[ there must be a right behind it; it was only in cases where the magistrate could judge alone that the provocatio was an act of grace. BOOK II. right of provocatio monarchy. But the right of challenge possessed by the individual But the citizen could not have been a very wide one. If we consider the extent of the military and religious jurisdiction of the exceeding ly limited king, both of which excluded the appeal, the competence of during the the people, so far as the sphere of their permanent jurisdiction was concerned, must have been extremely small, and 'in this conflict of competence the position of the king was far more favourable than that of the people, since the people could be summoned only by the king. Hence the popular share in criminal jurisdiction was reduced to a minimum1? We have no means of determining whether this popular jurisdiction grew out of an earlier clan jurisdiction, or whether Rome was originally governed by religious and military law and the provocatio was an aftergrowth, the result of custom and of a custom chiefly due in origin to the voluntary waiving of his rights by the king. § 2. The Criminal Procedure of the Early Republic. lican The abolition of the monarchy was soon followed by a Republimitation of the military jurisdiction of the magistrates laws of who replaced the king. P. Valerius, one of the first provocatio. consuls, is said to have introduced a law allowing an appeal to the people in their centuries against every sentence of a magistrate which was pronounced against the life of a Roman citizen. This lex Valeria (509 B. c.) completed the The first popular jurisdiction which had been growing up during the monarchy so far as capital and corporal sentences were concerned, and from this time no power but the people has the right to sanction finally the death penalty and scourging 1 Ihering, Geist, i. p. 258. lex Valeria. BOOK II. within the walls. When Cicero speaks of the expulsion of the kings having been followed by 'the right of appeal on all' matters,' he cannot mean that every sentence, pecuniary or otherwise, which was pronounced by a magistrate, could be appealed against; for this was never the case. His meaning may be that the sphere of the appeal was now made universal in so far as it extended to military jurisdiction within the ring-wall of the city. Outside this circle martial law could still be asserted by the magistrate with imperium, and one of the most important distinctions between the imperium at home (domi) and abroad (militiae) was the untrammeled character of the latter with reference to the appeal. The limit between the spheres was originally the pomerium, later it became the first mile-stone outside the walls. Beyond this limit the axes were borne within the fasces, within it they were laid aside. The quaestores of the Republic. The consuls were the supreme judges; but the principle parricidii of delegation was continued and seemingly in a more permanent form. The consuls were given two assistants for general purposes, the annually appointed quaestores whom they nominated: and the new constitution of 509 seems to have made them more permanent and essential than those of the monarchy. Then they had been regular vicegerents of the king, but had been nominated only for a given time; now they become an annual element in the constitution. Their functions are as unlimited as those of 1 Cic. de Rep. ii. 31, 53 'ne quis magistratus civem Romanum adversus provocationem necaret neve verberaret'; cf. Liv. ii. 8. Dionysius (v. 19) adds ζημιοῦν εἰς χρήματα to ἀποκτείνειν ἢ μαστιγοῦν, and Plutarch (Publ. 11) seems to give the law the same wide scope. He also thinks (1. c.) that Valerius fixed the highest fine which the consul might impose (multa suprema, see § 4). Provocationes omnium rerum' (Cic. de Rep. i. 40, 62). Livy (iii. 20) carries this expression back to the middle of the fifth century B. C. But the question between the pomerium and the first milestone was a disputed one as late as 215 B.C. (Liv. xxiv. 9). See p. 304. their masters, the consuls: but amongst them two duties BOOK II. stand out prominently, criminal jurisdiction and finance. The city quaestors (quaestores urbani), as they were subsequently called to distinguish them from their provincial colleagues, were known as quaestores parricidii and quaestores aerarii1. In both capacities they were permanent delegates of the consuls, but it cannot be supposed that these magistrates needed to employ them invariably for purposes of appellate jurisdiction. The consul could in all cases give sentence himself and appear to defend it before the people. But possibly regard for his dignity, and certainly respect for his time would lead him to choose the more indirect manner of communicating with the comitia. Although the designation parricidii rather tends to show that the chief judicial employment of the quaestors was intended to be ordinary capital cases, the trial, that is, of crimes that did not directly affect the welfare of the state 2, yet tradition does not regard them as having confined their activity to this class of cases. Some of the conflicting traditions concerning the trials of Sp. Cassius and of Camillus represent the quaestors as having been employed in these two trials for treason 3. By their side we still find the duumviri perduellionis reappearing at intervals during the Republic. Before the revival of the office for the trial of C. Rabirius in 63 B. C., its existence is suggested for one famous trial of earlier times, that of M. Manlius in 384 B. C. 4. The tendency of the Republic was to substitute popular 1 The quaestores parricidii and aerarii are identified by Zonaras (vii. 13), following Dio Cassius, and by Varro (L. L. v. 81). This identity is denied by Pomponius (in Dig. i. 2, 2, 22, 23); but his denial seems to amount only to the belief that both kinds of quaestores existed side by side, without their functions being interchangeable; those, e. g., employed for finance would not have been employed for jurisdiction, and vice versa. 