committal might bring on the whole community. Such a BOOK II. name was given to sexual relations established between individuals within certain degrees of consanguinity and to certain breaches of religious obligation such as the unchastity of a vestal. It is to offences of the first kind that the term incest more peculiarly applies in Roman law, and their punishment probably continued to be a part of purely pontifical jurisdiction longer than that of other crimes which had once been treated as sins. This seems shown by the religious penalty of death from the Tarpeian rock which reappears even under the Principate1 and by the expiatory rites which followed condemnation on the charge 2. The procedure in eliciting evidence also continued to be exceptional, the torture of slaves against their masters being always permitted. But, in spite of these survivals, incest Some cases of this ordinary kind was a matter for the civil power. come beThat it might be a subject for a iudicium populi is shown secular by a story illustrative of a change in the marriage law of courts. Rome. A test case came before the people through a man being accused of an intention to marry his cousin. The people dismissed the charge, and from henceforth such marriages were permitted. There was no legislation on incest of this kind in the later Republic, and it did not form the subject, or a part of the subject, of any of the quaestiones perpetuae. Hence, if incest was not a dead letter in the Ciceronian period, it could have been met only in one of two ways, either by a iudicium populi or by the establishment of a special commission. of incest fore the mains the But there was one branch of incestum which always One reremained the subject of pontifical jurisdiction; this was subject of the unchastity of a vestal. The accused was tried before pontifical jurisdiction. 1 Tac. Ann. vi. 19 (A. D. 33). 2 ib. xii. 8 (A.D. 49). 'Cic. pro Mil. 22, 59' De servis nulla lege quaestio est in dominum nisi de incestu' (in Part. Orat. 34, 118 he adds coniuratio to incest); cf. Marcian in Dig. 48, 18, 5. Plut. Qu. Rom. 6. Trial of a vestal and her para. mour. BOOK II. the high pontiff with his consilium of pontifices'. The full college of Cicero's day numbered fifteen, and although on ceremonial questions a decision agreed on by three was considered as carrying due weight, a much larger attendance was thought desirable for capital jurisdiction 2. The proceedings seem to have been public and advocates to have been admitted 3. Evidence might be wrung from the vestal's slaves by torture; and if she was found guilty, she was led through the Forum and buried alive in the Campus Sceleratus near the Colline gate; her paramour was scourged to death. Here again it has been held that we are dealing with the family jurisdiction of the pontiff over his adopted daughter. The explanation might be appropriate were it not for the capital sentence pronounced on the seducer. The paramour of a daughter who was on her trial could only have been condemned by a mixed court composed of his relatives as well as hers; but in the pontifical proceedings there is no trace of this mixed representation. They are far more likely to be the survival of a spiritual jurisdiction maintained in this instance by the purely religious character of the crime and the horror which it inspired. The sex of the vestals and their complete emancipation from the paternal power may have contributed somewhat to its maintenance. But at the close of the second century B. C. we meet with Cic. de Leg. ii. 9, 22 'incestum pontifices supremo supplicio sanciunto.' These facts we may perhaps gather from Cicero's account of the pontifical decision about his house in 57 B. c. (Cic. de Har. Resp. 6, 12). Although this was not properly a iudicium of the college (Mommsen, Staatsr. ii. p. 49) the proceedings usual in jurisdiction were probably followed. The accused vestal was required 'familiam in potestate habere' (Liv. viii. 15), i. e. she was prevented from manumitting her slaves and so escaping the evidence which might be wrung from them by torture. Cf. Cic. pro Mil. 22, 59; Val. Max. vi. 8, 1. Dionys. viii. 89; ix. 40; Liv. viii. 15; xxii. 57; Juv. iv. 10; Festus, p. 333. Liv. xxii. 57; Festus, p. 241. 7 Mommsen, Staatsr. ii. p. 55. civil power a striking interference of the civil power even with this BOOK 11. religious jurisdiction. In 114 three vestals, Aemilia, InterferLicinia and Marcia, were accused of unchastity on the ence of the information of a slave. Feeling ran strong in Rome, and with this jurisdicthe belief that this unwonted impurity would bring some tion in terrible evil on the state1 no doubt prompted the extra- 114 B.C. ordinary proceedings which followed. At first the question was investigated by the chief pontiff L. Metellus with the assistance of his college. They condemned Aemilia, but Licinia and Marcia were acquitted. But the pontiff was suspected of too great leniency; the tribune Sex. Peducaeus took the matter up and induced the people to establish a commission by law, with L. Cassius as president, for the purpose of renewing the inquiry. The commission condemned the two acquitted vestals 2. Apart from the facts that the torture of slaves was employed at this trial and that one authority speaks of iudices 3, we know nothing of the procedure adopted. It is possible that the judges were Roman knights after the model of the Gracchan jurors, and the forms of procedure may have been those of other standing quaestiones of the time. If this was the case, a precise parallel would be found in the later trial of Clodius. We are also ignorant of the punishment inflicted, for it has been questioned whether vestals acquitted by the pontifices could have been buried alive. It has even been suggested that this secularization of the procedure was not unique, but that it marked a permanent change, that the old harsh methods of execution were given up and that 'the old spiritual procedure before the pontifices was not abolished 1 Dio Cass. frgt. 91 and 92. 