Penal Practice and Penal Policy in Ancient Rome

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PENAL PRACTICE AND PENAL POLICY IN ANCIENT ROME

This book assesses Roman penal policy through an in-depth examination of six high-profile criminal cases, ranging from the Bacchanalian trials in 186 BC to the trials for treason and magic in the fourth century AD. Robinson examines Roman criminal legislation (both that laid down by Justinian and that codified and confirmed by him) as well as Roman attitudes, both juristic and philosophical, to the purposes of punishment, deterrence, retribution, reform and protection of the public, and how these attitudes were modified over time. The author also discusses arguments for fixed as against flexible penalties, the changes made in the actual punishments and in those to whom they were applied. In the absence of any extant general theory of criminal jurisprudence as a basis for proper procedure, assessing Roman morality and values from their penal policy has often been problematic. This book is, therefore, an essential tool for any specialist, student or researcher wishing to know more about Roman values from their approach to crime and punishment. O.F. Robinson is Professor Emeritus of Roman Law at Glasgow University. Her research interests are primarily Roman law and Roman law’s later history. Her most important publications are Ancient Rome: City Planning and Administration (1992) and The Criminal Law of Ancient Rome (1995).

PENAL PRACTICE AND PENAL POLICY IN ANCIENT ROME

O.F. Robinson

First published 2007 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business

This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” # 2007 O.F. Robinson All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested

ISBN 0-203-96554-X Master e-book ISBN

ISBN10: 0-415-41651-5 (hbk) ISBN10: 0-203-96554-X (ebk) ISBN13: 978-0-415-41651-1 (hbk) ISBN13: 978-0-203-96554-2 (ebk)

CONTENTS

Acknowledgements

1

viii

Introduction

1

The Bacchanalian affair

7

The sources 7 The cult of Bacchus 8 The story 9 The whore with the heart of gold 9 The authorities are informed 11 Hispala’s story 13 The source of the romance 15 The Senate 16 The reactions 18 The Senate’s resolutions 19 Livy on the Senate’s conduct 22 After-shocks 23 Foreign cults 25 Whose plot? 27 2

Cicero, murder and the courts

30

The system of the standing jury-courts 31 The quaestio perpetua de sicariis et veneficis 33 The lack of a state prosecution service and the moral ambivalence of prosecution 34 The Social War and Sulla’s dictatorship 36 The proscriptions 37 pro Roscio Amerino: the case 40 The narrative 42 Parricide and its penalty 44 Cicero’s speech 47 Cicero’s counter-charge 51 v

CONTENTS

The slaves of Roscius 53 Roscius’ estate 54 3

The trial of Cn. Calpurnius Piso in

AD

20

56

The sources 56 Germanicus and Piso 57 After Germanicus’ death 60 Treason 62 Delators 63 The trial 64 Preliminaries to the trial 64 The opening of the trial 66 The prosecution 67 The defence 68 Piso’s end 69 Subsidiary trials 70 The sentences 72 The survival of the standing jury-courts 75 4

Pliny and repetundae trials before the Senate

78

The crime of res repetundae 78 The disappearance of ‘voluntary’ exile 81 The trial of Marius Priscus and his legate 82 The trial of Classicus and his companions 86 Calumny and other procedural crimes 89 Further subsidiary trials 90 The trial of Julius Bassus 91 The trial of Varenus Rufus 94 A trial before the emperor 96 The Senate and the ordo 98 5

Acta Martyrum Christianorum: the extension of torture The sources 100 The background: astrologers and philosophers 101 The different stages of the criminal law concerning Christianity 102 Death and torture, and the links with social status 105 Decius, the gods and the Christians 108 Pionius 111 The lapsed 115 Valerian and the criminalization of Christianity 116 Cyprian 118 The ‘great’ persecution 120 vi

99

CONTENTS

The first edict, and the martyrdom of Felix 121 The later edicts 122 Agape and her companions 124 Some brief accounts: Irenaeus of Sirmium; Phileas of Thmuis; Crispina 125 Popular pressures and the rule of law 127 6

Some trials for treason and magic in the fourth century

130

The historical background 130 Fourth-century issues 132 The sources 135 Constantius and the trials of 359 137 The prohibitions on magic under Constantine and his sons 140 Astrology as science 142 Valentinian I and the trials at Rome for magic and adultery 144 Formalities in the criminal procedure of the fourth century 147 The trials at Antioch in 371–72 149 The origins 149 Theodorus on trial 151 Dangerous writings 153 The resumption of the inquiries 154 The continued prohibition of pagan sacrifices and divination 156 7

Justinian the legislator

158

Justinian and the Corpus Iuris Civilis 158 Justinian’s own legislation in Code, Book 9 159 Justinian’s legislation on criminal matters in his Novels 164 Justinian’s Code and the Theodosian Code 168 Justinian and the jurists 174 8

Crime and punishment

179

The philosophy of punishment 180 Penalties in Republican Rome 184 The growth of the death penalty: punishment in the Empire 187 Law and general ideas of punishment 193 Summary 195 Glossary Bibliography Index of Sources General Index

198 202 228 243

vii

ACKNOWLEDGEMENTS

I am a slow worker. This book has been some ten years in the making; The Criminal Law of Ancient Rome (1995) was a foundation, without which I could not have explored the theme more deeply. I am afraid that I cannot remember all the people who have helped me over this period, but I can give particular thanks to those who have commented and criticized in this last period: John Dillon, Robert Frakes, Jan and Elizabeth Kalbheim, Lawrence Keppie, Adele Scafuro, Catherine Steel, Peter Walsh, Alan Watson and of course my husband, Sebastian. Particular thanks are due to Alan, il mio padrone, who has read all the chapters in draft, sometimes more than once. That I have not always taken his advice is probably due to my inflexible obstinacy, but I am deeply grateful, even when I have had to disagree. I also thank the community at the Leopold-Wenger-Institut in Munich, the University of Glasgow for giving me sabbaticals, my students for asking awkward questions, Jan and Elizabeth for putting up with me, and Sebastian again and always.

viii

INTRODUCTION

This is a book about crime and punishment in ancient Rome rather than a book about Roman criminal law. That is to say, it does not set out to be a textbook, or to describe criminal law generally, or even to be engaged with all aspects of the crimes described.1 Rather it sets out to show what the Romans thought about crime, what they saw as particularly heinous and – if possible – why. It does this by telling a number of stories, ‘famous trials’ so to speak, looking at attitudes, procedures and punishments. (Because they are stories, I have tried to reproduce the flavour of the originals.) It explains the technical details of the law only as far as is necessary for understanding the issues raised in particular trials. The stories chosen have to a large extent been dictated by the sources that survive, literary or legislative. For one thing, if excessive hypothesising is to be avoided, it is necessary to look for a fairly full treatment by the ancient authors. And for another, unusually full treatment of certain episodes suggests that the Romans found them particularly interesting. It does not mean that the cases treated were typical crimes, in the sense of the daily diet of the courts, but it does mean that the treatment was representative of Roman attitudes. The Romans were not, apparently, given to introspection; we must therefore deduce their attitudes from what they found worth reporting at length. Three chapters, chapters 1, 3 and 6, are based primarily on literary sources, historians’ descriptions. Livy gives extraordinary space to the Bacchanalian affair, and the truth of certain aspects of his account is confirmed by the existence of a contemporary inscription recording the Senate’s decisions. The same is true of Tacitus’ lengthy account of the trial of Piso and its background, concerning which the inscription recording the official decision of the Senate was discovered only quite recently. Ammianus seems to have been an eye-witness to the trials of AD 371–72 at Antioch, which he recounts at length, but we have no external control on his version, although 1

I have given a general introduction in my The Criminal Law of Ancient Rome (London and Baltimore, 1995).

1

INTRODUCTION

for this period relevant legislation survives in the Theodosian Code. The Acts of the Christian Martyrs, our main source in chapter 5, are rather different; while not court records, they purport to describe how the noble martyrs faced their bloodthirsty judges. They are not precisely literary sources; their viewpoint is not that of the governing classes, and the stories of the trials had a specific purpose. In chapters 2 and 4, our information is based on a speech of Cicero and some letters of Pliny the Younger. Both were advocates, arguing particular cases on somebody else’s behalf. There is no external check on their version of events; one must rely on their need for plausibility if their speeches were to be effective. Justinian, the subject of chapter 7, was not merely an emperor who enacted legislation of his own, in the Code; he stamped with his authority, and so turned into statute law, the juristic works found in the Digest, thus endorsing criminal law and criminal jurisprudence drawn from a period extending over more than half a millennium. (These successive textual layers inevitably produced inconsistencies, which is, interestingly, one reason why the Corpus Iuris Civilis, and particularly the Digest, was so influential in subsequent centuries, because its users, such as Popes and Emperors, natural lawyers and positivists, could find support for conflicting views.) Justinian’s own projection of himself is to some extent counterbalanced by Procopius’ hostile picture in the Secret History. The first four chapters are focused on the city of Rome. It was on Rome that the judicial process was centred, whatever form it might take. Chapter 4 by definition deals with events in the provinces, abuses of office by provincial governors, but the trials were in Rome and their consequences felt there. In the legal system depicted in chapters 5 and 6, the regular judge was the provincial governor, now commonly described simply as judge (iudex), although his jurisdiction might be superseded by special commissioners. The change is a real one, as Mommsen saw, from an enlarged citystate ruling its provinces to an Empire in which ‘Roman’ is a conceptual rather than a geographical term. And Justinian, of course, ruled this Roman world from Constantinople. Some of the questions raised, if not necessarily fully answered, include: What was behind the apparently sudden decision to persecute the worshippers of Bacchus in 186 BC? And why was the punishment so harsh? Was the violent society described by Cicero in defence of Sextus Roscius of Ameria simply a product of the civil wars? And why were the standard penalties of the Republican courts so – relatively – light? It is certain that Tiberius had real plots to face, as had Augustus before him, but how far did he act as a tyrant, repressing the victims of a system of delation which encouraged groundless charges? Why were links with astrology so damning, even when the prevailing Stoic philosophy saw men’s fates as determined by their stars? Pliny participated in some notable trials for extortion in the provinces; what was the relationship between criminal justice for citizens 2

INTRODUCTION

and for non-citizens? Christians enter the scene. Why were they persecuted? Were their trials subject to due process? Why do we hear so frequently that they were punished with death? In the fourth century treason trials feature again; why, for Christian emperors, were astrology and magic so suspect? Why did penalties appear so arbitrary? Justinian is the great lawgiver, the emperor who left us the Corpus Iuris Civilis. Why did he not legislate more on criminal law? What were his views on punishment? Why is there such a stark contrast between respect for due process and lack of respect for human rights? Why did the Romans go so far in making a spectacle out of punishment? The range of crimes dealt with in this book is restricted. The charges are essentially confined to refusal to conform to the official religion – something which had seditious aspects – murder, treason (with elements of magic), and extortion from provincials. This is partly because we are limited to the information provided by our sources, information which would interest Roman readers, but it is also linked to the definition of crime. For the Romans ‘crime’ meant actions which threatened social well-being and stability; the repression of crime aimed to protect society more than its individual members, who were traditionally expected to be responsible for their own safety. Indeed, as we shall see, self-help remained a valued characteristic of the citizen, even if its exercise was put under limits. The Romans, at least of the Republic and early Empire, perhaps later too, preferred to deal with much that we would call petty crime, particularly crime against individual proprietary rights, by civil process, as delict. This was not unreasonable. In most cases of theft or assault or damage to property, reparation – which is what a civil action provides – is likely to be the first thing the victim wants. While it is true that thieves as a class are unlikely to be able to make reparation, the existence at Rome of noxal liability – the legal responsibility of a paterfamilias or slave-owner for the delicts of his child or slave – meant that the victim would often be able to sue someone who was able to pay up.2 While it may be politically incorrect to say so, it seems very likely that the great majority of petty crimes at Rome were committed by slaves. Not so much because their natural servility of character marked them out to be slaves, as many of the ancients would have had it, but because many slaves must have been treated as nonpersons, something which leads to non-responsibility; others will have been the first in most households to suffer in hard times. The institution of slavery, combined with the delictual liability of owners, thus seems to have made the chances of reparation in ancient Rome somewhat higher than in the modern world. Moreover, where reparation was not sought, most street crime could be dealt with summarily, by the tresviri capitales or the Urban Prefect. These magistrates had virtually unlimited powers to deal with (presumed) slaves or foreigners – one thinks of the negative image of asylum 2

E.g. Albanese (1967), or any Roman law textbook’s treatment of noxal liability.

3

INTRODUCTION

seekers currently put forward by the popular press – who had committed offences on the street; they could lock them up, flog them, or execute them, because such persons were outside the law. The close intervention of the state in the details of its citizens’ – or subjects’ – conduct is an invention of the nineteenth century, of postIndustrial Revolution living; it also depends on the creation of police forces for social control.3 Factory conditions led to Factory Acts, and later Health and Safety Acts; education moved from being a privilege to a requirement, hence truancy; trains, and then the car, led to traffic regulations, and so to drunken driving.4 Taking the long view back, it is the nineteenth and twentieth centuries that are out of step, that are novel. (As for what the ‘war against drugs’ has done to criminalize half a population, the lesson of Prohibition has not been learned.) Sir George Mackenzie in seventeenth-century Scotland could reasonably base his treatise on the Roman model of crime – serious offences that threatened the social order;5 in his day, a gentleman carried a sword to protect himself against individual aggressors. Hume’s understanding of criminal law6 at the end of the eighteenth century represented the early stages of the modern view; he saw it as aimed at protecting the individual. And yet, one of the most interesting points made by a recent study of the history of criminal law in Antiquity is that at Rome there existed a general concept of submission to the law. Not only was there not a criminal class in any meaningful sense, although of course there were many individual criminals, but – unlike the medieval and early modern periods – vendetta and private warfare are absent from the social scene. It was a rougher world than that of twentieth-century Western European countries in peacetime, but it was not so different in expecting the procedures of the courts to settle major disputes.7 Roman attitudes seem reasonably consistent. Religion was something that needed to be controlled by the state. In pagan Rome the Roman gods must be worshipped, and in due form, for the health of Rome. In the Christian Empire the emperors were concerned to repress heretics as well as, or even more than, pagans. Magic was real, and dangerous; it was often linked with astrology. Astrology in its turn was linked with philosophy, Stoic philosophy, which was often linked to opposition, based on Republican principles, to imperial rule. Magic and nocturnal sacrifices were clear signs of a threat to the commonwealth. Another recurring issue is the ambivalent status of 3 4 5 6 7

See L. Farmer, Criminal Law, Tradition and Legal Order: crime and the genius of Scots law, 1747 to the present (CUP, 1997). See O.F. Robinson, T.D. Fergus and W.M. Gordon, European Legal History (2000, 3rd edn, Butterworth/OUP), ch. 17: ‘New trends in law’. G. Mackenzie, The Laws and Customs of Scotland in Matters Criminal (Edinburgh, 1678). D. Hume, Commentaries on the Law of Scotland respecting Crimes (Edinburgh, 1797). Krause (2004), 203–5.

4

INTRODUCTION

informers. In the absence of a public prosecution service, delation was recognized as a necessary civic duty, but it was not admirable and its rewards were tainted, as will be apparent in almost every chapter. The force of popular opinion was important. It came from a smaller segment of the population than nowadays, where there is access to TV, easy-to-read newspapers and the internet, but still it was created by more than just the makers and shakers of Roman society. There was a general lack of respect for human life, human suffering, human rights – as is obvious from the institution of slavery – that was combined, rather oddly to our eyes, with a strong feeling for the dignity of the upper ranks of society. Due process was important, but perhaps more from the perspective of noblesse oblige than the upholding of rights. There was widespread acceptance of harsh punishments, at least for the offender who, the upper ranks felt was not ‘one of us’. Privileges originally linked simply to citizenship became, as the population of the Roman Empire increased, restricted to those of some superior status; at the lowest level of these honestiores were the honourably discharged veterans of the legions, and town councillors (known as decurions or curiales). In turn those privileges became eroded, both by the greater use of physical punishment and by the lessening of respect for status. The spread to the upper classes of the use of torture was slower than the spread of the death penalty, for torture must humiliate, but spread it did. One problem we face is that attitudes in the ancient world cannot be quantified. At best, they can be identified as simply conventional or as realistic. Our sources are too limited, too partial, for any objective, statistically valid, recognition of attitudes. Perhaps, however, this is a positive feature. We have snapshots of attitudes to specific events, and these come from different sources with different perspectives, from different times and different places. By definition, our recorded cases are unusual in themselves; otherwise they would not have been recorded. But this may be strictly a legal, not a social, problem; it means that we cannot tell how the normal crime was prosecuted, how the normal trial was run, and the normal crime punished. Because, however, our chosen trials aroused such interest, they do, or should, give some answers to questions about attitudes, about policy. They do not paint a uniform picture, but they are striking because they represent something of great importance to their recorders. So if the same themes recur, this may be due not to bias in our sources but rather to the continuity of attitudes. Ambiguity remains because attitudes are perceptions of what is significant, of what is criminal, of what society must abhor. The attitudes of the upper ranks explain policy, insofar as there was policy and not simply reaction. Popular opinion, whether in the shape of the ‘crowd’,8 or the curial class, played a part, but the populace, whatever one means by the term, was not in a position directly to reform the law. Our source material limits our 8

Millar (1998).

5

INTRODUCTION

technical understanding, which in turn limits our understanding of what Romans themselves thought was happening and what ought to be happening. But even if we cannot achieve much more than to perceive some facts and some interpretations through a swirling mist, this is an exciting challenge. This book thus provides six glimpses of Roman crimes as seen through the eyes of the Romans themselves, and then a legislator’s view. The final chapter attempts to analyse Roman society’s attitudes to crime and to punishment, and to understand the gap between criminological theory and penal practice. Crime, now as then, is a topic on the margins of various disciplines, giving rise to legal, social and political concerns. For me, as a Roman lawyer, the legal aspect predominates, but all aspects are fascinating for the historian.

6

Chapter 1 THE BACCHANALIAN AFFAIR

Our first case is hardly a matter of criminal law in the strict sense. It is legally interesting because it provided, or was made to provide, a model for some future developments, but it is doubtful if there was any pre-existing legal justification for the actions taken. On the other hand, the episode does undoubtedly reveal Roman attitudes – as much, perhaps, those of the end of the Republic as of the early second century BC – to crime and punishment. We are given by Livy an extraordinarily detailed story, told in highly coloured language, designed to produce reactions of shock, horror, and prurience, and at the same time to show the Senate as the guardian of the Roman people.

The sources In 186 BC there occurred one of the most bizarre events in the domestic history of Rome. The cult of Dionysus or Bacchus was found to be a public danger, and was vigorously suppressed, not only in Rome but also throughout Italy. Interestingly, the name Liber does not appear in Livy’s account, but Liber, a traditional Roman god, had long been identified with Dionysus, and his rites, together with those of his sister Libera, had been celebrated, particularly with theatrical performances – ludi scaenici – probably since the fifth century BC. The Liberalia, largely a plebeian cult, came immediately after the Ides of March, the day when Republican magistrates entered office, and the festival carried a symbolic reference to the freedom that followed the end of the Monarchy, the regifugium, celebrated at the end of February. ‘If the Bacchic cult was to be distinguished from the traditional worship of Liber, some creative reinterpretation was going to be necessary.’1 Our knowledge of the affair comes from a contemporary inscription recording the substance of the Senate’s resolutions, found in southern Italy, 1

Wiseman (1998), 41ff. Tertullian, ap. 6.9–10 (cf. almost identical nat.deorum 1.10.16), whose sources may well have been wider than ours, remarked: ‘Liberum patrem cum mysteriis suis consules senatus auctoritate non modo urbe sed universa Italia eliminaverunt.’

7

T H E B A C C H A N A L I A N A F FA I R

at Tiriolo near Bruttium,2 and from the extraordinarily lengthy account of Livy.3 While we cannot be sure that these two testimonies are completely independent, Livy does not directly quote the senatusconsulta, and so it seems quite likely that he had only heard of them in his sources, not actually seen them. We shall turn first to Livy’s account.

The cult of Bacchus Rumours of some sort were clearly already afoot at the time of the elections for 186, for the new consuls, Spurius Postumius Albinus and Quintus Marcius Philippus, were not assigned to the troublesome and as yet unpacified region of Liguria, as in the previous year, but were both appointed to the investigation of secret conspiracies.4 Livy then gives a background of sorts.5 It began with the arrival in Etruria of an obscure Greek, a petty priest and fortune-teller, not the master of any of those many arts which that most educated people has brought us for the cultivation of our minds and bodies; nor was he someone who, while he might mislead men’s minds, would do so by openly teaching his creed and setting out publicly its benefits and doctrines, but rather the celebrant of secret nocturnal rites. No date is given, but the familiarity with the cult of Bacchus that Plautus assumes in his audiences,6 and the archaeological evidence of the Dionysiac rites, including many vases,7 suggest that this refers to a time around the middle of the third century, and certainly some decades before our story. Livy then moves to what seems to have been the popular perception of these rites.8 2 3 4

5 6

7 8

CIL X 104; ILS 18; FIRA i, no.30. Livy 39.8–19, and some further mentions of the affair. ‘Consulibus ambobus quaestio de clandestinis coniurationibus decreta est’ (Livy 39.8.3). Arcellaschi (1990), 38, dates the first stirrings of a scandal to 190 BC; he also, at p. 41, stresses that the cult was of Liber Pater. Bauman (1990), 338, wonders whether dealing with this problem had been a campaign promise by Postumius and Philippus. FreyburgerGalland (1986), 205, thinks that the production, perhaps in 188, of Plautus’ Bacchides may have helped provoke the affair. Livy 39.8.3–4. E.g. Plautus, Amph. 702ff; Aul. 406–13; Bacch. 52ff; 368ff; Men. 828–41. The stereotype portrait of the Bacchants was hardly favourable, which makes Toynbee (1965), 391f, wonder if popular opinion was turning against them; even, at p. 393, that they may have been seen by the majority of citizens as a nuisance, as some see Carnival or Fasching. Bruhl (1953), 58–69; 70–81 describes Etruscan links; Gruen (1990) 50; Pailler (1988), 3ff on the Bolsena excavations. Livy 39.8.5–6.

8


There were initiations, at first communicated to only a few, but which then began to be made widely available to both men and women. In order to entice the minds of as many as possible, religion was laced with the pleasures of wine and feasting. When once wine had fired their minds, and darkness and the intermingling of men with women, and of the young with their elders, had extinguished all feelings of shame, then all kinds of depravity began to make their first appearance, since everyone had ready to hand the pleasure suited to gratifying the most susceptible side of his or her nature. Certainly this is roughly what the world at large believed of the Bacchantes and their cult of frenzy. But the Graeco-Roman world tolerated such cults,9 even as they tut-tutted. However, Livy then leads us into stranger territory, bearing little relation to the cult itself. Promiscuous sex involving freeborn men and women was not the only kind of mischief. Perjured witnesses, forged seals, wills and instruments all came from the same workshop; and from it also came poisonings and domestic murders, so that sometimes it was not even possible to find the bodies for burial. The believers dared to commit many crimes by cunning, and not a few by violence. Such violence was regularly concealed by shrieks of worship and the din of drums and cymbals, so no sounds of protest could be heard from those screaming at the rapes and the murders.10 Ululation and loud music were a normal part of Dionysiac worship; it seems that Livy is seeking to blacken everything.

The story The whore with the heart of gold ‘The infection of this evil made its way, like some contagious disease, from Etruria into Rome.’ In fact, as we have remarked, the cult was already widespread in Italy, and many scholars hold that it came from Campania.11 ‘At first the size of the City, with its greater capacity and ability to absorb such evils, concealed them; but eventually evidence reached the consul Postumius in much the following way.’12 And now we get the story of the 9 10 11 12

See Burkert (1987), 8–10, 112–13, on initiation generally. Livy 39.8.7–8. E.g. Frank (1927). Livy 39.9.1.

9


innocent young man and the (older) whore with the heart of gold. Publius Aebutius, whose father had received his horse at public expense,13 had been orphaned while he was still under puberty. Subsequently, on the death of his tutors, he had been brought up under the guardianship14 of his mother, Duronia, and of his stepfather, Titus Sempronius Rutilius. His mother was besotted with her husband, and the stepfather had so mismanaged the ‘guardianship’ that he could not produce his accounts for it, and thus desired that his pupil either be done away with or be bound to him by some kind of unbreakable tie. The Bacchanalian rites offered one way of corrupting him. Aebutius’ mother summoned the young man and told him that, when he was ill, she had made a vow on his behalf that she would initiate him into the Bacchic cult as soon as he had regained his health, and this oath must now be discharged. He must abstain from sexual relations for ten days, and on the tenth day he would be ritually purified, and be led by her into the shrine.15 Now, Livy goes on, there was a well-known prostitute, Faecenia Hispala, a freedwoman. She had become accustomed to the trade while she was still a slave (though she was too good for it), and she continued to support herself in the same way even after her manumission. Because they were neighbours she developed an intimate friendship with Aebutius, but without doing the slightest harm to the young man’s property or reputation; for she loved and desired him of her own accord. Indeed, because his family were very mean in providing for him, he was supported by the generosity of the courtesan. The influence of their intimacy was such that, after her patron’s death, when she was under no man’s authority, she petitioned the tribunes and praetor for a tutor, and then made a will naming Aebutius as her sole heir. Because they had these assurances of their love, neither of them kept any secrets from the other, and consequently the young man told her light-heartedly not to be surprised if he absented himself for a few nights; he was to be initiated in the Bacchic rites for religious reasons, in discharge of a vow made for his recovery from illness.16 Thus far the romantic background. But when Hispala heard this, she was appalled. ‘Heaven help us!’ she said. It would be better for them both to die rather than for him to do such a thing; and she called down curses and vengeance on the heads of those who had urged him to do it. The young man, astonished both by her language and by the intensity of her distress, told her not to curse, since it was his mother who had ordered him to do it, with the agreement of his stepfather. ‘Then your stepfather’, she said, ‘– for 13 14

15 16

Which meant that he was of equestrian rank, and in the upper range. This must simply mean that, after he reached puberty, he continued to live with and be looked after by his mother, and that his stepfather thus had practical control of his estate. Women did not have the legal capacity to be guardians until the Later Empire. See Livy 39.9.2–4. See Livy 39.9.5–10.2.

10


it may perhaps not be right to accuse your mother – is working to ruin your honour, your reputation, your hopes, and your life itself.’ He was still more amazed by this and asked her what was the matter. She begged the gods and goddesses for peace and pardon if, impelled by her love for him, she told him things that should remain unspoken. Then she said that when she was a slave she had accompanied her mistress to the Bacchic shrine, but had never visited it since becoming free. She knew that it was the source of every kind of debauchery; and it was well known that for the past two years no-one had been initiated there who was over the age of twenty. As each person was introduced, he or she was handed over to the priests like a sacrificial victim; they were led away to a place which was filled with wailings, blasts of musical instruments, and the throbbing of cymbals and drums in order that the screams of anyone being forcibly raped (cum per vim stuprum inferatur) could not be heard. She therefore besought him to frustrate the plan in any way he could, and not to plunge himself into a situation where he would be compelled first to suffer and then to inflict all kinds of obscene acts. And she did not let the young man go until he had promised that he would refrain from the mysteries.17 One must have doubts about how up to date her information really was, as her attendance (and that only as her mistress’ maid) was explicitly some time before. After Aebutius had returned home, his mother began to talk of what was going to happen so far as the rites were concerned. He said that he was not going to do any of those things, and that he did not intend to be initiated. While he was speaking, his stepfather came in and his mother immediately exclaimed that Aebutius was unable to sleep apart from Hispala even for ten nights; that he was so steeped in the allurements and poisons of that sheviper as to have lost all reverence for his parent, his stepfather and the gods. His mother poured abuse on him from one side, his stepfather from the other, and they drove him with his four slaves out of the house.18 The authorities are informed The family row then took a more public dimension. The young man went to seek refuge with his aunt Aebutia, and explained why he had been thrown out by his mother. On her advice, he reported the matter next day to the consul Postumius,19 with no witnesses present. The consul sent him 17 18 19

See Livy 39.10.2–9. See Livy 39.11.1–2. We hear that it was an earlier Postumius, the dictator successful at the battle of Lake Regillus, whose master of horse was T. Aebutius (Livy 2.19.3), who had vowed a temple to Ceres, Liber and Libera – Hellenized into the Greek gods Demeter, Dionysus and Persephone – (Dion. Hal. 6.17.2), which was consecrated three years later in 493 BC (Dion. Hal. 6.94.3). Bruhl (1953), 31f, describes this as the only official recognition of Dionysus; he also doubts the traditional dating, and thinks the temple was probably of the late fifth century.

11


away with orders to return in two days’ time, and then asked his mother-inlaw, Sulpicia, a very respectable woman, whether she knew an old lady from the Aventine named Aebutia. When she replied that she knew her to be a virtuous woman of old-fashioned morals, the consul said that he must have a meeting with her; Sulpicia was therefore to send a messenger to Aebutia requesting her to call. Aebutia came promptly; after a short while, the consul, acting as if he had come in by chance, raised the subject of her brother’s son Aebutius. Tears came to the woman’s eyes, and she began to lament what had happened to the young man, who was at present staying with her; he had been robbed of his fortune by those who should least of all have done so, and been thrown out by his mother because, being a virtuous youth, he had refused to be initiated into what – if the gods would excuse her for saying so – were rumoured to be disgusting rites.20 The consul, thinking that Aebutius sounded a reliable source of information, sent Aebutia away, and next asked his mother-in-law to summon to her house the freedwoman Hispala, who also came from the Aventine and was well known in the neighbourhood; she too was someone whom he wished to interrogate. Hispala was alarmed at being summoned to the home of so noble and important a lady without knowing the reason; but then, when she saw the lictors in the anteroom, the consul’s companions and the consul himself, she nearly fainted. She was conducted into the interior of the house where the consul, inviting his mother-in-law to be present, told her that she had no cause for alarm provided that she could bring herself to speak the truth. She should trust either Sulpicia, a woman of high standing, or himself; but she was to give him an account of what was customarily done by the Bacchanalians during their nocturnal rites in the grove of Stimula (or Semele, mother of Bacchus). When Hispala heard this, she was seized with such fear and trembling that for a long time she could not even open her mouth. Finally she pulled herself together and said that she had been initiated as a slave-girl, along with her mistress, when she was still very young; but from the time she was manumitted a number of years ago she had known nothing of what went on there. The consul praised her for not denying that she had herself been initiated, but ordered her to give similarly truthful answers to his other questions. When she denied knowing anything more, he said that if her guilt was proved by the evidence of someone else she would not receive the same pardon or consideration as if she confessed of her own accord; and he added, misleadingly, that the man who had heard the story from her had already given him a full account of it.21 Hispala, having no doubt that this must refer to Aebutius (which was true), fell at Sulpicia’s feet and began to beg her not to let a freedwoman’s conversation with her lover be turned into something so serious, involving a 20 21

See Livy 39.11.3–7. See Livy 39.12.1–8.

12


capital crime.22 The things which she had said to him had been to frighten him, not because she really knew anything. At this, Postumius flew into a rage, or appeared to – he had already showed himself a skilled interrogator. Did she still think that she was joking with her lover, rather than talking to the consul in the home of a most important lady? Sulpicia helped the frightened woman to her feet, spoke encouraging words to her and soothed the anger of her son-in-law. When at last Hispala had pulled herself together, after fiercely condemning the treachery of Aebutius who had thus repaid her after all she had done for him, she said that her fear of the gods, whose secret initiations she would be revealing, was great, but she was even more afraid of the human beings who might tear her apart as an informer. She therefore begged both Sulpicia and the consul to send her somewhere away from Italy, where she could spend the rest of her life in safety. The consul told her to keep her spirits up; he personally would ensure that she could safely live in Rome. At this, Hispala revealed how the rites had begun.23 Again, one must ask what credence should be given to her account; what did she know, and what did she perhaps believe. As North has remarked,24 ‘had the Roman authorities no better method of finding out how many people attended the meetings of a group they knew to be meeting regularly on the Aventine than to ask a freedwoman of dubious character?’ Some of what follows will certainly have been public knowledge. Hispala’s story At first, Hispala recounted, the place of worship had been reserved for women and it was not the custom for any man to be admitted to it. There were three fixed days a year on which initiations in the Bacchic rites took place, in the daytime, and it was customary for the priesthood to be held by a succession of married women. However, Paculla Annia from Campania, when she held the priesthood, had changed everything, supposedly at the behest of the gods. She had been the first to initiate men – her sons Minius and Herennius Cerrinius – and she had converted the daytime ritual into one at night.25 She also increased the initiation-days from three a year to five a month.26 From the time that the rites were held in common, men 22

23 24 25

26

‘sermonem in rem non seriam modo sed capitalem etiam verti’. Perhaps nocturnal meetings were of themselves capital offences, as Mantovani (1989), 19–21, thinks, but the point is not made elsewhere in the story. See Livy 39.13.1–7. North (1979), 88. These claims of novelty seem untrue, at least for the cult’s practice in Etruria, according to Livy himself (39.8.3–5); it may perhaps have been innovatory at Rome. Cf. Euripides, Bacch. 469 and 485–6, but he of course referred to Thebes and Greece generally. And surely it was always a cult with nocturnal meetings. Bauman (1990), 338, considers it probable that these changes had been made two years before the scandal broke, along with the imposition of an age-limit of twenty for initiations.

13


mingling with women, and with the freedom of the darkness as well, there was no kind of crime or wrongdoing that they did not commit. The men raped men more than women; any who were less willing to suffer this abuse and less active in wickedness were sacrificed as victims – it is very curious, this obsession with rape.27 The highest principle of their religion was to regard nothing as forbidden. The men, as if their minds were possessed, would convulse their bodies and utter prophecies; the married women, dressed as Bacchants with their hair dishevelled, would rush down to the Tiber carrying blazing torches which they would plunge into the river, then carry them away with their flames still burning, because they contained live sulphur mixed with lime. Some men, who refused to take part in the conspiracy, or to be associated with the crimes or to suffer rape, were said to be ‘carried off by the gods’; they were bound to a machine and whisked out of sight into hidden caves. (This could well be a ritual death and rebirth.28) So far the description of Bacchic worship seems dramatized but not unrelated to the facts as generally understood.29 But she went on to say that the number involved was very large, almost amounting to an alternative state, and included some men and women from noble families.30 If Hispala had not been attending the rites, this must have been mere rumour, and the notion of an alternative state is ridiculous. Within the last two years they had adopted a rule that no one above the age of twenty should be initiated, since they were trying to catch those whose age made them susceptible to error and to corruption.31 But, as Gruen has pointed out,32 this age-limit tends to the consolidation of the numbers of initiates rather than their expansion. He also points out that Hispala had only attended the mysteries with her owner; it was a cult for the respectable rather than the outcasts of society, and the young men initiated were clearly citizens, at least for the most part. What would such persons have to gain by overthrowing the res publica? 27 28 29 30

31 32

Is rape, the use of force, the excuse for enjoyment? Walsh (1994), 5. Pausanias gives an analogous account, 9.39.5–14, of his initiation at the oracle of Trophonios in Boeotia. The blazing torches which survived immersion in water would have been, as Livy in fact described them, previously treated with sulphur and calcium sulphate. Bauman (1990), 341, points out that Livy elsewhere describes the initiates as including not only Aebutius’ mother, Duronia, but also her second husband (the wicked stepfather) Titus Sempronius Rutilius; Bauman links him with a certain Caius Sempronius Rutilius who was tribune in 189 but whose career went no further (he could have died?). Bauman also points out that Marcus and Gaius Atinius, later described as among the leaders of the fellowship, were from a prominent plebeian family, several of whom held the praetorship at the beginning of the second century, and who, furthermore, were linked to the Sempronii. But see Walsh (1996), 186. See Livy 39.13.8–14. Gruen (1990), 53; youthful initiation was certainly normal later. Festugie`re (1954), 95– 96, reckons that this, like infant baptism, was designed to give the god’s protection to the young. Burkert (1987), 52, does wonder about its significance.

14


When she had finished her evidence, Hispala prostrated herself again at the consul’s feet and begged him, as she had before, to send her abroad. Postumius, however, asked his mother-in-law to clear some part of her house, so that Hispala could move in. Sulpicia made available the attic flat; the stairs leading to the street were blocked off, and the only access was from within the house itself. All Hispala’s belongings were immediately brought here and her household slaves sent for, while Aebutius was ordered to move to the house of one of the consul’s clients.33 The source of the romance All this is given as the background to the consul’s discovery that there was something dangerous going on, and the scene then moves to the Senate. But this is perhaps the point to ask if the romantic story is pure fiction. It is certainly a story typical of the New Comedy, a plot which Plautus could have used: the innocent young man, the scheming stepparent and the weak or wicked real parent, the prostitute with the heart of gold. Where would Livy have taken this from? For it is virtually inconceivable that he would have invented it. One possibility: the worship of Liber seems early to have taken the form of a stage festival,34 and indeed there survives a line of the famous playwright Naevius on it: ‘We speak with a free tongue at the games of Freedom.’35 Wiseman holds that the story came to Livy ultimately from the annalist A. Postumius Albinus, consul in 151 and relative of the consul Sp. Postumius Albinus the protagonist. Further, he thinks that the annalist Postumius may have recorded as fact the details of a play written, perhaps for the games of 185, to assuage plebeian feeling after the Senate’s high-handed conduct in suppressing what was a largely plebeian cult,36 but Livy would not have known that his ultimate source lay in drama. Such plays did exist; Naevius and others had written up real events into stage performances.37 If one accepts this hypothesis, it even becomes possible that the sinister details given by Hispala are a mockery of the alleged crimes; the playwright, whoever he was, may have been ironic, distancing his story and characters from reality. 33 34 35 36

37

See Livy 39.14.1–3. Wiseman (1998), 39. Festus, L. 103: ‘Libera lingua loquimur ludis Liberalibus.’ Wiseman (1998), 47–8; he also sees in Ovid, Fasti 6.485–550 a reference to a similar play subsequent to the suppression of the Bacchanalia, 48–51. Walsh (1994), 10f, can divide Livy’s account into a drama in four acts. See also Walsh (1996), 195ff, and, on the annalist tradition, 192–93 and 201–02, pointing out that all the annalists feature the concept of moral decline, a theme which Livy also stressed. Wiseman (1998), 1ff; 52; Walsh (1996), 200. But these were set well back in the past, and I think one must agree with Fantham (2000) that it was inconceivable that ‘living Roman magistrates or matrons would be shown on the stage’; Keaveney (2003) is also dismissive.

15


The details given of the Bacchic rites are designed to cause the maximum shock and horror, and to evoke a lubricious reaction; they are what a hostile audience might want to believe. After all, Livy, a historian loyally supportive of the Senate, was concerned to justify the suppression of the cult. But most of the cultic practices, as has been pointed out recently by such as Gruen and North,38 were almost certainly ritual, the formalized re-enactment of an original dark story (to some extent comparable to the Christian eucharist). The romance’s invention, even if Aebutius and Hispala were real people,39 may be explained away with a reasonable degree of plausibility. The difficulty with the story given by Livy concerns, not the sexual elements, whether true or exaggerated for prurience’s sake, but the forgeries and the related crimes. However, Walsh has demonstrated that Livy’s account from the meeting of the Senate onwards is historical; Livy drew on the late annalists Valerius Antias and Claudius Quadrigarius who had had access to the acta senatus.40 The early annalists, writing in Greek, wove a dramatic version of the affair, and they included Postumius Albinus. The middle annalists, writing in Latin, may have sharpened the picture of moral decline – and Livy saw moral decline as general from the early second century – by including conventional crimes such as murder and forgery.41

The Senate So, the consul Postumius (whether or not he had the informers safely under his wing) then reported the affair to the Senate, both the information he had received and the results of his own investigations. Livy tells us that the senators as individuals were much alarmed, both on the public account by fear of social unrest, and also because they feared the involvement of their own families. (This readiness to believe such a thing also suggests that the cult was well-known.) Anyway, the Senate passed a vote of thanks to Postumius, and decreed that the consuls should undertake an extraordinary commission to inquire into the Bacchanalians and their nocturnal rites. They were to see that no harm came to Aebutius and Hispala, and to encourage with rewards other informers. Priests of the cult, male and female, were to be hunted out, not only in Rome but throughout all the towns and districts (per omnia fora et conciliabula), and put in the consuls’ charge. Moreover, edicts were to be issued in Rome and throughout Italy prohibiting initiates from assembling or celebrating their rites. And, above 38 39 40 41

Gruen (1990), 63; North (1979), 88ff. Bauman (1990) tends to credulity. Which seems probable, from Livy’s recording that one of the SCC gave them rewards. Walsh (1994), 8; (1996), 193–94. As Gelzer (1936), 287, suggested. Firmicus Maternus, err. prof. 6.9, believed in the existence of scelera. However, St Augustine (CD 6.9) reports of Varro, who presumably had no axe to grind: ‘ubi Varro ipse confitetur a bacchantibus talia fieri non potuisse nisi mente commota.’

16


all, investigation was to be made into those who had come together or conspired to commit sexual or other crimes.42 This was truly a quaestio extraordinaria, an extraordinary and unprecedented act by the Senate, assuming jurisdiction not only in Rome and its territory but also throughout Italy. (There had indeed been a quaestio extraordinaria in the previous year, the trial of L. Cornelius Scipio Asiaticus,43 presided over by a praetor appointed to this office by the Senate but this, nevertheless, rested on a lex passed by the people,44 and it did not extend beyond Roman territory.) The consuls then ordered the curule aediles to hunt out all the priests of the cult and hold them under house arrest, ready for interrogation; the plebeian aediles were to prevent any secret celebrations. The tresviri capitales were commanded to place guards throughout the City to make sure there were no night meetings, and to prevent fires;45 the quinqueviri uls cis Tiberim,46 their assistants, were to guard buildings – temples, perhaps – in their respective districts.47 This can only have inflamed the situation; what real threat can have been envisaged? Having given these orders, the consuls then summoned the populace to a contio, an informal assembly, and the consul (Postumius it must be, although his name is not given) addressed them. In this highly emotive speech he accepted that the Bacchic cult was well known to exist in the City48 as well as, over a long period, in Italy, but he sought to arouse their fears by stressing the numbers, the many thousands, of initiates, although he then went on to alleviate these fears somewhat by pointing out that the majority were women – the source of this mischief (primum igitur mulierum magna pars est, et is fons mali huiusce fuit) – and that most of the men were effeminate, debauched, fanatical, stupefied. But the numbers were potentially dangerous, as were all unofficial gatherings, gatherings unsupervised by lawful authority, and when these gatherings were nocturnal, and attended by women as well as men . . . Youths initiated into the cult were not fit to bear arms, to fight for the chastity of Roman wives and children. Yet effeminacy dishonoured only individuals, whereas whatsoever evil had been done in recent years from lust, or fraud, or 42

43 44

45 46 47 48

‘qui coierint coniuraverintve quo stuprum flagitiumve inferretur.’ (Livy 39.14.3–8). Bruhl (1953), 116, points out that the term coniuratio was literally accurate; the Bacchantes took oaths together, as was forbidden by the SC. Called Asiagenes in some MSS. The sources are confused about the charges against him; extortion seems more likely than treason, but politics undoubtedly played a part. Livy 38.54–55. Bauman (1983), 199ff, argues, following Kunkel (1962), 58, that at this period there was no difference between a quaestio created by plebiscitum and one established by the Senate; this must be implausible. Bequignon (1941), 195, argues, also unconvincingly, that the Bacchanalian investigation was founded on a lex. Cf. Robinson (1977). A college of very minor magistrates indeed – see Robinson (1992), 175. See Livy 39.14.9–10. Which ‘makes a nonsense of Livy’s earlier claim that the consuls first got wind of the Bacchanalia through the revelations of Aebutius and Hispala’ (Walsh (1996), 195).

17


wickedness, sprang from this cult; so far there had only been crimes against individuals, but soon the res publica itself would be at risk. Let the citizens worry about whether their friends had been infected; when the assembly had scattered to its homes, then the cultists might be gathering. While it was reasonable to be wary if wrongdoings were ascribed to the will of the gods, there had been innumerable decrees of the pontiffs, resolutions of the Senate, opinions of the augurs which would free people from scruple about turning against this cult. How often, in days of old, had magistrates forbidden foreign worship, banned petty priests from the Forum, and burned their prophetic books, for men most learned in all human and divine law were accustomed to hold that nothing was so destructive of true service to the gods as where sacrifices were performed not by native but by foreign ritual. The people were therefore not to fear the anger of the gods, the true gods of Rome, when they saw measures being taken against the followers of Bacchus. The Senate had entrusted the investigation of the affair to the consuls, and the consuls would crush the cult, while the lesser magistrates would prevent night assemblies. Individual citizens would do their duty by obeying lawful orders.49 The whole speech suggests that the res publica is in danger, that there is conspiracy, but Postumius carefully avoids any actual mention of sedition, still less treason; it is feared for the future, but has not yet occurred. This limitation is confirmed by Cicero’s reference to the affair.50 It has indeed been suggested that the legal basis for the Senate’s action rested simply on the decemviral prohibition of nocturnal gatherings.51 Before the assembly was dismissed, the decree of the Senate establishing the quaestio extraordinaria was read, rewards were offered for information, help to would-be fugitives was forbidden, and those who failed to respond to a summons, unless for good cause, were warned that they would be condemned in their absence.52 This last was rather different from the situation in developed Roman criminal law. The reactions There followed panic throughout the City, and this spread, as fast as letters could be sent, throughout Italy. This panic is less surprising when one remembers how very traditional was the worship of Liber, and the importance, particularly to the plebeians, of the festival of the Liberalia and its theatrical games.53 49 50

51 52 53

See Livy 39.15.1–14. Cicero, leg. 2.15.37. After approving mystery religions for his ideal state, but not when performed by women at night (leg. 2.14.35), he went on to stress that female reputations must be guarded even during the day, and that the mysteries of Ceres must be firmly traditional, as declared by the severity of the ancient decree of the Senate on the Bacchanals. Cicero, it is generally reckoned, drew on different annalists from Livy. ‘ne qui in urbe coetus nocturnos agitaret’ (XII T 8.26); see Mantovani (1989), 19–21. See Livy 39.16.1–13; 39.17.1–3. On theatrical performances as normative ‘games’, see Robinson (1992), 160–2.

18


The panic was presumably felt more strongly by the followers of the new form of the cult; it is not clear if the more than 7,000 persons affected, as reported by Livy, all fell into this category. Many people attempted to flee, but many were arrested by the guards the tresviri had placed on the gates. Some people, both men and women, committed suicide after being reported as initiates. The ringleaders, Marcus and Gaius Atinius of the Roman plebeians – new characters – and the Faliscan Lucius Opicernius with the Campanian Minius Cerrinius were all arrested. Hispala’s story had named as the leaders Minius and Herennius Cerrinius, together with their mother, Paculla Annia, but clearly that information was out of date.54 However, so many people had escaped that the praetors, urban and peregrine, acting on the authority of the Senate, declared a iustitium, the adjournment of all court business for thirty days; this strongly suggests that significant numbers of the senatorial and equestrian classes were among those missing. So many had fled, and so few were responding to the summons to report themselves, that the consuls went on circuit around Italy to make investigations and to conduct trials.55 This was an outrageous usurpation of authority, since at this period Rome had no rights over the other Italian cities, who were in theory her free allies. The consuls destroyed all Bacchanalian sites of worship, unless there was an ancient altar or consecrated image.56 The Senate decreed that for the future there should be no Bacchanalia in Rome or Italy. Anyone who considered such a rite to be traditional and necessary, and one which he could not forgo without having to atone for a breach of religious duty, must report this to the Urban Praetor who in turn was to refer the matter to the Senate. If, with not less than one hundred senators present, permission was granted, such a person might carry out the rites, but with no more than five persons taking part in the sacrifice, and there was to be no common fund, and nobody was to be master of the rites or priest.57

The Senate’s resolutions For this we have confirmation from the Bruttium inscription.58 In relation to the issue of the Senate’s jurisdiction, Toynbee discusses the status of the 54 55 56 57

58

See Livy 39.17.4–7. See Livy 39.18.1–2: ‘circa fora profisci ibique quaerere et iudicia exercere’. Livy 39.18.3–7. Livy 39.18.8–9. On this point of the necessity of following one’s traditional religious duties, one could compare the Romans’ reluctant toleration of Judaism (except of course when there was armed revolt). CIL X 104; ILS 18. The translation here is based on that of Walsh (1994). It has been pointed out by Accame (1938), 223, that Livy, following the annalists, is probably closer to the originals than is this inscription.

19


territory where this particular inscription was found, the ager Teuranus. It, like various other territories, might have been annexed to the ager Romanus after the end of the Hannibalic War; on the other hand we know that Tarentum was not so annexed, and Bacchanalians were pursued there in 184 BC and after.59 Although it is normally referred to as the SC de Bacchanalibus, it is widely agreed that what we have here is not one senatusconsult but a conflation of a number of senatorial resolutions, issued in the form of a letter by the consuls to the local authorities.60 In translation the inscription reads: The consuls Quintus Marcius, son of Lucius, and Spurius Postumus, son of Lucius, consulted the Senate on the seventh day of October in the temple of Bellona. The recording officers were Marcus Claudius, son of Marcus, Lucius Valerius, son of Publius, and Quintus Minucius, son of Gaius. Concerning the Bacchanalia they resolved that this edict be issued to allies bound by treaty.61 ‘Let none of them be minded to conduct a Bacchic rite. If there are some who say it is necessary for them to hold such a rite, they must come to the Urban Praetor at Rome and, when their statement has been heard, our Senate is to decide such matters, provided that no fewer than 100 senators are present when the matter is discussed. Let no person, whether Roman citizen, or one of Latin status, or one of the allies, be minded to attend Bacchic rites without approaching the Urban Praetor, and without his authorisation in compliance with the decision of the Senate, provided that no fewer than 100 senators are present when the matter is discussed.’ Resolved. ‘No man shall be a priest; no man or woman shall be master of ceremonies; none among them shall be minded to administer a common fund. Nor shall they be minded to appoint any man or woman a master or vice-master of ceremonies. Nor shall they be minded henceforward to conspire, make vows together, or make guarantees or promises; nor be minded to pledge their faith with one another. No-one must be minded to celebrate rites in secret;

59 60

61

Toynbee (1965), 120 n. 6; 397 n. 2. On balance, it seems not erected on Roman territory. See particularly Fraenkel (1932), Gelzer (1936), Martina (1998), Albanese (2001). Fraenkel held that there had been a degree of editing by the receiving magistrate, denied by Keil (1933) and Gelzer. Albanese even suggests, not very convincingly, that we have only the second tablet from a longer edict, and that the first part dealt with the physical objects used in the Bacchic cult. Albanese (2001), 7ff, translates foederati differently: ‘that this edict be issued to those sworn to the Bacchanalian cult’, pointing out that the prohibitions are addressed to individuals not communities; this is also the view of Toynbee (1965), 400.

20


nor let anyone be minded to celebrate them publicly, privately, or outside the City, without approaching the Urban Praetor and without his authorisation in compliance with the decision of the Senate, provided that no fewer than 100 senators are present when the matter is discussed.’ Resolved. ‘Let nobody be minded to celebrate rites in numbers greater than five in all, men and women; more than two men and more than three women must not attend there, unless by the decision of the Urban Praetor and of the Senate, as has been written above.’ Resolved. You [the socii] must proclaim these measures in your assembly at least by the third market-day, and so that you may be aware of the decision of the Senate, it was as follows: ‘If there are any persons who in this matter act otherwise than has been written above, the senators have resolved that a capital charge must be laid against them.’ And the Senate resolved that it be right that you engrave this proclamation on a bronze tablet, and bid it to be nailed up where it can most easily be read; and you are to ensure that any Bacchic object, other than what is sacred there, should be dismantled, as has been written above, within ten days of the tablets being given to you. (In the territory of the Teurani.) There are certain oddities about these decisions. One is the limitation on the number of women present to three; why should there not be five women? Traditionally it was a female cult. This may have been to stress that the celebration of the cult must be a matter of religious necessity, not the excuse for a sodalitas, or even the equivalent of a sociable Mothers’ Union meeting. Then, the capital nature of non-compliance is presented almost as a parenthesis.62 Yet the death penalty seems summary and of an unlimited nature, covering future as well as past deeds – a huge arrogation of power. Nor is there any mention of conventional crimes, flagitia, in the inscription, but they might have been subject to appeal (provocatio), and therefore ignored in a consular edict, that is, if they ever existed. Hardly an oddity, but an ambiguity, is the question of whether the consular letter is to be proclaimed within three weeks, or over a period of three weeks. The cult was to be repressed, but not annihilated. North remarks that it seems re-established by the middle of the second century BC, for its followers, along with others, were expelled from Rome in 139.63 Archaeological

62 63

Strachan-Davidson (1912), I 232f, thinks that this was the original SC at the start of the affair. North (1979), citing Valerius Maximus 1.3.3.

21


evidence confirms that the cult was widely familiar in Rome of the first century BC; Bruhl refers to the evidence from many statues and paintings of this period.64 Indeed Spartacus had a ‘wife’ who was a Bacchic priestess.65 And the cult continued under the Empire.66 Livy on the Senate’s conduct Let us return to Livy’s account. Those who admitted to having been initiated, to having joined the coniuratio, but who denied that they had committed any crimes, were left in prison,67 but those convicted – by more than rumour? – of stuprum or murder, perjury and false witness, forged seals, substitution of wills and other frauds, were put to death, and we are told by Livy that this group, both men and women, formed the majority. (The absence of provocatio was presumably because no tribune of the people was minded to use his auxilium.68) The women were, if possible, handed over to their families for private execution, which otherwise took place in public.69 These people, therefore, were convicted of specific crimes, not of membership of the cult. Nippel, indeed, sees the affair in simple criminal terms. He sees no sedition, no protest movement. Indeed, despite the evidence of the SC, he sees no evidence for the suppression of a cult, but rather the strengthening of the official cults of the nobility; the stamping of Romanness on foreigners.70 However, there is no mention in the inscription, in the resolutions of the Senate, of any flagitia, which would surely have been the case had they been the main target. So how credible is Livy’s story? If there really were orgiastic murders on any wide scale, then it is not unreasonable to accept the consequent forgery of a victim’s will in some individual cases. But to believe that this was the policy of the cultists stretches my imagination too far. ‘The purpose is to generate funds for the cult.’71 Bauman argues that the prohibition of a common fund was for this end, and that the restriction to five on the

64 65 66

67

68

69 70 71

Bruhl (1953), 119; 145–59. Plut. Vit.Crassus 8. Virgil’s Bucolics, Eclogue 5, like the Villa of the Mysteries at Pompeii, shows some survival of Bacchic worship, but Pailler (1988), 745, holds it to have been diversified and banalised in the course of the centuries; see also Foucher (1981). For how long is not mentioned. Presumably, sooner or later, the tribunes will have used their auxilium for the prisoners’ release, but see Santalucia (1988) and (1999); cf. Eisenhut (1972). Bauman (1990), 338, fn. 11, rather strangely explains that Mommsen justifies the absence of provocatio as being because the crimes were non-political, and Kunkel as because only common law crimes were involved. See Livy 39.18.4–6; Val. Max. 6.3.7. Nippel (1997), 65–73; his position is closer to that of North than of Gruen. Bauman (1990), 342.

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numbers permitted to meet for worship72 was to prevent legally valid mancipatory wills. But to make a mancipatory will one needed six adult male citizens, the one known as the libripens and five witnesses,73 so that argument, particularly when the five persons could be of any status or either sex, is very weak. The Senate could not have been thinking in these terms because, in this context, women were non-entities; not even ten women could have made a will. The generation of funds is an explanation that fits modern, especially American, cults, but is unconvincing for Republican Rome, especially as there seems to have been no one centre of worship. Other arguments supporting the reality of the flagitia are also weak. Nocturnal meetings were not previously unknown, and the wholesale effeminisation of men of military age I find totally incredible – most young men in my observation enjoy their virility. As to ‘the initiation of masses of slaves who were already in a state of unrest’, it is indisputable that there was unrest during and after the hardships of the Punic Wars, and this provides an explanation for the insurrections in Apulia and elsewhere throughout the 180s, but Livy’s own evidence argues for relatively few slaves as initiates of the Bacchic rites; the initiates are generally described as of good family, or at least liable for military service. And the presence of slaves as initiates (not in itself necessarily shocking; later collegia had slave as well as free members) would anyway be largely irrelevant to the alleged crimes of stuprum and forgery. Livy seems to have absorbed what had become a tradition concerning the flagitia; he was, as has been remarked already, concerned to justify the Senate’s suppression of the Bacchanals, and to deplore the moral decline of Rome.

After-shocks A further decree of the Senate, proposed by Marcius Philippus, postponed the general consideration of informers until Postumius had completed his investigations and returned to Rome. Marcius had been active in Etruria, where the ‘Bacchic’ version of the cult had originated; Postumius was concerned with suppression in southern Italy,74 where indeed he seems not to have been totally successful. For this was not quite the end of Livy’s account of the affair. In 184 BC Lucius Postumius, pro-praetor with Tarentum as his province, had to deal with a conspiracy of shepherds, after a slave insurrection in Apulia, and he also wound up what was left of the Bacchanalian investigation. Frank thought that these shepherds ‘were probably Tarentine and Locrian slaves who were persecuted because of the worship of Dionysus’;

72 73 74

Livy 39.18.9; ILS 18, ll.19–21. Gaius 2.102–8 for the technicalities of the mancipatory will. Livy 39.20.1 and 39.23.1 and 3.

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Toynbee held that ‘shepherds’ was a term of art for Bacchic initiates.75 Lucius Postumius condemned some of those brought before him as Bacchants, and presumably executed them; others he sent to the Senate at Rome where the Urban Praetor, Publius Cornelius, threw them all into the prison.76 Perhaps those held in prison were in due course released, after tribunician intercession; but we hear nothing more. Further, there may or may not be a connection with the fact that in 184 BC there was seen a need to assign a praetor, Quintus Naevius Matho, to investigate cases of poisoning, as well as to his proper province, governing Sardinia; the poisonings were alleged in the City as well as in the municipalities and rural districts, and, if Valerius Antias is to be trusted, says Livy, Naevius condemned some 2,000 persons.77 In 181 BC the praetor, a certain L. Duronius, selected for Apulia, still had Bacchanalians to pursue, seeds left over from former troubles sprouting afresh; he was ordered to extirpate them, so that there should be no further spread.78 It is possible that there was also a Bacchanalian connection to the poisoning inquiries assigned by the Senate to separate praetors for within and outside the City in 180 BC.79 Or it may be that these alleged poisonings were not so much connected with the cult itself as linked to the fraudulent wills and other forgeries described. It was clearly an uneasy time. The Senate also decided that Minius Cerrinius, as a Campanian, should be sent in chains to Ardea, whose magistrates were to keep him under close guard, against suicide as well as escape.80 What eventually happened to him is not recorded, but this suggests strongly that he had not yet been convicted of anything; the Senate, indeed, was primarily concerned with the behaviour of Romans. After Postumius’ return Aebutius and Hispala were given financial rewards by senatorial decree: 100,000 asses each, sufficient to be rated in the first census class, to be given them from the aerarium by the quaestors. The consul would negotiate with the tribunes that they propose to the people that Aebutius be treated as though he had completed his military service, so that he would not have to serve, and the censor would not assign him a public horse; this reward was almost certainly barbed.81

75

76 77 78 79 80 81

Frank (1927), 130; Toynbee (1965), 321, citing Wuilleumier (1939). The connection is accepted by many authors, e.g. Dume´zil (1966), and Bauman (1990), but others, such as Gruen (1990), think the linked tasks mere coincidence. Livy 39.29.8; 39.41.6–7. Livy 39.38.3; 39.41.5–6. Livy 40.19.9–10. Presumably this praetor was some kind of kin to Aebutius’ mother. Livy 40.37.4–7, and 40.43.2–3; also 40.44.6 of 179 BC. Livy 39.19.2. The Senate was prepared to give him the money, but did not actually want him to do his military service and become eligible for a political career; he was tainted by having been an informer. See Watson (2005).

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Hispala was granted the right to alienate her property, presumably even against her tutor’s wishes, to marry outside the gens or clan, to choose a tutor, just as though these had been granted by a husband in his will; also, explicitly, she could marry someone freeborn.82 It is not entirely clear what the details mean, but she seems to be being put in the position of someone freeborn and sui iuris; further, she was to be under the protection of the consuls and praetors for her lifetime.83 The people approved all these measures; questions of immunity or reward for other informers were left to the consuls.84 The basic suppression of the cult was on the authority of the Senate alone. These grants do not seem to be anachronistic, but this merely confirms that the romance, if it is a fiction, was constructed close to the time it describes. Foreign cults The factual basis of Livy’s account – we have already considered the romantic story element – is confirmed by the objective evidence of the inscription giving the substance of the texts of the SCC. We can be certain that the Bacchanalian cult was suppressed in 186 BC, and that only carefully limited exemptions from the ban on the cult were permitted, although to traditional worshippers of Liber these must have seemed extremely oppressive. The Romans (like most polytheists) were generally tolerant of people’s private worship and, for the most part, of other public worship. They needed, for the health of their society, the Roman gods to be worshipped in the traditional way in the temples of Rome, but were generally indifferent to other religious practice.85 Yet, as we have seen, Livy records the consul as saying: How often in the times of our fathers and grandfathers was the task assigned to the magistrates of forbidding the introduction of

82

83

84 85

When Hispala was manumitted, her mistress, being a woman, although she could have had full ownership of a slave, could not have been the tutor of her freedwoman; further, all women outside paternal power (patria potestas) needed, at this period, a tutor to supervise quite a wide range of transactions, including the alienation of property classified as res mancipi. A tutor must have been appointed for her at manumission; we do not know why she later found herself without one. The right to marry a freeborn man seems likely to be aimed at Aebutius; at this period it was socially disapproved of but not illegal for an upper-class man to marry a freedwoman, but then Hispala was not a respectable woman of freed status, but an ex-prostitute. The meaning of this grant is obscure partly because it is the only use of the term enuptio gentis; see Watson (1974). Since her social status was low, it is less likely that her reward was double-edged. Livy 39.19.3–7. Robinson (1992), 199, 201. See, however, ch. 5.

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foreign cults, of excluding petty priests and fortune-tellers from the Forum, the Circus and the City, of searching out and burning books of prophecies, and of stamping out every method of sacrifice except that performed in the Roman way.86 And indeed there were examples of such repression, both in the period referred to and in Livy’s own time (he died in AD 17).87 The burning of the Pythagorean Books, also known as the books of Numa, took place in 181 88 BC, clearly in the shadow of the Bacchanalian affair. Magi were expelled from Rome and other measures taken against them as early as 213 BC,89 and this happened again in 139 BC.90 In 154 BC, or soon after, the Senate ordered the demolition of the first stone theatre, newly constructed for the ludi Megalenses, the ‘games’ for the Great Mother, because it posed a danger to public morals.91 In 97 BC human sacrifice was formally banned as a religious excess;92 this fits with Plutarch’s story that the Romans were about to punish some barbarian tribe for human sacrifice, but when they heard it had been ancestral custom, they remitted the punishment, although forbidding the practice for the future.93 In Livy’s own time, there were various attacks on the shrines of Isis at Rome.94 Augustus in 28 BC forbade Egyptian rites within the pomerium, and in 21 BC this ban was extended to the suburbs. Druidism was prohibited by both Augustus and Tiberius.95 But this seems pretty well the sum of suppression over approximately 150 years. Repression, whether in the second or first century, was thus relatively unusual. Indeed, in 212 BC, under the guidance of the Sibylline Books, games for Apollo of Delphi, an undoubtedly Greek god, had been officially introduced. In 204 BC an even more foreign cult was introduced, the 86 87

88

89

90 91 92 93 94 95

Livy 39.16.8. Evans (1993) suggests that Livy modelled much of his story on the ‘correct’ view of the Catiline affair, but this concerned sedition rather than religion; nevertheless ‘coniuratio‘ was the link. Livy 40.29.2–14. Dume´zil (1966), 496, links Pythagoreanism and the cult of Bacchus. As the Loeb editors (E.T. Sage and A.C. Schlesinger), p. 91 n. 6, point out, there seems strangely to have been no formal consultation of the pontiffs; the Senate simply relied on the praetor’s oath as to the books’ subversive character. But then, there is no mention of any formal consultation in 186 BC. Livy 25.1.6–12. But in 213 the restrictions were limited to the City, there was no provision for active investigation, and Livy does not report on the results; furthermore, Rome was then still seriously at war, not triumphant as in 186. Val. Max. 1.3.3. Livy epit. 48; Val. Max. 2.4.2. Pliny, HN 30.12, but magic was involved here. Plutarch, Quaestiones romanae (Moralia iv), 83. See Beard (1994), 763, with sources. Val. Max. 1.3.4; Tac. Ann. 2.85; Dio Cassius 53.2.4; 54.6.6; Pliny HN 30.4.13; Suet. Claud. 25.5; Pliny HN 29.12.54.

26


bringing of the Magna Mater – she turned out to be a black stone – from Phrygia,96 at whose games the curule aediles may have introduced the divisive and bitterly resented segregation of senatorial seats.97 Dionysus of Halicarnassus, in his account of the establishment of Roman religion, is instructive on how the Senate wished to control religious practices. He first remarks that among Roman citizens there are to be seen ‘no ecstatic transports, no Corybantic frenzies, no begging under the colour of religion, no bacchanals or secret mysteries, no all-night vigils of men and women together in the temples, nor any other mummery of this kind’.98 He then reports that there were naturally innumerable peoples coming to Rome under the necessity of practising the worship of their ancestral gods in their traditional ways, yet Rome celebrates them in accordance with her own traditions, after banishing all fabulous claptrap. The rites of Mater Magna are a case in point, for the praetors perform sacrifices and celebrate games in her honour every year, according to Roman customs, but the priest and priestess of the goddess are Phrygians, and it is they who carry her image in procession through the City, begging alms in her name according to their custom, and accompanied by musicians. ‘But by a law and decree of the Senate no native Roman walks in procession through the City, arrayed in a particoloured robe, begging alms or escorted by flute-players, or worships the goddess with Phrygian ceremonies.’99 Thus was a mystery religion tamed. Hence a religious motive for the repression of the Bacchanals is by no means impossible, because it was not exactly a sudden and severe reversal of previous policy, but it seems highly unlikely that it was the sole motive. Yet, as the SC shows, this was the form, whatever the pretext, whatever the hidden agenda, that the repression took. Further, two of those who assisted at the drafting, Valerius Flaccus and Claudius Marcellus, were members of the college of pontiffs; the pontifex maximus at that time was P. Licinius Crassus Dives, consul in 205 with Scipio Africanus. He may well be the learned lawyer referred to by Postumius; he was already a pontiff in 213 BC.

Whose plot? It is widely agreed by most modern scholars that the affair was rigged, and rigged by the Senate rather than individual members of it. For example, as 96 97 98 99

Livy 29.14.5–14. Her temple was consecrated in 191 (Livy 36.36.4). Wiseman (1998), 40. Dion. Hal. 2.19.2. Dion. Hal. 2.19.4–5 – all too undignified! Cf. Val. Max. 7.7.6 on the exile of the slave who castrated himself for the goddess.

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Bauman points out, the three men listed as assisting the two consuls in drawing up the Senate’s resolution were ‘L. Valerius Flaccus (cos. 195), mentor and running mate of Cato; M. Claudius Marcellus (cos. 196), an ally of Flaminius; and Q. Minucius Rufus (cos. 197), an ally of Scipio Africanus’.100 There is no mention anywhere in Livy of conflicting opinion; there is no credible opportunity in his account to see separate groups looking to Cato and to the Scipios. Of course, there may have been some level of disagreement, but it was not out in the open. The Senate acted to repress the ‘threat’ to social stability that it had discovered, both in Roman territory and outside it, among the allies. The Senate alone created the quaestio extraordinaria, gave the consuls a mandate to act as they thought fit to implement the Senate’s instructions, and gave powers to punish without any form of appeal. The Senate exercised this jurisdiction over Roman, Latin and other Italian citizens. The populace was informed, but not consulted, and no lex was passed, as the inscription confirms, until after the event. The affair was political rather than legal. As has been said,101 Livy gives us a much better chance of understanding the senatorial propaganda of the period than of reconstructing what actually happened. The Senate was flexing its muscles in the new triumphalism that followed victory in the First and Second Punic wars; the Senate was, as a body, concerned to exercise its control over its individual members for the (relatively speaking) common good.102 This is not to deny that religion was a sincerely held means of expressing, of illuminating, the Senate’s role as the guardian of all things Roman, particularly religious; it was after all the Senate which had played the leading role in the establishment of the Magna Mater. The danger in the Bacchic worship had been that it was both widespread and not under any official control; its priests might, just might, have been up to anything, and hence the particular attack on its priests or other officers.103 Some senators, doubtful of the portrait presented to them, may nevertheless have gone along with the measures against the Bacchanals simply because alien religion was involved, others because firm control had been exercised over a popular cult. So what can we learn here of Roman penal practice or policy? That this was a period too early for there to be criminal law in any meaningful legal sense, although there were constitutional conventions which might or might not be observed. That political aims dominated policy and could create ‘crime’ when it was expedient; in later periods it was really only treason that was so lacking in consistent principle. That the repression of 100 101 102 103

Bauman (1990), 345. North (1979), 87. Gruen (1990), 65ff. This attempt to cut out the ringleaders is also obvious in the persecution of the Christians, see ch. 5. There are other parallels too.

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crime was pursued actively by the encouragement of informers to bring the ‘criminals’ to the attention of the authorities, a tendency that was to endure. That women were seen as weak and prone to corruption, but also to be feared as the source of religious unrest, and this in spite of the ringleaders all being male; this view of women as the weaker, but dangerous, sex is indeed a rhetorical topos. That male rape was an issue – throughout Roman history, there was violent disapproval of citizens taking the passive role in homosexual relations, so to force this on a freeborn boy was a huge outrage. It was, and remained, one of the surest ways of stirring up public indignation.104 That forgeries of wills and other documents also cut at the trusted base of upper-class life, and so reports of such doings whipped up feelings among senators and their kin. That, at least on this occasion, punishment was harsh. We may reckon that the report of 7,000 put to death was an exaggeration, but clearly the death penalty was widely imposed.105 At this period, very differently from Polybius’ account of Roman criminal trials some fifty years later, there was evidently no tacit assumption that citizens, or at least upper-class citizens, were immune from physical penalties.106 But although these elements of the affair represent or foreshadow later developments, the essentials of the ‘conspiracy’, what it was, who instigated it and why, who were involved in the rites and what they did, and why the authorities, at a time when the state was not greatly in danger from external forces, should have chosen to indulge in large-scale repression, all remain obscure.107

104

105

106 107

Cf. CTh 9.7.3 (AD 342) and 6 (AD 390). MacCary (1975) thinks this issue, the belief that male initiates must be subjected to homosexual intercourse, was the main reason for the suppression, and indeed Walsh (1996), 200, accepts the idea that there was ‘systematic sexual abuse’. The witchcraft trials of the early modern world make a natural comparison, and perhaps they were even influenced by Livy’s account; see Pailler (1988), 797–816, discussing the influence of the Bacchanalian affair on ‘Europe’s inner demons’. Polybius 6.14.7; and see Robinson (2004b). So also do the practical questions of how, by what method, were those convicted executed? And who carried out the executions of so many?

