of Athens, Sigonius, Meursius, Potter, &c.]

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

[Footnote 174: Livy mentions two remarkable and flagitious aeras,
of 3000 persons accused, and of 190 noble matrons convicted, of
the crime of poisoning, (xl. 43, viii. 18.) Mr. Hume
discriminates the ages of private and public virtue, (Essays,
vol. i. p. 22, 23.) I would rather say that such ebullitions of
mischief (as in France in the year 1680) are accidents and
prodigies which leave no marks on the manners of a nation.]
[Footnote 175: The xii. tables and Cicero (pro Roscio Amerino, c.
25, 26) are content with the sack; Seneca (Excerpt. Controvers. v
4) adorns it with serpents; Juvenal pities the guiltless monkey
(innoxia simia - 156.) Adrian (apud Dositheum Magistrum, l. iii.
c. p. 874 - 876, with Schulting's Note,) Modestinus, (Pandect.
xlviii. tit. ix. leg. 9,) Constantine, (Cod. l. ix. tit. xvii.,)
and Justinian, (Institut. l. iv. tit. xviii.,) enumerate all the
companions of the parricide. But this fanciful execution was
simplified in practice. Hodie tamen viv exuruntur vel ad bestias
dantur, (Paul. Sentent. Recept. l. v. tit. xxiv p. 512, edit.
Schulting.)]

[Footnote 176: The first parricide at Rome was L. Ostius, after
the second Punic war, (Plutarch, in Romulo, tom. i. p. 54.)
During the Cimbric, P. Malleolus was guilty of the first
matricide, (Liv. Epitom. l. lxviii.)]
[Footnote 177: Horace talks of the formidine fustis, (l. ii.
epist. ii. 154,) but Cicero (de Republica, l. iv. apud Augustin.
de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393,
edit. Olivet) affirms that the decemvirs made libels a capital
offence: cum perpaucas res capite sanxisent - perpaucus!]

[Footnote 178: Bynkershoek (Observat. Juris Rom. l. i. c. 1, in
Opp. tom. i. p. 9, 10, 11) labors to prove that the creditors
divided not the body, but the price, of the insolvent debtor.
Yet his interpretation is one perpetual harsh metaphor; nor can
he surmount the Roman authorities of Quintilian, Caecilius,
Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi.]
[Footnote *: Hugo (Histoire du Droit Romain, tom. i. p. 234)
concurs with Gibbon See Niebuhr, vol. ii. p. 313. - M.]

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

Each family contained a domestic tribunal, which was not
confined, like that of the praetor, to the cognizance of external
actions: virtuous principles and habits were inculcated by the
discipline of education; and the Roman father was accountable to
the state for the manners of his children, since he disposed,
without appeal, of their life, their liberty, and their
inheritance. In some pressing emergencies, the citizen was
authorized to avenge his private or public wrongs. The consent
of the Jewish, the Athenian, and the Roman laws approved the
slaughter of the nocturnal thief; though in open daylight a
robber could not be slain without some previous evidence of
danger and complaint. Whoever surprised an adulterer in his
nuptial bed might freely exercise his revenge; ^179 the most
bloody and wanton outrage was excused by the provocation; ^180
nor was it before the reign of Augustus that the husband was
reduced to weigh the rank of the offender, or that the parent was
condemned to sacrifice his daughter with her guilty seducer.
After the expulsion of the kings, the ambitious Roman, who should
dare to assume their title or imitate their tyranny, was devoted
to the infernal gods: each of his fellow-citizens was armed with
the sword of justice; and the act of Brutus, however repugnant to
gratitude or prudence, had been already sanctified by the
judgment of his country. ^181 The barbarous practice of wearing
arms in the midst of peace, ^182 and the bloody maxims of honor,
were unknown to the Romans; and, during the two purest ages, from
the establishment of equal freedom to the end of the Punic wars,
the city was never disturbed by sedition, and rarely polluted
with atrocious crimes. The failure of penal laws was more
sensibly felt, when every vice was inflamed by faction at home
and dominion abroad. In the time of Cicero, each private citizen
enjoyed the privilege of anarchy; each minister of the republic
was exalted to the temptations of regal power, and their virtues
are entitled to the warmest praise, as the spontaneous fruits of
nature or philosophy. After a triennial indulgence of lust,
rapine, and cruelty, Verres, the tyrant of Sicily, could only be
sued for the pecuniary restitution of three hundred thousand
pounds sterling; and such was the temper of the laws, the judges,
and perhaps the accuser himself, ^183 that, on refunding a
thirteenth part of his plunder, Verres could retire to an easy
and luxurious exile. ^184
[Footnote 179: The first speech of Lysias (Reiske, Orator. Graec.
tom. v. p. 2 - 48) is in defence of a husband who had killed the
adulterer. The rights of husbands and fathers at Rome and Athens
are discussed with much learning by Dr. Taylor, (Lectiones
Lysiacae, c. xi. in Reiske, tom. vi. p. 301 - 308.)]
[Footnote 180: See Casaubon ad Athenaeum, l. i. c. 5, p. 19.
Percurrent raphanique mugilesque, (Catull. p. 41, 42, edit.
Vossian.) Hunc mugilis intrat, (Juvenal. Satir. x. 317.) Hunc
perminxere calones, (Horat l. i. Satir. ii. 44.) Familiae
stuprandum dedit . . fraudi non fuit, (Val. Maxim. l. vi. c. l,
No. 13.)]

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

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

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

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

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

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

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

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

[Footnote 188: The abactores or abigeatores, who drove one horse,
or two mares or oxen, or five hogs, or ten goats, were subject to
capital punishment, (Paul, Sentent. Recept. l. iv. tit. xviii. p.
497, 498.) Hadrian, (ad Concil. Baeticae,) most severe where the
offence was most frequent, condemns the criminals, ad gladium,
ludi damnationem, (Ulpian, de Officio Proconsulis, l. viii. in
Collatione Legum Mosaic. et Rom. tit. xi p. 235.)]
     A sin, a vice, a crime, are the objects of theology, ethics,
and jurisprudence. Whenever their judgments agree, they
corroborate each other; but, as often as they differ, a prudent
legislator appreciates the guilt and punishment according to the
measure of social injury. On this principle, the most daring
attack on the life and property of a private citizen is judged
less atrocious than the crime of treason or rebellion, which
invades the majesty of the republic: the obsequious civilians
unanimously pronounced, that the republic is contained in the
person of its chief; and the edge of the Julian law was sharpened
by the incessant diligence of the emperors. The licentious
commerce of the sexes may be tolerated as an impulse of nature,
or forbidden as a source of disorder and corruption; but the
fame, the fortunes, the family of the husband, are seriously
injured by the adultery of the wife. The wisdom of Augustus,
after curbing the freedom of revenge, applied to this domestic
offence the animadversion of the laws: and the guilty parties,
after the payment of heavy forfeitures and fines, were condemned
to long or perpetual exile in two separate islands. ^189 Religion
pronounces an equal censure against the infidelity of the
husband; but, as it is not accompanied by the same civil effects,
the wife was never permitted to vindicate her wrongs; ^190 and
the distinction of simple or double adultery, so familiar and so
important in the canon law, is unknown to the jurisprudence of
the Code and the Pandects. I touch with reluctance, and despatch
with impatience, a more odious vice, of which modesty rejects the
name, and nature abominates the idea. The primitive Romans were
infected by the example of the Etruscans ^191 and Greeks: ^192
and in the mad abuse of prosperity and power, every pleasure that
is innocent was deemed insipid; and the Scatinian law, ^193 which
had been extorted by an act of violence, was insensibly abolished
by the lapse of time and the multitude of criminals. By this
law, the rape, perhaps the seduction, of an ingenuous youth, was
compensated, as a personal injury, by the poor damages of ten
thousand sesterces, or fourscore pounds; the ravisher might be
slain by the resistance or revenge of chastity; and I wish to
believe, that at Rome, as in Athens, the voluntary and effeminate
deserter of his sex was degraded from the honors and the rights
of a citizen. ^194 But the practice of vice was not discouraged
by the severity of opinion: the indelible stain of manhood was
confounded with the more venial transgressions of fornication and
adultery, nor was the licentious lover exposed to the same
dishonor which he impressed on the male or female partner of his
guilt. From Catullus to Juvenal, ^195 the poets accuse and
celebrate the degeneracy of the times; and the reformation of
manners was feebly attempted by the reason and authority of the
civilians till the most virtuous of the Caesars proscribed the
sin against nature as a crime against society. ^196

[Footnote 189: Till the publication of the Julius Paulus of
Schulting, (l. ii. tit. xxvi. p. 317 - 323,) it was affirmed and
believed that the Julian laws punished adultery with death; and
the mistake arose from the fraud or error of Tribonian. Yet
Lipsius had suspected the truth from the narratives of Tacitus,
(Annal. ii. 50, iii. 24, iv. 42,) and even from the practice of
Augustus, who distinguished the treasonable frailties of his
female kindred.]
[Footnote 190: In cases of adultery, Severus confined to the
husband the right of public accusation, (Cod. Justinian, l. ix.
tit. ix. leg. 1.) Nor is this privilege unjust - so different are
the effects of male or female infidelity.]
[Footnote 191: Timon (l. i.) and Theopompus (l. xliii. apud
Athenaeum, l. xii. p. 517) describe the luxury and lust of the
Etruscans. About the same period (A. U. C. 445) the Roman youth
studied in Etruria, (liv. ix. 36.)]
[Footnote 192: The Persians had been corrupted in the same
school, (Herodot. l. i. c. 135.) A curious dissertation might be
formed on the introduction of paederasty after the time of Homer,
its progress among the Greeks of Asia and Europe, the vehemence
of their passions, and the thin device of virtue and friendship
which amused the philosophers of Athens. But scelera ostendi
oportet dum puniuntur, abscondi flagitia.]

[Footnote 193: The name, the date, and the provisions of this law
are equally doubtful, (Gravina, Opp. p. 432, 433. Heineccius,
Hist. Jur. Rom. No. 108. Ernesti, Clav. Ciceron. in Indice
Legum.) But I will observe that the nefanda Venus of the honest
German is styled aversa by the more polite Italian.]
[Footnote 194: See the oration of Aeschines against the catamite
Timarchus, (in Reiske, Orator. Graec. tom. iii. p. 21 - 184.)]

[Footnote 195: A crowd of disgraceful passages will force
themselves on the memory of the classic reader: I will only
remind him of the cool declaration of Ovid: -

Odi concubitus qui non utrumque resolvant. Hoc est quod puerum
tangar amore minus.]

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

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part VII.

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

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

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

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

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

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

A vote of the thirty five tribes could inflict a fine; but the
cognizance of all capital crimes was reserved by a fundamental
law to the assembly of the centuries, in which the weight of
influence and property was sure to preponderate. Repeated
proclamations and adjournments were interposed, to allow time for
prejudice and resentment to subside: the whole proceeding might
be annulled by a seasonable omen, or the opposition of a tribune;
and such popular trials were commonly less formidable to
innocence than they were favorable to guilt. But this union of
the judicial and legislative powers left it doubtful whether the
accused party was pardoned or acquitted; and, in the defence of
an illustrious client, the orators of Rome and Athens address
their arguments to the policy and benevolence, as well as to the
justice, of their sovereign. 2. The task of convening the
citizens for the trial of each offender became more difficult, as
the citizens and the offenders continually multiplied; and the
ready expedient was adopted of delegating the jurisdiction of the
people to the ordinary magistrates, or to extraordinary
inquisitors. In the first ages these questions were rare and
occasional. In the beginning of the seventh century of Rome they
were made perpetual: four praetors were annually empowered to sit
in judgment on the state offences of treason, extortion,
peculation, and bribery; and Sylla added new praetors and new
questions for those crimes which more directly injure the safety
of individuals. By these inquisitors the trial was prepared and
directed; but they could only pronounce the sentence of the
majority of judges, who with some truth, and more prejudice, have
been compared to the English juries. ^202 To discharge this
important, though burdensome office, an annual list of ancient
and respectable citizens was formed by the praetor. After many
constitutional struggles, they were chosen in equal numbers from
the senate, the equestrian order, and the people; four hundred
and fifty were appointed for single questions; and the various
rolls or decuries of judges must have contained the names of some
thousand Romans, who represented the judicial authority of the
state. In each particular cause, a sufficient number was drawn
from the urn; their integrity was guarded by an oath; the mode of
ballot secured their independence; the suspicion of partiality
was removed by the mutual challenges of the accuser and
defendant; and the judges of Milo, by the retrenchment of fifteen
on each side, were reduced to fifty-one voices or tablets, of
acquittal, of condemnation, or of favorable doubt. ^203 3. In his
civil jurisdiction, the praetor of the city was truly a judge,
and almost a legislator; but, as soon as he had prescribed the
action of law, he often referred to a delegate the determination
of the fact. With the increase of legal proceedings, the
tribunal of the centumvirs, in which he presided, acquired more
weight and reputation. But whether he acted alone, or with the
advice of his council, the most absolute powers might be trusted
to a magistrate who was annually chosen by the votes of the
people. The rules and precautions of freedom have required some
explanation; the order of despotism is simple and inanimate.
Before the age of Justinian, or perhaps of Diocletian, the
decuries of Roman judges had sunk to an empty title: the humble
advice of the assessors might be accepted or despised; and in
each tribunal the civil and criminal jurisdiction was
administered by a single magistrate, who was raised and disgraced
by the will of the emperor.
[Footnote 201: The important subject of the public questions and
judgments at Rome, is explained with much learning, and in a
classic style, by Charles Sigonius, (l. iii. de Judiciis, in Opp.
tom. iii. p. 679 - 864;) and a good abridgment may be found in
the Republique Romaine of Beaufort, (tom. ii. l. v. p. 1 - 121.)
Those who wish for more abstruse law may study Noodt, (de
Jurisdictione et Imperio Libri duo, tom. i. p. 93 - 134,)
Heineccius, (ad Pandect. l. i. et ii. ad Institut. l. iv. tit.
xvii Element. ad Antiquitat.) and Gravina (Opp. 230 - 251.)]

[Footnote 202: The office, both at Rome and in England, must be
considered as an occasional duty, and not a magistracy, or
profession. But the obligation of a unanimous verdict is
peculiar to our laws, which condemn the jurymen to undergo the
torture from whence they have exempted the criminal.]
[Footnote 203: We are indebted for this interesting fact to a
fragment of Asconius Pedianus, who flourished under the reign of
Tiberius. The loss of his Commentaries on the Orations of Cicero
has deprived us of a valuable fund of historical and legal
knowledge.]

     A Roman accused of any capital crime might prevent the
sentence of the law by voluntary exile, or death. Till his guilt
had been legally proved, his innocence was presumed, and his
person was free: till the votes of the last century had been
counted and declared, he might peaceably secede to any of the
allied cities of Italy, or Greece, or Asia. ^204 His fame and
fortunes were preserved, at least to his children, by this civil
death; and he might still be happy in every rational and sensual
enjoyment, if a mind accustomed to the ambitious tumult of Rome
could support the uniformity and silence of Rhodes or Athens. A
bolder effort was required to escape from the tyranny of the
Caesars; but this effort was rendered familiar by the maxims of
the stoics, the example of the bravest Romans, and the legal
encouragements of suicide. The bodies of condemned criminals were
exposed to public ignominy, and their children, a more serious
evil, were reduced to poverty by the confiscation of their
fortunes. But, if the victims of Tiberius and Nero anticipated
the decree of the prince or senate, their courage and despatch
were recompensed by the applause of the public, the decent honors
of burial, and the validity of their testaments. ^205 The
exquisite avarice and cruelty of Domitian appear to have deprived
the unfortunate of this last consolation, and it was still denied
even by the clemency of the Antonines. A voluntary death, which,
in the case of a capital offence, intervened between the
accusation and the sentence, was admitted as a confession of
guilt, and the spoils of the deceased were seized by the inhuman
claims of the treasury. ^206 Yet the civilians have always
respected the natural right of a citizen to dispose of his life;
and the posthumous disgrace invented by Tarquin, ^207 to check
the despair of his subjects, was never revived or imitated by
succeeding tyrants. The powers of this world have indeed lost
their dominion over him who is resolved on death; and his arm can
only be restrained by the religious apprehension of a future
state. Suicides are enumerated by Virgil among the unfortunate,
rather than the guilty; ^208 and the poetical fables of the
infernal shades could not seriously influence the faith or
practice of mankind. But the precepts of the gospel, or the
church, have at length imposed a pious servitude on the minds of
Christians, and condemn them to expect, without a murmur, the
last stroke of disease or the executioner.
[Footnote 204: Polyb. l. vi. p. 643. The extension of the empire
and city of Rome obliged the exile to seek a more distant place
of retirement.]
[Footnote 205: Qui de se statuebant, humabanta corpora, manebant
testamenta; pretium festinandi. Tacit. Annal. vi. 25, with the
Notes of Lipsius.]
[Footnote 206: Julius Paulus, (Sentent. Recept. l. v. tit. xii.
p. 476,) the Pandects, (xlviii. tit. xxi.,) the Code, (l. ix.
tit. l.,) Bynkershoek, (tom. i. p. 59, Observat. J. C. R. iv. 4,)
and Montesquieu, (Esprit des Loix, l. xxix. c. ix.,) define the
civil limitations of the liberty and privileges of suicide. The
criminal penalties are the production of a later and darker age.]

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

[Footnote 208: The sole resemblance of a violent and premature
death has engaged Virgil (Aeneid, vi. 434 - 439) to confound
suicides with infants, lovers, and persons unjustly condemned.
Heyne, the best of his editors, is at a loss to deduce the idea,
or ascertain the jurisprudence, of the Roman poet.]
     The penal statutes form a very small proportion of the
sixty-two books of the Code and Pandects; and in all judicial
proceedings, the life or death of a citizen is determined with
less caution or delay than the most ordinary question of covenant
or inheritance. This singular distinction, though something may
be allowed for the urgent necessity of defending the peace of
society, is derived from the nature of criminal and civil
jurisprudence. Our duties to the state are simple and uniform:
the law by which he is condemned is inscribed not only on brass
or marble, but on the conscience of the offender, and his guilt
is commonly proved by the testimony of a single fact. But our
relations to each other are various and infinite; our obligations
are created, annulled, and modified, by injuries, benefits, and
promises; and the interpretation of voluntary contracts and
testaments, which are often dictated by fraud or ignorance,
affords a long and laborious exercise to the sagacity of the
judge. The business of life is multiplied by the extent of
commerce and dominion, and the residence of the parties in the
distant provinces of an empire is productive of doubt, delay, and
inevitable appeals from the local to the supreme magistrate.
Justinian, the Greek emperor of Constantinople and the East, was
the legal successor of the Latin shepherd who had planted a
colony on the banks of the Tyber. In a period of thirteen
hundred years, the laws had reluctantly followed the changes of
government and manners; and the laudable desire of conciliating
ancient names with recent institutions destroyed the harmony, and
swelled the magnitude, of the obscure and irregular system. The
laws which excuse, on any occasions, the ignorance of their
subjects, confess their own imperfections: the civil
jurisprudence, as it was abridged by Justinian, still continued a
mysterious science, and a profitable trade, and the innate
perplexity of the study was involved in tenfold darkness by the
private industry of the practitioners. The expense of the pursuit
sometimes exceeded the value of the prize, and the fairest rights
were abandoned by the poverty or prudence of the claimants. Such
costly justice might tend to abate the spirit of litigation, but
the unequal pressure serves only to increase the influence of the
rich, and to aggravate the misery of the poor. By these dilatory
and expensive proceedings, the wealthy pleader obtains a more
certain advantage than he could hope from the accidental
corruption of his judge. The experience of an abuse, from which
our own age and country are not perfectly exempt, may sometimes
provoke a generous indignation, and extort the hasty wish of
exchanging our elaborate jurisprudence for the simple and summary
decrees of a Turkish cadhi. Our calmer reflection will suggest,
that such forms and delays are necessary to guard the person and
property of the citizen; that the discretion of the judge is the
first engine of tyranny; and that the laws of a free people
should foresee and determine every question that may probably
arise in the exercise of power and the transactions of industry.
But the government of Justinian united the evils of liberty and
servitude; and the Romans were oppressed at the same time by the
multiplicity of their laws and the arbitrary will of their
master.

Chapter XLV: State Of Italy Under The Lombards.

Part I.

     Reign Of The Younger Justin. - Embassy Of The Avars. - Their
Settlement On The Danube. - Conquest Of Italy By The Lombards. -
Adoption And Reign Of Tiberius. - Of Maurice. - State Of Italy
Under The Lombards And The Exarchs. - Of Ravenna. - Distress Of
Rome. - Character And Pontificate Of Gregory The First.

     During the last years of Justinian, his infirm mind was
devoted to heavenly contemplation, and he neglected the business
of the lower world. His subjects were impatient of the long
continuance of his life and reign: yet all who were capable of
reflection apprehended the moment of his death, which might
involve the capital in tumult, and the empire in civil war. Seven
nephews ^1 of the childless monarch, the sons or grandsons of his
brother and sister, had been educated in the splendor of a
princely fortune; they had been shown in high commands to the
provinces and armies; their characters were known, their
followers were zealous, and, as the jealousy of age postponed the
declaration of a successor, they might expect with equal hopes
the inheritance of their uncle. He expired in his palace, after
a reign of thirty-eight years; and the decisive opportunity was
embraced by the friends of Justin, the son of Vigilantia. ^2 At
the hour of midnight, his domestics were awakened by an
importunate crowd, who thundered at his door, and obtained
admittance by revealing themselves to be the principal members of
the senate. These welcome deputies announced the recent and
momentous secret of the emperor's decease; reported, or perhaps
invented, his dying choice of the best beloved and most deserving
of his nephews, and conjured Justin to prevent the disorders of
the multitude, if they should perceive, with the return of light,
that they were left without a master. After composing his
countenance to surprise, sorrow, and decent modesty, Justin, by
the advice of his wife Sophia, submitted to the authority of the
senate. He was conducted with speed and silence to the palace;
the guards saluted their new sovereign; and the martial and
religious rites of his coronation were diligently accomplished.
By the hands of the proper officers he was invested with the
Imperial garments, the red buskins, white tunic, and purple robe.

