the Areopagus at Athens for the murder of his mother, and the judges were divided, he was acquitted by the determination (sententia) of that goddess, Cic. pro Mil. 3. et ibi Lambin. Eschyl. Eumenid. v. 738. In allusion to this, a privilege was granted to Augustus, if the number of the judices, who condemned, was but one more than of those that acquitted, of adding his vote to make an equality: and thus of acquitting the criminal, Dio. li. 19.

While the judices were putting the ballots into the urn, the criminal and his friends threw themselves at their feet, and used every method to move their compassion, Valer. Max. viii. 1.6. Ascon. in Cic. pro M. Scauro.

The prætor, when about to pronounce a sentence of condemnation, used to lay aside his toga pretexta, Plutarch. in Cic. Senec. de Ira, i. 16.

In a trial for extortion, sentence was not passed after the first action was finished; that is, after the accuser had finished his pleading, and the defender had replied; but the cause was a second time resumed (causa iterum dicebatur vel agebatur), after the interval of a day, or sometimes more (especially if a festival intervened, as in the case of Verres, Cic. Verr. i. 7.), which was called COMPERENDINATIO, or -atus, -tûs, Cic. Verr. i. 9. et ibi Ascon. &c. Then the defender spoke first, and the accuser replied; after which sentence was passed. This was done, although the cause was perfectly clear, by the Glaucian law; but before that, by the Acilian law, criminals were condemned after one hearing (semel dictâ causâ, semel auditis testibus), ibid.

When there was any obscurity in the cause, and the judices were uncertain whether to condemn or acquit the criminal, which they expressed by giving in the tablets, on which the letters N. L. were written, and the prætor, by pronouncing AMPLIUS, Cic. ibid., the cause was deferred to any day the prætor chose to name. This was called AMPLIATIO [an adjournment], and the criminal or cause was said ampliari; which sometimes was done several times, and the cause pleaded each time anew, Cic. Brut. 22. Bis ampliatus, tertiò absolutus est reus, Liv. xliii. 2. So iv. 44. Causa L. Cotta septies ampliata, et ad ultimum octavo judicio absoluta est, Valer. Max. viii. 1. 11. Sometimes the prætor, to gratify the criminal or his friends, put off the trial till he should resign his office, and thus not have it in his power to pass sentence (ne diceret jus) upon him, Liv. xli. 22.

If the criminal was acquitted, he went home and resumed his usual dress (sordido habitu posito, albam togam resumebat). If there was ground for it, he might bring his accuser to a trial for false accusation (CALUMNIE), or for what was called PREVARICATIO; that is, betraying the cause of one's client, and, by neglect or collusion, assisting his opponent, Cic. Topic. 36. Plin. Epist. i. 20. iii. 9. Quinctil.

ix. 2.

PRÆVARICARI, comp. of præ et varico, v. -or (from varus, bow or bandy legged, crura incurva habens), signifies properly to straddle, to stand or walk wide, with the feet too far removed from one another, not to go straight, (arator, nisi incurvus, prævaricatur, i. e. non rectum sulcum agit, vel a recto sulco divertit, Plin.) Hence, to shuffle, to play fast and loose, to act deceitfully (in contrariis causis quasi variè esse positus, Cic. ibid.).

CRIMINAL CAUSES TRIED IN THE SENATE.

231

If the criminal was condemned, he was punished by law according to the nature of his crime.

Under the emperors, most criminal causes were tried in the senate, Dio. lvii. 16., et alibi passim, who could either mitigate or extend the rigour of the laws (mitigare leges et intendere), Plin. Ep. ii. 11. iv. 9., although this was sometimes contested; (aliis cognitionem senatûs lege conclusam, aliis liberam solutamque dicentibus), Id.

If a person was charged with a particular crime, comprehended in a particular law, select judges were appointed; but if the crimes were various, and of an atrocious nature, the senate itself judged of them, Plin. ii. 10., as the people did formerly; whose power Tiberius, by the suppression of the Comitia, transferred to the senate, Tacit. Annal. i. 15. When any province complained of their governors, and sent ambassadors to prosecute them, (legatos vel inquisitores mittebant, qui in eos inquisitionem postularent,) the cause was tried in the senate, who appointed certain persons of their own number to be advocates, Plin. Ep. ii. 11. iii. 9., commonly such as the province requested, ibid.

iii. 4.

