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The Process ‘De Repetundis’

  • M. I. Henderson

Extract

In JRS XXXV, 1945 (p. 98), Mr. Hugh Last proposed that any further discussion of the SC Calvisianum appended to the fifth edict of Cyrene should start from a review of the Republican law of repetundae and of Mommsen's doctrines in Röm. Strafrecht (SR) 705 f. This service was performed by Mr. A. N. Sherwin-White in PBSR 1949, 5 f. The object of the present article is not to re-argue the controversy (Mommsen's errors have too often been the dragon's teeth), but to inquire into the terms of the problem.

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1 On SEG IX 8, 1. 84 f. (SC Calvisianum), see de Visscher, F., Les Édits d'Auguste découverts à Cyrene (Louvain, 1940), with bibliography (pp. 13–16), to which add J. H. Glover, Mem. Amer. Ac. Rome, 1949, 103 f., and Sherwin-White, PBSR 1949, 5 f. Of the law of repetundae generally the bibliography cannot be special or selective, but the best monograph is still Zumpt, C. T., De legibus iudiciisque repetundarum in Republica Romana commentationes duae (Berlin, 1845); comm. tertia (1847); cf. also Strachan-Davidson in EHR 1901 (reviewing Mommsen, SR) and in Problems of the Roman Criminal Law, ch. XIV.

2 It is enough to refer to Strachan-Davidson, Problems of the Roman Criminal Law, II, ch. XIV, and Sherwin-White, o.c. (n. 1).

3 ap. Cic. De or. I 225. Sherwin-White, o.c, 8, n. 20, takes the comment (‘quod sapienti negant accidere posse’) to imply that death was not the technical penalty of the law, but no such implication seems present. On Cicero's own language, see o.c., 9–10, where the reference to death is candidly admitted, but the cause not explained.

4 Val. Max. IX 12, 7; Cic. Ad Att. 1, 4, 2 referring to Macer as ‘damnatus’. It is not clear whether Cicero actually broke off the trial without formal conclusion (as Valerius seems to imply) or merely refrained from seizing the property.

5 Bruns Fontes 7, 10 (here assumed to be the Gracchan Lex Acilia), ll. 29, 57.

6 De dom., esp. 43–7. A rogatio must not prejudge poenae: it asks for the People's iudicium on poenae to be demanded by the accuser. The rogatio Clodia, having cut out the iudicium, was a privilegium, and Cicero was expelled by vis instead of choosing exilium from two legal alternatives. The further point that a reus indicted would be considered exul if he fled before the iudicium is relevant but distinct.

7 Pro Caec. 100. Vincula and ignominiae do not occur as legal poenae by themselves, but only with others; that Cicero means capital poenae is indicated by his further explanation: ‘si in civitate legis vim subire vellent, non prius civitatem quam vitam amitterent’ (cf. Polyb. VI 14, 7). He seems to be merely defining his initial description of exile as a refuge from ‘aliqua poena aut calamitas’ (see p. 73, n. 14).

8 Cic. Pro Balb. 28–9. Strachan-Davidson, o.c. II, 24 f., does not distinguish the three mutationes.

9 These points are seldom faced by those who adduce psychological motives for ‘exilium’. Roman political refugees did not give up their civitas.

10 Levy, ‘Die röm. Kapitalstrafe’ (Sitz. Heid. Ak. Wiss., ph.—h. Kl., 1930–1) seems to identify aquae et ignis interdictio with compulsory exile; but cf. Cic. De dom. 78. Interdictio does not technically supplant the poena capitis, but induces and sanctions exilium by placing the reus in a situation where, if he does not cease to be a citizen, death at the hands of other citizens may (and will) follow. Sullan statutes say De eius capite quaerito qui, etc.; but for certain capital crimes the form of interdictio was specified (Ulp. Coll. XII 5; Dig. XLVIII 8, 2, 5; 10, 33). It was rarely used before, and is never attested in cases de repetundis.

11 Trist. V 11 9—the only record of formal recognition in a quaestio, though it may have been regular after Sulla. Livy records formal recognition of exilium by the plebs in connexion with two indicia populi, which sounds illogical and suspicious (XXV 4, 9; XXVI 3, 12). Strachan-Davidson is certainly not justified in treating such recognition as regular in early times (o.c. II, 29), and no reason for it is apparent before Sulla and interdictio. Major trials were rare, the community still small, and the reus known: he could not return incognito.

