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163

might be ejected by the sale of the estate.' Usury, the inveterate grievance of the city, had been discouraged by the Twelve Tables,' 164 and abolished by the clamors of the people. It was revived by their wants and idleness, tolerated by the discretion of the prætors, and finally determined by the Code of Justinian. Persons of illustrious rank were confined to the moderate profit of four per cent.; six was pronounced to be the ordinary and legal standard of interest; eight was allowed for the convenience of manufactures and merchants; twelve was granted to nautical insurance, which the wiser ancients had not attempted to define; but, except in this perilous adventure, the practice of exorbitant usury was severely

162 The covenants of rent are defined in the Pandects (1. xix.) and the Code, (1. iv. tit. lxv.) The quinquennium, or term of five years, appears to have been a custom rather than a law; but in France all leases of land were determined in nine years. This limitation was removed only in the year 1775, (Encyclopédie Méthodique, tom. i. de la Jurisprudence, p. 668, 669;) and I am sorry to observe that it yet prevails in the beauteous and happy country where I am permitted to reside.

163 I might implicitly acquiesce in the sense and learning of the three books of G. Noodt, de fœnore et usuris. (Opp tom. i. p. 175— 268.) The interpretation of the asses or centesima usura at twelve, the unciaria at one per cent., is maintained by the best critics and civil. ians: Noodt, (1. îì. c. 2, p. 207,) Gravina, (Opp. p. 205, &c., 210,) Heineccius, (Antiquitat. ad Institut. 1. iii. tit. xv.,) Montesquieu, (Esprit des Loix, 1. xxii. c. 22, tom. ii. p. 36. Défense de l'Esprit des Loix, tom. iii. p. 478, &c.,) and above all, John Frederic Gronovius (de Pecunia Veteri, 1. iii. c. 13, p. 213–227, and his three Antexegeses p. 455-655,) the founder, or at least the champion, of this probable opinion; which is, however, perplexed with some difficulties.

164 Primo xii. Tabulis sancitum est ne quis unciario fœnore amplius exerceret, (Tacit. Annal. vi. 16.) Pour peu (says Montesquieu, Esprit des Loix, 1. xxii. 22) qu'on soit versé dans l'histoire de Rome, on verra qu'une pareille loi ne devoit pas être l'ouvrage des décemvirs. Was Tacitus ignorant or stupid? But the wiser and more virtuous patricians might sacrifice their avarice to their ambition, and might attempt to check the odious practice by such interest as no lender would accept, and such penalties as no debtor would incur.*

The real nature of the foenus unciarium has been proved; it amounted in a year of twelve months to ten per cent. See, in the Magazine for Civil Law, by M. Hugo, vol. v. p. 180, 184, an article of M. Schrader, following up the conjectures of Niebuhr, Hist. Rom. tom. ii. p. 431.-W.

Compare a very clear account of this question in the appendix to Mr. Travers Twiss's Epitome of Niebuhr, vol. ii. p. 257.-M.

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166

restrained.100 The most simple interest was condemned by the clergy of the East and West; but the sense of mutual benefit, which had triumphed over the law of the republic, has resisted with equal firmness the decrees of the church, and even the prejudices of mankind.17

168

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." 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 prætor, 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 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

169

165 Justinian has not condescended to give usury a place in his Institutes; but the necessary rules and restrictions are inserted in the Pandects (1. xxii. tit. i. ii.) and the Code, (l. iv. tit. xxxii. xxxiii.)

166 The Fathers are unanimous, (Barbeyrac, Morale des Pères, p 144. &c.:) Cyprian, Lactantius, Basil, Chrysostom, (see his frivolous arguments in Noodt, 1. i. c. 7, p. 188,) Gregory of Nyssa, Ambrose, Jerom, Augustin, and a host of councils and casuists.

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

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 Isæus, and the sentences of Arabian and Persian cadhis,

169 Noodt (Opp. tom. i. p. 137-172) has composed a separate tres tise, ad Legem Aquilian, (Pandect. 1. ix. tit. ii.)

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 twentyfive 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. The equity of the prætors 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.

