Volume 4 Part 7 (1/2)

The personal t.i.tle of the first proprietor must be determined by his death: but the possession, without any appearance of change, is peaceably continued in his children, the a.s.sociates of his toil, and the partners of his wealth. This natural inheritance has been protected by the legislators of every climate and age, and the father is encouraged to persevere in slow and distant improvements, by the tender hope, that a long posterity will enjoy the fruits of his labor. The _principle_ of hereditary succession is universal; but the _order_ has been variously established by convenience or caprice, by the spirit of national inst.i.tutions, or by some partial example which was originally decided by fraud or violence. The jurisprudence of the Romans appear to have deviated from the inequality of nature much less than the Jewish, the Athenian, or the English inst.i.tutions. On the death of a citizen, all his descendants, unless they were already freed from his paternal power, were called to the inheritance of his possessions. The insolent prerogative of primogeniture was unknown; the two s.e.xes were placed on a just level; all the sons and daughters were ent.i.tled to an equal portion of the patrimonial estate; and if any of the sons had been intercepted by a premature death, his person was represented, and his share was divided, by his surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The degrees of kindred are numbered by the civilians, ascending from the last possessor to a common parent, and descending from the common parent to the next heir: my father stands in the first degree, my brother in the second, his children in the third, and the remainder of the series may be conceived by a fancy, or pictured in a genealogical table. In this computation, a distinction was made, essential to the laws and even the const.i.tution of Rome; the _agnats_, or persons connected by a line of males, were called, as they stood in the nearest degree, to an equal part.i.tion; but a female was incapable of transmitting any legal claims; and the _cognats_ of every rank, without excepting the dear relation of a mother and a son, were disinherited by the Twelve Tables, as strangers and aliens. Among the Romans _agens_ or lineage was united by a common _name_ and domestic rites; the various _cognomens_ or _surnames_ of Scipio, or Marcellus, distinguished from each other the subordinate branches or families of the Cornelian or Claudian race: the default of the _agnats_, of the same surname, was supplied by the larger denomination of _gentiles_; and the vigilance of the laws maintained, in the same name, the perpetual descent of religion and property. A similar principle dictated the Voconian law, which abolished the right of female inheritance. As long as virgins were given or sold in marriage, the adoption of the wife extinguished the hopes of the daughter. But the equal succession of independent matrons supported their pride and luxury, and might transport into a foreign house the riches of their fathers. While the maxims of Cato were revered, they tended to perpetuate in each family a just and virtuous mediocrity: till female blandishments insensibly triumphed; and every salutary restraint was lost in the dissolute greatness of the republic. The rigor of the decemvirs was tempered by the equity of the praetors. Their edicts restored and emanc.i.p.ated posthumous children to the rights of nature; and upon the failure of the _agnats_, they preferred the blood of the _cognats_ to the name of the gentiles whose t.i.tle and character were insensibly covered with oblivion. The reciprocal inheritance of mothers and sons was established in the Tertullian and Orphitian decrees by the humanity of the senate. A new and more impartial order was introduced by the Novels of Justinian, who affected to revive the jurisprudence of the Twelve Tables. The lines of masculine and female kindred were confounded: the descending, ascending, and collateral series was accurately defined; and each degree, according tot he proximity of blood and affection, succeeded to the vacant possessions of a Roman citizen.

The order of succession is regulated by nature, or at least by the general and permanent reason of the lawgiver: but this order is frequently violated by the arbitrary and partial _wills_, which prolong the dominion of the testator beyond the grave. In the simple state of society, this last use or abuse of the right of property is seldom indulged: it was introduced at Athens by the laws of Solon; and the private testaments of the father of a family are authorized by the Twelve Tables. Before the time of the decemvirs, a Roman citizen exposed his wishes and motives to the a.s.sembly of the thirty curiae or parishes, and the general law of inheritance was suspended by an occasional act of the legislature. After the permission of the decemvirs, each private lawgiver promulgated his verbal or written testament in the presence of five citizens, who represented the five cla.s.ses of the Roman people; a sixth witness attested their concurrence; a seventh weighed the copper money, which was paid by an imaginary purchaser; and the estate was emanc.i.p.ated by a fict.i.tious sale and immediate release. This singular ceremony, which excited the wonder of the Greeks, was still practised in the age of Severus; but the praetors had already approved a more simple testament, for which they required the seals and signatures of seven witnesses, free from all legal exception, and purposely summoned for the execution of that important act. A domestic monarch, who reigned over the lives and fortunes of his children, might distribute their respective shares according to the degrees of their merit or his affection; his arbitrary displeasure chastised an unworthy son by the loss of his inheritance, and the mortifying preference of a stranger.

