CRIMEN
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.
[
J.B.M]
