Chapter VII: Part 7

"At the moment when the King bent his head over the fountain of life, 'Lower thy head with humility, Sicambrian,' cried the eloquent bishop; 'adore what thou hast burned; burn what thou hast adored.' The King's two sisters, Alboflede and Lantechilde, likewise received baptism; and so at the same time did three thousand of the Frankish army, besides a large number of women and children."

When it was known that Clovis had been baptized by St. Remi, and with what striking circumstance, great was the satisfaction among the Catholics. The chief Burgundian prelate, Avitus, bishop of Vienne, wrote to the Frankish King: "Your faith is our victory; in choosing for you and yours, you have pronounced for all; divine Providence hath given you as arbiter to our age. Greece can boast of having a sovereign of our persuasion; but she is no longer alone in possession of this precious gift; the rest of the world doth share her light." Pope Anastasius hastened to express his joy to Clovis. "The Church, our common mother," he wrote, "rejoiceth to have born unto God so great a king. Continue, glorious and illustrious son, to cheer the heart of this tender mother; be a column of iron to support her, and she in her turn will give thee victory over all thine enemies."

Clovis was not a man to omit turning his Catholic popularity to the account of his ambition. At the very time when he was receiving these testimonies of good-will from the heads of the Church he learned that Gondebaud, disquieted, no doubt, at the conversion of his powerful neighbor, had just made a vain attempt, at a conference held at Lyons, to reconcile in his kingdom the Catholics and the Arians. Clovis considered the moment favorable to his projects of aggrandizement at the expense of the Burgundian King; he fomented the dissensions which already prevailed between Gondebaud and his brother Godegisile, assured to himself the latter's complicity, and suddenly entered Burgundy with his army. Gondebaud, betrayed and beaten at the first encounter at Dijon, fled to the south of his kingdom, and went and shut himself up in Avignon. Clovis pursued, and besieged him there. Gondebaud in great alarm asked counsel of his Roman confidant Aridius, who had but lately foretold to him what the marriage of his niece Clotilde would bring upon him. "On every side," said the King, "I am encompassed by perils, and I know not what to do. Lo! here be these barbarians come upon us to slay us and destroy the land." "To escape death," answered Aridius, "thou must appease the ferocity of this man. Now, if it please thee, I will feign to fly from thee and go over to him. So soon as I shall be with him, I will so do that he ruin neither thee nor the land. Only have thou care to perform whatsoever I shall ask of thee, until the Lord in his goodness deign to make thy cause triumph." "All that thou shalt bid will I do," said Gondebaud. So Aridius left Gondebaud and went his way to Clovis, and said: "Most pious King, I am thy humble servant; I give up this wretched Gondebaud and come unto thy mightiness. If thy goodness deign to cast a glance upon me, thou and thy descendants will find in me a servant of integrity and fidelity."

Clovis received him very kindly and kept him by him, for Aridius was agreeable in conversation, wise in counsel, just in judgment, and faithful in whatever was committed to his care. As the siege continued Aridius said to Clovis: "O King, if the glory of thy greatness would suffer thee to listen to the words of my feebleness, though thou needest not counsel, I would submit them to thee in all fidelity, and they might be of use to thee, whether for thyself or for the towns by the which thou dost propose to pass. Wherefore keepest thou here thine army whilst thine enemy doth hide himself in a well-fortified place? Thou ravagest the fields, thou pillagest the corn, thou cuttest down the vines, thou fellest the olive-trees, thou destroyest all the produce of the land, and yet thou succeedest not in destroying thine adversary. Rather send thou unto him deputies, and lay on him a tribute to be paid to thee every year. Thus the land will be preserved, and thou wilt be lord forever over him who owes thee tribute. If he refuse, thou shalt then do what pleaseth thee." Clovis found the counsel good, ordered his army to return home, sent deputies to Gondebaud, and called upon him to undertake the payment every year of a fixed tribute. Gondebaud paid for the time, and promised to pay punctually for the future. And peace appeared made between the two barbarians.

Pleased with his campaign against the Burgundians, Clovis kept on good terms with Gondebaud, who was to be henceforth a simple tributary, and transferred to the Visigoths of Aquitania and their King, Alaric II, his views of conquest. He had there the same pretexts for attack and the same means of success. Alaric and his Visigoths were Arians, and between them and the bishops of Southern Gaul, nearly all orthodox Catholics, there were permanent ill-will and distrust. Alaric attempted to conciliate their good-will: in 506 a council met at Agde; the thirty-four bishops of Aquitania attended in person or by delegate; the King protested that he had no design of persecuting the Catholics; the bishops, at the opening of the council, offered prayers for the King; but Alaric did not forget that immediately after the conversion of Clovis, Volusian, bishop of Tours, had conspired in favor of the Frankish King, and the bishops of Aquitania regarded Volusian as a martyr, for he had been deposed, without trial, from his see, and taken as a prisoner first to Toulouse, and afterward into Spain, where in a short time he had been put to death. In vain did the glorious chief of the race of Goths, Theodoric the Great, king of Italy, father-in-law of Alaric, and brother-in-law of Clovis, exert himself to prevent any outbreak between the two kings. In 498 Alaric, no doubt at his father-in-law's solicitation, wrote to Clovis, "If my brother consent thereto, I would, following my desires and by the grace of God, have an interview with him."

