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 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; 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 *The first speech of Lysias (Reiske, Orator. Græc. tom. v, p. 2-48) is in defence of a 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. 11, in Reiske, tom. vi, p. 301-308). See Casaubon ad Athenæum (1. 1, c. 5, p. 19). Percurrent raphanique mugilesque (Catull. p. 41, 42, edit. Vossian.). Hunc mugilis intrat (Juvenal. Satir. 10. 317). Hunc perminxere calones (Horat. 1. 1, Satir. 2. 44). Familiæ stuprandum dedit... fraudi non fuit (Val. Maxim. 1. 6, c. 1, No. 13.). This law is noticed by Livy (2. 8) and Plutarch (in Publicola, tom. 1, p. 187); and it fully justifies the public opinion on the death of Cæsar, which Suetonius could publish under the imperial government. Jure casus existimatur (in Julio, c. 76). Read the letters that passed between Cicero and Matius a few months after the ides of March (ad Fam. 11. 27, 28). § Πρῶτοι δὲ Αθηναῖοι τόν τε σίδηρον κατέθεντο. Thucydid. 1. 1, c. 6. The historian who considers this circumstance as the test of civilization, would disdain the barbarism of a European court. [Rival factious disregarded this, and carried their concealed weapons ready to be opportunely used. See Horace, Epod. 7. Carm. 4, 15.-ED.] 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 pecu niary 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 proportion of crimes and punishments, was made by 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 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 * He first rated at millies (800,0007.) the damages of Sicily (Divinatio in Cæcilium, c. 5), which he afterwards reduced to quadringenties (320,000-1 Actio in Verrem, c. 18), and was finally content with tricies (24,000l.). 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 triumvirate, when he was proscribed by the taste of Mark Antony for the sake of his Corinthian plate (Plin. Hist. Natur. 34. 3). Such is the number assigned by Valerius Maximus (1. 9, c. 2, No. 1). Florus (4. 21) distinguishes two thousand senators and knights; Appian (de Bell. Civil. 1. 1, c. 95, tom. ii, p. 133, edit. Schweighæuser) more accurately computes forty victims of the senatorian rank, and one thousand six hundred of the equestrian census or order. [Proneness to bloodshed has been already noticed as a feature of Roman character. Sylla "set the first example of a proscription, that is, he first made out a list of those who might not only be killed with impunity, but on whose heads a price was set. Yet his victims were few compared with those of Marius and Cinna, although his revenge was fearful in the extent of suffering which it inflicted. His proscription affected the lives of several thousands; it is said to have included two thousand four hundred knights alone; but this number seems doubtful. Appian says, two thousand six hundred; in these he included all who perished in battle." (Niebuhr, Lectures, ii. 383.)—ED.] and water. The Cornelian, and afterwards the Pompeian and Julian laws, introduced a new system of criminal jurisprudence; and the emperors, from Augustus to Justinian, disguised their increasing rigour 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 honourable persons; meaner criminals were either hanged or burnt, 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 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, * For the penal laws (Leges Cornelia, Pompeiæ, Juliæ, of Sylla, Pompey, and the Cæsars) see the sentences of Paulus (1. 4, tit. 18-30, p. 497-528, edit. Schulting); the Gregorian Code (Fragment. 1. 19, p. 705, 706, in Schulting); the Collatio Legum Mosaicarum et Romanarum (tit. 1-15); the Theodosian Code (1. 9); the Code Justinian 1. 9); the Pandects (48); the Institutes (1. 4, tit. 18); and the Greek version of Theophilus (p. 917-926). It was a guardian who had poisoned his ward. The crime was atrocious; yet the punishment is reckoned by Suetonius (c. 9) among the acts in which Galba shewed himself acer, vehemens, et in delictis coercendis immodicus. The abactores or abigeatores, who drove one horse, or two mares or oxen, or five hogs, or ten goats, were subject to capital punishment (Paul. Sentent. Recept. 1. 4, tit. 18, p. 497, 498). Hadrian (ad Concil. Botica), most severe where the offence was most frequent, condemns 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 wrongs;† 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 Pandects. I touch with reluctance, and dispatch 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 the criminals ad gladium, ludi damnationem (Ulpian de Officio Proconsulis, 1. 8, in Collatione Legum Mosaic. et Rom. tit. 11, p. 235). * Till the publication of the Julius Paulus of Schulting (1. 2, tit. 26, p. 317-323,) it was affirmed and believed, that the Julian laws punished adultery with death; and the mistake arose from the fraud or error of Tribonian. Yet Lipsius had suspected the truth from the narrative of Tacitus (Annal. 2, 50. 3, 24. 4, 42.) and even from the practice of Augustus, who distinguished the treasonable frailties of his female kindred. + In cases of adultery, Severus confined to the husband the right of public accusation. (Cod. Justinian. 1. 9, tit. 9, leg. 1.) Nor is this privilege unjust-so different are the effects of male or female infidelity. Timon (1. 1,) and Theonompus (1. 43, apud Athenæum, 1. 12, p. 517,) describe the luxury and lust of the Etruscans: πολὺ μέν τοι γε χαιρουσι συνόντες τοῖς παισὶ Kai Toiç μɛipakioig. About the same period, (A.U.c. 445,) the Roman 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 honours 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 dishonour 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.T *The Persians had youth studied in Etruria. (Liv. 9. 36.) been corrupted in the same school: ἀπ ̓ Ελλήνων μαθόντες παισὶ μioyovraι. (Herodot. 1. 1, c. 135.) A curious dissertation might be formed on the introduction of pæderasty after the time of Homer, its progress among the Greeks of Asia and Europe, the vehemence of their passions, and the thin device of virtue and friendship which amused the philosophers of Athens. But, scelera ostendi oportet dum puniuntur, abscondi flagitia. The name, the date, and the provisions of this law, are equally doubtful. (Gravina, Op. p. 432, 433. Heineccius, Hist. Jur. Rom. No. 108. Ernesti, Clav. Ciceron. in Indice Legum.) But I will observe that the nefanda Venus of the honest German is styled aversa by the more polite Italian. See the Oration of Eschines against the catamite Timarchus. (in Reiske, Orator. Græc. tom. iii, p. 21-184.) SA crowd of disgraceful passages will force themselves on the memory of the classic reader: I will only remind him of the cool declaration of Ovid : Odi concubitus qui non utrumque resolvunt. : Ælius Lampridius, in Vit. Heliogabal. in Hist. August. p. 112. Aurelius Victor, in Philippo, Codex Theodos. 1. 9, tit. 7, and leg. 7, and Godefroy's Commentary, tom. iii, p. 63. Theodosius abolished the subterraneous brothels of Rome, in which the prostitution of both sexes |