CHAP. XX.] OF THE ROMANS. 423 all that Procopius says upon this subject in his Secret History; for the magnificent eulogies upon Justinian which we find in his other works weaken his testi- mony in this, wherein he paints the emperor as the most stupid and the most cruel of tyrants. But I confess that two considerations induce me to accept the Secret History. The first is that its representa- tions harmonize best with the astonishing weakness of the empire at the end of this reign and during those which followed. The other is suggested by a monument which still exists — the laws of this em- peror— ^from which we see that jurisprudence varied more in the course of a few years than it has done during the last three centuries of our monarchy. These changes are for the most part in connection with matters of such little importance " that we are unable to discover any reason which should have induced a legislator to make them — unless, indeed, we resort for explanation to the Secret History, and conclude that this prince sold equally his judgments and his laws.
But that which inflicted the greatest injury upon the political status of the government was the pro- ject of Justinian to reduce all men to the same opinion in matters of religion — and this, too, under circumstances which rendered his zeal wholly in- discreet.
Whereas the ancient Eomans had strengthened " See the Novels of JttsHnian.
424: GEANDEUE AND DECADENCE [montesquieu.
their empire by tolerating every species of worship, it was at length reduced to nothing, by cutting off, one after another, the religious sects which were not dominant.
These sects were entire nations. Some of them, after having been conquered by the Romans, had still preserved their ancient religion — as, for example, the Samaritans and the Jews. Others were dispersed through particular countries. Thus, the sectaries of Montanus were scattered over Phrygia, whilst the Manichseans, the Sabatians, and the Arians were distributed in other provinces. Besides these, a large part of the rural population were yet idolaters — in- fatuated with a religion as gross as themselves.
Justinian destroyed these sects by the sword or by his laws. In driving them to revolt, he entailed upon himself the necessity of exterminating them; and thus many provinces were laid waste. He be- lieved that he had increased the number of the faith- ful; he had only diminished the number of men.
Procopius informs us that by the destruction of the Samaritans Palestine became a desert; and a singular interest is lent to this fact by the circum- stance that, through zeal for religion, the empire was thus weakened upon the very side by which, some reigns later, the Arabs penetrated for the purpose of destroying it.
It is in the last degree discouraging to know that, while the emperor carried his intolerance so far, he CHAP. XX.] OF THE ROMANS. 425 did not himself agree with the empress upon the most essential points of doctrine; he followed the council of Chalcedon; she favored those who tvere opposed to that council — whether, as Evagrius says, this opposition of views existed in good faith, or was the result of design."
When we read Procopius's account of the edifices of Justinian, and consider the strongholds and the fortifications which he caused to be erected all over the empire, we are constantly under the influence of an idea — ^but a very false one — that we are contem- plating a flourishing state.
At flrst the Komans had no fortified places. They relied wholly upon their armies, which they posted upon the shores of the rivers, along which, from point to point, they built towers for the lodgment of the soldiers. But when they no longer had good armies — when often they even had none at aU — the frontier ceasing to defend the interior, it became necessary to fortify; and then there were more strongholds and less strength, more retreats and less security." The country being no longer inhabitable =» Book IV, ch. X.
=» Book IV, ch. X.
*' Augustus had established nine frontiers or marches. Under the succeeding emperors the number of these was increased. The barbarians sliowed themselves where they had not appeared before; and Dion, in Book LV, relates that in his time — under the reign of Alexander — there were thirteen. We see by an account of the state of the empire, written after the time of Arcadius and Honorius, that there were fifteen in the Eastern empire alone. The number constantly increased. Pamphylia, Lycaonia, and Pisidia became marches; and the whole empire was cov- ered with fortifications. Aurelian had been obliged to fortify Rome.
426 GRANDEUR AND DECADENCE [montesquieu.
except in the neighborliood. of fortilied places, these were multiplied everywhere. It was the same as in France during the time of the Normans;'''' and France was never so weak as when aU her towns were surrounded by walls.
Thus, the numerous fortifications which Justinian erected — the names of which cover entire pages in the work of Procopius — are only to be regarded as monuments of the weakness of the empire.
