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.

This later Roman view of the Sovereign's relation to justice certainly
assisted in saving modern societies from the necessity of travelling
through the series of changes which I have illustrated by the history
of the Quaestiones. In the primitive law of almost all the races which
have peopled Western Europe there are vestiges of the archaic notion
that the punishment of crimes belongs to the general assembly of
freemen; and there are some States--Scotland is said to be one of
them--in which the parentage of the existing judicature can be traced
up to a Committee of the legislative body. But the development of the
criminal law was universally hastened by two causes, the memory of the
Roman Empire and the influence of the Church. On the one hand
traditions of the majesty of the Caesars, perpetuated by the temporary
ascendency of the House of Charlemagne, were surrounding Sovereigns
with a prestige which a mere barbarous chieftain could never otherwise
have acquired and were communicating to the pettiest feudal potentate
the character of guardian of society and representative of the State.
On the other hand, the Church, in its anxiety to put a curb on
sanguinary ferocity, sought about for authority to punish the graver
mis