About two years after the last victory of Belisarius, the emperor returned from a Thracian journey of health, or business, or devotion. Justinian was afflicted by a pain in his head; and his private entry countenanced the rumor of his death. Before the third hour of the day, the bakers' shops were plundered of their bread, the houses were shut, and every citizen, with hope or terror, prepared for the impending tumult. The senators themselves, fearful and suspicious, were convened at the ninth hour; and the præfect received their commands to visit every quarter of the city, and proclaim a general illumination for the recovery of the emperor's health. The ferment subsided; but every accident betrayed the impotence of the government, and the factious temper of the people: the guards were disposed to mutiny as often as their quarters were changed, or their pay was withheld: the frequent calamities of fires and earthquakes afforded the opportunities of disorder; the disputes of the blues and greens, of the orthodox and heretics, degenerated into bloody battles; and, in the presence of the Persian ambassador, Justinian blushed for himself and for his subjects. Capricious pardon and arbitrary punishment imbittered the irksomeness and discontent of a long reign: a conspiracy was formed in the palace; and, unless we are deceived by the names of Marcellus and Sergius, the most virtuous and the most profligate of the courtiers were associated in the same designs. They had fixed the time of the execution; their rank gave them access to the royal banquet; and their black slaves were stationed in the vestibule and porticos, to announce the death of the tyrant, and to excite a sedition in the capital. But the indiscretion of an accomplice saved the poor remnant of the days of Justinian. The conspirators were detected and seized, with daggers hidden under their garments: Marcellus died by his own hand, and Sergius was dragged from the sanctuary. Pressed by remorse, or tempted by the hopes of safety, he accused two officers of the household of Belisarius; and torture forced them to declare that they had acted according to the secret instructions of their patron. Posterity will not hastily believe that a hero who, in the vigor of life, had disdained the fairest offers of ambition and revenge, should stoop to the murder of his prince, whom he could not long expect to survive. His followers were impatient to fly; but flight must have been supported by rebellion, and he had lived enough for nature and for glory. Belisarius appeared before the council with less fear than indignation: after forty years' service, the emperor had prejudged his guilt; and injustice was sanctified by the presence and authority of the patriarch. The life of Belisarius was graciously spared; but his fortunes were sequestered, and, from December to July, he was guarded as a prisoner in his own palace. At length his innocence was acknowledged; his freedom and honor were restored; and death, which might be hastened by resentment and grief, removed him from the world in about eight months after his deliverance. The name of Belisarius can never die but instead of the funeral, the monuments, the statues, so justly due to his memory, I only read, that his treasures, the spoil of the Goths and Vandals, were immediately confiscated by the emperor. Some decent portion was reserved, however for the use of his widow: and as Antonina had much to repent, she devoted the last remains of her life and fortune to the foundation of a convent. Such is the simple and genuine narrative of the fall of Belisarius and the ingratitude of Justinian. That he was deprived of his eyes, and reduced by envy to beg his bread, "Give a penny to Belisarius the general!" is a fiction of later times, which has obtained credit, or rather favor, as a strange example of the vicissitudes of fortune.
