The Augustan Reforms

Julius Caesar is said to have planned a codification of the law, but he achieved no more than a few piecemeal reforms. His statute about recovery (repetundae), an immensely complex one incorporating specific rules for the behaviour of provincial governors and perhaps introducing the concept of a capital offence in this court, was passed in his first consulship (59 BC).⁴⁶ In his dictatorship he confined service as a juror or judge to senators and knights; he also reformed the tribunals on treason (maiestas) and violence.

Augustus claims in his Res Gestae that in both 19 and 11 BC he was offered by senate and people the position of ‘curator of laws and morals with supreme power and without colleague’ but did not accept any magistracy without precedent. Instead he carried out the measures required by the senate through his tribunician power⁴⁹ - that is, by using it to legislate through the plebeian assembly. His judicial measures seem to have formed part of the ensuing reforms, enacted before the emperor departed for Gaul in 16 BC.⁵⁰ His general statutes about procedure in public and private trials (the lex lulia de iudiciis publicis and the de iudiciis privatis) are only known to us through a scattering of references and allusions.

Under Augustus there were originally three divisions (decuriae) of judges and jury-members, from which it seems that two albums were drawn each year: one for private and one for public cases. Senators were not excluded and the remainder had equestrian status.⁵² A fourth division was then added from those of an inferior property qualification to judge private cases for less significant sums of money. A fifth was to be added by the emperor Gaius, but Galba is said to have refused to add a sixth.⁵³ The emperor may originally have selected the members of the divisions, but by the end of Augustus’ reign the task of drawing up the equestrian list, like that of reviewing membership of the senate, had been delegated to a commission of senators.⁵⁴ The minimum age for jurors was reduced to 25 years. Members of the albums were expected to be available for the whole period designated for judicial business - the so-called rerum actus. Augustus made available for judicial business 30 days among those allo­cated to recently created festivals - although not including those relating to the imperial family - and created a judicial vacation in November and December.⁵⁵

A uniform process for accusation was created that no longer required an initial summons before the president of the court but was effected by a written denunciation (libellus or subscriptio).

New laws were passed for existing crimes - electoral bribery (ambi­tus), embezzlement (peculatus), and violence (vis). The law about bribery actually mitigated the existing penalty, perhaps because the direct and indirect influence of the emperor on elections made extreme sanctions unnecessary. Otherwise, the changes seem to have been mainly a matter of identifying particular forms of illegal behaviour. Peculatus was extended by a lex Iulia de residuis to cover specifically the retention for private use of money received for a public purpose or in the course of a public transaction.⁶¹ The law or laws about violence distinguished between public - that is, against public authority - and private violence. The most interesting new inclusion in public violence was improper official brutality, the coercion of Roman citizens through bonds or flogging or their execution in defiance of provocatio (exceptions were made for the coercion of confessed or condemned criminals, of actors because of their degraded profession, and of those subject to military discipline).⁶² The explanation of the incorporation of such matter in a law about violence may be that behaviour of this kind might provoke a riot.

Under the Republic certain flagrant sexual offences had been prosecuted by aediles before an assembly,⁶⁴size=2 face=Arial> but our admittedly inadequate sources suggest that requital for the majority of offences had been left to fathers and husbands, who, preferably after a family council, were allowed to chastise women of the family and their lovers physically and even execute them.⁶⁵ There is some evidence for Republican laws which limited this sort of self-help.⁶⁶ Augustus’ lex lulia de adulteriis on the one hand had elaborate regulations restricting self-help, and on the other required such offences to be prosecuted by the father of the woman or her husband - the latter on pain of being prosecuted himself as a pimp if the offending pair were not accused. It should be noted that adulterium covered not only adultery but any kind of illicit sexual act (stuprum). Under the new regime a father could still kill his daughter and her lover, provided that he caught the pair in the act, that he killed both at once, that the act took place either in his own house or that of his son-in-law, and that the woman was legally either in his power (potestas) or that of her husband.⁶⁷ A husband, however, was forbidden to kill his wife, and could only kill his wife’s lover if they were caught in the house and the lover fell into one of the categories of degraded persons (infames), including slaves, freedmen of the family, actors, dancers, and prostitutes.⁶ Complaisant husbands were not permitted, as a famous letter of the younger Pliny shows.⁶⁹ In such processes slaves were permitted to give evidence against their masters and mistresses and many accusations arose through information laid by members of the household.⁷⁰ In this period many offences against individuals and their households were still not subject to prosecution in a criminal court, and Augustus’ innovation here can only be understood in the context of his other measures about marriage: it was a determined effort to reinforce the sanctity of the institution and the family home.

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