The first imperfect attempt to restore the proportion of crimes and punishments was made by the dictator Sylla, who, in the midst of his sanguinary triumph, aspired to restrain the license rather than to oppress the liberty of the Romans.  He gloried 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 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