" And of the EnRlish.
BAKEB.] OF THE ROMANS. 427 NOTE BY THE TEANSLATOE.
In the whole course of the preceding chapter Montesquieu places a very low estimate upon Justin- ian, and accords him no credit whatever. A more accurate measure of justice would appear to be that, whilst in many respects the reign of this monarch should be condemned as weak, cruel, and despicable, his fame, on the other hand, should be regarded as in some degree redeemed by the care which he took — or allowed to be taken — to embody and perpetuate the Laws of the empire. The Code, the Pandects, and the Institutes are immortal monuments of ancient law; they constitute the principal nexus through which the juridical ideas of the Eomans are connect- ed in one unbroken whole with the juridical ideas of modern societies; and thus it is that the otherwise soiled and dishonored name of Justinian is irrevo- cably associated with a body of law the sphere of whose authority or influence is coextensive with the ancient and the present limits of civilization.
No conception of the " Grandeur " of the Eomans can be complete which does not include some estimate ^28 GRANDEUR AND DECADENCE [bakeb.
of the comparative value of tlieir system of law on the plane of universal history. It is remarkable that Montesquieu — himself a lawyer and a judge — should have made so capital an omission.
In the career of a great nation, certain conse- quences of an exceptional character ought to be found connected with an exceptionally wide range of do- minion and power.
One of the results of the prodigious expansion of the Kepublic and Empire, and the consequent magni- tude and number of the social facts which entered into the aggregate of the Roman national life, was that the intellectual development of Rome, in the province of historical thought, was probably superior to that of Greece herself.'
Another result of the same general cause was that, in the province of law, the Eomans stood be- yond the reach of comparison with any other ancient people. Progressively absorbing as they did all the civilized nations of Europe, Africa, and Southwest- ern Asia, their genius for administration and civil rule, lite their power in arms, became supreme. Their system of law was more thoroughly cogitated, more composite and mature, more universal in the grasp of its principles, and more rational in the com- position of its parts into a single whole, than any other juridical system known to antiquity; and the resiilt is that the purely legal influence exerted by NOTE.] OF THE ROMANS. 429 the Roman law upon modern societies is mucli great- er tlian that which comes from all other ancient sources together.
The law of the Romans — like their empire — had its infancy, its growth, its culmination, and decline. Combining the analysis of Gibbon and the prefatory emendation thereof made by Professor Hugo, the history of Roman jurisprudence may be divided into four periods, quite distinct in their general charac- ter, and differing but little in length of time.
The first period — extending from the foundation of the city to the adoption of the Twelve Tables — embraces about 303 years; the second — extending from the adoption of the Twelve Tables to the T)irth of Cicero — ^includes 348 years; the third — extending from the birth, of Cicero to the close of the reign of Alexander Severus — embraces 342 years; and the fourth — extending from the 'tieath of Alexander Severus to the death of Justinian — covers a space of 330 years. The first of these periods is Hugo's; the last three, Gibbon's.'
1. During the first of these epochs the Roman law was in its stage of semi-savage infancy. Tow- ards the close of the epoch it may have been in some part written; but it certainly consisted mainly of unwritten customs down to the end of the pe- riod. The Jus Papirianum — so named from its 430 GKANDEUE AND DECADENCE [bakes.
reputed compiler, Papirius — was the most ancient written collection of Koman law for wMch ttere is any claim; and it is supposed to date from about the time of the expulsion of the kings. Its authen- ticity is doubted by Gibbon, and asserted by ISTie- buhr. Among the Komans, as among other ancient nations, the date of the first employment of letters by the legislator is vague and indeterminate; and the very fact that the case is so marks the doubt- - ful interval as one during which both the manners and the laws of the nation were yet in a very rude state."
2. At the opening of the second epoch the law was fixed in a written code — that is, in the famous Twelve Tables — which, according to the theory of the Koman lawyers, as tersely expressed by Livy, became "the fountain of all pubhc and all private rights" — fons omnis 2)utUci, privaUque juris. In the entire course of this epoch there is yet no name which rises to the first order of eminence in connec- tion with the law as a science apart. Jurisprudence was not yet sufficiently differentiated from arms to admit of this; and Cato the Censor may be taken as the typical representative of the jurisconsults of the period — proud, ignorant, narrow, and barren.
