126 Zofimus, 1. ii. p. 110. Before the end of the reign of Conftantius, the magifiri militum were already increased to four. Valefius ad Ammian. 1. xvi. c. 7.

See

127 Though the military counts and dukes are frequently mentioned, both in history and the codes, we must have recourfe to the Notitia for the exact knowledge of their number and ftations. For the inftitution, rank, privileges, etc. of the counts in general, fee Cod. Theod. 1. vi. tit. xii- -xx. with the Commentary of Godefroy.

128 Zofimus, 1. ii. p. III. The diftinction between the two claffes of Roman troops is very darkly expreffed in the hiftorians, the laws, and the Notitia. Confult, however, the copious paratitlon or abftract, which Godefroy has drawn up of the feventh book, de Re Militari, of the Theodofian Code, 1. vii. tit. i. leg. 18. L. viii. tit. i. leg 10.

129 Ferox erat in fuos miles et rapax, ignavus vero in hoftes et fractus. Ammian. 1. xxii. c. 4. He obferves that they loved downy beds and houses of marble; and that their cups were heavier than their fwords.

130 Cod. Theod. 1. vii. tit. i. leg. 1. tit. xii. leg. 1. See Howell's Hift. of the World, vol. ii. p. 19. That learned hiftorian, who is not fufficiently known, labours to justify the character and policy of Conftantine.

131 Ammian. 1 xix c. 2. He obferves (c. 5.), that the desperate fallies of two Gallic legions were like an handful of water thrown on a great conflagration.

132 Pancirolus ad Notitiam, p. 96. Mémoires de l'Académie des Infcriptions, tom. xxv. p. 491.

133 Romana açies unius prope formæ erat et hominum et armorum® genere, Regia acies varia magis multis gentibus diffimilitudine armorum auxiliorumque erat. T. Liv. 1. xxxvii. c. 39, 40. Flaminius, even before the event, had compared the army of Antiochus to a fupper, in which the flesh of one vile animal was diverfified by the skill of the cooks. See the life of Flaminius in Plutarch. 134 Agathias, 1. v. p. 157. edit. Louvre.

135 Valentinian (Cod. Theodof. I. vii. tit. xiii. leg. 3.) fixes the ftandard at five feet feven inches, about five feet four inches and a half English measure. It had formerly been five feet ten inches, and in the best corps fix Roman feet. Sed tunc erat amplior multitudo, et plures fequebantur militiam armatam. Vegetius de Re militari, 1. 1. c. 5. 136 See the two titles, De Veteranis, and De Filiis Veteranorum, in the feventh book of the Theodofian Code. The age at which their military fervice was required, varied from twenty-five to fixteen. If the fons of the veterans appeared with a horfe, they had a right to ferve in the cavalry; two horfes gave them fome valuable privileges. 137 Cod. Theod. 1. vii. tit. xiii. leg. 7. According to the hiftorian Socrates (fee Godefroy ad loc.), the fame emperor Valens fometimes required eighty pieces of gold for a recruit. In the following law it

is faintly expreffed, that slaves shall not be admitted inter optimas lectiffimorum militum turmas.

138 The perfon and property of a Roman knight, who had mutilated his two fons, were fold at public auction by the order of Auguftus. (Sueton. in Auguft. c. 27.) The moderation of that artful ufurper proves, that this example of feverity was juftified by the spirit of the times. Ammianus makes a diftinction between the effeminate Italians and the hardy Gauls. (L. xv. c. 12.) Yet only fifteen years afterwards, Valentinian, in a law addreffed to the præfect of Gaul, is obliged to enact that these cowardly deferters shall be burnt alive. (Cod. Theod 1. vii. tit. xiii. leg. 5.) Their numbers in Illyricum were fo confiderable, that the province complained of a scarcity of recruits. (Id. leg. 10.

139 They were called Murci, Murcidus is found in Plautus and Feftus, to denote a lazy and cowardly perfon, who, according to Arnobius and Auguftin, was under the immediate protection of the goddess Murcia. From this particular inftance of cowardice, murcare, is used as fynonimous to mutilare, by the writers of the middle Latinity. See Lindenbrogius, and Valefius ad Ammian. Marcellin. 1. xv. c. 12. 140 Malarichus adhibitis Francis quorum ea tempeftate in palatio multitudo florebat, erectius jam loquebatur tumultuabaturque. Ammian. 1. xv. c. 5.

141 Barbaros omnium primus, ad ufque fafces auxerat et trabeas confulares. Ammian. 1. xx. c. 10. Eufebius in Vit. Conftantin. 1. iv. e. 7. and Aurelius Victor feem to confirm the truth of this affertion; yet in the thirty-two confular Fafti of the reign of Conftantine, I cannot difcover the name of a fingle Barbarian I should therefore interpret the liberality of that prince, as relative to the ornaments, rather than to the office, of the confulship.

142 Cod. Theod. 1. vi tit. 8.

143 By a very fingular metaphor, borrowed from the military character of the firft emperors, the fteward of their household was ftyled the count of their camp (comes caftrenfis. Caffiodorius very feriously reprefents to him, that his own fame, and that of the empire, most depend on the opinion which foreign ambaffadors may conceive of the plenty and magnificence of the royal table. (Variar.

1. vi. epiftol 9.)

144 Gutherius (de Officiis Domûs Augufte, 1. ii. c. 20. 1. iii.) has very accurately explained the functions of the mafter of the offices, and the conftitution of his fubordinate fcrinia. But he vainly attempts, on the most doubtful authority, to deduce from the time of the Antonines, or even of Nero, the origin of a magiftrate' who cannot be found in history before the reign of Conftantine.

145 Tacitus (Annal. xi. 22.) fays, that the first quæftors were elected by the people, fixty-four years after the foundation of the republic; but he is of opinion, that they had, long before that period, been

annually appointed by the confuls, and even by the kings. But this obfcure point of antiquity is contefted by other writers.

146 Tacitus (Anual. xi. 22.) feems to confider twenty as the highest number of quæftors; and Dion 1. xliii. p. 374.) infinuates that if the dictator Cæfar once created forty, it was only to facilitate the payment of an immenfe debt of gratitude. Yet the augmentation which he made of prætors fubfifted under the fucceeding reigns.

147 Sueton. in Auguft. c. 65. and Torrent. ad loc. Dion. Caf. P. 755.

148 The youth and inexperience of the quæftors, who entered on that important office in their twenty-fifth year (Lipf. Excurf. ad Tacit. 1. iii. D.), engaged Auguftus to remove them from the management of the treasury; and though they were reftored by Claudius, they feem to have been finally difmiffed by Nero. (Tacit. Annal. xxii. 29. Sueton. in Aug. c. 36. in Claud. c. 24. Dion. p, 696. 961, etc. Plin. Epiftol. x. 20. et alib.) In the provinces of the Imperial divifion, the place of the quæftors was more ably fupplied by the procurators (Dion. Caf. p. 707. Tacit. in Vit. Agricol. c. 15.); or, as they were afterwards called, rationales. (Hift. Auguft. p. 130.) But in the provinces of the fenate we may ftill difcover a feries of quæftors till the reign of Marcus Antoninus (See the Infcriptions of Gruter, the Epiftles of Pliny, and a decifive fact in the Auguftan hiftory, p. 64.) From Ulpian we may learn, (Pandect, 1. i. tit. 13.) that under the government of the house of Severus, their provincial administration was abolished; and in the fubfequent troubles, the annual or triennial elections of quæftors must have naturally ceafed.

149 Cum patris nomine et epiftolas ipfe dictaret, et edicta confcriberet, orationefque in fenatu recitaret, etiam quæftoris vice. Sueton. in Tit. c. 6 The office must have acquired new dignity, which was occafionally executed by the heir apparent of the empire. Trajan entrusted the fame care to Hadrian his quæftor and coufin. See Dodwell Prælection. Cambden. x. xi. p. 362- -394.

Eloquio crevere tuo; nec dignius unquanı

Majeftas meminit fefe Romana locutam.

Claudian in Confulat. Mall. Theodor. 33, See likewife Symmachus (Epiftol. i. 17.) and Caffiodorius (Variar. vi. 5.) ↑

151 Cod. Theod. 1. vi. tit. 30. Cod. Juftinian. 1. xii. tit. 24.

15 In the departments of the two counts of the treafury, the eastern part of the Notitia happens to be very defective. It may be observed, that we had a treasury - cheft in London, and a gyneceum or manufacture at Winchefter. But Britain was not thought worthy either of a mint or of an arfenal. Gaul alone poffeffed three of the farmer, and eight of the latter.

153 Cod. Theod. 1. vi. tit. xxx. leg. 2. and Godefroy ad loc.

154 Strabon. Geograph. 1. xii. p. 809. The other temple of Comana, in Pontus, was a colony from that of Cappadocia, 1. xii. p. 825. The prefident Des Broffes (fee his Salufte, tom. ii. p. 21.) conjectures that the deity adored in both Comanas was Beltis, the Venus of the East, the goddess of generation; a very different being indeed from the goddess of war.

155 Cod. Theod. 1. x. tit. vi. de Grege Dominico. Godefroy has collected every circumftance of antiquity relative to the Cappadocian horfes. One of the finest breeds, the Palmatian, was the forfeiture of a rebel, whofe eftate lay about fixteen miles from Tyana, near the great road between Conftantinople and Antioch.

156 Juftinian (Novell. 30.) fubjected the province of the count of Cappadocia, to the immediate authority of the favourite eunuch, who prefided over the facred bedchamber.

157 Cod. Theod. 1. vi. tit. xxx. leg. 4, etc.

158 Pancirolus, p. 102. 136. The appearance of thefe military domeftics is defcribed in the Latin poem of Corippus, De Laudibus Juftin. 1. iii 157 179. P. 419, 420, of the Appendix Hift.

