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Lex Acilia and the Rise of Trial by Jury in the Roman World Anton-Hermann Chroust

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Lex Acilia and the Rise of Trial by Jury in the Roman World Anton-Hermann Chroust Notre Dame Law Review Volume 24 | Issue 1 Article 1 10-1-1948 Lex Acilia and the Rise of Trial by Jury in the Roman World Anton-Hermann Chroust John Richard Murphy Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Anton-Hermann Chroust & John R. Murphy, Lex Acilia and the Rise of Trial by Jury in the Roman World, 24 Notre Dame L. Rev. 1 (1948). Available at: http://scholarship.law.nd.edu/ndlr/vol24/iss1/1 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. NOTRE DAME LAWYER A Quarterly Law Review VOL. XXIV FALL, 1948 No. 1 THE LEX ACILIA AND THE RISE OF TRIAL BY JURY IN THE ROMAN WORLD* The Background of the Lex Acilia T is not commonly known that the institution of trial by jury, for so long the pride of English-speaking peoples, played an important part in the legal system of the Roman world, as long ago as a century and a half before the birth of Christ and can be traced at least as far back as a series of enactments passed by the Roman comitia, or popular as- sembly, in 149 B. C. These enactments, embodied some- what sketchily first in the lex Calpurnia (149 B. C.) and later more fully in the lex Acilia (123/122 B. C.), contained a series of rules to be applied for trying certain specifically defined crimes.1 The most important aspect of this innova- tion was a provision for securing a relatively small body of jurors to determine the guilt or innocence of a person charged with crimes of misconduct while holding public office in the provinces. This was indeed a significant innovation, since previously Roman citizens had been tried before the entire *The authors wish to thank the Reverend Joseph N. Garvin, C.S.C.. and Mr. Richard L. Kilmer for their able and untiring assistance in preparing this paper for publication. I In reference to the Leges iudiciorum publicorum, see article on "Crimen" in Pauly-Wissowa, Realencvklopddie der klassischen Altertumswissenschajt, IV, col. umn 1713 if. NOTRE DAME LAWYER body of their fellow-citizens, assembled in the comitia. Now, with the lex Calpurnia, and its successor, the lex Acilia, a special body of jurors (consilium iudicum) was chosen to de- cide upon the guilt or liability of a defendant charged with public misconduct. This body, the consilium iudicum, was presided over, as a rule, by a special magistrate or praetor, the praetor de repetundis,2 who also was in charge of the pre- liminary investigations and the supervisor of the execution of the final finding of the jury. The purpose of this new procedure was of course to pro- vide an instrument for a better administration of justice throughout the Roman Empire; and these special but per- manent institutions which set up extraordinary courts com- monly referred to as quaestiones perpetuae or quaestiones de repetundis pecuniis were intended to protect the inhabitants of the Roman provinces from widespread extortion by pred- atory Roman officials. The very term quaestio de repe- tundis pecunfis indicates that the chief concern was to estab- lish a court of inquiry-quaestio-todetermine whether or not a Roman official who was accused of taking money from the provinces should be forced to return this money-pecunia repetere. This newly devised court of inquiry was really a body of jurors which represented the Roman popular assem- bly in some of its traditional judicial functions-a miniature popular assembly. In order to expedite matters, the quaestio de repetundis, this special board of jurors, replaced the rather clumsy and often incompetent comitia, the full assembly of the Roman people, by a smaller and hence more efficient "jury court." It should also be remembered here that only Roman citizens could plead before the comitia, and that there were only few people who during the second century before Christ en- joyed the privileges of full Roman citizenship. Now the 2 Th. Mommsen, Rdmisches Strafrecht, in Systematisches Handbuch der deutschen Rechtswissenschaft, Leipzig, Dunker and Humblot (1899), II, 205 f, however, insists that the president is a special magistrate or quaestor. THE LEX ACILIA very nature of the crime de repetundis pecuniis implied that the plaintiff as such was an alien or peregrinus, that is to say, a non-citizen. During the first half of the second century before Christ all complaints made by provincials who were naturally non-citizens, concerning the misconduct of Roman magistrates in the provinces, had to be brought to the atten- tion of the Roman Senate by special ambassadors.' Such a procedure, as might be