Roman politics

by Frank Frost Abbott

5. The Judiciary

If one passes from the legislative and executive branches of the Roman government to the judicial, he thinks at once of Roman law, the greatest legacy which Rome has left us. With that subject we are not concerned in this book. But the judicial machinery of the Romans and some phases of their court procedure are of lively interest to one who is comparing Roman and modern institutions. Of most importance to us in this connection are the methods which the Romans followed in dealing with crimina publica, with what we may roughly, but somewhat inexactly, call criminal cases. For the hearing of such cases, by the early part of the first century before our era, the Romans had established eight or nine courts under the presidency of praetors and ex-aediles.[19] The competence of these several courts was essentially different from that of our courts and may well lead us to ask ourselves if our system makes for efficiency. One Roman court, for instance, confined itself to hearing cases of magistrates charged with extortion. Others heard respectively only cases of forgery, or of treason, or of corrupt practices at elections, or of peculation in office. Under this system each court was peculiarly qualified from long experience to deal with the class of cases which came before it. Under our practice today where cases of different sorts come before the same judge, such special competence as the Roman praetor and his board of trained jurists attained can hardly be gained. The praetor’s court continued to about the third century. Under the later empire criminal cases were heard in Italy by the city prefect or the praetorian prefect, and in the provinces by the governor.

The juries which sat with the praetor in hearing criminal cases were much larger than ours. The smallest one of which we have any record numbered thirty-two. A case was decided, as it is in most Continental countries today, by a majority vote of the jurors. As used to be the practice in the Scottish courts, the Roman juror could vote that a charge was “not proven,” but probably in the later period such ballots were counted for acquittal. The last extant reference to juries in Roman times is from the second century after Christ. This fact has led some modern writers to take it for granted that there is no connection between the Roman jury system and the modern one. Before medieval life had been studied carefully, this was a natural conclusion. Its character was not well understood, and Roman institutions were so modified in the Middle Ages that they were not easily recognized in their later forms. It is also true that, until very recent times, many who studied the origins of modern institutions did not raise their eyes above the modern horizon, or were led by national pride to find those origins among the peoples of their respective countries. This state of things is true, not only of the jury system, but in the case of other modern institutions, yet a more thorough and impartial historical investigation is giving to the Romans the credit which is due to them. We can do no more here than indicate very briefly the links which connect the modern jury system with the ancient one. The character of that system was indicated in the Code of Theodosius. Much of this Code was adopted in the Breviary of Alaric in 506 A.D. and in other summaries based in part on the Roman law, such as the Capitularies of the Merovingian and Carolingian kings. It is therefore a significant fact that under the Merovingians justice was administered by the Count, but on the verdict of the notables, called in the texts rachimburgii or boni homines. These boni homines were chosen by the Count, or judge, at the beginning of the hearing from the freemen assembled in the court. The minimum number chosen was seven. Feudalism put an end to the jury in France, and in its place cases were tried by ordeal, by battle, or by compurgation on the Continent. At this point two or three facts in the historical sequence are noteworthy. Our collection of the Capitularies was made in 827. Within a century the Normans made themselves masters of North Western France. They readily adopted French usages, and it is a fact admitted on all sides, since Palgrave’s great work appeared a century ago, that the beginnings of the English jury system were brought into England by the Normans in the form of an inquest by sworn recognition. At first this method of deciding cases was accepted only as an alternative mode of trial. Twelve knights were selected who were required to declare on oath which contestant in their opinion had the better right. The Continental countries took over the jury from England after 1789. We are not concerned here with the many complex questions which arise in attempting to explain the development of the grand jury and the petty jury on English soil. The outstanding fact is that we owe the judge-and-jury system to the Romans.

One of the most extraordinary features of their judicial system was the fact that the Romans had no permanent public prosecutor. The bringing of criminal actions under the republic was left to private initiative, but there seem to have been enough ambitious politicians to prosecute cases, at least those cases which were likely to bring distinction to the successful prosecutor. Indeed on some occasions the praetor, before beginning a trial, was obliged to give a preliminary hearing to several lawyers who claimed the distinction of bringing the charge against the accused party. The merits and defects of such a system are obvious. Charges were likely to be pushed with vigor, because the reputation of an advocate depended on securing a conviction, and sometimes a patriotic citizen prosecuted a powerful politician when a public prosecutor would have hesitated to do so. But on the whole the plan did not work well. This was especially true when there was a political element in the case. In such circumstances the charge was usually brought by a political opponent, or what was worse still, a political supporter might put the defendant on trial and secure an acquittal, before a real prosecution could take place. Before being allowed to undertake the prosecution of Verres, the venal and tyrannical governor of Sicily, Cicero had to convince the presiding praetor that his claim to the right of conducting the case was better than that of Quintus Caecilius Niger, who had been quaestor of Verres, and hoped to secure the acquittal of his former superior. Such cases of collusion between the prosecutor and the defendant became so common, that a heavy penalty was imposed on those found guilty of it. Even under the empire, when the senate began to hear certain important cases, there was no permanent public prosecutor, but the senate designated members of its own body to conduct the prosecution and the defence. In these trials the senate functioned as a jury, and the presiding consul, as a judge. As the emperor gained a greater control of public affairs, it was not unnatural that he should take over criminal jurisdiction in important cases or delegate it to his prefects. When this point was reached, probably the prosecution of criminal actions was assumed more definitely by the state.

We frequently introduce “character witnesses” in our trials. The Romans went still further. A Roman defendant brought with him to the court as many prominent friends (advocati) as he could to make a favorable impression on the jury. In important cases today in America, although attorneys for the prosecution and defence sometimes give the jury brief outlines of the case before the evidence is presented, their formal pleas are not made until the evidence is in. Our method is inductive. Formal pleas were usually made in a Roman court before the testimony was given. Much can be said for the Roman plan. Having the analyses of the case, as presented by the prosecution and defence, clearly in mind, the average juryman is perhaps better qualified to decide which theory is made more probable by the facts in the case and is in a better position to pick out the salient facts than he is when dealing with heterogeneous bits of evidence. The same looseness of procedure which characterized the meetings of the Roman Senate is found in the courts.[20] The jury was not under careful surveillance; demonstrations of approval and disapproval occurred, violent discussions were not always stopped, the rules of evidence were less strict than they are with us, and technicalities played a less important part. In some of these particulars Continental courts have inherited Roman practices more fully than Anglo-Saxon courts have. In consequence of their elimination of technicalities, the Romans brought important criminal cases to an end much more quickly than we do, and justice was cheaper than it is with us. In Anglo-Saxon courts hearsay evidence, the opinions of witnesses, and facts irrelevant to the issue are excluded by the presiding judge. These rules of evidence were not applied in Roman courts, and when the Continental countries reintroduced the jury system, they went back to the Roman practices in this matter, as we noticed a few years ago in the famous trial at Viterbo.