A criminal case was an inquiry undertaken solely on the initiative of the magistrate; no question could come before the people until he had investigated it, and was then only submitted in a form prepared by him. In the early popular courts at Rome there was no power of amendment; the people could answer only "Yes" or "No" to the question put before them. We are ignorant of the extent of popular jurisdiction; it is possible that only sentences affecting the caput of a citizen were submitted to the assembly.[1] But there was no real guarantee that even such questions could be forced from the magistrate's court. The lex Valeria which admitted the provocatio imposed no penalty on the magistrate who violated its provisions; the only hope lay in the veto of his colleague, and, if two consuls were in agreement, they might ride roughshod over the law. The consuls were ostensibly the only guardians of the criminal code; as it is inconceivable that, in an age which made little use of writing, two men selected on very varied grounds could have been regarded as fit expounders of this form of jus, we must, even in the domain of criminal law, go behind them and seek its true source in that formidable body, the college of pontiffs. The learning and activity of this body is known to us, however, chiefly in connexion with the divine or family or, as it would have been called in later times, the civil law. The change from monarchy to aristocracy introduced, in Rome as in Greece, an epoch of religious tyranny. A king, who is the head of the religious as well as of the secular life of the state, may hold the balance between the classes. He is more likely to repress than to encourage his advisers; he may find in popular rights a useful check to religious insolence. But remove the king and substitute an aristocracy like the Patriciate whose members hold supreme office in turn; let there be no distinction between clergy and laity in this body, so that there can be no conflict between the secular and sacred power, which may enable a third power to gain a footing; and let this body have a monopoly of the civil law—and we get unequalledto [Greek: apokteinein ê mastigoun], and Plutarch (Publ. 11) seems to give it the same wide scope. He also thinks that Valerius fixed the multa suprema (l.c.), i.e. the largest fine the magistrate could impose without appeal. These statements may, however, be deductions from the later provocatio.]
- ↑ Cicero (de Rep. ii. 31, 53) gives as the tenor of the first Valerian law "ne quis magistratus civem Romanum adversus provocationem necaret neve verberaret." Dionysius (v. 19) adds [Greek: zêmioun eis chrêmata