3. The third epoch was — to use the words of Gribbon — "the learned and splendid age of juris- prudence." It is during this period that we find al- ' Idem, p. 302, and notes; ArnoM'a History of Rome, oh. xiy.
KOiE.] OF THE ROMANS. 431 most the whole of the jurisconsults of the highest order — Quintus Mucius, Cervidius Scsevola, Servius Sulpitius, Gaius, Papinian, Paulus, and Ulpian.
4. The fourth epoch was one of decline in the law, and it is only adorned by a solitary name which may claim eminence of the first order — ^that of Tribonian, the presiding genius of the Code, the Pandects, and the Institutes, of Justinian.
In allusion to the studies of the-'Koman lawyers, and in view of "the multitude of voluminous civil- ians," Gibbon thinks " it is evident that such studies may be pursued, and such works may be performed, with a common share of judgment, experience, and industry." "The genius of Cicero and Vir- gil," he adds, "was more sensibly felt, as each re- volving age had been found incapable of producing a similar or a second; but the most eminent teachers of the law were assured of leaving disciples equal or superior to themselves in merit and reputation." * This opinion of Gibbon appears to be open to criticism. Diligent dullness, dealing with the law as an empirical art, may indeed do much in a purely. practical way; and the reputations thus made are as numerous as they are short-lived and cheap. But, supreme rational intelligence is probably as rare in the domain of the law as it is in other fields of thought; and the Koman jurists who have been set apart as first-class by the common consent of the * Vol. iv, p. 321.
432 GRANDEUR AND DECADENCE [baker.
learned, in all countries are scarcely more numerous than tlie great Latin poets and orators.
Viewed as a single phenomenon, developing in time, the Eoman law is deeply marked by two fun- damental characters. On the one hand, it is largely made up of "survivals" from the barbarous state of society in which it took its origin; and on the other, it gradually drew to itself and appropriated more enlightened principles of justice.
Of the first sort, we have good illustrations in the power which the law gave to the father to sell his children or to put them to death; in the like power, coupled with the one-sided and absolute lib- erty of divorce, which it gave to the husband over the wife; in the power of life and death which it gave to the master over his slaves; and in the power which it conferred upon creditors either to cut in pieces the body of their insolvent debtor, or to sell him into slavery among foreigners. These, and sim- ilar elements of Eoman law, are striking instances of savage "survival," carried along by the state in its advance from its rude primitive condition, and grad- ually falling into desuetude as its civilization im- proved.'
Of the second sort, we have a fine illustration in the capital legal conception that all human law ought 'Table IV, 1; Cooper's Justinian, Phila., 1812, p. 411; Table IIT, 6; Gibbon's Some, vol. iv, pp. 348, S'72, and notes 106 and 178 to ch.
NOTE.] OP THE KOMANS. 433 to be brought into conformity with the law of nat- ure— a recognition of the " Higher Law " which laid at the foundation of the great and solid jural prog- ress which the Eomans made. It may be added that, as regards liberty, the theory of the Eoman law was even superior to the theories of the most eminent of the Greek philosophers. Plato, in his ideal Eepuhlic, simply recommends— for an expedient reason— that there should be no slaves of Hellenic blood. Aristo- tle regards liberty and slavery as conditioned upon capacity, — nature, in his view, designing some men for a state of slavery, and others for a state of free- dom. But the Roman lawyers rose to the simple and uniform conception that, by the Law of Ifature, Liberty is the status of all men, and that slavery, in contravention of this law, derived its origin from the usages of war; "for wars ensued, and from these sprang captivity and slavery, which are contrary to natural justice; for by the law of nature all men are bom free.""
These great jural conceptions — ^by which the Law of Nature is held up as the ideal standard of all legal excellence, and by which that law is inter- preted as the perpetual sanction of Universal Lib- erty— must take their place among the most pre- cious products of civilization; and they have exerted ' Bella etenim oria sunt, el captivilates secuics, et servitwfes, quae sun naiuralijw'i conirarim: jure enim nalurali omnes Jwrmnes ah initio liheri nascehantur. Inst, lib. i, tit. ii, 2. 19 434 GRANDEUR AND DECADENCE [bakee.
a very deep and widespread influence upon modern societies.'
