Ancient Law Chapter 10

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the heavier penalties； but then it happened that the more democratic assembly， that of the Tribes， almost entirely superseded the others， and became the ordinary legislature of the later Republic.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 th

e 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 extr

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