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JUDI´CIUM PU´BLICUM

JUDI´CIUM PU´BLICUM The original distinction between civil and criminal jurisdiction at Rome, though not strongly marked as regards the classes of offences with which they were respectively concerned nor as regards the penalties which followed on conviction in either case, was yet always kept up by differences of procedure. Civil jurisdiction was regularly divided into proceedings in jure and in judicio,--that is, into proceedings, in the first instance, before the ordinary civil magistrate, the praetor; in the second, before a judex appointed by the praetor. Criminal procedure, on the other hand, was an inquiry (quaestio) undertaken by the magistrate, perhaps in some cases independently, but more often under guidance of a consilium; and the decision of the magistrate, when questioned by the employment of the right of provocatio, led to a trial before the people, a judicium populi. During the last century and a half of the Republic a kind of procedure grew up which was in some sort a fusion of these two processes, and which may be described as an application of civil procedure in some of its most salient points to criminal cases. The judicium publicum bears a resemblance to civil jurisdiction in the facts that the presiding magistrate is usually the civil magistrate, the praetor, and that the case is heard before a bench of judices. But it differs from civil procedure in that the old distinction between jus and judicium disappears, and the magistrate sits with the judices, guides their decisions, and pronounces the verdict. From this close assimilation of the functions of the magistrate and of the judex developed the custom of speaking of the judices as the consilium of the magistrate (Cic. Fam. 8.8, 3; pro Cluent. 30, 83), the number of the judices that formed this consilium being considerably larger than the number which decided an ordinary civil suit, and bearing more resemblance to the old bench of the recuperatores. Much of the terminology, however, of the judicium publicum is derived from the old criminal jurisdiction. The magistrate, who is sometimes said in civil terminology judicium exercere, is also called, in the terminology of the criminal law, a quaesitor (Cic. Clu. 20, 55; Serv. in Aen. 6.432) or one qui de ea re quaesit (Lex Acil. § 49 ; C. I. L. i. n. 198), while the judicia themselves are usually spoken of as quaestiones; and the criminal character of these, courts is shown further by the facts that anyone might be the accuser (Just. Inst. 4.18, 1: “Publica autem dicta sunt quod cuivis ex populo exsecutio eorum plerumque datur;” cf. Dig. 23, 2, 43, 10), and that condemnation was followed by strictly penal consequences. But, formally at least, the civil character of the court predominated; in the earliest established, that by the Lex Calpurnia of 149 B.C., the actio sacramenti was retained (Lex Acil. § 23); and in every case what the accuser demands is compensation for a delict and in the interest of the injured party. This is most obvious in trials for extortion and peculation, which were always followed by an assessment of damages (litis aestimatio, Lex Acil § § 58, 59 ;--Cic. pro Mur. 20, 42; ad Fam. 8.8, 3): yet since this compensation was also exacted in the interest of the state, and since the state attached consequences other than mere compensation to conviction in such trials, these courts belong not to private but to public law.

The judicia publica were usually presided over by the praetor, and the guidance of the earliest of these judicia, the quaestiones repetundarum, was entrusted to the praetor peregrinus (Lex Acil. § 12); but the growing numbers, not only of the quaestiones, but of the several divisions of each quaestio, rendered it necessary that other judges should preside, and the court was sometimes directed by a foreman chosen from the jury. The quaesitor or quaesitor judicii (Ascon. in Milon. p. 46) is often distinct from the praetor who grants the trial; and the judex quaestionis, who presided in the courts de veneficiis et sicariis, was a criminal judge of somewhat lower rank than the praetor, holding an office that belonged to the regular circle of the magistracies (Cic. Clu. 54, 148; Brut. 76, 264; Mommsen, Staatsr. ii. p. 586 if.). The judices who formed the consilia of the several presidents of these courts were selected from the album judicium, the register which furnished the juries both for criminal and civil cases [JUDEX], and the law by which each quaestio was established directed the mode in which the judices should be chosen for that particular quaestio. The presiding magistrate actively assisted in the investigation, directed the finding [p. 1.1033]of the jury (Ascon. in Milon. p. 46), and pronounced the sentence which was based on their verdict, the decision being given according to a bare majority, and equality of votes being followed by acquittal (Cic. Fam. 8.8, 3 ; Plut. Mar. 5). The magistrate could not qualify the sentence, since this was fixed by law; and there was no appeal from the decision of the judices. The appeal had never been allowed against the decision of a judex in civil cases: nor could the acts of the magistrate be appealed against either by provocatio or appellatio, since, during the trial, his acts were undistinguishable from those of the jury. The only possible appeal was against an act of the magistrate that formed a preliminary to the trial, and there is an instance in which such an appeal was employed (Cic. in Vatin. 14, 33; see INTERCESSIO).

