MODE OF TRIAL IN ROMAN CAPITAL CASES
The reader should keep clearly and constantly in mind the purpose of
this chapter: to describe the mode of trial in capital cases at Rome
during the reign of Tiberius Cæsar; and thus to furnish a model of
criminal procedure which Pilate should have imitated in the trial of
Jesus at Jerusalem. In the last chapter, we saw that the proceedings of
the permanent tribunals (_quæstiones perpetuæ_) at Rome furnished models
for the trial of criminal cases in the provinces. It is now only
necessary to determine what the procedure of the permanent tribunals at
the time of Christ was, in order to understand what Pilate should have
done in the trial of Jesus. But the character of the _quæstiones
perpetuæ_, as well as the rules and regulations that governed their
proceedings, cannot well be understood without reference to the criminal
tribunals and modes of trial in criminal cases that preceded them. Roman
history discloses two distinct periods of criminal procedure before the
organization of the permanent tribunals about the beginning of the last
century of the Republic: (1) The period of the kings and (2) the period
of the early republic. Each of these will be here briefly considered.
_The Regal Period._--The earliest glimpses of Roman political life
reveal the existence of a sacred and military monarchy in which the king
is generalissimo of the army, chief pontiff of the national religion,
and supreme judge in civil and criminal matters over the lives and
property of the citizens. These various powers and attributes are
wrapped up in the _imperium_. By virtue of the _imperium_, the king
issued commands to the army and also exercised the highest judicial
functions over the lives and fortunes of his fellow-citizens. The kings
were thus military commanders and judges in one person, as the consuls
were after them. The monarch might sit alone and judge cases and impose
sentences; but the trial was usually a personal investigation undertaken
by him with the advice and aid of a chosen body of judges from the
senate or the pontifical college. According to Dionysius, Romulus
ordered that all crimes of a serious nature should be tried by the king,
but that all lighter offenses should be judged by the senate.[17] Little
confidence can be reposed in this statement, since the age and deeds of
Romulus are exceedingly legendary and mythical. But it is historically
true that in the regal period of Rome the kings were the supreme judges
in all civil and criminal matters.
_The Early Republican Period._--The abolition of the monarchy and the
establishment of the republic witnessed the distribution of the powers
of government formerly exercised by the king among a number of
magistrates and public officers. Consuls, tribunes, prætors, ædiles,
both curule and plebeian, exercised, under the republic, judicial
functions in criminal matters.
The consuls were supreme criminal judges at the beginning of the
republic, and were clothed with unlimited power in matters of life and
death. This is shown by the condemnation and execution of the sons of
Brutus and their fellow-conspirators.[18] Associated with the consuls
were, at first, two annually appointed quæstors whom they nominated. The
functions of the quæstors were as unlimited as those of their superiors,
the consuls; but their jurisdiction was confined chiefly to criminal
matters and finance.
The tribunes, sacred and inviolable in their persons as representatives
of the _plebs_ and as their protectors against patrician oppression,
exercised at first merely a negative control over the regular
magistracies of the community. But, finally, they became the chief
public prosecutors of political criminals.
The prætors, whose chief jurisdiction was in civil matters, were
potentially as fully criminal judges as the consuls, and there may have
been a time when a portion of criminal jurisdiction was actually in
their hands. In the later republic, they presided over the _quæstiones
perpetuæ_, permanent criminal tribunals.
The ædiles are found in Roman history exercising functions of criminal
jurisdiction, although their general powers were confined to the special
duties of caring for the games, the market, and the archives.
But the criminal jurisdiction of the magistrates who replaced the king
at the downfall of the monarchy was abridged and almost destroyed by the
famous _lex Valeria_ (_de provocatione_). This law was proposed 509 B.C.
by Publius Valerius, one of the first consuls of Rome, and provided that
no magistrate should have power to execute a sentence of death against a
Roman citizen who had appealed to the judgment of the people in their
public assembly. This _lex_ was the _magna charta_ of the Romans and was
justly regarded by them as the great palladium of their civil liberty.
And it was this law that inaugurated the popular jurisdiction of the
_comitia_. The result was that for more than three hundred years the
final determination of the question of life or death was in the hands of
the people themselves. From the passage of the Valerian law the function
of the magistrates was limited to the duty of convincing the people of
the guilt of an alleged criminal against whom they themselves had
already pronounced a preliminary sentence. The magistrates were,
therefore, not so much judges as prosecutors; the people were the final
judges in the case.
