Bernardo Santalucia, Studi di diritto penale romano. Saggi di storia antica 7. Rome: L'Erma di Bretschneider, 1994. Pp. v + 262. L220,000. ISBN 88-7062-864-7.
Reviewed by Andrew M. Riggsby, University of Texas, Austin (email@example.com).
As its title says, this is a collection of studies, rather than a systematic discussion of Roman criminal law (for which the reader may see the same author's Diritto e processo penale nell' antica Roma [Milan 1989]). All of the studies have been previously published (as detailed in the "Premessa"), though most in places not readily accessible to the American audience. There is considerable variation in genre -- there are conference papers and journal and encyclopedia articles -- and, as a result, there is also great variation in quotation of primary sources, the citation of secondary sources, and argument of potentially controversial points. The overall coverage is broad, but the early Republic is strongly emphasized.
The first chapter addresses criminal procedure in the XII Tables. The textual evidence for this period is, as S(antalucia) admits, slight, and he attempts to supplement it by reference to earlier, regal law (not much better documented) and by the use of archeological evidence. For the regal period, S. stresses what he sees as the primarily sacral character of the kingship in general and of criminal jurisdiction in particular. Most "crimes" were of a religious character, were judged by the king in his capacity as chief priest, and were punished by accordingly. For minor offenses, the guilty party was compelled to sacrifice a specific animal or portion of their fortune to the appropriate deity. Major offenses were punished by his dedication to the divinity. This made him subject to killing by anyone with impunity. This is the penalty described by leges regiae with the clausula sacer esto and probably confirmed by the Lapis Niger's sakros esed. Finally, a few extreme offenses were punished by actual sacrifice of the offender by the state; such penalties were marked by more explicit language such as Cereri necari. Aside from these religious offenses, there were a few direct offenses to the community as a whole (e.g. proditio) which were judged by the king in a quasi-military capacity, by means of a more-or-less unlimited power of coercitio. In all these cases the legal authority lies with the king, but S. suggests plausibly that from a fairly early date there was considerable public presence in the rituals of judgment and punishment.
The most novel suggestion here, and the one which will be crucial for some of his later arguments, is that the "public" presence in criminal matters took the form of the comitia centuriata. S. offers three pieces of direct evidence. Varro LL 6.31 explains the calendrical abbreviation Q(uando) R(ex) C(omitiavit) F(as) with "dies ... is dictus ab eo quod eo die rex <ex> sacrificio ius dicat ad Comitium: ad quod tempus ex nefas, ab eo fas; itaque post id tempus lege actum saepe." "Ius dicat" should mean public law matters, since (as the passage goes on to say) legis actiones will follow. The assembly (implied in comitiavit) meeting in the Comitium is presumably the comitia curiata. The problem here is that Goetz-Schoell's Teubner here reads "eo die rex sacrific[i]ulus +dicat ad comitium." They base this on the appearance of "sacrificiolus" in a collation of the (now-lost) archetype of our MSS of LL, and on the explanation of QRCF in Festus (311L): "quando rex sacrificulus, divinis rebus perfectis, in comitium venit." S. replies that none of the apographs of that archetype have "sacrific(i)ulus" and that Festus' entry shows signs of anachronism: why would the rex sacrificulus (except as a reflection of the rex proper) enter the Comitium in the first place? In itself S's reading of Varro's troubled text seems plausible, if not compelling, in itself but the coincidence with Festus seems suspicious even if there are problems with the latter. His second piece of evidence is a law reported by DServ. Ecl. 4.34 that someone who has killed accidentally must sacrifice a ram "in contione." It is possible that Servius or his sources have suppressed the name of an assembly here, but there is certainly no independent evidence for that. Finally, S. notes the paving of the Comitium towards the end of the seventh century B.C. Whatever this may say about the general political character of the city, it is hard to see how it can be connected with specifically judicial developments (a caution that applies to most of S.'s use of archeological evidence).