When the senate took cognizance of a cause, it was said suscipere vel recipere cognitionem, and dare inquisitionem, Plin. Ep. vi. 29., when it appointed certain persons to plead any cause, DARE ADVOCATOS, v. PATRONOS, Id. ii. 11. iii. 4. vi. 29. vii. 6. 33. So the emperor, Id. vi. 22. When several advocates either proposed or excused themselves, it was determined by lot who should manage the cause (nomina in urnam conjecta sunt), Id. x. 20.

When the criminal was brought into the senate-house, by the lictors, he was said esse INDUCTUS, Id. ii. 11, 12. v. 4. 13. So the prosecutors, Id. v. 20.

When an advocate began to plead, he was said descendere ut acturus, ad agendum vel ad accusandum, Id. v. 13., because, perhaps, he stood in a lower place than that in which the judges sat, or came from a place of ease and safety to a place of difficulty and danger: thus descendere in aciem, v. prælium, in campum v. forum, &c. to go on and finish the cause, causam peragere, v. perferre, ib. If an advocate betrayed the cause of his client (si prævaricatus esset), he was suspended from the exercise of his profession (ei advocationibus interdictum est), or otherwise punished, ibid.

An experienced advocate commonly assumed a young one in the same cause with him, to introduce him at the bar and recommend him to notice, (producere, ostendere famæ et assignare famæ), Plin. Ep. vi. 23.

After the senate passed sentence, criminals used to be executed without delay. But Tiberius caused a decree to be made, that no one condemned by the senate should be put to death within ten days; that the emperor, if absent from the city, might have time to consider their sentence, and prevent the execution of it, if he thought proper, Dio. lvii. 20. lviii. 27. Tacit. Annal. iii. 51. Suet. Tib. 75. Senec. trang. an. 14.

PUNISHMENTS* among the Romans were of eight kinds :

1. MULCTA vel damnum, a fine, which at first never exceeded two oxen and thirty sheep, or the valuation of them. See Lex ATERIA, Liv. iv. 30. But afterwards it was increased.

2. VINCULA, bonds, which included public and private custody: public, in prison, into which criminals were thrown after confession or conviction, Cic. de Divin. i. 25. Tacit. iii. 51.; and private, when they were delivered to magistrates, or even to private persons, to be kept at their houses (in liberâ custodia, as it was called) till they should be tried, Sallust. Cat. 47. Liv. xxxix. 14. Tacit. vi. 3.

A prison (CARCER) was first built by Ancus Martius, Liv. i. 33, and enlarged by Servius Tullius; whence that part of it below ground, built by him, was called TULLIANUM, Sallust. Cat. 55. Varr.de Lat. Ling. iv. 32., or LAUTUMIÆ, i. e. loca ex quibus lapides excisi sunt, Fest. in voce, Liv. xxvi. 27. xxxii. 26. xxxvii. 5. xxxix. 44., in allusion to a place of the same kind built by Dionysius at Syracuse, Cic. Verr. v. 27. 55. Another part, or, as some think, the same part, from its security and strength, was called ROBUR, or robus, Festus in voce, Liv. xxxviii. 59. Valer. Max. vi. 3. 1. Tacit. Annal. iv. 29.

Under the name of vincula were comprehended catenæ, chains; compedes vel pedicæ, fetters or bonds for the feet; manica, manacles or bonds for the hands; NERVUS, an iron bond or shackle for the feet or neck, Festus in voce; also a wooden frame with holes, in which the feet were put and fastened, the stocks: sometimes also the hands and neck called likewise COLUMBAR, Plaut. Rud. iii. 6. 30. Liv. viii. 28. Boa, leathern thongs, and also iron chains, for tying the neck or feet, Plaut. Asin. iii. 3. 5.

