The Permanent Jury Courts

A turning-point in the history of Roman criminal law was the creation of standing courts (indicia publica or quaestiones perpetuae) authorized to adjudicate crimes of a specific nature.

The establishment of the quaestio repetundarum later inspired the creation of other standing courts by special statutory enactments ex post facto for individual crimes,^[466] especially crimes committed by high-ranking magistrates or army officers during performance of their duties. Thus, by the end of the second century bc, four permanent courts had been established: for extortion (de repetundis); for high treason (de maiestate)^[467]; for electoral corruption (de ambitu)^[468]; and for embezzle­ment of public money (de peculatu).^[469]

Under Sulla’s government (82-79 bc), the standing court system was extended further and the entire machinery of the quaestiones perpetuae was overhauled to place the administration of criminal justice on a more firm and consistent basis.

Generally, 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.^[479] It is germane to mention that the supreme jurisdiction of the comitia remained unaffected, in principle, by the establishment of the standing court system.

According to the statute of 149 bc that established the quaestio repetundarum, the members of this court were recruited exclusively from among the senators. As provincial magistrates invariably belonged to the senatorial nobility, the above rule could engender some favour for the provincial magistrate charged with extortion. A magistrate who was retired from office and charged with extortion had the benefit of a trial by his peers and his chances of acquittal were thus greatly increased. As new permanent courts were brought into existence, this would naturally hold good in their case also. As a result of the senate’s understandable reluctance to punish members of its own class, the new court system became a convenient instrument of self-protection for the senatorial oligarchy. It is thus unsurprising that the organi­zation of the jury courts surfaced as one of the most highly contested issues in the later Republic.

In 123-122 bc Gaius Gracchus, seeking to implement his basic policy aim of curbing the senate’s powers, procured the passing of a statute (lex Acilia) whereby the right of sitting as members of the quaestiones perpetuae was transferred from the senators to the equestrians. At first, eradicating the senatorial monopoly on the administration of criminal justice appeared to be a move in the right direction. It meant that if members of the senatorial nobility controlling the provincial admin­istration were accused of abuse of power, they would face a tribunal composed of equites. But in reality the transfer of control over the court system to the equites did not diminish the deleterious influence of factional politics on the administration of justice.

As previously noted, each quaestio perpetua was competent to deal only with a particular category of offence. The nature of this category was defined in the statutory enactment establishing the quaestio, as amended possibly by subsequent legislation. A court of this type embodied a considerable number of non-official members and was chaired by a president referred to as quaesitor. According to the system finally adopted, the president was normally a praetor. However, any other magistrate or even a private citizen (usually an ex-magistrate) invested with magisterial powers could be appointed president.^[481] The members of the court were not the president’s nominees but were chosen in accordance with the pro­visions of the statute establishing the particular quaestio. Generally, a large body of qualified citizens was summoned and a complicated process involving challenges on both sides reduced this body to the prescribed number.

The form of the proceedings in the permanent courts was essentially accusatorial, as opposed to inquisitorial.

The first step in a criminal prosecution was the postulatio, which constituted an application by a citizen to the magistrate directing a particular quaestio for permis­sion to instigate charges. This was an essential preliminary requirement, as the applicant might be precluded by law from laying charges against any person, or against the particular person he intended to prosecute.^[483] After permission to prosecute was granted, the accuser stated the name of the accused and the offence committed (nominis et criminis delatio) in a formal and written manner while the accused was present.^[484] The document containing the accusation (inscriptio) was then signed by the accuser and by all those supporting his claim (subscriptores). Moreover, the accuser had to swear an oath that he did not issue a false accusation out of malice (calumnia) or in collusion with the accused (praevaricatio).^[485] After the magistrate had formally accepted the indictment (nominis receptio), the accused became technically a defendant (reus) and the trial date was set.

During the trial, the accuser and the defendant dominated the scene, with their advocates and witnesses engaged in cross-examinations that were often rancor­ous.^[489] The jurors listened in silence, while the presiding magistrate was mainly responsible for the orderly progress of the proceedings.^[490] Both oral and documen­tary evidence was admissible.^[491] Witnesses (testes) testified under oath and were examined by their own side and cross-examined by the other.^[492] After all the evidence was presented and the closing speeches delivered, the magistrate convened the jury and placed the question of the defendant’s guilt or innocence to the vote. In early times the vote was open, but the enactment of the lex Cassia in 137 bc entailed the use of a secret ballot (per tabellas) to determine the court’s decision. Each juror was given a small tablet marked on one side ‘A’ (absolvo) and on the other ‘C’ (condemno). He then erased one or the other and cast the tablet into an urn (sitella). Jurors also had the third choice of ‘NL’ (not liquet: not proven) if they were unable to reach a decision.^[493] The verdict was determined by the majority of the votes: if there was a majority of ‘C’s the accused was pronounced guilty by the presiding magistrate; if the ‘A’s predominated or if there was an equality of votes, he was pronounced not guilty. If the majority of the jurors voted ‘non liquet’ the presiding magistrate announced the necessity for a more thorough investigation into the case and fixed a day for a new hearing (ampliatio).^[494]

As previously noted, the penalties imposed by the standing courts were specified in the statutes that instituted these courts, and liability to these penalties routinely followed upon conviction. There existed two kinds of penalties: capital and mon­etary. In theory, most crimes of a serious nature were capital but it was practically unknown to inflict the death penalty (poena mortis) on a Roman citizen deriving from a condemnation on a criminal charge in normal circumstances. The reason is that persons tried by these tribunals enjoyed a statutory right of fleeing into exile before the court pronounced its final sentence.^[495] When, as invariably happened, a condemned person invoked this right, a resolution passed by the vote of the people declared his legal status as an exile and interdicted him accordingly from using water and fire (aquae et ignis interdictio).^[496] The normal effect of this interdiction rendered the culprit liable to summary execution if discovered on Roman territory, which after the Social War (91-88 bc) covered the whole of Italy.^[497] Hence, condem­nation by a standing court on a capital charge virtually amounted to a sentence of banishment. It is feasible that some late republican statutes expressly substituted interdiction from fire and water with death as the penalty for certain crimes.

The modern observer can hardly fail to form an unfavourable appraisal of the Roman administration of criminal justice. A survey of civil law and procedure would fare better as this field early displayed logical categorization and generally produced adequate results. Roman criminal justice appears as haphazard, capri­cious, opportunistic and remote from the contemporary standards of equal protec­tion of the laws. Proceedings in the standing courts were cumbersome and trials could be protracted as cases were often heard more than once. Although a jury of less than a 100 members could grasp complicated evidence and assess the parties’ credibility better than a crowd of thousands, jurors were often as susceptible to corruption and bribery as the people in the turbulent iudicia populi. A less unfavourable appraisal of the Roman criminal justice system is formed if one contemplates the immense pressures of a rapidly expanding empire. Further, the adverse circumstances of a largely haphazard evolution engendered many new concepts and categories of criminal wrongdoing (such as crimes against public order and the security of the state, various types of fraud, corruption and abuse of office) that furnished the framework for the subsequent development of the criminal law.

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