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Some Notable Judicia Populi on Capital Charges
Published online by Cambridge University Press: 24 September 2012
Extract
Though I have described my paper as “some notable judicia populi,” I must make the somewhat paradoxical explanation that more than half the cases dealt with never reached the stage of being judicia populi at all. Still, but for suicide or voluntary exile, or the dropping of the preliminary trial, they would all of them have had to come before the people, and I hope that this will justify my title.
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- Copyright © E. G. Hardy1913. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies
References
page 26 note 1 Livy, i, 26.
page 28 note 1 de Repub. ii, 31, 54, cf. Livy; ii, 8.
page 28 note 2 Livy, ii, 52.
page 28 note 3 Staatsrecht, iii, p. 387.
page 29 note 1 Livy, iii, 57; vi, 20; xliii, 16.
page 29 note 2 de Legibus, iii, 19, 44.
page 29 note 3 cf. also iii, 4, 11.
page 29 note 4 de Repub. ii, 31, 54.
page 29 note 5 Livy, iii, 55. In all probability not only the creation of a magistrate exempt from appeal, but the death penalty inflicted by any magistrate without appeal would be covered by this sanction. In this case Mommsen's explanation of “improbe factum” in Livy, x, 9, 6, given by Mr. Strachan-Davidson, vol. i, p. 144, would be confirmed.
page 30 note 1 Livy, iii, 56–58.
page 31 note 1 de Domo, 17, 45.
page 31 note 2 Livy, x, 9.
page 32 note 1 Livy, xxv, 3 and 4.
page 32 note 2 The word certare in connexion with provocatio is found both in the case of Horatius and in the locus classicus from Cicero to be cited below. Whether the tribunes “multam dixerunt” at the end of their anquisitio and “multam inrogaverunt” in the comitia, as Dr. Greenidge and others hold, has been made more than doubtful by Mr. Strachan-Davidson, vol. 1, pp. 175, ff.
page 33 note 1 Livy, xxvi, 2 and 3.
page 33 note 2 The constant use of prodicta dies by Livy shows that ne inprodicta die is explained by the words which follow. Why Mr. Strachan-Davidson should take it differently I do not understand.
page 33 note 3 de Domo; 17, 45.
page 34 note 1 de Leg. iii, 12, 27.
page 34 note 2 It is difficult to see how the case of Postumius justifies Greenidge's assertion on page 328 that the tribune still hears cases of perduellio before his own peculiar assembly. That charge was not heard anywhere, and if it had been, the case of Fulvius proves conclusively that it would have been before the centuries.
page 35 note 1 Staatsrecht, iii, p. 356.
page 36 note 1 Livy, xxxviii, 50–52.
page 37 note 1 The μία Φυλὴ in Polybius, 6, 14, is an obvious slip.
page 37 note 2 Livy, xliii, 16.
page 37 note 3 See Brans, appendix, p. 59, and Strachan-Davidson, i, 156, ff.
page 40 note 1 de Repub. 2, 31, 54.
page 40 note 2 Sail. Cat. 51.
page 41 note 1 Plut. Tib. Grace. 20.
page 41 note 2 Val. Max. 4, 22 : cf. the crudeles quaestiones of Velleius, 2, 7.
page 41 note 3 Cic. pro Rob. 4, 22.
page 41 note 4 pro Mil. 14, 36.
page 41 note 5 Cic. post Red. in Sen. 15, 38.
page 42 note 1 post Red. in Sen. 15, 38, and de Domo, 32, 87.
page 42 note 2 Gains Grac. 17.
page 42 note 3 in Cat. I, 2, 4.
page 42 note 4 i, 245.
page 42 note 5 Plut. G. Grace. 16 and 17; App. 1, 26; Sall. Jug. 31; Liv. Epit. 61; the point about the carcer comes from Sallust and Livy.
page 43 note 1 de Oratore 2, 25, 106.
page 43 note 2 Cic. Part. Orat. 30, 104; cf. de Orat, ii, 30, 132.
page 43 note 3 Bell. Civ. 1, 7. The plural Gracchorum need not be pressed so as to imply that the senatus consultum ultimum was passed in the case of Tiberius. All the evidence implies that it was not.
page 44 note 1 App. I, 29.
page 44 note 2 Cicero, pro Sesiio. 47, 101.
page 44 note 3 Livy, Epit. 69.
page 44 note 4 Cicero, in a passage quoted above, says that both Popilius and Metelius were driven out tribuniciis rogationibus. Dr. Greenidge argues from this that Popilius was, or was to have been, tried by the plebs, and yet he admits here that Metellus was not. The words of Cicero would at any rate indicate that the procedure was the same in both cases.
