Curbs on rapacity: some cases

We open our account with Volesus Messalla who governed Asia in 11/12 AD. He beheaded 300 people in one day and strutted arrogantly among the corpses as if he had done a glorious deed, crying out in Greek, �What a regal act!’ (O rem regiam!).

Asia, the hope and despair of Rome’s investment in Greek humanitas, was again prominent in AD 22 when C.Silanus, a former governor, was brought before the senate. A working model of this seminal case²⁰ has the provincials lodge charges of extortion. Their patroni tell the senate that Silanus has violated Augustus’ numen and spurned Tiberius’ maiestas.²¹ They cite as exempla the ancient cases of L.Cotta accused by Aemilianus, Servius Galba by Cato the Censor, and P.Rutilius by M. Scaurus.²² Having thus brought repetundae and maiestas into congruence, the patroni arrange for the examination under torture of Silanus’ slaves.²³ The forces arrayed against the accused are augmented by a team of expert speakers from Asia,²⁴ and the hostility of many senators is brought to the boil by a deadly crossexamination by Tiberius. With no one prepared to speak for him,²⁵ Silanus finally throws in the towel and abandons his defence (Tac. Ann. 3.67.2-4).

The senate then addresses the question of punishment.

Silanus’ trial was a test case, perhaps the most important in the Principate. It placed a capital penalty for aggravated extortion on a firm footing. But there is one thing that Tacitus does not tell us, and that is whether any restitution to the provincials was ordered.²⁷ Presumably he did not think it necessary to deal with it, but in a subsequent case he makes an extraordinary statement. In 24 C.Silius, a former legate of Upper Germany, was put on trial. Both treason and extortion were alleged against him:

He was charged with connivance in Sacrovir’s rebellion [in Gaul] and with ruining his victory over Sacrovir by greed [victoria per avaritiam foedata]. His wife was charged with him. They were undoubtedly guilty of repetundae, but the whole case was conducted as a trial for maiestas.²⁸

Tacitus enlarges on the maiestas-oriented character of the case. After noting Silius’ suicide prior to a verdict, he says that execution was levied against Silius’ property, â€?but this was not done in order to make restitution to provincial taxpayers,²⁹ none of whom had lodged claims’ (quorum nemo repetebat); the purpose was to recover gifts given by Augustus (Ann. IV 19.5-20.1). In other words, Silius’ treasonous conduct was taken as disloyalty to the regime. Ingratitude was a ground for revocation of a gift in private law; it was now being given a public application. But the avaritia, which had taken the form of an increased levy of tribute on the Gauls,³⁰ had not evoked any claims for restitution. Yet the indictment had in fact included specific charges of repetundae; Tacitus says they were undoubtedly caught up in the repetundae charges—repetundarum criminibus haerebant (Ann.

A year before Silius’ case Tiberius had cleared up a problem that had worried Augustus. In 26 BC the latter had complained bitterly about the senate’s interference in the case of Cornelius Gallus, who as Prefect of Egypt was the servant of the emperor rather than of the Roman people (Suet. Aug. 66.2). Now, in AD 23 when L. Capito, Procurator of Asia, was accused of repetundae by the province, Tiberius declared that he had only given his agent authority over imperial slaves and revenues; if Capito had gone further than that the provincials must be heard, and the trial must take place in the senate.³³

In recognition of the steps taken against Silanus and Capito, Asia erected a temple to Tiberius, Livia and the senate (Tac. Ann. 4.15.5). The honour acknowledged Tiberius’ completion of a crucial phase in the consolidation of remedies for non-Romans. The rest of the Julio-Claudian period witnessed a change in the centre of gravity. For the first time the spotlight was on domestic, rather than external, repetundae. When Claudius’ senators called for the revival of the lex Cincia of 204 BC in order to control the exorbitant fees paid to court pleaders, the emperor refused to revive the total ban. He merely laid down a ceiling of 10,000 sesterces; only payments above that would fall under the repetundae law (Tac. Ann. 11.7.8). Claudius was even more lukewarm about external repetundae. P.Suillius, who accumulated a vast fortune in counsel’s fees, probably held office as governor of Asia under Claudius rather than Nero.³⁴ But it was only in Nero’s reign that he was prosecuted. And even then the provincials’ complaints were postponed for a year to enable evidence to be collected.³⁵ Meanwhile domestic charges of repetundae, for which witnesses were available,³⁶ were brought to trial and Suillius was exiled.