12 XXXIX 52. The facts were unknowable (XXXVIII 56), but are here immaterial. Cicero knew that a man escaping a capital indictment was an exul (De fin. II 54): Livy requires formal recognition or compulsion —without which Scipio cannot be exul and must be dead. The controversy between Strachan-Davidson (o.c. II, ch. XVI) and Mommsen represents two current ideas in Rome: Cicero's correct theory versus Livy's practical and popular notion.

13 Fr. 97 (Exc. De virt. et vit.—i.e. third-hand from Livy).

14 e.g. Cic. Pro Caec. 100, circumspectly stresses the formal choice of the reus: he might, after all, go into exile before the accusation was defined. Contrast the more rigid concept of Livy, l.c., or Clodius (De har. resp. 17).

15 Val. Max. VI 9, 10. Emendation of Lex Caecilia to Lex Calpurnia is wilful: ‘lex’ does not imply a quaestio perpetua in the Livian tradition (cf. Livy XLII 21–2).

16 Cic. ap. Asc. 78: ‘O miser qui non sentias [subj.] illo iudicio te non absolutum verum ad aliquod severius iudicium ac maius supplicium reservatum’—tentatively referred by Sherwin-White to a further trial with a heavier penalty (o.c. 11–12). I take it: ‘O wretch to be insensitive’—to that law ‘cui qui non parebit … hoc ipso luet maximas poenas, etiamsi cetera supplicia, quae putantur, effugerit’ (De r. p. III 33).

17 On infamia see Zumpt, o.c. (1), 13, 26; Sherwin-White, o.c, 7. Degradation is not a poena legis repetundarum, but a general law or regulation in case of public condemnation: it is always expressed as requiring censorial or senatorial action beyond the iudicium that occasions it. Lex Acilia, l. 13, should be restored: ‘quei <quaestione ioudiciove populi conde>mnatus siet quod circa eum in senatum legei non liceat,’ with reference to the Lex Cassia of 137 (not ioudicio puplico). Caesar's action shows that laws of infamia had been disregarded; Plin. Epp. IV 9, 1619, that the imperial Senate normally respected them, but not that infamia was specified in a lex repetundarum.

18 The usual terminus ante quem of 82 B.C. assumes that (a) any document is written simultaneously with the latest dateable event mentioned in it (true only of the daily newspapers); (b) the reference to Cicero is interpolated; (c) the Ad Herennium is a political pamphlet. An honest review of the problem (with that of the De inventione) is badly needed.

19 If Gaius IV 19 (fr. 17a) refers to this Lex Calpurnia (against Mommsen, see Strachan-Davidson, o.c. II, 5-6). The term condictio is imperial: the principle of course existed before, but Gaius is not even attempting to summarize the Calpurnian process in affixing this label to a feature of it.

20 SEG IX 8, l. 97. See below, p. 86; also Sherwin-White, o.c. (following Last, JRS 1945, 97–8); Stroux, Abh. Bayer. Ak. ph.-h. Kl. 34, 2 Abh. 1928, 112 f. I am here concerned to present the prima facie evidence, reserving the interpretation.

21 Plin. Epp. II 11, 2; 19, 8. That Pliny and Tacitus nevertheless adopt the purely pecuniary connotation of the word repetundae proves that this connotation no longer represented the Lex Julia.

22 Cic. In Pis. 50 (see below, p. 77).

23 In Caec. div. 18; cf. Buckland, JRS 1937, 37 f. His principle that a public iudicium was required for trial of magisterial acts is sound; but could a magistrate ever act ‘in his private capacity’? In this matter the Lex Acilia equates all senatorii with magistrates, and cives with socii: if a non-capital process existed from Gracchus to Sulla, its use must have depended on the charges or on the choice of the plaintiffs.

24 Hardy mistranslates l. 28: ‘[q]uei pequniam ex h. l. capiet,’ as ‘who shall receive money in accordance with this law’, taking it to refer to pecunia capta below the actionable minimum (Roman Laws and Charters, 19). The law does not command anybody to ‘capere pecuniam’ below the minimum. Ex hac lege means ‘as defined in this law’, and l. 28 is clearly the famous exemption of non-senators (cf. Cic. Pro Cluent. 153; Pro Rab. Post. 12 f.).

