BOOK II. populi would have brought their case before the comitia tribunes. tributa populi; the plebeian aediles, who as magistrates of the plebs had no right of summoning the people, would have appeared before the concilium plebis. (iv) of the (iv) We have already described the characteristics of the jurisdiction of the tribunes. Where it was capital, it might in certain exceptional cases be conducted before the concilium plebis, but usually its destination was the comitia centuriata. Where it was pecuniary, the tribune would invariably have employed his right of bringing the matter before the assembly of the plebs1. of the triumviri capitales, C. In the list of the magistrates we have yet found none who fills the position of a prefect of police or even that of an ordinary justice of the peace exercising summary Functions jurisdiction and preserving public order. This deficiency was partly supplied by the triumviri capitales or tresviri nocturni2. The office was introduced as a standing institution about the year 289 B. c.3 Between 242 and 124 the appointment was transferred to the people-doubtless the comitia tributa populi, under presidency of the praetor-and the triumvirate became a magistracy. The number three continued during the greater part of the Ciceronian period, but Caesar raised the number to four 5, a change which was not permanent 6. Their general position was that of subordinate assistants to the other 1 An instance of both kinds of procedure is furnished by the case of Cn. Fulvius in 211 B. C. (Liv. xxvi. 3, quoted p. 330, note 1). 2 The latter name was probably derived from their duty of extinguishing fires (Paulus in Dig. 1, 15, 1). They were the officials mainly responsible for calling out the public fire-brigade (familia publica). Creati 3 Triumviri capitales tum primum creati sunt' (Liv. Ep. xi). may mean 'elected by the people' (see Zumpt, i. 2, p. 122); but the analogy of the appointment of the other lower magistrates and the evidence of Festus (p. 347) point to a later date (see Mommsen, Staatsr. ii. p. 595). Triumviri nocturni were believed to have existed before 289 (Liv. ix. 46). Festus, p. 347; Mommsen, l. c. Suet. Caes. 41; C. I. L. ix. n. 2845. The original number was restored by Augustus. magistrates in their criminal jurisdiction. As such their BOOK II. functions were twofold. (i) Their name capitales was derived from the duties in carrying out a which devolved on them after the sentence had been sentence; pronounced1. It was they who guarded the condemned prisoners and supervised the closing scene. Nay, if the order was death by strangling, they must fulfil it with their own hands; and it was they who in the Tullianum adjusted the noose to the necks of Lentulus and his comrades in Catiline's conspiracy 2. When death was effected by other modes they merely saw to the carrying out of the decree 3. liminarie (ii) On the triumvirs devolved duties preliminary to in conducting a criminal trial such as preventive imprisonment, and the the prefirst inquiry into the charge made after the prisoner's of a trial; arrest. Cicero in his speech for Cluentius presents us with a picture of Avilius arrested for a murder, brought before the triumvirs and confessing his guilt; but, if these magistrates decided that there was no evidence against the prisoner, he was immediately discharged o. But the triumvirs were also justices of the peace. as police magisThey heard ordinary police-court charges, such as those trates. of vagrancy or nocturnal disturbance; and a man found sleeping in a tavern and thought to be a runaway slave' was immediately brought before their tribunal". Their 1 Cic. de Leg. iii. 3, 6 'Vincla sontium servanto, capitalia vindicanto': cf. Sall. Cat. 55 'vindices rerum capitalium.' 2 Sall. l.c.; strangling is pre-eminently triumvirale supplicium (Tac. Ann. v. 9 [vi. 4]). 3 Val. Max. viii. 4, 2. ⚫ Cf. Varro on the quaestores parricidii (L. L. v. 81 'quaestores a quaerendo, qui conquirerent... maleficia, quae triumviri capitales nunc conquirunt '). Cic. pro Cluent. 13, 38. Avilius is said to have been set 'ante pedes Q. Manli qui tum erat triumvir.' The triumvirs sat, therefore, on some kind of tribunal or raised platform. Zumpt (i. 2, p. 128) thinks that they had three tribunals in the Basilica at the Columna Maenia. • ib. 13, 39. ' In 52 B.c. between the proposal and the passing of the special law against Milo Munatius et Pompeius tribuni plebis in rostra produxerant BOOK II. office was at the Columna Maenia in the Forum. Here practised an inferior class of criminal barristers, on whom The iudicium based on the prorocatio. They are procedure. § 6. The procedure of a iudicium populi and of the provocatio. We have already mentioned the view that the iudicia populi not populi were historically independent of the provocatio, and that the latter was merely a denial of the competence of a magistrate. This view presumes the original existence distinct of popular courts with fully admitted spheres of jurismethods of diction, and it necessarily asserts that the procedure of the provocatio was in the main identical with that of a iudicium populi. The only difference is in the beginning