N. 8 – 2009 – Tradizione-Romana
Vera V. Dementyeva
Yaroslavl State University
The functions of the
quaestors of Archaic Rome in criminal justice[1]
The question about the functions of the Roman quaestors of
the archaic time in criminal justice needs special examination for several
reasons: firstly, to study the early forms of criminal procedure in Rome,
secondly, to investigate the problem of origin of the republican magistracy of
quaestors (and, accordingly, its evolution).
The antique tradition calls the quaestors
who took part in the prosecution of the Roman citizens either quaestores or quaestores parricidii. Now we shall abstract away from the question
of the time of appearing quaestores
parricidii and “quaestors in general” as it is the subject of
separate analysis, we shall only note that ancient authors date their
appearance either back to the royal period or to the early Republic but in any
case, within the Roman archaic.
The notion quaestores parricidii for the early times quaestors is used in the
first place by Pomponius (Dig.
I.2.2.23) and Festus (P. 247.19 L) and indirectly also by Ioannes Lydus (De
mag. 1.26 – in the transcription into Greek kuaivstwre" parrikidivou). Duncan Cloud, having done the analysis of this text
by Ioannes
Lydus, came to the conclusion that it was not the translation of Pomponius, as
the researchers supposed before, but the lawyer Gaius[2]. These ancient authors giving such
designation of the position indicate by the very name of the officials their
functions in judicial-investigating sphere. Other ancient authors do not give
the attribute parricidii at the
mention of quaestors but connect their original activities with this sphere
– Ulpianus (Dig. I.13.1.1–4).
Still other ancient authors also without giving this attribute provide
information about various functions of the quaestors of archaic Rome including
their competence in criminal procedure: Varro L.L. V. 81, 90–92), Dionysius of Halicarnassus
(VIII. 77.2–78.5), Cicero (Resp. II. 60),
Titus Livius (II. 41. 11; III. 24. 3–7); Pliny the Elder (N.H.
XXXIV. 13).
Theodor Mommsen understood by quaestors
magistrates with broad competence that originally combined the functions both
in the financial sphere and in the area of criminal procedure. He thought that quaestores parricidii was the name of
quaestors when they were engaged in criminal and legal activities[3] but in every way he emphasized the
identity of criminal and financial quaestors.
The point of view of Mommsen was also
accepted, with some variations, by many other researchers including such
prominent experts in antiquity as Gaetano De Sanctis, Pietro De Francisci,
Heinrich Siber, Francesco De Martino[4].
Ernst Herzog saw the functions of quaestores parricidii in prosecuting for
nonpolitical criminal offences covered by the notion parricidium and prosecuted by tacit or positive law[5]. With lex Valeria de provocatione quaestors as he thinks started prosecuting
before people and passing sentence. E. Herzog like Th. Mommsen considered quaestores parricidii to be identical to
quaestores aerarii but their
competence of treasurers he thinks could appear only after the First Punic War.
Herzog noted that before the procedures in quaestio
there were no other permanent authorities in the area of criminal procedure
and therefore it is not clear how the court of criminal law in the Roman state
that was combined with the position of a treasurer in primitive times staying
in close liaison could play such a limited role. Herzog emphasized that there
were no other explanations but the fact that it was a nonpolitical procedure[6].
Mommsen’s approach to this question
was shared in principle by Bernhard Kübler[7]. But he, like E. Herzog, thought that
the original objective of quaestors’ activity was to investigate
complicated crimes and such quaestors were called quaestores parricidii, later they were given the treasury to be
managed.
Otto Karlowa supposed that quaestores parricidii acted as
kings’ assistants in the investigations of murder cases, later they were
transformed into a state authority with amended functions. After it happened,
the attribute to the name of their position expressed in the genitive case (parricidii) was omitted[8].
Wolfgang Kunkel distinguishing sharply
(following Kurt Latte[9] and Kurt Von Frits[10]) between quaestores parricidii and quaestores
aerarii emphasized that quaestores
parricidii had only judicial functions; he traced quaestores parricidii to quaesitores
of the late Republic and even likened quaestores
parricidii to the late republican quaestio[11].
