Beyond Dogmatics: Law and Society in the Roman World 9780748631773

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Beyond Dogmatics

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EDINBURGH STUDIES IN LAW Series Editor Elspeth Reid (University of Edinburgh) Editorial Board David L Carey Miller (University of Aberdeen) George Gretton (University of Edinburgh) Sir Neil MacCormick (University of Edinburgh) Hector L MacQueen (University of Edinburgh) Kenneth G C Reid (University of Edinburgh) Reinhard Zimmermann (Max-Planck-Institute of Comparative Private Law and Private International Law, Hamburg) Previous volumes in the series: Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in Transition: TB Smith and the Progress of Scots Law (2005) Hector L MacQueen and Reinhard Zimmerman (eds), European Contract Law: Scots and South African Perspectives (2006)

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EDINBURGH STUDIES IN LAW VOLUME 3

Beyond Dogmatics Law and Society in the Roman World

Edited by J W Cairns and P J du Plessis

EDINBURGH UNIVERSITY PRESS

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© The Edinburgh Law Review Trust and the Contributors, 2007 Edinburgh University Press Ltd 22 George Square, Edinburgh Typeset in New Caledonia by Koinonia, Manchester, and printed and bound in Great Britain by Cromwell Press, Trowbridge, Wilts, Wilts A CIP record for this book is available from the British Library ISBN 978 0 7486 2793 6

The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

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Contents

Preface List of Contributors List of Abbreviations

vii ix x

DEBATES AND CONTEXTS Introduction: Themes and Literature J W Cairns and P J du Plessis 1 Law and Society A Watson

3 9

LAW AND EMPIRE 2 Legal Pluralism and the Roman Empires K Tuori 3 Diplomatics, Law and Romanisation in the Documents from the Judaean Desert E A Meyer

39

53

LAW CODES AND CODIFICATION 4 Roman Law Codes and the Roman Legal Tradition J Harries 5 Diocletian and the Efficacy of Public Law R D Rees

85 105

DEATH, ECONOMICS AND SUCCESSION 6 The Dutiful Legatee: Pliny, Letters V.1 A D E Lewis

125

7 The Hereditability of Locatio Conductio P J du Plessis

139

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COMMERCE AND LAW 8 Dealing with the Abyss: the Nature and Purpose of the Rhodian Sea-Law on Jettison (Lex Rhodia de Iactu, D 14.2) and the Making of Justinian’s Digest J-J Aubert 9 Suing the Paterfamilias: Theory and Practice D Johnston

157 173

PROCEDURE 10 Lawsuits in Context E Metzger

187

11 The Role of Delators O F Robinson

206

Index

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221

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Preface

This collection of papers was presented at a conference organised by the Edinburgh Roman Law Group in 2005. This group, the brainchild of the late Peter Birks – a brilliant jurist and sometime Professor of Civil Law in the University of Edinburgh – is an interdisciplinary forum dedicated to the study of civil law and the civilian tradition in its historical context. It attracts a wide audience consisting of students, members of the public and specialists, and it usually meets on three occasions during the course of the academic year within the School of Law, University of Edinburgh. At each of these occasions, the group is addressed by a distinguished scholar in the field. In keeping with the interdisciplinary nature of the Edinburgh Roman Law Group, it seems fitting that the first volume produced by it should also have a wide focus. The theme of this volume is “law and society”, a topic which has attracted much interest in legal scholarship both current and historical during the last decade. The broad aim of this collection is to address two perennial questions within this debate. First, whether law is a product of the society that produces it and, second, whether it should necessarily be assumed that a close relationship between law and society exists. The authors in this volume have taken Roman law, a body of legal rules which has had an enduring influence on much of contemporary private law in Western Europe and elsewhere, as the subject of their investigation. This is not a comprehensive account of Roman private law and its relationship to Roman society. Rather, the contributors to this volume have chosen specific areas of law and practice, currently the subject of debate, to investigate the relationship between law and society. It is hoped that the results produced by this selective investigation will encourage others to investigate the matter further. The Edinburgh Roman Law Group plans to host similar mini-conferences on the civilian tradition in its historical context in a four-year cycle. The next gathering will focus on the development of the ius commune in its historical sense in the period 1100–1400 and the rise of legal doctrine. It is envisaged

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that the collection of papers from this conference will form the second volume produced by the ERLG. This volume, and the conference which preceded it, would not have been possible without the financial assistance of the Small Project Research Grant Scheme of the University of Edinburgh and the School of Law: the Roman Law Group thanks both. Finally, the editors wish to thank the editorial board of the Edinburgh Studies in Law and specifically Elspeth Reid for keeping faith and accepting this volume for publication. JWC P J du P. Old College, July 2006

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List of Contributors

j-j aubert, Professor of Classics, University of Neuchâtel j w cairns, Professor of Legal History, University of Edinburgh p j du plessis, Lecturer in Law, University of Edinburgh j harries, Professor of Ancient History, University of St Andrews d johnston, qc, Advocate in the Court of Session; sometime Regius Professor of Civil Law, University of Cambridge a d e lewis, Professor of Comparative Legal History, University College London e metzger, Douglas Professor of Civil Law, University of Glasgow e a meyer, Associate Professor of Greek and Roman History, University of Virginia r d rees, Reader in Latin, University of St Andrews o f robinson, Douglas Professor (Emeritus) of Civil Law, University of Glasgow k tuori, Researcher, University of Helsinki a watson, Distinguished Research Professor and Ernest P Rogers Chair of Law, University of Georgia; Visiting Professor, University of Edinburgh

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List of Abbreviations

ANRW Bas C Cahier Glotz ch chs CLJ Cos CTh D FIRA Gai Inst Historia J Inst IEJ Index JJP JRA JRS Labeo Liv MichLR NTh P PCPhS RIDA

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Aufstieg und Niedergang der römischen Welt (Berlin 1989 →) Basilica Codex Cahiers du Centre Gustave Glotz (Geneva 1980 →) chapter chapters Cambridge Law Journal (London 1921 →) Consul Codex Theodosianus Digest S Riccobono et al, Fontes Iuris Romani Antejustiniani (Florence 1940–1943) Institutes of Gaius Historia: Zeitschrift für alte Geschichte (Wiesbaden 1965 →) Institutes of Justinian Israel Exploration Journal (Jerusalem 1950 →) Index: Quaderni Camerti di Studi Romanistici (Naples 1985 →) Journal of Juristic Papyrology (Warsaw 1946 →) Journal of Roman Archaeology (Ann Arbor Mich 1988 →) Journal of Roman Studies (London 1911 →) Labeo: Rassegna di Diritto Romano (Naples 1955 →) Book Michigan Law Review (Ann Arbor Mich 1902 →) Novellae Theodosianae Papyrus Proceedings of the Cambridge Philological Society Revue Internationale des Droits de l’Antiquité (Brussels 1948 →)

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list of abbreviations

RPR2 SCI SDHI Sec Tab TAPhA TH Tit TPSulp TvR Tyche ZDPV ZPE ZSS (rA)

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M Kaser, Das römische Privatrecht 2nd edn (1975) Scripta Classica Israelica (Jerusalem 1974 →) Studia et Documenta Historia et Iuris (Rome 1935 →) Section Tabula Transactions of the American Philological Association (Baltimore 1869 →) Tabulae Heracleensis Title Tabulae Pompeianae Sulpiciorum Tijdschrift voor Rechtsgeschiedenis (The Hague 1918 →) Tyche: Beiträge zur alten Geschichte, Papyrologie und Epigraphik (Vienna 1986 →) Zeitschrift des Deutscher Palästina-Vereins (Leipzig, then Wiesbaden 1878 →) Zeitschrift für Papyrologie und Epigraphik (Bonn 1967 →) Zeitschrift der Savigny Stiftung (romanistische Abteilung) (Weimar 1880 →)

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“There is no doubt that the Romanists of today are more alive to social and economic questions than their predecessors of fifty years ago. Even so, the systematic coherence and conceptual smoothness of the law they are concerned with are so seductive that the temptation to forget about the rugged realties behind the façade is far greater for them than, for instance, for an English legal historian.” David Daube, Roman Law: Linguistic, Social, and Philosophical Aspects (1969) 65

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DEBATES AND CONTEXTS

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Introduction: Themes and Literature J W Cairns and P J du Plessis In 1967, John Crook published Law and Life of Rome. Facing the first page of the introduction, he provocatively placed the invocation “Iuris consultus abesto”. The imperative has been as little obeyed as “vade Satana”. This said, at the time the book was not widely reviewed, and such reception as it had was mixed, despite the fact that in the 1960s, Roman law was a more active field in university law faculties than it has now become. It was thus largely ignored in the traditional journals devoted to Roman law, particularly in those countries where English-language literature was not commonly read. Franz Wieacker, however, reviewed it relatively sympathetically in the Savigny Zeitschrift, recognising the virtues of its interdisciplinary aims.1 On the other hand, J E Spruit was rather more critical, his review devoted to detailing specific misunderstandings of the law, while ignoring the book’s wider interdisciplinary ambitions.2 Ancient historians were also critical of the book. Gail McKnight Beckmann thought it was too academic and that Crook had missed an opportunity to write a popular work.3 Works that transgress traditional disciplinary boundaries always attract criticism and challenge; complaints of error in specialist and particular subjects were and are easily made. It is also obvious that those who considered themselves as Roman lawyers did not like the way Crook had organised the material, ignoring traditional understandings of the structure of Roman law. They were uncomfortable with the way law was treated, not as a science of its own, with its own approaches and methodology, but, instead, simply as a branch of ancient history. Crook’s book has exerted little influence on most scholars of Roman law, who have still tended to treat their material as an ahistorical given only to be investigated and expounded dogmatically. Of course, this is not so historically neutral as it might seem. Indeed, few would deny that much of their writing still assumes a political and social background established by nineteenth1 F Wieacker, Review (1968) 85 ZSS (rA) 562. 2 J E Spruit, Review (1970) 38 TvR 577. 3 G McK Beckmann, Review (1968) 12 AJLH 58.

3

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century scholarship that is generally left unexamined if not in fact unquestioned. Elizabeth Meyer recently pithily observed in her book on Roman tabulae: The Roman empire of the Romanist is still much the same orderly commonwealth that Mommsen imagined, a recognizably modern state grounded in the rule of law. But the Roman empire many contemporary Roman historians now imagine has evolved into something weaker, less rational, and more ad hoc: they see in Rome the deliberately arbitrary and enjoyably corrupt monarchies of the ancien régime, old Sicily rather than modern Zurich.4

The work of Crook, however, has inspired a small number of (mainly) ancient historians to appreciate the value of a broader, more interdisciplinary, approach, which places the study of the law of the Roman Empire within various other academic disciplines such as legal history, ancient history, classics and patristic studies. Without slighting others, a few names may be mentioned. In 1980 Bruce Frier published Landlords and Tenants in Imperial Rome, a work that Peter Stein described as “emancipating the lawyers from ‘the illusion of timelessness’ in the arguments of the Roman jurists”.5 With this work and his The Rise of the Roman Jurists: Studies in Cicero’s Pro Caecina (1985), Frier has, particularly in North America, raised the profile of this approach to Roman law in the ancient world. Frier’s pupils, Susan Martin, Dennis Kehoe and Thomas McGinn, have produced powerful and convincing studies utilising this approach. In particular, Martin and Kehoe have applied this method to the relationship between law and economics. In Investment, Profit, and Tenancy: The Jurists and the Roman Agrarian Economy (1997), Kehoe argues that Roman law had a strong foundation in economic needs that has hitherto been neglected. Martin’s The Roman Jurists and the Organization of Private Building in the Late Republic and Early Empire (1989) is an interesting study of the interaction between juristic thought and building practice. On the other hand, McGinn, while not ignoring economic issues, has looked at the law’s regulation of prostitution. In Italy, the works of Luigi Capogrossi Colognesi on property law such as Economie antiche e capitalismo moderno: la sfida di Max Weber (1990) have followed a similar approach. In the Netherlands the doctoral thesis of Boudewijn Sirks, Food for Rome: The Legal Structure of the Transportation and Processing of Supplies for the Imperial Distributions in Rome and Constantinople (1991), could be cited as an example. Though innovatory, its 4 E A Meyer, Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice (2004) 3. 5 P G Stein, Review (1982) 26 AJLH 396, 396.

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publication in a series not widely distributed, meant that it has not always received as much publicity as it deserves. Elsewhere in Europe this approach has recently led to a number of important publications, such as, in 1994, Jean-Jacques Aubert’s Business Managers in Ancient Rome – a Social and Economic History of Institores. Jean Andreau’s work, translated as Banking and Business in the Roman World (1999), investigated a related economic theme; a rich and fascinating book, it examined the important Murecine archive of the Sulpicii and that of Iucundus the moneylender. Influenced by these developments and innovations, and reflecting parallel concerns, ancient historians (mainly) in the United Kingdom have collaborated in research on the law codes of Late Antiquity. Jill Harries’ work on the Theodosian Code may be singled out in particular, resulting in her publications Law and Empire in Late Antiquity (1999) and The Theodosian Code: Studies in the Imperial Law of Late Antiquity (1993) (edited with Ian Wood). All of these have been specific and relatively narrowly focused programmes of research, but in 1999 David Johnston published Roman Law in Context. This synthesis was in many ways a shorter and more nuanced version of Crook’s Law and Life of Rome, though considerably more focused on the Roman law. Despite this, it did not meet with unmitigated praise from some scholars working firmly within the German dogmatic tradition, who, while admitting the virtue of collaboration between ancient historians and scholars of Roman law, still raised the type of criticism that Spruit had earlier levelled at Crook.6 Many of the American and European scholars interested in combining Roman law and ancient history this way came together in two edited collections published in 2002: Speculum Iuris: Roman Law as a Reflection of Social and Economic Life in Antiquity, edited by Aubert and Sirks; and Thinking Like a Lawyer: Essays on Legal History and General History for John Crook on his Eightieth Birthday, edited by Paul McKechnie. As a Festschrift, the latter was very varied, ranging rather outwith the scope suggested by the tempting title; the former, however, had a definite programme. Before turning to that, it may be noted that, like Crook’s Law and Life of Rome, it has received mixed reviews.7 Problems similar to those noticed by Spruit were evident: ancient historians sometimes did not fully appreciate the intricacies of the law and how it worked. Though invidious to single out any one 6 J Filip-Fröschl, Review (2002) 6 EdinLR 129. But see Wolfgang Ernst and Eva Jakab (eds), Usus Antiqus Juris Romani: Antikes Recht in lebenspraktischer Anwendung (2005). 7 P J du Plessis, Review (2003) 7 EdinLR 275; E A Meyer, Review (2004) 54 CR 200; N Morley, Review (2004) JRS 201.

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contributor, it is nonetheless helpful here to indicate this by the example of David Cherry’s paper “Gifts between husband and wife: the social origins of Roman law”. This basically speculative chapter not only promises far more than it can deliver, but is fundamentally misconceived, simply because the author does not realise that the main purpose of this rule was to prevent fraud. This is a point that our first-year law students instantly grasp. Paradoxically, in Cherry’s case, failure to understand the law in books results in failure to understand the social and economic purpose of the law. The programme developed in Speculum Iuris can be inferred from the subtitle: Roman Law as a Reflection of Social and Economic Life in Antiquity. Scholars of Roman law have not traditionally approached their topic in this way, other than a few jejune remarks such as, for example, that the contents of the class of res mancipi reflect what was important in ancient agriculture, or that the development of contracts bonae fidei is somehow related to the economic expansion of Rome and the influx of foreigners. Given that the last significant ancient historian to have an impact on the study of Roman law was Theodor Mommsen, and indeed that, unconsciously or not, most scholars of Roman law very obviously still work within historical frameworks established by that great German scholar, the time is ripe for their reassessment. There can be absolutely no doubt but that “traditional” scholars of Roman law have much to learn from such a programme. At the same time, ancient historians have much to learn from scholars of Roman law and their richly textured dogmatic analysis of the texts. In fact, the editors of Speculum Iuris explicitly recognise the value of such collaboration in their respective conclusions.8 If it is important for those who are specialists in ancient history and those who are specialists in Roman law to collaborate, debate with, and learn from each other, the present book makes a modest beginning. What is important is that it initiates and provokes debate over the Crookian approach, the gist of which is that in order to understand their purpose and efficacy legal rules should be examined in light of the society which produced them. This book does so by starting with a far-ranging chapter by Alan Watson, in which, taking into account the recent scholarship represented by Speculum Iuris, he presents his view that Roman law, once established, was further developed by the jurists with little regard for social and economic needs, and defends himself against the criticisms that his work has attracted.9 It must be remembered that Watson, as the distinguished pupil of David Daube, would 8 B Sirks, “Conclusion: some reflections”, in J-J Aubert and B Sirks (eds), Speculum Iuris: Roman Law as a Reflection of Social and Economic Life in Antiquity (2002) 169; J.-J. Aubert “Conclusion: a historian’s point of view”, in J-J Aubert and B Sirks (eds), Speculum Iuris 182. 9 See, e.g., A Watson, The Spirit of Roman Law (1995).

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always have agreed with the sentiments expressed by Daube in the quotation that serves as a motto for this book. In the rest of the volume both ancient historians and scholars of Roman law test and react to both Watson’s position and the aim of seeing “Roman law as a reflection of social and economic life in antiquity”. In such a collection of essays, general coverage is impossible. The present volume includes chapters within the following broad areas: provincial and customary law; law codes and codification; succession; commercial law; and civil and criminal procedure. These are of course rather legal classifications: alternatively, we can see discussions about divisions of power between centre and periphery, death and economic reality, dispute resolution, and commercial risk. The contributions do not group themselves around any particular period: like Watson’s chapter, they range over much of Roman antiquity, if particularly from classical to late antiquity. This periodisation follows the primary interests traditional in British scholarship, whether of ancient historians or scholars of Roman law. Thus the chapters of Roger Rees and Harries are located in the current British concerns with late antiquity. Ernest Metzger’s chapter on procedure is founded in lively debates, running powerfully through contemporary British scholarship, stimulated by the discovery and publication of the Lex Irnitana in the 1980s.10 The chapters of Metzger and Meyer demonstrate the value of examining and re-examining the rare survival of legal documents from the Roman world. Metzger shows how the Murecine tablets permit fuller understanding of Roman procedure. Meyer’s chapter on the Babatha archive allows us to see the penetration of the ways of Roman law into the periphery of the Empire, even among a group not likely to be sympathetic to Roman power. Andrew Lewis argues that a close reading of a letter of Pliny the Younger throws up insights, not only into the law on succession, but also legal practice in the area. Olivia Robinson’s account of delators, based on legal and literary sources, illustrates how the development of imperial bureaucracy affected criminal procedure. Aubert’s and Johnston’s chapters focus on the economic aspects of law. While employing traditional Roman law scholarship, such as paying attention to the palingenesis of the texts, Aubert demonstrates how the law of jettison developed in relationship to locatio conductio. Johnston deals with the use of slaves in commerce and the protection measures open 10 E Metzger, “The current view of the extra-judicial vadimonium” (2000) 117 ZSS (rA) 133; D Johnston, “Vadimonium, the Lex Irnitana, and the Edictal Commentaries”, in U Manthe et al (eds), Quaestiones iuris: Festschrift für Joseph Georg Wolff zum 70.Geburstag (2000) 11; A J Rodger, “Vadimonium to Rome (and elsewhere)” (1997) 114 ZSS (rA) 160.

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to the owner. Paul du Plessis considers why lease was heritable in law and practice. Kaius Tuori reminds the reader that scholars still rely considerably on nineteenth-century, often German, conceptions that now should be reexamined. Roman law not only has a history but a historiography. As a whole, the chapters bring into focus what may be at issue in the debates over the value of considering the law in the light of social and economic practice. They suggest that, though there are undoubted differences of nuance and emphasis, there is not such a radical divide as is sometimes suggested. Rather, the absence of any meaningful collaboration between ancient historians and scholars of Roman law has created a false division. Watson himself stresses that he realises the importance of context and social reality.11 As the criticism of Crook suggests, what has often been dressed up as some sort of major scholarly dispute looks in fact rather more to be a tendency to identify mistakes as requiring condemnation of an entire enterprise. What this volume shows is that collaboration can produce useful results. Thus, study of legal documents such as the Murecine archive, or the lex Irnitana requires to take place against a background of law in books; the study of the law in books is also thereby enriched. But as with most joint ventures, there are perils. These can be summed up in Sirks’ statement that one must be “aware of one’s limitations in the other field” as “the main safeguard against mistakes”.12 These are of course old debates, reaching back to at least the sixteenth century. For example, in 1823, the young French jurist Athanase Jourdan criticised the recent translation by Villemain of (the recently discovered) De republica of Cicero, in the form of a letter to David Irving, librarian of the Advocates Library in Edinburgh, because of the translator’s ignorance of Roman law.13 Jourdan wished to emphasise to classicists, philologists and ancient historians that they neglected Roman law at their peril, just as jurists needed to be aware of history.14 The lesson is still apposite. The scholar of Roman law needs to maintain awareness of continuing and current research in ancient history and a willingness to move away from nineteenth-century, essentially German, conceptions of law. The ancient historian needs to respect law as a discipline, which may require detailed knowledge of rules, principles and concepts. The collaboration between law and history can thus produce fruitful results. 11 A Watson, “Law and Society”, below, 9. 12 Sirks, “Conclusion” (n 8) 179. 13 A Jourdan, “Lettre à M Irving sur la traduction de la République du Cicéron, par M Villemain” (1823) 5 Thémis; ou bibliothèque du jurisconsulte 417. 14 On the context, see J W Cairns, “The influence of the German Historical School in nineteenthcentury Edinburgh” (1994) 20 Syracuse Journal of International Law and Commerce 191, 194199; J Bonnecasse, La Thémis (1819–1831): Son fondateur, Athanasse Jourdan, 2nd edn (1914) 198-218; D R Kelley, Historians and the Law in Postrevolutionary France (1984) 85–92.

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1 Law and Society A Watson A. INTRODUCTION I have long been fascinated by the relationship between law and society. My book, Legal Transplants (Edinburgh, 1974) was written in 1970 but despite my best efforts I could not find a publisher until 1974. Then the book fell stillborn from the press. It took more than a decade before it attracted attention. The main theses are simple: 1 There is no necessary correlation between law and the society in which it operates. Of course, there is some connection but precisely what that is is not inevitable, and may often be tenuous. Law is very much the culture of the lawmakers. 2 Law once created lives on even in very different circumstances, also for a very long time, even for centuries. 3 Law transplants easily, even to very different societies. I would add that governments are usually little interested in making law, especially private law, and leave this task to subordinate lawmakers, such as judges and lawbook writers, to whom they do not give the power to make law.1 B. THE JURISTS AND THE LAWS IN ROME Let me give a few simple examples. 1 The Roman Twelve Tables of around 451–450 bc drew a distinction between furtum manifestum and furtum nec manifestum, manifest and nonmanifest theft. The action for the former was for four times the value of what was stolen, for the latter double. What exactly was the difference between the two? The matter was of dispute among the classical jurists2 and was not settled even in the time of Justinian.3 I have been told the issue was of no importance because thieves have no money. But the issue was important because if a slave committed theft, 1 I have published much on the subject since. 2 Gai Inst 3.183–3.194. 3 J Inst 4.1.3; D 47.2.3–5.

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the owner was liable: either to pay the amount or deliver the slave in noxal surrender. The owner’s choice would often be determined by the issue of whether the theft was manifest or non-manifest. 2 Roman partnership. I would like to discuss aspects of it in three historical stages, beginning with stage two. ii. Around the third century bc4 the praetor introduced in his edict a model formula for partnership which was a partnership of all the assets of the partners.5 But there were two other forms of partnership existing then: partnership of one business; and partnership of one transaction. But no separate formulae for these were ever issued. That for all one’s property had to do for all. Yet partnership of all one’s assets can scarcely have been the most important case when the formula was issued. It cannot have been a commercial contract. It is likely to have existed only among relatives or close friends who ran a farm together. But then why is it given the sole formula? Why is there no formula for a partnership of one business? To seek for an answer we must go to stage one. i. At Roman law, only a free person who was not in paternal power could own property. Sons and daughters could own nothing. So if a paterfamilias died intestate, the sons and daughters (who inherited equally with sons) owned everything in common and in equal shares until they divided the inheritance.6 This ercto non cito, “inheritance not divided”, was the original and sole partnership. The force of tradition was such that when centuries later commercial partnership was introduced, the sole formula was for partnership of all the assets of the partners. Tradition rules, OK? Stages two and one together take us to stage three. iii. Gai Inst 3.149 records an earlier dispute: However, there was a great question whether a partnership could be formed on such terms that one party would take a larger share of the profit but a smaller share of loss. And Quintus Mucius thought not, because it was contrary to the nature of partnership. But Servius Sulpicius, whose view has prevailed, considered that such a partnership could be made; indeed, he went so far as to say that the contract can be entered on the terms that one party makes no contribution at all to the loss, but takes a share in any profit, so long as his services are regarded as so valuable that it is fair for him to be brought into the partnership on those terms. For it is now accepted that a partnership agreement can validly require one party to put up money but not the other, while 4 See A Watson, The Law of Obligations in the Later Roman Republic (1965) 126. 5 Cf. Otto Lenel, Das Edictum Perpetuum, 3rd edn (1927) 297–299 § 109. 6 And in early times leaving a will would be most uncommon. See, above all, D Daube, Roman Law: Linguistic, Social, and Philosophical Aspects (1969) 71–75.

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still giving both parties equal shares of profit. Some people’s services are often as valuable as a money contribution.”7

Both Quintus Mucius, consul in 93 bc, and Servius, consul in 51 bc, were celebrated jurists. But what is the nature of the dispute? Modern commercial lawyers would have no difficulty in agreeing with Servius. It is self-evident that one partner’s contribution can be so great that he should enjoy a greater share of any profit than he would suffer from any loss. Quintus Mucius’ doctrine of equality seems unrealistic but it is more. It goes back beyond the edict to the old ercto non cito. Legal tradition dies hard. 3 One further example among many, the actio aquae pluviae arcendae, from a provision of the Twelve Tables of around 451–450 bc. The general issue for consideration is: to what extent, in what ways, and with what remedies, may an owner of land be restrained by his neighbour from using his land in a way that is otherwise lawful in order to avoid causing a financial loss or reducing a financial benefit to the neighbour? I will look only at one issue concerned with water law: flow to a neighbour’s land. The problem, of course, is that almost any agricultural, domestic, commercial or industrial use of water by one landowner will have an impact on other landowners.8 This section as a whole points to two general conclusions. First, I argue that the starting-point in the granting of legal remedies will have a considerable impact on the unfolding of the law. Legislators, judges and jurists alike are so blinkered by the legal tradition that it is hard for them to change the thrust of the law. Second, in the absence of comprehensive, satisfactory legislation, subordinate lawmakers such as judges and jurists may well hold differing analyses of the law over a long period of time. It is not always true that one successful approach replaces another. The older approach may also continue. In this part I will consider first Roman law, then French law. The Roman approach to the water usage problem framed above is, at first glance, deceptively simple. The Twelve Tables, the famous codification of Roman law around 451–450 bc, gave a remedy9 si aqua pluvia nocet – literally, “if rainwater does damage”. Precision on the original scope of the remedy is not possible,10 but this clause of the Twelve Tables set the scene for future development. By the first century bc at the latest, the praetor (the 7 The translation is that of W M Gordon and O F Robinson, The Institutes of Gaius (1988) 352. 8 For a detailed examination of a part of the problem that is not discussed here see M Taggart, Private Property and Abuse of Rights in Victorian England (2002). 9 Tab VII.8a. 10 See A Watson, Rome of the Twelve Tables: Persons and Property (1975) 160.

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elected official in control of the courts) had issued a model formula for the action: “If it appear that the work was done on the estate at Capena, from which rainwater injures the estate of Aulus Agerius (plaintiff), on account of which Numerius Negidius (defendant)11 ought to ward off that water from Aulus Agerius, if that matter is not restored at the discretion of the judge, etc.”12 This formulation of the issues remained the basis of the law even in the sixth-century reign of the Emperor Justinian. The cause of action was available only when the injury was the result of “work done” (opus factum), it was restricted to injury in the country,13 and the thrust of the action was for restitution of the status quo ante. Consistently with this, even in the Republic of the first century bc, jurists interpreted “if rainwater does damage” to mean “if it can cause damage”.14 Pecuniary damages were awarded only for loss occurring after the beginning of the action.15 As was usual in Roman law, this brief formulation in the praetor’s edict depended for its impact on interpretation by the jurists. Key elements of the remedy are not described. Still, the formula set the ground rules, and it must be emphasised that never again in the development of this area of the law did the Roman state intervene by legislation – though, as noted at the end of this section, three interdicts of limited significance were issued by the praetor. Not all aspects of the water usage law need be considered here. Instead we will look at only a few of the main elements: the nature of the opus factum which would give rise to the action; the impact of the formulation si aqua pluvia nocet, “if rainwater does damage”; and the harm that was treated as actionable. The following discussion from Ulpian, a jurist active in the early third century ad, is probably the most significant description of the requisite opus factum: Quintus Mucius says this action is not available on account of that work which was done with a plough in order to cultivate a field. But Trebatius would make an exception not for work done with a plough to cultivate a field but only for ploughing to secure a crop of grain. 4. But Mucius said that even ditches made to drain fields were made in order to cultivate a field, but they ought not to be made so as to cause the water to flow in one channel. Thus, one ought to make one’s own 11 Aulus Agerius and Numerius Negidius are the standard names for the Roman plaintiff and defendant, respectively. 12 Se paret opus factum esse in agro Capenate, unde aqua pluvia agro Ai Ai nocet, quam ob rem Nm Nm eam aquam Ao Ao arcere oportet, si ea res arbitrio iudicis non restituetur etc. The reconstruction of the formula is the work of Lenel, Edictum (n 5) 375 § 177. 13 D 39.3.1.17, 39.3.1.19–20 (Ulpian, Edict 53). 14 D 40.7.21 (Pomponius, Plautius 7); D 39.3.1 (Ulpian, Edict 43). 15 W W Buckland, A Textbook of Roman law, 3rd edn by P Stein (1963) 598.

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field better in such a way that one does not make one’s neighbour’s worse. 5. But if he can plough and sow even without water channels, Mucius says he is liable for such, although he seems to have acted in order to cultivate the field: but if he could not sow unless he made the channels he is not liable. But Ofilius says it is lawful to make water channels for the purpose of cultivating a field if they are all made to run in the same direction.16

As in other areas of the law, the basic legal positions seem to have been fixed as early as the last century of the Republic. Of the three jurists mentioned in the texts, Quintus Mucius was consul in 95 bc, Trebatius was a protégé of Cicero, and Ofilius belonged to Julius Caesar’s inner circle.17 Even the differences of opinion between them expressed in the texts seem, surprisingly, never to have been resolved. What is striking at first glance (and remains so even after reflection) is the extremely wide scope that the jurists gave to opus factum. Almost all works done by humans on land that would increase the flow of harmful water on another’s land would give rise to an action. Although Quintus Mucius would allow an exception for ploughing for agricultural purposes, Trebatius would restrict even this to the shallow ploughing needed for grain crops, and apparently would not even make an exception for the rather deeper ploughing needed for vines and olive trees.18 Mucius would also allow an exception for making water channels only when they were needed for planting and sowing; but even then he would permit an action against a landowner who allowed the surplus water to run onto a neighbour’s land in one channel. Ofilius, however, would seem to be rather more lenient towards a landowner’s using water for irrigation, even though a neighbour suffered loss from the surplus. Alfenus, another jurist of the first century bc, is recorded as having expressed a clear view simply.19 A landowner could not be restrained from ploughing as he wished, even if by placing his furrows in a different direction his neighbour would be uninjured. On the other hand, if he made water channels which did, or even might, injure a neighbour through the flow of water onto his land, he could be compelled to fill them in.20 Thus, ploughing was unexceptional, but irrigation or drainage was not. Pupils of Servius, of whom Alfenus himself was one, are recorded as holding that the action to ward off rainwater could be brought when someone planted willows and as a result water overflowed and injured a neighbour’s land.21 A slightly broader 16 17 18 19 20 21

D 39.3.1.3–5 (Ulpian, Edict 43). See W Kunkel, Herkunft und soziale Stellung der römischen Juristen (1967) 18, 28. See Columella, De Re Rustica 2.2.24. D 39.3.24 (Alfenus, Digest 4). D 39.3.24.1–2 (Alfenus, Digest 4). D 39.3.1.6 (Ulpian, Edict 53).

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view of unexceptional activity may have been current in the first century ad, when Labeo disallowed the action when the work was done for the gathering of fruit crops of any kind.22 There is an element of ambiguity in the treatment of the subject by Ulpian, the jurist whose works were most used by the compilers of Justinian’s Digest. At one point Ulpian writes that Sabinus and Cassius, both jurists of the first century ad, held that man-made works all came within the scope of the action unless they were for the purpose of cultivating a field.23 Almost immediately afterwards, however, Ulpian says that the same jurists wrote that the action would lie when man-made water channels caused injury by an increased or changed flow.24 Presumably these jurists, Labeo and Ulpian, intended that all non-agricultural work would give rise to the action where damage might result, and that some, but not all, agricultural work would be excluded from the scope of the action. Their view, then, would not represent a change from some views expressed in the preceding century. As demonstrated by the texts so far examined on opus factum, the law remained remarkably static; the opinions expressed in the Republic in the first century bc were valid in the classical law of the third century Roman Empire as well as in sixth-century Byzantium when Justinian’s Digest was published. Odder still, perhaps, is the inescapable conclusion that issues disputed in the first century bc were no nearer settlement in the sixth century ad. But the most surprising fact of all is the wide interpretation given of opus factum in this context. Virtually any operation on land, except the most basic agricultural use, that increased the flow of rainwater onto a neighbour’s land, or changed its course so that the water did damage, would give rise to the actio aquae pluviae arcendae – an action whose primary purpose was the restoration of the status quo ante. No encouragement whatever was given to the improving landlord. Alternatively, one might find the surprising fact to be the very opposite: some agricultural uses of land would not give rise to the action even if a neighbour suffered loss as a result. Certainly, if the law was that a neighbour had a right to an action for loss caused by water flowing onto his land because of opus factum, there was no logical reason for refusing the action where the work done was ploughing for the cultivation of grain while granting it on account of other ploughing, or for refusing the action where the work done was making channels for the purpose of planting while granting it where the channels were for irrigation. 22 D 39.3.1.7 (Paul, Edict 18). 23 D 39.3.1.8 (Ulpian, Edict 53). 24 D 39.3.1.10 (Ulpian, Edict 53).

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Law frequently develops with a logic of its own that seems independent of social and economic needs, and so it was in regard to yet another aspect of the availability of this action. The Twelve Tables’ wording provided legal redress “si aqua pluvia nocet” – “if rainwater does damage” – and all subsequent juristic attention for wrongful damage by water in the country focused on this provision. But water actually injured only when it increased or flowed in a different channel, not when it was diminished or disappeared. Hence, the actio aquae pluviae arcendae did not apply when your neighbour cut off or reduced your water supply: D 39.3.1.11 The same jurists [Sabinus and Cassius] say that everyone has the right to retain rainwater on his own land or to channel surface water from his neighbour’s onto his own, provided no work is done on another’s land (for no one is prohibited from benefiting himself provided he does not injure another) and no one is liable on this account. 12. Then Marcellus writes that no action, not even the action for fraud, can be brought against one who, while digging on his own land, diverts the stream of his neighbour. And certainly the latter ought not to have an action25 if he acted not with the intention of injuring his neighbour but to improve his land.

So, for reducing a neighbour’s water supply the actio aquae pluviae arcendae did not lie, nor did any other action except perhaps the action for fraud (actio de dolo) when one acted deliberately to injure one’s neighbour and not to benefit oneself. This was the law from the earliest times and remained the law in the age of Justinian. Just as the scope of the action for increasing the flow of water seems extraordinarily wide, that for diminishing the flow seems extraordinarily narrow. And not only is it obvious that a water supply is needed, but we know from numerous texts on the servitude of drawing water or of aqueduct that water from a neighbour’s land was frequently wanted.26 No satisfactory explanation for this phenomenon can be drawn from economic or social conditions. An explanation must be sought within the law itself.27 The wording of the Twelve Tables and the name of the action were directed to warding off rainwater, and governments were so little interested in private law that the Roman state never again intervened to provide a further remedy (except for the interdicts still to be discussed).28 And jurists were so blinkered 25 The text may be corrupt at this point. Theodor Mommsen suggests that it spoke expressly of the action for fraud: The Digest of Justinian vol 3, T Mommsen and P Krueger (eds) translated into English by A Watson et al (1985) 396 note 2. 26 See, e.g., D 39.3.8 (Ulpian, Edict 53); D 39.3.11 (Paul, Edict 49); D 39.3.17 (Paul, Plautius 15). 27 On the general phenomenon of legal development, see A Watson, Slave Law in the Americas (1990) 1–21. 28 For present purposes I do not intend to go into the meaning of “rainwater”, aqua pluvia. It is enough to know that generally it meant any water that was increased by rain. For a more

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by their legal culture that they never sought to interpret the Twelve Tables’ clause to include damage caused by deprivation of water. Similarly, only legal tradition can explain why the law did not change to allow the judge in some circumstances to award compensation to the injured neighbour, rather than to order the defendant to destroy or permit to be destroyed the offending works. Obviously, it would frequently happen that potential gain to the maker of the work would be greater than loss to the neighbour, yet the latter would not agree to any deal. In other contexts judges were given discretion in the way the decision was formulated.29 In still others, they were able to issue a money judgment for a sum equal to what the defendant ought to give or do in accordance with good faith.30 As is typical, the Roman jurists seem to be unconcerned with social realities. There is not a word in our sources about neighbours doing a deal. But deals will have been common. So far we have been concerned only with private law. The Roman jurists, in fact, drew a remarkably sharp distinction between private law and public law, and dealt almost exclusively with the former,31 by which they meant the interaction between one individual and another. In this instance, consideration of a public law dimension turns out to be illuminating. The Romans treated some rivers as public, and the praetor issued an interdict concerning these: “Do not do anything in a public river or on its bank, do not put anything into a public river or onto its bank, by which its position or its course for shipping becomes worse” (D 43.12.1; Ulpian, Edict 68). What counted as a public river was not entirely settled, but for Cassius, Celsus and Ulpian it was a river that flowed all year round (D 43.12.1.3). Because this edict dealt only with interference with navigation, its effects were restricted to navigable rivers (D 43.12.1.12) or, in the view of Labeo, to public rivers that visibly contributed to making navigable the river into which they flowed. For such public (or navigable) rivers, then, the right of landowners to use the water was restricted in the public interest. But this restriction would also benefit their neighbour. The landowner could not divert the public river or reduce extended discussion, see A Watson, The Law of Property in the Later Roman Republic (1968) 155; A Rodger, “Roman rain-water” (1970) 38 TvR 417. Nor in this will I address the question of impure water flowing onto another’s land, or of any distinction between public and other rivers. 29 E.g., the actio pro socio (action on partnership); actio finium regundorum (action for regulating boundaries); actio communi dividundo (action for dividing common property); and the actio familiae erciscundae (action for dividing an inheritance): Buckland, Textbook (n. 15) 252. 30 E.g., the actio tutelae (action on guardianship); actiones empti et venditi (actions on sale); and the actio mandati (action on mandate). 31 See A Watson, The Making of the Civil Law (1981) 144–167. The Roman jurists also dealt to a moderate extent – and no more – with criminal law and procedure.

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its flow considerably. Thus, for such rivers the neighbour would in practice have equal right to a reasonable use. Much more to our purpose would seem to be the second interdict. Ulpian gives its wording: “The praetor says: ‘I forbid anything to be done in a public river or on its bank or anything to be put into the river whereby the water flows in a different manner than it flowed in the previous summer.”32 This interdict applied to any public river, including those that were not navigable (D 43.13.1.2). Ulpian explains its purpose in a text in which the manuscript reading is insecure: “The praetor provided by this interdict that rivers do not dry up [exarescant] by channels that are not allowed or that a changed river bed does not cause some injury to neighbours” (D 43.13.1.1). Exarescant is the reading of the inferior manuscripts,33 and it seems to be generally preferred. But the prime manuscript, the Florentine, actually reads the questionable word as excrescent, “that rivers do not increase in volume”. If that were accepted as the proper reading, this part of the provision would be similar to the law for the actio aquae pluviae arcendae. In either case, however, the interdict seems to have been given a very limited scope, for Ulpian explains that it was not applicable where a neighbour changed the volume of the water’s flow alone, but only where a neighbour changed the manner and direction of the current (D 43.13.1.3.). Thus, provided the neighbour did not use up all of the water in the public river, he could use and diminish the supply, as long as he did not change the manner of the water’s flow. There was no attempt to strike a balance in the amount of use of water by, or of injury to, neighbouring proprietors.34 This interdict contained only a prohibition, but it was closely associated with another interdict ordering restitution where something had already been done that changed the water’s flow (D 43.13.1.12f). These last two interdicts thus did have an impact on the water rights of neighbouring proprietors. What seems surprising, however, is the lack of interest shown in them in Justinian’s Digest, and hence apparently by the classical jurists. There is none of that detailed and subtle discussion that we find for the actio aquae pluviae arcendae. The relevant Digest title is very short and consists of only one text, by Ulpian in thirteen fragments, and he refers only once to another jurist, Labeo (D 43.13.1.13). The title on the actio aquae pluviae arcendae is much larger with twenty-six texts. The thrust, 32 D 43.13.1 (Ulpian, Edict 68). 33 See, e.g., the apparatus in the edition of Mommsen, Digest. 34 D 43.13.1.8 (Ulpian, Edict 68): “The interdict renders liable anyone who has caused a river to flow otherwise than it flowed last summer.”

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then, was always on that action. The neglect of the interdicts is most easily explained on the basis of the sharpness of the distinction between public and private law and the jurists’ emphasis on the latter.35 At any rate, this juristic focus on the actio aquae pluviae arcendae had a great impact on subsequent discussion in French law. C. DELICT AND THE ANCIEN DROIT Now I turn to the law as it was in France just before the promulgation of the Code civil in 1804. My aim will be to explain the law as it was then after centuries of development by local customs and the reception of Roman law, to estimate the impact of the Justinianic formulations. The most striking thing about the relevant French law on the eve of codification must be how little it had developed since the time of Justinian. Our starting-point for warding off rainwater should be Robert Pothier (1699– 1772),36 whose works have long been recognised as a source of inspiration for the draftsmen of the Code. In his Traité du contrat de société (1765), Pothier claimed that the actio aquae pluviae arcendae – he kept the Latin name – lay to the proprietor or possessor of a lower-lying field against his neighbour in a higher field when the latter, as a result of some work done on his land, collected water which fell onto the lower field in greater quantity and with greater rapidity than it naturally would have fallen, and so caused the proprietor of the lower field some loss. But if the water descended naturally onto the lower land there was no action, for it was not the higher proprietor but the nature of the land that caused the fall. Nor could the lower landholder complain on account of furrows that the superior landholder made when the furrows were only the ordinary furrows necessary for the ploughing of the field. The superior landholder could not make the furrows deeper or more on a slope than was necessary, however, even if by doing so he would improve his land; he could not improve his own land to the detriment of his neighbour.37 Pothier then quoted Quintus Mucius: “Thus, one ought to make one’s own field better in such a way that one does not make one’s neighbour’s worse.”38 35 Interdicts such as de aqua cottidiana et aestiva (daily and summer water), D 43.20, and de fonte (springs), D 43.22, are not relevant in this context. They were concerned with the acquired servitude right of drawing off water from a neighbour’s land, and simply prohibited force being used to impede the drawing off. 36 There is nothing on the subject in the work of Pothier’s great predecessor, Jean Domat, Les Loix Civiles Dans Leur Ordre Naturel (1689). 37 R J Pothier, Traité du contrat de société (1807) § 236. 38 Pothier, Traité (n 37) § 236.

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In the following article, Pothier claimed that, vice versa, the holder of the higher ground had an action against the lower proprietor who, by building a dam, caused the water to flood the higher ground.39 The plaintiff brought the action, said Pothier, for the destruction of the work that caused his loss: the destruction was to be at the cost of the defendant if the work was done by his order or by that of someone from whom he inherited; otherwise the defendant only had to allow the destruction at the cost of the plaintiff.40 Thus, all the law Pothier gave was to be found in the Digest title on the actio aquae pluviae arcendae and, indeed, he gave references to no other sources. He made no mention of the creation of a servitude right. Pothier also said nothing about the Roman rule which held that there was no remedy if a proprietor by work on his land caused an injurious reduction of water to his neighbour. Nor did he say anything akin to the content of the Roman interdicts. The case of Jean Domat is different. In his famous Les Loix Civiles Dans Leur Ordre Naturel he did not deal with the water rights of neighbouring proprietors. But Domat was inclined to draw a sharp distinction between private law and public law,41 and in his Le Droit Public42 – which is a continuation of his work on civil law – the following passage occurs: The use of rivers being public, no one can make any change which is harmful to that use. Thus, one cannot make the current of the water slower or faster, if this change injures the public or individuals. Thus, one who has property divided by a watercourse or who possesses two distinct properties on the two banks cannot for his use make a bridge which joins his two properties. Likewise, although one can divert water from a stream or a river to water one’s meadows or other land, or for mills or other uses, he must use that freedom in such a way that he does no harm either to the navigation in the river whose water he diverts, or in another that is made navigable by the water of the first, or to some other public use, or to neighbours who have similar needs and a like right. And if there is not enough water for all, or if the use that some make of it is injurious to others, all will be provided for, according to need, by the officers who have that responsibility.43

Thus, in general, Domat incorporated the law found in the Roman interdicts and, indeed, all his references were to the relevant Digest texts. Two innovations occurred at the end of the passage, however. As we have seen, a Roman remedy was not available against a proprietor who simply reduced 39 Pothier, Traité (n 37) § 237. 40 Pothier, Traité (n 37) § 239. 41 See A Watson, Failures of the Legal Imagination (1988) 11 (describing Domat’s grand plan to set out a scheme of law in an easily comprehensible arrangement, his view that public “crime” should not be mixed with civil matters, and his primary concern with civil law). 42 J Domat, Le Droit Public, Suite des Loix Civiles Dans Leur Ordre Naturel (1702). 43 Droit Public, liv 1, tit VIII, sec II, § 11.

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the volume of water to a neighbour, thus causing him injury. The two Roman texts that Domat cited as authority for his whole sentence were not relevant for this point. Further, Domat cited no authority – such did exist, but not in Roman law – for the other important innovation: when there was not enough water for the use of all, officers would be charged with deciding the relative needs and uses. Thus, law was changing, but very slowly, in France following the Byzantine Corpus Iuris Civilis that was based on Roman law of the third century ad that was only interpretation of a legislative provision of the fifth century bc Tradition is all important. Even here we should note the route of the modifications. They come from Domat, relying here on Roman law, but not on private law but Roman public law. Again one must ask whether social, geographical and other conditions were so similar for ancient Rome, early Byzantium and eighteenth-century France. D. DELICT AND THE FRENCH CODE I would like to give very briefly one more example of the impact of tradition. There are only five articles in the Code on torts, yet there are twenty-seven articles on the relatively unimportant contract of mandate, mandat. Why was tort law treated so briefly? Was the subject unimportant? The student who consults the annual edition of the Code civil published by Dalloz will discover that the commentary on the articles is extremely extensive, as befits the subject. But again the issue is not explained by societal conditions at the time of the codification. Vital underpinnings for understanding the French law of torts simply do not appear. The heading of the section in the Code is headed “Des délits et quasi-délits”. The distinction is not explained, and it does not appear again in the section. The section in the code begins: 1382. Every action of a human which causes injury to another binds the person through whose fault it occurred to make it good. 1383. Everyone is responsible for the injury which he caused not only by his action, but also by his negligence or imprudence.

Article 1383 may appear to state that failure to act gives rise to the action, but we know that this was not the purpose of the draftsmen.44 With the articles we can begin to answer some of the questions I have raised and which should be addressed by anyone interested in understanding tort law. 44 For the argument see Watson, Failures (n 41) 20–24.

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Roman law drew a distinction between delicta, delicts, and quasi delicta, quasi-delicts. Both gave rise to private law actions, but what the ground of the distinction was is not clear. Above all, the classification of quasi-delicts was difficult to understand, and debate rages to the present day.45 One influential – but clearly inaccurate – view which goes back at least to Accursius was that delicta were intentional wrongs, quasi delicta were negligent wrongs. The great Jean Domat whose Les Loix Civiles Dans Leur Ordre Naturel first appeared between 1689 and 1697 and was vitally important for the drafting of the Code civil took this approach. So he writes at book 2., title 8: One can distinguish three sorts of wrongs from which some damage may arise: those wrongs which amount to a crime or an offence; those wrongs of persons who fail in their agreed on obligations such as a seller who does not deliver the thing sold, a tenant who does not make the repairs he is bound to do; and those wrongs which have no relation with agreements and which do not amount to a crime or an offence, as if light-mindedly one throws something out of a window which spoils a suit; if animals not properly guarded do some damage, if one carelessly causes a fire, if a building which threatens to collapse, not being repaired, falls on another and there causes damage. Of these three types of wrong, only those of the last category are the subject of this title; because crimes and offences ought not to be mixed with civil matters, and everything which concerns agreements has been explained in the first book.

Thus, Domat cut out all treatment of delicta that he classified as crimes. But one delict thus omitted was wrongful damage to property by an action brought under the lex Aquilia. The action was for any injury caused negligently or deliberately by a human being. And this injury is central to any modern discussion of torts or delicts. The point of article 1383 was to indicate that negligence would also give rise to an action, yet apart from ancient and legislative history 1382 and 1383 could have been combined in one article. But the quotation from Domat tells us much more. He sees, as the quotation tells us, torts as covering something thrown out of a window – this resulted in article 1384 which was seldom used until late in the ninteeenth century; damage by animals – article 1385; and the collapse of a building – article 1386. The main subject-matter of torts, injuries caused negligently by a human, were excluded from consideration, hence the Code civil has so few articles on torts, but the explication of them in Dalloz is lengthy. My point is that to understand law in society one must understand law in books; and that to understand law in books one must know how it came to be 45 See, most recently, O F Robinson, “Justinian and the compilers’ view of the Iudex”, in H G Knothe and J Kohler (eds), Status Familiae, Festschrift für A Wacke (2001) 389; O F Robinson, “Gaius and the class of quasi-delicts”, in Vincula Iuris, Studi M Talmanca (2002) 120.

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in books. The development of law in books is not a straightforward matter. It is not a simple reflection of the interests of those in a position to make law. E. THE IMPORTANCE OF LAW To turn to the specific theme of this volume. In 1996 there was a panel meeting of the American Philological Association that resulted in a book, Speculum Iuris (Ann Arbor 2002) edited by Jean-Jacques Aubert and Boudewijn Sirks. The meeting was on the subject of Roman law as a reflection of social and economic life in antiquity. The chair of the panel meeting, Bruce Frier, asked Aubert, not entirely innocently, “whether the purpose of the panel was to take our senior colleague [Alan Watson] to task”. Aubert responded with a resolute and definite negative.46 Frier and I had previous disagreements: above all I thought his scholarship unsatisfactory.47 He is one of those who, following the theme of the panel, think law in some sense closely mirrors the conditions in society. This conviction predetermines their conclusions. Alas, law is not so simple as that and is mysterious in its development; this is well illustrated by the rather poor quality of some of the papers published in the book.48 I approve of the enterprise but have reservations. Heroes of the book are John A Crook’s Law and Life of Rome, 90 BC–AD 212 (1967) and David Johnston’s Roman Law in Context (1999).49 But Crook’s book evoked little enthusiasm from Roman law scholars precisely because his account of the legal rules is often just erroneous. Johnston’s first paragraph reads: To begin with what is not in this book may seem odd; but it will otherwise remain unknown until the end, which seems unsatisfactory. This is not a comprehensive account of Roman law, or even of Roman law in its social setting. It is highly selective. There is nothing here about criminal law, and next to nothing about public or constitutional law. The focus is on the so-called classical period of Roman law, from about the end of the Roman republic in 31 bc until the death of the emperor Severus Alexander in ad 235. There is nothing here about post-classical law; and there is almost nothing about pre-classical law.

46 J-J Aubert, “Conclusion: a historian’s point of view”, in J-J Aubert and B Sirks (eds), Speculum Iuris – Roman Law as a Reflection of Social and Economic Life in Antiquity (2002) 182. 47 See especially, A Watson, “The birth of the legal profession” (1987) 85 MichLR 1071. In fact, I believe that his book, The Rise of the Roman Jurists: Studies in Cicero’s Pro Caecina (1985), can be read as a paradigm case for the weaknesses of the sociological approach to Roman law. I write this because of my admiration for his abilities and learning. 48 A notable exception is the paper by B Sirks, “Sailing in the off-season with reduced financial risk” in Aubert and Sirks, Speculum Iuris (n 46) 134. 49 See, e.g., M Peachin, “Introduction”, in Aubert and Sirks, Speculum Iuris (n 46) 1.

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But why this focus? Why nothing about criminal law? Why next to nothing about public or constitutional law? Why nothing about post-classical law? Are we facing only a quirk of Johnston’s or is more going on? More is going on, and that should have given Johnston pause in writing a book entitled Roman Law in Context. And it should make readers think. And Johnston’s account is not, as he believes and would have us believe, highly selective. Rome had criminal law, and administrative and constitutional law. But criminal law appears in Justinian’s Institutes only in the final title of the final book (4.18) and in the Digest only in books 47 in part, 48 and 49. And administrative and constitutional law appear almost not at all. And Gaius’ Institutes has nothing at all on these subjects. We deserve an answer to my questions if we are to discuss Roman law in context, or even any law in context. The answer is blindingly simple and extremely uncomfortable. The Roman Twelve Tables of the mid-fifth century bc contain almost no criminal law and no public law. This for political reasons particular to conditions of the time. And interpretation – only interpretation – was granted to the College of Pontiffs, whose direct successors were the great jurists. Hence, the dominant interest of the jurists in interpretation of private law, scarcely any in criminal law, even less in administrative or constitutional law. The starting-point was law in context, the finish-line was not so. The Roman jurists stopped writing around ad 235. Hence no post-classical law in the Digest. My point, often made but almost as often ignored, is not that the jurists were unaware of social reality. Of course they were; almost all were socially prominent and some were top imperial bureaucrats. But they had a style of interpretation that was inward-looking and not too geared to social engineering. Michael Peachin writes: “Clearly there were also times when this or that jurist produced a legal argument simply for the sake of its own elegantia. But utilitas was often enough a real concern.”50 This is topsy-turvy. Elegantia was sometimes the concern of this or that jurist. But never, so far as I am aware, does a jurist argue for a decision on the ground that it is useful. We have not one such text. Certainly we do have texts claiming that a decision was reached utilitatis causa – a past decision. These texts point to an awareness of utility. But the texts do not say or even suggest that the original jurist used utilitas as the basis of his argument. And when we see utilitatis causa given as the reason for a decision we also perceive that the original opinion was an exception in the law. Of course, I recognise that my argument is counter-intuitive but I believe I am going by what the texts tell us about the Roman jurists. Usefulness was not a juristic argument towards a result. 50 Peachin, “Introduction” (n 49) 9.

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(1) Senatus consultum Silanianum My example here of law as the culture of the lawmakers can be chosen from the Roman juristic response to the decree of the senate known as senatus consultum Silanianum of ad 10. The senatus consultum provided inter alia that if an owner (dominus) was murdered, all the slaves who lived under his roof were to be questioned under torture and then executed; the opening of the will and acceptance of the inheritance were forbidden before the torturing and execution of the slaves (lest the slaves had become free as a result of being manumitted by the will); and a slave who revealed the killer of his master acquired his freedom by decree of the praetor.51 The jurist Ulpian explains the rationale: “Since otherwise no home can be safe unless slaves at the risk of their own lives are compelled to guard their masters both from members of their household and from outsiders.”52 The measure is harsh, but it is a brilliant legal solution to a fear that must bedevil all slaveowning societies. Yet, for individuals in the slave-owning class there could be drawbacks, however, if they were heirs to the murder victim and hence would be deprived of their new slaves or if their right in the slaves was less than full ownership. In the present context the issue is the juristic response. It is horrifying that the jurists treat the senatus consultum with everyday interpretation, like any innocuous law, sometimes to further the purpose of the senatus consultum, sometimes according to standards fixed in other contexts and with no apparent concern for the purpose of the senatus consultum. It is this, juristically blinkered, second approach that is interesting as an example of law as legal culture. Thus, if there is a usufruct, life rent, in slaves and the owner is killed, the slaves are tortured and executed;53 if it is the usufructuary who is killed, the slaves are not tortured or executed.54 This second decision would seem to defeat the purpose of the senatus consultum because the issue is the usufructuary who is murdered in his own home and the slaves are resident with him. He deserves protection as much as the owner, but his right to the slaves is not ownership so he gets no protection. Nor should one feel that the usufructuary’s economic interest in the slaves would be less than that of the bare owner; much would depend on the respective ages of usufructuary and owner and on the ages of the slaves. Similarly, a slave under the control of a bona fide possessor will not be 51 52 53 54

Cf D 29.5; Pauli Sententiae 3.5. D 29.5.1pr (Ulpian, Edict 50). D 29.5.1.2 (Ulpian, Edict 50). D 29.5.1.3 (Ulpian, Edict 50).

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executed. But a possessor in good faith is someone who received the slave thinking in good faith that he was receiving ownership. Again, if a son under paternal power is killed, he is to be considered (for this purpose) as the dominus.55 If he has been freed from paternal power, Marcellus is doubtful but Ulpian thinks he ought to be treated as dominus,56 but not if he had been given in adoption.57 Likewise, the senatus consultum does not apply if the murdered person was a foster child.58 But in all these instances the killing would have occurred in the home of the paterfamilias, the head of the family (so there was no breach of affection between, say, father and the grown-up son given in adoption). To satisfy the purpose of the statute, the decision should have been the same in all situations. But the answers given by jurists varied, according to the purely legal relationship to the father, in line with decisions in other fields such as intestate succession to the father. Even more legalistic or juristic is the decision of Paul in D 29.5.10pr: If a disinherited son was murdered before the inheritance of his father was accepted [i.e., under the will], the case is to be looked at according to how the facts turned out, so that if the inheritance was accepted the slaves are considered as if they belonged to someone else; but if the will has been voided, because they would have been his [i.e. the son’s] if he had lived, everything is done as if he were owner.

In Roman law, an heir under a will who was neither a slave of the deceased nor a free person in the deceased’s power who became sui iuris on his death became owner of the inheritance only when he made a formal acceptance. If he refused to accept the inheritance, the will was voided and the inheritance descended according to the rules of intestate succession. If there was intestacy or a will and the nearest heir was a direct descendant of the deceased who became sui iuris, such as a son, he became heir at the moment of death (unless he abstained from the estate). In the case decided by Paul a father died leaving a will in which he appointed an outsider to the family as heir and disinherited his son. Then the son was murdered, apparently in the paternal home. What was to happen to the slaves? Paul’s opinion was that one should adopt a wait and see approach. If the heir under the will accepted the inheritance, nothing was to happen to the slaves. Their ownership was in suspense between the testator’s death and the acceptance of the inheritance. If the testamentary heir refused the 55 56 57 58

D 29.5.1.7 (Ulpian, Edict 50). D 29.5.1.8 (Ulpian, Edict 50). D 29.5.1.9 (Ulpian, Edict 50). D 29.5.10 (Paul, Senatus Consultum Silanianum sole book).

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inheritance, the will failed, the disinherited son would be regarded as heir on intestacy from the moment of the father’s death, and the slaves would be treated as if they were his from that time and hence at the moment of his murder. Thus they would be questioned under torture and executed. The decision is legally irreproachable; but who but a lawyer would reach it calmly, following out the path of legal logic without pointing out the brutal absurdity and the pointlessness of the slaughter of individuals and the destruction of property? Paul’s approach in no way follows out the purpose of the senatus consultum, but it does display his legal acumen. As a final instance of the power of juristic thinking, remote from other concerns, on this senatus consultum we should note that its context in the edict was the law of succession. With other topics it was placed under the general rubric “Those whose testaments are not opened”, and there it was sandwiched between “If someone, having been passed over in a will, possesses an inheritance on intestacy” and “Legacies”.59 In Justinian’s Digest, the relevant book 29.5, is headed “Senatus consultum Silanianum and Claudianum: Those whose testaments are not opened” and lies between 29.4 “If someone having passed over a will possesses an inheritance on intestacy or in some other way” and 29.6 “If someone has prohibited anyone from making a will or compelled him to”. But reality could intrude. Thus, child slaves were not put to death (D 29.5.1.32), nor were slaves whose owner was killed by the spouse in the bedroom (D 29.5.3.2). Still, even when reality was emphasised by the public, law could still be law. Tacitus records60 that when a slave killed his owner, the prefect of the city, either when the slave was refused his freedom after he had paid the agreed price or because his owner was his rival in love, the populace rioted against the execution of the four hundred slaves who lived in the household. The famous jurist, Cassius, argued successfully in the senate in favour of the executions. There are several lessons to be drawn from the senatus consultum Silanianum even taken by itself. First, law can survive for a very long time in very different social circumstances. A rule of pagan Rome in ad 10 was still the law in Christian Constantinople in ad 533. Secondly, in particular circumstances legal culture may dominate inter59 See Lenel, Edictum (n 5) 363–365 § 168. The positioning of the senatus consultum in the edict would be a bureaucratic act but presumably with juristic involvement, and it was obviously approved by Julian.. 60 Annales 14.42–14.45.

