Variae & Works 5 part 2/3

And, the order of law being preserved in all things, if the crime that is charged shall have been proven, let it be punished also by the strictness of those same laws, so that, by this kind of vengeance, the hidden and secret defendants may be deterred from such faults—men whom uncertain knowledge cannot drag to the laws. Concerning this matter we have directed precepts to the illustrious man Count Arigern, that, all violent defence being removed, if they hide themselves, he may drag the accused to judgement and, sitting with you in this cause, may neither cause the harmless to be oppressed nor suffer the criminous to escape the laws.

Although it behoves the discipline of the Roman city committed to you to be kept in all things, nevertheless you ought to be the more studious in those matters which you know to have been delegated to you by our authority, so that preserved justice may increase favour around you and you may take increases from our judgement—you who have hitherto pleased us by your integrity. The prefect of the city, therefore, has declared to us by his report that Basilius and Praetextatus, entangled in magic arts, are assailed by the accusation of many; whom he intimates to have escaped by the mental derangement of their guards.

We command that you lead them, wherever they are found, to the court of five men which our authority has delegated in the present business, where we decree that you sit, so that, all violent defence being removed, you may cause this cause to be examined and concluded by the laws. And if they shall have been convicted of the crime of which they are accused, let them undergo the sentence which the established laws have sanctioned. But if their innocence is assailed by detestable envy, suffer them by no reasoning to be oppressed, since in all causes we wish that to be done, by divine consideration, which augments the repute of our piety. They turn to gain which are conferred on the well-deserving, and from the very gift more is acquired, when worthy things are bestowed on the best.

Accordingly, from the tenor of your petition we have learned that certain places in the city of Spoletium, which the squalor of long-standing antiquity had already overshadowed, seek the splendour of restoration, so that, things being confused by age, a grown-up face of newness may be restored, and by your benefit those things may rise again revived which, inclined by their years, had fallen. This, out of regard for your merits and for the service rendered with long diligence, we have judged to be granted with a willing mind, so that both the just effect may be granted to the wishes of those who ask, and the adornment of restoration may grow for the city. And therefore we grant strength to your petition by present humanity, that you may possess, by absolute liberality, the portico with the little open plot behind the baths of Turasius, provided, however, that it does not serve public use:

since in the licence of restoration rewards are rather received than given. Supported therefore by this authority, take confidence to build in the aforesaid places, and fear no question in the future, since both the city's advantage protects you and the revered will of the prince. It is agreed that he presumes well of himself who desires to reach the summits of the sacred order. For merits suggest the striving of a good aspiration, and in the quality of desire an honourable mind can be known. For who, ignorant of the wrestler's art, would enter the stadium to wrestle? Or who would mingle in a contest which the consciousness of valour does not advise? In their very efforts those things grow sickly and languish which are not aided by the presumption of merits.

It is therefore a profession of praiseworthy things to have desired the fellowship of the highest, and he hands down a good judgement of himself who seeks the steps of lofty dignity. To these desires our piety willingly indulges itself, we who even in hope raise up languishing wishes, so that, while advancement is sought, the pursuits of uprightness may be the more loved. Accordingly, let Your Illustrious Magnificence take care to have Petrus—conspicuous by the light of his parents and already by his own gravity a senator—enrolled in the register of the sacred order according to ancient custom, so that both the number may profit so great an assembly, and the adornment of the candidate may grow from the sacred order. With a willing mind we preserve the ancient benefits around you, since we desire to bestow new ones for your advantages.

For humanity knows not how to keep bounds, and it is fitting to favour with new benefits things restored after long times. Accordingly, we grant by this authority the immunity which your region is agreed to have obtained by the privilege of princes, nor will we suffer anything of new presumption to be imposed on you, whom we wish to be vindicated from every grievance. Moreover, the princely munificence relaxes for you the census of the present year, so that you may receive even those things which it has not befallen you to request. For that is perfect piety which, before it is bent by prayers, knows how to consider the wearied. Every injury indeed is detestable, and whatever is committed against the laws is condemned by just execration:

but the worst of all evils is proven to be this, to suffer losses from the very quarter whence aids were believed to come. For cruelty turned to the contrary aggravates the fault, and unexpected deception adds a greater weight to the guilt. The respectable man Petrus, therefore, with a marvellous fate, has complained to us that the protection of the saio Amara, which we granted to him against violent men, was rather perpetrated upon himself, so that the obstruction of the doorposts somewhat retarded the blow of the sword plunged into him: a hand was exposed to the wound, which, that it might not fall wholly severed, the struck timbers of the doors preserved; where, the assault having spent itself, the flashing edge of the iron grazed the extremities of his body. O execrable mischance!