But the experience of unnatural parents recommended some limitations of their testamentary powers. A son, or, by the laws of Justinian, even a daughter, could no longer be disinherited by their silence: they were compelled to name the criminal, and to specify the offence; and the justice of the emperor enumerated the sole causes that could justify such a violation of the first principles of nature and society. Unless a legitimate portion, a fourth part, had been reserved for the children, they were ent.i.tled to inst.i.tute an action or complaint of _inofficious_ testament; to suppose that their father's understanding was impaired by sickness or age; and respectfully to appeal from his rigorous sentence to the deliberate wisdom of the magistrate. In the Roman jurisprudence, an essential distinction was admitted between the inheritance and the legacies. The heirs who succeeded to the entire unity, or to any of the twelve fractions of the substance of the testator, represented his civil and religious character, a.s.serted his rights, fulfilled his obligations, and discharged the gifts of friends.h.i.+p or liberality, which his last will had bequeathed under the name of legacies. But as the imprudence or prodigality of a dying man might exhaust the inheritance, and leave only risk and labor to his successor, he was empowered to retain the _Falcidian_ portion; to deduct, before the payment of the legacies, a clear fourth for his own emolument. A reasonable time was allowed to examine the proportion between the debts and the estate, to decide whether he should accept or refuse the testament; and if he used the benefit of an inventory, the demands of the creditors could not exceed the valuation of the effects. The last will of a citizen might be altered during his life, or rescinded after his death: the persons whom he named might die before him, or reject the inheritance, or be exposed to some legal disqualification. In the contemplation of these events, he was permitted to subst.i.tute second and third heirs, to replace each other according to the order of the testament; and the incapacity of a madman or an infant to bequeath his property might be supplied by a similar subst.i.tution. But the power of the testator expired with the acceptance of the testament: each Roman of mature age and discretion acquired the absolute dominion of his inheritance, and the simplicity of the civil law was never clouded by the long and intricate entails which confine the happiness and freedom of unborn generations.

Conquest and the formalities of law established the use of _codicils_.

If a Roman was surprised by death in a remote province of the empire, he addressed a short epistle to his legitimate or testamentary heir; who fulfilled with honor, or neglected with impunity, this last request, which the judges before the age of Augustus were not authorized to enforce. A codicil might be expressed in any mode, or in any language; but the subscription of five witnesses must declare that it was the genuine composition of the author. His intention, however laudable, was sometimes illegal; and the invention of _fidei-commissa_, or trusts, arose form the struggle between natural justice and positive jurisprudence. A stranger of Greece or Africa might be the friend or benefactor of a childless Roman, but none, except a fellow-citizen, could act as his heir. The Voconian law, which abolished female succession, restrained the legacy or inheritance of a woman to the sum of one hundred thousand sesterces; and an only daughter was condemned almost as an alien in her father's house. The zeal of friends.h.i.+p, and parental affection, suggested a liberal artifice: a qualified citizen was named in the testament, with a prayer or injunction that he would restore the inheritance to the person for whom it was truly intended.

Various was the conduct of the trustees in this painful situation: they had sworn to observe the laws of their country, but honor prompted them to violate their oath; and if they preferred their interest under the mask of patriotism, they forfeited the esteem of every virtuous mind.

