REPETUNDAE
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]
