'wll Haui &t\\ou[ Hihranj Cornell University Library KJA3340.S89 1912 v.1 Problems of the Roman criminal law / 3 1924 021 166 925 Cornell University Library & The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021166925 PROBLEMS OF THE ROMAN CRIMINAL LAW BY JAMES LEIGH STRACHAN-DAVIDSON MASTER OF BALLIOL COLLEGE, OXFORD AND JOWETT FELLOW IN TWO VOLUMES VOLUME I OXFORD AT THE CLARENDON PRESS MDCCCCXII HENRY FRONDE, M.A. PUBLISHER TO THE UNIVERSITY OF OXFORD LONDON, EDINBURGH, NEW YORK TORONTO AND MELBOURNE iJpMEMORIAM A. H. J. GREENIDGE RERVM ROMANARVM PERITISSIMI MORTE PRAEMATVRA ABREPTI PREFACE This book has developed out of a criticism of Mommsen's Rbmisches Strafrecht, published in the English. Historical Review for April 1902. Paragraphs from that article are by the kind permission of the Editor embedded in these pages. I ventured at the time to prophesy that future workers in the field would necessarily take Mommsen's great treatise as the foundation of their labours. As my work progressed, I have found this more and more true in my own case,, and I should wish my book to be regarded as, in the main, a supplement to Mommsen. In the first place the presence of Mommsen's Strafrecht absolves me from the task of attempting a complete and systematic account of the Roman Criminal Law ; and I am thus enabled to concen- trate attention on certain definite problems and difficulties, lying thickly along the main lines of the subject, which seem to call urgently for solution ; in dealing with these, however, I have endeavoured to indicate something of a continuous thread of principle and development. In the second place, the narrowing of the field enables me to attempt that which Mommsen declared impossible for himself in the span of life allotted to him, namely, to discuss the arguments and opinions of modern scholars on the various questions in dispute. Besides criticizing the doctrines of Mommsen himself, I have passed in review some of those of Danz, Geib, Girard, Greenidge, Ihering, Madvig, Maine, Rein, Wlassak, and Zumpt, and frequent quotations from these writers find VI PREFACE their place in my book. The names of many others will be mentioned in due course. The critical method may seem to be contentious, but it is difficult in any other way fairly to present the questions at issue. It must be remembered likewise that the matters in which I have ventured to differ from these eminent scholars are necessarily brought into prominence, and that they show out before a background of general agreement. This is notably the case whenever I find myself disputing with Mommsen. His authority is so great that his pronouncements can hardly ever be passed over in silence, and I have felt bound to express in each case either concurrence or dissent. I have something of the same feeling towards Girard and Greenidge. Two excellent criticisms of Mommsen's Strafrecht have been published, one by Esmein in the Nouvette Revue His- torique (1902), the other by Hitzig in the Schweizerische Zeitschrift fiir Strafrecht, Revue Pe'nale Suisse (1900) ; from these I have gathered many valuable hints. I must, how- ever, confess a certain disappointment at the small amount of interest which seems to have been taken in Mommsen's great work by jurists and historians. The learned periodi- cals cordially greeted the appearance of the book and in some cases published good summaries of its contents, but so far as I am aware they have not, except in the two instances named above, attempted any detailed criticism. In one instance, however, Mommsen has been treated with the respect of which he is worthy, that is to say by Girard in his Organisations Judiciaires, which, so far as it has yet gone, supplies an admirable commentary on the Strafrecht. I con- sider myself unfortunate in the circumstance that Girard's first volume appeared simultaneously with my own review of Mommsen, and that I thus committed myself in print to some opinions on the earlier period which I have seen reason PREFACE Vll to modify in the present book after studying Girard's work. The same would very likely be the case in my discussion of the more numerous and interesting problems of the next age of the Roman Criminal Law, if I could see how they are to be treated by Girard ; but my book goes to press without my having the advantage of consulting the second volume of the Organisations Judiciaires, for which scholars are still waiting. For another opportunity missed I have myself to blame. Until the publication in the present year of Girard's Melanges de Droit Romain I was ignorant of the long and instructive controversy between himself, Wlassak, and Lenel respecting the Lex Aebutia, which ought to have been noticed in my fourth and fifth chapters. The first number of the Journal of Roman Studies contains an article on ' Some questions of Roman Public Law ', by Professor J. S. Reid, of Cambridge. This paper, likewise, has come into my hands too late for me to make use of it in the text. I am glad to find myself in agreement with Professor Reid on several points discussed in the following pages. Finally, I would record my thanks for the valuable assistance supplied me by friends who have read portions of my book in proof, or have given information and criticism on individual difficulties. I must mention more especially A. C. Clark, Fellow of Queen's College, Oxford, Professor A. V. Dicey, Fellow of All Souls College, E. N. A. Finlay, Scholar of Balliol, W. Warde Fowler, Fellow of Lincoln College, W. M. Geldart, Professor of English Law, and H. Goudy, Professor of Civil Law, both Fellows of All Souls, Professor Haverfield, Fellow of Brasenose, E. Hilliard, Fellow of Balliol, Andrew Lang, late Fellow of Merton, J. B. Moyle, Fellow of New College, H. J. Roby, late Fellow V1U PREFACE of St. John's College, Cambridge, and Professor Vinogradoff, Fellow of Corpus Christi College, Oxford. Death has deprived me, since I commenced this task, of the aid of two Oxford friends, to whom I should have looked with confidence for sympathetic interest and counsel, Professor Henry Pelham, President of Trinity College, and A. H. J. Greenidge, Fellow of St. John's College. I have to thank Walter Gibson of Balliol College for welcome assistance throughout the Index, of which the Second and Third Parts are almost entirely his work. I have likewise to express my acknowledgements to the authorities of the University Press for their patience and indulgence in the matter of revises and corrections in the course of the printing. J. L. STRACHAN-DAVIDSON. Balliol College, Oxford April, 1912 TABLE OF CONTENTS VOLUME I pages Preface v-viii List of Problems discussed .... xi-xxi Chapter I. Religion as a Source of Law 1-27 Chapter II. Criminal Law and the Family 28-35 Chapter III. . Self-help as a Source of Law 36-45 Chapter IV. The Legis Actio Sacramenti 46-66 Chapter V. The Formulary System .... 67-84 Appendix to Chapter V. EXHERISION OF A SON ..... 85-95 Chapter VI. The Magistrate as a Criminal Judge . 96-114 Chapter VII. The Jurisdiction of the Magistrate outside the Walls 1 15-126 Chapter VIII. Appeal to the People . 127-145 Appendix to Chapter VIII. Provocatio in Lex Acilia .... 146-151 Chapter IX. Capital Trials before the People 152-169 X CONTENTS PAGES Chapter X. Jurisdiction in case of Pecuniary Penalties 170-187 Chapter XI. The Trial of Caius Rabirius . . . 188-204 Chapter XII. The Rudiments of Trial by Jury . . 205-224 Chapter XIII. Trials by Special Commission, and the Senatus Consultum Ultimum .... 225-245 VOLUME II Chapter XIV. Jury Trials for Extortion .... Chapter XV. Capital Trials before Jury Courts Chapter XVI. Mommsen's Theory of Exilium under Sulla's Laws Chapter XVII. The Jurors Chapter XVIII. Procedure in Trials before Juries Chapter XIX. Criminal Courts under the Principate Chapter XX. Appeals under the Principate Index I. Subject-Matter . II. Ancient Authorities . III. Modern Authorities 1-15 16-50 51-74 75-1" 112-152 153-175 176-217 219-287 221-246 247-282 283-287 LIST OF PROBLEMS DISCUSSED IN THIS BOOK VOLUME I Chapter I (Religion as a Source of Law) . Vol. I, pp. 1-27 Is the death-punishment a human sacrifice ? . pp. 1-3 and pp. 5-9 Is sacratio merely a threat of capital punishment, following on a legal trial and conviction ? (Mommsen) p. 6 and pp. 17-19 Do 8vpa and dveadai applied to the homo sacer mean public execution ? pp. 5, 6 or — Is the homo sacer devoted to the vengeance of Heaven and so liable to be killed by any one ? . . . p. 7 seq. What is the parallel between the homo sacer and the sacrificial beast ? pp. 8, 9 To what cases was outlawry by sacratio specially applicable ? p. 10 seq. Were the tribunes empowered to execute without appeal the man who has incurred sacratio ? . . . . pp. 14-17 Did the Lex Valeria authorize tyrannicide ? . . pp. 17-19 What is the difference between the sacratio and the oath of vengeance ? p. 18 n. 2 Does the transgressor of international law, surrendered to the enemy but refused by them, forfeit life or citizenship ? pp. 19-21 What is the derivation and early meaning of ' parricida ' ? p. 22 Is the death of the parricide in the sack the survival of the ancient punishment for all murderers ? (Mommsen) . p. 22 Or is it a procuratio prodigii ? (Brunnenmeister) . . . p. 24 What is the meaning of sanguineae virgae ? . . . p. 25 n. 3 How does the division between spiritual and secular author- ity arise ? pp. 25-27 Chapter II (Criminal Law and the Family) . Vol. I, pp. 28-35 Is the power of the king to punish derived from that of the paterfamilias? pp. 28, 29 Is the Roman monarchy patriarchal ? p. 29 Were the Vestal Virgins in the patria potestas of the pontiff? pp. 29-32 Xll LIST OF PROBLEMS DISCUSSED IN THIS BOOK By what right does the pontiff scourge to death without appeal the paramour of the Vestal ? p. 30 Is the tutela gentilium over women equivalent to patria pote- stas} PP- 33, 34 Why are criminous women handed over for punishment to cognati and propinqui? pp. 32-35 Chapter III (Self-help as a Source of Law) . Vol. I, pp. 36-45 How does self-help lead to magisterial intervention ? . . p. 37 Is the trial of delicto, under the forms of private action a portion of the criminal law ? (Mommsen) . pp. 39, 40 What are the characteristics of the private criminal law ? . p. 40 How does it develope out of revenge ? . . . pp. 41-45 Does the magistrate assist the injured man to exact ven- geance ? .. pp. 43, 44 Chapter IV (The Legis Actio Sacramenti) . Vol. I, pp. 46-66 Is the sacramentum an oath by which each party to a suit affirmed the righteousness of his plea ? (Danz) . pp. 46 seq. Could such an oath involve the community in guilt ? . . p. 48 Does the civil jurisdiction of the king arise out of his criminal jurisdiction in the matter of a false oath ? (Girard) p. 48 Is the sacrifice of a beast always the substitute for the sacri- fice of a man ? pp. 49-51 What is the interpretation of the fragment of Cato in Festus' article sacramento ? pp. 52-54 Were the functions of triumviri capitales judicial or executive ? P- 53 n- 1 Is the phrase ' actio sacramenti ' earlier or later than the legal wager? PP- 55, 59 How are we to understand the Homeric trial-scene ? . p. 59 Does sacramentum always mean ' oath ', or does it sometimes mean ' animals destined for sacrifice ' ? . . pp. 58, 60 Is the magistrate properly said judicare ? pp. 61, 62 and p. 76 n. 3 Was there any law (prior to the Twelve Tables) which compelled the magistrate to refer questions to a private judex ? or did the change from judicare to judicari jubere develope from custom ? pp. 62, 63 Are the functions of the praetor only automatic ? pp. 64-66 Chapter V (The Formulary System) . . . Vol. I, pp. 67-84 Has the praetor any voice in the selection of the judex ? pp. 67, 68 What was effected by the Lex Aebutia ? . . . pp. 69, 70 LIST OF PROBLEMS DISCUSSED IN THIS BOOK xiH Was the procedure by formula substituted once for all for the ' legis actiones ' or did the two exist side by side ? . p. 71 and below p. 210 How did the authority of the praetor's edict develope? . p- 72 What is the distinction between proceedings in jure and in judicio ? Are the two essentially opposed to one another ? p. 76 with p. 62 above Why is the verdict of the juror not liable to appeal? . . p. 74 How far are recorded decisions of the Courts a source of law at Rome ? pp. 78 seq. What is meant by Justinian's edict against case-law ? . p. 79 What are the defects of case-law ? and how did the Romans meet them ? pp. 80-84 Appendix to Chapter V (Exherision of a Son) Vol. I, pp. 85-95 Was express exheredatio of sui necessary under the Law of the Twelve Tables and previously ? . . . . pp. 86, 92 Had the filiusfamilias a condominium in his father's life- time ? p. 87 Under what circumstances does the birth of a postumus ' break ' a Will ? pp. 88, 93 What is the sense of ' ceteri exheredes sunto ' ? . . pp. 90, 92 Was this phrase used by the testator in the case of the soldier-son ? p. 90 Chapter VI (The Magistrate as Criminal Judge) Vol. I, pp. 96-114 What is the place of the magistrate in criminal jurisdiction ? p. 96 What is the relation of judicatio and coercitto ? . . pp. 97-100 What is the meaning of imperium militiae, gladii potesias, im- perium merum ? pp. 100-103. See also below, Vol. II pp. 166-169 Does the public criminal law begin only with the Valerian law ? pp. 103, 104 What was the nature of the earliest judicial inquiries ? . p. 104 What crimes are recognized as capital in the Twelve Tables? p. 107 Do they include bribery at elections ? p. 106 Or lampooning ? What is malum carmen ? . . p. 107 n. 3 Is the proceeding by magistrate and comitia applicable only where a previous law has been broken ? (Mommsen) pp. 105, 106 What was the procedure in case of a new crime ? . -p. 108 Are the several magistrates legally limited in the species of crime with which they deal ? p. 108 What is the verberare forbidden in the Valerian law ? p. no n. 1 What are the limits of magisterial coerciHot . . p. 109 XIV LIST OF PROBLEMS DISCUSSED IN THIS BOOK On what occasions are these limits overstepped ? , p. no seq. How are we to account for the case of Matienus, and other similar ones ? p. in seq. What is the function of the tribunate in regulating such cases? p- 112 What are the consequences of the doctrine of magisterial jurisdiction on the severity of the Roman criminal law? p. 114 Chapter VII (The Jurisdiction of the Magistrate outside the Walls) Vol. I, pp. 115-126 Was a Latin under the later Republic liable to be scourged and beheaded? p. 116 Was a Roman legally protected from such punishment out- side Rome ? p. 115 seq. Did Verres break any positive law when he crucified a Roman citizen ? pp. 118, 119 How do we account for the centurion's vine-stock ? . . p. 119 What is the explanation of the action of Scaevola, of Crassus, of Quintus Cicero, and of Galba ? . . . . pp. 121-124 To what date are we to attribute the immunity of Roman Citizens ? ........ pp. 124-126 Chapter VIII (Appeal to the People) . Vol. I, pp. 127-145 By what process does the People judge in cases of life and death ? . p. 127 seq. Is it by a sentence in judicio authorized by a mandate of the magistrate acting injure! (Zumpt) . pp. 128-131 and p. 138 Or is it by a Bill of pains and penalties directed against the offender in each case ? (Maine) .... p. 131 seq. Or is the preliminary always a condemnation by a magis- trate, from which the prisoner appeals to the People for pardon ? (Mommsen) pp. 133-137 What conclusions are to be drawn from Cicero's account of crimmaljurisdictioninthed?Z,«g?'&«s? pp. 135, 136 and p. 141 n.i What is the significance in criminal trials of the phrases provocare, certare, perduellionem judicare ? . . pp. 134-136 What are the various senses of ' injussu populi ' ? . p. 139 n. 1 What happens if the People fail to pronounce, or if the prisoner fail to say provoco } pp. 138-140 Was provocatio allowed to women ? .... pp. 141-143 In what sense was there provocatio from the King ? . p. 144 n. 1 What was the sanction of the lex Valeria ? . • . p. 144 What is the significance of the removal of the axe from the fasces ? p> I45 LIST OF PROBLEMS DISCUSSED IN THIS BOOK XV Appendix to Chapter VIII (Provocatio in Lex Acilia) Vol. I, pp. J46-151 Was provocatio offered as a reward to the provincial accuser under the lex Acilia if he declined the Roman citizen- ship? or was this alternative confined to the Latins ? p. 146 seq. Was the attainment of the Roman citizenship by magistrates a privilege of all Latin towns or only of the later Latin colonies ? pp. 150, 151 Chapter IX (Capital Trials before the People) Vol. I, pp. 152-169 Are consuls and praetors forbidden by law to pronounce sentences liable to appeal, or do they only refrain by custom from so doing ? p. 152 Was a special decree of the People required to constitute duumviri perduellionis ? p. 153 Were they elected or nominated ? p. 153 How are quaestors and tribunes enabled to preside at the comitia centuriata ? p. 157 How are we to interpret 'dum aut ad praetorem aut ad con- sulem mittas auspicium petitum ' ? . . . p. 158 Does the magistrate consult the Senate before putting the question to the People at a criminal trial ? p. 159 What is the cause of the disappearance of the death penalty ? pp. 160-164 What is the explanation of cases of prolonged imprison- ment ? pp. 164, 165 How are we to understand Caesar's sententia on the Catilina- rians ? pp. 165, 166 What was done with the ' common malefactor ' at Rome ? p. 167 seq. Chapter X (Jurisdiction in case of Pecuniary Penal- ties) * Vol. I, pp. 170-187 What is the meaning of multa maxima or suprema ? pp. 170-172 Why do the superior magistrates never inflict a fine above this limit ? p. 173 Is there any value in the distinction between multa dicta and multa irrogata ? PP- 174-177 What is the meaning of irrogare multam ? . . pp. 175-177 What is the import of the two methods of procedure indicated by Papinian's distinction between poena and multa) pp. 179-182 How are these words used in practice ? . pp. 179 n. 4 and 181 What is the meaning of in sacrum judicar el . . . p. 182 What is the history of consecratio bonorum ? . . pp. 183-185 Why was its employment by the tribunes ineffectual ? pp. 186-187 1H0 b XVi LIST OF PROBLEMS DISCUSSED IN THIS BOOK Chapter XI (The Trial of Caius Rabirius) . Vol I, pp. 188-204 On what occasion was Cicero's extant speech Pro Rabirio delivered ? P- 189 seq. Was it before or after Metellus struck the flag on the Janicu- lum? PP- 192-194 What does Cicero mean by 'judicium perduellionis a me sub- latum'? pp. I92andi97 Was the multae irrogatio of Labienus subsequent to or parallel with the action of Caesar as duumvir ? . . . p. 198 Why did Caesar yield to Metellus' intervention ? . p. 201 seq. Chapter XII (The Rudiments of Trial by Jury) Vol. I, pp. 205-224 What is the function of a consilium ? . . . . pp. 205, 206 What is the meaning of Gaius' division of judicia into legitima and imperio continentia ? p. 207 Who are the arbitri of the Twelve Tables ? . . . p. 208 Who are the decemviri litibusjudicandis .'.... p. 209 What are the functions of the centumviril p. 210 (see above, p. 77) What devices were employed by the ancients to enable a foreigner to sue and be sued ? p. 211 How are recuperatoria judicia used for this purpose ? . p. 212 What is the connection between recuperatoria judicia and testimonii denuntiatio ? p. 213 What were the advantages of recuperatoria judicia ? pp. 214, 215 Did the system arise in the court of the praetor peregrinus and spread to that of the praetor urbanus ? pp. 216-218 and p. 223 How were recuperatores used in the civil actio injuria- rum ? pp. 218-220 What change did Sulla make in this matter ? . . p. 220 To what extent do recuperatoria judicia prevail in the Muni- cipia ? pp. 22i, 222 Were they ever employed in an actio furti? . . pp. 222, 223 What is their connection with cases of repetundae ? . p. 224 Chapter XIII (Trials by Special Commission, and the Senatus Consultum Ultimum) . . . Vol. I, pp. 225-245 On what occasions did Special Commissions exercise Capital jurisdiction in the Middle Republic ? . . . p. 226 seq. What are the distinguishing features of these quaestiones ? pp. 229, 230, 236 Should a distinction be drawn according as the quaesitor is or is not bound by the vote of his consilium ? . pp. 232 and 238 Is Mommsen right in bringing these State Trials into the same category as the proceedings under the Senatus Consultum Ultimum ? . . pp. 232 and 237 and 240 seq. LIST OF PROBLEMS DISCUSSED IN THIS BOOK xvii How are we to analyse the case of the Bacchanalians ? Were they allowed appeal ? p. 232 seq. Had the Senate the right to institute such Commissions with- out a decree of the People ? . . . pp. 235, 236, 239, 240 What alterations were made by the Law of Caius Gracchus ? pp. 240, 244 What is the nature of the Senatus Consultum Ultimum ? pp. 240-245 When was it first employed ? p. 241 How does it avoid traversing the law of Caius Gracchus ? p. 240 seq. VOLUME II Chapter XIV (Jury Trials for Extortion) . Vol. II, pp. 1-15 Why did the proconsuls of Spain condemned for repetundae in 172 b. c. go into exile ? pp. 2-4 Is a trial for repetundae under the lex Calpurnia of 149 b. c. ' a private suit with a sharpened process ' ? (Mommsen) pp. 5 and 17 n. 2 What is the title and date of the lex repetundarum, the fragments of which are extant ? p. 6 What matters may be included in the litis aestimatio for re- petundae ? pp. 8, 9 Were any penalties, other than pecuniary, attached to con- demnation for repetundae ? pp. 10-12 Did persons condemned for repetundae habitually betake themselves to exilium ? pp. 11, 15 Was this the necessary result of condemnation ? . pp. 13, 14 Chapter XV (Capital Trials before Jury Courts) Vol. II, pp. 16-50 Is a jury court a ' Committee of the Legislature ' ' exercising all powers which that body was in the habit of exercising ' ? (Maine) p. 16 Do the jury courts exercise any discretion in the penalty awarded ? . . . . p. 17. See also above, p. 8 n. 4 Are the powers of a jury court limited by those of the assem- bly which has appointed it ? (Maine and Beesly) . p. 18 Does such limitation account for the disappearance of the death penalty ? PP- 18, 19 What change in respect of the infliction of death is effected by the substitution of jury courts for comitial trials ? pp. 20, 24 What jury courts existed before Sulla, and what were estab- lished by the leges Corneliae ? pp. 20-22 What is the ' poena legis Corneliae ' ? p. 23 XV111 LIST OF PROBLEMS DISCUSSED IN THIS BOOK What is exilium ? Does Cicero's account of it in the pro Caecina hold good only for the period before Sulla ? . pp. 24-29 What is the meaning of aquae et ignis interdictio ? . p. 30 seq. Is it equivalent to proscriptio and sacratio capitis ? . pp. 31-33 Did the sentence of aquae et ignis interdictio admit of degrees of efficacy? PP- 33-35 How are we to account for the presence in Italy of Pompeius Rufus and Oppianicus ? . . . p. 35 seq. and below p. 69 What was the local limit of interdictio ? pp. 35, 37 What is the difference in the effect of aquae et ignis interdictio, according as the interdictus has or has not become the member of another State ? . . . p. 39 and below p. 54 How did Sulla connect the aquae et ignis interdictio with the verdict of a jury ? p. 40 seq. What is the difference in legality between an absolute and a conditional sentence ? pp. 41, 42 Did the People by the lex Fufia in 61 b. c. pass against Clodius a sentence of death by interdictio, but conditional on the finding of a jury ? .... pp. 41 and 44 And similarly on Caesar's rogatio in 46 b. c. against all whom a jury should find guilty of vis or majestas ? . . . p. 48 Why is subsequent appeal to the people barred in such cases ? pp. 48, 49 What is the analogy between such trials and the civil suits under the formulary system ? and what is the part played in them respectively by the People, the president of the Court, and the jurors ? P- 43 seq. From what sources are the various features of the jury-trials borrowed ? pp. 49, 50 Chapter XVI (Mommsen's Theory of Exilium under Sulla's Laws) Vol. II, pp. 51-74 Is interdictio truly described as a death sentence ? . pp. 51, 52 How may a man shelter himself from the execution of a Roman sentence ? p. 52 Does the interdictus cease to be a Roman ? pp. 53-55 and 68 seq. What changes in the effects of interdictio were introduced by the emperor Tiberius ? pp. 55-58 Why cannot the deportatus make a Will ? . . . . p. 58 Does the significance of solum vertere exilii causa remain unchanged down to the time of Tiberius? . . pp. 56, 60 Is exilium under Sulla's law merely relegatio ? (Mommsen) pp. 61-65 Is there any contradiction between the accounts of exilium given by Polybius and Sallust ? . ... pp. 61-64 LIST OF PROBLEMS DISCUSSED IN THIS BOOK xix What is the opposition between interdictio and relegatio ? pp. 67-69 Did Oppianicus become an exul ? pp. 69, 70 How are we to explain the disqualification for office of con- demned men in the lex Julia Municipalise . . pp. 70-72 Is the evidence conclusive against Mommsen's theory about Sulla's changes ? pp. 73, 74 Chapter XVII (The Jurors) ...- Vol. II, pp. 75-111 What was the number of names on the album under Aurelius Cotta's Law ? pp. 75, 76 How are we to disentangle the conflicting accounts of our authorities as to the jury-laws of Caius Gracchus, of Caepio, and of Livius Drusus? .... pp. 76-81 Can regulations respecting the juries find a place in laws dealing with particular offences, or are they always in separate leges judtciariae? pp. 81-83 Was there before Sulla any general album from which jurors to try all offences must be taken ? . . pp. 83, 84, 109 Who are the Gracchani judices ? p. 85 seq. Is the treatise of Quintus Cicero de Petitione Consulatus genuine ? p. 89 In what senses is the phrase equester ordo used ? . pp. 85-89, 94 How are the equiles Romani to be distinguished from the tribuni aerarii in Cotta's Law ? pp. 90-93 What is the number of jurors in individual trials ? . . p. 97 What are the various methods of empanelling juries ? p. 98 seq. What is the meaning of edititius judex 1 . . . p. 98 n. a What were the arrangements for challenge at Verres' trial I pp. 99-101 How was the jury selected in the trial of Roscius of Ameria ? p. 102 Does the method of selection described in pro Plancio, 17. 41, and in the Bobiensian scholia on the passage, refer to the period between Glaucia and Sulla or to the proposals of Servius Sulpicius Rufus in 63 b. c. ? . . . pp. 103-108 What is meant by ' non ex delectis judicibus ' ? . . pp. 105, 109 What were the provisions of the lex Licinia de Sodaliciisl p. 108 seq. How were juries empanelled in Pompey's sole consulship ? p. in Chapter XVIII (Procedure in Trials before Juries) Vol. II, pp. 112-152 What are the main features of the ' accusatorial ' as opposed to the ' inquisitorial ' procedure ? . p. 112, with pp. 164, 165 What was the order of speeches and of examination of wit- nesses in a Roman court ? pp. 113, 114 XX LIST OF PROBLEMS DISCUSSED IN THIS BOOK What is the difference between Roman and English proce- dure regarding the evidence of absent witnesses? pp. 115-118 What is the relative importance of the witnesses and the reputation of the prisoner ? pp. 119-121 Had the Romans any ' Law of Evidence ' ? . . p. 121 seq. What evidence, admissible at Rome, would be excluded by the English practice ? pp. 121-124 How is the exclusion of evidence conditioned by the functions assigned to the President of the Court ? ... p. 125 Under what conditions was the evidence of slaves admitted ? pp. 126-128 What is the meaning of ire in consilium ? p. 128, with p. 46 (above) What is the effect of neutral votes, non liquere and sine suffragiot pp. 129-134 Why are the votes of the three orders unequal in the trials in Pompey's sole consulship ? p. 135 Did the presiding magistrate vote as one of the jurors ? . p. 136 What are the penalties for praevaricatio and calumnia ? pp. 137-139 Did the lex Remmia prescribe branding ? pp. 140-142 What courts tried cases of murder and other serious crime committed by Roman citizens in the municipia ? . pp. 142-152 Chapter XIX (Criminal Courts under the Principate) Vol. II, pp. 153-175 What is the nature of the evidence supplied by the Digest and the Codes ? pp. 153-156 How did the jury-system disappear ? . . . . pp. 156-158 What is the history of cognitio ? p. 159 What is the procedure extra ordinem under the Principate ? pp. 160-161 In what respects does criminal justice become more elastic under the Principate ? p. 161 What are crimina publico, and crimina extraordinaria ? . p. 162 What is stellionatus ? p. 163 How far does the 'accusatorial' disappear before the 'in- quisitorial ' procedure ? pp. 164, 165 What is the jus gladii and how is it conferred? . . pp. 166-169 What is the distinction in the matter of liability to punishments between honestiores and humiliores ? . . . pp. 170-175 What are the privileges of decurionest . . pp. 171, 172 and 175 Chapter XX (Appeals under the Principate) Vol. II, pp. 176-217 How did provocatio come to be used as synonymous with appellatio ? p. 176 LIST OF PROBLEMS DISCUSSED IN THIS BOOK Xxi What is the importance of the distinction between appeals which quash and appeals which alter a sentence ? . p. 177 How are consultatio and supplicatio distinguished from appel- latio ? .... p. 178. See also below, p. 202 n. 1 What is the practice at different epochs with regard to the denial of the jurisdiction of provincial governors over senators ? pp. 179, 180 In what cases may the principle of the forum delicti be over- ridden ? p. 179 n. 2, and p. 180 In what cases must the emperor be consulted before sentence is passed ? p. 181 What exceptions are found to the principle that all capital cases admit of appeal ? pp. 182-184 How far are the rescripts of the emperor conclusive ? pp. 184, 185 What was done with prisoners pending appeal ? . pp. 187-189 What is the procedure in the personal hearing of appeals by the emperor ? pp. 189-191 To whom do the phrases auditorium sacrum, and sacra vice apply? pp. 192-194 Do they invest their possessors, especially the praefectus urbi, with inappellability ? p. 194 Is appeal or supplicatio allowed from the sentence of aprae/ec- tus praetoriot p. 195 seq. What is the meaning of ad comitatum nostrum ? . pp. 199, 200 And of praefectus praetorio qui est in comitatu nostro ? . p. 200 seq. What is the constitution of the appeal Court as finally estab- lished ? p. 202 How is the possibility of appeal affected by the political and military disorder of the later Empire ? . . pp. 203-205 What abuses prevailed in the law courts of this period ? pp. 205 and 209 seq. What is the nature of patrocinium, and what scandals arose from this practice ? pp. 211-216 How did the clergy interfere with the course of Justice? . p. 217 CHAPTER I RELIGION AS A SOURCE OF LAW The infliction of death, by public no less than by private vengeance, may once have been nothing more than the realization of the brutish instinct, ' hates any man the thing he would not kill ? ' But with growing reflection some further motive and justification comes to be demanded by the conscience of society, and this justification is some- times found in the doctrine that the execution is a sacrifice to an offended deity, whose wrath might otherwise fall on the whole community. It is a readily accepted article of primitive faith that the evil thing must be put away from amongst us, if the nation is to escape from being involved in guilt. Thus it was that the seven sons of Saul were delivered over to the Gibeonites, who ' hanged them up unto the Lord in Gibeah ', and ' after that God was entreated for the land ' * and the famine ceased. Religious obligation has thus in- sinuated itself to account for the infliction of punishment, and we reach the stage of which Girard 2 writes : ' At Rome the first executioner was a sacrificer : in old times there was no capital execution which was not performed in honour of some god.' This conception, though over-ridden by considerations more appropriate to civilized man, has left some traces on the later doctrine and practice of the Romans. So far as 1 2 Sam. xxi. 14. * Girard, Organisations Judiciaires, p. 33. Girard speaks of a com- paratively advanced and reflective people. Savages, such as the aborigines of Australia, have capital punishment, but are ignorant of. sacrifice. mo B it 2 LAW AND RELIGION CH. I know, there is only one instance in historical times of a normal execution being described as a sacrifice, that namely of the harvest-thief, who is ordered in the Twelve Tables ' Cereri suspensum necari '.* But the similar punish- ment ordained for Horatius 2 in case his appeal had failed leads one to conjecture that here too the notion of an offended deity was not wanting. Possibly the burning of the in- cendiary prescribed in the Twelve Tables 8 may likewise have been meant as an offering to the fire-god whose element had been misused ; but our texts contain no such reference, and it may be merely a case of the lex talionis. The presence of the axe as the death-dealing implement in the fasces of the magistrate seems to indicate beheading as, from the first, the prevailing method of execution. This method survived wherever the imperium was unfettered, as for the dictator and, outside the walls, for the consul; or again when the magisterial act of power was directed against unprivileged foreigners. All this seems to show that the axe was in old times the regular instrument of death. It is probably more than fancy which connects this weapon with the instrument by which sacrificial victims were in all ages of Roman society immolated before the altar. 4 There is a strange story in Dio Cassius' account of Caesar's dictatorship, which may serve, if not as proof of the theory, yet as showing that the human criminal might sometimes be offered up with the same solemnities as the brute victim — ' two men B were slain as victims with a kind of ritual ; 1 Bruns, Fontes Juris Romany, p. 31. 2 ' Infelici arbori reste suspendito,' Livy, I. 26. 6. 3 Bruns, Fontes 1 , p. 31. 1 Girard (Org. Jud., p. 34, n. 1) aptly quotes Floras' (Epit. I. 21) description of the execution of Roman envoys by the Illyrians, ' ne gladio quidem sed ut victimas securi percutiunt.' 6 Dio Cassius, XLIII. 24. 4. Mr. Warde Fowler has pointed out to I EXECUTION AND SACRIFICE 3 and the reason for this I cannot tell, for it was not pre- scribed by the Sibyl or any other such oracle ; anyhow, they were sacrificed on the Campus Martius by the pontiffs and the priest of Mars, and their heads were set on the Regia'. These were certainly criminals, and Mommsen's explanation — 'that this is without doubt a recurrence to an antique form of execution ' — may perhaps be accepted as the most probable solution. A further token of the religious obligation on which the criminal law rested may be found in the use of the famous word sandio to denote the penalty proposed for breaking a law ; this is evidently connected with sanctus, sacer, and sacratio. These last two words, however, sacer and sacratio, bring us within sight of a difficult problem. One would expect to find these words used in the closest con- nexion with the quasi-sacrificial execution by the axe. But, on the contrary, we find them over and over again in cases where there was no execution at all resembling a sacrifice. The most notable instances are from the pro- ceedings of tribunes who employ a method quite different. Our best authority, Festus, 1 when he attempts to define ' sacer homo ', gives a most perplexing utterance. On the one hand his description, ' sacer homo is est quem populus judicavit ob maleficium,' shows that there is no incon- me the curious parallelism of the details with those described in Festus ad voc. : 'October Equus appellabatur, qui in Campo Marti o mense Octobri immolabatur. De cujus capite magna erat contentio inter Suburanienses et Sacravienses, ut hi in Regiae pariete, illi ad turrim Mamiliam id figerent.' 1 Festus, a writer of the Antonine age, epitomized the work of Verrius Flaccus who lived in the time of Augustus, and was in turn epitomized by Paulus Diaconus some centuries later. All the infor- mation therefore which we gather from the fragments of Festus and Paulus really dates back to Verrius Flaccus, though of course it may have been somewhat contorted in the passage from hand to hand. B 2 4 LAW AND RELIGION CH. sistency between sacratio capitis and a proper criminal trial. As the words stand they would naturally point to the criminal regularly tried, condemned, and executed in the normal manner with the axe. But the next words, ' neque fas est eum immolari, sed qui occidit parricidii non damnatur,' lead us in quite another direction. We seem to have to do here with a man about whom the law does not trouble itself, whom it leaves to the casual vengeance of the public. Mommsen tries to get over the difficulty by supposing that the sentence before us represents the stretching of the conception of sacratio from the ' death-penalty executed in accordance with strict law by the magistrate of the com- munity, which alone possesses this " sacral " character ', to cover that which ' follows on the ordinances of the plebs, and which is treated merely as killing without liability to punish- ment '. Mommsen x adopts an interpretation, which seems to me untenable, of the words of Festus, ' neque fas est eum immolari, sed qui occidit parricidii non damnatur.' He sees in them an ' antithesis between the magisterial execution by way of immolatio, carried out according to fas, and the private and plebeian execution carried out by way of self- help without magisterial action '. Now such an antithesis between the action of the patrician and the plebeian magis- tracy did, no doubt, exist in fact at Rome, 2 but there is nothing of the sort in this passage. Mommsen apparently intends us to take ' neque fas est ' as part of the dependent relative sentence, and to translate ' a person who is con- demned, but whom under certain circumstances (the absence of a patrician magistrate) it is improper to sacrifice '. Ob- viously both sense and Latin compel us to take the words as part of the principal sentence, and to translate, ' not that 1 Mommsen, Strafrecht, p. 902, note 1. • See below, p. 13. I SACRATIO AND OUTLAWRY 5 it is lawful that he should be sacrificed, but any one who kills him is not guilty of murder.' * The intention of Festus, or of Verrius Flaccus, from whom he draws, clearly is to negative emphatically the shocking supposition which might seem to be conveyed by the word sacer, that a human sacrifice was actually contemplated. If my translation be correct, this passage does not advance us much. It leaves us still face to face with the question, Why was such an outlaw called sacer ? The same difficulty arises when we turn to the account of specific cases. Are we to understand that the criminal who removed boundary stones was publicly executed ? Festus (s.v. Termino) tells us that ' Numa Pompilius statuit eum, qui terminum exarasset, et ipsum et boves sacros esse '. One would think that the seizure and sacrifice of the oxen would be accomplished by some public authority after a judicial inquiry, and that the fate of the ploughman would be the same as that of his beasts. Yet in the parallel passage of Dionysius 2 we read : ' If any one destroyed or disturbed the boundary stones, Numa decreed that the criminal should be sacred to the God, so that whoever chose to kill him as a sacrilegious person should be unpunished and clean of any guilt.' In another passage 8 Dionysius speaks of the violator of the tie which binds patron and client : ' If any one were proved to 4 have committed such acts, he was liable under the law of treason passed by Romulus, and it was lawful for any one who pleased to kill the guilty man 4 as a sacrifice to the Jupiter of the nether 1 The sentence does not seem difficult, but it has puzzled the critics. Danz (Der sacrale Schutz im rdmischen Rechtsverkehr, p. 84) actually (reading immolare) wishes to translate ' it is not lawful for him to offer sacrifice '. * Dionysius Halicarnasensis, II. 74. " Ibid., II. 10. ' The words IKtyxBeit) and rbv a\6vra may perhaps be reconciled with the rest of the passage by the consideration that after the death 6 LAW AND RELIGION CH. world. For it is the custom of the Romans when they wish a man to be put to death with impunity, to dedicate his person to some one or other of the gods, and more especially to the infernal deities.' Here again we have the same difficulty as in the first passage quoted from Festus. If the criminal was to be a sacrifice (dv^a), why was he not pub- licly smitten with the axe ? Amongst other offenders, according to the tradition of Regal Law, we have the son who uses violence to his father : ' si parentem puer verberit, ast olle plorassit parens, puer divis parentum sacer estod ' ; 1 and the husband who sells his wife into slavery, and who is ordered by Romulus 0iW0ai 2 \6oviois OeoZs. Are we to understand this last of public execution ? or does Plutarch intend us to explain away 6iea-9ai as Dionysius explains away Ov^a ? In all these passages the ancient writers never seem to have made up their minds as to what they wish to present, whether a trial followed by magisterial execution, or popular vengeance invoked immediately on the crime. Mommsen, throughout his Strafrecht, insists that sacratio capitis is only a way of threatening capital punish- ment, and maintains that a trial and pronouncement by the magistrate was always necessary. This seems the logical correlative to the doctrine that every execution was a sacrifice, and therefore every criminal put to death a homo sacer. The theory is strongly supported by Festus' definition, ' quern populus judicavit ob maleficium.' 