3. VERBERA, beating or scourging, with sticks or staves (fustibus); with rods (virgis); with whips or lashes (flagellis). But the first were in a manner peculiar to the camp, where the punishment was called FUSTUARIUM, and the last to slaves, Horat. Epod. 4. Cic. Rabir. perd. 4. Juvenal. x. 109. Cic. Verr. iii. 29. Rods only were applied to citizens, and these too were removed by the Porcian law, Liv. x. 9. Sallust. Cat. 51. Cic. ib. But under the emperors citizens were punished with these and more severe instruments, as with whips loaded with lead (plumbatis), &c.

4. TALIO (similitudo supplicii vel vindicta, hostimentum), a punishment similar to the injury, an eye for an eye, a limb for a limb, &c. But this punishment, although mentioned in the Twelve Tables, seems very rarely to have been inflicted, because by law the removal of it could be purchased by a pecuniary compensation (talio vel pæna redimi poterat), Gell. xx. 1.

5. IGNOMINIA vel Infamia. Disgrace or infamy was inflicted (inurebatur vel irrogabatur), either by the censors or by the law, and by the edict of the prætor. Those made infamous by a judicial sen

Pana, Gr. Town, properly means penalty, atonement; hence the phrases dare pœnas, to give satisfaction, to suffer punishment; sumere panas, to exact atonement, to punish.

EXILIUM

SERVITUS

CAPITAL PUNISHMENTS.

233

tence, were deprived of their dignity, and rendered incapable of enjoying public offices, sometimes also of being witnesses, or of making a testament; hence called INTESTABILES, Digest.

6. EXILIUM [e. solo], banishment. * The word was not used in a judicial sentence, but AQUÆ ET IGNIS INTERDICTIO, forbidding one the use of fire and water, whereby a person was banished from Italy, but might go to any other place he chose. Augustus introduced two new forms of banishment, called DEPORTATIO, perpetual banishment to a certain place [with loss of property]; and RELEGATIO, either a temporary or perpetual banishment of a person to a certain place, without depriving him of his rights and fortunes. [Such was the instance of Marius, Juv. Sat. i. 47.] See p. 63. Sometimes persons were only banished from Italy (iis Italiâ interdictum) for a limited time, Plin. Ep. iii. 9. †

7. SERVITUS, slavery. Those were sold as slaves, who did not give in their names to be enrolled in the censor's books, or refused to enlist as soldiers; because thus they were supposed to have voluntarily renounced the rights of citizens, Cic. Cacin. 34. See p. 63.

8. MORS, death, was either civil or natural. Banishment and slavery were called a civil death. Only the most heinous crimes were punished by a violent death.

In ancient times it seems to have been most usual to hang malefactors (infelici arbori suspendere), Liv. i. 26.; afterwards, to scourge (virgis cædere) and behead them (securi percutere), Liv. ii. 5. vii. 19. xxvi. 15.; to throw them from the Tarpeian rock (de saxo Tarpeio dejicere), Id. vi. 20.; or from that place in the prison called Robur, Festus, Valer. Max. vi. 31.; also to strangle them (laqueo gulam, guttur, vel cervicem frangere) in prison, Id. v. 4. 7. Sallust. Cat. 55. Vatin. 11. Lucan. ii. 154.

Cic.

The bodies of criminals, when executed, were not burnt or buried: but exposed before the prison, usually on certain stairs, called GE

"With or without confiscation of property. (Tac. Ann. iv. 43.) ‹ Vulcatius Moschus, exul, in Massilienses receptus, bona sua reipublicæ eorum, ut patriæ reli››› T. querat.'

