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Some Remarks on the Structure and Survival of the Quaestio De Adulteriis

Published online by Cambridge University Press:  08 May 2015

R.A. Bauman
R.A. Bauman*
Affiliation:
University of Sydney
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Extract

The quaestiones perpetuae, although added to, refurbished and furnished with a definitive procedural code by Augustus, did not fare very well in the Principate or in the sources. Our view is constantly obscured by the senate and the emperor’s court, and by the praefectus urbi whenever he chooses to put in an appearance. The broad outlines are reasonably clear: Augustus sent down to the Principate a fully-formed and fully-functioning system of jury-courts, but by some time in the third century the whole system had collapsed and the bulk of the jurisdiction previously exercised by the quaestiones perpetuae was in the hands of the praefectus urbi, with a small but politically important minority of trials continuing to be brought in the senate or in the emperor’s court, as hitherto. So much for the general picture. There is less certainty about the various stages in the decline. It is clear that the problem cannot be considered as an organic whole, for different courts undoubtedly decayed at different times. Some courts, notably the quaestio maiestatis and the quaestio repetundarum, were not called upon to handle a large volume of day-to-day work at any time, and least of all when the senate and the emperor began making inroads into their spheres of competence. There is therefore no reason to assume a long currency for either of these courts, and the same can be said of the quaestio de ambitu, the quaestio de annona and the quaestio de plagiariis.

Type
Research Article
Information
Antichthon , Volume 2 , 1968 , pp. 68 - 93
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1996

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References

1 On the special leges see Arangio-Ruiz, V., ‘La Legislazione’, Augustus (Rome, 1938), pp. 101 ff.;Google ScholarKunkel, W., ‘Quaestio’, RE 24 720 ff. at 769 ff.Google Scholar On the lex Julia iudiciorum publkorum see Girard, , ‘Les Leges Iuliae Iudiciorum’, ZSS 34 (1913), 295 ff.Google Scholar

2 Dig. xlviii 4–15.

3 Mommsen, , Römisches Strafrecht (Leipzig, 1899), p. 273; Kunkel, op. cit., 776 ffGoogle Scholar

4 See particularly Volkraann, H., Zur Rechtsprechung im Principal des Augustus (Munich, 1935), passim;Google ScholarKelly, J.M., Princeps ludex (Weimar, 1957), passim;Google Scholar Bleicken, J., Senatsgericht u. Kaisergericht (Göttingen, 1962), passim.Google Scholar

5 Cf. Kunkel, op. cit., 776.

6 Kunkel, loc. cit. Cf. Dig. xlviii 14.rpr.

7 If the lex Julia de annona was administered by a praefectus annonae from its inception (Mommsen, , Römisches Staatsrecht3 (Leipzig, 1887), Vol. 2, p. 1041),Google Scholar there is no reason except its inclusion in Dig. xlviii 4–15 to assume its concurrent administration by a praetor as well. The praefectus annonae may have had his own jury-panel, but there is no evidence for it. See also Kunkel, op. cit., 771.

8 There is very little to be said about the (late Republican) lex Fabia de plagiariis. For whatever can be said see Mommsen, Strafr. pp. 780 ff.; Greenidge, A.H.J., The Legal Procedure of Cicero’s Time (Oxford, 1901), p. 426.Google Scholar

9 The lex Pompeia de parricidiis applied the penalty of the lex Cornelia de sicariis and was therefore referred to the quaestio de sicariis. See Kunkel, op. cit., 746. See also p. 78. The data relating to the lex Pompeia will be incorporated herein with that relating to the lex Cornelia.

10 There was probably a single quaestio de vi despite Dig. xlviii 6, 7. Cf. Kunkel, op. cit., 771. See however p. 78.

11 Mommsen, Strafr. p. 220, n. 5, postulates non-capital quaestiones at this time. Kunkel, op. cit., 776 ff., assumes the early decay of the political quaestiones but not of those concerned with common law crimes. He argues in particular, op. cit., 779, for a Severan quaestio de adulteriis.

12 ‘Adultery Trials and the Survival of the Quaestiones in the Severan Age’, JRS Ivii (1967), 56 ff.

13 I hope to show on another occasion that at least one other quaestio was known in the Severan period.

14 Dig. xlviii 2.3pr.; Dio Ixxvi 16.4.

15 Dig. xlviii 2.3pr.

16 Op. cit., 56.

17 On which see Bleicken, op. cit., 171 ff.

18 Bleicken, op. cit., 176, believes that the proconsul was expressly included in the judiciary law.

19 Op. cit., 56 f.

20 Dig. xlviii 8.2. Schiller, , ‘Jurists and Praefects of Rome’, RIDA 3 (1949), 319 ff. at 341,Google Scholar is not certain of the authenticity of this passage and reports the consensus which sees no connection between the passage and the crime of adultery. See also my n. 30.

21 Garnsey, op. cit., 57, advances two supplementary reasons for preferring Ulpian: (i) the fact that ‘he was not referring to any law or quoting from it’—the suggestion apparently being that Ulpian is unreliable when he quotes from a lex and reliable when he does not; and (ii) the fact that ‘his express purpose was to persuade fathers to give adulterous sons a hearing before the proper magistrate’—a point sufficiently answered by Ulpian himself, see below, n. 30.