The interview took place at a small island in the Loire, called the Ile d'Or or de St. Jean, near Amboise. "The two kings," says Gregory of Tours, "conversed, ate, and drank together, and separated with mutual promises of friendship." The positions and passions of each soon made the promises of no effect. In 505 Clovis was seriously ill; the bishops of Aquitania testified warm interest in him; and one of them, Quintian, bishop of Rodez, being on this account persecuted by the Visigoths, had to seek refuge at Clermont, in Auvergne. Clovis no longer concealed his designs. In 507 he assembled his principal chieftains; and "It displeaseth me greatly," said he, "that these Arians should possess a portion of the Gauls; march we forth with the help of God, drive we them from that land, for it is very goodly, and bring we it under our own power."

The Franks applauded their King; and the army set out on the march in the direction of Poitiers, where Alaric happened at that time to be. "As a portion of the troops was crossing the territory of Tours," says Gregory, who was shortly afterward its bishop, "Clovis forbade, out of respect for St. Martin, anything to be taken, save grass and water. One of the army, however, having found some hay belonging to a poor man, said, 'This is grass; we do not break the King's commands by taking it'; and, in spite of the poor man's resistance, he robbed him of his hay. Clovis, informed of the fact, slew the soldier on the spot with one sweep of his sword, saying, 'What will become of our hopes of victory, if we offend St. Martin?'" Alaric had prepared for the struggle; and the two armies met in the plain of Vouille, on the banks of the little river Clain, a few leagues from Poitiers. The battle was very severe. "The Goths," says Gregory of Tours, "fought with missiles; the Franks sword in hand. Clovis met and with his own hand slew Alaric in the fray; at the moment of striking his blow two Goths fell suddenly upon Clovis, and attacked him with their pikes on either side, but he escaped death, thanks to his cuirass and the agility of his horse."

Beaten and kingless, the Goths retreated in great disorder; and Clovis, pursuing his march, arrived without opposition at Bordeaux, where he settled down with his Franks for the winter. When the war season returned he marched on Toulouse, the capital of the Visigoths, which he likewise occupied without resistance, and where he seized a portion of the treasure of the Visigothic kings. He quitted it to lay siege to Carcassonne, which had been made by the Romans into the stronghold of Septimania.

There his course of conquest was destined to end. After the battle of Vouille he had sent his eldest son, Theodoric, in command of a division, with orders to cross Central Gaul from west to east, to go and join the Burgundians of Gondebaud, who had promised his assistance, and in conjunction with them to attack the Visigoths on the banks of the Rhone and in Narbonensis. The young Frank boldly executed his father's orders, but the intervention of Theodoric the Great, king of Italy, prevented the success of the operation. He sent an army into Gaul to the aid of his son-in-law Alaric; and the united Franks and Burgundians failed in their attacks upon the Visigoths of the eastern provinces. Clovis had no idea of compromising by his obstinacy the conquests already accomplished; he therefore raised the siege of Carcassonne, returned first to Toulouse, and then to Bordeaux, took Angouleme, the only town of importance he did not possess in Aquitania; and feeling reasonably sure that the Visigoths, who, even with the aid that had come from Italy, had great difficulty in defending what remained to them of Southern Gaul, would not come and dispute with him what he had already conquered, he halted at Tours, and stayed there some time, to enjoy on the very spot the fruits of his victory and to establish his power in his new possessions.

It appears that even the Britons of Armorica tendered to him at that time, through the interposition of Melanius, bishop of Rennes, if not their actual submission, at any rate their subordination and homage.

Clovis at the same time had his self-respect flattered in a manner to which barbaric conquerors always attach great importance. Anastasius, emperor of the East, with whom he had already had some communication, sent to him at Tours a solemn embassy, bringing him the titles and insignia of patrician and consul. "Clovis," says Gregory of Tours, "put on the tunic of purple and the chlamys and the diadem; then mounting his horse, he scattered with his own hand and with much bounty gold and silver among the people, on the road which lies between the gate of the court belonging to the basilica of St. Martin and the church of the city. From that day he was called consul and augustus. On leaving the city of Tours he repaired to Paris, where he fixed the seat of his government."

