Introductory

As we saw in chapter 4, in the early republican period the prosecution and punishment of criminal offences fell within the jurisdiction of the magistrates and the comitia.

The term coercitio referred to the magistrates' power of enforcing obedience to their orders and of punishing offences by certain coercive or punitive measures. Acts of magisterial coercitio were preceded by no formal procedure and the punishments imposed were determined by the magistrates at their discretion. However, the magistrates' power to punish was subject to limitations imposed by custom and public opinion. Moreover, with respect to serious offences, the magistrates' power to punish was limited by various legislative enactments establishing the right of citizens to submit themselves to the judgement of the comitia (provocatio ad populum, ius provocationis}. When a citizen could appeal to the comitia against a sentence imposed upon him by a magistrate, the original sentence would always be appealed against and in time it became a mere preliminary to the real trial before the comitia. However, as only a magistrate had the right of bringing a charge against a citizen (as well as of summoning the assembly), it was necessary for an accuser to appeal to a magistrate in order that a formal accusation might be lodged against a person suspected of a crime. By the time of the Punic Wars we find that the magistrates still possessed the right to inflict minor penalties on their own responsibility, but that charges involving the penalty of death or loss of citizenship were tried in the comitia centuriata, and other charges of a relatively serious nature in the comitia tributa. Besides the comitia, the senate sometimes exercised the functions of criminal jurisdiction, although it could not inflict punishment on any citizen without the intervention of a magistrate, or the right of an appeal to the comitia.

From the second century BC special tribunals (quaestiones extraordinariae} began to be set up under the authority of the people or the senate to deal with certain criminal offences. These included various offences relating to abuse of power or dereliction of duty by state officials and other offences of a largely political nature. In all these cases consuls or praetors were assigned to conduct the investigation and preside over the court proceedings.

However, in the changed social and political conditions of the later Republic the existing system of criminal justice was no longer adequate. The concentration of large numbers of impoverished citizens in Rome during this period was accompanied by a rapid increase in crime, especially violent crime. As there was no regular police force in Rome, the detection of criminals was usually left to the injured parties or common informers, and this made the prosecution of offenders very difficult. Moreover, the business of calling together the comitia for the purpose of conducting a criminal investigation was cumbersome and time-consuming and, as the rules governing the trial process were not adequately defined, the relevant procedure often resulted in inconsistent verdicts. At the same time, as the number of offences, especially those of a political nature, increased, the practice of setting up extraordinary tribunals became increasingly inconvenient and inefficient.^{^[753]}[754] In response to these problems two measures were introduced: first, besides the praetor urbanus, responsibility for the prosecution and punishment of offences against public order, especially those committed by slaves, foreigners and citizens from the lower classes of society, was assigned to the tresviri capitales, low-ranking magistrates elected by the comitia tribute,secondly, permanent courts of justice, the quaestiones perpetuae, began to be established for the investigation and punishment of offences of a serious nature, especially offences threatening the security of the state. It was only with the establishment of these permanent courts that a closer regulation of criminal procedure was effected.^{^[755]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

Introductory

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