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pretation of the law despite social realities. The law is the law. Yet social circumstances are not always excluded. Thirdly, cruelty is not always absent from the law. Fourthly, legislators are often not interested in law reform. Once the senatus consultum was introduced it was not altered by governmental intervention. Its scope was determined by juristic interpretation, and the jurists played by their own “rules of the game”. Fifthly, for what it is worth, the senatus consultum Silanianum was not accepted in any part of the Americas, and was the only institution of Roman slave law to have no impact. Abhorrence of cruelty is not the explanation. Slaves in America could be very cruelly treated, even in accordance with the law and common custom, especially in Spanish and Portuguese colonies and in Dutch Surinam.61 Were social and economic circumstances in this respect in America so very different from ancient Rome and Orthodox Christian Byzantium? (2) The concerns of the jurists To turn to a very different issue. In Speculum Iuris we are told on page v: Legal scholars in the early twentieth century spent much energy hunting for interpolations and found far too many. Nowadays, the trend in Roman law studies has swung back from a hypercritical approach to a more nuanced one, whereby the substance of legal texts, if not their form, is considered genuine unless proved otherwise with overwhelming arguments or evidence.62

I happily agree since I myself have argued that in Justinian’s Digest interpolations as to substance are restricted to a small number of easily recognisable categories.63 The Preface reasonably continues: “… legal scholars can capitalize on the thus restored trust in the texts to reconstruct classical and postclassical law”. Quite so. But here my problems begin in understanding approaches to issues of law in context, and not just for Roman law. Let us agree that classical texts in Justinian’s Digest tell us what the law was in the era before jurists stopped writing law books around ad 235. But did this law actually operate and how? How far did it reflect the values of society or of any part of it? If the idea of law in context is valuable – and I firmly believe it is – then how are we to explain the continuance of this law 61 See, e.g. Watson, Slave Law (n 27) passim. 62 Cf M Peachin, “Introduction” (n 49) 1. 63 A Watson, “Prolegomena to establishing pre-justinianic texts” (1994) 62 TvR 113; cf J H A Lokin, “The end of an epoch”, in R Feenstra et al (eds), Collatio Iuris Romani: Études dédiées à Hans Ankum à l’occasion de son 65e anniversaire I (1995) 271.

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of the pagan Roman Empire up to the third century in the Christian Byzantium of the sixth century? The Empire had undergone great economic and political changes, the hub of Empire had moved from Latin Rome to Greek Constantinople, and religious attitudes were vastly different. Was law still in context? Of course, it may be argued that the law was still in context; only the Digest gave only a partial view of the law. But then, if much of the substance has been excised, how can we recover the context? A first part of the problem is that the Roman jurists do not seem much interested in recording when and why particular rules were introduced. Thus, to begin with two examples discussed in Speculum Iuris: 1. Sulla’s lex Cornelia sumptuaria of 82–81 bc fixed the maximum price at which luxury goods could be sold. But why? Jurists give no explanation. Macrobius, Saturnalia 3.17.11 and Plutarch, Sulla 35.3 give explanations similar to one another but leave modern scholars very puzzled.64 2. Moribus, “by custom”, gifts were forbidden between husband and wife. The rule emerged in the late Republic but the date when it appeared cannot be established though it cannot be earlier than 204 bc.65 The rule was much discussed by the jurists and limitations on it were imposed. Modern scholars proffer various explanations of its origins, but none has won approval. To continue with a few examples not discussed in Speculum Iuris. 3. The lex Aquilia is the most important private law statute after the Twelve Tables. Chapter One provided that if a slave or four-footed herd animal was wrongfully killed the killer had to pay the owner the highest value the slave or animal had had in the previous year. Chapter Three dealt with the wounding of slaves and these animals and with the destruction or injury to other animals and inanimate objects with damages or penalty somehow connected with thirty days. But what was the rationale of the statute’s systems of recompense? When was the statute introduced? Was it passed in one stage or in two (or more)? Why is Chapter Two on an unimportant point of contract law sandwiched in between? None of the questions, not one, with a minor exception, is attended to in the juristic texts in Justinian’s Digest or in Gaius’ Institutes. There is complete silence which must reflect a lack of interest on the part of the jurists. How is one to set this most important law in context except for the banal point that somehow owners are to be recompensed for 64 See, e.g., P Wyetzner, “Sulla’s law on prices and the roman definition of luxury”, in Aubert and Sirks, Speculum Iuris (n 46) 15. 65 See D Cherry, “Gifts between husband and wife: the social origins of Roman law”, in Aubert and Sirks, Speculum Iuris (n 46) 34.

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wrongful injury to their property? The only clue – with one minor exception, and it is outside of literary sources and of the Corpus Iuris Civilis – is in Theophilus’ Paraphrasis 4.3.15. The minor exception is from Ulpian in D 9.2.1.1: “This lex Aquilia is a plebiscite because its enactment by the plebs was procured by Aquilius, tribune of the plebs.” Ulpian is confirmed in J Inst 4.3.15. Thus, we know that the lex Aquilia was relatively early. Theophilus takes us one step further and tells us that the law was passed at a time of dissension between the patricians and plebeians. Dissension is usually taken as secession – not necessarily correct – and the law is dated around 287 bc by most but not by all scholars. We need not at this point be more precise. What matters is our lack of information from the jurists. Was the killing, etc of slaves and herd animals an issue of the plebeians against the patricians? Had the struggle lasted for a year? Or, as has been suggested, is Theophilus’ reference to dissension simply a mistake? In the present context I do not want to investigate the solutions proffered (though elsewhere I have expressed my own). (3) Christianity in the Corpus Iuris Civilis To end this part on a very different note. We all know that early Byzantium was a hotbed of Christian debate. How is religion treated in the Corpus luris Civilis? Justinian’s empire was a hotbed of debate on Christian theology.66 But the Roman jurists were all pagans. Justinian did not add to their texts. The result is that in the body of the Digest there is not a single reference to Jesus or to his apostles or saints. No legal arguments are drawn from the Bible or from fathers of the church. Just as significant, there are only eight texts that contain the word deus, “god”. The texts are survivors. They once referred to “a god”, some pagan deity, now to “the God” of the Christians. The texts reveal nothing of the characteristics of pagan religion or of Christianity. They exist only because they are so antiseptic. Prime examples of this can be chosen from judicial oaths, which were a device to shorten lawsuits. At any point one party to a dispute could tender an oath to the other on a disputed matter. If that party swore the oath, the issue was regarded as settled in his favour. If he refused, the issue was settled against him. The oath would state by whom or through whom or by what 66 See, e.g. E dal Covolo and R Uglione (eds), Cristianesimo e istituzioni politiche da Constantino a Giustiniano (1997).

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it was sworn. Normally the oath would be sworn by a god, though this is not often expressed in the texts in the relevant Digest title, 12.2.67 One text, however, does mention swearing on the spirit of the emperor (per genium principis),68 and two mention swearing by a god (or God). One of these, D 12.2.33, may thus be translated: “One who swears by his own personal safety [per salutem suam], although he is regarded as swearing by a god (for he thus swears with regard to a divine spirit) is nonetheless not regarded as having sworn if the oath was not tendered to him in these express terms. Hence it is necessary to swear from the beginning in solemn form.” I have translated the text as would be appropriate for its original author, the pagan jurist Ulpian. The notion Salus was personified as the deity of public safety, or the safety of the emperor, and every individual would have his or her own protective spirit of “safety”. The legal issue in the text is that if the person to whom the oath is put swears “per salutem suam”, and if that wording does not correspond to the form in which the oath was put to him, then even though he was swearing by a divinity, the oath was void. The judicial oath must be sworn in the form in which it is proffered.69 The text is retained precisely because in the Christian world it would have a new meaning, demanding a different translation: “One who swears by his own salvation, although he is regarded as swearing by God (for he thus swears with regard to the divine spirit).” Other texts more clearly betray their pagan origin but can be understood in a Christian way. Thus D 24.1.5.12: So even if a husband gives to his wife as an offering to a god [ad oblationem dei] or land on which she had promised to erect a public building or dedicate a public temple [aedem publicam] the land will become sacred. But even if he gives something to her that the gift be given to a god or be consecrated, there is no doubt that it ought to be valid. Therefore if he placed oil on her behalf in a sacred temple, the gift is valid.

The background of this text of Ulpian is that gifts between husband and wife were in general void. Ulpian allows gifts by a husband to be valid as exceptions where the purpose is for the wife to use them as a religious offering. Only one more text of Ulpian, D 48.13.7(6), need be quoted in this connection: The proconsul ought to impose the penalty for sacrilege more severely or more mildly depending on the quality of the person, on the nature of the property and 67 References to a deity could be cut out. Often they would not exist in the original because they would be understood. 68 D 12.2.13.6 (Ulpian, Edict 22). 69 The other text in the title that uses the word deus, D 12.2.3.4 (Ulpian, Edict 22), also concerns this issue.

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the time, and on the age or sex. I know indeed that many have been condemned to the wild beasts for sacrilege, some even burned alive, others hanged on the cross. But the penalty should be tempered to restrict condemnation to the beasts to those who formed a gang and broke into a temple and took away by night offerings to a god.70

It is very obvious that texts treated in this way, wrenched out of their context, assigned a different meaning, can give us little indication of the importance of Christianity in early Byzantium, of the status of leading clerics, and of the violence of schisms. But the present text itself could be of enormous importance – not obvious on its face and perhaps not intended – because of the hatred of heretics. The behaviour of heretics, even of leading ecclesiastics, could readily be construed as sacrilege. To come now to Christianity in Justinian’s Institutes. In the body of the work there is no Jesus. There is no mention of apostles, saints or fathers of the church. The word deus, god, appears once only with no indication of whether this is the Christian God or a pagan deity. The text on criminal law, J Inst 4.18.12, concludes the work: But this we have set forth on criminal legal actions that it may be possible for you to touch them with your fingertip, and as if through an index finger. The knowledge of these matters will come to you otherwise more carefully from the fuller books of the Digest or Pandects, god willing.

Thus, for Byzantine first-year law students of the Institutes, no Christianity; for second, third and fourth-year students of the Digest likewise no Christianity. For the fifth-year students of the Code some Christianity. But there is a twist. The first four years of study were compulsory, the fifth year was an optional extra. Anyway, by the fifth year of study law students’ minds are fixed. To understand the relationship between law in books and law in society we must know the nature of the law in books that has come down to us. G. ROMAN CONTRACTS I could go on for ever. Barter, permutatio, was basic to social contractual agreements, but it scarcely reached the status of a contract even in the time of Justinian. Barter was a fundamental social contract, but not really a legal contract.71 More than that, the treatment of barter in the surviving legal sources shows juristic contempt. Thus, Gai Inst 3.141: 70 The remaining texts that contain the word deus are: D 1.1.2 (Ulpian, Institutes 1); D 4.8.32.4 (Paul, Edict 13); D 34.2.38.2 (Scaevola, Replies 3); D 49.14.3pr (Callistratus, Rights of the Imperial Treasury 3). 71 See already, A Watson, “Artificiality, reality and roman contract law” (1989) 57 TvR 147.

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The price must be in money. There is a considerable dispute whether the price of something can consist in other things, a slave, a toga or a piece of land. Our teachers think that it can. That is their inference from the common belief that an exchange of things is a sale, actually the oldest type. They appeal for support to Homer, who at one place says: “Then the long haired Achaeans bought wine, some with bronze and others with shining steel, some with hides and some with live oxen, other with slaves” and so on. The authorities of the other school take a different position and hold that exchange and sale are different contracts. In particular, they think it impossible in an exchange of goods to settle which thing has been sold and which given as price; they hold it absurd, again, that each thing be regarded as both sold and paid as the price. But Caelius Sabinus says that if you have something on offer for sale, a farm, for instance, and I give, say a slave as its price, it is the farm which is to be regarded as sold and the slave as given by way of price, for the purpose of acquiring the farm.

One text only! And that not in the immediate context of barter but of sale. And the main issue was only whether barter was a form of sale. But the issue goes further: there is a dispute between the Sabinians – Gaius’ school – and the Proculians. Gaius gives only the argument of the Sabinians. Stranger still, it is based on a text of Homer. But what possible authority could Homer be? None whatsoever! Yet the Proculians won by another Homeric quotation which is not mentioned by Gaius. Then we have an unacceptable, unworkable, theory of Caelius Sabinus. Indeed, it is rather silly. An obvious, workable solution would be to declare permutatio a contract with each party having the rights and duties of a seller in the contract of sale. There should have been no problem for any competent jurist. But the absurdities became even more obvious when we turn to Justinian’s Corpus Iuris. Thus, J Inst 3.23.2: The price must be in money. There used to be a considerable dispute whether price could consist in other things, a slave, a piece of land, or a toga. Sabinus and Cassius thought it could. That was their inference from the common belief that an exchange of things is a sale, actually the oldest type. They appealed for support to Homer, who at one place says that the Achaean army bought wine by giving goods in exchange. “Then the long-haired Achaeans bought wine, some with bronze and others with shining steel, some with hides and some with live oxen, others with slaves.” The authorities of the other school took the opposite position and held that exchange and sale were different contracts. In particular they thought it was impossible in an exchange of goods to settle which thing had been sold and which given as price; they held that logic did not allow each side to be regarded as both selling and paying the price. This opinion of Proculus that exchange was a contract quite distinct from sale rightly prevailed. He could also rely on some other lines of Homer, and his view was more logical. His position was accepted by earlier emperors and is more fully explained in our Digest.

The context in Justinian’s Institutes is again sale. This time the treatment is

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even odder. We are told there was once a dispute between the Sabinians and the Proculians. Now it is ended: in favour of the Proculians. But only one text is quoted – again from Homer, and it is that of the losing Sabinians. We are told that the Proculians also used Homer. But we are not given the text. Why we are not told. But the treatment does reveal the dependence on the Institutes of Gaius. History casts long shadows. But the treatment of barter in the appropriate title of the Digest, 19.4, De rerum permutatio, takes us even further into the realm of absurdity. The title is one of the shortest in the Digest with only two texts, both from the jurist Paul. The first text is really devoted to distinguishing barter from sale. The second tells us that since barter is akin to sale, there should be a warranty that a bartered slave be healthy, etc. In contrast to the treatment of barter, that of sale has one of the longest titles in the Digest, 18.1 with eighty-one texts; and the title is followed by seven others on aspects of sale. The last, D 19.1 on the relevant actions, has fifty-five texts. But now we come to the final indignity. D 18.1.1.1, also from Paul, gives us for the first and only time, the text of Homer used by the Proculians for their argument that sale and barter were different arrangements: And now, Jupiter, son of Saturn, so deranged the mind of Glaueus that he exchanged his armour with Diomedes, son of Tydeus.

But what on earth has this got to do with the issue of whether barter was the same thing as sale? The answer had to wait until 1949 – I repeat, 1949 - when David Daube produced the conclusive argument.72 The Proculian text had lost its last phrase, “giving gold for χαλκ bronze”. The Sabinians had translated the Greek as “for money”, hence barter and sale were the same; the Proculians were claiming that the offensive word meant bronze, the substance of which Diomedes’ armour was made, hence we have barter, and only barter, not sale. We cannot tell whether the omission of the phrase was due to Justinian’s compilers or was earlier. What matters for us is the absence of interest in barter as a legal institution. The important question – to which I have no answer – is: Why?73 But one oddity only takes us on to another. At a very early date, at least as early as the mid-fifth-century bc, Rome recognised two contracts, mutuum, 72 “The three quotations from Homer in Digest 18.1.1.1” (1949) 10 CLJ 213. 73 Of course, there were remedies for wrongs in a barter transaction that were not based on contract but they were not entirely satisfactory. See, e.g., F de Zulueta, The Institutes of Gaius, vol 2 (1953) 169.

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loan for consumption, and depositum, deposit. They had in common the characteristic that they were unilateral. Only the borrower and the recipient of the deposit were under an obligation – to return the object of the agreement or its exact equivalent. The contract had to be gratuitous: no interest on the loan, no payment for the deposit. But why? I have no explanation, but one must be provided. There is no textual evidence, but some explanation must exist. I have never seen any or, indeed, any discussion. But I cannot stop without mentioning the absence of a contract that was valid because it was put into writing. The old contract litteris discussed by Gaius in Inst 3.128 does not really count as is made clearer by J Inst 3.21.74 For Gaius, modern-style contracts in writing were restricted to peregrines and, in any event, had effect only when they were not accompanied by a stipulatio: Gai Inst 3.134. This text shows that the Romans knew of the possibility of a contract valid by being in writing.75 It might be objected that the absence of a contract valid by writing was of no great significance because agreement by itself would create a consensual contract. But any such argument would fail to take into account that for sale there would be no warranties against eviction or latent defects unless these were provided for by an oral stipulatio. Just imagine the difficulties of contracting at a distance! The important question is again why is a contract in writing absent from law in books. H. CONCLUSION I have no doubt that the objection will be made to my approach that I do not distinguish between law in books and law in action. Of course I am well aware of the difference. But I would insist that one cannot understand law in action without knowing law in books. And to understand law in books one must take account of the facts set out at the beginning of this chapter, and emphasised throughout. To put it crudely – and I accept that by nature I am crude – law in the Roman legal sources very frequently does not reflect the values and interests of society at large, or even of those in a position to make and change the law. Why should it? Life has much more to offer. And there are better things to do with one’s time. As my father used to say: “Living? Our wives will do that for us!” But our wives and our servants also have better things to do. Thinking is hard. To envisage new-fit law involves thinking. To do nothing is easy. To borrow existing law is easy. And it is respectable to borrow from a respected source. And it involves little thinking. 74 Cf J A C Thomas, The Institutes of Justinian (1975) 226–227 75 Cf A Watson, Legal Transplants, 2nd edn (1992) 33.

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Addendum I mentioned earlier in this paper that Bruce Frier asked Jean-Jacques Aubert whether the purpose of the panel meeting of the American Philological Association in 1996 was to take me to task, really for neglecting law in action as distinct from law in books. I strongly deny that I neglect law in action, and would single out my already mentioned book, Slave Law in the Americas, which very much separates out law in action from law in books. A fundamental argument of mine was that to a very great extent the main influence on slave law in territories dominated by countries of continental Europe was Roman law which was non-racist whereas slavery in the Americas was profoundly racist. Law in action was fundamentally different from the law in the books. Significantly, that book, of all my works, received the least attention. And what little there was was critical. My explanation for this lack of interest – self-centred as I always am – is that the reviewers were reluctant to get involved with the realities of the peculiar nature of law in books. The main goal of this chapter is to come to grips with the issue of law and society. My fundamental argument is that those who write in the context of Roman law in action as distinct from law in books do not pay much attention, if any, to the nature of law in books. I have stated elsewhere that Roman law is the perfect laboratory for a study of law in society. We can observe it in an early city state, in the Rome of the Twelve Tables, in a developing Republic, under imperial – becoming dictatorial – rule, in a booming economy, in financial collapse, under paganism then under Christianity, in the Roman West then in the Greek East. Not only that, we can follow its reception, in Germanic societies, in mediaeval Italy and then beyond, in the Age of Scholasticism and then of Humanism, in Europe and far beyond. Yet, much of the implication of this is ignored by legal scholars, sociologists and cultural historians

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LAW AND EMPIRE

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2 Legal Pluralism and the Roman Empires K Tuori A. INTRODUCTION Absurd as it may sound, during the last few decades the image of the Roman Empire has undergone a noticeable change. The unitary model of the Roman Empire, in which laws issued by the emperor were followed equally from Egypt to Spain after ad 212, has been crumbling. Instead of this model of a quasi-modern state, historical studies based on sources found in the provinces offer a model of a heterogeneous empire, in which local rules and customs are more prominent. This chapter seeks to offer some insights into the implication of this development, proceeding from a juxtaposition of contemporary studies through the concepts of centre and periphery, universalism and particularism. These concepts are then applied to the debate over the Constitutio Antoniniana, as is fitting to any discussion on the legal unification of the Roman Empire. Finally, I shall explore the contradictory tendencies of centralisation and disintegration apparent in the historical scholarship today. The context of this chapter is the historical image of ancient Rome, or the Rome of scholarship. It is an imaginary place where we as historians of ancient Rome wander alongside people like Gaius, Ulpian and Mommsen. In the Rome of scholarship it is sometimes difficult to discern the difference between ancient Romans and dead Germans. As Elizabeth Meyer has correctly stated, Romanists have tended to see Rome as an orderly Mommsenian commonwealth with the rule of law, a Rechtsstaat.1 This tendency has, in effect, modernised the Rome of scholarship. However, whether this is also visible in the work of contemporary Romanists, or at least the younger generation of them, is questionable. During the last four decades, the Rome of scholarship has increasingly shed its preoccupation with the idealising white marble syndrome and has begun to show more colour and variation. 1 E A Meyer, Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice (2004) 3.

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B. CENTRE/PERIPHERY? How the Roman Empire is seen depends on the viewpoint one adopts. In recent studies the options regarding this issue have tended to be reduced to a centre/periphery dichotomy. To illustrate this I would like to present some examples from the more balanced judgments found in the scholarship. Representing the viewpoint of the centre are Corcoran and Peachin with their recent studies. Simon Corcoran created an image of the imperial system of law as well-tuned machinery in his highly enjoyable book The Empire of the Tetrachs (1994). The legal administration brought knowledge of law and legal recourse to the farthest reaches of the Empire with the combination of private rescripts and imperial letters to the provincial governors and the publication of law codes and manuals. Of the private rescripts he writes: “The tetrarchic emperor remained highly approachable and the system served even those of traditional low status in the ancient world, such as women and slaves.” And of the role of governors: “Governors could now undertake the task of administration and justice in their smaller provinces with the codes clutched in one hand and a sheaf of imperial letters, both solicited and unsolicited, in the other.”2 In a similar vein, Michael Peachin describes the effects of the appointment of deputy emperors: “For no longer would the person of the emperor seem to matter so much as would the position, the institution itself. What our judges made clear is that the emperor had become no longer so important to the daily routine as an emperor.”3 In essence, he is outlining a bureaucratic system in the Weberian sense, a separation of person and position, a hierarchical administrative structure. In contrast, to represent the viewpoint of the periphery, I have selected Stolte and Woolf. In a recent article, Bernard Stolte described the scene of Emperor Caracalla accompanied by the praetorian prefects and the whole imperial entourage, adjudicating a case involving some villagers from rural Syria: “The emperor has to be accessible to his subjects, who may approach him for the purpose of arbitration and adjudication and for whom he is the ultimate authority. Jurisdiction, in other words, is to them a representation of his power.”4 The emperor here plays the part of “the good king”, and the 2 S Corcoran, The Empire of the Tetrarchs: Imperial Pronouncements and Government, AD 284– 324, 2nd edn (2000) 293, 295. 3 M Peachin, Iudex vice Caesaris: Deputy Emperors and the Administration of Justice during the Principate (1996) 203. 4 B Stolte, “Jurisdiction and representation of power, or, the emperor on circuit”, in L de Blois, P Erdkamp, O Hekster, G de Kleijn and S Mols (eds), The Representation and Perception of Roman Imperial Power: Proceedings of the Third Workshop of the International Network Impact

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act of adjudication is a display of his sovereign power instead of business as usual. In his book on provincial Gaul, Becoming Roman, Greg Woolf described how the Roman way of life was actively sponsored and readily accepted by provincials in a sort of civilising process: “The governor’s role was probably more to promote and guide the efforts of locals to civilize themselves and perhaps also to provide models for their civilizing projects.”5 The Romans exported a humanitas of learning, culture, institutions and laws; Roman laws followed after the Roman identity in a voluntary process of assimilation. These examples highlight the contradiction between the ambitions of the centre and the experience of the periphery. The machinery of administration is juxtaposed with the elusive transmissions of culture, and the bureaucratic literary communication is contrasted with the personal and oral unofficial communication. C. UNDERSTANDING THE CONSTITUTIO ANTONINIANA On the whole, the issue of legal integration is still extremely difficult, if we consider for instance the development of the debate about the Constitutio Antoniniana. John Crook, arguably the patron saint of this volume, called the topic of interaction between the local laws and the law of Rome, Reichsrecht and Volksrecht, much too difficult to treat in the book Law and Life of Rome.6 However, his rather short remarks on the matter have stood the test of time remarkably well. He stated that Rome did not destroy the legal systems of her subjects, but equally that we do not know how much effect the rules laid down by jurists have in the slums of Rome or the remote countryside of Gaul. The whole picture is much more varied and contains contradictory elements, such as peregrines adopting Roman legal forms in Transylvanian tablets and Roman provincial courts accepting peregrine rules. Crook also stressed that everything should be taken into account keeping in mind two things: first that most of our evidence is from Egypt and, second, that the effect of the Constitutio Antoniniana is very controversial.7 The view furthered in the traditional literature is that the Constitutio Antoniniana bestowed upon all free inhabitants of the Empire Roman citizenship. It meant the unification and Romanisation of the territory of the of Empire (Roman Empire, c 200 BC–AD 476), Netherlands Institute in Rome, March 20–23, 2002 (2003) 261, 262–263. 5 G Woolf, Becoming Roman: The Origins of Provincial Civilization in Gaul (1998) 71. 6 J A Crook, Law and Life of Rome (1967) 283. 7 Crook, Law and Life (n 6) 11, 29.

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Empire, resulting in an absolute monarchy where free cities were henceforth subjected to imperial legislation and commands. Rudolf Sohm, in his classic manual of Roman law from 1911, stated it succinctly: one emperor, one state, one law.8 Max Kaser, the designated traditional Romanist of this meeting, affirmed exactly the same: that in the post-classical time the legal order was unified because the division between the ius civile and ius gentium lost its significance after the Constitutio Antoniniana as all free men became Roman citizens and were consequently subject to the ius civile.9 The history of interpretations of the Constitutio Antoniniana is long and convoluted: Mitteis saw its introduction as a battle of laws, in which Roman law reduced local laws to illegal custom. In the 1930s Schönbauer proposed a dual citizenship, in which both the Roman and local laws continue their existence perfectly legally. More recently, both Modrzejewski and Gallo imagined that Roman law reduced and incorporated local law to the level of local custom, which had a secondary validity. The most recent observers such as Amelotti have observed that later emperors such as Diocletian and Constantine tried to reduce the influence of local laws.10 As is evident from the latest contributions to this debate, such as by Livia Migliardi Zingale, the clarity of those universal statements has become enmeshed in papyrological and epigraphical debates. On the Constitutio Antoniniana this started in 1910 with the publication of the Giessen papyrus 40.I and produced a plethora of literature. As Sherwin-White wrote, nobody has managed to explain the Giessen papyrus in a way that would fit the hard core of the Constitutio Antoniniana in the historical sources. The crucial question is the status of the dediticii, or former enemies who had surrendered. Scholars are more or less divided on whether or not the papyrus contains a limitation in the grant of citizenship on the part of the dediticii.11 For example, Christoph Sasse, who wrote the still relevant book on the Constitutio Antoniniana, chose deliberately to leave out any consideration of its effect on the history of the Empire.12 There have been many attempts at finding the real effect of the Constitutio Antoniniana. It has been noted that there is a tremendous increase in the 8 R Sohm, Institutionen: Geschichte und System des römischen Privatrechts 14th edn (1911) 130: “Ein Kaiser, ein Reich, ein Recht.” 9 RPR2 53. 10 M Amelotti, “Reichsrecht, Volksrecht, Provinzialrecht: Vecchi problemi e nuovi documenti” (1999) 65 SDHI 211, 213–214. 11 L Migliardi Zingale, “Diritto romano e papiri: in margine ad alcuni contributi giusromanisti” (1999) 79 Aegyptus 81; A N Sherwin-White, The Roman Citizenship (1973) 382–383. 12 C Sasse, Die Constitutio Antoniniana (1958) 17.

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occurrence of the name Aurelius after ad 212 in Dura. A similar increase is visible also in Egypt and Syria, but peregrine names do survive. Additionally there is an increase in the number of imperial constitutions in ad 212–213.13 The crucial question has been whether the Constitutio Antoniniana really meant that all free inhabitants of the Empire gained citizenship. Some say that there was a distinct difference between different classes of provincials, those of, for example, Greek cities in Egypt and those of subjugated underlings.14 Others claim that there is no reason to suspect that rural populations would have been excluded, and that the prejudice for cities is of Greek origin and thus does not reflect Roman practice, with the exception of the Egyptians, whom only the discipline of military service could make citizens.15 If everybody gained citizenship, did they also begin using Roman law? Modrzejewski claims that legal Romanisation in Egypt was very slow both before and after the Constitutio Antoniniana. The local laws were subordinated to the Roman laws, included in the system, and there are examples of local laws turned into provincial customs.16 He concludes that Roman law was not thrust upon the natives, but rather only the most obscene customs (according to Roman standards, that is) were controlled and sometimes accepted, like endogamic marriages in Egypt.17 To sum up, it is now usually accepted that the question of whether the Constitutio Antoniniana led to the immediate adoption of Roman civil law by peregrini cannot be adequately studied because of the paucity of contemporary evidence. Those relying more on the papyrological evidence tend to claim that it proves that no such wholesale adoption occurred.18 D. GERMANY, BRITAIN AND THE ROMAN EMPIRE As in many cases, this debate can be traced back to late nineteenth-century Germany. Ludwig Mitteis’ celebrated book, Reichrecht und Volksrecht (1891), was the first concerted effort to unseat the dogma of the legal unity of the Roman Empire of Diocletian and Constantine. Before Mitteis authors conventionally assumed that legal unity forbade all possibility of independent 13 Sherwin-White, Citizenship (n 11) 386–388. 14 J M Modrzejewski, “Diritto romano e diritti locali”, in A Schiavone (ed), Storia di Roma III.2 (1993) 985, 988–989. 15 Sherwin-White, Citizenship (n 11) 389 –392. 16 Modrzejewski, “Diritto romano” (n 14) 997–1002. 17 Modrzejewski, “Diritto romano” (n 14) 1004–1005. 18 Sherwin-White, Citizenship (n 11) 392; J M Carrié, “Developments in provincial and local administration”, in A Bowman, P Garnsey and A Cameron (eds), The Cambridge Ancient History: Second edition XII (2005) 269, 271–274.

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legal developments in the provinces.19 The whole conception of legal pluralism is, according to Mitteis, directly linked to the reception of Roman law in Germany. Mitteis saw parallel developments in the spread of Roman law in the provinces in antiquity and the reception of Roman law in Germany from the sixteenth century onwards: Roman law supersedes the local law. The strength of the opposition to these foreign elements or foreign spirit is dependent on the moral consciousness in the very being of the people.20 The vocabulary and models used by Mitteis are those of the Historical School of jurisprudence, and he speaks of nations and their cultures in a vaguely Hegelian sense.21 Mitteis reflects the orderly ideal model of the Wilhelmine German Empire (and partially also the French) and speaks of the Reichsidee of the Roman Empire.22 The buzz words of the day were unification and centralisation: the context of this model was the ubiquitous map of legal systems used in Germany during the nineteenth century, with innumerable tiny duchies and other fiefdoms which all had their own laws. The legal unification of the empires was in no way limited to Germany, which at the time of Mitteis was nearing the completion of the common civil code for all of the land (Bürgerliches Gesetzsbuch, 1900). In addition to the numerous codification projects in continental Europe, the colonies and provinces of the European powers were given their own codes. Britain had prepared the famous Anglo-Indian Codes starting from the 1860s, and the Dutch East Indies were given their own Civil Code in 1849. The Russian Empire began to prepare a civil code and attempted to extend Russian legislation into the previously autonomous areas. The codification movement spread also to areas outside direct European control. Take, for instance, the Meiji Civil Code of 1898 and the Chilean Código Civil (enacted in 1855) that became the model for many Latin American countries. What Mitteis describes as the ideal of legal unity in the Roman Empire can be seen as the ancient counterpart of the hopes and aspirations of the contemporary German jurists and the imperial trends of the late nineteenth century. Weaker legal cultures give way and are assimilated into a superior Roman legal framework.23 Against this model we can juxtapose something that I would like to call, 19 L Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs (1963, repr. 1891), 1. 20 Mitteis, Reichsrecht (n 19) 4. 21 F Wieacker, A History of Private Law in Europe, trans T Weir, (1995) 300–340. 22 Mitteis, Reichsrecht (n 19) 112. 23 Mitteis, Reichsrecht (n 19) 6, 8.

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only half-jokingly, a British model of empire. Seen from that perspective, the centralised and unified continental empire is in sharp contrast to the divide et impera fragmentary empire, characterised by a light administrative structure with its main aim being the control of trade and tax revenue. Such an entity, an example of which would be the British Empire, could be pejoratively called a heterogeneous grab-bag of disconnected areas instead of an integrated whole such as the Russian Empire in the late nineteenth century.24 E. CENTRALISATION, INTEGRATION, DISINTEGRATION As always, the debate runs in many parallel and often contradictory lines, of which I shall summarise only a few. The battle of the empires is not easily described or resolved, because of the irreconcilable status of the sources. We have universal statements from sources from the centre (for instance the statements of Ulpian, Dio and others about the Constitutio Antoniniana giving citizenship to all inhabitants of the Empire), and we have particular replies from the periphery (provincial sources that either corroborate or question the universal statements). Because these statements are particular, stemming for example from one city in one province, they are not easily used in discussing the validity of the universal claims. This discrepancy is obvious when looking at much of the relevant scholarship on this topic. For instance, Hartmut Wolff’s dissertation, Die Constitutio Antoniniana und Papyrus Gissensis 40 I, is torn between generalised statements and provincial sources. Wolff ends up making a distinction between dogmatic theory and administrative practice as a way of resolving this conflict.25 There has also been a marked tendency to overlook or vitiate sources from the centre that do not support the unification theory, as is evident from the discussion on Diocletian’s and Maximian’s rescript in C 4,19,21, its expression iure competenti and the possibility of the existence of private international law at the time. The supporters of the unification theory either saw it as an interpolation or simply ignored it, while the supporters of legal pluralism have seen it as evidence of the existence of several coexisting legal traditions.26 Recently scholars relying on papyrological evidence have rejected the unification theory altogether: “The extension of citizenship did not, there24 B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1991) 92. 25 H Wolff, Die Constitutio Antoniniana und Papyrus Gissensis 40 I (1976) 272–273. 26 L Winkel, “La vente entre les droits grec et romain: Quelques observations à propos de C 4,19,21”, in R Feenstra et al (eds), Collatio Iuris Romani: Études dédiées à Hans Ankum á l’occasion de son 65e anniversaire II (1995) 633; H Lewald, “Conflits des lois dans la monde grec et romain” (1959) 5 Labeo 334.

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fore, ipso facto entail generalized application of Roman private law in the provinces, nor did it debase Roman law by provincializing it.”27 The themes of centralisation and disintegration are central to the whole debate and the various arguments put forward are well known. The most prominent argument for the centralisation theory is the rise of imperial bureaucracy and the total sovereignty of the emperor. According to this view, Diocletian and Constantine undertook a major reorganisation of the whole administrative structure of the Empire after the destruction caused by several decades of civil war. Power was concentrated totally in the hands of the emperor and old Republican institutions were sidelined. The Senate, which had been used by the emperors as a legislative body, became effectively the council for the city of Rome. The quaestor of the palace drafted legislation and answers to petitions. Diocletian divided the Empire into two territories, Latin West and Greek East, with two praetorian prefects heading the civil services and responsible for justice and taxation. The praetorian prefects acted as vice-emperors (vice sacra), they had imperial status in ceremonies and a great deal of authority over budget, taxation, road administration, postal service and the procurement of food for the cities etc. Their deputies (vicarii) headed dioceses, which were larger groupings of several provinces. The old provinces were divided roughly into two and the administrative staff at all levels of government was increased. All areas were now “equal”, none, even Italy, had special status.28 Overall, this gives the appearance of an almost modern machinery of government. The centralisation theme is mirrored also in the descriptions of imperial pomp and pageantry. The centralisation of power manifested itself in the strengthening of the emperor cult through elaborate arrangements such as court ceremonies and acclamations. The auctoritas of the emperor was supremely important, because the Roman Empire was a moral universe, headed by a caring emperor. The emperor was all-powerful and officials who served him were ranked according to their proximity to his person.29 Because the emperor could change any decision at will, petitions and requests were brought to the imperial offices from the farthest reaches of the Empire. Good connections and active lobbying were needed to reach the emperor’s ear, but when the message got through, he was often willing to grant wishes to demonstrate his power.30 27 Carrié, “Developments” (n. 18) 274. 28 C Kelly, “Emperors, government and bureaucracy”, in A Bowman, P Garnsey and A Cameron (eds), The Cambridge Ancient History: Second edition XIII (1998) 162–169. 29 Kelly, “Emperors” (n 28) 145: “Pomp and power were inextricably linked.” 30 Kelly, “Emperors” (n 28) 150–156, 172–173.

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The most important piece of evidence supporting the integrationist argument is the imperial monopoly over law. If the emperor controlled both government and law, how could regional variations survive? From the time of Hadrian onwards, the emperor had acted as the supreme judge, who also created new legal rules through his constitutions. A system of iudex vice Caesaris (vice sacra), instituted in the late second century, gave select officials the right to try cases in the name of the emperor. Old jury courts and the praetor’s jurisdiction had disappeared. In the cognitio process the judge was much more active, as he could cross-examine witnesses at will, but there were still no public prosecutors. There was the right of appeal all the way to the emperor, but in the questio (investigation) torture was extended to citizens, and cruelty and corporal punishments were more common, as were public displays of punishment. From Constantine onwards, the whole system of legal privilege was being undermined.31 Were there efforts made to make Roman law the law of the land throughout the Empire? In theory such a move would have meant a substantial transformation in the organisation of the Empire, which would have represented a shift from a personality principle to an area principle. We know that Romanisation, or cultural assimilation, was common in provinces, especially in the West, well before the Constitutio Antoniniana. Grants of citizenship were made, first to local dignitaries, then to ever larger groups and the recipients of citizenship demonstrated obvious pride in that status. The example of Bithynia is enlightening: Roman citizenship strengthened the position of the great families and offered both socio-economic and ideological-political advantages. Of the imperial gentilicia found in the province, 56 per cent are Aurelii, which has been interpreted as a sign of the rise in citizenship due to the Constitutio Antoniniana.32 A very useful indicator could be the drafting and spread of law books and legal manuals such as the Syro-Roman law book, and the founding of law schools. We could imagine that their purpose was to educate the administration and the new citizens about Roman law. Another could be the existence of the so-called barbarian codes. It is unlikely that the “barbarians” would have Romanised the former Roman provinces. For the lex Romana Visigothorum to exist it may be safe to assume that the inhabitants had followed Roman law before. 31 Peachin, Iudex (n 3) 33–91. See generally P Garnsey, Social Status and Legal Privilege in the Roman Empire (1970); R Rilinger, Humiliores – Honestiores: Zu einer sozialen Dichotomie im Strafrecht der römischen Kaiserzeit (1988). 32 H-L Fernoux, Notables et élites des cités de Bithynie aux époques hellénistique et romaine: IIIe siècle av J C–IIIe siècle ap J-C: essai d’histoire sociale (2004) 201, 214, 233.

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The machinery for government was in place and citizenship was no longer such a privilege. Signs of Romanisation and Roman law are everywhere in the provinces. Can it be said, then, that what is left of local laws is just leftovers on their way to extinction? The centralisation theory has been countered by a number of other theories, such as the disintegration of the Empire and its gradual decline (or transformation, if you like). Geographically, the Roman Empire was vast and communications between the centre and the periphery were slow. During the Republic and Early Empire, the purpose of the provinces was to provide revenue and food for Rome and Italy. As long as peace was maintained, what happened in the provinces was of relatively little interest. The limits of the emperor’s power were revealed only when he tried to exercise effective control over far-flung and unwilling subjects. Both the bureaucracy and the army were too small to coerce and control the provinces, had the people there chosen to resist. As a result, auctoritas was essential if order was to be maintained throughout the Empire.33 In his book Imperial Ideology and Provincial Loyalty, Clifford Ando outlines how the Roman Empire was constructed as an ideological project, which was then internalised by the provincials. Imperial art, the emperor cult and many other manifestations were the building blocks of the unity of the Empire, as was the veritable torrent of documents that rained down from the centre to the provinces.34 If the centre’s instructions were not followed, could it really have enforced Roman law in the provinces? An emphasis on disintegration and provincial exceptions raises the question of what we can deduce from the example of Egypt. Was Egypt a regular Roman province or a special case and is the law of the papyri Roman law? As Modrzejewski states, the survival of provincial laws was factual survival.35 Provincial laws survived because they were not eradicated. Which brings us to why they were not eradicated: decline, the politically incorrect D-word! Modrzejewski’s theory is that the conflict of laws was moderated by the fact that provincial jurisdiction was degraded and replaced by arbitration. The unity of the law coincided with the decline of law.36 Were Roman administration and law so decadent and corrupt as to be unable to impose Roman law on the provincials?

33 34 35 36

J Harries, Law and Empire in Late Antiquity (1999) 56–57. C Ando, Imperial Ideology and Provincial Loyalty in the Roman Empire (2000) xii–xiii, 83, 87. Modrzejewski, “Diritto romano” (n 14) 994. Modrzejewski, “Diritto romano” (n 14) 1007–1008.

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F. DECLINE AND DECADENCE The decline and decadence theme has a rich past in legal scholarship. Romanists have pointed out that the law presented in the codifications starting from the Codex Gregorianus was the law of past Roman jurists, as legal innovation had died out centuries earlier. In jurisprudence, the post-classical period begins at the end of the third century. Kaser spoke of decline and decay; Schulz of transformation to simple forms and rules, and the advent of the bureaucratic period. In the current literature, these views have been moderated considerably and scholars now prefer to stress the continuity of the Roman law tradition.37 The most commonly ascribed elements of decline are linked to the usual companions of bureaucracy: corruption, favouritism, bureaucratism and high taxes. Corruption was apparently rife, but so were attempts to stamp it out. Favouritism existed too, but only alongside the possibility of career advances regardless of birth. Bureaucratism, administrative inertia, infighting among officials and the abuse of power to further one’s own personal interests were common features of the imperial system, but so were ambitious attempts by officials, judges and emperors to combat these weaknesses. The financial burden of running such a sprawling administrative apparatus was a very serious problem that was never adequately addressed, and the Empire was continually striving to get more out of less. To make matters worse, inflation hampered efforts at effective tax-gathering. However, the system persisted until the Persian wars that led to the loss of the most profitable provinces and their revenue. The Arab invasion provided the final blow to the old Roman imperial administrative system, which was replaced by the Byzantine theme system.38 The difference between the Early and Late Empire could be that an effort was made to govern the provinces for good and for bad. If a provincial had to pull strings to get his message through to the emperor, at least he had a theoretical chance of having his case heard. The fact that we have so many complaints and petitions from ordinary people does not necessarily mean that ordinary people were extraordinarily badly off; neither does the fact that nothing has survived of the life of ordinary people during the Early Empire mean things were well. The transformation of sources can be misleading as the volume of the sources multiplies, and lower social strata appear. To define 37 D Liebs, “Roman law”, in A Cameron, B Ward-Perkins and M Whitby (eds), The Cambridge Ancient History: Second edition XIV (2000) 238, 258–259; F Schulz, History of Roman Legal Science (1946) 262–263. 38 Kelly, “Emperors” (n 28) 175–180.

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decline requires a value judgment: was a heavy, centralised bureaucracy, headed by an all-powerful, but at times simply bad, emperor better than the light central government, which gave substantial autonomy to the provinces? And whose opinion should weigh more: should we see things from the point of view of the “administration” or the “people”, two heterogeneous groups claiming to represent the reification of the Empire? Centre or periphery? The approach proposed by Jill Harries, of seeing law in late antiquity from the viewpoints of both makers and recipients, may, after all, be the most fruitful. The viewpoints of the centre and periphery are simply two sides of the same coin and should be seen interacting. The nature of imperial rule in late antiquity as “both autocratic and populist”, both exuding sovereign power and seeking universal consent,39 cannot be understood using the Republican model of Rome. This is in my view the fundamental problem of the “decline or transformation” debate: should the gradual disappearance of the characteristics of the idealised Antonine empire that symbolised the shadow of modernity to the scholars of the nineteenth century be called a decline, or should late antiquity be judged by its own standards?40 Decline and perceptions of decline are, and were, based on value judgments. Traditionally the ideal form of state has been the Athenian democracy or Republican Rome. In contrast, the Late Empire is seen in a more negative light and its autocratic tendencies, elaborate ceremonies, immeasurable cruelty and unmanly eunuchs are emphasised. The orientalising contrast that is imbedded in this cultural image makes a contrast between the Republican citizen-soldier, who is collected from the fields to be a dictator, leads the army to victory and promptly returns to plough his fields on one hand, and the corrupt, effeminate courtier immersed in luxury and capable of devious cunning and shady plots on the other. The contrast between the Greeks and the Persians, the Europeans against the Turks, is one of austere, vigorous, and virtuous free men against corruption, inertia, luxury and the vice of a shady bureaucracy.41 Looked at from an historical perspective, the decline or transformation of the Empire as an administrative unit began in the West in the early fifth 39 Harries, Law and Empire (n 33) 212–215. 40 For discussions, cf. J H W G Liebeschuetz, “The uses and abuses of the concept of ‘decline’ in later Roman history or was Gibbon politically incorrect”, in L Lavan (ed), Recent Research in Late Antique Urbanism (2001) 233 with comments from A Cameron, B Ward-Perkins, M Whittow and L Lavan. 41 R Ambjörson, “East and West. On the construction of a European identity”, in T Forsgren (ed), Cultural Crossroads in Europe (1997) 78.

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century. In 410 Britain and Armorica threw out imperial administration, and there were separatist movements and barbarian invasions throughout the Empire. After 425 the Huns arrived and the Goths became more assertive; meanwhile Vandals took the rich African provinces. The fiscal base of the Empire was eroded by the loss of these provinces, and costs spiralled out of control because of the need to fight these conflicts. Due to these developments, the provincial-barbarian link became more workable than that of centre-province; as a result, administration was increasingly run by landowning elites, with growing regional tendencies. Still, we have sources that attest to legal integration from the other side of the old Empire. A recent article by Antti Arjava based on the Petra papyri demonstrates imperial law at work in Petra in present-day Jordan in the early sixth century.42 G. CONCLUSION The very existence of the puzzles of legal pluralism and legal integration in the Roman Empire are also signs of how the concept of a unified Roman Empire still reigns. The fundamental problem is that regional variations in time and place are so great as to render the whole exercise of saying something about the Roman empire useless. But only with a holistic view of all the material can a balance between the sources from the centre and the sources from the periphery be achieved. Stolte has outlined the effect of Roman law in a dossier of Euphrates papyri as follows: Roman law was never consciously introduced at all levels of newly acquired provinces and thus what we see in the provinces is an imitation of Roman law. The Roman elements of law in the provinces coexisted with local law, and the law of the papyri is an attempt to delineate the mixed system of Roman and indigenous rules. The understanding of Roman law and its application varied with time and place and it is difficult to see what was actually Roman law and what was an attempt at defining an agreement under indigenous law under Roman terms. Stolte sees in the penetration of Roman law to the provinces a beginning of a ius commune.43 Arjava has derived a similar interpretation from his studies in the Egyptian material and the penetration 42 A Arjava, “Law and life in the sixth-century Near East” (2003–2004) 2 Acta Byzantina Fennica 7. 43 B Stolte, “The impact of Roman law in Egypt and the Near East in the third century ad: the documentary evidence. Some considerations in the margin of the Euphrates Papyri (P Euphr)”, in L de Blois (ed), Administration, Prosopography and Appointment Policies in the Roman Empire: Proceedings of the First Workshop of the International Network Impact of Empire (Roman Empire, c 27 BC–AD 406), Leiden, June 28–July 1, 2000 (2001) 167, 176–178.

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of Roman family law in it. Egypt was not a special case but rather a part of the general legal development of the Roman Empire, in which rules made in the centre were used and recognised.44 It is too early to say whether the latest transformation is going to change permanently the way we see the Roman Empire, but there is a marked transition in the role of the provinces. The concept of acculturation, when understood as a process in which the provincials are active participants, has challenged the centralised continental model of empire. The acculturation of the stereotypical British Empire can be illuminated by a few lines from Kipling’s poem “A Legend of the Foreign Office”: Rustum Beg of Kolazai – slightly backward Native State – Lusted for a C.S.I. – so began to sanitate. Built a Gaol and Hospital – nearly built a City drain – Till his faithful subjects all thought their ruler was insane. Strange departures made he then — yea, Departments stranger still: Half a dozen Englishmen helped the Rajah with a will, ’Talked of noble aims and high, hinted at a future fine For the State of Kolazai, on a Strictly Western line.45

At the end of the poem, Beg’s attempt to impress the viceroy fails and he receives just a minor honour. Disappointed, he reverts to his old habits and the traditional way of administration. The historical image of the Roman Empire has begun to show a similar tendency to accept regional variation and the effects of sometimes coincidental forces and events. The separation of normative and factual realities, what ought to have happened and what did happen, is just the first step towards a more historically accurate vision of legal integration in the Roman Empire.

44 A Arjava “Die römische Vormundschaft und das Volljährigkeitsalter in Ägypten” (1999) 126 ZPE 202; A Arjava, “Eine Freilassung aus der väterlichen Gewalt: CPR VI 78” (1999) 14 Tyche 15. 45 R Kipling, Complete Verse (1989) 8–9.

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3 Diplomatics, Law and Romanisation in the Documents from the Judaean Desert E A Meyer* A. INTRODUCTION Romanisation, although the word is now unfashionable, is the umbrella term for complex and centuries-long phenomena of cultural exchange that created a diverse but recognisably similar Mediterranean world by ad 250. Ancient legal documents and their physical forms can shed light on this process, especially in important aspects like the degree and speed of the spread of Roman legal practices and the Greek language in the Roman East, the number of local components retained, and how (possibly even why) neighbouring peoples reacted differently to Roman examples. In (1) choice of tongue, (2) dating formulae, (3) physical construction, and (4) modes of witnessing, each legal document represents a choice its principal actors made, and thus offers possible evidence of how different people acted or adjusted differently within different judicial and legal systems. A group of Roman-period documents found in the Judaean desert but deriving from the Roman province of Arabia, compared with a less well-preserved set of documents hailing from the neighbouring province of Judaea, suggests precisely this: that the four aspects of language, dating, form and witnessing are interrelated; that principals were free to choose; and that their choices reflect and embody positive or negative reactions to Roman documentary and administrative practices. Moreover, the documents themselves may as a consequence provide a way of judging the likelihood – and here as elsewhere I follow Hannah Cotton’s lead1 – of * I extend my thanks to Hannah Cotton and J E Lendon, who read this paper for me and gave me useful advice. 1 H M Cotton “‘Diplomatics’ or external aspects of the legal documents from the Judaean desert: prolegomena”, in C Hezser (ed), Rabbinic Law in its Roman and Near Eastern Context (Texts and Studies in Ancient Judaism 97) (2003) 49, 50: “The diplomatics of ancient documents can often give us important clues about the legal system (or systems) in operation in the documents themselves.”

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what system of law the people who made the documents were most likely to be using: Jewish, Hellenistic Greek, or Roman. Legal documents and legal procedures are the legal equivalents of first contact between cultures: these are the artefacts, and areas, where legal systems and legal attitudes, if not the law itself, might clearly change in reaction to each other. The legal documents from the Judaean desert, some 158 or 161 by my count, are divided into some clear subsets (usually called “archives”).2 The most important is that associated with the fascinating, formidable, and faintly unappealing Babatha, a litigious Jewish lady of property from Mahoza, in Roman Arabia, caught up in the Bar Kokhba revolt against the Romans that began in ad 132 and lasted until ad 136.3 Yet hers were not the only documents found in the desert. Discovered have also been those of Babatha’s near neighbour, Salome Komaïse, and Babatha’s step-daughter, Shelamzion, as well as many other documents, mostly again legal, that actually originated in Judaea (not Arabia) rather than merely ending up there.4 For when the revolt began to go bad, when the balance tipped in favour of the Romans, Jews from both Arabia and Judaea fled the appalling slaughter and destruction with which the Romans punished rebellion and sought safety in the desert. Some came to the desolate Nahal Hever, a wadi that meets the western shore of the Dead Sea about three miles south of Ein-Gedi. Here, and in the wadi Murab’bat a little to the south, they hid in caves, having carried some of their belongings (as well as their legal documents) with them. One of these caves was early on found to have a stash of letters from Bar Kokhba himself to some of his lieutenants, and as a consequence was named “The Cave of the Letters”. When controlled excavations were carried out in this cave in 1960 and 1961, Yigael Yadin, the expedition leader, discovered not only many of 2 For numbers, see below (table 1); the discrepancy derives from uncertainty as to whether some are separate documents or fragments of the same document. Subsets: this leads to the asteriskdesignations in the tables for the thirty-five attributed to the “archive” of Babatha and the seven attributed to the “archive” of Salome Komaïse. 3 For ad 136 (not 135) as the date for the end of the Bar Kokhba revolt, see W Eck and G Foerster, “Ein Triumphbogen für Hadrian im Tal von Beth Shean bei Tel Shalem” (1999) 12 JRA 294, 312–313; W Eck, “The Bar Kokhba revolt: the Roman point of view” (1999) 89 JRS 76, 88. 4 Near neighbours, H M Cotton “The archive of Salome Komaïse daughter of Levi: another archive from the ‘Cave of Letters’” (1995) 105 ZPE 171, 172 and H M Cotton “The impact of the documentary papyri from the Judaean desert on the study of Jewish history from 70 to 135 CE”, in A Oppenheimer (ed), Jüdische Geschichte in hellenistisch-römischer Zeit. Wege der Forschung: Vom alten zum neuen Schürer (Schriften des Historischen Kollegs, Kolloquien 44) (1999) 221, 229; other documents derive from “the most densely populated Jewish areas” of Judaea, utterly destroyed in the Bar Kokhba revolt: H M Cotton “The Bar Kokhba revolt and the documents from the Judaean Desert: Nabataean participation in the revolt (P Yadin 52)”, in P Schäfer (ed), The Bar Kokhba War Reconsidered. New Perspectives on the Second Jewish Revolt Against Rome (Texts and Studies in Ancient Judaism 100) (2003) 133, 134.

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the legal documents (including Babatha’s) to be discussed here, but also some impressive artefacts, and the skeletons of six children, eight women (aged between fifteen and thirty years old), and three men (aged between fifteen and forty).5 Their garments were apparently of high quality, and the legal documents paint a similar picture of solid prosperity.6 It cannot be known, of course, whether any one of the skeletons was Babatha herself or her neighbour Salome Komaïse, but whatever happened, they never could come back to claim documents that were obviously important to them.7 When the legal documents in this cave were found, many bundled together in a leather purse,8 it was rapidly determined that there were some clear connections to legal documents on papyrus that had been appearing since the early 1950s, sold piecemeal by Bedouin to the Archaeological Museum in Jerusalem.9 In other words, fragments from inside the cave matched some fragments that scholars had already been studying. Only those with the designation of P Yadin were found under controlled circumstances in the “Cave of the Letters”, but some published under the designation P Hever must have come from there as well; those published as P Mur were found in the wadi Murab’bat; while for others it simply cannot be established beyond a doubt where in the Judaean desert they came from.10 Apart from the intrinsic interest that the details of these documents have for ancient historians, classicists and legal scholars, the matter of provenance is important because both Babatha and Salome, and therefore also their documents, came from the village of Mahoza, which meant that after ad 106 they were living in the Roman province of Arabia, created from what 5 Artefacts described: Y Yadin, “Expedition D-The Cave of the Letters” (1962) 12 IEJ 27–57 and Y Yadin, The Finds from the Bar Kokbha Period in the Cave of Letters (Judaean Desert Studies 1) (1963) and, for number of bodies, see 34. 6 Y Yadin, Bar-Kokhba: The Rediscovery of the Legendary Hero of the Second Jewish Revolt Against Rome (1971) 67–111; N Lewis, The Documents from the Bar Kokhba Period in the Cave of Letters. Greek Papyri (Judaean Desert Studies) (1989) 24 and at 26 he noted that the documents are those of “a materialistic, litigious coterie, incessantly disputing with one another over shares in the family’s wealth”. 7 They probably intended to go back to Arabia after the revolt, see Cotton, “Bar Kokhba Revolt” (n 4) 151. 8 For bundling and tying together as an illiterate woman’s way of organising the documents within the purse, see A E Hanson, “The widow Babatha and the poor orphan boy”, in R Katzoff and D Schaps (eds) Law in the Documents of the Judaean Desert (2005) 85, 93–95. 9 Lewis, Documents from the Bar Kokhba Period (n 6) 3. For a brief history of the papyrological finds, see Katzoff and Schaps, Law in the Documents (n 8) 2–3; for an explanation of provenance and nomenclature and a survey of the state of publication of texts from each find, see Cotton, “Impact of the documentary papyri” (n 4) 221–224. 10 In particular, the deeds from Kfar Baru (P Hever 8 and 8a) “may not have been found in Nahal Hever at all, but in a place … ca 5 km northwest of Machaerus”: Cotton, “Bar Kokhba revolt” (n 4) 150.

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had been the independent client-kingdom of Nabataea.11 In contrast, Judaea, virtually within walking distance to the west of Mahoza, had been under some form of Roman dominion since around ad 6.12 In one sense, these provincial boundaries seem to have mattered very little: Babatha’s family owned property in Judaean Ein-Gedi, for example, and there was clearly frequent movement back and forth between Ein-Gedi and Arabian Mahoza, the last transit that of the flight to the cave in the Nahal Hever.13 But in another way it does make a difference, because the documentary practices followed or practised in Arabia and Judaea were very different, the two areas demonstrating a different response to Roman administrative practices and Roman examples.14 It is an interesting oddity that two areas that were so close, and between which the boundaries could be so porous, could have what appear to be markedly different responses – with, indeed, the area subjected to Roman influence longer responding less obviously than the area more recently made a Roman province, Arabia. Demonstration of, and an explanation for, this oddity is what I seek, first, to offer here.

11 Date of the creation of the province of Arabia, see H M Cotton, “The languages of the legal and administrative documents from the Judaean desert” (1999) 125 ZPE 219, 225. 12 Mahoza is identified as likely to be in the Ghor al-Safi, south of the Dead Sea, by H M Cotton and J Greenfield, “Babatha’s property and the law of succession in the Babatha archive” (1994) 104 ZPE 211, 213, but not an easy (albeit apparently short) walk to Judaea: Cotton (personal communication). Water-travel between the two was, however, possible: H M Cotton, “Ein Gedi between the two revolts” (2001) 20 SCI 139, 154. Distances between the villages named in the papyri are calculated in H M Cotton, “A cancelled marriage contract from the Judaean desert (XHev/Se Gr 2)” (1994) 84 JRS 64, 65 note 12. H M Cotton, “Some aspects of the Roman administration of Judaea/Syria-Palaestina”, in W Eck (ed), Lokale Autonomie und römische Ordnungsmacht in den kaiserzeitlichen Provinzen von 1. bis 3. Jahrhundert (Schriften des Historischen Kollegs, Kolloquien 42) (1999) 75, 76–79, 81 also argues that Judaea, with its own prefect, was annexed to the province of Syria in ad 6: so not an “independent procuratorial province” until some time between 44 and 67, and not a praetorian province until some time after ad 70. 13 Owning property, P Yadin 11, 19 and 20, with Cotton, “Cancelled marriage contract” (n 12) 85– 86; H M Cotton, “The rabbis and the documents”, in M Goodman (ed), Jews in a Graeco-Roman World (1998) 167, 173; Cotton, “Impact of the documentary papyri” (n 4) 232; H M Cotton, “Die Papyrusdokumente aus der judäischen Wüste und ihr Beitrag zur Erforschung der jüdischen Geschichte des 1. und 2. Jh.s. n. Chr.” (1999) 115 ZDPV 228, 230–231 and 241; H M Cotton, “Marriage contracts from the Judaean desert” (2000) 6 Materia Giudaica 2, 2; Cotton, “Ein Gedi between the two revolts” (n 12) 149–150, and 152–154; Cotton, “Bar Kokhba revolt” (n 4) 149. 14 Here, cautiously contra H M Cotton, “Jewish jurisdiction under Roman rule: prolegomena”, in M Labahn and J Zangenberg (eds), Zwischen den Reichen: Neues Testament und Römische Herrschaft. Vorträge auf der ersten Konferenz der European Association for Biblical Studies (TANZ 36) (2002) 5, 13: “the patterns of the relationship between the Jews of Arabia and the Roman authorities documented in the papyri cannot be assumed to have been very different from those current in the province of Judaea/Syria Palaestina”. In Cotton, “Cancelled marriage contract” (n 12) 65 she had argued for “the essential unity of the Jewish society reflected in all of the papyri from the Judaean desert”.