_Mode of Trial in the Comitia, or Public Assembly._--On a certain day,
the prosecuting magistrate, who had himself pronounced the preliminary
sentence against an accused person who had appealed to the people in
their public assembly, mounted the _rostra_, and called the people
together by the voice of a herald. He then made a proclamation that on
a certain day he would bring an accusation against a certain person upon
a given charge. At the same time, he called upon this person to come
forward and hear the charges against him. The defendant then presented
himself, listened to the accusation, and immediately furnished bond for
his appearance, or in default of bail, was thrown into prison. Upon the
day announced at the opening of the trial, the prosecuting magistrate
again mounted the _rostra_, and summoned the accused by a herald, if he
was at large, or had him brought forth if he was in prison. The
prosecutor then produced evidence, oral and documentary, against the
prisoner. The indictment had to be in writing, and was published on
three market days in the Forum. The prosecution came to an end on the
third day, and the accused then began his defense by mounting the
_rostra_ with his patron and presenting evidence in his own behalf. The
prosecutor then announced that on a certain day he would ask the people
to render judgment by their votes. In the early years of the republic,
the people voted by shouting their approval or disapproval of the
charges made; but later a tablet bearing one of the two letters V. (_uti
rogas_) or A. (_absolvo_) was used as a ballot.
The effect of popular jurisdiction in criminal processes at Rome was in
the nature of a two-edged sword that cut both ways. It was beneficial in
the limitations it imposed upon the conduct of single magistrates who
were too often capricious and despotic. But this benefit was purchased
at the price of a kind of popular despotism not less dangerous in its
way. It has always been characteristic of popular assemblies that their
decisions have been more the outcome of passion and prejudice than the
result of calm wisdom and absolute justice. The trouble at Rome was that
the people were both legislators and judges in their public assemblies;
and it nearly always happened that the lawmakers rose above and trampled
upon the very laws which they themselves had made. The natural offspring
of this state of things is either anarchy or despotism; and it was only
the marvelous vitality of the Roman Commonwealth that enabled it to
survive.
The reports of the great criminal trials before the _comitia_ reveal the
inherent weakness of a system of popular jurisdiction in criminal
matters. Personal and political considerations foreign to the merits of
the case were allowed to take the place of competent evidence; and
issues of right and expediency were too frequently mixed up. The
accused, at times, trusted not so much in the righteousness of his cause
as in the feelings of compassion and prejudice that moved the people as
popular judges. And to excite these feelings the most ludicrous and
undignified steps were sometimes taken. The defendant nearly always
appeared at the trial in mourning garb, frequently let his hair and
beard grow long, and often exhibited the scars and wounds received in
battle whilst fighting for his country. He sometimes offered prayers to
the immortal gods and wept bitterly; at other times he caused his
children and other relatives to appear at the trial, wailing, and
tearing their clothes. Not content with presenting all the pathetic
features of his own life, he left nothing undone to expose his opponents
to hatred and contempt. It thus happened that many of the great criminal
causes of Rome were mere farcical proceedings. A few instances may be
cited.
Horatius, though tried in the time of the third Roman king, was pardoned
by the people for the murder of his sister because of his heroic deed in
single combat with the three Curiatii, and because his father had lost
three children in the service of the state.
In the year 98, Manlius Aquillius, the pacificator of Sicily, was tried
for embezzlement. Marcus Antonius, his advocate, ended his argument for
the defense by tearing the tunic of Aquillius to show the breast of the
veteran warrior covered with scars. The people were moved to tears and
Aquillius was acquitted, although the evidence was very clear against
him.
In the trial of M. Manlius, 384 B.C., new tactics were employed. The
accused refused to appear in mourning. There was no weeping in his
behalf. On the other hand, Manlius relied upon his services to the state
for acquittal. He brought forward four hundred citizens who by his
generosity he had saved from bondage for debt; he exhibited the spoils
taken from thirty slain enemies, also military decorations received for
bravery in battle--among them two mural and eight civic crowns; he then
produced many citizens rescued by him from the hands of the enemy; he
then bared his breast and exhibited the scars received by him in war;
and, lastly, turning toward the Capitol, he implored Jupiter to protect
him, and to infuse, at this moment, into the Roman people, his judges,
the same spirit of courage and patriotism that had given him strength to
save the city of Rome and his whole country from the hands of the Gauls.
He begged the people to keep their eyes fixed on the Capitol while they
were pronouncing sentence against him to whom they owed life and
liberty. It is said that his prosecutors despaired of convicting him
amidst such surroundings, and adjourned the trial to another place,
where the Capitol could not be seen; and that thereupon the conviction
of Manlius was secured and his condemnation pronounced.
