Women in Criminal Trials in the Julio-Claudian Era by Tracy Lynn Deline B.A., University of Saskatchewan, 1994 M.A., University of Saskatchewan, 2001 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (Classics) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) September 2009 © Tracy Lynn Deline, 2009 Abstract This study focuses on the intersection of three general areas: elite Roman women, criminal law, and Julio-Claudian politics. Chapter one provides background material on the literary and legal source material used in this study and considers the cases of Augustus’ daughter and granddaughter as a backdrop to the legal and political thinking that follows. The remainder of the dissertation is divided according to women’s roles in criminal trials. Chapter two, encompassing the largest body of evidence, addresses the role of women as defendants, and this chapter is split into three thematic parts that concentrate on charges of adultery, treason, and other crimes. A recurring question is whether the defendants were indicted for reasons specific to them or the indictments were meant to injure their male family members politically. Analysis of these cases reveals that most of the accused women suffered harm without the damage being shared by their male family members. Chapter three considers that a handful of powerful women also filled the role of prosecutor, a role technically denied to them under the law. Resourceful and powerful imperial women like Messalina and Agrippina found ways to use criminal accusations to remove political enemies. Chapter four investigates women in the role of witnesses in criminal trials. The final part of the thesis is a prosopographical survey, presenting a case by case analysis of all the trials considered in this study. The conclusion emphasizes that the changing role of women in Roman politics is striking. The emergence of the senate as the court that heard trials like these is an important development. Women are now seen entering the senate and speaking at trials as witnesses and defendants, participating (intermittently, to be sure) in senatorial proceedings, from which they had been completely banned in the Republic. Women were perceived as more than capable of being agents in political intrigue, a perception confirmed and reinforced by the high-profile legal and political maneuvres of the younger Agrippina. This was a new level of public attention, and at a high cost for those who were convicted, whether they were actually guilty of a criminal offense or merely political targets. 11 Table of Contents Abstract . ii Table of Contents iii List of Abbreviations iv Acknowledgements v Dedication vi Chapter 1 Introduction 1 Part 1: Sources for women on trial Standard procedure of a criminal trial Emperors in court Part 2: Precedents without trials: the two Julias Chapter 2 Women as Defendants 5 14 16 19 29 Part 1: On charges of adultery Adultery legislation old and new law Cases of adultery Adultery as a political charge Part 2: On charges of maiestas Defendants charged with maiestas alone Defendants charged with maiestas as one of multiple charges Defendants on probable charges of maiestas Politically motivated charges Part 3: On charges of veneficia et devotiones and others Defendants on a single charge Defendants on multiple charges Defendants on unrecorded charges Politically motivated charges — 32 35 40 65 90 94 109 117 124 132 134 141 149 154 161 Chapter 3 Women pro accusatoribus Antonia Tryphaena Messalina Agrippina the Younger Junia Silana The End: Messalina and Agrippina 167 173 187 199 204 Chapter 4 Women as Witnesses 209 Conclusion 225 Prosopographical Survey of Women in Criminal Trials 240 Bibliography 346 Appendix 1: Chronological Listing of Women in Criminal Trials Appendix 2: Stemmata 361 363 111 List of Abbreviations: Abbreviations of classics journals follow the standards laid out in L ‘Année Philoiogique; abbreviations of classical authors and their works follow the standards laid out in the Oxford Classical Dictionary. CIL Corpus Inscr4’tionum Latinarum Dig. Digest ofJusitinian (1985) 4 vols., Latin text of Th. Mommsen and P. Krueger, trans. A. Watson, University of Pennsylvania Press, Philadelphia. EJ Documents Illustrating the Reigns ofAugustus and Tiberius (1955) V. Ehrenberg and A.H.M. Jones (eds), Clarendon Press, Oxford. FIRA Fontes luris Romani Antejustiniani (1941-) 3 vols., S. Riccobono, J. Baviera, C. Ferrini, J. Furlani, V. Arangio-Ruiz, S.A.G. Barbera (eds), Florence. IGRR Inscriptiones Graecae adRes Romanas Pertinentes (1909-1927) vols 1, 3, 4, ed. R. Cagnat, Paris. ILS Inscriptiones Latinae Selectae, vols 1-4 (1892-1916), Weidman’s, Berlin. Inst. Justinian ‘s Institutes (1987) Latin text of P. Kruger, trans. P. Birks and G. McLeod, Cornell University Press, Ithaca, N.Y. 3 ORF Oratorum Romanorum Fragmenta, Paravia, Torino. P]R’ Prosopographia Imperii Romani (1897-1898) H. Dessau et al. (eds), Berlin. 2 pjp Prosopographia Imperii Romani (1933-), second edition, F. Groag, A. Stein, L. Petersen (eds), Berlin. RC Raepsaet-Charlier, M.-Th. (1987) Prosopographie desfemmes de l’ordre senatorial qer Jf siècles,), 2 vols, Peeters. 31(1 ed. (1953) ed. H. Malcovati, G.B. — RE Pauly ‘s Realencyclopadie der classischen Altertumswissenschaft, neue Bearbeitung, begonnen v.G. Wissowa, (1893-) Stuttgart. SEG Supplementum Epigraphicum Graecum Smaliwood Documents illustrating the Principates of Gaius, Claudius, and Nero (1967) ed. M. Smaliwood, Clarendon Press, Oxford. iv Acknowledgements I am grateful to the faculty, staff, and fellow graduate students in the Department of Classical, Near Eastern, and Religious Studies at UBC for inspiration and support through this doctoral journey. Particular thanks go to Dr. Anthony Barrett, whose erudition and expertise in Roman history are impressive and inspirational. I am grateful for a generous doctoral fellowship from the Social Sciences and Humanities Research Council of Canada and for University Graduate Fellowships and other funding provided by the University of British Columbia. Special thanks to Drs. Leanne Bablitz, Charmaine Gome and Lyn Rae for asking tough questions and engaging in stimulating conversations in the reading room, hallways, stairwells, pubs, and various other dark corners. Very special thanks to Dr. Shelley “Are you done yet?” Reid whose unstinting support was critical in the writing process. Gratitude beyond words is owed to my family, especially my children: Kieran, Kaylee, and Kendra. Your love and support mean everything. My children and I also thank Mom, Jen, Melanie, and Shelley for preserving my sanity by providing me with conversation, crying towels, chocolate, and/or wine at the appropriate moments. v For my cliifcfren: 7(ieran 7(ay(ee 7(encfra vi CHAPTER 1 Introduction to Women in Criminal Trials Even a quick perusal of Tacitus’ Annales and Suetonius’ Vitae Caesarum gives the reader the sense of a huge number of trials involving various members of the elite orders of Roman society (both senatorial and equestrian). 1 A significant number of these cases involved women as defendants, co-defendants, and even as prosecutors. This study focuses on the intersection of three general areas: elite Roman women, criminal law, and Julio Claudian politics. Many historians have studied Tacitus, Suetonius, and other early imperial historians, and there are many scholarly publications on those topics. Similarly, many historians have studied Roman women, and others have studied Roman law. There are very few, however, who have paid close attention to the intersection of these three areas; in fact, no full length treatment of this subject has been published. A.J. Marshall’s 1990 article “Women on Trial in the Roman Senate” did indeed compile and briefly analyze information about trials held in the senate, but the subject warrants a more thorough treatment. The parameters of this dissertation fall into three categories. Temporally, it limits itself to the Julio-Claudian era (31 BC to AD 68). Socially, the focus is on elite women in Rome; the vast multitude of non-elite women who must have appeared in court have left virtually no trace in extant records. In the legal sphere, this study focuses on criminal trials only, and explores the historical, political, and legal contexts and consequences of these trials. Note that the term ‘trial’ refers to criminal proceedings rather than civil litigation. There are many examples of elite women’s involvement in private law, all of which are outside the scope of the present study. The Julio-Claudian period provides an opportune window in which to study women in a political and legal context because of the relatively plentiful narrative sources. We should not assume, however, that the political and legal activities of women disappeared at other times merely because the window was obscured. In Dio’s later books and in imperial rescripts preserved in Justinian’s Digest, ample evidence is available about politically and legally powerful women. They were full-contact players in the political game and were not scorned in the law either. We must recognize, however, that the Julio-Claudian era is unique because it marks the beginning of the Empire and therefore new definitions had to be created and clarified, particularly in the context of treason. It is no surprise to find a generation filled with treason trials as the boundaries of treason under the new order were explored and defined. The Julio-Claudian era is, therefore, unique and worthy of study, as are the politically-inclined women of the time. The Roman definition of crime is distinct from our own. Many actions that modern citizens might call crimes — theft, fraud and so on — were civil actions under the Roman legal code. Only actions that harmed the collective or the state were considered crimes by Roman definition; no crime, therefore, fails to be political. The frequency of women’s involvement in criminal trials during the Julio-Claudian period is thus a reflection of the heightened political involvement of women. This peak in frequency is distinct from the preceding late republican or the subsequent Flavian or Antonine periods. Under the Julio-Claudians, the criminal law began to be used as a means of implementing political reprisals both against women and by women. Women appear as targets of politicized criminal charges in their own right, that is to say, they were more than co-defendants of their husbands or male family 2 members. They had something (high birth, relation to the imperial family) that politicians wanted, or that they needed to get out of the way for their own political gain. A criminal indictment attacked not only the defendant’s conduct, but also her honour. According to Lendon, “In the Roman world, one’s moral reputation was an integral part of 2 Every criminal indictment carried with it the risk of conviction, and one’s rank in society.” thereafter, dishonour. Although honour was a personal quality, its aura extended over household and connections by blood and marriage. 3 Yet we shall see that the marks against honour caused by a criminal conviction did not definitively preclude political success for a woman’s family members. After Aemilia Lepida’s conviction in 20, her second ex-husband Scaurus held a suffect consulship in 21, less than a year after the conclusion of the trial. Lepida’s conviction did not slow his political career even slightly, even though he had spoken in favour of leniency during her sentencing, an opinion certainly opposite to her accuser’s and plausibly opposite to Tiberius’. Her brother Lepidus, who defended her at trial, was similarly unaffected and was offered a proconsulship in Africa in 21 (which he declined due to illhealth) and another in Asia in 26/27. Even less of a stain was left on members of the imperial family. The younger Agrippina and her sister Livilla were exiled for adultery and conspiracy by their brother Caligula, but were recalled and pardoned two years later by their uncle, the new emperor Claudius. Agrippina eventually went on to marry Claudius, and her son Nero became emperor in turn. The injury to Agrippina’s honour from her conviction in 39 was not insurmountable, either for herself or for her son. The blood of divus Augustus was in itself a powerful source of honour. The absence of any permanent 2 Lendon (1997) 41. Sen. Ben. 5.19.5; PlinyEp. 5.11; Plut. Cato mm. 39.4; Dig. 188.8.131.52 (Ulpian); Lendon (1997) 45; Sailer (1994) 93—94. Tac. Ann. 3.35; 4.56. 3 stain or disqualification is surely a reflection of the common acceptance that these trials were often intensely political and often contrived. The changing role of women in Roman politics is striking. There were about twenty women (and approximately seventy-five men) accused of treason that we know of during the reign of Tiberius alone. Women were percieved as more than capable of being agents in political intrigue, a perception confirmed and reinforced by the high-profile legal and political maneuvres of the younger Agrippina. The emergence of the senate as the court that heard trials like these is an important development. Women are now seen entering the senate and speaking at trials as witnesses and defendants — or we may picture Agrippina sitting concealed behind the prosecutor’s bench with a self-satisfied smirk. These women were participating (intermittently, to be sure) in senatorial proceedings, from which they had been completely banned in the Republic. This was a new level of public attention, and at a high cost for those who were convicted, whether they were actually guilty of any offense or were merely political targets. The dissertation is organized as follows: this chapter provides background material on literary and legal source material, standard court procedures, the role of the emperor, and the difficult cases of Augustus’ daughter and granddaughter that formed precedents for the legal and political thinking that followed. The remainder of the dissertation is divided according to women’s roles in criminal trials. Chapter Two, Women as Defendants, encompasses the largest body of evidence and is split into three thematic parts that concentrate on charges of adultery, treason, and other crimes. A recurring question is whether the defendants were being targeted in order to hurt them personally, or to injure their male family members politically. Analysis of these cases reveals that most of the accused 4 women suffered harm without the damage being shared by their male family members. Chapter Three, Women pro accusatoribus, considers that a handful of powerful women also filled the role of prosecutor, a role technically denied to them under the law. Resourceful and powerful imperial women like Messalina (wife of the emperor Claudius) and Agrippina (mother of the emperor Nero) found ways to use criminal accusations to remove political enemies. Chapter Four, Women as Witnesses, investigates women in the role of witnesses in criminal trials. The final part of this study, Prosopographical Survey of Women in Criminal Trials in the Julio-Claudian Era, is a case-by-case presentation of the fifty-eight women who were involved in criminal proceedings, with analysis and bibliography for each. Sources for Women on Trial The most important sources for the topic under investigation are the main historical authors for the Julio-Claudian era: Tacitus, Suetonius, and Cassius Dio. It is necessary, therefore, to examine some of the biases and weaknesses inherent in the works of these authors. Although the most crucial source for this topic is Tacitus, from whom a great deal of our knowledge is derived, this discussion begins with the authors less central to the study, then turns to Tacitus and his writings, biases, and historiography. A fmal section will outline some problems inherent in the juristic sources that provide legal background to our study. Cassius Dio was born in about AD 163/4 and wrote between 207 and 219. Thus a gap of 150 to 220 years separates him from the cases that interest us. None of our cases is known from Dio alone; his history serves to furnish some additional detail to the information provided by Tacitus and Suetonius. It is interesting to note that Dio wrote under the Severan emperors under whom imperial women achieved a power and influence unmatched since the Millar (1963) 192—193. 5 5 Julio-Claudians. Dio’s general acceptance of a monarchical system of government (he concluded that it was all but inevitable) 6 is quite distinct from Tacitus’ attitude that the rise of imperial government meant the end of freedom and the corruption of the true Roman way. Dio’s work thus has a different tone and is not critical of innovative imperial practices in the early Empire. Dio says virtually nothing about the proliferation of treason trials and delatores in the Julio-Claudian era. One of the intrinsic problems of Dio’s Histories is its incomplete state. Relevant to our study are books 55 through 62, all of which are fragmentary to a greater or lesser degree. The surviving fragments of the text have been gleaned from several different epitomes, the most useful and voluminous of which were compiled by Xiphilinus, an eleventh-century monk, and Zonaras, a twelfth-century writer. 7 Much scholarly effort has shown that these excerpts tend to reflect the meaning of Dio ‘s original text faithfully; however, these portions of the text are still subject to some challenge. Despite these inherent difficulties, however, the information provided by Dio (and his epitomators) can still be useful to our discussion. Suetonius was most likely born between AD 67 and 72, though scholars have proposed dates as widely separated as 61 and 77•8 Because he dedicated his biographies of the Caesars to the praetorian prefect of 119—122, many scholars believe that Suetonius likely wrote and published this work at about the time he was dismissed from his position as ab epistolis in Hadrian’s court in 122. Suetonius was, therefore, no more than a young child in 6 Dio 44.2.1—4; 47.39; 53.19.1; 56.43.4; compare Millar (1963) 75. Millar (1963) 2—3; see also Boissevain, Cassii Dionis Cocceiani Historiarum Romanarum Quae Supersunt, vols. 1—5, (1—3 are text), Berlin (1898—1931). 8 Jones (1968) 129; Baldwin (1983) 27 suggests AD 61/2; he notes (p. 3) that Mommsen’s (1869) 43 “notion of 77 seems (rightly) to have lapsed.” Syme (1958) 778 suggests c. AD 72. Mace (1900) calculated a natal year of AD 69 or 70; editors of both the Loeb and Budé series have accepted this date. Wardle (1994) 13—14. Townend (1959) 285—293, suggests that the Lives of Caesar and Augustus were published before Suetonius’ dismissal from Hadrian’s court and the subsequent Lives were published later, the 6 the aftermath of Nero’s reign and the latest trials under discussion. The earliest trials occurred more than half a century before his birth. Very few cases are reported in Suetonius alone, but his accounts provide important corroboration and correction to Tacitus’ narrative and help fill in events from AD 37 to 47, for which period Tacitus’ Annales are lost. A biographer rather than a historian, Suetonius generally maintained his focus on the main character of the Life and did not write in any depth about the lives of other men or women except as they were related to that main character. Furthermore, he seems to have no particular interest in the law and thus did not record court-related anecdotes. Suetonius’ choice of anecdote is based on rather less than obvious methodology; his attention was caught by something interesting to him or merely powerful in popular gossip. Where we can compare Tacitus’ and Suetonius’ account of the same incident, (such as the trial of Aemelia Lepida in AD 20) Tacitus’ version is rather more expansive and therefore more useful.’° On the other hand, Suetonius is sometimes more accurate on questions of chronology (for example on Caligula’s birth, or on the trials of the elder Agrippina). ’ 1 Velleius Paterculus is the only historian who can claim the status of eye-witness to Tiberius’ reign. Unfortunately for this study, his focus is generally martial and he makes few references to women or to political trials. A notable exception is his description of Augustus’ daughter Julia’s adultery in 2 BC and the emperor’s reaction to it. Likely, these events got his attention because they directly affected Tiberius, whom he idolized. Velleius makes no mention of the treason trials during the reign of Tiberius; he may have believed that author’s banishment from the archives thus explaining the reduced quality of research demonstrated in the later Lives. Baldwin (1983) 51, on the other hand, suggests publication by 117. ‘° Tac. Ann. 3.22—24; Suet. Tib. 49. ‘ See Agrippina, no. 6. Tacitus’ handling of the birth of Caligula (Ann. 1.41.3) is confused and inferior to that of Suetonius (Cal. 8.1), whose account is confirmed by the Fasti Vallenses and Fasti Pighiani; Barrett (1989) 6—7and255n.9. 7. mentioning these highly unpopular measures would have been perceived as critical of Tiberius. Notably, Velleius does not even defend the necessity of treason trials. Tacitus was born in southern Gaul or northern Italy in the late 50’s AD. 12 Because the time period of this study is expressly limited to the Julio-Claudian era, only the Annales is relevant. He wrote this work around AD 112—115 and the cases which this study examines occur between 2 BC and AD 65. The largest possible gap between the events and Tacitus’ recording of them is over a hundred years; the minimum is a fifty-year gap between Tacitus’ earliest composition in the Annales and the latest events in our study. Tacitus would have been at most a young boy in 65, almost certainly precluding any eye-witness testimony from the author himself, although he does note that he has spoken to eye-witnesses. 13 We must agree that there was at least one level of narrative or interpretation interposed between Tacitus and the events he describes; in the composition of his narrative, he used other writings: historians, biographies, autobiographies, letters, public records.’ 4 However, Tacitus was a senator and an insider in the political world, so he had access to the people and insider information that would most usefully (and accurately?) inform his narrative. Certainly Tacitus understood the political world about which he wrote; he had spoken in court, he had held high political office, he had dealt with the imperial family. Tacitus’ bias and narrative purpose Despite his famous disclaimer that he would write sine ira et studio (Ann. 1.1), Tacitus can be charged with bias on a number of counts. He reveals his poor opinion of the 12 Woodman (2004) xi, suggests a date of AD 56; cf Birley (2000) 230—247, who suggests a birth date of AD 58 in Trier; Syme (1958) 63, suggests AD 56 or 57. ‘ Tacitus refers directly to his sources atAnn. 