The substitution of the judicia publica for the judicia populi was not effected by a sudden revolution in criminal judicature, but by a gradual extension of the former process. Fresh spheres of law were ever being usurped by the new system, and new standing courts (quaestiones perpetuae), modelled on this system, were from time to time constituted by special enactment. Each court might have somewhat different regulations as to procedure, and each depended for its validity on a separate lex. Thus the lex majestatis is accompanied by a quaestio de majestate (Cic. Clu. 35, 97); the legis quaestionesque on certain crimes are indissolubly connected (Cic. Phil. 1.9, 23), and the judge in a special court is one “qui ex hac lege quaeret” (Lex. Acil. § 17). To the last these judicia bore on them the marks of their gradual growth, and there was little attempt at arrangement or logical classification of crimes. Not unfrequently the same offences were grouped under different laws, and an accuser might choose whether he should prosecute a man under repetundae or peculatus, under vis or majestas, or whether he should bring the crime of incendium under the law de sicariis or the law de vi (Rein, Criminalrecht, p. 63). This lack of arrangement and of connexion between the offences grouped together was increased by the subsequent juristic interpretation, although at the same time attempts were made to determine definitely the character of the crimes covered by a single lex, and to prevent the possibility of an appeal to more than one law in the case of a single crime (Suet. Tit. 8, “vetuit inter cetera de eadem re plurimis legibus agi” ). So little continuity was there in the character of these courts that at a time when the most essential characteristic that was common to them, that of trial before a jury directed by a magistrate, had disappeared and given place to the cognitiones extraordinariae of the Empire, there was found no definition applicable to a judicium publicum, except that it was a court constituted by a special kind of lex (Dig. 48, 1, 1, “non omnia judicia, in quibus crimen vertitur, et publica sunt, sed ea tantum, quae ex legibus judiciorum publicorum veniunt” ).

The earliest notices of the term judicium publicum are found in the Lex Bantina of about 130 B.C. ( § 2, C. I. L. i. n. 197) and in the Lex Acilia Repetundarum of 123 B.C. ( § 11, C. I. L. i. n. 198); the earliest of these courts was that constituted by the Lex Calpurnia Repetundarum in 149 B.C., and shortly afterwards (in 142 B.C.) a quaestio de sicariis was established (Cic. de Fin. 2.16, 54). The Lex Acilia Repetundarum of 123 B.C., which we possess, is a reconstitution of the court for the trial of extortion, and it is probable that about the same time fresh courts were added by C. Gracchus. The law of Gracchus against judicial corruption “ne quis judicio circumveniretur,” was re-enacted by Sulla, who established a quaestio on its basis (Cic. Clu. 55, 157, “quam L. Sulla ejus rei quaestionem hac ipsa lege constitueret” ), but it is probable that it had formed the ground of a quaestio before the time of Sulla: and in the year 117 a quaestio de ambitu existed, which may be referred to the Gracchan period (Plut. Mar. 5). Sulla established several additional quaestiones, and may be said to have given the final form to criminal procedure at Rome. He re-established the court for the trial of extortion by the Lex Cornelia Repetundarum (Cic. pro Rab. Post. 4, 9), and instituted courts for the trial of treason by the Lex Cornelia de majestate (Cic. Fam. 3.1. 1, 2; pro Cluent. 35, 97), for the trial of assassination, poisoning, and incendium by the Lex Cornelia de sicariis et veneficis (Cic. Clu. 54, 118; Dig. 48, 1, 1; Just. Inst. 4.18, 5), and for trials in matters of breach of trust, inheritance, and forgery by the Lex Cornelia de falsis (Dig. 48, 1, 1), testamentaria (Just. Inst. 4.18, 7), or nummaria (Cic. in Verr. 1.42, 108). To the same period may perhaps be referred a quaestio de vi (established by a Lex Plotia, Sall. Cat. 31) and one on peculatus (Cic. Clu. 53, 147). In spite of the peculiarities of legislation which may have attached to these several courts, such for instance as the exclusion of the equites and lower orders from the operation of the law “ne quis judicio circumveniretur,” a principle which C. Gracchus had established and which Sulla maintained (Cic. Clu. 55, 151), there were some ordinances common to all these laws. Such was the rule which gave the accused the choice between having the votes given openly or by ballot, which was afterwards repealed (Cic. Clu. 20.55; 27.75), and that which gave accused of senatorial rank a wider right of challenging than was possessed by others (Cic. in Verr. 2.31, 77). Further changes were introduced by Caesar. Besides his alteration in the constitution of the album judicum [JUDEX], he reconstituted several courts by new laws. To him belong a Lex Julia de Repetundis, which introduced no change in the existing law beyond making anyone who shared in the spoils of a provincial governor liable to a charge of repetundae (Cic. pro Sest. 64, 135; pro Rab. Post. 4, 8: cf. ad Fam. 8.8, 2, for the formula “Quo ea pecunia pervenisset” ), and Leges Juliae de vi and de majestate (Cic. Phil. 1.9, 23). It is somewhat difficult to determine which of the Leges Juliae that created or re-instituted quaestiones are to be referred to Julius, and which to Augustus. Amongst them we find Leges Juliae de vi publica, de vi privata, peculatus, ambitus, de adulteriis, and de annona. The Lex Pompeia de parricidiis and the Lex Fabia de plagiariis were also laws on which courts of this kind rested (Dig. 48, 1; Just. Inst. 4.18). [p. 1.1034]