Along the same lines Ernst Meyer thought
that quaestores parricidii were not a
public position but the penal of judges that dealt with murder cases in the forms
similar to civil procedure[12].
We shall present other interpretations of
quaestors’ competence in judicial-investigating sphere as well as the
conclusions of the authors mentioned in a broadened and more concrete way
parallel to giving concrete evidence of sources.
According
to Festus (P.
247.19–24 L)[13], quaestores
parricidii dealt with criminal cases and called the murderer of any citizen
parricida not only the father’s
murderer. Meanwhile Festus refers to the law of Numa Pompilius that had given
the status of a parricide to the citizen’s murderer.
In
connection with the information presented by Festus some essential questions
arise: 1. What is the meaning of the law of Numa? 2. Can the prosecution for a
murder be considered a public act during the Roman archaic times?
K. Latte made the following observation:
the notion “parricida”
has to do with the murder of a free man and the law of Numa is the attempt to
limit the notion of a murder to a calculated murder. If a man killed another
man by accident according to the law of Numa he had to give the deadman’s
relatives the head of a sheep at the public meeting. The killer still dealt
with the deadman’s family and not with the state authorities. A public
meeting was necessary to give publicity to the agreement. Public servants
interfered only to investigate if it was a parricidium
that is if this murder was a calculated act. To this effect quaestores parricidii were appointed and
according to Latte the meaning of the word seemed to corroborate this idea.
Thus, Latte noted that we got rid of the anomaly of public prosecution for the
murder in such an early period[14].
W. Kunkel asserted that we should act on
the premise that the whole criminal law and criminal procedure of the time of
the Laws of XII tables with the exception of perduellio and serious sacral delicts rested on the principle of
private retribution and private prosecution[15]. In this system the state’s
function was only to concern about keeping the rules and responsibility for
retribution set by it, in other words – a judicial function. Kunkel
thought that we should look for quaestores
parricidii here. The German Romanist wrote that they either formed the
court themselves or headed it. Being the judges in a private prosecution
procedure quaestores parricidii, in
his opinion, explained the family their right for private retribution when it
was in force.
Duncan Cloud thinks that the aim of the
law of Numa was to liken the murderer of a Roman citizen to the murderer of a
relative in order to regulate or abolish family vendetta, this law is the
addition of those who kill a citizen with premeditated malice to the category
of murderers[16]. “Although they are called
parricide quaestors, their field is not parricide but murder (Festus, Gaius) or
more vaguely capital crimes (Festus, Pomponius)”[17]. At the same time Duncan Cloud pays
attention to the fact that the research of Y. Tomas[18] shows that there was nothing in the
linguistic data to suppose that in the early Latin parricidium ever meant something else in addition to
“paricide”, “father-murder” or perhaps
“parent-murder”. According to Claud we must make a supposition
including two positions: “1. parricidium
has to mean not the murder of a parent or possibly close kinsman but the murder
of any citizen. 2. parricidium,
having now acquired the meaning “murder of a citizen” acquires yet
another meaning – “capital offence” [19]. Analysing antique reports Claud notices
that if it was a homicide by misadventure a criminal had to give a sheep to the
closest relatives of a deadman to sacrifice a sheep instead of a criminal, that
is a sheep was not a financial compensation but “a substitute” of a
criminal.
Pomponius (Dig. I.2.2.22–23)[20] indicates that quaestores parricidii
were in charge of grave criminal cases (propterea
quaestores constituebantur a populo, qui capitalibus rebus: hi appellabantur
quaestores parricidii), that can be understood, with the evidence of
Festus, as any murder cases and as any capital crimes. Therefore Claud has
reasons to focus attention on two questions[21]: 1. Did the parricide quaestore have any
function with regard to forms of killing other than parricide 2. Did they have
anyr function with regard to offences otherthan killing?