Seneca was involved in repetundae matters. He tried to have Suillius charged while Claudius was still on the throne; under Nero, Suillius tried to talk himself out of trouble by vilifying Seneca (Tac. Ann. XIII 42.1-3, 43.1). Then, under AD 64 Tacitus notes that �Italy was ransacked for funds and the provinces were ruined, both subject provincials and free communities’. The depredations included despoiling temples in Rome and plundering religious institutions in Asia and Greece. Seneca tried to avoid the odium of this sacrilege by retiring to the country, but permission was refused (ibid. 15.45).

Remedies for non-Romans moved back into top gear after the end of the Julio-Claudian dynasty. As with clementia, the revival starts unexpectedly with Domitian. Suetonius has him judging cases in public in the Forum, and getting the senate to appoint jurors for the trial of a corrupt aedile accused of repetundae (Suet. Dom. 8.2). Suetonius pays Domitian a glowing tribute: �He exercised restraint over urban and provincial magistrates with such care that they were never more moderate or just; since his time we have seen many of them charged with various offences’ (ibid.). But one wonders what gave Suetonius the idea of honest officials. Was he not in Rome in 93, when Pliny represented the provincials of Baetica against the former governor, Baebius Massa? The case was something of a cause celebre, for when Massa’s property was sequestrated to secure payment of provincials’ claims, Pliny’s co-accuser Herennius Senecio earned himself a criminal charge by impugning the consuls’ honesty: he asked them to make sure that the property was safe while in public custody (Plin. Ep.

Trajan’s reign provides us with our most detailed information about extortion trials in the Principate. This is because of four trials in which Pliny appeared—for the provincials against Marius Priscus and Caecilius Classicus, and for the defence on behalf of Julius Bassus and Varenus Rufus.³⁹ We begin with Priscus and Classicus. In 97-8 Priscus was governor of Africa, while Classicus governed Baetica in the same year. After the completion of their tours of duty they were charged with repetundae; Priscus’ trial preceded that of Classicus.⁴⁰

Pliny opens his account of Priscus’ trial with the observation that it is a major example of severity in the interests of public maiestas (Ep. 2.11.1). Complaints having been lodged by the Africans, the senate assigned them Pliny and Tacitus as their patroni. Priscus made no defence to the claims for repayment and asked that iudices be appointed.⁴¹ But Tacitus and Pliny told the senate that by his inhuman cruelty (immanitate et saevitia) Priscus had exceeded the limits of a simple procedure for restitution; he had taken bribes to convict innocent persons, even to sentence them to death (Ep. 2.2.2-3). In effect this repeated the position in Silius’ case: the provincials were only interested in restitution; the patroni took it on themselves to raise the capital issue.

There was a heated debate on the issues raised by Tacitus and Pliny. Priscus’ counsel argued that the senate’s powers were limited by the lex repetundarum,⁴² but other senators claimed that the senate’s jurisdiction was free and unrestricted, authorising the punishment of the accused for everything that he had done. It was eventually decided that in the meantime indices be appointed to make an assessment, but that those who had paid Priscus for corrupt condemnations be summoned. In other words, that evidence of saevitia be gathered.⁴³

Two of those who had given bribes, Honoratus and Marcianus, were summoned.

