Of the judiciary Power in the Roman Government

THE judiciary power was given to the people, to the senate, to the magistrates, and to particular judges. We must see in what manner it was distributed, beginning with their civil affairs.

The consuls had the judiciary power after the expulsion of the kings, as the prætors were judges after the consuls. Servius Tullus had divested himself of the power of determining of civil causes, which was not resumed by the consuls, except in some very rare cases, for that reason called extraordinary. They were satisfied with naming the judges and establishing the several tribunals. By a discourse of Appius Claudius, in Dionysius Halicarnasseus, it appears, that, so early as the 259th year of Rome, this was looked upon as a settled custom among the Romans; and it is not tracing it very high to refer it to Servius Tullus.

Every year, the prætor made a list of such as he chose for the office of judges during his magistracy. A sufficient number was pitched upon for each cause; a custom very near the same as that now practised in England. And what was extremely favourable to liberty was, the prætor’s fixing the judges with the consent of the parties. The great number of exceptions, that can be made in England, amounts pretty near to this very custom.

The judges decided only the questions relating to matter of fact: for example, whether a sum of money had been paid or not; whether an act had been committed or not. But, as to questions of law, as these required a certain capacity, they were always carried before the tribunal of the centumvirs.

The kings reserved to themselves the judgement of criminal affairs, and in this were succeeded by the consuls. It was in consequence of this authority that Brutus put his children, and all those who were concerned in the Tarquinian conspiracy, to death. This was an exorbitant power. The consuls, already invested with the military command, extended the exercise of it even to civil affairs; and their procedures, being stripped of all forms of justice, were rather exertions of violence than legal judgements.

This gave rise to the Valerian law, by which it was made lawful to appeal to the people from every decision of the consuls that endangered the life of a citizen. The consuls had no longer a power of pronouncing sentence in capital cases against a Roman citizen, without the consent of the people.
We see, in the first conspiracy for the restoration of the Tarquins, that the criminals were tried by Brutus the consul; in the second, the senate and comitia were assembled to try them‡.

The laws, distinguished by the name of sacred, allowed the plebeians the privilege of choosing tribunes; from whence was formed a body, whose pretensions at first were immense. It is hard to determine which was greater, the insolence of the plebeians in demanding, or the condescension of the senate in granting. The Valerian law allowed of appeals to the people; that is, to the people composed of senators, patricians, and plebeians. The plebeians made a law that appeals should be brought before their own body. A question was soon after started, whether the plebeians had a right to try a patrician: this was the subject of a dispute to which the impeachment of Coriolanus gave rise, and which ended with that affair. When Coriolanus was accused by the tribunes before the people, he insisted, contrary to the spirit of the Valerian law, that, as he was a patrician, none but the consuls had a power to try him: on the other hand, the plebeians also, contrary to the spirit of that same law, pretended, that none but their body were empowered to be his judges, and accordingly they pronounced sentence upon him.

This was moderated by the law of the twelve tables; whereby it was ordained, that none but the great assemblies of the people† should try a citizen in capital cases. Hence the body of the plebeians, or (which amounts to the very same) the comitia by tribes, had no longer any power of hearing criminal causes, except such as were punished with fines. To inflict a capital punishment, a law was requisite; but, to condemn to a pecuniary mulct, there was occasion only for a plebiscitum.

This regulation of the law of the twelve tables was extremely prudent. It produced an admirable balance between the body of the plebeians and the senate: for, as the full judiciary power of both depended on the greatness of the punishment and the nature of the crime, it was necessary they should both agree.

The Valerian law abolished all the remains of the Roman government any way relative to that of the kings of the heroic times of Greece. The consuls were divested of the power to punish crimes. Though all crimes are public, yet we must distinguish between those which more nearly concern the mutual intercourse of citizens, and those which more immediately interest the state in the relation it bears to its subjects. The first are called private; the second, public. The latter were tried by the people; and, in regard to the former, they named, by particular commission, a quæstor for the prosecution of each crime. The person chosen by the people was frequently one of the magistrates, sometimes a private man. He was called the quæstor of parricide, and is mentioned in the law of the twelve tables.‡

The quæstor nominated the judge of the question, who drew lots for the judges, and regulated the tribunal, in which he presided.

Here it is proper to observe what share the senate had in the nomination of the quæstor, that we may see how far the two powers were balanced. Sometimes the senate caused a dictator to be chosen, in order to exercise the office of quæstor§; at other times they ordained that the people should be convened by a tribune, with a view of proceeding to the nomination of a quæstor: and, in fine, the people frequently appointed a magistrate to make his report to the senate concerning a particular crime, and to desire them to name a quæstor, as may be seen in the judgement upon Lucius Scipioin Livy.

