 Chapter 43, Part 4 of the Decline and Fall of the Roman Empire, Volume 4, this is a LibriVox recording. All LibriVox recordings are in a public domain. For more information or to volunteer, please visit LibriVox.org. Chapter 43, Last Victory and Death of Belisarius, Death of Justinian, Part 4 About two years after the last victory of Belisarius, the Emperor returned from the Trachean journey of health or business or devotion. Justinian was afflicted by pain in his head, and his private entry countenanced the rumour of his death. Before the third hour of the day, the baker's 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 prefect received their commands to visit every quarter of the city and to proclaim a general illumination for the recovery of the Emperor's health. The ferments 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 well-held. The frequent calamities of fires and earthquakes afforded the opportunities of disorder. The disputes of the blues and the greens, or 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 embittered the irksomeness and discontent of a long reign. A conspiracy was formed in the palace, and, unless we're deceived by the names of Markelus 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 the black slaves were stationed in the vestigal and porticus to announce the death of the tyrant and to excite the 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 the 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 fourth year 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 gods 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 must be received as the safest evidence of his virtues. The resemblance of Justinian to the bust of Domitian is maliciously urged, with the acknowledgement, however, of a well-proportioned figure, a ready 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. The emperor Procopius praises his temper to reproach him with calm and deliberate cruelty, but in the conspiracies which attacked his authority and the 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 abstemous diet was regulated not by the prudence of the philosopher, but the superstition of a monk. The three pasts were short and frugal. On Solomon's fasts he contended 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 the morning light. Such a restless application prolonged his time for the acquisition of knowledge and the dispatch of business, and he might seriously deserve the reproach or confounding by my newt 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 to his spirit and industry. In the government of the empire, he was less wise or less successful. The age was unfortunate, the people were oppressed and discontented. Theodor Abius had 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 press, but he condescended to the poor ambition of titles, honors and contemporary praise, and while he laboured 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 and Narcissus in the palace. But the name of the emperor is eclipsed by the names of his victorious generals, and Belisarius still lives to upgrade the envy and ingratitude with sovereign. The partial favour of mankind applauds the genius of a conqueror who leads and directs his subjects in the exercise of arms. The characters of Philip II and of Justinian are distinguished by the cold ambition which delights in war and declines the dangers of the field. Yet the colossal statue of bronze represented the emperor on horseback, preparing to march against the Persians in the habit and armour 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 7400 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 14th century, repaired and beautified his equestrian statue. Since the fall of the empire, it has been melted into canon 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. 1. In the fiftieth year with rain, 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 Sagittari. 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 at 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 era one thousand seven hundred and sixty-seven years, is co-evil with Ogugus, the father of Grecian antiquity, and this appearance explains the tradition which Varro has preserved, that under his reign the planet Venus changed her colour, size, figure and course, a prodigy without example either in past or succeeding ages. The second visit, in the year eleven hundred ninety-three, is darkly implied in the fable of Electra, the seventh of the Pleiades, who had 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 disheveled 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 Zeros. The fourth apparition, forty-four years before the birth of Christ, is of all others the most splendid and important. After the death of Caesar, a long-haired star was conspicuous to Rome and 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 50th year of Justinian, which coincides with the 531st of the Christian era, 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 1106, is recorded by the chronicles of Europe and China, and in the first fervor of the Crusades, the Christians and the Mohammedans might surmise with equal reason that it portended the destruction of the infidels. The seventh phenomenon, of 1680, was presented to the eyes of an enlightened age. The philosopher Bale dispelled the prejudice which Milton's muse had so recently adorned at the comet from its horrid hair, shakes, pestilence and war. Its role in the heavens was observed with exquisite skill by Flamsted and Cassini, and the mathematical science of Bernoulli, Newton and Halley investigated the laws with revolutions. At the 8th period, in the year 2355, their calculations may perhaps be verified by the astronomers on some future capital in the Siberian or American wilderness. Two, 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 actions of volcanoes and earthquakes. The nature of the soil may indicate the country is most exposed to these formidable concussions, since they are caused by subterranean fires, and such fires are kindled by the union and fermentation of iron and sulfur. But third times in effects appeared 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 material and measured the caverns which increase by resistance the explosion of the imprisoned air. Without assigning the course, 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 about 40 days, of such extent that the shock has been communicated to the whole surface of the globe, or at least to 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 harbour of botaries in Phoenicia. The stroke that agitates and until may crush the insect myriads in the dust, yet truth must extort confession that man has industriously laboured for his own destruction. The institution of great cities, which include the nation within the limits of a wall, almost realises the wish of Caligula that their own people had but one neck. 250,000 persons are said to have perished in the earthquake of Antioch, whose domestic multitudes were swelled by the conflicts of strangers to the festival of the ascension. The loss of Beritus was of a smaller account, but of much greater value. That city, on the coast of Phoenicia, was illustrated by the study of the civil law, which opened the shortest road to wealth and dignity. The schools of Beritus 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 inhabitants, and the Peruvians had reason to derive the folly of the Spanish conquerors, who with so much cost and labour 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, and a frightened people is more forcibly moved to expect the end of the world, or to deprecate with servile homage the wrath of an avenging deity. 