The Evidence Given by Slaves in the Trials of crimen maiestatis

According to the rule being in force in Republican Rome, the slave testimony could not be used to the detriment of their owners, in particular in cases punishable by death (in caput domini), and the slaves could not bring charges against the owners. The few crimes in which exceptions were permitted was the crime of majesty. This article presents the most important views of Roman authors on the credibility of testimony given under torture and also explains the reasons for using torture in interrogating slaves. During the Principate period, the ban on interrogating slaves against their owners in maiestas cases was circumvented and then was abolished by imperial constitutions. During the Dominate period, the crime of lese-majesty was the only one in which a slave was allowed to accuse his master.


INTRODUCTION
This study discusses the issue of testimony given by slaves during trials in cases of the crime of lese-majesty which was one of the most grave offences against the state in ancient Rome. In particular, attention was paid to the testimony against the owners, since they raised the most doubts from the legal point of view. The concept of testimony covers both the testimony made by slaves as witnesses and in the form of accusation or even report of a crime.

EVIDENTIARY VALUE OF SLAVE TESTIMONIES
Witness statements (testimonia) were definitely the most important evidence in the Roman criminal trial and, as a rule, all those who did not fall under any prohibitions could testify. 1 Testimonies made by slaves were also used, although they were never referred to as testes, 2 and most sources refer to their interrogation not as interrogatio as in the case of free men, but quaestio. 3 The slaves were interrogated with the mandatory use of torture to increase the credibility of the testimony: the lowest social status made slaves exposed not only to being attributed a greater propensity to commit crimes, 4 but also -as it can be assumed -to questioning their honesty in testifying. At the same time, both literary and legal sources contain many statements demonstrating that their authors doubt the veracity of testimonies given under the influence of pain and fear. These were the factors pointed out by Cicero in his speech to defend Publius Cornelius Sulla: Cic. Sull. 78: Quaestiones nobis servorum accusator et tormenta minitatur. In quibus quamquam nihil periculi suspicamur, tamen illa tormenta gubernat dolor, moderatur natura cuiusque cum animi tum corporis, regit quaesitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur.
A similar argument appeared in De partitions oratoria, where Cicero also questioned the credibility of words spoken under torture -for some interrogatees prefer to lie rather than endure pain, while others, physically more resilient, will not reveal the truth either: The above arguments are not dissimilar to those voiced much later, during the reign of the Severan dynasty, in the eighth book of De officio proconsulis by Ulpian, who also advised caution in the evaluation of testimony made under torture, which do not always make it possible to achieve the primary objective of interrogation, i.e. to discover the truth: It follows from the rescripts cited above that the proceeding should not be started with inflicting unnecessary pain, and that interrogation of slaves using torture should be applied only when the other evidence has made the guilt of the suspect sufficiently plausible that it can only be ultimately confirmed by the testimony of the slaves. 6 Such testimony was only supposed to supplement other incriminating evidence; it could not be considered the sole evidence of guilt of the accused. It was all the more inadmissible to base the consideration of the case on the testimony of only one slave, excluding other evidence. This can be seen in view of the rescript of Emperors  Despite numerous objections, this method of taking evidence was apparently considered useful, since Cicero, in another passage of De partitione oratoria, suggesting again that one be cautious in evaluating the words spoken by the tortured, admits that if this method were to be considered useless, it would probably have been abolished by the ancestors. He considers both the prohibition of torturing free citizens and interrogating slaves to the detriment of their owners a sign of the wisdom of the Romans, unlike the Athenians and Rhodians: Cicero attributed the observance of the above rule to the wisdom of ancestors who considered a testimony obtained in such a contemptible way even sadder than the death of the owner: Cic. Mil. 22.59: Sed tamen maiores nostri in dominum quaeri noluerunt, non quin posset verum inveniri, sed quia videbatur indignum esse et domini morte ipsa tristius.
While noting the prohibition of torture of slaves testifying against their owners in cases punishable by death -in caput domini -in force during the Republic, Cicero also pointed to exceptions. Such testimonies could be used in trials for incest (incestum) and for conspiracy (coniuratio). In the passage cited above, the author undoubtedly referred to the events of 63 B.C., inspired by Lucius Sergius Catilina, who intended to seize power through a coup d'état. Cicero, a consul at the time, thwarted the conspiracy by exposing it to the Senate. Interrogating slaves in caput domini was permissible in the case of the crime of lese-majesty, one of the forms of which was coniuratio. The term coniuratio must be understood as a criminal offence against the State -coniuratio in rem publicam facta, although, as noted by L. Schumacher, Roman criminal law does not know that offence as such: there were neither leges governing that act nor special courts (quaestiones de coniuratione). 8 However, given that the criteria of the offence of maiestas were not strictly defined, it can be believed that the actions attributed to Catilina, such as conspiracy, treason or attempted political coup met these criteria. 9 According to Catullus' testimony, the Senate proposed prizes not only for freemen, but also for slaves (freedom and one hundred thousand sestertii). 10 Eventually, the basis for the indictment brought by Lucius Emilius Paulus under lex Plautia de vi was the use of violence (vis publica). 11 Such classification can be explained by the fact that the accusation was preceded by the senatus consultum ultimum of 21 October 63 B.C., since in this situation any acts of violence would have to be considered as posing a threat to the State security. 12 Cicero referred to these events in the above-mentioned speech in defence of Lucius Cornelius Sulla,  13 The author pointed out that both Cicero and other authors, i.a. Aristotle and Quintilian, did not generally deplore such questioning, but only stipulated not to draw erroneous conclusions from the questioning and not to believe unrestrictedly in everything said.

