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History of the Decline and Fall of the Roman Empir

They were restored by the sentence of the praetor


[Footnote

167: Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of foenus, the principal is supposed to generate the interest: a breed of barren metal, exclaims Shakespeare--and the stage is the echo of the public voice.]

3. Nature and society impose the strict obligation of repairing an injury; and the sufferer by private injustice acquires a personal right and a legitimate action. If the property of another be intrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such temporary possession; we are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author. [168] A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim. They were restored by the sentence of the praetor, and the injury was compensated by double, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact, or detected by a subsequent research. The Aquilian law [169] defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence: the highest price was allowed that could be ascribed to the domestic animal

at any moment of the year preceding his death; a similar latitude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual: the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the decemvirs had confounded all hasty insults, which did not amount to the fracture of a limb, by condemning the aggressor to the common penalty of twenty-five asses. But the same denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce: and the insolence of a wealthy Roman indulged himself in the cheap amusement of breaking and satisfying the law of the twelve tables. Veratius ran through the streets striking on the face the inoffensive passengers, and his attendant purse-bearer immediately silenced their clamors by the legal tender of twenty-five pieces of copper, about the value of one shilling. [170] The equity of the praetors examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages, the magistrate assumed a right to consider the various circumstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person; but if he admitted the idea of a fine, a punishment, an example, he invaded the province, though, perhaps, he supplied the defects, of the criminal law. [Footnote 168: Sir William Jones has given an ingenious and rational Essay on the law of Bailment, (London, 1781, p. 127, in 8vo.) He is perhaps the only lawyer equally conversant with the year-books of Westminster, the Commentaries of Ulpian, the Attic pleadings of Isaeus, and the sentences of Arabian and Persian cadhis.]

[Footnote 169: Noodt (Opp. tom. i. p. 137--172) has composed a separate treatise, ad Legem Aquilian, (Pandect. l. ix. tit. ii.)]

[Footnote 170: Aulus Gellius (Noct. Attic. xx. i.) borrowed this story from the Commentaries of Q. Labeo on the xii. tables.]

The execution of the Alban dictator, who was dismembered by eight horses, is represented by Livy as the first and the fast instance of Roman cruelty in the punishment of the most atrocious crimes. [171] But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The twelve tables afford a more decisive proof of the national spirit, since they were framed by the wisest of the senate, and accepted by the free voices of the people; yet these laws, like the statutes of Draco, [172] are written in characters of blood. [173] They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastisements of flagellation and servitude; and nine crimes of a very different complexion are adjudged worthy of death.


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