¹ ‘The Lex Sempronia ne quis iudicio circumveniatur,’ CQ 1958, 241.

² History of Rome (Macmillan, 1908) III, 355Google Scholar. See also Römisches Strafrecht (1899) 258 with n. 1 and 633 with n. 2.

³ CAH IX, 53.

⁴ In Cicero, Brutus 48 (the only other certain reference to the law) a similar purely formal title is used. In this passage Isocrates' practice of writing speeches for litigants to deliver as their own is said to have brought cases upon his head ‘quasi committeret contra legem, “quo quis iudicio circumveniretur”’. (Here incidentally, it is worth noticing that there is no question of bribery; Isocrates is held guilty of fraud, of intriguing to pervert the course of justice.)

⁵ Pro Cluentio 148.

⁶ Dig. 48. 8. There may be an allusion to some such clause in Cicero, pro Cluentio 90, where the trial of Iunius (who had presided at the Oppianicus trial of 74 B.C.) is referred to thus: ‘dicat qui volt hodie de illo populo concitato … qua de re Iunius causam dixerit; quemcumque rogaveris, hoc respondebit, quod pecuniam acceperit, quod innocentem circutnvenerit’. (Iunius in fact was put on trial for purely technical offences.) See also pro Cluentio 131, where Cicero says that the censor Gellius (70 B.C.) excluded P. Popilius from the Senate ‘quod is pecuniam accepisset quo innocentem condemnaret’—the reference, of course, being to the trial of Oppianicus. (See below, p. 106, n. 66, for further consideration of these passages.)

⁷ Rotondi, G., Leges publicae populi Romani (Milan, 1912) 310Google Scholar, gives a ‘Lex Sempronia de sicariis et veneficiis’ merely as a possibility; he refers to Willems, P., Le Sénat de la Republique Romaine (Paris, 1883) II, 290Google Scholar, but Willems goes no further than to suggest that separate quaestiones ‘inter sicarios’ and ‘de veneficis’ were in existence well before the Sullan period. Note also the implications of the Ox. Cl. Dict. reference (Berger) s.v. ‘Quaestio’.

⁸ I should perhaps state here my belief that the only permanent quaestio in Rome in 123 B.C. was the quaestio de repetundis and that Gaius Gracchus did not constitute any more. See below, p. 101.

⁹ Circumvenio' seems to be one of the less satisfactory entries in the most widely-used dictionaries. Certainly it does on occasion mean ‘deceive, cheat,defraud’, etc., but many passages given, e.g. by Lewis and Short, to illustrate this use (including pro Cluentio 79) should plainly be classified with those where the meaning is ‘afflict, overthrow’, etc.

¹⁰ Note Cicero, Tusc. 1, 98 (where one of the heroes ‘iudicio iniquo circumventi’ was not involved in a ‘capital’ trial and where, incidentally, the injustice of neither decision was due to bribery). cf. Miners, o.c. 242, with n. 3.

¹¹ The application of this clause of the Lex Cornelia to the case of Cluentius will be discussed later.

¹² cf. in particular Appian, BC 1, 92–3.

¹³ Miners, o.c. 242. The argument seems to me on its own decisive.

¹⁴ I do not propose to enter into this controversy I Should the arguments of Mrs. Henderson, (JRS XLI, 1951, 71 ff.Google Scholar) finally prevail over those of Mr. Sherwin-White, (JRS XLII, 1952, 43 ff.Google Scholar) my main contentions would not be fatally weakened.

¹⁵ It may be doubted how far bribery was responsible for these acquittals. Certainly the δεδωροδοκηκότες 5 of Appian, BC I, 92, should be interpreted in this sense (see now Gabba, E., Appiani Bellorum Civilium Liber Primus (Florence, 1958Google Scholar) ad loc.), but Appian may give a false impression; there were other reasons why senatorial iudices should prefer to acquit.

¹⁶ Sherwin-White, o.c. n. 23.

¹⁷ See below, pp. 98 ff., for full discussion of this point.

¹⁸ There was one famous case of corruption: the bribery of L. Hostilius Tubulus ‘qui cum praetor (142 B.C.) quaestionem inter sicarios exercuisset, … aperte cepit pecunias ob rem iudicandam’ Cicero, de fin. 11, 54. Since, however, we do not know whether Tubulus was bribed to condemn or to acquit his man, we cannot be sure that this was the sort of case which would have fallen under the Lex Sempronia.

¹⁹ Plutarch, Gaius Gracchus 3.