THE MANNER OF INTERROGATION OF SLAVES
In the trials before quaestiones, slaves were not interrogated by the entire court, but by the so-called quaesitor. Unfortunately, the historical sources do not allow us to determine precisely who performed this role in the proceedings before iudicium publicum, but it can be assumed that the president of the tribunal did not. The duty of the quaesitor was certainly to decide on the type of torture and the way it was carried out, and most likely he also had the right to ask questions to the slave who was being questioned, the latter right being also vested in the parties. Based on such an interrogation, a report called tabella used to be drawn up, read out and stamped by those present during the quaestio, and then forwarded to the court. The slave interrogation reports contained a very detailed description of the course of the hearing, probably by citing literally each question the slave was asked during the quaestio, and each answer given. Moreover, it used to be noted whether the slave told the truth immediately, whether he had done so during torture and withdrew or maintained previous testimony. 14 It is worth mentioning that due to the gravity of this crime, the proceedings also had other special features, which constituted exceptions to the rules of Roman criminal procedure. These included the possibility of prosecution by persons who cannot act as prosecutors in other cases, and who during the Republic were only allowed to submit informal reports. These persons included slaves when their owners were concerned (as well as freedmen in relation to their patrons), 15 as will be discussed further herein. At present, attention will be paid to the testimony of slaves questioned as witnesses in the cases of their owners accused of maiestas. The possibility of using the testimony of slaves testifying in caput domini in such cases seems to contradict two of Tacitus' passages in Annales. One of them concerns the trial of Libo Drusus, accused in A.D. 16 of an attempted coup d'état (moliri res novas -Tacitus, Annales 2.27). The proceedings were conducted before the Senate under an extraordinary procedure (cognitio extra ordinem). As the accused did not plead guilty, the Senate decided to question his slaves. In order not to violate the old Senate resolution, not specified by Tacitus in more detail, which prohibited the interrogation of slaves to the detriment of the owner, Tiberius ordered them to be transferred to the Treasury agent, which, as Tacitus notes, was an unprecedented solution: For both of these passages, it is intriguing that slave owners were taken away by the State from their owners in the event of the accusation of crimen maiestatis, where, according to the earlier Cicero's statement, there was a possibility of questioning slaves to the detriment of the owner. E. Loska, when questioning the credibility of Tacitus' statement, argues that it contains information not confirmed by any other source. However, it is worth asking whether lese-majesty was the basic charge faced by both defendants, or even was it a formal charge in both cases?

