 Chapter 44 Part 6 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. The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the institutes and pandex, is of a very simple and uniform nature. The person and property of an orphan must always be trusted to the custody of some discreet friend. If the deceased father had not signified his choice, the agnits, or paternal kindred of the nearest degree, were compelled to act as the natural guardians. The Athenians were apprehensive of exposing the infant to the power of those most interested in his death, but an axiom of Roman jurisprudence has pronounced that the charge of tutelage should constantly attend the emolument of succession. If the choice of the father, and the line of consanguinity afforded no efficient guardian, the failure was supplied by the nomination of the preter of the city, or the president of the province. By the person whom they named this public office might be legally excused by insanity or blindness, by ignorance or inability, by previous enmity or adverse interest, by the number of children or guardianships with which he was already burdened, and by the immunities which were granted to the useful labors of magistrates, lawyers, physicians, and professors. Till the infant could speak and think, he was represented by the tutor, whose authority was finally determined by the age of puberty. Without his consent, no act of the pupil could bind himself to his own prejudice, though it might oblige others for his personal benefit. It is needless to observe that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. The age of puberty had been rashly fixed by the civilians at fourteen, but as the faculties of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of a Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the preter to save a family from the blind havoc of a prodigal or madman, and the miner was compelled by the laws to solicit the same protection to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians. A sex created to please and obey was never supposed to have attained the age of reason and experience. Such at least was the stern and haughty spirit of the ancient law, which had been insensibly mollified before the time of Justinian. The original right of property can only be justified by the accident or merit of prior occupancy. And on this foundation it is wisely established by the philosophy of the civilians. The savage who hollows a tree, inserts a sharp stone into a wooden handle, or applies a string to an elastic branch, becomes in a state of nature the just proprietor of the canoe, the bow, or the hatchet. The materials were common to all. The new form, the produce of his time and simple industry, belongs solely to himself. His hungry brethren cannot, without a sense of their own injustice, extort from the hunter the game of the forest overtaken, or slain by his personal strength and dexterity. If his provident care preserves and multiplies the tame animals, whose nature is tractable to the arts of education, he acquires a perpetual title to the use and service of their numerous progeny, which derives its existence from him alone. If he encloses and cultivates a field for their sustenance in his own, a barren waste is converted into a fertile soil. The seed, the manure, the labor, create a new value, and the rewards of harvest are painfully earned by the fatigue of the revolving year. In the successive states of society, the hunter, the shepherd, the husbandman, may defend their possessions by two reasons which forcibly appeal to the feelings of the human mind. That whatever they enjoy is their fruit of their own industry, and that every man who envies their felicity may purchase similar acquisitions by the exercise of similar diligence. Such in truth may be the freedom and plenty of a small colony cast on a fruitful island. But the colony multiplies, while the space still continues the same. The common rites, the equal inheritance of mankind, are engrossed by the bold and crafty. Each field and forest is circumscribed by the landmarks of a jealous master, and it is the peculiar praise of the Roman jurisprudence that it asserts the claims of the first occupant to the wild animals of the earth, the air, and the waters. In the progress from primitive equity to final injustice, the steps are silent, the shades are almost imperceptible, and the absolute monopoly is guarded by positive laws and artificial reason. The active insatiate principle of self-love can alone supply the arts of life and wages of industry, and as soon as civil government and exclusive property have been introduced, they become necessary to the existence of the human race. Except in the singular institutions of Sparta, the wisest legislators have disapproved an agrarian law as a false and dangerous innovation. Among the Romans, the enormous disproportion of wealth surmounted the ideal restraints of a doubtful tradition and an obsolete statute, a tradition that the poorest followers of Romulus had been endowed with the perpetual inheritance of two Eugera, a statue which confined the richest citizen to the measure of 500 Eugera or 312 acres of land. The original territory of Rome consisted only of some miles of wood and meadow along the banks of the Tiber, and domestic exchange could add nothing to the national stock. The goods of an alien, or enemy, were lawfully exposed to the first hostile occupier. The city was enriched by the profitable trade of war, and the blood of her sons was the only price that was paid for the Valskian sheep, the slaves of Britain, or the gems and gold of Asiatic kingdoms. In the language of ancient jurisprudence, which was corrupted and forgotten before the age of Justinian, these spoils were distinguished from the name of Mankeps, or Mancipium, taken with a hand, and whenever they were sold, or emancipated, the purchaser required some assurance that they had been the property of an enemy and not of a fellow citizen. A citizen could only forfeit his rights by apparent dereliction, and such dereliction of a valuable interest could not easily be presumed. Yet, according to the twelve tables, a prescription of one year for movables and of two for immovables abolished the claim of the ancient master if the actual possessor had acquired them by a fair transaction from the person whom he believed to be the lawful proprietor. Such conscientious injustice, without any mixture of fraud or force, could seldom injure the members of a small republic. But the various periods of three, of ten, or of twenty years determined by Justinian are more suitable to the latitude of a great empire. It is only in the terms of prescription that the distinction of real and personal fortune has been remarked by the civilians, and their general idea of property is that of simple, uniform, and absolute dominion. The subordinate exceptions of use, of usufruct, of servitude, imposed for the benefit of a neighbour on lands and houses, are abundantly explained by the professors of jurisprudence. The claims of property, as far as they are altered by the mixture, the division, or the transformation of substances, are investigated with metaphysical subtlety by the same civilians. The personal title of the first proprietor must be determined by his death. But the possession, without any appearance of change, is peaceably continued in his children, the associates of his toil and the partners of his wealth. This natural inheritance has been protected by the legislators of every climate and age, and the father is encouraged to persevere in slow and distant improvements by the tender hope that a long posterity will enjoy the fruits of his labour. The principle of hereditary succession is universal, but the order has been variously established by convenience or caprice, by the spirit of national institutions, or by some partial example which was originally decided by fraud or violence. The jurisprudence of the Romans appears to have deviated from the inequality of nature much less than the Jewish, the Athenian, or the English institutions. From the death of a citizen, all his descendants, unless they were already freed from his paternal power, were called to the inheritance of his possessions. The insolent prerogative of primogeniture was unknown. The two sexes were placed on a just level. All the sons and daughters were entitled to an equal portion of the patrimonial estate, and if any of the sons had been intercepted by a premature death, his person was represented and his share was divided by his surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The degrees of kindred are numbered by the civilians, ascending from the last possessor to a common parent, and descending from the common parent to the next heir. My father stands in the first degree, my brother in the second, his children in the third, and the remainder of the series may be conceived by a fancy or pictured in a genealogical table. In this computation a distinction was made, essential to the laws and even the constitution of Rome. The agnits, or persons connected by a line of males, were called, as they stood in the nearest degree, to an equal partition, but a female was incapable of transmitting any legal claims, and the cognates of every rank, without accepting the dear relation of a mother and a son, were disinherited by the twelve tables as strangers and aliens. Among the Romans, a Genes, or lineage, was united by a common name and domestic rights. The