The Roman assemblies from their origin to the end of the Republic

by George Willis Botsford

The practical establishment of the right of appeal ordinarily led the magistrate in the exercise of his disciplinary power to substitute light fines and imprisonment, which he had full power to enforce, for the heavier penalty of scourging.[1462] But in case of crimes, especially perduellio and parricidium, public sentiment compelled him to prosecute the accused to the full extent of the law. In the former accusation the consul of the early republic appointed duumviri perduellioni iudicandae for each case as it arose.[1463] This office is obscure because, without being formally abolished, it fell early into disuse, its function passing to the tribunate of the plebs. Of the three cases attributed by the sources to these duumviri, that of Horatius[1464] belongs to the regal period, and is a mythical prototype of the republican procedure. The offence has the appearance of parricidium. Only by the broadest interpretation could perduellio be made to cover the murder of a sister.[1465] The second case is that of M. Manlius, 384, according to the more credible account,[1466] whereas Livy[1467] himself is of the opinion that the prosecutors were the plebeian tribunes. We may conclude, then, that the duumviri were still employed at this date.[1468] The third case is an unsuccessful attempt in 63 to revive the office for the trial of C. Rabirius.[1469] The first republican law of appeal must have empowered the comitia to order the appointment of these officials by the magistrate;[1470] and it seems probable that at a later date unknown to us they began to be elected by the people.[1471] The function of the duumviri was to try the case and pronounce sentence, from which if condemnatory the accused had a right to appeal to the comitia centuriata.[1472] From the analogy offered by the questorian procedure we may infer that the duumviri requested from a higher magistrate permission to take auspices for that assembly, over which they presided in the final trial.[1473]

All capital crimes committed by a citizen against another were in a similar way referred by the consuls to the quaestores parricidii as their deputies.[1474] The activity of these officials is first mentioned by the annalists in connection with the trial of Sp. Cassius, not for murder but for perduellio.[1475] Lange’s[1476] explanation that the quaestors were appointed duumviri for the trial would satisfy all requirements; yet in myths of this kind we need not expect absolute legal consistency.[1477] According to another, perhaps even earlier, version he was tried and condemned at home by his father.[1478] The second instance is the trial of M. Volscius, 459, for false testimony,[1479] which was likewise a capital crime. Their judicial competence was recognized by the Twelve Tables;[1480] and two capital cases are assigned to their jurisdiction after the decemvirate, (1) that of Camillus on an accusation variously stated by the ancient authorities;[1481] he avoided capital prosecution before the centuries by retiring into exile, and in his absence was condemned by the tribes to a fine of 15,000 or perhaps 100,000 asses: (2) that of T. Quinctius Trogus brought by the quaestor M. Sergius,[1482] which must have taken place after 242.[1483] The reason for the fewness of the known cases is to be sought in the circumstance that their jurisdiction was substantially limited to common crimes, whereas political crimes came at first before the duumviri and afterward before the tribunes of the plebs.[1484] The criminal jurisdiction of the quaestors must have continued till the institution of standing quaestiones.[1485]

While the importance of the comitia centuriata as a criminal court was enhanced by the lex Valeria Horatia and the Duillian plebiscite of 449, which prohibited the election of a magistrate with absolute jurisdiction, the number of officials competent to bring capital actions before this assembly was increased as a result of that law of the Twelve Tables which enacted that all resolutions concerning the caput of a Roman citizen should be offered to the centuries only.[1486] Thereafter the tribunes were required to prefer their capital accusations before this assembly, for the summoning of which they, like the quaestors and the duumviri perduellioni iudicandae, requested the auspices of a higher magistrate, ordinarily after 367 of a praetor.[1487] For a time, probably till the Hortensian legislation, they were dependent upon the patrician magistrates for this privilege.[1488] According to our sources the tribunes, with the approval of the consuls,[1489] entered upon their new sphere of judicial activity by bringing a capital charge against Appius Claudius and Sp. Oppius, past decemvirs, for misconduct in office, the specific charge being the abuse of justice in the interest of a person or of a party.[1490] The suicide of the accused prevented the trial. On the eight remaining decemvirs they passed in the same assembly a sentence of exile.[1491] M. Claudius, too, condemned for false testimony, was exiled, the death penalty being mitigated also in his case.[1492] The tribunes of 439 are said to have accused L. Minucius and C. Servilius Ahala for the part they had taken in the death of Sp. Maelius, and two years afterward Servilius was sentenced to exile by the comitia centuriata, to be recalled later by the same body. The charge against the former was false testimony, against the latter the putting to death of a citizen who had not been legally sentenced.[1493] Livy next mentions a charge, probably of perduellio, brought by the tribunes against Q. Fabius, 390, for having, in violation of the ius gentium, fought against the Gauls while he was an ambassador to them. He, too, is said to have died before the trial.[1494] All these cases are uncertain. If historical, they may represent the beginnings of capital jurisdiction of the tribunes, in rivalry with the duumviri; or they may in reality, like the case of M. Manlius, 384, already mentioned, have been duumviral. On either alternative they came before the centuriate comitia.

