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Chapter 8


Then equal laws were planted in the state, To shield alike the humble and the great.--Cooke.


1. In the early stages of society, little difficulty is felt in providing for the administration of justice, because the subjects of controversy are plain and simple, such as any man of common sense may determine; but as civilization advances, the relations between men become more complicated, property assumes innumerable forms, and the determination of questions resulting from these changes, becomes a matter of no ordinary difficulty. In the first ages of the republic, the consuls were the judges in civil and criminal matters, as the kings had previously been;[1] but as the state increased, a new class of magistrates, called prętors, was appointed to preside in the courts of law. Until the age of the decemvirs, there was no written code to regulate their decisions; and even after the laws of the twelve tables had been established, there was no perfect system of law, for the enactments in that code were brief, and only asserted a few leading principles. 2. The Roman judges did not, however, decide altogether according to their own caprice; they were bound to regard the principles that had been established by the decisions of former judges; and consequently, a system of law was formed similar to the common law of England, founded on precedent and analogy. In the later ages of the empire, the number of law-books and records became so enormous, that it was no longer possible to determine the law with accuracy, and the contradictory decisions made at different periods, greatly increased the uncertainty. To remedy this evil, the emperor Justinian caused the entire to be digested into a uniform system, and his code still forms the basis of the civil law in Europe.

3. The trials in courts refer either to the affairs of the state, or to the persons or properties of individuals, and are called state, criminal, or civil trials. The two former are the most important in regard to history.

4. The division of the Roman people into two nations, made the classification of state offences very difficult. In general, the council of the patricians judged any plebeian who was accused of conspiring against their order; and the plebeians on the other hand, brought a patrician accused of having violated their privileges before their own tribunal. 5. Disobedience to the commands of the chief magistrate was punished by fine and imprisonment, and from his sentence there was no appeal; but if the consul wished to punish any person by stripes or death, the condemned man had the right of appealing to the general assembly of his peers.[2] 6. To prevent usurpation, it was established that every person who exercised an authority not conferred on him by the people, should be devoted as a victim to the gods.[3] This, was at once a sentence of outlawry and excommunication; the Criminal might be slain by any person-with impunity, and all connection with him was shunned as pollution. 7. No magistrate could legally be brought to trial during the continuance of his office, but when his time was expired, he could be accused before the general assembly of the people, if he had transgressed the legal limits of his authority. The punishment in this case was banishment; the form of the sentence declared that the criminal "should be deprived of fire and water;" that is, the citizens, were prohibited from supplying him with the ordinary necessaries of life.

8. In all criminal trials, and in all cases where damages were sought to be recovered for wrongs or injuries, the prętor impanelled a jury, but the number of which it was to consist seems to have been left to his discretion. The jurors were called ju'dices, and the opinion of the majority decided the verdict. Where the votes were equal, the traverser or defendant escaped; and when half the jury assessed damages at one amount, and half at another, the defendant paid only the lesser sum. In disputes about property, the prętor seldom called for the assistance of a jury.

9. The general form of all trials was the same; the prosecutor or plaintiff made his complaint, and the defendant was compelled either to find sufficient bail, or to go into prison until the day of trial. On the appointed day, the plaintiff, or his advocate, stated his case, and proceeded to establish it by evidence; the defendant replied; and the jury then gave their verdict by ballot.

10. In cases tried before the general assembly of the people, it was allowed to make use of artifices in order to conciliate the popular favour. The accused and his friends put on mourning robes to excite pity; they went into the most public places and took every opportunity of showing their respect for popular power. When Cicero was accused by Clo'dius for having illegally put to death the associates of Cataline, the entire senatorian rank changed their robes to show the deep interest they felt in his fate. At these great trials, the noblest specimens of forensic eloquence were displayed by the advocates of the accuser and the accused; but the decisions were usually more in accordance with the spirit of party than strict justice.

11. The accused, however, might escape, if he could prevail on any of the tribunes to interpose in his behalf, or the accuser to relinquish his charge; if unfavourable omens appeared during the trial, it was usually adjourned, or sometimes the accusation withdrawn; and up to the very moment of the commencement of the trial, the criminal had the option of escaping a heavier penalty by going into voluntary exile.

