THE SENATORIAL COURT FROM THE FLAVIANS TO THE SEVERANS

In a familiar passage in Dio’s History¹ Maecenas is made to give Augustus the following advice: in respect of serious charges in­volving senators and their families, and calling for the penalties of disfranchisement (ατιμία),² exile (φυγή), and death (θάνατος), the Emperor should allow the matter to be brought before the Senate without having made a prior decision, and should leave the entire judgement to that body.

The statement in Dio probably represents the opinion of moder­ates in the Senate of the early third century.

We may begin with charges which might carry a death sentence, and especially maiestas. It was, understandably, the use of the death penalty which the Senate was most anxious to control.

Emperor and Senate had long fought over the question whether it was proper for the Emperor to try senators for crimes which might lead to execution. The seeds of the controversy were sown in the Julio-Claudian period. No Emperor of the first dynasty claimed or practised a regular criminal jurisdiction. However, individual Emperors from time to time disposed of individual senators without regard for the legal processes which had become customary. The classic attack on behaviour of this kind was delivered not by an ordinary senator, but by Nero, in his first

*   Dio 52.

*                                             On ατιμία see p. 58 n. 5.

appearance in the Senate as Emperor.¹ In the speech, Claudius was castigated for, among other things, judging ‘all cases’ (nego- tiorum omnium), and behind his palace-doors (unam intra domum). Nero probably exaggerated the extent of Claudius’ shortcomings.² In any case, his own promise to avoid the practice of his predeces­sor was broken after the Pisonian conspiracy of a.d. 65, if not before.³ Moreover, in the last months of his reign, if we are to believe Dio and Suetonius, Nero threatened to extinguish the whole senatorial order.⁴

The crisis in the relations between Senate and Emperor was delayed until the reign of Domitian (by which time the senatorial court and the Emperor’s court existed side by side).⁵ Dio’s epitomator, under A.D. 81, reports⁶ that Domitian’s Senate passed repeated decrees to the effect that the Emperor should not destroy anyone of his own rank. It seems to have been the aim of those who framed the decrees to avoid executions of senators by preventing Domitian from condemning senators independently of the Senate. It is difficult to decide on the evidence available whether the Senate acted in this way in uneasy anticipation of its future in­security, or whether an attack on its membership had already occurred and had galvanized it into action. Nor is it known to what extent the imputation of Dio/Xiphilinus that Domitian disregarded the senatorial decrees was justified.’ But at any rate, Domitian did not resign any claim to independent capital juris­diction over senators.

It has recently been argued that the Emperor’s oath not to execute senators originated in the reign of Vespasian.⁸ It is true that an oath was introduced at a meeting of the Senate and ad-

¹     Tac. Ann. 13. 4. No doubt Seneca composed the speech.

⁴               Valerius Asiaticus was tried domi, Tac. Ann. 11. iff., and probably Appius Silanus also, Suet. Div. Cl. 37, cf. Tac. Ann. 11. 29 and Dio 60. 14. 3. Evidence of other trials of this kind is lacking. Contrast Dio 60.16. 3; Suet. Div. Cl. 40. 2.

’ But Tac. Ann. 14. 50 (under A.D. 62) shows that before the conspiracy Nero normally sent criminal cases to the Senate.

*  Suet. Nero 37. 3; 43. 1; Dio 63. 27. 2.                                       .

» See Quint. Inst. Or. 7. 2. 20. Quintilian wrote in the closing years of Domitian.

⁶      Dio 67. 2. 4.                                                                       ^{7 See} PP· 4b“7·

style='font-size:9.5pt;line-height:95%'>•   A. R. Birley, CR 12 (1962), 197-9.

 45 ministered to those present. Its terms were, ‘that they had com­mitted no action tending to anyone’s hurt, and had gained neither reward nor preferment from the downfall of fellow Romans’.¹ Vespasian and Titus were not present at the meeting, but perhaps they would have been compelled to swear the oath if it had remained in force.

Titus did not swear not to kill senators. He followed Vespasian’s policy of rejecting maiestas charges. Further, he is said to have banished informers. He put no senator to death, and was praised for it.^{[39] [40] [41]}

Nerva freed those on trial for maiestas, restored exiles, forbade maiestas accusations, and punished informers. He also swore that he would kill no senator (μηδε'ρα των βουλευτών φονεύσειν),^{[42] [43]} and Trajan followed suit? It was prudent for the successor of a tyrant to do so; Trajan was close enough toDomitian’s reign to make capital out of it also. Of the Emperors that followed, Hadrian, Pertinax, and Septimius Severus can be shown to have sworn the oath.^[44] We might have been able to add Pius’ name, had there not been a lacuna in Dio’s narrative. In his reign, according to the Biographer, no senator lost his life—even a parricide escaped with exile.^[45] Moreover, it was apparently Pius’ policy to allow the Senate to try senators—one of the two conspirators against his rule was

appearance in the Senate as Emperor.¹ In the speech, Claudius was castigated for, among other things, judging ‘all cases’ (nego- tiorum omnium), and behind his palace-doors (unam intra domum).

The crisis in the relations between Senate and Emperor was delayed until the reign of Domitian (by which time the senatorial court and the Emperor’s court existed side by side).⁵ Dio’s epitomator, under A.D. 81, reports⁶ that Domitian’s Senate passed repeated decrees to the effect that the Emperor should not destroy anyone of his own rank. It seems to have been the aim of those who framed the decrees to avoid executions of senators by preventing Domitian from condemning senators independently of the Senate. It is difficult to decide on the evidence available whether the Senate acted in this way in uneasy anticipation of its future in­security, or whether an attack on its membership had already occurred and had galvanized it into action. Nor is it known to what extent the imputation of Dio/Xiphilinus that Domitian disregarded the senatorial decrees was justified.⁷ But at any rate, Domitian did not resign any claim to independent capital juris­diction over senators. Some later Emperors, however, in effect did this, by declaring on oath that they would kill no senator.

