This later Roman view of the Sovereign's relation to justicecertainly assisted in saving modern societies from the necessityof travelling through the series of changes which I haveillustrated by the history of the Quaestiones. In the primitivelaw of almost all the races which have peopled Western Europethere are vestiges of the archaic notion that the punishment ofcrimes belongs to the general assembly of freemen; and there aresome States -- Scotland is said to be one of them -- in which theparentage of the existing judicature can be traced up to aCommittee of the legislative body. But the development of thecriminal law was universally hastened by two causes, the memoryof the Roman Empire and the influence of the Church. On the onehand traditions of the majesty of the Caesars, perpetuated by thetemporary ascendency of the House of Charlemagne, weresurrounding Sovereigns with a prestige which a mere barbarouschieftain could never otherwise have acquired and werecommunicating to the pettiest feudal potentate the character ofguardian of society and representative of the State. On the otherhand, the Church, in its anxiety to put a curb on sanguinaryferocity, sought about for authority to punish the gravermisdeeds, and found it in those passages of Scripture which speakwith approval of the powers of punishment committed to the civilmagistrate. The New Testament was appealed to as proving thatsecular rulers exist for the terror of evildoers; the OldTestament, as laying down that "Whoso sheddeth man's blood, byman shall his blood be shed." There can be no doubt, I imagine,that modern ideas on the subject of crime are based upon twoassumptions contended for by the Church in the Dark Ages-first,that each feudal ruler, in his degree, might be assimilated tothe Roman Magistrates spoken of by Saint Paul; and next, that theoffences which he was to chastise were those selected forprohibition in the Mosaic Commandments, or rather such of them asthe Church did not reserve to her own cognisance. Heresy(supposed to be included in the First and Second Commandments),Adultery, and Perjury were ecclesiastical offences, and theChurch only admitted the co-operation of the secular arm for thepurpose of inflicting severer punishment in cases ofextraordinary aggravation. At the same time, she taught thatmurder and robbery with their various modifications were underthe jurisdiction of civil rulers, not as an accident of theirposition but by the express ordinance of God.
There is a passage in the writings of King Alfred (Kemble,ii. 209) which brings out into remarkable clearness the struggleof the various ideas that prevailed in his day as to the originof criminal jurisdiction. It will be seen that Alfred attributesit partly to the authority of the Church and partly to that ofthe Witan, while he expressly claims for treason against the lordthe same immunity from ordinary rules which the Roman Law ofMajestas had assigned to treason against the Caesar. "After thisit happened," he writes, "that many nations received the faith ofChrist, and there were many synods assembled throughout theearth, and among the English race also after they had receivedthe faith of Christ, both of holy bishops and of their exaltedWitan. They then ordained that, out of that mercy which Christhad taught, secular lords, with their leave, might without sintake for every misdeed the bot in money which they ordained;except in cases of treason against a lord, to which they darednot assign any mercy because Almighty God adjudged none to themthat despised Him, nor did Christ adjudge any to them which soldHim to death; and He commanded that a lord should be loved likeHimself."
End
