XLIV. CHAP this important though buthenfome office, an an. nual lift of ancient and refpectable citizens was formed by the prætor. After many constitutional ftruggles, they were chofen in equal numbers from the fenate, the equeftrian order, and the people; four hundred and fifty were appointed for fingle queftions; and the various rolls or decuries of judges must have contained the names of some thousand Romans, who reprefented the judicial authority of the state. In each particular cause, a fufficient number was drawn from the urn; their integrity was guarded by an oath; the mode of ballot fecured their independence; the suspicion of partiality was removed by the mutual challenges of the accufer and defendant; and the judges of Milo, by the retrenchment of fifteen on each fide, were reduced to fifty-one voices or tablets, of acquittal, of condemnation, or of favourable doubt 203. 3. In his civil jurifdiction, the prætor of the city was truly a judge, and almost a legiflator; but as foon as he had prescribed the action of law, he often referred to a delegate the determination of the fact. With the increase of legal proceedings, the tribunal of the centumvirs, in which he prefided, acquired more weight and reputation. But whether he acted alone, or with the advice of his council, the most abfolute powers might be obligation of an unanimous verdict is peculiar to our laws, which condemn the juryman to undergo the torture from whence they have exempted the criminal. 203 We are indebted for this interefting fact to a fragment of Afconius Pedianus, who flourished under the reign of Tiberius. The lofs of his Commentaries on the Orations of Cicero has deprived us of a valable fund of historical and legal knowledge. trufted XLIV. trusted to a magiftrate who was annually chofen by CHA P. the votes of the people. The rules and precau. tions of freedom have required fome explanation the order of defpotifm is fimple and inanimate. Before the age of Justinian, or perhaps of Diocletian, the decuries of Roman judges had funk to an empty title: the humble advice of the affeffors Affeffors. might be accepted or defpifed; and in each tribunal the civil and criminal jurifdiction was administered by a single magistrate, who was raised and difgraced by the will of the emperor. exile and death. ་ A Roman accused of any capital crime might Voluntary prevent the fentence of the law by voltuntary exile, or death. Till his guilt had been legally proved, his innocence was prefumed, and his perfon was free till the votes of the last century had been counted and declared, he might peaceably fecede to any of the allied cities of Italy, or Greece, or Afia 204 His fame and fortunes were preserved, at least to his children, by this civil death; and he might still be happy in every rational and fenfual enjoyment, if a mind accustomed to the ambitious tumult of Rome could fupport the uniformity and filence of Rhodes or Athens. A bolder effort was required to escape from the tyranny of the Cæfars; but this effort was rendered familiar by the maxims of the Stoics, the example of the bravest Romans, and the legal encouragements of fuicide. The bodies of condemned criminals were exposed to public ignominy, and their children, a 20+ Polyb. 1. vi. p. 643. The extenfion of the empire and city of Rome, obliged the exile to seek a more diftant place of retirement. more XLIV. CHA P. more serious evil, were reduced to poverty by the confifcation of their fortunes. But if the victims of Tiberius and Nero anticipated the decree of the prince or fenate, their courage and dispatch were recompenfed by the applaufe of the public, the decent honours of burial, and the validity of their teftaments 205. The exquifite avarice and cruelty of Domitian appear to have deprived the unfortunate of this last confolation, and it was still denied even by the clemency of the Antonines. A voluntary death, which, in the cafe of a capital offence, intervened between the accufation and the fentence, was admitted as a confeffion of guilt, and the fpoils of the deceased were feized by the inhuman claims of the treasury 206. Yet the civilians have always refpected the natural right of a citizen to dispose of his life; and the posthumous disgrace invented by Tarquin 207 to check the defpair of his fubjects, was never revived or imitated by fucceeding tyrants. The powers of this world have indeed loft their dominion over him who is refolved on death; and his arm can only be restrained by the religious apprehenfion of a future ftate. Suicides 205 Qui de fe ftatuebant, humabantur corpora, manebant tefta- . menta; pretium feftinandi. Tacit. Annal. vi. 25. with the Notes of Lipfius. 206 Julius Paulus, (Sentent. Recept. 1. v. tit xii. p. 476.), the Pandects (1. xlviii. tit. xxi.), the Code (1. ix. tit. L.), Bynkershoek (tom. i. p. 59. Obfervat. J. C. R. iv. 4.), and Montefquieu (Efprit des Loix, 1. xxix. c. 9.), define the civil limitations of the liberty and privileges of fuicide. The criminal penalties are the production, of a later and darker age. 207 Plin. Hift. Natur. xxxvi. 24. When he fatigued his fubjects in building the Capitol, many of the labourers were provoked to dispatch themselves; he nailed their dead bodies to croffes. are XLIV. are enumerated by Virgil among the unfortunate, CHAP. rather than the guilty 28; and the poetical fables of the infernal shades could not seriously influence the faith or practice of mankind. But the precepts of the gospel, or the church, have at length inpofed a pious fervitude on the minds of Chriftians, and condemn them to expect, without a murmur, the last stroke of disease or the executioner. The penal ftatutes form a very fmall proportion of the fixty-two books of the Code and Pandects: and, in all judicial proceeding, the life or death of a citizen is determined with less caution and delay than the most ordinary queftion of covenant or inheritance. This fingular diftinction, though fomething may be allowed for the urgent neceffity of defending the peace of fociety, is derived from the nature of criminal and civil jurifprudence. Our duties to the state are fimple and uniform; the law by which he is condemned, is inscribed not only on brafs or marble, but on the confcience of the offender, and his guilt is commonly proved by the teftimony of a fingle fact. But our relations to each other are various and infinite: our obligations are created, annulled, and modified, by injuries, benefits, and promifes; and the interpretation of voluntary contracts and teftaments, which are often dictated by fraud or ignorance, affords a long and laborious exercife to the fagacity of the 208 The fole resemblance of a violent and preniature death has engaged Virgil (Eneid vi. 434-439.) to confound fuicides with infants, lovers, and perfons unjustly condemned. Heyne, the best of 'his editors, is at a lofs to deduce the idea, or afcertain the jurif prudence, of the Roman poet, > Abufes of civil jurifprudence. judge. XLIV. CHAP. judge. The business of life is multiplied by the extent of commerce and dominion, and the refidence of the parties in the diftant provinces of an empire,' is productive of doubt, delay, and inevitable appeals from the local to the fupreme magiftrate. Juftinian, the Greek emperor of Conftantinople and the Eaft, was the legal fucceffor of the Latian fhepherd who had planted a colony on the banks of the Tyber. In a period of thirteen hundred years, the laws had reluctantly followed the changes of government and manners; and the laudable defire of conciliating ancient names with recent inftitutions, deftroyed the harmony, and fwelled the magnitude, of the obfcure and irregular fyftem. The laws which excufe on any occafions. the ignorance of their fubjects, confess their own imperfections; the civil jurifprudence, as it was abridged by Juftinian, ftill continued a mysterious science and a profitable trade, and the innate perplexity of the ftudy was involved in tenfold darknefs by the private industry of the practitioners. The expence of the purfuit fometimes exceeded the value of the prize, and the faireft rights were abandoned by the poverty or prudence of the claimants. Such coftly justice might tend to abate the fpirit of litigation, but the unequal preffure ferves only to increase the influence of the rich, and to aggravate the mifery of the poor. By these dilatory and expenfive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge. The experience of an abufe, from which our own age and country are not perfectly exempt, may |