BOOK VI. Quas tiones per petuæ. Abuse of judicial functions, The complaints of the misgoverned provinces had for some time been so frequent that the appointment of extraordinary commissions for the purpose of hearing these complaints no longer sufficed. A permanent evil had to be met by a permanent remedy. Consequently, in the year 149 B.C. the Calpurnian law was passed, by which the criminal jurisdiction which had formerly been exceptional was established as a rule. This law prescribed that for the trial of persons charged with extortion (technically called repetundæ, i.e. pecuniæ) a regular permanent court (quæstio perpetua) should be annually formed consisting of senators. In course of time other courts for various other offences were established after the model of this first tribunal. These permanent courts exercised from this time forward a great influence upon the internal life of the republic, particularly in consequence of the disputes about the selection of judges, as we shall see in the period of civil disturbances after the Gracchi. It was the misfortune of the Roman republic that services rendered by individual citizens to the state were regarded not only as duties imposed by the community, but as the means of acquiring wealth and position. In the same way as military service presented to the soldiers the prospect of booty and of allotments of land; as public offices placed at the disposal of the magistrates in peace, and still more in war, the resources of the state and especially of the subjects, and became more and more the means of accumulating enormous fortunes, thus also the judicial offices were from the beginning a source of power and authority, as even Polybius relates with characteristic simplicity, and the profits arising therefrom became more considerable in proportion as with the spreading power of Rome larger interests were affected by them. The senators used and abused their judicial trust for personal and political purposes, and thereby undermined the authority of law, which was the first and most essential condition for the preservation of the republic. When the senators were declared unworthy by the law of Caius Gracchus, in 123 B.C., to discharge the high judicial offices any longer, they had lost for ever that exalted position which they had formerly occupied in the organism of the state. It was fatal to the republic in its old form that Gracchus took the judicial office from the senators; but, worse than this, it was a proof of the impossibility of the continuance of any kind of republican form of government when the discovery was made that no other class could be found which would discharge these important duties more conscientiously. The various laws which were passed from this time forward to insure the independence and impartiality of the tribunals resemble the desperate attempts often made to prolong the life of a sick man whose death is approaching. CHAP. tors. V. The criminal procedure in Rome, as in Greece, allowed Private every citizen the right to act as prosecutor. The state in prosecuits earlier stages of development, after self-help by private war was abolished, left an injured party to obtain satisfaction and redress of his wrongs by prosecuting the offender by process of law. If the injured omitted to do this, or if the offence committed was not directed against the state, no trial took place, for there was no official investigation of private delinquencies. It was not until the time of the emperors that criminal procedure was established on the basis of public and official inquiry and prosecution. In the republican period the magistrates generally, and more particularly the tribunes of the people, might, if they thought proper, proceed against public offenders. But every private citizen was entitled, nay, invited to do the same, and was induced by rewards publicly offered for aiding in the punishment of crimes. The practice of those who brought such accusations on their own account was only looked upon as dishonourable if as common informers (delatores, quadruplatores and calumniatores) they made it their business for private profit. For the rest, the right of accusation possessed by every citizen was one of the securities for the preservation BOOK of free institutions, and formed an essential part of the organism of the republic. It was the practical result of the responsibility of magistrates that every man in the nation could rise against them as prosecutor. But the political parties more especially had recourse to this means for rendering inconvenient opponents temporarily or permanently harmless. Thus the law was made an instrument of political passions, an abuse which naturally had no beneficial effect either upon the administration of justice or upon politics, but was a source of weakness and disgrace for the former. At the time of Cato this evil had already become injurious to a very high degree, as we shall see further on. After the fall of the republic the disgraceful practices of professional accusers continued in the time of the emperors, and to this evil inheritance of the republic more than to anything else the Emperor Tiberius owes a great deal of the obloquy which has for ages calumniated the ruler who was not the author of this system, and had not the power to abolish it. But the detail of criminal procedure belongs to a special history of criminal law. We will merely remark here that the accused was required to defend himself or was defended by near relations and friends. The art of pleading for the defence, as well as forensic eloquence in general, was probably brought to some degree of perfection before the time of Cato; yet in criminal as also in civil trials the orators for the defence were forbidden by the Lex Cincia 2 (204 B.C.) to accept fees. Above, p. 94. 