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 p368  Crimen

Article by George Long, M.A., Fellow of Trinity College
on pp368‑369 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

CRIMEN. Though this word occurs so frequently, it is not easy to fix its meaning. Crimen is often equivalent to accusatio (κατηγορία); but it frequently means an act which is legally punishable. In this latter sense there seems to be no exact definition of it by the Roman jurists. According to some modern writers, crimina are either public or private; but we have still to determine the notions of public and private. There was a want of precise terminology as to what, in common  p369 language, are called criminal offences among the Romans; and this defect appears in other systems of jurisprudence. Crimen has been also defined by modern writers to be that which is capitalis, as murder, &c.; delictum, that which is a private injury (privata noxa); a distinction founded apparently on Dig. 21 tit. 1 s17 § 15.

Delicts (delicta) were maleficia, wrongful acts (Dig. 47 tit. 1 s3), and the foundation of one class of obligationes: these delicts, as enumerated by Gaius (III.182), are furtum, rapina, damnum, injuriae; they gave a right of action to the individual injured, and intitled him to compensation. These delicts were sometimes called crimina (crimen furti, Gaius, III.197). Crimen therefore is sometimes applied to that class of delicta called privata (Dig. 47 1 De Privatis Delictis); and accordingly crimen may be viewed as a genus, of which the delicta enumerated by Gaius are a species. But crimen and delictum are sometimes used as synonymous (Dig. 48 tit. 19 s1). In one passage (Dig. 48 tit. 19 s5) we read of majora delicta (a term implying that thereº are minora delicta), which expression is coupled with the expression omnia crimina in such a way that the inference of crimen containing delictum is, so far as concerns this passage, necessary; for the omnia crimina comprehend (in this passage) more than the delicta majora.

Some judicia publica were capitalia, and some were not (Dig. 48 tit. 1 s2). Judicia, which concerned crimina, were not, for that reason only, publica. There were, therefore, crimina which were not tried in judicia publica. This is consistent with what is stated above as those crimina (delicta) which were the subject of actions. Those crimina only were the subject of judicia publica, which were made so by special laws; such as the Julia de adulteriis, Cornelia de sicariis et veneficis, Pompeia de parricidiis, Julia peculatus, Cornelia de testamentis, Julia de vi privata, Julia de ambitu, Julia repetundarum, Julia de annona (Dig. 48 tit. 1 s1). So far as Cicero (De Orat. II.25) enumerates causae criminum, they were causae publici judicii; but he adds (II.31), "criminum est multitudo infinita."º Again, infamia was not the consequence of every crimen, but only of those crimina which were "publici judicii". A condemnation, therefore, for a crimen, not publici judicii, was not followed by infamia, unless the crimen laid the foundation of an actio, in which, even in the case of a privatum judicium, the condemnation was followed by infamia; as furtum, rapina, injuriae (Dig. 48 tit. 1 s7).

Most modern writers on Roman law have considered delicta as the general term, which they have subdivided into delicta publica and privata. The division of delicta into publica and privata had partly its origin in the opinion generally entertained of the nature of the delict; but the legal distinction must be derived from a consideration of the form of obtaining redress for, or punishing, the wrong. Those delicta which were punishable according to special leges, senatus-consulta, and constitutiones, and were prosecuted in judicia publica by an accusatio publica, were more especially called crimina; and the penalties, in case of conviction, were loss of life, of freedom, of civitas, and the consequent infamia, and sometimes pecuniary penalties also. Those delicta not provided for as above mentioned, were prosecuted by action, and were the subjects of judicia privata, in which pecuniary compensation was awarded to the injured party. At a later period we find a class of crimina extraordinaria (Dig. 47 tit. 11), which are somewhat vaguely defined. They are offences which in the earlier law would have been the foundation of actions, but were assimilated, as to their punishment, to crimina publici judicii. This new class of crimina (new as to the form of judicial proceedings) must have arisen from a growing opinion of the propriety of not limiting punishment, in certain cases, to compensation to the party injured. The person who inquired judicially extra ordinem, might affix what punishment he pleased, within reasonable limits (Dig. 48 tit. 19 s13). Thus, if a person intended to prosecute his action, which was founded on maleficium (delict), for pecuniary compensation, he followed the jus ordinarium; but if he wished to punish the offender otherwise (extra ordinem ejus rei poenam exerceri (e?) velit), then he took criminal proceedings, "subscripsit in crimen" (Dig. 47 tit. 1 s3).

The forty-seventh book of the Digest treats first of delicta privata properly so called (Tit.1‑10), and then of extraordinaria crimina. The forty-eighth book treats of crimina, and the first title is De Publicis Judiciis. Compensation might be demanded by the heredes of the injured person, and of the heredes of the wrong-doer; but the heredes of the wrong-doer were not liable to a penal action (poenalis actio, Dig. 47 tit. 1 s1). Compensation could be sued for by the party injured: a penalty, which was not a direct benefit to the injured party, was sued for by the state, or by those to whom the power of prosecution was given, as in the case of the lex Julia de adulteriis, &c. In the case of delicta publica, the intention of the doer was the main thing to be considered: the act, if done, was not for that reason only punished; nor if it remained incomplete, was it for that reason only unpunished. In the case of delicta privata, the injury, if done, was always compensated, even if it was merely culpa.

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