25 Lex Acilia, ll. 3, 29; 57 and 66 (cf. Cic. Pro. Rab. Post. 37). Rutilius, notoriously, was found after condemnation to possess altogether less than the sum of extortions on which he had been condemned (Dio, p. 97); see also below, p. 85.

26 SR 725 with n. 3; but neither Mommsen nor his successors seem to have appreciated the order of events in the process, which is plainly enough attested (see above, n. 25). The reus is condemned not on claims proven but on a sum named in advance (possibly in the multae irrogatio of l. 34), and does not get back any change after the litis aestimatio.

27 Cic. De dom. 45, ‘ne poena capitis cum pecunia coniungatur,’ applies to the illegal rogatio Clodia, but see below, p. 78 f.

28 As in some modern Continental criminal statutes. On the legal principles here involved, see below, p. 82 f.

29 Cic. Pro Rab. Post. 8–9. Sherwin-White does not press the words ‘severius scripta’, nor De off. II 75 on the gradually increasing harshness of the laws (o.c. 12); but the hypothesis that the Lex Julia nevertheless introduced so startling an innovation as the poena capitis is unwarranted by any source. His conception of a ‘scale of penalties’ seems too complex: only the pecuniary poena was scaled, and its quantity cannot have affected the poena capitis, which (where involved) took effect before the estimate. Infamia was not a poena legis repetundarum (above, n. 17).

30 Plin. Epp. II 11 2; 19, 8. Tac. Ann. XIII, 52 speaks of a case dismissed by Nero as of ‘saevitia magis quam pecuniarum captarum’, but without applauding the dismissal. On the conjunction of the two, see Sherwin-White, o.c.

31 Cic. I Verr. 56.

32 Cic. Pro Cluent. 103–4, 112. Falcula was acquitted prima actione on the vis charge; this was not formally an acquittal on the corruption charge (104) but was so by implication (112). The corruption charge must have been reserved for a second actio which never took place (distribution of charges between two actiones was not controlled by law: 1 Verr. 55—though Hortensius complained that some charges should be reserved: 11 Verr. 1, 24 f.). Falcula's case proves that comperendinatio (which is demanded by the accuser) did not exclude acquittal prima actione: it was a compromise by which the reus could neither be condemned on a single actio nor ampliated beyond a second, though he could be acquitted on either.

33 Cic. I Verr. 56; Pro Flacc. 86.

34 Cic. Pro Cluent. 154 and 148; Pro Rosc. Am. 30. The Lex ne quis iudicio circumveniatur— ‘tune Sempronia, nunc Cornelia’—is clearly Gracchan by its content and its definition of rei (cf. Lex Acilia, l. 2 with Pro Cluent. 148—also 151: ‘C. Gracchus tulit … pro plebe non in plebem’).

35 A new res iudicata may reverse law based on an old; a new activity (e.g. of sodalicia) may be made criminal; a statute may re-define vague terms (caput, maiestas, parricidium), but does not change the substance of established law.

36 II Verr. 111, 83. Against De Visscher's modern concept of a quaestio as a department of specific crime (o.c, 171), see Greenidge, Legal Procedure of Cicero's Time, 417–18. It is true that a private claim could be brought in respect of an act which could also be a public crime, but the aspect judged is then determined by the nature of the process, not of the act in itself; and the nature of the process de repetundis is not simple.

37 Cic. De fin. II 54 (Tubulus; cf. Ad Att. XII 5, 3, for Cicero's care on the point); II Verr. 111 205; Pro Cluent. 104. On Livius Drusus' law of 91 B.C., see below, p. 83, n. 77.

38 In the second instance here, capitis may be taken as genitive with aestimaretur, but not in the first: ‘si quae in eum lis capitis illata est, non admittunt.’ It must be a short-hand technical term. Emendation of ‘non admittunt’ is unnecessary. Cicero is simply explaining that iudices are careless in admitting or rejecting lites once the iudicium is over: they may admit a ‘lis capitis’ and then acquit the reus in the subsequent trial, or not admit it for fear of giving further offence to a reus damnatus by suggesting a new and capital trial.

39 Here it must suffice to say that Cicero denies it (Pro Cluent. passim, e.g. 164). For Falcula's trial, Pro Cluent. 104.

