161

XVII.

ture.

voked their refentment, or refufed to purchase CHAP.
their filence. A faithful fubject, of Syria per-
haps, or of Eritain, was expofed to the danger,
or at least to the dread, of being dragged in
chains, to the court of Milan or Conftantinople,
to defend his life and fortune against the mali-
cious charge of these privileged informers. The
ordinary administration was conducted by those
methods which extreme neceffity can alone pal-
liate; and the defects of evidence were diligently
supplied by the use of torture 1.
The deceitful and dangerous experiment of the Ufe of tor
criminal quæftion, as it is emphatically styled, was
admitted, rather than approved, in the jurifpru-
dence of the Romans. They applied this fan-
guinary mode of examination only to fervile
bodies, whofe fufferings were feldom weighed by
those haughty republicans in the scale of justice
or humanity but they would never confent to
violate the facred perfon of a citizen, till they
poffeffed the cleareft evidence of his guilt 162.
The annals of tyranny, from the reign of Tibe-
rius to that of Domitian, circumftantially relate
the executions of many innocent victims; but, as
long as the fainteft remembrance was kept alive

161 For the Agentes in Rebus, fee Ammian. 1. xv. c. 3. l. xvi. c. 5, 1. xxii, c. 7, with the curious annotations of Valefius. Cod. Theod. 1. vi. tit. xxvii, xxviii, xxix. Among the paffages collected in the Commentary of Godefroy, the most remarkable one is from Libanius, in his discourse concerning the death of Julian.

162 The Pandects (1. xlviii, tit. xviii.) contain the fentiments of the most celebrated civilians on the fubject of torture. They strictly confine it to slaves; and Ulpian himself is ready to acknow. ledge, that Res eft fragilis, et periculofa, et quæ veritatem fallat.

of

CHAP. of the national freedom and honour, the last XVII. hours of a Roman were fecure from the danger of

ignominious torture 163. The conduct of the provincial magistrates was not, however, regulated by the practice of the city, or the strict maxims. of the civilians. They found the use of torture established not only among the flaves of oriental defpotifm, but among the Macedonians, who obeyed a limited monarch; among the Rhodians, who flourished by the liberty of commerce; and even among the fage Athenians, who had afferted and adorned the dignity of human kind 164. The acquiefcence of the provincials encouraged their governors to acquire, or perhaps to ufurp, a difcretionary power of employing the rack, to extort from vagrants or plebeian criminals the confeffion of their guilt, till they infenfibly proceeded to confound the distinction of rank, and to difregard the privileges of Roman citizens. The apprehenfions of the fubjects urged them to fo. licit, and the intereft of the fovereign engaged him to grant, a variety of special exemptions, which tacitly allowed, and even authorised, the general ufe of torture. They protected all perfons of illuftrious or honourable rank, bifhops

163 In the confpiracy of Pifo against Nero, Epicharis (libertina mulier) was the only perfon tortured; the relt were intacti tormentis. It would be fuperfluous to add a weaker, and it would be difficult to find a ftronger, example, Tacit Annal. xv. 57.

164 Dicendum ... de Inftitutis Athenienfium, Rhodiorum, doctiffimorum hominum, apud quos etiam (id quod acerbiffimum eft) liberi, civefque torquentur. Cicero. Partit. Orat. c. 34. We may learn from the trial of Philotas the practice of the Macedonians. (Diodor. Sicul. 1. xvii. p. 604. Q. Curt. 1. vi. c. 11.)

and

XVII.

and their prefbyters, profeffors of the liberal arts, c HA P.
foldiers and their families, municipal officers, and
their pofterity to the third generation, and all
children under the age of puberty 165. But a fatal
maxim was introduced into the new jurifprudence
of the empire, that in the cafe of treafon, which
included every offence that the fubtlety of lawyers
could derive from an hoftile intention towards the
prince or republic 166, all privileges were fufpend-
ed, and all conditions were reduced to the fame
ignominious level. As the fafety of the emperor
was avowedly preferred to every confideration of
justice or humanity, the dignity of age, and the
tenderness of youth, were alike expofed to the
moft cruel tortures; and the terrors of a mali
cious information, which might felect them as the
accomplices, or even as the witneffes, perhaps,
of an imaginary crime, perpetually hung over
the heads of the principal citizens of the Roman
world 167.