As we approach firmer historical ground, we hear of three accusations of unnatural lust alleged to have been brought by the tribunes of the plebs before the same comitia: (1) that against L. Papirius, 326,[1495] (2) that against L. or M. Laetorius Mergus, a military tribune, quod cornicularium suum stupri causa appellasset,[1496] (3) the case mentioned by Pliny and others against a person of unknown name, which probably belongs to this period.[1497] The second case seems to be a trial of official accountability, which fell within tribunician jurisdiction according to the usage of historical time; the others are too little known to be legally formulated.

In this period falls the attempted prosecution of Appius Claudius Caecus, 310, on the ground that he had not laid down the censorship at the end of the limit of eighteen months.[1498] The accusing tribune ordered him to be seized and imprisoned, but three colleagues interceded.[1499] About the same time M. Atilius Calatinus was unsuccessfully prosecuted on a charge of having betrayed Sora,[1500] probably in connection with the defection of that town to the Samnites in 315.[1501]

In reviewing the cases said to have been brought by tribunes before the comitia centuriata it is surprising to find the period from the institution of the office to the trial of Q. Fabius, 390, swarming with such prosecutions, whereas for the century intervening between that date and the Hortensian legislation comparatively few cases are recorded and those of little significance.[1502] These circumstances tend to prove that the cases assigned to the earlier and less known period either belong mostly to the jurisdiction of the duumviri or of the quaestors rather than of the tribunes, or are in great part mythical, and that the tribunes, therefore, exercised no extensive capital jurisdiction before the enactment of the Hortensian law.[1503] We are led thence to the conclusion that either by an article of the statute of Hortensius or at least as a recognized consequence of the high place in the government assured the tribunes by it, the jurisdiction of these magistrates in political cases was freed from every restraint. At this time they succeeded wholly to the place of the duumviri. The cases of which the tribunes had cognizance were thereafter exclusively political, whereas the questorian jurisdiction was confined to murder and other common crimes. This distinction was not a limitation upon the power of the tribunes, who if they chose might have superseded the quaestors as easily as they had superseded the duumviri. It was rather a division of functions adopted by the tribunes themselves in view of their own political character and on the basis of the relative dignity of the two offices. The chief judicial function of the tribunes, accordingly, was to hold officials responsible for their administration, though occasionally they called private persons to account for their conduct as citizens. All grades of officials were within their jurisdiction, but most of the cases were against the higher magistrates.

The first tribunician case of the kind after the Hortensian legislation, and the first which is absolutely free from historical doubt, is that brought against P. Claudius Pulcher on the ground that as consul, 249, he fought the naval battle off Drepana contrary to auspices, thereby losing his fleet. After the comitia had been interrupted by a storm, the intercession of colleagues against the resumption of the trial saved him from the death penalty. As the result of a new trial before the tribes, however, he was fined 120,000 asses, 1000 for each ship lost.[1504] His colleague, L. Junius, by suicide escaped condemnation on a charge of perduellio.[1505] In 212 two tribunes of the plebs prosecuted M. Postumius Pyrgensis, a publican, before the tribes for fraud, setting the penalty at 200,000 asses; but the accused with his friends violently broke up the assembly, whereupon the tribunes, dropping the original charge, prosecuted him for perduellio,[1506] we should suppose before the centuries.[1507] Among the complaints urged against him by the consuls in the senate were that “he had wrested from the Roman people the right of suffrage, had broken up a concilium plebis, had reduced the tribunes to the rank of private persons, had marshalled an army against the Roman people, seized a position, and cut the tribunes off from the plebs, and had prevented the tribes from being called to vote.” Specifically the crime must have been perduellio.[1508] Before the day of trial he withdrew into exile. In his absence the plebs on the motion of Sp. and L. Carvilius decreed that he was legally in banishment, that his property should be confiscated, and that he should be interdicted from fire and water. In this connection it should be noticed that whereas the banishment of a citizen by lex or iudicium was the exclusive right of the centuries,[1509] the tribes were competent to decree him an exile after his voluntary retirement.[1510] Some of the coadjutors in the violence of the publican above mentioned left their bail and followed him into exile; others were imprisoned to await capital trial, with what result the historian does not inform us.[1511]

