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Adultery Trials and the Survival of the Quaestiones in the Severan Age

Published online by Cambridge University Press:  24 September 2012

Peter Garnsey
Peter Garnsey
Affiliation:
University College, Oxford.
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Extract

In the late Republic and early Empire special courts were established by statute, largely by Sulla and Augustus, to deal with the following crimes: treason, adultery, murder, parricide, embezzlement, forgery of wills, public and private violence, corrupt practices in elections, extortion, injury, and interference with the corn-supply. It is commonly thought that at least some of these quaestiones were still active in the Severan period. In a recent article Kunkel granted that the courts for treason, extortion, embezzlement and ambitus (which included bribery at elections) probably lasted for only a short time under the Principate. But he considered that the quaestio or iudicium publicum was nevertheless a living institution in the time of the classical lawyers, and, in particular, that the evidence was good for the continued operation of the quaestio de adulteriis. The case for the existence of the quaestio de adulteriis may well be stronger than the case for the existence of other quaestiones; but it is still weak. In the following pages the thesis will be put forward that all the quaestiones were defunct in the Severan age.

Type
Research Article
Information
The Journal of Roman Studies , Volume 57 , Issue 1-2 , November 1967 , pp. 56 - 60
Copyright
Copyright ©Peter Garnsey 1967. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies

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References

1 This list is based on Dig. 48,1,1 (Macer). See also Kunkel, W., RE 24 (1963), 741 ffGoogle Scholar., 769 ff., s.v. ‘quaestio’. I am indebted to Professor A. H. M. Jones and Mr. F. G. B. Millar for helpful suggestions.

2 ibid. 720 ff., espec. 776 ff.

3 But see Bleicken, J., Senatsgericht und. Kaisergericht (1962), 142 ff.Google ScholarContra, Kunkel, o.c. 779–783. Pace Bleicken and A. N. Sherwin-White (Letters of Pliny, 639–40), I hold that provincial jury-courts. such as they were, did not last long into the first century A.D.

4 Dig. 48,8,2.

5 But ‘praeses’ did not displace ‘proconsul.’

6 By contrast, in Coll. 1,3,1, Ulpian is quoting straight from the lex Cornelia de sicariis. The passage is bad evidence for murder trials in his time.

7 Perhaps the identity of the two magistrates was incidental here also. But whereas it would be odd to say that Paulus was ‘in error,’ it would have been a genuine mistake if Ulpian had named the wrong officials, and a conspicuous one at that.

8 Mommsen, Strafrecht (1899), 220, n.5; cf. 696, n.2. See also Millar, F., A Study of Cassius Dio (1964), 204 ff.Google Scholar

9 Dig. 1,21,1 pr. Delegation of particular cases to magistrates or judges probably began at an early date for crimes such as vis—one court could not cope with all crimes of violence. Indeed, it is conceivable that the comparatively late laws on vis and adultery, ‘et si quae sunt aliae similes,’ did not set up quaestiones perpetuae, but provided for quaestiones ad hoc, and that Papinian cited them in particular for that reason. However, there was certainly a quaestio for vis of some sort, comparable with that for maiestas, according to Cicero, Phil. 1,22. I hope to examine this question at another time.

10 Dig. 48,5,30,5.

11 Dig. 48,2,16. Add, perhaps, SHA, Marc. 10,9.

12 Dio 52,20,5. Contra Mommsen, o.c. 220, n.5. Dio was apparently thinking primarily of criminal jurisdiction, as he specifically excepted homicide from the crimes that the magistrates could punish, and in 52,21,2, crimes which carried a death sentence (if that is the intended meaning; for the two passages clash. Moreover, by my interpretation, there is an inconsistency between Dio 52,20,5 and Dig. 1,21,1 pr.–1, in the matter of homicide cases).

13 Dio 52,21,2.

14 See nn. 10–11 above; and, perhaps, SHA, Marc. 24,2.

15 Tac., , Ann. 14, 40–41Google Scholar (A.D. 61); Dig. 45,1,135,4; 48,10,24.

16 Coll. 14,3,3.

17 Suet., , Aug. 65, 3Google Scholar; 10,14–15; Tac., , Ann. 1, 53Google Scholar (elder Julia); Suet., , Aug. 63, 4Google Scholar; Tac., , Ann. 3, 24Google Scholar, 5 ff.; 4, 71, 6–7; etc. (younger Julia).

18 Suet., Tib. 35.

19 Pl, Ep. 6,31,4.

20 Dig. 24,2,8.

21 Dig. 48,5,2,6. See also ibid. 39,4 (divi fratres, incest). Incest was punished under the same law as adultery (ibid. 40,5).

22 Suet., Aug. 5. The trial was after A.D. 14.

23 Tac., , Ann. 2, 50Google Scholar.

24 ibid. 3,22.

25 ibid. 2,85.

26 ibid. 4,42.

27 ibid. 3,38.

28 Dig. 48,1,13. See Mommsen, o.c. 220, n.5. Papinian was killed in A.D. 212. The date of the responsa is not known.

29 Dig. 48,16 passim, with frequent citation of Papinian on tergiversatio and kindred crimes, e.g. ibid. 10.

30 Dig. 48,5,28,15.

31 cf. ibid. 28 pr.

32 Dig. 48,19,11 pr.

33 cf. Dig. 48,5,14,5 (Ulp.); ibid. 42 (Sent. Pauli); ibid. 18 pr. is neutral. See Dig. 48,20,11, where appeal is envisaged. There was no appeal from a quaestio.

34 Dig. 48,1,13.

35 Momms., o.c. 186–7.

36 CJ 9,41,8,1.

37 Dig. 48,1,8. Kunkel (o.c. 779) was tempted to follow Schulz (History of Roman Legal Science 252) in pleading interpolation, but accepted the authenticity of the passage in the end—for the wrong reasons.

38 Dig. 48,1,2.

39 Mommsen, o.c. 220, n.5.

40 Kunkel, o.c. 776.

41 Dig. 48,14,1 pr.

42 Dig. 48,19,1,3.

43 Dig. 48,16,15,1.

44 Dig. 1,21,1 pr.-1.

45 The penalties for privata crimina might nevertheless be grave. See Dig. 48,1,7; 47,14,2.