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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 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 quaestors. These were finally established into regular and permanent courts, called quaestores perpetui. 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 on 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 afterward from the equestrians, and then again from both orders. But in process of time the quaestores perpetui gave place to imperial magistrates. The accused defended himself in person or by counsel.

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

Of public crimes the crimen laesae majestatis, or treason, was regarded as the greatest; and this was punished with death and with confiscation of goods, 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, that his memory might become infamous; and this barbarous practice was perpetuated in France and Scotland as late as the beginning of the seventeenth century. In England men have been executed for treasonable words. Besides 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 offences were punished by pecuniary penalties.

But there were also crimes against individuals, which were punished with the death penalty. Wilful murder, poisoning, and parricide were capitally punished. Adultery was punished by banishment, besides a forfeiture of considerable property; Constantine made it a capital offence. Rape was punished with death 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. This however never attained the perfection that was seen in the Civil Code, in which the full maturity of Roman wisdom was reached. The emperors greatly increased the severity of punishments, as was 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 régime to our own times in the United States. Capital punishment for several centuries was exceedingly rare, and was frequently prevented by voluntary exile. Under the empire, again, public executions were frequent and revolting.

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

The penal statutes of Rome however, 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 should 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 the Romans in their civil and social relations were very much on a level with modern times. It would be difficult to find in the most enlightened of modern codes greater wisdom and foresight than 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. Nothing 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. 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 were singularly clear. The regulations in reference to intestate succession, and to the division of property among males and females, were wise and just; we find no laws of entail, no unequal rights, no absurd distinction between brothers, no peculiar privileges given to males over females, or to older sons. Particularly was everything pertaining to property and contracts and wills guarded with the most jealous care. A man was sure of possessing his own, and of transmitting it to his children. In the Institutes of Justinian we see on every page a regard to the principles of natural justice: but moreover we find 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.

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. This security to property and life and personal rights was guaranteed by the greatest tyrants. Although political liberty was dead, 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 owing to the depravity of men, the venality of the rich, and the tricks of lawyers; the laws were wise and equal. The civil jurisprudence of the Romans could be copied with safety by the most enlightened of European States; indeed, it is already the foundation of their civil codes, especially in France and Germany.

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

The recognition of slavery as a domestic institution was another blot, and slaves could be treated with the grossest cruelty and injustice without possibility of 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, however, which was the greatest evil, but the facility by which slaves could be made. The laws pertaining to debt were severe, and were most disgraceful in dooming a debtor to the absolute power of a creditor. To subject men of the same race 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 was common in England as late as 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 our modern laws may show too great leniency to debtors who are not merely unfortunate, but dishonest. 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.

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 still 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 even 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 general prosperity and contentment become impossible where there is no efficient protection to property. 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 traveller in France and England feels that in regard to the punishment of crime, those older countries, restricted as are their political privileges, are in most questions of secure and comfortable living vastly superior to our own. The Romans lost under the emperors their political rights, but gained protection and safety in their relations with society. Where quiet and industrious citizens feel safe in their homes, are protected from scoundrels in their dealings, 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, lofty and glorious as is this privilege. The arbitrary rule of the emperors was fatal to political aspirations and rights and the growth of a genuine manhood; yet it is but fair to note that the evils of political slavery were qualified and set off by the excellence of the civil code and the privileges of social freedom.

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 be employed only by the rich, and even judges were venal, so that the poor did not easily find adequate redress. But all this is the necessary attendant on a factitious state of society, and by many is regarded as being quite as characteristic of modern, civilized Christian England and America as it was of Pagan Rome. Material civilization leads 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 will be forced to retreat,–as hermits sought a solitude when society had reached its lowest degradation, out of pure despair of its renovation.

AUTHORITIES

The authorities for this chapter are very numerous. Since the Institutes of Gaius have been recovered, many eminent writers on Roman law have appeared, especially in Germany and France. Many might be cited, but for all ordinary purposes of historical study the work of Lord Mackenzie on Roman Law, together with the articles of George Long in Smith's Dictionary, will be found most useful. Maine's Treatise on Ancient 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 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. Also Irving, Introduction to the Study of the Civil Law; Lindley, Introduction to the Study of Jurisprudence; Wheaton's Elements of International Law; and Vattel, Le Droit des Gens.

THE FINE ARTS

ARCHITECTURE, SCULPTURE, PAINTING

500-430 B.C

My object in the present lecture is not a criticism of the principles of art so much as an enumeration of its various forms among the ancients, to show that in this department of civilization they reached remarkable perfection, and were not inferior to modern Christian nations.

The first development of art among all the nations of antiquity was in architecture. The earliest buildings erected were houses to protect people from heat, cold, and the fury of the elements of Nature. At that remote period much more attention was given to convenience and practical utility than to beauty or architectural effect. The earliest houses were built of wood, and stone was not employed until temples and palaces arose. Ordinary houses were probably not much better than log-huts and hovels, until wealth was accumulated by private persons.