various cognamans, or surnames, of Scipio or Markelus, distinguished from each other the subordinate branches or families of the Cornelian or Claudian race. The default of the agnits, of the same surname, was supplied by the larger denomination of Gentiles, and the vigilance of the laws maintained, in the same name, the perpetual descent of religion and property. A similar principle dictated the Volconian law, which abolished the right of female inheritance. As long as virgins were given or sold in marriage, the adoption of the wife extinguished the hopes of the daughter. But the equal succession of independent matrons supported their pride and luxury, and might transport into a foreign house the riches of their fathers. While the maxims of Cato were revered, they tended to perpetuate in each family a just and virtuous mediocrity, till female blanchements insensibly triumphed, and every salutary restraint was lost in the disillusioned greatness of the Republic. The rigor of the December's was tempered by the equity of the preters. Their edicts restored and emancipated posthumous children to the rights of nature, and upon the failure of the agnits they preferred the blood of the cognates to the name of the Gentiles, whose title and character were insensibly covered with oblivion. The reciprocal inheritance of mothers and sons was established in the Turtullian and Arthitian Decrees by the Humanity of the Senate. A new and more impartial order was introduced by the novels of Justinian, who affected to revive the jurisprudence of the twelve tables. The lines of masculine and female kindred were confounded, the descending, ascending and collateral series was accurately defined, and each degree, according to the proximity of blood and affection, succeeded to the vacant possessions of the Roman citizen. The order of succession is regulated by nature, or at least by the general and permanent reason of the lawgiver, but this order is frequently violated by the arbitrary and partial wills which prolong the dominion of the testate or beyond the grave. In the simple state of society, this last use or abuse of the right of property is seldom indulged. It was introduced at Athens by the laws of Solon, and the private testaments of the fathers of a family are authorized by the twelve tables. Before the time of the December's, a Roman citizen exposed his wishes and motives to the assembly of the thirty curiae or parishes, and the general law of inheritance was suspended by an occasional act of the legislature. After the permission of the December's, each private lawgiver promulgated his verbal or written testament in the presence of five citizens who represented the five classes of the Roman people. A sixth witness attested their concurrence, a seventh weighed the copper money which was paid by an imaginary purchaser, and the estate was emancipated by a fictitious sale and immediate release. This singular ceremony, which excited the wonder of the Greeks, was still practiced in the age of Severus, but the preachers had already approved a more simple testament, for which they required the seals and signatures of seven witnesses, free from all legal exception, and purposely summoned for the execution of that important act. A domestic monarch, who reigned over the lives and fortunes of his children, might distribute their respective shares according to the degrees of their merit or his affection. His arbitrary displeasure chastised an unworthy son by the loss of his inheritance, and the mortifying preference of a stranger. But the experience of unnatural parents recommended some limitations of their testamentary powers. A son, or by the laws of Justinian even a daughter, could no longer be disinherited by their silence. They were compelled to name the criminal and specify the offence, and the justice of the emperor enumerated the sole causes that could justify such a violation of the first principles of nature and society. Unless a legitimate portion, a fourth part, had been reserved for the children, they were entitled to institute an action or complaint of inofficious testament. To suppose that their father's understanding was impaired by sickness or age, and respectfully to appeal from his rigorous sentence to the deliberate mid-wisdom of the magistrate. In the Roman Jurisprudence, an essential distinction was admitted between the inheritance and the legacies. The heirs who succeeded to the entire unity, or to any of the twelve fractions of the substance of the testator, represented his civil and religious character, asserted his rights, fulfilled his obligations, and discharged the gifts of friendship or liberality which his last will had bequeathed under the name of legacies. But as the imprudence or prodigality of a dying man might exhaust the inheritance and leave only risk and labor to his successor, he was empowered to retain the Falkidian portion, to deduct, before the payment of the legacies, a clear fourth for his own emolument. A reasonable time was allowed to examine the proportion between the debts and the estate to decide whether he should accept or refuse the testament, and if he used the benefit of an inventory, the demands of the creditors could not exceed the valuation of the effects. The last will of a citizen might be altered during his life, or rescinded after his death. The persons whom he named might die before him, or reject the inheritance, or be exposed to some legal disqualification. In the contemplation of these events, he was permitted to substitute second and third heirs, to replace each other according to the order of the testament, and the incapacity of a madman or an infant to bequeath his property might be supplied by a similar substitution. But the power of the testator expired with the acceptance of the testament. Each Roman of mature age and discretion acquired the absolute dominion of his inheritance, and the simplicity of the civil law was never clouded by the long and intricate end tales which confine the happiness and freedom of unborn generations. Conquest, and the formalities of law, established the use of codicils. If a Roman was surprised by death in a remote province of the empire, he addressed a short epistle to his legitimate or testamentary heir, who fulfilled with honour or neglected with impunity this last request, which the judges before the age of Augustus were not authorised to enforce. A codicil might be expressed in any mode or in any language, but the subscription of five witnesses must declare that it was the genuine composition of the author. His intention, however laudable, was sometimes illegal, and the invention of fidei komisa, or trusts, arose from the struggle between natural justice and positive jurisprudence. A stranger of Greece or Africa might be the friend or benefactor of a childless Roman, but none, except a fellow citizen, could act as his heir. The Volconian law, which abolished female succession, restrained the legacy or inheritance of a woman to the sum of 100,000 cesterces, and an only daughter was condemned almost as an alien in her father's house. The zeal of friendship and parental affection suggested a liberal artifice. A qualified citizen was named in the testament, with a prayer or injunction that he would restore the inheritance to the person for whom it was truly intended. Various was the conduct of the trustees in this painful situation. They had sworn to observe the laws of their country, but honour prompted them to violate their oath, and if they preferred their interest under the mask of patriotism, they forfeited the esteem of every virtuous mind. The declaration of Augustus relieved their doubts, gave a legal sanction to confidential testaments and codicils, and gently unraveled the forms and restraints of the republican jurisprudence. But as the new practice of trusts degenerated into some abuse, the trustee was enabled by the Trebellion and Pegasian decrees to reserve one-fourth of the estate, or to transfer on the head of the real heir all the debts and actions of the succession. The interpretation of testaments was strict and literal, but the language of trusts and codicils was delivered from the minute and technical accuracy of the civilians. The general duties of mankind are imposed by their public and private relations, but their specific obligations to each other can only be the effect of one, a promise, two, a benefit, or three, an injury, and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice. End of Chapter 44, Part 6, Recording by Adam Ringeth. Chapter 44, Part 7 of the Decline and Fall of the Roman Empire, Volume 4. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Adam Ringeth. The goddess of faith, of human and social faith, was worshipped not only in her temples, but in the lives of the Romans. And if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burdensome engagements. Yet among the same people, according to the rigid maxims of the patricians in December's, a naked pact, a promise, or even an oath, did not create any civil obligation unless it was confirmed by the legal form of a stipulation. Whatever might be the etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? Was the solemn interrogation of Seas? I do promise, was the reply of Sempronius. The friends of Sempronius, who answered for his ability and inclination, might be separately sued at the option of Seas, and the benefit of partition, or order of reciprocal actions, insensibly deviated from the strict theory of stipulation. The most cautious and deliberate consent was justly required to sustain the validity of a gratuitous promise, and the citizen who might have obtained a legal security incurred the suspicion of fraud and paid the forfeit of his neglect. But the ingenuity of the civilians successfully labored to convert simple engagements into the forms of solemn stipulations. The preters, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act which in their tribunal produced an equitable obligation and for which they gave an action and a remedy. The obligations of the second class, as they were contracted by the delivery of a thing, are marked by the civilians with the epithet of real. A grateful return is due to the author of a benefit, and whoever is entrusted with the property of another has bound himself to the sacred duty of restitution. In the case of a friendly loan, the merit of generosity is on the side of the lender only. In a deposit, on the side of the receiver, but in a pledge, and the rest of the selfish commerce of ordinary life, the benefit is compensated by an equivalent, and the obligation to restore is variously modified by the nature of the transaction. The Latin language very happily expresses the fundamental difference between the Commodatum and the Mutuum, which are poverty is reduced to confound under the vague and common appellation of a loan. In the former, the borrower was obliged to restore the same individual thing which he had been accommodated for the temporary supply of his wants. In the latter, it was destined for his use and consumption, and he discharged this mutual engagement by substituting the same specific value according to a just estimation of number, of weight, and of measure. In the contract of sale, the absolute dominion is transferred to the purchaser, and he repays the benefit with an adequate sum of gold or silver, the price and universal standard of all earthly possessions. The obligation of another contract, that of location, is of a more complicated kind. Lands or houses, labor or talents may be hired for a definite term. At the expiration of the time, the thing itself must be restored to the owner with an additional reward for the beneficial occupation and employment. In these lucrative contracts, to which may be added those of partnership and commissions, the civilians sometimes imagine the delivery of the object and sometimes presume the consent of the parties. The substantial pledge has been refined into the invisible rights of a mortgage or hypotheca, and the agreement of sale for a certain price imputes from that moment the chances of gain or loss to the account of the purchaser. It may be fairly supposed that every man will obey the dictates of his interest, and if he accepts the benefit, he's obliged to sustain the expense of the transaction. In this boundless subject, the historian will observe the location of land and money, the rent of the one and the interest of the other, as they materially affect the prosperity of agriculture and commerce. The landlord was often obliged to advance the stock and instruments of husbandry, and to content himself with the partition of the fruits. If the feeble tenant was oppressed by accident, contagion or hostile violins, he claimed a proportionable relief from the equity of the laws. Five years were the customary term, and no solid or costly improvements could be expected from a farmer who at each moment might be ejected by the sale of the estate. Usury, the inveterate grievance of the city, had been discouraged by the twelve tables, and abolished by the clamours of the people. It was revived by their wants and idleness, tolerated by the discretion of the preters, and finally determined by the Code of Justinian. Persons of illustrious rank were confined to the moderate profit of 4%. Six was pronounced to be the ordinary and legal standard of interest. Eight was allowed for the convenience of manufacturers and merchants. Twelve was granted to nautical insurance, which the wiser ancients had not attempted to define. But, except in this perilous adventure, the practice of exorbitant usury was severely restrained. The most simple interest was condemned by the clergy of the east and west, but the sense of mutual benefit, which had triumphed over the law of the republic, has resisted with equal firmness the decrees of the church and even the prejudices of mankind. Nature and society imposed the strict obligation of repairing an injury, and the sufferer by private injustice acquires a personal right and a legitimate action. If the property of another be entrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such temporary possession. We are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author. A Roman pursued and recovered his stolen goods by a civil action of theft. They might pass through a succession of pure and innocent hands, but nothing less than a prescription of 30 years could extinguish his original claim. They were restored by the sentence of the preter, and the injury was compensated by double, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open repite, as the robber had been surprised in the fact or detected by a subsequent research. The Aquilian law defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence. The highest price was allowed that could be ascribed to the domestic animal at any moment of the year preceding his death. A similar latitude of 30 days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual. The pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the December's had confounded all hasty insults which did not amount to the fracture of a limb by condemning the aggressor to the common penalty of 25 asses. But the same denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce, and the insolence of a wealthy Roman indulged himself in the cheap amusement of breaking and satisfying the laws of the twelve tables. Varatius ran through the streets striking on the face the inoffensive passengers, and his attendant purse-bearer immediately silenced their clamours by the legal tender of 25 pieces of copper about the value of one shilling. The equity of the preter is examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages, the magistrate assumed a right to consider the various circumstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person. But if he admitted the idea of a thine, a punishment, an example, he invaded the province, though perhaps he supplied the defects, of the criminal law. The execution of the Albin dictator, who is dismembered by eight horses, is represented by Livy as the first and the fast instance of Roman cruelty in the punishment of the most atrocious crimes. But this act of justice or revenge was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The twelve tables afford a more decisive proof of the national spirit, since they were framed by the wisest of the senate and accepted by the free voices of the people. Yet these laws, like the statutes of Draco, are written in characters of blood. They approve the inhuman and unequal principle of retaliation. And the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. Though the December's distributed with much liberality, the slider chest ties meant a flagellation and servitude, and nine crimes of a very different complexion are judged worthy of death. Any act of treason against the state or of correspondence with the public enemy. The mode of execution was painful and ignominious. The head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and after he had been scorched by the lictor, he was suspended in the midst of the forum on a cross or inauspicious tree. Nocturnal meanings in the city, whatever might be the pretense, of pleasure, or religion, or the public good. The murder of a citizen, for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sordor dagger, and we are surprised to discover, in two flegitious events, that early such subtle wickedness had infected the simplicity of the Republic and the chaste virtues of the Roman matrons. The parasite, who violated the duties of nature and gratitude, was cast into the river or the sea, and closed in a sack, and a cock, a viper, a dog, and a monkey were successively added as the most suitable companions. Italy produces no monkeys, but the want could never be felt until the middle of the 6th century first revealed the guilt of a parasite. The malice of an incendiary. After the previous ceremony of whipping, he himself was delivered to the flames, and in this example alone, a reason is tempted to applaud the justice of retaliation. Judicial perjury. The corrupt or malicious witness was thrown headlong from the Tarpean rock to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws and the deficiency of written evidence. The corruption of a judge who accepted bribes to pronounce it iniquitous sentence. Liables and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastisement, but it is not certain that he was left to expire under the blows of the executioner. The doctrinal mischief of damaging or destroying a neighbour's corn. The criminal was suspended as a grateful victim to Ceres, but the Sylvian deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of 25 pounds of copper. Magical incantations, which had power in the opinion of the Latin shepherds to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deep-rooted plantations. The cruelty of the twelve tables against insolvent