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 Latian
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 Tiber; 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 prætor, 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.[37]
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 afterward 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 burned, 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 of 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 wrong; 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; 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 Cæsars proscribed the sin against nature as a crime
against society.
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 pederasty, 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 pederasty became the crime of those to whom no crime could
be imputed. A French philosopher[38] 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.
V. The free citizens of Athens and Rome enjoyed in all criminal cases
the invaluable privilege of being tried by their country.
1. The administration of justice is the most ancient office of a prince:
it was exercised by the Roman kings and abused by Tarquin, who alone,
without law or council, pronounced his 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 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 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 favorable 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. To discharge this
important though burdensome 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 of acquittal, of
condemnation, or of favorable doubt.[39]
3. In his civil jurisdiction the prætor of the city was truly a judge,
and almost a legislator; but as soon as he had prescribed the action of
law he often referred to a delegate the determination of the fact. With
the increase of legal proceedings, the tribunal of the centumvirs in
which he presided acquired more weight and reputation. But whether he
acted alone, or with the advice of his council, the most absolute powers
might be trusted to a magistrate who was annually chosen by the votes of
the people. The rules and precautions of freedom have required some
explanation; the order of despotism is simple and inanimate. Before the
age of Justinian, or perhaps of Diocletian, the decuries of Roman judges
had sunk to an empty title: the humble advice of the assessors might be
accepted or despised, and in each tribunal the civil and criminal
jurisdiction was administered by a single magistrate, who was raised and
disgraced by the will of the emperor.
A Roman accused of any capital crime might prevent the sentence of the
law by voluntary exile or death. Till his guilt had been legally proved
his innocence was presumed, and his person was free: till the votes of
the last _century_ had been counted and declared, he might peaceably
secede to any of the allied cities of Italy, or Greece, or Asia.[40] His
fame and fortunes were preserved, at least to his children, by this
civil death; and he might still be happy in every rational and sensual
enjoyment, if a mind accustomed to the ambitious tumult of Rome could
support the uniformity and silence of Rhodes or Athens. A bolder effort
was required to escape from the tyranny of the Cæsars; but this effort
was rendered familiar by the maxims of the Stoics, the example of the
bravest Romans, and the legal encouragements of suicide. The bodies of
condemned criminals were exposed to public ignominy, and their children,
a more serious evil, were reduced to poverty by the confiscation of
their fortunes. But if the victims of Tiberius and Nero anticipated the
decree of the prince or senate, their courage and despatch were
recompensed by the applause of the public, the decent honors of burial,
and the validity of their testaments. The exquisite avarice and cruelty
of Domitian appear to have deprived the unfortunate of this last
consolation, and it was still denied even by the clemency of the
Antonines.
A voluntary death which, in the case of a capital offence, intervened
between the accusation and the sentence, was admitted as a confession of
guilt, and the spoils of the deceased were seized by the inhuman claims
of the treasury. Yet the civilians have always respected the natural
right of a citizen to dispose of his life; and the posthumous disgrace
invented by Tarquin,[41] to check the despair of his subjects, was never
revived or imitated by succeeding tyrants. The powers of this world have
indeed lost their dominion over him who is resolved on death, and his
arm can only be restrained by the religious apprehension of a future
state. Suicides are enumerated by Vergil among the unfortunate rather
than the guilty;[42] and the poetical fables of the infernal shades
could not seriously influence the faith or practice of mankind. But the
precepts of the gospel, or the Church, have at length imposed a pious
servitude on the minds of Christians, and condemn them to expect,
without a murmur, the last stroke of disease or the executioner.
The penal statutes form a very small proportion of the sixty-two books
of the _Code_ and _Pandects_; and in all judicial proceeding the life or
death of a citizen is determined with less caution or delay than the
most ordinary question of covenant or inheritance. This singular
distinction, though something may be allowed for the urgent necessity of
defending the peace of society, is derived from the nature of criminal
and civil jurisprudence. Our duties to the state are simple and uniform:
the law by which he is condemned is inscribed not only on brass or
marble, but on the conscience of the offender, and his guilt is commonly
proved by the testimony of a single fact. But our relations to each
other are various and infinite; our obligations are created, annulled,
and modified by injuries, benefits, and promises; and the interpretation
of voluntary contracts and testaments, which are often dictated by fraud
or ignorance, affords a long and laborious exercise to the sagacity of
the judge. The business of life is multiplied by the extent of commerce
and dominion, and the residence of the parties in the distant provinces
of an empire is productive of doubt, delay, and inevitable appeals from
the local to the supreme magistrate. Justinian, the Greek emperor of
Constantinople and the East, was the legal successor of the Latian
shepherd who had planted a colony on the banks of the Tiber. In a period
of thirteen hundred years the laws had reluctantly followed the changes
of government and manners, and the laudable desire of conciliating
ancient names with recent institutions destroyed the harmony and swelled
the magnitude of the obscure and irregular system.
The laws which excuse on any occasions the ignorance of their subjects
confess their own imperfections. The civil jurisprudence, as it was
abridged by Justinian, still continued a mysterious science and a
profitable trade, and the innate perplexity of the study was involved in
tenfold darkness by the private industry of the practitioners. The
expense of the pursuit sometimes exceeded the value of the prize, and
the fairest rights were abandoned by the poverty or prudence of the
claimants. Such costly justice might tend to abate the spirit of
litigation, but the unequal pressure serves only to increase the
influence of the rich, and to aggravate the misery of the poor. By these
dilatory and expensive proceedings, the wealthy pleader obtains a more
certain advantage than he could hope from the accidental corruption of
his judge. The experience of an abuse, from which our own age and
country are not perfectly exempt, may sometimes provoke a generous
indignation, and extort the hasty wish of exchanging our elaborate
jurisprudence for the simple and summary decrees of a Turkish cadi. Our
calmer reflection will suggest that such forms and delays are necessary
to guard the person and property of the citizen; that the discretion of
the judge is the first engine of tyranny, and that the laws of a free
people should foresee and determine every question that may probably
arise in the exercise of power and the transactions of industry. But the
government of Justinian united the evils of liberty and servitude; and
the Romans were oppressed at the same time by the multiplicity of their
laws and the arbitrary will of their master.
FOOTNOTES:
[26] Among the works which have been recovered, by the persevering and
successful endeavors of M. Mai and his followers to trace the
imperfectly erased characters of the ancient writers on these
palimpsests, Gibbon at this period of his labors would have hailed with
delight the recovery of the _Institutes_ of Gaius, and the fragments of
the Theodosian _Code_, published by M. Peyron of Turin.