Chapter XLIV: Idea Of The Roman Jurisprudence.—Part VII

1. The goddess of faith (of human and social faith) was
worshipped, not only in her temples, but in the lives of the
Romans; and if that nation was deficient in the more amiable
qualities of benevolence and generosity, they astonished the
Greeks by their sincere and simple performance of the most
burdensome engagements. 159 Yet among the same people, according
to the rigid maxims of the patricians and decemvirs, a naked
pact, a promise, or even an oath, did not create any civil
obligation, unless it was confirmed by the legal form of a
stipulation. Whatever might be the etymology of the Latin word,
it conveyed the idea of a firm and irrevocable contract, which
was always expressed in the mode of a question and answer. Do you
promise to pay me one hundred pieces of gold? was the solemn
interrogation of Seius. I do promise, was the reply of
Sempronius. The friends of Sempronius, who answered for his
ability and inclination, might be separately sued at the option
of Seius; and the benefit of partition, or order of reciprocal
actions, insensibly deviated from the strict theory of
stipulation. The most cautious and deliberate consent was justly
required to sustain the validity of a gratuitous promise; and the
citizen who might have obtained a legal security, incurred the
suspicion of fraud, and paid the forfeit of his neglect. But the
ingenuity of the civilians successfully labored to convert simple
engagements into the form of solemn stipulations. The praetors,
as the guardians of social faith, admitted every rational
evidence of a voluntary and deliberate act, which in their
tribunal produced an equitable obligation, and for which they
gave an action and a remedy. 160

159 (return) [ How much is the cool, rational evidence of
Polybius (l. vi. p. 693, l. xxxi. p. 1459, 1460) superior to
vague, indiscriminate applause—omnium maxime et praecipue fidem
coluit, (A. Gellius, xx. l.)]

160 (return) [ The Jus Praetorium de Pactis et Transactionibus is
a separate and satisfactory treatise of Gerard Noodt, (Opp. tom.
i. p. 483—564.) And I will here observe, that the universities of
Holland and Brandenburg, in the beginning of the present century,
appear to have studied the civil law on the most just and liberal
principles. * Note: Simple agreements (pacta) formed as valid an
obligation as a solemn contract. Only an action, or the right to
a direct judicial prosecution, was not permitted in every case of
compact. In all other respects, the judge was bound to maintain
an agreement made by pactum. The stipulation was a form common to
every kind of agreement, by which the right of action was given
to this.—W.]

2. The obligations of the second class, as they were contracted
by the delivery of a thing, are marked by the civilians with the
epithet of real. 161 A grateful return is due to the author of a
benefit; and whoever is intrusted with the property of another,
has bound himself to the sacred duty of restitution. In the case
of a friendly loan, the merit of generosity is on the side of the
lender only; in a deposit, on the side of the receiver; but in a
pledge, and the rest of the selfish commerce of ordinary life,
the benefit is compensated by an equivalent, and the obligation
to restore is variously modified by the nature of the
transaction. The Latin language very happily expresses the
fundamental difference between the commodatum and the mutuum,
which our poverty is reduced to confound under the vague and
common appellation of a loan. In the former, the borrower was
obliged to restore the same individual thing with which he had
been accommodated for the temporary supply of his wants; in the
latter, it was destined for his use and consumption, and he
discharged this mutual engagement, by substituting the same
specific value according to a just estimation of number, of
weight, and of measure. In the contract of sale, the absolute
dominion is transferred to the purchaser, and he repays the
benefit with an adequate sum of gold or silver, the price and
universal standard of all earthly possessions. The obligation of
another contract, that of location, is of a more complicated
kind. Lands or houses, labor or talents, may be hired for a
definite term; at the expiration of the time, the thing itself
must be restored to the owner, with an additional reward for the
beneficial occupation and employment. In these lucrative
contracts, to which may be added those of partnership and
commissions, the civilians sometimes imagine the delivery of the
object, and sometimes presume the consent of the parties. The
substantial pledge has been refined into the invisible rights of
a mortgage or hypotheca; and the agreement of sale, for a certain
price, imputes, from that moment, the chances of gain or loss to
the account of the purchaser. It may be fairly supposed, that
every man will obey the dictates of his interest; and if he
accepts the benefit, he is obliged to sustain the expense, of the
transaction. In this boundless subject, the historian will
observe the location of land and money, the rent of the one and
the interest of the other, as they materially affect the
prosperity of agriculture and commerce. The landlord was often
obliged to advance the stock and instruments of husbandry, and to
content himself with a partition of the fruits. If the feeble
tenant was oppressed by accident, contagion, or hostile violence,
he claimed a proportionable relief from the equity of the laws:
five years were the customary term, and no solid or costly
improvements could be expected from a farmer, who, at each moment
might be ejected by the sale of the estate. 162 Usury, 163 the
inveterate grievance of the city, had been discouraged by the
Twelve Tables, 164 and abolished by the clamors of the people. It
was revived by their wants and idleness, tolerated by the
discretion of the praetors, and finally determined by the Code of
Justinian. Persons of illustrious rank were confined to the
moderate profit of four per cent.; six was pronounced to be the
ordinary and legal standard of interest; eight was allowed for
the convenience of manufactures and merchants; twelve was granted
to nautical insurance, which the wiser ancients had not attempted
to define; but, except in this perilous adventure, the practice
of exorbitant usury was severely restrained. 165 The most simple
interest was condemned by the clergy of the East and West; 166
but the sense of mutual benefit, which had triumphed over the law
of the republic, has resisted with equal firmness the decrees of
the church, and even the prejudices of mankind. 167

