[Footnote 601: 'Gothorum laus est civilitas custodita.']

'(6) You are also accused of insisting on buying the cargoes of vessels that come to the port at your own price [and selling again at a higher]--a practice the very suspicion of which is injurious to an official, even if it cannot be proved against him in fact[602].

Wherefore, if you wish to avoid the rumour of this deed, let the Bishop and people of the city come forward as witnesses on behalf of your conscience[603]. Prices ought to be fixed by the common deliberation [of buyer and seller]; since no one likes a commercial transaction which is forced upon the unwilling.

[Footnote 602: This seems a possible interpretation of a dark sentence: 'Navigiis vecta commercia te suggerunt occupare, et ambitu cupiditatis exosae solum antiqua pretia definire, quod non creditur a suspicione longinquum etiam si non sit actione vicinum.']

[Footnote 603: Is this a kind of compurgation which is here proposed?]

'Wherefore we have thought it proper to warn your Sublimity by these presents, since we do not like those whom we love to be guilty of excess, nor to hear evil reports of those who are charged with reforming the morals of others.'

[This is an important letter, especially when taken in connection with the words of Totila (Procopius, 'De Bello Gotthico' iii. 16), as to the exceptional indulgence with which the Gothic Kings had treated Sicily, 'leaving, at the request of the inhabitants, very few soldiers in the island, that there might be no distaste to their freedom or to their general prosperity.'

Gildias is evidently a Goth, and though a _Vir Spectabilis_ and holding a Roman office--the Comitiva Syracusanae Civitatis--still it is essentially a military office, and he has no business to divert causes from the Judices Ordinarii to his tribunal, though probably a Roman Comes might often do this without serious blame. But by his doing so, the general principle, that in purely Roman causes a Goth is not to interfere, seems to be infringed, and therefore he receives this sharp reprimand to prevent his doing it again.]

15. KING ATHALARIC TO POPE JOHN II (532).

[Sidenote: Against Simony at Papal elections.]

'The Defensor of the Roman Church hath informed us in his tearful pet.i.tion that lately, when a President was sought for the Papal chair, so much were the usual largesses to the poor augmented by the promises which had been extorted from the candidate, that, shameful to say, even the sacred vessels were exposed to sale in order to provide the necessary money[604].

[Footnote 604: 'Quosdam nefaria machinatione necessitatem temporis aucupatos, ita facultates pauperum extortis promissionibus ingrava.s.se, ut quod dictu nefas est, etiam sacra vasa emptioni publicae viderentur exposita.']

'Therefore let your Holiness know that by this present decree, which relates also to all the Patriarchs and Metropolitan Churches [the five Metropolitan Churches in Rome, and such Sees as Milan, Aquileia, Ravenna], we confirm the wise law pa.s.sed by the Senate in the time of the most holy Pope Boniface [predecessor of John II]. By it any contract or promise made by any person in order to obtain a Bishopric is declared void.

'Anyone refusing to refund money so received is to be declared guilty of sacrilege, and rest.i.tution is to be enforced by the Judge.'

'Should a contention arise as to an election to the Apostolic See, and the matter be brought to our Palace for decision, we direct that the maximum fee to be paid, on the completion of the necessary doc.u.ments (?), shall be 3,000 solidi [1,800][605]; but this is only to be exacted from persons of sufficient ability to pay it.

[Footnote 605: 'Et quia omnia decet sub ratione moderari, nec possunt dici justa quae nimia sunt, c.u.m de Apostolici consecratione Pontificis intentio forta.s.se pervenerit, et ad Palatium nostrum producta fuerit altercatio populorum, suggerentes (?) n.o.bis intra tria millia solidorum, c.u.m collectione cartarum censemus accipere.']

'Patriarchs [Archbishops of the other great Italian Sees] under similar circ.u.mstances are to pay not more than 2,000 solidi [1,200].

'No one is to give [on his consecration] more than 500 solidi [300]

to the poor.

'Anyone professing to obtain for money the suffrage of any one of our servants on behalf of a candidate for Papacy or Patriarchate, shall be forced to refund the money. If it cannot be recovered from him, it may be from his heirs. He himself shall be branded with infamy.

'Should the giver of the money have been bound by such oaths, that, without imperilling his soul, he cannot disclose the transaction, anyone else may inform, and on establishing the truth of his accusation, receive a third part of the money so corruptly paid, the rest to go to the churches themselves, for the repair of the fabric or for the daily ministry. Remember the fate of Simon Magus. We have ordered that this decree be made known to the Senate and people by the Praefect of the City.'

[I think the early part of this letter gives us the clue to the pretext under which these simoniacal practices were introduced. It was usual for the Pope on his election to give a certain sum of money to the poor. Then at a vehemently contested election certain of the voters--perhaps especially the priests of the different _t.i.tuli_ of Rome--claimed to be distributors of the Papal bounty, a large part of which they no doubt kept for themselves.]

16. KING ATHALARIC TO SALVANTIUS, VIR ILl.u.s.tRIS, PRAEFECT OF THE CITY.

[Sidenote: The same subject.]

Rehea.r.s.es the motives of the previous edict, and directs that both it and the Senatus Consulta having reference to the same subject [and framed two years previously], be engraved on marble tablets, and fixed up in a conspicuous place, before the Atrium of St. Peter the Apostle.

17. KING ATHALARIC TO THE SAME (BETWEEN 532 AND 534).

[Sidenote: Release of two Roman citizens accused of sedition.]