3.16.1, 11.27, 15.41.1; he refers indirectly to his sources by saying, “there was a report,” atAnn. 11.34.1, 15.65.1; and “some transmit,” atAnn. 1.29.4, 2.40.2. 14 Devillers (2003) especially chapter 1; Woodman (2004) xiv; Martin (1981) 199—213; Syme (1958) 271—303. 8 emperors and the imperial system in many subtle ways, particularly displaying a bias against Tiberius that seems unwarranted; he portrays him in a bad light at every opportunity and repeatedly emphasizes the shortcomings of his character.’ 5 Therefore Tacitus’ emphasis on treason trials and the bad influence of the delatores during Tiberius’ reign furthers the expression of his negative opinion about Tiberius. On Caligula and the early years of Claudius’ reign, Tacitus has been muted by misfortune: books seven through ten of his Annales, covering the entire four years of Caligula’s reign and the first six years of Claudius’, have been lost. The central thesis of Tacitus’ treatment of Claudius was that ignorance of his wives’ and freedmen’s machinations led him to despotism. 16 Nero was an untried youth vaulted to the throne by his mother’s schemes and, at first, controlled by her and guided by his tutors. After murdering his mother, he spent the remainder of his reign making a mockery of all that was dignified by dedicating himself to various lovers, chariotracing, musical contests, and stage performances. Tacitus also displays a general bias against women, and he is particularly hostile in his treatment of women who have transgressed the bounds of socially acceptable behaviour; ambitious women of the imperial family earn his particular enmity and he rarely mentions them without a negative or prejudicial note. 17 At the same time, one must acknowledge that Tacitus did not write in a cultural vacuum and that there were pervasive stereotypes about women in Roman literature. One particularly relevant stereotype is that a woman was always IS For example, Tac. Ann. 1.11.2, 24, 52, 76.4. Note the well-known comparison of Tacitus’ treatment of Tiberius and Germanicus in which the latter was portrayed in glowing terms even when his actions were patently incompetent when resolving the Rhine mutiny in AD 14. His personal charm and popularity stood in stark contrast to Tiberius’ dour and difficult character. Vessey (1971) 399; Levick (1990) 193. On the other hand, as Barrett (1996) 73 states, “the emperor’s wives 6 ‘ should be seen more properly as his accomplices and allies rather than as hostile agents undermining a benign and generous regime, and Claudius should be seen as happy to use them to help secure his own ends.” Syme (1958) 534, argues that Tacitus did not despise women, but that he described women as equally arrogant and licentious as men of the time; Barrett (2002) 239. 9 ready to commit adultery, and once she had sold her virtue, she was capable of any other 8 atrocities.’ The ancient sources are notoriously unreliable about women’s sexual misconduct and political invective regularly deploys adultery as a weapon against women. 19 The presence of specific women at a Roman trial (on the side of defendant or prosecutor) may be taken as historical fact, but the rhetoric surrounding her presence and her character is attributable to the historian and to the culture surrounding the events. 20 Historians generally felt that the affairs of women were not appropriate for inclusion in their writings. Suetonius, for example, typically discusses women as family only. Nonetheless, the absence of women from a piece of writing is different than the presence of women who are portrayed negatively. Therefore we must pay attention when Tacitus mentions a particular woman in a particular way. Tacitus uses rhetorical descriptors to colour the women in his narrative. He describes Livia with almost unrelenting hostility and has no hesitation in using colourful descriptors. ’ 2 Livia was a devoted wife, but Tacitus describes her repeatedly as “stepmotherly” and 22 On the other hand, he uses equal colour in praising Agrippina the Elder; she “malevolent”. was a fertile wife, devoted to her husband and children. 23 Foreign (Germanic) women are portrayed as noble, as having the desirable courage and strength that Roman women (and men) have lost in their soft, over-civilized modem lives. These endorsements stand in sharp 18 Cato ap. Quint. 5.2.39. Kiefer (2000) 43 points out that, in the early days, there was no punishment for adultery so the crime was attacked obliquely under the charge of poisoning. The first legal penalties for adultery came with Augustus’ marriage laws. ‘ Pagan (2004) 15; cf. Richlin (1981). Pagán (2004) 15. 20 21 Barrett (2002) 239—246. 22 For example, see Tac. Ann. 1.3.3, 6.3, 10.5, 33.3; Barrett (2002) 240—243. 23 For example, Tac. Ann. 1.40—41; 2.43.6; 2.75; 3.1; but even praise for her mighty spirit (ingens animi) at 1.69 was immediately sabotaged by Tiberius’ alleged concerns that Agrippina was a threat because she was more powerful among the troops than the legates or generals (potiorem jam apud exercitus Agrippinam quam legatos, quam duces). 10 relief compared to the vast majority of Tacitus’ dour or cynical references to women. Notably, when Tacitus comes to relate the accusations against and the trials of women in this study, the descriptors evaporate. Perhaps these women are not prominent enough to merit further description. At any rate, Tacitus’ motives lay elsewhere. The stories of the trials (and the women involved) were merely a means of establishing his point that foolish things were going on in Rome, that law and justice and Roman civilization were being subverted to the twisted will of Tiberius, Claudius or Nero. Women on trial caught Tacitus’ attention repeatedly, especially during the reign of Tiberius during which more than half the trials in this study occurred (see Appendix 1). Tacitus’ goal was to highlight the scandal or to reiterate Tiberius’ failings, not to explain the legal basis or procedure in any of the cases. We may infer from Tacitus’ detailed description of the trial of Libo Drusus (AD 16) that Tacitus had access to detailed information about trials that took place at this time. Therefore his choice to exclude a similar level of detail for other trials must have been deliberate certainly his narrative flow would have been impeded dramatically by an interminable list of detailed court cases. At the same time, Tacitus was constrained by the limits of his sources, and in the case of the elder Agrippina, his muddled sources led him to errors in his own account. As a result, we can at best come to tentative conclusions about the charges, upon which statutes they were based, the trial procedures, court venue, conviction, and punishment. The tentative nature of the conclusions does not invalidate the effort to reach them. In many cases, all that survives in the historical record is a brief notice that a specific woman was in court. The charges, verdict, and penalty may be unrecorded. instances, rhetoric is relevant only insofar as there is none 11 — In these namely that these cases did not merit much interest or attention from either the author or his intended audience. However, the accumulation of such cases provided a mass of material that does have a rhetorical force. A bland notice of ‘another woman on trial for adultery’ promulgates a stereotype that is so ingrained that it does not require elaboration. This bland statement taps into a cultural awareness and shared belief about women. Obliquely reiterating this belief a number of times testifies to the depth and breadth of the stereotype more emphatically than a blazoned treatment would. The presence of a specific woman at a trial may be taken as historical fact, and sometimes that is as far as the evidence takes us. Legal sources Fifth- and sixth-century Roman legal compilations (codices Theodosianus et Justinianus) seem, at first glance, to give a comprehensive overview of every law in practice in Rome. Upon closer inspection, it becomes evident that it is not clear when particular laws were in force and to what degree the text of the law was modified for inclusion in the large 24 codex. When used with due caution, however, such juristic sources provide valuable information for the study of Julio-Claudian times. These codices were compiled by assembling praetorian edicts, rulings from jurists, imperial edicts, rescripts, senatus consulta, and comitial statutes. Contradictions were eliminated, with the most recent decision settling 25 Therefore, from what survives in the codex, it is crucial to determine when a the point. particular law began to be in force (there is, obviously, no record of old laws that were superseded). Because we know the names and dates of several important jurists from the second century AD, it is possible to argue with some confidence that some of the laws which 24 The Codex Theodosianus was published in 438, the Codex Justinianus in 534. At least this was the policy. In fact, contradictions remain, likely because of the huge volume of material and because there were several people working on the project at the same time. 25 • 12 they record were in force during the Julio-Claudian period. There is also much evidence to be gleaned from the orations of Cicero and the letters of the younger Pliny, whose writings are securely datable. Legal references in the accounts of historians can be very useful, although they frequently lack detail. The five most important jurists lived and wrote in the second and third centuries 26 Each had the ius respondendi (the right of responding) backed by imperial recognition AD. of their status. Gaius flourished in the Antonine period and was probably a teacher. 27 He published one of the most important legal treatises to have survived to our time: the Institutes, an introductory overview of Roman law for students. Papinian, Paul and Ulpian belong to the Severan period, and each held important civil service posts including that of Praetorian Prefect. 28 Paul’s Sententiae are a collection of juristic responses to hypothetical cases, useful perhaps to an advanced student of the law. 29 Modestinus, a pupil of Ulpian, was the last great jurist. Through all this period, the jurists wrote as men having authority in themselves, apart from the posts they held or the imperial favour they enjoyed. The vast majority of the material known for Roman law pertains to civil law; only one book of fifty in Justinian’s Digest is specifically devoted to criminal law. ° Because this 3 study is devoted to criminal trials, only a very small part of the corpus of Roman law will be relevant to our discussion. The laws that pertain to each case will be discussed as they arise. 26 (1997) 20. 27(1997)45. 28 Robinson (1997) 45. 29(1997)46. Dig. 48. 30 13 Standard Procedure of a Criminal Trial It is necessary to consider the standard procedure for a criminal trial so that we may more readily distinguish the atypical or missing features in the cases discussed. The procedure described is that of the quaestiones perpetuae, the jury courts presided over by a praetor and established to hear charges of a particular type (adultery, for example); the quaestiones operated under the formulary system (described below), which procedure was copied wholesale in trials held in the senate and the emperor’s personal court. ’ The system 3 of cognitio extraordinaria, also called cognitio extra ordinem, began to be used from the beginning of the empire, which process could be applied to trials held in the senate, the emperor’s private court, or courts held by the emperor’s delegates (urban prefect, praetorian prefect, provincial governors). 32 These new courts could diverge from the regulations governing the quaestiones in two ways: (1) they could add to the categories of wrongful acts that could be charged under a specific criminal law; (2) they could exercise discretion on 33 Since these seem to be the only divergences from the procedures used in the punishment. quaestiones, and legal traditionalism was (as always) a very strong force, we may reasonably conclude that the procedure for initiating and enacting a prosecution changed minimally from the quaestiones to the extra ordinem procedures in the senatorial or private imperial courts. The citizen prosecutor would first go to the magistrate who presided over the appropriate court and seek permission to bring the charge (postulare). 34 At this point, the magistrate would determine if the prosecutor was able to bring an accusation (that he was a Compare descriptions in Talbert (1984) 480—487; Greenidge (1901) 456—504; Alexander (2002) 7—8. Robinson (1997) 85, notes that the formulary system was dominant from c. 150 BC to c. AD 150 and was officially banned in AD 342. See also Gaius, Institutes 4, for procedure under the formulary system. 32 Bauman (1996) 24. Bauman(1996)25. 33 ‘ Alexander (2002) 8. 14 citizen and not under penalty of infamia) and he would accept or deny the charge. The prosecutor had to swear an oath that the prosecution was undertaken bonafide. 35 Only one accuser was allowed for a single offence, though one accuser could bring multiple charges; if there were multiple accusers and multiple offences, a preliminary hearing (divinatio) would sort out who was to be responsible for which charges. Up to this point, all proceedings would take place without requiring the presence of the accused. The formal institution of the charge (nominis or criminis delatio) had to take place before the magistrate (consul or praetor) in the presence of the defendant. 36 The magistrate conducted an interrogatio to determine the prima facie case; if he was satisfied that the case should go forward, he drew up an inscrlptio with a statement of the charge, signed by the 37 prosecutor. The charge was then formally received by the magistrate (nominis receptio) and the person accused now became technically reus. The magistrate then fixed a space of time for investigation (inquisitio), no less than ten days, and a date for trial. 38 During this interval, the accused was usually left free — especially if he were of high status — and if he chose voluntary exile or suicide at this time, the case would be closed unless the defendant faced charges of maiestas, in which case the trial would continue posthumously. On the specified date, the trial proper would begin; jurors were chosen and sworn 39 The prosecutor spoke first, then the defendant’s advocate, then written and testimonial in. evidence was adduced. 40 A brief question and answer session (altercatio) followed between Greenidge (1901) 459. Alexander (2002) 8; Greenidge (1901) 461. Greenidge (1901) 465; Dig. 48.2.3. 38 Greenidge (1901) 466. Some criminal laws had fixed the interval at thirty days; in trials of repetundae, where information had to be gathered from a province, the interval could be much longer. Typically there would be about 50 jurors; Bauman (1996) 27. Alexander (2002) 8. 40 15 ’ The jurors at last prepared to cast their ballots 4 the prosecutor and the defendant’s advocate. on the verdict; a simple majority decided the verdict. 42 The presiding magistrate pronounced the judgement. Any penalties assessed could be enforced by the coercitio of the presiding magistrate. Emperors in Court An important point should be noted here about the role of the emperor in politically sensitive trials. Since the magistrate (the emperor, consul, or praetor) who initially heard the charges had the right to nullify them on the spot, we can infer that a woman had some political support on her side when charges actually went forward at her behest. 43 This is particularly noteworthy when the emperor himself allowed politically sensitive charges to stand as contemporaries or subsequent generations might conclude that he gave positive support to the charges. At the same time, the consul or praetor may have approved charges without the knowledge of the emperor, thus suggesting other political support for the woman, or at least her goal of the moment. The emperors Augustus and Tiberius were known as conscientious judges, and Claudius may be similarly described. 44 They sat in court often and participated in the consilia of the praetor’s courts. Augustus was active in enforcing existing laws as well as creating new laws, procedures, and courts. 45 Tiberius was more conservative and did not propose new laws; his determination that existing statute be enforced led to his famous 41 42 “ Greenidge (1901) 479. Greenidge (1901) 497. Talbert (1984) 481. Suet. Claud. 14, also 12, 15, 23; Dio 60.16.3. Bauman (1996) 24; Berger (1953) attributes 17 new or revised laws to Augustus. 16 comment exercendas leges esse which resulted in an explosion of trials during his reign. 46 However, Tacitus also acknowledged that Tiberius’ presence in the courts prevented 47 corruption. Claudius’ reputation was more ambiguous; his forensic peculiarities were widely known. 48 When presiding over trials, he did not always follow the letter of the law, but used his own judgement by increasing or decreasing penalties according to the circumstances of the individual case. 49 This extensive involvement in the law courts clearly reveals that Augustus, Tiberius, and Claudius were well-informed in the law, both statute and procedure. Caligula and Nero, on the other hand, earned less favourable reputations in the courts. Caligula’s presence there resulted in a number of macabre innovations in punishments. ° A 5 more serious criticism is that Caligula did not observe the basic ethics of personal cognitio when he failed to judge cases in public or to confine himself to cases in which he had no personal interest. ’ However, to his credit, Caligula suspended the rnaiestas laws for the first 5 two years of his reign. 52 Nero was known to have delegated much of his work-load onto others, but there were always some matters that required the personal participation of the 53 Under the influence of Seneca, Nero learned about dementia, and maintained emperor. Claudius’ ban on the lex maiestatis for the first eight years of his reign. 54 Despite these early influences, however, he was also sometimes unpredictable and cruel; anyone who was ordered to commit suicide, for example, was given no more than an hour before ‘doctors’ or 46 Tac. Ann. 1.72.3. Tac. Ann. 1.75.1. 48 Bauman (1996) 75, with reference to Claudius’ trial in the Apocolocyntosis; Suet. Claud. 15 notes that he was sometimes wise and prudent in his judicial decisions, other times thoughtless and hasty. Suet. Claud. 14. ° Suet. Cal. 27. 51 Bauman (1996) 65. 52 Bauman (1974) 204—2 10. Holland (2000) 83. Bauman (1996) 77, 78, 83; Suet. Nero 15. ‘ 17 soldiers were sent to complete the job. 55 Although less well-reputed, both Caligula and Nero were well-informed in the law. Suet. Nero 37.2; Tac. Ann. 14.64. 18 Chapter 1, part 2 Precedents Without Trials: the Two Julias Julias, fihiam et neptem, omnibus probris contaminatas relegavit; aliquanto autem patientius mortem quam dedecora suorum tulit. ... He relegated the Julias, his daughter and granddaughter, polluted by every kind of shame; He bore the death of his dear ones rather more patiently than their 56 disgrace. ... This study is devoted to women in criminal trials, and the political and legal context of their trials, but in the minds of both accusers and defendants were precedents too important to ignore: the fates of the two Julias. Although neither faced formal criminal charges, trials, or convictions, their fates are important to the investigation of women’s trials in subsequent decades. There is a significant body of modern scholarship devoted to these two women, yet proper understanding is inhibited by the dearth of actual evidence in the ancient sources. This discussion does not seek to treat the lives or actions of these two women exhaustively, but rather to focus on their ends and the procedures by which they were judged and exiled. Lack of information presents a major challenge to any discussion about the fall of either Julia, and in this one more than most because the legal background to their exiles was not the focus of any ancient historian. The autumn of 2 BC saw the discovery of Julia’s many alleged adulteries and her subsequent banishment. The facts known about the events are relatively few. Augustus discovered Julia’s adulteries and reacted with fury, even refusing to see visitors for some 57 He notified the senate about her by a letter that was read out by a quaestor. When time. Suet. Aug. 65.2. All translations presented in this thesis are my own except those from Justinian’s Digest, which are, with occasional minor emendations, taken from Watson’s (1985) translation. Suet. Aug. 65.2. 19 Julia’s freedwoman Phoebe hanged herself, he is reported to have expressed that he would 58 He sent a notice of divorce to Tiberius at Rhodes, who in rather have been Phoebe’s father. turn petitioned his father-in-law to relent toward his daughter and allow her to keep gifts given to her — 59 Augustus allowed his relegated presumably a reference to her dowry. daughter to consume no wine at all, nor any other delicacy, and severely restricted her visitors. After five years and a number of public demonstrations on her behalf, she was moved from the island of Pandateria to a slightly more lenient imprisonment at Regium on the mainland where she stayed until her death in 1 460 The names of five adulterers were recorded by Velleius, the only contemporary source: Julius Antonius, Quinctius Crispinus, Appius Claudius, Sempronius Gracchus, and 61 Scipio, in addition to other less prominent men of both orders. He reports that they “paid the penalty that men would pay for violating any man’s wife, although they had violated Caesar’s daughter and Tiberius Nero’s wife;” quas cuiuslibet uxore violata poenas 62 pependissent, pependere, cum Caesaris fihiam et Neronis violassent coniugem. Julius Antonius was the son of M. Antonius and Fulvia and was married to Augustus’ niece, 63 We are Marcella; he held the consulship in 10 BC and was proconsular governor of Asia. meant to think that he was a political threat, as Seneca quips: iterum timenda cum Antonio 64 No trial is mulier; “once again [there was] the threat of a woman allied with an Antonius.” described or even mentioned, but Julius died as a result of the events of 2 BC, either by 58 Suet.Aug. 65.2; Dio 55.10.16. Suet. Tib. 11.4. ° Suet. Aug. 65.3; Tib. 50; Tac. Ann. 1.53.1. Veil. Pat. 2.100; although he was not usually interested in political events, Velieius recorded a brief account of Julia’s fail perhaps because the episode was important to understanding Tiberius’ life. Macrobius Sat. 1.11.7 records that a certain Demosthenes, about whom nothing else is known, was another of Julia’s adulterers. 