Thefe evils, however terrible they may appear, Finances, were confined to the fmaller number of Roman

165 Heineccius (Element. Jur. Civil. part vii. p. 81.) has collected thefe exemptions into one view.

166 This definition of the fage Ulpian (Pande&t. 1. xlviii. tit. iv.)
feems to have been adapted to the court of Caracalla, rather than
to that of Alexander Severus. See the Cudes of Theodofius and
Juftinian ad leg. Juliam majeftatis.

167 Arcadius Charifius is the oldeft lawyer quoted in the Pandects
to justify the univerfal practice of torture in all cafes of treason ;
but
this maxim of tyranny, which is admitted by Ammianus (l. xix.
c. 12.) with the most respectful terror, is enforced by several laws of
the fucceffors of Conftantine. See Cod. Theod. 1. ix, tit, xxxv.
majeftatis crimine omnibus æqua eft conditio.
G

VOL. III.

In

fubjects,

CHA P. fubjects, whofe dangerous fituation was in fome XVII. degree compenfated by the enjoyment of those

advantages, either of nature or of fortune, which exposed them to the jealousy of the monarch. The obfcure millions of a great empire have much less to dread from the cruelty than from the avarice of their masters; and their humble happiness is principally affected by the grievance of exceffive taxes, which gently preffing on the wealthy, defcend with accelerated weight on the meaner and more indigent claffes of fociety. An ingenious philofopher 168 has calculated the univerfal measure of the public impofitions by the degrees of freedom and fervitude; and ventures to affert, that, according to an invariable law of nature, it must always increase with the former, and diminish in a juft proportion to the latter. But this reflection, which would tend to alleviate the miseries of defpotifm, is contradicted at least by the history of the Roman empire;; which accufes the fame princes of defpoiling the fenate of its authority, and the provinces of their wealth. Without abolishing all the various customs and duties on merchandizes, which are imperceptibly discharged by the apparent choice of the purchafer, the policy of Conftantine and his fucceffors preferred a fimple and direct mode of taxation, more congenial to the spirit of an arbitrary government

169

168 Montefquieu, Esprit des Loix, 1. xii. c. 13.

169 . Hume (Effays, vol. i. p. 389.) has feen this important. truth, with fome degree of perplexity.

The

XVII.

The gene

or indic.

The name and ufe of the indictions 170, which CHA P. serve to ascertain the chronology of the middle ages, were derived from the regular practice of the Roman tributes 171. The emperor fubfcribed with ral tribute, his own hand,, and in purple ink, the folemn tion. edict, or indiction, which was fixed up in the principal city of each diocese, during two months previous to the first day of September. And, by a very easy connection of ideas, the word indiction was transferred to the measure of tribute which it prescribed, and to the annual term which it allowed for the payment. This general estimate of the supplies was proportioned to the real and imaginary wants of the ftate; but as often as the expence exceeded the revenue, or the revenue fell fhort of the computation, an additional tax, under the name of fuperindiction, was imposed on the people, and the most valuable attribute of fovereignty was communicated to the Prætorian præfects, who, on fome occafions, were permitted to provide for the unforeseen and extraordinary exigencies of the public fervice. The execution of these laws (which it would be tedious to pursue in

170 The cycle of indictions, which may be traced as high as the reign of Conftantius, or perhaps of his father Constantine, is still employed by the Papal court: but the commencement of the year has been very reasonably altered to the first of January. See l'Art de Verifier les Dates, p. xi.; and Dictionnaire Raifon. de la Diplomatique, tom. ii. p. 25. ; two accurate treatifes, which come from the workshop of the Benedictines.

171 The first twenty-eight titles of the eleventh book of the Theodofian Code are filled with the circumstantial regulations on the important fubject of tributes; but they fuppofe a clearer know. ledge of fundamental principles than it is at present in our power to attain.