Montesquieu
 

XI.18 On judicial authority in the Roman government

The autho­rity to judge was given to the peo­ple, to the senate, to the magis­tra­tes, and to cer­tain jud­ges. We must see how it was dis­tri­bu­ted. I shall begin with civil mat­ters.

The consuls jud­ged after the kings,1 as the præ­tors jud­ged after the consuls. Servius Tullius had dives­ted him­self of the judg­ment of civil mat­ters ; the consuls did not judge them either, except per­haps in very rare cases,2 which for this rea­son were cal­led extra­or­di­nary.3 They were content to name the jud­ges and to create the tri­bu­nals that were to judge. It seems from the speech of Appius Claudius, in Dionysius of Halicarnassus,4 that from the year of Rome 259 this was regar­ded as an esta­bli­shed cus­tom among the Romans, and to relate it to Servius Tullius is not to situate it very early.

Every year, the præ­tor drew up a list or table of those he was choo­sing to serve as jud­ges during the year of his magis­tracy. From it a suf­fi­cient num­ber were cho­sen for each cause. This is more or less the way it is prac­ti­ced in England. And what was very favo­ra­ble to free­dom5 is that the præ­tor picked the jud­ges with the consent of the adver­sa­ries.6 The large num­ber of chal­len­ges that can be made today in England is the rough equi­va­lent of this prac­tice.

These jud­ges deci­ded only ques­tions of fact7 : for exam­ple, whe­ther a sum had been paid or not, whe­ther an act had been com­mit­ted or not. But ques­tions of law,8 which requi­red a cer­tain abi­lity, were taken to the tri­bu­nal of the cen­tum­virs.9

The kings reser­ved to them­sel­ves the judg­ment of cri­mi­nal mat­ters, and the consuls suc­cee­ded them in that. It was in func­tion of that autho­rity that the consul Brutus had his chil­dren put to death, and all those who had cons­pi­red for the Tarquins. This power was exor­bi­tant. The consuls, having the mili­tary autho­rity already, exten­ded its exer­cise even into the affairs of the city ; and their pro­ce­du­res, strip­ped of the forms of jus­tice, were vio­lent acts rather than judg­ments.

This cau­sed the crea­tion of the Valerian Law, which autho­ri­zed the appea­ling to the peo­ple of all consu­lar decrees that would threa­ten the life of a citi­zen. The consuls could no lon­ger pro­nounce capi­tal punish­ment against a Roman citi­zen except by the will of the peo­ple.10

We see in the first cons­pi­racy for the return of the Tarquins that the consul Brutus jud­ges the guilty ; in the second, the senate and the comi­tia are assem­bled to judge.11

Laws that were cal­led sacred gave the ple­beians tri­bu­nes who for­med a body which at first had immense pre­ten­sions. There is no tel­ling which was grea­ter, the cowardly bra­zen­ness of the ple­beians in asking, or the condes­cen­sion and ready conces­sion of the senate. The Valerian Law had per­mit­ted appeals to the peo­ple, that is to say, to the peo­ple com­po­sed of sena­tors, patri­cians and ple­beians. The ple­beians deci­ded that it was to them that appeals would be brought. Soon the ques­tion was rai­sed whe­ther the ple­beians could judge a patri­cian : this was the sub­ject of a dis­pute to which the Coriolanus affair gave rise, and which ended with that affair. Coriolanus, accu­sed by the tri­bu­nes before the peo­ple, main­tai­ned against the spi­rit of the Valerian Law that, being a patri­cian, he could be jud­ged only by consuls ; the ple­beians, against the spi­rit of the same law, pre­ten­ded that he should be jud­ged by them alone, and they jud­ged him.

The law of the Twelve Tables modi­fied this. It ordai­ned that the life of a citi­zen could not be deci­ded upon except in the great assem­bly of the peo­ple.12 Henceforth the body of ple­beians or, which is the same thing, the comi­tia by tri­bes, thus jud­ged only cri­mes puni­sha­ble by fines. To inflic­ting capi­tal punish­ment requi­red a law ; to sen­tence to a fine requi­red only a ple­bis­cite.

This pro­vi­sion of the law of the Twelve Tables was most wise. It crea­ted an admi­ra­ble conci­lia­tion bet­ween the body of the ple­beians and the senate. For as the com­pe­tence of both groups depen­ded on the magni­tude of the punish­ment and the nature of the crime, they nee­ded to concert toge­ther.

