in the arbitrary
proscription of four thousand seven hundred citizens. But in the
character of a legislator he respected the prejudices of the times; and
instead of pronouncing a sentence of death against the robber or
assassin, the general who betrayed an army, or the magistrate who ruined
a province, Sylla was content to aggravate the pecuniary damages by the
penalty of exile, or, in more constitutional language, by the
interdiction of fire and water. The Cornelian and afterward the Pompeian
and Julian laws introduced a new system of criminal jurisprudence; and
the emperors, from Augustus to Justinian, disguised their increasing
rigor under the names of the original authors.

But the invention and frequent use of _extraordinary pains_ proceeded
from the desire to extend and conceal the progress of despotism. In the
condemnation of illustrious Romans the senate was always prepared to
confound, at the will of their masters, the judicial and legislative
powers. It was the duty of the governors to maintain the peace of their
province by the arbitrary and rigid administration of justice; the
freedom of the city evaporated in the extent of empire, and the Spanish
malefactor, who claimed the privilege of a Roman, was elevated by the
command of Galba on a fairer and more lofty cross. Occasional rescripts
issued from the throne to decide the questions which, by their novelty
or importance, appeared to surpass the authority and discernment of a
proconsul. Transportation and beheading were reserved for honorable
persons; meaner criminals were either hanged, or burned, or buried in
the mines, or exposed to the wild beasts of the amphitheatre. Armed
robbers were pursued and extirpated as the enemies of society; the
driving away of horses or cattle was made a capital offence, but simple
theft was uniformly considered as a mere civil and private injury. The
degrees of guilt and the modes of punishment were too often determined
by the discretion of the rulers, and the subject was left in ignorance
of the legal danger which he might incur by every action of his life.

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