It has recently been argued that the Emperor’s oath not to execute senators originated in the reign of Vespasian.⁸ It is true that an oath was introduced at a meeting of the Senate and ad-

¹               Tac. Ann. 13. 4. No doubt Seneca composed the speech.

³               But Tac. Ann. 14. 50 (under a.d. 62) shows that before the conspiracy Nero normally sent criminal cases to the Senate.

⁴ Suet. Nero 37. 3; 43. 1; Dio 63. 27. 2.

³ See Quint. Inst. Or. 7. 2. 20. Quintilian wrote in the closing years of Domitian.

⁶ Dio 67. 2. 4.                                                                      ⁷ See pp. 46-7.

⁸ A. R. Birley, CR 12 (1962), 197-9.

 45 ministered to those present. Its terms were, ‘that they had com­mitted, no action tending to anyone’s hurt, and had gained neither reward nor preferment from the downfall of fellow Romans’.¹ Vespasian and Titus were not present at the meeting, but perhaps they would have been compelled to swear the oath if it had remained in force. However, the oath was purely retrospective; it was de­signed specifically to embarrass those informers or accusers who had endangered the lives of senators under Nero. No open request was made of Vespasian as Emperor to give his word or swear an oath to respect senators’ lives; and as far as we can tell he made no such pledge. He took the more positive measure of refusing to entertain charges of treason.^{[46] [47]}

Titus did not swear not to kill senators. He followed Vespasian’s policy of rejecting maiestas charges. Further, he is said to have banished informers. He put no senator to death, and was praised for it.^[48]

Nerva freed those on trial for maiestas, restored exiles, forbade maiestas accusations, and punished informers. He also swore that he would kill no senator (μ,ηδενα των βουλευτών φονευσειν),^[49] and Trajan followed suit.^[50] It was prudent for the successor of a tyrant to do so; Trajan was close enough to Domitian’s reign to make capital out of it also. Of the Emperors that followed, Hadrian, Pertinax, and Septimius Severus can be shown to have sworn the oath.^[51] We might have been able to add Pius’ name, had there not been a lacuna in Dio’s narrative. In his reign, according to the Biographer, no senator lost his life—even a parricide escaped with exile.^[52] Moreover, it was apparently Pius’ policy to allow the Senate to try senators—one of the two conspirators against his rule was

prosecuted in the Senate (and the other· committed suicide).¹ The only oath recorded for Marcus is placed near the end of his reign, when he is said to have sworn that no senator had been killed with his knowledge.²

Thus Dio would have been able to support his plea for the senatorial trial of senatorial criminals in cases involving the death penalty by appealing to the professed or apparent policies of a good proportion of the Emperors who followed Domitian.³

Dio would have known, from the past history of the senatorial court, that no senatorial defendant was guaranteed any advantage from the mere fact that he was to be tried by his peers. Yet he would not have pressed for senatorial trials of senatorial criminals if he had not considered that such an arrangement could favour senators. The real danger, as Dio appreciated, lay in interference from above. Thus he requested, through Maecenas, not simply that the Emperor should surrender a senatorial criminal to the Senate; but that having done so, he should hold himself aloof from the case. He should give no prior judgement, and resist the temptation to influence the Senate’s decision.

Dio (Dio/Xiphilinus) reports that the senatorial decrees de­signed to prevent Domitian from acting independently against senators caused that Emperor no anxiety.⁴ Yet Domitian did not disregard them entirely. If the references to Domitianic trials are assembled, it will be seen that many if not most of the senators who were killed or exiled in his reign were condemned in the Senate.⁵

^J SHA Pius y. 3-4, cf. 6. 3 (Hadrian’s enemies).

¹               SHA Marcus 29. 4. See also ibid. 25. 6; Av. Cass. 8. 7: Marcus pressed the Senate not to pass the death sentence on those involved with Avidius Cassius in his rebellion. Dio thought it worthy of note that Marcus did not slay or imprison the associates of Cassius, or bring them before his own court (71.28.2). It is not clear why Dio was impressed. He may have felt that, in the face of open military revolt, a threatened Emperor would have been justified in taking the (sc. irregular) step of dealing with the rebel and his followers himself. See Dio 52. 31. 10. Despite SHA Marcus 24. 2 (on which see p. 59 n. 1), I do not believe that Marcus regularly handled capital cases involving senators.

³               Of the Emperors who followed Septimius Severus, Alexander is said to have killed no senators (SHA Sev. Al. 52, quoting Herodian; cf. Her. 6. 1. 7; 6. 9. 8), and Macrinus begged off Aurelianus by insisting that it was impious to put a senator to death (Dio 78. 12. 2).

⁴    Dio 67. 2. 4.

³ See Dio 67. 3. 3² (a.d. 83, first Vestal Virgin case); 67. 4. 5, cf. Suet. Dom. 11. 2 (general statements about maiestas cases); Pliny, Ep. 4. 11 (second Vestal

 47 This was true even of the victims of the ‘purge’ which began in A.D. 93. Tacitus in the Agricola confesses that the Senate bore a corporate responsibility for the elimination of men such as Hel- vidius Priscus the Younger:

mox nostrae duxere Helvidium in carcerem manus; nos Maurici Rusticique visus ; nos innocenti sanguine Senecio perfudit.¹

Thus Domitian, on some occasions at least, was cynical enough to get rid of his enemies without breaking the letter of the senatorial decrees. There was more than one way of destroying a senator, as Dio fully appreciated. He commented with bitterness that the decrees were futile and innocuous because, with an Emperor like Domitian, it made no difference whether a senator was condemned by an Emperor in person or by a Senate under his domination.

