BOOK II CRIMINAL PROCEDURE § 1. The criminal procedure of the earliest times. societies. PRIMITIVE Societies, in their attitude towards crime, look BOOK II. for punishment sometimes to the individual, sometimes to Views the gods, rarely to the corporate life of the commonwealth. of crime taken by They treat the offence as a ground for private revenge, primitive either for a simple, equivalent vengeance, such as that of retaliation (talio), or for the more remunerative compensation of oxen, sheep, or metal. But a vague identification of the individual with the common weal leads them also to look on crime as a sin against the tribal gods, to be paid for by penalties which represent atonement to the divine being who has been injured or angered. When the idea of the state has been gradually unfolded from its theocratic shroud, a crime is an offence against the commonwealth itself; but even now the relation of the violated right to the state may be a nearer or more distant one. The wrong may be regarded as a blow struck directly against the public security or inflicted on the state through the persons of its injured magistrates, or, as exemplified in the more common forms of criminal activity, it may be held to be an indirect injury to the welfare of society through the harm which has been inflicted on one. of its individual members. In the latter case the state has taken up the burden of the individual; it is he that BOOK II. Concep. tion of crime in early koman law, : is the main object of protection. The idea of retribution for a personal wrong has by no means disappeared, but the political society has identified itself with its members, and a wrong done to one of these is pre-eminently a matter for the commonwealth. The earliest glimpse which we get of Roman history shows us a strong military monarchy which has succeeded a quasi-theocratic rule. The stage of a national conscience which forces a government to punish crime as a secular offence has on the whole been reached; yet there are very distinct survivals of the earlier conceptions of private vengeance and of sin. Vengeance is shown in the terms. ground for which still continue to denote punishment, such as poena (TOL) and multa, the Sabine or Oscan word which originally perhaps signified compensation in cattle and was retained with the signification of a pecuniary penalty (poena pecuniaria). The right of talio in the form of (i) As a vengeance. (ii) As a sin. 'a broken limb for a broken limb' still survived in the Twelve Tables 2. It is probable that the right to kill, possessed over the nocturnal thief and the adulterer caught in the act, is a survival of primitive vengeance, and the latest Roman law gives a prior right of prosecution to the injured person. The religious idea that crime is sin left a still deeper mark on Roman jurisprudence. It is manifested in the names that survived for secular penalties, in survivals of primitive modes of inflicting punishment, and in the fact that, through the disappearance of purely religious sanctions, breaches of obligations which the modern world regards as crimes remained unpunished by the secular arm. Supplicium, the word which denotes the severest, and usually a capital penalty, was in early days a ‘sin 1 Gell. xi. 1, 5; Festus, p. 142. 2 Gell. xx. I, 14 'Si membrum rupit, ni cum e pacto, talio esto.' 3 Cic. pro Mil. 3, 9; cf. pro Tull. 20, 47. Cic. in Verr. ii. 37, 91; pro Leg. Man. 5, 11; de Nat. Deor. iii. 33, 81. offering. In its harshest form it originally necessitated BOOK II. the dedication of a sinner and his goods to some unappeased divinity. Castigatio2 (castus agere) conveys the notion of purification through atonement. For sin to be done away the gods must be appeased by The expiation some form of expiation, and it is this piaculum which, in for sin. its character and amount, was adjudged with the minutest certainty by the chief pontiff, the head of the Roman religion. Even by the close of the monarchical period classes of offences had been drawn up showing the expiation which was the exact equivalent of each. A general sense of sin might demand a recurring expiation to avert the anger of the gods from the whole community; thus the secret sins of the people were atoned for by the lustral sacrifice which closed the census. Similar atonement was demanded for individual acts which were certainly misdeeds in the eye of heaven, but which, as not positively injurious to the human race, would have fallen short of the later conception of crime 3. A mild instance was the touching of the altar of Juno by a concubine; a graver infraction of religious law might be found in a homicide for which, through mitigating circumstances that had saved the slayer, the gods had never been appeased. When Horatius had been pardoned for the murder of his sister, the sin was yet expiated at the public expense, and the youth with veiled head passed under the beam that his father had been bidden to erect 5. In some cases the pon- Intentifical law had reached the stage of refinement of making uninten 1 1 Festus, p. 308 'supplicia veteres quaedam sacrificia a supplicando vocabant.' The sense of sin-offering, found in Plautus (Rudens, prol. 25), is still preserved in the Ciceronian period (Sall. Cat. 9, 2; Varro, R. R. ii. 5, 10). 