The history of Roman criminal jurisprudence begins with the oldJudicia Populi, at which the Kings are said to have presided.
These were simply solemn trials of great offenders underlegislative forms. It seems, however that from an early periodthe Comitia had occasionally delegated its criminal jurisdictionto a Quaestio or Commission, which bore much the same relation tothe Assembly as a Committee of the House of Commons bears to theHouse itself, except that the Roman Commissioners or Quaestoresdid not merely report to the Comitia, but exercised all powerswhich that body was itself in the habit of exercising, even tothe passing sentence on the Accused. A Quaestio of this sort wasonly appointed to try a particular offender, but there wasnothing to prevent two or three Quaestiones sitting at the sametime; and it is probable that several of them were appointedsimultaneously, when several grave cases of wrong to thecommunity had occurred together. There are also indications thatnow and then these Quaestiones approached the character of ourStanding Committees, in that they were appointed periodically,and without waiting for occasion to arise in the commission ofsome serious crime. The old Quaestores Parricidii, who arementioned in connection with transactions of very ancient date,as being deputed to try (or, as some take it, to search out andtry) all cases of paricide and murder, seem to have beenappointed regularly every year; and the Duumviri Perduellionis,or Commission of Two for trial of violent injury to theCommonwealth, are also believed by most writers to have beennamed periodically. The delegations of power to these latterfunctionaries bring us some way forwards. instead of beingappointed when and as state-offences were committed, they had ageneral, though a temporary jurisdiction over such as might beperpetrated. Our proximity to a regular criminal jurisprudence isalso indicated by the general terms "Parricidium" and"Perduellio" which mark the approach to something like aclassification of crimes.
The true criminal law did not however come into existencetill the year B.C. 149, when L. Calpurnius Piso carried thestatute known as the Lex Calpurnia de Repetundis. The law appliedto cases Repetundarum Pecuniarum, that is, claims by Provincialsto recover monies improperly received by a Governor-General, butthe great and permanent importance of this statute arose from itsestablishing the first Quaestio Perpetua. A Quaestio Perpetua wasa Permanent Commission as opposed to those which were occasionaland to those which were temporary. It was a regular criminaltribunal whose existence dated from the passing of the statutecreating it and continued till another statute should passabolishing it. Its members were not specially nominated, as werethe members of the older Quaestiones, but provision was made inthe law constituting it for selecting from particular classes thejudges who were to officiate, and for renewing them in conformitywith definite rules. The offences of which it took cognisancewere also expressly named and defined in this statute, and thenew Quaestio had authority to try and sentence all persons infuture whose acts should fall under the definitions of crimesupplied by the law. It was therefore a regular criminaljudicature, administering a true criminal jurisprudence.
The primitive history of criminal law divides itselftherefore into four stages. Understanding that the conception ofCrime, as distinguished from that of Wrong or Tort and from thatof Sin, involves the idea of injury to the State or collectivecommunity, we first find that the commonwealth, in literalconformity with the conception, itself interposed directly, andby isolated acts, to avenge itself on the author of the evilwhich it had suffered. This is the point from which we start;each indictment is now a bill of pains and penalties, a speciallaw naming the criminal and prescribing his punishment. A secondstep is accomplished, when the multiplicity of crimes compels thelegislature to delegate its powers to particular Quaestiones orCommissions, each of which is deputed to investigate a particularaccusation, and if it be proved, to punish the particularoffender. Yet another movement is made when the legislature,instead of waiting for the alleged commission of a crime as theoccasion of appointing a Quaestio, periodically nominatesCommissioners like the Quaestores Parricidii and the DuumviriPerduellionis, on the chance of certain classes of crimes beingcommitted, and in the expectation that they will be perpetrated.
The last stage is reached when the Quaestiones from beingperiodical or occasional become permanent Benches orChambers-when the judges, instead of being named in theparticular law nominating the Commission, are directed to bechosen through all future time in a particular way and from aparticular class and when certain acts are described in generallanguage and declared to be crimes, to be visited, in the eventof their perpetration, with specified penalties appropriated toeach description.
