The Origins of Criminal Justice
As elsewhere, the criminal law in Rome seems to have begun with the regulation of private retaliation and with measures to define and manage religious pollution.
It assumes a society built up of nuclear families under the authority of a paterfamilias, which are themselves part of wider agnatic groups. In laws ascribed to various kings we find the deliberate murderer of a free man defined as paricidas (best interpreted as kin-murderer) and thus liable to the same sort of reprisals as murder within the kinship group; involuntary homicide is expiated by the public sacrifice of a ram for the agnates of the deceased. Assaults by sons or daughters-in-law on parents, which are severe enough to cause a cry for help, lead to the consecration of the assailant to the gods of the parents.10 Whether it led to death or not, this placed the perpetrator outside the community of the kinship group or the people as a whole.Legal regulation was extended in the Twelve Tables, the law-code created - allegedly after popular pressure - in the first century of Republican government. However, this was still a society characterized by self-help and justice populaire in the pursuit of security and the repression of crime. In both civil and criminal suits it was for the injured party, if alive, and/or his family and friends to bring the accused before a magistrate. A thief, if he came by night or by day with a weapon, could be killed on the spot, but only after an outcry (plorare) was raised to summon friends and neighbours to assist and witness the justice of any such execution. For other forms of theft, where guilt was established after due legal procedure, a range of penalties was laid down, including subjection as a bondsman to the person robbed (addictio).11 For personal injury exact retaliation (talio, ‘an eye for an eye’) was prescribed for the maiming of a limb, unless an agreement for compensation was made, and appropriate financial penalties for lesser injuries (the parallel with the Old Testament is obvious, but we know also of a similar provision being inserted into a law-code for the Greek city of Thurii in southern Italy in the same period).12 All of these penalties assume actions brought by the injured parties similar to those ‘legis actiones’ used, for example, to claim property or sue for the repayment of a debt.
As for murder and other capital offences, there survive three allusions from the Tables to specific forms of execution - in cases of false testimony, arson, and the transportation of crops by magic - but nothing about procedure.13 It is the view of a number of scholars now, since the work of Wolfgang Kunkel, that capital crimes against individual citizens were also prosecuted by private actions, though not in a two-part action but solely before a magistrate, perhaps the consul (then called praetor) or the ‘investigator of homicide’ (quaestor parricidii).
The traditional view, by contrast, has been that such capital prosecutions took place in an elaborate procedure before a popular assembly, such as was also used to try crimes against the community as a whole. 14This issue can only be understood in the light of an interpretation of early Roman politics, but first it is important to register a feature of Roman society which is related to the justice populaire discussed earlier. A citizen was expected to cry for help to his neighbours (plorare) when confronted with a malefactor; he might similarly cry for help to his fellow citizens (provocare) when being (in his view) unjustly treated by someone in authority. Cicero claims that this custom went back to the regal period and this is certainly possible but, according to the accounts of the annalists many centuries later, it became important in the conflict between patricians and plebeians which developed after the establishment of the Republic. Provocatio is also associated with appeal to the tribunes of the plebs who were created for the first time in this period as spokesmen for the common people.15
Statutes entrenching provocatio as a legal right are ascribed by our sources to the first year of the Republic (509 BC) and the immediate aftermath of the deposition of the ten-man commission which created the Twelve Tables (449 BC). However, since a statute of 300 BC declaring execution in defiance of provocatio to be illegal was not backed by any specific sanction, modern scholarship has tended to be sceptical about the real existence of the two earlier statutes. Equally, Theodor Mommsen’s view that provocatio was an integrated part of any assembly trial is not borne out by the evidence for such trials. This does not mean, on the other hand, that before 300 BC provocatio did not exist and so restrain de facto a magistrate from using capital punishment in the face of popular disapproval.
In the late Republic provocatio was regarded as a cornerstone of the liberty of the individual Roman citizen. More specifically, it is likely that it influenced the nature of capital criminal trials in the early Republic. However, it would not necessarily have entailed that all such trials had to take place in a popular assembly, since a manifestly guilty criminal would not have found support among the people if he appealed for their help.1Cicero, when arguing that his enemy Clodius had not used due legal process to drive him into exile, describes what he claimed was the traditional form of process for capital trials before the assembly. A magistrate held three public investigations of the accused - where witnesses could be called and the accused had a right to reply - followed after a due interval by a final accusation and vote by a formal assembly on the same day. A municipal law from Bantia in southern Italy, apparently modelled on Roman practice, incorporates a similar process but with four, not three, preliminary investigations. A text in Livy suggests that in certain circumstances a single accusation and vote was sufficient.17 In the light of this evidence of variation in procedure, we cannot be sure what the earliest form of assembly trial was: perhaps that which was completed on a single day. Cicero also cites a clause in the Twelve Tables which forbade, first, the proposal of laws directed against individuals and, second, voting on the life (caput) of a citizen except in the ‘greatest’ or ‘very great assembly’. He took this to mean the military assembly (comitia centuriata) - which was where the final vote in a capital trial before an assembly took place in his day - one distributed into centuries of military origin and so organized that it privileged wealth and age. However, it might simply mean a well-attended (and so quorate) assembly.18 Moreover, there is evidence in Republican history for capital decisions in other assemblies, where the citizens were simply organized in voting divisions (tribus).