12. The punishments to which state criminals were sentenced, were usually, in capital cases, precipitation from the Tarpeian rock, beheading, or strangulation in prison; when life was spared, the penalties were either exile or fine. Under the emperors severer punishments were introduced, such as exposure to wild beasts, or burning alive; and torture, which, under the republic, could not be inflicted on free citizens, was exercised unsparingly.

13. The punishment of parricides was curious; the criminal having been beaten with rods, was sown up in a sack together with a serpent, an ape and a cock, and thrown either into the sea or a river, as if even the inanimate carcase of such a wretch would pollute the earth.

14. Masters had an absolute, authority over their slaves, extending to life or limb; and in the earlier ages patrons had similar power over their clients. The condition of slaves in Rome was most miserable, especially in the later ages; they were subject to the most excruciating tortures, and when capitally punished, were generally crucified. Except in this single particular, the Roman criminal code, was very lenient and sparing of human life. This was chiefly owing to the exertions of the plebeians, for the patricians always patronized a more sanguinary policy; and could do so the more easily, as the aristocracy retained their monopoly of the administration of justice much longer than that of civil government.

15. The Roman system of finance was at first very simple, the public revenue being derived from a land-tax on Quiritary property,[4] and the tithes of the public lands; but after the conquest of Macedon, the revenues from other sources were so abundant, that tribute was no longer demanded from Roman citizens. These sources were:--

1. The tribute of the allies, which was a property tax, differing in different places according to the terms of their league.

2. The tribute of the provinces, which was both a property and poll-tax.

3. Revenue of the national domains leased out by the censors.

4. Revenue from the mines, especially from the Spanish silver-mines.

5. Duties on imports and exports. And,

6. A duty on enfranchised slaves.

The receipts were all paid into the national treasury, and the senate had the uncontrolled direction of the general expenditure, as well as the regulation of the amount of imposts. The officers employed to manage the affairs of the revenue, were the quęstors, chosen annually, and under them the scribes, who held their situations for life. Those who farmed the public revenue were called-publicans, and were generally persons of equestrian dignity; but in the remote provinces they frequently sublet to other collectors, who were guilty of great extortion. The latter are the publicans mentioned in the New Testament.


Questions for Examination.

1. When did the Romans first appoint judges?

2. How were the decisions of the prętors regulated?

3. How are trials divided?

4. In what manner were offences against the classes of patricians and plebeians tried?

5. How was disobedience to the chief magistrate punished?

6. What was the penalty for usurpation?

7. How was mal-administration punished?

8. When did the prętors impannel a jury?

9. What was the form of a trial?

10. Were there any other forms used, in trials before the people?

11. Had the criminal any chances of escape?

12. What were the usual punishments?

13. How was parricide punished?

14. In what respect alone was the criminal law of the Romans severe?

15. What were the sources of the Roman revenue?

16. To whom was the management of the finances entrusted?



[1] Niebuhr, however, is of opinion, that judicial officers were elected by the "comitia curiata," from the earliest ages.

[2] This privilege was conceded to the plebeians by the Valerian law, but must have been possessed by the patricians from the earliest times; for Horatius, when condemned for the murder of his sister, in the reign of Tullus Hostilius, escaped by appealing to the comitia curiata. The Valerian law had no sanction, that is, no penalty was annexed to its transgression; and during the two centuries of patrician usurpation and tyranny, was frequently and flagrantly violated. On this account the law, though never repealed, was frequently re-enacted.

[3] The formula "to devote his head to the gods," used to express the sentence of capital punishment, was derived from the human sacrifices anciently used in Rome; probably, because criminals were usually selected for these sanguinary offerings.

[4] The lands absolutely assigned to the plebeians free from rent, were the most remarkable species of Quiritary property. It was so called from the Quirites, who formed a constituent part of the Roman people, and whose name was subsequently given to the entire.

Oliver Goldsmith