expected ,was not only most ineffici- ent, but held out little hope for eventual success. For, since these remonstrations were only those of foreigners, the Ro- man Senate could, and often did, refuse to listen to these complaints. Livy 4 reports an interesting incident which happened not long after the passing of the lex Calpurnia.5 Ambassadors of the peoples of both Spains called upon the Senate and charged the Roman governors with extortion. The Senate ordered the praetor Canuleius to convene a special court composed of five senators to try each of the accused persons. -The Senate also decreed that the plaintiffs should choose pa- troni to assist them in their cause. As it happened, the plaintiffs after having chosen four patroni were permitted to appear before a court of reciperatoyes in order to press their charges against the former governor M. Titinius. Titinius was acquitted. After this first failure, the plaintiffs formed two groups, one representing Ulterior Spain and the other Citerior Spain. They brought their charges separately against two new persons who, in order to escape threatened conviction, departed from Rome. Hence the trial was called off. Thus it seems that early quaestiones de repetundis were tried by a "board" of reciperatores, in other words, by an exceptional institution established by a special decree of the Senate whenever the need arose. The lex Calpurnia of 149 s See, for instance, Livy 38.43 f; 39.3; 43.2. See in general, A. Zumpt, Criminalrechi der Rimischen Republik, Berlin, Ferd. Dimmlex (1868), II, 11 ff. 4 Ab Urbe Condita, edit. John L. Lincoln, New York (1882). 41.2. 5 In 149 B. C. NOTRE DAME LAWYER B. C. apparently still operated with reciperatores,although the procedure from now on became a regular one in that a permanent magistrate was appointed to deal with the quae- stiones de repetundis. Livy, on the other hand, does not mention a permanent magistrate presiding at the earlier quaestiones.6 There can be little doubt that the quaestio de repetundis beginning with the lex Calpurnia was introduced for the sake of the socii or Roman allies. This at least is the im- pression we gather from the writings of Cicero on the sub- ject.7 It was, in other words, a lex socialis causa rogata, constituta, comparata. It might be said, therefore, that the whole procedure was a iudiciurn sociale in which the socii re- covered their rights. This idea of Cicero is fully born out by the remaining fragment of the lex Acilia, for here the plain- tiff was usually a "friendly alien" and the witnesses who sup- ported the charges of the plaintiff were also aliens, although the question of guilt and the amount of damage (restitution) was decided by Roman citizens alone. Hence it is obvious that in keeping with the traditional Roman legal policy, the magistrate who presided at the quaestio had to be the praetor peregrinus. As soon as we realize that the quaestio de repetundis originated as a procedure for foreigners we can assume that the whole quaestio de epetundis contained elements borrowed from foreign judicial institutions and foreign lands of which the plaintiffs were citizens. On the whole, it is not surprising that a procedure in which foreigners were involved should be greatly influenced by foreign laws and customs. We know that the judicial reforms of Gaius Gracchus, of which the lex A cilia was an essential part, were 6 Since Livy is quite well informed about the legal institutions of the Repub- lican period of Rome, the fact that he does not mention a permanent magistrate managing the earlier quaestiones perpetuae is rather significant. Hence his state- ment in all its implications can be accepted. 7 See, for example, Cicero, Divinatio in Caecilium, 5.17.19; In Verrem H, 3.94.218. THE LEX ACILIA influenced by Greek legal ideas. Thus, for instance, the lex Frumentariawas modelled after a Greek law, the Greek orig- inal of which has been found in an inscription of Samos. Hence it is quite possible that the innovations contained in the lex Acilia were of Greek origin, or to be more exact, im- provements on already existing Greek laws. The crime for which this novel procedure was instituted is the crimen 7epetundarum, the taking of money from a pro- vincial. One of the laws dealing with this crime has come down to us in the form of a fragment which contains, ac- cording to Mommsen, Zumpt, and Rudorff,8 the so-called lex Acilia repetundarum of 123/122 B. C. This law is also mentioned several times by Cicero? As we have already pointed out, the lex Acilia was closely related to the judicial reforms of Gaius Gracchus.1° We also possess the additional information that about twenty-five years before the lex Acilia, namely in 149 B.
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