ABSTRACT
When Augustus founded the Principate in 27 BC he created the conditions for as profound a change in criminal justice as in any other sphere of government and society. The cognitio extraordinaria1 was designed to ‘liberate’ criminal trials from the shackles of the ordo iudiciorum publicorum, that is, from the limitations of the jury-courts. The new-found freedom was expressed in the assumption of a free discretion both in the definitions of crimes and in the scale of punishments. Acts not encompassed by the public criminal laws could be made justiciable, and the poena legis for any given crime could be mitigated or intensified in the discretion of the sentencing authority-or of its superior.2 But the link with the public criminal laws was never broken completely. No matter how radical the changes, crimes continued to be classified under the established heads making up the ordo iudiciorum publicorum.3 Even punishments were referred to those heads; despite far-reaching changes in the punitive system as class differentials took hold, the jurists continued to list the poena legis alongside the later modifications.4 This suggests that right up to the end of the Principate the modifications had not yet acquired an invariability that would have made them, in effect, a new poena legis.5