In the year 185 B.C., the tribune M. Nævius, at the instigation of Cato,
accused Scipio Africanus before the tribes of having been bribed to
secure a dishonorable peace. It was clearly evident that a charge of
this kind could not well be sustained by evidence; but it was believed
that a conviction could be secured by an appeal to the passion and
prejudice of the multitude. But this advantage operated as greatly in
favor of Scipio as it did in favor of his accusers. And he did not fail
to use the advantage to the fullest extent. In seeming imitation of M.
Manlius, two hundred years before, he appealed for acquittal to the
people on account of his public services. He refused to appear in
mourning, offered no evidence in his own behalf, nor did he exhibit the
usual humility of an accused Roman before his countrymen. With proud
disdain, he spurned the unworthy imputation of bribery, and pointed the
people to the magnificent achievements of his brilliant public career.
He reminded them that the day of the trial was itself the anniversary of
his victory over the greatest enemy that Rome ever had, at Zama. It was
degrading, he exclaimed, both to him and to the Roman nation, to bring
such a charge on this day against the man to whom it was due that the
Commonwealth of Rome still existed. He refused to lower himself, he
said, by listening to the insolent charges of a vulgar brawler who had
never done anything for the state. He declared that instead he would
repair at once to the temple of Jupiter and render thanks for his
victory over Hannibal to the protecting gods of his country. With these
words, he left the Forum and went to the Capitol and from there to his
house, accompanied by the great majority of the people, while the
accusing tribune and his official staff were left alone in the market
place.
The inevitable result of these cases of miscarriage of justice, in which
patriotic bravado and rhetorical claptrap took the place of legal rules,
was a desire and demand for the reform of criminal procedure. Besides,
it had ever been found troublesome and inconvenient to summon the whole
body of the Roman people to try ordinary offenses. It was only in cases
of great gravity that the ponderous machinery of the _comitia
centuriata_ could be set in motion. This difficulty was increased with
the growth of the republic, in which crimes also grew in number and
magnitude. The necessity for the reform of the criminal law resulted in
the institution of permanent tribunals (_quæstiones perpetuæ_). A series
of legal enactments accomplished this result. The earliest law that
created a permanent _quæstio_ was the _lex Calpurnia_ of 149 B.C. And it
was the proceedings in these courts, which we shall now describe, that
should have guided Pilate in the trial of Jesus.
_Mode of Trial in the Permanent Tribunals._--We shall attempt to trace
in the remaining pages of this chapter the successive steps in the trial
of criminal cases before the permanent tribunals at Rome.
_First Stage_ (_postulatio_).--A Roman criminal trial before a _quæstio
perpetua_ commenced with an application to the presiding magistrate, the
prætor or the _iudex quæstionis_, for permission to bring a criminal
charge against a certain person. The technical Latin expression for this
request to prosecute is _postulatio_. It should be here noted that
State's attorneys or public prosecutors, in a modern sense, were not
known to the Romans at this time. Private citizens took upon themselves
public prosecutions in behalf of the state. They were encouraged to do
this from motives of personal profit as well as patriotic interest in
the welfare of the community. As young men in modern times, just
admitted to the bar, often accept criminal cases by assignment from the
court in order to make a beginning in their professional careers, so
young Roman nobles in ancient times sought to make reputations for
themselves by accusing and prosecuting public delinquents. And not only
professional reputation, but financial compensation as well could be
gained in this way. The Roman laws of the time of Cicero provided that a
successful prosecutor should receive one-fourth part of the property
confiscated or the fine imposed. A Macedonian inscription offered a
reward of 200 denarii to the prosecutor who should bring to justice the
desecrators of a tomb.[19]
_Second Stage_ (_divinatio_).--It often happened that more than one
accuser desired to prosecute a single offense; but more than one
prosecutor was not permitted by Roman law unless there was more than one
crime charged. Then, in case of a concurrence of would-be accusers, a
preliminary trial was had to determine which one of these was best
fitted to bring the accusation. This initial hearing was known in Roman
law as the _divinatio_. It was indeed more than a mere hearing; it was a
regular trial in which the question of the fitness of the different
candidates for the position of _delator_ was argued before the president
and the jury. This jury was in many cases distinct from the one that
finally tried the case on the merits. The purpose of the whole
proceeding known as the _divinatio_ was to secure a prosecutor who was
at once both able and sincere; and both these qualities were generally
very strenuously urged by all those who desired to assume the rôle of
accuser. Indeed all personal qualifications involving the mental and
moral attributes of the would-be prosecutors were pointedly urged. At
the hearing, the different candidates frequently became animated and
even bitter opponents of each other. Crimination and recrimination then
followed as a natural consequence. An applicant might show that he was
thoroughly familiar with the affairs of a province, as a special fitness
in the prosecution of a public official for extortion in that province.