40 Above, n. 38. It occurs only in this passage.

41 On the assumption that a damnatus de repetundis paid only claims proved and awarded, it has been fantastically supposed that at the litis aestimatio he could be made to pay damages on charges not proven against him, or even submitted to a poena capitis without judgment; but see above, p. 75 and nn. 25, 26. The whole passage, Pro Cluent. 115–16, has been made unintelligible by the current hypothesis of the Lex Repetundarum.

42 Cic. Pro Rab. Post. 8–11, 36–37, is complaining that this correct procedure was not followed: therefore Postumus' case is an ‘appendicula rei iudicatae’.

43 Pro Rab. Post. 11.

44 Cic. In Pis. 50 (cf. Greenidge, Legal Procedure, 417–18). For the relation of the lis to the public charge (e.g. of maiestas), see below, p. 79 f.

45 Cic. Pro Rab. Post. 6; Suet, DC 16.

46 See below, p. 87 f.

47 Ann. IV 19–20.

48 Dig. XLVIII 4, 11. No trace of such definition in Cicero or Livy. ‘Maiestas minuta’ comes nearest to Greek προδοσία or modern treason, but Rome long resisted any idea of a positive ‘State’. On late imperial ‘proditio’, see Mommsen SR, 547 f. Brecht, , Zur Abgrenzung des Begriffes Perduellio (Diss. Munich, 1938) is fanciful and uncritical of sources. The Lex Cassia may have named ‘perduellio’ (Cic. De legg. III 36), but in 63 Cicero thought ‘perduellio’ had gone out with the kings (Pro Rab. perd. 10), and the term—let alone the Begriff—may not have been legally used till 63 B.C. Either way, between 63 and any earlier process called by the name (whether at the time or later) there is a break of tradition. Survival of concepts without cases must not be assumed. I hope to discuss this elsewhere.

49 Livy XXVI 2–3: the fact of the trial and innovation need not be questioned, but primary sources cannot be postulated, and the prototypal case has obviously been re-stated in terms of later juristic principles. The conflation of procedures in 63 is enough proof that no continuous records were available.

50 Mommsen SR 191 and n. 1 (citing Macer, , Dig. XLVII 15, 3, 1). In SR 1015, n. 2, he takes Livy's legibus to connote caput and moribus to connote pecunia. The opposite is likelier, and the chiasmus is explicable, since the pairs legibus-moribus and caput-pecunia are irreversible as phrases. Mores would then refer to the added capital accusation, of undefined criminal scope. I here assume that the Livian account and the decree cannot be verbally authentic.

51 Mommsen, SR, 728, curiously lapses from Roman legal definitions and logic.

52 cf. SEG IX 8 (fifth Cyrene edict), l. 94.

53 II Verr. V 25; presumably compensation was paid for any form of saevitia on the usual principles of private suits, reflected in the XII Tables.

54 Pro Flacc. 27.

55 II Verr. III 194.

56 Pro Flacc. 33.

57 Plin. Epp. II 11, 2.

58 Nor could Livy (X 9, 6). Mommsen goes a little too far (SR 167): the formula is the consul's denouncement of magisterial conduct as actionable— followed by impeachment (as in Asc. 51). It was superseded by processes independent of consular sanction, but shows that formal authority was early required for judgment of magisterial acts.

59 On the issue and procedure Cicero is authoritative (esp. De or. I 227, Brut. 89, Pro Mur. 59— spoken to Galba's great-grandson): divergent sources may be discounted. Cf. Scullard, Roman Politics 20–150 B.C. (1950), 235.

60 XLIII, 2—a fairly precise account, related no doubt to Augustan interests, but without obvious intervention of later juristic ideas.

61 cf. Mommsen, SR 724.

62 It does not occur from C. Gracchus to Augustus (cf. Last, , JRS XXXV, 1945, 98).

63 Cic. De or. II 107, doubts whether the various and admitted crimes of Norbanus constituted maiestas minuta—as defined by Sulla. It is not necessary to suppose that the Mamilian, Appuleian, or Varian rogations limited the indictment to the new and special terms of reference (see below, p. 85).