3. Ethiopian 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 Serbonium Bog and the Eastern Channel of Denial. From thence, tracing as it were a double part, 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, as emulated the skill and diligence of tucheditas 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 specter. 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 boobos, or tumors, were opened, they were found to contain a coal, or black substance, or the size of a lentil. If they came to adjust swelling and supuration, the patient was saved by this kind of 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 posterioris or carbuncles, the symptoms of immediate death. And in the constitutions, too feeble to produce an eruption. The vomiting of blood was followed by a mortification of the bowels. The pregnant women in the plague was generally mortal, yet one infant was thrown alive from his dead mother, and three mothers survived the loss of their infected fetus. 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 the return of the disorder. The physicians, or Constantinople, were zealous and skillful, but their art was baffled by the various symptoms and pertinacious vehemence of the disease. The same enemies were productive of contrary effects, and the event capriciously disappointed the 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. An magistrate was authorized to collect the promiscuous heaps of dead bodies, to transport them by land or water, and to endure 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 favour 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 honourable 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. Chapter 44 Part 1 of the Decline and Fall of the Roman Empire Volume 4 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Adam Ringeth Chapter 44 Idea of the Roman Juris Prudence Chapter sections The Laws of the Kings The Twelve Tables of the December The Laws of the People The Decrees of the Senate The Edicts of the Magistrates and Emperors Authority of the Civilians Code, Pandex, Novels and Institutes of Justinian One, Rights of Persons Two, Rights of Things Three, Private Injuries and Actions Four, 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 Pandex 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 Justinians 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 defense of their founders, 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 phalegs, 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 ranker 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 tempered and skillful guides, I enter with just diffidence on the subject of the 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 jurist's prudence from Romulus to Justinian, appreciate the labours 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 curiae or parishes of the city. Romulus, Numa, and Servius Tullius are celebrated as the most ancient legislators, and each of them claims his particular part in the threefold division of jurist prudence. 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 Egyria. The civil law is attributed to the experience of Servius. He balanced the rights and fortunes of 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 runeness of the pelasgic idiom of the Latins. I should not repeat the well-known story of the December's, who sullied by their actions the honour 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 neighbours. 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 harvest 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 Tiber might return from the same harbours with a more precious cargo of political wisdom. The colonies of great Greece had transported and improved the arts of their mother country. Qumai and Regium, 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 Charcondus accepted the aid of poetry and music. And Zalucis framed the public of the Locrians, which stood without alteration above 200 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. The laws of Solon were transfused into the 12 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 December's, 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 Phoenicia. 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. End of chapter 44 part 1, recording by Adam Ringuth. Chapter 44 part 2 of the decline and fall of the Roman Empire, volume 4. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Adam Ringuth. Whatever might be the origin or the merit of the 12 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. Quote. 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 December's surpasses in genuine value the libraries of Grecian philosophy. How admirable, unquote, says Tully with honest or affected prejudice, quote, 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 Lycurgus, unquote. The 12 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 capital. And some of the acts, as the Julian law against extortion, surpassed the number of a hundred chapters. The December's had neglected to import the sanction of Zalusus, 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 December's 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, 98 votes were assigned, and only 95 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 tribe 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 leveled 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. Perpersious, 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, whose 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. An opium 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 Caesars, 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 preachers, and a similar right was assumed by the tribunes of the people, the edoils, 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 preter 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 preters. Subtleties and fictions were invented to defeat the plainest meaning of the December's, 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 a claimant who was excluded from the character of heir, accepted with equal pleasure from an indulgent preter the possession of the goods of his late kinsmen or benefactor. In the redress of private wrongs, compensations and fines were substituted to the absolute 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 preter 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 preter 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 Caesar, and the pretership of Salveus 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 Caesars were content to promulgate their edicts in the various characters of a Roman magistrate, and in the decrees of the Senate, the epistles and errations 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, quote, the gloomy and intricate forest of ancient laws was cleared away by the acts of royal mandates and constitutions, unquote. During four centuries, from Adrian to Justinian, the public and private jurisprudence was molded 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 tiction was propagated by the servility, or perhaps the ignorance of the civilians, who basked in the sunshine of the Roman and Byzantine courts. To the prayer of the ancient Caesars, 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 a Latin expression of, quote, released from the laws, unquote, was supposed to exalt the emperor above all human restraints and to leave his conscience and reason as the sacred measure of his conduct. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elective magistrate. There 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 was created by the fancy of Alpian, 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, quote, 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, unquote. 