Roman Public Life

by A. H. J. Greenidge

(1) That capital cases should be reserved for the centuries. To this there is the exception furnished by the special capital jurisdiction of the Plebs.[1207]

(2) That a case initiated by a magistrate could be tried only in that assembly which the magistrate was competent to approach. To this principle there were two exceptions: first, the consular delegates—the quaestors and the duumviri perduellionis—although possessing no jus agendi cum populo, yet guided the assemblies in which an appeal from their decision was made;[1208] and secondly, the tribune, when conducting a capital prosecution before the comitia centuriata, approached, and perhaps had the presidency of, this body.[1209]

But, as a rule, the official character of the magistrate who conducts the prosecution, and the nature of the penalty which he proposes, are signs of what assembly passes its final judgment on the case.

The capital jurisdiction of the consuls, expressed through the quaestors, was exercised in the comitia centuriata; an appeal against the coercitio of consuls and praetors, when the fine which they imposed passed the limit of the multa suprema[1210] came before the comitia tributa populi. The jurisdiction of the aediles[1211] was always exercised before the tribes; the curule aediles as magistratus populi must have brought their case before the comitia tributa populi; the plebeian aediles, who, as magistrates of the Plebs, had no right of approaching the people, appeared before the concilium plebis. With regard to the tribunes, where their jurisdiction was capital, it may in certain cases have been exercised by the concilium plebis, but usually necessitated an appearance before the comitia centuriata,[1212] where it was pecuniary, the tribune would invariably have brought the case before his own assembly of the Plebs.

The procedure in a judicium populi consisted of two stages. In the first, the magistrate who intended to impose a sentence which was beyond the limits of his personal jurisdiction held a preliminary examination (anquisitio).[1213] This is conducted with the fullest publicity before an informal assembly or contio which he has summoned. This preliminary investigation is repeated three times, on days not necessarily consecutive. The magistrate is represented as a prosecutor, and his expressions of opinion at these meetings are spoken of as accusationes. His final judgment, consequent on the proceedings of the third contio, is a bill (rogatio), which he gives notice of his intention to bring before the comitia. The penalty proposed in this bill need not be that originally suggested, for the investigation may have led the magistrate to amend his original proposal.[1214]

The legal interval for promulgation—three weeks—then elapsed, and at its close the proposal was brought by the magistrate before the comitia. It was then either accepted or rejected (necessarily without amendment) by the assembled people. This formal assembly (comitia) was, in judicial as in legislative acts, preceded by a contio; and the magistrate’s final statement of his proposal before this contio is spoken of as his “fourth accusation” (quarta accusatio).[1215] If, through any chance, such as evil auspices, the bill was not carried through the comitia, a fresh promulgation, with another interval of three weeks, was necessary for a revival of the trial. This necessity made a repetition of a prosecution by the same magistrate on the same charge very infrequent.[1216]

Hitherto we have been treating the case of a judicium populi consequent on the magistrate’s recognising the limitations on his power. But there is a possibility of his refusing this recognition, and in this case the matter can be brought to the people only by means of an appeal (provocatio) lodged by the accused. This contingency was, in the middle and later Republic, unusual but not unknown, for the jurisdiction of the duumviri perduellionis was, as we know from the case of Rabirius,[1217] regulated at times in such a manner that an appeal to the people was an essential part of the procedure.

In such a case there were two magisterial investigations instead of one. The first was the quaestio, as a result of which the magistrate had pronounced the appellable sentence; the second was the anquisitio before the people preceding the decision in the comitia. It must occasionally have happened that different magistrates conducted these two stages of procedure; for if an individual appealed against the decision of a magistrate in a province or in the field, this magistrate might himself be unable to conduct the case at Rome.

The people is represented from a very early time as rescinding its own sentences.[1218] This rescission was simply the repeal of a law, and was perhaps not regarded originally as the revision of its own sentence by a court. No provision was made that the particular assembly which had pronounced the sentence should repeal it. This was, indeed, sometimes the case. Popilius, for instance, who had been held responsible for the judicial murders following the fate of Ti. Gracchus, was both banished and restored by plebiscita.[1219] But, on the other hand, Metellus, “interdicted” by a consular bill, which must have been passed at the comitia centuriata,[1220] was restored by the rogatio of a tribune,[1221] while Cicero himself, banished by a tribunician enactment, was recalled from exile by a consular law passed at the comitia centuriata.[1222]