I will mention two more singularities of the Roman CriminalSystem which were produced by the same theory of judicialauthority. They are, the extreme multiplicity of the Romancriminal tribunals, and the capricious and anomalousclassification of crimes which characterised Roman penaljurisprudence throughout its entire history. Every Quaestio, ithas been said, whether Perpetual or otherwise, had its origin ina distinct statute. From the law which created it, it derived itsauthority; it rigorously observed the limits which its charterprescribed to it, and touched no form of criminality which thatcharter did not expressly define. As then the statutes whichconstituted the various Quaestiones were all called forth byparticular emergencies, each of them being in fact passed topunish a class of acts which the circumstances of the timerendered particularly odious or particularly dangerous, theseenactments made not the slightest reference to each other, andwere connected by no common principle. Twenty or thirty differentcriminal laws were in existence together, with exactly the samenumber of Quaestiones to administer them; nor was any attemptmade during the Republic to fuse these distinct judicial bodiesinto one, or to give symmetry to the provisions of the statuteswhich appointed them and defined their duties. The state of theRoman criminal jurisdiction at this period, exhibited someresemblances to the administration of civil remedies in Englandat the time when the English Courts of Common Law had not as yetintroduced those fictitious averments into their writs whichenabled them to trespass on each other's peculiar province. Likethe Quaestiones, the Courts of Queen's Bench, Common Pleas, andExchequer were all theoretical emanations from a higherauthority, and each entertained a special class of cases supposedto be committed to it by the fountain of its jurisdiction; butthen the Roman Quaestiones were many more than three in number,and it was infinitely less easy to discriminate the acts whichfell under the cognisance of each Quaestio, than to distinguishbetween the provinces of the three Courts in Westminster Hall.
The difficulty of drawing exact lines between the spheres of thedifferent Quaestiones made the multiplicity of Roman tribunalssomething more than a mere inconvenience; for we read withastonishment that when it was not immediately clear under whatgeneral description a man's alleged offences ranged themselves,he might be indicted at once or successively before severaldifferent Commissions, on the chance of some one of themdeclaring itself competent to convict him; and, althoughconviction by one Quaestio ousted the jurisdiction of the rest,acquittal by one of them could not be pleaded to an accusationbefore another. This was directly contrary to the rule of theRoman civil law; and we may be sure that a people so sensitive asthe Romans to anomalies (or, as their significant phrase was, toinelegancies) in jurisprudence, would not long have tolerated it,had not the melancholy history of the Quaestiones caused them tobe regarded much more as temporary weapons in the hands offactions than as permanent institutions for the correction ofcrime. The Emperors soon abolished this multiplicity and conflictof jurisdiction; but it is remarkable that they did not removeanother singularity of the criminal law which stands in closeconnection with the number of the Courts. The classifications ofcrimes which are contained even in the Corpus Juris of Justinianare remarkably capricious. Each Quaestio had, in fact, confineditself to the crimes committed to its cognisance by its charter.
These crimes, however, were only classed together in the originalstatute because they happened to call simultaneously forcastigation at the moment of passing it. They had not thereforeanything necessarily in common; but the fact of theirconstituting the particular subject-matter of trials before aparticular Quaestio impressed itself naturally on the publicattention, and so inveterate did the association become betweenthe offences mentioned in the same statute that, even when formalattempts were made by Sylla and by the Emperor Augustus toconsolidate the Roman criminal law the legislator preserved theold grouping. The Statutes of Sylla and Augustus were thefoundation of the penal jurisprudence of the Empire, and nothingcan be more extraordinary than some of the classifications whichthey bequeathed to it. I need only give a single example in thefact that perjury was always classed with cutting and woundingand with poisoning, no doubt because a law of Sylla, the LexCornelia de Sicariis et Veneficis, had given jurisdiction overall these three forms of crime to the same Permanent Commission.
It seems too that this capricious grouping of crimes affected thevernacular speech of the Romans. People naturally fell into thehabit of designating all the offences enumerated in one law bythe first name on the list, which doubtless gave its style to theLaw Court deputed to try them all. All the offences tried by theQuaestio De Adulteriis would thus be called Adultery.
I have dwelt on the history and characteristics of the RomanQuaestiones because the formation of a criminal jurisprudence isnowhere else so instructively exemplified. The last Quaestioneswere added by the Emperor Augustus, and from that time the Romansmay be said to have had a tolerably complete criminal law.