64 Cic. De dom. 43–7. A special rogatio was not, of course, necessary unless the case required new definition.

65 Cic. De fin. II 54. The ‘rogatio Petillia’ (Livy XXXVIII, 54–5) will not be taken seriously.

66 Cic. De or. II 107.

67 If any, procedural (Livy XLIII 2); at most, so far as we know, ‘more maiorum animadvertendum’ (Val. Max. IV 7, 1)—assuming the praetor's knowledge of law.

68 Sallust and Livy are indiscriminate, Cicero generally careful (as in De fin. II 54).

69 Mommsen's definitions are sometimes arbitrary and misleading (e.g. Jur. Schrift. III 380), but SR 180–200 contains clear distinctions between the meanings of iudicum publicum at different times.

70 Cic. De legg. III 36 (more commonly, he says ‘genus iudicii’).

71 Strachan-Davidson, o.c. I 132 f., II 16 f. (his own view is a modification of Mommsen's).

72 Jur. Schrift. III 466; cf. SR 135 f. In fact, since there is no ‘sentence’, there is no ‘right of punishment’ to appeal against: it is the right of judgment that is in question.

73 SR 258 f., 632 f. The problems of the two laws cannot here be pursued, but the points involved must not be confused. Judgment de capite is never expressed as a right of the People (despite Polybius' loose statement, ὁ δῆμος … θανάτου κρίνει μόνος: VI 14, 6). If we regard the lex ne de capite C.R. iniussu populi iudicetur as established by the condemnation of Popillius, it does not follow that the provocatio is quashed where the People commands it, nor that a statute can prescribe poenae in the manner envisaged by (e.g.) Strachan-Davidson, o.c. II, 48 f. Underlying many modern treatments is a confusion between the citizen's right to capital trial by the People (which was long obsolete) and the punitive iudicium populi for violation of provocatio by a magistrate (which is the dominant aspect from the Porcian laws onwards).

74 De legg. III 6. The old tendency to regard Cicero's political works as antiquarian or Utopian essays should need no refutation (for De r.p., see Cic. Ad Q. f. III 5, 1–2; Ad Att. VIII 11, 1; Plut. Cic. 8).

75 De legg. III 8; Ad Q. f. 1 2, 10; Strachan-Davidson, o.c. 1 ch. IV.

76 Cic. De fin. II, 54; Dig. XLVIII 8, 1, 1.

77 Diod. XXXVII, 16 (quoting a speech of Drusus); Cic. II Verr. III 205, Pro Cluent. 104.

78 In Lex Acilia 46, all usage discredits the restoration: ‘Pr. quei e<x> h. l. iu <dicium exercebit …>,’ but even were it correct, it would not say that the praetor judges.

79 Lex Acilia, ll. 4, 6 (cf. 3 and 5 as restored).

80 Lex Acilia, ll. 19, 60 f. Zumpt, (Criminalrecht II i, 161) at least perceived the duality and attempted some explanation, but did not notice that the iudices are responsible for the aestimatio as well as the iudicium. In ll. 3–19, 20–60, the praetor is not iudex.

81 Pro Flacc. 4 (cf. Pro Mur. 2).

82 The passage is often misunderstood. Tacitus does not care whether the procurators were equites or liberti (they might be either), but whether power was dissociated from imperium. The thought, if rapid, is coherent; on the matter, Tacitus will not be accused of ignorance.

83 SR 4 (with n. 3), 525, etc. Mommsen was of course involved in contradictions, which cannot here be traced. In particular, while he could distinguish quaerere from iudicare, he could not dissociate them (e.g. SR, 135).

84 Whether or not separate processes were provided for capital and non-capital cases. For a new case a rogatio is necessary, but the poenae are then established by the iudicium, not by the rogatio. The statute is a standing relatio for inquiry into a case, not a rogatio for a judgment to establish new law—nor, if it were, could it presume poenae.

85 Lex Acilia, l. 34. Hardy's explanation (o.c, 20) that the clause concerns imposition of fines on witnesses is incredible, but the procedure cannot be explained with certainty.

86 Cic. In Caec. div. 17: it will not be supposed that claims of cives were admitted, nor that the reus was defined in the Gracchan terms, before the Lex Acilia.

87 Lex Acilia, l. 31 and 2; C. Gracchus, ap. Gell. X 3, 3.

88 Cic. Pro Cluent. 116.

89 Rather than the division of Senate and ‘equites’. (cf. the traditional and presumably Gracchan clichés of popularis oratory: e.g. Sall. BJ 41).