19 It is therefore probable that, when Cicero claimed that this clause of the Twelve Tables prescribed the only form of capital assembly trial in the past, this was a misinterpretation based on current practice.It may seem paradoxical that capital prosecutions before an assembly were conducted under the mature Republic by tribunes of the plebs, who were associated with defending the rights of the individual. The tribunes were, according to Roman tradition, created originally as spokesmen by the plebs during their revolutionary ‘secession’ from the patricians in 494 BC. To ensure the tribunes’ security, the plebs took an oath that their persons should be sacrosanct - that is, immune from physical violation: anyone who assaulted a tribune was liable to the vengeance of the plebs. From this immunity sprang the tribunes’ capacity to protect ordinary citizens (auxilium) and to block the actions of other magistrates (intercessio). However, there is also a tradition in the annals that they used this status to prosecute enemies of the plebs before assemblies of the plebs.20 It has been suggested that the clause that Cicero cited from the Twelve Tables was deliberately designed to nullify this practice and ensure that such prosecutions could not be made purely in the plebeian interest.21 This depends on the questionable assumption that Cicero understood the clause correctly. However, it is likely that, while trials before assemblies for offences against the community as a whole were a feature of Roman criminal justice from the early Republic, if not the regal period, the activities of tribunes contributed to the development of such trials and hence in due course it became customary for them, rather than other magistrates, to prosecute in capital cases. Who the prosecuting magistrates were before this task fell to the tribunes remains uncertain. An antique formula was known in the late Republic, in which the prosecutors for treason (perduellio) were a two-man commission (duumviri), but we do not know whether this was a special measure or the regular procedure of the early Republic.22
Amid so many uncertainties, at best some probable suggestions may be made about the procedure that had developed by the middle Republic.
First, it is likely that prosecutions of capital crimes, such as murder and arson, against private individuals were normally prosecuted by private initiative before a magistrate. If these led to provocatio (an appeal against the magistrate) then there might be recourse to an assembly either by the magistrate judging the case or a tribune who gave support to an appeal, but not otherwise. In public matters prosecutions before the assembly were mounted by tribunes and, in non-capital cases, by aediles. These might involve three or more investigative hearings before the final accusation and vote, if the nature of the offence needed to be established, but, if offence and penalty were clear-cut, could be completed in a day. There is also evidence for justice being exercised by the triumviri capitales, the board of three men in charge of the prison and executions. They had absorbed the function of an earlier board of three, the triumviri nocturni - which maintained the night watch against fires, thieves, runaway slaves, and other malefactors. They exercised against such people a form of summary justice or coercion - for runaway slaves, flogging and return to their masters. The triumviri are also attested as receiving denunciations for murder and carrying an offensive weapon. It is not clear how far they could proceed with these beyond accepting or rejecting the charge. They could perhaps incarcerate those who appeared guilty of murder, and even execute slaves or free men of inferior status.23Special circumstances required special measures. Mass lawbreaking against the public interest, such as treason by a group of people in war, could not be handled in a regular assembly trial. Here investigation of the crime and sentence were left to a magistrate, the senate, or a special commission, although it was usual for the assembly to give its fiat to the procedure either before or afterwards, thus avoiding any offence against the provocatio laws.
Ad hoc tribunals of investigation, normally called quaestiones, to deal with capital or non-capital public cases became common in the second century. These were established either by statute or decree of the senate and took the form of an inquiry by a magistrate or magistrates assisted by a panel of assessors (consilium), whom they themselves chose. Information might be laid before the tribunal, but formal prosecution was not necessary, as we see in accounts of the inquiries into the Bacchanals in 186 BC and the murders in the Silva Sila in 138 BC.24 Defendants, however, could speak themselves or be represented by advocates. The magistrates were empowered to reach a verdict, in which they might be influenced but not bound by their assessors’ views, and to pass sentence. This procedure, better suited to the unravelling of complex cases, is very similar to that which eventually came to prevail under the Principate and was then termed cognitio: indeed, Cicero uses this term for the investigation of the murders by the staff of the contractors in the Silva Sila.25 However, law does not necessarily develop in the simplest way. In fact, these ad hoc tribunals led in the late Republic to perhaps the most remarkable creation in Roman criminal law, the permanent tribunal of investigation (quaestio perpetua).3.