B

We have now to consider the courts before which cases of perduellio were brought, and the procedure employed. The earliest case recorded-that of Horatius-is said to have been tried by duumviri. We hear of such in one account of the condemnation of Manlius, and we know that Rabirius was brought before such a commission. The following points in connexion with them deserve mention.

(a) They were probably an extraordinary' commission, not a standing court of justice. Indeed it is inconceivable that they could have been the latter in the time of the kings.

(b) We do not know that the king was obliged to appoint them. I am inclined to think with Lange' that he was not; but that, if he for any reason shrank from exercising in any case the plenary jurisdiction which he had in virtue of his imperium, he could and did appoint such commissioners, from whose sentence there was an appeal to the people in their curies, while from that of the king himself there was none.

(c) What was the form which the appointment denoted by the word 'facio' took, is not certain. It may have been that of direct nomination by the king. But it is perhaps more probable that the king announced his intention of laying the case before commissioners, who were then by his permission chosen by the curies. This would agree with the story that Manlius was condemned through (per through the intervention or agency of) duumvirs duly elected (creati) to conduct the enquiry; and also with Cicero's objection (§ 12) to the nomination of the two who tried Rabirius as legally null.

4

=

(d) It is not certain why they were two in number. 1 Mommsen Röm Staatsrecht II p 598, Clark § 12.

2 Lange 1 383-5, 405, Mommsen II P 599.

3 I cannot make out exactly Lange's opinion. Madvig 1 p 303 seems to agree, and Zumpt 1 1 p 92 and Clark

§ 12 certainly do. In any case, as Mommsen II p 599 points out, the Republican magistrates lost the power of nomination unless specially empowered by a vote of the comitia.

Lange 1 383, Mommsen II p 601. Huschke p 200 notes a dualism (one of

Lange regards them as representatives of the Ramnes and Tities, which would agree well with his theory of the Alban origin of the Luceres. On this point I will not offer an opinion but I readily admit that they do not afford an instance of anticipation of the collegiate system of the Republic in the Regal period.

(e) It seems that jurisdiction was exercised, or at least sentence pronounced, by one only: and that they cast lots to determine on whom the duty should fall.

(ƒ) That the duumviral procedure lived on into the Republican age seems probable, though the traces of it are slight and scattered. Huschke points out that we very often hear of two tribunes accusing, and suggests that perhaps they acted as duumvirs. Lange" thinks that the quaestors in the case of Sp Cassius may have done so.

(g) In any case we know that the trial by duumvirs became obsolete' long before the time of Cicero. It is clear that this antiquated form of trial was revived simply as a convenient means of securing a triumph for the so-called 'popular' party by impugning through the condemnation of Rabirius the validity of the sctum ultimum. It is worth noting that we have distinct mention of duumviri perduellionis only in the three cases of Horatius Manlius and Rabirius.

reum ductus. Huschke remarks that the mention of one quaestor by Cic de republ II § 60 in the case of Sp Cassius, while Liv II 41 and Dionys VIII 77 speak of two, is probably to be explained in the same way. I cannot agree with Zumpt I 2 P 393 and Madvig II P 304 that the two who tried Rabirius were chosen by lot out of a large number. The lot was not likely to fall on the two Caesars.

6 Lange 1 384, Mommsen II p б01. 7 See Lange 1 385, II 525, III 241, Madvig 11 p 304.

C

But by far the greater number of the trials for perduellio with which we are acquainted occurred in the Republican period, and the procedure was of a very different kind from the above. At the risk of seeming tedious I venture to append a sketch of this procedure, without some account of which it is impossible to understand the case of Rabirius and indeed many others also. The matter of this chapter (C) is mainly taken from or written with reference to Zumpt's Criminalrecht, where the subject is dealt with more at length than in any of the other works I have been able to consult.

(a) It is well known that Roman jurisprudence from very early times distinguished the two stages of a civil action (1) the definition of the legal question involved, known as the proceeding in iure, being conducted before the magistrate, and (2) the decision of this question, known as the proceeding in iudicio, being conducted before the competent court, whether held by the magistrate himself or by some iudex to whom he referred the matter. But it seems that this principle of division was recognized in criminal1 actions also, and that they also began with in ius vocatio: thus Horatius was we are told raptus in ius ad regem. We shall presently see that the procedure of the criminal trials before the people (iudicia populi) falls into these divisions.

