cases at Rome during the reign of Tiberius Cæsar; and thus to furnish a model of criminal procedure which Pilate should have imitated in the trial of Jesus at Jerusalem. In the last chapter, we saw that the proceedings of the permanent tribunals (quæstiones perpetuæ) at Rome furnished models for the trial of criminal cases in the provinces. It is now only necessary to determine what the procedure of the permanent tribunals at the time of Christ was, in order to understand what Pilate should have done in the trial of Jesus. But the character of the quæstiones perpetuæ, as well as the rules and regulations that governed their proceedings, cannot well be understood without reference to the criminal tribunals and modes of trial in criminal cases that preceded them. Roman history discloses two distinct periods of criminal procedure before the organization of the permanent tribunals about the beginning of the last century of the Republic: (1) The period of the kings and (2) the period of the early republic. Each of these will be here briefly considered.

The Regal Period.—The earliest glimpses of Roman political life reveal the existence of a sacred and military monarchy in which the king is generalissimo of the army, chief pontiff of the national religion, and supreme judge in civil and criminal matters over the lives and property of the citizens. These various powers and attributes are wrapped up in the imperium. By virtue of the imperium, the king issued commands to the army and also exercised the highest judicial functions over the lives and fortunes of his fellow-citizens. The kings were thus military commanders and judges in one person, as the consuls were after them. The monarch might sit alone and judge cases and impose sentences; but the trial was usually a personal investigation undertaken by him with the advice and aid of a chosen body of judges from the senate or the pontifical college. According to Dionysius, Romulus ordered that all crimes of a serious nature should be tried by the king, but that all lighter offenses should be judged by the senate.[17] Little confidence can be reposed in this statement, since the age and deeds of Romulus are exceedingly legendary and mythical. But it is historically true that in the regal period of Rome the kings were the supreme judges in all civil and criminal matters.

The Early Republican Period.—The abolition of the monarchy and the establishment of the republic witnessed the distribution of the powers of government formerly exercised by the king among a number of magistrates and public officers. Consuls, tribunes, prætors, ædiles, both curule and plebeian, exercised, under the republic, judicial functions in criminal matters.

The consuls were supreme criminal judges at the beginning of the republic, and were clothed with unlimited power in matters of life and death. This is shown by the condemnation and execution of the sons of Brutus and their fellow-conspirators.[18] Associated with the consuls were, at first, two annually appointed quæstors whom they nominated. The functions of the quæstors were as unlimited as those of their superiors, the consuls; but their jurisdiction was confined chiefly to criminal matters and finance.

The tribunes, sacred and inviolable in their persons as representatives of the plebs and as their protectors against patrician oppression, exercised at first merely a negative control over the regular magistracies of the community. But, finally, they became the chief public prosecutors of political criminals.

The prætors, whose chief jurisdiction was in civil matters, were potentially as fully criminal judges as the consuls, and there may have been a time when a portion of criminal jurisdiction was actually in their hands. In the later republic, they presided over the quæstiones perpetuæ, permanent criminal tribunals.

The ædiles are found in Roman history exercising functions of criminal jurisdiction, although their general powers were confined to the special duties of caring for the games, the market, and the archives.

But the criminal jurisdiction of the magistrates who replaced the king at the downfall of the monarchy was abridged and almost destroyed by the famous lex Valeria (de provocatione). This law was proposed 509 B.C. by Publius Valerius, one of the first consuls of Rome, and provided that no magistrate should have power to execute a sentence of death against a Roman citizen who had appealed to the judgment of the people in their public assembly. This lex was the magna charta of the Romans and was justly regarded by them as the great palladium of their civil liberty. And it was this law that inaugurated the popular jurisdiction of the comitia. The result was that for more than three hundred years the final determination of the question of life or death was in the hands of the people themselves. From the passage of the Valerian law the function of the magistrates was limited to the duty of convincing the people of the guilt of an alleged criminal against whom they themselves had already pronounced a preliminary sentence. The magistrates were, therefore, not so much judges as prosecutors; the people were the final judges in the case.

Mode of Trial in the Comitia, or Public Assembly.—On a certain day, the prosecuting magistrate, who had himself pronounced the preliminary sentence against an accused person who had appealed to the people in their public assembly, mounted the rostra, and called the people together by the voice of a herald. He then made a proclamation that on a certain day he would bring an accusation against a certain person upon a given charge. At the same time, he called upon this person to come forward and hear the charges against him. The defendant then presented himself, listened to the accusation, and immediately furnished bond for his appearance, or in default of bail, was thrown into prison. Upon the day announced at the opening of the trial, the prosecuting magistrate again mounted the rostra, and summoned the accused by a herald, if he was at large, or had him brought forth if he was in prison. The prosecutor then produced evidence, oral and documentary, against the prisoner. The indictment had to be in writing, and was published on three market days in the Forum. The prosecution came to an end on the third day, and the accused then began his defense by mounting the rostra with his patron and presenting evidence in his own behalf. The prosecutor then announced that on a certain day he would ask the people to render judgment by their votes. In the early years of the republic, the people voted by shouting their approval or disapproval of the charges made; but later a tablet bearing one of the two letters V. (uti rogas) or A. (absolvo) was used as a ballot.

The effect of popular jurisdiction in criminal processes at Rome was in the nature of a two-edged sword that cut both ways. It was beneficial in the limitations it imposed upon the conduct of single magistrates who were too often capricious and despotic. But this benefit was purchased at the price of a kind of popular despotism not less dangerous in its way. It has always been characteristic of popular assemblies that their decisions have been more the outcome of passion and prejudice than the result