'Hence their supposed employment in the trial of M. Volscius for false evidence (459 B. C., Liv. iii. 24). Cic. de Rep. ii. 35, 60; Plin. H. N. xxxiv. 4, 13. 4 Liv. vi. 20. Election of the quaestors after 447 B. C. Mode of appointment of the duumviri nis. : BOOK II. election for nomination, and after 447 B. C. the quaestors were elected by the comitia tributa1. Those employed for criminal purposes were chosen now from elected magistrates, but the theory of special consular delegation in each given case remained unimpaired. It is quite possible that the duumvirate, too, became a magistracy in the sense of owing its existence to the people, but it was a magistracy of an occasional and extraordinary character. The decision as to perduellio- whether duumviri should be appointed in any given case would doubtless rest ultimately with the comitia2, but the assembly may have chosen, according to circumstances, a more or less direct method of creation. It may at times have given them a formula contained in the lex which created them, and in this case the appeal or its equivalent, the popular jurisdiction consequent on the necessity of allowing the appeal, would perhaps have been excluded. The duumvirs may have decided independently and without appeal as special commissioners having a full mandate from the assembly. Another method of appointment—one that was apparently employed for the trial of Rabirius in 63 B. C.—was effected by the people giving the magistrate power to nominate duumvirs 3. The comitia in this case neither created the delegates nor gave them instructions, and here the formalities of condemnation by the magistrate and appeal to the people were probably always preserved. Presidency of the by these With respect to the control of the assembly which these two classes of delegates might be called on to consult, there assembly is positive evidence that the quaestor, although a magistrate delegates. without the ius agendi cum populo, summoned and presided over the assembly himself. The auspices necessary for the purpose were gained from a superior magistrate 5. 1 Tac. Ann. xi. 22. Dio Cass. xxxvii. 27; Cic. pro Rab. 4, 12; cf. 5, 17. 3 Mommsen, Staatsr. ii. 1, p. 617. * See Livy's account (iii. 24) of the trial of M. Volscius; 'tribuni... comitia quaestores habere de reo quaestorian formula in Varro, L. L. vi. 91. passuros negabant,' and the Varro, l. c.; cf. Mommsen, Staatsr. i. pp. 93, 195. In the same way the duumvirs may have had the summons and guidance of the comitia centuriata. BOOK II. tiveness provocatio absence adequate Legislation had now secured appeal against execution Ineffecand perhaps against corporal punishment in political as of the well as non-political jurisdiction. But the guarantee was through merely a promise, rendered ineffective by the absence of the an adequate sanction. Before the full development of the of an power of veto possessed by the tribunes, the only weapon sanction within the reach of the would-be appellant was offered by the publicity of the proceedings. He would throw himself on the mercy of the crowd, and trust that their shouts or murmurs would bend the magistrate to respect the law. Quiritare was the name given to this informal request for help from the Quirites gathered near the tribunal or the scene of the levy 1, and tradition spoke of Publilius Volero and Sp. Maelius as having employed this last means of defence 2. Even after the institution of the tribunate, it still had its uses, for the tribune might shrink from the exercise of his power until he was helped or goaded on by the public opinion which he was supposed to voice. But such a casual sanction would have been fatal to any right, and it was the work of later laws such as the third Valerian and the Porcian, to supply means for the enforcement of rights already gained. Finally cir- This cumstances combined to render the act of provocatio almost eventually unnecessary. Customary law dictated that the magistrate supplied should not pronounce a sentence which he knew must lead provocatio to the appeal, and, consequently, when he held that the disappear. crime deserved such a sentence, he made no provisional pronouncement of his own but went directly to the people. Secondly, there was the practice, to which certain breaches of military or civic duty furnished a few exceptions, of permitting the accused who had been brought before the 1 Varro, L. L. vi. 68 'quiritare dicitur is qui Quiritum fidem clamans implorat.' Cf. Cic. ad Fam. x. 32, 3. sanction and the tends to |