Beacon Lights of History, Volume 03: Ancient Achievements. John Lord
of the city and empire extended, he was joined by a colleague. After the conquest of Sicily, Sardinia, and the two Spains, new praetors were appointed to administer justice in the provinces. The praetor held his court in the comitium, wore a robe bordered with purple, sat in a curule chair, and was attended by lictors.
The praetor delegated his power to three classes of judges, called respectively judex, arbiter, and recuperator. When parties were at issue about facts, it was the custom for the praetor to fix the question of law upon which the action turned, and then to remit to a delegate, or judge, to inquire into the facts and pronounce judgment according to them. In the time of Augustus there were four thousand judices, who were merely private citizens, generally senators or men of consideration. The judex was invested by the magistrate with a judicial commission for a single case only. After being sworn to duty, he received from the praetor a formula containing a summary of all the points under litigation, from which he was not allowed to depart. He was required not merely to investigate facts, but to give sentence; and as law questions were more or less mixed up with the case, he was allowed to consult one or more jurisconsults. If the case was beyond his power to decide, he could decline to give judgment. The arbiter, like the judex, received a formula from the praetor, and seemed to have more extensive power. The recuperators heard and determined cases, but the number appointed for each case was usually three or five.
The centumvirs constituted a permanent tribunal composed of members annually elected, in equal numbers, from each tribe; and this tribunal was presided over by the praetor, and divided into four chambers, which under the republic was placed under the ancient quaestors. The centumvirs decided questions of property, embracing a wide range of subjects. The Romans had no class of men like the judges of modern times; the superior magistrates were changed annually, and political duties were mixed with judicial. The evil was partially remedied by the institution of legal assessors, selected from the most learned jurisconsults. Under the empire the praetors were greatly increased; under Tiberius there were sixteen who administered justice, besides the consuls, six ediles, and ten tribunes of the people. The Emperor himself became the supreme judge, and he was assisted in the discharge of his judicial duties by a council composed of the consuls, a magistrate of each grade, and fifteen senators. At first, the duties of the praetorian prefects were purely military, but finally they discharged important judicial functions. The prefect of the city, in the time of the emperors, was a great judicial personage, who heard appeals from the praetors themselves.
In all cases brought before the courts, the burden of proof was with the party asserting an affirmative fact. Proof by writing was generally considered most certain, but proof by witnesses was also admitted. Pupils, lunatics, infamous persons, interested parties, near relatives, and slaves could not bear evidence, nor any person who had a strong enmity against either party. The witnesses were required to give their testimony on oath. In most cases two witnesses were enough to prove a fact. When witnesses gave conflicting testimony, the judge regarded those who were most worthy of credit rather than those who were most numerous. In the English courts the custom used to be as with the Romans, of refusing testimony from those who were interested; but this has been removed. On the failure of regular proof, the Roman law allowed a party to refer the facts in a civil action to the oath of his adversary.
Under the Roman republic there was no appeal in civil suits, but under the emperors a regular system was established. Under Augustus there was an appeal from all the magistrates to the prefect of the city, and from him to the praetorian prefect or even to the Emperor. In the provinces there was an appeal from the municipal magistrates to the governors, and from them to the Emperor, as Paul appealed from Festus to Caesar. Under Justinian no appeal was allowed from a suit which did not involve at least twenty pounds in gold.
In regard to criminal courts among the Romans during the republic, the only body which had absolute power of life and death was the comitia centuriata. The senate had no jurisdiction in criminal cases, so far as Roman citizens were concerned. It was only in extraordinary emergencies that the senate, with the consuls, assumed the responsibility of inflicting summary punishment. Under the emperors, the senate was armed with the power of criminal jurisdiction; and as the senate was the tool of the imperator, he could crush whomsoever he pleased.
As it was inconvenient, when Rome had become a very great city, to convene the comitia for the trial of offenders, the expedient was adopted of delegating the jurisdiction of the people to persons invested with temporary authority, called quaestors. These were finally established into regular and permanent courts, called quaestores perpetui. Every case submitted to these courts was tried by a judge and jury. It was the duty of the judge to preside and regulate proceedings according to law; and it was the duty of the jury, after hearing the evidence and pleadings, to decide on the guilt or innocence of the accused. As many as fifty persons frequently composed the jury, whose names were drawn out of an urn. Each party had a right to challenge a certain number, and the verdict was decided by a majority of votes. At first the judices were chosen from the senate, and afterward from the equestrians, and then again from both orders. But in process of time the quaestores perpetui gave place to imperial magistrates. The accused defended himself in person or by counsel.
The Romans divided crimes into public and private. Private crimes could be prosecuted only by the party injured, and were generally punished by pecuniary fines, as among the old Germanic nations.
Of public crimes the crimen laesae majestatis, or treason, was regarded as the greatest; and this was punished with death and with confiscation of goods, while the memory of the offender was declared infamous. Greater severity could scarcely be visited on a culprit. Treason comprehended conspiracy against the government, assisting the enemies of Rome, and misconduct in the command of armies. Thus Manlius, in spite of his magnificent services, was hurled from the Tarpeian Rock, because he was convicted of an intention to seize upon the government. Under the empire not only any attempt on the life of the Emperor was treason, but disrespectful words or acts. The criminal was even tried after death, that his memory might become infamous; and this barbarous practice was perpetuated in France and Scotland as late as the beginning of the seventeenth century. In England men have been executed for treasonable words. Besides treason there were other crimes against the State, such as a breach of the peace, extortion on the part of provincial governors, embezzlement of public property, stealing sacred things, bribery,–most of which offences were punished by pecuniary penalties.
But there were also crimes against individuals, which were punished with the death penalty. Wilful murder, poisoning, and parricide were capitally punished. Adultery was punished by banishment, besides a forfeiture of considerable property; Constantine made it a capital offence. Rape was punished with death and confiscation of goods, as in England till a late period, when transportation for life became the penalty. The punishments inflicted for forgery, coining base money, and perjury were arbitrary. Robbery, theft, patrimonial damage, and injury to person and property were private trespasses, and not punished by the State. After a lapse of twenty years without accusation, crimes were supposed to be extinguished. The Cornelian, Pompeian, and Julian laws formed the foundation of criminal jurisprudence. This however never attained the perfection that was seen in the Civil Code, in which the full maturity of Roman wisdom was reached. The emperors greatly increased the severity of punishments, as was probably necessary in a corrupt state of society. After the decemviral laws fell into disuse, the Romans in the days of the republic passed from extreme rigor to great lenity, as is observable in the transition from the Puritan régime to our own times in the United States. Capital punishment for several centuries was exceedingly rare, and was frequently prevented by voluntary exile. Under the empire, again, public executions were frequent and revolting.
Fines were a common mode of punishment with the Romans, as with the early Germans. Imprisonment in a public jail was rare, the custom of bail being in general use. Although retaliation was authorized by the Twelve Tables for bodily injuries, it was seldom exacted, since pecuniary compensation was taken in lieu. Corporal punishments were inflicted upon slaves, but rarely upon citizens, except for military crimes; but Roman citizens could be sold into slavery for various offences, chiefly military, and criminals were often condemned to labor in the mines or upon public works. Banishment was common,–aquae et ignis interdictio; and this was equivalent to the deprivation of the necessities of life and incapacitating a person from exercising the rights