The Economy of Friends: Economic Aspects of Amicitia and Patronage in the Late Republic 2870312105, 9782870312100

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PREFACE

After receiving a lot of attention from ancient historians in the late seventies and eighties patronage as an object of study is again ‘out’. The study of patronage and amicitia has always been biased towards their political potential. Today, however, the traditional view of Roman amicitia and patronage as stable political party-like associations used by the aristocracy to effectively control the people’s votes has been virtually abandoned. Attention is rightly focusing more on the autonomous role of the people and of the voting assemblies in Republican politics, yielding a less onesided picture of the Republican institutions. An unfortunate side-effect, however, is that the attention to amicitia and patronage itself has diminished. Many questions still remain unanswered. Patronage and amicitia were certainly not political party-like institutions and patronage could not control the elections, but are we really willing to believe that ‘connections’ were unimportant to a young politician’s career, that eloquence and money sufficed, that personal political alliances did not exist or were simply irrelevant, that political decision making was free from personal influences? I doubt many of us – or should I say any of us ? – would be willing to go so far. The valuable contributions of sociologists and anthropologist are still not sufficiently accounted for in our perception of ancient friendship and patronage. Conversely sociologists and anthropologists have a lot to gain from a better understanding of Roman patronage and friendship.(1) Comparative studies have rarely been attempted, although a quick glance at some work by historians of, for example, Early Modern Europe, reveals strikingly similar problems and solutions.(2) Although almost every study on patronage or amicitia mentions at least one or two ways in which friends, patrons and clients offered each other substantial economic advantages, the role of these phenomena in the organisation of the

(1) Roniger’s much cited contribution to Roman patronage is based too much on outdated views from the great classics on Roman patronage, Mommsen, Taylor, Gelzer and Badian (RONIGER (1983). See also EISENSTADT & RONIGER (1984), p. 52-64). (2) See. e.g. KETTERING (1986); KETTERING (1992). KOOIJMANS (1992).

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economy has as yet received hardly any systematic treatment. A lot of work, therefore, remains to be done. I hope this book will prove a contribution to a better understanding of the role of amicitia and patronage in the economy. A few limitations should be noted from the outset. My study focuses on the Late Republic. This choice is merely a practical one; the advent of the Emperors constituted a political rupture, not an economic one. As far as social and economic questions are concerned, the distinction between Republic and Early Empire is meaningless. Many of my arguments, therefore, will be as much to the point for the Early Empire as for the Late Republic and I draw shamelessly on evidence from other centuries to fill in the gaps in the Republican sources or to provide comparisons. However, the source material for the Late Republic is incomparably richer than that of later or earlier periods, mainly, of course, thanks to the works of Cicero. Since I wanted this study to be based on concrete case analyses while still surveying as many economic aspects of amicitia and patronage as possible, it was impossible for me to cover the entire period of more than 400 years (ca. 200 BCE – ca. 250 CE) that should, ideally, be studied. Even within this limitation, the whole subject of the economic potential of amicitia and patronage is too vast to be treated fully in one book and this study focuses on just two aspects of the economy, viz. the allocation and circulation of scarce resources, and the organisation of economic activities and strategies. The six chapters in parts II and III each deal with a particular theme pertaining to these aspects. Furthermore, I have chosen to take the perspective of the reciprocal obligations of Roman friendship (officia), instead of, for example, that of transactions. The main question throughout is: In what way could the obligations that were expected from friends, patrons and clients be economically useful? As always, to choose is to lose. My perspective neglects many other important questions. How did amicitia and patronage influence prices? How did they regulate the flow of information? How were networks of friends, patrons and clients formed and how did they function? How did amicitia influence the awarding of public contracts? And so forth. However, I believe that the first step toward answering these questions should be to assess how the complex of moral obligations expected from friends, patrons and clients determined or enabled activities either

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consciously or unconsciously directed towards economic goals. Accordingly, this is what I set out to do. Other scholars should at least benefit from the material presented here. Another regrettable limitation is of a totally different nature. This book is actually about a very small minority of the Roman population, which in the period in question consisted almost exclusively of Italians. This is a book about senators, knights, municipal nobles and rich would-be nobles – roughly 3-5% of the population (women and children included) – and their retainers (slaves, freedmen, clients and protégés) – perhaps another 10% of the population. However, although a precise estimate is impossible, this 10-15 % of the population undoubtedly controlled a disproportionately large part of the Italian economy, both in terms of capital and of income and so the impact of the behaviour of this minority on the economy was equally disproportionate. Nevertheless, readers should be warned that the behavioural patterns studied in this book are those of the political, social and economic elite and their entourage, which are not necessarily the same as those of the ‘common’ people. Some readers may be irritated because I consistently consider the patron-client bond as a form of amicitia. I have tried to explain why in the third chapter of the first part of this book. To sum it up: from the perspective of social exchange and norms I consider patronage as a variant of amicitia or instrumental friendship. Both concepts derive from sociology where they denote dyadic personal relations of some duration based on reciprocity, loyalty, trust and affection. When the relation is symmetrical we speak of (instrumental) friendship, when it is asymmetrical we call it patronage. Symmetry itself is determined by the access or lack of access each patrner has to basic resources exchanged between them, which in term determines the dependency of one partner on the other.(3) As such, patronage and (instrumental) friendship are subdivisions of a general class of social relations that may be found in any society under widely different names and appearences.

(3) The sociological literature on friendship and patronage is vast see e.g. BLOK (1969a); BLOK (1969b); BOISSEVAIN (1966); BOISSEVAIN (1969); CAMPBELL (1964); EISENSTADT & RONIGER (1980); EISENSTADT & RONIGER (1984); ELLEMERS (1969); FISCHER (1982); GALJART (1969); GELLNER & WATERBURY (1977); WERTHEIM ( 1969); WOLF (1966); MÉDARD (1976). For a selection of important contributions see SCHMIDT & GUASTI & LANDÉ & SCOTT (1977).

