Ancient Law Chapter 10

a 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.

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