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REPETUNDAE or PECUNIAE REPETUNDAE. Repetundae pecuniae in its widest sense was the term used to designate such sums of money as the socii of the Roman state or individuals claimed to recover from magistratus, judices, or public curatores, which they had improperly taken or received in the Provinciae or in the Urbs Roma, either in the discharge of their jurisdictio, or in their capacity of judices, or in respect of any other public function. Hence the word repetundae came to be used to express the illegal act of officials in extorting or taking money from those subject to them, as in the phrase “repetundarum insimulari, damnari;” and pecuniae meant not only money, but anything that had value. The expression which the Greek writers use for repetundae is δίκη δώρων (Plut. Sull. 5). The crimen repetundarum, then, is the crime of official corruption and oppression, an offence which became more frequent as the Roman dominion extended, and was therefore made the subject of various penal enactments.

It is stated by Livy (42.1) that before the year B.C. 173 no complaints were made by the socii of being put to any cost or charge by the Roman magistratus. Subsequently, when complaints of exactions came to be made, an administrative inquiry was instituted into this offence by extraordinary commissions of the senate, as appears from the case of P. Furius Philus and M. Matienus, who were accused of this offence by the Hispani (Liv. 43.2). Regulations respecting donations to governors of provinces by their subjects were prescribed by the Lex Porcia (Liv. 32.27), but the first lex repetundarum was the Calpurnia, which was proposed and carried by the tribunus plebis, L. Culpurnius Piso (B.C. 149), who was distinguished also as an historical writer. The Lex Calpurnia established for the first time a perpetua quaestio to try persons charged with this offence, a special praetor being appointed to conduct the trial (Cic. de Off. 2.2. 1, 75; Brut. 27, 106). The lex only applied to provincial magistrates, because in the year B.C. 141, according to Cicero (de Fin. 2.16, 53), the like offence in a magistratus urbanus was the subject of a quaestio extra ordinem. It seems that the penalties of the Lex Calpurnia were merely pecuniary, being recovered by the actio sacramenti, and at least did not comprise exsilium, for L. Cornelius Lentulus, who was censor B.C. 147, had been convicted on a charge of repetundae in the previous year. The sum to be restored was ascertained after conviction by the proceeding of litis aestimatio, or taking an account of all the sums of money which the convicted party had illegally received. Various leges de repetundis were passed after the Lex Calpurnia. The Lex Junia was passed probably about B.C. 126, on the proposal of M. Junius Pennus, tribunus plebis. We have no information respecting its contents, but it may possibly be the lex under which C. Cato, Proconsul of Macedonia, was living in exile at Tarraco (Cic. pro Balbo, 11, 28; Veil. Pat. 2.8); for at least exsilium was not a penalty imposed by the Calpurnia Lex. The Lex Servilia Glaucia was proposed and carried by C. Servilius Glaucia, tribunis plebis B.C. 100. This lex applied to any magistratus who had improperly taken or received money from any private person; but a magistratus could not be accused during his year of office. It perhaps only included provincial magistrates, being extended to urban by a subsequent statute (Cic. pro Rabir. Post. 6, 13). The Lex Servilia enacted that the praetor peregrinus should annually appoint 450 judices for the trial of this offence: the judices were not to be senators. The penalties of the lex were pecuniary and exsilium; the law allowed a comperendinatio (Cic. in Verr. 1.9, 26). Before the Lex Servilia there was simple restitution of what had been wrongfully taken, and also the summa sacramenti forfeited to the state: this lex seems to have raised the penalty to double the amount of what had been wrongfully taken; and subsequently by the Lex Cornelia it was made quadruple. Under this lex were tried M. Agillius, P. Rutilius, M. Scaurus, and Q. Metellus Numidicus. The lex gave the civitas to any person on whose complaint a person was convicted of repetundae (Cic. pro Balbo, 23, 24).

The Lex Acilia, which is of uncertain date (probably B.C. 101), was proposed and carried by M‘. Acilius Glabrio, a tribunus plebis. It made some changes in the procedure of trials for repetundae, enacting that there should be neither ampliatio nor comperendinatio. It is conjectured that this is the Lex Caecilia mentioned by Valerius Maximus (6.9, 10), in which passage, if the conjecture is correct, we should read Acilia for Caecilia (Cic. Act. i. in Verr. 17, 50). It is a subject of dispute whether the Acilia or Servilia was first enacted, but it appears that the Acilia took away the comperendinatio which the Servilia allowed.

The Lex Cornelia was passed in the dictatorship of Sulla, B.C. 81, and continued in force to the time of C. Julius Caesar. It extended the penalties of repetundae to other illegal acts committed in the provinces, and to judices who received bribes, to persons abetting the crime into whose hands the money came (quo ea pecunia pervenerit, Cic. pro Rab. Post. 4, 7), and to those who did not give into the Aerarium their proconsular accounts (proconsulares rationes). The praetor who presided over this quaestio chose the judges by lot from the senators, whence it appears that the Lex Servilia was repealed by this lex, at least so far as related to the constitution of the court. This lex also allowed ampliatio and comperendinatio. The penalties were pecuniary (litis aestimatio), and the form of banishment called aquae et ignis interdictio. Under this lex were tried L. Dolabella, Cn. Piso, C. Verres, C. Macer, M. Fonteius, and L. Flaccus, of whom the last two were defended by Cicero. In the Verrine Orations Cicero complains of the comperendinatio or double hearing of the cause, which the Lex Cornelia allowed, and refers to the practice under the Lex Acilia, [p. 2.543]according to which the case for the prosecution, the defence, and the evidence were only heard once, and so the matter was decided (in Verr. 1, 9). The last Lex de repetundis was the Lex Julia passed in the first consulship of C. Julius Caesar, B.C. 59 (Cic. in Vat. 12). This lex consisted of numerous heads (capita), which have been collected by Sigonius (Cic. Fam. 8.8). It repealed the penalty of exsilium, but, in addition to the litis aestimatio, it enacted that persons convicted under it should lose their rank, and be disqualified from being witnesses, judices, or senators. This is the lex which was commented on by the jurists, whose expositions are preserved in the Digest (48, 11) and in the Code (9, 27). The Lex Julia was an act embodying provisions that existed in previous laws, as, for instance, that by which the money that had been improperly retained could be recovered from those into whose hands it could be traced. It contains provisions prohibiting governors of provinces from contracting debts and entering into other legal transactions within their provinciae, with which Mr. Justice Stephen compares (Hist. of Criminal Law, i. p. 22, 1st ed.) the rules prevailing in India, which prevent civilians from holding land in their own districts and from receiving presents.

The Lex Julia had been passed when Cicero made his oration against Piso, B.C. 55 (in Pis. 21, 50). A Gabinius was convicted under this lex. Many of its provisions may be collected from the oration of Cicero against Piso. Cicero boasts that in his proconsulship of Cilicia there was no cost caused to the people by himself, his legati, quaestor, or anyone else; he did not even demand from the people what the Lex (Julia) allowed him.

Under the Empire the offence was punishable with exile (Tac. Ann. 14.28, and the note of Lipsius). It was treated under the Antonines as a crimen extraordinarium, except in very grave offences, when it was punished with death. (Walter, Geschichte d. röm. Rechts, 2.814; Rudorff, Geschichte d. röm. Rechts, 2.120; Rein, Criminalrecht, 604, &c.; Geib, 2.40-42; Zumpt, de legg. judiciisque repetundarum in republica Romana.

[G.L] [E.A.W]

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