His own aid assailed the man, and, the prosperity of solace being withdrawn, the peril grew out of the defence; adding to these things far more bitter ones, so that, as though the injury came at a price, so his own crime was taxed by an enormous exaction. And therefore the anger of our piety justly rises against those who have turned kindly commands into truculent services. For what refuges will there be for suppliants, if even our benefits wound them? Accordingly, by present command we decree that whatever the aforewritten Amara received under the name of profit from the cases of the said suppliant, being constrained by you as an ungrateful assailant, he be compelled to pay him double; for it is fitting that what is agreed to have been extorted by wicked rashness be restored under penalty.

But concerning the wound which the rash presumer inflicted with a drawn sword, let the oft-named saio, under your compelling, come to the judgement of Count Duda to be heard, so that, according to the series of the edicts, he may, without any delay, make amends for what shall have become clear to have been wickedly committed. But to the one petitioning for protection against uncivil assaults, you shall, by our command, grant it with civility preserved—not by the example of the accused, but by consideration of one fittingly chosen. We approve the conscience to which we commit things to be judged, since he is worthy among others to decide what is to be followed, who is seen to have imposed upon himself the measure of a lawful manner of life.

Petrus therefore, a respectable man, asserts that our saio Amara, who was dispatched—with a contrary omen—for his protection, wounded him with a drawn sword and made himself a defendant in a way scarcely an enemy could have dared. This we wish you both to ascertain by lawful disputation and to conclude by a sound sentence, so that no one may dare to attempt what he knows to displease us. If the authority of your place were considered, if the regard for Roman reverence, you ought of your own accord to have sought after those things in which you are blamed. For what at the present time could you have thought so proper to the urban summit as the increases of the senate, since it profits the fame of the prelate, what the sacred order acquires?

But, as much as the report sent by the most renowned man Armentarius testifies, on the contrary, with base ambition you seek advantages from delay—you whose part it was agreed to be to wish for the senate's increases. For what could be more unfitting than, our commands having been dispatched, to suspend the wishes of suppliants, and, after the utterance of a sacred precept, to have—if it is right to say it—still suspended the royal judgement? But we, to whose heart it is, after a first fault, not at once to desire vengeance, turn our commands rather into an admonition, lest our strictness be excessive, which gentle patience does not precede.

And therefore by present authority we decree that no craftiness of delay be brought against our commands, since he who, being admonished, transgresses has no place for pardon. It befits indeed all men to think of the increases of their fatherland, but most of all those whom the commonwealth has bound to itself with the highest honours, since it is the reason of things that he must needs owe more who is seen to have undertaken greater things. By the supplication you have put forth, you have testified that licence be granted for structures to be superimposed upon the Curved Portico, which, placed next to the House called Palmata, fittingly encloses the forum in the manner of an open court, so that both the dwelling of private houses may be extended and the appearance of newness may grow upon the ancient walls.

So it comes about that what could decay through neglect is seen to be sustained by the diligence of those who remain; for the ruin of buildings is easy when the watchfulness of inhabitants is withdrawn, and quickly is dissolved, by the seething decay of age, what the presence of men does not protect. Wherefore we, who desire the city to be adorned with the brightness of rising structures, grant the requested faculty—provided, however, that the thing requested neither obstructs the public utility nor the decorum. Wherefore lean securely upon the things you hope for, so that you may appear a worthy inhabitant for Roman structures, and the completed work may praise its author. For there is no thing through which both the genius of a prudent man and the effect of liberality can be better recognized.

What the intention of prudent men is seen to have undertaken ought to be brought to completion, since, just as completed things bring forth praise, so those things generate reproach which are sickly abandoned in the midst of their efforts. For a failure of things proves either that counsel wavered or that strength was lacking. Wherefore let Your Sanctity, fleeing from such detraction, cause speedily to come to completion what, in restoring the aqueduct with praiseworthy care, you undertook by our authority. For what is more apt than that a most holy priest should provide waters for a thirsting people, and that human providence should satisfy those whom he ought even to have fed with miracles?