²⁰ Sall. Jug. 31, 7; Vell. 11, 7, 3; Val. Max. IV, 7, 1; Cic. de amic. 37; Plut. Tib. Gracchus 20.

²¹ In Cicero, pro Rab. Post. 12; Schol. Ambros. p. 370; Plut. Gaius G. 4.

²² Val. Max. IV, 7, 1.

²³ cf. Cicero, in Verr. II, V, 163, ‘O lex Porcia legesque Semproniae!’

²⁴ Cicero, pro Sest. 61; Dio Cassius 38, 14. See Greenidge, A. H. J., A History of Rome (London, 1904) 1, 201Google Scholar.

²⁵ cf. P. Fraccaro, ‘Sulle “leges iudiciariae” romane,’ Rendiconti dell' Istituto Lombardo di scienze e lettere LII ( = Opuscula 11, 253–286), 353–4.

²⁶ See above, p. 94, n. 2.

²⁷ o.c. 242.

²⁸ Problems of the Roman Criminal Law (Oxford, 1912) 1, 244Google Scholar, n. 1.

²⁹ o.c. 242–3.

³⁰ o.c. n. 23.

³¹ Pro Clu. 103 is a difficult passage needing supplementation. None of the proposals of editors, I believe, conflicts with the view that Staienus was not charged separately with accepting money for purposes of bribery.

³² Henderson, o.c. 76 f.; Sherwin-White, o.c. 46.

³³ The full passage is ‘Lex Iulia de repetundis praecipit, ne quis obiudicem arbitrumve dandum mutandum iubendumve ut iudicet: neve ob non dandum non mutandum non iubendum ut iudicet: neve ob hominem in vincula publica coiciendum vinciendum vincirive iubendum exve vinculis dimittendum: neve quis ob hominem condemnandum absolvendumve: neve ob litem aestimandam iudiciumve capitis pecuniaeve faciendum vel non faciendum aliquid acceperit’.

³⁴ Among the criminal acts of which Cicero accused Verres was the acceptance of money to give particular judicial decisions (in Verr. 1, 13; 11, 11, 119). (The case described in mos t detail was that of Sopater of Halicyae (in Verr. II, 11, 69–81).) Cicero does not quote any clause of any extortion law explicitly covering this, but he implies that it was at least considered a ‘genus pecuniae cogendae’ (In Verr. II, 11, 120). In Verr. 1, 38 (referring to the case discussed above), seems more definite: ‘cognoscet ex me populus Romanus … quid sit quod, P. Septimio senatore damnato Q. Hortensio praetore de pecuniis repetundis, lis aestimata sit eo nomine quo d ille ob rem iudicandam pecuniam accepisset.’ Although, therefore, it may be that we should do no more than suppose that from the time of Sulla it was the practice to try such offences through the extortion court, without concluding that the current extortion law explicitly mentioned them, I think myself that by this time it probably did.

³⁵ See below, p. 101.

³⁶ Strafrecht 711, n. 2.

³⁷ Cicero, de fin. 11, 54; de nat. de. 111, 74.

³⁸ We have discussed one such case where it does seem to have been thought applicable, that of Septimius Scaevola. Above, p. 99.

³⁹ The view, of course, of Mommsen, , Staatsrecht 111, 529 ffGoogle Scholar. Rejection of it by Last, CAH IX, 76, and, in more detail, by Fraccaro, o.c. 336–344, 355.

⁴⁰ cf. Botsford, G. W., The Roman Assemblies (New York, 1909) 374 ffGoogle Scholar. de Fontette, P. (Leges Repetundarum (Paris, 1954) 51–3Google Scholar) has recently argued that Gaius passed a general lex iudiciaria and that there was a separate law reforming the quaestio de rebus repetundis.

⁴¹ o.c. 348–357. (In the course of his discussion he deals well with the ‘bogus’ problem of the use of the plurals ‘iudicia’, ‘δίκαι’, in the sources.) See also Gabba, on Appian BC 1, 92.

⁴² There was a ‘iudicium inter sicarios’ some years before 80 B.C. (Cic. pro Rosc. Amer. II ); there was a ‘iudex q. veneficiis’ about 100 B.C. (CIL 1, p. 279); about 113 L. Cassius was ‘quaesitor iudicii alicuius … in quo quaerebatur de homine occiso’ (Asconius, in Milon. 45); and in 142 B.C. L. Tubulus as praetor conducted a ‘quaestio inter sicarios’ (Cic. de fin. II, 54). In spite of the precision of this last reference, it seems likely that until well after the Gracchan period there were only occasional quaestiones to investigate murder charges, without definite standing rules of procedure or for the selection of iudices.

