BOOK II. in such cases, to be examined and weighed. It was discovered that juries found it difficult to come to a decision after a single hearing; ampliationes, following on a verdict of non liquet, were so frequent that their employment had to be restrained by law1; and it may have been felt that one of the chief reasons for this uncertainty of jurors was that they were supplied with no comments on the evidence. A naked mass of contradiction was before them, not harmonized either for proof or disproof by the orator's skill. Such a review was now possible through the speeches in the second action of the comperendinatio, and these, whatever light they threw on the truth, must have increased the conviction and comfort of the iudices.

3

In certain cases an issue other than that of the mere guilt or innocence of the accused had to be raised: recovery was the object of certain prosecutions, and in trials for extortion (repetundarum)2 and peculation (peculatus) 3 conviction on the main charge was followed by an assessment of damages (litis aestimatio). In cases of extortion this was a complicated and difficult matter, since the claim for damages might come from so many different quarters. The demands of each state had to be considered separately, and the separate claims were stated one by one in the list of damages which was committed to writing. In estimating such damages juries exercised

1

1 p. 499.

2 Cic. in Verr. Act. i. 13, 38; pro Cluent. 41, 116.

3 Cic. pro Mur. 20, 42.

When Cicero says (pro Cluent. 41, 116) 'maiestatis absoluti sunt permulti, quibus damnatis, de pecuniis repetundis lites [majestatis] essent aestimatae' he means that conviction for the first offence would have necessitated prosecution for the other, with an accompanying litis aestimatio. His point is that a jury may regard an offence lightly and yet follow it, if by any chance conviction ensues, with a heavy assessment of damages. Such a document is quoted by Cicero (in Verr. i. 38, 96) 'Recita. LITIBUS AESTIMATIS CN. DOLABELLAE PRAETORIS) PECUNIAE REDACTAE; QUOD A COMMUNI MILYADUM'; cf. 39, 99. Whether the claims of individuals were stated separately, or grouped under those of their respective states, we cannot say

DE

a very free discretionary power and were inclined to be BOOK II. generous to the plaintiffs'; for, once a conviction on the main charge had been secured, their sympathy with the accused had disappeared. The close connexion of the iudicium with the litis aestimatio2 made it necessary that both should be under the control of the same jury, who performed successively the rôles of judges and of arbitrators.

In the laws of extortion which, like the Servilian, Cornelian, and Julian 3, enjoined the possibility of the recovery of money from any one who had shared improperly in the spoils of a provincial governor-from a prosecutor for instance, who had been bribed for purposes of collusionthe jury, which had tried the main case and assessed the damages due by the chief spoliater, was made responsible for this subordinate assessment as well; it was an appendix to the main trial and hence no new evidence was admitted 4. In this case, too, the jury did not feel bound by the rigid rules of evidence required for conviction for a crime, and Cicero remarks that individuals already mulcted in damages on a charge of participation in the spoils of 'Cic. pro Cluent. 41, 115 and 116.

The two are distinguished by Cicero, ib. § 116' statuitur aestimationem litium non esse iudicium.'

Cic. pro Rab. Post. 4, 8 and 9 'Iubet lex Iulia persequi ab iis, ad quos ea pecunia, quam is ceperit qui damnatus sit, pervenerit... hoc totidem verbis tralatum caput est, quot fuit non modo in Cornelia sed etiam ante in lege Servilia.'

ib. 13, 36 'cum in his iudiciis ne locus quidem novo testi soleat esse ob eamque causam iidem iudices retineantur qui fuerint de reo, ut iis nota sint omnia neve quid fingi novi possit'; (37) 'Lites quo EA PECUNIA PERVENERIT non suis propriis iudiciis sed in reum factis condemnari solent'; Cic. ad Fam. viii. 8, 2 and 3 'proiicitur Appius minor ut indicaret pecuniam ex bonis patris pervenisse ad Servilium praevaricationisque causa diceret depositum HS LXXXI... Mittit in consilium eosdem illos qui lites (of his father's case) aestimarant iudices.' Yet the trial does not seem to have been technically one for praevaricatio, as Mommsen seems to think (Strafr. pp. 448 and 725). It was technically repetundarum under the clause which enabled recovery to be made from any one to whom money had been improperly paid (pro Rab. Post. 13, 37; pro Cluent. 41, 116). In this case the money had been paid praevaricationis causa.

BOOK IL another, were, when accused of extortion on this amongst other grounds, sometimes acquitted by the very jury which had imposed the assessment1.

Pecuniary

bonorum possessio.

§ 18. Execution.

Execution, in criminal as in civil trials, was either pecuniary or personal.

In those trials, in which a money penalty was exacted, execution. the accused might give securities (praedes) for his debt immediately after his conviction: that is, at the stage when he first became a debtor, primarily to the state and, in matters of extortion, in a secondary degree to the persons represented by his accusers. Under the procedure Pruedes or of the lex Acilia2 the praedes are given or, in default, bonorum possessio takes place after the condemnation but before the assessment of damages, the amount of the security being fixed by a majority of the consilium. But this must have been a very imperfect security, because based on very intangible grounds, and passages of Cicero seem to show that in his time these proceedings might take place after the litis aestimatio3. Even, however, if the person convicted did not furnish security, his imprisonment, which had been sometimes employed in such trials when conducted before the people *, does

1 Cic. pro Cluent. 41, 116 'hoc quotidie fieri videmus ut, reo damnato de pecuniis repetundis, ad quos pervenisse pecunias in litibus aestimandis statutum sit, eos idem iudices absolvant.' For a case of concurrence of the charges quo ea pecunia pervenit and repetundarum see Cic. ad Fam. viii. 8, 3 (Servilius after being acquitted by an equality of votes of a share in the spoils of App. Claudius) 'neque absolutus neque damnatus (i. e. morally, on the ground of the equality of votes). . . de repetundis saucius Pilio tradetur.'