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B. LANGUAGE Most people who lived in both provinces, Arabia and Judaea, spoke a type of Aramaic as their first language.15 Seventy-nine or eighty of the documents (of 158 to 161 total) are written in one form or another of Aramaic – either in the Nabataean script, or in the Jewish script, which was used to write Hebrew as well. Greek is the language of the bulk of the rest, fifty-eight or fifty-nine examples; the remainder, twenty-five or twenty-six documents, are in Hebrew. Nabataean Aramaic is found only in Arabia, Hebrew only in Judaea.16 Table 1. Languages of legal documents:17 1.1(a): unknown origin: 2 Greek (P Hever 66 [ad 99 or 109]; possibly from Philadelphia, DJD 27.240); P Hever 73 [106–107 or 109]). 1.2(a1): Arabia (before ad 106): 6 Nabataean Aramaic (**P Starcky=P Yadin 36 [58–67], *P Yadin 1 [94], *2–4 [99], P.Se’elim 2 [100]). 1.2(a2): Arabia (after ad 106): 5–6 Nabataean Aramaic (*P Yadin 6 [119 or 120], *9 [122]; and three or four more, unpublished18). 4 Jewish Aramaic (*P Yadin 7 [written by scribe trained in Nabataean tradition; 120], *8 [123], *10 [124–125]), **P Hever 12 [131]19). 15 For the use of Aramaic in Judaea, see S. Schwartz, “Language, power and identity in ancient Palestine” (1995) 148 Past and Present 3, 3, 12–19; the Nabataean dialect of Aramaic also has some Arabic elements: K Beyer, Die aramäischen Texte vom Toten Meer (1984) 41 and A Yardeni, “Notes on two unpublished Nabataean deeds from Nahal Hever-P Yadin 2 and 3”, in L H Schiffman, E Tov, and J C VanderKam (eds), The Dead Sea Scrolls Fifty Years After their Discovery. Proceedings of the Jerusalem Congress, July 20–25, 1997 (2000) 862, 862–863, 865–866, but the language spoken in Nabataea was Aramaic, not some Ur-form of Arabic: see G Bowersock, Roman Arabia (1983) 15 and F Millar, The Roman Near East, 31 BC-AD 337 (1994) 402–405. 16 For an overview of language used, see Cotton, “Languages of the legal and administrative documents” (n 11) and H Eshel, “On the Use of the Hebrew language in economic documents from the Judaean desert”, in R S Notley, M Turnage and B Becker (eds), Jesus’ Last Week. Jerusalem Studies in the Synoptic Gospels – Volume One (Jewish and Christian Perspectives Series 11) (2006) 245. 17 *=from Babatha’s archive; **=from Salome Komaïse’s archive; dates in brackets are ad. Thirtyfive documents have been assigned to the Babatha archive: N Lewis, “The complete Babatha: more questions than answers” (2003) 22 SCI 189, 189. I do not read Aramaic or Hebrew, and in what follows have relied on the translations and descriptions of the documents’ editors. 18 For reference to the unpublished ones, see A Yardeni, “The decipherment and restoration of legal texts from the Judaean desert: a reexamination of Papyrus Starcky (P Yadin 36)” (2001) 20 SCI 121, 121. 19 This document, and P Starcky=P Yadin 36, are attributed to the Salome Komaïse archive by Cotton , “Archive of Salome Komaïse” (n 4) and H Eshel, “Another document from the archive of Salome Komaïse daughter of Levi” (2002) 21 SCI 169.

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32–33 Greek (22 double, five single, two as a pair [can be counted as one or two], as fully listed in Table 3; *P Yadin 28–30 [Greek copies of Roman legal texts]; and P Hever 68 [nd]). 1.3(a1): Judaea (ad 55–135): 42 (3+39) unknown (either Jewish Aramaic or Hebrew) P Mur 38 (nd), P Hever 345 (nd), 349 (nd); [plus P Jericho 15, thirty-nine fragments in either Aramaic or Hebrew] 66 (46+20) Jewish Aramaic (P Mur 18 [55–56], P Mur 20 [51 or 65],20 P Hever 9, 21, 22 [all end of the Herodian period], P Mur 23 [66–70?], 25 [66–70?],21 19 [72],22 P Jericho 7 [84], 8 and 12 [first century AD], 2 and 3 [end first/beginning second century], P Mur 21 [first half second century], 27–28, 31–35 [all undated]; P Jericho 6 [Roman period], 13 [116?]; P.Se’elim 51 [first or second century]; P Se’elim 52 [first or second century]; P Yadin 42–43 [132]; **P Hever 32 [113–14],23 26 [134], 7 [134 or 135], 13 [134 or 135], 8 [135, outer text Hebrew], 8a [134 or 135]; P Yadin 47a-b [provenance uncertain, can be counted as one or two; 134]); P.Sdeir 2 [135], P. Se’elim 3 [second century ad?]; P Hever 9a, 10, 11, 23, 24, 24a, 25, 27, 31, 34, P Hever 50 + P Mur 26, P Hever 344, 346 [on hide, all undated], and at least twenty fragments). 25–26 Hebrew (P Mur 29 [66–70], 30 [66–70]24), P Hever 348 [on hide; Herodian]); P Jericho 9, 10, 11, 14 [all first century AD; 9 and 10 may be the same document]; P Mur 7 [?100–120, almost certainly dated too early, on hide], 22 [131],25 P Hever 49 [133, on hide], P Mur 24a-l [133], 36; P Yadin 44–46 [leases of land in Hebrew, all 134].) 21 Greek (Ein-Gedi Pap 1 [90–130],26 *P Yadin 11 [124; with Roman centurion], P Mur 115 [124], 114 [before 130],27 116 [first half second 20 Date from Cotton, “Languages of the legal and administrative documents” (n 11) 224. 21 P Mur 23 and 25 both redated to ad 66–70 by Cotton, “Languages of the legal and administrative documents” (n 11); 25 also dated to 66–70 by H Eshel, M Broshi and T A J Tull, “Four Murabba’at Papyri and the alleged capture of Jerusalem by Bar Kokhba”, in Katzoff and Schaps (eds), Law in the Documents (n 8) 45 on the basis of radiocarbon dating. 22 Date from Cotton, “Languages of the legal and administrative documents” (n 11) 224. 23 Redated by Cotton, “Languages of the legal and administrative documents” (n 11) 221–223 (where it is also attributed, with a question mark, to the archive of Salome Komaïse). 24 Redated to 66–70 by Cotton, “Languages of the legal and administrative documents” (n 11) 226 note 44, also to the same dates by Eshel et al, “Four Murabba’at Papyri” (n 21), on the basis of radiocarbon dating. 25 Dated to 66–70 by Eshel et al, “Four Murabba’at papyri” (n 21), on the basis of radiocarbon dating. 26 N Cohen, “New Greek Papyri from a cave in the vicinity of Ein Gedi” (2006) 25 SCI 87, 89–92: my thanks to the author for sending me a copy before publication. 27 Redated by H M Cotton and W Eck, “P Murabba’at 114 und die Anwesenheit römischer Truppen in den Höhlen des Wadi Murabba’at nach dem Bar Kochba Aufstand” (2002) 138 ZPE 173; discussed by Cotton, “Bar Kokhba revolt” (n 4) 137–140.

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century]; P Jericho 16 [128];28 P Hever 69 [130]); P Jericho 4 [132–136], 5a-d [fragments of four separate documents], 5e, 17, 18, 19 [fragments of nine separate documents], all “Roman”. The use of Hebrew is quite unusual, since – as Hannah Cotton has argued – it appears only in Judaea and only in years of rebellion. Hebrew’s use should therefore be understood as an ideological statement (or the consequence of an ideological decree) rather than a language choice that reflected a language that people actually spoke.29 This in turn suggests that, in Judaea at least, the language of a legal document could be thought to represent something significant. On this reasoning, documents written in Hebrew – “the language whose representation symbolized Jewish nationhood”30 – spoke to observant and/or rebellious Jews, and suggest at the very least that the language of a document might well point to its anticipated audience. Similarly, the use of Greek was not a reflection of a language usually spoken by the principals in, or witnesses to, a legal document, and these documents also, therefore, probably looked to a special audience. The Babatha archive, combined with other Arabian documents found in the desert and dating after ad 106, shows a pronounced preference for use of the Greek language: thirtyfour or thirty-five in Greek, compared to ten or eleven in one or the other form of Aramaic. Babatha herself was illiterate in any language31 and most of her witnesses (as in all the documents) wrote their signatures in Aramaic,32 so 28 Because it mentions seven witnesses, R Haensch, “Zum Verständnis von P Jericho 16gr.” (2001) 20 SCI 155 argues that P Jericho 16 is a testatio or deposition. Because, however, it is written with the fibres rather than across them, as legal double-documents in Judaea and Arabia are, this can at best be a copy of a legal document. 29 Cotton, “Languages of the legal and administrative documents” (n 11) 220–225; Cotton, “Papyrusdokumente aus der judäischen Wüste” (n 13) 232–233; Cotton, “Bar Kokhba revolt” (n 4) 136; H Rosén, “Die Sprachsituation im römischen Palästina”, in G Neumann (ed), Die Sprachen im römischen Reich der Kaiserzeit (Beiheft der Bonner Jahrbücher 40) (1980) 215, 223–226; Schwartz, “Language, power and identity” (n 15) 4 (Hebrew at this time “became a commodity, consciously manipulated by the leaders of the Jews to evoke the Jews’ distinctness from their neighbours .... [after ad 70] Hebrew maintained its evocative power”), and see esp. 18 and note 27; reinforced also by Z Safrai, “Halakhic observance in the Judaean desert documents”, in Katzoff and Schaps, Law in the Documents (n 8) 205, 222: “the use of Hebrew is characteristic of both national uprisings … the time of the revolt is portrayed as a period of national-religious revolution, with the return to Hebrew constituting part of this process”. That Bar Kokhba decreed the use of Hebrew was plausibly suggested by Yadin, Bar-Kokhba (n 6) 181. 30 Schwartz, “Language, power and identity” (n 15) 25, see also 27 (Hebrew used on the silver coins of the two revolts also). 31 H M Cotton, “Subscriptions and signatures in the papyri from the Judaean Desert: the ΧΕΙΡΟΧΡΗΣΤΗΣ” (1996) 25 JJP 29, 38; H M Cotton, “The Guardian (’ΕΠΙΤΡΟΠΟΣ) of a woman in the documents from the Judaean desert” (1997) 118 ZPE 267, 270; Cotton, “‘Diplomatics’” (n 1) 61. 32 H M Cotton in Aramaic, Hebrew and Greek Documentary Texts from Naḥal Ḥever and other

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here the choice of Greek for the documents had to be a calculated one, just as the choice of Hebrew in Judaea in time of revolt had been. The audience for these documents was, however, very different from that of the Hebrew documents: it must have been that of a Greek city, a Greek-speaking official, or the Roman courts, in which – as in other matters of governance in the Roman East – Greek was employed.33 Only Aramaic is likely not to have been a specific and deliberate choice, since this was the language most people spoke. The implication of this is that Aramaic documents looked no further than the participants’ locales, and their own local venues of arbitration or enforcement.34 sites (Discoveries in the Judaean Desert 27) (1997) 207 also makes the point that signatures of the protagonists were rarely in Greek, so the use of Greek as the language of the text of a legal document does not reflect the “Hellenisation” of Jews in Arabia or Judaea. See also H M Cotton, “The guardianship of Jesus son of Babatha: Roman and local law in the province of Arabia” (1993) 83 JRS 94, 101; Cotton, “Rabbis and the documents” (n 13) 168–169; Cotton, “Bar Kokhba revolt” (n 4) 134; and H M Cotton, “Survival, adaptation and extinction: Nabataean and Jewish Aramaic versus Greek in the legal documents from the Cave of the Letters in Nahal Hever”, in L Schumacher and O Stoll (eds), Sprache und Kultur in der kaiserzeitlichen Provinz Arabia (Mainzer Althistorische Studien 4) (2003) 1, 4, the language of the witnesses (usually Aramaic) “must be closer to the spoken language of the society ... we are not dealing here with hellenized – not even with semi-hellenized – populations”. 33 Greek was the language used by the Romans to communicate with their Eastern subjects, see Rosén, “Sprachsituation” (n 29) 220–222; F Millar, “Latin in the epigraphy of the Roman Near East”, in H Solin and O Salomies and U-M Liertz (eds), Acta Colloquii Epigraphici Latini. Helsinki 3–6 September 1991 (Commentationes Humanarum Litterararum 104) (1995) 403, 404; and W Eck, “The language of power: Latin reflected in the inscriptions of Judaea/Syria Palaestina”, in L H Schiffman (ed), Semitic Papyrology in Context. A Climate of Creativity. Papers from a New York Conference Marking the Retirement of Baruch A Levine (2003) 123, 123–125. Greek for Roman courts, a point made frequently by Cotton, “Guardianship of Jesus son of Babatha” (n 32) 101, 106–107; Cotton, “Cancelled marriage contract” (n 12) 84 (keeping their options open); Cotton, “Rabbis and the Documents” (n 13) 169; Cotton, “Languages of the legal and administrative documents” (n 11) 234–235; Cotton, “Papyrusdokumente aus der judäischen Wüste” (n 13) 235 and 237; Cotton, “Jewish jurisdiction” (n 14) 14–15; Cotton, “‘Diplomatics’” (n 1) 51; in Cotton, “Survival, adaptation and extinction” (n 32) 3 she notes “an intimate connection between provincialisation and the use of Greek in legal documents from Nabataea/Arabia”. 34 Cotton, “Jewish jurisdiction” (n 14) 20: Aramaic documents aimed at courts in villages or private arbitrations. Safrai, “Halakhic observance” (n 29) 225: “if a Jew wanted a document between him and his fellow to have legal validity, he was forced to write the document in Greek, and in a manner that would meet the requirements of the court in Petra or in Rabbah. One who wrote his document in Aramaic thereby decided that he would not need the official courts. He did so either out of naïveté and good will, or because he relied upon another, unofficial court, probably a Jewish one”. N. Lewis, “The demise of the Aramaic document in the Dead Sea region” (2001) 20 SCI 179, 180 note 3 calls Aramaic “an intra-community language” and notes that no Aramaic commercial document later than ad 135 has been found; this suggests to him (181) that the Roman government’s habit of “conducting official business in Greek ... diminished the socioeconomic visibility of the vernaculars” (as seems to have happened to Demotic in Egypt too; see M DePauw, “Autograph confirmation in demotic private contracts” [2003] 78 Chronique d’Égypte 66, 89, 103–105; B Muhs, “The grapheion and the disappearance of demotic contracts in early Roman Tebtynis and Soknopaiou Nesos”, in H Lippert and M Schentuleit (eds), Tebtynis and Soknopaiou Nesos: Leben im römerzeitlichen Fajum. Akten des internationalen Symposions

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C. DATING The implication of differing audiences suggested by the different languages used can also be deduced from the dating formulae employed in these documents. Table 2. Dating formulae: 2.1 in Nabatean documents before ad 106, regal formula: “in year twentythree of Rab’el the King, King of the Nabataeans” (P Hever 1 [94]). 2.2 in Greek and Jewish Aramaic documents in both Arabia and Judaea, and the Nabataean Aramaic documents of the Babatha archive, three forms (beyond days and months) of dating can appear: (1) imperial regnal year, “in the ninth year of imperator”, (for example, P Yadin 14 [125], P Mur 18 [55], 115 [124]). (2) consular year, “in the consulship of”, (for example, P Yadin 5 [110], P Mur 114 [124]). (3) provincial year: “by the era of the παρχεα [of Arabia]”, starts to appear P Yadin 5 [110]; “by the new era of the παρχεα [of Arabia]”, P Yadin 16 [127]=from date of first census (H M Cotton “Η ΝΕΑ ’ΕΠΑΡΧΕΙΑ ΑΡΑBIΑ: the new province of Arabia in the papyri from the Judaean Desert” (1997) 116 ZPE 204, 206–207); there is no dating by provincial era in Judaea. 2.3 in Hebrew documents, by “year in the freedom” or “redemption of Israel” P Hever 49, 7, 8, 8a, 13: starting 66–70, and again in 132; dating also by year of “Simon Bar Kochba, prince of Israel” (P Yadin 44–46). The Hebrew documents use formulae that are entirely their own, “by year in the freedom” or “the redemption of Israel”, or “of Bar Kochba, prince of Israel”, whereas Greek and Aramaic documents in Judaea, and the Aramaic documents after ad 106 in Arabia, use imperial regnal year, consular year, or, in Arabia, the Roman provincial year. These distinctive ways of dating divide the documents into categories less specific than the categories created by language: both Greek and Aramaic documents (in Judaea, and after ad 106 in Arabia) date in ways that unmistakeably reflect Roman dominion. Yet the Arabian documents also date by provincial era, whereas Judaean documents do not,35 possibly reflecting either vom 11. bis 13. Dezember 2003 in Sommerhausen bei Würzburg [2005] 93). As Cotton, “Survival, adaptation and extinction” (n 32) 3 notes, however, no legal document in any language survives from this area between those of the Babatha archive and P Ness. 1 (ad 538), so no such conclusion is very safe; and (5–8) contractual formulae in the Mishnah are given in Aramaic, implying strongly that Aramaic continued to be a legal language. 35 Cotton, “Papyrusdokumente aus der judäischen Wüste” (n 13) 234 (Judaea did not have its own provincial era).

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a significant fact about the Roman presence or a significant local reaction to that presence.36 This acceptance of “era of provincialisation” as a form of dating in Arabia suggests a sensitive or accepting awareness of the Romans in that province that may not have existed in Judaea. Sensitive accommodation and adjustment certainly seem to be especially characteristic of the Greek legal documents from Arabia. The dating formulae, shared with the Aramaic documents, are only the most obvious of these adjustments; scholars have also pointed to the Latinisms present in the Greek texts, Latinisms that comprise not only Roman things, like the denarius, the tribunal, and the basilica, but also Roman legal language and, with that language, the possibility of Roman legal concepts and activities, like the use of πτροπος in the Roman sense of tutor (not the Greek κ ριος), καλ πστει for bona fides, and, most striking, the question-and-answer formula of the Roman stipulation, translated as περωτηθες μολγησα.37 Babatha was a woman who fled to the Nahal Hever cave with no fewer than three Greek translations of the Roman formula of the actio tutelae in her leather pouch, so it is easy to believe that she was investigating the legal possibilities 36 The Roman acquisition of Arabia seems to have occurred without major conflict, and subsequently one legion was used as a garrison (and built the via nova Traiana): Bowersock, Roman Arabia (n 15) 81–89. M Goodman, “Babatha’s Story” (1991) 81 JRS 169, 170–171 deemed the presence of the Roman army in Arabia after ad 106 “pervasive” and the Roman presence dense; N Lewis, R Katzoff, and J C Greenfield, “Papyrus Yadin 18” (1987) 37 IEJ 229, 234 concluded that this “strong military presence” influenced the style of the documents. The Romans seem to have relied on some pre-existing ways of assessing taxes (B Isaac, “Tax collection in Roman Arabia: a new interpretation of the evidence from the Babatha Archive” [1994] 9 Mediterranean Historical Review 256, 262–263); may have “stepped into the Nabataean king’s possessions without altering the terms of ownership” (H M Cotton, “Land tenure in the documents from the Nabataean kingdom and the Roman province of Arabia” [1997] 119 ZPE 255, 261); raised auxiliary troops and conducted a census (Millar, Roman Near East [n 15] 96–97, with P Hever 61–62 and P Yadin 16); city-status spread rapidly (Millar, Roman Near East [n 15] 418–420); and A Negev, “The Nabataeans and the Provincia Arabia”, in H Temporini (ed), 1977 ANRW II.8: 520, 658–659 concludes that the transition to a Roman province “had a positive effect on the aging kingdom”. In contrast, the first Roman milestones in Judaea do not appear until ad 69: Eck, “The language of power (n 33) 231–237. 37 Roman money and dates; also Latin words in Greek letters and endings: acta (P Yadin 12), agitur (P Yadin 28–30), basilica (P Yadin 16), collega (P Yadin 14), librarius (or libellarius, see G Bowersock, “The Babatha Papyri, Masada, and Rome” [1991] 4 JRA 336, 339); (P Yadin 15, 20–22), miliarius (P Yadin 11), praesidium (P Yadin 11), tribunal (P Yadin 14); Roman concepts translated into Greek, bona fides=καλ πστει (P Yadin 16); actum=πρχθη (P Yadin 12, 23, 25–26); tutor=πτροπος (P Yadin 13–17, 20, 22–5, 27, 37, with Cotton, “The Guardian (’ΕΠΙΤΡΟΠΟΣ) of a Woman” [n 31]); conventus=παρουσα (P Yadin 14); recuperatores=ξενοκρται (P Yadin 28), with D. Nörr, “The Xenokritai in Babatha’s Archive (Pap. Yadin 28–30)” (1995) 29 Israel Law Review 83–94; stipulations=περωτηθες (P Yadin 5, 17, 18, 20–22, 37; restored in P Hever 63); swearing to genius=τ χη of Roman emperor (P Yadin 16). See also Cotton, “Guardianship of Jesus son of Babatha” (n 32) 104 on phrasing; Cotton, “Impact of the documentary papyri” (n 4) 234–235; and Cotton, “Jewish jurisdiction” (n 14) 14–15, listing “the most salient features of Romanization”.

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of the Roman legal system in Arabia for the likes of herself, and trying to exploit the opportunities it offered to the best of her abilities.38 The extreme correctness of dating by provincial era in Greek legal documents from Arabia is paralleled in these other technical importations and adjustments. Here too, however, the legal documents from Arabia and Judaea differ, and the different responses must reveal something of the local assessment of the likelihood of the use of secular Roman courts, and with it the protagonists’ relationship to the ruling Roman power. D. PHYSICAL FORM: DOUBLE-DOCUMENTS A further aspect of this effort to please a potential Roman audience – “enthusiasm ... for cooperation with the state”, as Goodman puts it39 – was a modification in the physical format of the documents. Romans (I have argued elsewhere) viewed and constructed their own legal documents in special ways, and in particular it was their way of doubling documents on wooden tabulae – that is, writing the text both on the sealed inside and also in a version available for reading on the outside (and insisting on clean texts) – which set them apart from the peoples they came to rule, even in the East.40 To be sure, double-documents were once an eastern (and an eastern Mediterranean) tradition.41 In Egypt, the habit of doubling some legal documents on papyrus as a protection against forgery or, indeed, merely as a way of safeguarding them, seems to have died some time before Octavian’s defeat of Cleopatra, in part because the growth of public archives and the concomitant habit of depositing documents in them for safekeeping made the elaborate activity of doubling much less necessary than it had once been.42 Further east from 38 Goodman, “Babatha’s story” (n 36) 170–171 speculates that the reorientation of format and practice in Arabia could have been “in some way connected to the advantages (or necessity) of obtaining denarii to pay taxes” or that provincials like Babatha hoped that the Roman governor would settle long-standing property disputes. The first cannot be entirely right, since Babatha paid taxes at least in part with the local population (P Hever 60 and 64, P Yadin 16; see W Weiser and H M Cotton, “‘Gebt dem Kaiser, was des Kaisers ist...’ Die Geldwährungen der Griechen, Juden, Nabatäer und Römer im syrisch-nabatäischen Raum unter besonderer Berücksichtigung des Kurses von Sela’/Melaina und Lepton nach der Annexion des Königreiches der Nabatäer durch Rom” [1996] 114 ZPE 237, 240–241), but the latter is possible. 39 Goodman, “Babatha’s story” (n 36) 170. 40 E A Meyer, Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice (2004) passim, esp. 121–206. 41 Meyer, Legitimacy and Law (n 40) 188; J M Modrzejewski, “What is Hellenistic law? The documents of the Judaean desert in the light of the papyri from Egypt”, in Katzoff and Schaps, Law in the Documents (n 8) 7, 11, noting that the Greeks themselves may have borrowed this form from Near Eastern prototypes (the Mesopotamian “envelope tablet”) much earlier. 42 Meyer, Legitimacy and Law (n 40) 188 notes 85–86; Lewis, Documents from the Bar Kokhba

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Egypt, the habit of doubling was maintained longer, as indeed was the habit of writing on skins rather than papyrus, and it would not surprise if writing documents (and double-documents) on papyrus (rather than skins), while maintaining the use of Aramaic, was picked up in Nabataea along with other Greek tastes acquired by the first century ad.43 But even here the habit of doubling documents was sliding gradually and comfortably into disuse, and the particular symptom of this is the tendency to abbreviate the interior text, which, being sealed, was rarely ever seen anyway. This is how Egyptian double-documents had decayed over time, and those from these areas further east have the same history: the two earliest Aramaic documents from Nabataea preserved have abbreviated inner texts. The earliest (P Yadin 36 = P Starcky), from ad 58–67, was also doubled in an unusual way, thought to be part of a local tradition, in that the inner or first version of the text began on the back (the verso), then continued to the top of the front (the recto).44 The next oldest (P Yadin 1), from ad 94, was physically doubled in a way more familiar from Egypt, the inner text written on the top of the sheet of papyrus, then folded over and sewn shut, the outer text written on the remaining (and unsewn) lower part of the sheet of papyrus (see Figure 1). This document also had an inner text that was much compressed.45 Later, however, there is a reversal of the trend towards compression of Period (n 6) 8. Public archives (or public officials) are referred to twice in the Arabian documents, in P Yadin 19–20: in the first Judah will register a gift δι! δημοσων when Shelamzion summons him; in P Yadin 20, the concession of a courtyard is acknowledged, and the two who concede it offer to register the concession δι! δημοσων. Yadin, Finds from the Bar Kokbha Period (n 5) 239 also claimed that P Yadin 1–4 were “written by official scribes in the royal Nabataen registry”, for which there is no direct evidence; in Y Yadin, “The Nabataean Kingdom, Provincia Arabia, Petra and Ein-Geddi in the documents from Nahal Hever” (1963) 17 Jaarbericht van het VooraziatischEgyptisch Genootschap Ex Oriente Lux 227, 235, he notes that documents in Nabataea could be stored in temples. 43 The cultural picture of pre-Roman Nabataea is extraordinarily complex, and seems best described as a “fusion” of Greek and Nabataean, and as varying by region within the Nabataean kingdom: see Millar Roman Near East (n 15) 393–408 (esp 401, coins using Greek and emphasising an attachment to Greek culture, and 406–407, the architecture of Petra as an offshoot of late-Hellenistic art possibly drawing on Alexandrian models). Goodman, “Babatha’s story” (n 36) 173 suggests that the “easy availability” of papyrus for documents in the Babatha archive was the consequence of importers’ willingness “to open up this market primarily because of the presence of the Roman administration” but papyrus had made inroads before ad 106. 44 See P Yadin vol 2 (2002) 76 fig 4 for Ada Yardeni’s drawing of this way of doubling a document. 45 Arguably belonging to this pattern also are P Yadin 2 (ad 99), in which the outer text is longer and has more details, and P Yadin 3 (ad 99), in which the inner and outer text seem close, but the inner text is damaged; in P Yadin 4 (ad 99) and P Se’elim 2 (ad 100) the inner texts are not preserved. Goodman, “Babatha’s story” (n 36) 172; R Katzoff, “Contracts”, in L H Schiffman and J C VanderKam (eds), Encyclopedia of the Dead Sea Scrolls (2000) 142, 143, and Cotton “‘Diplomatics’” (n 1) 53–54 all view the use of double-documents as merely the continuation of a local form; I am arguing for a rather fine adjustment of this view, that Roman expectations reverse a trend within this apparent continuity.

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Figure 1 Papyrus double-document: (a) unrolled state (recto); rolled state (recto); rolled state with witness-signatures (verso). Artist’s rendition based on P Yadin 15 and 16; drawing by SeungJung Kim.

the inner text, with the interior versions becoming considerably fuller again, both in the Aramaic and, especially, the Greek documents.46 In Arabia, it is likely that this change is again linked to some special sensitivity – to a perception that, for certain kinds of documents, this is what the Romans wanted. As edicts from Lycia and Egypt demonstrate, the Roman authorities could make their understanding of, and therefore their requirements for, the proper condition and format of a document perfectly clear: no interpolations, no erasures, no palimpsest-writing – no slovenly handling, in short.47 Even the vaguest perception of the existence of such standards could have prompted the Arabian scribes to write out fuller inner texts in ten of the double-documents, some with inner texts that are even fuller than the outer ones. The story in Judaea is, apparently, quite different. Leaving aside the 46 To be precise, in one Aramaic document, P Yadin 7 (ad 120); for P Yadin 10 (ad 124–125) the inner text is not preserved. The phenomenon is pronounced in the Greek documents: see Table 3. 47 Lycia (ad 43–48), see M Wörrle, “Zwei neue griechische Inschriften aus Myra zur Verwaltung Lykiens in der Kaiserzeit”, in J Borchhardt (ed), Myra: Eine lykische Metropole in antiker und byzantinischer Zeit (Istanbuler Forschungen 30) (1975) 254; Egypt, esp. P Fam Tebt, 15 (ad 90) and P Oxy 237 (ad 109); for a discussion of both, see Meyer, Legitimacy and Law (n 40) 184–187.

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three Greek double-documents, only one of which is well enough preserved to permit a comparison of the inner and outer texts,48 the Aramaic doubledocuments from Judaea between ad 50 and ad 150 seem to be wobbling their way into a merely cursory interior text: two (P Hever 9 and P Mur 19), dated at their latest in the early 70s, have full inner texts, but three more (P Mur 23 [66–70], P Jericho 7 [84], and P Mur 28 [undated]) have only short inner texts.49 A Hebrew text from the first Jewish revolt (P Mur 30) also had a compressed inner text.50 Compared to the residents of Arabia, those of Judaea seem to have been unmoved by the inclination to meet any Roman standard or pander to any Roman attitude in the matter of how a document should be constructed. Table 3. Single vs Doubled Documents 3.1(a) unknown origin: single or “simple” (like a page of our writing): 1 P Hever 66 (loan with hypothec, in Greek, possibly from Philadelphia, ad 99 or 109). 3.2(a.1) Arabia (before ad 106): doubled: type 1 (inner text starts at top of back [=verso] and continues on top of front [=recto], followed by outer text, then rolled over and sewn and knotted shut): 3 (all Nabataean Aramaic): **P. Starcky = P Yadin 36 [acknowledgment of debt, 58–67], inner “possibly a much abridged version” (Yardeni [2001] 125 [as in n 18]); *P Yadin 2 [sale of date-grove, 99], inner/outer close but outer has more details and is longer; *3 [sale of same date-grove, 99], inner text damaged, but inner/outer probably close. doubled: type 2 (inner text top of front, outer text bottom of front, then rolled inner/top rolled over and sewn shut): 48 P Yadin 11 (ad 124) is discussed below n 70; P Mur 115 (ad 124) and P Hever 69 (ad 130) each have one text that is fragmentary. 49 Nineteen are too poorly preserved to compare inner and outer texts, see Table 3. 50 A later papyrus, P Mur 22 (ad 134), has (it appears) a full inner text; and P Mur 29 (ad 66–70) and P Jericho 9–10 (first century ad) are too fragmentary to permit the comparison. P Mur 22 may not be a document with full inner and outer texts, since its fragments may not belong together: the fragment of the inner text does not join with the other fragments, and the papyrus has been reconstructed on the basis of similarity of contents alone. But inner and outer texts are written in strikingly different hands; the usual practice (see P Benoît, J T Milik, and R de Vaux, Les Grottes de Murabba’at (Discoveries in the Judaean Desert 2) (1961) 244 and Lewis, Documents from the Bar Kokhba Period [n 6] 9) is for both inner and outer texts to be written in the same hand, even though the inner text is written cursively in a cramped space and the outer text more “formally” or “elegantly”.

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2 (both Nabataean Aramaic): *P Yadin 1 [debenture, 94], inner text “much compressed”; *4 [agreement, 99], inner text not preserved. unknown: 1 (Nabataean Aramaic): **P.Se’elim 2 [deed of sale, 100], inner text missing.51 3.2 (a.2) Arabia (after ad 106): single or “simple”: 11 (*P Yadin 5 [acknowledgment of deposit in Greek, 110], *6 [tenancy agreement in Nabataean Aramaic, 119], *9 [waiver in Nabataean Aramaic, 122], *8 [purchase contract for two animals in Jewish Aramaic, 123], *13 [personal copy of petition to the governor in Greek, 124], **P Hever 60 [receipt for tax on dates in Greek, 125], P Yadin 42 [lease agreement in Jewish Aramaic, 132], **P Hever 63 [deed of renunciation of claims in Greek, 127?], **P Hever 12 [receipt for dates in Jewish Aramaic, 131: “unparalleled in other Hebrew and Aramaic texts”, Yardeni in DJD 27.210], *P Yadin 27 (receipt for orphan’s maintenance in Greek, 132), 43 (receipt for partial payment of lease in Jewish Aramaic, 132]). paired (two single sheets written in “simple” format, but one from perspective of buyer, one from seller): 1 *P Yadin 21–22 [sale, Greek, 130]. doubled: highly unusual type (two texts on one sheet of papyrus, one written upside down, one from perspective of seller, one from perspective of buyer; each was doubled but the inner texts do not survive): 1–2 P Yadin 47a-b [buying and selling, Jewish Aramaic, 134]; nb “Hellenistic practice is single text”, P Yadin 1.94). doubled: type 1: 1 *P Yadin 7 [deed of gift in Jewish Aramaic, ad 120] “following Nabataean procedure”; inner/outer very close. doubled: type 2: 22 *P Yadin 10 [Babatha’s ketubba in Jewish Aramaic, 124–125], inner text not preserved; *P Yadin 12 [extract from council-minutes of Petra, 124–125], inner text one sentence; *14 [summons by Babatha to guardians of son, 125], inner text fuller than outer;52 *15 [deposition 125], 51 Description, A Yardeni, Textbook of Aramaic, Hebrew and Nabataean Documentary Texts from the Judaean Desert and Related Material B. Translation–Palaeography–Concordance (2000) 95. 52 H M Cotton and W Eck, “Roman officials in Judaea and Arabia and civil jurisdiction”, in Katzoff and Schaps, Law in the Documents (n 8) 23, 42–43 note that one “discrepancy” between the inner and outer text may have been created by Lewis’s construction (Documents from the Bar Kokhba Period [n 6] 56) of a composite translation and his translation of both γεμν and παρχος as “governor”. Cotton and Eck suggest that one document has a reference to both a governor and a praefect, both of whom happen to be named Julianus, and that this is not a scribal error, as

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inner/outer close; *16 [land-declaration in census, 127], inner text one sentence; **P Hever 61 [land-declaration in census, 127], fragmentary; **62 [land-declaration in census, 127], inner text one sentence; *P Yadin 17 [acknowledgment of deposit written in objective style, 128], inner/ outer close; *18 [marriage contract written as objective statement of fact, 128], noteworthy variation inner/outer (not compression); *19 [deed of gift written as objective statement of fact, 128], inner damaged, but disagreement inner/outer?; **P Hever 64 [deed of gift, 129], literal translation from Aramaic, first-person inner fuller than third-person outer but also some variations; *P Yadin 20 [concession of rights, 130], inner text fuller than outer; *23 [summons to Babatha, 130], only closing formula reduced in inner text; *24 [deposition, 130], fragmentary; *25 [summons and counter-summons, 131], inner text fuller than outer; *26 [summons and counter-summons, 131], inner text badly abraded; 31 [contract? after 125], entire document poorly preserved; *33 [copy of posted petition, 125], inner text one sentence; *34 [?copy of petition, 131], unfinished (inner text never written); **37=**P Hever 65 [marriage contract possibly written in objective style, 131, inner text only]; *P Yadin 35 [summons, 132], fragmentary; 32 [contract? no date], almost entirely abraded; 32a [contract? no date], almost entirely abraded. 3.3(a.1) Judaea: single or “simple”: 1 (unknown: either Jewish Aramaic or Hebrew): P Mur 38 (nd). 10 (Jewish Aramaic): P Jericho 2 [deed of lease], 3 [deed of sale; both end first or beginn. second century]; P Yadin 42 [lease agreement, 132], 43 [receipt, 132]; P Hever 8a [deed of sale, 134 or 135], 10 [receipt], 13 [waiver of claims, 53 134 or 135], 26 [deposit?]; P Mur 27 [deed of sale]; P Sdeir 2 [acknowledgment of debt, 135]. 17 (Hebrew): P Mur 7 [legal fragments on leather, 100–120], 24 [12 lease agreements, 133]; P Hever 49 [promissory note, 133]); P Yadin 44–46 [leases of land from Ein-Gedi, all 134]. 5 (Greek): Ein-Gedi Pap. 1 [land transaction or loan?, 90–130];54 P Mur 114 [acknowledgment of debt, 124]; P Hever 67 [document re falling timber, 127 or 128]; P Jericho 4 [deed of sale or lease, 132–136], 5e [transactions concerning seeds, “Roman”]. R Haensch, Capita provinciarum. Statthaltersitze und Provinzialverwaltung in der römischen Kaiserzeit (1997) 559 no 42 believes. 53 An identification affirmed by H M Cotton and E Qimron, “XHev/Se ar 13 of 134 or 135 CE: A wife’s renunciation of claims” (1998) 49 Journal of Jewish Studies 108, after some controversy. 54 Cohen, “New Greek papyri” (n 26) 89–92.

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doubled: type 2 24 (Jewish Aramaic): P Mur 18 [acknowledgment of debt, 55–56], inner not preserved; P Mur 20 [marriage contract, 51 or 65], outer not preserved; P Hever 9 [deed of sale, end Herodian], inner/outer close (outer fragmentary at end), P Hever 21 [deed of sale, end Herodian], fragmentary; P Hever 22 [deed of sale, end Herodian], fragmentary; P Mur 23 [sale, 66–70], inner only a resumé; P Mur 25 [sale, 66–70], fragmentary; P Hever 348 [Aramaic deed, Herodian], fragmentary; P Mur 19 [divorce, 72], inner/outer close; P Jericho 7 [sale of date crop, 84], inner much compressed; P Jericho 8 [deed, first century AD], fragmentary; P Mur 21 [marriage contract, first half second century], inner not preserved; P Mur 28 [sale, undated], inner only a resumé; P Mur 31 [sale, undated], inner text not preserved; P Hever 7 [deed of sale, 134 or 135, on hide], fragmentary; 8 [deed of sale, 135], inner text Jewish Aramaic, outer Hebrew and not well preserved; 9a [unknown, fragmentary, and undated]; 11 [marriage contract, 70–end Bar Kokhba revolt], very fragmentary; 23 [deed of sale, 70–end Bar Kokhba revolt], fragmentary; 24 [deed], fragmentary; 24a [deed], fragmentary; 25 [deed], fragmentary; P Hever 50 + P Mur 26 [deed of sale], fragmentary; P Hever 345 [?deed; no date], fragmentary. 4–5 (Hebrew): P Mur 29 [sale, 66–70], fragmentary;55 30 [sale, 66–70], inner compressed;56 P Jericho 9 and 10 [deed, first century ad; may be same document], fragmentary; P Mur 22 [deed of sale, 134], inner/outer close. 3 (Greek): *P Yadin 11 [acknowledgment of debt, 124] inner/outer close; P Mur 115 [marriage contract written in objective style, 124], outer fragmentary but ed. thinks two close; P Hever 69 [marriage contract, ad 130], very little left of inner. Two types of Greek double-document from Arabia help to make the case for Roman influence there a little more dramatically. These two types of document do not exist in, or at least survive from, Judaea, which may or may not be a significant fact. One type is procedural, the raft of double-documents associated with hearings before the Roman governor. Babatha spent several years manoeuvring to get better child support for her son from her first marriage, or at least to be allowed to invest his money on the argument that she would be able to get a better return, and thus provide better maintenance for him.

55 Actually sealed as well as knotted, Katzoff, “Contracts” (n 45) 142. 56 Katzoff, “Contracts” (n 45) 142.

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(Her first husband had died, and part of his estate had been put into trust.)57 In pursuit of this, there are summons, counter-summons, and depositions (the μαρτυροπομα), all in double-document form with full inner texts.58 In a context where Babatha knew she had to put her best foot forward and please the Roman authorities, she is very careful indeed to conform to their standards and mind her manners.59 The other type of “official” legal document that suggests Roman influence is best described as an attested copy of legal obligations or legal acts that have been fulfilled or performed, and officially memorialised elsewhere, but for which it is useful, indeed possibly required, that the individual involved have his (or her) own copy. In this category belong attested copies of an extract from the council minutes of the city of Petra (P Yadin 12, ad 124– 125), as well as copies of land declarations that landholders have made when the census of the province was taken (P Yadin 16 and P Hever 62, both ad 127) and a copy of a posted petition (P Yadin 33, ad 125). These doubledocuments are different from the others because their inner texts are rarely more than a line long, and basically refer the reader to where the full original text is posted – although a copy of the full text is also given as the outer text of the document. To have this kind of cross-referencing interior text must have been an official choice: Romans (and the council of the city of Petra) were the issuing authorities; it was their decision in these cases to issue documents that looked like this; and this worked well because, after all, they did have the originals in their own possession. For most purposes that anyone could imagine the double-document copy would do; if there really were a dispute the Romans (or the city council) could resolve it themselves by looking at their own records. What the copies of the declarations made for the census particularly attested was that a proper procedure – of declaring property – had been performed, and the authorities were willing to say so. In the Arabian documents, the shift to an approximation of the “Roman way” seems pretty sudden and pretty complete. Not only is the use of Greek after ad 106 massive, but twenty-two (of twenty-seven total) Greek documents are doubled, while only one, a deed of gift (P Yadin 7 of ad 120), of the six published Aramaic documents after 106 is. Double-documents were 57 Lewis, Documents from the Bar Kokhba Period (n 6) 24. 58 P Yadin 14–15 (both ad 125), 23–24 (both ad 130), 25–26 (both ad 131). 59 See T Chiusi, “Babatha vs the guardians of her son: a struggle for guardianship-legal and practical aspects of P Yadin 12–15, 27”, in Katzoff and Schaps, Law in the Documents (n 8) 105, 131: Babatha “might have regarded Roman legal instruments as the more appropriate means for reaching her goal … the chance to prevail in the proceedings before the Roman governor was presumably greater if one observed the Roman forms”.

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naturally more time-consuming to make: the effort expended encourages the conclusion that documents of a more important type tend to turn up as double-documents, not just the procedural documents that clearly involved the Roman authorities, but also other documents like marriage contracts and most deeds of sale and gift. In the choice of which types of document to double, both provinces are very similar, as Table 4 shows.

Table 4. Single and Doubled Documents. 4.1(a): single or “simple” documents: Arabia [1 loan (Greek): may be unknown origin] 1 acknowledgment of deposit (Greek)

Judaea

1 acknowledgment of deposit (Jewish Aramaic) 2 acknowledgments of debt (Greek, Jewish Aramaic)

1 copy of petition (Greek) 1 renunciation of claims (Greek) 1 waiver (Nabataean Aramaic) 1 waiver (Jewish Aramaic) 1 purchase contract (Jewish Aramaic) 2 tenancy or lease agreements (Nabataean and Jewish Aramaic) 4 receipts (Greek, Jewish Aramaic)

18 lease agreements (Hebrew and Jewish Aramaic) 2 receipts (Jewish Aramaic) 1 promissory note (Hebrew) 2 misc. documents about timber and seeds (Greek) 4 deeds of sale (Jewish Aramaic)

4.1(b): doubled documents Arabia

Judaea

12 administrative or procedural documents (summonses, copies, depositions) (Greek) 3 marriage contracts (Jewish Aramaic, Greek)

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5 marriage contracts (Jewish Aramaic and Greek)

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?3 other contracts (Greek) 4 deeds of sale and gift (Jewish and Nabataean Aramaic, Greek) 2 acknowledgments of debt, deposit (Nabataean Aramaic, Greek) 1 concession of rights (Greek)

21 deeds (usu. of sale; Jewish Aramaic and Hebrew) 2 acknowledgments of debt (Jewish Aramaic, Greek) 1 divorce (Jewish Aramaic) 3 unknown

The only notable difference between the two provinces in the matter of doubling documents arises from the choice, in Arabia, to compose or present these more important documents as Greek rather than Aramaic doubledocuments, and to employ fuller interior texts. Care and completeness characterise the construction of these significant legal documents aimed at a Roman audience, an audience assumed for a higher proportion of significant documents in Arabia than in Judaea. The rate of change may not, however, be quite as sudden as it seems. A hint of an intermediate moment, an approximate adjustment, can perhaps be seen in P Yadin 5 of the year ad 110, only four years after the official creation of the province. This peculiar “simple” (undoubled) document, written in awkward Greek, may be a witnessed translation of an Aramaic document, made to make the document acceptable to a new or different court.60 Compare this to P Hever 64, a deed of gift from the year 129. The “ungrammatical and non-idiomatic” Greek of this document is (also) a consequence of its virtually 60 This document of deposit is written with the fibres of the papyrus (rather than against them, as it would have been had this been a part of a double-document) and in two columns. The bottom part of the second column has a list of seven witnesses, and there seem to be traces of witness signatures on the back as well. Lewis suggested restoration of a fragmentary word in the first line – ρμηνεα, or “translation” – for this document seems to read as a translation of an Aramaic document: three Greek phrases in it are literal renderings of Semiticisms, as he points out: Lewis, Documents from the Bar Kokhba Period (n 6) 15. Translation into Greek would already be a change in response to a perceived standard, as well as an adjustment taken to improve the earlier version. Recruiting seven witnesses – who are listed on the recto in the same hand that wrote the rest of the document, but who may have signed on the back, if the traces of signatures there, in both Aramaic and Greek, indeed belong to them – was unusual in and of itself (and probably Roman practice, see below n 72), but may have been even more unusual if they were witnessing a legal document recently translated or the act of translating a legal document. The oddities of P Yadin 5 may arise precisely because it embodies an act of transformation and retooling, an attempt to reorient from an Aramaic context to a context that preferred or demanded Greek, and is a little uncertain about what the finished product was supposed to look like. The translating scribe has some knowledge of Roman ways – Greek, seven witnesses – and indeed the principal does too, since he makes reference in fragment b line 2 to loans made “without διπλ"ματα: διπλ"ματα is the word for Greek double-documents of the Roman period, all of them deriving from, or intended for, a Roman context (Meyer, Legitimacy and Law [n 40] 187–205). The final product, however, has not yet come together into a coherent whole.

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direct translation from the Aramaic.61 Despite this, it is diplomatically a much more conventional double-document, with an inner text fuller than the outer one. Twenty years after the creation of the province, conformity to a perceived diplomatic standard is easier to achieve and there is less to be confused about. The ability to write Greek may vary considerably from scribe to scribe, but a double-document with full inner and outer texts can be put together with, apparently, a minimum of difficulty. One man was even sufficiently adept in both languages and styles by the 120s that he could write a marriage contract in Jewish Aramaic for his own wife, Babatha, in 124–125, but be party to his daughter’s marriage contract in Greek in 128.62 E. WITNESSING The Romans preferred documents in Greek that used dating formulae reflecting the Roman presence very accurately, as well as documents that were, when important, doubled with full interior texts, except in the specific cases in which attested copies were issued. And the Arabians were admirably perceptive students, as the briskly paced and thorough shift of diplomatic practice – interrelated, bundled changes – in Roman Arabia after ad 106 suggests. The documents from Judaea are more difficult to work with, for here the Greek documents are few, many documents are fragmentary, and their physical states are considerably harder to restore, even to speculate about. There is, however, one last aspect of the documents in both Judaea and Arabia that might allow for some cross-province comparisons of a possible reaction to Roman standards in documents: this is how many witnesses they have. To be sure, nowhere in either Arabia or Judaea is the physical style of witnessing that Romans practised amongst themselves seen. Amongst themselves, in the West and in Egypt, the Romans wrote their legal documents on wood and, closing them up with a linum or string after ad 61, placed their seals over the string and wrote their names next to their seals.63 If Roman citizens in Arabia and Judaea used wood in this way, examples have not survived. But Romans loved their seals and their sealing rings, as Pliny the Elder himself said; as he 61 See Cotton, Aramaic, Hebrew and Greek Documentary Texts (DJD 27) (n 32) 207; Cotton, “Bar Kokhba Revolt” (n 4) 9–10. 62 Yehuda, son of Eleazar Khthousion wrote Babatha’s ketubbah, and employed Theënas son of Simon, to write P Yadin 18 (ad 128); the latter also wrote (in good, idiomatic Greek) P Yadin 14, 15, and 17. Germanos, son of Judah, who like Theënas styled himself a λιβλριος and wrote Greek that was rather worse, ceased using the title of λιβλριος by November 130, Lewis, Documents from the Bar Kokhba Period (n 6) 88. 63 Meyer, Legitimacy and Law (n 40) 154–158.

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also noted, the East did not seal, preferring instead to sign.64 That is certainly what easterners do here, either themselves or through intermediaries who write for them if they are illiterate.65 In the East, principals in, and witnesses to, a “simple” (undoubled) document wrote their names at the bottom of the document. In a doubledocument, when the writing of the document was completed, the top part of the recto side, with the inner text, was rolled up, flattened and then sewn shut, the sewing itself knotted multiple times (next to which knots the witnesses signed) on the verso.66 Within these general patterns, however, Arabians and Judaeans made different choices when it came to how many witnesses they used.67 Table 5. Numbers of Witnesses. 5.1 Arabia single or “simple”, no witnesses: 3 **P Hever 60 [receipt in Greek, 125]; **63 [renunciation of claims in Greek, 127]; **12 [receipt in Jewish Aramaic, 131]. single or “simple”, three witnesses: 2 *P Yadin 8 [purchase contract in Jewish Aramaic, 123]; *9 [waiver in Nabataean Aramaic, 122]. single or “simple”, seven witnesses: 1 *P Yadin 5 [written with the fibres; possibly a translation of a document of deposit into Greek; the seven witnesses are listed at the bottom of the recto, and then there are traces of witnesses on the verso as well; 110]. doubled, four witnesses: 64 Pliny, Historia naturalis 33.9–33.12, 17–21: East signs, 33.21. 65 See Cotton, “Subscriptions and signatures” (n 31); Cotton, Aramaic, Hebrew and Greek Documentary Texts (DJD 27) (n 32) 179–180 on the χειροχρ$στης. 66 As Yadin, “Expedition D” (n 5) 237 notes, “the tightness of the knots and the closeness of the signatures to them made it virtually impossible for the interior even to be opened without the signatures being damaged”. 67 This analysis of the number of witnesses to documents reports on what is currently known from publication, but is subject to revision: Cotton, “Diplomatics” (n 1) 51 and L H Schiffman, “Reflections on the deeds of sale from the Judaean desert in light of rabbinic literature”, in Katzoff and Schaps, Law in the Documents (n 8) 185, 201 both note the need for a full-scale study of the number of signatures, but such a study requires a full re-examination of the documents themselves. L H Schiffman, “Witnesses and signatures in the Hebrew and Aramaic documents from the Bar Kokhba caves”, in Schiffman, Semitic Papyrology in Context (n 33) 164, 185 also argued that allowing others to sign for you was “a Greco-Roman practice” and indeed that (Schiffman, “Reflections on the deeds of sale”, 202) for contracts, the “entire procedure by which the witnesses’ signatures are accompanied by those of the parties to the contract results from Greco-Roman legal practice … the Jewish requirement of witnesses with specific qualifications has been grafted onto non-Jewish legal procedures”, but the distinction in number of witnesses suggests an even more complex process than this.

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5 *P Yadin 1 [debenture in Nabataean Aramaic, four witnesses plus scribe; 94]; *2–3 [sale contracts in Nabataean Aramaic, four witnesses plus scribe; 99]; *4 [agreement in Nabataean Aramaic, 99]; *17 [acknowledgment of deposit in Greek with possibly more than four witnesses – Lewis thought seven – but, more likely, the name of protagonist and scribe in the three missing lines, 128]. doubled, five witnesses: 8 *P Yadin 10 [marriage contract in Jewish Aramaic, 124–125; Schiffman [2003] 174 (as in n. 67) argues for three witnesses and two helpers]; *12 [extracts in Greek from acta, 124], *14 [summons in Greek, 125], *16 [copy of land declaration in census in Greek, 127], **P Hever 62 [copy of land declaration in census in Greek, 127], *P Yadin 18 [marriage contract in Greek, 128]; *P Yadin 23 [summons in Greek, 130], *26 [summons in Greek, 131]. doubled, six witnesses:68 1 (Jewish Aramaic): *P Yadin 7 [deed of gift, 120; the last witness may be the scribe, Schiffman [2003] 173 (as in n. 67)]. doubled, seven witnesses: 4 (Greek): *P Yadin 15 [deposition, 125]; *19 [deed of gift, 128], **P Hever 64 [deed of gift in Greek, see Cotton [2003] 56–58; 129 (as in n. 1)]; *P Yadin 20 [concession of rights, 130]. 5.2 Judaea: single or “simple”, no witnesses: 2 (Jewish Aramaic): P Yadin 42 [lease agreement signed by two administrators; 132], 43 [receipt signed by two administrators; 132]. single or “simple”, two witnesses: 2 (Jewish Aramaic): P Hever 13 [waiver of claims, 134 or 135], P.Sdeir 2 [acknowledgment of debt, 135]. single or “simple”, three witnesses: 5 P Hever 49 [acknowledgment of debt, 133, Hebrew], 8a [deed of sale, 134 or 135, Aramaic]; P Yadin 44–46 [leases of land in Hebrew, all 134]. single or “simple”, five witnesses: 1 P Mur 38 [restored; nd]. doubled, three witnesses: 5 P Mur 18 [acknowledgment of debt, 55–56, Aramaic; possibly only two witnesses, Schiffman [2003] 168 (as in n 67)], 29 [deed of sale, 66–70, 68 This “number [is] ... unattested in the papyri from the Judaean desert”, Cotton, “Diplomatics” (n 1) 57; Schiffman “Witnesses and signatures” (n 67) 167.

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Hebrew], 30 [deed of sale, 66–70, Hebrew], 19 [divorce, 111, Aramaic], 21 [marriage contract, first half second century, Aramaic; Schiffman [2003] 168–169 (as in n 67) suggests four]. doubled, five witnesses: 4 (Jewish Aramaic) P Hever 9 [deed of sale, late Herodian], ?21 [deed of sale, end Herodian-post H.], 22 [deed of sale, end Herodian-end Bar Kokhba; subscription and five witnesses?], P Hever 50 + P Mur 26 [deed of sale, Aramaic; undated; Schiffman [2003] 172–173 (as in n 67) argues for only two witnesses and several helpers]; 69 [marriage contract in Greek, 130]. doubled, seven witnesses: 1 P Yadin 11 [loan with mortgaged security, in Greek, 124], one party a Roman soldier. The single documents have the fewest witnesses. Some use or require no witnesses at all, while others – purchase contract, waivers, acknowledgments of debt, leases, one deed of sale – use no more than three. At the other end of the spectrum are the double-documents with seven witnesses, of which there are five. This is a greater number of witnesses than any eastern, or indeed Greek tradition used: but seven witnesses were used for some of the most solemn of Roman documents, like wills.69 The four seven-witness documents from Arabia are a deposition (P Yadin 15); a concession of rights by Besas, son of Jesus, and the Roman lady Julia Crispina, guardians of the sons of Yehudah son of Elazar Khthousion, to Yehudah’s older daughter (P Yadin 20); and two deeds of gift (P Hever 64 and P Yadin 19). In P Yadin 19, half of this gift is to pass only after the death of the giver. The one double-document with seven witnesses from outside Arabia was drawn up in Ein-Gedi (P Yadin 11), and in it the same Yehudah, some years earlier, borrows money from a Roman centurion named Magonius Valens. In P Yadin 15, 20 and 11, Romans are again involved; in the last the first witness even has a Roman name, Gaius Julius Procles, and Yehudah’s acknowledgment is here specified as a translation into Greek.70 So again, where Romans are either involved or anticipated, or for a certain type of document – a gift of property or a gift that was partly to take place after the giver’s death, thus akin to a will in its need for protection and enforcement71 – then we see, and might expect to see, seven witnesses. 69 Wills, Gai Inst 2.147 and 2.119. 70 Perhaps this fact of translation can explain why, although a witnessed double-document, this document remained with the (family of the) debtor, not the creditor, and was not cancelled once the loan was repaid. 71 One other deed of gift from the Judaean desert has five or six witnesses, but not seven: P Yadin 7 (Jewish Aramaic, 120).

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It does not happen very often in what survives, but when it does it is very marked. In the middle of the spectrum of witness numbers are documents with five. On the one hand, there is one simple or single document from Judaea with five witnesses – but only the signatures survive, so there is no way of determining what sort of document it was. In the realm of the double-document, the options are considerably more interesting: there are three deeds of sale from Judaea, all mid-first century, and one marriage contract; two marriage contracts also survive from Arabia. And then there is one other set of documents, completely different. From Arabia there are three summonses to the court of the governor, two attested copies of land registration in the census, and one attested copy taken from the acta of the council of the city of Petra, all with five witnesses. These are, again, from the world of the official Roman document: the authorities approve or issue them. And again, there are none of them in, or none survive from, Judaea. So we have the Roman authorities associated with Roman protagonists, Roman courts, Roman practices, terms and dating formulae, the Greek language, and two levels of witness numbers in double-documents, seven and five. In Roman documents from elsewhere, seven witnesses are especially associated with depositions, with attested copies like military diplomata, and with the witnessing of legal acts “constructed” in the Augustan period and after, while the number five may be the standard “Republican” number of witnesses and five men also attest a copy of a senatus consultum in ad 138; so both numbers can have a Roman provenance and clear Roman parallels.72 It seems reasonable to conclude, 72 Attested copies: esp. military diplomas (number of signatores always seven); or (e.g.) a rescript of Antoninus, IKSmyrna 597=FIRA2 1.435–436 no 82, ad 139); a rescript of Caracalla, S Ṣahin and D H French, “Ein Dokument aus Takina” (1987) 10 Epigraphica Anatolica 133, 137; a copy of a statement dissolving a funerary collegium, CIL 3 p 921 (ad 167, seven signatores); and other examples, Haensch, “Zum Verständnis von P Jericho 16gr” (n 28) 162–164 and Meyer, Legitimacy and Law (n 40) 136–137. For five, see the acts per aes et libram discussed by C G Bruns “Die sieben Zeugen des römischen Rechts” in Kleine Schriften II (1882), 119, 121, 123 and 131 (first published in Commentationes Philologae in honorem Mommseni scripserunt amici [1877] 489); for the attested copy of the senatus consultum, with two scribae and five others, all called signatores, see FIRA2 1.291–1.293 no 47, ad 138; and, for “constructed” acts under Augustus, see Bruns, “sieben Zeugen” (n 72) 127–138. Five witnesses are also found in one double-document (from Kurdistan) written in Pahlavi from ad 53 (H S Nyberg, “The Pahlavi documents from Avroman” [1923] 17 Le Monde oriental 182; for date, see refs in Cotton, Aramaic, Hebrew and Greek Documentary Texts (DJD 27) (n 32) 143 note 52), and six other double-documents from Dura-Europos and Syria in the third century ad (P Dura 26 [ad 227], 30 [232], and 32 [254]; P Euphr. 6–7 [249; two copies of same document], 10 [250] and 19A [240; in Syriac]; for these, see D Feissel, J Gascou, and J Teixidor, “Documents d’archives romains inédits du moyen Euphrat (IIIe s après J-C)” [1997] Journal des Savants 3). The Pahlavi document and those from Judaea suggest that there is already a five-witness tradition in existence in the Near East before the Romans, over which the five-witness Roman double-documents were layered.

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from looking at these Arabian documents, that the Roman authorities in this province could make up whatever specifications they liked, including using five rather than seven witnesses for attested copies, but tended to keep their requirements both traditional and consistent, thus creating paradigms that their provincial subjects could learn. Finally, to go back to the world of the lower number of witnesses in the doubled documents of Arabia and Judaea. So far, it would appear that a doubled document with four witnesses, an odd number indeed, is a practice confined to Arabia, and mostly to Nabataean Arabia at that.73 On the other hand, this does not seem nearly as odd as having no doubled documents with three witnesses from Arabia at all, which is the case. From Judaea, on the other hand, there are deeds of sale in Hebrew, a marriage contract, an acknowledgment of debt, and a divorce, all with three witnesses. And here one final factor may be helping to determine the number of witnesses, and may explain something about the customs governing the documents. In the documents of both Judaean and Arabian provenance, all – or virtually all – of the protagonists are Jews.74 The Jewish rabbis – writing, to be sure, some time after all these documents were written – had opinions about, in particular, how many witnesses a document should have. They also distinguished between simple and “folded” documents. Thus, as one says, “A simple document, its witnesses are two, and a folded one, its witnesses are three. A simple one in which a single witness’s signature is written and a folded one in which two witnesses’ signatures are written, both of them are invalid.”75 Or another: “a simple document has witnesses’ signatures within. And one which is folded has the signatures behind. A simple document on which its witnesses signed on the back, or a folded document on which its witnesses signed on the inside, both of them are invalid.”76 There was also debate among the rabbis about gentile witnesses and the propriety of using gentile courts.77 A pattern starts to emerge here: all the single or “simple” documents with two or three witnesses from Judaea are also either in Hebrew and/or dated by the year 73 Although, as Hannah Cotton points out to me, perhaps we should take the scribe as the fifth witness. Since, however, the other documents have been categorised by counting witnesses but not including scribes as potential witnesses in that count, it seems best to note the possibility that scribes could count as witnesses here but leave it an open question. 74 Parties to the transactions and scribes “for the much greater part Jews living under Roman rule”: Cotton, “The Guardian (’ΕΠΙΤΡΟΠΟΣ) of a Woman” (n 31) 267 and (quotation) R Katzoff and D Schaps, “Introduction”, in Katzoff and Schaps, Law in the Documents (n 8), 1, 4. 75 Quoted (MBB 10:2) in C Hezser, Jewish Literacy in Roman Palestine (Texts and Studies in Ancient Judaism 81) (2001) 304. 76 Quoted (MBB 10:1) in Hezser, Jewish Literacy (n 75) 305. 77 Citations in Hezser, Jewish Literacy (n 75) 305 and Cotton, “Guardianship of Jesus son of Babatha (n 32) 102.

