Gibbon's The Decline And Fall Of The Roman Empire
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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.]
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