62 Veil. Pat. 2.100; see also Syme (1978) 56. 63 Veil. Pat. 2.100; PIR 2 A 800. 64 Sen. Vit. 4.6, which is clearly a reference to the threat of Cleopatra when she was allied with Julius’ father M. Antonius during the triumviral period. — 20 suicide (according to Velleius) or execution (according to Tacitus and Dio). 65 Sempronius Gracchus was a pervicax adulter, “persistent adulterer,” also known as a writer of tragedies and of a contumacious letter to Tiberius co-signed by Julia; he is not known to have held high magisterial office. 66 He was banished to the island Cercina where he lived for fourteen years until his death. 67 Quinctius Crispinus had been consul in 9 BC; Velleius provides the colourful description of him that he hid his extraordinary depravity behind a stem brow (singularem nequitiam supercilio truci protegens). 68 Of the remaining adulterers, Appius Claudius and Scipio, nothing is known other than their banishment. While the sources are clear that adultery brought about Julia’s disgrace and downfall, none reveal any details about the legal means of her banishment. Augustus is known to have sent a letter to the senate, then Julia is described as imprisoned at Pandateria and the men named as her lovers were similarly punished. What happened in between? Although there was a quaestio de adulteriis — set up by Augustus himself — it seems clear that she was not prosecuted by a formal trial, either in the quaestio or in the senate. 69 First, an argument ex silentio: there is no record in the sources of a trial. Surely a sensational trial that would have generated the ancient equivalent of a media circus could not have been overlooked and unrecorded by every writer of the time, including Velleius whose eye-witness record survives. Secondly, the sources more than once slip into simple third-person-singular verbs 65 Pat. 2.100.4; Tac. Ann. 4.44.3: JulIo Antonio punito morte; Dio 55.10.15. Vell 66 Tac. Ann. 1.53.3—6; PIR’ S 265; Gracchus’ adultery with Julia began when she was still married to Agrippa, who had died a decade earlier. He was a descendant of the famous tribunes Gracchi (133 and 123 BC), Syme (1986) 91. 67 Tac. Ann. 1.53.4; after fourteen years of exile, soldiers came to kill him sent either by Tiberius or L. Asprenas, proconsul of Africa. 68 Vell. Pat. 2.100.5; EJ p. 37. Fantham (2006) 86. Scholarly consensus has not been attained on the subject of whether there were actually 69 trials or not. The underlying problem is how to define a trial was an extra ordinem procedure still a trial? Was a domestic tribunal still a trial? If we deny all legal proceedings, then we are forced to conclude that the banishment of Julia and her lovers and the death of Antonius took place completely outside the law. This conclusion is implausible in the highest degree. Bauman (1992) 108 and Syme (1974) 928 both conclude that there were trials, but do not engage the question of venue or procedure. ... — — 21 suggesting that Augustus had been directly in charge of the punishments assessed; Seneca is most blunt: divus Augustus fihiam ° 7 daughter.” ... relegavit; “The deified Augustus relegated his Third, a full senatorial trial would have dramatically heightened the public exposure and attention paid to Julia, and by extension, to her father. Augustus’ desire to minimize the attention drawn by his daughter’s disgrace is revealed by his later comment that he regretted that he had not suppressed the scandal and concealed the events in silence. ’ In 7 the absence of a formal senatorial trial, there must have been another means by which Julia and her adulterers were condemned. Two possibilities remain: first, that Julia was judged by a cognitio extra ordinem procedure in a court presided over by Augustus as the emperor; or second, that Julia was judged by a domestic tribunal presided over by Augustus as pater 72 familias. Trials by cognitio extra ordinem or by domestic tribunal are almost equally plausible and the fragmentary evidence gives no substantive reason to prefer one over the 73 other. Given Julia’s politically sensitive position and the high rank of her accused lovers, the possibility of conspiracy must be considered. The assessed penalties of exile would have been appropriate to either adultery or maiestas charges; only the possible execution of lullus Antonius would supercede the statutory penalty for adultery. Seneca writes that Julia and her senatorial lovers were adulterio velut sacramento adacti; “bound by adultery as if by an 74 The word sacramentum was cleverly chosen; it is also used to describe a soldier’s oath.” 70 Sen. Ben. 6.32; see also Suet. Aug. 64: lulias ... relegavit; Tac. Ann. 4.71 (on the younger Julia): Augustus convictam adulterii damnavit. ‘ Sen. Ben. 6.32. 72 more on domestic tribunals, see Pomponia Graecina, no. 48. ‘ Bauman (1967) 198—245 discusses in detail the legal mechanisms that underlie this situation; see esp. 203—204: some authorities believe that Julia and her lovers were punished in Augustus’ domestic tribunal (Hausgericht); 231—233: Bauman argues that they were prosecuted in a criminal court over which the emperor himself presided (Kaisergericht). “ Sen. Vit. 4.6. 22 oath to his commander. Pliny goes even farther, writing of consilia parricidae pa/am facta; “open plans made for parricide.” 75 No other historian until Dio resurrects these ideas, but he limits the blame to Julius Antonius, saying: thç Kctt ti Tfl jiovctpb toto irpátç, &7tOcLvE, “he was put to death on the grounds that he had done this [i.e. adultery with Julia] to obtain the monarchy.” 76 Pliny’s report of open plans for parricide “might be dismissed as a scandalous and trivial notion.” 77 Against the hypothesis of a conspiracy stands the silence of Tacitus and Suetonius; especially revealing is the fact that the names of Julius Antonius or any other member of this group were not recorded in Suetonius’ list of those who conspired against Augustus. 78 There is no evidence of the customary senatusconsultum decreeing a thanksgiving when a conspiracy had been suppressed. 79 Furthermore, it is highly implausible that Tiberius, languishing in his Rhodian exile, would have written letters to Augustus in support of leniency for a treasonous wife. Not only would it have been illogical to promote the safety of Julia if she was guilty of conspiracy, but it would also demonstrate disloyalty on Tiberius’ part. Perhaps most insurmountable: why would Julia enter into a conspiracy to seize power at the expense of her own sons? ° 8 An oblique comment of Tacitus’ may illuminate. nam culpam inter viros ac feminas vulgatam gravi nomine laesarum religionum ac violatae maiestatis appellando clementiam maiorum suasque ipse leges egrediebatur. By calling a sin common among men and women by the solemn name of injured religious principle and violated maiestas, he superceded the clemency of our ancestors and his own laws. ’ 8 Pliny HN7.149. Dio 55.10.15. Syme (1986) 91; similarly Fantham (2006) 87. Suet.Aug. 65.2; 19.1. 78 Bauman (1967) 201. Fth (2006) 87. 80 81 Tac. Ann. 3.24.2. 23 The common crime of adultery was now being called impietas et maiestas and Augustus exceeded the scope of his own adultery laws by introducing allegations of maiestas. 82 Since the idea of a treasonous conspiracy has been considered and dismissed, the concept of maiestas relevant in this instance must be of somewhat different definition; this was the newly developing maiestas of the emperor himself. 83 The much-heralded grant of the title Pater Patriae to Augustus in 2 BC gave full official recognition to the personal maiestas that Augustus had been assiduously building for more than thirty years. In light of this new title, he could not ignore Julia’s scandalous conduct, and since her paramours had failed to uphold their sworn duty of respect towards a member of the imperial house, they had injured the sacrosanctitas of Augustus and now also his position as the universal pater. 84 Julia died in exile at Regium in 14, within a few months of her former husband’s ascent to the imperial throne. Tiberius had even intensified the conditions of her imprisonment in those last months, forbidding her to leave her house or enjoy human contact. He discontinued the allowance and annual revenue that Augustus had provided for her, using the civil law as a pretext, because there was no provision for it in his will. 85 Tiberius allegedly calculated that her death would pass unnoticed because she had been in exile for so 86 Nor was there a resting place in Augustus’ mausoleum for her; by the terms of her long. father’s will, she was denied burial there. 87 The political futures of Julia’s two elder sons Gaius and Lucius were not dimmed because of their mother’s disgrace. At the time of her banishment, they were just entering 82 Bauman (1967) 202; see also Syme (1974) 928. Bauman (1967) 239. Bauman (1967) 240—241, noting the empire-wide oaths of loyalty to Augustus that was sworn by all citizens 84 including Julia’s paramours. 85 Suet. Tib. 50. 86 Tac. Ann. 1.53.2. Suet.Aug. 101. 87 — 24 adulthood, having been groomed for imperial succession since Augustus adopted them fifteen years previously. Augustus himself, as Julia’s outraged father and accuser (and possibly her judge), would have had no desire to harm Julia’s sons, who were his own adopted sons and chosen successors. Indeed, within two years Gaius was consul and then given proconsular authority and assigned to lead an expedition to the eastern provinces; his brother Lucius was consul-designate for the year 88 Aside from Julia herself, the parties who suffered the most harm were her lovers. Of the six names known, five were sent into exile and the sixth, lullus Antonius, met his death, either by his own hand or another’s. Each member of the group was a politician in some degree, and exile is frequently a death sentence to a political career. None of these men are known to have resumed their political careers after their exile in 2 BC. The younger Julia’s demise came about in much the same way as her mother’s and was inevitably linked in historical accounts, though the sources are even more fragmentary and cursory in her case. She, too, was accused of adultery and was banished to Trimerus, where she lived until her death in 29, apparently supported all the while by her stepgrandmother Livia. 89 Julia’s husband L. Aemilius Paullus was condemned at the same time as his wife, apparently on charges of conspiracy. He is included in Suetonius’ list of conspirators against Augustus in conjunction with Plautius Rufus. ° Nothing more is known 9 about their conspiracy. Julia bore a child while in exile and Augustus refused permission for 88 EJ p. 38; Suet. Aug. 26.2; Dio 55.10.18; 55.lOa.9 Tac. Ann. 4.71.4. Although the scholiast on Juvenal 6.158 alleges that Julia was relegated, then allowed to return, and finally sentenced to perpetual exile, this conflicts with the information given by the more reliable Suet. Claud. 26.1: Claudius, admodum adulescens, had to forfeit his betrothed Aemilia Lepida because her parents (Julia and Aemilius Paullus) had offended Augustus; he reached the age of seventeen on 1 August 8. ° Suet. Aug. 19.1: exin Plauti Rufi Lucique Pauli progeneri sui, “then [the conspiracy] of Plautius Rufhs and Lucius Paullus, his own granddaughter’s husband.” 89 25 the child to be acknowledged or raised. ’ There is no way to know if the child had been 9 fathered by a lover or by her husband, a factor that may have contributed to its rejection. Only one lover is named, D. Junius Silanus; he felt the sting of Augustus’ renuntiatio amicitiae, interpreted it prudently, and withdrew into voluntary exile. 92 There was clearly, then, no trial for him. His powerful brother Marcus Silanus waited until Augustus was dead before requesting clemency for his brother. After the senate gave its approval for Silanus’ return from exile, Tiberius replied carefully that his return was pennissable because he had not been banished by a law or a decree of the senate but that he had not received the emperor’s forgiveness. 93 Silanus then disappears from the historical record. The poet Ovid seems to have been somehow involved and was also relegated in the same year, but was allowed to keep all his property. 94 The reasons are obscure, and Ovid’s own hints provide only minimal help. He speaks of duo crimina, carmen et error, “two crimes, a poem and a mistake.” 95 The problematic poem is generally agreed to be the Ars Amatoria, but the eight-year gap between its publication and its author’s punishment remains inexplicable. Ovid is at pains to avoid specificity in referring to the error because discussion will reopen the initial wound inflicted on Augustus, but he insists that it had nothing to do with external treason or conspiracy, nor verbal injury, nor indeed with the contravention of any law. 96 He was punished without trial: nec mea decreto damnastifacta senatus, nec mea selecto iudice iussafuga est, “my actions have not been condemned by a decree of the senate, nor is my exile by the order of a selected judge.” 97 Whatever his error, it was too far 91 Suet.Aug. 65.4. 92 Ann. 3.24.5; PIR Tac 2 1 826. Tac. Ann. 3.24.5. Ovid Trist. 2.137—138. Ovid Trist. 2.207. 96 Ovid Trist. 2.51—52; 2.208—210; 3.5.44—48; Pont. 2.9.71. Ovid Trist. 2.131—132. 26 removed to be tried as maiestas, even the newly-conceived personal maiestas of Augustus, so it was dealt with extra-judicially. After Julia died in 29, her remains were refused burial in Augustus’ mausoleum in 98 Her only surviving progeny was a daughter, Aemilia accordance with the terms of his will. Lepida, who eventually married M. Junius Silanus Torquatus, with whom she had several children: M. Silanus, D. Silanus Torquatus, L. Silanus, Junia Lepida, and Junia Calvina. 99 This family suffered greatly from the prosecutorial activities of the younger Agrippina)°° The lives and fates of these two women must have been present in the background of elite Roman thinking whenever the topic of troublesome Imperial women came up — and maybe even whenever the topic of women and adultery arose. Augustus had made every effort to raise his daughter and grandchildren according to the old-fashioned values reflected in his own moral legislation. His own family, however, “far from the model of the new morality, was a hotbed of all the intrigue, ambition, corruption, and sexuality that the new ’ The Julias’ spectacular failure to maintain the moral 0 age was supposed to stamp out.” standards set out by Augustus must have sent a powerful message to contemporaries as well as to subsequent generations. They must also be in the background of our thinking as we proceed forward to examine the other women who were involved in criminal trials in Julio Claudian times. If the ‘trials’ of the two Julias elude the understanding of modem investigators, there is no reason to believe that the contemporary Romans fared much better. The accounts written by Suetonius and Tacitus leave major gaps between the discovery of the Julias’ 98 101. Suet.Aug. Silanus (husband): PIR 2 1 839; Marcus (son): PIR 2 1 833; Decimus (son): PIR 2 I 837; Lucius (son) PIR 2 I 829; Lepida (daughter), no. 31; Calvina (daughter), no. 30. See chapter 3, Womenpro accusatoribus. ‘°‘ Wallace-Hadrill (1993) 75. 27 disgrace and their penalties. On the topic of the elder Julia’s disgrace, Syme uncharacteristically throws up his hands, writing that, “for the historian, the fragmentary nature of the record is an insuperable bar.”° 2 Even the contemporary Velleius did not present a full narrative of the elder Julia’s demise, and the most deliberately obfuscatory bit of writing in all antiquity — Ovid’s carmen et error — cannot have been much less opaque to an ancient audience. Nonetheless, the very mystery of the situation would have guaranteed curiosity and interest — and gossip — for years afterward. During the Julio-Claudian years, many other women would face indictments for adultery, maiestas, or other crimes, and knew that serious punishment was a real possibility. After all, if it could happen to the emperor’s daughter, it could happen to anyone. 102 Syme (1974) 930. 28 CHAPTER 2 Women as Defendants Between the reigns of Augustus and Nero there is evidence of more than forty women (elite and non-elite) appearing in Rome as defendants on criminal charges.’° 3 This chapter will address the cases in which charges were brought against women in three broad categories: adultery charges, treason charges, and others. The first category of charges to be considered is adultery; our evidence is comprised of sixteen cases in total. Interestingly, none of the cases reported in our sources actually took place in the quaestio de adulteriis, the standing court with jurisdiction over adultery trials: they were all held in the senate or in apparent cognitio extraordinem procedures.’° 4 The second category of charges is treason, comprised of twenty-four cases. Women were seen as independently capable of being threats to the imperial order — a side effect of the position and power of the domus Augusta. Naturally then, women related to the emperor were the greatest threats, and the evidence shows that they were repeatedly suspected, charged, and convicted. The first two categories of crimes are particularly important in the context of the Julio-Claudian era because Augustus introduced or redefined important criminal laws on adultery and treason. In the third category are seventeen cases in which other charges against women run the gamut of the legal system from fraud to poisoning to magic.’° 5 These kinds of crimes have no special 103 There were many more women who appeared in court on civil matters, but those women will receive no attention here as the present study is confined to criminal cases only. For more information on women in civil court matters, see especially Marshall (1989); also Frier and McGimi (2004), Treggiari (1991), and Gardner (1986). 104 Dio 54.30.4 and possibly Tac. Ann. 3.38 refer to cases that were tried in a quaestio, but the information about the cases is extremely slender. 105 In five of the cases in this category, however, the charges are unknown. 29 significance when placed in the early imperial period but merely show a certain level of criminal activity in the female population. In several instances, female defendants were charged with multiple crimes, as in the case against Aemelia Lepida, who was charged with adultery, poisoning, fraud, and treason. For those few cases where a woman was accused of more than one type of crime, her case will be discussed thoroughly at its first appearance, then revisited where relevant in subsequent categories. Some modest repetition is unavoidable. Although this study begins in the Augustan age, no recorded cases involving female defendants took place during the reign of Augustus himself, even though he was conspicuously active in the law courts.’ 06 No significance should be attributed to this: the lack of evidence is a product of our sources, since we know of female defendants prior to the 7 The majority of information about women on trial in the time of Augustus and afterwards.’° Julio-Claudian era is found in Tacitus, whose Annales began a detailed account with the reign of Tiberius. It is worth reiterating that with the onset of imperial rule, the focus of the historical sources shifted toward the domus Augusta and its elite social circle. Tacitus reports a useful amount of information about imperial and elite women, even if only the scandalous and sensational morsels. One final legal facet requires comment: women’s tutors are not mentioned in any of the literary and even legal sources when women appear as defendants. The tutor mulieris had no power over the person or property of a woman; she only needed his auctoritas for example, Suet. Aug. 45, 55—56. Furthermore, Augustus was in no way hesitant to enforce these newlydefined laws. 107 See Livy 39.14.6—10, 17.1, 18—19 on the Bacchanalian affair and the poisoning trials; also Val. Max. 8.3; later female defendants are seen, for example, in Pliny Ep. 3.11,3.16,4.11,4.17, 6.31, 7.19. 30 certain legal acts which involved her property such as selling land or making a will. 108 Their absence indicates that, in practice, tutors were not expected to act to protect their wards, merely to guard their property from unlawful sale or disposal — even in cases where a woman’s property is at stake or is confiscated, we hear nothing of her tutor’s involvement. Tutors were not required to administer their ward’s property, but one would expect at least the agnatic tutors under Augustus and Tiberius to take some active interest in the disposition of the ward’s wealth. If she were convicted, a substantial portion of her wealth could be 09 lost.’ 108 Crook (1967) 113—115; Shultz (1951) 188; for a more general discussion of tutela, see Dixon (1984) 343—371. (2001) 75, 81. 31 Chapter 2, part 1 Women as defendants on charges of adultery This section will focus around a few key questions generally asked of the sixteen cases of women charged with adultery in the Julio-Claudian era. What do we know about individual cases? Why were women charged with adultery? Were any charges politically motivated, and can we tell who was the intended target of harm? Before we turn to engage those questions directly, a brief review of the images presented by the poets and orators will give us a better context in which to examine the images presented by the historians and legal sources. Survey of literary sources on adultery Raditsa and Richlin remind us that the topic of adultery is diverse and difficult to understand fully since the different types of sources present distinct aspects of the The ancient literary sources pervasively suggest that sexual freedom among Rome’s elite was common and at least somewhat acceptable. Raditsa points out that the attempts to legislate morality undermine the ability of people to trust in their own moral inclinations — obviously if laws are needed, people have been unable to self-determine appropriate morality.” Different literary genres such as moral tales (exempla), rhetorical exercises, and poetry provide different aspects of Roman thinking on the topic of adultery. “°Richlin (1981) 379—404; Raditsa (1980) 278—339. Raditsa (1980) 281; Galinski (1996) 129 notes that true Golden Age moral conduct happened of its own accord and needed no legislative remedy: Sen. Ep. 90; Posidonius frag. 60; Hor. Carm. 3.24.35—36. 