An opponent, on the other hand, might show that said applicant had been
associated with said official in the government of the province and had
been, and was now, on the friendliest terms with him. After the
meritorious qualifications of all the claimants had been presented, the
president and jury rendered their decision. The details of the evidence
affecting the merits of the charge were not considered at this
preliminary trial. Only such facts were considered as affected the
personal qualifications of the different candidates for the place of
accuser. When these qualifications were about equally balanced in point
of merit between two applicants, the abler speaker was generally chosen.
_Third Stage_ (_nominis delatio_).--It frequently happened that the
_postulatio_, the request to prosecute, was not followed by the
_divinatio_, the preliminary hearing on the merits of different
applicants, because there was only one would-be accuser; and his
qualifications were beyond dispute. In such a case, when a request to
bring a criminal charge against a certain person had been presented by a
citizen to the prætor, there followed, after a certain interval of time,
a private hearing before the president of the court for the purpose of
gaining fuller and more definite information concerning the charge. This
private proceeding was styled the _nominis_ or _criminis delatio_, and
took place before the president alone. Its main object was to secure a
specification of the personality of the accused as well as of the
charges brought against him. At this stage of the trial the presence of
the accused person was necessary, unless he was absent under valid
excuse. The _lex Memmia_, passed in the year 114 B.C., permitted a
delinquent to plead that he was absent from Rome on public business, as
an excuse for not appearing at the _nominis delatio_. In the year 58
B.C., the tribune L. Antistius impeached Julius Cæsar. But the
colleagues of Antistius excused Cæsar from personal attendance because
he was absent in the service of the state in Gaul. But, if the accused
appeared at the _nominis delatio_, the prosecutor interrogated him at
length concerning the facts of the crime. The purpose of this
interrogation (_interrogatio_) was to satisfy the president that there
was a prima facie case to carry before the regular tribunal in open
trial. The proceedings of the _nominis delatio_ were thus in the nature
of a modern Grand Jury investigation, instituted to determine if a
serious prosecution should be had.
_Fourth Stage_ (_inscriptio_).--If the interrogation convinced the
president that the prosecutor had a prima facie case to take before the
permanent tribunal, he framed a form of indictment called the
_inscriptio_. This indictment was signed by the chief prosecutor and
also by a number of witnesses against the accused called
_subscriptores_. The charge was now definitely fixed; and, from this
moment, it was the only offense that could be prosecuted at the trial.
The drawing up of this charge by the president was similar to the
framing of an indictment by a modern Grand Jury.
_Fifth Stage_ (_nominis receptio_).--After the indictment or inscription
had been framed, it was formally received by the president. This act
was styled the _nominis receptio_ and corresponds, in a general way,
with the presentment of an indictment by a modern Grand Jury. When the
_nominis receptio_ was complete, the case was said to be _in judicio_,
and the accused was said to be _in reatu_. The president then fixed a
day certain for the appearance of the accused and the beginning of the
trial. The time fixed was usually ten days from the _nominis receptio_.
However, a longer time was allowed if evidence had to be secured from
beyond the sea. Thirty days were allowed the accusers in the prosecution
of Scaurus. Cicero was given one hundred and ten days to secure evidence
against Verres; but he actually employed only sixty. The time granted
the prosecutor was also required by the law to be utilized by the
defendant in preparing his case.
The preliminary steps in the prosecution were now complete, and the
accused awaited the day of trial. In the meantime, he was allowed to go
at large, even when charged with a grave offense like murder.
Imprisonment to prevent escape had almost ceased at the time of which we
write. If the evidence against the accused was weak, it was felt that he
would certainly appear at the trial. If the evidence against him was
very strong, it was thought that he would seek to escape a sentence of
death in voluntary exile, a step which Romans always encouraged, as they
were averse, at all times, to putting a Roman citizen to death.
_Sixth Stage_ (_citatio_).--At the expiration of the time designated by
the president for the beginning of the trial, the proceedings before the
judges began. All the necessary parties, including the judges or jurors,
were summoned by a herald to appear. This procedure was termed the
_citatio_. Strange to say, if the accused failed to appear the case
could proceed without him. The reason for the requirement of his
presence at the _nominis delatio_, but not at the trial is not clear;
especially when viewed in the light of a modern trial in which the
defendant must be present at every important step in the proceedings.
Under Roman procedure, the presence of the defendant was not necessary,
whether he was in voluntary exile, or was obstinately absent. In 52
B.C., Milo was condemned in his absence; and we read in Plutarch that
the assassins of Cæsar were tried in their absence, 43 B.C.