A fortunate soldier, whom he instantly promoted to the rank of
tribune, encircled his neck with a military collar; four robust
youths exalted him on a shield; he stood firm and erect to
receive the adoration of his subjects; and their choice was
sanctified by the benediction of the patriarch, who imposed the
diadem on the head of an orthodox prince. The hippodrome was
already filled with innumerable multitudes; and no sooner did the
emperor appear on his throne, than the voices of the blue and the
green factions were confounded in the same loyal acclamations.
In the speeches which Justin addressed to the senate and people,
he promised to correct the abuses which had disgraced the age of
his predecessor, displayed the maxims of a just and beneficent
government, and declared that, on the approaching calends of
January, ^3 he would revive in his own person the name and
liberty of a Roman consul. The immediate discharge of his
uncle's debts exhibited a solid pledge of his faith and
generosity: a train of porters, laden with bags of gold, advanced
into the midst of the hippodrome, and the hopeless creditors of
Justinian accepted this equitable payment as a voluntary gift.
Before the end of three years, his example was imitated and
surpassed by the empress Sophia, who delivered many indigent
citizens from the weight of debt and usury: an act of benevolence
the best entitled to gratitude, since it relieves the most
intolerable distress; but in which the bounty of a prince is the
most liable to be abused by the claims of prodigality and fraud.
^4
[Footnote 1: See the family of Justin and Justinian in the
Familiae Byzantine of Ducange, p. 89 - 101. The devout
civilians, Ludewig (in Vit. Justinian. p. 131) and Heineccius
(Hist. Juris. Roman. p. 374) have since illustrated the genealogy
of their favorite prince.]

[Footnote 2: In the story of Justin's elevation I have translated
into simple and concise prose the eight hundred verses of the two
first books of Corippus, de Laudibus Justini Appendix Hist.
Byzant. p. 401 - 416 Rome 1777.]
[Footnote 3: It is surprising how Pagi (Critica. in Annal. Baron.
tom. ii. p 639) could be tempted by any chronicles to contradict
the plain and decisive text of Corippus, (vicina dona, l. ii.
354, vicina dies, l. iv. 1,) and to postpone, till A.D. 567, the
consulship of Justin.]

[Footnote 4: Theophan. Chronograph. p. 205. Whenever Cedrenus or
Zonaras are mere transcribers, it is superfluous to allege their
testimony.]
     On the seventh day of his reign, Justin gave audience to the
ambassadors of the Avars, and the scene was decorated to impress
the Barbarians with astonishment, veneration, and terror. From
the palace gate, the spacious courts and long porticos were lined
with the lofty crests and gilt bucklers of the guards, who
presented their spears and axes with more confidence than they
would have shown in a field of battle. The officers who
exercised the power, or attended the person, of the prince, were
attired in their richest habits, and arranged according to the
military and civil order of the hierarchy. When the veil of the
sanctuary was withdrawn, the ambassadors beheld the emperor of
the East on his throne, beneath a canopy, or dome, which was
supported by four columns, and crowned with a winged figure of
Victory. In the first emotions of surprise, they submitted to
the servile adoration of the Byzantine court; but as soon as they
rose from the ground, Targetius, the chief of the embassy,
expressed the freedom and pride of a Barbarian. He extolled, by
the tongue of his interpreter, the greatness of the chagan, by
whose clemency the kingdoms of the South were permitted to exist,
whose victorious subjects had traversed the frozen rivers of
Scythia, and who now covered the banks of the Danube with
innumerable tents. The late emperor had cultivated, with annual
and costly gifts, the friendship of a grateful monarch, and the
enemies of Rome had respected the allies of the Avars. The same
prudence would instruct the nephew of Justinian to imitate the
liberality of his uncle, and to purchase the blessings of peace
from an invincible people, who delighted and excelled in the
exercise of war. The reply of the emperor was delivered in the
same strain of haughty defiance, and he derived his confidence
from the God of the Christians, the ancient glory of Rome, and
the recent triumphs of Justinian. "The empire," said he, "abounds
with men and horses, and arms sufficient to defend our frontiers,
and to chastise the Barbarians. You offer aid, you threaten
hostilities: we despise your enmity and your aid. The conquerors
of the Avars solicit our alliance; shall we dread their fugitives
and exiles? ^5 The bounty of our uncle was granted to your
misery, to your humble prayers. From us you shall receive a more
important obligation, the knowledge of your own weakness. Retire
from our presence; the lives of ambassadors are safe; and, if you
return to implore our pardon, perhaps you will taste of our
benevolence." ^6 On the report of his ambassadors, the chagan was
awed by the apparent firmness of a Roman emperor of whose
character and resources he was ignorant. Instead of executing his
threats against the Eastern empire, he marched into the poor and
savage countries of Germany, which were subject to the dominion
of the Franks. After two doubtful battles, he consented to
retire, and the Austrasian king relieve the distress of his camp
with an immediate supply of corn and cattle. ^7 Such repeated
disappointments had chilled the spirit of the Avars, and their
power would have dissolved away in the Sarmatian desert, if the
alliance of Alboin, king of the Lombards, had not given a new
object to their arms, and a lasting settlement to their wearied
fortunes.

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

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

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

     While Alboin served under his father's standard, he
encountered in battle, and transpierced with his lance, the rival
prince of the Gepidae. The Lombards, who applauded such early
prowess, requested his father, with unanimous acclamations, that
the heroic youth, who had shared the dangers of the field, might
be admitted to the feast of victory. "You are not unmindful,"
replied the inflexible Audoin, "of the wise customs of our
ancestors. Whatever may be his merit, a prince is incapable of
sitting at table with his father till he has received his arms
from a foreign and royal hand." Alboin bowed with reverence to
the institutions of his country, selected forty companions, and
boldly visited the court of Turisund, king of the Gepidae, who
embraced and entertained, according to the laws of hospitality,
the murderer of his son. At the banquet, whilst Alboin occupied
the seat of the youth whom he had slain, a tender remembrance
arose in the mind of Turisund. "How dear is that place! how
hateful is that person!" were the words that escaped, with a
sigh, from the indignant father. His grief exasperated the
national resentment of the Gepidae; and Cunimund, his surviving
son, was provoked by wine, or fraternal affection, to the desire
of vengeance. "The Lombards," said the rude Barbarian,
"resemble, in figure and in smell, the mares of our Sarmatian
plains." And this insult was a coarse allusion to the white bands
which enveloped their legs. "Add another resemblance," replied
an audacious Lombard; "you have felt how strongly they kick.
Visit the plain of Asfield, and seek for the bones of thy
brother: they are mingled with those of the vilest animals." The
Gepidae, a nation of warriors, started from their seats, and the
fearless Alboin, with his forty companions, laid their hands on
their swords. The tumult was appeased by the venerable
interposition of Turisund. He saved his own honor, and the life
of his guest; and, after the solemn rites of investiture,
dismissed the stranger in the bloody arms of his son; the gift of
a weeping parent. Alboin returned in triumph; and the Lombards,
who celebrated his matchless intrepidity, were compelled to
praise the virtues of an enemy. ^8 In this extraordinary visit he
had probably seen the daughter of Cunimund, who soon after
ascended the throne of the Gepidae. Her name was Rosamond, an
appellation expressive of female beauty, and which our own
history or romance has consecrated to amorous tales. The king of
the Lombards (the father of Alboin no longer lived) was
contracted to the granddaughter of Clovis; but the restraints of
faith and policy soon yielded to the hope of possessing the fair
Rosamond, and of insulting her family and nation. The arts of
persuasion were tried without success; and the impatient lover,
by force and stratagem, obtained the object of his desires. War
was the consequence which he foresaw and solicited; but the
Lombards could not long withstand the furious assault of the
Gepidae, who were sustained by a Roman army. And, as the offer
of marriage was rejected with contempt, Alboin was compelled to
relinquish his prey, and to partake of the disgrace which he had
inflicted on the house of Cunimund. ^9

[Footnote 8: Paul Warnefrid, the deacon of Friuli, de Gest.
Langobard. l. i. c. 23, 24. His pictures of national manners,
though rudely sketched are more lively and faithful than those of
Bede, or Gregory of Tours]
[Footnote 9: The story is told by an impostor, (Theophylact.
Simocat. l. vi. c. 10;) but he had art enough to build his
fictions on public and notorious facts.]

     When a public quarrel is envenomed by private injuries, a
blow that is not mortal or decisive can be productive only of a
short truce, which allows the unsuccessful combatant to sharpen
his arms for a new encounter. The strength of Alboin had been
found unequal to the gratification of his love, ambition, and
revenge: he condescended to implore the formidable aid of the
chagan; and the arguments that he employed are expressive of the
art and policy of the Barbarians. In the attack of the Gepidae,
he had been prompted by the just desire of extirpating a people
whom their alliance with the Roman empire had rendered the common
enemies of the nations, and the personal adversaries of the
chagan. If the forces of the Avars and the Lombards should unite
in this glorious quarrel, the victory was secure, and the reward
inestimable: the Danube, the Hebrus, Italy, and Constantinople,
would be exposed, without a barrier, to their invincible arms.
But, if they hesitated or delayed to prevent the malice of the
Romans, the same spirit which had insulted would pursue the Avars
to the extremity of the earth. These specious reasons were heard
by the chagan with coldness and disdain: he detained the Lombard
ambassadors in his camp, protracted the negotiation, and by turns
alleged his want of inclination, or his want of ability, to
undertake this important enterprise. At length he signified the
ultimate price of his alliance, that the Lombards should
immediately present him with a tithe of their cattle; that the
spoils and captives should be equally divided; but that the lands
of the Gepidae should become the sole patrimony of the Avars.
Such hard conditions were eagerly accepted by the passions of
Alboin; and, as the Romans were dissatisfied with the ingratitude
and perfidy of the Gepidae, Justin abandoned that incorrigible
people to their fate, and remained the tranquil spectator of this
unequal conflict. The despair of Cunimund was active and
dangerous. He was informed that the Avars had entered his
confines; but, on the strong assurance that, after the defeat of
the Lombards, these foreign invaders would easily be repelled, he
rushed forwards to encounter the implacable enemy of his name and
family. But the courage of the Gepidae could secure them no more
than an honorable death. The bravest of the nation fell in the
field of battle; the king of the Lombards contemplated with
delight the head of Cunimund; and his skull was fashioned into a
cup to satiate the hatred of the conqueror, or, perhaps, to
comply with the savage custom of his country. ^10 After this
victory, no further obstacle could impede the progress of the
confederates, and they faithfully executed the terms of their
agreement. ^11 The fair countries of Walachia, Moldavia,
Transylvania, and the other parts of Hungary beyond the Danube,
were occupied, without resistance, by a new colony of Scythians;
and the Dacian empire of the chagans subsisted with splendor
above two hundred and thirty years. The nation of the Gepidae
was dissolved; but, in the distribution of the captives, the
slaves of the Avars were less fortunate than the companions of
the Lombards, whose generosity adopted a valiant foe, and whose
freedom was incompatible with cool and deliberate tyranny. One
moiety of the spoil introduced into the camp of Alboin more
wealth than a Barbarian could readily compute. The fair Rosamond
was persuaded, or compelled, to acknowledge the rights of her
victorious lover; and the daughter of Cunimund appeared to
forgive those crimes which might be imputed to her own
irresistible charms.
[Footnote 10: It appears from Strabo, Pliny, and Ammianus
Marcellinus, that the same practice was common among the Scythian
tribes, (Muratori, Scriptores Rer. Italic. tom. i. p. 424.) The
scalps of North America are likewise trophies of valor. The
skull of Cunimund was preserved above two hundred years among the
Lombards; and Paul himself was one of the guests to whom Duke
Ratchis exhibited this cup on a high festival, (l. ii. c. 28.)]
[Footnote 11: Paul, l. i. c. 27. Menander, in Excerpt Legat. p.
110, 111.]
     The destruction of a mighty kingdom established the fame of
Alboin. In the days of Charlemagne, the Bavarians, the Saxons,
and the other tribes of the Teutonic language, still repeated the
songs which described the heroic virtues, the valor, liberality,
and fortune of the king of the Lombards. ^12 But his ambition was
yet unsatisfied; and the conqueror of the Gepidae turned his eyes
from the Danube to the richer banks of the Po, and the Tyber.
Fifteen years had not elapsed, since his subjects, the
confederates of Narses, had visited the pleasant climate of
Italy: the mountains, the rivers, the highways, were familiar to
their memory: the report of their success, perhaps the view of
their spoils, had kindled in the rising generation the flame of
emulation and enterprise. Their hopes were encouraged by the
spirit and eloquence of Alboin: and it is affirmed, that he spoke
to their senses, by producing at the royal feast, the fairest and
most exquisite fruits that grew spontaneously in the garden of
the world. No sooner had he erected his standard, than the
native strength of the Lombard was multiplied by the adventurous
youth of Germany and Scythia. The robust peasantry of Noricum
and Pannonia had resumed the manners of Barbarians; and the names
of the Gepidae, Bulgarians, Sarmatians, and Bavarians, may be
distinctly traced in the provinces of Italy. ^13 Of the Saxons,
the old allies of the Lombards, twenty thousand warriors, with
their wives and children, accepted the invitation of Alboin.
Their bravery contributed to his success; but the accession or
the absence of their numbers was not sensibly felt in the
magnitude of his host. Every mode of religion was freely
practised by its respective votaries. The king of the Lombards
had been educated in the Arian heresy; but the Catholics, in
their public worship, were allowed to pray for his conversion;
while the more stubborn Barbarians sacrificed a she-goat, or
perhaps a captive, to the gods of their fathers. ^14 The
Lombards, and their confederates, were united by their common
attachment to a chief, who excelled in all the virtues and vices
of a savage hero; and the vigilance of Alboin provided an ample
magazine of offensive and defensive arms for the use of the
expedition. The portable wealth of the Lombards attended the
march: their lands they cheerfully relinquished to the Avars, on
the solemn promise, which was made and accepted without a smile,
that if they failed in the conquest of Italy, these voluntary
exiles should be reinstated in their former possessions.

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter XLV: State Of Italy Under The Lombards.

Part II.

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

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

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

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

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

[Footnote 24: Dispositorque novus sacrae Baduarius aulae.
Successor soceri mox      factus Cura-palati. - Cerippus.

Baduarius is enumerated among the descendants and allies of the
house of Justinian. A family of noble Venetians (Casa Badoero)
built churches and gave dukes to the republic as early as the
ninth century; and, if their descent be admitted, no kings in
Europe can produce a pedigree so ancient and illustrious.
Ducange, Fam. Byzantin, p. 99 Amelot de la Houssaye, Gouvernement
de Venise, tom. ii. p. 555.]

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

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

[Footnote 27: Theophylact Simocatta (l. iii. c. 11) declares that
he shall give to posterity the speech of Justin as it was
pronounced, without attempting to correct the imperfections of
language or rhetoric. Perhaps the vain sophist would have been
incapable of producing such sentiments.]
     Among the virtues of Tiberius, ^28 his beauty (he was one of
the tallest and most comely of the Romans) might introduce him to
the favor of Sophia; and the widow of Justin was persuaded, that
she should preserve her station and influence under the reign of
a second and more youthful husband. But, if the ambitious
candidate had been tempted to flatter and dissemble, it was no
longer in his power to fulfil her expectations, or his own
promise. The factions of the hippodrome demanded, with some
impatience, the name of their new empress: both the people and
Sophia were astonished by the proclamation of Anastasia, the
secret, though lawful, wife of the emperor Tiberius. Whatever
could alleviate the disappointment of Sophia, Imperial honors, a
stately palace, a numerous household, was liberally bestowed by
the piety of her adopted son; on solemn occasions he attended and
consulted the widow of his benefactor; but her ambition disdained
the vain semblance of royalty, and the respectful appellation of
mother served to exasperate, rather than appease, the rage of an
injured woman. While she accepted, and repaid with a courtly
smile, the fair expressions of regard and confidence, a secret
alliance was concluded between the dowager empress and her
ancient enemies; and Justinian, the son of Germanus, was employed
as the instrument of her revenge. The pride of the reigning
house supported, with reluctance, the dominion of a stranger: the
youth was deservedly popular; his name, after the death of
Justin, had been mentioned by a tumultuous faction; and his own
submissive offer of his head with a treasure of sixty thousand
pounds, might be interpreted as an evidence of guilt, or at least
of fear. Justinian received a free pardon, and the command of
the eastern army. The Persian monarch fled before his arms; and
the acclamations which accompanied his triumph declared him
worthy of the purple. His artful patroness had chosen the month
of the vintage, while the emperor, in a rural solitude, was
permitted to enjoy the pleasures of a subject. On the first
intelligence of her designs, he returned to Constantinople, and
the conspiracy was suppressed by his presence and firmness. From
the pomp and honors which she had abused, Sophia was reduced to a
modest allowance: Tiberius dismissed her train, intercepted her
correspondence, and committed to a faithful guard the custody of
her person. But the services of Justinian were not considered by
that excellent prince as an aggravation of his offences: after a
mild reproof, his treason and ingratitude were forgiven; and it
was commonly believed, that the emperor entertained some thoughts
of contracting a double alliance with the rival of his throne.
The voice of an angel (such a fable was propagated) might reveal
to the emperor, that he should always triumph over his domestic
foes; but Tiberius derived a firmer assurance from the innocence
and generosity of his own mind.

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

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

[Footnote 29: It is therefore singular enough that Paul (l. iii.
c. 15) should distinguish him as the first Greek emperor - primus
ex Graecorum genere in Imperio constitutus. His immediate
predecessors had in deed been born in the Latin provinces of
Europe: and a various reading, in Graecorum Imperio, would apply
the expression to the empire rather than the prince.]
[Footnote 30: Consult, for the character and reign of Maurice,
the fifth and sixth books of Evagrius, particularly l. vi. c. l;
the eight books of his prolix and florid history by Theophylact
Simocatta; Theophanes, p. 213, &c.; Zonaras, tom. ii. l. xiv. p.
73; Cedrenus, p. 394.]

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

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

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

[Footnote 32: The Columna Rhegina, in the narrowest part of the
Faro of Messina, one hundred stadia from Rhegium itself, is
frequently mentioned in ancient geography. Cluver. Ital. Antiq.
tom. ii. p. 1295. Lucas Holsten. Annotat. ad Cluver. p. 301.
Wesseling, Itinerar. p. 106.]
[Footnote 33: The Greek historians afford some faint hints of the
wars of Italy (Menander, in Excerpt. Legat. p. 124, 126.
Theophylact, l. iii. c. 4.) The Latins are more satisfactory; and
especially Paul Warnefrid, (l iii. c. 13 - 34,) who had read the
more ancient histories of Secundus and Gregory of Tours.
Baronius produces some letters of the popes, &c.; and the times
are measured by the accurate scale of Pagi and Muratori.]

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

[Footnote 34: The papal advocates, Zacagni and Fontanini, might
justly claim the valley or morass of Commachio as a part of the
exarchate. But the ambition of including Modena, Reggio, Parma,
and Placentia, has darkened a geographical question somewhat
doubtful and obscure Even Muratori, as the servant of the house
of Este, is not free from partiality and prejudice.]
[Footnote 35: See Brenckman, Dissert. Ima de Republica
Amalphitana, p. 1 - 42, ad calcem Hist. Pandect. Florent.]

[Footnote 36: Gregor. Magn. l. iii. epist. 23, 25.]

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

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

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

[Footnote 39: Paul, de Gest. Langobard. l. iii. c. 5, 6, 7.]
[Footnote 40: Paul, l. ii. c. 9. He calls these families or
generations by the Teutonic name of Faras, which is likewise used
in the Lombard laws. The humble deacon was not insensible of the
nobility of his own race. See l. iv. c. 39.]

[Footnote 41: Compare No. 3 and 177 of the Laws of Rotharis.]
[Footnote 42: Paul, l. ii. c. 31, 32, l. iii. c. 16. The Laws of
Rotharis, promulgated A.D. 643, do not contain the smallest
vestige of this payment of thirds; but they preserve many curious
circumstances of the state of Italy and the manners of the
Lombards.]

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

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

[Footnote 45: Consult the xxist Dissertation of Muratori.]
[Footnote 46: Their ignorance is proved by the silence even of
those who professedly treat of the arts of hunting and the
history of animals. Aristotle, (Hist. Animal. l. ix. c. 36, tom.
i. p. 586, and the Notes of his last editor, M. Camus, tom. ii.
p. 314,) Pliny, (Hist. Natur. l. x. c. 10,) Aelian (de Natur.
Animal. l. ii. c. 42,) and perhaps Homer, (Odyss. xxii. 302 -
306,) describe with astonishment a tacit league and common chase
between the hawks and the Thracian fowlers.]

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

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

     Note: See Beckman, Hist. of Inventions, vol. i. p. 319 - M.]

Chapter XLV: State Of Italy Under The Lombards.

Part III.

