Introduction
For the modern reader there is an immediate problem of definition about Roman criminal law. In current systems civil and criminal law are distinguished by procedure, by the source of the suit or prosecution, and by the nature of the judgment.
Criminal cases are characterized by the fact that a public authority prepares the charge, a particular form of trial is used, and judgment is given in favour of the state rather than those who were in fact wronged. At Rome too, while civil procedure was marked out by the distinctive two-part process discussed elsewhere in this volume, criminal cases had characteristic forms to be examined here. However, ancient Rome had no public prosecutor or prosecution service. That function was performed either (i) by certain magistrates, under the Republic tribunes or aediles; (ii) by wronged parties or their relatives; or (iii) by individual citizens for a variety of motives, under statutes which permitted any Roman citizen to bring an action on behalf of another citizen or the Roman people. As for judgments, a successful prosecution in a trial for ‘recovery’ in the quaestio de repetundis (regularly described in modern works in English as the ‘extortion court’) might involve both a penalty to the state and compensation, sometimes penal, to wronged individuals. Furthermore, the boundary between civil and criminal prosecutions was not that found nowadays under English and similar legal systems. Under the Republic and early Principate theft was a matter for prosecution by a civil action as a private wrong. Assault, battery, and personal affront were similarly private wrongs until Sulla’s statute on injuries (de iniuriis) which, although it changed the mode of trial, still seems to have provided for the penalty to be paid to the injured party. Similarly, violent expulsion from property first became a matter for specialized civil actions in the late Republic but was then subjected to criminal action under Augustus’ statute about violence.1 There is also the interesting borderline territory of administrative law, where transgression of public statutes or corruption or negligence in their execution might be prosecuted either in the form of a civil or criminal action.2In legal discussion criminal law is and was the poor relation of civil law.
In the Augustan period Ateius Capito wrote On Public Trials (De iudiciis publicis). He was followed in the ‘classical period’, two centuries later, by Marcianus, Macer, and Paul. There were also works on penalties (Depoenis) by Venuleius Saturninus, Modestinus, and Paul, while Callistratus wrote on criminal inquiries (De cognitionibus). Such works made an important contribution to Books 47-9 ofJustinian’s Digest. However, they seem to have been largely concerned with assembling relevant material rather than with general principles or critical analysis of the working of the criminal law. One reason for this may have been the very nature of the material. There never was a systematic criminal code. The Twelve Tables of the fifth century BC dealt for the most part with civil actions and, while provisions about crimes are to be found, they seem to be answers to particular problems rather than an attempt to mark out the area of criminal law. Augustus passed a statute about public trials (de iudiciispublicis), but this was an adjunct to a number of statutes on particular offences, some of them his own, others the work of Julius Caesar or legislators of the late Republic. This last period was indeed a very creative one in the history of the criminal law, as we shall see, but by the same token unstable owing to legal experimentation and the effect of powerful political conflicts.If we look for the principles that lay behind the original development of the criminal law, a central one is vindicatio, related to the modern Italian vendetta. Cicero regarded this as part of natural law, an instinct by which we repel from ourselves and those dear to us violence and insult through self-defence and revenge.3 Other natural principles are respect for the divine and for fatherland and parents - religio and pietas. While such principles are active from the earliest phases of the criminal law, as the Republic develops we see something which the great Greek historian of Rome, Polybius, saw as a critical function of the popular element in the Roman constitution during the second century BC - that is, the reward of virtue and the punishment of vice.
This, in his view, and in that of the Athenian lawgiver Solon, was an essential requirement if any community was to be coherent.4 Control of behaviour was even more necessary for a community that aspired to rule the whole Mediterranean. In spite of much criminal legislation, social coherence lapsed, thus contributing to the civil strife of the late Republic. It was, therefore, natural that Augustus, when he sought to legally buttress the monarchy that he had acquired by force, should reform and extend the criminal law as part of his commission from the senate to supervise the morality of the people.Before we examine the origins of the criminal law, it is worthwhile to consider briefly its topographical location. Talk of ‘courts’ may immediately mislead, as it gives the impression of confined indoor spaces. Jurisdiction in a civil lawsuit was exercised by the praetor originally in the open Comitium, then in a Forum, although the hearing might take place in a private house.5 Under the Republic, on the other hand, a indicium publicum of a criminal case was by definition a trial in public as well as a public trial. A magistrate prosecuted from the rostra in the Forum Romanum, before holding a vote there or in another place of assembly. The jury-courts that were introduced in the last two centuries of the Republic met in the open air in the neighbourhood of one of the tribunals in the Forum — the latter were little more than elevated platforms large enough to accommodate the chair of the presiding magistrate and space for a few essential aides. The seats of the jurors were also elevated,6 while the parties to the case sat or stood below on the Forum pavement. The jurors, if bored, might walk about, chat with each other or in groups, or send a slave to find out the time.7 By then the earliest basilicas were enclosing the Forum and it was even possible to watch what was going on from their upper stories.8 The Forum had indeed become an open-air theatre with several competing stages. When in 45 BC Julius Caesar tried king Deiotarus of Galatia in camera, Cicero as defending counsel complained about the unusual procedure, but it was a portent for the future.9 Under the Principate regular lawsuits were held inside the new, larger basilicas built in the reign of Augustus; other trials took place inside the senate-house or in an imperial residence. Proceedings thus came to resemble more closely those of a modern court, and this affected the atmosphere of trials and the techniques used by advocates.
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More on the topic Introduction:
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- Introduction
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- AVIAN CHOLERA