THE SENATORIAL COURT UNDER THE JULIO-CLAUDIANS

The sources for the Julio-Claudian period, as is well known, are preoccupied with the fortunes of Emperors and their conflicts with the Senate.

The result is an imbalance in the evidence for the administration of the criminal law. Allusions to the activities of the public jury­courts are few, just sufficient to indicate that these courts, or some of them, still existed; and the even rarer references to dispensation of justice by the urban prefect reveal the existence of a tribunal about which we should otherwise have been quite ignorant. In contrast, the senatorial court is comparatively well documented. The reason must be that judicial murder and the fall of important personages, which were directly relevant to the main theme, were commonly accomplished in the senatorial court; whereas the jury-courts and the urban prefect could not have handled political offenders, or, at any rate, those of high status, after Augustan times. Again, while a great deal can be discovered about political trials in the Senate, less is known of some subsidiary functions which the Senate undoubtedly exercised: notably, the punishment of conspicuous or scandalous crimes committed against senators, and the punishment of conspicuous or scandalous crimes tout court.

Type of charge and status of defendant

In a recent study Bleicken has argued that the senatorial court was no mere ‘Pairsgericht’; that is to say, the court did not concern itself exclusively with the trial of senatorial criminals. Tiberius gave it the responsibility of punishing crimes against the state, whether they were committed by senators, equestrians, or foreign princes. Conversely, Bleicken observes, it was possible for senators to be tried in the quaestiones, for as long as the guaerizb-system existed.^{[10] [11]}

These statements are sound, as far as they go. Bleicken is right to admit the possibility that senators might appear as defendants in the public courts. However, it may be felt that a more informa­tive conclusion could be reached if a close study were made of the evidence for the Senate’s jurisdiction in the field of non-political crime.

Again, the accounts of treason trials in the primary sources justify the conclusion that the senatorial court was not a ‘Pairs­gericht’ (in the sense defined above). But Bleicken had previously noted that the Senate, in the reign of Tiberius, was able to try any criminal case which a public court was competent to try.^[12] If what induced the Senate to meet as a court on any occasion was ‘only its interest in the case’, then the possibility is left open that,

 i₉ standard political crimes such as treason and extortion excepted, the senatorial court was a ‘Pairsgericht’.

Finally, whether senatorial defendants could expect a senatorial trial in respect of any charge, or some charges, is only one issue, the interest of which is limited unless it is linked with another: to what extent was it an advantage for a senator to be tried by his peers in the period of the Julio-Claudian Emperors ? It is also rele­vant and important to inquire into the circumstances in which non-senators were brought before the Senate as defendants, and to see how they fared in comparison with senatorial defendants.

Thus Bleicken’s account provides a useful starting-point, but a more detailed analysis is called for of the issues which he raises. The first task is to arrive at some estimate of the extent of the Senate’s jurisdiction, and to explain which principles governed the Senate’s handling of some cases and not others.

In A.D. 15 Tiberius was asked by a praetor, presumably the praetor responsible for the quaestio de maiestate, whether he should accept maiestas charges.¹ The reply, ‘the laws must be administered’ (exer- cendas leges esse), seems to carry the implication that Tiberius envis­aged the holding of maiestas trials in the quaestio. However, to judge by the number of such trials which were staged in the Senate, it is difficult to believe that more than the barest trickle of cases went to the quaestio.¹ It must have been virtually automatic for accusers to lodge accusations of maiestas with the consul or Emperor rather than the praetor, and for the accusations, once accepted, to be heard in the Senate. The Senate took these cases because it was pre-eminently responsible for the punishment of crimes against the state.

While members of all ranks could be and were prosecuted for maiestas, only a restricted circle of persons were liable to charges of ^{[13] [14]}

repetundae.

¹               For the content of the repetundae law see, e.g., P.

²               For early signs of senatorial jurisdiction in repetundae cases see S.C. Calvisianum (EJ 311. v (5 B.C.): procedures for compensation), and probably the trial of Volesus Messalla (Tac. Ann. 3. 68: Tiberius wrote libelli concerning his behaviour to the Senate, which at some stage passed an S.C. against him. The charge was repetundae plus saevitia, cruelty).

³               Exception: Dio 60. 33. 5, and see p. 86.

⁴               Gracchus transferred control of the jury-court (set up by the Calpurnian law of 149 b.c.) from senators to equestrians. See Veil. Pat. 2. 6. 3; 2. 13; 2. 32; App. BC 1. 22; etc.; and P. A. Brunt, 2nd Intern. Conf, of Econ. Hist. 1962

 21 legislation struck a blow at the narrow senatorial interest, so the Senate’s recapture of control over repetundae trials in the Imperial period was a victory for that interest.¹

A third crime which was tried in the Senate with some degree of regularity was adultery.² Why were adultery trials held in the Senate ? Adultery was iiot a political crime in any obvious sense, although Augustus had emphasized that adultery with a princess of the royal house was akin to maiestas.²

We should note first that an adultery charge was sometimes linked with more sinister charges like magic or maiestas.⁴ In Tiberius’ reign such counts were easily tacked on to the main one, and, when the Emperor was in command of the situation and of himself, as easily discarded.® During his prolonged absence at Capri, however, the additional charges tended to stand, and were the means of securing either the execution or the suicide of the accused.

(1965), i. 141 ff. (=The Crisis of the Roman Republic, ed. R. Seager, 1969, 107 ff.). For most of the first century B.c. and under the Empire, the majority of jurors in the quaestio de repetundis (as was the case in other quaestiones) were non-senators. For repetundae trials before the Imperial Senate see Dio Chrys. Or. 34. 9: the accusation is -nepl vfyepovoov... irpos ijyi/xovas.

¹               Cf. Brunt, Historia 10 (1961), 199.

²               The only references to adultery trials in the quaestio de adulteriis are Dio 54. 30. 4 (Aug.), and probably Tac. Ann, 3. 38 (Tib.).

