BOOK II. the conditions. The accuser and accused may have had the power of rejecting half of each by challenging iudices alternately. The remaining half of each, when joined together, would have formed the final panel. It is, indeed, possible that six complete decuries may for this purpose have been given by the praetor. After the challenge the equivalent of three decuries would have been left, and from this the consilium might have been selected by a resort to the ordinary right of challenge, allowed to the parties under the system prevailing before the Vatinian law 1. Ambi Vatinius. A slight ambiguity in Vatinius' law is said to have guity in this law of led to a controversy, in which the legislator himself was a partner. In 58 B. C. Vatinius was accused under the lex Iunia Licinia for irregularities in his legislation of the previous year. He appealed against the structure of the court, and we are told (although not on the best authority) that the appeal was based on the assumption, not admitted by the presiding praetor, that the temporary president of the court (iudex quaestionis) might be challenged like the other iudices of the consilium3. If 'We might imagine that the parties, not the praetor, presented the consilia or groups of decuries which were to be challenged; but it is difficult to believe that general judicial arrangements would have permitted of such a free choice, and Cicero distinguishes the mode of selecting a jury by the rejection of alternate iudices from the system of editio iudicum, i. e. their presentation by the parties (pro Planc. 15, 36). It may be remarked, however, that this contrasted editio is that of the lex Licinia de sodaliciis, which gave to the plaintiff a choice far in excess of that of the defendant. 2 Cic. in Vat. 14, 33. Schol. Bob. p. 323 'cum praetor C. Memmius quaesitorem sortito facere vellet et Vatinius postularet ut ipse et accusator suus mutuas reiectiones de quaesitoribus facerent (ipsius enim Vatinii lege quam tulerat in tribunatu non satis aperte neque distincte apparebat utrum sorte quaesitor esset deligendus an vero mutua inter adversarios facienda reiectio) conspirati quidam pro ipso Vatinio immissi tribunal conscenderunt et sortes, quae intra urnam continebantur, dispergere adgressi sunt, atque ita effectum est gratiose per P. Clodium ut omnia secundum voluntatem suam Vatinius obtineret.' the statement is correct, Vatinius' contention was that three BOOK II. or two quaesitores must be presented with the consilia; and, if the praetor's ruling was valid, either they need not be presented or the three or the two must, after presentation, be left untouched by the parties, for the praetor to determine which was ultimately to preside. Whatever its scope, this lex Vatinia must have satisfied a want and served more than a temporary purpose, for it is mentioned as still existing in 55 B. C.1 iudices de sodaliciis. editicii. Another change in the mode of selecting iudices, which Choice of was introduced towards the close of the Republic, was under the a still further approach to the older view that the iudex lex Licinia is given by the parties (iudicis editio). But it was confined Iudices to a single quaestio and based on special grounds. The Licinian law of Crassus' second consulship (55 B. C.), which aimed at the suppression of associations (sodalicia or sodalitates) which could be used for illegal political practices, provided that the juries empanelled for the purpose should be composed of what were now called editicii iudices, that is, of a panel presented in the first instance by the accuser and modified by the challenge of the defendant. The principle was no new one. lex Acilia repetundarum seems to have contained the provision that the prosecutor should select a hundred iudices, of whom the accused might challenge fifty 2; and before the date of the lex Licinia de sodaliciis a proposal had been made in the senate, probably in the debate preceding the Tullian law of ambitus3, that for the trial of this particular crime the accuser should select, and the accused reject, a certain number of jurymen. The scheme of the Licinian law was that the accuser should name four tribes from which the iudices were to be chosen *; 2 Lex Acilia, 1. 19. 1 Cic. pro Planc. 15, 36. The Cic. pro Planc. 17, 41; cf. pro Mur. 23, 47 'Idem editicios iudices esse voluisti.' 1 Cic. pro Planc. 15, 36 'Neque enim quidquam aliud in hac lege nisi editicios iudices es secutus: quod genus iudiciorum si est aequum ulla Motive of the change. BOOK II. of these the accused might challenge one, and the panel was then to be constituted of the remaining three. This procedure was adopted in the trials of Plancius and of Messius in 54 B. C.1 The motive for the application of such a system to the offence of forming sodalicia was the desire of securing a jury cognizant of the` facts. It was thought that the prosecutor would select those tribes. in which illegal canvassing had been most in evidence, and that the iudex would thus perform his prehistoric function of a witness as well as of a judge. The peculiar harshness of the ordinance, which gave far the greater power of choice to the accuser, led to the conception that editicii iudices were pre-eminently those put forward by a single litigant 3. Introduction of the The novel introduction of the tribe into the jury system tribe into is explained by the object of the law; but its entrance the jury into the sphere of jurisdiction must not be supposed to system. have excluded reference to the three orders in the choice of iudices. Since, however, no previous judiciary law, in its instructions for the framing of the album, seems to have prescribed a selection from the tribes, which in the case of the senatorial members of the register would have been obviously impossible, it is not easy to see how in re nisi in hac tribuaria, non intellego quam ob rem senatus hoc uno in genere tribus edi voluerit ab accusatore neque eandem editionem transtulerit in ceteras causas.' 