In the earliest periods of Roman history, the law was essentially unwritten custom. When disputes arose under the monarchy, the king held the authority to dispense justice as he saw fit. In the early republic this role was inherited by the magistrati, patrician officials elected from the senate annually. This placed the plebeians at a disadvantage as the law was effectively whatever the magistrati wanted it to be. The blatant inequality of this regime caused violent unrest among Rome’s lower classes, prompting the senate to commission the first codification of Roman law, the writing of the twelve tables. All the laws of Rome were compiled and clearly set out in the twelve tables, which, in enabling all members of society to examine and interpret the law, curbed the arbitrary power of the magistrati. The twelve tables were its foundation, but Roman law was constantly evolving as the various legislative assemblies introduced new laws and the mgistrati created legal precedents. It was also never really constant throughout the empire, as local tradition of the provinces blended with the imposed Roman system. After the republic collapsed and gave way to the new imperial regime, the emperor and his legates came to exercise a central role in the legal system, more and more replacing the function of the courts in administering justice.
Many aspects of the roman legal system would be familiar to us, as our modern Canadian system is ultimately derived from it. Roman trials would look similar, with a plaintiff and defendant making their case with evidence and testimony, heard by a jury whose task it was to determine the guilt of the accused, and overseen by a judge who selected punishment. Many of our legal concepts, like the presumption of innocence until proven otherwise, are ultimately Roman. Legal precedent was also as important in ancient Rome as in is today in Canada.
There are however two principle differences between Canadian law and Roman law. The first is that there was essentially no separation between the government and the judicial system; one was merely an extension of the other. The magistrati who presided over the courts were elected politicians, the juries were made up of senators rather than laymen, and a great deal of lawsuits were purely political. Legislative, executive, and judicial branches of government were inextricably linked. Perhaps more importantly, there existed in ancient Rome no form of public prosecution. Unlike in Canada, where the crown prosecutes criminal offenders, in ancient Rome someone who broke the law would only be brought to trial if another private individual decided to lay charges against him.
While there was a jury system in ancient Rome, it was different in many aspects to our own. A Roman jury was typically much larger than modern ones, with as many as 75 members. It was not drawn from the population as a whole, but rather a limited group of patrician males. Unanimity was not required for the jury to convict, which would have been impossible given their size, and neither did they deliberate together before making a decision; instead, a verdict was reached by majority in a secret vote.
Trials in ancient Rome were much less centered on evidence than today. The rules of evidence were very lax, and not really even restricted to the case at hand. Personal attacks on adversaries were permitted and often constituted a large part of the proceedings. The art of persuasive public speaking was far more important than actual legal expertise, especially given that juries were often swayed by the opinion of the mob that would inevitably surround the courts during important trials.
Whereas the principle punishment in our legal system is a prison sentence, this was unheard of in ancient Rome, where prison was reserved for the accused awaiting trial. Instead, punishments tended to be horrific physical ordeals, fines, execution, or being sold into slavery. However, as the presiding magistrate had almost unlimited discretion in sentencing, it was common that full punishment be applied only to the lower classes, while nobles would be let off with a fine or a few years in exile. The Emperor Augustus established some guidelines for sentencing in order to ensure consistency, but even so the prescribed punishments were different for honestiores (the nobles) and inferiores (commoners). It was also not until the time of Augustus that the option of appeal became available.
The trial of Gaius Verres
Gaius Verres served as propraetor of the province of sicily from 73 to 71 BC. During this time the province suffered one of the most egregious displays of official corruption in Roman history, as Verres went about finding every possible means, legal or otherwise, to extract wealth from the island. He intimidated the courts until they ruled at his direction and then auctioned favourable verdicts to litigants. He ruined the farmers by raising grain levies to unprecedented heights. He plundered public statues and private art collections alike and exported the proceeds. He ignored his command of he navy while pirates raided the coasts. He mercilessly bullied anyone that spoke out against him, and ordered extralegal punishments like scourging of the eyes. Almost immediately after the end of his propraetorship representatives from Sicily arrived in Rome accusing him of official extortion, selecting Marcus Tullius Cicero as their advocate. Cicero first formally accused Verres with the extortion of forty million sesterces (about two hundred million dollars), and then had a 110 day adjournment called while he travelled to Sicily to gather evidence. The defence, in typical roman fashion, first attempted to bribe the praetor in charge, and when this proved unsuccessful, set about trying to delay the proceedings until the following year when a more sympathetic praetor might take his place after the elections. Verres conspired to have a separate extortion charge made against the governor of Macedonia with an adjournment of 108 days. This meant it resumed one day before the trial of Verres was planned to resume, and forced the prosecution to wait while this second extortion charge ran its course. When the trial did finally resume, there were only a few days before a string of autumn festivals that would prevent the court from sitting again for more than forty days, increasing the danger that the trial would run into the next year with an unsympathetic praetor. Cicero condensed his case, and after a short opening speech filled several days running through the testimony of a long list of Sicilian witnesses at breakneck speed. However, because this was Rome, proving Verres’ guilt was not enough, so Cicero made sure to also remind the jury that acquitting a corrupt official was certain to spark dangerous unrest among Rome’s lower classes. It was as much for this political reason as the actual evidence that Verres was accordingly found guilty, but in any case it was a great victory that made Cicero’s career as an advocate. Verres fled into exile where he spent the rest of his life.