One of the most important legacies of Rome was a comprehensive corpus of civil law. Other states in antiquity, of course, had at least some laws and regulations in this area too, but in Rome civil law reached a level of systematization and refinement that was unknown elsewhere. The process had started already in the early republic and reached its peak in the late 2nd and early 3rd centuries AD. Since the republic, the collection of laws and legal rules had been constantly commented on and refined by professional jurists. The first emperor Augustus gave these jurists the official authority to explain the law, their interpretation to be used by judges in their verdicts. These jurists, then, exerted a great influence on the development of private law, the more so because since the 2nd century members of the emperor’s council and high officials in imperial service came to be increasingly recruited from among jurists. Shortly after the middle of that century the jurist Gaius wrote his Institutiones, a textbook for aspiring jurists that thanks to its lucid formulations of
Existing law became decisive for many centuries. With the growth of imperial government and the extension of Roman citizenship to more and more free inhabitants of the empire, subjecting a growing number of people to the rules of Roman law, the role of imperial officials in explaining, applying, and extending the law became more and more important. Since about 200 AD, the highest officials, who also acted as judges, the praefecti praetorio, were often jurists themselves, whose sentences and collections of valid law in their turn became new sources of jurisprudence. The most important of them was the great jurist Ulpian in the 20s and 30s of the 3rd century AD.
In the field of criminal law, such an imposing edifice was never erected: here, rather, chaos and simplification ruled. In the last century of the republic, for Roman citizens there had emerged a system of jurisdiction by panels of jurors, with different courts for different crimes, where the accused could have a lawyer to speak in his defense, and where in general punishments were rather mild (often, exile was the severest punishment instead of execution, and there was no torture during interrogation). Such court cases were for Roman citizens considered the “normal” procedures, all other procedures being “abnormal.” First, the jurisdiction that a Roman magistrate exercised on the basis of his imperium belonged to the latter category—there was no separation of powers between a governor or magistrate and a judge. Unhampered by a panel of jurors or by procedural rules, the magistrate had great freedom of action. In that way, Roman magistrates and their delegates judged their subjects in the provinces as well as non-Romans and Romans of low status in Italy and Rome itself. This made the “abnormal” jurisdiction normal. During the early empire, the system of juror panels for Roman citizens would gradually disappear, and only senators would long preserve the privilege of being judged solely by their fellow senators. The “abnormal” but quick and efficient jurisdiction (cognitio extraordinaria), therefore, became the norm throughout the empire. Roman citizens in the provinces could appeal to the emperor in Rome against judicial verdicts until well into the 2nd century; in the course of the 2nd and 3rd centuries, however, more and more criminal jurisdiction was taken over by the Praetorian Prefects, from whose sentences there was no appeal.
In most criminal cases, it was the rule that the injured party himself or someone on his behalf should bring an accusation and personally convince the judge of the guilt of the accused. This was the accusatorial process, in which there was no public prosecutor and in which the accuser ran the risk, in case the accused was acquitted, of being himself punished for calumny with the punishment due for the crime of which he had wrongly accused the other. In fact, this was a remnant of archaic times in which self-help had been the rule in criminal cases. During the empire, though, another procedure was established: the inquisitorial process. Now it was the magistrate-judge himself taking the initiative and acting as prosecutor and as judge at the same time. In doing so, he was hardly bound by any rules, letting third parties raise accusations as well and shifting the burden of proof onto the accused, who had to prove his innocence. Such procedures were especially applied in cases of maiestas, a broad and dangerously vague category of activities that could be interpreted as high treason or conspiracy against the emperor. In course of time, this inquisitorial procedure became more common, but never fully replaced the accusatorial procedure. This went hand in hand with a coarsening of jurisdiction by simplifying the rules and regularly applying torture, even for witnesses. During the empire, especially in
The 3rd and 4th centuries, torture in the juridical process became widespread, while death penalties became more frequent and were meted out for an increasing number of crimes in the form of crucifixion, being thrown to a wild beast in an arena, or burning at the stake. At the same time, especially in the field of criminal jurisdiction, a distinction was made between the more honorable (honestiores) and the more humble (humiliores) members of society. What had been the rights of all Roman citizens during the republic were now limited to the more honorable ones: they should not be tortured when interrogated, and in case of capital punishment they should be “honorably” beheaded or sent into exile, while the more humble people should always be tortured first and as a capital punishment suffer the spectacular executions already mentioned. In practice, though, the privileges of the honestiores were often infringed upon, mainly in cases of conspiracy against the emperor. The honestiores comprised the elites of senators, equites, city councilors, and veteran legionary soldiers, together probably less than 2% of the population; all the others were humiliores. Thus, the divide in society between the high-placed and the lowly that characterized the empire probably more than earlier periods and that came to surpass all other social distinctions, became very much visible in the field of criminal jurisdiction.
World History
