16 Maiestas in the Late Republic:Some Observations

ROBIN SEAGER (LIVERPOOL)

INTRODUCTION

The Digest title 48.4, Ad legem Iuliam maiestatis is strikingly short. Nor do the texts that go to make it up suggest any profound or prolonged juristic interest in the subject.

There is, however, one text that may afford a clue to the understanding of republican laws of maiestas. In D. 48.4.7.3 Modestinus tells us that temerarii should be pardoned, like insani, if their crime is not such, “quod vel ex scriptura legis descendit vel ad exemplum legis vindicandum est”. Thus, for him, possible cases of maiestas appear to fall into three classes: (1) those specifically men­tioned by the law; (2) those which might be assimilated by analogy to cases specifically mentioned by the law; (3) others, totally undefined.

What were these others, if they were neither specifically catalogued in the law nor obviously assimilable to offences that were so catalogued? Presumably acts which could never the less be plausibly or at least possibly presented as dimin­ishing the maiestas of the Roman people.

the lex Appuleia

The first general law of maiestas was passed, probably in 103, by the tribune L Appuleius Saturninus.^[369] Saturninus was a popularis, seeking to assert the right of the people to legislate, to administer public affairs and to control and chastise its appointed officials, in total independence of the Senate. Two questions need to be answered. First, did the lex Appuleia maiestatis catalogue specific offences? Secondly, was it never the less possible to bring prosecutions under it that arose from actions not listed in that catalogue?

That the answer to the first of these questions is positive is strongly suggested by a text of Cicero (Pis. 50). There the orator lists a series of offences allegedly committed by A Gabinius in Syria and says that these actions were expressly for­bidden by Julius Caesar’s extortion law of 59, by Sulla’s maiestas law of 81, and by a number of old laws (plurimae leges veteres). The only general law of maies- tas before that of Sulla was the lex Appuleia.^[370] So it seems at least highly likely that it was one of the old laws in question, if not indeed the solitary factual prop for a rhetorical pluralization.

It is also true that the offences listed by Cicero would fit well with the histor­ical context in which Saturninus passed his law. They are all examples of improper conduct on the part of a provincial governor: leaving his province; leading his army outside it; making war on his own initiative; entering a foreign kingdom without orders from Senate or people. Saturninus legislated against a background of constant failure by consular and proconsular generals, whose corruption or sheer incompetence had led to a series of major disasters against the Cimbri and Teutones. In 103 Saturninus and his tribunician colleague C Norbanus had instituted prosecutions in the assembly against the comman­ders responsible for the greatest of these defeats, at Arausio in l05.^[371] In creating a standing court for the prosecution of such men Saturninus would at one and the same time be seeking to stamp out inefficiency and corruption and to assert the right of the people to call its generals to account. It would therefore make good sense if his law not only specifically mentioned the offences listed by Cicero, but also the others catalogued by Scaevola in D. 48.4.4.pr. These were causing a Roman army to be led into ambush or betrayed to the enemy; pre­venting the enemy from falling into the hands of the Roman people; causing the enemy to be assisted with supplies, arms, weapons, horses, money or anything else; causing friends to become enemies of the Roman people; causing a foreign nation to desist from obedience to the Roman people; causing hostages, money or beasts of burden to be given to the enemies of the Roman people to the detri­ment of the Republic. The third and sixth of these clauses recall the lex Mamilia of 109. This set up a special court with equestrian jurors, like the Gracchan extortion court and the maiestas court of Saturninus, to try those who had had any kind of treasonable dealings with the king of Numidia, Jugurtha, including those who had handed over to him elephants or deserters.^{[372] [373] The lex Mamilia contained no general clause and did not mention maiestas minuta, but even so there can be little doubt that had it not preceded the first general law of maies- tas, it too would have been dubbed lex maiestatis.}

