OF THE ROMAN EMPIRE
503
Armed robbers were pursued and extirpated as the enemies of society; the driving away horses or cattle was made a capital offence;[1] 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.
Measure of guilt 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 pronounced 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 sexes 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.[2] Religion pronounces 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;[3] 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 abactores, or abigeatores, who drove one horse, or two mares or oxen, or five hogs, or ten goats, were subject to capital punishment (Paul. Sentent. Recept. l. iv. tit. xviii. p. 497, 498). Hadrian (ad Concil. Bæticæ), most severe where the offence was most frequent, condemns the criminals, ad gladium, ludi damnationem (Ulpian, de Officio Proconsulis, l. viii. in Collatione Legum Mosaic. et Rom. tit. xi. p. 235).
- ↑ Till the publication of the Julius Paulus of Schulting (l. ii. tit. xxvi. p. 317-323), it was affirmed and believed that the Julian laws punished adultery with death; and the mistake arose from the fraud or error of Tribonian. Yet Lipsius had suspected the truth from the narratives of Tacitus (Annal. ii. 50, iii. 24, iv. 42), and even from the practice of Augustus, who distinguished the treasonable frailties of his female kindred.
- ↑ In cases of adultery, Severus confined to the husband the right of public accusation (Cod. Justinian, l. ix. tit. ix. leg. 1). Nor is this privilege unjust — so different are the effects of male or female infidelity.