It might be supposed that senators living under Emperors who had sworn not to execute them would be better placed. If this was ever so, it was not by virtue of the fact that the Emperors concerned had taken oaths. In the first months of Hadrian’s reign, before his arrival in Rome, four conspicuous consulars were put to death. Hadrian, according to the Biographer, claimed that they died by the Senate’s order and against his will (senatu iubentt, invito Hadriano)? The Biographer goes on to say, apparently without irony, that Hadrian incurred odium because he ‘allowed*

Virgin case, see pp. 57-8); ibid. 7. 33 (Baebius Massa, repetundae, see pp. 57-8). Suet. Dom. 10 ascribes a host of murders to Domitian personally, not however to his court. Similarly, when lulius Bassus is said by Pliny to have beena Domitia- norelegatus (Ep. 4. 9.2), this does not rule out a senatorial trial (such as occurred when he was acquitted under Vespasian). No doubt his recall (revocatus a Nerval was inspired by Nerva but effected by a S.C. On the other hand, Salvius Liberalis was tried by a private judge appointed, presumably, by Domitian (ibid. 3. 9. 33; both charge and year are unknown). Again, the executions after the military revolt of a.d. 89 did not take place in Rome at all. Dio complains (67. 11. 3) that Domitian did not bother sending a report to the Senate. For the ‘purges’ begin- ning in A.D. 93 see next note.

¹               ‘Soon our hands led Helvidius to prison; the look of Mauricus and Rusticus put us to shame; Senecio sprinkled us with his innocent blood.’ Tac. Agric 45 The detail supplied by Pliny (Ep. 7.19. 6) that Senecio’s books were burned by order of the Senate perhaps supports Tacitus, if support is necessary. For the idea of the corporate responsibility of senators cf. Dio 59. 16. 2 (the taunt of Gaius over Tiberius’ reign) and Tac. Hist. 4. 8 (Eprius Marcellus on Nero’s reign).

²        SHA Hadr. 7. 2, citing Hadrian’s Autobiography.

the men to die.¹ If the Emperor had not in fact ordered the execu­tions (and the Epitomator of Dio records that he denied this on oath),² he had at least let slip the opportunity to veto them. Hadrian followed his self-exoneration with an oath that he would never punish a senator with execution except by the Senate’s decision (nisi ex senatus sententid).³ It will be obvious that this oath would not have satisfied his more intelligent critics. It did not rule out the possibility that senators might be executed, stipulating only that any death sentence had to be ratified by the Senate. The death of the four consulars had apparently followed a senatusconsultum.

The Emperor Septimius Severus took advantage of the same anomaly. He swore an oath, and insisted that it be reinforced by a senatorial decree prohibiting the death of a senator by the Em­peror’s agency without prior consultation of the Senate.⁴ After referring to the oath and the decree, Dio charges Severus with being the first to violate them, by destroying many senators, including the framer of the decree. (These were followers of Julianus.)⁵ But, as the Biographer shows, the action took place in the Senate:

alia die ad senatum venit et amicos luliani incusatos proscriptioni ac neci dedit.⁶

Severus could presumably have claimed that he had observed the formal requirement of ‘consulting’ the Senate. No doubt he ob­tained a senatorial decree of condemnation in this case. When dealing with most of his other foes, notably the followers of

¹               SHA Hadr. *7,3: ‘quod occidi passus esset uno tempore quattuor consulates? Cf. SHA Marcus 26. 10: ‘Ipsum Cassium pro dementia occidi passus est, non occidi iussit.’ The murder of Trajan’s friends had been accomplished suddenly and hastily, so as to encourage the belief that their crime was imaginary. But the crime of Cassius was public, for all to see.

²               Dio 69. 2. 6. Ibid. 2. 4 may point to an earlier oath, perhaps immediately following the accession.

³  SHA Hadr. 7. 4.

⁴               SHA Sev. 7. 5: ‘ne liceret imperatori inconsulto senatu occidere senatorem.’ This text mentions no oath. But see Dio 74. 2. 1-2 and perhaps Her. 2. 14. 3; and p. 62.

^{size=2 color=black face="Times New Roman">5}               See next note. The death of Julianus himself was decreed by the Senate: Her. 2. 12. 6; Dio 74. 17. 4.

⁶               SHA Sev. 8. 3: ‘On another day he came to the Senate, accused Julianus’ friends, and gave them to proscription and death.’

 49 Clodius Albinus, he showed less ‘scruple’.¹ The oath could hardly survive such a reign.¹

Thus Dio knew from first-hand experience that the Imperial oath not to kill senators guaranteed only a senatorial trial for senatorial defendants, and was no protection against the death penalty. He must have had his own Emperor Severus, among others, in mind when he put into the mouth of Maecenas the demand that a senatorial trial should be free from any intervention from the Emperor, however well-intentioned it might be.

The battle between Emperor and Senate, which, as I have sug­gested, lies behind the passage in Dio, arose principally from the threat posed to the lives of senators by Imperial misuse of the maiestas law. But the passage reflects an anxiety among senators to protect their status as well as their lives: it was no doubt felt that a senator should no more lose his citizenship and property and homeland than his life because of the personal hostility which an Emperor bore to him.^{[53] [54] [55]} The discussion must thus be broadened to embrace penalties less severe than the death penalty, and crimes less serious than maiestas.

