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MAJESTAS

MAJESTAS The only term for treason in early Roman law was perduellio, a word made up of per, para = “very,” and duellum, “war” (Charisius, 2.14, 159). Perduellis, a person guilty of this crime, originally signified a pronounced public enemy of the state, and then came to mean one who assisted a public enemy by his treachery (Varro, L. L. 5.1, 3; Cic. de Off. 1.1. 2, 37; Dig. 50, 16, 234: cf. L. Lange, de duelli vocabuli origine et fatis). According to the Twelve Tables, a citizen was perduellis who showed a hostile disposition against his country, either by stirring up an enemy against it (hostem conciere) or by surrendering a Roman citizen to an enemy (civem hosti tradere) (Voigt, XII. Tafeln, 2.172); but the offence, like that of treason in early English law, was not clearly defined, as is shown by the fact that the crime of Horatius in killing his sister was included, according to Livy (1.26), under the head of perduellio, and not under that of parricidium, to which it seems legally to belong. (Festus, s. v. Sororium: cf. Mommsen, Staatsrecht, 2.3 p. 615; Clark, Early Roman Law, p. 73.)

The earliest trial and form of procedure is that which is given by Livy (1.26) in respect of this case (cf. Liv. 6.20). In the regal period the jurisdiction over this and other capital offences belonged to the king, who might delegate his power to commissioners, called duoviri perduellioni judicandae. Under the Republic the jurisdiction was given directly to duoviri, who were appointed for each particular occasion by the Comitia. There was always an appeal (provocatio) from the duoviri to the populus. The perduellionis judicium existed at least in theory to the later times of the Republic (Cic. Orat. 46, 156); but the name seems almost to have fallen into disuse. (Mommsen, Staatsrecht, ii. pp. 542, 615-618.)

Perduellio was regarded as a religious offence in early times, the tutelary god being propitiated by the death of the offender (deo necari), who was put to death by flogging and hanging ( “infelici arbori reste suspendi . . . verberatum,” Cic. pro Rabir. perd. 4, 13; Liv. 1.26, 6). In course of time the punishment was aquae et ignis interdictio.

Voigt gives the following as cases of perduellio by stirring up an enemy against the state:--1. The case of Vitruvius Vaccus, 426 A.U.C., who was tried before a quaestio extra-ordinaria and convicted (Liv. 8.19, 4; 20, 6). 2. The case of the Tusculans, in 431 A.U.C., who were prosecuted by the tribunes and acquitted (Liv. 8.37, 8-11). 3. The case of Sempronius Gracchus, in 631 A.U.C., who was acquitted. The case of C. Popilius Laenas, in 647 A.U.C., is given as one of perduellio by surrendering a Roman citizen to an enemy (Auct. ad Herenn. 4.24, 34; Cic. de Leg. 3.1. 6, 36; Liv. Ep. 65). It should be added that Cn. Fulvius was charged with the offence of treason for losing a Roman army (Liv. 26.1, 3).

The term perduellio was still used under the Empire and is found in Justinian's legislation, but it is a question whether it was not merged for all legal purposes in the crimen majestatis. Ulpian, as cited in Dig. 48, 4, 11, distinguishes between the legal consequences of majestas which is perduellio and majestas which is not, so that we should perhaps regard perduellio at this time as a species of majestas.

The word majestas consistently with its relation to mag[nus] signifies the magnitude or greatness of a thing. “Majestas,” says Cicero (Part. Orat. 30, 105), “est quaedam magnitudo Populi Romani;” “Majestas est in Imperii atque in nominis Populi Romani dignitate.” Accordingly the phrases majestas Populi Romani, Imperii majestas (Hor. Carm. 4.15), signify the whole of that which constituted the Roman state; in other words, the sovereign power of the Roman state. The expression minuere majestatem consequently signifies any act by which this majestas was impaired; and it is thus defined by Cicero (de Invent. 2.17, 53): “Majestatem minuere est de dignitate, aut amplitudine, aut potestate Populi aut eorum quibus Populus potestatem dedit, aliquid derogare.” (See Cic. ad Fam, 3.1. 1: “Majestatem auxisti.” ) The phrase majestas Publica in the Digest is equivalent to the majestas Populi Romani. The crimen majestatis, or, to use the complete expression, crimen laesae, imminutae, deminutae, minutae, majestatis, is the offence of injuring or attempting to injure the sovereign power of the Roman people. Accordingly it is defined by Ulpian (Dig. 48, 4, 1) to be “crimen illud quod adversus Populum Romanum vel adversus securitatem ejus committitur.” Thus the conception of the crimen majestatis is more abstract and wider in scope than perduellio or than that of treason in English law.

