Ancient Law by Henry Maine Chapter 10

Ancient Law
by Henry Maine

Chapter 10

The Early History of Delict and Crime

    The Teutonic Codes, including those of our Anglo-Saxon
ancestors, are the only bodies of archaic secular law which have
come down to us in such a state that we can form an exact notion
of their original dimensions. Although the extant fragments of
Roman and Hellenic codes suffice to prove to us their general
character, there does not remain enough of them for us to be
quite sure of their precise magnitude or of the proportion of
their parts to each other. But still on the whole all the known
collections of ancient law are characterised by a feature which
broadly distinguishes them from systems of mature jurisprudence.
The proportion of criminal to civil law is exceedingly different.
In the German codes, the civil part of the law has trifling
dimensions as compared with the criminal. The traditions which
speak of the sanguinary penalties inflicted by the code of Draco
seem to indicate that it had the same characteristic. In the
Twelve Tables alone, produced by a society of greater legal
genius and at first of gentler manners, the civil law has
something like its modern precedence; but the relative amount of
space given to the modes of redressing wrong, though not
enormous, appears to have been large. It may be laid down, I
think, that the more archaic the code, the fuller and the minuter
is its penal legislation. The phenomenon has often been observed,
and has been explained, no doubt to a great extent correctly, by
the Violence habitual to the communities which for the first time
reduced their laws to writing. The legislator, it is said,
proportioned the divisions of his work to the frequency of a
certain class of incidents in barbarian life. I imagine, however,
that this account is not quite complete. It should be recollected
that the comparative barrenness of civil law in archaic
collections is consistent with those other characteristics of
ancient jurisprudence which have been discussed in this treatise.
Nine-tenths of the civil part of the law practised by civilised
societies are made up of the Law of Persons, of the Law of
Property and of inheritance, and of the Law of Contract. But it
is plain that all these provinces of jurisprudence must shrink
within narrower boundaries, the nearer we make our approaches to
the infancy of social brotherhood. The Law of Persons, which is
nothing else than the Law of Status, will be restricted to the
scantiest limits as long as all forms of Status are merged in
common subjection to Paternal Power, as long as the Wife has no
rights against her Husband, the Son none against his Father; and
the infant Ward none against the Agnates who are his Guardians.
Similarly, the rules relating to Property and Succession can
never be plentiful, so long as land and goods devolve within the
family, and, if distributed at all, are distributed inside its
circle. But the greatest gap in ancient civil law will always be
caused by the absence of Contract, which some archaic codes do
not mention at all, while others significantly attest the
immaturity of the moral notions on which Contract depends by
supplying its place with an elaborate jurisprudence of Oaths.
There are no corresponding reasons for the poverty of penal law,
and accordingly, even if it be hazardous to pronounce that the
childhood of nations is always a period of ungoverned violence,
we shall still be able to understand why the modem relation of
criminal law to civil should be inverted in ancient. codes.
    I have spoken of primitive jurisprudence as giving to
criminal law a priority unknown in a later age. The expression
has been used for convenience' sake, but in fact the inspection
of ancient codes shows that the law which they exhibit in unusual
quantities is not true criminal law. All civilised systems agree
in drawing a distinction between offences against the State or
Community and offences against the Individual, and the two
classes of injuries, thus kept apart, I may here, without
pretending that the terms have always been employed consistently
in jurisprudence, call Crimes and Wrongs, crimina and delicta.
Now the penal law of ancient communities is not the law of
Crimes; it is the law of Wrongs, or, to use the English technical
word, of Torts. The person injured proceeds against the
wrong-doer by an ordinary civil action, and recovers compensation
in the shape of money-damages if he succeeds. If the Commentaries
of Gaius be opened at the place where the writer treats of the
penal jurisprudence founded on the Twelve Tables, it will be seen
that at the head of the civil wrongs recognised by the Roman law
stood Furtum or Theft. Offences which we are accustomed to regard
exclusively as crimes are exclusively treated as torts, and not
theft only, but assault and violent robbery, are associated by
the jurisconsult with trespass, libel and slander. All alike gave
rise to an Obligation or vinculum juris, and were all requited by
a payment of money. This peculiarity, however, is most strongly
brought out in the consolidated Laws of the Germanic tribes.