For you imitate most ancient Moses, who, for the Israelite people dried up by long aridity, drew copious streams from the barrenness of the rock and, to fulfil the miracle, made moist liquids run from where there was dry hardness. But you, if you lead in irrigating springs by the construction of stonework, bestow on the peoples by this labour of yours what he bestowed by miracles. Since in all causes we wish justice to be preserved, because the love of equity is the glory of the realm, in those especially which are set forth in the name of our treasury let no detestable calumny afflict us who reign with odium. For we suffer ourselves to be overcome, with equity preserved, by the laws, so that amid arms we may ever be able to be victors. For he whom a subject lawfully surpasses, one does not conquer in war against oneself.

From the report of Marinus, therefore, we have learned that the property of Tufa was deposited with one John, formerly, under the issue of a written bond. And since it is manifest that what could pertain to the proscribed belongs to us, therefore by present authority we command that you, with moderate execution, summon the wife of the aforesaid John and his son Januarius. If they acknowledge that they unjustly retain what is claimed, let them restore it by consideration of equity; otherwise, a suitable bond having first been given, let them come to the consular of Campania to be heard according to the laws, so that, the parties being set in place before him, with you pressing on, what the form of the imperial sanctions contains may be adjudged:

yet in such a way that by no prejudgement, by no injury, by no loss may innocence be burdened, lest you seem to make another's odious accusation your own offence. The keeping of the laws is the token of civility, and reverence for former princes attests also the example of our devotion. For what is better than that the common people should wish to live under the precept of justice, so that the assembly of many disciplined men may be a uniting of wills? For this it was that gathered peoples from a wild life into the rule of human society. This principle divided them from savagery, lest those whom the Divine willed to be governed by counsel should wander by chance discretion.

By the petition you have presented you ask that the privileges be preserved for you which the foresight of ancient law decreed for Jewish observances; and this we gladly grant, for we desire that the rights of the ancients be kept in reverence among us. And therefore by the present authority we decree that whatever the statutes of the laws established concerning you shall be observed unimpaired, so that what has been found to serve the practice of civil order may be held with unbroken devotion. It is the way of wisdom to recall to human use the treasures hidden in the earth, and to assign commerce to the living rather than to the dead, since when buried these things perish even for us, and are left to those others to no advantage. For the wealth of mines is a solace to mankind.

For the vein of rich gold is like the rest of the earth if it lies idle: by use it grows in value, since even among the living those things are as if buried which are shut up in the hands of the grasping. And therefore by a measured command we decree that, under public attestation, you shall go to that place where many things are reported to lie hidden; and if gold, as is said, or silver shall be uncovered by your search, you shall faithfully claim it for the public benefit, yet on this condition: that you keep your hands from the ashes of the dead, for we do not wish gains to be sought which can be found through funereal crimes. Let buildings cover the ashes, let columns or marble adorn the tombs: but let not those hold treasures who have abandoned the commerce of the living.

For gold is justly drawn from tombs where it has no owner: indeed it is a kind of fault to leave it uselessly hidden with the dead, when by it the life of the living might sustain itself. For it is no greed to snatch away what no owner laments to have lost. For Aeacus is said to have first discovered gold, and Indus the king of Scythia silver, and to have handed them over to human use with the highest praise. We ought not, on the contrary, to neglect this, lest, just as these hidden things were brought to light with praise, so when found they should seem to be neglected with reproach. With deliberate foresight antiquity decreed that minors should not have binding contracts, so that both the snares of plotters might be frustrated, and the slippery age of those who fall might find relief.

For innocence would be overwhelmed if audacity were given free rein, and all would be intent on deceiving, if fraud could win a stealthy profit. And therefore, having submitted a petition according to ancient custom, you report that your patron, while still in his minority, rather heaped up losses for his own fortunes, since unknowing boyhood does the opposite of what it supposed would be beneficial; and that he is now of that age at which we may, on account of his ignorance, come to the aid of his fall, alleging that what the laws have granted, our benefits also should bestow.

And therefore, if your petition does not depart from the truth and falls within the span of years to which the most sacred laws have granted this benefit, and there is nothing that may justly be brought against it, our authority too permits that your patron, after the case has been duly examined, be solemnly restored to his full standing; yet on this condition: that everything be carried out according to justice and the laws, for we wish so to consult the interests of petitioners as not to oppress their adversaries by injustice. It belongs to a most provident prince to release from the tributary obligation those who have been gravely diminished, so that those who had failed, pressed by the bitterness of their losses, may be revived by renewed zeal to fulfil their dues. For if the burden is not at all lightened for the weary, by necessity he is seen to lie prostrate.