In any case, S. claims that at the beginning of the republic the comitia curiata inherited the king's criminal jurisdiction, moving from audience (or perhaps advisory body) to true court. The provision of the XII Tables on capital trials was, on this theory, a subsequent patrician/plebeian compromise. Sest. 65 says "et sacratis legibus et duodecim tabulis sanctum esset...ne de capite nisi comitiis centuriatis rogari [liceret]." Even before the XII Tables a plebeian lex sacrata had removed jurisdiction from the (less democratic?) comitia curiata, and the code simply reflected that state of affairs. On the other side, a provision recorded by Salvian (Gub. Dei 8.24) forbade the killing of a "hominem indemnatum".1 This was, according to S., meant to prevent judgment by a plebeian assembly under the guidance of a tribune, a procedure which is attested several times between 491 and 454.
The second chapter deals with the rare and obscure process of when the duumviri perduellionis were involved. S. makes two key points: that the duumviri issued a summary judgment from which there was no official appeal and that this procedure was intended only for those caught in flagrante.
There are enormous evidentiary problems here. We have only two clear examples of duumviral prosecution -- those of Horatius (under Tullus) and of Rabirius (in 63). The primary source for the prosecution of Horatius is Livy 1.26, and it is difficult to tell how much his account is affected by what he knew of the trial of Rabirius or whether perduellio (not parricidium) was even the original charge (see Watson, CQ 29.436). S.'s putative third example is recorded as a variant of an otherwise conventional prosecution in a single sentence (Livy 6.20.11-12).
S. confronts head-on the objection to his first thesis that in both well attested cases the sentence of the duumviri was in fact followed by a popular appeal. In both cases S. claims this was a special dispensation granted by a magistrate (the king Tullus and the consul Cicero) who out-ranked the duumviri. He finds two passages in Cicero's defense of Rabirius which respond (purportedly) to the prosecution's objection that a public hearing was inappropriate. Rab. perd. 10 refers to the "perduellionis iudici[um], quod a me sublatum criminari soles." This might refer to a procedural anomaly, but could just as well be an example of the intentional confusion of the specific issue (should Rabirius be punished?) and the general (should perduellio be punished?) common in advocacy. Cicero himself was particularly vulnerable to this kind of argument given his success in getting his clients off (cf. Mur. 3, Sull. 21). In the second passage (Rab. perd. 12) Cicero laments that the "popularis" Labienus had wanted Rabirius executed "indicta causa." If taken literally this passage might support S's view, although it might merely indicate that the appeal to the people was, formally, optional. Cicero's complaints about the procedural rules under which the trial was held also tell against S's position (Rab. post. 6-9); if the trial is a special consular dispensation in the first place, why is it apparently the opposition that set its rules?
Cicero and Livy both quote very similar versions of the underlying law, and S. points out that Cicero does not have the part Livy quotes which specifically allows for an appeal (provocatio). This, however, begs the question, as it would only have been relevant to the trial if the prosecution had been questioning the legitimacy of a comitial trial in the first place. Paradoxically, a somewhat stronger case can be made from Tullus' law as reported in Livy, which does explicitly allow provocatio (1.26.6). Livy describes the king as a clemens legis interpres. This phrase might suggest that the king was pronouncing a traditional judgment but was moved by circumstances to add the provocatio clause ad hoc. Livy 9.33.8 does use Tullus as an exemplum for the granting of provocatio when it was not required; this is in an attempt to convince a dictator to grant appeal against his own sentence, even though that was not normally allowed. But the point in both passages could also be the power of the king (and the dictator) to show mercy, rather than whether that mercy is permanent or ad hoc. A final Livian passage (6.20.10-12) describes the trial of Manlius Capitolinus by the tribunes before a concilium populi. Between the description of the verdict and the sentence, Livy says "sunt qui per duumviros, qui de perduellione anquirerent creatos, auctores sint damnatum." Whatever actually happened, this establishes, for S., another connection between the duumviri and a process without popular trial. But Livy writes per (not apud) duumviros which is more likely to mean that duumviri were in charge of the prosecution instead of tribunes.2
We only know of a few other cases of perduellio, so it is very hard to evaluate the claim that the duumviri were restricted to prosecuting those who were caught in the act. We do not even know for sure what perduellio was.3 There do not, however, seem to be any clear counter-examples, positive or negative, to S's hypothesis.
