Análisis de los residuos sólidos producidos

Criminal Justice

Some indications of the nature of Roman judicial procedure have emerged i preceding chapters, when the subject of discusssion has been the functions o

assemblies and those of certain magistrates-in particular the praetors, tribunes o the plebs, aediles, and tresviri capitales. It is not within the scope of this book to investigate the intricate web of actions comprised in Roman private law, whic sought to resolve disputes between individual citizens and indeed aliens under Roman jurisdiction: what is germane is the procedure where the individual came face to face with public authority because of an alleged offence against the community.

There is an immediate problem of definition. Modern legal systems differentiate clearly between civil and criminal law through distinctions in procedure, in the source of the prosecution, and in the nature of the judgement. Criminal cases are for the most part defined by the fact that the state prepares the charge, a particular form of procedure is used, and judgement is given in favour of the public authority rather than those who were in fact wronged. Under the Roman Republic, as Polybiu pointed out, in criminal matters we find both trials before an assembly and

investigations by a magistrate, which might be authorized by the senate or the people.' In the late Republic a procedure known as the quaestio perpetua was

developed through a series of statutes, whereby in each case a magistrate was instructed to investigate with the help of a panel of judges, offences touching the

public interest.'On the other hand, private actions were marked out by the two-part

procedure, which we have noticed when discussing the office of praetor. The plaintiff went to the praetor urbanus (or peregrinus, if a non-Roman was concerned) and asked for an action, explaining his grievance. The praetor produced a formula, which laid down the conditions to be satisfied if the action was to succeed: that is, it said `If such and such be proved, let the judgecondemn, if not, absolve'. The formula, also named a judge (at the choice of the parties, if they had someone i mind) or a panel of judges and handed over the case to be tried. This judge, or

udges-the latter sometimes a board of recuperatores, sometimes the decemviri stlitibus iudicandis or the centumviral court-heard the evidence and pleas and delivered the verdict, which was supported by the praetor's authority detailed in the formula. A bronze tablet has shown that this procedure was adapted by a provincial governor to settle a dispute between two Spanish communes over land and water rights.'

However, the boundary between civil and criminal prosecutions and the distinguishing criteria were not the same as those normally found nowadays i

English law. Theft, for example, under the Republic was treated as a private wron to be pursued by civil action. Assault, battery, and personal affront were a matter o private prosecution until Sulla's lex de iniuriis. There was in any case no public prosecutor at Rome: the gap was filled in varying ways according to the procedure used-by magistrates such as the tribune or aedile in an assembly, by wronged parties or their relatives, or, in the majority of quaestiones perpetuae and certain

trials before recuperatores, where it was permitted to bring actions on behalf of the Roman people or of other injured individuals, by private citizens for a variety o motives. These included public spirit, the promotion of a public career, and the

pursuit of a private feud.4This is a key factor in the understanding of Roma

criminal law. As for penalties, that under the lex de iniuriis seems to have been paid to the person harmed. The quaestio de repetundis was established to

compensate peopleespecially, if not invariably, non-citizens-for unjust exactions by Roman magistrates and pro-magistrates, and the srcinal penalty was the transfer o money back from the guilty man to those he had wronged. In this court for a perio after C. Gracchus' legislation not only the introduction of a prosecution but its conduct in court essentially belonged to the wronged individual himself; later, cases were entrusted to a prosecutor by the court-in practice, it seems to a Roma patron us. The monetary penalty was doubled to create a penal element, an

ultimately a further penalty to the people, in the form of exile, was paid for particularly heinous offences. Nevertheless, in the Principate actions according t

the shortened process introduced by the SC Calvisianumunder Augustus had

resemblances to a civil suit about property.'If we look at the development o

criminal law under the Republic, we can see the private pursuit of revenge or compensation in parallel with, or sometimes overlapping, the pursuit of crimes by public authority. With the passage of time the importance of public authority

increases without eclipsing the private pursuit of wrongs, and in any case those who are entrusted by public authority with the conduct of a prosecution are ofte not magistrates, nor some kind of professional official, but private citizens.

Not surprisingly, in view of what has just been said, there was never an organized corpus of Roman criminal law. In the Twelve Tables, to judge from the

surviving fragments, there could be found a series of penal actions,'which were

inadequate to deal with the complexity of possible offences, especially political ones, which the growth of the city entailed. In the last two centuries of the Republic there was a flood of legislation about criminal matters, but these dealt with only single crimes or groups of crimes. Indeed some crimes were the subject of succession of laws, for example the leges de repetundis. As Tacitus flippantly remarked (Ann. 3. 27), when public affairs were at their worst, there were most laws. These were principally concerned with crimes committed by magistrates an senators in their public capacities, but also extended to matters like murder,

violence, and forgery perpetrated by any person.