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Yet at the same time as a specific social relationship the ancient Roman patronus cliens bond was a cultural phenomenon sui generis. Although it falls under the sociological ‘heading’ of patronage, Roman patrocinium-clientela shows many features that cannot be explained or even described in the general terms offered by sociological literature on patronage. Therefore, although I will not be doing so in this book, I do believe that Roman patronage deserves to be studied as an historical phenomenon in itself. Another distinction which I will mostly ignore, is that between emotional and instrumental friendship. Roman amicitia was a complex phenomenon. Affectionate friendship had to be shown by acts of kindness that were materially benecial but kindled the emotional fire of friendship nevertheless. Conversely, utilitarian friendship was caught up in the same web of values as emotional friendship. Reputation sanctioned both acts of kindness and acts of calculation. In most cases, the fragmentary state of our sources means that it is virtually impossible for us to distinguish between true and feigned emotions. For my purposes, it seemed better, therefore, to treat Roman friendship as a single cultural phenomenon with a uniform social behavioural pattern that individuals could take up either out of calculation or out of affection or out of a mix of both. I acknowledge the imperfection of this approach, but the subject of this book is not friendship as such but how friendship served as an instrument for economic activity. From this perspective the distinction between true and feigned amicitia is of little relevance. I have translated all in-text citations myself (except when otherwise stated), firstly because I want this book to be as open to non-classicists as possible, secondly because every translation is inevitably also an interpretation. Many standard-edition translations were too vague to express my understanding of a particular text and occasionally my interpretation differed from that of previous editors and translators. Generally speaking most available standard translations were simply not ‘literal’ enough to convey what I believed to be important in a certain text and which was the reason for inserting the citation in the first place. Nevertheless, I fully confess that I shamelessly used Budé or Loeb translations as guidelines whenever I could (except for Cicero’s Letters to Atticus for which I used Shackleton Bailey’s translation). I have not systematically referred to these editions for fear of seeming to want to escape responsibility for possible errors in the translations, but the reader is

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hereby informed that each and every translation is indebted to at least one previous edition with translation. To conclude this preface, the final and most pleasant task still remains. This book has been long in the making. It started as a dissertation on amicitia and loans in Cicero’s letters for my master’s degree some twelve years ago(4), afterwards growing into my PhD dissertation, which was subsequently reworked to form (at last) this book. Many debts of gratia have been accrued in these years and it gives me great pleasure to thank all those who have helped me. First of all I would like to thank my promoter Prof. John Devreker and my colleagues Prof. Robert Duthoy and Prof. Dorothy Pikhaus for their continuing support and advice. I owe especially many thanks to Prof. Jean Andreau, who not only read several chapters of the manuscript, but whose friendship and advice have been (and still are) a great aid. Prof. Raymond Bogaert has been a source of inspiration since the very beginning of my work. I would also very much like to thank Prof. Henri Pleket for his advice and for agreeing to be commissioner and reader of my PhD dissertation. I’m very grateful also to Prof. Jacques Michel for accepting to read my PhD dissertation, to Prof. Richard Saller who read the whole manuscript of this book and to Prof. Dominic Rathbone who read several chapters of it. I would also like to thank Jim O’Driscoll for proofreading the manuscript and the editors of Latomus under the direction of Prof. Carl Deroux for generously allowing me the time I needed for the laborious work of translating and reworking the original PhD dissertation. Finally I want to thank my wife Kristien for standing by me all these years, enduring my all too frequent absences of mind and my flirting with long dead peregrines. Needless to say, all remaining errors are mine. This book is dedicated to the memory of my little boy, Marius. Ghent, Monday, 03 July 2000

(4) VERBOVEN (1990).

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INTRODUCTION.

Paul Veyne characterised the Hellenistic World as ‘une société d’amis et de citoyens, non de travailleurs qui salariés, entrepreneurs ou fonctionaires, sont soumis à une réglementation universaliste et à la loi de fer du marché des bien et du travail’.5 This assertion goes to the heart of the modernist-primitivist debate. Regardless of what the ancient economy was truly like it cannot be denied that Greeks and Romans did not perceive the forces of the market economy as the determining factor in their lives. Their ‘mental map’ of the world focused on family, friends and citizens, not on businessmen, firms, employees and markets. Although every researcher who ever worked on patronage or amicitia mentions at least some of the economic advantages these relations offered, little or no systematic research has been done on their overall economic importance. This is all the more remarkable when we read, for instance, in Saller’s conclusion to his Personal Patronage that ‘the evidence suggests that exchange between patrons and clients was of considerable importance in political, legal, social and economic affairs’.6 Paradoxically, although the economic obligations of amicitia and patronage are generally recognised, the obligations themselves and the overall economic relevance of these phenomena have received only an ad hoc attention. Most work done so far has focused on their political importance. Saller’s Personal Patronage has six pages on the economic benefits of patronage subdivided into loans and debts, gifts, legacies and property transactions.7 The Roman Empire by Garnsey and Saller adds that ‘the wealthiest Romans also used friends to look after their widely dispersed property.’8 Rouland’s Pouvoir politique et dépendance personnelle has

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VEYNE (1976), p. 18. SALLER (1982), p. 206. See also ibid. p. 126 and WALLACE-HADRILL (1989), p. 72-73: ‘the secret of the game (sc. of patronage) is the manipulation of scarce resources’. 7 SALLER (1982), p. 120-126. 8 GARNSEY & SALLER (1987), p. 155. See also SCULLARD (1951), p. 12-15 (p. 14: ‘economic factors ... a not unimportant, though unadvertised, role in the working of patronage ‘); cf. SHATZMAN (1975), p. 82. 6

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chapters entitled ‘aide économique’, but these are rarely longer than one paragraph and deal almost exclusively with the importance of sportulae in mass clientelae.9 Deniaux’s Clientèles et pouvoir à l’époque de Cicéron has a chapter on recommendations for businessmen, but she too is mainly interested in the political aspects of the phenomenon and has little to say about what use the commendationes had for the negotiatores.10 Broadly speaking, the potential of amicitia and patronage is recognisable in two important fields of economic life. On the one hand, amicitia and patronage provided an alternative mechanism for the allocation of scarce resources; on the other hand, they provided a more or less reliable framework for the organisation of economic activities. Important research has been done in both fields, but a comprehensive study is still lacking. The allocation of scarce resources. Recognition of the socio-economic importance of friendship and patronage is most clearly found in works on Greco-Roman social aid. The two ‘classical’ works on social security and poverty in the Ancient World, Hands’s Charities and Bolkestein’s Wohltätigkeit und Armenpflege, both consider amicitia / philia as one of the prime motives for social aid.11 They have been followed most recently by Prell in his Armut.12 Gallant has traded this limited socio-ethical approach for a sociological analysis of philia as a device to construe personal social security networks based on reciprocity and trust. His analysis shows the overall importance of personal reciprocity relations for the functioning of the Greek peasant economy while avoiding the pitfalls and commonplaces of the concept of the ‘embedded economy’.13

9 see especially ROULAND (1979), p. 274 where the author explicitly states that he intends to limit himself to ‘la forme la plus élémentaire d’assistence économique: la distribution de nourriture’, see also p. 519 where the officia testamentaria are dealt with in seven lines. ROULAND (1981) pays even less attention to the economic aspects (see e.g. p. 270: ‘Hormis quelques cadeaux, c’est surtout par l’octroi de la sportule que se manifeste l’assistance économique du patron.’, see also p. 143) 10 DENIAUX (1993a), p. 213-248; cf. also COTTON (1986), p. 444. 11 HANDS (1968), p. 26-48. See ibid. p. 35 for the overall economic importance of friendship: ‘"friends" supplied services analogous to those provided by bankers, lawyers, hotel owners, insurers and others today.’; BOLKESTEIN (1939), p. 162-163, 295-296. 12 PRELL (1997), p. 260-269. 13 GALLANT (1991), p. 143-169; compare now TANDY (1997) and SCHAPS, Review of Tandy, in: BMCR (1998) 11.1.

