A due process in Rome?

taking a look at the Conjuration of Catilina and in defense of Milan

Abstract

This article, which presents the first steps of our approach to the judicial process in ancient Rome, focuses on how procedural norms are presented in selected speeches by Marcus Tullius Cicero (106-43 BC). In the research, I seek to investigate to what extent and, if so, in what way the concept of due process — registered ipsis litteris since the 14th century in England (VI­TORELLI 2019) and today enshrined as a fundamental right in the Brazilian Federal Constitution (art. 5o., LIV) — would be evoked (albeit avant la lettre) in the last century of the Roman Re­public. The first works by Cicero to be appreciated are the Catilinarians (Orationes in Catilinam I-IV, 63 BC), consular speeches that both led to the condemnation of Roman citizens to capital punishment and, later, to Cicero’s exile. In the second Ciceronian work addressed, In defense of Milan (Pro Milone, 52 BC), when acting as a defense lawyer, Cicero manifests strangeness re­garding the use of extraordinary rites in the process. References to these and other procedural aspects in the works of Ciceronian oratory in question will be briefly compared with excerpts from ancient historiography — with emphasis on the work The Conjuration of Catilina (Bellum Catilinae) by Sallust (86 BC - 34 BC) and the exegetical commentary of the grammarian Asca­nius (3rd century AD) to the text of Pro Milone. As a result, on the one hand, the arguments of Ciceronian works and other ancient texts analyzed allow us to note that, mutatis mutandis, im­portant notions that today characterize due process are implied in the texts. Namely, there was an expectation that the legality and precedence of the law to be applied would be respected, as well as impersonality (versus the priuilegium) and even the right to adversarial proceedings. On the other hand, it was expected that the creation of exception precedents to procedural rules would be rejected.