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Home -> Henry Sumner Maine, Sir -> Ancient Law -> CHAPTER X

Ancient Law - CHAPTER X






6. CHAPTER V continue


8. CHAPTER VI continue



11. CHAPTER VIII continue


13. CHAPTER IX continue




THE Teutonic Codes, including those of our Anglo-
Saxon ancestors, are the only bodies of archfeic
secular law which have come down to us in sucli a
state that we can form an exact notion of their
original dimensions. Although the extant frag-
ments 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 dis-
tinguishes them from systems of mature juris-
prudence. The proportion of criminal to civil
law is exceedingly different. In the German
codes, the civil part of the law has trifling dimen-
sions as compared with the criminal. The trdi-
tions 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 bar-
barian 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- Pro-
perty 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 &i\l
be able to understand why the modern 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 1 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 juris-
prudence, call Crimes and Wrongs, crimina and
delicta. Now the penal Law of ancient com-
munities 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
vincylum 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 ex-
ceptions, as large a scheme of compensation 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 circum-
stances." These compositions are evidently re-
garded 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 juris-
prudence 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 cpdes
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 pre-
scriptions 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 juris-
prudence 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 con-
ception of offence against God produced the first
class or ordinances ; the conception of offence
against one's neighbour produced the seqpnd ;
but the idea of offence against the State or aggre-
gate community did not at first produce a true
criminal j urisprudence .

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 legis-
lature. And this is the earliest conception of a
crimen or Crime an act involving such high
issues that the State, instead of leaving its cognis-
ance 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 extra-
ordinary, wholly irregular, wholly independent
of settled rules and fixed conditions. Conse-
quently, 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,
anycriminal 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 eicrayycAta,
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 peouliar
blackness or perpetrated by criminals of exdlted
station. Of this nature was the criminal juris-
diction 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 exist-
ence. 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 nowadays, 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 inter-
ferences 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 cere-
monipd. 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 movable, it is actually there. If
it be immovable, a fragment or sample of it is
brought in its place ; land, for instance, is repre-
sented 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, sym-
bolised 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 secun-
dum 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 quci
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 Sacra-
mentum, on the justice of his own case, " Quando
tu injurid provocasti, D ceris Sacramento teprovoco"
and the defendant, in the phrase, " Similiter ego
te" accepts the wager. The subsequent proceed-
ings 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 sur-
prising 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 Sacra-
mentum seems to me indicative of the difference
between fluctuating usage and usage consolidated
into p Law. The scene introduced by the poet as a
striking and characteristic, but still only occa-
sional, 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 an 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 suppo'sed
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 unHer
the circumstances of the case. This is the true
explanation of the very different penalties imppsed
by ancient law on offenders caught in the *act
or soon after it and on offenders detected after
considerable delay. Some strange exemplifica-
tions 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 extra-
ordinarily different penalties to the offence accord-
ing 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 were 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 de-
scribed ; and the old code simply directed that
an pffender 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
thgjt 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 modern administrator of justice has con-
fessedly one of his 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 man-
slaughter, 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 Pre-
rogative 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 wWe
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 having been taken in the act to
be pleaded in justification of inordinate punish-
ment inflicted on him by the sufferer an indul-
gence which, though superficially regarded it may
seem intelligible, i 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 socie-
ties to the formation of a true criminal jurispru-
dence. The State conceived itself to be wronged,
and. the Popular Assembly struck straight at the
offender with the same movement which accom-
panied its legislative action. It is further true
of the ancient world though not precisely of the
modem, 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 intrusted 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 which 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 ap-
pointed 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 parricide and murder, seem to have been
appointed regularly every year ; and the Duum-
viri 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.
AjQuaestio 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 juris-

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 collec-
tive community, we first find that the common-


wealth, 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 parti-
cular 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

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 com-
pletely forgotten, and so long as they lasted,
these permanent Commissions were looked upon
b'y the Romans as the mere depositaries of a
delegated power. The cognisance of crimes was
considered a natural attribute of the legislature,
ahd 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 minis-
tered 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 bills
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 extinc-
tion of the Republic, to call down upon its object
an indictment before the Assembly of the Tribes-
One of the most remarkable peculiarities oi
the institutions of the Republic is also traceable


to this dependence 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 modern 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 Comit'ia
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 ; aijd,
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
itsordinary sittings, punish a criminal with death.
It* followed that the Permanent Judicial Com-
missions, 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 Proscrip-
tions, 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 anoma-
lous classification of crimes which characterised
Roman penal jurisprudence throughout its entire
history. Every Quastio, 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
lav^s were in existence together, with exactly
th 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 resem-
blances 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 theo-
retical 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 Commis-
sions, 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 Jaw ; and we may be sure that a people so
sensitive as the Romans to anomalies (or, as their
significant phrase was, to inelegancies) in juris-
prudence, would not long have tolerated it, had
not the melancholy history of the Qusestiones
caused them to be regarded much more as tem-
porary weapons in the hands of factions than
as permanent institutions for the correction of
crime. The Emperors soon abolished this multi-
plicity and conflict of jurisdiction ; but it is
remarkable that they did not remove another
singularity of the criminal law which stands f in
close connection with the number of the Courts.
The classifications of crimes which are contained
even in the Corpus Juris of Justinian are remark-
ably 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
mode 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

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 Wroijgs,
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 the period at which these crimina extra-
ordinaria 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 minute-
ness 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 collec-
tive community to avenge its own wrongs by its
owfi hand ; and it ended in the doctrine that the
chastisement of crimes belonged in an especial
manner to the Sovereign as representative and
mandatory of his people. The new view differed
from the old one chiefly in the air of awfulpess
and majesty which the guardianship of justice
appeared to throw around the person of the

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 illus-
trated 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, perpetu-
ated by the temporary ascendancy 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 repre-
sentative 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 evil-doers ; 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 assimi-
lated to the Roman Magistrates spoken of by
Saint Paul ; and next, that the offences which
he was to chastise were those selected for pro-
hibition 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 modi-
fications, 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 hap-
pened," 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 lot 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

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