170

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.11 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

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

The narrative of Livy (i. 28) is weighty and solemn. At tu dictis, Albane, maneres, is a harsh reflection, unworthy of Virgil's humanity, (Eneid, viii. 643.) Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Æneas, (tom. iii. p. 229.)

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Draco," are written in characters of blood." They ap prove 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. 1. Any act of treason against the state, or of corre spondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and after he had been scourged by the lictor, he was suspended in the midst of the foi am on a cross, or inauspicious tree. 2. Nocturnal meetings in the city; whatever might be the pretence, of pleasure, or religion, or the public good. 3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic, and the chaste virtues of the Roman matrons." The parricide, who violated the duties of nature and gratitude, was cast into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added, as the most suitable companions." Italy produces no mon

175

172 The age of Draco (Olympiad xxxix. 1) is fixed by Sir John Marsham (Canon Chronicus, p. 593-596) and Corsini, (Fasti Attici, tom. iii. p. 62.) For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c.

173 The viith, de delictis, of the xii. tables is delineated by Gravina, (Opp. p. 292, 293, with a commentary, p. 214-230.) Aulus Gellius (xx. 1) and the Collatio Legum Mosaicarum et Romanarum afford much original information.

174 Livy mentious two remarkable and flagitious æras, of 3000 persons accused, and of 190 noble matrons convicted, of the crime of poisoning, (xl. 43, viii. 18.) Mr. Hume discriminates the ages of private and public virtue, (Essays, vol. i. p. 22, 23.). I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation.

176 The xii. tables and Cicero (pro Roscio Amerino, c. 25, 26) are content with the sack; Seneca (Excerpt. Controvers. v 4) adorns it with serpents; Juvenal pities the guiltless monkey (innoxia simiaSatir. i 156.) Adrian (apud Dositheum Magistrum, 1. iii. c. 6

keys; but the want could never be felt, till the middle of the sixth century first revealed the guilt of a parricide." 4. The malice of an incendiary. After the previous cere. mony of whipping, he himself was delivered to the flames and in this example alone our reason is tempted to applaud the justice of retaliation. 5. Judicial perjury. The cor rupt or malicious witness was thrown headlong from the Tarpeian rock, to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws, and the deficiency of written evidence. 6. The corruption of a judge, who accepted bribes to pronounce an iniquitous sentence. 7 Libels and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastisement, but it is not certain that he was left to expire under the blows of the executioner." 177 8. The nocturnal mischief of damaging or destroying a neighbor's corn. The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twenty-five pounds of copper. 9. Magical incantations; which had power, in the opinion of the Latin shepherds, to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deep-rooted plantations. The cruelty of the twelve tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism.178 * After the judicial

p. 874-876, with Schulting's Note,) Modestinus, (Pandect. xlviii. tit. ix. leg. 9,) Constantine, (Cod. 1. ix. tit. xvii.,) and Justinian, (Institut 1. iv. tit. xviii.,) enumerate all the companions of the parricide. But this fanciful execution was simplified in practice. Hodie tamen viv exuruntur vel ad bestias dantur, (Paul. Sentent. Recept. I. v. tit. xxiv p. 512, edit. Schulting.)

176 The first parricide at Rome was L. Ostius, after the second Punic war, (Plutarch, in Romulo, tom. i. p. 54.) During the Cimbric, P. Malleolus was guilty of the first matricide, (Liv. Epitom. 1. lxviii.)

177 Horace talks of the formidine fustis, (1. ii. epist. ii. 154,) but Cicero (de Republicâ, 1. iv. apud Augustin. de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393, edit. Olivet) affirms that the de cem virs made libels a capital offence: cum perpaucas res capite sanxissent-perpaucus !

178 Bynkershoek (Observat. Juris Rom. 1. i. c. 1, in Opp. tom. i

Hugo (Histoire du Droit Romain, tom. i. p. 234) concurs with Gibbon See Nichuhr, vol. ii. p. 313.-M.