ACTS QUALIFIED AS CRIMEN MAIESTATIS
When studying the political processes of the period of Tiberius' rule, it is easy to notice that this ruler continued the practice initiated by his predecessor Augustus to bend the crimen maiestatis laws by constantly widening the catalogue of acts considered lese-majesty. Moreover, cases of maiestas were referred to the imperial court or, as in both of the above cases, to the Senate court, which, on the one hand, allowed the procedure of quaestiones 16 to be waived and the perpetrators to be 16  punished with discretionary penalties, and, on the other hand, certain legal tricks were used to ensure that acts previously unqualified as crimen maiestatis were tried by quaestio maiestatis under the laws on maiestas. 17 The Tacitus' statement about the growing role of legislation in these matters (Adolescebat interea lex maiestatis -Annales 2.50) can be referred to this practice. Although the catalogue of acts treated as lese-majesty used to be continuously expanded, it is uncertain whether in all the political trials mentioned by Tacitus and Suetonius the crimen maiestatis was a formal basis for the prosecution. While in the case of Gaius Junius Silanus, Tacitus clearly mentions this crime as one of the charges (although Tacitus suggests that the charge was made for purely procedural reasons: to prevent the defendant's relatives from helping him -Annales 3.67), 18 in describing the Libo's trial, he focuses on describing the acts the accused is charged with (without indicating their legal qualification) which involved asking fortune tellers about his future career, which could be interpreted as a sign of plans to seize the imperial power. Tacitus himself assessed the accusations presented by the accuser as stupid and irrelevant (Annales 2:30), which could only prove Libo's guilt when interpreted with a great bias against him. 19 However, Tacitus' comments do not show that the basic charge faced by both Libo and Silanus was the crime of lese-majesty (and in the case of Silanus, the author explicitly stated that the charge of crimen maiestatis appeared due to procedural reasons 20 ), which is why Tiberius could try to show that he op. cit., p. 69). Some authors attribute the authorship of this opinion to Sulla (see Th. Mommsen, Röömisches Strafrecht, Graz 1955, p. 203 17 For more details, see M. Dyjakowska,Crimen laesae maiestatis…, The fact that in the Silanus' case the charge of maiestas was of a secondary nature shows, according to R.S. Rogers (Criminal Trials and Criminal Legislation under Tiberius, Middletown 1935, pp. 67-68), that this charge, as presented by Tacitus, was neither put forward during the trial nor constituted the basis for the conviction. That would justify depriving Silanus of his slaves so that they can testify in his case. Rogers also doubts the objectivity of Tacitus' words about the reason for adding the charge of crimen maiestatis, attributing them to the historian's resentment towards the emperor.
19 For example, the question asked by Libo to the fortune tellers whether he would ever be so rich as to pave the Via Appia to Brundisium with money could be treated as a hidden question "will I be the emperor?", because such funds were available only to the emperor (see W. Seibt, Die Majestätsprozesse vor dem Senatsgericht unter Tiberius, Wien 1969, p. 30). It should be pointed out that Libo's questions to the fortune tellers concerned Libo himself, not the emperor or members of his family, which was considered a form of crimen maiestatis. For more details, see R. MacMullen, Enemies of the Roman Order: Treason, Unrest, and Alienation in the Empire, Cambridge 1966, p. 130 ff. 20 Tacitus, when discussing the trial of Caesius Cordus in A.D. 21, made a symptomatic observation that the charge of crimen maiestatis was regularly attached to charges of other crimes (omnium accusationum complementum erat -Annales 3.38), probably with the intention to increase the probability of conviction.
Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 02/09/2021 16:03:48 The Evidence Given by Slaves in the Trials of crimen maiestatis respected the old principle of not using slave testimonies against the owner. It is worth noting that according to Dio Cassius (Historia Romana 55.5.4) the trick of taking the slaves away from the owner and selling them to the Treasury agent or to the emperor himself so that he can then question them, was to be first used by Augustus in A.D. 8. The fact that the trick described by Dio related to the trials of crimen maiestatis may be supported by a mention about plots against Augustus and officials placed just after this sentence. 21 Although Dio Cassius did not explicitly mention the rewards for reports submitted by slaves, such rewards were mentioned in the Ulpian's 56 th Book ad edictum in the context of discussions between jurists on the lex Cornelia de iniuriis. 22 Moreover, another passage from Dio (Historia Romana 57.19) shows that under Tiberius' rule, as far as lese-majesty was concerned, not only slaves testifying against their owners, but even free citizens used to be tortured. Thus, contrary to the statutory prohibitions (probably included in the lex Iulia de vi publica from approx. 19-16 B.C.) providing for a penalty for a judge who tortured a citizen without respecting his right to provocatio, in maiestas trials even Roman citizens usually not subject to torture could not feel safe, 23 it is all the less surprising that the practice of torture in the cases of such slaves in caput domini perpetuated over time already during the reign of Tiberius, according to the Dio's account referred to above. A confirmation of this practice can be found in the fragment of Marcianus' comment on the lex Iulia maiestatis, quoted in the Code of Justinian: C. 9.8.6.1: In hoc item crimine, quod ad laesam maiestatem imperatoris pertinet, etiam in caput domini servos torqueri. Marcianus libro primo de publicis iudiciis titulo ad legem iuliam maiestatis.
The location of Marcianus' statement does not show that the permit to torture slaves to obtain testimony against their owners was already provided for in the lex Iulia de maiestate, probably dating back to the time of Caesar, not Augustus. 24 It should be borne in mind that the statements on that law, made by jurists mostly in D. 48.4, are merely a commentary and do not prove that the particular solutions were actually contained in the original text of the law.

