atonement and public or private penalty.[1] These may be said to have followed in sequence but overlapped each other. The same sequence is observable in the history of the laws of other nations, the later system gradually gaining ground upon the earlier and eventually superseding it.[2] The remarkable thing in Rome is that private vengeance should so long not only have left its traces but continued to be an active power. According to tradition it was an admitted right of the gens or kinsmen of a murdered man in the days of Numa; a law of his is said to have provided that, where a homicide was due to misadventure, the offering to them of a ram should stay their hands (supra, p. 533). And this seems to have been also prescribed in the XII. Tables (VIII., 24). To avenge the death of a kinsman was more than a right: it was a religious duty, for his manes had to be appeased; and so strongly was this idea entertained that, even long after the state had interfered and made murder a matter of public prosecution, a kinsman was so imperatively bound to set it in motion that if he failed he was not permitted to take anything of the inheritance of the deceased. The talion we read of in the XII. Tables is also redolent of the vindicta privata, although practically it had become no more than a means of enforcing reparation. And even the nexal creditor's imprisonment of his defaulting debtor (infra, p. 551), which was not abolished until the 5th century of the city, may not unfittingly, in view of the cruelties that too often attended it, be said to have savoured more of private vengeance than either punishment or procedure in reparation.
Expiatio, supplicium, sacratio capitis, all suggest offences against the gods rather than against either an individual or the state. But it is difficult to draw the line between different classes of offences, and predicate of one that it was a sin, of another that it was a crime and of a third that it was but civil injury. They ran into each other in a way that is somewhat perplexing. Apparently the majority of those specially mentioned in the so-called leges regiae and other records of the regal period were regarded as violations of divine law, and the punishments appropriate to them determined upon that footing. Yet in many of them the prosecution was left to the state or to private individuals. It is not clear, indeed, that there was any machinery for public prosecution except in treason and murder—the former because it was essentially a state offence, the latter because it was comparatively early deemed expedient to repress the blood-feud, which was apt to lead to deplorable results when clansmen and neighbours appeared to defend the alleged assassin.
Take some of those offences whose sanction was sacratio capilis. Breach of duty resulting from the fiduciary relation between patron and client, maltreatment of a parent by his child, exposure or killing of a child by its father contrary to the Romulian rules, the ploughing up or removal of a boundary stone, the slaughter of a plough-ox—all these were capital offences; the offender, by the formula sacer esto, was devoted to the infernal gods. Festus says that, although the rules of divine law did not allow that he should be offered as a sacrifice to the deity he had especially offended (nec fas est eum immolari), yet he was so utterly beyond the pale of the law and its protection that any one might kill him with impunity. But, as the sacratio was usually coupled with forfeiture of the offender's estate or part of it to religious uses, it is probable that steps were taken to have the outlawry or excommunication judicially declared, though whether by the pontiffs, the king or the curies does not appear; such a declaration would, besides, relieve the private avenger of the incensed god of the chance of future question as to whether or not the citizen he had slain was sacer in the eye of the law.
That there must have been other wrongful acts that were regarded in early Rome as deserving of punishment or penalty of some sort, besides those visited with death, sacration or forfeiture of estate, total or partial, cannot be doubted; no community has ever been so happy as to know nothing of thefts, robberies and assaults. The XII. Tables contained numerous provisions in reference to them; but it is extremely probable that, down at least to the time of Servius Tullius, the manner of dealing with them rested on custom, and was in the main self-redress, restrained by the intervention of the king when it appeared to him that the injured party was going beyond the bounds of fair reprisal, and frequently bought off with a composition. When the offence was strictly within the family or the gens, it was for those who exercised jurisdiction over thosei bodies to judge of the wrong and prescribe and enforce the penalty.