     So rapid was the influence of climate and example, that the
Lombards of the fourth generation surveyed with curiosity and
affright the portraits of their savage forefathers. ^49 Their
heads were shaven behind, but the shaggy locks hung over their
eyes and mouth, and a long beard represented the name and
character of the nation. Their dress consisted of loose linen
garments, after the fashion of the Anglo-Saxons, which were
decorated, in their opinion, with broad stripes or variegated
colors. The legs and feet were clothed in long hose, and open
sandals; and even in the security of peace a trusty sword was
constantly girt to their side. Yet this strange apparel, and
horrid aspect, often concealed a gentle and generous disposition;
and as soon as the rage of battle had subsided, the captives and
subjects were sometimes surprised by the humanity of the victor.
The vices of the Lombards were the effect of passion, of
ignorance, of intoxication; their virtues are the more laudable,
as they were not affected by the hypocrisy of social manners, nor
imposed by the rigid constraint of laws and education. I should
not be apprehensive of deviating from my subject, if it were in
my power to delineate the private life of the conquerors of
Italy; and I shall relate with pleasure the adventurous gallantry
of Autharis, which breathes the true spirit of chivalry and
romance. ^50 After the loss of his promised bride, a Merovingian
princess, he sought in marriage the daughter of the king of
Bavaria; and Garribald accepted the alliance of the Italian
monarch. Impatient of the slow progress of negotiation, the
ardent lover escaped from his palace, and visited the court of
Bavaria in the train of his own embassy. At the public audience,
the unknown stranger advanced to the throne, and informed
Garribald that the ambassador was indeed the minister of state,
but that he alone was the friend of Autharis, who had trusted him
with the delicate commission of making a faithful report of the
charms of his spouse. Theudelinda was summoned to undergo this
important examination; and, after a pause of silent rapture, he
hailed her as the queen of Italy, and humbly requested that,
according to the custom of the nation, she would present a cup of
wine to the first of her new subjects. By the command of her
father she obeyed: Autharis received the cup in his turn, and, in
restoring it to the princess, he secretly touched her hand, and
drew his own finger over his face and lips. In the evening,
Theudelinda imparted to her nurse the indiscreet familiarity of
the stranger, and was comforted by the assurance, that such
boldness could proceed only from the king her husband, who, by
his beauty and courage, appeared worthy of her love. The
ambassadors were dismissed: no sooner did they reach the confines
of Italy than Autharis, raising himself on his horse, darted his
battle-axe against a tree with incomparable strength and
dexterity. "Such," said he to the astonished Bavarians, "such
are the strokes of the king of the Lombards." On the approach of
a French army, Garribald and his daughter took refuge in the
dominions of their ally; and the marriage was consummated in the
palace of Verona. At the end of one year, it was dissolved by
the death of Autharis: but the virtues of Theudelinda ^51 had
endeared her to the nation, and she was permitted to bestow, with
her hand, the sceptre of the Italian kingdom.
[Footnote 49: The epitaph of Droctulf (Paul, l. iii. c. 19) may
be applied to many of his countrymen: -

Terribilis visu facies, sed corda benignus Longaque robusto
pectore barba fuit.

The portraits of the old Lombards might still be seen in the
palace of Monza, twelve miles from Milan, which had been founded
or restored by Queen Theudelinda, (l. iv. 22, 23.) See Muratori,
tom. i. disserta, xxiii. p. 300.]
[Footnote 50: The story of Autharis and Theudelinda is related by
Paul, l. iii. 29, 34; and any fragment of Bavarian antiquity
excites the indefatigable diligence of the count de Buat, Hist.
des Peuples de l'Europe, ton. xi. p. 595 - 635, tom. xii. p. 1 -
53.]

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

     From this fact, as well as from similar events, ^52 it is
certain that the Lombards possessed freedom to elect their
sovereign, and sense to decline the frequent use of that
dangerous privilege. The public revenue arose from the produce
of land and the profits of justice. When the independent dukes
agreed that Autharis should ascend the throne of his father, they
endowed the regal office with a fair moiety of their respective
domains. The proudest nobles aspired to the honors of servitude
near the person of their prince: he rewarded the fidelity of his
vassals by the precarious gift of pensions and benefices; and
atoned for the injuries of war by the rich foundation of
monasteries and churches. In peace a judge, a leader in war, he
never usurped the powers of a sole and absolute legislator. The
king of Italy convened the national assemblies in the palace, or
more probably in the fields, of Pavia: his great council was
composed of the persons most eminent by their birth and
dignities; but the validity, as well as the execution, of their
decrees depended on the approbation of the faithful people, the
fortunate army of the Lombards. About fourscore years after the
conquest of Italy, their traditional customs were transcribed in
Teutonic Latin, ^53 and ratified by the consent of the prince and
people: some new regulations were introduced, more suitable to
their present condition; the example of Rotharis was imitated by
the wisest of his successors; and the laws of the Lombards have
been esteemed the least imperfect of the Barbaric codes. ^54
Secure by their courage in the possession of liberty, these rude
and hasty legislators were incapable of balancing the powers of
the constitution, or of discussing the nice theory of political
government. Such crimes as threatened the life of the sovereign,
or the safety of the state, were adjudged worthy of death; but
their attention was principally confined to the defence of the
person and property of the subject. According to the strange
jurisprudence of the times, the guilt of blood might be redeemed
by a fine; yet the high price of nine hundred pieces of gold
declares a just sense of the value of a simple citizen. Less
atrocious injuries, a wound, a fracture, a blow, an opprobrious
word, were measured with scrupulous and almost ridiculous
diligence; and the prudence of the legislator encouraged the
ignoble practice of bartering honor and revenge for a pecuniary
compensation. The ignorance of the Lombards in the state of
Paganism or Christianity gave implicit credit to the malice and
mischief of witchcraft, but the judges of the seventeenth century
might have been instructed and confounded by the wisdom of
Rotharis, who derides the absurd superstition, and protects the
wretched victims of popular or judicial cruelty. ^55 The same
spirit of a legislator, superior to his age and country, may be
ascribed to Luitprand, who condemns, while he tolerates, the
impious and inveterate abuse of duels, ^56 observing, from his
own experience, that the juster cause had often been oppressed by
successful violence. Whatever merit may be discovered in the
laws of the Lombards, they are the genuine fruit of the reason of
the Barbarians, who never admitted the bishops of Italy to a seat
in their legislative councils. But the succession of their kings
is marked with virtue and ability; the troubled series of their
annals is adorned with fair intervals of peace, order, and
domestic happiness; and the Italians enjoyed a milder and more
equitable government, than any of the other kingdoms which had
been founded on the ruins of the Western empire. ^57
[Footnote 52: Paul, l. iii. c. 16. The first dissertations of
Muratori, and the first volume of Giannone's history, may be
consulted for the state of the kingdom of Italy.]

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

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

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

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

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

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

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

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

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

[Footnote 61: Quia in uno se ore cum Jovis laudibus, Christi
laudes non capiunt, et quam grave nefandumque sit episcopis
canere quod nec laico religioso conveniat, ipse considera, (l.
ix. ep. 4.) The writings of Gregory himself attest his innocence
of any classic taste or literature]
[Footnote 62: Bayle, (Dictionnaire Critique, tom. ii. 598, 569,)
in a very good article of Gregoire I., has quoted, for the
buildings and statues, Platina in Gregorio I.; for the Palatine
library, John of Salisbury, (de Nugis Curialium, l. ii. c. 26;)
and for Livy, Antoninus of Florence: the oldest of the three
lived in the xiith century.]

     Like Thebes, or Babylon, or Carthage, the names of Rome
might have been erased from the earth, if the city had not been
animated by a vital principle, which again restored her to honor
and dominion. A vague tradition was embraced, that two Jewish
teachers, a tent-maker and a fisherman, had formerly been
executed in the circus of Nero, and at the end of five hundred
years, their genuine or fictitious relics were adored as the
Palladium of Christian Rome. The pilgrims of the East and West
resorted to the holy threshold; but the shrines of the apostles
were guarded by miracles and invisible terrors; and it was not
without fear that the pious Catholic approached the object of his
worship. It was fatal to touch, it was dangerous to behold, the
bodies of the saints; and those who, from the purest motives,
presumed to disturb the repose of the sanctuary, were affrighted
by visions, or punished with sudden death. The unreasonable
request of an empress, who wished to deprive the Romans of their
sacred treasure, the head of St. Paul, was rejected with the
deepest abhorrence; and the pope asserted, most probably with
truth, that a linen which had been sanctified in the neighborhood
of his body, or the filings of his chain, which it was sometimes
easy and sometimes impossible to obtain, possessed an equal
degree of miraculous virtue. ^63 But the power as well as virtue
of the apostles resided with living energy in the breast of their
successors; and the chair of St. Peter was filled under the reign
of Maurice by the first and greatest of the name of Gregory. ^64
His grandfather Felix had himself been pope, and as the bishops
were already bound by the laws of celibacy, his consecration must
have been preceded by the death of his wife. The parents of
Gregory, Sylvia, and Gordian, were the noblest of the senate, and
the most pious of the church of Rome; his female relations were
numbered among the saints and virgins; and his own figure, with
those of his father and mother, were represented near three
hundred years in a family portrait, ^65 which he offered to the
monastery of St. Andrew. The design and coloring of this picture
afford an honorable testimony that the art of painting was
cultivated by the Italians of the sixth century; but the most
abject ideas must be entertained of their taste and learning,
since the epistles of Gregory, his sermons, and his dialogues,
are the work of a man who was second in erudition to none of his
contemporaries: ^66 his birth and abilities had raised him to the
office of praefect of the city, and he enjoyed the merit of
renouncing the pomps and vanities of this world. His ample
patrimony was dedicated to the foundation of seven monasteries,
^67 one in Rome, ^68 and six in Sicily; and it was the wish of
Gregory that he might be unknown in this life, and glorious only
in the next. Yet his devotion (and it might be sincere) pursued
the path which would have been chosen by a crafty and ambitious
statesman. The talents of Gregory, and the splendor which
accompanied his retreat, rendered him dear and useful to the
church; and implicit obedience has always been inculcated as the
first duty of a monk. As soon as he had received the character
of deacon, Gregory was sent to reside at the Byzantine court, the
nuncio or minister of the apostolic see; and he boldly assumed,
in the name of St. Peter, a tone of independent dignity, which
would have been criminal and dangerous in the most illustrious
layman of the empire. He returned to Rome with a just increase of
reputation, and, after a short exercise of the monastic virtues,
he was dragged from the cloister to the papal throne, by the
unanimous voice of the clergy, the senate, and the people. He
alone resisted, or seemed to resist, his own elevation; and his
humble petition, that Maurice would be pleased to reject the
choice of the Romans, could only serve to exalt his character in
the eyes of the emperor and the public. When the fatal mandate
was proclaimed, Gregory solicited the aid of some friendly
merchants to convey him in a basket beyond the gates of Rome, and
modestly concealed himself some days among the woods and
mountains, till his retreat was discovered, as it is said, by a
celestial light.
[Footnote 63: Gregor. l. iii. epist. 24, edict. 12, &c. From the
epistles of Gregory, and the viiith volume of the Annals of
Baronius, the pious reader may collect the particles of holy iron
which were inserted in keys or crosses of gold, and distributed
in Britain, Gaul, Spain, Africa, Constantinople, and Egypt. The
pontifical smith who handled the file must have understood the
miracles which it was in his own power to operate or withhold; a
circumstance which abates the superstition of Gregory at the
expense of his veracity.]
[Footnote 64: Besides the epistles of Gregory himself, which are
methodized by Dupin, (Bibliotheque Eccles. tom. v. p. 103 - 126,)
we have three lives of the pope; the two first written in the
viiith and ixth centuries, (de Triplici Vita St. Greg. Preface to
the ivth volume of the Benedictine edition,) by the deacons Paul
(p. 1 - 18) and John, (p. 19 - 188,) and containing much
original, though doubtful, evidence; the third, a long and
labored compilation by the Benedictine editors, (p. 199 - 305.)
The annals of Baronius are a copious but partial history. His
papal prejudices are tempered by the good sense of Fleury, (Hist.
Eccles. tom. viii.,) and his chronology has been rectified by the
criticism of Pagi and Muratori.]

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

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

[Footnote 67: The Benedictines (Vit. Greg. l. i. p. 205 - 208)
labor to reduce the monasteries of Gregory within the rule of
their own order; but, as the question is confessed to be
doubtful, it is clear that these powerful monks are in the wrong.

See Butler's Lives of the Saints, vol. iii. p. 145; a work of
merit: the sense and learning belong to the author - his
prejudices are those of his profession.]

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

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

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

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

[Footnote 71: John the deacon (in Vit. Greg. l. ii. c. 7)
expresses the early contempt of the Italians for tramontane
singing. Alpina scilicet corpora vocum suarum tonitruis altisone
perstrepentia, susceptae modulationis dulcedinem proprie non
resultant: quia bibuli gutturis barbara feritas dum inflexionibus
et repercussionibus mitem nititur edere cantilenam, naturali
quodam fragore, quasi plaustra per gradus confuse sonantia,
rigidas voces jactat, &c. In the time of Charlemagne, the
Franks, though with some reluctance, admitted the justice of the
reproach. Muratori, Dissert. xxv.]
[Footnote 72: A French critic (Petrus Gussanvillus, Opera, tom.
ii. p. 105 -  112) has vindicated the right of Gregory to the
entire nonsense of the  Dialogues. Dupin (tom. v. p. 138) does
not think that any one will vouch for  the truth of all these
miracles: I should like to know how many of them he  believed
himself.]

     Their temporal power insensibly arose from the calamities of
the times: and the Roman bishops, who have deluged Europe and
Asia with blood, were compelled to reign as the ministers of
charity and peace. I. The church of Rome, as it has been
formerly observed, was endowed with ample possessions in Italy,
Sicily, and the more distant provinces; and her agents, who were
commonly sub-deacons, had acquired a civil, and even criminal,
jurisdiction over their tenants and husbandmen. The successor of
St. Peter administered his patrimony with the temper of a
vigilant and moderate landlord; ^73 and the epistles of Gregory
are filled with salutary instructions to abstain from doubtful or
vexatious lawsuits; to preserve the integrity of weights and
measures; to grant every reasonable delay; and to reduce the
capitation of the slaves of the glebe, who purchased the right of
marriage by the payment of an arbitrary fine. ^74 The rent or the
produce of these estates was transported to the mouth of the
Tyber, at the risk and expense of the pope: in the use of wealth
he acted like a faithful steward of the church and the poor, and
liberally applied to their wants the inexhaustible resources of
abstinence and order. The voluminous account of his receipts and
disbursements was kept above three hundred years in the Lateran,
as the model of Christian economy. On the four great festivals,
he divided their quarterly allowance to the clergy, to his
domestics, to the monasteries, the churches, the places of
burial, the almshouses, and the hospitals of Rome, and the rest
of the diocese. On the first day of every month, he distributed
to the poor, according to the season, their stated portion of
corn, wine, cheese, vegetables, oil, fish, fresh provisions,
clothes, and money; and his treasurers were continually summoned
to satisfy, in his name, the extraordinary demands of indigence
and merit. The instant distress of the sick and helpless, of
strangers and pilgrims, was relieved by the bounty of each day,
and of every hour; nor would the pontiff indulge himself in a
frugal repast, till he had sent the dishes from his own table to
some objects deserving of his compassion. The misery of the
times had reduced the nobles and matrons of Rome to accept,
without a blush, the benevolence of the church: three thousand
virgins received their food and raiment from the hand of their
benefactor; and many bishops of Italy escaped from the Barbarians
to the hospitable threshold of the Vatican. Gregory might justly
be styled the Father of his Country; and such was the extreme
sensibility of his conscience, that, for the death of a beggar
who had perished in the streets, he interdicted himself during
several days from the exercise of sacerdotal functions. II. The
misfortunes of Rome involved the apostolical pastor in the
business of peace and war; and it might be doubtful to himself,
whether piety or ambition prompted him to supply the place of his
absent sovereign. Gregory awakened the emperor from a long
slumber; exposed the guilt or incapacity of the exarch and his
inferior ministers; complained that the veterans were withdrawn
from Rome for the defence of Spoleto; encouraged the Italians to
guard their cities and altars; and condescended, in the crisis of
danger, to name the tribunes, and to direct the operations, of
the provincial troops. But the martial spirit of the pope was
checked by the scruples of humanity and religion: the imposition
of tribute, though it was employed in the Italian war, he freely
condemned as odious and oppressive; whilst he protected, against
the Imperial edicts, the pious cowardice of the soldiers who
deserted a military for a monastic life If we may credit his own
declarations, it would have been easy for Gregory to exterminate
the Lombards by their domestic factions, without leaving a king,
a duke, or a count, to save that unfortunate nation from the
vengeance of their foes As a Christian bishop, he preferred the
salutary offices of peace; his mediation appeased the tumult of
arms: but he was too conscious of the arts of the Greeks, and the
passions of the Lombards, to engage his sacred promise for the
observance of the truce. Disappointed in the hope of a general
and lasting treaty, he presumed to save his country without the
consent of the emperor or the exarch. The sword of the enemy was
suspended over Rome; it was averted by the mild eloquence and
seasonable gifts of the pontiff, who commanded the respect of
heretics and Barbarians. The merits of Gregory were treated by
the Byzantine court with reproach and insult; but in the
attachment of a grateful people, he found the purest reward of a
citizen, and the best right of a sovereign. ^75
[Footnote 73: Baronius is unwilling to expatiate on the care of
the patrimonies, lest he should betray that they consisted not of
kingdoms, but farms. The French writers, the Benedictine
editors, (tom. iv. l. iii. p. 272, &c.,) and Fleury, (tom. viii.
p. 29, &c.,) are not afraid of entering into these humble, though
useful, details; and the humanity of Fleury dwells on the social
virtues of Gregory.]

[Footnote 74: I much suspect that this pecuniary fine on the
marriages of villains produced the famous, and often fabulous
right, de cuissage, de marquette, &c. With the consent of her
husband, a handsome bride might commute the payment in the arms
of a young landlord, and the mutual favor might afford a
precedent of local rather than legal tyranny]
[Footnote 75: The temporal reign of Gregory I. is ably exposed by
Sigonius in the first book, de Regno Italiae. See his works,
tom. ii. p. 44 - 75]

Chapter XLVI: Troubles In Persia.

Part I.

     Revolutions On Persia After The Death Of Chosroes On
Nushirvan. - His Son Hormouz, A Tyrant, Is Deposed. - Usurpation
Of Baharam. - Flight And Restoration Of Chosroes II. - His
Gratitude To The Romans. - The Chagan Of The Avars. - Revolt Of
The Army Against Maurice. - His Death. - Tyranny Of Phocas. -
Elevation Of Heraclius. - The Persian War. - Chosroes Subdues
Syria, Egypt, And Asia Minor. - Siege Of Constantinople By The
Persians And Avars. - Persian Expeditions. - Victories And
Triumph Of Heraclius.

     The conflict of Rome and Persia was prolonged from the death
of Craesus to the reign of Heraclius. An experience of seven
hundred years might convince the rival nations of the
impossibility of maintaining their conquests beyond the fatal
limits of the Tigris and Euphrates. Yet the emulation of Trajan
and Julian was awakened by the trophies of Alexander, and the
sovereigns of Persia indulged the ambitious hope of restoring the
empire of Cyrus. ^1 Such extraordinary efforts of power and
courage will always command the attention of posterity; but the
events by which the fate of nations is not materially changed,
leave a faint impression on the page of history, and the patience
of the reader would be exhausted by the repetition of the same
hostilities, undertaken without cause, prosecuted without glory,
and terminated without effect. The arts of negotiation, unknown
to the simple greatness of the senate and the Caesars, were
assiduously cultivated by the Byzantine princes; and the
memorials of their perpetual embassies ^2 repeat, with the same
uniform prolixity, the language of falsehood and declamation, the
insolence of the Barbarians, and the servile temper of the
tributary Greeks. Lamenting the barren superfluity of materials,
I have studied to compress the narrative of these uninteresting
transactions: but the just Nushirvan is still applauded as the
model of Oriental kings, and the ambition of his grandson
Chosroes prepared the revolution of the East, which was speedily
accomplished by the arms and the religion of the successors of
Mahomet.

[Footnote 1: Missis qui ... reposcerent ... veteres Persarum ac
Macedonum terminos, seque invasurum possessa Cyro et post
Alexandro, per vaniloquentiam ac minas jaciebat. Tacit. Annal.
vi. 31. Such was the language of the Arsacides. I have
repeatedly marked the lofty claims of the Sassanians.]
[Footnote 2: See the embassies of Menander, extracted and
preserved in the tenth century by the order of Constantine
Porphyrogenitus.]
     In the useless altercations, that precede and justify the
quarrels of princes, the Greeks and the Barbarians accused each
other of violating the peace which had been concluded between the
two empires about four years before the death of Justinian. The
sovereign of Persia and India aspired to reduce under his
obedience the province of Yemen or Arabia ^3 Felix; the distant
land of myrrh and frankincense, which had escaped, rather than
opposed, the conquerors of the East. After the defeat of Abrahah
under the walls of Mecca, the discord of his sons and brothers
gave an easy entrance to the Persians: they chased the strangers
of Abyssinia beyond the Red Sea; and a native prince of the
ancient Homerites was restored to the throne as the vassal or
viceroy of the great Nushirvan. ^4 But the nephew of Justinian
declared his resolution to avenge the injuries of his Christian
ally the prince of Abyssinia, as they suggested a decent pretence
to discontinue the annual tribute, which was poorly disguised by
the name of pension. The churches of Persarmenia were oppressed
by the intolerant spirit of the Magi; ^* they secretly invoked
the protector of the Christians, and, after the pious murder of
their satraps, the rebels were avowed and supported as the
brethren and subjects of the Roman emperor. The complaints of
Nushirvan were disregarded by the Byzantine court; Justin yielded
to the importunities of the Turks, who offered an alliance
against the common enemy; and the Persian monarchy was threatened
at the same instant by the united forces of Europe, of Aethiopia,
and of Scythia. At the age of fourscore the sovereign of the
East would perhaps have chosen the peaceful enjoyment of his
glory and greatness; but as soon as war became inevitable, he
took the field with the alacrity of youth, whilst the aggressor
trembled in the palace of Constantinople. Nushirvan, or
Chosroes, conducted in person the siege of Dara; and although
that important fortress had been left destitute of troops and
magazines, the valor of the inhabitants resisted above five
months the archers, the elephants, and the military engines of
the Great King. In the mean while his general Adarman advanced
from Babylon, traversed the desert, passed the Euphrates,
insulted the suburbs of Antioch, reduced to ashes the city of
Apamea, and laid the spoils of Syria at the feet of his master,
whose perseverance in the midst of winter at length subverted the
bulwark of the East. But these losses, which astonished the
provinces and the court, produced a salutary effect in the
repentance and abdication of the emperor Justin: a new spirit
arose in the Byzantine councils; and a truce of three years was
obtained by the prudence of Tiberius. That seasonable interval
was employed in the preparations of war; and the voice of rumor
proclaimed to the world, that from the distant countries of the
Alps and the Rhine, from Scythia, Maesia, Pannonia, Illyricum,
and Isauria, the strength of the Imperial cavalry was reenforced
with one hundred and fifty thousand soldiers. Yet the king of
Persia, without fear, or without faith, resolved to prevent the
attack of the enemy; again passed the Euphrates, and dismissing
the ambassadors of Tiberius, arrogantly commanded them to await
his arrival at Caesarea, the metropolis of the Cappadocian
provinces. The two armies encountered each other in the battle
of Melitene: ^* the Barbarians, who darkened the air with a cloud
of arrows, prolonged their line, and extended their wings across
the plain; while the Romans, in deep and solid bodies, expected
to prevail in closer action, by the weight of their swords and
lances. A Scythian chief, who commanded their right wing,
suddenly turned the flank of the enemy, attacked their rear-guard
in the presence of Chosroes, penetrated to the midst of the camp,
pillaged the royal tent, profaned the eternal fire, loaded a
train of camels with the spoils of Asia, cut his way through the
Persian host, and returned with songs of victory to his friends,
who had consumed the day in single combats, or ineffectual
skirmishes. The darkness of the night, and the separation of the
Romans, afforded the Persian monarch an opportunity of revenge;
and one of their camps was swept away by a rapid and impetuous
assault. But the review of his loss, and the consciousness of
his danger, determined Chosroes to a speedy retreat: he burnt, in
his passage, the vacant town of Melitene; and, without consulting
the safety of his troops, boldly swam the Euphrates on the back
of an elephant. After this unsuccessful campaign, the want of
magazines, and perhaps some inroad of the Turks, obliged him to
disband or divide his forces; the Romans were left masters of the
field, and their general Justinian, advancing to the relief of
the Persarmenian rebels, erected his standard on the banks of the
Araxes. The great Pompey had formerly halted within three days'
march of the Caspian: ^5 that inland sea was explored, for the
first time, by a hostile fleet, ^6 and seventy thousand captives
were transplanted from Hyrcania to the Isle of Cyprus. On the
return of spring, Justinian descended into the fertile plains of
Assyria; the flames of war approached the residence of Nushirvan;
the indignant monarch sunk into the grave; and his last edict
restrained his successors from exposing their person in battle
against the Romans. ^* Yet the memory of this transient affront
was lost in the glories of a long reign; and his formidable
enemies, after indulging their dream of conquest, again solicited
a short respite from the calamities of war. ^7

[Footnote 3: The general independence of the Arabs, which cannot
be admitted without many limitations, is blindly asserted in a
separate dissertation of the authors of the Universal History,
vol. xx. p. 196 - 250. A perpetual miracle is supposed to have
guarded the prophecy in favor of the posterity of Ishmael; and
these learned bigots are not afraid to risk the truth of
Christianity on this frail and slippery foundation.