32 Moral tales (exempla) reflect idealized behaviour it to be — — the truth as the authors would like like that of Lucretia and Verginia going to great lengths to defend the honour of their chastity.” 2 Rhetorical exercises, though not real events, reflect the results of adulterous activities as debated in mock trials. These sometimes contained unique or difficult circumstances in order to make the cases more challenging for the The rhetorical exercises of the elder Seneca, Quintilian, and Calpurnius Flaccus all address the topic of adultery and sex crimes’ These examples do not document actual cases, but they offer a reflection of the awareness and attitude of their authors and their times. Adultery was a constant concem and it could cause significant disruption in the lives of those people involved. Poetic sources like Juvenal and Ovid address the topic of adultery rather differently than do the historians or the moralists. Of course, they are not intending to record actual events for the edification of posterity, but the antics they describe them — are revealing. — and their attitudes toward For Ovid, despite his stem warning that men should focus their attentions on ‘proper targets,’ the whole topic of sex is a lark and the whole female sex is fair game; the more a man could accomplish without getting caught, the Juvenal’s poetry also suggests that adultery was common, but sometimes it even provides a solution to domestic woes. Satire 9.75—100 reports that the adulterer Naevolus saved the marriage of the homosexual husband Virro by satisfying his young wife in bed, and by siring two children, 112 Val. Max. 6.1.1—2; Livy 1.58; 3.44; Richlm (1981) 389. For a fuller discussion of the context, see Dixon (2001) ch. 4. “ Richlin (1981) 390. “ Seneca, Contr. dealing with adultery: 1.3,4, 7; 2.1, 7; 4.7; 6.6, 8; 7.5; 8.3; 9.1; dealing with rape: 1.5; 2.3; 3.5; 4.3; 7.6,8; 8.6; Quintilian,Decl. 244, 249, 273, 275, 277, 279, 284, 286, 291, 310, 335, 347, 357, 379; Calpurnius Flaccus: 2, 11, 17, 23, 31, 40, 48, 49. I IS Ovid, Ars Am. 1.33; his comment about ‘proper targets’ and moral propriety largely reflects his concern about offending Augustus. 33 thus freeing the husband from the penalties of the lex Pappia Poppaea.” 6 Juvenal’s biting satire reveals an awareness and concern about the terms of the laws; people were actually worried about meeting the requirements of the lex. In Juvenal’s satire, then, the punishments of the laws seemed so harsh that he imagined that people went so far as to commit adultery in order to appear to have complied, even when they had not. These various types of sources suggest that adultery was a common concern and possibly a common practice. When looking at the known cases of women charged with adultery, therefore, one must bear in mind that they must represent a tiny fraction of the actual instances of adultery. The relative infrequency of cases reported in historical sources, particularly in Tacitus’ Annals, therefore, must indicate one of two things. First, the majority of adulterous relationships did not result in criminal trials. Garnsey suggests that probably only those offenders who caught the eye were punished: those whose immorality was conspicuous because of their distinguished birth and ancestry or those who openly advertised their dissolute lives.” 7 This theory works well enough when applied to the most elite segment of Roman society, but we have limited information about the caseload of the quaestio de adulteriis which must have dealt with the majority of adultery cases. 118 Secondly, the majority of cases were not interesting enough for Tacitus to include in his history. A certain level of sensationalism and moral outrage is inherent in his writing, as is his focus on the Roman elite. Tacitus’ attention was particularly caught by adultery, which he presents as a sign of the moral degeneracy of the times. 116 The lex Pappia Poppaea included a series of penalties for childlessness including restrictions on the ability to make and accept testamentary bequests; rewards for a prolific mother included freedom from tutela; Csillag (1976) 146—174. “ Gamsey (1970) 24; see, for example, Tac. Ann. 2.85; Suet. Tib. 35. 118 Bauman (1968); Garnsey (1967). 34 Adultery legislation — old and new law Let us now turn our attention to juristic sources and works of historians on the topic of adultery and relevant laws. Considerable information is extant on the topic of adultery legislation and has been analyzed at length by numerous scholars.” 9 This section is meant to provide a brief overview of the legislation and legal realities. The oldest legal remedies for adultery involve a woman being judged by a family consilium. Dionysius of Halicarnassus records that, in a ‘law’ handed down by Romulus, an adulterous woman should be judged by her relations together with her husband.’ ° Livy 2 reveals that women could be judged by family consilium on other charges as well.’ ’ 2 Suetonius notes that Tiberius revived the ancient custom that matrons of ill-repute be punished according to a decision of a family council, so long as a public prosecutor had not 22 Adultery was regarded as a moral transgression and was punished within the intervened.’ family. Their decision would be binding; no evidence suggests that a family consilium was overturned in another court. The implementation in 18 BC of the lex Julia de adulteriis making adultery illegal and punishable in open court was highly significant. This law applied only to free citizens who had committed adultery or stuprum with another free citizen.’ 23 This law had several components. The husband of an adulterous wife was legally bound to divorce her even if he did not wish to prosecute her or he could be charged with lenocinium. After the sixty days “ Some recent works are: Rizzelli (1997); des Bouvrie (1984); Galinsky (1981); Raditsa (1980); Csillag (1976); Daube (1972); Gamsey (1970). 120 Dion. Hal. 2.25.6; cf. Plut. Ram. 22.3; see also Treggiari (1991) 264—270. 121 Livy 39.18.6, in his long presentation of the Bacchanalian scandal of 186 BC that allegedly included drunken orgies, says that women were judged by the consuls but turned over to their families for punishment; 48 (epitome), women accused of murdering their husbands were put to death by a decree of their own kinsmen (c. 150 BC). 122 Suet. Tib. 35.1; there is no indication as to how many cases would have been settled by this means. 123 Dig. 48.5.6 (Papinian): Inter liberas tantumpersonas adulterium stuprumvepassas lex Julia locum habet. “The lex Julia applies only between free persons who have suffered adultery or stup rum.” 35 granted to the husband or father for bringing the accusation, the field was open to any third party who wished to file the charges (accusator extraneus). The successful third-party prosecutor was the happy new owner of a substantial portion of the convicted person’s property, thus making such prosecutions attractive to delatores; the remainder went to the imperial treasury. 124 The lex Julia established a compulsory form of repudium, either oral or written, with seven witnesses required in order to provide objective proof that divorce had taken place. 125 Adultery is notoriously difficult to prove at any time and was particularly so in Roman law since it required evidence of the exact date and place of commission: domo illius, mense jib, “in that house, in that month.” 26 In order to have enough evidence to prosecute adulterers effectively, Augustus allowed slaves’ testimony to be used against their master or mistress in cases of adultery. 127 Slaves were everywhere, and a woman’s slaves knew things her husband never could. Augustus set up a quaestio de adulteriis in order to deal with the anticipated volume of cases generated by the new adultery laws and imposed a five-year statute of limitations for bringing charges. There is remarkably little evidence about the activities, caseload, and reputation of this quaestio.’ 28 There are indications that it survived down to the Severan age, 124 Rutledge (2001) 60—65. Dig. 24.2.9 (Paul); and 184.108.40.206 (Ulpian), which attributes a regularized procedure for divorce to the lex Julia; Gardner (1986) 84—87 comments that the set procedure would only apply in circumstances when it might be necessary to prove divorce had occurred, as in cases of adultery. See also Dig. 24.1.35 (Ulpian) and 48.5.44 (Gaius); Treggiari (1991a) 37; Corbett (1930) 239. 126 Dig. 48.2.3 (Paul). 127 Dig. 48.18.5 (Marcian) and 48.18.6 (Papinian). At least two fhrther edicts are attributed explicitly to the deified Augustus and so can be assumed in operation during the entire time period of this study: Dig. 48.18.1 (Ulpian) and 48.18.8 (Paul). Slaves’ testimony was also allowed against their master/mistress in cases of treason; more on that in the next chapter. See also ch. 5 on witnesses. 128 Dio notes that there was a 3000 case backlog of adultery cases in the year of his consulship (76.16.4). The date of Dio’s first consulship is disputed: Bauman (1968) 91 suggests AD 211; Liebenam (1909) 64 suggests before 211; Degrassi (1952) 56 suggests 200 or later; Schwartz, RE 3.1684, suggests before the death of Severus. See Bauman (1968) 88—91 on the workload and survival of the quaestio. 125 36 129 Bauman argues that the caseload was so heavy already in but other information is scarce. the time of Augustus that multiple sessions were operating at the same 30 The general pattern is that trials involving more plebian sorts were held in the quaestio. Trials involving elite defendants were held in the senate; these are the trials central to the present study.’ ’ 3 Under the new adultery laws, punishment for a convicted woman was confiscation of half her property and one third of her dowry, and relegatio (exile to an island); a convicted man lost half of his property and was exiled to a different island than his paramour.’ 32 In actual practice, the penalties for adultery vary somewhat from banishment beyond the 2OO milestone (Appuleia Varilla) to exilium, a harsher sentence that involved greater loss of property and had an impact on citizenship status (Aquilia and Vistilia).’ 33 In addition to the principal penalties, adultery entailed several other consequences; in essence a form of infamia was incuned: a woman convicted of adultery was subject to restrictions on subsequent maniage;’ 34 those guilty of adultery could not give evidence as witnesses. 135 129 Garnsey (1967) 24; Bauman (1968) 68—93. Bauman (1968) 78—85 considers the use of the Forum Augusti and the creation of the fourth decuria in the time of Augustus as means of handling the increased caseload. 131 Gamsey (1970) 21—24; Talbert (1984) ch. 16, esp. 467—470. The only references to adultery trials in the quaestio de adulteriis are Dio 54.30.4 and possibly Tac. Ann. 3.38. 132 Paul Sent. 2.26.14. Csillag (1976) 195—199; Bauman (1996) 32—34; see Bauman (1992) 244 n.17 for full references. By the second century AD, the punishment of relegatio and partial confiscation probably applied only to elite offenders (honestiores) and people of humbler station (humiliores) were punished corporally; Garnsey (1970) 103—152, especially at 103 n. 2, 111 n. 3, 136, and 152. It is possible that relegatio was not part of the original lex, but was applied on a case-by-case basis, Kunkel, RE 24.720 if. ‘Quaestio’ 770; some support for this view is found in Tac. Ann. 3.24.3 and Suet. Aug. 34.1. Equally strong, however is the argument that the statutory penalty of relegatio was mitigated in those cases by the emperor’s authority. Sherwin-White (1966) 394 suggests that relegatio was a temporary rather than permanent punishment. McGinn (1992) 286; Grasmück (1978) 127—135. Dig. 220.127.116.11 (Ulpian); 34.9.13 (Papinian); 23.2.26 (Modestinus): women accused of adultery cannot marry during the lifetime of their husbands, even before conviction; 23.2.47 (Paul): a senator’s daughter who has been convicted of a criminal offense can safely marry a freedman, because a woman who has behaved so disgracefully has no honour left. Dig. 22.5.18; 22.5.13—14 (Papinian). 130 37 Information about the laws themselves can be found in the collected works of the jurists and in the Digest. There survives no official court document listing trials and verdicts, so all evidence must be gleaned from historical narratives. Other forms of sexual misconduct under the lex Julia Illicit sex that was not adultery was liable to punishment under the lex Julia. The definition of stuprum can vary from “immorality” to “illicit sex or fornication” to “rape.” 36 In his study of Latin sexual vocabulary, Adams presents a definition of stuprum that encompasses sexual disgrace or an illicit sexual act. 137 Papinian wrote: Lex [Julia] stuprum et adulterium promiscue et KcL’ccLXprlotilcthtEpov appellat. Sed proprie adulterium in nupta committitur... stuprum vero in virginem viduamve committitur. The [Julian] law refers to stuprum and adultery indiscriminately and with rather a misuse of terms. But properly speaking, adultery is committed with a married woman... stuprum is committed against a virgin or a widow. 138 Appuleia Varilla, Claudia Pulchra, and possibly Julia Livilla were all unmarried at the times of their trials, confirming that the distinction between adultery and stuprum was indeed quite fluid. The family status of these women — very close to the imperial family — left them open to spurious charges that may have had political implications. There is a certain outrageous nature to this: why is it forbidden for respectable widows to conduct a discreet sexual liaison without being punished under the adultery laws? The immediate answer is that the women who were charged were not discreet. The other possibility is that if adultery was indeed being used as a political weapon, then any sexual activity could be used against a woman. 136 Oxford Latin Dictionary, s.v. stuprum; see also Gardner (1986) 121—125; for discussion of the law pertaining to rape as a form of stupruin, see Botta (2004); on wine-drinking and revelry leading to stuprum, see Bettini (1995). 137 Adams (1982) 200—201. Dig. 3 ‘ 8 18.104.22.168 (Papinian); this opinion is reiterated at 22.214.171.124 (Modestinus). 38 This strongly suggests that enemies were watching for sexual mis-steps and waiting to pounce with a ‘politically-based’ accusation of adultery. Considered along with the adultery indictments are three cases where women were charged with incest, another form of sexual misconduct.’ 39 Incest was contrary to divine law 40 and thus fell under the ius gentium, the body of principles common to all mankind.’ Severan jurists suggest, moreover, that incest be construed as a dual crime: in insulam deportandus est... quia duplex crimen est et incestum, quia cognatam violavit contra fas, et adulterium vel stuprum adiungit. He should be deported to an island because there is a double crime, both incest because he violated a female relative contrary to what is lawful, and he has added adultery or stuprum.’ ’ 4 ... A charge of incest could, therefore, be punished under the Julian adultery laws.’ 42 The punishment of deportatio was more severe than the standard relegatio imposed by the Julian adultery law, a reasonable adjustment in light of the compound crime.’ 43 Junia Calvina (AD 49) and the daughter of Sextus Marius (AD 33), known tentatively as Maria, were both convicted of the sole charge of incest. Junia Lepida (AD 65) was accused of incest and black 44 magic.’ Gardner (1986) 125—127. Dig. 4 ‘ 0 126.96.36.199 (Papinian). 141 Dig. 48.18.5 (Marcian); cf. 188.8.131.52 (Papinian): “hic duplex admissum est,” (this double crime is admitted). On the other hand, 48.18.4 (Ulpian referring to Papinian): in a case of incest the torturing of slaves is not applicable, since the lex Julia on adultery also does not apply. 142 Dig. 184.108.40.206 (Papinian); Bauman (1992) 60; Gamsey (1970) 23. 143 On the gradations of exile-type punishments, see Garnsey (1970) 111—122; GrasmUck (1978) ch. 3; Levick (1979). Pdthough the word incestus can refer simply to sexual impurity or unchastity (OLD s.v. inceslum el incestus) 144 in these three cases the charges clearly refer to inappropriate sexual contact with a close family member; see also Cornell (1981). 39 Cases of adultery There are a total of thirteen cases recorded in the ancient sources where women were charged with a form of sexual misconduct under the Julian law. There can be no question that the available information on adultery trials represents but a fraction of the actual cases that were brought forward. There are many other allegations of adultery where women may have been charged since every time a man is reported to have been convicted of adultery, a woman was most likely also charged.’ 45 In this body of evidence, we find only two examples of adultery trials during Augustan times, aside from the famous examples of the two Julias. C. Laetorius pled his youth and position to escape the maximum punishment for adultery.’ 46 145 There are a number of cases where accusations of adultery or trials of adulterers are reported in the sources, but there is insufficient evidence to conclude that the adulteresses appeared in court. See also Treggiari (1991) Appendix 1. Suet. Aug. 45: “When [Augustus] heard that Stephanio, a Roman actor, went about attended by a page-boy who was really a married woman with her hair cropped, he had him flogged through all the three theatres those of Pompey, Balbus and Marcellus and then exiled.” The story does not actually specify that there was sex involved but since actors were stereotypically immoral, there is no reason to believe that this actor would have earned the benefit of the doubt in this situation; Edwards (1993) 128—131. There is no word about the fate of the woman, but the law was quite clear that she was subject to divorce, then prosecution for adultery. The flogging (which was never part of the law, so far as we can tell) might have been a reaction to the sheer audacity of going about attended by a married woman in disguise. Flogging was a punishment option in later law for citizens of humble status; see Gamsey (1970) 136—141; Bauman (1996) 133—135. Suet. Tib. 35.1: a Roman knight had sworn that he would never divorce his wife, whatever she might do, but when he found her in bed with his son, Tiberius absolved him from his oath. We must assume that he did in fact divorce his wife and the stage was set for a formal charge of adultery against the woman; though Suetonius gives us no further information, he presents her guilt as manifest. We may wonder that the husband employed none of the violence that the Digest describes was allowed to a man who discovered his wife in mediis rebus with another man: Dig. 48.5.21—26; see also Rizzelli (1997) 9—67, esp. 9—18. Suet. CaL 12.2: Gaius seduced Ennia, wife of Macro the Praetorian prefect. Suet. Claud 16: A knight, a notorious seducer of girls and married women, escaped with a caution. Since the male lover was not convicted, prosecution could not proceed against any of the women. Tac. Ann. 11.2.1: Valerius Asiaticus was charged, in addition to other crimes, with committing adultery with Poppaea Sabina (mother of Nero’s wife of the same name) in 47; he was not convicted, but Claudius was apparently tricked into allowing Asiaticus ‘free choice of his death.’ After Asiaticus’ suicide, Messalina sent men to terrify Poppaea into a voluntary death by threats of prosecution. Threats were sufficient and she committed suicide before any charges were registered. Tac. Ann. 4.12.4: Julius Postumus committed adultery with Mutilia Prisca, no. 43. Dio 58.24.5: Mamercus Aemilius Scaurus was charged with adultery with Julia Livilla, no. 34; many others also were punished on her account, some with good reason and some as the result of false accusations. Tac. Ann. 13.21.3: Domitia Lepida, no. 19, committed adultery with her freedman Atimetus (alleged by Agrippina). Tac. Ann. 14.1: Nero committed adultery with Poppaea Sabina (while he was still married to Octavia). Tac. Ann. 14.15.4: While Poppaea Sabina was married to Rufrius Crispinus, a Roman equestrian, Otho seduced her; their adultery was followed by marriage. Tac. Ann. 14.44.1: Octavius Sagitta, deranged with love for Pontia, a married woman, bribed her into adultery and then to leave her husband. Messalina’s adulteries were infamous and multiple, culminating in her adulterous marriage to C. Silius in 48. 146 Suet. Aug. 5. — — 40 There is no indication whether his conviction was determined by the regular quaestio or by a senatorial trial. A certain freedman, Polus, was convicted of adultery with Roman matrons, and Augustus ordered him to commit suicide.’ 47 In neither example is there mention that the women were tried or convicted; according to the laws, they should have been. At the other end of our time period, Agrippina accused Junia Silana of adultery with Iturius and 48 All three of the accused were exiled; a fact known only from their later recall Calvisius.’ and Silana’s death as she was returning from exile.’ 49 Adultery as the sole charge There are only nine known cases recorded in the ancient sources in which women were charged with adultery alone. Although the adultery legislation was Augustan in origin, there survive no references to women on trial for adultery during Augustan times. 150 The first six adultery cases date from the reign of Tiberius: Paulina and Vistilia (AD 19), Aquilia (AD 25), Maria (AD 33), the younger Aemilia Lepida (AD 36), and Albucilla (AD 37). Two further cases occurred in the reign of Claudius. Julia Livilla, Caligula’s sister, had been recalled from exile at the beginning of Claudius’ reign and a scant few months later was convicted of adultery for a second time and exiled (AD 41). The other case is an unnamed woman. The final case is that of Octavia, the daughter of Claudius and wife of Nero (AD 62). The fact that only nine cases have survived in the sources in which a woman was 147 Suet. Aug. 67. Tac. Ann. 13.21.2—3. 