The Valerian Law remo­ved all that was left in Rome of the govern­ment that had some connec­tion to that of the Greek kings of heroic times. The consuls found them­sel­ves power­less to punish cri­mes. Although all cri­mes are public, one must yet dis­tin­guish those that are of more inte­rest to the citi­zens amongst them­sel­ves from those that are of more inte­rest to the state in its rela­tion­ship to a citi­zen. The for­mer are cal­led pri­vate ; the lat­ter are public cri­mes. The peo­ple them­sel­ves jud­ged public cri­mes ; and with res­pect to pri­vate ones, for each crime, through a spe­cial com­mis­sion, they named a quæs­tor to pro­se­cute it. It was often one of the magis­tra­tes, some­ti­mes a pri­vate man, whom the peo­ple chose. He was cal­led quæs­tor of par­ri­cide. There is men­tion of him in the law of the Twelve Tables.13

The quæs­tor named what they cal­led the judge of the ques­tion, who drew lots for the jud­ges, set up the tri­bu­nal, and pre­si­ded under it at the trial.14

It is well to note here the role played by the senate in the desi­gna­tion of the quæs­tor, so we can see how the autho­ri­ties in this regard were balan­ced. Sometimes the senate had a dic­ta­tor elec­ted to serve the func­tion of quæs­tor15 ; some­ti­mes it orde­red that the peo­ple be convo­ked by a tri­bune in order to name a quæs­tor16 ; finally, the peo­ple some­ti­mes named a magis­trate to make his report to the senate on a cer­tain crime, and ask it to pro­vide a quæs­tor, as we see in the trial of Lucius Scipio17 in Livy.18

In the Roman year 604, seve­ral of these com­mis­sions were made per­ma­nent.19 Progressively, all cri­mi­nal mat­ters were divi­ded into various parts, which they cal­led per­pe­tual ques­tions. They crea­ted various præ­tors, and one of the ques­tions was assi­gned to each of them. For one year they were given the autho­rity to judge cri­mes rela­tive to it, and sub­se­quently they went and gover­ned their pro­vince.

In Carthage, the senate of one hun­dred was made up of jud­ges who were for life.20 But in Rome the præ­tors were annual, and the jud­ges not even for a year, because they were appoin­ted for each case. We have seen in chap­ter vi of this book how much, in cer­tain govern­ments, this pro­vi­sion was favo­ra­ble to free­dom.

The jud­ges were cho­sen from the order of sena­tors up to the time of the Gracchi. Tiberius Gracchus had it decreed that they should be cho­sen from the order of knights, such a consi­de­ra­ble change that the tri­bune boas­ted of having cut the ner­ves of the order of the sena­tors with a sin­gle bill.

It must be obser­ved that the three powers can be well dis­tri­bu­ted with res­pect to the free­dom of the cons­ti­tu­tion, although they are not so well dis­tri­bu­ted with res­pect to the free­dom of the citi­zen. In Rome, where the peo­ple had the grea­test share in the legis­la­tive autho­rity, a share in the exe­cu­tive autho­rity, and a share in the judi­cial autho­rity, they were a great power that had to be balan­ced by ano­ther. The senate indeed had a share in the exe­cu­tive autho­rity ; it had some branch of the legis­la­tive autho­rity21 : but that was not enough to coun­ter­ba­lance the peo­ple. It had to share the judi­cial autho­rity, and did so when the jud­ges were cho­sen from among the sena­tors. When the Gracchi dives­ted the sena­tors of judi­cial autho­rity,22 the senate could no lon­ger hold against the peo­ple. They the­re­fore struck at the cons­ti­tu­tion to favor the free­dom of the citi­zen ; but the lat­ter peri­shed with the for­mer.

Infinite harm came of this. The cons­ti­tu­tion was chan­ged at a time when, in the heat of civil dis­cord, there was barely a cons­ti­tu­tion. The knights were no lon­ger that inter­me­diate order that joi­ned the peo­ple with the senate, and the cons­ti­tu­tio­nal chain was bro­ken.

There were even par­ti­cu­lar rea­sons that ought to have pre­ven­ted trans­fer­ring judg­ments to the knights. The Roman cons­ti­tu­tion was based on the prin­ci­ple that those should be sol­diers who had enough wealth to ans­wer to the repu­blic for their conduct. The knights, as the richest, made up the cavalry of the legions. When their dignity was increa­sed, they no lon­ger wished to serve in that mili­tia ; ano­ther cavalry had to be rai­sed ; Marius took all man­ner of men into the legions, and the repu­blic was undone.23

Besides, the knights were the repu­blic’s tax far­mers : they were greedy, they sowed mise­ries upon mise­ries and pro­du­ced public needs from public needs. Far from giving such peo­ple the autho­rity to judge, they ought to have had jud­ges wat­ching them at all times. That much must be said in praise of the old French laws : they dealt with finan­ciers with the dif­fi­dence one main­tains for ene­mies. When jud­ge­ships in Rome were trans­fer­red to the tax far­mers, that was the end of all vir­tue, all public order, all laws, all magis­tra­cies, all magis­tra­tes.