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, quote, what interest or passion, unquote, exclaims theophilus in the court of Justinian, quote, could 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, unquote. Distaining 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 Opium, and the purest materials of the code and pandex are inscribed with the names of Caracola 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 Theodotion 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 Theodotius to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained in equal authority in the tribunals, and any act which was not included in the sacred deposit might be disregarded by the judge as a purious or obsolete. End of chapter 44 part 2, recording by Adam Ringa. Chapter 44 part 3 of the Decline and Fall of the Roman Empire, volume 4. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Adam Ringa. 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. A clenched 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 the 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 hands as if they still prepared for combat before the tribunal of the preter. He commanded them to produce the object of the dispute. They went, they returned with measured steps, and a claw 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 plaintiff's centipetrations. 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 were 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 preter 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 combine 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 jurist consults was framed according to the rules of prudence and law. The use of their own order and family were permitted to listen. Their children enjoyed the benefit of more private lessons, and the Musian 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 Eleus Pytus, 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 Musius Scaiola was illustrated by three sages of the law. But the perfection of the science was ascribed to Servius Sopitius, their disciple, and the friend of Tully. And the long succession, which shone with equal luster under the Republic and under the Caesars, is finally closed by the respectable characters of Papinian, of Paul, and of Aupian. Their names and the various titles of their productions have been minutely preserved, and the example of Labio 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 400 books are enumerated as the fruit of his retirement. Of the collection of his rival, Capito, the 259th 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 Baraitis 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 illuminous 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 second-seventh century of the city by the alliance of Grecian philosophy. The skyvolas had been taught by use and experience, but Sir Vicious Sulpicious 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 log 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 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 skeptics who refuse to believe and the epicurians 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 at the only teachers who arm and instruct a citizen for the duties of social life. Of these the former 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 learn to live to reason and to die but they imbibed in some degree the prejudices of the sect the love of paradox the perternatious 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 turbatius that he who touches the ear touches the whole body and that he who steals from a heap of corn or a hog's head 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 introduced by their union in the same character. In the composition of the edict a learned preter 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 subtle 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 either enact or execute the laws of the republic and the judges might disregard the authority of the skyvolas themselves which was often overthrown 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 labours accommodated the old system 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 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 preter 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 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 to their disciples and the Roman jurisprudence was divided by the once famous sex of the prokulians and subinians two sages of the law Atius Capito and Antistus Lebiot 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 Lebiot 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 Lebiot was enslaved however by the rigor of his own conclusions and he decided according to the letter of the law same questions which his indulgent competitor resolved with the 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 12 or 14 years this opposition of sentiments was propagated in the writings and lessons of the two founders the schools of Capito and Lebiot 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 of the hands of Pegasus a tibet slave of Domitian while the favoured of the Caesars 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 Salveus Julian insensibly reconciled the victors and the vanquished like the contemporary philosophers the lawyers of the age of the Antedines 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 the name an indulgent edict of the younger Theodosius excused him from the labour of comparing and weighing their arguments five civilians Caeus, Papinian, Paul, Opium 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 in 3 recording by Adam Ringeth chapter 44 part 4 of the decline and fall of the Roman Empire part 4 this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Adam Ringeth 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 intellect of the Ladins was imperfectly studied in the academies of Baraitis 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 theory of professors was assisted by the practice of advocates and magistrates and the whole undertaking was animated by the spirit of Tribonian this extraordinary man the object of so much praise and censure was a native of Sidae 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 and a geric of Justinian and the life of the philosopher Theodotus the nature of happiness and the duties of government Homer's catalogue and the foreign 20 sorts of meter 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 Ladintang the Roman civilians were deposited in his library and in his mind he wrote a book which opened the road of wealth and preferment from the bar of the Praetorium Prefects he raised himself to the honors of questor, of consul and of master of the offices the council of Jerusalem 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 of conversion 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 everyday enacted 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 questor was speedily restored until the hour of his death he possessed above 20 years the favor and confidence of the emperor his passive and dutiful submission had been honored with the praise of Justinian himself his vanity was incapable of discerning how often that submission degenerated into the grossest adulation Tribonian adored the virtues 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 if Caesar had achieved the reformation of the Roman law a native 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 for the aid of time and opinion and his laborious compilations are guarded by the sages and legislatures of past times in a simple mode 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 Theodotion codes to purge the errors and contradictions of 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 14 months and the 12 books or tables which the new December's 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 