PLINY AND REPETUNDAE TRIALS BEFORE THE SENATE
In this chapter, as in the next two, we are looking not at one but at a (linked) series of trials. Here the trials are all for the same offence and before the same court, but the different cases show different aspects of, and development in, both practice and policy.
Tacitus probably thought of himself as above all a writer, who also carried out the normal functions of a senator. Pliny, however, was something close to a ‘professional’ advocate. Further, the Pliny we know from the letters seems a conscientious, truthful man, self-important but hard-working, somewhat vain but not ungenerous, clearly not given to self-analysis. In this chapter we are looking at trials in which our author himself took part, where there is no reason to doubt his account, provided one makes the natural allowance for partiality.1 He was writing for publication, true, but in the interests of literary fame, not with an essentially moral objective; unlike Tacitus, he will not invariably have had a sub-text.
The crime of res repetundae
In this period, under the Emperor Trajan (AD 98–117), most of the criminal trials of which we hear were before the Senate on the charge of extortion from the provincials, de pecunia repetunda (or de pecuniis repetundis). Even in this brief period there were developments in criminal procedure. This offence had been the subject of the first quaestio perpetua in the mid-second century BC; the definitive statute governing extortion was the lex Iulia repetundarum, passed by Julius Caesar in 59 BC.2 This, like most such statutes, laid down its own procedure and its own penalty, almost certainly interdiction from fire and water,3 and simple restitution from the estate of the convicted man.4 The statute was supplemented under Augustus by the SC Calvisianum, linked with the fifth of the edicts to Cyrene,5 setting up a senatorial commission, but this dealt mainly with the procedure for estimating the damages; it became absorbed into the Senate’s overall jurisdiction. Moreover, the quaestio, the jury-court, seems to have fallen into disuse – at least for senators – by the start of Tiberius’ reign at the latest, and jurisdiction over res repetundae was exercised by the Senate, or occasionally by the emperor. Nevertheless, the terms of the lex Iulia remained the basis of the law throughout the Principate.
It covered the making or receiving of any improper exaction from the inhabitants of a province by anyone holding a magistracy or other office in the public service, or any violation of public duty following the acceptance of money;6 the normal element of gain is stressed by the prohibition on usucapion of things acquired contrary to the statute.7 The element of reparation meant that the heirs of an accused remained liable (for a year) for any unjustified enrichment.8 Originally only senators had been liable, but this liability was extended to the entourage (comites) of a governor or other office-holder,9 and then to equestrian office-holders in their own right.10 Under Tiberius, the Senate extended the liability to wives.11 The exaction of monies and other things also came to cover the acceptance of apparently freely offered presents,12 taking money for military appointments or other seemingly normal exercises of jurisdiction,13 also engaging in trade, including owning commercial vessels, buying slaves, except as replacements, demanding forage (or allowances in lieu) except when actually on circuit, and other offences of this sort.14 ‘The very length and complexity of the lex Iulia suggest that it dealt fully with innumerable types of illegal enrichment.’15
Julius Caesar had extended the liability so as to overlap with constitutional matters, including treason;16 it already seems to have overlapped with murder in the area of judicial corruption.17 Whether in the statute, or through its extension and interpretation, the abuses of official power included the taking of money to give or withhold a judgment, or taking a bribe to do more or less than one’s duty;18 further, and clearly applicable to private persons, accepting money to give or withhold evidence fell under the statute.19 Where the motive was malice, not gain, there was more likely to be liability under the lex Iulia de vi.20 It seems a convincing explanation that judicial bribery was added to the scope of res repetundae because that quaestio was particularly open to bribery, in view of huge sums that might be involved; this would also explain why corrupt acquittal was covered as well as corrupt condemnation.21
Proper behaviour by provincial governors was a matter of concern to the Roman ruling classes in the Republic. There were various motives: that the overburdened provincials should not be driven to rebellion, that they should not be so overwhelmed by private exactions that their taxes did not benefit the treasury, that Roman senators should maintain a good image. Governors were not expected to be saints, but they should show a decent moderation, and enforce justice; Verres’ behaviour was contrary to the accepted conventions of his class. Various accusations of repetundae were made in the period from 26 BC to the end of Domitian’s reign.22 At some stage in the first century the Senate came to sequestrate the property of somebody convicted of res repetundae so that realistic claims for reparation could be made.23 This meant that injured provincials would seem to have greatly improved their chances of recovering damages. The area ruled by the emperors from Rome was being consolidated, and the emperors viewed offences against the provincials as, at least potentially, offences against their good rule, the discipline of their times. This chapter is restricted to those prosecutions brought under Trajan for which we have the evidence of Pliny’s letters, reporting trials in which he had played a leading part as advocate, whether for prosecution or defence; thus we can see something of the inner workings of these cases.
