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was the temper of the laws, the judges, and perhaps the accuser himself,188 that, on refunding a thirteenth part of his plunder, Verres could retire to an easv and luxurious exile.184

The first imperfect attempt to restore the proportion of crimes and punishments was made by the dictator Sylla, who, in the midst of his sanguinary triumph, aspired to restrain the license, rather than to oppress the liberty, of the Romans. He gloried in the arbitrary proscription of four thousand seven hundred citizens.185 But, in the character of a legislator, he respected the prejudices of the times; and, instead of pronouncing a sentence of death against the robber or assassin, the general who betrayed an army, or the magistrate who ruined a province, Sylla was content to aggravate the pecuniary damages by the penalty of exile, or, in more constitutional language, by the interdiction of fire and water. The Cornelian, and afterwards the Pompeian and Julian, laws introduced a new system of criminal jurisprudence; 186 and the emperors, from Augustus to Justinian, disguised their increasing rigor under the names of the original_authors. But the invention and frequent use of extraordinary pains proceeded from the desire to extend and conceal the progress of despotism. In the condemnation of illustrious Romans, the senate was always prepared to confound, at the will of their masters, the judicial and legislative powers. It was the duty of the governors to maintain the peace of their province, by the arbitrary and rigid administration of justice; the freedom of the city evaporated in the extent of empire, and the Spanish malefactor, who claimed the privilege of a Roman, was elevated by the command of Galba on a fairer and more lofty cross.1

187

183 He first rated at millies (800,0007.) the damages of Sicily (Divinatio in Cæcilium c. 5), which he afterwards reduced to quadringenties (320,000.-1 Actio in Verrem, c. 18), and was finally content with tricies (24,000l.). Plutarch (in Ciceron. tom. iii. p. 1584) has not dissembled the popular suspicion and report.

184 Verres lived near thirty years after his trial, till the second triumvirate, when he was proscribed by the taste of Mark Antony for the sake of his Corinthian plate (Plin, Hist. Natur. xxxiv. 3).

185 Such is the number assigned by Valerius Maximus (1. ix. c. 2, No. 1). Florus (iv. 21) distinguishes 2000 senators and knights. Appian (de Bell, Civil. 1. i. c. 35, tom ii p. 133, edit. Schweighauser) more accurately computes forty victims of the senatorian rank, and 1600 of the equestrian census or order.

180 For the penal laws (Leges Cornelia, Pompeia, Julie, of Sylla, Pompey, and the Cæsars) see the sentences of Paulus (1. iv. tit. xviii.-xxx. pp. 497-528, edit. Schulting), the Gregorian Code (Fragment. 1. xix. pp. 705, 706, in Schulting), the Collatio Legum Mosaicarum et Romanarum (tit. i.-xv.), the Theodosian Code (1. ix), the Code of Justinian (1. ix.), the Pandects (xlviii.), the Institutes (1. iv. tit. xviii), and the Greek version of Theophilas (pp. 917-926).

18. It was a guardian who had poisoned his ward. The crime was atrocious: yet the punishment is reckoned by Suetonius (c. 9) among the acts in which Galba showed himself acer, veliemens, et in delictis coercendis immodicus.

Occasional rescripts issued from the throne to decide the questions which, by their novelty er importance, appeared to surpass the authority and discernment of a proconsul. Transportation and beheading were reserved for honorable persons; meaner criminals were either hanged, or burnt, or buried in the mines, or exposed to the wild beasts of the amphitheatre. Armed robbers were pursued and extirpated as the enemies of society; the driving away horses or cattle was made a capital offence; 188 but simple theft was uniformly considered as a mere civil and private injury. The degrees of guilt, and the modes of punishment, were too often determined by the discretion of the rulers, and the subject was left in ignorance of the legal danger which he might incur by every action of his life.

A sin, a vice, a crime, are the objects of theology, ethics, and jurisprudence. Whenever their judgments agree, they corroborate each other; but, as often as they differ, a prudent legislator appreciates the guilt and punishment according to the measure of social injury. On this principle, the most daring attack on the life and property of a private citizen is judged less atrocious than the crime of treason or rebellion, which invades the majesty of the republic; the obsequious civilians unanimously pronounced, that the republic is contained in the person of its chief; and the edge of the Julian law was sharpened by the incessant diligence of the emperors. The licentious commerce of the sexes may be tolerated as an impulse of nature, or forbidden as a source of disorder and corruption; but the fame, the fortunes, the family of the husband, are seriously injured by the adultery of the wife. The wisdom of Augustus, after curbing the freedom of revenge, applied to this domestic offence the animadversion of the laws; and the guilty parties, after the payment of heavy forfeitures and fines, were condemned to long or perpetual exile in two separate islands.189 Religion pronounces an equal censure against the infidelity of the husband; but, as it is not accompanied

188 The abactores or abigeatores, who drove one horse, or two mares or oxen. or five hogs, or ten goats, were subject to capital punishment (Paul. Sentent, Recept. 1. iv. tit. xviii. pp. 497, 498). Hadrian (ad Concil. Bætica), most severe where the offence was most frequent, condemns the criminals, ad gladium, ludi damnationem (Ulpian de Officio Proconsulis, 1. viii. in Collatione Legum Mosaic et Rom. tit. xi. p. 235).

