It is unnecessary to describe with any minuteness the mode of
administering criminal justice under the Roman Empire, but it is to be
noted that both its theory and practice have had powerful effect on
modern society. The Emperors did not immediately abolish the
Quaestiones, and at first they committed an extensive criminal
jurisdiction to the Senate, in which, however servile it might show
itself in fact, the Emperor was no more nominally than a Senator like
the rest. But some sort of collateral criminal jurisdiction had been
claimed by the Prince from the first; and this, as recollections of
the free commonwealth decayed, tended steadily to gain at the expense
of the old tribunals. Gradually the punishment of crimes was
transferred to magistrates directly nominated by the Emperor and the
privileges of the Senate passed to the Imperial Privy Council, which
also became a Court of ultimate criminal appeal. Under these
influences the doctrine, familiar to the moderns, insensibly shaped
itself that the Sovereign is the fountain of all Justice and the
depositary of all Grace. It was not so much the fruit of increasing
adulation and servility as of the centralisation of the Empire which
had by this time perfected itself. The theory of criminal justice had,
in fact, worked round almost to the point from which it started. It
had begun in the belief that it was the business of the collective
community to avenge its own wrongs by its own hand; and it ended in
the doctrine that the chastisement of crimes belonged in an especial
manner to the Sovereign as representative and mandatary of his
people. The new view differed from the old one chiefly in the air of
awfulness and majesty which the guardianship of justice appeared to
throw around the person of the Sovereign.
Public-domain text, read in full here on John Shaqi.
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