The next two chapters discuss ordinary trials before the people initiated by tribunes (and incidentally quaestors) and aediles respectively. The discussion of tribunician prosecution begins with a convincing reading of Varro LL 6.90-92 which shows that, at least according to this authority, quaestors could summon and preside over the comitia centuriata, on their own authority and under their own auspices, for the purpose of capital prosecutions. (Presumably these could, however, be quashed by higher authority; cf. LL 6.91.) By contrast, S. argues, three passages show prosecuting tribunes requesting the authority of the praetor (diem petere; Liv. 26.3.7-9, 43.16.11, Gell. 6.9.9). Thus they lack the independent authority of the quaestor in this matter. This distinction is explained as a hold-over from the very early days of the tribunate when it was not formally an office of the Roman state. Such a historical account coheres well with his earlier discussion of the jurisdiction of the comitia centuriata. It also allows S. to explain the apparent distinction in the first passage of Livy (26.3.8) between capital accusations prosecuted legibus and pecuniary ones prosecuted moribus. That is, the tribunes retained their right to try non-capital cases before a plebeian assembly, but capital trials brought them into the realm of the leges proper. In the second and third of S's examples the tribune not only diem petit, but also diem dicit. The vast majority of popular accusations are signified merely by diem dicere, so S. would presumably hold that this is short-hand for the full procedure.4
The discussion of aedilician prosecutions amounts to a selective review of Luigi Garofalo's Il processo edilizio: Contributo allo studio dei "iudicia populi," (Padua 1989). S. contests three of Garofalo's claims: that aedilician jurisdiction was derived from that of the tribunes, that the aediles had jurisdiction in all prosecutions of women, and that all aedilician prosecutions went before an assembly of the people. On the first point the evidence is particularly weak and doubtful, though a general institutional independence on the part of the aediles may be in S's favor. On the second point S. adduces a number of laws which specify enforcement by qui volet magistratus. He also produces the specific case of the tribunician prosecution of the wife of Atilius Regulus during the first Punic War (Diod. Sic. 24.12.1-3). The disproportionate number of aedilician prosecutions of women he attributes to their jurisdiction of "common" rather than "political" offenses. He objects to Garofalo's proposed counter-examples to his jurisdictional thesis by claiming that the latter has taken "political" too broadly; he does this without offering a definition of "political." This relates to the final claim, that many aedilician processes were not carried out before the full people. Here he again refers to the same qui volet laws, and notes that some specifically offer the magistrate the choice of a private law procedure. He also suggests that even without specific enabling legislation, aediles could have challenged defendants to a sponsio. If the aediles were really to keep public order by prosecuting "common" crimes, they would have needed a more stream-lined mechanism than the iudicia populi. The underlying assumption can be questioned (we will return to this later), but aside from this there is little positive evidence for S.'s claim. Nearly all of the examples of sponsione provocare collected by Crook (JRS 66.132 ff.; cited by S.) are of persons trying to protect their reputation in a matter in which trial on a specific charge is not an option. Furthermore, an aedile offering a sponsio would have to rely on the cooperation of the defendant to spare him the trouble of a full popular prosecution.