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“of the freedom of Israel” or the year of “bar Kockba, the prince of Israel”, while the Judaean double-documents with two or three witnesses display similar signs of observant Judaism, like the use of Hebrew (P Mur 29–30), or references to the ketubbah (P Mur 21) and “the law of Moses and the Jews” (P Mur 19).78 Although these Jews would thereby be conforming to a standard of Jewish behaviour that was enunciated as a standard only later, conformity even to what was a prevalent habit makes sense as an explanation, for these Jews could have drawn up their marriage contracts with five witnesses, for example, but chose to use only three. F. CONCLUSIONS One of the great questions about these documents from the Judaean desert from the time of their discovery has been just how “Jewish” the law signified in them was.79 The external indicators discussed here – of language, dating formulae, physical form and witnessing – while not in and of themselves probative, help to point in certain directions. The use of Greek rather than Aramaic takes its practitioners not only towards the ruling authorities and the secular courts, but away from Jewish practice, especially if the use of the gentile courts was frowned upon by the (later) rabbis.80 The use of full 78 Also P Mur 18, in which the provision to pay a 20 percent fine on an interest-free loan even if the sabbatical year intervened can be interpreted as “displeasing to the rabbis” but “reconcilable with the biblical prohibition”: S Schwartz, Imperialism and Jewish Society, 200 BCE to 640 CE (2001) 68–69 (n 78). 79 For example, on P Yadin 18 alone, see U Yiftach-Firanko, “Judaean desert marriage documents and ekdosis in the Greek law of the Roman period”, in Katzoff and Schaps, Law in the Documents (n 8) 67, 67 note 2; on the law of succession, see H M Cotton and J Greenfield, “Babatha’s Patria: Mahoza, Mahoz ‘Eglatain and Zo’ar” (1995) 107 ZPE 126; H M Cotton, “Deeds of gift and the law of succession in the documents from the Judaean desert”, in B Kramer, W Luppe, and H Maehler (eds), Akten des 21. Internationalen Papyrologenkongresses Berlin 13.–19.8.1995 (Archiv für Papyrusforschung Beiheft 3) (1997) 179; H M Cotton, “The law of succession in the documents from the Judaean desert again” (1998) 17 SCI 115; on marriage contracts, Cotton, “Cancelled marriage contract” (n 12) 65, 77–85; Cotton, “Rabbis and the documents” (n 13) 173–179, Cotton, “Marriage contracts” (n 13); on the law of guardianship, Cotton, “Guardianship of Jesus son of Babatha” (n 32) and T. Chiusi, “Zur Vormundschaft der Mutter” (1994) 111 ZSS (rA) 155, 178–196. A way into this literature is provided by Katzoff and Schaps, “Introduction” (n 74); as Schiffman, “Reflections on the deeds of sale” (n 67) 185 notes, eclecticism (Hellenistic, Roman, mishnaic, Nabataean, Jewish law all potentially represented) is the hallmark of these documents; Cotton argued that Jews used “the legal instrument that seemed to them most effective” (“Rabbis and the documents” [n 13] 177) and that “to say that Jews are writing “non-Jewish” contracts is merely to say that the legal usage in these contracts is not always in harmony with what eventually came to be normative Jewish law” (“Impact of the documentary papyri” [n 4] 236). 80 For gentile courts, see above n 34, although note that these Jews continued to adhere to their own religious ordinances, see Cotton, “Bar Kokhba revolt” (n 4) 134 and notes 7–8. The late use of Greek for documents from Judaea – the earliest that can be certainly dated are P Yadin 11 and P Mur 115, both dated to ad 124 – has suggested to A M Rabello, “Civil justice in Palestine from

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double-documents is compatible with the Roman, the Greek and the Jewish worlds, although a full inner text points more decisively towards the Romans than towards the others. The use of more than three witnesses is compatible with all three worlds as well, but the numbers seven and five point more distinctly towards Roman practices and models, while two and three map well onto local Jewish custom and may even have been a deliberate choice of Jews in the fervour of rebellion in ad 66–70 and 132–136. At one end of this spectrum, in Arabian double-documents, we find chiefly the Greek language, Roman dating formulae, the most Latinisms, the fullest doubled-documents with the most witnesses, and the clearest attempts to edge as close as possible to a new system of law and a new legal authority. In Hebrew documents of the revolts we find revolutionary dating formulae, mixed evidence about inner texts in doubled-documents, and the clearest conformities with what the rabbis would later say was the way to behave. The rest – the other Aramaic and Greek documents – dwell in an intermediate world of compatibility with, if not exactly conformity to, both Jewish and Roman standards. In other words, these external indicators seem to serve as guidelines for understanding both the audience and the type of law used within each. Does provenance also provide some sort of guideline? Ze’ev Safrai has recently concluded that the halakhah (the rabbis’ law) was stressed in the Hebrew documents; that the documents in Aramaic “roughly” corresponded to the demands of the halakhah; and that the Greek documents “reflect[ed] a legal practice different from that manifest in the Jewish sources”, although not incompatible with it.81 He then maps these differences on to the geography of Palestine, observing that the rabbis are notably unhappy with the Jews outside the land of Israel in the territory called the Rekem – Jews defined by the rabbis as “erring converts” or “converts and those who err”, and who were lamentably dependent on gentile, that is Roman, courts. Once Safrai identifies the area around Mahoza – where Babatha and Salome (although not their husbands) come from – as the Rekem, all falls into place for him:

63 BCE to 70 CE”, in R Katzoff (ed), Classical Studies in Honor of David Sohlberg (1996) 293, 300–303, Cotton, “Cancelled marriage contract” (n 12) and Cotton, “Papyrusdokumente aus der judäischen Wüste” (n 13) 237–238 that Jewish legal autonomy in Judaea may have survived until 70; yet the seventy-year gap (ad 70–124) may also suggest that, contra Cotton and Eck “Roman officials” (n 52) 36–41, a governor’s conventus in Judaea/Syria Palaestina was established rather later even than ad 70, or may have been used considerably less than the conventus in other Roman provinces. (They note that as of yet there is no evidence for the conventus at all, but argue that it was probably instituted as soon as Judaea was made an independent province with a senatorial governor, because one was instituted in Arabia shortly after that province’s founding.) 81 Safrai, “Halakhic observance” (n 29) 235.

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although Jews, they are the furthest away from rabbinic practice.82 The other Nahal Hever documents, in Greek and Aramaic, are closer, and the P Murab’bat documents in Aramaic and Hebrew, which derive (he believes) mostly from refugees from Ein-Gedi, are the closest of all: “the differences in the degree of correspondence to the rabbinic halakhah”, he concludes, “are not dependent solely upon the language of the document, but also upon the place where it was written”.83 But some of the geographical details of this argument do not line up the way they need to, and the rabbis’ marginalised position between the two revolts makes the argument’s reliance on the later halakhah problematic.84 Another way to come to the same conclusion, not so vulnerable to the vagaries of (not always attested) provenance, is to look at the physical form of a document – not just its language, but also its dating, doubling and witnessing. For these aspects of physical form together provide indications of the attitudes of the documents’ users, along a continuum from the wholly unassimilated to Roman practice – possibly even hostile to Rome – and so presumptively relying on local (and in some cases specifically Jewish) law and local courts, to the very assimilated, which suggests that the law upon which they operate will come from Greek, or even Greek edging towards Roman, traditions.85 Before undertaking the enjoyable but very difficult business of comparing the subtleties of legal language, forms, and concepts, crude exterior indications may give reassuringly broad hints about what will be found. The dynamic of Romanisation in Judaea and Arabia such a composite picture conveys is one that leaves an enormous amount of room within its frame for personal choice – of documentary form, of law followed, and, potentially, of court. In the shadings of its colours such a picture also suggests a range of responses to the presence of the Romans, as well as the tantalising 82 Suggested also by, e.g., Cotton, “Guardianship of Jesus son of Babatha” (n 32) 100, on Jewish practices and rules about an orphan’s mother: “there is nothing to show that Babatha was aware of any of them”. Goodman, “Babatha’s story” (n 36) 175 notes that Babatha has no expectation that litigation would take place “before Jewish courts or be decided by Jewish authorities. The rabbis evidently did not interfere much in Mahoza”. 83 Safrai, “Halakhic Observance” (n 29) 206–207 and 223 (quotation). 84 The P Mur documents are not merely from Ein-Gedi, but are a composite collection from a number of different times and places: see Cotton, “Languages of the legal and administrative documents” (n 11) 220–225; Eshel et al, “Four Murabba’at papyri” (n 21), and Eshel, “Use of the Hebrew language” (n 16) 249–250; on the rabbis’ marginalised position, see Schwartz, Imperialism and Jewish Society (n 78) 103–110. 85 This would then reinforce one of Eck’s speculations in “Bar Kokhba revolt” (n 3) 86, that the Jews from Mahoza could have been “innocent refugees afraid of reprisals”; Cotton, “Bar Kokhba revolt” (n 4) 151 suggested that these Jews were “refugees who left Arabia after the revolt had been put down there”.

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possibility that the picture’s dark corners of legal stand-offishness correlate well with political indifference (or hostility) and, in this case, singular religious commitment. Finally, Roman documentary preferences seem to be clearly outlined on the canvas, a gleaming, four-strand rope easily perceptible amidst the purposeful swirls of varying responses and local law. These preferences give focus and centre to the picture, present the eye with something to follow, and thereby provide one model of how Romanisation – voluntary, not imposed – worked. Publications of Documents: P Dura=C B Welles, R O Fink, and J F Gilliam, The Excavations at DuraEuropos. Final Report V. 1. The Parchments and Papyri (1959). P Mur = P Benoit, J T Milik, and R de Vaux, Les Grottes de Murabba’at (Discoveries in the Judaean Desert II) (1961). P Hever = H M Cotton and A Yardeni, Aramaic, Hebrew and Greek Documentary Texts from Nahal Hever and Other Sites (Discoveries in the Judaean Desert XXVII, 1997). P Jericho, P Sdeir, P Se’elim = J Charlesworth, N Cohen, H Cotton, E Eshel, H Eshel, P Flint, H Misgav, M Morgenstern, K Murphy, M Segal, A Yardeni and B Zissu, Miscellaneous Texts from the Judaean Desert (Discoveries in the Judaean Desert XXXVIII, 2000). P Yadin= (1) N Lewis, The Documents from the Bar Kokhba Period in the Cave of Letters. Greek Papyri (Judaean Desert Studies) (1989). (2) Y Yadin, J C Greenfield, A Yardeni and B A Levine, The Documents from the Bar Kokhba Period in the Cave of the Letters. Hebrew, Aramaic and Nabataean-Aramaic Papyri (Judaean Desert Studies) (2002).

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4 Roman Law Codes and the Roman Legal Tradition J Harries A. INTRODUCTION From the mid-fifth century bc, if not earlier, when law was first set out in writing, the Romans were interested in the creation of systems. The act of writing down the law that became known as the “Twelve Tables” in c 450 bc was the result of a process of selection and arrangement, carried out, according to later tradition, by Boards of Ten, whose rule degenerated into tyranny. The relationship between what was included and what was left out is largely lost to us. Understanding is not helped by the assumption of the later authors, such as Cicero and Livy, who explain the emergence of the code in terms of the Struggle of the Orders. The involvement of Appius Claudius and the later turbulent history of the gens Claudia further distorted perceptions of a sketchily recorded distant past.1 Archaic in language and increasingly obscure in meaning, the Twelve Tables remained a point of legal reference throughout antiquity, for some thousand years.2 Jurists, such as Servius, struggled with the etymology of the decemvirs’ legal terminology,3 and the exact distinction between, for example, “manifest” and “non-manifest” theft was vigorously debated.4 But what was obscure to classical jurists may have been clear enough in practice to satisfy the requirements of a small, agriculturally-based community in the fifth century bc. That the terms of debate – manifest/non-manifest forms of theft, or the capacity of rainwater (aqua pluviae) to do harm – proved remarkably tenacious in juristic legal analysis5 is a demonstration of the power of the legal tradition and the ability of jurists to sustain a technical discourse in its own terms over many centuries. Whether this established “legal isolationism” beyond dispute is another question. 1 2 3 4 5

T P Wiseman, Clio’s Cosmetics (1979) 57–139. E.g., see CTh 9.42.9 of June 380, omitted from the Codex Justinianus. As cited by Aulus Gellius, Noctes Atticae 2.10. Cf. A Watson, “Law and Society” above, 9–10. See Watson, “Law and Society” (n 4) 11–18.

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Roman legal history is framed by two codifications, the Twelve Tables, which limited its contents to initially ten and then twelve tablets, and the Corpus Iuris Civilis of Justinian, the compilers of which in 530 ad were confronted by a mass of material set out in (by their count) two thousand books, containing three million lines6 accumulated “since the days of Romulus”.7 Justinian, the product (and overlord) of a sophisticated bureaucratic and legal culture developed over many centuries, cited precedents, assumed a high level of literacy on the part of both the compilers and the users of his codes, and explicitly asserted an agenda to promote legal education and the improved access to legal material, which would assist court practice. By fixing the juristic record for all time, he extended imperial control over jurisprudence, as well as all other sources of law. It should not surprise that two law codes nearly a thousand years apart should diverge in aims, length, content and even material form. But are the words “law code” as applied to the Corpus Iuris Civilis correct? Strictly speaking, only the Codex Justinianus was a “code”: the Institutes were a textbook of first principles, and the Digest, or Pandecta, an encyclopaedia. Fergus Millar has commented that “in no real sense was the Digest a code of law; on the contrary, it is a collection of varying opinions on points of law.”8 So it is worth asking what, in ancient terms, was a law code in a “real sense”. Who had the right to create them? Did they require some form of “official” input or endorsement? What was the status of “interpretation”, when codified? And were their purposes and impact solely, or even primarily, “legal”? B. CODES AND AUTHORITY A law code must carry authority to be effective. But “authority” in the ancient world is an elusive concept. To start with, the “code” must earn social acceptance and be applied, in some sense, in daily life. For the ancients, the authority of codes and codifiers was key to their success. Ancient Greek lawgivers (nomothetes) enjoyed an enviable status as shapers of their communities. The laws and institutions ascribed to them were embedded in polis identity, as they both expounded and justified the ways that citizens conducted their daily lives. The ancient Spartans ascribed the excellence (as they saw it) of their entire constitutional, legal and social system to the legendary lawgiver, 6 Constitutio Omnes 1. 7 Constitutio Tanta 1. 8 F Millar, “The Greek East and Roman law: the dossier of M Cn Licinius Rufus” (1999) 89 JRS 90 (= H Cotton and G Rogers (eds), Government, Society and Culture in the Roman Empire, Rome, The Greek World and the East II (2004) 435).

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Lykourgos;9 such was the importance that he attached to social conditioning or training, that, it is said, he refused to have his laws written down.10 Like the Romans later, the Spartans were bound by unwritten custom, even more than by written law. The Athenians accorded similar veneration to the “laws” of Solon, whose archonship with special powers is traditionally dated to 594 bc; politicians under the democracy invoked his authority to justify their so-called revivals of his “ancestral constitution” and Cicero believed that provisions on funerals preserved in Roman archaic law were taken directly from Solon’s legislation.11 What the Greek “constitutions” shared with the Twelve Tables was an iconic status; their provisions were so self-evidently right that appeal could be made to them indefinitely. Where the Greeks differed from the Romans was that the personal authority of Greek lawgivers (even when, like Lykourgos, they may not have existed) and their codes reinforced each other; for the Romans, the Twelve Tables deserved respect in their own right, regardless of the shortcomings of their authors. It might appear to follow from this that some state or formal community authority is required for a law code to be accepted as such, and that therefore attempts at imposing system on law, or different types of law, by Roman private individuals should not count, for our purposes, as “codification”. Under this criterion, Salvius Julianus’ “codification” of the praetor’s edict would count as a law code because he was commissioned to do the job by Hadrian, perhaps resulting from a visit by that emperor to Julianus’ native Africa in ad 128. But was the edict, before Julian, a law code? Even before Julianus’ project, the annual recensions of the edict were carried out by a succession of praetors, who adjudicated on behalf of the community. It was categorised as a distinct form of law, the ius honorarium, described by a later authority as “giving voice” to the ius civile, and it received a commentary from Antistius Labeo as early as the reign of Augustus, implying that the text was, in some sense, seen as fixed. But here theory may have conflicted with practice. An “edict”, in theory, had validity only for the duration of its author’s office, usually one year. Although in practice, as Labeo recognised, few changes were made by new incumbents of the office, praetors’ edicts lacked guaranteed stability. On the other hand, the praetorian edict before Julian did have one feature necessary for the successful law code, namely an accepted method of regular revision and renewal; after Julianus, the emperor was, in this respect, his own “praetor”. 9 Xenophon, Constitution of the Lakedaimonians 1.2. 10 Plutarch, Life of Lykourgos 13. 11 Cicero, De legibus 2.62.

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Already, therefore, our concept of what a law code is may require modification, to allow for the “rolling” law code that was the praetor’s edict before c ad 130. More difficult is how we interpret attempts at creating systems by private individuals, including many jurists, working independently of state authority. Crucial to their acceptance was the individual auctoritas of the author, a standing in the community, which may not have depended on jurisprudence alone. The ius Aelianum, or Tripertita, was an updated edition of the Twelve Tables by Sextus Aelius Paetus Catus, which added a list of relevant legal actions; it helped that he was consul in 198 bc, although his revision was not (necessarily) a product of his consular year. The standing of some jurists may have been enhanced by time. Salvius Julianus’ auctoritas was at least partly dependent on Hadrian’s patronage. The lawyer from Hadrumetum backed up his edict with a ninety-book commentary, which took decades to complete, but may not have achieved the consulship, the ultimate reward for his endeavours, until 148, some twenty years after the inception of the edict project. Nor, later, would he be included in the Big Five jurists listed as primary authorities in the Law of Citations in 426.12 That Julianus had authority among contemporaries and later is undeniable, but it may have been harder won than we realise. The “Law of Citations”, which was made redundant by the Digest and discarded by Justinian, confirms what is also known from extant court records, that the opinions of jurists had the force of law in court proceedings and legal disputes. The combined weight of their authority plus that of Justinian as codifier establishes their position as sources of “law”, both for students and for litigants. Had the purpose of the Digest been solely education, we might agree that the Digest was not stricto sensu a law code. But, like the other constituent parts of the Corpus Iuris Civilis, the intention was that it be cited in real disputes, as jurists had always been. The difference was that those juristic works or parts of works excluded by the compilers of the Digest were no longer to count, and Justinian would be his own jurist in the future. Should commentaries be read as indicators that their subject had achieved “law code” status? Quintus Mucius Scaevola’s commentary on the ius civile was arguably the creation of both a system and a commentary. Written probably in the 80s bc, it arranged the civil law by genus and may have defined its scope in line with the Twelve Tables, but was not an “official” code. Yet it received commentaries, including a major work Ad Q Mucium by Pomponius in the second century. As we have seen, Labeo’s commentary on the edict 12 CTh 4.1.3. The five were Ulpian, Paul, Papinian, Modestinus and Gaius, with a special mention of the Sententiae Pauli.

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implied that there was something fixed to comment on, although that was not formally the case. In the second century ad, jurists at Rome began to write commentaries on the Publica Iudicia, which retrospectively ascribed to Augustus’ ad hoc legislation on public offences, not least his statute regulating the procedures of the iudicia publica, the status of a codification of public (criminal) law offences and processes. This, as we shall see, caused stresses in the judicial system but also created an enduring framework for interpretation and the codification of public criminal law in Late Antiquity.13 C. “PUBLIC” CODES AND “PRIVATE” SYSTEMS Tidy as the distinction between public/official on the one hand and private/ unofficial on the other may appear, it has limited usefulness, because it fails to take account of the importance of auctoritas as a means by which private individuals could direct public policy. Whatever its date, the ius Aelianum mattered, because its author was a consul, and knew his law. The auctoritas of Scaevola was underpinned by his membership of a consular and juristic dynasty and his standing as consul (in 95 bc), public speaker and Pontifex Maximus. The role of the Pontifex Maximus as legal authority, to which we will return, supplemented and reinforced the impact of “Q Mucius” on contemporaries and the later legal tradition. Auctoritas was not defined in terms of public or private: it was the attribute of a statesman or other public figure which attached to him, regardless of whether or not he held office, and ensured that he was listened to and could therefore get things done. Augustus in the Res Gestae summarised its effect: he had more auctoritas than anyone, he said, although he had no more power than his colleagues in the several magistracies. And what are we to make of the “official” status, or not, of the Codes of Gregorius and Hermogenian (see Roger Rees’ chapter in this volume) of respectively ad 292 and 295? The latter passed through several later editions and was “continued” well into the fourth century, because it was an authoritative point of reference, and its status was recognised, in retrospect, by the authors of the Theodosian Code, whose project was set out “to resemble” the earlier compilation14. The “official” status of the CG and CH is unknown, and that may be for very good reason. Perhaps we are asking the wrong question, and our assumptions on “public” versus “private” may be as unhelpful as our proposed contrast between official and otherwise. 13 See below, 99. 14 CTh 1.1.5.

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When Alan Watson writes elsewhere in this volume that the Roman jurists “drew a remarkably sharp distinction between private law and public law”,15 the question of the application of this insight to Roman legal culture in general is worth a pause. For if the Romans blurred the public/private distinction in common discourse, while the jurists rigorously maintained it, Watson’s case for legal isolationism, advanced by him consistently over many years, would receive a further boost. However, Roman perceptions of public and private were in many respects distinctive; forensic rhetoric, for example, tied private character to public behaviour; and the houses of the rich were designed as little law courts or places of business as well as private dwellings. Might the Romans’ understanding of the “public” and “private” in law also be peculiar to them? Early in the third century ad, Ulpian’s Institutes16 declared the existence of two categories of law: the “public”, which applied to religious law and the res publica, and the “private”, which concerned the affairs of individuals and could be considered under the headings of natural law, the ius gentium and the ius civile. The problem, potentially, for Watson’s case is that Ulpian and the “classical jurists” were writing under the Roman Empire. Even if the difference between public and private law (in our terms) could be clearly understood in the early third century, the distinction may not always have been observed in the same terms. If it was not, then we may also see highlighted a problem posed by codification for all historians of law, the imposing, in retrospect, of ways of thought and systems applicable at the time of writing but not earlier. One area, where Ulpian’s public/private distinction is problematic, when applied anachronistically, is family law, specifically the laws of succession, testaments and adoption, and its Republican context in (public) religious law. Down to Scaevola’s violent death in the Temple of Vesta in 82 bc, the ius civile, qua juristic discipline, had been struggling to escape from the pontifical matrix, a task both helped and hindered by the pontifical status of the great jurists Publius (consul 133) and Quintus Mucius Scaevola, père et fils. As pontifices, consuls and jurists, they had substantial influence on sacred and civil law (the avoidance of the word “private” is deliberate). It was not the case that the Pontifex Maximus was “only” the interpreter of (religious) law;17 as the prime investigator of, say, the correctness of a proposed adrogatio, or adoption of a male who was sui iuris, his decisions influenced the way that 15 Watson, “Law and Society” (n 4) 16. 16 D 1.1.1.3. 17 See Watson, “Law and Society” (n 4) 23.

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law might develop.18 And, as Cicero’s complaints about the Scaevolae and sacra show, the modifications made by the pontifical jurists in the rules of the transmission of sacra were not mere interpretations, but the creation of rules, which stuck. The law of succession is usually assumed to be part of “private” law; certainly the jurists of all periods had a lot to say about it and the wording of wills was a favourite topic among the Republican jurists and their successors. However, under the Republic, the familia and its sacra had a public dimension, and the law applying to certain parts of its activities was under the direction of the (public) religious authority of the pontifices. As Cicero claimed, adjusting pontifical law to the ius civile was both hard and contentious. In his view, the Scaevolae, by over-complicating matters, damaged both pontifical law and the organisation of funeral arrangements (to be conducted by the new holder of the family sacra).19 In their religious context, wills could require public sanction, and as late as the third century ad Papinian stated that wills were part of public law;20 guardianships also were a “public” duty. In addition, all adrogationes, because they affected familia continuity, were scrutinised by the Pontifex Maximus and submitted for approval to an assembly convened for the purpose, the comitia curiata. In the late Republic, the boundary between public and “private” was porous in other respects. Procedures we might define as private, such as those applied to delicts, entailing penal compensation, were translated into the setting up of the first standing public quaestio, established by the lex Calpurnia de repetundis in 149 bc.21 As the res publica was reshaped by the principate of Augustus and his successors, the meaning of “public” also changed. The praetorian quaestiones, initially courts of investigation, which supplemented the popular courts (iudicia populi), were quietly transformed into the publica iudicia of Augustus and after, and the ancient iudicia populi ceased to be, along with the popular legislative and electoral assemblies. And when Augustus took over the title of Pontifex Maximus on the death of the previous holder of the office in 12 bc, the process of subsuming religious law under the responsibilities of the imperial legislator was well under way; adrogatio, once under the control of the Pontifex Maximus, is, in the Digest, an alternative form of adoption to be scrutinised by the “courts”.22 The terminological and conceptual sleights of hand involved and connived at by 18 19 20 21 22

Cf Aulus Gellius, Noctes Atticae 5.19.6. Cicero, De legibus 2.47–2.49, 2.52–2.53 D 28.3.1 (Papinian, Definitions 1). J S Richardson, “The purpose of the lex Calpurnia de Repetundis” (1987) 77 JRS 1. D 1.1.7 (Papinian, Definitions 2).

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not only Augustus but, one suspects, the elite in general is a silent testament to the exercise of aristocratic self-interest at the expense of both popular and religious traditions. Thus far it is clear that to define codification in a “real sense” is more problematic than might appear. Law codes had authority, but not necessarily that of the state; it could derive from the personal auctoritas of the codifier, his circumstances, and the context in which the code emerged. It was also possible for “codes” to be created in retrospect. The content of codes was not confined to statutes, but to any authoritative collection of legal pronouncements, including the interpretations of the jurists, whose auctoritas was renewed over the centuries through their citation in the courts. And just as the concept of auctoritas bridged the public and private domain, so too the public and private dimensions of law were less easily separated in the time of Cicero and Augustus than might appear from the tidy categories favoured by classical jurisprudence and the codifications of Late Antiquity. D. CODIFICATIONS IN LATE ANTIQUITY The Code of Theodosius in 438 and the Corpus Iuris Civilis marked a new departure in codification.23 When in 42924 and 435,25 Theodosius declared that his Codex would be known by the imperial name, we are in a different, more centrally directed world even than that of Hermogenian. In the 430s, it was Antiochus Chuzon and his team who did the work; in the 530s it was Tribonian and his officials.26 But, while the compilers were honourably named in the imperially “authored” preambles, the “official” author was the emperor. The change in nomenclature reflects the ascendancy of the Byzantine bureaucracy, under which individual achievement was subsumed by the interests of the machine. True, it was always the convention that the emperor personally wrote his speeches, even when he did not.27 However, the prominence of emperor as author of his own laws may be also a result of the activity of the imperial quaestor behind the scenes as spokesman of the emperor and

23 For an overview of developments on the CTh see A D Lee (2002) “De-coding late Roman Law” (2002) 92 JRS 185, review-discussion of J Harries, Law and Empire in Late Antiquity (1999) and J Matthews, Laying Down the Law: A Study of the Theodosian Code (2000), along with T Honoré, Law in the Crisis of Empire, 370–455 AD: The Theodosian Dynasty and its Quaestors, with a Palingenesia of Laws of the Dynasty (1998). 24 CTh 1.1.5. 25 CTh 1.1.6 with reference to two different undertakings. 26 T Honoré, Tribonian (1978). 27 F Millar, The Emperor in the Roman World (1977) 203–206.

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drafter of his laws.28 There is no evidence for quaestors as legal draftsmen in the time of Diocletian, which may partly explain why Gregorius and Hermogenian were still free to call their codes by their own names. We must distinguish between the applicability to real life of the individual entries in the imperial law codes and the codes as codes. On the face of it, the contents of the collections of imperial constitutions, the Theodosian Code of 438 and the Justinianic Code of 529, re-edited in 534, do rather well as reflectors of real life. They are the admittedly truncated responses of emperors to real problems, brought to them by reports or representations from officials, other interest groups, such as town councils, or petitioners, usually funnelled through officialdom in some way. Because the emperor’s remit covered everything, some “leges”, so-called, appear to apply more to life than they do to law. When the office staff of the governor of the Euphrates province became agitated because wild animals for export were being improperly held up for months at the city of Hierapolis, the emperor replied that it was quite wrong for this to happen; the inclusion of the response in the Theodosian Code elevated regulation of animal transport to a general principle.29 The same section, by the way, also addressed wild-life conservation: lions could be shot as dangers to livestock but not otherwise harmed. Such were the reallife problems attending the supply of animals to the Roman games, of which Symmachus’ letters also provide lively attestation.30 But modern students of the Digest might have problems recognising such preoccupations as “Roman law”. Because imperial constitutions were responses to representations, which were often self-interested, such as those from the officials in Euphratensis, or from town councils insisting that councillors should carry out their hereditary obligations, there was also an interest on the part of the recipients in seeing that the emperor’s will was observed. Of course, some laws were repeated because earlier enactments had been ignored, but in general, the existence of a law implies a problem, a solution, whether temporary or permanent, and some activity on the part of both legislator and recipient.31 The contents of the Digest, too, while collated primarily for educational purposes, were also highly relevant to court practice, despite, or perhaps because of, their antiquity. But the codes, as codes, are rather different. To return to the question 28 T Honoré, “The making of the Theodosian Code” (1986) 103 ZSS (rA) 133; J Harries, “The Roman imperial quaestor from Constantine to Theodosius II” (1988) 78 JRS 148. 29 CTh 15.11.2. 30 CTh 15.11.1. 31 Harries, Law and Empire (n 23) 82–88.

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posed above, what are the features of a law code? For present purposes, we may take it that it must exist in written form although, as we have seen, the ancients acknowledged the importance of the unwritten as well. It must have authority, which may be expressed in several forms, and may not carry overt “state” endorsement. That authority must be accepted by those for whom the law code is made. Cicero’s imaginary law code in books 2 and 3 of the Laws to which we will return is not such a law code, because Cicero, although a consul and senator, was not empowered to issue legislation binding on the community as a whole, nor did he have the personal standing (or the desire) to impose his code on the res publica. A law code may resemble a “constitution”, in the modern sense, in that it provides a set of first principles, but does not elaborate in detail; Justinian’s Institutes are the prime illustration of this. It may be a written statement of custom or what had been unwritten but accepted before. Alternatively, it may be an attempt to impose system on a proliferation of legal material, as Theodosius and Justinian both hoped to do. If it is to work, the law code must also be accessible to those requiring to consult or to invoke it. Ancient cities with law codes resorted to inscriptions to publicise and preserve their laws. The Code of Gortyn is an example of this;32 so too were the Twelve Tables, in their day. Inscriptional preservation also protected from unauthorised modifications, as circulation in papyrus or vellum or other perishable forms, through copying and private collections, did not. Conversely, while the text might be fixed, there had also to be scope for the law to evolve. The Theodosian compilers were aware of some of these requirements and did their best to meet them. Detailed instructions were given as to the copying and storing of the Codex and the protection of its text; these were read out to the Roman Senate by the prefect Anicius Glabrio Faustus in December 438.33 The appearance of its provisions in the, ironically, post-Roman West in such diverse places as a bishop’s commentary on Ambrose’s De Fide, the Breviarium of Alaric in 506, the so-called Consultatio of some ancient jurist and the Merovingian scriptoria34 suggest that, in the West, the Theodosian Code passed the accessibility test. Even where the writ of the Empire that created it no longer ran, the “laws” of Theodosius had a totemic value, as a statement of Roman identity in an increasingly alien “barbarian” world. But just how relevant, really, was the act of codification to the real life of the 32 J Davies, “Understanding Gortyn: When is a code a code?”, in L Foxhall and A Lewis (eds), Greek Law in Its Political setting (1996) 13. 33 Gest Sen 7. 34 I N Wood, “The code in Merovingian Gaul”, in J Harries and I Wood (eds), The Theodosian Code. Studies in the Imperial Law of Late Antiquity (1993) 161.

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Empire? Take the question of language. Did the citizens of Greek-speaking Antioch or Alexandria – or even Constantinople itself – receive law codes written in Latin with the same orchestrated jubilation as that expressed in the Gesta Senatus at Rome in December 438? One rather doubts it, although there was probably an increase in the learning of Latin in the Greek East in the fourth century and John Matthews has pointed out that Latin remained strong in court circles till well into the sixth century.35 Even under the Roman Republic, some enterprising governors of provinces in the Greek East issued their edicts in Greek. Latin was the language of government, among the governors, but Greek was the language of communication with the populations of the Eastern Empire. Even in 438 (let alone 530), the appearance of a Latin law code in Constantinople may have raised a few eyebrows – including perhaps those of Cyrus of Panopolis, who, as Prefect of the Orient in 439–440, would be the first to issue his edicts directly in Greek.36 How much stranger would have been the emergence in the 530s of the Corpus Iuris Civilis, with its notion that the law students of Berytus and Constantinople should learn their law in a language, which had no application in daily life – even while Justinian rolled out his Novellae in Greek? The Latin language was, symbolically and traditionally, the language of power. The issuing of the Codes was also a statement of power, irrespective of the practical application in the courts or the classrooms of the end product. The Theodosian Code issued law to the whole Empire, but it was the work only of the eastern court. Its completion was timed (and perhaps accelerated) to coincide with the marriage of Valentinian III and Theodosius’ daughter, Eudoxia, and formally presented to the chief praetorian prefects of East and West to mark that happy event.37 It asserted imperial control of the past by excluding from future application all previous imperial constitutions extraneous to the Code,38 a principle which Justinian extended to the Digest also, thus consigning to oblivion all sections of juristic writing omitted by his codifiers. As assertions of imperial rule by law and the divinely ordained beneficence of the Christian Pax Romana, Theodosius and Justinian used the language of promulgation to assert the omnipotence of their autocracy.39 This was sometimes regardless of accuracy. Theodosius claimed in February 438 35 36 37 38 39

Matthews, Laying Down the Law (n 23) 28–29. John Lydus, De magistratibus populi Romani libri tres 2.12; 3.42. Gest Sen 3; Matthews, Laying Down the Law (n 23) 1–9. CTh 1.6.3 of 435; NTh 1.1.3; 6 of 438; 2.1 of 447. Gest Sen 2 (Theodosius); Const Imperatoriam, preface; D Simon, “Legislation as both a world order and a legal order”, in A Laiou and D Simon (eds), Law and Society in Byzantium, NinthTwelfth Centuries (1994) 1.

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that his Code could be consulted about how to draw up a stipulatio;40 this was not true. This self-advertising culture was of a piece with the carefully choreographed public appearances of emperors, which were designed to impress the beholder with the grandeur of the imperial image, separated from the rest of humanity, larger than life and immune to the physical frailties of common mortals. Floating on a sea of Greek, the Latin-speaking lawyers may have been prisoners of their culture to a greater extent than we realise. Imbedded in the thinking of both emperors was an assumption that law was both useful (in court) and educative, in the sense that it created better citizens. A long philosophical tradition of law as education stretched back to Plato and other philosophers, via Cicero. The latter’s Republic and Laws were extant in Late Antiquity and carried sufficient weight to be points of reference for Augustine and others. Cicero was in no doubt as to the educative purposes of legislation: in his account of the founding of the Roman community in Republic 2, Numa Pompilius’ reforms in dividing the land “instilled a love of peace and relaxation”,41 while his institution of games and festivals “won over [the Romans] to mild and civilised behaviour”.42 While Cicero’s preference for a “mixed constitution” created over centuries by wise men would have been incompatible with the values of Late Antiquity, he would have recognised the educational aims of Theodosius’ magisterium vitae43 which set out “what should be observed and what avoided”.44 Acts of power, presented with dubious accuracy and adorned with philosophical musings of doubtful relevance, do not necessarily make for conceptual or legal coherence. Theodosius’ timetable was determined by a non-legal event, the marriage of his daughter, and he failed to follow through his initial three-code design; Justinian was an emperor in a hurry. So should we unquestioningly have more confidence in Justinian and Tribonian than we might have in their modern equivalents, whose efforts are often greeted with public scepticism. What factors, unacknowledged by their authors, might undermine the practical application of the late Roman law codes? First, in Theodosius’ mind, at least, there was confusion about what the codification project was for. Was the “first code”, as envisaged in 429, to contain only laws valid now? Or was it to contain also past material for the 40 41 42 43 44

NTh 1.1.1. Cicero, De republica 2.26. Cicero, De republica 2.27. CTh 1.1.5. Cf De republica 3.33 and De legibus 1.33, on law as “right reason” in “commanding and forbidding”.

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educational benefit of students of the legal tradition? The provision that the latest dated law invalidated contradictory earlier laws appeared to take care of the question of validity for purposes of citation in the courts and allowed the legal historians and educationalists to have their way. However, it left some questions unanswered. Were later laws always best? How was the volume of material to be controlled if obsolete and superseded constitutions were included because of their antiquarian interest? What should happen if an extant law had fallen into abeyance, but never been formally rescinded? CTh 1.1.5, of March 429, is the minute of a committee and reflects a compromise between different views as to the purpose of the project. I suspect that the conflict continued in the selection of the material used. There are some cases where an earlier constitution is repealed by a later, for example on the holding of the Maiuma (in Gaza) permitted in 396 and banned in 399,45 and the residential status of rowdy monks;46 but both are included (the legal educational value of these two examples is unclear). Others are repealed by implication. The first extant law in the collection has Constantine informing the Lusitanians in 322 that “edicts and constitutions”, which lacked a date and consular year of issue, should have no authority; yet this was obviously superseded by the Code itself, by virtue of the rules set out in extract 5 under the same titulus. But we also know of at least one case of an obsolete constitution in effect repealed by omission, as having “fallen into desuetude” (being ideologically unacceptable to a Christian court). This is Julian’s notorious law forbidding Christians to teach the pagan classics. The compilers did have the text of the law in front of them, and included the part of it which they deemed valid,47 but not the offending clause. This case of repeal by omission is a reminder of the quasi-legislative powers vested in the editors. Modern users of the Code may know less about the contents than they might like to think. All imperial letters and edicts were “authored” by the emperor, but some may do no more than repeat the report or proposal made, and are therefore more accurately the work of the official or group who requested the law. Many constitutions were sent to multiple recipients; we cannot be sure, in every case, that the named recipient was the actual originator of the issue requiring a legal response. Many contained multiple enactments on one or more topics. Julian’s law on teachers had clearly been “buried in perpetual silence”, as Ammianus put it, for some time but it may never have been formally revoked. It made sense, therefore, to repeal the 45 CTh 15.6.1–2. 46 CTh 16.3.1–2. 47 CTh 13.3.5 of July 362.

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law by ignoring it. What we cannot know is how much else in other laws was being repealed by being ignored. Perhaps the greatest difficulties facing the compilers of the imperial codices as practical guides to law in action were the related problems of completeness and exclusion. These were (even) worse for the Theodosian Code than for the Corpus Iuris Civilis, as the latter was the completion of the project, which Theodosius had left unfinished. Like Justinian, Theodosius had envisaged a “digest” of juristic opinions, followed by a complete summary of all law; the last was to be the real “Theodosian Code”. That never happened. Instead, the judges of the Roman Empire were invited, inaccurately, to treat as a complete statement of Roman imperial law, the present Theodosian Code, as modified with additional novellae, for which a process of exchange between the two members of the imperial college was set out.48 This exchange failed to function and the absence of any standing commission for the revision of the Code itself meant that the dossier became increasingly unwieldy (and occasionally incomprehensible) over time. The most serious limitation on the Theodosian Code, at least, was that it was not, and could not be, a complete statement of the law. Because imperial constitutions were so often issued as responses to legal queries, they were themselves a form of commentary or interpretation, not a complete statement of the “law on X”, if such were possible. Yet it would be all too easy for hardpressed officials to assume that what Constantine to Theodosius II said about, say, treason, was all that there was to say. As I have argued (twice) elsewhere,49 the apparent failure of the Theodosian Code to discuss treason in terms of anything other than attacks on the imperial maiestas created a lethal trap for the arrogant and unwary Arvandus, twice Prefect of the Gauls in the 460s. Brought before the Senate by the Provincial Council of the Gauls in 469 and charged with extortion and treason, Arvandus acknowledged publicly (and unnecessarily) that he had dictated a letter to Euric, king of the Visigoths, advising a carve-up of Roman Gaul between the Goths and Burgundians, iure gentium. The spontaneous reaction of the Senate and Board of Judges was to shout out that this was indeed treason. No jurist was cited – the authority in the Digest is Ulpian’s De Officio Proconsulis50 – because this was something that “everybody” (at least in Rome) knew (although the acclamations were followed up by a volley of legal justifications). Yet correspondence with the 48 CTh 1.1.5; NTh 2.1.3. 49 J Harries, “Sidonius Apollinaris, Rome and the barbarians: a climate of treason?”, in J Drinkwater and H Elton (eds), Fifth Century Gaul: A Crisis of Identity? (1992) 298; J Harries, Sidonius Apollinaris and the Fall of Rome (1994). 50 D 48.4.1 (Ulpian, Duties of the Procunsul 7).

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enemy is nowhere cited in the extant Theodosian Code, which excluded all imperial constitutions – but not jurists – outside itself. Instead, it discusses offences “resembling” maiestas, such as counterfeiting imperial coinage or the illegal manufacture of purple cloth; procedural issues, such as torture; and penalties. Little wonder that officials, perhaps with little formal legal education, were unaware that the emperor’s was not the last legal word. Such were some of the factors separating law codes from life. Clearly, law codes had their merits in making law accessible. But setting law in stone, as it were, inhibited the law’s responsiveness to social and legal change. The very existence of a “code” created stresses in the system. Within the late-Roman codes were preserved the outlines of what might be termed quasi- or cryptocodes from previous centuries. In these certain types of law were included and arranged in a fixed order. The edict is the most obvious of these and its long history, both in its own right and as the framework for voluminous juristic civil law commentary, ensured its continued usefulness. It was even possible, after its “codification” to incorporate other actions, to be heard “extra ordinem.51 As, in my view, the concept of ordo, and thus of extra ordinem, is the product of the conservatism of juristic discourse, I avoid its use. There was, I suggest, a problem with public criminal law, which goes back to Augustus’ statutes on the iudicia publica, discussed above. By the second century, the “public crimes” list had become canonical. But society’s view of what is wrong or criminal is not static. There had to be ways of changing the canon, or its contents, without breaking the link with tradition. Various means were employed, none of which amounted to a coherent programme of reform. Senatorial decrees, imperial decisions and, perhaps, court decisions assimilated other offences to one or other public statute. When the late-Roman law codes approached the question of public law, they did so via sections headed “on” a given canonical statute, and included the assimilated offences as well as the original ones. The end of the use of juries in the quaestio procedure, based at Rome, and the universal adoption all over the Empire of the cognitio conducted by one judge allowed a further adaptation, namely the hearing of cases which were not covered by the edict, and offences which were not part of the Augustan “ordo”. In cases of doubt, a magistrate could resort to his policing powers and exercise summary justice, without resort to statute. Should we grant Augustus’ law the status of a quasi-codification of the publica iudicia? One sure indication is the coincidental appearance of a commentary, in this case that of Ateius Capito (also undated), who became 51 C 4.35.1; D 47.19.1 (Marcian, Institutes 1).

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consul in ad 5 (Gellius Noctes Atticae 4, 14; 10.6). Its existence is known, not from the Digest, but from Aulus Gellius’ collection of interesting snippets compiled at Rome in the second century. Unlike the second-century interpreters, Capito did not write a separate treatise on the subject but entitled the ninth book of his Coniectanea (“Bits and Pieces”), De Publicis Iudiciis. How far this was a “legal” commentary is unclear: according to Gellius, himself an antiquarian with legal interests, Capito praised tribunician and aedilician edicts drawn from the distant past and aimed against the rudeness of a Claudia in the third century bc and a rowdy Mancinus in the second. Whether or not Capito was more than an anecdotal antiquarian (the selection we have now would be influenced by Gellius’ own predilections) jurists had not commented seriously on criminal law before, and they were not to do so again until the subject took off in second-century Rome, the city of the antiquarians Pomponius, Gaius and Aulus Gellius, and of the arch-codifier, Salvius Julianus. Like Ateius Capito, Lucius Volusius Maecianus was a politician, who would be Prefect of Egypt; he wrote fourteen books on the publica iudicia. Less detailed, and perhaps for that reason more extensively cited by the hard-pressed redactors of the Digest, was the three-book effort on the same subject of Claudius Venuleius Saturninus. But if the publica iudicia were suddenly trendy, it was also becoming clear that their separate status created procedural anomalies. Public trials, for example, required an accuser, while police proceedings did not. The debate on theft and the Twelve Tables “recorded” (or made up) by Aulus Gellius52 argues that some activities were “criminal” in a social sense, although in a legal sense they counted as delicts, to be pursued by private procedures. By the time of Ulpian (if we are not in the presence of an interpolation), theft was proceeded against “criminaliter”, which could mean “by (public) accusation”. For Aemilius Macer, writing under Severus Alexander, the separate survival of the publica iudicia seems to have been something of an embarrassment: “not all the courts in which an accusation can be brought are public courts, but only those which derive from the statutes on the publica iudicia, for example the Lex Julia on maiestas (etc)”.53 For another Severan jurist, the statutes had outlived their usefulness; Callistratus, who had no known ties with Rome, abandoned the public/private schema altogether.54 But the compilers of the Digest did not. The second of the so-called Libri Terribiles (Book 48) faithfully followed the canon, with a series of chapters 52 Noctes Atticae 20.1. 53 D 48.1.1 (Macer, Criminal Proceedings 1). 54 D 50.13.5 (Callistratus, Judicial Examinations 1).

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“ad” a statute, as did also the codifications of imperial law. More intriguingly, they may not have worked too hard on it. Under the Severans, the publica iudicia, with the exception of adultery, which received wider and more detailed coverage, were dealt with in two-book manuals by Macer and Marcianus, who are both cited thirty or more times. But there was a scholarly obligation to look further back and in Antonine Rome they would have found Maecianus’ fourteen books and Saturninus’ three. The citation of Saturninus twelve times and the presumably more demanding Maecianus, on points of details, a mere four times, may suggest perhaps a certain laziness (or lack of time) on the part of the compilers of Justinian’s definitive statement on criminal law. An alternative (slightly irrelevant) speculation is possible. Something of the career of Lucius Volusius Maecianus was known at Rome in the fourth century, to the author(s) of the Historia Augusta, who dated him, correctly, to the reigns of Antoninus Pius and Marcus Aurelius.55 So the infrequency of the citations is not due to his obscurity. On the other hand, the literati of fourth-century Rome were addicted to biographies (rather than long histories) and epitomes, to which we may add other forms of potted literature. Could it be that, in sixth-century Constantinople, as in fourthcentury Rome, Maecianus was known, not through his complete text, but legal anthologies? E. CONCLUSIONS What may we conclude from all this? First, for the historian (if not the lawyer), Theodosius and Justinian provided indispensable anthologies of imperial responses to real needs and problems. Because, in some cases, such as that of the wild life of Mesopotamia, the essence of the emperor’s answer was “yes”, we have the difficulties of the subject reported, as well as the response of the man at the top. The emperor’s knowledge depended on his attitude to the representations made to him, which may not always have been accurate or balanced. His decisions, therefore, may have been wrong, but they were likely to be efficacious in many cases, because of the self-interest of the recipients in carrying them out. In their setting in Constantinople, the codes represent a failing Latin legal and literary culture. In their original language, they would have a limited function in the Greek-speaking world, yet the Theodosian compilers say nothing about translation. The codes are power statements first, legal state55 Historia Augusta: Antoninus Pius 12.1; Marcus Aurelius 3.6.

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ments second; they were designed to have the same effect as the strictly choreographed imperial adventus or other controlled appearance before an obedient audience. The planning of the Theodosian Code was contradictory and policy was confused. The codes were not complete statements of law; if guidance was needed as to the duties of a magistrate, John Lydus’ treatise On Magistracies, which may have drawn on the Digest, was a more effective handbook than the relevant sections in the first book of the Digest, and, not being a “legal text”, could freely co-exist with Justinian’s magnum opus. The retrospective invalidating of what was excluded put great discretionary power in the hands of the editors. The failure to complete the Theodosian project left all of juristic writing outside imperial control and invalidated the Code’s own claims to be a comprehensive statement of law. Attempts to impose system in order to improve “transparency” bring problems of their own. In the Roman legal tradition, past codifications or quasicodifications were sacrosanct and moulded the shape of law to come. But a system (edict plus publica iudicia), which worked for Republican Rome faltered as it faced the challenges of empire-wide implementation. The legal tradition, so often a source of strength, was also, potentially, a straitjacket. A juristic discourse based on structures, which had outlived their usefulness, itself ran the risk of becoming either irrelevant or impossibly opaque. Antiochus Chuzon and Tribonian, respectively the ministers of Theodosius and Justinian, still observed the framework created by the praetor’s edict and the time-honoured statutes of Augustus and Sulla. It must be uncertain who else did. Such were the risks confronting the authors of what Alan Watson has called, in this volume, “law in books”, which in both individual works and in codex form expressed a legal culture tenacious of its own traditions and slow to change to cope with new problems or social realities. For the historian confronting the question of “law in society”, there may be further problems to address. Oxford-trained classicists are taught to start with the sources. Here we may start with the fact that almost all juristic texts, with the notable exception of Gaius’ Institutes, are fragmentary. Moreover, the individuality of their authors has been suppressed as irrelevant to the purpose of codification. The Corpus Iuris Civilis preserves a legal tradition, but for sixthcentury purposes. It did not matter to Justinian that, in the reign of Tiberius, the upwardly mobile eques, Masurius Sabinus, client of the consul and jurist Cassius Longinus and of the Vitellii, may have been better known in his own day as an antiquarian than as a jurist;56 or that the cultural environment and 56 Cf Pliny, Historia Naturalis 7.43.135; 15.38.126; 15.40.135.

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legal agenda of, say, Pomponius (and even Gaius) at Rome in the mid-second century could have differed in crucial respects from those of Ulpian of Tyre, the exponent of Severan jurisprudence. Hidden and suppressed within the law codes of Late Antiquity is a whole chapter of Roman cultural history still largely unwritten. Texts cited 1. CTh 15.11.1 (414) We (Honorius and Theodosius II) allow everyone the right to kill lions … for the safety of our provincials necessarily shall take precedence over our amusements (i.e. organised by us). 2. CTh 15.11.2 (417) Praesidialis officii Euphratensis deploratione conperimus eos, qui transductioni ferarum a duciano officio deputantur, pro septem vel octo diebus contra legationum formam tres vel quattuor menses in Hieropolitanam urbem residentes post expensas tanti temporis etiam daveas exigere, quas nulla praeberi consuetude permittit. 3. CTh 1.1.5 Sed cum simplicius iustiusque sit praetermissis eis quas posteriores infirmant, explicari solas, quas valere convenient, hanc quidem codicem et priores diligentiorbius conpositos cognoscamus, quorum scholasticae intentioni tribuitur nosse etiam illa, quae mandata silentio in desuetudinem abierunt, pro sui tantum temporis negotiis valitura. 4. CTh 13.3.5 (cf C 10.53.7) Magistros, studiorum doctoresque excellere oportet moribus primum deinde facundia. Sed quia singulis civitatibus adesse ipse non possum, iubeo, quisque docere vult, non repente nec temere prosiliat ad hoc munus, sed iudicio ordinis probatis decretum curialium mereatur optimorum conspirante consensus. (Then clause, not in Codex Iustinianus, about referring every nomination to the emperor). 5. Sidonius, Letter 1.7.10. at ubi se furens ille quantumque caderet ignarus bis terque repetita confessione transfodit, acclamatur ab accusatoribus, conclamatur a iudicibus reum laesae maiestatis confitentem teneri. 6. Digest 48.1.1 Macer, libro primo de publicis iudiciis non omnia judicia, in quibus crimen vertiur, et publica sunt, sed ea tantum, quae ex legibus iudiciorum publicorum veniunt, ut Iulia maiestatis etc. 7. Digest 50.13.5.pr Callistratus, libro primo de cognitionibus numerus ergo cognitionum in quattuor fere genera dividi potest: aut enim de honoribus sive muneribus generendis agitatur, aut de re pecuniaria disceptatus, aut de existimatione alicuius cognoscitur, aut de capitali crimine quaeretur.

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The Digest citations from treatises on Publica Iudicia: L Volusius Maecianus (fl. mid-second century) Venuleius Claudius Saturninus (ditto). Aemilius Macer (early-mid third century) Aelius Marcianus (ditto)

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5 Diocletian and the Efficacy of Public Law R D Rees* A. INTRODUCTION Early in his speech to the Roman emperor Maximian, probably delivered in Trier in the spring of ad 289, a Gallic orator catalogued the duties of imperial office.1 Maximian had been appointed co-emperor by Diocletian four years earlier, and in keeping with the conventions of the genre of panegyrical oratory, is said to have fulfilled his responsibilities with distinction. Those responsibilities are: admittere in animum tantae rei publicae curam et totius orbis fata suscipere et oblitum quodammodo sui gentibus vivere et in tam arduo humanarum rerum stare fastigio, ex quo veluti terras omnes et maria despicias vicissimque oculis ac mente conlustres ubi sit certa serenitas, ubi dubia tempestas, qui iustitiam vestram iudices aemulentur, qui virtutis vestrae gloriam duces servent, accipere innumerabiles undique nuntios, totidem mandata dimittere, de tot urbibus et nationibus et provinciis cogitare, noctes omnes diesque perpeti sollicitudine pro omnium salute transigere to admit into your mind concern for so great a state, to assume responsibility for the destiny of the whole world, to forget yourself somehow and live for the people, to stand at the lofty pinnacle of human affairs, from where it is as if you look down on all land and sea, and you survey with eyes and mind in turn where calm is assured, where storms threaten, which judges copy your justice, which generals maintain the glory of your virtue, to receive countless messengers from everywhere, to issue as many commands, to give thought to so many cities, nations and provinces, to spend all night and day in endless concern for the wellbeing of all (Panegyrici Latini X(2) 3.3–3.4).

Catalogue was not unusual in panegyric, and an aretology – a list of virtues – was a particularly popular type. In most cases the catalogue was a rhetorical elaboration of the canon of virtues (typically numbering four), identified in * *With thanks to Paul du Plessis and delegates at the conference, especially Jill Harries and John Richardson. The chapter is dedicated to the memory of Andy Hart, with whom I enjoyed many discussions about Diocletian. 1 For full text, with introduction, translation and historical commentary see C E V Nixon and B S Rodgers, In Praise of Later Roman Emperors: The Panegyrici Latini (1994).

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ancient kingship theory and in turn appropriated by treatises offering instruction on how to compose epideictic (“showpiece”) oratory.2 One interesting feature of this anonymous orator’s version of the established form is his selection of iustitia (“justice”) for special mention. By 289 Maximian’s most notable achievements as Diocletian’s co-emperor were less to do with the law than the military, such as his overwhelming suppression of the Bagaudae in Gaul at the beginning of his reign. The mention of iustitia is worth dwelling on, therefore, although not necessarily believing, since the genre of panegyric had its own idiosyncratic economy of truth. The reference to the judges who copied imperial justice should neither be dismissed as a vacuous textbook formula nor be accepted as a reliable picture of the judiciary in the late third century. Delivered before the emperor and local Gallic dignitaries, the orator’s terms reveal what we can assume would have been considered an ideal if not a reality of contemporary law – the measure of a good judge, according to this aristocratic elite, is the extent to which he copies imperial justice. That is, a good judge narrows the gap between state and judiciary; judges are not only not independent, but their very dependence on the imperial centre is presented as a virtue.3 The speech does not expand on how imitation of imperial justice would be ensured in the first place, or how it could be supervised. Diocletian and his colleagues were famously itinerant emperors, so there would be perhaps unprecedented opportunity to enforce a policy of imitation, but of course there would be many calls on their time. A mechanism more likely to encourage imitation of imperial justice would be the rescript system.4 The rescript (and subscript) system was the means by which the emperor would reply in writing to queries relating to law from ordinary subjects. Typically, an imperial rescript was not used for adjudication or legislation, but was intended to clarify for the petitioners the detail of the existing law relating to their interests. In the case of private rescripts, a plaintiff or defendant could seek to determine their own prospects in court; via rescripts to state officials, a diffident, ignorant or incompetent judge could seek clarification from the emperor on points of law and thus better fulfil 2 E.g. ‘Cicero’ Ad Herennium 3.6.10: Quintilian, Institutio oratoria libri duodecim III.7–III.9, Menander Rhetor, Basilikos Logos 373. 3 This model of the judiciary’s imitation of imperial justice is even represented in sources hostile to Diocletian – the characterisation of the persecuting emperors as bestial by Lactantius is mirrored in his presentation of the judges who applied the persecution edicts: De Mortibus Persecutorum 16.1, 25.1, 32.4. 4 For imperial journeys, see T D Barnes, The New Empire of Diocletian and Constantine (1982); for rescripts, S Corcoran, The Empire of the Tetrarchs: Imperial Pronouncements and Government AD 284–324, 2nd edn (2000) chs 3 and 6.

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his responsibilities. It was perhaps such replication – or imitation – of the emperors’ justice that the orator and those he represented so valued. And so, it was not only the judges who win the orator’s approval – it is also a mark of distinction for the emperor to be keeping his eye on the system (conlustres). This is more than a rhetorical commonplace, for where the rhetorical treatises recommend mention of the emperor’s virtue of justice, this orator insists that the emperors were legally active (perhaps in legislation or jurisdiction, iustitiam vestram) and were concerned that their judges apply the law as it was intended. There is a sharp focus on juridical practicalities. B. THE PERSECUTION AND PRICES EDICTS Judges would be busy under Diocletian, Roman emperor from 284 to his retirement in 305. He was an innovative leader. In 285 he appointed Maximian his fellow emperor; in 293 two further men were appointed co-emperors, Galerius and Constantius, with the junior rank of Caesar to Diocletian’s and Maximian’s rank as Augustus. This imperial college, known now as the “First Tetrarchy”, came to an end in 305 when Diocletian and Maximian retired, replaced by the “Second Tetrarchy”, consisting of Galerius and Constantius, each with the rank of Augustus, and in their places as Caesars, Maximinus Daia and Severus. These were extraordinary constitutional measures. It could not have been apparent to the orator in 289 that the law too would be overhauled and radically managed in the years to come, but Diocletian’s reign proved to be a busy, even frenetic, period in Roman legal history. The most well-known examples of Diocletian’s legislative activity are the Prices and Persecution Edicts. The Edict of Maximal Prices dates to November 301.5 Very substantial reconstruction of the edict is possible by pooling nearly forty epigraphic fragments. The edict sought to impose a maximum price that could be charged or paid for any given item or service, so the text consists of a fulsome rhetorical preamble followed by lengthy lists of items and services with their maximal (not fixed) prices. The penalty for demanding or paying a price higher than the stated maximum was capital punishment. The catalogue of prices varies widely in its contents, from cheap to very expensive items.6 The Persecution Edict was in fact a series of four edicts, of increasing violence against the Church. The texts are lost, but their content can be reconstructed with considerable confidence from the narratives of Lactantius 5 Corcoran, Tetrarchs (n 4) ch 8. 6 S Lauffer, Diokletians Preisedikt (1971).

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and Eusebius, contemporary authors both. The first edict came into force on 23 February 303; its measures were various, including the destruction of church buildings and scripture, the loss of legal rights for Christians and the enslavement of Christians serving in the imperial household.7 The second edict, also dated to 303, ordered the incarceration of clergy; a third followed very soon, insisting that imprisoned clergy be forced to make pagan sacrifice; in early 304, the fourth edict commanded that everybody make pagan sacrifice, or face capital punishment.8 Both the Prices Edict and Persecution Edicts were unusually aggressive acts of public law, certainly of high profile in our sources and quite probably intended to be equally conspicuous in their original context.9 But both failed. Persecution was repealed by legislation by the co-emperors Licinius and Constantine, and even by the persecuting emperor Galerius, according to Lactantius and Eusebius again.10 Within a few years, Constantine was favouring the church with his generous patronage, and Christianity was to become the faith of the Roman Empire. And in the absence of any corroboration for Lactantius’ claim that the Prices Edict was repealed (De Mortibus Persecutorum 7.6–7.7),11 scholarship has tended to assume that it was quickly considered a dead letter.12 The question why the edicts failed has proved enduring from Lactantius’ time onwards. His answer, and that of succeeding Christian literary generations, was that the legislation failed because of the Christian theodicy at work in the universe, and because of the moral and physical courage of the martyrs 7 P Keresztes, “From the Great Persecution to the Peace of Galerius” (1983) 37 Vigiliae Christianae 379. 8 The multiplicity of measures against the Christians might be thought to expose the failure of each successive edict: cf J Harries, Law and Empire in Late Antiquity (1999). 9 It is of course possible that the Prices Edict and the Persecution Edicts figure more prominently in our perception of Roman society under Diocletian than they did in practice: from the outset, ecclesiastical history glorified the martyr victims of persecution, and exaggerated and manipulated the narrative of events for its own purposes; and in the case of the Prices Edict, the Roman epigraphic habit as a display of power may originally have been more important than the luxury of expecting the edict to be observed. In either case, there are grounds for suspecting that the survival record and later reception of edicts distort our clear appreciation of the extent and ambition of their original promulgation. 10 Eusebius, Historia Ecclesiastica 8.17, 9.9a.8; Lactantius, De Mortibus Persecutorum 34. 11 Idem cum variis iniquitatibus immensam faceret caritatem, legem pretiis rerum venalium statuere conatus est; tunc ob exigua et vilia multus sanguis effusus, nec venale quicquam metu apparebat et caritas multo deterius exarsit, donec lex necessitate ipsa post multorum exitium solveretur: “Similarly, since his various iniquities were creating a huge rise in prices, he tried to establish a law for the prices of goods for sale; then, much blood was spilled for meagre and cheap items, and nothing was put up for sale in the panic, and inflation raged more fiercely by far, until the law had to be repealed after the death of so many.” 12 Cf. the lone voice of J W Ermatinger, The Economic Reforms of Diocletian (1996).

