The free citizens of Athens and Rome enjoyed in all criminal cases the invaluable privilege of being tried by their country.
Justinian Code Published, featuring a series of excerpts selected from The History of the Decline and Fall of the Roman Empire by Edward Gibbon published in 1788.
Previously in Justinian Code Published. Now we continue.
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 the propriety of the execution, since the criminals would have lost their hands had they 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 pederasty 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 favorable 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.
V. 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 prerogative; 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. Repeated proclamations and adjournments were interposed to allow time for prejudice 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 favorable to guilt. But this union of the judicial and legislative powers left it doubtful whether the accused party was pardoned or acquitted; and in the defense of an illustrious client the orators of Rome and Athens address their arguments 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 offender became more difficult as the citizens and the offenders continually multiplied, and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates or to extraordinary inquisitors. In the first ages these questions were rare and occasional. In the beginning of the seventh century of Rome they were made perpetual: four praetors were annually empowered to sit in judgment on the state offences of treason, extortion, peculation, and bribery; and Sylla added new praetors 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 pronounce the sentence of the majority of judges. To discharge this important though burdensome office, an annual list of ancient and respectable citizens was formed by the praetor. 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 fifteen on each side, were reduced to fifty-one voices or tablets of acquittal, of condemnation, or of favorable doubt.
3. In his civil jurisdiction the praetor of the city was truly a judge, and almost a legislator; but as soon as he had prescribed the action of law he often referred to a delegate the determination 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 to a magistrate who was annually chosen by the votes of the people. The rules and precautions of freedom have required some explanation; the order of despotism is simple and inanimate. Before the age of Justinian, or perhaps of Diocletian, the decuries of Roman judges had sunk to an empty title: the humble advice of the assessors might be accepted or despised, and in each tribunal the civil and criminal jurisdiction was administered by a single magistrate, who was raised and disgraced by the will of the emperor.
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