debtors still remains to be told, and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism. After the judicial proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow citizen. In this private prison, twelve ounces of rice were his daily food. He might be bound with a chain of 15 pounds weight, and his misery was thrice exposed in the marketplace, to solicit the compassion of his friends and countrymen. At the expiration of sixty days, the debt was discharged by the loss of liberty or life. The insolvent debtor was either put to death, or sold in foreign slavery beyond the Tiber. But if several creditors were alike obstinate and unrelenting, they might legally dismember his body and satiate their revenge by this horrid partition. The advocates for this savage law have insisted that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge. But experience would dissipate the salutary terror by proving that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the December's was abolished by the humanity of accusers, witnesses and judges, and impunity became the consequence of a moderate rigor. The Porchean and Valerian laws prohibited the magistrates from inflicting on a free citizen any capital or even corporal punishment, and the absolute statutes of blood were artfully and perhaps truly ascribed to the spirit not of patrician, but of regal tyranny. In the absence of penal laws and the insufficiency of civil actions, the peace and justice of the city were imperfectly maintained by the private jurisdiction of the citizens. The malefactors who replenish our jails are the outcasts of society, and the crimes for which they suffer may be commonly ascribed to ignorance, poverty and brutal appetite. For the perpetration of similar enormities, a vile plebeian might claim and abuse the sacred character of a member of the republic, but on the proof or suspicion of guilt, the slave or the stranger was nailed to a cross, and this strict and summary judgment might be exercised without restraint over the greatest part of the populace of Rome. Each family contained a domestic tribunal, which was not confined, like that of the preter, to the cognizance of external actions. Virtuous principles and habits were inculcated by the discipline of education, and the Roman father was accountable to the state for the manners of his children since he disposed, without appeal of their life, their liberty and their inheritance. In some pressing emergencies the citizen was authorized to avenge his private or public wrongs. The consent of the Jewish, the Athenian and the Roman laws approved the slaughter of the nocturnal thief, though in open daylight a robber could not be slain without some previous evidence of danger and complaint. Whoever surprised an adulterer in his nuptial bed might freely exercise his revenge. The most bloody and wanton outrage was excused by the provocation. Nor was it before the reign of Augustus that the husband was reduced to weigh the rank of the offender or that the parent was condemned to sacrifice his daughter with her guilty seducer. After the expulsion of the kings the ambitious Roman, who should dare to assume their title or imitate their tyranny, was devoted to the infernal gods. Each of his fellow citizens was armed with the sword of justice, and the act of brutus, however repugnant to gratitude or prudence had been already sanctified by the judgment of his country. The barbarous practice of wearing arms in the midst of peace and the bloody maxims of honour were unknown to the Romans. And during the two purist ages from the establishment of equal freedom to the end of the Punic wars the city was never disturbed by sedition and rarely polluted with atrocious crimes. The failure of penal laws was more sensibly felt when every vice was inflamed by faction at home and dominion abroad. In the time of Cicero each private citizen enjoyed the privilege of anarchy. Each minister of the Republic was exalted to the temptations of regal power and their virtues are entitled to the warmest praise as the spontaneous fruits of nature or philosophy. After a triannual indulgence of lust, rapine and cruelty Verus, the tyrant of Sicily could only be sued for the pecuniary restitution of 300,000 pounds sterling and such was the temper of the laws, the judges and perhaps the accuser himself that on refunding a 13th part of his plunder, Verus could retire to an easy and luxurious exile. The first imperfect attempt to restore the proportion of crimes and punishments was made by the dictator Silla who in the midst of his sanguinary triumph aspired to restrain the license rather than to oppress the liberty of the Romans. He gloried in the arbitrary prescription of 4,700 citizens but in the character of a legislator he respected the prejudices of the times. Instead of pronouncing a sentence of death against the robber or assassin the general who betrayed an army or the magistrate who ruined a province Silla was content to aggravate the pecuniary damages by the penalty of exile or in more constitutional language by the interdiction of fire and water. The Cornelian and afterwards the Pompeian and Julian laws introduced a new system of criminal jurisprudence and the emperors from Augustus to Justinian disguised their increasing rigor under the names of the original authors. But the invention and frequent use of extraordinary pains proceeded from the desire to extend and conceal the progress of despotism. In the condemnation of illustrious Romans the senate was always prepared to confound at the will of their masters the judicial and legislative powers. It was the duty of the governors to maintain the peace of their province by the arbitrary and rigid administration of justice. The freedom of the city evaporated in the extent of empire and the Spanish malefactor who claimed the privilege of a Roman was elevated by the command of Galba on a fairer and more lofty cross. Occasional scripts issued from the throne to decide the questions which, by their novelty or importance appeared to surpass the authority and discernment of a proconsul. Transportation and beheading were reserved for honorable persons. Mener criminals were either hanged or burnt or buried in the mines or exposed to the wild beasts of the amphitheater. Armed robbers were pursued and extirpated as the enemies of society. The driving away horses or cattle was made a capital offence. But simple theft was uniformly considered as a mere civil and private injury. The degrees of guilt and the modes of punishment were too often determined by the discretion of the rulers and the subject was left in ignorance of the legal danger which he might incur by every action of his life. A sin, a vice, a crime are the objects of theology, ethics and jurisprudence. Whenever their judgments agree they corroborate each other but as often as they differ a prudent legislator appreciates the guilt and punishment according to the measure of social injury. On this principle the most daring attack on the life and property of a private citizen is judged less atrocious than the crime of treason or rebellion which invades the majesty of the Republic. The obsequious civilians unanimously pronounced that the Republic is contained in the person of its chief and the edge of the Julian law was sharpened by the incessant diligence of the emperors. The licentious commerce of the sexes may be tolerated as an impulse of nature or forbidden as a source of disorder and corruption but the fame, the fortunes the family of the husband are seriously injured by the adultery of the wife. The wisdom of Augustus after curbing the freedom of revenge applied to this domestic offense the animate version of the laws and the guilty parties after the payment of heavy forfeitures and fines were condemned to long or perpetual exile in two separate islands. Religion pronounces an equal censure against the infidelity of the husband but as it is not accompanied by the same civil effects the wife was never permitted to vindicate her wrongs and the distinction of simple or double adultery so familiar and so important in the canon law is unknown to the jurisprudence of the code of sex. I touch with reluctance and dispatch with impatience a more odious vice of which modesty rejects the name and nature abominates the idea. The primitive Romans were infected by the example of the Etruscans and Greeks and in the mad abuse of prosperity and power every pleasure that is innocent was deemed insipid and the scotinian law which had been extorted by an act of violence was insensibly abolished by the lapse of time and the multitude of criminals by this law the rape perhaps the seduction of an ingenuous youth was compensated as a personal injury by the poor damages of 10,000 cesterces or four score pounds the ravisher might be slain by the resistance or revenge of chastity and I wish to believe that at Rome as in Athens the voluntary and effeminate deserter of his sex was degraded from the honors and the rights of a citizen but the practice of vice was not discouraged by the severity of opinion the indelible stain of manhood was confounded with the more venial transgressions of fornication and adultery nor was the licentious lover exposed to the same dishonor which he impressed on the male or female partner of his guilt from Catullus to Juvenile the poets accuse and celebrate the degeneracy of the times and the reformation of manners was feebly attempted by the reason and authority of the