Private criminal law and public criminal law

A delict was a private wrong and yet the actio poenalis served to penalize the wrongdoer. It is obvious, therefore, that the private actio poenalis discharged what we would consider to be the proper function of a criminal prosecution.

The term "crimen" was used to designate offences prosecuted in the public interest and punishable by a public penalty upon accusation and subsequent condemnation in a special court and according to a strict and largely State-controlled procedure, differing considerably from the one that governed civil trials.¹¹’⁴ The list of such offences was very small at first; it comprised only a number of acts that were regarded as affecting the community at large particularly severely: treason (perduellio) and certain sacral wrongs, later also murder and crimes involving violence. The lesser forms of criminality were covered by what Kunkel/Kelly refer to as "private criminal law":^{[4678] [4679] punishment was to be inflicted in the course of civil actions. Just as in the early English common law,[4680] the State thus relied on the initiative of the aggrieved party to get the wheels ofjustice rolling. In Rome this policy was maintained even when, in the course of the later Republic, and under the early Principate, the number of crimes was increased drastically, the system of criminal tribunals rigorously reformed, and the efficiency of the administration of criminal justice generally improved; for, by that time, the private penal actions were already firmly entrenched and remained in force throughout the entire classical period. Even in the genuinely criminal proceedings, however, the system of privately instituted prosecution was the rule: apart from the aggrieved party,[4681] [4682] even the quivis ex populo could initiate the trial and thus assume the role of (private) prosecutor. Of course, the average Roman citizen did not usually do so out of a genuine desire to promote the public interest—the criminal statutes tended to promise consider­able rewards for victorious prosecutors.}

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