Cloud thinks the first question has a
little more definite answer. If the law of Numa is actual, if parricidas is the archaic form of parricida, the parricide quaestors really dealt with all the cases of
illegal murders of a Roman citizen. The law says: henceforth, the one who kills
a free man with malice will be considered to be a parricide. If Festus connects
the law with quaestores parricidii correctly,
the law involves the enlargement of their role. But the law of Numa does not
corroborate the interpretation that quaestores
parricidii dealt with any grave crimes: they dealt exactly with killers and
not with any criminals – the subjects of capital crimes. Therefore, Cloud
thinks that it is more difficult to answer the second question more definitely.
Let us agree with the understanding of
the discussed law of Numa as the law that established the amenability for a
premeditated murder of a Roman citizen, a man who committed this crime being
given a status of a patricide. Latte’s position corroborated by Cloud
seems to us more convincing.
But we are still not sure if we can
consider the prosecution for the murder a public act in the Roman archaic
period. Was the prosecution for the murder by the state the anomaly in the
early Republic? In other words, is it possible to support the opinion of W.
Kunkel that criminal quaestors were the judges in the private prosecution?
Taking into account the fact that in the antique tradition “the very
words they use are drawn from the language used of the presiding
magistrate”[22], there is some ground for such an
opinion. But Cloud mentioned that the associations of the late Republic “quaestio and quaesitor (in the sense of “president of a court”), it
would hsve been natural for antiquarians to hypothesize a period when quaestors
had been in charge of courts dealing with capital offences”. Therefore
such interpretation of the activity of quaestores
parricidii from the point of view of a British historian is “little
or no independent value”. “However, total scepticism about the
parricide quaestors”, Cloud emphasizes, “is misplaced; though the
antiquarian accounts of their function are probably the product of intelligent
guesswork”. This reasoning seems to us correct. But it is still only a
“negative” argument weakening the position of Kunkel but not
supporting the concept about participation of quaestors in the public
prosecution of murderers.
The substantiation of this, we think, is
in the connection between the early quaestors’ functions and the law of
provocation which came to us from antique records, and the lex curiata de imperio we
also know about it from ancient writers. According to Pomponius the reason for
introducing the position of criminal quaestors was the operation of the law of
provocation to the people’s assembly concerning the decisions about the
life and death of citizens. The fact that Pomponius connects this law with
consuls does not contradict anything. Modern researchers (S. Tondo, B.
Santalucia, L.L. Kofanov and others) think that the provocation appeared as
early as in the kings’ epoch and the lex
Valeria of the early Republic established the right of appeal to people
concerning the decisions of the republican holder of imperium. Not in an
evident cause-and-effect relation but in one fragment and uniform logic,
Plutarch (Pop. XII) and Ioannes
Zonaras (VII. 13.3) inform of the law of Valerius Poplicola of provocation and
about introducing quaestors. Ioannes Lydus (De mag.
1.26)[23] mentions the parricide quaestors as the judges of the murderers of
citizens with all evidence connecting their activity with the application of
the law of provocation.
Let us also pay attention to the fact
that the Laws of XII tables at the same time mentioned criminal quaestors (Dig. I.2.2.23) and allowed to sentence
to death a Roman citizen only in comitiatus
maximus (centuriatus) –
Cic. Leg. III.19.44. Therefore,
criminal procedure based on the law of provocation and the statement of
criminal and legal activities of quaestors were fixed in one IX table of the
decimviral laws.
Mentioned by the tradition connection of
the early quaestura with lex de
provocatione makes it possible for us to consider Th. Mommsen’s
approach to be more surely argued. He considered the functions of quaestors in
the Roman criminal procedure in the unity with his understanding of this legal
procedure as magistrative-comitial. Without supporting the opinion of the
prominent German specialist in Roman studies concerning the identity of quaestores parricidii and quaestors aerarii we think that he was
right that quaestors were the participants of a magistrative-comitial
prosecution of a criminal. The theory of the Roman criminal procedure presented
by Th. Mommsen had direct connection with his theory of a polyfunctional imperium[24]. It was the negation of this theory that
made W. Kunkel consider the quaestors’ functions to be carried out in the
criminal procedure of private prosecution.