In the same year Cn. Fulvius, a praetor, met with military reverses through gross cowardice,[1512] and in the following was prosecuted in a finable action by a tribune of the plebs for having corrupted his army by the example of his unsoldierly habits. Finding in the course of the trial that the fault of the magistrate was far more serious than had been imagined, and that the people were in a temper to vote the extreme penalty, the prosecutor changed the form of accusation to perduellio on the ground that such cowardly conduct in a commander threatened the existence of the state. In this instance, too, the accused avoided trial by withdrawing into exile.[1513] In 204 by a decree of the senate a special commission, consisting of the praetor for Sicily with a council of ten senators,[1514] was appointed for the trial of a legate of Scipio, Q. Pleminius, on the charge that he had robbed the temple of Persephone in Locri and had violently oppressed the Locrians.[1515] The commission brought him and his accomplices in chains to Rome and cast them in prison to await their trial for life before the centuries.[1516] The day of trial was continually deferred, till finally Pleminius, now charged with the instigation of a plot to burn the city, was put to death in prison.[1517] The fate of his accomplices is unknown.[1518] Livy[1519] remarks that while Pleminius was languishing in jail the wrath of the populace gradually changed to sympathy, to such an extent doubtless as to convince the authorities of their inability to secure a popular verdict in favor of the death penalty. In fact since the death of M. Manlius Capitolinus, 384, no example of the execution of a death sentence pronounced by the assembly is recorded in history.[1520] But the magistrate probably often inflicted corporal punishment in violation of the third Valerian law. To put an end to this abuse, and at the same time to embody in legal form the popular feeling against the application of the death penalty to citizens, a Porcian law absolutely forbade the scourging or slaying of a citizen under the imperium domi, the article prohibiting the sentence of death being afterward reënforced by other enactments.[1521] There has been much discussion as to the authorship of this law; probably it was the work of M. Porcius Cato the Elder in his praetorship, 198.[1522] Another Porcian law, probably of P. Porcius Laeca, praetor in 195, extended the right of appeal to Roman citizens who were engaged in the affairs of peace outside the city, in Italy and the provinces, and were therefore under the military imperium.[1523] According to this law the citizen who appealed was sent to Rome for trial by the appropriate civil authorities. Still later the third Porcian law, which Lange[1524] conjecturally assigns to L. Porcius Licinus, consul in the year of the elder Cato’s censorship, 184, seems to have been passed for the benefit of Roman soldiers. We learn from Polybius,[1525] who wrote later than the date last mentioned, that the military tribunes were accustomed in court-martial to condemn common soldiers for neglect of sentinel duty and that the condemned were cudgeled and stoned, often to death, by their fellow-soldiers. He also speaks of the punishment of entire maniples by decimation. Under Scipio Aemilianus, 133, the Roman who neglected duty was flogged with vine stocks, the foreigner with cudgels.[1526] Cicero[1527] intimates that in his own time there was no appeal from the judgment of commanders; and in fact it is impossible to understand how discipline could otherwise be maintained. Evidence to the contrary is scant and uncertain. The person against whom an accusation of desertion was brought before the tribunes of the plebs in 138 seems to have claimed to be a civilian, and on that ground appealed to the tribunes. When proved guilty he was flogged and sold as a slave, probably by a judgment of the military authorities.[1528] In 122 Livius Drusus proposed to exempt Latin soldiers from flogging.[1529] While informing us that in 108 a commander had a right to scourge and put to death a Latin official, Sallust[1530] intimates that he had less authority over a Roman. In the time of the emperors, on the other hand, soldiers were subject to the death penalty as in the time of Polybius.[1531] All these circumstances may be best explained by supposing that the third Porcian law permitted the infliction of flogging and death on Roman soldiers by the judgment only of a court-martial.[1532] This difficult subject is further complicated by the statement of Cicero[1533] that the three Porcian statutes introduced nothing new excepting by way of penalty. Interpreted in the light of other information given by various authors, including Cicero himself, these statutes simply extended the right of appeal by adapting the Valerian principle to new conditions, and substituted exile in place of scourging and death. In the relation between the accused and the civil court the cry “civis Romanus sum” was thereafter a sufficient protection from bodily injury.[1534]

In the period to which the Porcian laws belong falls the accusation of perduellio brought by the tribune P. Rutilius Rufus against the censors C. Claudius and Ti. Sempronius Gracchus, while they were in office, 169. The charge against Gracchus was disregard of the tribunician auxilium, against his colleague the interruption of a concilium plebis (quod contionem ab se avocasset). The accused, foregoing the privilege of their magistracy, consented to a trial, which came before the comitia centuriata. Claudius narrowly escaped condemnation, whereupon the case against Gracchus was dropped.[1535]