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Although it has repeatedly been confirmed that friends were expected to support each other financially, the importance of friendship and patronage to the financial system as a whole has received scant attention. Two recent works on the Athenian credit system have begun filling this gap. One is Millett’s Lending and borrowing in ancient Athens, which has a chapter on the importance of friends as a source of loans and sureties. The author, however, adheres to a strictly primitivist viewpoint, emphasising the fundamental incompatibility of the ‘moral economy’, to which loans between friends belonged, and the ‘capitalist economy’ of bankers and businessmen, which would have been only marginal to the Athenian society and economy. Consequently any financial support that friends could have supplied to businessmen or any manipulation by businessmen of the ethics of philia to achieve success in business is ignored.14 The other is Cohen’s Athenian economy, which has a very different approach of the problem. This work totally ignores ‘the moral economy’ emphasised by Millet and develops a strictly modernist view of the Athenian financial system, run by highly professional bankers and capitalists. In Cohen’s eyes, friends served as important business assets, on which businessmen relied for sureties, information and help.15 Paradoxically, therefore, although patronage and amicitia are recognised as providing economically important resources, their contribution to the economy as a whole is mostly ignored. Why is this? When we turn to sociology and anthropology we find a large number of books and articles on ‘economic anthropology’ and the ‘substantive economy’, emphasising the role of personal relations in economies. However, these generally deal with structurally undifferentiated ‘primitive’ economies or with peasant economies. In the wake of Mauss’s famous Essai sur le don and Malinowski’s Argonauts of the Western Pacific the potential of gift-exchange emerged in the minds of anthropologists as a full-fledged system for the satisfaction of human needs and wants. Polanyi construed a model in which market exchange and reciprocity were conceived as incompatible. Although he stressed that both economic systems coexisted in reality, they were thought of as belonging to different worlds.16 Macherel (to name just one example) claims that ‘les

14 MILLETT (1991), p. 127-159; contra see KONSTAN (1997), p. 82: ‘Friendship in the classical city was not embedded in relations of economic exchange … any more than it was entangled in political alliances.’ 15 COHEN (1992), p. 34, 65-66, 89. 16 MAUSS (1923-1924); MALINOWSKI (1922); POLANYI & ARENSBERG & PEARSON (1957), passim; Polanyi’s influence has been enormous. See SAHLINS (1972), p. 185-230 for a further refinement of the idea of a reciprocity based economy (cf. COOK (1974) for a critical review). On Polanyi and his influence on the study of ancient history see HUMPHREYS (1978). For the application of Polanyi’s ideas to the ancient world see CARNEY (1973), p. 59-66 and passim; FINLEY (1974); MILLETT (1991), passim.

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hommes ont inventé deux manières d’échanger, deux grands mécanismes régulateur de l’échange. Le don d’abord ... C’est le mécanisme le plus ancien ... L’autre mécanisme est le marché’.17 Sociological studies of patronage or friendship in modern (or modernising) societies rarely concern themselves with the role played by these relations in the economy, apart from noting that clients may support their patrons politically in the hope of receiving social and economic support. Most studies see patronage as a typically political phenomenon and hold that in societies where the allocation of resources is traditionally determined by patronage, economic modernisation towards a developed market economy frees clients from the authority of their patrons, causing the breakdown of the traditional patronal system. The development of a modern market economy is thus seen as opposed to traditional patronage based allocation systems. Gellner asserts that patronage is typical for political contexts because the benefits here are by nature vague, whereas economic benefits are much easier to isolate. Therefore: ‘politics are patronage prone whereas economics are such only when they are politicised.’ According to Eisenstadt and Roniger, although some patron-client relations are based on instrumental considerations of an economic nature, these are marginal exceptions to the rule that the reciprocal exchange within patron-client relations is normally determined by considerations of power, solidarity, personal trust and symbolic meaning 18 Patronage seems incompatible with the paradigm of the homo economicus allocating scarce resources in a perfectly rational way to achieve a maximum profit. According to Weber, this rationality is of a special kind. He differentiated between economically oriented behaviour, based on a substantive rationality, and economically rational behaviour based on formal rationality. ‘Substantive rationality’ in Weber’s view involves dealing with scarce resources on the basis of their subjective value in terms of different ultimate ends (political, ethical, hedonistic…). ‘Formal rationality’ involves dealing with scarce resources based on their formal value in numerical terms. Formal rationality requires that scarce resources can be quantified and lies at the heart of monetary accounting,

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MACHEREL (1983), p. 151. Compare HERMAN (1987), p. 80. GELLNER (1977), p. 6. EISENSTADT & RONIGER (1984), p. 256.

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without which (according to Weber) any rational economic management is impossible. The object of formal economic action is to realise a profit, expressed in numerical monetary terms. According to Weber monetary accounting can only be fully reliable in a market economy where the formal value ascribed to goods and services derives not from any subjective appreciation but from the iron law of supply and demand. Accordingly, the models and explanations of classical economic theory could only be applied to market economies dominated by economic actors complying with the ideal type of homo economicus.19 Of course, Weber’s theories have been much criticised. Neo-classical economists insist that it is enough for the economic subject to be consciously aware of the scarcity of the goods and services he is dealing with to make classical economic analysis valid.20 This is not the place to go any deeper into the problem. We see in fact that modern economic methodology mostly complies with Weber’s ideal type and is concerned almost exclusively with what Polanyi called the ‘formal economy’, where economic action is oriented by the price set on goods and services by an impersonal market.21 The premise has major consequences for the study of the economic effects of patronage and instrumental friendship relations. The value placed on these relations is eminently immaterial: security, reputation, credibility, influence... The reciprocal exchange that these relations are based on in no way resembles the exchange relationships of the impersonal market. Whereas the latter are of the simple and immediate this-for-that kind, personal reciprocity relations involve a ‘package deal exchange’ over an extended period of time, including both material and immaterial benefits. Pledges of loyalty, solidarity and sympathy concur with and are ‘exchanged for’ substantial economic and political resources.22

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WEBER (1922), p. 145-189. See also WEBER (1921); WEBER (1920). Polanyi takes over much of Weber’s terminology and distinguishes ‘formal economies’ from ‘substantive economies’ (cf. POLANYI (1957b)). This takes us back to the modernist-primitivist debate (see ANDREAU (1977); ANDREAU & ETIENNE (1984); HARRIS (1993)). Note that Weber’s and Polanyi’s dichotomy is fully in line with what Aristotle has to say about and . For Aristotle’s view on the economy see POLANYI (1957a); FINLEY (1974); BODEÜS (1991); MEIKLE (1991). For Aristotle’s influence on economic theory, see WAGNER (1969), p. 10-13, 49-50, 63-64, 74-75. 20 see JONGMAN (1988), p. 47. 21 cf. e.g. PAENSON (1963), p. 35: Economy is ‘the study of activities having an economic character, i.e. utilising scarce resources for the satisfaction of human wants, which are measurable in terms of monetary value.’ 22 see EISENSTADT & RONIGER (1984), p. 48; EISENSTADT & RONIGER (1980), p. 49-50, 214-215, 250; cf. also MAUSS (1923-1924), p. 37 ‘un système de prestations total’; WOLF (1966), p. 13: ‘The relation aims at a large and unspecified series of performances’; MÉDARD (1976), p. 117.

