From whatever she had been, Theodora became a matron whose imperial chastity no one impugned. She was avid of money and power, she sometimes gave way to an imperious temper, she occasionally intrigued to achieve ends opposed to Justinian’s. She slept much, indulged heartily in food and drink, loved luxury, jewelry, and display, spent many months of the year in her palaces on the shore; nevertheless Justinian remained always enamored of her, and bore with philosophic patience her interferences with his schemes. He had invested her uxoriously with a sovereignty theoretically equal to his own, and could not complain if she exercised her power. She took an active part in diplomacy and in ecclesiastical politics, made and unmade Popes and patriarchs, and deposed her enemies. Sometimes she countermanded her husband’s orders, often to the advantage of the state;11 her intelligence was almost commensurate with her power. Procopius charges her with cruelty to her opponents, with dungeon imprisonments and a few murders; men who seriously offended her were likely to disappear without trace, as in the political morals of our century. But she knew mercy too. She protected for two years, by hiding him in her own apartments, the Patriarch Anthemius, who had been exiled by Justinian for heresy. Perhaps she was too lenient with the adulteries of Belisarius’ wife; but to balance this she built a pretty “Convent of Repentance” for reformed prostitutes. Some of the girls repented of their repentance, and threw themselves from the windows, literally bored to death.12 She took a grandmotherly interest in the marriages of her friends, arranged many matches, and sometimes made marriage a condition of advancement at her court. As might have been expected, she became in old age a stern guardian of public morals.13
Finally she interested herself in theology, and debated with her husband the nature of Christ. Justinian labored to reunite the Eastern and the Western Church; unity of religion, he thought, was indispensable to the unity of the Empire. But Theodora could not understand the two natures in Christ, though she raised no difficulties about the three persons in God; she adopted the Monophysite doctrine, perceived that on this point the East would not yield to the West, and judged that the strength and fortune of the Empire lay in the rich provinces of Asia, Syria, and Egypt, rather than in Western provinces ruined by barbarism and war. She softened Justinian’s orthodox intolerance, protected heretics, challenged the papacy, secretly encouraged the rise of an independent Monophysite Church in the East; and on these issues she fought tenaciously and ruthlessly against emperor and pope.
III. BELISARIUS
Justinian can be forgiven his passion for unity; it is the eternal temptation of philosophers as well as of statesmen, and generalizations have sometimes cost more than war. To recapture Africa from the Vandals, Italy from the Ostrogoths, Spain from the Visigoths, Gaul from the Franks, Britain from the Saxons; to drive barbarism back to its lairs and restore Roman civilization to all its old expanse; to spread Roman law once more across the white man’s world from the Euphrates to Hadrian’s Wall: these were no ignoble ambitions, though they were destined to exhaust saviors and saved alike. For these high purposes Justinian ended the schism of the Eastern from the Western Church on papal terms, and dreamed of bringing Arians, Monophysites, and other heretics into one great spiritual fold. Not since Constantine had a European thought in such dimensions.
Justinian was favored with competent generals, and harassed by limited means. His people were unwilling to fight his wars, and unable to pay for them. He soon used up the 320,000 pounds of gold that Justin’s predecessors had left in the treasury; thereafter he was forced to taxes that alienated the citizens, and economies that hampered his generals. Universal military service had ceased a century before; now the imperial army was composed almost wholly of barbarian mercenaries from a hundred tribes and states. They lived by plunder, and dreamed of riches and rape; time and again they mutinied in the crisis of battle, or lost a victory by stopping to gather spoils. Nothing united or inspired them except regular pay and able generals.
Belisarius, like Justinian, came of Illyrian peasant stock, recalling those Balkan emperors—Aurelian, Probus, Diocletian—who had saved the Empire in the third century. No general since Caesar ever won so many victories with such limited resources of men and funds; few ever surpassed him in strategy or tactics, in popularity with his men and mercy to his foes; perhaps it merits note that the greatest generals—Alexander, Caesar, Belisarius, Saladin, Napoleon—found clemency a mighty engine of war. There was a strain of sensitivity and tenderness in Belisarius, as in those others, which could turn the soldier into a lover as soon as his bloody tasks were done. And as the Emperor doted on Theodora, so Belisarius adored Antonina, bore with melting fury her infidelities, and, for divers reasons, took her with him on his campaigns.
