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.