But there were also crimes against individuals which were punished with the death penalty. Willful murder, poisoning, parricide, were capitally punished. Adultery was punished by banishment, beside a forfeiture of considerable property. [Footnote: D, 48, 5.] Constantine made it a capital offense. The Romans made adultery to consist in sexual intercourse with another man's wife, but not with a woman who was not married, even if he were married. Rape was punished with death [Footnote: C. 9, 13.] and confiscation of goods, as in England till a late period, when transportation for life became the penalty. The punishments inflicted for forgery, coining base money, and perjury, were arbitrary. Robbery, theft, patrimonial damage, and injury to person and property, were private trespasses, and not punished by the state. After a lapse of twenty years, without accusation, crimes were supposed to be extinguished. The Cornelian, Pompeian, and Julian laws formed the foundation of criminal jurisprudence, which never attained the perfection that was seen in the Civil Code. It was in this that the full maturity of wisdom was seen. The emperors greatly increased the severity of punishments, as probably necessary in a corrupt state of society. After the decemviral laws fell into disuse, the Romans, in the days of the republic, passed from extreme rigor to great lenity, as is observable in the transition from the Puritan regime to our times in the United States. Capital punishment for several centuries was exceedingly rare, and this was prevented by voluntary exile. Under the empire, public executions were frequent and revolting.
[Sidenote: Fines.]
[Sidenote: Exile.]
Fines were a common mode of punishment with the Romans, as with the early Germans. Imprisonment in a public jail was also rare, the custom of bail being in general use. Although retaliation was authorized by the Twelve Tables for bodily injuries, it was seldom exacted, since pecuniary compensation was taken in lieu. Corporal punishments were inflicted upon slaves, but rarely upon citizens, except for military crimes. But Roman citizens could be sold into slavery for various offenses, chiefly military, and criminals were often condemned to labor in the mines or upon public works. Banishment was common—aquae et ignis interdictio—and this was equivalent to the deprivation of the necessities of life, and incapacitating a person from exercising the rights of citizenship. Under the emperors, persons were confined often on the rocky islands off the coast, or a compulsory residence in a particular place assigned. Thus Chrysostom was sent to a dreary place on the banks of the Euxine. Ovid was banished to Tomi. Death, when inflicted, was by hanging, scourging, and beheading, also by strangling in prison. Slaves were often crucified, and were compelled to carry their cross to the place of execution. This was the most ignominious and lingering of all deaths. It was abolished by Constantine from reverence to the sacred symbol. Under the emperors, execution took place also by burning alive and exposure to wild beasts. It was thus the early Christians were tormented, since their offense was associated with treason. Persons of distinction were treated with more favor than the lower classes, and the punishment was less cruel and ignominious. Thus Seneca, condemned for privity to treason, was allowed to choose his mode of death. The criminal laws of modern European states followed too often the barbarous custom of the emperors until a recent date. Since the French Revolution, the severity of the penal codes has been much modified.
[Sidenote: Excellence of laws pertaining to property.]
[Sidenote: Rights of citizens.]
The penal statutes of Rome, as Gibbon emphatically remarks, "formed a very small portion of the Code and the Pandects; and in all judicial proceedings, the life or death of the citizen was determined with less caution and delay than the most ordinary question of covenant or inheritance." This was owing to the complicated relations of society, by which obligations are created or annulled, while duties to the state are explicit and well known, being inscribed not only on tables of brass, but on the conscience itself. It was natural, with the growth and development of commerce and dominion, that questions would arise which could not be ordinarily settled by ancient customs, and the practice of lawyers and the decisions of judges continually raised new difficulties, to be met only by new edicts. It is a pleasing fact to record that jurisprudence became more just and enlightened as it became more intricate. The principles of equity were more regarded under the emperors than in the time of Cato. It is in the application of these principles that the laws of the Romans have obtained so high consideration. Their abuse consisted in the expense of litigation, and the advantages which the rich thus obtained over the poor. But if delays and forms led to an expensive and vexatious administration of justice, these were more than compensated by the checks which a complicated jurisprudence gave to hasty or partial decisions. It was in the minuteness and precision of the forms of law, and in the foresight with which questions were anticipated in the various transactions of business, that prove that the Romans, in their civil and social relations, were very much on a level with modern times. And it would be difficult to find, in the most enlightened of modern codes, greater wisdom and foresight than what appear in the legacy of Justinian, as to all questions pertaining to the nature, the acquisition, the possession, the use, and the transfer of property. Civil obligations are most admirably defined, and all contracts are determined by the wisest application of the natural principles of justice. What can be more enlightened than the laws which relate to leases, to sales, to partnerships, to damages, to pledges, to hiring of work, and to quasi contracts! How clear the laws pertaining to the succession to property, to the duties of guardians, to the rights of wards, to legacies, to bequests in trust, and to the general limitation of testamentary powers! How wise the regulations in reference to intestate succession, and to the division of property among males and females. We find no laws of entail, no unequal rights, no absurd distinctions between brothers, no peculiar privileges given to males over females, or to older sons. In the Institutes of Justinian, we see on every page a regard to the principles of natural justice. We discover that the property of the wife cannot be alienated nor mortgaged by a prodigal husband; that wards are to be protected from the cupidity of guardians; that property could be bequeathed by will, and that wills are sacred; that all promises are to be fulfilled; that he who is intrusted with the property of another is bound to restitution by the most imperative obligations; that usury should be restrained; that all injuries should be repaired; that cattle and slaves should be protected from malice and negligence; that atrocious cruelties in punishment should not be inflicted; that malicious witnesses should be punished; that corrupt judges should be visited with severe penalties; that libels and satires should subject their authors to severe chastisement; that every culprit should be considered innocent until his guilt was proved. In short, every thing pertaining to property and contracts and wills is guarded with the most zealous care. A man was sure of possessing his own, and of transmitting it to his children. No infringement on personal rights could be tolerated. A citizen was free to go where he pleased, to do whatsoever he would, if he did not trespass on the rights of another; to seek his pleasure unobstructed, and pursue his business without vexatious incumbrances. If he was injured or cheated, he was sure of redress. Nor could he be easily defrauded with the sanction of the laws. A rigorous police guarded his person, his house, and his property. He was supreme and uncontrolled within his family. And this security to property and life and personal rights was guaranteed by the greatest tyrants. The fullest personal liberty was enjoyed under the emperors, and it was under their sanction that jurisprudence, in some of the most important departments of life, reached perfection. If injustice was suffered, it was not on account of the laws, but the depravity of men, the venality of the rich, and the tricks of lawyers. But the laws were wise and equal. The civil jurisprudence could be copied with safety by the most enlightened of European states. And, indeed, it is the foundation of their civil codes, especially in France and Germany.
[Sidenote: Abuse of paternal power.]
That there were some features in the Roman laws which we, in these Christian times, cannot indorse, and which we reprehend, cannot be denied. Under the republic, there was not sufficient limit to paternal power, and the paterfamilias was necessarily a tyrant. It was unjust that the father should control the property of his son, and cruel that he was allowed such absolute control, not only over his children, but his wife. But the limits of paternal power were more and more curtailed, so that under the latter emperors, fathers were not allowed to have more authority than was perhaps expedient.
[Sidenote: Evils of slavery.]