civilians till the most virtuous of the caesars proscribed the sin against nature as a crime against society end of chapter 44 part 7 recording by Adam Ringuth chapter 44 part 8 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 a new spirit of legislation respectable even in its error arose in the empire with the religion of Constantine the laws of Moses were received as the divine original of justice the Christian princes adapted their penal statutes to the degrees of moral and religious turpitude adultery was first declared to be a capital offense the frailty of the sexes was assimilated to poison or assassination to sorcery or parasite the same penalties were inflicted on the passive and active guilt of pederasty and all criminals of free or servile condition were beheaded or cast alive into the avenging flames the adulterers were spared by the common sympathy of mankind but the lovers of their own sex were pursued by general and pious indignation the impure manners of Greece still prevailed in the cities of Asia and every vice was fomented by the celibacy of the monks and clergy justinian relaxed the punishment at least of female infidelity the guilty spouse was only condemned to solitude and penance and by the end of two years she might be recalled to the arm of a forgiving husband but the same emperor declared himself the implacable enemy of unmanly lust and the cruelty of his persecution can scarcely be excused by the purity of his motives in defiance of every principle of justice he stretched to past as well as future offenses and operations of his edicts with the previous allowance of a short respite for confession and pardon a painful death was inflicted by the amputation of the sinful instrument or the insertion of sharp reeds into the pores and tubes of most exquisite sensibility and justinian defended the propriety of the execution since the criminals would have lost their hands had they been convicted of sacrilege in this state of disgrace and agony two bishops Isaiah of Rhodes and Alexander of Deospolis were dragged through the streets of Constantinople while their brethren were admonished by the voice of a crier to observe this awful lesson and not to pollute the sanctity of their character perhaps these prelates were innocent a sentence of death and infamy was often founded on the slight and suspicious evidence of a child or a servant the guilt of the green faction of the rich and of the enemies of Theodora was presumed by the judges and pedorasty became the crime of those to whom no crime could be imputed a french philosopher has dared to remark that whatever is secret must be doubtful and that our natural horror of vice may be abused as an engine of tyranny but the favorable persuasion of the same writer that a legislator may confide in the taste and reason of mankind is impeached by the unwelcome discovery of the antiquity and extent of the disease the free citizens of Athens and Rome enjoyed, in all criminal cases the invaluable privilege of being tried by their country the administration of justice is the most ancient office of a prince who is exercised by the Roman kings and abused by Tarquin who alone, without law or council pronounced his arbitrary judgments the first consuls succeeded to this regal prerogative but the sacred right of appeal soon abolished the jurisdiction of the magistrates and all public causes were decided by the supreme tribunal of the people but a wild democracy superior to the forums too often disdains the essential principles of justice the pride of despotism was invented by plebeian envy and the heroes of Athens sometimes applaud the happiness of the Persian whose fate depended on the caprice of a single tyrant some salutary restraints imposed by the people or their own passions were at once the cause and effect of the gravity and temperance of the Romans the right of accusation was confined to the magistrates a vote of the 35 tribes could inflict a fine but the cognizance of all capital crimes was reserved by a fundamental law to the assembly of the centuries in which the weight of influence and property was sure to preponderate repeated proclamations and adjournments were interposed to allow time for prejudice and resentment to subside the whole proceeding might be annulled by a seasonable omen or the opposition of a tribune and such popular trials were commonly less formidable to innocence than they were favorable to guilt but this union of the judicial and legislative powers left it doubtful whether the accused party were pardoned or acquitted and in the defence of an illustrious client the orators of Rome and Athens addressed their arguments to the policy and benevolence as well as to the justice of their sovereign the task of convening the citizens for the trial of each offender became more difficult as the citizens and the offenders continually multiplied and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates or to extraordinary inquisitors in the first ages these questions were rare and occasional in the beginning of the 7th century of Rome they were made perpetual 4 praetors were annually empowered to sit in judgement on the state offences of treason, extortion, peculation and bribery and Silla added new praetors and new questions for those crimes which more directly injure the safety of individuals by these inquisitors the trial was prepared and directed but they could only pronounce the sentence of the majority of judges who with some truth and more prejudice had been compared to the English juries to discharge this important though burdensome office an annual list of ancient and respectable citizens was formed by the praetor after many constitutional struggles they were chosen in equal numbers from the senate, the equestrian order and the people 450 were appointed for single questions the various roles or decuries of judges must have contained the names of some thousand Romans who represented the judicial authority of the state in each particular cause a sufficient number was drawn from the urn their integrity was guarded by an oath the mode of ballot secured their independence the suspicion of partiality was removed by the mutual challenges of the accuser and defendant and the judges of Milo by the retrenchment of 15 on each side were reduced to 51 voices or tablets of acquittal, of condemnation or of favorable doubt in his civil jurisdiction the praetor of the city was truly a judge almost a legislator but as soon as he had prescribed the action of law he often referred to a delicate the determination of the fact with the increase of legal proceedings the tribunal of the centumvers in which he presided acquired more weight and reputation but whether he acted alone or with the advice of his council the most absolute powers might be trusted to magistrate who is annually chosen by the votes of the people the rules and precautions of freedom have required some explanation the order of despotism is simple and inanimate before the age of Justinian or perhaps of Diocletian the decuries of Roman judges had sunk to an empty title the humble advice of the assessors might be accepted or despised and in each tribunal the civil and criminal jurisdiction was administered by a single magistrate who was raised and disgraced by the will of the emperor a Roman accused of any capital crime might prevent the sentence of the law by voluntary exile or death till his guilt had been legally proved his innocence was presumed his person was free till the votes of the last century had been counted and declared he might peaceably secede to any of the allied cities of Italy or Greece or Asia his fame and fortunes were preserved at least to his children by this civil death and he might still be happy in every rational and sensual enjoyment if a mind accustomed to the ambitious tumult of Rome could support the uniformity and silence of Rhodes or Athens a bolder effort was required to escape from the tyranny of the Caesars but this effort was rendered familiar by the maxims of the Stoics the example of the bravest Romans and the legal encouragements of suicide the bodies of condemned criminals were exposed to public ignominy and their children a more serious evil were reduced to poverty by the confiscation of their fortunes but if the victims of Tiberius and Nero anticipated the decree of the Prince or Senate their courage and dispatch were recompensed by the applause of the public the decent honours of burial and the validity of their testaments the exquisite avarice and cruelty of Domitian appeared to have deprived the unfortunate of this last consolation and it was still denied even by the clemency of the Antonines a voluntary death which, in the case of a capital offence intervened between the accusation and the sentence was admitted as a confession of guilt and the spoils of the deceased were seized by the inhuman claims of the treasury yet the civilians have always respected the natural right of a citizen to dispose of his life and the posthumous disgrace invented by Tarquin to check the despair of his subjects was never revived or imitated by succeeding tyrants the powers of this world have indeed lost their dominion over him who was resolved on death and his arm could only be restrained by the religious apprehension of a future state suicides are enumerated by Virgil among the unfortunate, rather than the guilty and the poetical fables of the infernal shades could not seriously influence the faith or practice