Roman politics

by Frank Frost Abbott

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.

6. Conception of Citizenship

i. IN TIMES OF PEACE

A jealous solicitude for the rights of the average citizen is a marked trait of the Roman character. A clear understanding of what the rights of the common man were and an ingrained purpose to protect him in the exercise of them determine the development of judicial procedure in Rome, of law, and of political organizations. Perhaps the Romans have bequeathed to us no greater heritage than their conception of citizenship. With them it was not a mere dogma of political philosophy, set forth in the writings of idealists or incorporated in general terms in declarations of rights. It was made a reality in everyday life by law, by tradition, and by political reforms. It finds expression in the first written law which the Romans had, that of the Twelve Tables, and five centuries later we hear an echo of it in the historic claim of St. Paul. This ideal has been before us through the ages, and has been an inspiration and a guide to every true leader of democracy. The laws of the Twelve Tables, of which mention has just been made, set down in written form and in great detail an orderly procedure, which must be followed in a judicial action, and thus informed a citizen of his rights, and laid an obligation on the state to see that they were observed. The Valerio-Horatian law a little later gave a citizen the privilege of appealing in a capital case to the popular assembly. The establishment of the tribunate provided a democratic official to safeguard him against the arbitrary action of a magistrate. The dictatorship, the “final decree of the senate,” and the other devices which the state used under the republic to suspend the rights of citizens were either done away with or hemmed in by constitutional safeguards. Cicero brings his terrible indictment of the governor of Sicily to a fitting climax with the charge that Verres had caused a Roman citizen to be put to death, and turning to the man at the bar he cries: si tu apud Persas aut in extrema India deprehensus, Verres, ad supplicium ducerere, quid clamitares, nisi te civem esse Romanum? It is true that there were many slaves in the Roman world, and that many freemen within its limits did not enjoy the full rights of Roman citizenship until late in the imperial period, but these facts do not weaken the point in which we are interested here. Wherever he went a citizen had behind him the sovereignty of the Roman state. Any community which wronged him must make restitution, or it would feel the heavy hand of Rome. This Roman principle that a state may protect its citizens even in a foreign land has been accepted by modern nations and is jealously observed by them. In fact international relations are concerned in large measure with the protection by a state of its citizens or subjects residing in foreign countries. Their passports certify to their citizenship. They may appeal to their minister or ambassador when they think themselves wronged, and may look with confidence for the support of the army and navy of their respective countries, when their lives, liberty, or property are threatened.

ii. IN TIMES OF WAR

We have just been considering the fortunate position of the Roman citizen in times of peace. When wars arose, he became the servant of the state. Unlike the Carthaginians, the Romans did not during the periods of the Great Wars, employ mercenaries. Service in the army was compulsory on all citizens between seventeen and forty-six years of age who had property of a certain amount. Those who avoided service were liable to have their property confiscated, or to be sold as slaves, and desertion was a capital offence. Discipline was strict, and punishments were severe. But at the end of a campaign the soldier returned to civil life. Before the close of the third century B.C., however, the territory of Rome extended beyond the sea, and a soldier’s term of service was correspondingly lengthened. This fact made the well-to-do, who were already disinclined to service in the army, still more opposed to it. This was the situation which led Marius to substitute voluntary enlistment for conscription toward the end of the second century. The new plan quickly filled the ranks of the army. The needy and the adventurous found a soldier’s career attractive. They accepted it as their life’s work. Their home was the camp. “Esprit de corps took the place of patriotism.” As I have remarked in my Roman Political Institutions: “Henceforth the soldiers who came back to the city after protracted campaigns did not look on their commander, as their fathers had done, as a simple fellow-citizen, who had like themselves been serving the state, and now resumed his place by their side. Long periods of service abroad under the direction of one man had led them to follow implicitly the guidance of an individual.” The veterans of Marius, of Sulla, of Pompey, and of Caesar could be trusted to follow at home the political leadership of the man under whom they had served abroad. This situation threw the control of politics into the hands of those who commanded the largest armies. What was still worse, the state could no longer count on the fidelity of its soldiers. Their allegiance had been transferred from Rome to their commander-in-chief, and the security of the government itself might depend on his loyalty or his lack of political ambition. From the beginning of the first century before Christ to the end of the empire the sinister figure of the army is ever in the background. It was a disturbing force in politics, as we have just seen, by giving political offices and an undue influence to military men without regard to their fitness for political leadership, and by organizing forcible interference with public meetings of which the veterans disapproved; and the claims which the soldiers made for lands and bonuses often put the government in a difficult position. Of some of these evils, of which we have been painfully aware in this country after our various wars, we shall have occasion to speak in the next chapter. Fortunately in our history the army has never threatened the existence of a stable government or been used to overthrow it, as it was used in Rome in the year 68-69 and almost constantly during the third century of our era.

7. Taxation and Finance

In the fields of taxation and public finance we have not much to learn from the Romans, save by way of warning. Most of the revenue of the state came from the provinces, and for several centuries was collected by tax-farmers.[21] We are familiar enough in more recent times with the exploitation of provinces, or colonies, as we call them, by the state or the great trading company, because most modern nations have followed Rome’s policy of making their colonies subserve the interests of the mother country. In Sicily, the first overseas territory which the Romans acquired, they took over the system of taxation which they found in vogue there. That system rested on the Oriental theory that the land belonged to the sovereign, and that those who held the land paid rent for its use. This was the basis of taxation in all the later provinces also. Next in importance to the tribute were the customs duties. They brought in a large revenue, but were a great impediment to trade. Rome held almost all the civilized world. Consequently duties collected on the frontiers of the empire would not have amounted to much. What the Romans did was to divide the empire into tariff districts, and collect duties from those entering these districts. Trade suffered in consequence, as it did in France before the Revolution under similar conditions. The only other important tax in this connection was the five per cent inheritance tax imposed on property left to others than near relatives. It was instituted by Augustus, was levied on Roman citizens, and met with violent opposition. This system, taken in its entirety, relieved Italy from the burden of taxation.