Assessors Voluntary exile and death W of acquittal, of condemnation, or of favourable doubt.208 Se His fame and fortunes t ca A Roman accused of any capital crime might prevent the pr sentence of the law by voluntary exile, or death. Till his guilt pi had been legally proved, his innocence was presumed, and his ex person was free: till the votes of the last century had been counted ex and declared, he might peaceably secede to any of the allied cities of Italy, or Greece, or Asia.209 were preserved, at least to his children, by this civil death; and ce 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. Α bolder effort was required to escape from the tyranny of the Cæsars; 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 despatch were recompensed by the applause of the public, the decent fe 208 We are indebted for this interesting fact to a fragment of Asconius Pedianus, who flourished under the reign of Tiberius. The loss of his Commentaries on the Orations of Cicero has deprived us of a valuable fund of historical and legal knowledge. 209 Polyb. 1. vi. p. 643 [c. 14]. The extension of the empire and city of Rome obliged the exile to seek a more distant place of retirement. The honours of burial, and the validity of their testaments.210 exquisite avarice and cruelty of Domitian appears 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.211 Yet the civilians have always respected the natural right of a citizen to dispose of his life; and the posthumous disgrace invented by Tarquin 212 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 is resolved on death; and his arm can only be restrained by the religious apprehension of a future state. Suicides are enumerated by Virgil among the unfortunate rather than the guilty;213 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, and condemn them to expect, without a murmur, the last stroke of disease or the executioner. civil juris. The penal statutes form a very small proportion of the sixty- Abuses of two books of the Code and Pandects; and, in all judicial pro- prudence ceeding, the life or death of a citizen is determined with less caution and 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 and marble but on the conscience of the offender, and his guilt is E 210 Qui de se statuebant, humabantur corpora, manebant testamenta; pretium festinandi. Tacit. Annal. vi. 25 [leg. 29], with the notes of Lipsius. 1 211 Julius Paulus (Sentent. Recept. L. v. tit. xii. p. 476), the Pandects (1. xlviii. tit. xxi.), the Code (1. ix. tit. L), Bynkershoek (tom. i. p. 59. Observat. J. C. R. iv. 4), and Montesquieu (Esprit des Loix, 1. xxix. c. 9) define the civil limitations of the liberty and privileges of suicide. The criminal penalties are the production of a later and darker age. 212 Plin. Hist. Natur. xxxvi. 24. When he fatigued his subjects in building the Capitol, many of the labourers were provoked to dispatch themselves; he nailed their dead bodies to crosses. *213 The sole resemblance of a violent and premature death has engaged Virgil (Æneid, vi. 434-439) to confound suicides with infants, lovers, and persons unjustly condemned. Heyne, the best of his editors, is at a loss to deduce the idea, or ascertain the jurisprudence, of the Roman poet. 510 DECLINE & FALL OF ROMAN EMPIRE 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 residence 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 Greek emperor of Constantinople and the East, was the legal successor of the Latian shepherd who had planted a colony on the banks of the Tiber. In a period of thirteen hundred 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 occasion 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 cadhi. 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. APPENDIX ADDITIONAL NOTES BY THE EDITOR 1. AUTHORITIES THE history of the reign of Leo I. and Zeno (in three Books) was written by CANDIDUS the Isaurian. He held the post of clerk or secretary to influential Isaurians; such is the vague phrase of Photius, who in the Bibliotheca (cod. 79) gives a short notice of the writer and a summary of the contents of his work. He was an orthodox Christian. Besides the account in Photius (Müller, F. H. G. iv. p. 135), we have probably three fragments in the Lexicon of Suidas: (a) sub xeipigo (Müller, ib. 137); (8) the first part of the article Appáros (assigned by Niebuhr to Malchus but) vindicated for Candidus by Toup and Shestakov; (v) the first part of the article Baσiλiokos, plausibly assigned to Candidus by Shestakov (B and y are printed under Malchus in Müller, ib. p. 116, 117). But the work of Candidus can be further traced in the chronicles of later writers, who made use (directly or indirectly) of his history. This has been shown by Shestakov in his paper Candid Isavriski (Lietopis ist.-phil. obschestva, Odessa, 1894, Viz. Otd. 2, p. 124-149), of which he promises a continuation. This is the most important study of Candidus that has yet appeared. Shestakov analyses the account of the great fire in Leo's reign given by our authorities, and shows that, while Evagrius drew (through Eustathius) from Priscus, Zonaras and Cedrenus drew from Candidus (who probably made use of Priscus too); and he applies the same method to the stories of Aspar's fall and the expedition of Basiliscus. It had already been recognized that the fragments of John of Antioch numbered 210 and 211 in Müller (F. H. G. iv. 618 sqq.) depended on Candidus; this is also probably true of the Escurial fragment of the same writer, 214 C in Müller (ib. v., cp. Shestakov, p. 125). Shestakov traces Candidus in Zonaras, Cedrenus, Nicephorus Callistus, and makes it probable that his history was consulted by Procopius and Theodore Lector. Pamprepius, the philosopher, a friend of the general Illus who revolted against