Tacitus (Ann. XI. 22) stated that quaestors were mentioned in the lex curiata
de imperio that was adopted concerning the kings, and Lucius Brutus when
the republic was established confirmed its necessity for consuls. Ludwig Lange
supposed – and we agree with him – that in the lex curiata mentioned by Tacitus it was said
that the lex curiata de imperio covered quaestors in the same meaning as
lictors[25]. In other words, quaestors acted as the
assistants to the holders of imperium in
the judicial sphere. Th. Mommsen thought that a magistrate’s coercitio inalienably belonged to major magistrates
with imperium, and quaestors did not
have it but they came from criminal justice; their name originated from these
cases. Quaerere in the state legal
sphere does not have any other meaning than judicial especially criminal
investigation[26].
Having supported the understanding of
quaestors’ functions of the early times within the magistrative-comitial
procedure and having ascertained the fact that the objects of their powers were
such crimes as murders we must try to find out what their functions were that
is what competence these officials had.
Ulpianus (Dig. I.13.1.1-4) with reference
to Junius, Trebatius and Fenestella informs that quaestors from the beginning
were named by the way of investigation (quaerendi),
indicating the fact that quaestors held investigation. L. Lange thought that in
the time of kings quaestors did nothing but searched for suspects and strived
for them to appear before the king’s justice. The opinion of A. Zumpt was
that they gave sentence themselves as the king’s assistants (Zumpt A.W. Das Criminalrecht der römischen Republik. Bd. 1. Abt. 1. Berlin, 1865. S.
According to Mommsen[28] quaestors (he thought they acted
beginning from the Republic) brought a charge of crime, convened centuries when
a citizen exercised his right of provocation. It was in his opinion their main
task. Mommsen talks not about a quaestor’s own right but a mandate of a
major magistrate given to him, about delegating the powers. If there was no
holder of imperium in the city his
judication in criminal cases was given to a quaestor. Mommsen defined
quaestors’ competence as participation in criminal prosecution, and they
acted only there where there was a provocation that is within a charge of a
grave crime. The idea that quaestors according to the ancient law were
authorized to impose small penalties, could deal with criminal procedure that
did not result in death penalty was doubtful Mommsen thought, he wrote that
this question could not be answered for sure, but probably such competence of
quaestors should be denied as they had a jurisdiction exactly in connection
with the law of provocation. He conceded that possibly quaestors’
judication could cover also the crimes for which big monetary penalties were
imposed and not only death penalties. In general the scientist thought that
quaestors’ powers covered exactly the whole public criminal law except
the process perduellio.
And here we come to another question that
was discussed in historiography – about the correlation of quaestores parricidii and duumviri (duoviri) perduellionis.
Duumviri perduellionis as the officials having the jurisdiction
over the activity against the state (crimes against the state) were fixed by
Livius (I. 26.6–7) as introduced by Tullus Hostilius, and later mentioned
by the Roman historian in 384 B.C. in connection with the Marcus Manlius
Capitolinus trial (VI. 20.12). In 63 B.C. Cicero mentioned them in the speech
in defence of Gaius Rabirius (Pro Rab.
perd. 12).
Th. Mommsen
defined the correlation of the functions of quaestores
parricidii and duumvirs in the following way: probably, with the
establishment of the Republic criminal jurisdiction was divided in the way that
regular quaestors dealt only with general crimes and political crimes in fact
were in charge of duumvirs introduced when necessary[29]. The counter-evidence – quite
significant – of this approach is the case when quaestors prosecuted
Cassius exactly for perduellio (Liv. II.41.11)[30].
The hypothesis ruling out such
contradiction of the historical reconstruction and the sources was presented by
Bernardo Santalucia[31]. In the reconstruction of Santalucia the
Early Republic quaestors investigated all crimes including perduellio. But in addition to quaestors when high treason was
evident extra-ordinary judges – duumviri
could be appointed who processed a case at earliest possible date. Santalucia
gave the following explanation of the correlation of the functions of early
quaestors and duumviri perduellionis.