The earliest monuments of enduring magnificence were the temples of powerful priests and the palaces of kings; and in Egypt and Assyria these appear earliest, as well as most other works showing civilization. Perhaps the first great monument which arose after the deluge of Noah was the Tower of Babel, built probably of brick. It was intended to be very lofty, but of its actual height we know nothing, nor of its style of architecture. Indeed, we do not know that it was ever advanced beyond its foundations; yet there are some grounds for supposing that it was ultimately finished, and became the principal temple of the Chaldaean metropolis.

From the ruins of ancient monuments we conclude that architecture received its earliest development in Egypt, and that its effects were imposing, massive, and grand. It was chiefly directed to the erection of palaces and temples, the ruins of which attest grandeur and vastness. They were built of stone, in blocks so huge and heavy that even modern engineers are at loss to comprehend how they could have been transported and erected. All the monuments of the Pharaohs are wonders, especially such as appear in the ruins of Karnak,–a temple formerly designated as that of Jupiter Ammon. It was in the time of Sesostris, or Rameses the Great, the first of the Pharaohs of the nineteenth dynasty, that architecture in Egypt reached its greatest development. Then we find the rectangular-cut blocks of stone in parallel courses, the heavy pier, the cylindrical column with its bell-shaped capital, and the bold and massive rectangular architraves extending from pier to pier and column to column, surmounted by a deep covered coping or cornice.

The imposing architecture of Egypt was chiefly owing to the impressive vastness of the public buildings. It was not produced by beauty of proportion or graceful embellishments; it was designed to awe the people, and kindle sentiments of wonder and astonishment. So far as this end was contemplated it was nobly reached; even to this day the traveller stands in admiring amazement before those monuments that were old three thousand years ago. No structures have been so enduring as the Pyramids; no ruins are more extensive and majestic than those of Thebes. The temple of Karnak and the palace of Rameses the Great were probably the most imposing ever built by man. This temple was built of blocks of stone seventy feet in length, on a platform one thousand feet long and three hundred wide, with pillars sixty feet in height. But this and other structures did not possess that unity of design which marked the Grecian temples. Alleys of colossal sphinxes formed the approach. At Karnak the alley was six thousand feet long, and before the main body of the edifice stood two obelisks commemorative of the dedication. The principal structures of Egyptian temples do not follow the straight line, but begin with pyramidal towers which flank the gateways; then follow, usually, a court surrounded with colonnades, subordinate temples, and houses for the priests. A second pylon, or pyramidal tower, leads to the interior and most considerable part of the temple,–a portico inclosed with walls, which receives light only through the entablature or openings in the roof. Adjoining this is the cella of the temple, without columns, enclosed by several walls, often divided into various small chambers with monolithic receptacles for idols or mummies or animals. The columns stand within the walls. The colonnade is not, as among the Greeks, an expansion of the temple; it is merely the wall with apertures. The walls, composed of square blocks, are perpendicular only on the inside, and bevelled externally, so that the thickness at the bottom sometimes amounts to twenty-four feet; thus the whole building assumes a pyramidal form, the fundamental principle of Egyptian architecture. The columns are more slender than the early Doric, are placed close together, and have bases of circular plinths; the shaft diminishes upward, and is ornamented with perpendicular or oblique furrows, but not fluted like Grecian columns. The capitals are of the bell form, ornamented with all kinds of foliage, and have a narrow but high abacus. They abound with sculptured decorations, the designs of which were borrowed from the vegetation of the country. The highest of the columns of the temple of Luxor is five and a quarter times the greatest diameter.

But no monuments have ever excited so much curiosity and wonder as the Pyramids, not in consequence of any particular beauty or ingenuity in their construction, but because of their immense size and unknown age. None but sacerdotal monarchs would ever have erected them; none but a fanatical people would ever have toiled upon them. We do not know for what purpose they were raised, unless as sepulchres for kings. They are supposed to have been built at a remote antiquity, between two thousand and three thousand years before Christ. Lepsius thought that the oldest of these Pyramids were built more than three thousand years before Christ. The Pyramid of Cheops, at Memphis, covers a square whose side is seven hundred and sixty-eight feet, and rises into the air nearly five hundred feet. It is a solid mass of stone, which has suffered less from time than the mountains near it. Possibly it stands over an immense substructure, in which may yet be found the lore of ancient Egypt; it may even prove to be the famous labyrinth of which Herodotus speaks, built by the twelve kings of Egypt. According to this author, one hundred thousand men worked on this monument for forty years.

The palaces of the kings are mere imitations of the temples, their only difference of architecture being that their rooms are larger and in greater numbers. Some think that the famous labyrinth was a collective palace of many rulers.

Of Babylonian architecture we know little beyond what the Hebrew Scriptures and ancient authors tell us. But though nothing survives of ancient magnificence, we know that a city whose walls, according to Herodotus, were eighty-seven feet in thickness, three hundred and thirty-seven in height, and sixty miles in circumference, and in which were one hundred gates of brass, must have had considerable architectural splendor. This account of Babylon, however, is probably exaggerated, especially as to the height of the walls. The tower of Belus, the Palace of Nebuchadnezzar, and the Obelisk of Semiramis were probably wonderful structures, certainly in size, which is one of the conditions of architectural effect.