3 of the criminal the avenger might be called upon to prove to the satisfaction of a court of law that the guilt of his victim justified the slaying. See Plutarch, Poplicola, 12. I KreLvavra dc (povov Ka6apov liroirjaev, « irapatrxoiTO tov abiKJifxaros tovs i\eyxovs. 1 Festus, s.v. plorare. * Plutarch, Romulus, 22. 3. 8 I think that it is impossible to accept the interpretation of Lange ' de consecratione capitis et bonorum ' (Kleine Schriften,Vol. II, p. 1 14), that ' judicavit ' is to be taken of the vague informal verdict of public opinion. I THE HOMO SACER 7 Brunnenmeister, on the other hand, would exclude trial in a court of justice, and indeed any intervention of State authority. He holds that the simpler faith of antiquity would regard any anticipation of the divine vengeance as impious, and that man must not dare officiously to charge himself with what is the business of the gods. 1 In the same spirit Ihering lays stress on the passive attitude of the State in such cases. Punishment, according to him,f is ' no un- mixed evil, but has the effect of purifying the offender and reconciling him again with gods and men '. But the sacer homo is not any ordinary offender, but one who is by the very fact of his crime cut off from human society. He is not allowed even to expiate his guilt by suffering punishment ; ' the sword of justice would be sullied with his blood ; he stands outside the law to such a degree that not even the justicer will meddle with him.' He is to be shunned for fear of the contagion of guilt, 3 and ' avoided by all, unless indeed any one happens to think it a good deed to put him out of the world '. Much of this appears to me to be fanciful. I do not believe that the magistrate would have thought any offender too vile to taste the edge of the sword of justice, or would have felt any scruple about interfering with the will of 1 Brunnenmeister, Todtungsverbrechen,p. 152. Compare the senti- ment of Lucan (Pharsalia, III. 317): Non tamen auderet pietas humana vel armis Vel votis prodesse Jovi. 2 Ihering, Geist des romischen Rechts, Vol. I, p. 279. 8 Mr. Warde Fowler suggests that here, rather than in any primi- tive notions of sacrifice, we may perhaps find the point of contact between ' sacer ' and ' banned '. According to Robertson Smith (Religion of the Semites, pp. 431-434), 'holy' things, no less than ' unclean ' things, infect the meddler with mischief ; and so both are alike tabu, and contact with them must be avoided. This is a fascinating hypothesis, but I think, on the whole, that the explana- tions of Servius and Macrobius lead us in a safer direction. 8 LAW AND RELIGION CH. Heaven. But, on the other hand, I do not think that it is safe to neglect, as Mommsen does, the repeated assertion of our authorities, that the sacer homo is he who may be killed by any one with impunity. 1 Perhaps a reconciliation may be found in a curious dis- quisition of Macrobius. 2 Macrobius is indeed a late writer, belonging to the end of the fourth century ; but as he refers us for further information to the ' Religiones ' of Trebatius Testa, Cicero's lawyer friend, it may be presumed that the sentences which I am going to quote have a good pedigree. 'At this point it may not be inopportune to consider the condition of those men whom the laws order to be " sacred " to certain deities ; for I know well that some have thought it strange that while it is impious to violate other " sacred " things, a " sacred " man may law- fully be killed. The reason is this. The ancients allowed no sacred animal 3 to be on their lands, but drove them on to the lands of the Gods to whom they were consecrated ; and they judged that the souls of men " devoted " (whom the Greeks called fzanasf) were the due of the gods. Just then as the " sacred " thing could not be actually sent to the gods, yet men did not hesitate to send it away from themselves, so with the souls. Those which were sacred might be dispatched, so they thought, to the realms of the 1 Girard (Org. Jud., p. 29, note 1 ) rightly lays stress on the need for taking into account both the duty of the magistrate and that imposed on the private man. ' Macrobius, Sat. III. 7. 5. * That is an animal reserved and destined for sacrifice, for as Macrobius has said in a previous sentence : ' quidquid destinatum est dis, sacrum vocatur.' Compare Horace, Od. III. 23. 9: Nam quae nivali pascitur Algido Devota quercus inter et ilices, Aut crescit Albanis in herbis Victima pontificum secures Cervice tinget. I THE HOMO SACER 9 gods, and therefore they wished them to be stripped of their bodies and sent thither as soon as possible.' A comment by Servius on Virgil makes the fate of the escaped sacrificial beast still more parallel to that of the homo sacer, though he refers to the latter only by implica- tion. Sinon has escaped from the altar, and in prospect of being put to death by the Trojans, he utters the words : 1 ' Hoc Ithacus velit et magno mercentur Atridae.' Why, asks Servius, should the Greek kings so much desire this ? * Because,' is the answer, ' it is part of the sacred ordi- nances, that a victim which escapes should be killed wherever it is found, for fear that a cause of pollution should accrue.' The sacer homo then answers to the sacrificial victim. He may be the victim awaiting the stroke of the axe before the altar, but this is not necessary. The ' devoted ' man may have escaped his proper doom, and be wandering like Cain, but without Cain's protection. In that case any man may with impunity hasten the erring soul to its appointed place. Normally the offender would die under the hand of the executioner ; but by accident or by the neglect of the magistrate he may escape the operation of the ordinary law. Then comes in the ultima ratio, which arms each man's hand against him. This last situation is so much more picturesque than that of the criminal on whom the vulgar course of justice is being executed, that it is little wonder if our authorities show a tendency to leave the latter out of sight and to lay the main stress on the more interesting and exciting possibility. The subsequent history of the criminal law emphasized this more specific application of the generic word sacratio. The ordinary course of justice becomes in the Republican epoch at once more certain and more secular. The words 1 Virgil, Aeneid, II. 104. 10 LAW AND RELIGION CH. sanctum and sanctio lose their original connexion with religion. 1 The axe ceases to have any sacral significance, and becomes merely the symbol of unrestricted imperium. By the time of Verrius Flaccus, a writer of the Augustan age, the idea of human sacrifice was, as we have seen above, 2 hinted at only to be promptly repudiated, and we were left to reconstruct the missing link between the word sacer and the dangers and disabilities of legal outlawry. On the other hand, we find the word commonly used in- connexion with certain complications with which the ordinary law is hardly competent to deal ; and now the possibilities, which the second part of the doctrine of sacratio involves, develope themselves. This aspect of sacratio, not as execution but as outlawry, is most commonly in evidence in cases where the parties stood in some relation which precluded an ordinary action at law between them, 3 so that the intervention of divine power might well be called for, just as it was by the appeal to an oath in some other instances which seemed to evade legal action. 4 Thus the wretch, by whose act — Pulsatusve parens aut fraus innexa clienti, 6 was regarded as specially marked out for the more spon- taneous and mysterious form of punishment here and here- 1 Ulpian, Digest, I. 8. 9. § 3 ' quod enim sanctione quadam subnixum est, id sanctum est, etsi deo non sit consecratum '. ' See above, p. 5. * See Paulus, Digest, XLVII. 2. 16 ' non magis cum his, quos in potestate habemus, quam nobiscum ipsis agere possumus '. 4 As for example in the oath to sanction an agreement between the master and his slave whom he intends to manumit under con- ditions, but with whom he cannot make a legal contract. In this case, however, and in this alone, the State stretches its functions by bringing to bear civil compulsion as a supplement to the religious sanction. See Mommsen, Rom. Forsch., Vol. I, p. 370. " Virgil, Aeneid, VI. 609, with Servius' comment ' ex lege XII Tab. venit, in quibus scriptum est "patronus si clienti fraudem fecerit, sacer esto ".' See Bruns, Fontes ', p. 33. I SACRATIO FOR PUBLIC CRIMES II after. The regular course of law, if not powerless against such an offender, was at least more difficult to set in motion than when the parties were strangers, and could sustain a legal action against one another ; and so Heaven was invoked to hunt down the criminal by casual agency, in which Providence would guide the avenging hand. The same process of sacratio, combined with another primitive method, the self-help which every citizen exer- cises against those who attack him or his, appears likewise as the avenging force for certain public wrongs against which the regular course of law seems to offer insufficient provision. The most notable of these are the attempt, whether successful or not, to restore the kingship, 1 and the violation of the sanctity of the tribune. The two instances can hardly be treated apart, though they differ in some incidental points. In both cases we find the obligation which lies on the people to punish such crimes confirmed by an oath, ' which gives the stamp of unalterableness to the decree,' 2 and in both cases the penalty takes the form of the sacratio of the life and goods of the offender. Let us consider first the case of the tribunes. The jurists, says Livy, 3 held that a man was not ipso facto constituted ' sacrosanct ' by the sole circumstance that the person who outraged him was so devoted. For instance, the consular law of Valerius and Horatius, passed after the deposition of the decemvirs, in 449 b. c, decreed ' ut qui tribunis plebis aedilibus judicibus decemviris nocuisset, ejus caput Jovi 1 Livy in II. 8. 2 speaks of ' sacrando cum bonis capite ejus qui regni occupandi consilia inisset ' ; in III. 55. 5 the man who creates a magistrate without appeal is named as the offender. No doubt in both laws king and king-maker were made equally liable to punish- ment, and it is owing merely to Livy's carelessness that only one is mentioned on each occasion. ■ Mommsen, Strafrecht, p. 553. * Livy, III. 55. 8. 12 LAW AND RELIGION CH. sacrum esset, familia ad aedem Cereris Liberi Liberaeque venum iret', but, nevertheless, the aediles and the other officers named x did not possess sacrosanctitas ; this quality was reserved for the tribunes, and conferred on them ' vetere jurejurando plebis, quum primum earn potestatem creavit '. 2 So far Livy. Festus (s. v. sacramentum) tells us that Cato did not agree with Livy as to the law, and held that the plebeian aedile was sacrosanct; but he too made the sacrosanctitas depend on the circumstance that 'jure- jurando interposito est institutum, si quis id violasset ut morte poenas penderet '. Cicero, on the other hand, seems to hold 3 that sacrosanctitas may accrue either from the character of the penalty (sacratio) attached, or from the con- firmation by an oath of that which is decreed. The explanation seems to be as follows. At the time of the original secession to the Mons Sacer, in 494 B. c, the decrees of the plebs had not the force of law, and some basis of inviolability outside the law had to be found for the tribunes. The consular law of Valerius and Horatius, regularly passed in an assembly of the whole Roman People, forty-five years later, gave to the tribunate the legal defence which it had not originally possessed. Logically, perhaps, this tardy recognition ought to have sufficed for all purposes ; but in fact the plebs did not on that account renounce its older method of enforcing respect. The plebeians, when they founded the tribunate, had not only negatively em- 1 It is uncertain what is meant by judices and decemviri. See below, pp. 62 and 209. ' i. e. in 494 b. c. It is noticeable that the cognate phrase ' sacrata lex ' was by some jurists limited to the constituent ordinance passed on that occasion at the Mons Sacer, while others extended it to com- prise any law, for the breach of which it was decreed that the offender became ' sacer '. (Festus, s.v. sacratae leges.) ' Cicero, pro Balbo, 14. 33. See Mommsen, Staatsrecht, II *, p. 303, note 2, for a commentary on this difficult and corrupt passage. I SACROSANCTTTAS OF TRIBUNE 13 powered any man to put the assailant of a tribune to death as ' sacer ', but had sworn positively for themselves and their descendants that they would actually put this power into exercise against the offender. It is only this positive obligation that constitutes its beneficiary ' sacrosanct '- 1 ' The " sacrosancta potestas " of the tribune,' says Momm- sen, 2 'is originally an euphemism for revolutionary self- help ' ; and again, 3 ' In place of the death penalty prescribed by law for the violation of the magistrate, 4 we find the political self-help, confirmed by oath, which intervenes when- ever the law is exhausted, especially in case of the ban laid on the kingship or any equivalent power.' 5 The same doctrine is presented in Mommsen's latest work: 6 'With respect to legal protection of the tribune and of plebeian privilege generally, the confirmation of the law by the per- mission of popular execution is asserted with especial emphasis ; and this is natural enough, since legal magis- terial execution was not applicable to these essentially revolutionary ordinances, and these same private tribu- nician ordinances without such a revolutionary appeal to the self-help of the plebeians, would have been a dead letter.' In the few cases 7 in which the punishment of death is stated to have been actually inflicted or attempted by a tribune, the method is that of popular execution ; the tribune has no lictors or axes, and can only throw the 1 See below, p. 18, note 2. 2 Staatsrecht, IP, p. 287. * Staatsrecht, ibid. 4 i. e. the 'patricius magistratus ', the ' magistratus Populi Romani '. ' ' or any equivalent power.' Mommsen's words are justified by the passage which he quotes (Strafrecht, p. 551, note 1) from Cicero, de Republica, II. 27. 50 'Nostri omnes "reges" vocitaverunt qui soli in populo perpetuam potestatem haberent '. " Strafrecht, p. 937. ' e. g. Icilius and the lictor in Dionysius Halicarnasensis, X. 31. 14 LAW AND RELIGION CH. offender from the Tarpeian Rock. 1 Thus we get the curious result which has been hinted at above, 2 that the killing unavenged of the homo sacer, as of the fugitive sacri- ficial beast, survives in precisely that form of execution which is furthest removed from any primitive ritual of sacrifice. It is probable that later writers are thinking mainly of the criminal executed in this tumultuary fashion, when they speak of the homo sacer. As a general rule the tribune's sentence admits of an appeal to the comitia : in case of fines, he himself convokes the plebs to hear the appeal, and in case of capital sentences ' he asks the -praetor urbanus for a day ' of the comitia centuriata. Such is the procedure against the censors, Claudius and Gracchus, who were adjudged guilty of per- duettio by a tribune for supposed contempt of his office in the year 169 b. c. The censors were finally acquitted by the People, but if they had been condemned they would, like other criminals of that period, have escaped death by exile. 3 Sometimes, however, we hear of a far shorter and sharper method. In the year 131 B.C. a tribune, Atinius Labeo, actually laid hold on the censor Metellus (again for contempt) and dragged him to the top of the Tarpeian Rock. The execution was prevented by the auxilium of another tribune, 4 the right of Labeo being thus, as Mommsen has remarked, 6 ' at once acknowledged and frustrated by intercession.' In 1 Mommsen, Strafrecht, p. 933. Sextus Lucilius, tribune in 88 b. c, was in the next year thrown from the rock by his successor, Publius Laenas (Velleius, II. 24. 2). a See above, p. 3. 3 Gracchus saved his fellow censor by swearing that ' si collega damnatus esset, non expectato de se judicio, comitem cxilii ejus futurum ' (Livy, XLIII. 16. 15). * Pliny, Hist. Nat. VII. 44, 143 ' Quum resistendi sacroque sanctum repellendi jus non esset, virtutis opera et censurae periturus, aegre tribuno qui intercederet reperto, a limine ipso mortis revocatus, alieno beneficio postea vixit '. ' Strafrecht, p. 47. I TRIBUNICIAN EXECUTION 15 the reported cases the self-help is always the work of the aggrieved tribune himself or of his colleague. There is no recorded instance of the private plebeian having ever been called upon, in obedience to his oath, to avenge an outrage on a tribune ; but the knowledge that such vengeance would be forthcoming, if necessary, was sufficient to enable the tribune to act, as Mommsen says, 1 ' without instruments by the grip of his own hand, to which the inviolability of his person gave the necessary power.' Cicero has this ultimate sanction in mind when he illustrates the unfairness of the contest between Clodius and himself, ' tribuniciique san- guinis ultores esse praesentes, meae mortis poenas judicio et posteritati (the future) reservari.' 2 The passage last quoted indicates pretty clearly that condemnation before a legal tribunal is not a necessary preliminary to the self-help of the plebs, and the same conclusion may be drawn from the circumstance that we find appeal made, with however little warrant, to the unquestioned existence of such a right of self-help, as a justification by analogy for private violence. 3 On this point the utterances of Mommsen are somewhat wavering. In the Staatsrecht 4 we read : ' In its better times the democracy certainly treated every attack on the tribunate as a crime worthy of death, but did not thereby sacrifice the dearest right of the commons, the right of appeal ; and the usurpation obviously never became recognized law. Accord- ing to the theory of the later democracy the slaying of him who violated a tribune was permitted to every citizen, with- out judgement and without law, just as the slaying of him who aspired to kingly power. Whoever acted on this doctrine — and no instance is recorded — could call his deed Strafrecht, p. 932. Cicero, post Reditum in Senatu, 13. 33. Cicero, pro Tullio, 5. 49. ' Staatsrecht, IP, p. 305. 16 LAW AND RELIGION CH. an execution only in the sense in which Brutus and his fellows claimed to have executed the law on the dictator Caesar.' In one passage of the Strafrecht x again, Mommsen certainly seems to suggest a negative answer to the question ' whether the tribune is legally entitled to proceed without further ado to such executions, a doctrine which, for the matter of that, was never fully acknowledged, and only appears as the claim of the advanced democracy ' ; and to give preference to the other alternative — ' or whether, as after the conclusion of the struggle of the orders was the recognized right, he required confirmation by the people before he executed capital punishment.' We find, however, presented elsewhere in the Strafrecht* another, and, it seems to me, a more correct view of the case : ' The tribunician right over life and death rests not on the * same ground as that of the patrician magistrate, but on the ' constituent ordinances of the plebs, on the power, namely, ' similar to that of the patrician imperium thereby guaranteed ' to its leaders, and afterwards recognized by the law. Now, ' since the right of the patrician consuls over the life and death ' of the citizens was by the Valerian law bound up with the " assent of the populus, it was only proper for the representa- ' tives of the plebs to connect their similar power with the ' consent of the plebs, or later on of the whole people. But ' strictly speaking it might be said that the tribunes possessed ' a right, similar to the original right of the consuls, and that ' they were not limited, like the latter, by the Valerian law. ' In fact we know of one fully accredited historical instance ' of tribunician action, 3 clearly justified by the letter of the ' law, wherein trial and appeal were excluded, and the tribune ' treated the Roman citizen as if he were a foreign criminal.' 1 Strafrecht, p. 932. * Ibid., p. 46. 8 The instance, of course, is that of Labeo and Metellus. I TYRANNICIPE 17 On the whole, the judgement indicated in the passage last quoted may be taken as the sounder of the two. We have seen x that the Romans of Cicero's time allowed the doctrine, even in its extreme form, as justifying the action of private men. Mommsen has most lucidly set before us 2 that its maintenance was necessary for the tribunate in its inception, and though it must be acknowledged that the doctrine was very liable to abuse, and that the practice of the middle republic allowed it to fall into desuetude, these considerations do not justify us in ascribing the doctrine itself merely to a party theory of the extreme democrats in the last age of the free State. The case of the violator of the tribunician sanctity, and that of the usurper of monarchical power are, as Mommsen clearly sees,, precisely parallel ; only as regards the latter the necessity of the case shows us more distinctly what was the intention of the legislator. Mommsen ascribes the current and obvious interpretation in this case too to ' the party doctrine of the republican legitimists '. In the dis- cussion of it 3 he seems to me to create an opposition, not founded on reality, between the oath — ' in which might be found not indeed the legal, but the moral and political obligation to treat such a king as equivalent without more ado to a public enemy ' — and the sacratio, of which he says that ' it is nothing more than a threat of capital punishment, the execution of which must be preceded even in this case by a legal conviction '. This is of course in flat con- tradiction of our authorities, especially of the &vev /cpiWos of Plutarch. 4 But apart from this it is manifest that the 1 See above, p. 15. * See above, p. 13. * Strafrecht, p. 552. * Plutarch, Poplicola, 12. 1. We find the same totidem verbis about the violation of the tribunate, xa< aKpvrov top Ttoirjaavra avrb tat (cai ivayr) anoWivat (Dio Cassius, LIU. 17. 9). 1110 C 18 LAW AND RELIGION CH. same act, killing without trial, is the object both of the sacratio and of the oath. That Brutus 1 should mention the oath rather than the sacratio is natural enough, because it goes further, and establishes not only a justification but an obligation. A valid moral and political obligation, imposed by the sovereign body to the performance of an act, necessarily comprehends and implies the lawfulness of that to which the subject is obliged. In this case the sacratio legally permitted that to which the oath ' morally or politically obliged \ 2 But the crushing objection to Mommsen's interpretation is that it reduces the action of the legislator to mere childish- ness. When the Romans laid down concerning the monarch or his abettor, ' eum jus fasque esset occidi, neve ea caedes capitalis noxae haberetur,' 3 is it possible that they can have intended the futility of granting the slayer immunity only on condition of a proceeding so hopeless as the formal trial of the usurper ? How could he be brought to trial ? Treason doth ne'er succeed ; and what 's the reason ? When it succeeds, no man dare call it treason. This is so obvious that I think that the proposition that the Roman law authorized tyrannicide would never have been disputed, if this law had not unhappily served to supply a doctrinaire motive to the assassins of Caesar. Mommsen feels instinctively that they must not be acquitted, and he scorns to resort, as some have done, to the subterfuge that 1 Appian, Bellum Civile, II. 1 19. See Mommsen, Strafrecht, p. 552, notes 1 and 3. * Since I first wrote these words, I find that the case has been more neatly put in Latin—' quod lege sanctum erat ut fas esset, cui- cumque videretur hominem sacrum interimere, jurisjurandi religione sic firmatum est, ut nefas et piaculum esset, si quis noluisset.' Liib- bert, Commentationes Pontificates, p. 169. See also above, p. 13. 3 Livy, III. 55. 5. I INTERNATIONAL OFFENCES 19 Caesar was not a king. It would have been better if, instead of wresting the sense of the Valerian laws, Mommsen had been content to take up the impregnable position that assassination as a political weapon is never to be justified, and that a law or oath which prescribed it to all future generations ought never to have weighed in the minds of persons professing to be serious statesmen. Discussions as to its binding character should have been left to Roman antiquarians and Greek philosophers. The influence of religion is conspicuous in the treatment of international questions ; a whole department of law, the jus fetiale grew up for their settlement, and in some cases the infliction of punishment was involved. It was essential for the Romans to get the favour of Heaven on their side, and to avert any cause of the Divine wrath. When, there- fore, they found themselves put clearly in the wrong by the action of one of their officers, they borrowed from private law the device of the ' noxal surrender ", by which the pater- familias frees himself from responsibility by handing over an offending son or slave to the injured party. 1 In cases of inter- national wrong, if the other side accepts the surrender, all is well ; the State has made its peace with the gods, and may fight on with a clear conscience. But complications, both legal and religious, arise if the other party refuses the proffered scapegoat. We find the Senate in 160 B.C. declining the surrender by the King of Syria of two persons judged to be guilty of the assassination of Gnaeus Octavius, a Roman envoy. Of these two, Isocrates, an abettor after the fact, went raving mad with fright ; but Leptines, the actual assassin, who had him- 1 See below, p. 39. The violation by the Romans of this duty was believed to have led to the destruction of the City by the Gauls (Plutarch, Numa, 12. 5). C 2 20 LAW AND RELIGION CH. self suggested the surrender, cheerfully protested that he had nothing to fear, and he proved to be right. The Romans, as Polybius 1 says, wished to keep the quarrel alive, so as to have it ready to use hereafter, if desirable. There are several instances of such surrender on the part of the Romans themselves, for instance, that of Postumius and his fellow sponsors after the disaster of the Caudine Forks, 2 of Marcus Claudius to the Corsicans in 236 B. c., 3 and of C. Hostilius Mancinus to the Numantines in 136 B. c. On each of these occasions the enemy refused to be ' robbed of his best griev- ance ', and rejected the tender of the prisoner. We are not told of the fate of Postumius ; in the case of Claudius, it was held that Rome could cleanse herself only with his blood, and he was put to death in prison. A hundred years later public opinion was less stringent, and Mancinus' life does not appear to have been in danger. It was, however, a matter of grave doubt whether the deditio, though incom- plete, 4 had not extinguished his citizenship. Cicero, 5 allud- ing to the case two generations later, pronounces in the negative ; but at the time P. Mucius Scaevola, pontifex maximus and praetor in that same year, seems, says Pom- ponius, 6 to have been of the opposite opinion, and held that 1 Polybius, XXXII. 7. 12. ' Livy, IX. 10. * Valerius Maximus, VI. 3. 3. * Postumius, in assaulting the Roman fetial, had claimed that he belonged to the Samnites, and that they were responsible for his actions from the moment of his tender. Livy, IX. 10. 10 ' se Samnitem civem esse ', &c. * Cicero, pro Caecina, 34. 98 and Topica, 8. 37. * Pomponius, Digest, L. 7. 18. I think that the parallel 'sicutfaceret (populus) quum aqua et igni interdiceret ' is not from either of the Scaevolas, but is an illustration added by Pomponius himself, in whose time (the reign of Hadrian) the interdictus lost his citizenship ipso facto, See below, Vol. II, p. 58, n. 2. Perhaps a better parallel would be that of the sacer homo, whose existence entailed pollution (see above, p. 9), but I do not find this suggested in any of our authorities. I THE PARRICIDE 21 the people had driven him from them, and that no return home was allowed. We cannot gather from the discussion in Pomponius what was the opinion on this particular point of Scaevola's more famous son (Q. Mucius P. F. Scaevola), also in his day pontifex maximus, though as to the necessity of a surrender he had no doubt. The actual case was eventually decided, and against the elder Scaevola, by a decree of the People, in which Mancinus' citizenship was affirmed. Cicero's conclusion was doubtless founded on this decision. Before leaving the question of the influence of religion on the criminal law of Rome, it will be well to say a few words about the dreadful punishment of the parricide. All the details, the head muffled in a wolf-skin, the feet thrust into wooden shoes, 1 the noxious beasts enclosed with the criminal in the sack, the black oxen which dragged the wretch to the sea, 2 and his end — ' living while he may, yet unable to breathe the air of heaven, dying yet not allowed to touch the earth with his bones, tossed by the waves yet never washed by them, cast out, it may be, at last on the shore, but not allowed to rest on the rocks ' 3 — all these point to a religious horror and loathing heightened by every symbol in which primitive man could express himself. But for whom is this gloomy ritual prepared ? Cicero and the jurors who listened to him undoubtedly believed that this was and had been from the first* the punishment ordained for the son who killed his parent. The difficulty is that the most ancient traditions 1 Cicero, ad Herennium, I. 13. 23, of the parricide Malleolus. * ' In mare profundum,' says Modestinus (Digest, XL VIII. 9. 9). Cicero speaks of him as plunged in the river which will carry him down to the sea. Constantine {Cod. Theod. IX. 15. 1) says : ' vel in vicinum mare vel in amnem.' * Cicero, pro Roscio Amerino, 26. 72. ' Cicero, ibid., 25. 70. 22 LAW AND RELIGION CH. give a much wider scope to the word ' parricida '. In his explanation of the Parricidii quaestores, Festus says, ' sole- bant creari causa rerum capitalium quaerendarum. Nam parricida non utique is qui parentem occidisset, dicebatur, sed qualemcumque hominem indemnatum. Ita fuisse in- dicat lex Numae Pompilii regis, his composita verbis, " si qui hominem liberum dolo sciens morti duit parricidas esto." ' Mommsen * attempts to reconcile the discrepancy by the supposition that death by the sack was in regal times the normal method of punishment for all murderers, and that the separation into a class apart of the murderers of near kindred was an afterthought, and arose from the circum- stance that when ordinary murder came to be treated by a milder process in the jury-courts, these worst cases were alone reserved for trial before the People, which made it possible that the ghastly penalty should be actually inflicted. Mommsen rightly rejects the etymology of parricidium as a contraction of patricidium, and himself gives a derivation which, though it has not been approved by philologists, seems in itself sufficiently plausible. He holds that the first part of the word is the prefix 'per ', meaning 'evil', as in per-peram, per-duellis and per-jurus. 2 Parricidium then would mean simply 'foul-killing', 'murder'. We may accept this as a possible explanation of the word; and nevertheless decline to follow Mommsen in associating the punishment of the sack, of which Festus says nothing, with ' parricidium ' in the wide extension which Festus gives to the word in the passage quoted above. I should agree with Brunnenmeister that the words of 1 Strafrecht, p. 922. " The lengthening of the first syllable may have occurred when the letter r was doubled owing to the popular etymology of patricida. I MEANING OF PARRICIDIUM 23 Numa's law imply the expansion of an already existing con- ception of ' foul-killing ' to a wider category of cases. I do not think we can tell how the category was limited before Numa. Brunnenmeister's attempts to define it x are coupled with his derivation of parricida from irr]6s, in the sense of a kinsman. In any case, we may adopt his main con- tention that we should look at the older parricidium as the antithesis to the killing of one outside some mutually protecting group. In the case of the outsider, the slaying would be punishable only so far as the fear of the vengeance of other outsiders might lead to a ' noxal surrender ', 2 while inside the group (whatever it was) the sanctity of life was guaranteed, and its violation must be punished. Though the previous boundary-line of parricidium is unknown to us, the uncertainty vanishes with Numa's law. Henceforth it includes the wilful slaying of any free man, whether fellow tribesman or stranger, citizen or alien. The punishment is not defined by Numa, so we may naturally suppose that it was the normal capital punishment of beheading. The sack, on the other hand, has, as I believe, nothing to do with parricidium in Numa's sense, but must be con- nected, according to the universal Roman tradition, with the killing of a parent by a son. The peculiar punishment and the peculiar crime being connected together from the first, the word ' parricida ' must have been linked to them at a later time by the false etymology of ' patricida '. We may conjecture with Mommsen that this occurred at a period when the punishment of death for ordinary murder had become obsolete through the operation of the jury-courts, from which custom reserved these blackest cases. 3 Of the actual execution as described by Modestinus 1 Brunnenmeister, Todtungsverbrechen, pp. ioi-12. 8 See below, p. 39. * See below, p. 162. 24 LAW AND RELIGION CH. and by Cicero, 1 the most probable explanation is that of Brunnenmeister, 2 that the unnatural crime was treated on the analogy of a monstrous birth, as a prodigy foreboding evil, a pollution, of which the universe must rid itself. He gives many instances in which such births are put away in a river or in the sea. The best is from Livy 3 — ' Sooth- sayers brought from Etruria pronounced that this was a foul and ill-omened prodigy, and that it must be plunged in the depths, outside of Roman territory and far from the touch of land. Accordingly they enclosed it alive in a chest, carried it out to sea and threw it overboard.' This brings us very near to the parricide in the sack, as described by Cicero. While agreeing with Brunnenmeister that this drowning is the procuratio * of a prodigy, I should not follow him in excluding from it any idea of punishment. ' From the first,' he says, ' it is foreign to the nature of punishment, it is neither spiritual nor temporal punishment, neither sup- plicium nor poena.'' I do not believe that the primitive Roman distinguished with such accuracy, and I find no difficulty in the statement of Modestinus 5 that according to the most ancient custom the victim was scourged, a state- ment which Brunnenmeister finds himself obliged to dis- believe, so far as early times are concerned. On the con- trary, I think that men might well express their loathing for the accursed thing in this, as in any other form of out- rage. We read that in time of plague or famine certain human scapegoats ((papnanol) were beaten with twigs of the 1 See above, p. 21. ' Brunnenmeister, Todtungsverbrechen, pp. 193 seq. ■ Livy, XXVII. 37. 6. * That is to say, a provision by which the mischief of the evil thing may be averted from the State (Livy, VII. 6. 7) or from an individual (Livy, V. 15. 6). ' See Digest, XL VIII. 9. 9. 1 COMPETENCE OF KING 25 wild fig-tree and with weighty squills 1 on their way to be burned alive on the beach, and have their ashes scattered on the waves. 2 If, as I am inclined to believe, the phrase of Modestinus, ' sanguineis virgis verberatus,' indicates that the rods for the parricide were made from the wood of a special shrub, and that a shrub with medicinal or magical qualities, 3 the primitive and ritual nature of the punishment would be the more apparent. 4 I will conclude this chapter by noticing a feature in the history of the Roman law, which has been admirably eluci- dated by Mommsen and by Girard. Not only is the in- fluence of religion on law in historical times a vanishing quantity — this is the normal course of events in a progressive community — but in this case the process is aided by a cir- cumstance peculiar to Roman history. The original func- tions of the imferium were concentrated in the person of the * This is the scilla maritima or ' sea onion ', the biggest of all the bulbi according to Pliny (Hist. Nat. XIX. 30), and a formidable instru- ment of assault. It has a stalk three or four feet long, and a bulbous root, mostly above ground, somewhat like a turnip. I am indebted to Mr. Claridge Druce, F.L.S. for help in this note. * This account is taken from Joannes Tsetzes, a Byzantine of the twelfth century. He refers (Chiliades, V. 725 seq.) to Lycophron, an Alexandrian tragedian, and to Hipponax, a writer of satirical iambics in the sixth century b. c. It is uncertain whether the ceremonies of the Attic Thargelia, which Frazer (Golden Bough, 2nd ed. 1900, Vol. Ill, p. 127) includes under ' fertility magic ', are to be associated with those described by Tsetzes. 3 Besides casual notices of sanguinei frutices in Hist. Nat. XVI. 74 and 176, Pliny tells us (ibid., XXIV. 73) that the inner bark of the sanguinea vivga scarifies wounds which have healed too quickly, and again (ibid., XIX. 180) that sanguineae virgae are used to touch any plants which you wish to preserve from caterpillars. Some critics, however, think that sanguineis in Modestinus means that the rods were painted red (Hitzig, Todtungsverbrechen, in Revue Pinale Suisse, 1896, p. 41), and others that they are called sanguineae, because stained with the blood of the victim. * In later times scourging would be forbidden by the lex Porcia ; see below, p. 125, note 5. 26 LAW AND RELIGION CH. king, who was likewise the head of the State religion. It is the same person who acts as supreme in things religious and things secular ; there is no need for him to specify in which capacity he is acting on each occasion ; x and the citizens are not called upon to disentangle the spiritual from the temporal. This naturally tends to keep the two in close connexion. But with the regifugium comes an important change. The Romans were evidently nervous lest their action might have involved them in some contradiction of the divine pleasure. 2 They avoided the danger by two ex- pedients ; in the first place they set up a puppet with the kingly title (rex sacrorum), that the gods might not miss their accustomed celebrant ; in the second place they trans- ferred all the regulation of things sacred from the magistrates of the State to a new spiritual officer, the Head of the College of Pontiffs. So anxious were they to keep his position distinct from that of the secular magistrate, that they would not allow him to be appointed by the People. 