These are undoubtedly the kind of offences with which Saturninus was con- cerned.6 However, to the best of our knowledge, no peccant general was in fact ever prosecuted under the lex Appuleia. The four cases on record are all con­cerned with violent and seditious conduct by a magistrate in office: three tri­bunes and one quaestor. Hence it has been suggested that instances of such seditious behaviour were specifically mentioned in the lex Appuleia, indeed that they were the only items mentioned.^[374] This is, however, highly unlikely. Saturninus was himself a tribune, damned by his opponents as a most seditious man. It is politically most implausible that he should have catalogued as instances of maiestas minuta expedients that might be resorted to by a tribune in the course of a struggle against senatorial opposition. His predecessor, Ti. Gracchus, had had trouble with a colleague’s veto, and Saturninus himself met with similar obstruction, which he set aside not by persuasion or legal devices but by simple violence.^[375] He showed an equal impatience of religious impedi­ments: when a hostile voice at one of his assemblies cried “It has thundered!”, which omen should at once have put a stop to the proceedings, Saturninus replied with the crisply impious threat “If you don’t keep quiet it’ll hail!”, which displays his theory and practice in a nutshell. Hardly then one who would seek to curb the tribunician power.

Nor does what we know of two of the four cases mentioned above suggest that Saturninus made tribunician sedition an offence. About the first two our information is too scanty for us to learn anything much to our purpose. In 98, an equestrian jury condemned Sextus Titius, allegedly for possessing a portrait of Saturninus.^[376] This cannot have been the formal charge, but if that charge was sedition or violent conduct it is easy to see why a prosecutor might have added this flourish to show that Titius was a second Saturninus, equally addicted to violence.

About the trials in 95 of C Norbanus and Q Servilius Caepio we are, fortu­nately, much better informed. Norbanus had been tribune in 103, a friend as well as a colleague of Saturninus, and, as noted above, he had brought to trial before the people Q Servilius Caepio, whose stubborn incompetence had been largely responsible for the disaster at Arausio. The hearing had been stormy, rioting had broken out, and M Aemilius Scaurus, the princeps senatus, had been hit on the head by a stone. Moreover, the tribunician veto had been disre­garded.^[379] On these grounds Norbanus was now charged with maiestas. His defence was undertaken by M Antonius, one of the two great orators of the day, on whose staff Norbanus had once served as quaestor. Antonius is one of the speakers in Cicero’s De Oratore, and in that work Cicero puts into his mouth a detailed account of the tactics he adopted on Norbanus’s behalf (De Or. 2.107-13, 124, 164, 167, 197-204).

Antonius admitted the factual content of the charges made against Norbanus, but denied that these facts proved that maiestas had been minuta.^[380] The whole case hung, he says, on the meaning to be assigned to the word maiestas. The nat­ural conclusion to be drawn from this is that the actions that Antonius agreed that Norbanus had performed (prevention of the tribunician veto by violence and the throwing of stones) were not specified by the lex Appuleia as examples of maiestas minuta. If they had been, there would have been no room for a dis­pute about meanings, and Antonius’s line would have been far too dangerous to

take.

The word at stake was not seditio but maiestas, as Antonius again makes clear when he says that maiestas is diminished by the man who delivers up an army to the enemies of the Roman people (that is Caepio), not by the man who delivers up the culprit to the Roman people for judgement. (It may be noted in passing that this would at least be consistent with the view that Saturninus did define such offences as betraying an army.) In Part. Orat. 105 Cicero tells us that Antonius even went so far as to urge that, since the people’s anger against Caepio was just, Norbanus had actually increased its maiestas by rendering Caepio accessible to popular retribution.

Later in 95 Caepio’s son was also prosecuted for maiestas, presumably a quid pro quo by the friends of Norbanus. As urban quaestor in 103, young Caepio had impeded and perhaps broken up the voting on Saturninus’s corn bill.^[381] Our information about the arguments used on either side comes this time from the Auctor ad Herennium (1.21; 2.17; 4.35). He is concerned to demonstrate the rhetorical potential of imprecise abstract definitions of maiestas.

