¹ It is not easy to draw a sharp line between civil and criminal proceeding in the Republic. The question is essentially: Could a private person bring against an ex-magistrate, in respect of acts done under cover of the imperium, such an action for damage, before the courts, as would have been done by another private person ?

² Praetor und Formel, 50. There are texts in the sources which speak of the ordinary type against magistrate (e.g. C. 5. 75; D. 27. 8; 9. 2. 29. 7; 47. 10. 15. 39, etc.). But these are municipal magistrates, who have not the imperium.

³ Kuebler, P-W. s.v. ‘Maiestas.’

⁴ Mommsen, Staatsr. i³, 22 ff.

⁵ Livy viii, 7. See also, as to potestas, De Visscher, Studi Perozzi, 399 ff.

⁶ Radin, Studi Riccobono, ii, 23 ff.

⁷ Wenger (Stroux-Wenger, cit., 136) observes that the leges applied only to acts of officials; private persons were under the ordinary law. The inference would be that the magistrate was not under the ordinary law. The view diffidently taken in this paper is that this was so for the magistrates to whom the scheme originally and primarily applied, though there were extensions the convenience of which is plain (Mommsen, Strafr. 708 ff.).

⁸ von Premerstein (Zeitschr. d. Sav. Stift., xlviii, Rom. Abt. 1928, 509Google Scholar) appears to adopt the view that the procedure de repetundis applied only to acts done officially.

⁹ von Premerstein (Zeitschr. der Sav. Stiff., Rom. Abt. 1928, 509) thinks the reconstruction probable, but does not seem to regard it as implying an ordinary private suit.

¹⁰ Plutarch (Caesar, 4) tells what seems to be the same story and makes it a quaestio; but as Mommsen points out, his story is full of errors.

¹¹ Cicero, Verr. ii, I, 38 (97)— ‘periculo litium’ and 2, 3, 65 (152).

¹² In this speech 19 (45)—21 (50), there is an account of the complaints of one Heraclides. They turn on alleged misdoing of Flaccus, as propraetor of Asia. Heraclides was presistent in his not the slightest hint of any ordinary civil action against Flaccus himself, though he was out of office. There was indeed an action against C. Plotius, who had at some time been legate in Asia, but this was not on account of any misdoings as legate, or even while he was legate, but because he had become in some way involved, at a later time, in the affairs under Flaccus of which Heraclides claimed to have been unjustly deprived. The text of the remarks about Plotius is not very good; and an ‘erat’ wnere ‘esset’ might have been expected may suggest that this is another story and that Plotius is sued as ex-magistrate. But it is hardly possible to read the story in this way.

¹³ See the references collected by Rutondi in Leges publicae populi Romaini, 292.

¹⁴ Mommsen, Strafr. 721.

¹⁵ See 1,3 (7); 1,5(13); 1, 18 (56); 2, 1, 3 (7); 2, 1, 4 (9, 10); 2, 1, 5 (13), etc.

¹⁶ A text in the Digest (47, 10, 32) is, as it stands, decisive against the view expressed in this paper. It tells us that if a magistrate commits an iniuria under colour of his magistracy, an action will lie, but that unless he is a minor magistrate, which the text then defines as one without imperium or potestas, the action must await the end of the magistracy. But the reference to imperium and potestas is a gloss (Lenel, Palingenesia, ii, col. 1172). The text, of Ulpian, belongs even in its original form to a much later date, and referred probably to municipal magistrates. (It may be compared with D. 9, 2, 29, 7, which is expressly confined to municipal magistrates.) It is not cited by Mommsen or, as it seems, in any other discussion of the question.

¹⁷ See D. 49, 3, 2, and the further references, Mommsen. Strafr. 54.