Sidebilder
PDF
ePub

XLIV.

CHAP. Romans; and, during the two pureft ages, from the establishment of equal freedom to the end of the Punic wars, the city was never disturbed by fedition, and rarely polluted with atrocious crimes. The failure of penal laws was more fenfibly felt when every vice was inflamed by faction at home and dominion abroad. In the time of Cicero, cach private citizen enjoyed the privilege of anarchy each minifter 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 philofophy. After a triennial indulgence of luft, rapine, and cruelty, Verres, the tyrant of Sicily, could only be fued for the pecuniary reftitution of three hundred thoufand pounds fterling; and fuch was the temper of the laws, the judges, and perhaps the accufer himfelf 183, that on refunding a thirteenth part of his plunder, Verres could retire to an eafy and luxurious exile 194

Revival of

nishments.

[ocr errors]

The first imperfect attempt to restore the procapital pu- portion of crimes and punishments, was made by the dictator Sylla, who in the midst of his fanguinary triumph, afpired to restrain the licence, rather than to opprefs the liberty, of the Romans. He gloried in the arbitrary profcription of four

183 He first rated at millies (800,000l.) 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 (24.000 l.). Plutarch in Ciceron.(tom. iii. p. 1584.) has not diffembled the popular fufpicion and report.

184 Verres lived near thirty years after his trial, till the second tri umvirate, when he was profcribed by the taste of Mark-Antony for the fake of his Corinthian plate (Plin. Hift. Natur. xxxiv. 3.).

thoufand

XLIV.

thousand feven hundred citizens 5. But in the CHA P.
character of a legiflator, he refpected the preju-
dices of the times; and instead of pronouncing a
fentence of death against the robber or affaffin, the
general who betrayed an army, or the magiftrate
who ruined a province, Sylla was content to aggra-
vate the pecuniary damages by the penalty of exile,
or, in more conftitutional language, by the inter-
diction of fire and water. The Cornelian, and af-
terwards the Pompeian, and Julian, laws intro-
duced a new fyftem of criminal jurifprudence, 185;
and the emperors, from Auguftus to Juftinian,
disguised their increafing rigour under the names
of the original authors. But the invention and
frequent ufe of extraordinary pains, proceeded
from the defire to extend and conceal the progress
of defpotifm. In the condemnation of illuftrious
Romans, the fenate was always prepared to con-
found, at the will of their masters, the judicial and
legislative powers. It was the duty of the
govern-
ors to maintain the peace of their province, by
the arbitrary and rigid administration of justice;

185 Such is the number affigned by Valerius Maximus (1. ix. c. 2. No 1.). Florus (iv. 21.) diftinguishes 2000 fenators and knights. Appian (de Bell. Civil. 1. i. c. 95. tom. ii p. 133. edit. Schweighæufer) more accurately computes 40 victims of the fenatorian rank, and 1600 of the equestrian census or order.

186 For the penal law (Leges Cornelia, rompeiæ, Juliæ, of Sylla, Pompey, and the Cæfars), fee the fentences of Paulus (1. iv. tit. xviii. xxx. p. 497-528. edit. Schulting), the Gregorian Code (Fragment. 1. xix. p. 705, 706. in Schulting), the Collatio Legum Mofaicarum et Romanarum (tit, i-xv.), the Theodofian Code (1. ix.), the Code of Juftinian (1. ix.), the Pandects (xlviii), the Inftitutes (1. iv. tit. xviii.), and the Greek verfion of Theophilus (p. 917-926.).

VOL. VIII.

H

the

[ocr errors]

XLIV.

[ocr errors]

CHAP. 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 crofs 187. Occafional refcripts iffued from the throne to decide the queftions which, by their novelty or importance, appeared to furpafs the authority and difcernment of a proconful. Tranfportation and beheading were referved for honourable perfons; meaner criminals were either hanged or burnt, or buried in the mines, or expofed to the wild beafts of the amphitheatre. Armed robbers were pursued and extirpated as the enemies of fociety; the driving away horfes or cattle was made a capital offence 113; but fimple theft was uniformly confidered as a mere civil and private injury. The degrees of guilt, and the modes of punishment, were too often determined by the difcretion of the rulers, and the subject was left in ignorance of the legal danger which he might incur by every action of his life.

Measure of guilt.