Paris was certainly the political centre of his dominions, the intermediate point between the early settlements of his race and himself in Gaul and his new Gallic conquests; but he lacked some of the possessions nearest to him and most naturally, in his own opinion, his. To the east, north, and south-west of Paris were settled some independent Frankish tribes, governed by chieftains with the name of kings. So soon as he had settled at Paris, it was the one fixed idea of Clovis to reduce them all to subjection. He had conquered the Burgundians and the Visigoths; it remained for him to conquer and unite together all the Franks. The barbarian showed himself in his true colors, during this new enterprise, with his violence, his craft, his cruelty, and his perfidy. He began with the most powerful of the tribes, the Ripuarian Franks. He sent secretly to Cloderic, son of Sigebert, their King, saying: "Thy father hath become old, and his wound maketh him to limp o' one foot; if he should die, his kingdom will come to thee of right, together with our friendship." Cloderic had his father assassinated while asleep in his tent, and sent messengers to Clovis, saying: "My father is dead, and I have in my power his kingdom and his treasures. Send thou unto me certain of thy people, and I will gladly give into their hands whatsoever among these treasures shall seem like to please thee." The envoys of Clovis came, and, as they were examining in detail the treasures of Sigebert, Cloderic said to them, "This is the coffer wherein my father was wont to pile up his gold pieces." "Plunge," said they, "thy hand right to the bottom, that none escape thee." Cloderic bent forward, and one of the envoys lifted his battle-axe and cleft his skull.

Clovis went to Cologne and convoked the Franks of the canton. "Learn," said he, "that which hath happened. As I was sailing on the river Scheldt, Cloderic, son of my relative, did vex his father, saying I was minded to slay him; and as Sigebert was flying across the forest of Buchaw, his son himself sent bandits, who fell upon him and slew him. Cloderic also is dead, smitten I know not by whom as he was opening his father's treasures. I am altogether unconcerned in it all, and I could not shed the blood of my relatives, for it is a crime. But since it hath so happened, I give unto you counsel, which ye shall follow if it seem to you good; turn ye toward me, and live under my protection." And they who were present hoisted him on a huge buckler and hailed him king.

After Sigebert and the Ripuarian Franks came the Franks of Terouanne, and Chararic, their King. He had refused, twenty years before, to march with Clovis against the Roman Syagrius. Clovis, who had not forgotten it, attacked him, took him and his son prisoners, and had them both shorn, ordering that Chararic should be ordained priest and his son deacon. Chararic was much grieved. Then said his son to him: "Here be branches which were cut from a green tree, and are not yet wholly dried up: soon they will sprout forth again. May it please God that he who hath wrought all this shall die as quickly!" Clovis considered these words as a menace, had both father and son beheaded, and took possession of their dominions. Ragnacaire, king of the Franks of Cambrai, was the third to be attacked. He had served Clovis against Syagrius, but Clovis took no account of that. Ragnacaire, being beaten, was preparing for flight, when he was seized by his own soldiers, who tied his hands behind his back, and took him to Clovis along with his brother Riquier. "Wherefore hast thou dishonored our race," said Clovis, "by letting thyself wear bonds? 'Twere better to have died," and cleft his skull with one stroke of his battle-axe; then turning to Riquier, "Hadst thou succored thy brother," said he, "he had assuredly not been bound," and felled him likewise at his feet. Rignomer, king of the Franks of Le Mans, met the same fate, but not at the hands, only by the order, of Clovis. So Clovis remained sole king of the Franks, for all the independent chieftains had disappeared.

It is said that one day, after all these murders, Clovis, surrounded by his trusted servants, cried: "Woe is me! who am left as a traveller among strangers, and who have no longer relatives to lend me support in the day of adversity!" Thus do the most shameless take pleasure in exhibiting sham sorrow after crimes they cannot disavow.

It cannot be known whether Clovis ever felt in his soul any scruple or regret for his many acts of ferocity and perfidy, or if he looked as sufficient expiation upon the favor he had bestowed on the churches and their bishops, upon the gifts he lavished on them, and upon the absolutions he demanded of them. In times of mingled barbarism and faith there are strange cases of credulity in the way of bargains made with divine justice. We read in the life of St. Eleutherus, bishop of Tournai, the native land of Clovis, that at one of those periods when the conscience of the Frankish King must have been most heavily laden, he presented himself one day at the church. "My lord King," said the bishop, "I know wherefore thou art come to me." "I have nothing special to say unto thee," rejoined Clovis, "Say not so, O King," replied the bishop; "thou hast sinned, and darest not avow it." The King was moved, and ended by confessing that he had deeply sinned and had need of large pardon. St. Eleutherus betook himself to prayer; the King came back the next day, and the bishop gave him a paper on which was written by a divine hand, he said, "the pardon granted to royal offences which might not be revealed."

Clovis accepted this absolution, and loaded the church of Tournai with his gifts. In 511, the very year of his death, his last act in life was the convocation at Orleans of a council, which was attended by thirty bishops from the different parts of his kingdom, and at which were adopted thirty-one canons that, while granting to the Church great privileges and means of influence, in many cases favorable to humanity and respect for the rights of individuals, bound the Church closely to the state, and gave to royalty, even in ecclesiastical matters, great power. The bishops, on breaking up, sent these canons to Clovis, praying him to give them the sanction of his adhesion, which he did. A few months afterward, on the 27th of November, 511, Clovis died at Paris, and was buried in the church of St. Peter and St. Paul, nowadays St. Genevieve, built by his wife, Queen Clotilde, who survived him.