If the emperor could rejoice in the death of Belisarius, he enjoyed the base satisfaction only eight months, the last period of a reign of thirty-eight years, and a life of eighty-three years. It would be difficult to trace the character of a prince who is not the most conspicuous object of his own times: but the confessions of an enemy may be received as the safest evidence of his virtues. The resemblance of Justinian to the bust of Domitian, is maliciously urged; with the acknowledgment, however, of a well-proportioned figure, a ruddy complexion, and a pleasing countenance. The emperor was easy of access, patient of hearing, courteous and affable in discourse, and a master of the angry passions which rage with such destructive violence in the breast of a despot. Procopius praises his temper, to reproach him with calm and deliberate cruelty: but in the conspiracies which attacked his authority and person, a more candid judge will approve the justice, or admire the clemency, of Justinian. He excelled in the private virtues of chastity and temperance: but the impartial love of beauty would have been less mischievous than his conjugal tenderness for Theodora; and his abstemious diet was regulated, not by the prudence of a philosopher, but the superstition of a monk. His repasts were short and frugal: on solemn fasts, he contented himself with water and vegetables; and such was his strength, as well as fervor, that he frequently passed two days, and as many nights, without tasting any food. The measure of his sleep was not less rigorous: after the repose of a single hour, the body was awakened by the soul, and, to the astonishment of his chamberlain, Justinian walked or studied till the morning light. Such restless application prolonged his time for the acquisition of knowledge and the despatch of business; and he might seriously deserve the reproach of confounding, by minute and preposterous diligence, the general order of his administration. The emperor professed himself a musician and architect, a poet and philosopher, a lawyer and theologian; and if he failed in the enterprise of reconciling the Christian sects, the review of the Roman jurisprudence is a noble monument of his spirit and industry. In the government of the empire, he was less wise, or less successful: the age was unfortunate; the people was oppressed and discontented; Theodora abused her power; a succession of bad ministers disgraced his judgment; and Justinian was neither beloved in his life, nor regretted at his death. The love of fame was deeply implanted in his breast, but he condescended to the poor ambition of titles, honors, and contemporary praise; and while he labored to fix the admiration, he forfeited the esteem and affection, of the Romans. The design of the African and Italian wars was boldly conceived and executed; and his penetration discovered the talents of Belisarius in the camp, of Narses in the palace. But the name of the emperor is eclipsed by the names of his victorious generals; and Belisarius still lives, to upbraid the envy and ingratitude of his sovereign. The partial favor of mankind applauds the genius of a conqueror, who leads and directs his subjects in the exercise of arms. The characters of Philip the Second and of Justinian are distinguished by the cold ambition which delights in war, and declines the dangers of the field. Yet a colossal statue of bronze represented the emperor on horseback, preparing to march against the Persians in the habit and armor of Achilles. In the great square before the church of St. Sophia, this monument was raised on a brass column and a stone pedestal of seven steps; and the pillar of Theodosius, which weighed seven thousand four hundred pounds of silver, was removed from the same place by the avarice and vanity of Justinian. Future princes were more just or indulgent to his memory; the elder Andronicus, in the beginning of the fourteenth century, repaired and beautified his equestrian statue: since the fall of the empire it has been melted into cannon by the victorious Turks.
I shall conclude this chapter with the comets, the earthquakes, and the plague, which astonished or afflicted the age of Justinian.
I. In the fifth year of his reign, and in the month of September, a comet was seen during twenty days in the western quarter of the heavens, and which shot its rays into the north. Eight years afterwards, while the sun was in Capricorn, another comet appeared to follow in the Sagittary; the size was gradually increasing; the head was in the east, the tail in the west, and it remained visible above forty days. The nations, who gazed with astonishment, expected wars and calamities from their baleful influence; and these expectations were abundantly fulfilled. The astronomers dissembled their ignorance of the nature of these blazing stars, which they affected to represent as the floating meteors of the air; and few among them embraced the simple notion of Seneca and the Chaldeans, that they are only planets of a longer period and more eccentric motion. Time and science have justified the conjectures and predictions of the Roman sage: the telescope has opened new worlds to the eyes of astronomers; and, in the narrow space of history and fable, one and the same comet is already found to have revisited the earth in seven equal revolutions of five hundred and seventy-five years. The first, which ascends beyond the Christian æra one thousand seven hundred and sixty-seven years, is coeval with Ogyges, the father of Grecian antiquity. And this appearance explains the tradition which Varro has preserved, that under his reign the planet Venus changed her color, size, figure, and course; a prodigy without example either in past or succeeding ages. The second visit, in the year eleven hundred and ninety-three, is darkly implied in the fable of Electra, the seventh of the Pleiads, who have been reduced to six since the time of the Trojan war. That nymph, the wife of Dardanus, was unable to support the ruin of her country: she abandoned the dances of her sister orbs, fled from the zodiac to the north pole, and obtained, from her dishevelled locks, the name of the comet. The third period expires in the year six hundred and eighteen, a date that exactly agrees with the tremendous comet of the Sibyl, and perhaps of Pliny, which arose in the West two generations before the reign of Cyrus. The fourth apparition, forty-four years before the birth of Christ, is of all others the most splendid and important. After the death of Cæsar, a long-haired star was conspicuous to Rome and to the nations, during the games which were exhibited by young Octavian in honor of Venus and his uncle. The vulgar opinion, that it conveyed to heaven the divine soul of the dictator, was cherished and consecrated by the piety of a statesman; while his secret superstition referred the comet to the glory of his own times. The fifth visit has been already ascribed to the fifth year of Justinian, which coincides with the five hundred and thirty-first of the Christian æra. And it may deserve notice, that in this, as in the preceding instance, the comet was followed, though at a longer interval, by a remarkable paleness of the sun. The sixth return, in the year eleven hundred and six, is recorded by the chronicles of Europe and China: and in the first fervor of the crusades, the Christians and the Mahometans might surmise, with equal reason, that it portended the destruction of the Infidels. The seventh phenomenon, of one thousand six hundred and eighty, was presented to the eyes of an enlightened age. The philosophy of Bayle dispelled a prejudice which Milton's muse had so recently adorned, that the comet, "from its horrid hair shakes pestilence and war." Its road in the heavens was observed with exquisite skill by Flamstead and Cassini: and the mathematical science of Bernoulli, Newton, and Halley, investigated the laws of its revolutions. At the eighth period, in the year two thousand three hundred and fifty-five, their calculations may perhaps be verified by the astronomers of some future capital in the Siberian or American wilderness.
