CHAP. self was delivered to the flames; and in this ex. XLIV. ample alone our reason is tempted to approve 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 neighbour's corn. The criminal wassuspended 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, ta exhaust the strength of an enemy, to extinguish his life, and remove from their seats his deeprooted 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.

* Horace talks of the formidine fustis (1. ii. epist. ii. 154.); but Cicero (de Republica, 1. iv. apud Augustin. de Civitat. Dei, ix. 6. in Fragment. Philosoph. tom. iii. P. 393. edit. Olivet) affirms that the decemvirs made libels capital offence: : cum perpaucas res capite fauxissent-perpaucas!

a

criticism *. After the judicial proof or confession CHAP.
of the debt, thirty days of grace were allowed XLIV.
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 unrelent-
ing, 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 de-
cemvirs was abolished by the humanity of accusers,
witnesses, and judges; and impunity became the
consequence of immoderate rigour. The Porcian
and Valerian laws prohibited the magistrates from

X 96

inflicting 37. zali. 27.

* Bynkershoek (Observat. Juris Rom. 1. i. c. 1. in Opp. tom. i. p. 9, 10, 11.) labours to prove that the creditors divided not the body, but the price, of the insolvent debtor. Yet his interpretation is one perpetual harsh mataphor; nor can he sur mount the Roman authorities of Quintilian, Cæcilius, Favonius, and Tertullian. See Aulus Gellius, Noct. Attic xxi,

XLIV.

CHAP. inflicting on a free citizen any capital, or ever corporal punishment; and the obsolete statutes of blood were artfully, and perhaps truly, ascribed to the spirit, riot of patrician, but of regal, tyranny.

Abolition or oblivion of pe. nal laws.

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 goals, 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 stispicion 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 prin ciples 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 authorised 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 day-light a robber could not be slain without

without some previous evidence of danger and CHAP. complaint. Whoever surprised an adulterer in his XLIV. nuptial bed might freely exercise his revenge *; the most bloody or 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 a 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 honour, were unknown to the Romans;

* The first speech of Lysias (Reisse, Orator, Græc. tom. v. p. 2-48.) is in defence of an husband who had killed the adulterer. The right of husbands and fathers at Rome and Athens is discussed with much learning by Dr. Taylor (Lectiones Lysiacæ, c. ix. in Reiske, tom. vi. p. 301-308.).

+ See Casaubon ad Athenæum, l. i. c. 5. p. 19. Percurrent raphanique mugilesque (Catull. p. 41, 42. edit. Vossian.). Hunc mugilis intrat (Juvenal Satir. x. 317.). Hunc permiaxere calones (Horat. 1. i. Satir. ii. 44.) familiæ stuprandum dedit... fraudi non fuit (Val. Maxim. 1. vi. c. 1. No. 13.).

‡ This law is noticed by Livy (ii. 8.) and Plutarch (in Publicola, tom. i. p. 187.): and it fully justifies the public opinion X on the death of Cæsar, which Suetonius could publish under the Imperial government. Jure cæsus existimatur (in Julio, c. 76.). Read the letters that passed between Cicero and Matius a few months after the ides of March (ad Fam. xi. 27, 28.).

§ Πρωτοι δε Αθηναιοι τον τε σίδηρον κατεθεντο. Thucydid. 1. i. c. 6. The historian who considers this circumstance as the test of civilization, would disdain the barbarism of an European court.

CHAP. Romans; and, during the two purest ages, from XLIV. the establishment of equal freedom to the end of

Revival of capital pu

the Punic wars, the city was never disturbed by sedition, and rarely poluted 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 t.

The first imperfect attempt to restore the prohishments. portion of crimes and punishments, was made by

91

the dictator Sylla, who, in the midst of his sanguinary triumph, aspired to restrain the licence, rather than to oppress the liberty, of the Romans. He gloried in the arbitrary proscription of four thousand

* He first rated at millies (800,000l.) the damages of Sicily (Divinatio in Cæcilium, c. 5.), which he afterwards reduced to quadringenties (320,0001.) -1 Actio in Verrem, c. 18.) and was finally content with tricies (24,000%.). Plutarch in Ciceron. tom. iii. p. 1584.) has not dissembled the popular suspicion and report.

↑ Verres lived near thirty years after his trial, till the second triumverate, when he was proscribed by the taste of Mark-Antony for the sake of his Corinthian plate (Plin. Hist. Natur. xxxiv. 3.).