149 Tac. Ann. 14.12.4. Although Augustus himself was rumoured to have committed adultery, there were never any charges (really, 150 who would have dared?) Suet. Aug. 69, 71. Edwards (1993) 47 notes that sexual prowess underscored a man’s power because he had the power to disrupt the marriages of high-status people. 148 41 charged for adultery alone suggests that adultery trials were not as hot a topic as some would have us believe. Let us turn to consider the nine cases in which adultery, stuprum, or incest was the sole charge against a female defendant. The two cases involving unnamed women can be briefly dealt with. Suetonius writes: libertis laudantibus cognitionem, qua pridie quondam adulterii ream condemnarat, “[Claudius’] freedman congratulated him on having found a certain woman guilty of adultery.” 51 The unnamed woman seems to have been convicted in the senate, since Claudius himself is noted as the judge; nothing else is recorded. The unnamed daughter of Sextus Marius, tentatively known as Maria, faced charges of incest with her father, the basis for which is completely unknown. It would have been a difficult accusation to refute, especially if suborned testimony had inflamed the jury, and the indignant denials of the accused parties were viewed as self-serving lies. Marius and his daughter were executed.’ 52 Slightly more is recorded about three other senatorial women. About the case of Aquilia in 25, little is known other than her conviction and penalty. Aquiliam adulterii delatam cum Vario Ligure, quamquam Lentulus Gaetulicus consul designatus lege Julia damnasset, exilio punivit. [Tiberius] punished Aquilia denounced for adultery with Varius Ligus with exile, even though Letulus Gaetulicus the consul designate had convicted her under the Julian law.’ 53 — — The punishment, although vaguely labeled exilium, must have been distinct from the usual punishment of relegatio for adultery. The context of Tacitus’ discussion indicates that the 151 152 ‘ Suet. Claud. 43.1. Dio 58.22.2—3; Tac. Ann. 6.19.1. Tac. Ann. 4.42.3. 42 imposed penalty in this case was harsher than usual due to Tiberius’ personal interference.’ 54 No punishment is mentioned for her adulterer, Varius jg5SS Nor is punishment mentioned for the younger Aemilia Lepida’s lover who was a slave.’ 56 It seems likely that he was executed after Lepida chose to commit suicide in 36 rather than mount a defense against the adultery charges. When Julia Livilla was convicted in 41, adultery was the sole charge and L. Annaeus Seneca was accused as her lover. Both were banished, and Livilla died in exile the following year.’ 57 Dio claims that Messalina had engineered the entire situation out of pique against Livilla, her niece-by-marriage.’ 58 In 49, Junia Calvina was accused of incest with her brother Silanus, allegedly at the instigation of Julia Agrippina; Silanus was betrothed to Claudius’ daughter Octavia and Agrippina wanted her son Nero to marry Octavia.’ Seneca implies that the charges were fabricated, as does Tacitus: Fratrumque non incestum, sed incustoditum amorem ad infamiam traxit. “He [the accuser] ascribed the siblings’ love merely unguarded — — which was not incestuous, to something scandalous.” 60 Still, she was decora etprocax, “beautiful and rather wild,” according to Tacitus, and festivissima, “very lively” according to Seneca’s Apocolocyntosis, in which everyone called her Venus except her brother who called her ’ Juno was sister and wife of Jupiter; if the allusion is unclear, Seneca bids you look 6 Juno.’ toward Alexandria for a precedent where the Egyptian royal family allowed brother-sister 154 Rogers (1935) 91 suggests that the penalty also included confiscation of her property; Bauman (1996) 62 suggests that the penalty was actually deportatio; also Martin and Woodman (1989) 201. 155 PIR’ V 189; Syme (1986) 301 and n. 11 suggests that Ligus was a praetorian prefect under Augustus. Martin and Woodman (1989) 201 suggest that this Ligus was the son of the prefect; PIR gives no indication of a son. 156 Tac. Ann. 6.40.3. 157 Dio 60.8;5. Livilla’s first conviction for adulteiy will be discussed below in the section on adultery as one of multiple charges. Annaeus Seneca was recalled from exile in 49 through the agency of Livilla’s sister Julia Agrippina so that he would be tutor to her son Nero (the future emperor), Tac. Ann. 12.8.2. 158 Livilla’s case and Junia Calvina’s will receive further discussion in chapter 3, Women pro accusatoribus. 159 Tac. Ann. 12.4; 12.8.1. 160 Tac. Ann. 12.4.2; Sen. Octavia 147—149. 161 Tac. Ann. 12.4.1; Sen. Apoc. 8. 43 62 marriages.’ Neither Suetonius nor Dio mentions the incest in their accounts of the destruction of Silanus.’ 63 ioo2s5ovtá di ‘toy Dio writes that his freedmen nEtOourn i2ctvOv <OKtElVctl, tOy KXct3ötov thç “persuaded Claudius to kill Silanus on the grounds that he was conspiring against him.” 164 If the incest was just barely plausible because of Calvina’s character and the siblings’ imprudent relationship, any hint of conspiracy would have tipped the balance. Silanus could not be allowed to marry the emperor’s daughter. He committed suicide and his sister was banished from Italy (Italia pulsa est).’ 65 Whether her punishment was the relegatio imposed under the Julian adultery law is unclear. In another case, the senate’s attention was caught and held by the actions of Vistilia, charged in AD 19 with adultery after she registered her name with the aediles as a prostitute. Nam Vistilia, praetoriafamilia genita, licentiam stupri apud aediles vulgavera4 more inter veteres recepto, qui satis poenarum adversum impudicas in isa professione flagitii credebant. Vistilia, born of a praetorian family, published with the aediles her availability for stuprum (illicit sex), using a custom among the ancients who believed that there was sufficient punishment against immorality in the very confession of disgrace.’ 66 This action seems beyond comprehension, but Suetonius gives some context: Feminae famosae, Ut ad evitandas legum poenas iure ac dign itate matronali exolverentur lenocinium profiteri coeperant. Infamous women were beginning to ply openly as prostitutes so as to be released from matronly authority and reputation and to escape the penalties of the laws.’ 67 162 Sen. Apoc. 8: ‘Quare ...sororem suam? ‘Stulte, stude: Athenis dimidium licet, Alexandriae totum. “Why his own sister?’ Read your books, stupid: at Athens you may go half-way, the whole way at Alexandria.” 163 Suet. Claud. 29.2; Dio 61.3 1.8. Dio 61.31.8. 165 Tac.Ann. 12.8.1. 166 Tac. Ann. 2.85.2. 167 Suet. Tib. 35.2. 44 Apparently the shame and social disgrace was not a deterrent, as Tacitus claims it was for women of old. There was some kind of legal loophole that Vistilia thought she would be able to exploit to avoid the penalty for adultery, and Suetonius implies that she was not the only woman to attempt this dodge. Why did it fail to work in her case? Possibly her status was too high, since her family was of praetorian rank. What tricks may have worked for women of lower status would not be tolerated among the most elite. Vistilia’s registration with the aediles was unquestionably an attempted evasion of the Julian laws — she was not actually turning to prostitution as a new profession. Her boldness certainly inflamed the senate. Eodem anno gravibus senatus decretis libido feminarum coercita cautumque, ne quaestum corporefaceret cui avus autpater aut maritus eques Romanusfuisset. In that same year [191 the lust of women was curbed by weighty senate’s decrees and measures were taken that no one should make a profit from her body whose grandfather or father or husband was a Roman equestrian. 168 A further clue to the content of this senatus consultum is found in Papinian, referring to the decree enacted as a direct result of Vistilia’s case. 169 Mulier, quae evitandae poenae adulterii gratia lenocinium fecerit aut operas suas in scaenam locavit, adulterii accusari damnarique ex senatus consulto potest. A woman who, to avoid the penalty of adultery, has become a brothel-keeper or who has hired herself out on the stage can be accused of and condemned for adultery according to the senatus consultum.’ ° 7 168 Tac. Ann. 2.85.1; see also Levick (1983) 111—114; McGinn (1992) 284—286. McGinn (1992) 284; Levick (1983) 114. The SC Larinum, on a bronze tablet, contains a senatorial decree of AD 19 outlining that the senate would punish anyone who had appeared on state or in the games contrary to the dignity of their social order and who had, by their offense, diminished the majesty of the senate; for full text and commentary, Levick (1983) 98—105. The SC Larinum dates to the first half of 19, based on the consuls named, but must not be confused with the decree passed in the same year as a result of Vistilia’s case. McGinn (1992) 288, 29 1—295 cautions against filling in the lacunae in the Larinum decree with ideas not represented elsewhere in the decree and rejects the theory that the SC Larirnim had anything to do with adultery in general or Vistilia in particular, arguing specifically against Malavolta (1978) and Guiffrè (1980). Therefore, if the SC Larinum does not contain the decree that is described by Papinian, there must have been a second senatorial decree that remains otherwise unknown to us. 170 Dig. 48.5.1 1(10).2 (Papinian). 169 45 Tacitus continues his account of this episode, mentioning that Vistilia’s husband Titidius Labeo was criticized for not acting when his wife was in clear breach of the Julian adultery law. Labeo responded by claiming that the full sixty days granted to him for initiating a prosecution had not yet passed. The senate decided to proceed against Vistilia alone, eaque in insulam Serzhon abdita est, “and she was banished to the island 71 The senate made her an example Seriphos.” — anyone who emulated her in future would be prosecuted according to this SC and not just the Julian adultery law. The punishment prescribed for Vistilia seems to have been harsher than the relegatio set by the Julian law. Suetonius names the punishment for both this SC and for the SC Larinum dealing with upper-class performances as exilium.’ 72 If he uses the term in its technical sense, punishment under these SCC may have included loss of citizenship, restrictions on property ownership and banishment.’ 73 Garnsey points out that exilium and exul were sometimes used imprecisely to refer to both relegatio and to the harsher penalty exilium (later known as deportatio).’ 74 Strictly speaking, the ban on prostitution imposed by the SC is not equivalent to the Julian law on adultery, so there is no reason to assume that the penalties would be identical.’ 75 Furthermore, in the context of the senate’s outraged reaction to Vistilia’s boldness, it seems likely that a punishment heavier than that directed by the Julian law would be imposed — she had not only committed adultery, but had also blatantly 17i Tac. Ann. 2.85.3. Ironically, her husband Labeo had found a real loophole: technically he had not broken the law and he was not punished. 172 Suet. Tib. 35.2. ‘ McGinn (1992) 286; on Suetonius’ inclination to use technical terms, see Wallace-Hadrill (1983) 20, 90. Gamsey (1970) 111—122 at 112; McGinn (1992) n. 66 points out that a distinction between relegatio and exilium was made as early as Ovid’s exile in AD 8 (Tr. 2.137; 5.11.21). McGinn (1992) 286. 46 flaunted her shameless attitude. A harsher sentence would better address the senate’s double goal of punishment and deterrence. 176 Nero’s wife Octavia faced an accusation of adultery with the slave Eucaerus. Nero wished to divorce Octavia in order to marry his long-standing mistress Poppaea, but popular support for the emperor’s wife was strong. The adultery charges were suborned, apparently at Poppaea’s instigation, in order to discredit Octavia) 77 When Octavia’s maids were interrogated under torture, however, they staunchly supported their mistress and the trial seems to have ended in an acquittal.’ 78 There is no word about the verdict of Eucaerus’ trial. The last case in this section is that of Paulina, who earned a place in this discussion because she confessed to her adultery, even though we have no evidence that she was formally prosecuted. She had caught the attention of Decius Mundus, but virtuously refused his advances even (or maybe especially) when he offered her 20,000 Attic drachmas.’ 79 His mind turned to subterfuge. Knowing that Paulina was a devotee of Isis, he enlisted the aid of his freedwoman Ide who bribed the priests of Isis to arrange a tryst in the temple of Isis where Mundus would appear to Paulina as the Egyptian god Anubis. When Mundus’ boasting brought the trick to light, Paulina confessed to her husband Saturninus and begged him to obtain redress. He brought the matter to Tiberius, who, after a thorough investigation, crucified the priests and freedwoman Ide, razed the temple of Isis and ordered the cult statue thrown in the Tiber. Mundus was exiled. Of Paulina’s fate, not a word. Under the terms of the Julian adultery law, she was guilty of adultery and because her husband was aware of the crime (through her own confession, no less), he was legally obliged to divorce her and 176 178 ‘ See Tac. Ann. 4.42.3, where Tiberius increased Aquilia’s punishment. Tac. Ann. 14.60.2. Tac. Ann. 14.60.3; 14.62.1; Suet. Nero 35.2. Jos. AJ 18.65ff. 47 prosecute her for adultery. Furthermore, since Tiberius had been made aware of the situation, Paulina and Saturninus could not have hoped that the emperor would ignore it. There is no word in the Digest regarding adultery committed with a putative god. The only possible reprieve would come from an imperial admission that the trick obviated Paulina’s guilt. In cultural memory, however, even Lucretia and Verginia had not been relieved of the taint of adultery even when they were obviously (to our thinking) innocent parties.’ ° 8 The results of the accusations are known for eight of the nine cases examined where adultery or incest was the sole charge. Only Paulina’s fate is unrecorded, but the freedwoman Ide was executed as an accomplice to Paulina’s adultery. The younger Aemilia Lepida committed suicide before her trial, and Octavia was acquitted.’ ’ 8 The other six women were duly convicted, probably all in senatorial proceedings.’ 82 Maria was executed, even though she was accused of a sub-capital crime. Two women, Junia Calvina and Livilla, suffered the penalty of relegatio specified by the Julian adultery law. The unnamed Claudian woman was convicted but no penalty was recorded; lack of interest in her penalty could indicate that she received the normal penalty, that is, relegatio. The remaining two women, Aquilia and Vistilia, were sentenced to exilium, a harsher version of banishment. Of these six cases convicted in the senate on adultery charges alone, therefore, only half were assessed the appropriate statutory penalty while the others received harsher sentences. The senatorial court had flexibility in assessing sentences and could be swayed by the passions of its members to give harsher penalties; Vistilia’s increased penalty seems to have been the result of her outrageous contravention of elite mores. 180 181 182 Val. Max. 6.1.1; Livy 1.58; 3.44; Richlin (1981) 389. Octavia faced a second trial soon after, discussed below. See also Marshall (1990). 48 Adultery as one of multiple charges All seven cases in this category began with accusations of adultery and allegations of 83 Edwards is sensitive to the interplay some kind of treasonous activity against the emperor.’ between the two types of accusations when she says: “The law against adultery bore a disconcerting resemblance to that against treason — and adultery itself became more 84 As discussed previously, women in the intimately associated with political subversion.” imperial family like the two Julias were in positions of a politically sensitive nature. Barrett suggests that there was a tendency to distract attention from political intrigue by raising claims of an imperial woman’s sexual impropriety.’ 85 In this way, accusations of adultery could be used for more serious suspicions against a woman — under this charge, a woman’s slaves were available for questioning and the accusers might hope to uncover evidence of more serious politically involved activities. 186 Several women related to the imperial family faced similar allegations; after the younger Julia was exiled in 8, the first woman who faced this combination of accusations was Augustus’ great-niece Appuleia Varilla in 17. Appuleia was accused of both maiestas and adultery by an unnamed delator. Her treasonous activities consisted of abusive speech against the emperor Tiberius, his mother, and divus Augustus.’ 87 Tiberius declared that no speech against himself or his mother would be prosecutable. Tiberius’ speeches during the trial suggest that he presided over the proceedings, although the emperor always had the right to express his opinion in the senate whether he officially presided over the meeting or not. 183 Tacitus reports that liberavit See Bauman (1974) ch. 7 on adultery and maiestas. (1993) 6 1—62. 185 Barrett (1989) 108; see also Barrett (1996) 63—70 for a full discussion of the political intrigue surrounding this case. 186 Bauman (1992) 170; cf. Bauman (1974) ch. 7; on the right to question slaves, see Dig. 48.18.4 (Papinian); 220.127.116.11 (Arcadius Charisius). 187 Tac. Ann. 2.50.1. 49 Appuleiam lege maiestatis, “he freed Appuleia from the law of treason.” 188 The active verb liberavit indicates that Tiberius was in fact giving judgement on the trial, or that he exercised his right of intercessio in the sentencing phase of the trial. The meaning of the verb is not perfectly clear, however.’ 89 Does it mean that Tiberius intervened at some point before the conclusion of the trial and caused the charge to be dropped? Or was she was acquitted after a full trial? Or was she found guilty by the senate after a full trial and Tiberius nullified her sentence (in the ten days’ interval between conviction and implementation of the ° The last option seems rather unlikely since an action so autocratic would 9 sentence)?’ probably have left some hint of itself in Tacitus’ account. 191 Tiberius is first reported to have stated that her adultery could be adequately dealt with under the Julian law. Then he urged that her penalty be mitigated and that, on their ancestors’ example, she be removed by her relatives beyond the th 200 92 Some milestone.’ scholars interpret this phrase to mean that she was turned over to a domestic court for trial and Sentencing.’ 93 There is, however, another possible interpretation: Appuleia was tried in the senate to the point where a guilty verdict was rendered, then she was turned over to her relatives for sentencing with the clear expectation that they would rule according to the mos maiorum. The latter interpretation has the advantage of keeping the full proceeding in the senate where it seems very likely that the trial had been held. A comment in Livy’s long description of the Bacchanalian scandal of 186 BC gives some support: Mulieres damnatas 188 Tac. Ann. 2.50.3. Neither TLL nor OLD sufficiently clarify the matter. 190 Dio 57.20.4; 58.27.5. 191 Goodyear (1981) 346 suggests that she was either acquitted or, though found guilty, granted mercy. Bauman (1974) 78 suggests that Tiberius put a summary end to the proceedings because the evidence was unsatisfactory. 192 Compare Suet. Tib. 35.1 in which he comments that Tiberius revived the ancestral custom of referring married women to a family council to judge their improprieties. Talbert (1984) 479 suggests that Appuleia’s high rank may have induced Tiberius toward leniency; cf. Gamsey (1970) 37—38. 193 Bauman (1996) 55 and 177 n.19; Bauman (1992) 244 n. 23; Rogers (1935) 202. 189 50 cognatis, aut in quorum manu essen4 tradebant, Ut lpsl in privato animadverterent in eas; “Convicted women were turned over to their relatives or to those who had authority over them, that they might be punished in private.” 94 Investigation and trials of the Bacchanals were conducted by the consuls as charged by senatus consultum.’ 95 There is, however, no other attested parallel for this transfer of jurisdiction. 196 Another example of a domestic court can be found in AD 57 when Pomponia Graecina was charged with foreign 97 in this case, there is no doubt that the entire ‘trial’ took place in the domestic superstitions;’ court in the presence of her husband and her relatives. A third, rather less likely possibility, is that Appuleia was sentenced by the senate according to the mos maiorum (rather than by the Julian law) and that the implementation of her punishment was left in the hands of her relatives. After Appuleia’s trial concluded, the trial of her lover Manlius followed and resulted in conviction. 198 It is appropriate that the trial of the alleged lover be conducted only after the accused adulteress’s trial has concluded with a guilty verdict.’ 99 Manlius was forbidden to reside in Italy or Africa. There is no mention in Tacitus’ account whether the delator tried to bring charges of treason against him. If, however, there had been evidence that he was involved in any treasonous activities such as inciting or repeating her mockery and abusive comments, it seems reasonable to expect that he would have been named as a co-defendant on the maiestas charges. 194 Livy 39.18.6. The entire account can be found at 39.8—19. Livy 39.14.6—10; 17.1; 17.7; 18.1—19.2; 19.7. Bawnan (1992) 244 n.23 skirts this idea by saying that crimes could be “defmed by a public criminal law, 196 but trials be referred to the family court.” 197 Tac. Ann. 13.32.2—3; Pomponia Graecina, no. 48. M 151. 2 pIR 198 ‘ If she were acquitted, then defacto there was no adultery and the lover could not be charged: Dig. 48.5.2; 18.104.22.168. If a woman was married at the time of the adultery or had married since the adultery (but before she was charged), it would be proper to charge the male lover first: Dig. 22.214.171.124; 126.96.36.199. 195 51 Under the year 20, Tacitus provides quite a full report of the sensational trial of Aemilia Lepida. ° Before we turn to the trial itself, a little background is in order. Great20 granddaughter of Sulla and Pompey, Lepida had been betrothed to Lucius Caesar, grandson of Augustus, before the unfortunate young man met his demise in AD 2.201 Soon after, in AD 3 or 4, she married P. Sulpicius Quirinius (cos. 12 BC), a friend of the emperor Tiberius; she was about seventeen, he was in his mid-fifties. 