     Note: It certainly appears difficult to extract a prediction
of the perpetual independence of the Arabs from the text in
Genesis, which would have received an ample fulfilment during
centuries of uninvaded freedom. But the disputants appear to
forget the inseparable connection in the prediction between the
wild, the Bedoween habits of the Ismaelites, with their national
independence. The stationary and civilized descendant of Ismael
forfeited, as it were, his birthright, and ceased to be a genuine
son of the "wild man" The phrase, "dwelling in the presence of
his brethren," is interpreted by Rosenmuller (in loc.) and
others, according to the Hebrew geography, "to the East" of his
brethren, the legitimate race of Abraham - M.]
[Footnote 4: D'Herbelot, Biblioth. Orient. p. 477. Pocock,
Specimen Hist. Arabum, p. 64, 65. Father Pagi (Critica, tom. ii.
p. 646) has proved that, after ten years' peace, the Persian war,
which continued twenty years, was renewed A.D. 571. Mahomet was
born A.D. 569, in the year of the elephant, or the defeat of
Abrahah, (Gagnier, Vie de Mahomet, tom. i. p. 89, 90, 98;) and
this account allows two years for the conquest of Yemen.

     Note: Abrahah, according to some accounts, was succeeded by
his son Taksoum, who reigned seventeen years; his brother
Mascouh, who was slain in battle against the Persians, twelve.
But this chronology is irreconcilable with the Arabian conquests
of Nushirvan the Great. Either Seif, or his son Maadi Karb, was
the native prince placed on the throne by the Persians. St.
Martin, vol. x. p. 78. See likewise Johannsen, Hist. Yemanae. -
M.]
[Footnote *: Persarmenia was long maintained in peace by the
tolerant administration of Mejej, prince of the Gnounians. On
his death he was succeeded by a persecutor, a Persian, named
Ten-Schahpour, who attempted to propagate Zoroastrianism by
violence. Nushirvan, on an appeal to the throne by the Armenian
clergy, replaced Ten-Schahpour, in 552, by Veschnas-Vahram. The
new marzban, or governor, was instructed to repress the bigoted
Magi in their persecutions of the Armenians, but the Persian
converts to Christianity were still exposed to cruel sufferings.
The most distinguished of them, Izdbouzid, was crucified at Dovin
in the presence of a vast multitude. The fame of this martyr
spread to the West. Menander, the historian, not only, as
appears by a fragment published by Mai, related this event in his
history, but, according to M. St. Martin, wrote a tragedy on the
subject. This, however, is an unwarrantable inference from the
phrase which merely means that he related the tragic event in his
history. An epigram on the same subject, preserved in the
Anthology, Jacob's Anth. Palat. i. 27, belongs to the historian.
Yet Armenia remained in peace under the government of
Veschnas-Vahram and his successor Varazdat. The tyranny of his
successor Surena led to the insurrection under Vartan, the
Mamigonian, who revenged the death of his brother on the marzban
Surena, surprised Dovin, and put to the sword the governor, the
soldiers, and the Magians. From St. Martin, vol x. p. 79 - 89. -
M.]

[Footnote *: Malathiah. It was in the lesser Armenia. - M.]
[Footnote 5: He had vanquished the Albanians, who brought into
the field 12,000 horse and 60,000 foot; but he dreaded the
multitude of venomous reptiles, whose existence may admit of some
doubt, as well as that of the neighboring Amazons. Plutarch, in
Pompeio, tom. ii. p. 1165, 1166.]
[Footnote 6: In the history of the world I can only perceive two
navies on the Caspian: 1. Of the Macedonians, when Patrocles, the
admiral of the kings of Syria, Seleucus and Antiochus, descended
most probably the River Oxus, from the confines of India, (Plin.
Hist. Natur. vi. 21.) 2. Of the Russians, when Peter the First
conducted a fleet and army from the neighborhood of Moscow to the
coast of Persia, (Bell's Travels, vol. ii. p. 325 - 352.) He
justly observes, that such martial pomp had never been displayed
on the Volga.]
[Footnote *: This circumstance rests on the statements of
Evagrius and Theophylaci Simocatta. They are not of sufficient
authority to establish a fact so improbable. St. Martin, vol. x.
p. 140. - M.]

[Footnote 7: For these Persian wars and treaties, see Menander,
in Excerpt. Legat. p. 113 - 125. Theophanes Byzant. apud
Photium, cod. lxiv p. 77, 80, 81. Evagrius, l. v. c. 7 - 15.
Theophylact, l. iii. c. 9 - 16 Agathias, l. iv. p. 140.]

     The throne of Chosroes Nushirvan was filled by Hormouz, or
Hormisdas, the eldest or the most favored of his sons. With the
kingdoms of Persia and India, he inherited the reputation and
example of his father, the service, in every rank, of his wise
and valiant officers, and a general system of administration,
harmonized by time and political wisdom to promote the happiness
of the prince and people. But the royal youth enjoyed a still
more valuable blessing, the friendship of a sage who had presided
over his education, and who always preferred the honor to the
interest of his pupil, his interest to his inclination. In a
dispute with the Greek and Indian philosophers, Buzurg ^8 had
once maintained, that the most grievous misfortune of life is old
age without the remembrance of virtue; and our candor will
presume that the same principle compelled him, during three
years, to direct the councils of the Persian empire. His zeal
was rewarded by the gratitude and docility of Hormouz, who
acknowledged himself more indebted to his preceptor than to his
parent: but when age and labor had impaired the strength, and
perhaps the faculties, of this prudent counsellor, he retired
from court, and abandoned the youthful monarch to his own
passions and those of his favorites. By the fatal vicissitude of
human affairs, the same scenes were renewed at Ctesiphon, which
had been exhibited at Rome after the death of Marcus Antoninus.
The ministers of flattery and corruption, who had been banished
by his father, were recalled and cherished by the son; the
disgrace and exile of the friends of Nushirvan established their
tyranny; and virtue was driven by degrees from the mind of
Hormouz, from his palace, and from the government of the state.
The faithful agents, the eyes and ears of the king, informed him
of the progress of disorder, that the provincial governors flew
to their prey with the fierceness of lions and eagles, and that
their rapine and injustice would teach the most loyal of his
subjects to abhor the name and authority of their sovereign. The
sincerity of this advice was punished with death; the murmurs of
the cities were despised, their tumults were quelled by military
execution: the intermediate powers between the throne and the
people were abolished; and the childish vanity of Hormouz, who
affected the daily use of the tiara, was fond of declaring, that
he alone would be the judge as well as the master of his kingdom.

In every word, and in every action, the son of Nushirvan
degenerated from the virtues of his father. His avarice
defrauded the troops; his jealous caprice degraded the satraps;
the palace, the tribunals, the waters of the Tigris, were stained
with the blood of the innocent, and the tyrant exulted in the
sufferings and execution of thirteen thousand victims. As the
excuse of his cruelty, he sometimes condescended to observe, that
the fears of the Persians would be productive of hatred, and that
their hatred must terminate in rebellion but he forgot that his
own guilt and folly had inspired the sentiments which he
deplored, and prepared the event which he so justly apprehended.
Exasperated by long and hopeless oppression, the provinces of
Babylon, Susa, and Carmania, erected the standard of revolt; and
the princes of Arabia, India, and Scythia, refused the customary
tribute to the unworthy successor of Nushirvan. The arms of the
Romans, in slow sieges and frequent inroads, afflicted the
frontiers of Mesopotamia and Assyria: one of their generals
professed himself the disciple of Scipio; and the soldiers were
animated by a miraculous image of Christ, whose mild aspect
should never have been displayed in the front of battle. ^9 At
the same time, the eastern provinces of Persia were invaded by
the great khan, who passed the Oxus at the head of three or four
hundred thousand Turks. The imprudent Hormouz accepted their
perfidious and formidable aid; the cities of Khorassan or
Bactriana were commanded to open their gates the march of the
Barbarians towards the mountains of Hyrcania revealed the
correspondence of the Turkish and Roman arms; and their union
must have subverted the throne of the house of Sassan.

[Footnote 8: Buzurg Mihir may be considered, in his character and
station, as the Seneca of the East; but his virtues, and perhaps
his faults, are less known than those of the Roman, who appears
to have been much more loquacious. The Persian sage was the
person who imported from India the game of chess and the fables
of Pilpay. Such has been the fame of his wisdom and virtues,
that the Christians claim him as a believer in the gospel; and
the Mahometans revere Buzurg as a premature Mussulman.
D'Herbelot, Bibliotheque Orientale, p. 218.]

[Footnote 9: See the imitation of Scipio in Theophylact, l. i. c.
14; the image of Christ, l. ii. c. 3. Hereafter I shall speak
more amply of the Christian images - I had almost said idols.
This, if I am not mistaken, is the oldest of divine manufacture;
but in the next thousand years, many others issued from the same
workshop.]

     Persia had been lost by a king; it was saved by a hero.
After his revolt, Varanes or Bahram is stigmatized by the son of
Hormouz as an ungrateful slave; the proud and ambiguous reproach
of despotism, since he was truly descended from the ancient
princes of Rei, ^10 one of the seven families whose splendid, as
well as substantial, prerogatives exalted them above the heads of
the Persian nobility. ^11 At the siege of Dara, the valor of
Bahram was signalized under the eyes of Nushirvan, and both the
father and son successively promoted him to the command of
armies, the government of Media, and the superintendence of the
palace. The popular prediction which marked him as the deliverer
of Persia, might be inspired by his past victories and
extraordinary figure: the epithet Giubin ^* is expressive of the
quality of dry wood: he had the strength and stature of a giant;
and his savage countenance was fancifully compared to that of a
wild cat. While the nation trembled, while Hormouz disguised his
terror by the name of suspicion, and his servants concealed their
disloyalty under the mask of fear, Bahram alone displayed his
undaunted courage and apparent fidelity: and as soon as he found
that no more than twelve thousand soldiers would follow him
against the enemy; he prudently declared, that to this fatal
number Heaven had reserved the honors of the triumph. ^! The
steep and narrow descent of the Pule Rudbar, ^12 or Hyrcanian
rock, is the only pass through which an army can penetrate into
the territory of Rei and the plains of Media. From the
commanding heights, a band of resolute men might overwhelm with
stones and darts the myriads of the Turkish host: their emperor
and his son were transpierced with arrows; and the fugitives were
left, without counsel or provisions, to the revenge of an injured
people. The patriotism of the Persian general was stimulated by
his affection for the city of his forefathers: in the hour of
victory, every peasant became a soldier, and every soldier a
hero; and their ardor was kindled by the gorgeous spectacle of
beds, and thrones, and tables of massy gold, the spoils of Asia,
and the luxury of the hostile camp. A prince of a less malignant
temper could not easily have forgiven his benefactor; and the
secret hatred of Hormouz was envenomed by a malicious report,
that Bahram had privately retained the most precious fruits of
his Turkish victory. But the approach of a Roman army on the
side of the Araxes compelled the implacable tyrant to smile and
to applaud; and the toils of Bahram were rewarded with the
permission of encountering a new enemy, by their skill and
discipline more formidable than a Scythian multitude. Elated by
his recent success, he despatched a herald with a bold defiance
to the camp of the Romans, requesting them to fix a day of
battle, and to choose whether they would pass the river
themselves, or allow a free passage to the arms of the great
king. The lieutenant of the emperor Maurice preferred the safer
alternative; and this local circumstance, which would have
enhanced the victory of the Persians, rendered their defeat more
bloody and their escape more difficult. But the loss of his
subjects, and the danger of his kingdom, were overbalanced in the
mind of Hormouz by the disgrace of his personal enemy; and no
sooner had Bahram collected and reviewed his forces, than he
received from a royal messenger the insulting gift of a distaff,
a spinning-wheel, and a complete suit of female apparel. Obedient
to the will of his sovereign he showed himself to the soldiers in
this unworthy disguise they resented his ignominy and their own;
a shout of rebellion ran through the ranks; and the general
accepted their oath of fidelity and vows of revenge. A second
messenger, who had been commanded to bring the rebel in chains,
was trampled under the feet of an elephant, and manifestos were
diligently circulated, exhorting the Persians to assert their
freedom against an odious and contemptible tyrant. The defection
was rapid and universal; his loyal slaves were sacrificed to the
public fury; the troops deserted to the standard of Bahram; and
the provinces again saluted the deliverer of his country.

[Footnote 10: Ragae, or Rei, is mentioned in the Apocryphal book
of Tobit as already flourishing, 700 years before Christ, under
the Assyrian empire. Under the foreign names of Europus and
Arsacia, this city, 500 stadia to the south of the Caspian gates,
was successively embellished by the Macedonians and Parthians,
(Strabo, l. xi. p. 796.) Its grandeur and populousness in the
ixth century are exaggerated beyond the bounds of credibility;
but Rei has been since ruined by wars and the unwholesomeness of
the air. Chardin, Voyage en Perse, tom. i. p. 279, 280.
D'Herbelot, Biblioth. Oriental. p. 714.]
[Footnote 11: Theophylact. l. iii. c. 18. The story of the seven
Persians is told in the third book of Herodotus; and their noble
descendants are often mentioned, especially in the fragments of
Ctesias. Yet the independence of Otanes (Herodot. l. iii. c. 83,
84) is hostile to the spirit of despotism, and it may not seem
probable that the seven families could survive the revolutions of
eleven hundred years. They might, however, be represented by the
seven ministers, (Brisson, de Regno Persico, l. i. p. 190;) and
some Persian nobles, like the kings of Pontus (Polyb l. v. p.
540) and Cappadocia, (Diodor. Sicul. l. xxxi. tom. ii. p. 517,)
might claim their descent from the bold companions of Darius.]

[Footnote *: He is generally called Baharam Choubeen, Baharam,
the stick- like, probably from his appearance. Malcolm, vol. i.
p. 120. - M.]
[Footnote !: The Persian historians say, that Hormouz entreated
his general to increase his numbers; but Baharam replied, that
experience had taught him that it was the quality, not the number
of soldiers, which gave success. * * * No man in his army was
under forty years, and none above fifty. Malcolm, vol. i. p. 121
- M.]

[Footnote 12: See an accurate description of this mountain by
Olearius, (Voyage en Perse, p. 997, 998,) who ascended it with
much difficulty and danger in his return from Ispahan to the
Caspian Sea.]

     As the passes were faithfully guarded, Hormouz could only
compute the number of his enemies by the testimony of a guilty
conscience, and the daily defection of those who, in the hour of
his distress, avenged their wrongs, or forgot their obligations.
He proudly displayed the ensigns of royalty; but the city and
palace of Modain had already escaped from the hand of the tyrant.
Among the victims of his cruelty, Bindoes, a Sassanian prince,
had been cast into a dungeon; his fetters were broken by the zeal
and courage of a brother; and he stood before the king at the
head of those trusty guards, who had been chosen as the ministers
of his confinement, and perhaps of his death. Alarmed by the
hasty intrusion and bold reproaches of the captive, Hormouz
looked round, but in vain, for advice or assistance; discovered
that his strength consisted in the obedience of others; and
patiently yielded to the single arm of Bindoes, who dragged him
from the throne to the same dungeon in which he himself had been
so lately confined. At the first tumult, Chosroes, the eldest of
the sons of Hormouz, escaped from the city; he was persuaded to
return by the pressing and friendly invitation of Bindoes, who
promised to seat him on his father's throne, and who expected to
reign under the name of an inexperienced youth. In the just
assurance, that his accomplices could neither forgive nor hope to
be forgiven, and that every Persian might be trusted as the judge
and enemy of the tyrant, he instituted a public trial without a
precedent and without a copy in the annals of the East. The son
of Nushirvan, who had requested to plead in his own defence, was
introduced as a criminal into the full assembly of the nobles and
satraps. ^13 He was heard with decent attention as long as he
expatiated on the advantages of order and obedience, the danger
of innovation, and the inevitable discord of those who had
encouraged each other to trample on their lawful and hereditary
sovereign. By a pathetic appeal to their humanity, he extorted
that pity which is seldom refused to the fallen fortunes of a
king; and while they beheld the abject posture and squalid
appearance of the prisoner, his tears, his chains, and the marks
of ignominious stripes, it was impossible to forget how recently
they had adored the divine splendor of his diadem and purple.
But an angry murmur arose in the assembly as soon as he presumed
to vindicate his conduct, and to applaud the victories of his
reign. He defined the duties of a king, and the Persian nobles
listened with a smile of contempt; they were fired with
indignation when he dared to vilify the character of Chosroes;
and by the indiscreet offer of resigning the sceptre to the
second of his sons, he subscribed his own condemnation, and
sacrificed the life of his own innocent favorite. The mangled
bodies of the boy and his mother were exposed to the people; the
eyes of Hormouz were pierced with a hot needle; and the
punishment of the father was succeeded by the coronation of his
eldest son. Chosroes had ascended the throne without guilt, and
his piety strove to alleviate the misery of the abdicated
monarch; from the dungeon he removed Hormouz to an apartment of
the palace, supplied with liberality the consolations of sensual
enjoyment, and patiently endured the furious sallies of his
resentment and despair. He might despise the resentment of a
blind and unpopular tyrant, but the tiara was trembling on his
head, till he could subvert the power, or acquire the friendship,
of the great Bahram, who sternly denied the justice of a
revolution, in which himself and his soldiers, the true
representatives of Persia, had never been consulted. The offer
of a general amnesty, and of the second rank in his kingdom, was
answered by an epistle from Bahram, friend of the gods, conqueror
of men, and enemy of tyrants, the satrap of satraps, general of
the Persian armies, and a prince adorned with the title of eleven
virtues. ^14 He commands Chosroes, the son of Hormouz, to shun
the example and fate of his father, to confine the traitors who
had been released from their chains, to deposit in some holy
place the diadem which he had usurped, and to accept from his
gracious benefactor the pardon of his faults and the government
of a province. The rebel might not be proud, and the king most
assuredly was not humble; but the one was conscious of his
strength, the other was sensible of his weakness; and even the
modest language of his reply still left room for treaty and
reconciliation. Chosroes led into the field the slaves of the
palace and the populace of the capital: they beheld with terror
the banners of a veteran army; they were encompassed and
surprised by the evolutions of the general; and the satraps who
had deposed Hormouz, received the punishment of their revolt, or
expiated their first treason by a second and more criminal act of
disloyalty. The life and liberty of Chosroes were saved, but he
was reduced to the necessity of imploring aid or refuge in some
foreign land; and the implacable Bindoes, anxious to secure an
unquestionable title, hastily returned to the palace, and ended,
with a bowstring, the wretched existence of the son of Nushirvan.
^15

[Footnote 13: The Orientals suppose that Bahram convened this
assembly and proclaimed Chosroes; but Theophylact is, in this
instance, more distinct and credible.

     Note: Yet Theophylact seems to have seized the opportunity
to indulge his propensity for writing orations; and the orations
read rather like those of a Grecian sophist than of an Eastern
assembly. - M.]

[Footnote 14: See the words of Theophylact, l. iv. c. 7., &c. In
answer, Chosroes styles himself in genuine Oriental bombast.]

[Footnote 15: Theophylact (l. iv. c. 7) imputes the death of
Hormouz to his son, by whose command he was beaten to death with
clubs. I have followed the milder account of Khondemir and
Eutychius, and shall always be content with the slightest
evidence to extenuate the crime of parricide.
     Note: Malcolm concurs in ascribing his death to Bundawee,
(Bindoes,) vol. i. p. 123. The Eastern writers generally impute
the crime to the uncle St. Martin, vol. x. p. 300. - M.]