Thus, in the most comprehensive view which can be taken of the subject, Eoman law is to be regarded as a connecting link between the ancient Barbarism of Europe and modem Civilization. TJnder the one relation, it participates largely of the character im- pressed upon it by its rude origin; under the other, it anticipates much of what is best in modern law. Taken in connection with what went before, and what has come after, this system of law represents the middle stage of a vast progressive movement, of which the first stage is represented by the archaic legal ideas of primitive Europe, and the last by the riper legal development of existing societies.
BONiESQuiEU.] OF THE ROMANS. 435 CHAPTEE XXI.
DISOEDEES OF THE EASTEEN EMPIEE.
At the time whieli we have now reached, the Per- sians were in a better condition than the Romans. They had little to fear from the nations of the I^orth,' for they were separated from the latter by that part of Mount Taurus which extends between the Caspian and the Pontus-Euxine; and this mountain-chain was only traversed by a single narrow gap, which was closed by a gate ' and held by the Persians. This was the only route by which cavalry could pass. In at- tempting to penetrate at any other point, the barba- rians were compelled to descend precipices, and thus to abandon their horses, which constituted their en- tire force; and they were-et-ill further arrested by the Araxes, a deep river flowing from west to east, the passes of which were easily defended.'
In addition to this, the Persians were quiet on their eastern frontier; they were bounded on the south by the sea; and they could readily keep alive ' The Huns. ' The Caspian gates.
' Peocopius, War of (lie Persians, lib. i.
436 GKANDEUK AND DECADENCE [montesquieu.
the divisions which existed among the Arabic princes, whose only thought was to pillage each other. Prop- erly speaking, therefore, they had no enemy but the Romans. " "We know," said an embassador of Hormis- das, " that the Romans are occupied with many wars, and have to contend against nearly all nations; they know, on the contrary, that we have no wars except with themselves." * ' In proportion as the Romans had neglected, the Persians had cultivated, the military art. " The Per- sians," said Belisarius to his soldiers, " do not surpass you in courage; they only have the advantage of you in discipline." '■ They had acquired the same superi- ority in negotiation as in war. Under pretext that they maintained a garrison at the Caspian gates, they demanded tribute of the Romans — as if it did not devolve upon each nation to guard its own frontiers. They exacted pay for peace, for suspensions of arms, for the time consumed in negotiations, and for the time spent in war.
The Avars having crossed the Danube, the Ro- mans, most of the time, had no troops to oppose them; ' Mnbassies of Mmmider.
' Hormisdas was a Persian prince, who became a fugitive, and wa3 contemporary with Constantine, Constantius, and Julian. — TnANSLATOB.
' In riew of the fact that these so-called Romans were still engaged in so many more wars than the Persians, it may seem strange that the latter had come to be superior to the former in military discipline; the expla- nation lies in the fact that the old Roman stock, discipline, and spirit, had well-nigh disappeared, and that the material of the armies of the empire was greatly iuf jrior to what it had been in former times. — Translator.
CHAP. XXI.] OF THE ROMANS. 437 and, occupied as they were with the Persians when it was necessary to meet the Avars, and with the Avars when it was necessary to arrest the Persians, they were again forced to subnait to a tribute; and thus the majesty of the empire was tarnished before the eyes of all nations.
The emperors Justin, Tiberius, and Maurice'' la- bored with care in defence of their country. The last possessed virtues; but these were debased by an ava- rice which was almost inconceivable in a great prince. For a half piece of silver per head the king of the Avars offered to return to him the prisoners he had taken; and, on his refusal, the Avar caused the pris- oners to be massacred. The Koman army, indignant at this act of cruel neglect, revolted. The greens being in a state of revolt at the same time, a centu- rion, named Phocas, was elevated to the empire; and the new emperor caused Maurice and his children to be put to death.
