In all cases brought before the courts, the burden of proof was with the party a.s.serting an affirmative fact. Proof by writing was generally considered most certain, but proof by witnesses was also admitted.

Pupils, lunatics, infamous persons, interested parties, near relations, 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 a.s.signed 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 munic.i.p.al 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, a.s.sumed 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 pleased.

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, a.s.sisting 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 s.e.xual 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 trespa.s.ses, 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, pa.s.sed 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 a.s.signed. 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 a.s.sociated with treason. Persons of distinction were treated with more favor than the lower cla.s.ses, 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 modified.

[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 bra.s.s, 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 antic.i.p.ated 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 Inst.i.tutes 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 rest.i.tution 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 chastis.e.m.e.nt; 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 trespa.s.s on the rights of another; to seek his pleasure un.o.bstructed, and pursue his business without vexatious inc.u.mbrances. 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 inst.i.tution 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 courses.

[Sidenote: Evils of divorce.]

The facility of divorce was another stigma on the Roman laws, and the degradation of woman was the princ.i.p.al 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 cla.s.s 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 fact.i.tious state of society. Material civilization will lead to an undue estimate of money. And when money purchases all that artificial people desire, then all cla.s.ses will prost.i.tute 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 Inst.i.tutes 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 Inst.i.tutes de Justinien nouvellement expliquees; Gneist (Dr. Reed), Inst.i.tutionum et Regularum Juris Romani; Halifax (Dr. Samuel), a.n.a.lysis of the Roman Civil Law; Heineccius (Jo. Gott.), Elementa Juris Civilis Secundum Ordinem Inst.i.tutionum; Laboulaye, Essai sur les Lois Criminelles des Remains; Long's Articles on Roman Law in Dr. Smith's Dictionary; Maine's Ancient Law; Gaius, Inst.i.tutionum Commentarii Quatuor; Marezole (Theodore, Professor at Leipsic), Lebruch der Inst.i.tutionem des Romischen Rechts; Maynz (Charles, Professor of Law at Brussels), Elements du Droit Romain; Ortolan (M., Professor at Paris), Explication Historique des Inst.i.tutes 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 Inst.i.tutes of Justinian, which is quite accessible, by Dr. Harris of Oxford. The Code, Pandects, Inst.i.tutes, and Novels, are, of course, the original authority, with the long-lost Inst.i.tutes 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; 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.

CHAPTER VII.

ROMAN LITERATURE.

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 n.o.bly a.s.serted 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 n.o.bly a.s.serted 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.]

Although it is my chief aim to present the magnificent civilization of the Roman empire under the emperors, I must cite the examples of Grecian as well as Roman genius, since Greece became a part of that grand empire, and since Grecian and Roman culture is mixed up and blended together. Roman youth were trained in the Grecian schools. Young men were sent to Athens and Rhodes after they had finished their education in the capital. Athens continued to be, for several hundred years after her political glory had pa.s.sed away, the great university city of the world. Educated Romans were as familiar with the Greek cla.s.sics as they were with those of their own country, and could talk Greek as modern Germans can talk French. The poems which kindled the enthusiasm of Roman youth are as worthy of notice as the statues which the conquerors brought from the Ionian cities, to ornament their palaces and baths.

They equally attest the richness of the old civilization. And as it is the triumph of the pagan intellect which I wish to show, it matters but little whether we draw our ill.u.s.trations from Greece or Rome. Without the aid of Greece, Rome could never have reached the height she attained.