497, 498.) Hadrian, (ad Concil. Baeticae,) most severe where the offence was most frequent, condemns the criminals, ad gladium, ludi damnationem, (Ulpian, de Officio Proconsulis, l. viii. in Collatione Legum Mosaic. et Rom. tit. xi p. 235.)]
A sin, a vice, a crime, are the objects of theology, ethics,
and jurisprudence. Whenever their judgments agree, they corroborate each other; but, as often as they differ, a prudent legislator appreciates the guilt and punishment according to the measure of social injury. On this principle, the most daring attack on the life and property of a private citizen is judged less atrocious than the crime of treason or rebellion, which invades the majesty of the republic: the obsequious civilians unanimously pronounced, that the republic is contained in the person of its chief; and the edge of the Julian law was sharpened by the incessant diligence of the emperors. The licentious commerce of the sexes may be tolerated as an impulse of nature, or forbidden as a source of disorder and corruption; but the fame, the fortunes, the family of the husband, are seriously injured by the adultery of the wife. The wisdom of Augustus, after curbing the freedom of revenge, applied to this domestic offence the animadversion of the laws: and the guilty parties, after the payment of heavy forfeitures and fines, were condemned to long or perpetual exile in two separate islands. ^189 Religion pronounces an equal censure against the infidelity of the husband; but, as it is not accompanied by the same civil effects, the wife was never permitted to vindicate her wrongs; ^190 and the distinction of simple or double adultery, so familiar and so important in the canon law, is unknown to the jurisprudence of the Code and the Pandects. I touch with reluctance, and despatch with impatience, a more odious vice, of which modesty rejects the name, and nature abominates the idea. The primitive Romans were infected by the example of the Etruscans ^191 and Greeks: ^192 and in the mad abuse of prosperity and power, every pleasure that is innocent was deemed insipid; and the Scatinian law, ^193 which had been extorted by an act of violence, was insensibly abolished by the lapse of time and the multitude of criminals. By this law, the rape, perhaps the seduction, of an ingenuous youth, was compensated, as a personal injury, by the poor damages of ten thousand sesterces, or fourscore pounds; the ravisher might be slain by the resistance or revenge of chastity; and I wish to believe, that at Rome, as in Athens, the voluntary and effeminate deserter of his sex was degraded from the honors and the rights of a citizen. ^194 But the practice of vice was not discouraged by the severity of opinion: the indelible stain of manhood was confounded with the more venial transgressions of fornication and adultery, nor was the licentious lover exposed to the same dishonor which he impressed on the male or female partner of his guilt. From Catullus to Juvenal, ^195 the poets accuse and celebrate the degeneracy of the times; and the reformation of manners was feebly attempted by the reason and authority of the civilians till the most virtuous of the Caesars proscribed the sin against nature as a crime against society. ^196
[Footnote 189: Till the publication of the Julius Paulus of
Schulting, (l. ii. tit. xxvi. p. 317 - 323,) it was affirmed and
believed that the Julian laws punished adultery with death; and
the mistake arose from the fraud or error of Tribonian. Yet
Lipsius had suspected the truth from the narratives of Tacitus,
(Annal. ii. 50, iii. 24, iv. 42,) and even from the practice of
Augustus, who distinguished the treasonable frailties of his
female kindred.]
[Footnote 190: In cases of adultery, Severus confined to the
husband the right of public accusation, (Cod. Justinian, l. ix.
tit. ix. leg. 1.) Nor is this privilege unjust - so different are
the effects of male or female infidelity.]
[Footnote 191: Timon (l. i.) and Theopompus (l. xliii. apud
Athenaeum, l. xii. p. 517) describe the luxury and lust of the
Etruscans. About the same period (A. U. C. 445) the Roman youth
studied in Etruria, (liv. ix. 36.)]
[Footnote 192: The Persians had been corrupted in the same
school, (Herodot. l. i. c. 135.) A curious dissertation might be
formed on the introduction of paederasty after the time of Homer,
its progress among the Greeks of Asia and Europe, the vehemence
of their passions, and the thin device of virtue and friendship
which amused the philosophers of Athens. But scelera ostendi
oportet dum puniuntur, abscondi flagitia.]
[Footnote 193: The name, the date, and the provisions of this law are equally doubtful, (Gravina, Opp. p. 432, 433. Heineccius, Hist. Jur. Rom. No. 108. Ernesti, Clav. Ciceron. in Indice Legum.) But I will observe that the nefanda Venus of the honest German is styled aversa by the more polite Italian.] [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.]