The history of the Greek empire — for it is thus that the Koman empire is named for the future — is nothing but a tissue of revolts, seditions, and perfidies. The subjects of the empire had not so much as an idea of the fidelity which is due to princes; and the succes- sion of the emperors was so interrupted that the title oi porphyrogenitus' — that is to say, born in the apart- ' These were immediate successors of Justinian. — Translatok. ' [This word, derived from the Greek, signifies born in tlie pur- pk. (P.)]
438 GEANDEUE AND DECADENCE [MONiESQniEiJ.
ment in wlucli the empresses were accouched — was a title of distinction which few of the princes of the different imperial families were able to assume.
All instrumentalities were good for the attainment of the empire. The imperial power was disposed of by the army, the clergy, the senate, the people of the country, the people of Constantinople, and the people of other cities.
The Christian religion having become dominant, many heresies grew up which it was necessary to con- demn. Arius having denied the divinity of the "Word, the Macedonians the divinity of the Holy Ghost, Nestorius the unity of the person of Jesus Christ, Eutyches his two natures, and the Monothe- lites his two wills, it became necessary to assemble councils against them; but, the decisions of these councils not having been at once universally re- ceived, many emperors were seduced into the accept- ance of condemned errors. And as there had never been a nation which hated heretics as violently as did the Greeks — ^who believed themselves to be polluted if they spoke to or dwelt with a heretic — it thus came to pass that many emperors lost the affection of their subjects; and the people fell into the habit of thinking that princes, who were so often rebels against God, could not have been chosen by Providence to govern them.
A certain opinion, derived from the idea that it was not proper to shed the blood of Christians, and CHAP. XXI.] OP THE ROMANS. 439 wMcli became more firmly established after the ap- pearance of Mohammedanism, led to the infliction of light punishments for such crimes as did not di- rectly involve the interests of religion. Justice was content with putting out the eyes, or cutting off the nose or hair, or with mutilating in some manner the persons of those who had excited a revolt or at- tempted the life of 'the prince.' Such acts could be committed without danger, and even without courage."
A certain respect for the imperial ornaments caused the people to turn their eyes at once upon those who dared to assume them. It was a crime to wear, or to have in one's house, stuffs of a purple color; but immediately a man clothed himself in this color he was followed, the regard of the people attaching to the regalia rather than to the person.
Ambition was still further stimulated by a strange mania which prevailed during these times. There was hardly any considerable man towards whom ' Zeno contributed much to establish this relaxation of punishments. See Malohug, Byzantine History^ m the Excerpt of the Embassies.
'° I am unable to see immunity from danger where the offender, (or the holder of coveted power,) was liable to have his nose cut off, his tongue cut out, or his eyes seared with a red-hot iron. The degen- erate Greeks did these things with great facility. The emperor Philip- picua was taken in a drunken sleep at noonday, and " bound, blinded, and deposed, before he was sensible of his danger." Martina and He- racleonas — the widow and the son of the emperor Heraclius — were con- demned by the senate, the one to lose her tonffiie, the other his nose: not very light punishments, to be sure! (See Gibbon's Some, toI. iv, pp. 673, 674, 581.)— Tbanslatob.
440 GRANDEUR AND DECADENCE, [montesquieu.
some prediction did not point wUch promised him the empire.
The maladies of the human mind do not easily rectify themselves. Among the Christians judicial astrology and the art of predicting the iutme by means of objects seen in a basin of water had suc- ceeded the abolished Pagan art of predicting by the entrails of victims or by the flight of birds." As vain predictions supplied the motive for most of the rash enterprises of private individuals, so they were deemed to constitute the wisdom of the counsel of princes.
As the misfortunes of the empire increased day by day, men were naturally led to attribute the re- verses which befell in time of war, and the shameful treaties which were made in time of peace, to the bad conduct of those who governed.
Eevolutions gave rise to revolutions, and effects became causes. As the Greeks had seen so many different families pass successively to the throne, they were attached to none; and, as fortune had taken emperors from all conditions in life, there was no birth 80 low, or merit so slender, as to extinguish the hope of attaining the empire.
