postulatio

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 Vern. 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 
praetor. 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 and 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 praetor declared by the word implies. 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.