Crime and Criminal Justice in the Archaic Era

In the earliest period of Roman history, many acts that in modern law are treated as offences against the state and prosecuted by public authorities were regarded as private wrongs that presented the injured party or their family with a rightful claim to seek vengeance on the wrongdoer.

Moreover, certain wrongful acts directed against the community as a whole were regarded as public crimes and were pursued and punished by the state itself. However, during this period the list of crimes was invariably short and embraced offences that directly threatened the existence and security of the community, such as treason (proditio, perduellio)^{^[444]} and murder (parricidium)^{^[445]}; and religious offences of a particularly heinous nature, such as blasphemy and other sacrilegious acts, which, unless duly punished and atoned for—as a rule by the sacrifice of the offender to the deity concerned (consecratio capitis)^{^[446]}—were liable to provoke the gods’ wrath against the entire community.^{^[447]}

With the exception of treason, which was always regarded as a public crime, there is uncertainty as to which offences were treated as crimes and which as private wrongs in the Law of the Twelve Tables. This legislation made some provision, the nature of which is unclear, on infaming incantations, which was treated as a capital offence. An adult who pastured his animals on another’s land or took another’s crops by night was to be sacrificed to the goddess Ceres, but a child might only be flogged and either made bondsman to the victim or fined. A person who willfully set fire to a building or an adjacent stack of hay was to be scourged and burned to death, but a fine or a flogging was sufficient penalty for an accidental fire.

It was considered lawful to slay a thief by night, or an armed thief in daytime, provided that this was not done privily. Thieves caught in the act were scourged and delivered as bondsmen to their victims if they were freemen; if they were slaves, they were scourged and hurled from the Tarpeian Rock. Children who committed theft were scourged at the praetor’s discretion and reparation was made. A corrupt judge or arbiter was subject to capital punishment and a person who gave false testimony was to be flung from the Tarpeian Rock. A point to note here is that from a very early period the Romans drew a distinction between the responsibility of an adult and that of a child, and between deliberate and negligent acts. In general, the penal provisions of the Twelve Tables combined archaic and more progressive aspects. Like all ancient legal systems, their starting-point was the notion of revenge, although priority was now given to retaliation through state-supervised procedures. The state intervened and imposed penalties only in cases of treason or certain religious offences that directly affected the welfare of the community. However, it is not until we come to the period of the late Republic that the list of recognized crimes (crimina publica) begins to resemble a system of criminal law.

According to Roman tradition, in the Monarchy era the king, who possessed all jurisdiction in principle, was accustomed to delegating his criminal jurisdiction in cases of treason to a pair of judges (duumviri perduellionis), who were specially appointed for each occasion, and in cases of murder to a pair of standing judges called quaestores parricidii. Regarding the capital sentences pronounced by either of these pairs of judges, the king had the discretion to allow an appeal to the people (provocatio ad populum), and could endorse their judgment on whether the offender should be killed or freed.^{^[448]} However, it is impossible to ascertain the entire truth in the traditional account.^{^[449]}

After the establishment of the Republic, jurisdiction over the major crimes was vested in the consuls.

The authority to adjudicate (cognitio) derived from their right of supreme coercion (coercitio maior) derived from their imperium. If a case of treason (perduellio) arose, the consuls nominated two judges (duoviri perduellionis) to conduct the inquiry and pronounce the sentence.^{^[450]}^{^[451]} In cases of murder (parricidium) the two quaestors acted as judges and in this capacity were designated quaestores parricidii^ The jurisdiction of the curule and plebeian aediles encompassed cases involving offences against the public order or public morals, and contraventions of statutory enactments. From the third century bc, jurisdiction in cases involving persons belonging to the lower classes and slaves was assigned to the tresviri capitales, lower magistrates who exercised police functions in Rome. A criminal prosecution could be based on a statutory enactment (such as the Law of the Twelve Tables), an established customary norm or an order of a state organ. Originally, criminal proceedings had an entirely inquisitorial nature. As soon as the commission of a crime captured a magistrate’s notice, he had the responsibility to initiate such investigation of the case as he deemed necessary. There was no such thing as a third party participating formally in the proceedings as prosecutor or accuser and producing evidence to establish the accused’s guilt. It was the duty of the magistrate to both instigate a charge against an individual and take steps to procure the necessary evidence and thus, in a sense, he acted as prosecutor as well as judge.

According to Roman tradition, the lex Valeria, a statute passed in the first year of the Republic, stipulated that a Roman citizen could not be slain pursuant to a magistrate’s sentence without a right of appeal to the people (provocatio ad populum). The Law of the Twelve Tables confirmed this rule that a capital sentence^{^[452]} pronounced by a magistrate could not be executed unless on appeal it had been ratified by the people.

A provision of the same statute rendered the comitia centuriata (therein referred to as comitiatus maximus) uniquely competent to deal with appeals against capital sentences. On the other hand, appeals against pecuniary sentences were tackled by the comitia tributa or the concilum plebis, depending on whether the relevant sentence was pronounced by a magistrate of the civitas or the plebs.^{^[453]}

However, we may observe after the enactment of the Law of the Twelve Tables the invariable practice of magistrates cum imperio to refrain from pronouncing a sentence that could be challenged on appeal to the people. The reason is that only the assembly of the centuries had authority to impose a death sentence once a person was declared guilty of a capital offence. Accordingly, criminal jurisdiction was exercised by magistrates alone only in cases involving less serious offences.^{^[454]}

The rules concerning appeals and the restrictions imposed on the magistrates’ judicial powers by legislation entailed the exercise of criminal jurisdiction by the Roman people in important cases during most of the republican period.^{^[455]} The procedure adopted in trials before the people (iudicia populi) is only discoverable in the descriptions of writers from a later date and a great part remains obscure. Sources reveal that the magistrate who resolved to impeach a citizen, after duly summoning the accused, held a trial in (at least) three successive public meetings (contiones). During these meetings he investigated the case and determined matters of fact and law based on the produced evidence.^{^[456]} If the accused was found guilty, the magistrate issued an order summoning the appropriate assembly to meet on the expiry of the regular interval of 3 market days (trinum nundinum).¹ During this period (3 market days amounted to 24 days) the citizens would have ample opportunities to discuss with one another the case and the issues it involved.

When the assembly congregated on the appointed day, the magistrate presented a motion in the form of a bill (rogatio) for confirmation of the verdict and sentence. In response to this motion and without any preliminary debate, those in favour of confirmation voted ‘condemno’ (‘I condemn’) while those against it voted ‘absolvo’ (‘I absolve’).^{^[457]}^{^[458]} If the majority in the assembly was in favour of condemnation, the presiding magistrate pronounced the sentence.name="_ftnref459" title="">^{^[459]} A notable feature of Roman legal procedure was the right of the accused to flee Rome as a voluntary exile at any time before the assembly’s final vote. Selection of this option entailed the enactment of a decree of outlawry, or interdiction from water and fire (aquae et ignis interdictio). This practically meant banishment accompanied by loss of citizenship and property. The individual declared an interdictus was deprived of legal protection and, if he returned to Rome without permission, could be killed by anyone with impunity.

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

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