Trials Before the Emperor and the Senate

It is a moot point how far one should seek to find a strict legal justification for the justice administered by the emperor himself. The element most easily grounded is his power to hear appeals.

Augustus’ exercise of primary jurisdiction in the city was, according to Suetonius,⁷⁵ frequent. It can only have occurred in the period when he was regularly at Rome exercising consular or proconsular power - that is, at the time of his criminal legislation in 18—17 BC and then again after his return from Gaul in 13 BC. His trials of persons from the empire outside Italy, such as Aulus Stlaccius Maximus from Cyrene in 7—6 BC,⁷⁶ were justified by his proconsulare imperium maius, the power that allowed him to override provincial governors throughout the Roman empire. On the other hand, jurisdiction in the city had not been a matter for Republican consuls in the middle and late Republic. No doubt an antiquarian justi­fication could have been found for it, if necessary, but by this time little disguise remained for the dynastic monarchy that Augustus was founding, for which auctoritas⁷⁷ was the euphemistic term employed by Augustus himself and generally used in modern scholarship. In any case, the trials could have been interpreted as part of Augustus’ supervision of laws and morals. His practice was not imitated by Tiberius, who was criticized by Tacitus for merely sitting as an assistant to praetors on the wing of their tribunals;⁷⁸ Claudius did follow Augustus’ precedent and consequently was lampooned and denounced after his death for his litigiousness and the holding of trials in his own houses.⁷⁹ Nero made promises to avoid Claudius’ practice on his accession, but these eventually went for nothing when he was threatened by the Pisonian conspiracy, ⁰face=Arial> and we do not find objections to the principle of imperial jurisdiction subsequently. In Tacitus’ portrayal of oratory under Vespasian, however, the cases pleaded before the emperor are only those concerning the emperor’s freedmen and procurators.⁸¹

The senate was always dependent on the magistrate who convened it for its agenda and the translation of its decrees into action.

courts.

Under the Republic the senate was not a court. It did, it is true, investigate the evidence against the leading Catilinarian conspirators at Rome in 63 BC, apparently extracting confessions from them.⁸³ In the subsequent debate, however, that led to their being sentenced to death, the accused were neither present themselves and able to speak nor even represented, which could hardly be described as judicial procedure even by the standards of the time. Trials in the senate for offences that could be construed as damaging Rome’s maiestas seem on our evidence first to have occurred late in Augustus’ reign. After Ovid had been ‘relegated’ - that is, banished through consular authority - in AD 8, he complained that he had not been condemned either by a criminal tribunal or a decree of the senate.⁸⁴ At this time Augustus probably used the senate to condemn his granddaughter, Ovid’s alleged lover, as he had previously (2 BC) his daughter Julia.⁸⁵ However, the first certain example of this sort of trial is that of a man whose primary offence was against the maiestas of the senate itself, the orator and pamphleteer Cassius Severus, who had defamed distinguished men and women in his writings.⁸⁶ Furthermore, about AD 11-12 a former proconsul of Asia, Volesus Messala, accused under the law about recovery (de repetundis), was brought before the senate on account of the brutality that had accompanied his extortion, a matter about which the emperor had written a commentary and submitted it to the senate: this in effect redefined the repetundae charge as maiestas.⁸⁷

Even before this Augustus had devised a new swift form of process for repetundae cases where there was no capital charge, which in effect resembled a civil process for compensation before recuperatores (the sort of process provided in 171 BC). We possess a full text of this in Greek - an account of legal procedure second only in its detail to that provided by the lex repetundarum — because it was incorporated by the emperor in one of his Cyrene edicts.⁸ The measure was expressed in a decree of the senate proposed by the consuls of 4 BC, Calvisius Sabinus and Passienus Rufus, on the basis of a memorandum drawn up in the emperor’s council (consilium).

The law of maiestas, on the most plausible view,⁹⁰ was that passed by Julius Caesar as dictator, but both the crime itself and the penalty became subject to development and re-interpretation under the emperors. It is now abundantly clear from the text of the decree of AD 20 relating to the condemnation of Gnaeus Piso the previous year that maiestas now included the majesty of the imperial household.⁹¹ Moreover, the senate imposed penalties exceeding those prescribed by the lex Iulia.9² In Pliny’s time, it was argued in the senate both that it was limited by the law and, alternatively, that it was free to improvise penalties to suit the magnitude of crimes or mitigate the severity of the law.⁹³ As for procedure in the senate, this owed something to the example provided by the criminal tribunal (quaestio perpetua), but was changed by the very nature of the senate itself, a massive jury, whose members all possessed the right to deliver an opinion when asked for their verdict, including making pro­posals about the penalty. Other features in which early senatorial trials differed from the quaestio perpetua are the prosecution of men while they still held office, the presence of magistrates among the accusers, and, above all, the frequent participation of the emperor himself.⁹⁴

The senate decree about the trial of Gnaeus Piso for maiestas refers successively to the speeches by Piso’s accusers and by the man himself, the reading of letters and the memoranda Germanicus sent to Piso, and the hearing of witnesses from every rank.⁹⁵ If this is a temporal sequence, then procedure in this case came close in outline to that of a regular criminal tribunal.

During the century that separated Ovid’s exile from Pliny’s advo­cacy in the senate, a procedure devised originally for what were thought especially heinous offences against the regime seems to have been extended to regular crimes covered by the laws of the criminal tribunals, provided that the chief defendants were senators or at least important members of the equestrian order. Senatorial procedure had to be adapted to conduct trials, but the basic principle of complete consultation of the membership present could not be avoided. Senators kept one eye on the Republican and Augustan statutes but, as befitted a body which since Augustus had itself the power to alter the criminal law, asserted, when judging cases, the senate’s right to decide what in its view was just, even if up to that point it had not been legal practice. Indeed, a number of the innovative senatus consulta arose from the trial of particular cases: for example, a decree making provincial governors responsible for the con­duct of their wives arose from the trial of Gaius Silius in AD 24."