202 The issue of this marriage was a single child, probably a girl; then Lepida and Quirinius divorced. 203 After an unspecified amount of time, Lepida married again, to Mamercus Aemilius Scaurus with whom she had another 204 daughter. 200 Ann. 3.22—23; also Suet. Tib. 49. Tac 201 Tac. Ann. 3.22.1; Syme (1986) 261—262 and stemma 16. 202 PIR’ S 732; Townend (1962) 486 gives these ages for Lepida and Quirinius, but they are only approximate. Since Lepida had been betrothed to L. Caesar, who was born in 17 BC, she would have been about his age or younger, therefore in her late teens at the time of her marriage. She could, however, have been up to five years younger since the minimum legal age for marriage was only 12 years old for girls. Townend calculates Quirinius’ age based on his consular date of 12 BC and an estimation that he did not hold it earlier than the statutory age of 42 years (not having noble connections to accelerate his promotion), thus making him about 56 at the time of the marriage. 203 The duration of the marriage is the subject of some conjecture. On one interpretation, the marriage was very short and the divorce occurred some fifteen years before the trial; their child was therefore a teenager at the time of the trial. This interpretation hinges on Suetonius’ words post vicensimum annum (Tib. 49). Supporters of this position include Rogers (1935) 54 and Townend (1962) 486—488, who agree that vicensimum is an exaggerated round number. The major objection to this interpretation is that the five-year statute of limitations for charges of adultery had long passed so that charge should not have been admitted (but it clearly was). There is no indication, however, that Quirinius was bringing charges as a cuckolded husband; he could have been an accusator extraneus prosecuting instead of the otherwise unknown cuckolded husband. The ten years or so after the divorce from Quirinius was plenty of time to have married, cheated on, and divorced another man before she married Scaurus. On the other hand, Woodman and Martin (1996) 210—213 suggest the possibility that the marriage between Quirinius and Lepida endured for more than ten years, proposing a tight time frame for the events: the adultery produced the first child, then they divorced, then Lepida married Scaurus and had the second child. Thus, at the time of the trial, Lepida had two very young children. The lapse of time from the adultery to the trial was thus a minimum of about 20 months (the length of two pregnancies with a minimal space between) and a maximum of five years (the statute of limitations set by Augustus for the prosecution of adultery). This interpretation has the advantage of eliminating the questions: (I) on the apparent expired statute of limitations for adultery; (2) on the long-lingering anger of Quirinius (which would, on this interpretation, be quite fresh). 204 Lepida and Scaurus seem to have divorced prior to the trial, Woodman (2004) 93 n.49. If she had been married at the time of the accusation, the trial against her accused lover should have been held first and resulted in a conviction in order to have allowed charges to be presented against her, according to Dig. 48.5.12. There is no mention of this other trial either before or after Lepida’s, nor, in fact is the lover mentioned at all. If the lover’s trial had been held first, and resulted in condemnation, her conviction should have been assured and 52 The trial began early in the fall of AD 20.205 Lepida’s brother Manius Aemilius Lepidus was her advocate in court. 206 The facts of the trial and its progression are difficult to 207 but the original indictments are clear enough: ascertain, defertur simulavisse partum ex P. Quirinio divite atque orbo; adiciebantur Lepida adulteria venena quaesitumque per Chaldeos in domum Caesaris. ... Lepida was accused of having pretended to have borne a child to P. Quirinius, her rich and childless [ex-husband]; also thrown at her were charges of adultery, poisonings, and inquiring through Chaldean astrologers about the imperial house. 208 Let us consider the charges individually. The first charge is that of ‘pretending to have borne a child’ to Quirinius. There are two ways to pretend here: either Lepida was never pregnant at all and had acquired a child which she presented to her husband as their offspring, or Lepida had conceived a child by some other man. The latter seems to have been the case here, which is where the adultery charges become relevant. If Quirinius could prove adultery, he could also convince the court that the child born to Lepida was not his. Lepida was charged under the lex Julia de adulteriis and, regarding the suppositious child, under the lex Cornelia defalsis (Cornelian law on fraud). 209 Statutory punishment was aquae et ignis interdictio (interdiction from water and fire). ° 21 The third charge regarded poisonings; seemingly a more serious charge than was warranted since Quirnius, the alleged victim, was still alive, but there was no lesser easily decided without the extra drama of three other charges. It is preferable, therefore, to understand that she and Scaurus were afready divorced before her trial. Woociman (2004) 94 n. 52 suggests that the trial may be placed in the early autumn based on the festival that 205 interrupted it, the Ludi Romani held September 4—19; also Talbert (1984) 203—204; Koestermann (1963) 458. 206 2 A 363. PIR Wooan and Martin (1996) 223 despair that this entire episode is “desperately opaque.” 207 208 Tac.Ann. 3.22.1. 209 See Berger (1953) s.v.falsum; lex Cornelia defalsis was a broad statute that applied to fraud of many kinds; on suppositious children in particular, see Dig. 188.8.131.52; 184.108.40.206 (Paul): there is no statute of limitations on an accusation of a substituted child; 220.127.116.11 (Modestinus): only the parents or persons affected by the matter may bring an accusation of a substituted child. 210 Dig. 48.10.33 (Modestinus). 53 indictment category for attempted poisoning. The relevant statute was the lex Cornelia de sicariis et veneficis (Comelian law regarding murderers and poisoners). ’ 21 According to Digest 18.104.22.168 (Marcian), praeterea tenetur qui hominis necandi causa venenum confecerit dederit “He also is liable who makes up [and] administers poison for the purpose of killing a 212 Lepida’ s intention, therefore, was at issue rather than the fact that her actions did man.” not result in the death of her husband. Statutory punishment ranges from relegatio 213 to deportatio et omnium bonorum ademptio, “deportation and confiscation of all property.” 214 The final accusation of consulting astrologers regarding the emperor’s family was considered a treasonous offense. 215 There will be more on the treason laws in the following chapter, so the merest taste must suffice here. Tiberius’ first reaction was that he deprecatus senatum ne maiestatis crimina tractarentur, “implored the senate not to proceed with the charges of treason.” 216 Then, Tacitus tells us, a certain Marcus Servilius, an ex-consul, was induced by Tiberius ad proferenda quae velut reicere voluerat, “to divulge what he had seemingly wished to suppress,” 217 that is, information pertaining to the accusation of treason. Immediately thereafter, Lepida’s slaves were transferred to the custody of the consuls for interrogation. Had they not been interrogated previously for information pertaining to the adultery accusation? The testimony of slaves against their owners was admissible in court 211 Berger (1953) s.v. lex Cornelia de sicariis et veneficis; a Sullan enactment of 81 BC, still in effect under Justinian. 212 Similarly, Dig. 48.8.3. 213 Dig. 22.214.171.124 (Marcian). 214 Dig. 126.96.36.199 (Marcian). 215 Bauman (1974) 59—69, esp. 60—61 and n. 50 where he dates the relevant senatus consuitum to AD 17 based on the consuls named by Ulpian Coil. 15.2.1. Tac Ann. 3.22.2. 216 217 Tac. Ann. 3.22.2. 54 only in cases of treason and adultery. 218 The treason charge now posed a renewed and serious threat to Lepida. Then the courts recessed for a holiday. During the games, theatrum cum claris feminis ingressa, lamentatione flebili maiores suos ciens isumque Pompeium, cuius ea monimenta et adstantes imagines visebantur tantum misericordiae permovit, Ut effusi in lacrimans saeva et detestanda Quirinio clamitarent. [Lepida] went into the theatre with some other ladies of rank and appealed with piteous wailings to her ancestors to Pompey himself whose monuments were visible and whose statue was before her and she aroused such sympathy that people burst into tears and shouted savage curses on Quirinius. 219 — — This incident reveals that Lepida was not detained during the course of her trial and was free to move about the city and attend public events. 220 More interesting, however, is the way Lepida rallied popular support. Was this an unusual move in itself or was it just unusually effective? Tacitus does not record similar episodes involving other defendants, yet appeal to the crowd in the theatre was not new. 221 Lepida inflamed the crowd against Quinnius and apparently hoped to sway the progress of her trial by the threat of public riot. Court reconvened after the games, the trial proceeded, and then, Tacitus tells us, dein tormentis servorum patefacta sunt flagitia, “by the evidence (torture) of her slaves, her disgraceful actions were brought to light.” 222 Then the verdict: guilty. Frustratingly, the sources don’t specify exactly what her flagitia were or exactly which charges she was 218 Dig. 48.18.5 (Marcian); 48.18.6 (Papinian); 188.8.131.52 (Paul); 184.108.40.206 (Arcadius Charisius); 48.18.17 (Papinian); see also chapter 5. 219 Tac. Ann. 3.23.1. 220 Compare this to Albucilla, who was imprisoned during the course of her trial, Tac. Ann. 6.47—48. 221 Augustus used an appearance at the theatre to display the joys of family life (and obedience to his marriage laws) by dandling his great-grandchildren on his knee, Suet. Aug. 34; compare the necessity for appeals to the mob by Caesar, see Millar (1998)126. In modern terms, this would be analogous to giving media interviews during the course of the trial strictly forbidden by modem statute, but apparently acceptable by ancient standards. Her dramatic speech also brings up echoes of the Roman contio, a political speech addressed directly to the crowd; Millar (1998) 35, 46—47. 222 Tac. Ann. 3.23.2. — 55 convicted of, and her punishment is reasonably consistent with a conviction for any one of the four charges of falsum, adultery, poisoning or treason. On the proposal of Rubellius Blandus and with the agreement of Drusus Caesar, consul-designate, Lepida was sentenced to interdiction (aquae et ignis interdictio), an unsupervised exile from Rome, and conlEiscation of her property. 223 Some senators, influenced by loyalty to Lepida’s family or by the reaction to her piteous wailings in the theatre, in vain proposed a milder sentence. No one seems to have believed that she was innocent. Lepida’s husband Scaurus sought and received the concession that her property not be confiscated — likely for the benefit of their daughter, who would then be in a position to inherit her mother’s substantial estate. The ordered punishment of exile served the state by simply removing the condemned from the scene of the crime. Her crime was such that simple removal from the heart of Rome both punished her and eliminated the possibility of recurrence since the heart of the Roman social scene was beyond her access. At this point, Tacitus relates, Tiberius announced that his own examination of Quirinius’ slaves had revealed that Lepida had indeed attempted to take their master’s life by poison. The timing of his announcement is curious — the trial is over, sentence has been passed. The only logical reason for the timing of Tiberius’ comment is public relations. There was a good deal of ill-feeling towards Quirinius and his relentless hostility toward Lepida. It was possibly in light of the volatile public mood that Tacitus claims Tiberius had 223 Tac. Ann. 3.23.2; Rubellius Blandus was the son-in-law of Drusus, the son of Tiberius; PR 2 1 219. On his other activities in court, see Rogers (1932); on Drusus’ reputation for savage cruelty, see Tac. Ann. 1.29.76; 3.23; 4.3; Dio 57.13.1; 57.14.9. On interdictio, see Strachan-Davidson (1912) ch. 15 and 16; Grasmtick (1978) 64—109. 56 exempted his son Drusus, the consul designate, from the traditional place of speaking first, which he would not have done except to save him from the responsibility of condemning. 224 One might wonder what had prompted Quirinius to press charges against Lepida at all, or at this point in particular — their marriage had already ended and he must have originally acknowledged the child. It is possible that he had discovered new information about his child’s paternity, and the only way to disown the child as his heir was to disprove 225 Quirinius was very wealthy and the disposal of his estate would have been a blood ties. significant concern to him. He was otherwise childless, and likely would not have disowned a son even doubting his paternity, so we may suggest that the child was a daughter. To whom, then did he intend to bequeath his wealth, if not his putative child? Perhaps he would leave his fortune to the emperor, possibly giving Tiberius some motive to bias the trial in favour of Lepida’s conviction. vengeful pride — However, Quirinius’ motives — if he had any other than remain mysterious. Less mysterious are the motives for prosecuting Claudia Pulchra, widow of Quintilius Varus, who faced multiple charges in AD 26 of impudicitia, poisoning and aiming curses at the princeps. 226 During the 20s AD, the praetorian prefect Sejanus was in the height of his power and many important personages were eliminated by his ambitious and ruthless maneuvres. Tacitus reports that Claudia Pulchra was accused as part of Sejanus’ 224 Tac. Ann. 3.22.4. If Drusus had spoken first, others might have felt obliged to agree with what he had said; but since he had withdrawn from speaking first, some had inferred that he would have spoken in favour of conviction on the grounds that a speech for mercy would have reflected well on himself and his father and so would not have been prevented. On Drusus’ character, see Tac. Ann. 1.29.76; 3.23; 4.3; Dio 57.13.1; 57.14.9. On the other hand, this incident might be a garbled reflection of Tiberius’ attempt to maintain judicial integrity (remember that he and Quirinius were old friends). By removing his son’s (and therefore his own) opinion from the position of first speech in the senate, Tiberius might have hoped to evade accusations ofjudicial favoritism. 225 Townend (1962) 488. Pjs is the famous Quintilius Varus who lost three legions in the Teutoberg forest in Germany in AD 9. 226 57 machinations intended to lead to the extermination of Vipsania Agrippina. 227 She was accused by the delator Domitius Afer on charges of impudicitia (Furnius was named as her lover), poisoning, and aiming curses at the princeps. inflamed by the danger to her friend and relative — 228 Before the trial began, Agrippina — approached Tiberius and railed at the unfairness of the attack on Pulchra, whose only error was in being a friend to her. 229 Agrippina’s passionate defense of her friend was unhelpful and both Pulchra and Fumius were condemned. ° Their specific punishment is not mentioned; the statutory penalty for 23 stuprum was relegatio (exile and partial confiscation of property). ’ 23 The vague accusation of impudicitia seems to be a Tacitean euphemism for a charge of stuprum, which falls into the same category of sexual misconduct as the more common charge of adultery. 232 A widow could, in fact, be charged with adultery so long as the adulterous activities had taken place within the previous five years. 233 Pulchra had been a widow for nearly sixteen years so could not be charged with adultery; the indictment must have been for stuprum. 227 Tac. Ann. 4.52.1; see also Bauman (1992) 147. On Domitius Afer, see PR 2 D 126; Rutledge (2001) 220—223. Afer had been praetor the year before (25), and went on to become consul in 39. He prosecuted Pulchra’s son in 27 the year after the mother’s trial (Ann. 66.1). He was widely regarded as one of the most successful orators of his generation, though while Quintillian praised his humourous wit (5.3.72), Tacitus questioned his morality (Ann. 4.52.4 and 14.19). Ott Furnius, see 2 F 589; he is otherwise unknowii. PIR 229 Tac. Ann. 4.52.2—3; Rogers (1935) 193; on the topic of the partes Agrippinae, see Bauman (1992) 144—149 and 153—156. Tac Ann. 4.52.3. 230 231 Bauman (1992) 148; also Bauman (1996) 32—35, on relegatio as the standard punishment for adultery. 232 Alternatively, the word impudicitia may have been used by Afer himself and Tacitus merely prolonged the euphemism. Valerius Maximus (6.1.11) also uses the euphemism impudicitia for stup rum, see Fantham (1991) 280. At any rate, there is no formal charge of impudicitia, so the official charge must have been stuprum, so Bauman (1992) 147. Dig. 220.127.116.11 (Papinian) confirms that the lex Julia de adulteriis refers to adultery and stuprum indiscriminately, and that both are punishable under this law. 233 Dig. 48.5.5 (Julian) states that a widow can be charged with adultery. Similarly, Dig. 18.104.22.168 (Papinian); also, 22.214.171.124 says that a man can be charged with adultery within the five years following the date of the offense even if the woman is dead. 228 58 The other charges of veneficia in princiem et devotiones (poisoning and curses at the emperor) seem to have generated rather less concern than one might have expected. If Tiberius had seriously believed that Pulchra had attempted to poison him, the charges against her would likely have been inflated to treason. Furthermore, the accusation of aiming curses at the emperor seems to be just as treasonous as the inreligiose dicta of Appuleia Varilla, the astrological inquiries of Aemilia Lepida or the apparent verbal slander of Albucilla 234 (below). The frequency of treason trials during his reign shows that Tiberius had no aversion to treason trials per Se, and there is no reason to believe that he would have held back because Pulchra was a relative (in fact, he had not protected Appuleia Varilla or Aemilia Lepida). These charges must have been dropped. Under the year 37, Tacitus informs us that Albucilla, the former wife of Satrius Secundus and multorum amoribus famosa, “famous for having many lovers,” was charged with adultery and impietas in princlem along with six senatorial co-defendants. 235 Denounced as conscii et adulterii were Cn. Domitius, Vibius Marsus, and L. Arruntius. 236 Tacitus states his suspicions that the charges were largely fabricated by Macro, the praetorian prefect, because of his well-known antagonism toward Arruntius and that Tiberius might not even know about them. 237 Domitius and Marsus did not react immediately, but Arruntius decided to commit suicide. Albucilla chose to follow suit, but when her suicide attempt was unsuccessful, she was taken to prison by order of the senate and died there. 238 The other three senatorial co-defendants, charged as stuprorum eius ministri, “accomplices of her 234 Bauman (1974) 78, 130 notes that Tiberius had proceeded with reluctance on the topic of verbal slander. The charge of impietas in princlpem was a derivative of maiestas; see Bauman (1974) for a full discussion, and for this case specifically, see pp. 130—134, 175—176. 236 2 D 127; PIR’ V 388; PIR PIR 2 A 1130; see section below for a more extensive discussion of these men. 237 Tac. Ann. 6.47.3; Dio 58.27.2 concurs. 238 Tac. Ann. 6.48.4; Dio 58.27.4. 235 59 stuprum,” were Carsidius Sacerdos, Pontius Fregellanus and Laelius Balbus. 239 These three men were brought to trial immediately, likely since their crimes were liable under the Julian adultery law only. Their punishments are recorded: Sacerdos was deported to an island, Fregellanus was stripped of his senatorial rank, and Balbus was deported and demoted. ° 24 Tiberius was gravely ill at this point, so the trials of Domitius and Marsus were delayed, and ’ 24 when he died, the two escaped prosecution. Despite their status, there is no evidence that any of them actually plotted against the emperor; their crimes may have been no more serious than loose talk. Bauman calls the group surrounding Albucilla an ‘association of rebellious spirits meeting together to commit adultery and to sharpen their wits on the foibles of the world in general and the emperor in 242 He likens them to the coterie that surrounded the elder Julia before her exile. particular.’ The praetorian prefect Macro had tried to institute prosecution for verbal treason before unsuccessfully — — and now that Tiberius was on his deathbed, he tried again using the solemn phrase impietas inprinciem and nearly got away with it. 243 The senate, mindful of Tiberius’ earlier ruling (in the case of Mamercus Scaurus) refused to accept the charges without a directive from the emperor. Since instructions from the emperor did not materialize, his death allowed the charges against Domitius and Marsus to dissipate. Although Domitius had escaped unscathed from the prosecutions of 37, scarcely two years later his wife Julia Agrippina and her sister Julia Livilla were accused of adultery and conspiracy. Suetonius reveals that Caligula had prostituted his sisters to his friends, but in 239 2 C 451; PIR PIR 2 P 800; PIR 2 L 48; Dig. 48.5.9 (Papinian) and 48.5.10 (Ulpian) their house for the commission of stuprum are liable under the Julian law. 240 Tac. Ann. 6.48.4. 241 Dio 58.27.5. 242 Bauman (1974) 132; also Bauman (1992) 164. 243 Bauman (1974) 134. 60 state that those who provide this case, their alleged adulterer was none other than M. Lepidus, great friend of Caligula and the husband of their dead sister Drusilla. 244 Lepidus himself was on trial for treason and during the proceedings against him, Caligula denounced his sisters as adulteresses and conspirators, producing letters in their handwriting that he had acquired by trickery and 245 Barrett suggests that this may have been “the traditional device of covering up seduction. political intrigue with the claim of sexual indiscretion.” 