:

The evidence, on the whole, does not seem to prove either of the two conditions maintained by Zumpt. It is rather stronger as regards the confessi than as regards the manifesti. Yet we can hardly believe that confession before a magistrate and his consilium-one not made public in a contio-could be accepted as a final justification for punishment'. It is still less likely that the magistrate could proceed on his own responsibility against a supposed manifestus; for such a power would have endangered all civil liberty. It is true that the tribunes might refuse their auxilium, and the victim of arrest might be imprisoned for life. But an appellable sentence could not be carried out by the magistrate alone. The veto is not the sole sanction of the provocatio; after the Porcian laws the magistrate who violates the right of appeal is guilty of perduellio.

Even in civil procedure we have shown it to be probable that the confession in iure (i.e. before a magistrate) could in later times be recalled by the confessus (p. 253).

APPENDIX IV

ON THE POSITION OF POMPEIUS AS SOLE CONSUL IN 52 B.C.

(Note to p. 391).

ZUMPT in his Criminalrecht (ii. 2, p. 411 ff.) held the view that in the year 52 B. C. Pompeius was the only curule magistrate in the state. He thought that Pompeius was not elected by the people, but nominated by the interrex. No magistrates of the people, he said, are known to have existed for this year except the triumviri capitales (Asc. in Milon. p. 38), and he attempted to show that praetorian offices-those of the presidents of the ordinary criminal courts, whom Asconius calls quaesitores were held by men who were not praetors. One of these, M. Favonius, was certainly not praetor; in the following year (51 B. c.) he vainly contested an office which was probably the praetorship (Cic. ad Fam. viii. 9, 5). A second, M. Considius Nonianus, was to have held Cisalpine Gaul for his province in 49 B. c. (Cic. ad Fam. xvi. 12, 3), and in that year commanded near Capua with the rank of propraetor (Cic. ad Att. viii. II B, 2). Zumpt thought, therefore, that Considius held the praetorship in 50 B. c. But his appointment to one of Caesar's provinces in 49 makes it more likely that he held the praetorship earlier; for the senatus auctoritas, that dealt with these extraordinary praetorian appointments, provided :

'Uti quodque collegium primum praetorum fuisset neque in provincias profecti essent, ita sorte in provincias proficiscerentur' (Cic. ad Fam. viii. 8, 8).

As he could not be propraetor in Gaul, he not unnaturally commanded with that rank in Italy; for after 52 B. c. continuity in the imperium was no longer necessary. We know

nothing about the position held by the other quaesitores mentioned by Asconius, namely, A. Manlius Torquatus and L. Fabius.

As Zumpt held that no curule magistrates were elected, he thought that the general business of the state must have been transacted by delegates appointed by Pompeius.

Against this view must be set the considerations (1) that an examination of the names of the quaesitores proves only that one, Favonius, was not a praetor; (2) that Pompeius himself may have been elected consul by the people, and that the other comitia may have followed; elections had at least been held for the office of IIIvir capitalis; (3) that no authority credits Pompeius with dictatorial power, and that, even if he had it, the dictatorship had never abolished the other magistracies of the people; it had only suspended their independent authority.

ADDITIONAL NOTES

PAGE 13, NOTE 1.

To the instances given in this note should be added Fragmentum Tarentinum (L'Année Épigraphique, 1896, pp. 30 and 31). This municipal law of Tarentum, belonging to the Ciceronian period, furnishes an admirable illustration of the dual method of prosecution in enforcing the obligations of administrative law. In the case of malversation of the public funds it is the magistrate who is to bring the action (eiusque pequniae magistratus, queiquomque in municipio erit, petitio exactioque esto'); in the case of unauthorized destruction of buildings within the town any one may bring the action ('eiusque pequniae [que]i volet petiti[o] esto').

PAGE 58.

In the clause unde tu me ex iure manum consertum vocasti, inde ibi ego te revoco (Cic. pro Mur. 12, 26, unde and inde are probably to be taken in a causal sense, ibi alone having a local signification. The clause will then mean 'On the ground on which you have summoned me ex iure, on that very ground I summon you there in turn.'

PAGE 102.

To the evidences for a remodelling of the constitutions of particular towns should be added the Fragmentum Tarentinum (L'Année Épigraphique, 1896, pp. 30 and 31). If the view gathered from its language is correct, that it dates from a period not long after the lex Iulia of 90 B. c. and is, therefore, some years earlier than the lex Iulia Municipalis (Liebenam, Städteverwaltung, pp. 209, 472), the document shows that the

later type of municipal constitution was fully evolved not long after the social war, although it may only have been applied in isolated cases. Tarentum under this statute has as magistrates IIIIvirei acdilesque elected by a comitia curiata, and its senators are called decuriones. Unfortunately, the fragment contains no direct reference to civil or criminal jurisdiction. It refers only to administrative jurisdiction consequent on the contravention of certain injunctions.

PAGE 115, NOTE 3.

It should have been stated in this note that there is a possibility of the principle recognized in this case being that the iudex should be of the nationality of the defendant. But had this been the case, I think that the lex provinciae, or Cicero, would have stated the principle more clearly-as clearly as it is stated in the passage cited on p. 116, note 1. The mention of iudices without any qualification certainly suggests jurors from the conventus.

PAGE 262, NOTE 4.

Mr. Strachan-Davidson suggests to me that the words of Quintilian eum, cuius cognitio est, onere liberat' suggest the iudex extra ordinem datus of the Principate rather than the iudex ordinarius, cognitio being generally used for magisterial or extraordinary investigation. In this case, the passage has no direct bearing on the iudicia ordinaria or on the Ciceronian period. Even, however, if Quintilian has a definite kind of iudex before his mind's eye, it is questionable whether he means to limit the principle to one kind of jurisdiction. Not much can be gathered from the principle in itself, for the relief of the iudex may be due to his regarding the oath as a substitute for evidence or as conclusive evidence. But, if Quintilian is thinking exclusively of extraordinary jurisdiction, he no doubt regards the oath here as a substitute for evidence (for the iudex extra ordinem acts vice the magistrate). With respect to the operation of the oath in iudicio in ordinary jurisdiction, we have nothing but the scene in the centumviral court, described on pp. 262, 263, on which we can base a conclusion.