The Criminal Trial

In the last century of the Republic offences of a serious nature fell within the jurisdiction of the standing courts (quaestiones perpetuae)·. less serious offences were dealt with in a summary fashion by lower magistrates, the tresviri capitales.

During the early years of the Principate the criminal jurisdiction of the tresviri capitales was taken over by imperial officials, the vigiles, acting under the supervision of the praefectus vigilum^V) The quaestiones perpetuae continued to function following the reorganisation of the standing court system by the lex lulia iudiciorum publicorum of Augustus in 17 BC. This law dealt with matters concerning the composition of the standing courts, the rights of the parties and their advocates and the conduct of the trial. Under the same enactment the participation of the equites as jurors in criminal trials was warranted and increased, and the minimum age for jury service was lowered from thirty to twenty-five. Moreover, about 18 BC two new tribunals were added to the existing ones: the quaestio de adulteriis, created under Augustus's lex lulia de adulteriis,^{^[1012]} and the quaestio de annona, established by the lex lulia de annona. Within the jurisdiction of the first court fell cases involving adultery (adulterium), extra-marital relationships involving women of a high social standing and procurement.^{^[1013]} The second dealt with accusations against merchants engaged in unfair market practices relating to the transportation and sale of foodstuffs.^{^[1014]} Further changes in the system of the quaestiones perpetuae were introduced by a number of senatorial resolutions issued during this period.

Although the system of the quaestiones perpetuae on the whole guaranteed a relatively well-balanced handling of criminal cases, it had several deficiencies which were not adequately addressed by the Augustan legislation and subsequent senatorial resolutions.

As the crimes that fell within the jurisdiction of the standing courts were rather narrowly defined, offences which did not correspond to the prescribed definitions could not be dealt with by these courts. A further shortcoming of the system had to do with the fact that, as the courts sat only in Rome, it was impracticable to bring all citizens accused of serious crimes to the capital for trial. Moreover, the penalties imposed for offences tried by the standing courts were often considered to be too mild and therefore disproportionate to the gravity of the offences committed. In addition to that, proceedings in the jury-courts were expensive and laborious and, since cases not infrequently had to be heard more than once, trials could drag on for a very long time.^{^[1015]}Thus, from the early years of the Principate the system of the quaestiones perpetuae began to lose ground and the so-called extraordinary criminal procedure {cognitio extra ordinem) became more and more important. During this period new crimes emerged which fell outside the scope of the statutes by which the standing courts had been established. Many of these crimes were offences which in the past were treated as private delicts; others were offences of a special nature (such as certain offences committed by slaves or foreigners) which lacked precise statutory definitions. These new crimes were dealt with by imperial tribunals following the extra ordinem procedure.^{^[1016]} As more and more offences came within the jurisdiction of the extraordinary courts, the quaestiones perpetuae faded into the background and finally disappeared in the closing years of the second century AD.^{^[1017]} Under the new system the emperor and imperial officials used their administrative powers to decide criminal cases directly either in the first instance or on appeal.^{^[1018]} Besides the extraordinary court of the emperor, the courts of the praefectus urbi and the praefectus vigilum (for offences committed within the city limits of Rome), ^{^[1019]} the court of the praefectus praetorio (for offences committed in Italy),^{^[1020]}color=black face="Times New Roman">[1021] and the court of the praefectus annonae,'⁰⁹ the senate also developed into a court of justice dealing with offences committed by senators and members of the upper classes.^{^[1022]} Moreover, criminal jurisdiction was assigned by decree of the senate or imperial constitution to the consuls and praetors who decided cases extra ordinem with the help of a body of advisers (consilium).

