Additional statutory relief: repetundae and maiestas

Until the very end of the second century the repetundae laws were only concerned with restitution—twofold under the lex Acilia but reverting to simple repayment after that⁶⁴—plus infamia.

The second wave opens with the lex Servilia repetundarum carried by the tribune C.Servilius Glaucia in 104 or 101 BC.⁶⁵ That law was used in 92-91 against Aemilius Scaurus, and also against the cardboard Stoic saint, Rutilius Rufus. Both were involved in dubious trafficking with Mithridates of Pontus in the course of which money changed hands.⁶⁶ But the best attestation of the treasonous activities version is in a speech delivered by Cicero in 55:

[L.Calpurnius Piso cos. 58] left his province of Macedonia, led his army out of it, waged war on his own authority and entered a kingdom without the authority of the Roman people or senate, all acts that are expressly forbidden by a number of ancient laws, and also by Sulla’s maiestas law and Caesar’s repetundae law.

(Pis. 50)

It is quite clear that Caesar’s repetundae law, the lex Julia repetundarum of 59 BC, incorporated treasonous provisions that Cicero also ascribes to Sulla’s maiestas law. Sulla also enacted a repetundae law, but apart from the fact that Verres was tried under it, and that it continued the repetundae tradition of giving relief only to non-Romans (against the depredations of governors), we know very little about its content.⁶⁷ At all events, Caesar’s law was the most comprehensive of the series, providing in detail for both restitution and a capital penalty, the latter in respect of both maiestas and saevitia against individuals or communities.⁶⁸

The full scope of Caesar’s law is illustrated by the trials of A. Gabinius, who was consul with Piso in 58 and proconsul in Syria over 57-54. Gabinius, a close associate of Pompey, earned at least two prosecutions in 54 as a result of his involvement in the restoration of Ptolemy Auletes to the Egyptian throne.⁶⁹ Gabinius left his province without authority, invaded Egypt without authority and in breach of the Sybilline Books and a senatorial veto, restored Ptolemy, collected a bribe of 10,000 talents that Ptolemy had offered, and delayed handing over his province to his successor.⁷⁰

Gabinius was charged under Sulla’s maiestas law, but the intervention of Pompey and the distribution of bribes to the jury secured him an acquittal, though only by the narrow margin of 38 votes to 32. He was later tried under Caesar’s repetundae law. The same unauthorised acts in Egypt were brought up, but this time they were linked to his receipt of the 10,000 talents. The maiestas case had a different criterion, namely that the acts were calculated to diminish the maiestas of the Roman people. The different criteria ruled out any question of the second trial breaching the rule against double jeopardy.⁷¹ Dio says that Gabinius was astonished at the outcome: money had acquitted him in the first trial but had convicted him in the second (Dio 39-55.5-6).

Gabinius was sentenced to a fine of 10,000 talents. This was the litis aestimatio, the assessment of restitution made by every repetundae jury,⁷² except that in this case the money stayed in the state treasury instead of being paid out to claimants.⁷³ Gabinius may have also been given a capital sentence. Dio reports a homicidal public reaction against him. At his first trial the people wanted to lynch him or convict him in absentia, and after his acquittal they wanted to lynch the jurors (Dio 39.61-3). He did go into exile (ibid. 39.63.5), though this may have been because of his inability to pay the fine rather than because of a capital penalty.⁷⁴