22 Op. cit, 56.

23 Dig. i 16.4/w., 4.1, 4.2, 4.3, 4.5 (bis), 4.6, 6.1, 6.2, 6.3 (bis), 7.2, 9.1, 9.2, 9.3, lopr., 10.1; i 6.2; xxvi 5.12; xxvii 10.8; xlviii 2.6, 3.1, 13.7, 16.14, 19.6.1.

24 Dig.i 16.9.6; iv 4.42; xxvii 9.11; 1 2.3.2; v i.7g (bis); xi 4.3 (bis); i 18.13.1; x ' v " ' 2.7.1, 19.5/ir., 8.4.Q, 18.1.27; i 6.2; xlvii 20.3; xxxvii 14.1; xlvii 19.2 (bis); Coll. 14.3 (quat.); Dig. xlvii 11.8, 11.9; xlviii 3.4 (bis), 19.6/ir., 19.6.2, 19.8.1, 19.8.9, 22.6 (bis), 22.7.1, 22.7.10 (bis), 22.7.14 (bis), 22.7.17, 22.9, 19.9/w., 19.9.2, 19.9.3, 20.6 (ter.).

25 Mommsen, , Slaatsr., Vol. 2, p. 240,Google Scholar n. 2. If popular usage is relevant, Suet. Dom. 8.2 attests praeses earlier than any possible terminal date for the quaestio de adulteriis.

26 Schulz, F., History of Roman Legal Science (Oxford, 1946), p. 245,Google Scholar condemns all references to praeses in De officio proconsulis. See also n. 37.

27 This title includes seventeen of the proconsules attested for De off. proc. Fragments in this title from other works use proconsul with equal consistency: Dig. i 16.1, 2pr., 2.1, 5, 11 13, 14, 15. The only praeses, i i6.9.6=Ulp. De off. proc. i, designates provincial officials in general. Cf. Dig. i 18.1.

28 There are no proconsuls in Dig. i 18 de off. praesidis except, understandably, in i 18.1.

29 Dig. i 16.2–7, 9–13.

30 Dig. i 16.9.3: ‘de piano autem proconsul potest expedire haec: … comminari etiam et terrere filium a patre oblatum’.

31 So Bleicken, op. cit., 176. Cf. Garnsey, op. cit., 56.

32 Thus PS v 29.1: ‘his antea in perpctuum aqua et igni interdicebatur: nunc vero humiliores bestiis obiciuntur vel vivi exuruntur, honestiores capite puniuntur’. Cf. ib. v 23.1, v 30b. 1.

33 Dig. xlviii 2.3pr.

34 Dig. xlviii 2.3.1.

35 It was not just a question of including the magistrate’s name in the heading to the document. The essential part of the indictment had to read ‘X declared before praetor Y that …’. This was no less mandatory than the issuance of a modern indictment in the name of the head of state.

36 Coll. 4.2.1.

37 Dig. xlviii 5,.28pr.=De adult, iii.

38 When adultery did involve the interests of the state or the emperor it was withdrawn from the regular procedure. For the position under Augustus see Bauman, , The Crimen Maiestatis in the Roman Republic and Augustan Principate (Johannesburg, 1967), pp. 198 ff.Google Scholar For the position thereafter see Bleicken, op. cit., 53 ff. When Trajan condemned Gallita in his own tribunal he made it clear that this was because of special circumstances: the co-respondent was a centurion, and the husband had been unwilling to prosecute the wife. But the case was not to be used as a precedent: ‘Caesar et nomen centurionis et commemorationem disciplinae militaris sententiae adiecit, ne omnes eius modi causas revocare ad se videretur.’ Plin. Ep. vi 31.4 ff. As Sherwin-White, A.N. points out, The Letters of Pliny (Oxford, 1966), p. 393,Google Scholar the alternative to the emperor’s court in this case was not the quaestio but a provincial governor who had referred the matter to Trajan.

39 The lex gave a sixty days’ preferential right of accusation to the father and the husband. Kunkel, op. cit., 770.

40 CTh ix 7.2.

41 Cf. Vitucci, G., Ricerche sulla Praefectura Urbi in Eta Imperiale (Rome, 1956), pp. 69 f.Google Scholar, 73 f.; Schiller, op. cit., 323. Kunkel, op. cit., 777, prefers to ascribe the decline to inherent vice. The quaestiones were undoubtedly vicious, but they were all equally so, which means that their non-simultaneous disappearance is probably due, at least in part, to other factors. In any event some of their vices—notably the bribery of iudices and deliberate delays by advocates—attacked the praefectus urbi as well. CTh viii 15.5pr., 6.1; ix 26.1, 2; ix 37.1; x 15.1, 3; xi 32.1, 33.1.

42 Three imperial verdicts have been counted as rescripts: Dig. xlviii 5.6, 10.4, 13.12.1. The exclusion of xlviii 5.6 would further strengthen the point made in the text.

43 Cf. Vitucci, op. cit., 70 ff. See Schiller, op. cit, 334 ff., for the proof that rules established in the urban prefect’s office were extended by the jurists to the provincial governors. The converse can safely be inferred, in the sense that a rescript directed to a governor reasonably presupposes the prior issue of a similar rescript to the prefect.

44 Papinian, De adulteriis lib. ii, De adulteriis lib. sing.; Paul, De adulteriis lib. iii, De adulteriis lib. sing.; Ulpian, Ad legem Iuliam de adulteriis lib. v (abbreviated in this paper to De adulteriis). Schulz, op. cit., 188, is suspicious of the libri singulares. If these were post-classical epitomes it is strange that the publishers did not turn their attention to Ulpian. But perhaps they preferred a second edition of the major treatise on adultery. That there was a second edition is attested inter alia by the lucky escape of iudices in Dig. xlviii 5.28pr. Cf. n. 37.

