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"so base was this fraudulent casuistry deemed, that they were every where held in contempt, and, as to their character, torn in pieces; and the Censors Afterwards visited them with all the penalties and disgraces of every brand, because they had not performed their oath." And adds, that Cornelius Nepos says, so intolerable was their punishment, that they could endure life no longer, and committed suicide. It has struck me as possible, that Michaelis, in a cursory glance at this passage, mistook the word afterwards as though it implied that subsequently to this transaction, in which the custom originated, the Censors usually marked a perjurer as a bad man. Be this as it may, he had surely forgotten what the Censors' brand for perjury implied; it not merely affected the character; its punishment was of a much more palpable and tangible kind; it involved degradation in rank, and the loss of every privilege of a Roman citizen,—a total disfranchisement. And of these individual offenders Livy tells us expressly, "that they were cited by the Censors,—that those among them who had a public horse assigned to them, were deprived of it; that they were degraded from their tribe, and all disfranchised*."
Another passage of Michaelis I confess much surprised me, considering his reputation for accuracy, learning, and deep research. "The ancient * L. xxi. 18.
Romans left it to their gods to avenge the perjurer's wickedness; and, however much in aftertimes, the fear of the gods, and the principles of honesty, disappeared at Rome, still we find this rational maxim of their ancestors subsisting in the reign of Alexander Severus, 'It is enough for the guilt of perjury to have the Deity its avenger.'" How this could be regarded as a mawim of their ancestors it is difficult to understand, when the testimony of Livy, in the very passage which Michaelis quotes, refers to an early age of their republic; and when Aulus Gellius himself sends us back to a still more remote date for a more severe punishment, lamenting the increase of the crime of perjury as a consequence of the mitigated penalty which, in his days, visited the offence. "Think ye, friend Favorinus," are his remarkable words, "if that punishment for false witness, which was enacted by the Twelve Tables*, had not been abolished; and if now, as in past times, whoever was convicted of false witness were thrown down from the Tarpeian Rock, so many would not be ready to testify falsely as we now see-f-?" But this is not the only mistake
* See a curious oversight of our celebrated commentator with regard to the Laws of the Twelve Tables, at the close of the next chapter.
t It has been said, that this might refer to false accusation (as among the Jews, Deut. xix. 19), but I see nothing in Aulus Gellius to countenance that supposition. His words are "De falsis testimoniis"—"qui falsum testimonium dixisse convictus esset."—Book xx., c. I.
into which Michaelis must have been betrayed, before he could have written such a sentence. He represents the sentiment,—"it is enough for the guilt of perjury to have the Deity its avenger," as a legal maxim prevalent at Rome in the time of Alexander Severus. He is by no means justified in this assertion. The facts are these; Antoninus Caracalla and Severus had enacted, "if any one should swear by the Genius of the Prince, that he ought not to pay the demand of the plaintiff, and should swear falsely; or if he undertook, upon oath, to pay within a certain time, and did not pay, he should be scourged and dismissed, whilst these words, in Greek, should be pronounced over him, "Swear not rashly*." Now all that Alexander Severus enacts, with regard to this specific law, is, "that no one should be in danger of bodily pains or penalties, nor be deemed guilty of treason, should he rashly, in a passion, or in a heat, have sworn falsely, though it were even by the name of the Prince-)-.'" We know from various sources of evidence, that it was considered far less dangerous in Rome, to swear falsely by any of the Deities worshipped there than by the Genius of the Emperor. Had a false oath been taken deliberately in the time of Alexander Severus, there is no colour for the assertion, that it would have been
passed over by the civil magistrate, and referred to the gods as avengers of their own dignity.
It must not, on the other hand, be forgotten, that expressions occur, which seem to militate against this conclusion; but I have not met with any, which do not admit of a satisfactory explanation. For example; when his accuser laid to the charge of Rubius, a Roman knight, that "he had violated the name of Augustus by perjury," (evidently making the gravamen of the offence to consist in the perjury having been incurred in the name of the deified emperor.) on this charge Tiberius observes,—" The oath must be considered in no other light than it would have been had the accused called Jupiter to witness a falsehood; adding, that the injuries of the gods were for the gods to look to*."
Undoubtedly, then, in the earlier ages of Rome, perjury was punishable by the civil magistrate, as an offence against the state-f-. And the same system
* Tac. Annal., i. 73.
t From a passage in Plautus (Rudens, Act v. sc. 3), it has been conjectured, that in ancient times, the duty of punishing for perjury was imposed on the Pontifex Maximus. Gronovius denies this, and interprets the passage as referring only to the custom of the two litigant parties placing a deposit in the hand of the Pontifex, who when the suit was ended, returned to the winning party his deposit, and confiscated that of the loser. The note in the Delphin Edition (the authority for which I am not acquainted with), says plainly, that such as were guilty of perjury, if they had seems to have prevailed throughout. Calvin (of Heidelberg), after examining the various opinions on this point, comes to the conclusion that perjury was always punished in Rome, but not always in the same manner. A false witness, in a civil action, was liable both to an indictment for perjury, and also to an action for damages, at the suit of the party aggrieved*. And the degree of punishment was left very much to the discretion of the judge. Generally speaking, perjury was punished at Rome either by exile, or transportation to an island, or disfranchisement as a citizen-)->
But, however the temporal punishment of perjury varied at Rome, it is melancholy to reflect on the rapid degeneracy of the Roman people from the pre-eminent station they once maintained among the nations of the world for their honour and good faith, and the religious reverence in which the obligation of an oath was once held among them, to the lowest grade of corrupt principles, and flagitious practice, in those same points of duty. To the distinguished place which they once held
sworn by the Gods and the altars of the Gods, were punished by the Pontifex; if they had sworn by the prince, were punished by the prince; if by any other oath, they were punished by the censors. Selden thinks that perjury was seldom punished as such in early ages. B. ii, 11. * C. lib. iv., xx., 13.
t De curia submoventur. Pauli Sententiarum, lib. v., tit. 15.