     While Chosroes despatched the preparations of his retreat,
he deliberated with his remaining friends, ^16 whether he should
lurk in the valleys of Mount Caucasus, or fly to the tents of the
Turks, or solicit the protection of the emperor. The long
emulation of the successors of Artaxerxes and Constantine
increased his reluctance to appear as a suppliant in a rival
court; but he weighed the forces of the Romans, and prudently
considered that the neighborhood of Syria would render his escape
more easy and their succors more effectual. Attended only by his
concubines, and a troop of thirty guards, he secretly departed
from the capital, followed the banks of the Euphrates, traversed
the desert, and halted at the distance of ten miles from
Circesium. About the third watch of the night, the Roman praefect
was informed of his approach, and he introduced the royal
stranger to the fortress at the dawn of day. From thence the
king of Persia was conducted to the more honorable residence of
Hierapolis; and Maurice dissembled his pride, and displayed his
benevolence, at the reception of the letters and ambassadors of
the grandson of Nushirvan. They humbly represented the
vicissitudes of fortune and the common interest of princes,
exaggerated the ingratitude of Bahram, the agent of the evil
principle, and urged, with specious argument, that it was for the
advantage of the Romans themselves to support the two monarchies
which balance the world, the two great luminaries by whose
salutary influence it is vivified and adorned. The anxiety of
Chosroes was soon relieved by the assurance, that the emperor had
espoused the cause of justice and royalty; but Maurice prudently
declined the expense and delay of his useless visit to
Constantinople. In the name of his generous benefactor, a rich
diadem was presented to the fugitive prince, with an inestimable
gift of jewels and gold; a powerful army was assembled on the
frontiers of Syria and Armenia, under the command of the valiant
and faithful Narses, ^17 and this general, of his own nation, and
his own choice, was directed to pass the Tigris, and never to
sheathe his sword till he had restored Chosroes to the throne of
his ancestors. ^* The enterprise, however splendid, was less
arduous than it might appear. Persia had already repented of her
fatal rashness, which betrayed the heir of the house of Sassan to
the ambition of a rebellious subject: and the bold refusal of the
Magi to consecrate his usurpation, compelled Bahram to assume the
sceptre, regardless of the laws and prejudices of the nation.
The palace was soon distracted with conspiracy, the city with
tumult, the provinces with insurrection; and the cruel execution
of the guilty and the suspected served to irritate rather than
subdue the public discontent. No sooner did the grandson of
Nushirvan display his own and the Roman banners beyond the
Tigris, than he was joined, each day, by the increasing
multitudes of the nobility and people; and as he advanced, he
received from every side the grateful offerings of the keys of
his cities and the heads of his enemies. As soon as Modain was
freed from the presence of the usurper, the loyal inhabitants
obeyed the first summons of Mebodes at the head of only two
thousand horse, and Chosroes accepted the sacred and precious
ornaments of the palace as the pledge of their truth and the
presage of his approaching success. After the junction of the
Imperial troops, which Bahram vainly struggled to prevent, the
contest was decided by two battles on the banks of the Zab, and
the confines of Media. The Romans, with the faithful subjects of
Persia, amounted to sixty thousand, while the whole force of the
usurper did not exceed forty thousand men: the two generals
signalized their valor and ability; but the victory was finally
determined by the prevalence of numbers and discipline. With the
remnant of a broken army, Bahram fled towards the eastern
provinces of the Oxus: the enmity of Persia reconciled him to the
Turks; but his days were shortened by poison, perhaps the most
incurable of poisons; the stings of remorse and despair, and the
bitter remembrance of lost glory. Yet the modern Persians still
commemorate the exploits of Bahram; and some excellent laws have
prolonged the duration of his troubled and transitory reign. ^*

[Footnote 16: After the battle of Pharsalia, the Pompey of Lucan
(l. viii. 256 - 455) holds a similar debate. He was himself
desirous of seeking the Parthians: but his companions abhorred
the unnatural alliance and the adverse prejudices might operate
as forcibly on Chosroes and his companions, who could describe,
with the same vehemence, the contrast of laws, religion, and
manners, between the East and West.]

[Footnote 17: In this age there were three warriors of the name
of Narses, who have been often confounded, (Pagi, Critica, tom.
ii. p. 640:) 1. A Persarmenian, the brother of Isaac and
Armatius, who, after a successful action against Belisarius,
deserted from his Persian sovereign, and afterwards served in the
Italian war. - 2. The eunuch who conquered Italy. - 3. The
restorer of Chosroes, who is celebrated in the poem of Corippus
(l. iii. 220 - 327) as excelsus super omnia vertico agmina ....
habitu modestus .... morum probitate placens, virtute verendus;
fulmineus, cautus, vigilans, &c.]
[Footnote *: The Armenians adhered to Chosroes. St. Martin, vol.
x. p. 312. - M.]

[Footnote *: According to Mivkhond and the Oriental writers,
Bahram received the daughter of the Khakan in marriage, and
commanded a body of Turks in an invasion of Persia. Some say
that he was assassinated; Malcolm adopts the opinion that he was
poisoned. His sister Gourdieh, the companion of his flight, is
celebrated in the Shah Nameh. She was afterwards one of the
wives of Chosroes. St. Martin. vol. x. p. 331. - M.]

     The restoration of Chosroes was celebrated with feasts and
executions; and the music of the royal banquet was often
disturbed by the groans of dying or mutilated criminals. A
general pardon might have diffused comfort and tranquillity
through a country which had been shaken by the late revolutions;
yet, before the sanguinary temper of Chosroes is blamed, we
should learn whether the Persians had not been accustomed either
to dread the rigor, or to despise the weakness, of their
sovereign. The revolt of Bahram, and the conspiracy of the
satraps, were impartially punished by the revenge or justice of
the conqueror; the merits of Bindoes himself could not purify his
hand from the guilt of royal blood: and the son of Hormouz was
desirous to assert his own innocence, and to vindicate the
sanctity of kings. During the vigor of the Roman power, several
princes were seated on the throne of Persia by the arms and the
authority of the first Caesars. But their new subjects were soon
disgusted with the vices or virtues which they had imbibed in a
foreign land; the instability of their dominion gave birth to a
vulgar observation, that the choice of Rome was solicited and
rejected with equal ardor by the capricious levity of Oriental
slaves. But the glory of Maurice was conspicuous in the long and
fortunate reign of his son and his ally. A band of a thousand
Romans, who continued to guard the person of Chosroes, proclaimed
his confidence in the fidelity of the strangers; his growing
strength enabled him to dismiss this unpopular aid, but he
steadily professed the same gratitude and reverence to his
adopted father; and till the death of Maurice, the peace and
alliance of the two empires were faithfully maintained. Yet the
mercenary friendship of the Roman prince had been purchased with
costly and important gifts; the strong cities of Martyropolis and
Dara ^* were restored, and the Persarmenians became the willing
subjects of an empire, whose eastern limit was extended, beyond
the example of former times, as far as the banks of the Araxes,
and the neighborhood of the Caspian. A pious hope was indulged,
that the church as well as the state might triumph in this
revolution: but if Chosroes had sincerely listened to the
Christian bishops, the impression was erased by the zeal and
eloquence of the Magi: if he was armed with philosophic
indifference, he accommodated his belief, or rather his
professions, to the various circumstances of an exile and a
sovereign. The imaginary conversion of the king of Persia was
reduced to a local and superstitious veneration for Sergius, ^19
one of the saints of Antioch, who heard his prayers and appeared
to him in dreams; he enriched the shrine with offerings of gold
and silver, and ascribed to this invisible patron the success of
his arms, and the pregnancy of Sira, a devout Christian and the
best beloved of his wives. ^20 The beauty of Sira, or Schirin,
^21 her wit, her musical talents, are still famous in the
history, or rather in the romances, of the East: her own name is
expressive, in the Persian tongue, of sweetness and grace; and
the epithet of Parviz alludes to the charms of her royal lover.
Yet Sira never shared the passions which she inspired, and the
bliss of Chosroes was tortured by a jealous doubt, that while he
possessed her person, she had bestowed her affections on a meaner
favorite. ^22

[Footnote 18: Experimentis cognitum est Barbaros malle Roma
petere reges quam habere. These experiments are admirably
represented in the invitation and expulsion of Vonones, (Annal.
ii. 1 - 3,) Tiridates, (Annal. vi. 32-44,) and Meherdates,
(Annal. xi. 10, xii. 10-14.) The eye of Tacitus seems to have
transpierced the camp of the Parthians and the walls of the
harem.]
[Footnote *: Concerning Nisibis, see St. Martin and his Armenian
authorities, vol. x p. 332, and Memoires sur l'Armenie, tom. i.
p. 25. - M.]
[Footnote 19: Sergius and his companion Bacchus, who are said to
have suffered in the persecution of Maximian, obtained divine
honor in France, Italy, Constantinople, and the East. Their tomb
at Rasaphe was famous for miracles, and that Syrian town acquired
the more honorable name of Sergiopolis. Tillemont, Mem. Eccles.
tom. v. p. 481 - 496. Butler's Saints, vol. x. p. 155.]

[Footnote 20: Evagrius (l. vi. c. 21) and Theophylact (l. v. c.
13, 14) have preserved the original letters of Chosroes, written
in Greek, signed with his own hand, and afterwards inscribed on
crosses and tables of gold, which were deposited in the church of
Sergiopolis. They had been sent to the bishop of Antioch, as
primate of Syria.

     Note: St. Martin thinks that they were first written in
Syriac, and then translated into the bad Greek in which they
appear, vol. x. p. 334. - M.]
[Footnote 21: The Greeks only describe her as a Roman by birth, a
Christian by religion: but she is represented as the daughter of
the emperor Maurice in the Persian and Turkish romances which
celebrate the love of Khosrou for Schirin, of Schirin for Ferhad,
the most beautiful youth of the East, D'Herbelot, Biblioth.
Orient. p. 789, 997, 998.

     Note: Compare M. von Hammer's preface to, and poem of,
Schirin in which he gives an account of the various Persian
poems, of which he has endeavored to extract the essence in his
own work. - M.]

[Footnote 22: The whole series of the tyranny of Hormouz, the
revolt of Bahram, and the flight and restoration of Chosroes, is
related by two contemporary Greeks - more concisely by Evagrius,
(l. vi. c. 16, 17, 18, 19,) and most diffusely by Theophylact
Simocatta, (l. iii. c. 6 - 18, l. iv. c. 1 - 16, l. v. c. 1 -
15:) succeeding compilers, Zonaras and Cedrenus, can only
transcribe and abridge. The Christian Arabs, Eutychius (Annal.
tom. ii. p. 200 - 208) and Abulpharagius (Dynast. p. 96 - 98)
appear to have consulted some particular memoirs. The great
Persian historians of the xvth century, Mirkhond and Khondemir,
are only known to me by the imperfect extracts of Schikard,
(Tarikh, p. 150 - 155,) Texeira, or rather Stevens, (Hist. of
Persia, p. 182 - 186,) a Turkish Ms. translated by the Abbe
Fourmount, (Hist. de l'Academie des Inscriptions, tom. vii. p.
325 - 334,) and D'Herbelot, (aux mots Hormouz, p. 457 - 459.
Bahram, p. 174. Khosrou Parviz, p. 996.) Were I perfectly
satisfied of their authority, I could wish these Oriental
materials had been more copious.]

Chapter XLVI: Troubles In Persia.

Part II.

     While the majesty of the Roman name was revived in the East,
the prospect of Europe is less pleasing and less glorious. By
the departure of the Lombards, and the ruin of the Gepidae, the
balance of power was destroyed on the Danube; and the Avars
spread their permanent dominion from the foot of the Alps to the
sea-coast of the Euxine. The reign of Baian is the brightest
aera of their monarchy; their chagan, who occupied the rustic
palace of Attila, appears to have imitated his character and
policy; ^23 but as the same scenes were repeated in a smaller
circle, a minute representation of the copy would be devoid of
the greatness and novelty of the original. The pride of the
second Justin, of Tiberius, and Maurice, was humbled by a proud
Barbarian, more prompt to inflict, than exposed to suffer, the
injuries of war; and as often as Asia was threatened by the
Persian arms, Europe was oppressed by the dangerous inroads, or
costly friendship, of the Avars. When the Roman envoys
approached the presence of the chagan, they were commanded to
wait at the door of his tent, till, at the end perhaps of ten or
twelve days, he condescended to admit them. If the substance or
the style of their message was offensive to his ear, he insulted,
with real or affected fury, their own dignity, and that of their
prince; their baggage was plundered, and their lives were only
saved by the promise of a richer present and a more respectful
address. But his sacred ambassadors enjoyed and abused an
unbounded license in the midst of Constantinople: they urged,
with importunate clamors, the increase of tribute, or the
restitution of captives and deserters: and the majesty of the
empire was almost equally degraded by a base compliance, or by
the false and fearful excuses with which they eluded such
insolent demands. The chagan had never seen an elephant; and his
curiosity was excited by the strange, and perhaps fabulous,
portrait of that wonderful animal. At his command, one of the
largest elephants of the Imperial stables was equipped with
stately caparisons, and conducted by a numerous train to the
royal village in the plains of Hungary. He surveyed the enormous
beast with surprise, with disgust, and possibly with terror; and
smiled at the vain industry of the Romans, who, in search of such
useless rarities, could explore the limits of the land and sea.
He wished, at the expense of the emperor, to repose in a golden
bed. The wealth of Constantinople, and the skilful diligence of
her artists, were instantly devoted to the gratification of his
caprice; but when the work was finished, he rejected with scorn a
present so unworthy the majesty of a great king. ^24 These were
the casual sallies of his pride; but the avarice of the chagan
was a more steady and tractable passion: a rich and regular
supply of silk apparel, furniture, and plate, introduced the
rudiments of art and luxury among the tents of the Scythians;
their appetite was stimulated by the pepper and cinnamon of
India; ^25 the annual subsidy or tribute was raised from
fourscore to one hundred and twenty thousand pieces of gold; and
after each hostile interruption, the payment of the arrears, with
exorbitant interest, was always made the first condition of the
new treaty. In the language of a Barbarian, without guile, the
prince of the Avars affected to complain of the insincerity of
the Greeks; ^26 yet he was not inferior to the most civilized
nations in the refinement of dissimulation and perfidy. As the
successor of the Lombards, the chagan asserted his claim to the
important city of Sirmium, the ancient bulwark of the Illyrian
provinces. ^27 The plains of the Lower Hungary were covered with
the Avar horse and a fleet of large boats was built in the
Hercynian wood, to descend the Danube, and to transport into the
Save the materials of a bridge. But as the strong garrison of
Singidunum, which commanded the conflux of the two rivers, might
have stopped their passage and baffled his designs, he dispelled
their apprehensions by a solemn oath that his views were not
hostile to the empire. He swore by his sword, the symbol of the
god of war, that he did not, as the enemy of Rome, construct a
bridge upon the Save. "If I violate my oath," pursued the
intrepid Baian, "may I myself, and the last of my nation, perish
by the sword! May the heavens, and fire, the deity of the
heavens, fall upon our heads! May the forests and mountains bury
us in their ruins! and the Save returning, against the laws of
nature, to his source, overwhelm us in his angry waters!" After
this barbarous imprecation, he calmly inquired, what oath was
most sacred and venerable among the Christians, what guilt or
perjury it was most dangerous to incur. The bishop of Singidunum
presented the gospel, which the chagan received with devout
reverence. "I swear," said he, "by the God who has spoken in
this holy book, that I have neither falsehood on my tongue, nor
treachery in my heart." As soon as he rose from his knees, he
accelerated the labor of the bridge, and despatched an envoy to
proclaim what he no longer wished to conceal. "Inform the
emperor," said the perfidious Baian, "that Sirmium is invested on
every side. Advise his prudence to withdraw the citizens and
their effects, and to resign a city which it is now impossible to
relieve or defend." Without the hope of relief, the defence of
Sirmium was prolonged above three years: the walls were still
untouched; but famine was enclosed within the walls, till a
merciful capitulation allowed the escape of the naked and hungry
inhabitants. Singidunum, at the distance of fifty miles,
experienced a more cruel fate: the buildings were razed, and the
vanquished people was condemned to servitude and exile. Yet the
ruins of Sirmium are no longer visible; the advantageous
situation of Singidunum soon attracted a new colony of
Sclavonians, and the conflux of the Save and Danube is still
guarded by the fortifications of Belgrade, or the White City, so
often and so obstinately disputed by the Christian and Turkish
arms. ^28 From Belgrade to the walls of Constantinople a line may
be measured of six hundred miles: that line was marked with
flames and with blood; the horses of the Avars were alternately
bathed in the Euxine and the Adriatic; and the Roman pontiff,
alarmed by the approach of a more savage enemy, ^29 was reduced
to cherish the Lombards, as the protectors of Italy. The despair
of a captive, whom his country refused to ransom, disclosed to
the Avars the invention and practice of military engines. ^30 But
in the first attempts they were rudely framed, and awkwardly
managed; and the resistance of Diocletianopolis and Beraea, of
Philippopolis and Adrianople, soon exhausted the skill and
patience of the besiegers. The warfare of Baian was that of a
Tartar; yet his mind was susceptible of a humane and generous
sentiment: he spared Anchialus, whose salutary waters had
restored the health of the best beloved of his wives; and the
Romans confessed, that their starving army was fed and dismissed
by the liberality of a foe. His empire extended over Hungary,
Poland, and Prussia, from the mouth of the Danube to that of the
Oder; ^31 and his new subjects were divided and transplanted by
the jealous policy of the conqueror. ^32 The eastern regions of
Germany, which had been left vacant by the emigration of the
Vandals, were replenished with Sclavonian colonists; the same
tribes are discovered in the neighborhood of the Adriatic and of
the Baltic, and with the name of Baian himself, the Illyrian
cities of Neyss and Lissa are again found in the heart of
Silesia. In the disposition both of his troops and provinces the
chagan exposed the vassals, whose lives he disregarded, ^33 to
the first assault; and the swords of the enemy were blunted
before they encountered the native valor of the Avars.

[Footnote 23: A general idea of the pride and power of the chagan
may be taken from Menander (Excerpt. Legat. p. 118, &c.) and
Theophylact, (l. i. c. 3, l. vii. c. 15,) whose eight books are
much more honorable to the Avar than to the Roman prince. The
predecessors of Baian had tasted the liberality of Rome, and he
survived the reign of Maurice, (Buat, Hist. des Peuples Barbares,
tom. xi. p. 545.) The chagan who invaded Italy, A.D. 611,
(Muratori, Annali, tom. v. p. 305,) was then invenili aetate
florentem, (Paul Warnefrid, de Gest. Langobard. l v c 38,) the
son, perhaps, or the grandson, of Baian.]
[Footnote 24: Theophylact, l. i. c. 5, 6.]

[Footnote 25: Even in the field, the chagan delighted in the use
of these aromatics. He solicited, as a gift, and received.
Theophylact, l. vii. c. 13. The Europeans of the ruder ages
consumed more spices in their meat and drink than is compatible
with the delicacy of a modern palate. Vie Privee des Francois,
tom. ii. p. 162, 163.]

[Footnote 26: Theophylact, l. vi. c. 6, l. vii. c. 15. The Greek
historian confesses the truth and justice of his reproach]

[Footnote 27: Menander (in Excerpt. Legat. p. 126 - 132, 174,
175) describes the perjury of Baian and the surrender of Sirmium.

We have lost his account of the siege, which is commended by
Theophylact, l. i. c. 3.
    Note: Compare throughout Schlozer Nordische Geschichte, p.
362 - 373 - M.]
[Footnote 28: See D'Anville, in the Memoires de l'Acad. des
Inscriptions, tom. xxviii. p. 412 - 443. The Sclavonic name of
Belgrade is mentioned in the xth century by Constantine
Porphyrogenitus: the Latin appellation of Alba Croeca is used by
the Franks in the beginning of the ixth, (p. 414.)]
[Footnote 29: Baron. Annal. Eccles. A. B. 600, No. 1. Paul
Warnefrid (l. iv. c. 38) relates their irruption into Friuli, and
(c. 39) the captivity of his ancestors, about A.D. 632. The
Sclavi traversed the Adriatic cum multitudine navium, and made a
descent in the territory of Sipontum, (c. 47.)]
[Footnote 30: Even the helepolis, or movable turret.
Theophylact, l. ii. 16, 17.]

[Footnote 31: The arms and alliances of the chagan reached to the
neighborhood of a western sea, fifteen months' journey from
Constantinople. The emperor Maurice conversed with some itinerant
harpers from that remote country, and only seems to have mistaken
a trade for a nation Theophylact, l. vi. c. 2.]
[Footnote 32: This is one of the most probable and luminous
conjectures of the learned count de Buat, (Hist. des Peuples
Barbares, tom. xi. p. 546 - 568.) The Tzechi and Serbi are found
together near Mount Caucasus, in Illyricum, and on the lower
Elbe. Even the wildest traditions of the Bohemians, &c., afford
some color to his hypothesis.]

[Footnote 33: See Fredegarius, in the Historians of France, tom.
ii. p. 432. Baian did not conceal his proud insensibility.]

