Permanent Tribunals: The Criminal Courts of the Late Republic and Early Principate

Our knowledge of these courts derives in part from sections of their statutes that survive in the Digest and other juristic sources, but, more importantly, from two kinds of contemporary source.

We have already discussed the ad hoc tribunals which were estab­lished from the middle Republic onwards. In the second century some of these were augmented or replaced by permanent tribunals: for example, by 142 BC a permanent tribunal concerning assassins (quaestio de sicariis) had come to exist in place of those that had from time to time been established earlier. This is one factor in the background to the law passed by Lucius Calpurnius Piso in 149 BC, establishing the first quaestio de repetundis.

The first form of suit provided for the quaestio de repetundis by Piso’s law was a traditional form of Roman civil action, the legis actio sacramento, which could only be performed by Roman citizens or perhaps their Latin allies. Thus, if other allies or foreigners wished to use this law, as most scholars believe, they could only do so through a Roman patron. Conviction led to simple restitution. The jurors seem to have been of senatorial rank; the panel was probably not very large.²⁹ This procedure underwent a revolutionary change through the statute we possess on the bronze fragments from Urbino, which, we can infer with some certainty, was passed in the second tribunate of Gaius Gracchus (122 BC). The statute was directed against the improper acquisition of property above a certain minimum sum through force, menaces, fraud, or the solicitation of favours, by Roman magistrates, senators, or senators’ sons. At this time official brutality was not covered, except in so far as it produced financial loss; nor was the unsolicited receipt of gifts or bribes.³⁰

Prosecution was described both as petitio (suit), a term appropriate to a civil action, and nominis delatio (denunciation), a term appropriate to the laying of information about a criminal to a tribunal of inquiry.

The procedure for assembling a jury was elaborate. The relevant praetor was required every year to select and register on an album (a white board) a panel of 450 jurors between the ages of 30 and 60, domiciled within a certain range of the city of Rome (the specific distance is not preserved). The positive qualifications for this panel are unclear, but it is likely that they were members of the order of knights (equites) and/or possessed appropriate property. Those excluded were senators and their relatives, those who had held a minor magistracy, and former senators who had been stripped of their rank because of their disgraceful conduct. The aim was clearly to eliminate those who were generally likely to have connections or sympathy with the accused. This was reinforced in the selection of the trial jury, where the defendant was required to disclose to the prosecutor anyone on the panel connected to him by kinship, as close as a cousin, as well as stepfathers, stepsons, and relatives by marriage, and members of the same guild or association (collegium or sodalitas). The prosecutor then offered the defendant 100 jurors, who were similarly in no way connected with himself:if they had been disclosed as connected with the defendant, that was the prosecutor’s affair. The defendant in turn selected 50 of these, or, if he failed to do so, the praetor acted for him. Throughout this procedure there was concern for publicity: the names of both the panel and the trial jury were made available for copying, and the praetor and the parties concerned took oaths in public that they were acting according to the law.³²

The praetor was required to use his authority to assist in the collec­tion of evidence and witnesses from Italy: up to 48 could be formally summonsed by the prosecutor and the production of public documents could be demanded.

As soon as a man was condemned, he either had to give guarantors to the praetor for the sum he was liable to pay or submit to the seizure of his property. In the estimation of damages (litis aestimatio) that followed, it was the jury’s task to determine the precise amount of damages to be awarded to each injured party. The damages were penal, double the loss sustained by each victim, except for offences committed before the passage of the law. Furthermore, successful prosecutors were offered rewards: non-Romans could receive full Roman citizenship if they wanted or alternatively the right of provocatio and freedom from military service and public duties in their own communities. Rewards, probably of this second kind, were also offered to Roman citizens.

In the next 50 years subsequent statutes changed and changed again the selection and composition of the jury until a compromise was reached in 70 BC, whereby the panels were composed one-third of senators and two-thirds of non-senators, selected from the album by lot and then alternate rejection by prosecution and defence. Around 100 BC the procedure for bringing charges was altered so that, after the original prosecution was made, further prosecutors might come forward; a jury was required to select the most appropriate one in a process called divinatio. The selected prosecutor was then allowed time to investigate the charges abroad (inquisitio). This led in practice to most cases being undertaken by Roman citizens who were practising advocacy. The provision for up to two extensions of the hearing without penalty was replaced by a com­pulsory two-part trial (comperendinatio). Moreover, a new procedure was devised to pursue money which the condemned man had passed on to others (quo ea pecunia pervenerit). These measures arguably led to more efficient and comprehensive prosecutions, but the part that might be played by non-Roman plaintiffs was reduced. The centrality of compen­sation for the injured party was diminished when the remit of the court was extended to the receipt of freely given bribes, including those directed at judicial corruption. Furthermore, in the late Republic various breaches of the rules laid down for the behaviour of Roman magistrates in the provinces were made liable to prosecution in this court, although they involved no financial loss to the allies.