The Tyrians must have carried architecture to considerable perfection, since the Temple of Solomon, one of the most magnificent in the ancient world, was probably built by artists from Tyre. It was not remarkable for size,–it was, indeed, very small,–but it had great splendor of decoration. It was of quadrangular outline, erected upon a solid platform of stone, and bearing a striking resemblance to the oldest Greek temples, like those of Aegina and Paestum. The portico of the Temple as rebuilt by Herod was one hundred and eighty feet high, and the Temple itself was entered by nine gates, thickly coated with silver and gold. The inner sanctuary was covered on all sides with plates of gold, and was dazzling to the eye. The various courts and porticos and palaces with which it was surrounded gave to it a very imposing effect.

Architectural art in India was not so impressive and grand as in Egypt, and was directed chiefly to the erection of temples. Nor is it of very ancient date. There is no stone architecture now remaining in India, according to Sir James Fergusson, older than two and a half centuries before Christ; and this is in the form of Buddhist temples, generally traced to the great Asoka, who reigned from 272 B.C. to 236 B.C., and who established Buddhism as a state religion. There were doubtless magnificent buildings before his time, but they were of wood, and have all perished. We know, however, nothing about them.

The Buddhist temples were generally excavated out of the solid rock, and only the façades were ornamented. These were not larger than ordinary modern parochial churches, and do not give the impression of extraordinary magnificence. Besides these rock-hewn temples in India there remain many examples of a kind of memorial monument called stupas, or topes. The earliest of these are single columns; but the later and more numerous are in the shape of cones or circular mounds, resembling domes, rarely exceeding one hundred feet in diameter. Around the apex of each was a balustrade, or some ornamental work, about six feet in diameter. These topes remind one of the Pantheon at Rome in general form, but were of much smaller size. They were built on a stone basement less than fifty feet in height, above which was the brickwork. In process of time they came to resemble pyramidal towers rather than rounded domes, and were profusely ornamented with carvings. The great peculiarity of all Indian architectural monuments is excessive ornamentation rather than beauty of proportion or grand effect.

In course of time, however, Indian temples became more and more magnificent; and a Chinese traveller in the year 400 A.D. describes one in Gaudhava as four hundred and seventy feet high, decorated with every sort of precious substance. Its dome, as it appears in a bas-relief, must have rivalled that of St. Peter's at Rome; but no trace of it now remains. The topes of India, which were numerous, indicate that the Hindus were acquainted with the arch, both pointed and circular, which was not known to the Egyptians or the Greeks. The most important of these buildings, in which are preserved valuable relics, are found in the Punjab. They were erected about twenty years before Christ. In size, they are about one hundred and twenty-seven feet in diameter. Connected with the circular topes are found what are called rails, surrounding the topes, built in the form of rectangles, with heavy pillars. One of the most interesting of these was found to be two hundred and seventy-five feet long, having square pillars twenty-two feet in height, profusely carved with scenes from the life of Buddha, topped by capitals in the shape of elephants supporting a succession of horizontal stone beams, all decorated with a richness of carving unknown in any other country. The Amravati rail, one of the finest of the ancient monuments of India, is found to be one hundred and ninety-five by one hundred and sixty-five feet, having octagonal pillars ornamented with the most elaborate carvings.

From an architectural point of view, the rails were surpassed by the chaityas, or temple-caves, in western India. These were cut in the solid rock. Some one thousand different specimens are to be found. The facades of these caves are perfect, generally in the form of an arch, executed in the rock with every variety of detail, and therefore imperishable without violence. The process of excavation extended through ten centuries from the time of Asoka; and the interiors as well as the façades were highly ornamented with sculptures. The temple-caves are seldom more than one hundred and fifty feet deep and fifty feet in width, and the roofs are supported by pillars like the interior of Gothic cathedrals, some of which are of beautiful proportions with elaborated capitals. Though these rock-hewn temples are no larger than ordinary Christian churches, they are very impressive from the richly decorated carvings; they were lighted from a single opening in the façade, sometimes in the shape of a horseshoe.

Besides these chaityas, or temples, there are still more numerous viharas, or monasteries, found in India, of different dates, but none older than the third century before Christ. They show a central hall, surrounded on three sides by cells for the monks. On the fourth side is an open verandah; facing this is generally a shrine with an image of Buddha. These edifices are not imposing unless surrounded by galleries, as some were, supported by highly decorated pillars. The halls are constructed in several stories with heavy masonry, in the shape of pyramids adorned with the figures of men and animals. One of these halls in southern India had fifteen hundred cells. The most celebrated was the Nalanda monastery, founded in the first century by Nagarjuna, which accommodated ten thousand priests, and was enclosed by a wall measuring sixteen hundred feet by four hundred. It was to Central India what Mount Casino was to Italy, and Cluny was to France, in the Middle Ages,–the seat of learning and art.