The prosecution, he says, would claim that maiestas was diminished by the spurning of those elements which constituted the amplitudo of the State. As paramount among these it would then select (from an obviously wide range of possibilities) the suffrage of the people and the powers of its magistrates. Caepio’s action in interfering with the poll deprived the people of its right to vote, Saturninus of his right to initiate legislation. This tactic is precisely what Cicero recommends in Inv. 2.53: first choose your definition, then fit the defen­dant’s action to it (“ad id quod definieris factum eius qui accusabitur adiun- gere”). The defence, however, has a counter-definition: that man is guilty of maiestas who damages the amplitude of the State (qui amplitudinem civitatis detrimento adficit). With pleasing synecdoche Caepio claims that he protected the amplitudo of the State from damage by saving the treasury from the unjus­tified expense which Saturninus’s corn distributions would have entailed. Thus he preserved maiestas from utter extinction. As in the case of Norbanus, neither side disputes the facts.¹⁵ What is at issue is the meaning of maiestas, and each side will choose a definition to permit the description of the facts in emotive lan­guage suited to its own purpose. In both cases we must surely conclude that for facts of this kind the lex Appuleia gave no help, but that from the first it was pos­sible to bring prosecutions on facts that were not listed in the law as instances of maiestas minuta, simply by arguing that an action could be so described as to present it as a diminution of the people’s maiestas, to which the defence would reply that the same action could be better described in a manner which showed that maiestas, so far from being diminished, had actually been increased.

The lex Appuleia thus displays to the full the need for definition from the jurist’s viewpoint and the infinite potentialities of imprecision for the orator and the politician. In Part. Orat. 105 Cicero raises the question of whether a man could be held guilty of maiestas minuta if he resorted to violence in performing an action which fulfilled the wishes of the Roman people. Saturninus would no doubt have said no, and Antonius’s defence of Norbanus shows how that answer might be developed. Yet the opponents of allegedly seditious tribunes, who had forced through popular measures against the omens and the veto, thought otherwise, and the general clause of Saturninus’s law gave them ample opportunity to bring prosecutions. No doubt this is why the lex Appuleia was not repealed after Saturninus’s death. The champions of the authority of the Senate had realised that its very vagueness would allow them to stand it on its head and use it as a weapon against tribunician reform. So they were happy to let it remain in existence.

THE LEX CORNELIA OF SULLA

The next general law was that of Sulla, passed in 81.¹⁶ In addition to the specific examples of maiestas listed by Cicero (Pis. 50) and mentioned above, it was also an offence for a governor not to leave his province within thirty days of his suc­cessor’s arrival (Cicero Fam. 3.6.3). These clauses found their way into the lex Iulia, as we are told by Ulpian (D. 48.4.l.2) and Marcian (D. 48.4.3). The list given by Cicero is relevant to one particular case, that of Gabinius in 54, and does not pretend to be exhaustive. Other cases brought under the lex Cornelia were based on different sorts of charges. The lex Iulia contained a clause against soliciting the troops or inciting them to mutiny or riot adversus rem publicam (D. 48.4.1.1). This provision may well have been taken over from the lex Cornelia for Cicero tells us of two cases under Sulla’s law to which such a clause would apply. The first (Cluent. 97) is that of Bulbus, condemned for maiestas because his commander had complained that a legion had been tampered with by him (legionem esse ab eo sollicitatam). The second (Cluent. 99) is that of

¹⁵cf. Bauman, supra n. 1, 53—4.

¹⁶ Sources: MRR, supra n. 2, vol. 2, 75. For a very different account of Sulla’s law and its con­tents, cf. Bauman, supra n. 1, 70—83.

Staienus, who as quaestor was allegedly largely responsible for provoking a seditio in the army. Cicero remarks of Bulbus’s crime that it was covered by the law of maiestas (“quae res lege maiestatis tenebatur”), which may suggest that the lex Cornelia contained a clause more or less identical with that in the lex Iulia.