II. The near approach of a comet may injure or destroy the globe which we inhabit; but the changes on its surface have been hitherto produced by the action of volcanoes and earthquakes. The nature of the soil may indicate the countries most exposed to these formidable concussions, since they are caused by subterraneous fires, and such fires are kindled by the union and fermentation of iron and sulphur. But their times and effects appear to lie beyond the reach of human curiosity; and the philosopher will discreetly abstain from the prediction of earthquakes, till he has counted the drops of water that silently filtrate on the inflammable mineral, and measured the caverns which increase by resistance the explosion of the imprisoned air. Without assigning the cause, history will distinguish the periods in which these calamitous events have been rare or frequent, and will observe, that this fever of the earth raged with uncommon violence during the reign of Justinian. Each year is marked by the repetition of earthquakes, of such duration, that Constantinople has been shaken above forty days; of such extent, that the shock has been communicated to the whole surface of the globe, or at least of the Roman empire. An impulsive or vibratory motion was felt: enormous chasms were opened, huge and heavy bodies were discharged into the air, the sea alternately advanced and retreated beyond its ordinary bounds, and a mountain was torn from Libanus, and cast into the waves, where it protected, as a mole, the new harbor of Botrys in Phnicia. The stroke that agitates an ant-hill may crush the insect-myriads in the dust; yet truth must extort confession that man has industriously labored for his own destruction. The institution of great cities, which include a nation within the limits of a wall, almost realizes the wish of Caligula, that the Roman people had but one neck. Two hundred and fifty thousand persons are said to have perished in the earthquake of Antioch, whose domestic multitudes were swelled by the conflux of strangers to the festival of the Ascension. The loss of Berytus was of smaller account, but of much greater value. That city, on the coast of Phnicia, was illustrated by the study of the civil law, which opened the surest road to wealth and dignity: the schools of Berytus were filled with the rising spirits of the age, and many a youth was lost in the earthquake, who might have lived to be the scourge or the guardian of his country. In these disasters, the architect becomes the enemy of mankind. The hut of a savage, or the tent of an Arab, may be thrown down without injury to the inhabitant; and the Peruvians had 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.
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 curiæ 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.
