guarded against, not only by the possible refusal of the magistrate to allow such an appeal, if it were frivolous,1 but also by the refusal of a colleague or tribune of the people to intercede against a judicial decision, or by the further refusal of a magistrate to allow a popular assembly to be called for the purpose of appeal. We must not therefore imagine that the Roman popular assembly was often called together to act as a court of justice. The Roman citizens had ample leisure to attend to their private affairs. At any rate, the Roman state laid no such immoderate claims to their judicial functions as that of Athens,

CHAP.

V.

offences.

Besides this, we must remember that during the whole Political time of the republic every pater familias continued to exercise in his family the patria potestas; that the members of each family formed a kind of family court; and that the offences of slaves were punished by their masters and not by public magistrates.

It was therefore principally to

a capital character, and giving decisions from which an appeal lay to the people. An acquittal by the people could not fail to be derogatory to their authority. For this reason special judges (quæstores) were appointed to act as their deputies. These quæstores, dating from the regal period, were nominated up to 449 B.C. by the consuls themselves. At that time they were first elected by the people and invested with the character of treasury officers, whereby their jurisdiction was chiefly directed to the prosecution of the offences of embezzlement of public money, of defalcation or evasions of payment due to the exchequer. When occasion required, the original character and office of the criminal quæstors were revived. So Sp. Cassius, M. Volscius and Camillus were prosecuted by quæstors (Cicero, De Re Publ. ii. 35, 60; Liv. ii. 41, iii. 24; Plin. Hist. Nat. xxxiv. 4, 13). These criminal trials by quæstors must have been in use during the whole period up to 149 B.C., when the quæstiones perpetuæ were established, the name for which can be explained only on the supposition that quæstors continued to exercise criminal jurisdiction. On emergencies of greater moment, when the safety or honour of the state seemed endangered, the questio was entrusted by decree of the senate and people to the highest magistrates of the state-prætors, consuls, or even dictators as shown by Livy, iv. 51, ix. 26, xxix. 20.

The law did not punish a magistrate who refused to listen to the demand of appeal. It only declared that such a magistrate had done wrong.

This could be done by the refusal of the consul or prætor to allow the auspices to be taken for the holding of an assembly. Mommsen, R. Staatsr. i. p. 145 f. In case the consul or prætor delegated his auspices to a quæstor for the occasion, it appears that the latter could convene a popular assembly. Liv. iii. 24, 7. Dion. viii. 77.

BOOK
VI.

Penal powers of the state.

Defects of

popular jurisdic

tion.

try political offences that the judgment of the people was appealed to. But the definition of political offences was much more comprehensive than what we are accus.. tomed to in our time. Among the Romans this term included murder, especially by poison, besides arson, forgery, and other crimes by which the public peace was threatened; whereas theft, libel, and other offences committed against private personages were prosecuted by means of a civil suit, and were not otherwise punished than by payment of fines equal in amount to the damage done, or exceeding it, as law or custom prescribed.

It strikes us at once that this distinction between criminal and civil law was very imperfect, and that the right of the state to inflict punishment for private offences was unduly restricted. But in this matter the Roman state forms no exception. We find that with other nations too the penal power of the state came to be recognised but slowly and gradually, and that in the first phases of society every individual regarded it as his duty and his privilege to obtain by his own strength satisfaction for the injuries he had received. The state for a long time was content with maintaining internal peace only in the main, and moderating self-help, especially with regulating and keeping within limits the atonement which the offender owed to the injured according to divine lawi.e. according to the human feeling of justice-and with recommending or enforcing the payment of fines as a substitute for retaliation and revenge. The Roman people, however, on their first appearance in history had passed far beyond the stage in which the Germanic nations lingered for a long time; for murder was never expiated in Rome by the mere payment of damages, as it was by the wergeld of the Anglo-Saxons and other races.

The limitation of the power of the officials, though a great benefit to the republic, was purchased at the price of a kind of popular despotism not less dangerous in its way. It is natural to every popular tribunal that in its decisions the question of law should be made subordinate

V.

to political considerations, because it is the same people CHAP. that is called upon to make laws and to decide according to these laws. The consequence of such a union of the character of legislator and judge in one person must be that the judge places himself above the law, decides each individual case according to his prevailing sentiment of justice, strains a law when it appears inconvenient, and to a certain extent acts on every occasion simultaneously in both capacities, applying and adapting a law at the same time. The people in a political trial are not able to isolate and examine on its own merits an act which they are called upon to try with regard to its lawfulness or guilt. They invariably keep in view the whole life of the accused, all the services he has rendered to the state, his position, the influence of his family and friends, and above all of his party; they calculate what services he may be able to render at a future time; they are moved by compassion, admiration, love, or hatred; besides, they possess in the last instance, as an attribute of their sovereignty, the right of pardon, a right which can be exercised before as well as after the sentence is pronounced. All trials in the Roman comitia were therefore attended with the defects peculiar to this stage in the development of the law, in which issues of right and expediency are still mixed up. Those who were accused, therefore, calculated not so much upon the justice and conviction of the judges as upon their compassion, prejudices, and partiality-feelings to which the mass of the people are always more accessible than to a strict sense of justice. They used to put on mourning, to let their hair and beard grow long, to show the scars and wounds received in battle for their country; they even resorted to tears and prayers, to the wailing of their children, to the intercession of influential relations and friends; they sought to draw suspicion on the motives of their accusers, to point out their personal faults and offences, to expose them to the hatred and contempt of the multitude.

Even the first typical example of a popular trial, that

BOOK
VI.

of Horatius for the murder of his sister, in the time of the third Roman king, bears the character of this mode of procedure. Horatius, although he was evidently guilty of the most atrocious crime, was pardoned by the people in consideration of his heroic deed in the single combat with the three Curiatii, and because his father had lost three children in the service of the state.' It is said of the trial of M. Manlius (384 B.C.) that no senator, no member of his gens, not even the brothers of the accused, put on mourning, a fact that had never happened before: that, on the other hand, Manlius produced four hundred citizens whom by his generosity he had delivered from bondage for debt; that he showed the spoils taken from thirty slain enemies, forty military decorations received for bravery in the field-among them two mural and eight civil crownsthat he produced, moreover, the citizens rescued by him from the hand of the enemy; that he boasted of his deeds, bared his breast covered with scars, and lastly, turning towards the Capitol, implored Jupiter to protect him, and to infuse into the Roman people at this moment the same spirit which had given him strength to save the walls of the Capitol and his whole country from the hands of the Gauls. He begged the people to keep their eyes fixed on the Capitol whilst they pronounced sentence on him to whom they owed liberty and life. We are told that the prosecutors, seeing that under these circumstances no condemnation could be expected from the people, convened the assembly in another locality, where the Capitol could not be seen, and that thereupon the condemnation of Manlius was pronounced.3

During the first three centuries of the republic the supreme criminal jurisdiction at Rome was in the hands

1 Vol. i. p. 36.

The identical language was held by P. Scipio Africanus on the occasion of his trial. See below, chap. xvi.

3 Vol. i. p. 307. The details of the trial of Manlius are evidently drawn from the imagination of the annalists, but this imagination was fed by their experience of political trials of their own time. Compare the trial of Sulpicius Galba, vol. iii. p. 388.

CHAP.

V.

limitation

tion.

of the people. However, the difficulties connected with these popular tribunals had in early times' given rise to a different course of procedure, which was adopted at first Gradual exceptionally, then by degrees more frequently, and finally of popular became a general rule. This was the appointment of a jurisdicselect body of men to form a jury charged with pronouncing a verdict in place of the people. The jurymen or judges (iudices) were sworn (iurati); their proceedings were conducted by a magistrate or by his deputy as president, and from their decree no appeal to the people was permitted. Thus they acted for and instead of the people, although they were not formally elected as popular representatives in our sense of the word. They were from the beginning chosen from among the senators, though the senate as a body never acted as a court of justice. In criminal as in civil jurisdiction, therefore, the senators in point of fact represented the people. In course of time the number of those cases increased in which such extraordinary commissions called quæstiones were appointed, and at the time of Polybius the judicial functions of the senators had risen to such importance that this sharpsighted observer of Roman political life declared them to be the chief support of the senatorial rule. The popular jurisdiction in the comitia, it is true, continued to exist, but the senatorial juries more and more took the place of the people, so that the assertion was literally true that the life and property, reputation and position, of the citizens depended upon the verdict of the senatorial judges. This organization of criminal jurisdiction lasted until the middle of the second century B.C. Up to that time, the regular course was that of trial by the people: the exception were senatorial courts of sworn judges. Then the extension of the Roman dominion beyond Italy produced a change of the greatest importance, not only for the further development of legal institutions, but for the internal history of the republic as such.

According to Livy, iv. 50, 51, viii. 18, in the years 413 and 330 B.c. 2 Polyb. vi. 17, 7. See above, p. 57.