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postulatio
Rom. civ. law. The name given to the first act in a criminal proceeding. A person who wished to accuse another of a crime, appeared before the praetor and asked his authority for that purpose, designating the person intended. This act was called postulatio. The postulant (calumniam jurabat) made oath that he was not influenced by a spirit of calumny, but acted in good faith, with a view to the public interest. The praetor received this declaration, at, first made verbally, but afterwards in writing, and called a libel. The postulatio was posted lip in the forum, to give public notice of the names of the accuser and the accused. A second accuser sometimes appeared and went through the same formalities.
2. Other persons were allowed to appear and join the postulant or principal accuser. These were said postulare subscriptionem and were denominated subscriptores. Cic. in Caecil Divin. 15. But commonly such persons acted concurrently with the postulant, and inscribed, their names at the time he first appeared. Only one accuser, however, was allowed to act, and if the first inscribed did not desist in favor of the second, the right was determined, after discussion, by judges appointed for the purpose. Cic. in Verr. I. 6. The preliminary proceeding was called divinatio, and is well explained, in the oration of Cicero, entitled Divinatio. Bee Aulus Gellius, Att. Noct. lib. II. cap. 4.
3. The accuser having been determined in this manner, he appeared, before the praetor, and formally charged the accused by name, specifying the crime. This was called nominis et criminis, delatio. The magistrate reduced it to writing, which was called inscriptio, and the accuser and his adjuncts, if any, signed it, subscribebant. This proceeding corresponds to the indictment of the common law.
4. If the accused appeared, the accuser formally charged him with the crime. If the accused confessed it, or stood mute, he was adjudged to pay the penalty. If he denied it, the inscriptio contained his answer, and he was then (in reatu) indicted, (as we should say) and was called reus, and a day was fixed, ordinarily after an interval of at least ten days, according to the nature of the case, for the appearance of the parties. In the case of Verres, Cicero obtained one hundred and ten days to prepare his proofs, although he accomplished it in fifty days, and renounced, as he might do, the advantage of the remainder of the time allowed him.
5. At the day appointed for the trial the accuser and his adjuncts or colleagues, the accused, and the judges, were summoned by the herald of the preator. If the accuser did not appear, the' case was erased from the roll. If the accused made default he was condemned. If both parties appeared, a jury was drawn by the praetor or judex questionis. The jury were called jurati homines, and the drawing of them sortitio, and they were taken from a general list made out for the year. Either party had a right to object to a certain extent to the persons drawn, and then there was a second drawing called subsortitio, to complete the number.
6. In some tribunals (quaestiones) the jury were (editi) produced in equal number by the accuser and the accused, and sometimes by the accuser alone, who were objected to or challenged in different ways, according to the nature of the case. The number of the jury also varied according to the. tribunal, (quaestio) they were sworn before the trial began. Hence they were called jurati.
7. The accusers ana often the subscriptores were heard, and afterwards the accused, either by himself or by his advocates, of whom he commonly had several. The witnesses, who swore by Jupiter, gave their testimony after the discussions or during the progress of the pleadings of the accuser. In some cases it was necessary to plead the cause on the third day following the first hearing, which was called comperendinatio.
8. After the pleadings were concluded the praetor or the judex quastionis distributed tablets to the jury, upon which each wrote secretly, either the letter A (absolvo) or the letter C, (condemno) or N. L. (non liquet.) These tablets were deposited in an urn. The president assorted and counted the tablets. If the majority were for acquitting the accused, the magistrate declared it by the words fecisse non videtur, and by the words fecisse videtur if the majority were for a conviction. If the tablets marked N. L. were so many as to prevent an absolute majority for a conviction or acquittal, the cause was put off for more ample information, ampliatio, which the preator declared by the word amplies. Such in brief was the course of proceedings before the quaestiones perpeduae.
9. The forms observed in the comitia centiniata and comitia tributa were nearly the same, except the composition of the tribunal, and the mode of declaring the vote.
10. It is easy to perceive in this account of a criminal action, the germ of the proceedings on an indictment at common law.
Source : Bouvier 1856
Language : English