Prefect of the city.

Prefect of police.

Cæsar, the dictator, constituted himself sole judge of Ligarius, it may be said that the old Roman constitution was overthrown.

By the side of the republican courts, Augustus established the jurisdiction of the senate for a large class of crimes, such as treason, and offences committed by magistrates and public functionaries. During the first century of the empire, we find examples of some crimes tried by the quæstiones perpetuæ; but these became more and more rare, and criminal jurisdiction was gradually diverted to imperial magistrates.

The prefect of the city usurped many of the duties which had formerly belonged to the prætor and ediles. He punished all ordinary crimes committed in the city of Rome, and within a circuit of a hundred miles around it, having power to banish persons from Italy, and transport them to an island named by the emperor.

The præfectus vigilum, who commanded the soldiers appointed to watch the city, took cognisance of incendiaries, thieves, vagrants, and the like; but he could only inflict light punishments.1

1 Maynz, § 53.

CHAPTER II.

PROCEDURE IN CRIMINAL TRIALS.

ANY Roman citizen might accuse another before the prætor, Authority to prosecute on being authorised to do so by that magistrate. The de- postulamand for such authority was called postulatio, and was pub- tio. lished in the forum, to allow all concerned an opportunity of objecting. At the same time the accuser gave his oath of calumny that his proceedings were adopted in good faith, and with a view to the public interest.

After a reasonable delay, if the title of the accuser was Accusation sustained, he made a formal declaration of the name of the inscriptio. person impeached, and the crime laid to his charge. A document was then drawn up, called inscriptio, stating the name of the accused and the precise nature of the charge and this was signed by the accuser and those who intended to support him in conducting the prosecution.

The accused was summoned to appear before the prætor and hear the charge preferred against him. If he appeared and denied his guilt, as usually happened, the prætor appointed a day for proceeding with the trial, which was generally fixed after the lapse of ten days.

On the day appointed the parties appeared; and the prætor, Trial. or in his absence the presiding judge, called judex quæstionis, drew out of the urn the proper number of names to constitute the jury. A certain number of the jury might be challenged, both by the accuser and the accused. The jury having been sworn, the prosecutor, or his counsel, opened the case; the accused defended himself in person or by his counsel; and then the evidence was taken.

Verdict and judgment.

When the proof and pleadings were concluded, the jury were called upon by the judge to give their verdict, which was done at first openly, and afterwards by ballot. The judge distributed among the jury small tablets, upon which they wrote secretly either an A. (absolvo), or a C. (condemno), or N. L. (non liquet). After examining these tablets, the judge pronounced sentence, according to the opinion of the majority, in a certain form. If the verdict was guilty, the prætor said, videtur fecisse; if it was not guilty, non videtur fecisse; and if a majority were unable to decide, he said amplius, and the cause was deferred for a new hearing on a future day. When the criminal was condemned, he was punished by law according to the nature of his offence.

Such were the forms of procedure followed in trials before the quæstiones perpetuæ. The forms observed before the comitia were very nearly the same, excepting the differences arising from the nature of the tribunal and the mode of giving the vote.1

CHAPTER III.

OF CRIMES.

crime.

In a general sense, crimes are such transgressions of law as Nature of are punishable by courts of justice. The perpetrator of a crime is liable to punishment on grounds of public policy, besides being bound to repair, where that is possible, the injury sustained by the individual. For minor offences the term delict is sometimes used.

By the Roman law, crimes were divided into private and Crimes public. Private crimes could be prosecuted only by the party public. private and injured, and were generally punished by pecuniary fines applied to his use. Some offences which we are accustomed to regard as public crimes, such as theft and robbery, were treated as civil wrongs in the same manner as trespass, slander, and various other injuries which have already been noticed under the head of actions arising from wrongs. All these were usually requited by payments in money; and the same peculiarity is observable in the early laws of the Germans.

and extra

Ordinary public crimes were those expressly declared to Ordinary be such by some law or ordinance, and which, on account of ordinary. their atrocious or hurtful character, might be prosecuted by any member of the community. Some public crimes were called extraordinary, when the nature of the punishment was not defined by any specific law, but was left to the discretion of the judge. Of this description were violating a tomb, removing landmarks, forcing prisons, sheltering and abetting thieves, stellionate, and a great variety of innominate offences.1

1 D. 47. t. 11-21.

criminal system.

Character of The criminal system of the Romans never attained the same degree of maturity and perfection as their law of civil rights. Their law respecting crimes was framed with special reference to their national institutions, their religion, the functions of their magistrates, and the manners and habits of the people, so that many regulations which were natural and convenient in their situation are wholly unsuitable to modern states. Besides, under the empire, the violence and jealousy of every bad prince, and the short-sighted policy of every weak one, led to numerous inconsistent ordinances often dictated by mere caprice, which threw this branch of Roman jurisprudence into great confusion.

In classifying crimes, a distinction has generally been drawn between offences against the sovereign and the state, and offences against individuals.

Treason.

I. OFFENCES AGAINST THE STATE.

Treason-Crimen læsæ majestatis.

In the early times of the republic, every act which was injurious to the safety of the state was called perduellio, and was punished by death. Numerous offences against the state were comprehended under that term, such as conspiracy against the government, aiming at kingly power, assisting the enemies of Rome, misconduct in the command of the armies. Marcus Manlius, who saved his country during the invasion of the Gauls, was convicted of an intention to seize upon the government, and being condemned was, as Varro relates, hurled from the Tarpeian Rock, or, as Cornelius Nepos affirms, scourged to death; his property was also confiscated, and his house razed to the ground.1 Cn. Fulvius was accused of losing a Roman army; but he anticipated his condemnation by voluntary exile. Coriolanus was charged with aspiring at tyranny, because he declared in the senate that the office of tribune of the people should be abolished.

1 Aulus Gellius, lib. xvii. c. 21.