3 From hence- forth, except so far as concerns official misdoings of the 1 See Girard, Org. Jud., p. 20. 2 For a similar reason down to Cicero's time they added to each new law a clause : ' Si quid jus non esset rogarier, ejus ea lege nihilum rogatum.' Cicero (pro Caecina, 33. 95) takes these words as intended to protect the liberties of the individual citizen from the omnipotence of the popular vote. They might certainly have this effect : a privilegium, for instance, would be non jure rogatum. But I think that originally the clause was meant rather to protect the People collectively from unwittingly sanctioning an act which might prove to be an impiety. The question whether the line had been over- stepped, and nullity thereby incurred, in each case, would be referred to expert interpreters, the pontiffs and augurs. See Cicero, de Legibus, II. 12. 31. 3 Even when in the later Republic the political importance of this and other spiritual offices and the jealousy felt towards close corpora- tions led as a practical result to popular election, its appearance was sedulously avoided. The pontiff or augur was elected by seventeen of the thirty-five tribes chosen by lot, so that it was never the majority of the Roman People which voted. I SEPARATION OF POWERS 27 priests in their celebration of sacred rites, 1 ' those who had the right to punish had no longer the right to meddle with things divine, and those who regulated religion had no right to punish'. 2 Thus the good fortune of the Roman People severed the old connexion, so that the secular and the spiritual drifted apart. When under the principate the two functions were again placed in one hand, it was too late for religion to exercise its baneful influence on law. 1 See below, p. 31. 2 Girard, Org. Jud., p. 55. Clodius' case is a good instance. When the pontiffs have pronounced that the invasion of the mysteries of the Bona Dea was nefas (Cicero, ad A tticum, 1. 1 3. 3 ), the consuls and senate are bound to take up the case ; but the pontiffs themselves have nothing to do with trial or punishment, nor the consuls with religion. There is an apparent exception in the lex Ursonensis (chap. LXVI ; Bruns, Fontes ', p. 1 2 5 ) : ' De auspiciis quaeque ad eas res pertinebunt augurum juris dictio judicatio esto.' I should agree with Mommsen (Juristische Schriften, Vol. I, p. 251) that the draftsman of the law has by a slip ascribed to the augurs what really belongs to them only indirectly, because the magistrates are bound to follow their instructions in these matters. CHAPTER II CRIMINAL LAW AND THE FAMILY Is the right of the State to punish derived from any notion that the king is the father of the community, and that he exercises his rights over its members on the same title as the paterfamilias over those of his own household ? Mommsen would seem in some passages to answer this question in the affirmative. He had long ago laid it down 1 that the king ' acquired in its entireness that power over the community which belonged to the house-father in his house- hold ', and in the Strafrecht 2 he speaks of the ' transference of household discipline to the ordering of the State, since the relations of king and citizens were assimilated to those of the house-master and his subjects ' ; and again, 3 ' as he who wishes to know the stream must never forget its source, so the Roman Criminal Law can be understood only on the basis of household justice.' This doctrine seems to me unsound. No Roman writer, so far as I know, has ever attributed the p atria potestas either to the magistrate, whether king or consul, or to the sovereign people itself, and there is no trace of the powers exercised by the State authorities developing out of those exercised by the head of a family. The very basis of the domestica disciplina, the right of ownership, is wanting to 1 Mommsen, Rom. Hist., Book I, chap. V. ! Strafrecht, p. 28. ! Mommsen, ibid., p. 17. CH. II HOUSEHOLD JURISDICTION 29 the State. Ihering 1 has well remarked that it would be strange indeed if the State were organized on the model of a patriarchal household, while the intermediate organiza- tion, the gens, is ' republican down to its roots ', and is founded on the equality of the gentiles. It may be added that if the Romans had believed their monarchy to be patri- archal, the belief would have been reflected in their legends, and the succeeding kings would certainly have traced their descent to Romulus. The connexion between the two, the State and the house- hold, which he assumes, does not lead Mommsen far astray, for shortly after the last passage quoted he supplies 2 qualifications which practically negative the original thesis : ' Further the individual, who is subject to the household power, if he offends, can be called to account either by the master of the house in virtue of his ownership or by the State in virtue of its supreme power ; and this household procedure not only does not itself belong to the criminal law, but can never be transferred to it, both because the con- trary nature of the two must be clearly maintained, and because the law of the master of the house partly overlaps and partly supplements the criminal law of the State.' This seems to me to be the true theory. The relation between the two jurisdictions is one of resemblance and parallelism, not of origin and development. There are two difficult and doubtful questions which touch on the relations of household law to the State. The first is that of the Vestal Virgins. There is no question that the pontifex maximus has over them the right of corporal chastise- ment, if they neglect their duties — as for instance by allow- ing the sacred fire to go out — and the fullest power of life 1 Ihering, Geist des romischen Rechts, Vol. I, p. 259. ! Strafrecht, p. 17. 30 LAW AND THE FAMILY CH. and death in case of unchastity. The paramour of the Vestal was likewise scourged to death by the pontiff, with- out being allowed the right of provocatio. Mommsen was formerly of opinion that the execution of the male culprit is a survival of the right of avenging his honour possessed by a householder against the seducer of his daughter. In his latest work 1 he is disposed to consider that it is of com- paratively late origin and depends upon positive legisla- tion by the People. 2 He still maintains, however, that the punishment of the Vestal herself is a case of patria potestas. 3 The theory has in it much that is attractive. The Vestal fulfils the duty of a daughter on the hearth of the State, and it seems only natural that she should have the legal relation of daughter to the king or the chief priest who has ' laid his hand on her and taken her from the parent in whose power she was '.* Again, this theory supplies a logical ex- planation of a legal position otherwise difficult to understand ; for if the power of the pontiff be that of the head of a house- hold it will follow naturally that it shall be concurrent with the power of the State, and that neither can exclude the other. Such a relation we do find very precisely realized in fact. In the year 113 B.C. two Vestals, who had already been acquitted by the pontiff, were again arraigned before a tri- bunal instituted by a special law of the People, 5 and both were condemned. It is probable, though not certain, that the 1 Strafrecht, p. 20. 1 He rests this belief on Festus' statement (s.v. probrum), ' Pro- brum virginis Vestalis ut capite puniretur, vir, qui earn incestavisset, verberibus necaretur ; lex fixa in atrio libertatis cum multis aliis legibus incendio consumpta est, ut ait Cato.' 8 Girard, Org. Jud., p. 37, note 1, is inclined to agree with Momm- sen's earlier view. * Aulus Gellius, Noct. Att. I. 12. 13. ' See below, p. 237, note 2. « PONTIFF AND VESTALS 31 full penalty was exacted. At any rate the Vestals were not allowed to plead the one jurisdiction against the other. If we deny the patria potestas, we must suppose that the pontiff is using in this case the magisterial power which he possesses over the other priests as head of the State religion. 1 There is no doubt that, for instance, he can, subject to appeal to the People, fine a defaulting flamen or augur. 2 But if in the case of the Vestals too he is exercising an authority committed to him by the People, it would be against all Republican usage that the State should not recognize a formal acquittal by him as final. 3 We thus seem driven to the conclusion that the previous acquittal was that of a household tribunal and not of a public one. On the other hand, it is a very serious objection to Momm- sen's theory that the Vestal Virgin is not in any matter of private law under the patria potestas of the pontiff, but is a person, sui juris, with all the rights of an owner. This is shown by the circumstance that in case of suspicion the pontiffs have to command her to retain her slaves in her own power ; 4 otherwise there would have been nothing 1 See Mommsen, Strafrecht, p. 37 : ' the magisterial power granted him within certain limitations over the other priests.' This doctrine is to be preferred to that of Danz (Sacrale Schutz, p. 81), that the flamen is under the patria potestas of the pontiff. If he had been, he certainly could not have appealed to the people against the pontiff's sentence (Livy, XXXVII. 51.4). The flamen Dialis, however, though he did not become the son of the pontiff, obtained, like the Vestal, freedom from his natural father (Gaius, Inst. I. 130). 2 There are many instances ; but perhaps the most interesting is that reported by Festus, s.v. Saturno (Miiller, p. 343). An augur was fined by the pontiff for not obeying his summons to attend him at some feast of Saturn, and appealed to the People against the sentence. His excuse was that sacrifices to Saturn were made bare-headed, whereas he was engaged in some family rites which obliged him to keep his head veiled. The plea was admitted. ' See below, Vol. II, p. 177. 4 Livy, VIII. 15.8. See below, Vol. II, p. 126. 32 LAW AND THE FAMILY CH. to prevent her manumitting any slave who might be wanted as a witness. Not only does she own property, but, unlike other women, she may administer it without the interven- tion of a guardian. This is granted her, says Gaius, 1 'in honorem sacerdotii.' This same ' honor sacerdotii ? may possibly account for the privilege of holding property as well ; but in that case it is strange that Gaius should not mention it. That a woman under patria potestas, and there- fore a person alieni juris, should be allowed to have property of her own, is a much more striking glorification of the priesthood than that a woman, already sui juris, should be relieved from Mela. The question must be left unsolved, since no ancient writer has thought it worth while to tell us, at any rate for the time prior to the law posted in the Atrium Libertatis, on what basis the jurisdiction of the pontiff over the male and the female offender really rested. The second case in which household discipline appears in connexion with the ordinary law is that of women convicted of criminal acts. Over and over again we find the actual execution of punishment, capital or otherwise, 2 committed to the relatives of the culprits instead of being carried out by the servants of the State. The noticeable point is that this occurs not only with those who are under the potestas of father or husband (in such a case the persons quorum in manu essent have a clear right to deal with them), but with women who are sui juris, 3 and who are nevertheless put to death or banished by propinqui or cognati. Mommsen considers this to be a survival from a supposed 1 Gaius, Inst. I. 145. * Livy, XXXIX. 18. 6 and Tacitus, Annates, II. 50. 5 "adulterii graviorem poenam deprecatus, ut exemplo majorum propinquis suis ultra ducentesimum lapidem removeretur suasit'. ' The two categories are distinguished in the case of the Baccha- nalian women (Livy, XXXIX. 18. 6). II TUTELA AND POTESTAS 33 ' original order of things ', according to which a woman always and necessarily remained under patria potestas. If there were neither father nor husband to claim it, the absolute rights over her person and property passed (such is the hypothesis) to the gens, and the primitive tutela gentilium is set down as probably equivalent to the manus, with the consequence that a woman under this system could never be sui juris. This is a hard saying, and is certainly not to be justified by straining (as Mommsen does) 1 the words of so easy-going a writer as Livy : 2 ' majores nostri feminas voluerunt in manu esse parentium, fratrum, viro- rum,' nor by the cases 3 adduced by Girard, in which a potestas is descriptively ascribed to the tutor. In Roman law, as we know it, tutela is possible only in case of persons who are sui juris ; its intention is to give to persons otherwise capable of legal acts, but of weak age or sex, protection from the consequences of acts by which they would, but for such protection, be bound. Persons alieni juris, a slave, a son or a daughter, are essentially incapable of legal acts binding on themselves, and the notion of protection in their exercise becomes absurd. Thus the conditions under which these two relations exist are mutually exclusive ; 4 and that tutela 1 Strafrecht, p. 18. ' Livy, XXXIV. 2. 11. * Girard, Org. Jud., p. 97, note 1. See Cicero, pro Murena, 12. 27. Servius couples with potestas another descriptive phrase, either jus (Justinian, Inst. I. 13. 1) or vis (Digest, XXVI. 1. 1), and adds that these are given ' ad tuendum '. The strongest case is that of the maniac (quoted from the Twelve Tables by Cicero, de Inventione, II. 50, 148) 'Si furiosus escit, agnatum gentiliumque in eo pecuniaque ejus potestas esto ' ; but this potestas is something very different from the absolute right of property. The tutores could not convert the goods of the madman to their own use, as they might have done had he become alieni juris (as by adoption) : on the contrary they were liable to an action negotiorum gestorum ( Julianus, Digest, XXVII. 10. 7). * See Gaius, Inst. I. 146 'Nepotibus autem neptibusque ita demum possumus testamento tutores dare, si post mortem nostram in patris sui potestatem recasuri non sint '. iuo D 34 LAW AND THE FAMILY CH. is in any case equivalent to manus is a proposition which could be accepted only on the strongest evidence. In this case the evidence is not forthcoming. We know that as early as the law of the Twelve Tables a woman was capable of holding property, and that on the death of a father the daughters, who were at the time under his patriot potestas, inherited their share of the property equally with their brothers. 1 It seems to follow of course that they became persons sui juris, calling for the protection of a guardian. Mommsen admits this freely, and his hypothesis relates solely to a primitive, prehistoric era. I cannot do better than quote what he himself says on this point : ' The woman under potestas enjoys the protection of a free- ' woman as against third parties, but, like a slave, is treated ' by her master as his property. If he kills her the act does ' not in itself fall under the category of murder. It has been ' shown that in historical times this holds only in case of the ' paternal or marital power. It may have held in the earliest ' times in case of the gentile guardianship over the unmarried ' fatherless woman. But the universal servitude of women ' has disappeared from the legal system by the time when we ' have any knowledge of it.' 2 It appears then that the hypothesis as to the primitive state of things is required only to explain the custom as regards the execution of female criminals, with which we started ; and here it is not impossible to find a less hazardous explanation in each case. The most difficult instance is that of Publilia and Licinia, 3 who had poisoned their husbands, 1 See Gaius, Inst. III. 7 and 14 ; Ulpian, Regulae, XXVI. 1 and 6, and especially Paulus (in Collatio Legum Mosaicarum et Romanarum, XVI. 3. 20) : ' Lex duodecim Tabularum sine ulla discretione sexus admittit.' a Strafrecht, p. 617. ' Livy, Epitome, 48 ; Valerius Maximus, VI. 3. 8. H EXECUTION OF WOMEN 35 and were arraigned on this count before the ordinary courts ; before, however, the State tribunals could pronounce on them they were put to death by their propinqui or cognati. I believe that these women were not sui juris, that they had never passed in manum viri, and so remained in the potestas of their respective fathers, and that the cognati or propinqui were simply the friends 1 summoned by the father in con- silium, in accordance with whose recommendation he put his daughter to death. In all the other cases it seems as if the State had already tried and condemned the offenders, and that the magistrates from motives of decency preferred that the women should not be put to public execution, or thrown into the common jail. Under these circumstances it is easy to conceive not only that they called on the father or husband, where there was one, to exercise his power in their stead, but that even in case of women sui juris they selected an idoneus auctor supplicii (to use Livy's descrip- tion) from among the relatives, and delegated to him a power of execution which he did not possess in his own right. 1 Though I should not wish to insist too much on the phraseology, it may be noticed that, if this explanation be correct, the words used by Livy and Valerius, propinqui and cognati, not agnati and gentiles, would be fully justified ; for to such an advisory council all relatives would doubtless be summoned, not only those on the father's side. D 2 CHAPTER III SELF-HELP AS A SOURCE OF LAW It is now fifty years since Sir Henry Maine first pub- lished his work on Ancient Law. The effect of this book on English thought and opinion can hardly be overesti- mated. I shall be constrained later on to express dissent from some of the author's theories ; but meanwhile I would express the gratitude which, in common with all who were commencing their student life at that period, I owe to Maine for the stimulus given to reflection, and the interest then awakened in the legal problems of antiquity. It is with pleasure that I turn to the familiar pages, and quote a few admirably lucid paragraphs * respecting the more immediate subject of this chapter. ' I have spoken of primitive jurisprudence as giving to ' criminal law a priority unknown in a later age. The ex- ' pression has been used for convenience' sake, but in fact the ' inspection of ancient codes shows that the law which they * exhibit in unusual quantities is not true criminal law. All ' civilized systems agree in drawing a distinction between ' offences against the State and offences against the Individual, ' and the two classes of injuries thus kept apart, I may here, ' without pretending that the terms have always been em- ' ployed consistently in jurisprudence, call crimes and wrongs, ' crimina and delicta. . . . Now the penal law of Ancient ' Communities is not the law of crimes ; it is the law of " wrongs, or, to use the English technical word, of Torts. . . . 1 Maine, Ancient Law, p. 369 seq. CH. Ill TORTS AND CRIMES 37 ' There were in the Athenian and in the Roman States laws ' punishing sins. There were also laws punishing torts. The ' conception of offence against God produced the first class of ' ordinances ; the conception of offence against one's neigh- ' bour produced the second ; but the idea of offence against ' the State or aggregate community did not at first produce ' a true criminal jurisprudence.' A little lower down Maine proceeds : * ' How little the notion of injury to the community had to ' do with the earliest interference of the State through its ' tribunals, is shown by the curious circumstance that in the ' original administration of justice the proceedings were a ' close imitation of the series of acts which were likely to be ' gone through in private life by persons who were disputing, ' but who afterwards suffered their quarrel to be appeased. ' The magistrate carefully simulated the demeanour of a ' private arbitrator casually called in.' 2 After relating the formalities of the ' actio Sacramenti ' as described by Gaius, Maine continues : ' Such was the necessary preface of every ancient Roman * suit. It is impossible, I think, to refuse assent to the sugges- ' tion of those who see in it a dramatization of the origin of * Justice. Two armed men are wrangling about some dis- * puted property. The Praetor, vir pietate gravis, happens to ' be going by, and interposes to stop the contest. The dis- * putants state their case to him and agree that he shall ' arbitrate between them, it being arranged that the loser, ' besides resigning the subject of quarrel, shall pay a sum of ' Maine, Ancient Law, p. 374. 1 In another passage (ibid., p. 378) Maine adduces the severer penalties imposed on the thief caught in the act as a further illustration of how the law took as its standard ' the probable acts of persons engaged in a private quarrel '. 38 SELF-HELP CH. ' money to the umpire as remuneration for his trouble and ' loss of time.' The picture of early Roman society may be easily recon- structed from these paragraphs. We must imagine a number of households, each united under its own paterfamilias. In- side the household the father is the sole judge. The relations of the household and its members to other households re- semble, as Maine * points out, international concerns rather than transactions between individuals. Alike to assert the rights and to avenge the wrongs of himself and his followers, the ultima ratio for the chief of the family is private war. He must look to his force and to the force supplied him by his kindred and dependants. Property was to be held by the strong hand. In the law of the Twelve Tables, as de- tailed in Gaius, 2 the fictive struggle is presented by the claimants pretending to cross spears 3 over the slave or chattel in dispute, and by each laying his hand on the object, and only dropping it at the command of the Praetor, * mittite ambo hominem.' Cicero 4 tells us that in his time men still went through the form of leaving the court in order to fight on the ground for the disputed possession of a farm, ' ex jure manum consertum.' If any of the subordinate persons in a family commits an offence against the member of another group, the chief has to fear the vengeance of that other group, and if he be not 1 Maine, Ancient Law, p. 126. 2 Gaius, Inst. IV. 16. 3 This is afterwards referred to as an essential point in the verbal dispute — ' Anne dicis qua ex causa vindicaveris ? ' ; ' Jus feci sicut vindictam imposui.' Poste (Gaius, p. 409), reading ' peregi ' for ' feci ' with the older editors, translates, ' I stated my title before I touched him with my lance.' The reading ' feci ', which results from a more careful study of the palimpsest, confirms Danz's render- ing — ' I was in my right, I was claiming my own, when I laid the spear on him ' (Sacrale Schutz, p. 162). 1 Cicero, pro Murena, 12. 26. HI PUBLIC AND PRIVATE WRONGS 39 strong enough (as George Buchanan said of King James) * to thole his feud and a' his clan's ', he must buy security by the surrender of the culprit. Theft is dealt with by seizing the robber caught in the fact, and holding him in bondage, or, if he be already a slave, by flinging him from a precipice ; if the robber has escaped, the stolen goods must be sought for in a grotesque and ceremonial inquisition over the neigh- bour's house-plot. Bodily injuries are avenged under the lex talionis, seduction of the women of the household by the immediate infliction of death or personal chastisement. The extent to which the • primitive self-help 1 is to be reckoned a source of Roman criminal law may be roughly gauged by ascertaining what offences were at any historical time dealt with, as delicta, under the forms of civil action ; for all civil action is a development from the old actio sacra- menti, and that actio again arises from the regulation of self- help. Theft in all its forms, including fraud, embezzlement, and breach of trust, 2 all personal outrages, assaults, wound- ings and insults (injuria), all trespass on the rights of property, all libel, slander, and false witness, all invasion of the chastity of members of the family (stuprum), 3 are dealt with, in whole or in part, as private wrongs. Mommsen rightly refuses to allow the differences of pro- cedure to obscure the essential fact that such trials are really part of the criminal law. ' The fundamental characteristic,' 1 Another form of self-help, that of the plebs and its tribunes, has left its mark in other ways ; this has been described above (p. 13) ; and there will be occasion hereafter to notice yet another form under the discussion of ignis et aquae interdictio and of proscription ; see below, Vol. II, p. 31 seq. 2 Tutela in Twelve Tables (see Ulpian, Digest, XXVI. 10. 1. § 2, and Cicero, de Oratore, I. 36. 166), circumscriptio in lex Plaetoria (see Cicero, de Officiis, III. 15. 61). 3 For testimonium falsum see Mommsen, Strafrecht, p. 668 ; for stuprum, ibid., p. 690. 40 SELF-HELP CH. he says, 1 ' of a moral law broken, and a reparation pre- scribed therefor by the State, unites the two spheres in an essential identity, and the difference, whether the reparation is realized in a suit at public or at private law, appears in comparison superficial and accidental.' Hitzig, in his review of the Strafrecht* adduces an argument which perhaps appeals more strongly to a jurist than the moral considerations named by Mommsen. He points out that the doctrine ' in poenam heres non succedit ', the distinctive mark of criminal as opposed to civil liability, holds equally for the public and the private criminal law. 3 In these suits under the forms of private law, the penalty inflicted, as on the thief caught in the fact, may be hardly less severe than that which the State dispenses in its ' public ' justice. We may perhaps include the fate of the 'judge- ment debtor ', who may be seized per manus injectionem fro judicato, and then put to death or sold into slavery across the Tiber, 4 as in effect a terrible punishment entailed by con- demnation in a private suit. Nevertheless, the practical difference which follows the distinction in procedure is very great ; for the result is that in all the cases which I have named, the law may be set in motion by the private man, that the penalty, whatever it is, may in historical times always be compounded for, if the offender can find the money, and that from all such suits there is excluded the possibility of an appeal to the People. * Strafrecht, p. 4. * Hitzig, Revue Pinole Suisse, 1900, p. 189. 3 As we shall see later on, the line of demarcation between the two becomes very shadowy, with the institution of the quaestio repe- tundarum ; and in the case of money-penalties imposed by law we sometimes find an option between the public and the private suit. See below, p. 182, note 2. * Aulus Gellius, Noct.Att. XX. 1. 47 ' Tertiis autem nundinis capite poenas dabant, aut trans Tiberim peregre venum ibant '. HI TALIO AND COMPENSATION 4I How then does the action at private law for the redress of personal wrongs develope out of the primitive order ? Here we find our best answer in thle law of the Twelve Tables, which stereotypes procedure at the moment of transi- tion from the rule of private vengeance to that of state adjudication. It was, of course, always possible that the injured party might allow himself to be pacified by the offer of some compensation from the person who had wronged him, and this possibility was laid hold of and developed by the officers of the State. Just as in the struggle over pro- perty ' on some memorable day in the progress of civiliza- tion, before the combat had terminated fatally to one of the combatants, some Numa Pompilius, of sufficient authority to make so great an innovation, interposed and induced the parties to refer the case to arbitration ',* so in the case of wrong done by man to man. ' The magistrate,' says Mommsen, 2 ' here interposes between the contending parties as a mediator : on the one hand he settles or causes to be settled the question of fact ; on the other hand, when a wrong has been proved, he either gives self-help its course, or else enjoins the injured party to renounce it on considera- tion of receiving compensation.' In the execution likewise of the penalty, the private and personal origin of the vengeance still appears ; the magis- trate acts only indirectly, and his action is ancillary to self- help. In the rare cases where the penalty of death follows condemnation in such private suits — the most notable are those of false witness 3 and of theft committed by a slave caught red-handed — death was inflicted by the primitive form of lynch law, and the offender was flung from the 1 Poste, Gaius, p. 411. * Strafrecht, p. 905. * Aulus Gellius, Noct. Att. XX. 1. 53; in § 7 of the same chapter he mentions the bribed judex as capitally punished. 42 SELF-HELP CII. Tarpeian Rock — ' the usual form of execution, where in- fliction by a magistrate is excluded.' x In the case of per- sonal injuries, Mommsen's German experience supplies him with an interesting parallel. 2 ' When the injured person demands it, just as the so-called Courts of Honour, in the re-barbarising of our nation, which is now beginning, license the duel, so the Roman courts of justice granted leave on the part of the State for the aggrieved to proceed against the aggressor by way of self-help, on the principle of " Be done by as you did ", Si membrum rupit, ni cum eo pacit, talio esto.' Thus the criminal law still to a great extent ' rested on the blood-revenge '. 3 But such practice did not long sur- vive the legislation of the decemvirs. Either the State itself undertakes the punishment of crimes (there are notable in- stances even in the Twelve Tables), or in the development of the private criminal suit ' self-help is completely set aside, and every wrong is subject to the compulsory compensation prescribed by the State for the outraged person'. 4 Aulus Gellius' friend, the jurist Sex. Caecilius, is represented as arguing that the permission of talio in the Twelve Tables was only granted when the culprit had refused to offer a proper reparation, ' praesertim cum habeas facultatem paciscendi, et non necesse sit pati talionem nisi earn tu elegeris.' 5 According to this the plaintiff is assumed not to refuse a reasonable satisfaction. He cannot say, with Shylock, — What if my house be troubled with a rat, And I be pleased to give ten thousand ducats To have it baned ? 1 Mommsen, Strafrecht, p. 93 1 . * Ibid., p. 62. For references see Bruns, Pontes'', p. 29. 3 Ibid., p. 940. ' Ibid., p. 905. • Aulus Gellius, Nod. Att. XX. 1. 36. Ill TALIO AND COMPENSATION 43 Caecilius probably antedates the legal situation : it is more likely that at first the decisive word lay with the injured man, and that the pressure which the judge could apply to induce him to ' take thrice thy money, bid me tear the bond ', gradually increased until it became compulsion. It is not difficult to reconstruct the lines along which the progress of obligatory composition must have advanced. The exaction of the talio carries with it the defect of its origin in anarchical self-help. The ancient practice seems to be embodied in the words x ' si quis membrum rupit aut os fregit, talione proximus cognatus ulciscitur '. But this was to lay a heavy task on the injured man and his kindred. What if they were weak, poor and without influence, while the culprit had a strong body and a powerful family connexion ? In such a case, from the time when the State emerged from anarchy, the king or the consul would doubtless lend his magisterial force to help the weakness of the aggrieved. 2 1 Priscian, Inst. Gramm. Book VI. ch. 13. § 69 ' quidam veterum " ossium " preferebant, Cato tamen "os" protulit in IV Orig. "si quis," ' &c. (as in text). See Bruns, Fontes ', p. 29. 1 This is vigorously denied by Danz (Sacrale Schutz, p. 228), who maintains that the action of the State is purely negative and per- missive ; the injured person avenges himself ' how he can and how he will '. I would admit that there is no record of the punishment being carried out by the public authorities, or even of their assisting the private man in his execution of vengeance ; but it must be remembered that there is no specific instance recorded of such ven- geance being carried out at all. Danz (Sacrale Schutz, pp. 48, 231) attributes the same passivity to the Roman gods, and thinks that the utmost they can do is to withdraw their protection from the offender. That was certainly not the belief of the Fetial, who prayed — ' turn illo die, Juppiter, populum Romanum sic ferito ut ego hunc porcum hie hodie feriam' (Livy, I. 24. 8). That the magis- trate does not always shrink from acting on his own account is shown by the circumstance that his lictors scourge the condemned thief before he is handed over to the aggrieved person (see Bruns, Fontes ', p. 32). In case the thief is a boy the whole punishment is ' praetoris arbitratu verberari '. 44 SELF-HELP CH. But this assistance again might easily be withdrawn if the plaintiff had turned a deaf ear to the persuasions of the judge who suggested the acceptance of compensation. Even in cases where the defendant had put himself in the wrong by refusing to offer an adequate solatium, the court soon discovered a more circuitous method of coercion by fining him in a definite sum, ' si reus qui depecisci noluerat judici talionem imperanti non parebat, aestimata lite judex hominem pecuniae damnabat.' 1 The plaintiff is now in the position of a judgement creditor, and may proceed per manus injectionem. This again is a method of self-help, for it may be initiated, non expectata judicis auctoritate. 2 But here comes a distinction. In case of matters still unadjudicated it is allowed to the defendant to resist seizure, manum depellere, but if the claim is founded on a previous judgement, the formula runs, ' tibi pro judicato manum injicio ' ; in that case Gaius tells us, 3 ' nee licebat judicato manum depellere.' This, I think, can only mean that in case of resistance the officer of State will lend his force to compel submission ; * otherwise the reign of law would in the last resort result in chaos. Thus the high-handed offender will be reduced either to be sold across the Tiber as an addictus for the debt, or to pay the sum in which he has been condemned. For injuries not involving the actual loss of a limb, the Twelve Tables already dispense with the talio in favour of a fixed penalty, 300 asses for a broken bone, 25 asses in all other cases. Later on, the fixed sums are in turn replaced under the praetors' edict by an assessment of damage, ' praetores postea hanc (legem) abolescere et relinqui censuerunt, in- 1 Aulus Gellius, Noct. Att. XX. 1. 38. 2 Servius, On Virgil, Aeneid, X. 419. See Danz, S aerate Schutz, p. 49. See also below, p. 54. 3 Gaius, Inst. IV. 21-25. For the converse case see below, p. 63. ' See below, p. 53, note 3. Ill TALIO AND COMPENSATION 45 juriisque aestimandis recuperatores se daturos edixerunt.' x In the meanwhile the private infliction of the talio, an in- fliction hardly consonant with the social order of a decently- civilized state, has silently dropped out of the alternatives presented to the parties. The result of these changes in judicial practice is well summed up by Mommsen. 2 ' From that time forward capital punishment by private suit is set aside, and never reappears. The conception of the ransom money, which has from the first entered with effect into the procedure for crimes against individuals, henceforth reigns supreme in this sphere.' Those crimes which the Romans desired to punish other- wise than by pecuniary damages were removed by them to the sphere of public justice. As Mommsen says, ' this practically comes to the abolition of the blood feud.' 1 Labeo, apud Gellium, Noct. Att. XX. i. 13. See below, p. 219, note 1. * Strafrecht, p. 941. CHAPTER IV THE LEGIS ACTIO SACRAMENTI Instead of the appeal to force, the contending parties now challenge one another under a form, the provocatio Sacra- mento, which, as Gaius tells us, 1 constituted a generalis actio, applicable in all cases where no separate procedure had been prescribed by some special law. Originally, doubtless, the device of a magistrate of great originality and influence, the procedure gradually crystallized, and what was at first a derogation from the inherent rights or mights of the indi- vidual in favour of the representative of public peace and order, becomes by subsequent recognition an actio legis. The precise nature of the sacramentum thus appears as a highly interesting subject of inquiry ; and since the plan of this book lends itself to the criticism of any disputed points which may arise by the way, I will now proceed to discuss some theories which have been framed concerning the mean- ing and usage of the word. The most important of these is due to Danz, 2 and is sup- ported by Huschke, 3 Eisele, 4 and Greenidge ; 5 but I find the clearest exposition in Girard, and in the following discussion I propose to deal in the main with Girard's presen- tation. 6 According to this hypothesis the sacramentum is an oath which each party took to the righteousness of his plea ; 1 Gaius, Inst. IV. 13. * Danz, Sacrale Schutz, p. 151 seq. s Huschke, Multa und Sacramentum, p. 353 seq. ' Eisele, Romische Rechtsgeschichte, p. 218 seq. 6 Greenidge, The Legal Procedure of Cicero's Time, p. 53. " Girard, Org. Jttd., p. 41. CH. IV SACRAMENTUM AND OATH 47 a false oath would render him sacer to the god invoked, and so lead to his death. The supposition is that originally the penalty was inflicted without any regard to extenuating circumstances ; 1 but that with the advent of humaner conceptions, brute victims might be substituted in case the error was not wilful, just as by the Law of Numa in case of accidental homicide the slayer offered a ram instead of being himself put to death. Each party therefore to the suit provides beforehand the beasts (or the money for their purchase) which shall cleanse him from guilt in case he turns out to have sworn wrongly by inadvertence. The analogy is suggested of the hostiae succidaneae, which were provided to supply the place of those which had failed to be offered up owing to any accident in the public sacrifices ; and the analogy would be the closer if we could believe that these were sometimes even immolated beforehand (hostiae -praeci- daneae) 2 to compensate for any irregularities which might hereafter chance to leave a gap in the promised number of victims. Girard 3 further believes that we have here the justi- fication for the interference of the magistrate in these private concerns. The king would not, it is supposed, or at any rate need not, touch the controversies between man and man as such, but when two contradictory oaths have been sworn, it is his business to save the community from the religious This hypothesis is, of course, inconsistent with that of the volun- tary submission of the dispute by the parties to the judge, as set forth in the last chapter. Maine's ' vir pietate gravis ' would have a hard task indeed in persuading the disputants to stake their lives on the issue of his decision. * So Girard (Org. Jud., p. 41, note). But Aulus Gellius (Noct. Att IV. 6, 7), while interpreting the succidaneae in Girard's sense, hardly bears him out as to the pyaecidaneae. These are described as offered before the main sacrifice, not with a view to possible future omissions, but to get rid of pollution which might have already accrued. 8 Girard, Org. Jud., p. 40; likewise Danz, Sacrale Schutz, p. 166. 48 ACTIO SACRAMENTI CH, pollution which must needs have been incurred on the one side or the other. Thus, according to him, 1 ' the pro- cedure of the sacramentum bears evidence that at least in the most normal cases, alike in actions respecting property and in the ordinary personal actions, the magistrate already invested with the prerogatives of a criminal judge was in- vested with those of a civil judge by an expedient which, being derived from the religious powers of the king, is at least anterior to the fall of the kingship.' What are we to say to this ingenious and seductive theory ? It seems at first sight so plausible, so complete and so self-consistent, that one shrinks from spoiling its symmetry by adverse criticism. Still there is another side to the question. First as to the conclusion ; the hypothesis that the magistrate felt himself constrained to intervene to punish a false oath is contrary to all we know about the Roman practice or indeed about the early practice among all peoples in regard to perjury. The Roman people could incur the wrath of Heaven only by the breach of an oath taken by the representative of the people, the Fetial. Per- jury by a private man is a matter which from first to last is left to the vengeance of the gods, and the law never threatens secular penalties against the offender. 