218

CAPITAL TRIALS

VADES, PRÆDES.

The senate also sometimes judged in capital affairs, Sallust. Cat. 51, 52., or appointed persons to do so, Liv. ix. 26.

But after the institution of the Quæstiones perpetuæ, (see p. 114.) certain prætors always took cognizance of certain crimes, and the senate or people seldom interfered in this matter, unless by way of appeal, or on extraordinary occasions.*

I. CRIMINAL TRIALS BEFORE THE PEOPLE.

TRIALS before the people (JUDICIA ad populum) were at first held in the Comitia Curiata, Cic. pro Mil. 3. Of this, however, we have only the example of Horatius, ibid.

After the institution of the Comitia Centuriata and Tributa, all trials before the people were held in them; capital trials in the Comitia Centuriata, and concerning a fine, in the Tributa.

Those trials were called CAPITAL, which respected the life or liberty of a Roman citizen. There was one trial of this kind held in the Comitia by tribes; namely, of Coriolanus, Liv. ii. 35.; but that was irregular, and conducted with violence, Dionys. vii. 38. &c.

Sometimes a person was said to undergo a capital trial, periculum capitis adire, causam capitis vel pro capite dicere, in a civil action, when, besides the loss of fortune, his character was at stake, (cùm judicium esset de famâ fortunisque,) Cic. pro Quint. 9. 13. 15. Off. i.

12.

The method of proceeding in both Comitia was the same; and it was requisite that some magistrate should be the accuser.

In the Comitia Tributa, the inferior magistrates were usually the accusers, as the tribunes or ædiles, Liv. iii. 55. iv. 21. Val. Max. vi. 1.7. Gell. x. 6. In the Comitia Centuriata, the superior magistrates, as the consuls or prætors, sometimes also the inferior, as the quæstors or tribunes, Liv. ii. 41. iii. 24, 25. vi. 20. But they are supposed to have acted by the authority of the consuls.

No person could be brought to a trial unless in a private station. But sometimes this rule was violated, Cic. pro Flacc. 3. Liv. xliii. 16. The magistrate who was to accuse any one, having called an assembly, and mounted the Rostra, declared that he would, against a certain day, accuse a particular person of a particular crime, and ordered that the person accused (reus) should then be present. This was called DICERE DIEM, sc. accusationis, vel diei dictio. In the mean time the criminal was kept in custody, unless he found persons to give security for his appearance, (SPONSORES eum in judicio ad diem dictam sistendi, aut mulctam, qua damnatus esset, solvendi,) who, in a capital trial, were called VADES, Liv. iii. 13. xxv. 4., and for a fine, PRÆDES, Gell. vii. 19. Auson. Eidyll. 347. (a præstando, Varr. iv.

When a special commission was appointed by Pompey, A. U. 701, during his consulship, to inquire into the death of Clodius, an extraordinary judge, of consular rank, was appointed to preside in it, and other alterations in the method of conducting trials were made, as mentioned p. 188. Caelius opposed his negative to these laws, as being rather privileges than laws (see p. 21.), and provided particularly against Milo, but was obliged to withdraw it, upon Pompey's declaring that he would support them by force of arms. See Middleton's Life of Cicero, i. 432.

4.); thus, Præstare aliquem, to be responsible for one, Cic. ad Q. Fr. i. 1. 3., Ego Messalam Cæsari præstabo, ib. iii. 8. So, Att. vi. 3. Plin.

Pan. 83.

When the day came, the magistrate ordered the criminal to be cited from the Rostra by a herald, Liv. xxxviii. 51. Suet. Tib. 11. If the criminal was absent without a valid reason (sine CAUSA SONTICA), he was condemned. If he was detained by indisposition or any other necessary cause, he was said to be excused (EXCUSARI), Liv. ibid. 52., and the day of trial was put off (dies PRODICTUS vel productus est).

Any equal or superior magistrate might, by his negative, hinder the trial from proceeding, ibid.

If the criminal appeared, (si reus se stitisset, vel si sisteretur,) and no magistrate interceded, the accuser entered upon his charge (accusationem instituebat), which was repeated three times, with the intervention of a day between each, and supported by witnesses, writings, and other proofs. In each charge the punishment or fine was annexed, which was called ANQUISITIO. Sometimes the punishment at first proposed was afterwards mitigated or increased. In mulctá temperarunt tribuni: quum capitis anquisissent, Liv. ii. 52. Quum tribunus bis pecuniâ anquisisset; tertiò se capitis anquirere diceret, &c. Tum perduellionis se judicare Cn. Fulvio dixit, that he prosecuted Fulvius for treason, Liv. xxvi. 3.

The criminal usually stood under the Rostra in a mean garb, where he was exposed to the scoffs and railleries (probris et conviciis) of the people, ibid.