⁴³ His law was properly a law for the remodelling of the extortion court, but could be described as iudiciaria or δικαστικός with reference to the change in iudices because this was the most striking thing about it. (cf. Tiberius Gracchus' ‘lex iudiciaria’ (Macrobius, Sat. III, 14, 6) which was the ‘alia lex agraria … ut iidem triumviri iudicarent, qua publicus ager, qua privatus esset’ (Livy, Per. LVIII).)

⁴⁴ AJP 1954, 375–8.

⁴⁶ This is what, of course, Last and others think he did, as a first move. Yet it seems a fair question to ask why he then adopted other proposals. This supposed bribery legislation was never given a trial!

⁴⁶ ‘The unpolitical part of the upper class,’ Badian, E., Foreign Clientelae (Oxford, 1958) 202Google Scholar.

⁴⁷ Certain remarks attributed to Gaius have been used as evidence for vindictiveness and malice in his reform: (a) Cicero (de leg. III, 20) refers to sicae ‘quas ipse se proiecisse in forum dixit, quibus digladiarentur inter se cives’; (b) Diodorus (XXXIV–XXXV 27) describes Gaius greeting the approval of a law with the words ‘τὸ…ξἱφος ὑπόκειται τοῖς ἐχθροῖς’ (this, which does introduce a personal note, might refer to the lex ‘de provocatione’ and foreshadow the trial of Popillius); (c) Diodorus (XXXVII 9) refers to criticism of the jury law in the Senate and to Gaius saying ‘κἂν ἄποθάνω, οὐ διαλείψω τὸ ξίφος ἀπὸ τῆς πλευρᾶς τῶν συγκλητικῶν σιῃρημένος’; (d) Appia n (BC 1, 93) says that as soon as the jury law was passed ‘φάσι…τὸν Γράκχον εἰπεῖν ὅτι ἀθρόως τὴν βουλὴν καθῃρήκοι’. If Gaius really referred to ‘daggers’ and a ‘sword’ on several occasions, as at first sight these passages imply, then he must, I think, be adjudged a ‘party politician’ in the worst sense. If, as I suspect, they go back to a single remark made on a single occasion, then the discrepancies suggest we should not put too much reliance on this evidence. The Appian passage continues ‘τοῦ δ᾿ ἔργου προϊόντος ἐς πεῖραν μειζόνως ἔτι ἐκφανῆναι τὸ ἔπος τὸ Γράκχου’. In fact the consequences (and these exaggerated) of Gaius' law undoubtedly contributed to the misinterpretation of his motives in introducing it and such misinterpretation may have been assisted by incautious expressions of triumph, probably made by Gaius in the heat of the moment and seized on, and possibly exaggerated, by his opponents.

⁴⁸ Appian, BC 1, 93, is the most sweeping, but Cicero was at least on occasion capable of making a similar judgment (de leg. 111, 20; de fin. IV, 66).

⁴⁹ The latest collection of evidence is in P. de Fontette, o.c. 68–70, 85–6, but this needs correction. (The famous trial of Rutilius Rufus is given twice!) C. Porcius Cato, T. Albucius, and L. Lucullus, as well as Rutilius Rufus, were certainly condemned between 122 and 91 B.C., but the list of known acquittals is as impressive (including Aemilius Scaurus, Metellus Numidicus, and M'. Aquilius). Of course, acquittals do not necessarily mean that the men had governed well; they may indicate adequate bribery, or collusion with the equites in the provinces. (Note Cicero's admission in in Verr. II, 11, 94.)

⁵⁰ ‘It was a pure act of vengeance and (so far as we know) the first one since the lex Acilia’: Badian. Foreign Clientelae 215. The suggestions of Dr. Badian about the fundamental reorganization of Asia by Scaevola (Athenaeum 1954, 104 ff.) in fact do much to explain, if not to justify, this vengeance. We have also to remember the personal hostilities within the senatorial class (Badian, l.c., and Historia 1957, 318 ff.); the votes of equestrian iudices were all too often made use of by senators who put personal or factional interest above the claims of senatorial solidarity ! One theory which makes of Rutilius' case something more than a straightforward charge of extortion is the ‘attractive suggestion’ (cf. Balsdon, CR 1937, 10) that he might have been accused of taking bribes from Mithridates. It seems to me unlikely that such allegations were made and then lost from the tradition.

⁵¹ BC 1, 96–7; 158.

⁵² In other words, almost certainly equites, probably drawn from the panel for the extortion court (Cicero, Brut. 128). Mrs. Henderson (o.c. 85) regards the action of Mamilius (as of Saturninus in his lex de maiestate minuta) as the introduction merely of a fresh charge to be heard by the existing repetundae court, not as the creation of an additional quaestio. This view, with the distinction between substantial laws (denning crimina) and statutes directing procedure which underlies her treatment of judicial development, is attractive and stimulating, but cannot be fully discussed here. I adopt the orthodox view, of additional quaestiones, in the text, although I do not think that Mrs. Henderson's interpretation would necessarily conflict with the general trend of development I am postulating.

⁵³ By this time I would agree that there are signs of solidarity of interest among the equites.

⁵⁴ Two separate quaestiones may have persisted, cf. Willems, o.c. II, 290–1.

⁵⁵ The quaestio auri Tolosani was probably another, (Dio Cassius 97; Orosius v, 15).

⁶⁶ Note the ‘βουλετὰς γενομένους’ of 159. The rest of Appian's phrasing could be interpreted, I think, as referring to mixed quaestiones, not to an enlargement of the Senate. For what still seems the best exposition of the view that the Senate was to be enlarged, and the best explanation of the divergencies in the tradition, see Mommsen, ‘Über die leges iudiciariae des VII. Jahrhunderts bis zur lex Aurelia,’ Gesammelte Schr. III, 341. For the argument that the courts were to be mixed see Last, CAH IX, 179–180.

⁵⁷ See Mommsen, ‘Über die leges iudic …,’ o.c. 341, n. 4, and Gabba, note ad loc.

⁵⁸ See below, p. 105.

⁵⁹ So Gabba, ibid.

⁶⁰ See above, p. 105, and below, p. 100.

⁶¹ Particularly if Gaius Gracchus' legislation had been such as to leave it plain that senators, but not equites, were liable to prosecution for accepting bribes ! If, on the other hand, precise formulation of this kind had not yet been made, then we might suppose that the equites feared the establishment of special quaestiones (perhaps on the pattern of that which tried Tubulus in 141 B.C.), arising out of particular scandals, rather than established criminal legislation.

⁶² Cic. ad Att. 1, 17, 8. ‘Credo enim te audivisse nostros equites paene a senatu esse disiunctos: qui primum illud valde graviter tulerunt, promulgatum ex senatus consulto, ut de eis, qui ob iudicandum accepissent, quaereretur.’

⁶³ Mommsen (Staatsrecht III, 532, n. 1, and ‘Über die leges iudic ….’, op. cit. 341, n. 4) regarded the ‘iudicatam’ of this passage as the indication that Drusus' inquiry was to be retrospective; and I suppose if it was retrospective this was a possible way for Cicero to refer to it. However, Cicero could equally have used ‘iudicandam’, even though the corruption he was thinking of was in the past, and surely that ‘ob rem iudicandam’ was the logical and grammatical use is borne out by other examples of the phrase ? Note the way in which Cicero describes Tubulus’ case ‘aperte cepit pecunias ob rem iudicandam’ (de fin. II, 54). The judgment may be past, but it is subsequent to the acceptance of the money. Mommsen also drew attention to the pluperfect tense of pro Cluentio 153, which refers to the fears of Drusus' proposals felt by those ‘qui rem iudicassent’. This second passage seems more noteworthy than the other; even so, one might hesitate to conclude from it that Drusus' law was retrospective.

⁶⁴ References in Gabba, on Appian BC I, 158.

⁶⁵ See above, p. 99.

⁶⁶ It should, however, be pointed out that the passages from the Digest and from Cicero, pro Cluentio, quoted in p. 95, n. 6, indicate that at least the Lex Cornelia de sicariis et veneficis could punish the acceptance of bribes by someone with judicial authority (‘magistratus iudexve quaestionis’) for the condemnation of an innocent person in a capital case. Could this clause have been taken over by Sulla with others from the Lex Sempronia ‘ne quis iudicio circumveniatur’ ? Certainly Cicero gives the impression that the Lex Sempronia was concerned with a general liability of senators (pro Clu. 151), not with the liability of those with judicial authority, but this impression may be misleading; some clauses of the Lex Sempronia may have been much more specific. (It has been admitted—see p. 97—that it is possible that the law was meant from the first to cover some forms of bribery.) However, even if Livius Drusus was directly inspired by the phraseology of the Lex Sempronia this does not prove that it, too, was primarily concerned with the extortion court.