246 Caligula dedicated to Mars Ultor the three swords with which, he claimed, they had intended to kill him. Such a dedication may imply that Caligula felt there had been a serious plot against his life, or maybe only that he wanted it to appear that way to justif’ his reaction. 247 Lepidus was convicted and immediately executed; Agrippina and Livilla were convicted and exiled to the Pontian islands. Their punishment was relegatio, the standard punishment for adultery, which included confiscation of a portion of their property — which Caligula then auctioned off in 248 He implied that they had escaped execution only at his whim: relegatis sororibus, Gaul. non solum insulas habere Se, sed etiam gladios minabatur. “He threatened, when he relegated his sisters, that he had swords as well as islands.” 249 Since the trial took place somewhere outside of Rome, Lepidus, Agrippina and Livilla were convicted in an extra ordinem procedure under Caligula’s supervision and without a 244 Suet. Cal. 24.5, 29; Dio 58.22.6—9 describes him as tOy pctatfv tOy pth.tevov, “his lover and favourite” and may imply a homosexual relationship between the two men, though Meise (1969) 109 n. 108 says it was only close friendship. These events fall into the ten-year lacuna in Tacitus, so we must rely on Suetonius and Dio for information. Bauman (1974) 176—177 suggests that the sisters were not accused of adultery with Lepidus specifically, merely that his trial served as the context to accuse them of the other adulteries. One wonders, however, why Caligula would have deliberately condoned the adulteries and then used them as the basis of a criminal accusation. Tac. Ann. 14.2.2 states that Agrippina, in her girlhood years, had committed adultery with Lepidus in the hope of gaining power. 245 Suet. Cal. 24.5. 246 Barrett (1989) 108; see also Barrett (1996) 63—70 for a full discussion of the political intrigue surrounding this case. 247 Barrett (1989) 108. A similar dedication of a dagger (this time to Jupiter Capitolinus) was made by Nero after he discovered and suppressed the Pisonian conspiracy of 65; Dio 59.23.8. 248 Suet. Cal. 39.1. 249 Suet. Cal. 24.5. 61 trial. Agrippina was assigned the grim task of carrying Lepidus’ bones back full senatorial 250 to Rome before she proceeded on to exile on one of the Pontian islands. ’ It is implied that 25 she was forced to undertake this task as part of her penalty, a permutation on the statutory penalty made possible by the extra ordinem procedure and the emperor’s direct involvement. For the same reason, it is not clear whether Caligula’s confiscation of his sisters’ property was partial or complete. His death two years later allowed for the pardon and recall of both sisters. More than twenty years later, another imperial woman faced a continuing legal crisis. Nero’s wife Octavia was charged and acquitted of adultery with the slave Eucaerus in 62, but within months faced renewed charges. Since the servile adultery scam had failed, Nero arranged a similar confession from Anicetus, his mother Agrippina’s executioner and prefect 252 This time, they added an accusation that she had attempted to of the fleet at Misenum. bribe the prefect in the hope of gaining the alliance of the fleet, an act of maiestas. Anicetus made his carefully staged confession: fateturque apud amicos, quos velut consilio adhibuerat princeps; “he confessed in the presence of friends whom the princeps had called in as though for a council.” 253 Tacitus’ description is evocative of a trial personally conducted by the emperor in a cognitio extra ordinem procedure. Nero immediately published an edict stating that Octavia had bribed the prefect of Misenum to be her ally in seditious plotting and that she had aborted a fetus conceived from their adultery. Octavia seems not to have been present at her own trial as she had been previously been confined in 250 Barrett (1989) 107 persuasively locates the trial in Mevania and not in Gaul where the sisters’ possessions were auctioned. On extra ordinem procedures, see Jones (1972) 91—95; Strachan-Davidson (1912) 2.157—161. 251 Dio 59.22.8. One wonders if this was a conscious mocking echo of the elder Agrippina returning to Rome carrying the bones of her husband Germanicus. Barrett (1996) 69 discusses details of the location of her exile. 252 Tac. Ann. 14.62—63. 253 Tac. Ann. 14.62.4. 62 Campania under the surveillance of a military guard. She was now banished to the island of Pandateria and was executed a short time later. 254 Anicetus was banished to Sardinia where he non mops exilium toleravit et fato obiit; “endured no destitute exile and met a natural 255 death.” Junia Lepida was caught up in a political move by Nero against her nephew L. Junius Silanus Torquatus and husband C. Cassius Longinus. 256 Nero’s resentment at Cassius caused him to prohibit Cassius’ attendance at Poppaea’s funeral, 257 and he then sent a speech to be read in the senate ordering the removal of Cassius and his nephew from that order and accusing them of defection from the house of Caesar and sowing the seeds of civil war. 258 Then, Tacitus records: qui in Lepidam, Cassii uxorem, Silani amitam, incestum cum fratris fihio et diros sacrorum ritus confingerent. They fabricated against Lepida, wife of Cassius and aunt of Silanus, [charges of] incest with her brother’s son and ominous religious rituals. 259 The senate tried Cassius and Silanus and decreed deportation for both. ° Nero himself was 26 to decide Lepida’s fate, but his decision is not recorded. While Nero had gone to the effort of fabricating charges and had pulled in as accomplices the senators Volcacius Tullinus and Marcellus Cornelius and the equestrian Calpumius Fabatus, it is plausible that the charges against Lepida were allowed to lapse just like the charges against Volcacius, Cornelius and 254 The tragic play Octavia, attributed to Seneca, describes her last days. Tac. Ann. 14.63—64. 256 This is Cassius the famous jurist and head of the Sabinian school ofjuristic thought; see Bauman (1989) ch. 4; for the trial and exile specifically, 107—113; Rogers (1952) 290, 304—305. 257 Fumeaux (1896) s.v. 16.7.1 sees this as a form of renuntio amicitiae; he further notes that this Cassius was the brother of L. Cassius Longinus who was the first husband ofDrusilla (above); see also PIR 2 C 503. 258 Tac. Ann. 16.7.2. Nero may have been unusully paranoid this was only a few months after the Pisonian conspiracy was detected and thwarted; Tac. Ann. 15.48ff. 259 Tac. Ann. 16.8.2. 260 That the harsher punishment of deportalio (including loss of citizenship and property) was meant here is illustrated by the next sentence where Tacitus describes them as deportatus (Ann. 16.9.1). 255 — 63 Calpurnius lapsed after their appeal to Nero. ’ Tacitus does say that the charges against 26 these three were subomed. 262 After this, Lepida disappears from the historical record. The crime of incest would demand a punishment of deportatio. The vague charge of conducting ominous religious rituals could mean that she was suspected of some sort of divinatory inquiry or harmful magic, both of which activities aroused deep anxiety among Roman 263 emperors. Of these seven cases where women were accused of adultery as one of multiple charges, the verdicts of two remain uncertain. Albucilla died in prison after her suicide attempt and the result of her trial (if it was actually completed) is unknown. Her suicide indicates, at the very least, that she felt certain that there was no escape from incipient doom. Junia Lepida’s case was to be decided directly by Nero and nothing of his decision or her punishment is recorded. Five trials unequivocally ended in conviction: Appuleia Varilla, Aemilia Lepida, Claudia Pulchra, Octavia, and Julia Agrippina along with her sister Julia Livilla. The penalties are known for four of these cases (not for Claudia Pulchra) and there must be some significance to the fact that all the penalties are different. The circumstances of the individual cases and the flexibility of the legal process for trying and sentencing are key. 264 The first two cases were tried in the senate under Tiberius. Appuleia Varilla was sentenced to be escorted by her relatives beyond the tfi 200 milestone, which was a penalty considerably lighter than the statutory one of relegatio for adultery, and there seems to have been no consequence to the treason charge. Aemilia Lepida, on the other 261 Tac. Ann. 16.8.3; Bauman (1989) 109; Volcacius: PIR 1 V 623, Cornelius: PIR 2 C 1403, and Calpurnius: PIR 2 C263. 262 Tac. Ann. 16.9.1; 16.8.2. Tacitus may have had direct information about this case since Calpurnius Fabatus was the grandfather of Pliny’s wife and corresponded with Pliny (who in turn corresponded with Tacitus); Bauman (1989) 109. 263 Cramer (1954) 240—241; cf. Bauman (1974) 59—69. 264 Talbert (1984) 478—487. 64 hand, was sentenced to interdictio aquae et ignis on the proposal of Rubellius Blandus, quamquam alii mitius censuissent, “although others judged more leniently.” 265 An appeal from her ex-husband Scaurus gained the boon of preserving her property from confiscation. There was clearly the possibility for a debate in the senate in the sentencing phase of the trial that could result in mitigation or intensification of the statutory penalty. Even more flexible was the cognitio extra ordinem process by which Caligula judged his sisters Agrippina and Livilla on charges of adultery and conspiracy. Ironically, their penalty was the one prescribed by statute: relegatio (with confiscation of a portion of their property). On the other hand, their co-defendant and erstwhile brother-in-law, M. Lepidus, was executed as part of the same trial and on the same charges. Octavia was also judged by an extra ordinem process, and was sentenced by her husband Nero to exile on Pandateria, and soon after she was executed. Her execution, strictly speaking, was outside the law. Adultery as a political charge Between 42 and 31 BC, Antony and Octavian relentlessly accused one another of bribery, adultery and luxury: those who could not govern themselves were not fit to govern Rome. Accusations of immorality were a fundamental part of the political vocabulary of the elite, but Augustus withdrew from these competitive accusations of immorality as he became established in sole power. 266 After adultery became a criminal offense, such accusations could result in serious consequences yet Quintilian suggests that this practice continued under the principate. 267 Bauman asserts that when adultery involved the interests of the state or the emperor, it was withdrawn from the regular procedure, that is, withdrawn from the 265 Tac. Ann. 3.23.2. Edwards (1993) 27. 267 Edwards (1993) 25—26. 266 65 268 This statement may shed light on why adultery cases queue for the quaestio de adulteriis. are so easily deemed ‘political’ because those ones tried in the senate and recorded by Tacitus have already been judged to “involve the interests of the state or the emperor” in some way. Who were the actual targets of the charges? If the case were deemed to have involved the interests of state andlor emperor, was it the woman herself involved, her husband, or her lover? When combined with other charges, especially maiestas-type charges, sex and politics become very entangled. And in Roman elite terms, ‘political’ meant family. Consider how many trials really had adultery as their focus. Were they really about adultery or were they really about politics? Examination of family connections becomes central as it bears on the question of motivation: were women being charged for political reasons with the aim that her husband, father, brother, or son would be politically injured by the pejorative attention to their women? These questions are addressed at length in the section below. Many scholars suggest in their discussions on adultery the idea that the trials we hear 269 The idea of politically-motivated adultery charges can be about are ‘political’ in nature. traced back to Tacitus when he suggests that evidence of adultery has been manufactured against elite women. 270 What does it mean, then, to say that the charges were ‘political’ or that the trials were ‘political’? It is necessary to define ‘political,’ to articulate the assumptions that lie within that description, then re-examine the evidence. In order for charges to be called political, there must be some intention on the part of the accuser to 268 (1968) n.38; for the position under Augustus, see Bauman (1967) 198—200; for the position Baan thereafter, see Bleicken (1962) 53—57. 269 Garnsey (1970) 22—24; Levick (1983) 114; Barrett (1989) 108; (1996) 20, 63. 270 Aquilia (Tac. Ann. 4.42); Claudia Pulchra (4.52); and charges were also manufactured against men: Faenius Rufus (15.50); Antistius Vetus (3.38). 66 derive, from the existence of the charges or the trial that followed, some financial or social advantage to aid his political career. What assumptions lie within the idea that charges of adultery could be political? First is the assumption that a woman would be a valid and viable target; second, that there could be some political gain for the accuser or someone connected to him; third, that there could be political harm for the accused or someone connected to her. How would a man derive benefit from legally attacking a woman for adultery? How does one settle a political score through adultery charges? The key to answering this question is to consider exactly who is the target against whom a political score must be settled, and who was the target of harm: (a) male family members were political targets (b) women themselves were political targets (c) their male lovers were political targets. In all of these possibilities, we must consider some practical details. How would anyone know about the adultery? If the lovers were flagrantly obvious about their meetings, there is no mystery. With the heightened awareness of the risk of prosecution for adultery, it seems reasonable that lovers would attempt to embrace discretion so as not to be punished for their activities. It is unlikely that the guilty parties of a discreet liaison would spontaneously confess and invite prosecution. Paulina, however, did just that. After she had been duped into sleeping with Decius Mundus in the guise of the god Anubis, she immediately told the entire story to her husband so as to pursue vengeance against ’ 27 Mundus. Another possibility is that a man could himself commit adultery with his enemy’s wife; but since he would then be a prosecutable lover, we may discount the idea that politicians were attempting to seduce their enemies’ wives as a prelude to adultery charges. A husband could accidentally discover his wife in flagrante delicto and the Digest contains 271 Jos. AJ 18.3.65—84; Paulina, no. 45. 67 useful guidance on the iris occidendi (the right to kill) that was, at least theoretically, legally allowed in such circumstances. 272 None of the cases under discussion involve women actually discovered in bed with an adulterer. The remaining possibility, and the likeliest one, is the use of spies, likely slaves or freed persons, who would have had access to the private activities of their master or mistress. For example, the freedman Narcissus infonned Claudius, via his concubines, about Messalina’s licentious activities. 273 Similarly, all but one of Octavia’s maids defected to Sabina when Nero made it clear that he preferred her. 274 Politicians must have had spies gathering information about the activities of other elite persons, political enemies and their families. Information is power. The enemy must, however, have arranged for the husband to discover his wife’s adultery, maybe via a report of a tryst witnessed by a slave. 275 The husband was legally required to initiate divorce or be charged with lenocinium. Divorce itself was no scandal, but charges of lenocinium would be. 276 A total of ten cases from this chapter could be considered as ‘political’ on the basis of the identity of the defendant, her male family members and the political circumstances: Appuleia Varilla, Aemilia Lepida, Claudia Pulchra, the daughter of Sextus Marius, the younger Aemilia Lepida, Julia Livilla and Agrippina, Albucilla, Junia Calvina, Octavia, and Junia Lepida. Let us turn our attention to the three possible targets mentioned above against 272 Dig. 48.5.21—25 (Papinian, Ulpian, and Macer); for a full discussion of this topic, see Rizzelli (1997) 9—65. Dio 60 (61 ).3 1.4; someone handed over notes to Claudius infonniug on Messalina’s activities, Tac. Ann. 11.34.2. 274 Dio 62.13.4; only Pythias refused to betray her mistress, even under Tigellinus’ tortures. 275 Compare, for example, Sejanus’ sending people to warn Agrippina, in a display of friendship, that poison had been prepared for her and she should avoid Tiberius’ banquet. Immissis qui per speciem amicitiae monerentparatum ei venenum, vitandas soceri epulas. There is no hint of the status of these people, but their actions were spy-like. 276 Divorce was common: Augustus divorced Scribonia, Tiberius divorced Vipsania, Claudius divorced Urgulanilla and so on. See Treggiari (1991) ch. 13; Gardner (1986) ch. 5; Corbett (1930) ch. 9. 68 whom a political score might be settled by means of adultery charges and examine how each of these cases fits in. (a) Male family members were political targets Any attack on a family member — particularly a female member — reflected on the honour of the family as a whole. If a woman were immoral, then her family had been lax in her upbringing and in supervising and moderating her behaviour. The idea that families control their female members is expressed in the power of the paterfamilias, and in Julio Claudian times, women were referred to family councils for judgment in certain instances. 277 In very early Roman history the family council had been the standard means of dealing with a wayward woman. All of this suggests that a woman’s reputation could and did have an impact on the perceived moral fibre of male family members. Because of this, any attack on a woman might be politically injurious to her brother, husband, or son. On a purely practical level, how can we determine if male family members were injured at all? If the attack on a woman were timed carefully (for example, during the time leading up to an important election in which her husband was a candidate) damage to the outcome of that election could have been substantial. Divorce and prosecution of the errant wife would ensue, thus saving face for the husband, and subsequent elections or political activity would remain untouched. An insidious campaign against an entire family could employ techniques such as this where there is no individual target of the damage. 277 For example, Pomponia Graecina, no. 48, and Appuleia Varilla, no. 12. 69 For example, a glance at the family tree of the Domitii Ahenobarbi shows that several women were criminally prosecuted. 278 One might expect, however, that an astute political mind like Tacitus’ would have noticed if women were being sacrificed on the altars of their menfolk’s political enemies. It is, therefore, difficult to make a case that their male family members suffered politically in any tangible or definable way. Lack of evidence plays a key role: it is not possible to determine if a husband’s (brother’s or son’s) career collapsed because of the woman’s legal entanglements or for other reasons, or, indeed, whether he died or simply dropped out of the historical record because he did nothing more of note. Certainly in the live, thriving political culture of Rome, even unsupported accusations fed the rumour mill and could have damaged reputations, which in turn could have damaged political ambitions. A final possibility requires mention. A woman convicted of adultery would pay a third of her property and half her dowry as a financial penalty. 279 If her husband was counting on using her money as a means to help finance his budding political career, his chances would be dramatically reduced when her money disappeared, especially if he had not yet risen above the expensive office of aedile. Financial motives, however, receive no mention in the sources. Of the ten women listed as possible political targets, three were unmarried so their husbands could not have been harmed financially or politically. Money, therefore, was only one of several possible motivations. The strongest case where one can argue that the male family member is the target of harm from charges involving sexual misconduct is the case of the daughter of Sextus 278 Appendix 2.3, stemma Domitii Ahenobarbi, shows five women out of eleven were charged: Julia Agrippina, Domitia, Domitia Lepida, Claudia Octavia, and Valeria Messalina. 279 Paul Sent. 2.26.14; Bauman (1968) 79—80. 70 ° Tacitus indicates that the father was the real target of this prosecution and the 28 Marius. daughter was collateral damage. Sex. Marius Hispaniarum ditissimus defertur incestasse fihiam et saxo Tarpeio deicitur ac ne dubium haberetur magnitudinem pecuniae malo vertisse aurarias <argentarias>que eius, quamquam publicarentur, sibimet Tiberius seposuit. Sextus Marius, the richest man in the Spains, was denounced for incest with his daughter and was thrown from the Tarpeian Rock; and so, lest there be any doubt that the magnitude of his fortune turned his fate so badly, Tiberius set aside for himself his gold and silver mines, even though they had been publicly confiscated. ’ 28 The reference to the Tarpeian Rock securely places the trial in Rome, well within reach of machinations. That Marius was subject to political enmity is the emperor or other political 282 beyond doubt; an earlier attempt to destroy him had 283 failed. Ownership of the gold and silver mines may have provided additional motivation. 284 Dio presents a completely different story: Marius, friend of the emperor had sent his beautiful daughter away to prevent her being disgraced by Tiberius, and because of this, Marius was charged with incest and both he and his daughter were destroyed. 285 In either version, the father was the real focus of the prosecution and the daughter’s demise was incidental. Similarly, sisters Junia Calvina and Junia Lepida were destroyed in political maneuvres implemented against their menfolk. Calvina was accused of incest with her 280 PIR Marius 2 M 295. 281 Tac.Ann. 6.19.1. 