The trial was duly held in January 100, with Trajan presiding. He happened to be consul at the time, but his presidency was deliberately arranged for what was undoubtedly a test case. Priscus was of very high status, having held the consulship and a major priesthood (ibid. 2.11.12). Speeches were made by Pliny, Tacitus and defence counsel (2.11.14-18), after which proposals on sentence were addressed. A suggestion that no further penalty be imposed on Priscus apart from the recuperatory assessment was rejected. It was resolved that Priscus pay the 700,000 sesterces into the treasury and be exiled from Rome and Italy. Marcianus was exiled from Rome, Italy and Africa (2.11.19-22). Priscus’ deputy (legatus), Hostilius Firminus, who had given substantial assistance to his commander, was tried at a subsequent session and sentenced to lose his eligibility for a provincial governorship. This was considered more lenient than expelling him from the senate, though Pliny did not agree (2.11.23-4, 12).

The main importance of Priscus’ case lies in the decision to make both restitution and capital punishment components of a single, overall offence. They had been working towards this in cases ranging from Volesus Messalla to Baebius Massa, but only now was the whole question debated and decided. It should not be brushed aside as a careless violation of the rule against double jeopardy.⁴⁴ Modern courts award compensation to victims at the same time as they impose criminal punishment on offenders. It is considered a feature of human rights. It was inherited from Rome.

Caecilius Classicus’ trial, shortly after that of Priscus, introduced something of an innovation. The complaints against Priscus had been partly a class action, having been lodged by some individuals and by one community, the city of Lepcis in Africa, but Classicus’ case went further. Classicus was charged by the whole province of Baetica, thus confirming a precedent that had been established for that province in Baebius Massa’s case.⁴⁵ In Classicus’ case the province requested the senate to appoint Pliny as its patronus. Classicus died before the trial.⁴⁶ The Baetici continued the action, thus reviving what Pliny considered a lawful but lapsed practice.⁴⁷ Charges were also brought against Classicus’ associates. In order to lay a foundation for that Pliny had to establish the deceased Classicus’ guilt. He did this by producing Classicus’ detailed accounts, together with a letter that Classicus had written to his mistress: â€?Ho, ho, I’m coming home to you free of debt; I’ve raised four million by selling up half of Baetica.’⁴⁸

The position of Classicus’ associates raised a question. Some of them admitted the facts, but pleaded that as provincials themselves they had acted under duress. Pliny managed to defeat this contention (Ep. 3.9.4-6). The senate ordered that the property owned by Classicus prior to his governorship be given to his daughter. The balance was to be divided among his victims; money that he had paid to his creditors was to be recalled and added to the amount available for distribution. Most of the associates were sentenced to exile (Ep. 3.9).

Julius Bassus was tried some two years after Priscus and Classicus. Pliny appeared for the defence. Bassus was acquitted of the charges, which related to his governorship of Bithynia (Ep. 4.9). Four years later, when defending Varenus on charges laid by the same Bithynians, Pliny established a new principle. He got the right to an adjournment to collect evidence, always available to the prosecution, extended to the defence. The tactic seems to have paid off, for when Trajan personally took over the case on his return from Dacia, doubts were expressed as to whether the province was still of the same mind. Those doubts will have been fuelled by what Pliny had found out in the province. Trajan undertook to find out the wishes of the provincials, but nothing more is heard of the case.⁴⁹

Trajan’s reign gave the repetundae process in the external sphere its definitive shape. Some of the great evils of the past had, of course, ceased to be a problem long before this. There is no trace of depredations of genocidal proportions in the Principate.⁵⁰ Henceforth it was a question of a more professional approach. Combating extortion was still important after Trajan, but the evidence is so flimsy that the Augustan History’s detailed summary of Marcus’ reforms has only one dubious reference to repetundae.⁵¹ Nor does the evidence, such as it is, indicate any important advances in law or principle. Just about the only point of interest is the unusually high proportion of verbatim citations of the lex Julia;⁵² the classical jurists cite no rulings by emperors, and only a handful of their own opinions.⁵³ Even more surprisingly, the Sentences of Paul, which reflects the position in c. AD 300, includes only one trivial notice of repetundae (PS 5.28), compared with the same work’s copious material on the other criminal laws. It is not until the Later Empire that interest in repetundae seems to revive. The earliest constitutions in the late imperial codes date to the late fourth century (CTh 9.27.1, CJ 9.27.1).