Without an exception, they describe an immense system of money
compensations for homicide, and with few exceptions, as large a
scheme of compensations for minor injuries. "Under Anglo-Saxon
law," writes Mr. Kemble (Anglo-Saxons, i. 177), "a sum was placed
on the life of every free man, according to his rank, and a
corresponding sum on every wound that could be inflicted on his
person, for nearly every injury that could be done to his civil
rights, honour or peace; the sum being aggravated according to
adventitious circumstances." These compositions are evidently
regarded as a valuable source of income; highly complex rules
regulate the title to them and the responsibility for them; and,
as I have already had occasion to state, they often follow a very
peculiar line of devolution, if they have not been acquitted at
the decease of the person to whom they belong. If therefore the
criterion of a delict, wrong, or tort be that the person who
suffers it, and not the State, is conceived to be wronged, it may
be asserted that in the infancy of jurisprudence the citizen
depends for protection against violence or fraud not on the Law
of Crime but on the Law of Tort.
    Torts then are copiously enlarged upon in primitive
jurisprudence. It must be added that Sins are known to it also.
Of the Teutonic codes it is almost unnecessary to make this
assertion, because those codes, in the form in which we have
received them,were compiled or recast by Christian legislators.
But it is also true that non-Christian bodies of archaic law
entail penal consequences on certain classes of acts and on
certain classes of omissions, as being violations of divine
prescriptions and commands. The law administered at Athens by the
Senate of Areopagus was probably a special religious code, and at
Rome, apparently from a very early period, the Pontifical
jurisprudence punished adultery, sacrilege and perhaps murder.
There were therefore in the Athenian and in the Roman States laws
punishing sins. There were also laws punishing torts. The
conception of offence against God produced the first class of
ordinances; the conception of offence against one's neighbour
produced the second; but the idea of offence against the State or
aggregate community did not at first produce a true criminal
jurisprudence.
    Yet it is not to be supposed that a conception so simple and
elementary as that of wrong done to the State was wanting in any
primitive society. It seems rather that the very distinctness
with which this conception is realised is the true cause which at
first prevents the growth of a criminal law At all events, when
the Roman community conceived itself to be injured, the analogy
of a personal wrong received was carried out to its consequences
with absolute literalness, and the State avenged itself by a
single act on the individual wrong-doer. The result was that, in
the infancy of the commonwealth, every offence vitally touching
its security or its interests was punished by a separate
enactment of the legislature. And this is the earliest conception
of a crimen or Crime -- an act involving such high issues that
the State, instead of leaving its cognisance to the civil
tribunal or the religious court, directed a special law or
privilegium against the perpetrator. Every indictment therefore
took the form of a bill of pains and penalties, and the trial of
a criminal was a proceeding wholly extraordinary, wholly
irregular, wholly independent of settled rules and fixed
conditions. Consequently, both for the reason that the tribunal
dispensing justice was the sovereign state itself and also for
the reason that no classification of the acts prescribed or
forbidden was possible, there was not at this epoch any Law of
crimes, any criminal jurisprudence. The procedure was identical
with the forms of passing an ordinary statute; it was set in
motion by the same persons and conducted with precisely the same
solemnities. And it is to be observed that, when a regular
criminal law with an apparatus of Courts and officers for its
administration had afterwards come into being, the old procedure,
as might be supposed from its conformity with theory, still in
strictness remained practicable; and, much as resort to such an
expedient was discredited, the people of Rome always retained the
power of punishing by a special law offences against its majesty.
The classical scholar does not require to be reminded that in
exactly the same manner the Athenian Bill of Pains and Penalties,
or, survived the establishment of regular tribunals. It is known
too that when the freemen of the Teutonic races assembled for
legislation, they also claimed authority to punish offences of
peculiar blackness or perpetrated by criminals of exalted
station. Of this nature was the criminal jurisdiction of the
Anglo-Saxon Witenagemot.
    It may be thought that the difference which I have asserted
to exist between the ancient and modern view of penal law has
only a verbal existence. The community it may be said, besides
interposing to punish crimes legislatively, has from the earliest
times interfered by its tribunals to compel the wrong doer to
compound for his wrong, and, if it does this, it must always have
supposed that in some way it was injured through his offence.
But, however rigorous this inference may seem to us now-a-days,
it is very doubtful whether it was actually drawn by the men of
primitive antiquity. How little the notion of injury to the
community had to do with the earliest interferences of the State
through its tribunals, is shown by the curious circumstances that
in the original administration of justice, the proceedings were a
close imitation of the series of acts which were likely to be
gone through in private life by persons who were disputing, but
who afterwards suffered their quarrel to be appeased. The
magistrate carefully simulated the demeanour of a private
arbitrator casually called in.
    In order to show that this statement is not a mere fanciful
conceit, I will produce the evidence on which it rests. Very far
the most ancient judicial proceeding known to us is the Legis
Actio Sacramenti of the Romans, out of which all the later Roman
Law of Actions may be proved to have grown. Gaius carefully
describes its ceremonial. Unmeaning and grotesque as it appears
at first sight, a little attention enables us to decipher and
interpret it.