The Early Republican Background

While the surviving fragments of legal texts are in many ways the most solid literary evidence we possess from early Rome, any detailed account of the development of the criminal law of that period will largely be speculation. The account here will be a brief one, intended both to furnish the necessary background to the law of Polybius' lifetime and of the late Republic and, like the precedin survey of the tradition about the early stages of the constitution (Chap. III), to she light on the Romans' own understanding of their past. The evidence suggests tha there was at Rome a progression from the regulation of private revenge an retaliation, especially that performed by kinship groups, to the conduct of public investigation and the enforcement of publicly sanctioned procedure and penalties. The laws attributed to king Numa show a distinction being made betwee deliberate murder, which is probably declared to be the same as the killing of one's kin, and unintentional or involuntary homicide: compensation was to be made for the latter to the dead person's blood-relations by the formal sacrifice of a ram.' The Twelve Tables permitted a thief who came by night or one who defended himself with a weapon to be killed on the spot, while recommending that neighbours should be summoned to witness this act. For other forms of theft, where guilt was established before a public authority, a range of penalties was instituted, including subjection to the injured party as a bondsman (addici).1 In matters of personal injury, the Twelve Tables prescribed exact retaliation (talio) for the maiming of a limb unless an agreement for compensation was made, and a range of financial penalties for lesser injuries.9 All these provisions presuppose actions brought b

injured parties probably according to a procedure similar to those used for civil actions of that time (legis actiones), which would have been the equivalent then o the civil actions provided by the praetor in the late Republic to deal with suc offences. Regarding murder, arson, and other capital offences there survive from the Twelve Tables regulations for execution of the guilty in a manner fitting the crime, with no indication of the preceding form of trial. It has been recentl plausibly suggested that these too were prosecuted by a form of civil law procedure.10 However, the traditional view has been that these capital crimes were prosecuted by magistrates before the assembly, in the same way that offenders against the community as a whole were."

Now there can be little doubt that trials of those held to be guilty of treaso (perduellio) were held in an assembly at the time of the Twelve Tables, as later in the Republic. The question is whether this procedure was required by statute or customary law for all capital charges. The passage of Polybius concerning his ow

time, in which it is stated that `the people judges alone on a capital charge', has been shown to be inconsistent with what he says elsewhere (and indeed with the practiceof that period), unless we understand it to refer to `those who have held the

highest offices' mentioned at the end of the preceding sentence.'' More important is the provision of the Twelve Tables that `privilegia' should not be proposed to the assembly and that no proposal should be made concerning the caput of a citizen (i Roman law caput means not merely the life of a citizen but his existence as citizen), except in `the greatest' or 'very great assembly'. The last phrase was take by Cicero to mean the comitia centuriata, though srcinally it may have meant no

more than a fully attended assembly. The privilegia clause, however it was precisely formulated, was understood by Cicero to forbid condemnation b

legislation without the full procedure of a trial." Mommsen believed that this clause required that any capital trial should take place in the comitia centuriata. But it has been powerfully argued against his view that, although this clause prevented any

decision by an assembly other than the comitia centuriata on the application of a capital penalty to a citizen, it carried no implications for other forms of judgement."

Moreover, if no reference had in fact been intended to the comitia centuriata specifically, the srcinal law would have regulated assembly procedure only. It should be stressed that the clause was still regarded as valid by Cicero in the heyday of the capital judgements made by the quaestiones perpetuae.

As we have seen, in the early Republic there were magistrates called quaestores parricidii who were said to have investigated crimes (the term `parricidiurn' seems

srcinally to have meant the murder of a member of one's kinship group and was

then extended to the murder of any free man).j5Livy portrays quaestors actuall

prosecuting before the assembly, but in one case the tradition is a variant, in the other no trial actually occurred, and on neither occasion was the charge murder. It is doubtful whether these accounts have any value, nor would they, even if true, warrant the conclusion that this was the only method of trialavailable to these

magistrates.'I They were perhaps regularly appointed `investigators', as their name

suggests, who acted as criminal judges, rather than prosecutors.

There was also a pair of magistrates appointed to indict men with treaso (perduellio). The evidence about these is equally tenuous and enigmatic. In Livy' story of the unification of Rome and Alba Longa under king Tullus Hostilius, i which the duel between the Horatii and the Curiatii is critical, one outcome of the Roman victory is the murder of his sister by Publius Horatius and his subsequen indictment, not for murder, but for perduellio. The king creates `according to the law' duumviri. In the `lex horrendi carminis' that follows they are instructed to indict, or perhaps condemn (the Latin term is iudico) Horatius; if he uses provocatio from the duumviri, there is to be a contest by, or with, provocatio. If the

duumviri prevail, his head is to be covered, he is to be hanged from an unlucky tree and beaten either inside or outside the pomerium. In the story Horatius actuall pleads to the people through provocatio and obtains acquittal." The only certai

historical example of a trial by duumviri is an oddity, being the accusation of C. Rabirius engineered by Caesar and Labienus in 63 on the charge of havin participated in the lynching of the tribune Saturninus in ioo. On this occasion the le

horrendi carminis was revived by plebiscite, except that no opportunity seems to have been given for the accused to defend himself, and Rabirius was only saved b provocatio resulting in some sort of obstruction to the process, perhaps by a

friendly tribune.18It seems likely that in the early Republic accusations o

perduellio were entrusted to duumviri, who were probably not a standing magistracy but chosen for the occasion. However, when their function was take over by the tribunes of the plebs, only a (possibly garbled) version of the lex horrendi carminis survived as testimony to the early procedure. In this the duumviri were permitted to condemn a defendant out of hand, but, if he used provocatio, they had to justify their decision before the people.