In the year of Rome 604, some of these commissions were rendered permanent. All criminal causes were gradually divided into different parts; to which they gave the name of perpetual questions. Different prætors were created, to each of whom some of those questions were assigned. They had a power, conferred upon them for the term of a year, of trying such criminal causes as were any way relative to those questions, and then they were sent to govern their province.

At Carthage the senate of the hundred was composed of judges who enjoyed that dignity for life: But, at Rome, the prætors were annual; and the judges were not even for so long a term, but were nominated for each cause. We have already shewn, in the sixth chapter of this book, how favourable this regulation was to liberty in particular governments.

The judges were chosen from the order of senators, till the time of the Gracchi. Tiberius Gracchus caused a law to pass, that they should be taken from the equestrian order; a change so very considerable, that the tribune boasted of having cut, by one rogation only, the sinews of the senatorian dignity.

It is necessary to observe, that the three powers may be very well distributed in regard to the liberty of the constitution, though not so well in respect to the liberty of the subject. At Rome the people had the greatest share of the legislative, a part of the executive, and part of the judiciary, power; by which means they had so great a weight in the government, as required some other power to balance it. The senate, indeed, had part of the executive power, and some share of the legislative; but this was not sufficient to counterbalance the weight of the people. It was necessary that they should partake of the judiciary power; and accordingly they had a share when the judges were chosen from among the senators. But, when the Gracchi deprived the senators of the judicial power, the senate were no longer able to withstand the people. To favour, therefore, the liberty of the subject, they struck at that of the constitution: but the former perished with the latter.

Infinite were the mischiefs that from thence arose. The constitution was changed at a time when the fire of civil discord had scarce left any such thing as a constitution. The knights ceased to be that middle order which united the people to the senate; and the chain of the constitution was broke.

There were even particular reasons against transferring the judiciary power to the equestrian order. The constitution of Rome was founded on this principle, that none should be inlisted as soldiers but such as were men of sufficient property to answer for their conduct to the republic. The knights, as persons of the greatest property, formed the cavalry  of the legions. But, when their dignity increased, they refused to serve any longer in that capacity, and another kind of cavalry was obliged to be raised. Thus Marius inlisted all sorts of people into his army, and soon after the republic was lost.

Besides, the knights were the farmers of the revenue; men whose great rapaciousness increased the public calamities. Instead of giving to such as those the judicial power, they ought to have been constantly under the eye of the judges. This we must say in commendation of the ancient French laws, that they have acted towards the officers of the revenue with as great a diffidence as would be observed between enemies. When the judiciary power at Rome was transferred to the publicans, there was then an end of all virtue, polity, laws, and government.

Of this we find a very ingenuous description in some fragments of Diodorus Siculus and Dio. “Mutius Scevola (says Diodorus) wanted to revive the ancient manners and the laudable custom of sober and frugal living; for his predecessors, having entered into a contract with the farmers of the revenue, who at that time were possessed of the judiciary power at Rome, had infected the province with all manner of corruption. But Scevola made an example of the publicans, and imprisoned those by whom others had been confined.”

Dio informs us, that Publius Rutilius, his lieutenant, was equally obnoxious to the equestrian order, and that, upon his return, they accused him of having received some presents, and condemned him to a fine; upon which he instantly made a cession of his goods. His innocence appeared in this, that he was found to be worth a great deal less than what he was charged with having extorted, and he shewed a just title to what he possessed: but he would not live any longer in the same city with such profligate wretches.

The Italians, says Diodorus again, bought up whole droves of slaves in Sicily, to till their lands, and to take care of their cattle; but refused them a necessary subsistence. These wretches were then forced to go and rob on the highways, armed with lances and clubs, covered with beasts skins, and followed by large mastiffs. Thus the whole province was laid waste, and the inhabitants could not call any thing their own but what was secured by fortresses. There was neither proconsul nor prætor that could or would oppose this disorder, or that presumed to punish these slaves, because they belonged to the knights, who, at Rome, were possessed of the judiciary power§. And yet this was one of the causes of the war of the slaves. But I shall add only one word more. A profession, deaf and inexorable, that can have no other view than lucre, that was always asking and never granting, that impoverished the rich and increased even the misery of the poor; such a profession, I say, should never have been intrusted with the judiciary power at Rome.

Source: THE SPIRIT OF LAWS: Baron de Montesquieu 1748