    The subject of litigation is supposed to be. in Court. If it
is moveable, it is actually there. If it be immoveable, a
fragment or sample of it is brought in its place; land, for
instance, is represented by a clod, a house by a single brick. In
the example selected by Gaius, the suit is for a slave. The
proceeding begins by the plaintiff's advancing with a rod, which,
as Gaius expressly tells, symbolised a spear. He lays hold of the
slave and asserts a right to him with the words, "Hunc ego
hominem ex Jure Quiritium meum esse dico secundum suam causam
sicut dixi." and then saying, "Ecce tibi Vindictam imposui," he
touches him with the spear. The defendant goes through the same
series of acts and gestures. On this the Praetor intervenes, and
bids the litigants relax their hold, "Mittite ambo hominem." They
obey, and the plaintiff demands from the defendant the reason of
his interference, "Postulo anne dicas qua ex causa vindicaveris."
a question which is replied to by a fresh assertion of right,
"Jus peregi sicut vindictam imposui." On this, the first claimant
offers to stake a sum of money, called a Sacramentum, on the
justice of his own case, "Quando tu injuria provocasti, Daeris
Sacramento te provoco," and the defendant, in the phrase
"Similiter ego te," accepts the wager. The subsequent proceedings
were no longer of a formal kind, but it is to be observed that
the Praetor took security for the Sacramentum, which always went
into the coffers of the State.
    Such was the necessary preface of every ancient Roman suit.
It is impossible, I think, to refuse assent to the suggestion of
those who see in it a dramatisation of the Origin of Justice. Two
armed men are wrangling about some disputed property The Praetor,
vir pietate gravis, happens to be going by, and interposes to
stop the contest. The disputants state their case to him, and
agree that he shall arbitrate between them, it being arranged
that the loser, besides resigning the subject of the quarrel,
shall pay a sum of money to the umpire as remuneration for his
trouble and loss of time. This interpretation would be less
plausible than it is, were it not that, by a surprising
coincidence, the ceremony described by Gaius as the imperative
course of proceeding in a Legis Actio is substantially the same
with one of the two subjects which the God Hephaestus is
described by Homer as moulding into the First Compartment of the
Shield of Achilles. In the Homeric trial-scene, the dispute, as
if expressly intended to bring out the characteristics of
primitive society, is not about property but about the
composition for a homicide. One person asserts that he has paid
it, the other that he has never received it. The point of detail,
however, which stamps the picture as the counterpart of the
archaic Roman practice is the reward designed for the judges. Two
talents of gold lie in the middle, to be given to him who shall
explain the grounds of the decision most to the satisfaction of
the audience, The magnitude of this sum as compared with the
trifling amount of the Sacramentum seems to me indicative of the
indifference between fluctuating usage and usage consolidated
into law. The scene introduced by the poet as a striking and
characteristic, but still only occasional, feature of city-life
in the heroic age has stiffened, at the opening of the history.
of civil process, into the regular, ordinary formalities of a
lawsuit. It is natural therefore that in the Legis Actio the
remuneration of the Judge should be reduced to a reasonable sum,
and that, instead of being adjudged to one of a number of
arbitrators by popular acclamation, it should be paid as a matter
of course to the State which the Praetor represents. But that the
incidents described so vividly by homer, and by Gaius with even
more than the usual crudity of technical language, have
substantially the same meaning, I cannot doubt; and, in
confirmation of this view, it may be added that many observers of
the earliest judicial usages of modern Europe have remarked that
the fines inflicted by Courts on offenders were originally
sacramenta. The State did not take from the defendant a
composition for any wrong supposed to be done to itself, but
claimed a share in the compensation awarded to the plaintiff
simply as the fair price of its time and trouble. Mr. Kemble
expressly assigns this character to the Anglo-Saxon bannum or
fredum.
