V. The free citizens of Athens and Rome enjoyed in all criminal cases the invaluable privilege of being tried by their country.
1. The administration of justice is the most ancient office of a prince: it was exercised by the Roman kings and abused by Tarquin, who alone, without law or council, pronounced his arbitrary judgments. The first consuls succeeded to this regal prerogative; but the sacred right of appeal soon abolished the jurisdiction of the magistrates, and all public causes were decided by the supreme tribunal of the people. But a wild democracy, superior to the forms, too often disdains the essential principles of justice: the pride of despotism was envenomed by plebeian envy, and the heroes of Athens might sometimes applaud the happiness of the Persian, whose fate depended on the caprice of a _single_ tyrant. Some salutary restraints, imposed by the people on their own passions, were at once the cause and effect of the gravity and temperance of the Romans. The right of accusation was confined to the magistrates. A vote of the thirty-five tribes could inflict a fine; but the cognizance of all capital crimes was reserved by a fundamental law to the assembly of the centuries, in which the weight of influence and property was sure to preponderate. Repeated proclamations and adjournments were interposed to allow time for prejudice and resentment to subside: the whole proceeding might be annulled by a seasonable omen or the opposition of a tribune; and such popular trials were commonly less formidable to innocence than they were favorable to guilt. But this union of the judicial and legislative powers left it doubtful whether the accused party was pardoned or acquitted; and in the defence of an illustrious client the orators of Rome and Athens address their arguments to the policy and benevolence, as well as to the justice, of their sovereign.
2. The task of convening the citizens for the trial of each offender became more difficult as the citizens and the offenders continually multiplied, and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates or to extraordinary inquisitors. In the first ages these questions were rare and occasional. In the beginning of the seventh century of Rome they were made perpetual: four prætors were annually empowered to sit in judgment on the state offences of treason, extortion, peculation, and bribery; and Sylla added new prætors and new questions for those crimes which more directly injure the safety of individuals. By these inquisitors the trial was prepared and directed; but they could only pronounce the sentence of the majority of judges. To discharge this important though burdensome office, an annual list of ancient and respectable citizens was formed by the prætor. After many constitutional struggles they were chosen in equal numbers from the senate, the equestrian order, and the people; four hundred and fifty were appointed for single questions, and the various rolls or _decuries_ of judges must have contained the names of some thousand Romans who represented the judicial authority of the State. In each particular cause a sufficient number was drawn from the urn; their integrity was guarded by an oath; the mode of ballot secured their independence; the suspicion of partiality was removed by the mutual challenges of the accuser and defendant; and the judges of Milo, by the retrenchment of fifteen on each side, were reduced to fifty-one voices or tablets of acquittal, of condemnation, or of favorable doubt.[39]