After the accusation of the third day was finished, a bill (ROGATIO) was published for three market-days, as concerning a law, in which the crime and the proposed punishment or fine was expressed. This was called MULCTÆ PŒNÆVE IRROGATIO; and the judgment of the people concerning it, MULCTÆ PŒNÆVE CERTATIO, Cic. de Legg. iii. 3. For it was ordained that a capital punishment and a fine should never be joined together (ne pana capitis cum pecuniâ conjungeretur), Cic. pro Dom. 17. (Tribuni plebis, omissá mulctæ certatione, rei capitalis Posthumio dixerunt,) Liv. xxv. 4. On the third market-day, the accuser again repeated his charge; and the criminal, or an advocate (patronus) for him, was permitted to make his defence, in which every thing was introduced which could serve to gain the favour of the people, or move their compassion, Cic. pro Rabir. Liv. iii. 12. 58.

Then the Comitia were summoned against a certain day, in which the people, by their suffrages, should determine the fate of the criminal. If the punishment proposed was only a fine, and a tribune the accuser, he could summon the Comitia Tributa himself; but if the trial was capital, he asked a day for the Comitia Centuriata from the consul, or, in his absence, from the prætor, Liv. xxvi. 3. xliii. 16. In a capital trial the people were called to the Comitia by a trumpet (classico), Seneca de Irâ, i. 16.

The criminal and his friends, in the mean time, used every method to induce the accuser to drop his accusation (accusatione desistere). If he did so, he appeared in the assembly of the people, and said,

220

CRIMINAL TRIALS BEFORE INQUISITORS.

not be effected, the usual arts were tried to prevent the people from voting, (see p. 84.) or to move their compassion, Liv. vi. 20. xliii. 16. Gell. iii. 4.

The criminal, laying aside his usual robe (toga alba), put on a sordid, i. e. a ragged and old gown (sordidam et obsoletam), Liv. ii. 61. Cic. Verr. i. 58., not a mourning one (pullam vel atram), as some have thought; and in this garb went round and supplicated the citizens; whence sordes or squalor is put for guilt, and sordidati or squalidi for criminals. His friends and relations, and others who chose, did the same, Liv. iii. 58. Cic. pro Sext. 14. When Cicero was impeached by Clodius, not only the equites, and many young noblemen of their own accord (privato consensu), but the whole senate, by public consent (publico consilio), changed their habit (vestem mutabant), on his account, ibid. 11. 12., which he bitterly complains was prohibited by an edict of the consuls, c. 14. Pis. 8. 18. post redit. in Sen. 7. Dio. xxxvii. 16.

The people gave their votes in the same manner in a trial as in passing a law. (See p. 87.) Liv. xxv. 4.

If any thing prevented the people from voting on the day of the Comitia, the criminal was discharged, and the trial could not again be resumed, (si qua res illum diem aut auspiciis aut excusatione sustulit, tota causa judiciumque sublatum est,) Cic. pro Dom. 17. Thus Metellus Celer saved Rabirius from being condemned, who was accused of the murder of Saturnius forty years after it happened, Cic. pro Rabir., by pulling down the standard which used to be set up in the Janiculum, (see p. 80.) and thus dissolving the assembly, Dio. xxxvii. 27.

If the criminal was absent on the last day of his trial, when cited by the herald, he anciently used to be called by the sound of a trumpet, before the door of his house, from the citadel, and round the walls

of the city, Varr. de Lat. Ling, v. 9. If still he did not appear, he was banished (exilium ei sciscebatur); or if he fled the country through fear, his banishment was confirmed by the Comitia Tributa. p. 92.

See

II. CRIMINAL TRIALS BEFORE INQUISITORS. INQUISITORS (QUÆSITORES) were persons invested with a temporary authority to try particular crimes. They were created first by the kings, Liv. i. 26., then by the people, usually in the Comitia Tributa, iv. 51. xxxviii. 54., and sometimes by the senate, ix. 26. xliii. 2. In the trial of Rabirius, they were, contrary to custom, appointed by the prætor, Dio. xxxvii. 27. Suet. Cæs. 12.

Their number varied. Two were usually created (DUUMVIRI), Liv. vi. 20., sometimes three, Sallust. Jug. 40., and sometimes only one, Ascon. in Cic. pro Mil. Their authority ceased when the trial was over, (see p. 114.) The ordinary magistrates were most frequently appointed to be inquisitors; but sometimes also private persons, Liv. passim. There was sometimes an appeal made from the sentence of the inquisitors to the people, as in the case of Rabirius, Suet. Cæs. 11. Dio. xxxvii. 27. Hence, Deferre judicium a subselliis in rostra, i. e. a judicibus ad populum, Cic. Cluent. 6.

JUDICES, HOW CHOSEN, THEIR NUMBER.

221

Inquisitors had the same authority, and seem to have conducted trials with the same formalities and attendants, as the prætors did after the institution of the Quæstiones perpetuæ. To the office of Quæsitores Virgil alludes, En. vi. 432., Ascon, in action. in Verr.

III. CRIMINAL TRIALS BEFORE THE PRÆTORS.

THE prætors at first judged only in civil causes; and only two of them in these, the prætor Urbanus and Peregrinus. The other prætors were sent to govern provinces. All criminal trials of importance were held by inquisitors created on purpose.

But after the institution of the Quæstiones perpetuæ, A. U. 604, all the prætors remained in the city during the time of their office. After their election they determined by lot their different jurisdictions.

