BOOK IV. Jury sworn. The trial. Defence of The jury being complete, they were sworn upon the laws to give an honest and true verdict; and all signed their names, lest in so large a number some one might be corruptly substituted for sinister purposes'. The trial now began, which consisted of the prima and secunda actio, unless the law on which the party was prosecuted declared there should be no comperendinatio, or adjournment. The prosecutor commenced. He stated his case, enumerating and commenting upon the facts and circumstances which it involved, and then proceeded to call his witnesses, and produce such documents (tabula) as proved the case2. The competency of the witnesses was carefully ascertained, and they were closely examined as to any bias they might have on either side: nor could near relations be compelled to give evidence against the accused. The documentary evidence consisted of books of account, letters, notes of hand (syngrapha), &c. The evidence for the prosecution being closed, the Reus. the advocates of the reus began the defence, which they did by denying or extenuating, or altogether justifying the ground of accusation; and by impeaching the evidence of the prosecutor: they also called witnesses (laudatores) to shew the character of the accused was above reproach. Having finished their speeches, and exhausted their evidence, if there were no adjournment, the Prætor delivered three tabella, tablets, marked respectively A. C. NL. to each of the judices, who were thereupon missi in consilium, sent to consider their verdict. Verdict of In slight offences the Judices stood up and of the jury. gave their verdict orally; but in the graviora delicta they deposited that tablet in the urn which signified the verdict of each judex, and accordingly 1 Id. 2 Hein. Ant. IV. 18. 24. " XI. was A. absolvo, or C. condemno, or NL. non liquet, CHAP. is not proved, or the "not proven" of the Scotch law; and which at Rome was no verdict at all. The tablets having been sorted and counted, the Prætor pronounced the verdict, which was either non videtur fecisse, an acquittal; or videtur fecisse, a conviction; or amplius cognoscendum. If this last verdict were given, a day was fixed by the Prætor, when the whole case was reheard; and this would be repeated till the judices came to a verdict of guilty or not guilty'. As to the different publica judicia, the reader may consult the Institutes, Book IV, Title 18, and the Digest, Book XLVIII. The judicia populi, or extraordinaria judicia, Judicia were those questions which were decided by the populi. populus, either because the law had prescribed no What. punishment; or on account of the peculiarity of the case, as that of Publius Horatius for the murder of his sister; or where the question involved the caput of a citizen, the 12 Tables directed that it should be tried in the Comitia: de capite civis nisi per maximum comitium, ne ferunto2. But the crimen læsæ majestatis, i.e. whatever was prejudicial to the security and dignity of the Roman people3, and also the crimen peculatus, were judicia populi. These judicia might be instituted in the comitia centuriata, and tributa1. None but a private person could be arraigned, and therefore if a Consul, Prætor, or any other in authority were to be accused, it was necessary to wait till his year of office had expired. The accusatio was commenced by the Diei Diei dictio. dictio. A magistrate ascended the rostrum and publicly declared that on a certain day he would accuse the person named of the crime in question, ordering the reus to appear on the said day, who Hein. IV. 18. 31. 32. 33. 3 D. XLVIII. 4. I. I. 2 Tab. IX. fr. 2. 4 Hein. Ant. IV. 18. 35. 36. 5 Id. 37. BOOK must give security for his appearance, or in the IV. mean time was committed to prison. Accusa On the day fixed the magistrate again astion, form cended the rostrum, when the reus was summoned of. by the Praco; and if he appeared, the accusation was duly made in this form: Quando igitur hæc, et illa, quæ dixi, fecisti, ob eas res ego mulctam tibi hanc dico, vel pecuniam hanc, sive perduellionem tibi judico1. This was done three times, intermissis diebus, with an interval of some days. Promulgatio. After the third time the accusing magistrate wrote and published the crime, and proposed punishment. This promulgatio was fixed up in the forum per tres nundinas, for the information of the people, as in the case of passing a Lex2. On the tertiæ nundina the prosecutor ascended the rostrum, and stated his accusation for the Defence of fourth time, when the reus made his defence; after which another adjournment took place, a day being fixed for taking the votes in the comitia3: and in the interval, it would seem, that everything was resorted to, to secure the acquittal of the accused: bribery of the Augurs; tampering with the prosecutor; and the most abject humiliation before the populus to excite their commiseration1. Voting in The day appointed for voting in the comitia the Comitia. having arrived, the magistrate made the rogatio to the Populus, or the Plebs, as the case might be; each voter was furnished with two tablets marked UR. and A.; they passed over the pontes into the septa, delivering in transitu which vote they chose to the custodes. The votes were then sorted and counted, and the accused was convicted or acquitted according as UR. or A. prevailed. If the reader wish to investigate this subject more in detail, he may consult Heineccius, Book IV. Title 185. 1 Hein. Ant. IV. 18. 40. 3 Hein. Ant. IV. 18. 42. 2 Ante, Book I. ch. 2. 4 Id. 43. 5 Last Edition by Muhlenbruch. |