History of the Decline and Fall of the Roman Empire — Volume 4 online

reason to deride the folly of their Spanish conquerors, who with so
much cost and labor erected their own sepulchres. The rich marbles of a
patrician are dashed on his own head: a whole people is buried under the
ruins of public and private edifices, and the conflagration is kindled
and propagated by the innumerable fires which are necessary for the
subsistence and manufactures of a great city. Instead of the mutual
sympathy which might comfort and assist the distressed, they dreadfully
experience the vices and passions which are released from the fear
of punishment: the tottering houses are pillaged by intrepid avarice;
revenge embraces the moment, and selects the victim; and the earth often
swallows the assassin, or the ravisher, in the consummation of their
crimes. Superstition involves the present danger with invisible terrors;
and if the image of death may sometimes be subservient to the virtue or
repentance of individuals, an affrighted people is more forcibly moved
to expect the end of the world, or to deprecate with servile homage the
wrath of an avenging Deity.

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

Contagion is the inseparable symptom of the plague; which, by mutual
respiration, is transfused from the infected persons to the lungs and
stomach of those who approach them. While philosophers believe and
tremble, it is singular, that the existence of a real danger should have
been denied by a people most prone to vain and imaginary terrors. Yet
the fellow-citizens of Procopius were satisfied, by some short and
partial experience, that the infection could not be gained by the
closest conversation: and this persuasion might support the assiduity
of friends or physicians in the care of the sick, whom inhuman prudence
would have condemned to solitude and despair. But the fatal security,
like the predestination of the Turks, must have aided the progress
of the contagion; and those salutary precautions to which Europe is
indebted for her safety, were unknown to the government of Justinian.
No restraints were imposed on the free and frequent intercourse of the
Roman provinces: from Persia to France, the nations were mingled and
infected by wars and emigrations; and the pestilential odor which lurks
for years in a bale of cotton was imported, by the abuse of trade, into
the most distant regions. The mode of its propagation is explained
by the remark of Procopius himself, that it always spread from the
sea-coast to the inland country: the most sequestered islands and
mountains were successively visited; the places which had escaped the
fury of its first passage were alone exposed to the contagion of the
ensuing year. The winds might diffuse that subtile venom; but unless the
atmosphere be previously disposed for its reception, the plague would
soon expire in the cold or temperate climates of the earth. Such was the
universal corruption of the air, that the pestilence which burst forth
in the fifteenth year of Justinian was not checked or alleviated by any
difference of the seasons. In time, its first malignity was abated and
dispersed; the disease alternately languished and revived; but it was
not till the end of a calamitous period of fifty-two years, that mankind
recovered their health, or the air resumed its pure and salubrious
quality. No facts have been preserved to sustain an account, or even
a conjecture, of the numbers that perished in this extraordinary
mortality. I only find, that during three months, five, and at length
ten, thousand persons died each day at Constantinople; that many cities
of the East were left vacant, and that in several districts of Italy the
harvest and the vintage withered on the ground. The triple scourge of
war, pestilence, and famine, afflicted the subjects of Justinian; and
his reign is disgraced by the visible decrease of the human species,
which has never been repaired in some of the fairest countries of the
globe.




Chapter XLIV: Idea Of The Roman Jurisprudence. - Part I.

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

The vain titles of the victories of Justinian are crumbled into dust;
but the name of the legislator is inscribed on a fair and everlasting
monument. Under his reign, and by his care, the civil jurisprudence
was digested in the immortal works of the Code, the Pandects, and
the Institutes: the public reason of the Romans has been silently or
studiously transfused into the domestic institutions of Europe,, and the
laws of Justinian still command the respect or obedience of independent
nations. Wise or fortunate is the prince who connects his own reputation
with the honor or interest of a perpetual order of men. The defence of
their founder is the first cause, which in every age has exercised
the zeal and industry of the civilians. They piously commemorate his
virtues; dissemble or deny his failings; and fiercely chastise the guilt
or folly of the rebels, who presume to sully the majesty of the purple.
The idolatry of love has provoked, as it usually happens, the rancor
of opposition; the character of Justinian has been exposed to the blind
vehemence of flattery and invective; and the injustice of a sect (the
_Anti-Tribonians_,) has refused all praise and merit to the prince, his
ministers, and his laws. Attached to no party, interested only for the
truth and candor of history, and directed by the most temperate and
skilful guides, I enter with just diffidence on the subject of civil
law, which has exhausted so many learned lives, and clothed the walls of
such spacious libraries. In a single, if possible in a short, chapter,
I shall trace the Roman jurisprudence from Romulus to Justinian,
appreciate the labors of that emperor, and pause to contemplate the
principles of a science so important to the peace and happiness of
society. The laws of a nation form the most instructive portion of its
history; and although I have devoted myself to write the annals of a
declining monarchy, I shall embrace the occasion to breathe the pure and
invigorating air of the republic.

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

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




Chapter XLIV: Idea Of The Roman Jurisprudence. - Part II.

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

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

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

From Augustus to Trajan, the modest Cæsars were content to promulgate
their edicts in the various characters of a Roman magistrate; and, in
the decrees of the senate, the _epistles_ and _orations_ of the prince
were respectfully inserted. Adrian appears to have been the first who
assumed, without disguise, the plenitude of legislative power. And this
innovation, so agreeable to his active mind, was countenanced by the
patience of the times, and his long absence from the seat of government.
The same policy was embraced by succeeding monarchs, and, according to
the harsh metaphor of Tertullian, "the gloomy and intricate forest
of ancient laws was cleared away by the axe of royal mandates and
_constitutions_." During four centuries, from Adrian to Justinian
the public and private jurisprudence was moulded by the will of the
sovereign; and few institutions, either human or divine, were permitted
to stand on their former basis. The origin of Imperial legislation was
concealed by the darkness of ages and the terrors of armed despotism;
and a double fiction was propagated by the servility, or perhaps the
ignorance, of the civilians, who basked in the sunshine of the Roman and
Byzantine courts. 1. To the prayer of the ancient Cæsars, the people
or the senate had sometimes granted a personal exemption from the
obligation and penalty of particular statutes; and each indulgence was