    Ancient law furnishes other proofs that the earliest
administrators of justice simulated the probable acts of persons
engaged in a private quarrel. In settling the damages to be
awarded, they took as their guide the measure of vengeance likely
to be exacted by an aggrieved person under the circumstances of
the case. This is the true explanation of the very different
penalties imposed by ancient law on offenders caught in the act
or soon after it and on offenders detected after considerable
delay some strange exemplifications of this peculiarity are
supplied by the old Roman law of Theft. The Laws of the Twelve
Tables seem to have divided Thefts into Manifest and
Non-Manifest, and to have allotted. extraordinarily different
penalties to the offence according as it fell under one head or
the other. The Manifest Thief was he who was caught within the
house in which he had been pilfering, or who was taken while
making off to a place of safety with the stolen goods; the Twelve
Tables condemned him to be put to death if he were already a
slave, and, if he was a freeman, they made him the bondsman of
the owner of the property. The Non-Manifest Thief was he who was
detected under any other circumstances than those described; and
the old code simply directed that an offender of this sort should
refund double the value of what he had stolen. In Gaius's day the
excessive severity of the Twelve Tables to the Manifest Thief had
naturally been much mitigated, but the law still maintained the
old principle by mulcting him in fourfold the value of the stolen
goods, while the Non-Manifest Thief still continued to pay merely
the double. The ancient lawgiver doubtless considered that the
injured proprietor, if left to himself, would inflict a very
different punishment when his blood was hot from that with which
he would be satisfied when the Thief was detected after a
considerable interval; and to this calculation the legal scale of
penalties was adjusted. The principle is precisely the same as
that followed in the Anglo-Saxon and other Germanic codes, when
they suffer a thief chased down and caught with the booty to be
hanged or decapitated on the spot, while they exact the full
penalties of homicide from anybody who kills him after the
pursuit has been intermitted. These archaic distinctions bring
home to us very forcibly the distance of a refined from a rude
jurisprudence. The modem administrator of justice has confessedly
one of the hardest tasks before him when he undertakes to
discriminate between the degrees of criminality which belong to
offences falling within the same technical description. It is
always easy to say that a man is guilty of manslaughter, larceny,
or bigamy, but it is often most difficult to pronounce what
extent of moral guilt he has incurred, and consequently what
measure of punishment he has deserved. There is hardly any
perplexity in casuistry, or in the analysis of motive, which we
may not be called upon to confront, if we attempt to settle such
a point with precision; and accordingly the law of our day shows
an increasing tendency to abstain as much as possible from laying
down positive rules on the subject. In France, the jury is left
to decide whether the offence which it finds committed has been
attended by extenuating circumstances; in England, a nearly
unbounded latitude in the selection of punishments is now allowed
to the judge; while all States have in reserve an ultimate remedy
for the miscarriages of law in the Prerogative of Pardon,
universally lodged with the Chief Magistrate. It is curious to
observe how little the men of primitive times were troubled with
these scruples, how completely they were persuaded that the
impulses of the injured person were the proper measure of the
vengeance he was entitled to exact, and how literally they
imitated the probable rise and fall of his passions in fixing
their scale of punishment. I wish it could be said that their
method of legislation is quite extinct. There are, however,
several modern systems of law which, in cases of graver wrong,
admit the fact of the wrong doer leaving been taken in the act to
be pleaded in justification of inordinate punishment inflicted on
them by the sufferer-an indulgence which, though superficially
regarded it may seem intelligible, is based, as it seems to me,
on a very low morality.
    Nothing, I have said, can be simpler than the considerations
which ultimately led ancient societies to the formation of a true
criminal jurisprudence. The State conceived itself to be wronged,
and the Popular Assembly struck straight at the offender with the
same movement which accompanied its legislative action. it is
further true of the ancient world though not precisely of the
modern, as I shall have occasion to point out -- that the
earliest criminal tribunals were merely subdivisions, or
committees, of the legislature. This, at all events, is the
conclusion pointed at by the legal history of the two great
states of antiquity, with tolerable clearness in one case, and
with absolute distinctness in the other. The primitive penal law
of Athens entrusted the castigation of offences partly to the
Archons, who seem to have punished them as torts, and partly to
the Senate of Areopagus, which punished them as sins. Both
jurisdictions were substantially transferred in the end to the
Heliaea, the High Court of Popular Justice, and the functions of
the Archons and of the Areopagus became either merely ministerial
or quite insignificant. But "Heliaea" is only an old word for
Assembly; the Heliaea of classical times was simply the Popular
Assembly convened for judicial purposes, and the famous
Dikasteries of Athens were only its subdivisions or panels. The
corresponding changes which occurred at Rome are still more
easily interpreted, because the Romans confined their experiments
to the penal law, and did not, like the Athenians, construct
popular courts with a civil as well as a criminal jurisdiction.
The history of Roman criminal jurisprudence begins with the old
Judicia Populi, at which the Kings are said to have presided.
