No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 27 October 2009
page 225 note 1 Collatio, i. 3: ‘ Capite primo legis Corneliae de sicariis cavetur, ut is praetor judexve quaestionis, cui sorte obvenerit quaestio de sicariis, ejus quod in urbe Roma propiusve mille passus factum sit, uti quaerat cum judicibus, &c.’ They are the old limits of the ‘ provocatio, ’ and must in this case have continued to the end of the Republic. That they had ceased to exist in the early Principate seems shown by the procedure connected with the trial of Piso for the murder of Germanicus. Although the imputed crime had been committed in a province, it is mentioned as a possibility that Piso should be tried before this ‘ quaestio ’ (Tac. Ann. 3, 12, 10). The early limitations of this kind may have been done away with by the ‘ lex Julia de judiciis ordinandis ’ or ‘ judiciorum publicorum. ’
page 226 note 1 E.g. Rudorff, , Röm. Rechtsgesch. i. p. 25Google Scholar; Bethmann-Hollweg, , Civilprozess, ii. pp. 34 and 99Google Scholar; Mommsen, , Staatsrecht, ii. p, 117Google Scholar; Willems, , Le droit public Romain, p, 821.Google Scholar
page 226 note 2 Criminalprocess, p. 161.
page 226 note 3 Staatsrecht, ii. p. 117.
page 227 note 1 Another unhistorical statement of Cicero's in the De legibus has been found by some in the words ‘ magistrates nee oboedientem et noxium civem multa, vinculis, verberibus coerceto ’ (3, 3; Bethmann-Hollweg, Civilprozess, i. p. 95, note 32). But they are immediately qualified by the words which follow: ‘ ni par majorve potestas populusve prohibessit, ad quos provocatio esto.’ The lex Porcia prohibited the scourging of a Roman citizen by a ‘ gravis poena,’ but that it technically submitted the threat of such ‘ coercitio’ to appeal is shown by the fact that the law is classed amongst those regulating the ‘ provocatio.’ Hence Cicero's statement of the extent of the ‘ coercitio’ of a Roman magistrate is correct from a juristic point of view.
page 227 note 2 ‘Quem militem extra ordinem deprehendit (Scipio Africanus), si Romanus esset, vitibus; si extraneus, fustibus cecidit.’ This distinction—whether it refers to a period before or after the supposed extension of the ‘ provocatio ’—is characteristic of the care for the ‘ Roman name’ which formed the safeguard of Romans in the provinces: but it is not a
page 227 note 2 legal distinction. ‘ Fustibus’ here, if read instead of ‘ virgis,’ which has been suggested, cannot refer to the punishment known as the ‘fustuarium.’ For a somewhat similar distinction between the modes of corporal punishment inflicted on a Hellene of Alexandria and on a native Egyptian, see Philo, in Flacc. 10; Mommsen, Provinces, ii. p. 240.
page 228 note 1 
(Plut. C. Gracch. 9).
page 228 note 2 ‘ Leges militares ’ are mentioned in Cio. pro Flacco 32, 77, and Livy 7, 41, but only as conferring rights on the soldiers.
page 228 note 3 Diod. l.c. 
.
page 228 note 4 Diod. l.c. § 4, 
(duci) may refer to any kind of imprisonment, but may be used in the sense in which Pliny employs ‘ duci ’ (ad Traj. 96, 3: ‘ perseverantes duci jussi’). That Diodorus understands the ‘ publicani’ themselves and not merely the ‘ familia publicanorum ’ to have been the objects of Scaevola's sentences is shown by the word τοτων in the story which follows (§ 3): 
. Diodorus implies that the reason why Scaevola anticipated the emancipation of the man was, not that he might be able to execute capital punishment, but that he might be able to inflict the ‘ servile supplicium ’ of crucifixion.
page 229 note 1 Unless relegation from the limits of the province was practised in the Republic. Imprisonment was not recognized as a punishment in Roman criminal law.
page 229 note 2 Rudorff, , Röm. Rechtsg. i. p. 25.Google Scholar
page 229 note 3 , Mommsen, Staatsr. ii. p. 117.Google Scholar
page 229 note 4 C. Gracch. 4: 
.
page 229 note 5 de Repub. 2, 31: ‘ neque vero leges Porciae, quae tres sunt trium Porciorum, ut scitis, quidquam praeter sanctionem attulerunt novi.’
page 229 note 6 Jus provocationis, p. 15, cf. Wöniger, , Provocationsverfahren, p. 302.Google Scholar
page 229 note 7 Staatsrecht, ii. p. 117, n. 2. The earliest writer known to me who drew this deduction from the coin was Labowlaye, Essai sur les lois criminelles Romaines (Paris, 1845), p. 94Google Scholar. He assigns the law to Porcius Laeca, tribune 197 B.C.
page 229 note 8 It is of course possible that the law was protected by its own sanction, which would give rise to a ‘ judicium populi,’ and it might be thought that Cicero was appealing to this in his threat to prosecute Verres before the people. But had there been a definite law with a definite sanction Cicero must have mentioned them.
page 230 note 1 Later the capital penalty of ‘ deportation ’ was introduced for the provinces, but it was, as we should expect, prohibited to governors.