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Although this global exchange is highly instrumental towards achieving personal goals, the rationality of the exchange is not based on the individual formal value of the exchanged goods and services but rather on the total subjective value of the ‘package deal’. In a sense, reciprocity relations can be conceived as a form of capital into which one has to invest to reap (uncertain) benefits.23 The problem is, however, that neither the investment nor the total profit can be calculated in monetary terms because they consist of an inseparable variety of goods and services, to many of which (as, for example, promises of solidarity and loyalty) a clear monetary value cannot possibly be ascribed. Therefore, although reciprocity relations may generate substantial benefits and although both partners in the relationship may anticipate these benefits and want to continue the relationship because of the anticipated benefits, the relations themselves cannot be expressed in monetary terms. In Weber’s view of capitalism the prime mover of economic action is the maximisation of profit in monetary terms, whereas in a system based on reciprocity relations the prime mover is the desire to create and maintain diffuse advantage relationships. The organisation of economic activities. The potential of ‘friendship’ and patronage to organise and manage economic activities has received considerable attention from specialists of Roman law. Watson favoured the long established idea that procuratio originated from the custom of leaving one’s property behind in the custody of a friend and stressed the important role friends played as mandatarii and procuratores in Cicero’s day.24 Michel’s Gratuité en droit romain propounded the thesis that amicitia as an instrumental relationship based on reciprocity (gratia) and loyalty (fides) lay at the origin of the important gratuitous contracts in Roman law (such as mandatum, mutuum, commodatum, depositum). Gradually the originally unenforceable officia mutua characteristic of Roman friendship received legal recognition and became enforceable. According to Michel, this was the

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cf. e.g. BOISSEVAIN (1969), p. 383. WATSON (1961), p. 20-21; WATSON (1965), p. 193-194; cf. infra.

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beginning of a long evolution whereby amicitia was gradually replaced by formal contracts inheriting some of the characteristics of the old amicitia arrangements, such as the formal requirement that the services offered had to be free.25 Kirschenbaum’s Sons, freedmen and slaves devotes a chapter to non-potestas relationships and agency? examining the economic usefulness of amici as agents. The author makes a clear distinction between formal contractual relationships on the one hand and amicitia on the other: ‘these were relations that never reached the inside of a courtroom. Their entire tone precludes contract and suit action and liability.’26 As does Michel, Kirschenbaum believes that ‘as the classical period of Roman law progressed … friendship as a source of non-contractual agency in business gradually became more limited’.27 The scenario recalls the earlier mentioned distinction between the ‘moral economy’ and the ‘capitalist economy’. Bürge argues that the apparent deficiencies in the Roman contractual systems in fact reflect a reality in which personal ‘Treu- und Nahverhältnisse’, including instrumental friendship and dependency relations, were the actual bonds that bound economic actors together.28 However, except for Bürge, legal historians have mostly focused on how amicitia explained certain curiosities of the Roman law of obligations (for example the gratuitous nature of some contracts). The implications for the economy at large remain largely unexplored. The importance or use of amicitia and patronage as means to organise economic activities and achieve economic goals is related to the problems of scale in the Roman economy. Even today, the vast majority of economic activities are organised in small enterprises run by individuals alone or with their families. Approximately 70 percent of all enterprises in the U.S. in 1986 consisted of sole proprietorships.29 Independent plumbers, shopkeepers, bartenders, carpenters and so forth, rarely face major organisational difficulties, but the size of their enterprises is inevitably limited. When we consider larger enterprises the difficulties of organisation and management become more complex.

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MICHEL (1962) passim; for the evolution towards formal contracts see p. 552-553. KIRSCHENBAUM (1987), p.194-195. 26 KIRSCHENBAUM (1987), p. 122-199; p. 17 for the citation. 27 KIRSCHENBAUM (1987), p. 194-195. 28 BÜRGE (1980). See also BÜRGE (1987). 29 BYRNS & STONE (1992), p. 469.

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Until recently, the study of the organisation and management of large enterprises has been based almost exclusively on corporate group models. The central concept in these models until the 1970s was the firm or ‘corporation’. A corporation can be great or small, bureaucratic or family based, hierarchically structured or based on equal partnership, but it always manifests itself as a corporate group formed with an exclusively economic purpose. From a sociological point of view, corporate groups may be found in any civilisation at any stage of its history. At least in theory, therefore, the existence of firms as specific types of economic enterprises may be as old as the market itself and from a conceptual angle the concept should not be discarded a priori. The actual existence or importance of firms is contingent upon historical conditions and does not depend on the stage of economic development reached by a given society. But the cornerstone of the ‘corporation’ model today is the legal concept of corporate capacity that establishes the corporation as a legal entity distinct from its owners. The legal concept of the ‘corporation’ as a private enterprise with limited liability dates from the Early Modern period and was intended to facilitate long distance maritime trade, the Elizabethan ‘East India Company’ (1600) being the first of its kind. Naturally, from such a viewpoint the lack of legal recognition of corporate enterprises in the Ancient World can only be conceived as a handicap to economic development. However, the relevance of the corporation model itself is questionable. Formally incorporated enterprises remained exceptional even in the Early Modern period. It was not until the nineteenth century that the law on incorporations was sufficiently liberalised for limited liability companies to become common. Thus, for example, the Napoleonic ‘Code Civil’ from 1804 did not yet recognise corporate capacity.30 But the firm as a formal corporate entity does not offer the sole possible solution to the problems of organisation of economic enterprises. In the past 20 years, organisation experts have begun to realise the importance of informal social and personal networks linking individuals and organisations as alternatives and complements to hierarchically structured corporate enterprises.31

30 For a short survey see Business organisation in Encyclopaedia Brittanica XV (1974), p. 368-369. See also FÖLDI (1996), p. 1-2; LHUILLIER (1993). 31 Cf. JOHANNISON (1994). WASSENBERG (1980); DE WILDE (1980), p. 17-194; QUINN (1994), p. 280-281. A comparable tendency is found in political sciences where attention has shifted from parties and factions to ‘dyadic politics’ (LANDE (1977b)).