     The Persian alliance restored the troops of the East to the
defence of Europe: and Maurice, who had supported ten years the
insolence of the chagan, declared his resolution to march in
person against the Barbarians. In the space of two centuries,
none of the successors of Theodosius had appeared in the field:
their lives were supinely spent in the palace of Constantinople;
and the Greeks could no longer understand, that the name of
emperor, in its primitive sense, denoted the chief of the armies
of the republic. The martial ardor of Maurice was opposed by the
grave flattery of the senate, the timid superstition of the
patriarch, and the tears of the empress Constantina; and they all
conjured him to devolve on some meaner general the fatigues and
perils of a Scythian campaign. Deaf to their advice and
entreaty, the emperor boldly advanced ^34 seven miles from the
capital; the sacred ensign of the cross was displayed in the
front; and Maurice reviewed, with conscious pride, the arms and
numbers of the veterans who had fought and conquered beyond the
Tigris. Anchialus was the last term of his progress by sea and
land; he solicited, without success, a miraculous answer to his
nocturnal prayers; his mind was confounded by the death of a
favorite horse, the encounter of a wild boar, a storm of wind and
rain, and the birth of a monstrous child; and he forgot that the
best of omens is to unsheathe our sword in the defence of our
country. ^35 Under the pretence of receiving the ambassadors of
Persia, the emperor returned to Constantinople, exchanged the
thoughts of war for those of devotion, and disappointed the
public hope by his absence and the choice of his lieutenants.
The blind partiality of fraternal love might excuse the promotion
of his brother Peter, who fled with equal disgrace from the
Barbarians, from his own soldiers and from the inhabitants of a
Roman city. That city, if we may credit the resemblance of name
and character, was the famous Azimuntium, ^36 which had alone
repelled the tempest of Attila. The example of her warlike youth
was propagated to succeeding generations; and they obtained, from
the first or the second Justin, an honorable privilege, that
their valor should be always reserved for the defence of their
native country. The brother of Maurice attempted to violate this
privilege, and to mingle a patriot band with the mercenaries of
his camp; they retired to the church, he was not awed by the
sanctity of the place; the people rose in their cause, the gates
were shut, the ramparts were manned; and the cowardice of Peter
was found equal to his arrogance and injustice. The military
fame of Commentiolus ^37 is the object of satire or comedy rather
than of serious history, since he was even deficient in the vile
and vulgar qualification of personal courage. His solemn
councils, strange evolutions, and secret orders, always supplied
an apology for flight or delay. If he marched against the enemy,
the pleasant valleys of Mount Haemus opposed an insuperable
barrier; but in his retreat, he explored, with fearless
curiosity, the most difficult and obsolete paths, which had
almost escaped the memory of the oldest native. The only blood
which he lost was drawn, in a real or affected malady, by the
lancet of a surgeon; and his health, which felt with exquisite
sensibility the approach of the Barbarians, was uniformly
restored by the repose and safety of the winter season. A prince
who could promote and support this unworthy favorite must derive
no glory from the accidental merit of his colleague Priscus. ^38
In five successive battles, which seem to have been conducted
with skill and resolution, seventeen thousand two hundred
Barbarians were made prisoners: near sixty thousand, with four
sons of the chagan, were slain: the Roman general surprised a
peaceful district of the Gepidae, who slept under the protection
of the Avars; and his last trophies were erected on the banks of
the Danube and the Teyss. Since the death of Trajan the arms of
the empire had not penetrated so deeply into the old Dacia: yet
the success of Priscus was transient and barren; and he was soon
recalled by the apprehension that Baian, with dauntless spirit
and recruited forces, was preparing to avenge his defeat under
the walls of Constantinople. ^39

[Footnote 34: See the march and return of Maurice, in
Theophylact, l. v. c. 16 l. vi. c. 1, 2, 3. If he were a writer
of taste or genius, we might suspect him of an elegant irony: but
Theophylact is surely harmless.]
[Footnote 35: Iliad, xii. 243. This noble verse, which unites the
spirit of a hero with the reason of a sage, may prove that Homer
was in every light superior to his age and country.]

[Footnote 36: Theophylact, l. vii. c. 3. On the evidence of this
fact, which had not occurred to my memory, the candid reader will
correct and excuse a note in Chapter XXXIV., note 86 of this
History, which hastens the decay of Asimus, or Azimuntium;
another century of patriotism and valor is cheaply purchased by
such a confession.]

[Footnote 37: See the shameful conduct of Commentiolus, in
Theophylact, l. ii. c. 10 - 15, l. vii. c. 13, 14, l. viii. c. 2,
4.]

[Footnote 38: See the exploits of Priscus, l. viii. c. 23.]
[Footnote 39: The general detail of the war against the Avars may
be traced in the first, second, sixth, seventh, and eighth books
of the history of the emperor Maurice, by Theophylact Simocatta.
As he wrote in the reign of Heraclius, he had no temptation to
flatter; but his want of judgment renders him diffuse in trifles,
and concise in the most interesting facts.]
     The theory of war was not more familiar to the camps of
Caesar and Trajan, than to those of Justinian and Maurice. ^40
The iron of Tuscany or Pontus still received the keenest temper
from the skill of the Byzantine workmen. The magazines were
plentifully stored with every species of offensive and defensive
arms. In the construction and use of ships, engines, and
fortifications, the Barbarians admired the superior ingenuity of
a people whom they had so often vanquished in the field. The
science of tactics, the order, evolutions, and stratagems of
antiquity, was transcribed and studied in the books of the Greeks
and Romans. But the solitude or degeneracy of the provinces
could no longer supply a race of men to handle those weapons, to
guard those walls, to navigate those ships, and to reduce the
theory of war into bold and successful practice. The genius of
Belisarius and Narses had been formed without a master, and
expired without a disciple Neither honor, nor patriotism, nor
generous superstition, could animate the lifeless bodies of
slaves and strangers, who had succeeded to the honors of the
legions: it was in the camp alone that the emperor should have
exercised a despotic command; it was only in the camps that his
authority was disobeyed and insulted: he appeased and inflamed
with gold the licentiousness of the troops; but their vices were
inherent, their victories were accidental, and their costly
maintenance exhausted the substance of a state which they were
unable to defend. After a long and pernicious indulgence, the
cure of this inveterate evil was undertaken by Maurice; but the
rash attempt, which drew destruction on his own head, tended only
to aggravate the disease. A reformer should be exempt from the
suspicion of interest, and he must possess the confidence and
esteem of those whom he proposes to reclaim. The troops of
Maurice might listen to the voice of a victorious leader; they
disdained the admonitions of statesmen and sophists; and, when
they received an edict which deducted from their pay the price of
their arms and clothing, they execrated the avarice of a prince
insensible of the dangers and fatigues from which he had escaped.

The camps both of Asia and Europe were agitated with frequent and
furious seditions; ^41 the enraged soldiers of Edessa pursued
with reproaches, with threats, with wounds, their trembling
generals; they overturned the statues of the emperor, cast stones
against the miraculous image of Christ, and either rejected the
yoke of all civil and military laws, or instituted a dangerous
model of voluntary subordination. The monarch, always distant
and often deceived, was incapable of yielding or persisting,
according to the exigence of the moment. But the fear of a
general revolt induced him too readily to accept any act of
valor, or any expression of loyalty, as an atonement for the
popular offence; the new reform was abolished as hastily as it
had been announced, and the troops, instead of punishment and
restraint, were agreeably surprised by a gracious proclamation of
immunities and rewards. But the soldiers accepted without
gratitude the tardy and reluctant gifts of the emperor: their
insolence was elated by the discovery of his weakness and their
own strength; and their mutual hatred was inflamed beyond the
desire of forgiveness or the hope of reconciliation. The
historians of the times adopt the vulgar suspicion, that Maurice
conspired to destroy the troops whom he had labored to reform;
the misconduct and favor of Commentiolus are imputed to this
malevolent design; and every age must condemn the inhumanity of
avarice ^42 of a prince, who, by the trifling ransom of six
thousand pieces of gold, might have prevented the massacre of
twelve thousand prisoners in the hands of the chagan. In the
just fervor of indignation, an order was signified to the army of
the Danube, that they should spare the magazines of the province,
and establish their winter quarters in the hostile country of the
Avars. The measure of their grievances was full: they pronounced
Maurice unworthy to reign, expelled or slaughtered his faithful
adherents, and, under the command of Phocas, a simple centurion,
returned by hasty marches to the neighborhood of Constantinople.
After a long series of legal succession, the military disorders
of the third century were again revived; yet such was the novelty
of the enterprise, that the insurgents were awed by their own
rashness. They hesitated to invest their favorite with the
vacant purple; and, while they rejected all treaty with Maurice
himself, they held a friendly correspondence with his son
Theodosius, and with Germanus, the father-in-law of the royal
youth. So obscure had been the former condition of Phocas, that
the emperor was ignorant of the name and character of his rival;
but as soon as he learned, that the centurion, though bold in
sedition, was timid in the face of danger, "Alas!" cried the
desponding prince, "if he is a coward, he will surely be a
murderer."

[Footnote 40: Maurice himself composed xii books on the military
art, which are still extant, and have been published (Upsal,
1664) by John Schaeffer, at the end of the Tactics of Arrian,
(Fabricius, Bibliot Graeca, l. iv. c. 8, tom. iii. p. 278,) who
promises to speak more fully of his work in its proper place.]

[Footnote 41: See the mutinies under the reign of Maurice, in
Theophylact l iii c. 1 - 4, .vi. c. 7, 8, 10, l. vii. c. 1 l.
viii. c. 6, &c.]
[Footnote 42: Theophylact and Theophanes seem ignorant of the
conspiracy and avarice of Maurice. These charges, so unfavorable
to the memory of that emperor, are first mentioned by the author
of the Paschal Chronicle, (p. 379, 280;) from whence Zonaras
(tom. ii. l. xiv. p. 77, 78) has transcribed them. Cedrenus (p.
399) has followed another computation of the ransom.]
     Yet if Constantinople had been firm and faithful, the
murderer might have spent his fury against the walls; and the
rebel army would have been gradually consumed or reconciled by
the prudence of the emperor. In the games of the Circus, which
he repeated with unusual pomp, Maurice disguised, with smiles of
confidence, the anxiety of his heart, condescended to solicit the
applause of the factions, and flattered their pride by accepting
from their respective tribunes a list of nine hundred blues and
fifteen hundred greens, whom he affected to esteem as the solid
pillars of his throne Their treacherous or languid support
betrayed his weakness and hastened his fall: the green faction
were the secret accomplices of the rebels, and the blues
recommended lenity and moderation in a contest with their Roman
brethren The rigid and parsimonious virtues of Maurice had long
since alienated the hearts of his subjects: as he walked barefoot
in a religious procession, he was rudely assaulted with stones,
and his guards were compelled to present their iron maces in the
defence of his person. A fanatic monk ran through the streets
with a drawn sword, denouncing against him the wrath and the
sentence of God; and a vile plebeian, who represented his
countenance and apparel, was seated on an ass, and pursued by the
imprecations of the multitude. ^43 The emperor suspected the
popularity of Germanus with the soldiers and citizens: he feared,
he threatened, but he delayed to strike; the patrician fled to
the sanctuary of the church; the people rose in his defence, the
walls were deserted by the guards, and the lawless city was
abandoned to the flames and rapine of a nocturnal tumult. In a
small bark, the unfortunate Maurice, with his wife and nine
children, escaped to the Asiatic shore; but the violence of the
wind compelled him to land at the church of St. Autonomus, ^44
near Chalcedon, from whence he despatched Theodosius, he eldest
son, to implore the gratitude and friendship of the Persian
monarch. For himself, he refused to fly: his body was tortured
with sciatic pains, ^45 his mind was enfeebled by superstition;
he patiently awaited the event of the revolution, and addressed a
fervent and public prayer to the Almighty, that the punishment of
his sins might be inflicted in this world rather than in a future
life. After the abdication of Maurice, the two factions disputed
the choice of an emperor; but the favorite of the blues was
rejected by the jealousy of their antagonists, and Germanus
himself was hurried along by the crowds who rushed to the palace
of Hebdomon, seven miles from the city, to adore the majesty of
Phocas the centurion. A modest wish of resigning the purple to
the rank and merit of Germanus was opposed by his resolution,
more obstinate and equally sincere; the senate and clergy obeyed
his summons; and, as soon as the patriarch was assured of his
orthodox belief, he consecrated the successful usurper in the
church of St. John the Baptist. On the third day, amidst the
acclamations of a thoughtless people, Phocas made his public
entry in a chariot drawn by four white horses: the revolt of the
troops was rewarded by a lavish donative; and the new sovereign,
after visiting the palace, beheld from his throne the games of
the hippodrome. In a dispute of precedency between the two
factions, his partial judgment inclined in favor of the greens.
"Remember that Maurice is still alive," resounded from the
opposite side; and the indiscreet clamor of the blues admonished
and stimulated the cruelty of the tyrant. The ministers of death
were despatched to Chalcedon: they dragged the emperor from his
sanctuary; and the five sons of Maurice were successively
murdered before the eyes of their agonizing parent. At each
stroke, which he felt in his heart, he found strength to rehearse
a pious ejaculation: "Thou art just, O Lord! and thy judgments
are righteous." And such, in the last moments, was his rigid
attachment to truth and justice, that he revealed to the soldiers
the pious falsehood of a nurse who presented her own child in the
place of a royal infant. ^46 The tragic scene was finally closed
by the execution of the emperor himself, in the twentieth year of
his reign, and the sixty-third of his age. The bodies of the
father and his five sons were cast into the sea; their heads were
exposed at Constantinople to the insults or pity of the
multitude; and it was not till some signs of putrefaction had
appeared, that Phocas connived at the private burial of these
venerable remains. In that grave, the faults and errors of
Maurice were kindly interred. His fate alone was remembered; and
at the end of twenty years, in the recital of the history of
Theophylact, the mournful tale was interrupted by the tears of
the audience. ^47

[Footnote 43: In their clamors against Maurice, the people of
Constantinople branded him with the name of Marcionite or
Marcionist; a heresy (says Theophylact, l. viii. c. 9). Did they
only cast out a vague reproach - or had the emperor really
listened to some obscure teacher of those ancient Gnostics?]

[Footnote 44: The church of St. Autonomous (whom I have not the
honor to know) was 150 stadia from Constantinople, (Theophylact,
l. viii. c. 9.) The port of Eutropius, where Maurice and his
children were murdered, is described by Gyllius (de Bosphoro
Thracio, l. iii. c. xi.) as one of the two harbors of Chalcedon.]

[Footnote 45: The inhabitants of Constantinople were generally
subject; and Theophylact insinuates, (l. viii. c. 9,) that if it
were consistent with the rules of history, he could assign the
medical cause. Yet such a digression would not have been more
impertinent than his inquiry (l. vii. c. 16, 17) into the annual
inundations of the Nile, and all the opinions of the Greek
philosophers on that subject.]

[Footnote 46: From this generous attempt, Corneille has deduced
the intricate web of his tragedy of Heraclius, which requires
more than one representation to be clearly understood, (Corneille
de Voltaire, tom. v. p. 300;) and which, after an interval of
some years, is said to have puzzled the author himself,
(Anecdotes Dramatiques, tom. i. p. 422.)]

[Footnote 47: The revolt of Phocas and death of Maurice are told
by Theophylact Simocatta, (l. viii. c. 7 - 12,) the Paschal
Chronicle, (p. 379, 380,) Theophanes, (Chronograph. p. 238 -
244,) Zonaras, (tom. ii. l. xiv. p. 77 - 80,) and Cedrenus, (p.
399 - 404.)]

     Such tears must have flowed in secret, and such compassion
would have been criminal, under the reign of Phocas, who was
peaceably acknowledged in the provinces of the East and West.
The images of the emperor and his wife Leontia were exposed in
the Lateran to the veneration of the clergy and senate of Rome,
and afterwards deposited in the palace of the Caesars, between
those of Constantine and Theodosius. As a subject and a
Christian, it was the duty of Gregory to acquiesce in the
established government; but the joyful applause with which he
salutes the fortune of the assassin, has sullied, with indelible
disgrace, the character of the saint. The successor of the
apostles might have inculcated with decent firmness the guilt of
blood, and the necessity of repentance; he is content to
celebrate the deliverance of the people and the fall of the
oppressor; to rejoice that the piety and benignity of Phocas have
been raised by Providence to the Imperial throne; to pray that
his hands may be strengthened against all his enemies; and to
express a wish, perhaps a prophecy, that, after a long and
triumphant reign, he may be transferred from a temporal to an
everlasting kingdom. ^48 I have already traced the steps of a
revolution so pleasing, in Gregory's opinion, both to heaven and
earth; and Phocas does not appear less hateful in the exercise
than in the acquisition of power The pencil of an impartial
historian has delineated the portrait of a monster: ^49 his
diminutive and deformed person, the closeness of his shaggy
eyebrows, his red hair, his beardless chin, and his cheek
disfigured and discolored by a formidable scar. Ignorant of
letters, of laws, and even of arms, he indulged in the supreme
rank a more ample privilege of lust and drunkenness; and his
brutal pleasures were either injurious to his subjects or
disgraceful to himself. Without assuming the office of a prince,
he renounced the profession of a soldier; and the reign of Phocas
afflicted Europe with ignominious peace, and Asia with desolating
war. His savage temper was inflamed by passion, hardened by
fear, and exasperated by resistance of reproach. The flight of
Theodosius to the Persian court had been intercepted by a rapid
pursuit, or a deceitful message: he was beheaded at Nice, and the
last hours of the young prince were soothed by the comforts of
religion and the consciousness of innocence. Yet his phantom
disturbed the repose of the usurper: a whisper was circulated
through the East, that the son of Maurice was still alive: the
people expected their avenger, and the widow and daughters of the
late emperor would have adopted as their son and brother the
vilest of mankind. In the massacre of the Imperial family, ^50
the mercy, or rather the discretion, of Phocas had spared these
unhappy females, and they were decently confined to a private
house. But the spirit of the empress Constantina, still mindful
of her father, her husband, and her sons, aspired to freedom and
revenge. At the dead of night, she escaped to the sanctuary of
St. Sophia; but her tears, and the gold of her associate
Germanus, were insufficient to provoke an insurrection. Her life
was forfeited to revenge, and even to justice: but the patriarch
obtained and pledged an oath for her safety: a monastery was
allotted for her prison, and the widow of Maurice accepted and
abused the lenity of his assassin. The discovery or the
suspicion of a second conspiracy, dissolved the engagements, and
rekindled the fury, of Phocas. A matron who commanded the respect
and pity of mankind, the daughter, wife, and mother of emperors,
was tortured like the vilest malefactor, to force a confession of
her designs and associates; and the empress Constantina, with her
three innocent daughters, was beheaded at Chalcedon, on the same
ground which had been stained with the blood of her husband and
five sons. After such an example, it would be superfluous to
enumerate the names and sufferings of meaner victims. Their
condemnation was seldom preceded by the forms of trial, and their
punishment was embittered by the refinements of cruelty: their
eyes were pierced, their tongues were torn from the root, the
hands and feet were amputated; some expired under the lash,
others in the flames; others again were transfixed with arrows;
and a simple speedy death was mercy which they could rarely
obtain. The hippodrome, the sacred asylum of the pleasures and
the liberty of the Romans, was polluted with heads and limbs, and
mangled bodies; and the companions of Phocas were the most
sensible, that neither his favor, nor their services, could
protect them from a tyrant, the worthy rival of the Caligulas and
Domitians of the first age of the empire. ^51

[Footnote 48: Gregor. l. xi. epist. 38, indict. vi. Benignitatem
vestrae pietatis ad Imperiale fastigium pervenisse gaudemus.
Laetentur coeli et exultet terra, et de vestris benignis actibus
universae republicae populus nunc usque vehementer afflictus
hilarescat, &c. This base flattery, the topic of Protestant
invective, is justly censured by the philosopher Bayle,
(Dictionnaire Critique, Gregoire I. Not. H. tom. ii. p. 597 598.)
Cardinal Baronius justifies the pope at the expense of the fallen
emperor.]
[Footnote 49: The images of Phocas were destroyed; but even the
malice of his enemies would suffer one copy of such a portrait or
caricature (Cedrenus, p. 404) to escape the flames.]

[Footnote 50: The family of Maurice is represented by Ducange,
(Familiae By zantinae, p. 106, 107, 108;) his eldest son
Theodosius had been crowned emperor, when he was no more than
four years and a half old, and he is always joined with his
father in the salutations of Gregory. With the Christian
daughters, Anastasia and Theocteste, I am surprised to find the
Pagan name of Cleopatra.]

[Footnote 51: Some of the cruelties of Phocas are marked by
Theophylact, l. viii. c. 13, 14, 15. George of Pisidia, the poet
of Heraclius, styles him (Bell. Avaricum, p. 46, Rome, 1777).
The latter epithet is just - but the corrupter of life was easily
vanquished.]

Chapter XLVI: Troubles In Persia.

Part III.

     A daughter of Phocas, his only child, was given in marriage
to the patrician Crispus, ^52 and the royal images of the bride
and bridegroom were indiscreetly placed in the circus, by the
side of the emperor. The father must desire that his posterity
should inherit the fruit of his crimes, but the monarch was
offended by this premature and popular association: the tribunes
of the green faction, who accused the officious error of their
sculptors, were condemned to instant death: their lives were
granted to the prayers of the people; but Crispus might
reasonably doubt, whether a jealous usurper could forget and
pardon his involuntary competition. The green faction was
alienated by the ingratitude of Phocas and the loss of their
privileges; every province of the empire was ripe for rebellion;
and Heraclius, exarch of Africa, persisted above two years in
refusing all tribute and obedience to the centurion who disgraced
the throne of Constantinople. By the secret emissaries of
Crispus and the senate, the independent exarch was solicited to
save and to govern his country; but his ambition was chilled by
age, and he resigned the dangerous enterprise to his son
Heraclius, and to Nicetas, the son of Gregory, his friend and
lieutenant. The powers of Africa were armed by the two
adventurous youths; they agreed that the one should navigate the
fleet from Carthage to Constantinople, that the other should lead
an army through Egypt and Asia, and that the Imperial purple
should be the reward of diligence and success. A faint rumor of
their undertaking was conveyed to the ears of Phocas, and the
wife and mother of the younger Heraclius were secured as the
hostages of his faith: but the treacherous heart of Crispus
extenuated the distant peril, the means of defence were neglected
or delayed, and the tyrant supinely slept till the African navy
cast anchor in the Hellespont. Their standard was joined at
Abidus by the fugitives and exiles who thirsted for revenge; the
ships of Heraclius, whose lofty masts were adorned with the holy
symbols of religion, ^53 steered their triumphant course through
the Propontis; and Phocas beheld from the windows of the palace
his approaching and inevitable fate. The green faction was
tempted, by gifts and promises, to oppose a feeble and fruitless
resistance to the landing of the Africans: but the people, and
even the guards, were determined by the well-timed defection of
Crispus; and they tyrant was seized by a private enemy, who
boldly invaded the solitude of the palace. Stripped of the
diadem and purple, clothed in a vile habit, and loaded with
chains, he was transported in a small boat to the Imperial galley
of Heraclius, who reproached him with the crimes of his
abominable reign. "Wilt thou govern better?" were the last words
of the despair of Phocas. After suffering each variety of insult
and torture, his head was severed from his body, the mangled
trunk was cast into the flames, and the same treatment was
inflicted on the statues of the vain usurper, and the seditious
banner of the green faction. The voice of the clergy, the
senate, and the people, invited Heraclius to ascend the throne
which he had purified from guilt and ignominy; after some
graceful hesitation, he yielded to their entreaties. His
coronation was accompanied by that of his wife Eudoxia; and their
posterity, till the fourth generation, continued to reign over
the empire of the East. The voyage of Heraclius had been easy
and prosperous; the tedious march of Nicetas was not accomplished
before the decision of the contest: but he submitted without a
murmur to the fortune of his friend, and his laudable intentions
were rewarded with an equestrian statue, and a daughter of the
emperor. It was more difficult to trust the fidelity of Crispus,
whose recent services were recompensed by the command of the
Cappadocian army. His arrogance soon provoked, and seemed to
excuse, the ingratitude of his new sovereign. In the presence of
the senate, the son-in-law of Phocas was condemned to embrace the
monastic life; and the sentence was justified by the weighty
observation of Heraclius, that the man who had betrayed his
father could never be faithful to his friend. ^54
[Footnote 52: In the writers, and in the copies of those writers,
there is such hesitation between the names of Priscus and
Crispus, (Ducange, Fam Byzant. p. 111,) that I have been tempted
to identify the son-in-law of Phocas with the hero five times
victorious over the Avars.]