161 (return) [ The nice and various subject of contracts by
consent is spread over four books (xvii.—xx.) of the Pandects,
and is one of the parts best deserving of the attention of an
English student. * Note: This is erroneously called “benefits.”
Gibbon enumerates various kinds of contracts, of which some alone
are properly called benefits.—W.]

162 (return) [ The covenants of rent are defined in the Pandects
(l. xix.) and the Code, (l. iv. tit. lxv.) The quinquennium, or
term of five years, appears to have been a custom rather than a
law; but in France all leases of land were determined in nine
years. This limitation was removed only in the year 1775,
(Encyclopedie Methodique, tom. i. de la Jurisprudence, p. 668,
669;) and I am sorry to observe that it yet prevails in the
beauteous and happy country where I am permitted to reside.]

163 (return) [ I might implicitly acquiesce in the sense and
learning of the three books of G. Noodt, de foenore et usuris.
(Opp. tom. i. p. 175—268.) The interpretation of the asses or
centesimoe usuroe at twelve, the unciarioe at one per cent., is
maintained by the best critics and civilians: Noodt, (l. ii. c.
2, p. 207,) Gravina, (Opp. p. 205, &c., 210,) Heineccius,
(Antiquitat. ad Institut. l. iii. tit. xv.,) Montesquieu, (Esprit
des Loix, l. xxii. c. 22, tom. ii. p. 36). Defense de l’Esprit
des Loix, (tom. iii. p. 478, &c.,) and above all, John Frederic
Gronovius (de Pecunia Veteri, l. iii. c. 13, p. 213—227,) and his
three Antexegeses, (p. 455—655), the founder, or at least the
champion, of this probable opinion; which is, however, perplexed
with some difficulties.]

164 (return) [ Primo xii. Tabulis sancitum est ne quis unciario
foenore amplius exerceret, (Tacit. Annal. vi. 16.) Pour peu (says
Montesquieu, Esprit des Loix, l. xxii. 22) qu’on soit verse dans
l’histoire de Rome, on verra qu’une pareille loi ne devoit pas
etre l’ouvrage des decemvirs. Was Tacitus ignorant—or stupid? But
the wiser and more virtuous patricians might sacrifice their
avarice to their ambition, and might attempt to check the odious
practice by such interest as no lender would accept, and such
penalties as no debtor would incur. * Note: The real nature of
the foenus unciarium has been proved; it amounted in a year of
twelve months to ten per cent. See, in the Magazine for Civil
Law, by M. Hugo, vol. v. p. 180, 184, an article of M. Schrader,
following up the conjectures of Niebuhr, Hist. Rom. tom. ii. p.
431.—W. Compare a very clear account of this question in the
appendix to Mr. Travers Twiss’s Epitome of Niebuhr, vol. ii. p.
257.—M.]

