The Romans divided crimes into public and private. Private crimes could be prosecuted only by the party injured, and were generally punished by pecuniary fines, as among the old Germanic nations.
Of public crimes the crimen laesae majestatis, or treason, was regarded as the greatest; and this was punished with death and with confiscation of goods, while the memory of the offender was declared infamous. Greater severity could scarcely be visited on a culprit. Treason comprehended conspiracy against the government, assisting the enemies of Rome, and misconduct in the command of armies. Thus Manlius, in spite of his magnificent services, was hurled from the Tarpeian Rock, because he was convicted of an intention to seize upon the government. Under the empire not only any attempt on the life of the Emperor was treason, but disrespectful words or acts. The criminal was even tried after death, that his memory might become infamous; and this barbarous practice was perpetuated in France and Scotland as late as the beginning of the seventeenth century. In England men have been executed for treasonable words. Besides treason there were other crimes against the State, such as a breach of the peace, extortion on the part of provincial governors, embezzlement of public property, stealing sacred things, bribery,most of which offences were punished by pecuniary penalties.
But there were also crimes against individuals, which were punished with the death penalty. Wilful murder, poisoning, and parricide were capitally punished. Adultery was punished by banishment, besides a forfeiture of considerable property; Constantine made it a capital offence. Rape was punished with death and confiscation of goods, as in England till a late period, when transportation for life became the penalty. The punishments inflicted for forgery, coining base money, and perjury were arbitrary. Robbery, theft, patrimonial damage, and injury to person and property were private trespasses, and not punished by the State. After a lapse of twenty years without accusation, crimes were supposed to be extinguished. The Cornelian, Pompeian, and Julian laws formed the foundation of criminal jurisprudence. This however never attained the perfection that was seen in the Civil Code, in which the full maturity of Roman wisdom was reached. The emperors greatly increased the severity of punishments, as was probably necessary in a corrupt state of society. After the decemviral laws fell into disuse, the Romans in the days of the republic passed from extreme rigor to great lenity, as is observable in the transition from the Puritan régime to our own times in the United States. Capital punishment for several centuries was exceedingly rare, and was frequently prevented by voluntary exile. Under the empire, again, public executions were frequent and revolting.
Fines were a common mode of punishment with the Romans, as with the early Germans. Imprisonment in a public jail was rare, the custom of bail being in general use. Although retaliation was authorized by the Twelve Tables for bodily injuries, it was seldom exacted, since pecuniary compensation was taken in lieu. Corporal punishments were inflicted upon slaves, but rarely upon citizens, except for military crimes; but Roman citizens could be sold into slavery for various offences, chiefly military, and criminals were often condemned to labor in the mines or upon public works. Banishment was common,aquae et ignis interdictio; and this was equivalent to the deprivation of the necessities of life and incapacitating a person from exercising the rights of citizenship. Under the emperors persons were confined often on the rocky islands off the coast, or in a compulsory residence in a particular place assigned. Thus Chrysostom was sent to a dreary place on the banks of the Euxine, and Ovid was banished to Tomi. Death, when inflicted, was by hanging, scourging, and beheading; also by strangling in prison. Slaves were often crucified, and were compelled to carry their cross to the place of execution. This was the most ignominious and lingering of all deaths; it was abolished by Constantine, from reverence to the sacred symbol. Under the emperors, execution took place also by burning alive and exposure to wild beasts; it was thus the early Christians were tormented, since their offence was associated with treason. Persons of distinction were treated with more favor than the lower classes, and their punishments were less cruel and ignominious; thus Seneca, condemned for privity to treason, was allowed to choose his mode of death. The criminal laws of modern European States followed too often the barbarous custom of the Roman emperors until a recent date. Since the French Revolution the severity of the penal codes has been much modified.