The declaration of Augustus relieved their doubts, gave a legal sanction to confidential testaments and codicils, and gently unravelled the forms and restraints of the republican jurisprudence. But as the new practice of trusts degenerated into some abuse, the trustee was enabled, by the Trebellian and Pegasian decrees, to reserve one fourth of the estate, or to transfer on the head of the real heir all the debts and actions of the succession. The interpretation of testaments was strict and literal; but the language of _trusts_ and codicils was delivered from the minute and technical accuracy of the civilians.

III. The general duties of mankind are imposed by their public and private relations: but their specific _obligations_ to each other can only be the effect of, 1. a promise, 2. a benefit, or 3. an injury: and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle, the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice.

Chapter XLIV: Idea Of The Roman Jurisprudence.--Part VII.

1. The G.o.ddess of _faith_ (of human and social faith) was wors.h.i.+pped, not only in her temples, but in the lives of the Romans; and if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burdensome engagements. Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a _naked pact_, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a _stipulation_. Whatever might be the etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract, which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? was the solemn interrogation of Seius. I do promise, was the reply of Semp.r.o.nius. The friends of Semp.r.o.nius, who answered for his ability and inclination, might be separately sued at the option of Seius; and the benefit of part.i.tion, or order of reciprocal actions, insensibly deviated from the strict theory of stipulation. The most cautious and deliberate consent was justly required to sustain the validity of a gratuitous promise; and the citizen who might have obtained a legal security, incurred the suspicion of fraud, and paid the forfeit of his neglect. But the ingenuity of the civilians successfully labored to convert simple engagements into the form of solemn stipulations. The praetors, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy.

2. The obligations of the second cla.s.s, as they were contracted by the delivery of a thing, are marked by the civilians with the epithet of real. A grateful return is due to the author of a benefit; and whoever is intrusted with the property of another, has bound himself to the sacred duty of rest.i.tution. In the case of a friendly loan, the merit of generosity is on the side of the lender only; in a deposit, on the side of the receiver; but in a _pledge_, and the rest of the selfish commerce of ordinary life, the benefit is compensated by an equivalent, and the obligation to restore is variously modified by the nature of the transaction. The Latin language very happily expresses the fundamental difference between the _commodatum_ and the _mutuum_, which our poverty is reduced to confound under the vague and common appellation of a loan.

In the former, the borrower was obliged to restore the same individual thing with which he had been _accommodated_ for the temporary supply of his wants; in the latter, it was destined for his use and consumption, and he discharged this _mutual_ engagement, by subst.i.tuting the same specific value according to a just estimation of number, of weight, and of measure. In the contract of _sale_, the absolute dominion is transferred to the purchaser, and he repays the benefit with an adequate sum of gold or silver, the price and universal standard of all earthly possessions. The obligation of another contract, that of _location_, is of a more complicated kind. Lands or houses, labor or talents, may be hired for a definite term; at the expiration of the time, the thing itself must be restored to the owner, with an additional reward for the beneficial occupation and employment. In these lucrative contracts, to which may be added those of partners.h.i.+p and commissions, the civilians sometimes imagine the delivery of the object, and sometimes presume the consent of the parties. The substantial pledge has been refined into the invisible rights of a mortgage or _hypotheca_; and the agreement of sale, for a certain price, imputes, from that moment, the chances of gain or loss to the account of the purchaser. It may be fairly supposed, that every man will obey the dictates of his interest; and if he accepts the benefit, he is obliged to sustain the expense, of the transaction.

In this boundless subject, the historian will observe the _location_ of land and money, the rent of the one and the interest of the other, as they materially affect the prosperity of agriculture and commerce.