³               Tac. Ann, 3. 24. Cf. 2. 50: the accuser of Appuleia Varilla included adultery as part of the maiestas charge on the grounds that Varilla was a niece of Augustus’ sister. But Tiberius ruled that the adultery charge should be considered separately, under the adultery law. See also ibid. 11. 12: adultery of C. Silius with the wife of Claudius, Messalina, could clearly be regarded as treason, even before it led into marriage (11. 26 ff.). See also 15. 50: Tigellinus’ charge against Faenius Rufus.

⁴               See nn. 3 and 6 for references to trials of Appuleia Varilla, Claudia Pulchra, Mamercus Aemilius Scaurus, Albucilla et al,

⁵ See pp. 37 ff., below. The maiestas charge against Varilla was dropped.

⁶               Pulchra: ibid. 4. 52 (note that after Agrippina had taken her life, Tiberius taunted her for having committed adultery with Asinius Gallus, ibid. 6. 25); Scaurus: ibid. 6. 29; Albucilla, etc.: ibid. 6. 47-8, cf. Dio 58. 27. 2. Cf. 6. 40: the Aemilia Lepida who schemed with Sejanus for the removal of her husband

In short, while adultery may have been in essence a non­political crime, an adultery trial could be launched for political.ends.¹

Yet the adultery trial would not have been an effective weapon of political intrigue if the Senate had not been interested in the punishment of conspicuous moral lapses in themselves. In a.d. 19, according to Tacitus, a certain Vistilia was tried by the Senate and exiled to the island of Seriphos. A daughter of a senator of praetorian rank, she had tried to register herself with the aediles as a prostitute.² In the same chapter Tacitus mentions the ex­pulsion of ‘Egyptian sacred rites’ from Italy. This is an oblique reference to a scandal described in some detail by Josephus, which involved an equestrian Decius Mundus, a noble Roman lady Paulina, and priests of the cult of Isis. The culprits were punished presumably under the adultery law, and the cult ex­pelled.³ Again, Suetonius refers to an undated trial involving one Gaius Laetorius. Nothing is known of the background to the trial. He was a patrician, and this may be sufficient explanation of the bringing of the indictment.⁴ Finally, Aquilia and her lover Varius Ligur were condemned in what was apparently a simple adultery trial.⁵

I would suggest that adultery cases went to the Senate primarily because of the special significance which first Augustus and then Tiberius attached to the adultery law. It seems that the law, which was Augustus’ creation, was seen by both Emperors as of out­standing importance for the preservation of the social and political order. Augustus made the law the basis of his social legislation designed to rehabilitate marriage; he wrote into the law sanctions

Drusus Caesar was a victim of the enemies of Sejanus. No political charge against her is recorded. Yet she took her own life—perhaps adultery with a slave was a more serious crime than simple adultery and earned a capital sentence.

¹                                                                                                                                                                                                                         lang=EN-US>Cf. ibid. 14.62-4: Octavia, wife of Nero, was exiled and later forced to die. Whether the Senate or the Emperor condemned her is not known; ibid. 11. 2 if.: Valerius Asiaticus was tried by Claudius on charges that included adultery. Presumably both charges were baseless.  ² Ibid. 2.85.

³               Jos. AJ18, 65 ff. Josephus’ account implies that Tiberius himself tried the offenders and pronounced judgement on them. It is more likely that he sent the case to the Senate and took a leading part in the investigation.

⁴   Suet. Aug. 5.                                                                 ^s Tac. Ann. 4. 42.

 23 of enhanced severity; and he enforced the law within his own family. Tiberius, for his part, showed a preparedness to punish offenders with some strictness.

But not all adultery trials are likely to have been held in the Senate. Almost all the cases referred to above involved defendants of senatorial stock, as far as can be ascertained.¹ This would suggest that the Emperors were primarily concerned with the morals of the nobility; and the fact that the Augustan marriage laws forbade only marriages between members of the senatorial order on the one hand, and freedmen, freedwomen, and those of degraded family or profession on the other, serves to reinforce this notion.²

The alternative is to hold that the sources omitted to mention a whole group of senatorial trials involving non-senators as prin­cipals in cases covered by the Julian law on adultery. The scandal of a.d. 19 offers no support to this theory, even though the accused on this occasion were an equestrian, a freedwoman, and presumably foreign priests. The dignity of a noble woman and her distinguished husband (probably one of the consular Sentii Saturnini) had been outraged, and a prompt revenge was due. Moreover, Tiberius and the Senate saw the cult of Isis, which in the person of its priests had connived at the crime, as a menace to the state religion.³ The prosecution of Sextus Marius, the Spanish provincial, for incest (a crime probably punished under the adultery law at this time) also had special features. We may not believe Dio’s story that Marius’ daughter was desired by Tiberius and kept from him by the father. But the earlier friendship between the two men, the measures taken against the property of the condemned man, and his cruel punishment strongly suggest that Tiberius was deeply involved in Marius’ destruction, if he was not actually behind it. If so, it is not at all surprising that the case was, first, sent to Rome from the province, and second, tried before the senatorial

¹               This is true certainly of C. Laetorius, Scaurus, Varilla, Vistilia, Pulchra, and Lepida, and probably of Aquilia. Albucilla’s status is not known, nor that of her ex-husband, Satrius Secundus (described simply as Sejanus’ hench­man, e.g. ibid. 4. 34). But in any case her lovers included several eminent senators.

³Dig, 23. 2. 44.