2 Asc. in Milon. p. 46 (comment to Cic. pro Mil. 12, 32); cf. Cic. de Nat. Deor. iii. 30, 74. Asconius says that Cassius the quaesitor'utrasque eas et praeterea complures alias nimia etiam, ut existimatio est, asperitate usus damnavit.' 'Complures alias' cannot refer to vestals. The college consisted of but six; and Dio Cassius (l. c., cf. Liv. Ep. lxiii) speaks of but three as condemned. The reference may be to intermediaries. 3 Val. Max. vi. 8, 1. of incest. : BOOK II. but practically suspended 1. It is a question that cannot Later cases be satisfactorily answered. There are, indeed, several cases of incest after this. Ser. Fulvius was defended by the elder C. Scribonius Curio in a speech that became famous 2: M. Licinius Crassus, the subsequent triumvir, was accused but acquitted of intercourse with a vestal Licinia 3; and Cicero's sister-in-law Fabia, one of the virgins, was also acquitted on the charge of an intrigue with Catiline. But in none of these cases do we learn anything of the procedure employed or the punishment contemplated. In this connexion, however, it is worth noting that the revival of the pontifical jurisdiction by Domitian was not looked on with favour and that the emperor himself admitted two methods of punishment, the one secular, the other religious ". Early date assigned to special commissions. types. 5 § 10. Special Commissions. If we may trust tradition, it was at a very early period that Rome first felt the difficulty of using her cumbrous criminal machinery to meet special emergencies. The The three annalists carry back the institution of special commissions to the fourth and even to the fifth century B. C. From the year 413 to the year 110 two types are represented: those established by the senate and people, and those set up by the senate alone. The last mentioned year, which ushers in a revolutionary movement, shows a commission established solely by the people. So legendary and imperfect are the accounts, that the vital question whether 1 Zumpt, i. p. 117. 2 Cic. Brut. 32, 122; de Inv. i. 43, 80; Auct. ad Herenn. ii. 20, 33. ' Plutarch, in his account of this case (Crass. 1), speaks of diaoraí. Asc. in or, in Tog. Cand. p. 93; Sall. Cat. 15, I. Plin. Ep. iv. 11; Dio Cass. lxvii. 3. • Suet. Dom. 8 Incesta vestalium virginum, a patre quoque suo et fratre neglecta, varie ac severe coercuit: priora capitali supplicio, posteriora more veteri.' 7 The quaestio Mamilia described on the next page. sions these commissions (especially those established by the BOOK II. senate) excluded appeal to the people, cannot always be determined; but a brief survey of this history of judicial delegation may be of use as showing some of the traditions. on the subject which were handed down to Cicero's generation. Of four commissions established by the senate and Commispeople two were entrusted to consuls and two to praetors1. establishIn the case of two which completed their work 2 there is ed (i) by no mention of the provocatio. The two others had no people ; issue, one from the expiry of the commissioner's term of office and therefore of his mandate, the other from the voluntary exile of the accused; but in neither of these cases is there any mention of the possibility of appeal. senate and Mamilia; A type of commission established by the people alone, (ii) by the people when sovereignty was falling from the weak hands of the alone. senate, is furnished by the quaestio Mamilia established Quaestio in 110 B.C. The tribune C. Mamilius introduced a bill by which three commissioners (quaesitores) should be appointed to institute an inquiry with regard to those who had, directly or indirectly, supported Jugurtha in his conflict with Rome 3. This commission was not chosen from the magistracy; amongst its members was M. Scaurus, at that time of consular rank. We are not told the method adopted by the three in the performance of their functions, but it is not improbable that each quaesitor was the president of a separate court, and it is certain that each had with him a panel of iudices. The equites as established by the Gracchan law were the jurymen in this commission. The investigation unquestionably excluded any further appeal 1 Commissions of 413 and 141 B. C. to consuls (Liv. iv. 51; Cic. de Fin. ii. 16, 54), of 187 and 172 to praetors (Liv. xxxviii. 54-60; xlii. 21 and 22). 2 Those of 413 and 187 B. C. 3 Sall. Iug. 40' uti quaereretur in eos, quorum consilio Iugurtha senati decreta neglegisset; quique ab eo in legationibus aut imperiis pecunias accepissent; qui elephantos, quique perfugas tradidissent; item qui de pace aut bello cum hostibus pactiones fecissent.' Cic. Brut. 34, 128 Nam invidiosa lege [Mamilia quaestio] C. Galbam sacerdotem et quattuor consulares L. Bestiam, C. Catonem, Sp. Albinum |