In the senatorial provinces criminal justice was administered by the governors, whilst in the imperial ones it was administered by imperial officials acting as representatives of the emperor (legati Augusti). The legati, in their capacity as military commanders, had the power to impose on offenders all kinds of punishment, including the death penalty (ius gladii). Governors of senatorial provinces, on the other hand, could not impose the death penalty on Roman citizens unless the latter were given the opportunity to have their case heard by a court in Rome. But as the number of Roman citizens living in the provinces steadily increased, this practice appears to have been abandoned and the ius gladii was gradually granted to all provincial governors. In conducting a trial a governor commonly followed the extra ordinem procedure and, like the emperor in Rome, was assisted by a body of advisers (consilium). A possible exception to the finality of a provincial governor's decision lay with the emperor who could receive any appeal, even an appeal from a person who was not in theory entitled to raise one.

We saw in chapter 6 that the regular jury-courts were not allowed to deal with crime inquisitorially, i.e., they were not allowed to start a criminal investigation on their own initiative and to make use of any means at their disposal in order to arrive at a verdict. Proceedings were initiated by a private citizen - not a state organ - who assumed the role of the accuser by filing a charge against the alleged offender with the magistrate who presided over the relevant standing court. The new system of the cognitio extra ordinem, however, had a predominantly inquisitorial character. Although the victim of a crime was still allowed to act as an accuser, criminal prosecutions were now started by the state, and the magistrate in charge took a much more active part in the trial process than the president of a regular jury-court."¹ In a trial extra ordinem there were at first no limitations placed upon the magistrate in arriving at his knowledge (cognitio) of the crime, and the outcome depended largely upon the peculiarities of the individual case.

By contrast with the system of the quaestiones perpetuae in which the guilt or innocence of the accused was determined by the jury, both the verdict and the sentence were now determined by the magistrate at his discretion. As there were no fixed penalties, the magistrate was free to impose any penalty he thought fit by considering, among other things, the circumstances of the offence, the personal condition of the offender and the social class to which he belonged. In the course of time, however, a system of norms emerged based on imperial mandates and rescripts,^{^[1023]}[1024][1025][1026] as well as on juristic opinions, that fixed in a more definite way the scope of the relevant offences and matters relating to criminal procedure and punishment. As to the ancient institution of the provocatio adpopulum, with the disappearance of the comitia in the early Principate period and the establishment of imperial control over the criminal justice system, this turned into the appellatio ad imperatorem.''³The latter term was used to denote an appeal addressed to the emperor or a higher court against a sentence pronounced by a lower court or magistrate."⁴

The senatorial cognitio extra ordinem

During the Republic the senate did not have independent criminal jurisdiction. Its role in the administration of justice was limited to setting up, under certain circumstances, temporary courts of inquiry {quaestiones extraordinariae) and to introducing, in times of emergency, whatever measures were deemed necessary for the security of the state. From the early years of the Principate period, however, the senate began to operate as a court of justice in its own right {cognitio senatus). Within its jurisdiction fell offences involving a threat or injury to the Roman state and offences involving abuse of power perpetrated by senators and, sometimes, equites."⁵ In the time of Tiberius the jurisdiction of the senate was extended over a wide range of crimes, including adultery, murder and forgery, committed by senators or members of the ordo senatorius."⁶ This practice continued until the later part of the second century AD, although not without exceptions.

The rules of procedure under which cases were tried by the senate were similar to those governing the ordinary courts, although many of the formalities associated with the regular trial process were dispensed with. Proceedings were initiated by an application by the person concerned for leave to bring an accusation {postulatio) and the formal announcement of the charge and the name of the accuser {delatio). The magistrate to whom the application was made then formally registered the name of the accused {nominis receptio) and the day was fixed on which the trial was to begin. On the appointed day the senate was convoked and the trial began under the supervision of a higher magistrate, usually a consul. After all the evidence had been presented and the arguments of the parties heard the senators decided, by vote, on the question of guilt or innocence of the accused as well as on the form and amount of punishment that was to be imposed if the accused was found guilty. The judicial functions of the senate were curtailed during the reign of Commodus (ISO- 192 AD) and by the early third century AD the senate had ceased to operate as a court of justice. ^{^[1027]}[1028]

<< | >>

↑

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

The Criminal Trial

More on the topic The Criminal Trial: