Criminal Law and Criminal Justice
(1)
Faculty of Law, University of Auckland, Auckland, New Zealand
4.1 Introduction
In modern law a distinction is drawn between delict (or tort) and crime, or between the delictual (or tortious) and criminal aspects of an act. In general, the distinction is between an act that violates an individual’s rights to his person, property or reputation and one that endangers the order or security of the state. The difference between delict and crime corresponds to the difference between the two principal objects the law is concerned with, namely redress and punishment. With respect to delict, the chief aim of the law is to compensate the injured party rather than punish the wrongdoer. With respect to crime, on the other hand, the principal aim of the law is to punish the wrongdoer with a view to preventing him and others from committing the same or similar crimes in the future and/or satisfying the public sentiment that wrongdoing must be met with retribution. As previously noted, in Roman law the corresponding distinction was between delictum and crimen. The term delictum or maleficium denoted an unlawful act that caused loss or injury to the person, property, honour or reputation of another. From this act there arose an obligation on the part of the wrongdoer to pay a penalty or compensate the victim for the harm suffered. The word crimen, on the other hand, signified a wrongful act that was directed against the state, or the community as a whole, and was prosecuted and punished by state organs. However, in Roman law the two concepts to some extent overlapped, since the law of delicts, besides being concerned with compensation for the victim, sought also to inflict punishment on the wrongdoer. This can be explained on the ground that the relevant penalty (poena) originated as the formalization of the primitive right to exact revenge and was imposed as a punishment on the wrongdoer that went not to the state, as in the ordinary criminal process, but to the victim. In Roman law the distinction between delict and crime mainly derived from the fact that with respect to the former case the victim could recover compensation and inflict punishment on the wrongdoer by means of a private action in civil proceedings and not through prosecution by state organs.
It should be noted that the criminal law holds a secondary place on the Roman legal scene. It was private law to which the Roman jurists devoted their main interest, and it was the private law that gave Roman law its great importance as a basis of much of modern law. It was not until the second century ad that Roman juridical literature began giving serious attention to matters of criminal law. Prior to that we have to rely mainly on literary sources, whose focus of attention is largely on the upper social classes. The test was whether a criminal case made a good story, and the best stories were those involving persons in positions of power. This leaves us in the dark as to how the ordinary citizen fared, in particular when prosecuted for common (as opposed to political) offences. Nevertheless, even with this qualification, the sources give valuable insight into how the Romans thought about crime and criminal justice.
4.2 Crime and Criminal Justice in the Archaic Era
In the earliest period of Roman history, many acts that in modern law are treated as offences against the state and prosecuted by public authorities were regarded as private wrongs that presented the injured party or their family with a rightful claim to seek vengeance on the wrongdoer. Moreover, certain wrongful acts directed against the community as a whole were regarded as public crimes and were pursued and punished by the state itself. However, during this period the list of crimes was invariably short and embraced offences that directly threatened the existence and security of the community, such as treason (proditio, perduellio)1 and murder (parricidium)2; and religious offences of a particularly heinous nature, such as blasphemy and other sacrilegious acts, which, unless duly punished and atoned for—as a rule by the sacrifice of the offender to the deity concerned (consecratio capitis)3—were liable to provoke the gods’ wrath against the entire community.4
With the exception of treason, which was always regarded as a public crime, there is uncertainty as to which offences were treated as crimes and which as private wrongs in the Law of the Twelve Tables. This legislation made some provision, the nature of which is unclear, on infaming incantations, which was treated as a capital offence. An adult who pastured his animals on another’s land or took another’s crops by night was to be sacrificed to the goddess Ceres, but a child might only be flogged and either made bondsman to the victim or fined. A person who willfully set fire to a building or an adjacent stack of hay was to be scourged and burned to death, but a fine or a flogging was sufficient penalty for an accidental fire. It was considered lawful to slay a thief by night, or an armed thief in daytime, provided that this was not done privily. Thieves caught in the act were scourged and delivered as bondsmen to their victims if they were freemen; if they were slaves, they were scourged and hurled from the Tarpeian Rock. Children who committed theft were scourged at the praetor’s discretion and reparation was made. A corrupt judge or arbiter was subject to capital punishment and a person who gave false testimony was to be flung from the Tarpeian Rock. A point to note here is that from a very early period the Romans drew a distinction between the responsibility of an adult and that of a child, and between deliberate and negligent acts. In general, the penal provisions of the Twelve Tables combined archaic and more progressive aspects. Like all ancient legal systems, their starting-point was the notion of revenge, although priority was now given to retaliation through state-supervised procedures. The state intervened and imposed penalties only in cases of treason or certain religious offences that directly affected the welfare of the community. However, it is not until we come to the period of the late Republic that the list of recognized crimes (crimina publica) begins to resemble a system of criminal law.
According to Roman tradition, in the Monarchy era the king, who possessed all jurisdiction in principle, was accustomed to delegating his criminal jurisdiction in cases of treason to a pair of judges (duumviri perduellionis), who were specially appointed for each occasion, and in cases of murder to a pair of standing judges called quaestores parricidii. Regarding the capital sentences pronounced by either of these pairs of judges, the king had the discretion to allow an appeal to the people (provocatio ad populum), and could endorse their judgment on whether the offender should be killed or freed.5 However, it is impossible to ascertain the entire truth in the traditional account.6
After the establishment of the Republic, jurisdiction over the major crimes was vested in the consuls. The authority to adjudicate (cognitio) derived from their right of supreme coercion (coercitio maior) derived from their imperium. If a case of treason (perduellio) arose, the consuls nominated two judges (duoviri perduellionis) to conduct the inquiry and pronounce the sentence.7 In cases of murder (parricidium) the two quaestors acted as judges and in this capacity were designated quaestores parricidii.8 The jurisdiction of the curule and plebeian aediles encompassed cases involving offences against the public order or public morals, and contraventions of statutory enactments. From the third century bc, jurisdiction in cases involving persons belonging to the lower classes and slaves was assigned to the tresviri capitales, lower magistrates who exercised police functions in Rome. A criminal prosecution could be based on a statutory enactment (such as the Law of the Twelve Tables), an established customary norm or an order of a state organ. Originally, criminal proceedings had an entirely inquisitorial nature. As soon as the commission of a crime captured a magistrate’s notice, he had the responsibility to initiate such investigation of the case as he deemed necessary. There was no such thing as a third party participating formally in the proceedings as prosecutor or accuser and producing evidence to establish the accused’s guilt. It was the duty of the magistrate to both instigate a charge against an individual and take steps to procure the necessary evidence and thus, in a sense, he acted as prosecutor as well as judge.
According to Roman tradition, the lex Valeria, a statute passed in the first year of the Republic, stipulated that a Roman citizen could not be slain pursuant to a magistrate’s sentence without a right of appeal to the people (provocatio ad populum). The Law of the Twelve Tables confirmed this rule that a capital sentence9 pronounced by a magistrate could not be executed unless on appeal it had been ratified by the people. A provision of the same statute rendered the comitia centuriata (therein referred to as comitiatus maximus) uniquely competent to deal with appeals against capital sentences. On the other hand, appeals against pecuniary sentences were tackled by the comitia tributa or the concilum plebis, depending on whether the relevant sentence was pronounced by a magistrate of the civitas or the plebs.10
However, we may observe after the enactment of the Law of the Twelve Tables the invariable practice of magistrates cum imperio to refrain from pronouncing a sentence that could be challenged on appeal to the people. The reason is that only the assembly of the centuries had authority to impose a death sentence once a person was declared guilty of a capital offence. Accordingly, criminal jurisdiction was exercised by magistrates alone only in cases involving less serious offences.11
The rules concerning appeals and the restrictions imposed on the magistrates’ judicial powers by legislation entailed the exercise of criminal jurisdiction by the Roman people in important cases during most of the republican period.12 The procedure adopted in trials before the people (iudicia populi) is only discoverable in the descriptions of writers from a later date and a great part remains obscure. Sources reveal that the magistrate who resolved to impeach a citizen, after duly summoning the accused, held a trial in (at least) three successive public meetings (contiones). During these meetings he investigated the case and determined matters of fact and law based on the produced evidence.13 If the accused was found guilty, the magistrate issued an order summoning the appropriate assembly to meet on the expiry of the regular interval of 3 market days (trinum nundinum).14 During this period (3 market days amounted to 24 days) the citizens would have ample opportunities to discuss with one another the case and the issues it involved. When the assembly congregated on the appointed day, the magistrate presented a motion in the form of a bill (rogatio) for confirmation of the verdict and sentence. In response to this motion and without any preliminary debate, those in favour of confirmation voted ‘condemno’ (‘I condemn’) while those against it voted ‘absolvo’ (‘I absolve’).15 If the majority in the assembly was in favour of condemnation, the presiding magistrate pronounced the sentence.16 A notable feature of Roman legal procedure was the right of the accused to flee Rome as a voluntary exile at any time before the assembly’s final vote. Selection of this option entailed the enactment of a decree of outlawry, or interdiction from water and fire (aquae et ignis interdictio). This practically meant banishment accompanied by loss of citizenship and property. The individual declared an interdictus was deprived of legal protection and, if he returned to Rome without permission, could be killed by anyone with impunity.
4.3 The Development of Criminal Justice in the Late Republic
Adjudication of public crimes by the people may have been efficacious in the context of a small city-state composed of conservative farmers and middle-class citizens. However, as socio-economic and political conditions became more complex, especially in the period following Rome’s wars of expansion, comitial trials proved increasingly inadequate to deal with the complicated issues that criminal prosecutions frequently invoked. Quite aside from the fact that trials by the people were cumbersome and time-consuming, the escalating number of cases made adjudication of public crimes by the assemblies very difficult.17 Inevitably, popular criminal justice eventually had to be replaced by a new and more functional court system. The gradual evolution commenced in the early second century bc with the creation, by decision of the people, of special ad hoc tribunals (quaestiones extraordinariae) for the investigation of certain offences of a political nature. These embraced offences such as abuse of power or dereliction of duty by magistrates and provincial officials, and conspiracies against public order and the security of the state. Moreover, the senate, on occasions of emergency, assumed (or usurped) the power of setting up, by its own authority alone and without the sanction of the people, special courts from which there was no appeal.18 A tribunal of this kind consisted invariably of a magistrate cum imperio (i.e. a consul or a praetor) surrounded by a body of assessors (consilium) selected by the magistrate or the senate. The court’s decision was determined by the majority of the assessors and no appeal against it was allowed as the court was regarded to represent the people. An early illustration of a special quaestio was the commission established by the senate in 186 bc to investigate and punish the crimes committed by members of the Bacchanalian cult.19
In the transformed socio-political conditions of the later Republic, the quaestiones extraordinariae provided a more efficient means of dealing with public crimes than the iudicia populi, whose role in the administration of justice gradually diminished. However, it was only with the introduction of standing courts of justice that a stricter regulation of criminal procedure was finally realized.
4.3.1 The Permanent Jury Courts
A turning-point in the history of Roman criminal law was the creation of standing courts (iudicia publica or quaestiones perpetuae) authorized to adjudicate crimes of a specific nature. The first of these courts was instituted to investigate allegations of abuse of power by senatorial magistrates charged with provincial administration and tax collection on behalf of the Roman state. In 149 bc the tribune L. Calpurnius Piso initiated the lex Calpurnia repetundarum, a plebiscite that established a standing tribunal (quaestio de repetundis or repetundarum) composed exclusively of members of the senatorial class and chaired by the praetor peregrinus that tried cases involving extortion (crimen repetundarum)—an offence frequently committed by provincial magistrates against the people of their provinces.20 The proceedings in this court bore a strong resemblance in form to a civil action,21 and a defeated defendant was obliged to return the illicit gain to those affected.22 No appeal from the court to the comitia was allowed, nor could its decisions be suspended by tribunician veto.
The establishment of the quaestio repetundarum later inspired the creation of other standing courts by special statutory enactments ex post facto for individual crimes,23 especially crimes committed by high-ranking magistrates or army officers during performance of their duties. Thus, by the end of the second century bc, four permanent courts had been established: for extortion (de repetundis); for high treason (de maiestate)24; for electoral corruption (de ambitu)25; and for embezzlement of public money (de peculatu).26
Under Sulla’s government (82–79 bc), the standing court system was extended further and the entire machinery of the quaestiones perpetuae was overhauled to place the administration of criminal justice on a more firm and consistent basis. The quaestio repetundarum was reorganized by the lex Cornelia de repetundis, and the quaestio de maiestate instituted by Saturninus in c. 103 bc was recognized as the principal court for high treason by the lex Cornelia de maiestate of 81 bc.27 The court dealing with electoral corruption (de ambitu) was also retained, while Sulla’s own lex Cornelia de ambitu introduced heavier penalties for this crime.28 As regards homicide, a court for hearing cases of poisoning (quaestio de veneficis) was apparently established before the time of Sulla. A court attending to cases of assassination (quaestio de sicariis) had been created as early as 142 bc, but it appears to have operated only as a quaestio extraordinaria. Under Sulla’s lex Cornelia de sicariis et veneficis of 81 bc, both forms of homicide were dealt with by the quaestio de sicariis et veneficiis, which thus became a general murder court. The same court also tried those who attempted to procure the unlawful conviction of another person.29 One of the permanent courts established by Sulla tackled certain forms of injury (iniuria) caused by acts of violence, such as beating (pulsare), striking (verberare) and the forcible invasion of another person’s house (domum introire).30 Sulla also introduced a quaestio de falsis that functioned as a court dealing with cases involving the forgery of official documents, wills and the counterfeiting of money.31 After Sulla’s era more quaestiones perpetuae were implemented such as the quaestio de vi for crimes of violence32; the quaestio de plagiariis for kidnapping, treating a free man as a slave and inciting a slave to leave his master33; the quaestio de sodaliciis for electoral conspiracy34; and the quaestio de adulteriis for adultery.35
Generally, the permanent courts were governed by rules similar to those governing the extraordinary courts and, like the latter, were regarded as operating under the authority of the people.36 It is germane to mention that the supreme jurisdiction of the comitia remained unaffected, in principle, by the establishment of the standing court system. In practice, however, the old comitial procedure was seldom engaged when trial by a quaestio perpetua was available. As the system of the quaestiones perpetuae approached completion, the role of the assemblies in the administration of criminal justice thus ceased.
According to the statute of 149 bc that established the quaestio repetundarum, the members of this court were recruited exclusively from among the senators. As provincial magistrates invariably belonged to the senatorial nobility, the above rule could engender some favour for the provincial magistrate charged with extortion. A magistrate who was retired from office and charged with extortion had the benefit of a trial by his peers and his chances of acquittal were thus greatly increased. As new permanent courts were brought into existence, this would naturally hold good in their case also. As a result of the senate’s understandable reluctance to punish members of its own class, the new court system became a convenient instrument of self-protection for the senatorial oligarchy. It is thus unsurprising that the organization of the jury courts surfaced as one of the most highly contested issues in the later Republic.
In 123–122 bc Gaius Gracchus, seeking to implement his basic policy aim of curbing the senate’s powers, procured the passing of a statute (lex Acilia) whereby the right of sitting as members of the quaestiones perpetuae was transferred from the senators to the equestrians. At first, eradicating the senatorial monopoly on the administration of criminal justice appeared to be a move in the right direction. It meant that if members of the senatorial nobility controlling the provincial administration were accused of abuse of power, they would face a tribunal composed of equites. But in reality the transfer of control over the court system to the equites did not diminish the deleterious influence of factional politics on the administration of justice. It simply allowed a class whose political role was once largely neglected to participate in what was originally regarded as an ‘in-house’ affair. Naturally, the senatorial nobility refused to acquiesce in this situation. Thus, the issue of membership within the standing courts persisted as a prominent apple of discord and the subject matter of various legislative measures throughout the last century of the Republic. Sulla’s short-lived reform restored the senate’s control of the court system, which was expected in view of his general policy trends. After this event, the lex Aurelia of 70 bc established a more equitable balance in the composition of the juror lists. This law provided that each quaestio perpetua was to consist by one-third of senators, one-third of equites and one-third of tribuni aerarii (the latter are commonly understood to have been equites but with a lesser property qualification). In the last decades of the Republic, when the internecine strife between the senatorial factions peaked, it may appear that the equestrians had the upper hand in the standing courts.37
As previously noted, each quaestio perpetua was competent to deal only with a particular category of offence. The nature of this category was defined in the statutory enactment establishing the quaestio, as amended possibly by subsequent legislation. A court of this type embodied a considerable number of non-official members and was chaired by a president referred to as quaesitor. According to the system finally adopted, the president was normally a praetor. However, any other magistrate or even a private citizen (usually an ex-magistrate) invested with magisterial powers could be appointed president.38 The members of the court were not the president’s nominees but were chosen in accordance with the provisions of the statute establishing the particular quaestio. Generally, a large body of qualified citizens was summoned and a complicated process involving challenges on both sides reduced this body to the prescribed number.
The form of the proceedings in the permanent courts was essentially accusatorial, as opposed to inquisitorial. This meant that no action could be initiated unless a citizen laid a formal accusation against another and thereby undertook to prosecute at the trial.39 The sole function of the court was to hear and assess the evidence and arguments presented by the prosecution and the defence respectively, and thereafter to convict or acquit. The president publicly announced the verdict, which was thus nominally his verdict. Nevertheless, he was bound to decide the case in accordance with the opinion of the majority of the members as ascertained by a ballot. Hence, it was the members who constituted the actual adjudicators. Note that no sentence was pronounced as the penalty for the particular offence was stipulated by the statute that established the quaestio, and liability to this penalty ensued automatically from the conviction. A person found guilty by a quaestio perpetua could not appeal to the people against the court’s decision.
The first step in a criminal prosecution was the postulatio, which constituted an application by a citizen to the magistrate directing a particular quaestio for permission to instigate charges. This was an essential preliminary requirement, as the applicant might be precluded by law from laying charges against any person, or against the particular person he intended to prosecute.40 After permission to prosecute was granted, the accuser stated the name of the accused and the offence committed (nominis et criminis delatio) in a formal and written manner while the accused was present.41 The document containing the accusation (inscriptio) was then signed by the accuser and by all those supporting his claim (subscriptores). Moreover, the accuser had to swear an oath that he did not issue a false accusation out of malice (calumnia) or in collusion with the accused (praevaricatio).42 After the magistrate had formally accepted the indictment (nominis receptio), the accused became technically a defendant (reus) and the trial date was set. The accuser was granted sufficient time to prepare his case (inquisitio)—in most cases, 10 days appears as the minimum period but in certain cases (especially when evidence had to be gathered from overseas) a longer period might be allowed. The accuser might also request the summoning of witnesses (a maximum of 48) by the magistrate, although the latter was free to summon as many as he thought fit (testimonium denuntiare). The next step in the process was the selection of the members of the court designated to try the case.43 These were chosen by lot (iudicum sortitio) from the annual list of jurors (album iudicum) prepared by the praetor at the beginning of each year.44 After the required number of jurors was selected in this way (50 and 75 were typical), both the accuser and the defendant had an opportunity to disallow a specified number of jurors (iudicum reiectio).45 The presiding magistrate then replaced the disqualified jurors by drawing more names from the album iudicum (iudicum subsortitio).
During the trial, the accuser and the defendant dominated the scene, with their advocates and witnesses engaged in cross-examinations that were often rancorous.46 The jurors listened in silence, while the presiding magistrate was mainly responsible for the orderly progress of the proceedings.47 Both oral and documentary evidence was admissible.48 Witnesses (testes) testified under oath and were examined by their own side and cross-examined by the other.49 After all the evidence was presented and the closing speeches delivered, the magistrate convened the jury and placed the question of the defendant’s guilt or innocence to the vote. In early times the vote was open, but the enactment of the lex Cassia in 137 bc entailed the use of a secret ballot (per tabellas) to determine the court’s decision. Each juror was given a small tablet marked on one side ‘A’ (absolvo) and on the other ‘C’ (condemno). He then erased one or the other and cast the tablet into an urn (sitella). Jurors also had the third choice of ‘NL’ (not liquet: not proven) if they were unable to reach a decision.50 The verdict was determined by the majority of the votes: if there was a majority of ‘C’s the accused was pronounced guilty by the presiding magistrate; if the ‘A’s predominated or if there was an equality of votes, he was pronounced not guilty. If the majority of the jurors voted ‘non liquet’ the presiding magistrate announced the necessity for a more thorough investigation into the case and fixed a day for a new hearing (ampliatio).51
As previously noted, the penalties imposed by the standing courts were specified in the statutes that instituted these courts, and liability to these penalties routinely followed upon conviction. There existed two kinds of penalties: capital and monetary. In theory, most crimes of a serious nature were capital but it was practically unknown to inflict the death penalty (poena mortis) on a Roman citizen deriving from a condemnation on a criminal charge in normal circumstances. The reason is that persons tried by these tribunals enjoyed a statutory right of fleeing into exile before the court pronounced its final sentence.52 When, as invariably happened, a condemned person invoked this right, a resolution passed by the vote of the people declared his legal status as an exile and interdicted him accordingly from using water and fire (aquae et ignis interdictio).53 The normal effect of this interdiction rendered the culprit liable to summary execution if discovered on Roman territory, which after the Social War (91–88 bc) covered the whole of Italy.54 Hence, condemnation by a standing court on a capital charge virtually amounted to a sentence of banishment. It is feasible that some late republican statutes expressly substituted interdiction from fire and water with death as the penalty for certain crimes.
The modern observer can hardly fail to form an unfavourable appraisal of the Roman administration of criminal justice. A survey of civil law and procedure would fare better as this field early displayed logical categorization and generally produced adequate results. Roman criminal justice appears as haphazard, capricious, opportunistic and remote from the contemporary standards of equal protection of the laws. Proceedings in the standing courts were cumbersome and trials could be protracted as cases were often heard more than once. Although a jury of less than a 100 members could grasp complicated evidence and assess the parties’ credibility better than a crowd of thousands, jurors were often as susceptible to corruption and bribery as the people in the turbulent iudicia populi. A less unfavourable appraisal of the Roman criminal justice system is formed if one contemplates the immense pressures of a rapidly expanding empire. Further, the adverse circumstances of a largely haphazard evolution engendered many new concepts and categories of criminal wrongdoing (such as crimes against public order and the security of the state, various types of fraud, corruption and abuse of office) that furnished the framework for the subsequent development of the criminal law.
4.4 The Administration of Criminal Justice in the Principate Age
At the end of the republican era, the jurisdiction of the assemblies in capital crimes had entirely disappeared. The ordinary mode of criminal trial for serious offences featured a prosecution before a standing court (quaestio perpetua). Less serious offences were dealt with in a summary fashion by lower-grade magistrates, the tresviri capitales. Shortly after the establishment of the Principate, the tasks of the tresviri capitales were assumed by imperial officials (vigiles) acting under the supervision of the praefectus vigilum.55 On the other hand, the standing jury-courts remained in operation for quite a long time after they were reorganized by the lex Iulia iudiciorum publicorum of Augustus (17 bc). This enactment drastically revised the composition of the jury-courts in the spirit of broadening the socio-economic basis of public participation, and prescribed the rules of procedure governing the conduct of trials. A general list of jurors was established comprising four categories based on status and property qualifications: senatorials; equestrians; the tribuni aerarii; and finally, a new class formed by the owners of property worth 200,000 sesterces (duocentenarii) who would be summoned in cases of minor importance. Moreover, the minimum age for jury service was lowered from 30 to 25, so that there always existed sufficient citizens to serve as jurors. In 18 bc, Augustus completed the system of quaestiones perpetuae by creating two new tribunals of this kind: the quaestio de adulteriis and the quaestio de annona. The jurisdiction of the first court encompassed cases of adultery (adulterium), extra-marital relationships involving women of a high social standing, and procurement.56 The second court dealt with accusations against merchants who endeavoured to raise the market prices of foodstuffs, or who engaged in unfair practices relating to the supply or transportation of food.57