These were simply solemn trials of great offenders under
legislative forms. It seems, however that from an early period
the Comitia had occasionally delegated its criminal jurisdiction
to a Quaestio or Commission, which bore much the same relation to
the Assembly as a Committee of the House of Commons bears to the
House itself, except that the Roman Commissioners or Quaestores
did not merely report to the Comitia, but exercised all powers
which that body was itself in the habit of exercising, even to
the passing sentence on the Accused. A Quaestio of this sort was
only appointed to try a particular offender, but there was
nothing to prevent two or three Quaestiones sitting at the same
time; and it is probable that several of them were appointed
simultaneously, when several grave cases of wrong to the
community had occurred together. There are also indications that
now and then these Quaestiones approached the character of our
Standing Committees, in that they were appointed periodically,
and without waiting for occasion to arise in the commission of
some serious crime. The old Quaestores Parricidii, who are
mentioned in connection with transactions of very ancient date,
as being deputed to try (or, as some take it, to search out and
try) all cases of paricide and murder, seem to have been
appointed regularly every year; and the Duumviri Perduellionis,
or Commission of Two for trial of violent injury to the
Commonwealth, are also believed by most writers to have been
named periodically. The delegations of power to these latter
functionaries bring us some way forwards. instead of being
appointed when and as state-offences were committed, they had a
general, though a temporary jurisdiction over such as might be
perpetrated. Our proximity to a regular criminal jurisprudence is
also indicated by the general terms "Parricidium" and
"Perduellio" which mark the approach to something like a
classification of crimes.
    The true criminal law did not however come into existence
till the year B.C. 149, when L. Calpurnius Piso carried the
statute known as the Lex Calpurnia de Repetundis. The law applied
to cases Repetundarum Pecuniarum, that is, claims by Provincials
to recover monies improperly received by a Governor-General, but
the great and permanent importance of this statute arose from its
establishing the first Quaestio Perpetua. A Quaestio Perpetua was
a Permanent Commission as opposed to those which were occasional
and to those which were temporary. It was a regular criminal
tribunal whose existence dated from the passing of the statute
creating it and continued till another statute should pass
abolishing it. Its members were not specially nominated, as were
the members of the older Quaestiones, but provision was made in
the law constituting it for selecting from particular classes the
judges who were to officiate, and for renewing them in conformity
with definite rules. The offences of which it took cognisance
were also expressly named and defined in this statute, and the
new Quaestio had authority to try and sentence all persons in
future whose acts should fall under the definitions of crime
supplied by the law. It was therefore a regular criminal
judicature, administering a true criminal jurisprudence.
    The primitive history of criminal law divides itself
therefore into four stages. Understanding that the conception of
Crime, as distinguished from that of Wrong or Tort and from that
of Sin, involves the idea of injury to the State or collective
community, we first find that the commonwealth, in literal
conformity with the conception, itself interposed directly, and
by isolated acts, to avenge itself on the author of the evil
which it had suffered. This is the point from which we start;
each indictment is now a bill of pains and penalties, a special
law naming the criminal and prescribing his punishment. A second
step is accomplished, when the multiplicity of crimes compels the
legislature to delegate its powers to particular Quaestiones or
Commissions, each of which is deputed to investigate a particular
accusation, and if it be proved, to punish the particular
offender. Yet another movement is made when the legislature,
instead of waiting for the alleged commission of a crime as the
occasion of appointing a Quaestio, periodically nominates
Commissioners like the Quaestores Parricidii and the Duumviri
Perduellionis, on the chance of certain classes of crimes being
committed, and in the expectation that they will be perpetrated.
The last stage is reached when the Quaestiones from being
periodical or occasional become permanent Benches or
Chambers-when the judges, instead of being named in the
particular law nominating the Commission, are directed to be
chosen through all future time in a particular way and from a
particular class and when certain acts are described in general
language and declared to be crimes, to be visited, in the event
of their perpetration, with specified penalties appropriated to
each description.
    If the Quaestiones Perpetuae had had a longer history, they
would doubtless have come to be regarded as a distinct
institution, and their relation to the Comitia would have seemed
no closer than the connection of our own Courts of Law with the
Sovereign, who is theoretically the fountain of justice. But the
imperial despotism destroyed them before their origin had been
completely forgotten, and, so long as they lasted, these
Permanent Commissions were looked upon by the Romans as the mere
depositaries of a delegated power. The cognisance of crimes was
considered a natural attribute of the legislature, and the mind
of the citizen never ceased to be carried back from the
Quaestiones, to the Comitia which had deputed them to put into
exercise some of its own inalienable functions. The view which
regarded the Quaestiones, even when they became permanent, as
mere Committees of the Popular Assembly -- as bodies which only
ministered to a higher authority -- had some important legal
consequences which left their mark on the criminal law to the
very latest period. One immediate result was that the Comitia
continued to exercise criminal jurisdiction by way of bill of
pains and penalties, long after the Quaestiones had been
established. Though the legislature had consented to delegate its
powers for the sake of convenience to bodies external to itself,
it did not follow that it surrendered them. The Comitia and the
Quaestiones went on trying and punishing offenders side by side;
and any unusual outburst of popular indignation was sure, until
the extinction of the Republic, to call down upon its object an
indictment before the Assembly of the Tribes.