2 The Lex Cincia was one of those well-meant and foolish laws destined to curb human nature and to make men virtuous by compulsion. It ranks with the laws against taking interest, or more than a maximum of interest, on loans, the laws regulating prices, and the so-called luxury laws. If such laws produce any effect, it is to make those evils greater which they are intended to restrain. It is to be supposed that Roman pleaders were not satisfied with the mere honour of their arduous work, and that, like the magistrates, who were in a similar position and received no salaries, they managed to secure payment in one way or another, in spite of the Lex Cincia, just like modern barristers, who, like their Roman colleagues, do not receive feesdirectly. V. Punish ments. Into the various modes of punishment provided by CHAP. the criminal law of Rome we cannot enter in this place. But it is essential and important for political history to characterise the nature of the punishments in general, and to point out in particular how in their application to Roman citizens they marked the value and importance of citizenship. There is, however, a striking contrast between the revolting refinement of criminal justice in the middle ages and down to recent times and the clemency of the Roman laws, which abstained from prolonging the sufferings of condemned criminals by tortures and cruelty. With few exceptions, which are probably to be attributed to exaggeration and fancy,' when the punishment of death was awarded the sentence was executed in a simple and expeditious manner. Roman freemen condemned to death were thrown from the Tarpeian rock (the mode of punishment inflicted by the tribunes), strangled in prison, beheaded, or, in cases of parricide, drowned. The divine law alone required severer penance. The guilty Vestal virgin was doomed to die of starvation in a walled sepulchre, and her seducer was whipped to death by the supreme pontifex himself in the open market-place. If slaves were doomed to the more severe punishment of crucifixion, it was because the whole of antiquity did not consider slaves entitled to be treated like other human beings. The punishment of imprisonment, so universal in modern times, was originally not in use amongst the Romans. Such, for instance, as the tearing a man asunder by horses driven in opposite directions, which is said to have been done in the case of Mettius Fufetius. Liv. i. 28. The way in which Livy relates this horrible punishment shows that his own feelings revolted against it; and he adds: Primum ultimumque illud supplicium apud Romanos exempli parum memoris legum humanarum fuit; in aliis gloriari licet, nulli gentium mitiores placuisse pœnas. Cicero (Pro Rabirio Perd. Reo, 3, 10) praises those Roman legislators 'qui libertatem non acerbitate suppliciorum infestam, sed lenitate legum munitam esse voluerunt.' 2 Liv. xxii. 57: L. Cantilius, scriba pontificis, qui cum Floronia stuprum fecerat, a pontifice maximo eo usque virgis in comitio casus erat, ut inter verbera expiraret. From the way in which Livy relates this cruel punishment it may be doubted whether it was or was not intended that the culprit should be actually whipped to death. BOOK The pe nalty of exile. In criminal trials confinement was but a preliminary But, on the other hand, the Romans, like all the states of antiquity, possessed a means of punishment which can now hardly be employed, or at least only on a far smaller scale. This was the punishment of exile. In our days of unceasing and universal intercourse among the civilised nations, and of a normal condition of international peace and friendly relations with foreign powers, a man's native country is no longer of such paramount importance to him as was the case in antiquity. Not only is the right of citizenship in a foreign country now easily acquired by immigrants, but the laws of every state permit strangers as such to settle, to carry on trade and commerce, and to enjoy the protection of the laws just as if they were members of the community. In return for this readiness on the part of modern states to receive foreigners hospitably, every state acknowledges the silent obligation to keep within its own boundaries all common criminals condemned to suffer punishment, and not to allow that in the character of exiles they should infest other countries. Even the original penal settlements, now colonies of Australia, have succeeded in inducing the mother country to cease transporting criminals to those parts. But the states of antiquity had not made any progress towards this beginning of a general international confederation or brotherhood. Each individual had rights only in the state to which he belonged as a citizen. Outside his country he was utterly devoid of rights, although the necessities of mutual intercourse had compelled each nation to extend to foreigners a certain degree of toleration and protection within limited bounds. It was almost impossible to acquire a foreign citizenship or to be admitted to the community of religious and social ceremonies, and to the |