"Exilium, as Cicero rightly observes (pro Cacinâ, 34.), was not banishment, which was utterly unknown to the Roman law: it was nothing but the act whereby a man renounced the freedom of his own city by taking up his municipal franchise; and the liberty which a person bound by sureties to stand his trial before the people had of withdrawing from the consequences of their verdict by exiling himself, was only an application of the general principle. If the accused staid till sentence was passed, he was condemned as a Roman, and it would be executed upon him wherever he was taken: but if he availed himself of his municipal franchise in time, he had become a citizen of a foreign state, and the sentence was null and void. The ground of this exemption was not his migrating, but his attaching himself to a city which had a sworn treaty of isopolity with Rome: they who settled in an unprivileged place needed a decree of the people, declaring that their settlement should operate as a legal erilium. (Liv. xxvi. 3.)"— Nieb. ii. p. 63. "A person banished by a legal sentence, or who chose to exile himself, to escape punishment, forfeited, but not irrecoverably, all the rights of citizenship. It would appear, however, that he was allowed to retain part of his property. This opinion, at least, is somewhat probable, from the two following circumstances: 1. He was expressly prohibited by law from making a will. This prohibition would have been superfluous, if he had possessed no property to bequeath. 2. We find Seneca complaining of the vast riches, which the exiles of his time carried with them into banishment. Eo temporum prolapsa est luxuria, ut majus viaticum exulum sit, quam olim patrimonium divitum.' (Sen. ad Hel 12. See also Tac. Ann. xii. 22.)"— Crombie's G. ii. 320.

234

PUNISHMENTS UNDER THE EMperors.

MONIÆ SC. scalæ, vel GEMONII gradus (quòd gemitûs locus esset); and then dragged with a hook (unco tracti), and thrown into the Tiber, Suet. Tib. 53. 61. 75. Vitell. 17. Tacit. Hist. iii. 74. Plin. viii. 40. s. 61. Valer. Max. vi. 3. 3. Juvenal. x. 66. Sometimes, however, the friends purchased the right of burying them.

Under the emperors, several new and more severe punishments were contrived; as, exposing to wild beasts (ad bestias damnatio), burning alive (vivicomburium), &c. When criminals were burnt, they were dressed in a tunic besmeared with pitch and other combustible matter, called TUNICA MOLESTA, Senec. Ep. 14. Juvenal. i. 155. viii. 235. Martial. x. 25. 5., as the Christians are supposed to have been put to death, Tacit. Annal. xv. 44. Pitch is mentioned among the instruments of torture in more ancient times, Plaut. Capt. iii. 4. 65. Lucret. iii. 1030.

Sometimes persons were condemned to the public works, to engage with wild beasts, or fight, as gladiators, Plin. Ep. x. 40., or were employed as public slaves in attending on the public baths, in cleansing common sewers, or repairing the streets and highways, ibid.

Slaves after being scourged (sub furcá cæsi) were crucified (in crucem acti sunt), usually with a label or inscription on their breast, intimating their crime, or the cause of their punishment, Dio. liv. 3. as was commonly done to other criminals, when executed, Suet. Cal. 32. Dom. 10. Thus Pilate put a title or superscription on the cross of our Saviour, Matt. xxvii. 37. John xix. 19. The form of the cross is described by Dionysius, vii. 69. Vedius Pollio, one of the friends of Augustus, devised a new species of cruelty to slaves, throwing them into a fish-pond to be devoured by lampreys (murana), Plin. ix. 23. s. 39. Dio. liv. 23. *

A person guilty of parricide, that is, of murdering a parent or any near relation, after being severely scourged (sanguineis virgis casus), was sewed up in a sack (culeo insutus), with a dog, a cock, a viper, and an ape, and then thrown into the sea or a deep river, Cic. pro Rosc. Amer. ii. 25, 26. Senec. Clem. i. 23. †

RELIGION OF THE ROMANS.

1. THE GODS WHOM THEY WORSHIPPED.

THESE were very numerous, and divided into Dii majorum gentium, and Minorum gentium, Cic. Tusc., i. 13. in allusion to the division of See p. 3.

senators.

"The Greeks and Romans," observes Dacier, on Hor. Epist. i. 15. 36., "branded the belly of a gluttonous slave; the feet of a fugitive; the hands of a thief; and the tongue of a babbler."

"The Twelve Tables and Cicero (1. c.) are content with the sack; Seneca (Erc. Controv. v. 4.) adorns it with serpents; Juvenal pities the guiltless monkey (innoria simia, Sat. xiii. 156.). 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. The first parricide at Rome was L. Ostius, after the second Punic war (Plut. Rom. t. i. p. 57.) During the Cimbric, P. Malleolus was guilty of the first matricide. (Liv Epit. lxviii.)" ·Gibbon's Decline and Fall, ch. xliv.