Various leges were passed for the purpose of determining more accurately what should be majestas. These leges were a Lex Apuleia, probably passed in the fifth consulship of Marius, the exact contents of which are unknown (Cic. de Or. 2.2. 5, 49); a Lex Varia, B.C. 91 (Appian, App. BC 1, 37; Cic. Brut. 89, 304; Valer. Maxim. 8.6.4; Cic. pro Scaur. 1, 3; Tuscul. 2.24, 57); a Lex Cornelia, passed by L. Cornelius Sulla, which appears to have consolidated and made considerable additions to the law of majestas, bringing under it a number of acts of usurpation on the part of provincial governors and of magistrates. Sigonius has attempted to collect its capita. By this law majestas became the subject of a quaestio perpetua (Cic. in Pis. 21, 50; pro Cluent. 35, 97; ad Fam. 3.11: cf. Zachariä, Corn. Sulla, 2.129-131; Volkerstaert, de L. Cornelio Sulla legislatore, pp. 154-160). Lastly, there. was the Lex Julia de majestate, which continued under the Empire to be the fundamental enactment on [p. 2.115]the subject. This Lex Julia is by some attributed to C. Julius, and assigned to the year B.C. 48, and this may be the lex referred to in the Digest and Code. That a Lex de majestate was passed in Caesar's time appears from Cicero (Philipp. 1.9, 23). But more probably the Lex Julia de majestate was one of the Leges Juliae of Augustus. Like many other leges, the Lex Julia was modified by senatusconsulta and imperial constitutions; and we must not conclude from the title in the Digest (48, 4), ad Legem Juliam majestatis, that all the provisions enumerated under that title were comprehended in the original Lex Julia.

The offences comprised under the head of crimen majestatis may be divided into two heads: (1) Attacks against the public security generally; and (2) treason specially directed against the person of the emperor.

(1.) Under this head we may include acts of the following kind:--Bearing arms against the state, adhering to the public enemy in various ways, sedition directed against the state, inciting to mutiny, making war or levying troops without authority to do so, killing a Roman magistrate, the refusal of a governor to leave his province after he had been superseded, and other unlawful acts of officials, the forgery of public instruments, &c. (Dig. 48, 4, 1, 2; Paul. 5, 29, 1.)

(2.) Under the Empire the term majestas was applied to the person of the reigning Caesar, and we find the phrases majestas Augusta, imperatoria, and regia. It was, however, nothing new to apply the term to the emperor, considered in some of his capacities, for it was applied to the magistratus under the Republic, as to the consul and praetor (Cic. Philipp. 13.9, 20; in Pisonem, 11, 24). Horace even addresses Augustus (Ep. 2.1, 258) in the term “majestas tua,” but this can hardly be viewed otherwise than as a personal compliment, and not as said with reference to any of the offices which he held. It was by the extension of the crime of majestas that the emperors first raised themselves above the ordinary law. They were not content with the protection which the Lex Cornelia had given to magistrates by making it treason to kill, or perhaps even to attempt to kill them; but the most trivial acts of disrespect to the emperor's person or authority became treasonable in course of time. Augustus availed himself of the Lex Julia for prosecuting the authors of famosi libelli ( “cognitionem de famosis libellis, specie legis ejus, tractavit,” Tac. Ann. 1.72; Dio Cass. Ivi. 27; Sueton. Aug. 55). The proper inference from the passage of Tacitus is that the Lex Julia did not properly apply to words or writings, for these were punishable otherwise. [LIBELLUS 2.] The passage of Cicero (Cic. Fam. 3.11) is manifestly corrupt, and, as it stands, inconsistent with the context; it cannot be taken as evidence that the Lex Majestatis contained any express provisions as to libellous words, as to which there were other sufficient provisions [INJURIA]. Under Tiberius the offence of majestas was extended to all acts and words which might seem to be disrespectful to the Princeps, as appears from various passages in Tacitus (Tac. Ann. 1.73, 74; 2.50; 3.38, 66, 67).