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 an act of jurisdiction exercised by the republic over the first of her citizens. His humble privilege was at length transformed into the prerogative of a tyrant; and the Latin expression of "released from the laws" was supposed to exalt the emperor above all human restraints, and to leave his conscience and reason as the sacred measure of his conduct. 2. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elective magistrate. But it was not before the ideas, and even the language, of the Romans had been corrupted, that a royal law, and an irrevocable gift of the people, were created by the fancy of Ulpian, or more probably of Tribonian himself; and the origin of Imperial power, though false in fact, and slavish in its consequence, was supported on a principle of freedom and justice. "The pleasure of the emperor has the vigor and effect of law, since the Roman people, by the royal law, have transferred to their prince the full extent of their own power and sovereignty." The will of a single man, of a child perhaps, was allowed to prevail over the wisdom of ages and the inclinations of millions; and the degenerate Greeks were proud to declare, that in his hands alone the arbitrary exercise of legislation could be safely deposited. "What interest or passion," exclaims Theophilus in the court of Justinian, "can reach the calm and sublime elevation of the monarch? He is already master of the lives and fortunes of his subjects; and those who have incurred his displeasure are already numbered with the dead." Disdaining the language of flattery, the historian may confess, that in questions of private jurisprudence, the absolute sovereign of a great empire can seldom be influenced by any personal considerations. Virtue, or even reason, will suggest to his impartial mind, that he is the guardian of peace and equity, and that the interest of society is inseparably connected with his own. Under the weakest and most vicious reign, the seat of justice was filled by the wisdom and integrity of Papinian and Ulpian; and the purest materials of the Code and Pandects are inscribed with the names of Caracalla and his ministers. The tyrant of Rome was sometimes the benefactor of the provinces. A dagger terminated the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate. Yet in the rescripts, replies to the consultations of the magistrates, the wisest of princes might be deceived by a partial exposition of the case. And this abuse, which placed their hasty decisions on the same level with mature and deliberate acts of legislation, was ineffectually condemned by the sense and example of Trajan. The rescripts of the emperor, his grants and decrees, his edicts and pragmatic sanctions, were subscribed in purple ink, and transmitted to the provinces as general or special laws, which the magistrates were bound to execute, and the people to obey. But as their number continually multiplied, the rule of obedience became each day more doubtful and obscure, till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes. * The two first, of which some fragments have escaped, were framed by two private lawyers, to preserve the constitutions of the Pagan emperors from Adrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained an equal authority in the tribunals; and any act which was not included in the sacred deposit might be disregarded by the judge as spurious or obsolete.
Among savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage-life was denoted by the necessary elements of fire and water; and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clinched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and scales were introduced into every payment, and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap or dance with real or affected transport. If a citizen pursued any stolen goods into a neighbor's house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should encounter the eyes of a virgin or a matron. In a civil action the plaintiff touched the ear of his witness, seized his reluctant adversary by the neck, and implored, in solemn lamentation, the aid of his fellow-citizens. The two competitors grasped each other's hand as if they stood prepared for combat before the tribunal of the prætor; he commanded them to produce the object of the dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended. This occult science of the words and actions of law was the inheritance of the pontiffs and patricians. Like the Chaldean astrologers, they announced to their clients the days of business and repose; these important trifles were interwoven with the religion of Numa; and after the publication of the Twelve Tables, the Roman people was still enslaved by the ignorance of judicial proceedings. The treachery of some plebeian officers at length revealed the profitable mystery: in a more enlightened age, the legal actions were derided and observed; and the same antiquity which sanctified the practice, obliterated the use and meaning of this primitive language.
A more liberal art was cultivated, however, by the sage of Rome, who, in a stricter sense, may be considered as the authors of the civil law. The alteration of the idiom and manners of the Romans rendered the style of the Twelve Tables less familiar to each rising generation, and the doubtful passages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circumscribe the latitude, to apply the principles, to extend the consequences, to reconcile the real or apparent contradictions, was a much nobler and more important task; and the province of legislation was silently invaded by the expounders of ancient statutes. Their subtle interpretations concurred with the equity of the prætor, to reform the tyranny of the darker ages: however strange or intricate the means, it was the aim of artificial jurisprudence to restore the simple dictates of nature and reason, and the skill of private citizens was usefully employed to undermine the public institutions of their country. The revolution of almost one thousand years, from the Twelve Tables to the reign of Justinian, may be divided into three periods, almost equal in duration, and distinguished from each other by the mode of instruction and the character of the civilians. Pride and ignorance contributed, during the first period, to confine within narrow limits the science of the Roman law. On the public days of market or assembly, the masters of the art were seen walking in the forum ready to impart the needful advice to the meanest of their fellow-citizens, from whose votes, on a future occasion, they might solicit a grateful return. As their years and honors