[Footnote 53: According to Theophanes. Cedrenus adds, which
Heraclius bore as a banner in the first Persian expedition. See
George Pisid. Acroas L 140. The manufacture seems to have
flourished; but Foggini, the Roman editor, (p. 26,) is at a loss
to determine whether this picture was an original or a copy.]
[Footnote 54: See the tyranny of Phocas and the elevation of
Heraclius, in Chron. Paschal. p. 380 - 383. Theophanes, p. 242 -
250. Nicephorus, p. 3 - 7. Cedrenus, p. 404 - 407. Zonaras,
tom. ii. l. xiv. p. 80 - 82.]
     Even after his death the republic was afflicted by the
crimes of Phocas, which armed with a pious cause the most
formidable of her enemies. According to the friendly and equal
forms of the Byzantine and Persian courts, he announced his
exaltation to the throne; and his ambassador Lilius, who had
presented him with the heads of Maurice and his sons, was the
best qualified to describe the circumstances of the tragic scene.
^55 However it might be varnished by fiction or sophistry,
Chosroes turned with horror from the assassin, imprisoned the
pretended envoy, disclaimed the usurper, and declared himself the
avenger of his father and benefactor. The sentiments of grief
and resentment, which humanity would feel, and honor would
dictate, promoted on this occasion the interest of the Persian
king; and his interest was powerfully magnified by the national
and religious prejudices of the Magi and satraps. In a strain of
artful adulation, which assumed the language of freedom, they
presumed to censure the excess of his gratitude and friendship
for the Greeks; a nation with whom it was dangerous to conclude
either peace or alliance; whose superstition was devoid of truth
and justice, and who must be incapable of any virtue, since they
could perpetrate the most atrocious of crimes, the impious murder
of their sovereign. ^56 For the crime of an ambitious centurion,
the nation which he oppressed was chastised with the calamities
of war; and the same calamities, at the end of twenty years, were
retaliated and redoubled on the heads of the Persians. ^57 The
general who had restored Chosroes to the throne still commanded
in the East; and the name of Narses was the formidable sound with
which the Assyrian mothers were accustomed to terrify their
infants. It is not improbable, that a native subject of Persia
should encourage his master and his friend to deliver and possess
the provinces of Asia. It is still more probable, that Chosroes
should animate his troops by the assurance that the sword which
they dreaded the most would remain in its scabbard, or be drawn
in their favor. The hero could not depend on the faith of a
tyrant; and the tyrant was conscious how little he deserved the
obedience of a hero. Narses was removed from his military
command; he reared an independent standard at Hierapolis, in
Syria: he was betrayed by fallacious promises, and burnt alive in
the market-place of Constantinople. Deprived of the only chief
whom they could fear or esteem, the bands which he had led to
victory were twice broken by the cavalry, trampled by the
elephants, and pierced by the arrows of the Barbarians; and a
great number of the captives were beheaded on the field of battle
by the sentence of the victor, who might justly condemn these
seditious mercenaries as the authors or accomplices of the death
of Maurice. Under the reign of Phocas, the fortifications of
Merdin, Dara, Amida, and Edessa, were successively besieged,
reduced, and destroyed, by the Persian monarch: he passed the
Euphrates, occupied the Syrian cities, Hierapolis, Chalcis, and
Berrhaea or Aleppo, and soon encompassed the walls of Antioch
with his irresistible arms. The rapid tide of success discloses
the decay of the empire, the incapacity of Phocas, and the
disaffection of his subjects; and Chosroes provided a decent
apology for their submission or revolt, by an impostor, who
attended his camp as the son of Maurice ^58 and the lawful heir
of the monarchy.

[Footnote 55: Theophylact, l. viii. c. 15. The life of Maurice
was composed about the year 628 (l. viii. c. 13) by Theophylact
Simocatta, ex-praefect, a native of Egypt. Photius, who gives an
ample extract of the work, (cod. lxv. p. 81 - 100,) gently
reproves the affectation and allegory of the style. His preface
is a dialogue between Philosophy and History; they seat
themselves under a plane-tree, and the latter touches her lyre.]

[Footnote 56: Christianis nec pactum esse, nec fidem nec foedus
.... . quod si ulla illis fides fuisset, regem suum non
occidissent. Eutych. Annales tom. ii. p. 211, vers. Pocock.]

[Footnote 57: We must now, for some ages, take our leave of
contemporary historians, and descend, if it be a descent, from
the affectation of rhetoric to the rude simplicity of chronicles
and abridgments. Those of Theophanes (Chronograph. p. 244 - 279)
and Nicephorus (p. 3 - 16) supply a regular, but imperfect,
series of the Persian war; and for any additional facts I quote
my special authorities. Theophanes, a courtier who became a
monk, was born A.D. 748; Nicephorus patriarch of Constantinople,
who died A.D. 829, was somewhat younger: they both suffered in
the cause of images Hankius, de Scriptoribus Byzantinis, p. 200 -
246.]

[Footnote 58: The Persian historians have been themselves
deceived: but Theophanes (p. 244) accuses Chosroes of the fraud
and falsehood; and Eutychius believes (Annal. tom. ii. p. 212)
that the son of Maurice, who was saved from the assassins, lived
and died a monk on Mount Sinai.]

     The first intelligence from the East which Heraclius
received, ^59 was that of the loss of Antioch; but the aged
metropolis, so often overturned by earthquakes, and pillaged by
the enemy, could supply but a small and languid stream of
treasure and blood. The Persians were equally successful, and
more fortunate, in the sack of Caesarea, the capital of
Cappadocia; and as they advanced beyond the ramparts of the
frontier, the boundary of ancient war, they found a less
obstinate resistance and a more plentiful harvest. The pleasant
vale of Damascus has been adorned in every age with a royal city:
her obscure felicity has hitherto escaped the historian of the
Roman empire: but Chosroes reposed his troops in the paradise of
Damascus before he ascended the hills of Libanus, or invaded the
cities of the Phoenician coast. The conquest of Jerusalem, ^60
which had been meditated by Nushirvan, was achieved by the zeal
and avarice of his grandson; the ruin of the proudest monument of
Christianity was vehemently urged by the intolerant spirit of the
Magi; and he could enlist for this holy warfare with an army of
six-and- twenty thousand Jews, whose furious bigotry might
compensate, in some degree, for the want of valor and discipline.
^* After the reduction of Galilee, and the region beyond the
Jordan, whose resistance appears to have delayed the fate of the
capital, Jerusalem itself was taken by assault. The sepulchre of
Christ, and the stately churches of Helena and Constantine, were
consumed, or at least damaged, by the flames; the devout
offerings of three hundred years were rifled in one sacrilegious
day; the Patriarch Zachariah, and the true cross, were
transported into Persia; and the massacre of ninety thousand
Christians is imputed to the Jews and Arabs, who swelled the
disorder of the Persian march. The fugitives of Palestine were
entertained at Alexandria by the charity of John the Archbishop,
who is distinguished among a crowd of saints by the epithet of
almsgiver: ^61 and the revenues of the church, with a treasure of
three hundred thousand pounds, were restored to the true
proprietors, the poor of every country and every denomination.
But Egypt itself, the only province which had been exempt, since
the time of Diocletian, from foreign and domestic war, was again
subdued by the successors of Cyrus. Pelusium, the key of that
impervious country, was surprised by the cavalry of the Persians:
they passed, with impunity, the innumerable channels of the
Delta, and explored the long valley of the Nile, from the
pyramids of Memphis to the confines of Aethiopia. Alexandria
might have been relieved by a naval force, but the archbishop and
the praefect embarked for Cyprus; and Chosroes entered the second
city of the empire, which still preserved a wealthy remnant of
industry and commerce. His western trophy was erected, not on
the walls of Carthage, ^62 but in the neighborhood of Tripoli;
the Greek colonies of Cyrene were finally extirpated; and the
conqueror, treading in the footsteps of Alexander, returned in
triumph through the sands of the Libyan desert. In the same
campaign, another army advanced from the Euphrates to the
Thracian Bosphorus; Chalcedon surrendered after a long siege, and
a Persian camp was maintained above ten years in the presence of
Constantinople. The sea-coast of Pontus, the city of Ancyra, and
the Isle of Rhodes, are enumerated among the last conquests of
the great king; and if Chosroes had possessed any maritime power,
his boundless ambition would have spread slavery and desolation
over the provinces of Europe.

[Footnote 59: Eutychius dates all the losses of the empire under
the reign of Phocas; an error which saves the honor of Heraclius,
whom he brings not from Carthage, but Salonica, with a fleet
laden with vegetables for the relief of Constantinople, (Annal.
tom. ii. p. 223, 224.) The other Christians of the East,
Barhebraeus, (apud Asseman, Bibliothec. Oriental. tom. iii. p.
412, 413,) Elmacin, (Hist. Saracen. p. 13 - 16,) Abulpharagius,
(Dynast. p. 98, 99,) are more sincere and accurate. The years of
the Persian war are disposed in the chronology of Pagi.]

[Footnote 60: On the conquest of Jerusalem, an event so
interesting to the church, see the Annals of Eutychius, (tom. ii.
p. 212 - 223,) and the lamentations of the monk Antiochus, (apud
Baronium, Annal. Eccles. A.D. 614, No. 16 - 26,) whose one
hundred and twenty-nine homilies are still extant, if what no one
reads may be said to be extant.]

[Footnote *: See Hist. of Jews, vol. iii. p. 240. - M.]

[Footnote 61: The life of this worthy saint is composed by
Leontius, a contemporary bishop; and I find in Baronius (Annal.
Eccles. A.D. 610, No. 10, &c.) and Fleury (tom. viii. p. 235 -
242) sufficient extracts of this edifying work.)]

[Footnote 62: The error of Baronius, and many others who have
carried the arms of Chosroes to Carthage instead of Chalcedon, is
founded on the near resemblance of the Greek words, in the text
of Theophanes, &c., which have been sometimes confounded by
transcribers, and sometimes by critics.]
     From the long-disputed banks of the Tigris and Euphrates,
the reign of the grandson of Nushirvan was suddenly extended to
the Hellespont and the Nile, the ancient limits of the Persian
monarchy. But the provinces, which had been fashioned by the
habits of six hundred years to the virtues and vices of the Roman
government, supported with reluctance the yoke of the Barbarians.
The idea of a republic was kept alive by the institutions, or at
least by the writings, of the Greeks and Romans, and the subjects
of Heraclius had been educated to pronounce the words of liberty
and law. But it has always been the pride and policy of Oriental
princes to display the titles and attributes of their
omnipotence; to upbraid a nation of slaves with their true name
and abject condition, and to enforce, by cruel and insolent
threats, the rigor of their absolute commands. The Christians of
the East were scandalized by the worship of fire, and the impious
doctrine of the two principles: the Magi were not less intolerant
than the bishops; and the martyrdom of some native Persians, who
had deserted the religion of Zoroaster, ^63 was conceived to be
the prelude of a fierce and general persecution. By the
oppressive laws of Justinian, the adversaries of the church were
made the enemies of the state; the alliance of the Jews,
Nestorians, and Jacobites, had contributed to the success of
Chosroes, and his partial favor to the sectaries provoked the
hatred and fears of the Catholic clergy. Conscious of their fear
and hatred, the Persian conqueror governed his new subjects with
an iron sceptre; and, as if he suspected the stability of his
dominion, he exhausted their wealth by exorbitant tributes and
licentious rapine despoiled or demolished the temples of the
East; and transported to his hereditary realms the gold, the
silver, the precious marbles, the arts, and the artists of the
Asiatic cities. In the obscure picture of the calamities of the
empire, ^64 it is not easy to discern the figure of Chosroes
himself, to separate his actions from those of his lieutenants,
or to ascertain his personal merit in the general blaze of glory
and magnificence. He enjoyed with ostentation the fruits of
victory, and frequently retired from the hardships of war to the
luxury of the palace. But in the space of twenty-four years, he
was deterred by superstition or resentment from approaching the
gates of Ctesiphon: and his favorite residence of Artemita, or
Dastagerd, was situate beyond the Tigris, about sixty miles to
the north of the capital. ^65 The adjacent pastures were covered
with flocks and herds: the paradise or park was replenished with
pheasants, peacocks, ostriches, roebucks, and wild boars, and the
noble game of lions and tigers was sometimes turned loose for the
bolder pleasures of the chase. Nine hundred and sixty elephants
were maintained for the use or splendor of the great king: his
tents and baggage were carried into the field by twelve thousand
great camels and eight thousand of a smaller size; ^66 and the
royal stables were filled with six thousand mules and horses,
among whom the names of Shebdiz and Barid are renowned for their
speed or beauty. ^* Six thousand guards successively mounted
before the palace gate; the service of the interior apartments
was performed by twelve thousand slaves, and in the number of
three thousand virgins, the fairest of Asia, some happy concubine
might console her master for the age or the indifference of Sira.

The various treasures of gold, silver, gems, silks, and
aromatics, were deposited in a hundred subterraneous vaults and
the chamber Badaverd denoted the accidental gift of the winds
which had wafted the spoils of Heraclius into one of the Syrian
harbors of his rival. The vice of flattery, and perhaps of
fiction, is not ashamed to compute the thirty thousand rich
hangings that adorned the walls; the forty thousand columns of
silver, or more probably of marble, and plated wood, that
supported the roof; and the thousand globes of gold suspended in
the dome, to imitate the motions of the planets and the
constellations of the zodiac. ^67 While the Persian monarch
contemplated the wonders of his art and power, he received an
epistle from an obscure citizen of Mecca, inviting him to
acknowledge Mahomet as the apostle of God. He rejected the
invitation, and tore the epistle. "It is thus," exclaimed the
Arabian prophet, "that God will tear the kingdom, and reject the
supplications of Chosroes." ^68 ^! Placed on the verge of the two
great empires of the East, Mahomet observed with secret joy the
progress of their mutual destruction; and in the midst of the
Persian triumphs, he ventured to foretell, that before many years
should elapse, victory should again return to the banners of the
Romans. ^69

[Footnote 63: The genuine acts of St. Anastasius are published in
those of the with general council, from whence Baronius (Annal.
Eccles. A.D. 614, 626, 627) and Butler (Lives of the Saints, vol.
i. p. 242 - 248) have taken their accounts. The holy martyr
deserted from the Persian to the Roman army, became a monk at
Jerusalem, and insulted the worship of the Magi, which was then
established at Caesarea in Palestine.]

[Footnote 64: Abulpharagius, Dynast. p. 99. Elmacin, Hist.
Saracen. p. 14.]
[Footnote 65: D'Anville, Mem. de l'Academie des Inscriptions,
tom. xxxii. p. 568 - 571.]

[Footnote 66: The difference between the two races consists in
one or two humps; the dromedary has only one; the size of the
proper camel is larger; the country he comes from, Turkistan or
Bactriana; the dromedary is confined to Arabia and Africa.
Buffon, Hist. Naturelle, tom. xi. p. 211, &c. Aristot. Hist.
Animal. tom. i. l. ii. c. 1, tom. ii. p. 185.]

[Footnote *: The ruins of these scenes of Khoosroo's magnificence
have been visited by Sir R. K. Porter. At the ruins of Tokht i
Bostan, he saw a gorgeous picture of a hunt, singularly
illustrative of this passage. Travels, vol. ii. p. 204. Kisra
Shirene, which he afterwards examined, appears to have been the
palace of Dastagerd. Vol. ii. p. 173 - 175. - M.]
[Footnote 67: Theophanes, Chronograph. p. 268. D'Herbelot,
Bibliotheque Orientale, p. 997. The Greeks describe the decay,
the Persians the splendor, of Dastagerd; but the former speak
from the modest witness of the eye, the latter from the vague
report of the ear.]

[Footnote 68: The historians of Mahomet, Abulfeda (in Vit.
Mohammed, p. 92, 93) and Gagnier, (Vie de Mahomet, tom. ii. p.
247,) date this embassy in the viith year of the Hegira, which
commences A.D. 628, May 11. Their chronology is erroneous, since
Chosroes died in the month of February of the same year, (Pagi,
Critica, tom. ii. p. 779.) The count de Boulainvilliers (Vie de
Mahomed, p. 327, 328) places this embassy about A.D. 615, soon
after the conquest of Palestine. Yet Mahomet would scarcely have
ventured so soon on so bold a step.]

[Footnote !: Khoosroo Purveez was encamped on the banks of the
Karasoo River when he received the letter of Mahomed. He tore
the letter and threw it into the Karasoo. For this action, the
moderate author of the Zeenut-ul- Tuarikh calls him a wretch, and
rejoices in all his subsequent misfortunes. These impressions
still exist. I remarked to a Persian, when encamped near the
Karasoo, in 1800, that the banks were very high, which must make
it difficult to apply its waters to irrigation. "It once
fertilized the whole country," said the zealous Mahomedan, "but
its channel sunk with honor from its banks, when that madman,
Khoosroo, threw our holy Prophet's letter into its stream; which
has ever since been accursed and useless. Malcolm's Persia, vol.
i. p. 126 - M.]

[Footnote 69: See the xxxth chapter of the Koran, entitled the
Greeks. Our honest and learned translator, Sale, (p. 330, 331,)
fairly states this conjecture, guess, wager, of Mahomet; but
Boulainvilliers, (p. 329 - 344,) with wicked intentions, labors
to establish this evident prophecy of a future event, which must,
in his opinion, embarrass the Christian polemics.]
     At the time when this prediction is said to have been
delivered, no prophecy could be more distant from its
accomplishment, since the first twelve years of Heraclius
announced the approaching dissolution of the empire. If the
motives of Chosroes had been pure and honorable, he must have
ended the quarrel with the death of Phocas, and he would have
embraced, as his best ally, the fortunate African who had so
generously avenged the injuries of his benefactor Maurice. The
prosecution of the war revealed the true character of the
Barbarian; and the suppliant embassies of Heraclius to beseech
his clemency, that he would spare the innocent, accept a tribute,
and give peace to the world, were rejected with contemptuous
silence or insolent menace. Syria, Egypt, and the provinces of
Asia, were subdued by the Persian arms, while Europe, from the
confines of Istria to the long wall of Thrace, was oppressed by
the Avars, unsatiated with the blood and rapine of the Italian
war. They had coolly massacred their male captives in the sacred
field of Pannonia; the women and children were reduced to
servitude, and the noblest virgins were abandoned to the
promiscuous lust of the Barbarians. The amorous matron who opened
the gates of Friuli passed a short night in the arms of her royal
lover; the next evening, Romilda was condemned to the embraces of
twelve Avars, and the third day the Lombard princess was impaled
in the sight of the camp, while the chagan observed with a cruel
smile, that such a husband was the fit recompense of her lewdness
and perfidy. ^70 By these implacable enemies, Heraclius, on
either side, was insulted and besieged: and the Roman empire was
reduced to the walls of Constantinople, with the remnant of
Greece, Italy, and Africa, and some maritime cities, from Tyre to
Trebizond, of the Asiatic coast. After the loss of Egypt, the
capital was afflicted by famine and pestilence; and the emperor,
incapable of resistance, and hopeless of relief, had resolved to
transfer his person and government to the more secure residence
of Carthage. His ships were already laden with the treasures of
the palace; but his flight was arrested by the patriarch, who
armed the powers of religion in the defence of his country; led
Heraclius to the altar of St. Sophia, and extorted a solemn oath,
that he would live and die with the people whom God had intrusted
to his care. The chagan was encamped in the plains of Thrace;
but he dissembled his perfidious designs, and solicited an
interview with the emperor near the town of Heraclea. Their
reconciliation was celebrated with equestrian games; the senate
and people, in their gayest apparel, resorted to the festival of
peace; and the Avars beheld, with envy and desire, the spectacle
of Roman luxury. On a sudden the hippodrome was encompassed by
the Scythian cavalry, who had pressed their secret and nocturnal
march: the tremendous sound of the chagan's whip gave the signal
of the assault, and Heraclius, wrapping his diadem round his arm,
was saved with extreme hazard, by the fleetness of his horse. So
rapid was the pursuit, that the Avars almost entered the golden
gate of Constantinople with the flying crowds: ^71 but the
plunder of the suburbs rewarded their treason, and they
transported beyond the Danube two hundred and seventy thousand
captives. On the shore of Chalcedon, the emperor held a safer
conference with a more honorable foe, who, before Heraclius
descended from his galley, saluted with reverence and pity the
majesty of the purple. The friendly offer of Sain, the Persian
general, to conduct an embassy to the presence of the great king,
was accepted with the warmest gratitude, and the prayer for
pardon and peace was humbly presented by the Praetorian praefect,
the praefect of the city, and one of the first ecclesiastics of
the patriarchal church. ^72 But the lieutenant of Chosroes had
fatally mistaken the intentions of his master. "It was not an
embassy," said the tyrant of Asia, "it was the person of
Heraclius, bound in chains, that he should have brought to the
foot of my throne. I will never give peace to the emperor of
Rome, till he had abjured his crucified God, and embraced the
worship of the sun." Sain was flayed alive, according to the
inhuman practice of his country; and the separate and rigorous
confinement of the ambassadors violated the law of nations, and
the faith of an express stipulation. Yet the experience of six
years at length persuaded the Persian monarch to renounce the
conquest of Constantinople, and to specify the annual tribute or
ransom of the Roman empire; a thousand talents of gold, a
thousand talents of silver, a thousand silk robes, a thousand
horses, and a thousand virgins. Heraclius subscribed these
ignominious terms; but the time and space which he obtained to
collect such treasures from the poverty of the East, was
industriously employed in the preparations of a bold and
desperate attack.
[Footnote 70: Paul Warnefrid, de Gestis Langobardorum, l. iv. c.
38, 42. Muratori, Annali d'Italia, tom. v. p. 305, &c.]

