1. Jurisdiction in the Royal Period:
In the royal period criminal jurisdiction, in so far as it was a function of secular administration, belonged by right to the king. The titles quaestores parricidii and duumviri perduellionis, belonging to officials to whom the royal authority in these matters was occasionally delegated, indicate the nature of the earliest crimes brought under secular jurisdiction. The royal prerogative passed to the republican magistrates, and embraced, besides the right to punish crimes, the power to compel obedience to their own decrees (coercitio) by means of various penalties.
2. The Right of Appeal:
But the right of the people to final jurisdiction in cases involving the life or civil status of citizens was established by an enactment (lex Valeria) which is said to have been proposed by one of the first consuls (509 BC), and which granted the right of appeal to the assembly (provocatio) against the execution of a capital or other serious penalty pronounced by a magistrate (Cicero De Re Publica ii.31, 54; Livy ii.8, 2; Dionysius v.19). This right of appeal was reinforced or extended by subsequent enactments (leges Valeriae) in 449 and 299 BC. It was valid against penalties imposed by virtue of the coercive power of the magistrates as well as those based upon a regular criminal charge. Generally the magistrates made no provisional sentence of their own, but brought their charges directly before the people.
(1) Penalties.
The death penalty was practically abrogated in republican times by allowing the accused the alternative of voluntary exile. The Romans rarely employed imprisonment as a punishment. The imposition of fines above a certain amount was made subject to the right of appeal. At first the dictator possessed absolute power of life and death over the citizens, but this authority was limited, probably about 300 BC (Livy xxvii.6, 5), by being made subject to the right of appeal
(2) The Porcian Law.
The right of appeal to the people was valid within the city and as far as the first milestone; and although it was never extended beyond this limit, yet its protection was virtually secured for all Roman citizens, wherever they might be, by the provision of the Porcian law (of unknown date), which established their right to trial at Rome. In consequence of this a distinction of great importance was created in criminal procedure in the provinces, since Roman citizens were sent to Rome for trial in all serious cases, while other persons were subject to the criminal jurisdiction of the municipalities, except when the governor summoned them before his own tribunal.
3. Popular Jurisdiction Curtailed:
The exercise of popular jurisdiction in criminal matters was gradually curtailed by the establishment of permanent courts (quaestiones perpetuae) by virtue of laws by which the people delegated their authority to judge certain classes of cases. The first of these courts was authorized in 149 BC for the trial of charges of extortion brought against provincial governors. Compensation was the main purpose of accusers in bringing charges before this and later permanent courts, and for this reason, perhaps, the procedure was similar to that which was employed in civil cases. A praetor presided over the tribunal; a number of judices took the place of the single juror. The laws by which Sulla reorganized the systems of criminal jurisdiction provided for seven courts dealing individually with extortion, treason, peculation, corrupt electioneering practices, murder, fraud, and assault.
4. Jurors:
The judices, or jurors, were originally chosen from the senate. A law proposed by C. Gracchus transferred membership in all the juries to the equestrian class. Sulla replenished the senate by admitting about 300 members of the equestrian class, and then restored to it the exclusive control of the juries. But a judicial law of 70 BC provided for the equal representation of all three classes of the people in the courts. There were then about 1,080 names on the list of available jurors, of whom 75 seem to have been chosen for each trial (Cicero In Pisonem 40). Caesar abolished the plebeian jurors (Suetonius Caesar 41). Augustus restored the representatives of the third class (Suetonius Aug. 32), but confined their action to civil cases of minor importance. He likewise excused the members of the senate from service as jurors.
5. Disappearance of Criminal Courts:
The system of criminal courts (quaestiones perpetuae) diminished in importance under the empire and finally disappeared toward the close of the 2nd century. Their place was taken by the senate under the presidency of a consul, the emperor, and eventually by imperial officials by delegated authority from the emperor. In the first case the senate stood in somewhat the same relation to the presiding consul as the jurors in the permanent courts to the praetor. But the emperor and imperial officials decided without the help of a jury, so that after the 3rd century, when the judicial competence of the senate was gradually lost, trial by jury ceased to exist. An important innovation in the judicial system of the empire was the principle of appeal from the decision of lower courts to higher tribunals. For the emperors and eventually their delegates, chiefly the praefectus urbi and praefectus praetorio, heard appeals from Roman and Italian magistrates and provincial governors.
6. Right of Trial at Rome:
Under the early empire, provincial governors were generally under obligation to grant the demand of Roman citizens for the privilege of trial at Rome (Digest xlviii. 6, 7), although there appear to have been some exceptions to this rule (Pliny, Epist. ii.1l; Digest xlviii.8, 16). Lysias, tribune of the cohort at Jerusalem, sent Paul as prisoner to Caesarea, the capital of the province, so that Felix the procurator might determine what was to be done in his case, inasmuch as he was a Roman citizen (Ac 23:27), and two years later Paul asserted his privilege of being tried at Rome by the emperor for the same reason (Ac 25:11,21).
Roman citizens who were sent to Rome might be brought either before the senate or emperor, but cognizance of these cases by the imperial tribunal was more usual, and finally supplanted entirely that of the senate, the formula of appeal becoming proverbial: cives Romanus sum, provoco ad Caesarem (Kaisara epikaloumai: Ac 25:11).
As Roman citizenship became more and more widely extended throughout the empire its relative value diminished, and it is obvious that many of the special privileges, such as the right of trial at Rome, which were attached to it in the earlier period must have been gradually lost. It became customary for the emperors to delegate their power of final jurisdiction over the lives of citizens (ius gladii) to the provincial governors, and finally, after Roman citizenship had been conferred upon the inhabitants of the empire generally by Caracalla, the right of appeal to Rome remained the privilege of certain classes only, such as senators, municipal decurions (Digest xlviii.19, 27), officers of equestrian rank in the army, and centurions (Dio Cassius lii.22, 33).
LITERATURE.
Greenidge, The Legal Procedure of Cicero's Time, Oxford, 1901; Kruger, Geschichte der Quellen u. Litteratur des romischen Rechts, Leipzig, 1888; Mommsen, Romisches Strafrecht, Leipzig, 1899; Roby, Roman Private Law in the Times of Cicero and of the Antonines, Cambridge, 1902; Sohm, The Institutes of Roman Law, translated by J.C. Ledlie, Oxford, 1892.
George H. Allen