Mode of Trial in the Permanent Tribunals.—We shall attempt to trace in the remaining pages of this chapter the successive steps in the trial of criminal cases before the permanent tribunals at Rome.
First Stage (postulatio).—A Roman criminal trial before a quæstio perpetua commenced with an application to the presiding magistrate, the prætor or the iudex quæstionis, for permission to bring a criminal charge against a certain person. The technical Latin expression for this request to prosecute is postulatio. It should be here noted that State's attorneys or public prosecutors, in a modern sense, were not known to the Romans at this time. Private citizens took upon themselves public prosecutions in behalf of the state. They were encouraged to do this from motives of personal profit as well as patriotic interest in the welfare of the community. As young men in modern times, just admitted to the bar, often accept criminal cases by assignment from the court in order to make a beginning in their professional careers, so young Roman nobles in ancient times sought to make reputations for themselves by accusing and prosecuting public delinquents. And not only professional reputation, but financial compensation as well could be gained in this way. The Roman laws of the time of Cicero provided that a successful prosecutor should receive one-fourth part of the property confiscated or the fine imposed. A Macedonian inscription offered a reward of 200 denarii to the prosecutor who should bring to justice the desecrators of a tomb.[19]
Second Stage (divinatio).—It often happened that more than one accuser desired to prosecute a single offense; but more than one prosecutor was not permitted by Roman law unless there was more than one crime charged. Then, in case of a concurrence of would-be accusers, a preliminary trial was had to determine which one of these was best fitted to bring the accusation. This initial hearing was known in Roman law as the divinatio. It was indeed more than a mere hearing; it was a regular trial in which the question of the fitness of the different candidates for the position of delator was argued before the president and the jury. This jury was in many cases distinct from the one that finally tried the case on the merits. The purpose of the whole proceeding known as the divinatio was to secure a prosecutor who was at once both able and sincere; and both these qualities were generally very strenuously urged by all those who desired to assume the rôle of accuser. Indeed all personal qualifications involving the mental and moral attributes of the would-be prosecutors were pointedly urged. At the hearing, the different candidates frequently became animated and even bitter opponents of each other. Crimination and recrimination then followed as a natural consequence. An applicant might show that he was thoroughly familiar with the affairs of a province, as a special fitness in the prosecution of a public official for extortion in that province. An opponent, on the other hand, might show that said applicant had been associated with said official in the government of the province and had been, and was now, on the friendliest terms with him. After the meritorious qualifications of all the claimants had been presented, the president and jury rendered their decision. The details of the evidence affecting the merits of the charge were not considered at this preliminary trial. Only such facts were considered as affected the personal qualifications of the different candidates for the place of accuser. When these qualifications were about equally balanced in point of merit between two applicants, the abler speaker was generally chosen.
Third Stage (nominis delatio).—It frequently happened that the postulatio, the request to prosecute, was not followed by the divinatio, the preliminary hearing on the merits of different applicants, because there was only one would-be accuser; and his qualifications were beyond dispute. In such a case, when a request to bring a criminal charge against a certain person had been presented by a citizen to the prætor, there followed, after a certain interval of time, a private hearing before the president of the court for the purpose of gaining fuller and more definite information concerning the charge. This private proceeding was styled the nominis or criminis delatio, and took place before the president alone. Its main object was to secure a specification of the personality of the accused as well as of the charges brought against him. At this stage of the trial the presence of the accused person was necessary, unless he was absent under valid excuse. The lex Memmia, passed in the year 114 B.C., permitted a delinquent to plead that he was absent from Rome on public business, as an excuse for not appearing at the nominis delatio. In the year 58 B.C., the tribune L. Antistius impeached Julius Cæsar. But the colleagues of Antistius excused Cæsar from personal attendance because he was absent in the service of the state in Gaul. But, if the accused appeared at the nominis delatio, the prosecutor interrogated him at length concerning the facts of the crime. The purpose of this interrogation (interrogatio) was to satisfy the president that there was a prima facie case to carry before the regular tribunal in open trial. The proceedings of the nominis delatio were thus in the nature of a modern Grand Jury investigation, instituted to determine if a serious prosecution should be had.
