(or, as Mommsen shows, more
correctly called duoviri perduellioni judicandae
) were two
officers or judges appointed for the purpose of trying persons who were
accused of the crime of perduellio.
held that they were the same as the quaestores
but this view is undoubtedly erroneous, arising
from the mistaken view that the latter term was the title for an office
distinct from the ordinary quaestorship, whereas it was really only the full
official title of that magistracy (Mommsen. Staatsr.
But while the quaestores
were elected annually,
the duoviri perduellionis
were appointed only
for a special occasion. We have very little information as to the duoviral
process: only three cases of its employment are recorded; and there are
difficulties attaching to all of them. In the first, the trial of P.
Horatius under Tullius Hostilius (Liv. 1.26
while Livy expressly mentions the nomination of duo
by the king, the account given from Ulpian in the Digest
) assumes that they were quaestors,
named by him after a vote of the people; while Festus, s. v. sororium,
p. 297 M., agrees with Livy. In the
second, that of M. Manlius, in B.C. 384, Livy (6.20
), while describing it as a prosecution by the tribunes before a
adds, “sunt qui per
duoviros qui de perduellione anquirerent creatos auctores sint
damnatum.” Lange (1.278) proposes to reconcile the accounts, by
supposing that the tribunes were elected to prosecute. Mommsen (Hermes,
5.253) assumes that Livy's second
alternative rests on the older tradition. In the third case, the prosecution
of C. Rabirius in B.C. 63 for the murder of Saturninus, thirty-six years
before, we have an attempt to revive a long-disused procedure, in the
interests of the democratic party, led by Caesar. Other cases of perduellio
were conducted by tribunes or quaestors,
but it is not expressly mentioned that they acted as duo
Whether duo viri
appointed, appears to have been determined in each instance by a special
resolution of the people (Mommsen, Staatsr.
they were elected by the people (cf. D. C.
); but in the case of Rabirius the praetor appointed two taken
by lot, but from what body we are not told, doubtless by the direction of
the law specially enacted (Cic. pro Rab.
perd. reo, 4
, 12). The duo
received a commission to try the case of perduellio,
and to pass sentence if they found the prisoner
guilty: both Livy, and still more strangely Cicero, seem to think that this
commission assumed the guilt of the accused, and excluded the possibility of
an acquittal,--an impossible view. But the sentence passed was liable to an
appeal to the people, and in this case the duo
appeared to support their decision, viz. virtually to act as
Trials for perduellio,
if not previously
obsolescent, as Mommsen thinks, in consequence of the growing practice of
the tribunes to impeach before the centuries, certainly became quite
obsolete after the more convenient quaestio
dealt with offences of the same nature, under the more
precise definition of majestas.
But the term
is found even in the Digest,
though as a loose expression for the more serious kinds of majestas.
(Cf. Mommsen, Staatsr.
2.598 ff.; Clark, Early Roman Law,
§ 12, and
especially Cicero's oration pro Gaio Rabirio
with Heitland's introduction and notes.)