The landlord was often obliged to advance the stock and instruments of husbandry, and to content himself with a part.i.tion of the fruits. If the feeble tenant was oppressed by accident, contagion, or hostile violence, he claimed a proportionable relief from the equity of the laws: five years were the customary term, and no solid or costly improvements could be expected from a farmer, who, at each moment might be ejected by the sale of the estate. Usury, the inveterate grievance of the city, had been discouraged by the Twelve Tables, and abolished by the clamors of the people. It was revived by their wants and idleness, tolerated by the discretion of the praetors, and finally determined by the Code of Justinian. Persons of ill.u.s.trious rank were confined to the moderate profit of _four per cent_.; six was p.r.o.nounced to be the ordinary and legal standard of interest; eight was allowed for the convenience of manufactures and merchants; twelve was granted to nautical insurance, which the wiser ancients had not attempted to define; but, except in this perilous adventure, the practice of exorbitant usury was severely restrained. The most simple interest was condemned by the clergy of the East and West; but the sense of mutual benefit, which had triumphed over the law of the republic, has resisted with equal firmness the decrees of the church, and even the prejudices of mankind.

3. Nature and society impose the strict obligation of repairing an injury; and the sufferer by private injustice acquires a personal right and a legitimate action. If the property of another be intrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such temporary possession; we are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author. A Roman pursued and recovered his stolen goods by a civil action of theft; they might pa.s.s through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim.

They were restored by the sentence of the praetor, and the injury was compensated by double, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact, or detected by a subsequent research.

The Aquilian law defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence: the highest price was allowed that could be ascribed to the domestic animal at any moment of the year preceding his death; a similar lat.i.tude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual: the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the decemvirs had confounded all hasty insults, which did not amount to the fracture of a limb, by condemning the aggressor to the common penalty of twenty-five _a.s.ses_. But the same denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce: and the insolence of a wealthy Roman indulged himself in the cheap amus.e.m.e.nt of breaking and satisfying the law of the twelve tables. Veratius ran through the streets striking on the face the inoffensive pa.s.sengers, and his attendant purse-bearer immediately silenced their clamors by the legal tender of twenty-five pieces of copper, about the value of one s.h.i.+lling. The equity of the praetors examined and estimated the distinct merits of each particular complaint.

In the adjudication of civil damages, the magistrate a.s.sumed a right to consider the various circ.u.mstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person; but if he admitted the idea of a fine, a punishment, an example, he invaded the province, though, perhaps, he supplied the defects, of the criminal law.

The execution of the Alban dictator, who was dismembered by eight horses, is represented by Livy as the first and the fast instance of Roman cruelty in the punishment of the most atrocious crimes. But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The twelve tables afford a more decisive proof of the national spirit, since they were framed by the wisest of the senate, and accepted by the free voices of the people; yet these laws, like the statutes of Draco, are written in characters of blood. They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastis.e.m.e.nts of flagellation and servitude; and nine crimes of a very different complexion are adjudged worthy of death. _1._ Any act of _treason_ against the state, or of correspondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and after he had been scourged by the lictor, he was suspended in the midst of the forum on a cross, or inauspicious tree. _2._ Nocturnal meetings in the city; whatever might be the pretence, of pleasure, or religion, or the public good. _3._ The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic, and the chaste virtues of the Roman matrons.

The parricide, who violated the duties of nature and grat.i.tude, was cast into the river or the sea, enclosed in a sack; and a c.o.c.k, a viper, a dog, and a monkey, were successively added, as the most suitable companions. Italy produces no monkeys; but the want could never be felt, till the middle of the sixth century first revealed the guilt of a parricide. _4._The malice of an _incendiary_. After the previous ceremony of whipping, he himself was delivered to the flames; and in this example alone our reason is tempted to applaud the justice of retaliation. _5._ _Judicial perjury_. The corrupt or malicious witness was thrown headlong from the Tarpeian rock, to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws, and the deficiency of written evidence. _6._ The corruption of a judge, who accepted bribes to p.r.o.nounce an iniquitous sentence. _7._ Libels and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastis.e.m.e.nt, but it is not certain that he was left to expire under the blows of the executioner. _8._ The nocturnal mischief of damaging or destroying a neighbor's corn. The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twenty-five pounds of copper. _9._ Magical incantations; which had power, in the opinion of the Latin shepherds, to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deep-rooted plantations. The cruelty of the twelve tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism. After the judicial proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow-citizen. In this private prison, twelve ounces of rice were his daily food; he might be bound with a chain of fifteen pounds weight; and his misery was thrice exposed in the market place, to solicit the compa.s.sion of his friends and countrymen. At the expiration of sixty days, the debt was discharged by the loss of liberty or life; the insolvent debtor was either put to death, or sold in foreign slavery beyond the Tyber: but, if several creditors were alike obstinate and unrelenting, they might legally dismember his body, and satiate their revenge by this horrid part.i.tion. The advocates for this savage law have insisted, that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge; but experience would dissipate this salutary terror, by proving that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the decemvirs was abolished by the humanity of accusers, witnesses, and judges; and impunity became the consequence of immoderate rigor. The Porcian and Valerian laws prohibited the magistrates from inflicting on a free citizen any capital, or even corporal, punishment; and the obsolete statutes of blood were artfully, and perhaps truly, ascribed to the spirit, not of patrician, but of regal, tyranny.

In the absence of penal laws, and the insufficiency of civil actions, the peace and justice of the city were imperfectly maintained by the private jurisdiction of the citizens. The malefactors who replenish our jails are the outcasts of society, and the crimes for which they suffer may be commonly ascribed to ignorance, poverty, and brutal appet.i.te. For the perpetration of similar enormities, a vile plebeian might claim and abuse the sacred character of a member of the republic: but, on the proof or suspicion of guilt, the slave, or the stranger, was nailed to a cross; and this strict and summary justice might be exercised without restraint over the greatest part of the populace of Rome. Each family contained a domestic tribunal, which was not confined, like that of the praetor, to the cognizance of external actions: virtuous principles and habits were inculcated by the discipline of education; and the Roman father was accountable to the state for the manners of his children, since he disposed, without appeal, of their life, their liberty, and their inheritance. In some pressing emergencies, the citizen was authorized to avenge his private or public wrongs. The consent of the Jewish, the Athenian, and the Roman laws approved the slaughter of the nocturnal thief; though in open daylight a robber could not be slain without some previous evidence of danger and complaint. Whoever surprised an adulterer in his nuptial bed might freely exercise his revenge; the most b.l.o.o.d.y and wanton outrage was excused by the provocation; nor was it before the reign of Augustus that the husband was reduced to weigh the rank of the offender, or that the parent was condemned to sacrifice his daughter with her guilty seducer. After the expulsion of the kings, the ambitious Roman, who should dare to a.s.sume their t.i.tle or imitate their tyranny, was devoted to the infernal G.o.ds: each of his fellow-citizens was armed with the sword of justice; and the act of Brutus, however repugnant to grat.i.tude or prudence, had been already sanctified by the judgment of his country. The barbarous practice of wearing arms in the midst of peace, and the b.l.o.o.d.y maxims of honor, were unknown to the Romans; and, during the two purest ages, from the establishment of equal freedom to the end of the Punic wars, the city was never disturbed by sedition, and rarely polluted with atrocious crimes. The failure of penal laws was more sensibly felt, when every vice was inflamed by faction at home and dominion abroad. In the time of Cicero, each private citizen enjoyed the privilege of anarchy; each minister of the republic was exalted to the temptations of regal power, and their virtues are ent.i.tled to the warmest praise, as the spontaneous fruits of nature or philosophy. After a triennial indulgence of l.u.s.t, rapine, and cruelty, Verres, the tyrant of Sicily, could only be sued for the pecuniary rest.i.tution of three hundred thousand pounds sterling; and such was the temper of the laws, the judges, and perhaps the accuser himself, that, on refunding a thirteenth part of his plunder, Verres could retire to an easy and luxurious exile.