³ On the case see Jos. AJ 18. 65 ff., and R. S. Rogers, Criminal Trials and Criminal Legislation under Tiberius (1935), 34 ff.

tribunal.¹ I would conclude that the fates of the bulk of the defendants from the lower orders were settled, like that of the Macedonian Antistius Vetus, in the quaestio de adulteriis, if by a court at Rome at all.^{[15] [16]}

Finally, the relative absence of reference to simple adultery indictments against ordinary members of the senatorial order deserves comment. Perhaps the sources were selective and passed over the more routine senatorial investigations. Even allowing for a few such indictments, it still seems likely that there was no even· enforcement of the adultery law within the senatorial order—if ‘enforcement’ is the word, for Tiberius launched no ‘crusade’ against adultery in the higher orders, and the private prosecutors,_z who alone could have carried out such a project, were already fully employed in a more lofty mission, that of protecting the Emperor against challenges to his maiestas.^[17] Some political scores were settled, as we have seen, through adultery trials. Otherwise probably only those offenders were punished who caught the eye: on the one hand, those whose immorality was conspicuous because of their distinguished birth and ancestry, and on the other hand those who openly advertised their dissolute lives.^[18]

There are some grounds for believing that with treason, ex­tortion, and adultery, we have exhausted the list of crimes in which the Senate showed a regular interest. This is supported by the account of the trial of Cn. Calpurnius Piso in a.d. 20 to be found in Tacitus’ Annals. Piso expected to be tried before the quaestio de (sicariis ef) veneficiis on the charge of poisoning Germanicus. For when Vibius Marsus urged him in a letter to come to Rome to plead his cause, Piso wrote in reply:

adfuturum ubi praetor qui de veneficiis quaereret reo atque accusa- toribus diem prodixisset.^[19]

But the investigation was held in the Senate as a concession to Germanicus, although Tiberius recognized that this was irregular. In his own words (or those attributed to him by Tacitus) he acknowledged that in ordering it he was not acting in accordance with the dictates of the law:

id solum Germanico super leges praestiterimus, quod in curia potius quam in foro, apud senatum quam apud iudices de morte eius anquiri- tur.. J

This statement would have been without point if the procedure had not been not only irregular, but also out of the ordinary.

The charge against Piso was certainly an unusual one. His alleged victim was Tiberius’ adopted son, to whom the Senate had granted imperium superior to that of any provincial governor. Moreover, Tiberius was inclined to believe that Piso’s military activities in the East were not far removed from civile bellum. Maiestas seems to have been a subsidiary charge. It is therefore surprising, not that the case was referred to the Senate, but that the case was not automatically sent to the Senate. At any rate, it seems legitimate to infer from the statements of Piso and Tiberius that a murder trial of lesser importance involving a senator as defendant would have been held in the quaestio.²

It is instructive to compare the trial of Piso with trials of other alleged murderers before the Senate. Livilla was convicted in a.d. 31 of a crime committed eight years earlier, the murder of Drusus, her husband and Tiberius’ natural son. She was also suspected of complicity in the ‘conspiracy’ of Sejanus.³ In a.d. 23 Rhescuporis, '* the Thracian king, was brought to Rome and condemned in the Senate. The murder of his nephew and rival Cotys was only one

¹               Tn this only we raise Germanicus above the laws, by inquiring into his death in the senate-house rather than in the forum, before the Senate rather than before a jury? Ibid. 3. 12. Tiberius was asked to undertake the investiga­tion himself, but after a preliminary hearing, he passed the whole matter to the Senate. Ibid. 3. 10.

²               The Augustan evidence shows that the quaestio was used in the earlier period. See Sen. Contr. 2. 5. 13 (Moschus, c. 20 B.C.); Suet. Aug. 56 (Nonius Asprenas); Dio 56. 24 (a quaestor, under a.d. 10).

³               Dio 58. 11. 7; 57. 22. 2 and 4; Suet. Tib. 62. 1. Cf. Tac. Ann. 12. 65: the destruction of Domitia Lepida, Nero’s aunt, for allegedly seeking to kill the Emperor’s wife, Agrippina, by magic (and for offences against order). The loca­tion of the trial is not known. style='font-size:11.0pt;line-height:90%'>of his crimes—he had upset Augustus* settlement of Thrace by taking up arms, and had disregarded Tiberius’ order to lay them down again.¹ In A.D. 24, the urban praetor M. Plautius Silvanus threw his wife out of a window. An irate father-in-law reported the crime to the Emperor. The matter was referred to the Senate, once Tiberius had satisfied himself that the woman had not com­mitted suicide. What followed is unclear: perhaps a trial in the Senate, perhaps an investigation by a committee of the Senate.^{[20] [21]} Finally, from the reign of Nero, in a.d. 61 the murder of the urban prefect Pedanius Secundus by one of his slaves led to a senatorial investigation.^{[22] [23]}

The charges against Livilla and Rhescuporis bear some resem­blance to those which Piso faced, and were ‘political’ in an ob­vious, accepted sense. That they were heard in the Senate is not' hard to understand. Next, the murder of any master by a slave was traditionally regarded as an outrage which threatened the existence of the Roman social order. It was therefore punished with the utmost cruelty. But presumably not every case of this kind was investigated by the Senate. On this occasion a consularis vir had been killed, and the retaliatory execution of the slaves ‘under the same roof (sub eodem tecto) was carried out by the senators to deter others from attacking their dignity (sua dignitas)* Murder by a praetor, while perhaps insignificant in the eyes of senators beside the murder of a prefect, was hardly an admirable example of magisterial conduct. In passing the case to the Senate Tiberius might have been guided, both by the conviction that the crime was a grave one (because of the person of the criminal), and by the feeling that only the Senate should try a magistrate (as it habitually tried pro-magistrates).^[24]

In sum, the Senate can only be shown to have handled murder charges which were coupled with maiestas charges and were themselves not far removed from maiestas charges, or which were unusual because of the status or office of the victim or agent. That senators accused of ‘simple’ homicide were also tried in the Senate in this period is theoretically possible. The large lacunae in the narrative of Tacitus may account for their absence. Or Tacitus and the other sources might not have bothered to mention such cases because of their relative unimportance. However, the excerpts quoted from Piso’s letter to Marsus and from Tiberius’ speech to the Senate appear to contradict that hypothesis. Most of those accused of homicide, whatever their status, would seem to have met their trial in the court where Piso anticipated facing his accusers, the quaestio.¹

To turn now to falsum, a trial of a.d. 61, described by Tacitus, is of central importance. The will of an old and wealthy senator had been forged. The prosecutor, Valerius Ponticus, had approached the praetor in charge of the quaestio de falsis, but was caught negotiating with the defence, and the case was transferred to the senatorial court. There is an oddity in the fact that while Ponticus was obeying the letter of the law in taking the case to the quaestio —this he did, in Tacitus’ words, specie legum—it was necessary for him to avoid the prefect’s court to do so. The crucial sentence runs:

pari ignominia Valerius Ponticus adficitur quod reos ne apud praefectum urbis arguerentur ad praetorem detulisset, interim specie legum, mox praevaricando ultionem elusurus.²

One point which cannot fail to strike the reader of Tacitus’ narrative is the degree of freedom which potential litigants (in

¹               According to Sen. Contr. 9. 5. 15 ff., Numisia Galla was tried for the attempted murder of her father before the centumviral court. This is the only sign that the centumviri ever sat over criminal cases of any description.