    One of the most remarkable peculiarities of the institutions
of the Republic is also traceable to this dependance of the
Quaestiones on the Comitia. The disappearance of the punishment
of death from the penal system of Republican Rome used to be a
very favourite topic with the writers of the last century, who
were perpetually using it to point some theory of the Roman
character or of modem social economy The reason which can be
confidently assigned for it stamps it as purely fortuitous. Of
the three forms which the Roman legislature successively assumed,
one, it is well known-the Comitia Centuriata -- was exclusively
taken to represent the State as embodied for military operations.
The Assembly of the Centuries, therefore, had all powers which
may be supposed to be properly lodged with a General commanding
an army, and, among them, it had authority to subject all
offenders to the same correction to which a soldier rendered
himself liable by breaches of discipline. The Comitia Centuriata
could therefore inflict capital punishment. Not so, however, the
Comitia Curiata or Comitia Tributa, They were fettered on this
point by the sacredness with which the person of a Roman citizen,
inside the walls of the city, was invested by religion and law;
and, with respect to the last of them, the Comitia Tributa, we
know for certain that it became a fixed principle that the
Assembly of the Tribes could at most impose a fine. So long as
criminal jurisdiction was confined to the legislature, and so
long as the assemblies of the centuries and of the Tribes
continued to exercise co-ordinate powers, it was easy to prefer
indictments for graver crimes before the legislative body which
dispensed the heavier penalties; but then it happened that the
more democratic assembly, that of the Tribes, almost entirely
superseded the others, and became the ordinary legislature of the
later Republic. Now the decline of the Republic was exactly the
period during which the Quaestiones Perpetuae were established,
so that the statutes creating them were all passed by a
legislative assembly which itself could not, at its ordinary
sittings, punish a criminal with death. It followed that the
Permanent judicial Commissions, holding a delegated authority,
were circumscribed in their attributes and capacities by the
limits of the powers residing with the body which deputed them.
They could do nothing which the Assembly of the Tribes could not
have done; and, as the Assembly could not sentence to death, the
Quaestiones were equally incompetent to award capital punishment.
The anomaly thus resulting was not viewed in ancient times with
anything like the favour which it has attracted among the
moderns, and indeed, while it is questionable whether the Roman
character was at all the better for it, it is certain that the
Roman Constitution was a great deal the worse. Like every other
institution which has accompanied the human race down the current
of its history, the punishment of death is a necessity of society
in certain stages of the civilising process. There is a time when
the attempt to dispense with it baulks both of the two great
instincts which lie at the root of all penal law. Without it, the
community neither feels that it is sufficiently revenged on the
criminal, nor thinks that the example of his punishment is
adequate to deter others from imitating him. The incompetence of
the Roman Tribunals to pass sentence of death led distinctly and
directly to those frightful Revolutionary intervals, known as the
Proscriptions, during which all law was formally suspended simply
because party violence could find no other avenue to the
vengeance for which it was thirsting. No cause contributed so
powerfully to the decay of political capacity in the Roman people
as this periodical abeyance of the laws; and, when it had once
been resorted to, we need not hesitate to assert that the ruin of
Roman liberty became merely a question of time. If the practice
of the Tribunals had afforded an adequate vent for popular
passion, the forms of judiciAl procedure would no doubt have been
as flagrantly perverted as with us in the reigns of the later
Stuarts, but national character would not have suffered as deeply
as it did, nor would the stability of Roman institutions have
been as seriously enfeebled.