2 Tiberius' refusal to make punishable a false oath by the deified Augustus is justified by his appeal to the unquestioned analogy of an oath by the gods of Olympus ; ' Jusjurandum perinde 1 Girard, Org. Jud., p. 45. * The exception which proves the rule is the oath per genium or per fortunas of the living emperor, who is still a man, and therefore liable to be injured by his name being taken in vain, just as the Scythian king in Herodotus (IV. 68) was supposed to sicken if any one swore falsely by his hearth. See also below, Vol. II, p. 167, note 2. In the special case of the f reedman's oath cited above on p. 10, note 4, the law enforces the performance of the promise by civil methods, but does not prescribe punishment for the breach of oath as for a crime. IV PERJURY 49 aestimandum quam si Jovem fefellisset ; deorum injurias dis curae ' ; x and Cicero gives as the penalties for perjury- destruction from Heaven, but from man only blame and contempt. 2 Nor will it serve to represent 3 such utterances as merely the outcome of the scepticism of later days. If the contrary doctrine of the duty of the State had ever obtained, we should certainly have found some survival of it embodied in the laws and institutions of Rome. But of such survival there is not a trace. If the conclusion is thus barred, the premises in their turn will be found not to stand the test of careful investigation. The solution of antiquarian problems by explanations drawn from religious analogies is a most fascinating process, and for that very reason it tempts us to exaggerate and is apt to lead into fanciful theories. It is of course true that in some instances a beast is substituted when, for whatever reason, the deity is disappointed of a human victim. Abraham's ram caught in the thicket would be a case in point ; so would be the expiatory offerings ordered after Horatius' acquittal, 4 or whenever the man devoted to death in battle survives, when he ought to have perished. 5 There are other instances again, where this is a possible but not a certain explanation. When the harlot who has touched the altar of Juno is ordered to let down her hair and sacrifice a ewe-lamb, this may be the redemption of her life, but it is at least as likely to have been merely a fine and an act of contrition. 6 Again, under 1 Tacitus, Annates, I. 73. 5- J Cicero, de Legibus, II. 9. 22. ' As does Girard, Org. Jud., p. 55. ' Livy, I. 26. 13. 6 Livy, VIII. 10. 12. " Festus, s.v. paelices. This case and the next are cited in support of Girard's theory. With the sacrifice of the lamb to atone for an indecency, we may compare the law of Numa forbidding a widow to remarry within ten months from her husband's death : fj be irponpov yaiujBeliTa (3oC» eyM/iova naredvcv, ckcivov voiiodenja-avTos (Plutarch, Numa, 12. 2). mo E 50 ACTIO SACRAMENTI CH. Numa's law, the slayer by accident is required ' offerre in concione agnatis arietem ', or ' subigere arietem ', and Brunnenmeister 1 and Girard 2 may be right when they regard only Labeo's explanation 3 of subigere — ' dare arietem qui pro se agatur caedatur ', confirmed as it is by Servius' description 4 of the ram 'qui antea pro domino capital dari consueverat ', and when they reject the other comment of Servius, 5 where the ram is said to be given ' pro capite occisi '. But here again the second reason may after all be the correct one ; and when the relatives renounced the blood revenge, the ram may have been pre- sented to them as a formal weregild for the dead man, and sacrificed perhaps to still his ghost and prevent his walking the earth. 6 Primitive religion has ' reasons as plenty as blackberries * for its various manifestations, and sacrifice is no exception to the rule. Sometimes the sacrifice is only symbolic of the divine vengeance — such is the smiting of a pig by the Fetial concluding a Treaty, 7 and the sacrifice of victims which we find so frequently in connexion with an oath. Sometimes the motive for sacrifice was the belief that the dead could drink the blood of the victims, as the ghosts did in the Odyssey, and that the deities of the sky drew pleasure and nourishment from the steam of the altars. This last notion meets us in testimonies so far apart as the record of Noah's 1 Brunnenmeister, Tddtungsverbrechen, p. 158. 2 Girard, Org. Jud., p. 32. 3 Festus, s.v. subigere. 4 Servius, On Virgil, Georgics, III. 387. 6 Servius, On Virgil, Eclogues, IV. 43. If I understand him rightly, this is the view of Rubino (Romische Verfassung, note on p. 465 ). 7 Livy, I. 24. 8 (see above, p. 43, note 2), and Homer, Iliad, III. 292 ; XIX. 266, the belief is enshrined in the common Greek phrase Spun T€jJtV€LV. IV REASONS FOR SACRIFICE 51 sacrifice 1 on the one hand and the plot of Aristophanes' Birds 2 on the other, and the Roman who approaches Jupiter or Janus with the words ' be strengthened with this dish ', 3 seems to subscribe to the same doctrine. The notion of feeding the gods might be used by similar stretches of fancy to explain every phenomenon, just as the notion of expiatory substitution has been used. But all such processes of argument are dan- gerous, and each case requires rigorous sifting. In the present instance Girard certainly goes too far, when to his assertion that the ' fines are employed for expiatory sacrifice, . . . that for a false oath in a sacrifice to the god whose name has been taken in vain ' he adds in a note, 4 ' The proof of this is found in the employment for sacrifice of the animals deposited by the loser in the procedure of the Saw ■amentum.'' To me it seems that this falls very far short of proof. It is a stronger recommendation of the theory that it reduces to a common term the various senses of the word sacramentum. Sometimes undoubtedly it means an oath. ' Sacramento dicitur,' says Festus, 5 ' quod jurisjurandi sacratione interposita actum est.' Hence comes the famous usage by which the word denotes the military oath which bound the soldier to his commander. It may be fairly 1 ' And the Lord smelled a sweet savour, and the Lord said in His heart, I will not again curse the ground any more for man's sake.' Gen. viii. 21. a The Birds establish a blockade in the middle sky, cutting off the sacrificial vapours from the gods, and so starve them into sub- mission. 3 ' Macte fercto esto ', ' macte vino esto '. — Cato, de Re Rustica, 134. * Girard, Org. Jud., p. 33, note 1. 6 Festus, ad voc. (Bruns, Fontes'', App., p. 33). The sentence here quoted is certainly correct, as it is confirmed by the paraphrase of Paulus Diaconus, ' Sacramentum dicitur quod jurisjurandi sacra- tione interposita geritur.' The rest of this fragmentary article of Festus is very doubtful; but see below, pp. 53 and 54, note 1. E2 52 ACTIO SACRAMENTI CH. presumed that in this case the oath is called sacramentum, because the mischief which the swearer imprecates on his own head, if the fides servataque ferro militiae pietas 1 be found wanting in him, is that he shall become a homo saccr. If the ' actio sacramenti ' can be explained in the same way we have at least a gain in symmetry and elegance. The question is whether the passages of Festus and Gaius, on which our evidence rests, really admit of this identifica- tion. In the discussion of the matter I must for the moment leave Girard, and deal directly with the detailed arguments of Danz himself. It will be best to begin by quoting at length the definitions given by Festus. The words in italics are the conjectural supplement of Muller. ' I. Sacramento dicitur quod juris jurandi sacrati-one * interposita actum est . unde quis sacramen-to dicitur interro- ' gari, quia jusjurandum interponitur. Cato in Q. Thermum *de "K.hominibus "Atque etiam a^-erant ne mala, fide apparere-t ' " scelera nefaria fie-n noscentis ut sacrame-nto traderentur, * "lege est [aestimarentur, 2 Muller]." ' ' II. Sacramentum aes significat, quod poenae nomine ' penditur, sive eo quis interrogatur, sive contendit ; 3 id in ' aliis rebus quinquaginta assium est, in aliis quingentorum * inter eos, qui judicio inter se contenderent. Qua de re lege ' L. Papirii Tr. pi. sanctum est his verbis : Quicunque Praetor 'post hoc f actus erit, qui inter cives jus dicet, tres viros 1 Lucan, Pharsalia, IV. 498. Cf. Livy, X. 38. 3. 2 Perhaps ' ut turpi sacrame-nto traderentur lege est cautum ' ; see below, p. 54, note 1. Compare the ' turpissimum auctoramentum ', of gladiators (below, p. 12 1), called also 'sacramentum' in Petronius, Satyricon, ch. 117. 5. 3 i. e. whether a man is called on to plead (as defendant in an action for tort) or is a party to a suit (in a case of disputed ownership). IV MEANING OF SACRAMENTUM 53 'Capitales populum rogato, hique tres viri capitales quicunque ' posthac fa-cti erunt, sacramenta ex-igunto judicantoque, ' eodemque jure sunto, uti ex legibus plebeique scitis exigere, ' judicare que fessef esseque opportet. Sacramenti autem 'nomine id aes diei coeptum est, quod et propter aerarii 'inopiam et sacrorum publicorum multitudinem consume- ' batur id in rebus divinis.' The lines following the words actum est in the first article are very fragmentary and obscure. We may not be able to reconstruct Cato's words ; x but we know from Aulus Gellius 2 that the Ten men mentioned were the officers of some allied State, who had been flogged by Thermus. It is therefore impossible to suppose that the matter in hand can be the same as that dealt with in the lex Papiria quoted in the second article. This lex Papiria is undoubtedly concerned with the Triumviri capitales and seems to attribute to them the collection on behalf of the State of the penalty-money forfeited by a van- quished suitor after a lawsuit has been concluded. 3 This is 1 I give for what it is worth my own solution on p. 52, note 2 and p. 54, note 1. 2 Aulus Gellius, Nod. Att. X. 3. 17. 3 Lest we should be led from the use of the word ' judicanto ' to suppose that the /// viri capitales have a part in the actual decision of the main lawsuit, we must bear in mind that all officers connected with finance have the power of deciding judicially on any legal point which may arise in the discharge of their executive functions (see Mommsen, Staatsrecht, I 3 , p. 169 seq., and Girard, Org. Jud., p. 179, note); the word 'judicanto' is inserted merely to endow these particular magistrates with the usual powers. Huschke suggests with much probability that they were exercised whenever the defen- dant (supported by sureties) denied that he had been really cast in his suit (Multa und Sacramentum, p. 478). For certain other sup- posed judicial functions of the III viri see Mommsen, Strafrecht, p. 180, note 1 ; Staatsrecht, II 3 , p. 599, and Girard, Org. Jud., p. 177. From two passages of Plautus (Persa, 70, and Truculentus, 762), in which it appears that the summary legis actio per manus injectionem. was available in cases of usury (see also Gaius, Inst. IV. 23) and the 54 ACTIO SACRAMENTI CH. the first point on which I am at issue with Danz, who, finding the phrase Sacramento interrogari x in both articles, hurries to the conclusion that ' there can be no doubt whatever that this second passage of Festus speaks of the same transactions as are spoken of in the first passage ', and accordingly claims 2 to treat the two articles as a single whole. Danz next transforms Festus' first statement that all business transacted under oath is said to be transacted Sacra- mento into the converse, that all transactions sacramento are transactions under oath. ' Thus sacramento agere is, according to Festus, nothing else than agere " under or with fraudulent supposition of children, coupled with the mention of the III viri in the first passage, it is inferred that after the praetor had settled the preliminaries in jure he would refer the judicium to the triumvirs. I think it more likely that they were called in to regulate the summary arrest, perhaps until the next dies fastus, when the parties could be brought before the praetor, whose presence seems to have been necessary for the formal inception of this, as of every legis actio except the pignoris capio (Gaius, Inst. IV. 29). In the lex Urso- nensis (chap. LXI, Bruns, Fontes 7 , p. 123) manus injectio seems to be jure. Preliminary steps, however, may be taken by anticipation ' non ■expectata judicis auctoritate' (see above, p. 44), and here the action of the triumvirs would naturally be invoked, as we find it below (Vol. II, p. 24, n. 2, and p. 151, n. 3) in the preliminaries to a summons for murder before Sulla's quaestio inter sicarios. There seems no reason to suppose with Mommsen and Girard (loc. cit. ) that these triumvirs ever had to find a verdict for their superior. 1 I have defined above (p. 52, note 3) what I take 'sacramento interrogari ' to mean in the second article. In the fragmentary first article ' interrogari ' may perhaps be equivalent to ' rogari ' which is used of conscription (Livy, XXXV. 2. 8 and Caesar, Bell. Gall. VI. 1.2); and we may conjecture that this and the more significant phrase, " sacramento traderentur ', are to be explained from the concluding paragraph of Gellius' note (Noct. Att. X. 3. 19). Cato then would be telling how, by reason of their treason in the Hannibalic War, the ' Bruttiani ', who were the instruments of Thermus' cruelty, had come to be bound (like the Gibeonites by Joshua) to the degrading sacramentum, which made them serve as drudges and lorarii, not as soldiers — ' ut turpi sacramento traderentur lege est cautum (if the emendation which I have suggested above (p. 52, note 2) be admitted). * Sacrale Schutz, pp. 155 and 172. IV INTERPRETATION OF FESTUS 55 "the employment of an oath ".' x Further, recognizing rightly enough that the words ' sacramenti nomine id aes dici coeptum est ' imply that we are dealing with a later and secondary application of the word, he proceeds again to invert Festus' argument. What Festus says is that the money staked by way of legal wager (which presumably had at first some other name, if it had a name at all) began to be called sact 'amentum when it came to be spent in sacrifices. Clearly he looked on the actio by way of legal wager as already existing before the word actio sacramenti came to be applied to it. Danz, 2 on the other hand, tries to make him say that the phrase actio sacramenti is prior to the legal wager, and in that case must originally have meant something entirely different, namely ' proceedings under oath '. Going one step further, Danz claims the right to substitute in the second article of Festus for the word sacramentum the sup- posed definition of the word which he has extracted from the first, 3 and this leads him to a translation, which is strange indeed, of the words ' Sacramentum aes significat, quod poenae nomine penditur, sive eo quis interrogatur, sive con- tendit ; id in aliis rebus,' etc. This he renders, ' " Oath " has as its secondary meaning the money which is paid as a penalty, when any one has been called on to plead or has been party to a suit under oath (eo). This oath-money (id) amounted to,' etc. A theory which logically leads to such extraordinary contortions of the text may well be held to be self-condemned. It would indeed reduce Festus' second article to nonsense. If Festus had really meant sacramentum in this sentence to be taken in the sense of ' oath ', he would have no occasion for any further explanation why the word sacramentum or 1 Sacrale Schutz, p. 154. 2 Ibid., p. 156. 3 Ibid., p. 174. 56 ACTIO SACRAMENTI CH. ' oath-money ' came to be applied to the deposit. In that case it would have been so called for the simple reason that so it was. But Festus in fact thinks it necessary to hunt for another and by no means obvious explanation, and finds it in the accidental circumstance that from the poverty of the exchequer this money came to be expended in providing for the public sacrifices. A similar straining of the sense appears in Danz's attempt to bring into line with his theory Gaius' statement about the challenge — ' Quando injuria vindicasti D aeris Sacramento te provoco,' x which he would take 2 as equivalent to ' jure- jurando majoris piamenti interposito te provoco ' ; 'I challenge your claim under my oath, an oath which if not justified, is to be expiated by sacrifices to the amount of 500 asses.' It is an obvious objection that, if this interpre- tation were correct, the next step would naturally be for each party to take the oath, but that of such an oath as part of the procedure there is not a trace in any of our authorities. In answer to this Danz 3 assumes that the meaning of ' oath ' was so firmly and inextricably rooted in the word sacra- mentum that the mere mention ' provoco te Sacramento ' was held by a legal fiction to imply that the oath was actually taken — as we should say in England, ' the presumption of law was that the oath had been sworn.' Danz 4 is able to cite abundant contrivances whereby a circumstance inconvenient actually to produce was replaced by an ingenious fiction. An interesting case is that of the ovis cervaria, where the sacrifice of a deer was accom- plished by calling a sheep cerva for the occasion, 5 and another is the device of Brutus, 6 who offered to the gods 1 Gaius, Inst. IV. 16. The adversary replies ' similiter ego te '. 2 Sacrale Schutz, p. 175. 8 Ibid., p. 240. ' Ibid., p. 237 seq. 5 Festus, s.v. cervaria ovis. 6 Macrobius, Sat. I. 7. 35- IV JUDICIAL OATHS 57 ' heads ', as required, but heads of poppy and garlic. But in the present case no such necessity appears. An appeal to heaven on the justice of your cause is a perfectly easy ceremony and is a natural and obvious way of commencing a legal contest. It was a necessary preliminary to the trial by combat in mediaeval courts, 1 and to the trials before the standing jury-courts of the later Roman Republic, ' si dejuraverit calumniae causa non postulare.' 2 If it had ever found a place in the actio sacramenti, it is most unlikely that it should have fallen into desuetude. It must be remembered that every act in the elaborate ritual, even when that act related to conditions which were fictitious or whose practical consequence had vanished, was jealously retained as a sur- vival. 3 Can we believe that the act of taking the oath, which if it existed at all must have been the very kernel of the whole transaction, could have been obliterated and only left to be inferred from an incidental mention ? All these difficulties arise merely because Danz insists on reading his own theory about saw ■amentum into the texts. No one would have thought of such an interpretation as that which I quoted above of the second article of Festus, unless he had brought to the elucidation of the Latin a mind saturated with the conviction that sacramentum must always 1 This was done by the parties grasping hands, of which possibly a survival may be seen in the hand-shaking preliminary to a prize- fight. Poste (Gaius, p. 413) throws out the suggestion that this may be the meaning of ' manum conserere in jure ' at Rome. But the passage of Ennius — Non ex jure manum consertum, sed mage ferro Rem repetunt, clearly postulates the contrast between a fictitious struggle and a real one. There can be no doubt, I think, that manum conserere means ' to fight '. 2 Lex Acilia, verse 19; Bruns, Fontes*, p. 62. 3 See above, p. 38. 58 ACTIO SACRAMENTI CH. mean an oath. Put this prepossession aside, and there is no difficulty in the passage as it stands. It simply says 1 that the money wagered in an action at law is called sacra- mentum, because it is spent in sacrifices. In a similar sense of the word Cicero gives, as the short title of the lex Atemia- Tarpeia 2 which limited the magistrate's power of fining, ' de multae sacrament o,' 3 ' concerning the number of victims to be paid as fines.' The word sacramentum then has clearly two distinct meanings, dealt with in two distinct articles of Festus, and both amply justified by etymology, first an oath in which sacratio is invoked, secondly, animals destined for sacrifice or money to be used in procuring them ; and it is in the second sense that the word is used in the phrase actio sacramenti. Festus alone gives us this etymology of the word, but Varro * and Gaius 5 are at one with him in describing the sacramentum as a penalty to be paid by the loser in a suit. If we ask, why should any such money be paid or any such wager required ? Maine 6 would answer that it was originally to remunerate the umpire for his trouble and loss of time, and so ' came to be paid to the State which the praetor represents '. He cites as an illustration a curious passage in the Trial Scene from the Shield of Achilles : ' The judges 1 Leaving out the sentence about the lex Papiria, which is parenthetical. 2 See Dionysius Halicarnasensis X. 50. " Cicero,de Republica,II. 35. 60. I agree with Mommsen's conclusion that there is no occasion to alter the text of Cicero into ' de multa et sacramento ', as most modern critics do, though I do not understand Mommsen's argument (Staatsrecht, II 3 , p. 69), and am not sure how he means to translate ' de multae sacramento '. Rubino (Romische Verfassung, p. 123, note) seems to take it as I do. 4 Varro (de Lingua Latina, V. 1 80) says that the money wagered was called sacramentum because it was deposited in a temple. s Gaius, Inst. IV. 13 and 14. 6 Maine, Ancient Law, p. 376. IV THE LEGAL WAGER 59 spoke their dooms by turns ; and in the midst there lay two talents of gold, the prize of him who judged most rightly,' 1 which Maine interprets to mean, that the money goes ' to the judge who shall explain the grounds of his decision most to the satisfaction of the audience '. 2 Most modern critics seem to adopt this rendering of the passage from the Iliad, and on the whole I am inclined to follow them, though I do not think that the matter is beyond dispute. However this may be, the important point is that as early as Homer the parties to a suit deposited or staked a sum over and above -the matter of litigation, and further that there is no hint either of oath or sacrifice in connexion with this deposit. The same is the case with the Attic irpyraveia, or court-fee, which answers in all other respects to the Roman sacra- mentum. This is a strong confirmation of what the words of Festus (' Sacramenti nomine id aes dici coeptum est ') seem to indicate, that the spending of the deposit money in sacrifices is a practice of later date than the legal wager itself. For my own part I see no difficulty in being satisfied with the account of Festus as it stands, that the State wanted the money to defray its costly ritual, 3 nor in accepting the explanation of Festus, Gaius, and Varro that the State took 1 Purves's translation of Homer, Iliad, XVIII. 508 : ra dofiev os Hera roicn Suojv Wivrara cinoi. * Or perhaps to him whose opinion is confirmed by the majority of the court. This last interpretation has been suggested to me by Professor Vinogradoff, who cites as a parallel the custom in iEthelred's Law of Wantage (III. 13. 2) of fining the jurors who voted ' wrong ', that is, against what proved to be the decision of the majority. Possibly this custom may contain the germ of the unanimity required irom the English jury. 3 We may compare the provision of the lex Ursonensis (chap. LXV ; Bruns, Fontes 1 , p. 124), that moneys, exacted as a penalty for failure on the part of contractors to fulfil their bargains with the corporation, shall be used for the public sacrifices and for no other purpose. 60 ACTIO SACRAMENTI CH. it as a penalty from the litigant who was adjudged to be in the wrong. 1 The silence of Mommsen shows that he gave no credence to the explanation of the phrase actio sacramenti which derives it from an oath taken by the parties. 2 Girard 3 himself allows that the consciousness of the sacramentum, as an oath followed by an expiation, must have died out before the time (at least as early as the Twelve Tables) when the sacramentum was fixed at a lower rate in case of a plea for the liberty of one kept as a slave. He sees that such a lowering would be inconsistent with the idea of expiation, though it fits in well enough with the conception of a legal wager — a ' poena temere litigantium '. 4 It was obvious policy, as Gaius points out, 5 to modify this so as not to deter the assertor of liberty by the magnitude of the stake. By this admission Girard severs himself from Danz's manipula- tion of the passage of Festus. For if sacramentum in this connexion had lost all reference to the notion of an oath by the time of the Twelve Tables, it would be absurd to attribute such a sense to the word in the Augustan Age when Verrius Flaccus 6 wrote. Girard is therefore consistent in com- pletely ignoring Danz's argument, though he accepts his conclusion on other grounds. If we take the second article of Festus in its obvious sense as authoritative, as I have ventured to do, no difficulty 1 ' Quod poenae nomine penditur', Festus (foe. tit.). 2 Mommsen's view (Strafrecht, p. 903, note 2) is substantially thatof Festus, Gaius, and Varro. ' The sacramentum is undoubtedly con- sidered as a penal forfeit for an unrighteous plea ; it belongs to an epoch which estimated and punished wrong not in itself, but according to certain outward signs which served as legal presumptions.' 3 Girard, Org. Jud., p. 55. - The phrase is borrowed from the heading of a Title in Justinian's Institutes (IV. 16). '' Gaius, Inst. IV. 14. * See above, p. 3, note 1. IV THE JUDEX 6l whatever remains in the 'Sacramento D. aeris te provoco'. The sole phrase which might perhaps be more obvious on the other hypothesis is the form of verdict 1 that the sacramentum of one of the parties is justum. Here I think that we are not doing too much violence to the words, if we assume that to say that ' a man's stake is just ' is merely a short way 2 of saying that ' the plea on which he has staked his money is a just one '. This wager of a sacramentum, like its later substitute the sponsio, proved useful as a matter of judicial machinery in providing a clear question to which a simple ' yes ' or ' no ' could be given, the question namely whether a man's sacramentum was or was not justum. This was of little importance while the magistrate decided everything him- self, as according to Cicero 3 the king did at Rome. By the time of the Twelve Tables, however, we find that it is the custom, possibly the duty, of the magistrate to refer this or that point in dispute to the decision of one or more jurymen. It must not be supposed that the judex is a delegate or representative, set to act in the praetor's stead and clothed in his powers. He is merely a temporary creation of the praetor's will, a private man on whom the magistrate, by virtue of his imperium, chooses to lay the task of finding an answer to some question, whether of law or of fact, which the magistrate thinks fit to put to him. 4 According to the original conception of the magistracy such a reference is by no means necessary. The magistrate himself is judex. Livy 5 tells us that some interpreters held that the judex, 1 We gather this from Cicero, pro Caecina, 33. 97. 2 Like Caelius's ' calumniam jurare ' in Cicero, ad Familiares, VIII. 8. 3, to indicate what is expressed in full in the lex A cilia, verse 19 ' si dejuraverit calumniae causa non postulare '. Bruns, Pontes', p. 62 . 3 Cicero, de Republica, V. 2. See below, p. 63, note 1 . ' For the distinction between jus and judicium see below, pp. 73-76. ' Livy, III. 55. 11. 62 ACTIO SACRAMENTI CH. whose person is protected by the Valerio-Horatian law of 449 B.C., is no other than the consul himself. The consuls are certainly designated by this name in the old formula pre- served by Varro, 1 ' Omnes Quirites ite ad conventionem hue ad judices,' and in one verse (19) of the lex Acilia repetun- darum the presiding praetor is designated as ' judicem in eum annum quei ex hac lege f actus erit '. 2 Cicero says of his chief magistrates that they may be called praetores, judices, or consules. Side by side with them is the juris disceptator ; he is to be called only praetor, but his function is, ' qui privata judicet, judicarive jubeat.' 3 How did the change from judicare to judicari jubere come about ? There is the fullest evidence for laws compelling the magistrate to submit his sentence in public procedure to the judgement of the People, but none for any general law compelling him to refer questions of private rights to a juror. 4 I cannot believe that the silence of our authorities is accidental. I think that it points to the conclusion that the practice did not rest on any specific enactment, but that with the increase of business in the Roman law-courts it grew up of itself. Thus the question of the precise date of the change, which has been attributed sometimes on the authority of Dionysius 5 to 1 Varro, de Lingua Latina, VI. 88 ; Bruns, Fontes*, App., p. 58. a Bruns, Fontes*, p. 62. Likewise in verse 72 (Bruns, Fontes 7 , p. 70). * Cicero, de Legibus, III. 3. 8. It is doubtless true, as Greenidge (Proc, pp. 17, 18) points out, that the reference to an arbiter accepted by both parties is a natural accompaniment of the regime of self-help ; but we have already seen that the evidence of the legal ritual points to the praetor himself as the inheritor of the position of the ' vir pietate gravis ' who allays the strife. We shall find later on (p. 182) the phrase ' in sacrum j udicare ' used of the magistrate. See also below (p. 76, note 3 ), and especially the passage from Mommsen there quoted. 4 Mommsen (Strafrecht, p. 56 and Staatsrecht, 1 3 , p. 228) and Girard (Org. Jud., p. 52) seem too much inclined to put the two on the same footing. 6 It is doubtful, however, whether Dionysius (IV. 25) refers to the IV MAGISTRATE AND JUDEX 63 Servius Tullius, sometimes by a large superstructure on the words of Cicero 1 to the creation of the consulate, becomes unmeaning. Though a gap in the Institutes of Gaius forbids us to say precisely how the reference to a judex was welded into the ceremonies prescribed for the actio sacramenti, sufficient remains of this section 2 to prove (as I think) that the author is still speaking of the actio sacramenti in his repeated mention of the judex, and of the intervals prescribed for his nomination and his entry on his office. 3 It is probable, then, that such a reference had become an integral part of the procedure by the time that it was stereotyped in the Twelve Tables, and that henceforth 4 in this, the principal actio legis, the praetor would always be found judicari jubere and not judicare. The proceedings in the ' actio per manus injectionem ' would lead up to the same result : if it was not the corollary to a previous judgement, the de- fendant was allowed to resist seizure — ' depellere manum et pro se lege agere ' ; 5 and this probably means (though it is privatus judex or to the delegacy of jurisdiction to subordinate magis- trates. 1 See Girard, Manuel, pp. 20, 21. Cicero says (de Republica, V. 2) : ' Nee vero quisquam privatus erat disceptator aut arbiter litis ; sed omnia conficiebantur judiciis regiis.' 2 Gaius, Inst. IV. 15. In a later section (17 a), where some of the phrases (notably the thirty days) recur, it seems rather as if Gaius were on the subject of the actio per condictionem in what he describes as its original, as opposed to its later form. 3 The interval of thirty days, here ascribed by Gaius to the lex Pinaria, is expressly referred to the actio sacramenti by the Pseudo- Asconius (Bruns, F antes', App., p. 71), who is evidently quoting Gaius (see Mommsen, Juristische Schriften, Vol. Ill, p. 528). 4 The intermediate stage, when custom was hardening into right, may be well expressed by what Cicero (ad Quintum Fratrem, I. 2. 10) says of the provincial governor of his own time : ' Quid ? praetor solet judicare ? ' It was still possible but hardly proper. 6 Gaius, Inst. IV. 24. The opposite alternative has been noticed above, p. 44. 64 ACTIO SACRAMENTI CH. never expressly said) that he was required to challenge his opponent's claim, staking a sacramentum on the issue, which issue would then be referred to a judex. Before leaving this matter I would say a few words about a supplementary question raised by Girard. He believes that the part taken by the praetor in these actions was automatic, and that he merely registered that which the parties to a suit had the right to prescribe. I should hold, on the contrary, 1 that it would be often for the praetor to decide precisely on what statement the sacramentum should be laid, and that he would compel either of the parties to stake his cause on that issue and no other. In later days the same was certainly the case with the sponsio, and there is no reason to suppose that the praetor was not always competent in the matter. In the speech pro Quinctio, 2 for instance, Cicero bitterly complains that his client had been placed in an unfair position by the question to which the praetor has ordered him to plead, and we find references 3 to a previous stage of the proceedings in which appeal had been laid to the tribunes 4 against the praetor's ruling. I am inclined to believe with Mommsen 5 and Danz, 6 as against Girard ' and Wlassak, 8 that it is to such discussions before the praetor rather than before the judex that we should refer the fragment of the rule of the Twelve Tables, 9 ' ni 1 I here agree with Wlassak, Processgesetze, Vol. II, p. 336, note, rather than with Girard, Org. Jud., pp. 79-81. 2 Cicero, pro Quinctio, 8. 30 seq. ' Cicero, ibid., 7. 29. * There is another instance in Cicero, Pro Tullio, 4. 38. See also reference in Greenidge, Proc, p. 232, to Cicero, Academica Priora, II. 30. 97 ' Tribunum aliquem censeo adeant, a me istam exceptionem nunquam impetrabunt '. 5 Mommsen, Strafrecht, p. 360. 6 Danz, Sacrale Schutz, p. 215. ' Girard, Org. Jud., p. 85. 8 Wlassak, Processgesetze, Vol. II, p. 291, note 16. 9 Bruns, Pontes' 1 , p. 19. IV POWERS OF PRAETOR 65 pacunt in comitio aut in foro ante meridiem causam coiciunto. Com peroranto ambo praesentes. . . . Post meridiem praesenti litem addicito.' x The same appears to be the explanation of the often quoted case 2 of the suitor who lost his cause by alleging as his grievance that his ' vines had been cut ', whereas the Twelve Tables prescribed an action ' ob arbores succisas '. I think that there can be little doubt that this suit never went to a judex, but that when the plaintiff formulated his plea — ' aio te ob vites succisas ex lege damnum decidere oportere ', and wished to stake a sacra- mentum on the issue, the praetor allowed the objection of the defendant that no breach of the Twelve Tables had been set out, and that he might therefore with impunity decline the challenge. In the last century of the Republic there is no doubt that the praetor 3 has the decisive word and that preliminary questions before him may be hotly debated. The advocate must ' volitare in foro, haerere in jure ac praetorum tribuna- libus \ 4 The jurisconsult Cj. Scaevola had to wait for hours, ' between laughter and vexation,' before he heard the end of the controversy in which two opposing advocates, elo- quent but ignorant, each entreated the praetor to ordain the precise course which would insure the failure of his own client, in an action arising out of the Law of the Twelve Tables. 5 We find the praetor Asellio, in the year 89 B.C., 1 ' Addicere ' is one of the ' tria verba ' of the praetor, and I know of no case where it is ascribed to the judex. 1 Gaius, Inst. IV. 11. * Huschke, Multa und Sacramentum, p. 496, note 400, aptly quotes Cicero, in Verrem, II. 16. 39 'quis unquam isto praetore, Chelidone invita, lege agere potuit ? ' See also below, p. 68. 4 Cicero, de Oratore, I. 38. 173. 6 Cicero, ibid., I. 36. 106. The words ' plus lege agendo petebat quam quantum lex in XII tabulis permiserat ' and ' quam quod erat in actione ' point to a legis actio rather than to a. formula. U10 F 66 ACTIO SACRAMENTI CH. IV endeavouring to shift on to a judex the responsibility which he ought to have borne himself ; x but in vain, for it is the praetor and not the judex who is mobbed and murdered by the indignant suitors. It is the praetor again who decides whether proceedings in bankruptcy shall be directed against the person or against the goods of the defendant, and so it is the ' saevitia praetoris ' that is blamed, when the debtor is not allowed ' lege uti, et amisso patrimonio liberum corpus habere '. 2 1 rf/v fK toC vofiov Kai Wovs airopiav is Toxis diKnarag ircpupepov, Appian, Bettum Civile, I. 54. 4. 2 Sallust, Catilina, 33. 1. See below, VoL II, p. 3. CHAPTER V THE FORMULARY SYSTEM The elastic nature of the actio sacramenti opened the way for the next development of procedure. It was but a slight step forward that the praetor, instead of submitting to the judex the question of a 'just' or 'unjust' sacramentum, should define more closely in a written document what were the precise points on which he was to decide, and what effect these decisions were to have on his final verdict of acquittal or condemnation ; and here we find ourselves in the ' Formulary system '. The right of the praetor to give instructions to the judex flows directly from his right to appoint him. 1 These rights are asserted in the imperative mood in which the whole formula is conceived, and in the words with which every formula begins, ' Lucius Titius judex esto.' There is no reason to suppose that the power of appointment was invented with the formulary system ; it is doubtless an inheritance from the time of legis actiones. It is true that the praetor will, if possible, appoint a person on whom both sides are agreed ; 2 but if he considers the matter in dispute to be sufficiently important 3 he will require the parties to name a senator, and if they cannot agree he must needs name one himself.* Sometimes one of the parties offers to 1 See Wlassak, Rdmische Processgesetze, Vol. I, p. 135. * Cicero, pro Cluentio, 43. 122 ' qui inter adversaries convenisset '. 3 Polybius, VI. 17. 7 Sera jteyeBos ?x H r ™» fyK\r]iidTaiv. * Here again I find myself at issue with Girard, who suggests (Org. Jud., pp. 84 and 174) various devices by which the difficulty F 2 68 FORMULARY SYSTEM CH. leave the choice to his rival, as the would-be litigant does in Plautus : x habe judicem De senatu Cyrenensi quemvis opulentum virum Si tuas esse oportet. Sometimes he objects even to an apparently unexception- able suggestion, as Nasica did 2 to the name of P. Mucius Scaevola. In any case the authority of the judex and the effect of his sentence comes from the magistrate alone ; as Mommsen has happily put it, 3 when the praetor says to the judex, ' si paret . , . condemna,' this is only a polite way of saying, ' si tibi paret, ego condemno.' This point is playfully illustrated in the burlesque formula which Cicero invents * to show how the righteous juryman may be made by a wicked praetor to be a wheel in the machinery for evolving an unjust verdict, ' L. Octavius judex esto ; si paret fun- dum Capenatem, quo de agitur, ex jure Cjuiritium P. Servilii esse, neque is fundus Q. Catulo restitueretur (Servilium condemna).' The ' praetor urbanus ', before whom those cases come in which two Roman citizens are engaged, has the most re- sponsible and weighty post, juris dicundi, ' in which,' says of want of agreement might be got over, but peremptorily rejects the obvious solution that the magistrate would then do in fact what he always does in law, appoint the judex himself. It appears that the objecting party can only evade in the last resort by an appeal to the tribunes (Asconius, in Orationem in Toga Candida, 75). Mommsen (Strafrecht, p. 178) evidently does not hold with Girard. 1 Plautus, Rudens, 712 (Lindsay). The end of each line is wanting in the MSS., and Niebuhr (Rom. Hist., Eng. Trans. I, p. 428) fills the gaps otherwise. Happily the words quemvis opulentum are sufficient for the present purpose, and these are undoubtedly genuine. 2 Cicero, de Oratore, II. 70. 285. 