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 17 lawyers with Tribonian at their head exercised an absolute jurisdiction over the works of their predecessors if they had obeyed his commands in 10 years Justin would have been satisfied with their diligence and the rapid composition of the digest of pandex in 3 years will deserve the praise or censure according to the merit of the execution from the library of Tribonian they chose 40 the most eminent civilians of former times 2,000 treatises were comprised in an abridgment of 50 books and it has been carefully recorded that 3 millions of lines or sentences were reduced in this abstract to the moderate number of 150,000 the addition of this great work was delayed a month after that of the institutes and it seemed reasonable that the elements should proceed the digest of the Roman law as soon as the emperor had approved their labors of these private citizens their commentaries on the 12 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 pandex and the institutes were declared to be the legitimate system of civil jurisprudence they alone were admitted into the tribunals of the enemies of Rome Constantinople and Baraitus Justinian addressed to the senate in 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 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's 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 the Edocious had been abolished by the consent of mankind but the jurisprudence of the pandex 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 that has been fiercely urged was fearful of encountering the kingdom and the gravity of Roman sages Trebonian condemned to oblivion the genuine and native wisdom of Cato the Skyvolas and Sulpicious 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 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 or 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 Arcander would acknowledge that except in purity of language their intrinsic merit was excelled by the school of Popinian 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 sex the choice of the authorities that composed the pandex depended on the judgement 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 repel the acts of the Antonines or condemn as seditious the free principles which were maintained by the last of the Roman lawyers 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 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 pretense of uniformity but their cares have been insufficient and the antinomies or contradictions of the code in pandex still exercise the patience and subtlety of modern civilians a rumour 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 pandex from the vain persuasion 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 labour 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 folds their present value 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 missiles, homilies and the golden legend 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 360 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 the copies of Papinian or Alpian which the reformer had proscribed were deemed unworthy of future notice the 12 tables in Praetorian edicts insensibly vanished and the monuments of ancient Rome were neglected or destroyed by the envy and ignorance even the pandex themselves have escaped with difficulty and danger from the common shipwreck and criticism has pronounced that all the additions and manuscripts of the west are derived from one original it was transcribed at Constantinople in the beginning of the 7th century was successfully transported by the accidents of war and commerce to Amalfi, Pisa and Florence and is now deposited as a sacred relic in the ancient palace of the republic is the first care of a reformer to prevent any future reformation to maintain the text of the pandex 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 Curseus of Bartolus 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 Diomedi of transmuting brass into gold discover the necessity of purifying his gold from the mixture of base or alloy six years had not elapsed from the publication of the code 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 has been admitted into the authentic body of the civil jurisprudence and 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 the charge of the secret historian is indeed explicit envioment 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 Amisa 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 defense was overruled by the 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 if Cantor will acquit the emperor himself and transfer the corruption to his wife and favorites the suspicion of so foul avice must still degrade the majesty of his laws and the advocates of Justinian may acknowledge that such levity is not worthy of a legislator and a man monarch 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 those of Chaius 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 encrusted with the coarser materials of a degenerate age the same volume which introduced the youth of Rome, Constantinople and Baraitis to the gradual study of the code and pandex 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 one persons to two things and from things to three actions and the article four of private wrongs is terminated by the principles of criminal law end of chapter 44 part four recording by Adam Ringeth chapter 44 part five of the decline and fall of the Roman Empire volume four this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Adam Ringeth 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 50,000 nobles 200 families supply in lineal descent the second branch of English legislature which maintains between the king and the 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 aristocracy 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 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 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 once been entitled to assume over the conquests of his fathers the first Caesar's had scrupulously guarded the distinction of ingenuous and servile birth 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 freed men 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 without a testament Justinian respected the rights of patrons but his indulgence removed the badge of disgrace from the two inferior orders of freed men 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 emperor whatever restraints of age or forms or numbers had been formally 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 even to 70 pieces of gold was determined by their age their strength and their education 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 bondsmen the law of nature instructs most animals to cherish and educate their infant progeny 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 and seems to be co-evil with the foundation of the city 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 December's 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 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 and if either had been guilty of a trespass he 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 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 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 like 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 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 could exempt the most illustrious citizen from the bonds of filial subjection 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 it succeeded in its turn to the awful dignity of parent and master 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 laden and tusken neighbors 