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and slaves, could not bear evidence, or any person who had a strong
enmity against the party. The witnesses were required to give their
testimony on oath. Two witnesses were enough to prove a fact, in most
instances. When witnesses gave conflicting testimony, the judge regarded
those who were worthy of credit rather than numbers. In the English
courts, the custom used to be as with the Romans, of refusing testimony
from those who were interested, but this has been removed. On the
failure of regular proof, the Roman law allowed a party to refer the
facts in a civil action to the oath of his adversary.

[Sidenote: Condition of debtors.]

Under the empire every judgment was reduced to writing and signed by the
judge, and then entered upon a register. [Footnote: C. vii. 45, 12.]
After the sentence, the debtor was allowed thirty days for the payment
of his debt, after which he was assigned over to the creditor and kept
in chains for sixty days, during which he was publicly exposed for three
market days, and if no one released him by paying the debt, he could be
sold as a slave. Justinian extended the period to four months for the
payment of a judgment debt, after which, if the debt was not paid, the
debtor could be imprisoned, but not, as formerly, in the creditor's
house. At first the goods of the debtor were sold in favor of any one
who offered to pay the largest dividend, but in process of time, the
goods of the debtor were sold in detail, and all creditors were paid a
ratable dividend. In no respect are modern codes superior to the Roman,
so much as in reference to imprisonment for debt. In the United States
it has practically ceased, and in England no one can be imprisoned for a
debt under 20 pounds, and in France under 8 pounds.

[Sidenote: Appeal.]

Under the Roman republic, there was no appeal in civil suits, but under
the emperors a regular system was established. Under Augustus, there was
an appeal from all the magistrates to the prefect of the city, and from
him to the Praetorian prefect or emperor. In the provinces there was an
appeal from the municipal magistrates to the governors, and from them to
the emperor. Under Justinian, no appeal was allowed from a suit which
did not involve at least twenty pounds in gold.

[Sidenote: Criminal courts.]

In regard to criminal courts, among the Romans, during the republic, the
only body which had absolute power of life and death was the _comitia
centuriata_. The Senate had no jurisdiction in criminal cases, so far
as Roman citizens were concerned. It was only in extraordinary
emergencies that the Senate, with the consuls, assumed the
responsibility of inflicting summary punishment. Under the emperors, the
Senate was armed with the power of criminal jurisdiction. And as the
Senate was the tool of the imperator, he could crush whomsoever he

As it was inconvenient, when Rome had become a very great city, to
convene the comitia for the trial of offenders, the expedient was
adopted of delegating the jurisdiction of the people to persons invested
with temporary authority, called _quaesitores_. These were
established at length into regular and permanent courts, called
_quaestiones perpetuae_. Every case submitted to these courts was
tried by a judge and jury. It was the duty of the judge to preside and
regulate proceedings according to law; and it was the duty of the jury,
after hearing the evidence and pleadings, to decide upon the guilt or
innocence of the accused. As many as fifty persons frequently composed
the jury, whose names were drawn out of an urn. Each party had a right
to challenge a certain number, and the verdict was decided by a majority
of votes. At first the judices were chosen from the Senate, and
afterwards from the Equestrians, and then again from both orders. But in
process of time the _quaestiones perpetuae_ gave place to imperial
magistrates. The accused defended himself in person or by counsel.

[Sidenote: Crimes.]

The Romans divided _crimes_ into public and private. Private crimes
could only be prosecuted by the party injured, and were generally
punished by pecuniary fines, as among the old Germanic nations.

[Sidenote: Treason.]

Of public crimes, the _crimen loesoe majestatis_, or treason, was
regarded as the greatest, and this was punished with death, and with
confiscation of goods, [Footnote: I. 4, 18, 3.] 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, [Footnote: C. 9, 8, 6.] that
his memory might become infamous, and this barbarous practice existed
even in France and Scotland, as late as the beginning of the seventeenth
century. In England, men have been executed for treasonable words.
Beside 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 offenses were punished by pecuniary penalties.

[Sidenote: Capital punishments.]

[Sidenote: Criminal law gradually ameliorated.]

But there were also crimes against individuals which were punished with
the death penalty. Willful murder, poisoning, parricide, were capitally
punished. Adultery was punished by banishment, beside a forfeiture of
considerable property. [Footnote: D, 48, 5.] Constantine made it a
capital offense. The Romans made adultery to consist in sexual
intercourse with another man's wife, but not with a woman who was not
married, even if he were married. Rape was punished with death
[Footnote: C. 9, 13.] 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, which never attained the
perfection that was seen in the Civil Code. It was in this that the full
maturity of wisdom was seen. The emperors greatly increased the severity
of punishments, as 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 regime to our times in the
United States. Capital punishment for several centuries was exceedingly
rare, and this was prevented by voluntary exile. Under the empire,
public executions were frequent and revolting.