90 So Strachan-Davidson, o.c. II 13. The sources are Vell. II 8; Cic. II Verr. III 184 (cf. ibid, IV 22: the Mamertines are somehow involved, which suggests a wide range of charges); Brut. 128.

91 Lex Acilia, l. 3 (restored, but the fact is not in doubt).

92 If so, the minimum of Lex Acilia, l. 3, would be above the estimate of Cato's lis (HS 8000).

93 SR 198, n. 1. The term suggests a special rogatio—e.g. ‘uti quaereretur in eos quorum opera maiestas p. R. minuta esset’. Stuart Jones (JRS 1926, 171 f.) gives no cogent reasons for identifying the Latin law of the tablet of Bantia with a Lex Appuleia maiestatis.

94 As invariably after C. Gracchus. Modern writers seldom consider the effects of the custom by which the reus prejudges his caput on his own responsibility. In such conditions the penal law is nowhere and never expressed in word or act.

95 So, in ordinary speech, ‘Lex Cornelia vetat’ (Cic. In Pis. 50). But the statute does not say ‘ne quis’ … See above, p. 84, n. 84.

96 Cic. Pro Cluent. 148; Ulp. Coll, I 3, 1 (cf. Levy, o.c. 14 f.). For laws and iudices, Cic. Pro Sulla 63.

97 Cic. Pro Flacc. 4; Pro Mur. 2.

98 See above.

99 Cic. Pro Cluent. 153 (cf. 145): the point is independent of the question what the law actually was.

100 Cic. Phil. I 21–3 (the accuser is liable also, as in the Cluentian case, but only the iudices here concern us). Strachan-Davidson, o.c. II, 48, ignores the argument: if provocatio is extended against aquae et ignis interdictio (which was not a direct judgment of death by the court) the iudices will be dragged before a iudicium populi for condemning in violation of ius provocations. The implications for provocatio against senatorial judgment need not here be discussed.

101 De dom. 43–7 (cf. Greenidge, o.c., 364: the argument is generally valid, apart from the question whether Cicero misrepresents his own particular case). It is hard to see how the theory of positive criminal statutes has withstood this passage, unless by the doctrine of delegation of judicial powers.

102 In my opinion the coexistence of a praetor and a iudex lege Cornelia de sicariis shows that a murder case could be either public or private. Cic. Pro Rosc. Am. 11 indicates a long interval in which only a iudex functioned (cf. ILS 45): i.e. only private suits were brought—presumably since the Gracchan ban on public judgment by magistrates and senatorial quaestiones (Pro Rosc. Am. 64–5 refers to Tarraco not Rome). The XII Tables may have made murder a public crime, but they did not create a public prosecutor. See, however, Strachan-Davidson, o.c. II, 142–9, for another view.

103 Tac. Ann. III 68 (Sherwin-White, o.c., 19).

104 Dessau, , Gesch. d. röm. Kaiserzeit II (1931), 832; De Visscher, o.c. (n. 1), 185. A curious doctrine.

105 SR 252–262 (cf. De Visscher, o.c. 205).

106 Tac. Ann. IV 15.

107 Sufficient data to suggest, if not to prove, this conclusion can be extracted from R. Syme, Roman Revolution, which otherwise discourages the assumption of normality in public life at Rome, 44–28 B.C.

108 Cic. Pro Rab. Post., 16–7.

109 e.g. Tac. Ann. I 74 (cf. XIII 52). ‘Recuperatores’ for ‘iudices’ may have legal significance, or may be literary and Livian.

110 As such it is accepted (Plin. Epp. II 19, 8), but evidently it was not familiar. Such statutes were now archives.

111 Maiestas might be related—e.g. in a claim for corn requisitioned by a proconsul while making war sua sponte and not e re publica—but irrelevant charges were notorious.

112 Plin. Epp. II 11 (cf. 19, 8).

113 Plin. Epp. IV, 9.

114 ibid., IV 9, 17.

115 SR 252. Few cases could therefore be expected in the comparatively well-regulated and ill-documented period of Augustus.

* With thanks to Mr. Hugh Last for discussion and help.

The Process ‘De Repetundis’

  • M. I. Henderson

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