assigned to all magistrates, while in § 27 this power is explained to be the basis of provocatio. Indeed this right of appeal must necessarily have rested on something that was technically and historically a iudicium, however insignificant and formal it might be. And the more firmly provocatio was established, the more formal the iudicium became. Not only would the iudicium of an accuser be necessarily a condemnation, but without condemnation there would be no appeal. Hence Cicero (pro Rab § 12) complains that the sentence of the duumvirs was practically no iudicium at all. [And it seems that the later Romans were led, by their regarding it as a mere formality themselves, to fancy that in the regal period acquittal by the duumvirs was even barred by statute, see note on passage (8) at head]. Hence it will be seen that even in a fine-process there is technically a iudicium to begin with, though practically of no effect in itself, but only rendered effectual by a final confirmatory vote of the tribes given on the question raised by the appeal. That we do not find the expression poenam capitalem irrogare in use is to be explained by the phrases employed in the first stage of capital and fine processes respectively-perduellionem tibi iudico, multam tibi dico,—where it is seen at once that iudicare was most strictly used in referring to the capital process before the centuries. That it could well be used in referring to the fine process before the tribes I have shewn above: the newer word irrogare seems to have been regularly confined to the second stage of the process before the tribes.

42

(0) I feel bound also to add that Zumpt strongly holds" the opinion that since the Twelve Tables perduellio bore the general sense of an offence worthy of death. This view, which was also that of Sigonius, he supports by a number of arguments of which the following are the most important. We see that in the cases of P Claudius Pulcher and Cn Fulvius the perduellio is of a very general nature; indeed in

40 See appendix K.

41 Zumpt I 2 pp 330-5.

42 Thus in the earlier case of Kaeso Quinctius Dionysius X 5 says eioáyovow

αὐτὸν ὑπὸ δίκην ἀδικήματος δημοσίου, θανάτου τιμησάμενοι τὴν δίκην. But in 48 he uses ἀδίκημα δημόσιον of the offence in a fine-process.

the latter case Livy makes it = capital offence.

44

43

These cases

it is true are of a military nature: but that of the two censors is not, nor can it be explained as perduellio on any other assumption than that given above. Again the use of iudicare as opposed to multam irrogare seems to group the capital trials together and to correspond to the expression in which the word perduellio occurs. I wish I felt more satisfied as to the completeness of the proof of this; as it is, I can only say that with one limitation-applying it only to the cases of a political nature dealt with by the 'extraordinary' process of the tribunes, which I believe Zumpt to mean—I think it probable. For the present I prefer to say with Lange that it is but natural we should hear only of politically important cases, and that cases of perduellio are especially of this nature, being generally accusations of magistrates. What with the fine-processes before the tribes and occasional special commissions, the capital processes before the centuries probably became exclusively political and very rare. Indeed in all the fifth century of the city (353-253 BC) we do not find a single case of the kind,—no doubt because the tribunes were on good terms with the nobility.

46

45

(p) In order to give some sort of historical completeness to this sketch of a large and difficult subject, it will be necessary to say a few words on the rise of the crimen maiestatis and the early legislation relating thereto. It had become more and more an established custom to apply the fineprocess before the tribes to cases that might have been treated as perduellio. Sooner or later some one was sure to find out a simpler way of dealing with all or some of these cases. the social and political fabric of the Republic gave way, the need became more pressing. At last the tribune L Appuleius

43 See note on passage (») quoted above.

44 This will agree with the separation of perduellio from other iudicia populi in Cic de legibus III § 36. Madvig II P 303 seems to take the same view. See also the words of Dion (p 29) ov γὰρ ἁπλῶς etc, where however ἁπλῶς

As

probably refers to the procedure before a quaestio perpetua.

45 Lange II 511-8, 522-4, Huschke pp 168, 177.

46 See generally Zumpt 11 1 pp 227— 36, Lange II 619, 551, III 80-2, 108, 165, Madvig II pp 274-7.

Saturninus, having through the violent assault of the quaestor Q Servilius Caepio been prevented from carrying his lex agraria, shortly after in the same year (103 BC) brought forward his lex de maiestate and apparently carried it. It was drawn up in the most general terms, imposing certain penalties on those who should in any way lessen the majesty (minuere maiestatem) of the Roman people. It was made to apply (like the laws on repetundae) to magistrates and senators only. It was probably meant to check the mutual opposition of magistrates, and possibly in the first instance to supply a means of punishing Caepio. But it certainly gave no definition of maiestas: hence all was left to rest on interpretation, in which the Roman pleaders found a congenial occupation for their talents. The court" to try cases of minuta maiestas was a quaestio perpetua. The penalty was the capital one of aquae et ignis interdictio. This law afforded powerful protection to the tribunes, in whose person the maiestas of the Roman people was especially centred. It was followed by the lex Varia of the tribune Q Varius in 90 BC, which extended the operation of the above to the movers and supporters of the Social war. Next, apparently in 81 BC, came the much wider and more detailed lex Cornelia of Sulla, by which the lex Appuleia was repealed. Its operation extended to the provinces, but it like the earlier laws applied to magistrates and senators only. A definition of the crime was given, bringing under it many and various offences, for instance, any lessening of the state's resources property or power; opposition to any magistrate, and thereby to the senate, to which body Sulla sought to secure the control of all officers of state; exceeding official powers; neglect of duty. It will be seen at once that this law tended to limit the competence of individual magistrates, and also