U M C S
A similar statement from the rescript of Antoninus Pius and Severus is referred to in the same title of the 9 th Book of the Code of Justinian: C. 9.8.6.4: In hac causa in caput domini servi torquentur, id est propter causam maiestatis.
Interrogation with the use of torture was also used in the Granius Marcellus trial in A.D. 15 conducted before the Senate court. Marcellus was accused of a crimen maiestatis because he had allegedly insulted Augustus' statue. However, Suetonius' report did not make it clear whether it was the accused or his slaves who had been tortured. 25 L. Schumacher, who holds that this is about the torture of slaves in caput domini, stressed that the hearing was not at the emperor's request, but at the initiative of the court which, in an attempt to fulfill Tiberius' presumed wish, violated procedural requirements. According to this author, this trial set an important precedent for the future use of queastio servorum in maiestas trials without the emperor's initiative. Therefore, when M. Scribonius Libo was brought before justice the next year, the torture against his slaves would have not been a legal problem if the basic charge had concerned lese-majesty. 26 While during the reigns of Augustus and Tiberius the emperors resorted to the selling of slaves to be questioned in cases against their owners with the aim to comply with (at least formally) the principle of the inadmissibility of slave testimony in caput domini, this practice was replaced over time by taking the slaves from their owners for the benefit of the state only after the questioning. Ulpian explained that this was intended to induce slaves to tell the truth, since, on the one hand, they did not have to fear retaliation from the accused in case the testimony turned out to be unfavourable to them, on the other hand -they could not count on a reward from their owner, if they helped him by false testimony: Although the above explanation comes from Ulpian's work on adulteries, not lese-majesty, it seems that the information contained therein can be applied by analogy to the proceedings in cases of maiestas, since in both matters it was allowed to question slaves in caput domini. 27 U M C S criminum atque accusationis exordio ultore gladio feriatur. vocem enim funestam intercidi oportet potius quam audiri. maiestatis crimen excipimus.
Both constitutions concerned the prohibition of the acceptance of the accusation, or even denunciation submitted by a slave against the owner. According to the first of these constitutions, issued by Emperors Valens, Gracian and Valentinian in A.D. 376, proceedings were not initiated on the basis of such accusations or reports, and the slave had to be punished with death by burning (along with the denunciation). More graciousness was demonstrated by the authors of the second constitution dating back to A.D. 397, Emperors Arcadius and Honorius, who stayed content with the death penalty by beheading. The only crime that a slave could accuse the owner without being afraid of death penalty was lese-majesty.
Legal sources do not answer the question whether the slave was also interrogated using torture in the case of accusation brought by a slave against his owner. It seems that this question should be answered negatively: the prospect of torture would certainly not encourage slaves to bring accusations, 29 and yet the reason behind the extension of the group of those entitled to accuse of crimen maiestatis also to slaves was undoubtedly a concern for the most frequent disclosure of cases of planned or committed crime.

CONCLUSION
The special treatment of anti-state crimes in Roman law, including procedural peculiarities, was manifested in the admission of accusation made by those who were not granted such a right in other cases, and such persons were also slaves in respect of their owners. The gravity of this crime also determined the departure from the ban on interrogating slaves to the detriment of the owners. Thus, although there was a rule in Roman law that a slave could not aggravate the situation of his owner, 30 in situations of a threat to public order, this rule was ignored. 29 P.A. Brunt,op. cit.,p. 256. 30 Gaius D. 50.17.133: Melior condicio nostra per servos fieri potest, deterior fieri non potest. E. Loska (op. cit.,p. 463) notes that the essence of this rule concerned legal actions carried out by slaves, but it can also be referred to a situation where the testimony of a slave may have led to the conviction of his owner.