There is a most naive depic­tion of all this in some frag­ment of Diodorus of Sicily and of Dio. “Mutius Scevola,” says Diodorus, “wan­ted to bring back the old ways and live with fru­ga­lity and inte­grity by his own means. For his pre­de­ces­sors, having for­med a com­pany with the tax far­mers, who at the time were the jud­ges in Rome, had filled the pro­vince with all sorts of cri­mes. But Scevola had the publi­cans brought to jus­tice, and had those who were drag­ging others to pri­son put there them­sel­ves.”24

Dio tells us25 that his lieu­te­nant Publius Rutilius, who was not less hated by the knights, was accu­sed upon his return of having taken pre­sents, and sen­ten­ced to a fine. He imme­dia­tely tur­ned over his pro­perty. His inno­cence appea­red from the fact that he was found to own much less than he was accu­sed of stea­ling, and he sho­wed the tit­les to his pro­perty ; he no lon­ger wan­ted to remain in the city with such peo­ple.

The Italians, fur­ther asserts Diodorus, bought bands of sla­ves in Sicily to till their fields and tend their flocks ; they refu­sed them food.26 The wret­ches were for­ced to become high­way rob­bers, armed with lan­ces and clubs, clo­thed in ani­mal skins and sur­roun­ded by large dogs. The whole pro­vince was laid waste, and the locals could not say they really owned any­thing that was not within the city walls. There was nei­ther pro­consul nor præ­tor who could or would stand up to such may­hem, and dare to punish those sla­ves, because they belon­ged to the knights who were the jud­ges in Rome.27 It was, howe­ver, one of the cau­ses of the slave war. I have only one word for this : a pro­fes­sion that has and can have only pro­fit as its objec­tive, a pro­fes­sion that is always taking, and of which nothing is requi­red, a deaf and inexo­ra­ble pro­fes­sion that was impo­ve­ri­shing wealth and even misery, ought not to have held the jud­ge­ships in Rome.

One cannot doubt that the consuls had had the civil judgments before the creation of the prætors. See Livy, first Decade, book II, p. 19 ; Dionysius of Halicarnassus, book X, p. 627, and the same book, p. 645.

Often the tribunes alone judged ; nothing made them more odious (Dionysius of Halicarnassus, book XI, p. 709).

Judicia extraordinaria. See the Institutes, book IV.

Book VI, p. 360.

“Our ancestors did not wish,” says Cicero, “for a man on whom the parties had not agreed to be judge not only of the reputation of a citizen, but even of the slightest pecuniary matter” (Pro Cluentio).

See in the fragments of the Servilian law, the Cornelian law, and others, in what manner these laws assigned judges for the crimes they proposed to punish. Often they were selected by choice, sometimes by lot, or finally by lots mixed with choice.

Seneca, De beneficiis [‘On benefits’], book III, ch. vii in fine.

See Quintilian, book IV, p. 54 in fol. edition, Paris, 1541, Catalogue no. 1954.

Law 2, following De origine juris. Magistrates called decemvirs presided at the trial, the whole under the direction of a prætor. [Centumvir : “Magistrate and officer in ancient Rome established to judge certain civil matters, like testaments, guardianships, and statutes of limitations” (Trévoux).]

Quoniam de capite civis romani, in jussu populi romani non erat permissum consulibus jus dicere [‘It was thus not permissible for the consuls to sentence a Roman citizen to death without the command of the Roman people’]. See Pomponius, Law 2, following De origine juris.

Dionysius of Halicarnassus, book V, p. 322.

The comitia by centuries. Thus Manlius Capitolinus was judged in these comitia (Livy, first Decade, book VI, p. 68).

Says Pomponius in law 2 of the Digest de origine juris.

See a fragment of Ulpian, who relates another from the Cornelian Law ; it is found in the Collation of the Mosaic and Roman Laws, title 1, de sicariis et homicidiis [‘on assassins and murderers’].

This was the case especially in crimes committed in Italy, where the senate had first right of inquiry. See Livy, first Decade, book IX on the conspiracies of Capua.

It was so in the prosecution and death of Posthumius, year 340 of Rome. See Livy.

This verdict was rendered in the year of Rome 567.

Book VIII.

Cicero, in Brutus.

Proven by Livy (book XLIII), who says that Hannibal made their magistracy annual.

The senatus consults held office for a year, although they were not confirmed by the people. Dionysius of Halicarnassus, book IX, p. 595, and book XI, p. 735.

In the year 630.

Capite censos plerosque [‘the most from the poorest citizens’] (Salluste, Jugurtha).

Fragment of this author, book XXXVI in the compendium of Constantine Porphyrogenitus of the Virtues and Vices [p. 395].

Fragment of his history drawn from Extracts of Virtues and Vices [p. 636].

Fragment of book XXXIV in Extracts of Virtues and Vices [p. 363-367].

Penes quos Romæ tum judicia erant, atque ex equestri ordine solerent sortito judices eligi in causa proprætorum et proconsulum quibus post administratam provinciam dies dicta erat [‘They belonged to the ones who did the judging in Rome, and it was from among the equestrian order that lots were cast to choose judges on the cases involving propraetors and proconsuls, who, after having administered a province, were called to trial’].