45 Maecian, De iudiciis publicis lib. xiv; Venuleius, De iud. pub. lib. iii; Marcian, De iud. pub. lib. ii; Macer, De iud. pub. lib. ii; Paul, De iud. pub. lib. sing.

46 Lenel 3181–2236.

47 The absence of the lex Julia de adulteriis from De officio proconsulis may be due to the compilers rather than to Ulpian. But this would not affect the point made in the text.

48 Except that the line count is based on Lenel.

49 The material on which Table III is based includes the crimina extraordinaria commented on by Ulpian in De off. proc: Lenel 2215–2224, 2226–2229, 2233–2235. If this material is excluded from the reckoning the discrepancy between De adulteriis and De officio proconsulis is even more striking, for the latter work then has the following density quotients: rescriptal 7.87; responsa .18.

50 Cf. Schulz, op. cit., 140.

51 This is one of the fruits of Honorcé’s ‘The Severan lawyers: a preliminary survey’, SDHJ 28 (1962), 162 ff.Google Scholar

52 Dig. xlviii 5.1: ‘haec lex lata est a divo Augusto’, which makes the adultery law the only lex Julia (except repetundarum) with impeccable credentials. Is this because the Severan jurists did not know the authors of the rest, or because there had been so much rescriptal activity that they no longer cared?

53 Lenel 1938, 1941pr., 1941.4, 1945.5, 1949pr., 1949.2. 1959.1, 1968.

54 ‘haec verba legis’; ‘quod ait lex’; ‘quod adicitur’; ‘ita cavetur’; ‘adicitur’; ‘lex nominavit’; ‘lex ita locutus est’. These palpable quotation marks guarantee the law’s continued currency.

55 Lenel 1945pr.: ‘capite quinto legis luliae ita cavetur’. Cf. Lenel 1949pr., 1961.16.

56 Lenel 1941pr.: ‘quod ait lex … non otisoum videtur’; 1941.4: ‘quod ait lex … sic erit accipiendum’; 1945.1: ‘ego arbitror’; 1945.4: ‘et putem’; 1950: ‘cut adsentiendum puto’; 1955: ‘ego sufficere credo’; 1975: ‘quod puto esse verius’.

57 Lenel 1963pr.: ‘prospexit legis lator’; 1972.6: ‘hoc … observari legislator voluit … et melius est dicere … ‘.

58 The fragments from Paul, De adult, lib. iii (Lenel 6–17), exhibit a rescript of Hadrian ordering the postponement of an adultery charge because of a pending civil action, and an edict of Augustus. Paul, De adult, lib. sing. (Lenel 18–22), has three responsa and four rescripts, one of which is Domitian‘s general rescript deferiis et abolendis reis. Paul, De iud. pub. lib. sing. (Lenel 1264–1268), has two rescripts and two responsa. Papinian, De adult, lib. ii (Lenel 1–18), has six rescripts including one attested by a nota of Marcian. There are no named responsa of other jurists but two of Papinian’s own. Papinian, De adult, lib. sing. (Lenel 19–27), is made up of his own responsa. There are no rescripts.

59 Except that divorce was a condition precedent to an accusation. Dig. xlviii 5.12.10.

60 Tac. Ann. iii 24.3.

61 For some of the problems see Thomas, , ‘Accusatio Adulterii’, IURA 7 (1961), 65 ff.Google Scholar

62 18 B.C.: Mommsen, Strafr., p. 691; Mayer-Maly, Kl.P. i 79. 18–17 B.C.: Arangio-Ruiz, op. cit., p. 134. 18–16 B.C.: Girard, op. cit., 306 f.

63 Augustus has perhaps been credited with an innovation instead of a reform because of the lack of particularity in Paul’s ‘primum caput legis prioribus legibus pluribus obrogat’ (Paul, De adult, lib. sing. =Coll. 4.2.2.). Cf. Mayer-Maly, Kl.P. i 79. In any case obrogat ( = tacit repeal: Krüger, Geschichte, p. 22) is curious. Why was there only an implied revocation of the earlier laws? Suet. Aug. 34.1 says that Augustus’ reform of the adultery law was not as thoroughgoing as his reform of the lex de maritandis ordinibus. Kunkel, Untersuchmgen zur Entwicklung des romischen Kriminalverfahrens in vorsullanischer Zeit (Munich, 1962), pp. 121 ff., postulates a iudicium privatum for adultery prior to Augustus. This may help to explain obrogat: there was no express repeal because there was no quaestio perpetua under the prioribus legibus pluribus; but there was a tacit repeal because the private proceedings fell away with the passage of the lex Julia. It may also explain why Suetonius thought the adultery law a less drastic revision than the marriage ordinance. From his point of view there had not been a significant interference with the substantive rules developed by the indicia privata de adulteriis, but only with the procedure.

64 For c. 27 B.C. as the date of this investigation see Bauman, Historia xv (1966), 420 ff. at 428.

65 Suet. Aug. 32.2.

66 Ibid.: ‘(diuturnorum reorum) ex quorum sordibus nihil aliud quam voluptas inimicis quaereretur’.

67 Ibid.

68 26 B.C. according to Mommsen, Staatsr. Vol. ii, p. 1059, n. 3.