Other penalties and crimes: Flavian and Trajanic evidence

The best evidence for the trial of crimes other than maiestas is provided by letters of the Younger Pliny, and relates mainly to repetundae trials under Trajan.

Pliny’s account of the few trials which he describes is coloured by the fact that he was, as an advocate, a leading actor in them and no mere eyewitness. What is lost in evenness and objectivity in narrative is gained in the insight provided into his reaction to the events and to his own part in them. Pliny appeared more often for the prosecution than for the defence. This was not the way he would have liked it, for three reasons. First, the Roman Senate had just emerged from a prolonged period of insecurity ending in a brief ‘reign of terror*, when its ranks had been purged of actual or imagined enemies of the state. A number of senators had com­promised themselves by co-operating with Domitian in his war against individuals and parties within the Senate. Any senator who had survived this experience untarnished and who was sensitive to his reputation would think twice before proceeding against a fellow senator in the senatorial court. Second, the prosecution of a senator was to be avoided because the accused was unlikely to lack powerful supporters who were capable of creating trouble for the prosecutor. Third, rank-and-file senators felt a natural sym­pathy for a senator under attack, and antipathy for any assailant, especially if he was a non-senator or a representative of non­senators.

Pliny attacked a senator willingly once, and, considering what has just been said, his choice of opponent and his tactics on that occasion deserve scrutiny.^[LVI] First, Pliny singled out a senator who had played some part in the prosecution and condemnation of Helvidius Priscus. Pliny never specifies the exact charge he pro­posed to lay against Publicius Certus; it is said only that Certus had committed the ultimate in crimes: ‘Moreover, though many crimes had been committed by numerous persons, none seemed so shocking as the violent attack in the Senate-house made by a senator on a fellow senator, by a praetorian acting as judge on a

 51 consular who had been brought to trial.’¹ If Certus’ action was that of a common accusator, Pliny had only the public interest in mind when he called for his punishment (§21). Next, Pliny took the first steps towards instituting legal proceedings, but soon let the matter drop. He presumably listened to the advice of his consular friends, who warned that Certus had both influence (gratia) and support (amicitia) (§ 11). But Pliny was too circumspect not to have been aware of this from the first (§ 12). It is unlikely that he seriously intended to bring Certus to trial. Finally, Pliny must have known that whatever odium (invidia) he incurred would be more than balanced by the credit he gained with two groups in the Senate, those who approved of his attack and those who ap­plauded his withdrawal.

Thus Pliny did not prosecute senators idly. It is no surprise to find that he acted as counsel to provincial plaintiffs only when ‘drafted’ by the Senate at their request. In Pliny’s eyes the enter­prise was unsafe, and periculum, or the danger of arousing odium, is a regularly recurring theme in the letters relating to trials. It is not too harsh a judgement to say that performing this duty (tnunus) brought him some mental conflict but little risk. If as counsel for the prosecution he painted the crimes of a governor black, it was expected that he would do so, and his efforts would not necessarily have any bearing on the Senate’s decision. The Senate could still treat the defendant with leniency. As is revealed by the aftermath of the trial of Baebius Massa, an advocate in a repetun- dae case was only really in danger if it was considered that he was going beyond his brief. A senatorial advocate was expected to go so far but no further in his service to his non-senatorial clients.^{[57] [58] [59]}

Baebius Massa in a.d. 93 was condemned for repetundae.¹ His assets were placed in the care of the consuls. It seems that there was a risk that Massa would recover them before compensation was paid to the provincials. This, at any rate, was the opinion of Pliny’s co-advocate Herennius Senecio, who persuaded a re­luctant Pliny to go with him to the consuls. The difference of attitude in the two men is marked. Senecio was truly concerned with the interests of the Spaniards whom Massa had oppressed, and was prepared to fight on until they were fully compensated; Pliny, on the other hand, felt that his job was done at the conclusion of the trial proper—he was evidently less troubled about the provincials’ rights than about his own popularity in the Senate. Senecio was charged by Massa with impietas, that is to say, with having gone beyond the responsibilities of an advocate.² Pliny, to his credit, quashed the charge by pointing out that he himself must be either Senecio’s accomplice in impietas or Massa’s in praevaricatio (collusion). That this manoeuvre was successful, together with the fact that the complaint was filed against Senecio alone, is surely proof that Pliny’s conduct in this case was not such as to expose him to the enmity of Massa or anyone else.³

There was not much danger involved for Pliny in his prosecution of Caecilius Classicus on behalf of the Baeticans, because Classicus was dead.⁴ As a result Pliny does not question the utilitas of the proceedings (§ 8), which were devoted in the main to the prosecu-

^x Ep. 7. 33. On the inequitable aspects of the repetundae trials see P. A. Brunt, Historia io (1961), 217 ff.

²               See A. N. Sherwin-White, Commentary 446. It is of course true that impietas towards an Emperor is equivalent to maiestas (e.g. Tac. Ann. 6. 47; cf. Pliny, Pan. 33. 3), but the context suggests a different object of impietas here: ‘Massa questus Senecionem non advocati fidem sed inimici amaritudinem im­plesse impietatis reum postulat.’

³               Pliny speaks twice of the periculum which he ran as a result of his prosecu­tion of Massa. See Ep. 3. 4. 6: ‘Praeterea cum recordarer, quanta pro isdem Baeticis superiore advocatione etiam pericula subissem’; also ibid. 7. 33. 3 (to Tacitus): ‘iucundum mihi futurum si factum meum, cuius gratia periculo crevit, tuo ingenio tuo testimonio ornaveris.’ The reference to gratia reveals that in fact Pliny gained credit (at least in his own judgement) from his advocacy, as he did from attacking Publicius Certus.