Sulla used his power as dictator to check all movements towards popular sov­ereignty and to re-establish the position of the Senate as the controlling force in the State. It might therefore seem surprising that the best-known clauses of his maiestas law may already have appeared in the law of a popular tribune. But Sulla had twice marched on Rome at the head of an army more loyal to its gen­eral than to the government of the Republic. It was therefore natural that, once in power, he should at least try to deter any other proconsul who might in the future feel tempted to follow a similar course. Sulla’s constitutional arrange­ments also explain one of the law’s omissions. He had introduced harsh mea­sures to curb the tribunate, depriving the tribunes of their legislative powers and banning them from the higher magistracies, so that men of talent and ambition would shun the office.^[382] This is why his law did not include a clause or clauses dealing with sedition provoked by tribunician legislation in despite of the veto. Under Sulla’s constitution such a situation could never arise. Thus, when the legislative powers of the tribunes were restored in 70 by Pompey and Crassus, any charge had to rely on the general clause in Sulla’s law, just as in the 90s it had had to be based on the general clause of the lex Appuleia.

The prosecution in 65 of C Cornelius, a tribune of 67, demonstrates this.^[383] Cicero, whose two speeches are lost, defended Cornelius. Fragments survive, however, in the commentary of Asconius (at 57-81). Cornelius had been attempting to legislate, but a colleague, P Servilius Globulus, had prevented the crier from reading the text of the bill. So Cornelius, nothing daunted, had read it himself. The consul C Calpurnius Piso had protested against this breach of tri- bunician veto. A riot had ensued, stones had been thrown and Piso’s fasces had been broken. Thus the circumstances of the prosecution recall the trial of Norbanus. The contention of the hostile witnesses was that Cornelius’s action strongly pertained ad crimen imminutae maiestatis tribuniciae, because he had disregarded the veto. Thus a small group of consulars, the surviving supporters of Sulla, justly characterized by Cicero as enemies of the tribunician power, had recourse to the injured maiestas of a tribune to assail another holder of the office.^[384] This paradox is typical of the elaborate doublethink for which the law of maiestas afforded such opportunities.

The technique of the defence was the same as in other cases where the charge was brought under the general clause. Cicero admitted the fact, but described it differently. The tribunician power, he said, could not be held to have been diminished just because a tribune had read aloud from a piece of paper. This curiously feeble and disingenuous assertion does little credit to its author, and we need feel no surprise that the bulk of Cicero’s speeches was devoted to mat­ters juridically irrelevant, such as the power of Pompey and his affection for Cornelius and the generally benighted attitude of the hostile consulars. But the overall tendency of his argument would again have been impossible if any spe­cific clause of the lex Cornelia had applied.

The vagueness of the maiestas law meant on the one hand that it could be invoked in a wide variety of cases, but on the other that it could prove an unre­liable weapon. This probably explains why, after the acquittal of Cornelius, the quaestio maiestatis seems to have lost favour as a forum for such prosecutions, yielding place to the quaestio de vi.2⁰ This vagueness is the subject of an unfor­tunately corrupt text of Cicero (Fam. 3.11.2-3). Ap. Claudius Pulcher had in 50 just been acquitted of maiestas. A prosecution for ambitus had also been a pos­sibility. The best form of the manuscript text of what follows runs thus: “verum tamen est maiestas, etsi Sulla voluit, ne in quemvis impune declamari liceret; ambitus vero ita apertam vim habet, ut aut accusetur improbe aut defendatur”. There is clearly a contrast intended between maiestas and ambitus, and what is said about ambitus is lucid enough. The content of the charge was plain (aperta), so that either the prosecution or the defence must in any given case be dishonest. This is obviously different from maiestas, which was notoriously imprecise, and engendered, as we have seen, elaborate discussions as to whether or not a given set of facts constituted maiestas minuta. It seems beyond doubt that some reference to this imprecision of maiestas should be restored in the cor­rupt first limb of Cicero’s antithesis. Unlike ambitus, where the issues were cut and dried, maiestas gave occasion for malicious prosecution and sophistical defence. What Sulla was trying to do was not to shackle free speech, but to pre­vent irresponsible prosecution,^{[385] [386] presumably by defining as many forms of maiestas as possible in the interests of increased precision. But despite his efforts, maiestas, Cicero is saying, was still dangerously vague. The text might be reconstructed in either of two ways: (a) “verum tamen ea est maiestas, etsi Sulla noluit, ut...” (this is the suggestion of Purser, based on Lambinus), or (b) [adjective contrasted with aperta, for example, McDonald’s varia] “tamen est maiestas, etsi Sulla voluit ne...”. At all events there is no evidence here to set against the statement of Tacitus (Ann. 1.72) that Augustus was the first to take notice of dicta under the law of maiestas.}