69 Tac. Ann. vi 11.3.

70 For example, a number of the acts specified in Dig. xlviii 6.3,5; xlviii 7.2.

71 On the (supposedly) ad hoc character of the urban prefecture until the appointment of L. Calpurnius Piso in A.D. 13 see Mommsen, Staatsr., Vol. ii, pp. 1059 f.; Vitucci, op. cit., pp. 28 ff. It is not certain that lengthy tenures of office prior to Piso should be excluded quite so readily. If there was—as we must assume—an urgent need for someone qui coerceret, why should the resignation of Valerius Messalla Corvinus after a few days in office (Tac. Ann. vi 11.4) have altered the position? (Does Tacitus’ quasi nescius exercendi mean—pace Euseb.-Hieron. Chron. p. 164 H—that Corvinus found the case-load excessive?) It is not impossible that our view (and that of Tacitus, loc. cit.) has been so obscured by Corvinus’ dramatic resignation that we have lost sight of his immediate successor. At any rate H. Furneaux, The Annals of Tacitus, Vol. i, 2nd ed. (Oxford, 1896), p. 609, n. 6, did not exclude the possibility that Taurus Statilius (Tac. Ann. vi 11.5) held the prefecture from the resignation of Corvinus. Indeed this may be Tacitus’ exact meaning: ‘primus Messalla Corvinus … quasi nescius exercendi; turn Taurus Statilius, quamquam provecta aetate, egregie toleravit’. Does this mean that the case-load did not overwhelm Statilius? When Tacitus continues (vi 11.6) with ‘dein Piso … ’ he is surely attesting the third prefect and not, as has been generally assumed, the first permanent appointment.

72 The fact that the urban prefect was to coerce turbulent citizens may or may not lend added weight to Kunkel’s downgrading of provocatio, Untersuchungen, passim, but does not detract from the prefect’s duty to apply the substantive provisions of the lex de vi, however much he may have been liberated from the procedural and penal rules. Cf. Kunkel, Untersuchungen, p. 77.

73 Dig. xlviii 8. lpr. The ‘cuius dolo malo incendium factum erit’ of the lex Cornelia de sicariis should be compared with the ‘qui ex incendio rapuerit aliquid’ and the ‘qui in incendio cum gladio aut telo rapiendi causa fuit’ of the lex Julia de vi (Dig. xlviii 6.3.3, 4). The instigator of arson was held under the lex de sicariis, but those who profited by the fire fell under the lex de vi. The dividing line is not always as clear as this. There was no juristic difference, for example, between ‘qui furti faciendi causa cum telo ambulaverit’ (de sicariis) and ‘qui in incendio cum gladio aut telo rapiendi causa fuit’ (de vi). It may be argued that ambulaverit was a different criterion from fuit, but in that case what happened to the armed man who perambulated at the scene of a fire ? See also Kunkel, Untersuchungen, pp. 64 f., 73 f., 91 f.

74 Staatsr. Vol. i, pp. 384, 404 f.; Vol. ii, pp. 223, n. 4, 537, 583 ff., 665 f. Strafr. pp. 421 f., 431, n.5.

75 Not to be confused with the iudex quaestionis of the quaestio de sicariis, although of course he was also a quaesitor in the general sense. See Staatsr. Vol. ii, pp. 586 ff. See also below.

76 Greenidge, op. cit., pp. 429 ff. and particularly 432: ‘It was inevitable that, in a court in which so many concurrent cases would have to be tried, the praetor should have this assistance.’

77 Although even this lex knew the iudex quei quaerit. Lex Acilia 42. Cf. Greenidge, op. cit., 431.

78 Mommsen, Staatsr. Vol. ii, pp. 586 ff.; Greenidge, op. cit., 431 ff.; Kunkel, ‘Quaestio’, 746.

79 ‘Quaestio’, 746.

80 Dig. xlviii 9.1.

81 Bauman, Crimen Maiestatis, pp. 95, 97, 263 f.

82 Tac. Dial. 38 is not an obstacle. The fact that Pompey had required trials to be conducted ‘omnia in foro, omnia legibus, omnia apud praetores’ is not raised by the speaker in order to assert the exclusive presidency of the praetor. He is complaining about the limitations which Pompey had imposed on the speaking-time allowed to orators. There is also no doubt an implied criticism of the emperor’s assumption of criminal jurisdiction. Cf. Peterson, W.Taciti Dialogus De Oratoribus (Oxford, 1893), p. 106,Google Scholar n. 8 ff. The prohibition of the delegation of a delegated jurisdiction (n. 140) raises no problem, for the multiple sessions will have been expressly authorized by the lex. In any event the jury-court cases of delegation (above) leave it an open question as to whether any express authorization was needed.

83 Suet. Aug. 32.3.

84 Ibid.; Frag. Vat. 197.

85 Suet. Aug. 32. 2.

86 Ascon. in Scaur, (ed. Giarratano, ), p. 23, 2.Google Scholar 20 f.

87 Sherwin-White, , op. cit., 167, 277.Google ScholarMommsen, , Strafr., p. 428,Google Scholar seems to assume the transmission of a Sullan regulation without amendment by Augustus. If the ‘e lege accusator sex horas … accepisset’ of Pliny Ep. iv 9.9 is a reference to the lex Julia iudiciorum publicorum (cf. Sherwin-White, op. cit., 167), and if the ratio attested by Dio xl 52.2 was maintained, the accuser will have had six hours’ speaking-time and the accused nine.