of mankind but the precepts of the gospel or the church have at length imposed a pious servitude on the minds of Christians without a murmur the last stroke of disease or the executioner the penal statutes form a very small proportion of the 62 books of the code and pandex and in all judicial proceedings the life or death of a citizen is determined with less caution or delay than the most ordinary question of covenant or inheritance this singular distinction though something may be allowed for the urgent necessity of defending the peace of society is derived from the nature of criminal and civil jurisprudence our duties to the state are simple and uniform the law by which he is condemned is inscribed not only on brass or marble but on the conscience of the offender and his guilt is commonly proved by the testimony of a single fact but our relations to each other are various and infinite our obligations are created annulled and modified by injuries, benefits and promises and the interpretation of voluntary contracts and testaments which are often dictated by fraud or ignorance affords a long and laborious exercise to the sagacity of the judge the business of life is multiplied by the extent of commerce and dominion and the residents of the parties in the distant provinces of an empire is productive of doubt delay and inevitable appeals from the local to the supreme magistrate Justinian the emperor of Constantinople and the east was the legal successor of the Latin shepherd who had planted a colony on the banks of the Tiber in a period of 1300 years the laws had reluctantly followed the changes of government and manners and the laudable desire of conciliating ancient names with recent institutions destroyed the harmony and swelled the magnitude of the obscure and irregular system the laws which excuse on any occasions the ignorance of their subjects confess their own imperfections the civil jurisprudence as it was abridged by Justinian still continued a mysterious science and a profitable trade and the innate perplexity of the study was involved in tenfold darkness by the private industry of the practitioners the expense of the pursuit sometimes exceeded the value of the prize and the fairest rights were abandoned by the poverty or prudence of the claimants such costly justice might tend to abate the spirit of litigation but the unequal pressure serves only to increase the influence of the rich and to aggravate the misery of the poor by these dilatory and expensive proceedings the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge the experience of an abuse from which our own age and country are not perfectly exempt may sometimes provoke a generous indignation and extort the hasty wish of exchanging our elaborate jurisprudence for the simple and summary decrees of a Turkish qadi our calmer reflection will suggest that such forms and delays are necessary to guard the person and property of the citizen that the discretion of the judge is the first engine of tyranny and that the laws of a free people should foresee and determine every question that may probably arise in the exercise of power and the transactions of industry but the government of Justinian united the evils of liberty and servitude and the Romans were oppressed at the same time by the multiplicity of their laws and the arbitrary will of their master end of chapter 44 part 8 and end of chapter 44 recording by Adam Ringeth while LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org The Decline and Fall of the Roman Empire by Edward Gibbon Volume 4 Chapter 45 State of Italy under the Lombards Part 1 Read by Claude Banta Reign of the Younger Justin Embassy of the Avars Their Settlement on the Danube Conquest of Italy by the Lombards Adoption and Reign of Tiberius of Maurice State of Italy under the Lombards and the Exarchs of Ravenna Distress of Rome Character and Pontificate of Gregory I During the last years of Justinian his infirm mind was devoted to heavenly contemplation and he neglected the business of the lower world His subjects were impatient of the long continuance of his life and reign yet all who were capable of reflection apprehended the moment of his death which might involve the capital in Tomalt and the empire in Civil War Seven nephews of the childless monarch the sons or grandsons of his brother and sister had been educated in the splendor of a princely fortune They had been shown in high commands to the provinces and armies Their characters were known their followers were zealous and as the jealousy of age postponed the declaration of a successor they might expect with equal hopes the inheritance of their uncle He expired in his palace after a reign of 38 years and the decisive opportunity was embraced by the friends of Justin the son of Vigilantia At the hour of midnight his domestics were awakened by an important crowd and gathered at his door and obtained admittance by revealing themselves to be the principal members of the senate These welcomed deputies announced the recent and momentous secret of the emperor's decease reported or perhaps invented his dying choice to the best beloved and most deserving of his nephews and conjured Justin to prevent the disorders of the multitude if they should perceive with the return of light after composing his countenance to surprise, sorrow and decent modesty Justin by the advice of his wife Sophia submitted to the authority of the senate he was conducted with speed and silence to the palace the guards saluted their new sovereign and the martial and religious rights of his coronation were diligently accomplished by the hands of the proper officers he was invested with the imperial garments red booskins, white tunic and purple robe a fortunate soldier whom he instantly promoted to the rank of tribune encircled his neck with a military collar four robust youths exalted him on a shield he stood firm and erect to receive the adoration of his subjects and their choice was sanctified by the benediction of the patriarch who imposed the diadem on the head of an orthodox prince the hippodrome was already filled with innumerable multitudes and no sooner did the emperor appear on his throne than the voices of the blue and the green factions were confounded in the same loyal acclamations in the speeches which Justin addressed to the senate and people he promised to correct the abuses which had disgraced the age of his predecessor displayed the maxims of a just and beneficent government and declared that in the approaching callons of january he would revive in his own person the name and liberty of a roman consul the immediate discharge of his uncle's debts exhibited a solid pledge of his faith and generosity the train of porters laden with bags of gold advanced into the midst of the hippodrome and the hopeless creditors of justinian accepted this equitable payment as a voluntary gift before the end of three years an example was imitated and surpassed by the empress sofia who delivered many indigent citizens from the weight of debt and usury an act of benevolence the best entitled to gratitude since it relieves the most intolerable distress but in which the bounty of a prince is the most liable to be abused by the claims of prodigality and fraud on the seventh day of his reign justin gave audience to the ambassadors of the avars and the scene was decorated to impress the barbarians with astonishment veneration and terror from the palace gate the spacious courts and long porticoes were lined with the lofty crests and gilt bucklers of the guards who presented their spears and axes with more confidence than they would have shown in a field of battle the officers who exercised the power or attended the person of the prince were attired in their richest habits and arranged according to the military and civil order of the hierarchy when the veil of the sanctuary was withdrawn the ambassadors beheld the emperor of the east on his throne beneath the canopy or dome which was supported by four columns and crowned with a winged figure of victory in the first emotions of surprise they submitted to the servile adoration of the byvantine court but as soon as they rose from the ground targetius the chief of the embassy expressed his freedom and pride of a barbarian he extolled by the tongue of his interpreter the greatness of the shagan by whose clemency the kingdoms of the south were permitted to exist whose victorious subjects had traversed the frozen rivers of skithia and who now covered the banks of the danube with innumerable tents the late emperor had cultivated with annual and costly gifts the friendship of a grateful monarch and the enemies of Rome had respected the allies of the avars the same prudence would instruct the nephew of justinian to imitate the liberality of his uncle and to purchase the blessings of peace from an invincible people who delighted and excelled in the exercise of war the reply of the emperor was delivered in the same strain and he derived his confidence from the god of the christians the ancient glory of Rome and the recent triumphs of justinian the empire said he abounds with men and horses and arms sufficient to defend our frontiers and to chastise the barbarians you offer aid you threaten hostilities we despise your enmity and your aid the conquerors of the avars solicit our alliance shall we dread their fugitives and exiles the bounty of our uncle was granted to your misery to your humble prayers from us you shall receive