It was but right to make the reader intimately acquainted with that great barbarian who, with all his vices and all his crimes, brought about, or rather began, two great matters which have already endured through fourteen centuries and still endure; for he founded the French monarchy and Christian France. Such men and such facts have a right to be closely studied and set in a clear light by history. Nothing similar will be seen for two centuries, under the descendants of Clovis, the Merovingians; among them will be encountered none but those personages whom death reduces to insignificance, whatever may have been their rank in the world, and of whom Vergil thus speaks to Dante:

"Waste we no words on them: one glance and pass thou on."

PUBLICATION OF THE JUSTINIAN CODE

A.D. 529-534

EDWARD GIBBON

The richest legacy ever left by one civilization to another was the
Justinian Code. This compilation of the entire body of the Roman
civil law (_Corpus Juris Civilis_), as evolved during the thousand
years after the Decemvirate legislation of the Twelve Tables,
comprises perhaps the most valuable historical data preserved from
ancient times. It presents a vivid and authentic picture of the
domestic life of the Romans and the rules which governed their
relations to each other. This phase of history is considered by
modern historians as of far greater importance than the chronicles
of battles and court intrigues.

The importance of the Justinian Code, however, is not that of mere
history. Its influence as a living force is what compels the
admiration and gratitude of mankind. It forms the basis of the
systems of law in all the civilized nations of the world, with the
exception of those of the English-speaking peoples, and even in
these the principles of the civil law--as the Roman law is called
in contradistinction to the common and statute law of these
nations--form the most important part of the regulations concerning
personal property.

For this monumental work the world is indebted to Justinian I
(Flavius Anicius Justinianus), the most famous of the emperors of
the Eastern Empire since Constantine. He was born a Slavonian
peasant. Uprawda, his original name, was Latinized into Justinian
when he became an officer in the Imperial Guard. He was adopted,
educated, and trained by Justin I, whom he succeeded as emperor.
His long reign (527-565) was disturbed by the sanguinary factions
of the Circus--the Greens and the Blues, so named from the colors
of the competing charioteers in the games--the suppression of the
schools of philosophy at Athens, and by various wars. Nevertheless
it was marked by magnificent works, the administrative organization
of the empire, and the great buildings at Constantinople. The
Church of Santa-Sophia, the first great Christian church, although
used as a Mahometan mosque since 1459, still stands at
Constantinople, with its plain exterior but impressive interior, a
monument of Justinian's reign.

His two great masters of war, foreigners in origin like himself,
were Belisarius the Thracian and Narses the Armenian. Africa was
wrested from the Vandals; Italy from the successors of Theodoric;
and much of Spain from the Western Goths. Under Justinian the
Byzantine or Eastern Empire resumed much of the majesty and power
of ancient Rome. But the crowning glory of his career was the
Code. One of the greatest historians says of his reign: "Its most
instructive lesson has been drawn from the influence which its
legislation has exercised on foreign nations. The unerring instinct
of mankind has fixed on this period as one of the greatest eras in
man's annals."

The Code was a digest of the whole mass of Roman law literature,
compiled and annotated at the command of Justinian, under the
supervision of the great lawyer Tribonian, who, with his helpers,
reduced the chaotic mass to a logical system containing the essence
of Roman law. The first part of the _Codex Constitutionem_,
prepared in less than a year, was published in April, 529. The
second part, the _Digest_ or _Pandects,_ appeared in December, 533.
To insure conformity, both were revised and issued in November,
534, the Institutiones, an _elementary_ text-book, founded on the
_Institutiones_ of Gaius, who lived A.D. 110-180, being added, and
the whole, as a complete body of law, given to the law schools at
Constantinople, Rome, Alexandria, Berytus, and Caesarea, for use in
their graduate course. Later the _Novellae Constitutione_, or
_Novels,_ most of them in Greek, comprising statutes of Justinian
arranged chronologically, completed the Code.

Forgotten or ignored during the lawless days of the Dark Ages, an
entire copy of this famous code was discovered when Amalphi was
taken by the Pisans in 1137. Its publication immediately attracted
the attention of the learned world. Gratian, a monk of Bologna,
compiled a digest of the canon law on the model of that work, and
soon afterward, incorporating with his writings the collections of
prior authors, gave his "decretum" to the public in 1151. From that
time the two codes, the civil and canon laws, were deemed the
principal repositories of legal knowledge, and the study of each
was considered necessary to throw light on the other.