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Chapter 2 CICERO, MURDER AND THE COURTS

In this chapter I want to consider one of Cicero’s murder cases, pro Roscio Amerino, making some comparisons, where relevant, with pro Cluentio of some fourteen years later, which is also concerned with death in the upper ranks of municipal life. (In each there is an all-purpose off-stage villain, Chrysogonus in pro Roscio, Oppianicus senior in pro Cluentio. In each Cicero starts by saying that he will prove positively his client’s innocence, but later, quite properly, reverts to throwing the burden of proof on the accuser.) The speech on behalf of Sextus Roscius from Ameria is one of Cicero’s earliest, and his first criminal trial; he was probably twenty-seven years old when he made it in 80 BC.1 (We have one earlier speech surviving, pro Publio Quinctio, delivered the previous year, which dealt with a fairly complicated matter of partnership, inheritance and debt; we do not know the result.2). The charge was not simply murder, but more specifically parricide, the murder by the defendant of his father. Sextus Roscius’ acquittal seems to have made Cicero’s name as a forensic orator.3 All we know about the case comes from this speech of Cicero’s, so there is no external account of it from which we can estimate his truthfulness. Naturally his picture is slanted; he was an advocate appearing for the defence, and it was his duty to make the best possible argument for his client. He argues that the balance of probabilities, which was what a Roman jury had to decide – videtur fecisse/videtur non fecisse – was that Magnus and 1 2

3

Gellius 15.28. I have not included the name of Cicero in my citations of pro Roscio Amerino. Technically it was a causa praeiudicalis, a pre-judicial case to settle the matters really in dispute, concerning possession. Since Cicero does not boast that he won, he presumably lost; Kinsey (1971), 5, as editor of pro Quinctio, describes his success as ‘unlikely’, but Platschek (2005) just leaves it as unknown. Cicero mentions it twice, and acquittal must be inferred. ‘Thus my first criminal case, for Roscius of Ameria, won such favourable comment that I was esteemed as competent to handle any kind of litigation’ (Brut. 90.312). ‘There is particular glory and favour to be won in defending, and so much the more when it comes to the aid of someone who is oppressed by the rich and powerful, like the defence I made when a young man on behalf of Sextus Roscius of Ameria against great influence during the domination of Sulla’ (off. 2.14.51). Plut. Cic. 3.2–4, states explicitly that Sextus Roscius was acquitted.

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C I C E R O , M U R D E R A N D T H E C O U RT S

Capito, two of the Roscii, one of the leading families, or indeed clans, in Ameria, had brought about Sextus Roscius senior’s death, and certainly the loss of his estate. The first charge does not appear, even on the facts as Cicero gives them, to be at all likely; the second is much more convincing. Cicero’s defence is based, as was common with the Romans, more on character, which was held to be consistent, than on objective evidence. Cicero’s character evidence for Sextus is mostly in the form of a rhetorical topos, a disquisition on the superiority of rural life; his client is represented as a countryman, and so ex hypothesi respectable, but he does at least provide such a laudation.4 Cicero’s reliability in setting out exactly what had happened may be doubted, but he would have been limited by the need for plausibility, particularly as to the kind of facts with which the members of the jury would be well acquainted. To have been caught out in a direct untruth (as opposed to a misdirection) would have damaged his credibility; oratory might be used to make the worse appear the better part, but there were rules to the game. Sextus Roscius junior’s trial, like that of Cluentius, took place before the quaestio perpetua de sicariis et veneficiis;5 both trials reflect a society where the ravages of civil war had undermined social stability and trust, in the Italian municipalities perhaps even more than in Rome. Before looking at the actual trial, I shall give an outline of the court system, and then a rapid survey of the political background.

The system of the standing jury-courts The quaestiones perpetuae were the standing jury-courts, of which the first had been established in 149 BC by the lex Calpurnia de repetundis to deal with extortion in the provinces by Roman magistrates. These courts were in permanent session in the sense that, whenever a relevant accusation was made, the praetor in charge of a particular court for the year in question could proceed at once to the enrolment of a jury, chosen from an album (list), also valid for the year. The list of potential jurors or iudices6 was drawn up annually by the Urban Praetor; the jurors were taken from the upper orders of society, sometimes senators, sometimes equestrians,7 sometimes – and always after 70 BC – from both orders.8 This question of 4 5 6

7 8

In pro Cluentio by contrast, he makes virtually no mention of Cluentius’ personal character, although covering him with the praise of his father. Cicero uses both de veneficis, concerning poisoners, and de veneficiis, concerning poisonings; both forms seem appropriate in the context of the court. The term iudices literally means judges, but in the context of the quaestiones perpetuae is normally translated as jurors; Cicero is usually understood to address the ‘gentlemen of the jury’. The cavalry of early Rome; the class below, and to some extent overlapping, the senators. And sometimes more widely. On post-Sullan juries, see, still, Greenidge (1901), 436–56; Greenidge remains a reliable guide to the procedure of these courts in Cicero’s time, pp. 456–504, ‘The course of the trial’. Augustus relieved senators of the duty.

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the composition of the juries was, for some fifty years after C. Gracchus’ changes in 122 BC an extremely sensitive political question.9 In the 80s Sulla had reversed the Gracchan use of equestrian jurors and in his time the juries were composed exclusively of senators.10 There is a noticeable difference in Cicero’s attitudes to the jurors in pro Roscio and pro Cluentio. In the trial of Sextus Roscius there was a Sullan jury, all senators, comprising perhaps 32 iudices. Cicero speaks respectfully to them as representatives of all that is best in the res publica. In the later trial there was a mixed jury, with probably some 75 iudices, and Cicero could refer to a senatorial jury of 74 BC as having been heavily bribed; this indeed was an important part of his defence of Cluentius. The senatorial members would have had to accept this, because it was a notorious scandal, and the equestrian jurors might have been secretly somewhat amused. During his dictatorship in 82–81 BC only a year or so before the trial of Sextus Roscius, Sulla revised the statutes governing the standing jurycourts, creating for the first time a systematic criminal legal system.11 Each statute defined its crime, and laid down the procedure and the penalty.12 This was the ordo iudiciorum publicorum, or simply the ordo, further and finally regulated by the Emperor Augustus.13 There is no reason to doubt that Sulla did intend the courts to take over the care of public order; otherwise he would hardly have established or re-established them. There were courts, each set up by its own statute, dealing with treason (maiestas), with extortion by governors in the provinces (de repetundis), with the embezzlement of public funds (de peculatu), with the forging of documents and coining (de falsis), with murder (de sicariis et veneficiis), and probably with assault (iniuria) and with electoral corruption (ambitus). The quaestio perpetua de vi (violence, sedition) was post-Sullan; it is unclear whether it was established by the lex Lutatia or the lex Plautia.14 Each court dealt with one crime or group of crimes: for example, the misappropriation of public monies properly received – de residuis – fell 9 10 11 12

13

14

See Brunt (1988), 194–239. For the details of assigning a Sullan jury, see Greenidge (1901), 437–42. Cloud (1994), 530; Robinson (1995b), 2–3. We have nearly the whole of one such statute, the lex on the tabula Bembina, commonly known as the lex Acilia (FIRA i no.7, p. 84; RS I 39–112). It is pre-Sullan, so there may well have been subsequent changes of detail, but it is clear from Cicero’s speeches that it illustrates the normal outline of a trial. The lex Iulia iudiciorum publicorum of 17 BC, a judicature act, as one might say. This is why the establishing statutes are nearly all either a lex Cornelia (from Sulla) or a lex Iulia (from Caesar or Augustus). All other courts deviated from the ordo, and so were described as extra ordinem – extraordinary in a very narrow sense. On the establishment of these courts generally, see Cloud (1994), 512–26; on the statutes on vis, see Vitzthum (1966). Cicero was able to remark that all crimes were covered by these courts (‘cum omnium peccatorum quaestiones sint’, Balb. 28.65), but this was because of the great scope of the delictual actions.

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under the court for the embezzlement of public funds, and the acceptance of bribes by those involved officially in the judicial process was classed as extortion. Each court had a magistrate, normally a praetor but sometimes an ex-aedile – in either case he could be called quaesitor (but the term iudex quaestionis seems restricted to the ex-aediles) – who was appointed, or rather allotted, by the Senate to preside over it for the year of his term of office. It was to him that accusations were made, and it was his duty to decide whether the accusation was competent and should be accepted. There might need to be a preliminary hearing, with a jury, if there were several persons seeking to bring an accusation;15 this was because only one man could speak as the formal accuser, but he was allowed supporters, who were called subscriptores. If there were multiple charges, it was for the praetor, presumably the Urban Praetor, to allot the case as seemed most suitable according to set rules.16 A majority verdict was required for a condemnation.17 The quaestio perpetua de sicariis et veneficis The quaestio perpetua based on the lex Cornelia de sicariis et veneficis had become by Sulla’s time, with the bringing together of two older courts, the single murder court.18 It also had jurisdiction over parricide,19 urban arson,20 and in some cases the corrupt procuring of the condemnation of an innocent person on a capital charge.21 C. Sempronius Gracchus, in whose tribunate all-equestrian juries had been introduced, had had a law – apparently the first on the topic since the Twelve Tables22 – passed against any form of judicial corruption, ne quis in iudicio circumveniatur, which had been 15

16 17

18

19 20 21

22

This was called a divinatio; Cicero won the case against Caecilius to be allowed to prosecute Verres (divinatio in Caecilium); see also Tac. Ann. 3.10.1, considered in chapter 3, where there was competition to prosecute Piso. Quint. inst. or. 3.10.1. Three verdicts were possible in a criminal trial at this period, rather as in Scots law: guilty, not guilty, and non liquet, or no vote; the third Scots verdict is ‘not proven’. For a condemnation, there must be a majority, non liquet counted as an acquittal; the verdict on Oppianicus (treated in pro Cluentio) was clear if close, 17 votes to 15 (Cicero, Caecina 10.29). The rule that an equality of votes for condemnation and acquittal meant acquittal is a limited argument for the acceptance of a presumption of innocence. For an analysis of the statute, see Ferrary (1991). On the content in practice see generally Robinson (1995b), 41–47. I think, contra Cloud (1968) and (1994), that this creation of one murder court, even if it sat in several divisions, was Sulla’s purpose. Further, I agree with Alexander (2002), 187, that the divisions were pragmatic, and that from this time on the same president and the same jurors could hear any form of murder. Since at least 86 BC (Cicero, inv. 2.19.58). Based on XII T 8.10; D 48.8.1pr, Marcian. See also MacCormack (1972). D 48.8.1pr-1, Marcian; PS 5.23.1. Cicero argued in Cluentius’ trial that this section could not at that time apply to a member of the equestrian order since the equestrians had not been eligible to serve (Cic. Clu. 52.144–57.157). XII T 9.3 = Gellius 20.1.7.

33


aimed at abuse of official power rather than bribery. This law may originally have had a quaestio of its own,23 but it seems to have been subsumed into Sulla’s murder statute in altered form to fit the new circumstances. Earlier, the quaestio de sicariis had dealt with gangsters (the urban equivalent of rural bandits), professional thugs and killers, which explains why the language used in the statute is apparently more concerned with going about armed in preparation for committing murder or theft than with actual killing; attempts very definitely fell within its scope.24 This kind of behaviour came to be dealt with primarily by the legislation on vis in the 70s and later. The quaestio de veneficiis was at least as old as the century and probably dated back to the 120s BC; there had been several notorious quaestiones extraordinariae earlier in the second century to investigate particularly shocking cases of poisoning.25 The fifth chapter of the lex Cornelia covered making, selling and buying poison, as well as using it or arranging for it to be used.26 The penalty of the law was technically capital, death, but it had become customary, by the middle of the second century BC according to Polybius,27 to allow those condemned in the assembly trials to go into exile, as long as even one century had not voted; this custom seems continued in the quaestiones perpetuae. Julius Caesar was to formalize interdiction from fire and water – outlawry – as the penalty, along with confiscation of half or all the convict’s property. It remains obscure whether this applied to those convicted of crimes not covered by the quaestiones perpetuae. The lack of a state prosecution service and the moral ambivalence of prosecution One of the main features of Roman criminal procedure is that the Romans never had a state prosecution service, although prosecution ex officio by a magistrate or provincial governor was known. For 500 years or more they relied primarily upon crimes being brought before the criminal courts by individuals, normally the victim or his kin, or else (probably) upon private criminal prosecution before the civil courts;28 this was presumably effective while Rome was a small Italian city-state. In matters where the safety of the state was involved, a magistrate would bring a charge before an assembly of the people – such trials were called iudicia populi. But as Rome grew, and urban life became more impersonal, it became normal, particularly after the establishment of the quaestiones perpetuae, to allow any adult (male) citizen in 23 24 25 26 27 28

Strachan-Davidson (1912), II 83. Cloud (1969). 184 BC (Livy 39.38.3); 180 BC (Livy 40.37 and 43); 152 Max. 6.3.8). D 48.8.3pr, Marcian. Polybius 6.14.7; Robinson (2004b). Kunkel (1967), ‘Ein direktes Zeugnis’.

34

BC

(Livy 40.44.6; per. 48; cf. Val.


good standing to bring an accusation if he became aware of a crime; indeed, it became something to be encouraged, even rewarded, and it was with the rewards that moral doubts developed. Plautus in one of his plays has a professional parasite (a low character) unwilling to be an informer (neque quadruplari me volo); it was unbecoming to snap up the property of others without personal risk, and the character would like a law making the successful accuser give half his proceeds to the public purse.29 Accusers were technically delators, delatores nominis, since they laid before the president of the relevant court the name of the accused; the term is often translated by ‘informers’. Index, indices in the plural, is another term sometimes used for these men, because they pointed out, indicated, the allegedly guilty, but generally indices were closer to informers in the modern usage of the term; they were likely to be persons on the fringes of the crime under investigation.30 As Cicero said in pro Roscio: It is a useful thing that there should be a number of accusers in the state, so that audacity may be held in check by fear, . . . This is the reason why we are all ready to allow that there should be as many accusers as possible, because an innocent man, if he is accused, can be acquitted, but one who is guilty, unless he is accused, cannot be condemned. For it is more expedient that an innocent man should be acquitted than that a guilty man should not be brought to trial.31 Personal enmity or desire for revenge were considered good moral grounds for prosecuting, whether the prosecutor was the victim of a crime, or connected with him (or her). This was because the Romans held that a degree of self-help was normal and proper in a citizen’s life, although the interests of society might demand the involvement of the authorities. ‘The ordinary Roman had to be his own policeman, but he must have needed a reasonably accessible procedure to deal with capital crimes.’32 To initiate violent action was wrong, and became more so as the Empire developed, but there ought to be a balance in society between the interests of state and individual. (It was perhaps not so very different from the culture of the American West.) The institution of clientage meant that the poor would be under the protection of the powerful, thus making the playing-field more even. There was no police force, as there was not in modern Europe until the eighteenth century at the earliest. (And, as I said in my Introduction, there was not 29 30 31 32

Plautus, Persa, 62–74; this was clearly before the introduction of calumny. On quadruplatores, see Wesener (1963); Caminãs (1984b); Cloud (1992). See also Robinson (2006). Caminãs (1983); Cerami (1998a). Rosc. Am. 20.55–56. Lintott (1999), 156; an example is the report of a suspected crime by the missing man’s freedmen in Cic. Clu. 13.38.

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really a criminal law in Rome in the modern sense, but then, neither was there in Europe before the twin forces of the Enlightenment and the Industrial Revolution.33) Self-help was nevertheless approved, not because the forces of law and order were inadequate, but because it was morally good,34 and this particularly applied to domestic offences such as rape and adultery.35 Prosecution was, however, because of its rewards, held to be a morally ambivalent act, which is why Cicero normally appeared for the defence. Sometimes loyalty, whether personal or to a province or city, could justify prosecution, as with his prosecution of Verres.36 And it was not too deplorable for a young advocate at the start of his career, before anyone would ask him to act for the defence, to bring his name into prominence in this way. Yet Cicero viewed with contempt those who made a profession of accusing. This was an attitude widely held. Quintilian, for example, a century later, said that while accusations might be made from either public or private duty, and although the laws would be powerless if nobody prosecuted, yet to live for prosecution and its rewards was brigandage – latrocinium.37 To prosecute for pay was shameful, or even criminal. Because of this system of private prosecution, and in particular because successful prosecution could be lucrative, there developed the offence of calumny under the lex Remnia, perhaps of 91 BC, extended in the Edict of the Urban Praetor.38 This was the bringing of a false charge, from malice, or frivolity, or at least with reckless disregard for the truth. Failing to make good one’s accusation did not of itself infer calumny, but after an acquittal it was the duty of the court to consider the issue.

The Social War and Sulla’s dictatorship To move now to the political and social background to pro Roscio Amerino (and also pro Cluentio).39 Partly as a result of the military burdens laid upon them by Rome’s various wars, the Italian allies of Rome had been desirous of the Roman citizenship – and its freedom from taxation – since at least around the beginning of the first century BC. In 91 BC a revolt broke out 33 34 35 36

37 38 39

Contrast Mackenzie and Hume; see Intro. Lintott (1968), 25; cf. Wesener (1958). Seneca, ira 1.21.3; Quint. inst.or. 7.4.6; Gellius 10.23; Val. Max. 6.1.13. Cf. Manfredini (2001). Pliny, at the end of the first century AD, felt uncomfortable with prosecuting, even where he saw it as his duty. Like Cicero he was much happier acting for the defence (Pliny, Ep. 3.4.8). Quint. inst.or.12.7.1–3. Caminãs (1984a), summarised (1990), in French; Caminãs (1994). For a fuller treatment of procedural offences, see ch. 4. For a history of these events, see, for example, Scullard (1982); Gabba (1994); Seager (1994).

36


which rapidly escalated into the Social War, the war of the socii or allies, which lasted some three years. It did win the Roman citizenship for all Italians south of the River Po, ‘but at a terrible cost in human lives and suffering; its economic repercussions were serious’.40 Sulla became consul in 88 BC, after the end of the war, and received Asia, and dealing with Mithridates, the ambitious king of Pontus, as his province. The tribune Sulpicius, however, contrary to the conventions of the constitution, carried a law to transfer this command to Marius. Sulla and his army marched on Rome, seized the City and annulled Sulpicius’ laws. Sulpicius, despite his tribunician sacrosanctity, was killed; Marius was declared a public enemy and fled to Africa. Octavius and Cinna, who appeared friendly to Sulla, were elected consuls. Sulla then went off to the East, where he defeated Mithridates and restored Roman power. Cinna’s behaviour was such that Octavius declared him a public enemy, but in vain; Cinna joined Marius, back from Africa, raised armies and took Rome, looting and murdering for five days. Cinna and Marius were elected consuls for 86 BC, but Marius died, and for the next three years there followed what is known as the domination of Cinna in the popularist interest. Cinna, however, was killed in 84 BC, and in 83 BC Sulla returned from the East; open war then broke out again between himself, supported by the party of the optimates, and the younger Marius, leading the populares. A number of senators were slaughtered in Rome on the orders of Marius junior shortly before Sulla reached the City. Sulla was victorious in 82 BC; he showed clemency to those who were swift to submit, but a terrible massacre of those taken prisoner at the battle of the Colline Gate of Rome was the fate of those who resisted.41 The proscriptions Under the lex Valeria of 82 BC Sulla became dictator legibus scribundis et rei publicae constituendae. He then issued an edict, proscribing his enemies.42 ‘Proscription’43 meant in practice publishing a list of those who were held to be enemies of the state; they were deprived of all rights, so that it was no crime to kill them. Indeed, rewards were paid to those who did kill them – 12,000 denarii a head, a literal head, which was to be publicly exposed in Rome; the 12,000 denarii were paid from public funds under proper 40 41

42 43

Scullard (1963), 70. Plut. Sulla 30.2–3; Seneca, clem. 1.12.2. The story goes that Sulla, speaking to the Senate as it met at the Temple of Bellona, where the shrieks of some 6,000 men dying were clearly audible, told the senators not to bother about the criminals being admonished; it was being done at his orders. For the details, see Hinard (1985), particularly pp. 35–51. The literal legal meaning of the term applied only to the confiscations, for it meant the notice of sale of such property. As in cases of bankruptcy, the estate was sold as a whole. However, the term came to be used more loosely for the outlawing of those listed.

37


accounting procedures. The reward for slaves was their freedom. Anyone who in any way assisted or helped one of the proscribed was to be capitally punished, as was anyone who failed to betray any of them. Once beheaded, the proscribed were not to be allowed funeral rites, but their bodies were to be dragged by iron hooks and tumbled into the Tiber, in some cases after deliberate mutilation.44 Mourning them was forbidden.45 Their estates were confiscated and auctioned off; we are told that this was for the benefit of the buyers, rather than to raise any serious sums,46 since the rewards were not paid from this source. Their children and grandchildren were deprived of their civic rights; they could not stand for a magistracy, or hold any other honour, and may have been barred from living in Rome or Italy.47 This may have been introduced by the lex Cornelia on the proscribed, a law perhaps entitled lex de proscriptione, perhaps lex de hostibus rei publicae,48 which was subsequent to the edict, and may have been intended to give Sulla’s own supporters knowledge of the extent of the vengeance. A story is told which reveals how people remembered the time of fear: Lucius Catiline had killed his brother before the civil struggle was decided, but he now asked Sulla to proscribe that brother posthumously; Sulla agreed, and in thanks Catiline brought the head of Marcus Marius Gratidianus,49 another of the proscribed, and his own brother-in-law, to Sulla where he sat in the Forum, and then washed his bloody hands there in the lustral water of Apollo.50 Such a background makes more credible Cicero’s list of charges in pro Cluentio against Oppianicus: Oppianicus was the man who was convicted of falsifying with his own hand the public records of his town, who forged a will, who by fraudulent personation secured the seals and signatures of witnesses to a sham will, who murdered the man in whose name it had been signed and sealed, who put to death his own son’s uncle when a slave and a captive, who secured the proscription and death of his own fellow-townsmen, who killed his brother and then married the 44

45 46 47

48 49

50

Cicero himself was to lose his hands, for penning the Philippics against Mark Antony, when he was beheaded in the triumviral proscription of 44 BC (Appian BC 4.4.20; Plut. Cic. 48.4). This was not unusual for those defined as enemies of the state. Cic. off. 2.8.27; 1.14.43. The buyers at auction, the sectores, could then break up the confiscated estates and sell them off piecemeal. If so, this probably applied only to the descendants of senators; there seems to be no attempt to make his continuing residence in Rome a charge against Sextus Roscius junior. Cf. Vell. Pat. 2.28.4. Hinard (1985), 75. The Gratidii, along with the Marii, were the leading families in Arpinum; they were also, unsurprisingly, connected to the Cicerones (see Rawson 1971), 76–79; Gratidianus was celebrated for his reforms of the coinage. Plut. Sulla 32.2; Seneca, ira 3.18.1–2.

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widow, who gave a bribe to procure abortion, who murdered his mother-in-law, murdered his wives, murdered at one and the same time his brother’s wife with her expected children and his brother himself, and finally murdered his own children, and who, intending to give poison to his stepson, was taken in the act [not Oppianicus himself, but his minion, Scamander], and when haled to judgment after the conviction of his tools and accomplices bribed a juror to tamper with the other jurors’ votes. 51 One must remember that (as we shall see in the case of Germanicus in chapter 3) it was very easy to allege that someone had been poisoned, since the Romans had no adequate knowledge of internal diseases. On the other hand, while we do not have to believe that Oppianicus did actually poison so many of his kin, it is clear that Cicero could put forward these allegations without arousing ridicule; the cheapening of life and the coarsening of sensibility brought about by the Social Wars and the period of the proscriptions must have helped make them credible. The lex Cornelia de proscriptione included a further list of proscribed persons, and also confiscated the estates of those who had taken up arms against the res publica – that is, against Sulla and his party – including those who had fallen or would fall in the continuing fighting. The confiscation of estates52 seems to have been fixed to come to an end on 1 June 81, but the non-status of the proscribed was to remain in force for ever and everywhere; they could be sought out and killed wherever they were hiding.53 (Not until the lex Antonia of 49 BC were all the legal effects of the lex Cornelia undone.) The first lists included some 40 senators, 1,600 equestrians, and other country gentlemen of comparable status, men such as Sextus Roscius senior.54 ‘Those who fell victims to political resentment and private hatred were as nothing compared with those who were butchered for the sake of their property.’55

51 52 53

54

55

Cicero, Clu. 44.125. Perhaps now to be sold for the benefit of the aerarium, the state treasury. In 64 BC, when Caesar was praetor for the quaestio de sicariis et veneficiis, he allowed some of the sicarii who had slaughtered the proscribed to be prosecuted as killers before the murder court, even though the lex Cornelia had given them immunity as well as rewards (Suet. Julius 11). Appian, BC 1.11.95–96; later lists included more senators, and men of wealth from among the Italians; elsewhere (BC 1.12.103) Appian gives as a total 90 senators (including 15 consulars) and 2,600 equestrians, not mentioning Italians. Plutarch, Sulla 31.3–5; in this account it began with 80 names, then in the next two days another 440, and more later. Orosius (5.21.1) gives the highest total figure, 9,000; Firmicus Maternus (Math. 1.7.27) reports 7,000. Gardner (1932), 277, gives the total as 4,700. Cic. Clu. 8.25 gives a local example at Larinum.

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The civil strife had ripped apart the social stability of the Italian upper classes. The effects of constant wars ruined much of the Italian peasantry; conscription of adult males led to impoverished or indebted farms, with nobody there to protect them against forcible expropriation. Shortage of labour on the land led to shortages of food, and to the growth of kidnapping; an insufficiently armed traveller might well disappear for ever into the ergastulum of some successful Sullan, as did Marcus Aurius, taken prisoner during the Social War; his whereabouts were eventually discovered, but only in time for him to be put out of the way.56 Unrest among slaves culminated in the rising of Spartacus, which lasted two years (73–71 BC) and harmed much of Italy as his armies ranged over the peninsula. When the rebellion was at last put down by Crassus, 6,000 rebellious slaves were crucified along the length of the via Appia;57 these men too, as has been wryly said, ‘were permanently removed from the labour force’.58 Violence and bloodshed were taken for granted, as was the seizure of one’s enemy’s property, usually but by no means always under the pretext of his being an enemy of the res publica. The trial of Cluentius, some fourteen years after the restoration of legal normality, reveals the continuing harm done to municipal life, for the accusations made by Cicero, while obviously suited to his case, cannot have been totally implausible. But in 80 BC, when the charge of killing his father, parricide in the strict sense, was brought against the younger Sextus Roscius,59 the wars were not quite over – Sulla was still besieging Volaterrae under arms. Parricide might be viewed as a separate crime from murder, with a separate penalty, but it was hardly a common enough crime to justify a court specially assigned to it, so the case was heard before the ordinary murder court, recently re-established by Sulla.

pro Roscio Amerino: the case Cicero opens his case with an explanation of his own appearance as advocate before the court. His very youth and lack of status – he was at this time an equestrian from one of the Italian municipia, in his case Arpinum, someone not so very different from his client – gave him more freedom to appear at a time when men of greater standing might with reason fear the dangers inherent in defending a case which would inevitably raise issues concerning 56

57 58 59

Cicero, Clu. 7.21; he is the ‘slave and captive’ mentioned in Oppianicus’ list of crimes, cited above. It is possible that the Martiales, the public slaves of Mars consecrated to the god by the ancient religious customs of the citizens of Larinum, or some of them, may have been victims of the times (Cicero, Clu. 15.43). It was still a problem under Augustus (Suet. Aug. 32.1). Appian, BC 1.14.120. Brunt (1971), 288. To minimize confusion, I shall usually refer to the elder Sextus Roscius as Roscius, and the younger as Sextus.

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public affairs. Kinsey’s suggestion that a landless refugee client was not worth much effort to the Metelli and Publius Scipio seems credible.60 Nevertheless, Cicero was presumably able to win some sympathy from the iudices by claiming that he was undertaking the defence of Sextus Roscius, not that he might be adequately defended, but to prevent his not being defended at all.61 Cicero then explained to the jurors what he was talking about. The property of Sextus Roscius senior had been valued at 6 million sesterces, and yet Lucius Cornelius Chrysogonus, the freedman and favourite of Sulla, claimed to have bought it, from Sulla, for 2,000 sesterces. Chrysogonus therefore was looking for some way to secure his illegal seizure, and to remove Sextus Roscius junior, the heir, from the scene.62 It was a gross indignity to their senatorial rank that the jurors should be thought capable of aiding such a plot by supporting Chrysogonus with the law when he had so far relied on crime and the sword.63 It was this attack on Chrysogonus that involved some risk to Cicero. An attack on somebody’s freedman was normally construed as an attack on the patron; Sulla had only just stepped down from a bloody dictatorship, able to do so because he had killed or impoverished all his opponents, but still holding the consulship and in control of an army. Moreover, it was almost certain that nearly all the men of continuing influence in Rome, including the jurors, would have benefited from sales of estates under the proscriptions; these were not to be undone. Cicero’s remarks about Sulla’s innocence, while tactful, need not be ironic;64 he was inclined to the party of the optimates in spite of being a fellow-townsman of Marius. There has been some attempt to diminish Cicero’s claim to courage in undertaking this defence, and it seems true that he probably inflated the importance of Chrysogonus and of his influence on Sulla; Chrysogonus is not mentioned in any ancient source independent of Cicero, which surely would have been the case if he had really been ‘at the time perhaps the most powerful young man in the state’.65 However, Cicero’s speech would have been far less effective if Chrysogonus had not been generally seen as a person of considerable influence. The apparent weakness (for we have only Cicero’s word) of the prosecution case could indeed have been due to the accusers not expecting to meet any resolute defence.

60

61 62 63 64 65

Kinsey, (1985a). See Rosc. Am. 28.77, also 10.27; Sulla’s beloved wife was a Metella. Cicero owed a debt to Lucius Crassus (Rawson, (1971), 82f), but may have been encouraged by the Metelli to attack, indirectly, Marcus Crassus, as suggested by Dorey (1960). Rosc. Am. 1.1–2.5. Rosc. Am. 2.6. Rosc. Am. 3.7–8. So Kinsey (1980), despite Buchheit (1975b). Rosc. Am. 2.6: ‘adulescens vel potentissimus hoc tempore nostrae civitatis’.

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The narrative Cicero remarks that this was the first murder trial that had taken place for a long time, although there had been slaughter in plenty, in other words, the proscriptions. This was, of course, because the civil wars had not permitted the ordinary functioning of the courts, which had now been revived by Sulla, and were intended to help restore normality. Cicero then turns to the facts of the case – naturally, as he chooses to give them. Roscius senior had been the leading citizen of the municipium of Ameria, an Umbrian hill town rather more than 50 miles north of Rome. He had also enjoyed formal relations of mutual hospitality (hospitium) with some of the most notable senatorial families in Rome, the Metelli, the Servilii and the Scipiones, and had in addition been personally on excellent terms with these families. They, and Roscius, had largely sided with the optimates, Sulla’s side in the civil wars, and Roscius had defended these families’ interests and those of other optimates in and around Ameria. After the end of the civil wars, he was regularly to be found in Rome, seen in public as one comfortably on the victorious side.66 However, there was a long-standing feud between Sextus Roscius senior and two other Roscii of Ameria, Titus Roscius Capito and Titus Roscius Magnus. Magnus was in court as one of the accusers, while Capito, who was well known, Cicero says, as a cut-throat scoundrel, had recently acquired three of Roscius’ farms. One evening, when Roscius was returning from supper, by implication with one of the senatorial families already mentioned, he was set on and killed close to the Baths of Pallacina, near the Circus Flaminius. At this particular time Magnus was in Rome, whereas Sextus was at home in Ameria, managing his father’s estates.67 The news of Roscius’ death was brought to Ameria by one Mallius Glaucia, described by Cicero as a man of no account, a freedman, and a client and familiar of Magnus, and he brought the news, and also the weapon used, not to the son, but to Capito. Although the murder had been committed at dusk, the messenger reached Ameria at daybreak, covering 56 miles in some ten hours with relays of light vehicles – and that was indeed brisk travelling, particularly in the dark.68 Four days later, the death was reported to Chrysogonus who was in Etruria, in Sulla’s camp at Volaterrae, where the civil war had not yet ended. Roscius’ fortune was known to be large – he owned thirteen good farms in the valley of the Tiber – while his son was isolated from his father’s friends. Magnus and Capito promised Chrysogonus their assistance in putting Sextus out of the way.69 66 67 68

69

Rosc. Am. 6.15–16. Rosc. Am. 6.17–7.18. Kinsey (1980), 176, holds that Cicero’s knowledge of the vehicle and the weapon (telum) must come through Sextus, and that this implies that Capito went, probably at once, to see Sextus. Rosc. Am. 7.19–20.

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Although the proscription was now over, for the lists of the proscribed had been closed on 1 June 81,70 the name of Roscius was retrospectively entered on the lists, despite his having been a supporter of Sulla’s optimates. Chrysogonus now bought Roscius’ estate, an estate worth 6 million, bought for 2,000 sesterces – of course, says Cicero, without Sulla’s knowledge. Sulla was preoccupied with affairs of state; in a large household no man of wealth could be so fortunate as not to have the occasional dishonest slave or freedman. Capito received three of the farms as his reward, and Magnus took possession of the rest, as Chrysogonus’ procurator, ejecting Sextus, who was left penniless, without even a single slave to cook his dinner.71 The inhabitants of Ameria were outraged at what they were seeing, the murder of Roscius and the infamous purchase of his property. The decurions, the town councillors, therefore issued a decree, setting up an embassy of ten leading councillors who were to approach Sulla to tell him of the virtues of Sextus Roscius senior, to complain of the iniquitous conduct of Magnus, and to beg him to see that the reputation of the father and the property of the son were preserved. The decree of the decurions was then read out to the court. This kind of thing was a normal part of municipal life.72 The embassy went to Volaterrae, but Capito apparently was a member of it, which could suggest that he was not generally seen an enemy of Roscius senior.73 Chrysogonus was presumably forewarned, for, in this version of the story, he both came to meet them in person, and also got certain men of rank to beg them not to approach Sulla, for he did not want Sulla to know of his misdeeds. (Sulla might, indeed, have been very angry; he broke with Marcus Crassus, a man of consular family, who joined him with an army in 83 BC, a man far, far above a mere freedman, for having on his own authority proscribed a man at Bruttium, merely to get his property.74) Chrysogonus said he would himself remove Roscius’ name from the lists, and restore his property to the son; Capito guaranteed that this would be done, and the embassy returned to Ameria without ever having seen Sulla. After all, the delegation knew for certain that Roscius had not been killed ‘in the enemy camp’, so they thought they knew that he had been on the lists of the proscribed, and that this listing must have been done in error. Of course, what had been promised did not happen, but since the delegation had heard these promises, the conspirators decided to make sure of their hold on the property by bringing about the death of Sextus.75 When Sextus realized what was going on, on the advice of his friends and relatives he took refuge in Rome at the 70 71 72 73 74 75

There seems to be no other source apart from this speech which gives the date. Rosc. Am. 8.21–3, and 28.77. See Salerno (1990), 175ff. There was similar local support for Cluentius: Cicero, Clu. 69.195–98. Kinsey (1985a). Plut. Crassus 6.6. Rosc. Am. 9.24–26.

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house of Caecilia Metella (sister of the consul of 98 BC and daughter of Q. Caecilius Metellus who had conquered the Balearic Islands during his consulship in 123 BC), one of his father’s grand friends. There he was safe from direct assault. Hence the next stage in the plot as described by Cicero. The other Roscii, Magnus and Capito, whether or not with the connivance of Chrysogonus, decided to have Sextus accused of parricide, saying to themselves that since no trials had been held for so long, the first person charged would be bound to be convicted.76 They thought that nobody would want to talk of such a politically sensitive matter as the selling up of estates, and that the fear of Chrysogonus’ influence and the odiousness of the accusation of parricide would mean that nobody could be found to defend Sextus.77 There were thus three obstacles facing Sextus Roscius junior: the accusation, which was formally brought by one Erucius, the audacity of the other Roscii, and the power of Chrysogonus. Cicero must refute the accusation, but it was for the jurors to resist audacity and malign power.78 Parricide and its penalty It should perhaps be said here that parricide by this period undoubtedly had much the same meaning as in the modern usage, the killing of a father or parent.79 However, the peculiar penalty of the sack (culleus) seems to have been limited to the murder of ascendants.80 Of the cases specifically described as parricide which we hear about, Malleolus was executed in 103 BC for the murder of his mother.81 ‘Not many years ago’, as Cicero tells us in this speech, two sons had been acquitted of murdering their father in Tarracina.82 Sextus was, of course, alleged to have killed his father. Someone who was accused of killing his father appeared before Augustus.83 Other killings within the family may have been viewed as aggravated homicide, but they do not seem to have been punished differently from ordinary murder. Whether parricide in the narrowest sense or something wider, such cases 76 77 78 79

80 81 82 83

Riggsby (1999), 66, thinks this must have been a fiction used by Cicero ‘to introduce the sensitive topic of the proscriptions in a gentler way’. Rosc. Am. 10.27–28. Rosc. Am. 13.35–36. Festus tells us that in regal times there were quaestores parricidii who were established to inquire into killings, for at that time a parricide was one who was said to have killed not his parent but a free man who had not been condemned. Festus, p. 221L; leges regiae, Numa, 12: ‘Si quis hominem liberum dolo sciens morti duit paricidas esto.’ There is a large modern literature on the original nature of parricide. D 48.9.9.1, Modestinus. Rhet. ad Her. 1.13.23; Cicero, inv. 2.50.149; Livy, per. 68. Rosc. Am. 23.64–65; cf. Wiseman (1967). Suet. Aug. 33.1.

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seem to have come before the quaestio de sicariis vel veneficiis, except where extraordinary jurisdiction was the more appropriate, as in the provinces.84 Cicero went on to say that Solon of Athens had not fixed a penalty for parricide because he thought nobody would commit such a crime. The Romans of old were wiser; they had ordained that parricides should be sewn alive into a leather sack, and then thrown into the river.85 The penalty of the sack has been described for us more than once.86 Livy’s epitome says merely: Publicius Malleolus was the first to be sewn up in a sack and thrown into the sea for having killed his mother.87 We are given more details by the anonymous writer ad Herennium.88 The man who is found guilty of killing a parent is veiled, tied up in a sack and thrown into running water. . . . Malleolus was condemned for killing his mother; on his condemnation, his head was immediately wrapped in the skin of a wolf, and wooden soles were bound to his feet, then he was taken to the prison. There those who were defending him brought in tablets and wrote his will for him in his presence, and there were witnesses. Then the penalty was imposed.89 Cicero explains the wooden clogs as preventing the guilty man from running away while the sack is being prepared, but it seems more likely to have been to avoid pollution by preventing contact with the earth.90 In none of these descriptions do we hear of any animals being enclosed with the condemned man in the sack, but they do occur in some later literary 84

85 86

87 88 89 90

When Cicero’s brother Quintus was governor of Asia, he had two Mysians executed by the sack at Smyrna, and Cicero seems to approve his severity, but we are given no details (Cicero, adQ fr. 1.2.5). Rosc. Am. 25.70. Cloud (1971) maintains convincingly that there are jokes in Plautus’ plays which suggest the recent introduction of the penalty of the sack, and offers the case of Lucius Hostius (Plut. Rom. 22) as the occasion, in or shortly after 201 BC. This fits with Lintott (1968), 38–39, who thinks it may have derived, like the human sacrifices of 216, from the Sibylline Books. It is clearly an expiatory ritual, rather than meant as a deterrent; cf. Livy 31.12.8 on the drowning of hermaphrodites in 207 and 200 BC. Val. Max. 1.1.13 claims that the penalty was first imposed by the first Tarquin on M. Atilius, duumvir, for revealing the secrets of the sacred rites, and that it was not until long afterwards used for parricides: ‘culleo insutum in mare abici iussit; idque supplicii genus multo post parricidis lege inrogatum est – iustissime quidem, quia pari vindicta parentum ac deorum violatio expianda est.’ Livy, per. 68. Malleolus must have been the first man to be sacked for killing his mother rather than his father. The context is the dispute over the estate between the testamentary heirs and Malleolus’ brother (also one of his accusers) as nearest agnate, and therefore heir on intestacy. Rhet. ad Her. 1.13.23. It is not specifically said that the sack is of leather. Cic. inv. 2.50.149; otherwise this passage adds nothing new.

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texts; Juvenal, for example, in the later first century AD, mentions an ape and a snake.91 Insofar as the penalty of the sack had its origins in sacral law, there need have been nothing prescriptive about the inclusion of animals;92 they could have a symbolic function which differed from case to case. Some years after the trial of Sextus, probably in 55 BC but possibly 52 BC,93 a lex Pompeia de parricidiis was passed; there is no general agreement on what it laid down. Most likely it defined the relationships that comprised parricide.94 It may also have dealt with the penalty. Ferrini thinks that it abolished the penalty of the culleus, and replaced it by exile, the penalty of the lex Cornelia de sicariis.95 A problem with this theory is the anecdote told of Augustus, when the emperor showed himself anxious to avoid imposing the ancient penalty;96 one possible solution is that the lex Pompeia did not abolish the culleus for a self-confessed parricide, not so much because he had confessed but because the blatant deed clearly required expiation.97 Its wellevidenced use by Claudius was in cognitio proceedings, and justifiable, especially for an antiquarian emperor, as being the ancient penalty.98 So it may have again become the normal penalty, providing titillation for the Roman public, after the desuetude of the quaestio perpetua de sicariis et veneficiis. By Hadrian’s time, even for decurions and others of the upper ranks for whom capital punishment meant deportation, death was the penalty for parricide, in the ‘modern’ form of the simple death penalty.99 Modestinus refers to Hadrian’s substitution of condemnation to the beasts for the sack; he views it as limited to places where there was no access to the sea (or a suitable river).100 It is, however, certain that Constantine enforced the ancient penalty for parricide, forbidding the sword, fire or any other penalty than that of the sack, with the inclusion of serpents.101 91 92 93 94

95 96 97 98 99 100

101

Juvenal 8.212ff; in 13.153ff he mentions only an ape; Seneca talks only of serpents (clem. 1.15.7), and likewise the pseudo-Quintilian (decl. mai. 17.9). Nardi (1980), 126. Perhaps, indeed, it was the antiquarian-minded Emperor Claudius who introduced them. Cloud (1971), 60–62. PS 5.24.1. D 48.9.1 and 3–4, Marcian, gives a rather more extended list; Marcian remarks in fr. 1 that parricide can include the killing of a descendant, as well as an ascendant; cf. 48.9.5, Marcian, where he cites a decision of the Emperor Hadrian, punishing a father for misuse of his paternal power. Ferrini (1902), 389, citing D 48.9.1, Marcian. This would naturally be in the context of the quaestio perpetua de sicariis et veneficiis; it would not necessarily have effect extra ordinem. Suet. Aug. 33.1; Augustus may have felt himself bound by the ordo. Crook (1987). Suet. Claud. 34.1; Seneca, clem. 1.23.1. D 48.19.15, Ven. Sat.; and PS 5.23.1. Parricide for Hadrian may have been limited to ascendants (and presumably patrons) as in 48.9.9.1, Modestinus. D 48.9.9pr, Modestinus. There is also mention of flogging with blood-red rods and the inclusion in the sack of a dog, cock, snake and ape, just as in Inst. 4.18.6, which to me suggests the text is interpolated. CJ 9.17.1 = CTh 9.15.1, AD 319.

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In his speech Cicero avoids detail while concentrating on the horror of depriving the guilty man of sky, sun, earth and water; the body must not be found by wild animals, lest they be rendered more savage; the body, if thrown naked into a river, would pollute even the sea. Thus they live, while life lasts, without being able to draw breath from heaven; they die without earth coming into contact with their bones; they are tossed by the waves without ever being cleansed; they are finally cast ashore without being able to rest, even in death, on the rocks.102

Cicero’s speech Cicero then proceeds to have some rhetorical fun at the expense of Erucius, the prosecutor. However, what all this amounted to was that Sextus was a middle-aged man, with no reputation for violence, not in debt, who lived a simple country life. But Erucius said (said Cicero), that his father disliked him, which was ‘proved’ by Sextus’ now deceased younger brother having been the one who accompanied his father on his many visits to Rome, while Sextus stayed behind running the estate.103 Admittedly, it does sound from what Cicero himself says that the father may have found his elder son uncongenial, a rustic clod with no social life, even in Ameria. Then Cicero tells us Erucius’ other point of accusation:104 Roscius senior had intended to disinherit his son. Cicero feigns not to ask the motive, but only how Erucius could know this. Certainly Sextus had not been disinherited. Disinheritance would indeed have been a serious sign that all was not well between father and son.105 The Romans distinguished between legacies and the inheritance. Legatees received money or individual items of property. Heirs succeeded almost to the personality of the testator, to his (or her) rights and duties, except those that were recognized as specifically personal. Further, the heirs were liable for the continued performance of the family sacra, the worship of the family gods, the lares et penates, and so on. There might be many legacies, so that the heirs did not necessarily receive the bulk of the estate, but it was in the heirs that the family persisted. Disinheritance without explanation raised a prima facie case that the testator had not been in his right mind, and there was a remedy in the querela inofficiosi testamenti.106 102 103 104 105 106

Rosc. Am. 26.72. Cicero later mocked his own flourishes of language (Brut. 30.107). Rosc. Am. 13.38–18.52. Rosc. Am. 18.52–19.54. See Cicero, Clu. 48.135, where a father disinherits his son for taking a bribe to secure Oppianicus’ conviction. Cf. Strachan Davidson (1912), I 85–95. See any textbook on Roman law, such as Buckland (1963) or Nicholas (1962).

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Such feeble accusations, not even attempted to be proven, said Cicero, were an insult to the court. This seems a little rash of him, because at this stage of the trial all that had been heard was the opening speech for the prosecution, giving the general tenor of the charge.107 Witnesses were heard and other evidence led after the defence had replied to the prosecution, and Cicero could not be sure how convincing any testimony would be, regardless of whether it was true or false, particularly as Capito was due to appear as a witness.108 He went on to blacken the prosecution by pointing out that nobody thought there was any personal enmity between Erucius and Roscius, but that Erucius had simply been bought, paid to bring the accusation, and therefore might even be at risk of a conviction for calumny.109 Cicero remarks upon Erucius’ casualness of manner in his prosecution speech, and suggests that he did not think anybody, literally, would reply for the defence.110 He never even thought of me, because I had never pleaded in a criminal case before. . . . At last he concluded and sat down; I got up. He seemed to breathe again . . . he was joking and paid no attention until I mentioned the name of Chrysogonus; as soon as I referred to him my man immediately jumped up; he seemed to be astonished. I understood what had stung him. I mentioned Chrysogonus a second and a third time. After that men continued running hastily hither and thither, I suppose to inform Chrysogonus . . . 111 Some modern scholars agree with Cicero’s estimate that ‘the prosecution miscalculated’.112 Others, rather too elaborately in my view, have held that 107 108 109

110

111 112

Greenidge (1901), 477–78; cf. Strachan Davidson (1912), II 115–24. Rosc. Am. 30.84. Rosc. Am. 19.55. Erucius’ position is in marked contrast to that of Titus Attius, the prosecutor of Cluentius. Attius was an eques from Pisaurum, a town relatively easy of access from Larinum, on the via Flaminia, the easiest if not the shortest route to Rome; his status and this proximity suggests that there were ties of friendship between him and young Oppianicus, the real instigator of the accusation, which would justify his role. See Alexander (2002), 176. Rosc. Am. 21.59. A few modern scholars, such as Humbert (1925), seduced presumably by the speech pro Milone, hold that Cicero’s speeches as given were quite different from what was subsequently published, but most, such as Stroh (1975), Kinsey (1975), Hinard (1985) disagree; see Pliny, ep. 1.20.6–10. Nobody doubts that there will have been a little grammatical polishing, especially as Cicero may well not normally have written his speeches out in full, but in pro Roscio Amerino the very nature of the discrepancies argues for authenticity. Cicero, even as a young man, was surely capable of extemporizing. And a final point, if Pliny is a guide to the practice of Cicero’s day in this, speeches, real speeches, might be read aloud to an invited audience (Pliny, ep. 2.19.1 and 8). Rosc. Am. 21.59–22.60. E.g. Craig (1993), 44.

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the accusers hoped that Sextus, to gain acquittal, would take the desperate argument that killing someone proscribed was not by definition murder; thus he would have been forced into accepting the confiscation of his father’s estate, while ruining his own character and reputation.113 It is to be remarked that in his defence of Cluentius, Cicero never suggests that Oppianicus could have been lawfully killed because of being an outlaw, under interdictio aquae et ignis; this was not a ‘good’ defence. Motive, Cicero went on to argue, was always desirable to prove, but so were other circumstances; with such a serious crime as parricide ‘unmistakable traces of the crime must be forthcoming: Where? How? By whose means? The time at which it was committed? Unless these proofs are many and evident, surely an act so criminal, so atrocious and so wicked cannot be believed.’114 Cicero then recounts what must be, in the context, a true story. Not many years ago, it is said, a certain Titus Caelius, a wellknown citizen of Tarracina, went to bed, after supper, in the same room as his two grown-up sons, and was found dead in the morning with his throat cut. As no slave – or free man – could be found on whom suspicion might have fallen, while the two grown-up sons who slept near their father declared that they had noticed nothing, they were indicted for parricide. What could be so suspicious? That neither of them had noticed anything? That someone had dared to venture into that room, at the very time when the two sons were there, who might so easily have seen the crime and offered resistance? Moreover, there was nobody who might reasonably be suspected. However, when it had been proved to the jurors that the young men had been found asleep when the door was opened – or sleeping with the door open115 – they were acquitted and cleared of all suspicion. There was nobody who thought a man could exist who would be capable of going to sleep immediately after he had violated laws both human and divine by such an impious crime; those who have committed such a deed are not only unable to rest peacefully, but cannot even breathe without fear.116 The Romans do not seem to have recognized the coldness so typical of psychopaths, but certainly nothing seems to have been alleged about Sextus that would put him in this category. 113 114 115

116

Stroh (1975), 61–63; Catherine Steel in a private communication. But Alexander (2002) also finds it over-elaborate. Rosc. Am. 22.62. The Latin, ‘aperto ostio dormientes eos repertos esse’, could equally bear either interpretation; Piso ordered the doors of his bedroom to be shut (Tac. Ann. 3.15.3), which suggests that bedroom doors would not necessarily be closed. Rosc. Am. 23.64–5; Val. Max. 8.1.13. See Wiseman (1967).

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After this, Cicero takes up the issue of how Sextus murdered his father. He cannot have done it in person, for he was 50 miles away. With another series of (potentially risky) rhetorical questions Cicero asks what agents Sextus used, slaves or free men; if free men from Ameria, why have they too not been charged?117 If from Rome, how on earth did Sextus, who for several years never went to Rome, and anyway never stayed there more than three days, make contact? How did he persuade them? If he gave them a bribe, where did the money come from, and how much was it? This is something that one would indeed expect to find in a citizen’s financial accounts; the Romans do seem extraordinarily conscientious on this point.118 And Erucius himself had described Sextus as a country lout, who did not spend a night away, even in Ameria, if he could help it. Cicero prefers the topos of the virtuous country life to that of rustic boorishness, but in either view Sextus was not well placed to hire killers. Alternatively, Sextus committed the crime through the agency of his father’s slaves.119 But Sextus was not in a position to offer these slaves to be examined under torture, since his accusers had possession of them all. Sextus had demanded the return of two of the slaves, the two who had been with his father in Rome, in order that he could have them put to the question, and two senators, presumably both his advocati (influential men giving weight to the defender’s case), Publius Scipio and Marcus Metellus, could testify to this; it would have been their duty to assist at the interrogation.120 But Magnus had refused to hand them over, and they were now in Chrysogonus’ familia. This was presumably a reward to them for not giving evidence that would have exculpated Sextus, and possibly implicated the real killers. ‘Everything in this case, gentlemen, is pitiable and scandalous, but nothing harsher or more unfair than this can be brought forward, that a son should not be allowed to put his father’s slaves to the question in regard to his death.’121 To us it may hardly seem pitiable that slaves could not be tortured, but the Romans did not accept the evidence of slaves except under torture;122 there were attempts to regulate the conduct of such interrogations.123 Slaves were not permitted to incriminate their owners or those in a 117 118 119 120 121 122

123

pro Cluentio shows that accusing accomplices before the principal was not out of order; an accomplice was normally equally liable with the principal. Cf. Pliny, Ep. 2.11.23; 3.9.13. Rosc. Am. 28.77. As we see in Cicero, Clu. 63.176–77; 65.182–84, they might formally witness a statement so gathered. Rosc. Am. 28.78. D 48.18.1.1, Ulpian; cf. 48.18.13, Mod; see generally Robinson (1981), also Strachan Davidson (1912), II 126–28; this was based only on custom, although there was both statutory and juristic development. D 48.18.1pr, Ulpian citing Augustus, an interrogation should not begin with torture; nor, as Hadrian wrote, was evidence given thus always to be believed; 48.18.1.21, Ulpian citing Trajan, condemning the use of leading questions; also 48.18.7, Ulpian; 48.18.20, Paul.

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relation akin to ownership.124 However, it was long accepted that someone could offer his own slaves to prove his innocence;125 it was their torture at the instance of an accuser that was forbidden. An owner could torture his or her own slaves, as Sassia did after Oppianicus’ death, and have witnesses testify to their evidence.126 Also, the slaves of a disputed inheritance could be tortured, because their owner was dead, and they did not yet have a new owner;127 on Magnus’ own argument that Roscius had been proscribed, this would be a relevant argument. Indeed, when an owner of slaves died in mysterious circumstances, the whole slave household was normally put to the question,128 and when it was upon a journey, those slaves who were with him. Cicero’s counter-charge There is one paragraph in the speech which suggests that Erucius added to the murder charge another of peculatus.129 This, I think, must be ironic, since only senators, and senators holding public office at that, would have been liable at this period.130 One must suppose that he was implying that Sextus was withholding some of his father’s property that now was the state’s; the actual liability in such a case would presumably fall under one of the proscription statutes. Cicero then moved on to the attack, suggesting that Magnus and Capito were far more likely than Sextus as the killers of Roscius. Cassius Longinus, consul in 127 BC, had always asked ‘cui bono?’. Well here it is clear, says Cicero. Sextus is reduced to beggary, and Magnus enjoys the fruits of Roscius senior’s property. Magnus had formerly been a poor man, and an enemy of Roscius senior. Now he had become rich by entering into a partnership with a perfect stranger to gain possession of the fortune of a kinsman and fellow-townsman. Who was more likely to kill? The enemy? Or the son? The major weakness of this argument is that at the actual moment of the killing, Sextus would have expected to inherit.131 In the troubles – when of course Sulla had been too busy to know of evil 124

125

126 127 128 129 130 131

D 48.18.1.5 and 16, Ulpian; 48.18.15.2, Call.; PS 1.12.3. An exception was made, because of the usually domestic locus of the crime, for charges of incest during the Republic, and, in later times, of adultery. As did Piso in AD 20 (Tac. Ann. 3.14.2). It is forbidden in D 48.18.18.7, Paul, and in CJ 9.41.7, AD 286, but in this rescript it seems to be feared that they would accuse; in CJ 4.20.8, AD 294, it is permitted. An accuser might not offer slaves from his own household, according to the divi fratres (D 48.18.1.3, Ulpian); presumably the fear here is that they would say what they had been instructed to say. Cicero, Clu. 63.176–77; 65.182–66.186. D 48.18.17.2, Papinian. Cic. ad fam. 4.12.3; this was the custom that lay behind the SC Silanianum of (?) AD 10. Rosc. Am. 29.82. Briefly, Robinson (1995b), 81–82. As pointed out by Kinsey (1985a).

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deeds – men had taken revenge on their enemies and recuperated their fortunes. Cicero could talk at length about that. Not only had Magnus the motive, he also had the opportunity. Roscius was killed in Rome, and Magnus was in Rome; although, Cicero admits, so were many others. Cicero then returns to the facts.132 Roscius was killed in the evening, returning from supper. The news of Roscius’ death was brought to Ameria before daybreak by Mallius Glaucia, Magnus’ client and familiaris. He brought the news to Capito (which certainly exculpates Capito from murder by his own hand), even though Roscius had a house, a wife and children (presumably daughters) at Ameria,133 and many other kinsmen and friends. Glaucia’s was an extremely rapid journey, all through a sleepless night. The distance is more than 50 miles from Rome; Arpinum was somewhat farther, closer to 60 miles, and when travelling comfortably the Cicero household would take three days for that journey.134 Cicero is not – perhaps – accusing Glaucia of personally committing the murder; his concern is with who planned it. But if Glaucia did not do the deed, how did he know about it so quickly? Why should Magnus want Capito informed so soon? Cicero does not know, but, and we are back with innuendo again, Capito is in possession of three of Roscius’ farms. Capito’s murders are notorious – a very vague statement, of course. Further, Capito has been fed his testimony by Erucius; evidence given by one among the accusers is tainted. Looked at objectively, it could well be that Glaucia knew how to find the house of Capito but not that of Roscius; he could have preferred to tell Capito so that a kinsman would break the news to Roscius’ widow. He could have brought the dagger which had done the deed because it might have provided a clue. On the other hand, the extraordinary speed does remain suspicious. There seems to be no need for it, unless a plot had already been made to make use of the death, with the alliance of Chrysogonus, which would suggest very quick, and dishonest, thinking, but does not imply murder by Magnus or at his instance. Then there comes Cicero’s second version of how the news was brought to Chrysogonus at Volaterrae;135 the presumption must be that it was by or through Magnus, still, in this version, four days after the death. Chrysogonus saw to it that Roscius’ property was sold at once, although he had no idea who Roscius was. Who could have told him but some fellow-townsman of the dead man? Betrayal in those days was generally by neighbours and false friends, says Cicero, truthfully enough. Magnus and Capito, like other 132 133

134 135

Rosc. Am. 34.96; he has already said this in 7.19. The widow is not otherwise mentioned. The house in Ameria had been seized. Did she too seek refuge with Caecilia Metella, or did she return to her own family? She was clearly not in court to support her son (or possibly stepson), but at least, unlike Sassia with her son, she was not hostile to him. Shackleton Bailey (1971), 3. Rosc. Am. 36.105–37.108; cf. 7.20–8.21.

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Roscii, had hereditary patrons among the great men of Rome, but they had made themselves clients of Chrysogonus. To whom else did Chrysogonus grant shares in this property? Nobody; it was split three ways. And why should Chrysogonus reward these two if they had not performed a service for him? Then, when the Amerians felt concern about Roscius’ fate, Capito was on the deputation to Sulla. He prevented them getting to Sulla; he revealed their purpose to Chrysogonus; he warned Chrysogonus of the need to safeguard their hold on Roscius’ property; he advised going about things quietly; he guaranteed to his fellow-townsmen that the proscription would be undone.136 What a false friend, what a treacherous mandatary, says Cicero, as much to the rest of the delegation as to Sextus. It seems a little strange that the delegation should have had not the least suspicion of Capito’s wickedness, their fellow decurion, if his hostility to his kinsman Roscius senior was well-known, or if his reputation was as bad as Cicero makes out. But perhaps their courage was failing them in the vicinity of Sulla, or perhaps they were bribed to go away, and they are unlikely to have wanted to risk much for such an unsociable man as Sextus Roscius junior. And Capito may well have been a convincing talker. The slaves of Roscius Cicero returns to the issue of the slaves. The defence had frequently asked for the two slaves to be put to the question. Magnus had always refused, although no interrogation concerning him was proposed, or indeed could lawfully have been conducted. But the request was reasonable, and made by great men, a Scipio and a Metellus. Magnus’ refusal amounted, says Cicero, to a confession. Cicero does not know if they were guilty or innocent, but their ‘honourable’ treatment by Magnus shows that they must know something which would ruin Magnus if revealed.137 For the slaves had been there when Roscius was killed. Anyone who wished them interrogated wanted the truth; someone who refused the interrogation must want the truth concealed.138 Obviously, they cannot have killed the father at the son’s order, or the prosecution would have alleged this. If the death was premeditated, they might have been bribed to kill, or merely not to defend their owner. It is also very possible that Roscius was killed by casual, unidentifiable muggers, and that the slaves were fearful because they had not prevented his death.139 They could have gone at once to Magnus, because he was after all 136 137 138 139

This version, Rosc. Am. 38.109–10, seems more plausible than that in 9.25–26, and explains why Capito should have been given three farms outright. Rosc. Am. 41.119–20. Rosc. Am. 42.123. Certainly after the SC Silanianum, and by custom at this period, they could have been executed for this failure (D 29.5.1.31, Ulpian).

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a kinsman and fellow townsman of Roscius senior, with the news of the killing, whether or not they realised their plight. If Magnus was no murderer but an extremely quick-witted man, who saw at once how to turn the situation to his advantage, then keeping the slaves out of the way would help avoid publicity until the takeover of the farms had been arranged. But I do find the refusal to allow their being put to the question a distinctly suspicious feature of the prosecution’s behaviour. Roscius’ estate Cicero then moves to the third objective in his speech, saving Sextus from the power of Chrysogonus. Chrysogonus bought up Roscius’ estate. How was Roscius’ estate available? Of course, such a sale of the property of an innocent man was always shameful, but it had been happening all the time; Roscius’ case was in this respect no worse than many others – which was undoubtedly true. The law, Valerian or Cornelian, put up for sale the property of those who had been listed as proscribed – of whom Roscius was not one – or who had been killed in adversariorum praesidiis140 – and Roscius had been of the Sullan party. He was killed in time of peace, returning from supper. Only if he was slain in accordance with the law could his property lawfully be sold up. The proscription lists were closed on 1 June 81. Roscius was killed months later. So either the sale was not executed through the public records, in which case it was a purely private enterprise, or it was done through the public records, but only by falsifying them. Sextus was more worried about his life and reputation than his fortune, but it was still a matter worth pursuing. So, why was the property of an optimate sold up? Why was it sold up many months after 1 June? And why was it sold at so low a price? These were clear indications of dirty work at the crossroads. And Chrysogonus was the one with extravagant needs, with his fine house, or rather ‘a manufactory of wickedness and a lodging-house of every sort of crime’.141 Cicero did not find fault with punishing the populares who fought against Sulla, or with rewards to faithful followers, but the war was not fought to enrich the base. Chrysogonus had excessive power, excessive because it was not a power given by the laws, but simply sprang from the influence and wealth of a former slave, a power which the optimates could and should curb. But these arguments were Cicero’s own, not his client’s.142 Sextus cared far more for his reputation and his life than his fortune, Cicero repeated. Further, the statute laid down that their fathers’ properties were not to be restored to the children of the proscribed.143 Sextus’ very 140 141 142 143

‘Within the enemy’s stronghold’ (Rosc. Am. 43.126). ‘officina nequitiae et deversorium flagitiorum omnium’ (Rosc. Am. 46.134). Stressed also by Gruen (1968), 269f. Rosc. Am. 50.145.

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food and clothes were the gift of Caecilia, a gift from one of the nobles, from one of Sulla’s side. Caecilia was caring for his domestic affairs, while young Messalla144 had undertaken the conduct of his affairs in the forum and the court, as far as it was possible for one so young. Sextus’ hope lay in the sense of justice of the jurors hearing this case, senators all. Let them banish cruelty from the state, and restore pity. Cicero’s appeal to the jurors in this speech was based on the need for reconciliation, after such a long series of wars and massacres, of which Sulla’s, as has been pointed out, was only the latest.145 It was also based on the appeal to senators to discourage the influence of a mere freedman, even if he was Sulla’s freedman. The issue of the sack as the penalty for parricide brought out a fine purple passage, which he later acknowledged was rather too purple. The message hammered home, however, was the importance of the rule of law. The case of Sextus Roscius, like that of Cluentius, had the dreadful background of the Social War and the civil wars ending in the Sullan proscriptions; memories impossible to eradicate burned in the hostility between Sextus and his cousins, as between Cluentius and Oppianicus. The legal issues raised by these prosecutions were not irrelevant, but nor was the simple question: whose side were you on? The senators, as leaders of society, could, and should, restore peace, defending due process, and the genuineness of Sulla’s legal reforms. Pro Roscio was a speech tailored for the year. To my mind, it is pretty unlikely that Sextus arranged the murder of his father; his rural isolation, agreed by both sides, and the fact that it was the prosecution which refused to produce the slaves accompanying Roscius senior, weigh heavy. But it seems even less likely that Sextus recovered the whole estate, despite his probable acquittal, since few, if any, courts would be willing to upset the property settlements of the recent years. This was, however, a trial conducted according to the proper formalities, an accused charged with a definable crime, and a defence permitted to be made. It is for us a recognizable world, unlike that of the Bacchanalian affair.

144 145

Depending on which Messalla, he will have been consul in 61 or 53 Hinard (1985), 152.

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BC.

Chapter 3 THE TRIAL OF CN. CALPURNIUS P I S O I N AD 2 0

The trial before the Senate of Cn. Calpurnius Piso senior for his part in the death of Germanicus and for (other) treasonable activities is the trial recorded at greatest length by Tacitus; unfortunately he omits many details that would have been of the highest legal interest. Nevertheless such extensive treatment is in itself significant for our view of the political nature of Roman attitudes to penal practice and penal policy.

The sources Tacitus is, as usual, concerned in this account to show the dark side of Tiberius’ character, perhaps even to equate him with Domitian.1 Of the first treason trials, it has been said: We cannot avoid the conclusion that in his account of the two maiestas cases in AD 14 Tacitus has so shaped and coloured the description by his own view of later events as to lose all claim to historical objectivity. . . . Where there is room for doubt Tacitus’ procedure is always the same: he admits that it exists, and goes on to write as if it did not.2 In our attempts to weigh the degree of Tacitus’ prejudice, it seems to me relevant that the Piso affair happened when it did, as early as AD 20. While it seems likely that Tiberius did suffer a psychological, or physiological, crisis that turned him from an austere, reserved, conscientious ruler of rather gloomy temperament into a paranoid tyrant, this was not until AD 26, when he retired to Capri, or later (perhaps not even until 31 and the fall of Sejanus, the first senator executed simply at the emperor’s order). Therefore I am 1

2

Syme (1958), 422. One must remember that Tacitus was a senator who reached the consulship, and the governorship of Asia; he knew from first hand how opaque might be the processes of government. His innuendos were not those of a simple or uninformed man. Walker (1960), 91, 108.

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inclined to look for a normal rather than a sinister interpretation of his actions, and to accept that he was indeed trying to keep separate his private and public persons, and that he truly grieved for Germanicus. This would not exclude the existence of tensions between the emperor and his adopted son, arising perhaps as much from differences of character as of policy. And there is no reason to doubt that there was feminine manoeuvring within the imperial family, that Livia, Augustus’ widow and Tiberius’ mother, favoured Plancina, wife of Piso, and disliked Agrippina, wife of Germanicus,3 and that she brought influence to bear to ensure Plancina’s pardon. Plancina, after all, was only a woman; she was no threat to the wellbeing of the state, and poisoning Germanicus could not be laid at her – or anyone’s – door. In the late 1980s some copies, one almost complete, were found in Baetica (southern Spain) of an inscription recording the resolutions of the Senate on the trial and suicide of Piso and the trials of his son, his wife and his associates, the SC de Cn. Pisone patre (SCPP). This can act as some sort of control on Tacitus’ account, just as epigraphic and literary evidence were paired in the chapter on the Bacchanalian affair. In this case, however, it is safe to infer that Tacitus knew the contents of the original senatusconsultum, so the SCPP is not in that sense independent evidence, but provides a sidelight on Tacitus’ historical methods. Furthermore, the SCPP also has its own sub-text.

Germanicus and Piso To start with an outline of the facts as we are given them by Tacitus. On 10 October AD 19 Germanicus, grandson of Augustus’ wife Livia, nephew and adopted son of Tiberius, and brother of the future emperor Claudius, died in mysterious circumstances while governing the eastern provinces with maius imperium. He was given this office in AD 17 because he was Tiberius’ heir, and it had become customary under Augustus that the emperor’s heir should get experience of government in the eastern part of the Empire; this had been the case for Agrippa, Gaius Caesar, and Tiberius himself. The king of Cappadocia had just died in Rome of natural causes; Cappadocia (in eastern Asia Minor, adjoining Syria, Parthia and Armenia) needed to be integrated into the Roman Empire as a province. Relations with Parthia, the only other great power in the western world, were often tense. Armenia was the buffer state between the two empires, and Germanicus would need to deal with the uneasy political situation there.4 Piso had 3

4

Ann. 2.43.3–6. (In this chapter I shall cite simply Annals, without Tacitus.) Although the brothers, Germanicus and Drusus, were good friends, enmity was also rumoured between Agrippina and Livilla, Drusus’ wife. Ann. 2.43.1–2.

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at the same time been made governor of Syria, in succession to Creticus Silanus. Silanus had been in post for nearly six years; further, his daughter was betrothed to Germanicus’ son, and so Silanus was unsuitable as a counter-weight to Germanicus, if one were needed. Piso was of distinguished background. His father had been a supporter of the republican party against Julius Caesar and the triumvirate, but Augustus had eventually induced him to accept a consulship in 23 BC. ‘Our’ Piso had shared the consulship with Tiberius in 7 BC. There are various reports of his incautiously independent behaviour in the Senate in AD 15 and 16.5 Tiberius, however, seems to have viewed him as a trusted friend, and as a man of weight. Piso was the emperor’s, not Germanicus’, legatus in Syria, but he was also appointed as Germanicus’ adiutor. Tacitus reports that Piso was certain that the purpose of his appointment was to act as a check on Germanicus;6 this is not impossible, as Tiberius may have been a little apprehensive of Germanicus’ thirst for military glory. It was also rumoured that Plancina, Piso’s wife, was being urged by Livia to make life difficult for Agrippina, wife of Germanicus.7 Tacitus tells us that Piso and Germanicus met briefly on the island of Rhodes, while Piso was on his way to Syria.8 Once on station, in AD 18, Piso is reported as having set to work to destroy military discipline;9 this seems both uncharacteristic and pointless. Furthermore, and less implausibly, Piso was contumacious, if not actually mutinous, for, ordered by Germanicus under his maius imperium to come with part of his army, or to send it with his son, to Armenia, Piso did neither.10 Piso and Germanicus were clearly on bad terms in winter quarters, established that year at Cyrrhus in northern Syria, and this ill-feeling was fanned by some of Germanicus’ friends.11 In the following year, AD 19, Germanicus went off to visit the antiquities of Egypt and nearby parts;12 Tiberius was angered by this breach of the convention established by Augustus that no senator should visit Egypt without specific imperial leave.13 It remains doubtful whether Germanicus thought this covered by his imperium maius, though surely his remit had been made clear,14 or if he simply thought of himself as 5

Ann. 1.74.6; 1.79.5; Dio Cassius 57.15.9; Tac. Ann. 2.35. In the last instance, Piso held that Tiberius’ absence was all the more reason for the Senate not to adjourn, but to conduct business in the public interest. 6 Ann. 2.43.4. 7 Ann. 2.43.3–6. 8 Ann. 2.55.3–4; Tacitus implies there was already deep hostility between them. 9 Ann. 2.55.5–6; Goodyear (1981), ad loc. cit. wonders if Piso had a mental breakdown. 10 Ann. 2.57.1. Piso could have had his reasons. 11 Ann. 2.57.2–4. 12 Ann. 2.59.1; 2.60–61. His fondness for such visits had been amply shown during his journey out to the East (Ann. 2.53–54). See also Hennig (1972); Weingartner (1969). 13 Ann. 2.59.2–3. 14 Weingartner (1969), 33–46.