88 Dig. xlviii 5.42.

89 Dig. ii 12.10.

90 Mommsen, , Strafr., pp. 364Google Scholar f.; Greenidge, , op. cit., 459.Google Scholar

91 Lex Ursonensis, c. 102: ‘ne quis … ante h(oram) I neve post horam XI diei quaerito neve iudicium exerceto’.

92 For some of these see Mommsen, , Strafr., p. 428Google Scholar, n. 3, 434, n. 2.

93 N. 85.

94 Mommsen, , Strafr., p. 222,Google Scholar n. 5; Kunkel, , ‘Quaestio’, 770.Google ScholarGarnsey, , op. cit., 59 f.Google Scholar, does not make it clear whether he believes in a non-capital adultery court when he cites Dig. xlviii 1.8—‘ordo exercendorum publicorum capitalium in usu esse desiit’—as evidence for the disappearance of the quaestio de adulteriis. The suggestion that Paul may have said more in this passage is untenable. The missing words would be something like ‘et non capitalium’, but in that case there was no need to specify the two forms. A simple ‘ordo exercendorum publicorum in usu esse desiit’ would have sufficed. The passage should be taken as it stands, and as such it tacitly attests the survival of non-capital quaestiones at the time when Paul wrote De iudiciis publicis lib. sing. Reference should be made in this connection to Macer, De iud. pub. II=Dig. xlviii 16.15: ‘an ad eos qui hodie de iudiciis publicis extra ordinem cognoscunt senatus consultum pertineat quaeritur’. Macer’s qui de iudiciis publicis extra ordinem cognoscunt is precisely how the total cessation of all the quaestiones should be expressed; it covers both capital and non-capital crimina without prolixity. Macer’s dates fit in quite comfortably with the supposition that when Paul wrote his De iudiciis publicis non-capital quaestiones were still known, but when Macer wrote his work on the same subject they were not. Paul wrote his monographs from 198 onwards and began his Quaestiones after a n . Honoré, op. cit., 225. He will have completed the monographs before starting on Quaestiones, and his De iudiciis publicis will therefore have been written under Septimius. Macer is appreciably later, having done his writing under Caracalla and Alexander. Kunkel, W.Herkunft u. soziale Stellung der römischen Jurisien, 2nd ed. (Weimar, , 1967), p. 256.Google Scholar If his De iudiciis publicis was written under Alexander it corresponds very well with our postulated date (see p. 92) for the disappearance of the quaestio de adulteriis. Garnsey, op. cit., 60, relies heavily on Ulpian, Disputationes viii=Dig. xlviii 19.13 for the cessation of non-capital quaestiones: ‘generaliter placet, in legibus publicorum iudiciorum vel privatorum criminum qui extra ordinem cognoscunt praefecti vel praesides ut eis, qui poenam pecuniariam egentes eludunt, coercitionem extraordinariam inducant’. Disputationes does not enjoy an untarnished reputation. Schulz, op. cit., 240, although dissenting from Beseler’s total rejection of this work, concedes heavy postclassical editing. The instant passage has at least one patent interpolation: vel privatorum criminum. Lenel 417, n. 1. The syntax is awkward, the correct order of thought being ‘generaliter placet ut praefecti… qui in legibus publicorum iudiciorum … extra ordinem cognoscunt, eis qui … eludunt … inducant’. But the fate of the passage depends ultimately on the correctness or otherwise of praefecti vel praesides. If Ulpian used these terms in the corresponding contexts of De adulteriis and De officio proconsulis then he used them in Disputationes. And conversely.

95 PS ii 26.14: ‘adulterii convictas mulieres dimidia parte dotis et tertia parte bonorura ac relegatione in insulam placuit coerceri: adulteris vero viris pari in insulam relegatione dimidiam bonorum partem auferri, dummodo in diversas insulas relegentur’. Kunkel, op. cit., 770, believes that relegation as part of the penalty was not in the lex. He is supported by Tacitus Ann. iii 24.3, and (impliedly) by Suetonius’ assertion, Aug. 34.1 (cf. n. 63) that Augustus amended the lex de maritandis ordinibus more strictly (severius) than the adultery law. Even those who ascribe relegation to the lex agree that it was not necessarily in perpetuum. See for example Sherwin-White, op. cit., 394. This and dummodo in diversas insulas relegentur may authorize the supposition that what was really envisaged was a sharp pecuniary lesson and a cooling-off period.

96 Dig. xlviii 2.3pr.: ‘domo illius, mense illo.’ A modern court would accept proof of an adulterous act on an (unspecified) date within a stated period and at some (unspecified) place within the jurisdiction.

97 See Greenidge, , op. cit., 496 f.,Google Scholar for the possibility of deliberations by the iudices.

98 The extension of the court year to 230 days is attributable to Marcus. SHA Vit. Marc. 1o. 1o. But this will not represent a significant advance over the period previously obtaining. There were forty-nine court days available for Verres’ trial over the period August to October. Mommsen, Strafr., p. 363, n. 2. This gives just under 200 days a year. Thereafter there were extensions by Augustus, Claudius and Galba, nn. 85, 137, 138.