The disappearance of ‘voluntary’ exile
One significant difference between the Republic and the Empire was the disappearance of the practice of ‘voluntary’ exile and of interdiction from fire and water. It was replaced by the more formal penalty of deportation, always permanent, with loss of citizenship and civil rights.24 Provincial governors did not have the power to deport.25 A milder form of exile was relegation, with retention of civil rights, even if the sentence was in perpetuity.26 Relegation might be accompanied by a fine or by the confiscation of some or all property;27 provincial governors had the power to relegate as well as fine.28 There was no explicit constitutional measure which brought about a change from voluntary exile to deportation, but in the second century forms of exile were able to be classified.29 It had in the old days been enough that exiles must live outside Rome and Italy,30 but Augustus in AD 12 forbade those interdicted from fire and water to live on the mainland, or on any island within 50 miles of it (with certain exceptions), and imposed various other restrictions on exiles’ way of life, such as not having a familia of more than twenty slaves or freedmen, nor being allowed to possess property worth more than half a million sesterces.31 (This shows very clearly that it was a penalty appropriate for the upper ranks of society.) Tiberius removed the capacity to make a will from those interdicted from fire and water;32 this applied subsequently to deportation but not relegation. Augustus’ severity was clearly modified by some later emperor, for we find in these trials under Trajan relegation being again used merely to exclude the condemned from certain places, and, in the juridical sources, their confinement to a particular province or place.33
The trial of Marius Priscus and his legate
The first trial to be considered is that of Marius Priscus, former governor of Africa (a province roughly equivalent to present-day Tunisia and the habitable coastland eastward). He was convicted in January 100, but the first stages were earlier; repetundae trials took time, particularly because of the difficulties of collecting distant evidence.34 On being charged – by only one city, Lepcis, but also by some individual provincials35 – before the consuls with simple extortion, probably towards the end of 98, he pleaded guilty, and applied for a commission under the SC Calvisianum to assess the restitution due. By this time it is clear that the Senate was likely to make a judicial inquiry before appointing the commission, and for this purpose advocates needed to be appointed for the provincials. Tacitus and Pliny, somewhat reluctantly, and only after considerable delays, were assigned by the Senate to act as patroni for the Africans.36 However, the two of them informed the Senate that financial compensation was inadequate for the crimes committed, since Priscus had taken bribes to sentence innocent persons to punishment and even to death.37 To change the grounds of the trial in this way was out of order, strictly speaking, in that a capital charge should have been brought by the victims, or their kin or companions. Further, there has been argument among modern scholars as to whether the charge was under the extortion law, or the lex de sicariis, ne quis iudicio circumveniretur, de vi, or even de maiestate,38 but Pliny himself makes it reasonably clear that it was the Julian law on res repetundae because money had been taken to do the deeds. ‘To show that my accusation was covered by the law dealing with the extortion of money I had to base my argument on the analogy of other laws as well.’39 Catius Fronto, acting for the defence, said that the issue should be limited to compensation – after all, the man had pleaded guilty to this section of the law. There was vehement discussion, ‘one side arguing that the Senate’s judicial powers were limited by law, the other that they were free and unlimited, and that the defendant should be punished to the full extent of his guilt’.40 It is possible that there had not been a full-scale extortion trial since that of Baebius Massa in 93.41 The Senate was already established as having the power to vary the statutory penalties42 – normally reducing them – but it was still guided by the leges.43 Deviation from the norms of the ordo needed to be argued for.44
Julius Ferox, consul-elect, proposed that the commission should provisionally go ahead, but that those alleged to have given the bribes to procure the conviction of the innocent be summoned as witnesses. The Calvisian procedure was limited to calling ten witnesses already present in Italy, that is, it was intended to comprise the provincial delegation bringing the complaint, but this proposal was for a full inquisitio, gathering all kinds of evidence and able to compel witnesses.45 The two procedures had been designed to be mutually exclusive, but the exercise of cognitio permitted such a compromise. Those alleged to have given bribes were Vitellius Honoratus and Flavius Marcianus, the latter, at least, a decurion of Lepcis, the city bringing the charge,46 and they duly came to Rome.47 Honoratus was charged with having bribed Priscus to exile a Roman eques and to put to death seven of his friends for 300,000 sesterces, and Marcianus with having paid 700,000 for which another eques had been flogged, condemned to the mines, and finally strangled in prison.48 Honoratus died (quite likely by suicide), and so escaped justice. Marcianus appeared before the Senate, but in the absence of Priscus, whose right to be present was in suspense since he had confessed to the lesser form of extortion.49 A senator called Tuccius Cerealis proposed that Priscus should be informed, which must have meant, summoned to attend. It was indeed only natural justice, says Pliny, that a charge made against two persons should be defended by both. However, although based on the same facts, the charges will not have been identical, since the repetundae law properly applied only to those who took money while holding office of some sort, and thus to Priscus, while Marcianus had given, not accepted, money and will therefore have been liable to a charge either of falsum,50 or of judicial corruption under the murder law, now extended to cover giving, with malicious intent, false evidence leading to a capital condemnation.51 Anyway, the hearing was adjourned until the next meeting of the Senate.52