Byzantin. Rom. 1777.

159 Ammianus Marcellinus, who ferved fo many years, obtained only the rank of a Protector. The first ten among these honourable foldiers were Clariffimi.

160 Xenophon. Cyropæd. 1. viii. Briffon, de Regno Perfico, 1. is N° 190. p. 264. The emperors adopted with pleasure this Perfian metaphor.

161 For the Agentes in Rebus, fee Ammian. 1. xv. c. 3. 1. xvi. c. 5. 1. xxii. c. 7. with the curious annotations of Valefius. Cod. Theod. 1. vi. tit. xxvii, xxviii, xxix. Among the paffages collected in the Commentary of Godefroy, the most remarkable is one from Libanius, in his difcourfe concerning the death of Julian,

162 The Pandects (1. xlviii. tit. xvii. contain the fentiments of the most celebrated civilians on the fubject of torture. They ftrictly confine it to slaves; and Ulpian himself is ready to acknowledge, that Res eft fragilis, et periculofa, et quæ veritatem fallat.

163 In the confpiracy of Pifo against Nero, Epicaris (libertina mulier) was the only perfon tortured; the reft were intacti tormentis. It would be fuperfluous to add a weaker, and it would be difficult to find a ftronger, example. Tacit. Annal. xv. 57.

164 Dicendum . . de Inftitutis Athenienfium, Rhodiorum, doctiffimorum hominum, apud quos etiam (id quod acerbiffimum eft) liberi, civefque torquentur. Cicero. Partit. Orat. c. 34. We may learn from the trial of Philotas the practice of the Macedonians. (Diodor. Sicul. 1. xvii. p. 604. Q. Curt. 1. vi. c. 11.)

165 Heineccius (Element. Jur. Civil. part. vii. p. 81.) has collected thefe exemptions into one view.

166 This definition of the fage Ulpian (Paudect. 1, xlviii. tit. iv.)

feems to have been adapted to the court of Caracalla, rather than to that of Alexander Severus. See the Codes of Theodofius and Juftinian ad leg. Juliam majeftatis.

167 Arcadius Charifius is the oldeft lawyer quoted in the Pandects to justify the univerfal practice of torture in all cafes of treafon; but this maxim of tyranny, which is admitted by Ammianus (1. xix. c. 12.) with the most respectful terror, is enforced by feveral laws of the fucceffors of Conftantine. See Cod. Theod. 1. ix. tit. xxxv. In majeftatis crimine omnibus æqua eft conditio.

168 Montefquieu, Efprit des Loix, 1. xii. c. 13.

169 Mr. Hume (Effays, vol. i. p. 389.) has feen this important truth, with fome degree of perplexity.

17 The cycle of indictions, which may be traced as high as the reign of Conftantius, or perhaps of his father Conftantine, is ftill employed by the Papal court but the commencement of the year has been very reasonably altered to the first of January. See l'Art de Verifier les Dates, p. xi.; and Dictionnaire Raifon. de la Diplomatique, tom. ii. p. 25; two accurate treatifes, which come from the workshop of the Benedictines.

171 The first twenty-eight titles of the eleventh book of the Theodofian Code are filled with the circumftantial regulations on the important fubject of tributes; but they fuppofe a clearer knowledge of fundamental principles than it is at prefent in our power to attain.

172 The title concerning the Decurions (1. xii. tit. i.) is the most ample in the whole Theodofian Code; fince it contains not lefs than one hundred and ninety-two diftinct laws to afcertain the duties and privileges of that ufeful order of citizens.

173 Habemus enim et hominum numerum qui delati funt, et agrûm modum. Eumenius in Panegyr. Vet. viii. 6. See Cod. Theod. 1. xiii. tit. x. xi. with God froy's Commentary.

174 Siquis facrilegå vitem falce fucciderit, aut feracium Ramorum fœtus hebetaverit, quo declinet fidem Cenfuum, et mentiatur callide paupertatis ingenium, mox detectus capitale fubibit exitium, et bona ejus in Fifci jura migrabunt. Cod. Theod. 1. xiii. tit. xi leg. 1. Although this law is not without its ftudied obfcurity, it is, however, clear enough to prove the minuteness of the inquifition, and the dispropor tion of the penalty.

175 The aftonishment of Pliny would have ceafed. Equidem miror P. R. victis gentibus argentum femper imperitafle non aurum. Hift. Natur. xxxiii. 15.

176 Some precautions were taken (fee Cod. Theod. 1. xi. tit. ii. and Cod. Juftinian. 1. x. tit. xxvii. leg. 1, 2, 3.) to reftrain the magistrates from the abuse of their authority, either in the exaction or in the purchase of corn: but those who had learning enough to read the orations of Cicero against Verres (iii. de Frumento), might inftruct themselves in all the various arts of oppreffion, with regard to the