Page:Decline and Fall of the Roman Empire vol 3 (1897).djvu/385

 OF THE EOMAN EMPIEE 365 ful villany of the minister himself ; who retained sense and spirit enough to abhor the instrument of his own crimes. The pubhc hatred and the despair of individuals continually a cmei and threatened^ or seemed to threaten^ the personal safety oftS'ason.^A.!!). Eutropius ; as well as of the numerous adherents who were ^^' *^* * attached to his fortune and had been promoted by his venal favour. For their mutual defence, he contrived the safeguard of a law, which violated ever)-- principle of humanity and justice.^^ I. It is enacted, in the name and by the authority of Arcadius, that all those who shall conspire, either with subjects or with strangers, against the lives of any of the persons whom the emperor considers as the members of his own body, shall be punished with death and confiscation. This species of fictitious and metaphorical treason is extended to protect, not only the illusirioHS officei's of the state and army, who are admitted into the sacred consistory, but likewise the principal domestics of the palace, the senators of Constantinople, the military com- manders, and the civil magistrates of the provinces : a vague and indefinite list, which, under the successors of Constantine, included an obscure and numerous train of subordinate minis- ters. II. This extreme severity might perhaps be justified, had it been only directed to secure the representatives of the sove- reign from any actual violence in the execution of their office. But the whole body of Imperial dependents claimed a privilege, or rather impunity, which screened them, in the loosest moments of their lives, from the hasty, perhaps the justifiable, resentment of their fellow-citizens ; and, by a strange perversion of the laws, the same degree of guilt and punishment was applied to a private quarrel and to a deliberate conspiracy against the em- peror and the empire. The edict of Arcadius most positively and most absurdly declares that in such cases of treason thoughts and actions ought to be punished with equal severity ; that the knowledge of a mischievous intention, unless it be instantly revealed, becomes equally criminal with the intention itself ; ^^ 18 See the Theodosian Code, 1. ix. tit. 14, ad legem Corneliam de Sicariis, leg. 3, and the Code of Justinian, 1. ix. tit. viii. ad legem Juham de Majestate, leg. 5. The alteration of the title, from murder to treason, was an improvement of the subtle Tribonian. Godefroy, in a formal dissertation which he has inserted in his Commentary, illustrates this law of Arcadius, and explains all the difficult pas- sages which had been perverted by the jurisconsults of the darker ages. See torn, iii. p. 88-111. 18 Bartolus understands a simple and naked consciousness, without any sign of approbation or concurrence. For this opinion, says Baldus, he is now roasting in hell. For my own part, continues the discreet Heineccius (Element. Jur. Civil. 1. iv. p. 411), I must approve the theory of Bartolus ; but in practice I should