T
HE ROMAN COURTS divided cases into the “private” and “public” in something like the way we divide “civil” and “criminal.” One of the important
differences is that in Roman law some of our main criminal offenses (most thefts and assaults, seemingly including murder)
were in the private category for most of our period. The public offenses also attracted much less attention from the Roman
jurists than private-law matters, and surviving speeches from actual prosecutions have surprisingly little to say about legal
issues. The explanation for all these facts may be that the Romans had a very political understanding of the role of the public
courts. This is not to say that they were “political” in a corrupt sense (though that might be true as well). Rather, they
existed only to treat matters that were inherently political in that they affected the community as a whole (say, electoral
bribery or abuse of office). An offense to an individual victim with no broader consequences, no matter how heinous, just
was not the right
kind of offense for these courts. Mere law and order were not sufficient grounds. And to the extent that the community was defending
itself in these courts, the law was not acting as a fair or impartial third party
settling disputes. Hence, lawyers were neither interested or interesting in these contexts. In the rest of this chapter I
will speak of “crime(s)” for convenience, but keep in mind that I really mean “public-law offense,” and that this is something
slightly different.
Before discussing particular procedures and offenses, I will point out a few general principles of criminal liability. Most
of these, as we saw in the last chapter, applied to delict as well. These rules were formalized later than the individual
offenses (if at all), but they seem to have been generally observed even earlier. Committing a crime always involved an overt
act. You could not be convicted for omission or for mere bad intentions. Intention, however, was important. Accidental and
reckless action was not sufficient for a crime to have been committed; you had to have actual intent. So drunken brawlers
were not to be treated as murderers, even if someone died in a fight. Finally, as long as someone committed the actual crime,
other people could also be convicted if they were loosely attached. The standard phrase is “anyone by whose plan or effort”
the crime was committed.
There were no separate criminal courts until quite late in Roman history; the first was created in 149
BC, and this only tried a single offense. Before this, major public offenses (e.g., treason, misuse of state funds) were tried
before assemblies of
the whole (voting) population – the same groups that passed laws and elected magistrates. Charges were brought by various
magistrates, and sentences typically included fines and/or exile. On a few occasions in the second century
BC, this elaborate procedure was replaced by an investigatory commission led by a major magistrate and authorized in some cases
by vote of the people and in some cases by the Senate. This was done only on an individualized, ad hoc basis, and the legality
of the whole procedure was not clear.
Beginning in the middle of the second century
BC, trials before the assemblies began to be replaced more systematically by a procedure (the so-called
quaestio perpetua or “standing inquiry”) that looked much more like the kind of trial we are used to, though it was still close in some respects
to a private process. A separate court was established to try each offense, so there were slight procedural differences among
them, though the details are not important here. There was no district attorney, crown prosecutor, or other state agent. Prosecutions
had to be launched by private citizens, though the prosecutor need not have been a victim of, or even connected to, the crime.
The would-be prosecutor went to the praetor to ask permission to proceed, though we do not know how often this was denied.
If more than one person wished to prosecute, then a preliminary hearing was held in which the jury had to decide which party
would do a better job of arguing the main case. The jurors were selected from a panel of rich and merely well-to-do citizens
(the precise rules of eligibility were the subject of much political dispute) by a process of alternating rejections
by the two sides. The end result was a panel of roughly twenty-five to seventy-five jurors (and, ideally, an odd number).
The hearing of a case proceeded in much the same way as a private case: long speeches followed by witness testimony and other
evidence. Both sides were typically represented by advocates. There was little intervention by the government in terms of
admissible evidence, subpoenas (in most cases), discovery, and so forth. And not only was there no detailed charge to the
jury (the elaborate legal instructions given by a judge today), but there was not even a formula of the sort given in Roman
private cases. At the end of the trial, the jurors did not deliberate but simply voted, and a majority vote won. There was
no appeal from their verdict.
The system of the standing inquiries came to try seven offenses: electoral bribery, provincial extortion, homicide, riot,
forgery, theft of public property, and treason. Full definitions and punishments will be listed later. Two general points
about penalties need to be made first. Several of the offenses carried a “capital” penalty. In theory, this might mean execution
(as it does today), but in practice that punishment seems rarely or never to have been carried out on Roman citizens. Rather,
they were allowed to slip into exile abroad (and possibly have their property confiscated). This way out is part of a broader
pattern. None of the penalties for Roman citizens involved corporal
punishment. Instead, those convicted of these offenses (as well as in some lesser, civil matters) suffered a variety of civic
disabilities (e.g., a ban on office holding) called by the umbrella term
infamia. There are a very few known exceptions, but these do not involve ordinary criminal offenses and even then were controversial
among contemporaries.
Ambitus. This is electoral bribery. Buying votes directly was illegal from early on, but over time other forms of electoral malpractice
were also included: giving out tickets to public games (or putting them on in the first place) or seats at feasts, making
deals with other candidates to share votes, gathering an excessive entourage. The most immediate penalty was being disqualified
from the election (only winners seem to have been prosecuted), but there was a further bar from seeking office for another
decade. This was eventually strengthened to exile (perhaps with a limited term). At some point, the candidate’s principal
agents became specifically liable as well.