282 Garnsey (1970) 23 suggests that the earlier friendship of Marius and Tiberius and the unusually cruel punishment of precipitation from the Tarpeian Rock indicates the emperor’s personal involvement in the case. Bauman (1996) 60, however, notes that this punishment was not unique but was implemented in two other cases during the reign of Tiberius: L. Pituanius in AD 16, Tac. Ann. 2.32.5; and Aelius Satuminus in 23, Dio 57.22.5. 283 Tac. Ann. 4.36.1 under the year 25. 284 Compare Plin. HN 34.2.4, who mentions Marian copper mines in Spain that produced high quality ore for making sestertii and dupondii while Cypriot copper was used for the as. Gold and silver mines, however, must have supplied the imperial mint at Lugdunum in Gaul. Control over these mines, therefore, would have been important to the emperor. 285 Dio 58.22.3. 71 brother L. Junius Silanus in 49 by Julia Agrippina. 286 The path of harm identified for this charge is quite direct: Calvina was apparently accused only as a means to the end of harming her brother so that his betrothal with Octavia would be broken. Silanus committed suicide. Repercussions for Calvina’s other male relatives, however, are unknown. Her other brothers M. Silanus and D. lunius Silanus Torquatus, both consulars, did nothing of note after Calvina’s trial in 49287 Barely five years later, in 54, Agrippina allegedly engineered the execution of M. Silanus. 288 A decade later, in 64, Torquatus was forced to die at Nero’s behest, a death unrelated to his sister’s downfall. 289 Their nephew L. lunius Silanus Torquatus never attained the consulship, and the year after his uncle’s death, he was accused of incest with his aunt Junia Lepida. ° Tacitus’ opinion is clearly stated: against Silanus, 29 mania simul etfalsa, “accusations were as empty as they were false” and evidence of incest was in Lepidam ... conjingeren4 “fabricated against Lepida.” ’ Lepida was also accused of 29 ominous rites and rituals. Like Calvina, Lepida was accused as a means to the end of harming her male family member but whether either woman actually committed a crime is wholly unclear. In the end, all five siblings from that family were destroyed. When Claudia Pulchra was charged with adultery in 26, her husband Quintilius Varus had been dead for more than sixteen years. Their son of the same name, although wealthy and related to the imperial family, was known only for his oratorical skills and not his 286 Tac. Ann. 12.4; 12.8.1; PIR 2 I 829; Bauman (1992) 180. There is a high degree of irony here: by law, Octavia and Nero were brother and sister even though they shared no parent. Claudius therefore arranged for Octavia to be adopted by another family so as to avoid even the hint of technical incest, Dio 60.33.22. 287 M. lunius Silanus, PIR 2 1 833, consul ordinarius in 46 for the entire year no small mark of distinction; proconsul of Asia in 54. D. lunius Silanus Torquatus, PIR 2 1 837, consul ordinarius 53. Tac.Ann. 13.1.1. 288 289 Tac. Ann. 15.35.1. 2 I 838, son of M. lunius Silanus (833, above); Tac. Ann. 16.8—9. p 290 291 Tac. Ann. 16.8.1—2. — 72 political career. 292 He was attacked in 27 by the delator Domitius Afer, the same man who had prosecuted his mother the previous year. 293 The charges were not accepted and no trial 294 There may be something here: his prosecution could have been connected to occurred. that of his mother — although crucial details are unknown. It may, on the other hand, merely have been a personal vendetta on the part of Domitius Afer against the family (Pulchra and Varus). An examination of the male family members of the other women who were prosecuted does not reveal any definitive political ramifications. For example, Aemilia Lepida’s brother Manius Lepidus (cos. AD 11) defended her at her trial in AD 20 (at which she was convicted) and then went on to be proconsul of Asia in the following year. 295 Of the subsequent career of her second husband, Mamercus Aemilius Scaurus, to whom she had been married at the time of her trial, we know that he was a suffect consul in 21, the year after her trial. 296 He led the prosecution against C. Silanus for repetundae the year after 297 A full decade later in 32, and certainly too late to claim as a repercussion of Lepida’s that. conviction, Scaurus was accused of maiestas; the trial was delayed, but in 34 he and his new wife, Sextia, committed suicide to evade conviction. 298 Lepida’s conviction, therefore, had 292 PIR Q 29; Sen. Contr. 1.3.10. 2 Rutledge (2001) 143—144, 220—223; Tac. Ann. 4.66.1 claims that Afer had squandered the reward money he got from prosecuting Claudia Pulchra and sought another reward for prosecuting her son Varus. 294 Rutledge (2001) 143. 295 Tac. Ann. 3.32.2; Syme (1986) 129 argues for a revision of Groag’s PIR 2 A 369 entry forM.’ Lepidus. Only two of the Tacitean references can conclusively stand for Manius Lepidus: Ann. 3.22.1 and 3.32.2. The other eight passages which were modified by Lipsius, and accepted by Groag, to read M.’ instead of M. are: 1.13.2; 3.11.2; 3.35.1; 3.50.1; 4.20.2; 4.56.3; 6.5.1; 6.27.4. Therefore Marcus was the ‘capax imperii’ of 1.13.2, not Manius. Recent editors E. Koestermann and F. Goodyear have accepted Syme’s revision, as have translators M. Grant and A.J. Woodman. For more information on proconsuls in Asia under Tiberius, see Syme (1983) 191 Roman Papers 4.19. 2 A 404; Tac. Ann. 3.66.1. p1R 296 297 Tac. Ann. 3.66.1 298 Tac. Ann. 6.69.4—7; Suet. Tib. 61.3; Sen. Suas. 2.22; Dio 58.24.3—5; Rogers (1935) 138—140; Sextia, no. 51. 293 73 no discernable negative impact on the political lives of her brother or husband; she had no sons. The younger Aemilia Lepida, accused in 36 of adultery with a slave, was the childless widow of the younger Drusus Caesar, and hence erstwhile sister-in-law of Gaius Caligula, Agrippina, Drusilla and Livilla. She committed suicide rather than present a defense at 299 Her illustrious father Marcus Lepidus had died in 33 and so was unaffected by her trial. ° Tacitus even suggests that he had protected her, despite her infamy, during his 30 scandal; ’ 30 lifetime. She had one brother, M. Lepidus, known to be a favourite friend of Gaius Caligula and who married Drusilla sometime afier 33302 If the accuser had hoped to damage Lepidus’ standing with the young emperor-to-be, he had made a grave miscalculation; immorality did not phase Caligula. Possibly, Lepidus had suffered political eclipse while Tiberius lived, but gained favour again under Caligula. At any rate, no political change is even suggestively linked with his sister Lepida’s conviction. A scant three years later in 39, sisters Livilla and Agrippina faced charges of treason and adultery with this same Lepidus. The sisters were exiled; he was executed. 303 Little is known about the circumstances except that Caligula, their closest male relative, may have been behind the accusations. Their husbands are curiously absent from the scene and neither is recorded as providing any assistance to his wife. 304 At any rate, an adultery conviction would likely have meant the end of both marriages. 305 When Caligula died, the sisters were 299 Ann. 6.40.3. Tac 300 On M. Lepidus, see Syme (1986) 128—140. 301 Tac. Ann. 6.40.3. 302 2 A 371 in which Groag is tentative about the relationship, but Syme (1986) 136 is more certain. PIR 303 Dio 59.22.7; Suet. Cal. 24; 29.5; Sen. Ep. 4.7; Jos. AJ 19.20.49. lack of husbandly assistance may be explained by the speed of the proceedings and the fact that they took place outside of Rome. 305 Dig. 126.96.36.199 (Papinian) says that, in accordance with the lex Julia, one is forbidden to keep a wife who has been convicted of adultery. Dig. 188.8.131.52 (Ulpian) reminds us that, via charges of lenocinium, a penalty is 74 recalled from exile by the new emperor Claudius. In 41, Julia Livilla was again accused of adultery, this time with Seneca the philosopher; she was condemned and exiled. 306 Any suggestion of harm done to male relatives due to the shame of immorality amongst his female family members does not apply to Caligula as he was already flagrantly unconcerned with morality. 307 For this reason, attacking the sisters of the emperor for adultery was a very poor means of politically harming him, and thus may be discounted as a motivation. Appuleia Varilla, great-niece of Augustus, niece of Quintilius Varus and Claudia Pulchra, was convicted of treason and adultery in 17. Her only living male relative at the time was a brother, Sextus Appuleius, consul in 14 and close friend of Augustus. 308 After he reached the consulship, his career disappears from the historical record. Albucilla’s case of 37 will be discussed extensively below; her husband Satrius Secundus had likely died in the post-Sejanian executions and she had no other identifiable family members who might have been harmed by her legal troubles. 309 These eight cases show only three instances, the cases of Maria, Junia Calvina and Junia Lepida, where the male family members of the defendant seem to have been the target of the charges and suffered harm because of the woman’s prosecution. A fourth case, that of Claudia Pulchra, might be construed as another example except that she does not seem to have been the means of harming her son; he was simply prosecuted after his mother. There is the possibility that Afer held a personal grudge against the family that turned his prosecutions into something like a vendetta; this possibility undermines the theory that the appointed by the lex Julia for the husband who keeps his wife after she has been caught in adultery. Both quotes are from second-century jurists and it is not certain whether these measures were included in the original law of 18 BC or whether they were in effect in AD 39. Dio60.8.5. 306 307 See, for example, Suet. Cal. 24, 25, 29, 36. 308 2 A 962; Dio 56.29.5. PIR 309 Syme (1958) 406 n. 11; 753; Furneaux (1896) s.v. 6.47.2. Bauman (1974) 132 suggests that Satrius had not died, but had divorced Albucilla immediately prior to launching charges against her. 75 woman was accused as a means of harming her male family member. The other four cases discussed similarly fail to support this theory. A remaining possibility exists: accusations of adultery were made against women with the intention of politically harming their male family members but were merely unsuccessful. Unfortunately, intentions leave few traces in the historical record but it seems persuasive that none of the cases discussed support the theory at all. Women must have been accused for other reasons. In two instances, women accused of sexual misconduct were protected by their male family members. The younger Aemilia Lepida, Tacitus tells us, quamquam intestabilis, tamen impunita agebat, dum superfuitpater Lepidus: post a delatoribus corripitur, “although notorious, nonetheless she lived unpunished as long as her father Lepidus survived: afterwards, she was seized by accusers.” 310 This statement implies that her father was aware of her activities and prevented accusations being brought against her for as long as he could. One might speculate that his power was greater than that of potential accusers. In another case, the elder Aemilia Lepida was actually defended at trial by her brother, Manius Lepidus. A brother’s defense at a sister’s senatorial trial on adultery charges is a complete reversal of the ancestral custom ofjudging an immoral woman in a family consilium. He could not have believed she was innocent; Tacitus describes her as infamis et nocens (infamous and guilty). These two examples show a shift from men enforcing the moral behaviour of their female family members to men defending their female family members against moral charges brought by outsiders, even though both women seemed unquestionably guilty. Tac. Ann. 6.40.3. 310 76 (b) The women themselves were political targets If the women themselves are the political targets, we need to consider in what way the women were considered ‘political’. They were not allowed to be active in political office, but as Bauman points out, “politics is not only about votes.” ’ At very least, women had 31 access to and influence over (male) people who held power. Control of access is power. For example, the early base of Sej anus’ power was gained by controlling access to Tiberius. If a woman of the imperial family was controlling access to her powerful husband or male family member, a political enemy could easily conclude that the most direct route to his goals was to remove the obstacle. The financial penalties suffered by a woman who was convicted for 312 but her divorce and exile would remove her adultery would have little effect politically, from any political role that she had played by controlling access to her husband (brother or son) or by influencing their opinions. A politically astute woman like Augustus’ wife Livia realized that she must accomplish her political goals carefully without risking prosecution for adultery or stuprum. If we view marriage connections as political, which they certainly were, a way could be made for a remarriage if a current wife were accused and convicted of adultery since the marriage would be ended. This brings up the idea of behind the scenes brokering and problems of evidence thereof. There were likely arrangements made by Livia and her friend Urgulania to many the latter’s granddaughter Urgulanilla to Livia’s grandson Claudius. Vipsania Agrippina approached Tiberius looking for a new husband (but she needed his permission) and Sejanus tried to get permission to marry Livilla. Marriages were made with 311 Bauman (1992) 1—7. See section above. Husbands of imperial women were less likely to depend on their wives’ wealth as a means of prospering in politics. Most of the imperial women, when charged, were married to men who had already attained the consulship and were well-established in politics. A conviction (and the loss of the woman’s dowry and other property) would not be a financial burden to them. 312 77 an eye to political aims, so the opposite must also be true: marriages could be broken for political aims. Augustus forced the divorce between Tiberius and his beloved Vipsania in order to have Tiberius marry Julia. A woman condemned for adultery could not remarry. 313 If the woman was a desirable target for a new marriage due to her family connections, a conviction for adultery would destroy any future marriage connections. It is difficult to tell whether this would be more damaging to the woman herself, for personal reasons, or to her family for the loss of potential marriage alliances. This must remain a theoretical possibility as none of our cases contains explicit evidence on such motives. A final consideration: regardless of the actual target of the accusation, the slaves of the accused woman and her lover would be made available for interrogation, and their testimony could be used against their owner. This could be the real political corkscrew. The enemy might hope to uncover other activities (treason, for example) that could lead to real political damage. Since, as has been argued, adultery was relatively common in elite circles and spies were constantly gathering information, charges of adultery could simply be an excuse to gain access to the slaves of the accused. There are not, however, any cases reported where our sources explicitly state that adultery charges were laid and subsequent information from slaves led to treason charges being brought. Turning to the specific cases on our list, let us examine the possibility that the women themselves were the targets of political damage. The younger Aemilia Lepida must have been the intended target of harm when she was charged with adultery with a slave in 36.’ She only had one living male relative, a brother (discussed above), who was harmed in no discernable way by her disgrace. Her slave lover could not have been a political player or 313 Dig. 23.2.49. 314 Ann. 6.40.4. Tac. 78 threat in any way. Furthermore, if he had been the intended target of harm, there were much easier and more certain ways to inflict harm on a slave. That leaves only Lepida herself as the target. Her position, with close marital ties to the imperial family, may have been perceived as politically threatening to her (unknown) accuser. On the other hand, if we stop looking for political conspiracies behind every bush, she may have been accused by an outraged moralist after engaging in flagrantly scandalous behaviour. Similarly, when Julia Livilla and Agrippina were charged with treason and adultery with M. Lepidus in 39, the sisters themselves seem to have been the targets of political harm. Given the way that Caligula had honoured his sisters and had elevated and adored Drusilla in particular, might these other sisters take her place and become behind the throne advisors and 315 If so, they would have wielded great power confidantes? — as, in fact, Agrippina did in her later life. If the associated charges of treasonous conspiracy are given credence, all three of the accused were valid targets of political harm. Nero’s young wife Octavia was unquestionably the target of harm in the trials against her. She had no children and no close male relatives still living. She may be seen as an innocent pawn in political games being played by Nero and Poppaea; certainly, this is how she is presented in the sources. Her mere existence was a potential political threat because she was the daughter of Claudius and she had significant popular support. 316 A few other cases require brief notice. About Aquilia’s case, nothing is known except that Tiberius increased her sentence for adultery from the standard relegatio to a harsher sentence of exilium. 317 There is no hint of the aggravating factor, nor of the identity 315 Suet. Cal. 15.3, Tib. 54.1; Dio 58.28.8; 59.3.4—5; 59.9.2; Barrett (1989) 62—63. Tac. Ann. 14.61; 14.63.2. 317 Tac. Ann. 4.42.3; Rogers (1935) 91. 316 79 of her family. Her accused lover Varius Ligus escaped prosecution. 318 Aemilia Lepida’s case seems to have been motivated by nothing more political than the impassioned hatred of her first husband P. Sulpicius 319 Quirinius. One might say that prosecuting Vistilia after she registered her name with the aediles as a prostitute could have had political motives. Certainly the magistrates involved took a public stance against her and her attempt to subvert the laws against adultery; this public stand on morality must be considered political given that the senate reacted with a senatus consultum. ° Her husband suffered no lasting harm on 32 account of his wife’s scandalous behaviour as he went on to be the proconsular governor of Gallia Narbonensis, and lived to a ripe old age. ’ If there were political motives or pressures 32 on the part of the husband’s political enemies in instigating the case, there were no lasting repercussions. If the husband suffered embarrassment or public humiliation because of his wife’s situation, at least his career did not die. In all but two cases, the evidence for the women defendants themselves as the targets of intended political harm is tenuous at best, pure speculation at worst. Thus far, we have seen that adultery charges were a poor means of settling a political score against the male family members of a female defendant, and that the female defendants only tentatively had any claim to being a political target. The younger Aemilia Lepida, Julia Livilla and Julia Agrippina stand out as being political targets on their own merits. 318 PIR’ V 189; Syme (1986) 301 and n. 11 suggests that Ligus was a praetorian prefect under Augustus. Martin and Woodman (1989) 201 suggest that this Ligus was the son of the prefect; PIR gives no indication of a son. 319 Tac. Ann. 3.22—23. 320 Levick (1983) and McGinn (1992). 321 Pliny, HN35.20. 80 (c) The accused women’s male lovers were the political targets If the lovers were the intended targets of harm, it seems reasonable to expect that their names and consequences would have been the focus of the historical record. Instead, we find that they all but disappear. In those cases where the adulterers are named, information on their subsequent careers is lacking and an argument from silence is risky in the extreme. They seem to have been relatively unimportant to the main theme of the historians and, of course, men were never expected to be chaste, only to exercise their lust with appropriate women. Their sin was not about sex, it was about poor judgment in the choice of a sexual partner. On the other hand, the adulterer was the man who, if convicted, paid the biggest price. The convicted lover would lose half his property and be exiled to an island (relegatio). Whether he was the intended target or was just collateral damage, his penalty was a heavy one. The financial penalties, which could be large, were secondary to the exile. Any politician would view exile with horror, as it would most likely be the end of his career. In the case of Paulina, her lover Decius Mundus, a prominent knight, seems to have been punished under the Julian adultery law. 322 After his adultery with Paulina was made known, he was sentenced to exile. 323 There is no word on any financial component to his punishment, but certainly any hopes for a political career would have ended; after this incident, he disappears from the historical record. This case, while having no overt political overtones, is a clear example where the adulterer is actually the target of harm because his duplicity enraged his accusers whereas the adulteress Paulina was viewed mainly as a victim. Appuleia Varilla’s lover Manlius was convicted and he was forbidden to reside in Italy or 322 323 PIR D 26; Jos. AJ 18.3.65—84, esp. at 79—80; Gamsey (1970) 22—23. 2 Jos. AJ 18.3.80; Mundus’ accomplices Ide (his freedwoman) and the priests of Isis were crucified, 18.3.79. 81 324 Africa. Manlius appears nowhere else in the historical record, so if he had political ambitions, they never reached fruition either before or after the adultery. The younger Aemilia Lepida’s lover was a slave, and was therefore not worth the effort of a full 325 prosecution. Julia Livilla, sister of Caligula, was condemned for adultery twice, the first time accused with her sister Agrippina and their lover M. Lepidus in 39, and the second time accused with Seneca in 41. Seneca was exiled. 326 Lepidus, on the other hand, was executed; both sisters were banished. Lepidus had been a great favourite of Caligula’s, and was married to the beloved Drusilla. His sister Aemilia
UBC Theses and Dissertations
Women in criminal trials in the Julio-Claudian era Deline, Tracy Lynn 2009
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