2

(b) The accusers must be magistrates: as a matter of fact they were almost always the quaestores in the period before the Twelve Tables; after that date generally tribuni plebis, now and then their subordinates the aediles. At the

1 Zumpt 1 2 pp 168—70.

2 See Zumpt 1 2 pp 242-3, Mommsen II p 290, Lange 1 385-9. The aediles seem to have been originally to the tribunes much what the quaestors were to the consuls, see also Mommsen 11 pp 466-7. Perhaps the aediles could only accuse in fine-processes, Huschke

p 198, Lange II 514, and the cases taken up by them seem to have been chiefly those that came under some definite statute. For the quaestors see note on Introd D (2). Mommsen II pp 302, 600, thinks they were only competent to deal with murder and other common non-political offences.

iudicium or trial proper a magistrate cum imperio had to preside: hence such were excluded from appearing as accusers. It should be observed that the popular jurisdiction as we find it under the Republic was no doubt developed out of the provocatio or right of appeal against the exercise of the magistrate's imperium or coercitio. Indeed the iudicia populi in cases of no political bearing*-what Zumpt calls the 'ordinary' procedure-always rested directly on this right of the citizen to appeal. The appeal lay to the people in their centuries. We shall see that in trials of political import (such as perduellio) the connexion with the right of appeal was less direct. With the later action of the comitia tributa and their competence to pass sentence in certain cases we have for the present nothing to do. But it is well to take notice of their action in the period before the Twelve Tables, because it was out of the struggles connected therewith that the later power of the tribunes as accusers was developed. It was constantly maintained by the patricians that the plebs and its magistrates' had no jurisdiction over patricians. But they were not able to make their contention good except so far as to require that before a tribune brought a patrician to the bar of the assembled plebs he must have obtained permission from the senate in the form of a sctum to that effect. Gradually it 7 The tribunes were practically magistratus populi Romani since 448 BC. Lange 1 827-8.

3 See Zumpt I 2 pp 175, 205, Mommsen II pp 289-90.

4 Huschke pp 147-156 points out that (so far as we know) the ordinary procedure always applied to both orders alike. He ingeniously traces the extraordinary procedure up to the compacts between the patricians and plebeians. These were at first practically two states, and the mutual jurisdiction really rests on deditio of the offender according to a sort of international law. See the demand in Livy III 53 § 5. For the compacts called leges sacratae, which protected the tribunes, see III 55 with Weissenborn's notes.

5 See below (e).

6 Zumpt 1 2 pp 245, 249-50, 268—9.

8

8 Zumpt I I pp 261, 266—79, and 2 P 275. Though I have thought it best to give this view in the text, I feel bound to add that the evidence adduced in its favour consists of dubious and sometimes forced interpretations of passages which supply no direct proof. That such a sctum should have been necessary is not a priori very probable; though it may have been customary, as in the case of legislation in the later times of the Republic. Doubtless there were now and then offenders whom even the senate desired to punish.

(2) the preliminary proceeding before the magistrate in case. of 'ordinary' or non-political trials, (3) the proceeding befor the magistrate and the hearings before the people down t the end of the third hearing, the procedure employed in th 'extraordinary' trials, those of political import. It is wit the details of these 'extraordinary' trials that we are co cerned here. Now the view of Zumpt is open to this obje tion. The three hearings referred to were conducted befo the whole body of citizens assembled in contio, and the citizens are also the ultimate judges in the case: besid witnesses are produced on all three occasions. This is ve unlike what we know of other proceedings in iure, and it perhaps safer in the grievous dearth of evidence to hold th the first appearance of the accused before the accusing mag trate is the true in iure proceeding in such cases. Then t first three hearings will count as parts of the proceeding

9 Mommsen II p 290, Lange II 514, Zumpt 1 2 pp 242-6. In any case some distinction of periods should be made. The full legislative coordination of centuries and tribes may be best dated from 287 BC (lex Hortensia, Lange II 439), and by that time the tribunes had al

ready become a regular instrumen senatorial government and the dis tion between patricians and pleb had ceased to have much practical portance.

10 Zumpt I 2 pp 169-70, 239, 249-50, 268-9.