    I will mention two more singularities of the Roman Criminal
System which were produced by the same theory of judicial
authority. They are, the extreme multiplicity of the Roman
criminal tribunals, and the capricious and anomalous
classification of crimes which characterised Roman penal
jurisprudence throughout its entire history. Every Quaestio, it
has been said, whether Perpetual or otherwise, had its origin in
a distinct statute. From the law which created it, it derived its
authority; it rigorously observed the limits which its charter
prescribed to it, and touched no form of criminality which that
charter did not expressly define. As then the statutes which
constituted the various Quaestiones were all called forth by
particular emergencies, each of them being in fact passed to
punish a class of acts which the circumstances of the time
rendered particularly odious or particularly dangerous, these
enactments made not the slightest reference to each other, and
were connected by no common principle. Twenty or thirty different
criminal laws were in existence together, with exactly the same
number of Quaestiones to administer them; nor was any attempt
made during the Republic to fuse these distinct judicial bodies
into one, or to give symmetry to the provisions of the statutes
which appointed them and defined their duties. The state of the
Roman criminal jurisdiction at this period, exhibited some
resemblances to the administration of civil remedies in England
at the time when the English Courts of Common Law had not as yet
introduced those fictitious averments into their writs which
enabled them to trespass on each other's peculiar province. Like
the Quaestiones, the Courts of Queen's Bench, Common Pleas, and
Exchequer were all theoretical emanations from a higher
authority, and each entertained a special class of cases supposed
to be committed to it by the fountain of its jurisdiction; but
then the Roman Quaestiones were many more than three in number,
and it was infinitely less easy to discriminate the acts which
fell under the cognisance of each Quaestio, than to distinguish
between the provinces of the three Courts in Westminster Hall.
The difficulty of drawing exact lines between the spheres of the
different Quaestiones made the multiplicity of Roman tribunals
something more than a mere inconvenience; for we read with
astonishment that when it was not immediately clear under what
general description a man's alleged offences ranged themselves,
he might be indicted at once or successively before several
different Commissions, on the chance of some one of them
declaring itself competent to convict him; and, although
conviction by one Quaestio ousted the jurisdiction of the rest,
acquittal by one of them could not be pleaded to an accusation
before another. This was directly contrary to the rule of the
Roman civil law; and we may be sure that a people so sensitive as
the Romans to anomalies (or, as their significant phrase was, to
inelegancies) in jurisprudence, would not long have tolerated it,
had not the melancholy history of the Quaestiones caused them to
be regarded much more as temporary weapons in the hands of
factions than as permanent institutions for the correction of
crime. The Emperors soon abolished this multiplicity and conflict
of jurisdiction; but it is remarkable that they did not remove
another singularity of the criminal law which stands in close
connection with the number of the Courts. The classifications of
crimes which are contained even in the Corpus Juris of Justinian
are remarkably capricious. Each Quaestio had, in fact, confined
itself to the crimes committed to its cognisance by its charter.
These crimes, however, were only classed together in the original
statute because they happened to call simultaneously for
castigation at the moment of passing it. They had not therefore
anything necessarily in common; but the fact of their
constituting the particular subject-matter of trials before a
particular Quaestio impressed itself naturally on the public
attention, and so inveterate did the association become between
the offences mentioned in the same statute that, even when formal
attempts were made by Sylla and by the Emperor Augustus to
consolidate the Roman criminal law the legislator preserved the
old grouping. The Statutes of Sylla and Augustus were the
foundation of the penal jurisprudence of the Empire, and nothing
can be more extraordinary than some of the classifications which
they bequeathed to it. I need only give a single example in the
fact that perjury was always classed with cutting and wounding
and with poisoning, no doubt because a law of Sylla, the Lex
Cornelia de Sicariis et Veneficis, had given jurisdiction over
all these three forms of crime to the same Permanent Commission.
It seems too that this capricious grouping of crimes affected the
vernacular speech of the Romans. People naturally fell into the
habit of designating all the offences enumerated in one law by
the first name on the list, which doubtless gave its style to the
Law Court deputed to try them all. All the offences tried by the
Quaestio De Adulteriis would thus be called Adultery.
    I have dwelt on the history and characteristics of the Roman
Quaestiones because the formation of a criminal jurisprudence is
nowhere else so instructively exemplified. The last Quaestiones
were added by the Emperor Augustus, and from that time the Romans
may be said to have had a tolerably complete criminal law.
Concurrently with its growth, the analogous process had gone on,
which I have called the conversion of Wrongs into Crimes, for
though the Roman legislature did not extinguish the civil, remedy
for the more heinous offences, it offered the sufferer a redress
which he was sure to prefer. Still, even after Augustus had
completed his legislation, several offences continued to be
regarded as Wrongs, which modern societies look upon exclusively
as Crimes; nor did they become criminally punishable till some
late but uncertain date, at which the law began to take notice of
a new description of offences called in the Digest crimina
extraordinaria. These were doubtless a class of acts which the
theory of Roman jurisprudence treated merely as wrongs; but the
growing sense of the majesty of society revolted from their
entailing nothing worse on their perpetrator than the payment of
money damages, and accordingly the injured person seems to have
been permitted, if he pleased, to pursue them as crimes extra
ordinem, that is by a mode of redress departing in some respect
or other from the ordinary procedure. From this period at which
these crimina extraordinaria were first recognised, the list of
crimes in the Roman State must have been as long as in any
community of the modern world.
