delivery of a thing, are marked by the civilians with the epithet of
real. 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. Usury, the inveterate grievance of the city, had
been discouraged by the Twelve Tables, and abolished by the clamors of
the people. It was revived by their wants and idleness, tolerated by
the discretion of the prÊtors, 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. The most simple interest was condemned by the clergy of the
East and West; 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.
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. 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 prÊtor, 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 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. The equity of the prÊtors
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.
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. 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, are written in characters
of blood. 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.
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. 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. _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. _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. 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.
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
prÊtor, 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; the most bloody and wanton outrage was excused by the
provocation; 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. The barbarous
practice of wearing arms in the midst of peace, 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, that, on refunding a thirteenth part of his plunder, Verres
could retire to an easy and luxurious exile.
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. 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; 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. 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; 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.
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. 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; 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 and Greeks: and in
the mad abuse of prosperity and power, every pleasure that is innocent
was deemed insipid; and the Scatinian law, 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. 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, 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 CÊsars proscribed the sin
against nature as a crime against society.
Chapter XLIV: Idea Of The Roman Jurisprudence.--Part VIII.
A new spirit of legislation, respectable even in its error, arose in the
empire with the religion of Constantine. The laws of 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 pÊderasty; and all criminals of free or servile condition were
either drowned or beheaded, or cast alive into the avenging flames. The
adulterers were spared by the common 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. 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
presumed by the judges, and pÊderasty became the crime of those to whom
no crime could be imputed. A French philosopher has dared to remark that
whatever is secret must be doubtful, and that our natural horror of vice
may be abused as an engine of tyranny. But the favorable persuasion of
the same writer, that a legislator may confide in the taste and reason
of mankind, is impeached by the unwelcome discovery of the antiquity and
extent of the disease.