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Networks differ considerably from familiar corporate organisations. There is no clearly defined common purpose and membership criteria are vague or wholly absent. A network does not exist in any formal sense as a separate unit. It manifests itself as an informal configuration of contacts that can be used to achieve particular goals. There is no common authority and its ‘members’ are formally independent. Each member has his own agenda for the realisation of which he is dependent on his contacts with other members. Of course, this formal independence can obscure a hidden factual dependency of one or more members vis-à-vis another partner – as, for example, in the case of supply companies or in cases where one partner controls resources that are vital to other members in the network. Economic networks are places of co-operation and conflict; strong ‘partners’ develop offensive strategies to control their weaker ‘friends’ who in turn develop defensive strategies to protect their independence. Few will dispute that the vast majority of production and distribution units in the ancient economy were small family-run enterprises. The question remains, however, whether and how economic activities could be organised beyond this basic level, what the size and overall importance was of such enterprises and how they were organised. Finley held that ‘Households’ were the only significant production and distribution units throughout antiquity. The finality of the ‘House’ and its internal organisation were profoundly non-economic. Slave labour provided the only answer to the problems of scale in the ancient economy, but even slaves usually operated from within the household organisation. ‘Firms’ in the modern sense of the word as organisations with a strictly economic purpose – insofar as they existed – remained of marginal importance.32 Finley’s assertion is extreme. The existence of small to medium sized enterprises run by slaves under the supervision of their master or supervisor (often a slave himself) is well attested. The Pompeian wall paintings give us a clear idea of the division of labour in fullonicae. The monument of the baker Eurysaces shows how work in large bakeries (the remains of which can still be seen in Ostia or Pompeii) was organised. These were ‘corporate’ enterprises by all criteria except their legal status. They were

32 FINLEY (1973), p. 17-21; CARNEY (1973), p. 33-34. For a general theory of the ‘domestic mode of production’ see SAHLINS (1972), p. 41-148.

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well-organised enterprises with clear ‘membership’-criteria set up and organised for a specific economic purpose.33 Nevertheless, the scale on which these businesses operated was rarely very extensive. They seldom employed more than a dozen or so workers. To what extent could these basic units be integrated into a larger structure? A wealthy negotiator , for example, could certainly own many ships and shops, but this does not imply that the exploitation of these was co-ordinated from above and that the operation of each fitted into a single commercial strategy. Just as a wealthy landowner could choose to lease out his estates to large numbers of peasants instead of exploiting it himself, a negotiator could invest in several ships, while leaving their exploitation to others. Of course, entrepreneurs could form partnerships, but this does not in itself imply that their respective enterprises merged into one large centrally led company. The existence of centrally led supra-organisations has been much debated over the past 15 years. Until the 1970s research in this field focused on partnerships (societates) and representation by (salaried) freedmen procuratores and mandatarii. Both formulae were considered highly inefficient because on the one hand, corporate personality was virtually never granted to private societates (the major tax farming companies being the exception to the rule), and on the other hand, Roman law never recognised the principle of direct agency through free men. This conclusion was both explained by the general underdevelopment of the ancient economy and used to explain this underdevelopment.34 Since the 1980s, however, attention has shifted to the role of potestas relations in the construction and operation of larger enterprises. Research has focused on the socalled actiones adiecticiae qualitatis, which regulated the liability of the father or master (pater dominusue) towards third parties who had contracted with his sons or slaves. The works of di Porto, Aubert and Kirschenbaum have considerably enlarged and deepened our understanding of the role played by slaves (and to a lesser degree by sons in potestate) in the organisation of economic activities.35

33

On the Pompeian fulleries see ETIENNE (1977). On Eurysaces’s monument (CIL VI, 1958) see ROSTOVTZEF (1957), p. 32. 34 see. e.g. BRUNT (1988a), p. 170; ROSTOVTZEFF (1957), p. 170-171; HOPKINS (1978), p. 53; for a survey see PORTO (1984), p. 7-12. 35 PORTO (1984); AUBERT (1993); AUBERT (1994); KIRSCHENBAUM (1987). See also SERRAO (1989b); PETRUCCI (1991); FÖLDI (1996).

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There were four types of actiones adiecticiae qualitatis: the actio quod iussu, the actio institoria and exercitoria, the actio tributoria and the Actio de peculio et de in rem uerso. Which actio was available depended on whether the slave or son had been given a specific commission (iussum), whether he acted on the basis of a general commission (as an institor or magister nauis), whether the pater dominusue was aware of the actions of his dependants (actio tributoria), or whether he had been totally unaware of them (actio de peculio). Only in the cases of the actiones quod iussu and institoria / exercitoria was the pater dominusue held liable in solidum.36 Together the actiones adiecticiae qualitatis provided a comprehensive framework within which the liability of the pater dominusue was determined. When a slave or son in potestate operated according to the will (uoluntas) of his master or father – expressed in a public appointement (praepositio) – the actio institoria / exercitoria was available that made the master or father liable in solidum. When the master or father was unaware (insciens) of his son’s or slave’s business activities the actio de peculio et de in rem uerso was available that made the master or father liable only for the value of the peculium and the profit derived from it, while the claims of the master or father against his slave or son in potestate were satisfied before those of the other creditors. If, however, the

36 For a survey see BUCKLAND (1908), p. 166-238. For a thorough analysis see AUBERT (1994), p. 40-100; KIRSCHENBAUM (1987), p. 31-121; PORTO (1984), p. 31-56; FÖLDI (1996). By the second century CE the regime of the actio institoria / exercitoria was extended to situations where the institor / magister nauis was an extraneus, either a free person or a seruus alienus. Kirschenbaum dates the innovation to the Late Republic, Di Porto, however, does not believe this development to be any earlier than the second century. The consequences of this innovation should not be overestimated. Actiones adiecticiae qualitatis regulated only the liability of the pater dominusue towards outsiders and not vice versa. Originally, liability of the contracting party towards the pater dominusue was automatically ensured, since slaves and sons in potestate could not acquire for themselves. In the case of an institor / magister nauis extraneus, however, the pater dominusue acquired no claims in his own name. The extraneus (or his master) had to hand over the benefits a posteriori (and could be forced to do so by the actio mandati or locati conducti), but the pater dominusue could not sue defrauding third parties in his own name. Of course, this could be remedied by means of a stipulatio forcing the institor / magister nauis to allow his principal (or any person designated by the principal) to act as cognitor. In short, the innovation did not create the possibility of direct agency by extranei. It is hard to see how such a scheme could have appealed much to the principal who thereby acquired the disadvantages of the actio institoria / exercitoria without availing himself of direct agents. Most likely, the innovation was meant for cases where a master manumitted his dependent agent. See KIRSCHENBAUM (1987), p. 142-143; PORTO (1984), p. 37-42; AUBERT (1994), p. 91-95.

