nd became the ordinary legislature of the later Republic.
Now the decline of the Republic was exactly the period during which
the Quaestiones Perpetuae were established, so that the statutes
creating them were all passed by a legislative assembly which itself
could not, at its ordinary sittings, punish a criminal with death. It
followed that the Permanent Judicial Commissions, holding a delegated
authority, were circumscribed in their attributes and capacities by
the limits of the powers residing with the body which deputed them.
They could do nothing which the Assembly of the Tribes could not have
done; and, as the Assembly could not sentence to death, the Quaestiones
were equally incompetent to award capital punishment. The anomaly thus
resulting was not viewed in ancient times with anything like the
favour which it has attracted among the moderns, and indeed, while it
is questionable whether the Roman character was at all the better for
it, it is certain that the Roman Constitution was a great deal the
worse. Like every other institution which has accompanied the human
race down the current of its history, the punishment of death is a
necessity of society in certain stages of the civilising process.
There is a time when the attempt to dispense with it baulks both of
the two great instincts which lie at the root of all penal law.
Without it, the community neither feels that it is sufficiently
revenged on the criminal, nor thinks that the example of his
punishment is adequate to deter others from imitating him. The
incompetence of the Roman Tribunals to pass sentence of death led
distinctly and directly to those frightful Revolutionary intervals,
known as the Proscriptions, during which all law was formally
suspended simply because party violence could find no other avenue to
the vengeance for which it was thirsting. No cause contributed so
powerfully to the decay of political capacity in the Roman people as
this periodical abeyance of the laws; and, when it had once been
resorted to, we need not hesitate to assert that the ruin of Roman
liberty became merely a question of time. If the practice of the
Tribunals had afforded an adequate vent for popular passion, the forms
of judicial procedure would no doubt have been as flagrantly perverted
as with us in the reigns of the later Stuarts, but national character
would not have suffered as deeply as it did, nor would the stability
of Roman institutions have been as seriousl