Several prosecutions in the era extending from the Gracchi to Sulla partake of the revolutionary nature of the time. The inconsistency in the position of Ti. Gracchus, who depended on the sanctity of the tribunate while technically violating it in the person of his colleague Octavius, is illustrated by his attack on T. Annius Luscus. The latter, a man of consular rank, challenged Tiberius in the senate to answer definitely whether or not he had branded with infamy a brother tribune whom the law declared sacred and inviolable. The senators applauded the challenge; but Tiberius, hurrying from the Curia, convoked the plebs, and ordered Annius to come forward and defend himself against the charge of violating by his words the tribunician sanctity. Before the proceedings could begin, Annius by permission asked his accuser: “If you intend to deprive me of my rank and disgrace me, and I appeal to a colleague of yours, and he comes to my support, and you thereupon lose your temper, will you deprive him of his office?” Plutarch, who tells this story, alleges further that Tiberius, not knowing what to reply, dismissed the assembly and withdrew his accusation.[1962] But the fact that Annius made a speech against Tiberius[1963] indicates that the proceedings went farther. Evidently the accused in some way escaped condemnation. The same political significance attaches to the tribunician capital prosecutions of the time, mentioned in an earlier chapter.[1964] No more actions, however, are known to have been brought by the tribunes before the tribes till 103,[1965] when Cn. Domitius Ahenobarbus, a popular tribune of the plebs, author of the famous statute concerning the election of sacerdotes,[1966] prosecuted M. Junius Silanus for misconduct as consul in 109. The charge was that he had begun war on the Cimbri without an order of the people. Notwithstanding the stigma of defeat borne by the accused, he was acquitted by thirty-three of the thirty-five tribes.[1967] In the same year Domitius prosecuted M. Aemilius Scaurus for having as consul neglected the sacra of the di Penates at Lavinium. The accused was acquitted by the votes of thirty-two tribes.[1968] These prosecutions, together with the plebiscite just mentioned, excited against Domitius an antipathy among the optimates which reveals itself in the sources but which his character hardly deserved.[1969]
Another popular tribune, C. Appuleius Decianus, 98, brought against P. Furius the accusation that in the preceding year the latter as tribune of the plebs had betrayed the people’s cause. Acquitted of that charge, he was accused later in the year by C. Canuleius, another tribune, on the ground that he had impeded the return of Metellus.[1970] In one of the contiones for the trial of this case the citizens would not listen to the defence of the accused but tore him in pieces. In the same year Appuleius prosecuted L. Valerius Flaccus, curule aedile, on what charge is unknown. His own condemnation to exile, more probably by the centuries than by a quaestio, on the ground that in his accusation of Furius he lamented the death of Appuleius Saturninus, his gentilis, is mentioned in an earlier chapter.[1971]
Sulla’s completion of the system of standing courts and his restriction of the tribunician function of prosecution[1972] substantially withdrew all judicial power from the tribal assembly under the presidency of tribunes. The overthrow of the Cornelian constitutional arrangements left the standing courts with jurisdiction unimpaired. Though constitutionally the tribunes by this overthrow regained their right to prosecute, they exercised it rarely and feebly during the remainder of the republic. C. Memmius, tribune of the plebs in 66, brought M. Terentius Varro Lucullus to trial for what he had done long before in his quaestorship at the dictation of Sulla. As the motive was evidently personal, the accused was acquitted.[1973] Early in 58 L. Antistius, tribune of the plebs, in the interest of the optimates threatened to prosecute C. Julius Caesar, who had just retired from his consulship and was on the point of setting out for his provinces. Caesar appealed to the other tribunes, who suspended the prosecution on the ground that the accused was to be necessarily absent in the service of the state.[1974] In the year 44 C. Epidius Marullus and L. Caesetius Flavius, tribunes, instituted proceedings against the man who took the lead in acclaiming Caesar king as he was returning from Alba. The evident displeasure of Caesar at the accusation caused its withdrawal.[1975] In incomplete trials, like those last mentioned, it is seldom possible to determine whether they were to come before the centuries or the tribes.[1976]
II. Aedilician Jurisdiction
Before the Hortensian legislation the curule and plebeian aediles alike had cognizance of usury, stuprum, and violation of the law concerning the limitation of occupation and pasturage of the public lands.[1977] In the period now under consideration, beginning in 287, they continued to exercise the same function besides taking upon themselves some new cases. Aedilician actions for violation of the pasturage clause of the Licinian-Sextian statute took place in 240,[1978] 196,[1979] and 193.[1980] Closely related is the fining of usurers in 192,[1981] and of grain dealers for cornering the market in 189.[1982] In 157 C. Furius Chresimus was prosecuted by a curule aedile for injuring the crops of others by magic, and the case came before the tribes in the Forum. By bringing his farm tools into the assembly and calling them his instruments of magic he induced the citizens to vote his acquittal.[1983]