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who preferred death over compliance. Plain examples of this can be found in the genre of martyrology, of which many examples survive from this, the “Great” Persecution. Indicative is the account of the trial and death of Julius the Veteran, dated to 304. Julius, who had served twenty-seven years as a soldier, was brought before a prefect named Maximus, charged with refusing to sacrifice (according to the terms of the fourth edict). The martyr act takes the traditional form of a transcript of the court interrogation:13 [1] praeses dixit, “quis diceris?” respondit, “Julius” praeses dixit, “quid dicis, Iuli? vera sunt haec quae dicuntur de te?” Iulius respondit, “ita; Christianus enim sum; non nego me aliud esse quam sum.” praeses dixit, “numquid ignoras praecepta regum, qui iubent immolare diis?” Iulius respondit, “non ignoro quidem; sed ego Christianus sum et hoc facere non possum quod vis. nec enim me oportet Deum meum verum et vivum oblivisici.” [2] Maximus praeses dixit, “quid enim grave est turificare et abire?” Iulius respondit, “non possum praecepta divina contemnere et infidelis apparere Deo meo. etenim in vana militia quando videbar errare, in annis XXVII numquam tamquam scelestus aut litigiosus oblatus sum iudici. septies in bello egressus sum, et post neminem retro steti nec alicuius inferior pugnavi. princeps me non vidit aliquando errare et modo putas me, qui in prioribus fidelis fueram repertus, in melioribius infidelem posse inveniri?” Maximus praeses dixit, “quam militiam gessisti?” Iulius respondit, “sub arma militiae, et ordine meo egressus veteranus. semper timens Deum qui fecit coelum et terram colui, cui etiam nunc exhibeo servitutem.” Maximus praeses dixit, “Iuli, video te sapientem virum et gravem. immola ergo diis persuasus a me ut remunerationem magnam consequaris.” Iulius respondit, “non facio quae desideras ne incurram in poenam perpetuam.” Maximus praeses dixit, “si putas esse peccatum, me assequatur. ego tibi vim facio ne videaris voluntate adquievisse. postea vero securus vadis in domum tuam, accipiens decennalium pecuniam et de cetero nemo tibi erit molestus.” Iulius respondit, “neque pecunia haec Satanae neque tua subdola haec persuasio privare me potest a lumine aeterno. Deum enim negare non possum. da itaque sententiam adversum me quasi adversus Christianum.” [3] Maximus dixit, “nisi fueris regalibus praeceptis devotus et sacrificaveris, caput tuum amputabo.” Iulius respondit, “bene cogitasti. obsecro itaque te, pie praeses, per salutem regum tuorum, ut compleas cogitationem tuam et des in me sententiam, ut perficiantur vota mea.” Maximus praeses dixit, “si non paenitueris et sacrificaveris, desiderio tuo traderis.” Iulius respondit, “si hoc meruero pati, perpetua me laus manebit.” Maximus dixit, “suadetur tibi. nam si pro patriae legibus patereris, haberes perpetuam laudem.” Iulius respondit, “pro legibus certe haec patior, sed pro divinis.” 13 L Grig, Making Martyrs in Late Antiquity (2004) ch 4.

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Maximus dixit, “quas mortuus et crucifixus vobis tradidit? vide quam stultus es, qui plus mortuum metuis quam reges qui vivunt.” Iulius respondit, “ille mortuus est pro peccatis nostris ut vitam nobis daret aeternam. Deus vero idem ipse Christianus permanebit in saecula saeculorum. quem si quis confessus fuerit, habebit vitam aeternam; qui autem negaverit, habet poenam perpetuam.” Maximus dixit. “condolens tibi do consilium ut magis sacrifices et vivas nobiscum.” Iulius respondit, “si vixero vobiscum, mors mihi erit; si in conspectu Domini mortuus fuero, in perpetuum vivo.” Maximus dixit, “audi me at sacrifice, net e, sicut promisi, occidam.” Iulius respondit, “elegi mori ad tempus ut in perpetuum vivam cum sanctis.” sic Maximus praeses dedit sententiam dicens, “Iulius, nolens praeceptis regalibus adquiescere, capitalem accipiat sententiam.” [1] The prefect said, “What is your name?” “Julius,” he replied. “What do you say, Julius? Are the reports about you true?” Julius replied, “Yes. For I am a Christian. I do not deny I am what I am.” The prefect said, “Surely you know the emperors’ edicts, which order sacrifice be made to the gods?” Julius replied, “I know them; but I am a Christian and I cannot do what you want; for I must not forget my true and living God.” [2] The prefect Maximus said, “What is serious about offering sacrificial incense and departing?” Julius replied, “I cannot despise the heavenly edicts and show myself unfaithful to my God. In my twenty-seven years of military service, in vain since I seem to have been in error, I was never brought before a judge as if I were criminal or troublesome. Seven times I went out on campaign, and I never sheltered behind anyone or was inferior to anyone in battle. My officer never saw me at fault, and do you think that when I was always found faithful in the past, I could now be found faithless to superior orders?” The prefect Maximus replied, “What was your military service?” Julius replied, “I was in the army, and after my term I campaigned as a veteran, always in fear of ‘God who made heaven and earth’ [Acts 4:24], to whom even now I dedicate my service.” The prefect Maximus said, “Julius, I see you are a wise and serious man; so be persuaded by me, sacrifice to the gods, and receive a large payment.” Julius replied, “I cannot do what you want, in case I incur everlasting punishment.” The prefect Maximus said, “If you think it is a sin, let me take the consequences. I am forcing you, so that you will not be seen to acquiesce willingly. Afterwards you can go home in peace with your ten-year bonus, and nobody will trouble you again in future.” Julius replied “Neither Satan’s money nor your underhand inducements can deprive me of eternal light. For I cannot deny God. So pass sentence against me, as against a Christian.” [3] Maximus said, “Unless you show respect to the imperial edicts and offer sacrifice, I shall have you beheaded.” Julius replied, “Good thinking! I ask you, good prefect, by the wellbeing of your

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emperors, to fulfil your plan and pass sentence on me, so that my wishes can be realised.” The prefect Maximus replied, “Unless you change your mind and sacrifice, you will be delivered to your wishes.” Julius replied, “If I deserve to suffer this, eternal praise will await me.” Maximus said, “Be persuaded. For if you suffered for the sake of your country’s laws, you would have eternal praise.” Julius replied, “I certainly suffer this for the sake of laws – heavenly laws.” Maximus said, “Laws which a man dead and crucified has given to you? See how foolish you are when you fear a dead man more than living emperors.” Julius replied, “He ‘died for our sins’ to give us eternal life. This same Christ is God who will remain for time to come. He who confesses him will have eternal life; he who denies him has everlasting punishment.” Maximus said, “Out of sorrow for you, I advise you, rather, to sacrifice and continue to live amongst us.” Julius replied, “If I live with you, I will die; if I die in sight of God, I live for ever.” Maximus said, “Listen to me and sacrifice, so that I will not have to kill you, as I threatened.” Julius replied, “I have chosen to die for now so that I shall live with the saints for ever.” Thus the prefect Maximus passed sentence, saying, “Let Julius receive capital punishment, as he is unwilling to obey the imperial edicts.”

Julius was decapitated. His behaviour in the course of his trial and subsequent execution is entirely characteristic of the genre, whose formulaic nature gives prominence to the defiant grace and strength of the victims of persecution in such a way as to generate the sense of a triumphalist Christian collective. So strong are the martyrs when faced with the state’s threats that they welcome their own deaths. In this literary record, through persecution, the state unwittingly made heroes out of its criminals. If the church accounted for the failure of the Persecution Edict by proclaiming and celebrating its own resistance, modern scholarship has tended to emphasise practical, secular shortcomings in judicial and administrative machinery. In the martyr act of Julius, the veteran himself is not the only person to resist the stipulations of the Persecution Edict. The prefect Maximus is a reluctant judge who does his best in fact to persuade Julius to comply, even to the extent of offering him a cash bribe14 – in Maximus’ mind, it seems, the clash in ideologies between the Christian faith and traditional military service to the state is acutely uncomfortable. Julius’ resistance to the offer of course underscores his determination to face his death, but at the same time it reveals the levels of co-operation that were required of 14 For a similar attempt at persuasion by the officiating judges, see Eusebius, Martyrs of Palestine, Peter; Historia Ecclesiastica 8.9.7.

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the judiciary if the legislation were to function as intended. Some judges, with their local preoccupations and anxieties, would have had little to gain in applying the full force of the edicts, and possibly much to lose; and even if an individual judge was inclined to apply the law in all its detail, he must have been confronted with problems of effective promulgation and enforcement. There is some evidence for the promulgation of the Prices and Persecution Edicts. In all its surviving examples, the Prices Edict was promulgated by inscription in stone. This suggests the measure was intended to endure and might, therefore, have implications for our appreciation of Diocletian’s strategies for combating inflation. In addition, the multiplicity of surviving fragments might suggest widespread original promulgation but, in fact, it has been persuasively argued that the fragments all originated in as few as four provinces, all in the eastern half of the Empire, although the preamble to the prices lists speaks of universal application.15 A picture of unequal distribution or application emerges for the Persecution Edicts too. Despite their exaggerated claims for universal suffering under the terms of the edicts, both Eusebius and Lactantius insist that the Christians of Gaul at least were spared the ravages of persecution.16 The reason given for this is that Gaul was under the control of Constantius, who had no wish to harm Christians, despite the Persecution Edicts. At its most innocent, these patterns of inconsistent promulgation and/or application might simply reveal serious deficiencies in the administrative apparatus of the law; more cynically, they might reveal a fundamental breakdown in the unity of government, with only certain emperors or provincial governors in certain areas bothering to try to apply the law. Whatever the cause may be, this modifies the panegyrical orator’s claims significantly, for according to this reconstruction of Diocletian’s edicts in action, a judge might choose to imitate imperial justice, but equally he might be inclined to ignore it if he felt he could get away with it. Given the practical obstacles in the way of successful, universal application of the terms of the edicts which recent research into Diocletian’s government has brought to light, this analysis of the efficacy of his public law measures considers not so much why his legal measures failed as why he thought they could possibly succeed. On the face of it, the attempt to introduce these measures characterises Diocletian as hopelessly naïve – can he be spared such a judgment? 15 M H Crawford and J Reynolds, “The publication of the Prices Edict: a new inscription from Aezani” (1975) 65 JRS 160; Prices Edict preamble 20. 16 Eusebius, Historia Ecclesiastica 8 Appendix 6; Lactantius, De Mortibus Persecutorum 15.7; R D Rees, ‘Corpus moribus congruens: Lactantius and the body of the Church’ in N Cambj, T Marasovic and J Belamaric (eds) Diocletian, Tetrarchy and Diocletian’s Palace on the 1700th Anniversary of Existence (2007) (forthcoming).

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C. DIOCLETIAN’S “LEGAL CAREER” To conjecture an answer to this, I shall set Diocletian’s “legal career” against his record of constitutional and bureaucratic change. This enterprise would not be possible without the detailed findings of two fundamental works on Tetrarchic government, The New Empire of Diocletian and Constantine by Tim Barnes and The Empire of the Tetrarchs by Simon Corcoran.17 At the same time as trying to build on that scholarship, the argument that follows might be considered a response to the challenge laid down by Alan Watson to investigate the relationship between law and the values of the society it seeks to regulate.18 The extraordinary constitutional changes brought about by Diocletian – such as his introduction of collegiate governments and the retirement from imperial office of the Augusti in 305 – were outlined above and need no commentary here other than to remark on the imagination and energy they doubtless demanded. We can only speculate on the original motivation behind these measures, as the sources rarely give up details of imperial intentions, but what might be borne in mind are details of domestic and foreign politics in relation to the constitutional timeline. A few examples: in about 287 Carausius established a separatist empire in Britain and northern Gaul, and an unsuccessful attempt to crush him two or three years later was followed in 293 by the expansion of Diocletian’s government into the “First Tetrarchy”, under which the separatist regime was finally defeated – was the expansion of government intended to better equip the res publica to confront the usurper? It is similarly inviting to posit a relationship between the creation of the “First Tetrarchy” in 293 with the Mint Reform of 294, as a result of which more mints were producing more consistent coin types across the denominations; and Lactantius himself argued for a relationship between the Caesar Galerius’ victory over the Persian king Narses in 297 and his alleged political ambition which in Lactantius’ account served only to disrupt government harmony in the succeeding years until Galerius held the highest office.19 More difficult to map onto a timeline but certainly a significant part of Diocletian’s political ambitions were his administrative reforms. Under Diocletian more provinces were created, essentially by subdividing the existing ones. Each province was led by a governor, from equestrian not senatorial 17 Barnes, The New Empire (n 4); Corcoran, Tetrarchs (n 4). 18 A Watson, “Law and Society” above, 9. 19 De Mortibus Persecutorum 9.5–10, 9.5.18.

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rank. The governor (referred to variously as praeses, rector or iudex in the sources) had juridical but not military authority – this now dwelt with the dux, as Diocletian separated military and civil command within his governing hierarchy. All provinces were now grouped under a new layer of bureaucratic control, the twelve dioceses, each led by a vicarius. The raft of changes is radical and important, but generally resistant to specific dating – scholarly support can be found both for piecemeal and wholesale implementation. The earliest attestation for a vicarius is 298, but that detail does not prove that all twelve vicarii were in office then.20 Usurpations such as that in Britain under Carausius or that in Egypt under Domitius Domitianus in 297 have their own bearing on appreciation of dating of the administrative reforms too. That is, in certain, important areas, it is possible to suggest plausible rationale to connect constitutional innovation with other areas of government. We move now to Diocletian’s “legal career” to see if similar connections can be identified which suggest the integration of law and government in these decades of immense change in Roman society. Legal constitutions were of three types – letter, edict and rescript. Classification of a constitution according to type is sometimes difficult and not always particularly revealing anyway.21 There is, however, a difference in ethos between rescripts and the other types of constitution – rescripts, as “letters back” to petitioners, were literally responsive, whereas edicts and letters might be unsolicited, and therefore proactive. And so, in general, letters and edicts were used for legislation/promulgation, and rescripts (and subscripts) for exposition or clarification on points of existing law. All three types of constitution were employed under Diocletian, and with certain reservations about the difficulties of dating certain items, the following timeline for Diocletian’s legal activity can be reconstructed.22 The Gregorian and Hermogenian Codes, named after their compilers, who were probably prominent jurists under Diocletian, consisted in the main of rescripts. c 292 c 293–305 (?)

Gregorian Code23 Edict on Judgments24

20 Both key sources, the Verona List and the Notitia Dignitatum, have difficult problems of dating. 21 J Harries, Law and Empire (n 8); Corcoran, Tetrarchs (n 4) 2–3. 22 I am concentrating here on the evidence for Diocletian’s public law. The list depends on the catalogues in Corcoran, Tetrarchs; for clarity, I have excluded many items of minor interest classified by Corcoran as letters (125–142). T Honoré, “Roman Law 200 to 400 ad. From Cosmopolis to Rechstaat?”, in S Swain and M Edwards (eds), Aspects of Late Antiquity. The Transformation from Early to Late Empire (2004) 136 divides Diocletian’s legal career into four periods. 23 Corcoran, Tetrarchs (n 4) ch 2. 24 Corcoran, Tetrarchs (n 4) 172.

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c 293–305 (?) 294 294 c 294 c 295 295 297 300 301 301 302(?) 303–304

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Edict on Appeals25 Edict on time delays in court procedure26 Edict on delegating cases27 Edict on patrimonium matris28 Hermogenian Code29 Edict de nuptiis30 Edict on tax reforms31 Various edicts on tax and tax collection32 Two or three edicts on currency reform33 Prices Edict34 Letter on the Manichaeans35 Four Persecution Edicts36

The timeline gives the first impression that Diocletian moved from a policy of law by rescript in the early 290s to law by edict thereafter, but Corcoran has argued convincingly that rescripts would have continued to have been issued throughout his reign.37 When taken with the broader political context, however, there are patterns in Diocletian’s management of the law in his society which can account for his misjudgment of the likely efficacy of the two measures for which he is most famous, the Edicts of Prices and Persecution, both dated towards the end of Diocletian’s reign. The Gregorian Code was a collection of constitutions, mainly private rescripts, from the time of Hadrian until 291; the Hermogenian Code also consisted mainly of rescripts, dating from 293–294. If both codes were imperially sponsored (if not exactly imperial projects38), the legal timeline 25 26 27 28 29 30 31 32 33 34 35 36 37 38

Corcoran, Tetrarchs (n 4) 172–173. Corcoran, Tetrarchs (n 4) 171–172. Corcoran, Tetrarchs (n 4) 172. Corcoran, Tetrarchs (n 4) 173. Corcoran, Tetrarchs (n 4) ch 2. Corcoran, Tetrarchs (n 4) 173–174. Corcoran, Tetrarchs (n 4) 174–175. Corcoran, Tetrarchs (n 4) 176–177. Corcoran, Tetrarchs (n 4) 177–178. Corcoran, Tetrarchs (n 4) 178–179 and ch. 8. Corcoran, Tetrarchs (n 4) 135–136. Keresztes, “Peace of Galerius” (n 7); Corcoran, Tetrarchs (n 4) 179–182. Corcoran, Tetrarchs (n 4) esp 293–294. The question of imperial involvement in the codes’ origins is notoriously moot, e.g., W Turpin, “The law codes and late Roman law” (1985) 32 RIDA 339; W Turpin, “The purpose of the Roman law codes” (1987) 104 ZSS (rA) 620; Harries, Law and Empire; Corcoran, Tetrarchs (n 4) 293; S Corcoran, “The publication of law in the era of the Tetrarchs – Diocletian, Galerius, Gregorius, Hermogenian” in A Demandt et al (eds), Diokletian und die Tetrarchie (2004) 56, 65.

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makes it reasonable to suggest that by 294 the principle of codification, as realised in the Gregorian Code, was considered at least a qualified success, deserving of a further publication, this time by Hermogenian. Significantly too, in time, both codes were expanded or republished with later material.39 It is tempting to see this codification and later re-publication of legal constitutions as responses to perceived needs, rather than arbitrary acts or the fulfilment of a purely academic interest on the part of Gregorius and Hermogenian. The political context outlined above provides a possible lead. The acts of codification which served to centralise and systematise existing law broadly speaking coincided with the expansion of Diocletian’s government into tetrarchy and the fundamental overhaul of provincial organisation. That is, just at the time the provincial judiciary was being expanded (perhaps even doubled) by the appointment of more governors, in their codes Gregorius and Hermogenian published collections which could function as useful and accessible works of reference for this body of new iudices.40 The later additions to the codes might have been called for by the opportunity to update which would have been created by the appointment of new iudices or simply by the significance of the new items for inclusion; they certainly suggest an appreciative readership. However, even if the codes were published to fulfil the need created by the provincial reforms, a perhaps unintended effect of codification would have been a modification in the ethos of the now accumulated rescripts.41 Original rescripts were responsive, intended as specific guidance on particular issues; but codification literally inscribed law and thus altered the impact it had on the population, changing it from a system of “petition and response”, where centre reacts to periphery, to a more assertive system, where centre dictates. Codification therefore closed the gap between rescript and edict as legal procedures, especially in the context of a rapidly expanding judiciary. Ultimately, although rescripts and edicts are different in ethos, codes and edicts have much in common – both are applied via iudices, both are assertive, proactive and systematising. The codification of the early 290s can therefore be seen as complementary to the edicts of the time, which, significantly, were all principally concerned with judicial procedure – judgment, appeals, delay and delegation. In edicts and codification of rescripts, in the early 290s the policy of centralising law was being pursued on more than one front. 39 Corcoran, Tetrarchs (n 4) 37; Corcoran, “Publication of law” (n 38) 63. 40 Turpin, “Purpose of the Roman law codes” (n 38) 628; see also S Corcoran ‘The Tetrarchy: policy and image as reflected in Imperial pronouncements’, in D Boschung and W Eck (eds) Die Tetrarchie (2006) 31–61. 41 Cf Watson, “Law and Society” (n 14), 29–31.

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According to the timeline above, Diocletian’s legal activity from 297 until his retirement in 305 was rather different. Legislation, generally via edicts, was now not aimed at judicial procedure but the fisc, the economy and religion. Law was now much more interventionist, trying to regulate the daily routines of all individuals rather than the working practices of legal professionals. An illuminating example of this tendency is the measure against the Manichaeans, often cited now as a precursor to the Great Persecution. The text survives in the Mosaicarum et Romanarum legum Collatio (15.3) and is addressed to Julian the Proconsul of Africa. The date is of some controversy, with 31 March 287, 297, 302 or 307 possible – Barnes and Corcoran favour 302.42 otia maxima interdum homines in communione condicionis naturae humanae modum excedere hortantur et quaedam genera inanissima ac turpissima doctrinae superstitionis inducere suadent, ut sui erroris arbitrio pertrahere et alios multos videantur, Iuliane carissime. [2] sed dii immortales providentia sua ordinare et disponere dignati sunt, quae bona et vera sunt ut multorum et bonorum et egregiorum virorum et sapientissimorum consilio et tractatu inlibata probarentur et statuerentur, quibus nec obviam ire nec resistere fas est, neque reprehendi a nova vetus religio deberet. maximi enim criminis est retractare quae semel ab antiquis statuta et definita suum statum et cursum tenent ac possident. [3] unde pertinaciam pravae mentis nequissimorum hominum punire ingens nobis studium est : hi enim, qui novellas et inauditas sectas veterioribus religionibus obponunt, ut pro arbitrio suo pravo excludant quae divinitus concessa sunt quondam nobis. [4] de quibus sollertia tua serenitati nostrae retulit, Manichaei, adivimus eos nuperrime veluti nova et inopinata prodigia in hunc mundum de Persica adversaria nobis gente progressa vel orta esse et multa facinora ibi committere, populos namque quietos perturbare nec non et civitatibus maxima detrimenta inserere : et verendum est, ne forte, ut fieri adsolet, accedenti tempore conentur per execrandas consuetudines et scaevas leges Persarum innocentioris naturae homines, Romanam gentem modestam atque tranquillam et universum orbem nostrum veluti venenis de suis malivolis inficere. [5] et quia omnia, quae pandit prudentia tua in relatione religionis illorum, genera maleficiorum statutis evidentissime sunt exquisita et inventa commenta, ideo aerumnas atque poenas debitas et condignas illis statuimus. [6] iubemus namque auctores quidem ac principes una cum abominandis scripturis eorum severiori poenae subici, ita ut flammeis ignibus exurantur : consentaneos vero usque adeo contentiosos capite puniri praecipimus, et eorum bona fisco nostro vindicari sancimus. [7] si qui sane etiam honorati aut cuiuslibet dignitatis vel maiores personae ad adhuc inauditam et turpem atque per omnia infamem sectam, vel ad doctrinam Persarum se transtulerint, eorum patrimonia fisco nostro adsociari facies, ipsos quoque Phaenensibus vel Proconnensibus metallis dari. [8] ut igitur stirpitus amputari lues haec nequitiae de saeculo beatissimo nostro possit, devotio tua iussis ac statutis tranquillitatis nostrae maturet obsecundare.

42 For the various possibilities, see Corcoran, Tetrarchs (n 4) 135.

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[1] Excessive leisure sometimes provokes ill-suited people to cross natural limits and encourages them to introduce false and outrageous forms of superstitious doctrine, so that many others are persuaded to recognise the authority of their mistaken beliefs, dearest Julian. [2] In their foresight, the immortal gods have deigned to insist that the principles of virtue and truth be acknowledged and confirmed by the counsel and thoughts of many good, great and wise men. It is wrong to oppose or resist these principles; and no new belief should criticise the religion of old. It is highly criminal to discuss doctrines established and defined by our ancestors, which still have their acknowledged place and role. [3] For this reason we are absolutely determined to punish the stubborn madness of these worthless people. [4] We have heard all those matters relating to the Manichaeans which in your wisdom you reported to us in our serenity – that against the older beliefs they establish new and unknown sects, wickedly intending to overthrow the doctrines confirmed for us long ago by divine favour; that recently they have advanced or emerged from their native homes in Persia – an enemy of ours – like strange and monstrous portents, and have settled in this part of the world, where they commit many evil acts, upsetting the peace of the people and seriously damaging towns. There is a danger that in time they will try, as usual, to contaminate with the Persians’ criminal habits and insane laws the innocent, orderly and peaceful Roman people, and the whole empire as well, as if with the poison of an evil snake. [5] Because everything you in your prudence explained in your report about their religion demonstrates that what our laws see as their crimes are born of a wild and false imagination, we have set deserved and suitable penalties for these people. [6] We command that the authors and leaders of these sects receive severe punishment and be burnt in the flames with their detestable books. We order that if they prove defiant, their followers suffer capital punishment, and their possessions pass to the imperial treasury. [7] If those people who have crossed to that unknown, outrageous and disreputable belief, or to the Persian’s belief, are in public office or are of any rank or higher social status, you must confiscate their estates and send the offenders to the Phaeno [quarry] or the Proconnesus mines. [8] In your devotion, hurry to execute our orders and commands so that this iniquitous disease is completely cleansed from our most happy age.

We do not have evidence for a Manichaean response comparable to the peaceful resistance the Christian literary record claims its faithful offered to the Great Persecution. The series of edicts against the Church constituted a trajectory of increasing violence and intervention, culminating with the prescription of the death sentence against all who refused to perform pagan sacrifice. The measure against the Manichaeans is severe from the outset, with capital punishment immediately threatened; yet it is not clear what would constitute defiance (contentiosos) among the ordinary followers. With vague reference to doctrine and subversive behaviour, the measure seems to criminalise a general lifestyle. In its target, ambition, and means of application, the law is here being used quite differently from the more sober, rather “professional” policies of the early 290s, aimed at those who already had an interest in the law in some degree.

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In its wordy style and righteous tone the text outlawing the Manichaeans reads much like the moralising rhetoric of the preamble to the Prices Edict. It opens with a highly judgmental sententia to gain moral authority, itself to be confirmed by reference to divine will, before the subject of the constitution is first mentioned – the practices of the Manichaeans. The details of the legislation this text realises feature thereafter (statuimus, iubemus, praecipimus, sancimus). There is no reason to think that this legislation was not applied in the eastern and African provinces where Manichaeans were but, in the context of Diocletian’s “legal career”, what is notable about this aggressive legislation is that it is technically a rescript, and not an edict. Chapters 4 and 5 make it clear that the emperors here were responding to a petition from the governor; it is therefore almost axiomatic that the legislation would have been applied by the governor because the text is precisely the go-ahead he had sought in his initial petition. We could even go so far as to be confident that under Julian and any other likeminded governors themselves keen to rid their areas of jurisdiction of Manichaeans, the policy of persecution would have been energetically implemented. If the governor was determined to apply the law, as Julian seems to have been when he first petitioned the emperors for a ruling, even acts of public law of considerable ambition could achieve their aims. D. CONCLUSIONS Although the rescript against the Manichaeans has much in common in tone, intended reach and severity for non-compliance with Diocletian’s Prices and Persecution Edicts, the fundamental difference was that the edicts qua edicts were not solicited. By the time these more interventionist edicts were under consideration or even in place, Diocletian may have been led into assuming that because the codification of rescripts had gone well in the 290s (as evidenced by the codes’ republication and expansion) and because the more assertive measure against the Manichaeans had been prosecuted with some energy, he was at liberty to legislate with unprecedented determination on further matters of public law. To his eyes, the newly expanded legal machinery would have appeared to be functioning smoothly, controlled from the centre and obediently applied on the ground. This schema makes sense of the question of why Diocletian waited so long after his accession before embarking on the Prices and Persecution Edicts – Corcoran has recently argued that for his formulation of the Edicts, Diocletian depended on the support of his Caesar Galerius.43 The proposal is 43 Corcoran “Publication of Law” (n 38) 66–70.

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based upon the dating and distribution of epigraphic copies of certain Tetrarchic edicts, and its tenor is corroborated by the antipathy towards Galerius that is so prominent in Lactantius’ narrative.44 At the same time, before he could proceed with his legislation on prices and against Christians with any realistic hope of success, perhaps Diocletian felt there was necessary legal groundwork to be completed, in the expansion of the judiciary, codification of constitutions and amendment of certain legal procedures. This would all take time and collaboration. When Diocletian thought, rightly, that the law had been generally interventionist from the 290s onwards, he underestimated the extent to which the interventions had to be welcome to work. What he failed to appreciate is that the original motivation for legislation is a decent index of the likely success of its application. Codification of law in the 290s was a decisively proactive project, but it consisted mainly in a collection of rescripts – that is, it was founded on a “petition and response” model. If codification succeeded, it was probably because it dealt in material which had stemmed from petitioners, such as the governors themselves or their predecessors, so the project was likely to meet their concerns. It was a similar case with the measure against the Manichaeans, where the individual charged to apply the law was the man who had petitioned for it, Julian. But the edictal system was qualitatively different in that it provided for legislation inspired from the centre. No doubt some zealous governors welcomed the Prices and Persecution Edicts, but many or most would simply not have been interested – they had not petitioned for a ruling, they were not waiting for a rescript, and they were not, in fact, looking to the law to regulate these aspects of their lives. The prefect Maximus is one such reluctant judge when he seems to condemn the veteran Julius to death under the duress of professional obligation rather than out of a deep-seated sense of justice. The martyr acts, Lactantius and Eusebius provide a legacy of peaceful resistance to the Persecution Edicts, but this dubious Christian record aside, there is nothing in the later fourth century epitomisers or breviarists to suggest that the Prices or Persecution Edicts had any serious impact. Diocletian was an emperor of vision, but, misled by the success of the projects of public law in the 290s which gave the impression that imperial justice was being imitated by judges, he failed to realise that the edicts of 301 and 303 were not sufficiently in the interests of a sufficient number of people to work, subjects and judges alike. According to this argument we should not see Diocletian 44 E.g. De Mortibus Persecutorum 31.1.

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the way the Christians did, as a fiery-tempered, foolish and irrational despot. Rather, based on his experience before then, in the last years of his reign he believed he had the power to use unsolicited law to regulate both economic and religious activity, to dictate to whom sacrifice should be made or how much could be spent on a loaf of bread. In this he was wrong, but his mistake is understandable.

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6 The Dutiful Legatee: Pliny, Letters V.1 A D E Lewis A. INTRODUCTION Around ad 100, on the death of Asudius Curianus, Pliny received a legacy, worth unknown, in Curianus’ will. There was a history. Some three years previously Curianus had been disinherited by his mother’s will which distributed her fortune between a number of distinguished Romans, including Pliny himself. Curianus was a wealthy man in his own right and had no children. Clearly mortified by his mother’s actions Curianus asked Pliny to give him his share, promising to return its capital value in due course. Pliny declined to do so but rather offered to refuse his share, to Curianus’ eventual benefit, if Curianus could persuade him that he had been improperly disinherited. Curianus then asked Pliny to look into the matter formally, which Pliny agreed to do, indicating that if he found that Curianus’ mother was justified he would have no hesitation in so finding. Sitting in his own house with two other friends Pliny heard argument from Curianus, himself formally presenting the case on the other side. After a period of discussion judgment was given in favour of Curianus’ mother having had good reason to disinherit her son. Despite this setback Curianus proceeded to sue the other beneficiaries of his mother’s estate in the centumviral court. They, being anxious to compromise the case, it being not unusual for the emperor Domitian to intervene in such matters to general discomfiture, approached Pliny to act as mediator. This he did, meeting Curianus in the temple of the goddess of Concord. Pliny suggested that Asudius be prepared to take a quarter of the share of each of the heirs he was suing. Although it was too late to sue Pliny, two years having then elapsed since the distribution of the estate, Pliny offered to contribute a quarter from his share also: offero pro mea parte tantumdem. Obviously Pliny’s intervention was successful with the result that Curianus gained by agreement as much as he might otherwise have expected to obtain as an heir burdened with legacies and this seems to have been sufficient to restore to him the reputation his mother’s action had threatened to deprive 125

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him of. In token of his satisfaction with the outcome Curianus subsequently left Pliny the moderate legacy on his death with which the story began. Pliny’s letter is designed to show off his virtues, not to stress the legal questions. The short account is, however, packed with legal incidents, not all straightforward. The technique which John Crook espouses in his Law and Life of Rome is not primarily to determine knotty questions of law by reference to its practice but rather to explore the practical context of the working of the law, the Sitz im Leben in the characteristic phrase borrowed from the world of German biblical scholarship. If in the process it is shown that some of the concerns of the legal specialists are misplaced then so much the better social history, but this is not the main aim. I will therefore proceed serially through the legal issues raised, both relatively trivial and more troublesome, though paying particular regard to those matters concerning the law of inheritance. B. PLINY HAS COME IN FOR A LEGACY Under the ius civile an inheritance was either testate or intestate; one could not be by deliberate choice partly one and partly the other. (I set aside here the effects of fideicommissa which are not in issue.) A testate inheritance, one made by will by a competent testator, had to create one or more heirs who would inherit the whole estate. Thereafter the will could proceed to grant specific interests, in actual objects or in proportions of the whole value of the estate, to anyone else (technically it was also possible to grant a legacy to an heir). The legacies were paid out of the value of the estate belonging to the heirs. It is not clear, nor relevant, who were Curianus’ heirs. Whoever they were they were required by the will to pay over to Pliny the modest legacy which he was granted. C. CURIANUS’ MOTHER’S WILL Beginning students in Roman law tend to be surprised to discover that Roman women, especially married Roman women, could make wills. It is probable that Pomponia Galla was a widow. Pliny lets slip that Curianus himself was a wealthy man which rather implies that he was independent of his father’s patria potestas, paternal power. All Romans born of valid civil law marriages fell under their father’s paternal power the main effect of which was to deprive them of formal independent legal status. Unusual circumstances apart a Roman escaped from this position into a status of independence, sui iuris,

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on his (or her) father’s death. Again Pomponia Galla was probably married to Curianus’ father by liberum matrimonium or free marriage of consent which came to predominate in even the highest Roman social circles during the last century of the Republic. In such a marriage (in contrast to the older manus marriage) both parties retained their pre-nuptial status: if Pomponia Galla had a fortune on her own account she was not the less able to deal or dispose of it by virtue of being a married woman. However, women did labour under some restrictions at this date. So long as their father was alive they no less than their brothers were in patria potestas and were as such unable to own property. Once they escaped from this status on their father’s death, however, they came under the formal responsibility of a guardian. Unlike their male counterparts they could not deal with their own property without the consent of their guardian. The origin of this limitation lies in the fact that once upon a time guardians were drawn from amongst the woman’s nearest male relatives (typically an uncle). On intestacy this person would be the woman’s nearest heir and his control of her affairs (among other things) could prevent her making a will. By ad 100 this restriction on women’s activities was perceived to be potentially irksome. Steps could be taken by a father to ensure that his daughters had a choice of guardian on his death. Further, women could apply to the praetor for a new guardian in place of any but a close relative. From the time of Augustus women who produced three children (by three separate births) were relieved from the subsequent tutelage by the ius trium liberorum. All these factors mitigated but did not remove altogether by Pliny’s time the inconveniences of female tutelage. Women could make wills with the consent of their guardian but had first to undergo a formal ceremony detaching themselves from their birth family. This formality, which was not abolished until the time of Hadrian, was necessary to ensure that no near male relative could come forward to claim that he was entitled to the estate on intestacy because his rights as natural guardian had been overlooked. We must suppose that Pomponia Galla underwent such a procedure which required her to be sold (by herself) to a willing collaborator who would then release her from technical servitude into a status independent of her former family. Released from the tyranny of family connections she was now free to leave her wealth as she chose; but since none was now entitled to an intestate claim the need to ensure that the will made was valid and applicable became all the more important. The Roman will in the classical period was one of a number of legal institutions which depended for its efficacy upon the formal legal act known as mancipatio. Originally a form of completed sale transaction mancipatio

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engaged the “seller” and the “buyer” in a formal exchange in which the object to be sold was taken by the “buyer” who declared that it had become his as a result of the “sale”. The price was represented by a lump of uncoined bronze placed upon a bronze scale and held symbolically by a scale-holder. In addition the act required the presence of five adult male witnesses. It was mancipatio which was utilised in order to sell a woman out of her family in order to enable her to make her will: in this case the “buyer” made a formal statement to the effect that this is why the act was being performed which may, amongst other things, have had the effect of preventing his exploiting the situation to his own advantage.1 He became what we would call in English a trustee. In order to effect a will the mancipatio ceremony was used formally to transfer the seller and will-maker’s property to a third party, not a beneficiary under the will. He made a statement to the effect that the transfer was being performed testamenti causa. As before this seems to have limited the recipient’s capacity to exploit the situation to his own advantage. The sole effect of the transaction in Pliny’s day was to make the will now valid (though not of course effective until after the testator’s decease). It might be assumed that the legal dodge worked because the third party “buyer” was now under an obligation (we would call him a trustee) to allow the testator to enjoy his property as before until his death and then to arrange for the will to take effect. But the third party does not develop into a sort of executor. Rather he disappears altogether so that it cannot be argued, say, that if he himself predeceases the testator the testament itself is at risk. Mancipatio’s basic use in Pliny’s day was as a means of conveyance. Certain valuable objects, including land and slaves, could only be transferred to another if this (or other equally formal act) was performed. Women could dispose of their ordinary property without difficulty but they needed the formal assistance of their guardian to effect a mancipatio. The rationale seems to have been to limit the damage to the inheritance to presumptively valuable objects. (But if so the presumptions are those of a very basic agricultural economy: in Pliny’s day a woman might own many more valuable and easily disposable objects than land or slaves.) Assuming then that she did not have the right of three children Pomponia Galla would require the services of a guardian in order to make her will. In her will Pomponia disinherited her son. Children had a vested right to inherit from their fathers (at least so long as they were in their father’s potestas). If there were no will then sons and daughters equally had a first 1 See Gai Inst 1.114a-1.115.

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claim upon the inheritance. The very name used to describe their status – sui heredes – reflects their already vested claim, they are “their own heirs”. Sons’ rights were even more firmly vested than daughters’. A father who wished to make a will disinheriting a son would need to ensure that he included a specific clause to this effect in the will – and paid attention to the slightly different requirements of the civil law and of the praetor’s law in this connection. A son who was merely overlooked in the distribution of the estate could take legal proceedings which might at worst have the effect of overturning the will altogether and provoking an intestacy or at least allowing him in for a share together with those properly instituted heirs. A child whose father had taken all appropriate steps to effect a disinherison might still try to recover the position. A special procedure, a complaint of an unduteous will, was available to complain of an unjust disinheriting. Amongst other peculiarities the procedure was only available in Pliny’s time in the centumviral court. As a practitioner in the court Pliny can be assumed to have had some experience and detailed knowledge of the working of this remedy.2 Sadly we are less well informed than he as the compilers of the Digest have removed most references to the institution.3 But children had no civil law rights of inheritance from their mothers. The explanation is twofold. In the early Republic when marriage implied subordination of women to their husbands a mother who predeceased her husband would have nothing of her own to leave. Were she to survive her husband she shared with her children in the distribution of an intestate estate and might be thought to owe them little out of her share. With the rise of free marriage women were free, at least after their father’s death, to accumulate on their own account. But at civil law such a woman was not related to her children. She remained in her birth family on marriage and her children became, as a corollary of paternal subordination, members of her husband’s family. On such a woman’s death, if she made no will, her civil law heirs were her father’s family – typically her paternal uncles and aunts or their descendants. If she chose to make a will she had no obligation to consider their interests – indeed they would no longer have any interests because the self-sale which the woman had to undergo to qualify herself to make a will removed her from her birth family so that she no longer had any relations. There was eventually legislation which mitigated this anomaly but not before the beginning of the second century ad.4 2 Pliny reports a second case in Letters VI.33 to which reference is made below. 3 But see D 5.2.19 (Paul, Questions 2) and D 5.2.8.8 (Ulpian, Edict 14). 4 The senatus consultum Orphitianum for which see D 38.17 and J Inst 3.4.

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Curianus could not, therefore, take proceedings in the praetor’s court in an attempt to upset his mother’s will. But, as appears from this very story, it was still open to him to take proceedings in the centumviral court in a complaint of an unduteous will. D. CURIANUS’ EMBARRASSMENT Curianus’ first concern seems to have been for his social standing rather than his bank balance. As we shall see there were reasons for not, if it were avoidable, proceeding by way of complaint of an unduteous will. Curianus approached Pliny, as one of the appointed heirs, and asked him if he would publicly and voluntarily make him a present of his share. To follow the contrasts proposed later in this passage it is important to bear in mind the manner of receiving an inheritance. A stranger heir, that is one other than an immediate member of the deceased’s own family, was not compelled to receive what he was made heir of. In order to become heir one had to accept: there were various ways of doing this and it was traditional to provide that such heirs should indicate their willingness to accept by a formal acceptance (cretio) within a certain time or be disinherited in favour of others.5 Apart from other considerations an heir in Roman law was in principle personally liable for debts of the estate and might well wish to decline a damnosa hereditas in which the burdens outweighed the assets. This particular consideration did not apply in Curianus’ case but the fact that he had been disinherited and might eventually seek redress from the instituted heirs in court might well make such an heir consider whether it was worth the trouble. Pliny therefore had to take some step before becoming heir. Curianus’ suggestion was that he should indeed accept his share of the inheritance but then publicly make a gift of it to Curianus. The idea was that, if someone as notably punctilious as Pliny were minded to overturn the intentions of Curianus’ mother’s will this would both induce the other heirs to act in similar fashion or convict them of unscrupulousness. The term used here – praeiudicio – rather implies that Curianus hoped to gain in this informal way what he might otherwise get by going to court. Either way Curianus would be cleared publicly of the imputation that he had done something which justified his mother’s conduct. As an inducement to act in this way Curianus offered to make good the amount of Pliny’s inheritance by paying it to him at a subsequent date. Pliny 5 For a Plinian example see Pliny, Epistulae 2.4.

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declined to act in the way proposed and on the ground that he was not prepared to do one thing in public – give up the inheritance – and another in private – receive the amount of the forgone inheritance again from Curianus. In any case it would be improper, thought Pliny, to make a donation to an already rich and childless person (et locupleti et orbo). The orbi or childless were, like the unmarried, limited under legislation of Augustus in what they could receive in the will of someone to whom they were not related. This would not have affected Curianus’ ability to inherit in full from his mother. Pliny’s point seems to be that, as Curianus would be restricted in what he could receive by way of inheritance from Pliny to whom he was not related, it would not be proper for him to receive what was in effect an inheritance at Pliny’s hands even in Pliny’s lifetime. We should just note in passing that, since all this was designed to redound to Pliny’s credit as a morally upright person, we should take his own account of it with as large a quantity of salt as his reputation is thought to deserve. E. PLINY’S SCHEME Pliny had a better idea. He would decline the inheritance altogether. Admittedly if he were the only one to act in this way the effect would have been merely to increase the shares of his fellow heirs.6 But, as before, the implication is that if one of Pliny’s rectitude declined then all would have to follow his example. If all the instituted heirs declined the inheritance then the will would fail. The implication then is that Curianus would benefit: profuturum si cessissem. As we have seen children had no civil law rights of inheritance from their mothers married in free marriage. In any case, in order to make a will, Pomponia had to undergo the self-sale process which amounted to capitis deminutio and broke all existing family ties. If she then failed to make a will or the will itself failed there was no one eligible at civil law to take the estate on intestacy. However, the praetorian scheme of succession, effected by bonorum possessio enabling those benefited by it to obtain possession and then ownership by usucapio, offered the succession to cognates, relatives, of the deceased. The relationship of cognate, not being a civil law notion, was unaffected by the deceased’s having undergone capitis diminutio. If then Pliny’s act caused all those instituted heir to decline, promoting an intestacy, 6 Admittedly this is a guess and would depend upon the exact terms of Pomponia Galla’s will. She could have arranged matters so that on Pliny’s failing to take his share it went to a substitute heir. But if no such arrangement were made then Pliny’s share would simply fall in to be divided amongst his fellow heirs.

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Curianus would be entitled to seek possession of the inheritance unde cognati (the phrase, expanded, implies “in that part of the edict on grants of bonorum possessio where the relatives are called”7). But there was a condition attached to Pliny’s offer. He would only agree to act in this way if it could be shown to his satisfaction that Curianus’ mother had been wrong to disinherit him. How to test this question? Curianus asked Pliny to hold an enquiry and this, after some hesitation, he agreed to do. F. THE HEARING BEFORE PLINY The holding in the private family context of a formal judicial hearing is a wellattested feature of Roman social life from the Republic through to the early Empire. Pliny is not therefore acting unusually in summoning his friends Corellius and Favorinus to act with him.8 They sit formally, with Pliny in the middle, as would judges in a court. Curianus then presented his case. As there was no one to speak on the other side, Pliny himself presented the case for the mother’s actions. It is not clear from the account whether he did so from his sitting position “on the bench” or whether, as seems more fitting, he rose to do so.9 The judges then withdraw and return to pronounce their decision: Curianus’ mother had a just cause to disinherit him. The arguments which Curianus brought before Pliny’s tribunal must have been designed to show that his mother had had no good reason to disinherit him and that therefore she had acted unjustly in making a will which failed to acknowledge her duties to him as her son. This was the gist of any querela inofficiosi testamenti, the claim of an unduteous will. Although, as we have seen, Curianus had no claim in civil law before the praetor’s court in respect of his disinherison in his mother’s will this course was still open to him. He had failed to convince Pliny and his fellow assessors but perhaps he might do better in the public arena where his arguments could be presented for him by an advocate and where perhaps the uncertainties incident to any public legal process might move in his favour.

7 See D 38.6.2 if (Julian, Digest 27). 8 Both of Pliny’s fellow judges, perhaps better assessors, would have had judicial experience in their careers in administration. Corellius Rufus, cos. ca 78, had been legate in Germania Superiora and under Nerva served on a land commission (Pliny, Epistulae, 7.31). Sextus Julius Frontinus, cos I 73 or 74, cos II 98, cos III 100, was governor of Britain in the mid-70s and in charge of the water supply in Rome in the 90s. 9 Pliny acts “neque enim aderat alius”: Epistulae, 5.1.

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G. CURIANUS’ QUERELA INOFFICIOSI TESTAMENTI Pliny tells us that, failing in his efforts to persuade Pliny to act in his favour informally, Curianus brought an action in the centumviral court against the other heirs. Why Pliny himself was not joined in the action is not clear, though it is possible that Pliny’s own account has disjoined the various elements in the story and that Curianus’ dealings with him were part of a move to put pressure upon his fellow heirs after the action in the centumviral court had already begun. On this view Curianus reckoned he had a better chance of persuading Pliny to act informally than of being successful against him in court. We learn later that it was now too late for proceedings to be begun against Pliny himself. The form of action Curianus brought is not specified but from the context, and in particular the terms of the eventual compromise reached in the case, it seems certain that it was the claim of an unduteous will. As we have seen this is a form of redress brought by one who has been properly, that is effectively, disinherited on the basis that the testator was acting unjustly in excluding him. In Curianus’ case, because he has no civil law claim on his mother’s estate, the effective disinherison consists simply in his being left out of the list of heirs. It should be a surprise to learn that such an action could be brought at all. In a case against a father the logic seems to run as follows: a child should either be made heir or properly disinherited. If he (or she) is not properly disinherited then he can sue for a share in the praetor’s court on the grounds of lack of proper process. Even if properly, effectively, disinherited a child may seek to question the propriety of the exclusion by raising it in the centumviral court. But all seems to rest upon the initial premise that the child is prima facie entitled to inherit. Only if the father follows the proper procedure and has a good reason can the child lose out. But in the case of inheritance from a mother there is no entitlement, either at civil law, nor, more significantly, at praetorian law, before the statutory reform of the senatus consultum Orphitianum of ad 128. A mother can choose whether or not to institute her child an heir: and if she chooses not to make a will the child has, before that date, no right of intestate succession to her. It is odd that, if she chooses to make a will she can be required to account for not instituting the child. Nevertheless this is the case and there is plenty of juristic endorsement: for example D 5.2.5pr.: For those who are not descended in the male line also have the power to bring an action, since they do so in respect of a mother’s will and are constantly accustomed to win.10 10 Marcellus, libro tertio digestorum: “Nam et his, qui non ex masculis descendunt, facultas est agendi, cum et de matris testamento agant et optinere adsidue soleant.”

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Indeed the number of cases of unduteous will claims against mothers in the Digest title 5.2 de inofficioso testamento indicates that it was perhaps more frequently used to get around this difficulty than it was used for the purpose of undoing the effect of categoric, i.e. legally required, disinherisons. Most of the citations are to juristic discussion after the reforms of ad 128 but there are sufficient references to the former state of affairs, for example to a decree of the deified Hadrian in Paul’s discussion in D 5.2.28, to indicate that the general principle was not changed. There is here perhaps an issue which has been overlooked. The arguments which by the end of the second century gave rise to the granting of automatic rights of intestate succession to children from their mother would seem to have been well established and understood a century before. Lacking any direct method of implementing this sort of claim, children resorted to the querela. Ulpian, writing indeed after the statutory change, notes that the querela is only worth bringing close to the direct line: cognates beyond a brother are wasting their money as they will not succeed: D 5.2.1 It should be noted that complaints against the undutiful are common; for it is possible for everyone to argue want of duty, parents as well as children. For one’s cognates beyond the degree of brother would do better not to trouble themselves with useless expense since they are not in a position to succeed.11

But before ad 128 the only legal claim between a mother and her children on intestacy was in the praetorian category unde cognati. H. FINAL SETTLEMENT Once brought to court things begin to move in Curianus’ favour. In the first place the action is brought during Domitian’s reign and that unstable character was not averse to interfering irrationally in such matters.12 Pliny reports that his fellow heirs were concerned that they might end up being defendants in a criminal case. So before the hearing of the suit they asked Pliny to act as a mediator to effect a compromise. Pliny and Curianus met in the Temple of Concord just off the Forum. Although so seemingly fitting a location for the negotiation of compromises in law suits this is seemingly the only reference which we have to its use for such 11 Ulpian, libro quarto decimo ad edictum: “Sciendum est frequens esse inofficiosi querellas: omnibus enim tam parentibus quam liberis de inofficioso licet disputare. cognati enim proprii qui sunt ultra fratrem melius facerent, si se sumptibus inanibus non vexarent, cum optinere spem non haberent.” 12 Suetonius notes (Domitianus 8.1) that Domitian annulled judgments of the centumviral court.

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a purpose. To understand the terms of the negotiation we must first consider what might have happened if the suit had come to court. As noted above we know less about the procedures in the querela and indeed about the centumviral court procedures in general than we should like. The jurisdiction of the court survived into the third century, the jurist Paul wrote a book de centumviralibus iudiciis and it is seemingly referred to in a text of Scaevola (D 5.2.13).13 Even after the disappearance of the court the querela seems to have survived as a procedure elsewhere, presumably in a cognitio process, and the proceedings were sufficiently important to attract a whole title of the Digest in the section devoted to individual actions. Pliny’s treatment of the action here and in Letter VI.33 are both of some importance in enabling us to gather what went on in earlier times. In Letter VI.33 Pliny recounts a case where he appeared for the plaintiff in a querela. (It appears to be a covering letter to a copy of his speech which has not survived, much to our loss.) His client, a woman, had been disinherited by her father on his marrying for a second time. There were 180 judges in the centumviral court, all four panels sitting together and in the result two panels voted for and two against. This simultaneous sitting of all four panels was unusual and seemingly reflected the high social status of these parties. For reasons which are not at all clear this division of votes resulted in Pliny’s client winning against her stepmother and another heir. The only useful hint he gives about his winning argument is that it was largely in a high rhetorical style but at times it was necessary to introduce detailed calculations, even a board for displaying calculations, as though he had been presenting a case in a private law suit (before a single judge). One wonders how all 180 got to see the calculations! The implication is that, as in criminal cases before the jury courts, the impact of an orator’s speech is more important than the detail of the legal argument. It is perhaps not surprising therefore, quite apart from the paucity of our surviving evidence, that it is difficult to establish the precise criteria required in the centumviral court for establishing that a disinherison was just. We are twice told by the later jurists that the querela proceeds on the basis that the balance of the testator’s mind was disturbed. As Marcian puts it in his Institutes (D 5.2.3): 13 In the Digest title 5.2 a sole book by Paul de inofficioso testamento is quoted (D 5.2.18, 5.2.23 and 5.2.32) but the quoted text does not contain any reference to the centumviral court. The title of another sole book by Paul de septemviralibus iudiciis cited at D 5.2.7, 5.2.28 and 5.2.31 has been commonly taken since at least the time of Haloander (1501–1531) to be an error for a work de centumviralibus iudiciis.

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One sues for an unduteous will on this basis (hoc colore), that they were not in their right mind when they ordained their will. And note that it is said not that the testator was really mad or out of his mind but that the will was made properly, but not with regard to propriety. For if he were truly mad or out of his mind, the will would be void.14

Marcellus (D 5.2.5) adds: The force of the words “concerning undutifulness”, as I see it, refer to unmerited and therefore unworthy passing over or even suppression by disinherison: and the basis [color] of the claim before the judge is that it seems that he was as if not in his right mind, when he made so unjust a will.15

Both jurists use an uncharacteristic word color which I have loosely translated “basis”. Color is a rhetorical term; indeed whole sections of the traditional handbooks on oratory are devoted to exploring its role in a speech. It is closely tied to the notion of pleading in common law terminology. In the traditional common law allegations in pleadings do not have to be proved and it was commonplace to allege wholly formal matters against the defendant which no one professionally involved in the process took seriously. A classic example is the English common law’s allegation that a wrong was committed with force of arms, to wit, with sticks and bows and arrows, against the King’s Peace, when all that was involved was, say, cattle depasturing a meadow against right. In the hands of pleaders color did not have any but the most formal and trivial of consequences. In the hands of a barrister addressing a jury or an orator a centumviral court, it might be quite other. The lawyer knows it is a fiction, the lay judge may not. A peculiarity of the querela was that, although success had the effect of overturning the will and allowing the plaintiff in for his intestate share, it only had that effect as against those heirs who were successfully sued. If a brother, unjustly excluded, brought separate actions against each of his two brothers, both instituted heirs in equal portions, and won against the first but lost against the second then, as against the first he obtained his intestate share of up to one third of the whole estate and, as against the second, nothing. The losing brother is not excluded, he is also entitled to up to one third. And so the 14 Marcianus, libro quarto intitutionum: “Hoc colore inofficioso testamento agitur, quasi non sanae mentis fuerunt, ut testamentum ordinarent. et hoc dicitur non quasi vere furiosus vel demens testatus sit, sed recte quidem fecit testamentum, sed non ex officio pietatis: nam si vere furiosus esset vel demens, nullum est testamentum.” 15 Marcellus, libro tertio digestorum if: “huius autem verbi ‘de inofficioso’ vis illa ut dixi est docere immerentem se et ideo indigne praeteritum vel etiam exheredatione summotum: resque illo colore defenditur apud iudicem, ut videatur ille quasi non sanae mentis fuisse, cum testamentum inique ordinaret.”

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first two brothers get one quarter each, leaving one half with the successful defendant. The jurists noted, without embarrassment, that this result was contrary to the principle that no one can be partly testate, partly intestate.16 Curianus therefore hoped to gain, as against the heirs he chose to sue, his full share of the inheritance. As against Pliny, however, he had earlier determined not to sue and was now time-barred. Pliny’s share of the estate was therefore secure, irrespective of the decision of the centumviral court in the other cases – even if, that is, they were persuaded to find for Curianus on the basis that his mother’s decision to exclude him was unduteous. Pliny persuades Curianus to compromise by the following two arguments. First, he suggests, even if his mother had nominated him her heir in her will she would have charged him as heir with many legacies – by implication in favour of those individuals who were eventually instituted heirs in Curianus’ place. But, of course, if the amount of these legacies had been excessive then Curianus could, as heir, have invoked the lex Falcidia to guarantee himself a quarter of the whole. By the terms of the lex Falcidia of 40 bc legacies which exceeded in total three-quarters of the estate were to be reduced pro rata so as to give the heir a quarter: the motivation was to prevent non-family heirs deciding to refuse the estate, thereby precipitating an intestacy, if they could not be assured of a substantial share. Pliny suggests that the heirs who are being sued will compromise by each handing over to Curianus a quarter of what they have obtained. It is a genuine compromise for if Curianus persists in suing he may gain more – indeed four times as much. But on the other hand if he loses he loses all. This minimalist offer would not perhaps by itself prevent Curianus from continuing to sue. Pliny therefore clinches the matter by offering to hand over from his own share the quarter which, on his hypothesis, he would have lost if he were only to have been a legatee in a will in which Curianus had been made heir. I. CONCLUSION Pliny shows himself in a good light. Singled out by Curianus as the most morally influential of his mother’s heirs, he resists the unscrupulous suggestion that he publicly hand over his share to Curianus. But, openminded, he agrees to forgo acceptance altogether if it can be shown that Curianus’ mother’s decision not to make Curianus her heir was unjustified. Pliny conducts a professionally competent private hearing. When Curianus persists before the 16 The three brothers’ case is in D 5.2.24 (Ulpian, Sabinus 48) and see also Papinian D 5.2.15: “nec absurdum videtur pro parte intestatum videri”.

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centumviral court it is Pliny who is asked to effect a compromise and this he achieves by agreeing voluntarily to place himself in the same position as those of his fellow heirs who are being sued and magnanimously to renounce one quarter of his share. In all this it rather escapes our attention that Pliny manages to retain the greater part of what he had been given by Curianus’ mother and subsequently to acquire a further gift in Curianus’ own will.

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7 The Hereditability of Locatio Conductio P J du Plessis A. INTRODUCTION What is the relationship between Roman law and the society which produced it? The answer to this question is in fact much more complicated than it may seem at first glance. There are two divergent academic views on the issue. On the one hand, Alan Watson has argued that it is too simplistic to assume that a close link between law and society should necessarily exist.1 Although some connection is bound to be present, the precise nature of it often remains obscure and cannot by definition be used to explain the nature of specific rules of law. On the other hand, John Crook has argued that there is a close relationship between Roman law and society and that many rules of law may be explained in terms of the peculiarities of that society.2 The aim of this chapter is to test these two views using a specific area of Roman private law, namely letting and hiring, one of the consensual contracts which has become a much discussed topic in the last few years.3 More specifically, this chapter will investigate the effect of death of one of the parties on the contract of letting and hiring. It may well be asked why letting and hiring should receive special attention in this regard, since death had a variety of legal consequences in virtually every aspect of Roman private law. The reason for the particular focus is the following. Letting and hiring, like sale, was a consensual contract with widespread application.4 It affected the lives of a substantial part of Roman society either through contracts of work or tenancy (whether urban or agricultural). It stands to reason that the issue of death would have cropped up in relation to the praxis of the contract of letting and 1 See generally A Watson, Legal Transplants 2nd edn (1993) and A Watson, “Law and Society”, above, 9. 2 J A Crook, Law and Life of Rome, 90 BC–AD 212 (1967) ch 1. 3 Recent literature on the contract of letting and hiring is vast. See, e.g., the excellent work by R Fiori, La definizione della “locatio conductio” (1999). 4 The contract is presumed to have arisen during the second half of the second century bc if not before: see A Watson, The Contract of Mandate in Roman law (1961) 9–10. Cf A Watson, The Law of Obligations in the Later Roman Republic (1965) 100–101.

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hiring on a regular basis. Thus the way in which the Roman jurists dealt with the issue in terms of the law of letting and hiring may provide some measure of support for either of the two academic views proposed above. The hereditability of letting and hiring is not a topic that is widely treated in modern literature on Roman law. The main reason for this is that source material on this matter is rather scant. Although Roman legal texts contain a number of references to the heir of either the locator or conductor, they do not present an unambiguous statement to the question of the hereditability or indeed when this development occurred in the history of the contract. This lack of clarity is also in evidence in modern textbooks on Roman law. Kaser, for example, did not address the issue at all and merely classified certain types of lease such as emphyteusis5, superficies and the letting and hiring of ager vectigalis6 as “hereditary”, mainly because they effectively conferred ownership of the leased property to the tenant.7 Buckland, under the heading “involuntary modes of termination of an obligation”, mentioned that death of the creditor in general had no effect upon the obligation except when it brought the rules of impossibility into play.8 Examples of obligations terminated by death were listed as partnership, mandate, sponsio, adstipulatio and fideipromissio. Nicholas stated that in certain cases obligations were discharged by death of one of the parties and gave as examples the contracts of partnership and that of mandate.9 Thomas recounted the general rule, namely that, with certain exceptions, death of one of the parties normally did not terminate an obligation arising from a lawful relationship.10 The exceptions listed include the contracts of partnership and of mandate as well as locatio conductio operarum and (in specific cases where the issue of skill was paramount) locatio conductio operis faciendi.11 Thomas’ statement was not based on direct textual evidence, but on a conclusion drawn from the nature of the exceptions listed. Since partnership and mandate generated intensely personal rights and duties, it stood to reason that these would be terminated by death of one of the parties. The same reason could, by analogy, be extended to certain examples of (using modern terminology) locatio conductio operarum and in certain cases locatio conductio operis faciendi. 5 6 7 8

J Inst 3.24.3. Gai Inst 3.145. RPR2 §§ 107, 248, 249 . W W Buckland, A Textbook of Roman law from Augustus to Justinian, 3rd edn by P Stein (1975) 562. 9 B Nicholas, An Introduction to Roman law (1975) 198. 10 J A C Thomas, Textbook of Roman law (1976) 341. 11 Not in all cases of locatio conductio operis faciendi, see D 19.2.60.3 (Labeo, Posthumous Works, Epitomized by Javolenus 5).

