Romans; and, during the two purest ages, fromi J 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 fačtion 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 was the temper of the - laws, the judges, and perhaps the accuser himo self”, that on refunding a thirteenth part of his - plunder, Verres could retire to an easy and luxurious exile *. Revival of The first imperfeót attempt to restore the pro...P. portion of crimes and punishments, was made by

[ocr errors]
[ocr errors]

He gloried in the arbitrary proscription of four

183 He first rated at millies (8oo,oool.) the damages of Sicily (Divinatio in Caecilium, c. 5.), which he afterwards reduced to quadringenties (32c,000l.—1 Actio in Verrem, c. 18.) and was finally content with tricies (24.ocol.). 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 tri. umvirate, when he was proscribed by the taste of Mark-Antony for the sake of his Corinthian plate (Plin. Hist, Natur. xxxiv. 3.).

thousand **s Such is the number assigned by Valerius Maximus (). ix. c. 2. No 1.). Florus (iv. 21.) distinguishes 20co senators and knights. Appian (de Bell. Civil. l. i. c. 95. tom. ii p. 33. edit. Schweighteuser) more accurately computes 40 victims of the fematorian rank, and 16oo of the equestrian census or order. 186 For the penal law (Leges Corneliae, Pompeiae, Julia, of Sylla, Pompey, and the Caesars), see the sentences of Paulus (l. iv. tit. xviii. xxx. p. 497-528. edit. Schulting), the Gregorian Code (Fragment. I. xix. p. 705, 706. in Schulting), the Collatio Legum Mosaicarum et Romanarum (tit, i-xv.), the Theodosian Code (I. ix.), the Code of Justinian (l. ix.), the Pandects (xlviii); the Institutes (l. iv. tit.xviii.), and the Greek version of Theophilus (p. 917-926.). VOL. VIII. H the

[ocr errors][ocr errors]

dices 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 af. terwards the Pompeian, and Julian, laws introduced a new system of criminal jurisprudence. ”; and the emperors, from Augustus to Justinian, disguised their increasing rigour under the names of the original authors. But the invention and frequent use of extraordinary pains, proceeded from the defire 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;

[ocr errors]

[ocr errors]

the freedom of the city evaporated in the extent of

[ocr errors]
[ocr errors]

the privilege of a Roman, was elevated by the
command of Galba on a fairer and more lofty
cross “7. Occasional rescripts issued from the
throne to decide the questions which, by their
novelty or, importance, appeared to surpass the
authority and discernment of a proconsul. Trans-
portation and beheading were reserved for honour-
able persons; meaner criminals were either hanged
or burnt, or buried in the mines, or exposed to
the wild beasts of the amphitheatre. Armed rob-
bers were pursued and extirpated as the enemies of
society; the driving away horses or cattle was made
a capital offence “; but simple theft was uniform-
ly confidered 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 ačtion
of his life.
A fin, a vice, a crime, are the objećts of theo-
logy, ethics, and jurisprudence. Whenever their
judgments agree, they corroborate each other; but

*7. 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 shewed himself acer vehemens, et in delićtis coercendis immodicus.

* The abačtores or abigeatories, who drove one horse, or two mares or oxen, or five hogs, or ten goats, were subject to capital punishment (Paul. Sentent. Recept. l. iv. tit. xviii. P. 497, 498.). Hadrian (ad Concil. Beticæ), most severe where the offence was most frequent,condemns the criminals, ad gladium, ludi damnationom (Ulpian de Officio Proconsulis, l, viii, in Collatone Legum Mosaic. et Rom. tit. xi. p. 235).

2S tlOI).

[ocr errors]
[ocr errors]

as often as they differ, a prudent legislator appre-
ciates 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 con-
tained in the person of its chief; and the edge of
the Julian law was sharpened by the incessant dili-
gence 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”. Reli-
gion pronounces an equal censure against the infi-
delity of the husband; but as it is not accompanied
by the same civil effects, the wife was never per-
mitted to vindicate her wrongs”; and the distinc-

189 Till the publication of the Julius Paulus of Schulting (), 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 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 frailties of his female kindred.

190 In cases of adultery, Severus confined to the husband the right

of public accusation (Cod. Justinian. l. ix. tit. ix. leg. i.). Nor is H 2. this

[ocr errors][ocr errors]
[ocr errors][ocr errors]

this privilege unjust—so disserent are the effects of male or female infidelity. 191 Tomon (l. i.) and Theopompus (l. xliii. apud Athenacum, 1. xii. p. ; 17.) describe the luxury and lust of the Etruscans: wood pov to ye xaspect ov, ovtić rete 747, was too; a soaxici;. About the same period (A.U. C. 445.) the Roman youth studied in Etruria (Liv. ix. 36.). 192. The Persians had been corrupted in the same school: ar’ Exxnvoy oza Bovri. z z, wizyovra. (Herodot. l. i. c. 135.). A curious dissertation might be formed on the introdućt on of paederasty after the time of Homer, its progress among the Greeks of Afia and Europe, the vehemence of thoir passions, and the thin device of virtue and friendship which amtosed the philosophers of Athens. But, scelera offend oportet dum puniumtur, abscondi flagita. 195 The name, the date, and the prov fion, of this law, are equally doubt u! (Gravina, Opp. p. 432, 3. H. neccius, Hiit Jur. Rom. No 1.08 Ernest, Ciav. Ciceron in Indice Le; ūm). But I will Obferve that the mosando Venus of the honest German is styled aversa by the more polite Italian,

« ForrigeFortsett »