There are several known cases of criminal lust which fell within the aedilician cognizance. In 227 C. Scantinus Capitolinus during his term of office as tribune or aedile of the plebs was prosecuted by M. Claudius Marcellus, curule aedile, on a charge of attempted paederastia. He called attention to the sanctity of his person; but as the tribunes refused to protect him on that ground, he was condemned by the people.[1984] Most of the known cases of this general character were against women. Several matrons, accused of stuprum by the plebeian aediles of 213 and fined by the comitia tributa, retired into exile.[1985] About the time of the war with Hannibal a charge of incest, based on the fact of intermarriage between close relatives and brought doubtless by an aedile, was judged favorably to the accused by the people.[1986] The curule aedile A. Hostilius Mancinus, 183, brought to trial before the tribal assembly Manilia, a courtesan, who, he alleged, had thrown a stone at him in the night and had wounded him. Manilia, appealing to the tribunes, explained that he was attempting violently to break into her house, when she repulsed him with stones. Thereupon the tribunes decreed that the prosecutor deserved the treatment he had received. They interceded against his action, which accordingly had to be dropped.[1987]
One case of perduellio under aedilician jurisdiction is recorded. In 246 Claudia, sister of that P. Claudius Pulcher who lost his fleet off Drepanum,[1988] was jostled by the crowd as she came from the games. She was heard to say on this occasion that she wondered what would have happened to herself, had her brother not caused the death of so many of the citizens, and to wish that he were again living, to lose another fleet together with the crowd that troubled her. For these words she was brought to trial by the aediles of the plebs, and the people imposed on her a fine of 25,000 heavy asses.[1989] The case is described as a iudicium maiestatis apud populum Romanum.[1990]
The jurisdiction of the aediles as well as that of the tribunes suffered from the growth of standing courts.[1991] The fact that the power remained, provided the holder was in a position to use it, is proved by the occasional recurrence of a prosecution in the lifetime of Cicero. First may be mentioned the proceedings instituted by C. Flavius Fimbria, aedile in 86, against Q. Scaevola. Evidently the case did not come to vote.[1992] Interesting is the threat of Cicero[1993] as curule aedile to bring to trial before the people C. Verres and all who should by bribery aid his acquittal. The circumstance that Cicero was ready to place so great a function upon the aedileship is proof of the confusion into which the ideas of popular jurisdiction had fallen through infrequent use.[1994] Another anomaly is the prosecution begun by P. Clodius against T. Annius Milo on the charge of violence (vis).[1995] It took place in the Forum before the comitia tributa, but we do not know whether it came to a vote.
III. Pontifical Jurisdiction
In the exercise of his disciplinary power the supreme pontiff sometimes imposed a fine on a sacerdos under his authority. An appeal to the thirty-five tribes was allowed, if the amount of the penalty reached the appealable limit.[1996] After the analogy of the civil magistrate the pontiff presided over the assembly during the trial.[1997] In 189 Q. Fabius Pictor, who was at the same time praetor and flamen Quirinalis, was forbidden by the supreme pontiff to go to the province assigned him. After much contention the pontiff imposed a fine, and an appeal was taken to the people, who decided that the flamen must obey the pontifex maximus, and on that condition remitted the fine.[1998] In 180 L. Cornelius Dolabella was fined for refusal to resign his office of naval duumvir that he might be inaugurated rex sacrificulus. The case was decided as the preceding, but an unfavorable omen which dissolved the assembly deterred the pontiffs from inaugurating him.[1999] A similar case occurred in 131.[2000] In the appeal of Claudius, an augur, from a pontifical fine, the date of which is unknown, though it probably followed the trials above mentioned, the people sustained the accused.[2001] These are the few recorded cases of appeal from sacerdotal jurisdiction. The moderation of the pontifex maximus, together with the respect of his sacerdotes for religion, usually served to prevent the need of recourse to the people. It is a noteworthy fact that the custom was practically conterminous with the era of the most highly developed plutocracy. The circumstance that in all the cases known to have fallen within this period the people confirmed the authority of the pontiff affords striking evidence of the perfection to which the optimates had now brought the religious machinery of their political system.[2002]