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above such rules; in the latter case one sees why Tiberius might have wanted a reliable friend in the vicinity. In his absence Piso altered the disposition of the troops.15 Again, this might be construed as a breach of military discipline, or even sedition, but Piso did have imperium, and the commanderin-chief was away. When Germanicus learned of this, there were violent reciprocal denunciations, and Piso determined to leave Syria; had he done so without authorization he would certainly have been liable under the lex Iulia maiestatis.16 Then Germanicus fell ill while returning from Egypt, and Piso postponed his departure, which would seem to be a proper course of action in the interests of Rome. Having received news of Germanicus’ improvement, Piso moved from Antioch to a town on the coast.17 But then Germanicus had a relapse – aggravated by his belief that Piso had poisoned him. Examination of the floor and walls of his bedroom revealed the remains of human bodies, spells, curses, lead tablets inscribed with the patient’s name, charred and bloody ashes, and other malignant objects which are supposed to consign souls to the powers of the tomb. At the same time agents of Piso were accused of spying on the sickbed.18 Germanicus, however, was well enough to write to Piso, renouncing his friendship,19 and almost certainly ordering him out of the province; at any rate, Piso left Syria for the island of Cos.20 Suetonius’ version extols Germanicus’ leniency:

15 16 17 18

19 20

Ann. 2.69.1. It would amount to deserting imperium exercitumve (D 48.4.3, Marcian). Ann. 2.69.2. Ann. 2.69.3: ‘saevam vim morbi augebat persuasio veneni, a Pisone accepti; et reperiebantur solo ac parietibus erutae humanorum corporum reliquiae, carmina et devotiones, et nomen Germanici plumbeis tabulis insculptum, semusti cineres, ac tabe obliti; aliaque maleficia quis creditur animas numinibus infernis sacrari. simul missi a Pisone incusabantur ut valetudinis adversa rimantes.’ Za¨ch (1972) thinks Dio Cassius (57.18.9–10) more likely to have used the same sources as Tacitus than to have copied him when he says: ‘[Germanicus’] death occurred at Antioch as the result of a plot formed by Piso and Plancina. For human bones that had been buried in the house where he dwelt and sheets of lead containing curses together with his name were found while he was yet alive; and that poison was the means of his carrying off was revealed by the condition of his body, which was brought into the Forum and exhibited to all who were present. Piso later returned to Rome and was brought before the Senate on the charge of murder by Tiberius himself, who thus endeavoured to clear himself of the suspicion of having destroyed Germanicus; but Piso secured a postponement of his trial and committed suicide.’ Ann. 2.70.1 The SCPP, ll. 28–29, remarked that Germanicus ‘non inmerito amicitiam ei renuntiasse’; cf. Rogers (1959). Ann. 2.70.2.

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[W]hen Piso was annulling [Germanicus’] decrees and maltreating his dependants, he could not make up his mind to break with him, until he found himself assailed also by potions and spells. Even then he went no farther than formally to renounce Piso’s friendship in the traditional fashion (more maiorum), and to bid his household avenge him, in case anything should befall him.21 But Germanicus did not get better. On his deathbed he accused Piso and Plancina of at least hastening, and perhaps of complicity in, his death – killed by a woman’s treachery (muliebri fraude cecidisse). He requested his friends to protest to the Senate and to invoke the law; sympathy would lie with the accusers of Piso, whose defence would be either unbelievable or unforgivable.22 His body was on view before his cremation in Antioch; ‘it is uncertain if the body showed signs of poisoning’.23 After Germanicus’ death The legates and other senators in Germanicus’ entourage then had to resolve the question of who should take over the Syrian command, something which suggests that Piso had indeed left under orders; this was decided in favour of Cn. Sentius Saturninus rather than Gaius Vibius Marsus. Meanwhile, Publius Vitellius, Quintus Veranius and others among Germanicus’ retinue had already begun to prepare charges against Piso and Plancina. ‘At their demand, Sentius dispatched to Rome a woman called Martina, who was notorious in the province as a poisoner; Plancina was very fond of her.’24 Agrippina took ship for Rome with her children and her husband’s ashes.25 Piso was still at Cos when he heard of Germanicus’ death, and he was alleged to have made celebratory sacrifices in the temples there;26 Plancina at that time resumed normal dress after mourning a sister27 – which, to say the least, was bad timing. Piso, we are told, wondered about whether he might return to Syria, urged by numbers of centurions (presumably from the army there), and take back command.28 His son Marcus tried to 21 22 23 24 25 26 27 28

Suet. Cal. 3.3. Ann. 2.71. It seems not impossible that Germanicus had a high fever, and may even have been hallucinating. Ann. 2.73.4. Ann. 2.74: ‘isque infamem veneficiis ea in provincia et Plancinae percaram nomine Martinam in urbem misit.’ Ann. 2.75.1. The temples were closed as a sign of mourning; see SCPP, ll. 64–65. Ann. 2.75.2. Ann. 2.76.1. This was a specific offence under the lex Iulia maiestatis – D 48.4.3, Marcian). In view of these centurions, and the many deserters mentioned later (Ann. 2.78.2; 2.80.1) – the army in Syria was in a state of some confusion, if not worse.

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discourage him from such plans, on the grounds that his quarrel with Germanicus had done nothing so far to earn punishment, only unpopularity, and that his return to the province might well provoke a civil war.29 Domitius Celer, however, one of his closest friends, persuaded him that he was the lawful governor, approved as such by the emperor.30 Piso therefore set out, after writing to Tiberius complaining of Germanicus’ conduct and his own expulsion from his province.31 A warning message from Vibius, second-in-command in Syria, urging him to return to Rome, was treated with disdain; Piso replied that he would appear when cited before the praetor de veneficiis.32 He and Domitius with their troops failed to disturb Sentius, who warned him that his conduct was treasonable;33 Piso was defeated in a minor battle, and sent back to Rome with a naval escort and a safe conduct.34 This seems an excellent illustration of the political sensitivity. Piso had been taken in arms against a Roman army, but he had been Tiberius’ appointment; further, it was normal to do no more than put accused members of the upper classes under house arrest. Even so, Piso’s treatment was obviously respectful; he was able on this voyage to tour Asia and Achaea, and visit Drusus, Germanicus’ younger brother, in Illyricum.35 Meanwhile, at Rome, on the news of Germanicus’ death there were extraordinary scenes of general grief,36 and then many honours were paid to the dead man.37 Tacitus, however, says that Tiberius could hardly conceal his delight at the news; this presumably means that the emperor was his usual taciturn self.38 Before the end of the year Agrippina arrived in Rome, after a dangerous winter voyage and a solemn journey through Italy, with the ashes of her husband.39 The ashes were deposited in the Mausoleum of Augustus; this was not a funeral, and quite properly was not treated as such by the emperor,40 but it gave rise to popular indignation. After this, the

29 30 31 32

33 34 35 36 37 38 39 40

Ann. 2.76.2–3. Ann. 2.77. Ann. 2.78.1. Ann. 2.79.1: ‘Marsusque Vibius nuntiavit Pisoni ‘‘Romam ad dicendam causam veniret’’. Ille eludens respondit ‘‘adfuturum ubi praetor qui de veneficiis quaereret reo atque accusatoribus diem praedixisset’’.’ Ann. 2.79.2–80.2. Ann. 2.80.3–81.3. Ann. 3.7.1; 3.8.1–2; 3.9.1. Ann. 2.82; 3.1–2 and 4–5. It is somewhat reminiscent of the bizarre manifestations of grief over the death of Diana, Princess of Wales. Ann. 2. 83; Suet. Cal. 5–6. The Senate met on 16 December, and then at another session, to decree the formal honours; see Gonzalez (1999). Ann. 3.2.3. Ann. 3.1–2. Ann. 3.3 and 3.6. See Woodman and Martin (1996), 98. The funeral, although sine imaginibus et pompa, had already been held; it would be contrary to sacral law to repeat it.

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thoughts of many turned to seeking retribution from Piso, who had still not returned to Rome, and was said to be suppressing the proofs of his crimes. ‘For it had become known that the notorious poisoner, Martina, sent to Rome – as I have mentioned – by Sentius, had suddenly died at Brundisium, with poison found hidden in a knot of her hair, and that her body bore no signs of suicide.’41 Piso sent his son, Marcus, on ahead, and himself arrived at Rome, probably in June of AD 20. He voyaged up the Tiber, landed by the Mausoleum, and then went cheerfully with Plancina and a large escort to dine festively at his house overlooking the Forum.42 At this point, before we move to the account of the trial of Piso, it is suitable to consider the crime of which Piso was soon to stand accused.

Treason Treason was undoubtedly the appropriate crime with which to charge Piso. Treason is in one way the fundamental crime; it is an attack on the organisation of society. Naturally it is a crime with a long history at Rome, going back to the time of the kings; it was the crime with which the assembly trials, iudicia populi, were largely concerned. Perduellio was the old term, the term for high treason, such as the betrayal of Rome or things Roman to an enemy in arms; maiestas, more properly crimen laesae maiestatis populi romani, the crime of diminishing the majesty of the Roman people – or of the emperor – was essentially an internal matter. Further, treason is bound to have a political flavour, and this was certainly, and inevitably, true for the way in which the trial of Piso was handled. Treason had moved some way into the field of law with the statutes which established and affirmed the standing jury-court, the quaestio de maiestate, originally by the lex Appuleia, probably of 103 BC, and certainly confirmed by Sulla. Augustus’ lex Iulia of 8 BC superseded all its predecessors, and we have direct citation of some of its sections.43 Treason, as explained in a simple treatise of the late third century, comprised taking up arms against the state, waging war or levying troops without authorization, leading armies into ambush, or desertion; moreover, it covered words as well as deeds.44 The range of crime was wide, from high treason, the deliberate betrayal of one’s country to an enemy, through disloyal behaviour by one in authority, and so to lese-majeste´, the diminishing of the honour of the emperor and his family. Tacitus alleges 41

42 43 44

Ann. 3.7.2: ‘Nam vulgatum erat missam, ut dixi, a Cn. Sentio famosam veneficiis Martinam subita morte Brundisii exstinctam venenumque nodo crinium eius occultatum nec ulla in corpore signa sumpti exitii reperta.’ Ann. 3.9.2–3. The exact site of the house is disputed, but the SCPP, ll. 105–08, ordered the demolition of what Piso had built over the porta Fontinalis to join his private houses. Cloud, (1963). PS 5.29.1. See also Chilton (1955); Bauman (1967) and (1974); Robinson (1995), 74–80.

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that treason was regularly added as an aggravating charge to such accusations as res repetundae (extortion) or adultery – omnium accusationum complementum.45 Yet in Piso’s case, the focus of the story was more on the ambivalent death of Germanicus than on mutiny, sedition and treason.

Delators46 On the day after Piso’s arrival in Rome, L. Fulcinius Trio, ‘a talented but unscrupulous prosecutor’ who had previously demanded a Senate inquiry into Libo’s astrological interests,47 applied to the consuls for leave to accuse Piso. Trio appears reasonably typical of the tribe of delatores which Tacitus so detested as a pest, even a danger, to society. We have seen in chapter 2 how prosecution was regarded as a necessary but morally dubious activity. The growth in the number of delators seems partly an unintended result of Augustus’ laws supporting marriage and the family, but earlier the Sullan proscriptions must have had something of the same effect.48 These Augustan laws failed to popularize marriage and the raising of families, but increasingly many people were liable to penalties since every household was exposed to informers’ claims. . . . There were spies, encouraged by inducements from the Papian-Poppaean Law, under which failure to earn the advantages of parenthood meant loss of property to the state as universal parent. The spreading encroachments of the informers grievously affected all citizens, whether in Rome, Italy or elsewhere, and caused widespread ruin and universal panic.49 Yet, naturally, both Tacitus and his readership were more concerned with the prosecution of treason than of more domestic lapses. Of the delator

45

46 47

48 49

Ann. 3.38.1. There were other cases in this period. Clutorius Priscus suffered for writing an elegy for Drusus, who was still alive, as well as for Germanicus, who was not (Ann. 3.49–51). An eques called Ennius was charged with treason for melting down a silver statue of the emperor and reusing the silver, but Tiberius stopped the proceedings (Ann. 3.70, probably referred to in D 48.4.4.1, Scaevola), where the statues are described as reprobatas; in 48.4.6, Ven. Sat., however, we find the melting down of a statue that had been consecrated brought under the lex Julia on treason. For recent substantial treatments of delators, see Rutledge (2001); Rivie`re (2002). Ann. 2.28.3 and 2.32.1; Scribonius Libo Drusus was alleged to have plotted to seize the throne after reading various astrological predictions. After his suicide following on a treason charge in AD 16, his property had been divided among his accusers. Libo was almost certainly a fatuous fop rather than a wily plotter, but nevertheless dangerous. Robinson (1995), 100; Robinson (2006); the lex Voconia seems also to have been fruitful for delators; for the earlier period, see, e.g. Cicero, 2 Verr. 1.47.123–24. Tac. Ann. 3.25 and 3.28.3.

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Romanius Hispo he remarked: ‘Over one man he enjoyed an ascendancy; all others loathed him. His was the precedent which enabled imitators to exchange beggary for wealth, to inspire dread instead of contempt.’50 Another, Domitius Afer, brought accusations against Claudia Pulchra of adultery, attempted poisoning of the emperor, and magic; he was later to accuse her son. ‘After long poverty Afer had made money and misused it, and it surprised no one that he now had further infamous designs.’51 Dio could say that under Tiberius all who accused any persons received money, and large sums too, both from the victims’ estates and from the public treasury, as well as various honours.52 Suetonius praised Titus for dealing severely with delators, who seem in his account to have been excluded from the protection of the lex Iulia de vi;53 although many delators in Tacitus’ portrayal were senators, those suffering under Titus were probably humble delators to the fisc.54 They were a pest under Domitian, so Pliny praises Trajan for having exiled delators rather than senators and filled the punishment islands of the Mediterranean with these scourges,55 but his remarks on the delatores of his day suggest that the problem, although still real, was less concerned with senatorial accusers than it had been.56 However, although the Romans never developed a state prosecution service, attitudes to prosecution did change; there came to be restrictions on the power to make accusations,57 and the presumption was introduced that an informer without a personal interest was a calumniator.58 Further, the disappearance of the ordo as it was replaced by the universal cognitio of provincial governors (and of the Urban Prefect in the City) allowed a governor to act ex officio on a report, or rumour, rather than subsequent to a formal accusation.

The trial Preliminaries to the trial A request such as Trio’s was becoming normal procedure for a trial before the Senate; it echoed the application for permission to prosecute made to the praetor (or other president) of a standing jury-court (quaestio perpetua) – 50 51 52 53 54 55 56 57 58

Tac. Ann. 1.74. Tac. Ann. 4.52.1 and 4.66.1. Dio Cassius 58.4.8. But see Rogers (1934). Suet. Titus 8.5. See Rivie`re (2002). Pliny, Pan. 35.2; cf. 42.1. E.g. Pliny, Ep. 1.5; 5.13.6–8. Under the Tetrarchy in FIRA i 94, p. 458; later, CTh 9.5.1, AD 319–23; 9.7.2, AD 326. See also Giglio (2002). PS 5.13.1–2. In the Later Empire prosecutions might originate with the authorities, but this was linked with what we would call an inquisitorial approach rather than implying the existence of a separate branch of government. See further on procedural offences in ch. 4.

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the procedure Piso had earlier mocked. Publius Vitellius and Quintus Veranius objected that Trio had no interest; however, they described themselves not as accusers but as witnesses bearing Germanicus’ instructions, despite their having already in Syria begun preparing charges against Piso and Plancina, and having requested that Martina be sent to Rome. Again, it was normal with the ordinary procedure before the quaestiones that, where possible, the principal accuser should be the man with the greatest interest; the rule was that there should be one principal, even if he were to be joined by several associates.59 Trio withdrew his charge – dimissa eius causae delatione, a charge of murder presumably – but obtained leave to accuse Piso of earlier crimes. At this stage the emperor was asked to take over cognizance of the case – cognitionem exciperet,60 but it is not clear at whose initiative – perhaps that of the consuls? (It may even be significant that on two occasions we find Tiberius exercising his detective faculties, once later in the same year, when he interrogated Quirinius’ slaves when Aemilia Lepida was on trial,61 and more dramatically in AD 24, when he visited the scene of the crime after Plautius Silvanus had thrown his wife Apronia out of the window.62) But, whether or not for political reasons, as Tacitus alleges, Tiberius referred the case back to the Senate.63 Piso then set about finding advocates to represent him. Tacitus mentions five men of standing, presumably among the leading orators of the day, who declined on various grounds, but Piso’s brother, L. Calpurnius Piso the augur, with M. Aemilius Lepidus and Livineius Regulus, agreed to support him.64 There then probably followed a gap of several months. The historians have considerable problems about the dating of the whole episode, and indeed about Tacitus’ methods of narrative generally.65 The problem was brought into prominence by the discovery of the SCPP and by its date of 10

59

60 61

62 63

64

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In the ordo the case was argued before the full quaestio perpetua (Cicero div. Caec. 1.1–2.6; Ps. Asc. p. 99; Cicero II Verr. 1.6.15). Erucius was the principal prosecutor in ch. 2. D 48.2.16, Ulpian, must refer to cognitio. Ann. 3.10.1. Ann. 3.23.2; Tiberius himself seems to have discovered, through interrogation of the slaves, that she tried to poison her husband, as well as introducing a suppositious child into his family. Ann. 4.22.2. Ann. 3.10.3: ‘haud fallebat Tiberium moles cognitionis quaque ipse fama distraheretur, igitur paucis familiarium adhibitis minas accusantium et hinc preces audit integramque causam ad senatum remittit.’ Ann. 3.11.2. It was normal before the quaestiones perpetuae for the accused to be represented by more than one advocate, while the prosecution was primarily conducted by one man; so ordinary procedure is echoed here before the Senate. Woodman and Martin (1996), 67–77. See also Champlin (1999), Talbert (1999) and Flower (1999); Levick (1983), 113f, thinks Tacitus quite capable of jumping six months forward and then back.

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December, but the length of time which passed is largely irrelevant to the legal issues. An interval of weeks, or even months, would have been normal in a quaestio trial; Cicero had 110 days to collect evidence against Verres. There is no need to doubt that extraordinary procedure before the Senate or emperor commonly mirrored the norms of the ordo. This interval was for both sides to collect their witnesses and assemble their proofs.66 The opening of the trial Finally there came the day of the Senate’s meeting, the first of its meetings for the trial of Piso. Tiberius seems to have been presiding, since he directed the Senate’s attention to the questions they must consider. It is not quite the same as the speech recorded in the SC, a speech which is explicitly stated to have been made after Piso’s death a week or so later. However, it is by no means impossible that Tacitus used the Senate’s records to help construct the speech he narrates. Anyway, at this stage Tiberius said that he, with the authorisation of the Senate, had sent Piso to be Germanicus’ assistant in the administration of the East. Whether Piso had been insubordinate and quarrelsome there, and had rejoiced at Germanicus’ death, or had even brought it about by poison, were the allegations of which the truth must be ascertained;67 the unsurprising implication was that Piso was guilty of something. If Piso had behaved unbecomingly, and rejoiced at the death of his superior, Tiberius would formally renounce his friendship and close his doors against him, but would not use his public powers to avenge private wrongs. If, however, there was evidence of murder, a crime needing vengeance whatever the victim’s rank, it was for the Senate, as a court, to satisfy Germanicus’ children and his parents – that is, the emperor.68 Further, inquiry should be made as to whether Piso had incited his troops to mutiny and rebellion, bribed them, and sought to recover his province by force of arms, or whether these were falsehoods spread and exaggerated by his accusers.69 Tiberius had found the accusers over-zealous; stripping Germanicus’ body and exposing it had only served to encourage the report that he was poisoned, a matter still to be ascertained. While he grieved for his son, and always would, he must not deny the accused every opportunity to prove his own innocence, and indeed any unfairness on the part of Germanicus.70 He finished by urging both defenders and accusers to their best efforts. In only one respect was Germanicus’ case being dealt with outside 66 67 68 69 70

The presence of documents and witnesses is mentioned in the SCPP, ll. 24–25, and Ann. 3.17. Ann. 3.12.1. Ann. 3.12.2. Ann. 3.12.3. See the sections of the lex Iulia maiestatis cited in D 48.4.1.1 and 48.4.2, Ulpian. Ann. 3.12.4–5.

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the normal course of the law: the trial was before the Senate not a quaestio perpetua.71 By the time of Pliny, as we shall see in the next chapter, cognitio before the Senate had become regulated. The prosecution The prosecution was then allotted two days for the conduct of its case, and the defence, after an interval of six days, three. This was the normal proportion of time allocated to the two sides in trials under the ordo;72 it was still being observed in Pliny’s time in trials before the Senate modelled on the ordo, although modification was possible.73 The Senate’s resolution does not give precise figures.74 However, clearly the trial was extra ordinem; the rules governing trials before the standing jury-courts were being somewhat bent, because Trio opened the prosecution with charges of extortion when Piso was governing Spain years before.75 Tacitus calls these charges old and empty, but attacks on and evidence as to character played an important part in Roman criminal trials; furthermore, while avaritia was a stock charge, ambition was relevant to the present case. This illustrates the main advantage of the cognitio procedure before the Senate – or the emperor, and in due course his delegates. A charge of res repetundae could not, in theory, have been heard before the same quaestio as a charge of treason or of poisoning, for in principle each quaestio perpetua heard only one specific form of charge; thus in this case three separate trials should have been necessary under the ordo.76 (It is, however, probable that the quaestio de maiestate was already falling into desuetude, at least for senators; Libo had been tried for treason before the Senate as early as AD 16.77) Since the charges arose from one set of inter-related acts, justice was more likely to be achieved if they were dealt with at the one trial. Veranius and Vitellius, together with Q. Servaeus (another of Germanicus’ companions in the East), laid accusations against Piso of inciting sedition among his troops, insubordination, and lastly of killing Germanicus by spells and poison (devotionibus et veneno), alleging that then, ‘after his and Plancina’s evil rites and sacrifices (sacra hinc et immolationes nefandas ipsius atque Plancinae)’, he had made war on the res publica.78 Vitellius further argued that Germanicus must have been poisoned since his heart would not 71 72 73 74 75 76 77 78

Ann. 3.12.6–7: ‘super leges praestiterimus quod in curia potius quam in foro, apud senatum quam apud iudices de morte eius anquiritur.’ Asconius, in Milon. 36C. Pliny, Ep. 4.9.9. SCPP, ll. 23–24. Ann. 3.13.1: ‘ambitiose avareque habitam Hispaniam’. Cf. D 48.2.14, Paul: ‘the Senate has ruled that a person cannot be charged on account of the same crime under several statutes’. Ann.2.27–32. Ann. 3.13.2; cf. SCPP, ll. 45–57.

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burn; but Piso’s defence was that neither would organs which were naturally diseased.79 Here, in the acceptance of three prosecutors rather than one, we find a distinct variation from the ordinary procedure of the quaestiones. The defence Tacitus makes no mention of events during the six-day interval, but moves straight from the prosecution’s case to that of the defence. He states that there was no effective defence to the charges of corrupting the troops, harming the province, and insubordination. But the poisoning charge was refuted, particularly the allegation that, at a dinner given by Germanicus, Piso who was sitting next to him, had himself put poison into his host’s food. Piso offered his own slaves for interrogation under torture.80 Tiberius was convinced by now that Piso was guilty of treason, in that he had invaded Syria under arms despite a warning from Sentius, his successor as governor. The Senate remained unconvinced that Germanicus had died naturally, even though the prosecution had failed to prove its case.81 Outside the senate house a mob was demonstrating against Piso, threatening to lynch him and actually dragging his statues to the Gemonian Steps, where the bodies of criminals were rolled into the Tiber,82 but Tiberius had them put back, presumably motivated by the need to maintain public order.83 Piso was given a litter and an escort by a tribune of the Praetorians to get him home safely, or perhaps, as Tacitus says, to see that he died.84 There is a lacuna in the text between Tacitus’ report of the views of the senators and his account of the popular clamour.85 The text suggests that certain letters were being demanded, presumably by the Senate, and not produced, but it is not clear what these were, although the appearance of letters in the trial is confirmed in the SC.86 Quite a few letters had been mentioned in the course of Tacitus’ narrative: Germanicus’ letter to Piso, renouncing his friendship and (presumably) ordering him from his province, Piso’s letters to Tiberius, complaining of Germanicus’ behaviour, Sentius’ letter to Piso, and allegations of ‘secret’ mandates to Piso from Tiberius – as

79

80 81 82 83 84 85 86

Pliny HN 11.71.187. Za¨ch (1972) reports that he sought and obtained confirmation of Piso’s contention from the professor of forensic medicine in Zu¨rich; also the foam from Germanicus’ mouth and the dark spots all over his body, described by Suetonius (Cal.1.2), could equally be symptoms of disease or of poisoning. Ann. 3.14.1–2. We have considered slaves’ evidence, always under torture, in ch. 2. Ann. 3.14.3. E.g. Sejanus and his children (Dio Cassius 58.11.5–6); Vitellius (Dio Cassius 64.21.2). Ann. 3.14.4. Ann. 3.14.5: ‘vario rumore custos saluti an mortis exactor sequeretur’. Woodman and Martin (1996), 159–62. SCPP, ll. 24–25, 38–39.

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regards the last, it would be surprising if someone sent to govern a province was not given confidential imperial mandates. Of these, the Senate would hardly have demanded to see Tiberius’ private correspondence; Sentius’ letter would have been irrelevant to the murder charge; we are told in the SC that Germanicus’ letters were in fact produced at the trial. Therefore it seems most likely that the letters referred to are Piso’s to the emperor. The Senate hoped that his complaints against Germanicus in these letters would strengthen the murder charge by revealing personal hatred, but Tiberius preferred not to disclose them as they amounted to poison-pen letters. But this can only be conjecture. The SC thanks the princeps because ‘he made available to the Senate everything necessary for seeking out the truth’.87 Piso’s end Whatever had happened, Piso returned to the Senate on the second day allotted to the defence, disheartened, according to Tacitus, by the fact that Plancina, in the expectation of a pardon, had already dissociated herself from her husband.88 Tacitus refers to renewed accusation, hostile voices and universal enmity, but presumably there were further speeches for the defence, since the SC records that the case was argued for several days by the accusers and by Piso himself.89 There was presumably also the examination and cross-examination of witnesses. Tacitus describes the silent emperor, deaf to the emotional appeals of both sides, as terrifying rather than reassuring Piso.90 He returned home in despair at the implacability of his judges, and then, according to the SC, committed suicide; it is not clear whether he did this because of the hostile atmosphere or because the evidence had been damning. Tacitus’ version is more detailed, and loaded. On his return home, he wrote a few words, as though considering the next day’s defence, sealed the note and gave it to a freedman. Then he performed his usual toilet; late at night, when his wife had left the bedroom, he ordered the doors to be shut. At dawn he was found with his throat cut, a sword lying beside him on the ground.91 The normality of his behaviour could be due to his being in shock, or it could well be his adoption of traditional Stoicism, a Stoicism suitable for a Republican of noble birth and achievements. 87 88 89

90 91

SCPP, ll. 15–16. Ann. 3.15.1. Woodman and Martin (1996), 160, hold that this description is due to Tacitus’ impressionism, to be interpreted ‘not as an otherwise unexplained return to the formal prosecution but as a resumption of the personal hostility’. Ann. 3.15.2. Ann. 3.15.3.

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Tacitus prefers to imply that he was murdered. He reports that it was known that Piso had a document (libellus), which was often seen in his hands, which contained letters from Tiberius with instructions relating to Germanicus; Piso would have disclosed its contents, and thus convicted the emperor, if he had not been deceived by Sejanus.92 The mention of Sejanus is almost certainly merely the start of scene-setting by Tacitus for the next major episode in the Annals. Certainly the political aspect was sensitive. Piso clearly could not make the defence that the emperor had appointed him to check Germanicus, although there was nothing inherently sinister in such an instruction; equally clearly, a transcription would have had little evidentiary value, and ‘in any case the likelihood of Tiberius’ having incriminated himself either in writing or orally is nil’.93 Tiberius himself must have been regretting his bad judgment in that Piso, his old friend, had been his own choice for the job, yet had undoubtedly acted treasonably, and must now be disowned and discarded. But it is not plausible to believe that he had wanted an overt quarrel, involving actual hostilities, between his heir and his friend, because it served no purpose, damaged Roman prestige, and in the event led to a (fortunately very minor) civil war.

Subsidiary trials Despite Piso’s death, the Senate met again, presumably on the following day, the third provided for the defence. It would have seemed pointless to stop the trial at this stage, when the full truth might still emerge.94 Moreover, Marcus and Plancina had also been indicted, as well as certain members of Piso’s staff. Hence the SC records that Tiberius had asked the Senate to give judgment on what case there had seemed to be against Cn. Piso, whether he appeared deservedly to have killed himself, what case there seemed to be against Marcus Piso (to which he added that the senators should be mindful of his own prayers for the young man), what case there seemed to be and on what grounds against Plancina, for whom Tiberius had earlier petitioned, and what should be done with Visellius Karus and Sempronius Bassus, Piso’s companions.95 Tacitus tells us that Tiberius questioned Piso’s son96 on his father’s behaviour during that last day and night. Thereafter he read Piso’s statement 92 93 94

95 96

Ann. 3.16.1; so too Suet. Tib. 52.3. Woodman and Martin (1996), 171; ‘The passive contineri implies that Piso had transcribed any original litterae and mandata into his libellus.’ On the question of whether treason charges ended with the death of the accused, see D 48.4.11, Ulpian, which applies this only to perduellio, not the maiestas of the Julian law; however, armed invasion of a province would indeed appear to be perduellio. SCPP, ll. 4–11. No name is given in Ann. 3.16.2; Cnaeus, the elder son, seems more likely than Marcus, who was not yet a member of the Senate.

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(codicillos), which must be what Piso had written the previous night, whether as notes for his advocates, or for himself. Piso expressed himself as beset by enemies, falsely charged – he could reasonably play the injured innocent as regards the poisoning, and his own assertion of defence against the treason charges may have been that he had not legally been deprived of his governorship – and always loyal to the emperor and his mother; pleading that loyalty to Augustus’ family, he requested that no harm should come to his older son, Cnaeus, who had been in Rome all the while his father was in the East, nor to Marcus the younger, who had tried to dissuade him from attacking Sentius. No mention was made of Plancina.97 Perhaps at the same session, perhaps later, Tiberius exonerated Marcus, or rather, as the SC specifies, proposed his exoneration from the charge of making civil war, on the grounds that he had a duty to obey his father’s orders. He also expressed regret for the noble family and Piso’s sad end, whether or not it was deserved.98 Two days were spent on the investigation of Plancina; it is not clear whether it was a formal trial. She had originally been protesting loyalty to Piso, but Livia’s promises led her to dissociate herself from him.99 Tacitus here puts in a vicious couple of sentences, accusing Tiberius and Livia of aiming at the destruction of Germanicus’ family, and protecting Plancina. He implies that her trial was a sham,100 with her being assured of pardon. Her sons did not speak on her behalf, despite the emperor’s encouragement,101 so her accusers went unanswered. But clearly there can have been no more proof of poisoning in her case than in Piso’s, and she cannot, as a woman, have been guilty of, or even charged with, his treasonable activities, because, at least under the ordo, such charges were applicable only to men holding office, and their staffs. Yet the SC records that numerous weighty charges had been lodged against her; one must suppose either that the extraordinary procedure allowed consideration of her public conduct, such as attending cavalry exercises,102 or that most of them were irrelevant to the ongoing trial of her husband. The SC also states that Livia used her influence over the Senate very sparingly, but since she had pleaded for Plancina, the punishment of Plancina should be remitted – remittiq[ue] poenam Plancinae. This wording contrasts with the Senate’s conclusion concerning Marcus, to whom inpunitatem . . . dandam esse{t}.103 97

Ann. 3.16.3–4. Cn. Piso junior became consul in 27, and was Urban Prefect at the end of Tiberius’ reign; his son became consul in 57. Marcus incurred no penalty, but disappeared from the view of history. 98 Ann. 3.17.1; SCPP, ll. 100–01. 99 Ann. 3.15.1. 100 Ann. 3.17.3: ‘biduum super hac imagine cognitionis absumptum’. Cf. Marshall (1990). 101 SCPP, ll. 20–22. 102 Ann. 2.55.6. 103 SCPP, ll. 100–01 and 119–20.

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The sentences Presumably at the end of these two days, one of the consuls, Aurelius Cotta, was asked to make the first recommendation to the Senate; he proposed that Piso’s name should be deleted from the calendar, the fasti consulares, that half his property should be confiscated, with Cn. Piso junior keeping the other, but compelled to change his praenomen – in the event he became Lucius, like his uncle – that Marcus should be deprived of the latus clavus and relegated for ten years but allowed 5 million sesterces, and that, on the plea of Livia, Plancina should be pardoned.104 According to Tacitus – the SC records neither Cotta proposing nor Tiberius intervening – Tiberius mitigated the penalties. He left Piso’s name on the fasti, since even the names of Marcus Antonius, and his son Iullus Antonius, remained there;105 Marcus Piso was not to be stripped of his rank, nor relegated, and was allowed his paternal inheritance. There is a degree of divergence between Tacitus’ account of the penalties and those recorded in the SC. In the SC we find it held that Piso did not suffer as he deserved by dying,106 so the Senate voted that there be no mourning for his death by the women of his family, that his statues and portrait masks, wherever displayed, be removed,107 that no portrait mask of him was to be carried in family funeral processions, that his name be removed from the inscription on the statue of Germanicus in the Campus Martius, and that his property, except the lands in Illyricum (which were to revert – on grounds of ingratitude, presumably – to Tiberius since Augustus had presented them to Piso), was to be confiscated.108 However, half the confiscated property was to be granted to Cnaeus Piso the younger, who was advised, being so favoured, to change his praenomen. Marcus was given immunity, and granted the other half of his father’s estate; 5 million sesterces from the whole estate were reserved for Calpurnia, Piso’s daughter,109 1 million as her dowry, the rest as her personal property (peculi [sic] nomine).110 Finally, the curatores locorum publicorum were to see to the demolition of the structure erected by Piso over the porta Fontinalis to join his private houses.111 104 105

106 107 108 109 110 111

Ann. 3.17.4. Plancina did, however, come to her fate in AD 33 (Ann. 6.26.3). Piso’s name was, however, removed from a record of the celebration of games by Tiberius and Piso as joint consuls (CIL VI 385 with 30751) and perhaps also in the Acta Arvalium (CIL VI 2023a, 21) where there is indeed an erasure, but the name erased could as well have been that of Libo Drusus. SCPP, ll. 71–73. Cf. D 48.19.24, Modestinus; see also Flower (1998). SCPP, ll. 73–90. There is a conflict of opinion among the historians as to her identity; Eck et al. (1996), 83ff and 218ff, and Flower (1999) think she was Piso’s granddaughter. SCPP, ll. 93–105. SCPP, ll. 105–08.

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The SC, but not Tacitus, also records that Visellius Karus and Sempronius Bassus, two of Piso’s comites, as socii and ministri in all his crimes, were to be exiled, more specifically, ‘that they should be interdicted from fire and water by the praetor who had charge of the jury-court for treason’, and that all their property was to be confiscated.112 This appears to be a case of the Senate advising or instructing a magistrate how he should proceed. There is no need to envisage a jury empanelled; the praetor, as president of the court, could pronounce the sentence laid down by the statute, even when the proof of the crime had been led elsewhere. But this does suggest that the quaestiones perpetuae were still regarded as the normal courts of criminal law, the iudicia publica. The penalty was the statutory one for treason under the lex Iulia, and Roman criminal law normally imposed the same penalty on accomplices as on the principal. Piso was held manifestly to have ignored the authority of one with maius imperium, to have stirred up the enemies of Rome in Armenia, to have attempted civil war by returning under arms to the province of Syria, to have inflicted capital punishment on many whose cases had been unheard, and even to have crucified a centurion who was a Roman citizen,113 to have corrupted military discipline, to have maintained his complaints about Germanicus even after the latter’s death, and to have rejoiced in that death. The evidence for this last was clear to the Senate: in that impious sacrifices (nefaria sacrificia) had been made by him, the ships in which he sailed had been ‘ornatae’ (presumably something like the modern ‘dressed overall’), he had opened temples (at Cos) closed out of piety, he had given money to the messenger who brought the news, and he had given frequent banquets in the days after the news had reached him. Piso was also held guilty of something akin to blasphemy, numen divi Augusti violatum.114 Tiberius vetoed the proposals of Valerius Messallinus and Caecina Severus for a golden statue in the temple of Mars Ultor or for an altar of vengeance, on the grounds that such things were appropriate for foreign victories, not domestic misfortunes. Valerius Messallinus had also proposed formal thanks to Tiberius, Livia, Antonia (Germanicus’ mother), Agrippina (his wife), and Drusus (his brother), for avenging Germanicus; the name of Claudius, Germanicus’ other brother and the future emperor, was added to the family list only when L. Asprenas pointed out the omission.115 This was done, as the SC witnesses, with praises for the justice and restraint of Tiberius, Livia and Drusus. The Senate commended Agrippina, Antonia, Livia the sister of Germanicus, his children, and his brother, as also the conduct of the equestrian order, of the populus, and of those soldiers who had resisted Piso’s 112 113 114 115

SCPP, ll. 120–23: ‘aqua et igne interdicti oportere ab eo praetore qui legem maiestatis quaereret’. Seneca de ira 1.18.3 is presumably recording this occasion, although he does not mention crucifixion as the penalty. SCPP, ll. 68–70. Ann. 3.18.2–3.

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solicitations and remained faithful to the family of Augustus. Tiberius’ speech to the Senate and the consequent resolution, specifically a single decree,116 were to be inscribed and set up where it should please Tiberius, and also in every leading provincial city and in the winter quarters of each legion. The SC was a carefully drafted document. It ignored any awkward questions, such as Tiberius’ own (indirect) responsibility for Piso’s conduct, and it praised the whole established order, including the Roman people. Yet one could argue that it also recognized the importance of reconciliation, of maintaining the social bonds that held together the orders; despite the individual blot, the Calpurnii Pisones continued to thrive. There is no reason to doubt that there was a deep-rooted fear of the return of the civil wars. It was indeed a whitewash, but it is hard to see what else could have been done.117 Some days later, Tiberius rewarded the three main prosecutors (but not Trio), not of course with Piso’s estate,118 but by putting them forward for priesthoods; Trio he promised to help in his official career (and indeed he became suffect consul in 31), but also warned him to be less aggressive. Thus ended the vengeance for Germanicus, and Drusus left Rome.119 But was Germanicus avenged? The senatorial tradition continued to maintain that Tiberius was hostile to Germanicus’ wife and family.120 Despite Germanicus’ own belief and his own allegations, no proof was ever brought that he was poisoned, and the Senate seems reluctantly to have accepted Piso’s innocence of active harm. The contumely Germanicus had suffered from Piso’s insubordination was avenged, but was that really vengeance? Was his death in fact natural? Poison was often suspected when medical knowledge was insufficient to diagnose internal diseases. Was Martina a red herring? Cursings could have been the work of a disgruntled household slave, or indeed have stemmed from the machinations of Livia. A mystery remains. (As a footnote, the affair may well have contributed to the resolution of the Senate making a governor liable for his wife’s delicts, although the immediate context was probably the trial of Gaius Silius in AD 24.121) 116

117 118

119 120 121

The writing of this SC on 10 December, in the portico of Apollo’s temple on the Palatine – as good a place as any for the Senate to meet – was witnessed by M. Valerius Messallinus, C. Ateius Capito, Sextus Pompeius, M. Pompeius Priscus, C. Arrenus Gallus, and L. Nonius Asprenas and M. Vinucius, the last two being quaestors. 301 senators were present. See Griffin (1997). It is uncertain what the law was on rewards at this time, or indeed whether there was a rule. In AD 16 Libo’s property was divided among his accusers (Ann. 2.32.1); in AD 24, in a repetundae case, Tacitus has M. Lepidus say that the law required that a quarter of a condemned man’s estate should go the prosecutors (Ann. 4.20.2). Ann. 3.19. Not only Tacitus, but also Suet. Tib. 52.3–54; Dio Cassius 57.18.6. Josephus (AJ 18.54) believed that Germanicus was poisoned. D 1.16.4.2, Ulpian, and Ann. 4.18–20 give different occasions for this SC.

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The survival of the standing jury-courts It is clear that the Empire was sufficiently established for all men to expect the emperor to be concerned with treason charges, even if the Senate was the forum. Nobody suggests, not even Tacitus, that the quaestio de maiestate might have been appropriate. The state must protect itself, and juries were too remote from power, and perhaps still too open to improper influence. The question of the utility of the jury-courts, and their survival, is relevant here. The quaestiones perpetuae had been approved by Augustus, who had even added the adultery court. Tiberius was careful to maintain Augustus’ policies, so we can assume that they continued as a system in his time, even if the Senate became the normal forum for senators accused of crimes (and, of course, for our sources these are the most interesting trials). While all the maiestas and repetundae trials that we hear of from the start of his reign were held in the Senate, that does not prove the disappearance even of these specific quaestiones; they might have continued for subordinate officers and junior officials, persons too unimportant for the historians. We do explicitly hear of the quaestio de sicariis in AD 54, and of the quaestio de falsis in AD 61.122 Business before them must have remained reasonably brisk under the Julio-Claudians, for Augustus had created a fourth decury for the album and Caligula a fifth; Claudius and Galba chose to lengthen the court year.123 Quintilian, who died in 96, speaks of them as a living institution, and there is other possible evidence for their survival under Domitian.124 Pliny’s evidence on the survival of the quaestiones perpetuae is unfortunately unclear.125 Ambiguity remains in the case where a mother, whose son was dead, was accusing the son’s freedmen, who were joint heirs with her to his estate, of poisoning him and forging his will.126 The alleged murder of her son was sufficient to allow a woman to accuse,127 but poisoning and forgery were quite different charges and could not have been made at the same time under the ordo.128 This may be why she took her case to the emperor, who 122 123

124

125

126 127 128

Seneca, apoc. 14.1; Tac. Ann. 14.41. A decury was a group of those qualified by wealth and rank to sit as jurors, from which the numbers selected for the album in a particular year were drawn. Suet. Aug. 32.3; Claud. 23.1; Cal. 16.2; Galba 14.3. Quint. inst. or. 3.10.1; 11.3.130; Pliny, Ep. 3.9.33: ‘tamquam apud iudicem sub Domitiano Salvi Liberalis accusatoribus adfuisset’ (that [Norbanus] had appeared in court under Domitian among the accusers of Salvius Liberalis). The iudices mentioned in Suet. Dom. 8 were almost certainly not the jurors of the criminal courts, but more likely judges-delegate: ‘nummarios iudices cum suo quemque consilio notavit’ ([the emperor] degraded judges taking bribes together with each’s council of advisers). Pliny, ep. 4.29 could be talking of a civil iudex selectus, but Nepos’ reappearance as praetor in ep. 5.9 does suggest a criminal court, since he is a praetor ‘qui legibus quaerit’, and he is issuing an edict for accusatores and reos. Pliny, Ep. 7.6.8–10. D 48.2.1, Pomponius. As Sherwin-White (1966), 409f, pointed out.

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accepted the accusation, and she obtained Julius Servianus as judge, judgedelegate – impetraverat could mean she had asked for him. Pliny defended the freedmen, and adds: Finem cognitioni quaestio imposuit quae secundum reos dedit. It seems likely that Servianus was deciding whether the alleged offences were so closely linked that they could be heard together; once that was settled, the case may have gone before a quaestio perpetua, which acquitted. Radice translates this as ‘the inquiry was stopped after the court had decided in favour of the defendants’, although her note accepts the two stages. But they could be two stages before the same judge, particularly if the mother asked for him, as a noted figure. Later she went again to the emperor, claiming there was fresh evidence, and Suburanus, Trajan’s first Praetorian Prefect (although he may not have held the office at this time), was ordered to give a rehearing if there was new evidence – which there was not. This argues against the use of a quaestio, since there was no question of an appeal from them, or of setting aside a jury’s verdict; corrupt jurors might be charged, but the verdict stood. It would not be particularly surprising if what happened was that the courts for political crimes disappeared early while those for ordinary offences, such as adultery, forgery and murder, continued for a while. It may be significant that the formula given for an indictment is an accusation of adultery,129 and that so much juristic discussion of adultery is preserved in the Digest. However, Dio’s remark about his finding so many adultery cases awaiting trial when he became consul – his suffect consulship of c. AD 204 – is, if anything, an indication that even that jury-court had fallen into desuetude, for a consul had no role in the operation of the quaestiones perpetuae.130 Even in civil procedure cognitio was replacing the ordo in the course of the second century; the change is likely to have happened faster in criminal matters.131 One possible source of confusion is the changing meaning of the term ‘iudicium publicum’. At some stage it ceased to mean a quaestio perpetua and had come (as in Inst. 4.18) to denote merely a criminal court, or a court hearing a criminal case. Not even Tacitus suggests that the accusations against Piso were unsustainable in the sphere of state action. Even if Piso had been intended to be a check on Germanicus, this would not justify disobedience to a lawful superior – as Tiberius stresses in his plea for Marcus Piso. Suicide was the proper course for a Roman gentleman whom the fates had condemned, and Piso was prepared to go so far as to describe his own actions as pravitas. 129 130 131

D 48.2.3pr, Paul, but Paul also tells us that the ordo had fallen into disuse (D 48.1.8). Dio Cassius 76.16. Garnsey (1967) held the adultery court did survive until the Severans; Brasiello (1962) thought the jury-courts only disappeared under Diocletian. My view is that they went sooner rather than later, and see Robinson (2001) FS Wacke, on the development of civil cognitio.

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There is no hint of a reign of terror in this trial. The accusers have not benefited from the accused, even if they have been rewarded. Intrigues there may well have been among a small social group, but in spite of Tacitus’ nudges and winks, there seems no reason to find any miscarriage of justice, or appearance of it.

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Chapter 4 PLINY AND R E P E T U N D A E TRIALS BEFORE THE SENATE

In this chapter, as in the next two, we are looking not at one but at a (linked) series of trials. Here the trials are all for the same offence and before the same court, but the different cases show different aspects of, and development in, both practice and policy. Tacitus probably thought of himself as above all a writer, who also carried out the normal functions of a senator. Pliny, however, was something close to a ‘professional’ advocate. Further, the Pliny we know from the letters seems a conscientious, truthful man, self-important but hard-working, somewhat vain but not ungenerous, clearly not given to self-analysis. In this chapter we are looking at trials in which our author himself took part, where there is no reason to doubt his account, provided one makes the natural allowance for partiality.1 He was writing for publication, true, but in the interests of literary fame, not with an essentially moral objective; unlike Tacitus, he will not invariably have had a sub-text.

The crime of res repetundae In this period, under the Emperor Trajan (AD 98–117), most of the criminal trials of which we hear were before the Senate on the charge of extortion from the provincials, de pecunia repetunda (or de pecuniis repetundis). Even in this brief period there were developments in criminal procedure. This offence had been the subject of the first quaestio perpetua in the mid-second century BC; the definitive statute governing extortion was the lex Iulia repetundarum, passed by Julius Caesar in 59 BC.2 This, like most such statutes, laid down its own procedure and its own penalty, almost certainly interdiction from fire and water,3 and simple restitution from the estate of the 1 2 3

In the dating of these trials, I follow Sherwin-White (1966). Ep., without further amplification, means a letter of Pliny. It was a substantial piece of legislation; Cicero, ad fam. 8.8.3, refers to the one hundred and first section (caput) of the lex. See Fontenay de Pontette (1954); Robinson (1995b), 81–82. When a citizen went into exile, whether voluntarily or not, he would normally be banned from hearth and home, deprived of his rights as a citizen to property and even to life, outlawed.

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PLINY AND REPETUNDAE TRIALS

convicted man.4 The statute was supplemented under Augustus by the SC Calvisianum, linked with the fifth of the edicts to Cyrene,5 setting up a senatorial commission, but this dealt mainly with the procedure for estimating the damages; it became absorbed into the Senate’s overall jurisdiction. Moreover, the quaestio, the jury-court, seems to have fallen into disuse – at least for senators – by the start of Tiberius’ reign at the latest, and jurisdiction over res repetundae was exercised by the Senate, or occasionally by the emperor. Nevertheless, the terms of the lex Iulia remained the basis of the law throughout the Principate. It covered the making or receiving of any improper exaction from the inhabitants of a province by anyone holding a magistracy or other office in the public service, or any violation of public duty following the acceptance of money;6 the normal element of gain is stressed by the prohibition on usucapion of things acquired contrary to the statute.7 The element of reparation meant that the heirs of an accused remained liable (for a year) for any unjustified enrichment.8 Originally only senators had been liable, but this liability was extended to the entourage (comites) of a governor or other office-holder,9 and then to equestrian office-holders in their own right.10 Under Tiberius, the Senate extended the liability to wives.11 The exaction of monies and other things also came to cover the acceptance of apparently freely offered presents,12 4

On the arguments about the penalty of the lex Iulia, see still Sherwin-White (1949); Henderson (1951); Sherwin-White (1952a); Venturini (1979). 5 FIRA i no. 68, p. 409ff. 6 D 48.11.1pr, Marcian; 48.11.9, Papinian. 7 D 48.11.8, Paul. 8 D 48.11.2, Scaevola; cf. 48.1.6, Marcian, where although the penalty has ceased to be relevant, the judge must deal with pecuniary consequences; 48.2.20, Modestinus. 9 D 48.11.5, Macer; Cicero, Rab.Post. 5.12, of 63 BC, makes clear that equestrians were not then liable. The sons and other close relations of senators were covered, but not equestrian staff until the end of the first century AD. 10 Dio Cassius 61.33.6 refers to an imperial procurator, an equestrian but the man in charge of a province, as possibly liable under Claudius; Tac. Ann. 13.33.1 seems to deal with a quaestor or legate under Nero; D 49.14.46.2, Hermog. dates from the end of the third century. 11 D 1.16.4.2, Ulpian, who ascribes it to AD 20, when it would presumably have been in consequence of Plancina’s conduct (see ch. 3); Tacitus, however, ascribes it to AD 24, after earlier debate in 21 (Ann. 4.20; 3.33–34). 12 The statute excepted presents from very close relatives, second cousins or closer, and wives (D 48.11.1.1, Marcian) – no mention here of the ban on gifts between spouses! But nothing at all, not even the smallest amount, was permissible from others (48.11.7.1, Macer). Presumably Modestinus’ reference (1.18.18) to a plebiscite limiting gifts to the governor to what he could eat or drink within a day or so (rather like President Truman) was a reference to the lex Iulia, but Ulpian, 1.16.6.3, tells us that this was concerned with forage and hospitium, rather than ordinary gifts. Severus and Caracalla allowed moderate presents; by their period many governors were of provincial origin, and there was no ban on officials serving in their province of origin, so there must have been need for some relaxation. In what must be a fairly late development of the law – since the term ‘urban’ is clearly not being restricted to Rome – municipal magistrates were not to receive gifts or favours in any one year worth more than 100 aurei (48.11.6.2, Ven. Sat.).

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taking money for military appointments or other seemingly normal exercises of jurisdiction,13 also engaging in trade, including owning commercial vessels, buying slaves, except as replacements, demanding forage (or allowances in lieu) except when actually on circuit, and other offences of this sort.14 ‘The very length and complexity of the lex Iulia suggest that it dealt fully with innumerable types of illegal enrichment.’15 Julius Caesar had extended the liability so as to overlap with constitutional matters, including treason;16 it already seems to have overlapped with murder in the area of judicial corruption.17 Whether in the statute, or through its extension and interpretation, the abuses of official power included the taking of money to give or withhold a judgment, or taking a bribe to do more or less than one’s duty;18 further, and clearly applicable to private persons, accepting money to give or withhold evidence fell under the statute.19 Where the motive was malice, not gain, there was more likely to be liability under the lex Iulia de vi.20 It seems a convincing explanation that judicial bribery was added to the scope of res repetundae because that quaestio was particularly open to bribery, in view of huge sums that might be involved; this would also explain why corrupt acquittal was covered as well as corrupt condemnation.21 Proper behaviour by provincial governors was a matter of concern to the Roman ruling classes in the Republic. There were various motives: that the overburdened provincials should not be driven to rebellion, that they should not be so overwhelmed by private exactions that their taxes did not benefit the treasury, that Roman senators should maintain a good image. Governors were not expected to be saints, but they should show a decent moderation, and enforce justice; Verres’ behaviour was contrary to the accepted conventions of his class. Various accusations of repetundae were made in the period from 26 BC to the end of Domitian’s reign.22 At some stage in the first century the Senate came to sequestrate the property of somebody convicted of res repetundae so that realistic claims for reparation could be made.23 This 13 14 15 16 17 18 19 20 21 22 23

D 48.11.6.2, Ven. Sat.; 48.11.7pr and 2, Macer. D 1.16.6.3, Ulpian; 18.1.46, Marcian; 49.14.46.2, Hermog.; 50.5.3, Macer; 48.11.8.1, Paul; cf. Cicero II Verr. 1.3.7–9; 4.5.9–10. Brunt (1961), 191. Cicero, Pis. 21.50; 37.90; D 1.16.10.1, Ulpian. Fidiculanius Falcula, a senator, was acquitted in the extortion court of having taken a bribe from Cluentius in the capital trial of Oppianicus (Cicero, Clu. 37.104). Cicero, Pis. 36.87; D 48.11.3, Macer, and 4, Ven. Sat. D 48.11.6pr, Ven.Sat. D 48.6.10pr, Ulpian, although in the third century Macer held that the motive of rage could fall under res repetundae (48.11.7.3). Cloud (1994), 514. Brunt (1961), p. 224ff, lists 34. This was done after the conviction of Baebius Massa in AD 93, under Domitian; Ep. 7.33.4. Pliny’s prosecution of him is also briefly mentioned in Ep. 3.4.4 and 6.29.8.

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meant that injured provincials would seem to have greatly improved their chances of recovering damages. The area ruled by the emperors from Rome was being consolidated, and the emperors viewed offences against the provincials as, at least potentially, offences against their good rule, the discipline of their times. This chapter is restricted to those prosecutions brought under Trajan for which we have the evidence of Pliny’s letters, reporting trials in which he had played a leading part as advocate, whether for prosecution or defence; thus we can see something of the inner workings of these cases. The disappearance of ‘voluntary’ exile One significant difference between the Republic and the Empire was the disappearance of the practice of ‘voluntary’ exile and of interdiction from fire and water. It was replaced by the more formal penalty of deportation, always permanent, with loss of citizenship and civil rights.24 Provincial governors did not have the power to deport.25 A milder form of exile was relegation, with retention of civil rights, even if the sentence was in perpetuity.26 Relegation might be accompanied by a fine or by the confiscation of some or all property;27 provincial governors had the power to relegate as well as fine.28 There was no explicit constitutional measure which brought about a change from voluntary exile to deportation, but in the second century forms of exile were able to be classified.29 It had in the old days been enough that exiles must live outside Rome and Italy,30 but Augustus in AD 12 forbade those interdicted from fire and water to live on the mainland, or on any island within 50 miles of it (with certain exceptions), and imposed various other restrictions on exiles’ way of life, such as not having a familia of more than twenty slaves or freedmen, nor being allowed to possess property worth more than half a million sesterces.31 (This shows very clearly that it was a penalty appropriate for the upper ranks of society.) Tiberius removed the capacity to make a will from those interdicted from fire and water;32 this applied subsequently to deportation but not relegation. Augustus’ severity was clearly modified by some later emperor, for we find in these trials under 24

25 26 27 28 29 30 31 32

D 48.22.2, Marcian, although the deportee might be allowed to take some property (under the ius gentium) with him into exile (48.22.15, Marcian); cf. 48.22.16, Marcian, for a touching case of family loyalty. D 48.22.6pr-1, Ulpian. D 48.22.7.3, Ulpian. D 48.22.4, Marcian; 48.22.7.4, Ulpian; cf. 48.22.1, Pomponius citing Trajan. D 48.22.7.1, Ulpian; cf. ss. 5–16 and 19 on the particularities of relegation. D 48.22.5, Marcian. All Italy south of the Po after the Social War; Caesar extended it to Cisalpine Gaul, all Italy from the Alps southward. Dio Cassius 56.27.2 Dio Cassius 57.22.5; cf. PS 3.4A.9 and 14.

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Trajan relegation being again used merely to exclude the condemned from certain places, and, in the juridical sources, their confinement to a particular province or place.33

The trial of Marius Priscus and his legate The first trial to be considered is that of Marius Priscus, former governor of Africa (a province roughly equivalent to present-day Tunisia and the habitable coastland eastward). He was convicted in January 100, but the first stages were earlier; repetundae trials took time, particularly because of the difficulties of collecting distant evidence.34 On being charged – by only one city, Lepcis, but also by some individual provincials35 – before the consuls with simple extortion, probably towards the end of 98, he pleaded guilty, and applied for a commission under the SC Calvisianum to assess the restitution due. By this time it is clear that the Senate was likely to make a judicial inquiry before appointing the commission, and for this purpose advocates needed to be appointed for the provincials. Tacitus and Pliny, somewhat reluctantly, and only after considerable delays, were assigned by the Senate to act as patroni for the Africans.36 However, the two of them informed the Senate that financial compensation was inadequate for the crimes committed, since Priscus had taken bribes to sentence innocent persons to punishment and even to death.37 To change the grounds of the trial in this way was out of order, strictly speaking, in that a capital charge should have been brought by the victims, or their kin or companions. Further, there has been argument among modern scholars as to whether the charge was under the extortion law, or the lex de sicariis, ne quis iudicio circumveniretur, de vi, or even de maiestate,38 but Pliny himself makes it reasonably clear that it was the Julian law on res repetundae because money had been taken to do the deeds. ‘To show that my accusation was covered by the law dealing with the extortion of money I had to base my argument on the analogy of other laws as well.’39 Catius Fronto, acting for the defence, said that the issue should be limited to compensation – after all, the man had 33 34 35 36 37 38

39

D 48.19.4, Marcian; 48.22.5, Marcian; 48.22.6.8–9, Ulpian. Ep. 2.11, which narrates the case; 6.29.9. Cicero had been allowed 110 days to collect his evidence against Verres (Ps. Asc. p. 125). Ep. 3.9.4. Ep. 10.3A.2. Ep. 2.11.2; cf. Suet. Galba 9.1. Such doings were classed as saevitia, intolerable brutality, too serious to be competent under the Calvisian procedure. Fontenay de Pontette (1954), ch. vii, summarizes views to then; subsequently, Bleicken (1962), 37ff. The case would certainly seem to have fitted within the scope of the lex Iulia de vi publica (D 48.6.7, Ulpian; PS 5.26.1). Ep. 2.19.8; the letter does not explicitly refer to the case against Priscus, but both Sherwin-White (1966) and Radice (1969) hold that it must be that speech which Pliny is proposing to read.

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pleaded guilty to this section of the law. There was vehement discussion, ‘one side arguing that the Senate’s judicial powers were limited by law, the other that they were free and unlimited, and that the defendant should be punished to the full extent of his guilt’.40 It is possible that there had not been a full-scale extortion trial since that of Baebius Massa in 93.41 The Senate was already established as having the power to vary the statutory penalties42 – normally reducing them – but it was still guided by the leges.43 Deviation from the norms of the ordo needed to be argued for.44 Julius Ferox, consul-elect, proposed that the commission should provisionally go ahead, but that those alleged to have given the bribes to procure the conviction of the innocent be summoned as witnesses. The Calvisian procedure was limited to calling ten witnesses already present in Italy, that is, it was intended to comprise the provincial delegation bringing the complaint, but this proposal was for a full inquisitio, gathering all kinds of evidence and able to compel witnesses.45 The two procedures had been designed to be mutually exclusive, but the exercise of cognitio permitted such a compromise. Those alleged to have given bribes were Vitellius Honoratus and Flavius Marcianus, the latter, at least, a decurion of Lepcis, the city bringing the charge,46 and they duly came to Rome.47 Honoratus was charged with having bribed Priscus to exile a Roman eques and to put to death seven of his friends for 300,000 sesterces, and Marcianus with having paid 700,000 for which another eques had been flogged, condemned to the mines, and finally strangled in prison.48 Honoratus died (quite likely by suicide), and so escaped justice. Marcianus appeared before the Senate, but in the absence of Priscus, whose right to be present was in suspense since he had confessed to the lesser form of extortion.49 A senator called Tuccius Cerealis proposed that Priscus should be informed, which must have meant, summoned to attend. It was indeed only natural justice, says Pliny, that a charge made against two persons should be defended by both. However, although based on the same facts, the charges will not have been identical, since the repetundae law properly applied only to those who took money while holding office of some sort, and thus to Priscus, while Marcianus had given, not accepted, money and will therefore have been liable to a charge 40 41 42 43 44 45 46 47 48 49

Ep. 2.11.3–4. Ep. 7.33. Suet. Dom. 8.2 comments on their rarity under Domitian. See Brunt (1961). Tac. Ann. 3.68. E.g. Ep. 4.9.16–17. It was definitely wrong to flout them: 3.9.29–32. Ep. 2.19.8; 3.9.14; 5.20. Cf. 8.14 to Aristo, on a question of procedure in the Senate. Cf. Tac. Ann. 13.43. Ep. 2.11.23. Ep. 2.11.5–8. Ep. 2.11.8. This was normal, but not invariable; see Tac. Ann. 14.18; Ep. 4.9.19. D 48.11.6.1, Ven. Sat., shows infamy as a general penalty. Ep. 2.11.12 shows that he was present at the actual trial.

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either of falsum,50 or of judicial corruption under the murder law, now extended to cover giving, with malicious intent, false evidence leading to a capital condemnation.51 Anyway, the hearing was adjourned until the next meeting of the Senate.52 The emperor, as consul, presided. Pliny spoke nearly five hours, being allowed four water-clocks to add to his original twelve (there were normally four to the hour, but it was possible to regulate them to run slower, which must have been done here). While the governing statute might regulate the times allowed to the advocates for their principal speeches, there was a general rule in criminal trials, going back at least to the lex Pompeia of 55 BC, that the defence had half as long again as the prosecution, normally nine and six hours respectively.53 Pliny was clearly the chief prosecutor; Claudius Marcellinus replied on behalf of Marcianus. After these speeches the case was adjourned. Next day Salvius Liberalis spoke for Priscus; Tacitus then replied for the prosecution, and Fronto finished for the defence, pleading for mercy; these together took up the second day. The hearing of the evidence, given after the main speeches as with the ordo, was accordingly postponed to the third day; such three-day sessions, adds Pliny, were normal in Senate proceedings.54 Cornutus Tertullus, consul-elect, proposed that Priscus be fined the 700,000 he had accepted – Marcianus was fined in that he had no claim to recover what was given turpi causa55 – and that Priscus should be exiled from Rome and Italy, while Marcianus should be exiled from Rome, Italy and Africa. On behalf of the Senate he finished by thanking Pliny and Tacitus for their efforts, a convention we have seen in the SC de Pisone. Senior senators supported him, until another consular proposed56 that Marcianus be banished for five years, which suggests that the earlier proposed sentence was perpetual, or indefinite, and the same fine for Priscus, but no further penalty other than the consequences of conviction under the Calvisian procedure; this more lenient proposal was eventually, however, heavily defeated.57 50

51 52 53

54 55 56 57

As extended by the SCC Messalianum of AD 20 and Geminianum of AD 29: conspiring to ensnare the innocent (D 48.10.1pr, Marcian; 48.10.9.3, Ulpian; 48.10.20, Hermog. PS 5.25.2 and 13). D 48.8.1.1, Marcian; 48.8.3.4, Marcian. Ep. 2.11.9–10. Ep. 4.9.9; Cicero, Flacc. 33.82; 3 and 2 hours in Dio Cassius 40.52.2; see also Cicero, II Verr. 1.25; Tac. Ann. 3.13.1, when the same proportions were observed in the trial of Piso; Tac. Dial. 38.1–2. This allocation only applied to the principal speeches; the production of evidence and the examination and cross-examination of witnesses went on as long as necessary. Ep. 2.11.14–18. D 12.5.3, Paul. There were rules laid down in Augustus’ lex de senatu habendo about the order of making proposals at the more formal stages of the Senate’s procedure; see Talbert (1984), 240–48. Ep. 2.11.19–22.

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That was the end of the principal trial, but Priscus’ legate, Hostilius Firminus, was also implicated. It was proved from Marcianus’ accounts – these were necessarily open to the prosecution’s inspection – as well as from a speech made by Firminus himself before the Lepcis council (which illustrates that there was no problem with hearsay evidence, although it might have less force), that Firminus had aided Priscus in his extortions, and had also bargained with Marcianus for 200,000 for himself – 10,000 of which was paid under the disgraceful entry of ‘cosmetics’ (unguentarii)! But since Firminus, whether from ignorance or guilt, was not present, his case was referred to the next session (a week or so later) of the Senate.58 This too appears to show the Senate taking to itself powers of jurisdiction where no formal accusation had been made. Admittedly his guilt had been proved, but only obiter. Pliny reports that Firminus appeared before the Senate as manifestly guilty, but that there was disagreement between the consuls-elect as to his sentence, one proposing to expel him from the Senate – in effect an exercise of censorial powers rather than a criminal penalty59 – the other to leave him in the Senate but exclude him from the drawing of lots for provinces, meaning all forms of office, not just governorships. The latter prevailed, and Pliny remarked on the apparent leniency and actual severity of losing the privileges (or gains) of senatorial rank but not its duties; nevertheless, he held it wrong for one so censured to remain among those who censured him and to be able to sit in judgment on others accused of offences of which he had himself been found guilty – but then, that was how a majority had voted.60 It could be argued that the Senate had at least taken some steps of its own accord to control the wrongdoing of its members. There is no mention of Priscus’ other two legates, which one would have expected, as three was the normal number for the proconsular provinces of Africa and Asia.61 In a letter following a request for him to give a private recital of what was almost certainly this speech, Pliny explains that he had argued by analogy that crimes under the law on judicial corruption were also covered by the law dealing with the extortion of money. ‘This cannot have any appeal for the ordinary man, but its interest for the professional should be proportionately greater for the lack of it for the layman. It is certainly my intention, if I agree to this reading, to invite all the legal experts.’62 This seems an interesting example, perhaps typical, of senatorial development of the law. 58 59 60 61 62

Ep. 2.11.23–24. Sometimes used by the emperor; Tac. Ann. 2.48.3; 11.25.5–6. Cf. Ann. 3.69.1, for the trial for extortion of Silanus in AD 22. Ep. 2.12.1–5. Sherwin–White (1966), 171; perhaps they were virtuous, perhaps dead. Ep. 2.19.8.

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The trial of Classicus and his companions The next case, not long after, perhaps late in AD 99 or in 100, concerned the complaint of the whole province of Baetica (southern Spain), represented by the concilium provinciae, against Caecilius Classicus.63 Pliny had represented Baetica in 93 against Baebius Massa;64 he seems to have continued to have patronal ties with the Baeticans, and so agreed after some protests to represent them; he also needed imperial leave to be absent from his post as Prefect of the Treasury. He was the more ready to appear for them because Classicus was now dead; Pliny explicitly states that he was much happier about taking the case because of the impossibility of that most painful feature of a criminal trial, the downfall of a senator.65 This also makes clear that the other accused were not senatorial. Pliny felt that his having undertaken three prosecutions, of Baebius Massa, Marius Priscus, and now Classicus, might relieve him from any further duty of prosecution – still a problematic duty.66 Classicus himself could not be prosecuted for extortion, but he had had accomplices in his misdeeds, and they were still alive to answer charges. Classicus had been governor of Baetica in the same year (AD 97–98) as Priscus was governor of Africa; his rapacity was matched only by his brutality. There was a wry Baetican joke: ‘I got as bad as I gave’, since Classicus’ origins were in Africa and Priscus’ in Baetica.67 He seems to have committed suicide to avoid prosecution.68 There never appears to have been any question of using the Calvisian procedure, but his death may have led to a referral back to the provincial council, sometime between September 99 and 100. Despite his death, the Baetici continued their action. The norm was that, while a dead man could not be subjected to a criminal charge – only in cases of treason were criminal charges ever brought against a dead man in the Principate – in the case of repetundae, where the main issue was that of restitution, and a man’s heirs were liable for any unjustified enrichment of his estate, it was good law to allow proof of the crime, although, says Pliny, the practice had lapsed quite a while ago.69 63 64

65 66 67 68 69

Ep. 3.4, and 3.9; 6.29.8. Ep. 7.33.4–8; 6.29.8. Ep. 7.33 tells us that Massa’s property was sequestered after his conviction. When Massa tried to recover it, Senecio, Pliny’s fellow prosecutor, argued the necessity of its custody until the Baetici were satisfied. Massa claimed that Senecio’s prosecution was malicious and threatened an action for calumny, so Pliny said that since he himself was not so threatened, he must be guilty of collusion – neat. Ep. 3.4.7. Ep. 3.4.8. Compare the discussion of prosecution as a duty in ch. 2, and of delators in ch. 3. Ep. 3.9.2–3. Ep. 3.9.5. Ep. 3.9.6; lex Acilia, tab. Bembina, v.29 (FIRA i 7, p. 84); D 48.2.20, Modestinus; cf. 48.11.2, Scaevola.

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The provincials extended their action to bring charges against his comites, and Casta, his wife, as well as Classicus himself. Such liability was no longer exclusively senatorial; equestrian procurators exercising independent command had become liable, just possibly even as early as the time of Tiberius,70 but the prosecution of equestrian cohortes seems new.71 Each charge needed investigation, so a complex and lengthy case ensued. Pliny was chief advocate for the Baeticans, assisted by Lucceius Albinus. Pliny and Albinus feared that ‘the combined influence of the individuals concerned might procure for each the effect of the whole, and, finally, that the influential might make scapegoats of the humble, and so escape at their expense’. Pliny and Albinus therefore arranged that there should be three separate actiones, each occupying a senatorial session, and therefore spread over some four weeks, because of the separation.72 The first essential was to prove Classicus’ guilt, as being necessary for the conviction of accomplices. This was easy as he had left accounts in his own hand, with receipts for business deals and court cases, plus a letter (a file copy presumably) to his mistress in Rome, boasting that he had sold up the Baetici and made 4 million.73 Baebius Probus and Fabius Hispanus, whose names had been coupled with Classicus’ as defenders in the indictment, were more difficult to convict, says Pliny, since they were men of influence, in Rome as well as the province; clearly they were Roman citizens though not senatorial.74 Their defence was superior orders, and Pliny had to prove – successfully in the event – that carrying out wrongful orders was criminal, even by provincials in awe of a governor. This case, he says, set a precedent75 – but is this because the subordinates were equites, not senators, or because this case actually established acting under orders as an insufficient defence? The Senate decreed that all the property which Classicus had owned before his appointment to Baetica was to be set aside, and given to his daughter – there were presumably no other children – while the fruits of his office were – without multiple damages – to be returned to the provincials, even recalling what he had recently paid to his creditors. His creditors must have been seen as beneficiaries of unjustified enrichment, but the process presumably involved in integrum restitutio, so they would be able 70

71 72 73 74 75

Tac. Ann. 4.15 on the conviction in the Senate of a procurator of Asia in AD 24, but he was properly Tiberius’ personal agent and had exceeded his powers; Ann. 13.30 records a prefect of the fleet committing suicide to avoid conviction in 56. Pontius Pilate was sent back to Rome by Vitellius, then governor of Syria, to account to the emperor for his misdeeds, but we do not know if he would have faced formal criminal charges – Josephus AJ 18.88–89. Here; also D 48.11.1pr, Marcian. Ep. 3.9.7–11. Ep. 3.9.13. Four million sesterces was only a tenth of what Verres had extracted from Sicily, but it was still a serious sum. Ep. 3.4.7. They are not otherwise known, except from this case. Ep. 6.29.

