XLIII. gence of Thucydides in the description of the plague of CHAP. Athens.90 The infection was sometimes announced by the visions of a distempered fancy, and the victim despaired as soon as he had heard the menace 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 commonly 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 eruption, 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."1 The physicians of Constantinople were use of the technical words. Yet many words that are now scientific, were common and popular in the Greek idiom. 90 See Thucydides, 1. ii c. 47....54. p. 127....133. edit. Duker, and the poetical description of the same plague by Lucretius (1. vi. 1136....1284) I was indebted to Dr. Her for an elaborate commentary on this part of Thucydides, a quarto of 600 pages (Venet. 1603, apud Juntas), which was pronous ced in St Mark's library by Fabius Palulinus Utinensis, a physician and philosopher. 1 91 Thucydides (c. 51.) affirms that the infection could only be once taken; but Evagrius, who had family experience of the plague, observes, CHAP. Extent and duration. A. D. zealous and skilful: but their art was baffled by the vari 92 Contagion is the inseparable symptom of the plague ; which, by mutual respiration, is transfused from the in542....594, fected 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 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. 92 It was thus that Socrates had been saved by his temperance in the plague of Athens (Aul. Gelins. 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 XLIII. were satisfied by some short and partial experience, that CHAP. the infection could not be gained by the closest conversation; 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, 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 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 (ur la Peste d: Marsseille, 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...ετε γαρ ιατρω ετε γαρ ιδιωτη are overthrown by the subsequent experience of Evarius. CHAP. 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 CHAP. The Civil CHAP. 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. Private Injuries and Actions......IV. Crimes and Punishments. THE vain titles of the victories of Justinian are crumbled into dust: but the name of the legislator is inscribed on a fair and everlasting monument. Under his reign, and or Roman by his care, the civil jurisprudence was digested in the immortal works of the Cons, the PANDECTS, and the INSTI TUTES:1 the public reason of the Romans has been silent law. 95 After some figures of rhetoric, the sands of the sea, &c. Procepius, Anecdot. c. 18), attempts a more definite account: that pupiadas μipiadav popias had been exterminated under the reign of the Imperiai dæmon. The xpression is obscure in grammar and arithmetic; and a literal interpretation would produce several nillions of millions. Alemanmus † 80.) and Cousin (tom. ii. p. 178, translate this passage two hu dre + quillions;" but I am ignorant of the.r motives. If we drop the popizdas, the remaining popiadwy pupias, a myriad of myriads, would fan i one hundred millins, a number not wholly inadmis "ble. 1 The civilians of the darker ages have cstarfished an absurd and incomprehensible mode of quotation, which is supported by authority and custom. ly or studiously ansfused into the domestic institutions of Europe, 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, I enter with just dif fidence 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 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. 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 Usû et Auctoritate Juris Civilis, 1. ii. c. 1. 8...15. Heineccius, Hist. Juris Germanici, c. 3, 4. No. 55...124. and the legal historians of each country). His 3 Francis Hottoman, a learned and acute lawyer of the xvith century, wished to mortify Cujacius and to please the Chancellor de l'Hopital. Anti-Tribonianus (which I have never been able to procure) was published in French in 1609; and his sect was propagated in Germany (Heineccius, Opp. 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 Haile in the year 1741 (see his Eloge in the Nouvelle Bibliotheque 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 Antiqui tatum Romanam Jurisprudentiam illustrantium, 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. CHAP. XLIV. |