189 Till the publication of the Julius Paulus of Schulting (1. ii. tit. xxvi. pp. 317-323), it was affirmed and believed that the Julian laws punished adultery with death; and the mistake arose from the fraud or error of Tribonian. Yet Lipsius had suspected the truth from the narratives of Tacitus (Annal. ii. 50, iii. 24, iv. 42), and even from the practice of Augustus who distinguished the treasonable frail ties of his female kindred.

191

by the same civil effects, the wife was never permitted to vindicate her wrong; 190 and the distinction of simple or double adultery, so familiar and so important in the canon law, is unknown to the jurisprudence of the Code and the Pandects. I touch with reluctance, and despatch with impatience, a more odious vice, of which modesty rejects the name, and nature abominates the idea. The primitive Romans were infected by the example of the Etruscans and Greeks; 192 in the mad abuse of prosperity and power, every pleasure that is innocent was deemed insipid; and the Scatinian law, 1983 which had been extorted by an act of violence, was insensibly abolished by the lapse of time and the mul titude of criminals. By this law, the rape, perhaps the seduction, of an ingenuous youth, was compensated, as a personal injury, by the poor damages of ten thousand sesterces, or fourscore pounds; the ravisher might be slain by the resistance or revenge of chastity; and I wish to believe, that at Rome, as in Athens, the voluntary and effeminate deserter of his sex was degraded from the honors and the

rights of a citizen.194 But the practice of vice was not discouraged by the severity of opinion; the indelible stain of manhood was confounded with the more venial transgressions of fornication and adultery, nor was the licentious lover exposed to the same dishonor which he impressed on the male or female partner of his guilt. From Catullus to Juvenal, 195 the poets accuse and celebrate the degeneracy of the times; and the reformation of manners was feebly attempted by the reason and authority of the civilians till

190 In cases of adultery, Severus confined to the husband the right of public accusation (Cod. Justinian, 1. ix. tit. ix. leg. 1). Nor is this privilege unjust-so different are the effects of male or female infidelity.

191 Timon (1. i.) and Theopompus (1. xliii. apud Athenæum, 1. xii. p. 517) deBcribe the iuxury and lust of the Etruscans : πολυ μὲν τοι γε χαιρουσι συνόντες τοῖς Taloi Kai Tois μeipariois. About the same period (A. U. C. 445) the Roman youth studied in Etruria (liv. 1x. 36).

132 The Persians had been corrupted in the same school; an EλAnvwv μatóvτes Taloi μíoyovτa (Herodot. 1. i. c. 135). A curious dissertation might be formed on the introduction of pæderasty after the time of Homer, its progress among the Greeks of Asia and Europe. the vehemence of their passions, and the thin device of virtue and friendship which amused the philosophers of Athens. But scelera ostendi oportet dum puniuntur, abscondi flagitia.

13 The name, the date, and the provisions of this law are equally doubtful (Gravina, Opp. pp. 432, 433. Heineccius, Hist. Jur. Rom. No. 108. Ernest, Clav. Ciceron. in Indice Legum). But I will observe that the nefanda Venus of the honest German is styled aversa by the more polite Italian.

194 See the oration of Eschines against the catamite Timarchus (in Reiske, Orator. Græc. tom. iii. p. 21-184).

195 A crowd of disgraceful passages will force themselves on the memory of the classic reader: I will only remind him of the cool declaration of Ovid:

Odi concubitus qui non utrumque resolvunt.
Hoc est quod puerûm tangar amore minus.

the most virtuous of the Cæsars proscribed the sin against nature as a crime against society.De