of the action. In the one case the word provoco must be employed by the accused in order to set the trial in motion, in the other it need not be used, the magistrate who recognizes his limitations himself starting the mechanism of the trial before the people. In both courts the magis triumvirum capitalem eumque interrogaverant an Galatam Milonis servum 'Sectus flagellis hic triumviralibus Cf. Plaut. Amph. i. 1, 3. trate presides, but the one is a court of first instance, the BOOK II. other a court of appeal'. But the same result may be reached even if we disbelieve in a self-existent popular jurisdiction of early days. Even if the iudicia populi had grown out of the provocatio, yet an obvious motive for the distinction between the two modes of procedure would have been that, while a trial before the people was set on foot by a magistrate as the result of his realizing the limitations on his power, the provocatio, when required to start the same procedure, was the consequence of his not realizing these limitations. Nor need the view that the iudicia populi were an outgrowth of the provocatio lead us to the improbable conclusion that the popular courts of Rome always continued to be formally courts of appeal, that in every case the magistrate pronounced a sentence which he knew that he had no power to execute, and that the activity of the iudicia populi could only be aroused by those sentences coming on appeal to the people 2. The procedure of the iudicium populi consisted of two stages. in a iudi (i) The magistrate who means to impose a sentence Procedure which he knows will subject him to the provocatio, holds cium populi. a preliminary investigation (anquisitio) before an informal anquisitio. assembly (contio) which he has summoned 3. This in 1 On the conditions of the appeal and the supposed disability of confessi and of criminals caught in the act, see Appendix. 'This is not necessarily implied in the words of Cicero (de Leg. iii. 12, 27) 'omnibus magistratibus... iudicia dantur . . . ut esset populi potestas ad quam provocaretur.' He need not mean that the populi potestas to assert itself presupposes a temporary condemnation (Mommsen in Neue Jenaische Litteraturzeitung for 1844, p. 258). What is stated is that all magistrates are recognized as judges in order to ensure the working of the popular courts. The provocatio was the ultimate basis for much, perhaps for all, of the authority of these courts, and jurisdiction was necessary for the magistrate at Rome, to ensure a trial before the people. 'Anquisitio perhaps means an inquiry 'on both sides,' i. e. through accusation and defence (Lange, Röm. Alt. ii. p. 470); cf. Festus, p. 22 The BOOK II. vestigation lasts for three days and is followed by a judgement or proposal as to the penalty either in the original shape put forward at the beginning of the inquiry or in an amended form. The proposals made by the magistrate at these three contiones are spoken of as 'accusations'; hè is represented as a prosecutor and his final accusation is embodied in a bill. Proceedings in the comitia. (ii) The scene now shifts to the assembly. After the legal interval of three market days the proposal is brought by the magistrate before the comitia and is either accepted or rejected by the assembled people. This comitia was, as in the case of legislative assemblies, preceded by a contio. The magistrate's final exposition of his proposal before this contio is spoken of as his 'fourth accusation' (quarta accusatio)'. The proposal itself is always a ‘bill directed against a person' (inrogatio) 2, although by a curious restriction of technical nomenclature the word inrogare seems to be used only of varying fines (multae) and not of fixed penalties (poenae). The usual expression for the pronouncement of the latter is iudicare, a word which in this context means 'adjudge the penalty,' that, anquirere est circum quaerere.' It represents a process in which the magistrate and the accused produce evidence on either side. 1 Cic. pro Domo, 17, 45 ‘cum tam moderata iudicia populi sint a maioribus constituta.. ne inprodicta die quis accusetur, ut ter ante magistratus accuset intermissa die quam multam inroget aut iudicet (i. e. leaving an interval during which he should propose a fine or adjudge the penalty by framing a rogatio) quarta sit accusatio trinum nundinum prodicta die, quo die iudicium sit futurum'; cf. App. B. C. i. 74 (of the trial of Merula and Catulus in 87 B.C.) τετράκις δὲ ἐχρῆν κηρυττομένους ἐν ὡρισμένοις ὡρῶν διαστή μaoiv åλŵvai. A good example of the three contiones and the quarta accusatio is furnished by Clodius' prosecution of Milo for vis (p. 341). The first contio was on Feb. 2, the second on Feb. 6, the third on Feb. 17 (Cic. ad Q. fr. ii. 3, 1, 2 and 3), the quarta accusatio on May 7 (ad Q. fr. ii. 7). These days are in the Calendar marked respectively N, N, NP and F or N. Yet it was held that contiones were not possible on dies nefasti (Macrob. i, 16, 29), and we should certainly have expected the final hearing to be on a comitial day. Lex Tabulae Bantinae, 1. 12, see p. 13, note 1, and cf. Cic. pro Domo, 17, 43 'leges privatis hominibus inrogari.' |