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to claim against the estate. Probus and Hispanus were both relegated for five years; this was a fairly serious penalty, particularly as they, and their advocate, had not expected the defence of superior orders to fail.76 Then, a few days later, Claudius Fuscus, Classicus’ son-in-law, and Stilonius Priscus, who had been tribune of a cohort77 under Classicus, were charged; Priscus was relegated from Italy for two years, and Fuscus acquitted.78 There was then an unexpected turn to the proceedings.79 One of the witnesses, presumably from Baetica,80 brought a charge of collusion (praevaricatio) concerning Casta, Classicus’ wife, against Norbanus Licinianus,81 one of the official representatives of Baetica (and clearly someone with influence in Rome) and indeed one of those who had been commissioned to collect evidence.82 While the law laid down that allegations of procedural offences should be heard after the principal crimes had been tried,83 in this case Norbanus’ past history of profitable support for Domitian counted against him; he had been made a commissioner not for his honesty but for his animus against Classicus, by whom indeed he had been relegated after Domitian’s death.84 Perhaps too, the suspicion of collusion had already arisen out of the trial of Classicus’ misdoings, although it was then specifically alleged of Casta’s trial. Norbanus, reasonably, asked for a day to be appointed for his trial, and for specification of the charges, but these were refused him – a serious example of injustice on merely political grounds.85 He was obliged to defend himself on the spot, and against other charges as well as collusion. This put Pliny and Albinus into an awkward position. It was from Norbanus that they, as advocates and patroni, had received their 76 77

78 79 80

81

82

83 84

85

Ep. 3.9.12–17. Which sort of cohort is not specified. Sherwin-White (1966), 234, thinks it refers to another urban cohort, such as those sometimes stationed at Lyons or Carthage (and there were others, judging from their numbering), but the tribunes of these were usually promoted centurions, not likely comites. Ep. 3.9.18. Ep. 3.9.29–32. A hostile witness, says Pliny, hostile whether because annoyed at being compelled to appear (which would imply a prosecution witness), or perhaps because he had been suborned by another defendant to muddy the waters. Technically, as Sherwin-White (1966), 236, pointed out, such a charge only lay against the formal accusers, Pliny and Albinus (SC Calvisianum 98–103). However, the provincials were clearly moving nearer to being able to bring their own prosecutions for themselves, and this could have been a deliberate extension of liability. This had formerly been the duty of the leading prosecutor, but Tac. Ann. 13.43 suggests that it had come to be viewed as a nuisance; its transfer to the provincial delegation may have been unauthorised but seen as acceptable. Lex Acilia v.75 (FIRA i 7, p. 84); D 48.16.1.3 and 6, Marcian. This surely might have made him liable to an accusation of calumny, for bringing a malicious prosecution, but as with iniuria, truth might have been an adequate defence in the circumstances. See Paul, fr.inst. 2 (FIRA ii p. 421); cf. Tac. Hist. 2.10.

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instructions on behalf of the province; if he was guilty of collusion, they needed fresh instructions, so they remained seated throughout his trial.86 Surprise witnesses against him emerged from the Senate, when two consulars brought evidence of his calumniously joining (as subscriptor presumably) in the prosecution of Salvius Liberalis under Domitian. A charge of calumny could be heard together with one of collusion since they both fell under the same senatusconsult, the SC Turpillianum. He was found guilty, and relegated to an island, but was able to attend the remainder of the trial.87 Calumny and other procedural crimes There were risks inevitably inherent in a system of popular accusation, accusation by any adult male citizen, with no requirement that he should have an interest (other than in the reward for a successful prosecution). To counter or mitigate these risks the Romans developed a group of procedural offences: calumny, collusion, and the desertion of an accusation formally laid. They were not free-standing crimes, but abuses of procedure before the ordinary criminal courts; originally they only applied to accusations before the quaestiones perpetuae. Calumny (calumnia) was the bringing of false charges, from malice, or frivolity, or at least with reckless disregard for the truth. Collusion (praevaricatio) was the concealment of genuine charges, in particular by the bringing of false evidence which could readily be disproved. The abandonment of an accusation (tergiversatio) perhaps seems oddly treated as criminal, but – in the absence of a state prosecution service – it might well occur because the accuser had been bribed to drop the case, or intimidated; and then, as now, the court’s time would have been wasted. There was therefore a mechanism, known as abolitio, by which a prosecutor could apply to the court before which he had brought his accusation to have it annulled; if he did not do this he might be presumed guilty of tergiversatio or calumny.88 Calumny had originally been governed by the lex Remnia, perhaps of 91 BC, certainly before 80 BC (since Cicero referred to it in pro Roscio Amerino); its penalty had presumably been infamy, depriving the guilty man of the right to accuse or to act for others, or to become a decurion.89 The branding 86 87

88 89

Ep. 3.9.35. Ep. 3.9.33–35: ‘apud iudicem sub Domitiano Salvi Liberalis accusatoribus adfuisset’: the phrase makes it sound as though the accusation was before one of the quaestiones perpetuae. Senators seem normally to have been tried by their peers, in the Senate, by the middle of the first century, but perhaps a non-political charge, such as adultery with a woman of no importance, would have been competent in the ordinary courts. The appointment of a special judge by the emperor remains a possibility; cf. Ep. 7.6.8 and 10. Robinson (1999) and (2006). Caminãs (1984a).

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or tattooing of the culprit with a K, threatened by Cicero,90 is not physically evidenced at that period, so one must assume it was metaphorical, entering a K beside the name on the praetor’s album. (Actual branding or tattooing was a penalty at this stage only imposed upon fugitive slaves.91) Claudius, in a speech to the Senate between 42 and 51, tried more generally to regulate accusations,92 but in the event the SC Turpillianum of AD 61 absorbed the statute, and it became the basic source dealing with all three procedural offences: calumny, collusion, tergiversation, and also perjury.93 It did not deal with the question of advocates’ fees. It covered not only the accuser himself, but also one who employed a man of straw to make the accusation;94 certain persons, on the other hand, could make an accusation without fear of calumny, such as a parent pursuing the death of a child,95 or a man making an accusation of adultery by right of being the husband.96 Suitable penalties under the SC Turpillianum might be a fine of 5 pounds of gold,97 a ban on bringing any prosecution (except one where his own interests had been harmed),98 a ban on acting as an advocate for a number of years,99 degradation, i.e. removal from the Senate or the local council,100 or even relegation.101 As we shall see, the concept of calumny changed somewhat in the Later Empire; the courts were much more likely to see any failed accusation as calumnious, and the penalty was often that which would have been imposed on the accused if convicted.102 Further subsidiary trials Thereafter, at the planned third session, several persons – mostly of lesser importance – were charged, including Classicus’ wife, Casta, who was under strong suspicion; however, Pliny had been doubtful if there was enough evidence to convict. Senatorial wives had been liable to charges under the 90

Cic. Rosc. Am., 19.55; 20.57; tab. Hera. v.120 (FIRA i, p. 149); cf. D 22.5.13, Papinian. Jones (1987). 92 FIRA i 44, p. 285. 93 See Robinson (1995), 99–103; Caminãs (1984a), 113–22; Centola (1999); Puliatti (2002); cf. Robinson (1999). 94 D 48.16.1.13, Marcian; cf. 48.16.15pr, Macer. 95 D 48.1.14, Papinian. 96 D 4.4.37.1, Tryph. 97 D 47.15.3.3, Macer, who says this penalty was laid down in the SC; this fine will have been translated by the compilers into the currency of the Later Empire. In civil procedure the counter-action claiming calumny made the wrongful pursuer liable to the defender for one tenth of the sum at issue (G 4.174–75). 98 D 47.15.5, Ven. Sat.; 48.2.4, Ulpian. 99 Ep. 5.13.5. 100 D 50.2.6.3, Papinian; PS 5.4.11. 101 Tac. Ann. 14.41; PS 5.4.11. 102 D 47.15.6, Paul, citing a rescript of Severus and Caracalla; CJ 9.2.17pr, Honorius and Theodosius. 91

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repetundae law since Tiberius’ reign, as we have seen. Pliny must have felt more hopeful after the conviction of Norbanus for collusion, and in his speech he laid particular emphasis on this damning fact. To his surprise, she was acquitted, even though her accuser had been convicted of collusion with her – a result without precedent.103 Classicus’ daughter, Classica, was also among those charged, but her complete innocence emerged; this seems the only such reference to a daughter being caught up in her father’s crimes, although it was common enough to charge sons. (The Senate had already granted her the property owned by Classicus before his appointment to govern Baetica.) Pliny therefore refrained from pressing the accusation against her, after having checked that the provincials had no substantial case; he consulted the Senate on its views, and thus ran no risk of himself being held liable for tergiversatio. He was confident that her acquittal at the end of the proceedings would not weaken his overall case.104 Of the others, some were acquitted, but the majority were convicted and relegated, either for a fixed term or for life. The Senate again gave hearty thanks to Pliny and Albinus. ‘You can imagine how tired we were after so much continuous speaking, debating, and cross-examining of all the witnesses, and supporting or refuting their replies’, and also evading their friends’ confidential enquiries and open attacks.105 The final chapter in the story was the personal appearance of Salvius Liberalis. He was presumably present simply as a member of the Senate but, spurred on by his grievance against Norbanus, he fiercely attacked the remaining Baetican delegates for not having brought to trial all the persons about whom their province had given them instructions; this will have included Classica. It is not clear whether or not this was a formal accusation – which illustrates the sometimes excessive element of discretion in trials before the Senate. Pliny defended the Baeticans successfully, presumably against a charge of tergiversatio.106

The trial of Julius Bassus The third major trial is that of Julius Bassus, early in AD 103; this time Pliny was for the defence.107 It is not clear for what offence Bassus had been 103

104 105 106 107

Ep. 3.9.34. We know, however, that in adultery cases, it was possible for the accused paramour to be convicted and the woman to be acquitted – D 48.5.18(17).6, Ulpian: ‘therefore the woman will await the passing of sentence on the paramour; if he is acquitted, the woman will win her case through him; if he is condemned, the woman is not thereby condemned, but may defend herself so that she may perhaps be successful, whether by favour or by justice or by the terms of the statute.’ Ep. 3.9.19–21. Ep. 3.9.22–25. Ep. 3.9.36. Ep. 4.9; cf. 6.29.

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tried, and acquitted, in Vespasian’s day, but the fact that he was charged by privati and the case referred to the Senate suggests another charge of extortion. Friendly with, but banished by, Domitian, he was recalled by Nerva – which makes it fairly certain that it was for a political not a vulgarly criminal matter. He became governor of Bithynia (in north-western Asia Minor), perhaps in 100, and was now accused of extortion.108 There is no reference to an inquisitio, or to the presence of witnesses, so presumably any charges of saevitia had been dropped, which would of course be with the permission of the court (or more specifically of the consuls as presidents). The procedure therefore is close to that laid down in the SC Calvisianum. Pliny for the defence had been instructed by his client to say, first, what a distinguished man he, Bassus, was, then to deal with the informers who were plotting to profit (praemia delatorum) in the Bithynian courts, and finally to speak of the reasons for Bassus’ unpopularity with the bad types, the ones stirring up riots.109 But the nub of the accusation, since the charges that sounded more serious had been dropped, was that he had accepted certain gifts from the provincials, thoughtlessly, as their friend, for he had been quaestor there earlier – it depended on your perspective whether this should be described as thieving and plundering, or accepting tokens of friendship.110 But even presents from friends were forbidden by the statute.111 Pliny’s task of defence was tricky. It was impossible to deny a palpable fact, for Bassus had told many people, including the emperor, that he had accepted gifts, but only small ones, and on occasions such as his birthday and during Saturnalia, and that he had usually given something in return. The law was strict, but many senators now had a provincial background, and yet were not forbidden to serve in their home province; this must have made an increasing absurdity of the literal interpretation. Ulpian quoted Severus and Caracalla as having laid down that officials should not be so unmannerly as to refuse all presents, but should be careful to avoid appearing greedy;112 that, however, was nearly a century in the future. For Pliny, to plead for mercy would be to blacken his client by admitting guilt; to attempt to justify his conduct would not help him in the face of the statute, and would expose Pliny to a charge of disrespect for the law. What was Pliny to do? To take a middle course, but how? In the event he seems simply to have made a plea in mitigation. Pomponius Rufus, as senatorial patron, opened for the prosecution, and was followed by Theophanes, representative of the province and indeed the instigator of the prosecution; this seemingly is the first appearance of a 108 109 110 111 112

Ep. 4.9.1–2. Cf. Dio Chrys. or. 43.6–7. Ep. 4.9.4–6. Lex Acilia v.2 (FIRA i 7, p. 84); D 48.11.7.1, Macer, and 48.11.1.1, Marcian. D 1.16.6.3, Ulpian.

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provincial with right of audience before the Senate.113 As with the defence, two speakers were sharing the time allotted for the opening speeches. On the first day Pliny spoke for three and a half hours (for the prosecution was allowed six hours, and the defence nine114) with one and a half to come on the following day, when his fellow advocate would have four hours. Pliny wondered whether to rest his case that evening, but Bassus pleaded with him to finish his speech. Lucceius Albinus then followed, also for the defence.115 Herennius Pollio, apparently the Baeticans’ other patronus, made a forceful and well-reasoned reply – against Bassus – and then Theophanes spoke again, and went on until after dark, when lamps were brought in. On the third day Homullus and Fronto spoke in defence of Bassus; since the principal statement of the defence case had already been made by Pliny and Albinus, what these dealt with is obscure. Perhaps they were commendations of his character. The fourth day was spent on the examination of the probationes – documents and witnesses.116 The defence was clearly unsuccessful in the face of the evidence and Bassus’ own admissions, for Pliny next tells us that Baebius Macer, consulelect, proposed that Bassus was guilty under the lex repetundarum, and should be subject to the penalty of the statute, while Caepio Hispo proposed that he should make reparation as laid down by a commission, but suffer no loss of status. Both proposals were good in law, even though they differed. Macer held to the letter of the law, albeit the Senate not the quaestio was hearing the case, but Caepio took the view that the Senate, when exercising cognitio, had the power (as indeed it has, Pliny adds) to reduce, or increase, the penalty laid down by law; thus mercy could be shown for an act prohibited indeed but not unprecedented.117 This would seem to undo the whole force of the extortion law! Caepio’s proposal was carried comfortably, but Pliny remarks, as he had in the case of Priscus, that some held it wrong for a man who had a penalty assessed against him to retain his seat in the Senate.118 In fact, despite the lack of formal infamy, all Bassus’ acts in Bithynia were rescinded, as we learn from Pliny when he was governor of that province, and anyone affected by any judgment of Bassus was given two years to appeal.119 But Pliny must have decided to avoid mentioning this resolution of the Senate as insufficiently flattering to his powers of advocacy, and not fitting well with the welcome given Bassus by 113 114 115 116 117 118 119

Ep. 4.9.3. Senate procedure was developing all the time. As in Priscus’ trial, supra. Ep. 4.9. 9–13. Ep. 4.9.14–15. Ep. 4.9.16–17. Cf. Ep. 2.11.4; see also Robinson (1996); Bleicken (1962), 37ff. The Senate’s exercise of cognitio remained in touch with the framework of the ordo. Ep. 4.9.18–19. Pliny had been much more forceful on this issue in Priscus’ case (2.12.4), but then he had been prosecuting. Ep. 10.56.4.

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so many after the hearing.120 Elsewhere he says that he defended Bassus as having acted much too imprudently and foolishly but without any criminal intent, and thus Bassus retained his place in the Senate.121 A senator named Valerius Paulinus had agreed with Caepio, but he also proposed that Theophanes should be investigated by the Senate, after he had given an account of the investigative commission’s work, on the grounds that in the course of his accusation he had committed various offences which also fell under res repetundae. This was probably taking money from other Bithynians to accuse;122 it may well also be a reference back to the Bithynian delators who were conspiring for rewards. The consuls, however, despite the general feeling of the Senate, rejected what was in effect an application to prosecute, but Pliny thought it reflected credit on Paulinus.123

The trial of Varenus Rufus The fourth extortion trial in which Pliny took part was that of Varenus Rufus, in AD 106 or 107.124 The Bithynians were here accusing the same man who had been set to prosecute Bassus on their behalf; he had withdrawn from the case, for reasons unstated, which is why Pliny did not mention him in his account of that trial. The provincials were summoned before the Senate, presumably for formal nominis delatio, and to receive senatorial advocates to put forward their charges; they applied for time to collect evidence, thus making it clear that they accused Varenus of saevitia.125 Then Varenus requested that he too should have the right to call witnesses from the province. This action by the accused was without precedent, and the Bithynians objected; the preliminary stages of the case, concerning the inquisitio, were heard at once. Pliny appeared for Varenus126 as he had for Bassus, but says nothing of his own speech. The leading Bithynian prosecutor was the voluble Fonteius Magnus;127 it is noteworthy that the precedent set by Theophanes, of a provincial commissioner having rights of audience before the Senate, seems to have become accepted, just as the provincials’ power to organize the inquisitio had been accepted earlier. Homullus, the other advocate for the defence, replied on behalf of Varenus on the following day; Pliny’s lack of remark on this proves that continuation 120 121 122 123 124 125 126 127

Ep. 4.9.22. Ep. 6.29.10. D 48.11.6.2, Ven. Sat. Ep. 4.9.20–22. Ep. 5.20 describes the preliminary stages, while 6.5, 6.13, 7.6, and 7.10 deal with further procedural manoeuvrings. We never hear of an actual trial. Ep. 5.20.1. Ep. 5.20.2. Ep. 5.20.4–5.

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was commoner than in AD 100. Then Nigrinus, as patron of the Bithynians, made an effective speech for the prosecution in reply. This was a preliminary action, not the trial proper, so the normal time ratio and the order of the speeches could be varied without comment. The consul-elect, Acilius Rufus, proposed that the Bithynians should be allowed to collect their evidence, that is, he allowed the graver form of trial for extortion, but passed over Varenus’ similar plea. The consular Cornelius Priscus proposed that both parties should be granted their requests, and this was carried. ‘So we won our point, not one mentioned in the law or covered by precedent, but none the less equitable.’128 However, a couple of weeks later, at the next meeting of the Senate, Licinius Nepos129 held that the innovation was unjustified; he proposed that the consuls should be asked to consider the law on extortion in the light of that on electoral corruption, and settle whether in future the same powers should be given to the defence as the prosecution in preparing their case. There followed an altercation between him and the jurist Celsus, probably the younger of that name.130 If this right had indeed already been granted in cases of electoral corruption, it would not have been such a novelty, and it is not particularly surprising that the Senate should have accepted it in Varenus’ case. Perhaps as a result of that debate, Pliny next tells us that the Bithynians had dared to approach the consuls to try to have the Senate’s grant of permission to Varenus overturned; they had even petitioned the emperor, who was not in Rome, but he referred them back to the Senate. The Senate, apart from Acilius Rufus and seven others, held that a majority decision had been passed and was binding.131 The next that we hear is the extraordinary fact that the Bithynians were reported to have dropped their case against Varenus.132 Pliny is slightly cautious about this, but an emissary of the province had brought the provincial council’s decree to the emperor, to various leading figures, and to Varenus’ advocates, Pliny and Homullus.133 The council may have been able to reverse its decision because of the absence in Rome of Varenus’ chief enemies. Nevertheless, a certain Magnus, from the first embassy, was harassing Nigrinus, the advocate appointed by the Senate for the Bithynians, to 128

129 130 131 132 133

Ep. 5.20.6–7; see also 6.29.11. Sherwin-White (1966) points out, p. 354, that Quintilian, inst. or. 5.7.9, states explicitly that while both sides could call witnesses, only the prosecution had the power to compel their appearance. He may well, however, have been describing the ordinary procedure before the quaestiones perpetuae; also he was writing ten years or more earlier. Senatorial procedure was changing. He is the man who is possibly to be identified as praetor of a quaestio perpetua in Ep. 4.29 and 5.9.3–5. Ep. 6.5; on the identity of Celsus, Sherwin-White (1966), 360–61. Ep. 6.13; cf. 2.12.5. Ep. 7.6. Ep. 7.6.1.

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get Varenus forced to produce his accounts.134 Nigrinus made the request to the consuls, who asked Pliny what he had to say; he simply suggested that the true representatives of the province be heard. Then Polyaenus, the Bithynian emissary, explained to the Senate their reasons for dropping the prosecution, and asked that no sort of decision be taken before the emperor had held an inquiry into possible tergiversatio. Pliny largely refrained from speaking, and certainly from making any form of speech, since it was important to stress that Varenus was not on trial.135 The consuls granted Polyaenus’ request.136 The emperor, having heard the opposing arguments of Fonteius Magnus and Polyaenus, declared that he would undertake to discover the true wishes of the province.137 The silence of Pliny, or indeed any other source, strongly suggests that the Bithynians were allowed to withdraw their accusations. It is likely that the Bithynians were trying to fight their own internal battles before the Roman Senate, using the repetundae laws as a pretext. The episode suggests that the Senate as a court normally acted autonomously, without imperial intervention, although the emperor was available for breaking an impasse. A trial before the emperor We do hear from Pliny of one other case of misbehaviour in the provinces, in 106 or 107, but this was not a trial before the Senate but before the emperor. Lustricius Bruttianus, a proconsul (but we do not know his province), had detected his comes, Montanius Atticinus, in a number of criminal acts (in multis flagitiis), and had reported these to the emperor; Atticinus then added to his offences by raising a counter-action – seemingly some form of extortion charge, since it reflected on Bruttianus’ integrity – against Bruttianus. Pliny was on the imperial consilium, acting as judicial assessor.138 The procedure was summary – carptim; each party acted for himself,139 dealing with the main items one by one.140 Bruttianus produced his will, written in Atticinus’ hand,141 as proof of his former trust and of the necessity of his present accusations, all clearly proven. The force of Atticinus’ 134 135 136 137 138 139 140 141

Ep. 7.6.2. This had long been normal in such prosecutions: II Verr. 1.36 shows Cicero’s access to Verres’ accounts, and see Ep. 2.11.23 in relation to Priscus’ case. Ep. 7.6.3–7 Ep. 7.6.14. Ep. 7.10. Ep. 6.22; cf. 6.31.1–12. Pliny also sat as assessor for the Prefect of the City (Ep. 6.11.1). Although on another occasion we are told that advocates could and did appear before the emperor (Ep. 6.31.11). Ep. 6.22.1–2. Nero had tried to speed up the administration of justice by replacing continuous pleadings with each party in turn presenting single points (Suet. Nero 15.1). On the curious Roman habit of getting other people, friends or family, to write out one’s will, see Robinson (1992a).

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counter-charges was destroyed when it was revealed that he had bribed a slave belonging to Bruttianus’ scriba, intercepted certain papers and falsified some of them,142 and, worst of all, had diverted against Bruttianus a criminal charge laid against himself.143 Somewhat oddly, it is possible that altering official documents did not fall under the basic law on forgery, the lex Cornelia de falsis, until Severus,144 but it was also classified as treason in chapter 1 of the lex Iulia maiestatis.145 The emperor asked his consilium for a verdict on Atticinus, who was found guilty and relegated to an island.146 The charge against Bruttianus may be presumed dismissed. This case differed from the other extortion trials, because it was between two Romans, perhaps both senators, and not at the instance of a province. This is probably why it was heard before the emperor rather than the Senate, which had normally inherited the jurisdiction of the quaestio perpetua de rebus repetundis.147 This series of trials, described straightforwardly by Pliny, is less informative than one might have hoped on Roman attitudes. For one thing, the only attitudes we really learn of are those of Pliny’s fellow-senators. It does seem that overall the Senate was concerned with the good name of Roman government, and that, whether for moral or political reasons, there was no automatic attempt to cover up alleged abuses of Roman power in the provinces. On the other hand, it is highly unlikely that Pliny’s sentiment of distress at the downfall of a senator was not widely shared. Lesser charges were perhaps more likely to gain a hearing than serious ones, as a general rule. But Pliny and Tacitus had insisted that Priscus’ conduct had been beyond what could be met with mere restitution, that punishment was due. It seems that rough – by which I mean approximate – justice was probably achieved, even against some of the most powerful men in the Empire. But it was also a time when the power and influence of provincial families was growing; Italian families, let alone truly Roman ones, were steadily dwindling in the Senate. It was not merely the governors Bassus and Classicus who came from the provinces; so did the Emperor Trajan. The odds for the injured provincials must have been much more favourable than in the Late Republic.

142 143 144 145 146 147

interciderat (cf. D 11.3.1.5, Ulpian; 48.10.9.3, Ulpian). Ep. 6.22.3–4; it is likely that this charge was of extortion. D 48.10.1.4, Marcian; cf. 48.10.16pr and 2, Paul. D 48.4.2, Ulpian. Ep. 6.22.5. Cf. Ep. 7.6.8–10, dealt with in the section on the decline of the quaestiones perpetuae in ch. 3. In the case referred to there, the later development, with the woman claiming fresh evidence, was before Suburanus, who became Trajan’s first Praetorian Prefect. If it in fact occurred while he held that office, it is the second evidence – after Seneca’s reference to Burrus (clem. 2.1.2) – for the Praetorian Prefect exercising jurisdiction.

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The Senate and the ordo The other aspect which is striking is the usual desire of the Senate to conform to the spirit of the law, the statute, even when not bound by the letter of it. Correct procedure, largely drawn from the ordo iudiciorum of the standing jury-courts, was important, although the Senate was clearly developing its own particular rules. Probably the power to vary the penalty was the most significant of these. At the trial in AD 22 of Gaius Junius Silanus for extortion with brutality when proconsul of Asia (the province of proconsular Asia comprised the greater part of western Asia Minor), it was the presence of Tiberius which most affected the sentence.148 In Trajan’s time, however, the Senate was able to debate freely its own powers to pass sentence; we have seen this in the trials of both Classicus and Bassus.149 Other changes we have noted were the acceptance of provincials as having right of audience, and the right of the defence to compel witnesses.150 In the interests of good government and of the orderly development of the law, justice was imperative, and this included the rules of natural justice. All the members of the Senate will have had some schooling in philosophy, and among the senators were the major jurists. I do not wish to go so far as seeing a golden age here, but this period was probably the nearest approximation to it – as long as one remembers the unfortunate eques who was flogged, condemned to the mines, and then strangled in prison.

148 149 150

Tac. Ann. 3.68. Pliny, Ep. 3.9.29–32; 4.9.16–17. Ep. 4.9.3, on Theophanes, in the trial of Bassus; 5.20, in the trial of Varenus.

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Chapter 5 ACTA MARTYRUM CHRISTIANORUM: T H E E X T E N S I O N O F T O RT U R E

This chapter does not look at persecution as a topic, although it explains the legal grounds for persecution, but at the legal practice in the various trials (and related happenings) of those punished for Christianity. The first such trials were in the second century, when Christianity was not a ‘crime’ but conduct on occasion deserving repression. In the mid-third century, under Decius, Christianity was still not of itself a crime, but Christians were bound to be seen as criminals because it was ordered that everyone must worship the gods of Rome; Christians were not specified, but it was well known that they would refuse. Then, a few years later under Valerian, and again in the early fourth century, Christianity was criminalized. This chapter, like the first, deals as much with political as juridical issues1 since, for various reasons, the Roman government decided to prosecute Christians for their beliefs, rather than their actions.2 The other trials described in this book concern sedition, murder, treason, extortion from provincials, magic practices, things that have generally been reckoned assaults on society, although the control of worship was also an important issue in the case of the Bacchanalians. I think one can take it that no Christian was convicted of cannibalism3 or incest or other flagitia, and these charges do not actually occur in the records of the persecutions. So Christianity was in one sense a non-offence, as Tertullian said,4 although there are some links with astrology and magic. Yet for long it was an offence in the eyes of the people at large; educated people like Tacitus and Suetonius saw Christians as enemies of the human race.5 1

2 3

4 5

Fogliani (1928), 66. Edward Gibbon’s survey, The Decline and Fall of the Roman Empire, (1776, repr.) vol. I, ch. xvi, ‘The conduct of the Roman government towards the Christians, from the reign of Nero to that of Constantine’, still has much to commend it. Despite D 48.19.18, Ulpian: ‘No one is punished for thinking’. Not seemingly an offence in Roman law, where one hears nothing of it, very unlike the Bible. It was misunderstanding of the eucharist that led to this charge, just as accusations of incest were a misunderstanding of the Christian call to brotherly love. Tert. apol. 2.10: ‘Others you torture to make them confess, us to make us deny’. Tac. Ann. 15.44; Suet. Nero 16.2.

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A C TA M A R T Y R U M C H R I S T I A N O R U M

The sources For the first, and only, time we shall be looking at the administration of justice from a point of view other than that of the governing classes, which is one reason why we must not think of these accounts in the Acta Martyrum Christianorum as law reports (even if one could perhaps call them case-studies). ‘These Acts are not, though they may seem to be, authentic verbal records of the trials of martyrs. But they are ancient literary evocations of those trials.’6 A second reason for caution is that these stories of Christian martyrs were preserved to honour their memories; they are gesta, not court acta, and their purpose was hagiographic, not legal. There were hundreds of Acta Martyrum composed in the fourth and fifth centuries, once Christianity had become first tolerated and then the official religion of the Roman state, in honour of those whose anniversaries were celebrated; almost every see had its own martyrology. Death, in imitation of Christ, was the supreme sign of Christian faith.7 These late Acta, whatever the date of the martyrdom they recount, are of no value at all for weighing the criminal law of the pagan Empire. However, there are some early ones which seem contemporary with the events they describe, even if they may have been embellished later, perhaps with the addition of dreams or visions. But they too were written to exalt those who suffered death for their faith, and that faith itself; this is frequently highlighted by language stressing the cruelty of the mob and of the authorities. The details that are of interest to us in discerning the criminal procedure of the period and the attitudes of the government are incidental to their purpose. There are several modern collections of those Acta which can be reckoned as contemporary, or nearly so, with the events they describe, among which I have followed Musurillo, and also Lanata, and Bastiaensen.8 The problem is that there are few external checks, and no pagan versions of these trials;9 internal consistency and external plausibility do not prove them accurate, even if we must rely on them. Arrest and execution, and perhaps the giving of sentence, would be things witnessed by the martyrs’ companions, but the interrogations are often described as being behind closed doors, in a secretarium. 6

7

8

9

Millar (1993b), 35. Cf. Bisbee (1988), who holds in his Introduction that useful distinctions can be drawn between ‘acta’ based on court records and ‘passiones’ based upon witnesses to the deaths of the martyrs. Confessors, technically, are Christians who bear witness publicly to their faith in circumstances of difficulty and danger, but who do not suffer death for this witness; they were much less important in the fourth-century Christian view. Musurillo (1972); Lanata (1973); Bastiaensen (1987). On problems of authenticity, see Barnes (1968b); Bastiaensen, xxviii–xxx; Musurillo, Introduction; also Bisbee (1988), 81– 87. Apart, in a sense, from Pliny’s correspondence with Trajan on the treatment of Christians in his province of Bithynia, around AD 110 (Ep. 10.96–97).

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A useful source, apart from the Acta, is the collection of letters from, and to, St Cyprian, bishop of Carthage from at least 249 until his death in 258; the authenticity of almost all of these is unchallenged. Cyprian was an eyewitness, and then a victim, of the persecutions of the mid-third century. His letters are largely official episcopal letters, directed to those within the Church, to his clergy, and to the clergy of other sees, particularly Rome; they were not designed for publication as a collection, but to answer the needs of the moment. They speak warmly of both confessors and martyrs, but are more concerned with the treatment of the lapsed, those whose courage had failed them. Another source, the historian Eusebius, bishop of Caesarea, was an eye-witness to the ‘great’ persecution of Diocletian and Galerius in the Eastern Empire in the early fourth century, but his knowledge of events in the West was not good.10 His Ecclesiastical History has a general purpose different from that of the Acta, the justification of the Christian faith from its beginnings until his own time. It was written by someone familiar with the standards expected (in his day) of a historian; where there is an overlapping account, confirmation from this source gives added weight, even if not certainty. Yet another source, Lactantius, a Christian and author of a work de mortibus persecutorum,11 held the post of professor of (Latin) rhetoric at Nicomedia, Diocletian’s eastern capital, until presumably dismissed under Diocletian’s first edict against Christians; he survived the persecution and died around 320. He was closely involved with court circles. All in all, the sources for this chapter probably have no more bias than does Cicero; in other words, they give much useful information but are not to be swallowed uncritically.

The background: astrologers and philosophers Let us move from our sources to the background. Until the middle of the third century, while the Christians saw Roman authority as hostile, as focused on suppressing them, this was their perception rather than reality.12 From the Roman point of view there were merely times when awkward people, such as astrologers, Jews or Christians, needed to be temporarily

10

11 12

Eusebius (c. AD 260–339) was imprisoned briefly in 309 during the Diocletianic persecution; he became bishop of Caesarea around 313; he attended – perhaps as theological adviser to Constantine – the Council of Nicaea in 325. He made a collection of the lives of the early martyrs, which has not survived, as well as writing a book on the Martyrs of Palestine; his Ecclesiastical History was probably begun – it was subject to various revisions – during or even before the Great Persecution, but it dealt with the big picture, not just persecution. The Deaths of the Persecutors, here abbreviated MP. As I have argued elsewhere: Robinson (1990–92); Robinson (1995) is only a slightly different version.

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repressed. For example, rhetoricians, philosophers and astrologers formed a loosely linked group: rhetoricians were originally Greek, as were philosophers; Stoic philosophers saw their fate not in themselves but in their stars. As early as 161 BC, rhetoricians and philosophers were banned from Rome by a senatusconsultum, proposed and enforced by the Praetor.13 In 139 BC the peregrine praetor banished astrologers from the City for exciting shallow minds for their own profit.14 In 92 BC the censors passed an edict against rhetoricians since their teachings were contrary to Roman ancestral custom.15 Under Tiberius, around AD 17, a senatusconsultum was passed expelling astrologers from Italy, and some were executed.16 Philosophers were in trouble under Nero,17 and banished again from Rome and Italy by senatusconsult under Domitian.18 Serious penalties were thus imposed, and yet astrologers and rhetoricians had a significant place in the intellectual life of Rome; the aim was to cut them down to size, not to abolish them. We have seen the same approach to foreign cults. Interestingly, our one legal source, specifically dealing with Tiberius’ action, shows that there could be argument as to whether it was the skills of such men or only their public exercise which were to be punished; at the time, the jurists had held that it was only the exercise which was punishable, although this was different by the time the Collatio was compiled, and perhaps already in Ulpian’s time. Knowledge sometimes merged into practice; this was the result of such men’s obstinacy and rashness – per contumaciam et temeritatem.19 A literary source confirms a clear parallel with Christians: those astrologers who recanted, who asked pardon and undertook to make no further predictions, were not punished.20

The different stages of the criminal law concerning Christianity Christians fell into this category of potential subversives, but for a couple of centuries Christianity was not a specific crime. In the pre-Decian period

13 14 15 16 17

18 19 20

Suet. de rhet. i; Gellius NA 15.11.1. Val. Max. 1.3.3. ‘praeter consuetudinem ac morem maiorum fiunt’; Suet. de rhet. i; Gellius NA 15.11.2. Tac. Ann. 2.32; Suet. Tib. 36 and 63; Gellius NA 14.1; Dio 57.15.8; Coll. 15.2.1, citing Ulpian, 7 de off. proconsulis. Philostratus, Vita Ap. 4.35: Nero suspected philosophers of dabbling in magic and of being diviners in disguise, and this brought them before the courts; he issued an edict, before leaving for Greece, that there was to be no public teaching of philosophy in Rome (Vita Ap. 4.47). Gellius NA 15.11.3–5. Coll. 15.2.2; cf. Pliny, Ep. 10.96.3 (‘pertinaciam certe et inflexibilem obstinationem’). Suet. Tib. 36.

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there was no statutory prohibition of or sustained punishment for the practice of the Christian religion.21 There was repression certainly, sometimes savage, but it was sporadic, as for astrologers. The problem for Christians was probably lack of security, rather than any statistically likely bad happening.22 The attitude that might be taken by the Roman government to Christians in the early second century can be illustrated from Pliny and his exchange of letters with the Emperor Trajan around AD 110.23 Pliny, as provincial governor, with a duty to keep his province (Bithynia) free of bad men,24 was clear that Christians did or could fall into this category, and might be punished; he did not, however, know whether to pardon those who retracted their beliefs. When persons were charged with Christianity in his court, he asked them if they were indeed Christians, and if they admitted it, he repeated the question, sometimes more than once, to give them an opportunity to deny it. If they persisted, he ordered execution for non-citizens, while citizens were to be sent to Rome, for obdurate refusal to conform.25 An anonymous written charge – libellus – had listed many names; some others, named by an informer, had said they had long ceased to be Christians.26 The test, and it was just that, a test, to prove the denial of Christianity was an invocation to the gods, a sacrifice to them before an imperial statue, and an insult to the name of Christ. Pliny had also tortured two slave-women, known as ministrae, to check on the absence of ordinary crime, flagitia.27 Trajan, while approving Pliny’s conduct concerning those formally accused of Christianity, said that there could not be a general rule with a fixed formula. The Christians were not to be hunted out, but if the charge was proved they were to be punished; apostasy secured pardon. But anonymous accusations were not to have any place in trial proceedings; they were 21 22

23 24 25

26 27

Barnes (1968a). It seems quite likely that there were only a couple of hundred Christians put to death for Christianity in the 200 years or so before Decius. Frend (1965), 413, reckons of the undoubted Decian persecutions that ‘Deaths over the whole Empire may probably be numbered in hundreds rather than thousands.’ One could compare the statistical likelihood of being a terrorist victim; it’s minute, but people get worried. See Barnes (1968b); Robinson (1990–92). Pliny, Ep. 10.96–97. There is no space to consider pre-Decian trials, such as those of Polycarp, the martyrs of Lyons, the Scillitan martyrs, or Perpetua and her companions. D 1.18.3, Paul; 1.18.13pr, Ulpian. ‘pertinaciam certe et inflexibilem obstinationem debere puniri’ (Pliny, Ep. 10.96. 1–4). This cannot just be punishment for contumacy (as held by Sherwin-White (1952b), 210– 12, or (1964), 25–26), which is certainly an aggravating circumstance (as it was also with the astrologers), because there had actually been a formal charge – nomen deferre – bringing them before the governor. It is logically impossible to be contumacious before being charged with something to be contumacious about. Some other governors, as we shall see, took a softer line than Pliny’s. Pliny, Ep. 10.96.5–6. Pliny, Ep. 10.96.5 and 8. Quite properly; Pliny clearly had not put any free persons to the torture.

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an appalling precedent, unsuited to the times.28 From this time on, offering a sacrifice to the gods before the emperor, represented by a statue, seems to have been the normal recognized test of the existence or non-existence of Christian faith. The evidence for persecution in this period is too sparse to be conclusive, but it points to successful propaganda, a rewriting of history, by the Christians of the early fourth century, imposing, for ideological reasons, on the earlier Church the experience of their own day. There is some truth in what Gibbon said: ‘The ecclesiastical writers of the fourth and fifth centuries ascribed to the magistrates of Rome the same degree of implacable and unrelenting zeal which filled their own breasts against the heretics or the idolaters of their own times.’29 In the reign of Decius (249–51) an edict was issued which specifically required all inhabitants of the Empire to offer sacrifice.30 Under Decius, and later, in 257–60 under Valerian (253–60, ruling with his adult son Gallienus, 253–68), there was an effort, throughout the Empire, though not long-sustained, to eliminate the monotheistic practice of Christianity. Here there was legal pressure to conform, which amounted to persecution, not simply repression, policy, not just reaction, but even so its objective fell well short of extirpation.31 According to the trials and deeds of these martyrs and confessors, the Roman authorities remained, usually, satisfied by simple recantation, token sacrifices to the pagan gods. This mid-century period probably coincides with the effective disappearance of known jurists; Modestinus was probably dead. The second and earlier third centuries had been when the great jurists were writing and holding office; it would have been interesting to know their opinions on the cult of Christianity and its proper treatment. Unfortunately these opinions are not known to us, because our juristic sources survive almost entirely through the Digest, which was edited under Justinian in a profoundly Christian environment, and material hostile to Christianity was, presumably, excised.32 28

29 30 31

32

Pliny, Ep. 10.97. ‘Actum quem debuisti, mi Secunde, in executiendis causis eorum qui christiani ad te delati fuerant, secutus es. Neque enim in universum aliquid quod quasi certam formam habeat constitui potest. Conquirendi non sunt; si deferantur et arguantur, puniendi sunt, ita tamen ut, qui negaverit se christianum esse idque re ipsa manifestum fecerit, id est supplicando dis nostris, quamvis suspectus in praeteritum, veniam ex paenitentia impetret. Sine auctore vero propositi libelli nullo crimine locum habere debent. Nam et pessimi exempli nec nostri saeculi est.’ Tert. ap. 2.7, has the gist. Cf. Eusebius, HE 4.9, on the so-called rescript of Hadrian to Minucius Fundanus. Gibbon (1776), 467. See Rives (1999) on the essential importance of cult acts in ancient religion. The Christians selected for martyrdom were either bishops and other clergy, the leaders, whose deaths might recall the laity to the observance of Roman norms or, according to Gibbon (1776), 468, ‘the meanest and most abject . . . whose lives were esteemed of little value, and whose sufferings were viewed by the ancients with too careless an indifference.’ Lactantius div.inst. 5.11.19, records that Ulpian, in de off. proconsulis book 7, ‘rescripta principum nefaria collegit, ut doceret quibus poenis affici oporteret eos qui se cultores Dei confiterentur’. (However, as Alan Watson has frequently said, the odd thing about Justinian’s Corpus is not the excisions, but that Christianity was not introduced more.)

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The third period of martyrdom came in the ‘great’ persecution of Diocletian and Galerius and their colleagues in the imperial purple. This happened against a background, as described by Lactantius, of multiplied armies, exhausted agricultural resources, and an ever-growing number of interfering and exacting officials.33 This was the last serious attempt to get rid of Christianity, or at least the Christian Church. Around 303–4, four edicts were issued, although we have the texts of none of them, of which the first ordered the destruction of churches, the burning of sacred books, and the loss of legal privileges for those Christians who were of the upper ranks, and the fourth commanded everyone to sacrifice to the traditional gods on pain of death. This was the persecution in which thousands died horrible deaths; nevertheless there were others who suffered but survived, like the Donatus to whom Lactantius addressed his book on The Deaths of the Persecutors, and others still who confessed but hardly suffered at all, such as Eusebius and Lactantius himself. Death and torture, and the links with social status Since the martyrdoms are by definition concerned with death, even if not always its direct infliction,34 it seems appropriate to look at the legal rules on capital punishment at this period. In the second century, 100 or 150 years before the period covered in this chapter, society in the Roman Empire recognized the fundamental division between free persons and slaves, and also a division between citizen and (free) non-citizen; the latter can in general be defined as a distinction between the inhabitants of Italy, together with the ruling group in a fair number of provincial cities, and all the other inhabitants of the provinces. Overlapping these traditional distinctions of legal status was the division, originally social, between the upper ranks (in the Republic those of senatorial or equestrian rank) and all the rest of the population, often called the plebeians. By the middle of the second century this was hardening into a legal division, between the honestiores and the humiliores.35 The former comprised the old upper ranks and also the town councillors – decurions – of the cities of the Empire, with their families, whether they were citizens or not; the latter consisted of the plebeians and the great majority of the provincials.36 After the edict of Caracalla, known as the constitutio Antoniniana, which granted citizenship to (almost) all free 33 34 35 36

Lact. MP 7.2–4. Cf. his account of the census of AD 306 for the further harassment of the inhabitants of the Empire: Lact. MP 23. Such as the death of Pothinus, the aged bishop of Lyons, from pain and exhaustion (Eusebius, HE 5.1.28–31). See Cardascia (1950); Garnsey (1970); Rilinger (1988). See Sherwin-White (1973), esp. ch. xi. Honourably discharged veterans of the legions, along with decurions and certain individuals (such as civically appointed rhetoricians or doctors), made up the lowest level of the honestiores.

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inhabitants of the Empire, this was the only status distinction of legal consequence, apart from that between free and slave; slaves sometimes counted with humiliores, but were more often rated worse.37 Its significance was particularly to be seen in the criminal law. The traditional penalties for citizens of the late Republic and early Empire had been death, very often effectively commuted into exile enforced by aquae et ignis interdictio, and fines, including confiscation of property. During the first century, most importantly under Claudius,38 the range of penalties was widened, and punishment began to take note of relevant factors, both aggravating and mitigating.39 The ordinary death penalty was decapitation by the sword,40 the only form suitable for honestiores, but there were also aggravated forms, known as summum supplicium: crucifixion, the gallows (furca), the flames, and condemnation to the beasts or the hunting games;41 these were only suitable for humiliores or slaves. From early in the Empire executions were sometimes staged specifically as theatrical entertainment,42 and this remained the case at least until the later second century,43 but we do not find Christians being executed with this sort of elaboration. Such executions should clearly be classed as aggravated forms, but the jurists – at least, as their writings have come down to us – make no mention of them, and might even be understood to have disapproved.44 The status of someone condemned to death and awaiting execution was that of a penal slave; those condemned to the mines were in permanent penal slavery.45 Lesser penalties left civic status unaffected. Corporal punishment, whether in the form of forced labour,46 a flogging47 or something similar, was suitable for humiliores; presumably they might sometimes be fined, if they had sufficient means. Slaves might be confined in fetters.48 It is likely that such punishments were inflicted on Christians, but these might easily be described in the Acta as torture rather than as penalties. 37 38 39 40 41

42 43 44 45 46 47 48

D 48.19.10pr, Macer. Robinson (1998). And see ch. 8. D 48.19.11pr and 2, Marcian; 48.19.13, Ulpian; 48.19.16, Claudius Saturninus. D 48.19.8.1, Ulpian. The sword had replaced the traditional Republican axe, as carried by the lictors, still used early in the Empire (Seneca, ira 2.5.5). Crucifixion ceased to be a legal punishment in the Christian Empire so it is not mentioned in the Digest; cf. Hengel (1977). For the other forms of summum supplicium, see: D 48.19.9.11, Ulpian; 48.19.28pr, Callistratus; 48.19.38.1–2, Paul; 48.19.8.11, Ulpian. Martial, de spectaculis; see Coleman (1990); Vismara (1990). Strabo 6.2.6 is probably the earliest record, describing events around the 30s BC. As witnessed by Apuleius (who was born in c. 124), met. 10.22–23, 29 and 34, and Tertullian, ap. 15.4–5. D 48.19.8.1 and 3, Ulpian; 48.19.25.1, Modestinus. D 48.19.29, Gaius; 48.19.17pr, Marcian. Since they were ownerless, slaves of their penalty, they had no derivative capacity. Pliny, Ep. 10.32.2; Philostratus, Vita Ap. 5.19; D 48.19.8.7, Ulpian. D 48.19.7, Callistratus; 48.19.10pr, Macer; 48.19.28.1, Callistratus. D 48.19.8.13, Ulpian; cf. 48.19.8.9, Ulpian; see also Lovato (1994).

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Torture49 was an accepted part of the Roman criminal process, but it was recognized as unreliable, and there were some attempts at safeguards – for justice, and for the individual concerned.50 As we have seen in previous chapters, the evidence of slaves could not be taken except under torture. However, citizens were exempt under the Republican lex Porcia, and then the imperial lex Iulia de vi of c.17 BC, from summary flogging, and a priori from torture.51 Exceptions might be made in cases of those under suspicion for treason, but the principle was clear.52 Free persons who were not citizens did not enjoy the protection of the laws; we have seen in the chapter on repetundae trials that their torture was classed as saevitia, and was an undoubted aggravating circumstance when money had been extorted, but it was not illegal. Of course, citizens who had been condemned capitally were no longer citizens, and so could be put to the question.53 However, even a jurist as late as Callistratus held: ‘Interrogation under torture ought not to be applied to a freeman whose evidence is not inconsistent.’54 There were no controls on the actual administration of torture, except that people should not die under it – although it was admitted that they often did.55 It had normally two aspects; it could be applied to somebody under suspicion of a crime in order to make him confess, or it could be used for extracting evidence about some third party. Torture of Christians was in general sui generis, to persuade its victims to do something in accordance with morality or law, that is, to worship the Roman gods.56 The discussions of the jurists on torture, as preserved in the Digest, are preoccupied with slaves to such an extent that it cannot have been normally relevant to free persons, even in the Severan period,57 although one must remember that, in contrast to the emperors, the jurists tended to mull over past issues rather than raising new questions. However, this makes tracing the change in the law very difficult, for by the end of the third century, and 49 50 51 52

53 54 55 56 57

See Brunt (1980); Cerami (1991); Ermann (2000a); Pugliese (1964); Vincenti (1989). D 48.18.1pr–4 and 23–24, Ulpian; 48.18.8pr, Paul; a text from Ulpian – 48.18.1.21 – specifically warns against leading questions. E.g. Paul, Acts 22.24–29. Clearly implicit in D 48.18.12, Ulpian citing a rescript of Hadrian; 48.18.1.13, Ulpian citing Antoninus Pius. Although this has been challenged by Russo Ruggeri (2002); see too Polonen (2004), although this article fails to distinguish adequately between citizens and the many other free persons. D 48.19.29, Gaius; 48.18.21, Paul, citing Hadrian that nobody should be condemned for the purpose of putting him to the torture. D 48.18.15pr, Call: ‘Ex libero homine pro testimonio non vacillante quaestionem haberi non oportet’. D 48.18.7, Ulpian; 48.19.8.3, Ulpian. Tertullian, ap. 2.17: ‘You want him to deny that he is guilty in order to force him to be innocent . . . and even his past is not to count against him.’ D 48.18, de quaestionibus; nor do their remarks in D 22.5, de testibus, envisage the torture of the free.

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possibly well before, torture had come to be used regularly on free persons, even if the extension was gradual, perhaps starting with freedmen.58 It seems clear that, like the nature of the punishment to be imposed, this was an area where the distinction between honestiores and humiliores became important, and before the constitutio Antoniniana some non-citizens were nevertheless among the honestiores. Torture was undoubtedly applied to humiliores, as is proved by the explicit immunity of honestiores,59 although this came to be waived in cases of treason.60 The persons undergoing torture in the pre-Decian Acta are seemingly all non-citizens, with the exception of Attalus at Lyons,61 and on that occasion it is clear that there were irregularities, so there is no question of its illegal use being official. In the later persecutions most of the Christians were humiliores, but even those who might seem to be among the honestiores were self-confessed members of an illegal organization, and therefore were obviously not entitled to be exempt. The Christians had no complaint founded in law on the issue of torture; the authorities were not acting unlawfully.

Decius, the gods and the Christians Until the mid-third century Christians were only brought before the courts because of popular opinion, which felt that they were alien,62 hostile to the commonwealth and the pleasures of life, even if some specific charge was required to bring them to justice.63 Toleration there was if the Christians themselves did not provoke accusations, but this toleration was political rather than juridical; punishment, discretionary admittedly, but including the aggravated death penalty,64 was often imposed on those brought before 58 59

60 61 62 63 64

CJ 9.41.9, AD 290. CJ 9.41.8pr, Diocletian on soldiers; 9.41.11, Diocletian on the upper ranks below the senatorial and on decurions; Lact., MP 21.3–4, records the removal of their privileges by Galerius. D 48.18.10.1, Arcadius Charisius, who is a very late jurist; CJ 9.41.16.1, AD 376, adds magic (quae nefanda dictu sunt) to treason, as not giving decurions immunity from torture. Eusebius, HE 5.1.43–44 and 50. Tacitus, Ann. 15.44. I suggest that this might have run: ‘Lucius Titius put himself on record as accusing Perpetua of being guilty against the public discipline of ancestral custom, in that she did . . .’. But not always; Tert. ad Scap. 4.3 records the proconsul Vespronius Candidus sending a Christian back to his home town for a punishment which must by definition have been less than capital; another proconsul, Valerius Pudens, refused to try a Christian on the basis of an examining magistrate’s written statement, and released him; Cingius (or Cincius) Severus simply dismissed confessed Christians; all these were in Africa. In Asia, another governor, Arrius Antoninus, exasperated with a crowd of would-be martyrs, executed a few, but told the rest that if they wanted to die they could easily find a rope or a cliff (ad Scap. 5.1). Peregrinus, who became a Christian before turning to Cynic philosophy, was released by the legate of Syria without even a beating, admittedly to avoid his martyrdom making too big a stir (Lucian, Peregrinus, 14). And it is worth remembering that capital punishment could be imposed for repeated hooliganism (D 48.19.28.3, Call.).

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the courts if they persisted in their confession and refused to provide counter-evidence – it required no more – by performing a sacrifice before a statue of the emperor.65 Sporadic repression never completely ceased.66 During the third century, however, things changed. This was an age of increasing superstition, of belief in the occult, in dreams and visions, for Christians as well as pagans. Oracles became popular again; Diocletian was to consult Apollo of Miletus before embarking on his persecution.67 Miracle-working attracted widespread belief.68 Demons and sorcerers were seen as rife.69 The emperors responsible for the criminalization of Christianity, Decius, and then Valerian, were of traditional, though not Roman or even Italian, senatorial families, brought up to respect the Roman gods and view their cultivation as essential for the well-being of Rome. This respect had been observed in the millennial games of April 248, offered by the Emperor Philip and his son; traditional Rome had done well, and would continue to do well, by following ancestral custom. Further, Rome needed the friendship of the gods in her struggles against the Goths and other barbarians, and the recurrence of plague. Decius had been brought up in this tradition and, in view of the new religious competition, it must have seemed reasonable to him, soon after he came to Rome in late 249,70 to declare a supplicatio by the whole Roman people, all the inhabitants of the Empire,71 a unanimous sacrifice to the gods. Jews, as an identifiable people, following their own mos maiorum, could be exempted from such a requirement,72 but Christians had no such respectability. As Clarke has said: If the rally was to be really effective the leaders of these dissident Christian communities would need to be sought out so that they would bring their flocks with them to the public altars of the gods of Empire (their own god they might continue to worship).73

65 66 67 68 69 70 71

72 73

Pliny, Ep. 10.96.5. E.g. Cyprian, Ep. 39.3, on Celerinus’ martyred uncles and grandmother. Lact. MP 11.7; he also records that Galerius’ mother was highly superstitious and influenced her son. Philostratus, Vita Ap. passim. Flint (1999), 281–92; Alfoldy (1974). Pope Fabian was dead by 20 January 250. This universality is proved from Cyprian, Ep. 15.4 (concerned with treatment of the lapsed), where he refers to ‘qui propinqui et adfines et liberti et domestici esse adseverentur’ of the person receiving the certificate recording that sacrifice had been made; also Ep. 55.13.2 refers to those who sacrificed on behalf of wife, children et domum totam. Cf. Eusebius, Mart. Pal. 9.2, for participation in the sacrifice required from slaves and babies in the Great Persecution. See also Keresztes (1975a). Smallwood (1976), 540; cf. D 50.2.3.3, Ulpian. Clarke (1984), vol. I, p.24.

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The edict has not survived verbatim, but the libelli, the certificates recording obedience to the edict, record that the recipients ‘make sacrifice, pour libation and taste of the sacrificial victim’, and before witnesses.74 Local authorities were responsible for putting the edict into effect; there was a commission of five prominent citizens together with the city magistrates in Carthage, whereas in the town of Capsa there seems to have been just one magistrate.75 The libelli were fairly clearly part of the original organisation; they seem to have been drafted to a standard formula and were countersigned by a commissioner. Perhaps, as with the Egyptian census, there might have been multiple copies, one kept by the signatory, the other by the relevant authorities.76 It is not, however, clear what lists can have been used by the local officials to tick off the sacrificers; local census returns and tax registers were unlikely to include slaves, and possibly might be limited to adults, or even to adult males. Hence it seems probable that some Christians, perhaps many in some areas, were never called,77 but of course they risked delation by their neighbours, unless they took refuge either in city crowds,78 or in the countryside.79 After the time for the supplication was definitely past, latecomers seem to have been sent before the provincial governor, and it seems quite likely that after twelve months the special commissions were dissolved. At any rate, Bishop Cyprian was planning his public return to Carthage before the end of March 251;80 the persecution arising from the edict seems simply to have petered out.81 After all, if the supplicatio had been designed as one glorious gesture, it would be counter-productive to be too concerned with it a year afterwards. There is no evidence that Decius was particularly hostile to the Christians, and there is enough to indicate that his intentions were positive, for the good of Rome.82 However, it is quite clear that the government suspected that the Christians would be troublesome; the leaders of the churches in the most significant cities were seized early in 74 75 76 77 78

79

80 81 82

E.g. FIRA iii 189, p. 593, taken from the forty-one (all papyri) edited by J.R. Knipfing (1923b). On the fixed time, see Cyprian, de lapsis 3. Cyprian, Ep. 43.3.1; 56.1.1. In Asia we find a temple warden and colleagues (ACM, Pionii, 3.1). Rives (1999), also citing D 50.15.3–4, Ulpian. They are known as the stantes, and were often treated as potential confessors (e.g. Cyprian, Ep. 19.2.2). Cyprian, Ep. 21.4.1; 30.8.1 for those who went to Rome. Others came to Carthage; Cyprian was anxious that they should be properly looked after, and provided the means (Ep. 5.1.2; 7.2; 8.3). Eusebius, HE 6.42.2; Cyprian, Ep. 8.1.1, from the Roman to the African clergy on Cyprian’s withdrawal. See, more generally, Tertullian de fuga, passim. In a later persecution Agape and her companions were to take to the hills, ACM, Agape et al. 1.2. Cyprian, Ep. 43.1.2; 55.3.2–6.1 Celerinus, newly ordained lector, is, among other confessors, under no constraint (Cyprian, Ep. 39.1.1). Pohlsander (1986).

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250 and put to death, if they had not hidden themselves – Pope Fabian at Rome, Babylas at Antioch, Alexander at Jerusalem, fell into the first category,83 Dionysius of Alexandria84 and Cyprian of Carthage the second.85 And Cyprian’s flight was not unnoticed; he suffered confiscation as a result, whether as a penalty or, more probably, a contumaciously absent accused.86 Pionius Pionius, a priest (presbyter), was arrested in Smyrna87 on 23 February 250, along with a holy woman called Sabina and one Asclepiades; the Acta claims to be based on his own writing, but seems to have been edited to make close the comparison with Polycarp. Polemon, the temple warden, and clearly one of the commission designated to enforce the Decian edict in Smyrna, came with his men to take them, as self-confessed Christians, to the agora to offer sacrifice and taste forbidden meats.88 He led them off without any physical restraint, but they were wearing woven chains around their necks, which Pionius had made for them, to make clear that they were not going to the agora of their own free will, nor intending to apostatize, as others had.89 Once there before the tribunal, Polemon told Pionius he would be wise to offer sacrifice like everyone else, and thus avoid punishment. Pionius was apparently allowed to make a lengthy speech, to an attentive crowd, rebuking both Greeks and Jews, and maintaining the Christian faith. The commissioners attempted persuasion, but to no avail.90 The people here were not hostile (unless this is a passage interpolated from much later when the world was largely Christian), but wished to adjourn to the theatre to hear more. Polemon, however, was warned that this might lead to a riot. Nevertheless there were further attempts to persuade the confessors, with Sabina being cautioned that she risked being put into a brothel (eis porneion); even if 83 84

85 86 87

88

89 90

Eusebius, HE 6.39.1–4. But Fabian was for months the only martyr in Rome – to be deduced from Cyprian Ep. 21, and comment by Clarke (1984), vol. I, p. 314. Eusebius, HE 6.40: a soldier was sent to arrest him in the same hour as the edict was published; in HE 6.41–42 Bishop Dionysius recounts the pogrom in Alexandria in 248, but this was seemingly spontaneous, under no legal authority. A succession of terrible earthquakes had led to a similar unofficial pogrom in Cappadocia c. AD 235 (Cyprian, Ep. 75.10; cf. Eusebius, HE 6.28). Cyprian, Ep. 5; 7.1; 20.1. Cyprian, Ep. 66.4.1 records the public notice, inhibiting his debtors, among other things; cf. D 48.17.5pr and 3, Modestinus. Eusebius, HE 4.15.47; Eusebius places Pionius as a contemporary of Polycarp, but the demands made on him and his companions indicate that it was in the Decian persecution, as ACM, Pionii, 2.1, states. The fullest treatment of this martyrdom is in Robert (1994). St Paul, in 1 Corinthians 8 and 10.14–33, had held that there was no harm in itself in eating foods dedicated to false gods, because they did not exist; the harm lay in the scandal it could cause. ACM, Pion. 2.1–3.7. ACM, Pion. 4.1–6.5.

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they were Christians, could they not be persuaded to sacrifice to the emperor if not the gods? On their repeated refusal, the notary was brought in, to take down the prisoners’ details for the record; Sabina gave a false name, as she had been cast out by her former mistress when she was converted.91 This is perhaps a suitable place to point out that the provincial governors, like the authorities at Rome, were aided by a significant staff, some attached to them in their capacity of magistrate, others seconded from the local army unit, but in both cases men who were permanently based in a particular province.92 Those whom we find arresting Christians were sometimes from the office staff,93 sometimes soldiers,94 and sometimes from the local city.95 Then there were the officials of the governor’s own judicial staff, among them the commentariensis, a senior post, in charge of criminal proceedings,96 while there were secretaries to write things down;97 criers or heralds98 would also be here. There might also be lawyers at the court.99 There were prison guards,100 soldiers to escort the prisoners,101 and, obviously, torturers. There were those at the amphitheatre, executioners,102 and also gladiators.103 However, the Christian use of technical terms is not always accurate. 91 92

93 94

95 96

97 98 99 100

101 102

103

ACM, Pion. 7.1–9.9. D 12.1.34, Paul; they were therefore not subject to repetundae restrictions, but able to lend money at interest to the provincials. Lopuszanski (1951); Jones (1964); Breeze (1974); Robinson (1992), 191–95. Probably the strator and equistrator who arrested Cyprian, ACM, Cyprian 2.2; Felix, 9; frumentarii in Cyprian, Ep. 81.1.1. The beneficiarii, senior NCOs, who arrested Fructuosus, were also at the amphitheatre (ACM, Fruct. 1.2; 4.1); stationarii, mentioned in Marian 4.3, were soldiers stationed for policing duties at major crossroads and near cities; a stationarius of senior rank arrested Agape and companions (ACM, Agape 3.1). Probably true of the attendants (prosecutores) in Perpetua 3.1; Polemon, the neokoros or temple warden, in Pionius, 3.1; Felix’ deductor was a local decurion (Felix, 22). At least in the Later Empire (Lydus de mag. 3.16) it was his responsibility to see to the arrest and safekeeping of the accused, his production before the governor, the correct recording of the proceedings, the questioning of the accused under torture, and the carrying out of the sentence on conviction. He was present in the amphitheatre for the death of Pionius, 21.1; he is reading the charge to the court in Agape 3.1; and again in Crispina 1.1, where he is also the one to see that her head is shaved, 3.1. As in Pionius 9.1 and 19.1; Crispina 4.1. Found in Polycarp 12.1; the Scillitan martyrs 16. Many in the Acta Phileas (XII/4.1; 5.5; 6.2 and 4; 8.1). In ACM, Perpetua, the chief warder (praepositus carceris), Pudens, who became a Christian, was an optio, roughly a sergeant (9.1); we also hear of ministri cataractariorum [sic] (Perp. 15.5; these are also mentioned in Mont. 17.1). Mont. 4.2; Felix, 31. The confector in Pionius 21.3; the speculator to whom Cyprian gave 25 aurei, ACM, Cyprian 5.4; the carnifex in Marian 12.1 and in Mont. 15.1; the slave Zosimus, whose duties were wider (Agape 5.8 and 6.1), seems to have been the city executioner; simply a minister in Iren. 5.6; carnifices in Acta Phileas 9.3. In Perpetua, 18.9; 19.5; 21.9, the gladiators were venatores, perhaps men condemned to the hunting games.

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Then Pionius and his two companions were taken to the prison, there to await the arrival of the governor; Polemon pointed out to the now restive crowd that the local authorities did not have jurisdiction. In the prison they found other Christians. Pionius made the gaolers angry by refusing to accept gifts from the visiting faithful; clearly it was normal for those Christians who were not under arrest to bribe the gaolers to allow this, or else for the gaolers to take their share of what was brought. So they were put into the inner prison, dark and stifling, as we know from other sources, but they remained so affable that the prison warden relented, and they were allowed to discourse and to pray, night and day, in the company of many visitors.104 Prisons in the ancient world seem to have been at least as nasty as modern ones, dark places of stifling heat (in our Mediterranean sources; RomanoBritish prisons will undoubtedly have been cold and damp), thirst and hunger.105 We hear little about them in the sources, except for the martyrdoms, where the view is from below; normally prisoners’ very condition made them invisible people. Perhaps on the model of the carcer and the Tullianum at Rome, most prisons seem to have had an outer and an inner area.106 Prison was deliberately a place of terror,107 designed to strip the prisoner of all dignity, and to induce confessions by both physical and psychological means. There were rations,108 but they were minimal, for friends and family were expected to supply prisoners’ wants; there seem to have been few visiting restrictions. Such visits, of course, offered prison guards an opportunity to demand bribes,109 and it is clear that this practice was widely accepted. Only in the Later Empire, perhaps under Christian influence since Christians will have been prepared to acknowledge imprisonment, were there serious attempts to improve prison conditions. Constantine tried to shorten the time spent in prison by speeding the holding of a trial; he forbade ill-treatment by the guards, in particular starving the prisoners. The prisoner brought to court should not be in manacles made of iron that cleave to the bones, but in looser chains, so that there may be no torture and yet the custody may remain secure. When incarcerated he must not suffer the darkness of an inner prison [which was presumably for bandits, or those who 104 105 106 107 108 109

ACM, Pion. 10.1–11.7. There does not seem to be segregation of the sexes in this prison. E.g. Eusebius, HE 5.1.27; Cyprian Ep. 22.2. See generally the essays in BertrandDagenbach (1999); Lovato (1994) is concerned with Romans rather than provincials. E.g. Acts of the Apostles 16.24; ACM, Perp. 3.7; Pion. 11.4; Felix 26; CTh 9.3.1, AD 320. Seneca, ep. 24.3, reckoned imprisonment ranked between exile and death. They were mentioned very unfavourably in Montanus and Lucius 6.2–5; 9.3; 21.12; Irene, in Agape 5.8, was to receive a ration, but of merely one loaf a day. ACM, Perp. 3.7; Pionius, 11.3–5. There is unsuccessful bribery, hoping to be given the bodies to bury, in the Lyons affair, HE 5.1.61.

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had attempted escape], but he must be kept in good health by the enjoyment of light . . . 110 Proper records were to be kept of those assigned to ‘squalid custody’.111 Sexual segregation was ordered.112 Governors were to inspect prisoners weekly, see to it that food – two or three libellae (a tenth of a denarius, so presumably as much bread as this would buy) – was supplied to those who did not have it, and that they had a weekly bath.113 Another attempt was made by the local officials to persuade them to sacrifice, saying that Euctemon, apostate bishop of Smyrna, and one Lepidus, were asking for them in the temple of Nemesis; Pionius said that they preferred to await the arrival of the proconsul. However, the local cavalry commander (hipparchos) had them brought forcibly – Pionius struggled so hard that six soldiers were needed to carry him – to the agora, and to the temple of Nemesis where Euctemon was still in an attitude of worship, and Lepidus was cursing Christ. Pionius rebuked the authorities for their lack of respect for their own laws: ‘You punish us for disobeying, and yet you too do not obey; you were ordered to punish us, not to force us against our wills.’114 The public slave who was standing there with the sacrificial meat did not dare approach any of the prisoners, but simply ate it himself.115 All were then sent back to the prison, but Pionius was clubbed on the head by one of the soldiers, doubtless in retaliation for the struggle he had put up against the hipparchos’ order.116 The proconsul of Asia, Quintillianus, arrived in due course; Pionius was brought before the tribunal on 12 March, and testified, with minutes being taken down by secretaries. There was a fairly formal exchange between the two men, with Pionius giving his name, identifying himself as a Christian and a presbyter, and refusing to sacrifice, although the proconsul, perhaps not seriously, said that he could sacrifice to the air.117 Then it seems that Pionius was put to the torture, being tortured by his fingernails, but he continued 110 111 112 113

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115 116 117

CTh 9.3.1, AD 320; cf. 9.1.18, AD 396. CTh 9.3.2, AD 326; 9.3.4, AD 365; 9.3.6, AD 380. CTh 9.3.3, AD 340. CTh 9.3.7, AD 409. Bishops too had a role as prison visitors, to heal the sick, feed the poor and console the innocent, but also to make sure that prisoners were brought before the competent judge and not left to languish (Sirm. 13, AD 419). ACM, Pion. 15.1–16.6; this attitude, and the correct response by the Roman authorities, occurs in ACM, Perp. 18.5–6, and Cyprian 1.5; it is also noteworthy that the authorities do not seem to have wrested the sacred books from Felix. ACM, Pion. 18.5; it will have speeded up the proceedings considerably if the authorities normally provided the already sacrificed and cooked meat, cf. 18.13–14. ACM, Pion. 18.10. ACM, Pion. 19.1–13. D 48.3.6, Marcian, makes clear that a governor must not act as though charges made against a remand prisoner had been proved, but must make an examination ab initio.

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his refusal to sacrifice. Remarking that volunteer gladiators equally despised death, Quintillianus sentenced him to the fire. ‘The sentence was then read in Latin from a tablet: ‘‘Whereas Pionius has admitted that he is a Christian, we hereby sentence him to be burned alive’’.’118 He went immediately to the amphitheatre, where he was burned together with another Christian, from the Marcionite heresy. The fire seems to have been extinguished before the body was consumed, but there is no mention of any coup de graˆce.119 Rather disappointingly, we hear nothing of the fates of the others; they may even have been released. More likely they were just left in prison, where the confessors could think that the emperor had ordered that they should die from hunger and thirst in the sweltering inner prison.120 The lapsed The Decian persecution petered out, perhaps partly because it had been difficult to administer. But unlike previous, and perhaps later, persecutions, there were very many who had denied their faith and sacrificed121 because, as Christianity had spread more widely, Christians were no longer ‘saints’ but ordinary men and women.122 Some of these were true apostates, but as the letters of St Cyprian show, many had simply not had courage enough to risk their lives and had sacrificed, so to speak, with their fingers crossed.123 As Cyprian wrote, there was a significant difference between one who had volunteered to sacrifice and one who only did so under compulsion,124 118

119

120 121 122 123

124

ACM, Pion. 20.1–7. Reading out the sentence as written on a tablet or a sheet of papyrus seems to have been the proper way of issuing it: cf. the Scillitan Martyrs, Cyprian, Agape and Irene, and Crispina. It is also how Augustus, in the afterlife, gives his sentence on Claudius (Seneca, Apoc. 11). ACM, Pion. 21–22; cf. ACM, Polycarp, ss. 12–16. Gusty winds might make a fire unreliable, and the beasts were not always eager to attack human beings (ACM, Perp. 19.6, and 21; Eusebius, HE 5.1.40). Spectacular executions could go wrong, so it was better to have men at hand who could make sure. Cyprian, Ep. 22.2. Even bishops – as well as Euctemon of Smyrna, described above, two in Spain are mentioned in Cyprian, Ep. 67.1.1. See Cyprian, Ep. 54 on the tares as well as the wheat within the Church. Two women known to Cyprian, Numeria and Candida, had sacrificed, but since then they had been busy meeting refugees and other visitors at Rome’s harbour and escorting them to the city; at the time of writing they had looked after the needs of sixty-five confessors (Cyprian, Ep. 21.4.1). There was a woman named Bona, who was dragged to the temple by her husband; ‘she did not sully her conscience, but they, by holding her hands, thus made the sacrifice themselves. She then started to cry out in protest: ‘‘I did not do it; you have done it.’’ And so she too was exiled’ (Cyprian, Ep. 24.11). Ste Croix (1954) points out that there were no canons on sacrifice and incense at the Council of Arles held in 314, unlike the Council of Ancyra in the East. In the West thurification does not seem to have been considered a very serious lapse.