1 Strafrecht, p. 176, note 4. * Cicero, in V err em, II. 12. 31- V LEX AEBUTIA 69 Cicero, 1 ' reputation accrues from the opportunity of dis- pensing equity ; in this post a wise praetor, and such Murena was, avoids offence by the fairness of his decisions, and gathers good will by his patience in listening.' Such instances must of necessity be taken mainly from the history of the later Republic, of which we know most ; but there is no reason to suppose any breach of continuity; the essential power of the magistrate remains the same through- out, though expressed in different forms. 2 The doubtful question of date, which we have seen in the earlier history of the procedure under the legis ac- tiones, reappears at its close, when these actiones were, save in the exceptional cases noted below, 3 superseded by the formulary system. Here, too, I believe the true answer to be that the change was gradual, and crept in as a matter of practice. The process of change was un- doubtedly aided by the lex Aebutia, and the precise year 4 of this ' Reformgesetz der Republik % as Wlassak calls it, has been eagerly debated but never accurately determined. So far as I know, the lex Aebutia is mentioned only twice by ancient writers. Gaius tells us, 5 ' Sed istae omnes legis actiones paulatim in odium venerunt ; . . . itaque per legem Aebutiam et duas Julias sublatae sunt istae legis actiones effectumque est ut per concepta verba, id est per formulas, litigemus. Tantum ex duobus causis 6 permissum est lege agere.' This sentence sums up the effect of three laws 1 Cicero, pro Murena, 20. 41. ' See above, p. 64. s See note 6 on this page. 4 Dates have been suggested as far apart as 234 B.C. and 126 B.C. Ortolan, Instituts de Justinien,Yol. I, p. 203 ; Girard, Action d' Injures {Melanges Girardin, p. 256). 6 Gaius, Inst. IV. 30. • i. e. in centumviral trials (see below, chap. XII) and in. case of apprehended damage (damnum infectum). He might have added the Active action (vindicta) for the manumission of a slave. 70 FORMULARY SYSTEM CH. taken together, and the attempt to discriminate between them cannot be more than a matter of conjecture. The other passage is from Aulus Gellius. 1 Gellius has inquired of a jurisconsult, ' What is the meaning of proletarius which occurs in the Twelve Tables and is therefore within your province ? ' ' Not at all,' replies his friend, ' any more than the laws of the Fauns and the Aborigines. Proletarii and adsidui and satiates and vades and subvades and the twenty- five asses and taliones and the search for stolen goods cum lance et licio and all that old-fashioned stuff of the Twelve Tables was laid to rest when the lex Aebutia was passed, except in the legis actiones for centumviral cases.' He attributes, then, to the lex Aebutia the general disappearance of the archaic phraseology of the Twelve Tables from the modern practice of lawyers, except when they may chance to hear of them in the legis actio, which still survives in the second century after Christ for centumviral cases. It is dangerous to attempt to draw from this vague and general statement any specific theory as to what the lex Aebutia did or did not contain. 2 The most we can say is that it was a step in the process by which the cumbrous technicalities of the older law were gradually disused. In view, probably, of this un- certainty, Mommsen has, so far as I am aware, made no mention of this law in either of his great works. 3 1 Aulus Gellius, Noct. Att. XVI. 10. 8. " Wlassak's conclusion (Processgesetze, Vol. I, pp. 104 and 127, and Vol. II, p. 30 1 seq. ) that the formulary procedure existed in some cases before the lex Aebutia, that this law made the usage general but per- missive, and the leges Juliae compelled the use of written formulae instead of legis actiones, is quite probable, though I do not consider it to be proven. For other possible alternatives see Greenidge, Proc, p. 170 seq. * That is to say in the Staatsrecht and Strafrecht. In the revised edition of his article on the Judicium Legitimum, which shortly before his death Mommsen wrote for publication in bis collected works, we V ALTERNATIVE PROCEDURES 71 If we attempt to draw a conclusion from the casual refer- ences in the literature of the Republic, we find much to sup- port the contention that Gaius's words, ' paulatim in odium venerunt,' represent the truth of the matter, and that the development was gradual and continuous. Some kind of instruction, written or verbal, given by the praetor to the judex, seems to follow directly from the exigencies of the law of the Twelve Tables. How, but by authorization of the magistrate, could the judex, who found that his allowance of the jus talionis was ineffectual, be empowered to mulct the aggressor in pecuniary damages instead ? * The cases in which one of the parties was an alien, to whom, unless he came from a privileged community, the Roman procedure of the legis actio was not applicable, must needs have been dealt with from very early times in this fashion. There is abundant evidence 2 that the two systems were not mutually exclusive, but that they existed side by side to a late period. In the generation before Cicero, represented by the dramatis personae of the dialogue de Oratore, when the formulary practice was already common, we find 3 that it was still necessary to know the proper words with which ' herctum ciere ', ' to claim the division of a property ' by the ' legis actio per judicis postulationem '. In Cicero's own time, again, we find numerous traces of the survival of the older method in other than centumviral cases. The sact amentum, for instance, of the woman of Arretium, one of Cicero's earliest clients, 4 was found to be justum by the decemviri, at do find (Juristische Schriften, Vol. Ill, p. 372) a casual reference to this law, ' das dem Legisactionenverfahren den Formularprozess substituirte.' 1 See above, p. 44. a See Greenidge, Proc, p. 163 seq. ; see also below, p. 210. 3 Cicero, de Oratore, I. 56. 237. * Cicero, pro Caecina, 33. 97. 72 FORMULARY SYSTEM CH. that time quite a distinct court. 1 In the fro Murena the cumbrous formalities of the ' manum conserere ' are repre- sented as still existing in a suit about property in a landed estate, 2 and as being no longer mischievous, not because abolished but because divulged. There is clear reference, likewise, to the ' actio per manusinjectionem ' in the muni- cipal lex Ursonensis 3 of the year of Caesar's death. All these cases are subsequent to the lex Aebutia, which cannot therefore have made a very clean sweep of the older forms. The authoritative character of the praetor's edict, itself the source of most of the other changes, was only gradually established. Here the steps may be easily traced. It was a mere matter of convenience that the magistrate should announce beforehand the main rules by which he intended to be guided in his pronouncements ; but soon there came to be recognized a moral obligation on the praetor to abide by what he had laid down in his own edict. When Verres, as praetor urbanus, in the year 74 B.C., transgressed this duty in the most glaring manner, he did nothing illegal ; but already the mischief was recognized and counteracted by the activity of his colleague, 4 who ' filled several volumes with cases in 1 The practice by which the ' Decemviri stlitibus judicandis' ceased to have a court of their own and were made presidents of centumviral courts (' centum viralem hastam cogere ') was an innovation of Augustus ; Suetonius, Augustus, 36. 2 Cicero, pro Murena, 12. 26. Yet Cicero's parody of a formula in the Verres case (see above, p. 68) shows clearly that suits about land might be referred to a judex under the newer system. 3 Chap. LXI (Bruns, Fontes', p. 123) ' judicati jure manus injectio esto,' etc. ' L. Piso, the praetor peregrinus (Cicero, in V err em, I. 46. 119). In earlier times, when there was but one praetor, the consuls would be at hand to check any flagrant transgression. This consular inter- ference naturally disappears with the multiplication of the praetor- ships, and only one case is known in later times (66 B.C.), when the consul quashed the praetor's decision as to the capacity of an eunuch- priest to inherit. (Valerius Maximus, VII. 7. 6.) That Plutarch V JUS AND JUDICIUM ?3 which he had interposed his veto, because Verres had given decisions contrary to his own edict '. A few years later the law of C. Cornelius, tribune of the plebs in 67 B.C., imposed the duty of conformity to his edict as a direct legal obliga- tion on the praetor, I think that there is little doubt that this is a typical instance, and that all the recorded improve- ments in procedure were of the nature of insensible revolu- tions, the innovations being first adopted de facto as a matter of convenience, then by usage hardening into a right, and finally elevated by statute to the rank of definite obligation. It remains to consider one further point. The convenient division of labour between the magistrate and the private juryman leads to a distinction between the proceedings in jure and the proceedings in judicio. The distinction holds good wherever we have to do with the judicia ordinaria, that is to say with trial under the civil forms of the legis actiones, and of the formulary system. The essence of jus is the presence of the magistrate or his representative. 1 Gaius a gives us a distinct definition when he writes ' pi- gnoris capio extra jus peragebatur, id est non apud prae- torem ', and there are numerous instances, as the ' quando te in jure conspicio ' of the plaintiff, 3 and ' antequam ex jure exeat, id est antequam a praetore discedat '.* But perhaps the best illustration comes from the history of a phrase. The fictive combat, the manum conserere, is described in the Twelve Tables as taking place in jure, ' si qui in jure (Marius, 38. 4) attributes to his sixth consulship Marius' decision of the dower-case of Titinius and Fannia must be an error. Valerius Maximus (VIII. 2. 3) says ' sumptus inter eos judex '. 1 For instance the ' praefecti jure dicundo per Italiam ' of the Republic and the ' judex extra ordinem datus ' of the Principate. 2 Gaius, Inst. IV. 29. 3 Cicero, pro Murena, 12. 26. 1 Gaius, Inst. IV. 164. See also the peremptory edict, " restituas antequam ex jure exeas.' Probus, de Notts Juris, excerpt 70 in Kriiger, Jus Antejustinianum, Vol. II, p. 148. 74 FORMULARY SYSTEM CH. manum conserunt ; ' * yet Ennius speaks of ' ex jure manum consertum '. Gellius 2 explains the discrepancy by telling us that the law intended the praetor to go with the parties on to the ground ; they would then fight in jure : after- wards to save trouble, ' contra duodecim tabulas tacito con- sensu,' they were sent to the spot without the praetor, and then the battle is ex jure. In the ordinary procedure, both under the legis actiones and under the formulary system, the decisions of the juryman or the centumvirs are not given in the praetor's presence, and are therefore not in jure. Now all magisterial acts are liable to the intercessio of a colleague, as we saw in the case of Verres, or of a tribune,* and certain magisterial acts are likewise liable to pro- vocate ad populum. But the peculiar feature of the judex * is that he is neither a magistrate nor a delegate using magis- terial powers, but in form a subordinate private man, who merely performs a task that is set him, and therefore there is no place where either intercessio or provocatio can come in. The praetor has already given him his orders, whether it be to say if the defendant's sacramentum is justum, or to answer the more elaborate questions put to him under the terms of a written formula ; and if the judex disobeys these orders, as by shirking his duty of hearing and deciding the case, the praetor may fine or imprison him. But so long as he does just that thing which is commanded him, nothing can reverse the effect which it has pleased the praetor to attach beforehand to his finding. Thus there is no further magisterial act to which either intercessio or provocatio can 1 Brans, Fontes 1 , p. 25. * Aulus Gellius, Noct. Att. XX. 10. 9. 3 See above, pp. 64 and 72. * The body of centumviri has precisely the same functions as the unus judex. V JUS AND JUDICIUM 75 attach itself, and the verdict once given is unassailable. When we remember that the judex was a man specially, selected and accepted on account of the confidence felt in his character and ability, and that his decision was given under the responsibility of an oath, it is not surprising that the Romans should have attached a special sanctity to the res judicata* and that, while jealousy of the power of the magistrate meets us at every period of the republican history, we find a complete acquiescence in the supposed infallibility of the judex. The contrast between jus and judicium is thus sufficiently vital, and it is only to be regretted that some modern critics should have exaggerated its effects, and attempted to intro- duce the distinction where no Roman could have imagined it to exist. The most notable instance is Zumpt's a analysis of trials on appeal before the people. He actually assimi- lates the action of King Tullius Hostilius in the trial of Horatius to the proceedings of the praetor in jure, and the Sovereign People to the judex appointed by the magistrate. I am not aware that any one has followed Zumpt in this strange path, 3 nor again that any one but Zumpt has framed his account of the procedure of the quaestiones perpetuae 'on the plan of allotting the various stages in the trial accord- ing as some are supposed to take place in jure and some in judicio* As a matter of fact, in these quaestiones, as 1 See Mommsen, Strafrecht, p. 482. 2 Zumpt, Criminalrecht, 1. 1, pp. 95 and 98. See below, p. 128 seq. * Bruyant (Jurisdictions Criminelles a Rome, p. 26) is a possible exception, but he is not very clear on the point. 4 The whole of Zumpt's Criminalprocess is constructed on these faulty lines. Geib, Romischer Criminalprocess (1842), had indeed (p. 285) pointed out that the preliminary proceedings from the postulatio to the nominis receptio may be considered as a whole, and distinguished from the actual trial ; and that this is analogous to the difference between the proceedings in jure and in judicio of ?6 FORMULARY SYSTEM Ctf. Greenidge 1 remarks, ' the old distinction between jus and judicium has disappeared.' Perhaps the more complete truth is that their essential unity, as illustrated by the Regia judicia, 2 obscured for the moment by the accidental severance of the two in the civil procedure, here reasserts itself. There is really no fundamental antagonism between the two conceptions, 3 and so the Romans found no difficulty in re-establishing in the quaestio perpetua a judicium, the whole of which was conducted in jure in the presence of the magistrate, and of which he was personally the president and the mouthpiece. If it be objected that these trials being in jure should be subject to inter cessio, the answer is that the validity of this doctrine is recognized, and that its consequence is set aside by positive legislation ; for in the lex Acilia repetundamm 4 we find that all magistrates are expressly forbidden to interfere in these proceedings. 5 The division between the questions, which either under the legis actiones or the formulary system were decided in jure and in judicio respectively, does not correspond accurately to the modern distinction between ' law ' and ' fact '. 6 the civil trials : but this is a very different thing. Heitland (pro Rahirio, p. 12) mentions Zumpt's theory with some approval, but does not commit himself very deeply to its acceptance. Mommsen hints at the distinction once casually in a note (Strafrecht, p. 404, note 2), but makes no use of it in his constructive presentment. 1 Greenidge, Proc, p. 416. 2 See above, p. 63, note 1. 8 In his Commentary on the lex Ursonensis (Juristische Schriften, Vol. I, p. 251) Mommsen has excellently set forth the true doctrine: 'In causis privatis proprie praetoris judicium est summoque jure solus is causarum judex habetur, sed quum privatum jubet sententiam ferre vulgo is et judicasse dicitur et judex appellatur.' 4 Verses 70-71 ; Bruns, Fontes', p. 70. 6 This did not prevent Vatinius from calling to aid his friend Clodius, nor deter that model tribune from storming the praetor's court with an armed gang. Cicero, in Vatinium, 14. 33. ' See Greenidge, Proc, p. 150. V LAW AND FACT 77 The praetor has, as a matter of principle, the right to ask the judex questions belonging to either sphere at will ; and in the formulae which have been preserved to us, ' si paret fundum, de quo agitur, ex jure Quiritium Auli Agerii esse,' or ' si paret Numerium Negidium Aulo Agerio sestertium mille dare oportere ', it is easy to see that questions of law might necessarily be involved. The centumviral cases cited in the First Book of Cicero's dialogue de Oratore, seem all to turn on issues of law, the facts not being in dispute. An immigrant, who, having the jus exulandi at Rome, was qualified to take up the citizenship on his own. account, and stood in no need of a patronus, had nevertheless ' applied himself ' to a citizen. The centumviri had to decide whether such applicatio was or was not a valid act, carrying a claim to the inheritance of the supposed client ; and again, whether the plebeian house of the Claudii Marcelli acquired as a stirps rights of inheritance over the descendants of their own freedmen, similar to those of gentilitas, or whether the gentiles familiam habento of the Twelve Tables would designate the patrician namesakes of the Marcelli as heirs ; x -and again, whether an heir instituted as next in succession after the death of any posthumous child of the testator, was entitled to claim the inheritance, if no such child were born. 2 It is an interesting question how far such decisions acted 1 On the ground, as I think, that the identity of name implied an original clientship of the plebeian branch, and so excluded them from Scaevola's definition of gentilitas (Cicero, Topica, 6. 29), 'quorum majorum nemo servitutem servivit.' I believe that the gentilitas of those plebeian houses which had no patrician namesakes was unimpeachable. .For instance, the Gens Minucia (Cicero, in Verrem, I. 45. 1 1 5 ) inherited as such. ,My analysis of both the cases last cited differs from that of Mommsen. It would take too long to argue the points here. I have stated my views in Smith's Diet. Ant., s.v. Plebs. Greenidge (Proc, p. 184) seems to agree with me in the main. 2 Cicero, de Oratore, I. 39. 176 and 57. 243. 78 FORMULARY SYSTEM CH. as precedents for the future, or are to be reckoned as a source of law at Rome. Cicero certainly sometimes refers to decided cases as authoritative on points of law ; for instance, the affirmation by a law-court of the citizenship of colonists nominated by Marius is cited 1 to show that the grant of Roman citizenship to the member of a foreign State does not require the consent of that State ; again, Cicero's own success in procuring a verdict in the case of the woman of Arretium is quoted in the pro Caecina as showing the in- validity of all disfranchising statutes of Sulla. 2 In like manner the verdict of P. Mucius Scaevola on the dowry of Licinia, Caius Gracchus' widow, was preserved in the writ- ings of Labeo, and is quoted as an authority by Javolenus, a jurist of the time of Hadrian. 3 On the other hand we have instances of discordant decisions, without any hint that the later judge stretched his powers in disregarding the authority of his predecessor. Two such cases, one of a magistrate, the other of a private judex, are mentioned together in a treatise on forensic rhetoric, once attributed to Cicero. 4 A person who has accepted agency is undoubtedly liable to the actio mandati in respect of his proceedings in his prin- cipal's behalf : the question is whether his heirs are similarly liable ? Marcus Drusus, as praetor urbanus, said Yes ; Sextus Julius said No. The opinion of Drusus was eventu- ally adopted by Paulus, and incorporated in the legislation of Justinian. 5 In the other case, Caius Caelius, as judex affirmed, and Publius Mucius disallowed the right of a poet 1 Cicero, pro Balbo, 21. 48. * Cicero, pro Caecina, 33. 97. Compare de Domo, 30. 79. 3 Digest, XXIV. 3. 66. See below, p. 184, note 4. We cannot be certain whether Scaevola was himself judex, or whether he was consulted by the judex who tried the case. ' Cicero, ad Herennium, II. 13. 19. 6 Digest, XVII. 1. 58. V AUTHORITY OF DECIDED CASES 79 to prosecute an actor, who had criticized him offensively on the stage. Cicero 1 defines the civil law as, ' quod in legibus, senatus consultis, rebus judicatis, jurisperitorum auctoritate, edictis magistratuum, more, aequitate consistat.' In the Institutes of Gaius and of Justinian, which take up most of the other points of Cicero's enumeration, previous judgements are not reckoned among the sources of law; The omission may perhaps be accounted for, if we remember that under the imperial system the supreme judge was also the legislator. When every case decided by the emperor had the full force of law, there was no occasion to give any special binding force to precedents from the decisions of inferior judges. Thus, Justinian is able to lay his finger on the defects of case-law at the very moment when he is emphatically establishing it in the most important instance. On the one hand, he orders, 2 ' Let no judge or arbiter suppose that he is bound to follow any opinion of a jurist which he considers wrong, and still less the sentences of prefects and other judges, not even if the judicial decisions of the most exalted prefecture, or of any highest magistracy are alleged ; for if a wrong decision has been given, that is no reason why the error should spread so as to lead other judges wrong as well.' On the very same day 3 he decrees, ' If the emperor's majesty has taken judicial cognizance of a matter and pronounced a sentence, 4 let all judges in our realm know that the decision is law not only for the case in which it was given, but for all similar ones.' Such decisions are in fact incorporated by hundreds in Justinian's Code. 5 The pronouncements of 1 Cicero, Topica, 5. 28. a Cod. Just. VII. 45. 13. * October 29, a. d. 529. Cod. Just. I. 14. 12. ' A few lines lower down he includes interpretations ' in precibus ', i. e. apparently in rescripts in answer to supplicationes. * The same should hold good of the judicial decisions of the other 80 FORMULARY SYSTEM CH. inferior judges may however come in as evidence of the pre- valence of custom and general agreement, the force of which Justinian admits when he authorizes, by including them in his Digest, sentences like the following, 1 ' Our emperor Severus (Septimius) has laid it down that, on doubtful points of law, custom or the authority of a continuous series of previous judgements ought to have the force of law ' ; or again, 2 ' For since the actual laws bind us because they have been received by the judgement of the People, it follows that those unwritten ordinances which the People has approved, have a binding force on all ; for what matters it whether the People declares its will by its voice or by very acts and deeds ? And so it is held, and most rightly, that laws are repealed not only by the voice of the lawgiver, but by disuse with the silent consent of all men.' That succeeding judges should welcome the assistance of the opinions of their predecessors, if they think them sound, is natural and almost necessary. The crucial question, how- ever, as to the authority of previous decisions is that answered so emphatically in the negative by Justinian, Is the judge bound to acknowledge the authority of judgements regularly passed, supposing him to disagree with them ? 3 The in- convenience which may arise when this question is answered in the affirmative, as it must be in England, is explained sovereign authority, the senate ; though I do not find it expressly stated. Venuleius Saturninus (Digest, XLVIII. 2. 12) gives as an authority 'ex sententia Lentuli dicta Sulla et Trione consulibus' (i. e. a. d. 31), and this may be a j udgement given in the senate on an individual case. 1 Callistratus, Digest, I. 3. 38. 2 Julianus, Digest, I. 3. 32. 8 The case is put with his usual clear-sightedness by the late F. W. Maitland (Letter to Henry Sidgwick in Fisher's Biographical Memoirs, p. 47), in a question respecting the practice of the German jurists. V CASE-LAW 8r by Mr. Bryce in a passage 1 which supplies an admirable comment on the sentence of Justinian. ' Observe how the English system works. A decision is given, perhaps hastily, or by a weak court, which in a little while, especially after other similar cases have arisen, is felt by the bar and the bench to be unsound. There is a general wish to get rid of it, but it is hard to do so. People have begun to act on the strength of it ; it has found its way into the textbooks ; inferior or possibly even co-ordinate courts have followed it ; convey- ances or agreements have been drawn on the assumption that it is good law. The longer it stands the greater its weight becomes, yet the plainer may its unsoundness be. Cautious practitioners fear to rely on it, because they think it may some day be overruled, yet as they cannot tell when or whether that will happen, they dare not disregard it. . . .* Even in a superior court, which has power * to overrule the erroneous decision, and resettle the law on a better basis, it may be long before the solution is found, because judges are chary of disturbing what they find, holding that it is better that the law should be certain than that it should be rational, 2 and fearing to pull up some of the wheat of good cases with the tares of a bad case.' The authority conceded to previous judgements largely depends on the regularity with which they are reported and 1 ' Roman and English Legislation,' in Studies in History and Jurisprudence, by the Right Hon. James Bryce, British Ambassador to the United States, formerly Regius Professor of Civil Law in Oxford, Vol. II, p. 285. a We may compare the attitude of the House of Lords towards previous decisions. Lord Chancellor Halsbury laid down 'that a decision of the House, once given upon a point of law, is conclusive upon the House afterwards . . . Nothing but an Act of Parliament can set right that which is alleged to be wrong in a judgement of this House' (1898, Appeal Cases, pp. 379-81). mo G 82 FORMULARY SYSTEM CH. preserved. A remarkable illustration of this is given by Bryce. 1 ' In other countries, such as Germany, legal writers 'are numerous and influential, but the magistrates, their * decisions having been but little reported, have till our own ' time held for the most part a subordinate place, and played ' a comparatively small part in the development of law. This ' was at one time the case in France also, where cases decided * by the higher courts of law used to stand little, if at all, ' above treatises composed by legal writers of established " reputation. Nowadays, however, cases are more fully re- ' ported, and an authority is accorded to decisions scarcely 'lower than that which they have long enjoyed in England ' and America.' In England, of course, the decisions of the courts have been carefully reported for many generations, and these reports form the storehouse from which the writers of textbooks, and the barristers who have to argue cases in court, alike draw their material. In former days the re- porter sometimes ventured to be a critic as well as a witness, and'the note, ' Semble bad law,' is to be found appended to some judgements, impairing to a certain extent their authority as precedents. Now, at Rome, the jurisconsults were not able to separate, so clearly as we can, the verdict of a jury (which has no authority as a precedent) from the decision of a judge on a point of law. On the other hand, they had the ad- vantage of being their own reporters, and could by their silence consign to oblivion any decision of which they disapproved. Thus the law was practically built up by the bar, 2 and decisions which approved themselves to the 1 Bryce, Studies in History and Jurisprudence, Vol. II, p. 253. 2 This was still more notably the case under the principate, when official authority was given by Augustus to the opinions of certain selected j urisconsults (Pomponius in Digest, I. 2. 2. § 49). Such opinions continue to be a main source of law after the closing of the praetor's V CASE-LAW 83 most eminent lawyers of the day supplied material which might hereafter be taken up into the praetor's edict. This lex annua, as Cicero 1 calls it, was an admirable machinery for tentative legislation. Let us hear Bryce 2 again. ' Not * only is the error of one praetor easily corrected by his ' successor, but the occasion recurs year by year on which it * must either be corrected or reaffirmed, so that a blemish is * much less likely to be suffered to remain. If five or six ' successive praetors have each of them in their edicts repeated * the provision introduced by one of their predecessors, men ' may confidently affirm that it will be supported and per- * petuated by those who come after, either in its original form, * or possibly in a more general form, which will include its * substance.' On the other hand, verdicts given on actual cases in court might draw the attention of jurisconsults and praetors to defects or ambiguities in the law, which might be corrected in like manner. Cicero 3 speaks of an old case, in which substantial injustice was done, which would have been impossible, he says, ' after our friend Aquilius invented the formulas doli mali.' There is another case in the de Oratoref where what was afterwards established law appears as a matter of controversy. A father hears of the death of his soldier son in Spain, and then himself dies, leaving his property to strangers. The report turns out to have been false, and the son claims to set aside the will. Cicero says edict by Julianus in Hadrian's time. Justinian's Digest is the monu- ment of the work of the Jurisconsults. After the time of Constantine we hear of no further additions to the law by this system, its place being taken by the direct reception into the Codes of the decrees and decisions of the emperors. See below, Vol. II, p. 1 54. 1 Cicero, in Verrem, I. 42. 109. 2 Bryce, loc. cit., Vol. II, p. 287. 5 Cicero, de Officiis, III. 14. 60. ' Cicero, de Oratore, I. 38. 175, and 57. 245. G 2 84 FORMULARY SYSTEM CH. V nothing about the verdict, but Valerius Maximus 1 tells us that the soldier won his case by the unanimous vote of the jury. The later law provided that a son could not be dis- inherited except by specific mention (' filius meus exheres esto '), 2 and there can be little doubt that the result was influenced by the decision of the centumviri. There is much question, however, as to what was the point actually estab- lished ; and, as the controversy is too long to be included in a footnote, I will discuss the matter in an Appendix to this chapter. I think that, with all these considerations in mind, we may best solve the general question of case-law at Rome by concluding that it was not all decided cases, but only cases sifted by the opinions of jurisconsults, and whose principle won some sort of magisterial recognition, which furnished really authoritative precedent. Purists of the school of Bentham have always protested against judge-made law, and it has its faults. They have hardly realized, perhaps, the immense advantage which accrues from founding legislation on principles embodied in concrete instances. The Romans seem to have approached more nearly to the solution of the problem than any other people. 1 Valerius Maximus, VII. 7. 1. 8 Justinian, Inst. II. 13. Augustus decreed that this was not per- missible if the son were a soldier, but the law was afterwards repealed ; Paulus in Digest, XXVIII. 2. 26. APPENDIX TO CHAPTER V EXHERISION OF A SON In dealing with the controversy to which I have referred at the end of the last chapter it will be convenient first to quote the passages from the de Orator e, the meaning of which is in dispute : [Crassus.] ' Quae potuit igitur esse causa major quam ' illius militis ? de cujus morte quum domum falsus ab ' exercitu nuntius venisset et pater ejus, re credita, testa- ' mentum mutasset et, quem ei visum esset, fecisset heredem ' essetque ipse mortuus : res delata est ad centumviros, ' quum miles domum revenisset egissetque lege in heredita- ' tem paternam testamento exheres filius. Nempe in ea. ' causa quaesitum est de jure civili, possetne paternorum ' bonorum exheres esse filius, quem pater testamento neque ' heredem neque exheredem scripsisset nominatim.' 1 And again — 2 [Antonius.] ' Et credo in ilia militis causa, si tu aut ' heredem aut militem defendisses, ad Hostilianas te actiones, ' non ad tuam vim et oratoriam facultatem contulisses. Tu ' vero, vel si testamentum defenderes, sic ageres, ut omne ' omnium testamentorum jus in eo judicio positum videretur, ' vel si causam ageres militis, patrem ejus, ut soles, dicendo ' a mortuis excitasses ; statuisses ante oculos ; complexus ' esset filium flensque eum centumviris commendasset ; ' lapides mehercule omnes flere ac lamentari coegisses, ut ' totum illud " uti lingua nuncupassit " non in xu tabulis, ' quas tu omnibus bibliothecis anteponis, sed in magistri ' carmine 3 scriptum videretur.' 1 Cicero, de Oratore, I. 38. 175. 2 Ibid. I. 57. 245. 3 i.e. in a schoolroom repetition. 86 EXHERISION OF A SON CH. V An interpretation of these passages has been extracted from the comments of Justinian or his adviser Tribonian in a decree x regarding exheredatio issued in the year a.d. 531. The purport of this edict is to level up the distinction in this matter between sons and daughters, between descendants in different generations, between those born before and after the testator's death, between what might be claimed by law and what under the praetor's edict. All these distinctions- he blames as unnecessary refinements of the jurists, and he proceeds to sweep them all away. In this effort after simplicity he claims to be ' following in the steps of our ancestors ', and he adds the words ' scimus etenim antea simili modo et filium et alios omnes inter ceteros exheredatos scribere esse concessum, cum etiam centumviri aliam differentiam introduxerunt '. This has generally been inter- preted (notably by Girard, 2 Adolf Schmidt, 3 and Roby 4 ) to mean that the change introduced by the centumviri by their verdict in this case was to forbid disinheriting a son (though not a daughter or a grandchild) by the general clause ' ceteri exheredes sunto '. My view would rather be that this was one of the later subtleties which the jurists founded on this verdict, and that the case really turned on the simple issue whether a son could be disinherited by being merely passed over. Each of these two explanations seems to postulate a different history of exheredatio. The first is that set out with much skill by Girard 5 ; he believes that the necessity for this act arose long before the Law of the Twelve Tables in the days when ' a Will was made by a law actually proposed by the 1 Cod. Just. VI. 28. 4. * Girard, Manuel, p. 853, n. 3. 3 Schmidt, Das formelle Recht der Notherben, pp. 57 and 61. * Roby, Roman Private Law, Vol. I, p. 190. 5 Girard, Manuel de Droit Romain, pp. 853 seq. APPENDIX CONDOMINIUM 87 pontiffs ', and that the necessity is the logical consequence of the doctrine that the son is, in a sense, co-proprietor with the father, so that, as Paulus says, the sui ' quasi olim domini erant '. This subtlety of Paulus occurs in a paragraph 1 which expands and elaborates a passage of Gaius. 2 Both jurists seem to be struggling to find a metaphysical explanation of the phrase ' sui heredes ', and of the rule that the son will succeed as heir at law to the father, though there be no Will nominating him as such. The 'continuatio dominii', says Paulus, leads to the result ' ut nulla videatur hereditas fuisse ', and that the sons ' post mortem patris nonhereditatem perci- pere videntur sed magis liberam bonorum administrationem consequuntur '. The explanation is far more difficult than the problem. It seems to assume that testamentary heir- ship is the natural and primitive method, and that the ' legitima successio ' requires justification. Suus heres, ' an heir to himself,' is really a natural enough description for one who succeeds to a portion of that legal persona by which he has hitherto been covered, and the intimate kinship between father and child, and the political and military needs of the State, furnish abundant reason for his succession in case of intestacy. I should agree with Professor Geldart 3 that Paulus' explanation is merely ' a late piece of idealism ', and not really any proof of ancient family co-ownership. The whole evidence goes to show that the filiusfamilias was during his father's lifetime not a co-owner, but part of the property. It would be possible, however, to admit Girard's ascription ' Paulus, Digest, XXVIII. 2. 11. 1 Gaius, Inst. IL 157. 3 In a private communication for which I have to express my best thanks. 68 EXHERISION OF A SON CH. V of the exheredatio of sui to the days of the comitial testament without necessarily subscribing to Paulus' far-fetched ex- planation, and so we may continue the history as set forth by Girard. The Law of the Twelve Tables, ' Uti legassit super pecunia tutelave suae rei, ita jus esto,' does not, so he maintains, alter the situation, as the ' legassit ' is supposed to be conditioned by the observance of all legal forms, this of institution or exheredation of sui amongst them. At first no special words of exheredation were prescribed, and the phrase ' ceteri exheredes sunto ' was held to be valid for the exclusion of all possible interveners. This form was used by the father in the case cited by Cicero, and the decision of the centumviri against its validity introduced the distinction that it was insufficient in the case of a son, and that ' exheredatio nominatim ' was demanded for him though not for a daughter or a grandson. This centumviral decision then terminates the epoch referred to by Justinian when a son could be disinherited " inter ceteros '. The ■postumus as an ' uncertain person ' x could not be instituted heir, and as a consequence could not be disinherited. In his case, therefore, the condition for the validity of a will, which underlay the apparent liberty of bequest granted by the Twelve Tables, could never be fulfilled, and so the birth of the postumus suus must from the earliest times have hopelessly invalidated a will (agnascendo rumpit testamen- tum). This obstacle was dealt with, so far as concerned a posthumous son, as early as the generation before Cicero, for Crassus and Antonius in the de Oratore 2 discuss the 1 Ulpian, Reg. xxii. 4 : 'incerta persona heres institui non potest.' Gaius (Inst. ii. 242) confines the incapability to the postumus alienus, but that is because the postumus suus has been removed from the category of ' incertae personae ' by the device of Aquilius and by the Lex Vellaea (see Schmidt, loc. cit., p. 6). * Cicero, de Oratore, I. 39. 180 and 57. 243. APPENDIX CASE OF SOLDIER 89 case of M'. Curius, who was ' secundum postumum heres institutus ', and more fully by the jurist Aquilius Gallus, 1 Cicero's colleague in the praetorship (66 B. a), who invented a formula to meet the case of a grandson, and finally by the Lex Junia Vellaea probably of the year 26 A. d. This law is said 2 to have removed many obstacles to the validity of wills, evidently by increasing the opportunities for instituting or disinheriting persons (especially those born between the execution of the will and the death of the testator) 3 , who might otherwise intervene as sui. So far the theory of the sequence of events seems satisfac- tory and self-consistent. But it all rests on the assumption that the soldier's father in the Ciceronian case wrote ' ceteri exheredes sunto '. 4 There is no hint of such a thing in Cicero ; he says indeed that the soldier was not ' nominatim exheredem ', but there is nothing to show that these words were then used, as they certainly had come to be by the time of Gaius or of Ulpian, in a technical sense as the antithesis to ' inter ceteros '. At no time is " nominatim ' held to mean strictly ' by name ', but includes any- thing which indicates that the testator recognized the existence of the person and wished to disinherit him, a conclusion obviously inapplicable to the soldier in this case. For instance, a son is held to be ' nominatim exheredatus ' by the words ' quicunque mihi nascetur ' 5 or by the words 1 Cervidius Scaevola in Digest XXVIII. 