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a senator, who declined to perform his duties, Cicero BOOK II. exposed himself to the wrath of Antonius in 44 B. C. The consul in this case was not exceeding his legal powers in threatening the demolition of Cicero's doors, but the courtesy of official relations should have made him content with a security smaller and less violently exacted1. The use of this legal violence against a magistrate is illustrated by the relations of the consul P. Servilius Isauricus to the praetor M. Caelius Rufus in 48 B. C. The consul was not content with impeding the praetor's revolutionary designs by suspending him from his office, excluding him from the senate and dragging him from the Rostra, but broke his curule chair into fragments as a visible sign of displeasure that would impress the crowd2. A private individual who had infringed the magistrate's dignity was equally exposed to this form of coercion. Caesar as praetor in 62 B.C., when imprisoning Vettius, seized and destroyed some furniture of the would-be informer 3.

The pignoris capio of the publicani which we have discussed in connexion with civil law was perhaps this right granted in a modified form by the praetor to the State-contractors. In this case, however, the pledge could not be destroyed but was detained as security for the debt.

ences be

tween the

tracies

Although, after the provocatio had limited the right to Differinflict death and scourging, the means of coercion which we have enumerated belonged, generally speaking, to the magis magistracy as a whole; yet a formal difference existed with between the higher and the lower magistrates and between to the the magistrates with imperium and the tribunes in the exercise of manner in which they put these methods into force. The

Cic. Phil. i. 5, 12 'ille (Antonius) . . . cum fabris se domum meam venturum esse dixit. . . . Quis autem umquam tanto damno senatorem coegit? Aut quid est ultra pignus aut multam?'

Dio Cass. xlii. 23; Quinctil. Inst. Or. vi. 3, 25.

'Suet. Caes. 17‘pignoribus captis et direpta supellectile.' See p. 333, note I. Mommsen, Staatsr. i. p. 161.

4

respect

coercion.

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prensio.

BOOK II. consuls and other magistrates with imperium had the right of summoning delinquents before their tribunal Vocatio and (vocatio) as well as of summarily arresting them in person (prensio). The quaestors and all lower officials had neither of these rights, and the theory of the tribune's being an exceptional magistrate who should render assistance in person was so far preserved that he had only the right of arrest. We sometimes meet with tribunes who carried out their mandates with their own hands; but their presence alone was sufficient for the prensio to be effective. In early times they employed their aediles for the act of force, in later their viatores2. By the close of the Republic this distinction had become obliterated and the tribunes, without formal right, summoned individuals before them. But there was a protest even in the Ciceronian period. Varro's respect for constitutional antiquity led him to decline to obey such a summons on the ground of its illegality, and, when tribune, he never exercised his right of vocatio, and interposed his veto when such an exercise was attempted by his colleague 3.

Principles regulating the judicial

spheres of

§ 5. The jurisdiction of the different magistrates and the separate comitia. The Triumviri Capitales.

The two fundamental principles regulating the relations of magistrates to people in criminal jurisdiction were (1) that capital cases should be reserved for the centuries the magis- and (2) that a case stated by a magistrate should be tried the comitia. in that assembly which the magistrate could approach— that the magistrates of the people should appeal to the

trates and

1 Varro, ap. Gell. xiii. 12.

Aediles were believed to have been used in the trial of Coriolanus (Dionys. vii. 26). Ti. Gracchus sent one of his viatores to drag his colleague Octavius from the Rostra (Plut. Ti. Gracch. 12); cf. Liv. xxv. 4 (in the case of Postumius mentioned on p. 328) 'tribuni ni vades daret, prehendi a viatore . . . iusserunt.'

Varro, ap. Gell. xiii. 12, 6.

...

comitia, the plebeian magistrates, where possible, to the BOOK 11. plebs. An exception to the first principle is furnished by the special capital jurisdiction of the concilium plebis, and exceptions to the second are found in the facts that the consular delegates, the quaestors, although possessing in their own right no ius agendi cum populo, yet guided the assemblies in which an appeal from their decision was considered, and that the tribune, when bound by the provision of the Twelve Tables, approached and probably had the presidency of the comitia centuriata.

