The Romans divided crimes into public and private. Private crimes could be prosecuted only by the party injured, and were generally punished by pecuniary fines, as among the old Germanic nations.
Of public crimes the crimen laesae majestatis, or treason, was regarded as the greatest; and this was punished with death and with confiscation of goods, while the memory of the offender was declared infamous. Greater severity could scarcely be visited on a culprit. Treason comprehended conspiracy against the government, assisting the enemies of Rome, and misconduct in the command of armies. Thus Manlius, in spite of his magnificent services, was hurled from the Tarpeian Rock, because he was convicted of an intention to seize upon the government. Under the empire not only any attempt on the life of the Emperor was treason, but disrespectful words or acts. The criminal was even tried after death, that his memory might become infamous; and this barbarous practice was perpetuated in France and Scotland as late as the beginning of the seventeenth century. In England men have been executed for treasonable words. Besides treason there were other crimes against the State, such as a breach of the peace, extortion on the part of provincial governors, embezzlement of public property, stealing sacred things, bribery,most of which offences were punished by pecuniary penalties.
But there were also crimes against individuals, which were punished with the death penalty. Wilful murder, poisoning, and parricide were capitally punished. Adultery was punished by banishment, besides a forfeiture of considerable property; Constantine made it a capital offence. Rape was punished with death and confiscation of goods, as in England till a late period, when transportation for life became the penalty. The punishments inflicted for forgery, coining base money, and perjury were arbitrary. Robbery, theft, patrimonial damage, and injury to person and property were private trespasses, and not punished by the State. After a lapse of twenty years without accusation, crimes were supposed to be extinguished. The Cornelian, Pompeian, and Julian laws formed the foundation of criminal jurisprudence. This however never attained the perfection that was seen in the Civil Code, in which the full maturity of Roman wisdom was reached. The emperors greatly increased the severity of punishments, as was probably necessary in a corrupt state of society. After the decemviral laws fell into disuse, the Romans in the days of the republic passed from extreme rigor to great lenity, as is observable in the transition from the Puritan régime to our own times in the United States. Capital punishment for several centuries was exceedingly rare, and was frequently prevented by voluntary exile. Under the empire, again, public executions were frequent and revolting.
Fines were a common mode of punishment with the Romans, as with the early Germans. Imprisonment in a public jail was rare, the custom of bail being in general use. Although retaliation was authorized by the Twelve Tables for bodily injuries, it was seldom exacted, since pecuniary compensation was taken in lieu. Corporal punishments were inflicted upon slaves, but rarely upon citizens, except for military crimes; but Roman citizens could be sold into slavery for various offences, chiefly military, and criminals were often condemned to labor in the mines or upon public works. Banishment was common,aquae et ignis interdictio; and this was equivalent to the deprivation of the necessities of life and incapacitating a person from exercising the rights of citizenship. Under the emperors persons were confined often on the rocky islands off the coast, or in a compulsory residence in a particular place assigned. Thus Chrysostom was sent to a dreary place on the banks of the Euxine, and Ovid was banished to Tomi. Death, when inflicted, was by hanging, scourging, and beheading; also by strangling in prison. Slaves were often crucified, and were compelled to carry their cross to the place of execution. This was the most ignominious and lingering of all deaths; it was abolished by Constantine, from reverence to the sacred symbol. Under the emperors, execution took place also by burning alive and exposure to wild beasts; it was thus the early Christians were tormented, since their offence was associated with treason. Persons of distinction were treated with more favor than the lower classes, and their punishments were less cruel and ignominious; thus Seneca, condemned for privity to treason, was allowed to choose his mode of death. The criminal laws of modern European States followed too often the barbarous custom of the Roman emperors until a recent date. Since the French Revolution the severity of the penal codes has been much modified.
The penal statutes of Rome however, as Gibbon emphatically remarks, "formed a very small portion of the Code and the Pandects; and in all judicial proceedings the life or death of the citizen was determined with less caution and delay than the most ordinary question of covenant or inheritance." This was owing to the complicated relations of society, by which obligations are created or annulled, while duties to the State are explicit and well known, being inscribed not only on tables of brass, but on the conscience itself. It was natural, with the growth and development of commerce and dominion, that questions should arise which could not be ordinarily settled by ancient customs, and the practice of lawyers and the decisions of judges continually raised new difficulties, to be met only by new edicts. It is a pleasing fact to record, that jurisprudence became more just and enlightened as it became more intricate. The principles of equity were more regarded under the emperors than in the time of Cato. It is in the application of these principles that the laws of the Romans have obtained so high consideration; their abuse consisted in the expense of litigation, and the advantages which the rich thus obtained over the poor.
But if delays and forms led to an expensive and vexatious administration of justice, these were more than compensated by the checks which a complicated jurisprudence gave to hasty or partial decisions. It was in the minuteness and precision of the forms of law, and in the foresight with which questions were anticipated in the various transactions of business, that the Romans in their civil and social relations were very much on a level with modern times. It would be difficult to find in the most enlightened of modern codes greater wisdom and foresight than appear in the legacy of Justinian as to all questions pertaining to the nature, the acquisition, the possession, the use, and the transfer of property. Civil obligations are most admirably defined, and all contracts are determined by the wisest application of the natural principles of justice. Nothing can be more enlightened than the laws which relate to leases, to sales, to partnerships, to damages, to pledges, to hiring of work, and to quasi-contracts. The laws pertaining to the succession to property, to the duties of guardians, to the rights of wards, to legacies, to bequests in trust, and to the general limitation of testamentary powers were singularly clear. The regulations in reference to intestate succession, and to the division of property among males and females, were wise and just; we find no laws of entail, no unequal rights, no absurd distinction between brothers, no peculiar privileges given to males over females, or to older sons. Particularly was everything pertaining to property and contracts and wills guarded with the most jealous care. A man was sure of possessing his own, and of transmitting it to his children. In the Institutes of Justinian we see on every page a regard to the principles of natural justice: but moreover we find that malicious witnesses should be punished; that corrupt judges should be visited with severe penalties; that libels and satires should subject their authors to severe chastisement; that every culprit should be considered innocent until his guilt was proved.