2. 29; from § 13-15 of the same paragraph, it is clear that Gallus' formula (taken up in the first chapter of the Lex Vellaea) allowed such nomination only in the case of potential sui — ' ut liceat institui nondum natos, qui cum nascentur sui erunt.' ' Digest, XXVIII. 2. 29, § 6. 3 Ulpian in Digest, XXVIII. 3. 3, § 1. 4 That everything turns on this is recognized by Girard, Manuel, p. 854, note, and by Roby (loc. cit.), and, though less explicitly, by Holder (Beitrdge zur Geschichte des Romischen Erbrechtes, p. 107). 6 Ulpian in Digest, XXVIII. 3. 3, § 5. 90 EXHERISION OF A SON CH. V ' ceteri omnes filii filiaeque meae exheredes sunto ', unless there were evidence that the father acted in ignorance of the real facts. 1 Now I find it very difficult to believe that the words ' ceteri exheredes sunto ' came into the Will of the soldier's father. These words would have sense only in case of a testator who knew that he had sui to disinherit ; and they would most naturally arise, not as a mere ' omnibus ' formula, but when he was preferring any one or some of these sui to the detriment of the others, so that ceteri would mean ' my sui other than those whom I have named '. In that case the ceteri would be a definite class of persons present to the testator's mind, and not a vague generality, and the strong distinction subsequently drawn between these and the nominatim exheredati would not arise. Now if anything of the sort had occurred in the soldier's case, if there had been daughters or grandchildren whom the testator wished to disinherit and had disinherited by that clause, the issue whether he had intended to exclude the soldier, if he happened to be alive, along with the rest would have been discussed in a very different tone. But the plain sense of Cicero's story is that the father believed himself to be dying without descendants, so that he would have no ceteri to disinherit. The soldier, believed to be dead, was naturally not named, 2 and so became 1 Paulus in Digest, XXVIII. 2. 25 : 'de errore patrisapud judicem agi oportere.' * ' Neque heredem neque exheredem scripsisset nominatim.' Cicero, de Oratore, I. 38. 175. Holder (loc. cit., p. 107) takes these words as indicating two methods by which the soldier might have been effectively deprived of his position as heir-at-law ab intestato, that is to say, either by being named among the testamentary heirs, or by being expressly excluded. He would thus make the words of Crassus a recitation of what the law required (in both instances an absurdity to require from the testator in case of one whom he believed to be APPENDIX CETEEI EXHEREDES SUNTO gi incidentally ' exheres testamento ' simply because another was named heir. The difficulty of the soldier's case did not lie in any difference between general and specific wording. If it had turned on this technicality, Antonius 1 must have directed the attention of the soldier's advocate to the precise words used as the seat of the contention which he had to refute ; he would have pointed out that the ' ceteri exheredes sunto ' was in this case a mere unmeaning draftsman's formula answering to no persons known to the testator. But in fact he points out to him as the weak spot in his case not any ' exheredatio inter ceteros ', but ' testa- mentorum jus ', the rights of testamentary heirs, and the words of the Twelve Tables which guaranteed full liberty of testation, ' uti lingua nuncupassit.' It is this which stands in the way of the orator, this which he will be able to brush away, if he can summon up the spirit of the father from the tomb and carry conviction to the jury as to what would have been the real wishes of the deceased, had he known the facts. 2 The whole justification for the rule requiring exheredatio is that it furnishes a guarantee that the testator had a certain contingency in his mind, and had provided for it. Here there was no such provision. It is assumed throughout that there was no intention to exclude the soldier, but that he was in fact ignorantly excluded ; the whole question is between the unqualified sanctity of a Will on the one hand, and the claims of natural affection on the dead), whereas I understand him to be summarizing the facts of the particular case. 1 Antonius has taken up the discourse by the time we come to the second discussion of the case in chap. 57, § 245. ' Schmidt (loc. cit., p. 61) seems to ignore the whole spirit of this passage, when he says that at the period of which Cicero speaks the clear intention of the testator was of no account, and only the words mattered. 92 EXHERISION OF SON CH. V other. Valerius Maximus, 1 writing in the reign of Tiberius, evidently attributed this meaning to Cicero, for he is full of indignation against those who would have taken advan- tage of the old man's misapprehension. I cannot under- stand where, on Girard's supposition, the collision between the Law of the Twelve Tables and the pretensions of the soldier could come in. If this view be correct, we shall have to rewrite the history of the disinherison of sui as given us by Girard. There would be really no occasion for the express mention of an institution or disinheritance while the old comitial testament was the only Will recognized ; the pontiffs could allow or disallow the passing over of descendants, as they thought proper in each case. We begin then with the Law of the Twelve Tables. 2 When by this Law a private Will was put on a level with the public one, no corresponding restrictions were imposed, and so an heir at law would be excluded if not mentioned in the Will. .Pomponius tells us expressly, 3 ' latissima potestas tributa videtur . . . sed id interpretatione coangustatum est vel legum, vel auctoritate jura consti- tuentium.' But though he was not compelled by law, it may easily be conceived that a testator who had natural heirs might think it well, if he did not bring them into his Will, to make his intentions quite clear by indicating his wish to exclude them. If the Will merely preferred one suus heres over the others, the testator would do this by the phrase ' ceteri [sui] exheredes sunto ' ; if the property were to pass to a stranger he would probably employ more definite words of repudia- 1 Valerius Maximus, VII. 7. I. 2 Here I find myself in agreement with Schmidt (loc. cit., p. 1), though we part company later on. 8 Digest, L. 16. 120. APPENDIX EFFECT OF BIRTH OF POSTUMUS 93 tion ; but it was not necessary that he should do either the one or the other, and if he took the middle course and used indeed a formula of exclusion, but only the vaguer of the two, the son might, as Justinian says, find himself lumped among the ' ceteri '. If I am correct, this would be at a period when no legal rights hinged on the words, and when they were used merely for the purpose of explanation. It was otherwise where, believing himself to have no sui, the testator naturally said nothing about them. Was this to be taken as evidence that, if there proved after all to be children surviving him, he had acted under a misapprehension which ought to be corrected ? The most obvious case is that of persons who were born or became sui 1 after the Will had been signed, so that his attention was not called to them at the time. At a comparatively early period it seems to have been held that such an occurrence (like marriage in English law) so completely altered the circumstances that the previous Will could not hold good. As we have seen above, the mischief could not in early times be met by making the postumus an heir by Will, so that the only way to protect his natural right was to deny the validity of any Will what- soever. Cicero makes Antonius 2 name it as an undoubted point of law which no advocate would venture to dispute ' agnascendo rumpi testamentum ' . The modifications intro- duced by the jurists are all methods for evading this conse- quence, but apart from such evasions the central doctrine remains to the end, that the birth of a ■postumus suus ' breaks ' the Will. This doctrine itself was probably introduced by some decision of the centumviri to meet some peculiarly hard case, as for instance, if the testator had omitted to cancel 1 ' Aut agnascendo aut adoptando aut in manum conveniendo aut in locum sui heredis succedendo ' ; Ulpian, Reg. XXIII. 2. ! Cicero, de Oratore, I. 57. 241, and the same in pro Caecina, 25. 72. 94 EXHERISION OF SON CH. V an old Will and had died suddenly very soon after his marriage, not recognizing that his wife was with child. The next step is to treat the son believed to be dead like the son unborn, and to suppose that his father would have named him if he had known of his existence. The ' hard case ' which gave rise to the new rule of law is that recorded for us in the de Oratore, and this point was established by the verdict of the centumviri in favour of the soldier. We have seen that in the succeeding generation the jurists, of whom Aquilius Gallus was the most distinguished, occupied themselves with avoiding the hardships which might arise when the potential father or grandfather wished to make a Will including or disinheriting his ' postumus ' but could not do so. This process was continued by the Lex Junia Vellaea ; and here we find fresh subtleties introduced or recognized. The birth of a posthumous child had in- validated a Will irrespective of the sex of that child. 1 But when it comes to avoiding such invalidation by instituting or disinheriting the child, a distinction is for the first time specified in our texts, 2 that a daughter or a granddaughter may be included under the formula ' ceteri exheredes sunto ', whereas the males require more positive mention. Similar distinctions to those between the postumi arise to the disadvantage of the females in the case of living heirs, so 1 Gaius, Inst. II. 131. J Gaius, Inst. II. 134: 'In qua (lege Junia Vellaea) simul exhere- dationis modus notatur, ut virilis sexus nominatim feminini vel nominatim vel inter ceteros exheredentur.' This does not agree in the matter of grandsons with Ulpian, Reg. XXII. 22 : ' Nepotes et pronepotes ceterique masculi postumi praeter filium vel nominatim vel inter ceteros cum adjectione legati sunt exheredandi.' In the text I have followed Gaius who seems to quote the Lex Junia Vellaea more precisely, and is confirmed by Cervidius Scaevola's quotation from the same law (Digest, XXVIII. 2. 29, § 12) : ' ita verba sunt "qui testamentum faciet is omnes virilis sexus qui ei suus heres futurus erit " et cetera.' APPENDIX CICERO AND JUSTINIAN 95 that the lawyers, as Justinian sarcastically remarks, ' seem to find fault with nature for not producing only males.' All these subtleties clustering round the phrase ' ceteri exheredes sunto ' appear then to be not the point at issue in the law- suit recorded by Cicero, but a result deduced from the verdict of the centumviri in that suit, a verdict which, as it happened, was explicit only for the case of a son, and thus it was that ' centumviri aliam differentiam introduxerunt '. These later refinements raised the difference between exheredatio ' nominatim ' and ' inter ceteros ' to an importance which it had not originally possessed, until the emperor Justinian swept them all into the dust-hole. The strong point of Girard's presentation is that it brings the case of the soldier into full harmony with the historical development as recorded by Justinian ; its weak point is that it does not agree with the natural meaning of the story as told by Cicero, and introduces an explanation of the words of which no one would have thought for a moment, but for the supposed necessity of making them agree with Justinian. I have tried to reconcile the two statements in some sort. If my reconciliation be considered too forced, and there is really a discrepancy between Cicero and Justinian, I should hold it safer to conclude that the emperor, though right enough in his main argument, that there was at one time no distinction between sons and other sui, had somewhat confused the precise bearing of a legal case decided six hundred years before his time ; I should maintain that the authority of Cicero must prevail. CHAPTER VI THE MAGISTRATE AS A CRIMINAL JUDGE So far we have seen the magistrate as the moderator and regulator of the rights and mights of the citizens against one another. We have yet to consider him in those still more important functions in which he brings to bear the collective force of the community against the individual. ' Criminal jurisdiction,' writes Mommsen, 1 ' that is to say * the bringing about of the punishment of a public or private ' offence which infringes on the rights of the Roman common- ' wealth, belongs, as does judgement generally, to the rights ' and duties of the magistrature. . . . Whether the magistrate 'pronounces at his own discretion, and whether this pro- ' nouncement is final, or whether it can be cancelled by the ' People, or again whether the magistrate gives decisions con- ' ditional on the findings of jurors, or even makes his pro- ' nouncement in accordance with the discretion left by him ' to the jurors, in a legal sense, every sentence is a magisterial ' pronouncement.' The master-mind of Mommsen here lays hold on the main principle, which is to serve as a clue through all the entangle- ments of Roman procedure. By keeping always in view the principle of the unity and pervasiveness of magisterial powers we shall, as I believe, come to the right solution of each problem, even though the process may sometimes bring us into collision with the opinions as to details of Mommsen himself. 1 Mommsen, Strafrecht, p. 135. CH. VI JUDICATIO AND COERCITIO 97 In the present chapter it so happens that the very next matter of interest which meets us is one on which I feel myself obliged to differ from Mommsen. The question at issue relates to the strong distinction which he draws between judicatio and coercitio. In the original definition, indeed, 1 they would differ, not in the nature of the powers exercised, but only in the end for which they are applied, the one being used to punish past crime, the other to compel present obedience. But, as we proceed, we find that Mommsen reckons as coercitio the death sentences a inflicted on non-citizens in Rome itself and the whole juris- diction of the governor, including the capital jurisdiction within his province ; 3 and he even says that in this coer- citio ' is united the military and civil power of the magis- tracy '. 4 Here, of course, we pass far beyond the limits of the amount of force required to overpower resistance to lawful commands. In case of magisterial action within the walls, Mommsen offers the word as an explanation of the limits to the right of appeal, ' the entire magisterial coer- citio in the proper sense of the word ... is not subject to appeal to the people,' 5 and again, ' Appeal can be laid only against the public judgements, whose conception and sphere, as opposed to that of magisterial arbitrary power (coercitio), is defined by that very test.' This is surely an argument in a circle. At the most it informs us that, wherever we have punitive action by a magistrate with no appeal, we are to call the process coercitio and not judicatio. We are as far as ever from explaining why some magisterial acts are and some are not subject to appeal. In a note on the same page, Mommsen, apparently without 1 Strafrecht, p. 40. * Ibid., p. 647. * Ibid., p. 235. 4 Ibid., p. 39, note 4. ' Ibid., p. 475. 1110 H 98 MAGISTRATE AS JUDGE CH. any consciousness of the contradiction, lays it down that ' we may define the original criminal judicatio as coer- citio limited by the right of appeal '. This last passage is quite in accord with Cicero's words, ' magistratus nee obedientem et noxium 1 civem multa vinclis verberibus coerceto, ni par majorve potestas populusve prohibessit, ad quos provocatio esto.' In his latest work 2 Mommsen ex- pressly rejects the attempt of most modern critics to emend the passage by the omission of populusve, and if the words are to stand, we must give up the notion that coer- citio always coincides with the absence of the right to appeal. The fact is that the word has two meanings, a wider and a narrower, and that in this passage of Cicero, as in numerous others to which Mommsen in the same note refers, 3 coercere is used in the most general sense of any forcible repressive action of the magistrate or officer, and any pains inflicted by him, whether to punish past 1 Cicero, de Legibus, III. 3. 6. The MS. reading is innoxium. Mommsen, so far as I know, alone of modern critics defends that reading, and explains it of the ' disobedient but not criminal citizen ' who is the object of coercitio, as opposed to the criminal proper who (Strafrecht, p. 38, note 1 ) is aimed at in the next sentence, 'quurn magistratus judicassit irrogassitve, per popnlum multae poenae certatio esto.' I do not think that any opposition between the two classes is intended by Cicero, and therefore accept the reading noxium. 8 Strafrecht, p. 38, note 1. In the Staatsrecht {I 3 , p. 157) he says, ' Es sind hier sehr verschiedenartige Dinge unpassend in einander geschoben.' See also Strafrecht, p. 473, note 4. s Strafrecht, p. 38, note 1. Besides the instances there adduced we may notice Paulus, Sententiae, V. 26. 1 ' cujus rei poena in humiliores capitis, in honestiores insulae deportatione coercetur ' ; a rescript of Antoninus Pius {Digest, XL VIII. 10. 3 1 ) where the emperor is to decide of those who file false documents in a lawsuit, 'quatenus coerceri debeant;' Hermogenianus (Digest, XL VIII. 15. 7), 'in hoc crimine (plagio) detecti pro delicti modo coercentur et plerumque in metallum damnantur,' and Callistratus (Digest, XLVIII. 19. 28), ' proxima morti poena metalli coercitio.' VI MEANINGS OF COERCITIO 99 crimes or to check present disorder, and whether this action be or be not subject to appeal. More commonly, however, coercere is used in a more technical and restricted sense of the milder measures which the magistrate may apply at his own discretion to bring the citizen to order. When Philippus, for instance, the consul of 91 B.C., was provoked by Crassus' bold language in the Senate, 'non tulit ille, et graviter exarsit pignoribusque ablatis Crassum instituit coer- cere ; ' 1 and Caesar, in like manner, ordered Cato into arrest for obstructing debate in the discussion of the Agrarian law of his first consulship (59 B.C.). 2 It is in this sense that Paulus says 3 that jurisdictio can hardly exist without a modica coercitio, and that Pomponius * tells us that when the magistrate lost his power of life and death by the application of the law of appeal, ' solum relictum est illis ut coercere possent et in vincula publica duci jubere.' Such methods of compulsion must manifestly be kept within the limits beyond which the law allows an appeal ; but it seems a misuse of the word coercitio to assume the converse of this, and to call every magisterial action which is not subject to appeal, whether at home or abroad, by this name. Coer- citio, in the narrow sense, is allowed to be without appeal only because of the pettiness of the punishments which it inflicts, and if we pass to the other end of the scale and try to account for grave punishments, even for death, inflicted without appeal, it is no sort of explanation to say that it is a case of coercitio. It would have been small consolation to the deserter Matienus, whose story shall be told later on, 5 to be informed that he was not being punished but only coerced. It will be perhaps safer to avoid the general use 1 Cicero, de Ovatore, III. 1. 4. ' Dio Cassius, XXXVIII. 3. 2. ' Paulus, Digest, I. 21. 5. 4 Pomponius, Digest, I. 2. 2. § 16. 6 See below, p. 111 . H 2 100 MAGISTRATE AS JUDGE CH. of the term, which escapes all attempt at definition, and to employ it only in the restricted sense for the slight penalties allowed for ' contempt of court '- 1 Let us then set aside the word coercitio and attempt to answer the question, what is the origin and nature of the power of the magistrate ? The Romans themselves would have said that the answer was not far to seek. Tradition accepted, as the type of magisterial authority in its essence, the unrestricted power exercised by the magistrate of later times outside the walls (imperium militiae). The Romans of the historical epoch knew no such thing as a severance between supreme military and supreme civil authority. They merely distinguished between the space inside the walls (domi) and the rest of the world, which was comprehended in the locative case by the word militiae, ' on service.* This full imperium, then, governs all the world, less the city of Rome. Imperium militiae does not mean ' military command ' in any exclusive sense. It extends itself, alike in civil and criminal matters, over the whole population, Roman and non-Roman, though in the case of the latter it is concurrent with the jurisdiction of the magistrates of subject or allied communities. The distinction between military and civil justice, though in practice it can never have been wholly disregarded, is legally non-existent outside the walls. On the one hand the magistrate settles private controversies, even among the soldiers, under the form of peaceful law, making them enter into bail for appearance, 1 and sometimes referring doubtful questions to the decision of a jury of recuperatores. 3 On the other hand the imperium 1 See Esmein, on Mommsen's Strafrecht, in Nouvelle Revue His- tonque, June 1902, p. 349. * See stories about Sulla in Livy, Epitome, LXXXVT, and Scipio in Aulus Gellius, Noct. Att. VI. 1. 9. * See below, p. 216. VI ORIGIN OF MAGISTRACY 101 militiae explains not only exactions from a peaceful town, such as Livy *■ ascribes to the consul of 173 B.C. at Praeneste ; but the intervention of the Senate (that is to say of the consuls on the advice of the Senate), described by Polybius, 2 in cases of ' crime demanding public supervision, as treason, conspiracy, poisoning, and assassination, throughout Italy '. Mommsen 3 sums up the matter in these words: 'The ex- tension of the discipline of the camp to Italians and pro- vincials not on military service is the legal source of that abuse of the powers of the Roman magistracy, of which the last two centuries of the Republic show instances unparalleled in atrocity.' Such is the imfterium militiae. It- will be convenient to reserve for the next chapter the question how far Roman citizens in the provinces were, in the last age of the Republic, exempted from such jurisdiction ; and first to trace the theory of the jurisdiction itself. The origin of magisterial power at Rome has been de- picted by Ihering 4 in a presentation which, if necessarily conjectural, appears to me to be at least a highly probable conjecture. According to Ihering, all the other functions of the king are accretions on an original status of commander- in-chief. A leader in time of war was doubtless the primary necessity for the aggregate of households and gentes in which the Roman State took its rise. When once the principle was accepted that such a commander should not merely be appointed occasionally on each emergency, but should exist as a standing officer, it was only natural that the citizens should meet any fresh need which arose amongst them by committing an additional charge to the same person. When the growing sense of corporate unity demanded 1 Livy, XLII. 1. 6. ' Polybius, VI. 13.4. * Strafrecht, p. 29. 4 Ihering, Geist des romischen Rechts, Vol. I, p. 252 seq. 102 MAGISTRATE AS JUDGE CH. common sacrifices and a special intermediary between the State, as a whole, and the gods ; or when a convener and president of the general assembly of the burgesses was re- quired, or an arbiter to regulate the action of self-help among the citizens, or a leader to direct the common efforts in extinguishing a fire, 1 it would have been difficult for the Romans to pass over the man whom they had already acknowledged as their captain of the host. Still more certainly would this be the case when a person was needed to bring the force of the community to bear upon those whose action was endangering the safety or order of the State, more especially when the action was such as the People had already pronounced in a general decree to be worthy of repression and punishment. Here at last we come to the original criminal jurisdiction. It is perhaps best described by the words in which Ulpian 2 defines his conception of imperium merum as ' habere gladii potestatem ad animadvertendum in facinorosos homines'; though an earlier age would probably have spoken of the power of the axe rather than of the sword. 3 It is this which forms, in Mommsen's appropriate phrase, 4 ' the germ- 1 See Cicero, in Pisonem, n. 26. 2 Ulpian, Digest, II. 1. 3. The complementary imperium mixtum of the same passage would find its prototype in the magisterial action which has been described above in chapter III. 3 The sword took the place of the axe under the principate : so Ulpian (Digest, XL VIII. 19. 8. § 1) 'animadverti gladio oportet, non securi vel telo vel fusti vel laqueo vel quo alio modo '. The miraculous deliverance of martyrs always ceases to act in presence of the sword, which has become the proper symbol of the power of the civil magis- trate, who ' beareth not the sword in vain '. See references in Ldgendes Hagiographiques, by H. Delehaye, p. 109. For the jus gladii, see below, Vol. II, p. 166 seq. * Strafrecht, p. 543. He calls it, of course, coercitio (see above, p. 97), but the unfortunate nomenclature does not affect the main sense. VI IMPERIUM OF MAGISTRATE 103 cell of the criminal law.' Thus the imperium according to its original idea, though only a derived and magisterial power, conferred not by Heaven but by the will of the sovereign populus, is, when once conferred, a single and in- divisible power. The king is equally competent for all his functions, military, judicial, administrative, and religious, and the same imperium includes them all, though, no doubt, time and place will give him different opportunities for the exercise of these functions, according as he is inside or out- side the walls, and according as Rome is at war or at peace with her neighbours. This imperium or supreme magis- terial power is from the first the sole basis of criminal jurisdiction. This doctrine has been admirably stated by Mommsen in the passage which I have quoted at the head of this chapter ; but it must be confessed that other passages may be found in his Strafrecht which seem hardly consistent with it. ' The household-lord, the war-lord, the bearer of the civic im- perium,' x appear as separate entities on their way to become judges, but not yet worthy of the name. Their activities are all qualified by the term ' arbitrary '. Mommsen 2 makes ' the public criminal law begin only with the Valerian law, which submitted the death-sentence of the magistrate on the Roman citizen to confirmation by the corporation ' ; though in another passage 3 he admits that the arbitrariness is not altered, but only transferred when the last word is made to lie with the comitia. He states his ideal in an eloquent passage. 4 ' The criminal law begins when the arbitrary will ' of him who wields the power to punish and the right of ' judgement has limits placed on it by the law of the State or ' by custom as strong as law. The law indicates objectively 1 Strafrecht, p. 55. * Ibid., p. 56. * Ibid., p. 171. * Ibid., p. 56. 104 MAGISTRATE AS JUDGE CH. 'those immoral acts against which proceedings are to be * taken on behalf of the community and forbids similar pro- ' ceedings against any other acts. The law orders the process ' of investigation in positive forms. The law establishes a ' corresponding satisfaction for each crime. . . . From that ' time forth there is in Rome no crime without a criminal law, ' no criminal procedure without a law of procedure, no punish- * ment without a law of punishment.' This is indeed an ideal ; but I believe that it is impossible to fix the Valerian law or any other enactment as the date from which the ideal is realized. Here, as in the case of the civil procedure,- we must look for a gradual, almost an insensible development, and it is not safe to exclude even the rudimentary beginnings from the conception of criminal law, or to draw any hard and fast line between magisterial power and magisterial judicatio. This may be seen pretty clearly when we come to examine Mommsen's statement of the order of development of such judicatio. He is probably right in holding that ' public jurisdiction ' first begins in the case of the Roman citizen who, by his own act, has placed himself in the position of an enemy (perduellis). The guilt, from the Roman point of view, of the foreign enemy is notorious, and his due is death. ' In hostium numero habere ' is the Latin euphemism for a general, massacre. 1 But the question whether a man who was once a citizen falls under this category is one which may sometimes demand inquiry. 2 ' The magistrate pro- ceeds to inquire, and here we have the beginnings of a * criminal trial, no matter whether he decides on his own 'authority or whether, as from the first he is justified in ' doing, though not bound to do, he submits to the people the 1 Caesar, de Bello Gallico, I. 28. 2. 2 Strafrecht, p. 59. VI MAGISTRATE AND COMITIA 105 ' question, whether to remit the death-penalty on the man 'guilty of injuring the community or to let that penalty 'have its course.' In this passage Mommsen seems to me to be advancing along the true line, and to apply the necessary corrective to the generalities which he has set forth in his former state- ment. We have here judicial inquiry before we have any judicial power except that of the magistrate. Perhaps we may safely go further, and conjecture that it is the action of the magistrate in each particular case, as it arises, which paves the way for the general precepts of the law, and that for long stretches of time there would be a gradually in- creasing number of laws laid down respecting crime for the information both of citizen and magistrate, without this advertisement at all implying, as in Mommsen's ideal pre- sentation, the ' forbidding similar proceedings against any other acts '. The same difficulty recurs when we come to later times. Here, too, Mommsen seems to me to lay too much stress on the opposition which he sees between judicatio and coercitio. ' Where,' he writes, 1 ' the law (in which, how- ' ever, we must not forget to include the wide and elastic ' conception of treason against the State) does not ordain any ' punishment, the Roman magistrate is entitled to exercise ' his coercitio, so far as this extends, 2 but the procedure by ' magistrate and comitia can find no place.' I can find no authority for this doctrine. If it be true, the paradoxical consequence will follow that each fresh criminal law does not create a fresh liability to punishment for the offender, but 1 Strafrecht, p. 151, note 1. 2 It is not quite clear whether Mommsen intends coercitio in this sentence to refer only to the petty punishments inside the appeal limit. In the text I have assumed that he uses it in the wider sense, ■which covers cases like that of Matienus (see below, p. 1 1 1 ). 106 MAGISTRATE AS JUDGE CH. only removes another offence from the category of those which the magistrate may punish as he pleases to the category of those which he can punish only in a certain way, and under restrictions which provide every chance for escape. It would seem then as if that which the criminal has to dread is the absence rather than the presence in his case of this ' law of punishment without which there is no punishment '. I believe on the contrary that, whether by stretching the definition of perduellio or otherwise, the magistrate might treat any offence as an injury to the com- munity, and condemn the offender, subject (after the lex Valeria) to the right of the citizen to have the case tried out on appeal. The trial of the censors of 169 B.C. for con- tempt of tribunician authority, 1 and that of fraudulent con- tractors in the Second Punic War, 2 may be cited as instances. It is not necessary to suppose that it had been laid down beforehand that the particular actions of the accused were liable to prosecution, whether for a capital or for a pecuniary penalty ; the tribunes by prosecuting in each case effectively established the liability. In the free discretion of the magistrate to name whatever punishment he pleases for any offence is to be found the only probable explanation of the statement of Polybius,* that to win an office by bribery is a capital crime. In view of the extreme mildness of Sulla's law (which inflicted only a ten years' disqualification for office), it is impossible to suppose that there was in the previous generation any positive law ordaining the punishment of death for that offence. That tribunes had from time to time instituted 1 Livy, XLIII. 16. • Livy, XXV. 3. * Polybius, VI. 56. 4. I cannot agree with Mommsen who thinks (Strafrecht, p. 668) that the passage of Polybius justifies him in adding bribery at elections to the list of capital crimes recognized in the Twelve Tables. VI CRIME IN TWELVE TABLES 107 a capital trial against some persons suspected of it is how- ever quite likely : for ' the tribunician criminal procedure ', as Mommsen says elsewhere, 1 ' extended itself over the whole sphere of State trials '. The cases which I have named fall under the category of quasi-political offences, which in later times were dealt with in practice by the tribunes of the plebs, who gradually stepped into the place which, according to the primitive theory of the constitution, would more properly be filled by the magistrates of the Roman People, consuls, quaestors, or duoviri perduellionis. But this same question arises with respect to another class of crimes, of which parricidium is the type, and which were more commonly punished by the quaestors, who in old times bore the title of quaestores parri- cidii? Certain acts, which are primarily offences against individuals, were nevertheless held to be so dangerous to the public that, at least as early as the Twelve Tables, the com- munity interested itself in their punishment. Under this head fall the murder of a freeman, arson, the theft of grow- ing corn, and witchcraft. 3 ' All these are treated as public 1 Straff echt, p. 1 56. 2 See above, p. 22. 3 Especially in the matter of charms to draw away your neighbours' crops ('fruges alienas pellicere veneficiis,' Pliny, Hist. Nat. XVIII. 6. 41). In another passage (XXVIII. 2. 17) Pliny obviously takes ' qui fruges excantassit ' and ' qui malum carmen incantassit ' to be equally practisers of witchcraft, treating both of them under the head of ' incantamenta carminum ' (ibid., verse 10). Cicero, on the other hand (de Rep. IV. 10. 12), Horace {Satires, II. 1. 82), and Festus (s.v. occentassit) interpret the ' malum carmen ' of the Twelve Tables as referring to the public utterance of scandalous verses against an individual. Bruns (Fowls', p. 29) makes occentare in this sense a distinct crime from incantare. On the whole I am inclined to agree with Esmein (Nouvelle Revue Historique, June 1902, p. 352) that the two are the same, that the authority of Pliny must prevail, and that Cicero and the Augustan writers have misunderstood the words malum carmen and occentare. Mommsen (Strafrecht, p. 60) takes the opposite view. 108 MAGISTRATE AS JUDGE CH. ' crimes, and every trace of a co-operation of the person ' immediately injured or his gentiles thereby disappears.' x There are besides certain offences which occupy a position midway between this class of crimes and -perduellio. Such are the acts of those who appropriate the goods of a temple (sacrilegium), steal the public cattle (peculatus), or injure the public roads or buildings. A certain division of labour may be noticed in the crimes dealt with in historical times by the several magistrates. We find the activity of the tribunes generally aimed at offences which directly affect the State, while the quaestors are heard of in murder trials, and the aediles in offences against public morals or infringements of agrarian and other social legislation. Mommsen a is inclined to believe that this division answers to a difference in the powers of the several magistrates ; but this assumption is unnecessary in itself, and seems inconsistent with the claim which Cicero 3 makes as curule aedile to bring Verres before the People on a charge of majestas. The great difficulty is to discover what was done in the case of new crimes, not as yet mentioned in the Statute book. What, for instance, became of the first forger ? It is impossible to suppose that because no laws had yet been passed denning the offence and naming a penalty he would therefore enjoy impunity. I believe that the magistrate (preferably the quaestor) would condemn him for a new crime, and leave him to be tried on appeal to the people. The crime might next become the subject of an edict of the magistrates, 4 and finally the people would be called upon to pass a definite law against it. 1 Mommsen, Strafrecht, p. 60. * Strafrecht, p. 157. 3 Cicero, in V err em, I. 5. 13. 4 As in the case of Marius Gratidianus, who as praetor entered into VI COERCITIO 109 The power of judicatio originally belonging in all its sim- plicity to the magistrate was limited, without being re- moved, by the Valerian laws. The consul was subject, as the king had never been, to the interference of an equal colleague, and was subject likewise to the possibility of appeal in serious cases. These restrictions apply only inside the walls, and outside the original imfierium appears revealed in all its fullness. Even inside the walls it is unrestricted against all but Roman citizens. The magistrate decides on his own authority, or with the assistance of such advisers as it may please him to consult, on every allegation of crime against any but the members of the privileged class of citizens of Rome. If he finds the accusation proven, he scourges or puts to death, according to his discretion. Marcus Marcellus, consul in 51 B.C., scourged in this manner a misdemeanant Transpadane, simply to show that he did not agree with Caesar's contention that the colonists of the land between the Alps and the Po were Roman citizens. As against citizens, the republican magistrate, if he wishes to act without the confirmation of his sentence by the People, must commonly confine himself to the moderate punish- ments which constitute coercitio, in the narrower sense of the word. He can fine the citizen a sum not exceeding 3,200 asses (£30) : x he can seize any of his chattels and publicly destroy them (concidere pignus) : he can throw him into prison : he can order him to quit Rome (relegatio) : 2 an agreement with his colleagues and the tribunes to issue a joint edict about the coining of false money (' conscripserunt communiter edictum cum poena et judicio '), and then took all the credit to himself. Cicero, de Officiis, III. 20. 80. 1 Festus, s.v. peculatus. 1 Festus, s.v. relegati, says that this may be inflicted ' edicto magistratuum '. Mommsen (Strafrecht, p. 48, note 1) mentions several categories of persons (actors, &c.) to whom it was from time to time applied. Perhaps, however, the more interesting cases are 110 MAGISTRATE AS JUDGE CHI it is possible that down to the time of the Porcian laws he can even flog him. 1 All these operations are, however, sub- ject to the auxilium of a colleague or of a tribune. There are, however, some more serious cases in which, for one reason or another, appeal is not allowed to interfere with the full course of magisterial justice. Mention has been already made of the tribunician self-help, of the execution of the seducer of a Vestal, and that of the offender against international right ; 2 the disputed topic of criminal com- missions, like that against the Bacchanalians, and of the powers exercised under the senatus consultum ultimum must be reserved for the present. Besides these we find two un- doubted instances of great importance. In the first place, the appointment of a dictator, before the epoch when the powers of the office were curtailed, 3 suspended the right of Provocatio ; and in the last days again of the Free State, the dictators reipublicae constituendae, Sulla and Caesar, and the triumvirs who succeeded to their power, were similarly un- fettered. Secondly, the distinction in the criminal law, accord- ing as it is exercised over soldiers and over civilians, which, as. we have seen, fades away before the universal competence where this power is directed against an individual, as when Gabinius, consul of 58 B.C., expelled a Roman knight, Aelius Lamia, for up- holding with too great fervour the cause of Cicero (pro Sestio, 12. 