The penal statutes of Rome however, as Gibbon emphatically remarks, "formed a very small portion of the Code and the Pandects; and in all judicial proceedings the life or death of the citizen was determined with less caution and delay than the most ordinary question of covenant or inheritance." This was owing to the complicated relations of society, by which obligations are created or annulled, while duties to the State are explicit and well known, being inscribed not only on tables of brass, but on the conscience itself. It was natural, with the growth and development of commerce and dominion, that questions should arise which could not be ordinarily settled by ancient customs, and the practice of lawyers and the decisions of judges continually raised new difficulties, to be met only by new edicts. It is a pleasing fact to record, that jurisprudence became more just and enlightened as it became more intricate. The principles of equity were more regarded under the emperors than in the time of Cato. It is in the application of these principles that the laws of the Romans have obtained so high consideration; their abuse consisted in the expense of litigation, and the advantages which the rich thus obtained over the poor.
But if delays and forms led to an expensive and vexatious administration of justice, these were more than compensated by the checks which a complicated jurisprudence gave to hasty or partial decisions. It was in the minuteness and precision of the forms of law, and in the foresight with which questions were anticipated in the various transactions of business, that the Romans in their civil and social relations were very much on a level with modern times. It would be difficult to find in the most enlightened of modern codes greater wisdom and foresight than appear in the legacy of Justinian as to all questions pertaining to the nature, the acquisition, the possession, the use, and the transfer of property. Civil obligations are most admirably defined, and all contracts are determined by the wisest application of the natural principles of justice. Nothing can be more enlightened than the laws which relate to leases, to sales, to partnerships, to damages, to pledges, to hiring of work, and to quasi-contracts. The laws pertaining to the succession to property, to the duties of guardians, to the rights of wards, to legacies, to bequests in trust, and to the general limitation of testamentary powers were singularly clear. The regulations in reference to intestate succession, and to the division of property among males and females, were wise and just; we find no laws of entail, no unequal rights, no absurd distinction between brothers, no peculiar privileges given to males over females, or to older sons. Particularly was everything pertaining to property and contracts and wills guarded with the most jealous care. A man was sure of possessing his own, and of transmitting it to his children. In the Institutes of Justinian we see on every page a regard to the principles of natural justice: but moreover we find that malicious witnesses should be punished; that corrupt judges should be visited with severe penalties; that libels and satires should subject their authors to severe chastisement; that every culprit should be considered innocent until his guilt was proved.
No infringement on personal rights could be tolerated. A citizen was free to go where he pleased, to do whatsoever he would, if he did not trespass on the rights of another; to seek his pleasure unobstructed, and pursue his business without vexatious incumbrances. If he was injured or cheated, he was sure of redress; nor could he be easily defrauded with the sanction of the laws. A rigorous police guarded his person, his house, and his property; he was supreme and uncontrolled within his family. This security to property and life and personal rights was guaranteed by the greatest tyrants. Although political liberty was dead, the fullest personal liberty was enjoyed under the emperors, and it was under their sanction that jurisprudence in some of the most important departments of life reached perfection. If injustice was suffered it was not on account of the laws, but owing to the depravity of men, the venality of the rich, and the tricks of lawyers; the laws were wise and equal. The civil jurisprudence of the Romans could be copied with safety by the most enlightened of European States; indeed, it is already the foundation of their civil codes, especially in France and Germany.
That there were some features in the Roman laws which we in these Christian times cannot indorse, and which we reprehend, cannot be denied. Under the republic there was not sufficient limit to paternal power, and the pater familias was necessarily a tyrant. It was unjust that the father should control the property of his son, and cruel that he was allowed an absolute control not only over his children, but also his wife. Yet the limits of paternal power were more and more curtailed, so that under the later emperors fathers were not allowed to have more authority than was perhaps expedient.
The recognition of slavery as a domestic institution was another blot, and slaves could be treated with the grossest cruelty and injustice without possibility of redress. But here the Romans were not sinners beyond all other nations, and our modern times have witnessed a parallel. It was not the existence of slavery, however, which was the greatest evil, but the facility by which slaves could be made. The laws pertaining to debt were severe, and were most disgraceful in dooming a debtor to the absolute power of a creditor. To subject men of the same race to slavery for trifling debts which they could not discharge, was the great defect of the Roman laws. But even these cruel regulations were modified, so that in the corrupt times of the empire there was no greater practical severity than was common in England as late as one hundred years ago. The temptations to fraud were enormous in a wicked state of society, and demanded a severe remedy. It is possible that our modern laws may show too great leniency to debtors who are not merely unfortunate, but dishonest. The problem is not yet solved, whether men should be severely handled who are guilty of reckless and unprincipled speculations and unscrupulous dealings, or whether they should be allowed immunity to prosecute their dangerous and disgraceful courses.