Justinian's example in the codification of laws was followed by
almost every European nation after the eighteenth century; the Code
Napoleon (1803-04), regulating all that pertains "to the civil
rights of citizens and of property," being the most brilliant
parallel to the Justinian Code. The reader familiar with the life
of Napoleon will recall that all of his historians quote his
frequent allusion to the Code Napoleon as the one great work which
would be a living monument of his career, when the glory of all his
other achievements would be dimmed by time or forgotten.

Gibbon's examination of the Justinian Code is justly regarded as
one of the most important features of the historian's great work,
and in several of the leading universities of Europe has long been
used as a text-work on civil law.

When Justinian ascended the throne, the reformation of the Roman jurisprudence was an arduous but indispensable task. In the space of ten centuries, the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest. Books could not easily be found; and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion. The subjects of the Greek provinces were ignorant of the language that disposed of their lives and properties; and the _barbarous_ dialect of the Latins was imperfectly studied in the academies of Berytus and Constantinople. As an Illyrian soldier, that idiom was familiar to the infancy of Justinian; his youth had been instructed by the lessons of jurisprudence, and his imperial choice selected the most learned civilians of the East, to labor with their sovereign in the work of reformation. The theory of professors was assisted by the practice of advocates and the experience of magistrates, and the whole undertaking was animated by the spirit of Tribonian.

This extraordinary man, the object of so much praise and censure, was a native of Side in Pamphylia; and his genius, like that of Bacon, embraced as his own all the business and knowledge of the age. Tribonian composed, both in prose and verse, on a strange diversity of curious and abstruse subjects; a double panegyric of Justinian and the life of the philosopher Theodotus; the nature of happiness and the duties of government; Homer's catalogue and the four-and-twenty sorts of metre; the astronomical canon of Ptolemy; the changes of the months; the houses of the planets; and the harmonic system of the world. To the literature of Greece he added the use of the Latin tongue; the Roman civilians were deposited in his library and in his mind; and he most assiduously cultivated those arts which opened the road of wealth and preferment. From the bar of the praetorian prefects he raised himself to the honors of quaestor, of consul, and of master of the offices: the council of Justinian listened to his eloquence and wisdom, and envy was mitigated by the gentleness and affability of his manners.

The reproaches of impiety and avarice have stained the virtues or the reputation of Tribonian. In a bigoted and persecuting court the principal minister was accused of a secret aversion to the Christian faith, and was supposed to entertain the sentiments of an atheist and a pagan, which have been imputed, inconsistently enough, to the last philosophers of Greece. His avarice was more clearly proved and more sensibly felt. If he were swayed by gifts in the administration of justice, the example of Bacon will again occur: nor can the merit of Tribonian atone for his baseness, if he degraded the sanctity of his profession; and if laws were every day enacted, modified, or repealed, for the base consideration of his private emolument. In the sedition of Constantinople his removal was granted to the clamors, perhaps to the just indignation, of the people; but the quaestor was speedily restored, and, till the hour of his death, he possessed above twenty years the favor and confidence of the Emperor. His passive and dutiful submission has been honored with the praise of Justinian himself, whose vanity was incapable of discerning how often that submission degenerated into the grossest adulation. Tribonian adored the virtues of his gracious 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, his creative genius, enlightened by reflection and study, would have given to the world a pure and original system of jurisprudence. Whatever flattery might suggest, the Emperor of the East was afraid to establish his private judgment as the standard of equity; in the possession of legislative power, he borrowed the aid of time and opinion; and his laborious compilations are guarded by the sages and legislators of past times. Instead of a statue cast in a simple mould by the hand of an artist, the works of Justinian represent a tessellated pavement of antique and costly, but too often of incoherent, fragments. In the first year of his reign he directed the faithful Tribonian and nine learned associates to revise the ordinances of his predecessors, as they were contained, since the time of Adrian, in the Gregorian, Hermogenian, and Theodosian codes; to purge the errors and contradictions, to retrench whatever was obsolete or superfluous, and to select the wise and salutary laws best adapted to the practice of the tribunals and the use of his subjects. The work was accomplished in fourteen months; and the _Twelve_ books or _Tables_, which the new decemvirs produced, might be designed to imitate the labors of their Roman predecessors.

The new _Code_ of Justinian was honored with his name and confirmed by his royal signature: authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magistrates of the European, the Asiatic, and afterward the African provinces; and the law of the empire was proclaimed on solemn festivals at the doors of churches. A more arduous operation was still behind--to extract the spirit of jurisprudence from the decisions and conjectures, the questions and disputes of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the Emperor to exercise an absolute jurisdiction over the works of their predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the _Digest_ or _Pandects_ in three years will deserve praise or censure, according to the merit of the execution.