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As far as can be ascertained, this is the only overt statement regarding the impact of death on locatio conductio in a modern textbook. There is every reason to suspect that Thomas’ view on this matter is correct, since it seems logical that the death of a locator operarum, e.g. a scribe, or a conductor operis faciendi, e.g. master builder, led to the termination of the contract.12 It is also on these grounds that the former two types of letting and hiring will be excluded from this discussion. Given what has been proposed thus far, it would therefore appear from the absence of any contrary statement on the matter that as far as modern textbooks are concerned death of either the locator or conductor did not have an effect on locatio conductio rei of movable or immovable property. The argument will be developed in three stages. First, issues of dating will be addressed. This will be followed by a survey of the legal sources mentioning the effect of the death of the conductor upon the lease. Finally, the legal texts dealing with the effect of the death of the locator will be investigated. The Roman jurists’ treatment of these two issues will be used to draw some conclusions concerning the relationship between law and society. B. A QUESTION OF DATES Establishing the exact point at which innovations were introduced into a specific area of Roman law is rarely an exact science. Not only are the sources incomplete, but as Alan Watson rightly surmised: “the Roman jurists do not seem much interested in recording when and why particular rules were introduced”.13 Letting and hiring is no exception. Little is known about the origin and pre-history of this contract apart from an approximate date of inception in the second half of the second century bc (if not before) and its appearance as a iudicium bonae fidei in Quintus Mucius Scaevola’s list cited by Cicero.14 Since it is generally assumed that most of the developments in praetorian law occurred prior to 100 bc, this provides a comparatively short period of time in which much of the law of letting and hiring came into existence.15 It may well be asked at this point whether the notion of the hereditability of locatio conductio rei may also have arisen during this period. There are two pieces of evidence in support of this suggestion. 12 For the purposes of this chapter, the contract will be viewed merely as the act that creates the rights and duties arising from the lease. 13 Watson, “Law and Society” (n 1) 28; cf A Watson, The Spirit of Roman Law (1995) 206. 14 Cicero, De Officiis, 2.17.70. 15 One possible reason for this short period of development is that many of the rules governing letting and hiring in Roman public law were taken over and adapted to provide the foundation for the contract of letting and hiring in Roman private law.

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The first piece is a statement by Cicero in the Verrine orations.16 In the second book of the Verrine orations, Cicero went to great lengths to expose the full extent of Verres’ corruption. Part of this tactic involved exposing malpractices that occurred during his term as praetor urbanus in 74 bc. In the context of this discussion Cicero recounted the story of a contractor of public works who had been tasked with the maintenance of the temple of Castor. The contractor had completed the work, but had died before the contracts could be wound up officially as required by law. The son and heir of the contractor, who was a minor at the time, was charged with winding up the contract and Verres attempted to extort money from the minor by threatening to withhold the official approval of the maintenance work (probatio operis) required by law. Since Cicero did not deem it necessary to analyse the legality of transferring this duty of completing the contract onto the heir, the only conclusion that may be drawn from this discussion is that the heir of the contractor had inherited the contractual obligation from his father. Although this example is taken from public law, it is not without worth. Letting and hiring in Roman public law antedates the consensual contract of lease in Roman private law by roughly two centuries and it has been suggested by scholars such as Mommsen, for example, that it provided the historical blueprint for lease in Roman private law.17 Furthermore, the fact that Cicero, who had a profound knowledge of and interest in Roman law, mentions it merely in passing is an indication that it was an accepted practice in Roman public law and therefore must have existed for some time. There is another, even more compelling, piece of evidence from the realm of Roman private law. Cicero, in his letters to Atticus, mentions that he inherited an urban tenement from the Puteolan banker, Marcus Cluvius.18 From his discussion of the matter it appears that the existing leases relating to the tenements were not affected by the death of the locator and that it was only as a result of their dilapidated state that the tenants decided to terminate their leases unilaterally by moving out. Once again, the matter-of-fact way in which it is mentioned by Cicero suggests that it was well established in law at this point. 16 Cicero, In Verrem, 2.1.51,130–2.1.51.150 as discussed in P J du Plessis, “The protection of the contractor in public works contracts in the Roman Republic and Early Empire” (2004) 25–3 JLH 287. 17 T Mommsen, “Die römischen Anfänge von Kauf und Miethe” (1885) 6 ZSS (rA) 260. 18 Cicero, Ad Atticum, 13.45.2– 3; 13.46.3; 13.37.4 comprehensively discussed in B W Frier, “Cicero’s management of his urban properties” (1978) 74 Classical Journal 1. Cicero seems to have been one of a number of co-heirs of the estate of Cluvius and seems to have bought out the other heirs.

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These two examples provide strong evidence that the hereditability of locatio conductio rei must either have formed part of this contract from its inception (which is a possibility, but cannot be proved or disproved either way) or was introduced into Roman private law between the mid-second century bc and the first century bc. Irrespective of these dates, however, it is evident that the issue of the hereditability of locatio conductio rei predates juristic discussion of the sophisticated notion of the law of obligations found in classical Roman law. It is generally accepted that the theoretical conception of the law of obligations and the classification of Roman contracts came about only in the classical period of Roman law.19 Thus, the issue of the origin of the hereditability of lease cannot be explained merely in terms of obligations, though it subsequently provided some justification for it as is evidenced by the discussion of this matter in modern textbooks on the subject. C. DEATH OF THE CONDUCTOR It is difficult to obtain a complete picture from Roman legal sources concerning the impact of the death of the conductor on locatio conductio rei as this aspect was often treated merely as an ancillary issue. There are three legal texts in which the issue is discussed at length and since two of these are Imperial constitutions, a chronological approach will be followed. The first is D 19.2.15.9, a text by Domitius Ulpianus (ad 170 – 223) where he comments on a statement made by the second-century jurist, Salvius Iulianus († ad 169).20 An unnamed locator let a piece of land to Titius, who died (before the end of the term of lease) and who previously had instituted a minor under tutelage as his heir. The tutor refused the inheritance on behalf of his ward and the locator let out the property to a third party at a higher price. The ward was thereafter restored to the testator’s property. The reason for the restoration is not mentioned, but it does not appear from the use of the word pupillus that this occurred as a result of the natural progression of time, i.e. that the ward eventually attained majority and thus control of his assets. The text furthermore does not provide enough information to establish whether the tutor’s refusal of the inheritance constituted negligence, but 19 H F Jolowicz and B Nicholas, Historical Introduction to the Study of Roman Law 3rd edn (1972) 271–304. 20 D 19.2.15.9 Ulpianus libro trigesimo secundo ad edictum: “Interdum ad hoc ex locato agetur, ut quis locatione liberetur, Iulianus libro quinto decimo digestorum scripsit. Ut puta Titio fundum locavi isque pupillo herede instituto decessit et, cum tutor constituisset abstinere pupillum hereditate, ego fundum pluris locavi: deinde pupillus restitutus est in bona paterna. Ex conducto nihil amplius eum consecuturum, quam ut locatione liberetur: mihi enim iusta causa fuit elocandi.”

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there are suggestions in three subsequent statements that this avenue was explored by the jurists.21 Be that as it may, Ulpian commented in the final part of this text that if the ward were to bring a lawsuit ex conducto concerning the rented property after being restored to his inheritance, he would obtain nothing more than release from the lease since the locator had a just cause for letting it out to another, because (according to Julian) “at the time no actions were accorded against the ward”.22 The most notable point about this text is that the heir of the conductor, who had not been party to the original contract between the locator and Titius, could use the actio conducti to obtain formal release from it. That this action could be transmitted to the heir is confirmed by Ulpian’s contemporary, the third-century jurist Paul, who observed in D 19.2.19.8 that the actio conducti passed to the heir of the conductor.23 The availability of the action to the heir of the tenant is an indication that certain rights arising from the lease must have passed to him. A number of additional conclusions may be drawn from this text. First, the fact that Ulpian is commenting on a passage from a jurist of the latter part of the second century ad is an indication that the issue of the hereditability of lease may already have been under consideration at this point. As previously shown, the issue of hereditability already surfaced in the statements of Cicero in the first century bc and must therefore have formed part of the locatio conductio rei from a relatively early stage in its history. Secondly, the death of the conductor (Titius) does not appear to have affected the lease. Rather, given the subject-matter of the text, the rights and duties arising from the lease appear to have formed part of the inheritance. This is in keeping with the Roman system of inheritance whereby the heir stepped into the shoes of the deceased and acquired not only his assets, but also his debts.24 It was only when the inheritance was refused that the locator regarded himself as being no longer bound to fulfil his contractual duties in respect of the rented land. 21 See D 19.2.17 (Ulpian, Edict 32); D 19.2.18 (Julian, Digest 15) and D 19.2.19pr (Ulpian, Edict 32). 22 The reason for the refusal is not given and the text appears incomplete. A reason is provided by the subsequent fragment, D 19.2.16, a statement by Julian. 23 D 19.2.19.8 Ulpianus libro trigesimo secundo ad edictum: “Ex conducto actionem etiam ad heredem transire palam est.” 24 Gai Inst 2.97. Universal succession was a key feature of the Roman law of succession. The object of succession was the sum total of assets and transmissible rights. In testate succession, the heir had to accept the inheritance formally, whereas in intestate succession acceptance was not required by law. This raises a further question. All three texts dealing with the death of the conductor seem to presuppose testate succession. It may therefore be asked whether the legal position would have been different in the case of intestate succession. The texts do not provide any information on this point, but it seems unlikely given that in the case of intestate succession the sum total of assets and transmissible rights would still have transferred to heirs, albeit according to the rules of intestate succession.

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Clearly the ward regarded him as still being bound by the lease and sued for breach of contract (ex conducto). Ulpian’s view was that such a suit could only result in a formal release from the contract. The following text (C 4.65.10) is an Imperial rescript produced during the reign of the Emperor Gordian in the first half of the third century ad and addressed to one Pomponius Sabinus.25 The lack of context makes it difficult to establish whether the response arose in abstracto or from a specific set of facts, but the latter seems plausible given the way in which the response is worded. The text shows that there was some confusion regarding the hereditability of locatio conductio which prompted an imperial response that not only perpetual leases, such as the ones that de facto conferred ownership on the tenant, but also leases of shorter duration could be inherited. In the latter case the heir of the conductor was burdened by the contract of lease for the remainder of the original term of lease. The use of the term onus contractus seems particularly apt in this case.26 It may well be asked why it was necessary to produce a statement of this nature when it had been settled in juristic law on the authority of both Ulpian and Paul in the mid-third century ad that the actio conducti passed to the heirs of the tenant. Although there is no definitive answer to this question, it could be surmised that the need to restate the law authoritatively may be connected to the rise of other forms of perpetual leases which were hereditary. Furthermore, the change in civil procedure from the formula to cognitio may have rendered a statement concerning the hereditability of the actio conducti with its stock formula less useful and therefore may have required a more complete statement supported by the authority of the emperor on the issue. The final text (C 4.65.24) is an imperial rescript produced in the last decade of the third century ad during the reign of the Emperors Diocletian and Maximian and addressed to Aurelius Antoninus.27 The text is somewhat 25 C 4.65.10 Imp. Gordianus A Pomponio Sabino: “Viam veritatis ignoras in conductionibus non succedere heredes conductoris existimans, cum, sive perpetua conductio est, etiam ad heredes transmittatur, sive temporalis, intra tempora locationis heredi quoque onus contractus incumbat” [a.239]. T Honoré, Emperors and Lawyers, 2nd edn (1994) 115 note 524 controversially dates this text to ad 22 February 239 and attributes it to the pen of the unnamed secretary no 12 whose term of office covered the period ad 21 March 238–ad 12 June 241. 26 The translation of this text by S P Scott, The Civil Law, Including the Twelve Tables, the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions of Leo XIII (reprint, 2001) 130 is particularly unfortunate. 27 C 4.65.24 Impp. Diocletianus et Maximianus A A Aurelio Antonino: “Contractus locationis conductionisque non intervenientibus etiam instrumentis ratus habeatur: secundum quod heredes conductoris, etsi non intervenerit instrumenta, non uxorem convenire debes. Sane de postiore tempore, quo conductricem ipsam proponis fuisse, adesse fidem precibus tuis probans pensionem integras ab ea pete” [a.293].

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condensed and a reading of the corresponding Basilica text provides valuable additional information.28 The text seems to be based on the following set of facts. A locator entered into a contract of lease with a conductor. The parties concluded an oral agreement. The conductor died before his term of lease had expired and one or more heirs inherited the contract and continued the pay the rent. At some point, either the heirs or the wife of the deceased conductor went into arrears and the locator sought legal advice as to who might be sued for the arrears.29 In the first sentence of this text a general rule that oral agreements of lease are as binding as written ones is restated. This is followed by a statement that a locator cannot sue the wife of the conductor although the contract may not have been reduced to writing, yet he may sue the heirs of the tenant. The text does not explain why the wife is excluded from liability, but may be found in the fact that she was never a party to the oral contract of lease nor had she probably inherited it. The final part of the text explores the circumstances in which the wife of the deceased tenant will be liable for the arrears. If it could be proven by the locator that she had assumed the role of conductor – something that could potentially be difficult to do given the orality of contracts of lease – she should be liable for the full rent (presumably for that period).30 Thus, like the previous imperial rescript, this text confirms that the lease transferred upon the death of the conductor to his heirs even though the contract may not have been reduced to writing. However, the oral nature of the original agreement did not allow the locator to sue a third party (such as the wife of the deceased conductor) who may have witnessed the original agreement, but clearly had not been a party to it. She could only be sued if it could be proven that she assumed the role of the conductor. One of the clearest indications that contractual rights and duties passed to the conductor’s heir may be found in the Roman jurists’ statements on the question of possession. According to the rules of the contract of lease, conductores did 28 Bas 20.1.86 = C 4.65.24 in G E Heimbach, Basilicorum libri LX : post Annibalis Fabroti curas ope codd mss / a Gustavo Ernesto Heimbachio aliisque collatorum integriores cum scholiis edidit, editos denuo recensuit, deperditos restituit; translationem Latinam et adnotationem criticam adiecit D Carolus Guilielmus Ernestus Heimbach II (1833 – 1897). 29 This interpretation of the text is deduced from its nature as well as from the final sentence where reference is made to a legal petition (adesse fidem precibus tuis probans). 30 Again the translation of this text by Scott, Civil law XIII (n 26) 132 is particularly unfortunate. Surely “secundum quod heredes conductoris, etsi non intervenerint instrumenta, non uxorem convenire debes” does not translate as “in accordance with which you cannot sue the wife of the lessor (sic!), even though the lease may not have been reduced to writing”. Rather, the translation should read: “in accordance with which you ought to sue the heirs of the tenant and not the wife, even though the lease may not have been reduced to writing”. This is also the sense in which the authors of the Basilica understood the text: “Transmittatur autem adversus heredes, non etiam adversus uxorem”.

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not acquire legal possession of the rented object as they merely held it under the terms of their contract as detentores. Possession remained with the owner and was exercised over the rented object via the tenant. Both D 19.2.60.131 and D 41.2.40.132 show that the death of a conductor did not terminate the owner’s possession. The latter text, in particular, indicates that this measure was introduced on grounds of utility to prevent possession being broken. In summary: analysis of the texts shows that the death of the conductor before the end of the term of lease did not terminate the rights and duties arising from the contract. These could be inherited by the heirs of the conductor. The matter was already the subject of juristic discussion as early as mid-second century ad (although it had been accepted as law at least as early as the first century bc) and was definitively resolved by an imperial rescript from the first half of the third century ad. The question may well be asked why the rights and duties arising from lease in particular could be inherited by the conductor’s heirs. As demonstrated earlier in this chapter, the notion of the hereditability of letting and hiring antedates the theorising about the technical meaning of obligatio and the law of obligations that occurred in classical Roman law. It may well be (although this is not confirmed by any text) that in the early stages of the history of locatio conductio rei, the payment of rent was conceived of as a debt payable to the locator and for which the heirs of the deceased conductor became liable upon his death during the course of the term of lease. Alternatively (and this may be a later justification that would have been compatible with the abstraction surrounding the concept of obligatio), the reason for the transmissibility of the rights and duties may be explained in terms of the contractual position of the conductor under locatio conductio. The conductor was a mere detentor whose primary contractual duties under locatio conductio rei was to pay the rent at the agreed time and to keep the object of lease, whether movable or immovable, in a proper state of repair as agreed in the contract between the parties. Neither of these duties could be regarded as highly personal and could equally be fulfilled by an heir. This could account for the statement in Justinian’s Institutes.33 31 D 19.2.60.1 Labeo posteriorum libro quinto a Iavoleno epitomatorum: “Heredem coloni, quamvis colonus non est, nihilo minus domino possidere existimo.” 32 D 41.2.40.1 Africanus libro septimo quaestionum: “Si forte colonus, per quem dominus possideret, decessisset, propter utilitatem receptum est, ut per colonum possessio et retineretur et contineretur: quo mortuo non statim dicendum eam interpellari, sed tunc demum, cum dominus possessionem apisci neglexerit. Aliud existimandum ait, si colonus sponte possessionem discesserit. Sed haec ita est vera, si nemo extraneus eam rem interim possederit, sed semper in hereditate coloni manserit.” 33 J Inst 3.24.6: “Mortuo conductore intra tempora conductionis heres eius eodem iure in conductionem succedit.”

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One final point requires consideration. The analysis has revealed that the death of the conductor during the course of the term of lease did not have any effect upon it. The rights and duties arising from the lease could be inherited by the tenant’s heirs. On an abstract level, it may therefore be argued that the death of the conductor allowed a “substitution” of one of the parties to the lease by virtue of the rules of Roman succession. Since Roman law was generally uncomfortable with such a move, it is necessary to investigate whether similar “substitutions” of the conductor during the course of the lease were allowed. In recent years, two texts from the Murecine archive of the Sulpicii, a family of moneylenders from Puteoli, have shed new light on the letting and hiring of warehouses – a form of locatio conductio rei about which not much was known.34 TPSulp 45 is a record of a contract of lease relating to a specific grain stall within a warehouse.35 The larger context of this contract is provided by other documents from the same archive. A certain Gaius Novius Eunus owned a quantity of wheat which he stored in the warehouse by renting a space from the warehouse manager. No record of this lease survives. He needed to raise money for another commercial transaction and approached a moneylender, Tiberius Iulius Evenus, for a loan. The latter agreed to finance the loan, but required security for the repayment of it. Eunus volunteered the wheat that he had stored in the grain stall as security for the loan. To ensure that the moneylender, Evenus, acquired legal possession of the wheat, he “took over” the lease relating to the grain stall in which the wheat was stored. The latter could not merely be substituted as conductor of the grain stall in the original agreement between Eunus and the warehouse manager. Rather, a new contract had to be drafted and this is recorded in TPSulp 45. It may well be argued that this situation is so different from the scenarios mentioned above that it does not warrant comparison, but there is a basic principle that can be deduced from both. A voluntary “substitution” of the 34 Critics of these documents may argue that they cannot be used to make assumptions about the state of the law as it is not certain that the moneylenders were acting with full knowledge of Roman law. It may be pointed out in defence of these two documents, however, that there seems to be nothing legally objectionable in them: see P J du Plessis, “Between theory and practice: new perspectives on the Roman law of letting and hiring” (2006) 65 Cambridge Law Journal 423. 35 C(aio) Caesare Germanico Augusto Ti(berio) Claudio Nerone Germanico co(n)s(ulibus), sextum nonas Iulias (2 July 37 ad). Diognetus C(aii) Novi Cypaeri servus scripsi iussu Cypaeri domini mei coram ipso me locasse Hesycho Ti(berii) Iuli Augusti l(iberti) Eueni ser(vo) horreum duodecimum in horreis Bassianis publicis Puteolanorum mediis, in quo repositum est triticum Alexandrinum, quod pignori accepit hac die a C(aio) Novio Euno, item in iisdem horreis imis intercolumnia, ubi repositos habet saccos leguminum ducentos, quos pignori accepit ab eodem Euno. Ex k(alendis) Iuliis in menses singulos sestertiis singulis n[u]m(mis). Act(um) P[u]t(eolis). (Reconstruction taken from G Camodeca, Tabulae pompeianae Sulpiciorum (TPSulp.): Edizione critica dell’archivio puteolano dei Sulpicii (1999) 122.

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conductor during the course of the term of lease such as the one described in TPSulp 45 did not have the same effect on the rights and duties arising from the lease as an involuntary “substitution” resulting from the death of the conductor. In the former case, Roman law did not allow the rights and duties to be transferred onto the incumbent conductor and a new lease had to be entered into.36 In the latter case, on the other hand, the rights and duties continued to exist unaffected and could be transferred to the tenant’s heir through the operation of the Roman law of succession. D. DEATH OF THE LOCATOR There are two legal texts in which the effect of the death of the locator prior to the end of the term of lease is discussed.37 The first text (D 19.2.24.5) is by Paul, a jurist who flourished during the early years of the third century ad.38 A piece of property had been rented out for a number of years. During the course of the term of lease, the locator died. In his will he instructed his heir to discharge the tenant from rent payment. The reason for this request is not given. Should the heir refuse to provide the tenant with enjoyment of the leased property for the remainder of his term of lease, Paul held that he could be sued by the tenant ex conducto. This is a clear indication that the incumbent heir was tasked with the obligations arising from the lease. If he refused the instructions in the will to remit a portion of rent, on the other hand, but permitted the tenant enjoyment of the leased property for the remainder of the term of lease, he could be sued ex testamento. Paul’s opinion on the matter is consistent with the legal position explained thus far. Death of the locator did not terminate the rights and duties arising from the lease. They were transferred to his heir who had to honour them or face lawsuits by the conductor. The second text (D 19.2.9.1) is a variation on the theme by Paul’s contemporary, the third-century jurist Ulpian, who is quoting a jurist from the 36 But see D 19.2.13.10 where the contract (in the context of locatio conductio operis) contained a clause specifically permitting substitution of the conductor. This measure was clearly punitive. 37 In a certain sense, the effect of the death of the locator during the course of the term of lease is easier to explain. Where the locator was also the owner (as in most cases) the object of lease fell within his estate. His death would only bring about a transfer of ownership of the object of lease to his heirs either through testate or intestate succession. Thus the rights and duties arising from the lease would be linked in a certain sense to the notion of ownership of the object of lease and its transfer to the heirs. 38 D 19.2.24.5 Paulus libro trigesimo quarto ad edictum: “Qui in plures annos fundum locaverat, testamento suo damnavit heredem, ut conductorem liberaret. Si non patiatur heres eum reliquo tempore frui, est ex conducto actio: quod si patiatur nec mercedes remittat, ex testamento tenetur.”

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second century ad, Ulpius Marcellus.39 Marcellus asked whether the heir of a usufructuary, who had let out the use and enjoyment of a piece of land and died before the end of the term of lease, was liable to provide the conductor with use and enjoyment. The jurist’s response to this question is consistent with the nature of usufruct as a personal servitude. Since a personal servitude terminated with the death of the usufructuary, his heir had no legal obligation to provide the conductor with use and enjoyment of the object of lease for the remainder of the term of lease. In this case the rights and duties arising from the lease were not connected to questions of ownership of the object of lease. The deceased locator (a usufructuary) was entitled to lease out the object by virtue of his right to enjoy the fruits of the object over which the usufruct was held. That right was personal and attached to the holder of the personal servitude. It therefore terminated upon the death of the holder of the usufruct and the rights and duties generated by the lease could not be transferred by the law of succession to the heir of the usufructuary. These two texts demonstrate the consequences of the death of the locator on the rights and duties arising from the lease. If the locator were the owner of the leased object, his heirs were burdened by the rights and duties arising from the lease for the remainder of the term of lease. If these were not observed, they could be held liable by the tenant ex conducto. If the locator were not the owner of the object of lease, however, and merely rented it out by virtue of a lesser real right such as a servitude, for example, the death of the locator terminated the rights and duties arising from the lease owing to the nature of the lesser real right (a personal servitude). It remains to be considered whether other “substitutions” of the locator during the course of the term of lease was permitted in Roman law. There is one analogous situation involving a change of the locator before the expiry of the conductor’s term of lease mentioned in the sources. It involves the sale of the object of lease before the end of the tenant’s term of lease. Again, it could be argued that the two situations are too dissimilar to warrant comparison. 39 D 19.2.9.1 Ulpianus libro trigesimo secundo ad edictum: “Hic subiungi potest, quod Marcellus libro sexto digestorum scripsit: si fructuarius locaverit fundum in quinquennium et decesserit, heredem eius non teneri, ut frui praestet, non magis quam insula exusta teneretur locator conductori. Sed an ex locato teneatur conductor, ut pro rata temporis quo fruitus est pensionem praestet, Marcellus quaerit, quemadmodum praestaret, si fructuarii servi operas conduxisset vel habitationem? Et magis admittit teneri eum: et est aequissimum. Idem quaerit, si sumptus fecit in fundum quasi quinquennio fruiturus, an recipiat? Et ait non recepturum, quia hoc evenier posse prospicere debuit. Quid tamen si non quasi fructuarius ei locavit, sed si quasi fundi dominus? Videlicet tenebitur: decepit enim conductorem: et ita imperator Antoninus cum divo Severo rescripsit. In exustis quoque aedibus eius temporis, quod aedificium stetit, mercedem praestandum rescripserunt.”

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Death of the locator is an unforeseeable event that triggers the rules of testate or intestate succession, while the sale of the object of lease is a voluntary commercial transaction created by the owner/locator’s conscious desire to sell a certain object. However, both scenarios essentially refer to a change in the locator during the course of the conductor’s term of lease. The sale of the object of lease before the end of a term of lease is nowhere more clearly discussed than in the context of lease of tenement buildings.40 While some of these were undoubtedly managed by slaves, the Roman legal sources indicate that many owners preferred to let out the entire tenement building to a single conductor (middleman) who sublet the individual spaces for profit.41 It is in this context that the sale of the tenement before the end of the primary conductor’s term of lease has expired is discussed. When a tenement was sold during a term of lease, tenants seemingly had little protection against their eviction by the new owner. Despite the urban tenant’s apparent lack of security of tenure, Kaser argued that a seller in such circumstances would generally have obtained a guarantee (in the form of a special pactum) from the purchaser that he would allow the tenants to remain on the leased property for the duration of the term of the lease.42 It would have been in the best interest of the seller to obtain such a guarantee, since failure to do so would enable the existing tenants, upon eviction by the new owner, to sue him in terms of the contract of lease for breach of his obligation uti frui praestare. The seller would in turn be able to sue the purchaser on the contract of sale (or the guarantee) if he broke his promise and decided to evict the tenants. One point not explicitly resolved in the legal texts is the effect of the transfer of ownership of the object of lease upon the existing contract of lease. The Romanist view is that the sale of the tenement effectively terminated any existing contract of lease. Zimmermann observes: It is not the contract of sale that had any detrimental effect on the relationship between the lessor/vendor and his tenant. It is only on account of the subsequent transfer of possession and of ownership that the lessor/vendor makes it impossible for himself to carry out his obligation under the contract of lease (namely to 40 There are two texts dealing with the issue of the sale of a tenement before the primary tenant’s term of lease has expired (D 19.1.53pr; D 19.2.58pr). Both texts are attributed to Marcus Antistius Labeo, a jurist of the first part of the first century ad. The first text is an extract from book one of Labeo’s Pithana, while the second text was taken from his Posthumous Works epitomised by the second-century jurist Javolenus Priscus. Both texts are concerned with the interpretation of a provision in a contract of sale (the lex venditionis) stating that the income of the tenement (merces insulae) should fall to the purchaser. 41 For an extensive discussion of this aspect, see P J du Plessis, Janus in the Roman Law of Urban Lease (2006) 55 Historia 48. 42 RPR2 I § 132 2 III 4 based on D 19.2.25.1 and D 19.1.13.30.

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provide uti frui praestare licere), and that he exposes the tenant to the risk of being expelled by the purchaser. … The contract of lease was, of course, not “broken” by either sale, transfer of ownership or any other transaction. It continued to exist and did, in fact, provide the tenant with his only remedy, the actio conducti against the lessor.43

It does not take much to see that this would have produced a highly cumbersome situation in practice. The lease between the tenant and the previous owner of the tenement (the original lessor) continued regardless of the sale of the object of lease, but presumably the rent now had to be paid to the new owner. The tenant was only protected against eviction in a roundabout way. It would have been far less burdensome for the purchaser to assume the role of the locator and to maintain the existing contract of lease with the primary tenant, especially where an insula was bought as an economic investment. However, this is not supported by the legal texts, nor does it seem to have been possible given the analysis of texts provided in this chapter. Once again, the Roman position seems to have been that an involuntary “substitution” of the locator on account of death did not have any effect upon the rights and duties arising from the lease. A voluntary “substitution”, on the other hand, was impossible. The sale of the object of lease to a third party did not entitle him to take over the existing lease. The incumbent owner had to wait until the term of lease had expired before being able to enter into a new one with the existing tenant. E. CONCLUSION The issue of the hereditability of locatio conductio rei has a long history. It predates the theorising about obligations in classical Roman law by more than a century and cannot be used as justification for the origin of this aspect of letting and hiring. This chapter investigated the legal consequences of the death of one of the contracting parties on the lease. Death of the conductor does not seem to have affected the rights and duties arising from locatio conductio rei. Not only did Roman jurists make it clear that the actio conducti was available to the heirs of the tenant, but a third-century Imperial rescript resolved the issue beyond doubt. The texts demonstrate, however, that the issue of the hereditability operated within fixed parameters. Only the heirs of the deceased tenant inherited the rights and duties arising from the lease and, even where the lease had not been reduced to writing, third parties 43 R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition, paperback edn (1996) 379.

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who may have had knowledge of it, but who were not party to it or did not inherit the rights and duties under the lease could not be sued for unpaid rent. It furthermore seems that the rights and duties arising from lease only transferred to the heirs because of the operation of the rules of succession. A voluntary “substitution” of the conductor did not lead to the transfer of the rights and duties arising from the lease. In the latter example a new contract had to be entered into. A similar approach was taken regarding the legal consequences arising from the death of the locator during the course of the term of lease. Where the locator was the owner of the object of lease, the rights and duties arising from it were transferred to his heirs either through testate or intestate succession. Where he was not the owner, but was merely entitled to rent out the object of lease by virtue of a limited real right, however, the death of the locator also terminated any rights and duties arising from the lease. Once again the transfer of the rights and duties arising from the lease upon the death of the locator seems to have occurred on account of the operation of the law of succession. In an analogous situation where a voluntary “substitution” of the locator occurred during the course of the term of lease, the rights and duties arising from the lease were not transferred to the incumbent locator. At the beginning of this chapter, it was proposed that an examination of the Roman jurists’ treatment of the issue of the death of one of the parties to the lease may provide some insight into the relationship between law and society. Lease had such widespread application in Roman society that if Roman law was a product of the society that produced it, the jurists’ treatment of this issue would take account of it. Unfortunately, this does not appear to have been the case. Roman law’s treatment of death of one of the contracting parties in the context of lease in no way suggests that this matter deserved special attention. If anything, a lack of juristic attention on this topic is evident. It is also clear that Roman law dealt with the legal consequences of death of one of the contracting parties in a peculiar way (through the law of succession) that is indicative of the internal logic through which law develops irrespective of social or economic needs.

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COMMERCE AND LAW

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8 Dealing with the Abyss: The Nature and Purpose of the Rhodian Sea-law on Jettison (Lex Rhodia De Iactu, D 14.2) and the Making of Justinian’s Digest J-J Aubert A. INTRODUCTION Soon a violent wind, called the northeaster, rushed down from Crete. Since the ship was caught and could not be turned head-on into the wind, we gave way to it and were driven. By running under the lee of a small island called Cauda [or Clauda] we were scarcely able to get the ship’s boat under control. After hoisting it they took measures to undergird the ship; then fearing that they would run on the Syrtis they lowered the sea anchor and so were driven. We were being pounded by the storm so violently that on the next day they began to throw the cargo overboard and on the third day with their own hands they threw the ship’s tackle overboard. When neither sun nor stars appeared for many days, and no small tempest raged, all hope of our being saved was at last abandoned.1

The apostle Paul’s journey from Caesarea to Rome did not stop with that. Drifting at sea for two weeks, the travellers, all 276 of them, ended up swimming to shore on the island of Malta after part of the crew had tried to leave in smaller boats and the food had eventually been thrown overboard in a last effort to rescue the ship from final destruction as it was run aground. If the description of Paul’s shipwreck is remarkable in its detail, the event it covers must have been rather banal throughout history. There was a lot of shipping carried out in Antiquity, especially in the Hellenistic and Roman periods, and in the last fifty years underwater archaeology has been steadily confirming what was already known through the literary sources: shipwreck (naufragium) was a fact of life, so much so that ancient laws could not escape taking it into account, developing legal arrangements regarding the consequences in the law of obligations (for both contracts and delicts) and the law of property. Roman law was no exception, as such titles as D 14.2 (De lege 1 Acts 27:14–20 (translation New Revised Standard Version).

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Rhodia de iactu) or D 47.9 (De incendio ruina naufragio rate nave expugnata) of Justinian’s Digest indicate.2 Obviously, the compilers did not think it relevant to group together all aspects of Roman maritime law – or commercial law in general – when they had a unique chance of doing so: ‘Roman commercial law’ is a modern concept, not an ancient one.3 Because of the universal nature of legal problems connected with shipwreck, the solutions proposed in classical Antiquity had a tremendous impact on the subsequent legal history of maritime law, to the effect that many commentators have discussed the various, though relatively few, Greek and Latin texts dealing with these issues.4 The purpose of this chapter is to look, once again, at Title 14.2 of Justinian’s Digest, although this is not the place to discuss the inspiring insights and puzzling errors of previous scholars, as the task has been done recently and – in my view – satisfactorily by Nathan Badoud, a graduate student at the universities of Neuchâtel and Bordeaux III, in his 2004 unpublished Master’s (DEA) thesis on the topic.5 Instead, the discussion will focus here on the diversity of the contents of the title, on its place within the Digest as a whole, and on its overall organisation, in order to look at some larger issues of Roman commercial law, and its relation to known economic and social realities of the ancient world. B. EXEGESIS OF D 14.2 AND PAULI SENTENTIAE 2.7 Title 14.2 is composed of ten excerpts from the work of well-known jurists ranging, chronologically, from Labeo in the Augustan period to Hermogenian 2 Of related interest are also D 4.9 (let seamen, innkeepers, and stablekeepers restore what they have received); D 47.5 (the action for theft against ships’ masters, innkeepers, and liverymen); D 14.1 (the action against the shipowner); D 22.2 (transmarine loans); and isolated excerpts such as D 19.2.13.1 and 19.2.31 (lease and hire). 3 Cf D Johnston, Roman Law in Context (1999) 77 (ch 5: Commerce); and the lively debate on the issue that took place at the conference “Diritto commerciale romano: tra didattica e ricerca”, Circolo Toscano Ugo Coli, Certosa di Pontignano, 12–14 January 2006, organised by Prof R Martini and Dr G Cossa. I plan to discuss this point further in a chapter of the forthcoming Cambridge Companion to Roman Law edited by D Johnston. 4 Cf R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990, repr with rev 1996) 406–412. 5 N Badoud, Le titre XIV,2 du Digeste de lege Rhodia de iactu (DEA thesis, Lausanne-Neuchâtel 2004). Special thanks go to Mr Badoud, my former pupil, who shared with me the results of his research. Even though I do not wholly agree with Badoud’s conclusion, I have relied on his thorough knowledge of the bibliography and his acute analysis of the text of D.14.2, and, as a result, this chapter owes more to his work than could be acknowledged in individual footnotes. The bibliography on the subject can also be traced through E Chevreau, “La lex Rhodia de iactu: un exemple de la réception d’une institution étrangère dans le droit romain” (2005) 73 TvR 67, esp 68, notes 7–8; G Purpura, “Ius naufragii, sylai e lex Rhodia. Genesi delle consuetudini marittime mediterranee” (2002) 47 Annali dell’Università di Palermo 275 and D Gourier, Le droit maritime romain (2004), which I have not seen.

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in the Diocletianic period. Those authors themselves cite earlier, late-Republican jurists such as Servius Sulpicius Rufus and his students Ofilius and Alfenus Varus, as well as stars like Massurius Sabinus or little known figures like Papirius Fronto. Title 14.2 is supplemented by another post-classical source, the Sententiae of Pseudo-Paul (an African writer dated around 300), which has come down to us through an independent channel, but which largely overlaps the text of the Digest, except on minor, though telling details. What is interesting here is that Pseudo-Paul is the author of one of the two excerpts that explicitly refer to the lex Rhodia, the other one being the text of a petition followed by an imperial rescript, transmitted by the mid-second-century jurist Volusius Maecianus. It is fair to say at the outset that in view of the fact that both excerpts may be – and have been – considered later interpolations, the whole concept of a “Rhodian” origin for the legal arrangement under consideration has repeatedly been questioned. The fact is that D 14.2.1, which provides the most basic and economical definition of the legal arrangement central to the whole title, cites a text by Paul that happens to have survived independently:6 Lege Rhodia cavetur ut si levandae navis gratia iactus mercium factus est omnium contributione sarciatur quod pro omnibus datum est. The lex Rhodia provides that if jettison of merchandises has been carried out in order to lighten the ship, everyone has to contribute to compensate what has been given up for the sake of all.

This text is to be set against the matching passage in the Sententiae (2.7.1): Levandae navis gratia iactus cum mercium factus est omnium intributione sarciatur quod pro omnibus iactum est.

Let us note that the explicit mention of the lex Rhodia is missing in the text of the Sententiae, although the alleged title [Ad legem Rhodiam], supplemented by the so-called Breviarium Alarici (dated to the early sixth century),7 justifies 6 G Purpura, “Ius naufragii” (n 5) 288–292 and notes 70–72, refers to a Latin inscription on a column in the harbour of Rhodes, to be dated on palaeographical grounds to the second or third century ad, and first published by G Marcou, “Nomos Rhodion Nautikos e la scoperta a Rodi di una colonna di marmo con l’iscrizione di Paolo (D 14 2)” in Studi in onore di Lefebvre D’Ovidio I (1995) 614 (non vidi). The text is a near-exact quotation of Paul’s definition: LEX RODIA (sic) CAVETVR VT SI LEVANDAE NAVIS GRATIA IACTVS MERCIVM FACTVM EST OMNIVM CONTRIBVTIONE SARCITVR (sic) QVOD PRO OMNIBVS DATVM EST. The nominative case (“lex Rodia”) with the passive voice (“cavetur”) is quite puzzling and unusual, and should raise suspicion about the inscription, unless the first two words are understood as the title of the following quotation (“Lex Rodia: cavetur ut”). An inadequate photograph is available online: www.archaeogate.it/iura/article.php?id=201. Cf Chevreau, “La lex Rhodia de iactu” (n 5) 71–72. 7 Also known as lex Romana Visigothorum (FIRA II2, 319–417).

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somewhat its absence in the text, while its appearance in D 14.2.1 can be explained as an adjustment by the compilers.8 Formally, on the basis of D 14.2.1 and Sententiae 2.7.1, the link between the law of contribution in case of jettison and the island of Rhodes is tenuous at best. Furthermore, it has been explained away as the trace of the development in the Byzantine period of a so-called Rhodian Sea-Law, expounded in the Basilica of Leo the Wise in the late ninth/early tenth centuries.9 The other excerpt (D 14.2.9) mentioning the lex Rhodia is problematic in its content, as we will see later on. The reference is actually twofold: 1. The title of the excerpted work is reportedly Volusius Maecianus’ ex lege Rhodia or “from his De lege Rhodia”. The inscription is somewhat unusual, perhaps less so if one looks at the excerpt placed directly above (D 14.2.8), ascribed to Julian’s libro secundo ex Minicio, the whole work in ten books (at least) being entitled Ad Minicium. 2. The petition itself is followed by the imperial rescript which specifies that the case of direptio ex naufragio can, may, or must be judged (krinesthô) according to Rhodian maritime law as long as it does not contradict Roman (praetorian, civil, or imperial) law, as a previous – or senior emperor – had already ascertained. Whatever the difficulties with the content of Maecianus’ excerpt, it is not unrealistic to think that at the time of the island’s political and economic splendour in the Hellenistic period, the Rhodians had developed some kind of customary law, if not specific legislation, dealing with the problems raised by what was then – and still is – perceived as one of their main economic activities, namely seaborn trade to, from or via the island. The problem is that this law is hard to reconstruct, for lack of evidence – even more so if one discards what seems to be available under the pretence of interpolation. What should draw our interest is not only the possibility of direct or indirect borrowing on the part of the Romans, but especially the way a Rhodian legal arrangement could have found its way into Roman law – which was undoubtedly the case at the time of the compilers, if not before – and the implication of such a model in our perception of Roman legal history. As Pseudo-Paul’s definition suggests, jettison calls for compensation on the part of those who did not suffer from it, provided that they had actually benefitted from it (“pro omnibus”). This is nothing less than an early form of cargo insurance. The real Paul, in so far as he is a different person in this 8 A Soubie, Recherches sur les origines des rubriques du Digeste (1960) 26, 32. 9 W Ashburner, Nomos Rhodion nautikos, The Rhodian Sea-Law (1909).

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case, is next called upon to specify what the general principle entails. In the thirty-fourth book of his Commentary on the praetorian edict (D 14.2.2), Paul reviews several situations in which the law of jettison applies: (a) The owners of the goods which have been jettisoned have a right to sue the captain (magister navis) on the basis of the contract of hire/lease (locatio conductio). Three conditions must be fulfilled explicitly for the legal remedy to apply: first, the plaintiffs must be the legitimate owners of the goods (amissarum mercium domini); second, they, as locatores, must have contracted with the captain, as conductor, for the transport of the goods, which means that the jettison of goods transported free of charge, either as a favour or stealthily, did not give rise to an action; third, jettison must have been carried out as the result of a crisis (laborante nave). This includes of course bad weather, but presumably not a brawl or mutiny. What about the effect of a structural dysfunction of the ship – if it could be detected or identified a posteriori? The liability of the captain – though the use of the term magister navis implies the liability of the shipper (exercitor) on the basis of the actio exercitoria discussed in D 14.1 – is undisputedly disproportionate if no fault can be ascribed to him. For that reason, the captain is then entitled to sue, on the basis of the same contract of hire and lease, those whose goods and belongings have been saved by the act of jettison. The point is that all are expected to chip in and share in the damage in proportion to something which is not clearly expounded. Without explicitly referring to the lex Rhodia and without using the word contributio/intributio, Paul shows the complexities of cases brought under the lex Rhodia. From what has been said, the Roman law of jettison is nothing but an extension of the modalities of the law of hire and lease (locatio conductio), as a result of very special and specific circumstances. (b) The practical aspect of contributio is discussed by means of a citation of Servius Sulpicius Rufus, which brings us back to the late Republican period, as a terminus ante quem. The passage suggests that the action brought against the captain must result in his seizing and holding the goods of the other transporters until they pay their share of the damage. The citation is quite problematic, as the jurist seemingly allows for non-compliance with this order on the part of the captain, who nevertheless retains his action against the transporters/passengers (vectores). It is avowedly a simple matter of practicality (commoditas). Let us note here that Servius speaks of an actio ex locato, while Paul refers to an actio ex conducto, which indicates that notwithstanding a corruption of the text – as the discrepancy between the Florentine manuscript on the one hand and secondary manuscripts or the Basilica on

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the other hand regarding the negation suggests – the context of the citation may be different. In Servius’ view, some passengers may not be transporters and carry little or no personal belongings at all, in which case they rent as conductores the space on the ship (as opposed to those transporters who have their goods transported). Even though the distinction is not classical, legal historians would speak of locatio operis faciendi versus conductio rei. Both Servius and Paul regard it as the expression of utmost fairness (“aequissimum”) that contributio is due only when the loss of material goods ensured the preservation and safekeeping of other material goods. In other words, it concerns real, movable property, not persons, slaves belonging – in principle at least – to the former category. It should perhaps be stressed that such an arrangement implies that Roman jurists considered that one’s physical safety could not be valued in monetary terms.10 Moreover, slaves lost at sea, like those who died of disease on board or committed suicide, were not to be counted as jettisoned goods, and consequently did not entitle their masters to compensation (D 14.2.2.5). Cicero, admittedly in a rhetorical context,11 alluded to the practice of throwing slaves overboard – the famous and perennial dilemma between an expensive horse and a worthless slave – and one would like to think that Servius/Paul introduced such a limitation in order to discourage such cruelty. (c) It is not too clear in D 14.2.2 where Servius’ citation ends – at the end of the preface or at the end of the title.12 The ambiguity is perhaps intentional as Servius’ authority and the antiquity of his opinion add some weight to Paul’s demonstration. Next the jurist draws the line at what damage should be taken into consideration. Wear and tear on the ship – or on any other tool of production, such as an anvil or a hammer – is no cause for contributio (collatio), but circumstances may have called for drastic measures: in the report of St Paul’s shipwreck in Acts 27:18–19, ekbolè is shortly followed by the discarding of the ship implements (skeuè tou ploiou), while the food – and presumably fresh water – is thrown overboard only weeks later (27:38). Had the ship been saved, the deliberate removal of the riggings would have qualified the shipowner for contributio, no less than ekbolè (the object of which is unspecified) and sitos. (d) As Acts 27 indicates, the ship may transport any combination of goods (or even a variety of them) and persons. Servius/Paul wonders (D 14.2.2.2) 10 D 14.2.2.2 (Paul, Edict 34): “corporum liberorum aestimationem nullam fieri posse”. 11 Cicero, De Officiis 3.23.89. N Badoud, Le titre XIV,2 du Digeste (n 5) 36, rightly recalls, among others, that Cicero refers here to the work of the stoic philosopher Hekaton of Rhodes, who was a pupil of Panaetius. 12 D 14.2.2.2 (Paul, Edict 34): “placuit” and “ex conducto dominos rerum amissarum cum nauta”.

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whether those who transport valuables of insignificant weight should be called upon to “iacturam praestare”, which I understand as to share in the damage (i.e., to make contributio),13 considering that everyone would have acknowledged that the jettison of pearls, for instance, would have brought little relief to the ship. Of course, both the shipowner and the pearls’ owner were to contribute on the basis of the respective monetary value of discarded and saved goods, including, for the latter, clothes and jewellery, but excluding food, considered common property in times of crisis.14 The pricing of lost property is based on the purchase value, not on resale value, the merchant’s potential profit (lucrum) being a matter of personal loss. Conversely, the pricing of saved property depends on its resale value, partially damaged goods being of a lower resale value than their purchase value (D 14.2.2.4). (e) In D 14.2.2.3, Servius, Ofilius and Labeo seem to extend the scope of the legal arrangement to the ransoming of the ship from pirates, whereby all passengers and most certainly the shipowner or his agent has to contribute. The ransomed ship undoubtedly includes its cargo and all the passengers’ personal belongings, otherwise it would be unreasonable to expect everybody to chip in for the sake of the shipper. Jettison (iactus) is no longer a necessary element for the legal arrangement to apply. Extension may not be the proper term, as one cannot rule out that the legal arrangement – whether it derives from a lex Rhodia or not – had developed simultaneously in connection with both shipwreck and piracy. Although there is no sign that it involves such a legal arrangement, the ransoming of Julius Caesar in 74 bc occurred on the island of Pharmacussa, off the coast of Asia Minor, while he was crossing to Rhodes:15 his companions and slaves were supposed to raise the money while he stayed behind with the pirates as a hostage. Interestingly, highway robbery is treated differently, and there is no analogy with seaborne trade. Travellers may have flocked together, but everyone was supposed to fend for himself. The ransoming of goods outside the context of a ship does not call for contributio. Paul’s long excerpt ends with three minor issues (D 14.2.2.6–8) concerning 1. passengers’ insolvency, not to be shouldered by the captain; 2. the reversibility of contributio, if jettisoned goods reappear later – in that case contributors have an actio ex locato against the captain for refund, 13 D 14.2.2pr (Paul, Edict 34): “donec portionem damni praestent”. 14 D 14.2.2.2 (Paul, Edict 34): “itidem agitatum est ... in commune conferret”. 15 Suetonius, Iulius Caesar 4, 74.1.

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while the captain has an actio ex conducto against the fortunate owners; and 3. the latter’s permanent right of ownership, excluding usucapio because jettisoned goods are not to be regarded as abandoned (derelictum). The reason why I dwell for so long on Paul’s views in D 14.2.2 is not because of its exotic character as an excerpt from classical jurisprudence. In fact, in spite of its length, it shows standard features: following the definition of the initial excerpt of the title (D 14.2.1), it presents a general case listing all the necessary components, then moves to a citation of a pre-classical jurist, builds on analogies,16 explores more complex situations, some smacking of the rhetor’s classroom (such as the case of the traveller carrying gemmae margaritae), others showing a really sophisticated approach to the problem of aestimatio (taking into consideration price variations), to conclude with secondary, though legally pregnant, issues (such as usucapio). What makes D 14.2.2 somewhat remarkable in this context (besides Ulpian’s conspicuous absence in the whole title, in spite of D 19.5.14) is the fact that it is excerpted from Paul’s Commentary on the Praetorian Edict, whereas it is evident that the lex Rhodia de iactu does not belong to the edict. In fact, as O Lenel’s Palingenesia suggests,17 Book 34 of Paul’s Commentary deals with the actio locati conducti. D 14.2 is, so far as we can see, nothing but a misplaced appendix to D 19.2, where the same work is excerpted several times.18 This is true too of other works excerpted in D 14.2: Alfenus’ liber tertius digestorum a Paulo epitomatorum;19 Labeo’s liber primus pithanon/pithanorum a Paulo epitomatorum;20 Paul’s liber secundus sententiarum;21 and Hermogenian’s liber secundus iuris epitomarum.22 The other excerpts included in D 14.2 do not help much to explain why the title on the lex Rhodia de iactu was not appended to the title on locatio conductio. Let us examine briefly a few of them: D 14.2.3 is a text from Papinian’s nineteenth book of Responsa. The excerpt Ad legem Rhodiam has been placed by Lenel just before texts dealing with De re militari, De appellationibus, or De tributis.23 There is obviously no thematic unity, and the lone excerpt de lege Rhodia de iactu belongs to the 16 17 18 19 20 21 22 23

D 14.2.2.1: “nam et si faber incudem aut malleum fregerit”. O Lenel, Palingenesia iuris civilis I (1889) 1038–1039, no 521. D 19.2.1, 19.2.20, 19.2. 22, and 19.2. 24. D 14.2.7 and D 19.2.30. D 14.2.10 and D 19.2.62. D 14.2.1 and D 19.2.55. D 14.2.5 and D 19.2.12 and 23. Lenel, Palingenesia I (n 17) 945, no 744.

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Varia. Actually, the text of D 14.2.3 is rather redundant with regard to D 14.2.2.1, as it merely specifies that contributio may derive from discarding the riggings of the ship (“arbor aut aliud navis instrumentum”), if it is done in order to remove a common danger (“removendi communis periculi causa”). D 14.2.4, on the other hand, is most substantial. Excerpted from Callistratus’ second book of Quaestiones, it is the second longest text of D 14.2. It deals with the transfer of goods from a big ship to smaller riverboats, the central notion of navis salva (a prerequisite for contributio, only marginally mentioned by Paul in D 14.2.2), the possibility of multiple consecutive disasters, the anecdotic intervention of urinatores (rescue divers), occasionally seen at work in an excavated shipwreck, such as the Madrague of Giens in southern France,24 and eventually gets into the technicalities of deteriorating goods and their ever fluctuating value as a basis of reckoning for contributio. Both Sabinus (twice) and Papirius Fronto are cited in reference. In Lenel’s Palingenesia,25 the excerpt is located next to a text concerning eviction in the context of the sale of real estate;26 and not too far from a text dealing with the related matter of direptio ex naufragio.27 D 14.2.6 is excerpted from Julian’s eighty-sixth book of Digesta and comments ad legem Rhodiam de iactu next to ad legem Aquiliam (D 9.2) and ad legem Iuliam de adulteriis (D 48.5).28 The series does not really make sense but for the fact that it deals with so-called leges. However, the connection between the lex Aquilia, concerned with physical damage inflicted to other people’s property, and the lex Rhodia de iactu is evident. The text deals with what sounds like a real, or at least realistic, case in view of the places mentioned: a ship was caught in a storm and had her rigging, mast and yard destroyed by a bolt of lightening. After emergency repairs in Hippo, in North Africa, she went on with her trip to Ostia and delivered her cargo without suffering any more damage. The question, which had already been answered in previous excerpts (D 14.2.2.1, and to some extent D 14.2.3 and 14.2.5.1), bears on whether the transporters (“hi quorum onus fuit”) should contribute to repair expenses. The answer is unsurprising:

24 A Tchernia, P Pomey and A Hesnard (eds), L’épave romaine de la Madrague de Giens (Var) (Gallia Supp 34) (1978) 29–31. Cf also E Nardi, “De urinatoribus, ovvero dei sub nell’antichità” (1984–1985) 73 Rendiconti dell’Accademia delle Scienze dell’Istituto di Bologna 51 (non vidi); and A Tchernia, “Les urinatores”, in Navires et commerces de la Méditerranée antique: hommage à Jean Rougé (1989) 33 Cahiers d’histoire 489. 25 Lenel, Palingenesia I (n 17) 102–103. 26 D 21.2.72; cf Lenel, Palingenesia I (n 17) 103, no 99. 27 D 47.9.7; cf Lenel, Palingenesia I (n 17) 103, no 107. 28 Lenel, Palingenesia I (n 17) 483, no 831, but I suspect a mistake.

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non debere: hic enim sumptus instruendae magis navis quam conservandarum mercium gratia factus est. it is not due: the expense was made to equip the ship rather than to save the cargo.

Real life legal practice is also meant to be reflected in Volusius Maecianus’ text briefly described earlier (D 14.2.9). Although the text has been considered spurious for many different reasons, it seems to me that Maecianus, in his capacity of secretary a libellis under Antoninus Pius, prefect of Egypt in the early 160s, and then legal counsellor of Marcus Aurelius and Lucius Varus, was best placed to unearth such a document and most likely to use it in his work. Nothing is known of the monograph De lege Rhodia, of which D 14.2.9 is the only known fragment.29 A provincial individual named Eudaimon of Nicomedia petitions the Emperor Antoninus (Antoninus Pius, Marcus Aurelius, or, less likely, Caracalla) to get redress from what is regarded as delinquent behaviour on the part of the local authorities (dèmosioi)30 after Eudaimon’s shipwreck on some Cycladic island (Icaria). Although the reply of the emperor explicitly refers to a Rhodian maritime “law” (nomos tôn Rhodiôn nautikos), the case deals, at best, only with a marginal aspect of the legal arrangement discussed by Paul: the status of shipwrecked goods. Eudaimon sues the dèmosioi for direptio ex naufragio, a practice perhaps common in ancient societies, which does not contradict the current opinion of other jurists, either Paul (D 14.2.2.8) or Julian (D 14.2.8), as long as the goods claimed by the dèmosioi have not been jettisoned, a point that the text does not specify. Both Paul and Julian insist on the fact that “res iacta domini manet” and “pro derelicto non habetur”. And Julian, in his second book Ad Minicium, discusses usucapio (acquisition of ownership through long-time possession in good faith). Let us note that Lenel connects this text with D 41.7.7 and places it just before D 45.1.62.31 While the former text discusses the very same topic as D 14.2.8 in the title pro derelicto, the latter deals with a slave asking the question in a stipulatio despite his master’s refusal, with the effect that the promissor contracts anyway an obligation toward the slave’s master. If D 14.2.9 seems to have a rather loose connection with the main aspect of the legal arrangement known as the lex Rhodia de iactu, namely contributio, 29 Lenel, Palingenesia I (n 17) 588, no 58. On Volusius Maecianus and his fragment in D 14.2.9, Cf N Badoud, Le titre XIV,2 du Digeste (n 5) 42. 30 Dèmosioi are more likely to be local public officials than public slaves: they are certainly not tax farmers (dèmosiônes). 31 Lenel, Palingenesia I (n 17) 486, nos 857–858.

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it is even more so with the tenth and last excerpt of title 14.2, which is mostly concerned with specific provisions in transportation contracts: price to be paid for the slaves who die during the trip, civil liability of the shipper who takes the initiative of transferring cargo from one ship to another not only without the customer’s consent and knowledge, but against his expressed will, and finally compared costs of bulk transport with unit-based tariffs. If D 14.2.10 does not shed much light on the lex Rhodia, it reminds us of our initial statement, that the title on the lex Rhodia de iactu is nothing but a misplaced appendix to the actio locati conducti. C. WHY HERE, BETWEEN D 14.1 AND 14.3? It has long been recognised that Justinian’s Digest is organised along the lines of the Perpetual Edict. The arrangement of books 14 and 15 that deal with the so-called actiones adiecticiae qualitatis largely confirms this impression. At the time of the completion of the Perpetual Edict by Julian (c 130), the lex Rhodia de iactu was certainly not part of the edict, and had never been; moreover, it was not included, and would never be, among the actiones adiecticiae qualitatis. Gaius shows that in his time (middle of the second century ad) the actio quod iussu, the actio exercitoria and the actio institoria were thought of as a group, since they engaged the liability in solidum of the principal (as opposed to the actiones de peculio et in rem verso and tributoria).32 In the Digest, this notion of group seems to be weakened by the inclusion of Title 14.2 between 14.1 and 14.3 and the removal of the actio quod iussu to the end of book 15. The nice arrangement in Gaius was obviously lost on the compilers, and probably before, considering the sequence attested in the Sententiae Pauli (2.6–2.10). It does not take much to find a common denominator between D 14.1 and D 14.2 or D 14.3. It is somewhat more difficult to connect logically D 14.2 and D 14.3, so we can be sure that the intruder is D 14.2. The link between D 14.1 and D 14.2 is the magister navis, the centrepiece of D 14.1, and a rather marginal character in D 14.2, since everything which is being said about him in D 14.2 could be valid if the nauta had been an independent shipper, exercitor or navicularius. Evidence for this goes back to a fourth-century bc comic poet, Diphilos of 32 Gai Inst 4.69–4.72.

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Sinope, who later inspired the Latin playwright Plautus: νακληρος ποθει τις εχν, ποβαλν τν στν  πηδλια συντρψας νες,  φορτ’ !ξ#ριψ’ $π#ραντλος γεν&μενος' φ(κα τν τοιο)τον. ο*θ#ν +δ#ως ποιε/ γ0ρ ο1τος, λλ’ 2σον ν&μου χριν' 3μο) δ4 τα/ς σπονδα/σι διαλογζεται το/ς συμπλ#ουσιν 3π&σον !πιβλλει μ#ρος τιθες, τ θ’ α$το) σπλγχν’ 6καστος !σθει. A shipper makes a sacrifice for his prayer, as he had thrown away the mast, broken his rudder, cast the cargo overboard, being overwhelmed by the waves. I avoid such a man, for he does nothing for fun, but everything for the sake of nomos [an ambiguous Greek word purposedly not translated here]. At the very moment of the libations, he reckons how much he will charge his fellow travellers, deciding on the value of each share; everyone will eat one’s own guts.33

In the Sententiae Pauli 2.6–2.8, the section on the lex Rhodia (2.7) is more detailed than the introductory section on both exercitores and institores (2.6, although only the former are concerned), and no less than the subsequent section on institores alone (2.8). All three sections, short or long, contain material not to be found in the Digest. In Sententiae 2.6, the filius familias operates a ship in compliance with his father’s will and makes him liable for “ea quae salva receperit” whatever that means, be it a reference to receptum nautarum (D 4.9) or else (if receperit has pater as subject). In Sententiae 2.7, we find the definition of contributio/intributio discussed earlier (2.7.1), then a provision concerning the liability of passengers for the equipment of the ship (2.7.2), quite in agreement with what is found in the Digest.34 This is not the case of the third provision (2.7.3), which sort of does away with the concept of navis salva, a concept which is then reaffirmed in the fourth and fifth ones (2.7.4–2.7.5). In Sententiae 2.8, all three paragraphs deal with the scope of the appointment of the agent, and the latter’s profile. In fact, most, if not the whole, of D 14.1 and 14.3 is concerned with the tricky and consequential question of the scope of the agent’s appointment. Most telling are 33 Diphilos of Sinope, Zôgraphos, frag Kock CAF II, 540 = PCG V, 73–74 (42.10–42.17). I owe this reference to N Badoud, Le titre XIV,2 du Digeste (n 5) 40, who translates nomos as “coutume”. There is a lively debate on the question of whether nomos should refer exclusively to written law in the classical and Hellenistic period; cf R Thomas, “Writing, law, and written law,” in M Gagarin and D Cohen (ed), The Cambridge Companion to Ancient Greek Law (2005) 41, 51, notes 27, 57 and 59. I owe this point and the reference to Thomas’ article to Mr Jason Governale, Columbia University. In Volusius Maecianus’ excerpt cited above (D 14.2.9), nomos undoubtedly translates the Latin lex, with all its ambiguities. 34 D 14.2.2.1 (Ulpian, Edict 34); D 14.2.3 (Papinian, Replies 19); D 14.2.5.1 (Hermogenian, Epitome of the Law 2); and D 14.2.6 (Julian, Digest 86).

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two passages which can be viewed as complementary in this regard: 1. In D 14.1.1.12, Ulpian, in a commentary on the edict, describes the certa lex praepositionis, “drafted” for the sake of would-be contractors, the purpose of which is to define the activities/operations of the agent for which the principal would be held liable in solidum as an effect of the praepositio.35 2. In D 14.3.11.2–6, the same Ulpian, in the same twenty-eighth book of his commentary, describes how the praepositio can be restricted through proscriptio, in the material form of a charter to be posted claris litteris, unde de plano recte legi possit, ante tabernam scilicet vel ante eum locum in quo negotiatio exercetur, non in loco remoto, sed in evidenti. Litteris utrum Graecis an Latinis? puto secundum loci condicionem, ne quis causari possit ignorantiam litterarum. Certe si quis dicat ignorasse se litteras vel non observasse quod propositum erat, cum multi legerent cumque palam esset propositum, non audietur. in clear letters, where it can be read at eye-level, in front of the shop, of course, or of the place where business is conducted, not in a remote spot, but quite in full view. Should it be written in Greek or in Latin? In my opinion, according to the place, lest someone could make excuse of his illiteracy. Indeed, if someone pretends that he is illiterate or that he has not seen what had been posted, although many had read it and the poster had been obvious, he will not be given a hearing.