99 See p. 88.

100 See p. 88 and n. 166.

101 On these see Greenidge, op. cit., 459 ff.

102 Aug. 29.I f.

103 Mommsen, , Strafr., p. 360.Google Scholar

104 The quaestio de annona was not busy enough to affect the argument, even if it existed and was an Augustan innovation. The lex Fabia de plagiariis was Republican.

105 The Republican quaestio perpetua for maiestas needs no documentation. See however Bauman, Crimen Maiestatis, passim. That Caesar’s lex Julia repetundarum established a permanent court has not been doubted. Cf. Kunkel, , op. cit., 769.Google Scholar The quaestio de falsis and the quaestio de sicariis were Sullan. Kunkel, although asserting that all the Julian laws except repetundarum were Augustan, op. cit., 769, concedes a permanent Republican predecessor to the lex Julia peculatus, op. cit., 773. It therefore remains to show that the lex Julia de vi and the lex Julia ambitus were—against Kunkel—Caesarian or that they had Republican predecessors under which permanent jury-courts had been established. Mommsen, , Strafr., p. 655Google Scholar and n. 2, was inclined towards Caesar as the author of the lex de vi, but was more interested in equating this lex with the lex Julia iudiciorum publicorum. A Caesarian quaestio perpetua for the crimen de vi is however put beyond reasonable doubt by Cic. Phil, i 7.16: ‘acta Caesaris … quae ille in aes incidit, in quo populi iussa perpetuasque leges esse voluit’. For the proof that Cicero here refers inter alia to Caesar’s lex de vi see Bauman, , op. cit., 155 ff.Google Scholar There certainly was an Augustan lex Julia ambitus—Suet. Aug. 34.I—but the tremendous Republican output of leges on this subject (,Mommsen, Strafr., p. 867)Google Scholar makes a Republican quaestio perpetua reasonably probable.

106 Sen. De ira ii 9.3 f.

107 Lanciani, R.A.The Ruins & Excavations of Ancient Rome (London, 1897), p. 238.Google Scholar

108 Dio lv 10.16.

109 Dig. xlviii 5.30.5 ff.

110 Mommsen, , Strafr., p. 489,Google Scholar n. 1, and citing Dig. xlviii 5.39.6, believed that there was no prescription of incest although it was indictable under the lex Julia de adulteriis. The possibility that it was only the crimen adulterii proper to which the prescriptive rule was applied, and that this was done in 2 B.C., is supported by the fact that it was only by way of his own or another’s responsum that Ulpian was able to postulate a limitation of actions on all charges under the lex. Dig. xlviii 5.30.6.

111 Dig. xlviii 13.9.

112 Aug. 32.3.

113 Mommsen, , Staatsr., Vol. 3, p. 528, n. 1.Google Scholar

114 Mommsen, , loc. cit.; Strafr., p. 211, n. 1.Google Scholar

115 Suet. Gai. 16.2; Pliny, , NH 33, 33.Google Scholar

116 Op. cit., pp. 450, 444, n. 4.

117 Kübler’s bald assertion that ‘Augustus … bildete … eine vierte D. für Bagatellsachen’, RE iv 2317, is repeated by Neumann, Kl.P. 1 1416 f.Google Scholar

118 Op. cit., p. 773.

119 Ehrenberg & Jones, 94a 11. 13–14.

120 Ibid., 11. 19–21.

121 Principe e Magistrati Repubblicani (1953), p. 27.

122 Both Mommsen and Kunkel take the second and third decuries as equestrian.

123 I am indebted to Professor Kathleen M. T. Atkinson for drawing my attention to this and other difficulties and for much helpful discussion of the paper as a whole.

124 Suet. Aug. 32.3.

125 The fourth decury had of course been in existence for some time when the Tabula Hebana was inscribed in A.D. 19–20.

126 Staatsr., Vol. iii, p. 535 and n. 5.

127 Gai. 16.2.

128 NH xxxiii 30.

129 NH xxxiii 33.

130 These difficulties are not noticed by Mommsen, , Staatsr., Vol. 3, pp. 514 ff.,Google Scholar or by Stein, A.Der römischt Bitter stand (Munich, 1927).Google Scholar

131 Suet. Tib. 41.

132 Dio lix 9.5.

133 There was nothing new in the idea that jurisdiction depended on penalty. The sources believed that provocatio and therefore trial apud populum was possible in pecuniary cases only if the penalty exceeded the multa maxima. Below this limit jurisdiction presumably rested with the tribunes. There was also a different jurisdiction of the comitia, depending on whether the penalty was capital or non-capital. See Bauman, , Crimen Maiestatis, pp. 18 ff.Google Scholar Whether or not this is a true picture of criminal justice prior to the jury-court system (on which see Kunkel, Untersuchungen, passim), it is important as showing the trends in Roman legal thinking.

134 Caligula’s release of the man who had been an awaiting-trial prisoner for seven years— Dio lix 6.2 f.—is tempting, but Dio seems to be thinking of a political amnesty rather than administrative action. Cf. Suet. Gai. 15.4.

135 Suet. Vitell. 8.1 says that Vitellius reis sordes dempsit, but this appears to have been merely one of the inducements that he held out in Germany before the death of Galba.

