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consequences of a voluntary fault must always be imputed to the author.1 A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim. They were restored by the sentence of the prætor, and the injury was compensated by doable, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact, or detected by a subsequent research. The Aquilian law 169 defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence the highest price was allowed that could be ascribed to the domestic animal at any moment of the year preceding his death; a similar latitude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual: the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the decemvirs had confounded all hasty insults, which did not amount to the fracture of a limb, by condemning the aggressor to the common penalty of twenty-five asses. But the same

denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce: and the insolence of a wealthy Roman indulged himself in the cheap amusement of breaking and satisfying the law of the twelve tables. Veratius ran through the streets striking on the face the inoffensive passengers, and his attendant pursebearer immediately silenced their clamors by the legal tender of twenty-five pieces of copper, about the value of one shilling. 170 The equity of the prætors examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages, the magistrate assumed a right to consider the various circumstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person: but if he admitted the idea of a fine, a punishment, an example, he invaded the province, though, perhaps, he supplied the defects, of the criminal law.

168 Sir William Jones has given an ingenious and rational Essay on the Law of Bailment (London, 1781. p. 127, in 8vo.). He is perhaps the only lawyer equally conversant with the year-books of Westminster. the Commentaries of Ulpian, the Attic pleadings of Isæus, and the sentences of Arabian and Persian cadhis. 169 Noodt (Opp. tom. i. pp. 137-172) has composed a separate treatise, ad Legem Aquiliam (Pandect. 1. ix. tit. ii.).

170 Aulus Gellius (Noct. Attic. xx. i.) borrowed this story from the Commentar ries of Q. Labeo on the xii. tables.

The execution of the Alban dictator, who was dis membered by eight horses, is represented by Livy as the first and the last instance of Roman cruelty in the punishment of the most atrocious crimes. 171 But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The twelve tables afford a more decisive proof of the national spirit, since they were framed by the wisest of the senate, and accepted by the free voices of the people; yet these laws, like the statutes of Draco,172 are written in characters of blood.173 They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastisements of flagellation and servitude; and nine crimes of a very different complexion are adjudged worthy of death. I. Any act of treason against the state, or of correspondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, hist hands were tied behind his back, and after he had been scourged by the lictor, he was suspended in the midst of the forum on a cross, or inauspicious tree. 2. Nocturnal meetings in the city; whatever might be the pretence, of pleasure, or religion, or the public good. 3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more

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odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic, and the chaste virtues of the Roman matrons.174 The parricide, who violated the duties of nature and gratitude, was cast

171 The narrative of Livy (i. 28) is weighty and solemn. At tu dictis, Albane, maneres, is a harsh reflection, unworthy of Virgil's humanity (Æneid. viii. 643). Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Eneas (tom. iii. p. 229).

172 The age of Draco (Olympiad xxxix. 1) is fixed by Sir John Marsbam (Canon Chronicus, pp. 593-596) and Corsini (Fasti Attici, tom. iii. p. 62). For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c.

173 The viith, de delictis, of the xii. tables is delineated by Gravina (Opp. pp. 292, 293, with a commentary, pp. 214-230). Aulus Gellius (xx. 1) and the Collatio Legum Mosaicarum et Romanarum afford much original information.

174 Livy mentions two remarkable and flagitious æras, of 3000 persons accused, and of 190 noble matrons convicted, of the crime of poisoning (xl. 43, viii. 18). Mr. Hume discriminates the ages of private and public virtue (Essays, vol. i. pp. 22, 23). I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation.

into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added, as the most suitable companions.175 Italy produces no monkeys; but the want could never be felt, till the middle of the sixth century first revealed the guilt of a parricide.176 4. The malice of an incendiary. After the previous ceremony of whipping, he himself was delivered to the flames; and in this example alone our reason is tempted to applaud the justice of retaliation. 5. Judicial perjury. The corrupt or malicious witness was thrown headlong from the Tarpeian rock to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws, and the deficiency of written evidence. 6. The corruption of a judge who accepted bribes to pronounce an iniquitous sentence. 7. Libels and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastisement, but it is not certain that he was left to expire under the blows of the executioner.177 8. The nocturnal mischief of damaging or destroying a neighbor's corn. The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twenty-five pounds of copper. 9. Magical incantations; which had power, in the opinion of the Latian shepherds, to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deep-rooted plantations. The cruelty of the twelve tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism.178* After the judicial

175 The xii. tables and Cicero (pro Roscio Amerino, c. 25, 26) are content with the sack; Seneca (Excerpt. Controvers. v. 4) adorns it with serpents; Juvenal pities the less monkey (innoxia simia--Satir. xiii. 156). Adrian (apud Dositheum Magistrum, 1. iii. c. 16, pp. 874-876, with Schulting's Note), Modestinus (Pandect. xlviii. tit. ix. leg. 9), Constantine (Cod. 1. ix. tit. xvii.), and Justinian (Institut. 1. iv. tit. xviii.), enumerate all the companions of the parricide. But this fanciful execution was simplified in practice. Hodie tamen vivi exuruntur vel ad bestias dantur (Paul. Sentent. Recept. I. v. tit. xxiv. p. 512, edit. Schulting). 176 The first parricide at Rome was L. Ostius, after the second Punic war (Plu tarch, in Romulo, tom. 1. p. 57). During the Cimbric, P. Malleolus was guilty of the first matricide (Liv. Epitom. 1. lxviii.).