The first imperfect attempt to restore the proportion of crimes and punishments was made by the dictator Sylla, who, in the midst of his sanguinary triumph, aspired to restrain the license, rather than to oppress the liberty, of the Romans. He gloried in the arbitrary proscription of four thousand seven hundred citizens. But, in the character of a legislator, he respected the prejudices of the times; and, instead of p.r.o.nouncing a sentence of death against the robber or a.s.sa.s.sin, the general who betrayed an army, or the magistrate who ruined a province, Sylla was content to aggravate the pecuniary damages by the penalty of exile, or, in more const.i.tutional language, by the interdiction of fire and water. The Cornelian, and afterwards the Pompeian and Julian, laws introduced a new system of criminal jurisprudence; and the emperors, from Augustus to Justinian, disguised their increasing rigor under the names of the original authors. But the invention and frequent use of _extraordinary pains_ proceeded from the desire to extend and conceal the progress of despotism. In the condemnation of ill.u.s.trious Romans, the senate was always prepared to confound, at the will of their masters, the judicial and legislative powers. It was the duty of the governors to maintain the peace of their province, by the arbitrary and rigid administration of justice; the freedom of the city evaporated in the extent of empire, and the Spanish malefactor, who claimed the privilege of a Roman, was elevated by the command of Galba on a fairer and more lofty cross. Occasional rescripts issued from the throne to decide the questions which, by their novelty or importance, appeared to surpa.s.s the authority and discernment of a proconsul. Transportation and beheading were reserved for honorable persons; meaner criminals were either hanged, or burnt, or buried in the mines, or exposed to the wild beasts of the amphitheatre. Armed robbers were pursued and extirpated as the enemies of society; the driving away horses or cattle was made a capital offence; but simple theft was uniformly considered as a mere civil and private injury. The degrees of guilt, and the modes of punishment, were too often determined by the discretion of the rulers, and the subject was left in ignorance of the legal danger which he might incur by every action of his life.

A sin, a vice, a crime, are the objects of theology, ethics, and jurisprudence. Whenever their judgments agree, they corroborate each other; but, as often as they differ, a prudent legislator appreciates the guilt and punishment according to the measure of social injury. On this principle, the most daring attack on the life and property of a private citizen is judged less atrocious than the crime of treason or rebellion, which invades the _majesty_ of the republic: the obsequious civilians unanimously p.r.o.nounced, that the republic is contained in the person of its chief; and the edge of the Julian law was sharpened by the incessant diligence of the emperors. The licentious commerce of the s.e.xes may be tolerated as an impulse of nature, or forbidden as a source of disorder and corruption; but the fame, the fortunes, the family of the husband, are seriously injured by the adultery of the wife. The wisdom of Augustus, after curbing the freedom of revenge, applied to this domestic offence the animadversion of the laws: and the guilty parties, after the payment of heavy forfeitures and fines, were condemned to long or perpetual exile in two separate islands. Religion p.r.o.nounces an equal censure against the infidelity of the husband; but, as it is not accompanied by the same civil effects, the wife was never permitted to vindicate her wrongs; and the distinction of simple or double adultery, so familiar and so important in the canon law, is unknown to the jurisprudence of the Code and the Pandects. I touch with reluctance, and despatch with impatience, a more odious vice, of which modesty rejects the name, and nature abominates the idea. The primitive Romans were infected by the example of the Etruscans and Greeks: and in the mad abuse of prosperity and power, every pleasure that is innocent was deemed insipid; and the Scatinian law, which had been extorted by an act of violence, was insensibly abolished by the lapse of time and the mult.i.tude of criminals. By this law, the rape, perhaps the seduction, of an ingenuous youth, was compensated, as a personal injury, by the poor damages of ten thousand sesterces, or fourscore pounds; the ravisher might be slain by the resistance or revenge of chast.i.ty; and I wish to believe, that at Rome, as in Athens, the voluntary and effeminate deserter of his s.e.x was degraded from the honors and the rights of a citizen. But the practice of vice was not discouraged by the severity of opinion: the indelible stain of manhood was confounded with the more venial transgressions of fornication and adultery, nor was the licentious lover exposed to the same dishonor which he impressed on the male or female partner of his guilt. From Catullus to Juvenal, the poets accuse and celebrate the degeneracy of the times; and the reformation of manners was feebly attempted by the reason and authority of the civilians till the most virtuous of the Caesars proscribed the sin against nature as a crime against society.