29), or when Cicero himself as consul professed to humour Catiline and give him an opportunity of joining his confederates in arms by order- ing him to quit the city (Cicero, in Catilinam, I. 8. 20). For the subsequent history of relegatio see below, Vol. II, p. 64. 1 I think, on the whole, that Mommsen (Strafrecht, p. 42, note 1) has made out his case, that the ' necare et verberare ' forbidden by the Valerian law must refer to scourging preliminary to death, and that stripes alone were not recognized as a substantive punishment in any regular criminal trial, but were left as a means of coercitio in the hands of the magistrate until forbidden by the elder Cato (see Strafrecht, p. 47, note 3). See also below, p. 125. ' See above, pp. 13, 20, and 30. ' See Festus, s.v. optima lex. VI MILITARY CRIMES III of the magistrate outside the walls, does as a matter of fact appear within the city ; for military crimes are dealt with inside the walls in a fashion quite distinct from the course of j ustice which ordinarily obtains there . A certain Matienus, in the year 138 B.C., was scourged and sold as a slave for deserting the army in Spain ; 1 the Campanian deserters (cives Romani sine suffragio) who had seized Rhegium after the war with Pyrrhus were captured later on and were beheaded in the Roman Forum. 2 Some objection was raised by the tribunes to the legality of this proceeding, but they did not insist so far as to interpose their auxilium. Persons who tried to evade military duty were subject to the same summary process. Augustus 3 sold as a slave a Roman knight who had maimed his sons with this object ; a like punishment fell on all who neglected at the census to in- scribe their names on the list of those liable to service, and M'. Curius, consul in 275 B.C., treated in the same way the first man who failed to answer to his name at a sudden levy. 4 If we ask how we are to justify such exceptions to the rule which Cicero lays down with such clearness that no Roman can be deprived of citizenship or liberty, we can hardly do \ Mommsen (Strafrecht, p. 43, note 2) has admirably solved an incidental difficulty in connexion with Matienus. The Epitomator of Livy (Book LV), our authority for the case, says ' accusatus est apud tribunos plebis '. It is obvious that it must be the consul and not the tribune who acts in a case of military discipline ; but appeal can always be made to the tribunician auxilium, and in this case the tribunes assembled in an administrative council, which Livy treats as a kind of court, and heard the plea of the accused before deciding not to interfere in his behalf. We may compare the case of Sthenius (Cicero, in Verrem, II. 41. 100), which is so far parallel that here too the tribunes hold a quasi- judicial inquiry in order to decide how to exercise their executive functions (see below, Vol. II, p. 35). 2 Valerius Maximus, II. 7. 15. 3 Suetonius, Augustus, 24. * Valerius Maximus, VI. 3. 4. 112 MAGISTRATE AS JUDGE CH. better than accept Cicero's own answer, 1 that by refusing the duties of citizens and freemen such persons have of their own action renounced their status and its corresponding rights. Mommsen 2 condemns this explanation as ' Sophis- tic ' ; but it is difficult to suggest another theory which will cover the facts. Whatever may have been the theory, the practical. limit set to magisterial power and the practical compulsion not to use it without consent of the people, is to be found in the tribunician auxilium. The instance of the council of Tri- bunes who sat on the question of Matienus 3 is a typical one. Unless Matienus' case had been very bad indeed, so bad that no possible sympathy could be aroused for him, the tribunes would certainly have forbidden the severe action taken against him. In delineating the respective spheres of the comitial procedure and of independent magisterial action we must remember that the magistrate who elects to take the first method is pretty safe, so long as he confines himself to traditional practice, from the interference of the tribu- nician veto, whereas if the more arbitrary course is preferred it has to be taken under the scrutiny of ten pairs of watchful eyes. The tribune was eager to pounce on every oppor- tunity for justifying his existence and for vindicating the rights of the private man against any use of the magistrate's power which could be considered tyrannical or excessive. The practical result was that, except in a few specified cases, such action within the walls was limited to the petty matters 1 ' Ipsum sibi libertatem abjudicavisse,' Cicero, pro Caecina, 34. 99. Cf. Arrius Menander in Digest, XLIX. 16. 4. § 10 'ut proditores libertatis in servitutem redigebantur '. * Strajreckt, p. 945, note 1. Mommsen himself can only repeat the word coercitio. I gather that Girard (Org. Jud., p. 108) takes the same view as I do. ' See above, p. 111, note 1. VI RESTRAINT BY TRIBUNES 113 which are the subject of ' coercitio ' in its narrower sense, 1 and that if the magistrate wished to punish severely, he would not be allowed to do so unless he put his sentence in such a form as to give the opportunity for the decision of the People. It is evidence of the growing frequency and importance of an offence when we find that it becomes worth while for the community to interfere by passing a law against it. I have said above 2 that I do not believe that the passing of such a law was a necessary condition precedent of an appeal to the People ; yet practically the law marks out the particular offence as one deserving of severe punishment, and encourages the magistrate to hope that his action will be supported, when he comes before the People to maintain it. A way has then been provided in which the magistrate, without incurring the liability to blame or hindrance, may pretty effectively deal with the misdemeanant. If on the other hand an offence becomes very prevalent or very dangerous, the remedy is a step backwards to magisterial power, sometimes exercised independently, if the tribunes acquiesce, as on Matienus, sometimes stirred up (as we shall see later on) 3 by a charge from senate or People requiring the magistrate to hold a special quaestio without appeal on the matter specified. Let us return for a moment to the thesis with which the chapter opened — that every sentence is a magisterial pro- nouncement. The principle was fully recognized by the Romans themselves, and it led to practical results, which differentiate their criminal law from that of all other nations. The excess of democracy led the Greeks to execute capital punishment somewhat recklessly, for the criminal was 1 See above, p. 109. * See above, p. 105. ' See chap. XIII. 1110 1 114 MAGISTRATE AS JUDGE CH. VI regarded as matched against the wrath of the people, and the power of the people must not be limited. So at the trial of the generals after Arginusae, it was urged that ' it was intolerable that any one should hinder the people from doing what it pleased '- 1 In Rome the opposite consequence is drawn ; the people never strikes directly at an offender ; 2 the accused is matched not against the people, but against the magistrate, and so popular liberty comes to be measured by the extent to which the private man is allowed to brave the magistrate by disputing his sentences and by evading or alleviating their effect. So far as citizens were concerned, the criminal law of the Roman Republic, in spite of abundant threats of capital punishment, became in practice the mildest ever known in the history of mankind. Xenophon, Hellenica, I. 7* I2 8«i>6k tlvai « /uj ns iaaei uses ' multam petivit ' for damages sued for under this law (see Huschke, Multa und Sacramentum, p. 259). This, however, must be taken as a literary rather than a legal expression, like ' multam depel- lere ', ' to avert loss,' in Cicero, ad Familiares, V. 20. 4. * Mommsen (Juristische Schriften,Vol. Ill, p. 380) lays it down that a 'publicum judicium' properly . . . ' denjenigen Privatprozess be- zeichnet, der im Interesse der Gemeinde gef iihrt und darum gescharft wird, und dass die Geschwornengerichte des Quastionenverfahrens aus diesem gescharften Privatprozess hervorgegangen sind.' The puzzling phrase ' judicium publicum rei privatae ', which Cicero uses (de Natura Deorum, III. 30. 74) about the lex Plaetoria (framed to prevent the cheating of minors), is explained (Strafrecht, p. 181, note 6) in a similar way. See also below, vol. II, p. 17, note 2. ' In this last case the suit is called ' actio popularis ' ; Paulus, Digest, XLVII. 23. 4. ' Lex Salpensana, ch. XXVI ; lex Malacitana, chaps. LVIII, LXII, LXVII ; and repeatedly in the lex Ursonensis. ' This recently discovered fragment finds its place in the seventh edition of Bruns' Fontes, p. 120. The text is printed likewise in Mommsen, Juristische Schriften, Vol. I, p. 146, and in Girard, Textes de Droit Romain, p. 62. The date is probably soon after the Social War. The clause in question (verse 35) runs : ' quanti id aedificium erit tantam pecuniam municipio dare damnas esto, ej usque pecuniae quei volet petitio esto. Magistratus qui exegerit dimidium in publi- cum referto, dimidium in ludo consumito." X CIVIL SUITS FOR PAYMENT OF FINES l8l praetor's edict also we find actionem dabo 1 for fixed amounts in favour of whosoever chooses to sue in case of violation of sepulchres, and the same freedom is allowed by Caesar's Agrarian Law against those who remove the boundary stones. 2 On the other hand the right to sue is limited to magistrates in another clause of the Tarentine Law, that con- cerning pecttlatus, 3 in the Roman Law of the Bantine Tables, 4 and probably, though the text is defective, in the rules for pre- serving sepulchres, known as the Fragmentum Tudertinum? Actions for recovery of fines for infringing a Law of Sulla's about tribunician intercessio were tried before the praetor urbanus, and must therefore have been of the nature of civil suits, but as in the only known case 6 no mention is made of the plaintiff we cannot tell whether or no he were necessarily a magistrate. In another case, 7 that of Junius, sued likewise before the praetor for irregularities committed when he presided in a quaestio, the plaintiff was tribune at the time ; but Cicero represents this as a scandal, and says that he could still have sued, if he had waited till he was a private man, as he was apparently when Fidiculanius Falcula was accused and acquitted ' paullo sedatiore tempore '. 8 Parallel to the civil suit, whether instituted by magistrate or private citizen, we have surviving the more obvious, but probably more cumbrous and uncertain method of direct 1 Ulpian, Digest, XL VII. 12. 3. 2 Callistratus, Digest, XLVII. 21. 3. ' In verse 4 : ' Quei faxit, quanti ea res erit, quadruplum multae esto, eamque pecuniam municipio dare damnas esto ej usque pecuniae magistratus, quei quomque in municipio erit, petitio exactioque esto.' * Verse 9, Bruns, Fontes 1 , p. 54. * Verse 5, Bruns, Pontes' 1 , p. 158. 6 That of Opimius, Cicero, in V err em, I. 60. 155 'mulcta petita est apud istum praetorem '. ' Cicero, pro Cluentio, 33. 91 'Multam petivit ; qua lege ? quod in legem non jurasset '. * Cicero, ibid., 37. 103. 182 PECUNIARY PENALTIES CH. magisterial action, followed, if the fine be beyond the limits, by condemnation or acquittal before the People. In the extant documents sometimes the entire proceeding is indicated, as in the Law dedicating a temple in the Sabine town of Furfo ; x sometimes we find expressly authorized the initial stage ' multare ' or ' multam irrogare ', 2 some- times the final stage ' populi judicio petere ' ; 3 there can be no doubt that in each case the one follows on the other. The magistrate is not always free to make the fine, even subject to the appeal, as large as he pleases. We find the maximum sometimes specially limited, whether to half of an offender's property, 4 or to the fixed sum named in the particular law as recoverable either by the civil or the criminal action. 5 In the wording of certain of the laws to which reference has been made we find as an alternative proceeding to the fine that the magistrate is allowed ' in sacrum judicare '. In the lex Silia de ponderibus, 6 for instance, we have ' eum quis volet magistratus multare . . . liceto, sive quis in sacrum 1 Bruns, Fontes 1 , p. 284, in verse 15 we have 'si quis heic sacrum surupuerit, aedilis multatio esto, quanti volet ; idque veicus Furfen- sis major pars fifeltares, sei apsolvere volunt sive condemnare, liceto '. ' Fifeltares ' probably means 'burgesses' ; but see below, Vol. II,p.i45. 2 So lex Luci Lucerini, verse 8 (Bruns, Fontes', p. 283) ' Seive macisteratus volet multare licetod ', and in the Bantine Table quoted above, p. 177, in both cases as alternative to the civil suit, and in the lex Silia de ponderibus quoted on the same page. 1 In the Fragmentum Tudertinum, verse 6 (Bruns, Pontes', p. 158). The word ' petere ' is here used in a wide sense ; it is more commonly confined to the civil suit. See Mommsen, Juristische Schriften, Vol. Ill, p. 380, note 1, and Strafrecht, p. 1015, note 4. 4 In lex Silia and in the Bantine Table (Bruns, Fontes ', pp. 46 and 54). 6 In the Fragmentum Tudertinum and the lex Luci Lucerini (Bruns, Fontes 1 , pp. 158 and 283). 8 Verse 13, Bruns, Fontes', p. 46 ; and the same choice is given in the Fragmentum Tudertinum, verse 6, ibid., p. 158. X IN SACRUM JUDICARE 183 judicare voluerit, liceto '. It is probable that the distinc- tion relates only to the ultimate destination of the money recovered 1 — the multa will go to the public treasury, the in sacrum judicatum to the service of some god or temple, just as we have seen the legal wager become a sacramentum when expended on victims for sacrifice. 2 The powers of the magistrate and the limits within which he is free to exercise them without the concurrence of the people are not affected by the choice of one or the other alternative. The secular destination of the multa and the religious destination of the in sacrum judicatum both affect only a specified portion of a man's goods ; but it is likewise possible for a forfeiture to be incurred either for secular or religious purposes of the whole of his possessions. From the earliest times we find the doctrine that the goods of the traitor who has made himself a public enemy became the property of the State (publicatio) ; and side by side with this we find that the goods of the homo sacer are forfeited to the gods. It will be remembered that Terminus 3 claims not only the life but the oxen of the man who has ploughed up the boundary stone. The short title of the Valerian Law of 509 b. c. is ' de sacrando cum bonis capite ejus qui regni occupandi consilia inisset ' ; 4 and Festus 5 in his definition of sacratae leges lays it down that the offender ' sacer alicui deorum sit cum familia pecuniaque '. In the case of an offender who violates the sanctity of a tribune, the Law of Valerius and Horatius (449 b. c.) prescribes that ' ejus caput Jovi sacrum esset, familia ad aedem Cereris, Liberi Liberaeque venum iret '. 6 Here the procedure answers exactly to that of the 1 So Mommsen, Strafrecht, p. 1015. * See above, pp. 55 and 59. * See above, p. 5. * Livy, II. 8. 2. 5 Bruns, Fontes 1 , App., p. 34. ' Livy, III. 55. 7. 184 PECUNIARY PENALTIES CH. secular confiscation, where the quaestor enters into possession of the universality of the goods of the criminal or the public debtor, which are then sold for the benefit of the State. The practice as regards the debtor is described in the lex Acilia. 1 As regards the criminal convicted, by failing to answer 2 or otherwise, on a capital charge we find that confiscation existed in the time of the Second Punic War. 3 It is almost certain that it was not put in force in the next century against C. Gracchus. 4 It seems at any rate, in the period immediately before Sulla, to have affected (if any one) the perduellis only. The Will of the parricide Malleolus, who died in the sack, 5 was contested indeed, but only by his heirs at law ; there was no claim on the part of the State. 8 Under the system of trials before the standing jury-courts confisca- tion must have entirely dropped out, for Suetonius 7 tells us on the authority of Cicero that till Caesar's dictatorship convicts integris patrimonii^ exulabant. If we suppose that the venum iret of the Law of Valerius and Horatius is typical, as is probable, of all proceedings under consecratio, 1 Verse 57. See below, Vol. II, p. 7. 8 This is held to be equivalent to confession. 3 As in the case of Postumius (Livy, XXV. 4. 9). * Plutarch, Caius Gracchus, 17. S> savs that his widow Licinia was deprived even of her dowry. This must be a mistake on his part ; for the jurist Javolenus (in Digest, XXIV. 3. 66) informs us, on the authority of Labeo, that P. Mucius Scaevola gave sentence for Licinia in an action brought by her against her husband's estate for damage done in the course of his insurrection. ' Quod res dotales in ea seditione, qua Gracchus occisus erat, perissent, ait, quia Gracchi culpa ea seditio facta esset, Liciniae praestari oportere.' Mommsen, Straf- recht, p. 10 10, note 3, allows himself to be misled by Plutarch. ' Cicero, ad Herennium, I. 13. 23. ' Mommsen, Strafrecht, p. 650, note 2 ; and 1008, note 2. Under the principate he would have been incapable of owning or bequeathing property : ' qui ultimo supplicio damnantur, statim et civitatem et libertatem perdunt.' Gaius, Digest, XL VIII. 19. 29. ' Suetonius, Julius, 42. X PUBLICATIO AND CONSECRATIO 185 it will not be the actual chattels which fall into the possession of the temple, but the money realized by their sale. The consecratio bonorum, originally a corollary and con- comitant of the sacratio capitis, survives with a fitful and disputed attempt at an independent existence. Dionysius tells us how in the year 455 B. c. certain persons of the Cloelian, Postumian, and Sempronian gentes were accused of coercing the tribunes, and that as a mild measure 1 the sentence against them was not for death or exile but for the consecration of their property to Ceres. Their goods were sold accordingly, but bought in by their friends and supporters. There is no reason to attribute historical accuracy to this narrative ; but in one way or another it found its place in the current version of Roman history, and it is instructive if viewed as an attempt to furnish a precedent for later preten- sions. We have seen 2 how the tribune who considered himself outraged claimed the right of immediate physical vengeance, even to the infliction of death, on the offender against the Sacred Laws. It would have been very con- venient for the demagogue who had succeeded in getting himself elected tribune, if he could have established the right of seizure against the property of his political opponent parallel to that against his person, and such action was in fact more than once attempted, but in no single instance with practical effect. The reason probably is, that there was no Tarpeian rock available for the more profitable execution against the goods of the victim, nothing answering to the grip of the sacro- sanct hand 3 by which Atinius Capito hurried Metellus, the censor of 130 b. c, to execution, or Flavius cast another Metellus, the consul of 60 b. c, into prison. In the case of * Dionysius Halicarnasensis, X. 42. * See above, p. 16. * See above, p. 15. l86 PECUNIARY PENALTIES CH. the goods, if the tribune wished to proceed by the rough methods of self-help, there would be ample time in the long process of seizure and sale by auction for the interposition of a colleague and his veto ; and the assailant would be bidden to proceed by methods under which provocatio was admissible. In the case of the Cloelii in Dionysius 1 the question is represented as brought before the people for ultimate decision though the accused attempt no defence, and in the later instances the practical necessity for allowing provocatio is clearly seen. Either the validity of the consecratio proved dependent on the result of a trial for perduellio, or the necessity for a popular vote prevented the matter from being carried further. In none of these attempts can the tribune have seriously hoped to carry any heavy or arbitrary pecuniary penalty through the obstacles of the intercessio and the assembly. Rutilius in 169 B.C. commenced his operations against the censors by consecrating the goods of Tiberius Gracchus ; 2 had his colleague Claudius been con- demned, and had Gracchus, as he threatened, shared his exile, his goods would doubtless have fallen, as a consequence of the consecratio, to the temple of Ceres instead of to the Treasury. But as both censors were acquitted by the people on the charge of perduellio, the consecratio went for absolutely nothing. In like manner Atinius vainly con- secrated the goods of Metellus, 3 after being stopped from killing him, and the same thing happened in case of Lentulus, the censor of 70 b. c. Again, when Clodius consecrated the goods of Gabinius, and Ninnius in turn those of Clodius, 4 though each tribune set up an altar and employed a flute- 1 Dionysius Halicarnasensis, X. 42. See above, p. 185. ' Livy, XLIII. 16. 10. 3 Pliny, Hist. Nat. VII. 44. 143. See above, p. 14, note 4. 4 Cicero, de Domo, 47. 124. X CONSECRATIO BONORUM 187 player to pipe an accompaniment to the words of banning, yet, as the people were not summoned to confirm or quash the action of their officer, that action remained, as Cicero expressly tells us, in every case * without effect. The con- secratio is not, like the action of the tribune against the person, a vague terror 2 hanging over the head of every one who dares to rebel, but a bolt often discharged and always harmless. Cicero quotes these cases, though they are not absolutely parallel, in his defence of the site of his house, which had been consecrated by Clodius. If Clodius' decree of outlawry against Cicero had been valid, and if it had not been sub- sequently repealed, all Cicero's goods would have become the property of the State, not by consecratio but by publicatio. But even after Cicero's rights were fully restored in this respect, there was still some doubt whether the consecration of a particular site, though a robbery demanding compensa- tion, were not effective so far as concerned the sanctity of that plot of ground. Fortunately Cicero 3 was able to show a definite law (the lex Papiria) which forbade the consecra- tion of a site, even by wish of the owner, without an express decree of the People, and this Clodius had neglected to obtain. 1 These cases are discussed in detail by Cicero, de Homo, ch. 47 and 48. * 'Tribuniciique sanguinis ultores esse praesentes,' Cicero, post Reditum in Senatu, 13. 33. See above, p. 15. 1 Cicero, de Homo, 49. 127 seq. CHAPTER XI THE TRIAL OF CAIUS RABIRIUS The most dubious and interesting case of a pecuniary penalty is that connected with the trial of Caius Rabirius in Cicero's consulship for the killing of the tribune Saturninus thirty-seven years before. A new light was shed on this State trial when Niebuhr 1 discovered in a palimpsest the peroration of Cicero's speech for the accused, of which the earlier portion alone had previously been known. The questions arising out of this discovery have been eagerly debated by a host of modern scholars, amongst whom Huschke, 2 Schneider, 8 Schulthess, 4 Wirz, 5 and Heitland, 6 may be mentioned. The whole problem is so complicated that it will be worth while to devote a chapter to its elucidation. Rabirius was undoubtedly condemned, as Horatius had been five hundred years before, by duumviri perduellionis, in this case by Caesar and his cousin Lucius ; he was likewise undoubtedly on his trial before the people in its comitia centuriata, when the praetor Metellus Celer struck the flag 1 B. G. Niebuhr, Ciceronis pro Fonteio, C. Rabirio, &-c, Fragmenta, Romae, 1820. 2 Huschke, Multa und Sacramentum, Appendix II. 3 A. Schneider, Der Prozess des C. Rabirius, in Festschrift, Zurich, 1889. 4 O. Schulthess, Der Prozess des C. Rabirius, Frauenfeld, 1891. * H. Wirz, Perduellionsprocess des C. Rabirius, in Fleckersen's Neue Jahrbucher, 1879, p. 177 seq. e W. E. Heitland, Pro Rabirio, 1882. CH. XI NIEBUHR AND DIO CASSIUS 189 on the Janiculum arid so broke up the assembly. 1 Further, a multae irrogatio entered in some form or other into the proceedings, for Cicero distinctly recounts its heads. 2 This multae irrogatio is the work of Caesar's tool, the tribune Labienus. It is certain likewise that at the moment when Cicero delivered the peroration contained in Niebuhr's palimpsest, Rabirius was not in danger of his life, but was in danger of being compelled to go into exile. Finally, no one doubts that Rabirius escaped scot-free in the end. Here end the matters on which modern scholars are agreed. As to the order and the nature of the various stages of the proceedings, I was inclined to think that every possible combination of the circumstances had been exhausted, until I found myself carried away by the universal tendency, and driven to devise yet another version of the story, founded on the supposition that the accusations of Caesar and of Labienus were parallel and simultaneous. Here are some of the solutions of my predecessors. First Hypothesis. The multae irrogatio named by Cicero was a preliminary to the whole business, and dropped when the capital pro- ceedings came on ; or perhaps it was not aimed directly against Rabirius at all, but against a third party, 3 and involved Rabirius only by implication. The only trial was 1 Dio Cassius, XXXVII. 27 and 28. Niebuhr (loc. cit.), however, is inclined, with many apologies to Dio, to reject the story of this incident altogether. I am not aware that any other scholar has expressed agreement. That so great a critic should be driven to this desperate method of extrication shows the difficulty of the problem. As a second string, Niebuhr would accept the second of the three hypo- theses detailed below. s Perhaps I ought not to include this amongst the certainties, for Schneider (loc. cit., p. 25) is inclined to take the words multae irrogatio as in this passage only metaphorical ; but this seems very improbable. ' So Zumpt, Criminalrecht, I. ii, p. 472. 3Q0 TRIAL OF RABIRIUS CH. the duumviral condemnation followed by appeal to the people assembled in comitia centuriata under the presidency either of Metellus or of the duumvirs, on which occasion Cicero delivered the extant speech, and Metellus struck the flag. This action ends the whole matter. 1 Second Hypothesis. The proceedings begin with a plebiscitum proposed by Labienus, which orders the appointment of duumvirs to try. the case on the model of the trial of Horatius as recorded in Livy. 2 After this is passed, Cicero and the senate contrive to modify the procedure so as to substitute 3 the penalty of exile and confiscation for that of actual crucifixion ('perduel- lionis judicium a me sublatum '). 4 Next comes the sentence of the duumvirs, the appeal to the comitia centuriata, and Metellus' stratagem of the flag, to which, by the way, rather than to any modification of procedure, Lange 5 would refer the collapse of the judicium perduellionis. The disruption of the assembly does not, however, end the matter. After the capital sentence has miscarried, Labienus makes a fresh start and proposes a fine 6 of sufficiently large amount to drive Rabirius into exile. This has to be tried out before the tribal assembly of the filebs. At some stage of the latter process, Schulthess thinks necessarily 7 at the last stage, the 1 Drumann, Vol. Ill, pp. 162-164. 2 See above, p. 1 29, note 4. 3 Heitland, loc. cit., p. 32. 4 Cicero, pro Rabirio, 3. 10. Lange, Romische Alterthiimer* (1867), Vol. II, p. 525. 6 Having as a precedent in this order of proceeding the case of the misconduct of P. Claudius Pulcher at Drepana ; see above, p. 155, ' Schulthess, Der Prozess des C. Rabirius, p. 33. I must admit that the phrase, which he quotes, ' hodiernus dies ' (Cicero, pro Rabirio, 2. 5), would be more appropriate if the voting were to follow immedi- ately after the speech. I confess that this is the only passage which XI HYPOTHESES igi extant speech of Cicero is delivered. Then follows either the withdrawal of the charge, or the acquittal of the prisoner by the vote of the People. Third Hypothesis. The duumvirs condemn Rabirius to crucifixion and appeal is laid against their sentence : at this stage the senate inter- venes and quashes the sentence of the duumvirs as illegal (possibly by a re-enactment of the lex Porcia 1 ), so that the appeal never took place ; 2 or, as a variant, the appeal does take place and after a speech (not preserved) from Cicero the People votes acquittal 3 (perduellionis judicium a me sublatum). In any case the triumviral trial has collapsed, and that by some instrumentality other than Metellus and his flag, which is still in the future. Next Labienus proceeds as tribune to bring a fresh charge of perduellio, as many a tribune had done before him. 4 As this is a ' capital ' charge he must, of course, ' ask for a day of the comitia centuriata '. The multae irrogatio, which must come before the comitia tributa, is concomitant with this, but relates only to the minor charges. At one of the condones in the Forum, prior to the actual ' perduellionem tibi judico ' of the tribune, which will finally commit him to a centuriate trial, 6 Cicero delivers his extant speech. After this the proceedings follow the normal course 6 of a capital trial through the trinum nun- dinum till the day of decision on the Campus, the tribune presiding over the comitia with borrowed auspices. 7 On makes me uneasy about my own theory ; but I hope that my explana- tion of it (below, p. 202, note 1 ) may serve. 1 See Wirz, Perduellionsprocess des C. Rabirius, p. 178. 2 So Rubino, R&mische Verfassung, p. 315, note; Wirz, loc.cit., p. 200. * So Schneider, Der Prozess des C. Rabirius, p. 38. * Above, p. 107. 6 Above, p. 155, note 2. * Above, p. 154. • ' Above, p. 1 57. 192 TRIAL OF RABIRIUS CH. this occasion, Metellus in command on the Janiculum strikes the flag and all further proceedings are dropped. The most interesting and crucial question to decide, and the one most significant for the appreciation of Cicero's extant speech, is whether that speech was delivered before or after the intervention of Metellus and the incident of the lowering of the flag. The supporters of the second of the three hypotheses are, of course, obliged to say ' after ' ; the supporters of the first and third would unite in saying ' before ', and I believe that so far they would be right. The provoking thing about these hypotheses is, that of no one of them can it be said that it is absolutely proved to be wrong. Against each one of them in turn serious objections can be brought, but every objection may be parried by a more or less admissible though somewhat forced inter- pretation of the passages involved. It might, for instance, be most simple and obvious to take the words perduellionis judicium a me sublatum to imply that all trial for perduellio was already past and over, when Cicero spoke these words ; still the reproach of the tribune, which Cicero accepts as a compliment, would be justified if, in whatever manner, Cicero had frustrated the intention of Labienus and his ally to carry through the whole procedure of the Horatian for- mula, culminating in case of a verdict of guilty with the actual crucifixion of Rabirius. 1 Again, when Cicero seven years later says, 2 ' ego in Rabirio perduellionis reo XL annis ante me consulem interpositam senatus auctoritatem sustinui contra invidiam atque defendi *, it would be most satisfactory to refer the phrase perduellionis reo to the 1 It is to the honour of Schulthess (Der Prozess des C. Rabirius, pp. 1 8, 47, so) that he frankly accepts this interpretation of Cicero's words, though his own theory leads him to believe that when they were spoken all proceedings for perduellio were, as a matter of fact, over and done with. * Cicero, in Pisonem, 2. 4. XI OCCASION OF CICERO S SPEECH 193 vigorous defence of the Senate's right in the published speech, but it is possible to refer it to Cicero's whole proceedings in opposition to Caesar and Labienus from the moment when the charge was first mooted, through the great scene on the Campus, down to the last flickering of the revived accusation, if revived accusation there were, in the Forum. Then again Cicero's denunciation of the cross, the flagellum, and the camifex would be much more effective if these horrors had actually been exhibited, as he seems to imply, by the pro- secutors ; but it is not impossible that he refers merely to what would have been done, could they have carried out their original proposal. On the other side, from the words ' hanc tu, Labiene, imaginem quam habes ' and ' nunquam istam imaginem in rostra atque in concionem attulisses ', it is natural to conclude with Huschke that the portrait of Saturninus was actually displayed at the moment and that Cicero pointed to it as he spoke, in which case the speech must have been delivered at a concio and in the Forum. But the conclusion is not rigidly necessary ; Cicero may be merely referring to what had occurred on a previous occasion. The absence of any reference in the speech to Metellus' action, if it had already taken place, in which case it would certainly have had a prominent place in Labienus' attack, is very strange in itself ; but it may possibly be accounted for as due to Cicero's unwillingness to dwell on what the people might feel as a frustration of their right to vote. 1 On the other hand, if (as is postulated in the third hypothesis) the duumviral trial had been already frustrated, but without the intervention of Metellus, this would imply an almost incredible clumsiness of expression on the part of Dio 1 Huschke, on the other hand (Multa und Sacramenlum, p. 525), thinks that the ' energische That ' of Metellus carried the favour of the people. 1110 O 194 TRIAL OF RABIRIUS CH. Cassius, 1 in whose narrative we must then suppose a huge gap from the moment of the appeal from the duumvirs, to the moment of the trial of a second appeal from the tribune on a second charge concocted after the first had failed. The counting up of the several items of the multae irrogatio in the first part of the speech would be more natural if the said multae irrogatio were actually being tried before the people at the moment, but there would be no great difficulty in supposing that the reference is to a fine by the tribunes, with its motives set forth, previous to the proceed- ings before the duumvirs, like Rutilius' consecratio 2 of the goods of the censor whom he was on the point of summoning for perduellio. Finally the statement of Dio that after the action of Metellus the prosecutor might have renewed proceedings on another day, but declined to do so, is best explained in the natural sense that the striking of the flag was the closing scene of the whole drama ; but it might possibly be explained, as the supporters of hypothesis number two are bound to explain it, in the sense that there was no more of the duumviral proceedings for perduellio. These arguments on either side do not seem to help us much to a conclusion. But apart from the minutiae which we have been discussing there are one or two broader con- siderations. On the one hand, is it probable that Cicero should have allowed the supreme moment of the sensational duumviral trial to pass over without a word ? That he should have left the r6le of protagonist to the praetor, and have reserved his great consular speech for the less interesting 1 Dio Cassius, XXXVII. 27. 3 : ' The duumvirTcondemned him . . . and Rabirius appealed, but he would nevertheless have been con- demned, had not Metellus,' &c. I should agree with Schulthess (Der Prozess des C. Rabirius, p. 56) in his criticism of Wirz, that it is almost necessary to take the two parts of the last sentence as continuous. * Above, p. 186. jXI OCCASION OF CICERO'S SPEECH 195 and less striking occasion of a commonplace accusation for a fine introduced as an afterthought by the enemy ? But, on the other hand, if the speech, as we have it, were a part of the duumviral trial for perduellio, how are we to account for the entire absence of any reference to the duumvirs as presid- ing or even as present on the occasion ? Not they, but the tribune appears in the character of accuser, and the pro- ceedings are so completely under his control that he has confined Cicero within a half-hour's limit for his speech. How could the tribune introduce himself in this overwhelming manner into a judicial procedure in which he had, so far as form went, no locus standi, and whose machinery was borrowed from a time prior to the institution of the tribunate? Zumpt x attempts to parry this argument by the conjecture that the speech was altered when Cicero published it in 60 B.C., and that as originally delivered it contained references to Caesar and his brother duumvir, which Cicero afterwards found it prudent to omit. It is certainly noticeable that the very same letter 2 which announces the publication in the year 60 B.C. of his ' Consular Orations ' records Cicero's hopes of being able to influence Caesar in a friendly way and tq bring him round to a sound policy. I am inclined to believe that Zumpt is right totidem verbis, but I should by no means accept his conjecture as supplying an adequate solution of the difficulty. We may well suppose that the original speech was not so completely dumb about Caesar as it appears in the published form, but the omissions can only relate to some side hits which Cicero would hardly have failed to aim at him on such an occasion. It is a very different thing to assume that the whole speech was recast, 1 Zumpt, Criminalrecht, I. ii. 396. His argument meets with the approval of Wirz {Perduellionsprocess des C. Rabirius, p. 197, note 17). a Cicero, ad Atticum, II. 1. 02 196 TRIAL OF RABIRIUS CH. and the whole circumstances misrepresented, as they must have been if the speech were really addressed to the duum- virs. I cannot believe that with the facts fresh in the recollection of all men Cicero would have ventured on any such thing. Every line in the speech is stamped with the mark of an assembly in which the tribune was the prominent and controlling person. I will now venture to add one more to the numerous theories as to the order of events. In the first place I would renounce any attempt at precision regarding the preliminary proceedings vaguely described by Dio 1 as taking place, whether in the senate or elsewhere. It is, I think, generally assumed by modern scholars 2 that a plebiscitum was passed authorizing the proceeding by way of duumviri perduellionis. It seems to me, however, that there is a difficulty here, because Cicero's words, 3 ' hie popularis a duumviris injussu vestro . . . civem Romanum capitis condemnari coegit ', would have little sting if the people had expressly authorized their appointment. On the other hand, we know from Dio that Caesar had played a part in preliminary controversies, and that Labienus too had his share in them is clear from Cicero's reproach that it was he who compelled the duumvirs to condemn Rabirius. The evidence before us is insufficient to enable us to say what acts on the part of Caesar or of Labienus preceded the nomination of the duumvirs by the praetor. I have hinted my doubts in an earlier chapter as to Dio's statement that this method of appointment was unprecedented. 4 Anyhow we know that the duumvirs were 1 Dio Cassius, XXXVII. 27. 2 Except Schneider (Der Prozess des C. Rabirius, p. 9 seq.). * Cicero, pro Rabirio, 4. 