The tradition testifies that quaestores
parricidii and duumviri perduellionis
were assistants to the king in the prosecution of criminals. The function
of quaestores parricidii, the Italian
researcher thought, was to ascertain if it was a murder, if it was premeditated
and also to launch the mechanism of vendetta in the presence of people at a contio. Duumviri perduellionis formed an extra-ordinary tribunal to
proclaim the amenability for the act done and an immediate criminal sentence
upon the person who was accused of perduellio
and caught at the scene of the crime[32].
We do not see the objections on the
matter of principle to the fact that quaestores
parricidii as well as duumviri in
charge of the crimes against the state could be engaged in the investigation of
perduellio and duumviri perduellionis were used when the crime was evident (the
criminal was caught at the scene of the crime). But we can not agree with
Santalucia that both quaestors and duumviri
were self-sufficient courts that could make conclusive ruling concerning
such serious occasion without comitia.
The material of the sources about the presence of the right of provocation in
the archaic Rome contradicts this point of view. In other words, without
disputing the conclusion of B. Santalucia about quaestors’ participation
in the prosecution of state criminals, we can not agree with the understanding
of their activity outside the magistrative-comitial process. Taking into
consideration that even W. Kunkel (the most consistent opponent of the
magistrative-comitial process) thought that the process perduellio was public and not private, recognizing the possibility
of quaestors’ participation in it based on the narrative sources only
supports this theory of Mommsen though contradicting his understanding of
certain functions of these officials.
Recognizing or denying a public character
of the criminal procedure in the archaic Rome inevitably affects the researchers’
ideas of quaestors’ certain functions, of how exactly they were involved
in the trial. The supposition of B. Santalucia that they had to regulate
vendetta (blood feud) between two families was recognized by D. Cloud[33]. But Cloud wondered what exactly took
place: “The trial of the delinquent? The announcement of the innocence or
guilty party to the agnates? The announcement of a prima facie case against the
suspect, prior to an action against him before a judge or judges? The second
alternative is perhaps the most plausible.” And we think that the
accusation that evidently was brought by a quaestor fits into the
magistrative-comitial public process in the most natural and consistent way.
To expand the boundaries of our notions
about the activity of quaestors, in addition to priority functions of
investigation and accusation – Varro helps in an indirect way saying (L.L. V.81)[34] that the quaestors, whose name
originated from the quaerere meaning
to look for, looked for crimes that were looked for by triumviri capitales in his times. Thus, Varro connects with quaestors (without
specifying the name) the functions of criminal investigators. The ananlogy of
them with criminal triumviri’s competence given by Varro forces to enumerate the functions of
the latter. Тresviri
capitales are minor
magistrates, they entered into the vigintisexviri, acted from the third century B.C. Criminal triumviri held preliminary
investigation, supervised prisons, serving of a sentence, keeping fetters bound
on the guilty intact, executed capital punishment. In addition tresviri
capitales passed an interlocutory
sentence, had night police supervision in the city. They could also penalize
citizens for sacral crimes – renunciation of traditional Roman religious
ceremonies, worshipping alien gods (Cic. Leg. III. 6; Sall. Cat.
30.7; 55 .1; Liv. XXV. 14 IV.46. 9; XXXIX .14. 10; XXXIX. 14. 10; XXXIX. 16.
12). Possibly, quaestors as the predecessors of criminal triumviri according to
Varro also had some of these functions.
A more
detailed understanding of the functions of quaestors within the criminal-legal
sphere can be obtained with the help of concrete examples of their activity
within it expressed in the narrative tradition. In these examples quaestors act
in the period of early Republic and are called just quaestores.
The first
story of the antique tradition of this kind is the accusation of Spurius
Cassius (486 B.C.). Direct participation of quaestors in this case is fixed by
Livius (II.41.11),
Dionysius of Halicarnassus (VII.77. 2–5) and Cicero (Resp. II.60).
Livius and Dionysius call the quaestors in this episode by names (Lucius
Valerius Poplicola and Caesoninus Fabius) in the description of these antique
historians two quaestors were involved in the Spurius Cassius trial, according to Cicero it was only one, and
nameless. These evidences of antique authors show that the quaestors brought
Cassius to book on a charge of a crime against the state, namely: they accused
him, convened people and brought him to book before people as well as sentenced
him by people’s agreement to death (the sentence itself according to
Livius was passed by people).