²               ‘Valerius Ponticus suffered the same degradation for having indicted the defendants before the praetor to save them from prosecution in the court of the prefect of the city, with the aim of defeating justice first by feigning legality and then by collusion.’ Tac. Ann. 14. 41.1 take it as certain that the affair which went to the praetor and not to the prefect was the falsum case. The use of alter shows that 14. 40-2 concerns two insignia scelera and not more than two. Falsum is forgery, of whatever kind. The Cornelian law on falsum embraced other offences also,such as bribery of a judge or witnesses and false testimony. See Dig. 48. 10.

falsum, at any rate) possessed in selecting a court. It appears that they were guided towards one court rather than another not by any regulation, but by customary practice, which could be readily modified to suit a particular end. Here the praetor in charge of the quaestio was evidently approached because his court was thought to provide the most suitable setting for the transaction of a shady deal. Similarly, the senatorial court was bypassed because neither party wanted publicity. It may also be inferred that if a speedy and just settlement had been desired (if, for example, Ponticus had been anxious to protect the rightful heirs against loss of money), the prefect’s court would have been chosen.

Further, the court of the prefect was apparently the regular court for falsum.¹ That is to say, if no special approach was made either to the praetor in charge of the quaestio de falsis, or to the consul who presided over the Senate, a case of falsum would be brought up in the prefect’s court.

Another aspect of the case deserves comment: the fact that the defendants were treated as one group for the purpose of the trial. It is true that Tacitus distinguished between senators and eques­trians on the one hand and alii minus illustres on the other, but this was his own division and corresponded to his own interests. Tacitus introduced the crime as one committed through ‘senatoris... audacia’, and his attention throughout the narrative is given to the ringleaders or most conspicuous offenders. There is no sign that only alii minus illustres were destined for the prefect’s court and then diverted to the praetor; or that those of higher status were, from the first, set apart for trial by the Senate. Reversion to the Senate came only when the dubious designs of the prosecu­tion had been exposed, and then it seems that all the defendants were sent before the Senate.

The following conclusions can be drawn from Tacitus’ account of the trial. First, it is confirmed that it was no novelty for high- status defendants to appear before either the prefect’s tribunal or the’jury-courts; and also that low-status defendants were not excluded from the senatorial court, at any rate when they were

¹ The significance of this point for the relationship of the jurisdictions of the prefect and the jury-courts is touched upon at a later stage. See p. 92. involved as accomplices in the crimes of their social superiors. Second, three courts had concurrent jurisdiction over falsum cases, but such jurisdiction was not normally exercised by the Senate (or by the quaestio) in the Neronian period at least, what­ever the status of the accused. Valerius Ponticus might of course have approached the consul in the first instance with a request for a trial in the Senate. Nevertheless, it was not considered worthy of note that he did not, despite the dimensions of the crime and the status of the victim and some of the criminals. Those factors, which so impressed Tacitus, ultimately led to a senatorial trial, but only after the negotiations of prosecution and defence were brought to public notice.

Such direct evidence as we possess for senatorial trials for falsum in the earlier period suggests that the above conclusions do not apply to the Neronian age alone. First, Aemilia Lepida, ar­raigned in the Senate in a.d. 20 for falsely claiming to have given birth to a son by the rich and childless P. Sulpicius Quirinius, was no ordinary high-status defendant.¹ A descendant of both Sulla and Pompey, she had been betrothed by Augustus to the young prince Lucius Caesar. Her status increased the enormity of the crime and made it more likely that Quirinius would request a senatorial investigation (even if he would not have done so any­way). In any case, other charges quickly followed, adultery, attempted poisoning, consulting astrologers about the fortunes of the ruling house. Second, the case of testamentary forgery which the Emperor Gaius sent to the Senate was unusual in that one of the witnesses to the allegedly fraudulent will was thè future Emperor Claudius? Suetonius told the story to illustrate Gaius’ contempt for his uncle, and it is likely that the case was referred to the Senate for the purpose of embarrassing Claudius as much as possible in public. This affair is not good evidence for regular senatorial falsum trials. There may have been a few other trials: we possess only senatorial decrees extending the Cornelian law on falsum, some of which may have arisen out of falsum investigations. But not much can be made of evidence so

¹      Tac. Ann. 3. 22fl. Cf. Suet. Tib. 49. 1.

²                                                                                     lang=EN-US>Suet. Div. Cl. 9.

shadowy and indirect.¹ In general, our knowledge of the way falsum in all its various forms was punished before a.d. 61 is insubstantial. I submit that the only significant change in that period was the emergence of the court of the prefect as the main court for falsum, and that this advance was made at the expense not of the Senate but of the quaestio de falsis.