He won his first honors in war against Persia. After 150 years of peace between the empires, hostilities had been renewed in the old competition for control of the trade routes to Central Asia and India. Amid brilliant victories Belisarius was suddenly recalled to Constantinople; Justinian made peace with Persia (532) by paying Khosru Anushirvan 11,000 pounds of gold; and then sent Belisarius to win back Africa. He had concluded that he could never expect to make permanent conquests in the East: the population there would be hostile, the frontier difficult to defend. But in the West were nations accustomed for centuries to Roman rule, resenting their heretical barbarian masters, and promising co-operation in war as well as taxes in peace. And from Africa added grain would come to quiet the critical mouths of the capital.
Gaiseric had died (477) after a reign of thirty-nine years. Under his successors Vandal Africa had resumed most of its Roman ways. Latin was the official language, and poets wrote in it dead verse to honor forgotten kings. The Roman theater at Carthage was restored, Greek dramas were played again.14 The monuments of ancient art were respected, and splendid new buildings rose. Procopius pictures the ruling classes as civilized gentlemen touched with occasional barbarism, but mostly neglecting the arts of war, and decaying leisurely under the sun.15
In June, 533, five hundred transports and ninety-two warships gathered in the Bosporus, received the commands of the Emperor and the blessings of the patriarch, and sailed for Carthage. Procopius was on Belisarius’ staff, and wrote a vivid. account of the “Vandal War.” Landing in Africa with only 5000 cavalry, Belisarius swept through the improvised defenses of Carthage, and in a few months overthrew the Vandal power. Justinian too hastily recalled him for a triumph at Constantinople; the Moors, pouring down from the hills, attacked the Roman garrison; Belisarius hurried back just in time to quell a mutiny among the troops and lead them to victory. Carthaginian Africa thenceforth remained under Byzantine rule till the Arabs came.
Justinian’s crafty diplomacy had arranged an alliance with the Ostrogoths while Belisarius attacked Africa; now he lured the Franks into an alliance while he ordered Belisarius to conquer Ostrogothic Italy. Using Tunisia as a base, Belisarius without much difficulty took Sicily. In 536 he crossed to Italy, and captured Naples by having some of his soldiers creep through the aqueduct into the town. The Ostrogothic forces were meager and divided; the people of Rome hailed Belisarius as a liberator, the clergy welcomed him as a Trinitarian; he entered Rome unopposed. Theodahad had Amalasuntha killed; the Ostrogoths deposed Theodahad, and chose Witigis as king. Witigis raised an army of 150,000 men, and besieged Belisarius in Rome. Forced to economize food and water, and to discontinue their daily baths, the Romans began to grumble against Belisarius, who had only 5000 men in arms. He defended the city with skill and courage, and after a year’s effort Witigis returned to Ravenna. For three years Belisarius importuned Justinian for additional troops; they were sent, but under generals hostile to Belisarius. The Ostrogoths in Ravenna, besieged and starving, offered to surrender if Belisarius would become their king. He pretended to consent, took the city, and presented it to Justinian (540).
The Emperor was grateful and suspicious. Belisarius had rewarded himself well out of the spoils of victory; he had won the too-personal loyalty of his
troops; he had been offered a kingdom; might he not aspire to seize the throne from the nephew of a usurper? Justinian recalled him, and noticed uneasily the splendor of the general’s retinue. The Byzantines, Procopius reports, “took delight in watching Belisarius as he came forth from his home each day. … For his progress resembled a crowded festival procession, since he was always escorted by a large number of Vandals, Goths, and Moors. Furthermore, he had a fine figure, and was tall and remarkably handsome. But his conduct was so meek, and his manners so affable, that he seemed like a very poor man, and one of no repute.”16
The commanders appointed to replace him in Italy neglected the discipline of their troops, quarreled with one another, and earned the contempt of the Ostrogoths. A Goth of energy, judgment, and courage was proclaimed king of the defeated people. Totila gathered desperate recruits from the barbarians wandering homeless in Italy, took Naples (543) and Tibur, and laid siege to Rome. He astonished all by his clemency and good faith; treated captives so well that they enlisted under his banner; kept so honorably the promises by which he had secured the surrender of Naples that men began to wonder who was the barbarian, and who the civilized Greek. The wives of some senators fell into his hands; he treated them with gallant courtesy, and set them free. He condemned one of his soldiers to death for violating a Roman girl. The barbarians in the Emperor’s service showed no such delicacy; un-paid by the nearly bankrupt Justinian, they ravaged the country till the population remembered with longing the order and justice of Theodoric’s rule.17