In the best of all worlds, managers – or rather their principals – would be able to design perfect charters, leges praepositionis, occasionally qualified by partial or total proscriptiones (forbidding specific deals or business of any sort), or extended by explicit and precise orders (iussus/iussa) in order to anticipate all possible cases and situations potentially leading to litigation. This is what we call a job description, or lex contractus. In any pre-industrial society, such explicit, diverse, colourful and comprehensive documents were simply hard to find on a regular basis, although counter-examples easily come to mind, such as the lex Puteolana parieti faciendo or the lex libitinaria Puteolana, both from late second or first century bc Puteoli.36 In most cases, people must have relied on common sense and/or customary law. I would like 35 D 14.1.1.12 (Ulpian, Edict 28): “Igitur praepositio certam legem dat contrahentibus.” 36 Cf J-J Aubert (ed), Tâches publiques et entreprise privée dans le monde romain (2003) 9–12 and 19–25; and Aubert, “L’estampillage des briques et des tuiles: une explication juridique fondée sur une approche globale,” in C Bruun (ed), Interpretare in bolli laterizi di Roma e della valle del Tevere: Produzione, storia economica e topografia, Atti del Convegno all’Ecole Française de Rome e all’Institutum Romanum Finlandiae, 31 marzo e 1 aprile 2000, organizzato da Christer Bruun e François Chausson (Acta Instituti Romani Finlandiae 32) (2005) 53. Cf also P J du Plessis, “Between theory and practice: new perspectives on the Roman law of letting and hiring” (2006) 65 CLJ 423, 433.

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to suggest here that the lex Rhodia de iactu belongs to this category of leges. It is admittedly different from popular statutes, but it reflects the accumulation of experience in the context of sea-travelling, and deals with all the accidents that such an activity entails. Squeezed between D 14.1 and 14.3, D 14.2 on the lex Rhodia de iactu is the certa lex of the magister navis by default, within the context of his legal relationship with his customers and to some extent his principal, on the basis of which he is entitled to sue and be sued, to hold property, his and others’, and to manage it for the benefit of his customers and himself. The early history of the lex Rhodia de iactu, illustrated by D 14.2 and Sententiae Pauli 2.7 in classical Antiquity, its reception in the Byzantine period, and its adoption in later maritime regulations show that the scope of the law of jettison tends to vary over time.37 The perceptible trend, already suggested in my reading of D 14.2, is a movement from the specific, narrow and rather strict application towards a wider, more flexible, and gradually encompassing use. This is compatible with what I consider the most likely historical development of the actiones adiecticiae qualitatis, from the limited scope of the earlier actio quod iussu, open to persons in power for a specific, controlled activity entailing the total liability of the principal, to the nearly unlimited scope of the somewhat later actiones institoria, exercitoria, de peculio et de in rem verso, and tributoria.38 And if one looks at Gaius’ Institutes 4.69 and following, this is precisely the story that he tells us. D. CONCLUSION The so-called lex Rhodia de iactu amounts to something more than just the topic of a misplaced appendix within a late Roman compilation, the making of which had both salutary and devastating effects upon the conservation of the works of classical jurists. It represents above all the possible leftover of a set of very old maritime customs going back to pre-Roman times as a practical response to the consequences of many a storm.39 It probably 37 The literature on this development is quite extensive. Cf Zimmermann, Obligations (n 4) 409– 412, mostly 409: “The history of the lex Rhodia de iactu can be told as one of gradual extension” and “In the Middle Ages the lex Rhodia began to be applied beyond the area of maritime law” with reference to G Wesener, “Von der Lex Rhodia de iactu zum §1043 ABGB”, in Recht und Wirtschaft in Geschichte und Gegenwart. Festschrift für Johannes Bärmann zum 70. Geburtstag (1975) 31. Cf also N Badoud, Le titre XIV,2 du Digeste (n 5) 1–4. 38 Cf A Petrucci, “Ulteriori osservazioni sulla protezione dei contraenti con gli institores ed i magistri navis nel diritto romano dell’età commerciale,” (2002) 53 Iura 17. 39 Chevreau, “La lex Rhodia de iactu” (n 5) 68 (“Dans un tel contexte, il paraît opportun d’envisager l’utilisation par Rome d’usages commerciaux et maritimes étrangers, réunis sous la dénomination

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developed in Eastern Mediterranean harbour cities, if the collective memory of ancient writers is to be trusted. It provided the framework within which legal arrangements based on good faith were devised among economic agents who were unlikely to be familiar with courts of law. It also reflects a culture that was too formalistic to allow for the concept of direct agency to arise, or to recognise contracts made without the explicit consent of the parties. As a matter of fact, the lex Rhodia de iactu may be one of the most disputed topics of Roman private law, although the problems raised by the texts which have been preserved tend to be more historical than juristic. This is due, of course, to the nature and importance of the economic context (sea trade) within which the rather complex system described in those ten excerpts collected in D 14.2 developed. The propensity of the legal arrangement referred to as contributio to further expand and adjust to new conditions and circumstances unavoidably constitutes a key factor in explaining its success as an institution and its subsequent notoriousness among legal and economic historians.40 Because of the heterogeneous, elliptic, though somewhat redundant nature of the texts preserved in D 14.2, ancient and modern commentators have looked for opportunities to reconstruct the system of contributio as a whole and to identify how it was practically applied in various circumstances. The alleged, reconstructed origin and history of the legal arrangement naturally bear on this double quest. There is no doubt that classical and postclassical jurists, as well as the Justinianic compilers, could count on a better textual basis than modern legal historians do, both in quantitative and qualitative terms, mostly because the excerpts which survived could still be read in context in Antiquity. It is quite possible, too, that documents dealing with, or reflecting, practical situations in which the provisions of the lex Rhodia de iactu as lex contractus applied could be found in Antiquity. One would have to look for them among contracts, riders, judicial reports or individual petitions such as Eudaimon of Nicomedia’s, as it was seemingly unearthed by Volusius Maecianus for the sake of his argument.41 Until further notice, lex Rhodia de iactu”); 73 (lex dicta, lex privata, lex mercatoria); and 79 (where the author concludes to the reception in Roman Law of the Greek principle of contributio, short of a technical borrowing: “assimilation du principe, mais absence de réception technique;” contra, Purpura, “Ius naufragii” (n 5) 275 (“Non solo è inveterato, quanto errato, l’uso di considerare la legge rodia una sorta di contenitore di pratiche marine di qualsiasi tipo, ma se vi fu, come è assai probabile, una specifica legge rodia del mare”) and 292 (“Non solo la legge rodia non fu una sorta di raccolta di usanze marine di qualsiasi tipo”), despite Isidore of Seville, Origines sive Etymologiae, 5.17 (quoted note 75): “De Legibus Rhodiis, Rhodiae leges navalium commerciorum sunt, ab insula Rhodo cognominatae, in qua antiquitus mercatorum usus fuit.” 40 The comprehensive bibliography compiled by Badoud is a proof of it. 41 Volusius Maecianus (ex lege Rhodia) D 14.2.9: (7Aξωσις Ε*δαμονος Νικομηδ#ως πρς 7Aντων/νον βασιλ/#α').

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it seems that nothing of the documentary evidence of this kind has survived or has yet been discovered. Consequently, legal historians have no choice but to focus on the theoretical aspects of the system, the coherence, or nearcoherence, of which may be postulated – at one time, at least. Alternatively, it is tempting to infer from the reconstruction of the whole system the way it was applied in real life, by rephrasing as precisely and accurately as can be the issues that the jurists were trying to address through a casuistic approach. The former pursuit deals with the history of ideas, the latter with economic and social history. In either case, the result is the making of a model. Every excerpt raises a question or a set of questions, and the sheer length of some of these excerpts ensures that these questions are often tricky, not to say somewhat marginal, and that is precisely what makes them so interesting. However, text criticism and analysis remains a necessary, preliminary step. The traditional philological approach, whether it leads to a hunt for interpolations or heeds and favours the lectio difficilior, can and should be topped off with a more literary examination: in so far as biblical scholars have learned to read the Bible as literature, endowed with its own aesthetics and conventions, legal historians and classicists should try to look at the Digest, the Codes, and all remaining legal compendia as literary works in themselves, belonging to the genre of technical literature, with their own internal organisation, to be identified in one way or another. D 14.2 on the lex Rhodia de iactu should be viewed as a necessary, complementary component for the transition between D 14.1 on the actio exercitoria and D 14.3 on the actio institoria, within the larger issue of indirect agency reflected by the praetorian remedies called actiones adiecticiae qualitatis. Such a reading implies some level of trust on the part of the reader in the logic of the compilers. It also compels the same reader to justify rationally the seeming inconsistency of the sequence (D 14.1–2–3). The present interpretation of D 14.2 mainly rests upon intratextual, and to a lesser extent intertextual, considerations. Speculation has little part in it, and the conclusion to be reached is rather positive, in that it seems to be possible to account for every single piece of information of historical nature transmitted by the texts, and to fit it into the larger picture of ancient maritime law, without resorting to textual hypercriticism or to a negative evaluation of the work of classical jurists or late antique compilers. Let us hope that the model proposed here – for it is just a model – can hold water.

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9 Suing the Paterfamilias: Theory and Practice D Johnston A. INTRODUCTION “Roman law: reality and context” was the theme of the conference at which this chapter was given as a paper. It discusses briefly only two remedies in Roman law in relation to slaves and their legal capacity to contract and hold property. The reason for doing so is that this is a topic which focuses sharply the divergent pressures of legal doctrine (on the one hand) and economic utility (on the other). At the most general level it is quite clear that within this area pure legal doctrine did give way to some extent to the demands of practicality. Legal doctrine in its uncontaminated form held to two most inconvenient principles. First, that a slave was a non-person. Strict application of this principle would mean that the slave’s acts could have no significance in terms of creating legal relations between his or her owner and anyone else. But a moment’s thought is enough to reach the conclusion that that deprives slaves of what could otherwise be economic value. A second obstacle is expressed in Gaius’ words that our condition can be made better through our slaves, but not worse.1 That principle is perfectly unobjectionable in theory but, since trade is bilateral, strict adherence to the principle would have the result that trade could never be conducted through slaves. In short, for slaves to be put to good use it was necessary that the pure stream of jurisprudence should become contaminated by the raw untreated demands of practicality. This chapter attempts to do no more than explore the extent to which inroads into principle took place by reference to two remedies introduced in Roman law for acts done by slaves. B. PECULIUM The central institution in this context is the peculium. As is well known, the significance of a slave’s peculium is that the slave’s owner could be sued on 1 “Melior condicio nostra per servos fieri potest, deterior fieri non potest”: D 50.17.133 (Gaius, Provincial Edict 8).

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account of the slave’s dealings for up to but no more than the value of the peculium. For these purposes it did not matter whether or not the owner knew of or consented to his slave’s transaction. There are a number of points at which we immediately find the need for principle to be moderated in favour of the demands of practice. The first arises from the fact that a slave could not be sued personally, so the issue was how far he should make it possible for someone else, the slave’s owner, to be sued. Here there are countervailing considerations: on the one hand, the only reason anybody would be willing to deal with a slave would be because of his owner’s liability up to the value of the peculium. On the other, the whole point of the peculium regime was to limit the owner’s liability. For the slave to be of utility in trade or commerce, it is necessary for the owner to have some liability but not too much. The second point is that, since a slave was a non-person, all property belonged to the slave’s owner, whether or not it was in the peculium. But somehow rules had to be drawn up to allow these two types of an individual owner’s property to be treated differently. In particular, if the peculium system was to work, it was necessary once litigation was in prospect for there to be some restriction on the freedom of owners to arrange and rearrange their affairs between property inside and outside a peculium. We can gain some impression how this worked by looking at three texts from the Digest.2 Before that it makes sense to look at the formula as reconstructed by Lenel. There is no single formula; the peculiarity of the action is that in the final part of the formula the judge is instructed to give judgment up to a maximum of the amount in the peculium. The formulae for all contractual obligations could be modified from their ordinary form so as to proceed only up to the value of the peculium. Here is the formula for the action on the contract of deposit (actio depositi), limited to the peculium and reconstructed by Otto Lenel, together with a (non-literal) translation:3 Quod Aulus Agerius apud Stichum, qui Numerii Negidii potestate est, mensam argenteam deposuit, qua de re agitur quidquid ob eam rem Stichum, si liber esset ex iure Quiritium, Aulo Agerio dare facere oporteret ex fide bona, eius iudex Numerium Negidium Aulo Agerio dumtaxat de peculio et si quid dolo malo Numerii Negidii factum est quo minus peculii esset, vel si quid in rem Numerii Negidii inde versum est condemna, si non paret absolve. Whereas AA deposited a silver table which is the subject of this action with Stichus, 2 For a slightly extended discussion of some of these points, cf. D Johnston, “Peculiar questions”, in P McKechnie (ed), Thinking Like a Lawyer: Essays on Legal History and General History for John Crook on his Eightieth Birthday (2002) 5. 3 O Lenel, Das Edictum Perpetuum, 3rd edn (1927) 282.

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who is in the power of NN, whatever Stichus ought, if he were free under civil law, to give or to do for AA as a matter of good faith, for so much let the judge condemn NN to AA up to the amount of the peculium plus anything which by the fraud of NN has been removed from the peculium or anything which has been turned from there to the benefit of NN; if it does not so appear let him absolve him.

The formula directs the judge’s attention to three questions, so far as quantifying Aulus Agerius’ claim is concerned: first, the amount in the peculium; second, the amount of any property which has been fraudulently removed by Numerius Negidius from the peculium; third, the amount of any benefit which has flowed to Numerius Negidius from the transaction. On this last point all that need be said here is that, regardless of the value of the peculium, if a creditor could prove that financial benefit had flowed to the owner (in rem versum) through the transaction in question, he was entitled to have recourse against the owner to the extent of that benefit.4 The result is that the value of the peculium was decisive only where it could not be proved that the owner had obtained a personal benefit from the transaction. To turn to the texts: Paul book 4 ad Sabinum, D 15.1.8: non statim quod dominus voluit ex re sua peculii esse peculium fecit, sed si tradidit aut cum apud eum esset pro tradito habuit. Desiderat enim res naturalem dationem. Contra autem simul atque noluit peculium servi desinit peculium esse. An owner cannot immediately make his property into peculium by mere intention but if he delivers it or holds it as delivered, for it requires an actual transfer. On the other hand, the peculium of a slave ceases to be a peculium as soon as the owner wishes.

The doctrine that it is enough for the owner nolle, not to wish, that something be part of the peculium for it to cease to be so is consistent with the fact that all of the property belongs to the slave’s owner, and he is quite free to arrange his property as he sees fit. But once again, in practice and where trading partners are concerned, the pure doctrine is problematic. The difficulty is that, if property can be removed from the peculium by mere nolle, then it is not obvious how a creditor can ever persuade a judge that property which the owner claims was not in the peculium actually was. For the system to work there has to be something more. Some of the texts indicate the importance of accounts, rationes, for these purposes. In the definitions of peculium advanced by various jurists there emerges the key point that its accounts are kept separately from those for the rest of the owner’s patrimony.5 4 For recent discussion, T Chiusi, Die actio de in rem verso im römischen Recht (2001). 5 Cf R M Thilo, Der codex accepti et expensi im römischen Recht (1980) 137–139.

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D 15.1.5, Ulpian, book 29 ad edictum: peculium autem Tubero quidem sic definit, ut Celsus libro sexto digestorum refert, quod servus domini permissu separatum a rationibus dominicis habet, deducto inde si quid domino debetur. Tubero, as Celsus reports him in book 6 of his digesta, defines the “peculium” as what a slave with his owner’s permission keeps separately from his owner’s accounts, less anything owed to the owner. D 15.1.4pr., Pomponius book 7 ad Sabinum: peculii est non id cuius servus seorsum a domini rationem habuerit sed quod dominus ipse separaverit suam a servi rationem discernens: nam cum servi peculium totum adimere vel augere vel minuere dominus possit, animadvertendum est non quid servus sed quid dominus constituendi servilis peculii gratia fecerit. Sed hoc ita verum puto, si debito servum liberare voluit dominus, ut etiamsi nuda voluntate remiserit dominus quod debuerit desinat servus debitor esse. si vero nomina ita fecerit dominus ut quasi debitorem se servo faceret cum re vera debitor non esset, contra puto: re enim non verbis peculium augendum est. What falls within the peculium is not what a slave keeps accounts for separately from his owner, but what the owner himself has separated, dividing his own accounts from those of his slave. Since the owner can remove entirely, increase or reduce the slave’s peculium, what has to be considered is not what the slave did but what the owner did in order to establish the slave’s peculium. I think it is true, if the owner wished to release his slave from a debt, that by mere intention the owner may release the debt so that the slave ceases to be his debtor. On the other hand, it is the opposite if the owner has recorded debts so as to appear to be indebted to his slave when actually he is not: for the peculium must be increased by facts not words.

From these tests we can draw some general conclusions: 1. A preliminary point is that all of this discussion needs to be seen against the background of Ulpian’s observation that we misuse (abutimur) the term “owe” (debere) in applying it in this context, but that the intention is to refer to the factual rather than the legal position.6 2. So far as transactions between a slave and third parties are concerned, although there appears to be no compelling evidence on the point, it seems likely that a judge would be entitled to conclude that a particular piece of property or a particular debt fell within the peculium if all the evidence – in particular the relevant accounts – suggested so, and the only contrary evidence was the owner’s assertion. Here, as often, we are let down by the fact that the jurists are not much interested in questions of evidence or proof. 3. Matters are more complicated where relations between slave and slaveowners are concerned. The fact that something is mentioned in the 6 D 15.1.41 (Ulpian, Sabinus 43).

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accounts does not necessarily mean much in itself. It is just a piece of evidence. The texts are quite clear that a debt due to the peculium is not created simply by being entered into the accounts: it is created only by a legal transaction which properly gives rise to indebtedness. That emerges from the text taken from Pomponius and elsewhere.7 The conclusion therefore must be that a creditor could not tell, purely by requesting the slave’s accounts, whether they accurately stated the value of the peculium. He might have to seek further details about certain transactions in order to form a view as to whether indebtedness to the peculium was genuine or fictitious. In any case, the Roman creditor would have been well advised to deduct any apparent indebtedness to the peculium by the slave’s owner, since the slave-owner was always entitled as a first charge against the peculium to deduct any debts the peculium owed to him. As Digest title 15.1 shows, there were quite elaborate rules about what the owner was allowed to deduct.8 Consequently, before entering into a transaction with a slave, a creditor ought always to have assessed the creditworthiness of the peculium net of these deductions, since under no circumstances would he be able to rely on notional indebtedness between slave and owner if a contract ended in litigation. Again, although evidence is in short supply, it seems reasonable to conclude that, in valuing the peculium, a judge would have regard not just to the owner’s assertion as to what was in the peculium but also to the relevant rationes. The second question focused in the formula is about property which through the owner’s fraud has ceased to be within the peculium. D 15.1.21pr, Ulpian book 29 ad edictum: summa cum ratione etiam hoc peculio praetor imputavit quod malo domini factum est quo minus in peculio esset. Sed dolum malum accipere debemus si ei ademit peculium: sed et si eum intricare peculium in necem creditorum passus est, Mela scribit dolo malo eius factum. Sed et si quis cum suspicaretur alium secum acturum alio peculium avertat, dolo non caret. Sed si alii solvit, non dubito de hoc quin non teneatur, quoniam creditori solvitur et licet creditori vigilare ad suum consequendum. With good reason the praetor also imputes to the peculium property which ceased to be in it as a result of the fraud of the owner. We must regard it as fraud if the owner takes away the peculium, and also (as Mela writes) if he allows the slave so to entangle the peculium as to prejudice the interests of creditors. If someone suspects he is going to be sued and diverts the peculium to someone else, he is 7 D 15.1.49.2 (Pomponius, Quintus Mucius 4); cf Thilo, Codex (n 5) 147–149. 8 For instance, in relation to theft only the simple value of the theft rather than the penalties was deductible: D 15.1.9.6 (Ulpian, Edict 29); no deduction could be made for injuries inflicted by the slave on himself: D 15.1.9.7 (Ulpian, Edict 29).

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fraudulent. But if he pays a creditor, I am in no doubt that he is not liable, since payment is made to a creditor and it is open to creditors to look out to obtain what is due to them.

The significance of the fraud provisions of the formula is not that property which left the peculium is brought back into it, but just that its value is taken into account in calculating the total extent of the owner’s liability.9 This is a liability based on dolus, fraud. From that it follows: first, that by analogy with the action de dolo the “imputation” would extend only for one year from the date of the fraudulent act; and second, that dolus, that is fraudulent intent on the part of the owner, would have to be proved. The requirement to prove fraud is always a serious restriction on a remedy. Among the jurists in this context there is virtually no discussion of what would and would not amount to dolus. This issue again raises sharply the question of legal doctrine. The property in the peculium belonged, after all, to the slave-owner. Taking the slave’s peculium away is something that was perfectly within his legitimate power and might be perfectly innocuous: suppose, for example, that the slave had not been trading profitably and it was desired to let a different slave take over. As with any other remedy based on fraud, it would therefore be necessary to prove circumstances which showed that the removal of the peculium could not have been done for any legitimate reason but only for fraudulent purposes. This is a point which appears to be taken for granted by the jurists, and there is therefore no substantial discussion of it either in connection with the peculium or in connection with fraud in general. If even removal of the peculium imposed a burden of proof on the creditor which might in certain circumstances be difficult to discharge, allowing a slave so to entangle the peculium as to cause disadvantage to creditors must have been much more difficult to establish. How would it work? The bolstering of the peculium’s balance sheet by creating fictitious debts due to it (mentioned by Ulpian) does not seem to fit the bill well, since in reality there was no property that was being fraudulently removed: it was never there in the first place. The most obvious manner of intricare would be to devise a peculium for a principal slave in which there were several other slaves each with his own sub-peculium. Ordinarily, a creditor would be able to have recourse only against the peculium of the slave with whom he had dealt: if he had had no dealings with the principal slave, then he could not have recourse against him, unless the principal slave knew of the transaction and could therefore 9 Cf W W Buckland, The Roman Law of Slavery (1908) 218–220.

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be sued by another action.10 Add a sprinkling of transactions between one sub (or sub-sub) peculium and another, and the potential for complexity is as promising as that of the corporate groups with which we are nowadays familiar. But it is still not easy to see how these perfectly legitimate means of containing liability could be proved to be fraudulent, except on rather exceptional facts. In considering the efficacy of the peculium-based remedies, we need therefore to keep in mind the difficulty a creditor might face in establishing when it mattered that there was actually a peculium and that it contained assets sufficient to meet his claim. Of course this is not a difficulty that was unique to ancient Rome and which has since been overcome: creditors of Enron and WorldCom faced the same difficulties. Even audited accounts are no substitute for the clear vision afforded by hindsight. The Roman rules do, however, seem relatively generous to slave-owner’s property no doubt reflecting both the fact that as a matter of law the property was the slave-owner’s property and a reluctance to break with the principle that slaves should not affect their owners’ position adversely. C. ACTIO EXERCITORIA In his Institutes Gaius refers to other actions which were available against a slave-owner or paterfamilias in relation to acts done by his slave or dependent child. It is a passage of particular interest, which appears to be written from a viewpoint less theoretical and more orientated towards practice than we would normally expect in juristic writing. Gaius refers to the actions quod iussu, institoria and exercitoria and explains that, where he has one of these actions by which he can recover in full, nobody will be so stupid as to put himself to the trouble of proving that the person with whom he dealt had a peculium and that his claim can be satisfied out of the amount in the peculium.11 It is true that Gaius is not suggesting that the actio de peculio is so problematic that it should be avoided unless all else fails, since in the very next paragraph he points out that it is sometimes preferable to the actio tributoria.12 The reason for that is that the actio de peculio is limited only by the total 10 See, e.g., D 14.1.1.19 (Ulpian, Edict 28), and D Johnston, “Law and commercial life of Rome” (1997) 43 Proceedings of the Cambridge Philological Society 53–65. 11 Gai Inst 4.74 “sed nemo tam stultus erit, ut qui aliqua illarum actionum sine dubio solidum consequi possit, vel in difficultaten se deducat probandi habere peculium eum cum quo contraxerit exque eo peculio posse sibi satis fieri vel id quod persequitur in rem patris dominive versum esse.” 12 Gai Inst 4.47a.

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value of the peculium, while the actio tributoria is limited by the amount of the peculium that is being used in relation to the particular business (merx peculiaris). It is fair to say that Gaius’ main practical concern is not about the ease with which a successful claim may be made but about its quantum. This does, however, raise the question how readily a creditor could succeed in one of the other possible actions.13 In relation to that question, a full discussion cannot be attempted here but only some short observations on the actio exercitoria. This lay against the operator of a ship in relation to acts done by the ship’s captain or magister. Until now we have looked only at the action based on the peculium; the limitation of a claim to the amount held in the peculium applied as long as the owner did not know of the transaction which was being entered into. Different considerations applied if the owner did know, or had authorised a transaction or instructed it expressly, or had set the slave or child up to operate a ship or carry on a particular kind of business. Ulpian’s discussion of the actio exercitoria explores the various permutations. D 14.1.1.19, Ulpian 28 ad edictum: Si is qui navem exercuerit in aliena potestate erit eiusque voluntate navem exercuerit iudicium datur. (20) Licet autem detur actio in eum cuius in potestate est qui navem exercet tamen ita demum datur si voluntate eius exerceat. … (22) Si tamen servus peculiaris volente filio familias in cuius peculio erat vel servo vicario eius navem exercuit pater dominusve qui voluntatem non accommodavit dumtaxat de peculio tenebitur sed filius ipse in solidum. Plane si voluntate domini vel patris exerceant in solidum tenebuntur et praeterea et filius, si et ipse voluntatem accommodavit, in solidum erit obligatus. If a ship operator (exercitor) is in another’s power (potestas) and operates the ship by his will, an action is given against the paterfamilias in relation to dealing with the ship’s captain, (20) But an action is only given against the operator’s paterfamilias, if the operator by the will of the paterfamilias. … (22) If a ship is operated by a slave held in a peculium by the will of the filiusfamilias or slave whose peculium it is, a paterfamilias or owner who did not lend his will to the operation is liable only up to the amount in the peculium, although the filiusfamilias is liable without limit. Clearly if they operate by the will of the owner or paterfamilias, then they are liable without limit. The filiusfamilias is also liable without limit if he lent his will to the operation.

The focus in this passage is firmly on voluntas, will. As paragraph (22) makes clear, what it comes down to in the end is this: 1. A paterfamilias or owner is liable for what the ship operator does in full only if the operation of the ship take place by his will. 13 On these in their social context, see in particular J-J Aubert, Business Managers in Ancient Rome: a Social and Economic Study of Institores 200 BC–AD 250 (1994); T Chiusi, Contributo allo studio dell’editto “de tributoria actione” (1993).

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2. If he knows nothing about the operation, then he is liable in accordance with the rules on peculium only up to the amount in the ship operator’s peculium. 3. If he knows of the operation but it does not take place by his will, Ulpian makes clear elsewhere14 that this is not regarded as equivalent to voluntas, so his liability is still limited by the amount in the peculium. 4. The paragraph introduces a further complexity, the case of a ship operator who is himself held within the peculium of a child or other slave. The principles here are precisely the same: if it is by the will of the son or principal slave (servus ordinarius as opposed to vicarius) that the operation take place, then he is liable in full – the only difference being that “in full” here necessarily means up to the value of his own peculium. On the other hand if it is not by their will, then the liability extends only up to the amount in the subpeculium, the operator’s own peculium. About this general structure two broad points may be made, one about commerce and the other about law. First (on commerce) the effect of these rules appears to be that the paterfamilias could enjoy limited liability for what his slave or child did only as long as he remained at arm’s length from the business, appointed them to do nothing, authorised nothing and knew nothing. That is not as difficult to achieve as it may sound when a slave’s peculium could contain other slaves who might have their own peculia. By that means it is possible to end up with a situation in which the lowest slaves in the hierarchy of peculia are quite far removed from the paterfamilias, certainly institutionally and quite possibly geographically as well. This makes it plausible to imagine that the paterfamilias would in some instances know or intend too little to be held liable in full and would therefore be exposed to liability only to the extent of the property contained in the relevant peculium. There is plenty of evidence in the Digest and elsewhere of aristocratic disdain for involvement in trade. There were also restrictions on the extent to which senators could engage in trade. This picture – of keeping a safe distance from trade – is complemented by the conclusions drawn from the legal sources: not simply (as is well known) that it was possible to trade by means of intermediaries, but also that there were positive advantages to be had from doing so. This is an instance in which the legal rules correspond to what we know from other sources about the realities of Roman life and the requirements at least of its more prosperous citizens. Second (on law), what is most striking in Ulpian’s text is that the borderline 14 D 14.1.1.20 (Ulpian, Edict 28).

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in relation to the availability of the remedies is drawn between will on the one hand and ignorance on the other. The texts indicate that if the paterfamilias was entirely ignorant of the ship’s operation he was exposed only to the actio de peculio. On the other hand if he knew about the operation, he was exposed to the actio tributoria.15 But for unlimited liability to attach to him he needed not just to know but to intend that the ship be operated. It is remarkable that there appears to be no discussion in the Digest about voluntas and how it is to be demonstrated, even though it was the key to being able to recover in full from the ultimate owner of the ship. As Ulpian explains,16 there is not always time to check up on the standing of a ship’s captain before the vessel sails, so it is important that recourse against the ship’s operator (exercitor) be possible. But it is in precisely these circumstances that one might think it appropriate to bring home liability to the owner as long as he knew what his son or slave was doing. Looking at the matter from a practical or commercial angle, it is difficult (first) to see how you could tell the difference between an owner who knew his slave was operating a vessel and one who intended that he should do so; and (second) what the justification is for imposing unlimited liability only in the second case. Given that Ulpian is keen to stress the utilitas of the present edict, the voluntas requirement appears to be excessively conservative. It therefore seems most likely that the reason lying behind it is one of traditional adherence to principle. We bear in mind the context, that all of these remedies represent a break with the basic principle that a slave could make his owner’s position worse. The question is then how radical a break with principle is to be tolerated. Taking voluntas as the touchstone means that the owner had to have a positive intention that something should be done. Seen from that perspective, the present action is in essentials much the same as the actio quod iussu, there being instead of a specific instruction something akin to a generalised iussum. It is not too radical to make a person liable for something that he himself wills should be done. In principle it is clearly much more radical to make him liable simply because he is aware that something is being done. But, as I have attempted to suggest, the distinction although intellectually impeccable is perhaps not a very practical one in the present context. Practical or not, it offered the jurists an attractive tripartite scheme (we recall from Henry Goudy the Roman jurists’ fondness for trichotomy17): first, ignorance: peculium; second, knowledge: actio tributoria; and third, inten15 D 14.1.6pr (Paul, Short Notes 6). 16 D 14.1.1pr (Ulpian, Edict 28). 17 H Goudy, Trichotomy in Roman Law (1910).

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tion: actio exercitoria. It is not wholly fanciful to suppose that from time to time the elegance of doctrinal analysis worked as a kind of dead hand with respect to the pragmatic evolution of the law. Having said that, however, I think one might draw precisely the opposite conclusion in relation to the actio de peculio. Although it posed certain challenges for a creditor who sought satisfaction, it would be wrong to draw the conclusion that the law was consciously designed so as to make it difficult to sue. That could not invariably be in the interests of any particular social group. Not even the jurists. The point is rather that liability dumtaxat de peculio was itself a break with the principle that a slave could not make his owner’s position worse. As an exception to a well-established rule, it was bound to be interpreted in a manner which was restricted, even if a degree of inconvenience was the inevitable result. Some might conclude that this is but another illustration of the distant relationship of the jurists with real life and practice. But that conclusion would go too far. Creditors did have other remedies, and as Gaius mentions the action based on the peculium was in a sense a last resort where none of the others was possible. What was important was to depart from the principle that slaves could not bind their owners only so far as necessary to enable trade to work efficiently. Against the background of well-established principle, to expose a slave-owner or paterfamilias to unlimited liability where he knew nothing of the transactions in question would have been extreme. The peculium was a remarkable means of balancing the interests of those involved in trade, by imposing some liability but not too much. D. CONCLUSIONS What conclusions does this short discussion allow? First, that if these reflections are accurate, then it is too simple to suppose that the motor for development of the law was either legal doctrine or principle alone or social or economic utility. The picture is more complicated. It does not seem unfair nonetheless to characterise the extension of remedies against the paterfamilias on account of his slave’s or son’s dealing as cautious. But there was a lot at stake. Second, within this area of economic life there was a range of possible remedies, and a degree of overlap between them. We can of course take a view on the weaknesses apparently inherent in some remedies only if we consider the picture as a whole; there is no point in identifying a gap in one remedy when another one fills the gap perfectly. Nevertheless, in this context

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the prize is clearly liability in solidum, and at least in the case of the actio exercitoria the threshold appears to have been set rather high. Third, in this context as in others there is a range of possible remedies, each with its own advantages and disadvantages. This is quite typical in Roman law: one thinks of the possibilities for suing objectionable neighbours by means of the actio legis Aquiliae, interdict quod vi aut clam, damnum infectum, operis novi nuntiatio, or actio aquae pluviae arcendae. Those remedies, like the ones discussed here, have their different attractions for different factual situations. It is legitimate to conclude that, in order to vindicate your rights effectively in Roman law, it was necessary to have a good lawyer.

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10 Lawsuits in Context E Metzger A. INTRODUCTION The study of Roman civil procedure has benefited enormously from the discovery of the Murecine archive, a collection of first-century documents belonging to a banking family in Puteoli.1 Lawyers and historians are indebted to Giuseppe Camodeca for his exceptional care in editing and presenting the archive and interpreting its contents. Opinions differ on questions of interpretation, but this is inevitable: the sources on procedure available to date have not adequately prepared us to interpret the Murecine archive. The literary sources tend to mention rules of procedure only in passing, and the juristic sources (to recall perhaps Watson’s “law in books”)2 usually follow their own currents: the real and the hypothetical are mixed together, and what is interesting or contentious gets more attention than what, for Roman litigants, was routine and unremarkable. These are the sources that have shaped our views of procedure, and we have no prior assurance that they will fully explain the events described in the Murecine archive. Some of the documents in the archive were prepared in the middle of litigation, and these are particularly rare and valuable. Yet identifying the “litigation documents” is more difficult than one might think. This is because, in Roman procedure, it is difficult to fix the moment at which the parties’ acts cease to be “extra-judicial” (“outwith litigation”) and become “judicial”. Litigation ostensibly begins with a summons – and everything after that ought to be judicial – but the summons was a private act and did not necessarily lead to any real engagement between the parties (or even a meeting with the magistrate3). We therefore tend to take a narrower view and speak of a party’s 1 The principal edition is G Camodeca, Tabulae Pompeianae Sulpiciorum (TPSulp). Edizione critica dell’archivio puteolano dei Sulpicii (1999), which mostly replaces the earlier edition: G Camodeca, L’archivio Puteolano dei Sulpicii, I (1992). On the Murecine tablets and other finds from Campania, see also E A Meyer, Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice (2004) ch 6. The earlier readings and reconstructions that appeared in the Rendiconti of the Accademia di Archeologia Lettere e Belle Arti di Napoli are untrustworthy and should not be consulted. 2 See A Watson, “Law and Society”, above, 9, especially 27–29. 3 We know that restitutio was offered to litigants in Italy who suffered the loss of their actions

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act as judicial if it takes place in iure.4 This ought to make judicial acts easier to identify, but often it does not: some acts in iure are performed under the obvious direction or guidance of a judicial magistrate (iusiurandum, interrogatio, postulatio), but others are performed in ways in which the magistrate’s participation, if indeed he does participate, is not obvious at all (editio). One matter in which the magistrate’s participation is not obvious is the matter of postponements. He orders the postponements, but the parties’ “promises to reappear” that follow are substantially the object of their own private negotiation. These promises are in every respect judicial: they arise in the middle of litigation, in the magistrate’s court, and are performed under the compulsion of the magistrate. Unfortunately their judicial character is easily missed, because information about practical matters like postponements is hard to recover from the ancient sources, and we have had, to date, only incomplete information about these promises. If we wrongly interpret these promises as extra-judicial, the cost is very great. A large number of documents in the Murecine archive record them, and many other documents in the archive refer to them in passing. All of these documents therefore provide, so to speak, first-hand information about various events in the magistrate’s court. This kind of information is exceptionally hard to come by, and we lose this information if we misinterpret these promises as extra-judicial. The discussion below addresses two pre-trial matters, iusiurandum and the appointment of cognitores, which have been affected by a misinterpretation of these promises. Then follows a more general discussion of the postponement procedures, deduced with the considerable aid of the Murecine archive. B. IUSIURANDUM Two documents in the archive relate to an institution described at length in the Digest: the “iusiurandum”.5 This was a device that helped to avoid because a magistrate was unable to see them: D 4.6.26.4 (Ulpian, Edict 12); O Lenel, Das Edictum Perpetuum, 3rd edn (1927) 120–123 § 44. This is discussed below. 4 The ambiguities in the terms “judicial” and “extra-judicial” are discussed in M Zabłocka, “La costituzione del ‘cognitor’ nel processo romano classico” (1983–1984) 12 Index 140, 146–147 . 5 Until the discovery of the Murecine archive, the iusiurandum was known mainly from D 12.2 (voluntary, compulsory and judicial oaths): see the discussion in M Kaser and K Hackl Das römische Zivilprozessrecht, 2nd edn (1996) § 36; H J Roby, Roman Private Law in the Times of Cicero and of the Antonines, II (1902) 394–396; A H J Greenidge, The Legal Procedure of Cicero’s Time (1901) 259–263. Much discussion followed the discovery of the archive: Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 93–96; M Humbert, “À propos du iusiurandum de T Sulp 28 et 29: Aveu d’iniuria ou défense, par un serment décisoire, à une action entachée de calumniae?” (2000) 11 Cahier Glotz 121; G Camodeca, “Per un primo aggiornamento all’edizione dell’archivio dei

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unnecessary litigation. When it was performed voluntarily, it took the following form. One party would tender an oath to the other party: a defendant would be invited to give an oath denying his liability in the action, or a plaintiff would be invited to give an oath reaffirming that his claim was just. The giving of the oath settled the matter, respectively, in favour of the defendant or plaintiff, and it did so no less than a judgment would have done. This socalled iusiurandum voluntarium6 was usually performed in iure (“judicially”), but it could also be performed privately (“extra-judicially”).7 Similar oaths might be tendered under the compulsion of the magistrate (iusiurandum necessarium), though the class of actions in which these were allowed was restricted. The two relevant documents in the archive appear to deal with a subject matter that could not be treated under the compulsory oath.8 The question is therefore whether the documents fall under the judicial or extrajudicial form of the voluntary oath. The first of the documents, TPSulp 28, declares the following: “After they had met the court appointment (vadimonium) that Caius Sulpicius Cinnamus had made with Iulius Fortunatus, and Caius Sulpicius Cinnamus had said he was ready to swear that, if 3,000 sesterces were proffered to him [sc Cinnamus], then Iulius Fortunatus would … iusiurandum.”9 The second of the documents, TPSulp 29, is probably part of the same affair,10 and sets out the oath itself:11 “On the invitation of Iulius Fortunatus, Caius Sulpicius Cinnamus swore…”, followed by a mutilated text suggesting the charge was iniuria by way of convicium. It appears that Cinnamus was the defendant in an action on an iniuria, though Cinnamus’ request for 3,000 sesterces is surprising (how can a defendant be in a position to demand 3,000 sesterces?) and remains somewhat of a riddle.12

6 7 8

9 10 11

12

Sulpicii (TPSulp)” (2000) 11 Cahier Glotz 173; J G Wolf, “Der neue pompejanische Urkundenfund. Zu Camodecas ‘Edizione critica dell’archivio puteolano dei Sulpicii’” (2001) 118 ZSS (rA) 102; P Gröschler, “Der Eid in TPSulp 28 und 29” (2004) 121 ZSS (rA) 110. D 12.2 (voluntary, compulsory and judicial oaths). See D 12.2.17pr; D 12.2.28.10 (Paul, Edict 18). It is apparently a suit on iniuria (Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 94), and though the point is disputed, this does not appear to be among the actions for which this type of oath was allowed. See Kaser and Hackl, Zivilprozessrecht (n 5) 268 note 19; cf D 47.10.5.8 (Ulpian, Edict 56); Roby, Roman Private Law (n 5) 296. TPSulp 28: Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 93–94; E Metzger, Litigation in Roman Law (2005) 188 (no 29). Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 94. TPSulp 29: Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 94–96. The words are only partly preserved, but the oath itself is apparent in the words ex tui animi se[ntentia], at tab 1, p 2, l.5 (see Cicero, De Officiis 3.108) and si sciens at tab 1, p 2, l.8 (see Livy 22.53.11). See Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 95. Gröschler proposes a solution in which Cinnamus assumes the role of plaintiff in the vadimonium:

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Camodeca first presented this transaction as a iusiurandum in iure, that is, as a voluntary oath that was nevertheless performed in iure.13 Humbert, in reply, argued that the suit had not progressed so far as this: the parties’ engagement to appear, mentioned expressly at the opening of TPSulp 28, “Cum ad vadimonium ventum esset, quod haberet Caius Sulpicius Cinnamus cum Iulio Fortunato”14 was, Humbert says, a private engagement for a first appearance, and as the matter had therefore not reached the magistrate, the iusiurandum was extra-judicial.15 Camodeca subsequently accepted Humbert’s thesis and presented the transaction as extra-judicial.16 Thus the iusiurandum would have taken place “on the way to litigation”, and the general course of events described in the documents, however the events are reconstructed,17 would not reflect the hand of the magistrate or events in iure. C. APPOINTMENT OF COGNITORES A cognitor was a representative with a critical task: he stood in for a party, becoming in essence the litigant himself.18 A cognitor was appointed with formal words, but the sources leave open the question of when exactly these

13

14 15 16 17 18

Gröschler, “Der Eid” (n 5) 124–125. He bases his argument on the ambiguity of roles in the formula vadimonium quod X haberet cum Y (see TPSulp 28, p 2, ll. 1–4). He is certainly correct that the word vadimonium sometimes refers simply to the “appointment” rather than to the contract itself (see, e.g., Cicero, Pro Quinctio 22 and, metaphorically, Juvenal, Saturae 3.297–299; Apuleius, Metamorphosis 3.12, 9.22). Thus an author might refer indifferently either to a plaintiff or defendant when saying “had an appointment”. But one wonders whether the specific formula vadimonium quod X haberet cum Y is capable of conveying what Gröschler argues: this very formula recurs in other Murecine documents where the subject of habere is almost certainly the promissor of the vadimonium, which is to say the defendant: TPSulp 18, 20, 21. These are all testationes sistendi (“attestations of appearance”), where the promissor is attesting his appearance. Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 94. He titles TPSulp 28 “iusiurandum susceptum” on the understanding that Cinnamus was “declaring himself ready to swear” (tab. 1, p 2, ll. 6–7). See D 12.2.6 (Paul, Edict 19): “Remittit iusiurandum, qui deferente se cum paratus esset adversarius iurare gratiam ei facit contentus voluntate suscepti iurisiurandi. Quod si non suscepit iusiurandum, licet postea parato iurare actor nolit deferre, non videbitur remissum: nam quod susceptum est remitti debet.” (“He ‘remits’ an oath who, satisfied with his opponent’s willingness to undertake the oath, indulges his opponent by tendering the oath when his opponent was prepared to swear it. But if the opponent did not undertake the oath, even if later he is prepared to swear but the plaintiff is unwilling to tender, the oath will not be regarded as remitted: for only an actual undertaking may be remitted.”) Camodeca appears to be right, in so far as Cinnamus is signalling his willingness to undertake the oath. If however Cinnamus did eventually swear the oath, as Camodeca’s reconstruction of TPSulp 29 suggests, then the transaction as a whole would not be the iusiurandum remittere described by Paul. See Kaser and Hackl, Zivilprozessrecht (n 5) 267. Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 93. Humbert, “À propos du iusiurandum” (n 5) 122–124. Camodeca, “Per un primo aggiornamento” (n 5) 183–184. Humbert, Wolf and Gröschler offer several “extra-judicial” alternatives in the cited works. See Gai Inst 4.86–4.87; Kaser and Hackl, Zivilprozessrecht (n 5) 210–213 (n 5).

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words were pronounced, and thus when the cognitor formally assumed his task and title.19 One form of words mentions the very action the plaintiff wishes to bring, and where this form is used the cognitor is appointed after proceedings in iure have begun (“judicial”), but another form is more general, and leaves open the possibility that a cognitor appointed by this second form is appointed much earlier, perhaps earlier even than in ius vocatio.20 Maria Zabłocka expressed doubts that cognitores were ever appointed before in ius vocatio.21 In reply Aniello Parma set out to show that one of the documents in the Murecine archive describes two cognitores who were, in fact, appointed in this way.22 The document is a “settlement agreement”23 in a lawsuit for which we possess, remarkably, two other documents. The plaintiff, Lucius Faenius Eumenes, is suing one Caius Sulpicius Faustus ex empto and for a ring given as arra. We have these details from two documents prepared in the summer of 48. These two documents (both vadimonia) show that the parties anticipated having their case heard in Puteoli.24 But shortly after these documents were prepared, the parties anticipated having their case heard in Rome instead of Puteoli. A transfer of this kind was ordinarily accomplished by a special kind of vadimonium, one in which a defendant promised to appear in Rome, rather than locally, at some time in the future.25 19 For literature, see M Zabłocka, “La costituzione del ‘cognitor’” (n 4) 150 notes 1–9. 20 See A Bürge, “Zum Edikt De edendo” (1995) 112 ZSS (rA) 1, 14–15; F de Zulueta (ed), The Institutes of Gaius, II (1953) 275; Kaser and Hackl, Zivilprozessrecht (n 5) 211 note 11. Both forms of words are in Gai Inst 4.83: Cognitor autem certis verbis in litem coram adversario substituitur. Nam actor ita cognitorem dat: QUOD EGO A TE VERBI GRATIA FUNDUM PETO, IN EAM REM LUCIUM TITIUM TIBI COGNITOREM DO; adversarius ita: QUIA TU A ME FUNDUM PETIS, IN EAM TIBI PUBLIUM MEVIUM COGNITOREM DO. Potest ut actor ita dicat: QUOD EGO TECUM AGERE VOLO, IN EAM REM COGNITOREM DO, adversarius ita: QUIA TU MECUM AGERE VIS, IN EAM REM COGNITOREM DO. 21 Zabłocka’s conclusion is based on an analysis of the terminology in Gai Inst 4.83, (Zabłocka, “La costituzione del ‘cognitor’” (n 4) 140–144), and an analysis of editio actionis (which, some believe, the datio cognitoris sometimes accompanied: Zabłocka, “La costituzione del ‘cognitor’” (n 4) 144–147). 22 A Parma, “Sul momento della costituzione del ‘cognitor’ nel processo romano” (1997) 25 Index 439. 23 TPSulp 27: Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 88–92; Metzger, Litigation in Roman Law (n 9) 188 (no 28). Camodeca titles the document “Conventio finiendae controversiae”. 24 TPSulp 2: Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 56; Metzger, Litigation in Roman Law (n 9) 182–183 (no 11). TPSulp 3: Camodeca, Tabulae Pompeianae Sulpiciorum (n 1) 56–57; Metzger, Litigation in Roman Law (n 9) 183 (no 12). 25 See Lenel, Das Edictum Perpetuum (n 3) 55–56 § 6; R Domingo, Estudios sobre el primer título del edicto pretorio, II (1993) 54–64; A Rodger, “Vadimonium to Rome (and Elsewhere)” (1997) 118 ZSS (rA) 162; D Johnston, “Vadimonium, the lex Irnitana, and the Edictal Commentaries”, in U Manthe and C Krampe (eds), Quaestiones Iuris (2001) 111; Metzger, Litigation in Roman Law (n 9) 10–12, 22–27, 155–163.

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We do not possess the very document recording Faustus’ promise to appear in Rome, but we do possess an allusion to that promise in the settlement agreement, prepared some months after the other two documents. From the settlement agreement we understand that the promise to appear in Rome had not been performed by Faustus himself, but by his cognitor, in reply to a stipulation by Eumenes’ cognitor.26 The settlement agreement itself is the chirographum of the buyer Eumenes, who declares that he has agreed with Faustus to end the case. To effect the settlement, the vadimonium by which the parties’ cognitores had agreed to meet in Rome must be withdrawn in some way; the parties opt to do so by declaring that Eumenes will indemnify Faustus’ cognitor, should Faustus’ cognitor fail to appear and an action be taken against him for his non-appearance.27 Thus the sequence of events in the lawsuit is: (1) a promise by Faustus to appear in Puteoli; (2) a second promise by Faustus to appear in Puteoli; (3) a promise by Faustus’ cognitor to appear in Rome; and (4) settlement agreement. Parma’s argument is based on the chronology of events. Parma’s understanding is that all of the vadimonia in the lawsuit are private engagements for first appearances in iure. After the two proposed appearances in Puteoli were aborted, cognitores were appointed. Then followed the third vadimonium – also, according to Parma, a private engagement for a first appearance. According to the common opinion, private engagements such as these preceded summons by in ius vocatio.28 Thus, Parma argues, both cognitores in the lawsuit were appointed before in ius vocatio, refuting the argument of Zabłocka that cognitores were never appointed so early as this. D. EXTRA-JUDICIAL ACTS In both of the instances just discussed, the course of proceedings, and the role of the documents in those proceedings, have been deduced from the presence of a promise to appear (vadimonium). According to long-standing opinion, these promises usually took place before any proceedings had begun in the magistrate’s court, and hence the appearance of the word “vadimonium” in a document becomes the telltale that the document is extra-judicial. On this 26 TPSulp 27, pp. 2, l. 5–3, l. 4. 27 TPSulp 27, pp. 2, l. 12–3, l. 8. 28 Parma, “Sul momento della costituzione” (n 22) 442, 444 notes 13 and 17. Parma cites the views of Giménez-Candela and Wolf who, in different ways, explain how the vadimonium and the summons by in ius vocatio work in concert with one another to ensure a first appearance in iure. See T Giménez-Candela, “Notas en torno al ‘vadimonium’” (1982) 48 SDHI 126; J G Wolf, “Das sogenannte Ladungsvadimonium”, in J A Ankum et al (eds), Satura Roberto Feenstra Oblata (1985) 59. These views are discussed at length in Metzger, Litigation in Roman Law (n 9).

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reasoning, such documents are not strictly speaking “litigation documents”, but “pre-litigation documents”. They may anticipate what took place in the magistrate’s court, but do not directly reveal how magistrates administered justice. The documents should not be interpreted in this way. The error is in treating the vadimonium as extra-judicial, taking place before litigation, when in fact it is judicial, taking place in iure. Yet the error is easy to understand: for centuries this institution has been at the mercy of a slow trickle of evidence.29 The idea that a vadimonium was a private, pre-litigation agreement between the parties developed at a time when the only available evidence was a handful of literary sources,30 and the meaning of “vadimonium” had to be got from context alone. It seemed to be a private event, not only because there was no magistrate visibly ordering it to be performed, but also because many believed – erroneously, as it turned out – that the praetor had openly invited parties to use a vadimonium if they did not wish to use a formal summons.31 This was the general view before the discovery of Gaius’ Institutes. Gaius was the first source actually to discuss the vadimonium, and he revealed what earlier scholars could have uncovered only with great difficulty: that a vadimonium was a promise to reappear in iure, ordered by a magistrate for parties with unfinished business.32 The vadimonium was therefore clearly an event that took place in the middle of litigation. The discovery of Gaius did not, however, put to rest the old view that the vadimonium was a private, pre-litigation agreement. The reason is that the vadimonia described in the literary sources appeared to have been performed without the participation of any magistrate, while Gaius’ account seemed to be describing the very opposite: a personal, face-to-face meeting with the magistrate, where the magistrate heard the details of the parties’ case and tailored a specific 29 For a full account of the evolution of this institution in the literature, see Metzger, Litigation in Roman Law (n 9) 12–17; E Metzger, “The current view of the extra-judicial vadimonium” (2000) 117 ZSS (rA) 133, 138–143. 30 The most significant was Cicero’s speech for Publius Quinctius, which contains several episodes where the parties or their procuratores are using vadimonia. These episodes were cited – and indeed are still cited – as examples of extra-judicial vadimonia. See Kaser and Hackl, Zivilprozessrecht (n 5) 231 note 37. But compare J Platschek, Studien zu Ciceros Rede für P Quinctius (2005) 49. 31 This particular misapprehension is the ultimate source of the “extra-judicial vadimonium”: the belief that the edict had offered the plaintiff the choice of either summoning his defendant by in ius vocatio, or allowing his defendant to make a vadimonium for a later appearance. See D 2.6 (Let those summoned either appear or provide a guarantor or give an undertaking) and Gai Inst 4.46 with Metzger, Litigation in Roman Law (n 9) 13–15. The praetor had allowed defendants to give a vindex instead of appearing immediately; early writers had confused the vindex with vadimonium. 32 See below, text accompanying n 33.

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vadimonium for them. This is not in fact what Gaius describes, but this is how it seemed to earlier generations of scholars. The solution was to set aside and define a special category of vadimonium, different from the one described by Gaius: the wholly private, “extra-judicial vadimonium”. This is the vadimonium that has played such an important part in the interpretation of the Murecine archive and, in the examples given above, ultimately accounts for the “extra-judicial iusiurandum” and the “extra-judicial datio cognitoris”. E. PUBLICLY ORDERED, PRIVATELY PERFORMED During the last century there were several important discoveries that improved our knowledge of Roman procedure, and this new evidence has helped us to make better sense of what Gaius is describing. Briefly, we can now see that when Gaius discusses postponements and vadimonia, he does not assume that every vadimonium is preceded by a face-to-face meeting between the litigants and the magistrate. Instead, postponements can be ordered en masse, for the benefit of all litigants who have come to the magistrate’s court. These are litigants who either cannot gain an audience, or do not wish for an audience on that day. The postponement procedure, moreover, is sufficiently regularized to permit the litigants to fashion their own promise, though the performance of the promise is indeed compelled by the magistrate. This is what Gaius says:33 Gai Inst 4.184. Cum autem in ius vocatus fuerit adversarius neque eo die finiri potuerit negotium, vadimonium ei faciendum est, id est, ut promittat se certo die sisti. 185. Fiunt autem vadimonia quibusdam ex causis pura, id est sine satisdatione, quibusdam cum satisdatione, quibusdam iureiurando, quibusdam recuperatoribus suppositis, id est, ut qui non steterit, is protinus a recuperatoribus in summam vadimonii condemnetur. Eaque singula diligenter praetoris edicto significantur. 186. Et siquidem iudicati depensive agetur, tanti fit vadimonium quanti ea res erit; si vero ex ceteris causis, quanti actor iuraverit non calumniae causa postulare sibi vadimonium promitti. Nec tamen pluribus quam sestertium CM fit vadimonium. Itaque, si centum milium res erit, nec iudicati depensive agetur, non plus quam sestertium quinquaginta milium fit vadimonium. 184. However, when the defendant has been called in ius, but matters cannot be completed on that day, “a vadimonium must be made to him”, that is, so that he promises to be present on a particular day. 185. In some cases, moreover, vadimonia are plain, that is, without security, sometimes with security, sometimes with an oath, sometimes with recuperatores anticipated, in other words, so that if someone 33 This is the text of Krüger and Studemund, but without Huschke’s emendation at 4.186. On the reasons for the omission, see Metzger, Litigation in Roman Law (n 9) 74–79.

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does not appear, he is condemned immediately for the summa vadimonii. These are all individually set out in detail in the praetor’s edict. 186. Now if it is the case that one is suing on a judgment or for a sponsor’s payment, a vadimonium is made for as much as the matter is worth, but in all other cases it is made for as much as the plaintiff swears is being demanded him by vadimonium nonvexatiously. But a vadimonium is also made for not more than 100,000 sesterces. So for example if the matter is worth 100,000 and it is not an action on a judgment or for a sponsor’s payment, a vadimonium is made for not more than 50,000.

Gaius is accurately describing, in barest outline, how litigants with unfinished business made engagements to reappear; how the defendant promised to appear on a certain day in the future; and how he promised in addition to pay the plaintiff a certain penalty if he did not appear. When we try to picture for ourselves precisely how these vadimonia were ordered and performed, two details in Gaius’ account become important: the penalty, and the day of return. The amount of the penalty and the choice of day ought to vary from case to case, and it is not immediately obvious how a magistrate could order an engagement to take place on such specific terms without having seen the litigants personally.34 F. THE PENALTY In 4.185 Gaius describes various different ways in which a defendant’s appearance can be secured. It happens that the type of security that appears overwhelmingly in the surviving evidence is of the simplest kind: “personal recognisance”.35 The defendant promises to pay a penalty to the plaintiff, payment being conditional on the defendant’s failure to fulfil his first promise, a promise to return on the appointed day.36 One might assume that when the magistrate orders the parties to return, he orders the performance of both promises.37 If this were the case, the magistrate could not avoid meeting with the litigants personally, because different lawsuits call for different penalties. Even if the plaintiff had some freedom to select a penalty, the magistrate, it seems, is still left the task of ordering the performance of a specific stipulation and promise for a specific pair of litigants. Yet we notice that Gaius nowhere 34 There is no question, of course, that some postponements were preceded by a face-to-face meeting. See Gai Inst 3.224 with Metzger, Litigation in Roman Law (n 9) 92–94. 35 The “personal recognisance” type is not mentioned by Gaius, and quite possibly it was not an option offered by the edict, but simply adopted in practice as the most straightforward means of securing the first promise: see Metzger, Litigation in Roman Law (n 9) 68–69. 36 See D 45.1.126.3 (Paul, Questions 3); D 45.1.81pr (Ulpian, Edict 77). 37 This does seem to be the assumption. Lenel, for example, assumes that the magistrate’s permission is needed if the parties wish to omit the penalty clause: see Lenel, Das Edictum Perpetuum (n 3) 515 § 280, and the discussion in Metzger, Litigation in Roman Law (n 9) 69.

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says that the magistrate actually orders the accessory promise to pay a penalty. Gaius speaks only about how great the penalty may be. What Gaius is conveying only became clear with the discovery of documents recording the stipulation and promise of actual vadimonia.38 The documents record the stipulation and promise in an unusual way. The general formula is this:39 Vadimonium factum Numerio Negidio in , , . dari stipulatus est Aulus Agerius spopondit Numerius Negidius.

The first sentence is expressed just as Gaius (4.184) would lead us to expect; if a magistrate ordered a “vadimonium to be made against the defendant”, the litigants would perform the stipulation and dutifully record that a “vadimonium was made against the defendant”.40 But the second sentence, standing alone as it does, is odd: the defendant, after all, has not simply “promised to pay”, but has promised to pay only if he does not appear. The second sentence in no way betrays the fact that the promise is conditional. The reason for this is that so-called praetorian stipulations, such as vadimonia, present special problems of proof when the stipulations are disobeyed.41 There may be, first, serious consequences for failing to perform them (e.g., trial by recuperatores42) and, second, serious consequences for failing to fulfil the promise (e.g., being treated as indefensus43). A litigant who wishes to prove that he did in fact obey the order to perform the stipulation, or the litigant who wishes to show that his opponent did not fulfil the promise in the stipulation, has, as evidence, only the document recording the stipulation. If the parties have added anything to what the magistrate has ordered them to do, it then becomes difficult, as a matter of proof, to distinguish what the magistrate ordered from what the parties voluntarily undertook to perform. Thus Ulpian, writing on praetorian stipulations: D 46.5.1.10 (Ulpian 77 ed). Sed et si quid vel addi vel detrahi vel immutari in stipulatione oporteat, praetoriae erit iurisdictionis.

38 The argument below is set out more extensively in Metzger, Litigation in Roman Law (n 9) 68–73. 39 The formula is followed with remarkable consistency in the documents from Herculaneum and the Murecine archive. The one genuine departure is TPSulp 10. Also, some documents add items of information (e.g., the nature of the action is named in TPSulp 2, 15), though without disturbing the formula. 40 This language has been studied exhaustively, most recently in J Platschek, “Vadimonium factum numerio negidio” (2001) 137 ZPE 281; Metzger, Litigation in Roman Law (n 9) 55–64. 41 The sources and literature are given in Metzger, Litigation in Roman Law (n 9) 66–68. 42 Lex de Gallia Cisalpina, col 2, ll. 21–4 (Verweisungsvadimonium). 43 This was the central issue in the Pro Quinctio.

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Moreover, if there is to be anything added, taken away, or changed in the stipulation, that is a matter for the Praetor’s jurisdiction. D 45.1.52pr (Ulpian 7 disp). In conventionalibus stipulationibus contractui formam contrahentes dant. Enimvero praetoriae stipulationes legem accipiunt de mente praetoris qui eas proposuit: denique praetoriis stipulationibus nihil immutare licet neque addere neque detrahere. In private stipulations the contracting parties determine the form of the contract. But praetorian stipulations take their force from the will of the Praetor who published them, and accordingly one may not change anything in a praetorian stipulation either by adding or taking away.

Ulpian’s warning reminds us that, in Roman litigation, what a magistrate ordered to be done must sometimes be inferred from what the parties said they did. Hence in a case like this it is in the interests of both parties to observe the formula faithfully, and record separately what they have voluntarily added (the penalty), avoiding any suggestion that they have altered what they were ordered to do (reappear on such-and-such a day). The main point is that we understand Gaius better with the help of these new documents. The magistrate orders the parties to perform a stipulation to reappear, but he does not order the parties to include an accessory promise for a penalty.44 This frees him from having to concern himself in the details of a single case, and he does not, therefore, have to conduct a face-to-face meeting with the parties on this account.45 G. THE DAY OF RETURN The most important variable in the postponement regime described by Gaius is, of course, the day of return. When we read Gaius we assume that, since some litigants will return on one day and other litigants on another, a magistrate has no choice but to order postponements case-by-case. Many years ago, however, Huschke and Karlowa noticed several texts in which vadimonia were being ordered for the day after the next.46 It was most obvious in this text of Gaius:47 D 2.11.8 (Gaius 29 ed prov). Et si post tres aut quinque pluresve dies, quam iudicio sisti se [sc. vadimonium] reus promisit, secum agendi potestatem fecerit 44 But see n 34 above. 45 Certain related issues, such as why a defendant would wish to include a penalty, and how a plaintiff determines what sum to demand, are treated in Metzger, Litigation in Roman Law (n 9) 73–87. 46 P E Huschke, Das alte Römische Jahr und seine Tage (1869) 317; O Karlowa, Der römische Civilprozess zur Zeit der Legisactionen (1872) 360–365. 47 See also the text of Macrobius, cited in n 71 below.

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nec actoris ius ex mora deterius factum sit, consequens est dici defendi eum debere per exceptionem. And if, after three or five or more days from the day the defendant promised the vadimonium, he makes it possible for suit to be brought against him, and the plaintiff’s claim has not been made worse by the delay, the result is that he ought to be given an exceptio by way of defence.

The suggestion here is that, by some means, the defendant had been ordered to perform vadimonia for appearances on successive, alternate days. Neither Huschke nor Karlowa had available the sources to decipher the overall regime. It was not until 1981 and the discovery of the lex Irnitana, a firstcentury town charter from Baetica, that the details of postponing to the day after the next came to light.48 The lex Irnitana assigns various tasks to the local magistrate charged with administering justice. Among his tasks is the duty to “grant intertium” every day.49 The statute does not spell out the specifics, but we can deduce that granting intertium requires him to order a postponement to the day after the next, at the end of a judicial sitting.50 The postponement is a general one, for the benefit of any waiting litigants with unfinished business: a magistrate who simply leaves at the end of the sitting, without ordering the litigants to return, has put the litigants, and particularly the plaintiffs, in a precarious position. We can appreciate how important it was for the magistrate to perform these postponements when we see that the praetor in Rome offered restitutio to litigants in Italy who had been wrongfooted by the delays or inaction of local magistrates: D 4.6.26.4 (Ulpian 12 ad edictum). Ait praetor: “sive cui per magistratus sine dolo malo ipsius actio exempta esse dicetur”. Hoc quo? Ut si per dilationes iudicis [sc. magistratus] effectum sit, ut actio eximatur, fiat restitutio. Sed et si magistratus copia non fuit, Labeo ait restitutionem faciendam. “Per magistratus” autem factum ita accipiendum est, si ius non dixit: alioquin si causa cognita denegavit actionem, restitutio cessat: et ita Servio videtur. Item per magistratus factum videtur, si per gratiam aut sordes magistratus ius non dixerit. 48 The text of the lex Irnitana, with a translation into English and commentary, is in J González, “The lex irnitana: a new copy of the Flavian municipal law” (1986) 76 JRS 147. The postponement procedure is described in chapters 90–92 of the statute. We are fortunate to know, from chapter 91, that the postponement procedure we read in the lex Irnitana was also a feature of iudicia legitima at Rome. 49 What I give below is the briefest summary of my arguments in Metzger, Litigation in Roman Law (n 9) 111–135, and “A fragment of Ulpian on intertium and acceptilatio” (2006) 72 SDHI 111–138. For another use of postponements in iure to the day after the next, see A D E Lewis, “Advocatio: a postponement in iure”, in R van der Bergh (ed), Ex Iusta Causa Traditum: Essays in Honour of Eric H Pool (2005) 215. 50 The magistrate who is charged with administering justice pays a single fine for each day on which he was supposed to grant the postponement and did not: lex Irnitana, c 90, ll. 37–40.

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The praetor says “or if it is shown that an action was lost because of the magistrates, without fraud on [the claimant’s] part”. Why is this included? So that restitutio can be given when an action is lost by the delays created by a [magistrate]. Labeo says restitutio will also be given if magistrates were not available. Note that the words “because of the magistrates” should be understood to include the failure to administer justice: if, on the other hand, the magistrate denied the action causa cognita, there will be no restitutio: this is Servius’ opinion. Moreover, something is regarded as done “because of the magistrates” when the magistrate does not administer justice out of bias or corruption.

We imagine something like the following: a plaintiff summons his defendant in iure, but when they arrive the crowds are so great, or the magistrate so lazy or corrupt, that the plaintiff is not able to bring his case to litis contestatio. If his case is then time-barred, or his defendant makes himself scarce or dies (and the action does not survive to his heir), the plaintiff deserves restitutio. What may save the plaintiff’s action is a postponement – not, perhaps, to a day of his own choosing, since he has not had the luxury of an audience with the magistrate – but a postponement to the day after the next.51 Of course the regime will be effective only if the defendant, at the conclusion of the sitting, is required to perform a vadimonium. The vadimonium is not mentioned among the provisions on intertium in the lex Irnitana, but there exist many examples52 of “vadimonia for the day after the next” – not least the text of Gaius on the provincial edict, just quoted – so that we may safely assume that vadimonia accompanied this postponement regime.53 For present purposes, the great value in the lex Irnitana is in the way it informs our understanding of Gaius’ description of the vadimonium. Earlier scholars had looked at various instances where parties had performed vadimonia, and had concluded that these vadimonia were performed outwith litigation. We can now see that a vadimonium was ordered by the magistrate – thus within litigation – but could be performed without the magistrate’s personal attention. The magistrate was not, as a rule, interested in the penalty for non-appearance, and the day of return was regularised:54 this gave the 51 The one-day gap may have been useful to allow notice of the day the case resumed. This would be necessary if a party appeared through a representative at the initial appearance, but had to appear in person for the final appearance (culminating in litis contestatio). This thesis is developed in Metzger, “Fragment of Ulpian” (n 49). 52 These sources are discussed exhaustively in Metzger, Litigation in Roman Law (n 9) 99–110. 53 Seckel suggests that, in its original state, the text of Ulpian just quoted included clauses on “failing to order vadimonia”: see Index Interpolationum col 59. The reason for his suggestion, it appears, is that a magistrate who fails to order the performance of vadimonia puts a plaintiff’s action at risk in the same way as other kinds of inactivity do so. When this paper was presented, John Richardson made the good point that Seckel’s emendation is redundant. Cf Metzger, Litigation in Roman Law (n 9) 119. 54 To be sure, some waiting litigants would be able to decide on their own day for reappearance:

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magistrate the freedom to order postponements en masse. In short, we do not need to presume the existence of a second vadimonium, different from the one described by Gaius. H. PUBLISHING THE DAY The effectiveness of the postponement regime, outlined above, depends on the ability of the magistrate to inform litigants of the day on which they ought to return. If the litigants cannot depend on obtaining a face-to-face meeting with the magistrate, then the day of return ought to be published in a way that permits the litigants to gain the information on their own. There are two relevant items of evidence on the matter of publication. One item – far and away the most important one – has been discussed a good deal in the literature: the duty of the municipal magistrate to “publish intertium”, described in the lex Irnitana.55 Lex Irni, c 90, ll. 27–31. Quicumque in eo municipio duumvir iure dicundo praerit … intertium dato. Idque proscriptum in eo loco, in quo ius dicet, maiore parte cuiusque diei per omnes dies, per quos intertium dari debebit, habeto ita ut de plano recte legi possit. Whichever duumvir in that municipium is in charge of administering justice shall grant three-day postponements. And he shall publish it, in the place where he administers justice, for the greater part of each day, throughout all days on which he is supposed to grant three-day postponements, so that it can be read from ground level.

The text does not say what exactly must be published, and no answer can be certain. Under the circumstances, one would expect the magistrate to make known the day of return in some way. There are many ways in which this could be done.56 The most straightforward way to make this known is to require the magistrate, each day, to publish the specific day on which parties are expected to return. This has the advantage of saving the parties from negotiating the judicial calendar for themselves.57 One can only guess at the specific language to be published. One possibility is for the day to be published as part of the vadimonium order, for example, see D 2.8.8pr (Paul, Edict 14) with Metzger, Litigation in Roman Law (n 9) 96–97. Cf Platschek, Studien (n 30) 47. 55 For more extended arguments and literature, see Metzger, Litigation in Roman Law (n 9) 113– 114, 133–135. 56 See the literature cited in E Metzger, A New Outline of the Roman Civil Trial (1997) 53 note 63. 57 This follows the suggestion of A Rodger, “The lex Irnitana and procedure in the civil courts” (1991) 81 JRS 74, 83–84, who has nevertheless put forward a different interpretation of these postponements.

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In VIII kalendas Iulias vadimonia fieri iubebo.

If this statement, or something like it, were published for the greater part of each day on which justice was administered, waiting litigants would know precisely how to perform and record their vadimonia. One last and somewhat obscure piece of evidence may help to complete the picture. In the first book of his commentary on the edict, Paul gives an isolated rule that, on its own, gives hardly a trace of its original context. D 50.16.2.1 (Paul 1 ad edictum). “Cuiusque diei maior pars” est horarum septem primarum diei, non supremarum. “The greater part of each day” means the first seven hours, not the last.

Our starting-point is the assumption that some part of the edict directed that something should be done for the greater part of each day, and that Paul’s rule is attempting to explain precisely what this means.58 Lenel noticed that similar, formulaic language is used in several texts to describe publication by a magistrate,59 and this suggested that Paul was speaking about publication.60 The discovery of the lex Irnitana brought to light more examples of the formulaic language (including the one quoted above),61 each example relating to publication, and to that degree the lex Irnitana supports Lenel. Thus both Domingo and Rodger, with the benefit of the lex Irnitana, have followed Lenel and suggested that Paul is speaking about publication.62 Rodger has gone further and has tried to discover precisely where in Paul’s commentary this fragment was found. A fragment from the same book of Paul, placed in the Digest immediately before the fragment under discussion, considers the distinction between “urbs” and “Roma”.63 Rodger makes a strong case that this fragment is dealing 58 Johnston has argued that a substantial amount of the commentary we read in the opening books of the edictal commentaries was not edictal commentary at all, but rather commentary on local jurisdictional limits set forth in statutes: see Johnston, “Vadimonium” (n 25) 115, 118, 123. But Johnston does include this fragment: “Vadimonium” (n 25) 122. 59 See Lex repetundarum, l. 65 (M Crawford (ed) Roman Statutes II (1996) no 1, 72: “maiore parte diei”); Tabula Heracleensis l. 16 (Roman Statutes no 24, 363: “maiorem partem diei”). 60 Lenel, Das Edictum Perpetuum (n 3) 54 note 13. 61 Lex Irnitana, c 85, tab IXB, ll. 36–37; c 86, tab IXC, ll. 22–23; c 90, tab XA, ll. 29–30. 62 Domingo, Estudios (n 25) 56; Rodger, “Vadimonium to Rome” (n 25) 173–175; see also Johnston, “Vadimonium” (n 25) 122 (citing Rodger). Domingo cites Paul’s text as relevant both to the publication of intertium, as described in the lex Irnitana, and the publication of a vadimonium to Rome, as described in the lex de Gallia Cisalpina, col 2, ll. 21–22 (see Roman Statutes, no 28, 466). Though I argue below, like Domingo, that Paul’s text is relevant to the publication of intertium, Domingo’s understanding of intertium is utterly different from my own, and thus my understanding of what must be published “for the greater part of each day” differs from Domingo’s also. 63 D 50.16.2pr (Paul, Edict 1): “Urbis” appellatio muris, “Romae” autem continentibus aedificiis finitur, quod latius patet.

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with the subject of vadimonium to Rome.64 A fragment of Ulpian, placed in the Digest immediately after the fragment under discussion, also deals with vadimonium to Rome.65 Assuming no rearrangement of fragments in the editing, the fragment under discussion ought to be discussing vadimonium to Rome, or more specifically, some aspect of publication relating to vadimonium to Rome.66 But what exactly was to be published for “the greater part of each day”? Rodger suggests that the information to be published perhaps related in some way to the timing of the prospective appearance in Rome. The local magistrate might, for example, publish the day for which he would grant, on that particular day, a vadimonium to Rome, with due allowance for both the distance and the restrictions of the calendar.67 This was conjecture on Rodger’s part,68 but we can see now that it is somewhat better than conjecture since, as was discussed above, the lex Irnitana, in analogous fashion, appears to require the publication of the day of return for those litigants who need to perform vadimonia. For present purposes the question is whether Paul’s “seven-hour rule” held also for postponements in iure, that is, whether a local magistrate was expected to publish the day of return in a conspicuous place for, at least, the first seven hours of the day.69 Without evidence – and there is none – the most we can say is that this rule would be highly desirable. The reason is that litigants depend to a high degree on the existence of a regularised postponement procedure. No litigants can be assured that a magistrate will attend to their business on a given day, and no plaintiff can be assured that his defendant will return voluntarily. The very lawsuit is at stake: we know this because the praetor offered restitutio for actions lost through the delays and inaction of local magistrates.70 Given the uncertainties, what the litigants need, at 64 65 66 67 68

Rodger, “Vadimonium to Rome” (n 25) 169–173. D 50.16.3 (Ulpian, Edict 2). Rodger, “Vadimonium to Rome” (n 25) 173–175. Rodger, “Vadimonium to Rome” (n 25) 174. “There is, of course, no way in which we can know what matter relating to vadimonium was to be published for the greater part of each day”: Rodger, “Vadimonium to Rome” (n 25) 174. 69 There is no reason to suspect that Paul, in D 5.16.2.1, might actually be speaking of the ordinary vadimonium, rather than the vadimonium to Rome. The opening title of the edict does contain a good deal of material about purely local matters, but even if one accepts that this part of the edict regulated the extent of local jurisdiction (see Domingo, Estudios (n 25) 26–54, 88), or that some of the material in this part of the edict was included purely for local consumption (i.e., in anticipation that the edict as a whole was republished in individual communities: Johnston, “Vadimonium” (n 25) 114, 123), an edict on publishing days of return in local courts probably belongs elsewhere. In the edictal commentaries, the ordinary vadimonium is discussed in Ulpian 6, and Paul 6 and 7, ad edictum. Delays by a local magistrate administering justice are given in Ulpian 12 ad edictum (see D 4.6.26.4). Local statutes of course are also a likely home for provisions on publishing days of return in local courts. 70 D 4.6.26.4 (Ulpian, Edict 12), quoted above.

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the very least, is an assurance that the magistrate will order their return on another day, and thus perform the bare minimum needed to keep their lawsuit alive. The rule cited by Paul would assure them that, on days when justice is administered, they can count on the magistrate to perform this bare minimum for the first seven hours of the day.71 Therefore litigants who arrive to see an insurmountable crowd ahead of them, or who are simply impatient to wait, can read the magistrate’s words, for example, In VIII kalendas Iulias vadimonia fieri iubebo, make their vadimonium, and leave. The magistrate would be present to administer justice, in at least this very minimal way, for the first seven hours of the day.72 I. THE MURECINE ARCHIVE AS A WINDOW IN IURE The foregoing is the briefest sketch of postponements in iure. In many respects it departs from the common opinion. The common opinion developed over a time when information on procedure was very poor. Ideas about what a vadimonium was, and what it was used for, predated by several centuries the discovery of the first solid evidence describing it, Gaius’ Institutes. And the discovery of the Institutes, unfortunately, did not immediately help matters: what Gaius seemed to be describing (face-to-face meetings with the praetor) was too much at odds with the vadimonium the literature had conceived for itself (private agreements). As a result these private agreements were never discarded, but instead survived in the textbooks as a distinct species of vadimonium. This has left a very peculiar legacy. The vadimonium that is directly and repeatedly attested in the juristic literature, we are given to 71 Macrobius suggests that the calendar recognised a category of days, comperendini dies, on which a magistrate performed only this bare minimum; these were days on which “vadimonium licet dicere”: see Macrobius Saturnalia 1.16.14; Metzger, Litigation in Roman Law (n 5) 101–105. Cf the interpretation of Macrobius in Karlowa, Civilprozess (n 46) 364. 72 Tablets from Herculaneum and the Murecine archive, as well as some literary sources, provide evidence for the times of day at which litigants arrived, or at least anticipated arriving. Among the vadimonia and testationes sistendi from the Murecine archive, the third hour recurs most frequently, but there are also single examples with the first, second, fourth, and fifth hours, and two examples with the ninth hour: see Camodeca, Tabulae Pompeianae Sulpiciorum, 51. From the Herculaneum tablets, there are two (?) examples with the second hour (TH 13 = (?) TH 14), and one example each with the third (TH 15) and fifth (TH 6) hours. (For the texts, see the sources cited in Metzger, Litigation in Roman Law (n 9) 190–191, nos 34–37.) The literary sources have the fourth hour (Horace, Sermons 1.9) and some time before the fifth hour (Martial, Epigrams 8.67). (On the literary sources see the discussion in D Cloud, “The Pompeian tablets and some literary texts”, in P McKechnie (ed), Thinking Like a Lawyer: Essays on Legal History and General History for John Crook on his Eightieth Birthday (2002) 231, 235–237.) It is difficult to know whether any meaning can be got from these examples, particularly since Paul’s rule, on the construction suggested here, serves only as guidance to litigants who wish to “play it safe”.

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understand, has left behind no epigraphic evidence, while the other, private, vadimonium, of which no jurist speaks at all, has left behind an abundance of such evidence. The greatest store of these is in the Murecine archive. The mischief is not confined to interpreting vadimonium documents wrongly.73 In a document of any character, an allusion to vadimonium will be an important point of reference in the chronology of events, and if the allusion is misunderstood as a private, pre-litigation event, the true chronology is lost. This is a great shame, because the Murecine archive promises to give us a good deal of new information about how business was conducted in iure, and this particular misunderstanding, in effect, puts this new information out of reach. The two examples given above, iusiurandum and datio cognitoris, illustrate the problem: the appearance of the word “vadimonium” in the cited documents does not mark the iusiurandum as an extra-judicial iusiurandum, or the cognitores as extra-judicial cognitores. These documents are describing events in iure. In the case of the cognitores, the consequences of this misunderstanding are considerable. TPSulp 27 should not be cited as evidence of extra-judicial cognitores, but the problem is deeper than this. What is unique about the three documents in the case (TPSulp 2, 3, 27) is the fact that the parties did not simply decide to bring their case in Rome, but first brought their case locally, and then were ordered to Rome by the magistrate. No other collection of documents shows this pattern of events in a single case, so far as I am aware. Now it is conceivable that the magistrate ordered the transfer at the wishes of the parties, but it is equally possible – and perhaps likely – that he did so after an examination of the case. The reason is simply that defendants do not usually relish being sent to defend in distant forums, nor should they be sent there on a whim. Transfers of this kind often took place when a case exceeded the local jurisdictional limit,74 and that may well have been the situation here.75 Hence in these three documents we may have an example 73 Though there alone the threat of mischief is considerable. Elsewhere I have discussed how certain details appearing in the vadimonium documents reveal matters that took place in iure, matters of which we were previously unaware: see Metzger, Litigation in Roman Law (n 9) 82–87. 74 The principal evidence is the lex de Gallia Cisalpina, c 21, which allows the local magistrate to order vadimonia to Rome in actions on certa pecunia that exceed the local jurisdictional monetary limit; and the lex Irnitana, c 84, which gives the local magistrate a “residual” power to order vadimonia to the provincial governor in cases that otherwise exceed his own jurisdictional powers (based on both subject-matter and the amount in controversy). Also relevant is the lex agraria, ll. 34, 36, which gives the power to local magistrates in Italy to exact vadimonia in specific cases which certain magistrates in Rome had the sole competence to hear. On the Este Fragment, which preserves no provision on vadimonium but which at one time may have done so, see Metzger, Litigation in Roman Law (n 9) 24–26. 75 See Metzger, Litigation in Roman Law (n 9) 82–83); Wolf, “Der neue pompejanische Urkunden-

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of something common in practice, but otherwise unattested: a case brought locally which, on the examination of the magistrate, belonged in Rome.76 And the documents may be more useful still, on the subject of cognitores. Gaius’ second, more general formula for the appointment of cognitores, a formula which omits to name the specific action,77 would be suitable for this kind of case, where the local magistrate cannot confidently anticipate the specific action the praetor would be willing to grant. Whatever the truth, the documents provide a rare and fascinating view into events in iure.

fund” (n 5) 92; J G Wolff, “Aus dem neuen pompejanischen Urkundenfund: Die Streitbeilegung zwischen L Faenius Eumenes und C Sulpicius Faustus”, in Studi in onore di Cesare Sanfilippo VI (1985) 769, 782–783. The jurisdictional limit in Puteoli, however, is unknown. The best evidence that this case exceeded the local limit is the very existence of TPSulp 27 but, assuming this is the case, we do not know whether it was pushed over the limit by the additional claim for the recovery of the arra, or whether the magistrate, on review of the case, believed that Eumenes’ good-faith claim would ultimately exceed the local limit. 76 There may be an analogous case in the dossier on “Petronia Iusta” from Herculaneum: see Metzger, Litigation in Roman Law (n 9) 155–163, and esp 161–163. The dossier includes a series of witness statements which appear to have been prepared before three (or possibly only two) vadimonia to Rome were ordered by the magistrate. I have argued that the witness statements may have been prepared for the benefit of the magistrate who, on this theory, is charged with making a decision whether to order the case to Rome. The dossier lacks, however, any vadimonia for local appearance, such as we find in the case of Eumenes and Faustus. 77 Above, n 20.

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11 The Role of Delators O F Robinson A. INTRODUCTION Delatores are a vivid part of the image of imperial Rome;1 it is probable that they feature in any history covering the Principate. The picture is of low-born men, who had contrived to rise in the world through the rewards of their informing, pandering to the fears of imperial tyrants with unjustified accusations of treason, thus putting at risk the lives and estates of those honourable senators who scorned sycophancy; the implications are of calumny and greed. These men – accusers, informers – fall into the interesting area where law and history touch, and the word identifying them has even been accepted into the vernacular – delators, délateurs, delatori. But how far is the image true, and in what way? Tacitus is the chief foundation of our universal picture, but there is room to question both the reality and the context of what he says. We shall return to Tacitus. There is no doubting the real existence of delators as an element, indeed an essential element, of Roman legal procedure. The noun delator comes from the term nomen deferre, the process of laying a name before the magistrate; this was an essential first step in any trial before the quaestiones perpetuae, introduced in the later second century bc, although the noun is not evidenced before the Principate.2 In the absence of any state prosecution service it was up to some adult (male) citizen to bring any appropriate charge before the criminal or other relevant courts.3 Preference was normally given 1 Recent treatments are Y Rivière, Les Délateurs sous l’Empire Romain (2002); S H Rutledge, Imperial Inquisitions (2001); L Fanizza, Delatori e accusatori (1988); J G Camiñas, Delator (1983); J G Camiñas, La lex Remnia de calumniatoribus (1984); T Spagnuolo Vigorita, Secta temporum (1978); T Spagnuolo Vigorita, Exsecranda pernicies: delatori e fisco nell’eta di Costantino (1984). 2 Rivière, Délateurs (n 1) 23–27; the word appears in the lex coloniae Genetivae Iulia – but the inscribing of our copy was done under Trajan, see also M Crawford (ed), Roman Statutes I (1996) 395 – and twice in Livy. 3 As convincingly argued by W Kunkel, “Ein direktes Zeugnis für den privaten und Mordprozess” (1967) 84 ZSS (rA) 382. The praetor similarly offered actiones populares to repress unseemly or even illegal behaviour, such as de albo corrupto (damaging or falsifying the edict displayed), de sepulchro violato (violation of a tomb), or de positis vel suspensis (placing or hanging things to the danger of a passer-by): see F Casavola, Actio in factum, actio popularis (1958).

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to the victim, but the victim’s kin or indeed any concerned citizen might be heard. A potential problem was obviously the possibility that someone might use this right of accusation to pay off a private grudge; the problem was compounded when accusers were rewarded from the estates of those they successfully prosecuted. The employment of the term delator, as opposed to accuser or prosecutor, usually implies somebody without a personal stake who makes his denunciation in the hope of some profit for himself. The link between delators and calumny – taken in a wide sense: laying a charge, even a true one, is vexatious if you are doing it primarily for the rewards – is always in the background. Accuser (accusator) is the neutral term; informer (index) implies somebody on the fringes of the crime he denounces. Hence our earliest references to accusers who were not themselves victims are already pejorative. B. THE EARLY EVIDENCE In the Persa of Plautus a sycophant, a professional parasite, speaks disapprovingly of quadruplatores and their gains, and wishes there were a law to make the successful accuser give half his proceeds to the public purse.4 The precise status and importance of quadruplatores remains disputed, because there is very little evidence; they seem to have received one quarter of the estate of the person they successfully denounced.5 Their activities under this name continued into the first century, as we know from an allegation of Cicero’s concerning Verres.6 It is quite clear that they are the forerunners of the delators as known to us a century or more later. So, from as early as 200 bc, those who laid information could be seen as something of a pest, both as acting maliciously, and as motivated by the hope of reward. Actions were presumably brought by such delators under statutes like the lex Cincia of 204 bc, limiting gifts, including advocates’ fees, or the lex Voconia of 169 bc, putting bounds on female inheritance, or under sumptuary laws, such as the lex Fannia of 161 bc, limiting dinner parties, or the lex Aemilia of 115 bc, which was also linked with restrictions on exotic 4 Plautus, Persa 62–74. 5 J Camiñas, “Sobre los quadruplatores” (1984) 50 SDHI 461; J Camiñas, “Le crimen calumnia dans la lex Remnia de calumniatoribus” (1990) 37 RIDA 117; D Cloud, “The lex Papiria de Sacramentis” (1992) 80 Athenaeum 159, 182 (Addendum: “a note on quadruplatores”); G Wesener, “Quadruplator”, in G Wissowa et al (eds) Pauly’s Realencyclopadie der classisches Altertumswissenschaft XXIV.1 (1963) 710, 29. It was suggested to me by Dr Iain Rufford at a recent Classics seminar in the University of Glasgow that the word quadruplator may have been a comic invention of Plautus, and that the normal word would have been accusator, or even delator. 6 Cicero, In Verrem 2.8.22.

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music. One must ask, of course, how else were magistrates to learn about these offences against bonos mores, or about frauds on the grain supply, or the sexual misconduct of apparently respectable matrons; the interested parties would seldom wish these breaches to be known. The magistrates, among them the urban and peregrine praetors exercising civil jurisdiction, were probably inclined to trust their own judgment as to the authenticity of a denunciation; the need for a way of checking calumny may have been slow to emerge. Informers were vital in Livy’s portrayal of a scandal of 186 bc, shortly after Plautus’ time. According to his story, some sort of conspiracy, coniuratio, came into being among the worshippers of Bacchus. The conspiracy was revealed to the consuls, who could claim that it threatened the very fabric of the res publica, by a pair of lovers, Aebutius, a young equestrian, and Hispala Faecenia, a whore with a heart of gold, after an initial meeting between Aebutius’ aunt and the consul. As has been well said: “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?” 7 But Livy clearly found the topos of the informer suitable for his purposes. Other informers were encouraged; we know from the (so-called) SC de Bacchanalibus that grants of immunity or gifts of reward to these other informers were to be left to the discretion of the consuls. The rewards to Aebutius and Hispala seem generous. They were given, by senatorial decree, 100,000 asses each, sufficient to be rated in the first census class. Aebutius was to 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 may well have been barbed.8 Hispala was granted the right to alienate her property, presumably even against her tutor’s wishes, to marry outside the gens or clan, or to choose a tutor, just as though this had been granted by a husband in his will; also, explicitly, she could marry someone freeborn. It is not clear what these details mean, but she seems to have been 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.9 The Bacchanalian episode shows informers and rewards to 7 J A North, “Religious toleration in republican Rome” (1979) 25 PCPhS 85, 88. 8 See A Watson, “Bacchanalian rewards: Publius Aebutius and Hispala Faecenia”, in R van den Bergh (ed) Ex iusta causa traditum: Essays for Eric H Pool (2005) 411. Exemption from military service was also given to accusers rewarded with citizenship under the lex Acilia, but a Roman eques was in a very different position; for such a man to act as an informer was not decent behaviour. 9 The obscurity is partly because this is the only use of the term enuptio gentis; see A Watson,

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informers firmly established in Roman society, although in this instance the veracity of the accusers was not brought into question. C. SOCIAL ATTITUDES TO DELATORS Delators were, as already mentioned, necessary to initiate proceedings before the ordo iudiciorum publicorum, the standing criminal courts established in the later second century and systematised by Sulla. They were also prominent in the context of the proscriptions, although the term, in spite of being pejorative, does not appear in the historians. (The laying of these informations was perhaps technically more akin to the bringing of one of the praetorian actiones populares.) The proscriptions, first of the Marians, then of Sulla, and then some forty years later of the second triumvirate, show a society where people were encouraged to denounce the proscribed, even when these were colleagues, friends or family, and were rewarded for their betrayals, often with the estates of their victims. It is against this background that Cicero made his speech on behalf of Roscius of Amerinum. First, the hope of acquiring Sextus Roscius senior’s farms was clearly an entirely credible motive for putting Sextus Roscius’ name posthumously on the proscription lists, and for denouncing his heir as a parricide. But more interesting for us are Cicero’s remarks on the ethics of prosecution: 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.10

Cicero nevertheless viewed with contempt those who made a profession of accusing. Erucius, apparently a freedman, was vilified for lacking personal enmity towards Roscius; he had simply been bought for his rhetorical skills.11 A contrast can be drawn with Cicero’s opponent in pro Cluentio. Titus Attius, prosecutor of Cluentius, was an eques from Pisaurum, a town relatively easy of access from Larinum, on the way to Rome along the via Flaminia; his status and this proximity suggest that there may well have been ties of friend“Enuptio gentis”, in A Watson (ed), Daube Noster: Essays in Legal History for David Daube (1974) 331. Since her social status was low, it is less likely that her reward was double-edged. The right to marry a freeborn man must be aimed at Aebutius, but at this period it was certainly not illegal, however unbecoming, for an upper-class man to marry a freedwoman. 10 Cicero, Pro Roscio Amerino 20.55–20.56. 11 Cicero, Pro Roscio Amerino 19.55.

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ship between him and young Oppianicus, the real instigator of the accusation, which would justify his role.12 Cicero unsurprisingly was rather more measured in a philosophical work of later years.13 Pleading in the courts was a path to glory, but there were only two choices, “defending or accusing. It is much more commendable to defend than to accuse, even though the latter has sometimes brought a considerable reputation.” Cicero then gave some examples. “Nevertheless, accusation should be done seldom, or even never, unless it be undertaken on behalf of the res publica, … or on account of some injury received.” Loyalty, of course, whether personal or to a province or city, could sometimes justify prosecution, as with Cicero’s own prosecution of Verres. 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: “once or so it is allowable enough, but by no means often”. Accusations must be made with moderation, not savagery, and should never put an innocent person at risk. It was permissible to speak on behalf of the undoubtedly guilty, as custom allowed and humanity suggested, and an advocate might even sometimes be economical with the truth. But best of all was to defend the innocent oppressed. The Romans viewed prosecution very differently from us. For us it is something official, where personal interest diminishes credibility; a procurator fiscal or district attorney is pursuing an honourable career. For the Romans, however, personal enmity or desire for revenge were considered to be good moral grounds for prosecuting, whether the prosecutor was the victim of a crime or connected with the victim. This was because the Romans held that a degree of self-help was normal and proper in a citizen’s life. To initiate violent action was wrong, and became more so as the Empire developed, but they held that there should be a balance in society between the interests of state and of individual – perhaps not so very different from the culture of the American Wild West: “The ordinary Roman had to be his own policeman, but he would have needed a reasonably accessible procedure to deal with capital crimes.”14 There was, of course, no police force, as indeed there was not in modern Europe until the eighteenth century at the earliest; the Urban Cohorts existed to maintain order, not to pursue or repress crime. 12 M C Alexander, The Case for the Prosecution in the Ciceronian Era (2002) 176. 13 Cicero, De Officiis 2.14.50. 14 A Lintott, The Constitution of the Roman Republic (1999) 156. But private initiative could use the public courts; an example is the report of a suspected crime by the missing man’s freedmen in Cicero, Pro Cluentio 13.38: Wesener, “Offensive Selbsthilfe im klassischen römisches Recht”, in H Fischer (ed) Festschrift Artur Steinwenter zum 70 Geburstag (1958) 100.

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Self-help was approved, not because the forces of law and order were inadequate, but because it was in itself morally good,15 and this particularly applied to domestic offences such as rape and adultery.16 Quintilian, a century and a half after Cicero, expressed, in not very different terms, what was doubtless a widespread senatorial attitude to accusers: A good man will undoubtedly prefer defence to prosecution, but he will not have such a rooted objection to the task of accuser as to disregard his duty towards the state, or towards individuals, and refuse to call a man to render an account of his way of life. For the laws would be powerless without the assistance of advocates to support them; and to regard it as wrong to demand the punishment of crime is almost equivalent to sanctioning crime. … Our orator’s conduct will be governed, not by a passion to secure the punishment of the guilty, but by the desire to correct vice and reform morals; for fear is the only means of restraining those who cannot be led to better ways by the voice of reason. But to devote one’s life to the task of accusation, and to be tempted by the hope of reward to bring the guilty to trial is little better than making one’s living by brigandage – latrocinium.17

To prosecute for pay was shameful, or even criminal. Pliny, at the end of the first century ad, felt uncomfortable with prosecuting, even where he saw it as his duty; he too was much happier acting for the defence. He wrote that his having undertaken three prosecutions, of Baebius Massa, Marius Priscus and Classicus, might relieve him from any further duty of prosecution – still a problematic duty, even when the accusation was fully justified. For him, as he tells us, the worst feature of a successful prosecution was the downfall of a senator.18 Criminal prosecution, even apart from the rewards, and the temptation of calumny, was thus morally dubious, rather than neutral. It could be justified, but it needed justification. The picture painted by Tacitus has its focus particularly on what could be alleged to be unjustified; this was part of his description of the tensions between Senate and Emperor. His tirades against delators show that he saw such men largely as senators whose lack of character and wealth disgraced their order. The topos is not so different from Cicero’s treatment of the senatorial iudices who had accepted bribes in Oppianicus’ trial. These delators are men playing politics; they are not concerned with daily crime. 15 A Lintott, Violence in Republican Rome (1968) 25; cf G Wesener, “Offensive Selbsthilfe” (n 14). 16 Seneca, Ira 1.21.3; Quintilian, De institutio oratoria libri duodecim 7.4.6; Aulus Gellius, Noctes Atticae 10.23; Valerius Maximus, 6.1.13. Cf A A Manfredini, “Galba negabat”, in J W Cairns and O F Robinson (eds) Critical Studies in Ancient Law, Comparative Law and Legal History: Essays for Alan Watson (2001) 93. 17 Quintilian, De institutio oratoria libri duodecim 12.7.1–3. 18 Pliny, Epistulae 3.4.7–8.

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D. DELATORS AND THE TREASURY What other delators do we recognise? Virtually none of those operating in the criminal courts, for every day crime was not in general of interest to either historians or jurists. In the Empire, however, we hear much, even if anonymously, about those in the fiscal sphere. We have mentioned the lex Cincia and the lex Voconia, and then there were the various attempts at sumptuary legislation. We learn very little of such delators in the Republic, but they must have existed; perhaps their social obscurity explains why the term delator is not evidenced before the Principate. It is quite possible that there may be some link with the praetor’s development of actiones in factum; these were available against behaviour not exactly criminal, but seen as deserving of repression, and on occasion led to rewards for the successful pursuer. Yet, perhaps partly because of these actiones in factum, the praetor introduced the action of calumny, itself an actio in factum, to check malicious or vexatious accusations; the literary evidence stresses calumny in the context of penal law, but it must not be overlooked that its application was just as much to civil or fiscal litigation.19 Gaius tells us that an oath against calumny might sometimes be demanded; the action for calumny, for one tenth of the amount claimed, was always competent, while the counter-action (actio contraria) was restricted to certain cases. The counter-action imposed a more severe sanction because it made the pursuer flatly liable to what he had claimed from the defender; in the normal action: No one is condemned for the one tenth unless, being aware that his case was not good, he began the action to vex his opponent, and in the hope of winning through the judge’s error or injustice rather than by reason of the truth. For calumny, like the crime of theft, lies in the intention.20

Perhaps the oath against calumny was imposed on one party by the praetor, rather than demanded by the other party,21 and linked to a praetorian stipulation causa cognita or an application for missio in possessionem; this would be because the praetor was providing a control for his own remedies, particularly in such cases as actions for iniuria, where there could be no predetermined sum at issue. It is interesting how the Romans used procedures rather than substantive law; they adjusted their techniques to new attitudes rather than introducing new law. This is one reason why their law was so technical, so 19 D 3.6.1pr-3 (Ulpian, Edict 10); compare D 5.1.10; 37.15.5, both also from Ulpian, Edict 10. 20 Gai Inst 4.171–4.178. The context of the Institutes explains the lack of reference to criminal litigation. 21 As E Metzer, Litigation in Roman Law (2005) 65–135 has shown was true of vadimonium.

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demanding of juristic skill. It also links with Roman social attitudes, with the relatively ready access to juristic advice that clientage might give even to the humble man. Roman society was, in general, law-using and law-abiding, as Krause had said.22 Horace’s description of the good man as one who not only obeyed the law but also was ready to act as witness or iudex or surety is relevant here.23 However, the civil penalties seem to have come to be reckoned an insufficient deterrent, perhaps in contrast to the capital penalties laid down in the ordo, and the lex Remmia or Remnia was passed to control accusations more closely, probably in 91 bc but certainly before 80 bc and after the tabula Bembina. Its penalty was presumably infamy, depriving the guilty man of the right to accuse, or to act on behalf of others.24 The branding or tattooing of the culprit with a K, threatened by Cicero,25 is at this period almost certainly metaphorical, entering a K beside the name on the praetor’s album. (Physical branding or tattooing was a penalty at this stage only imposed upon fugitive slaves.26) It is not impossible, as Camiñas held, that the penalty could as early as this be the infliction on the delator of the sanction which would have been imposed upon one successfully accused, but it is not evidenced for this period.27 The Romans believed generally in tit for tat: the successful prosecutor in cases of ambitus seems to have taken the rank – but not the actual office – of the one he accused, just as the peregrine or Latin accuser under the tabula Bembina received citizenship in the tribe of the one he had successfully charged; these were the spolia of successful prosecution.28 The next stage in the story is the growth in the numbers of delators, particularly delators to the treasury, increasingly the fisc rather than the aerarium. Indeed, as already remarked, it is only now that the term delator comes into use. Augustus’ legislation on marriage and children and on fideicommissa enlarged the potential areas of delation, stretching them beyond the treasury’s interest in the lex Cincia and the lex Voconia. Under him adultery too became a crime of the ordo, a crime which could, with some restrictions, be prosecuted by any adult male citizen, and a crime which, unlike the majority of 22 23 24 25

J-U Krause, Kriminalgeschichte der Antike (2004). Horace, Epistulae 1.16.40–43; cf Juvenal, Saturae 8.79–8.84. D 50.2.6.3; D 48.2.4; D 48.2.8–9; 3.1.6; cf Camiñas, “Le crimen calumniae” (n 5) 88. Cicero, Pro Roscio Amerino 19.55; 20.57; cf D 22.5.13: those convicted of calumny or collusion were not forbidden by the lex to give testimony in criminal trials, but the fact must have weighed. 26 C P Jones, “Stigma: tattooing and branding in antiquity” (1987) 77 JRS 139. 27 Camiñas, “Le crimen calumniae” (n 5). 28 M C Alexander, “Praemia in the quaestiones of the Late Republic” (1985) 80 Classical Philology 20.

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crimes of the ordo, was in itself apolitical and relatively widespread, if hardly normal. Further, under the lex Iulia loving husbands might be viewed as complaisant pimps, and charged with lenocinium; offences under the lex Scantinia were also dealt with in the adultery court. Moreover, adultery was not only a crime, but it had repercussions on the legitimacy of children; apart from natural family interests, this might affect the privileges known as the ius liberorum. The apparent growth in the number of delators seems to have been an inadvertent result of laws intended to support marriage and the family.29 As Tacitus put it, these Augustan laws: failed to popularise 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 PapianPoppaean Law, under which failure to earn the advantage 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.30

Tacitus’ remark is compatible with the lack of any legal text referring to delators in connection with penal law or procedure,31 although the jurists of the later Principate certainly wrote on fiscal denunciation. Yet it is noteworthy that it is at just the same period, the beginning of the Principate, as the fiscal delator seems to play a much enlarged role that the literary figure of the delator appears, a figure to some extent the construct of Tacitus. The delator seen in this light was essentially someone who, for unworthy motives, denounced treason, res repetundae, and other crimes affecting the public – or imperial – wellbeing to the Senate, himself often being a senator. The rewards offered to such men were not necessarily pecuniary. For instance, after the trial of Piso senior in ad 21, Tiberius rewarded the three main prosecutors not with Piso’s estate but by putting them forward for priesthoods;32 Tiro he promised to help in his official career, and indeed did so, but also warned him to be less aggressive. Nevertheless, Dio could say that under Tiberius all who accused any persons received money, and large sums too, both from the victims’ estates

29 O F Robinson The Criminal Law of Ancient Rome (1995) 100; for the earlier period, see, e.g., Cicero, In Verrem 2.1.47.123–24. 30 Tacitus, Annales 3.25, 3.28.3. 31 One text mentions a general context: D 47.15.7 (Ulpian, de cens 4): “In omnibus causis (praeterquam in sanguine) qui delatore corrupit ex SCo pro victo habetur.” 32 Tacitus, Annales 3.19.1. 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: Annales 2.32.1; in ad 24, in a repetundae case, Tactius has M Lepidus say that the law required that a quarter of a condemned man’s estate should go to the prosecutors: Annales 4.20.2.

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and from the public treasury, as well as various honours.33 It is in fact clear that rewards were tailored to status, so that money, lands, and office were suitable for different people; for slaves it was their freedom and peculia. Various of the statutes setting up quaestiones perpetuae had laid down rewards; most commonly we hear of a quarter of the estate of the condemned, although this might have to be shared. Yet it is clear that, above all, it was the treasury which benefited from the role of delators, whether penal or fiscal, whether through fines or confiscation, through tax penalties or estates lapsing to the fisc (whether as bona caduca or vacantia). Tacitus’ picture is so convincing that it is quite hard to remember that there were indeed plots against the emperors, and also that the plundering of provincials by officials did not make Rome’s Empire easier to govern. Somebody writing in the Stoic tradition was not readily going to admit the desirability of loyalty to the emperor, a loyalty particularly required in the interests of stability after the horrendous civil wars of the late Republic. It does, however, seem likely that the problems caused by malicious accusers were more blatant in the early Empire than they had been earlier. We have no recorded comment from Augustus, but Claudius, in a speech to the Senate between ad 42 and 51, tried to regulate accusations.34 It was, however, the SC Turpillianum of ad 61 which absorbed the lex Remmia and other controls on prosecution. It became the basic source dealing with all three procedural offences – calumny, collusion, and tergiversatio, and also perjury.35 Calumny (calumnia) was defined as 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), apparently introduced at this time, perhaps seems to us 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.36 Pliny was careful to avoid a 33 Dio 58.4.8. But see R S Rogers, “The delatores under Tiberius” (1934) 65 TAPhA lii. 34 FIRA I 44, 285. 35 See Robinson, Criminal Law (n 30) 99–103; Camiñas, La lex Remnia (n 1) 113–122; D A Centola Il crimen calumniae (1999); S Pulatti “Per una storia del crimen calumniae” (2002) 30 Index 383. 36 O F Robinson, “Amnesty and pardon; rule and practice in Roman law”, in Règle et Pratique du Droit (1999) 79.

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charge of tergiversatio in withdrawing his case against Classicus’ daughter.37 The SC Turpillianum did not deal with the question of advocates’ fees, though this had been raised as long ago as the lex Cincia; other SCC were passed to deal with this problem.38 It did cover not only the accuser himself, but also one who employed a man of straw to make the accusation;39 certain persons, on the other hand, could make an accusation without fear of calumny, such as a parent pursuing the death of a child, or a man making an accusation of adultery by right of being the husband.40 Suitable penalties under the SC Turpillianum might be a fine of five pounds of gold,41 a ban on bringing any prosecution (except one where his own interests had been harmed),42 a ban on acting as an advocate for a number of years,43 degradation, that is, removal from the Senate or the local council,44 or even relegation.45 Fiscal delators were important for the management of the res publica. Even somebody charged with a capital offence, but obviously not yet condemned, could delate to the fisc.46 The occasions for such denunciations, as given by Callistratus, include wrongful acceptance of a fideicommissum, failure by heirs to avenge a death,47 the naming of an unworthy heir, a missing will or codicils when the emperor had been instituted heir, the finding of treasure, defrauding the fisc through under-purchase or praevaricatio, the death of someone under a capital charge, the destruction of a house [perhaps under the SC Volusianum?], the abandonment of an accusation, the offering for sale of the object of a lawsuit, a penalty due to the fisc arising from a private contract, and the commission of some offence against the laws.48 Nobody who found treasure was on that account alone compelled to delate himself, unless a share was due to the fisc; if, however, he found treasure on fiscal

37 Pliny, Epistulae 3.9.19–21. 38 Cf. Pliny, Epistulae 5.13.6–8. 39 D 48.16.1.13 (Marcian, The Senatus Consulum Turpilianum sole book); cf D 48.16.15pr (Macer, Criminal [Proceedings] 2). 40 D 48.1.14 (Papinian, Replies 16); D 4.4.37.1 (Tryphoninus, Disputations 3 ). 41 D 47.15.3.3 (Macer, Public Prosecutions 1), who says this penalty was laid down in the SC. Such fines are more common in the Later Empire. 42 D 47.15.5 (Venuleius Saturninus); D 48.2.4 (Ulpian). 43 Pliny, Epistulae 5.13.5. 44 D 50.2.6.3 (Papinian); Sententiae Pauli 5.4.11. 45 Tacitus, Annales 14.41; Sententiae Pauli 5.4.11. 46 D 48.2.21 (Papinian). 47 Or by some other interested party; when a husband failed to prosecute the murder of his wife, the emperor Severus laid down that he forfeited what he owned dotis causa: D 49.14.27 (Ulpian, Edict 37). 48 D 49.14.1pr (Callistratus, Fisc 1). The property of the condemned should not be awarded to the fisc if the sentence was less than permanent exile: D 49.14.39pr (Papinian, Responses 16).

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land and did not declare it, he was liable for double the value.49 There were difficulties in deciding what amounted to evasion rather than avoidance, and interpretation seemed to require that there be a positive undertaking to fulfil an illegal fideicommissum; outcome, rather than intention, was generally held to apply.50 (Documents frequently came to light – one wonders how – proving the existence/performance of a tacit fideicommissum.) Somebody who delated himself to the fisc in error was not to be prejudiced, that is, if the error of laws was pardonable.51 Delators could seek an annulment but, of course, they ran the risk of calumny and could be punished as though for tergiversatio. If someone suborned a delator to inform, he was liable to the aerarium for the sum with which the delator would have been rewarded had he not been calumnious. Similarly, a non-appearing delator was liable to the treasury for the sum which it would have received had he made good his denunciation of a possessor who appeared in court.52 Dealing (almost certainly) with the penalties for childlessness and celibacy, Trajan laid down that if, before a denunciation had been made, someone admitted that he did not have the right to property, whether or not it was in his possession, he should take one part and the aerarium or fisc another part.53 It is clear that this was viewed technically as a reward (praemium) and not an entitlement, for previous to a ruling by Trajan’s successor, Hadrian, it had been argued that heirs should not get this share if the self-denouncer died before receiving it.54 Those who came to an agreement with their denouncers were taken to have acknowledged liability if they paid any money, however small a sum.55 But, as Marcian tells us, delation was not honourable; that was why veterans and serving soldiers could not delate. However, all persons, even senators, even women, could denounce themselves or claim for themselves along with the fisc, and did not thereby become infamous even if their action failed. It was accepted also that the reputation of those undertaking a denunciation was not injured by the act when, for example, they were seeking not a reward but revenge, or the good of their local community.56 As Paul put it: Delator non est qui protegendae

49 D 49.14.3.11 (Callistratus, Fisc 3). 50 D 49.14.3pr-2 (Callistratus, Fisc 3). 51 D 49.14.2.7, (Callistratus, Fisc 3) citing imperial rescripts; D 49.14.13.10 (Paul, On the Lex Iulia et Papia 7). 52 D 49.14.15pr-2 and 4 (Mauricianus, On the Lex Iulia et Papia 3). 53 D 49.14.13pr-1 (Paul, On the Lex Iulia et Papia 7). 54 D 49.14.13.4–6 (Paul, On the Lex Iulia et Papia 7). 55 D 49.14.4 (Ulpian, Edict 6). 56 D 49.16.2pr (Callistratus, Fisc 2).

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causae suae gratia aliquid ad fiscum nuntiat.57 Any denunciation must be backed by full documentation, and informers must publish the name of any mandator, so that he too would be liable to any punishment for calumny;58 suspicion of calumny was an occupational hazard. Since nobody was forced to be an informer, an informer was not free to drop his denunciation if acting under mandate, unless he could prove his mandator had withdrawn.59 Interestingly, in the absence of a delator, the burden of proof was on the fiscal advocate, for nobody could be compelled to reveal whence he had obtained something.60 Fiscal delation, although it must have been covered by the SC Turpillianum, remained a fruitful field for juristic commentary because the role of the fisc was growing throughout the history of the Empire, since fiscal policies changed in a way that criminal law did not, and, of course, the fisc had an interest in a huge range of transactions: the texts talk of inheritances and legacies, fideicommissa, usury, taxes (on sales, inheritance, etc) and of estates without an heir or which fell to the fisc for some other reason. E. CONCLUSION: THE DISAPPEARANCE OF DELATORS And yet, interestingly enough, the literary figure of the delator was already beginning to fade in the lifetime of Tacitus and Pliny, and was effectively to disappear in the course of the second century. This is linked no doubt with the change in the dynamic between emperor and Senate under the Flavians and Antonines. However, it is also certainly connected with the change in penal procedure from an accusatory to an inquisitorial process, that is, from the accuser, often with a personal interest, attacking the defender before a judge or judges who heard the arguments and evidences put forward by both parties, to someone laying an information before the court leading to an inquisitorial process by the judge.61 This started in the Senate, where crimes were largely political, but 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. In the literary sources there are approving remarks about the policy of various emperors towards delators. Tiberius quashed a proposed luxury law 57 D 49.14.44 (Paul, Views 1). 58 D 49.14.2.5 (Callistratus, Rights of the Imperial Treasury 2) citing Pius; D 49.14.24 (Marcian Informers sole book) 59 D 49.14.22.3 (Marcian, Informers sole book) 60 D 49.14.25, (Ulpian Sabinus 19) citing Severus. 61 Rivière, Délateurs (n 1) 263–278.

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in ad 22;62 sumptuary legislation had always been hard to enforce, and must have been impossible without the use of delators. Nero restricted praemia, rather obscurely by three-quarters.63 Suetonius praised Titus for dealing severely with them, and they seem in his account to have been excluded from the protection of the lex Iulia de vi; their treatment proves they cannot have been the senatorial form of this plague.64 They were a pest under Domitian, although he exiled some, so Pliny praises Trajan for having exiled delators, not senators, and filled the punishment islands of the Mediterranean with these scourges;65 again the contrast with senators must mean that he was thinking of the fiscal delator. Their repression was intermittently expedient (like astrologers, etc) but the fisc had need of them, and it would be hard to deny that it was the imperial duty to support the legal claims of the fisc. Delators continued then to exist, as shadows in the literary sources, more clearly in the legal sources. One must remember that the role of all delators, whether fiscal or criminal, led to the enrichment of the treasury; this would never be popular. The legal sources portray only the anonymous delator to the fisc. The apparent lack of interest in criminal delation may have several causes. What was legally interesting about delators as such was not their accusations – which needed to go to trial – and still less their rewards, but the possibility of calumny; the SC Turpillianum did receive comment, even if not in the overtly criminal sphere. It was presumably a satisfactory piece of legislation, since it survived, interpreted but not substantially revised. Further, criminal procedure changed during the Principate. In the first century ad the model of the ordo was dominant; Senate procedure was not bound by it, but it imposed its pattern nevertheless. Then, during the second century, there was a move to what is loosely called cognitio, away from an accusatorial and towards an inquisitorial process. The literary figure of the delator, the (relatively) independent accuser, disappeared; the people described by Ammianus as delators are themselves judges, or at least part of the machinery of justice; informers, humbler men, supplied them with the charges to be brought. The compilers knew only a penal procedure that was largely, not exclusively but largely, initiated ex officio, they may have chosen to omit obsolete technicalities. Finally, the role of the actual accuser, whether personally involved or motivated by greed, became a riskier function through the change in the definition of calumny: failure to make a charge stick, rather 62 63 64 65

Tacitus, Annales 2.33; cf 3.52.5, 3.56.1. Suetonius, Nero 10.1. Suetonius, Titus 8.5. Pliny, Panegyricus 35.2; cf 42.1.

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than charges made in bad faith. These changes were accompanied by the increasing use of torture, on witnesses as well as the accused, which made mere apology for error or hastiness much less acceptable.66 The delators of literary drama, Tacitus’ vexatious accusers, fade from the scene soon after their immortalisation, after a span of a century or so; they seem never to have been part of the reality of jurists qua jurists, although as senators the jurists may have recognised them all too well. Fiscal delators were part of the machinery of state, and they operated mostly under a separate fiscal jurisdiction. Delators in the Digest are not men of honour; they rank perhaps as garbage collectors, but they were still not criminals. For instance, Ulpian refers to the “unseemliness” of delatoria curiositas,67 which sounds rather like the worst sort of tabloid investigative journalism. Delators in the juristic view were boring, but important, linked not to penal but to fiscal law. In the Later Empire, delation in the old sense was generally forbidden,68 although some accusations, such as those of magic and soothsaying, or of the giving or taking of bribes by senior officials, were explicitly exempt from being classed as “delation”.69 In the juristic and literary sources alike, in the Later Empire it is calumny, not delation, that is prominent.

66 Y Thomas, “Les procedures de la majesté”, in M Humbert and Y Thomas (eds), Mélanges de droit romain et d’histoire romain à la mémoire de A Magdelain (1998) 477. 67 D 22.6.6 (Ulpian, On the Lex Iulia et Papia 18), talking of mistakes of law and fact: there is no excuse for supine ignorance of fact, but scrupulous inquiry is not required. The sort of knowledge looked for is that which does not excuse gross ignorance or laxity but does not demand the curiosity of an informer. 68 “Acts of Cyprian 1”, in H. Musurillo (ed), Acts of the Christian Martyrs (1972); Cyprian, Letters 77.2.1–2; FIRA I 94, 458–461; CTh 10.10.10. 69 CTh 9.16.1; C 9.27.6.

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Index Accursius, 21 Actio aquae pluviae arcendae, 11, 14, 15, 17, 18, 19, 85, 184 Actio conducti, 144, 145, 161, 164 Actio contraria, 212 Actio de peculio, 179, 183 Actio depositi, 174 Actio exercitoria, 161, 179, 180, 183 Actio institoria, 179 Actio legis aquiliae, 184 Actio locati, 161, 163 Actio quod iussu, 179 Actio tributoria, 182 Actio tutelae, 62 Actiones adiecticiae qualitatis, 167, 170, 172 Actiones in factum, 212 Actiones populares, 209 Adultery, 214 Aemilius Macer, 100 Alfenus Varus, Publius, 13, 159 Ambitus, 213 Arabia, Roman province of, 53, 55, 56, 59, 61, 62, 63, 65, 66, 67, 69, 71, 72, 73, 77, 78, 81 Augustus, 89, 91, 92, 127, 131 Babatha archive, 7, 54 Bar Kokhba revolt, 54, 69 Barter, 31, 33 Basilica, 160, 161 Bonorum possessio, 131 Breviarum Alarici, 159 Byzantium, 14, 20, 27, 28, 29, 31 Callistratus, 100, 165 Capitis diminutio, 131 Capito, Gaius Ateius, 99, 100

Caracalla, 40 Cassius Longinus, Gaius, 14, 15, 16, 26, 102 Celsus, Publius, 16, 176 Centumviral court, 125, 133, 135, 137 Chirographum, 192 Cicero, Marcus Tullius, 85, 87, 91, 94, 96, 141, 142, 207, 209, 211 Code Civil, 18, 20 Codex Gregorianus, 49, 89, 114, 115 Codex Hermogenianus, 89, 93, 114, 115 Cognitio, 47, 99, 135, 145 Cognitores, 188, 190, 191, 192, 205 Collatio legum mosaicarum et romanarum, 117 Conductor, 140, 141, 143, 144, 145, 146, 147, 148, 149 Constantine, 46, 97, 98, 108 Constitutio Antoniniana, 39, 41, 42, 43, 45, 47 Cretio, 130 Daube, David, 6, 33 Delict, 21 Diocletian, 45, 46, 105, 106, 107, 113, 114, 116, 119, 120, 145 Domat, Jean, 19, 20, 21 Domitian, 134 Edict, 12, 107, 108, 111, 112, 119 Ercto non cito, 10, 11 Filiusfamilias, 168 Florentine MS, 17 Gaius, 23, 28, 32, 33, 34, 39, 100, 179, 193, 194, 195, 197, 203 Gifts, between spouses, 6, 28 221

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Gordian, 145 Hadrian, 47, 127, 217 Hereditas damnosa, 130 Herodian, 69, 76 Humanism, 35 In ius vocatio, 192 Interdictum quod vi aut clam, 184 Intertium, 198, 199, 200 Iudex vice caesaris, 47 Ius Aelianum/Tripertita, 88, 89 Iusiurandum, 188, 189, 190 Judaea, Roman province of, 56, 57, 59, 60, 61, 65, 66, 68, 69, 71, 73, 75, 77, 78, 81 Julian (Salvius Iulianus), 87, 88, 143, 165, 166 Justinian, 15, 18, 86, 98, 101, 102 Kaser, Max, 42, 49, 140, 151 Labeo, Marcus Antistius, 14, 16, 17, 88, 158, 164 Lactantius, 108, 113, 120 Law of Citations, 88 Legal Pluralism, 44 Lex Aquilia, 21, 28, 29 Lex Calpurnia de Repetundis, 91 Lex contractus, 169, 171 Lex Cornelia sumptuaria, 28 Lex Falcidia, 137 Lex Irnitana, 7, 8, 198, 199, 200, 201, 202 Lex praepositionis, 169 Lex Rhodia de iactu, 159, 160, 163, 167, 168, 170, 171, 172 Lex Romana Visigothorum, 47 Litis contestatio, 199 Locatio conductio operarum, 140 Locatio conductio operis faciendi, 140, 162 Locatio conductio rei, 141, 143, 147, 148, 152, 162 Locator, 140, 141, 146, 149, 150

Maecianus, Lucius Volusius, 100, 101, 159, 160, 166, 171 Magister navis, 161, 180 Mancipatio, 127, 128 Marcellus, Ulpius, 15, 25, 136, 150 Marcian, 135 Maximinian, 45, 105, 106, 107, 145 Missio in possessionem, 212 Mitteis, Ludwig, 42, 43, 44 Mommsen, Theodor, 6, 39, 142 Murecine archive, 8, 188, 203, 204 Nabatea, Kingdom of, 56, 64 Noxal surrender, 10 Ofilius, 13, 159, 163 Operis novi nuntiatio, 184 Orbi, 131 Papinian (Aemilius Papinianus), 91, 164 Papirius Fronto, 159, 165 Paraphrasis (Theophilus), 29 Paterfamilias, 10, 25, 179, 180, 181, 183 Patriapotestas 126, 127 Paul (Iulius Paulus), 25, 26, 33, 149, 160, 162, 164, 165, 175, 201 Peculium, 173, 174, 175, 176, 177, 178, 179, 180 Pomponius, Sextus, 88, 100, 103 Pontiffs, college of, 23 Pothier, Robert, 18, 19 Probatio operis, 142 Proculians, 32, 33 Proculus, 32 Quadruplatores, 207 Quaestiones Perpetuae, 47, 206, 215 Quasi-delict, 21 Querela inofficiosi testamenti, 132, 133, 134, 135, 136 Recuperatores, 196 Rescripts, 40, 106, 114, 147 Romanisation, 47, 48, 53, 81 Sabinians, 32, 33

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Sabinus, Masurius, 14, 15, 32, 102, 159, 165 Salome Komaïse, 54, 55, 56 Saturninus, Claudius Venuleius, 100, 101 Scaevola, Quintus Mucius, 10, 13, 18, 88, 89, 90, 141 Scholasticism, 35 Senatus consultum Claudianum, 26 Senatus consultum de Bacchanalibus, 208 Senatus consultum Orphitianum, 133 Senatus consultum Silanianum, 24, 26, 27 Senatus consultum Turpillianum, 215, 216, 218 Sententiae Pauli, 159, 160, 167, 168, 170 Servius Sulpicius Rufus, 10, 85, 159, 161, 162, 163 Severus Alexander, 22 Sextus Aelius Paetus Catus, 88 Shelamzion, 54 Solon, 87 Speculum Iuris, 5, 6, 22, 27 Stipulatio, 34, 96

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Sui heredes, 129 Syro-Roman Law Book, 47 Tabula Bembina, 213 Tenement buildings, 151–2 Tetrarchy, 107, 113 Theodosian Code, 5, 89, 92, 93, 94, 95, 98, 102 Trajan, 217, 219 Trebatius Testa, Gaius, 12, 13 Tribonian, 96 Tubero, Quintus Aelius, 176 Twelve Tables, 9, 11, 15, 16, 23, 85, 88, 94, 100 Ulpian (Domitius Ulpianus), 12, 14, 16, 17, 29, 30, 39, 45, 90, 100, 103, 134, 143, 144, 149, 164, 169, 176, 177, 180, 181, 196, 197, 202 Unde cognati, 132 Vadimonium, 189, 191, 192, 193, 194, 195, 196, 201, 202, 203

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