Finally, the Senate conducted a number of judicial investigations involving miscellaneous offences. Individuals were punished for crimes ranging from vis publica and privata, sacrilegium, iniuria and calumnia, to negligence which led to the death of thousands of spectators at gladiatorial games.² The public courts were competent to deal with only some of the above cases, and it is not difficult to understand why these found their way into the Senate. For example, the trial in the Senate in A.D. 23 of Vibius Serenus, governor in Spain, for vis publica, is to be explained on the analogy of the repetundae trials involving governors.³ The trial before the Senate of a prefect of a cavalry troop for vis et rapina is paralleled by that of the procurator Lucilius Capito on a similar charge. A jury-court trial was hardly a possibility in either case, as both defendants were equestrian officials directly responsible to

¹               Coll, 8. 7. 1-2 is in places corrupt, but may refer to decrees of a.d. 16 (cons, of Taurus and Libo), 20 (cons, of Cotta and Messalla), 29 (cons, of two Gemini, sc. C. Fufius and L. Rubellius), and 44 (cons, of Licinius II and Taurus). There may be a confusion between the first and the last of these. The S.C. Libonianum (see Dig, 48. 10 passim) is perhaps identical with the first. Its substance was repeated in an edict of Claudius (Dig. 48.10.14. 2; ibid. 15 praef.), and a similar measure is ascribed to Nero (Suet. Nero 17), along with other enactments, which may have been either S.CC. or Imperial edicts. Imperial edicts on falsum might of course have followed Imperial falsum trials (for one such trial see Suet. Div, Cl. 15. 2). On the other hand, the whole idea that the decrees (or edicts) followed falsum trials is suspect. The S.CC. associated with a.d. 20 and 29 are concerned, and then only secondarily, with the bribery of witnesses, a form of corruption not specially related to falsum trials.

²               For refs, see following notes. In addition, sanctions were invoked by the Senate against various groups whose existence and activities were considered a threat to the political and religious life of the state (e.g. Jews, devotees of Isis, astrologers) and against other groups for acts of disorder and violence (e.g. actors and their supporters, citizens of Italian Pollentia and Pontic Cyzicus). Selected refs, include Tac. Ann. 2. 85; 2. 32, cf. Coll, 15. 2. 1; 1. 77; Suet. Tib, 37. 2-3. In such cases the senatorial decrees issued did not come at the end of formal trials. They were administrative acts, not judicial sentences, promul­gated by the Senate acting in its traditional capacity as an administrative organ of government, rather than in its new-found role as court.

³   Tac. Ann. 4. 13. 2. His province was Hispania Ulterior.

 31 the Emperor. Tiberius’ decision not to punish them himself was a private one, and his choice of the Senate a special compliment to that body.¹ Next, Calpurnius Salvianus was exiled by the Senate, perhaps for sacrilege. He had chosen a (literally) inauspicious moment to lodge a criminal charge against Sextus Marius, a day of the/mae Latinae. Accusers were not uncommonly tried in the Senate in the reign of Tiberius (false accusation, or calumnia, was the most frequent charge), probably because their trials arose directly out of prosecutions or attempted prosecutions (like that of Calpurnius Salvianus) in that court.^{[25] title="">[26]}

Thus, as with homicide and falsum, so with vis publica, vis private sacrilege, and other crimes for which a quaestio was available, the Senate took probably only a handful of the cases which cropped up. The rest must have been left to the proper quaestio, or perhaps to the urban prefect.

The other cognitiones listed above fell outside the official or statutory criminal law. The freedman-profiteer Atilius, who was responsible for the Fidenae disaster of A.D. 27, might in theory have been punished by the urban prefect rather than the Senate.^[27] Similarly, the abuse of a senator by a woman who had been convicted for fraud might have led to a suit for iniuriae by the for­mulary process.^[28] Why did the Senate take these cases?

The Fidenae affair of a.d. 27 was a scandal, and the Senate’s predilection for investigating scandals has been remarked upon already. Yet obviously there are different kinds of scandals. It would be misleading to place in the same category, for example, the collapse of an amphitheatre which allegedly killed 50,000 people and the forgery of a rich old senator’s will. The former was

a scandal of the highest order, whatever the status of the man responsible; the latter was a serious crime but no scandal in itself: it was only the status of some of the accused and of the victim which made the case of a.d. 6i a cause cèlebre—and brought it into the Senate.

This distinction between crimes which are self-evidently scan­dalous or outrageous, and crimes which can be called scandalous solely because of the status of those involved, makes it possi­ble to explain the appearance of Annia Rufilla before the Senate in a.d. 21. The substance of C. Cestius’ complaint was that he could not pass through the forum and into the senate-house with­out encountering the threatening abuse of this woman (whcu thought that she could protect herself from punishment by carry­ing an image of the Emperor). Cestius had little difficulty in convincing his peers that if such conduct was allowed to go un­punished, ‘the laws were annulled and completely overturned’. Rufilla was clapped into gaol. It is safe to assume that a non­senator who had been subjected to like abuse would have had to proceed against his tormentor by the cumbrous processes of the civil law.

The prosecution of the Cretan, Claudius Timarchus, makes an enlightening comparison.¹ Tacitus introduced Timarchus as rep­resentative of a class of provincials who used their wealth to oppress those weaker than themselves. It is not to be imagined that the Senate normally bothered with such men—their petty crimes could be satisfactorily dealt with by the governor. But Timarchus had on more than one occasion uttered a boast to the effect that whether a proconsul was ceremoniously thanked by the Cretan Provincial Assembly depended on his, Timarchus’, attitude—and not, by implication, on the governor’s own acts or reputation. This remark was seen as an insult to the Senate (ad contumeliam senatus), and Timarchus was sent off to face that body.

We may now sum up our findings to this point. First, there is a _;strong presumption that some, senatorial defendants appeared before the public courts or the prefect’s court rather than the ^r Tac. Ann. 15. 20 ff.

 33 Senate for crimes other than maiestas, crimes ordinarily non­political but shading into maiestas in exceptional cases, for repe­tundae, and adultery (and kindred crimes). The argument rests chiefly on Tacitus’ accounts of two trials, the trial of Cn. Calpurnius Piso in a.d. 20, and the falsum trial of a.d. 61. Piso expected a trial before the jury-court which dealt with poisoning, and words of Tiberius imply that this would have been normal. In the forgery case, the accused might have been tried either by the prefect or by the proper jury-court. These cases prove, to my mind, that senatorial jurisdiction was selective, and they make it possible to formulate principles of selection that can be tested in the light of the available evidence.

