We frequently introduce “character witnesses” in our trials. The Romans
went still further. A Roman defendant brought with him to the court as
many prominent friends (_advocati_) as he could to make a favorable
impression on the jury. In important cases today in America, although
attorneys for the prosecution and defence sometimes give the jury brief
outlines of the case before the evidence is presented, their formal
pleas are not made until the evidence is in. Our method is inductive.
Formal pleas were usually made in a Roman court before the testimony
was given. Much can be said for the Roman plan. Having the analyses
of the case, as presented by the prosecution and defence, clearly in
mind, the average juryman is perhaps better qualified to decide which
theory is made more probable by the facts in the case and is in a
better position to pick out the salient facts than he is when dealing
with heterogeneous bits of evidence. The same looseness of procedure
which characterized the meetings of the Roman Senate is found in the
courts.[20] The jury was not under careful surveillance; demonstrations
of approval and disapproval occurred, violent discussions were not
always stopped, the rules of evidence were less strict than they are
with us, and technicalities played a less important part. In some of
these particulars Continental courts have inherited Roman practices
more fully than Anglo-Saxon courts have. In consequence of their
elimination of technicalities, the Romans brought important criminal
cases to an end much more quickly than we do, and justice was cheaper
than it is with us. In Anglo-Saxon courts hearsay evidence, the
opinions of witnesses, and facts irrelevant to the issue are excluded
by the presiding judge. These rules of evidence were not applied in
Roman courts, and when the Continental countries reintroduced the jury
system, they went back to the Roman practices in this matter, as we
noticed a few years ago in the famous trial at Viterbo.
6. CONCEPTION OF CITIZENSHIP
_i._ IN TIMES OF PEACE
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