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between one who had brought his whole family and one who sacrificed on their behalf, thus protecting them at the cost of endangering his own soul, and similarly between a landowner who had forced his tenants to sacrifice and one who spared them and welcomed refugees.125 Offering incense (thurification) was perhaps a less blameworthy form of sacrifice, since it was not aggravated by the eating of sacrificial meat.126 Others had not sacrificed, but had acquired a libellus recording their conformity. Some of these might have done so by offering payment to avoid what was forbidden;127 others seem to have acquired libelli through proxies.128 These two groups were known as the sacrificati and the libellatici.129 There were also those who, for some reason given a second chance to confess their faith, redeemed themselves by doing so; these seem to have been sent into exile.130 There is no evidence for fresh persecution, but there may have been new delations, perhaps for fulfilling such Christian duties as visiting the sick, burying the dead, helping widows and orphans, visiting and bringing relief to prisoners.131

Valerian and the criminalization of Christianity This problem of dealing with the repentant lapsed took up most of Bishop Cyprian’s energies132 until persecution was resumed in or before August 257 under Valerian. The reasons for this resumption after nearly four years of his reign are obscure, but there had already been fears of persecution under Gallus,133 and the prevalence of plague made people ready to find a scapegoat. One possibility is that the church had become sufficiently wealthy for its property to be attractive to an emperor enmeshed in a financial crisis.134 Another is that in the province of Pontus, the Christians seem to have given aid to the invading Goths.135 But Bishop Dionysius of Alexandria assigned to Macrianus, Valerian’s a rationibus (roughly, chief secretary to 125 126 127 128 129

130 131

132 133 134 135

Cyprian, Ep. 55.13.2. Cyprian, Ep. 55.2.1 and 55.11. Cyprian, Ep. 55.14.1; cf. 21.3.2. Cyprian, Ep. 30.1. The distinction was also made at Rome (Cyprian, Ep. 30.3.1–2). Ste Croix (1954) points out that in the East, in contrast to the West libellaticii were not held blameworthy, as the Ancyra canons show. Cyprian, Ep. 24.1. As in Cyprian, Ep. 8.3; 13.7. It could even be said, by a hostile source, that some went to prison to get to enjoy the luxuries that were brought in (Lucian, Peregrinus, 14); Cyprian had seen this danger, and wrote that drunkenness and debauchery were to be found among soi-disant Christians (Cyprian, Ep. 13.4.1). Eusebius’ two references to Cyprian are both in this context (HE 6.43.3; 7.2.3). Cyprian, Ep. 57.1.2; 58. Bovini (1948), ch. iii. For both these views, see Frend (1965), 422–23.

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the imperial treasury), a religious motivation for his encouragement of the persecution.136 Whatever its proximate cause, Valerian’s first edict forbade Christians to hold assemblies, including such events as funerals, under pain of capital punishment, and required some recognition of the Roman rites, without going so far as to require worship of the Roman gods, or the abandonment of other gods. On 30 August 257 Cyprian was called, or brought, before the proconsul of Africa, Aspasius Paternus, in private (in secretario). Paternus asked Cyprian, whom he quite likely knew and whose position he certainly knew, what he had to say to the edict. On Cyprian’s replying that he served the one God, and prayed to Him for the health of the emperors, Paternus asked if he would be willing to go as an exile to the town of Curubis (only some 50 kilometres away), and he agreed. Paternus then asked for the names of the presbyters in Carthage, presumably since they too were leaders of the church. Cyprian replied that it was a good and useful provision of the laws that delators were forbidden; therefore he could not give this information. They were living quietly in their communities, ‘since our discipline forbids anyone to surrender voluntarily’, but if they were sought they would be found.137 Paternus then reiterated that the emperors had ordered Christians not to hold meetings or enter cemeteries.138 Temporary exile seems to have been widely applied;139 his discretion, rather than his orders, probably led the legate in Numidia to condemn some clergy to the mines.140 Cyprian remained for a while in Curubis. The legal position is unclear. He was perhaps technically relegated from Carthage,141 but we find him a year later back in Carthage, staying on his own estate.142 Some who were exiled undoubtedly also suffered loss of property, although Cyprian does not seem 136 137

138

139 140 141

142

Eusebius, HE 7.10. ACM, Cyprian 1; Cyprian, Ep. 77.2.1–2. The Early Church was in general hostile to those who actively sought martyrdom because of the risk of recantation; see ACM, Polycarp, 4. Christ himself had left Judaea for Galilee (Ev. John 7.1; 10.39–40). ‘ne in aliquibus locis conciliabula faciant nec coemeteria ingrediantur.’ The concept of a cemetery was a new one, arising from the burial of martyrs close to a church building. Pagan Romans were buried in plots along, for example, the via Appia, or in private land (see FIRA iii 86, p. 276). E.g. Eusebius, HE 7.11.3–11 and 14–17, on Dionysius of Alexandria and some of his clergy. Cyprian Ep. 76.2.2 and 4; 77.3.1; this was technically a capital penalty (D 48.19.28pr, Callistratus). Governors did not have the power to deport – a capital penalty (D 48.19.2.1; 48.22.6.1; 48.22.15.1) – but they could relegate, fine, and sequester or confiscate property (D 48.17.2pr, Macer; 48.17.5, Modestinus; 48.22.4–5, Marcian). At much the same time Dionysius of Alexandria had been recalled from distant Cephro to a town much closer to Alexandria (Eusebius, HE 7.11.10–17). Cyprian will not have returned without permission; in Ep.13.4.1, he rebuked those who did because, if caught, they would now be condemned not as Christians but as criminals. It is just possible that this was a form of house arrest (D 48.22.9, Ulpian, and 10, Marcian).

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to have fallen into this category;143 he had already suffered some loss of property in the Decian persecution. Cyprian had received advance information from Rome about Valerian’s second edict, for he was expecting to be summoned again before the governor, now Galerius Maximus.144 This second edict, in the form of an oratio to the Senate, and also sent as a mandate to provincial governors, may have sought information on the enforcement of the earlier edict;145 it was published sometime in the summer of 258. It had reached Rome by August, for Pope Sixtus, along with four deacons, was put to death on 6 August in the cemetery of Callistus,146 and the persecution was in full swing under the prefects.147 Bishops, priests and deacons were to be summarily executed, while senators, egregii, such as imperial procurators, and equestrians who persisted in adherence to Christianity were to lose their status and forfeit their property; obduracy would bring capital punishment (probably normally meaning deportation). Matrons, presumably women of senatorial or equestrian rank, were to face confiscation of all property and relegation. Caesariani, most likely meaning those serving as lower officials in the imperial household, perhaps mostly freedmen, who had either confessed earlier or did so now, were to have their goods confiscated and be sent in chains to forced labour on imperial estates.148 We know too that some of those sentenced under the earlier edict were now recalled from exile and executed.149 Cyprian News was brought that Cyprian was to be arrested and taken to Utica (by soldiers – frumentarii – of the proconsul’s officium); he was advised to avoid this by withdrawing temporarily from his country estate. This he did, not to escape his martyrdom, but so that he would not be forced to confess his faith in a city other than that of his own see; the proconsul would soon return from the assize and be back in Carthage.150 He must soon have 143 144 145

146 147 148 149 150

Cyprian, Ep. 19.2.3; 24.1.1. ACM, Cypriani 2. Unlike the reaction to Decius’ edict, which was often cowardly, this first edict of Valerian seems to have been widely and flagrantly flouted. This was not tolerable, but Decius’ universalist approach had been shown to be unworkable. But his informant must have left Rome almost immediately, because there is no mention of Lawrence and his companions who were martyred on 10 August (Cyprian, Ep. 80.1.4). Cyprian uses the plural, perhaps referring to the Urban Prefect assisted by the praefectus vigilum, perhaps to the Praetorian Prefects – see further, Clarke (1975). Cyprian, Ep. 80.1; this letter was written to a fellow African bishop, who had presumably asked if Cyprian could confirm the rumours. Not just Cyprian but, for example, bishops Agapius and Secundinus (ACM, Mar. and Jac. 3). Cyprian, Ep. 81. In this letter to his clergy and laity, Cyprian reiterated his instruction that they were to remain calm, and not stir up trouble by pushing forward for voluntary martyrdom; only if arrested and questioned must a Christian do more than profess his faith, he must confess it.

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returned, for it was there that, on 13 September, two fairly senior officers151 on the proconsul’s staff arrived at the estate, and took him in a wagon to a suburban estate where Galerius Maximus was nursing his health – in fact, he was to die only a few days after Cyprian’s execution. Cyprian was remanded until the following day, and spent the night at the proconsular palace in Carthage, in the care of the strator. Here all the Christians of the city were able to visit him.152 The proconsul did not come into the city, but remained at the ager Sexti, where Cyprian was arraigned before him in the Sauciolan hall. Galerius Maximus formally checked his identity, and asked if he had performed the required religious rites (under the first edict). On Cyprian’s denial, the proconsul bade him be careful, but Cyprian replied that he should carry out his orders, for in a matter so legally clear there was no need for carefulness.153 Galerius Maximus consulted with his consilium, his advisers, and then spoke reluctantly, condemning, as an example, Cyprian for his persistence in sacrilege, conspiracy and enmity to the gods of Rome. In the customary manner, he read his decision from a tablet: ‘Thascius Cyprian is sentenced to die by the sword’, to which Cyprian replied, ‘Thanks be to God’ (Deo gratias).154 He was led out into the grounds of the estate. He removed his cloak so that he could kneel on it, then removed his dalmatic and gave it to his deacons – so clearly this governor at least was reluctant to execute summarily the lesser clergy – and told his friends to give the executioner (speculator) 25 gold pieces.155 He then himself bound his eyes with his kerchief, although a priest tied the knot for him, and thus he went to his death. His body was laid out nearby and remained there until nightfall, to satisfy the curiosity of the pagans. Then it was taken up by the faithful and buried, openly not secretly.156 It is evident that Galerius Maximus (whose final illness might have affected him either way) was reluctant to impose death 151

152 153 154 155

156

strator and equistrator a custodiis; Lopuszanski (1951). Strator seems to vary between groom and stablemaster via equerry, but always horsy, so why equistrator? Often the rank is clearly sub-clerical, on a par with praecones and standard-bearers, but Symm. Rel. 38 describes a palatine official who seems to be of some standing. ACM, Cypriani 2. ACM, Cypriani 3; ‘in re tam iusta nulla est consultatio.’ ACM, Cypriani 4. D 48.20.6, Ulpian, states that prisoners could keep their own clothes, the small change in their money belts, rings of low value, and so on, right up until they were stripped for execution; the proceeds from such things were not the executioners’ perquisites but kept by the governor as petty cash. It is clear, however, that Cyprian was receiving the special treatment appropriate to someone of the upper ranks. ACM, Cypriani 5, despite this being explicitly forbidden in the first edict. In earlier times the bodies, or the ashes, of those executed were to be delivered to their relatives or friends, except in cases of treason (D 48.24.1, Ulpian, and 3, Paul). See also ACM, Polycarp, ss. 17–18, where this was done, and Lyons, where it was not (Eusebius, HE 5.1.57–62).

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even on the bishop, the leader of the local church, and that he left alone the other clergy, and made no attempt to interfere with the illegal funeral. After Galerius’ death there were other martyrdoms in Africa, at which again due process seems to have been observed. The prisoners had to wait for several months until the arrival of a new governor, and then they were sentenced to the sword.157 In Numidia we hear of the deaths of Marianus and James and their companions.158 In Spain, in January 259, Bishop Fructuosus of Tarragona was given time to change his slippers for sandals before being led to prison.159 He was questioned by the governor, apparently without torture, and sentenced to the fire.160 The crowd is here portrayed as sympathetic rather than hostile; many persons offered Fructuosus drugged wine to drink. The Christians were able to collect the ashes without hindrance.161 In spite of there now being a general law against the practice of Christianity, its enforcement was clearly going to be sporadic. This persecution too seems to have petered out; it was effectively ended in 261 (after the Persian capture of the Emperor Valerian) by Gallienus who wrote to the bishops of Egypt, not legitimating the church, but restoring to the Christians their places of worship, including cemeteries, and ordering none to molest them.162

The ‘great’ persecution Years of peace and reconstruction followed for the Church, although there were occasional bad moments, such as the martyrdom of Marinus, which arose from his jealous delation by a rival for promotion to the centurionate.163 Then came the ‘great’ persecution, urged by Galerius, at that time 157

158 159 160

161 162 163

ACM, Montani & Lucii; one of the group, whose friends had (falsely) denied that he was a deacon, was only sentenced after convincing the governor of his status (Mont. & Luc. 23.12.3; 23.20). ACM, Mar. & Jac. ACM, Fruct. 1. ACM, Fruct. 2. The governor seems to have enjoyed black humour. He asked Fructuosus if he knew that the (pagan) gods existed, and when the bishop said ‘No’, he responded ‘You will’; when he asked Fructuosus if he was a bishop and received ‘I am’, he replied ‘You were’. ACM, Fruct. 3.1–2; 6.1–2. Eusebius, HE 7.13. Eusebius, HE 7.15. The martyrdom of Maximilian in 295 is obscure. He refused recruitment into the army, on the grounds that Christians could not serve, but this was simply not true, as the proconsul pointed out (ACM Max. 2.9; cf. Juli 2); perhaps he was a member of the Montanist or some similar sect. What seems reasonably certain is that he was refusing conscription; army service was no longer just for volunteers. The change of heart in the same year of the senior centurion Marcellus is also unexplained; it must be relevant that it sprang in both recensions from the celebration of the emperors’ official birthdays (Marc. (M)1.1; (N) 2.1). Both these martyrs were punished under military law rather than for Christianity as such.

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Diocletian’s Caesar in the East, and agreed to by Diocletian. (It should be noted that this only occurred nearly twenty years after Diocletian’s accession.164) It was prefigured by Diocletian’s edict against the Manichees, perhaps in 297 but more likely 302, which has survived.165 (Manichaeism was, of course, the religion of the Persians, the only external enemy on a par with the Roman Empire.) The Manichaean leaders and their books were to be seized and burned, other adherents of the sect were to suffer simple death and confiscation, and although the lives of honestiores were to be spared, they were to be sent to the mines (which, however, was legally a capital sentence, and was likely to result in physical death) and their estates confiscated. The actual trigger for the persecution of Christians was relatively trivial.166 Eusebius seems to understand the renewal of persecution as a punishment on a church which had succumbed to pride, sloth and sectarian fighting.167 Unfortunately, perhaps because of the natural emotion of one who was for much of the time an eye-witness,168 Eusebius is much less useful on any legal aspects for this period than when he was reporting earlier persecution, often from trial accounts. The first edict, and the martyrdom of Felix There were four edicts against the Christians, which can be fairly safely reconstructed. The first,169 issued at Nicomedia, on 23 February (Lactantius) or March (Eusebius) 303, and also published in the West, said that those who persisted in the faith were to lose any juridical privileges they had enjoyed, becoming subject to torture,170 and that any action could be brought against them in court but that they could not sue for injuries done to them;171 further, all Christian churches were to be destroyed, all sacred 164 165 166

167 168 169 170

171

Baynes (1956), 662–65. Coll. 15.3. Bruce (1983), like Molthagen (1970), argues for the earlier date, Corcoran (1996), 135–36, together with Mommsen (1899), for the later. Lact. MP 10–11, gives the casus; Christians in attendance on the emperor crossed themselves during the consultation of the entrails by the haruspices, and in consequence there were no signs as to the future even after repeated sacrifices; the sign of the Cross was understood both by Christian and pagan as very effective against demons and pagan gods. Eusebius and, according to him, Constantine, could find no rational explanation for the renewal of persecution. Frend (1965), 477–81, thinks it was based on many of the same factors that had motivated Decius, the traditional values of Rome. Eusebius, HE 8.1, especially at 8.1.7. Eusebius, HE 8.9.4. Eusebius HE 8.2.4; 9.10.8; mart. Pal. pr. 1, which says April; Lact. MP 13.1. CJ 9.41.11, Diocletian, cites Marcus Aurelius as having held that the higher equestrian grades, down to and including their grandsons, should not be tortured or given plebeian punishments. This implies that those lower in the social scale were subject to torture, but the borderline may have been elsewhere before the constitutio Antoniniana. For Ulpian (D 50.2.2.2), some fifty years later, the same privilege applied to decurions and their children. Lact. MP 12.

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books handed over to be burned, and freedmen serving the emperor as officials were to be reduced to slavery.172 Assemblies of Christians were presumably forbidden. (There were different reactions by Christians in West and East to those who handed over the scriptures (traditio); it was not seen as a serious matter in the East, whereas in the West it justified the removal of a man from his clerical status.173) In the West generally the edict was sporadically enforced. The evidence shows Constantius, who was the Caesar controlling Gaul and Britain, ‘contenting himself with the perfunctory demolition of churches’.174 However, Maximian, Augustus of the West, pursued a rather more vigorous policy in Africa, Spain and Italy until his enforced abdication in May 305. In Africa Proconsularis the decree was not promulgated until 5 June 303. In the city of Tibiuca the Christian clergy were summoned, but bishop Felix was away, apparently with the divine books, as his clergy attested; they were remanded in custody. On Felix’ return the following day he was summoned before the curator civitatis;175 as usual, there was a formal identification.176 He refused to hand over whatever books or parchments he had, and was given three days to reconsider, after which he was remanded before the proconsul; his escort (deductor) to Carthage was a decurion. The next day, before the legate, he again refused to surrender the books, and was sent to the inner part of the prison where he stayed sixteen days until the arrival of the proconsul, Anullinus; Felix was then, on his continued refusal, sentenced to be beheaded.177 It is interesting that apparently no attempt was made to wrest the books from the middleaged bishop; as Pionius had said, the governor had lawful power to punish, but not to force men to do things against their will.178 The later edicts Not many months later, disorders in Syria and Armenia led to a second edict which ordered the arrest of all Christian clergy.179 A third edict, of September or November 303, probably linked with Diocletian’s celebration 172 173 174 175

176 177 178 179

Eusebius, HE 8.2.4; other sanctions for continuing to possess the sacred books are not clear. Ste Croix (1954), 84ff, citing the Council of Arles. Ste Croix (1954), 106. The curator, or logistes, of a city was supposed to act as a control on the city’s financial management; at this period it was an imperial appointment, in the fourth century it was to become an elected magistracy. This very reasonable step is recorded quite frequently: e.g. for Polycarp, Pionius, Cyprian, and Fructuosus. ACM, Felicis 23–31. The note on where he was buried (s. 31) suggests that the burial was carried out by fellow-Christians. ACM, Pion. 16.6. Eusebius HE 8.2.5; 8.6.8–9; mart. Pal. pr. 2. The presidents (proedroi) of all the churches were to be imprisoned and then compelled to sacrifice.

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of his Vicennalia, in view of the authorities’ struggle with the sheer numbers of prisoners, offered amnesty to those who would sacrifice, penalties for those who refused.180 Then, early in 304, during Diocletian’s illness and clearly emanating from Galerius, came the fourth edict, ordering all the Roman world, men, women and children, to sacrifice, on pain of death.181 Eusebius describes how registers of the inhabitants were compiled in 306, throughout Caesarea at least, designed presumably to catch the urban poor, from whom most Christians came, who would not be on the normal tax registers. There were also reports of impersonation, the purchasing of immunity, and even bogus torture sessions.182 ‘It is difficult to decide whether these collusive arrangements testify more strongly to the humanity or the venality of the officials concerned’183 – the officials themselves may not have known. In the West, the complete absence of references to libelli certifying sacrifice, in marked contrast to Decius’ persecution, suggests strongly that Constantius I, now Augustus in succession to Maximian, made no effort to enforce the edict, although he made no attempt to check the persecution in the East.184 In his own sphere there continued to be tolerance, even after his death in 306, since his son Constantine, future emperor and future Christian, ruled in Spain, Gaul and Britain, while Maxentius, who controlled Africa and Italy until overthrown by Constantine in 312, was also tolerant. In the Eastern Empire things were different. Diocletian abdicated on 1 May 305.185 Galerius, who became Augustus in his place, with Maximin Daia as his Caesar, embarked on a policy of cutting away the privileges against torture; he allowed torture to be used not only on decurions, but also on all below the rank of senator, officials and landowners described as egregii or perfectissimi, and even in civil as well as criminal cases.186 To use torture on free men, let alone honestiores, in civil cases was quite unheard of, although it was used on slaves (and infamous persons such as gladiators); it is hard to imagine anything more outrageous to the Roman sense of dignity. The use of fetters (compedes, the kind that cleaved to the bones), and crucifixion as a death penalty, were extended to these honestiores. Females of high rank became liable to be sent to the gynaeceum, forced labour in the imperial 180 181 182 183 184 185 186

Eusebius, HE 8.6.10. In mart. Pal. 1.3–4, Eusebius describes the extraordinary lengths to which the authorities went to be able to class a man as having sacrificed. Eusebius, mart. Pal. 3.1. Eusebius, mart. Pal. 4.6 and 8 and 14; cf. Council of Ancyra, c.1. Ste Croix (1954), 100. Ste Croix (1954), 87. Lact. MP 19. D 22.3.7, Paul; 22.5.21.2, Arcadius; PS 5.16.1 and 2. Senators were clarissimi; high officials, who would normally be of senatorial rank, were spectabiles; the holders of the very highest posts, Urban Prefect, Praetorian Prefect, Quaestor of the Sacred Palace, Magister militum, were illustres.

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weaving and dyeing establishments.187 Eusebius and other historians see this as an attack on the whole social order of the Roman state. Furthermore, it was at this stage of the persecution that, on grounds of humanity, the emperors abandoned the imposition of the death penalty; instead they passed sentences of deliberate mutilation, in particular the gouging out of an eye and the maiming of a foot.188 This strange understanding of the imperial virtue of clemency was part of Galerius’ character, perhaps even of his policy, until his death; it was not restricted to his dealings with the Christians. Agape and her companions Because the effect of the edicts was cumulative, it is not necessarily clear to us, and may even not have been clear to the governor concerned, which edict was the legal authority for the arrest of these or those Christians. In late March 304 a group of young women from Thessalonika were arrested by a stationarius, a beneficiarius called Cassander, for refusing to eat sacrificial food;189 it seems possible that they were a group of consecrated women who had fled to the hills to evade the first edict, for they still had considerable numbers of sacred books and other writings with them, which they had secretly held on to; these were now to be burned.190 They were brought before Dulcitus, the governor, and the charge was read by the commentariensis, in the presence of both Cassander and the defendants. They were questioned on their refusal to sacrifice or eat the sacrificial meat; and persisted in their rejection. One of them, a widow, was pregnant, and so she was remanded to gaol,191 as were four others because of their youth, but two of them, Agape and Chione, were condemned. The governor read from a sheet that he sentenced them to the fire for ‘adhering to the worthless and obsolete worship of the Christians which is hateful to all religious men’.192 The following day Irene, another of the group, was brought before Dulcitus, and after the possession of sacred books had been dealt with, he described her – obscurely – as guilty even before she ran away, so perhaps she was a fugitive slave; hence her punishment was to be prolonged. She was to be placed naked in the town’s brothel, under the supervision of public notaries and of the town’s executioner, and to receive a ration of only one loaf a day; 187 188

189 190 191 192

Lact. MP 21.3–4; cf. 22.5 on lack of due process. Usually the right eye and the left foot (Eusebius, HE 8.12.10). William the Conqueror similarly was to replace the death penalty with mutilation (blinding and castration) in eleventh-century England (Stubbs (1900), 84–85). ACM, Agape et al. 3.1 ACM, Agape et al. 5–6.1. As had been the similarly situated Felicitas (ACM, Perp. 15; D 1.5.18, Ulpian; 48.19.3, Ulpian; PS 1.12.4). ACM, Agape et al. 3–4.

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he threatened the notaries and the executioner with severe penalties if she were removed.193 There is sufficient evidence of this being seen as appropriate treatment for obstinately virginal Christians;194 moreover, women condemned to the mines were not expected to work with pick and shovel but to service the miners (in ministerium metallicorum).195 However, we are told that Irene’s chastity was not attacked or even insulted, so she was recalled; the governor asked for a sheet of papyrus and wrote on it that since she had refused to sacrifice she was sentenced (like the other two) to be burned alive.196 Some brief accounts: Irenaeus of Sirmium; Phileas of Thmuis; Crispina A bishop who suffered martyrdom in the spring of 304 was Irenaeus of Sirmium, arrested and brought before the governor of Pannonia. He refused to sacrifice and was put to the torture, and locked up in prison for many days, but still refused.197 The governor then condemned him, around midnight, at first simply to be thrown into the river (in fluvium praecipitari), but Irenaeus made an objection, that he had expected many tortures but then to be put to death with the sword, so the governor altered his sentence to beheading, and it was only the dead body which was thrown into the river.198 Irenaeus was in the right, because there were legal restrictions on the ways in which the death penalty could be imposed. Another bishop who died for his faith was Phileas of Thmuis in Egypt. On his fifth appearance, the only one recorded in the Acta, before the Prefect of Egypt, Culcianus, perhaps early in 307,199 Phileas persisted in his refusal to sacrifice. Some of the lawyers in attendance tried to check him;200 other lawyers, presumably aiming to save Phileas, claimed that he had sacrificed in secret, but he denied this.201 The governor offered to release him as a favour to his brother, who was one of the lawyers, and remarked that 193 194

195 196 197 198 199 200 201

ACM, Agape et al. 5–6; cf. ACM, Pion. 7.5. Tert. apol. 50.12: ‘Nam et proxime ad lenonem damnando Christianam potius quam ad leonem’: you admit we see loss of chastity as worse than death. The threat was also made in ACM, Pot. & Bas. 2; Pion. 7.6; Eusebius, HE 8.12.3–5; it was essentially intimidation, not penalty. In March 2004, prisoners from Guantanamo Bay alleged that, as a form of torture, the Americans paraded naked prostitutes before devout Muslims. At Abu Ghraib prison in Iraq, soldiers have been charged with assault, including forcing prisoners into sexual acts (The Week, 15 May 2004, etc.). D 48.19.8.8, Ulpian. ACM, Agape et al. 5.8–7.2. ACM, Iren. 1–2. ACM, Iren. 4–6. ACM, Phileae A I. See Knipfing (1923a). ACM, Phileae B 4.1. ACM, Phileae B 5.5.

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Phileas’ great wealth could be used for the benefit of the whole province, an appeal to his benevolence.202 The lawyers tried for a postponement on Phileas’ behalf, which the governor would willingly have granted, but Phileas rejected it. Finally Phileas refused to see his wife and children, despite being implored to by the lawyers, the office staff, the logistes, and his kin.203 The governor finally condemned him to die by the sword; on his way to execution his brother cried out that he requested an appeal, but Phileas denied that he wished to make an appeal. Then he was beheaded, together with a mysterious tribune called Philoromus who had intervened on his behalf.204 Why Philoromus, a man of the upper ranks since he is described as a tribune, should be so precipitately sentenced to death is a mystery, particularly when the lawyers were interfering with the course of justice without being rebuked. But their presence and their initiative are interesting. After 305 these edicts were not effectively applied in the Western half of the Empire, although a year earlier, in an Africa still governed in December 304 by Anullinus (who had condemned Felix), Crispina refused to offer incense, despite being told – hardly truthfully – that all Africa had sacrificed; her obduracy led to the governor ordering her head to be shaved, but she remained firm, and was sentenced to beheading.205 In the East, however, Eusebius could say that for ten years there was no respite, although admitting that the persecution eased somewhat in 311.206 It was then that Galerius, on 30 April, in his final illness, issued an edict allowing Christians to be free to live as such, provided they did nothing contrary to public discipline; it said nothing, however, about the restoration of confiscated church property.207 Yet in spite of this relaxation, Maximin Daia continued fervently to repress Christians in Egypt, Syria and Asia Minor,208 until the so-called edict of Milan, issued by the Emperors Constantine and Licinius in 313, enforced toleration everywhere.209 There was occasional local harassment of 202 203 204 205

206 207

208

209

ACM, Phileae B 5.1 and 4. ACM, Phileae B 6.2–4. Epistula Phileae; ACM, Phileae 7.3–8.1; 9.3; cf. Eusebius, HE 8.9.6–8. ACM, Crispinae. The order to shave her head has been seen as a later elaboration, but half a century earlier Cyprian had written consolingly to those who had been condemned to the mines and had, among other trials, had their heads half-shaven (Cyprian, Ep. 76.2.4); on shaving the head linked to condemnation to opus publicum, see Apul. Met. 9.12; Catullus, Carm. 59.5; Artemidorus, Oneirocrit. 1.21. Eusebius, HE 8.15; 8.16.1. Lact. MP 34; Eusebius, HE 8.17. It allowed assemblies of Christians, ‘ita ut ne quid contra disciplinam agant’, and opened the prisons; in return Christian prayers for state and emperors were required. Lact. MP 36.3–7; Eusebius, HE 8.12.10. In this last period of persecution, alleged to be at the request of the cities themselves (which suggests that Christians were still alien to popular paganism), mutilation had replaced the death penalty. Lact. MP 48; Eusebius, HE 10.5.

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Christians in the next decade or so, and again under the pagan Emperor Julian,210 but from Constantine onwards one can reasonably refer to the Christian Empire, even though many pagans remained.

Popular pressures and the rule of law Popular pressure, sometimes erupting as mob violence, was always an important factor in the trials of the Christians. It is stated by Tacitus, implied by Suetonius and Pliny, and may be assumed for the Scillitan martyrs; it is explicit with Polycarp, at Lyons, and with Montanus and Lucius; Cyprian thought it safer for himself and his clergy to keep a low profile even when no edict of persecution was in force.211 Emperors enforced general persecution, governors enforced local persecution or repression, but both were more often reacting rather than leading, despite the rhetoric of many Acta, and the understanding of many Christians. While we find the accusations of incest and cannibalism recorded only in the rhetoric of the Christian apologists, it is clear that even if Christians were not common criminals, they were indeed atheists in the view of the ordinary Roman. Official religion may not have been much concerned with personal spirituality,212 but it was concerned with social goals. Penal policy in the third century and at the start of the fourth was to repress Christianity as hostile to the structure of the state and to the loyalty the provinces owed to the Roman gods, however defined. The edicts of persecution focus, reasonably enough, on destroying the leaders, as obstacles to widespread recantation; there was no attempt at a total annihilation of all Christians, it was enough to try to wear them out. Recantation was what was wanted by the authorities, not the death of the confessor.213 And it is probable that there were recantations on a considerable scale, not only in the persecution of Decius.214 Their numbers cannot be known, still less how many recantations were sincere, or how many simply reflected people keeping their heads down until times improved. This explains why Cyprian was so preoccupied with the problem of how to treat those who had lapsed but were now repentant; comparably, it was also to be a major concern of Augustine as regards the re-baptized after the Donatist schism. When public opinion changed, then the persecutions ceased. In many provinces of the East, the people may have been sick of bloodshed, of the horrors of the great persecution. Sympathy for Christians had occasionally 210 211 212 213 214

Lenski (2002), 214. E.g. Cyprian, Ep. 5.2.1; 7.1. Cf. Brown (1998) on the contrast between asceticism as practised by pagans and by Christians. As was explicitly stated in ACM, Polycarp 2.4. For example, a recantation in Bithynia after two years of pressure, to the great joy of the governor (Lact. div. inst. 5.11.15).

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been evident before, as it had briefly been for Perpetua and Felicity,215 or for Fructuosus. Admiration in many cases may have succeeded exasperation at the courage and constancy of the martyrs. ‘Spontaneous popular hostility to Christianity seems to have virtually ceased by the end of the third century’.216 When the apologists, such as Tertullian or Eusebius, using the language of the educated, had come to convince intellectuals that the claims of Christianity were not actually contrary to reason,217 when the curial class came to recognize its good citizenship, when practitioners of religion came to believe in the superior magic of the Christian God, when more people came to have good neighbours who were Christians, then the motives leading to persecution disappeared. As Tertullian had said, it was ignorance that brought about hatred; once men ceased to be ignorant, they not only left off hatred but became Christians.218 And it can be no coincidence that sympathy with Christianity had spread into the imperial house; Constantine was to be the first Christian emperor. The Christians had worn down the Roman government, not the other way around. What would the jurists have said? Although there are instances of both repression and true persecution, in most of the martyrdoms the governors try to persuade the Christians to recant, and only reluctantly put them to death; the tortures are often explicitly for the purpose of moral suasion. There is little blood-thirstiness to be observed in the official classes, in spite of the capital penalties imposed; aggravated death penalties, such as fire and the beasts, are mentioned, but many died by the sword (for practical as well as legal reasons). Only in the account of the Lyons martyrs do we get clear irregularities, of which the worst was accepting the testimony of slaves against their owners.219 In one of Cyprian’s letters we hear of a sizeable group of martyrs, one of whom died in the mines, one in prison, two as a consequence of their torture, and thirteen who starved to death in prison, presumably voluntarily.220 But other, lesser, penalties were imposed, and sometimes none; confessors, such as Aurelius, were by definition released, sooner or later.221 It is clearly wrong to think of death as the normal fate of an arrested Christian, even when it was the penalty of the law. Had Pionius’ companions in prison been put to death, one can be sure it would have been noted. Cyprian’s clergy, supporting him in his last moments, were apparently untouched, despite the terms of Valerian’s second edict. The Donatus to whom Lactantius addressed his de mortibus persecutorum had qualified as a 215 216 217 218 219 220 221

ACM, Perp. 19–20. Ste Croix (1954), 103. Cf. Pionius’ use of Greek philosophers (ACM, Pion. 17). Tert. apol. 1.6. Eusebius, HE 5.1.14; cf. D 48.18.1.1 and 5, Ulpian, citing Hadrian and Antoninus Pius; 48.18.18.6–8, Paul. Cyprian, Ep. 22.2.2. Cyprian, Ep. 38.

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confessor nine times, before three different governors;222 death was not as common as the martyrologies make out. Treatment of prisoners was brutal in the Roman world, but there is no reason to think it was more so for Christians than for others. Torture had become a normal instrument of judicial inquiry; the difference with the Christians is that there was no problem about getting them to admit the criminal facts, so that one could argue that torture was legally unnecessary, but, of course, for them it had a different function, to persuade them to recant. In executions, suffering and humiliation were what the public expected, and enjoyed, but by no means all executions were public displays; there is no evidence that Christians were intended to suffer more than other criminals. Ulpian admitted that many people did die under torture, although that was not the intention.223 The practice of Roman criminal law is not a topic for the squeamish, but the rules of procedure were there, and they mostly seem to have been followed. In general, indeed, the Roman authorities acted with correctness, sometimes even with restraint, although mob pressure might be an important factor.

222 223

Lact. MP 16.3–11; cf. Tert. apol. 12.5; 39.6. He will have known; the jurists did not only write in their studies, most of them played a part in public life, as ‘the authorities’.

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Chapter 6 SOME TRIALS FOR TREASON AND M A G I C I N T H E F O U RT H C E N T U RY

In this chapter, we seem to be living in a different legal world. There was continuity, certainly, from the classical period of law, but also marked differences from the Principate. The focus in these trials is more political than in Piso’s case, partly because our literary source is contemporary, and indeed involved, with the events described. But we have also formal legislation from the period, and it is noteworthy that both sources often share a hysterical, or rhetorical, tone. This is how Romans of this period perceived treason and magic, and criminal procedure could be bent to conform. First, however, a little background history seems advisable, particularly as the names and relationships of the emperors can be confusing.

The historical background In the fourth century Christianity became more and more favoured by the emperors, and the number of Christians grew very considerably, particularly in the cities and towns, but paganism was still strong. ‘We should therefore see the fourth century, after the death of Constantine, as a time of ferment and competition between pagans and Christians, when despite imperial support for Christianity, the final outcome was still by no means certain.’1 The conflict over removing or keeping the pagan Altar of Victory in the Senate house is an obvious example.2 Even at the end of the century senior officials were being threatened with heavy fines for practising pagan worship.3 Another factor was that the patronage of the emperors meant that the Church became involved in politics; bishops quarrelled and emperors intervened. Constantine’s search for doctrinal unity among Christians was enthusiastically followed by his sons.4 Imperial officials, on a mission in 1 2 3

4

Averil Cameron (1993b), 13; cf. Barnes (1995); Salzman (2002). Symmachus, rel. 3, in Barrow (1973); Sheridan (1966). CTh 16.10.10 and 11, February and June 391. By this time Gratian had repudiated the office of pontifex maximus, and his stance was followed by all later emperors; see Alan Cameron (1968). Drake (2000).

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346–47 to distribute funds to the Church in Africa, were seen to support the Catholics against the Donatists; violence followed, and the Donatists saw the days of persecution return. This was a legacy that St Augustine, born in 354, had in due time to cope with as bishop of Hippo. Constantine, who in AD 313 had issued what is known as the edict of Milan, legalizing the practice of Christianity, died in 337. His three sons, Constantine II, Constans and Constantius II, who succeeded him, rapidly fell to fighting; Constantine II soon died while in conflict with Constans. Thereafter Constans, in the West, and Constantius, in the East, ruled jointly from 340 to 350. In 350 Constans was overthrown, a fate which may have been linked with the cost of his wars to hold back the Germanic peoples beyond the Gallic frontier; an army officer called Magnentius declared himself his successor. Constantius was sole Augustus, in West as well as East, from 350 until 361, but he was initially preoccupied with the East, where he was trying to thwart Persian designs on Armenia and Mesopotamia. When that matter was temporarily settled, he took time to summon a church council at Sirmium in 351 – he was inclined to the Arian heresy – before coming to the West to deal with the ‘tyrant’ Magnentius, which he finally did in 353. Constantius seems to have held a purge of the Roman Senate and various senior officials, but from a distance; he did not visit the City until 357. He also called a council at Arles in 355, which brought most of the bishops – but not Liberius of Rome – into line against Athanasius, the frequently deposed bishop of Alexandria.5 Constantius had then to deal with his cousin Gallus, who had been his Caesar (or junior colleague) in the East since 351, but who now came to manifest an independence that could only be viewed as treasonable. Constantius’ new Caesar in the West, sent in 355 to defend the Gallic frontier, was Gallus’ half-brother, Julian; he was successful in crushing the Alamanni. In 357 Constantius paid a visit to Rome. During that visit he removed the Altar of Victory from the Senate house, but otherwise took no steps against official paganism.6 He was called back to the East by further Persian aggression, but Julian refused to send reinforcements from Gaul to Mesopotamia, and was proclaimed Augustus by his soldiers. When Constantius did feel able to leave the eastern frontier to face Julian, he died of a fever en route; Julian was now the sole heir of the house of Constantine, and 5

6

One of the charges against Athanasius, apart from doctrine, was that he was highly skilled in the interpretation of prophetic lots, and the omens indicated by birds, and that he had foretold future events. Liberius, quite rightly, held that Athanasius should be offered the chance to refute such charges; for this he was deposed (Amm. Marc. [hereafter cited in this chapter as AM] 15.7.6–10). Athanasius won in the end; his definition of orthodox Christianity overcame Arianism, after a century or so of debate. ‘The earlier emperors venerated our ancestral religious rites; the later did not abolish them’, as the pagan Prefect of the City later wrote, asking for the altar’s restoration (Symm. Rel. 3.3). Magic and astrology were different matters, see infra.

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the last. Two years later, in June 363, he was killed in the Persian wars, while retreating from Ctesiphon. He is principally remembered because, although brought up as a pious Christian, he apostatized, and tried to restore the traditional religion of Rome. Jovian, the next emperor, who made peace with the Persians at the price of surrendering the Roman dependencies east of the Tigris, was a Christian, and declared Christianity the official religion of the Empire. But before he could reach Constantinople to be installed as consul, he died in mysterious circumstances.7 After the very brief reign of Jovian, a new, Pannonian, dynasty appeared (which did, however, have marriage ties to the house of Constantine) when Valentinian I (364–75), an orthodox Nicene Christian, became emperor, together with his brother Valens (364–78), who was Arian. Valentinian ruled in the West, Valens in the East. Valens was killed in the disastrous defeat of the Romans by the Goths at the battle of Adrianople in 378. Valentinian’s son Gratian became joint-emperor with his father as a boy (367–83), but his brother, Valentinian II (375–92), was not raised to imperial rank until the death of his father. Theodosius I (379–95) succeeded Valens in the East; he too granted his sons imperial power, Arcadius in 383 and Honorius in 393 for the West. On his death they ruled jointly until 408 when Arcadius died and was succeeded by his young son, Theodosius II (408–50), the ruler responsible for the Theodosian Code. Fourth-century issues The fourth century has been described as an age of contradictions. The tradition of the classical period was strong; in particular the traditional education in Latin rhetoric marked out the upper ranks, even, or especially, in the eastern half of the Empire. The identification with Rome was important. ‘The normal description of the peoples of the Empire as Romani in the later third- and fourth-century writers’8 is in contrast to the barbarians at the gates, or at least the frontiers. [T]he struggle to save the Empire from the barbarians is set in the first place by every source, however meagre, and must take precedence even over the very real internal discord and oppression, from which the provincials sought relief not in nationalistic risings but in the imperial power itself, so that the crisis strengthened rather than weakened the hold of the Roman name on the Roman world.9

7 8 9

This outline is based on Hunt (1998). Sherwin-White (1973), 445. Sherwin-White (1973), 451f; also 461ff, on this aspect of St Augustine’s De civitate Dei.

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Yet the imperial response to the external threat was accompanied by novelties, such as attempts by emperors to legislate over men’s beliefs and insignificant actions, and to control their subjects’ private lives.10 The image of the law was new. The third-century governors who had executed the Christian martyrs (see chapter 5) were mostly polite, if inexorable. The hectoring tone of imperial legislation in the fourth century seems to have led to a similar tone in the practice of the courts, as we shall see. While proximity to emperors had always had its risks,11 the temper of a despot could now affect men who would normally have thought themselves outside his orbit.12 Yet, in spite of the dangers of the emperors’ attempted policy of despotic micro-management, their absence (remote in their pomp or away at the frontier) from the judicial scene opened the way for judges (normally the provincial governors) and advocates to take advantage of their positions.13 The emperor was guardian of his people, as well as a menace when he acted hastily; many laws were therefore aimed at the repression of abuses by provincial governors, as well as other officials.14 Hence one of the reasons for the importance of senatorial and curial embassies to the emperor was to tell him what was happening on the ground.15 This theme of corrupt officialdom is recurrent in the legislation of the period. Corruption was evidently becoming endemic, even before the reign of Constantine. The reasons are not entirely clear, but are presumably linked with the instability of imperial rule in the years between Severus Alexander 10

11

12

13 14

15

E.g. disputes involving a boundary strip more than 5 feet wide must be heard by the provincial governor (CTh 2.26.3, AD 331); ‘Nobody whatsoever may employ any sort of weapons without our knowledge and permission’ (CTh 15.15.1, AD 364); sacrilege could be committed inadvertently, through ignorance or negligence (CTh 16.2.25, AD 380). For example, when Tiberius’ litter got caught up in some brambles, he had the man who was supposed to be clearing his path, a senior centurion, thrown to the ground and flogged half to death (Suet. Tib. 60); Domitian put to death a pupil of Paris, the actor, for being too like his master, and threw to the dogs in the arena a man who spoke slightingly of a Thracian gladiator (Dom. 10). Comparable is Valentinian’s having a hound boy, who released his hound too soon, beaten to death (AM 29.3.3). The story is well-known (AM 28.6.17–23) of the unfortunate decurions of Lepcis in Tripoli, on an official embassy to the Emperor Valentinian, who were making true complaints about the desert barbarians; these were denied by the official investigator who should have supported them, while the provincial governor who confirmed their assertions was put to death; when their tongues were ordered to be cut out, the decurions fled into hiding, only emerging some six years later. AM 30.4.2. In 30.4.3–22 Ammianus gives his own, unfavourable, view of lawyers. Diocletian’s reforms of the imperial administration had included splitting the old provinces into several smaller ones; vicars were appointed to administer groups of provinces, known as dioceses. For example, Britain, once one province, became five, while Gaul south of the Loire became a diocese, containing seven to eleven provinces. Over the vicars there were four Praetorian Prefects for the whole empire. Not that these were new; Ameria sent an embassy to Sulla (see ch. 2). See also the role of defensores civitatis and of the episcopalia audientia: Frakes (1993–94); Manino (1984); Pergami (1995); Jaeger (1960).

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and Diocletian, with the economic problems of this period, and with a loss of moral certainty, of social cohesion.16 Perhaps there was also a change of perspective when those who were powerful within the administration – in contrast to the potentes when on their country estates – were emphatically to be seen as servants of the emperor. To illustrate the point with a few examples:17 in 319 Constantine laid down that the documentation of any case appealed was to be sent on within twenty days, failing which the office staff were liable within the next twenty days for the whole value of the case, which they were assumed to have suppressed; this value was to be assessed by a rationalis (a fiscal official), under threat of capital punishment if he failed to do this honestly.18 An extraordinarily vehement enactment of 325, addressed to all provincials, commanded them to approach the emperor with their complaints if any official had done them wrong.19 A few years later another imperial law was addressed to the provincials: The rapacious hands of the apparitors [court officials] shall immediately cease; they shall cease, I say, for if after due warning they do not cease, they shall be cut off by the sword. . . . the ears of the judge shall be open equally to the poorest as well as the rich.20 Constantine almost certainly meant these threats metaphorically, but later they were taken literally – as is shown by the interpretatio (the Visigothic commentary) to the Theodosian Code. Towards the end of the century another enactment addressed to the provincials gave them the right to resist marauding soldiers, ‘For it is better for a man to fight back at the proper time than to be avenged after his death. . . . Let no man spare a soldier who should be resisted with a weapon as a brigand.’21 A year later judges guilty of peculation were no longer just to be fined, but to be tortured and put to death.22 Senior and junior officials alike were threatened with ever severer penalties. On this last point, some penalties more than trebled within fifty years: in AD 343 a governor failing to accept a properly made appeal was liable to a fine of 10lb of gold and his office staff a fine of 15lb; in 364 the sums were 20lb and 30lb, and in 393, 30lb and 50lb.23 16 17 18 19 20

21 22 23

MacMullen (1988). The appearance of eunuchs in politics may perhaps have played a part: Hopkins (1963). See Liebs (1978); Daube (1979); Noetlichs (1981); Rosen (1990); Wacke (1978) and (1980). CTh 11.30.8, AD 319. CTh 9.1.4, AD 325; very similar is 9.27.6, AD 386. CTh 1.16.7, AD 331; cf. 10.10.2, AD 319, on informers: their delations were to be strangled in their throats and the tongue of envy cut off. This too was probably intended metaphorically. CTh 9.14.2, AD 391. CTh 9.28.1, AD 392; cf. AM 27.7.5. CTh 11.30.22, AD 343; 11.30.33, AD 364; 11.30.51, AD 393.

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Nobody can think that power, wealth and influence did not carry weight in the period of classical law, but in the fourth century the government explicitly recognized that the rule of law itself could not be taken for granted.24 But the theoretical absolutism of the imperial power was not linked to any practical means of controlling what went on in the provinces. The sons and other relatives of Constantine who ruled for most of the fourth century often appear weak, vacillating, susceptible to flattery, cruel, and also superstitious, at least according to Ammianus Marcellinus who lived under them, and who was himself a believer in portents and predictions.25 There was seemingly a general growth in belief in the supernatural. The boundary between religion and magic was far from clear. Magic could be practised by both pagans and Christians; it was ‘confessionally neutral’.26 It also had close links with science, and philosophy, particularly the Neoplatonism of Plotinus and his followers. Prayers might have the same end as charms and incantations, but the latter can (usually) be distinguished by their attempt not only to manipulate, but also to compel the divinity. Further, the practice of magic was private, in contrast to public worship, and therefore suspect in the eyes of government. It is hard to be sure what difference Christianity made, but I suspect it led its followers to accept the solid reality of unseen powers in a systematic way, unlike the worshippers of Jupiter, or even of Isis and Osiris. The acceptance of Christianity in some sense validated the reality of magic and miracles, and of demons and angels. MacMullen, looking for more objective changes, came to the conclusion that the only real change brought about by Christianity was in the sexual sphere; erotic poetry ceased to be acceptable, and harsh criminal penalties were imposed on any deviant (as contemporaries understood it) sexual behaviour.27 Admiration for celibacy was certainly a novelty; celibacy had no traditional place in either Roman or Jewish culture.28

The sources Our main source for the trials for treason and magic under Constantius and Valens is a contemporary one. Ammianus Marcellinus was born around 330, in Syria, perhaps in Antioch, of good family, probably more elevated than the curial class. He joined the protectores domestici, officers of the imperial bodyguard, probably by direct commission,29 and was soon attached to the staff of Ursicinus, the eastern magister equitum, who was then under the immediate 24 25 26 27 28 29

The emperors acknowledged that they themselves broke the laws against giving rewards to informers (CTh 10.10.15, November 380). E.g. AM 19.12.19–20; 21.1.7–14. See also Camus (1967), 200–22. Fowden (1998), 549; see also Flint (1999), Gordon (1999). MacMullen (1986b). Constantine repealed the anti-celibacy provisions of Augustus’ marriage laws (CTh 8.16.1, 320). Matthews (1989), 77–79, citing CTh 6.24.2–3 for the operation of the system; see also Barnes (1998), 59f.

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command of Gallus Caesar; it was in this capacity that Ammianus came to witness the treason trials at Antioch in 354.30 After a period of semi-disgrace in Milan following the fall of Gallus, Ursicinus, still accompanied by Ammianus, went to Gaul to deal with Silvanus, who had succeeded briefly to Magnentius.31 When Julian came to Gaul as Caesar, Ammianus must have met him, and Julian became his hero. Ammianus served in some capacity under Julian in his Persian campaigns; he returned to Antioch after Julian’s defeat and death. It is likely that Ammianus then remained some time in Antioch, because he seems to have been an eye-witness of the trials of AD 371 held there. He apparently went to live in Rome after the disastrous defeat of Adrianople in 378. Rather oddly for such an admirer of the pagan Julian – but then, Ammianus was foreign and not of senatorial rank – he does not seem to have been a friend of Symmachus, or generally of members of the pagan party in the Senate.32 It was in Rome that he wrote his Res Gestae, dealing in the surviving part (from Book XIV on) with events of which he had frequently been an eye-witness, or about which he was at least able to consult other such witnesses. He declared himself to be a man who aimed to tell the truth,33 but it seems unlikely that he was as impartial in his views of the domineeringly Christian emperors as he alleges; he certainly felt strongly in support of traditional Rome, its values and its gods. He has been described as interested in political and legal, not religious, matters, as a historian writing on cruelty, illegality and corruption, as a Roman describing half-barbarians.34 However, his avoidance, indeed marginalization, of religious issues may well be the caution of an apostate Christian.35 He also, naturally, wrote in the rhetorical style appropriate for his day, and one must make allowances for this.36 The other source for this chapter is the Theodosian Code, a collection of imperial enactments, none dating from before Constantine; it was published in 438. The compilers of the Code were ordered to collect all laws of general application, regardless of whether they were still in force,37 and to arrange 30

31 32 33 34 35 36

37

As Hunt (1998), 25, has pointed out, these trials were actually of Constantius’ own agents, investigating the loyalty of Gallus Caesar. See also AM 14.1. On agentes in rebus, curiosi, and other policing agents of the imperial administration, see, for example, Sinnigen (1959), Blum (1969), Purpura (1973). AM 15.5–6. Alan Cameron (1964); Blockley (1975), 11–12. E.g. AM 15.1.1; 26.1.1. It is true that he could even be critical of Julian, his hero, e.g. 22.10.7; 22.12.6–8. Funke (1967). Barnes (1998), 81–83. For example, he describes somebody as so disembowelled that he had no parts left to torture, and then that he was led off to execution, railing at the wickedness of the times! (AM 14.9.6). On Ammianus’ use of language, see Seager (1986). This explains the survival of, for example, CTh 9.38.11, AD 410, pardoning civil servants who had served Attalus or Stilicho. It also explains why there are inconsistencies, as we shall see, between the rulings of different emperors. See further in ch. 7.

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them in chronological order under topics, known as ‘titles’. Thus some laws were split up and parts of them are found in several contexts in different titles. The laws in this Code took for granted the juristic background later collected in the Digest, from which we have quoted much in earlier chapters, which is one reason why they are so much more concerned with administrative details and questions of enforcement. The contrast is the sharper because, while the jurists in most cases wrote simply and directly, with few flourishes, these laws were nearly all drafted in a high rhetorical style, to enhance the imperial dignity.38 This can lead to extraordinary statements, at least to our eyes. A statute laid down that a deadly plague was to carry off those who practised necromancy;39 this can only mean that the governor was to punish such persons severely, but the vagueness must have led to serious judicial anxiety as to whether this had been done satisfactorily. All the texts in the Theodosian Code must be described as ‘law’, but they need much more decoding than the Digest texts, and often more than those appearing in Justinian’s Code.40

Constantius and the trials of 359 After the death of Constans in 350, Constantius had had to cope with usurpers, several of them; his fears of treason were not necessarily irrational. The followers of the ‘tyrant’ Magnentius were undoubtedly guilty of treason.41 Furthermore, Magnentius had been a pagan, and one who permitted nocturnal sacrifices.42 Pagan sacrifices and the worship of images were declared capital offences by Constantius shortly before his visit to Rome.43 Even in the pagan Empire, nocturnal sacrifices had been problematic: Those who celebrate or arrange the celebration of impious or nocturnal sacrifices that are designed to enchant, curse or bind someone, are either crucified or sent to the beasts. Whoever performs a human sacrifice or makes propitiatory sacrifices with his blood, or pollutes a shrine or temple, is to be sent to the beasts or, if of the honestiores, be decapitated. It is agreed that those complicit in magic arts are to be punished with the aggravated death penalty, that is, sent to the beasts or crucified. But magicians (magi) themselves are to be burned alive.44 38 39 40 41 42 43 44

See Honore´ (1986); Harries (1988); Robinson (2000); Matthews (2000). CTh 9.16.5, 357. See Matthews (2000); see also ch. 7. AM 14.5; so were those of Silvanus, Magnentius’ perhaps reluctant successor. CTh 16.10.5, 353. CTh 16.10.6, 356. PS 5.23.15–17. The Sententiae of Paul may have been revised under Diocletian; their confirmation along with the other works of Paul by Constantine (CTh 1.4.2, 327) argues strongly for their belonging essentially to the late classical period.

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There could, of course, be proper nocturnal sacrifices (sollemnibus redditis sacrificiis per noctem), such as those necessary when a corpse must be transferred from a permanent burial-site and interred elsewhere because of river floods or other natural threat, but they were rare.45 Constantius was also fearful of magic and divination. For if anyone consulted a skilled soothsayer about the squeaking of a shrew-mouse, or a meeting with a weasel, or some similar portent, or used some old-wives’ charm to relieve pain, he was indicted, he knew not by whom, dragged into court, and suffered death as the penalty.46 Yet Constantine, Constantius’ father, had laid down that the courts were to take care that guilt was proved. If any person is about to pronounce sentence, he shall maintain such moderation that he shall not pronounce a capital sentence or a severe sentence against any person until such a person has been convicted of the crime of adultery, homicide or magic, either by his own confession or, at least, by the testimony of all witnesses who have been subjected to torture or to questioning, when such testimony is concordant and in agreement, pointing to the same end of the matter. Thus the accused shall be so revealed as to the crime charged that even he himself can scarcely deny the crime which he committed.47 The witch-hunt conducted in the Orient by one Paul, an official known as the Diabolical, or ‘the chain’, in AD 359 illustrates the new imperial attitudes. Ammianus tells us the story. There was a town in Egypt, called Abydum, where there was a well-known oracle. Some came to consult the god there in person, others sent in written petitions or requests, which were often filed. Some of these documents were, maliciously, sent to the emperor. Constantius was both suspicious and petty (suspicax et minutus) – also cruel and superstitious – and he sent Paul to the East with discretionary powers to investigate and punish; a similar commission was given to Modestus, then comes per Orientem.48 Both noble and obscure persons were under suspicion; some were put in chains, others merely wasted away in prison.49 45 46 47

48 49

PS 1.21.1. AM 16.8.2. CTh 9.40.1, 314; compare Ammianus’ comment: ‘Nobody easily recalls the acquittal of anyone in the time of Constantius when an accusation against him had even been whispered’ (AM, 14.5.9). AM 19.12.1–6. CTh 9.16.4–6 probably fit into this particular context, Barb (1963), 109. Contrast Trajan’s rejection of anonymous denunciations, Pliny, Ep. 10.97. AM 19.12.7–8. Note the contrast between fetters and simple confinement, which might mean merely house arrest.

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Ammianus gives an impression of dozens of accused, at least, but we are told only four names. Simplicius, son of a former Praetorian Prefect and consul, was indicted because he was alleged to have asked the oracle about gaining imperial power; a letter from the emperor ordered his torture, but somehow he was merely exiled to a designated place, and with a whole skin.50 Parnasius, ex-prefect of Egypt, was also tried on a capital charge, unspecified, and also sent into exile. Andronicus, a scholar and poet, was acquitted; Demetrius, a philosopher, was released after torture. Ammianus tells us that others died under torture, while others still were condemned and their property confiscated.51 Trivial grounds, he says, sufficed. If anyone wore an amulet against the quartan ague or other malady, or had passed by a grave of an evening, ill-wishers held this as a sign that he was a dealer in poisons, or someone gathering the horrors of the tombs and the empty vanities of the ghosts wandering there, in order to conduct sorcery – as Horace’s witch Canidia snuffled round burial places52 – and he was condemned to death.53 It is hard to judge how serious the affair was, or how remote from due process. Ammianus admits that the safety of the prince was a reasonable concern, necessary for social stability. It was for this reason, he continues, that the ‘Cornelian laws’, by which he presumably meant the lex Iulia maiestatis, exempted nobody, of whatever status, from examination under torture in questions of treason.54 This was, of course, not an accurate description of either the lex Cornelia or the lex Iulia, but it was valid for the law of his time.55 Torture of free persons had already become common before the end of the third century, as we saw in the previous chapter; in the fourth century it was more and more readily extended to include even the higher ranks. The position of decurions, the ‘gentry’ of the Roman world, provides a measure for the growth of savagery. Decurions, as honestiores, had been an exempt class, except when there were charges of treason or magic. Even when decurions were debtors to the fisc, whether on their own account or as being responsible for the collection of taxes, they could be pursued in nonviolent ways: ‘severity has many means which it may take to enforce the discipline of public office, so that it may abstain from such bloody ones’. But this law went on to state that, while all decurions were exempt from torture with fidiculae (the rack), those who were not of the decemprimi56 could be afflicted by ‘beatings with leaden scourges, which we do not approve 50 51 52 53 54 55 56

He seems to have fared better than Libo, mentioned in ch. 3. AM 19.12.9–13. Horace, Ep. 5.17; Sat. 1.8. AM 19.12.14. AM 19.12.17. CTh 9.5.1, Constantine; 9.35.1, 369. A Republican term for the ten senior members of a town council, apparently revived in the Later Empire; cf. CTh 9.35.6, 399.

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when inflicted upon the bodies of freeborn persons [sic]’, but ‘moderation in the use of this punishment shall be exercised by the judge’.57 That Valentinian II, or his officials, could draft a law in such terms is breathtaking.

The prohibitions on magic under Constantine and his sons Constantine and his sons are remarkable, although not so extraordinary in their time, for their fear of magic and astrology. Constantine had forbidden soothsayers (haruspices) to visit the homes of other men, even old friends, on pain of being burned alive, while the friend was to be exiled with confiscation of property. Accusation of such a crime was not to be counted as delation, by now so much restricted that it was normally itself a crime. Public performance of pagan rites was not, however, penalized, so it was the secrecy, the happenings behind closed doors, with which the emperor was concerned.58 He seems to have recognized the need to keep the peasants reassured: The science of those men who are equipped with magic arts and who are revealed to have worked against the safety of men, or to have turned virtuous minds to lust, shall be punished and deservedly avenged by the most severe laws. But remedies sought for human bodies shall not be involved in criminal accusation, nor the assistance that is innocently employed in rural districts in order that rains may not be feared for the ripe grape harvests, or that the harvests may not be shattered by the stones of ruinous hail, since by such devices no person’s safety or reputation is injured, but by their action they bring it about that divine gifts and the labours of men are not destroyed.59 Astrologers, however, not only understood the stars but could predict the future from them; when this involved the future of the imperial house, the threat of treason could not be far away.60 Astrologers, soothsayers, sorcerers 57

58 59

60

CTh 9.35.2, 376. The cruellest illogicality, however, is probably in Constantine’s decree that coloni who meditate flight must be put in chains and reduced to a servile condition, ‘so that they may be compelled to perform the duties which befit free men’ (CTh 5.17.1, 332). CTh 9.16.1, 319/320; 9.16.2, 319, added priests to the prohibited persons: ‘But we do not prohibit the ceremonies of a bygone perversion to be conducted openly’. CTh 9.16.3, 317/19. Cf. 16.10.1, 321, where soothsayers were to be consulted if lightning struck the imperial palace or other public building, but there were to be no private sacrifices. Coll. 15.2.1–6, Ulpian 7 de off. proconsulis, but, for imperial interest in astrology, see also Tac. Ann. 6.20–1; SHA, Hadrian 16.7.

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and magicians had been regularly repressed throughout the Principate;61 in the fourth century they came to be refused the right of appeal, along with murderers and adulterers.62 Comparably, the grounds on which a woman could divorce her husband without penalty – a change from the classical law of free divorce brought about in the Christian Empire – were if he were proven to be a homicide, a sorcerer (medicamentarius) or a destroyer of tombs, just as he could only divorce her without penalty if she were proven an adulteress, a sorceress (medicamentaria) or a procuress.63 Constantius’ language was stronger than his father’s: Let none consult a soothsayer (haruspex) or astrologer (mathematicus), or diviner (hariolus). Let the wicked doctrines of augurs and seers (augurum et vatum) fall silent. Let not Chaldeans, magicians (magi) and others, whom the mob call malefici because of the depravity of their offences, undertake anything of this sort. Let curiosity for the future be perpetually silenced for all men, for the sword will carry them off otherwise.64 And in the same year – AD 357 – he issued another edict to the people, which has already been mentioned: Many have dared to disturb the elements with magic arts and have not hesitated to shake the lives of the innocent; they dare to agitate with summoning hands the spirits of the dead so that someone may destroy his enemies through evil arts. May a deadly plague carry off such men.65 The following year the emperor was making it clear that although the bodies of the upper classes were normally exempt from torture, this did not apply to practitioners of magic arts; even those among the imperial retinue would not escape the bloody torments of the torture horse or the iron claws.66 Those condemned for high treason or magic suffered total confiscation of property, leaving nothing even to the close family; this had been lifted for other capital crimes in 356 but was reintroduced in 358.67 61 62 63 64

65 66 67

As discussed briefly at the start of ch. 5. CTh 11.36.1, 314/315; 11.36.7, 344/348. CTh 3.16.1, 331; repeated in Ed. Theo. 54. CTh 9.16.4, AD 357; demons are introduced in the interpretation: ‘Quicumque pro curiositate futurorum vel invocatorem daemonum vel divinos quos hariolos appellant vel haruspicem qui auguria colligit consuluerit, capite punietur.’ CTh 9.16.5, 357. CTh 9.16.6, 358; the ruling covered magi, malefici, haruspices, harioli, augures, mathematici, the interpreters of dreams, and all similar persons. CTh 9.42.2 and 4, Constantius; total confiscation was limited to conviction for treason in 9.42.6, 364.

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(Interestingly, Constantius saw the violation of tombs primarily as a way of dishonestly acquiring building materials, although the practice did both despoil the dead and contaminate the living.68 It was Julian who stressed the sanctity of tombs, and the pollution involved in holding funerals during the daytime.69 Later legislation in this area was primarily directed against those, including the clergy, hunting for or trafficking in relics of the martyrs.70) Astrology as science Under Valentinian and Valens paganism was partially tolerated. What bothered the emperors was the specter of the occult. Indeed, the fear of magic more broadly, and of its near relative astrology, haunted both emperors in the extreme. . . . It was sorcery and astrology then, the mysterious and private side of ancient religion, that troubled the emperors.71 Thus we find that anyone who was subsequently detected at night performing nefarious prayers, magic doings, or dire sacrifices was to be visited with suitable – and clearly horrible – punishment.72 Then there was a more formal prohibition: The teaching of astrology shall cease (cesset mathematicorum tractatus). For if any person, either in public or in private, during the day or during the night, should be apprehended while engaged in this forbidden charlatanry, each of the two persons involved shall be stricken with a capital sentence. For the crime of learning forbidden doctrines is not unlike that of teaching them.73 Yet astrology was viewed as a science, an academic discipline, and there were textbooks, and academic debates, so this law could be seen, especially by the pagan party, as anti-intellectual, like – and linked with – the persecution of philosophers.74 68 69 70 71 72

73 74

CTh 9.17.4, 357/356; cf. 9.17.1–3. CTh 9.17.5, 363. CTh 9.17.6 and 7, 381 and 386. Lenski (2002), 218–19. CTh 9.16.7, 364; ‘Ne quis deinceps nocturnis temporibus aut nefarias preces aut magicos apparatus aut sacrificia funesta celebrare conetur.’ The interpretation to CTh saw demons as the objects of the sacrifices or incantations. CTh 9.16.8, 370/373. Compare Diocletian: ‘Artem geometriae discere atque exercere publice intersit, ars autem mathematica damnabilis interdicta est’ (CJ 9.18.2, AD 294). We have one complete work, a textbook, the Mathesis of Firmicus Maternus, of which there is an English translation: Bram (1975). See also Cramer (1954); Gage (1968); LeBoeffle (1989); Potter (1994).

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Astrologers, or at least the more reputable among them, were often genuine astronomers; it was their ability to calculate the movements of the planets and the constellations that gave them their other title of mathematici – or Chaldaei, since Chaldaea seems to be where astronomy was first practised. Firmicus Maternus (who flourished in the middle third of the fourth century) had started off as a lawyer, but: ‘Those who like myself practise in the courts, particularly for the defence, acquire ill-will from our constantly opposing those who delight in mischief, or who exploit strangers from motives of greed, or who terrorize others with the threat of the law.’75 So he abandoned the law for astrology, which he took very seriously as a profession. He warned the young astrologer never to give responses to anyone asking about the condition of the state or the life of the emperor. It was not right to speak about the condition of the republic, and it was wicked to speak about the destiny of the emperor. Besides, he added carefully, it was pointless, because the emperor was the one man not subject to the stars in their courses, as he was a god. If asked such a question, the astrologer should refuse an answer and warn the questioner to change his mind. But the astrologer should not report such a question to the authorities, because it was not fitting for one who was in some sense a priest to bring about a death.76 Firmicus Maternus’ instructions to an aspiring astrologer used the same general self-admiring approach as those of Vitruvius to architects or Quintilian to orators. An astrologer should be a model of excellence. ‘He who daily speaks about the gods or with the gods must shape his mind to approach the likeness of divinity.’ Study hard, be easy of access. ‘Be modest, upright, sober, eat little, be content with few goods.’ Speak out publicly with a clear voice.77 Have a wife, a home and many friends; in other words, do not live life as a vagabond. Keep away from quarrels, never give false witness, demand no interest. Never attend nocturnal sacrifices, nor even the spectacles. Be chaste. Learn your books, but use your intelligence to go further.78 But it is not cheerful stuff, and not only because of Firmicus’ own determinism; there are more bad than good things in the fates. For example, from his description of those born under (that is, natives of) Mars: But I myself know, as I have often discovered in computing charts, that many who have Mars on the ascendant have been sent into exile, but are now good and diligent government officials; when the waxing Moon is in opposition and Mars is in the fifth house by day, 75 76 77 78

FM, FM, FM, FM,

Math. Math. Math. Math.

4.pr-1. 5.30.4–7. 5.30.1–3. 5.30.8–15; there is similar advice in 2.30.

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the natives will suffer condemnation and prison; if the Sun is in opposition to Mars, in the seventh house, the native will be burned alive.79 Jupiter, in aspect to Mars in the third house, indicates a ruling position with very great powers and honour; the native will be superior to all of his rank. If Mars in this house is in his own house, terms or exaltations, and Jupiter is in aspect, this makes governors of frontier provinces, generals, vicars, praetorian prefects, and other holders of imperium.80 The Sun is not quite as dangerous as Mars, but also powerful. Venus on the ascendant by day makes the natives oversexed, unchaste, of ill repute. They will be linen weavers, embroiderers, or artists in paints, dyers, inn or tavern keepers. Saturn in aspect to Venus in any way will make the natives effeminate, homosexuals, or engaged in sedentary activities.81 He has personal knowledge that Mercury has often produced jugglers.82 By day [as opposed to a nocturnal chart] the waning Moon (moving from Venus towards Saturn) makes the natives weak and afflicted with malignant humours. They will have laborious activities around water: they are forced to draw water from deep wells, or ordered to clean sewers or wells; or they will be gardeners, but poor; sailors or water carriers; fishermen or divers.83

Valentinian I and the trials at Rome for magic and adultery Perhaps Valentinian was convinced by all this specious learning, for a little later he relaxed the ban on another form of foretelling the future. In a communication to the Senate, he wrote:

79 80

81 82 83

FM, Math. 3.4.4; 3.4.15; 3.4.21. FM, Math. 3.4.8: ‘faciet praesides riparum, duces, vicarios, praefectos praetorio et quibus frequenter committatur imperium.’ I am grateful to John Dillon for suggesting that praesides riparum refers to provincial governors along the Rhine and Danube. FM, Math. 3.6.4. FM, Math. 3.7.15. FM, Math. 4.13.6. There does not seem to be any reference to forced labour here: ‘aut enim ex altis puteis cotidiano opere aquam levare coguntur, [aut] iubentur adsidue lacunas cluacasque [sic] purgare.’

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I judge that divination (haruspicina) has no connection with cases of magic, and I do not consider this superstition, or any other that was allowed by the men of old, to be a kind of crime. . . . We do not condemn divination, but we do forbid it to be practised harmfully.84 This may have referred to the pursuits of the rich and idle, since it is likely to have been written in the context of the series of moral corruption trials among the senatorial class in Rome. Probably in 369,85 Maximinus, at that stage prefect of the grain supply, and a fellow-Pannonian of the emperor’s, was made judge in the case of a Roman senator named Chilo and his wife, who alleged that their lives were at risk from sorcery (venenis). The Urban Prefect, Olybrius, pleaded ill-health as his excuse not to examine this and related matters; in fact, his brother Alypius was among those subsequently accused. Maximinus investigated and sent a report to the emperor that serious crimes were afoot; in consequence he was made vicarius of Rome, and ordered to treat cases of magic and adultery as treason.86 This, of course, made even senators subject to torture. (One problem in the administration of the criminal law, and the law of treason in particular, was the lack of juridical definition. The only enactment preserved in the Theodosian title on treason is that of Constantine, laying down that, since the accused in a treason trial was liable to torture no matter what his rank, the same must apply to an accuser who did not prove his case, and to any accomplice. Further, slaves or freedmen who attempted to accuse their owners or patrons were at once to be crucified, unheard.87) A Senate delegation went to the emperor, and Valentinian denied that he had wanted senators tortured, and rescinded the law.88 Indeed, Valentinian had a year or so before, perhaps when immorality and superstition among the upper ranks first became a scandal needing investigation, told the Prefect of the City that the emperor must be consulted when punishment of exceeding severity was due to be inflicted on a member of the senatorial order because of the gravity of his crime.89 At what must have been quite a late stage in the investigation, the emperor wrote that, although strict inquiry into the practice of magic by 84 85 86

87 88 89

CTh 9.16.9, May 371. See Barnes (1998), 241–46, on the timing of events. AM 28.1.8–11. Earlier instances of magic and poisoning among the Roman upper classes are known from 364, including a senator apprenticing his slave to a teacher of evil arts (AM, 26.3.1–4). The vicarius urbis Romae was not the Urban Prefect’s deputy, but reported to the Praetorian Prefect responsible for Italy; cf. Sinnigen (1959). CTh 9.5.1, AD 314; confirmed in 9.35.1, July, AD 369, when Olybrius was still Urban Prefect. AM 28.1.24–25. CTh 9.40.10, 367; cf. Matthews (1989), 210. See 9.40.13, 382/390, for a later attempt to allow the emperor time to change his mind.