⁴               lang=EN-US>The trial is described in Ep. 3. 9. For his feelings on the death of Classicus see ibid. 3. 4. 7: ‘Ducebar etiam quod decesserat Classicus, amotumque erat quod in eiusmodi causis solet esse tristissimum, periculum senatoris*. Pliny suffered brief, minor discomfiture in the course of the trial. Ibid. 3. 9. 25-6.

 $3 tion of Classicus’ associates. No doubt both Pliny and the Senate were relieved that the two chief confederates of Classicus were provincials. The Senate overruled their plea that they had been compelled to obey their governor’s orders—although the defence of superior orders was, it seems, usually effective in Roman courts¹ —and exiled them for five years. Four other defendants are re­ferred to, and of them three were acquitted and one exiled from Italy for two years. It may not be accidental that the three who went free were all of senatorial family—they were Classicus’ wife, Casta, his daughter, and his son-in-law—while the exile was an equestrian. The acquittal of Casta, for one, was not a foregone conclusion. The provincial prosecutor Norbanus Licinianus was charged with collusion with her. But if he was guilty, Casta was no less so; and if she had tried to come to an arrangement with him, she must have had something to hide. Pliny saw the implica­tions of her collusion, and claims to have emphasized them in his speech, but without success (§ 34).^{[60] [61]} But Pliny’s own account of the third stage of the trial, the stage in which the debate over Casta took place, casts suspicion on the truth of this claim. Pliny explains to his correspondent that it was decided to group together several defendants in this third phase of the trial, lest the length of the case and the tedium of it caused the judges to lose a strict sense of justice {iustitia... severitasque) (§ 19). We can see from his report that it was his own insistence on Casta’s alleged innocence rather than the Senate’s boredom which was responsible for her acquittal. We can also be sure that the Senate would never have been too much asleep to fail to pounce on Licinianus, convict him of collusion by an irregular procedure, and sentence him to a more severe penalty than was normal or warranted.^[62] He was a mere provincial, one, more­over, who had not kept his hands clean in the reign of Domitian.^[63]

In prosecuting Marius Priscus on behalf of the Africans, Pliny felt he had to tread more carefully.¹ He stresses in his letter to Arrianus that he and Tacitus were conscripted for the task (ad- esse provincialibus iussi). Pliny in fact had begged unsuccessfully to be excused, on the grounds that he was at the time prefect of the public treasury.² Priscus pleaded guilty to repetundae and asked for a committee of assessors to decide what compensation was due. But the two advocates blocked this move by bringing to the notice of the Senate crimes of saevitia or cruelty (as opposed to the mere extortion of money) which Priscus was attempting to hide. Pliny finds it necessary to explain to his correspondent that he and Tacitus had judged it their duty so to act (existimavimus fidei nostrae convenire), and Arrianus was clearly meant to admire their courage in pressing for a full hearing of the provincials’ com­plaints against a man of such fame (claritas). By the time Pliny was called upon to make his major speech against Priscus, the difficulty of the case (causae difficultas) had increased—the defen­dant who was once a consular and a member of a priestly college was now neither. It was a heavy task (perquam onerosum) to attack someone already condemned and deprived of status. Pliny knew that sympathy aroused by Priscus’ situation would draw attention away from the serious nature of the remaining charges against him (atrodtas criminis). There was, in fact, a strong body of sup­port for Marius Priscus. The proposal even to consider the charges had been passed only with difficulty;³ and at the conclusion of the hearing, when there could be no doubt about his guilt, a majority seriously considered voting against any additional punishment, apart from the payment into the treasury of the 700,000 HS Priscus had received for flogging, condemning to mines, and strangling a Roman equestrian. It should be noted that the penalty finally decreed for Priscus, exile from Rome and Italy, was thought to be severe (§ 1). The implication is that similar crimes at this period were normally punished even more leniently, by loss of

Chrys. Or. 34. 9, for the bad reputation won by provincials who prosecuted their governors.

¹ Pliny, Ep. 2. 11.                                                               ² Ibid. 10. 3A. 2.

³ Ibid. 2. 11. 6: favor et misericordia had had an initial impact of considerable proportions.

 55 status, payment of compensation, and perhaps a short period of exile; and that permanent exile was not inflicted, much less capital exile (or permanent exile with loss of citizenship and prop­erty). Again, it is significant that Marius Priscus was penalized no more harshly than Marcianus, the African from Lepcis who had paid over the 700,000 HS. The crimes of Priscus and Marcianus were hardly comparable in gravity; but neither were the criminals alike in status.

Pliny defended lulius Bassus, proconsul of Bithynia, on a charge of repetundae. Now at last he could show a real enthusiasm for his task.^[LXIV] To his great satisfaction, the Senate voted for Bassus (who had undeniably broken the repetundae law by accepting ‘gifts’) a milder penalty than was prescribed in the law: he retained his seat in the Senate, and was required only to pay compensation. Caepio Hispo, the mover of the victorious motion, argued that Bassus’ action was illegal but not without precedent, and that in such cases it was open to the Senate to adjust the penalty:

licere senatui... et mitigare leges et intendere (§ 17).