For it is better to disregard present losses than, for a meagre gain, to forfeit perpetual advantages. And therefore let your illustrious Magnificence know that we have remitted the public tax for the third indiction to the provincials of the Cottian Alps, whom our army, passing through after the manner of a river, oppressed while it watered. For although it broke forth in a roaring assembly for the general security, yet in passing it laid waste the cultivated fields of these people. For a river always scours its own bed, and although as it gently overflows it enriches the neighbouring lands, yet it renders barren the place into which, once gathered, it has flowed. Hence it was necessary to stretch out a saving hand to those cast down by the devastation of their community, lest the ungrateful should say that they alone perished for the defence of all:

Rather let those rejoice who afforded a road into Italy for its defenders. For tributes ought not to be exacted with sorrow from those through whom I have happily gained taxpayers. Let our spirit speak on their behalf what a subject cannot charge against his king. We bought the prosperity of the Goths at our own expense: we furnished what was needed, that the enemy might be conquered while we remained unharmed. It befits your prudence to apply diligent guardianship to the affairs of your subjects, since under your administration those things ought to be done which can display the royal presence. For we believe that, mindful of your birth, you cast from yourself all that is vicious, and can love those things alone which you know that we also love.

The examples of forefathers are perhaps blotted out, if the deeds of a long lineage are less recalled: but sons like their fathers soon follow upon their praises. Renatus, then, has complained to us with a tearful appeal that, by the judges you delegated, judgment was rendered in his favour against a woman named Inquilina after long intervals of time, and that, worn out by vigils and losses, he at last looked to your justice; yet that the litigant's shameless calumny does not cease, while with revived suits she pursues the poverty of the petitioner, so that she seems to have sought not so much the desire of winning as the ruin of her adversary.

Wherefore, if you recognize that judgment was given by your order and it is clear that the adversary did not lawfully appeal, cause the matter, lawfully concluded, to remain in its firmness, lest a long dispute of litigants not so much increase their patrimonies as overturn them, and what is done for the pursuit of gain should appear to be a cause of loss. Although we desire all parts of our commonwealth to be equally increased, yet the increase of fiscal tributes must be weighed with the most just judgment, since the diminution of those who serve is an addition to this contribution, and as much as that part profits, so much does this withdraw itself from stability.

But by us, who wish the advantage of the treasury to subsist with stable permanence, a costly excess must always be excluded, lest the sum, swollen with its own increase, should fail, and begin rather to be lacking, because it seemed to have grown monstrously. Accordingly let your illustrious Greatness know that the men of Gravasiana and Pontonata have petitioned us against Januarius, and also against Probus, unjust assessors, that they have been overburdened with imposts, since the hungry barrenness of their lands suffers no increases to be made for them. For when nature resists, any industry yields, nor does it profit to expend the zeal of labour where the richness of the soil is not known to assist it. There the assessment can be added where cultivation has prospered. Hence too come varied tributes, since the fertility of fields is not one and the same.

And therefore we decree that their former custom be restored to them, so that, just as in the time of Odovacar they paid their tributes, so now too let them serve the public needs by these; and if anything more is proved to have been added, in consideration of their failing strength we remove it. For we do not wish anything of the kind to be imposed which must needs be taken away. Among the other allurements by which the human race is solicited, the base ambition for the property of others is especially to be avoided, since, once flung out, it is borne into the immeasurable, unless it be pressed down by the weights of justice.

For divine Scripture too testifies that avarice is the root of all evils, which is punished by such a lot that, though it seizes much, it is always in want; and this, on account of the kinship of our race, we do not wish so to take root in your minds that we should grant it even its beginnings. For what do the filthiness of minds amid the splendour of birth? It rather befits you to choose that which can adorn us. Vulgar desire does not befit a man of Amal blood, since he beholds his lineage to be clothed in purple. Let us therefore correct you by the incitements of praise, in which we ought not as yet to be severe.

Domitius, then, a respectable man, has complained to us in a petition laid before us, that the possessions of his own right, that is, this one and that one, were seized by your men with disregard for the laws, when it ought to have been done in a civil manner, if it seemed by law to be demandable. But since we do not suffer that obscure reproaches be hurled longer against you, who shine with the brightness of your lineage, by the present authority we decree that, with our official Duda pressing the matter, if the circumstances of the moment support it, you cause the things lately seized, together with all that has been plundered, to be restored to the petitioner without any delay.

And if you believe that anything of the laws can support your side, it befits you to dispatch an instructed representative to our court, so that, when the claims of the parties have been examined under equity, a sentence may be passed which the authority of the law dictates. For it befits noble men to conduct all things under measured civility, since the odium of injury grows for the powerful in proportion as he who proves to be inferior in fortune is believed able to be oppressed. We are compelled to command certain things more strictly out of love of justice, while toward humbler fortunes the dispositions of our heart are gentler.