Many examples, approved by a nation, form its general spirit and constitute its manners; and these reign as imperiously as laws.
It would seem that great enterprises may be more " See NiCETAS, Life of Andronicus Comnenus.
CHAP. XXI.] OF THE ROMANS. 441 difficult to manage among us than they were among the ancients. -They can no longer be conducted with much concealment; for the communication which now exists between nations is such that every prince has ministers at the courts of all others, and is liable to find betrayers in every cabinet.
The introduction of the postal service has caused news to fly with rapidity, and to diffuse itself every- where.
As great enterprises cannot be carried on with- out money, and as, since the introduction of bills of exchange, merchants are masters of that, their affairs are very often connected with secrets of state, and they neglect no means of penetrating them.
' Yariations in the value of exchange, which take place without any known cause, prompt many persons to enquire for the secret, and they find it in the end.
The invention of printing, which has placed books in the hands of everybody; the discovery of the art of engraving, which has rendered geographi- cal maps so common; and, finally, the establishment of political journals — constitute a sufficient means of intelligence upon general interests to enable every individual to become all the more easily enlightened upon matters which are secret.
State conspiracies have become difficult; for, since the introduction of the postal service, all particular secrets are within the power of the public."
■' This statement, unless taken with very considerable qualification, 442 GEANDEUE AND DECADENCE [montesqtjieu.
Princes can act with promptitude, for they hold the forces of the state in their hands; conspirators are obliged to act slowly, for they are wanting in all sorts of resources; but at the present time, when everything is brought to light with more facility and promptness, the least loss of time in the preparation of a conspiracy is sufficient for its discovery."
is much more in harmony with the past political genius of France than it is with the ideas of Englishmen and Americans. — Translator.
'' The Nihilistic conspirators of Eussia seem to baffle all the im- proTed modern appliances for detection to which Montesquieu refers — and more besides. — Translatos.
BAKER.] OF THE ROMANS. 443 NOTE BY THE TKANSLATOE.
DoimTLESs it is true, as Montesqiiieu suggests, that enterprises of a secret character were, as a gen- eral rule, much more easily conducted to a successful issue in ancient than they are in modem times. Eut why he should dignify undertakings of this kind with the distinction of "great enterprises" {grandes entreprises) is not very apparent. The secret, crimi- nal intrigues of Roman praetorians or Greek courtiers, by -which the empire was so often transferred sud- denly from one tyrant to another, must take their place among the most ignoble transactions of human history; and nothing that is ignoble should be ac- counted great.
All such enterprises, however, as are truly great, are executed with much more facility in modern than they were in ancient times — as may be readily shown.
1. Our superior knowledge of the forces of na- ture, combined with our superior appliances for the utilization of these forces, imparts to modern times a much larger and more diversified store of physical 444 GRANDEUR AND DECADENCE [bakee.
resources than had place in the societies of an- tiquity.
2. The mental results which enter into our pres- ent civilization being at once greater in their variety and sum, and more extensively distributed, it thence follows that our time is also more richly endowed with intellectual resources.
3. The beneficial reflex action of the two preced- ing elements upon man's moral sentiments — aided by the direct influence of the immense superiority of Christianity over the polytheism of ancient times — has had the efEect furthermore of giving to modern societies a greater store of moral resowrces.
From these premises it would seem to follow: Firstly, that every species of enterprise which is in accord with the interests of civilization can now be dispatched with much more promptness and ease' than was possible in ancient times.
Secondly, that those enterprises which depend upon secrecy and concealment — and which, therefore, as a class, carry with them some odor of moral sus- picion— are, as a rule, more difficult to manage under the broad lights of the present day than they were among the ancients.
In estimating the general movement of history, the double conclusion just reached is of very high rational value. As the world's civilization develops, its forces and its motives become not only more efficient^ but also more overt.
MONTESQUIEU.] OF THE ROMANS. 445 OHAPTEE XXII.
WEAKNESS OF THE EASTEEN EMPIRE.
Amid the confusion of things, Phocas being but badly established upon the throne of the East, He- raelius came from Africa and caused him to be put to death. The new emperor found the provinces in- vaded and the legions destroyed.