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members of the senatorial order was to be made through the Urban Prefecture, from which office Maximinus operated (at least in some matters),90 where the business could not be satisfactorily completed the persons involved and all the records were to be passed on to the emperor himself.91 Nevertheless, in a series of trials over several years, while we do hear of harsh punishment for some, we do not hear of many persons of rank accused, let alone condemned.92 A senator was beheaded for adultery, and two women of high birth put to death for the same offence; in their case the executioner was subsequently burned alive for leading one of them to her execution stripped of her clothes.93 Some senators were put to death for sorcery, but no evidence of sedition or conspiracy is reported;94 then others were executed for adultery and magic practices.95 ‘Treason’ seems to have been defined here as that which was contrary to the discipline of the times, which included the ‘fierce puritanism’ that made adultery a capital offence, even deserving of the penalty of the sack.96 Ammianus’ complaint about Maximinus’ purge of the morals of the Roman upper ranks seems to be grounded in Maximinus’ acceptance of any report as though it were a formal accusation,97 and his imposition of punishment which was out of proportion both to senatorial dignity and to the offences.98 Maximinus was a Pannonian (like the emperors), next door to a barbarian; this was the gravamen of the complaint. Ammianus does not assert the innocence of those accused, and it is possible, if not very likely, that there was a real plot.99 There were 90 91 92 93 94 95 96

97 98

99

Sinnigen (1957), 112. CTh 9.16.10, December 371. It is not clear how the Urban Prefect, by now Ampelius, and Maximinus were intended to cooperate. Hamblenne (1980), who gives the fullest details; Lenski (2002), 221–22. AM 28.1.16 and 28. AM 28.1.26 and 29; cf. CTh 9.16.9, 371. And some were only exiled (AM 28.1.16; 28.1.17–23). AM 28.1.45 and 50 and 54–56. CTh 11.36.4, 339; the adulterers were to be sewn into the sack, but then burned alive, not drowned. The English phrase is Matthews (1989), 257. Cf. the stern treatment of adulterers at Vercellae, recorded in Jerome, Ep. 1, of c. 374. At much the same time, Basil, Ep. 46, offering the path of repentance to a fallen virgin, remarks that adulterers are put to death if there are two or three witnesses, which, of course, would be seldom. Cf. the story of Susanna and the elders (Daniel 13). AM 28.1.36–37, even when coming from a ‘sting’. Some distinction was made between honestiores and humiliores; most of the senators seem to have been beheaded, whereas at least one soosthsayer was burned, and a couple of wrestlers beaten to death (AM 28.1.8 and 29). Thompson (1947), 102–07, thinks this whole episode one where to have told the full truth would have been dangerous. He cites Jerome: ‘Maximinus, praefectus annonae, maleficos ab imperatore investigare iussus, plurimos Romae nobilium occidit’ (Chron. a. 375). He suggests that the elder Theodosius may have been properly executed for treason linked with these events at Rome, and that, since Theodosius I was the reigning emperor, Maximinus had to be blackened. Hamblenne (1980) thinks this theory ridiculous.

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acquittals, however, and surely less injustice than Ammianus’ rhetoric would imply. It was probably in the context of these trials that Valentinian issued a letter to the Senate: A pardon, conscript fathers, brands those persons whom it frees; it does not take away the infamy of crime but grants remission of punishment as a favour. In the case of one or two accused persons, this may be the right course. He who pardons the Senate condemns the Senate.100 Valentinian was here exercising very neatly a moral superiority over a group whose political importance no longer matched their social standing. Formalities in the criminal procedure of the fourth century Laws regulating accusation continued to be issued. Constantine had laid down that no oral charges were to be accepted, but only written ones, in accordance with ancient practice.101 He had also cut back on the old freedom to prosecute, forbidding delations and punishing delators.102 He had restricted prosecutions for adultery to the husband, father or brothers of the woman concerned, so that marriages should not be disturbed.103 Indeed, from his time, prosecution ex officio, that is by the competent official, normally acting on a formal complaint, but sometimes on rumour, was becoming nothing unusual, although prosecution by the victim seems to have remained common.104 But prosecution ex officio was not to mean that persons should be imprisoned by the examining magistrate before a formal charge had been made.105 Maximinus himself, as corrector of Tuscany, had received a reminder that formal written accusations were required.106 The accuser must bind himself to pursue a truthful indictment,107 and persons under accusation themselves were not allowed to prosecute others, so as to 100

101 102 103 104 105 106 107

CTh 9.38.5, 371: ‘Indulgentia quos liberat notat, nec infamiam criminis tollit, sed poenae gratiam facit. In uno hoc aut in duobus reis ratum sit; qui indulgentiam senatui dat, damnat senatum.’ Somebody found guilty, but subsequently proved innocent, was technically restitutus, restored to his former status, not ‘pardoned’. Cf. Seneca, clem. 2.7, on the distinction between pardon, the remission of a deserved punishment, and mercy, the means to natural justice. CTh 9.1.5, 320; D 48.2.3.2, Paul; 48.2.7pr-1, Ulpian. CTh 10.10.1 and 2, 313 and 319; Pietrini (1996). This was not the first attempt: FIRA i 94, pp. 458–61; Giglio (2002); Barnes (1976); Corcoran (1993). CTh 9.7.2, 326. As indicated by the opening sentences of CTh 9.3.1, 320. CTh 6.29.1, 355; 9.3.4, 365. The regulation of prisons in this period was described in ch.5. CTh 9.1.8, 366; cf. AM 28.1.6. Repeated to the Prefect of the City (CTh 9.1.9, 366). CTh 9.1.11, 373/368.

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prevent counter-accusations, or even the threatening of the judge with prosecution.108 Julian had ordered that the record of the charge must be issued to the accused, without his having to ask, and that the accuser should not be able to obtain postponements.109 There was further legislation on delators from Constantius, Valentinian and later emperors.110 The accuser was required to bind himself against calumny before an accusation took effect; further, people could not use mandataries to make their accusations for them, but must be present in court, even if they were potentes, that is of the powerful landowning class.111 A significant difference between classical law and that of the fourth century was that in earlier times the accuser was only liable for calumny if his charge was malicious or rash, but in the later period, partly because of the ready application of torture, the accuser who could not make good his charge was liable to whatever had befallen the accused.112 Also, with private accusation becoming less common, the other procedural offences of praevaricatio and tergiversatio had largely disappeared, although the terms might be used of corrupt fiscal officials compromising or abandoning suits for debts to the treasury.113 Yet another difference was the development of the use of amnesty, to cancel current accusations, and of pardon, to release petty criminals.114 At least in civil cases, the burden of proof was firmly on the pursuer: ‘Not only the logic of law but also equity itself justifies the requirement that the person suing for the money must bring proofs with him and must convict the debtor.’115 Witnesses were always on oath, and those of higher status deserved greater credence. The rule that one witness was insufficient for full proof became formalized.116 Written instruments had great force, although they could be challenged.117 Even in cases of magic it was legally possible to demand proof, or at least confession, which was considered the best of proofs, despite its known unreliability when extracted under torture.118 Evidence of magic has always been difficult to obtain, although proofs of attempted magic are another matter. The picture given by the constitutions 108 109 110 111 112 113 114 115 116 117 118

CTh 9.1.12, 374/375. Cf. 9.1.19.1, 423; also D 48.2.4, Ulpian. CTh 9.1.6, 362–63. CTh 10.10.4, 338; 10.10.10, 365. The main target seems to be delators to the fisc. CTh 9.1.14, 383; 9.1.15, 385, and 17, 390; 9.1.19pr, 423. See also AM on Petronius Probus, 27.11.1; 30.5.4–10; Wacke (1978). Cf. CTh 9.37.2 and 4, 369 and 409; see the treatment of procedural offences in Ch. 4. E.g. CTh 10.15.3, 340. See Waldstein (1964); Robinson (1999). CTh 2.28.1, 422. In cases concerning right to property, the burden might be switched to the defender (CTh 11.39.1, 325). CTh 11.39.3, 334; on the latter point, see Metro (2001). CTh 11.39.5, 362. See chs 2 and 5.

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in the Theodosian Code of this period is still one of due process struggling to be observed.

The trials at Antioch in 371–72 The origins The events at Rome in 369–71 were the western background to the more devastating trials of AD 371–72 at Antioch, of which Ammianus seems to have been an eye-witness, when men of the senatorial order, and therefore possible aspirants to the throne, were accused of practising magic, treasonable magic. The Emperor Valens was staying in Antioch in the autumn of AD 371, after concluding an armistice with the Persians, the external enemy, when he almost fell victim to domestic plots; he had already escaped various attacks.119 The story is somewhat complex. A certain Procopius, who appears to have been acting simply as a delator,120 charged two minor officials with having made an attempt on the life of their superior, Fortunatianus, count of the privy purse (comes rei privatae), because they had been ordered to restore monies which they had misappropriated. Once convinced that magic was involved in the attempt, Fortunatianus referred the matter to the court of the Praetorian Prefect, who was the same Modestus as had presided over the trials of 359. Fortunatianus also handed over as possible witnesses one Palladius, who had allegedly been hired as a poisoner by the pair, and an interpreter of horoscopes called Heliodorus. When his interrogation became severe, Palladius claimed that, if they would only let him, he could speak of much more serious matters, plots far advanced, which threatened the very state.121 On being told to speak out, he said that Fidustius, a former provincial governor, and one Pergamius, a court official, had secretly learned, by the detestable arts of divination, the name of the man who would succeed Valens as emperor. Fidustius happened to be in the neighbourhood, and he was at once arrested, brought in secretly, and confronted with Palladius. He did not attempt to deny the plot, but disclosed its details. He, together with Hilarius, a former member of the palatine guard, and Patricius, who were both skilled in divination, had sought to learn about the next ruler. The predictions produced by secret arts had named the coming of an excellent emperor, and also a grievous end for those 119 120 121

AM 29.1.4 and 15–16. Despite Constantine’s prohibitions, renewed by Valentinian and Valens in 365 (CTh 10.10.10). Ulpian would not have been so sympathetic – D 48.9.6pr: ‘For who doubts that they have recourse to these expedients for the sake of escaping punishment, and that they deserve heavier punishment for having left unsaid so long that which they claim to have to say concerning the emperor’s well-being? For they ought not to have been silent for so long over so important a matter.’

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inquiring. They understood the man indicated to be Theodorus, a fairly senior civil servant, a man of a noble Gallic family, well-educated, eminent for all the virtues. Fidustius, near to death from the tortures he had suffered, added that Theodorus had learned of all these predictions from him through the intermediary of Euserius, recently ruler pro praefectis of Asia. Euserius too was arrested and imprisoned.122 When the reports of these interrogations were read to the emperor, as was the custom, Valens was enraged, and his rage was encouraged by Modestus.123 Orders were given that Theodorus should at once be brought back to Antioch from Constantinople, where he had gone on private business. In the meanwhile, arising from various preliminary inquiries which were being held both day and night (ex praeiudiciis variis quae diebus exercebantur et noctibus), many men of rank and birth were being dragged from widely separated localities. Not only were the public prisons full to overflowing, but the private houses of those who might suitably have custody of detainees of the better sort124 were insufficient for the crowds of prisoners, many of them in chains, all in dread for themselves and their families. Then Theodorus himself arrived, prepared for death and in mourning; he was hidden away in a remote part of the district.125 Yet it was Valentinian, and Valens in theory as co-emperor, who were responsible for a law requiring the proper forms of written accusation, with statement of the charge brought, since noone should be allowed to bring terror to another with the rumbling of a criminal affair.126 Ammianus does not deny that Valens’ life was indeed in danger, from simpler attempts at assassination as well as from conspiracies by aspirants to the throne. There clearly was a palace conspiracy, even if the great crowds of conspirators reported by Ammianus must be an exaggeration. Valens was quite entitled to protect himself from treason. What was unforgivable was that his despotic rage led him to prosecute guilty and innocent alike, under the same law, making no distinction as to what they deserved. While there was still doubt concerning the charge, the emperor had no doubts about the penalty, and men were condemned to death before they even knew they were under suspicion. This stubborn purpose grew stronger, stirred on by his own greed, and that of his courtiers, for the estates of the condemned; any mention of clemency was rejected as stupidity, yet the semblance of mercy was claimed, for sparing some lives. Unfortunately Valens was both exposed 122 123

124 125 126

AM 29.1.5–10. Modestus was the man who advised the emperor not to bother with judging civil causes, and thus opened the way to the greed and wickedness of judges and advocates (AM 30.4.2; cf. Symmachus, rel. 38; CTh 9.27.5 and 6, 383 and 386). House arrest, in their own home or in the house of a senior official, remained common for upper-class suspects. AM 29.1.10–14. CTh 9.1.8, AD 366: ‘Non sinendum est ut quisque negotii criminalis strepitu terreatur’.

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to schemers and prone to blind anger, and too proud to doubt that what was whispered to him was not true and certain.127 This is the kind of thing that had been said before about emperors, and although it may be a commonplace, it may also be true. Ammianus was morally outraged by the savagery and corruption of absolute power. But it does tell us that not all caught up in the conspiracy were executed; the bloodbath was somewhat exaggerated. What one can be sure of is that some people took the opportunity to pay off old scores.128 Theodorus on trial The Praetorian Prefect and the other investigators resumed the interrogations, presumably under Valens’ directions. Ammianus’ language about the presence of the instruments of torture and the, obviously deliberate, terrifying yells of the interrogators, may even mean that he was himself present, as judge or witness.129 Pergamius, the former court official, appeared; he did not wait to be questioned by the judges but shouted out an endless flood of names of those complicit in the plot, men from all over the Roman world. He was rapidly executed, as were others after him in flocks; then they came to Theodorus.130 The judges of the court now in session might call attention to the provisions of the laws, but they acted in accordance with the wishes of their ruler, and terror gripped everyone, as a result of Valens’ ragings. Patricius and Hilarius, the soothsayers and Fidustius’ tools, were brought in and ordered to give a coherent account of what had happened. Their accounts were not identical to start with, but various tortures cured that. Hilarius explained that they had constructed a tripod on the model of the one at Delphi, consecrated it by secret incantations, and after much practice at length made it function – roughly speaking, like a cross between tableskittles and a ouija board. In a room in a purified house, a plate of various metals was set on the tripod, with the letters of the (Greek) alphabet engraved individually around its rim with spaces between them. Above this was suspended a ring on a fine thread; this was set moving by a man dressed all in linen, reciting the correct formulas; it indicated various letters. What it spelled out was ‘Theod’, whereat everybody agreed that this must mean Theodorus, and nothing further was done.131 Theodorus, Hilarius added, had known nothing of all this. The pair were then asked if their own fates had not been foretold, to which they replied that they had been, but so too 127 128 129 130 131

AM 29.1.18–22. Informers were clearly still being rewarded (cf. CTh 10.10.11, AD 369; and 12, AD 380, January). As they had in the days of Sulla (see ch. 2). AM 29.1.23–24. AM 29.1.25. The incantations must have been performed properly; Theodosius was to be the next emperor.

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were the Furies threatening the emperor himself; verses of ill omen were then quoted. (Ammianus adds elsewhere132 that this prophecy much disturbed the emperor, and was indeed applicable to his death in AD 378.) Then the two, shattered by the torture hooks, were removed, senseless.133 To further the inquiry, a group of distinguished persons was led in, allegedly the leaders in the affair. Since, as Ammianus says, each had regard for nobody but himself and each tried to shift his downfall onto another, Theodorus was given permission to speak. He first prostrated himself in a prayer for pardon, but not surprisingly he was forced to reply to the point. He said he had learned of the affair from Euserius, who had prevented him informing the emperor, as he had several times attempted, on the grounds that no unlawful ambition but some inevitable working of fate would bring him to the throne. Euserius, under bloody torture, made the same confession. But the court refuted Theodorus’ claims to innocence with letters of his own,134 written in oblique terms to Hilarius, a former member of the palatine guard as well as a soothsayer, in which, with hopes strengthened by the soothsayers, he sought to know the right time to achieve his desire. Theodorus and Euserius were removed under restraint. Eutropius, then governing Asia with proconsular imperium, was accused of being an accomplice in the plot, but he escaped unharmed, being cleared by the philosopher Pasiphilus who, although cruelly tortured to pervert justice with a lie, could not be turned from the truth. The philosopher Simonides was also accused of having heard of the affair from Fidustius; he saw that the trial depended not on truth but on the nod of one man, and he said that he had heard of the predictions but that he had kept silent as to them.135 At this stage of the inquiries, the emperor gave his response to the judges. The court may have formally been his, rather than the Praetorian Prefect’s, whose jurisdiction was always technically vice sacra. In one considered sentence, he ordered all to be put to death, and so they were all led away and strangled (iugulati), except for Simonides, who was ordered to be burned alive. It was clearly the strangling which aroused popular shock and horror; it was by this period a death which did not respect the rank of the condemned.136 In the ensuing days many others were interrogated. Some were put to death, even while inquiry was being made as to whether they deserved punishment. It was like a slaughterhouse.137 In the aftermath of 132 133 134 135 136

137

AM 31.14.8. AM 29.1.27–33. We do not know under what powers the court obtained these letters; earlier the court could certainly demand access to the financial accounts of an accused. AM 29.1.34–37. Note the involvement of philosophers with divination and politics. ‘This Republican form of execution (strangulatus in carcere) was rare in imperial times, when the tendency was to humanize the execution of citizens.’ Sherwin-White (1966), 165. He must be thinking only of the early Principate. ‘ut pecudum ubique trucidatio cernebatur’ (AM 29.1.38–40; cf. Tac. Ann. 6.19).

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the inquiries, the philosopher Maximus was beheaded – an honourable death, at least – in his home town of Ephesus, since he too had heard of the predictions although he had not talked of anything secret. Diogenes, a former governor of Bithynia, was also executed, probably for the sake of his estates. Alypius, former vicar of Britain, although long retired, was accused together with his son, Hierocles, of magic practices, on the sole evidence of a (different) Diogenes, a man of humble origin. The accuser was tortured and burned, but Alypius was sent into exile, after confiscation of his property;138 Hierocles escaped with his life, after popular clamour.139 Dangerous writings The judges, perhaps to provide a distraction from the unpopularity of the killings, ordered the burning of innumerable books as unlawful, and huge heaps of volumes were pulled out from men’s houses, although most of them dealt with the liberal arts, or even the law.140 It has been held that ‘the trials virtually wiped out the remaining pagan philosophers of the east’, because of the loss of so many of their libraries.141 However, it has also been remarked that the Neo-Platonist Academy at Athens entered one of its most brilliant phases in the fifth and early sixth century, and pagan philosophers travelled in the sixth century on religious pilgrimages to sacred spots in Syria and wrote important and lasting commentaries on Aristotle.142 Perhaps it just took time to copy out the books again. Book burning was not new. Books dealing with magic had often been held at best dangerous, at worst evil and eventually criminal. The Emperor Augustus had more than 2,000 scrolls of prophetic writings burned in 13 143 BC, retaining only the Sibylline books – and not all of them. In Ephesus, at the end of the first century AD, under the influence of St Paul, many brought their books of magic art to be burned.144 In the Digest we read that someone charged with the division of an inheritance who found harmful drugs and poisons (mala medicamenta et venena) should not distribute them but rather destroy them, as he should books on unacceptable subjects, 138 139 140 141 142 143 144

AM 29.1.39–44. The whole city running to the Hippodrome, according to John Chrysostom, or. 3.7 (=PG 48, col.726). Cf. AM 28.1.26. Curran (1998), 93, n. 43, citing R.T. Ridley, Zosimus: New History (Canberra, 1982). CAH XIV (2000), 977–78, in the editorial Conclusion. Suet. Aug. 31.1. Acts 19.19.

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on magic or anything of that sort.145 There would seem to have been legislation to this effect: Nobody is permitted to possess books of magic art; if someone is found in possession of such books, after his property has been confiscated and the books publicly burned, he is deported to an island or, if humilior, capitally punished.146 The men who had books of this sort, books which might seem dangerous enough to be ordered to be burned, clearly had a literate, even scholarly, tradition; there were professional authors as well as professional magicians.147 Meanwhile, Palladius (the man whom Fortunatianus had arrested as a hired poisoner in the pay of the two embezzlers, but had then handed over to the Praetorian Prefect’s court) was busily spreading disaster. He had clearly been given an amnesty. He named ever more persons as having dabbled in forbidden arts, indulged in the use of poisons, or been accomplices of those intending treason. Officials were immediately sent to search and seal the houses of those accused; while doing this, they often planted written incantations and amorous potions to bring about their victims’ ruin.148 When these were read out in court, no attempt was made to distinguish truth from falsehood but, without opportunity of defence even though guilty of no crime, young and old alike had their property confiscated, their limbs tortured, and then were carried off in litters to their execution. (We are given no figures.) In consequence, throughout the eastern provinces whole libraries were burned by their owners for fear of something similar.149 At that time, says Ammianus, ‘we all crept about as if in Cimmerian darkness’, in terror of unannounced destruction. It has been suggested that ‘terror was used by these emperors as a political weapon against counter-forces in the state, both real and potential’.150 And pagans may have been particular targets, although it is clear that it was treason and magic rather than religion that led to their downfall; the neo-Platonist philosophers did, after all, dabble in theurgy and magic. The resumption of the inquiries Heliodorus too, the astrologer and partner of Palladius, was now operating under secret instructions from the imperial palace. He held the office of 145 146 147 148 149 150

D 10.1.4.1, Ulpian: ‘in libris improbatae lectionis, magicis forte vel his similibus, haec enim omnia protinus corrumpenda sunt.’ PS 5.23.18. Ogden (1999), 54–57. Compare the articles found in Germanicus’ room (see ch. 3). AM 29.2.4; cf. John Chrysostom, Hom. ad Acta Ap. 38.5 (= PG 60, 274–76). Blockley (1975), 119; 121.

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praepositus cubiculariis officiis, which gave him access to the women’s apartments, where he freely displayed the imperial warrants (elogia) which were to cause such grief. Through these warrants, he was able to give titbits of information to Palladius on how to make his accusatory speeches more effective.151 Heliodorus himself went so far as to accuse the brothers Eusebius and Hypatius, brothers-in-law of the late Emperor Constantius, who had been consuls in AD 359, of treasonable aspirations in these troubled days, even alleging that royal robes had been prepared for Eusebius. Valens was ready to believe anything; he summoned from the furthest regions those described as witnesses by the accuser, a man treated as free from the bonds of law as regards calumny,152 and ordered an inquiry to be made. Although Heliodorus persevered in his calumnious accusations, severe tortures could force no confessions but showed the distinguished pair as free of any guilty conscience. Nevertheless, Heliodorus retained his position, and they were punished with exile and fines, although admittedly soon afterwards they were recalled, the fines returned and their dignities restored. Yet when Heliodorus died, whether naturally or murdered, many men of rank, including the consular brothers, were ordered to dress in mourning and lead the funeral procession. Valens was earnestly besought to refrain from such inexcusable insult, but refused to listen;153 this is a whole world away from Augustus or the Antonines.154 Oddly, Valens spared the military tribune Numerius. He was convicted, on his own confession, of having cut open the womb of a living woman to remove her unborn child to use in his invocations of the dead. This may not have been murder, for she could well have been his own slave, but it was undoubtedly nefanda. Yet in spite of the protests of the whole Senate, he escaped unpunished in any way.155 Ammianus’ dating is unhelpfully vague, but it is possible that legislation was passed as a direct consequence of the affair: ‘If anybody should be convicted of making a sacrifice by killing an infant, it will be a capital offence.’156 Valens, says Ammianus, had never learned that royal power is best understood as care for others’ welfare, that it is the duty of the good ruler to restrain his anger and hesitate before inflicting that which cannot be undone.157 It was the lack of opportunity to 151 152 153 154

155 156 157

All this confirms that there had been a real palace conspiracy, even if it had not spread so widely as the emperor was ready to believe. Zosimus commented on the freedom from the danger of calumny with which the accusations could be made (4.14.4). AM 29.2.6–16. Consider the calm end of Thrasea Paetus in AD 66, after an evening discussing philosophy; he and Barea Soranus were allowed to choose their own deaths, while others implicated were exiled from Italy, and yet this was a trial for treason where magic practices were admitted (Tac. Ann. 16.21–35). AM 29.2.17. CTh 9.14.1, 7 Feb. 374, issued by Valentinian: ‘Si quis necandi infantis piaculum aggressus aggressave sit, erit capitale istud malum.’ AM 29.2.18. Cf. Seager (1986), 131–38.

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make a defence, that basic lack of due process, which seems so to outrage Ammianus, and to mark a departure from earlier practice, even in the trials of the Christians.

The continued prohibition of pagan sacrifices and divination The use of magic, and also pagan practices, continued to be forbidden. Sacrifices by day or night in order to consult future events were condemned again by Theodosius I.158 Soothsaying and haruspication were the target four years later: No mortal shall assume the audacity of performing sacrifices so that by the inspection of the liver and the presage of the entrails of the sacrificial victims he may obtain the hope of a vain promise or, what is worse, he may learn the future by an accursed consultation. The torture of a very bitter punishment shall threaten those persons who, in violation of our prohibition, attempt to explore the truth of present or future events.159 There was further severe legislation in 389, clearly referring to some particular scandalous episode involving a charioteer.160 Sacrifices and entry, at least reverent entry, into pagan temples and shrines continued to be forbidden, as did the worship of the lares and of images, but scrying the future remained the most feared activity: If any man should dare to immolate a victim for the purpose of sacrifice or to consult the quivering entrails, it is permitted to all persons to accuse him as with someone guilty of high treason, and he shall receive the appropriate sentence even though he has made no inquiries contrary to, or with reference to, the welfare of the emperors. For it is sufficient to constitute an enormous crime that any person should wish to break down the very laws of nature, to investigate forbidden matters, to disclose hidden secrets, to attempt interdicted practices, to seek to know the end of another’s life, to promise the hope of another person’s death.161 158 159 160 161

CTh 16.10.7, 381. CTh 16.10.9, 385. CTh 9.16.11, 389, but charioteers were frequently in trouble, e.g. AM 15.7.2ff; 26.3.3; 28.1.27; 28.4.25. Cf. Procopius, Anec. 1.12–13. CTh 16.10.12.1, 392. It was only in s. 2 of this statute that thurification, the sacrifice of incense to the gods, was forbidden; it offered fewer opportunities for divination than animal sacrifice.

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In 409 astrologers (mathematici) were to be banished not only from Rome but from all municipalities unless they were, after seeing their books burned under the supervision of the bishop, prepared to forswear any further practice of their false doctrine and become Christians; deportation was the penalty for disobedience.162 Justinian did not include all of these laws in his Code, nor did he himself legislate on the topic, presumably because in his more disciplined and more fully Christian society they posed no real threat.163 Procopius, however, describes Justinian and Theodora as bitterly hostile to astrologers, in spite of their being old men and respectable in every way.164 According to him, magic and poisoning were still charges used as sticks with which to beat the disgraced;165 but even in his venomous account, they do not feature very prominently under Justinian.

162 163 164 165

CTh 9.16.12, 409. CJ 9.18 has nine constitutions, as opposed to the Theodosian twelve; see Robinson (1995), 93f. Procop. Anec. 11.37–41. E.g. Procop. Anec. 9.39; 22.32.

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Chapter 7 JUSTINIAN THE LEGISLATOR

So far this book has been concerned with ‘famous trials’ primarily from the viewpoint of the historian (Livy, Tacitus, and Ammianus), of defence counsel (Cicero and Pliny) and prosecuting counsel (Pliny), and of the victims (ACM). In the absence of adequate evidence for the course of any fifth- or sixth-century trial, we must move away from trials, and consider finally the legislator, the Emperor Justinian (527–65). Legislative sources have been used in previous chapters, but largely as supplementary to the literary ones; there were the SCC which dealt with the Bacchanalians and with Piso, and, of course, the Theodosian Code, a witness to legal attitudes in the fourth century. However, Justinian’s legislation, in both wide and narrow senses, is particularly important for the understanding of Roman law; in its light, as well as that of some less juridical sources, one may consider how far theories of punishment explain penal policy.

Justinian and the Corpus Iuris Civilis In the wider sense Justinian is the creator of the Corpus Iuris Civilis. He did not write the texts of Digest, Institutes or Code, but he (through Tribonian and the other compilers) preserved them, edited them, arranged them. A code, if no more, must have been a project he had already been meditating while heir to Justin, for he became emperor in 527 and the first edition of his Code was published in 529. The works comprising the Corpus give us his view of law as it should be known to the lawyers of his Empire, to the law schools, to the courts and their clients. Almost all our knowledge of the Roman legal sources1 comes to us through Justinian. The Corpus has affected all subsequent law in Europe and in the wider world influenced by Europe. Roman criminal law was less influential than Roman private law, but it was still important, and it also had an indirect influence on later developments through the canon law. So, while our main purpose is to look 1

For the various interpretations of this term, see Robinson (1997), with further information on the Corpus Iuris Civilis.

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J U S T I N I A N T H E L E G I S L AT O R

at Justinian’s attitudes, as well as those of other Romans, to penal practice and policy, we must not forget that he passed his views and his principles to our ancestors, and thus helped shape our attitudes to criminal jurisprudence. Some of his views on interrogation and punishment took an unfortunately long time to disappear. Of course, the views he passed on were not precisely the attitudes of his day, but a composite of earlier and existing Roman attitudes, with input from the first century of the Empire onwards. It seems likely that it was the compilation of the Digest that led Justinian to order a revised version of the Code. Since the enactments in each title of the Code were arranged chronologically, new legislation did not need a new Code, merely the addition of new laws at the ends of titles, a scribal task. But the system used in the Digest may well have led to the introduction of the titles on the crimina extraordinaria in Book 9 of the revised Code. Justinian actually says in Tanta, the Latin form of the enactment publishing the Digest: Next there are two terrifying books on delicts and private crimes and then public crimes, which describe the whole severity and harshness of penalties. With these are mingled the provisions that have been made concerning audacious men who try to hide themselves and display themselves as contumacious, and also the penalties that are inflicted on – or remitted to – condemned persons and their property.2 The juxtaposition of the contents of Digest Books 47 and 48 was thus quite deliberate. The only major delict not included in Book 47 was liability for damage to property under the lex Aquilia,3 and this was presumably excluded because it was essentially treated by the jurists in terms of negligent fault (culpa), not malice (dolus).

Justinian’s own legislation in Code, Book 9 In the narrow sense Justinian’s legislation is to be found in (the second edition of) his Code, and in the subsequent Novels. There are seven of his laws in Book 9 of the Code, the Book devoted by his compilers to criminal law, five of them dated to 529. The first, in Greek, to Mena the Praetorian Prefect and dated 18 January, is concerned with issues of procedure, with the preliminaries to a trial. It restricts to the higher magistrates at Rome, and to governors and defensores civitatis in the provinces, the power of 2

3

Tanta, s.8a; Dedoken, s.8a, the Greek version, talks separately of extraordinary crimes and delicts, explicitly making the former intermediate in seriousness between delicts and crimes of the ordo. D 9.2.

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remanding an accused in custody. It lays down that it is the bishop’s duty to visit prisons weekly to discover the charges made against the prisoners, whether they are slave or free, whether they are there for debt or for some criminal charge. Slaves must be brought before the court within twenty days, and either punished or returned to their owners; if no owner appears, they are to be let go. A free man on remand on a criminal charge is to be freed on giving sureties; if he cannot provide security he may be held six months, or at most a year, within which time the case, unless it is capital, must be decided. Someone accused not by a private citizen but ex officio cannot get bail, but the case must still be heard within six months. No bail is to be granted, however, where there is a presumption of guilt (cum autem praesumptio extiterit eos obnoxios esse). Magistrates and their office staffs who fail to observe these regulations are to be liable to a fine of 10lb of gold; it is for the local bishop to denounce them.4 A longer law, separated in the Code from the one just cited but presumably issued originally as part of one complex Novel since it has the same date and addressee, was concerned with regulating the penalty of exile, in particular exile to a designated place. This forbade those sent into exile to be kept imprisoned in the places to which they were sent, and forbade anyone to be relegated to the fortress of Gypsus (a mining town in Egypt) or to other garrisons (praesidia). Those exiled for a capital crime, whether to perpetual or temporary exile, were also not to be kept under prison conditions but sent to the province specified by the judge, with the right to live in any part of that province; they were not, however, allowed to leave it, or , to act turbulently (asajsx|) while remaining within it. For such turbulent behaviour the exile was to suffer the death penalty, imposed by the governor either of the first province or of the province to which he fled. Those thrown into prison in the capital were not to remain there longer than the six months or year already specified.5 In the provinces too inquiries into crimes should not be delayed; if anybody seemed deserving of exile, he should not be imprisoned but relegated at once to one of the permissible provinces, on terms again that he was to suffer the ultimate penalty if he fled the province or acted turbulently therein. Only the governors of Alexandria and the Thebais were permitted to relegate to Gypsus or the Great Oasis, and then only for six months, or at most a year; thus these could not be used for perpetual exile. The office staff of each court was to keep the governor reminded that nobody was to be held beyond the fixed period of his exile but to be released immediately, without loss or delay; anybody who had dared to accept something (perhaps as a bribe for the due release) must restore it fourfold. The local bishops were responsible on behalf of those

4 5

CJ 9.4.6, 18 Jan. 529. In CJ 9.4.6, as above.

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relegated, whether temporarily or in perpetuity, for seeing that these regulations were observed.6 Private prisons, whether in town or country, were totally prohibited in another law (originally, one presumes, also part of the same long Novel), again addressed to Mena the Praetorian Prefect and dated 18 January. Anyone establishing a private prison, whatever his status, was to serve as many days in the public prison as persons had been shut up in his private prison; further, he was to forfeit his case against anyone thus illegally imprisoned. The bishop and the governor were to see to this, and a governor who neglected his duty was at risk for both his property and his personal safety (salutis).7 The first law in this title of the Code is dated 486, from the Emperor Zeno, again to the Praetorian Prefect. Nobody was to run a private prison in Alexandria or Egypt or anywhere else in the empire, whether in the country or at his private house; it was the duty of the Prefect of Egypt and other provincial governors to check the arrogance of such wicked men.8 If they did not punish them as treasonable, it would be held akin to treason in them too, and the senior members of the office staffs were under the same threat. The penalty for keeping a private prison was, as for treason, the aggravated death penalty (ultimum supplicium).9 It is possible that Justinian, like Zeno, was thinking particularly of conditions in Egypt, since the part of the law regulating exile seems particularly concerned with Egypt. So Justinian retained Zeno’s law, with its minatory approach, in the Code, but his own penalty was considerably more realistic, and probably more deterrent. Perhaps the governor had the discretion to apply Zeno’s penalty in aggravated circumstances. Another law, again addressed to Mena – this one is in Latin – but dated 1 April, also deals with procedure, in this instance with the time to be taken to bring a case to a conclusion. It requires the whole criminal process following litis contestatio to be completed within two years, with no further postponements; if the matter had not been concluded by then, the accused was to be released. Judges and their staffs who allowed litigants to prolong matters were liable to a fine of 20lb of gold.10 The one-year period laid down by Honorius and Theodosius had clearly been found too short;11 in Justinian’s Code, in which that enactment is preserved but edited, the reference is only to ‘the fixed time’.12 Older laws on procedural time limits had largely been aimed at preventing the parties, particularly the defence, 6

CJ 9.47.26, 18 Jan. 529; so also to Mena. CJ 9.5.2, 18 Jan. 529. 8 The practice was not new; consider the fate of Marcus Aurius in the Social War (ch. 2). 9 CJ 9.5.1, 486. 10 CJ 9.44.3, 1 April 529. 11 CTh 9.36.2, 409. 12 CJ 9.44.2, 409: certum tempus. This neatly illustrates the way Justinian’s compilers might use and update the Theodosian Code. 7

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prolonging matters indefinitely; Justinian seems more concerned with the judges’ minding their duty. In September 529, in another law again addressed to the Praetorian Prefect, here Demosthenes, the slaves of a disputed inheritance, including those freed in the testator’s will, were permitted to be tortured to reveal any unknown facts, including the whereabouts of corporal property in their charge; not only were they to be tortured, but upon oath.13 The reference to the torture of slaves is presumably why this is placed in Book 9, but the context is really the private law; the rest of what seems to be the same law is elsewhere in the Code, in the title on the oath against calumny, where it is stated that torture is only to be used when other proofs fail.14 The presence in Book 9 of a law of October 532, when John is the Praetorian Prefect addressed, probably has the same rationale. On the occasion of a divorce for adultery, the slaves of both spouses and of their parents are to be in effect sequestered for two months in case their evidence – under torture – is needed; this is also to apply after a wife’s death, in case an allegation of adultery should affect the dotal actions.15 There was, however, one innovatory enactment issued by Justinian in 533 concerned with the substantive law, de raptu virginum et viduarum.16 Raptus is an ambivalent term; it connotes plundering and carrying away. It seldom means rape in the modern criminal sense, which probably fell between stuprum and vis, but there is an element of violence which makes ‘ravishing’ a rather more suitable translation than ‘abduction’ – ‘if anyone . . . ravishes a woman against her will or abducts a willing one’.17 It was, however, sometimes linked with abduction-marriage.18 This law of Justinian’s did not introduce a new crime, but a radically new treatment. The earlier legislation, appearing under the same rubric in the Theodosian Code, laid down that if a man, without previously having come to an agreement with a girl’s parents, ravished or abducted her with a view to acquiring her patrimony, and hoped to obtain protection by her consent, this would avail him nothing, even if she did then agree to marry him, because of women’s frivolity and fickleness; rather she was to be punished as his accomplice. Corrupted nurses or attendants were to have their throats stopped with molten lead. The girl was to be punished with the same severity as the ravisher if she had 13 14 15

16 17 18

CJ 9.41.18, 529; why this should need to be said is obscure; cf. already CJ 9.41.10, 290. CJ 2.58.1, 529, as had been said by Antoninus Pius (D 48.18.9pr, Marcian 2 de iud. pub.). CJ 9.9.35, 532; no accusation had yet been made. It is slightly different from CTh 9.7.4, 385, which limits the liability of slaves to be questioned to those who were in the house at the time of the alleged offence. CJ 9.13.1, 533; it also covered the ravishment of married women and of fianceés, ss. 1a and b. CTh 9.24.1pr, 320: ‘si quis . . . invitam eam rapuerit vel volentem abduxerit.’ Evans-Grubb (1989) and also (1999). On an apparent abduction-marriage in fifth-century Gaul, see Koptev (2004).

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agreed to his advances; if it was against her will, she ought to have stayed at home and, if the doors were broken open, to have screamed for the neighbours, but she was to be punished more lightly, simply denied the right of inheritance to her parents. A ravisher convicted beyond doubt – indubitate convictus, a loaded statement – was to have no right of appeal. A slave who revealed an abduction which had been covered up or compromised was to get his freedom as a Junian Latin (with citizenship for one who was already a Latin), and the parents were to be deported. Accomplices were to be capitally punished, being burned if servile.19 Constantius had modified the penalty to simple capital punishment, while retaining the flames for any slaves.20 Valentinian, Valens and Gratian dealt specifically with abduction-marriage; they allowed a five-year period from the deed within which to bring an accusation, after which the right lapsed, and any children must be held legitimate.21 Justinian chose to exclude these laws from his Code, although retaining in his own words certain of their provisions. His is the only constitution under this rubric. The original law seems to have been much longer; one part of it dealt specifically with the ravishing of consecrated virgins and deaconesses,22 and another with the constitution of marriage, even without a dowry, and the dotal consequences of both unjustified and justified divorce by the man.23 In the law as published in Book 9 of the Code, the ravisher was to be pursued wherever he fled throughout the Empire. He was denied the right of appeal, explicitly following Constantine’s model, but the charge against him must be properly proven;24 the penalty was death and confiscation of all property. A freeborn victim acquired the entire confiscated property of her ravisher, which could be added to her dowry or remain in her full ownership. This reward was Justinian’s particular innovation, but freedwomen or slaves did not benefit from it. The victim was to be allowed to marry whomsoever her parents wished, except the ravisher. The ravisher’s active accomplices like him suffered confiscation and death, but indirect accomplices, male or female, although also put to death, could leave their property to their families. Parents who tried to cover up the affair were to suffer deportation; treacherous slave attendants were to be burned, regardless of sex, as Constantine had laid down. The law explicitly abrogated the lex Iulia 19 20 21 22

23

24

CTh 9.24.1, 320. CTh 9.24.2, 349. CTh 9.24.3, 374. CJ 1.3.53, 533; it gave the estate of the ravisher to the victim’s convent or diocese, reserving for her a competence. It completely replaced CTh 9.25.1–3, and was slightly amplified in NovJ 123.42 of AD 546. CJ 5.17.11, 533. Two other possible parts of the same law, since all are addressed to Hermogenus, magister officiorum, are CJ 7.24.1, abolishing the SC Claudianum, and 11.48.24. All take a relatively enlightened attitude towards women, like his treatment of prostitutes in NovJ 14. CJ 9.13.1c: ‘post legitimas et iuri cognitas probationes.’

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(presumably referring to Augustus’ marriage legislation generally) and later legislation on rape and ravishment,25 perhaps including the five-year prescription on bringing an accusation. The woman’s consent was no defence, but Justinian did not seem inclined to blame her. To clarify some points he revised the law in a Novel of 563. The victim was not permitted to marry the ravisher in any circumstances – he ought, of course, to have been executed; if her parents consented to such a marriage they were to be deported. If she married him against her parents’ will, they received the ravisher’s entire estate; if they were dead it was to be claimed for the fisc as ultimus haeres. The law was to have retroactive effect.26 In preJustinianic legislation the victim is presumed to be responsible for her fate; to judge from the rhetoric, Constantine’s main concern seems to have been the punishment of the woman who was seduced. Justinian’s attitude was not directed against the unfortunate women, but aimed to ensure the transfer of the property of the ravisher or would-be ravisher to the victim, or, in the case of consecrated women, to the appropriate religious establishment, which is presumably why that part of the law was placed in Book 1, not Book 9, of his Code.

Justinian’s legislation on criminal matters in his Novels In his legislation subsequent to the publication of the (second) Code in 534, that is, in his Novels, Justinian introduced little of substance into the penal law or its procedure. Most references to matters criminal were simply laying down what constituted just grounds for divorce or disherison, or giving orders in generalized terms to officials to repress wrongdoing in their provinces.27 Where there was something more specific, it is clear that Justinian’s particular concern was with offences against morals, sexual offences. We have already mentioned Novel 143 (= 150), an amending statute on ravishment. There are three Novels on incestuous marriages.28 In Novel 12 of 535, addressed to Florus, count of the privy purse (comes rerum privatarum), Justinian deplores the lax attitude taken by earlier emperors, and insists on the punishment of the guilty. Yet he seems primarily concerned with the rights of any legitimate children from a previous marriage; their existence gives them succession to the whole estate, which otherwise is confiscated.29 The man in the union is to be deprived of any office and sent 25

26 27 28 29

‘Omnibus legis Iuliae capitulis, quae de raptu virginum vel viduarum seu sanctimonalium sive [in] antiquis legum libris sive in sacris constitutionibus posita sunt, de cetero abolitis, ut haec tantummodo lex in hoc capite pro omnibus sufficiat.’ NovJ 143 (= NovJ 150), 563. Wal (1964), 47, fn 1; e.g. NovJ 22.15 and 117.15 on divorce; 115.3–4 and 117.8–9 on disherison. NovJ 12, 535; 139, no date; 154, no date. NovJ 12.1–2.

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into exile, after being flogged, if of humble status; the woman too is liable if she knew the law.30 Those truly ignorant of what counted as incest are merely deprived of their property, of which a quarter goes to the fisc and three-quarters to any children.31 In spite of the preamble, although the tone of this Novel is harsher, the ruling is not so different from earlier enactments. Novel 139, addressed to the same Florus and undated, remits the penalty for illicit marriage to certain inhabitants of Sinde (a village a couple of miles from Tyre) and to the Jews of Tyre. They had not paid the fine of a quarter of their property; nevertheless, he allows their entreaty that they be allowed in their old age to retain their wives, and that their children should be their legitimate heirs, but for this concession each must pay 10 lb of gold. This lenient treatment is not, however, to set a precedent.32 The third, also to Florus and undated, dealt with a shocking, but unspecified, rumour about illicit marriages in the provinces of Osroene and Mesopotamia; it was hard to believe that the inhabitants dared violate the laws of the Romans, but they were rustics who had endured many invasions, therefore inquiries into the past would not be made. But for the future anyone, whatever his status, who contracted an illicit marriage was to be punished by the loss of all his property and a portion of his body, and in specially serious cases by death.33 There is quite a long Novel on pimps (lenones), addressed in 535 to the citizens of Constantinople.34 This also dealt with prostitutes, showing some sympathy for the girls caught up in the trade. The pimps were accustomed to go round the provinces, luring the wretched girls with promises of slippers and fine clothes, and then shutting them into brothels in the city; they enticed even girls under ten years old in order to prostitute them. Justinian urged women to prefer chastity to luxury; he wanted to protect both freeborn and slave. Any guarantees or promises they had given to the pimps were henceforward invalidated. Pimps were to be flogged and expelled from the city. The trade of prostitution was forbidden.35 Procopius tells us that on one occasion more than 500 prostitutes in Constantinople were rounded 30 31 32 33

34 35

NovJ 12.3. NovJ 12.4. This presumably refers to cases where there was an agnatic bar but no blood tie. NovJ 139. Were the Jews engaging in levirate marriages? NovJ 154: ‘solitum et romanis legibus dignum ordinem [omnes] esse servituros’; Justinian seems particularly concerned with the failure to observe traditional Roman law. ‘Cum non solum substantiae partem auferamus sed etiam totam substantiam et partem corporis { . . . } forte etiam ipsam animam’: was castration the appropriate form of mutilation? NovJ 14. Cf. NovTh 18, of 439, which laid down that pimps were to be flogged and expelled the city; prostitutes who were slaves were to be freed, and free women released from the brothels. Earlier attempts to forbid prostitution in Rome had not met with success (SHA, Tac. 10).

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up and enclosed in a convent on the other side of the Bosphorus; he adds that some of them threw themselves from the parapet at night, and so escaped enforced virtue.36 A Novel of the following year, addressed to John the Praetorian Prefect, was really a supplement, since it was concerned with releasing actresses from any security they might have given to their employers for the provision of sexual services. They could withdraw from such immoral contracts without running any risk of perjury, a risk now borne by anyone claiming the fulfilment of the contract. Any pimp making such a claim was to be fined 10 lb of gold, as was anyone knowingly permitting prostitution from his house; the fines were to go to the woman to help her start a new and more moral life.37 Some months earlier a Novel was issued, addressed to John the Praetorian Prefect, entitled ‘concerning the governor of Cappadocia’, but in fact dealing with a number of matters, including the principles of punishment. Harsh punishment was to be imposed for adulteries, ravishings, violences, murders and other crimes, specifically as a deterrent, ‘for by the punishment of a few, the remainder would be permanently restrained . . . This is not inhumane, but rather true humaneness, since by the chastening of a few, many are saved.’38 Some twenty years later, in 556, a Novel was issued, addressed to the Urban Prefect, which dealt with a wide range of topics, disciplinary as much as criminal; its rubric, in two of the versions, referred to adulterous women, although this was hardly the dominant theme of the law. In one chapter, on offences in general, it was laid down that governors were to pursue the actual offenders and not others vicariously, nor were the inhabitants of a district to be punished just because a crime had been committed in that locality. Whole villages were not to be punished, but the actual perpetrators should undergo the penalty of the laws; exile was to be the penalty for unjust judges.39 The next few chapters were also concerned with due procedure. Justinian strongly disapproved of prison for women, where they might be exposed to the abuse of their gaolers. The law laid down specifically that no woman was for any reason to be confined or held in a public prison. If a woman was faced with a criminal charge which would normally involve remand to prison, she could find security, or simply swear that she would appear; if it was a really serious charge, she might be required to live in a convent or under house-arrest under female supervision, 36 37

38

39

Procopius, Anec. 17.5–6. NovJ 51. Any such oath by one of these actresses was ‘turpe et absurdum et ad perniciem ducens’. Justinian again shows practical sympathy for fallen women in passing the fine over to the victim. NovJ 30.11pr: ‘utpote paucorum hominum supplicio omne quod reliquum est perpetue temperetur, sitque cum lege castigator subtilis delinquentium. Non enim inhumanum est hoc, maxima magis humanitas, dum paucorum correptione multum salvum est.’ NovJ 134.4.

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but in the interests of chastity she was never to be put in the custody of men, in a prison or elsewhere.40 While adultery was still a capital offence (as it had been under Constantine), at least if it were repeated, the normal penalty for an adulterous woman was to be confined in a convent. There was a period of two years in which she could be reclaimed by her husband; if he did not do so, whether by choice or as a result of his death, she must stay there for life.41 This enactment implicitly abolished the liability of a husband for lenocinium in the form of condonation, since it permitted him to forgive his erring wife and continue the marriage. The final chapter of this law dealt with the penalty of mutilation; we shall return to this. Luxuria, which included homosexuality, and blasphemy were crimes against nature, which, it was believed, could cause famine, earthquake and plague, occasioned by the wrath of God.42 Those guilty of such crimes were to incur the ultimate punishment. Procopius, in his Secret History, remarks on Justinian’s zeal against homosexuals and pederasts.43 In 559 the people of Constantinople were the recipients of another Novel on this topic. Here Justinian began with a brief disquisition on repentance and forgiveness; the emperor wished to see sinners, specifically male homosexuals, change their way of life. However, for those who continued in this practice, there were to be unspecified very harsh penalties,44 which, as we hear from Procopius, might include castration.45 Linked in the legislator’s mind with homosexuality was the practice of castration for sexual ends. Here the penalty was talio, castration for the wrongdoer (unless, of course, female), along with confiscation of property and perpetual exile; a castrated slave, even one castrated for medical reasons, was to receive his liberty.46 Presumably the eunuchs who had been a feature of palace life since the fourth century should now have disappeared from the scene, but the ruling of Constantine, more than two centuries earlier, that the making of eunuchs was a capital offence, had clearly had no great effect.47 Leo had made the trade in eunuchs illegal, except for those of barbarian race made so on barbarian soil.48

40 41 42 43

44 45 46 47 48

NovJ 134.9. NovJ 134.10. Divorce, other than on authorized grounds (cf. NovJ 22.12), was also penalized by lifelong confinement in a monastery (134.11–12). NovJ 77.1.1; the undated Novel is addressed to the people of Constantinople. Procop. Anec. 11.34–35; 19.11; 20.9. Accusations of sodomy or pederasty and heresy were, according to Procopius, standard charges, rather as adultery and treason had been in an earlier period. NovJ 141.1. Cf. Procopius, Anec. 11.36; 16.19–21. NovJ 142, of 558, addressed to the comes rerum privatarum; cf. CJ 4.42 CJ 4.42.1, Constantine; cf. Hopkins (1963). CJ 4.42.2, 457–65.

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Punishment was another issue with which the emperor was concerned. Alongside the concept of the death penalty as a deterrent,49 we find that the notion of reform might affect the punishment; after all, homosexuals had been given the opportunity to repent. In one of the various Novels addressed to provincial governors, and commonly dealing in platitudes, the language of cure is used for those guilty of violent offences. ‘Let torture be applied to them by all means if they are irremediably sick, but if only moderately, let punishment turn them to better things.’50 Novel 134, that compendious statute, also required some restraint in the imposition of punishments. Justinian abolished various corporal penalties, including the amputation of both hands, or of a foot, and the disarticulation (dislocation?) of the joints.51 His explanation, that this was ‘to protect human weakness’, was probably aimed at leaving the criminal able to earn his living, rather than a recognition of humanity’s moral weakness.52 On the margins of the criminal law were Justinian’s Novels repressing pagans, Jews and heretics.53 In general he imposed no corporal penalties on them, but severely limited their patrimonial rights – harsh enough, but at least not bloody. Justinian’s Code and the Theodosian Code The above is all there was in the way of Justinian’s own legislation in the field of penal law. There is remarkably little of it for a reform-minded emperor54 who reigned for nearly forty years, which confirms the view that Justinian, at least after AD 534, saw the Corpus as expressing his legislative views. But before turning to the Digest, it is illuminating to compare Justinian’s Code with the Theodosian. To start with, there was a significant difference between the principles on which they were compiled. Theodosius ordered the collection of all general legislation since the reign of Constantine, whether in force or not,55 whereas Justinian told his compilers to select only those laws that were still operative, to cut out the superfluous 49 50 51

52 53 54

55

NovJ 30.11pr, already cited. NovJ 25.2.2, 535: ‘et violentos si quidem inmedicabiliter aegrotant, etiam omnino torqueat; si vero mediocriter ad meliora convertat.’ NovJ 134.13. When the Empress Theodora put to the torture two young members of the faction supporting the Green team in the Circus races in her pursuit of John the Cappadocian, she finished by having their right hands cut off (Procopius, Anec. 17.44). Manfredini (1995). NovJ 45; 109; 129; 132; 144; 146. Cf. Procopius, Anec. 11.21–33; 19.11; 28.16–19. Procopius, e.g. Anec. 14.1–10, saw him as always innovating, changing things for the sake of change. In the area of family law and succession he was a radical, in effect abolishing the agnatic family in Novel 118 of AD 543, supplemented by Novel 127 of 548. It is true, however, as Alan Watson points out, that he made virtually no changes to the law of property or obligations. This may well be because there is a definitely Christian angle to the legal treatment of the family. CTh 1.1.5, 429.

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and the obsolete, and to correct where necessary.56 Other differences are that Justinian’s Code includes not only general legislation but also rescripts, which were the emperors’ responses to individual problems submitted to them by officials or even private citizens, and that it includes imperial enactments which go back to the time of Hadrian, and so come from the period of classical law, and from the pagan world. This was because Justinian told his compilers to take material from the Gregorian and the Hermogenianic as well as the Theodosian Codes; the former were collections of imperial legislation made under Diocletian (284–305).57 Justinian’s Code is rather more systematic than the Theodosian, although both, logically enough, deal with procedural matters, particularly accusation and arrest, at the start of Book 9, and with trial and sentence at the end. But as well as the formal crimes, the crimes of the ordo, Justinian devotes titles to the crimes outside the ordo, mostly lesser crimes or even delicts, such as the crimenexpilatae hereditatis, rapina, stellionatus and de iniuriis.58 Where Justinian did take the constitutions of the Theodosian Code into his Code, this was frequently without changing them; if a change were made, it was always towards the less rhetorical, the less threatening, the less savage. The one change in the opposite direction was introduced not into the new Code but the Institutes, his elementary textbook. The penalty for parricide, as we saw in chapter 2, was to be sewn into a sack and thrown into running water. Other forms of death penalty seem to have been current in the Principate, but for Constantine the sack was to be the sole punishment for the murder of a parent.59 Snakes might be included in the sack, and perhaps an ape; in the Institutes we find a dog and a cock as well.60 My guess, however, is that the disproportionate treatment given to the penalty of this crime in the Institutes was designed to entertain the students, to liven up the final lecture, since in the Code it is the simpler version which is preserved. In his Code Justinian omitted Constantine’s wild address to the provincials, imploring them to accuse corrupt officials,61 although he preserved a rather similar one from Valentinian.62 He did not preserve the penalty of 56

57 58 59 60

61 62

c. Haec quae necessario, the law ordering the making of the Code, regularly printed as a preface to it. Sometimes the state of the law was left problematic, as we saw with CJ 9.5.1 and 2, on the penalties for keeping private prisons. Two editions of the Code were published, in 529 (by the law Summa) and 534 (by Cordi), but there is no reason to think they were compiled on different principles, although the arrangement of the titles may have differed. See Corcoran (1996), 25–42; we are in agreement that they were official compilations. CJ 9.32–35. CTh 9.15.1, 318; cf. CJ 9.17.1. Yet consider the unemotional tone of CJ 9.1.14, 294. Inst. 4.18.6, as we do in D 48.9.9, Mod. 12 pand. Perhaps it should be added that Justinian’s Institutes in including a final title de iudiciis publicis, on criminal courts, did not follow their chief model, Gaius. CTh 9.1.4. CTh 9.27.6 = CJ 9.27.4, and also CTh 9.14.2 = CJ 3.27.1, on marauding soldiers.

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the sack for adulterers, simply the sword,63 but he did keep Constantine’s hysterical denunciation of homosexual practices.64 He continued to make corruption by senior officials capital, but without the rhetoric.65 Sometimes Justinian simply preserved a reasonable generalization from a longer, more rhetorical law: ‘Guarding, with knowledge of the crime, the spoils of one who took by force, is a crime akin to taking by force’.66 He also preserved an extraordinarily ambiguous law of Theodosius I: If any person, insensible to decency and ignorant of propriety, should think fit to assail our Name with wicked and impudent abuse, and thus riotous with drunkenness he disparage Our times, we do not wish him to be subjected to punishment or to sustain any harsh or severe treatment, since, if such conduct proceed from levity it must be treated with contempt, if from insanity it is most worthy of pity, if from a desire to injure it should be pardoned. Wherefore the case shall be referred to Our knowledge with all its details unchanged, so that We may consider the words on the basis of the character of the man, and that We may decide whether the offence should be overlooked or duly prosecuted.67 Justinian may of course have been motivated by humanitas here, but it is hard to believe this of the original authors of the law. Of some fortyfour rhetorically heightened texts in the Theodosian Code, Justinian omitted eleven, and preserved the sense but diminished the colouring in eight; he modified the substance of eight, but let the colour remain, while sixteen texts were unchanged.68 Rhetoric had its place in revealing the importance and the power of the emperor, but Justinian made less use of it than had Theodosius and his predecessors; he sounds less desperate to have his commands obeyed. Perhaps his diminished empire was somewhat easier to govern than had been the old empire, before the barbarian settlements. Justinian’s own legislation was for the most part rational in tone and enforceable. Whether or not influenced by all their reading of the classical jurists, who very rarely heightened their language, the compilers’ preference was normally for the practical. The raucous phase of Roman criminal legislation was just a phase, quite a long phase but now largely over. Of the 63 64 65 66 67 68

CTh 11.36.4 (burning alive was the alternative; cf. CJ 9.9.29). CTh 9.7.3, = CJ 9.9.30. On the other hand he omitted the more rational CTh 9.7.6, 390. CTh 9.28.1, 392; cf. CJ 9.28.1, 415. CTh 9.28.2, 415; cf. CJ 9.12.9: ‘crimen non dissimile est rapere et ei qui rapuerit scientem delictum servare.’ CTh 9.4.1 (9-8-393) = CJ 9.7.1. Robinson (2000).

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three principal topics rhetorically treated in the Theodosian Code, magic, sex and corruption, Justinian omitted several of the Theodosian texts banning astrology and divination, but left others as they stood.69 He did not legislate himself in this area. He continued to be concerned with corruption, and even more with sexual wrongdoing, but more quietly. In post-Theodosian legislation incorporated into Justinian’s Code there is very little rhetoric.70 In fact, in Book 9 there are only seven such texts.71 We have discussed Zeno’s regulation of private prisons. The earliest of the group is an enactment of Theodosius and Valentinian requiring the promotion of the most suitable officials, and laying down that these should take an oath that they had in the past never connived at wrongdoing and would in the future take nothing but their salary; accusations of taking or giving bribes were open to anyone, not restricted by the curbs on informers, and there was a fourfold penalty for anything extorted improperly.72 Marcian legislated against those who sheltered brigands or other criminals, with the threat of calumny for wrongful accusers.73 Leo forbade popular clamour to be raised against individuals; such demands were to be ignored, and punished.74 Leo, with Anthemius, also legislated against the bucellarii and other bands of armed retainers employed by many of the potentes, the greater landowners, who often also held official position. The penalties were severe for those who neglected to enforce this ban on armed followers; governors were to lose their rank, and perhaps their life, as well as being fined 100 lb of gold, while their senior office staff were to suffer capital punishment with confiscation.75 Zeno required those bringing actions of criminal assault or outrage to use solemn procedure and to appear in person, unless they were of the highest rank.76 Under Justin, and therefore perhaps on Justinian’s initiative, it was laid down that interference with funerals, on the grounds that the deceased was a debtor, was ‘contrary to the spirit of our times’. The consequence was to be the invalidation of any security extorted, and also

69 70

71

72 73 74

75 76

CTh 9.16; cf. CJ 9.18. Though the last sentence of CJ 9.39.2, 451, is somewhat moralising: ‘exemplo autem grave est sic latronem requirere ut innocentibus periculum fiat’ (for it does set a shocking example to pursue a brigand in such a way that innocent persons are put at risk). There are also two other insertions, a text ascribed to the jurist Paul (CJ 9.8.6), and an undated quotation from the Basilica (CJ 9.49.11). Justinian’s compilers made use of Theodosius’ Novels, his legislation subsequent to 438, but not, it seems of the collections of Novels of later emperors, or not as they have survived to us. CJ 9.27.6, 439. CJ 9.39.2, 451. CJ 9.30.2, March, 466. This might be linked to the protests which followed the great fire of Constantinople in September 465, after which Leo withdrew to the Golden Horn for six months. CJ 9.12.10, 468. CJ 9.35.11, 478.

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serious punishment, a fine of 50 lb of gold, or corporal suffering for an offender unable to pay. Urban magistrates or provincial governors were liable to heavy penalties for failure to enforce this law.77 These laws are all both clear and (theoretically) enforceable. Justinian was much concerned with (largely pragmatic) attempts to improve criminal procedure.78 Constantine had ruled that the chains of accused persons in custody should not be too heavy, but Justinian added to the version of this law as preserved in his Code, ‘if indeed the nature of the charge demands the severity of chains’,79 and, as we have seen, his own legislation was generally cool and rational. He omitted the more dramatic constitutions aimed at slaves or freedmen who accuse their owners or patrons.80 He was more flexible about the time limits, giving the accused at least thirty days, rather than a maximum of thirty days, to put their affairs in order.81 With at least one law, confirming the privilege against torture of chief decurions, Justinian’s version made this apply to all decurions.82 One difference between Theodosius and Justinian seems to be that the latter was more careful to preserve the rule of law, and especially the privileges of the upper ranks of society.83 His Novels show that the attempt to improve criminal process was close to Justinian’s heart. Punishment in Roman law is the topic of the last chapter, but while we are dealing with Justinian’s own legislation we should consider his attitude to penalties. We can be reasonably certain that the punishments laid down in the Corpus were approved by Justinian, or they would not have been preserved.84 There may well be a difference here between the Corpus – Digest, Institutes and Code – and the Novels. The Corpus was a code, with all the disparate contents backed by the authority of the emperor, and to be taken as it stood; commentaries were prohibited, and interpretation was a matter for the emperor.85 It was something finished, complete. The Novels were current legislation; we can observe Justinian changing his mind on some points,86 refining his thoughts on others.87 While undoubtedly law to be observed, no one Novel represented the imperial mind as the Corpus did, and the Novels were never collected in Justinian’s lifetime. Nor, as we have 77 78 79 80 81 82 83 84

85 86 87

CJ 9.19.6, 526. Cf. CTh 9.37.1 with CJ 9.42.2. CTh 9.3.1; cf. CJ 9.4.1. CTh 9.6.1 and 2. CTh 9.2.3; cf. CJ 9.3.2. CTh 9.35.6; cf. CJ 9.41.17. Although Procopius reports the flogging of men of noble family (Anec. 15.22). C. Tanta pr: ‘Moreover, our majesty, ever investigating and scrutinizing what [the compilers] were drafting, amended, in reliance on the Heavenly Divinity, anything that was found to be dubious or uncertain, and reduced it to a proper form.’ c. Tanta ss. 18–21; c. Dedoken 19–21. E.g. NovJ 111, abrogating NovJ 9. NovJ 51, building on NovJ 14.

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seen, was Justinian, although a radical in some respects,88 much concerned to legislate on the criminal law other than in the sexual sphere, and on procedure. What changes did Justinian make? We have seen that lifelong enclosure in a convent might replace the death penalty.89 Castration, an illegal act, was punished by castration as, seemingly, was entering into an incestuous marriage.90 Mutilation, specifically the amputation of the limbs, was regulated, to the end that the convict might still support himself, and perhaps his family.91 Death by impalement is not recorded in the legal, only the literary, sources, but it was ordered by Theodora, if not by Justinian himself.92 Penal slavery, that is, the status of slavery without an owner – the slave being seen as slave to the punishment – which was a concomitant of condemnation to the mines, was abolished for the freeborn; however, this was not necessarily for what we would describe as humanitarian motives, but rather to preserve marriages.93 (Penal slavery was also the status of someone in the interval between a capital sentence and execution; this was probably not affected.) These are the innovations in Justinian’s legislation about penalties, and they occur in the Novels. As remarked above, the Novels were still fluid; they did not represent the imperial mind to the same extent as did the Corpus Iuris. Much, of course, remained the same, confirmed by Justinian. Slaves continued to be subject to torture, even in civil matters, where a crime was only a possibility, or where an accusation of adultery might follow,94 but this went back to Antoninus Pius.95 The texts are ambiguous on the possibility of torturing a free man in a pecuniary matter, but these texts were not placed in Book 9;96 the very late jurist Arcadius Charisius permits the 88

89 90 91

92

93 94 95 96

Unfavourably, Procopius, Anec. 6.21; 11.1–2. Already referred to is Justinian’s abolition of the agnatic family, the base of the classical Roman law of family and succession (NovJ 118, 543, and 127, 548). NovJ 134.11–12. NovJ 142; 154. NovJ 134.13; cf. Manfredini (1995). Other legislation included NovJ 128.20, 545, giving a governor’s deputy full powers, except to order the death penalty or the amputation of a hand; cf. NovJ 42.2.2, 536, with amputation of a hand for writing out heretical opinions. Procop. Anec. 17.3; 27.19; Averil Cameron in CAH XIV, 84, citing Malalas de insid. concerning the Greens in AD 564. (‘rjokopifx’ is the Greek verb.) Seneca had referred to something of the sort (Marc. de consol. 20.3: ‘alii per obscena stipitem egerunt’), along with upside-down crucifixion. NovJ 22.8. A marriage would be invalidated by the enslavement of one spouse; the wider benefit was incidental. CJ 9.41.18, 529; 9.9.35, 532. D 48.18.9pr, Marcian 2 de iud. pub. The term ‘debitum’ in CJ 9.41.16, 376, almost certainly means ‘offence’ (as in ‘dimitte nobis debita nostra’ that is, ‘forgive us our trespasses’, in the Lord’s Prayer).

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torture in this context of someone who has fought in the arena, or of a person of similar status.97 The penalties imposed on those who escaped from their place of exile, or who stirred up trouble there, were no harsher than before, and probably necessary.98 Fines seem sometimes preferred to physical penalties.99 Examples of Justinian’s milder tendencies are more numerous in the contrasts between the two codes, Theodosian and Justinianic – although this is by no means to claim he was soft on crime. However, a study of the term humanitas under Justinian – a term used by the emperor of himself, as opposed to benignitas, which is used of him by his subordinates – finds no instances pertaining to the criminal law.100 Perhaps his penal policy was milder than his penal practice.

Justinian and the jurists As well as the Code(s), and of course the Institutes, the other component of Justinian’s Corpus was the Digest. The contents of the Digest were not compiled from legislation but, once compiled, the Digest was legislation; it had full statutory force: ‘whatever has been written there should appear as our own work and composed by our will’.101 This means that we must take seriously, as valid imperial legislation, the writings of the jurists preserved in the Digest. Moreover, the principles developed by the jurists in such areas as the constitutive need for intention and an actus reus,102 diminished responsibility,103 defences such as self-defence104 or superior orders,105 complicity,106 and attempts,107 were thus incorporated into imperial law.108 Some matters are mostly taken for granted as part of Roman due process; these include the ban on condemning the absent, the right of an accused to make a defence, and to be given fair warning, and the impropriety of

97 98 99 100 101 102 103 104 105 106 107 108

D 22.5.21.5, Arc. Char. lib. sing. de testibus. CJ 9.47.26, 529; cf. Hadrian’s rulings (D 48.19.28.13–14, cited by Call. 6 de cogn.). CJ 9.19.6, 526. Wubbe (1990). c. Tanta s.10; cf. CJ 1.14.12.5, 529. D 48.4.3, Marcian 14 inst; cf. 50.16.53.2, Paul 59 ad ed. Women could be forgiven ignorance of the law (D 48.10.15.5, Call. 1 quaest.). But there was a doctrine of minimum force (D 48.8.9, Ulpian 37 ad ed.; 9.2.45.4, Paul 10 ad Sab.). For example, D 48.10.5, Julian 86 dig. For example, D 48.9.2, Scaevola 4 reg, or 48.9.7, Ulpian 29 ad ed. It was a capital offence for a soldier to attempt to desert to the enemy (D 49.16.3.11, Modestinus 4 de poenis). See Giuffre (1998); still, Gioffredi (1970); also Robinson (1995) 15–22. I am also grateful to my PhD student, Monika Carlin, for discussion on ‘principles’ arising out of her work.

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forcing somebody to take action against his will.109 Other questions have to be read into rather than drawn directly from the texts; these include such issues as the presumption of innocence, the burden of proof, and the standard of proof required. We have remarked concerns such as these in context in the earlier chapters. The jurists’ casuistic approach had the happy result that their arguments could be developed and refined by later generations working from the Corpus Iuris Civilis in very different circumstances. In view of the deliberate juxtaposition of Books 47 and 48 of the Digest, it is not surprising that juristic discussion of the issues of liability affecting criminal law has been preserved in both Books, although some other pertinent texts are to be found in Book 1, in the titles concerned with the duties of various officials, including provincial governors. It is evident that both knowledge and intention were required for the commission of most crimes, but this was never expressed as a general principle. Instead, one text remarks that someone taken with stolen goods may be a manifest thief, but if he did not know them to be stolen, he is neither a thief nor a manifest thief;110 again, if someone drove my jackass in among his mares when they were in season, he is not liable for theft unless he had the intention to steal.111 Even in cases of alleged treason, knowledge and intention were both required for guilt in cases where the constitutive facts might be unclear; for example, it was treason if a private citizen ‘knowingly and dolosely’ behaved as though he were a magistrate.112 When a judge was considering a charge of treason, he must take into account the nature of the person accused: could he have done it? Had he done or devised anything treasonable before? Was he in his right mind?113 Marcian put it another way when, in the context of the due measure of punishment, he wrote that a wrong is done intentionally or rashly or accidentally. A band of brigands do deliberate wrong; someone drawing his sword when drunk is acting wrongfully but without full intention; it is accidental when in a hunt a spear thrown at a wild animal hits a man.114 Punishment might still be due, even when there was no dolus, because of the need, in the public interest, for care with dangerous materials, but it could be milder, as, for example, the relegation of the woman who gave a medicinal potion that was

109 110 111 112

113 114

Examples are: D 48.19.5pr, Ulpian 7 de off. procons, citing Trajan; the trial of Christ (e.g. Mark 15.2–5; D 48.18.18.9, Paul 5 sent; ACM, Pion. 16.6). D 47.2.35, Pomp. 19 ad Sab. D 47.2.52.20, Ulp. 37 ad ed.: ‘furti non tenetur nisi furandi quoque animum habuit’; see also 41.3.37pr, Gaius 2 inst.; cf. 2.1.7.4, Ulpian 3 ad ed. D 48.4.3, Marcian 14 inst: ‘quive, privatus, pro potestate magistratuve quid sciens dolo malo gesserit.’ This would have applied to Piso, for example, once he had left his province. D 48.4.7.3, Mod. 12 pand; a slip of the tongue might be pardonable. D 48.19.11.2, Marcian 2 de pub.iud.

