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 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 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 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 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
pronounce 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 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 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 assault and violent robbery, are associated by the
jurisconsult with trespass, 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 adventitious circumstances." These compositions are evidently
regarded 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 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 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
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 punishing
_sins_. There were also laws punishing _torts_. The conception of
offence against God produced the first class 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 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 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
classification 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 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 [Greek: eisangelia], 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 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 asserted 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
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 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 asserts 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, "_Mittite 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 assertion 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 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 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 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 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 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 under the circumstances 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 circumstances 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 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 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 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 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 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 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
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 became 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 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 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 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 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 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 _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 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."
INDEX
Austin, 69, 171;
_Province of Jurisprudence Determined_, 4
Ayala, 64
Bentham, 18, 46, 54, 70, 147;
_Fragment on Government_, 4
Blackstone, 67, 89, 150, 152
_Cambridge Essays_, 1856, Maine, 205, 212
Capture in war, 145, 146
Casuistry, 205, 206, 207
Charlemagne, 62, 233
Codes, Attic of Solon, 9;
era of, 8;
first introduced into the West, 10;
Hindoo Law of Menu, 10-12;
Justinian, 25, 27;
Napoleon, 104;
Roman, superiority over Hindoo, 10-12;
Twelve Tables of Rome, 1, 8, 9, 12, 20
Contract, Austin on, 190;
Bentham on, 190;
Imperative Law, 182;
judicial and popular error, 181;
Law of Nations, 181, 196, 197;
literal or written, 194;
origin lies in the family, 99;
pact or convention, 184, 185;
real, 195;
Roman, classification, 191, 192;
consensual, 195-198;
Domestic System, 194;
Nexum, definition of, 185-189;
Rousseau, 181;
sale, 188
Conveyances and contracts, confusion between, 185-187;
and mancipation, 185
_Corpus juris civilis_, 26
Creditors, powers of, in ancient system, 189
Crimes and wrongs, confusion between, 231, 232;
distinction between primitive and modern, 217, 218;
Kemble in _Anglo-Saxons_, 218
Criminal Law, Athens, 224;
degree of guilt, 223;
four stages of primitive history, 226;
influence of Church, 233;
primitive religious code, 218, 219;
Roman, crime against State, 219;
B.C. 149, 225;
origin of, 225;
sentence of death, 227-229;
theft, 222, 223;
tribunals, 228-230;
under emperors, 230-232
Customary Law, epoch of, 7, 8;
Hindoo, 4
Dangers of Law, rigidity, too rapid development, 44, 45
Debtors, severity of ancient system, 189
Equity, 172;
early history of, 15;
Lord Eldon on, 40;
English, 40, 41;
meaning of, 17;
origin, 34, 35;
Roman compared with English, 40-42
Feudalism, explanation of, 214
Gaius, 90, 174, 220-223
Grote, decline of kingly rule, 6;
_History of Greece_, 3, 5;
law administered by aristocracies, 7
Grotius, Hugo, 56, 58, 59, 64;
_De Jure Belli et Pacis_, 205
Homer, earliest notions of law derived from, 2, 3;
Themis, Themistes, 2-5
Indian (Hindoo) Law, _see_ separate headings Codes, Customary,
Primogeniture, Property, Testamentary Law, Village communities
Institutional Treatise (Justinian), 27
International Law, 64;
and occupancy, 145
Law of Nations (Jus Gentium), incorporation with Roman Law, 36, 37;
origin of, 27-31
Legal fictions, benefit of, 77;
examples in English Law, 18;
in Roman Law, 15, 16;
meaning, useful purpose of, 15, 16
Legis Actio Sacramenti, Gaius on, 220, 221
Legislation, the agent of legal
improvement, 17;
differing from equity, legal fictions, 17, 18
_Lettres Persanes_, 183
Maine, _Cambridge Essays_, 1856, 205, 212
Mancipation, 120, 121, 163-169, 185
Menu, Laws of, 10-12
Montesquieu, 49, 51, 183
Natural Law (Law of Nature), American Law and, 56;
antagonistic to historical method, 53;
confusing past with present, 43;
equality of man, 54-56;
equality of sex, 90;
feudalism, 62, 65;
French history, 47, 48, 50, 53;
French Law, 56;
Greek interpretation of, 44;
Grotian system, 56, 58, 59, 64-66;
incorporated with Roman Law, 36, 37;
influence of Stoics, 32, 33;
Modern International Law, 56-60;
most critical period, 50;
modern society, 54;
occupancy, 145-147, 153;
origin of, 31, 32;
private property, 164;
Rousseau on, 51;
slavery, 95;
territorial sovereignty, 60-63;
Testamentary Law, 103, 104
Occupancy, 144, 145;
in Roman Law, 145
Pascal, _Provincial Letters_, 207
Prescriptions, 167, 168;
and Canon Law, 168
Primogeniture, Celtic customs, 141, 142;
feudal system, 135-137;
Hindoo Law, 134, 137, 141;
Mahometan Law, 142;
Roman Law, 133, 134
Property, natural modes of acquiring, 144
Property Law, ancient Germanic, 165,
ancient Sclavonic, 165;
descent in Middle Ages, 132;
Indian Law, 165;
origin of, 145;
possession, 170, 172;
private, ancient forms of transfer, 160, 162-164;
Roman, 60, 66, 166;
Cessio in Jure, 170;
Edictum Perpetuum, 37;
Emphyteusis, 175-178;
Gaius on, 174;
Justinian, 174;
law of persons and things, 152;
mancipation, 163, 169;
possessory interdicts, 171;
Praetor's interdict, 172;
Res Mancipi, 160-164, 173;
Res Nec Mancipi, 164;
system of farming, 176;
usucapion, 167, 169, 173
Roman Law, _see_ separate headings Contracts, Criminal, Property,
Occupancy, Testamentary;
Decemviral Law, 20;
definition of inheritance, 107;
end of period of jurists, 40;
influence of Praetor, 38;
intestacy, 127-130;
law of inheritance, 111;
Leges Corneliae, 24, 25;
Leges Juliae, 25;
marriage, 91;
obligation in, 190, 191, 195, 197;
Pandects of Justinian, 39;
powers of Praetor, 37, 39;
Praetorian edict, 24, 25;
Responsa Prudentum, 20, 21, 24;
reverence of Romans for, 22;
Statute Law, 25;
Twelve Tables, 1, 8, 9, 12, 20
Rousseau, on Social Contract, 181
Savigny, 171;
on occupancy, 150
Slavery, American opinions of, 96;
influence of Law of Nature upon, 97;
Roman system, 95-97
Status, definition of, 100
Testamentary Law, adoption and testation, 114, 115;
Church's influence upon, 102;
corporation, aggregate and sole, 110;
Hindoo Law, 113, 114;
Hindoo compared with Roman, 113;
Law of Nature, 103, 104;
Roman Law, 111, 112, 117-123;
mancipation, 120, 123;
Praetorian testament, 123-125;
Twelve Tables, 112, 119, 122;
Roman family, agnatic and cognatic relationship, 86-89;
duties and rights of father, 85;
effects of Christianity, 92;
family, the basis of State, 75, 76;
kinship, 86, 88;
modification of parental privileges, 84;
origin of contract in, 99;
origin of law of persons, 89;
parental powers, 80-82, 88
Theology, and Jurisprudence, 208-210;
moral, 204, 205
Theories, based on Roman doctrine, Bentham, 69;
Blackstone, 67;
differing from Roman Glossators, annotations of, 67;
Grotius, 67;
Jurisprudence, dissatisfaction with, 70;
Locke, 67;
Montesquieu, 68;
patriarchal, 72-75
Universal succession, 106;
in Roman Law, 106, 107
"Universatis Juris," 105
Village communities, Indian, 153, 154, 156, 158;
Indian, compared with Roman gens, 155;
Indian, Elphinstone, _History of India_, 155, 156;
Russian 157
Women, ancient rules defeated by Natural Law, 90;
Canon Law, 93;
English Common Law, 93, 94;
Roman family, 90, 91;
gradual independence under Roman Law, 91, 92;
Roman, perpetual tutelage of, 90;
under Roman Law, 89, 90;
subordination to husband in Middle Ages, 92;
subordination of Roman to relations, 90
MADE AT THE
TEMPLE PRESS
LETCHWORTH
IN GREAT BRITAIN
End of Project Gutenberg's Ancient Law, by Sir Henry James Sumner Maine