Two of them took cognizance of private causes, as formerly, and the rest presided at criminal trials; one at trials concerning extortion, another at trials concerning bribery, &c. Sometimes there were two prætors for holding trials concerning one crime; as on account of the multitude of criminals, concerning violence, Cic. pro Cluent. 53. Sometimes one prætor presided at trials concerning two different crimes, Cic. pro Cal. 13. And sometimes the Prætor Peregrinus held criminal trials, as concerning extortion, Ascon. in Cic. in tog. cand. 2. ; so also, according to some, the prætor Urbanus.

The prætor was assisted in trials of importance by a council of select judices or jurymen; the chief of whom was called JUDEX QUÆSTIONIS, or Princeps judicum, Cic. & Ascon. Some have thought this person the same with the prætor or quæsitor; but they were quite different, Cic. pro Cluent. 27. 33. 58. in Verr. i. 61. Quinctil. viii. 3. The judex quæstionis supplied the place of the prætor when absent, or too much engaged.

1. THE CHOICE OF THE JUDICES OR JURY.

THE JUDICES were at first chosen only from among the senators; then, by the Sempronian law of C. Gracchus, only from among the equites; afterwards, by the Servilian law of Cæpio, from both orders; then by the Glaucian law, only from the equites; by the Livian law of Drusus, from the senators and equites: but, the laws of Drusus being soon after set aside by a decree of the senate, the right of judging was again restored to the equites alone: then, by the Plautian law of Silvanus, the judices were chosen from the senators and equites, and some of them also from the plebeians; then, by the Cornelian law of Sylla, only from the senators; by the Aurelian law of Cotta, from the senators, the equites, and tribuni ærarii: by the Julian law of Cæsar, only from the senators and equites; and by the law of Antony, also from the officers of the army. See Manutius de Legg., for Sigonius, and Heineccius, who copies him, give a wrong account of

this matter.

The number of the judices was different at different times: by the

525; of Sylla and Cotta, 300, as it is thought, from Cic. Fam. viii. 8. ; of Pompey, 360, Paterc. ii. 76. Under the emperors, the number of judices was greatly increased, Plin. xxxiii. 1.*

By the Servilian law it behoved the judices to be above thirty, and below sixty years of age. By other laws it was required that they should be at least twenty-five, D. 4. 8., but Augustus ordered that judices might be chosen from the age of twenty (a vicesimo allegit), Suet. Aug. 32., as the best commentators read the passage.

Certain persons could not be chosen judices, either from some natural defect, as the deaf, dumb, &c.; or by custom, as women and slaves; or by law, as those condemned upon trial of some infamous crime, (turpi et famoso judicio, e. g. calumniæ, prævaricationis, furti, vi bonorum raptorum, injuriarum, de dolo malo, pro socio, mandati, tutela, depositi, &c.); and, by the Julian law, those degraded from being senators; which was not the case formerly, Cic. Cluent. 43. See p.7.

By the Pompeian law, the judices were chosen from among persons of the highest fortune.

The judices were annually chosen by the prætor Urbanus or Peregrinus, according to Dion Cassius, by the quæstors, xxxix. 7., and their names written down in a list (in ALBUM RELATA, vel albo descripta), Suet. Tib. 51. Claud. 16. Domit. 8. Senec. de Benef. iii. 7. Gell. xiv. 2. They swore to the laws, and that they would judge uprightly to the best of their knowledge (de animi sententia.) The judices were prohibited by Augustus from entering the house of any one, Dio. liv. 18.

They sat by the prætor on benches, whence they were called his ASSESSORES, or CONSILIUM, Cic. Act. Verr. 10., and CONSESSORES to one another, Cic. Fin. ii. 19. Sen. de Benef. iii. 7. Gell. xiv. 2.

The judices were divided into DECURIÆ, according to their different orders; thus, DECURIA SENATORIA JUDICUM, Cic. pro Cluent. 37., tertia, Phil. i. 8. Verr. ii. 32. Augustus added a fourth decuria, Suet. 32. Plin. xxxiii. 7. (because there were three before, either by the law of Antony, or of Cotta), consisting of persons of an inferior fortune, who were called DUCENARII, because they had only 200,000 sesterces, the half of the estate of an eques, and judged in lesser causes. Caligula added a fifth decuria, Suet. 16. Plin. xxxiii. 1. s. 8. Galba refused to add a sixth decuria, although strongly urged by many to do it, Suet. 14.

The office of a judex was attended with trouble, Cic. in Verr. i. 8., and therefore, in the time of Augustus, people declined it; but not so afterwards, when their number was greatly increased. Suet. et Plin. ibid.

2. THE ACCUSER IN A CRIMINAL TRIAL.

ANY Roman citizen might accuse another before the prætor. But it was reckoned dishonourable to become an accuser, unless for the

"The number of judges on each trial appears to have varied. In Milo's case (but that was by a special commission) 51 judges sate; 38 condemned him. In that of Gabinius, who was acquitted, of the 72 judges, 32 condemned him. See Middleton's Cic. i. 410. 437." — T.