[Sidenote: Fines.]

[Sidenote: Exile.]

Fines were a common mode of punishment with the Romans, as with the
early Germans. Imprisonment in a public jail was also 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
offenses, 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 a compulsory residence in a
particular place assigned. Thus Chrysostom was sent to a dreary place on
the banks of the Euxine. 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 offense was associated with
treason. Persons of distinction were treated with more favor than the
lower classes, and the punishment was 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 emperors until a recent date. Since the
French Revolution, the severity of the penal codes has been much

[Sidenote: Excellence of laws pertaining to property.]

[Sidenote: Rights of citizens.]

The penal statutes of Rome, 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 would 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 prove that the Romans, in their civil and social
relations, were very much on a level with modern times. And it would be
difficult to find, in the most enlightened of modern codes, greater
wisdom and foresight than what 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. What 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! How clear 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!
How wise the regulations in reference to intestate succession, and to
the division of property among males and females. We find no laws of
entail, no unequal rights, no absurd distinctions between brothers, no
peculiar privileges given to males over females, or to older sons. In
the Institutes of Justinian, we see on every page a regard to the
principles of natural justice. We discover that the property of the wife
cannot be alienated nor mortgaged by a prodigal husband; that wards are
to be protected from the cupidity of guardians; that property could be
bequeathed by will, and that wills are sacred; that all promises are to
be fulfilled; that he who is intrusted with the property of another is
bound to restitution by the most imperative obligations; that usury
should be restrained; that all injuries should be repaired; that cattle
and slaves should be protected from malice and negligence; that
atrocious cruelties in punishment should not be inflicted; 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. In short, every thing
pertaining to property and contracts and wills is guarded with the most
zealous care. A man was sure of possessing his own, and of transmitting
it to his children. 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. And this security to property and
life and personal rights was guaranteed by the greatest tyrants. 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 the depravity of men, the venality
of the rich, and the tricks of lawyers. But the laws were wise and
equal. The civil jurisprudence could be copied with safety by the most
enlightened of European states. And, indeed, it is the foundation of
their civil codes, especially in France and Germany.

[Sidenote: Abuse of paternal power.]

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 _paterfamilias_ was necessarily a tyrant. It was
unjust that the father should control the property of his son, and cruel
that he was allowed such absolute control, not only over his children,
but his wife. But the limits of paternal power were more and more
curtailed, so that under the latter emperors, fathers were not allowed
to have more authority than was perhaps expedient.

[Sidenote: Evils of slavery.]

The recognition of slavery as a domestic institution was another blot,
and slaves could be treated with the grossest cruelty and injustice
without 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 which was the greatest evil, but the
facility by which slaves could be made. The laws pertaining to debt were
severe, and it was most disgraceful to doom a debtor to the absolute
power of a creditor. To subject men of the same blood 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 what was common in England 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 future ages may see too
great leniency shown to debtors, who are not merely unfortunate but
dishonest, in these our times; and 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

[Sidenote: Evils of divorce.]

The facility of divorce was another stigma on the Roman laws, and the
degradation of woman was the principal consequence. But woman never was
honored in any pagan land. Her condition at Rome was better than it was
at Athens. She always was regarded as a possession rather than as a free
person. Her virtue was mistrusted, and her aspirations were scorned. She
was hampered and guarded more like a slave than the equal companion of
man. But the whole progress of legislation was in her favor, and she
continued to gain new privileges to the fall of the empire.

[Sidenote: Severity of penal law.]

[Sidenote: Certainty of punishment.]

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 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 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
society becomes impossible when there is no efficient protection to
property. If sheep can be killed by dogs, if orchards can be stripped of
their fruit, and jewelry be appropriated by servants with impunity, a
great stimulus to honest industry is taken away, and men will be forced
to seek more distant homes where they can reap the fruits of toil, or
will give up in despair. 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 traveler in France and
England feels that in regard to the punishment of crime, those old
countries, restricted as are political privileges, are vastly superior
to our own. The Romans lost, under the emperors, their political rights;
but they gained protection and safety in their relations with society.
And where quiet and industrious citizens feel safe in their homes, and
are protected in their dealings from scoundrels, and 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, great and glorious as is this
privilege. The arbitrary rule of the emperors was fatal to political
aspirations and rights, but the evils of political slavery were
qualified and set off by the excellence of the civil code, and the
privileges of social freedom.