12. See above, p. 139 and p. 153. * Oi Kara ra irdrpia. I do not think that we can follow Schneider (loc. cit., p. 9) in taking these words to mean merely that this method XI QUESTION OF PREVIOUS ARREST 197 actually appointed. From this point it will be convenient that I should drop the argumentative style, and simply tell the story as it presents itself to my imagination — a story in which, though the framework is of necessity conjectural, every known fact will, as I hope, be found in its proper place. The arrangements for the trial for perduettio on the strict model of that of Horatius were now in full progress. The fatal words perduellionem tibi judico had been uttered by Caesar, and the cross, the flagellum, and the carnifex were displayed on the Campus Martius for the actual execution of the culprit. At this point Cicero intervened. The possibility of a capital sentence being executed depends on the circumstance whether or not the criminal is actually arrested beforehand. The power on the part of the judge to say ' /, lictor, colliga manus ' is the necessary condition of the perduellionis judicium in the sense in which Caesar and Labienus proposed to exercise it. If the accused be at large, it is always open to him to evade any sentence by withdrawing into exile, so that it matters comparatively little what the sentence may be : in any case he saves the remnant of his life, but deprives himself, as Cicero says on this occasion, of his right to be buried with his fathers. Cicero then, as I believe, whether by virtue of his major potestas as consul over the duumvirs as lesser magistrates of the Roman people, or else by the instrumentality of a tribune, simply prevents or terminates the arrest of Rabirius. 1 was an anomaly in a state which habitually elected its judicial magistrates. My own method of dealing with Dio's statement would be more drastic. See above, p. 153. 1 The whole discussion is simplified, if the vital importance of the preliminary arrest is recognized (see above, p. 1 60, note 5 ) , and if it be remembered that, where there is no such arrest, the only practical question is, whether the punishment ordained is such as will induce the condemned man to evade it by exile. Most of the commentators seem to have forgotten that Cicero (fro Caecina, 34. 100) expressly 10,8 TRIAL OF RABIEIUS CH. From that moment all the precedents of Horatius and all the gruesome implements of punishment have lost their use, and serve only as signs and tokens of the cruel intentions of the prosecutors ; exile is now the worst that can happen to Rabirius. Thus is the perduettionis judicium pef me sublatum. Meanwhile, parallel to the proceedings for perduettio, another attack was opened. The tribune Labienus had piled up a long and miscellaneous list of charges against Rabirius ; official abuses,, secret assassination, disgraceful offences against morals are heaped together as counts in his multae irrogatio. For these misdemeanours he announced the infliction of a fine so heavy that it could not be carried through without the consent of the people. There is no reason to suppose that the death of Saturninus was included among the charges in the multae irrogatio : x Cicero certainly never says that it was, 2 but undoubtedly it was included in says that ' in no law of ours will it be found that any crime has ever been punished by exile '. Schulthess (Der Progess des C. Rabirius, p. 71, note 3) does not forget ; but he follows the unfortunate lead of Mommsen (Staatsrecht, III. 361,. note 1) in setting aside the great- passage from the pro Caecina as mere special pleading, ' eine fur die Corona bestimmte Advokatendiatribe.' Mommsen, as I shall try to show in Chapter XV (below, Vol. II, p. 25), is rather inconsistent than erroneous, but (as usual) it is his least happy presentment which is adopted by his disciple. 1 It is certain that a ' capital ' and a ' pecuniary ' penalty for any offence could not be included in the same action (Cicero, de Domo, 17. 45), and that probably because the one would have to come before a centuriate, the other before a tribal assembly (Mommsen, Strafrecht, p. 167, note 1). I know no reason why the two penalties should not be claimed simultaneously, as the case of the Claudius defeated at Drepana shows that they could be successively (see above, p. 155) for the same offence in different courts. Still there appears to be no example of such a proceeding, and it is not necessary to assume it here. * Indeed he rather implies the contrary when he remarks as to the other charges, that half an hour was more than enough for his task XI THE MULTAE IRROGATIO OF LABIENUS 199 the accusalio, that is to say in the harangues delivered by the tribune, of which, as Cicero says, it formed the second part. When once the tribune was on his legs no power in Rome could prevent his speaking about whatever he chose. What- ever might be legally before the court, this was the charge in which every one was interested. Probably it was no part of Labienus' intention ever to follow out his own line of proceeding to its end, but meanwhile it was very convenient to him to have a series of condones on three several days 1 at which he could introduce any topic at will, and have every opportunity of working on the feelings of the people who were to judge in the impending capital trial. The picture of the murdered tribune could be displayed on the Rostra from which he had once spoken. The ' probabile ex vita \ 2 without which the brief of no Roman advocate was complete, would be supplied against Rabirius by the various counts in the multae irrogatio. Above all, from Labienus' point of view it was an important consideration that in all these condones he would be the pre-eminent person with consul and nobles pleading before him, and would be able to pose as the defender of the majesty of the people and the sanctity of the tribune. If Caesar as duumvir could play in this popular r6le — and in view of the coming elections to the pontificate and the praetorship it was doubtless a desirable opportunity — should not Labienus be allowed to employ his tribunate, in what was now its main use, as a means for self-advertisement ? 3 as advocate. When he comes to the death of Saturninus he claims to speak not as advocate but as consul. 1 Above, p. 154. 2 Wirz, Perduettionsprocess des C. Rabirius, p. 194. 3 Compare pro Plancio, 5. 13. Cicero tells Laterensis that he had put himself at a disadvantage as regards future office by not serving the tribunate. 200 TRIAL OF RABIRIUS CH. At such condones the tribune was undoubted master; and though he could hardly with decency forbid Cicero and Hortensius from speaking, he was quite within his right in playing the bully by announcing that he did not want long- winded orations and would confine the consul to half an hour. On the other hand, the advocates for Rabirius could not allow the debate to be all on one side. We hear nothing of any speeches by Caesar or of any preliminary discussion on the Campus before the final day. It is possible that the duum- viral procedure did not afford facilities for these. At any rate Cicero and Hortensius lost nothing by appearing at the tribune's bar, because any part they might take in these discussions would not exhaust their right to speak before the duumviral comitia centuriata, should it hereafter seem desirable so to do. Cicero seems to indicate in his speech that he will have another opportunity 1 for developing this part of his case at greater length. I believe then that it was at one of the three tribunician meetings which were to introduce the multae irrogatio that Cicero spoke, and that he spoke in the Forum. Rabirius was still, as the traditional heading of the speech entitles him, and as Cicero describes him in his speech against Piso, 2 perduellionis reus. The great trial before the duumvirs and the centuries was still in the future, probably in the near future. Its importance overshadowed all minor issues ; the People had come together to hear the consul speak of Saturninus and they were not disappointed. The main topic of Cicero's speech is the 1 This appears the most natural meaning of the words ' tamen a me haec in hoc tarn exiguo meo tempore non audies ; liberum tempus nobis dabitur ad istam disceptationem ' (Cicero, pro Rabirio, 5. 17); though I should agree with Schulthess (Der Prozess des C. Rabirius, p. 32), that it would be possible to explain them as merely a threat of political attacks on Labienus in the future. a Cicero, in Pisonem, 2. 4. See above, p. 192. XI THE STRIKING OF THE FLAG 201 rebellion of Saturninus and the odious methods by which it had been attempted to avenge his death. Though the multae irrogatio of the tribune is the business presently on hand, Cicero brushes it aside as merely subsidiary to the great attack, and it is Labienus' part in that attack which gives him the best opportunity for scorn and invective. If we consider the speech from this point of view, as a pre- liminary to the main issue on the Campus Martius, it appears a very effective piece of rhetoric. If at the moment when Cicero delivered the extant speech he intended to follow it up with a second and more elaborate one, the intention was certainly never carried into effect, as we know from the list of his ' Consular Orations ', which Cicero sent to Atticus three years later, 1 that there was only one speech pro Rabirio. Before Cicero had opened his lips on the day of trial, the meeting of the comitia centuriata was broken up by the agency of Metellus Celer and his flag. The demo- crats must have acquiesced in the somewhat lame conclusion to their demonstration, for it is certain that the multae irrogatio was not pressed and that Rabirius remained unmolested. But, it may be asked, why did the prosecutors accept as final so clumsy a legal fiction as the pretence that the Gauls or Etruscans were at the gates and had stormed the Jani- culum ? If we are to guess, my guess would be that Dio's account of the business, though doubtless correct enough as to the bare facts, conveys a wrong impression by the too serious tone in which the whole incident is treated by him. 2 1 Cicero, ad Atticum, II. i, 3. 1 Modern writers have generally adopted Dio's attitude. Lallier {Revue Historique, 1880, p. 276) and Schulthess, indeed, hit the point when they speak of the whole proceedings as a comedy, but in their discussion of the poli tical question both of them treat the trial as some- thing very grave and important, a great and successful stroke of policy on Caesar's part. 202 TRIAL OF RABIRIUS CH. I cannot but think that those who saw the events with their own eyes must have recognized that the expedients extracted by both parties from musty annals had something ludicrous about them, and were considered part of a solemn farce rather than practical politics. I believe then that the case was really decided by Cicero's speech 1 and by the odium which he succeeded in exciting against the ghastly anti- quarianism of the prosecutors. Caesar had accomplished his main object in flaunting his protest and gaining notoriety for himself and his cause. He had, however, made some mistakes. The display which he had intended as a sensa- tional object-lesson to show what might befall the man who should dare to touch a hair of the tribune's sacred head, had merely enabled Cicero to turn the tables on him by his equally sensational but very damaging invective against Caesar's methods. Caesar must have been thankful that Labienus had acted as lightning-conductor and had diverted the brunt of the storm on to himself. Again, the unseemly haste with which Caesar had uttered his sentence of condemnation had excited, as Suetonius 2 tells us, a prejudice in favour of the accused, so that there was every chance of a verdict of acquittal 3 which would have been an unpleasant rebuff to the democrats. It remained for Caesar to escape as best he could from the somewhat awkward position into which he had drifted. The ponderous device of Celer, a worthy but very stupid 1 This effect was anticipated in his prayer that Heaven would grant ' hodiernum diem et ad hujus salutem conservandam et ad rempublicam constituendam illuxisse ' ; and I believe that the hope, which Cicero entertained that this would be so, is a sufficient justi- fication of the expression ' hodiernus dies '. See above, p. 1 90, note 7. 2 Suetonius, Julius, 12. ■ As in the case of Opimius' trial for killing Caius Gracchus and his associates. See below, p. 241. XI CAESAR AND METELLUS 203 many 1 must have been a perfect godsend to Caesar as enabling him to withdraw with dignity, leaving to the optimates the responsibility of having cheated the people of their right of voting. I think that there can be no doubt that Caesar, as president of the assembly, made only a perfunctory protest, 2 and that he really assisted in the work of breaking up the comitia. Probably there was a secret understanding between him and Metellus, and Caesar may well have stipulated that Cicero should not speak a second time. We know that the proceedings were not as a matter of fact renewed in any form, and there is every reason to suppose that this was the result of a compromise by which Caesar undertook before- hand that they should be dropped. On the other hand it is not unnatural that the leaders of the senatorial party should have been willing to meet Caesar half-way and to refrain from pressing the matter to the bitter end in the hope of a complete triumph. The popular vote was in any case too whimsical and unsteady to be trusted, 3 and the continuance of the agitation might have led to painful surprises. Both parties then were sick of the business and acquiesced in a termination which allowed the champions on either side 4 1 Cicero has sketched in his portrait for us in two rapid strokes : ' Quid quaeris ? Est consul QCkorrarpts et, ut semper judicavi, natura bonus' (ad Atticum, II. 1.4), and 'Metellus non homo, sed litus et aer et solitudo mera ' (ad Atticum, I. 18. 1). Metellus has perhaps more effectively than any person in history succeeded in ' writing himself down an ass ' in the short letter to Cicero which is his sole contribution to literature (ad Familiares, V. 1 ). * Just as he did, when praetor a year later, in presence of the sentence of suspension passed against him by the Senate (Suetonius, Julius, 16). On both occasions Caesar had started a hare which he did not really wish to run down. * Cicero, pro Murena, 17. 35 ' Saepe etiam sine ulla aperta causa fit aliud atque existimaris, ut nonnunquam ita factum esse etiam populus admiretur quasi vero non ipse fecerit.' * Dio seems to have adopted the assumption of the democrats, while Suetonius' version of the story (see p. 202) reflects that of the optimates. 204 TRIAL OF RABIRIUS CH. XI to claim that they would have won if they had been allowed to play the game out. The result was on the whole not unfavourable for the constitutional party. The attack had ended in nothing : the candle lighted by Caesar had guttered out. The attempt to revive trials before the people had proved futile, and the practice was thereby discredited. No such trial on a capital charge was ever again attempted, and we hear of only one for a pecuniary penalty. This was the attempt of Clodius as curule aedile in 56 B.C. to arraign Milo on a muttae irrogatio. This too led to nothing except a certain amount of rioting and a great deal of abusive language. 1 Such was the ignominious conclusion of the sovereign jurisdiction of the Roman People, as laid down by the founders of the Republic. 1 Cicero, ad Quintum Fratrem, II. 3. 2. CHAPTER XII THE RUDIMENTS OF TRIAL BY JURY The Roman theory of public and social life drew a sharp distinction between the responsibility of deciding and the function of advising. Whoever is called upon to act in difficult or doubtful circumstances is entitled, nay he is morally bound, first to take the advice of properly qualified persons. The king consults his senate, the father of the family before he pronounces sentence on wife or child listens to the counsel of family friends, 1 even the general at the head of his army rewards a faithful ally with the gift of citizenship only ' de consilii sententia \ 2 So too it is always open to the magistrate on the bench to take the advice of skilled juris- consults before he lays down the law. 3 In all these cases the advisers pronounce their opinions severally, and in most cases the practical result will doubtless be that the voice of the majority will carry most weight with the person who has asked their assistance. But the last word lies not with the majority but with him who is consulting them, and the responsibility for the decision is his. The subsequent modifications and developments of the original principle will form the subject of another chapter.* 1 Valerius Maximus (II. 9. 2) tells us that the censors of 307 B.C. ' L. Antonium senatu moverunt quod, quam virginem in matrimo- nium duxerat, repudiasset nullo amicorum in consilium adhibito.' ' Cicero, pro Balbo, 8. 19. 3 See an instance in Cicero, ad Familiares, VIII. 8. 3. The praetor Laterensis, ' leges ignorans,' ' cum M. Lollio transegit,' and then corrects his own faulty record. ' See below, Vol. II, pp. 45-47 and p. 50. 206 RUDIMENTS OF A JURY CH. Meanwhile we must keep it in mind that all this does not apply to the judex under the legis actio or under the formulary system. His function is quite apart from that of a counsellor. As had been already seen, 1 he is there not to advise or to support the magistrate in the responsibility of coming to a decision, but to give a decision on oath under his own responsibility respecting a particular question which the magistrate has referred to him for an answer. How com- pletely the responsibility is that of the judex may be seen from the circumstance that in bearing its weight he in turn is entitled to ask for the advice and assistance of assessors. Cicero's speech pro Quinctio is addressed to the judex C. Aquilius and the advisers whom he has invited ' in consilium '. When Verres wished to decide a criminal case without being hampered by the presence of certain respect- able Roman citizens resident in Syracuse, whose opinion he could hardly avoid asking in the particular circumstances, he ordered one of them, a Roman knight, Marcus Petilius, to retire and proceed forthwith in the hearing of a private suit which had been referred to him, and then packed off the rest to act, as they had been previously asked to do by Petilius, as his counsellors in this trial. 2 The subject of this chapter is not the functions of such counsellors, but the cases in which a bench of jurors take the place of the unus judex to whom the praetor more usually puts his question. In such cases the actual and effective responsibility for decision rests not with a single person but with a plurality, in which the majority of votes will carry a positive and final sentence. Here we have for the first time what may be properly called ' trial by jury ' as dis- tinguished from ' trial by a juror '. 1 Above, pp. 6 1 and 74. a Cicero, in V err em, II. 29. 71. XII JUDICIA LEGITIMA 207 It will be most convenient to take as a starting-point a curious distinction which leads Gaius to divide judicia into two classes, those which ' imperio continentur ' 1 and those which are ' legitima '. It is unnecessary to detail the various consequences which flow from this distinction. We have here to do only with the definition and the boundary line between the two categories. The word legitimum is here used in a special and technical sense, which, as Gaius 2 expressly informs us, is not the obvious and natural sense, namely ex lege. The distinguishing marks of the legitimum judicium are that the parties are all citizens, that the suit takes place in Rome and that it is tried by a single judex. There can be little doubt that the legitima judicia, so denned, constitute the oldest class and that they have survived from antiquity. Mommsen 3 conjectures with much probability that the three defining characteristics mentioned above impressed the name of legitimum on a suit because these three were prescribed for ordinary procedure in the Law of the Twelve Tables, which the Romans seem to have had in mind in certain other phrases, such as heres legitimus and tutor legitimus. We may safely conclude then that reference to a single judex is the rule in the earlier procedure. This conclusion is confirmed by a notice respecting ancient times 1 This phrase, according to Gains (Inst. IV. 105), has reference primarily to the length of time during which the action is kept alive : ' ideo autem imperio contineri judicia dicuntur, quia tamdiu valent quamdiu is qui ea praecepit imperium habebit.' * Gaius, Inst. IV. 109 ' Ceterum potest ex lege quidem esse judicium, sed legitimum non esse ; et contra ex lege non esse, sed legitimum esse'. While following Wlassak (Processgesetze, Vol. I, p. 28) in his conclusions about the unus judex, I cannot in the least agree with him that ' it would be a gross misunderstanding if we tried to extract from the passage an opposition between ex lege and legitimum ' ; the opposition is there in the very words of our authority, and Wlassak's attempts to. escape from it are quite unsuccessful. 3 ' Judicium legitimum,' in Juristische Schriften, Vol. Ill, p. 364. 208 RUDIMENTS OF A JURY CH. from Gaius * — ' ut autem die xxx. judex daretur per legem Pinariam factum est, ante earn autem legem statim dabatur judex ' ; and in the same section we have — ' ut ad judicem veniant denuntiabant . . . deinde cum ad judicem vene- rant,' etc. In what manner of cases, we next ask, are the conditions of a legitimum judicium departed from, and a jury substituted for a single juror ? We may leave on one side as not forming part of ordinary procedure two instances from the Law of the Twelve Tables (that ' de finibus regundis ' 2 and that respecting ' vindiciae falsae ' 8 ), in which certain controversies as to details may be referred to three arbitri. Apart from these, the jury of early times is that of the centumviri or that of the decemviri litibus judicandis, or that of the recuperatores* The jury system afterwards attained so important a place in the administration of the Roman criminal law, that I can hardly avoid entering into some discussion of its first appearances. It is certain that in some cases during the last two cen- turies of the Republic, after issue had been joined on a legal wager, the question whether the sacramentum was justum or injustum was referred not to a single judex, but to a body. 1 Gaius, Inst. IV. 15. See above, p. 63. 8 Bruns, Pontes', p. 27, with reference to Cicero, de Legibus, I. 21. 55. The arbitri were probably at first ambulatory commissioners sent out by the praetor to investigate and decide matters on the spot. See Girard, Org. Jud., p. 82, n. 2. * Festus, s.v. vindiciae : ' Si vindiciam falsam tulit, si velit is praetor arbitros tres dato ; eorum arbitrio, rei et fructus duplione damnum decidito.' There is a parallel passage in the lex Ursonensis, chap. LXI : 'Si quis in eo vim faciet (=vindicabit), ast (=si) ejus vincitur, dupli damnas esto,' &c. When the vindex who has rescued a debtor and denied his liability, fails to maintain this contention at the trial, he must pay double the amount of the loss threatened to the creditor ; this amount is what Festus says must be assessed by arbiters. XII DECEMVIRI AND CENTUMVIRI 20$ Decemvirs are mentioned as judges in a case in which Cicero l during the lifetime of Sulla defended the liberty of a woman of Arretium. Centumviri appear frequently in Cicero's Dialogue de Oratore (the dramatic date of which is 91 b. c.) as trying cases of easements (such as stitticidium), 2 guardian- ship, 3 inheritance, 4 and status, for instance 5 whether a certain ' applicant ' foreigner was or was not a client, and whether the right of the Claudii Marcelli to inherit the goods of a son of their freedman was or was not overridden by the gentile claim of their patrician namesakes. The decemviri litibus judicandis were by Augustus 6 set to preside over the centumviral courts and formed part of the group of lesser magistrates known as the vigintivirate. Even when they constituted a court of their own, they are reckoned by Cicero 7 as minor magistrates of the Roman People, and this ascription is confirmed when the office appears among those recounted on the gravestone of Scipio Hispanus. 8 This seems the unique case 9 of a body of magistrates being called upon to find a verdict for their superior. It is quite uncertain whether they were, as Mommsen 10 thinks, identical with the decemviri of the Horatian Law of 449 B. c., 11 or indeed at what date they came into existence. The same may be said of the origin of the centumviri : the facts that the legis actio sacramenti survived 1 See Cicero, pro Caecina, 33. 97. ' Cicero, de Oratore, I. 38. 173. * Cicero, ibid. ' Cicero, ibid., and pro Caecina, 18. 53. 5 See above, p. 77. ' Suetonius, Augustus, 36. ' Cicero, de Legibus, III. 3. 6. 8 Dessau, Inscriptiones Latinae, 6. He was praetor in 139 B.C. 8 The supposed exception of the triumviri capitales has been dealt with above, p. S3, note 3. 10 Strafrecht, p. 581, note 5. " Livy, III. 55. 7. Wlassak answers the question strongly in the negative (Processgesetze, Vol. I, p. 147). I do not think that there is sufficient evidence to settle the controversy. 1110 p 210 RUDIMENTS OF A JURY CH. for them alone under the principate, and that the symbol of their court was the spear, the sign of primitive ownership, 1 seem to point to a respectable antiquity : on the other hand the considerations adduced above 2 seem to place the centumviri after the legislation of the Twelve Tables, and their number one hundred and five and their selection three from each tribe 3 postulate, for this arrangement at least, a date after the completion of the list of thirty-five tribes in the year 241 b. c. The researches of Wlassak* have made it clear that in most of the matters named in the de Oratore 5 as coming through a legis actio under the decision of the centumviri, we have in other passages of Cicero indications of similar cases tried under a formula by the unus judex. This seems to point to the conclusion that in the latter days of the Republic alternative methods of proceeding were open in such cases. At this period the alternative of centumviri or unus judex comes to be practically equivalent to the alter- native of legis actio and written formula. We do not know which of the parties had the last word in choosing the method, or whether, as seems most probable, the praetor decided between the two procedures. 6 The important point for our present purpose is to note that, long before the employment of jurors for criminal 1 See Gaius, Inst. IV. 16 ; Greenidge, Proc, p. 42. ' Above, p. 207. * Festus, s.v. centumviralia. Bruns, Pontes' 1 , App. p. 5. ' Wlassak, Processgesetze, Vol. I, p. 112. Wlassak's references for alternatives in the several cases are for ' stillicidia ', Orator, 21. 72 ; for inheritance, in Verrem, I. 45. 115 ; for ownership of land, in Verrem, II. 12. 31. This last is a burlesque formula (see above, p. 68), but doubtless a parody on a real one. 6 See above, p. 209. 1 As the provincial magistrate certainly did in the analogous question whether a case should be sent to a judex or recuperatores : Cicero, in Verrem, III. 58. 135 (Mommsen, Strafrecht, p. 178, note 5). XIJ LEGAL SUITS OF ALIENS 211, trials the Romans in their civil procedure were familiar with the practice of referring some disputed question to the verdict of a jury deciding by a majority of votes, Of much greater interest, from the point of view of the criminal law, is the third species of jury, the ' recuperatorium judicium '. Some method of determining controversies between members of friendly states is a natural and almost necessary condition of commercial intercourse on any but the most meagre scale. The earliest and simplest device seems to have been that the alien, who has no standing as such in the law courts, should sue or be sued through a citizen, his hospes or patronus, who acts as his guarantor and representative in all his dealings. Such a necessity might, however, be avoided by the foreigner, as a consequence of special treaty. Aristotle speaks 1 of such privileges as being atrd , that is to say 'provided for by virtue of a contract between states ' ; and we have in the record of actual treaties some evidence to show how this might be accomplished. In the First Carthaginian treaty cited by Polybius 2 no bargain between Carthaginians and Romans trafficking in Africa or Sardinia was to be valid unless it were contracted in the presence of a public officer ; and such agreements were guaranteed by the government of the country. Sometimes,, again, by the special privilege which the Romans called commercium, each of the contracting states allows to the favoured foreigner the same power of purchase and sale and the same standing in the law courts as its own citizens enjoy. 3 This was accorded by the Second Treaty 1 Aristotle, Politics, III. i. 4, where he further defines the position — Store iea\ bUjjv vrrixtiv Km 6iKa{fv 6 Sijfior. An instance in point would be the authorization by the People which the senate obtained in the case of the Campanians (Livy, XXVI. 33. 10). Mommsen has another explanation (see above, p. 1 60, note 2), taking Polybius to refer not to the appointment of a commission, but to the trial of an individual case on appeal to the People. I do not believe that the senate has anything to do with appeal cases. 240 SPECIAL COMMISSIONS CH. in so long as only ordinary criminals were involved. The attempt to apply the procedure to political offenders led the Romans to protest and to quash the precedents. They did this by the law of C. Gracchus ne de capita civium iniussu populi judicaretur. This law appears to have been declara- tory and retrospective ; for Popillius, the consul who had acted against the Gracchans in 132 b. c, is said to have been the person aimed at, and he was in fact condemned and went into exile. 1 The law must then have clearly prohibited such judicial proceedings as those in which Popillius had engaged : and as a matter of fact none such seem to have been attempted thenceforth except by express decree of the People. 4. Cicero 3 acknowledges the obligation of Caius Grac- chus's law, and claims that it will not be traversed by the execution of death or of perpetual imprisonment on the Catilinarians. This seems to indicate a clear distinction between the action of Cicero and that of Popillius, against which the law of Caius Gracchus was directed. In what did the distinction consist ? Cicero himself in the next sentence supplies the answer. His action was not a judicial execution of citizens, but an act of war against enemies. 3 Mommsen, in a passage to be quoted below,* has clearly explained that the perduellis has by his own act placed himself in the position of a foreign enemy, and so has ceased to be a citizen. The senate fell back upon the doctrine 1 See Plutarch, Caius Gracchus, 4. 2, and Cicero, de Domo, 31. 82, Brutus, 34. 128. 2 Cicero, in Catilinam, IV. 5. 10. See below, p. 244. 3 Clodius's ' general law ' in 58 b.c. likewise related to those who had put ' citizens ' to death without trial. It was avowedly aimed at Cicero, but Cicero afterwards regretted that he had not ignored it or even praised it, as having nothing to do with the execution of the Catilinarians (ad Atticum, III. 15. 5). ' See below, p. 243, and also above, p. 104. XIII THE SENATUS CONSULTUM ULTIMUM 241 when they were deprived of the power of erecting a judicial tribunal. They simply passed a decree ' that the consuls were to see to it that the state took no harm. ', and the consuls thereupon put in exercise their full power against those who had constituted themselves hostes. The first person x against whom the new method was employed was Caius Gracchus himself, and Opimius, the consul who put him to death, was acquitted by the people when brought to trial for his act. Saturninus and the Catilinarians 2 fell in the same way ; and on similar grounds the consuls of 44 b. c, Antony and Dola- bella, put to death the false Marius and other rioters after Caesar's death without even waiting to be reminded of their duty by the senate. 3 In the concluding volume of the Staatsrecht 4 published as lately as 1888, Mommsen sums up the matter admirably : ' The quasi-dictatorship instituted by the senate is treated, 'broadly speaking, as a portion of constitutional order, ' introduced in the time of the Gracchi ; not only did the ' populares occasionally make use of it when they had the 1 Though Appian is indecisive, Plutarch's account (Tiberius Gracchus, 19. 3) makes it clear that the ultimum senatus consultum was not passed against Tiberius Gracchus in 133 b.c. The action of Nasica against Tiberius himself (as distinguished from that of Popillius against his adherents) was what Mommsen (Staatsrecht, III, p. 1241) calls ' unmittelbares Nothwehrsrecht', undertaken by one who constituted himself for the occasion a ' tumultuarius miles '. See also Mommsen, Rom. Forsch., Vol. II, p. 247. Livy's state- ment in the course of his story (III. 4. 9 and VI. 19. 3) that such decrees were issued two or three hundred years earlier (in 464 and 384 b.c.) cannot be considered historical. 2 That before executing the Catilinarians Cicero thought fit to take the advice of the senate, did not alter the legal situation. See my Life of Cicero, p. 155. 5 In this case the slaves were crucified, the citizens thrown from the Tarpeian rock. See Cicero, ad Atticum, XIV. 15. 2 ' de saxo! in crucem ! columnam tollere ! ' cf. Appian, Bettum Civile, III. 3. * Staatsrecht, III, p. 1243. 1110 R 242 SPECIAL COMMISSIONS CH. ' upper hand in the senate, 1 but Caesar and the Caesarians 2 * themselves treat it as valid in law, even where they blame the ' application of it. During the last century of the Republic ' the prerogative of the senate to exercise over the citizens the ' rights of war, in the old unlimited sense of the period of the ' kings, was never seriously disputed.' These doctrines require restating in order to complete the picture of the various forms in which the state takes action against offenders. Mommsen, in his later work, if he does not expressly retract the doctrine set forth in the Staatsrecht, at any rate expresses it with more hesitation and less clear- ness. The only point, however, in which he seems to me directly open to correction is that he expressly identifies 3 the action of Popillius in 132 b. c. with that of Opimius, Marius, and Cicero. Mommsen is debarred, by the theory which he has now adopted of the Bacchanalian trials of 186 b. c, from explaining Popillius's executions by the precedent of that year. On the contrary Popillius (who certainly did not allow provocatio) has to be made a precedent for Opimius and the rest. Popillius's action is made a fresh start for the future instead of being the final instance, as I believe it to be, of proceedings founded on precedents from the past. 4 Mommsen does not seem sufficiently to appreciate the difficulty that the law of Caius Gracchus is thus represented as so badly drawn that, though expressly directed against the proceedings of Popillius, it failed to 1 As in 83 B.C. against Sulla when ' timens Senatus . . . statuit ut curarent consules (Scipio et Norbanus) ne respublica acciperet detri- mentum ' ; (Exuperantius, Opusculum, ch. 7.) Exuperantius certainly drew from Sallust; see Preface to Bursian's edition, Zurich 1868. 2 Caesar, Bellum Civile, I. 7. 5 ; Sallust, Catilina, 29. 3. 3 Strafrecht, p. 258. 4 See Valerius Maximus, IV. 7. 1 ' cum senatus Rupilio et Laenati consulibus mandasset ut in eos qui cum Graccho consenserant more majorum animadverterent '. XIII THE SEMPRONIAN LAW 243 prohibit an exact repetition of those proceedings in future. It is surely much more natural to suppose that Caius Gracchus effectually barred one path, but that the Optimates found out another 1 — that what he forbade was a judicial trial, and that what they substituted was administrative action. The difference between these two views of the Sempronian law may be illustrated by an incidental reference to Caius Gracchus's measure in a discussion of perduellio later on in the Strafrecht. 2 The passage is worth quoting for its own sake : ' The more heinous species of this crime is essentially 'distinguished from all other crimes by the circumstance ' that in perduellio the perpetrator by the very act passes out ' of the citizen ranks into the category of public enemies. ' When from this premise the consequence is drawn that all ' judicial proceeding is therefore unnecessary, and that the ' rights of war may be put in force, this is a party doctrine 'and contravenes law. But even under the observance of ' the Sempronian law, which expressly prescribed the necessity "for the trial for treason, the effect of the verdict therein pro- ' nounced is not condemnatory, but declaratory, and when ' judgement is given the consequences of the crime are ante- ' dated to the moment of its commission. This is manifest ' from the circumstance that those consequences 2 which can 1 Plutarch, Caius Gracchus, 18. 1, speaks of the dictatorial power as being first used by Opimius. * Strafrecht, p. 590. On p. 592 Mommsen further explains that not only the testament of the perduellis, but all his dealings with his property from the moment of his crime are null and void. This doctrine is extended in later days to the person guilty of repetundae, who is treated as a state-debtor from the first. See Modestinus (circ. a.d. 250), Digest, XL VIII. 2. 20 " excepto majestatis et repetun- darum judicio quae etiam mortuis reis ', etc. . . . ' ex quo quis aliquod ex his causis crimen contraxit, nihil ex bonis suis alienare aut manumittere eum posse.' 244 SPECIAL COMMISSIONS CH. ' take effect after the death of the criminal are not here, as in ' all other crimes, barred by his death between the crime and * the trial.' If the Sempronian law really did, as Mommsen here assumes, ' expressly prescribe the necessity of a trial for treason,' x I cannot see how Cicero could, with any plausi- bility, have argued as he does — that Caius Caesar has not hesitated to pronounce on these men in spite of the law of Gracchus, ' because he knows well that the Sempronian law relates to Roman citizens, and that the man who is an enemy cannot by any possibility be a citizen,' 2 nor again can I imagine why Sallust the Caesarian should have refrained from introducing a refutation of this published statement, if it really admitted of refutation, into his master's speech. My conclusion then would be that the lex Sempronia of C. Gracchus caused notable changes both in law and practice. From that time forward we have in the first place no more criminal quaestiones resting only on a decree of the senate ; next those hereafter founded by decree of the People are with one exception (that of Cassius and the Vestal Virgins) real jury courts in which the magistrate is absolutely bound by the vote of a majority of his consilium ; and finally from this time forward the senate invents a new procedure, by which 1 I do not agree with Mommsen (Strafrecht, p. 633, note 2, and p. 258, note 1) that this law of Gracchus is to be identified with his law, ' ne quis judicio circumveniretur,' which was afterwards taken up into the legislation of Sulla (see Cicero, pro Cluentio, 54 seq.) ; but that identification, if accepted, surely raises another fatal objection to Mommsen's present interpretation. The crime which Cluentius was said to have committed was undoubtedly that of corrupting a judicium ; and a law directed against that particular crime must assume that a judicium of some sort has taken place. If, as Mommsen now claims, the point of Gracchus's law was to prevent a trial being dispensed with, its short title ought rather to have been ' ne quis sine judicio circumveniretur '. 1 Cicero, in Catilinam, IV. 5. 10. XIII CHANGES EFFECTED BY GRACCHUS 345 without any pretence at a judicial trial it points out to the consul, by the ultimum senatus consultum, that a state of civil war has begun, that there are ' enemies ' about, and that he is advised to deal with them accordingly. 1 The older proceedings of the senate were founded on a quasi- legislative power usurped by them, the more recent were a deduction from the legal doctrine of perduellio. 1 There is a striking analogy between this doctrine and that of the proclamation of ' Martial Law ' in England as explained by Professor Dicey, Law of the Constitution, Lecture VII, and by Mr. Justice Stephen, History of the Criminal Law, Vol. I, p. 214. END OF VOLUME I OXFORD: HORACE HART, M.A. PRINTER TO THE UNIVERSITY ; «i ; i i! II HI: I I I I'll li III