Armed robbers were pursued and extirpated as the enemies of society; the driving away horses or cattle was made a capital offence; 193 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. guilt A sin, a vice, a crime, are the objects of theology, ethics, and Measure of 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.194 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; 195 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 193 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. p. 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). 194 Till the publication of the Julius Paulus of Schulting (1. ii. tit. xxvi. p. 317323), 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. 195 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. Unnatural vice 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 primitive Romans were infected by the example of the Etruscans 196 and Greeks; 197 the mad abuse of prosperity and power, every pleasure that is innocent was deemed insipid; and the Scatinian law,198 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 honours and the rights of a citizen.199 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 dishonour which he impressed on the male or female partner of his guilt. From Catullus to Juvenal,200 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 Cæsars proscribed the sin against nature as a crime against society.201 196 Timon [leg. Timæus] (1. i.) and Theopompus (1. xliii. apud Athenæum, 1. xii. p. 517 [c. 14]) describe the luxury and lust of the Etruscans: où μévtoi ye xaipovor συνόντες τοῖς παισὶ καὶ τοῖς μειρακίοις. About the same period (A.U.C. 445), the Roman youth studied in Etruria (Liv. ix. 36). 197 The Persians had been corrupted in the same school: an' "Eddývwv pabóvtES Taloi píoyovrai (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. 198 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. 199 See the oration of Eschines against the catamite Timarchus (in Reiske, Orator. Græc, tom. iii. p. 21-184). 200 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 puerum tangar amore minus. 201 Ælius Lampridius, in Vit. Heliogabal, in Hist. August. p. 112 [xvii. 32, 6]. Aurelius Victor, in Philippo [Caes., 28], Codex Theodos. 1. ix. tit. vii. leg. 7 [leg. 6; A.D. 390], 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. I b the Christian A new spirit of legislation, respectable even in its error, arose Rigour of in the empire with the religion of Constantine.202 The laws of emperors 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 passive and active guilt of pæderasty; and all criminals of free and servile condition were either drowned or beheaded, or cast alive into the avenging flames. The adulterers were spared by the conmon 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.203 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 pollute 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 pre 202 See the laws of Constantine and his successors against adultery, sodomy, &c. in the Theodosian (1. ix. tit. vii. leg. 7; l. xi. tit. xxxvi. leg. 1, 4), and Justinian Codes (1. ix. tit. ix. leg. 30, 31). These princes speak the language of passion as well as of justice, and fraudulently ascribe their own severity to the first Cæsars. 203 Justinian, Novel. lxxvii. cxxxiv. cxli. Procopius, in Anecdot. c. 11, 16, with the Notes of Alemannus. Theophanes, p. 151 [A.M. 6021]. Cedrenus, p. 368, [i. p. 645, ed. Bonn]. Zonaras, 1. xiv. p. 64 (C. 7). Judgments of the people sumed by the judges, and pæderasty became the crime of those and to whom no crime could be imputed. A French philosopher* tio has dared to remark that whatever is secret must be doubtful, pr and that our natural horror of vice may be abused as an engine, m of tyranny. But the favourable persuasion of the same writer, of that a legislator may confide in the taste and reason of mankind, for is impeached by the unwelcome discovery of the antiquity and gu extent of the disease.205 Te The free citizens of Athens and Rome enjoyed, in all criminal ac cases, the invaluable privilege of being tried by their country.or 1. The administration of justice is the most ancient office of a p prince: it was exercised by the Roman kings, and abused by Tarquin; who alone, without law or council, pronounced his o 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 a 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; but the cognizance of all capital crimes was reserved by a fundamental law to the assembly of the centuries, in which the weight of influence 204 Montesquieu, Esprit des Loix, l. xii. c. 6. That eloquent philosopher conciliates the rights of liberty and of nature, which should never be placed in opposition to each other. 205 For the corruption of Palestine, 2000 years before the Christian æra, see the history and laws of Moses. Ancient Gaul is stigmatised by Diodorus Siculus (tom. i. l. v. p. 356 [c. 32]), 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 historians (Garcilasso de la Vega, l. iii. c. 13, Rycaut's translation; and Dictionnaire de Bayle, tom. iii. p. 88). I believe, and hope, that the negroes, in their own country, were exempt from this moral pestilence. 206 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. 679-864); and a good abridgment may be found in the République Romaine of Beaufort (tom ii. 1. v. p. 1-121). Those who wish for more abstruse law may study Noodt (de Jurisdictione et Imperio Libri duo, tom. i. p. 93-134), Heineccius (ad Pandect. 1. i. et. ii. ad Institut. Ì. iv. tit. xvii. Element. ad Antiquitat.), and Gravina (Opp. 230-251). and property was sure to preponderate. Repeated proclamations and adjournments were interposed to allow time for prejudice and resentment to subside; the whole proceeding might be annulled by a seasonable omen, or the opposition of a tribune; and such popular trials were commonly less formidable to innocence than they were favourable to guilt. But this union of the judicial and legislative powers, left it doubtful whether the accused party was pardoned or acquitted; and, in the defence of an illustrious client, the orators of Rome and Athens address their arguments to the policy and benevolence, as well as to the justice, of their sovereign. 2. The task of convening the citizens for the trial of each offender became more difficult, as the citizens and the offenders continually multiplied; and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates, or to extraordinary inquisitors. In the first ages these questions were rare and occasional. In the beginning of the seventh century of Rome they were made perpetual : four prætors were annually empowered to sit in judgment on the state offences of treason, extortion, peculation, and bribery; and Sylla added new prætors and new questions for those crimes which more directly injure the safety of individuals. By these inquisitors the trial was prepared and directed; but they could only pronounce the sentence of the majority of judges, who, with some truth and more prejudice, have been compared to the English juries.207 To discharge this Select judges important though burthensome office, an annual list of ancient and respectable citizens was formed by the prætor. After many constitutional struggles, they were chosen in equal numbers from the senate, the equestrian order, and the people; four hundred and fifty were appointed for single questions; and the various rolls or decuries of judges must have contained the names of some thousand Romans, who represented the judicial authority of the state. In each particular cause, a sufficient number was drawn from the urn; their integrity was guarded by an oath; the mode of ballot secured their independence; the suspicion of partiality was removed by the mutual challenges of the accuser and defendant; and the judges of Milo, by the retrenchment of fifteen on each side, were reduced to fifty-one voices or tablets, 207 The office, both at Rome and in England, must be considered as an occasional duty, and not a magistracy or profession. But the obligation of an unanimous verdict is peculiar to our laws, which condemn the jurymen to undergo the torture from whence they have exempted the criminal. |