Cf. Cic pro Rabir. 5, 17.
page 230 note 3 Criminalprocess, p. 251.
page 230 note 4 Although Plutarch's narrative is wrong, his representation of the trial as having taken place in the province contains no absurdity from a legal point of view. Antonius had been only a legate in Macedonia, and had he remained in the province either in a private capacity or even as a legate, might have been impeached before the provincial governor. More usually the prosecution would have been lodged at Rome, and in this case even a legate might be summoned back to take his trial, for he was not, like a magistrate, exempt from prosecution. Cf. Cic ad Att. iv. 15, 9.
page 231 note 1 There are only two clear instances for the early Principate, the appeal of St. Paul and Pliny's procedure with regard to those Christians who were citizens (ad Traj. 96, 4). The passage sometimes quoted from Dio Cassius (64, 2) is inconclusive, as it speaks simply of an appeal to the emperor.
page 231 note 2 Suet. Galba, 9: ‘ tutorem, quod pupillum, cui substitutus heres erat, veneno necasset, cruce affixit; implorantique leges et civem Romanum se testificanti, quasi solatio et honore aliquo poenam levaturus, mutari, multoque praeter ceteros altiorem et dealbatam statui crucem jussit.’ The words ‘ imploranti leges’ probably mean ‘ appealing for a legal trial’ (i.e. a trial ‘ lege ’ and not a ‘ cognitio’ of the governor) rather than ‘ calling on the laws (establishing the ‘ provocatio’).
page 231 note 3 Such exceptions are found in the title of the Digest dealing with the lex Cornelia de sicariis et veneficis (Dig. 48, 8), e.g. ‘ transfugas licet, ubicumque inventi fuerint, quasi hostes interficere ’ (§§ 3, 6), a principle which is itself sufficient to prove the maintenance of this military jurisdiction during the Republic: and in § 16 a general prohibition is limited by the clause ‘ nisi forte tumultus aliter sedari non possit.’
page 231 note 4 There was a general prescription to governors to clear their provinces of disreputable characters (Ulpian in Dig. 1, 18, 13: ‘congruit bono et gravi praesidi curare—ut malis hominibus provincia careat eosque conquirat: nam et sacrilegos latrones plagiarios fures conquirere debet et prout quisque deliquerit in eum animadvertere’), but this of itself could hardly have empowered governors to violate the provisions of the ‘ lex Julia.’
page 232 note 1 It was the offence provided for by the ‘ lex Julia de majestate ’ (Dig. 48, 4, 1) in the clause ‘ quove coetus conventusve fiat hominesve ad seditionem convocentur.’
page 232 note 2 Historische Zeitschrift, xxviii. p. 398.
page 232 note 3 The Church in the Roman Empire, p. 209.
page 232 note 4 Ulpian in Dig. 47, 22, 2, ‘ quisquis illicitum collegium usurpaverit, ea poena tenetur, qua tenentur, qui hominibus armatis loca publica vel templa occupasse judicati sunt’ (Dig. 48, 4, 1). That the cases tried by Pliny were technically those of ‘ majestas’ seems also shown by his torture of the ‘ ancilla’ (ad Traj. 96). Slaves could only be tortured against their masters in cases of incest, adultery, and ‘ majestas,’ a principle that would have applied directly to the accused who were ‘ cives,’ and might have been extended to ‘ peregrini.’
page 232 note 5 At Philippi: ‘ They have beaten us publicly, uncondemned, men that are Romans, and have cast us into prison.’ At Jerusalem: ‘Is it lawful for you to scourge a man that is a Roman and uncondemned?’ These passages lend colour to Huschke's restoration of a passage in the lex Julia (Paul. Sent. 5, 26, 1), in which he reads ‘ lege Julia de vi publica damnatur, qui aliqua potestate praeditus civem Romanum—cumve nondum condemnaverit in publica vincula duci jussit’ (for ‘Condemnaverit inve, &c.’).
page 232 note 6 This is probably the sense in which it is treated by Ulpian and Paulus, and is the only possible meaning which it can have as cited in the Digest.