Several possible grounds for a charge under the lex Cornelia are recorded in Cicero’s speeches against C Verres, especially the fifth, the closest approxima­tion we possess to a prosecution speech for maiestas.^[387] Indeed, he formally threatens Verres with a charge of maiestas (Verr. 5.79).

The removal by Verres of certain statues could be construed as maiestas min­uta, because they served as monuments to the military achievements of the Roman people (Verr. 4.88). Another incident involving a statue could be brought under the rubric of causing friends of the Roman people to become its enemies (Verr. 4.60-70, esp. 60, 68). Cicero also accuses Verres of removing a statue without authority from senate or people (Verr. 4.84), a qualification that prefigures some of the clauses cited in his diatribe against Gabinius (Pis. 48-50). Verres’s treatment of alleged fugitives from the armies of Sertorius and Perperna in Spain is likewise presented as a contravention of the wishes of Senate and people (Verr. 5.151-3). Verres’s misdeeds in his handling of the corn tithe of Sicily could also be presented as maiestas, since the Roman people’s food sup­plies and revenues were thereby diminished (Verr. 3.11, 48, 119-21, 127-8, 137, 4.20, where the language is particularly noteworthy, 150).

More fruitful still is Verres’s undermining of the fleet and the consequent flamboyant excesses of Sicilian pirates. Verres diminished the Roman fleet quite literally by exempting Messana from its obligation to provide a ship (Verr. 4.150, 5.50, 59, 136). He also destroyed its efficiency in various ways (Verr. 5.42, with mention of maiestas, 60-3, 91, 99, 131, 136). As a result pirates were able to capture and burn it and sail unopposed into the very harbour of Syracuse, making a mockery of the glory of Rome and the name of the Roman people (Verr. 5.100). Verres had placed the fleet under the command, not of one of his Roman subordinates but of a Syracusan, Cleomenes (Verr. 5.82-94, esp. 85, 131, 137). Cicero attacks this choice from two angles. First, it was a slight to the hon­our of Rome to place a Roman fleet under the command of any foreigner. Secondly, Syracuse is presented as an inveterate enemy of Rome, while the per­petual devotion to Rome of those cities that had contributed ships to the fleet is heavily stressed. So Cicero comes elegantly close to accusing Verres of causing the fleet of the Roman people to fall into the hands of one of its enemies. Verres also kept captured pirate captains under arrest in his house, even after his term as governor had ended (Verr. 5.76-9). Cicero pointedly describes these men as leaders of the enemy (hostium duces). This suggests that Verres was vulnerable to a charge of preventing the enemies of the Roman people from falling into its hands, and it is indeed at this point that he threatens to prosecute Verres in the quaestio maiestatis.

Another aspect of maiestas that bulks large in the Verrines is what might be roughly described as conduct by an official representative of the Roman people unbecoming to the dignity of his office.^[388] Whether this was specifically listed as a ground for prosecution in either the lex Appuleia or the lex Cornelia is unknown. One of the commonest complaints against Verres is that he, the gov­ernor, spent much of his time in unsuitable pursuits, artistic, sympotic and erotic, in unsuitable, that is Greek, attire (Verr. 4.54-5, 5.26, 31, 40, 86, 131, 137; cf. Pis. 93 on Piso’s slippers). He travelled in an effeminately luxurious litter and conducted official business with both Romans and provincials in his bedroom (Verr. 5.27). His riotous dinner parties were inappropriate to a governor repre­senting the Roman people (Verr. 5.28). All this merely confirmed the impression he had created before he even arrived in Sicily by returning to visit his mistress in Rome after he had taken his official departure (Verr. 5.34). During his urban praetorship he had likewise refused to deprive himself of her company, trans­ferring his office instead to her house (Verr. 5.38). During the campaigning sea­son this sedulous defender of his province spent his time in debauchery in a specially erected marquee on the beach at Syracuse (Verr. 5.29-30, 80-1, 96).