165 (return) [ Justinian has not condescended to give usury a
place in his Institutes; but the necessary rules and restrictions
are inserted in the Pandects (l. xxii. tit. i. ii.) and the Code,
(l. iv. tit. xxxii. xxxiii.)]

166 (return) [ The Fathers are unanimous, (Barbeyrac, Morale des
Peres, p. 144. &c.:) Cyprian, Lactantius, Basil, Chrysostom, (see
his frivolous arguments in Noodt, l. i. c. 7, p. 188,) Gregory of
Nyssa, Ambrose, Jerom, Augustin, and a host of councils and
casuists.]

167 (return) [ Cato, Seneca, Plutarch, have loudly condemned the
practice or abuse of usury. According to the etymology of foenus,
the principal is supposed to generate the interest: a breed of
barren metal, exclaims Shakespeare—and the stage is the echo of
the public voice.]

3. Nature and society impose the strict obligation of repairing
an injury; and the sufferer by private injustice acquires a
personal right and a legitimate action. If the property of
another be intrusted to our care, the requisite degree of care
may rise and fall according to the benefit which we derive from
such temporary possession; we are seldom made responsible for
inevitable accident, but the consequences of a voluntary fault
must always be imputed to the author. 168 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
praetor, and the injury was compensated by double, 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 purse-bearer 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 praetors 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 (return) 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 Isaeus, and the sentences of Arabian and Persian
cadhis.]

169 (return) [ Noodt (Opp. tom. i. p. 137—172) has composed a
separate treatise, ad Legem Aquilian, (Pandect. l. ix. tit. ii.)]

170 (return) [ Aulus Gellius (Noct. Attic. xx. i.) borrowed this
story from the Commentaries of Q. Labeo on the xii. tables.]

The execution of the Alban dictator, who was dismembered by eight
horses, is represented by Livy as the first and the fast 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.

1. 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, his 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
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 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
Latin 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
1781 After the judicial 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
Tyber: 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.

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

172 (return) [ The age of Draco (Olympiad xxxix. l) is fixed by
Sir John Marsham (Canon Chronicus, p. 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 (return) [ The viith, de delictis, of the xii. tables is
delineated by Gravina, (Opp. p. 292, 293, with a commentary, p.
214—230.) Aulus Gellius (xx. 1) and the Collatio Legum Mosaicarum
et Romanarum afford much original information.]

174 (return) [ Livy mentions two remarkable and flagitious aeras,
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. p. 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.]

175 (return) [ 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 guiltless monkey
(innoxia simia—156.) Adrian (apud Dositheum Magistrum, l. iii. c.
p. 874—876, with Schulting’s Note,) Modestinus, (Pandect. xlviii.
tit. ix. leg. 9,) Constantine, (Cod. l. ix. tit. xvii.,) and
Justinian, (Institut. l. iv. tit. xviii.,) enumerate all the
companions of the parricide. But this fanciful execution was
simplified in practice. Hodie tamen viv exuruntur vel ad bestias
dantur, (Paul. Sentent. Recept. l. v. tit. xxiv p. 512, edit.
Schulting.)]

176 (return) [ The first parricide at Rome was L. Ostius, after
the second Punic war, (Plutarch, in Romulo, tom. i. p. 54.)
During the Cimbric, P. Malleolus was guilty of the first
matricide, (Liv. Epitom. l. lxviii.)]

177 (return) [ Horace talks of the formidine fustis, (l. ii.
epist. ii. 154,) but Cicero (de Republica, l. iv. apud Augustin.
de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393,
edit. Olivet) affirms that the decemvirs made libels a capital
offence: cum perpaucas res capite sanxisent—perpaucus!]

178 (return) [ Bynkershoek (Observat. Juris Rom. l. i. c. 1, in
Opp. tom. i. p. 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, Caecilius,
Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi.]