Legislation on counterfeiting and related offenses, especially the Sullan law, forms the subject of the fifth chapter. The main thrust of the discussion is that original measures were very narrowly drawn, with many of the provisions preserved in our sources coming only in classical or post-classical times. S. begins with discussion of an edict of the praetor Gratidianus (probably 85 B.C.) in response to a flood of adulterated and/or short-weighted denarii; all we know of its content was that it provided for a "poena" and a "iudicium." He hypothesizes that the edict provided for a private action and that that action was for recovery of damages from a person who passed counterfeit money. The first point is likely on formal grounds; if this is so, then S. might well be right about the second, though there is no direct evidence. The rest of the chapter examines juristic texts to trace the evolution of the law. In addition to some points about different formulae used by the compilers, he begins from the observation that one passage (D. 48.10.9.pr) forbids adulteration of silver coins (argenteos nummos) and the adulteration of gold (aurum). This (along with specific language about use of base metals) would then be the original state of the law. It would also be consistent with the fact that denarii were (apparently) specified by the edict of 85. S. claims that it would actually be expected at a time when gold was only coined in extraordinary circumstances. This conclusion is not fully supported, but the distinction that S. is drawing is at least possible at this period. Several other recorded provisions are dated (after the third century) by comparison with imperial constitutions. Finally, two provisions are rejected on the grounds that the are covered by other statutes. In one case, a passage of Ulpian on filing down coins is cited in the Digest as evidence for the eventual state of the lex Cornelia, but that passage is from a book of the de Officio Proconsulis that is likely devoted to peculatus. Similarly, he holds that substitution of base metal coins for gold or silver ones cannot have constituted falsum in classical law because it was punishable as stellionatus. Even if the book number in Ulpian is correctly transmitted, we should recall that the same offense could be tried under more than one law.5 Nonetheless, neither of these offenses is clearly attested for an early period, and neither is motivated by the known circumstances of the lex Cornelia.
In the earliest reconstructible stage of homicide law, according to S's sixth chapter, a distinction was made between involuntary and voluntary acts. The former called for an expiatory sacrifice, while the latter required vendetta by the family of the deceased (so S. understands the crux paricidas esto). In either case, quaestores par[r]icidii served primarily as referees in what was essentially still a private matter. The state did not really take jurisdiction over homicide until provisions of the XII Tables (discussed above) outlawed the killing of a hominem indemnatum. Over time the jurisdiction of the comitia centuriata (not well attested, perhaps because most trials were not sensational enough for the historians) gave way to quaestiones extraordinariae, then to standing quaestiones. Different offenses (poisoning, "gangsterism," simple murder) were originally tried before different courts, and it is not clear when any of these originated (probably after 142 and before Sulla) nor whether they were joined into a single court before Sulla's lex Cornelia de sicariis et veneficiis. This is a process that could use more attention. For instance, when S. (following Cloud, ZSS 85.258ff) points out that the original target of legislation de sicariis was not murderers per se, but members of organized criminal/political gangs, he explains the law only with reference to Sulla's need to suppress these groups. Yet it is quite likely that the language predates Sulla, perhaps by decades.6 The creation of a general notion of homicide comes to Roman law only by the evolution and combination of several more specific notions, but S's claim that this happened only after the lex Cornelia is based on a collapsing of the histories of the precursor offenses. It is not clear that S's view is wrong, but he fails to make any real arguments for his position. S. then goes on to point out the exceptions to the lex Cornelia: slaves (certainly one's own, perhaps any), children in potestate (though, as S. points out, law and practice seem to have diverged here), and the proscribed.
The chapter concludes with a survey of the non-title offenses that fell under the lex Cornelia de sicariis et veneficiis. Abuse of legal process in various forms is certainly covered and at least in part these provisions are derived from earlier legislation. Again, S. does not take very seriously the question of why these several crimes should be grouped together, especially if, as he claims, the lex Cornelia was not intended as a general homicide law. Another provision that was for S. part of the original lex Cornelia targeted arson. However, Cicero PS 4.31, often cited here, includes items punishable as vis, so arson could originally have fit under either statute (or both).7 Marcianus D. 48.8.1.pr, who seems to adhere closely to the original state of the law, includes arson, but at just this point there is a serious textual problem (see Ferrary, Athenaeum 79.419-20). In any case, S. proceeds to clearer examples of later adjustments to the law by senatus consultum and imperial constitution: castration, magic, denying aid to the shipwrecked, dropping things from buildings, etc. S. also notes that as homicide comes into the ambit of cognitio extra ordinem, several of the lex Cornelia's "loopholes" are tightened. There are increasing restrictions on killing slaves and children. The law is also interpreted to apply (if with lighter penalty) to cases which do not meet the high original standard of intentionality (dolo malo, hominis necandi causa).