a more important obligation the knowledge of your own weakness retire from our presence the lives of ambassadors are safe and if you return to implore our pardon perhaps you will taste of our benevolence on the report of his ambassadors the shagan was awed by the apparent firmness of our Roman emperor of whose character and resources he was ignorant instead of executing his threats against the eastern empire he marched into the poor and savage countries of Germany which were subject to the dominion of the Franks after two doubtful battles he consented to retire and the Austrasian king relieved the distress of his camp with an immediate supply of corn and cattle such repeated disappointments had chilled the spirit of the avars the emperor would have dissolved away in the Sarmatian desert if the alliance of Alboen king of the Lombards had not given a new object to their arms and a lasting settlement to their worried fortunes while Alboen served under his father's standard he encountered in battle and transpierced with his lance the rival prince of the Gepide the Lombards who applauded such early prowess requested his father that the heroic youth who had shared the dangers of the field might be admitted to the Feast of Victory you are not unmindful replied the inflexible Audoen of the wise customs of our ancestors whatever may be his merit a prince is incapable of sitting at table with his father till he has received his arms from a foreign and royal hand Alboen bowed with reverence to the institutions of his country selected forty companions and boldly visited the court of Turasund king of the Gepide who embraced and entertained according to the laws of hospitality the murderer of his son at the banquet whilst Alboen occupied the seat of the youth whom he had slain a tender remembrance arose in the mind of Turasund how dear is that place how hateful is that person were the words that escaped a sigh from the indignant father his grief exasperated the national resentment of the Gepide and Kunamund his surviving son was provoked by wine or fraternal affection to the desire of vengeance Boulombards said the rude barbarian resemble in figure and in smell the mirrors of our formation planes and this insult was a coarse illusion to the white bands which enveloped their legs add another resemblance replied an audacious Lombard you have found how strongly they kick visit the plane of Asfield and seek for the bones of their brother they are mingled with those of the vilest animals the Gepide a nation of warriors started from their seats and the fearless Alboen with his forty companions laid their hands on their swords the tumult was appeased by the venerable interposition of Turasund he saved his own honor and the life of his guest and after the solemn rites of investiture dismissed the stranger in the bloody arms of his son the gift of a weeping parent Alboen returned in triumph and the Lombards who celebrated his matchless intrepidity were compelled to praise the virtues of an enemy in this extraordinary visit he had probably seen the daughter of Kunamund after ascended the throne of the Gepide her name was Rosamond an appellation expressive of female beauty and which our own history or romance has consecrated to amorous tales the king of the Lombards the father of Alboen no longer lived was contracted to the granddaughter of Clovis but the restraints of faith and policy soon yielded to the hope of possessing the fair Rosamond and of insulting her family and nation the arts of persuasion were tried without success and the impatient lover by force and stratagem obtained the object of his desires war was the consequence which he foresaw and solicited but the Lombards could not long withstand the furious assault of the Gepide who were sustained by a Roman army and as the offer of marriage was rejected with contempt Alboen was compelled to relinquish his prey and to partake of the disgrace which he had inflicted on the house of Cunamond when a public quarrel is invented by private injuries a blow that is not mortal or decisive can be productive only of a short truce which allows the unsuccessful combatant to sharpen his arms for a new encounter the strength of Alboen had been found unequal to the gratification of his love ambition and revenge he condescended to implore the formidable aid of the Shagon and the arguments that he employed are expressive of the art and policy of the barbarians in the attack of the Gepide he had been prompted by the just desire of extirpating a people whom their alliance with the Roman Empire had rendered the common enemies of the nations and the personal adversaries of the Shagon if the forces of the Avars and the Lombards should unite in this glorious quarrel the victory was secure and the reward inestimable the Danube, the Hebrus Italy and Constantinople would be exposed without a barrier to their invincible arms but if they hesitated or delayed to prevent the malice of the Romans the same spirit which had insulted would pursue the Avars to the extremity of the earth these specious reasons were heard by the Shagon with coldness and disdain he detained the Lombard ambassadors in his camp protracted the negotiation and by turns alleged his want of inclination or his want of ability to undertake this important enterprise at length he signified the ultimate price of his alliance that the Lombards should immediately present him with the tithe of their cattle that the spoils and captives should be equally divided but that the lands of the Gepide should become the sole patrimony of the Avars such hard conditions were eagerly accepted by the passions of Alboen and as the Romans were dissatisfied with the ingratitude and perfidy of the Gepide just an abandon that incorrigible people to their fate and remained the tranquil spectator of this unequal conflict the despair of Cunamont was active and dangerous he was informed that the Avars had entered his confines with strong assurance that after the defeat of the Lombards these foreign invaders would easily be repelled he rushed forward to encounter the implacable enemy of his name and family but the courage of the Gepide could secure them no more than an honorable death the bravest of the nation fell in the field of battle the king of the Lombards contemplated with the light the head of Cunamont and his skull was fashioned to satiate the hatred of the conqueror or perhaps to comply with the savage custom of his country after the victory no further obstacle could impede the progress of the Confederates and they faithfully executed the terms of their agreement the fair countries of Wallachia Moldavia, Transylvania and the other parts of Hungary beyond the Danube were occupied without resistance by a new colony of Scythians and the Dacian Empire of the Shagan subsisted with splendor above 230 years the nation of the Gepide was dissolved but in the distribution of the captives the slaves of the Avars were less fortunate than the companions of the Lombards whose generosity adopted a valiant foe and whose freedom was incompatible with cool and deliberate tyranny one moiety of the spoil introduced into the camp of Alboan more wealth than a barbarian could readily compute the fair Rosamond was persuaded or compelled to acknowledge the rights of her victorious lover and the daughter of Cunamond appeared to forgive those crimes which might be imputed to her own irresistible charms the destruction of a mighty kingdom established the fame of Alboan in the days of Charlemagne the Bavarians, the Saxons and other tribes of the Teutonic language still repeated the songs which described the heroic virtues the valor, liberality and fortune of the king of the Lombards but his ambition was yet unsatisfied and the conqueror of the Gepide turned his eyes from the Danube to the richer banks of the Poe and the Tiber 15 years had not elapsed since his subjects the Confederates of Narces of Italy the mountains, the rivers the highways were familiar to their memory the report of their success perhaps the view of their spoils had kindled in the rising generation the flame of emulation and enterprise their hopes were encouraged by the spirit and eloquence of Alboan and it is affirmed that he spoke to their senses by producing at the royal feast the fairest and most exquisite fruits through spontaneously in the garden of the world no sooner had he erected his standard than the native strength of the Lombard was multiplied by the adventurous youth of Germany and Schifia the robust peasantry of Noricum and Pannonia had resumed the manners of barbarians and the names of the Gepide Bulgarians Sarmatians and Bavarians may be distinctly traced in the provinces of Italy of the Saxons the old allies of the Lombards 20,000 warriors with their wives and children accepted the invitation of Alboan their bravery contributed to a success but the accession or the absence of their numbers was not sensibly felt in the magnitude of his host every mode of religion was freely practiced by its respective votaries the king of the Lombards had been educated in the air in Hirsi but the Catholics in their public worship were allowed to pray for his conversion while the more stubborn barbarians sacrificed a she-goat or perhaps a captive to the gods of their fathers the Lombards and their Confederates were united by their common attachment to a chief who excelled in all the virtues and vices of a Savichiro and the vigilance of Alboan in the magazine of