The question
arises, – what judicial people’s assembly was convened by the
quaestors? Dionysius writes about ekklesia but the Greek authors could call any
meeting using this term with regard to Rome. But could a quaestor as a
magistrate without imperium convene comitia? Varro (L.L. VI.90–91)[35] helps to
answer these questions.
It’s
quite evident that Varro tells about the calling of a meeting (contio)
by a quaestor. In his story the word comitia is used once but without saying
what comitia (centuriata or tributa) was convened which
means that the word is used collectively – “the assembly of
people”. Judicial contiones usually preceded comitia and
gradually turned into them (they were held in different time but in one place);
at contiones people discussed, at comitia they took decisions.
“The aggregate of a contio and comitia in this case forms
“a logically complete” institution iudicia publica”[36]. Varro’s indication to the fact
that a defendant was summoned by a praetor and not by a quaestor corroborates
the standard: ius vocationis was the
constituent of the iurisdictio of
magistrates with imperium.
If Th. Mommsen thought that convening
people a quaestor relied on the mandate given by the consul we think that
delegating of imperium in this case
was not necessary. The process of discussing and taking a decision by people
was two-stage a quaestor convening contiones
and later, at comitia, already a
major magistrate took the chair.
Since for the
story of Spurius Cassius both Dionysius and Livius inform of the presence of
another version of his conviction (by Cassius’s father: either within patria
potestas according to Livius or by the
Senate’s decision according to Dionysius) so K. Latte and D. Cloud had
doubts about the historicity of the report[37]. Latte noted that the version of the
participation of quaestors came from Calpurnius Piso who thought of it as
“the most appropriate to the dignity of the state”. Meanwhile Cloud
supposed that there was the element of truth in the tradition but there was no
historicity in the mention of the role of quaestors in the conviction of Cassius.
We think relying on the arguments mentioned above that quaestors convened a
judicial contio and not comitia therefore there is not any lack
of correspondence with public standards and the possibility of the punishment
by the father does not affect the reconstruction of quaestors’ powers in
the judicial sphere (for Dionysius and Livius presenting also an alternative
version did not cast doubt on these powers).
The second
case dates back to 459 B.C. and is mentioned only by Livius. According to his
narration the quaestors Aulus Cornelius and Quintus Servilius brought Marcus
Volscius to trial for evident perjury against Caesoninus (Liv. III. 24.3)[38]. Voting on this case took place –
because of the opposition of plebeian tribunes to quaestors – already
during the dictatorship of Lucius Quinctius Cincinnatus (Liv. III. 24. 7,
29.6). It is interesting that Marcus
Volscius was suggested when he suspected Caesoninus to bring a private
accusation (Liv. III. 24.5)[39], but he did not do it (Liv. III. 24.6: cum ad iudicium ire non auderet), probably being afraid to fail in
a suit and in this case he himself could be prosecuted[40].
This story also raised doubts about the
historicity of information[41]. The reason for these doubts was the
evidence of the Roman historian that Volscium got banishment prescribed as the
punishment. W. Kunkel considered it to be the annalistic fabrication because
according to the laws of XII tables that corroborated the existed practice for
perjury the convicts were sentenced to throwing from Saxurn Tarpeium. D. Cloud
added to this that Volscium could withdraw before being convicted by people and
not after it. Our objections to this argumentation of the negative assessment
of the authenticity of the given information are caused by the fact that
firstly the situation still dates back to the time before the adoption of the
laws of XII tables therefore there were no written regulations yet, and
secondly even Cicero noted in the examples, dating back to the early Republic,
that comitia sentenced convicts to be
banished (Dom. 86).
The third example is connected with
Marcus Furius Camillus and is dated by the researchers to either 396 or 391
B.C. According to the report of Pliny the Elder (N.H. XXXIV.13: Camillo inter
crimina obiecit Spurius Carvilius quaestor, ostia quod aerata haberet in domo)
Camillus was accused by a quaestor Spurius Carvilius of embezzlement, the
evidences of the crime being the bronze doors in his house. This information has something in common
with the reports of Cicero (Cic. Dom. 86) and Plutarch (Cam. 12.1), but there is no certainty in
the identity of the situation: Cicero did not say who exactly prosecuted
Camillus and Plutarch named another prosecutor – Lucius Apuleius and his
position was not noted.