Moreover, the penal code of the Romans in reference to breaches of trust or carelessness or ignorance, by which property was lost or squandered, may have been too severe, as is still the case in England in reference to hunting game on another's grounds. It was hard to doom a man to death who drove away his neighbor's cattle, or even entered in the night his neighbor's house; but severe penalties alone will keep men from crimes where there is a low state of virtue and religion, and general prosperity and contentment become impossible where there is no efficient protection to property. Society was never more secure and happy in England than when vagabonds could be arrested, and when petty larcenies were visited with certain retribution. Every traveller in France and England feels that in regard to the punishment of crime, those older countries, restricted as are their political privileges, are in most questions of secure and comfortable living vastly superior to our own. The Romans lost under the emperors their political rights, but gained protection and safety in their relations with society. Where quiet and industrious citizens feel safe in their homes, are protected from scoundrels in their dealings, have ample scope for industrial enterprise, and are free to choose their private pleasures, they resign themselves to the loss of electing their rulers without great unhappiness. There are greater evils in the world than the deprivation of the elective franchise, lofty and glorious as is this privilege. The arbitrary rule of the emperors was fatal to political aspirations and rights and the growth of a genuine manhood; yet it is but fair to note that the evils of political slavery were qualified and set off by the excellence of the civil code and the privileges of social freedom.
The great practical evil connected with Roman jurisprudence was the intricacy and perplexity and uncertainty of the laws, together with the expense involved in litigation. The class of lawyers was large, and their gains were extortionate. Justice was not always to be found on the side of right. The law was uncertain as well as costly. The most learned counsel could be employed only by the rich, and even judges were venal, so that the poor did not easily find adequate redress. But all this is the necessary attendant on a factitious state of society, and by many is regarded as being quite as characteristic of modern, civilized Christian England and America as it was of Pagan Rome. Material civilization leads to an undue estimate of money; and when money purchases all that artificial people desire, then all classes will prostitute themselves for its possession, and justice, dignity, and elevation of sentiment will be forced to retreat,as hermits sought a solitude when society had reached its lowest degradation, out of pure despair of its renovation.
AUTHORITIES
The authorities for this chapter are very numerous. Since the Institutes of Gaius have been recovered, many eminent writers on Roman law have appeared, especially in Germany and France. Many might be cited, but for all ordinary purposes of historical study the work of Lord Mackenzie on Roman Law, together with the articles of George Long in Smith's Dictionary, will be found most useful. Maine's Treatise on Ancient Law is exceedingly interesting and valuable. Gibbon's famous chapter should also be read by every student. There is a fine translation of the Institutes of Justinian, which is quite accessible, by Dr. Harris of Oxford. The Code, Pandects, Institutes, and Novels are of course the original authority, with the long-lost Institutes of Gaius.
In connection with the study of the Roman law, it would be well to read Sir George Bowyer's Commentaries on the Modern Civil Law. Also Irving, Introduction to the Study of the Civil Law; Lindley, Introduction to the Study of Jurisprudence; Wheaton's Elements of International Law; and Vattel, Le Droit des Gens.
THE FINE ARTS
ARCHITECTURE, SCULPTURE, PAINTING500-430 B.CMy object in the present lecture is not a criticism of the principles of art so much as an enumeration of its various forms among the ancients, to show that in this department of civilization they reached remarkable perfection, and were not inferior to modern Christian nations.
The first development of art among all the nations of antiquity was in architecture. The earliest buildings erected were houses to protect people from heat, cold, and the fury of the elements of Nature. At that remote period much more attention was given to convenience and practical utility than to beauty or architectural effect. The earliest houses were built of wood, and stone was not employed until temples and palaces arose. Ordinary houses were probably not much better than log-huts and hovels, until wealth was accumulated by private persons.