It has been debated whether only magistrates were liable for prosecution on grounds such as these.^[389] The elder Seneca states unequivocally that privati were liable (Seneca Contr. 9.25.6-7), and a couple of passages of Cicero suggest that at the very least senators on official business might be included. He complains (Verr. 4.25) of the treatment that he, as a Roman senator, received at Messana. If a community which showed disrespect to a senator might on that account be supposed to be spurning the maiestas of the Roman people it might be assumed that senators at least had a corresponding duty to uphold that maiestas. This appears to be confirmed, again by Cicero’s own experience. When in Sicily collecting evidence against Verres he was rebuked by Verres’s successor, L Metellus, for addressing a Greek council (that of Syracuse), and—which clearly aggravated the offence—doing so in Greek (Verr. 4.147). At this point Cicero held no magistracy, but he was a senator. It therefore seems that sena­tors, as well as magistrates in office, had a duty to behave in such a manner as would not diminish the maiestas of the Roman people.

This aspect of maiestas also plays a part in Cicero’s charges against Gabinius. The claims that Gabinius led his army outside his province and made war with­out authority from Senate or people are exacerbated by the allegation that in so doing he was hiring himself out as a mercenary to the king of Egypt (Pis. 48-9; cf. also 84 on Piso himself).

But perhaps the most notorious example of such conduct dates from 193, long before the lex Appuleia.^[390] In all probability it did not lead to a formal prosecu­tion. However, the elder Seneca uses the incident as the basis for a rhetorical exercise on maiestas (Seneca Contr. 9.25). The case was that of the proconsul L Quinctius Flamininus, who was alleged to have had a condemned criminal exe­cuted at a banquet to entertain a courtesan who felt deprived because she had never seen a man beheaded. All the various approaches suggested tend towards a common and familiar end: showing that a charge of maiestas was or was not pertinent (“an quidquid in magistratu peccavit proconsul vindicari possit maies- tatis lege”). Thus it is said that Flamininus made a mockery of his office and of the awe which the name of the Roman people should inspire and that he had subjugated his own authority and that of the law to the whim of a whore. It is not the execution itself that arouses objections but the fact that it was performed at a banquet and at the behest of a meretrix. The fasces have been dishonoured by this abuse, and the maiestas of the Roman people, which should extend over all provinces and all nations, has been caused to reside in the cleavage of a tart. All this follows the republican pattern: show that those things that constitute the amplitudo of the State have been trampled on, or, as Cicero says, make the deed fit the charge.

CONCLUSIONS

It is not hard to see why the republican jurists took little or no interest in the sub­ject of maiestas. New clauses were added by politicians as expediency demanded; the improvements made by Sulla, for instance, were stimulated by the practical demands of a policy dictated by his own experience. As for the def­inition of maiestas minuta, it was, as we have seen, a glorious playground for the great orators of the Republic, but the cases of a Norbanus or a Cornelius could provide no firm ground for the jurist.

Nor did the principate make the topic more tempting. Now the feelings of the emperor had to be considered, and several were notoriously touchy on the sub­ject. It was largely in cases of maiestas that Augustus, quite illegally, had begun to usurp the right of exercising jurisdiction in camera, an ominous sign for the future.^[391] A favoured jurist might be summoned to the imperial consilium to dis­cuss whether or not such and such an action could be construed as an offence under the law of maiestas. He might feel it prudent, however, to offer no opin­ion until the emperor had given some indication of his wishes. In such an atmos­phere speculation could hardly flourish. Nor will it have been tempting to theorise in class about hypothetical cases, which might become embarrassing realities. Thus the very nature of the law of maiestas and the political and social circumstances which at various times governed its application conspired to deprive it of healthy interest for the jurists. That is why we must look largely to factors outside the law when we seek to understand the development of the crimen maiestatis.