PERDUELLIO´NIS DUOVIRI
PERDUELLIO´NIS DUOVIRI (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. Niebuhr
held that they were the same as the
quaestores
parricidii; 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. 2.525).
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
viri by the king, the account given from Ulpian in the Digest
(
1.13) 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
concilium plebis, 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
viri. Whether
duo viri were
appointed, appears to have been determined in each instance by a special
resolution of the people (Mommsen,
Staatsr. 2.599). Sometimes
they were elected by the people (cf.
D. C.
37.27); 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
viri 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
viri appeared to support their decision, viz. virtually to act as
prosecutors.
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
perpetua dealt with offences of the same nature, under the more
precise definition of
majestas. But the term
perduellio 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
perduellionis reo, with Heitland's introduction and notes.)
[
A.S.W]