From the library of Tribonian they chose forty, the most eminent civilians of former times: two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully re-reduced in this abstract to the moderate number of one hundred and fifty thousand. The edition of this great work was delayed a month after that of the _Institutes_, and it seemed reasonable that the elements should precede the digest of the Roman law. As soon as the Emperor had approved their labors, he ratified by his legislative power the speculations of these private citizens: their commentaries on the _Twelve Tables_, the perpetual edict, the laws of the people, and the decrees of the senate succeeded to the authority of the text; and the text was abandoned as a useless, though venerable, relic of antiquity. The _Code_, the _Pandects_, and the _Institutes_ were declared to be the legitimate system of civil jurisprudence; they alone were admitted in the tribunals, and they alone were taught in the academies of Rome, Constantinople, and Berytus. Justinian addressed to the senate and provinces his _eternal oracles_; and his pride, under the mask of piety, ascribed the consummation of this great design to the support and inspiration of the Deity.

Since the Emperor declined the fame and envy of original composition, we can only require at his hands method, choice, and fidelity, the humble, though indispensable, virtues of a compiler. Among the various combinations of ideas it is difficult to assign any reasonable preference; but as the order of Justinian is different in his three works, it is possible that all may be wrong; and it is certain that two cannot be right. In the selection of ancient laws he seems to have viewed his predecessors without jealousy and with equal regard: the series could not ascend above the reign of Adrian; and the narrow distinction of paganism and Christianity, introduced by the superstition of Theodosius, had been abolished by the consent of mankind. But the jurisprudence of the _Pandects_ is circumscribed within a period of a hundred years, from the perpetual edict to the death of Severus Alexander: the civilians who lived under the first Caesars are seldom permitted to speak, and only three names can be attributed to the age of the republic. The favorite of Justinian (it has been fiercely urged) was fearful of encountering the light of freedom and the gravity of Roman sages. Tribonian condemned to oblivion the genuine and native wisdom of Cato, the Scaevolas, and Sulpicius; while he invoked spirits more congenial to his own, the Syrians, Greeks, and Africans, who flocked to the imperial court to study Latin as a foreign tongue and jurisprudence as a lucrative profession. But the ministers of Justinian 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, our candor would acknowledge that, except in purity of language, their intrinsic merit was excelled by the school of Papinian and Ulpian. The science of the laws is the slow growth of time and experience, and the advantage both of method and materials is naturally assumed by the most recent authors. The civilians of the reign of the Antonines had studied the works of their predecessors: their philosophic spirit had mitigated the rigor of antiquity, simplified the forms of proceeding, and emerged from the jealousy and prejudice of the rival sects. The choice of the authorities that compose the _Pandects_ depended on the judgment of Tribonian; but the power of his sovereign could not absolve him from the sacred obligations of truth and fidelity. As the legislator of the empire, Justinian might repeal the acts of the Antonines, or condemn as seditious the free principles which were maintained by the last of the _Roman_ lawyers. 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 pretence of uniformity: but their cares have been insufficient, and the antinomies, or contradictions, of the _Code_ and _Pandects_ still exercise the patience and subtlety of modern civilians.

A rumor devoid of evidence has been propagated by the enemies of Justinian, that the jurisprudence of ancient Rome was reduced to ashes by the author of the _Pandects_, from the vain persuasion that it was now either false or superfluous. Without usurping an office so invidious, the Emperor might safely commit to ignorance and time the accomplishment of this destructive wish. Before the invention of printing and paper, the labor and the materials of writing could be purchased only by the rich; and it may reasonably be computed that the price of books was a hundredfold their present value. Copies were slowly multiplied and cautiously renewed: the hopes of profit tempted the sacrilegious scribes to erase the characters of antiquity,[26] and Sophocles or Tacitus were obliged to resign the parchment to missals, 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. Three hundred and sixty years of disorder and decay accelerated the progress of oblivion; and it may fairly be presumed that of the writings which Justinian is accused of neglecting many were no longer to be found in the libraries of the East. The copies of Papinian or Ulpian, which the reformer had proscribed, were deemed unworthy of future notice; the _Twelve Tables_ and praetorian edicts insensibly vanished, and the monuments of ancient Rome were neglected or destroyed by the envy and ignorance of the Greeks.

Even the _Pandects_ themselves have escaped with difficulty and danger from the common shipwreck, and criticism has pronounced that _all_ the editions and manuscripts of the West are derived from _one_ original. It was transcribed at Constantinople in the beginning of the seventh century, was successfully transported by the accidents of war and commerce to Amalphi, Pisa, and Florence,[27] and is now deposited as a sacred relic in the ancient palace of the republic.[28]

It is the first care of a reformer to prevent any future reformation. To maintain the text of the _Pandects_, the _Institutes,_ and the _Code_, the use of ciphers and abbreviations was rigorously proscribed; and as Justinian recollected, that the perpetual edict had been buried under the weight of commentators, he denounced the punishment of forgery against the rash civilians who should presume to interpret or pervert the will of their sovereign. The scholars of Accursius, of Bartolus, of Cujacius, should blush for their accumulated guilt, unless they dare to dispute his right of binding the authority of his successors and the native freedom of the mind. But the Emperor was unable to fix his own inconstancy; and while he boasted of renewing the exchange of Diomede, of transmuting brass into gold, discovered the necessity of purifying his gold from the mixture of baser alloy. Six years had not elapsed from the publication of the _Code_ before he condemned the imperfect attempt by a new and more accurate edition of the same work, which he enriched with two hundred of his own laws and fifty decisions of the darkest and most intricate points of jurisprudence. Every year or, according to Procopius, each day of his long reign was marked by some legal innovation. Many of his acts were rescinded by himself; many were rejected by his successors; many have been obliterated by time; but the number of sixteen _Edicts_ and one hundred and sixty-eight _Novels_ has been admitted into the authentic body of the civil jurisprudence. In the opinion of a philosopher superior to the prejudices of his profession, these incessant and, for the most part, trifling alterations, can be only explained by the venal spirit of a prince who sold without shame his judgments and his laws.

Monarchs seldom condescend to become the preceptors of their subjects; and some praise is due to Justinian, by whose command an ample system was reduced to a short and elementary treatise. Among the various institutes of the Roman law those of Caius 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 were incrusted with the coarser materials of a degenerate age. The same volume which introduced the youth of Rome, Constantinople, and Berytus to the gradual study of the _Code_ and _Pandects_ is still precious to the historian, the philosopher, and the magistrate. The _Institutes_ of Justinian are divided into four books: they proceed, with no contemptible method, from (1), _Persons_, to (2) _Things_, and from things to (3) _Actions_; and the Article IV of _Private Wrongs_ is terminated by the principles of _Criminal Law_.[29]

I. The distinction of ranks and _persons_ is the firmest basis of a mixed and limited government. The perfect equality of men is the point in which the extremes of democracy and despotism are confounded; since the majesty of the prince or people would be offended, if any heads were exalted above the level of their fellow-slaves or fellow-citizens. In the decline of the Roman Empire, the proud distinctions of the republic were gradually abolished, and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The Emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the memory of famous ancestors. He delighted to honor with titles and emoluments his generals, magistrates, and senators; and his precarious indulgence communicated some rays of their glory to the persons of their wives and children. But in the eye of the law all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty name. The voice of a Roman could no longer enact his laws or create the annual ministers of his power: his constitutional rights might have checked the arbitrary will of a master, and the bold adventurer from Germany or Arabia was admitted, with equal favor, to the civil and military command which the citizen alone had been once entitled to assume over the conquests of his fathers. The first Caesars had scrupulously guarded the distinction of _ingenuous_ and _servile_ birth, which was decided by the condition of the mother; and the candor of the laws was satisfied if _her_ freedom could be ascertained during a single moment between the conception and the delivery. The slaves who were liberated by a generous master immediately entered into the middle class of _libertines_ or freedmen; but they could never be enfranchised from the duties of obedience and gratitude: whatever were the fruits of their industry, their patron and his family inherited the third part, or even the whole of their fortune if they died without children and without a testament.

Justinian respected the rights of patrons, but his indulgence removed the badge of disgrace from the two inferior orders of freedmen: whoever ceased to be a slave obtained without reserve or delay the station of a citizen; and at length the dignity of an ingenuous birth, which nature had refused, was created or supposed by the omnipotence of the Emperor. Whatever restraints of age, or forms, or numbers had been formerly introduced to check the abuse of manumissions and the too rapid increase of vile and indigent Romans, he finally abolished; and the spirit of his laws promoted the extinction of domestic servitude. Yet the eastern provinces were filled in the time of Justinian with multitudes of slaves, either born or purchased for the use of their masters; and the price, from ten to seventy pieces of gold, was determined by their age, their strength, and their education. But the hardships of this dependent state were continually diminished by the influence of government and religion, and the pride of a subject was no longer elated by his absolute dominion over the life and happiness of his bondsman.

The law of nature instructs most animals to cherish and educate their infant progeny. The law of reason inculcates to the human species the return 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 coeval 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 decemvirs. In the Forum, the senate, or the camp the adult son of a Roman citizen enjoyed the public and private rights of a _person_: in his father's house he was a mere _thing_;[30] confounded by the laws with the movables, the cattle, and the slaves, whom the capricious master might alienate or destroy without being responsible to any earthly tribunal. The hand which bestowed the daily sustenance might resume the voluntary gift, and whatever was acquired, by the labor or fortune of the son was immediately lost in the property of the father. His stolen goods (his oxen or his children) might be recovered by the same action of theft; and if either had been guilty of a trespass, it was in his own option to compensate the damage or resign to the injured party the obnoxious animal.

At the call of indigence or avarice the master of a family could dispose of his children or his slaves. But the condition of the slave was far more advantageous, since he regained by the first manumission his alienated freedom: the son was again restored to his unnatural father; he might be condemned to servitude a second and a third time, and it was not till after the third sale and deliverance that he was enfranchised from the domestic power which had been so repeatedly abused. According to his discretion, a father might chastise the real or imaginary faults of his children by stripes, by imprisonment, by exile, by sending them to the country to work in chains among the meanest of his servants. The majesty of a parent was armed with the power of life and death; and the examples of such bloody executions, which were sometimes praised and never punished, may be traced in the annals of Rome beyond the times of Pompey and Augustus. Neither age nor rank, nor the consular office, nor the honors of a triumph could exempt the most illustrious citizen from the bonds of filial subjection: his own descendants were included in the family of their common ancestor; and the claims of adoption were not less sacred or less rigorous than those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the sentiments of paternal love, and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master.

The first limitation of paternal power is ascribed to the justice and humanity of Numa, and the maid who, with _his_ father's consent, had espoused a freeman, was protected from the disgrace of becoming the wife of a slave. In the first ages, when the city was pressed and often famished by her Latin and Tuscan neighbors, the sale of children might be a frequent practice; but as a Roman could not legally purchase the liberty of his fellow-citizen, the market must gradually fail, and the trade would be destroyed by the conquests of the republic. An imperfect right of property was at length communicated to sons; and the threefold distinction of _profectitious_, _adventitious_, and _professional_ was ascertained by the jurisprudence of the _Code_ and _Pandects_. Of all that proceeded from the father, he imparted only the use, and reserved the absolute dominion; yet if his goods were sold, the filial portion was excepted by a favorable interpretation from the demands of the creditors. In whatever accrued by marriage, gift, or collateral succession, the property was secured to the son; but the father, unless he had been specially excluded, enjoyed the usufruct during his life.

As a just and prudent reward of military virtue, the spoils of the enemy were acquired, possessed, and bequeathed by the soldier alone; and the fair analogy was extended to the emoluments of any liberal profession, the salary of public service, and the sacred liberality of the emperor or empress. The life of a citizen was less exposed than his fortune to the abuse of paternal power. Yet his life might be adverse to the interest or passions of an unworthy father: the same crimes that flowed from the corruption were more sensibly felt by the humanity of the Augustan age; and the cruel Erixo, who whipped his son till he expired, was saved by the Emperor from the just fury of the multitude. The Roman father, from the license of servile dominion, was reduced to the gravity and moderation of a judge. The presence and opinion of Augustus confirmed the sentence of exile pronounced against an intentional parricide by the domestic tribunal of Arius. Adrian transported to an island the jealous parent who, like a robber, had seized the opportunity of hunting to assassinate a youth, the incestuous lover of his step-mother. A private jurisdiction is repugnant to the spirit of monarchy; the parent was again reduced from a judge to an accuser, and the magistrates were enjoined by Severus Alexander to hear his complaints and execute his sentence. He could no longer take the life of a son without incurring the guilt and punishment of murder; and the pains of parricide, from which he had been excepted by the Pompeian law, were finally inflicted by the justice of Constantine.

The same protection was due to every period of existence; and reason must applaud the humanity of Paulus for imputing the crime of murder to the father who strangles, or starves, or abandons his new-born infant; or exposes him in a public place to find the mercy which he himself had denied. But the exposition of children was the prevailing and stubborn vice of antiquity: it was sometimes prescribed, often permitted, almost always practised with impunity by the nations who never entertained the Roman ideas of paternal power; and the dramatic poets who appeal to the human heart represent with indifference a popular custom which was palliated by the motives of economy and compassion. 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 and Christianity had been insufficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment.

Experience has proved that savage are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage: it was fixed by Numa at the tender age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin. 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; they tasted a salt-cake of _far_ or rice; and this confarreation, which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body.

But this union on the side of the woman was rigorous and unequal; and she renounced the name and worship of her father's house to embrace a new servitude, decorated only by the title of adoption: a fiction of the law, neither rational nor elegant, bestowed on the mother of a family (her proper appellation) the strange characters of sister to her own children, and of daughter to her husband or master, who was invested with the plenitude of paternal power. By his judgment or caprice her behavior was approved or censured or chastised; he exercised the jurisdiction of life and death, and it was allowed that in the cases of adultery or drunkenness 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 more favored partner.

After the Punic triumphs the matrons of Rome aspired to the common benefits of a free and opulent republic; their wishes were gratified by the indulgence of fathers and lovers, and their ambition was unsuccessfully resisted by the gravity of Cato the Censor. They declined the solemnities of the old nuptials; defeated the annual prescription by an absence of three days; and, without losing their name or independence, subscribed the liberal and definite terms of a marriage contract. Of their private fortunes they communicated the use and secured the property; the estates of a wife could neither be alienated nor mortgaged by a prodigal husband; their mutual gifts were prohibited by the jealousy of the laws; and the misconduct of either party might afford under another name a future subject for an action of theft. To this loose and voluntary compact religious and civil rights were no longer essential; and between persons of similar rank, the apparent community of life was allowed as sufficient evidence of their nuptials.