Note 634 — CXLVIII (A IV, 17 AND PARTS OF 16)

There is considerable uncertainty as to the exact nature of iudicium tacitum, here rendered "a trial with closed doors," on the analogy of the senatus consultum tacitum described by Capitolinus, in Gordian. ch. xii. It is not, I think, mentioned elsewhere (iudiciis tacitis of 2 Off. § 24, is a general expression for "anonymous expressions of opinion"), and the passage in Plutarch (Cato min. 44) introduces a new difficulty, for it indicates a court in which candidates after election are to purge themselves. Again, quæ erant omnibus sortita is very difficult. Cicero nowhere else, I believe, uses the passive sortitus. But, passing that, what are the consilia meant? The tense and mood shew, I think, that the words are explanatory by the writer, not part of the decree. I venture, contrary to all editors, to take omnibus as dative, and to suppose that the consilia meant are those of the album iudicum who had been selected to try cases of ambitus, of which many were expected. There is no proof that the iudices in a iudicium tacitum had to be senators, and the names in the next sentence point the other way. The senate proposed that the law should allow this selection from the album to form the iudicium tacitum, which would give no public verdict, but on whose report they could afterwards act.