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]