page 45 note 1 de Domo, 31, 82.
page 46 note 1 Ascon. in Corn. p. 8c.
page 47 note 1 pro. Rab. I, I, etc.
page 47 note 2 See p. 43.
page 48 note 1 pro. Rab. 10, 28.
page 48 note 2 cf. “sorte ductus” in Suet. Caes. 12.
page 49 note 1 pro Rab. 4, 12.
page 49 note 2 cf. the phrase “indicta causa condemnari coegit,’ pro Rab. 4, 12.
page 49 note 3 pro Rab. 4, 13.
page 49 note 4 ibid. 3, 10.
page 49 note 5 cf. pro Rab. 4, 12. “C. Gracchus legem tulit ne de capite civium Romanorum injussu vestro judicaretur, hic popularis a duumviris injussu vestro non judicari de cive Romano sed indicta causa civem Romanum capitis condemnari coegit.” Mr. Strachan-Davidson (I. 196) finds the words “injussu vestro” inconsistent with the view that the duumviral court was established by a tribunician law. I am inclined to think that the phrase like indicta causa qualifies not coegit but condemnari. If so, the words are of course not used in the same sense as in the first clause, and a false antithesis is suggested between the action of Labienus and the action required by the Sempronian law, but the suggestio falsi produced by the repetition of the phrase is by no means inconsistent with Cicero's oratorical methods. It is abundantly clear that it was Labienus who in some way got the duumviri appointed, and there was no means by which a tribune could do this except by a tribunician law. In fact the gravamen against Labienus was not that he had established a judicium injussu populi, but that he had misled the people into establishing one based on a shadowy and barbarous precedent out of harmony with the free republic and suited only to the age of the kings.
page 50 note 1 in Pison. 2, 4.
page 50 note 2 pro Rab. 3, 9.
page 50 note 3 ibid. 5, 17.
page 50 note 4 ibid. 9, 25.
page 51 note 1 pro Rab. 3, 8.
page 51 note 2 The whole passage in pro Rab. 5, 16 evidently refers to the tribunician trial, which, however objectionable, was at least in accordance with the forms of the free republic. “Misera est ignominia judiciorum publicorum, misera multatio bonorum, miserum exsilium; sed tamen in omni calamitate retinetur aliquod vestigium libertatis. Mors denique si proponitur, in libertate moriamur, carnifex vero et obductio capitis et nomen ipsum crucis absit.”
page 51 note 3 de Domo, 17, 45.
page 52 note 1 Dio Cass. 37, 28.
page 53 note 1 See S trachan-Davidson, i, p. 241, note I.
page 53 note 2 Vell. 2, 45; cf. Livy, Epit. 103.
page 55 note 1 As a matter of fact, Cicero had already been publicly thanked by the senate on the previous day for having saved the state, and in view of the revulsion of popular feeling after his speech to the people (“mutata mente Catilinae consilia execrari, Ciceronem ad caelum tollere:” Sall. Cat. 48), it is clear that all practical danger was over.
page 56 note 1 in Cat. 4, 5, 10.
page 56 note 2 cf. in Cat. 4, 6, II.
page 57 note 1 This is all that is implied by Val. Max. vi, 3, 3, cited below, where it is a pity that Dr. Greenidere translates “the senate ordered the confiscation of his goods,” p. 515.
page 57 note 2 de Domo, 13, 33.
page 57 note 3 Plut. G. Gracchus, 17.
page 57 note 4 in Cat. 4, 5, 10.
page 58 note 1 I cannot but think that Sallust's famous summary (Cat. 29) of the powers called into existence by the senate's decree was from the popular point of view carelessly and injudiciously framed, and that Caesar, if it had been submitted to him, would have revised it. The words “maxima per senatum potestas magistratibus permittitur” are inexact and misleading. The “coercere omnibus modis socios atque cives” must be limited to citizens and others acting like public enemies. The “summum judicium habere” can only mean that punitive power of summary execution which can be described as judicium merely in a non-technical and non-legal sense. I am inclined to doubt Dr. Greenidge's view that the senatus consultum ultimum allowed the magistrate a “summary trial” at which he could use a consilium. The passage from de Amicitia, II, 37, does not prove it, for Popilius was not acting on the senatus consultum ultimum but was presiding over an extraordinary judicium.
page 58 note 2 Dio Cass. 38, 17.
page 58 note 3 de Domo, 18, 47.
page 59 note 1 de Harus. Resp. 4, 7.
page 59 note 2 Livy, xliii, 16.