common enjoyments and advantages which make life among friends agreeable. For this reason every Roman looked with horror upon a forcible separation from his home, and exile was a punishment second only to capital punishment in severity. CHAP. V. Pecuniary fines are a punishment which has at all Fines. times been much in use, although they, in fact, answer very imperfectly the purpose of a just retribution. For they often fail in making the offender, who ought to be personally responsible, to suffer in his own person for his offence. The payment of a fine looks very much like buying impunity for a crime; the hardship which it entails is generally felt by the relatives of the guilty person, although they may be entirely innocent, and it may fail to be a punishment altogether, if the party subjected to it happen to be a rich man. Nevertheless this punishment was most frequently applied by the Romans on account of its easy application and its humanity in comparison with corporal sufferings. It is of great importance, above all, in the history of civilisation; for by its means the criminal law was enabled with the aid of religious influences to abolish revenge and retaliation, and to substitute compensation and reconciliation. Private war for the punishment of offences was first restricted by the introduction of fine or atonement (pana, πový). Hence is explained in the Roman law the fine in so-called private delinquencies. The injured party, instead of taking revenge, accepted damages-as, in cases of theft, four times the value of the stolen article. Pecuniary fines were an effective means for upholding the authority of the law, and were employed to punish political offences, as also to enforce fiscal and police regulations. They were peculiarly appropriate as punishments in cases of embezzlement, and were effectually employed by the ædiles for enforcing the laws which protected the public revenue and limited the appropriation of state domains and the pasturing of cattle on common land. The imposition of heavy fines would have been still more suitable in cases BOOK Practical abolition of capital punish ment. of an offence which, after the conquest of Sicily, had begun to undermine the republic-the plundering of subject countries by Roman magistrates and adventurers of all kinds. If these men could have been made to understand that by the shameful abuse of their position and delegated authority they only prepared their own ruin instead of securing the hoped-for plunder, the old republican virtue and with it the republic itself might have continued to exist unimpaired. But, unfortunately, the evil increased so rapidly and so formidably that only a few sanguine men continued to hope that it could be arrested by means of legal repression. From the beginning of the republic the personal liberty of the citizens had been secured from arbitrary power. This protection was constantly extended and more effectually guaranteed by law. The life and liberty of individuals increased in value and importance with the growth of the state. Capital punishment was rarely put into practice against Roman citizens after the Valerian laws had permitted an appeal to the people. It was at length almost entirely superseded by the right of every accused man to avoid a sentence of condemnation by going into voluntary exile before the sentence was passed. Political death by expulsion from the community, with deprivation of all further share in the political and social life of the republic, was looked upon by Romans as sufficient punishment even for crimes worthy of death. But banishment, which was at first and in theory really a severe punishment, almost entirely lost this character when towns like Præneste, Tibur, and Naples, which had in former times been hostile or independent, had become Roman to all intents and purposes, and yet continued to enjoy the right of sheltering within their walls condemned Roman offenders. A great confusion must have arisen in the notions of right and wrong; the difference between a Roman and a subject of the republic must have been keenly felt by the latter as an insupportable badge of political and social 1 See vol. i. p. 379. V. inferiority, when the free and unmolested residence in a CHAP. pleasant Italian town like Naples was considered for the former the expiation of a crime worthy of death-in other words, when a Roman criminal was placed on the same level with an innocent ally! The mass of the Italians who, as customary with the lower classes in all countries, judged of their position only by material advantages and disadvantages, were perhaps indifferent to so revolting a proof of legal inequality between them and the actual Romans. But it would have been astonishing indeed if the higher classes of the Italian population had not regarded with jealousy and indignation a Roman privilege which carried with it a sentence of degradation for themselves. The privilege of escaping punishment by voluntary Frustraexile evidently frustrated, according to our notions, the tion of justice. strict and impartial execution of justice. But this was not the only benefit which a Roman citizen enjoyed. The criminal procedure was furnished with so many safeguards for the protection of the accused that we can scarcely understand how the penal laws could be fairly and honestly carried out at all. All legal proceedings could at any time be arrested by the intercession of any one of the ten tribunes; the announcement of unfavourable auspices could prevent the holding or terminate the proceedings of any popular assembly, whether convened for passing a law or for trying an offender; and the prosecutor could retire either voluntarily or under compulsion or threats. It appears that it was found necessary to obviate the dangers arising from a general right of prosecuting, by formalities which were intended to be a safeguard against charges either frivolous or inspired by the animosity of political opponents. But this protection offered no security from abuse; it merely presented an opportunity for remedying in some measure the evils of a faulty and defective system, and it shows in the administration of law the same phenomenon which we can trace in the whole political organization of the state-namely, the system of mutual checks. If, in spite of the fully-developed right BOOK of intercession; in spite of the scrupulous attention to formalities; in spite of the whole machinery of auspicia, omens, and prodigies, the freedom of public and private life continued, and right in the end prevailed over wrong, it is due, not to the imperfect organism of the political order, but to the health and vigour of the Roman people in their best time, when the extent of the state and its economical condition had not yet outgrown the proportions for which this order was created. 141 CHAPTER VI. POLICE. THE contrast between ancient and modern political life never perhaps appears more striking than when we consider what is done or attempted in our time to give facilities for traffic and intercourse, to remove difficulties and obstacles that hinder their expansion, to advance general wellbeing, to alleviate suffering, and systematically to promote education, science, and art. The ancient states paid less attention than is paid in modern times to these matters, which are not, like protection from external and internal enemies, included in the primary objects of every political organism. Many of these modes of furthering the public good seemed to the statesmen of antiquity to lie completely beyond their legitimate sphere of action. The state as such did not pay attention to institutions for charity, for health and education; even the means of communication were attended to almost exclusively from a military point of view for the purpose of facilitating the defence of the country. It was not considered the duty of the state to open roads for commercial enterprise, or to regulate and superintend trade. Only the beginnings of police regulations for markets and streets, and rudimentary efforts to promote the public health, are traceable at an early period among the practical Romans. CHAP. VI. Ancient ideas as to the func tions of the state. The office of the ædiles was established for this The plebeian and humble department of the administration soon after the curule commencement of the republic. In the year 367 B.C. two ædiles. magistrates, bearing the name of curule ædiles (ædiles curules), were added to the two plebeian ædiles. They |