Zeno, also wrote a book on Isaurian history; and the same subject was treated by Capito the Lycian, who translated the history of Eutropius into Greek. See Müller, F. H. G. iv. p. 123. It may be added that a notice bearing on the chronology of the revolt of Verina and Illus has been recently discovered in a curious work by a contemporary astrologer named Palchus. An account of this work is given by M. F. Cumont in the Revue de l'instruction publique en Belgique, 1897, vol. xl. p. 1. It contains a horoscope of the coronation of Leontius, the puppet emperor whom the rebels set up in Syria, and who was crowned at Tarsus, A.D. 483. The date given is the 24th of Epiphi = 19th July, whereas Theophanes gives 27th June. MALCHUS of Philadelphia wrote, under Anastasius, a continuation of the 1 Cp. especially p. 148-9. But Shestakov makes one inaccurate statement. Our sole authority for the place to which Basiliscus, on his return from Africa, was removed, namely, Heraclea (Perinthus), is Nicephorus Callistus (p. 80 C). Shestakov states that we find him there afterwards, in Theodore Lector, p. 180 A (Migne), and in John Ant. fr. 210; and (p. 149) ascribes to John of Antioch the statement that Basiliscus is at Heraclea, where he has an interview with Illus and conspires with him against Zeno. The place is mentioned by Theodore (and Theophanes) but not by John. The name Heraclea or Perinthus does not occur in the fragment. (511) history of Priscus, covering the years A.D. 474 to 480. (So Photius. Bib Cod 78; but Suidas gives the work a wider extent-from Constantine I. to Anastasius). He was indifferent to religion, like Priscus and Procopius, but did not attack Christianity, so that Photius charitably regarded him as within the pale of Christendom. He censured the vices of Zeno with great severity. [Frag ments (preserved in the Excerpta de legationibus of Constantine Porph, and in Suidas) in Müller's F. H. G. iv. p. 111 sqq. Also in Dindorf's Hist. Grac minores.] EUSTATHIUS of Epiphania wrote, under Anastasius, a history from the earliest times to the 12th year of Anastasius; he died in that year (A.D. 502). He is known through Evagrius, who used him largely, and through Malalas (p. 398-9, ed. Bonn). For the fifth century he used the work of Priscus. [Müller, F. H. G. iv. p. 138 sqq.] A Panegyric on the Emperor Anastasius by the rhetor PROCOPIUS OF Gaza is printed in the same vol. of the Bonn. Script. Byzant., as Dexippus, Eunapius Malchus, &c. Here will also be found a poetical encomium in Latin on the same Emperor by PRISCIAN. Both these panegyrics laud the financial relief which the government of Anastasius gave to the Empire. HESYCHIUS illustris, of Miletus, wrote under Justinian: (1) a universal history coming down to the death of Anastasius (A.D. 518), of which almost nothing has been preserved but a long fragment relating to the early history of Byzantium (árpia Kwvotavτivovñólews, in Codinus, ed. Bonn, p. 16 sqq.); (2) a history of the reign of Justin and the first years of Justinian; nothing of this survives, a loss deeply to be regretted; (3) a lexicon of famous literary people; some fragments of this are preserved in Photius and Suidas. The short biographical dictionary ascribed to Hesychius is not genuine, but a much later compilation. This pseudo-Hesychius was edited by J. Flach, 1880, and is included in Müller's ed. of the Fragments (F. H. G. iv. 143 sqq.). THEODOROS Anagnostes (Lector) wrote, under Justin and in the early years of Justinian, (1) a Historia tripartita, founded on Socrates, Sozomen and Theodoret, coming down to A.D. 439; and (2) a continuation of this, Historia ecclesiastica, to the beginning of Justinian's reign. Neither work is extant. Some fragments from (1) are contained in a Paris Ms., and have been published by Cramer, Aneed. Paris. ii. p. 87 sqq.; but these fragments were derived not from the original work, but from a Collection of excerpts which was used by the chronographer Theophanes. Other fragments have been found in an Oxford Ms. (Barocc. 142) and were used by de Boor for his edition of Theophanes. Of (2), fragments have been edited by Valois (at end of his ed. of Theodoret, Evagrius, and Philostorgius, p. 551 sqq., 1673), Cramer (b.), Müller (Revue Archéologique, nouv. série, 1873, t. 26, 396 sqq.), and some others have been found in Codinus and the Anony mous Banduri by V. Sarrazin, whose monograph, De Theodoro Lectore (in the Commentationes Philol. Jenenses, 1881, vol. 1), is the most important study of Theodorus, especially as a source of Theophanes. Sarrazin has shown (p. 193 sqq.) that some of the fragments of Valois and Cramer are not from Theodore but from John Diacrinomenos, who was one of the sources of Theodore. He has also given reasons for holding that Theophanes used a Collection of Excerpts in the case of this work too; that the Müller fragments are remains of that Collection; and that the Cramer and Valois fragments represent Excerpts from that Collection, not from the original work. A treatise on the civil service (Tepi apxŵv, De magistratibus), written by an official, JOHN of Philadelphia, generally described as "the Lydian" (LYDUS), was first published in 1812 by Hase (reprinted in Bonn ed.). His work, which gives a history of the Prætorian Prefecture under Anastasius, Justin, and Justinian, is of immense importance for the study of the administration in the sixth century. He bitterly complains of the decline of the service and the reduction of its emoluments. Of Justinian he always speaks in terms of the highest praise; but his account of the career of John of Cappadocia, on whom he throws most of the blame for the degradation of the civil service, bears out the representations of Procopius. But Lydus carefully and repeatedly warns his readers that Justinian a |