The

A new spirit of legislation, respectable even in its error, arose in the empire with the religion of Constantine.* 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 pæderasty; 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. 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 prewas acted with impunity. * See the laws of Constantine and his successors against adultery, sodomy, &c. in the Theodosian (1. 9, tit. 7, leg. 7; 1. 11, tit. 36, leg. 1. 4,) and Justinian Codes (1. 9, tit. 9, leg. 30, 31). These princes speak the language of passion as well as of justice, and fraudulently ascribe their own severity to the first Cæsars. Justinian, Novel. 77. 134. 141. Procopius, in Anecdot. c. 11. 16, with the Notes of Alemannus. Theophanes, p. 151. Cedrenus, p. 368,

lates 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 pæderasty became the crime of those to whom no crime could be imputed. A French philosopher* 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 favourable persuasion of the saine 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.†

The free citizens of Athens and Rome enjoyed, in all criminal cases, the invaluable privilege of being tried by their country. 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 someZonaras, 1. 14, p. 64. * Montesquieu, Esprit des Loix, 1.12 c. 6. That eloquent philosopher conciliates the rights of liberty and of nature, which should never be placed in opposition to each other.

For the corruption of Palestine, two thousand years before the Christian era, see the history and laws of Moses. Ancient Gaul is stigmatized by Diodorus Siculus (tom. i, 1. 5, p. 356); China by the Mahometan and Christian travellers, (Ancient Relations of India and China, p. 34, translated by Renaudot, and his bitter critic, the Père Premare, Lettres Edifiantes, tom. xix, p. 435); and native America by the Spanish historians. (Garcilaso de la Vega, 1. 3, 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 important subject of the public questions and judgments at Rome is explained with much learning, and in a classic style, by Charles Sigonius, (1. 3, de Judiciis, in Op. tom. iii, 679-864,) and a good abridgment may be found in the République Romaine of Beaufort (tom. ii, 1. 5, 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. ↳ 1. et 2, ad Institut. 1. 4, tit. 17. Element. de Antiquitat.) and Gravina

times applaud the happiness of the Persian, whose fate depended on the caprice of a single tyrant. Some salutary restraints, imposed by the people on 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 favourable 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 addressed 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; for prætors were annually empowered to sit in judgment on the state offences of treason, extortion, peculation, and bribery; and Sylla added new prætors 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. To discharge this

(Op. 230-251). *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 which they have exempted the criminal. [The office of Judge underwent many changes, among the Romans. At first exercised by the people,

important though burthensome office, an annual list of ancient and respectable citizens was formed by the prætor. 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 favourable doubt. 3. In his civil jurisdiction, the prætor 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 explanations; the order of despotism is simple and inanimate. Before the age of Justinian, or perhaps of Diocletian, the decuries of Roman judges had it was insensibly and gradually usurped by the Senators, till Caius Gracchus, about A.U.C. 628, obtained a law, which appointed something like a jury, to be selected out of three hundred knights. Then the Lex Servilia, A.U.C. 653, enacted, that, with the Knights, there should be an equal number of Senators. But this lasted only nine years, when the Lex Livia appointed a permanent commission, out of this mixed body, called the Quæstiones Perpetuæ, to try offenders and decide law-suits. Sylla next, about A.U.c. 670, transferred this power to the Prætors, whose number he increased to eight. They not only decided the question of innocence or guilt, but after having given their verdict and pronounced sentence, they had also the right of pardoning. (Niebuhr, Lectures, vol. ii, p. 297. 345. 389; vol. iii, p. 21.)-ED.]

*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,

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.

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.* 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 Cæsars; 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 dispatch were recompensed by the applause of the public, the decent honours of burial, and the validity of their testaments. The exquisite avarice and cruelty of Domitian appears 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. Yet the

*Polyb. 1. 6, p. 643. The extension of the empire and city cf Rome, obliged the exile to seek a more distant place of retirement. [Gibbon's misconception of the Roman law on this subject has been pointed out, and its true import stated in a Note on ch. 38, vol. iv, p. 186.—ED.]

+ Qui de se statuebant, humabantur corpora, manebant testamenta; pretium festinandi. Tacit. Annal. 6. 25, with the notes of Lipsius.

Julius Paulus (Sentent. Recept. 1. 5, tit. 12, p. 476), the Pandects 1. 48, tit. 21), the Code (1. 9, tit. 50), Bynkershoek (tom. i, p. 59. Observat. J. C. R. 4. 4), and Montesquieu (Esprit des Loix, 1. 29, c. 9,)