An unusual legal proceeding in 61 BCE

A quaestio extraordinaria tried P. Clodius in 61. The offense was exceptional in every regard. Clodius had allegedly participated incognito in the feast of the Bona Dea, a ritual open only to female celebrants. The violation constituted an affront to the gods. Nothing resembling a precedent for such a case could be uncovered, and no guidelines to determine proceedings. The question was referred to the Vestals and to the priests, as stewards of the state religion. They pronounced simply that an offense against the gods had been committed. Under other circumstances that might have been the end of the matter. No compelling reason demanded secular intervention. But Clodius was a politician of note, with a dubious reputation and a host of enemies in the senate. Hence, pressure arose for a judicial proceeding. No standing court existed, of course, with jurisdiction over such offenses. A senatorial decree, therefore, instructed the consuls to bring a bill to the assembly instituting a quaestio extraordinaria. Debate and dissension ensued in the senate, and the contest spilled over into public meetings and the streets.

The intensity of the political clash engulfed any impartiality on the legal question. The senatus consultum called for a special court, for which the praetor would handpick a jury. Its object was little short of inquisitorial procedure. Feelings ran high against Clodius, and the measure received overwhelming senatorial backing. Clodius’ supporters objected; M. Piso and Curio fought against the decree, and a tribune, Q. Fufius Calenus, exercised his veto against it. Matters reached an impasse. A way out was found by Hortensius. He persuaded Fufius to drop his veto and to introduce a new bill himself. It was identical with the consular measure except for the constitution of the jury. The praetor would not have a free hand in appointing jurors; presumably, the customary and impartial operation of the lot would select the bench. Fufius’ proposal passsed.

The affair produced the one known quaestio extraordinaria directed at a single individual in the Ciceronian age. Explosive political motives kept this case out of the realm of traditional criminal legislation from the beginning. Reluctance to establish permanent procedure in a matter that belonged more properly in the religious sphere may also help to explain the ad hoc proceeding. The exception, in fact, throws the rule into relief. For even this instance, enmeshed as it was in politics and personal enmities, produced a tribunal constituted by traditional regulations governing the standing courts. The Romans tended to eschew ephemeral arrangements. Criminal statutes were designed for the future as well as for the present.

Erich S. Gruen, The Last Generation of the Roman Republic (University of California Press, 1974), 248-249