The next point concerns the status of the defendants who came before the senatorial court. The Senate did not try only senators, but it tried mainly senators. Most of the non-senatorial defendants who appeared in the Senate were charged with maiestas. Yet even maiestas was predominantly a senatorial crime. Moreover, among crimes which might be committed by men of any status, maiestas was apparently unique in that it was punished exclusively (or nearly exclusively) by the Senate. In effect, with respect to all crimes apart from repetundae (in any case virtually a high-status crime, the trial of which was monopolized by the Senate) and maiestas, the Senate practised only a restricted and selective jurisdiction.¹ In the first place, it handled ‘shocking or outrageous crimes of high-placed persons, notably adultery, but other offences as well. In some of these affairs non-senators were involved, but only in minor roles—it was not their participation which gave them the air of scandals. Secondly, some non-senators were condemned and punished by the Senate for their own scandalous crimes. Of these crimes, a small minority were self-evidently scandalous. Of the rest it can be said that it was only the status of the injured party which made them at all remarkable or significant.²

The principles which governed the Senate’s selection of cases were thus more complex than might have been imagined. The

^x Calumnia (and other crimes of accusers) was a special case, as it arose out of attempted prosecutions (normally) of senators. See next note.

²               This category includes indictments of non-senators for offences against senators, among them, calumnia qt false accusation.

Senate did not try only senatorial defendants; it was not a ‘Pairs- gericht’ in the sense in which Bleicken uses the term. Nor, however, did it try only those crimes which were scandalous in themselves and/or dangerous to the state. For some of the crimes punished by the Senate were scandalous and dangerous only by the Senate’s own definition. In its selection of cases for its judge­ment, the Senate showed that it was not immune to considerations of status.

Treatment of defendants

Next we must try to decide to what extent the Senate, in the actual judgement of the cases with which it dealt, showed itself attentive to the narrow senatorial interest. Granted that a majority of the defendants who came before the Senate (for whatever reason) were senators, was it an advantage for senators to be tried by the Senate; and conversely, was a senatorial trial a disadvantage for non-senators ?

There is more than one indication that non-senators were sub­ject to more summary treatment than senators. It is doubtfu^ whether the Senate would have proceeded against a senator as it proceeded against the equestrian Clutorius Priscus, who was tried and immediately executed on a trifling charge that was treated as maiestas.¹ Further, the speed with which Annia Rufilla was dispatched to gaol by order of the consul for molesting C. Cestius, far from convincing us of her guilt, makes us wonder whether she did not have a legitimate grievance against her enemy.

As far as punishments are concerned, no elaborate differential penalty-system can be shown to have operated in this period. However, it seems that at least on occasion low-status defendants were punished more harshly than high-status defendants on the same charges. One suspects that Priscus and Rufilla might have received not only less summary treatment but also less severe penalties if they had been of senatorial rank. Similarly, it was not normal to hurl down the Tarpeian rock astrologers or men convicted of incest. This was a sanction which custom reserved for slave-criminals (or public enemies), but which the Senate

¹       Tac. Ann, 3. 49-51. See p. 40 below.

 ₃₅ decreed for a plebeian citizen and a leading provincial.¹ (In general, there was little to prevent a judge proceeding extra ordinem from invoking any penalty whatsoever against defendants of free birth but humble status. It is likely that other penalties that were in origin slave-penalties were being increasingly em­ployed at this time against humbler defendants. There is, however, little reflection of this development in the evidence relating to the senatorial court.) Finally in the matter of penalties, it is appropriate to cite the account given by Suetonius of the trial of Laetorius in the Senate for adultery.^{[29] [30]} C. Laetorius, a young patrician (adu- lescens patricii generis), pleaded for a mild punishment on the grounds of age and birth (praeter aetatem atque natalem), and because Augustus had been born in a house he at present owned. It is not known whether the plea was successful, and if it was successful, for what reasons.^[31] For us it is enough that Laetorius would not have been able to introduce the argument from his birth in the senatorial court if he had been anything less than a senator. The rhetoricians state that such arguments appealed to judges and juries in general, drawn as they were from the upper stratum of society, and there is no reason to doubt the truth of their testimony.^[32]

Further, not a few senators and senatorial officials who were tried in the Senate, especially on repetundae charges, were either acquitted outright, or condemned and later restored.® In contrast, the acquittal of non-senatorial defendants was something of a rarity.⁶ It seems as if there was in the minds of the judges a heavy presumption of guilt in their cases.

All this leads to the not very remarkable conclusion that there was a difference of attitude among senators to senatorial defendants and non-senatorial defendants which worked in favour of the

former. More noteworthy is the fact that senatorial discrimination in favour of senators was not permitted, to function smoothly and regularly in the Julio-Claudian period. The chief reason for this was the participation of the Emperor in the activities of the sena­torial court. This may now be documented.

A glance at the acquittals and post-condemnation restorations in repetundae cases will reveal that many of the former and most of the latter were the result of Imperial intervention. Admittedly^, direct evidence of such intervention is lacking in the cases of Fonteius Capito, Cestius Proculus, and Eprius Marcellus (who, Tacitus expressly states, was freed unjustly).¹ But Nero was per­sonally responsible for the acquittal of two proconsuls of Africa and a special legate (of praetorian rank) to Cyrene.^{[33] [34]} Moreover, Otho’s potentia won from Nero the return of a consular to his pre­vious status, though not without cost, while Cossutianus Capito regained his seat in the Senate through the good offices of his father-in-law, Nero’s notorious praetorian prefect Tigellinus.^[35]

It is not always apparent which factors decided an Emperor in favour of an individual defendant. Nero seems most often to have been influenced by the appeals of men whom he respected or needed, although he did not always grant concessions gratis.^[36] Naturally senators were more likely to have powerful friends than men of lower ranks. Isolated exceptions, however, are known. The equestrian Vibius Secundus secured a milder penalty than was due for repetundde because his brother Crispus interceded for him.^[37] In general, however, non-senators were not well placed, as is indicated by a story in the Annals relating to the future Em­peror Vespasian.⁶ It was the occasion of the quinquennial games, and Rome was full of men from Italian and provincial cities? Many came because they feared that absentees would be punished. It was an offence for spectators to show any signs of gloom (tristitia). Of those who offended, says Tacitus, the more in-

 37 conspicuous (tenuiores) were dealt with on the spot, while the notable (inlustris) were passed over for the moment. Vespasian got into trouble at the festival because he fell asleep, and was only saved from ruin (pernicies) at the hands of Nero by the inter­vention of men close to the throne.