[Sidenote: Intricacy and uncertainty of the law.]

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 only be employed by the rich, and even judges were venal.
So that the poor did not easily find adequate redress, and the good
became an evil. But all this is the necessary attendant on a factitious
state of society. Material civilization will lead 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 are forced to retreat, as
hermits sought a solitude, when society had reached its lowest
degradation, out of pure despair of its renovation.

* * * * *

The authorities for this chapter are very numerous. Since the Institutes
of Gaius have been recovered, very many eminent writers on Roman law
have appeared, especially in Germany and France. Among those who could
be cited, are Beaufort, Histoire de la Republique Romaine; Colquhoun,
Summary of the Roman Civil Law; De Fresquet, Traite Elementaire de Droit
Romain; Ducaurroy (A. M. Professor of Roman Law at Paris), Les
Institutes de Justinien nouvellement expliquees; Gneist (Dr. Reed),
Institutionum et Regularum Juris Romani; Halifax (Dr. Samuel), Analysis
of the Roman Civil Law; Heineccius (Jo. Gott.), Elementa Juris Civilis
Secundum Ordinem Institutionum; Laboulaye, Essai sur les Lois
Criminelles des Remains; Long's Articles on Roman Law in Dr. Smith's
Dictionary; Maine's Ancient Law; Gaius, Institutionum Commentarii
Quatuor; Marezole (Theodore, Professor at Leipsic), Lebruch der
Institutionem des Romischen Rechts; Maynz (Charles, Professor of Law at
Brussels), Elements du Droit Romain; Ortolan (M., Professor at Paris),
Explication Historique des Institutes de l'Empereur Justinien;
Phillimore, Introduction to the Study and History of Roman Law; Pothier,
Pandectae Justinianae in Novum Ordinem Digestae; Savigny, Geschichte des
Rom. Rechts; Walter, Histoire de la Procedure Civile Chez Romains.

I have found the late work of Lord Mackenzie, on Roman Law, together
with the articles of George Long, in Smith's Dictionary, the most useful
in compiling this notice of Roman jurisprudence. Mr. Maine's Treatise on
Roman 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

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; Irving,
Introduction to the Study of the Civil Law; Lindley, Introduction to the
Study of Jurisprudence; and Wheaton's Elements of International Law;
Vattel, Le Droit des Gens.



If the ancient civilization rivaled the modern in the realm of
_art_, it was equally remarkable in the field of letters. It is not
my object to show that it was equal, or superior, or inferior to modern
literature, either in original genius or artistic excellence. That point
would be difficult to settle, and unprofitable to discuss. There is no
doubt as to the superior advantage which the modern world derives in
consequence of the invention of printing, and the consequent diffusion
of knowledge. But the question is in reference to the height which was
attained by the ancient pagan intellect, unaided by Christianity. I
simply wish to show that the ancients were distinguished in all
departments of literature, and that some of the masterpieces of genius
were created by them.

Nor is it my object to write a summary of the literature of antiquity.
It would be as dull as a catalogue, or a dictionary, or a compendium of
universal history for the use of schools in a single volume. And it
would be as profitless. My aim is simply to show that the old
civilization can boast of its glories in literature, as well as in art,
and that the mind of man never more nobly asserted its power than in
Greece and Rome. Our present civilization delights in those
philosophers, poets, and historians, who caught their inspiration from
the great pagan models which have survived the wreck of material
greatness. The human intellect achieved some of its greatest feats
before Christianity was born. The inborn dignity of the mind and soul
was never more nobly asserted than by Plato and Aristotle, by Thucydides
and Tacitus, by Homer and Virgil, by Demosthenes and Cicero. In
attestation, therefore, of the glory of the ancient civilization, in the
realm of literature, it is quite sufficient for our purpose to point out
some of those great lights which, after the lapse of two thousand years
or more, still continue to shine, and which are objects of hopeless
imitation, even as they are of universal admiration. If we can show that
the great heights were reached, even by a few, we prove the extent of
civilization. If genius can soar, under Pagan, as well as under
Christian influences, it would appear that civilization, in an
intellectual point of view, may be the work of man, unaided by
inspiration. It is the triumph of the native intellect of man which I
wish to show.

[Sidenote: Romans borrow from the Greeks.]

Online LibraryJohn LordThe Old Roman World, : the Grandeur and Failure of Its Civilization → online text (page 21 of 50)