The emperor, as consul, presided. Pliny spoke nearly five hours, being allowed four water-clocks to add to his original twelve (there were normally four to the hour, but it was possible to regulate them to run slower, which must have been done here). While the governing statute might regulate the times allowed to the advocates for their principal speeches, there was a general rule in criminal trials, going back at least to the lex Pompeia of 55 BC, that the defence had half as long again as the prosecution, normally nine and six hours respectively.53 Pliny was clearly the chief prosecutor; Claudius Marcellinus replied on behalf of Marcianus. After these speeches the case was adjourned. Next day Salvius Liberalis spoke for Priscus; Tacitus then replied for the prosecution, and Fronto finished for the defence, pleading for mercy; these together took up the second day. The hearing of the evidence, given after the main speeches as with the ordo, was accordingly postponed to the third day; such three-day sessions, adds Pliny, were normal in Senate proceedings.54
Cornutus Tertullus, consul-elect, proposed that Priscus be fined the 700,000 he had accepted – Marcianus was fined in that he had no claim to recover what was given turpi causa55 – and that Priscus should be exiled from Rome and Italy, while Marcianus should be exiled from Rome, Italy and Africa. On behalf of the Senate he finished by thanking Pliny and Tacitus for their efforts, a convention we have seen in the SC de Pisone. Senior senators supported him, until another consular proposed56 that Marcianus be banished for five years, which suggests that the earlier proposed sentence was perpetual, or indefinite, and the same fine for Priscus, but no further penalty other than the consequences of conviction under the Calvisian procedure; this more lenient proposal was eventually, however, heavily defeated.57
That was the end of the principal trial, but Priscus’ legate, Hostilius Firminus, was also implicated. It was proved from Marcianus’ accounts – these were necessarily open to the prosecution’s inspection – as well as from a speech made by Firminus himself before the Lepcis council (which illustrates that there was no problem with hearsay evidence, although it might have less force), that Firminus had aided Priscus in his extortions, and had also bargained with Marcianus for 200,000 for himself – 10,000 of which was paid under the disgraceful entry of ‘cosmetics’ (unguentarii)! But since Firminus, whether from ignorance or guilt, was not present, his case was referred to the next session (a week or so later) of the Senate.58 This too appears to show the Senate taking to itself powers of jurisdiction where no formal accusation had been made. Admittedly his guilt had been proved, but only obiter. Pliny reports that Firminus appeared before the Senate as manifestly guilty, but that there was disagreement between the consuls-elect as to his sentence, one proposing to expel him from the Senate – in effect an exercise of censorial powers rather than a criminal penalty59 – the other to leave him in the Senate but exclude him from the drawing of lots for provinces, meaning all forms of office, not just governorships. The latter prevailed, and Pliny remarked on the apparent leniency and actual severity of losing the privileges (or gains) of senatorial rank but not its duties; nevertheless, he held it wrong for one so censured to remain among those who censured him and to be able to sit in judgment on others accused of offences of which he had himself been found guilty – but then, that was how a majority had voted.60 It could be argued that the Senate had at least taken some steps of its own accord to control the wrongdoing of its members. There is no mention of Priscus’ other two legates, which one would have expected, as three was the normal number for the proconsular provinces of Africa and Asia.61
In a letter following a request for him to give a private recital of what was almost certainly this speech, Pliny explains that he had argued by analogy that crimes under the law on judicial corruption were also covered by the law dealing with the extortion of money. ‘This cannot have any appeal for the ordinary man, but its interest for the professional should be proportionately greater for the lack of it for the layman. It is certainly my intention, if I agree to this reading, to invite all the legal experts.’62 This seems an interesting example, perhaps typical, of senatorial development of the law.
The trial of Classicus and his companions
The next case, not long after, perhaps late in AD 99 or in 100, concerned the complaint of the whole province of Baetica (southern Spain), represented by the concilium provinciae, against Caecilius Classicus.63 Pliny had represented Baetica in 93 against Baebius Massa;64 he seems to have continued to have patronal ties with the Baeticans, and so agreed after some protests to represent them; he also needed imperial leave to be absent from his post as Prefect of the Treasury. He was the more ready to appear for them because Classicus was now dead; Pliny explicitly states that he was much happier about taking the case because of the impossibility of that most painful feature of a criminal trial, the downfall of a senator.65 This also makes clear that the other accused were not senatorial. Pliny felt that his having undertaken three prosecutions, of Baebius Massa, Marius Priscus, and now Classicus, might relieve him from any further duty of prosecution – still a problematic duty.66 Classicus himself could not be prosecuted for extortion, but he had had accomplices in his misdeeds, and they were still alive to answer charges.
Classicus had been governor of Baetica in the same year (AD 97–98) as Priscus was governor of Africa; his rapacity was matched only by his brutality. There was a wry Baetican joke: ‘I got as bad as I gave’, since Classicus’ origins were in Africa and Priscus’ in Baetica.67 He seems to have committed suicide to avoid prosecution.68 There never appears to have been any question of using the Calvisian procedure, but his death may have led to a referral back to the provincial council, sometime between September 99 and 100. Despite his death, the Baetici continued their action. The norm was that, while a dead man could not be subjected to a criminal charge – only in cases of treason were criminal charges ever brought against a dead man in the Principate – in the case of repetundae, where the main issue was that of restitution, and a man’s heirs were liable for any unjustified enrichment of his estate, it was good law to allow proof of the crime, although, says Pliny, the practice had lapsed quite a while ago.69
The provincials extended their action to bring charges against his comites, and Casta, his wife, as well as Classicus himself. Such liability was no longer exclusively senatorial; equestrian procurators exercising independent command had become liable, just possibly even as early as the time of Tiberius,70 but the prosecution of equestrian cohortes seems new.71 Each charge needed investigation, so a complex and lengthy case ensued. Pliny was chief advocate for the Baeticans, assisted by Lucceius Albinus. Pliny and Albinus feared that ‘the combined influence of the individuals concerned might procure for each the effect of the whole, and, finally, that the influential might make scapegoats of the humble, and so escape at their expense’. Pliny and Albinus therefore arranged that there should be three separate actiones, each occupying a senatorial session, and therefore spread over some four weeks, because of the separation.72
The first essential was to prove Classicus’ guilt, as being necessary for the conviction of accomplices. This was easy as he had left accounts in his own hand, with receipts for business deals and court cases, plus a letter (a file copy presumably) to his mistress in Rome, boasting that he had sold up the Baetici and made 4 million.73 Baebius Probus and Fabius Hispanus, whose names had been coupled with Classicus’ as defenders in the indictment, were more difficult to convict, says Pliny, since they were men of influence, in Rome as well as the province; clearly they were Roman citizens though not senatorial.74 Their defence was superior orders, and Pliny had to prove – successfully in the event – that carrying out wrongful orders was criminal, even by provincials in awe of a governor. This case, he says, set a precedent75 – but is this because the subordinates were equites, not senators, or because this case actually established acting under orders as an insufficient defence? The Senate decreed that all the property which Classicus had owned before his appointment to Baetica was to be set aside, and given to his daughter – there were presumably no other children – while the fruits of his office were – without multiple damages – to be returned to the provincials, even recalling what he had recently paid to his creditors. His creditors must have been seen as beneficiaries of unjustified enrichment, but the process presumably involved in integrum restitutio, so they would be able to claim against the estate. Probus and Hispanus were both relegated for five years; this was a fairly serious penalty, particularly as they, and their advocate, had not expected the defence of superior orders to fail.76 Then, a few days later, Claudius Fuscus, Classicus’ son-in-law, and Stilonius Priscus, who had been tribune of a cohort77 under Classicus, were charged; Priscus was relegated from Italy for two years, and Fuscus acquitted.78
There was then an unexpected turn to the proceedings.79 One of the witnesses, presumably from Baetica,80 brought a charge of collusion (praevaricatio) concerning Casta, Classicus’ wife, against Norbanus Licinianus,81 one of the official representatives of Baetica (and clearly someone with influence in Rome) and indeed one of those who had been commissioned to collect evidence.82 While the law laid down that allegations of procedural offences should be heard after the principal crimes had been tried,83 in this case Norbanus’ past history of profitable support for Domitian counted against him; he had been made a commissioner not for his honesty but for his animus against Classicus, by whom indeed he had been relegated after Domitian’s death.84 Perhaps too, the suspicion of collusion had already arisen out of the trial of Classicus’ misdoings, although it was then specifically alleged of Casta’s trial. Norbanus, reasonably, asked for a day to be appointed for his trial, and for specification of the charges, but these were refused him – a serious example of injustice on merely political grounds.85 He was obliged to defend himself on the spot, and against other charges as well as collusion. This put Pliny and Albinus into an awkward position. It was from Norbanus that they, as advocates and patroni, had received their instructions on behalf of the province; if he was guilty of collusion, they needed fresh instructions, so they remained seated throughout his trial.86 Surprise witnesses against him emerged from the Senate, when two consulars brought evidence of his calumniously joining (as subscriptor