increased, they seated themselves at home on a chair or throne, to expect with patient gravity the visits of their clients, who at the dawn of day, from the town and country, began to thunder at their door. The duties of social life, and the incidents of judicial proceeding, were the ordinary subject of these consultations, and the verbal or written opinion of the juris-consults was framed according to the rules of prudence and law. The youths of their own order and family were permitted to listen; their children enjoyed the benefit of more private lessons, and the Mucian race was long renowned for the hereditary knowledge of the civil law. The second period, the learned and splendid age of jurisprudence, may be extended from the birth of Cicero to the reign of Severus Alexander. A system was formed, schools were instituted, books were composed, and both the living and the dead became subservient to the instruction of the student. The tripartite of Ælius Pætus, surnamed Catus, or the Cunning, was preserved as the oldest work of Jurisprudence. Cato the censor derived some additional fame from his legal studies, and those of his son: the kindred appellation of Mucius Scævola was illustrated by three sages of the law; but the perfection of the science was ascribed to Servius Sulpicius, their disciple, and the friend of Tully; and the long succession, which shone with equal lustre under the republic and under the Cæsars, is finally closed by the respectable characters of Papinian, of Paul, and of Ulpian. Their names, and the various titles of their productions, have been minutely preserved, and the example of Labeo may suggest some idea of their diligence and fecundity. That eminent lawyer of the Augustan age divided the year between the city and country, between business and composition; and four hundred books are enumerated as the fruit of his retirement. Of the collection of his rival Capito, the two hundred and fifty-ninth book is expressly quoted; and few teachers could deliver their opinions in less than a century of volumes. In the third period, between the reigns of Alexander and Justinian, the oracles of jurisprudence were almost mute. The measure of curiosity had been filled: the throne was occupied by tyrants and Barbarians, the active spirits were diverted by religious disputes, and the professors of Rome, Constantinople, and Berytus, were humbly content to repeat the lessons of their more enlightened predecessors. From the slow advances and rapid decay of these legal studies, it may be inferred, that they require a state of peace and refinement. From the multitude of voluminous civilians who fill the intermediate space, it is evident that such studies may be pursued, and such works may be performed, with a common share of judgment, experience, and industry. The genius of Cicero and Virgil was more sensibly felt, as each revolving age had been found incapable of producing a similar or a second: but the most eminent teachers of the law were assured of leaving disciples equal or superior to themselves in merit and reputation.
The jurisprudence which had been grossly adapted to the wants of the first Romans, was polished and improved in the seventh century of the city, by the alliance of Grecian philosophy. The Scævolas had been taught by use and experience; but Servius Sulpicius was the first civilian who established his art on a certain and general theory. For the discernment of truth and falsehood he applied, as an infallible rule, the logic of Aristotle and the stoics, reduced particular cases to general principles, and diffused over the shapeless mass the light of order and eloquence. Cicero, his contemporary and friend, declined the reputation of a professed lawyer; but the jurisprudence of his country was adorned by his incomparable genius, which converts into gold every object that it touches. After the example of Plato, he composed a republic; and, for the use of his republic, a treatise of laws; in which he labors to deduce from a celestial origin the wisdom and justice of the Roman constitution. The whole universe, according to his sublime hypothesis, forms one immense commonwealth: gods and men, who participate of the same essence, are members of the same community; reason prescribes the law of nature and nations; and all positive institutions, however modified by accident or custom, are drawn from the rule of right, which the Deity has inscribed on every virtuous mind. From these philosophical mysteries, he mildly excludes the sceptics who refuse to believe, and the epicureans who are unwilling to act. The latter disdain the care of the republic: he advises them to slumber in their shady gardens. But he humbly entreats that the new academy would be silent, since her bold objections would too soon destroy the fair and well ordered structure of his lofty system. Plato, Aristotle, and Zeno, he represents as the only teachers who arm and instruct a citizen for the duties of social life. Of these, the armor of the stoics was found to be of the firmest temper; and it was chiefly worn, both for use and ornament, in the schools of jurisprudence. From the portico, the Roman civilians learned to live, to reason, and to die: but they imbibed in some degree the prejudices of the sect; the love of paradox, the pertinacious habits of dispute, and a minute attachment to words and verbal distinctions. The superiority of form to matter was introduced to ascertain the right of property: and the equality of crimes is countenanced by an opinion of Trebatius, that he who touches the ear, touches the whole body; and that he who steals from a heap of corn, or a hogshead of wine, is guilty of the entire theft.
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 prætor 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, 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 Scævolas themselves, which was often overthrown by the eloquence or sophistry of an ingenious pleader. 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 prætor 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.
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. Two sages of the law, Ateius Capito and Antistius Labeo, 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; and he consulted nature for the age of puberty, without confining his definition to the precise period of twelve or fourteen years. 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; 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, a timid slave of Domitian, while the favorite of the Cæsars was represented by Cassius, 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. 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.