'We cannot bear that there should be sadness in Rome, the head of the world. We hear with regret from the Apostolic Pope John, and other n.o.bles, that A and B, who are Romans, on a mere suspicion of sedition are being macerated by so long imprisonment that the whole city mourns for them; no gladness of a holyday and no respect for the Papal name[606] (which is most dear to us) availing to mitigate their confinement. This treatment of persons against whom no crime has been proved distresses us much, and we admonish your Greatness, wherever you may succeed in finding them, to set them free. If, confident in their innocence, they think that they have been unjustly tormented, we give them liberty to make their appeal to the laws. Judges were raised to their high estate, not to oppress but to defend the innocent.

[Footnote 606: 'Nec ulla--quae apud nos est gratissima--nominis sui dignitas subveniret.' I think _sui_ must refer to the recently-mentioned _Papa Johannes_.]

'Now let the Romans return to their ancient gladness; nor let them think that any [rulers] please us but those who seek to act with fairness and moderation. Let them understand that our forefathers underwent labours and dangers that _they_ might have rest; and that we are expending large sums in order that they may rejoice with garrulous exultation. For even if they have before now suffered some rough and unjust treatment, let them not believe that that is a thing to be neglected by our Mildness. No; for we give ourselves no rest, that they may enjoy secure peace and calm gladness. Let them understand at once that _we_ cannot love the men whose excesses have made them terrible to our subjects. Whose favour do those men expect to win who have earned the dislike of their fellow-citizens? They might have reaped a harvest of the public love, and instead thereof they have so acted that their names are justly held in execration.'

18. THE EDICT OF ATHALARIC.

[This edict is minutely examined by Dahn ('Konige der Germanen' iv.

123-135). I have adopted his division of paragraphs, though rather disposed to think that the 'De Donationibus' should be broken up into two, to prevent counting the Epilogue as a section. See also Manso ('Geschichte der Ostrogothen' 405-415).]

[Sidenote: Edict of Athalaric.]

'_Prologue._ This edict is a general one. No names are mentioned in it, and those who are conscious of innocence need take no offence at anything contained therein.

'For long an ominous whisper has reached our ears that certain persons, despising _civilitas_, affect a life of beastly barbarism[607], returning to the wild beginnings of society, and looking with a fierce hatred on all human laws. The present seems to us a fitting time for repressing these men, in order that we may be hunting down vice and immorality within the Republic at the same time that, with G.o.d's help, we are resisting her external foes. Both are hurtful, both have to be repelled; but the internal enemy is even more dangerous than the external. One, however, rests upon the other; and we shall more easily sweep down the armies of our enemies if we subdue under us the vices of the age. [This allusion to foreign enemies is perhaps explained by the hint in Jordanes ('De Reb. Get.' 59) of threatened war with the Franks. But he gives us no sufficient indication of time to enable us to fix the date of the Edictum.]

[Footnote 607: 'Affectare vivere belluina saevitia.']

'I. _Forcible Appropriation of Landed Property_[608] (Pervasio). This is a crime which is quite inconsistent with _civilitas_, and we remit those who are guilty of it to the punishment[609] provided by a law of Divus Valentinia.n.u.s [Valentinian III. Novell. xix. 'De Invasoribus'], adding that if anyone is unable to pay the penalty therein provided he shall suffer banishment (deportatio). He ought to have been more chary of disobeying the laws if he had no means to pay the penalty. Judges who shrink from obeying this law, and allow the _Pervasor_ to remain in possession of what he has forcibly annexed, shall lose their offices and be held liable to pay to our Treasury the same fine which might have been exacted from him. If the _Pervasor_ sets the Judge's official staff (officium) at defiance, on the report of the Judge our Sajones will make _him_ feel the weight of the royal vengeance who refused to obey the [humbler] _Cognitor_.

[Footnote 608: 'Praedia urbana vel rustica.']

[Footnote 609: The punishment consisted in loss of all claim to the property--which was generally seized by someone who had some kind of ostensible claim to it--and a penalty of equal value with that of the property wrongfully seized.]

'II. _Affixing t.i.tles to Property._ [When land had from any cause become public property, the Emperor's officers used to affix _t.i.tuli_, to denote the fact and to warn off all other claimants. Powerful men who had dispossessed weaker claimants used to imitate this practice, and are here forbidden to do so.]

'This offence shall subject the perpetrator to the same penalties as _pervasio_. It is really a kind of sacrilege to try to add the majesty of the royal name to the weight of his own oppression. Costs are to be borne by the defeated claimant.

'III. _Suppression of Words in a Decree._ Anyone obtaining a decree against an adversary is to be careful to suppress nothing in the copy which he serves upon him. If he does so, he shall lose all the benefits that he obtained. We wish to help honest men, not rogues.

'IV. _Seduction of a Married Woman._ He who tries to interfere with the married rights of another, shall be punished by inability to contract a valid marriage himself. [This punishment of compulsory celibacy is, according to Dahn, derived neither from Roman nor German law, but is possibly due to Church influence.] The offender who has no hope of present or future matrimony[610] shall be punished by confiscation of half his property; or, if a poor man, by banishment.

[Footnote 610: 'Illis quos spes non habet praesentis conjugii vel futuri.' It is not easy to see how the Judge could ascertain whether a man belonged to this claim or not.]

'V. _Adultery_. All the statutes of the late King (divalis commonitio) in this matter are to be strictly observed. [Edict. Theodorici, -- 38, inflicted the penalty of death on both offenders and on the abettors of the crime.]

'VI. _Bigamy_ is to be punished with loss of all the offender's property.

'VII. _Concubinage._ If a married man forms a connection of this kind with a free woman, she and all her children shall become the slaves of the injured wife. If with a woman who is a slave already, she shall be subjected to any revenge that the lawful wife likes to inflict upon her, short of blood-shedding[611].

[Footnote 611: 'Quod si ad tale flagitium ancilla pervenerit, excepta poena sanguinis, matronali subjaceat ultioni: ut illam patiatur judicem, quam formidare debuisset absentem.' These provisions are probably of Germanic origin.]