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The Roman Law of Treason under the Early Principate

Published online by Cambridge University Press:  24 September 2012

C. W. Chilton
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Extract

The two problems to be discussed here are :—

(1) Under what law or laws were charges brought in cases of treason during the first years of the Principate?

(2) What were the penalties prescribed by that law or those laws?

The answer to the first question raises no serious difficulties. It is true that apart from any consideration of perduellio no fewer than four laws de maiestate (to be discussed more fully later) were passed in the seventy years before the reign of Augustus. But it is clear that for all practical purposes these laws were comprehended and superseded by the Lex Julia of Augustus. Tacitus always speaks of a single law, e.g.

Ann. 1, 72, 3: ‘nam legem maiestatis reduxerat,’ and

Ann. 2, 50, i: ‘adolescebat interea lex maiestatis’

and the jurists always refer to a Lex Julia which must have been that passed by Augustus and not that of Caesar.

The answer to the second question also was until recently regarded as practically certain. It was held by all authorities, both Continental and English, that the only legal penalty was ‘interdictio aquae et ignis’, though with the establishment of the Principate there began a process of arbitrarily worsening the conditions of exile and even substituting the death penalty. But during the present century another view has been put forward—a view developed in most detail by R. S. Rogers in his Criminal Trials and Criminal Legislation under Tiberius (1935). In this book Rogers asserts positively and often that the Lex Julia embraced two different kinds of treason—high treason, which he calls by the old name of Perduellio, and Maiestas, which often amounted to no more than slander of the Princeps or his family—and that two different penalties were prescribed, viz. death (with confiscation of property and damnatio memoriae) for Perduellio, exile for Maiestas.

Type
Research Article
Information
The Journal of Roman Studies , Volume 45 , Issue 1-2 , November 1955 , pp. 73 - 81
Copyright
Copyright © C. W. Chilton 1955. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies

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References

1 cf., for instance, Strachan-Davidson, , Problems of the Roman Criminal Law, vol. 11Google Scholar, cc. XV and XVI (where he criticizes Mommsen).

2 His thesis is accepted by MissWalker, B. in her recent book, The Annals of Tacitus (Manchester, 1952), p. 88Google Scholar, n. 1.

3 See P-W 14, 546–7, s.v. ‘Maiestas’.

4 Sitzungsber. d. Heidelberger Akad. d. Wisseschaften, phil.-hist. Klasse, 1930–1, 5 abh.

5 Cicero Pro Caecina 100 (spoken in 69 B.C.) is an excellent summary of the attitude to exile at the time. ‘Exilium enim non supplicium est, sed perfugium portusque supplicii—confugiunt quasi ad aram in exilium.’ He then goes on to say that as one citizenship is left behind another must be adopted.

6 ‘vel adversus securitatem eius’ secl. Beseler, , Beiträge zur Kritik der römischen Rechtsquelle (Tübingen), 111, 1913, 164Google Scholar.

7 Ulpian Digest 48, 19, 2. Comments ascribed to Ulpian in 48, 13, 3, are evidently much interpolated, and condemned in toto by Levy, Kapitalstrafe, 35.

8 Studi storici per l'antichità classica 11 (1909), 377–415Google Scholar; cf. also his Processi politici e Relazioni internazionali (1918), 249–308. Rogers, first took up the theme in his essay ‘Ignorance of the Law in Tacitus and Dio’ (Trans. Amer. Philol. Ass. LXIV, 1933, 18–27)Google Scholar.

9 var. lec., ‘quisquis.’

10 ὁ οὖν Τιβέριος ἀγανακτήσας, οὖχ ὅτι ἐκεῖνος ἐκολάσθη ἀλλ᾿ ὅτι τις ὑπὸ τῶν βουλευτῶν ἄνευ τῆς ἑαυτοῦ γνώμης ἐθανατώθη, ἑπετίμησεν αὐτοῖς.

11 This is the aspect of his thesis particularly dealt with in his article in Trans. Amer. Philol. Ass. LXIV, 1933, 18–27Google Scholar, ‘Ignorance of the Law in Tacitus and Dio.’

12 τῶν οὖν αἰτιαθέντων…οἱ δὴ πλείους αὐτοὶ ἑαυτοὺς πρὶν ἁλῶναι διέφθειραν. ἐποίουν δὲ τοῦτο μάλιστα μὲν τοῦ μήτε τὴν ὔβριν μήτε τὴν αἰκίαν φέρειν…ἤδη δὲ καὶ ὅπως οἱ παῖδες τῶν οὐσιῶν αὐτοὺς κληρονομῶσιν ὀλίγαι γὰρ πάνυ τῶν ἐθελοντηδὸν πρὸ τῆς δίκης τελευτώντων ἐδημεύοντο.

13 Trans. Amer. Philol. Ass. l.c.