A new spirit of legislation, respectable even in its error, arose in the empire with the religion of Constantine.197 The laws of Moses were received as the divine original of justice, and the Christian princes adapted their penal statutes to the degrees of moral and religious turpitude. Adultery was first declared to be a capital offence: the frailty of the sexes was assimilated to poison or assassination, to sorcery or parricide; the same penalties were inflicted on the pas sive and active guilt of pæderasty; and all criminals of free or servile condition were either drowned or beheaded, or cast alive into the avenging flames. The adulterers were spared by the common sympathy of mankind; but the lovers of their own sex were pursued by general and pious indignation: the impure manners of Greece still prevailed in the cities of Asia, and every vice was fomented by the celibacy of the monks and clergy. Justinian relaxed the punishment at least of female infidelity: the guilty spouse was only condemned to solitude and penance, and at the end of two years she might be recalled to the arms of a forgiving husband. But the same emperor declared himself the implacable enemy of unmanly lust, and the cruelty of his persecution can scarcely be excused by the purity of his motives.198 In defiance of every principle of justice, he stretched to past as well as future offences the operations of his edicts, with the previous allowance of a short respite for confession and pardon. A painful death was inflicted by the amputation of the sinful instrument, or the insertion of sharp reeds into the pores and tubes of most exquisite sensibility; and Justinian defended the propriety of the execution, since the criminals would have lost their hands, had they been convicted of sacrilege. In this state of disgrace and agony, two bishops, Isaiah of Rhodes and Alexander of Diospolis, were dragged through the streets of Constantinople, while their brethren were admonished, by the voice of a crier, to observe this awful lesson, and not to pol

196 Elius Lampridius, in Vit. Heliogabal. in Hist. August. p. 112. Aurelius Victor, in Philippo, Codex Theodos. 1. ix. tit. vii. leg. 7, and Godefroy's Commentary, tom. iii. p. 63. Theodosius abolished the subterraneous brothels of Rome, in which the prostitution of both sexes was acted with impunity.

197 See the laws of Constantine and his successors against adultery, sodomy, &c., in the Theodosian (1. ix. tit. vii. leg. 7, 1. xi. tit. xxxvi. leg. 1, 4) and Justinian Codes (1. ix. tit. ix. 30, 31). These princes speak the language of passion as well as of justice, and fraudulently ascribe their own severity to the first Cæsars. 198 Justinian, Novel. lxxvii. cxxxiv. cxli. Procopius in Anecdot. c. 11, 16, with the notes of Alemannus. Theophanes, p. 151. Cedrenus, p. 368. Zonaras, 1. xiv. p. 64.

lute the sanctity of their character. Perhaps these prelates were innocent. A sentence of death and infamy was often founded on the slight and suspicious evidence of a child or a servant the guilt of the green faction, of the rich, and of the enemies of Theodora, was presumed by the judges, and pæderasty became the crime of those to whom no crime could be imputed. A French philosopher 199 has dared to remark that whatever is secret must be doubtful, and that our natural horror of vice may be abused as an engine of tyranny. But the favorable persuasion of the same writer, that a legislator may confide in the taste and reason of mankind, is impeached by the unwelcome discovery of the antiquity and extent of the disease.200

201

The free citizens of Athens and Rome enjoyed, in all criminal cases, the invaluable privilege of being tried by their country." 1. The administration of justice is the most ancient office of a prince: it was exercised by the Roman kings, and abused by Tarquin; who alone, without law or council, pronounced his arbitrary judgments. The first consuls succeeded to this regal prerogative; but the sacred right of appeal soon abolished the jurisdiction of the magistrates, and all public causes were decided by the supreme tribunal of the people. But a wild democracy, superior to the forms, too often disdains the essential principles, of justice: the pride of despotism was envenomed by plebeian envy, and the heroes of Athens might sometimes applaud the happiness of the Persian, whose fate depended on the caprice of a single tyrant. Some salutary restraints, imposed by the people on their own passions, were at once the cause and effect of the gravity and temperance of the Romans.. The right of accusation was confined to the magistrates. A vote of the thirty-five tribes could inflict a fine;

199 Montesquieu. Esprit des Loix, 1. xii. c. 6. That eloquent philosopher conciliates the rights of liberty and of nature, which should never be placed in opposition to each other.

200 For the corruption of Palestine, 2000 years before the Christian æra, see the history and laws of Moses. Ancient Gaul is stigmatized by Diodorus Siculus (tom. i. 1. v. p. 356), China by the Mahometan and Christian travellers (Ancient Relations of India and China, p. 34, translated by Renaudot, and his bitter critic the Père Premare, Lettres Edifiantes, tom. xix. p. 435), and native America by the Spanish historiaus (Garcilasso de la Vega, 1. iii. c. 13. Rycaut's translation: and Dictionnaire de Bayle, tom i p. 88). I believe, and hope, that the negroes, in their own country, were exempt from this moral pestilence.

201 The important subject of the public questions and judgments at Rome, is explained with much learning, and in a classic style, by Charles Sigonius (1. iii. de Judiciis, in Opp. tom. iii. pp. 679-864), and a good abridgment may be found in the Republique Romaine of Beaufort (tom. ii. 1. v. pp. 1-121). Those who wish for more abstruse law may study Noodt (de Jurisdictione et Imperio Libri duo, tom. i. pp. 93-134), Heineccius (ad Pandect. 1. i. et ii. ad Institut. 1. iv. tit. xvii. Element, ad Antiquitat.) and Gravina (Opp. 230-251).

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