For he who could be subdued draws us to mercy, and his lowliness has this benefit, that, with proof preserved, it meanwhile moves us to grief, since cruelty raises up the humble, but odium presses down the more powerful. Having therefore offered your prayers, you allege that Basilius, a respectable man, lately obtained our precepts, that the possession of Arcinatina, which your patron had purchased with due formality of right from his wife Agapita, should, all delay set aside, be restored together with all the documents to the aforesaid wife, since he complained with tearful lament that his wife had been solicited from her own chambers:

adding that afterwards, according to our manner of justice, a precept was issued that, if your patrons presumed anything concerning the nature of the case, they should more quickly dispatch the matter to our court, so that the things which could be settled by reason might flow forth as if from the fountains of justice. Wherefore, if the assertions are vitiated by no falsehood, we decree that Basilius be admonished through the office of our see, that, if there is anything he can object on behalf of his side, so as not to be prosecuted in this case, he present himself to answer your claims, whether he prefer to come to court or to litigate in the competent forum, since we impose the necessity of distance on none but those who recognize this to be expedient for their own advantage. For in place of a benefit we grant our presence:

and therefore what deserves to be desired ought not to be imposed on the unwilling. It is a royal purpose to come to the aid, with the remedy of piety, of those crushed by the ruin of fortune, and to change bitter mischances of injury into a better lot. For by a petition laid before us you complain that Vivianus, a respectable man, puffed up by the artifice of the laws in which he is skilled, pursued your person with charges hurled against it, and came so far that, undefended, against the order of law, you were condemned by the sentence of the vicar of the city of Rome: but now, by the disposition of a religious mind, he has condemned worldly hatreds, and your peril has displeased its own author. And therefore, if your assertions are weakened by no objections, we do not suffer an injury to cling to the wretched which is shown to have displeased even its own contrivers.

Wherefore, the sentence which is known to have been promulgated by the vicar of the city of Rome on this matter having been sent into abolition, our authority restores you to your homeland and to all your goods, and at no time need you fear calumny on this point. But lest perchance anyone's punishable rashness be able to renew attacks of audacity against you, the protection of the patrician Albinus, assigned to you with the laws preserved, shall fortify you, since we wish nothing uncivil to be done, whose daily labour is to treat for the general peace. Well does the clemency of the prince take up those whom a father's piety has forsaken, since under a public parent the loss of a begetter ought least to be felt. For destitute infancy rightly has recourse to us, for whom the increase of all men brings profit.

The complaint of the most distinguished young men Marcianus and Maximus, then, has assailed us: that, during the paschal days, they were wounded by the blow of a father's death and, in the very season of joy, were alone compelled to bear sorrow, and that they neglected their own advantage with pious disregard, since even for a man of firm age to ponder such matters amid tears would seem a kind of madness. For the pursuit of gain ceases when there is leisure only for mourning, nor does the mind take in anything else, when the quality of grief has filled it. Seizing upon this cruel surprise, they report that the tower of the circus and a place in the amphitheatre, belonging to their father of illustrious memory, were sought after by your office with detestable ambition. No feeling of humanity recalled the schemer against them, no like misfortune frightened him:

he burdened infancy, which not to relieve is rightly reckoned a loss of honour. But we, who keep the rules of the ancients, who preserve the weights of piety, decree by a wholesome ordinance that, if the once patrician and magnificent man Volusianus, the father of the petitioners, possessed the above-mentioned places by common right, they ought not to perish for his sons; especially since we desire to nourish the senatorial seed with new benefits rather than, in its very beginnings, to crush the hope of mature age by some injury. And therefore your illustrious Greatness, if it remembers that any such thing was done, shall straightway know that it must be corrected, lest the venerable assembly of the senatorial order be violated by unjust presumption.

The renowned reputation of the city of Rome is nonetheless to be preserved by its own institution, nor does it take on foreign vices, it which has always prided itself on the uprightness of morals. For the frivolities of seditions and to court the burning of one's own city is not to wish in a Roman manner. And therefore severity of the laws is to be observed upon the authors of the deed, lest the detestable sight of a fire seize the hearts of the common people for abominable imitation. We have learned, then, from the report of the illustrious count Arigern, that he was assailed by a complaint of the Jews, that servile audacity broke out into the slaughter of their masters: