I Introduction
The wave of treason trials set in motion under the lex Iulia maiestatis is among the ugliest features of the reign of Tiberius.Footnote 1 Following a precedent established in the final years of the emperor Augustus, ambitious prosecutors (delatores) drew an ever-wider range of offences into the category of the diminution of the maiestas of the Roman people.Footnote 2 As the emperor and his family became identified with the people as a whole, evidence of treasonous behaviour was found in drunken jokes, horoscopes cast, statues put on sale or placed in insufficiently elevated positions.Footnote 3 Where before those charged with maiestas minuta had always been men of rank and were tried in the permanent standing court (quaestio perpetua) specially tasked with investigation of such offences, now the dragnet took in defendants high and low and the senate emerged as the primary venue for hearing such cases.Footnote 4
Much that I have outlined so far will be familiar to those who have studied the history of the early imperial period. Perhaps less so will be the revelation that in the same years the standing court and the senate were not the only places in which trials for maiestas were being held at Rome. The same was also true of the courtrooms of the declamatory schools. Here teachers, pupils and visiting adults would practise the type of exercise known as the controuersia, in which a briefly stated scenario or ‘theme’ complicated the application of an equally concise statute or statutes. One such statute reads ‘Let there be an action for harm to maiestas’ (maiestatis laesae sit actio). In Controuersiae 9.2 Seneca the Elder illustrates how different performers across the age of Augustus and Tiberius applied this statute to an imaginary trial inspired by a scandal dating back what was for them between 150 and over 200 years and which had in its own time been sanctioned in a quite different manner. In 192 B.C., in the course of a drunken dinner, the consul L. Quinctius Flamininus, who was campaigning in Gaul, authorised an execution for the sole purpose of entertaining his prostitute lover.Footnote 5 Eight years later, the censors M. Porcius Cato and L. Valerius Flaccus responded to this misdeed by expelling Flamininus from the senate. The primary source for this episode is the historian Livy, who draws his version from the speech of Cato defending his decision, and who criticises for its inaccuracies the account of the annalistic historian Valerius Antias, who changes the status of the victim, the gender of the prostitute and the weapon employed in the execution.Footnote 6 Livy’s scorn notwithstanding, this latter version had no little influence in antiquity and leaves its mark on the theme addressed by the speakers in Controuersiae 9.2.Footnote 7
This paper sets out to explore the activities of this other courtroom and to bring it into relation with those trials for maiestas simultaneously being held in the world outside. Though Controuersiae 9.2 has largely been neglected by historians of the crimen maiestatis, it has much to bring to analysis of the problem of maiestas in the period. Of primary importance is the way that specific contributions engage with what a trial for maiestas should properly be about and to whom the law should be applied. In this way, Seneca casts important light on how people were thinking about maiestas as a legal category throughout the period of its most persistent and problematic application. Yet, as part of a work composed in the dying days of the Tiberian regime and published in the first years of Caligula, Controuersiae 9.2 permits readers to relate what it records of the different speakers involved in the trial of Flamininus to what they know of the same individuals’ activities in those other courtrooms where the cases heard were all too real. For many of the individuals whose words Seneca reproduces themselves launched actual prosecutions for maiestas, found themselves amongst the indicted and the condemned, or flirted with disaster through misdemeanours that could easily have resulted in their standing trial for the same offence. Some of the evidence for this Seneca himself presents elsewhere in the Controuersiae as he develops a fundamental concern of the work as a whole: the changing culture of forensic and political speech during the author’s long lifetime. Other evidence is to be found in writers such as Tacitus, Suetonius and Dio. Seneca may not himself deploy it here, but his very reticence makes it all the more resonant for those who know.
My account begins at the turn of the second and first centuries b.c., when the first maiestas laws were passed and the rhetorical schools began to generate pseudo-historical scenarios that challenged pupils to think about maiestas as a legal category (Sections II–III).Footnote 8 The simultaneity of these developments matters and it must be the case that at least some participants in Republican maiestas trials had first honed their arguments in the imagined judicial space of the schools. This is demonstrably the case in the triumviral and early imperial period covered by the Controuersiae. The later stages of my analysis therefore pay close attention both to the legal arguments made in Controuersiae 9.2 and to those who made them; here a matter of particular importance is the developing character of the schools as they began to admit adult performers, often men of power and public standing (Sections IV–VII). In calling fresh attention to a neglected exercise, this article invites scholars of declamation to think historically and historians to pay closer attention to what declamation can offer.
II Maiestas and the maiestas laws
In order to grasp the conceptual shift underpinning the trials at issue in this paper, it is necessary first to offer some introduction to the legal category of maiestas and to document prior legislation penalising its diminution. As will become clear, in referring to ‘treason trials’, the introduction to this paper adopts no more than a convenient shorthand. Maiestas itself is a more complex legal category and one that simultaneously begs and resists definition.
That maiestas begs definition is evident from one persistent tendency among Republican rhetorical writers. Setting out concepts first theorised by the second-century Greek rhetorician Hermagoras, they use the term constitutio to refer to the contest between speakers to determine what is at the heart of a case.Footnote 9 In the case of the constitutio definitiua, they describe what arises when the orator seeks to convince the jury that their verdict must turn on what he presents as the proper understanding of a given term, and, with remarkable consistency they illustrate it by reference to prosecutions under the maiestas laws.Footnote 10 This was also a matter of oratorical practice.Footnote 11
That maiestas simultaneously resists precise definition is the common complaint of almost every modern scholar of the Republican and imperial maiestas laws.Footnote 12 Though the different leges maiestatis appear to have identified specific acts that should be brought under the heading of maiestas minuta, they simultaneously failed to offer a fixed definition of what the central concept should be taken both to mean and, by extension, not to mean. Roman draftsmen typically aimed at the most comprehensive possible statement of to whom and to what a given law was to be applied;Footnote 13 but, in the case of the maiestas laws, this was very different from defining what maiestas itself was. Where some illumination can be found, as so often elsewhere, is in the accounts of the term found in Roman associative etymologies. These consistently connect the term with notions of size; some refer simply to the state of being ‘great’ (magnus) while others emphasise the comparative adjective ‘greater’ (maior).Footnote 14 The notion that maiestas is a state of superiority underpins the accounts given by Cicero and the Neronian jurist Proculus of the clause found in treaties obliging the people first of Gades, then of Aetolia, benevolently to preserve the maiestas of the Roman people,Footnote 15 and it is central to the most convincing reconstructions of the concept in the Republican period.Footnote 16 Maiestas, in other words, has a strongly relational aspect and penalises those who fail to defer to that which is greater than them and thereby diminish its essence.
All haziness of definition notwithstanding, maiestas began to be applied within the criminal law in the last century of the Roman Republic, and various statutes sought to penalise the conduct of those Roman citizens whose actions were held specifically to have diminished the maiestas of the Roman people. The first of these was the lex Appuleia maiestatis of 103 or perhaps 100 b.c.Footnote 17 There followed the lex Varia of 91–90 b.c., the lex Cornelia maiestatis of 81 b.c. and finally the lex Iulia maiestatis or leges Iuliae maiestatis, which scholars variously date to the reigns of Julius Caesar and of Augustus.Footnote 18 Though reference to the maiestas populi Romani appears to be a constant feature of all these laws, there is good evidence to suggest that understandings of the term could vary significantly.Footnote 19 The most plausible interpretations of the lex Appuleia indicate that its author, the radical tribune L. Appuleius Saturninus, sought to defend the rights of the Roman people, as opposed to the senate, to pass legislation in the comitia.Footnote 20 By contrast, the lex Varia and the lex Cornelia understood the populus Romanus as referring to the state as a whole and penalised those whose actions either encouraged the rebellion of Rome’s former allies in the Social War of 91–88 b.c. (the lex Varia),Footnote 21 or who abused the imperium vested in them by the Roman people by such actions as engaging in campaigns outside the borders of their appointed province without authorisation from the senate or failing to hand over command to their successor at the termination of their imperium (the lex Cornelia).Footnote 22 There is no consensus whether each new maiestas law restricted itself to a specific category of diminution of the maiestas of the Roman people and left all previous legislation active or instead consolidated the applications of the law and superseded all prior statutes.Footnote 23 In the case of the lex Varia, the substantive innovation was the specific targeting of those who incited the allies to rebel. If, however, it incorporated the protections previously offered by the lex Appuleia or simply left them unrepealed, Varius will have been liable for the violence that attended its passing and thus exposed to the conviction ‘under his own law’ that he subsequently endured.Footnote 24 Having used his constitutional reforms substantially to neuter the powers of the tribunate, Sulla may perhaps have been unconcerned actually to repeal the lex Appuleia, but it is just as likely that the lex Cornelia maiestatis replaced all prior maiestas legislation, consolidating much and adding new provisions on provincial government.Footnote 25 It is not known which piece of legislation first established a standing court (quaestio perpetua) to try maiestas cases;Footnote 26 but there can be no doubt that Sulla acted to install an entirely senatorial jury.Footnote 27 That the lex Iulia maiestatis carried over provisions from the lex Cornelia is indicated by the amount of material, particularly on the proper governance of provinces and employment of military command, cited by the jurists writing at Digest 48.4 under the heading of the lex Iulia maiestatis but which Republican sources indicate as having been distinctive features of the lex Cornelia.Footnote 28 The fact that the lex Iulia is the sole maiestas law mentioned anywhere in the Digest is strong evidence for its broad scope and de facto if not de iure supersession of all that had come before.Footnote 29
The multitude of separate statutes and yet signal dearth of detailed information about their provisions make the Republican and early imperial maiestas laws particularly challenging to study. The pioneering work of Richard Bauman addresses this problem through meticulous analysis of each of the cases tried under them and aims to identify the range of offences that each law sought to target.Footnote 30 It is beyond the scope of this article to engage in detail with Bauman’s account of these trials and we must look to the forthcoming monograph of Lily van Diepen for such a reassessment. The Appendix to this article does, however, summarise the available evidence for those who stood trial under the Republican maiestas laws and there will be reason to revert to this later on.
III Trying maiestas in the declamation schools
As the maiestas laws and the cases tried under them proliferated in the world outside, the schools of rhetoric were developing imaginary scenarios to which they could apply their own statutes. In doing so, they typically recast events known from the historical record and did so in such a way as to maximise their capacity to generate arguments for both sides of the case.
I shall begin with the trial of Flamininus because this is central to my argument as a whole, even if it is not the earliest instance of the phenomenon. As noted earlier, the censors of 184 b.c. took action taken against Flamininus and one of them, M. Porcius Cato, published a speech justifying his expulsion from the senate. Bauman speculates that the censors intervened only after Flamininus had been convicted on a charge of maiestas in the comitia tributa, but there is no evidence to support this view.Footnote 31 As will be demonstrated below, the scandalous events of 192 b.c., particularly as narrated by Valerius Antias, are singularly well suited to declaimers experimenting with their own version of the maiestas laws. That, however, in no way demonstrates that they were originally tried under any such statute.
What Controuersiae 9.2 does with history corresponds to the established practice of the rhetorical schools of the early first century b.c. Consider the case of Cicero, De Inventione 2.52–56 and the trial for maiestas of the father of C. Flaminius, tribune of the plebs for 232 b.c. The father’s alleged offence is that he intervened to draw his son away from the temple where the latter was addressing the people and gathering support for his proposed agrarian law.Footnote 32 Bauman and others are inclined to regard this as authentic case law, but various considerations indicate that it is a fiction.Footnote 33 It is a matter of record that the son as tribune overcame senatorial opposition to pass legislation redistributing land in Picenum taken from the defeated Gauls.Footnote 34 It is, however, only in the De inuentione and in the undiscriminating and derivative Valerius Maximus 5.4.5 that any mention is made of the intervention of the father. That the episode is invented is strongly indicated by the fact that the law was passed. What indicates that this is a specifically declamatory fiction is the type of dispute that it serves to generate.Footnote 35 For first it sets the pupils in the schools the task of outlining arguments for either side in a clash between two forms of potestas: the tribunicia potestas of the son and the patria potestas of the father.Footnote 36 Second, the fact that the father holds no public office and the son is a tribune forms the basis for argument over whether it is possible for a priuatus to commit the offence of maiestas minuta.Footnote 37 These are exactly the types of argument that declamation relishes. At the most, Cicero is describing claims that could be raised should any such clash occur in reality. He goes on to state that the first task of counsel for either side is to offer a definition of the diminution of maiestas that is ‘brief and clear and in accord with what people think’ (breuis et aperta et ex opinione hominum descriptio).Footnote 38 That suggested for the prosecution puts all the emphasis on detraction from any part of the standing, grandeur or authority either of the people as a whole or of those to whom the people have given authority (maiestatem minuere est de dignitate aut amplitudine aut potestate populi aut eorum quibus populus potestatem dedit aliquid derogare).Footnote 39 It makes no reference to the claims of patria potestas because to do so would only acknowledge a rival source of authority in the given example. Counsel for the defence is instead advised to essay the following definition: ‘To diminish maiestas is to conduct some element of public business when you do not possess the authority to do so’ (maiestatem minuere est aliquid de re publica, cum potestatem non habeas, administrare).Footnote 40 The point here is that the father would indeed merit conviction were he seeking to do state business without due authority, but that in fact he is doing purely family business and on the basis of patria potestas. The proposed definition overlaps to some degree with the terms of the lex Iulia maiestatis as cited by Marcianus at Digest 48.4.3.pr. (quiue priuatus pro potestate magistratuue quid sciens dolo malo gesserit), but not even the imagined prosecutor of the father of Flaminius could suggest that he had attempted to pass himself off as one holding public office. The only power that he claims for himself is that of the father.