offensive and defensive arms for the use of the expedition the portable wealth of the Lombards attended the march their lands they cheerfully relinquished to the avars on the solemn promise which was made and accepted without a smile that if they failed in the conquest of Italy these voluntary exiles should be reinstated in their former possessions they might have failed if Narcies had been the antagonist of the Lombards and the veteran warriors the associates of his Gothic victory would have encountered with reluctance an enemy whom they dreaded and esteemed but the weakness of the Byzantine court was subservient to the barbarian cause and it was for the ruin of Italy that the emperor once listened to the complaints of his subjects the virtues of Narcies were stained with avarice and in his provincial reign of 15 years he accumulated a treasure of gold and silver which surpassed the modesty of a private fortune his government was oppressive or unpopular and the general discontent was expressed with freedom by the deputies of Rome before the throne of Justinian they boldly declared that their Gothic servitude had been more tolerable than the despotism of a Greek eunuch and if they were not reprimanded or instantly removed they would consult their own happiness in a choice of a master the apprehension of a revolt was urged by the voice of envy and detraction which had so recently triumphed over the merit of Belisarius a new exarch, Longinus was appointed to supersede the conqueror of Italy and the base motives of his recall were revealed in the insulting mandate of the Empress Sophia she should leave to men the exercise of arms and return to his proper station among the maidens of the palace where a disdain should be again placed in the hands of the eunuch I will spin her such a thread and she shall not easily unravel is said to have been the reply which indignation and conscious virtue extorted from the hero instead of attending a slave and a victim at the gate of the Byzantine palace to Naples from whence if any credit is due to the belief of the times Narces invited the Lombards to chastise the ingratitude of the prince and people but the passions of the people are furious and changeable and the Romans soon recollected that the merits or dreaded the resentment of their victorious general by the mediation of the Pope who undertook a special pilgrimage to Naples their repentance was accepted and the Nazis, assuming a milder aspect and a more dutiful language consented to fix his residence in the capital his death, though in the extreme period of old age was unseasonable and premature since his genius alone could have repaired the last and fatal error of his life the reality or the suspicion of a conspiracy disarmed and disunited the Italians the soldiers resented the disgrace and loss of their general they were ignorant of their new exarch and Longinus was himself ignorant of the state of the army and the province in the preceding years Italy had been desolated by pestilence and famine and a disaffected people ascribed the calamities of nature to the guilt or folly of their rulers whatever might be the grounds of his security Albonne neither expected nor encountered a Roman army in the field he ascended the Julian Alps and looked down with contempt and desire on the fruitful plains to which his victory communicated the perpetual appellation of the Lombardi a faithful chieftain and a select band were stationed at Forum Giuliae the modern fruilli to guard the passes of the mountains the Lombards respected the strength of Pavia and listened to the prayers of the Trevissons their slow and heavy multitudes proceeded to occupy the palace and city of Verona and Milan now rising from her ashes was invested by the powers of Albonne five months after his departure from Pannonia terror proceeded his march he found everywhere or he left a dreary solitude and the pusillanimous Italians presumed without a trial that the stranger was invincible escaping to lakes or rocks or morasses the affrightened crowds concealed some fragments of their wealth and delayed the moment of their servitude Paulinus the patriarch of Aquila removed his treasures sacred and profane to the Isle of Grotto and his successors were adopted by the Infant Republic of Venice which was continually enriched by the public calamities Honoridis who filled the chair of St. Ambrose accepted the faithless offers of the capitulation and the archbishop with the clergy and nobles of Milan were driven by the perfidy of Albonne to seek a refuge in the less accessible ramparts of Genoa along the maritime coast the courage of the inhabitants was supported by the facility of supply the hopes of relief and the power of escape but from the Trentene Hill of Rome the inland regions of Italy became without a battle or a siege the lasting patrimony of the Lombards the submission of the people invited the barbarians to assume the character of a lawful sovereign and the helpless exarch was confined to the office of announcing to the Emperor Justin the rapid and irretrievable loss of his provinces and cities one city which had been diligently fortified by the Goths resisted the arms of a new invader and while Italy was subdued by the flying detachments of the Lombards the royal camp was fixed above three years before the western gate of Tissenem or Pavia the same courage which obtains the esteem of a civilized enemy provoked the fury of a savage and the impatient procedure had bound himself by a tremendous oath that age and sex and dignity should be confounded in a general massacre the aid of famine at length enabled him to execute his bloody vow but as Albo and entered the gate his horse stumbled, fell and could not be raised from the ground one of his attendants was prompted by compassion or piety to interpret this miraculous sign of the wrath of heaven the conqueror paused and relented he sheathed his sword and slowly reposing himself in the palace of Theodora proclaimed to the trembling multitudes that they should live and obey delighted with the situation of a city which was endeared to his pride by the difficulty of the purchase the Prince of the Lombards disdained the ancient glories of Milan and Pavia during some ages was respected as the capital of the kingdom of Italy the reign of the founder was splendid and transient and before he could regulate his new conquests Albo and fell a sacrifice to domestic treason and female revenge in a palace near Verona which had not been erected for the barbarians he feasted the companions of his arms intoxication was their award of valor and the king himself was tempted by appetite or vanity to exceed the ordinary measure of temperance after draining many capacious bulls of ration or fallarian wine he called for the skull of Cunamond the noblest and most precious ornament of his sideboard the cup of victory was accepted with horrid applause by the circle of the Lombard chiefs fill it again with wine exclaimed the inhuman conqueror fill it to the brim carry this goblet to the queen in my name that she would rejoice with her father in an agony of grief and rage Rosamond had strength to utter let the will of my lord be obeyed and touching it with her lips pronounced a silent imprecation that the insult should be washed away in the blood of Alboen some indulgence might be due to the resentment of a daughter if she had not already violated the duties of a wife implacable inner enmity or inconstant inner love the queen of Italy had stooped from the throne to the arms of a subject and Helmikus the king's armor bear was a secret minister of her pleasure and revenge against the proposal of the murder he could no longer urge the scruples of fidelity or gratitude but Helmikus trembled when he resolved the danger as well as the guilt and the matchless strength and intrepidity of a warrior whom he had so often attended in the field of battle he pressed and obtained that one of the bravest champions of the Lombards should be associated to the Enterprise but no more than a promise of secrecy could be drawn from the gallant to Paraduce and the mode of seduction employed by Rosamond betrays her shameless insensibility she supplied the place of one of her female attendants who was beloved by Paraduce and contrived some excuse for darkness and silence till she could inform her companion that he had enjoyed the queen of the Lombards and that his own death or the death of Alboen must be the consequence of such treasonable adultery in this alternative he chose rather to be the accomplice than the victim of Rosamond her condaunted spirit was incapable of fear or remorse she expected and soon found a favorable moment when the king oppressed with wine had retired from the table to his afternoon slumbers his faithless spouse was anxious for his health and repose the gates of the palace were shut the arms removed the attendants dismissed and Rosamond after lulling him to rest unbolted the chamber door and urged the reluctant conspirators to the instant execution of the deed on the first alarm the warrior started from his couch his sword which he had attempted to draw had been fastened to the scabard by the hand of Rosamond and a small stool his only weapon could not long protect him from the spears of the assassins the daughter of Cunamond smiled in his fall his body was buried under the staircase of the palace and the grateful posterity of the Lombards revered the tomb and the memory of their victorious leader