If the Quaestiones Perpetuae had had a longer history, theywould doubtless have come to be regarded as a distinctinstitution, and their relation to the Comitia would have seemedno closer than the connection of our own Courts of Law with theSovereign, who is theoretically the fountain of justice. But theimperial despotism destroyed them before their origin had beencompletely forgotten, and, so long as they lasted, thesePermanent Commissions were looked upon by the Romans as the meredepositaries of a delegated power. The cognisance of crimes wasconsidered a natural attribute of the legislature, and the mindof the citizen never ceased to be carried back from theQuaestiones, to the Comitia which had deputed them to put intoexercise some of its own inalienable functions. The view whichregarded the Quaestiones, even when they became permanent, asmere Committees of the Popular Assembly -- as bodies which onlyministered to a higher authority -- had some important legalconsequences which left their mark on the criminal law to thevery latest period. One immediate result was that the Comitiacontinued to exercise criminal jurisdiction by way of bill ofpains and penalties, long after the Quaestiones had beenestablished. Though the legislature had consented to delegate itspowers for the sake of convenience to bodies external to itself,it did not follow that it surrendered them. The Comitia and theQuaestiones went on trying and punishing offenders side by side;and any unusual outburst of popular indignation was sure, untilthe extinction of the Republic, to call down upon its object anindictment before the Assembly of the Tribes.
One of the most remarkable peculiarities of the institutionsof the Republic is also traceable to this dependance of theQuaestiones on the Comitia. The disappearance of the punishmentof death from the penal system of Republican Rome used to be avery favourite topic with the writers of the last century, whowere perpetually using it to point some theory of the Romancharacter or of modem social economy The reason which can beconfidently assigned for it stamps it as purely fortuitous. Ofthe three forms which the Roman legislature successively assumed,one, it is well known-the Comitia Centuriata -- was exclusivelytaken to represent the State as embodied for military operations.
The Assembly of the Centuries, therefore, had all powers whichmay be supposed to be properly lodged with a General commandingan army, and, among them, it had authority to subject alloffenders to the same correction to which a soldier renderedhimself liable by breaches of discipline. The Comitia Centuriatacould therefore inflict capital punishment. Not so, however, theComitia Curiata or Comitia Tributa, They were fettered on thispoint by the sacredness with which the person of a Roman citizen,inside the walls of the city, was invested by religion and law;and, with respect to the last of them, the Comitia Tributa, weknow for certain that it became a fixed principle that theAssembly of the Tribes could at most impose a fine. So long ascriminal jurisdiction was confined to the legislature, and solong as the assemblies of the centuries and of the Tribescontinued to exercise co-ordinate powers, it was easy to preferindictments for graver crimes before the legislative body whichdispensed the heavier penalties; but then it happened that themore democratic assembly, that of the Tribes, almost entirelysuperseded the others, and became the ordinary legislature of thelater Republic. Now the decline of the Republic was exactly theperiod during which the Quaestiones Perpetuae were established,so that the statutes creating them were all passed by alegislative assembly which itself could not, at its ordinarysittings, punish a criminal with death. It followed that thePermanent judicial Commissions, holding a delegated authority,were circumscribed in their attributes and capacities by thelimits of the powers residing with the body which deputed them.
They could do nothing which the Assembly of the Tribes could nothave done; and, as the Assembly could not sentence to death, theQuaestiones were equally incompetent to award capital punishment.
The anomaly thus resulting was not viewed in ancient times withanything like the favour which it has attracted among themoderns, and indeed, while it is questionable whether the Romancharacter was at all the better for it, it is certain that theRoman Constitution was a great deal the worse. Like every otherinstitution which has accompanied the human race down the currentof its history, the punishment of death is a necessity of societyin certain stages of the civilising process. There is a time whenthe attempt to dispense with it baulks both of the two greatinstincts which lie at the root of all penal law. Without it, thecommunity neither feels that it is sufficiently revenged on thecriminal, nor thinks that the example of his punishment isadequate to deter others from imitating him. The incompetence ofthe Roman Tribunals to pass sentence of death led distinctly anddirectly to those frightful Revolutionary intervals, known as theProscriptions, during which all law was formally suspended simplybecause party violence could find no other avenue to thevengeance for which it was thirsting. No cause contributed sopowerfully to the decay of political capacity in the Roman peopleas this periodical abeyance of the laws; and, when it had oncebeen resorted to, we need not hesitate to assert that the ruin ofRoman liberty became merely a question of time. If the practiceof the Tribunals had afforded an adequate vent for popularpassion, the forms of judiciAl procedure would no doubt have beenas flagrantly perverted as with us in the reigns of the laterStuarts, but national character would not have suffered as deeplyas it did, nor would the stability of Roman institutions havebeen as seriously enfeebled.
