ascribed to the domestic animal at any moment of the year preceding his death; a similar latitude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual: the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the decemvirs had confounded all hasty insults, which did not amount to the fracture of a limb, by condemning the aggressor to the common penalty of twenty-five ases. But the same denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce; and the insolence of a wealthy Roman indulged himself in the cheap amusement of breaking and satisfying the law of the Twelve Tables. Veratius ran through the streets striking on the face the inoffensive passengers, and his attendant purse-bearer immediately silenced their clamours by the legal tender of twenty-five pieces of copper, about the value of one shilling. The equity of the prætors examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages, the magistrate assumed a right to consider the various circumstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person; but if he admitted the idea of a fine, a punishment, an example, he invaded the province, though, perhaps, he supplied the defects, of the criminal law.

*

The execution of the Alban dictator, who was dismembered by eight horses, is represented by Livy as the first and the last instance of Roman cruelty in the punishment of the most atrocious crimes. But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The Twelve Tables afford

* Aulus Gellius (Noct. Attic. 20. 1) borrowed this story from the Commentaries of Q. Labeo on the Twelve Tables.

The narrative of Livy (1. 28) is weighty and solemn. At tu dictis Albane maneres is a harsh reflection, unworthy of Virgil's humanity. (Eneid, 8. 643.) Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Æneas (tom. iii, p. 229). [The fate of Mettus is regarded by Niebuhr as undeniably poetical" (Lectures, i, 127). Livy altered some parts of the story to give it an air of plausibility, and took the opportunity of flattering his countrymen by a very undeserved compliment.-ED.]

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a more decisive proof of the national spirit, since they were framed by the wisest of the senate, and accepted by the free voices of the people; yet these laws, like the statutes of Draco,* are written in characters of blood. They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastisements of flagellation and servitude; and nine crimes. of a very different complexion are adjudged worthy of death. 1. Any act of treason against the State, or of correspondence with the public enemy. The mode of execution was painful and ignominious; the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and, after he had been scourged by the lictor, he was suspended in the midst of the Forum on a cross, or inauspicious tree. 2. Nocturnal meetings in the city; whatever might be the pretence, of pleasure, or religion, or the public good. 3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic, and the chaste virtues of the Roman matrons.‡

* The age of Draco (Olympiad 39, 1) is fixed by Sir John Marsham (Canon Chronicus, p. 593-596) and Corsini (Fasti Attici, tom. iii, p 62). For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c. The seventh, de delictis, of the Twelve Tables, is delineated by Gravina. (Opp. p. 292, 293, with a Commentary, p. 214-230.) Aulus Gellius (20. 1) and the Collatio Legum Mosaicarum et Romanarum afford much original information.

Livy mentions two remarkable and flagitious eras, of three thousand persons accused, and of one hundred and ninety noble matrons convicted, of the crime of poisoning (40. 43. 8. 18). Mr. Hume discriminates the ages of private and public virtue (Essays, vol. i, p. 22, 23). I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation. [Livy himself doubts the earliest of these: non omnes auctores sunt." Great sickness and mortality prevailed in Rome A.U.C. 422, and the wives of 190 patricians are said to have been convicted on the evidence of an "ancilla," of having administered or prepared poison for all their families. No motive whatever is assigned for so diabolical a conspiracy, and the whole tale is so full of inconsistencies, that Niebuhr left it unnoticed. (See Appendix to

The parricide who violated the duties of nature and gratitude, was cast into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added as the most suitable companions.* Italy produces no monkeys; but the want could never be felt, till the middle of the sixth century first revealed the guilt of a parricide. 4. The malice of an incendiary. After the previous ceremony of whipping, he himself was delivered to the flames; and in this example alone our reason is tempted to applaud 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 was suspended as a grateful victim to Ceres. But the Sylvan deities were his History of Rome, vol. ii, p. 262, edit. Bohn.) The other is said to have occurred in Sardinia A.U.c. 574, when C. Monius was sent there as prætor. It is related with the most off-hand indifference. If 3000 persons had been implicated in such a crime, there would surely have been some formal record of their guilt and punishment. The criminals and their victims would have left the island almost uninhabited.ED.]

The Twelve Tables and Cicero (pro Roscio Amerino, c. 25, 26) are content with the sack; Seneca (Excerpt. Controvers. 5, 4) adorns it with serpents; Juvenal pities the guiltless monkey (innoxia simiaSatir. 13. 156) Hadrian (apud Dositheum Magistrum, 1. 3, c. 16, p. 874-876, with Schulting's Note), Modestinus (Pandect. 48, tit. 9, leg. 9), Constantine (Cod. 1. 9, tit. 17), and Justinian (Institut. 1. 4, tit. 18), enumerate all the companions of the parricide. But this fanciful execution was simplified in practice. Hodie tamen vivi exuruntur vel ad bestias dantur (Paul. Sentent. Recept. 1. 5, tit. 24, p. 512, edit. Schulting). + The first parricide at Rome was L. Ostius, after the second Punic war (Plutarch in Romulo, tom. i, p. 57). During the Cimbric, P. Malleolus was guilty of the first matricide (Liv. Epitom. 1. 68). Horace talks of the formidine fustis (1. 2, epist. 2. 154); but Cicero de Republica (1. 4, apud Augustin, de Civitat. Dei, 1. 2, c. 9, in Fragment. Philosoph. tom. iii, p. 393, edit. Olivet) affirms, that the decemvirs made libels a capital offence: cum perpaucas res capite sanxissent—perpaucas !

*

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, 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 Bynkershoek (Observat. Juris Rom. 1. 1, c. 1, in Opp. tom. i, p. 9-11) labours to prove that the creditors divided not the body, but the price of the insolvent debtor. Yet his interpretation is one perpetual harsh metaphor; nor can he surmount the Roman authorities of Quintilian, Cæcilius, Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. 20. 1. [Aulus Gellius, in an imaginary conversation, satirizes the barbarisms of early language, by laughing at a literal interpretation of the word secanto in the twelve tables. Cæcilius and Favonius are only supposed interlocutors, and must not be mistaken for assertors of a horrid legal right which never existed. No Roman jurist ever contended for it, and Gibbon treats it with the same irony as Aulus Gellius, who concludes in the following words: "Dissectum esse autiquitus neminem, equidem, neque legi, neque audivi." Had the question ever been gravely regarded in a different light Montesquieu would not have failed to notice it, when he sc severely condemned the cruelty of the Roman law, for dooming an insolvent debtor even to slavery (Esprit des Lois, 12. 21). Niebuhr, who in his History (c. 40) had taken the word secanto literally, afterwards placed in a very clear and correct light the Roman "Law of Debtors" (Lectures 1. 224-238): A borrower could pledge himself and his family for the debt incurred. In the event of his inability to pay, they all became slaves, or more properly nexi. Sometimes the debtor himself was imprisoned and harshly treated, in the hope that his kindred would pay the money and release him: or they were all sold; or they were allowed to work till the produce of their labour was equivalent to the demand of the creditors, and then freedom was regained. In the two latter cases, where there were several creditors, each had his share; and this was the division of the person, which, by straining the letter of the law, might be mistaken for a dismemberment of the body. The individual who thus came into bondage was not termed servus, but nexus, as being conditionally bound, and could at any time be restored to full liberty, by the payment of what he owed. This is quite incompatible with the cruel right of putting him to death. More justly might it have been imagined that Shakspeare had studied the Roman law for his defence of Antonio against Shylock : "Si plus minusve secuerint, se fraude esto."-ED.]

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 rigour. 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 gaols 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 inheri tance. In some pressing emergencies, the citizen was VOL. V.