Nero could also be impressed by exceptionally high rank. Asi­nius Marcellus escaped scot-free in the forgery scandal of A.D. 61 because of the fame of his ancestors (he was great-grandson of Asinius Pollio) and the intervention of Nero.^[38]

A number of men and women of senatorial rank benefited from the interventions of Tiberius, when, for example, penalties were reduced or nullified, or charges waived. His motives for inter­vening were various. On some occasions he was probably in­fluenced by the conspicuous dignitas of the defendant. The suicide of Cn. Calpurnius Piso led Tiberius to express regret at the terrible calamity (however deserved) that had fallen upon a house of such high nobilitas. At the same time he excused the part that M. Piso had played in his father’s civile bellum. Subsequently, when the consul proposed that M. Piso should be exiled for ten years and should be stripped of rank and fortune (with the exception of five million sesterces), Tiberius ruled that he should retain his rank and his share of his father’s property.³ Again, Appuleia Varilla suffered the traditional penalty for adultery rather than the harsher penalty prescribed by the Julian law. That is to say, she was merely escorted by relatives beyond the two-hundredth milestone. Tiberius had previously quashed the treason charges against her. Appuleia Varilla was the niece of Augustus’ sister.³ Similarly, it may have been the illustrious family-background of Aemilia Lepida which induced Tiberius to ask the Senate to drop the maiestas charges against her.⁴ Finally, Tiberius stated that rank itself was sufficient reason for placing C, lunius Silanus on the island of Cythnus rather than Gyaros:

atque ille prudens moderandi, si propria ira non impelleretur, addidit insulam Gyarum immitem et sine cultu hominum esse: darent luniae familiae et viro quondam ordinis eiusdem, ut Cythnum potius con- cederet.¹

Tiberius concluded the same speech by observing that the concession he was granting Silanus had been requested by Tor- quata, Silanus’ spotless sister. Tiberius was susceptible no less than Nero to the pleas of men or women of influence. The acquittal of Cn. Piso’s wife Plancina was sought and obtained by none other than the Augusta.² Again, the pardoning of the equestrian C. Cominius, who was accused of slandering Tiberius, was won by the prayers of his brother, a senator.³

Often Tiberius’ private likes and dislikes were of direct con­sequence. He revived the trial of Vibius Serenus with new charges, based on a personal grudge of eight years’ standing, when it had all but collapsed following the flight of the prosecutor from Rome.⁴ That prosecutor was Serenus’ son of the same name, one of a group of infamous accusers of high rank who attained a position of ‘sacrosanctity’ through their special relationship with the Emperor.⁵ This man seems to have specialized in lodging rash and groundless accusations. His attempt to inculpate two highly respectable senators in his father’s ‘conspiracy’ against the Emperor was a major blunder, for the two men were Tiberius’ close friends. There was a moment of embarrassment, and the charge was dropped.⁶ Indictments against L. Arruntius and M. Aurelius Cotta Maximus Messallinus came to nothing for similar reasons.⁷

¹ ‘He, knowing how to be moderate when he was not carried away by personal resentment, said further that Gyaros was a cruel and uninhabited island, and that, as a favour to the Junian family and to a man once of the same order as themselves, they should allow him to retire instead to Cythnus.’Tac. 3. 69. Previously (3. 68) Tiberius had agreed that the property which Silanus inherited from his mother should not be confiscated.

³               Ibid. 3. 17, cf. 4. 52 (Agrippina’s influence could not save Claudia Pulchra); 6. 40 (Aemilia Lepida was safe from prosecution as long as her father lived).

³  Ibid. 4. 31.

⁴  Ibid. 4. 28 ff. Perhaps Tacitus has exaggerated the extent of Tiberius’

hatred. Would he have blocked punishment ‘more maiorum’ simply ‘quo molliret invidiam’ (and then substituted the more civilized Amorgos for Gyaros or Donusa as a place of exile)?                                                                               ⁵ Ibid. 4. 36.

⁶               The men were Cn. Lentulus and Seius Tubero, the former an old man and the latter unwell, ibid. 4. 29.

⁷               Ibid. 6. 7, cf. Dio 58. 8. 3 (L. Arruntius);Tac. Ann, 6. 5 (Cotta). Note that Plautius Lateranus got off lightly for his part in the affair of Messalina and

Tiberius sometimes quashed charges of maiestas for a quite different motive.· Given the confused state of the maiestas law, it was not always easy to decide whether an alleged offence came within the scope of the law. It was in the Senate that the process of interpreting the law took place, under Tiberius’ direction. His attitude, as it happens, was liberal: he made an effort to keep the definition of maiestas within bounds. Several charges against equestrians were dropped because Tiberius considered that the maiestas law had not been broken.¹

This last explanation for the waiving of indictments by the Emperor holds in only a few cases. When treason charges came to nothing, it was normally because the Emperor decided, out of per­sonal or political considerations, that it should be so; and it was regularly the rank or connections of the defendant concerned which saved them.²

Thus the senatorial court was not always free to favour whom it chose. The clue to its behaviour lay in the attitude of the Emperor. Nero does not appear to have been a frequent attender at senatorial investigations, but he showed considerable interest in their outcome. Claudius’ conduct and policy are less well- documented; but he earned a reputation both for his keen ap­petite for the law and for the extent to which he was subject to the influence of those around him. Until his retirement to Capri, Tiberius not only regularly sat in on senatorial investigations, but also took an active part in them.³ The result was that even if the Senate was allowed to arrive at a free decision—and this may not

Silius because of the services rendered Claudius by his famous uncle, Aulus Plautius (who the year before, a.d. 47, had celebrated an ovatio for his victories in the British campaign of a.d. 43). Ibid. 11. 36. Seven years later he recovered his place in the Senate (ibid. 13. 11).