138

A fin, a vice, a crime, are the objects of theology, ethics, and jurifprudence. Whenever their judgments agree, they corroborate each other; but

187 It was a guardian who had poisoned his ward. The crime was atrocius; yet the punishment is reckoned by Suetonius (c. 9.) among the acts in which Galba fhewed himfelf acer vehemens, et in delictis coercendis immodicus.

188 The abactores or abigeatories, who drove one horse, or two mares or oxen, or five hogs, or ten goats, were fubject to capital punishment (Paul. Sentent. Recept. I. iv. tit. xviii. p. 497, 498.), Hadrian (ad Concil. Bætice), moft severe where the offence was maft frequent,condemns the criminals, ad gladium, ludi damnationem (Ulpian de Officio Proconfulis, 1. viii. in Collatione Legum Mofaic, et Rom. tit. xi. p. 235.).

XLIV.

as often as they differ, a prudent legiflator appre- CHAP. ciates the guilt and punishment according to the measure of focial injury. On this principle, the most daring attack on the life and property of a private citizen, is judged lefs atrocious than the crime of treafon or rebellion, which invades the majesty of the republic: the obfequious civilians unanimously pronounced, that the republic is con tained in the person of its chief; and the edge of the Julian law was fharpened by the inceffant diligence of the emperors. The licentious commerce of the sexes may be tolerated as an impulse of nature, or forbidden as a fource of diforder and corruption; but the fame, the fortunes, the family of the husband, are seriously injured by the adultery of the wife. The wisdom of Auguftus, after curbing the freedom of revenge, applied to this domeftic offence the animadverfion 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 cenfure against the infidelity of the husband; but as it is not accompanied by the fame civil effects, the wife was never permitted to vindicate her wrongs 199 ; and the diftinc

tion

189 Till the publication of the Julius Paulus of Schulting (1, ii. tit. xxvi. p. 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 Lipfius had fufpected the truth from the narratives of Tacitus (Annal. ii. 5o. iii. 24. iv. 42.), and even from the practice of Auguftus, who diftinguished the treasonable frailties of his female kindred,

190 In cafes of adultery, Severus confired to the hufband the right of public accufation (Cod. Juftinian. 1. ix. tit. ix. leg. 1.). Nor is this

H 2

XLIV.

vice.

CHAP. tion of fimple or double adultery, fo familiar and fo important in the canon law, is unknown to the Unnatural jurifprudence of the Code and Pandects. I touch with reluctance and dispatch with impatience, a more odious vice, of which modesty rejects the name, and nature abominates the idea The pri mitive Romans were infected by the example of the Etrufcans 191 and Greeks 192: in the mad abuse of profperity and power, every pleasure that is innocent was deemed infipid; and the Scatinian law 193, which had been extorted by an act of violence, was infenfibly abolished by the lapfe of time and the multitude of criminals. By this law, the rape, perhaps the feduction, of an ingenuous youth, was compenfated, as a perfonal injury, by the poor damages of ten thousand fefterces or fourscore pounds; the ravisher might be flain by the refiftance or revenge of chastity; and I wish

this privilege unjust-so different are the effects of male or female infidelity.

και

πολυ

191 Tamon (1. i.) and Theopompus (1. xliii. apud Athenæum, 1. xii. p. 517.) defcribe the luxury and luft of the Etrufcans: μεν τα γε χαίρεσι συνοντες τοις παισι τοις μειρακίας. About the fame period (A. U. C 445.) the Roman youth ftudied in Etruria (Liv. ix. 36.).

192 The Perfians had been corrupted in the fame school: a' Exλnvar Malovres mici ispovrat (Herodot. 1.i. c. 135.). A curious differtation might be formed on the introduction of pæderafty after the time of Homer, its progrefs among the Greeks of Afia and Europe, the vehemence of their paffions, and the thin device of virtue and friendship which amufed the philofophers of Athens. But, fcelera oftendi oportet dum puniuntur, abfcondi flagitia.

193 The name, the date, and the prov fions, of this law, are equally doubtful (Gravina, Opp. p. 432, 433. H.neccius, Hit Jur. Rom. No 108 Ernest, Clav. Ciceron in Indice Legum). But I will obferve that the nefando Venus of the honeft German is ftyled averfa by the more polite Italian,

« ForrigeFortsett »