Certain penal consequences were from the first attached to condemnation in a judicium publicum, ranging from a fine to exile, which was, as a rule, the severest punishment during the Republic; and these penalties were progressively increased. Thus Caesar added to exile confiscation of half the property of the condemned, and attached to condemnation for parricide confiscation of the whole property (Suet. Jul. 42; D. C. 44.49), and in the time of the Empire death was not an unfrequent consequence of condemnation in these courts, confiscation of property being usually added. The jurists divide judicia publica into capitalia and non capitalia (Dig. 48, 1, 2). “Capitalia” are those “ex quibus poena mors aut exsilium est, hoc est aquae et ignis interdictio,” --relegatio, a modified exile introduced during the Empire not involving loss of caput. “Non capitalia” are those “ex quibus pecuniaria aut in corpus aliqua coercitio poena est.” Condemnation in a judicium publicum also involved disqualification of various degrees. Thus those condemned for ambitus were originally disqualified for holding office for ten years, and were at a later period excluded wholly from the senate and the magistracy (Schol. Bob. in Cic. pro Sulla, 5, 17), and as early as 123 B.C. condemnation in certain kinds of judicia publica excluded from a seat in the senate (Lex. Acil. § 13). Infamia, which during the Empire was the severest and most permanent kind of disqualification attached originally to condemnation in those courts where calumnia or praevaricatio had been proved (Dig. 3, 2, 1), was extended by a senatuscon-sultum as a consequence of vis privata (Dig. 48, 7, 1), and finally made the result of any condemnation in a judicium publicum (Dig. 48, 1, 7; Just. Inst. 4.18, 2; see INFAMIA).

(Mommsen, Römisches Staatsrecht, i. pp. 168 and 182 if., ii. pp. 223 and 569 if.; Lange, Römisches Alterthümer, iii. pp. 165, 455, 505; Rein, Criminalrecht der Römer, pp. 63 ff.; O. E. Hartmann, Ueber die römische Gerichtsver fassung, § 29, p. 314.)

[A.H.G]

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  • Cross-references from this page (26):
    • Cicero, Letters to his Friends, 3.1.1
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    • Cicero, For Aulus Cluentius, 97
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    • Cicero, Against Verres, 2.1.108
    • Cicero, Against Verres, 2.2.77
    • Cicero, For Aulus Cluentius, 20.55
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    • Cicero, For Rabirius Postumus, 4
    • Cicero, Against Vatinius, 14
    • Cicero, Philippics, 1.9
    • Suetonius, Divus Julius, 42
    • Suetonius, Divus Titus, 8
    • Plutarch, Caius Marius, 5
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