It is interesting to watch Pliny—who, incidentally, agreed with Hispo’s reasoning (sicut licet)—at work as chief advocate for Bassus. Not that his technique is likely to have been at all remarkable: the special pleading for the defendant, the appeal ts che defendant’s family background (to excite admiration) and to his chequered career (to arouse compassion), and the abuse of the provincial prosecutors were presumably stock features of any speech for the defence. They were no less effective for that, as is shown on this occasion not only by the generous treatment of the defendant, but also by the way the regular animosity of the Senate towards provincial prosecutors erupted into the attempted prosecution of their leader, Theophanes. Senatorial partisanship is nowhere more graphically demonstrated than in the trial of lulius Bassus.¹

Thus Pliny has left us an exceptionally vivid picture of the operation of the senatorial court in his heyday. The relevant letters illustrate the various ways in which the Senate showed partiality towards senatorial defendants. In addition, the freedom with which the court functioned is striking. Trajan was apparently disinclined to intervene in its proceedings. He is mentioned in connection with two cases. First, in the Varenus Rufus case, he was asked to break the deadlock caused by the presence of two rival Bithynian delega­tions, one seeking to impeach Rufus, the other anxious to withdraw the accusation.¹ Second, Trajan attended the main hearing of the trial of Marius Priscus, but only as presiding consul. Beyond urging Pliny in the midst of his five-hour speech not to overstrain himself, he seems to have taken no active part in the trial.²

Letters of Pliny also throw light on the pre-Trajanic period. The Publicius Certus affair, which Pliny discussed in a letter to Ummidius Quadratus, belongs to Nerva’s reign.³ The suggested prosecution did not eventuate. But Pliny claims that his boldness in attacking Certus was applauded in the Senate:

Almost the entire Senate embraced me with open arms and over­whelmed me with enthusiastic congratulations for having revived the practice, long fallen into disuse, of bringing measures for the public good before the Senate at the risk of incurring personal enmities; I had in fact freed the Senate from the odium in which it was held amongst other orders for showing severity to the rest while sparing its own members by a sort of mutual connivance.⁴

himself to summon witnesses from the province, e.g. 5. 20. zff. espec. 7: 'impetravimus rem nec lege comprehensam nec satis usitatam, iustam tamen.’ When this was contested by the provincials, they lost the support of those who had had doubts about the move in the first place. See 6. 13, espec. § 2, where Pliny attacks Claudius Capito for his ‘irreverence’ in challenging a S.C. in the Senate. See also 5. 20. 4 ff., cf. 7. 6. 2 for Pliny’s opinions of another provincial prosecutor, Fonteius Magnus. In 7. 6. 2 Pliny complains that Magnus pestered the senatorial advocate, Nigrinus, until the latter asked the consuls to force Varenus to show his accounts. Why did Magnus have to apply any pressure at all?

¹               Ibid. 7. 6. 14, cf. 6. See also ibid. 6. 13. 2: the Bithynians approached the Emperor to complain about the concession given to Varenus (see last note). He merely passed the matter back to the Senate.

* Ibid. 2. 11. ioff., espec. 15.

³  Ibid. 9. 13.

⁴  § 21: ‘non fere quisquam in senatu fuit, qui non me complecteretur

 57 This remark, for all its tendentiousness, gives us a rare opportunity of savouring something of the dissatisfaction of men outside the senatorial order with the abuses of senatorial privilege. Pliny, of course, was commenting on the period which preceded the in­auguration of the ‘Golden Age’ by Nerva.

Ironically, perhaps, we must turn to two Domitianic trials for examples of senatorial favouritism to senators in the pre-Nervan age. The trial of Baebius Massa took place in a.d. 93.¹ We saw that the consuls of the year could not be trusted to ensure that the provincials of Baetica recovered what Massa had extorted from them; and that the Senate’s concept of ‘legal aid’ to provincials was so circumscribed that senatorial advocates were not expected to take any interest in their provincial clients’ welfare after the termination of the trial proper. In such ways as these the rights and interests of the provincials were neglected by the senatorial court. The second Vestal Virgin affair preceded this trial by perhaps three years. Celer, an equestrian, was beaten to death with rods in the assembly (comitium) for incest. Valerius Licinianus, a senator of praetorian rank, was advised by those whose business it was (ab its quibus erat curae) that he might avoid the same fate by a confession. He took the hint, confessed, and was permitted a ‘soft’ exile (molle exilium). Nerva made the exile even ‘softer’ by transferring him to Sicily.²

The two cases make an interesting comparison. The Vestal Virgin trial for incest was the culmination of a campaign waged by Domitian, as corrector of public morals, against immorality in the higher orders and in the state religion.³ We may be sure that he watched over the Vestal Virgin trial from beginning to end, and that each penalty was sanctioned by him. The only doubtful point is whether he granted Licinianus a milder sentence purely because of his status, or in response to the requests of friends of exoscularetur certatimque laude cumularet, quod intermissum iam diu morem in publicum consulendi susceptis propriis simultatibus reduxissem; quod deni- que senatum invidia liberassem, qua flagrabat apud ordines alios, quod severus in ceteros senatoribus solis dissimulatione quasi mutua parceret ’

« Ibid. 7. 33·

³ Ibid. 4. 11. 13. On the date see Sherwin-White, op. cit. 283. The first Vestal Virgin trial probably belongs to a.d. 83-4.·

’ See the summary in Suet. Dom. 8. 3 ff.

Licinianus in close proximity to him.¹ Be that as it may, Domitian was as much involved in this trial as in his senatorial maiestas trials. The trial of Baebius Massa, however, resembles the trials of Classicus, Priscus, and Bassus in atmosphere. Pliny gives the im­pression that in all these trials the Senate was in complete control of the proceedings. There is no hint of imperial interference in Massa’s trial, at least in its aftermath, which alone is described in any detail by Pliny.^{[65] [66]} It cannot, of course, be inferred that Domitian followed a consistent policy of non-interference in repetundae trials,^[67] or in all senatorial trials which did not involve his policies or his own person as Emperor. But at least it seems legitimate to conclude that Domitian, for whatever motive, did not constantly subject the Senate to his paralysing influence.