Belisarius was ordered to the rescue. Reaching Italy, he made his way alone through Totila’s lines into beleaguered Rome. He was too late; the Greek garrison was demoralized; its officers were incompetent cowards; traitors opened the gates, and Totila’s army, ten thousand strong, entered the capital (546). Belisarius, retreating, sent a message asking him not to destroy the historic city; Totila permitted plunder to his unpaid and hungry troops, but spared the people, and protected the women from soldierly ardor. He made the mistake of leaving Rome to besiege Ravenna; in his absence Belisarius recaptured the city; and when Totila returned, his second siege failed to dislodge the resourceful Greek. Justinian, thinking the West won, declared war on Persia, and called Belisarius to the East. Totila took Rome again (549), and Sicily, Corsica, Sardinia, almost the entire peninsula. At last Justinian gave to his eunuch general Narses “an exceedingly large sum of money,” and ordered him to raise a new army and drive the Goths from Italy. Narses accomplished his mission with skill and dispatch; Totila was defeated and was killed in flight; the surviving Goths were permitted to leave Italy safely, and after eighteen years the “Gothic War” came to an end (553).
Those years completed the ruin of Italy. Rome had been five times captured, thrice besieged, starved, looted; its population, once a million, was now reduced to 40,000,18 of whom nearly half were paupers maintained by papal alms. Milan had been destroyed, and all its inhabitants killed. Hundreds of towns and villages sank into insolvency under the exactions of rulers and the depredations of troops. Regions once tilled were abandoned, and the food supply fell; in Picenum alone, we are told, 50,000 died of starvation during these eighteen years.19 The aristocracy was shattered; so many of its members had been slain in battle, pillage, or flight that too few survived to continue the Senate of Rome; after 579 we hear of it no more.20 The great aqueducts that Theodoric had repaired were broken and neglected, and again turned the Campagna into a vast malarial marsh, which remained till our time. The majestic baths, dependent upon the aqueducts, fell into disuse and decay. Hundreds of statues, surviving Alaric and Gaiseric, had been broken or melted down to provide projectiles and machines during siege. Only ruins bore witness to Rome’s ancient grandeur as capital of half the world. The Eastern emperor would now for a brief period rule Italy; but it was a costly and empty victory. Rome would not fully recover from that victory till the Renaissance.
IV. THE CODE OF JUSTINIAN
History rightly forgets Justinian’s wars, and remembers him for his laws. A century had elapsed since the publication of Theodosius’ Code; many of its regulations had been made obsolete by changing conditions; many new laws had been passed which lay in confusion on the statute books; and many contradictions in the laws hampered executives and courts. The influence of Christianity had modified legislation and interpretation. The civil laws of Rome often conflicted with the laws of the nations composing the Empire; many of the old enactments were ill adapted to the Hellenistic traditions of the East. The whole vast body of Roman law had become an empirical accumulation rather than a logical code.
Justinian’s unifying passion resented this chaos, as it chafed at the dismemberment of the Empire. In 528 he appointed ten jurists to systematize, clarify, and reform the laws. The most active and influential member of this commission was the quaestor Tribonian, who, despite venality and suspected atheism, remained to his death the chief inspirer, adviser, and executant of Justinian’s legislative plans. The first part of the task was accomplished with undue haste, and was issued in 529 as the Codex Constitutionum; it was declared to be the law of the Empire, and all preceding legislation was nullified except as re-enacted herein. The proemium struck a pretty note:
To the youth desirous of studying the law: The Imperial Majesty should be armed with law as well as glorified with arms, that there may be good government in times both of war and of peace; and that the ruler may … show himself as scrupulously regardful of justice as triumphant over his foes.21
The commissioners then proceeded to the second part of their assignment: to gather into a system those responso, or opinions of the great Roman jurists which still seemed worthy to have the force of law. The result was published as the Digesta or Pandectae (533); the opinions quoted, and the interpretations now given, were henceforth to be binding upon all judges; and all other opinions lost legal authority. Older collections of responsa ceased to be copied, and for the most part disappeared. What remains of them suggests that Justinian’s redactors omitted opinions favorable to freedom, and by impious fraud transformed some judgments of ancient jurists to better consonance with absolute rule.
While this major work was in process, Tribonian and two associates, finding the Codex too laborious a volume for students, issued an official handbook of civil law under the title of Institutiones (533). Essentially this reproduced, amended, and brought up to date the Commentaries of Gaius, who in the second century had with admirable skill and clarity summarized the civil law of his time. Meanwhile Justinian had been issuing new laws. In 534 Tribonian and four aides embodied these in a revised edition of the Codex; the earlier issue was deprived of authority, and was lost to history. After Justinian’s death his additional legislation was published as Novellae (sc. constitutiones)—i.e., new enactments. Whereas the previous publications had been in Latin, this was in Greek, and marked the end of Latin as the language of the law in the Byzantine Empire. All these publications came to be known as the Corpus iuris civilis, or Body of Civil Law, and were loosely referred to as the Code of Justinian.
This Code, like the Theodosian, enacted orthodox Christianity into law. It began by declaring for the Trinity, and anathematized Nestorius, Eutyches, and Apollinaris. It acknowledged the ecclesiastical leadership of the Roman Church, and ordered all Christian groups to submit to her authority. But ensuing chapters proclaimed the dominion of the emperor over the Church: all ecclesiastical, like all civil, law, was to emanate from the throne. The Code proceeded to make laws for metropolitans, bishops, abbots, and monks, and specified penalties for clerics who gambled, or attended the theater or the games.22 Manicheans or relapsed heretics were to be put to death; Donatists, Montanists, Monophysites, and other dissenters were to suffer confiscation of their goods, and were declared incompetent to buy or sell, to inherit or bequeath; they were excluded from public office, forbidden to meet, and disqualified from suing orthodox Christians for debt. A gentler enactment empowered bishops to visit prisons, and to protect prisoner
s from abuses of the law.
The Code replaced older distinctions of class. Freedmen were no longer treated as a separate group; they enjoyed at once, on their emancipation, all the privileges of freemen; they might rise to be senators or emperors. All freemen were divided into honestiores—men of honor or rank—and humiliores—commoners. A hierarchy of rank, which had developed among the honestiores since Diocletian, was sanctioned by the Code: patricii, illustres, spectabiles (hence our respectable), clarissimi, and gloriosi; there were many Oriental elements in this Roman law.
The Code showed some Christian or Stoic influence in its legislation on slavery. The rape, of a slave woman, as of a free woman, was to be punished with death. A slave might marry a free woman if his master consented. Justinian, like the Church, encouraged manumissions; but his law allowed a newborn child to be sold into slavery if its parents were desperate with poverty.23 Certain passages of the Code legalized serfdom, and prepared for feudalism. A freeman who had cultivated a tract of land for thirty years was required, with his descendants, to remain forever attached to that piece of land;24 the measure was explained as discouraging the desertion of the soil. A serf who ran away, or became a cleric without his lord’s consent, could be reclaimed like a runaway slave.
The status of woman was moderately improved by the Code. Her subjection to lifelong guardianship had been ended in the fourth century, and the old principle that inheritance could pass only through males had become obsolete; the Church, which often received legacies from women, did much to secure these reforms. Justinian sought to enforce the views of the Church on divorce, and forbade it except when one of the parties wished to enter a convent or monastery. But this was too extreme a departure from existing custom and law; large sections of the public protested that it would increase the number of poisonings. The later legislation of the Emperor listed a generous variety of grounds for divorce; and this, with some interruptions, remained the law of the Byzantine Empire till 1453.25 Penalties imposed by Augustus upon celibacy and childlessness were removed in the Code. Constantine had made adultery a capital crime, though he had rarely enforced the decree; Justinian kept the death penalty for men, but reduced the penalty for the woman to immurement in a nunnery. A husband might with impunity kill the paramour of his wife if, after sending her three witnessed warnings, he found her in his own house, or in a tavern, conversing with the suspected man. Similarly severe penalties were decreed for intercourse with an unmarried woman or a widow, unless she was a concubine or a prostitute. Rape was punished with death and confiscation of property, and the proceeds were given to the injured woman. Justinian not only decreed death for homosexual acts, but often added torture, mutilation, and the public parading of the guilty persons before their execution. In this extreme legislation against sexual irregularities we feel the influence of a Christianity shocked into a ferocious puritanism by the sins of pagan civilization.