2 1.57.

pro Rab. Post. 4, 8 'Sunt lites aestimatae A. Gabinio, nec praedes dati, nec ex bonis populo universa pecunia exacta est'; 13, 37'si aut praedes dedisset Gabinius aut tantum ex eius bonis, quanta summa litium fuisset, populus recepisset.'

4 Liv. xxxviii. 58.

not seem to have been ordered by the court. In this BOOK II. matter the analogy of criminal rather than of civil justice was followed, and, as in the case of conviction to a definite poena, the debtor was free to seek a place of exile, in which he had probably already deposited the greater part of his stolen goods'. This was invariably the case when the assessment was, or had been predicted by the offender to be, in the phrase of the time, of 'capital' amount 2; but, when he had given no praedes and his property, or any portion of it, could be realized at Rome, the state took possession of his goods by the ordinary method of bonorum possessio and proscriptio3. The method of satisfying the debt which is enjoined by the lex Acilia, a system probably current in Cicero's day, was the same as that following pecuniary condemnation in the earlier period. The quaestor enters into possession at the bidding of the praetor or other president of the court, and it is his business to proscribe and sell the goods. He then, whether he has got the money through praedes or by bonorum venditio, pays the damages to the successful plaintiffs, the money being no longer owed to them by the person convicted but by the state.

execution.

one The death and penalty

for parri

It is needless to remark that the severest form of Personal personal execution, the deprivation of life, was still of the penalties inflicted by the iudicia populi, could, when pronounced by such courts, be avoided only cidium. by exile. The only crime taken cognizance of by the iudicia publica, for which the survival of this penalty

'Suet. Caes. 42 'cum locupletes eo facilius scelere se obligarent quod integris patrimoniis exulabant.'

lis capitis (Cic. pro Cluent. 41, 116).

3 Cic. pro Rab. Post. 4, 8; 13, 37; see p. 504, note 3. Liv. xxxviii. 60; see p. 282.

+ 11. 61-9.

In the case of the iudex chosen from the jury (p. 431), if this presidency was known in cases involving a litis aestimatio, bankruptcy proceedings, as a function of the imperium, probably belonged to the praetor.

7 Cf. Cic. on p. 504, note 3, 'pecunia exacta est.'

BOOK II.

Punishments

for other

crimes; generally

interdiction.

can be proved, is that of parricidium. There can be no question that, under the Cornelian law, the ancient death penalty, the punishment by the culeus, was retained, and all attempts to explain Cicero's language in some other sense have proved fruitless. It is probable that Sulla, like Pompeius afterwards, distinguished different degrees of parricide, and that it was only the worst guilt that was visited by this prehistoric penalty; other cases were met by interdiction, the normal punishment inflicted by the Cornelian law of murder 2. We know that, according to the lex Pompeia, the murder of a direct relation in the ascending line (parents and grandparents) might be visited with the old capital punishment; in all other cases the penalty was interdiction. It is probable that this unique survival of the death penalty in laws establishing quaestiones was rendered nugatory by the provision that it should only be inflicted on the confessed parricide *. Amongst other crimes of an ordinary and non-political character, arson and murder were in imperial times punished by interdiction 5, and as the punishment was capital in the Ciceronian period, while there is no reference to

1 Cic. pro Rosc. Amer. 11, 30 'hanc conditionem misero ferunt, ut optet utrum malit cervices Roscio dare an insutus in culeum per summum dedecus vitam amittere.' In cc. 25 and 26 he dwells on the nature of the penalty; cf. Auct. ad Herenn. i. 13, 23; de Inv. ii. 50, 149. From ad Q. fr. i. 2, 2, 5 we learn that the punishment was inflicted by Q. Cicero on two Mysians at Smyrna.

The penalty under both laws was the same; Dig. 48, 9, 1 'Lege Pompeia de parricidiis cavetur, si quis patrem, matrem . . . occiderit... ut poena ea teneatur quae est legis Corneliae de sicariis.'

3 Dig. 48, 9, 1 and 9.

Suet. Aug. 33 'manifesti parricidii reum (ne culeo insueretur, quod non nisi confessi afficiuntur hac poena) ita fertur interrogasse: "Certe patrem tuum non occidisti?"'

• Collatio, xii. 5. Cf. i. 2, where deportation is the equivalent of this penalty.

• 'DEQUE EIUS Capite quaerito' (Cornelian law in Cic. pro Cluent. 54, 148). The praeiudicium in Cic. de Inv. ii. 20, 59 (see p. 180, note 2) perhaps refers to a concurrence of the actio iniuriarum with a prosecution for attempted murder (Mommsen, Strafr. p. 630) or for vis (see p. 233), or, perhaps, for some kind of iniuria which was punished capitally under the Cornelian law.