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 conquest of the republic an imperfect right of property was at length communicated to sons and the threefold distinction of perfectitious adventitious and professional was ascertained by the jurisprudence of the code and pandex of all that proceeded from the father to the use and reserved the absolute dominion yet if his goods were sold the filial portion was accepted by a favorable interpretation from the demands of the creditors and 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 use effect during his life as a just and prudent reward of military virtue 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 who was slowed 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 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 parasite by the domestic tribunal 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 stepmother 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 his son without incurring the guilt and punishment of murder and the pains of parasite from which he had been accepted by the Pompeian law were finally inflicted by the justice of Constantine 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 his newborn 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 practiced 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 within difference a popular custom which was palliated by the motives of the economy and compassion 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 were sufficient to eradicate this inhuman practice till their gentle influence was fortified by the terrors of capital punishment experiences 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 to educate to his will a pure and obedient virgin 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 sheepskin bar or rice and this confariation 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 a stone on the mother of a family the strange characters of sister to her own children and of daughter to her husband or master who is 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 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 but as polygamy was unknown he could never admit to his bed a fairer or a more favoured partner after the Punic triumphs the matrons of Rome aspire 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 they declined the solemnities of the old nuptials defeated the annual prescription by an absence of three days and without losing their name subscribe the liberal and definite term of a marriage contract of their private fortunes they communicated the use and secured the property these states of a wife could either 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 a 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 and the cannons of general or provincial synods and the conscience of 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 pandex is directed by the earthly motives of justice, policy and the natural freedom of both sexes 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 disillusion of matrimony have varied among the romans but the most solemn sacrament the confariation 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 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 500 years 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 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 proditious 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 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 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 viri placa the appeaser of husbands too clearly indicates on which side submission and repentance were always expected every act of a citizen the first to use the privilege of divorce assigned at their command the motives of his conduct and a senator was expelled for dismissing his virgin spouse without the knowledge or advice of his friends whenever an action was instituted for the recovery of a marriage portion the preter as the guardian of equity examined the cause and characters and gently inclined the scale in favor of the guiltless who united the powers of both magistrates adopted their different modes of repressing or chastising the license of divorce the presence of seven Roman witnesses was required for the validity of this solemn and deliberate act if any adequate provocation had been given by the husband instead of the delay of two years he was compelled to refund immediately or in the space of six months but if he could arraign the manners of his wife was expiated by the loss of the sixth or eighth part of her marriage portion the Christian princes were the first to specify the just causes of a private divorce their institutions from Constantine to Justinian appear to fluctuate between the custom of the empire and the wishes of the church and the author of the novels too frequently reforms the jurisprudence of the code and pandex 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 by 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 were tailed 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 accepting the bodkin of her hair if the man introduced a new bride into his bed her fortune might be lawfully seized by the vengeance of his exiled wife forfeiture was sometimes commuted to a fine the fine was sometimes aggravated by transportation to an island or imprisonment in a monastery the injured party was released from the bonds of marriage but the offender during life or a term of years was disabled from the repetition of nuptials the successor of Justinian yielded to the prayers of his unhappy subjects and restored the liberty of divorce by mutual consent the civilians were unanimous the theologians were divided and the ambiguous word which contains the precept of Christ is flexible to any interpretation that the wisdom of a legislator can demand the freedom of love and marriage was restrained among the Romans by natural and civil impediments an instinct almost innate and universal appears to prohibit the incestuous commerce of parents and children in the infinite series of ascending and descending generations concerning the oblique and collateral branches nature is indifferent reason, mute and custom various and arbitrary in Egypt the marriage of brothers and sisters was admitted without scruple or exception a spartan might espouse the daughter of his father an Athenian doubt of his mother and the nuptials of an uncle with his niece were applauded at Athens as a happy union of the dearest relations the profane law givers of Rome were never tempted by interest or superstition to multiply the forbidden degrees but they inflexibly condemned the marriage of sisters and brothers hesitated whether first cousins should be touched by the same interdict revered the parental character of aunts and uncles and treated affinity and adoption as a just imitation of the ties of blood according to the proud maxim 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 at the name of stranger degraded Cleopatra and Baranis to live the concubines of Mark Antony and Titus this appellation indeed so injurious to the majesty could not without indulgence be applied to the manners of those orient queens a concubine in the strict sense of the civilians was a woman of servile or plebeian extraction the soul 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 10th 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 antonynes the best of princes and of men enjoyed the comforts of domestic life the example was imitated by many citizens impatient of celibacy but regardless of their families if at any time they desired to legitimate their natural children a 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 elements 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 end of chapter 44 part 5 recording by Adam Ringen