Horace talks of the formidine fustis (1. ii. epist. ii. 154), but Cicero (de Republicâ, 1. iv. apud Augustin. de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. ii. p. 393, edit. Olivet) affirms that the decemvirs made libels a capital offence: cum perpaucas res capite sanxissent-perpaucas!

178 Bynkershoek (Observat. Juris. Rom. 1. i. c. 1, in Opp. tom. i. pp. 9, 10, 11) labors to prove that the creditors divided not the body, but the price, of the insolvent debtor. Yet his interpretation is one perpetual harsh metaphor; nor can he surmount the Roman authorities of Quintilian, Cæcilius, Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi,

Hugo (Histoire du Droit Romain, tom. 1. p. 234) concurs with Gibbon. See Niebuhr, vol. ii. p. 313.-M.

proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow-citizen. In this private prison, twelve ounces of rice were his daily food; he might be bound with a chain of fifteen pounds weight; and his misery was thrice exposed in the market place, to solicit the compassion of his friends and countrymen. At the expiration of sixty days, the debt was discharged by the loss of liberty or life; the insolvent debtor was either put to death, or sold in foreign slavery beyond the Tiber: but, if several creditors were alike obstinate and unrelenting, they might legally dismember his body, and satiate their revenge by this horrid partition. The advocates for this savage law have insisted, that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge; but experience would dissipate this salutary terror, by proving that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the decemvirs was abolished by the humanity of accusers, witnesses, and judges; and impunity became the consequence of immoderate rigor. The Porcian and Valerian laws prohibited the magistrates from inflicting on a free citizen any capital, or even corporal, punishment; and the obsolete statutes of blood were artfully, and perhaps truly, ascribed to the spirit, not of patrician, but of regal, tyranny.

In the absence of penal laws, and the insufficiency of civil actions, the peace and justice of the city were imperfectly maintained by the private jurisdiction of the citizens. The malefactors who replenish our jails are the outcasts of society, and the crimes for which they suffer may be commonly ascribed to ignorance, poverty, and brutal appetite. For the perpetration of similar enormities, a vile plebeian might claim and abuse the sacred character of a member of the republic; but, on the proof or suspicion of guilt, the slave, or the stranger, was nailed to a cross: and this strict and summary justice might be exercised without restraint over the greatest part of the populace of Rome. Each fam ily contained a domestic tribunal, which was not confined, like that of the prætor, to the cognizance of external actions; virtuous principles and habits were inculcated by the discipline of education; and the Roman father was accountable to the state for the manners of his children, since he disposed, without appeal, of their life, their liberty, and

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their inheritance. In some pressing emergencies, the citizen was authorized to avenge his private or public wrongs. The consent of the Jewish, the Athenian, and the Roman laws approved the slaughter of the nocturnal thief; though in open daylight a robber could not be slain without some previous evidence of danger and complaint. Whoever sur prised an adulterer in his nuptial bed might freely exercise his revenge; 7 the most bloody and wanton outrage was excused by the provocation; nor was it before the reign of Augustus that the husband was reduced to weigh the rank of the offender, or that the parent was condemned to sacrifice his daughter with her guilty seducer. After the expulsion of the kings, the ambitious Roman who should dare to assume their title or imitate their tyranny, was devoted to the infernal gods; each of his fellow-citizens was armed with the sword of justice; and the act of Brutus, however repugnant to gratitude or prudence, had been already sanctified by the judgment of his country.181 The barbarous practice of wearing arms in the midst of peace,182 and the bloody maxims of honor, were unknown to the Romans; and, during the two purest ages, from the establishment of equal freedom to the end of the Punic wars, the city was never disturbed by sedition, and rarely polluted with atrocious crimes. The failure of penal laws was more sensibly felt, when every vice was inflamed by faction at home and dominion abroad. In the time of Cicero, each private citizen enjoyed the privilege of anarchy; each minister of the republic was exalted to the temptations of regal power, and their virtues are entitled to the warmest praise, as the spontaneous fruits of nature or philosophy. After a triennial indulgence of lust, rapine, and cruelty, Verres, the tyrant of Sicily, could only be sued for the pecuniary restitution of three hundred thousand pounds sterling; and such

179 The first speech of Lysias (Reiske, Orator. Græc. tom. v. pp. 2-48) is in de fence of a husband who had killed the adulterer. The rights of husbands and fathers at Rome and Athens are discussed with much learning by Dr. Taylor (Lectiones Lysiacæ, c. xi. in Reiske, tom. vi. pp. 301-308).

180 See Casaubon ad Athenæum, 1. i. c. 5, p. 19. Percurrent raphanique mugilesque (Catull. pp. 41, 42, edit, Vossian). Hunc mugilis intrat (Juvenal. Satir. x. 317). Hunc perminxere calones (Horat. 1. i. Satir. ii. 44). Familiæ stuprandum dedit. fraudi non fuit (Val. Maxim. 1. vi. c. 1, No. 13).

181 This law is noticed by Livy (ii. 8) and Plutarch (in Publicola, tom. i. p. 187), and it fully justifies the public opinion on the death of Cæsar, which Suetonius could publish under the Imperial government. Jure cæsus existimatuz (in Julio, c. 76). Read the letters that passed between Cicero and Matius a few months after the ides of March (ad Fam. xi. 27, 28).

182 Πρῶτοι δὲ Αθηναῖοι τόν τε σίδηρον κατέθεντο. Thucydid. 1. 1. e. 6. The histo rian who considers this circumstance as the test of civilization, would disdain the barbarism of a European court,

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