nace and felt the stroke of an invisible spectre. But the greater number, in their beds, in the streets, in their usual occupation, were surprised by a slight fever; so slight, indeed, that neither the pulse nor the colour of the patient gave any signs of the approaching danger. The same, the next, or the succeeding day, it was declared by the swelling of the glands, particularly those of the groin, of the arm-pits, and under the ear; and when these buboes or tumours were opened, they were found to contain a coal, or black substance, of the size of a lentil. If they came to a just swelling and suppuration, the patient was saved by this kind and natural discharge of the morbid humour. But if they continued hard and dry, a mortification quickly ensued, and the fifth day was com→ monly the term of his life. The fever was often accompanied with lethargy or delirium; the bodies of the sick were covered with black pustules or carbuncles, the symptoms of immediate death; and in the constitutions too feeble to produce an irruption, the vomiting of blood was followed by a mortification of the bowels. To pregnant women the plague was generally mortal: yet one infant was drawn alive from his dead mother, and three mothers survived the loss of their infected fœtus. Youth was the most perilous season; and the female sex was less susceptible than the male but every rank and profession was attacked with indiscriminate rage, and many of those who escaped were deprived of the use of their speech, without being secure from a return of the disorder (91). The physicians of Constantinople were zealous and skilful; but their art was baffled by the various symptoms and pertinacious vehemence of the disease; the same remedies were productive of contrary effects, and the event capriciously disappointed their prognostics of death or recovery, The order of funerals, and the right of sepulchres, were confounded; those who were left without friends or servants, lay unburied in the streets, or in their de→ solate houses; and a magistrate was authorised to collect the promiscuous heaps of dead bodies, to transport them by land or water, and to inter them in deep pits beyond the precincts of the city. Their own danger, and the prospect of public distress, awakened some remorse in the minds of the most vicious of mankind: the confidence of health again revived their passions and habits; but philosophy must disdain the observation of Procopius, that the lives of such men were guarded by the peculiar favour of fortune or providence. He forgot, or perhaps he secretly recollected, that the plague had touched the person of Justinian himself; but the abste (91) Thucydides (c. 51.) affirms, that the infection could only be once taken; but Evagrius, who had family experience of the plague, observes, that some persons, who had escaped the first, sunk under the second attack; and this repetition is confirmed by Fabius Paullinus (p. 588.). I observe, that on this head physicians are divided; and the nature and operation of the disease may not always be similar. Extent and duration, A. D. 542-594. mious diet of the emperor may suggest, as in the case of Socrates, a more rational and honourable cause for his recovery (92). During his sickness, the public consternation was expressed in the habits of the citizens; and their idleness and despondence occasioned a general scarcity in the capital of the East. Contagion is the inseparable symptom of the plague; which, by mutual respiration, is transfused from the infected persons to the lungs and stomach of those who approach them. While philosophers believe and tremble, it is singular, that the existence of a real danger should have been denied by a people most prone to vain and imaginary terrors (93). Yet the fellow-citizens of Procopius were satisfied, by some short and partial experience, that the infection could not be gained by the closest conversation (94); and this persuasion might support the assiduity of friends or physicians in the care of the sick, whom inhuman prudence would have condemned to solitude and despair. But the fatal security, like the predestination of the Turks, must have aided the progress of the contagion; and those salutary precautions to which Europe is indebted for her safety were unknown to the government of Justinian. No restraints were imposed on the free and frequent intercourse of the Roman provinces: from Persia to France, the nations were mingled and infected by wars and emigrations; and the pestilential odour which lurks for years in a bale of cotton was imported, by the abuse of trade, into the most distant regions. The mode of its propagation is explained by the remark of Procopius himself, that it always spread from the sea-coast to the inland country: the most sequestered islands and mountains were successively visited; the places which had escaped the fury of its first passage were alone exposed to the contagion of the ensuing year. The winds might diffuse that subtle venom; but unless the atmosphere be previously disposed for its reception, the plague would soon expire in the cold or temperate climates of the earth. Such was the universal corruption of the air, that the pestilence which burst forth in the fifteenth year of Justinian was not checked or alleviated by any difference of the seasons. In time, its first malignity was abated and dispersed; the disease alternately languished and revived; but it was not till the end of a calamitous period of fifty-two years, (92) It was thus that Socrates had been saved by his temperance, in the plague of Athens ( Aul. Gellius, Noct. Attic. ii. 1.). Dr. Mead accounts for the peculiar salubrity of religious houses, by the two advantages of seclusion and abstinence (p. 18, 19.). (93) Mead proves that the plague is contagious, from Thucydides, Lucretius, Aristotle, Galen, and common experience (p. 10-20.); and he refutes (Preface, p. ii.-xiii.) the contrary opinion of the French physicians who visited Marseilles in the year 1720. Yet these were the recent and enlightened spectators of a plague which, in a few months, swept away 50,000 inhabitants (sur la Peste de Marseille, Paris, 1786) of a city that, in the present hour of prosperity and trade, contains no more than 90,000 souls (Necker, sur les Finances, tom. i. p. 231.). (94) The strong assertions of Procopius-outs yàp laTp outs idioty—are overthrown by the subsequent experience of Evagrius. that mankind recovered their health, or the air resumed its pure and salubrious quality. No facts have been preserved to sustain an account, or even a conjecture, of the numbers that perished in this extraordinary mortality. I only find, that during three months, five, and at length ten, thousand persons died each day at Constantinople; that many cities of the East were left vacant, and that in several districts of Italy the harvest and the vintage withered on the ground. The triple scourge of war, pestilence, and famine, afflicted the subjects of Justinian; and his reign is disgraced by a visible decrease of the human species, which has never been repaired in some of the fairest countries of the globe (95). CHAPTER XLIV.* Idea of the Roman Jurisprudence. The Laws of the Kings. The Twelve Tables of the Decemvirs. The Laws of the People. - The Decrees of the Senate. - The Edicts of the Magistrates and Emperors. - Authority of the Civilians. - Code, Pandects, Novels, and Institutes of Justinian : - I. Rights of Persons. - II. Rights of Things. — III. Pri-vate Injuries and Actions. IV. Crimes and Punishments. Roman Law. THE vain titles of the victories of Justinian are crumbled into The Civil or dust: but the name of the legislator is inscribed on a fair and everlasting monument. Under his reign, and by his care, the civil jurisprudence was digested in the immortal works of the CODE, the PANDECTS, and the INSTITUTES (1): the public reason of the Ro (95) After some figures of rhetoric, the sands of the sea, &c, Procopius (Anecdot. c. 18.) attempts a more definite account : that μυριάδας μυριάδων μυρίας had been exterminated under the reign of the Imperial demon. The expression is obscure in grammar and arithmetic; and a literal interpretation would produce several millions of millions. Alemannus (p. 80.) and Cousin (tom. iii. p. 178.) translate this passage, "two hundred millions;" but I am ignorant of their motives. If we drop the μυριάδας, the remaining μυριάδων μυρίας, a myriad of myriads, would furnish one hundred millions, a number not wholly inadmissible. (1) The civilians of the darker ages have established an absurd and incomprehensible mode of quotation, which is supported by authority and custom. In their references to the Code, the Pandects, and the Institutes, they mention the number, not of the book, but only of the law; and content themselves with reciting the first words of the title to which it belongs; and of these titles there are more than a thousand. Ludewig (Vit. Justiniani, p. 268.) wishes to shake off this pedantic yoke; and I have dared to adopt the simple and rational method of numbering the book, the title, and the law.t 6 bände, Heidelberg, 1815. IV. Walther, Rö- * In the notes to this important chapter, which is received as the text book on Civil Law in some of the foreign universities, I have consulted, I. the newly discovered Institutes of Gaius (Gaii Institutiones, ed. Goeschen, Berlin, 1824.), with some other fragments of the Roman law (Codicis Theodosiani Fragmenta inedita, ab Amadeo Peyron. Turin, 1824). II. The History of the Roman Law, by Professor Hugo, in the French transla--M. tion of M. Jourdan, Paris, 1825. III. Savigny, The example of Gibbon has been followed by Geschichte des Römischen Rechts im Mittelalter, M. Hugo and other civilians.-H. mans has been silently or studiously transfused into the domestic institutions of Europe (2), and the laws of Justinian still command the respect or obedience of independent nations. Wise or fortunate is the prince who connects his own reputation with the honour and interest of a perpetual order of men. The defence of their founder is the first cause, which in every age has exercised the zeal and industry of the civilians. They piously commemorate his virtues; dissemble or deny his failings; and fiercely chastise the guilt or folly of the rebels, who presume to sully the majesty of the purple. The idolatry of love has provoked, as it usually happens, the rancour of opposition; the character of Justinian has been exposed to the blind vehemence of flattery and invective; and the injustice of a sect (the Anti-Tribonians) has refused all praise and merit to the prince, his ministers, and his laws (3). Attached to no party, interested only for the truth and candour of history, and directed by the most temperate and skilful guides (4), I enter (2) Germany, Bohemia, Hungary, Poland, and Scotland, have received them as common law or reason; in France, Italy, &c. they possess a direct or indirect influence; and they were respected in England, from Stephen to Edward I. our national Justinian (Duck, de Usu et Auctoritate Juris Civilis, l. ii. c. 1. 8-15. Heineccius, Hist. Juris Germanici, c. 3. 4. No. 55-124. and the legal historians of each country).* (3) Francis Hottoman, a learned and acute lawyer of the xvith century, wished to mortify Cujacius, and to please the Chancellor de l'Hopital. His Anti-Tribonianus (which I have never been able to procure) was published in French in 1609; and his sect was propagated in Germany (Heineccius, Op. tom. iii. sylloge iii. p. 171-183.).+ (4) At the head of these guides I shall respectfully place the learned and perspicuous Heineccius, a German professor, who died at Halle in the year 1741 (see his Eloge in the Nouvelle Bibliothèque Germanique, tom. ii. p. 51-64.). His ample works have been collected in eight volumes in 4to, Geneva, 1743-1748.. The treatises which I have separately used are, 1. Historia Juris Romani et Germanici, Lugd. Batav. 1740, in 8vo. 2. Syntagma Antiquitatum Romanam Jurisprudentiam il lustrantium, 2 vols. in 8vo. Traject. ad Rhenum. 3. Elementa Juris Civilis secundum Ordinem Institutionum, Lugd. Bat. 1751, in 8vo. 4. Elementa J. C. secundum Ordinem Pandectarum, Traject. 1772, in 8vo. 2 vols. *Although the restoration of the Roman law, introduced by the revival of this study iu Italy, is one of the most important branches of history, it had been treated but imperfectly when Gibbon wrote his work. That of Arthur Duck is but an insignificant performance. But the learned researches have thrown much light upon the matter. The Sarti, the Tiraboschi, the Fantuzzi, the Savioli, had made some very interesting inquiries; but it was reserved for M. de Savigny, in a work entitled "The History of the Roman Law during the Middle Ages," to cast the strongest light on this part of history. He demonstrates incontestably the preservation of the Roman law from Justinian to the time of the Glossators, who, by their indefatigable zeal, propagated the study of the Roman jurisprudence in all the countries of Europe. It is much to be desired that the author should continue this interesting work, and that the learned should engage in the inquiry in what manner the Roman law introduced itself into their respective countries, and the authority which it progressively acquired. For Belgium, there exists on this subject, (proposed by the Academy of Brussels in 1781,) a Collection of Memoirs, printed at Brussels in 4to. 1783, among which should be distinguished those of M. de Berg. M. Berriat Saint-Prix has given us hopes of the speedy appearance of a work in which he will discuss this question, especially in relation to France. M. Spangenberg, in his Introduction to the Study of the Corpus Juris Civilis, Hanover, 1817, 1 vol. 8vo. p. 86. 116., gives us a general sketch of the history of the Roman law in different parts of Europe. We cannot avoid mentioning an elementary work by M, Hugo, in which he treats of the History of the Roman Law from Justinian to the present time, 2d edit. Berlin, 1818.-W. Though there have always been many detractors of the Roman law, no sect of Anti-Tribonians has ever existed under that name, as Gibbon seems to suppose.-M. Our author, who was not a lawyer, was ne cessarily obliged to content himself with following the opinions of those writers who were then of the greatest authority; but as Heineccius, notwithstanding his high reputation for the study of the Roman law, knew nothing of the subject on which he treated, but what he had learned from the compilations of various authors, it happened that, in following the sometimes rash opi with just diffidence on the subject of civil law, which has exhausted so many learned lives, and clothed the walls of such spacious libraries. In a single, if possible in a short, chapter, I shall trace the Roman jurisprudence from Romulus to Justinian (5), appreciate the labours of that emperor, and pause to contemplate the principles of a science so important to the peace and happiness of society. The laws of a nation form the most instructive portion of its history; and, although I have devoted myself to write the annals of a declining monarchy, I shall embrace the occasion to breathe the pure and invigorating air of the republic. kings of Rome. The primitive government of Rome (6) was composed, with some Laws of the political skill, of an elective king, a council of nobles, and a general assembly of the people. War and religion were administered by the supreme magistrate; and he alone proposed the laws, which were debated in the senate, and finally ratified or rejected by a majority of votes in the thirty curiæ or parishes of the city. Romulus, Numa, and Servius Tullius, are celebrated as the most ancient legislators; and each of them claims his peculiar part in the threefold division of jurisprudence (7). The laws of marriage, the education of children, and the authority of parents, which may seem to draw their origin from nature itself, are ascribed to the untutored wisdom of Romulus. The law of nations and of religious worship, which Numa introduced, was derived from his nocturnal converse with the nymph Egeria. The civil law is attributed to the experience of Servius: he balanced the rights and fortunes of the (5) Our original text is a fragment de Origine Juris (Pandect. 1. i. tit. ii.) of Pomponius, a Roman lawyer, who lived under the Antonines (Heinecc. tom. iii. syl. iii. p. 66-126.). It has been abridged, and probably corrupted, by Tribonian, and since restored by Bynkershoek (Opp. tom. i. p. 279-304.). (6) The constitutional history of the kings of Rome may be studied in the first book of Livy, and more copiously in Dionysius Halicarnassensis (1. ii. p. 80-96. 119-130. l. iv. p. 198-220.), who sometimes betrays the character of a rhetorician and a Greek.* (7) This threefold division of the law was applied to the three Roman kings by Justus Lipsius (Opp. tom. iv. p. 279.); is adopted by Gravina (Origines Juris Civilis, p. 28. edit. Lips. 1737.); and is reluctantly admitted by Mascou, his German editor.† nions of these guides, Gibbon has fallen into many errors, which we shall endeavour in succession to correct. The work of Bach on the History of the Roman Jurisprudence, with which Gibbon was not acquainted, is far superior to that of Heineccius; and since that time we have new obligations to the modern historic civilians, whose indefatigable researches have greatly enlarged the sphere of our knowledge in this important branch of history. We want a pen like that of Gibbon to give to the more accurate notions which we have acquired since his time, the brilliancy, the vigour, and the animation which Gibbon has bestowed on the opinions of Heineccius and his contempo raries.-W. * M. Warnkönig refers to the work of Beaufort, on the Uncertainty of the Five First Ages of the Roman History, with which Gibbon was pro- + Whoever is acquainted with the real notions |