Excusable absence necessitated an adjournment of the case. The chief
grounds for an adjournment were: (1) Absence from the city in the public
service; (2) that the accused was compelled to appear in another court
on the same day; (3) illness.
The absence of the accused did not prevent the prosecution of the case,
but the nonappearance of the prosecutor on the day fixed for the
beginning of the trial usually terminated the proceedings at once. The
fact that the case had to be dismissed if the accuser failed to appear
only serves to illustrate how dependent the state was on the sincerity
of the citizen who undertook the prosecution. The obligations of the
prosecutor honestly and vigorously to follow up a suit which he had set
in motion were felt to be so serious a matter by the Romans that
special laws were passed to hold him in the line of duty. The _lex
Remmia_ provided that if any citizen knowingly accused another citizen
falsely of a crime, the accuser should be prosecuted for calumny
(_calumnia_). It further provided that, in case of conviction, the
letter K should be branded on the forehead of the condemned. Such laws
were found necessary to protect the good name of Roman citizens against
bad men who desired to use the legal machinery of the state to gratify
private malevolence against their enemies. It may thus be seen that the
system which permitted public prosecutions on the motion of private
citizens was attended by both good and bad results. Cicero regarded such
a system as a positive benefit to the state.[20] Its undoubted effect
was to place a check upon corruption in public office by subjecting the
acts of public officials to the scrutiny and, if need be, to the censure
of every man in the nation. On the other hand, accusers in public
prosecutions came finally to be identified, in the public mind, with
coarse and vulgar informers whose only motive in making public
accusations was to create private gain. So thoroughly were they despised
that one of the parasites of Plautus scornfully exclaims that he would
not exchange his vocation, though low and groveling, with that of the
man who makes a legal proceeding "his net wherein to catch another man's
goods."[21]
_Seventh Stage_ (_impaneling the judges_).--But if the prosecutor
appeared in due time, the trial formally began by the impaneling of the
judges. This was usually done by the prætor or _iudex quæstionis_ who,
at the beginning of the trial, placed the names of the complete panel of
jurors, inscribed on white tablets, into an urn, and then drew out a
certain number. Both prosecutor and accused had the right to challenge a
limited number, as the names were being drawn. The number of challenges
allowed varied from time to time.
_Eighth Stage_ (_beginning of the trial_).--When the judges had been
impaneled, the regular proceedings began. The place of trial was the
Forum. The curule chair of the prætor and the benches of the judges,
constituting the tribunal, were here placed. On the ground in front of
the raised platform upon which the prætor and judges sat, were arranged
the benches of the parties, their advocates and witnesses. Like the
ancient Hebrew law, Roman law required that criminal cases should be
tried only by daylight, that is, between daybreak and one hour before
sunset. At the opening of the trial, the prosecutor, backed by the
_subscriptores_, and the accused, supported by his patrons and
advocates, appeared before the tribunal.
In a modern criminal trial the case is opened by the introduction of
testimony which is followed by regular speeches of counsel for the
people and the defendant. In those jurisdictions where opening addresses
are required before the examination of the witnesses, the purpose is to
inform the jury of the facts which it is proposed to prove. Argument and
characterization are not permitted in these opening speeches. The real
speeches in which argument and illustration are permitted come after the
evidence has been introduced. The purpose of these closing speeches is
to assist the jury in determining matters of fact from conflicting
testimony.
Under the Roman system of trial in criminal cases, the order was
reversed. The regular speeches containing argument, characterization,
and illustration, as well as a statement of the facts proposed to be
proved, were made in the very beginning. Evidence was then introduced to
show that the orators had told the truth in their speeches.
It is not practicable in this place to discuss the kinds and relevancy
of evidence under Roman criminal procedure. Suffice it to say that
slaves were always examined under torture.
The close of the evidence was followed by the judgment of the tribunal.
_Ninth Stage_ (_voting of the judges_).--The judges voted by ballot, and
a majority of votes decided the verdict. The balloting was done with
tablets containing the letters A. (_absolvo_), C. (_condemno_) and N. L.
(_non liquet_). When the votes had been cast, the tablets were then
counted by the president of the tribunal. If the result indicated a
condemnation, he pronounced the word _fecisse_; if an acquittal, the
phrase, _non fecisse videtur_; if a doubtful verdict (_non liquet_), the
words _amplius esse cognoscendum_. The result of a doubtful (_non
liquet_) verdict was a retrial of the case at some future time.
Such were the main features of the trial of a capital case at Rome at
the date of the crucifixion. Such was the model which, according to the
best authorities, Pilate was bound to follow in the trial of Jesus. Did
he imitate this model? Did he observe these rules and regulations? We
shall see.