The preceding discussion, ostensibly about crimes of less gravity than maiestas, has dealt in the main with repetundae with or without saevitia. This was unavoidable, as Pliny, our major authority, has little to say about other crimes.^[68] However, it does not follow that Trajan’s Senate could not try senators on other charges, more particularly, on charges which involved higher penalties than repetundae carried. Trajan swore not to kill or disfranchise senators on his own authority, and this is an in­dication, however indirect, that the Senate was entitled to pass sentences of death or capital exile on senatorial defendants.^[69]

Post-Trajanic evidence

The history of the senatorial court after the close of Trajan’s reign is known only in the most shadowy outlines. Some have even argued for the virtual disappearance of senatorial jurisdiction by the Severan age. But they reach this conclusion on the basis of a few texts from the Augustan History (in judicial matters, at least, a source of dubious value), which show, at the most, that the Emperors sometimes tried senators.¹ Besides, positive evidence of the continued functioning of the court is provided by the two suits against the famous Athenian sophist Herodes Atticus, by

¹  (1) Mommsen (Strafrecht, 220) thought, on the basis of SHA Marcus 24. 2 (‘capitales causas hominum honestorum ipse cognovit’), that Marcus brought to an end the capital jurisdiction of the Senate. Ibid. 10. 1 perhaps contradicts (’senatum multis cognitionibus et maxime ad se pertinentibus iudicem dedit’). See also Dio 71. 30. 1-2, cf. SHA Marcus 25. 5; and see below, pp. 60-1 (Herodes). There were certainly treason trials (at least) in the Senate in later reigns.

(2)    Bleicken (op. cit. 117 ff.) appears to believe, first, that maiestas trials were ruled out both in the Senate and in the Emperor’s court (but see above, pp. 47 ff.); second, from SHA Hadr. 8. 8, Marcus 10. 6, Alex. Sev. 21. 5, that non-political cases (as a concession to the Senate) were dealt with by the Emperor with a consilium made up exclusively of senators. The second text is the most explicit, but it is not clear whether it implies that the Emperor followed this procedure in all capital cases involving senators, or in all which were brought before him (‘quotiens de quorum capite esset iudicandum’). The former interpretation seems less likely, considering the other evidence for Marcus (above). Of course, the text does not refer to non-capital cases. The first and third texts carry no implication of the universality of the practice, and the kind of cases is not specified. All three texts are generalizations.

(3)    Some other passages from SHA are ambiguous or unspecific, and not much can be inferred from them with safety. On repetundae, one cannot argue for the termination of senatorial repetundae suits in the second century (sc. after Trajan) from SHA Ant. Pius 10. 7 (*si quos repetundarum damnavit, eorum liberis bona paterna restituit*) and SHA Sev. 8. 4 (‘accusatos a pro- vincialibus iudices probatis rebus graviter punivit’). Of course, no Emperor was directly responsible for all the actions which his Biographer(s) ascribed to him. In judicial matters there is the added complication that an Emperor could influence directly a decision made in the Senate.

(4)    Dig. 48. 5. 2. 6 fnam Claudius Gorgus vir clarissimus uxorem accusans cum detectus est uxorem in adulterio deprehensam retinuisse, et sine accusatore lenocinio damnatus est a divo Severo’) does not rule out the existence of sena­torial trials in the Severan age (let alone under the Antonines), even if we can be sure that Severus personally tried and condemned Gorgus. (Severus was particularly concerned to fight adultery and kindred crimes, or at least for a time. But there were certainly too many cases for him to cope with in person. See Dio 76. 16. 4.) Cf. Dig. 48.13.12.1, on sacrilege (‘Divus Severus et Antoninus quendam clarissimum iuvenem, cum inventus esset arculam in templum ponere ibique hominem includere convictum in insulam deportaverunt’). the senatorial maiestas trials in the reigns of Hadrian, Pius, Mar­cus, and Septimius Severus, and by the portion of the speech of Maecenas which deals with senatorial jurisdiction.

Herodes Atticus was indicted in A.D. 144 by Athenians on a number of counts, probably in the Senate.¹ In a revealing series of letters between an advocate for the prosecution, Fronto, and Herodes’ friend and patron, the young Marcus, Marcus is shown to have exerted his influence strongly, though with tact, in favour of Herodes before the trial took place. Fronto was not prepared to gloss over the facts which bore on the case—one free man killed and others beaten and robbed, a son’s lack of respect for his father’s prayers, cruelty, avarice, butchery—but he agreed not to go beyond those facts, not to speak on the defendant’s ‘character, and the other aspects of his life’.^{[70] [71]} This was apparently sufficient for Marcus—‘you have taken my advice’ (comprobasti)—who professed himself anxious only for Fronto’s reputation: no harm would be done to his good faith (Jides) or honour (modestia) if Fronto left his private feelings unspoken and kept to what was relevant to the case.title="">^[72] Why was Marcus so restrained ? He was well aware that every advocate mindful of his career must put a strong case in order to keep faith with his clients and attract public attention. Marcus was simply reminding Fronto that he had a second obligation, to his patron. No doubt Fronto took the point, and chose to give up the small chance he had of influencing the outcome of the case rather than run the risk of forfeiting the friendship of the prospective Emperor. We have no record of the trial itself, but it seems that Herodes was acquitted—perhaps Marcus did more for Herodes than hold Fronto in check.^[73] Later,

 6t at the beginning of Marcus’ reign, Herodes was accused of murder­ing his wife, Regilia. His opponent was formidable, a consular like himself and the brother of the dead woman. Herodes was again freed by the Senate. But this time, if we believe Philostratus, ‘the truth prevailed’.¹

The senatorial maiestas trials have already been discussed in some detail. Here it is simply necessary to stress that they, and especially the Severan trials, form an essential part of the back­ground of the passage in Maecenas’ speech, and help to establish its contemporary relevance.^{[74] [75]}