Fourth Stage (inscriptio).—If the interrogation convinced the president that the prosecutor had a prima facie case to take before the permanent tribunal, he framed a form of indictment called the inscriptio. This indictment was signed by the chief prosecutor and also by a number of witnesses against the accused called subscriptores. The charge was now definitely fixed; and, from this moment, it was the only offense that could be prosecuted at the trial. The drawing up of this charge by the president was similar to the framing of an indictment by a modern Grand Jury.
Fifth Stage (nominis receptio).—After the indictment or inscription had been framed, it was formally received by the president. This act was styled the nominis receptio and corresponds, in a general way, with the presentment of an indictment by a modern Grand Jury. When the nominis receptio was complete, the case was said to be in judicio, and the accused was said to be in reatu. The president then fixed a day certain for the appearance of the accused and the beginning of the trial. The time fixed was usually ten days from the nominis receptio. However, a longer time was allowed if evidence had to be secured from beyond the sea. Thirty days were allowed the accusers in the prosecution of Scaurus. Cicero was given one hundred and ten days to secure evidence against Verres; but he actually employed only sixty. The time granted the prosecutor was also required by the law to be utilized by the defendant in preparing his case.
The preliminary steps in the prosecution were now complete, and the accused awaited the day of trial. In the meantime, he was allowed to go at large, even when charged with a grave offense like murder. Imprisonment to prevent escape had almost ceased at the time of which we write. If the evidence against the accused was weak, it was felt that he would certainly appear at the trial. If the evidence against him was very strong, it was thought that he would seek to escape a sentence of death in voluntary exile, a step which Romans always encouraged, as they were averse, at all times, to putting a Roman citizen to death.
Sixth Stage (citatio).—At the expiration of the time designated by the president for the beginning of the trial, the proceedings before the judges began. All the necessary parties, including the judges or jurors, were summoned by a herald to appear. This procedure was termed the citatio. Strange to say, if the accused failed to appear the case could proceed without him. The reason for the requirement of his presence at the nominis delatio, but not at the trial is not clear; especially when viewed in the light of a modern trial in which the defendant must be present at every important step in the proceedings. Under Roman procedure, the presence of the defendant was not necessary, whether he was in voluntary exile, or was obstinately absent. In 52 B.C., Milo was condemned in his absence; and we read in Plutarch that the assassins of Cæsar were tried in their absence, 43 B.C.
Excusable absence necessitated an adjournment of the case. The chief grounds for an adjournment were: (1) Absence from the city in the public service; (2) that the accused was compelled to appear in another court on the same day; (3) illness.
The absence of the accused did not prevent the prosecution of the case, but the nonappearance of the prosecutor on the day fixed for the beginning of the trial usually terminated the proceedings at once. The fact that the case had to be dismissed if the accuser failed to appear only serves to illustrate how dependent the state was on the sincerity of the citizen who undertook the prosecution. The obligations of the prosecutor honestly and vigorously to follow up a suit which he had set in motion were felt to be so serious a matter by the Romans that special laws were passed to hold him in the line of duty. The lex Remmia provided that if any citizen knowingly accused another citizen falsely of a crime, the accuser should be prosecuted for calumny (calumnia). It further provided that, in case of conviction, the letter K should be branded on the forehead of the condemned. Such laws were found necessary to protect the good name of Roman citizens against bad men who desired to use the legal machinery of the state to gratify private malevolence against their enemies. It may thus be seen that the system which permitted public prosecutions on the motion of private citizens was attended by both good and bad results. Cicero regarded such a system as a positive benefit to the state.[20] Its undoubted effect was to place a check upon corruption in public office by subjecting the acts of public officials to the scrutiny and, if need be, to the censure of every man in the nation. On the other hand, accusers in public prosecutions came finally to be identified, in the public mind, with coarse and vulgar informers whose only motive in making public accusations was to create private gain. So thoroughly were they despised that one of the parasites of Plautus scornfully exclaims that he would not exchange his vocation, though low and groveling, with that of the man who makes a legal proceeding "his net wherein to catch another man's goods."[21]