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History of the Decline and Fall of the Roman Empir

And Justinian defended the propriety of the execution


[Footnote 194: See the oration of Aeschines against the catamite Timarchus, (in Reiske, Orator. Graec. tom. iii. p. 21--184.)]

[Footnote 195: A crowd of disgraceful passages will force themselves on the memory of the classic reader: I will only remind him of the cool declaration of Ovid:-- Odi concubitus qui non utrumque resolvant. Hoc est quod puerum tangar amore minus.]

[Footnote 196: Aelius Lampridius, in Vit. Heliogabal. in Hist. August p. 112 Aurelius Victor, in Philippo, Codex Theodos. l. ix. tit. vii. leg. 7, and Godefroy's Commentary, tom. iii. p. 63. Theodosius abolished the subterraneous brothels of Rome, in which the prostitution of both sexes was acted with impunity.]

Chapter XLIV: Idea Of The Roman Jurisprudence.--Part VIII.

A new spirit of legislation, respectable even in its error, arose in the empire with the religion of Constantine. [197] The laws of Moses were received as the divine original of justice, and the Christian princes adapted their penal statutes to the degrees of moral and religious turpitude. Adultery was first declared to be a capital offence: the frailty of the sexes was assimilated to poison or assassination, to sorcery or parricide; the same penalties were inflicted on the passive and active guilt of paederasty; and all criminals of free or servile condition were either drowned or beheaded, or cast alive into the avenging flames. The adulterers were spared by the common sympathy of mankind; but the lovers of their own sex were pursued by general and pious indignation: the impure manners of Greece still prevailed in the cities of Asia, and every vice was fomented by the celibacy of the monks and clergy. 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. [198] 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 paederasty became the crime of those to whom no crime could be imputed. A French philosopher [199] 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. [200]

[Footnote 197: See the laws of Constantine and his successors against adultery, sodomy &c., in the Theodosian, (l. ix. tit. vii. leg. 7, l. xi. tit. xxxvi leg. 1, 4) and Justinian Codes, (l. ix. tit. ix. leg. 30, 31.) These princes speak the language of passion as well as of justice, and fraudulently ascribe their own severity to the first Caesars.]


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