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]