136 Suet. Vesp. 10: ‘litium series ubique maiorem in modum excreverant, manentibus antiquis intercapedine iuris dictionis, accedentibus novis ex condicione tumultuque temporum’. Litium does not of course require the exclusion of criminal cases. Cic. Pro Cluent. 41.116; Dig. xliv 7.33, xlviii 2.20; CJ ix 44.3; and elsewhere. A general backlog in all criminal and civil courts is also required by ubique. The only difficulty is that the measures attested by Suetonius do not include the quaestiones: special judges were chosen by lot to restore rapta bello and to adjudicate extra ordinem in the Centumviral Court. (Suetonius’ ‘iudicia centumviralia quibus peragendis vix suffectura litigatorum videbatur aetas’ is another example of the caustic wit of the investigators in these matters. Cf. n. 66.)

137 Suet. Claud. 23.1.

138 Suet. Galb. 14.3.

139 Quint. Declam. 319 (adullera venefica), p. 253 Ritter: ‘filium ab hac occisum esse dico: quamdiu, iudices, sinetis hoc esse dubium ? vivit interim in civitate, inter nos est femina inter prodigia numeranda, implet numerum civitatis: et vivit, dum bis rea sit; praesertim in hac civitate, in qua iudicia diu differuntur: de me utique mirari non potestis, si omnes moras odi, omnes dilationes’.

140 Plin. Ep. v 9.3. It is at once apparent from legibus that there had recently been some sort of reform. Quintilian had been able to say that indictments for more than one offence could not be brought in the iudicia publico, ‘quoniam praetor certa lege sortitur’. Inst. Orat. iii 10.1. But Nepos’ jurisdiction went back to certae leges.

141 Strafr., p. 205, n. 1. See n. 147.

142 Hammond, M.The Antonine Monarchy (Rome, 1959), p. 309, n. 30.Google Scholar

143 Op. cit., 774 f.

144 This charge offered a home to all wrongful acts not referable to any of the special leges: ‘stellionatum autem obici posse his qui dolo quid fecerunt, sciendum est, scilicet si aliud crimen non sit quod obiciatur. … ubicumque igitur titulus criminis deficit, illic stellionatus obiciemus’. Dig. xlvii 20.3.1. There was no quaestio de stellionatu. Dig. xlvii 20.1.

145 Op. cit., 336.

146 ZSS(RA) xlviii (1928), 505.

147 Plin. Ep. v g.3. Cf. v 9.4. Mommsen made Nepos the praetor repetundarum because the acceptance of fees by counsel was an illegal receipt of money and therefore fell under the lex repetundarum. But this is to ignore legibus. There is nothing in the sources to indicate that the lex Julia repetundarum was supplemented by other leges. On the position contended for in the text Nepos will have administered the extortion law as well as all the other special leges. His edict will therefore have been well within his competence.

148 Plin. Ep. v 9.5.

149 Ibid, v 9.6.

150 Ibid, v 13.8. Cf. Sherwin-White, op. cit., 337.

151 Sherwin-White, op. cit., 336 f.

152 Plin. Ep. v 9.6.

153 On the prestige of the Centumviral Court see Sherwin-White, op. cit., 399, 506.

154 It will be convenient to retain this term despite the new unified administration.

155 See for example Hammond, op. cit., 417 f.

156 There is some evidence of cognitores who were not held in great esteem. See Kunkel, , Herkunft, pp. 330 f. and nn. 693, 694.Google Scholar

157 The phrase is Mommsen’s, Ges. Schr. Vol. iii, p. 123. The freedman who drafted wills for twenty-five years without the assistance of a jurisconsult (ILS 7750) may not have been a pleader (so Schulz, op. cit., 110 , n. I, against Mommsen, loc. cit.), but if the jurisconsults had their humble counterparts so did the patroni.

158 The disappearance of the capital quaestiones under Marcus is postulated by Mommsen, Strafr., p. 220 and n. 5, citing SHA Vit. Marc. 24.2: ‘capitales causas hominum honestiorum ipse cognovit et quidem summa aequitate, ita ut praetorem reprehenderet, qui cito (!) reorum causas audierat, iuberetque ilium iterum cognoscere’. Kunkel, op. cit., 779, takes the passage to mean simply that Marcus did not delegate cases brought before his court (ipse cognovit). The over-diligent praetor presided over capital cases. Kunkel, loc. cit. Something can also be made of SHA Vit. Marc. 10.6: when a senator was due to be tried on a capital charge Marcus would first examine the matter in private and only after that would he bring the case to public trial (atque ita in publicum prodsret); the equites were excluded from the private investigation. Does this not mean that the iudices from whom the jury-panel might be drawn should not be placed in a position to prejudge the issue?