    It is unnecessary to describe with any minuteness the mode of
administering criminal justice under the Roman Empire, but it is
to be noted that both its theory and practice have had powerful
effect on modern society. The Emperors did not immediately
abolish the Quaestiones, and at first they committed an extensive
criminal jurisdiction to the Senate, in which, however servile it
might show itself in fact, the Emperor was no more nominally.
than a Senator like the rest. But some sort of collateral
criminal jurisdiction had been claimed by the Prince from the
first; and this, as recollections of the free commonwealth
decayed, tended steadily to gain at the expense of the old
tribunals. Gradually the punishment of crimes was transferred to
magistrates directly nominated by the Emperor and the privileges
of the Senate passed to the Imperial Privy Council, which also
became a Court of ultimate criminal appeal. Under these
influences the doctrine, familiar to the moderns, insensibly
shaped itself that the Sovereign is the fountain of all Justice
and the depositary of all Grace. It was not so much the fruit of
increasing adulation and servility as of the centralisation of
the Empire which had by this time perfected itself. The theory of
criminal justice had, in fact, worked round almost to the point
from which it started. It had begun in the belief that it was the
business of the collective community to avenge its own wrongs by
its own hand; and it ended in the doctrine that the chastisement
of crimes belonged in an especial manner to the Sovereign as
representative and mandatary of his people. The new view differed
from the old one chiefly in the air of awfulness and majesty
which the guardianship of justice appeared to throw around the
person of the Sovereign.
    This later Roman view of the Sovereign's relation to justice
certainly assisted in saving modern societies from the necessity
of travelling through the series of changes which I have
illustrated by the history of the Quaestiones. In the primitive
law of almost all the races which have peopled Western Europe
there are vestiges of the archaic notion that the punishment of
crimes belongs to the general assembly of freemen; and there are
some States -- Scotland is said to be one of them -- in which the
parentage of the existing judicature can be traced up to a
Committee of the legislative body. But the development of the
criminal law was universally hastened by two causes, the memory
of the Roman Empire and the influence of the Church. On the one
hand traditions of the majesty of the Caesars, perpetuated by the
temporary ascendency of the House of Charlemagne, were
surrounding Sovereigns with a prestige which a mere barbarous
chieftain could never otherwise have acquired and were
communicating to the pettiest feudal potentate the character of
guardian of society and representative of the State. On the other
hand, the Church, in its anxiety to put a curb on sanguinary
ferocity, sought about for authority to punish the graver
misdeeds, and found it in those passages of Scripture which speak
with approval of the powers of punishment committed to the civil
magistrate. The New Testament was appealed to as proving that
secular rulers exist for the terror of evildoers; the Old
Testament, as laying down that "Whoso sheddeth man's blood, by
man shall his blood be shed." There can be no doubt, I imagine,
that modern ideas on the subject of crime are based upon two
assumptions contended for by the Church in the Dark Ages-first,
that each feudal ruler, in his degree, might be assimilated to
the Roman Magistrates spoken of by Saint Paul; and next, that the
offences which he was to chastise were those selected for
prohibition in the Mosaic Commandments, or rather such of them as
the Church did not reserve to her own cognisance. Heresy
(supposed to be included in the First and Second Commandments),
Adultery, and Perjury were ecclesiastical offences, and the
Church only admitted the co-operation of the secular arm for the
purpose of inflicting severer punishment in cases of
extraordinary aggravation. At the same time, she taught that
murder and robbery with their various modifications were under
the jurisdiction of civil rulers, not as an accident of their
position but by the express ordinance of God.
    There is a passage in the writings of King Alfred (Kemble,
ii. 209) which brings out into remarkable clearness the struggle
of the various ideas that prevailed in his day as to the origin
of criminal jurisdiction. It will be seen that Alfred attributes
it partly to the authority of the Church and partly to that of
the Witan, while he expressly claims for treason against the lord
the same immunity from ordinary rules which the Roman Law of
Majestas had assigned to treason against the Caesar. "After this
it happened," he writes, "that many nations received the faith of
Christ, and there were many synods assembled throughout the
earth, and among the English race also after they had received
the faith of Christ, both of holy bishops and of their exalted
Witan. They then ordained that, out of that mercy which Christ
had taught, secular lords, with their leave, might without sin
take for every misdeed the bot in money which they ordained;
except in cases of treason against a lord, to which they dared
not assign any mercy because Almighty God adjudged none to them
that despised Him, nor did Christ adjudge any to them which sold
Him to death; and He commanded that a lord should be loved like
Himself."