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master or father was consciously aware of his slave’s or son’s business activities (scientia) and allowed him to conduct his business as he pleased (patientia), the actio tributoria was available. This actio was very similar to the actio de peculio et de in rem uerso, but the father or master lost the right to satisfy his own claims before the other creditors and was thus treated as any ordinary external creditor. When a slave or son in potestate acted on the order of his master or father, the actio quod iussu was available that made the master or father liable in solidum regardless of the arrangement under which his slave or son in potestate otherwise operated.37 This basic structure could be extended horizontally by common slaves (serui communes) and vertically by underslaves (serui uicarii). Serui communes allowed several masters – linked to each other by societas – to participate in one or more enterprises (negotiatio(nes)) conducted by their common slave(s). Serui uicarii considerably increased the flexibility with which business activities could be organised, integrating different levels of liability in one organisation and creating a ‘struttura a due piani’ (or even more ‘piani’).38 Flexibility was further increased by the fact that peculia could also be subdivided into different merces, which insured that an actio brought against one enterprise defined as a separate merx peculiaris did not damage another enterprise defined as a different merx.39 According to di Porto the actiones adiecticiae qualitatis provided the necessary legal platform for the organisation of highly sophisticated modern type ‘enterprises’40. In his view, there was no need for impersonal ‘incorporated’ organisations. The physical presence of the slave guaranteed the unity of the enterprise and through uicarii a large hierarchically structured enterprise could be set up, within which the most diverse economic activities could be organised without the master ever becoming liable in solidum. The pater dominusue is thus conceived as ‘entrepreneur’, the slaves or sons as ‘managers’. Di Porto’s thesis has received support mainly from specialists of Roman law,41 but it has been sharply criticised by economic historians.

37

For a detailed outline see FÖLDI (1996), p. 183-184. See PORTO (1984), p. 273-275. 39 Of course when one merx peculiaris was insufficient, the rest of the peculium did become liable. See AUBERT (1994), p. 69. 40 PORTO (1984), passim. cf. also FÖLDI (1996), p. 189: ‘The quantitative level of abstraction could hardly be increased’. 41 Cf. i.a. SERRAO (1989b); PETRUCCI (1991); CHIUSI (1993); FÖLDI (1996). 38

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Andreau objected that  contrary to what is often claimed  juridical arrangements do not necessarily reflect reality.42 Complex hierarchical enterprises of the type di Porto describes are virtually unattested outside legal texts. They feature in the writings of the Roman jurists because it was their job to explain the consequences of the existing arrangements in complex situations, not because they occurred frequently in reality. The application of the concept of limited liability to the actio de peculio et de in rem uerso is misleading. Undoubtedly the masters of a slave operating independently with his peculium were liable only to the extent of the peculium and the profits they derived thereof, but contrary to the situation in modern corporations these masters were not active as entrepreneurs. Földi rightly rejects di Porto’s terminology in this case and identifies the slave as the true entrepreneur de facto.43 This explains why the master had the right to satisfy his own claims before those of external creditors, viz. because he could not be held responsible for the actions of his slave. While de iure the master was only liable to the extent of the peculium, de facto the slave entrepreneur was liable in solidum with his peculium. When the master did intervene, he became liable in solidum by the actio quod iussu. Not all scholars agree to regard the actio tributoria as an actio adiecticiae qualitatis. It is mostly held that it was available only after the actio de peculio et de in rem uerso had proved insufficient and could, therefore, better be explained as a specific bankruptcy procedure.44 Nevertheless, even if we do accept the actio tributoria as a true actio adiecticiae qualitatis, the problem remains the same. Although the master knows what business his slave is transacting, he is not involved in the actual management of the enterprise. Therefore, he is not held fully responsible for the actions of his slave and is consequently not liable in solidum, whereas the

42 ANDREAU (1996), p. 271-272. See also D’ARMS (1981), p. 165: ‘references to institores are mostly confined to legal texts’. Contra see e.g. FÖLDI (1996), p. 180: ‘the actiones adiecticiae qualitatis can ... be regarded as legal reflections of various types of ancient Roman enterprises’. See AUBERT (1993) and AUBERT (1984), p. 117-321, 444-467 for an attempt to assess the actual importance of the actiones adiecticiae qualitatis. 43 FÖLDI (1996), p. 181. Contra SERRAO (1989b), p. the dominus is the ‘imprenditore reale’, the slave the ‘imprenditore nominale’. On peculium as implying a slave’s independence of action see also GARNSEY (1981), p. 363-364; HOPKINS (1978), p. 126; FINLEY (1973), p. 64. Note that the lex Cincia explicitly authorised gifts from a slave to his master, an absurdity were it not that the peculium was strictly separated from the master’s patrimony, see DUMONT (1987), p. 115. 44 KASER (1955) I, p. 609; PORTO (1984), p. 54; contra see FÖLDI (1996), p. 188; CHIUSI (1993), p. 374.

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slave as actual entrepreneur is de facto (although not de iure) liable in solidum with his peculium. Both the actio de peculio et de in rem uerso and the actio tributoria, therefore, limit the liability of the pater dominusue only because and insofar as the master or father was not involved in the management of the enterprise. The arrangement of the actio tributoria resembles what has been known since the sixteenth century as ‘limited partnerships’ (‘société en commandite’). These are partnerships between active partners who are in charge of the operations involved and idle partners who provide the necessary capital without interfering in the actual management of the enterprise. The active partners (in this case the slaves) are liable in solidum, whereas the idle partners are liable only for their part of the capital. Whenever any of the idle partners intervenes in the management of the enterprise, he becomes liable in solidum. Although limited partnerships provide a rudimentary form of limited liability, they are a long way from actual incorporated enterprises, in which the actual entrepreneur enjoys limited liability.45 Seen from another perspective, the system of the actio tributoria was in fact even more rudimentary than that of limited partnerships. Although the masters of a seruus communis were each only liable to a limited extent, this limit was not determined by their investment in the enterprise run by the seruus communis, but by the total value of the peculium. It was only post factum that one master could reclaim his expenses from his socii. Towards third parties each of the socii was fully liable to the value of the peculium.46

45

cf. Business organisation in Encyclopaedia Brittanica XV (1974), p. 366-367. For the history of limited partnership see BRAUDEL (1988-1990) II, p. 412-413. See also SERRAO (1989a), p. 9: ‘quasi a metà strada fra la “società civile” ... e le società commerciale’. 46 Di Porto argues that Roman jurists found a solution by allowing the socius who was found liable to sue his partners before complying with the judgement (antequam praestet) (PORTO (1984), p. 127130; Dig. X, 3, 15). Nothing indicates, however, that the interval within which the socius who was found liable had to comply with the judgement was suspended in the meantime. A direct condemnatio pro parte was only possible when both the actio pro socio and the actio communi diuidundo were no longer possible, e.g. in the case of a seruus communis who had been manumitted and of whom one former owner had died (see also KIRSCHENBAUM (1987), p. 114-115). SERRAO (1989b), p. 32 points to the possibility of a slave working with several peculia separata belonging to different socii, in which case each socius was liable only to the extent of his ‘investment’. But Dig. XV, 1, 15 (the only passage informing us of this possibility) indicates that this situation was exceptional and probably occurred only with clearly separable production assets, not with a mere capital investment.