47 Maine Anc Law c 10 points out that the functions of the quaestiones were determined not by a classification of crimes as such, but by the terms and objects of the several statutes by which they were constituted. See appendix B

(6). The lex Appuleia may or may not have established a special quaestio maiestatis.

48 For the further development of the law of maiestas into a means of protecting the person of the emperor see Meri

that in its conception of the crime in question it trenched on those of repetundae and peculatus.

(q) Nor is it hard to see how it affected that of the old crime of perduellio. The two terms were now practically coextensive, and the real difference lay in procedure only. But this difference was all in favour of maiestas, which accordingly superseded perduellio. The jury court took the place of the clumsy comitia, a iudicium publicum of a iudicium populi. What had never been a truly technical expression gave way to one which was gradually defined and specialized. Thus a de facto revolution in criminal jurisprudence that had long been in progress was quietly accomplished. The old law or laws of perduellio were not abolished, and it was no doubt in theory still possible to punish under this name any of the multifarious offences to which it had once regularly been applied. But in practice this was not done, and the rarity of those offences (if any) that could only be treated as perduellio and not as maiestas caused the older term and forms of procedure to fall into disuse. It was therefore an unfair proceeding to bring Rabirius to trial at all on a charge of perduellio; and still more unfair to rake up the antiquated statute that governed the trial by duumvirs. Rabirius might as well or better so far as justice was concerned” have been tried on a charge of imminuta maiestas, or of vis under the lex Plautia of 78 BC; for that both this latter and the lex Cornelia were passed after the acts laid to his charge had been committed would have caused little or no difficulty 50 at Rome, had it been thought politic to proceed thus. We shall see that in this as in most Roman trials the accusers were

vale c 44, Madvig 11 pp 276—7. The definition of maiestas in the Cornelian law was probably far from precise.

49 See Maine's Ancient Law c 10. 50 On the contrary, it was a common proceeding to legislate in view of immediate application to special cases. See Huschke p 172 note 82. Thus we are told by Ascon ad orat pro Scauro p 134 (22 Orell) that the lex Varia provided

ut quacreretur de iis quorum ope consiliove socii contra populum Romanum arma sumpsissent. The way in which Clodius afterwards proceeded against Cicero is well known. See appendix F for the lex Sempronia, and compare the lex Pompeia under which Milo was tried for the murder of Clodius. See also de finibus II § 54, pro Cluent §§ 136—7.

influenced by other considerations than justice. To conclude, by the lex Iulia de maiestate of B C 46 it is probable that the older offence was still more completely absorbed in maiestas: and whether the term perduellio still found even in the Digest of Justinian be anything more than (as Rein1 thinks) an untechnical expression for the higher degree of maiestas it is beyond my province to enquire.

D. REGISTER OF CASES.

(1) The famous case of Horatius, for a full discussion of which see Prof E C Clark's Early Roman Law §§ 11-17. As to the treatment of a case of parricidium as one of perduellio, it should be noted that (a) Horatius was acquitted of the former by his father, (b) Horatius had, by murdering his sister, assumed the right of judgment, which did not belong to him. See in illustration Wharton's Law Lexicon under 'Petit Treason'.

(2) The agrarian law of Sp Cassius (consul 486 BC) so stirred patrician hatred against him that in 485 he was brought to trial. The charge was that he sought to make himself king, and his intended liberality to the Latins and Hernicans made him unpopular with the plebs. The form of the trial was probably that of an indictment for perduellio preferred against him by the quaestors1 before the comitia centuriata. The elaborate procedure which we find later was most likely not developed at this early date. No duumvirs are mentioned, but there may have been such-the quaestors may have acted in that capacity. From the words cedente populo in Cic de re publ II § 60 Zumpt infers that it was a case of appeal to the people from the sentence of the quaestors. The accused was probably not left at large, for we find that on condemnation he was put to death. See Zumpt's Criminal

51 Rein p 498.

1 So they accuse Volscius of false witness in Liv III 24, 25, 29, a case of what Zumpt calls the 'ordinary' cri

minal procedure. See Clark § 17 on quaestors, Mommsen Röm Staatsrecht II p 600, Lange I pp 385-9, II 514, Varro ling Lat VI § 90.