Repetundae. This offense is sometimes described as “extortion” from provincial subjects. (The Latin term means “recovery” and is properly
the name of the court rather than of the crime itself.) The original scope of the offense seems to have been for a provincial
governor to receive more than a specified amount of money from one of his subjects, whether as gift, bribe, “protection” money,
or even otherwise legitimate payment. Over time, other forms of official misbehavior were included, such as taking bribes
of any size, excessive requisitions from subjects (even for overtly public purposes), and (eventually) leaving one’s own province
without authorization
(presumably on a military adventure). This offense had the most procedural peculiarities, most notably a provision to give
Roman advocates to foreign plaintiffs, and some opportunity for the prosecution to subpoena witnesses. The penalty for the
core offense was to pay back twice the amount taken, so there had to be a second hearing after a guilty verdict to establish
the amount of damages.
Homicide. In early times, homicide seems to have been a criminal offense only under a few circumstances: using of poison, killing
a near relative, and (later) having some connection to organized crime. The recognition of murder in general as an offense
seems not to have happened until perhaps 81 BC. Even after this time, there seems to have been an emphasis on prosecutions for the kinds of killings just mentioned and
for a fourth special type, so-called judicial murder, that is, the abuse of the criminal process to bring about someone’s
death. The punishment was “capital” in the sense described earlier.
Vis. The Latin name for this offense means simply “force” or “violence,” but the scope of the crime seems to have been much narrower.
Prosecutions for
vis did not arise from just any use of violence (say, a tavern brawl or a mugging), but only from those that were “against the
state.” That is, the violence had to have a clear political aim or be on such a scale (a riot more than an assault) as to
take on political implications. Over time, some individual acts seem to have been specified by the statute or by explanatory
decrees of the Senate (e.g., seizing public places, stirring up the troops), but the basic definition remained abstract and
vague. This meant it was subject to
changes in public opinion, and in practice more and more acts were deemed “against the state” over time. The definition also
lent itself to a utility defense. That is, a defendant might more or less admit the violence but claim that it was for the
public good. The penalty was capital.
Falsum. The charge covered counterfeiting of coins and forgery of wills. The former offense was more narrowly defined than one might
expect today. Nothing prevented persons from producing coinage in metals not used for the official currency. (Since money
drew much of its value from its precious-metal content, this would not be a silly thing to do.) The penalty was capital.
Peculatus. While ordinary thefts were delictal matters, theft of state-owned property fell under this criminal category. A person who
had legitimate possession of that property (at least initially) could not be charged with this offense, though he might be
liable on other charges. The penalty was a combination of exile and restitution (the latter requiring a separate hearing to
calculate the amount stolen).
Maiestas. Literally “majesty” or “greater-ness,” the full name of this offense was “diminishing the majesty of the Roman people.”
Like the laws on
vis, those on
maiestas specified a (growing) number of particular acts, but both prosecution and defense could always fall back on the more abstract
definition. It was a standard rhetorical exercise to argue how one’s supposed acts of
maiestas had actually increased the majesty of the Roman people. While the term is sometimes translated “treason,” that is misleading.
The main overlap is
in cases where a magistrate is prosecuted for gross malpractice in military command and where there is perhaps an incidental
suggestion that he may have been bribed by the enemy. Other acts that might be prosecuted as
maiestas included interfering with a magistrate in the performance of his duties, waging war without proper authorization, and wasting
state resources. The penalty was capital.
The most important change under the Empire was probably the collapse of most criminal jurisdiction into the
cognitio procedure that was also coming into use for civil cases (
Chapter 11). Just as in private law, this made the state much more activist than it had been. But the substantive effects of the change
were much greater than they had been in private law. Since
cognitio procedure was formally beyond the statutes that established the standing inquiries, it was not bound either by their definitions
or by their penalties. While the old rules were not systematically thrown out, a substantially new system evolved. I will
say more about the offenses later, but first we may note major changes in the range of penalties. First, while exile had been
a way to escape execution, it now became a penalty in its own right. Depending on the specific offense, the exile might have
more or less choice about where to go and might or might not have property confiscated. Second, physical punishments such
as condemnation to forced labor and execution were
established. Third, a two-tiered set of penalties was set up. Ordinary citizens (
humiliores) were largely subject to the new corporal penalties, including aggravated forms of execution such as crucifixion. Elites
(
honestiores) were typically subject to fines or to the various forms of exile or (in extreme cases) to simple execution. At the very
top of the social scale, the Senate began to sit as a court to try its own members whenever they were accused of criminal
offenses.
In the early years of the Empire, two new statutory criminal offenses were added to the court system. One was adultery, defined
as sex between a married woman and a man other than her husband. Both parties were equally guilty, but note that a married
man could have sex with, say, a slave or prostitute without committing any legal offense at all. The penalty was a fine along
with restrictions on remarriage, though much of the purpose of the law seems to have been to discourage injured parties from
taking the law into their own hands. There was also a new crime of interfering with the public grain supply, punishable by
a schedule of fines.
More important than these early statutory changes was a series of shifts and expansions within the
cognitio procedure. As part of the freedom created by the new procedure, new offenses were created and particular acts were brought
under the scope of previous offenses. So, for instance, arson and castration came to be prosecuted under what was nominally
still the homicide statute. In some cases, this created considerable overlap. For instance, possession of a weapon with criminal
intent could be tried under both the
vis and homicide statutes.
Some entirely new offenses were created, such as kidnapping and rustling. The limitation of criminal
vis to acts “against the state” was largely dropped (so this, for instance, was the heading under which rape would be prosecuted).
And several of the delicts (e.g., theft, fraud,
iniuria) were eventually criminalized. Finally, the scope of
maiestas law was radically transformed. While its original scope was probably never redefined in theory, in practice it came quickly
to focus on the person of the emperor. Depending on the political circumstances, almost any action that showed (or could be
construed to show) disrespect for the emperor might bring about prosecution. (In this imperial sense, the translation of “treason”
makes more sense.)