Page:Decline and Fall of the Roman Empire vol 5 (1897).djvu/551

 APPENDIX 529 is at first disposed to denounce it as horribly barbaric. Its distinguishing feature is the use of mutilation as a mode of punishment — a penalty unknown in Roman law. The principle of mutilation was founded on Holy Scripture (see St. Matthew, v., 29, 30: If thine eye offend thee, &c.). Since mutilation was generally ordained in cases where the penalty had formerly been death, the law- givers could certainly claim that their code was more lenient. The penalty of confiscation of property almost entirely disappears. The following table of penalties will exhibit the spirit of the Christian legislation : — Perjury : amputation of the tongue (yooa(roKOTre7ffdai). High treason : death. Theft : for the first offence : if solvent, payment of double the value of the thing stolen ; if insolvent, flogging and banishment. ,, for the second offence : amputation of the hand. Psederasty : death. Bestiality : amputation of the offending member {KavoKOTTf7(rdai). Fornication : — (1) with persons within the forbidden degrees : amputation of the hand (for both) ; (2) when the act involves a further wrong, e.g. : — (a) with a nun (a wrong being done thereby to the Church) : amputa- tion of the nose (for both) ; (6) with a maiden : the man, if he refuses to marry her, pays a fine if he has property, but if he is penniless, is whipped, tonsured, and banished ; (c) if the maiden was betrothed to another : amputation of the nose ; (d) rape : amputation of the nose (and, if the victim was under thirteen years of age, the ravisher had to pay her half his property, besides losing his nose) ; (e) of a man with a m.arried woman : amputation of the nose (for both) ; (3) (a) of a married man with an unmarried woman : whipping ; (6) of an unmarried man with an unmarried woman : lighter whipping ; but in these cases the women were not punished, according to the law of the Ecloga. For murder the penalty was death. But, while the Justinianean law excluded murderers, ravishers, and adulterers from the asylum privileges secured to those who took refuge in churches, the Ecloga does not make this exception ; and, though the enactments of the Basilica follow Justinian, practice seems in the meantime to have secured for murderers the right of asylum, which was definitel}- recog- nised by Constantine VII. A novel of this Emperor enacts that a murderer who takes refuge in a church shall do penance according to the canon law, shall then be banished for life from the place where the crime was perpetrated, shall become incapable of holding office ; and, if the murder was committed with full pre- meditation, shall be tonsured and thrust into a monastery. His property shall be divided ; one part going to the heirs of the murdered man, another to his own relatives, and in case he becomes a monk of his own free will, a portion shall be reserved for the monastic community which receives him. This enactment must have enabled most murderers to escape the capital penalty. In general we can see that the tendency of the Ecloga was to avoid capital punishment so far as possible, and this tendency increased as time went on. Gibbon mentions the fact that under John Comnenus capital punishment was never inflicted (the authority is Nicetas) ; but this must not be interpreted in the sense that the death penaltj^ was formally abolished, but rather taken as a striking illustration of the tendency of the B3'zantine spirit in that direction. We may question whether this tendency was due so much to the growth of feelings of humanity as to ecclesiastical motives, namely the active maintenance of the asylum privileges of Christian sanctuaries, and the doctrine of repentance. The mutilation punishments at least are discordant with our notions of humane legis- lation. Zacharia von Lingenthal expresses his opinion that the cruelties practised VOL. V. 34