Ancient Law Part 7

[5] The pa.s.sage quoted is transcribed with slight alterations from a paper contributed by the author to the _Cambridge Essays_ for 1856.

[6] _Cambridge Essays_, 1856.

CHAPTER X

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 h.e.l.lenic 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 s.p.a.ce 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 cla.s.s 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 p.r.o.nounce that the childhood of nations is always a period of ungoverned violence, we shall still 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' sake, but in fact the inspection of ancient codes shows that the law which they exhibit in unusual quant.i.ties 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 cla.s.ses 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 a.s.sault and violent robbery, are a.s.sociated by the jurisconsult with trespa.s.s, 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 advent.i.tious circ.u.mstances." These compositions are evidently regarded as a valuable source of income; highly complex rules regulate the t.i.tle 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 a.s.serted 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 a.s.sertion, 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 cla.s.ses of acts and on certain cla.s.ses 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 punis.h.i.+ng _sins_. There were also laws punis.h.i.+ng _torts_. The conception of offence against G.o.d produced the first cla.s.s 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 a.n.a.logy 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 cla.s.sification 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 pa.s.sing 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 punis.h.i.+ng by a special law offences against its majesty. The cla.s.sical scholar does not require to be reminded that in exactly the same manner the Athenian Bill of Pains and Penalties, or [Greek: eisangelia], survived the establishment of regular tribunals. It is known too that when the freemen of the Teutonic races a.s.sembled 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 a.s.serted 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 circ.u.mstances 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 a.s.serts 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, "_Mitt.i.te 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 a.s.sertion 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, D aeris 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 a.s.sent 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 G.o.d Hephaestus is described by Homer as moulding into the First Compartment of the s.h.i.+eld 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 a.s.serts 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 a.s.signs 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 circ.u.mstances 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 circ.u.mstances 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 modern 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 p.r.o.nounce 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 a.n.a.lysis 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 circ.u.mstances; in England, a nearly unbounded lat.i.tude 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 ent.i.tled to exact, and how literally they imitated the probable rise and fall of his pa.s.sions 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 punishment inflicted on him 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 a.s.sembly 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 a.s.sembly; the Heliaea of cla.s.sical times was simply the Popular a.s.sembly 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 a.s.sembly 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 pa.s.sing 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 parricide 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 cla.s.sification 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 establis.h.i.+ng 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 pa.s.sing of the statute creating it and continued till another statute should pa.s.s abolis.h.i.+ng it. Its members were not specially nominated, as were the members of the older Quaestiones, but provision was made in the law const.i.tuting it for selecting from particular cla.s.ses 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 cla.s.ses 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 cla.s.s--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 inst.i.tution, 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 a.s.sembly--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 punis.h.i.+ng 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 a.s.sembly of the Tribes.

One of the most remarkable peculiarities of the inst.i.tutions 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 modern social economy. The reason which can be confidently a.s.signed for it stamps it as purely fortuitous. Of the three forms which the Roman legislature successively a.s.sumed, one, it is well known--the Comitia Centuriata--was exclusively taken to represent the State as embodied for military operations. The a.s.sembly 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 a.s.sembly of the Tribes could at most impose a fine. So long as criminal jurisdiction was confined to the legislature, and so long as the a.s.semblies 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 a.s.sembly, 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 pa.s.sed by a legislative a.s.sembly 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 circ.u.mscribed in their attributes and capacities by the limits of the powers residing with the body which deputed them.

They could do nothing which the a.s.sembly of the Tribes could not have done; and, as the a.s.sembly 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 Const.i.tution was a great deal the worse. Like every other inst.i.tution 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 pa.s.s 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 a.s.sert 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 pa.s.sion, 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 inst.i.tutions 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 cla.s.sification 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 const.i.tuted the various Quaestiones were all called forth by particular emergencies, each of them being in fact pa.s.sed to punish a cla.s.s of acts which the circ.u.mstances 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 fict.i.tious averments into their writs which enabled them to trespa.s.s 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 cla.s.s 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 inst.i.tutions 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 cla.s.sifications 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 cla.s.sed together in the original statute because they happened to call simultaneously for castigation at the moment of pa.s.sing it. They had not therefore anything necessarily in common; but the fact of their const.i.tuting the particular subject-matter of trials before a particular Quaestio impressed itself naturally on the public attention, and so inveterate did the a.s.sociation 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 cla.s.sifications which they bequeathed to it. I need only give a single example in the fact that _perjury_ was always cla.s.sed 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 a.n.a.logous 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 cla.s.s 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 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 pa.s.sed 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 chastis.e.m.e.nt 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 guardians.h.i.+p of justice appeared to throw around the person of the Sovereign.

This later Roman view of the Sovereign's relation to justice certainly a.s.sisted in saving modern societies from the necessity of travelling through the series of changes which I have ill.u.s.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 a.s.sembly 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 pa.s.sages 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 a.s.sumptions contended for by the Church in the Dark Ages--first, that each feudal ruler, in his degree, might be a.s.similated 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 G.o.d.

There is a pa.s.sage 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 a.s.signed to treason against the Caesar. "After this it happened," he writes, "that many nations received the faith of Christ, and there were many synods a.s.sembled 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 a.s.sign any mercy because Almighty G.o.d 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."