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fatal to the patient.115 Outcome was thus sometimes the deciding factor, but it could be said that in wrongdoing consideration was normally to be given to the intention, as Hadrian laid down in a rescript.116 Interestingly, there is one, but only one, Digest text where those of high status are punished more severely than plebeians, and this is based on motivation; honestiores are clearly the ones who commit the crime of moving boundary stones in order to enlarge their own property, whereas humiliores might be appropriating the stones through ignorance or lack of thought.117 There was clearly no discussion to be found in the jurists’ writings of the principle – as opposed to instances – of the lack of liability of those under puberty; instead, information on the topic must be drawn from various places. Infants were not liable under the lex Cornelia de sicariis because of their incapacity to harm, whereas lunatics were not liable because of their illness.118 Those under puberty were not liable for violation of sepulture because they were normally not capable of dolus,119 and the same explanation applied to the forgery of wills.120 In certain circumstances, however, where they had sufficient understanding, children could be liable for their misdeeds, as when a girl still under 12, who had formally been married although under the lawful age, committed adultery; the legal point was that the man could only prosecute her as his fianceé, not by a husband’s right.121

115

116

117

118

119 120

121

D 48.8.3.2, Marcian 14 inst: ‘relegari iussa est ea quae non quidem malo animo sed malo exemplo medicamentum ad conceptionem dedit.’ Cf., for Aquilian liability, 9.2.7.6 and 9.2.9, Ulp. 18 ad ed., but Ulpian could also say that it was irrelevant whether someone killed or furnished the cause of death (48.8.15, Ulp. 8 ad l. Iuliam et Papiam). D 48.8.14, Call. 6 de cogn: ‘Divus Hadrianus in haec verba rescripsit: in maleficiis voluntas spectatur, non exitus.’ Cf. 48.8.1.3, Marcian 14 inst. If somebody kills someone after drawing his sword there is a presumption of intention to kill, but if he struck someone with a key or a saucepan in the course of a brawl it would appear to be unpremeditated. Also Coll. 1.6, Ulpian, 7 de off. procons., citing Hadrian. D 47.21.2, Call. 3 de cogn., or Coll. 13.3, Ulp. 8 de off procons; both are citing a rescript of Hadrian. A landowner was relegated; a servant, obeying orders, might receive a sentence of two years’ forced labour, while if the deed were done carelessly by some poor man, a beating sufficed. D 48.8.12, Mod. 8 reg: ‘Infans vel furiosus si hominem occiderint lege Cornelia non tenentur, cum alterum innocentia consilii tuetur, alterum fati infelicitas excusat.’ Cf. 1.18.14.2, Macer, 2 de iud. pub.on the lunatic who killed his mother being punished by his insanity, but needing to be restrained to prevent further harm. D 47.12.3.1, Ulpian, 25 ad ed: ‘personae igitur doli non capaces ut admodum impuberes’. D 48.10.22pr, Paul, adSC Libonianum: ‘Impuberem in hoc edictum incidere dicendum non est quoniam falsi crimine vix possit teneri cum dolus malus in eam aetatem non cadit.’ D 48.5.14.8, Ulp. 2 de adulteris: ‘Si minor duodecim annis in domum deducta adulterium commiserit, mox apud eum aetatem excesserit coeperitque esse uxor non poterit iure viri accusari ex eo adulterio quod ante aetatem nupta commisit, sed quasi sponsa poterit accusari ex rescripto divi Severi.’ No word here of any defence she may have.

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More humanely, in the context of theft, liability depended on whether the child had sufficient understanding that it was doing wrong; infants, those under seven, by definition lacked such understanding.122 A statement of principle was finally rather clumsily produced by Alexander Severus: ‘Freedom from punishment for crimes is not granted on account of age, provided, that is, that someone is of sufficient age for the charge to be competent.’123 Further juristic writing on punishment will be considered in the next chapter, in the overall context of crime and punishment. System in weighing the gravity of a particular crime was, however, to be found in the famous text from Claudius Saturninus: There are punishments for things done, such as thefts and killings, or for things said, such as insults or false pleadings, or for things written, such as forgeries and libels, or for things counselled, such as conspiracies and the guilty knowledge of robbers; and the scale of the crime is the same for those who aid others by advice [as for the principal]. These four categories, however, must be considered in seven aspects: the motive, the person, the place, the time, the quality, the quantity, and the outcome. The motive: for example, flogging, which goes unpunished if administered by a magistrate or parent, because it is inflicted for the purpose of correction not for the sake of insult; but is punished when someone has been beaten in anger by an outsider. The person is looked at in two ways: the person who did and the person who suffered the act; for slaves and free men are punished differently for the same crimes, and differently too someone who dares to wrong an owner or parent as opposed to an outsider, or a magistrate as opposed to a private person. In considering the person, regard must also be had to age. Place affects whether the same act is defined as theft or sacrilege, and whether it calls for capital punishment or some lesser penalty. Time distinguishes someone who absents himself without leave from a deserter, and a housebreaker or daytime thief from a thief by night. Quality is when the act is either more or less grave, as manifest thefts are customarily distinguished from those which are non-manifest, brawls from highway robbery, plundering from theft, impudence from violence. . . . Quantity distinguishes a thief from a rustler, for the man who steals a single pig will be punished as a thief, he who steals a herd as a rustler. The outcome is to be considered, however inoffensive the doer – although the law punishes

122 123

D 47.2.23, Ulp. 41 ad Sab. However, the danger of taking childish lies for truth was also recognized (48.18.15.1, Call. 5 de cogn.). CJ 9.47.7, Alexander Severus.

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the man who is in possession of a weapon for the purpose of homicide no less than one who kills.124 And the jurist adds that some crimes are punished more severely in certain provinces, and that penalties may be made tougher to meet a particular problem, as when there is a serious outbreak of brigandage. Considering from what a range of various writings these juristic remarks were drawn, many of them dealing originally with matters of private law, it is clear that the compilers, and therefore Justinian, were concerned to maintain a link between moral wrongdoing and criminal liability. Because the jurists had had a casuistic rather than dogmatic approach, the compilers had to provide principles in this indirect way, but we can be sure from the very fact of compilation that these principles were intended to illustrate and exemplify the Emperor’s considered views.

124

D 48.19.16, Saturninus, de poenis paganorum: ‘Aut facta puniuntur, ut furta caedesque, aut dicta, ut convicia et infidae advocationes, aut scripta, ut falsa et famosi libelli, aut consilia, ut coniurationes et latronum conscientia quosque alios suadendo iuvisse sceleris est instar. 1. Sed haec quattuor genera consideranda sunt septem modis: [NB the philosophical terms] causa, persona, loco, tempore, qualitate, quantitate, eventu. 2. Causa: ut in verberibus quae impunita sunt a magistro illata vel parente, quoniam emendationis non iniuriae gratia videntur adhiberi; puniuntur cum quis per iram ab extraneo pulsatus est. 3. Persona dupliciter spectatur, eius qui fecit et eius qui passus est; aliter enim puniuntur ex isdem facinoribus servi quam liberi, et aliter qui quid in dominum partentemve ausus est quam qui in extraneum, in magistratum vel in privatum. In eius rei consideratione aetatis quoque ratio habeatur. 4. Locus facit ut idem vel furtum vel sacrilegium sit et capite luendum vel minore supplicio. 5. Tempus discernit emansorem a fugitivo et effractorem vel furem diurnum a nocturno. 6. Qualitate, cum factum vel atrocius vel levius est; ut furta manifesta a nec manifestis discerni solent, rixae a grassaturis, expilationes a furtis, petulantia a violentia. [A quotation from Demosthenes follows.] 7. Quantitas discernit furem ab abigeo, nam qui unum suem subripuerit ut fur coercebitur, qui gregem ut abigeus. 8. Eventus spectetur, ut a clementissimo quoquo facta, quamquam lex non minus eum qui occidendi hominis causa cum telo fuerit quam eum qui occiderit puniat. et ideo apud Graecos exilio voluntario fortuiti casus luebantur . . . 9. Evenit ut eadem scelera in quibusdam provinciis gravius plectantur, ut in Africa messium incensores, in Mysia vitium, ubi metalla sunt adulteratores monetae. 10. Nonnumquam evenit ut aliquorum maleficiorum supplicia exacerbentur, quotiens nimium multis personis grassantibus exemplo opus sit.’

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Chapter 8 CRIME AND PUNISHMENT

The Romans said very little explicitly about their attitudes to crime and its punishment. The chief information comes from philosophers – influenced of course by the Greeks – rather than jurists, from Cicero (b. 106 BC) and Seneca (d. AD 65). Their working lives cover roughly a century and a half, in which Roman society made the major shift from Republic to Empire; political realities changed drastically, but cultural assumptions do not seem to have altered significantly. Cicero, and his views were well known to and respected by Seneca and Quintilian, Tacitus and Pliny. The jurists’ views, implicit rather than express, fit reasonably well with these models, although with a distinctly more practical slant.1 But the lack of any discipline of criminology, any serious attempt to apply undeveloped concepts to the actual administration of criminal justice, explains why the stories in this book have been told at length. We have been trying to see what the Romans actually did, in order that we, rather than they, can infer any principles. The treatment of the Bacchanalian conspirators, if such they were, as described by Livy does not fit even with the views of Polybius, less than half a century later, let alone with any philosophical theories or respect for the rule of law. The rule of law is, however, visible in the trials of Roscius, Piso, and the various governors accused under Trajan. In the trials of the Christians in the later third century and the early fourth, our sources see themselves as under attack from bloodstained monsters, but where the facts come through it does seem that the rule of law was generally observed. It may be worth remarking that in no society is the rule of law always observed; politics, venality and blind ignorance inevitably pervert a proportion of cases, even in the best of legal systems. The later fourth century is harder to interpret. Was Valens’ situation so very different from that of Tiberius? It would be foolish to deny that in both periods there were genuine plots against the emperor; the atmosphere at court may not have been so different. But Tiberius ruled a tranquil 1

E.g. Ulpian’s remark about many in fact dying under torture (D 48.19.8.3).

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empire, secure in Roman dominance of the known world; Varus’ defeat was an aberration. Valens had known the defeat and death of an emperor, that of his cousin Julian in 363, and his own death in the disaster of Adrianople in 378 was soon to follow the trials recorded. A plot against an emperor in the fourth century might risk the fall of Roman civilisation; I doubt if Tiberius saw his own safety in quite such a dramatic light. Further, our efforts to find whether the rule of law was observed in this era are hampered by the fashion for high rhetoric, a rhetoric designed to advertise the user’s authority and intellectual stature. Ammianus and the Theodosian Code would be so much easier to interpret had they used plain language. The use of rhetoric had somewhat diminished in Justinian’s day, and his legal views, laying down a legal culture, were built into the Corpus. Krause seems to be right in seeing the whole imperial period as a time of fundamental lawabidingness, of an acceptance that the law applied to all – if in different ways – and, even if it was harsh, was for the overall good of all – as with the Good Thief remarking ‘for we are rightly condemned for our misdeeds’.2 We shall look first at what we have in the way of theory, and then return to the practice, before trying to state some conclusions.

The philosophy of punishment The Romans, of course, never had a problem about the basic morality of state violence, because they accepted domestic violence as justified – it was part of mos maiorum – even if they came to regulate it.3 They were conscious that the balance between humanitas (humaneness) and what was necessary for public safety was – as it still is – always shifting. An example of this balance, one familiar to us, was the treatment of homicidal lunatics; they were regarded as punished by their insanity, but for public safety they must be kept under restraint to prevent them from committing further killings.4 Similarly there was intellectual conflict between the supporters of the poena legis, the fixed statutory penalty,5 and those who wished to make the punishment fit the circumstances.6 Cicero was clear that justice required identical penalties for identical crimes, but then there was no mechanism for 2 3

4 5

6

Krause (2004), summarised at 202–05; Luke 23.39–41. Censorial disapproval might control the exercise of patria potestas, and even power over slaves. Some legal limits came to be imposed on private owners about killing their own slaves (G 1.53; later, CTh 9.12.1, 319; cf. CJ 9.14.1). There were also restrictions on family jurisdiction: CTh 9.13.1, 365 (= CJ 9.15.1). In D 48.19.6.1, Ulpian records doubts about the governor’s power to punish his own slaves – or perhaps family members – or those of his staff. D 1.18.13.1, Ulpian, citing Antoninus Pius, and 1.18.14, Macer, citing Marcus Aurelius. Always imposed in the Republic, supported by the Stoics in the Principate; e.g. Lepidus on Clutorius Priscus (Tacitus Ann. 3.50.4) or Thrasea Paetus on Antistius Sosianus (Ann. 14.48.4). XII T 8.10 and 14; Seneca, ira 1.19.5–7.

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adjustment in his day.7 In the Empire a gradation of penalties was soon accepted.8 There was fairly widespread agreement among philosophers, and those who acted under the influence of philosophy, that the prime purpose of punishment was deterrence, linked with the public safety achieved by the removal of the criminal from society.9 Aulus Gellius, writing under Antoninus Pius, quoted the Greek philosophers in giving three reasons for the punishment of crimes, of which the first was correction and reformation. The second was to maintain the dignity and esteem of the victim, in other words, a version of the maintenance of social stability. The third was deterrence, the prevention of further crimes by other persons, which might call for very harsh penalties as examples to those who might be tempted. If none of these reasons was appropriate, then neither was punishment. Plato had ignored the second reason, and saw the role of punishment as either for the sake of correction or to inspire fear.10 The theory of retaliation (talio) in the full sense as a just form of vengeance was exploded by the philosopher Favorinus in the earlier second century, not only on the grounds of the difficulty of exactly matching the injury done, but also because of the complete impossibility of equalling the intention that caused the wrong.11 Nevertheless some attempt to make the punishment fit the crime satisfied the instinct for retribution. Gellius shared an intellectual tradition with Cicero and Seneca, Tacitus and Pliny, and indeed with the jurists, whose education will undoubtedly have included an acquaintance with philosophy as well as oratory. Rewards were relevant as well as punishments to encourage virtue.12 Tertullian, Ammianus and Augustine all drew on the same tradition, even if it was angled somewhat differently for them. It is hard to know how far Tribonian shared their culture, but he does seem to have had the usual Latin rhetorical education of his day.13 Cicero made abstract statements in favour of clemency, but only where it did not affect the stability of the state,14 and stronger ones against forms of 7 8

9 10 11 12

13 14

Cicero, Clu. 46.128–29; he was speaking in contrast to the representative nature of decimation in military law. E.g. D 48.19.5.2, Ulpian citing Trajan: ‘In all charges this distinction [between the dolose and the accidental] must call forth the penalty of the law or allow mitigation.’ See also the discussion of the role of the emperors in developing penalties. E.g. Seneca, ira 3.19.2; Ps. Quint. Decl. min. 274, obiter on brigands crucified beside the road. Gellius, 7.14. Gellius, 20.1.14–18. Cf. Shakespeare’s The Merchant of Venice, and the problems of exacting the due pound of flesh. Polybius 6.14.4; Cicero, de orat. 1.43.194; inv. 1.11.14; 2.36.109; Quint. inst.or. 7.4.3. A jurist too might write that the laws desired to make men good not only through fear of punishment but also by the encouragement of rewards (D 1.1.1.1, Ulpian). Honore´ (1978), 43. See especially Bauman (1996), 35–49.

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punishment which, while the punishment itself was necessary, were such as to affront the dignity of the guilty party (contumelia). This call to avoid adding humiliation to punishment, at least among the upper ranks of society, was, as we have seen, a widespread view among our (upper-rank) sources. Tacitus located it in the free choice of death (liberum mortis arbitrium),15 something that came to be seen by the jurists as an imperially granted privilege.16 Pliny had seen the most painful feature of successful prosecutions as the downfall of a senator.17 Unjustified humiliation was the gravamen of Ammianus’ grievance against Constantius and Valens. On the other hand, disgrace, being in itself a punishment, might be deliberately inflicted, as on the failed emperor Vitellius: They bound his arms behind his back, put a noose about his neck, and dragged him with torn garments half-naked to the Forum. All along the via sacra he was greeted with mockery and abuse, his head held back by the hair, as is common for criminals, and the point of a sword under his chin so that his face must be visible.18 The views of Seneca, at one stage Nero’s tutor, writing in the later first century AD, are not so very different from those of an educated European of the earlier twentieth century. No treatment is to be seen as unduly harsh if its effect is salutary, but the ruler should aim first to reform, and hence light penalties should precede the more severe; death is the extreme penalty and a warning to all.19 Mercy is not to be seen as the norm, for the distinction between bad and good must be maintained; nevertheless, the balance should tilt slightly towards clemency.20 When a ruler seeks his own vengeance, there can be only two defensible purposes (for cruelty is always wrong), either compensation for past injury or security for the future.21 But objectively, punishment, which (for a Stoic) must always be administered impersonally and without emotion, has three possible aims: to reform the man that is punished, or by punishing him to make the rest better, or by removing bad men to let the rest live in greater security. Reform demands light punishment, for a desperate man has nothing to lose; further, severity loses its potency by over-use. Seneca distinguishes between deterrence, punishing a man to make the rest better, and public safety, putting bad 15 16 17 18 19 20 21

Tac. Ann. 6.29; 11.3.1; 16.33.2; contrast 15.60.1. D 48.19.8.1, Ulpian; it was not within the powers of a provincial governor. Pliny, Ep. 3.4.7. Suet. Vit. 17. Seneca, ira 1.6.2–4; clem. 1.14.1. Seneca clem.1.2.2; cf. Polybius 6.14.4–5. Seneca, clem. 1.21.1.

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men out of the way.22 Authority there must be: ‘While a Caesar needs power, the state also needs a head’,23 but the public interest must guide the administration of criminal law. Since all men have sometimes done wrong, and so there is no clear dividing line between the good and the bad, there must be a gradation of penalties to fit the nature of the offence and of the offender.24 Seneca, like other Roman thinkers, does not ever focus on the victim of the crime; to some extent, any punishment was retribution. It seems safe to say that the works of Seneca will have been known to every jurist, read as part of his general education, but Seneca’s principles were not necessarily followed. No other pagan philosopher wrote significantly on what we would understand as theories of punishment. The most important related notion that appeared in the later Principate was probably the concept of public discipline, almost an updated mos maiorum.25 In the Christian period, it is possible that the fear of hell, or the fear of God – a constant biblical phrase – and an acceptance of universal unworthiness before God may have tended towards a harder line on punishment. If we are all sinners, we all deserve punishment, and mercy is something to be left to God. This attitude may have combined with the fervour of rhetoric to keep the notion of retribution in the forefront of penal theory. However, we also find accepted the need to give the criminal an opportunity for penitence – as was later to be true for the Inquisition. While nobody in this later era follows Seneca’s stress on clemency as the filter through which to interpret the criminal law, there remained a range of philosophic attitudes. St Ambrose praised governors who avoided bloodshed,26 although St Jerome seemed undisturbed at the infliction of the death penalty for adultery.27 St Augustine, writing in the early fifth century, objects, not to the infliction of pain, but to its infliction upon the innocent; nevertheless, he pleaded on behalf of certain Donatists that their punishment should be less than their crime.28 But in the Later Empire, as earlier, there was need for lawful authority, whether of God, the emperor, or the paterfamilias. Punishment was necessary for social life, but the Church was there to intercede for the humble; bishops, with their pleas for mercy, were part of the machinery of justice. There were also general amnesties for lesser criminals;29 clemency was still an imperial function.

22 23 24 25 26 27 28 29

Seneca, clem. 1.22.1–2. Seneca, clem. 1.4.3. Seneca, clem. 1.6.3 and 1.14.1; ira 1.16.2–3. Robinson (1992b), 208–09. Ambrose, Ep. 25; cf. Swift (1970). Jerome, Ep. 1. Augustine, CD 19.6; cf. Ep. 133: he praised the governor for using only minor torture, not the horse, or the claws, or the flames, but only a beating to discover the facts. Robinson (1999).

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Penalties in Republican Rome The traditional penalties of early Rome had been harsh. In the Republic, execution more maiorum meant being tied to a stake, perhaps with the neck in a fork, and beaten to death.30 The lictors of magistrates with imperium carried an axe to indicate the power to inflict death. Strangulation in the carcer was also traditional,31 as for certain crimes was hurling from the Tarpeian Rock, although this was probably viewed as more appropriate for slaves; slaves, at least by the later Republic, were regularly crucified. Crucifixion was considered the ultimate punishment, referred to by Cicero as the most cruel and disgusting penalty.32 Some have thought that lapidatio (stoning) was an archaic penalty, because it was a communal act.33 There were some specific death penalties in the Twelve Tables of the mid-fifth century BC.34 Stealing crops at night meant death for an adult, hung up to Ceres.35 One who deliberately set fire to a building or a heap of corn adjoining a dwelling was himself to be burned.36 A thief by night could lawfully be killed, and one by day if he defended himself with a weapon;37 a slave manifestly caught in the act of theft was to be hurled from the Tarpeian Rock.38 Yet the Twelve Tables drew distinctions; they allowed the reduction of penalties for those under puberty, or for those who did not intend to do wrong, and they also accepted the principle of self-defence.39 In practice, however, suicide or departure into exile seem to have been the most common courses of action taken by those faced with a capital charge, although there are occasional dramatic stories where death was the penalty. In 386 BC the Manlius who had held out in the Capitol against the Gauls was condemned for aspiration to tyranny, and the tribunes hurled him from the Tarpeian Rock.40 In 331 BC the Senate held an inquiry into the conduct of certain noble ladies who were allegedly plotting to poison their husbands and other leading men. Challenged as to the nature of their concoctions, twenty of them drank off the potions and perished on the spot; a further

30 31 32 33 34 35 36 37 38 39 40

Cicero, Rab. Post. 16; Suet. Nero 49.2. It was, for instance, inflicted on the Catilinarian conspirators (Sallust, Cat. 58). Cicero, 2 Verr. 5.64.165; cf. Jos. BJ 7.203; see also Hengel (1977); Garnsey (1970), 126– 29. Ferrini (1902), 10. Much, much, later, Amm. Marc. 29.3.5, reports a strator stoned to death on the emperor’s order. Gellius, 20.1, reports a discussion between the philosopher Favorinus and the jurist Africanus on the severity of the XII Tables. XII T 8.9 and 24b, ‘suspensum Cereri necari’, cited by Pliny, HN 18.3.12. XII T 8.10, cited by Gaius, D 47.9.9. XII T 8.12–13. XII T 8.14, cited by Gellius 11.18.8. XII T 8.9; 8.14; 8.10; 8.24a; 8.13. Livy 6.20.

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170 were condemned to death, and presumably dealt with by their families, but this is not made explicit.41 Then, as we have seen in chapter 1, in 186 BC there was the Bacchanalian affair. Even if we do not believe the figure of more than 7,000 put to death, the capital penalty was clearly widely inflicted, although we know nothing of the method. Strangely, there is no trace of the sacral or expiatory approach. Men and women were executed, or held in prison, for what they had done and what they might do, not for offending the gods of Rome; the pontiffs and sacral law seem to have played no role in the Senate’s proceedings, in spite of the crime being at least partly religious. In this affair there was no trace of a criminal jurisprudence, of any theoretical justification of punishment. It was too early for Greek philosophical theories to be influencing the ruling classes; after all, philosophers were to be expelled from Rome in 161 BC. There was no due process either. Polybius, writing around 140 BC, tells us that Roman usage allowed those on trial for their lives before an assembly (iudicium populi) liberty to depart openly, thus inflicting voluntary exile on themselves, if even only one of the tribes (recte, centuries) that pronounced the verdict had yet to vote.42 Since this statement was made only some forty or fifty years after the Bacchanalian affair, it is somewhat remarkable that Livy makes no moral comment on the putting to death of so many persons, including so many from the upper classes, particularly when, in the middle Republic, ‘there is no known instance of a man being condemned in a trial before an assembly on a capital charge’.43 It seems that the death penalty as a result of condemnation in an ordinary criminal court was seldom inflicted on citizens in the later Republic, although the statutory penalty of the standing jury-courts44 was in most cases technically a death sentence, until Julius Caesar made it formally a matter of exile, with interdiction from fire and water. This was, however, a ‘capital’ penalty, for the person convicted lost his caput, that is, his head was no longer counted among the citizens, and citizens, even after Caesar’s extension of the citizenship to all of Italy, were still privileged. Nevertheless, for the citizen Republican penalties were in general extraordinarily mild by the standards of the Empire,45 but they seem to have been severe enough to keep society stable until the civil wars of the last century of the Republic. Because of the seriousness of the crime charged, parricide, it is possible that Sextus Roscius junior did face the real possibility of being put to death 41 42 43 44 45

Livy 8.18; ep. 8. Livy described the affair as so extraordinary that it was more a prodigy than a crime. Polybius 6.14.7; cf. Robinson (2004). Lintott (1999), 161. See ch. 2 for an outline of the system of standing jury-courts. As a comparison, in 1833 A. Alison could write (Practice of the Criminal Law of Scotland (1833, Edinburgh), p. xxvi): ‘there are not above eight or nine persons executed annually in the whole kingdom [of Scotland].’

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by the penalty of the sack. But he was not a confessed parricide, and it may be that, had he been convicted, he would have met only the normal sentence under the lex Cornelia de sicariis et veneficis, and been able to go into exile. It was in his – and Cicero’s – interests to stress the dreadful penalty and excite the jurors’ pity. And we know from pro Cluentio that someone of equestrian rank sentenced, for attempted poisoning, to the normal penalty of the lex Cornelia, and theoretically in exile, might still, if he benefited like Oppianicus from some public sympathy, remain in Italy, although not venturing into Rome.46 For senators a sentence of exile was political death, but it left them alive to enjoy, like Milo, the excellent mullets to be found in Marseilles.47 Outside the legal system were the public spectacles involving the deaths of many: criminous slaves, prisoners of war, bought gladiators.48 Such events mostly have their roots in the mid-Republic, but their scale and effect increased greatly in the last fifty years of the Republic, although the Marian and Sullan proscriptions had something of the orchestrated exhibition about them. Triumphal processions usually involved many deaths; Pompey’s generosity in releasing his prisoners was remarked.49 The hunting games (venationes), first held in 186 BC, deliberately involved human as well as animal deaths; they were included in the vast triumphal shows of Pompey and Caesar. Then there were the munera, the shows where gladiators fought in honour of the dead, put on by Caesar (with 320 pairs), and many others, especially his successors. When Caesar gave games as aedile in 65 BC, this, according to Pliny the Elder, marked the first appearance of noxii (but this need not include citizens) in the arena as opposed to perditi.50 At the naumachiae, the staged sea battles, favoured by the Julio-Claudians, thousands of such non-persons died. Mock land battles were also fought, again entailing the deaths of thousands. These are undoubtedly the origins of formal, legal condemnation to the beasts or the hunting games, and of the staging of executions in an amphitheatre or circus rather than somewhere smaller or less accessible. Such spectacles became in the Empire a part of the penal system while retaining their character of public shows, provided for the entertainment of the public and the glorification of the giver through the massive shedding of blood. One must, however, also remember that public execution has some justification in contrast to secret acts of authority, as well as being a more effective deterrent.51 46 47 48 49 50 51

Cic. Clu. 62.175. Dio Cassius, 40.54.3. See generally Kyle (1998). Appian, Mith. 117; cf. Jos. BJ 7.154. Pliny HN 33.16.53; noxii are criminals, perditi life’s losers. See, e.g. Ps.-Quintilian decl.maj. 9.21 on gladiators as bad characters. As A. Alison wrote in Some Account of my Life and Writings: an Autobiography (1883, Edinburgh), I 477: ‘When [sentence of death] is carried out it should be with the utmost solemnity, and in the most public manner. Private execution in prison is pure judicial murder; for it is unattended with the only circumstance that can justify the taking away of life – the exhibition of an example which may deter others.’

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What we simply do not know, hardly even in brief glimpses, is what penalties were imposed on ordinary criminals, and on what legal basis. Punishment of such offenders will have been somewhat less of a problem for the ancient Romans than for us, for at least two, linked, reasons. Delict, with its remedy of reparation, covered many areas that we would nowadays view as crimes, in particular theft but also assault and defamation, and malicious damage to property. Much petty crime, it seems safe to say, will have been committed by slaves. When a delict was committed a slave owner was noxally liable for his or her slave’s action; victims will thus have had a better chance of compensation from the wrongdoer than is likely in the modern world (which relies on insurance), and most would presumably prefer this path to that of vengeance. Further, there is no doubt that slaves, and foreigners, caught in the act of thieving could be summarily flogged, or even executed; this was one of the main functions of the tresviri capitales.52 The problem is what happened to citizens committing street crime; as citizens they were in law protected from summary flogging, and a priori from summary execution. There is nothing, however, in what we hear to suggest that protection was effectively available in such cases, since one can safely assume that the tribunes would withhold their auxilium; the shelter of the lex Porcia may in practice have been unobtainable. My guess is that persons caught in street crime were presumed, presumed from the very nature of their behaviour, not to be citizens, and were thus liable to the disciplinary powers, the coercitio, of the tresviri, unless they could make a very convincing case for themselves. Crime other than street crime, or where the political implications led to an assembly trial, may usually have been dealt with domestically in the early and mid Republic, and in the late Republic the introduction of the quaestiones perpetuae covered most major crimes. Nevertheless, there is a substantial gap in our knowledge.

The growth of the death penalty: punishment in the Empire In the Principate the actual infliction of death, even on citizens, became normal, although the upper ranks more commonly suffered deportation. Various factors probably explain this shift. The growth of the City’s population seems likely to be one, and also the steady increase in numbers of citizens, and proportionately of criminals; there was more need to remove criminals permanently from the public scene. On the other hand, permanent restoration of a peaceful society may have meant higher expectations of the repression of crime.53 The constitutional change from Republic to Empire 52 53

See Cascione (1999); also Santalucia (1999). Krause (2004), already cited, on the normality in the Roman world of taking the legal route to deal with crime, unlike the unregulated medieval and early modern periods.

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probably led to a more consistent exercise of authority, and as all provinces came, directly or indirectly, under imperial control, the emperor’s disciplinary role as (metaphorically) father of his country grew more prominent. The clearest example of this tendency is the criminalization of adultery, at the same time combined with a prohibition on an aggrieved husband’s killing his wife, in Augustus’ lex Julia; domestic jurisdiction was clearly deliberately diminished. Further, other courts came to rival the ordo, courts exercising therefore, an ‘extra-ordinary’ jurisdiction, which we conveniently if inaccurately know as cognitio.54 In the City the Senate and the Urban Prefect exercised a new criminal jurisdiction, and in the provinces the governor’s role became increasingly more judicial and less military; iudex became his normal title. Drawing their authority ultimately from the emperor, the new courts were not restricted to the penalties laid down by the statutes establishing the ordo, but had discretion to mitigate or aggravate the fixed penalties.55 A gradation of penalties was established, the system described in the Digest. And, increasingly replacing the traditional citizen or non-citizen distinction, there developed the contrast between honestiores and humiliores; slaves naturally always remained at the bottom of the heap.56 For the upper ranks this change took a long time to come into effect. Retribution and deterrence – because dignity was preserved – do not seem to have been seen as appropriate motives for the punishment of senators; the humiliation of loss of status was bitter, but dignified, internalized. Piso, in spite of his undoubtedly treasonable activities, was not even under housearrest at the time of his trial. His suicide may have been encouraged by the emperor; it was certainly a good Stoic way to go. As a senior senator, and of noble family, he was not subjected to any humiliation, other than that of having to stand trial.57 Tiberius was no bloodthirsty tyrant in this case. Marius Priscus was sent into permanent exile, banned from Rome and Italy, for extortion accompanied by brutalities; he was therefore punished severely, but by no means in the measure of what he had inflicted, while his legate was allowed to remain a senator, although excluded from any active exercise of office.58 Caecilius Classicus preferred suicide to prosecution, while others 54 55 56

57 58

On the decline of the standing jury-courts, see ch. 3. On the rise of the Senate as a criminal court, see chs 3 and 4. On the role of provincial governors, see ch. 5. D 48.19.11pr, Marcian; 48.19.13, Ulpian. Cf. Seneca, ira 3.32 and 35; clem. 1.18.1–2. Slaves could be condemned to be held in chains, whether in perpetuity or for a fixed period; in this case they remained in the same ownership as before their condemnation. It was not legally possible to condemn slaves to forced labour, presumably because that was their position anyway, but they could be condemned to the mines or the hunting games, as well as to death (D 48.19.8.4–13, Ulpian). Tac. Ann. 3.10–15. Pliny, Ep. 2.11.19; 2.12.2.

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who had shared in his misdeeds were relegated for varying terms of years.59 Julius Bassus was another who retained his seat in the Senate, although condemned to make reparation, and his acts as governor of Bithynia were rescinded.60 Atticinus was merely relegated to an island for such serious crimes as making a charge against his superior, falsifying official documents, and diverting against his superior an accusation made against himself.61 Suicide, enforced by the emperors or freely chosen, was a common fate for senators in the early Empire; it meant death, true, but it was death without loss of dignity, death normally without infamy, death without ill consequences for the victim’s family. These were matters very important to the upper ranks of Roman society, to the movers and shakers in the administration and development of law. It was what was meant by a ‘free choice of death’. It must be significant that deportation and relegation, penalties imposed only on the higher ranks of society, were dealt with in the Digest in a title separate from that simply on punishments, de poenis.62 Deportation, which was of its nature perpetual, was a capital sentence, in that it involved loss of citizenship, and usually total confiscation of the condemned’s property.63 Relegation, which could be perpetual but was frequently for a fixed period, preserved citizenship; it was normally accompanied by a fine or partial confiscation.64 It could mean exile to an island or other fixed place, or merely a ban on the convict’s remaining in his own province or in Rome.65 These punishments for the upper ranks are a simple development from the Republican state of affairs; death or exile from Rome was the statutory penalty of the quaestiones perpetuae, with fines or compensation where appropriate. But early in the Empire other penalties began to appear. Exile to a fixed place and condemnation to forced labour are both found in the reign of Tiberius, but we do not know if he introduced them, and for what class of person. He sentenced many of the magistrates as well as members of the plebeian population of Pollentia, in Liguria, to perpetua vincula after a riot. He condemned one equestrian in antliam (a water treadmill) – we do not know the legal pretext, but Suetonius says it was because he was a friend of Livia – and threatened another with vincula.66 Of Caligula we are told that he had men of status (honesti) tattooed and condemned to the mines or to forced labour, or to the beasts. More specifically, an eques was sent to the 59 60 61 62 63

64 65 66

Pliny, Ep. 3.9.5 and 12–18. Pliny, Ep. 4.9.18–19; 10.56.4. Pliny, Ep. 6.22.5. D 48.22 and 48.19. D 48.22.6pr, Ulpian; 48.22.15, Marcian. Only transactions of the ius gentium were open to deportees, of which the chief consequence was that they had no capacity to make or take under a will. D 48.22.4, Marcian. D 48.22.5, Marcian; 48.22.7pr, Ulpian; 48.22.18pr, Call. Suet. Tib. 37; Tib. 51 and 57; see also Chauvot (1999).

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beasts, after having had his tongue cut out when he complained at the sentence (presumably at the indignity of this fate); furthermore, because of a double entendre, a writer of farces (but was he a citizen?) was burned alive in the arena.67 Claudius, motivated, credibly and even creditably (had it not been for his whimsicality and proneness to instant rage – he had the hands of a forger amputated directly on the conviction68) ex bono et aequo, both softened and harshened the penalties of the statutes; exceeding the penalty of the law, he condemned to the beasts those convicted of more wicked crimes. He extended a governor’s interdiction of a condemned man from his home province to cover exclusion from Rome and Italy, and in some cases, rather than excluding someone from Rome, he confined him to the City and 3 miles around it.69 There were also executions more maiorum, of offenders tied to a stake and flogged to death, and parricides were sacked; traditional penalties, but previously very rarely used.70 Under Nero, after a riot in Jerusalem in AD 66, Florus the procurator scourged and crucified many, including Jewish equites, but this was surely seen by the authorities as not merely sedition but treason.71 Senators were put to death in Nero’s reign, but they seem, in their deaths, to have been allowed their dignity. Nero was also practical; those in custody throughout the Empire, even those convicted of serious crime, did not receive the sentences imposed but were brought to Rome to work on his building programme.72 Domitian is on record for many domestic or arbitrary cruelties;73 in particular, we are told that he once had a paterfamilias dragged from his seat at the arena and thrown to the beasts – in this case dogs – for a comment on the gladiators which displeased the emperor. Nevertheless, as far as ordinary men, at least in the provinces, saw his reign it was as a time of good order. Since we know that the change to a wider range of penalties and a greater use of discretion in their administration had certainly come into effect by Trajan’s reign, it is a question of whether this was just gradual, or can be ascribed to any particular emperor. It seems to me that such innovations became systematic in the reign of Claudius.74 We are told that he was unusually conscientious about the exercise of jurisdiction; further, both his innovations and his antiquarian regressions are to be found as normal in later penal law, unlike the individual cruelties or experiments of other emperors. We can therefore accept that the emperors, and particularly Claudius, as a matter of policy developed the penal law as regards ordinary criminals on 67 68 69 70 71 72 73 74

Suet. Cal. 27. Suet. Claudius 14–15. Suet. Claudius 23; cf. D 48.22.5, Marcian. Suet. Claudius 34. Jos. BJ 2.308. Suet. Nero 31.3. Suet. Dom. 10–11, and his spectacles included women fighting (Dom. 4). Robinson (1998).

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the pattern to be found in the Digest. The discretion always enjoyed by those judges exercising cognitio could allow further experimentation. The sentences on the Christians in the Acta Martyrum are somewhat different, partly because by definition, in dealing with martyrs, they are describing people who were put to death; furthermore, again by definition, none of the protagonists was seeking an acquittal. Here we read of dark prisons and of agonising tortures, inflicted to make the victims change their minds and conform to the religion of the state. Their deaths were sometimes deliberately prolonged or painful, but more often consisted of simple decapitation. Further, sexual humiliation was sometimes specifically imposed on women who vaunted their chastity. (In view of the condemnation of women to the service of the miners, there is no reason to doubt the occasional condemnations to the brothel, as in the case of Irene, one of the companions of Agape.75) The Christians came predominantly from the lower orders of society, people not shielded by their rank. Their fate was much closer to that of common criminals. Even so, there is almost no mention in these Acta of the kind of wanton cruelty employed in the earlier Principate, no rape by an ass, no ‘fatal charades’.76 Such practices were still known to Tertullian, writing at the end of the second century,77 but they may already have been somewhat discouraged by Marcus Aurelius. However, the aggravated death penalty had come, it seems, by the beginning of the third century to include death by torture; this was hardly illogical if the deliberate infliction of pain was part of the intention behind the sentence, although it did not fit with earlier views. Techniques of torture, which had been used as tools of the criminal process for interrogation and the exaction of confessions, became methods of punishment, quite contrary to the opinions expressed by the jurists. This perhaps explains why, in the Digest, the title on torture immediately precedes that on punishments, because for the compilers the boundary had become blurred.78 Indeed, it was in the final stages of the ‘great’ persecution that Maximin Daia introduced mutilation as a deliberate punishment, as an alternative to the death penalty, a punishment which was arguably more humane.79 Under Justinian, mutilation, specifically the amputation of the limbs, was regulated,80 and 75 76

77 78 79 80

ACM, Agape et al, 5–6; cf. ACM, Pionius, 7. Apuleius, Met. 10.22–23, 29 and 34; Coleman (1990); Vismara (1990). The nearest seems to be the attempt to dress Perpetua and her companions in the robes appropriate to priests of Saturn and priestesses of Ceres (ACM, Perp. 18). The games were becoming banal. Tert. Ap. 15.4, which dates from around 197. Cerami (1991). Eusebius, HE 8.12.10. NovJ 134.13; cf. Manfredini (1995). Other legislation included NovJ 128.20, 545, giving a governor’s deputy full powers, except to order the death penalty or the amputation of a hand; cf. NovJ 42.2.2, 536, with amputation of a hand for writing out heretical opinions.

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castration, an illegal act, was punished by castration.81 Interestingly, in view of the Roman tradition of denying burial to enemies and the anti-social, we frequently find that Christians were allowed to take away the bodies or ashes of the martyrs for a seemly funeral.82 In the Later Empire the problem of governance was exacerbated in one sense by the very changes made to make it more effective, that is, the move towards a more hierarchical control through Praetorian Prefects and the Vicars of groups of provinces and away from larger relatively independent provinces. The impossible attempt to exercise direct imperial control everywhere through the bureaucracy – overworked term though that is – must have contributed to the shrill tone of fourth- and fifth-century criminal legislation, and the attempts to terrorize the population into good behaviour by threats of torture and harsh penalties. There were also, of course, problems arising from barbarian invasions, civil wars and military revolts, natural catastrophes, economic difficulties and manpower shortages, usually worse in the Western than the Eastern parts of the Empire. The successful Germanic settlements in the later fifth century and thereafter may well have made the remainder of the Empire easier to govern. The tone of Ammianus’ descriptions of interrogations, tortures and executions may have been exaggerated for rhetorical effect, and intended to stress the savage fears and cruel rages of certain Christian emperors. Nevertheless, he does describe men of high rank being tortured, tried arbitrarily with no opportunity to make a defence, and executed for relatively minor offences. The numbers affected may be smaller than he wishes to imply, although more seem to have perished than in the treason trials recounted by Tacitus, but it is clear that the privileged classes could no longer rely with confidence on their rank to protect them, or even to ensure due process. Perhaps, however, the episode which best represents the spirit of the age is the burning to death of the executioner who led a Roman matron, condemned for adultery, naked to her death.83 The Roman social order was indeed being subverted, and not in the interests of principle, of equality of treatment, but because the emperors cared little for the claims of senatorial families, and saw their own nominees as dependants to be punished for any failure in obedience or even respect. Christianity seems to have been a mixed blessing as the official religion of the Empire. It may well have led to the strengthening of superstition (in contrast to the fairly sceptical attitudes of Cicero or Seneca) and a renewed fear of a magic now based on more intellectual foundations. And yet at the same time there was legislation aimed at ensuring due process, and at checking the arbitrary exercise of power by officials. As so 81 82 83

NovJ 142. In contrast to the (entirely legal) treatment of the bodies of those executed as a consequence of Sejanus’ conspiracy (Tac. Ann. 6.19). See also Kyle (1998), 132–33. Amm. Marc. 28.1.28.

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often, it is a contradictory picture, although the tone of the legislation does something to support the historians’ representation. It was also a period when controls designed to make prisons more humane are introduced; prison was probably relatively less terrifying than it had been earlier. Also, time served in prison now counted towards the sentence. Justinian, as we have seen, reflected this ambivalence. He took a relatively enlightened attitude towards women, and he replaced physical penalties with fines; on the other hand, he condoned impalement, preserved the habitual use of torture on slaves, and never questioned the institution of slavery.

Law and general ideas of punishment Crimes as such, the substantive criminal law, did not really change much between Cicero’s day and the Enlightenment. For the Romans the heinous crimes were treason, adultery, and murder (especially by poisoning), which could be linked with magic arts and potions; they became officially unpardonable in the Later Empire.84 There can be general agreement that these were, and are, undeniably serious crimes, even if adultery has long ceased to be seen as petty treason. Yet ideas about punishment have changed, although not dramatically until the last couple of centuries. Deterrence, public safety, retribution, reform, social stability: there is no reason to doubt that the jurists were aware of these justifications of punishment, but as jurists their task was to administer rather than comment on the law. Their debates were concerned with the definition and interpretation of existing legal principles, statutory or jurisprudential, rather than with wiping the slate clean and hypothesising an ideal. Only occasionally does one find a revolutionary remark, such as Ulpian’s comment that a husband should only be able to bring an accusation of adultery if he himself has lived a chaste life;85 this was very clearly not part of the communis opinio. There was some overt acknowledgement of retribution in Roman legal sources; hence the element of penalty as well as reparation in delictual actions.86 Robbers might be executed where they had plied their trade and killed their victims for simple retributive reasons – to console the latter’s kin and neighbours – as well as for deterrence.87 There were some strands of thought that looked towards reformation. Paul wrote that the heirs of criminals were not criminally liable because ‘punishment exists for the 84

85 86 87

Robinson (2001a). It is not a list so different from the traditional four pleas of the Crown in Scotland, treason, murder, rape, and fire-setting; moreover, the crime of witchcraft was only abolished with effect from 1736, 9 George II, c.5. D 48.5.14.5, Ulpian. G. 4.6–9; Inst. 4.6.18–19. D 48.19.28.15, Call.: ‘ut et conspectu deterreantur’ and ‘et solatio sit cognatis et adfinibus’. Seneca disapproved of retribution or revenge, ira 2.32.

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correction of men’, and once they were dead this was clearly no longer relevant.88 We find the same reformist objective in certain of Justinian’s Novels.89 It is not altogether easy to see the purpose of the punishments inflicted on the Christian martyrs – they were hardly deterrent, even if they prevented the martyrs continuing to practise Christianity; presumably they too were aimed at reformation, turning the Christians into decent worshippers of the Roman gods. Seneca’s maintenance of the desirability of a slight tilt towards clemency rather than strict justice was echoed in the Digest. Paul wrote that ‘In criminal matters the more favourable interpretation should be taken’ and it was also held as a general principle that, in interpreting the laws, penalties should rather be softened than harshened.90 Trajan laid down that in criminal cases persons should not be condemned in their absence, and neither should they be condemned on suspicion – presumably where absent – for it was better to let the guilty go unpunished than to condemn the innocent.91 Should accused slaves not be defended by their owners, they were not to be summarily led to punishment but could be defended by some third party, and the judge was not to presume them guilty but to inquire into their innocence.92 Reasonableness (moderation) must be observed in sentencing, even though the judge in cognitio had discretion to aggravate or mitigate a penalty.93 Antoninus Pius laid down that persons condemned to the mines who became unfit to work through sickness or age might be released, provided they had served at least ten years and had family to be responsible for them.94 Torture is by definition the deliberate infliction of pain, but legal or judicial torture is towards an end, confession or evidence. The jurists seem to have aimed to control its use, if at least partly because of its unreliability.95 Hadrian wrote that nobody should be condemned for the purpose of putting him to the torture.96 A pregnant woman was not to be put to the torture, or executed, until after the birth of her child.97 Ulpian had also written: ‘The prevailing view is that it is the duty of the judges to weigh 88 89

90 91 92 93 94 95 96 97

D 48.19.20, Paul: ‘poena constituitur in emendationem hominum’. NovJ 25.2.2; 141.1; compare the removal of the prostitutes to a convent. Honore´ (1978), 10, has pointed out that there is no doubt that Theodora, after a licentious youth, did repent, or at least reform her way of life, and become a chaste Christian consort. D 50.17.155.2, Paul; 48.19.42, Hermog.: ‘Interpretatione legum poenae molliendae sunt potius quam asperandae.’ D 48.19.5pr, Ulpian: contumaciously absent defenders could, however, have judgment pronounced against them, as long as the sentence was not capital. D 48.19.19, Ulpian. D 48.19.13, Ulpian. D 48.19.22, Mod. D 48.18.1.23–4, Ulpian, and see the discussion in ch. 5. D 48.18.21, Paul. D 48.19.3, Ulpian. This was observed in the case of St Perpetua’s companion, St Felicity.

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the degree of torture; for the interrogation should be so conducted that a slave survives, whether for acquittal or punishment.’98 A considerably later jurist wrote that torture should not be inflicted to the accuser’s satisfaction, but only as far as was reasonable.99 The jurists took a bleaker if perhaps more realistic view than the philosophers, but they were well aware of the arguments against the proponents of the ‘hang – or flog – ’em all’ school. And Justinian deliberately preserved their views. What is quite clear is that there were always graduated penalties, graduated according to legal status or social rank: ‘Our ancestors, whatever the punishment, penalized slaves more severely than freemen, and notorious persons more than those of unblemished reputation.’100 (The weight of someone’s evidence depended similarly on rank and reputation.101) The aggravated forms of death penalty were deliberately brutal; simple death by decapitation seems normally to have been without humiliation or unnecessary pain, as the death of Cyprian evidenced. Deportation or the mines, relegation or forced labour, fines (or loss of rank) or beatings, these made up the normal list of penalties less than death. When someone of the upper ranks committed a crime deserving of the severer scale of punishment, his case must be referred to the emperor.102 Prison as such was not a usual penalty, although fetters might be a sentence on slaves, but condemnation to forced labour while held in custody seems very close indeed to prison with hard labour.103 As seen by the jurists, the range of penalties was sufficient to deal with the range of crimes; penalties were also graduated according to degree of guilt.104 It was a harsh world, but that harshness has really only changed in the last couple of centuries; it is a very modern view to see as cruelty a deserved punishment which involves the deliberate infliction of pain.

Summary The Twelve Tables of the fifth century BC reveal a nuanced legislation; distinctions were drawn between dolus and casus, between the fully responsible and the child. Since they were the foundation of Roman law, these rules cannot have been forgotten. But fear of the unknown, fear of the secret, the 98

D 48.18.7, Ulpian; an unsuccessful accuser would be liable for the value of any slaves who died under interrogation (48.18.6pr, Papinian). 99 48.18.10.3, Arcadius Charisus: ‘non quanta accusator postulat, sed ut moderatae rationis temperamenta desiderant.’ 100 D 48.19.28.16, Call. 101 D 22.5.3pr, Call. 102 D 48.19.2.1, Ulpian; 48.19.27.1–2, Call. 103 For an assortment of views, see Lovato (1994), Krause (1996), the essays in BertrandDagenbach (1999). 104 D 48.19.5.2, Ulpian citing Trajan; 48.19.11pr and 2, Marcian.

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uncanny, could overthrow such safeguards, as we see in the Bacchanalian affair of 186 BC and in the trials under Valens of AD 371–72. These, however, were not policy so much as reaction. In the other cases considered in this book it is reasonably apparent that the rule of law is usually recognized and due process generally followed. The penal policy of the late Republic and Principate makes clear that criminal misbehaviour in the upper ranks was deplorable, but could be treated, almost, as a series of unfortunate incidents, not tearing the fabric of society. At the same time the governing classes were encouraging the populace to enjoy public bloodshed on a large scale, enhancing social solidarity among the citizen body by putting to death non-persons, such as prisoners of war, insolent slaves and rebellious subjects. It is to be remembered that human rights cannot exist in a society with widespread slavery. Both the governing and the governed classes became used to punishment as entertainment, to the humiliation of the losers. The practice of imposing such penalties bore virtually no relation to the arguments put forward by the philosophers, and the more muted caution of the jurists. The policy behind this approach was social cohesion rather than legal nicety. The Empire, from its origins, inevitably brought in more social controls. The rule of one man demands an obedience and loyalty very different from that due to magistrates who have achieved their (temporary and collegiate) position through competitive (sometimes bloody) jostling among the members of the Senate. As jurisdiction came to be exercised normally on behalf of the emperor, and as appeal was introduced, the emperors aimed to contain their subjects, and the concept of citizenship faded, until in the Later Empire Romanitas was a cultural rather than legal concept. The jurists reveal the workings of the imperial mind, but no emperor, not even the philosopher Marcus Aurelius, ever seems to have sat down, or set up a working party, to produce a report on crime and punishment as such. To a considerable extent penal policy was reactive. This must explain the frantic tone of the Later Empire when the barbarians were habitually a serious threat, often on several fronts. Penal practice does not seem to have changed significantly in nature, even if a wider proportion of the population might come to be at risk of incurring punishment (as illustrated by the gloomy fates discerned by the astrologer, Firmicus Maternus). The contrast between his world view and that of Apuleius, whose second-century Golden Ass (Metamorphoses) records dangers and crimes enough and yet with a certain gaiety and hope, is striking, and I think not only due to the different genres. We must dismiss the notion that the actual modes of death imposed were any more cruel in later than in earlier times. The proscriptions of 82–81 and 43–42 BC show appalling savagery within the Republican senatorial class itself; the treatment of Spartacus and his followers,105 or of the Christians 105

Appian, BC 1.14.120.

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after the Great Fire in AD 64,106 was brutal in the extreme. Martial’s description of the bloody games given by Titus shows that, at least for those condemned ad bestias or in ludos, there were no restrictions on the public executioner’s imagination.107 Barbaric methods of execution, torture,108 indifference to human suffering mark the practice of Roman penal law at all periods.109 Unfortunately Roman penal as well as civil law was absorbed into the medieval West and its successors; without doubt, in the field of criminal law, Natural Law and the Enlightenment provided a necessary but belated corrective. While the rule of law, due process and civic rights were principles deeply ingrained in the Romans, they were seen as quite compatible with a lack of equality before the law, whether for women, or plebeians, or freed persons, or peregrines, and with a complete absence of legal rights for slaves. Due process was normally offered to peregrines and slaves, as trials in the New Testament and the Acta Martyrum show, but this was based more on the concept of noblesse oblige, on the behaviour the Roman upper classes felt incumbent on themselves, than on any right; the concept of individual, of human, rights as opposed to the rights of a citizen did not exist, and was not to exist until the twentieth century. The French constitution gave rights to man as citizen (and therefore women were second-class) while the American constitution embraced slavery without a qualm, not identifying black people as citizens. One might even argue, with tongue only slightly in cheek, that these late eighteenth-century developments reflected a return to the liberties known to the Romans of the Republic and subsequently lost.

106 107

108 109

Tac. Ann. 15.44. Martial de spectaculis, and in contrast the comment: ‘nec auctor posthac [becoming pontifex maximus] cuiusquam necis nec conscius’ (Suet. Titus 9); those dying deserved to die, so they didn’t count. For example, consider Sassia’s treatment of her slaves (Cicero, Clu. 66.187). See also Cerami (1991); cf. Harries (1999), 122–34; MacMullen (1986a). It also seems probable that, in contrast to our modern susceptibilities, the regular practice of animal sacrifice (Jewish, remember, as well as pagan) inured the population of the ancient world to the sight and smell of blood, to the notion of slaughter.

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GLOSSARY

This Glossary is designed to explain quickly those words which may be unfamiliar; however, it does not replace the Index. The use of a classical dictionary is recommended for the more important institutions; Berger (1953) would be ideal, but is not so widely available. The explanations relate to the periods covered by this book, and to its theme, the criminal law. album the list of potential iudices (judges/jurors) for the standing jurycourts, drawn up annually by the Praetor. assemblies of the Roman people: v. iudicia populi. auxilium, tribunician: the right and duty to bring aid to any unjustly afflicted citizen, one of the powers of the tribunes of the people, acquired by the emperors; there was discretion as to its exercise. capital – as in offence/punishment: something putting at risk not only someone’s physical life, as in modern usage, but also his (or her) civic life by status loss – capitis deminutio. clarissimi v. status. Code: Justinian’s: v Corpus Iuris Civilis; Theodosian: of AD 438, a collection of imperial legislation since Constantine. See ch. 7. coercitio the power of a magistrate or official to enforce his orders in his sphere of office; it had a much wider range than our contempt of court, for it was applicable to offenders against public order. cognitio the exercise of jurisdiction outside the ordo, q.v.; single-stage forms of court procedure. compilers the committee of lawyers appointed by the Emperor Justinian to compile the Corpus Iuris Civilis. consilium a council to give counsel, whether within the family, or to someone holding office, or to the emperor. Corpus Iuris Civilis Justinian’s collection of legal sources, comprising his Code (534), the Digest (533), and the Institutes (533). The Code included imperial legislation from the mid-second century onwards; the Digest was an edited collection of jurists’ writings, ranging from the 198

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very late Republic to the later third century; the Institutes was an elementary textbook, based largely on that of Gaius. curial concerning decurions (q.v.), seen as an order in society. decemviral relating to the commission of ten responsible for the Twelve Tables of the mid-fifth century BC. decurion member of a town council – the ordo decurionum, and so a privileged citizen. decury subdivisions of the album. defensor civitatis an official appointed to protect the poor against the strong in the Later Empire. egregii v. status. equestrians/equites the ‘gentry’ class of the late Republic and early Empire, overlapping at its upper end with senatorial families, and similarly defined by a property qualification; they are so named because they originally formed Rome’s cavalry, and were sometimes supplied with horses at public expense. Their separate status fades in the growing officialdom of the Later Empire. extra ordinem offences dealt with other than by the quaestiones perpetuae and the legislation which created them. fisc (fiscus): the imperial treasury, the chief employer of informers (delatores). flagitia a general term for crimes against the moral order. games (ludi): a term which covered theatrical performances, horse-racing, gladiatorial combats, and other spectacles, celebrated in honour of the gods or of some secular anniversary. honestiores the privileged classes of citizen, the lowest rank of whom were veterans honourably discharged from the legions; cf. status. humiliores the lower orders, the unprivileged. Neither of these terms defined formal legal status. imperium, maius superior authority over other holders of imperium, e.g. of the emperor or his designate over other generals. iudex, iudices a juror in a quaestio perpetua; in later usage, a provincial governor. iudicia populi criminal trials before an assembly of the people, organised by centuries or tribes; they disappeared before the end of the Republic. iudicia publica the standing jury-courts for criminal trials (quaestiones perpetuae); as cognitio became more widespread, iudicium publicum came simply to mean a criminal court. jurists lawyers, specialising in the interpretation of law, whose standing was based on their high social status, personal authority and the approval of their peers, and in due course imperial recognition; they flourished from the late second century BC until the mid-third century AD. lex a statute passed by one of the assemblies, e.g. lex Porcia. libellus literally a little book; it could mean a formal written accusation. 199

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litis contestatio properly joinder of issue in private law, but used for the point of no withdrawal in a criminal trial. mandatary someone acting under a contract of mandate; mandates were also imperial instructions to officials. manumission release from slavery by a juridical act. money in the early and mid-Republic the bronze as was the unit of account; HS was the symbol for a sum given in sesterces, the normal silver coinage of the later Republic and Principate, although the denarius came to replace the sesterce as the normal silver coin; in the Later Empire sums were given in gold aurei (each = 100 sesterces) or in pounds of gold. mos maiorum the custom of [our] ancestors; more maiorum = in accordance with this. The Jews were recognized as having their own valid mos maiorum. municipia in the late Republic, Italian towns with powers of self-government. noxal liability/surrender the vicarious liability of an owner or paterfamilias for the delicts of those in his power; he owed the victim reparation but could surrender the actual wrongdoer to work off the damages. optimates the political grouping in the late Republic dominated by the well-established aristocrats, whereas the populares sought popular support in pursuit of much the same ends. ordo iudiciorum publicorum the system of standing jury-courts, as finalised under Augustus; variations from the practice of this system were sometimes described as extra ordinem, sometimes as falling under cognitio. plebeians in the Republic and early Empire, those citizens who were not senatorial or equestrian; later those who, whether citizen or not, were counted among the humiliores. populares v. optimates. procurator one who administers another’s affairs, including the emperor’s. province sphere of duty, not limited to a geographical area. provocatio a form of appeal in the Republic of which the nature is hotly debated; it, like the protection given by the lex Porcia, must have been dependent on the intervention of the tribunes. quaestio originally a commission of inquiry; when ad hoc it could be described as extraordinaria; a quaestio perpetua was a permanent jurycourt, and this is the normal meaning of the term. quaestiones perpetuae the standing jury-courts, systematised by Sulla, and completed by Augustus. saevitia cruelty, brutality, not in itself illegal when directed against noncitizens, but an aggravating circumstance. senatusconsult (SC, plural SCC): a resolution of the Senate, which came to have statutory force for a while during the second century AD. 200

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status in the Republic citizens were divided among the senatorial ordo (at the top), the equestrians and the plebeians. In the Later Empire persons of senatorial rank were clarissimi; the highest senatorial officials were illustres, the lower ones spectabiles; below senators but above decurions were egregii and perfectissimi. stuprum sex crime of all sorts, although sometimes to be distinguished from adultery in the narrow sense, i.e. extra-marital relations with a respectable married woman. Tetrarchy the system of imperial administration set up by Diocletian, with two joint Augusti as senior emperors and two Caesars as their collaborators and heirs; it did not survive. tresviri capitales minor magistrates – young men who might become senators – with responsibility in the late Republic for fire control and public order. tyrant unsuccessful claimant to empire. usucapion the acquisition by lapse of time of good title to property originally taken in good faith and with good reason. vincula literally chains or fetters; the relationship with imprisonment is somewhat obscure.

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Abbreviations For periodicals I have followed the conventions of L’Anneé Philologique, with the following exceptions where either they are not listed or I have kept the normal Roman law usage (AP version in brackets): ACM ANRW AntCl CAH CIL EFR FIRA FS. ILS LQR RE RHD RS SLLRH St. SZ TR

Acts of the Christian Martyrs, ed. Musurillo Aufstieg und Niedergang des Ro¨mischen Welt, ed. H. Temporini (Berlin, continuing) L’Antiquite´ Classique (AC) Cambridge Ancient History Corpus Inscriptionum Latinarum Ećole Française de Rome Fontes Iuris Romani Anteiustiniani Festschrift for Inscriptiones Latinae Selectae, ed. H. Dessau Law Quarterly Review Real Encyclopaedie, ed. Pauly-Wissowa Revue d’Histoire de Droit (RD) Roman Statutes, ed. M.H. Crawford et al., q.v. Studies in Latin Literature and Roman History, ed. C. Deroux, q.v. Studies/Essays in honour of Zeitschrift Savigny-Stiftung, Ro¨manische Abteilung (ZRG) Tijdschrift voor Rechtsgeschiedenis (RHD)

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227

INDEX OF SOURCES

The references in this Index are to chapters (in roman numerals) and footnotes. Legal and Epigraphic Sources Bruns, Concilia, Ancyra c.1 CIL

CJ

VI 385; 2023a,21; 30751 X 104 (= ILS 18 = FIRA i 30) 1.3.53 1.14.12.5 2.58.1 3.27.1 4.20.8 4.42.1 & 2 5.17.11 7.24.1 9.1.14 9.2.17pr 9.3.2 9.4.1 9.4.6 9.5.1 9.5.2 9.7.1 9.8.6 9.9.29 9.9.30 9.9.35 9.12.9 9.12.10 9.13.1 9.14.1 9.15.1 9.17.1 9.18

V 182 III 105 I 2, 58, 72

VII 22 VII 101 VII 14 VII 62 II 125 VII 46, 47, 48 VII 23 VII 23 VII 59 IV 102 VII 81 VII 79 VII 4, 5 VII 9, 56 VII 7, 56 VII 67 VII 71 VII 63 VII 64 VII 15, 94 VII 66 VII 75 VII 16, 24 VIII 3 VIII 3 II 101 VII 59 VI 163 VII 69

CTh

228

9.18.2 9.19.6 9.27.4 9.27.6 9.28.1 9.30.2 9.32–35 9.35.11 9.39.2 9.41.7 9.41.8pr 9.41.9 9.41.10 9.41.11 9.41.12 & 15 9.41.16 9.41.17 9.41.18 9.42.2 9.44.2 9.44.3 9.47.26 9.47.7 9.49.11 11.48.24

VI 73 VII 77, 99 VII 62 VII 72 VII 65 VII 74 VII 58 VII 76 VII 70, 73 II 125 V 59 V 58 VII 13 V 59, 170 VII 15 V 60 VII 96 VII 82 VII 13, 94 VII 78 VII 12 VII 10 VII 6, 98 VII 123 VII 71 VII 23

1.1.5 1.4.2 1.16.7 2.26.3 2.28.1 3.16.1 5.17.1 6.24.2–3 6.29.1 8.16.1

VII 55 VI 44 VI 20 VI 10 VI 115 VI 63 VI 57 VI 29 VI 105 VI 28

INDEX OF SOURCES

9.1.4 9.1.5 9.1.6 9.1.8 9.1.8 & 9 9.1.11 9.1.12 9.1.14 & 15 & 17 9.1.18 9.1.19 9.2.3 9.3.1 9.3.2 9.3.3 9.3.4 9.3.6 9.3.7 9.4.1 9.5.1 9.6.1–2 9.7.2 9.7.3 9.7.4 9.7.6 9.12.1 9.13.1 9.14.1 9.14.2 9.15.1 9.16 9.16.1–2 9.16.3 9.16.4 9.16.4–6 9.16.5 9.16.6 9.16.7 9.16.8 9.16.9 9.16.10 9.16.11 9.16.12 9.17.1–3 9.17.4 9.17.5 9.17.6–7 9.24.1 9.24.2 9.24.3 9.25.1–3

VI VI VI VI VI VI VI

19 VII 61 101 109 126 106, 125 107 108

VI 111 V 110 VI 108, 111 VII 81 V 106, 110 VI 104 VII 79 V 111 V 112 V 111 VI 105 V 111 V 113 VII 67 III 57 VI 55, 87 VII 80 III 57, 103 I 104 VII 64 VII 15 I 104 VII 64 VIII 3 VIII 3 VI 156 VI 21 VII 62 II 101 VII 59 VII 69 VI 58 VI 59 VI 64 VI 48 VI 39, 65 VI 66 VI 72 VI 73 VI 84, 94 VI 91 VI 160 VI 162 VI 68 VI 68 VI 69 VI 70 VII 17, 19 VII 20 VII 21 VII 22

Coll.

9.27.5–6 9.27.6 9.28.1 9.28.2 9.35.1 9.35.2 9.35.6 9.36.2 9.37.1 9.37.2 & 4 9.38.5 9.38.11 9.40.1 9.40.10 & 13 9.42.2 & 4 &6 10.10.1–2 10.10.2 10.10.4 & 10 10.10.10 10.10.11 & 12 10.10.15 10.15.3 11.30.8 11.30.22 & 33 & 51 11.36.1 11.36.4 11.36.7 11.39.1 11.39.3 11.39.5 15.15.1 16.2.25 16.10.1 16.10.5 16.10.6 16.10.7 16.10.9 16.10.10 & 11 16.10.12.1–2

VI 123 VI 19 VII 62 VI 22 VII 65 VII 66 VI 55, 87 VI 57 VI 56 VII 82 VII 11 VII 78 VI 112 VI 100 VI 37 VI 47 VI 89

1.6 13.3 15.2.1 15.2.2 15.2.1–6 15.3

VII 116 VII 117 V 16 V 19 VI 60 V 165

c. Cordi c. Dedoken c. Haec quae necessario

229

VI VI VI VI VI VI VI VI VI

67 102 20 110 120 127 24 113 18

VI VI VI VI VI VI VI VI VI VI VI VI VI VI VI VI

23 62 96 VII 63 62 115 116 117 10 10 59 42 43 158 159 3 161

VII 56 VII 2, 85 VII 56

INDEX OF SOURCES

c. Summa c. Tanta pr. 8a 10 18–21

VII VII VII VII VII

D

VIII 12 V 191 III 121 IV 11 IV 12, 14, 112 IV 16 V 24 V 24 VIII 4 VIII 4 VII 118 IV 12 VII 111 IV 96 VII 3 VII 115 VII 115 VII 104 VI 145 IV 142 V 92 IV 55 IV 14 V 186 V 57 VIII 101 IV 90 V 186 VII 97 II 139 VII 111 VII 122 VII 110 VII 111 VIII 36 VII 119 IV 97 IV 98 IV 102 VII 117 IV 8 III 129 IV 95 III 127 III 129 VI 101 IV 98 VI 108

1.1.1.1 1.5.18 1.16.4.2 1.16.6.3 1.16.10.1 1.18.3 1.18.13pr 1.18.13.1 1.18.14 1.18.14.2 1.18.18 2.1.7.4 4.4.37.1 9.2 9.2.7.6 9.2.9 9.2.45.4 10.1.4.1 11.3.1.5 12.1.34 12.5.3 18.1.46 22.3.7 22.5 22.5.3pr 22.5.13 22.5.21.2 22.5.21.5 29.5.1.31 41.3.37pr 47.2.23 47.2.35 47.2.52.20 47.9.9 47.12.3.1 47.15.3.3 47.15.5 47.15.6 47.21.2 48.1.6 48.1.8 48.1.14 48.2.1 48.2.3pr 48.2.3.2 48.2.4

48.2.7pr-1 48.2.14 48.2.16 48.2.20 48.3.6.1 48.4.1.1 48.4.2 48.4.3

56 84 2 101 85

48.4.4.1 48.4.6 48.4.7.3 48.4.11 48.5.14.5 48.5.14.8 48.5.18(17).6 48.6.7 48.6.10pr 48.8.1pr 48.8.1pr-1 48.8.1.1 48.8.1.3 48.8.3pr 48.8.3.2 48.8.3.4 48.8.9 48.8.12 48.8.14 48.8.15 48.9.1 48.9.2 & 7 48.9.3–4 & 5 48.9.6pr 48.9.9 48.9.9pr 48.9.9.1 48.10.1pr 48.10.1.4 48.10.5 48.10.9.3 48.10.15.5 48.10.16pr &2 48.10.20 48.10.22pr 48.11.1pr 48.11.1.1 48.11.2 48.11.3 & 4 48.11.5 48.11.6pr 48.11.6.1

230

VI 101 III 76 III 59 IV 8, 69 V 117 III 69 III 69 IV 145 III 16, 28 VII 102, 112 III 45 III 45 VII 113 III 94 VIII 85 VII 121 IV 103 IV 38 IV 20 II 20 II 21 IV 51 VII 116 II 26 VII 115 IV 51 VII 104 VII 118 VII 116 VII 115 II 94, 95 VII 106 II 94 VI 121 VII 60 II 100 II 80, 99 IV 50 IV 144 VII 105 IV 50, 142 VII 103 IV 144 IV 50 VII 120 IV 6, 71 IV 12, 111 IV 8, 69 IV 18 IV 9 IV 19 IV 49

INDEX OF SOURCES

48.11.6.2 48.11.7pr 48.11.7.1 48.11.7.2 48.11.7.3 48.11.8 48.11.8.1 48.11.9 48.16.1.3 & 6 48.16.1.13 48.16.15pr 48.17.2pr 48.17.5 48.17.5pr & 3 48.18 48.18.1pr 48.18.1pr-4 48.18.1.1 48.18.1.1 & 5 48.18.1.3 48.18.1.13 48.18.1.16 48.18.1.21 48.18.1.21 & 23–24 48.18.6pr 48.18.7 48.18.8pr 48.18.9pr 48.18.10.1 48.18.10.3 48.18.12 48.18.13 48.18.15pr 48.18.15.1 48.18.15.2 48.18.17.2 48.18.18.6–8 48.18.18.7 48.18.18.9 48.18.20 48.18.21 48.19 48.19.2.1 48.19.3 48.19.4 48.19.5pr 48.19.5.2 48.19.6.1 48.19.7 48.19.8.1

48.19.8.1–3 48.19.8.3 48.19.8.4–13 48.19.8.7 48.19.8.8 48.19.8.9 48.19.8.11 48.19.8.13 48.19.9.11 48.19.10pr 48.19.11pr 48.19.11.2

V 44 V 55 VIII 1 VIII 56 V 46 V 195 V 48 V 41 V 48 V 41 V 37, 47 V 39 VIII 55, 104 V 39 VII 114 VIII 104 48.19.13 V 39 VIII 55, 93 48.19.15 II 99 48.19.16 V 39 VII 124 48.19.17pr V 45 48.19.18 V2 48.19.19 VIII 92 48.19.20 VIII 88 48.19.22 VIII 94 48.19.24 III 107 48.19.25.1 V 44 48.19.27.1–2 VIII 102 48.19.28pr V 41, 140 48.19.28.1 V 47 48.19.28.3 V 64 48.19.28.13–14 VII 98 48.19.28.15 VIII 87 48.19.28.16 VIII 100 48.19.29 V 45, 53 48.19.38.1–2 V 41 48.19.42 VIII 90 48.20.6 V 155 48.22 VIII 62 48.22.1 IV 27 48.22.2 IV 24 48.22.4 IV 27 VIII 64 48.22.4–5 V 141 48.22.5 IV 29, 33 VIII 65, 69 48.22.6pr VIII 63 48.22.6pr-1 IV 25 48.22.6.1 V 141 48.22.6.8–9 IV 33 48.22.7pr VIII 65 48.22.7.1 & 5–16 & 19 IV 28 48.22.7.3 IV 26 48.22.7.4 IV 27 48.22.9–10 V 142 48.22.15 IV 24 VIII 63

IV 12, 13, 122 IV 13 IV 12, 111 IV 13 IV 20 IV 7 IV 14 IV 6 IV 83 IV 94 IV 94 V 141 V 141 V 86 V 57 II 123 V 50 II 122 II 124 V 219 II 125 V 51 II 124 II 123 V 50 VIII 95 VIII 98 II 123, 125 V 55 VIII 98 V 50 VII 14, 95 V 60 VIII 99 V 51 II 122 V 54 VII 122 II 124 II 127 V 219 II 126 VII 109 II 123 V 53 VIII 96 VIII 62 V 141 VIII 102 V 191 VIII 97 IV 33 VII 109 VIII 91 VIII 8, 104 VIII 3 V 47 V 40 VIII 16

231

INDEX OF SOURCES

48.22.15.1 48.22.16 48.22.18pr 48.24.1 & 3 49.14.46.2 49.16.3.11 50.2.2.2 50.2.3.3 50.2.6.3 50.5.3 50.15.3–4 50.16.53.2 50.17.155.2 Ed. Theod. 54

VI 63

FIRA i 7: tab. Bembina/lex Acilia ll. 2; 29; 75 tab Hera., l. 120 SC de Bacch. oratio Claudii SC Calvisianum ll. 98–103 i 94: edictum de acc.

i i i i

30.11pr 42.2.2 45 51 77.1 109 111 115.3–4 117.8–9 & 15 118 123.42 127 128.20 129 132 134.4 134.9 134.10 134.11–12 134.13 139 141.1 142 143 (= 150) 144 146 154

V 141 IV 24 VIII 65 V 156 IV 10, 14 VII 107 V 170 V 72 IV 100 IV 14 V 76 VII 102 VIII 90

13: 30: 44: 68:

II 12 IV 69, 83, 111 IV 90 I 2, 58, 72 IV 92 IV 5, 81 IV 81 III 57 VI 102

FIRA ii p. 421: Paul fr.Leid.inst. 2 IV 85 FIRA iii 86: sententia Senecionis V 138 iii 189: libellus libellatici V 74 G.

