POSTULATIO

1 definition found

From Bouvier's Law Dictionary, Revised 6th Ed (1856) [bouvier]:

  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.