¹  Ibid. 1. 73; 3· 7o.

²               But see ibid. 11. 36 (Suillius Caesoninus) and 13. 22 (Paris). Political con­siderations were perhaps relevant in the postponement by Tiberius (probably indefinite) of the trial of C. Annius Pollio and L. Annius Vinicianus (ibid. 6. 9), and in the passing over (for a time) by Nero of Rubellius Plautus (13. 22). There were some genuine acquittals: ibid. 6. 9 (C. Calvisius Sabinus, C. Appius lunius Silanus); 6. 8-9 (Terentius); perhaps too 3. 37 (Caecilianus); 4. 13 (Sacerdos and Gracchus); 4. 31 (the sister of Firmus); etc.

³               Tiberius* interest in the judicial investigations of the Senate did not die during the time of his sojourn in Capri. In addition, the Senate had to put up with first Sejanus and later Macro.

have been a common occurrence—that decision was frequently modified by the Emperor. The trial of Clutorius Priscus was an' exception among treason trials because the Senate made a decision and carried it out in Tiberius’ absence and without his knowledge. Tiberius showed his disapproval by fixing for the future a ten-day gap between the passing of sentence and the execution of sen­tence. Thereafter there could be no doubt that the decisive factor in a trial in the Senate was the operation or inoperation of Imperial· dementia. The Senate had no power of reconsideration: ‘sed non senatui libertas ad paenitendum erat...’*

Such interference in the working of the senatorial court might not have mattered, if Emperors could have been relied upon to pursue a course consistently favourable to senators. But Tiberius, for example, was as capable of inclemency as clemency;⁸ and the concern for truth which he displayed in the early days of his reign was by no means a virtue in the eyes of Tacitus, for whom it represented a threat to freedom—the freedom of potentes to influence the course of trials? As for Nero, an Emperor who re­quired to be consulted by the Senate before it made decisions was conceding that body at best a semblance of freedom.⁴ Tacitus was constantly aware of the contrast between the attitudes and behaviour of Nerva and Trajan and those of their predecessors. In the matter of senatorial trials, Trajan seems to have attended them only when required to as consul, and to have shown little interest in the proceedings. His Senate, left to its own devices, was able systematically to favour members of the senatorial order.⁵

Conclusion

In the Julio-Claudian period, conditions were far from ideal for the promotion of the interests of the senatorial order. In the first place, a large part of the Senate’s judicial time was given to

¹               Tac. Ann. 3. 49-51. Gaius allowed his Senate little room to manoeuvre. See Dio 59. 18. 2.

²               See, e.g., Tac. Ann. 4. 42; cf. 3. 23, where Drusus rejects a milder penalty suggested by some senators.

^{3New Roman">}  Ibid. 1. 75.

⁴               Nero’s behaviour in the case of Antistius Sosianus (ibid. 14. 48 ff.) is to be compared with Tiberius’ in the case of Clutorius Priscus (ibid. 3. 49-51).

⁵   See pp· 50 ff.

the trial of political crimes and scandalous crimes (insignia scelera) committed by men of all classes. It was only when the Emperors built up their own jurisdiction that the senatorial court lost its monopoly over cases of this sort, and was more free to turn its attention to the trial of senators. Secondly, again until the Em­peror’s tribunal operated on a regular basis, the senatorial court was unable to function without Imperial ipterference.

On the other hand, non-senatorial defendants in the senatorial court were a clear minority. Their cases were carefully selected. The crimes for which they were tried were almost without ex­ception either scandalous in themselves or scandalous in the eyes of senators. They could thus expect no mercy, and to my know­ledge they received virtually none. The Senate would certainly give them less consideration than high-status defendants. And when Imperial generosity (beneficiuni) worked to cancel or mitigate a sentence, or to reject an indictment, the gainer was normally a member of the senatorial order. In most of those cases, the favour .was granted because of the personal influence or social prestige of the defendant or his supporters.

Is it legitimate to conclude that senatorial defendants as a whole saw any real advantage to be gained by trial before their peers? This question cannot be answered satisfactorily while we can only draw upon evidence for the working of the senatorial court. It is of course impossible to make a comparison between the way defendants of status were treated in the Senate and the way they were treated in jury-courts or in the court of the prefect. To judge from the evidence at our disposal, senatorial defendants as a whole did not expect more lenient treatment than the law prescribed. Much seems to have depended on the nature of the offence and the status of the injured party. The outcome of maiestas trials (and t^iasi-maiestas trials) was often quite unpredictable, because in these cases the attitude of the Emperor was vital. One senator might be benefited, while another might be hastened to his destruction. Only firm friends of the Emperor could be sure of their survival. Adultery was not a crime against the life or dignity of the Emperor, but it was thought to threaten the moral fabric of society. This explains the Emperor’s interest in the crime, and, in Tiberius’ case, his unwillingness to grant concessions to any defendant, apart from the niece of Augustus’ sister. In contrast, acts of mercy towards those accused of repetundae were frequent. Here, as with maiestas, ‘chance factors’ counted, especially the possession of powerful friends. But beneficium could be more readily distributed to offenders where the victims of crime were merely provincials. On the other hand, if the Senate agreed to investigate a crime of a man or woman of senatorial status against one of like status, the offence might well be considered outrageous and deserving of strict punishment. In practice in such cases dementia was shown only to those of the most illustrious family.

Thus, because the Senate was more of an ‘Imperial court’l (‘Kaisergericht’) than a ‘senatorial court’ (‘Senatsgericht’),¹ and! because Imperial beneficium was not offered regularly to senatorial defendants on the grounds of their senatorial rank, a trial before! the Senate is likely to have been considered by senators a doubtful privilege in this period. With the possible exception of provincial governors on repetundae charges, senators would have viewed their coming trial in the Senate with as much apprehension as hope.

^x Bleicken, op, cit., 61.