However, since trial by jury was not readily amenable to official control, the system of the quaestiones perpetuae was contrary to the spirit of the new imperial regime. Apart from this fact, the standing court system had several deficiencies that were not adequately addressed by the Augustan legislation. Firstly, each quaestio was constituted in a specific manner according to the statute that originally established it (or possibly according to some subsequent statute), and could only tackle a particular offence category as specified in such statute. Hence, frequently a wrongful act that merited punishment as a crime was not punished as it did not precisely fulfill the definitional requirements of any of those offence categories for which quaestiones had been instituted. Secondly, the statutory enactment establishing a quaestio (or possibly a subsequent statute) prescribed the punishment for the specific category of offence in question, and this punishment automatically attached on conviction. Thus, the tribunal had no power to either increase or mitigate such punishment to address the circumstances of the individual case. In general, the penalties imposed for offences captured by the jurisdiction of the jury-courts were often regarded as too mild and therefore disproportionate to the gravity of the offences committed. In addition, proceedings in the jury-courts were expensive, laborious and even protracted as the cases were often heard more than once. Thus, since the early years of the Principate the work of the jury-courts was supplemented by the new extraordinary jurisdiction (cognitio extraordinaria) of the emperor and those officials to whom he delegated his judicial powers. At the same time, the princeps-emperor sanctioned the senate’s assumption of an extraordinary criminal jurisdiction. In a sense, the senate may be construed to have replaced the popular assemblies’ jurisdiction and this body was resorted to mainly in cases involving offences with a political nature or any case where the accused was a senator. In principle, these two jurisdictions were concurrent but reality exposes the more extensive nature of the emperor’s jurisdiction from the start. As more offences fell within the sphere of the new tribunals’ jurisdiction over time, the quaestiones perpetuae faded into the background and finally disappeared in the early years of the third century ad.58
4.4.1 The Criminal Jurisdiction of the Senate
The criminal jurisdiction of the senate originated in the early years of the Principate period when the senate evolved as a court of law on a par with the iudicia publica.59 Initially, it dealt with cases connected with the crimen laesae maiestatis, wrongful conduct that diminished the majesty of the emperor and the people of Rome. It also addressed cases involving abuse of power perpetrated by provincial governors. In the time of Tiberius (ad 14–37), the senate’s jurisdiction was enlarged to encompass not only crimes against the security of the state (such as treason) but also a wide range of serious crimes (including adultery, murder and forgery) committed by members of the senatorial order. In this way, the senate by the end of the first century ad had developed into a forum privilegiatum with exclusive jurisdiction over the crimes of senators.
Trials before the senate were conducted in accordance with a procedure that blended the old rules of senatorial debate with those of the iudicia publica. A prosecution was launched by an application to a consul for leave to initiate an accusation (postulatio), followed by the accuser’s formal announcement of the charge (nominis delatio). The magistrate to whom the application was submitted then formally registered the name of the accused (nominis receptio) and the trial date was established. On the appointed day, the senate was convoked and the trial commenced under the presidency of a consul. After the arguments of the parties were presented and the evidence heard, individual members submitted their motions and presented opinions. The verdict was attained by a majority vote without the involvement of the presiding magistrate. The emperor frequently participated in the judicial sessions of the senate and, as princeps senatus, cast the first vote that presumably carried decisive weight. The sentence became valid in law upon the final announcement of the verdict and its insertion in the official record as a senatorial resolution. No appeal to the people was available against a death sentence imposed by the verdict. Since the late second century ad, the jurisdiction of the senate was curtailed both substantially and procedurally. By the middle of the third century ad, the senators were no longer involved in the administration of criminal justice.
4.4.2 Imperial Jurisdiction
Since the era of Augustus, the operation of the emperor’s domestic tribunal started to resemble a public criminal court. In time, the emperor assumed jurisdiction not only over matters affecting him personally, such as conspiracies, but also over common-law crimes. He possessed the power to withdraw at his discretion any criminal case from the ordinary judicial authorities. In the early years of the Principate, this seems to have occurred on rare occasions. Despite any endeavours of an individual princeps to avoid determining cases directly as a judge, he was inevitably drawn into this activity by the appeals against court decisions and the increasing number of citizens’ petitions for justice. Moreover, juristically inclined emperors, like Claudius, always sought to extend the imperial court’s radius of competence by introducing cases to this court and determining them in the final instance.60 However, a long time passed before the jurisdiction of the jury-courts and the senate was superseded by the imperial cognitio, especially in cases involving capital charges.
In the exercise of his criminal jurisdiction, the princeps-emperor was not bound by the general rules governing ordinary criminal law proceedings and had complete freedom in the composition of his council of advisors (consilium). He also had a free hand in the definition of offences, the choice of penalty, the mode of punishment and the degree of its severity. As the decisions of the imperial court gradually acquired the status and force of laws, criminal law evolved from its static form to broaden in scope and complexity. However, criminal law was never the subject of scientific study to the same extent as private law. As a result, the administration of criminal justice was pervaded by an element of arbitrariness that easily rendered it an instrument of oppression.61
In Italy, the highest criminal jurisdiction under the emperor was assigned to the city prefect (praefectus urbi) and the praetorian prefect (praefectus praetorio). By the late second century ad, the former had jurisdiction over all crimes committed in Rome and in a zone within a radius of 100 miles from the city62; offences committed outside that delineated area fell within the jurisdiction of the latter. These two high-ranking imperial officials had the unrestricted power to inflict any recognized form of punishment, capital or otherwise, on any offender. They could try any case in the first instance, but they also dealt with appeals against sentences of lower magistrates (central or local) endowed with an inferior criminal jurisdiction. In principle, a judgment of the praefectus urbi or the praefectus praetorio could be appealed against before the emperor. Of course, the latter could refuse to entertain such an appeal and deem the judgment in question as final. By the Severan period (late second century ad), the magistrate responsible for the maintenance of security in the capital (praefectus vigilum) had acquired jurisdiction in criminal matters such as arson, burglary, robbery and theft, though he probably referred particularly grave cases to the city prefect.63 A specialized jurisdiction over offences connected with the food supply of Rome was assigned to the praefectus annonae.64 Moreover, some criminal jurisdiction was assigned by decree of the senate or imperial constitution to the consuls and praetors who tried cases extra ordinem assisted by a body of assessors (consilium).
As regards the senatorial provinces, the governor was the highest criminal (as well as civil) judge in the province. He could attend to cases either in the first instance or on appeal from lower courts. With respect to non-Roman citizens (peregrini), his power to inflict punishment was unfettered and no appeal against his sentences was allowed. However, his authority was fairly limited in cases involving Roman citizens: he was not entitled to pronounce the death sentence on citizens unless the latter were first granted the opportunity to have their case judged in Rome. In the imperial provinces, criminal justice was administered by imperial officials acting as representatives of the emperor (legati Augusti). From as early as the first century ad, the emperors started to grant those legati who commanded troops in their province the power to execute soldiers (Roman citizens). The latter did not possess the right to present their case before a court in Rome. In the course of time, the mass of Roman citizens living in the provinces greatly increased and it was practically impossible to send all those charged with capital offences to Rome for trial. As a result, this power (ius gladii) was granted to all provincial governors and was made applicable to civilians as well. However, whether or not a governor was also entitled to execute a death sentence without first applying for and receiving special authority from the emperor to do so seems for a long period to have depended on the precise terms of the particular grant. After the constitutio Antoniniana of ad 212 extended the Roman citizenship to all the free inhabitants of the empire, all provincial governors could wield their own authority to order the death of Roman citizens. This action was averted if a condemned person successfully appealed against the sentence. Indeed, whenever a provincial governor had duly pronounced a capital or non-capital sentence on a Roman citizen it was always theoretically possible for the latter to appeal to the emperor despite the great practical difficulties that this could entail.65 If provincial appeals were allowed, they were usually delegated by the emperor to either the praefectus urbi or the praefectus praetorio whose decision in most cases was regarded as final.