XLIV

CHA P. 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 and 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

Justinian, Novel. lxxvii exxxiv. cxli. Procopius, in Anecdot. c. 11. 16. with the Notes of Alemannus. Theophanes. p. 151. Cedrenus, p. 368. Zonaras, 1. xiv. p. 64.

defended the propriety of the execution, since the CHA P. criminals would have lost their hands, had they XLIV. 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 prelates 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 pæ derasty 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 same 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 +.

H4

The

* Montesquieu, Esprit des Loix. 1. xii. 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, 2000 years before the Christian æra, see the history and laws of Moses. Ancient Gaul is stigmatised by Diodorus Siculus (tom. i. 1. v. 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 (Garcilasso de la Vega, l. iii. c. 13. Rycaut's translation; and Dictionaire de Bayle, tom. iii. p. 88.). I believe, and hope, that the negroes, in their own country, were exempt from this moral pestilence.

C. HA P.

XLIV.

Judgments

of the people.

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 preroga tive; 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 sometimes 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.

*The important subject of the public questions and judg ments at Rome is explained with much learning, and in a classic style, by Charles Sigonius (1. ii. de Judiciis, in Opp. tom. iii. 679-864); and a good abridgment may be found in the Republique Romaine of Beaufort (tom. ii. 1. v. p. 1-121.). Those who wish for more abstruse law, may study Noodt (de Jurisdictione et Imperio Libri duo, tom. i. p. 93-134.). He ineccius (ad Pandect. 1. i. et ii. ad Institut. iv. tit. xvii. Element, ad Antiquitat.), and Gravina (Opp. 230-251.).`

ponderate. Repeated proclamations and adjourn, CHA P.
ments were interposed, to allow time for prejudice XLIV.
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 ac
quitted; and in the defence of an illustrious client,
the orators of Rome and Athens address their ac
guments 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 of
fender became more difficult, as the citizens and
the offenders continually multiplied; and the ready
expedient was adopted of delegating the jurisdic-
tion of the people to the ordinary magistrates, or
to extraordinary inquisitors. In the first ages these
questions were rare and occasional. In the begin
ing of the seventh century of Rome they were
made perpetual: four prætors were annually em
powered 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 pro-
nounce the sentence of the majority of judges, who
with some truth, and more prejudice, have been
Compared to the English juries *. To discharge Select

this

The office, both at Rome and in England, must be considered as an occasional duty, and not a magistracy or profession.

But

judges.

1

2.512.

56.12

x

CHAP. this important though burthensome office, an an XLIV. nual 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 firteen 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 legis lator; but as soon as he had prescribed the action of law, he often referred to a delegate the determi nation 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

But the obligation of an unanimous verdict is peculiar to our laws, which condemn the juryman to undergo the torture from whence they have exempted the criminal.

* 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.