Dio began working on his History in the reign of Septimius Severus, when executions for maiestas, more often than not follow­ing senatorial hearings, were relatively frequent.^[76] When Dio in­sisted, through the mouth of Maecenas, that an Emperor should both pass to the Senate cases involving the death penalty, and leave the Senate free to reach its own decision in such cases, he could not but have had Severus in mind. Severus by his oath (backed by a senatorial decree) had acknowledged the first of these requirements only, and had circumvented it by forcing the sena­torial court to pass death sentences on his enemies. Moreover, if Severus’ hypocritical behaviour helped Dio formulate his demands, Caracalla’s blatant murders in the opening years of his reign gave Dio a target at which to aim them.^[77] Thus it can be asserted with some confidence that the reference to the death penalty in the passage is pointed, and pertinent to Dio’s age.

What of the reference to loss of citizenship (or political position)^[78] and capital exile in the same passage? Had the Senate lost the power to inflict these penalties, and was Dio requesting its return ?

According to Herodian, Severus swore neither to kill senators nor to confiscate their property without a (sc. senatorial) trial. The latter sanction, moreover, is presented not as a mere adjunct of the former.¹ This is of consequence, as confiscation of property was regularly associated with the sentence of capital exile.³ We saw - that Trajan’s oath mentioned death and disfranchisement, which was also a necessary concomitant of capital exile.³ In Trajan’s case we have the correspondence of a senator to prove that his Senate was concerned to protect senators against lesser sanctions than death, and that it was permitted to administer those sanctions against senatorial defendants. Herodian’s version of the oath of Severus may be a sign that the Senate of Severus had lost neither its concern with the penalties of disfranchisement and exile (and associated sanctions) nor its power to administer them to its own members.

In general, it is difficult to see what motive any of the Antonine or Severan Emperors could have had for bringing to an end the jurisdiction of the Senate. The Senate had long since lost its role as the High Court of the Empire. The scope of its jurisdiction had been limited by the development of the Emperor’s court, and it could not compete with that court as a rival. Dio’s plea was for a senatorial trial for senatorial defendants in cases of any gravity, and few senators of his time would have wished for more. It cost the Emperor nothing to concede to the Senate a court of this type, and there were compelling political reasons for doing so. Above all, the Senate would undoubtedly resent the withdrawal of a privilege exercised almost from the inception of the Empire, and prized not only for the real benefits it brought to senatorial defendants, but also as a status-symbol. Senators could never argue for the maintenance of their jurisdiction with reference to specific legal enactments. But in the course of a century or more of judicial activity they had come to regard it as a permanent ^{[79] [80]}

 63 prerogative to which they were entitled, rather than as a revocable concession which they were allowed by the Emperor’s kind favour.

I would propose, then, that the senatorial court maintained a.meaningful jurisdiction into the Severan age;¹ and that the point of conflict between Senate and Emperor was the control of the senatorial court rather than its continued existence. Control be­came an issue primarily because of the overuse or misuse of the maiestas law. Had it not been for the arraignment of political criminals, the disengagement of the Emperor from the senatorial court, which was encouraged by the growth of his own jurisdic­tion, might have been more or less complete? The policy of some Emperors probably varied according to the circumstances of the particular trial. This was suggested tentatively above in the case of Domitian; Hadrian is perhaps a less controversial example. For all we know, Hadrian may have permitted his senatorial court to operate in relative freedom when it met to try offences which did not directly involve him as Emperor. The prohibition of ap­peals from the Senate to the Emperor which is associated with his name is an indication of a general unwillingness on his part to overrule the Senate in judicial matters.³ Yet his reputation was tarnished by the judicial murders of leading senators and his involvement of the Senate in those murders. An Emperor who was well regarded in senatorial circles was likely to be one who followed a policy of non-intervention consistently, from maiestas trials down, if he did not rule out maiestas trials altogether.

^x It is not proposed that the Senate tried all senatorial defendants on serious charges. An Emperor might take a case if requested to do so.

²               i.e. an Emperor would have found it easier to allow the Senate a large measure of autonomy in its jurisdiction if cases in which his own dignity and safety were involved had been effectively excluded from its sphere of interest. Of course, the Emperor’s overriding discretionary powers would not have been curtailed under such conditions. Thus Trajan showed only a remote, fatherly interest in the Senate’s judicial activities, while retaining ultimate authority over them. See Pliny, Ep, 3. 20. 10 and 12 (not specifically on judicial matters).

³               Dig. 49. 2. 1. 2: ‘sciendum est appellari a senatu non posse princi- pem idque oratione divi Hadriani effectum.’ Despite Bleicken, op. cit. 118, it is not obvious why the rule should have referred to civil and not criminal cases.

Conclusion

Different Imperial attitudes and policies towards the senatorial court, from reign to reign and in individual reigns, produced different discrimination patterns within that court in the period from the Flavians to the Severans. One pattern is more character­istic of the Julio-Claudian age, when the senatorial court functioned under the Emperor’s active supervision. Under such conditions the fate of senatorial criminals was likely to be influenced by chance factors, especially the presence of Imperial favour and Imperial fear. A second pattern is exemplified in the Trajanic repetundae trials, in which the Emperor apparently played no part, while the Senate was left free to favour senatorial defendants because of their rank, that is, because they were senators. Dio/ Maecenas envisaged that an Emperor would follow a policy of non-intervention for political considerations, because he was mindful of his position and of the desirability of maintaining good relations with the Senate. But in addition he might very well approve of the use that the Senate made of its freedom, because of his own aristocratic prejudices.