[Footnote 71: The Paschal Chronicle, which sometimes introduces
fragments of history into a barren list of names and dates, gives
the best account of the treason of the Avars, p. 389, 390. The
number of captives is added by Nicephorus.]

[Footnote 72: Some original pieces, such as the speech or letter
of the Roman ambassadors, (p. 386 - 388,) likewise constitute the
merit of the Paschal Chronicle, which was composed, perhaps at
Alexandria, under the reign of Heraclius.]

     Of the characters conspicuous in history, that of Heraclius
is one of the most extraordinary and inconsistent. In the first
and last years of a long reign, the emperor appears to be the
slave of sloth, of pleasure, or of superstition, the careless and
impotent spectator of the public calamities. But the languid
mists of the morning and evening are separated by the brightness
of the meridian sun; the Arcadius of the palace arose the Caesar
of the camp; and the honor of Rome and Heraclius was gloriously
retrieved by the exploits and trophies of six adventurous
campaigns. It was the duty of the Byzantine historians to have
revealed the causes of his slumber and vigilance. At this
distance we can only conjecture, that he was endowed with more
personal courage than political resolution; that he was detained
by the charms, and perhaps the arts, of his niece Martina, with
whom, after the death of Eudocia, he contracted an incestuous
marriage; ^73 and that he yielded to the base advice of the
counsellors, who urged, as a fundamental law, that the life of
the emperor should never be exposed in the field. ^74 Perhaps he
was awakened by the last insolent demand of the Persian
conqueror; but at the moment when Heraclius assumed the spirit of
a hero, the only hopes of the Romans were drawn from the
vicissitudes of fortune, which might threaten the proud
prosperity of Chosroes, and must be favorable to those who had
attained the lowest period of depression. ^75 To provide for the
expenses of war, was the first care of the emperor; and for the
purpose of collecting the tribute, he was allowed to solicit the
benevolence of the eastern provinces. But the revenue no longer
flowed in the usual channels; the credit of an arbitrary prince
is annihilated by his power; and the courage of Heraclius was
first displayed in daring to borrow the consecrated wealth of
churches, under the solemn vow of restoring, with usury, whatever
he had been compelled to employ in the service of religion and
the empire. The clergy themselves appear to have sympathized
with the public distress; and the discreet patriarch of
Alexandria, without admitting the precedent of sacrilege,
assisted his sovereign by the miraculous or seasonable revelation
of a secret treasure. ^76 Of the soldiers who had conspired with
Phocas, only two were found to have survived the stroke of time
and of the Barbarians; ^77 the loss, even of these seditious
veterans, was imperfectly supplied by the new levies of
Heraclius, and the gold of the sanctuary united, in the same
camp, the names, and arms, and languages of the East and West.
He would have been content with the neutrality of the Avars; and
his friendly entreaty, that the chagan would act, not as the
enemy, but as the guardian, of the empire, was accompanied with a
more persuasive donative of two hundred thousand pieces of gold.
Two days after the festival of Easter, the emperor, exchanging
his purple for the simple garb of a penitent and warrior, ^78
gave the signal of his departure. To the faith of the people
Heraclius recommended his children; the civil and military powers
were vested in the most deserving hands, and the discretion of
the patriarch and senate was authorized to save or surrender the
city, if they should be oppressed in his absence by the superior
forces of the enemy.
[Footnote 73: Nicephorus, (p. 10, 11,) is happy to observe, that
of two sons, its incestuous fruit, the elder was marked by
Providence with a stiff neck, the younger with the loss of
hearing.]

[Footnote 74: George of Pisidia, (Acroas. i. 112 - 125, p. 5,)
who states the opinions, acquits the pusillanimous counsellors of
any sinister views. Would he have excused the proud and
contemptuous admonition of Crispus?]
[Footnote 75: George Pisid. Acroas. i. 51, &c. p: 4.

     The Orientals are not less fond of remarking this strange
vicissitude; and I remember some story of Khosrou Parviz, not
very unlike the ring of Polycrates of Samos.]

[Footnote 76: Baronius gravely relates this discovery, or rather
transmutation, of barrels, not of honey, but of gold, (Annal.
Eccles. A.D. 620, No. 3, &c.) Yet the loan was arbitrary, since
it was collected by soldiers, who were ordered to leave the
patriarch of Alexandria no more than one hundred pounds of gold.
Nicephorus, (p. 11,) two hundred years afterwards, speaks with
ill humor of this contribution, which the church of
Constantinople might still feel.]

[Footnote 77: Theophylact Symocatta, l. viii. c. 12. This
circumstance need not excite our surprise. The muster-roll of a
regiment, even in time of peace, is renewed in less than twenty
or twenty-five years.]
[Footnote 78: He changed his purple for black, buckskins, and
dyed them red in the blood of the Persians, (Georg. Pisid.
Acroas. iii. 118, 121, 122 See the notes of Foggini, p. 35.)]

     The neighboring heights of Chalcedon were covered with tents
and arms: but if the new levies of Heraclius had been rashly led
to the attack, the victory of the Persians in the sight of
Constantinople might have been the last day of the Roman empire.
As imprudent would it have been to advance into the provinces of
Asia, leaving their innumerable cavalry to intercept his convoys,
and continually to hang on the lassitude and disorder of his
rear. But the Greeks were still masters of the sea; a fleet of
galleys, transports, and store-ships, was assembled in the
harbor; the Barbarians consented to embark; a steady wind carried
them through the Hellespont the western and southern coast of
Asia Minor lay on their left hand; the spirit of their chief was
first displayed in a storm, and even the eunuchs of his train
were excited to suffer and to work by the example of their
master. He landed his troops on the confines of Syria and
Cilicia, in the Gulf of Scanderoon, where the coast suddenly
turns to the south; ^79 and his discernment was expressed in the
choice of this important post. ^80 From all sides, the scattered
garrisons of the maritime cities and the mountains might repair
with speed and safety to his Imperial standard. The natural
fortifications of Cilicia protected, and even concealed, the camp
of Heraclius, which was pitched near Issus, on the same ground
where Alexander had vanquished the host of Darius. The angle
which the emperor occupied was deeply indented into a vast
semicircle of the Asiatic, Armenian, and Syrian provinces; and to
whatsoever point of the circumference he should direct his
attack, it was easy for him to dissemble his own motions, and to
prevent those of the enemy. In the camp of Issus, the Roman
general reformed the sloth and disorder of the veterans, and
educated the new recruits in the knowledge and practice of
military virtue. Unfolding the miraculous image of Christ, he
urged them to revenge the holy altars which had been profaned by
the worshippers of fire; addressing them by the endearing
appellations of sons and brethren, he deplored the public and
private wrongs of the republic. The subjects of a monarch were
persuaded that they fought in the cause of freedom; and a similar
enthusiasm was communicated to the foreign mercenaries, who must
have viewed with equal indifference the interest of Rome and of
Persia. Heraclius himself, with the skill and patience of a
centurion, inculcated the lessons of the school of tactics, and
the soldiers were assiduously trained in the use of their
weapons, and the exercises and evolutions of the field. The
cavalry and infantry in light or heavy armor were divided into
two parties; the trumpets were fixed in the centre, and their
signals directed the march, the charge, the retreat or pursuit;
the direct or oblique order, the deep or extended phalanx; to
represent in fictitious combat the operations of genuine war.
Whatever hardships the emperor imposed on the troops, he
inflicted with equal severity on himself; their labor, their
diet, their sleep, were measured by the inflexible rules of
discipline; and, without despising the enemy, they were taught to
repose an implicit confidence in their own valor and the wisdom
of their leader. Cilicia was soon encompassed with the Persian
arms; but their cavalry hesitated to enter the defiles of Mount
Taurus, till they were circumvented by the evolutions of
Heraclius, who insensibly gained their rear, whilst he appeared
to present his front in order of battle. By a false motion,
which seemed to threaten Armenia, he drew them, against their
wishes, to a general action. They were tempted by the artful
disorder of his camp; but when they advanced to combat, the
ground, the sun, and the expectation of both armies, were
unpropitious to the Barbarians; the Romans successfully repeated
their tactics in a field of battle, ^81 and the event of the day
declared to the world, that the Persians were not invincible, and
that a hero was invested with the purple. Strong in victory and
fame, Heraclius boldly ascended the heights of Mount Taurus,
directed his march through the plains of Cappadocia, and
established his troops, for the winter season, in safe and
plentiful quarters on the banks of the River Halys. ^82 His soul
was superior to the vanity of entertaining Constantinople with an
imperfect triumph; but the presence of the emperor was
indispensably required to soothe the restless and rapacious
spirit of the Avars.

[Footnote 79: George of Pisidia, (Acroas. ii. 10, p. 8) has fixed
this important point of the Syrian and Cilician gates. They are
elegantly described by Xenophon, who marched through them a
thousand years before. A narrow pass of three stadia between
steep, high rocks, and the Mediterranean, was closed at each end
by strong gates, impregnable to the land, accessible by sea,
(Anabasis, l. i. p. 35, 36, with Hutchinson's Geographical
Dissertation, p. vi.) The gates were thirty-five parasangs, or
leagues, from Tarsus, (Anabasis, l. i. p. 33, 34,) and eight or
ten from Antioch. Compare Itinerar. Wesseling, p. 580, 581.
Schultens, Index Geograph. ad calcem Vit. Saladin. p. 9. Voyage
en Turquie et en Perse, par M. Otter, tom. i. p. 78, 79.]
[Footnote 80: Heraclius might write to a friend in the modest
words of Cicero: Castra habuimus ea ipsa quae contra Darium
habuerat apud Issum Alexander, imperator haud paulo melior quam
aut tu aut ego." Ad Atticum, v. 20. Issus, a rich and
flourishing city in the time of Xenophon, was ruined by the
prosperity of Alexandria or Scanderoon, on the other side of the
bay.]
[Footnote 81: Foggini (Annotat. p. 31) suspects that the Persians
were deceived by the of Aelian, (Tactic. c. 48,) an intricate
spiral motion of the army. He observes (p. 28) that the military
descriptions of George of Pisidia are transcribed in the Tactics
of the emperor Leo.]

[Footnote 82: George of Pisidia, an eye-witness, (Acroas. ii.
122, &c.,) described in three acroaseis, or cantos, the first
expedition of Heraclius. The poem has been lately (1777)
published at Rome; but such vague and declamatory praise is far
from corresponding with the sanguine hopes of Pagi, D'Anville,
&c.]

     Since the days of Scipio and Hannibal, no bolder enterprise
has been attempted than that which Heraclius achieved for the
deliverance of the empire ^83 He permitted the Persians to
oppress for a while the provinces, and to insult with impunity
the capital of the East; while the Roman emperor explored his
perilous way through the Black Sea, ^84 and the mountains of
Armenia, penetrated into the heart of Persia, ^85 and recalled
the armies of the great king to the defence of their bleeding
country. With a select band of five thousand soldiers, Heraclius
sailed from Constantinople to Trebizond; assembled his forces
which had wintered in the Pontic regions; and, from the mouth of
the Phasis to the Caspian Sea, encouraged his subjects and allies
to march with the successor of Constantine under the faithful and
victorious banner of the cross. When the legions of Lucullus and
Pompey first passed the Euphrates, they blushed at their easy
victory over the natives of Armenia. But the long experience of
war had hardened the minds and bodies of that effeminate peeple;
their zeal and bravery were approved in the service of a
declining empire; they abhorred and feared the usurpation of the
house of Sassan, and the memory of persecution envenomed their
pious hatred of the enemies of Christ. The limits of Armenia, as
it had been ceded to the emperor Maurice, extended as far as the
Araxes: the river submitted to the indignity of a bridge, ^86 and
Heraclius, in the footsteps of Mark Antony, advanced towards the
city of Tauris or Gandzaca, ^87 the ancient and modern capital of
one of the provinces of Media. At the head of forty thousand
men, Chosroes himself had returned from some distant expedition
to oppose the progress of the Roman arms; but he retreated on the
approach of Heraclius, declining the generous alternative of
peace or of battle. Instead of half a million of inhabitants,
which have been ascribed to Tauris under the reign of the Sophys,
the city contained no more than three thousand houses; but the
value of the royal treasures was enhanced by a tradition, that
they were the spoils of Croesus, which had been transported by
Cyrus from the citadel of Sardes. The rapid conquests of
Heraclius were suspended only by the winter season; a motive of
prudence, or superstition, ^88 determined his retreat into the
province of Albania, along the shores of the Caspian; and his
tents were most probably pitched in the plains of Mogan, ^89 the
favorite encampment of Oriental princes. In the course of this
successful inroad, he signalized the zeal and revenge of a
Christian emperor: at his command, the soldiers extinguished the
fire, and destroyed the temples, of the Magi; the statues of
Chosroes, who aspired to divine honors, were abandoned to the
flames; and the ruins of Thebarma or Ormia, ^90 which had given
birth to Zoroaster himself, made some atonement for the injuries
of the holy sepulchre. A purer spirit of religion was shown in
the relief and deliverance of fifty thousand captives. Heraclius
was rewarded by their tears and grateful acclamations; but this
wise measure, which spread the fame of his benevolence, diffused
the murmurs of the Persians against the pride and obstinacy of
their own sovereign.
[Footnote 83: Theophanes (p. 256) carries Heraclius swiftly into
Armenia. Nicephorus, (p. 11,) though he confounds the two
expeditions, defines the province of Lazica. Eutychius (Annal.
tom. ii. p. 231) has given the 5000 men, with the more probable
station of Trebizond.]

[Footnote 84: From Constantinople to Trebizond, with a fair wind,
four or five days; from thence to Erzerom, five; to Erivan,
twelve; to Taurus, ten; in all, thirty-two. Such is the
Itinerary of Tavernier, (Voyages, tom. i. p. 12 - 56,) who was
perfectly conversant with the roads of Asia. Tournefort, who
travelled with a pacha, spent ten or twelve days between
Trebizond and Erzerom, (Voyage du Levant, tom. iii. lettre
xviii.;) and Chardin (Voyages, tom. i. p. 249 - 254) gives the
more correct distance of fifty-three parasangs, each of 5000
paces, (what paces?) between Erivan and Tauris.]
[Footnote 85: The expedition of Heraclius into Persia is finely
illustrated by M. D'Anville, (Memoires de l'Academie des
Inscriptions, tom. xxviii. p. 559 - 573.) He discovers the
situation of Gandzaca, Thebarma, Dastagerd, &c., with admirable
skill and learning; but the obscure campaign of 624 he passes
over in silence.]

[Footnote 86: Et pontem indignatus Araxes. - Virgil, Aeneid,
viii. 728. The River Araxes is noisy, rapid, vehement, and, with
the melting of the snows, irresistible: the strongest and most
massy bridges are swept away by the current; and its indignation
is attested by the ruins of many arches near the old town of
Zulfa. Voyages de Chardin, tom. i. p. 252.]

[Footnote 87: Chardin, tom. i. p. 255 - 259. With the Orientals,
(D'Herbelot, Biblioth. Orient. p. 834,) he ascribes the
foundation of Tauris, or Tebris, to Zobeide, the wife of the
famous Khalif Haroun Alrashid; but it appears to have been more
ancient; and the names of Gandzaca, Gazaca, Gaza, are expressive
of the royal treasure. The number of 550,000 inhabitants is
reduced by Chardin from 1,100,000, the popular estimate.]

[Footnote 88: He opened the gospel, and applied or interpreted
the first casual passage to the name and situation of Albania.
Theophanes, p. 258.]
[Footnote 89: The heath of Mogan, between the Cyrus and the
Araxes, is sixty parasangs in length and twenty in breadth,
(Olearius, p. 1023, 1024,) abounding in waters and fruitful
pastures, (Hist. de Nadir Shah, translated by Mr. Jones from a
Persian Ms., part ii. p. 2, 3.) See the encampments of Timur,
(Hist. par Sherefeddin Ali, l. v. c. 37, l. vi. c. 13,) and the
coronation of Nadir Shah, (Hist. Persanne, p. 3 - 13 and the
English Life by Mr. Jones, p. 64, 65.)]

[Footnote 90: Thebarma and Ormia, near the Lake Spauta, are
proved to be the same city by D'Anville, (Memoires de l'Academie,
tom. xxviii. p. 564, 565.) It is honored as the birthplace of
Zoroaster, according to the Persians, (Schultens, Index Geograph.
p. 48;) and their tradition is fortified by M. Perron d'Anquetil,
(Mem. de l'Acad. des Inscript. tom. xxxi. p. 375,) with some
texts from his, or their, Zendavesta.

     Note: D'Anville (Mem. de l'Acad. des Inscript. tom. xxxii.
p. 560) labored to prove the identity of these two cities; but
according to M. St. Martin, vol. xi. p. 97, not with perfect
success. Ourmiah. called Ariema in the ancient Pehlvi books, is
considered, both by the followers of Zoroaster and by the
Mahometans, as his birthplace. It is situated in the southern
part of Aderbidjan. - M.]

Chapter XLVI: Troubles In Persia.

Part IV.

     Amidst the glories of the succeeding campaign, Heraclius is
almost lost to our eyes, and to those of the Byzantine
historians. ^91 From the spacious and fruitful plains of Albania,
the emperor appears to follow the chain of Hyrcanian Mountains,
to descend into the province of Media or Irak, and to carry his
victorious arms as far as the royal cities of Casbin and Ispahan,
which had never been approached by a Roman conqueror. Alarmed by
the danger of his kingdom, the powers of Chosroes were already
recalled from the Nile and the Bosphorus, and three formidable
armies surrounded, in a distant and hostile land, the camp of the
emperor. The Colchian allies prepared to desert his standard;
and the fears of the bravest veterans were expressed, rather than
concealed, by their desponding silence. "Be not terrified," said
the intrepid Heraclius, "by the multitude of your foes. With the
aid of Heaven, one Roman may triumph over a thousand Barbarians.
But if we devote our lives for the salvation of our brethren, we
shall obtain the crown of martyrdom, and our immortal reward will
be liberally paid by God and posterity." These magnanimous
sentiments were supported by the vigor of his actions. He
repelled the threefold attack of the Persians, improved the
divisions of their chiefs, and, by a well-concerted train of
marches, retreats, and successful actions, finally chased them
from the field into the fortified cities of Media and Assyria.
In the severity of the winter season, Sarbaraza deemed himself
secure in the walls of Salban: he was surprised by the activity
of Heraclius, who divided his troops, and performed a laborious
march in the silence of the night. The flat roofs of the houses
were defended with useless valor against the darts and torches of
the Romans: the satraps and nobles of Persia, with their wives
and children, and the flower of their martial youth, were either
slain or made prisoners. The general escaped by a precipitate
flight, but his golden armor was the prize of the conqueror; and
the soldiers of Heraclius enjoyed the wealth and repose which
they had so nobly deserved. On the return of spring, the emperor
traversed in seven days the mountains of Curdistan, and passed
without resistance the rapid stream of the Tigris. Oppressed by
the weight of their spoils and captives, the Roman army halted
under the walls of Amida; and Heraclius informed the senate of
Constantinople of his safety and success, which they had already
felt by the retreat of the besiegers. The bridges of the
Euphrates were destroyed by the Persians; but as soon as the
emperor had discovered a ford, they hastily retired to defend the
banks of the Sarus, ^92 in Cilicia. That river, an impetuous
torrent, was about three hundred feet broad; the bridge was
fortified with strong turrets; and the banks were lined with
Barbarian archers. After a bloody conflict, which continued till
the evening, the Romans prevailed in the assault; and a Persian
of gigantic size was slain and thrown into the Sarus by the hand
of the emperor himself. The enemies were dispersed and dismayed;
Heraclius pursued his march to Sebaste in Cappadocia; and at the
expiration of three years, the same coast of the Euxine applauded
his return from a long and victorious expedition. ^93

[Footnote 91: I cannot find, and (what is much more,) M.
D'Anville does not attempt to seek, the Salban, Tarantum,
territory of the Huns, &c., mentioned by Theophanes, (p. 260 -
262.) Eutychius, (Annal. tom. ii. p. 231, 232,) an insufficient
author, names Asphahan; and Casbin is most probably the city of
Sapor. Ispahan is twenty-four days' journey from Tauris, and
Casbin half way between, them (Voyages de Tavernier, tom. i. p.
63 - 82.)]
[Footnote 92: At ten parasangs from Tarsus, the army of the
younger Cyrus passed the Sarus, three plethra in breadth: the
Pyramus, a stadium in breadth, ran five parasangs farther to the
east, (Xenophon, Anabas. l. i. p 33, 34.)
     Note: Now the Sihan. - M.]

[Footnote 93: George of Pisidia (Bell. Abaricum, 246 - 265, p.
49) celebrates with truth the persevering courage of the three
campaigns against the Persians.]

     Instead of skirmishing on the frontier, the two monarchs who
disputed the empire of the East aimed their desperate strokes at
the heart of their rival. The military force of Persia was wasted
by the marches and combats of twenty years, and many of the
veterans, who had survived the perils of the sword and the
climate, were still detained in the fortresses of Egypt and
Syria. But the revenge and ambition of Chosroes exhausted his
kingdom; and the new levies of subjects, strangers, and slaves,
were divided into three formidable bodies. ^94 The first army of
fifty thousand men, illustrious by the ornament and title of the
golden spears, was destined to march against Heraclius; the
second was stationed to prevent his junction with the troops of
his brother Theodorus; and the