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Notwithstanding these critical remarks, di Porto’s work is undeniably a major step forward in our understanding of how the Roman economy worked. It has highlighted the entrepreneurial possibilities offered by the actiones adiecticiae qualitatis. The tablets belonging to the Puteolean archive of the Sulpicii offer several examples of slaves operating as managers and agents for their masters.47 Aubert’s study of the instrumentum domesticum has shown that organisations run by institores or serui peculiarii were quite common.48 However, there is nothing to indicate that the scale of these organisations was normally very large. The main problem with the proposed management model is that it is framed exclusively withing the modern concept of the corporate enterprise. Regardless of the existence of (proto)corporate enterprises, we encounter numerous forms of cooperation that don’t fit the corporate management model, but that seem to have been quite common in the organisation of supra-local economic activities. Jean Andreau has long asserted that banks in the Roman world operated only on at a municipal level while financial organisation on a higher level was in the hands of ‘affairistes’ tied to each other and to the aristocracy by ‘multiples liens de parenté, d’amitié, ou même d’affaires’.49 Kirschenbaum emphasised the role played by amici and propinqui as economic agents.50 Bürge considered ‘Nah- und Treuverhältnisse’ as the only feasible solution to the problems involved in the organisation of economic activities beyond the household unit in the Roman financial world. According to him, Roman business was as much determined by Gelzer’s ‘Nah- und Treuverhältnisse’ as Roman politics were.51 Cohen asserted for fourth century Athens that ‘the banker’s personal network of friends and his prestige as a professional were as significant as even the possession of vast monetary resources.’52 John D’Arms emphasised the

47

Cf. SERRAO (1989b), p. 33-35; SERRAO (1989c). For the tablets see now CAMODECA (1999). AUBERT (1993); AUBERT (1994), p. 210-321 49 ANDREAU (1982), p. 99. See also ANDREAU (1995a); ANDREAU (1985); ANDREAU (1978). 50 KIRSCHENBAUM (1987), p. 160-199. 51 BÜRGE (1980) (see esp. p. 137, 151); BÜRGE (1987), p. 500-509. 52 COHEN (1992), p. 34, 65-66, 89 (p. 65 for the quotation). For a critical review see BOGAERT (1995), who nevertheless appreciates the chapter on the importance of the banker’s relations as ‘la partie la plus originale et la plus convaincante du livre’ (p. 605). 48

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importance of amicitia and clientela in the organisation of commercial activities, allowing senators to engage in business without incurring a bad reputation and without breaking the lex Claudia that forbade senators to own trading vessels. ‘The Romans flexibly adjusted and extended the boundaries of traditional relationships  those of the familia, of clientela, of amicitia  in ways which gave these terms new meaning, and gave commercial organisation new dimensions.’53 Of course, it would be wrong to claim that ‘(proto-)corporate’ enterprises54 did not exist in the Ancient World., for example, the slave-familia of a farm clearly formed a corporate group, acting ‘as a body’ to realise a maximum profit for their master who had bought or bred and organised them for this purpose.55 However, everything indicates that such ‘would-be corporate’56 enterprises operated on a local level only. In fact, the particular circumstances of the ancient economy made this almost inevitable. Any organisation operating on a supra-regional scale (as, for example, the societates publicanorum) faced huge problems of communication and control. Important decisions necessarily had to be taken locally and liability also needed to be local in order to inspire sufficient confidence in trading partners and clients. Since slaves had no legal capacities, this was impossible without the help of free procuratores. This is where social networks of amici and clientes came in. They could be relied upon as independent agents who were personally liable for the actions they undertook on behalf of their principal, but who were entitled to claim compensation from their principal by the actio mandati, negotiorum gestorum or societatis. These independent agents were tied to their principal by fides  trust and loyalty  but they were motivated by the expectation of gain from the counterfavours bestowed on them by the principal. Interestingly, a comparable tendency to find alternatives to the classical paradigm of the corporate enterprise can be found in the study of other periods in history. Hoffman, Postel-Vinay and Rosenthal showed how the French eighteenth century financial system rested on networks of

53

D’ARMS (1981), p. 169 see also p. 42-44, 154, 165. See also FREDERIKSEN (1975), p. 166-167 for the same idea. 54 Proto-corporate because not endowed with formal corporate capacity. 55 See also the small and medium sized workshops of e.g. Pompeii and Corinth; ETIENNE (1977), p. 147-190; JONGMAN (1988), p. 155-186; ENGELS (1990), p. 33-39 and cf. PLEKET (1990), p. 123. 56 ‘would-be’ because not endowed with juridical personality.

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financiers. Important loans were not offered by banks – who played hardly any significant role as creditors before Napoleon’s reign – but by private individuals. An organisationally crucial role was played by notaries, who acted as intermediaries between creditors and debtors. The notaries were not formally involved in the loan, but made up the accompanying contracts and held these as evidence in their archives.57 The situation in the countryside in seventeenth century England resembled that in France. Most transactions took place between persons who were either related or knew each other well while brokers (often attorneys) were active arranging loans between strangers.58 Both notaries and brokers were absent in the Early Modern Swiss countryside. Here lenders and debtors had to be personally acquainted.59 Braudel describes how traders in the late sixteenth century found a valid alternative to partnerships in mutual services.60 Motoukias analysed personal networks of businessmen in eighteenth century Buenos Aires and found that ‘les réseaux de liens primaires forment l’organisation même de leurs entreprises’.61 Avner Greif analysed the Jewish trader community in eleventh century Cairo from the viewpoint of personal networks and found that traders did not build up extended family enterprises but formed coalitions of mutual interest with non-relatives who were then used as overseas agents. Crucial to the working of the system was ‘reputation’. A person who acquired a reputation for being undependable or untrustworthy was excluded and could no longer conduct his business.62 There is clearly a general tendency in recent historical research to focus more on the economic potential of informal contacts and networks based on instrumental friendship and it is to this tendency that I hope this book will prove a contribution. It is imperative in my view that the economic potential of amicitia be made clear. I will focus here, therefore, on the use of amicitia in both the fields of acquiring resources by means of gifts, loans and legacies and of managing resources by means of agents

57

HOFFMAN & POSTEL-VINAY & ROSENTHAL (1992); HOFFMAN & POSTEL-VINAY & ROSENTHAL (1994). Note the resemblance with the ancient faeneratores ANDREAU (1985); ANDREAU (1978); ANDREAU (1983); VERBOVEN (1993a). 58 SPUFFORD (1994); ANDERSON (1972). 59 PFISTER (1994). 60 BRAUDEL (1988-1990) II, p. 137-139. 61 MOUTOUKIAS (1992), p. 889. 62 GREIF (1989b); GREIF (1991).