1781 (return) [ Hugo (Histoire du Droit Romain, tom. i. p. 234)
concurs with Gibbon See Niebuhr, vol. ii. p. 313.—M.]

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 family contained a domestic tribunal, which was not
confined, like that of the praetor, 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 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 surprised an adulterer in his
nuptial bed might freely exercise his revenge; 179 the most
bloody and wanton outrage was excused by the provocation; 180 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 was the temper of the laws, the judges,
and perhaps the accuser himself, 183 that, on refunding a
thirteenth part of his plunder, Verres could retire to an easy
and luxurious exile. 184

179 (return) [ The first speech of Lysias (Reiske, Orator. Graec.
tom. v. p. 2—48) is in defence 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
Lysiacae, c. xi. in Reiske, tom. vi. p. 301—308.)]

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

181 (return) [ This law is noticed by Livy (ii. 8) and Plutarch,
(in Publiccla, tom. i. p. 187,) and it fully justifies the public
opinion on the death of Caesar which Suetonius could publish
under the Imperial government. Jure caesus existimatur, (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 (return) [ Thucydid. l. i. c. 6 The historian who considers
this circumstance as the test of civilization, would disdain the
barbarism of a European court]

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

184 (return) [ 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.)]

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. 187 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. 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.

185 (return) [ Such is the number assigned by Valer’us Maximus,
(l. ix. c. 2, No. 1,) Florus (iv. 21) distinguishes 2000 senators
and knights. Appian (de Bell. Civil. l. i. c. 95, tom. ii. p.
133, edit. Schweighauser) more accurately computes forty victims
of the senatorian rank, and 1600 of the equestrian census or
order.]

186 (return) [ For the penal laws (Leges Corneliae, Pompeiae,
Julae, 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. l. xix. p. 705, 706, in
Schulting,) the Collatio Legum Mosaicarum et Romanarum, (tit.
i.—xv.,) the Theodosian Code, (l. 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.)]

187 (return) [ 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,
vehemens, et in delictis coercendis immodicus.]

188 (return) [ 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. l. iv. tit. xviii. p.
497, 498.) Hadrian, (ad Concil. Baeticae,) most severe where the
offence was most frequent, condemns the criminals, ad gladium,
ludi damnationem, (Ulpian, de Officio Proconsulis, l. viii. in
Collatione Legum Mosaic. et Rom. tit. xi p. 235.)]

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 by the same civil effects, the wife was never
permitted to vindicate her wrongs; 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 191 and Greeks: 192 and in the mad abuse
of prosperity and power, every pleasure that is innocent was
deemed insipid; and the Scatinian law, 193 which had been
extorted by an act of violence, was insensibly abolished by the
lapse of time and the multitude 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 the most virtuous of the Caesars proscribed the
sin against nature as a crime against society. 196

189 (return) [ Till the publication of the Julius Paulus of
Schulting, (l. 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 (return) [ In cases of adultery, Severus confined to the
husband the right of public accusation, (Cod. Justinian, l. ix.
tit. ix. leg. 1.) Nor is this privilege unjust—so different are
the effects of male or female infidelity.]

191 (return) [ Timon (l. i.) and Theopompus (l. xliii. apud
Athenaeum, l. xii. p. 517) describe the luxury and lust of the
Etruscans. About the same period (A. U. C. 445) the Roman youth
studied in Etruria, (liv. ix. 36.)]

192 (return) [ The Persians had been corrupted in the same
school, (Herodot. l. i. c. 135.) A curious dissertation might be
formed on the introduction of paederasty 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.]

193 (return) [ The name, the date, and the provisions of this law
are equally doubtful, (Gravina, Opp. p. 432, 433. Heineccius,
Hist. Jur. Rom. No. 108. Ernesti, 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 (return) [ See the oration of Aeschines against the catamite
Timarchus, (in Reiske, Orator. Graec. tom. iii. p. 21—184.)]

195 (return) [ 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 resolvant. Hoc est quod puerum tangar amore minus.]

196 (return) [ Aelius Lampridius, in Vit. Heliogabal. in Hist.
August p. 112 Aurelius Victor, in Philippo, Codex Theodos. l. 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.]