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CRIMEN is a term which has two ordinary meanings: a punishable offence (e.g. crimen admittere, confiteri; crimen alicui objicere), and the accusation brought against the person by whom it was committed (e.g. crimen alicui intendere, in crimen subscribers, suspecti crimen).

In the first of these senses crimina were, in the oldest period of Roman history, regarded as wrongs against religion and the gods (Vegoia, Röm. Feldmesser, 1.350; Liv. 1.26; Dionys. A. R. 3.22; Tac. Ann. 12.8), and their punishment as an expiation offered to Heaven (Serv. ad Verg. A. 1.632; Festus, s. v. Sacrata; Liv. 2.8, 3.55; Dionys. A. R. 8.79, 10.42). In the Twelve Tables this implication of penal law with religion and religious sanctions has become less prominent, and we find a distinction between offences which are punished by a solemn legislative act of the state (though few only with death, Cic. de Republ. 4.10), and offences atoned for by a mulct paid to the injured person in satisfaction of his resentment, as to the amount of which the parties might come to terms (Festus, s. v. talio). From this distinction arose another, of more scientific value, between delicta privata and crimina publica (Dig. 21, 1, 17, 18), which is adhered to with tolerable consistency in the writings of the jurists and the later law. Delicta privata, or delicta simply, are civil offences, or what we call “torts;” crimina publica are what we call crimes, offences against the state or community, the subject of prosecution before a criminal tribunal. But occasionally a delict is spoken of as a crimen (e. g. “extra furti crimen videri,” Gaius, in. 197; Inst. 4.1, 7), and in other passages (e. g. Dig. 48, 19, 1) a person who commits a crime is said delinquere.

The peculiarity of the Roman delicts seems to be that, independently of the obligation to indemnify the plaintiff for any loss or detriment which the wrongful act has occasioned him, they invariably entail on the defendant also a liability to pay a pecuniary penalty to the injured person: if his purse is stolen, he can recover in the civil courts not only the value of it with its contents, but also a penalty equivalent, under different circumstances, to twice or four times the sum awarded to him as pure compensation. In the Institutes of Gaius and Justinian delicts are discussed as one of the modes in which “obligations” originate: they comprise theft (furtum), robbery (bona vi rapta), damage to property (damnum injuria datum), and intentional wrongs to the person or reputation of a free man (injuria): Gaius, 3.182-225; Inst. iv. tits. 1-4. Besides delicts, there are certain quasi-delicts which are treated in Inst. iv. tit. 5, and which resemble delicts proper in subjecting the defendant to a liability to pay a pecuniary penalty to the plaintiff: apparently they are quasi-delicts, and not delicts, partly because they did not fall within the letter of the statutes or edicts by which delicts were created or regulated, partly because the liability is vicarious, a man being penalised for wrongs done not by himself, but by his servants, slaves, filii familias, &c. Under the empire the general rule was that any one who could bring a penal action on a delict (other than damnum injuria/un> datum) might, if he preferred it, prosecute the delinquent before a criminal tribunal, forfeiting thereby however his right to recover the private poena (Dig. 47, 1, 3; 47, 2, 56, 1); and Ulpian says (in Dig. 47, 2, 92) that in his time theft was most usually made the subject of criminal proceedings.

The notion of crime and rules of criminal procedure were of very slow development at Rome. At first, if a man committed a wrong so heinous that it seemed improper to leave it to individuals to pursue by a civil remedy, or one (e. g. treason) which there was no remedy for at all in the civil courts, he was solemnly tried by the people under legislative forms, analogous to the English bill of attainder. Towards the end of the republic, however, there is a series of great statutes relating to the chief classes of crimes, and establishing a permanent court (quaestiones perpetuac) for the trial of each, and prescribing both procedure and punishment. The earliest of these is the Lex Calpurnia de repetundis, B.C. 149: among them are the statutes of Sulla (leges Corneliae) as to forgery and murder, of Pompey on parricidium, and of Julius and Augustus Caesar as to treason, [p. 1.564]adultery, peculatus, &c. (Inst. iv. tit. 18). Crimes not falling under these statutes were still tried by a legislative act of the whole people, or by a special quaestio or commission appointed for the particular case ( “extra ordinem quaerere,” Cic. de Fin. 2.16.54; pro Milone, 6.14).

Under the empire the quaestiones perpetuae were gradually superseded by special magistrates, but the criminal statutes by which they were established remained in full force: only prosecutions brought under them were termed judicia publica (Dig. 48, 1, 1). Other offences which had been constituted crimes in the course of history (by imperial rescripts or the writings of the jurists: Dig. 47, 19, 1, 2, pr. ; 47, 1, 3) were still said to be pursued extra ordinem (e.g. injuria and furtum, Dig. 47, 2, 92; Inst. 4.4, 10), and were called extraordinaria crimina (Dig. 47, 11) and sometimes privata crimina (Dig. 48, 19, 1, 3; 47, 11, 3, &c.). Whether the crimen was prosecuted by a publicum judicium or extra ordinem, the penalties varied considerably, though the judge's discretion seems to have been larger in the latter case (Dig. 47, 18, 1, 1, 2; 47, 20, 3, 2, &c.): among them were loss of life, of freedom, of civitas, infamia, imprisonment, and pecuniary fines. Condemnation in a publicum judicium always entailed infamia; but this was not the case in crimina extraordinaria, unless the wrongful act would have been punished thus had it been pursued by a civil action (Dig. 48, 1, 7). Crimes punished by death, loss of libertas, aquae et ignis interdictio, and deportatio were called capitalia (Inst. 4.18, 2). [CAPUT]

The subject of delict and crime is treated at length and well by Walter, Geschichte des röm. Rechts, book 5. § § 788-861: for an interesting discussion of the subject from the historical side, see chap. x. in Sir Henry Maine's Ancient Law. Cf. W. Rein, Das Criminalrecht der Römer, Leipzig, 1844.


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