forms—death by the arbor infelix or from the Tarpeian rock—it was fixed by the mos majorum. The trial was a personal investigation (quaestio) undertaken by the king, with the assistance of a chosen body of advisers; and he might give judgment himself. But sometimes his judgment was conditioned. He specified the crime under which the accused was to be tried, and the penalty to be inflicted, but left the finding on the facts to his delegates.[1] Two such classes of delegates are attributed to the regal period, the duumviri perduellionis and the quaestores parricidii.[2]
There may have been an appeal from the delegates to the king, but tradition does not credit the king with any power of pardon. Whether the power of pardon resided anywhere depends on our interpretation of the trial of Horatius,[3] which was believed to furnish the archetype of the provocatio. From this story appears the belief, which is often stated by other authorities,[4] that the appeal to the people existed in the regal period, but one modified by the view that the citizens had no standing right of appeal against the king such as that secured against the Republican magistrate by the lex Valeria. The king, Tullus Hostilius, allows the appeal.[5] The early dictatorship was similarly exempt from the necessity of permitting it, and on one occasion the precedent of Horatius was appealed to for the purpose of showing that, as the king had allowed, so the dictator should allow, the appeal.[6] But the dictatorship is a revival of the military side of the monarchy with the military jurisdiction which the king exercises over Horatius. It is quite possible that before the close of the monarchy custom had established different spheres of criminal jurisdiction for the people and the king respectively;[7] in some the people might have had a right to be judges in the. Cf. Varro L.L. v. 81. Mommsen (Staatsr. ii. pp. 523 sq.) thinks the financial quaestors as standing officials originated with the Republic; but he believes (p. 539) that they had their origin in the criminal quaestores (a word which bears the same relation to quaesitores as sartor to sarcitor or quaero to quaesivi, p. 537). Cf. Tac. Ann. xi. 22 (p. 81); Ulpian in Dig. i. 13.]
- ↑ Liv. i 26.
- ↑ Zonaras vii. 13 (who attributes their institution to Publicola) identifies the quaestores with the quaestores parricidii, [Greek: hoi prôton men tas thanasimous dikas edikazon, othen kai tên prosêgorian tautên dia tas anakriseis eschêkasi kai dia tên tês alêtheias ek tôn anakriseôn zêtêsin
- ↑ Liv. l.c.
- ↑ Cic. pro Mil. 3, 7; de Rep. ii. 31, 54; Festus p. 297.
- ↑ Liv. i 26 "Si a duumviris provocarit provocatione certato . . . auctore Tullo, . . . 'provoco' inquit."
- ↑ ib. viii. 33.
- ↑ Cf. Ihering Geist des röm. Rechts i. pp. 257 ff.