Because the quaestio de repetundis was one of the easier means to procure the downfall of a high-ranking Roman, it was the subject of political controversy on the grounds that its procedures were themselves an avenue of corruption. It became, nevertheless, the model for other permanent criminal courts. It seems to have been imitated by Lucius Saturninus, when he introduced (in 103 or 100 BC) a tribunal to deal with the ‘diminution of the majesty of the Roman people’ (de maiestate populi Romani minuta), an all-embracing concept of political misconduct which was understood to cover unconstitutional behaviour, military incompetence, and treason. In Sulla’s legislation (82-1 BC) existing tribunals concerning assassins (de sicariis), poisoners (de veneficis), electoral bribery (de ambitu), and embezzlement (de peculatu) were reformed on this model, if they had not been before. New tribunals were established to deal with forgery (de falsis) and assault or insulting behaviour (de iniuriis), and shortly afterwards another for political violence (de vi). The court dealing with assassins was also made responsible for trials of parricidium (the term now meant the murder of either parent). Parricidium was characterized by the peculiar and dreadful sack penalty - precipitation into water in a sack together with acock, a viper, and a monkey. A law of Pompey (of 55 or 52 BC) extended this crime to cover the murder of any close relative or patron, but reserved the sack penalty for those who confessed or had been caught in the act. Sulla seems to have wanted the permanent tribunals to take over the exercise of criminal justice both over Rome and, where the crime was capital, over the communities of Italy too, especially in view of his restriction on the powers of tribunes, who were deprived of the right to legislate or prosecute before an assembly. In 70 BC the tribunes’ powers were restored, but we hear of only one prosecution carried out by a tribune and one by an aedile in the last 20 years of the Republic.³⁶

The rich, largely Ciceronian evidence for the late Republic allows us to fill out the picture of the operation of criminal tribunals. The presidency of the tribunals was allotted partly to praetors in their year of office, and partly to ‘judges of the inquiry’ (iudices quaestionis), senators just below the rank of praetor, who had formerly been aediles. After 70 BC there were three divisions of jurors: senators, knights (equites), and so-called tribunes of the treasury (tribuni aerarii) - wealthy men who did not possess equestrian status. Each album had perhaps 300 members. Equal numbers from these three albums were allotted to a case and were in turn reduced through alternate rejection by prosecution and defence, leaving a trial jury that varied from about 50 to about 75 (the 3 final panels were not required to be exactly equal). One law about a form of electoral corrup­tion introduced a variation on this, based on the voting districts for the assembly.

In courts other than the quaestio de repetundis there was no selection of a prosecutor, and the trial was expected to follow on the tenth day after the acceptance of the original accusation as legitimate, with the allotment of the jurors complete. Prosecution in political cases, such as those de repetundis or de maiestate, was undertaken usually by cadet members of the elite or by members of the equestrian order who specialized in advocacy (Cicero’s prosecution of Verres, when already a senator, was an excep­tion). The prosecutor was frequently either connected to those injured through friendship or patronage or an enemy of the defendant for personal reasons. Prosecution for murder tended to be carried out by professional advocates, usually on behalf of the kin of the victim. By the late Republic informing had become a profession, and prosecutors could also expect to receive evidence from members of the accused’s household, including slaves. Defence counsel were the best advocates and the most eminent senators that the defendant could summon to his aid.³⁷

The speeches of those prosecuting and those defending took place before the examination of witnesses. However, summaries of their testi­monies had to be deposited with the court beforehand and sealed with the seals of the jury. Witnesses were examined and cross-examined, and this was followed by a debate (altercatio) between the parties about the reliability of the evidence and its implications. Some defence testimonies were merely praise of the defendant’s character. In general, a witness statement was not a disinterested statement of fact. It was expected to come to a conclusion about the guilt or innocence of the accused and so to contribute directly to the prosecution or defence.³⁸ Equally, the advocates were not purely servants of the court. Prosecutors stood in a relation of patronage to their clients and frequently had a personal interest in the case, while defence counsel put at their client’s disposal not only their ability as advocates but the authority deriving from their status, which was granted to the client in friendship. A defence counsel was in effect at the same time a witness to character.

Defendants, their families, and friends wore mourning during the trial. This was not merely a visual aid for the conclusions of defence speeches but could also be deployed in last minute personal appeals to the jury as they voted. The vote of the jury was final in this period. Appeal to the assembly in cases of treason and violence was only introduced by Mark Antony after Caesar’s death in a measure that was rescinded but probably revived.³⁹ Similarly, a person could not normally be accused again on the same charge, unless it could be shown that the prosecution had been collusive, and therefore deliberately ineffective (praevaricatio).^4O

In a trial for recovery (de repetundis) a considerable time might elapse between prosecution and verdict, owing to the period that might be allocated to the prosecutor for investigation abroad and the two-part trial. Other procedures were swifter. Trials in quaestiones were normally confined to the ten hours between the first hour and the eleventh hour each day, to judge from Julius Caesar’s later regulations for his colony at Urso. There were limitations on the length of speeches in trials de repetundis from at least Sulla’s legislation onwards.⁴¹ However, the hearing of witnesses might be exceedingly time-consuming. In 52 BC, when Pompey set up special courts to deal with violence and bribery, he deliberately compressed the timetable. The first three days of each trial were devoted to the hearing of witnesses, and only at the end of this were the written versions of their testimonies sealed. Then on the fourth day the speeches were held - the prosecution being allotted two hours, the defence three - and the vote was held on the same day.⁴²

Even at the end of the Republic many offences now regarded as crimes remained matters for prosecution by injured parties through civil actions. The scope of the criminal law had been extended, however, and the new permanent criminal tribunals were a convenient way to pursue both offences against the community and certain offences against individ­uals. The adversarial procedure in these courts gave defendants maximum scope to escape the charge. Moreover, although the prosecutors were often skilled advocates and were given important privileges in collecting evidence, they lacked the support available to those of the present day. Nevertheless, an examination of known outcomes in the court for recov­ery (quaestio de repetundis) suggests a conviction rate of about 50 per cent.⁴⁵

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