The Prosecution of Magistrates-Designate

IN A VERY WELCOME ARTICLE on Prosecution of Roman Magistrates-Elect (Phoenix 24 [1970] 162-165) Professor D. R. Shackleton Bailey has reiterated and enlarged upon a view previously expressed, correctness of which I had questioned (Phoenix 22 [1968] 51 f.). He holds that in time of Cicero magistrates-designate were immune from prosecution in all quaestiones except quaestio de ambitu, and he appends an extremely useful list of ambitus trials of designati attested in late Republic. On ambitus trials we are in complete agreement, but I had argued that there is no need to assume that electoral bribery was only charge on which designati could be prosecuted.' Shackleton Bailey locates evidence for a general immunity for magistrates-elect in Paulus' list of those who are disqualified from acting as defensores (Dig. 3.3.54), among whom is person qui magistratum initurus est. Since defendere est eandem vicem quam reus subire (Dig. 3.3.51.1 [Ulpian]), Shackelton Bailey infers that magistratum initurus could not be a defensor simply because he could not be a reus. Therefore, he argues, ambitus court in which many Republican designati appear as rei must constitute an exception to rule. This argument is lucid but not completely acceptable. The list given by Paulus also mentions women and chronically ill, and Shackleton Bailey declares that these people could not be rei either. But he presents no evidence that chronically ill could not be sued, and it is known that women were allowed to be rei in iudicia imperio continentia (Ulp. 11.27). The Digest indeed has a long catalogue of those exempt from civil prosecution, composed in large part from a quotation of Ulpian (Dig. 2.4.2, reproduced below, 147). Ulpian's list of ineligible rei and Paulus' list of disqualified defensores are so different that one cannot reasonably suppose that they enumerated people of identical liability. Ulpian, for instance, does not mention chronically ill at all, and only class of women in his list is bride (eam quae nubat), thus creating unmistakable impression that all other women could be summoned. This seems to tell heavily against Shackleton Bailey's contention that the classes of people excepted by Paulus... were disqualified as defensores

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• Cato and the Courts in 54 b.c

  Open Access•Kit Morrell•The Classical Quarterly•2014

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