1 Cic. pro Planc. 16, 38 'Tu autem, Laterensis, quas tribus edidisti?... Quid Plancio cum Lemonia? quid cum Ufentina? quid cum Clustumina? Nam Maeciam non quae iudicaret sed quae reiiceretur esse voluisti'; ad Att. iv. 15, 9 'Messius defendebatur a nobis, e legatione revocatus: nam eum Caesari legarat Appius. Servilius edixit ut adesset. Tribus habet Pomptinam, Velinam, Maeciam.' 2 Cic. pro Planc. 15, 37 'Hoc igitur sensimus; cuiuscumque tribus largitor esset... quam quisque tribum turpi largitione corrumperet, eum maxime iis hominibus, qui eius tribus essent, esse notum. Ita putavit senatus, cum reo tribus ederentur eae quas is largitione devinctas haberet, eosdem fore testes et iudices.' Serv. ad Verg. Eclog. iii. 50 'editicius est iudex quem una pars eligit'; cf. Cic. pro Planc. 17, 41. a tribal choice could be combined with the existing album BOOK II. iudicum. With respect to the senatorial element, it is probable that there was never any selection by the parties. In the earlier suggestion for iudices editicii made during the Ciceronian period 125 jurors of the equestrian order were to be chosen by the plaintiff, seventy-five rejected by the defendant and fifty left to judge'. The tribuni aerarii may be included in this category, but senators are not. The addition by some other means of twentyfive senators to a similar number from each of the other orders would have given the normal number of seventyfive 2. Analogy, therefore, makes it probable that the editio of the Licinian law did not apply to the senators available for jurisdiction, and practical considerations seem to yield the same result; for, although a sufficient number of senators may have been found in three Roman tribes, there could be no guarantee that this would always be the case. It seems equally clear that, if the album was not drawn up tributim, the choice of members of the other orders could not have been made with reference to this register at all. Doubtless equites and tribuni aerarii were to constitute the remainder of the panel prescribed by the Licinian law, but these must have been chosen from the selected tribes, not from the album. This is implied in speaking of the choice as one made from the whole people, and not from jurors chosen for a given case (delecti) from the register. We do not know how the required members of the two orders were chosen from the tribes. Perhaps their qualifications were proved by 1 Cic. pro Planc. 17, 41 'An vero nuper clarissimi cives nomen editicii iudicis non tulerunt, cum ex cxxv iudicibus, principibus equestris ordinis, quinque et LXX reus reiiceret, L ferret, omniaque potius permiscuerunt quam ei legi conditionique parerent; nos neque ex delectis iudicibus sed ex omni populo, neque editos ad reiiciendum sed ab accusatore constitutos iudices ita feremus ut neminem reiiciamus?' 3 p. 447. 'See note 1, and cf. pro Planc. 16, 40 'Tu deligas ex omni populo aut amicos tuos aut inimicos meos?' BOOK IL the quaestors and their selection made by the urban praetor. There is some evidence that, after the choice from the three tribes had been made, the selection even then might not be final. We read of the challenge of five jurors permitted to the accused on the consent of the praetor and the iudices themselves1. If the trial in which this occurred was one de sodaliciis, as seems to have been the case, the lex Licinia must have given a permissive right of reiectio, at least to the accused, even after the court had been constituted from the three tribes which had survived his challenge". The assize. § 17. The course of the trial in a quaestio perpetua. The Roman criminal assize, which commenced as soon as the list of iudices for the year had been prepared 3, seems to have closed with the first day of September, in the sense that the name of no accused could be presented after this date, although a trial once begun pursued its normal course and might even run on uninterruptedly into the following year. The primary object of this limitation was probably to secure, if possible, the termination of the case before the magistrate who had begun the hearing: since, although it was lawful, it was not expedient that the iudicium should be transferred to his successor 5. 1 Cic. pro Planc. 16, 40 'Tu... ne quinque quidem reiectis, quod in proximo reo de consilii sententia constitutum est, cogas causam de fortunis omnibus dicere?' There is no real evidence that the president of the court was chosen by one party or by both. The fact that we know of two different quaesitores for 54 B.C., Alfius in the case of Plancius (p. 430) and Servilius in the case of Messius (p. 454, note 1), does not of itself prove the point. The arrangements for these supplementary quaestiones are too little known to justify such a conclusion. See p. 430. $ Dio Cass. xxxix. 7. Under the lex Acilia the prosecution must be undertaken before the kalends of September (1. 7), and a patronus is not to be given to one who does not make the nominis delatio before this date (1. 9). Cf. Cic. in Verr. Act. i. 10, 30, and see Mommsen in C. I. L. i. p. 64. |