From the third century century BC onwards-to judge from thestories in Livy an the text of the Oscan law on the Bantine tablet-if not earlier, crimes against the people, both capital and non-capital, were prosecuted in assemblies by tribunes,

aediles, and quaestors (capital charges being for the most part reserved for tribunes).'9 The procedure involved was elaborate and initiated by a magistrate. He formally announced to the defendant (diem dicere) a date for a first hearing, after obtaining auspices for the assembly from the praetor.20 Apart from ensuring the religious rectitude of the proceedings, this would have enabled the praetor to ensure that the trial did not clash with anything else of importance in the forum. The trial began with a contio devoted to anquisitio (investigation) in which speeches for the prosecution and defence were made; two similar contiones followed (eac separated from the preceding one by at least one clear day), in which further speeches were made and evidence was given; then, after the interval of a trinundinum (at least three market-days), a vote was held in a formal assembly. Any fault or interruption in this formal assembly through inauspicious omens vitiated the whole process and entailed that it could only be revived from the beginning. A description of similar procedure in the Oscan law, perhaps taken by Bantia fro the constitution of the Latin colony of Venusia, refers to five parts of the action, that is four contiones before the final assembly, which was held after a thirty-day interval. This is evidently a variant of the procedure used at Rome. Whether th procedure at Rome had been so elaborate always, and in every type of assembl

trial, we do not know."

the Horatius story, and that in principle the processes were identical: they were two-part trials, linked by provocatio, in the first part of which (the three contiones) the magistrate arrived at a verdict, while inthe second part this judgement was referred to the people.22 However, later scholars pointed out correctly that there is no trace of this sort of division, nor any evidence for the use of provocatio, i assembly-trials as we find them in the middle and late Republic.23 The explanatio offered by some scholars for this,24 that provocatio was in principle illegal against a judicial verdict, conflicts with a statement by Cicero about the Twelve Tables- that they allowed provocatio from every judgement and penalty-and also with the proposals in the late Republic to allow provocatio against the verdicts o

quaestiones perpetuae.25 Provocatio, together with tribunician obstruction, seems to have been in fact illegal in such courts, not through some unwritten fundamental principle, but through specific clauses in the laws that established them.-'6 On the

other hand, the absence of provocatio in the course of assembly-trials may be explained by practical considerations, inasmuch as the procedure itself guaranteed a popular verdict and it would have been pointless to contest this by provocatio, nor would tribunes uninvolved in the prosecution have supported an appeal against the verdict."

By the beginning of the second century trials before the assembly were the community's sanction against cowardice, imcompetence, and corrupt behaviour by its former magistrates, as Polybius pointed out. There were also a number of less grave offences, in some cases against specific laws, prosecuted by the aediles.28 A number of crimes against the individual, such as theft and bodily injury, would still be prosecuted by civil procedure, as at the time of the Twelve Tables, and the

penalty was paid to the injured party.29 How were capital crimes, such as murder,

arson, and witchcraft, treated?

The traditional view has been that these were prosecuted in an assembly, since other forms of procedure would have been violations of the provocatio laws. This view has continued to be held by scholars who believed that provocatio was not a integral part of an assembly trial. However, Kunkel developed a series o arguments of varying merit tosuggest that matters like murder were usually handled by a magistrate acting with a consilium of advisers as a jury.-'O First, it is clear

that trial by magistrate and jury in the quaestio perpetua of the late Republic, where provocatio was forbidden, was not regarded as a fundamental breach of the Roma

constitution. Secondly, during a period preceding and concurrent with the quaestio perpetua we find a number of other quaestiones-special tribunals under magistrates

set up by law or senatus consultum to deal with mass lawbreaking or some other unusual crime (see below). It seems that provocatio did not take place, but no one objected to the tribunals on that ground. Thirdly, there is evidence that cases o

murder and carrying an offensive weapon were denounced to the tresviri capitales,

who we know had some sort of judicial powers." Fourthly, given the cumbersome

nature of trial before the assembly, only a few cases of this sort could be handled each year, which would mean that there were inadequate sanctions against some o the most serious crimes against the individual.

Kunkel's view that trials by a magistrate with the aid of a panel of assessors (consiliumn), which he had selected himself, were transformed by the mere presence of the consilium into a procedure not subject to provocatio (on the ground

that provocatio was only possible against coercitio, the unmediated exercise of a magistrate's power against a person) is in conflict with the evidence (see above, with n. 25) and has been shown to misrepresent the relationship between the magistrate and such a panel. Kunkel's consilium has the authority of a judge or jury, but when a magistrate delivered a verdict, `having consulted his consilium', the