Jurisdiction and Procedure.—Of the course of justice, whether in criminal or civil matters, during the regal period we know little that Early course of justice. can be relied on. Ancient writers speak of the king as having been generally supreme in both. But this can be accepted only with considerable reservation. For the paterfamilias, aided by a council in cases of importance, was judge within the family—his jurisdiction sometimes excluding that of the state, at other times concurring with it, and not to be stayed even by an acquittal pronounced by it. He alone was competent in any charge against a member of the family for a crime or offence against the domestic order—adultery or unchastity of wife or daughter, undutiful behaviour of children or clients, or the like. Death, slavery, banishment, expulsion from the family, imprisonment, chains, stripes, withdrawal of peculium, were all at his command as punishments; and it may readily be assumed that in imposing them he was freer to take account of moral guilt than an outside tribunal. The indications of criminal jurisdiction on the part of the gens are slight; but its organization was such that it is difficult not to believe that it must occasionally have been called on to exercise such functions. And it must not be lost sight of that, as murder seems to have been the only crime in regard to which private revenge was absolutely excluded, the judicial office of the kings must have been considerably lightened, public opinion approving and not condemning self-redress so long as it was kept within the limits set by usage and custom.
The boundary between civil and criminal jurisdiction, if it existed at all, was extremely shadowy. Theft and robbery, for example, if one may conclude from the position they held in the later jurisprudence, were regarded not as public but as private wrongs; and yet when a thief was caught in the act of theft by night he might be slain, and when by day might be scourged and thereafter sold as a slave. But in both cases it may also be assumed that a practice, afterwards formally sanctioned by the XII. Tables—that of the thief compounding for his life or freedom—was early admitted, and the right of self-redress thus made much more beneficial to the party wronged than when nothing was attained but vengeance on the wrongdoer. In assaults, non-manifest thefts, and other minor wrongs, self-interest would in like manner soon lead to the general adoption of the practice of compounding; what was originally a matter of option in time came to be regarded as a right; and with it there would be occasional difficulty in settling the amount of the composition, and consequent necessity of an appeal to a third party. The king as judge. Here seems to be the origin of the king's jurisdiction in matters of this sort. He was the natural person to whom to refer such a dispute; for he alone, as supreme magistrate, had the power to use coercion to prevent the party wronged insisting on his right of self-redress, in face of a tender by the wrongdoer of what had been declared to be sufficient reparation. But that self-redress was not stayed if the reparation found due was withheld; as the party wronged was still entitled at a much later period to wreak his vengeance upon the wrongdoer by apprehending and imprisoning him, it cannot reasonably be doubted that such also was the practice of the regal period.
How far the kings exercised jurisdiction in questions of quiritarian right, such as disputes about property or inheritance, is by no means obvious. Within the family, of course, such questions were impossible, though between clansmen they may have been settled by the gens or its chief. The words of style used in the sacramental real action (infra, p. 548) suggest that there must have been a time when the spear was the arbiter, and when the contending parties, backed possibly by their clansmen or friends, were actual combatants, and victory decided the right. Such a procedure could not long survive the institution of a state. In Rome there seems to have been very early substituted for it what from its general complexion one would infer was a submission of the question of right to the pontiffs as the repositories of legal lore. Their proper functions, however, being sacred, they had to bring what was a question of purely civil right within their jurisdiction, by engrafting on it a sacral element, viz. by requiring each of the parties to make oath to the verity of his contention; and the point that in form they decided was which of the two oaths was false and therefore to be made atonement for. In substance, however, it was a finding on the real question at issue; and the party in whose favour it was pronounced was free to make it effectual if necessary by self-redress in the ordinary way.
Of Servius, Dionysius says—using, as he often does, language more appropriate to the republican than to the regal period—that Servian reforms. he drew a line of separation between public and private judicial processes, and that, while he retained the former in his own hands, he referred the latter to private judges, and regulated the procedure to be followed in causes brought before them.[3] Something of the sort was absolutely necessary. He was enormously increasing the number of the citizens,—that is to say, of
- ↑ See Rein, Das Criminalrecht der Römer (Leipzig, 1844), pp. 24 seq.; Clark, Early Roman Law: Regal Period (London, 1872), pp. 34 seq.; Mommsen, Strafrecht, pp. 6, 36, 900.
- ↑ Probably every offence at first was an act attributable to the whole family or clan, and it was upon them or by them and not upon the individual wrong-doer or by the injured party that vengeance was taken.
- ↑ Dion. Hal. iv. 25.
