Ancient Law Chapter 10

robable 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 beca

me 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

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