2 Cic. de Off. i. 25, 88. 3 Cic. de Leg. ii. 9, 22 'Sacrum commissum, quod neque expiari poterit, impie commissum esto: quod expiari poterit, publici sacerdotes expianto.' Gell. iv. 3, 3; Festus, p. 222. 5 Liv. i. 26; Dionys. iii. 22; Festus, pp. 297 and 307. For the piaculum following on incest according to the laws of King Tullus' see Tac. Ann. xii. 8, 2. tional and tional sin. BOOK II. intent the determinant of the act and its atonement, for classes of sins were developed in which expiation was only accepted where the offence had been involuntary1. The man who had sinned of full consciousness (prudens) could not be expiated 2, a doom which overhung the perjurer, the man who had done injury to a god by taking his name in vain 3. For intentional perjury (conceptis verbis peierare) no atonement could be accepted; nothing short of the life of the perjurer could expiate this deadly wrong. When the capital penalties of the pontifical college had sunk into desuetude, there was no secular punishment for this crime. Perjury in Cicero's time is but a dedecus, not to be visited by the criminal law, but to be swept from the state by the censors as the guardians of its moral life 3. Deadly sin punished by the consecratio capitis. But apart from the consideration of the consciousness of the agent, to which a primitive society can attach little weight except when it is glaringly present or absent, there was a fixed class of deadly sins for which the gods would accept no atonement but the life and goods of the sinner himself. This consecratio capitis was the penalty for the wrong done to a client by his patron 6, for the ill-treatment of elders by their children, and for the injury inflicted on a neighbour, whether by the removal of his boundary stone or the destruction of his corn by night. Incest, too, in its graver forms belonged even in the late Republic to the class of offences for which no expiation but the immolation of the sinner could atone 10. This ius divinum of the pontiffs, which was to a great 1 The practice of strange, immoral, and superstitious rites could thus be expiated (Cic. de Leg. ii. 15, 37). 2 Macrob. i. 16, 10; Varro, L. L. vi. 30. 3 Cic. de Leg. ii. 9, 22' Periurii poena divina exitium, humana dedecus.' Cf. the statement of the principle ' deorum iniurias dis curae' by the Emperor Tiberius in 15 A.D. (Tac. Ann. i. 73, 5). 3 Cic. de Off. i. 13, 40; iii. 31, III. Dionys. ii. 10; Serv. ad Verg. Aen. vi. 609. Festus, p. 230. • Plin. H. N. xviii. 3, 12. 10 Cic. de Leg. ii. 9, 22 'Incestum pontifices supremo supplicio sanciunto.' extent family law, covered the most simple needs of a primitive community, and perhaps went back to a time when such obligations were enforced by family councils before the growth of a central government. They were taken up by the king as the religious head of the community, and judgement and execution rested with him and his council of pontiffs. The extreme penalty which they might inflict, the consecratio, was doubtless in origin an actual sacrifice of the victim's life on the altar of a god, his property falling to the divinity as well. In most cases the deity so appeased was the one whom he had specially offended'. The perjurer was devoted to the god forsworn, the son to the manes of his parent, the remover of boundaries to Jupiter Terminus, the corn-thief to Ceres. But in some cases there was no god peculiarly concerned, and at times we find that the head and the goods of the criminal are dedicated to different divinities. The persons are generally adjudged to Jupiter, dispenser of life; the landed property to the gods who nourish the human race, Ceres and Liber? This was, in fact, the form taken by the lex sacrata of 449 B. C.3 BOOK II. munica But the custom of consecration had lost its rigidity, Later conception of perhaps before the close of the monarchy, certainly in the sacratio; early days of the Republic. A man might still be declared excomsacer, but immolation is no longer his fate. The word tion and outlawry. implies no more than excommunication or outlawry. person banned is cut off from all divine and all human assistance. He is separated from the fire and the water of his tribe (aqua et igni interdictus), and any one may slay him with impunity. In the earliest leges sacratae 1 See Rein, Criminalrecht, p. 30. The 'Bouché-Leclerq, Les Pontiffs, p. 196. Liv. iii. 55 'Ut qui tribunis plebis, aedilibus, iudicibus, decemviris nocuisset, eius caput Iovi sacrum esset, familia ad aedem Cereris Liberi Liberaeque venum iret.' Festus, p. 318 'At homo sacer is est quem populus iudicavit ob maleficium; neque fas est eum immolari, sed qui occidit parricidi non damnatur.' Cf. Dionys. ii. 10 and 74. |