Chapter VII is entitled "la repressione dei reati comuni in età repubblicana," but its topic is more specifically the tresviri capitales. S. begins from the point, already made in his chapter on the aediles, that full comitial procedure would be a very clumsy way to prosecute any but the most major crimes. According to S. the aediles would have handled a few minor cases via civil process, but for the most part these were the special province of the tresviri. These magistrates played perhaps a three-fold role. They and their small staff seem from several references in Plautus to have patrolled the streets at night, delivering brief imprisonment and summary beatings to, at least, slaves and fures manifesti. Even if their legal jurisdiction was broader than this, such penalties were apparently restricted to the lower classes. They clearly also acted as the praetor's representatives in criminal matters; they were in charge of having imprisonment and execution carried out. Such pre-trial detention is particularly important because it was not of fixed duration and there was no regular equivalent of habeas corpus; in two cases persons are said to have died before coming to trial. Release by tribunician intercession or by giving of praedes was perhaps practically limited to the elite. Finally, in some cases they may have actively investigated cases brought to their attention (the original sense of nomen deferre) by citizens. S. rightly emphasizes, contra Kunkel (Untersuchungen zur Entwicklung des römischen Kriminalverfahrens in vorsullanscher Zeit ), that in the latter two roles the tresviri do not exercise a jurisdiction, but serve an administrative function. But even if the tresviri served several "police" functions, it is not at all clear that they had sufficient staff to have any effect in a city the size of Rome. S. assumes that someone must have been suppressing ordinary crime, and the tresviri are the best bet. Yet as Nippel (JRS 1984.20ff) has argued, this may be the wrong model. It may not matter much who the republican Roman police force was, because policing may not have been the Romans' primary means of preventing crime.
The last two pieces are a long article on criminal procedure and a shorter one on criminal penalties for the Enciclopedia del diritto. For the most part these summarize material already presented in the previous chapters, though they do treat the standing quaestiones and (to a lesser extent) cognitio extra ordinem more systematically. S. sometimes glances at alternative views (such as Fascione's attempt to date the ambitus court to 159, which he rightly rejects), but for the most part he just gives a narrative exposition.
S. is a very sensible scholar with a firm grasp of the evidence. I have noted most of my specific objections, but in general S.'s attempts to nuance previous, overly schematic accounts (primarily Mommsen's and Kunkel's) are quite plausible. The main limitations of the work lie elsewhere. First, it concentrates on a very early period for which the evidence is often insufficient to reach any decisive conclusions. Second, the audience for collected essays such as these will largely be limited to specialists in law or early Roman history. This is a work for large libraries. There are indices rerum and locorum, but no bibliography (and references in the footnotes can cross chapters without warning). The physical construction of the book is sturdy and reasonably attractive, and typos are few and minor.8
 This is not a legal work, nor is Salvian's specific point a technical one. One might then wonder whether the alleged law is perhaps a casual reference to the much better attested provision about the comitia centuriata.  See TLL, s.v. apud, coll. 341.42-342.16 and OLD, s.v. per, 15b.  The latest attempt at definition (B. Liou-Gille, Latomus 58.3-38) succeeds only by refusing to account for most attested cases. Most cases seem to involve either preemption of the state's right to punish or gross incompetence in office.  For example 2.35.2, 3.11.9, 4.42.3, 6.19.7, 37.57.12, 43.16.11. Note also that diem petere can refer to an informal request directed to an equal (28.45.8).  E.g. leaving one's province without proper permission, prosecutable as both maiestas and, after 59, repetundae (though it has been pointed out that successful military ventures were not normally prosecuted at all). In a more peculiar instance, Milo was tried in 52 for vis under both the recent lex Pompeia and the usual lex Plautia (Asc. 54C).  One minor but illustrative example: S. argues (118n44), contra Cloud CQ 18.140-3, that Sulla's law could not have been de sicariis et veneficiis (with two i's), since the two halves of the title would not then be parallel. But since the offenses predate the law, there is no reason the names used in it could not also, so there is no reason to expect parallelism.  The claim (120n53) that the lex Cornelia only became a common homicide law when arson and esse cum telo were "attracted into the orbit of the crimen vis" seems to assume again (cf. n.5 above) that a given offense can only be prosecuted under one law.  P. 43 Tullio (for Tullo, twice), 87 the footnote separator runs through the first footnote, 91 sguado, 119 R(rex), 214 e for e.