It was treason to do anything which could possibly be construed as disrespectful to the statues of the emperor. It is stated by Marcianus, as cited in the Digest, that it was not majestas to repair the statues of the Caesar which were going to decay; and a rescript of Severus and his son Antoninus Caracalla declared that, if a stone was thrown and accidentally struck a statue of the emperor, that also was not majestas; and they also graciously declared that it was not majestas to sell the statues of the Caesar before they were consecrated. In the time of Tiberius it was a matter of charge against a man that in selling a garden he had included a statue of Augustus; which Tiberius declared to be no offence (Tac. Ann. 1.73). There is also an extract from Saturninus, de Judiciis, who says that if a person melted down the statues or imagines of the emperor, which were already consecrated, or did any similar act, he was liable to the penalties of the Lex Julia majestatis. Augustus wished to treat an act of adultery with a female member of the imperial family as treason; but it was declared by Tiberius that this was not the law (Tac. Ann. 2.50; Mommsen, Staatsrecht, 2.754). The violation of an oath which a person had sworn by the Genius or Salus of the emperor was included in the crimen majestatis. The assumption by a private person of a divine as well as of a regal title of honour made him subject to the law of treason (Mommsen, op. cit. 2.755, 817). It was sufficient to constitute treason that a treasonable act should have been begun, but a mere intention to commit the offence without any overt act was not treason. (For the mode of procedure in trials on account of laesa majestas, see CRIMEN, QUAESTIO.)

An inquiry might be made into an act of treason against the Imperator even after the death of the offender (Cod. 8, 9, 6); a rule which was established (as we are informed by Paulus) by M. Aurelius in the case of Druncianus or Druncanius, a senator who had taken part in the outbreak of Cassius, and whose property was claimed by the fiscus after his death. Perhaps the account of Capitolinus (M. Ant. Phil. 100.26) and of Vulcatius Gallicanus (Avidius Cassius, 100.9) is not inconsistent with the statement of Paulus. On the case of Druncanius, see Tillemont, Histoire des Empereurs, vol. ii. p. 382. Women were admitted as evidence in a case of laesa majestas, and the case of Fulvia is cited as an instance.

The torture was only applicable generally to slaves and not to freemen, but it is provided that, in case of treason against the emperor, all persons should be in the same position as slaves in respect of liability to torture. (D. C. 60.15; Paul. 5, 29, 2; Tac. Ann. 15.56; Dig. 48, 18, 10.1.) Tiberius sold a man's slaves to the actor publicus (Ann. 3.67) in order that they might not fear to give evidence against their master, who was accused of repetundae and also of majestas.

The crime of majestas was punished with increasing severity under the Empire. The old punishment was perpetual interdiction from fire and water; but now, says Paulus (S. R. 5.29, 1), writing at or about the close of Caracalla's reign, persons of low condition are thrown to wild beasts, or burnt alive; persons of better condition are simply put to death. The property of the offender was confiscated and his memory [p. 2.116]was infamous (damnatio memoriae). A constitution of S. Severus and Antoninus Caracalla declared dared that from the time that an act of majestas was committed a man could not alienate his property or manumit a slave, to which the great (magnus) Antoninus (probably Caracalla is still meant) added that a debtor could not after that time lawfully make a payment to him. (Dig. 48, 4; Cod. 9, 8; Walter, Römische Rechtsgeschichte, § 803; Rein, Crim. Recht, p. 493; Dieck, Geschichte des Röm. Majest. verbrechen; J. Weiske, Das Crimen Majestatis der Römer; Brugmans, de Perduell. et Majest. Crim.

[G.L] [E.A.W]

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