The emergence of the permanent court system

The first permanent court in Rome was introduced as a response to the need of revising the method of prosecuting the offence of extortion {crimen repetundarum) - an offence frequently committed by provincial magistrates against the people of their provinces.

As the quaestio de repetundis was controlled by the senate, juries often decided in favour of members of the senatorial nobility brought before them for investigation. A reorganisation of the court took place during the tribuneship of Gaius Gracchus with the passing, in 123 or 122 BC, of the lex Acilia de repetundis, introduced by Gracchus's colleague M. Acilius Glabrio. Under this enactment the senatorial juries were abolished and the right of serving as jurors in the court of the repetundae was transferred from the senate to the equestrian class. From that time it became the normal practice that the juries of this court were drawn by the praetor peregrinus from an album of 450 jurors who had not held any magistracy up to quaestor or tribune of the plebs and who were not members of senatorial families.^[759] As was noted in chapter 5, as a result of this and other measures introduced by Gracchus, the equestrian class began to play an important role in Roman political life.

The quaestio de repetundis, Rome's first standing court, provided the model for the creation of other permanent courts in the years that followed. These courts had the status of indicia publica, i.e. courts operating on the basis of a publicly verifiable procedure. Thus, by the close of the second century BC, four permanent courts had been established: for extortion in the provinces {de repetundis), for high treason {de maiestate), for electoral corruption {de ambitu) and for embezzlement of public funds {de peculatu),'^ib all manned by jurors drawn from the equestrian class. Each court was created by a separate legislative enactment which also prescribed the relevant offence, the penalties imposed upon those found guilty and the rules of procedure governing its operation (these rules could be modified by subsequent legislation). In general, the permanent courts were governed by rules similar to those governing the extraordinary courts and, like the latter, were regarded as operating under the authority of the people. It should be noted here that the supreme jurisdiction of the comitia remained unaffected in principle. The comitia could be called together, like before, to hear certain cases or to set up special tribunals for the investigation of offences falling outside the jurisdiction of the existing permanent courts.

An attempt to restore the senatorial class to its former position was made in 106 BC, when the consul Q. Servilius Caepio carried a law (lex Servilia Caepionis) altering the composition of the courts to the advantage of the senate.^[760] New Roman">[761] [762] But Caepio's legislation was short-lived, for in c.101 BC Cn.

As we saw in chapter 5, in the period following the conclusion of the Social War (88 BC) factional political strife intensified. For more than five years Rome was in a state of chaos, the formal rules and procedures of Roman justice were suspended and thousands perished in a bloodbath of political executions carried out without formal charges or trials. A measure of political stability was attained, although only temporarily, following the rise to power of L. Cornelius Sulla in 83 BC. During his dictatorship Sulla embarked on a series of reforms aimed at strengthening the position of the senate and at re-establishing order by repressing popular discontent. As part of his programme he restored the law-courts to the senate.^[764] At the same time he increased the number of senators from three hundred to six hundred by enrolling in the senate friendly equestrians, soldiers and distinguished members of Italian communities.^[765] Moreover, he reorganised the administration of justice by remodelling the existing permanent courts and establishing a number of new ones.

Under a lex Cornelia de repetundis the court of repetundae was retained. Furthermore, the quaestio de maiestate, which had been instituted by Satuminus in c.

Moreover, the court dealing with charges of electoral corruption (de ambitu) was retained, although under Sulla's own lex Cornelia de ambitu heavier penalties for this crime were introduced.^[768] As to homicide, a court for hearing cases of poisoning {quaestio de veneficis) seems to have been established before the time of Sulla.^[769] A court dealing with cases of assassination {quaestio de sicariis) had been introduced as early as 142 BC, but it appears to have operated only as a quaestio extraordinaria. Trials for parricide {parricidium) were usually held before the comitia. All three forms of homicide now came under Sulla's lex Cornelia de sicariis et veneficis of 81 BC, which also provided for the punishment of those who attempted to procure the unlawful conviction of a person under this enactment.title="">^[770] Moreover, under Sulla's lex Cornelia de iniuriis a permanent court was set up to deal with cases of assault and housebreaking.^[771] Sulla also established a quaestio de falsis, a new permanent court dealing with cases involving forgery of official documents, wills and the counterfeiting of money.^[772] Thus, after Sulla's reorganisation of the court system, there were seven standing courts in Rome: for extortion {repetundae), treason {maiestas), electoral corruption {ambitus), murder and poisoning {de sicariis et veneficis), embezzlement of public funds {peculatus), assault and housebreaking {de iniuriis) and fraud {de falsis).

As a result of Sulla's reforms criminal offences were defined more clearly and similar wrongdoings were subsumed under general offence categories for purposes of procedural convenience and efficiency. Furthermore, criminal liability was now imposed for certain types of wrongful conduct, such as assault and fraud, traditionally regarded as falling in the sphere of private law. Sulla's reforms furnished the basis for the subsequent development of Roman criminal law and some of the laws he enacted, such as the lex Cornelia de falsis and the lex Cornelia de sicariis et veneficis were still in force in the time of Justinian.^[777]