第112章

Concurrently with its growth, the analogous process had gone on,which I have called the conversion of Wrongs into Crimes, forthough the Roman legislature did not extinguish the civil, remedyfor the more heinous offences, it offered the sufferer a redresswhich he was sure to prefer. Still, even after Augustus hadcompleted his legislation, several offences continued to beregarded as Wrongs, which modern societies look upon exclusivelyas Crimes; nor did they become criminally punishable till somelate but uncertain date, at which the law began to take notice ofa new description of offences called in the Digest criminaextraordinaria. These were doubtless a class of acts which thetheory of Roman jurisprudence treated merely as wrongs; but thegrowing sense of the majesty of society revolted from theirentailing nothing worse on their perpetrator than the payment ofmoney damages, and accordingly the injured person seems to havebeen permitted, if he pleased, to pursue them as crimes extraordinem, that is by a mode of redress departing in some respector other from the ordinary procedure. From this period at whichthese crimina extraordinaria were first recognised, the list ofcrimes in the Roman State must have been as long as in anycommunity of the modern world.

It is unnecessary to describe with any minuteness the mode ofadministering criminal justice under the Roman Empire, but it isto be noted that both its theory and practice have had powerfuleffect on modern society. The Emperors did not immediatelyabolish the Quaestiones, and at first they committed an extensivecriminal jurisdiction to the Senate, in which, however servile itmight show itself in fact, the Emperor was no more nominally.

than a Senator like the rest. But some sort of collateralcriminal jurisdiction had been claimed by the Prince from thefirst; and this, as recollections of the free commonwealthdecayed, tended steadily to gain at the expense of the oldtribunals. Gradually the punishment of crimes was transferred tomagistrates directly nominated by the Emperor and the privilegesof the Senate passed to the Imperial Privy Council, which alsobecame a Court of ultimate criminal appeal. Under theseinfluences the doctrine, familiar to the moderns, insensiblyshaped itself that the Sovereign is the fountain of all Justiceand the depositary of all Grace. It was not so much the fruit ofincreasing adulation and servility as of the centralisation ofthe Empire which had by this time perfected itself. The theory ofcriminal justice had, in fact, worked round almost to the pointfrom which it started. It had begun in the belief that it was thebusiness of the collective community to avenge its own wrongs byits own hand; and it ended in the doctrine that the chastisementof crimes belonged in an especial manner to the Sovereign asrepresentative and mandatary of his people. The new view differedfrom the old one chiefly in the air of awfulness and majestywhich the guardianship of justice appeared to throw around theperson of the Sovereign.