Deferring for a moment the consideration of the “Lex Majestatis,” which was the special bugbear of Tacitus, we may remark that either he did not realize the significance of the act by which Tiberius formally emancipated the Senate from his own control, in which case we attach little value to his opinions as a constitutional historian, or that he did see, but preferred to ignore, in which case we may dismiss his claim for impartiality. It is quite possible that he states correctly the opinion of some contemporaries of Tiberius, who frequently misunderstood a moderation for which they were not prepared, and who had so long acquiesced in the policy of Augustus that any other was beyond their comprehension; but Tacitus was not bound to a similar dullness, and still less are we bound to share his blindness. The act was one of the first political importance, and no modern historian would dismiss a similar action of a prominent statesman with a comment of seven words. We shall see that in this as in other similar measures, Tiberius was unsuccessful in his attempt to restore the Senatorial Government, but we cannot without gross injustice refuse him credit for making the attempt.
The next statement, “For he had revived the ‘Lex Majestatis,’ etc.,” is simply a lie, for the words would naturally be held to imply that the law in question had fallen into abeyance, and was now recalled to activity. Tacitus himself tells us in the very next sentence, that Augustus had extended the application of this law from deeds to libellous writings; nor was the “revival” of this application anything that we should understand as a revival. The Prætors, on entering office each year, made an official announcement of the sense in which they proposed to interpret the laws during their term of office, and of any modifications which were to be introduced in their procedure. Pompeius Macro, who was one of the Prætors for the year A.D. 15, asked Tiberius whether cases under the “Lex Majestatis” were to be heard. Tiberius replied that the laws must be enforced; he neither made a new law nor revived an old one, nor announced a fresh interpretation of a previous law; he simply announced that the previous practice should be continued, and this in the customary routine of business; it was the duty of Macro the Prætor, not of Tiberius the Princeps, to announce any proposed change in procedure. Tacitus may be right in assuming that it was in the power of Tiberius at this moment to take the sting out of the actions under the “Lex Majestatis,” and that he would have been wise in doing so, but he has totally misrepresented the facts in stating that Tiberius revived the operation of this law.
The history of the “Lex Majestatis” is not absolutely clear, but it is certain that comparatively early in the Republican period the laws provided for the punishment of a Roman citizen who by his acts diminished the majesty of the Republic: cowardice in the field, premature surrender, dishonourable breaches of faith by which the dignity of the State was impaired, were deeds punishable under this law. Its operation was extended under Augustus to words and actions tending to lower the dignity of private citizens and of the head of the State in whom the majesty of the Republic was centred and personified; to publish disrespectful or libellous statements about the Emperor, to plot against his life, to acquiesce in depreciatory criticism of his actions, were all things which could be brought under the “Lex Majestatis”; it dealt with treason, constructive treason, and ordinary libel. The penalties were severe, but the peculiar aggravation lay in the fact that the informer was rewarded. Similar laws are not unknown to modern States, and are not held to be necessarily detrimental to the body politic; at the same time, they are capable of being abused, and under the rule of Caligula, Nero and Domitian, the “Lex Majestatis” proved to be an engine of tyranny; informers drove a profitable trade, and the confiscations made under the law proved a source of revenue to these spendthrift princes. There is, however, no evidence that the grievance had been felt in the reign of Augustus, and Tiberius is hardly to be blamed for not annulling ancient legislation within six months of his accession, which had as yet caused little inconvenience. If there had been abuses, the remedy lay in the administration rather than in the repeal of the law.
Tacitus had at his disposal the whole body of the transactions of the Senate; if a good case was to be made out against the manner in which the “Lex Majestatis” was worked under Tiberius, all the material was before him; had there been serious abuses, the evidence was accessible. He, however, produces only three cases in the year 15 A.D., which he introduces with the following flourish: “It will be worth while to relate the charges which it was endeavoured to bring against Falanius and Rubrius, equestrians of no particular distinction, so that it may be seen from what beginnings this deadly bane started, with what artful management on the part of Tiberius it crept on, was then repressed, lastly blazed up, and carried everything before it.” Falanius was accused on two charges: he had enrolled a notoriously disreputable actor among the worshippers of Augustus; he had sold a statue of Augustus along with the garden in which it stood. Rubrius was accused of perjury after swearing by the name of Augustus. The charges were dismissed. Tiberius said that Cassius the actor had been included by Livia herself among the actors appointed to give a performance in honour of Augustus; that there was no reason for distinguishing between a statue of Augustus and statues of other gods, which were habitually included in the sale of houses and gardens; that Augustus had not been deified in order that his worship should lead to the ruin of the citizens; and as to oaths taken in his name, they must be treated like oaths taken in the name of Jupiter. He added with characteristic irony: “The gods can protect their own dignity.” These remarks contained in a letter addressed to the Consuls, as soon as the facts came to the Emperor’s ears, stopped the prosecution. The accusers were foolish enough, but it is not easy to see where Tiberius is guilty of encouraging informers in these cases.
The third case was more complicated. Granius Marcellus, the Governor of Bithynia, was accused by two different men at once of two different crimes: his subordinate, Cæpio Crispinus, charged him with extortion in the government of his province; Hispo, a professional informer, according to Tacitus, accused him of defamation of the character of Tiberius, of placing his own statue higher than that of the Cæsars, of cutting the head off a statue of Augustus and replacing it by one of Tiberius. Marcellus was acquitted of the charges brought by Hispo, which came under the “Lex Majestatis”; the charge of extortion was referred to the court appointed to hear such causes. Here again there is absolutely no evidence that Tiberius was inclined to press charges under the “Lex Majestatis”; the evidence is all in the contrary direction, but Tacitus, with an absolutely diabolical ingenuity, contrives to give his story the necessary twist. “Hispo pretended that Marcellus had made libellous speeches about Tiberius, a charge which it was impossible to escape, since the accuser picked out all the most abominable things in the character of the Emperor, and imputed the statement of them to the defendant. For because they were true charges they were believed to have been uttered.” And yet it was precisely on these charges that the man was acquitted. Tacitus, however, succeeded in stating that Tiberius was a man of abominable moral character, that everybody knew it, and in further suggesting that the statements were made in a court of justice with the acquiescence of the audience. It is not likely that the speech of Hispo was preserved, even if the case went so far as to allow him to make one, but the influence of the senatorial record in favour of Tiberius had to be dispelled, and is cleverly dispelled by the suggestion that the calumnies against Tiberius received a quasi-official sanction in the law court; if they were listened to, their truth was so obvious that nobody protested. After recounting the points in Hispo’s indictment, Tacitus continues: “Thereupon he (Tiberius) lost his temper to such an extent, that breaking his usual silence he declared that he would give his opinion on that case openly and on his oath, in order that the other senators might be obliged to do the same.” Tacitus would like us to think that the display of indignation was caused by the charge of defamation, but there were two other and better reasons for wrath. In the first place, extortionate proceedings in the provinces always stirred the wrath of Tiberius; Bithynia was a Senatorial Province; the Senate were still apt to deal leniently with one of their own order, and Tiberius may have detected indications that they were likely to take this line; in the second place, to couple a charge of extortion with a charge of defamation of the Emperor was a bit of sharp practice; the informer hoped to get his reward under the “Lex Majestatis,” because he believed that the man would be condemned on the charge of extortion, and that the prejudice thus created against him would secure his condemnation on both charges. It was an abominable trick, and Tiberius saw through it.
The conclusion of the narrative of Tacitus is no less ingenious; he says: “There even then remained some traces of expiring liberty. Therefore Gnæus Piso said, ‘In what place will you give your opinion, Cæsar? If first, I shall have something to follow; if last, I am afraid I may inadvertently differ from you.’ Thoroughly alarmed by these words, and penitent because of the imprudence of his outburst, he allowed the accused to be acquitted of the charges of ‘Majestas.’ The case of extortion was referred to the assessors.”
As these are the only three cases tried under the law of “Majestas” in the first twelve months of the reign of Tiberius, we must admit that he marched very slowly to that tragic wickedness to which Tacitus refers, and by means of an art which is so artful, as to be to our eyes absolutely invisible.
It is further to be remembered that there was formal documentary evidence of the charges, and of their subsequent dismissal, but no evidence can have been forthcoming as to the Emperor’s burst of temper, or the acquiescence of the audience in the supposed revelation of his wickedness except tradition and private memoirs. The remark of Gnæus Piso was to the point, but it is evidence of the weakness of the Senate, not of the tyranny of Tiberius.
Tiberius having thus summarily quashed three cases under the “Lex Majestatis,” and sent a senatorial oppressor of a province to be dealt with by the constitutional court, may have offended those surviving heirs of the old senatorial tradition to whom the restoration of the Senate implied the restoration of the abuses of the senatorial administration, but he had done nothing tyrannical. The narrative of Tacitus proceeds, however, as if Tiberius had waded knee deep in blood, and triumphed in the perversion of justice: “Not satiated with the processes in the Senate he used to attend the courts, sitting at the end of the tribunal, in order not to remove the Prætor from his official seat.” There is no question about the fact; Augustus used in the same unofficial fashion to attend the courts and watch the administration of justice, acting in this respect like any other Senator, but the skilful use of the words “not satiated” gives a sinister significance to an innocent statement.
The administration of justice was not above suspicion in the Roman Law Courts, and the presence of Tiberius among the jury secured a fair hearing. As Tacitus himself says, “Many decisions were given in his presence contrary to the bribes and solicitations of influential men,” and then follows the customary Tacitean comment, “But while the interests of truth were being looked after liberty was corrupted.” If liberty means the sacred right of senatorial juries and powerful men to secure maladministration of justice by means of bribes and private influence, we can hardly blame Tiberius for “corrupting” such liberty, and may be excused for not seeing any excessive adulation in the remarks which Paterculus makes in reference to the same procedure, “Confidence in the Courts of Law was restored.” “With what dignity does he (Tiberius) attentively listen to cases as a senator and juryman, not as Princeps and Cæsar!”