159 Garnsey, op. cit., 57.

160 Some of the passages on which Garnsey relies, op. cit., 57 f., may be briefly dealt with here. Papinian, Dig. i 21.Ipr., puts two cases of publici iudicii exercitio: exercitio lege delegata and exercitio senatus consulto delegata. The first case requires the existence in the Severan period of statutory rules for the assignment of magistrates to judicial functions, and Papinian has in mind the adultery law: ‘veluti legis Iuliae de adulteriis et si quae sunt aliae similes’. An exercitio lege lulia de adulteriis delegata means the assignment of a praetor to the quaestio de adulteriis (or, at this time, to the unified quaestio). Too much weight should not be given to specialiter in ‘quaecumque… possunt’. The contrast is not between ad hoc and general appointments, but between those who need a special delegation in order to exercise jurisdiction at all, and those whose office ipso iure gives it to them. A praetor held some of his powers iure magistratus, but his administration of a quaestio depended on an allotment to him lege. The second case, exercitio senatus consulto delegata, is at best an alternative to the exercitio lege delegata, but even this needs to be qualified in view of the illustration on which Papinian relies: ‘et si a familia dominus occisus esse dicetur, cognitionem praetor, quem ex senatus consulto habet, mandare non poterit’. This, as Mommsen realized, Strafr., p. 649, n. 6, is simply a reference to the jurisdiction introduced by the S.C. Silanianum of A.D. 10. If the S.C. did not terminate the adultery court’s career in the early first century there is no reason to think that it did so in the second. The next passage is Dig. xlviii 5.30.5. The undatable rescript attested by this passage is unique among the rescripts cited by Ulpian in De adulteriis or De officio proconsulis: it omits the name of its author; it is addressed to two consuls; and its language is unusual (quod significari videtur rescripto). Even in the unlikely event of this being a citation by Ulpian, its direction to two consuls is at least as consistent with their having discharged the normal functions of consuls in senatorial trials—cf. Tac. Ann. i 73.3—as it is with the assignment of an ad hoc jurisdiction to them, a jurisdiction which in any event would not have emanated from the emperor.— Dio lii 20.5 is surely not evidence for the one-trial magistrate. It recommends the appointment of senators and knights to the jury-panels of quaestiones () as hitherto; the only innovation that it suggests is that the praetor should have a vote and this should override the votes of the iudices. If this excerpt from the speech of ‘Maecenas’ reflects the contemporary scene it is very good evidence indeed for the Severan quaestiones.

161 In which case it will simply have followed Republican precedent going back to at least 186 B.C. For a concise account of the special commissions see Greenidge, op. cit., 380 ff. For the S.C. de Dacchanalibus see Bruns, Fontes 6, 160 ff.

162 Dio lxxvi 16.4.

163 N. 108.

164 Dig. xlviii 5.16.7.

165 See however n. 166 below.

166 We cannot of course be sure that Dio was not in similar terms to Iv 10.16 (n. 108). If he was, Septimius will have struck off charges that had become prescribed, and the point here made and the estimate based on it (p. 80) are not well founded. It should however be said that the Augustan decongestion of c. 27 B.C. may very well have been a practical measure having no connection with prescription. Suetonius’ diuturnorum reorum (n. 66 above) is much less specific than his rei qui ante quinquennium proximum pependissent (p. 83). If the only five-year periods of prescription were those laid down for adultery and peculatus (Mommsen, Strafr., pp. 488 f.), and if the former originated not earlier than 18-17 B.C. and the latter with Domitian, then there was no prescriptive rule in c. 27 B.C.

167 Cf. Vitucci, op. cit., 74.

168 The activities disclosed in Dig. i 12, to mention only the largest group attested, will have required a considerable organization under the control of the praefectus urbi.

169 Dig. xlviii 5.14.3, 8.

170 Ulp. loc. cit.: ‘Divi Severus et Antoninus.’ For the date of Caracalla’s elevation as co-Augustus see Hanslik, Kl.P. i 1049.

171 Dig. xlviii 5.28.6, xlviii 2.5.

172 N. 160.

173 See below.

174 There was not conceivably any machinery for the transfer of pending cases to the praefectus urbi. His jurisdiction had, ever since the institution of his office, been concurrent with that of the quaestiones rather than completely substitutionary. There is a parallel to this in the concurrent jurisdiction of the comitia despite the introduction of quaestiones perpetuae, and at an even earlier period in the concurrent jurisdiction of the comitia centuriata and the comitia tributa. See Bauman, Crimen Maiestatis, pp. 27 ff. The locus classicus for the concurrence of the quaestiones and the praefectus urbi is Tac. Ann. xiv 41.2.

175 Dio’s first consulship is dated to ‘before a 211’ by Liebenam, Fasti Consulares Imperii Romani (1909), p. 64; to ‘200 or later’ by Degrassi, Fasti Consolari, p. 56; and to ‘before the death of Severus’ by Schwartz, RE iii 1684. No date is attempted by Stiewe, Kl.P. i 1076.

176 The alternative is to assume the issue of a single comprehensive rescript, but this would not have been in accordance with Roman practice. The one possible exception is Septimius’ well-known rescript to Fabius Cilo. This may very possibly have incorporated general regulations for the praefectura urbis (Schiller, op. cit, 331), but its primary purpose was to define the territorial limits of the urban prefect's jurisdiction (Vitucci, op. cit., 73). In so far as it had a secondary purpose, it contemplated concurrent jurisdiction only—except in certain cases which do not include adultery—and even then only when atrocious conduct warranted a penalty above the statutory limit. Vitucci, op. cit., pp. 73 f. If it was issued in 201–4 (Vitucci, op. cit., 76) or 203 (Schiller, op. cit., 331), it had no connection with the adultery rescript of 199.

177 SHA Vit. Macrin. 13.1: ‘statuisset omnia rescripta veterum principum tollere, ut iure non rescriptis ageretur’.

178 SHA Vit. Alex. 15.1.

179 Ibid. 33.1.

180 SHA Vit. Elagab. 20.3.

181 SHA Vit. Alex. 15.1.

182 Dig. xlviii 5.14.3.

183 Cf. Honoré, op. cit., 207 ff.

184 N. 177.

185 SHA Vit. Elagab. 16.4.

186 SHA Vit. Alex. 26.5; 31.2; Victor, De Caes. 24.6; SHA Vit. Alex. 15.6; 16.1.