But, generally speaking, the directing magistrate and the penalty which he proposes are true indices of the popular court which tries the case. A capital penalty, with certain exceptions in favour of the tribunes of the plebs, comes before the centuries; a monetary penalty proposed by a magistrate of the people is brought before the comitia tributa populi, a similar penalty proposed > by a plebeian magistrate before the concilium plebis. It is from this point of view that we shall specify the various forms of popular jurisdiction that were still legally possible and still sometimes employed in Cicero's day.

jurisdiction

consul;

(i) The criminal jurisdiction of the consul was expressed Criminal in three ways. It had been, in the first place, exercised through the (i) of the quaestor, as the regular capital jurisdiction for ordinary as opposed to political crimes, but this jurisdiction had become extinct through the growth of the quaestiones perpetuae. Secondly, it might be asserted as part of his coercive power with or without appeal according to the nature of the sentence imposed. But the very existence of the laws of appeal led to the consuls never exceeding their inappellable coercitio. Thirdly, it might be jurisdiction without appeal delegated by the people. We shall trace elsewhere the growth of a custom by which the comitia assigned jurisdiction on certain crimes to special commissioners. The people, acting in this delegation on

BOOK II. the advice of the senate, generally left the appointment of the commission to that body, and the senate often selected either a consul or a praetor. But the growth of the standing courts rendered these special commissions more and more unnecessary. There is, in fact, practically no consular jurisdiction in criminal matters during the Ciceronian period.

(ii) of the praetor;

(iii) of the curule and plebeian aediles;

(ii) The praetors were potentially as fully criminal judges as the consuls, and there may have been a time when a portion of criminal jurisdiction was actually in their hands1. To them, too, as to the consuls special judicial commissions might be entrusted by the people. But their attention was mainly devoted to civil jurisdiction and provincial government until the establishment of the standing criminal courts claimed their attention.

(iii) The aediles, both curule and plebeian, are sometimes found exercising functions of criminal jurisdiction, all of which cannot be brought into close connexion with their special duties-the care of the archives, the market and the games-and cannot, therefore, be explained as the result of their coercive power. This criminal jurisdiction was, like the civil jurisdiction of the curule aediles, an anomaly, for these magistrates did not possess the imperium. It is to be explained partly as a survival (for some jurisdiction of the kind had in early times been exercised by the plebeian aediles) and partly as dictated by considerations of convenience. Before the institution of the quaestiones perpetuae the lack of criminal courts at Rome must have been sorely felt. The quaestors were at hand for the trial of ordinary capital crimes and the tribunes for political jurisdiction; but what was needed was a magistracy that would bring lesser crimes involving a mere money penalty before the people. This was discovered in the aedileship, and we find these magistrates prosecuting for stuprum 2, for usury 3, for speculation in 1 Zumpt, i. 2, pp. 105-106.

2 Liv. XXV. 2.

3 Liv. XXXV. 41.

corn prohibited by the laws1 and for exceeding the per- BOOK II. mitted amount of domain land. A prosecution by the aedile in defence of his own dignity or person3 may be interpreted as a result of his coercitio. It is true, however, that the aediles were not prohibited from undertaking the prosecution of political crimes, if these could be met by a fine-such crimes as the mild treason committed by Claudia in 246 B. C., when, jostled in the streets, she uttered a wish that her brother Pulcher were still alive to lose another naval battle and thin the ranks of the Roman rabble. But Cicero's threat to prosecute Verres on graver charges of treason would, if carried out, have been an unusual proceeding on the part of a curule aedile. The trial must have been conducted before the comitia tributa populi, and the condemnation could only have been pecuniary. Impeachments for the bribery of a bench of iudices and for breaches of the peace (vis) were more strictly in harmony with the police duties of these magistrates. A threat of the first kind of prosecution is made by Cicero as one of the first-fruits of his aedileship; the second may be illustrated by the impeachment of Milo for vis by Clodius in 56 B. C. This trial took place in the Forum, and, as Clodius was curule aedile at the time. must have been held before the comitia tributa populi. In fact, the aediles as the initiators of jurisdiction always approached the tribes. The curule aediles as magistratus

1 Liv. xxxviii. 35.

2 Liv. X. 13.

Gell. iv. 14.

She was prosecuted in 246 B. c. by two plebeian aediles (Gell. x. 6; Suet. Tib. 2).

'Cic. in Verr. i. 5, 12 and 14; v. 67, 173.

• Cicero (in Verr. Act. i. 12. 36) threatens to prosecute those 'qui aut deponere aut recipere aut accipere aut polliceri aut sequestres aut interpretes corrumpendi iudicii solent esse.'

Cic. pro Sest. 44, 95 Nam quid ego de aedile ipso loquar, qui etiam diem dixit et accusavit de vi Milonem?'; pro Mil. 15, 40 'privato Milone et reo ad populum accusante P. Clodio.' The scene in the Forum is described in Cic. ad Q. fr. ii. 3. Other references to the prosecution are Ascon. in Milon. p. 49; Dio Cass. xxxix. 18.

to be found in Cic. in Vat. 17, 41;

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