The final example of what appears to be a fictional maiestas trial concerns Claudia, sister of P. Claudius Pulcher (cos. 249), who found her return from the games delayed by the surrounding crowds; enraged by this situation, she prayed for her brother to return to life and lose another fleet, so that the population of the city might be diminished. Suetonius reports that, for this intemperate remark, she was tried for maiestas, an event that instituted a new custom (nouo more iudicium maiestatis subiit).Footnote 41 Elsewhere the matter is rather different. In the De iudiciis publicis, which formed Book 9 of his Coniectanea, the Augustan and Tiberian jurist C. Ateius Capito discusses this episode at length. He records that the plebeian aediles imposed on Claudia a fine of 25,000 sesterces, but makes no mention of any trial for maiestas.Footnote 42 The rather briefer accounts offered by Livy and Valerius Maximus likewise record the imposition of a fine, but neither speaks of maiestas.Footnote 43 It would appear that Suetonius or his source has misread as an authentic historical record a declamatory exercise that employs the same statute as is used in Controuersiae 9.2 and thereby challenges pupils to address limit cases such as whether a woman can be put on trial for maiestas laesa or whether anyone at all can be tried simply on the basis of what they have said.Footnote 44
What is at issue here is the persistent tendency of declamation to make out of historical tradition fictions that suit its particular ends as a form; less than discriminating ancient writers subsequently mistake these fictions for an authentic record and they find their way into more serious genres. Over a century ago, Leuze demonstrated this with regard to Controuersiae 4.2. Here the law states that a priest must be entire (sacerdos integer sit); when the pious L. Caecilius Metellus rescues the Palladium from the burning temple of Vesta and loses his sight, a contest arises over whether or not the law should now bar him from the priesthood. As Leuze demonstrates, earlier sources do indeed record that Metellus rescued the Palladium from the burning temple and date this to 241 b.c.; it is, however, only declamation that insists on his becoming blind and thus falling foul of any law requiring bodily integrity in a priest.Footnote 45 Likewise, Matthew Roller has argued convincingly that reproduction in later historians of elements of the theme of Senecan declamations is proof not of the authenticity of the data Seneca deploys, but rather of the capacity of declamatory fictions to be mistaken for fact.Footnote 46 Roller takes as a case in point Controuersiae 7.2, which is a trial de moribus of one C. Popillius Laenas, whom Cicero once successfully defended on a charge of parricide only for him later to be sent by Antony to kill the orator in the course of the proscriptions. Roller suggests that the patterning is just too pointed to be true; references in later historians to Popillius as Cicero’s client-turned-killer betray an over-trusting acceptance as fact of what has been fashioned to make a properly paradoxical theme and should be treated with considerable scepticism.Footnote 47
The worst thing that a scholar can do with those declamatory exercises that turn on events of history is to put them to the service of an unnuanced positivism. In particular, it does not help to mine the text of Controuersiae 9.2 in search of data with which to reconstruct the history of actual Roman legislation and case law, while neglecting to consider the cultural practice of which the exercise forms a part and what impact this may have on the evidence it appears to provide.Footnote 48 The end result is to invest the exercise with evidentiary weight that it is too frail to bear. As empirical evidence for the history of the early second century, Controuersiae 9.2 is very bad indeed, but that is no reason to drop it outright. For as a contribution to the cultural and legal history of the early imperial period, it is dynamite.
IV Maiestas and the age of Seneca
It is not possible to state precisely when the fiction of Flamininus’ trial for maiestas was created, but one can trace the spectrum of years across which the various iterations of its performance recorded in Controuersiae 9.2 were held. Seneca himself was an enthusiastic visitor to the declamation schools from the early 30s b.c. onwards and was still attending in the reign of Tiberius. That he has witnessed a number of separate performances of the theme adopted in Controuersiae 9.2 at distinctly different moments in the age of Augustus and Tiberius is evident from the cast of speakers whom he cites: those who can securely be dated to the early Augustan period include Arellius Fuscus, Porcius Latro, Rubellius Blandus, Pompeius Silo and Buteo;Footnote 49 among those active in Augustus’ final years and under Tiberius are Musa, Cassius Severus, Vibius Rufus, Votienus Montanus and Romanius Hispo.Footnote 50
A declamatory maiestas trial will have resonated differently at different points in the period, but real-world maiestas cases are recorded from the first decade of the reign of Augustus through to the final years of Tiberius, and there can be no doubt that the concept was in the air at all times. As with the Republican period, it is well beyond the scope of this article to engage in proper detail with each and every one of these.Footnote 51 I choose instead to address two cases that, in their concern with misuse of imperium in provinces and on campaign, overlap significantly with the issues brought to the fore in Controuersiae 9.2. Though the offences targeted by both are recognised by the Republican maiestas laws as early as the lex Cornelia maiestatis and are a deal more substantive than those that made the Tiberian trials notorious, both also have significant constitutional implications and illustrate the problematic evolution of the concept of maiestas populi Romani.
The constitutional settlement of 28–27 b.c. purported to restore the old political order while in fact it ratified its transformation.Footnote 52 Among its key provisions was the division of the provinces of the Roman Empire into those that were to be governed by magistrates officially appointed by the senate and those that Augustus himself would administer through prefects of his own choosing.Footnote 53 The tensions inherent in this arrangement were soon exposed when the governor of the senatorial province of Macedonia, M. Primus, made war against the Thracian people, the Odrysae.Footnote 54 In 23 b.c., he stood trial in Rome on what is generally agreed to have been a charge of maiestas, because the campaign at issue had been undertaken without due authorisation.Footnote 55 The venue was the standing court (quaestio perpetua).Footnote 56 When Primus stated at different points in his own defence that he had acted at the instigation either of Augustus or of Marcellus, he implicitly accused the princeps and his heir of failure to respect the terms of the 27 b.c. settlement.Footnote 57 When Augustus then presented himself in court entirely on his own initiative, counsel for the defence, whom Dio names Licinius Murena, bluntly asked him what he was doing there and who had summoned him.Footnote 58 Augustus replied that it was the public interest (τὸ δημόσιον). Though Primus was found guilty, some members of the jury voted to acquit. The crucial factor here is what the case for the defence adopted by Primus apparently exposed: that Augustus had little de facto intention to confine his activities to the provinces formally allotted to him and was happy to undermine the authority of the senate that the settlement of 27 had purported to restore. The provisions of the lex Cornelia maiestatis regulating the activities of provincial governors, whether under that law itself or as incorporated into the lex Iulia maiestatis, furnished the basis for the prosecution of M. Primus, but the defendant’s claim, that he had not awaited authorisation from the senate because he had been urged to launch a campaign by members of the imperial family, exposed a relation of power very different from that which Sulla had sought to sustain. When Augustus stated that he had come to court in defence of the interests of the people, some will have found his employment of that term distinctly disconcerting.
Forty-two years later, another provincial governor stood trial under the maiestas laws, though in large part only posthumously and now before the senate.Footnote 59 In the case of Gnaeus Calpurnius Piso, many of the substantive offences that he was alleged to have committed as governor of Syria could as easily have been tried under the lex Cornelia as under the lex Iulia maiestatis.Footnote 60 When at SCPP l. 33 he is stated to have neglected the law of the people, what is at issue is the law passed by the people granting Germanicus greater power of command (imperium maius), in whichever province he entered, than even the appointed proconsul, and second only to that of Tiberius himself.Footnote 61 That this is placed second syntactically to his neglect of the maiestas of the imperial house is not so much evidence that the maiestas domus Augustae enjoyed recognition under the lex Iulia maiestatis;Footnote 62 rather this is part of the effort of the senate to find language giving institutional recognition to what at the time remained a state of exception.Footnote 63 Likewise, the return of Piso to Syria after the death of Germanicus and his attempt to wrest control from the new governor, Cn. Sentius Saturninus, was apt to be presented as a violation of provisions in the lex Iulia maiestatis penalising those who failed to hand over authority to a successor at the end of their legal term of office and that surely would also have been fully at home in the lex Cornelia.Footnote 64 Had he but been present, Sulla could have had many reasons to regard the trial of Piso as a thoroughly proper process. Even the replacement of his standing court with trial by the senate would at least have guaranteed that those he regarded as the right judges were still in charge. Only when the senate chose to insert reference to the neglect of the maiestas domus Augustae might he have had reason to question proceedings … or indeed to reflect that the one thing he had been unable to abolish was his own example.Footnote 65
V Trying Flamininus
The evidence of the trials of M. Primus and Cn. Calpurnius Piso offers an important point of comparison for the trial of Flamininus staged in Controuersiae 9.2. This works on two levels. First, the declamatory case shares with its real-world analogues a preoccupation with categories of offence already codified under Republican statute (the lex Cornelia) and those speaking to it underline how far the scandalous conduct of Flamininus calls out for punishment on these very grounds. Second, however, just as analysis of both of the historical trials reveals the cracks that open up when the concepts of maiestas populi Romani and maiestas domus Augustae are made to overlap with each other, so close reading of Controuersiae 9.2 exposes certain speakers’ awareness of how the legal category of maiestas was evolving in the final years of Augustus and under Tiberius and of the discomfort that this could provoke. The next section of this study therefore engages with the issues that the declaimers identify as central to the case and considers how retreat into the world of 184 b.c. restores a simpler world free from those changes that the Augustan and Tiberian trials have enforced.
Seneca typically divides each exercise in his Controuersiae into three parts: the sententiae, which represent the most pointed and epigrammatic statements of key aspects of the case; the diuisio, in which different declaimers identify the fundamental issues concerning the application of the statute to the theme; and the colores, in which speakers seek to strengthen their case through narrative twists on the basic data supplied in the theme. A good declaimer such as Porcius Latro will begin his preparation by methodical reflection on which key issues emerge from the statute and the theme; he will then build his argument around those issues that most favour the side that he represents.Footnote 66 Seneca presents the citation of sententiae before anything else as his way of pandering to the tastes of his three sons, to whom the work is addressed, but he knows that what truly comes first is the diuisio and that all else derives from it.Footnote 67 Any analysis of how the declaimers use this exercise in order to think about maiestas as a legal category must therefore also begin in the same place. In the case of Controuersiae 9.2, Seneca reports the contributions of Votienus Montanus (§§13–16) and Pompeius Silo (§17). Though the latter makes points that are interesting in themselves, those of real substance and pertinence for this argument come from Montanus and it is on these that I shall concentrate.Footnote 68
Montanus opens the diuisio by asking whether every crime committed by a proconsul in the course of his office should be tried as a violation of maiestas. If not, the defendant may confess the crime but deny that he is being tried under the appropriate statute. He then argues that more is required of a crime than that it be committed during his time in office. If the accused kills his father, poisons his wife or commits adultery, these are all criminal offences sanctioned by the law, but none per se meets the standard for conviction for maiestas laesa. If, however, the act at issue is performed in the context of the authority that he derives from the people (§14 auctoritate publica), then a case for maiestas laesa may hold. As an example of how the same speaker developed these claims, we may turn to the sententiae and his indignant complaint that the maiestas of the Roman people, which spreads through all the nations and all the provinces, now lies in the lap of prostitutes (§11 maiestas populi Romani per omnes nationes, per omnis diffusa prouincias, in sinu meretricum iacet).
Montanus’ next question turns on how a holder of imperium performs those duties that his office requires of him. One of these is punishment of the guilty, and nothing can be held against him if he follows all due procedure. What, however, if he fails to don the proper costume, ignores established custom, mounts the bench in a dinner suit and orders a party band to play when the blast of the trumpet is required? This is an issue of direct pertinence to the case of Flamininus because the theme identifies his chosen victim as a condemned criminal (unum ex damnatis) and his eventual execution will have been one of the proconsul’s formal responsibilities. It is not the prisoner’s death, but how and where and why he died that make Flamininus liable for prosecution. All this Montanus appears to have developed by comparison of the hypothetical scenario of the dinner suit and the party band with Flamininus’ actual actions and the assertion that what he did was much worse (§14 atqui quod fecit foedius est. et comparauit).
Montanus finally asks whether a crime that demonstrates the necessary connection to the maiestas of the Roman people is also sufficiently serious to constitute harm? If neither the strength nor the reputation of the Roman people has been harmed, then the defendant cannot be convicted. Here Montanus offers nothing so ambitious as the counter-claim familiar from the courts and the rhetorical textbooks of the Republican period, that the acts at issue have in truth enhanced the maiestas of the people.Footnote 69 He simply asserts that Flamininus has done no actual harm to the strength or the reputation of the Roman people. The point here is twofold: the death of one prisoner clearly has no impact on the strength of the Roman people, but neither does it affect the nation’s reputation: the disrepute belongs to one man alone and has no bearing on the community as a whole. Montanus canvasses the contrary view, that others judge the community by the standards of the individuals it chooses to represent it, but he has little time for such arguments. How he developed his case is apparent from the points attributed to him in the colores at §19: looking back to the faults of Q. Fabius Maximus Gurges, Manlius Torquatus, Sulla and Lucullus, he reminds the jury how much the Roman people have tolerated in their generals, the implicit point being that here too they perceived the disrepute as fastening on the individual and not the community he represented.
Neither Montanus nor Silo nor any of the other speakers whose contributions Seneca records offer any more precise a definition of maiestas than do their Republican predecessors. They do, however, share with them one fundamental presumption: whatever maiestas is, it is the property of the Roman people and a part of it has been vested in Flamininus via the office that he holds. The diuisio itself contains seven references to the populus Romanus, one in §13 and six in §15; the sententiae and the colores contribute a further two each (§§3, 11, 19, 24). When speakers ask whether ‘we’ gave you a legate and a quaestor so that you might dine with a prostitute or refer to ‘our’ empire, ally and praetor, they take on the collective identity of the populus Romanus and speak for them.Footnote 70 This also underpins the speakers’ persistent reference to the lictor as executionerFootnote 71 and to the misuse of the fasces, the rods and the axe in the course of the execution.Footnote 72
In contrast to those late Republican cases that involved the sacrosanctity of the tribunes of the plebs, this is not a case where the Roman people are differentiated from and pitted against the senate. Rather, the populus Romanus refers to the state as a single, united entity that grants to Flamininus the powers that he abuses: if he is praetor, his authority stems from election to office; if he is proconsul, he must first be elected and serve as consul, then participate in a public distribution of provinces by sortition.Footnote 73 For declaimers projecting themselves back into the early second century b.c. this is, on one level, merely to respect the conditions that held at the time. On another, however, the very act of reconstructing those conditions can prompt reflection on how much has changed in the years since Actium. Nobody in Controuersiae 9.2 has to talk about the different sources of authority in imperial and senatorial provinces or to ask how meaningful any such division really is. Nor does any individual or family feature, an attack on whom would constitute damage to the maiestas of the Roman people as a whole. In its reversion to a constitutionally less complicated time, Controuersiae 9.2 may come across almost as an exercise in nostalgia, but the very term nostalgia encodes a sense of pain, and the desire to look homeward can be the expression of discomfort with where one finds oneself in the present.Footnote 74
A further feature of Montanus’ diuisio may be considered in the same terms. In §15, the declaimer engages with issues on which a successful case for the defence must turn. As has been noted, the bulk of this argument turns on the contention that the actions of Flamininus do not in fact constitute harm to the maiestas of the Roman people, and, for his purposes, such denial should be sufficient in itself. Yet, in the middle of making this point, Montanus goes further and inserts a positive statement of what does constitute damage to the maiestas of the Roman people:
is laedit populi Romani maiestatem qui aliquid publico nomine facit: tamquam legatus falsa mandata adfert, sic audiuntur tamquam illa populus Romanus dederit; imperator <turpe>foedus percussit, uidetur populus Romanus percussisse et continetur indigno foedere.
He harms the majesty of the Roman people who does something in the name of the people; an example is if an ambassador bears false messages, and these are heard as if the Roman people had given them; if a general strikes a disreputable treaty, the Roman people appear to have struck it and are bound by an unworthy treaty.
What matters here is how far the examples that Montanus offers make maiestas cohere with the categories of offence identified by the lex Cornelia. The first instance given is that of an ambassador who communicates false messages. Though this specific example is not covered by surviving statutes or case law on maiestas, the principle is evident from Livy’s account of the events leading up to the nation’s defeat by the Gauls at the Allia: the misdeeds of an ambassador damage the reputation of the Roman people as a whole and must be repudiated by the people should they wish to evade disaster.Footnote 75 The second concerns the general who binds the Roman people by an unworthy treaty (indigno foedere). Here a clear precedent is to be found in the case of C. Popilius, who, in the aftermath of defeat by the Tigurini, could only secure his retreat by agreeing to hand over hostages and half of the property of the army. Orosius describes this as a treaty most disreputable (turpissimo foedere) and reports that, on his return to Rome, Popilius only escaped prosecution from the tribune Caelius by entering into voluntary exile.Footnote 76 The charge in this case was perduellio but, given the degree to which offences previously marked as perduellio came in the first century b.c. to be treated as maiestas, there must be a strong legal basis for Montanus’ claim here that such an offence represented an authentic violation of maiestas.Footnote 77 For all that the trial of Flamininus for maiestas laesa is a declamatory fiction, those cases of authentic harm adduced by Montanus are grounded either in Roman statutes or in case law or in both. It is therefore all the more important to recall that, in order to establish the second quaestio and to set out how the defence should respond to it, he is in no sense bound to introduce any positive sense of what real maiestas laesa looks like. That he takes the opportunity to do so speaks as much to the world in which he lives as to that of 184 b.c.
VI Maiestas and the liability of the priuatus
The preceding pages have surveyed how the declaimers employ the diuisio to identify the issues on which the trial of Flamininus turns and how they handle them in the sententiae and the colores.Footnote 78 It has also identified presuppositions and claims that, while appropriate to the historical fiction of a trial held in the mid-Republican period, run up against the new reality of maiestas at the time when the speeches were delivered. In this section I look in greater depth at another point of tension between maiestas as a category of Republican jurisprudence and its emergent shape at the close of the reign of Augustus and through that of Tiberius.
As has been noted above, the first issue identified by Montanus in §13 is whether prosecution for maiestas laesa is available for any misdeed committed by a magistrate during his period of office or only those crimes committed in the course of carrying out that role. Montanus argues strongly for the latter position. Yet in the midst of this he injects a further point that moves in a rather different direction:
uis scire non a quo fiat ad rem pertinere sed quid fiat? priuatus potest accusari maiestatis laesae, si quid fecit quo maiestatem populi Romani laederet.
Do you want to know that what is relevant to the matter is not by whom the deed is done but what is done? A citizen holding no office can be accused of harm to maiestas, if he did something in order to harm the maiestas of the Roman people.
Having put all the emphasis on the claim that what makes Flamininus guilty of maiestas laesa is that the execution of the prisoner abused the authority vested in him by the state, Montanus acts to correct a potential misapprehension: anyone can damage the maiestas of the Roman people, not just an office-holder. Yet what Montanus here adduces as a logical proof elsewhere appears as an issue (quaestio) in its own right. Controuersiae 10.4 concerns a man who rescues exposed children and then prepares them for life as beggars by sundry acts of mutilation; he is charged with damage to the state (res publica laesa).Footnote 79 Not only does the wording of this statute partially echo that found at Controuersiae 9.2, but comparison of the diuisiones at Controuersiae 10.4.11–14 and 10.5.12–16 (also a trial for res publica laesa) reveals considerable overlap with it in terms of issues: both ask whether the deed done constitutes actual harm to the state and cite in contrast actions that certainly do;Footnote 80 both consider whether it is possible to harm the state by doing something which one is legally entitled to do;Footnote 81 the latter further considers whether the crimes of a single villain can damage the reputation of the state as a whole.Footnote 82 All this indicates that the law targeting harm to the state in Controuersiae 10.4 and 5 is cognate with that concerning harm to maiestas in 9.2.Footnote 83 It is therefore all the more noteworthy that Seneca observes in 10.4.14 that some include the question whether the state can be harmed by an individual without office (an possit a priuato homine laedi res publica) and that he records Sparsus declaiming to this effect. Seneca adds that one cannot put this question without asking whether the state can be harmed by a woman, an old man or a pauper and observes that, in declamatory cases tried under this statute, the defendant invariably claims that the state could not have been harmed by a citizen without office, a pauper, a sick man or an old man (ne potuit quidem laedi a priuato, a paupere, ab aegro, a sene).Footnote 84 Seneca’s account of the diuisio is dominated by the contribution of the revered Porcius Latro (§§11–13), and this further quaestio features as a rather unimpressive addendum. Inasmuch as Montanus in 9.2 treats it as an established fact that a citizen without office can damage the maiestas of the Roman people, it is unlikely that he would have been any more tolerant of the approach attributed to Sparsus in this exercise. Yet the fact remains that declaimers of this period were thinking about whether damage either to the maiestas of the Roman people or to the state could be accomplished by a citizen without office. In what follows, I investigate what could have brought such questions to mind.
To Quintilian writing at the end of the first century a.d., assault on a simple citizen constitutes iniuria, but the same offence committed against a magistrate will be maiestas.Footnote 85 The criterion to be employed is the status of the victim, not that of the assailant, and there is no reason to infer that the latter has any bearing on the matter. To the late antique jurists quoted in Digest 48.4, there is no doubt that a citizen without office can contravene the lex Iulia maiestatis; this he can do should he desert to the enemy or pass himself off as a magistrate and then knowingly do some misdeed.Footnote 86 Neither Quintilian nor the jurists appear likely to have had any time for the type of case for the defence that Seneca identifies as standard in the declamation schools. Things, however, had not always been the same.Footnote 87 In the years between the passing of the Lex Appuleia Maiestatis and the outbreak of civil war in 49 b.c., all but one of the reported or suspected trials for maiestas definitely turned on offences alleged to have been committed while the defendant held at least the rank of quaestor or was serving as tribune of the people.Footnote 88 In the case of tribunes, this could range from violent conduct while in office, particularly in order to ensure the passing of legislation, to disregard of the veto imposed by colleagues.Footnote 89 Quaestors were prosecuted for violent action taken to prevent the passage of unwelcome legislation and for incitement of military sedition.Footnote 90 The only proconsul known to have been prosecuted was accused both of unauthorised campaigning outside his province and of failing to hand over his province to his successor, but two others have been hypothesised.Footnote 91 Of the one possible exception to the pattern that I have identified, the prosecution of M. Atilius Bulbus, the very least that can be said is that he was a senator and that the accusation of maiestas related to his alleged instigation of mutiny on the part of troops serving in Illyricum.Footnote 92 This he is most likely to have done in the course of his quaestorship or as a military tribune.
The ancient sources say disappointingly little about the specific terms of any of the late-Republican maiestas laws. The provisions of the lex Cornelia reported at Cicero, In Pisonem 50 targeted misdeeds that could only have been performed by holders of imperium, but this is only one part of one law. Yet from each of the prosecutions summarised in the previous paragraph and documented in the Appendix at the close of this paper, it is clear that the defendant was vested with some part of the maiestas of the Roman people at the time that he committed the alleged offence, and that that offence involved abuse of the powers granted to him by the Roman people. Where, moreover, detailed statutes do survive, important comparative material can be identified. In particular, the inscription recording what is generally taken to be the lex Acilia repetundarum of 123–122 b.c. begins by specifying that it concerns the actions of Roman office-holders (and their sons) all the way from a dictator down to a tribunus militum of one of the first four legions.Footnote 93 In two other much more fragmentary inscriptions, we find lists of office-holders from dictator downwards while in the Pro Cluentio Cicero recites the terms of the lex Cornelia de sicariis et ueneficiis going upwards from the tribunus militum of the first four legions.Footnote 94 He indicates that the prosecutor, T. Accius, has railed against the fact that not everyone is held by the same laws (Cluentius was a Roman knight), urges that it would be better to pass new laws than disregard those that currently exist, and indicates that a senator must simply accept that he is to be held to a higher standard than a private citizen.Footnote 95 In the Pro Rabirio Postumo he indicates that the ‘first verse’ of many a law would run ‘dictator consul praetor master of horse’.Footnote 96 On the basis of this evidence, it seems highly likely that the quaestio maiestatis also restricted itself to offences committed by office-holders and their sons.Footnote 97
That a citizen without office may be prosecuted for maiestas features in two texts of the late Republic. The evidence of one of these, De Inuentione 2.52–56, has already been identified as a declamatory fiction and may therefore be disregarded. The second relevant passage comes at Cicero, In Verrem II.1.12. Here Cicero accuses Verres of having kept pirate chiefs alive and well in his house, after his return to Rome and having resumed the status of priuatus, and of having done so until Cicero intervened to reign him in (priuatum hominem praedonum duces uiuos atque incolumis domi suae, posteaquam Romam redierit, usque dum per me licuerit retinuisse). He then raises the threat that he will prosecute Verres in the quaestio maiestatis on this count (hoc in illo maiestatis iudicio si licuisse sibi ostenderit, ego oportuisse concedam). This passage forms part of an extended section in which Cicero accuses Verres of a rich variety of crimes and lists the various statutes under which, should he escape conviction in the repetundae court, he can still be brought to justice.Footnote 98 There is, as Mitchell notes, a certain amount of ‘rhetorical bluster’ in this section of the speech, and the prosecutions with which Cicero threatens Verres were destined never to materialise given that the defendant abandoned all hope after the first hearing and fled to voluntary exile in Marseille.Footnote 99 As for the specific events at issue, the more extensive account supplied at Verrine II.5.75–79 indicates that the description of Verres as a priuatus requires a degree of modification. For what Cicero states here is that Verres kept alive and in his possession one or more pirate leaders until his command expired (piratam uiuum tenuisti. quem ad finem? dum cum imperio fuisti) and that he continued to do so after the end of his office (uerum esto, sit tibi liberum omne tempus quoad cum imperio fuisti: etiamne priuatus, etiamne reus, etiamne paene damnatus hostium duces priuata in domo retinuisti?).Footnote 100 What is here at issue is therefore very different from a citizen who has never held office and whose diminution of the maiestas of the Roman people was performed in a purely private capacity. Rather, Cicero chastises Verres for his failure to recognise the formal end of his command and continuation of conduct that was legitimate only so long as that command endured. This has an obvious relationship to those probably tralatitious parts of the lex Iulia maiestatis that target the failure to quit a province on the arrival of a successor (quiue de prouincia, cum ei successum esset, non discessit).Footnote 101
For all that the trial of L. Quinctius Flamininus in Controuersiae 9.2 is manifestly a declamatory fiction, the fact that it turns on actions performed while the defendant held proconsular or praetorian imperium and can be argued to have involved abuse of appurtenances of that imperium means that it conforms to what can be established as normative for prosecutions under the Republican maiestas laws. To a declaimer of the age of Augustus and Tiberius looking back to the period between the passing of the first maiestas law and the outbreak of the civil wars, recognition of the fact that no prosecution had ever been launched under such a statute for deeds performed by a priuatus could make meaningful the quaestiones implied by Montanus at Controuersiae 9.2.13 and explicitly essayed by Sparsus and others at 10.4.14. To the same speakers operating at the close of the reign of Augustus and the start of that of Tiberius, the same issue had a new urgency and the types of prosecution being launched at this time will have seemed very different to what had come before.
What underpinned this change in the status of defendants under the maiestas laws? In his account of the first Tiberian maiestas trials, Tacitus observes that a precedent had been set under Augustus by the trial of Cassius Severus, whose defamatory writings against men and women of distinction must have been held to meet the criterion for diminution of the maiestas of the state as a whole.Footnote 102 Tacitus underlines this targeting of words over the distinctly more substantive deeds to which the maiestas laws had previously been applied, and subsequently marks a further stage along the path in the trial of the historian Cremutius Cordus, whose alleged crime consisted not of defamation but of praise, and not of the living but of the dead.Footnote 103 Yet there is more to be made of the case. First must come the issue of those whose defamation could be defined as maiestas minuta. Though Tacitus names no names, it seems likely that they included members of the imperial house; the 35 b.c. extension to Livia and Octavia of the perpetual tribunician sacrosanctitas granted the year before to Octavian now had its own long-delayed impact and, if one criterion for violation of maiestas was held to be the standing of the victim, then the emperor’s relatives met it in full.Footnote 104 And with the status of the victim must come that of the accused. For in stark contrast to the defendants in the Republican maiestas trials and, by extension, of M. Primus in 23 b.c., there is no evidence that Cassius Severus had ever held office, let alone composing his libels in the course of his responsibilities. Here too, Tacitus is silent, but not for long. For when he comes to the first maiestas prosecutions essayed under Tiberius, he describes the defendants Falanius and Rubrius as knights of modest standing (modicis equitibus Romanis).Footnote 105 His apparent point here is that these were test cases and staging posts on the way to the prosecution of more distinguished figures such as the praetor Granius Marcellus.Footnote 106 Yet in doing so he also reveals a very significant extension in the permitted application of the maiestas laws.
Earlier in this article, attention was drawn to the question of whether what is later referred to as the lex Iulia maiestatis is a single piece of legislation passed under Julius Caesar and of relatively limited scope, or rather two separate leges Iuliae maiestatis, the latter passed under Augustus and including, amongst a great deal of tralatitious material, some very significant innovations.Footnote 107 On the strength of the evidence gathered above, I conclude that there was an Augustan law; that it was passed in the final years of his reign; that it tasked the senate with trying at least some prosecutions for maiestas (alongside but soon superseding the established quaestio perpetua); and that it removed the status restrictions observed by the Republican standing court governing who could be held liable for maiestas offences.Footnote 108 In both the judicial powers that it granted to the senate and the extended protections that it offered to officeholders, such legislation might easily be portrayed as enforcing the traditional locus of authority in the state and even contributing to the res publica restituta. In time, obliged to try fundamentally malicious prosecutions on grounds that bore no resemblance to Republican precedent, some senators at least must have regretted this new authority. With a glowering and unpredictable Tiberius in attendance, the requirement that senators try maiestas cases was less an act of empowerment than a test of their loyalty.Footnote 109
VII Maiestas and the declaimers — the view from a.d. 37
Seneca is a strikingly jovial writer and one who relishes the ludic character of declamation. At times he appears almost to close his eyes to the darker side of this world. At Controuersiae 2.1.34–36, for instance, he delivers a light-hearted narrative concerning how the declaimers Valerius Syriacus, Bruttedius Niger and Iunius Otho handled an exercise turning on the theme of adultery, and then at 2.1.39 quotes the witty observation of M. Aemilius Scaurus that the insinuating style of Otho was like that of one whispering the news into one’s ear.Footnote 110 What he omits to mention is that in a.d. 22 Niger, Otho and Scaurus joined forces to prosecute C. Silanus on a series of charges that included scorning the maiestas of Tiberius,Footnote 111 and that Scaurus for certain and very likely Niger were eventually brought down by the same means.Footnote 112 It may be asked whether he finds it more powerful to leave it to the reader to make the connection. Looking back on all these events from a.d. 37, Seneca himself can scarcely have been indifferent to them.
As one moves mentally between the courtrooms of declamation and the real-world maiestas trials, it is hard not to note how many figures turn up in both. This is particularly true of Controuersiae 9.2. Some speakers here are notable for the close shaves that they experienced in a world where unguarded speech was ever more a source of peril; others found themselves prosecuted under the maiestas laws; and others still became emblematic of the new culture of malicious prosecution.
Three declaimers quoted in this exercise experienced close shaves. At Controuersiae 9.2.2 and 25, Seneca quotes two contributions to the trial of Flamininus from the declaimer Vibius Rufus whom, in the latter passage, he describes as speaking in the ‘old style’ (9.2.25 qui antiquo genere diceret).Footnote 113 In a.d. 16 the same man became suffect consul at Rome, but it could have been very different. This, at least, is what Cassius Dio records (57.15.6). Passing straight on from the case of the young L. Scribonius Libo, who was suspected of seeking to unseat Tiberius, brought into the senate when seriously ill and committed suicide as an escape from his troubles (57.15.4–5), Dio notes the good fortune of Vibius Rufus, against whom Tiberius levelled no accusation, even though he was wont to sit in the very seat in which Caesar had been assassinated. The historian adds that the same man married the wife of Cicero and gave himself airs on both points as if he was destined to become an orator on account of his wife and a Caesar on account of his chair.Footnote 114 The matter of the chair again reveals quite how easily reckless use of imperial accoutrements could bring one to the crimen maiestatis and to destruction.
At Controuersiae 9.2.3, Seneca quotes from the speech for the prosecution of Porcius Latro. Here the reader may think back to Controuersiae 2.4.12–13, where Maecenas, who is making a visit to his school alongside Augustus and Agrippa, twists an innocent slip by the declaimer into a slur against the humble origins of Agrippa. Seneca treats the fact that Latro did not finally suffer for this as proof of the spirit of tolerance shown by Augustus (and implicitly not by his successor).Footnote 115 A similar point may be made with regard to Albucius Silus, whose extended contribution for the prosecution is quoted at §§6–8. Albucius strikingly identifies the victim as a Roman citizen (8 ne sobri quidem carnificis manu ciuis Romanus occisus est), and here it may be borne in mind that Flamininus was serving as governor of Gaul at the time of his offence and that Valerius Antias places the episode in Placentia. For by the time that the crime of Flamininus became a declamatory topic, what was once a province of the Roman empire had been fully absorbed into the Roman citizenship. A man of Novaria, Albucius Silus was alert to this point. While speaking as counsel for the defence before the proconsul Lucius Piso at a trial in another city of this region, Mediolanum, he deplored the condition of Italy and complained that it was being driven back to the form of a province, then turned to a statue of M. Brutus standing close by and called on him as the originator and defender of law and liberty. For this he nearly paid the penalty.Footnote 116
If these three speakers escaped the worst consequences of unguarded speech, others were less fortunate. The trial of Cassius Severus for maiestas has already figured prominently in previous sections of this paper.Footnote 117 This must make it all the more noteworthy that Controuersiae 9.2.12 quotes his contribution to the trial of Flamininus. He is in fact speaking for the prosecution and objects that it is not right for punishment to be inflicted even on a slave or a prisoner wherever or however or whenever one pleases, and that a magistrate’s involvement in such situations is to ensure right practice, not to enjoy himself (ne de seruo quidem aut captiuo omni loco aut omni genere aut per quos libebit aut cum libebit supplicium sumi fas est, adhibeturque ad ea magistratus ob custodiam non ob laetitiam). This contribution is cast in the form of a universalising sententia: it is fully relevant to what Flamininus is alleged to have done but it is put in such a way as to state a generally applicable rule. When he says that it is wrong to do otherwise even in the cases of slaves and prisoners, his phrasing appears to point to a further category of victim — free citizens — who are beginning to endure such arbitrary chastisement and in whose cases this will seem more patently unjust. In this declamatory maiestas trial, Cassius is therefore speaking for the prosecution, but this serves him as a vehicle for commentary that, in his own time, would have been even more pertinent to the experience of the accused.
Another figure whose destiny stands in stark contrast to the lucky escapes just recounted is Votienus Montanus. As the preface to Controuersiae 9 opens, Seneca notes that his sons have asked him to say something about this gentleman and states that he never declaimed as a training exercise, let alone for display; the surviving sections quote what Montanus said in reply to Seneca, asking him why this should be the case: declamation is about entertaining the audience, not winning your case; those trained in the declamation schools are coddled by their teachers and receive no preparation suited to the rigours of trials in the forum (9.pr.1–5).Footnote 118 Yet elsewhere Montanus is presented as the epitome of the scholasticus and something of an innocent: Controuersiae 7.5.2 refers to the prosecution of Montanus by another declaimer, P. Vinicius, and records how, on the very same day, he observed that he had enjoyed Vinicius’ delivery and even repeated the sententiae that his prosecutor had delivered.Footnote 119 His end was not good. Tacitus, Annals 4.42 records his a.d. 25 trial and conviction on a charge of maiestas. The substance of Montanus’ offence was to have spoken insultingly of the emperor (ob contumelias in Caesarem dictas); the soldier Aemilius’ dutiful recitation of all that the defendant was alleged to have said so enraged Tiberius that he exclaimed that he would refute the slurs either on the spot or at trial; only the prayers of those closest to him and the flattery of all restored his equanimity.Footnote 120 Montanus died in exile on the Balearic Islands in a.d. 27.Footnote 121 Once again, the historical fiction of the trial of Flamininus enters into an uncomfortable relationship with reality.
One figure more than any other quoted in Controuersiae 9.2 exemplifies the perils of the age.Footnote 122 At §§ 4 and 22, Seneca quotes contributions to the prosecution from Romanius Hispo. In both, Seneca surely gives instances of what elsewhere he describes as the prosecutorial aggression of Romanius Hispo (Controv. 1.2.16: accusatoria usus pugnacitate) or of the same individual’s malign and prosecutorial manner (Controv. 2.5.20: maligne et accusatorie).Footnote 123 Why would Seneca emphasise this particular feature of Hispo’s declamations? Tacitus, Annals 1.74.1–2 surely supplies the answer. In what is only the third maiestas trial of the reign of Tiberius, he identifies Hispo as junior counsel for the prosecution and presents him as an archetype for all that was to go wrong in the coming years (1: qui formam uitae iniit, quam postea celebrem miseriae temporum et audaciae hominum fecerunt). Elaborating on this claim, he describes Hispo as needy, unknown, restless and adept at provoking the savagery of the emperor through secret publications (2: nam egens ignotus inquies, dum occultis libellis saeuitiae principis adrepit). Launching assaults on all men of the greatest distinction, he soon won influence with Tiberius and the hatred of everyone else (2: mox clarissimo cuique periculum facessit, potentiam apud unum, odium apud omnis adeptus). He was a prototype for all those who, following his path, made themselves rich and fearsome, and brought doom on others and finally themselves (2: dedit exemplum, quod secuti ex pauperibus diuites, ex contemptis metuendi perniciem aliis ac postremum sibi inuenere). One may wonder whether Romanius Hispo made his contribution to the trial of Flamininus before he set out on his career of maiestas prosecutions or simply as a pause and a training exercise between them. Either way, there is no innocence in his shuttling between the courtrooms of the declaimers and those of the state.
VIII Conclusion
This article has sought to show quite how much Controuersiae 9.2 can contribute to understanding of the maiestas laws in the early imperial period and vice versa. Its claims on the attention of historians are doubtless undermined by the manifest fictionality of the trial that it stages and by the ludic attitude of the declaimers as they coin sententiae and invent narrative colores. Though the historical Flamininus never stood trial for maiestas, the misconduct in office that resulted in his expulsion from the senate was apt to be related to categories of misdeed eventually targeted under the lex Cornelia maiestatis and the lex Iulia maiestatis. At its heart, in the contribution to the diuisio of Votienus Montanus, Controuersiae 9.2 does contain serious reflection on the proper application of the maiestas laws and with it an implicit critique of the uses being made of them at the close of the reign of Augustus and under Tiberius. Moreover, the same contribution records, if only to dismiss it, a line of argument in declamation that may be related to one distinctive and concerning feature of those maiestas trials held from the very first years of Tiberius: not only was the Republican standing court superseded by a newly empowered senatorial court, but the range of potential defendants was expanded in the process. When the declaimers of Controuersiae 9.2 and 10.4 ask whether it is possible for a priuatus to do harm to maiestas or to the res publica, they surely have more than half an eye on the misfortunes of Falanius and Rubrius, those knights of modest standing who would never have attracted the attention of the Republican court.
Above all else, however, this paper has sought to show what can be gained from expanding our conception of the judicial spaces of Republican and early imperial Rome to take in the declamatory courtroom. It matters that the earliest available evidence for fictional maiestas trials stems from Cicero’s De inuentione, a work of the 80s b.c., and it is only reasonable to conclude that those appearing in real-world Republican maiestas cases did so on the basis of the sort of schooling set out in Cicero’s manual. By the period of the Controuersiae, however, one crucial change had occurred. For sure, the declamatory schools of Rome still trained youths aspiring to a career in forensic (and political) oratory; but, along with pupils and pedagogues, Seneca also records the contributions of mature adults, many of them public figures, politicians and advocates. Where the late Republican orator left the rhetorical school in order to progress to the forum, the movement between spaces in the time of Seneca was significantly less unidirectional.
One temptation is to treat the declamatory courtroom as a place apart in which criticism of the regimes of Augustus and Tiberius could find subtly mediated voice.Footnote 124 There is a place for such an approach in this paper, and it makes a difference that the figure who offers the most stimulating commentary on maiestas as a legal category should himself eventually have been condemned under the lex Iulia maiestatis. Yet for every Votienus Montanus, there was also a Romanius Hispo, and he is but one of a number of declaimers quoted in the Controuersiae who also earned notoriety for their vicious exploitation of the maiestas law. The relationship between the senatorial and the declamatory courts is not one of compromised reality on the one hand, innocent play and reflection on the other. Many a declamator turned delator and many a delator heading home from court will have taken time out in the schools and played the declamator. It is as nasty as that.
Appendix: maiestas prosecutions in the Late Republic
The aim of this appendix is to document those prosecutions for maiestas minuta launched between the passing of the lex Appuleia and the outbreak of civil war in 49 b.c. and to offer support for the thesis that the law was exclusively applied to alleged misdeeds performed while the defendant was serving as a magistrate of the Roman people or as tribune of the plebs. The cases are divided by office:
(A) Tribunes of the Plebs:
(i) Sextus Titius: Jul. Obseq., p. 167.17–21 Rossbach refers to determined action taken by Sex. Titius as tr. pl. for 99 b.c. to pass an agrarian law in the face of the veto of his colleagues. This is the obvious basis for his prosecution in 98 b.c. (Cic., Rab. Perd. 24; Val. Max., 8.1. damn. 3 clearly distort the basis for the prosecution).
(ii) C. Appuleius Decianus: The trial of C. Appuleius Decianus (Cic., Rab. Perd. 24) almost certainly also related to his actions as tr. pl. for 99 b.c. (Schol. Bob., p. 94 Stangl). For more, see Gruen Reference Gruen1966: 37–8.
(iii) C. Norbanus: For C. Norbanus, who as tribune had used violence to see off the veto of two fellow tribunes when he sought to try Q. Servilius Caepio Senior in the concilium plebis, prosecuted for maiestas c. 95 b.c., see Cic., De or. 2.107, 197–204, Part. or. 104–105; Val. Max. 8.5.2; Bauman Reference Bauman1967: 45–52; Zetzel (Reference Zetzelforthcoming).
(iv) Cn. Pomponius: Badian Reference Badian1969: 474–5 convincingly identifies the 89 b.c. prosecution of Cn. Pomponius tr. pl. 90 b.c. as being obscured by the reference at Asc. 79C to a trial of Cn. Pompeius for maiestas under the lex Varia. This view is endorsed by Marshall Reference Marshall1985: 273–4.
(v) Q. Varius: Varius was convicted ‘under his own law’ in very late 90 or early 89 b.c. (Cic., Brut. 304–305, Nat. D. 3.81; Val. Max. 8.6.4), for offences committed during his tribunate of late 91 to late 90 b.c.
(vi) C. Cornelius: For C. Cornelius, who as tribune in 67 b.c. had ignored the veto of his fellow tribune P. Servilius Globulus and was twice tried in 66 and 65 b.c., see Asc. 60–62C; Bauman Reference Bauman1967: 71–5.
(vii) C. Manilius: For C. Manilius, tr. pl. 66 b.c. prosecuted in 65 b.c. by Cn. Minucius, see Schol. Bob., 73.25–24.3 Hildebrandt; the connection between the violence of the tribunate and the subsequent prosecution for maiestas is evident.
(B) Quaestors:
(i) Q. Servilius Caepio jun.: For Q. Servilius Caepio jun. tried for maiestas in 95 b.c. on the grounds of the violence with which, as urban quaestor for 103 or 100 b.c., he had resisted the efforts of Saturninus to pass a grain law, see Rhet. Her. 1.21, 2.17; cf. Sall., Hist. 1 fr. 62 Maurenbrecher; Bauman Reference Bauman1967: 39–40, 46–7.
(ii) C. Aelius Paetus Staienus: For C. Aelius Paetus Staienus, quaestor for 77 b.c., and tried between 74 and 70 b.c., for military sedition, see Cic., Clu. 99; Bauman Reference Bauman1967: 80–1.
(C) Proconsuls:
(i) A. Gabinius: For the 54 b.c. prosecution of A. Gabinius, for unauthorised campaigning in Egypt and the refusal to hand over his province to his successor, see Cass. Dio 39.55.3–4, 39.60.4, 39.62.2; Bauman Reference Bauman1967: 76–7.
(ii) C. Antonius: For the possibility that the 59 b.c. prosecution of C. Antonius was for maiestas either on account of his alleged role in the Catilinarian conspiracy or his incompetent 62 b.c. proconsulship in Macedonia, see Pauly, RE I.2580–2582. There is no definite evidence to support this claim.
(iii) Ap. Claudius Pulcher: For the hypothesis that P. Cornelius Dolabella’s 50 b.c. prosecution of Ap. Claudius Pulcher, proconsul of Cilicia 53–51 b.c., was for maiestas on the grounds that the defendant had left for his province without waiting for the passing of the lex curiata, see Bauman Reference Bauman1967: 79; Shackleton Bailey Reference Shackleton Bailey1977: 375.
(D) Uncertain but senatorial rank:
(i) M. Atilius Bulbus: Pauly, RE II.2078–2079 cites Cic., Verr. 1.39, which refers to the conviction for maiestas of M. Atilius and alleges that as a member of a senatorial jury he took bribes. Cf. Cic., Clu. 97 on M. Atilius Bulbus, who was bribed as a juror in the 74 b.c. trial of Oppianicus, but was also later condemned for maiestas for instigating seditio militaris in Illyricum.
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