This story gave rise to doubt in the
historicity of the information of the tradition in a specific way. On the one
hand researchers emphasized the connection between quaestors’ prosecution
and their treasury functions that according to researchers corroborated
trustworthiness of the story[42]. But there were doubts about the
prosecutor’s role of the quaestor concerning Camillus because there was
also a story about the prosecution of Camillus by a plebeian tribune. D. Cloud
presents the opinion of the editors of one of the editions of “Naturalis
Historia” by Pliny that the quaestor Carvilius was the witness of the
prosecution of Camillus mentioned by Livius for 391 B.C. (V.32. 8–9),
when the prosecutor was a plebeian tribune, L. Apuleius (this name was also
noted by Plutarch) and the trial was for the Veii booty. The banishment of
Camillus is considered in historiography as the tradition’s fiction
introduced by Quintus Ennius in order to explain the defeat at the river Allia
by the long absence of Camillus[43]. However, D. Cloud writes, “the
veracity of details of the of the prosecution which led to his exile is a very
different matter”[44].
Let us admit that the reconstruction of a biographic fact of the commander and
the reconstruction of public mechanisms of archaic Rome are different things:
in this case it is more important that ancient authors considered criminal
prosecution by quaestors quite admissible.
The latest example of quaestors’
participation in prosecution is in Varro’s fragment (L.L. VI. 90–91) cited above. The quaestor M. Sergius
prosecuted Trogus convening a contio.
The story is not dated, only indirect dating is possible: the plural form of
the word “praetor” forces
to date this event to the period not earlier than 242 B.C. and the linguistic
peculiarities of the document most likely to the first half of the second
century B.C.
[45]. Varro does not note what Trogus was
accused for; Claud thinks that he could be accused for stealing the money from
the treasury in the temple of Saturn[46], but it is only an arbitrary assumption.
Thus, all the examples of participation
of “just quaestor” in the cases of the sphere criminal justice have
nothing to do with murders but other, though serious, crimes. All three dated
examples date back to the early Republic, before the beginning of the fourth
century B.C. inclusive.
The analyzed sources material (the
concepts offered being carefully examined and the researches results being
taken into account) allows drawing the following conclusions. Quaestores parricidii that appeared in
the kings’ period and existed in the early Republic acted within the
magistrative-comitial process of a public character based on the law of
provocation. Quaestores parricidii were
included in the lex curiata de imperio of republican
magistrates as the assistants to major officials in the sphere of criminal
justice. To all appearance, after that (with the transition to the Republic)
quaestors’ competence began to cover the prosecution not only of
murderers but also other criminals who committed grave crimes therefore in the
name of their position the indication to “parricide” (interpreted
broadly as “the murder of a citizen” from the kings’ time)
was omitted. What the correlation was of quaestores aerarii with these
officials is a separate question and needs special consideration.
The main functions of the quaestors in
the criminal sphere were the investigative actions in relation to people who
committed a calculated murder and later any other grave crime (punished by
death penalty) and convening of a judicial meeting (contio) where people were put in centuries to vote at comitia. At the contio of Roman citizens quaestors acted as prosecutors (not at comitia where major magistrates only put
the matter to a vote). In addition to the main functions the quaestors acting
in the area of prosecution took part in executing the sentence (punishing
citizens), supervised custody. Quaestors’ competence covered all the
cases of both political and nonpolitical character including the cases that
could be determined as “the crimes against the state”. For the latter
when the criminal was caught in the act duumviri
could be involved whose task was the summary investigation, accusation and
punishment of a criminal.
In whole, we think that the functions of
the quaestors of archaic Rome within criminal justice included a pre-trial
examination (investigation), participation in trial as a prosecutor at a contio convened by them and in the
execution of punishment of citizens who were given sentence for grave crimes.