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. 197 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
paederasty; 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. 198 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 paederasty became the crime of those
to whom no crime could be imputed. A French philosopher 199 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. 200

197 (return) [ See the laws of Constantine and his successors
against adultery, sodomy &c., in the Theodosian, (l. ix. tit.
vii. leg. 7, l. xi. tit. xxxvi leg. 1, 4) and Justinian Codes,
(l. ix. tit. ix. leg. 30, 31.) These princes speak the language
of passion as well as of justice, and fraudulently ascribe their
own severity to the first Caesars.]

198 (return) [ Justinian, Novel. lxxvii. cxxxiv. cxli. Procopius
in Anecdot. c. 11, 16, with the notes of Alemannus. Theophanes,
p. 151. Cedrenus. p. 688. Zonaras, l. xiv. p. 64.]

199 (return) [ Montesquieu, Esprit des Loix, l. xii. c. 6. That
eloquent philosopher conciliates the rights of liberty and of
nature, which should never be placed in opposition to each
other.]

200 (return) [ For the corruption of Palestine, 2000 years before
the Christian aera, see the history and laws of Moses. Ancient
Gaul is stigmatized by Diodorus Siculus, (tom. i. l. v. p. 356,)
China by the Mahometar and Christian travellers, (Ancient
Relations of India and China, p. 34 translated by Renaudot, and
his bitter critic the Pere Premare, Lettres Edifiantes, tom. xix.
p. 435,) and native America by the Spanish historians,
(Garcilasso de la Vega, l. iii. c. 13, Rycaut’s translation; and
Dictionnaire de Bayle, tom. iii. p. 88.) I believe, and hope,
that the negroes, in their own country, were exempt from this
moral pestilence.]

The free citizens of Athens and Rome enjoyed, in all criminal
cases, the invaluable privilege of being tried by their country.
201 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 or 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 praetors were annually empowered to sit
in judgment on the state offences of treason, extortion,
peculation, and bribery; and Sylla added new praetors 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, who with some truth, and more prejudice, have
been compared to the English juries. 202 To discharge this
important, though burdensome office, an annual list of ancient
and respectable citizens was formed by the praetor. 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. 203 3. In his
civil jurisdiction, the praetor 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.

201 (return) [The important subject of the public questions and
judgments at Rome, is explained with much learning, and in a
classic style, by Charles Sigonius, (l. iii. de Judiciis, in Opp.
tom. iii. p. 679—864;) and a good abridgment may be found in the
Republique Romaine of Beaufort, (tom. ii. l. v. p. 1—121.) Those
who wish for more abstruse law may study Noodt, (de Jurisdictione
et Imperio Libri duo, tom. i. p. 93—134,) Heineccius, (ad
Pandect. l. i. et ii. ad Institut. l. iv. tit. xvii Element. ad
Antiquitat.) and Gravina (Opp. 230—251.)]

202 (return) [ The office, both at Rome and in England, must be
considered as an occasional duty, and not a magistracy, or
profession. But the obligation of a unanimous verdict is peculiar
to our laws, which condemn the jurymen to undergo the torture
from whence they have exempted the criminal.]

203 (return) [ We are indebted for this interesting fact to a
fragment of Asconius Pedianus, who flourished under the reign of
Tiberius. The loss of his Commentaries on the Orations of Cicero
has deprived us of a valuable fund of historical and legal
knowledge.]

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. 204 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 Caesars; 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. 205 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. 206 Yet the civilians have always respected the natural
right of a citizen to dispose of his life; and the posthumous
disgrace invented by Tarquin, 207 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 Virgil among the unfortunate, rather than the
guilty; 208 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.

204 (return) [Footnote 204: Polyb. l. vi. p. 643. The extension
of the empire and city of Rome obliged the exile to seek a more
distant place of retirement.]

205 (return) [ Qui de se statuebant, humabanta corpora, manebant
testamenta; pretium festinandi. Tacit. Annal. vi. 25, with the
Notes of Lipsius.]

206 (return) [ Julius Paulus, (Sentent. Recept. l. v. tit. xii.
p. 476,) the Pandects, (xlviii. tit. xxi.,) the Code, (l. ix.
tit. l.,) Bynkershoek, (tom. i. p. 59, Observat. J. C. R. iv. 4,)
and Montesquieu, (Esprit des Loix, l. xxix. c. ix.,) define the
civil limitations of the liberty and privileges of suicide. The
criminal penalties are the production of a later and darker age.]

207 (return) [ Plin. Hist. Natur. xxxvi. 24. When he fatigued his
subjects in building the Capitol, many of the laborers were
provoked to despatch themselves: he nailed their dead bodies to
crosses.]

208 (return) [ The sole resemblance of a violent and premature
death has engaged Virgil (Aeneid, vi. 434—439) to confound
suicides with infants, lovers, and persons unjustly condemned.
Heyne, the best of his editors, is at a loss to deduce the idea,
or ascertain the jurisprudence, of the Roman poet.]

The penal statutes form a very small proportion of the sixty-two
books of the Code and Pandects; and in all judicial proceedings,
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
Latin shepherd who had planted a colony on the banks of the
Tyber. 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 cadhi. 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.