the accused. Hereupon Rabirius appealed to the people. That this means the people in their centuries 13 is clear, for since the Valerian laws that assembly had held the appellate jurisdiction once exercised by the curies. But whether it was necessary after the duumviral sentence to go through the whole process of the four hearings, as in one of the 'extraordinary' tribunician trials, is so far as I know a question which there are no means of answering. Anyhow the assembly of the centuries met, and voting seems to have begun; for we are told that the rejection of the appeal was imminent when the praetor Metellus Celer ran and pulled down the red flag, after which the proceedings necessarily came to an end. 14 (f) Thus far we have met with no difficulty of importance. Here we are brought face to face with the problem on which so many scholars have of late exercised their wits. Formerly it was assumed without hesitation that the surviving speech of Cicero was delivered before the centuriate assembly on the occasion of the appeal. Since Niebuhr 15 this has been a disputed question, and the balance of expert opinion seems to incline in favour of the other view-that it was delivered at some stage of a fine-process, which was brought on after the capital process had miscarried. In this view I had better at once say that I concur. I proceed to consider the evidence on which my conclusion is based; first the external, then the internal. (i) External. I. Dion says that the hauling down of the flag saved Rabirius: Labienus might have brought him to trial again, but he did not do so. Here I believe him to speak of a renewal of the charge of perduellio; which was no doubt as he says permissible" by statute [legibus], 13 Huschke p 524. 14 See appendix I. 15 Zumpt I 2 note 97 and Rein p 497 adhere to the old view: Lange II 552, III 242, Huschke pp 515-28, Madvig H. C. II p 304, Mommsen Röm Staatsrecht II p 598, adopt Niebuhr's view with some modifications. 16 This is admitted by Zumpt I 2 pp 265, 396. See Huschke p 524. Thus 3 though forbidden by usage [moribus]. Still it remains true that he makes no mention of a multae irrogatio. Dion wrote in the latter part of the second century A D or the earlier part of the third. 2. Suetonius, when he says that the spite of Caesar served Rabirius better than anything else in his appeal to the people, is also thinking of the trial for perduellio. But his words surely imply either that the people acquitted Rabirius or that they were inclined to do so. Now Dion says the very contrary, that he would have been convicted before the people also. There is therefore ground for suspecting that neither of these writers understood clearly what he was writing about. The political bearing of the trial is clear in both accounts, but the details are slurred over by Suetonius, who only gives us enough information to throw some discredit upon Dion. Suetonius wrote in the earlier part of the second century AD. 3. Cicero writing to Atticus in 60 BC gives a list of 12 speeches which he was editing. They were to be a collection of consular speeches of political rather than forensic interest. Of these the fourth" is for Rabirius. But whether the surviving speech is that referred to cannot be determined except on the supposition that he delivered and edited no other. 4. Cic in Pisonem § 4 (delivered 55 BC) says ego in C Rabirio perduellionis reo XL annis ante me consulem interpositam senatus auctoritatem sustinui contra invidiam atque defendi. Now this description would apply very well to the present speech. But the words perduellionis reo do not prove that the speech,—even granting that it is referred to-is the one delivered before the assembly of centuries on the appeal from Valer Max VIII I absol § 4 says of the case of Appius (he means Publius) Claudius that he was preserved from condemnation by a storm, and the trial not renewed. But we know that he was as to when or where this or any other speech was delivered. It will be seen that the external evidence is on the face of it either neutral or unfavourable to the view in which I have declared my concurrence. But it will also be seen that it is not of such a nature as to overpower good internal evidence opposed to it, if such be forthcoming. And it will I think be admitted that Cicero's own references to his defence of Rabirius are not such as he would have made to a pleading in which he had been unsuccessful, as he seems to have been in speaking before the centuries. (ii) Internal. 20 I. In § 8 Cicero directly mentions multae irrogatio. The word eadem signifies that the same comprehensive bill of penalties recited all the minor charges just men 18 Huschke p 526. 19 ius omne retinendae maiestatis Rabiri causa continebatur: ergo in omni genere amplificationis exarsimus, with which compare § 72. Quintil VIII 4 deals with amplificatio. 20 Here I am in agreement with Huschke p 515. And in general I think the matter of §§ 6-8 suits far better with the theory of a fine-process than of one for perduellio. ing of party had probably succeeded in effecting. The 3. It is perhaps a stronger argument 25 tha 21 Given by Zumpt 1 2 note 97 (P 472). 22 See Huschke pp 516—7. 23 The view of Zumpt 1 24 See appendices E an 25 From Huschke p 51 enus to the speech of Cicero, suits better with proce- 26 Quintilian (quoted in my note) seems to think that it is. 27 Huschke pp 517, 527. 28 Huschke thinks that he allowed Hortensius and Cicero half an hour each. 29 Huschke pp 527-8. It is to be 80 |