1.53 2.102–8 4.6–9 4.174–75

VIII 3 I 73 VIII 86 IV 97

Inst.

4.6.18–19 4.18.6

VIII 86 II 100 VII 60

leges regiae, Numa 12

II 79

NovJ 9 12 12.1–2 12.3 12.4 14 22.8 22.12 22.15 25.2.2

VII VII VII VII VII VII VII VII VII VII

86 28 29 30 31 23, 34, 87 93 41 27 50 VIII 89

VII 38, 49 VII 91 VIII 80 VII 53 VII 37, 87 VII 42 VII 53 VII 86 VII 27 VII 27 VII 54, 88 VII 22 VII 54, 88 VII 91 VIII 80 VII 53 VII 53 VII 39 VII 40 VII 41 VII 41, 89 VII 51, 91 VIII 80 VII 28, 32 VII 44 VIII 89 VII 46, 90 VIII 81 VII 26 VII 53 VII 53 VII 28, 33, 90

NovTh 18

VII 35

PS

II 124 V 191 VI 45 IV 32 IV 100, 101 III 58 V 186 II 21, 99 VI 44 VI 146 II 94 IV 50 IV 38 III 44

1.12.3 1.12.4 1.21.1 3.4A.9 & 14 5.4.11 5.13.1–2 5.16.1–2 5.23.1 5.23.15–17 5.23.18 5.24.1 5.25.2 & 13 5.26.1 5.29.1

SC de Bacchanalibus, see FIRA i 30 SCPP 4–11 15–16 20–22 23–24 24–25

232

III III III III III

95 87 101 74 66, 86

INDEX OF SOURCES

28–29 38–39 45–57 64–65 68–70 71–73 73–90 93–105 100–101 105–8 119–20 120–23

III III III III III III III III III III III III

Felix, 9

V 93 22 23–31 26 31 Fructuosus, 1 1.2 2 3.1–2 4.1 6.1–2 Irenaeus, 1–2 4–6 5.6 Julius, 2 V 163 Marcellus, (M)1.1; (N)2.1 Marianus & Jacobus 3 4.3 12.1 Maximilian, 2.9 Montanus & Lucius, 4.2 6.2–5 9.3 15.1 17.1 21.12 23.12.3 20 Perpetua and companions 3.1 3.7 9.1 15 15.5 18 18.5–6 18.9 19–20 19.5 19.6 21 21.9 Phileae, Acta: 1 4.1 5.1 & 4 5.5 6.2–4 7.3–8.1 8.1 9.3 Ep

19 86 78 26 114 106 108 110 98, 103 42, 111 103 112

Sirm. Const. 13

V 113

XII T 8.9 8.10 8.12–13 8.14 8.24a 8.24b 8.26 9.3

VIII 35, 39 II 20 VIII 6, 36, 39 VIII 37,39 VIII 6, 38, 39 VIII 39 VIII 35 I 51 II 22

Literary Sources (Abbreviations are based on the usage in the Oxford Classical Dictionary.) ACM – Acts of the Christian Martyrs: Agape, Irene, & Chione, 1.2 V 79 3.1 V 94, 96, 189 3–4 V 192 5–6.1 V 190, 193 VIII 75 5.8 V 102, 108 5.8–7.2 V 196 6.1 V 102 Crispina V 205 1.1 & 3.1 V 96 4.1 V 97 Cyprian, 1 V 137 1.5 V 114 VII 109 2 V 144, 152 2.2 V 93 3 V 153 4 V 154 5 V 156 5.4 V 102

233

V V V V V V V V V V V V V

95 177 106 101, 177 159 94 160 161 94 161 197 198 102

V V V V V V V V V V V V V

163 158 149 94 102 163 101 108 108 102 100 108 157

V 95 V 106, 109 V 100 V 191 V 100 VIII 76 V 114 V 103 V 215 V 103 V 119 V 119 V 103 V 199 V 99, 200 V 202 V 99, 201 V 99, 203 V 204 V 99 V 102 V 204

INDEX OF SOURCES

Pionius, 2.1 2.1–3.7 3.1 4–6 7 7.1–9.9 7.5 7.6 9.1 10–11 11.3–5 11.4 15–16 16.6

22.12.6–8 26.1.1 26.3.1–4 26.3.3 27.7.5 27.11.1 28.1.6 28.1.8–11 28.1.8 & 29 28.1.16–23 28.1.16 & 28 28.1.24–25 28.1.26 28.1.26 & 29 28.1.27 28.1.28 28.1.36–37 28.1.45 & 50 & 54–56 28.4.25 28.6.17–23 29.1.4 29.1.5–10 29.1.10–14 29.1.15–16 29.1.18–22 29.1.23–24 29.1.25 29.1.27–33 29.1.34–37 29.1.38–40 29.1.39–44 29.2.4 29.2.6–16 29.2.17 29.2.18 29.3.3 29.3.5 30.4.2 30.4.3–22 30.5.4–10 31.14.8

V 87 V 89 V 75, 95 V 90 VIII 75 V 91 V 193 V 194 V 97 V 104 V 109 V 106 V 114 V 178 VII 109 V 217 V 115 V 116 V 115 V 117 V 97 V 118 V 119 V 96 V 102 V 213 V 137 V 119 V 98 V 156 V 194 V 98

17 18.5 18.10 18.13–14 19 19.1 20 21–22 21.1 21.3 Polycarp, 2.4 4 12–16 12.1 17–18 Pot. and Bas. 2 Scillitans, 16 Ambrose, Ep. 25

VIII 26

Amm. Marc., 14.1 14.5 14.5.9 14.9.6 15.1.1 15.5–6 15.7.2ff 15.7.6–10 16.8.2 19.12.1–6 19.12.7–8 19.12.9–13 19.12.14 19.12.17 19.12.19–20 21.1.7–14 22.10.7

VI VI VI VI VI VI VI VI VI VI VI VI VI VI VI VI VI

30 41 47 36 33 31 160 5 46 48 49 51 53 54 25 25 33

234

VI 33 VI 33 VI 86 VI 160 VI 22 VI 111 VI 106 VI 86 VI 98 VI 94 VI 93 VI 88 VI 140 VI 94 VI 160 VIII 83 VI 97 VI 95 VI 160 VI 12 VI 119 VI 122 VI 125 VI 119 VI 127 VI 129 VI 130 VI 133 VI 135 VI 137 VI 138 VI 149 VI 153 VI 155 VI 157 VI 11 VIII 33 VI 13, 123 VI 13 VI 111 VI 132

Appian, BC, 1.11.95–96 1.12.103 1.14.120 4.4.20 Mith. 117

II 54 II 54 II 57, VIII 105 II 44 VIII 49

Apuleius, Met. 9.12

V 205

INDEX OF SOURCES

10.22–23 & 29 & 34

div. Caec. V 43, VIII 76 fam.

Artemidorus, Oneir. 1.21 V 205 Asconius, in Milon. 36C Augustine, CD Ep. Basil, Ep. Bible, Acts I Cor. Daniel John Luke Mark

Caecina Clu.

III 72

6.9 19.6 133

I 41 VIII 28 VIII 28

leg.

46

VI 96

orat. Pis.

16.24 19.19 22.24–29 8; 10.14–33 13 7.1 & 10.39–40 23.39–41 15.2–5

V 106 VI 144 V 51 V 88 VI 96

Catullus, Carm. 59 Chron. a. 375 Cicero Balb. Brut.

Flac. inv. rhet.

28.65 30.107 90.312 10.29 7.21 8.25 13.38 15.43 37.104 44.125 46.128–29 48.135 52.144–57.157 62.175 63.176–77 65.182–84 65.182– 66.186 66.187 69.195–98

off.

1.1–2.6 4.12.3 8.8.3 33.82 1.11.14 2.19.58 2.36.109 2.50.149 2.14.35 2.15.37 1.14.43 2.8.27 2.14.51 1.43.194 21.50 36.87 37.90

Quinct. QFr. 1.2.5 Rab. Post. 5.12 16 Rosc. Am. 1.1–2.5 2.6 3.7–8 6.15–16 6.17–7.18 7.19–20 7.20–28.21 8.21–23 9.24–26 10.27 10.27–28 13.35–36 13.38–18.52 18.52–19.54 19.55

V 137 VIII 2 VII 109 V 205 VI 99 II 14 II 102 II 3 II 17 II 56 II 55 II 32 II 56 IV 17 II 51 VIII 7 II 105 II 21 VIII 46 II 120, 126 II 120

20.55–56 20.57 21.59 21.59–22.60 22.62 23.64–65 25.70 26.72 28.77 28.78 29.82 30.84 34.96

II 126 VIII 108 II 72

235

II 15 III 59 II 128 IV 2 IV 53 VIII 12 II 19 VIII 12 II 81, 90 I 50 I 50 II 46 II 46 II 3 VIII 12 IV 16 IV 18 IV 16 II 2 II 84 IV 9 VIII 30 II 61 II 62, 65 II 63 II 66 II 67 II 69, 132 II 135 II 71 II 75, 136 II 60 II 77 II 78 II 103 II 104 II 109 IV 90 II 31 IV 90 II 110 II 111 II 114 II 82, 116 II 85 II 102 II 60, 71, 119 II 121 II 129 II 108 II 132

INDEX OF SOURCES

36.105–37.108 38.109–10 41.119–20 42.123 43.126 46.134 50.145

II II II II II II II

1.6.15 1.25 1.36 1.47.123–24 4.5.9–10 5.64.165

II 1.3.7–9 IV 14 III 59 IV 53 IV 134 III 48 IV 14 VIII 32

Verr.

135 136 137 138 140 141 143

de lapsis,

Councils of the Church, see Bruns Cyprian, Ep.

5 5.1.2 5.2.1 7.1 7.2 8.1.1 8.3 13.4.1 13.7 15.4 19.2.2 19.2.3 20.1 21 21.3.2 21.4.1 22.2 24.1 24.11 30.1 30.3 30.8.1 38 39.1.1 39.3 43.1.2 43.3.1 54 55.2.1 55.3.2–6.1 55.11

V 85 V 78 V 211 V 85, 211 V 78 V 79 V 78, 131 V 131, 142 V 131 V 71 V 77 V 143 V 85 V 83 V 127 V 78, 123 V 105, 120, 220 V 130, 143 V 124 V 128 V 129 V 78 V 221 V 81 V 66 V 80 V 75 V 122 V 126 V 80 V 126

55.13.2 55.14.1 56.1.1 57.1.2 58 66.4.1 67.1.1 75.10 76.2.2 & 4 77.2.1–2 77.3.1 80.1 81 81.1.1 3

Dio Cassius, 40.52.2 40.54.3 53.2.4 54.6.6 56.27.2 57.15.8 57.15.9 57.18.6 57.18.9–10 57.22.5 58.4.8 58.11.5–6 61.33.6 64.21.2 76.16

IV 53 VIII 47 I 95 I 95 IV 31 V 16 III 5 III 120 III 18 IV 32 III 52 III 82 IV 10 III 82 III 130

Dio Chrys. or. 43.6–7

IV 109

Dion. Hal. AR, 2.19.2 2.19.4–5 6.17.2 6.94.3

I I I I

Eur. Bacch. 469 & 485–86 Eusebius, HE,

236

V V V V V V V V V V V V V V V

4.9 4.15.47 5.1.14 5.1.27 5.1.28–31 5.1.40 5.1.44 & 50 5.1.57–62 5.1.61

71, 125 127 75 133 133 86 121 84 140, 205 137 140 146, 148 150 93 74

98 99 19 19 I 25 V V V V V V V V V

28 87 219 105 34 119 61 156 109

INDEX OF SOURCES

6.28 6.39.1–4 6.40 6.41–42 6.42.2 6.43.3 7.2.3 7.10 7.11.3–11 & 14–17 7.11.10–17 7.13 7.15 8.1 8.2.4 8.2.5 8.6.8–9 8.6.10 8.9.4 8.9.6–8 8.12.3–5 8.12.10 8.15 & 16.1 8.17 9.10.8 10.5 mart.Pal. praef.1 praef. 2 1.3–4 3.1 4.6 & 8 & 14 9.2 Festus

p. 103L 221L

Firm. Mat. err. prof. 6.9 Math. 1.7.27 2.30 3.4.4 3.4.8 3.4.15 & 21 3.6.4 3.7.15 4.pr-1 4.13.6 5.30.1–3 5.30.4–7 5.30.8–15

V V V V V V V V

Gellius, NA

84 83 84 84 79 132 132 136

V 139 V 142 V 162 V 163 V 167 V 169, 172 V 179 V 179 V 180 V 168 V 204 V 194 V 188, 208 VIII 79 V 206 V 207 V 169 V 209 V 169 V 179 V 180 V 181 V 182 V 71

7.14 10.23 11.18.8 14.1 15.11.1 15.11.2 15.11.3–5 15.28 20.1 20.1.7 20.1.14–18

VIII 10 II 35 VIII 38 V 16 V 13 V 15 V 18 II 1 VIII 34 II 22 VIII 11

Horace, Ep. Sat.

5.17 1.8

VI 52 VI 52

Jerome, Ep.

1

VI 96 VIII 27

John Chrysostom, hom. ad Acta Ap. 38.5 or. 3.7 Joseph. AJ BJ

18.54 18.88–89 2.308 7.154 7.203

Juvenal 8.212ff 13.153ff

I 35 II 79

Lactantius, div.inst.,

I 41 II 55 VI 78 VI 79 VI 80 VI 79 VI 81 VI 82 VI 75 VI 83 VI 77 VI 76 VI 78

MP,

237

VI 149 VI 139

5.11.15 5.11.19 7.2–4 10–11 11.7 12 13.1 16.3–11 19 21.3–4 21.7–11 22.5 23 34 36.3–7 48

III 120 IV 70 VIII 71 VIII 49 VIII 32 II 91 II 91 V V V V V V V V V V V V V V V V

214 32 33 166 67 171 169 222 185 59, 187 41 187 33 207 208 209

INDEX OF SOURCES

Livy,

2.19.13 6.20 8.18 25.1.6–12 29.14.5–14 31.12.8 36.36.4 38.54–55 39.8–19 passim 39.8.3 39.8.3–4 39.8.3–5 39.8.5–6 39.8.7–8 39.9.1 39.9.2–4 39.9.5–10.2 39.10.2–9 39.11.1–2 39.11.3–7 39.12.1–8 39.13.1–7 39.13.8–14 39.14.1–3 39.14.3–8 39.14.9–10 39.15.1–14 39.16.1–13 39.16.8 39.17.1–3 39.17.4–7 39.18.1–2 39.18.3–7 39.18.4–6 39.18.8–9 39.18.9 39.19.2 39.19.3–7 39.20.1 39.23.1 & 3 39.29.8 39.38.3 39.41.5–6 39.41.6–7 40.19.9–10 40.29.2–14 40.37 & 43 40.37.4–7 40.43.2–3 40.44.6 ep./per. 8 ep./per. 48

ep./per. 68

I 19 VIII 40 VIII 41 I 89 I 96 II 86 I 96 I 44 I3 I 4 II 24 I5 I 25 I8 I 10 I 12 I 15 I 16 I 17 I 18 I 20 I 21 I 23 I 31 I 33 I 42 I 47 I 49 I 52 I 86 I 52 I 54 I 55 I 56 I 69 I 57 I 72 I 80 I 84 I 74 I 74 I 76 I 77 II 25 I 77 I 76 I 78 I 88 II 25 I 79 I 79 I 79 II 25 VIII 41 I 91 II 25

II 81, 87

Lucian, Peregrinus Proteus, 14 Lydus, mag. 3.16

V 96

Martial, spect.

V 42 VIII 107

Orosius, 5.21.1

II 55

Ovid, fasti 6.485–550

I 36

Pausanias, 9.39.5–14

I 28

Philostratus, Vita Ap.

Plautus, Amph. Aul. Bacch. Men. Persa

4.35 4.47 5.19

V V V V

702ff 406–13 52ff; 368ff 828–41 62–74

I6 I6 I6 I6 II 29

Pliny the Elder, HN 11.71.187 18.3.12 29.12.54 30.4.13 30.12 33.16.53 Pliny the Younger, Ep. 1.5 1.20.6–10 2.11 2.11.2 2.11.3–4 2.11.4 2.11.5–8 2.11.8 2.11.9–10 2.11.12 2.11.14–18 2.11.19 2.11.19–22 2.11.23

238

V 64, 131

68 17 17 46

III 79 VIII 35 I 95 I 95 I 92 VIII 50 III 56 II 110 IV 34 IV 37 IV 40 IV 117 IV 47 IV 48 IV 52 IV 49 IV 54 VII 131 VIII 58 IV 57 II 118 IV 46 134

INDEX OF SOURCES

2.11.23–24 2.12.1–5 2.12.2 2.12.4 2.12.5 2.19.1 & 8 2.19.8 3.4 3.4.4 3.4.7 3.4.8 3.9 3.9.2–3 3.9.4 3.9.5 3.9.5 & 12–18 3.9.6 3.9.7–11 3.9.12–17 3.9.13 3.9.14 3.9.18 3.9.19–21 3.9.22–25 3.9.29–32 3.9.33 3.9.33–35 3.9.34 3.9.35 3.9.36 4.9 4.9.1–2 4.9.3 4.9.4–6 4.9.9 4.9.9–13 4.9.14–15 4.9.16–17 4.9.18–19 4.9.19 4.9.20–22 4.9.22

4.29

IV 58 IV 60 VII 131 VIII 58 VII 118 IV 131 II 110 IV 39, 44, 62 IV 63 IV 23 IV 65, 74 VIII 17 II 36 IV 66 IV 63 IV 67 IV 35 IV 68 VIII 59 IV 69 IV 72 IV 76 II 118 IV 73 IV 44 IV 78 IV 104 IV 105 IV 43, 79, 149 III 124 IV 87 IV 103 IV 86 IV 106 IV 107 IV 108 IV 113, 150 IV 110 III 73 IV 53 IV 115 IV 116 IV 43, 117, 149 IV 118 VIII 60 IV 49 IV 123 IV 120

5.9 5.9.3–5 5.13.5 5.13.6–8 5.20 5.20.1 5.20.2 5.20.4–5 5.20.6–7 6.5 6.11.1 6.13 6.22 6.22.1–2 6.22.3–4 6.22.5 6.29 6.29.8 6.29.9 6.29.10 6.29.11 6.31.1–12 6.31.11 7.6 7.6.1 7.6.2 7.6.3–7 7.6.8–10 7.6.14 7.10 7.33 7.33.4 7.33.4–8 8.14 10.3A.2 10.32.2 10.56.4 10.96–97 10.96.1–4 10.96.3 10.96.5

239

III 125 IV 129 III 125 IV 129 IV 99 III 56 IV 44, 124, 150 IV 125 IV 126 IV 127 IV 128 IV 124, 130 IV 138 IV 124, 131 IV 138 IV 140 IV 143 IV 146 VIII 61 IV 75, 107 IV 23, 63, 64 IV 34 IV 121 IV 128 IV 138 IV 139 IV 124, 132 IV 133 IV 134 IV 135 III 126 IV 87, 147 IV 136 IV 124, 137 IV 41, 64 IV 23 IV 64 IV 44 IV 36 V 46 IV 119 VIII 60 V 9, 23 V 25 V 19 V 65

INDEX OF SOURCES

pan.

10.96.5–6 10.96.5 & 8 10.97 35.2 42.1

Plut. Lives:

Cic. 3.2–4 48.4 Crass. 6.6 8 Rom. 22 Sulla, 30.2–3 31.3–5 32.2 Quaest. Rom., 83

Quint. inst.or.

V 26 V 27 V 28 VI 48 III 55 III 55

3.10.1 5.7.9 7.4.3 7.4.6 11.3.130 12.7.1–3

II 3 II 44 II 74 I 65 II 86 II 41 II 55 II 50 I 93

Rhet ad Her. 1.13.23

II 81, 89

Sall. Cat.

58

VIII 31

11 14.1 1.2.2 1.4.3 1.6.3 1.12.2 1.14.1

V 118 III 122 VIII 20 VIII 23 VIII 24 II 41 VIII 19, 24 II 91 VIII 56 VIII 21 VIII 22 II 98 IV 147 VI 100 V 107 VIII 19 VIII 24 III 113 VIII 6 II 35 V 40 VIII 87 II 50 VIII 9 VIII 56 VII 92

Seneca apocol. clem.

Polybius,

6.14.4 6.14.4–5 6.14.7

Procopius, Anec. 1.12–13 6.21 9.39 11.1–2 11.21–33 11.34–35 11.36 11.37–41 14.1–10 15.22 16.19–21 17.3 17.5–6 17.44 19.11 20.9 22.32 27.19 28.16–19 Ps.-Asc.

p. 99 p. 125

Ps.-Quint. decl. mai. 9.21 17.9 decl. min. 274

VIII 12 VIII 20 I 106 II 27 VIII 42

1.15.7 1.18.1–2 1.21.1 1.22.1–2 1.23.1 2.1.2 2.7 ep. 24.3 ira 1.6.2–4 1.16.2–3 1.18.3 1.19.5–7 1.21.3 2.5.5 2.32 3.18.1–2 3.19.2 3.32 & 35 ad M. de consol. 20.3

VI 160 VII 88 VI 165 VII 88 VII 53 VII 43 VII 45 VI 164 VII 54 VII 83 VII 45 VII 92 VII 36 VII 51 VII 43, 53 VII 43 VI 165 VII 92 VII 53

SHA, Hadrian Tacitus

III 59 IV 34

II 16 III 124 IV 128 VIII 12 II 35 III 124 II 37

16.7 10

VI 60 VII 35

Strabo 6.2.6 V 42 VIII 50 II 91 VIII 9

Suet. Aug.

240

31.1 32.1 32.3

VI 143 II 56 III 123

INDEX OF SOURCES

Calig.

Claud.

Dom.

Galba Jul. Nero

rhet. Tib.

Titus Vit.

33.1 1.2 3.3 5–6 16.2 27 14–15 23.1 23.2 25.5 34.1 4 8 8.2 10 10–11 9.1 14.3 11 15.1 16.2 31.3 49.2 i 36 37 51 & 57 52.3 52.3–54 60 63 8.5 9 17

Symmachus rel. 3 3.3 38 Tacitus, Ann.

1.74 1.74.6 1.79.5 2.19 2.27–32 2.28.3 2.32 2.32.1 2.35

2.43.1–2 2.43.3–6 2.43.4 2.48.3 2.53–54 2.55.3–4 2.55.5–6 2.55.6 2.57.1 2.57.2–4 2.59.1 2.59.2–3 2.60–61 2.69.1 2.69.2 2.69.3 2.70.1 2.70.2 2.71 2.73.4 2.74 2.75.1 2.75.2 2.76.1 2.76.2–3 2.77 2.78.1 2.78.2 2.79.1 2.79.2–80.2 2.80.1 2.80.3–81.3 2.82 2.83 2.85 3.1–2 3.1–2 & 4–5 3.2.3 3.3 & 6 3.7.1 3.7.2 3.8.1–2 3.9.1 3.9.2–3 3.10–15 3.10.1 3.10.3 3.11.2 3.12.1 3.12.2 3.12.3 3.12.4–5

II 83, 96 III 79 III 21 III 37 III 123 VIII 67 VIII 68 III 123 VIII 69 I 95 II 98 VIII 70 VIII 73 III 124 IV 41 VI 11 VIII 73 IV 37 III 123 II 53 IV 140 V5 VIII 72 VIII 30 V 13, 15 V 16, 20 VIII 66 VIII 66 III 92 III 120 VI 11 V 16 III 53 VIII 107 VIII 18 VI 2 VI 6 V 151 VI 123 III 50 III 5 III 5 VIII 82 III 77 III 47 V 16 III 47, 118 III 5

241

III 4 III 3, 7 III 6 IV 59 III 12 III 8 III 9 III 102 III 10 III 11 III 12 III 13 III 12 III 15 III 17 III 18 III 19 III 20 III 22 III 23 III 24 III 25 III 27 III 28 III 29 III 30 III 31 III 28 III 32 III 33 III 28 III 34 III 36 III 37 I 95 III 39 III 36 III 38 III 40 III 35 III 41 III 35 III 35 III 42 VIII 57 II 15 III 60 III 63 III 64 III 67 III 68 III 69 III 70

INDEX OF SOURCES

3.12.6–7 3.13.1 3.13.2 3.14.1–2 3.14.2 3.14.3 3.14.4 3.14.5 3.15.1 3.15.2 3.15.3 3.16.1 3.16.2 3.16.3–4 3.17 3.17.1 3.17.3 3.17.4 3.18.2–3 3.19 3.23.2 3.25 3.28.3 3.33–34 3.38.1 3.49–51 3.50.4 3.68 3.69.1 3.70 4.15 4.18–20 4.20 4.20.2 4.22.2 4.52.1 4.66.1 6.19 6.20–21 6.26.3 6.29 11.3.1 11.25.5–6 13.30

13.33.1 13.43 14.18 14.41

III 71 III 75 IV 53 III 78 III 80 II 125 III 81 III 83 III 84 III 88, 99 III 90 II 115 III 91 III 92 III 96 III 97 III 66 III 98 III 100 III 104 III 115 III 119 III 61 III 49 III 49 IV 11 III 45 III 45 VIII 5 IV 42, 148 IV 59 III 45 IV 70 III 121 IV 11 III 118 III 62 III 51 III 51 VI 137 VIII 82 VI 60 III 104 VIII 15 VIII 15 IV 59 IV 70

14.48.4 15.44

Dial. Hist. Tertullian, ap.

15.60.1 16.21–35 16.33.2 38.1–2 2.10 1.6 2.7 2.10 2.17 6.9–10 12.5 15.4–5

39.6 50.12 fuga, passim nat.deorum 1.10.16 Scap. 4.3; 5.1

V 218 V 28 V4 V 56 I1 V 222 V 43 VIII 77 V 222 V 194 V 79 I1 V 64

The Week, 15 May 2004

V 194

Val. Max.

1.3.4 2.4.2 6.1.13 6.3.7 6.3.8 7.7.6 8.1.13

II 86 I 63, 90 V 14 I 95 I 91 II 35 I 69 II 25 I 99 II 116

Vell.Pat.

2.28.4

II 47

Virgil Ecl.

5

I 66

1.1.13 1.3.3

Zosimus, 4.14.4

242

IV 10 IV 45, 82 IV 49 III 122 IV 101 VIII 5 V 5, 62 VIII 106 VIII 15 VI 154 VIII 15 IV 53 IV 85

VI 152

GENERAL INDEX

Usually the primary reference to a topic is to the Latin technical term, where there is one, to avoid confusion over translations, but in a few cases a broader term seems more useful. With names I have mostly followed common usage or my sources, e.g., Cicero not Tullius Cicero. References to a page include the footnotes. Dates (in brackets) are AD unless otherwise specified. aggravation see flexible penalties Agrippina, wife of Germanicus 57, 58, 60– 1, 73 Albinus, Lucceius 87–89, 91, 93 album 31–32, 75 Alexander, bishop of Jerusalem 111 allies see socii Altar of Victory in the Senate House 130–1 ‘alternative state’ 14 Alypius, brother of Olybrius 145 Alypius, former vicar of Britain 153 Ambrose, St 183 Ameria & its townsmen 42–43, 52, 53; decree of the decurions 43 amicitiam renuntiare 59–60, 66 Ammianus Marcellinus 1, 135–6, 180, 181–82 amnesty 123, 148, 183 Ancyra, Council of 115 Andronicus, scholar and poet 139 angels 135; see also demons animals in culleus 45–46, 169 annalists 15–16 Anthemius, emperor 171 Antistius Sosianus 180 Antonia, mother of Germanicus 73 Antoninus Pius, emperor 173, 181, 194 Anullinus 122, 126 Apollo, god 26, 109 apostasy see recantation appeal 76, 126, 134, 196; denial of right 28, 141, 163 Apronia, wife of Plautius Silvanus 65

abduction-marriage 162–64 abolitio (withdrawal of accusation) 89 abuse of official power 2, 73, ch. 4 passim, 133–5, 169–71, 192; see also corruption; repetundae Abydum & its oracle 138 accomplices 38, 73, 87, 162–63, 174 accounts, citizens’ financial 50, 85, 87, 96 accusation: against the dead 86; by freedmen 145, 172; by slaves 145, 172; by women 75; formalities of 33, 35, 94, 108, 150; restricted 64, 90, 103–4, 147; see also prosecution Acilius Rufus 95 Acta Martyrum Christianorum 2, ch. 5 passim, esp. 100–101, 191 acta senatus 16, 66 actresses see prostitutes actus reus 174 Adrianople, battle of 132, 136, 152 adultery 36, 51, 76, 141, 145–6, 147, 162, 166–67, 170, 176, 188, 193 advocates 65, 82, 94 Aebutia 11–12 Aebutius, Publius 9–15, 16, 24–5 aediles 17, 27, 33 Africa & Africans 82, 84, 85, 86, 108, 117–20, 122, 126 Africanus, S. Caecilius 184 Agape, martyr 124–25, 191 agentes in rebus 136 aggravated death penalty see supplicium, summum

243

GENERAL INDEX

blasphemy 167 bonds, social see social stability books, magic or sacred, and book burning 18, 26, 105, 121, 122, 124, 153–4, 157 boundary stones, movement of 176 branding see tattooing bribery 80, 97, 113; see also corruption brothels 111, 124–5, 165–66, 191 bucellarii 171 burial see funerals Burrus, S. Afranius 97

Apulia 23–24 Apuleius 196 archaeological evidence 8, 21–22 Arianism 131 Aristotle 153 Arles I (314), Council of 115; Arles II (355) 131 Armenia 57, 58, 73, 122, 131 Arpinum 40, 52 Arrius Antoninus 108 arson 33, 184 Asclepiades see Pionius Asia, province of 98, 108, 126 assembly trials see iudicia populi astrologers & astrology 2, 3, 4, 63, 99, 101–2, 140–1, 157, 171; science of 142– 4; see also magic Athanasius, bishop of Alexandria 131 Athens 153 Atinius, G. and M. 14, 19 Attalus, martyr 108 attempted crime 34, 174 attendants, corrupt 162–63 attic flat 15 Atticinus, Montanus 96–7, 189 Attius, T. 48 augurs 18 Augustine, St 16, 181, 183 Augustus, emperor 26, 31, 32, 44, 46, 50, 57–58, 75, 79, 81, 153, 163–4 Aurelius Cotta 72 Aurius, Marcus 40 auxilium, tribunician 22, 24, 187

Caecilia Metella 44, 52, 55 Caecilius Classicus see Classicus Caecina Severus 73 Caelius, Titus of Tarracina 44, 49 Caepio Hispo 93–94 Caesar, see Drusus; Germanicus; Julius Caesariani 118 Caligula, emperor 75, 189–90 Callistratus 107 Calpurnia, Piso’s daughter 72 Calpurnius Piso, Cn. senior see Piso Calpurnius Piso, Cn. junior 70–71, 72 Calpurnius Piso, L., augur 65, 72 Calpurnius Piso, Marcus 60–61, 62, 70–1, 72, 76 calumny (calumnia) 35, 36, 48, 64, 86, 88, 89–90, 145, 147–48, 155; exemption from 90 Campania 9, 13, 24 Canidia 139 cannibalism 99, 127 canon law 158 capital charges 21, 82; crimes 13; see also crimes of the ordo; penalties 34, 46, 73, 105–6, 118, 185; see also culleus; death more maiorum; decapitation; deportation; interdictio; mines; penal slavery; supplicium summum; see further Ceres; furca; lapidatio; strangulation; Tarpeian Rock; torture Capito see Roscius Capito, T. Cappadocia 57, 111 Caracalla, emperor 79, 92, 105 carcer and Tullianum 113 Casta, wife of Classicus 87, 88, 90–91 castration 27, 167, 173, 192; see also mutilation casus (accident) 181, 195 Cato, M. Porcius 28 celibacy 135

Babylas, bishop of Antioch 111 Bacchanalians & Bacchus ch. 1 passim, 99, 179, 185, 196 Baebius Macer 93 Baebius Massa 80, 83, 86 Baetica & Baeticans 86–89, 90–91 bail see sureties barbarians 109, 131, 132, 133, 167, 196 Barea Soranus 155 Bassus, Julius 91–94, 97, 98, 189 bath, weekly, for prisoners 114 beasts, condemnation to 46, 106, 137, 186, 189–90, 197 bedrooms 49, 69 beneficiarii 112 bishops 104, 109, 110–11, 114, 118, 127, 157, 160–61, 183 Bithynia & Bithynians 91–96, 103–4, 189

244

GENERAL INDEX

coercitio 187 cognitio 46, 64, 65, 67, 76, 83, 93, 188, 191, 194; see also flexible penalties; jurisdiction collegia 23 collusion see praevaricatio coloni 140 comites 60, 79, 87, 96 commentariensis 112, 124 compilers (of the Digest, etc) 158, 161, 168–69, 178 concilium provinciae 86–9, 95 condemnation in absence, issue of 18, 85, 174, 194 confession (admission) 138, 148 confessors 100, 101, 104, 105, 115, 128–9 confinement to Rome or other fixed place 190 confiscation 34, 37–40, 72–73, 81, 106, 118, 121, 141, 163, 165, 167, 189 consecrated virgins et al 163 consilium, magistrate’s 119; imperial 96–7 conspiracy (coniuratio) 8, 17, 20, 22, 23, 29 Constans, emperor 131, 137 Constantine I, emperor 46, 101, 123, 126– 7, 128, 130–31, 133–34, 137–38, 140– 1, 145, 162–64, 167, 168, 169, 172 Constantine II, emperor 131 Constantinople & citizens of 165–6, 167 Constantius I, Caesar then Augustus 122, 123 Constantius II, emperor 131, 137–40, 141– 42, 163, 182 constitutio Antoniniana 105–6, 108 consuls 8, 17–18, 19, 25, 28, 76, 84, 92, 94, 95–6 contumacy (contumacia) 103, 194 contumelia 182 convents 166–67, 173, 194 Cornelius Priscus 95 Cornelius, Publius 24 Cornutus Tertullus 84 corporal penalties 106, 168, 174, 193; see also flogging; gynaeceum; mutilation; opus publicum; prison; vincula Corpus Iuris Civilis 2, 3, 158–59, 168, 172, 175, 180 corruption in legal proceedings 32, 33, 33– 4, 38–9, 47, 76, 80, 84, 85, 133; see also abuse of official power; repetundae council, provincial see concilium provinciae Councils, ecclesiastical see Ancyra; Arles; Nicaea; Sirmium

Celsus the jurist, junior 95 cemeteries 117, 120 censors 24, 102, 180 Ceres 11, 18, 184 Cerrinius, Herennius 13; Minius 13, 19, 24 Chaldaei 143; see also astrology; divination children see liability, diminished Chilo and his wife 145 Chione, martyr 124 Christianity ch. 5 passim, esp. p 127, 130– 1, 132; effects of 135, 183, 192 Christians 3, 135, 179, 191–92, 194; as atheists 119, 124, 127; see also clergy; pagans Chrysogonus 30, 41–44, 48, 52–53, 54–55 church buildings 105, 120, 121–2 Cicero, M. Tullius 2, 30–31, 40–1, 48, 66, 82, 89–90, 101, 179, 180–1, 184; speeches: pro Cluentio 30, 31, 32, 33, 40, 49, 50; pro Publio Quinctio 30; pro Roscio Amerino ch. 2 passim, 89 Cicero, Quintus Tullius 45 Cingius Severus 108 Cinna, Lucius Cornelius 37 citizens, Roman 2–3, 14, 20, 23, 29, 103, 105–8, 185, 187, 188; citizenship 5, 36– 7, 105, 163, 189; loss of 81 civic rights 197 civil proceedings 76, 148 civil war 31, 55, 61, 70 clarissimi see Glossary, ‘status’ Classica, daughter of Classicus 87, 91 Classicus, Caecilius 86–9, 97, 98, 188 Claudia Pulchra 64 Claudius, emperor 46, 57, 73, 75, 79, 90, 106, 190 Claudius Fuscus 88 Claudius Marcellinus 84 Claudius Marcellus, M. 27 clemency 124, 147, 181, 182–83, 194 clergy, Christian 118, 119–20, 122; see also bishops clientage 35 Cluentius Habitus jnr 31, 48, 55 Clutorius Priscus 63, 180 Code, Justinian’s new (CJ) 2, 137, 158–59, 159–64, 168–74; Justinian’s old (codex vetus) 158–9, 169; Theodosian (CTh) 2, 132, 136–7, 158, 168–74, 180 Codex Gregorianus 169; Hermogenianus 169

245

GENERAL INDEX

delict 3, 32, 159, 169, 187, 193 Demetrius, philosopher 139 demolition as penalty 26, 62, 72; see also church buildings demons 135, 141, 142; see also angels Demosthenes, Praetorian Prefect 162 deportation 81–82, 118, 157, 187, 189, 195 desertion of charge see tergiversatio deterrence 166, 168, 181, 182, 186, 188, 193 development of law 85; see also jurists Digest 2, 76, 104, 137, 158–9, 174–8, 188, 189, 191, 194 Dio Cassius 76 diocese (group of provinces) 133 Diocletian, emperor 101, 105, 109, 120–3, 133, 142, 169 Diogenes, former governor of Bithynia 153 Dionysius, bishop of Alexandria 111, 116– 7 Dionysus see Bacchus discipline of our times, public discipline 81, 126, 146, 183 discretion, judicial 191, 194; see also cognitio disinheritance 47, 164 distinctions, socio-legal in Later Empire; see also status divi fratres (Marcus Aurelius & Lucius Verus), emperors 51 divinatio in procedure of ordo 33 divination into the future 131, 140–2, 144–5, 151–2, 156–7; see also magic divorce 141, 162, 163, 164, 167 dolus 159, 174, 175–76, 181, 195 Domitian, emperor 56, 64, 75, 88–9, 92, 102, 133, 190 Domitius Afer 64 Domitius Celer 61 Donatus, confessor 105, 128–29 dowry 163 drugged wine 120 druidism 26 Drusus Caesar, brother of Germanicus 57, 61, 63, 73, 74 due process 3, 5, 55, 77, 120, 125, 128–9, 138, 149, 174, 196, 197; lack of 88–9, 146, 150–1, 152–53, 154, 156, 185, 192 Dulcitus, governor 124–5 Duronia 10–11 Duronius, L. 24 duty, religious 19, 20, 27

Crassus, Marcus Licinius 40, 43 crime, definition of 3, 28, 178, 193; crime and punishment crimes of the ordo see ordo iudiciorum publicorum crimina extraordinaria 159, 169; see also extra ordinem Crispina, martyr 126 crucifixion 40, 73, 106, 123, 137, 145, 184 Culcianus, Prefect of Egypt 125–6 culleus (sack) 44–7, 55, 146, 169–70, 185– 86, 190 culpa 159 cults, foreign ch. 1 passim, esp. 25–7; rulings against 18, 25–6, 27, 102; see also druidism; Egyptian rites; Magna Mater curator civitatis (logistes) 122, 126 curatores locorum publicorum 72 curial see decurionate curiosi 136 curse tablets 59, 74 custom, ancestral (mos maiorum) 25–7, 51, 53, 60, 102, 109, 165, 180 Cyprian, St, bishop of Carthage 101, 111, 115–16, 117–20, 126, 127, 128, 195 Cyrene edicts see SC Calvisianum death, free choice of (liberum mortis arbitrium) 182, 189; and martyrdom 100; more maiorum 184, 190; penalty 21, 22, 29, 46, 103, 105–6, 108–9, 118, 121, 123, 137, 146, 160, 162–64, 165, 166, 168, 182, 187–93; see also capital penalties decapitation by axe 106, 184; by sword 106, 119, 122, 125, 126, 195 Decius, emperor 99, 103, 104, 108–11 decurionate, decurions 5, 46, 105, 121, 133, 139–40; see also magistrates, municipal defence, right to a 174; defences of ignorance 165; self defence 174, 184; superior orders 71, 76, 87–88, 174; youth 124 defenestration 65 defensores civitatis 159–60 degradation from rank 72, 85, 90, 164, 188, 195 delation as an offence 117, 140, 147–8 delators (delatores) 5, 35, 63–64, 92, 94, 135 delegation: municipal 43, 53, 133; provincial 83, 86–89, 95; senatorial 133, 145

246

GENERAL INDEX

Fabian, bishop of Rome 111 Faecenia Hispala, see Hispala falsum (forgery) 9, 22–3, 24, 29, 38–9, 75– 76, 84, 96–7 familia of exiles limited 81 family law 168, 173 Favorinus, philosopher 181, 184 Felicity, martyr 194 Felix, bishop of Tibiuca 122 fetters or chains see vincula Fidustius 149–50, 151, 152 fines 81, 84, 90, 106, 166, 174, 189, 193, 195 fire, flames, as condemnation to death by burning 106, 115, 120, 124–5, 137, 146, 184 Firmicus Maternus 16, 143–4, 196 fisc 64, 139, 164; see also delators flagitia (frequently unspecified crimes) 9, 16, 21, 22–3, 99, 103 Flaminius, T. Quinctius 28 flexible or graduated penalties 83, 84, 92, 93, 108, 178, 183, 195; see also poena legis flogging 83, 106–7, 165, 195 Florus, comes rerum privatarum 164–65 Florus, procurator of Judaea 190 foederati, meaning of 20 Fonteius Magnus 94, 96 forced labour see opus publicum foreign cults see cults, foreign forgery see falsum forgiveness 167; see also repentance Fortunatianus 149, 154 fourth century and later criminal procedure 147–49; see also accusation, formalities free persons 105–8, 121, 160, 165, 195 freed persons 10, 25, 41, 42, 54–55, 75–6, 105–8, 122, 145, 163 Fronto, Catius 82, 84, 93 Fructuosus, bishop of Tarragona 120, 128 frumentarii 118 Fulcinius Trio, L. see Trio funerals & funeral rites 38, 61, 72, 119–20, 122, 171–2, 192; forbidden 113, 117; see also cemeteries; mourning; violation of sepulture furca 106

earthquakes 111, 167 East and West distinctions in the Empire 115–6, 122, 123, 192; eastern provinces 57, 132 eating of sacrificial meat 111, 114 economic penalties (also linked with honour) see confiscation; degradation; fines; patrimonial rights; profession, bans on practice of a; restitution Edict of the Urban Praetor 36 egregii see Glossary, ‘status’ Egypt 58–9, 125–6, 160–1 Egyptian rites 26; see also cults, foreign Ennius, an eques 63 enrichment, unjustified 79, 86, 87 enuptio gentis 25 equestrian order & equestrians 10, 19, 32, 39, 73, 79, 83, 121, 189–90; see also status equistrator 119 equites see equestrian order ergastula 40; see also prisons, private Erucius 44, 47–48, 50, 51, 52 escape from prison or exile 160–1, 174; see also turbulent behaviour Etruria 8, 9, 13, 23 Euctemon, apostate bishop of Smyrna 114, 115 eunuchs 134, 167 Eusebius, bishop of Caesarea 101 Eusebius, brother-in-law of Constantius 155 Euserius 150, 152 Eutropius, proconsul of Asia 152 evidence 31, 66, 68–9, 85, 84, 93, 138, 148; as to character 31, 47, 50, 67; half proof and full proof 148; torture (q.v.) always required with slaves 50–1; see also inquisitio exclusion from ballot for senatorial office 85 executioners 112, 119, 125, 146; executions, illegal methods 125; private as contrasted with public 22 exile 34, 38, 64, 78, 81–2, 84, 105–6, 116, 117, 160–1, 165, 166, 167, 184, 185– 86, 186, 189; applied to slave 27; see also deportation; interdictio; islands; relegation expiation 45, 46, 185 expulsion of undesirables from Rome 18, 21, 26, 102, 157, 165 extortion see repetundae extra ordinem 32, 34; extraordinary jurisdiction 45; see also cognitio

Galba, emperor 75 Galerius, emperor 101, 105, 109, 120–1, 123–4 Galerius Maximus 118–20

247

GENERAL INDEX

identification 122 illustres see Glossary, ‘status’ immoral contracts, invalidation of 165–6 immunity 25, 39, 71; see also pardon impalement 173, 193 imperium 184; maius imperium 57, 58, 73 incantations, oral or written 154; see also curse tablets incense, offerings of (thurification) 115–6, 126, 156 incest 51; charge against Christians 99, 127; incestuous marriages 164–5, 173 index, indices see informers inequality before the law 197 infamy (infamia) 83, 89–90 informers (indices) 16, 25, 29, 35; see also delators inheritances, disputed 162; unlawful contents 153–54 inquisitio, in repetundae trials 66, 82, 83, 92, 94 Institutes of Justinian 158, 169 intention (mens rea) 175–6, 184; see also dolus interdictio aquae et ignis 34, 49, 73, 78, 81– 2, 106, 185 interpolations 168–9 invalidation see immoral contracts Irenaeus, bishop of Sirmium 125 Irene, martyr 124–5, 191 Isis see Egyptian rites islands as places of exile 64, 81–82 Italy & Italians 7, 9, 17, 19–21, 24, 31, 36–7, 39–40, 63, 81 iudex quaestionis 33 iudices (provincial governors etc) 188 iudicia populi (assembly trials) 34, 62, 185, 187 iudicium publicum, as any criminal court 76; see also quaestiones perpetuae ius civile 81; gentium 81, 189; gladii see jurisdiction of provincial governors; occidendi of husband 188 iustitium 19

Gallienus, emperor 104, 120 Gallus, Caesar 131 Gallus, emperor 116 games (ludi) see gladiatorial; hunting; theatrical Gellius, Aulus 181 Gemonian Steps 68 Germanicus Caesar 39, ch. 3 passim, esp. 57–60; his legati 60–1 gladiatorial games & gladiators 123, 186 Glaucia, Mallius 42, 52 gods of Rome 7, 18, 25–7, 99, 109, 119, 127, 185, 194; see also supplicatio Goths 109, 116 governors, provincial ch. 4 passim, 133, 171, 179; see also jurisdiction Gracchus, C. Sempronius 32, 33 Gratian, emperor 130, 132 Great Mother see Magna Mater guardian(ship) see tutor, tutory gynaeceum 123–24 Gypsus 160 Hadrian, emperor 46, 50, 107, 169, 176, 194 hagiography 100 Heliodorus 149, 154–55 Herennius Pollio 93 heresy, heretics 167, 168, 173, 191 hermaphrodites 45 Hierocles 153 Hilarius 149, 151–52 Hispala, Faecenia 10–15, 16, 24–25 Hispanus, Fabius 87–88 homicide 9, 22, 30, 33–4, 38–9, 66, 141, 193 homosexuality 167–8, 170 Homullus 93, 94–5 honestiores 5, 105–8, 123–4, 146, 176, 188 hooliganism 108 hospitium: mutual hospitality 42; billeting 79 Hostilius Firminus 85 Hostius, Lucius 45 house arrest 15, 17, 61, 150, 166 human rights 3, 5, 196, 197; sacrifice (and use of body parts) 26, 45, 59, 137, 155 humiliation as punishment 182, 188, 191 humiliores 105–8, 146, 176, 188 hunting games 106, 186, 188 Hypatius, brother-in-law of Constantius 155

James, martyr 120 Jerome, St 183 Jews and Judaism 19, 101, 109, 135, 165, 168, 190 John, Praetorian Prefect 162, 166 Jovian, emperor 132 judges see iudices; jurors

248

GENERAL INDEX

repetundis (149 BC) 31; Cornelia de falsis 84, 97; Cornelia de sicariis et veneficis 33– 34, 82, 186; Cornelia on the proscribed 38, 39, 54; Iulia de adulteriis 188; Iulia de ambitu (49 BC) 95; Iulia de senatu 84; Iulia de vi (59 BC) 64, 80, 82, 107; Iulia iudiciorum publicorum 32; Iulia maiestatis (8 BC) 59, 60, 62–63, 66, 73, 82, 97; Iulia repetundarum (59 BC) 78–80, 82; Papia Poppaea 63; Pompeia de parricidiis (?52 BC) 46; Pompeia (55 BC) 84; Porcia 107, 187; Remnia (?91 BC) 36, 89–90; Sempronia ne quis in iudicio circumveniatur 33–4, 82; Valeria (82 BC) 37, 54; Voconia 63 liability 175–8, 195; diminished 174; of infants 176–7; of lunatics 175–6, 180; under puberty 176–7, 184; of rustics 165; of women 165, 174; see also defences libellatici 116; libelli recording sacrifice 110, 116, 123 libellus of accusation 103, 147 Liber and Libera 7, 11, 15, 18, 25; Liberalia 7, 15, 18; see also theatrical games Liberius, bishop of Rome 131 Libo Drusus, Scribonius 63, 67, 74 Licinius Crassus Dives, P. 27 Licinius Nepos 95 Licinius, emperor 126 lictors 184 lightning 140 Liguria 8 Livia, sister of Germanicus 73, Livia, widow of Augustus 57, 58, 71, 73, 74 Livilla, wife of Drusus 57 Livineius Regulus 65 Livy 1, 7, 15–6, 19, 23, 28, 185 local authorities see magistrates, municipal loss of rank see degradation Lucius, martyr 113, 120, 127 lunatics see liability Lustricius Bruttianus 96–7 luxuria see blasphemy; homosexuality Lyons, martyrs of 103, 108, 113, 119, 127, 128

Julian, emperor 127, 131–32, 136, 142, 180 Julius Caesar 32, 34, 39, 78, 80, 185, 186 Julius Ferox 83 Junian Latins 163 Junius Silanus, G. 98 jurisdiction, domestic 180, 187, 188; imperial 65, 75–6, 79, 96–7, 146, 151– 53, 188, 196; municipal 108, 113; of provincial governors etc 64, 81, ch. 5 passim, 133, 159–60, 182, 188; senatorial 19, 28, 64–74, ch. 4 passim, 188 jurists 76, 98, 104, 106, 107–8, 128, 137, 159, 170, 174–8, 179, 181, 182, 191, 193–5, 196 jurors, jury 31–2, 41, 75 jury courts, standing see quaestiones perpetuae Justin, emperor 158, 171–2 Justinian, emperor 2, 3, 104, 157, ch. 7 passim, 180, 191–2, 193, 195 kidnapping 40 knights see equestrian order knowledge contrasted with practice 102; see also dolus Lactantius 101 lapidatio 184 lapsi (the lapsed) 101, 115–6, 127 Larinum 40 Latins 21; see also Junian Latins law, classical 169, 173; reform 32, 190, 196; schools 158, 169 lawyers 112, 125–6, 133, 158 leading questions 50, 107 legal privileges 5; ignored 73; removed 105, 121, 123–4; see also status legal sources 158 legislation, general 168; in force 168; Justinian’s ch. 7 passim; see also lex; rescripts; senatusconsulta legitimacy of children 163, 164–5 lenocinium (condonation) 167 lenones 165–6 Leo, emperor 167, 171 Lepcis 82, 83, 85, 133 Lepida, Aemilia 65 Lepidus, M. Aemilius 65, 74, 180 Lepidus, apostate 114 le`se-majeste´ 170 Lex Acilia 32; Antonia (49 BC) 39; Appuleia (103 BC) 62; Aquilia 159; Calpurnia de

Macrianus, a rationibus 116–17 magi 26, 137 magic 3, 4, 59–60, 67, 99, 108, ch. 6 passim, esp. 135, 140–2, 171, 192, 193; see also astrology; poison

249

GENERAL INDEX

Mithridatic War 37 mitigation see flexible penalties mobs 68 Modestinus, jurist 104 Modestus 138, 149–50, 151–2 Montanus, martyr 113, 120, 127 moral wrongdoing 178 mos maiorum see custom, ancestral; see also death motivation (dolus, culpa, casus) 175–6 mourning forbidden 38, 72 municipalities see Ameria; Arpinum; Larinum; see also decurionate murder see homicide mutilation as (legal) penalty 38, 124, 165, 167, 168, 173, 190, 191–2; meant metaphorically 134 mutiny see military discipline

magistrates & officers, municipal 21, 24, 79, 110, 111–2, 113–4, 122, 124–5, 189; see also decurionate; Roman see aediles; censors; consuls; praetors Magna Mater 26–7, 28 Magnentius 131, 137 Magnus see Roscius Magnus, T. Magnus, a Bithynian 95–6 maiestas see treason Malleolus, Publicius 44–45 Mallius Glaucia, see Glaucia Manichees, Diocletian’s edict against 121 Manlius Capitolinus, M. 184 Marcellus, martyr 120 Marcian, emperor 171 Marcian, jurist 175 Marcianus, Flavius 83–5 Marcius Philippus, Q. 8, 20, 23 Marcus Aurelius, emperor 121, 191, 196 Marianus, martyr 120 Marinus, martyr 120 Marius jnr 37 Marius snr 37, 41 Marius Gratidianus 38 Marius Priscus see Priscus marriage 25, 173; laws of Augustus concerning 63, 164; see also divorce; incest Martiales 40 Martina, poisoner 60, 62, 65, 74 martyrdom, martyrs ch. 5 passim mathematici see astrologers Maxentius, Caesar 123 Maximian, emperor 122–3 Maximilian, martyr 120 Maximin Daia, Caesar 123, 126, 191 Maximinus 145–6 Maximus, philosopher 153 Mena, Praetorian Prefect 159–62 mercy see clemency Mesalla, M. Valerius – Niger or Rufus 55 Mesopotamia 131, 165 metallum, condemnation in see mines Metellus, Marcus 50, 53; Metelli family 41, 42 Milan, Edict of 126 military discipline 58–59, 60, 66, 67, 73; service 23, 24 Milo, T. Annius 186 mines, condemnation to 83, 106, 117, 121, 125, 126, 188, 189, 195 Minucius Rufus, Q. 28

Naevius Matho, Q 24 Naevius, playwright 15 name change enforced 72 natural justice 83, 98; see also rule of law naumachiae 186 necromancy 137, 139, 155 Neoplatonism 135, 153–54 Nepos 75 Nero, emperor 79, 102, 182, 190 Nerva, emperor 92 New Comedy 15 Nicaea, Council of 101 Nigrinus 95–96 nocturnal rites 4, 9, 12–3, 17–18, 23, 27; theft 184; see also sacrifices, nocturnal nominis deferre/delatio see accusation, formalities of; see also delators non-citizens contrasted with citizens 2–3, 3–4, 103, 105–8, 187, 188 Norbanus Licinianus 75, 88–9, 91 notaries see secretaries Novels of Justinian 159, 164–8, 172–3 noxal liability 3, 187 Numerius, military tribune 155 Oasis, Great 160 Octavius, Gnaeus 37 office staff 112, 118–9, 126, 160–61, 171; see also soldiers Olybrius, Urban Prefect 145 Oppianicus jnr 48 Oppianicus snr 30, 33, 38–9, 47, 49, 51, 55, 186

250

GENERAL INDEX

optimates 37, 42, 55 opus publicum (forced labour) 106, 118, 123– 24, 126, 188, 189, 190, 195 oracles 109, 138–9 ordinary crime 3–4, 187 ordo iudiciorum publicorum [the system] 32, 64, 73, 169, 185, 189; its procedure 31– 3, 48, 64–5, 67, 84, 89–90, 95; its survival 67, 73, 75–7, 89; see also cognitio; crimes; extra ordinem; quaestiones perpetuae Osroene, province of 165 outcome, relevant to liability 175–6

philosophers & philosophy 4, 98, 101–2, 135, 142, 153–4, 179, 181, 185, 195, 196; see also Neoplatonism; Stoicism Phrygia & Phrygians 27 pimps see lenones Pionius, martyr 111–5, 128 Piso, Cn. Calpurnius pater 49, 51, ch. 3 passim, 179, 188 plague 109, 116, 167 Plancina, wife of Piso 57, 58, 60, 62, 65, 67, 69, 70–1 Plautius Silvanus 65 Plato 181 Plautus 8, 15, 45 plebeians 7, 15, 18, 105; see also status Pliny the Younger 2, ch. 4 passim, 103–4, 179, 181–2 poena legis 34, 73, 93, 180, 185, 188, 189 poison, poisoning 24, 34, 39, 59–60, 67–8, 75, 139, 145, 153, 184–5, 186, 193; see also Martina; Palladius Polemon, neokoros 111–3 police force non-existent 4, 35 Pollentia in Liguria 189 pollution see expiation Polyaenus, a Bithynian 96 Polybius 179, 185 Polycarp, martyr 103, 111, 127 Pompey 186 Pomponius Rufus 92 pontiffs 18, 26, 27, 185; office of pontifex maximus repudiated 130 Pontius Pilate 87 popular opinion 5, 127–8; see also mobs populares 37, 54 populus 17–18, 25, 28, 73 Postumius Albinus, Sp. 8, 9, 11–13, 16– 18, 20, 23, 24 Postumius, Lucius 23 potentes 134, 171 praemia see rewards praetors 24, 25, 27, 31, 33, 75; de maiestate 73; de veneficis 61; Peregrine 19, 102; Urban 19, 20–21, 24, 31, 33, 102 praevaricatio (collusion) 86, 88–9, 89–90, 91, 148 prefects 118; Praetorian 76, 97, 133, 145, 149, 151–2, 192; Urban 3–4, 64, 131, 145–46, 166, 188 pregnancy 124, 194 presumptions of guilt 160, 176; of innocence 33, 175; legal 64, 187

Paculla Annia 13, 19 paganism, pagans 130–32, 135, 136, 153– 4, 168, 169; survival of 130–1; see also priests, pagan Palladius 149–50, 154–55 pardon 71, 72, 103–4, 147, 148, 193 parents, covering up of abduction by 162–4 Parnasius, former Prefect of Egypt 139 parricide 30, 33, 40, 44–47, 169, 185–6 Parthia 57 Pasiphilus, philosopher 152 Paternus, Aspasius 117 Patricius 149–50, 151–2 patrimonial rights 81, 168 patroni (supporters at a trial) 50, 53 Paul, St 153 Paul, the ‘chain’ 138–9 Pauli Sententiae (PS) 137 Paulinus, Valerius 94 peculatus 51, 134 penal slavery 106, 173 penalties see capital; corporal; economic; flexible; see also damnatio memoriae; demolition; exclusion from ballot for office; exile; infamy; mourning forbidden; name change enforced; relegation; rescission; shaving of head perduellio see treason peregrines see non-citizens Peregrinus Proteus 108 perfectissimi see Glossary, ‘status’ Pergamius 149, 151 Perpetua, Felicity and companions, martyrs 103, 112, 113, 114, 128, 191, 194 persecution (proactive) of Christians 104–5; see also repression Persia & Persians 120, 121, 131–2, 149 Phileas, bishop of Thmuis 125–6 Philoromus, martyr 126

251

GENERAL INDEX

rebus repetundis 67, 78–9, 97; de sicariis et veneficis 31, 33–4, 39, 40, 45, 67, 75; see also ordo quinqueviri uls cis Tiberim 17 Quintilian 179 Quintillianus, governor of Asia 114–5 Quirinius, Publius Sulpicius 65

priesthoods, Roman 74; priests, Christian see clergy; priests, of mystery religions 13, 19–21, 27; priests, pagan 140; see also pontiffs Priscus, Marius 82–85, 86, 93, 97, 98, 188 prison 22, 24, 113–4, 115, 129, 138, 150, 160, 191, 193, 195; bishops and 160; women not to be imprisoned 166–67; prisoners’ property 119 prisons, private 161; see also ergastula private crimes see crimina extraordinaria; delict privileges see legal privileges Probus, Baebius 87–88 procedure see due process; fourth century; jurisdiction; ordo; time limits profession, bans on practice of a 90 proof, burden of 30, 148, 175; standard of 30, 175; see also evidence proscription and proscription lists 37–9, 54, 63, 186 prosecution by magistrate, ex officio 34, 64, 147; by private citizen, not a state service 34–6, 64, 89; morally dubious 36, 48, 86; morally justified 35; professional see delator prostitutes, prostitution 10, 163, 165–6, 194 provinces: see Africa, Asia, Baetica, Bithynia, Syria; see also eastern provinces provincial governors see jurisdiction; see also office staff provincials 2, 80, 88, 92, 94, 97, 98, 105, 132, 134, 188, 190, 192; see also concilium provinciae provocatio 21, 22 public crimes see crimes of the ordo public interest & safety 175–6, 181, 182, 193 Publius Aebutius see Aebutius punishment 3, 166, 168, 172–4, 177–78, ch. 8 passim, esp. 180–83; illegal 83, 166 Pythagoreanism 26

rape 9, 11, 36, 162; male 11, 14, 29 raptus see rape; ravishing ravishing (raptus) 162–4; see also abductionmarriage recantation 103–4, 117, 127, 129, 157; see also lapsi reconciliation 55, 74; see also social stability reform as purpose of punishment 168, 181, 182, 193–4; see also law reform relegation 72, 81–2, 88–89, 90, 91, 97, 117–18, 160–61, 189, 195 remand in custody 159–60 removal from Senate or curia see degradation renounce friendship see amicitiam renuntiare reparation see restitution repentance 167–8, 183 repetundae 31, 32, 67, ch. 4 passim, 188–89; defined 78–81, 85; extension of liability for 87, 91; see also saevitia repression (reactive) 99, 102–4, 108–9; see also astrologers; divination; philosophers; rhetoricians res repetundae, see repetundae rescission of governor’s acts 93, 189 rescripts, imperial 104, 169 responsibility see liability restitution 78–79, 80–1, 82, 86–7, 93, 97, 189 restitutus 147; see also pardon retribution 181, 183, 188, 193 rewards (praemia) for delation 5, 16, 18, 24–25, 35–36, 63–64, 74, 77, 89–90, 92, 135; of virtue 181 rhetoric, Latin 101, 132, 181; rhetorical colour 130, 137, 170–71, 180; rhetoricians 101–2 rights see civic; human; see also ius civile; ius gentium; patrimonial rights Romani, Romanitas 2, 132, 196 Romanus Hispo 64 Rome 2, 9, 18–19, 24, 42, 43, 47, 50, 52, 61–62, 63, 101, 118, 131, 144–7, 187, 189

quadruplatores see informers quaesitor 33 quaestio as interrogation under torture see interrogation; torture quaestio extraordinaria 16–18, 28, 34 quaestiones perpetuae (standing jury courts) 31–3, 34, 66–67, 187; de adulteriis 75; de falsis 75; de maiestate 62, 67, 73, 75; de

252

GENERAL INDEX

Turpillianum 88–89, 90; of 161 BC 102; of c. AD 17 102 Seneca 179, 181, 182–83, 194 Senecio, Herennius 86 Sentius Saturninus, Cn. 60–2, 68 sequestration 80–1 Servaeus, Q. 67, 74 Servianus, Julius 76 Servilii family 42 Severus Alexander, emperor 177 Severus Septimius, emperor 79, 92, 97 sexual abuse 165; offences 164, 165–6; see also adultery; homosexuality sexuality and Christianity 135 shaving of head 126 shepherds 23–24 Sibylline Books 26, 45, 153 sicarii 34, 39 sign of the Cross 121 Silanus, Creticus 58 Simonides, philosopher 152 Simplicius 139 Sirmium, Council of 131 Sixtus, bishop of Rome 118 slaves 3, 23–4, 38, 40, 50–1, 53–4, 55, 68, 74, 81, 90, 97, 103, 105–8, 123, 128, 145, 160, 163, 165, 167, 173, 180, 184, 187, 188, 193, 194, 195; their evidence necessarily under torture 50–1, 162; see also penal slavery; torture Smyrna see Pionius social stability 31, 36–49, 55, 74, 181, 185, 193, 196 socii 19–21, 36–7; Social War 36–7, 39 socio-legal distinctions see status soldiers 73, 112, 114, 134, 174 Solon of Athens 45 soothsaying (haruspicatio) see divination sorcery see magic Spartacus 22, 40 spectacles 186; see also games spectabiles see Glossary, ‘status’ standing jury courts see quaestiones perpetuae stantes 110 statues and portrait masks 68, 72 status differences 105–8; see citizen; free; freed; non-citizen; slave; see also equestrians; honestiores; humiliores; plebeians; senatorials; see further Glossary, ‘status’; women statutory penalty see poena legis

Roscius Capito, Titus 30–31, 42–44, 48, 51–53 Roscius Magnus, Titus 30, 42–4, 50–4 Roscius, Sextus jnr 40, ch. 2 passim, 179, 185–86; see also rural life Roscius Sextus snr 40, ch. 2 passim, esp. 42–4, 52, 54 rule of law 4, 55, 114, 117, 122, 128–29, 135, 172, 179, 196, 197; see also due process rural life, topos of its superiority 31, 47, 50 Sabina, confessor 111–2 sack, penalty of see culleus sacral law 46, 61, 185 sacrificati 116 sacrifices: impious 73, 137, 155; nocturnal 4, 137, 142, 156; pagan 105, 109, 123, 137, 156; test of Christianity 103–5, 109, 111–2, 114–5, 124–26; see also human sacrifice sacrilege 133 saevitia (gross cruelty) 82–83, 94, 107, 188 Salvius Liberalis 75, 84, 89, 91 Sassia 51, 197 Saturninus 177–8 scelera see flagitia science 135, 153–4; see also astrology Scipio Africanus 27; Asiaticus 17; Publius 41, 50, 53; Scipiones 28, 42 scribae see secretaries secretaries 97, 112 sectores 38 security, real as well as personal see sureties sedition 18, 22, 59, 67 Sejanus 56, 68, 70 self help 3, 35–6 Sempronius Bassus 70, 73 Sempronius Rutilius, T. 10–11 Senate 16–25, 26–7, 27–9, 33, 60, 61, 64– 74, 131, 147; procedure in ch. 4 passim, esp. 98; quorum see SC de bacchanalibus; see also jurisdiction, senatorial senatorial order 19, 31–2, 145; senators 39, 51, 58, 75, 79, 97, 98, 144–7, 186, 188, 190; see also status senatusconsulta (SCC) 18, 27, 74; SC Calvisianum 79, 82–83, 88, 92, 93; Claudianum 163; de bacchanalibus 1, 7– 8, 18–19, 19–22, 158; de Pisone patre 1, 57, 68–69, 70, 74, 158; Geminianum 84; Messalianum 84; Silanianum 51, 53;

253

GENERAL INDEX

throats stopped with molten lead 162 thurification see incense Tiber, River 38, 42, 68 Tiberius, emperor 2, 26, ch. 3 passim, 79, 81, 87, 91, 98, 102, 133, 179–80, 188, 189 time limits in legal proceedings: on speeches 67, 84, 93; on completing the case 161–2, 172 Titus, emperor 64, 197 toleration 25, 126 tombs, see violation of sepulture torture 5, 107–8, 128–29, 139, 145, 172, 191; in civil cases 123, 162, 173–4, 194–5; extension to honestiores 121, 123, 139–40, 141; as punishment 191; regulation of 50, 107, 194–95; of slaves 50–51, 107– 8, 162, 173, 193 traditio see books Trajan, emperor 50, 64, 76, 78, 81, 82, 84, 95–96, 96–97, 97, 98, 103–4, 138, 175, 179, 181, 190, 194 treason (maiestas) 28, ch. 3 passim, esp. 62– 63, 86, 97, 107–8, ch. 6 passim, 145, 193; see also lex Iulia maiestatis tresviri capitales 3–4, 17, 19, 187 Tribonian 158, 181 tribuni plebis (tribunes of the people) 22, 24, 37, 184, 187 Trio, L. Fulcinius 63, 64–65, 67, 74 triumphs 186 Tuccius Cerealis 83 turbulent behaviour when exiled 160, 174 tutors; tutory 10, 25 Twelve Tables (XII T) 18, 33, 184, 195

Stilonius Priscus 88 Stoicism 4, 69, 180, 182, 188 stoning see lapidatio strangulation in prison 83, 152, 184 strator 119 street crime 3–4, 187 stuprum 22–23 subpoena of witnesses 94–5, 98 subscriptores 33; see also accuser Suburanus 76, 97 Suetonius 99 suicide 19, 24, 63, 69, 76, 83, 86, 184, 188–89 Sulla 32–4, 36–40, 41, 42–43, 53, 55, 62, 63 Sulpicia 11–13, 15 Sulpicius Rufus, P. 37 superior orders see defences supernatural (both religion and magic) 135 supplicatio (universal act of worship) 104, 109–11 supplicium summum/ultimum 106, 161, 191, 195; see beasts; crucifixion; fire sureties 160, 166, surrender (traditio) see books Symmachus, Urban Prefect 131, 136 Syria 57–61, 68, 73, 108, 122, 126 Tacitus 1, 56–7, 82–84, 97, 99, 179, 181–2 talio 167, 181 Tarpeian Rock, hurling from 184 Tarracina 44, 49 tattooing 89–90, 189 tergiversatio (desertion of charge) 89–90, 91, 96, 148 Tertullian 181, 191 thanks voted by Senate: to advocates 84, 91; to all orders of society 73–4 theatrical games 7, 15–16, 26–7, 106, 191, 197 theft 177, 184; at night 184 Theodora, Justinian’s wife 157, 168, 173, 194 Theodorus 150–52 Theodosian Code see Code, Theodosian (CTh) Theodosius I 132, 151, 156, 170 Theodosius II 132, 168, 171 Theodosius, father of Theodosius I 146 Theophanes, a Bithynian 92–4 Thessalonika 124 third century instability 133–4 Thrasea Paetus 155, 180

Ulpian 193, 194 ultimum supplicium see supplicium unjustified enrichment see enrichment usucapion prohibited 79 Valens, emperor 132, 142, 149–53, 154–6, 179–80, 182, 196 Valentinian I 132, 133, 142, 144–7, 150, 155 Valentinian II 132, 139–40, 169 Valerian, emperor 99, 104, 109, 116–20 Valerius Flaccus, L. 27 Valerius Messalinus 73, Valerius Pudens 108 Varenus Rufus 94–96 Varro 16 Veranius, Q. 60, 65, 67, 74

254

GENERAL INDEX

wills & will-making 10, 22–3, 29, 45, 81, 96 witchcraft 29 withdrawal of accusation see abolitio witnesses see evidence; subpoena women 9, 13–14, 17–18, 21, 22, 23, 57, 58, 71, 79, 118, 123–24, 125, 146, 165–6, 166–7, 174, 184–5, 191, 193; feminine frailty, topos of 29, 162; Justinian favourable to 163–4, 166; as priests etc of Bacchus 13, 20–21; see also adultery; brothels; poison; pregnancy; ravishing worship: foreign see cults, foreign; pagan 130, 140, 142, 156; private or secret 20, 25, 135, 140, 142; public 25, 135; unRoman 25–6, 27, 99 written proof see evidence

verdicts, range of 33 Verres 33, 66, 82 Vespasian, emperor 92 Vespronius Candidus 108 veterans of the legions 5, 105 Vibius Marsus, G. 60, 61 vicarius urbis Romae 145 vicars (of dioceses) 133, 192 victims, compensation for 163–4, 166, 187; see also delict; noxal liability; restitution vincula (fetters) 106, 118, 123, 138, 150, 172, 188, 189, 195 violation of sepulture 142 vis (violence) 34 Visellius Karus 70, 73 Vitellius Honoratus 83 Vitellius, Publius 60, 65, 67, 74 water clocks 84 weapons 133

Zeno, emperor 161, 171

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