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(mandatarii and procuratores), partners (socii) and influential ‘contacts’ (commendationes). In the end I hope to show that the Roman elites, both imperial and municipal, organised their patrimonies not by making use of formal organisations, such as banks or investment companies, but by means of their extensive personal networks and their ‘friendships’ with important negotiatores and faeneratores. These in their turn relied on their networks extending throughout the Mediterranean to manage their manifold interests and those of their amici maiores. The social networks of aristocrats and businessmen thus served as a superstructure into which the innumerable small family or slave based enterprises were integrated.

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Part I the nature of amicitia

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[leeg blad]

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THE MORAL MATRIX OF FRIENDSHIP.

Amicitia was an ambivalent relationship. On the one hand, it assumed sincere mutual affection and altruism, on the other hand, it involved the exchange of substantial mutual services. Although these services were offered as favours with no strings attached, they were often the actual ‘raison d'être’ of the relationship. The tension between altruism and advantage was controlled by a behavioural code. Friendship was ideologically construed around a set of ethical norms. This moral ‘matrix’ of friendship centred around four prime values: liberalitas or benignitas, gratia, fides and beneuolentia or amor. The matrix was upheld by a fifth basic value, viz. honour or reputation (existimatio, dignitas). 1.1 Liberalitas / benignitas & beneficia / officia. According to Cicero  following Panaetius  liberalitas / benignitas came next to iustitia in the scale of virtues that held society together. Whereas iustitia was a passive virtue making a person abstain from evil, liberalitas / benignitas was an active virtue that incited a person to do good.63 Liberalitas was the virtue ‘par excellence’ of a Roman aristocrat.64 Although the term gradually acquired the specific meaning of ‘generosity’, it had originally a much wider application. Cicero advised that liberalitas be shown by efforts (opera) rather than by gifts of money.65 The word itself was taken over from the Greek eleutheriotès early in the second

63

CICERO, Off. I, 20; iustitia and liberalitas are considered as fontes officii next to cognitio, magnitudo animi and decorum; cf. DYCK (1996), p. 106. 64 Cicero and Sallust considered liberalitas as part of the mos maiorum. This doesn’t necessarily mean that it was an archaic value (cf. infra), but it does imply that it was an important part of the education of a young aristocrat in the Late Republic. SALLUST, Cat. 7, 6; CICERO, Clu. 196; Mur. 77; for liberalitas in general see KLOFT (1970), p. 5-72; HELLEGOUARC’H (1963), p. 215-221; VEYNE (1976), p. 15-20, 31-35 (but see SALLER (1991) and TARTARIN (1980)); MICHEL (1962), p. 480529; BERVE (1926); HANDS (1968), p. 44-45. 65 CICERO, Off. II, 52-53; on Cicero’s conception of liberalitas see DYCK (1996), p. 155-156.

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century BCE and soon became a virtual synonym of the much older benignitas.66 Cicero coined a third synonym: beneficentia.67 All three denoted ‘the disposition from which the act of conferring a beneficium (was) derived’,68 signifying the voluntariness and sincerity of the benefactor. The concept of liberalitas / benignitas thus expressed a fundamental altruism.69 Beneficia were conceived as acts of kindness with no strings attached. ‘Whoever gives beneficia imitates the gods, whoever asks for a return (imitates) usurers.’70 The principle implied that a return gift was, in its own right, considered as a beneficium derived from a pure and sincere benignitas.71 However, this was ideology. In reality liberalitas / benignitas and gratia were as two sides of a coin. A favour both expressed liberalitas and called for gratia. Favours and gifts inevitably gratified those who received them., obliging them to reciprocate or to prove ungrateful. It was an old complaint, found already in Plautus, that beneficia were given only to those who could reciprocate.72 In order for the mechanism to work it was imperative that beneficia were given to the right persons who would show the proper gratia. Cicero

66

There is much disagreement about whether liberalitas was an archaic Roman value. KLOFT (1970), p. 35-37, 44-46 shows that the term was borrowed from the Hellenistic kingdoms, but this need not mean (as Kloft believes) that the concept as such was unknown. The term benignitas is much older and is clearly used by Plautus in its ‘Ciceronian’ sense of ‘a disposition generating beneficia’. That the concept was in conflict with the supposedly original Roman value of parsimonia – as argued by Kloft loc. cit. – is only correct insofar as gifts of money are concerned. Note that parsimonia occurs only 5 times in Plautus (one of which as euphemism for auaritia), whereas benignitas occurs 12 times. 67 CICERO, Off. I, 20: beneficentia quam eandem uel benignitatem uel liberalitatem appellari licet. The word didn’t become very popular until the Christian era, see HELLEGOUARC’H (1963), p. 215222. 68 MANNING (1985), p. 73; for the similar meaning of see BOLKESTEIN (1939), p. 143. 69 cf. ANNAS (1977) for the norm of altruism in ; compare LANDÉ (1977a), p. xiv; CAMPBELL (1964), p. 253. 70 SENECA, Ben. III, 15, 4: Qui dat beneficia deos imitatur, qui repetit, faeneratores. See also SENECA, Ben. I, 2, 3; 6, 1; CICERO, Am. 31: Neque enim beneficium faeneramur, sed natura propensi ad liberalitatem sumus; cf. MICHEL (1962), p. 526-527; HANDS (1968), p. 44-45; compare MACHEREL (1983), p. 152. 71 cf. CICERO, Off. I, 48. 72 PLAUTUS, Men. 571-579; cf. DAMON (1997), p. 63-65. See also ARISTOTLE, Eth. Nic. VIII, 13, 8 (1162b34); CICERO, Off. II, 69: sed quis est tandem, qui inopis et optimi uiri causae anteponat in opera danda gratiam fortunati et potentis?; cf. DYCK (1996), p. 456-457. For the role of beneficia in amicitia in Plautus see now RACCANELLI (1998), p. 19-40, 189-197.

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quotes Ennius saying: ‘Good deeds badly placed, methinks are bad deeds’.73 True beneficence, according to Cicero, rested on a ‘choice of worthiness’ (dilectus dignitatis) in which both the character of the receiver (mores) and also his disposition towards, relationship with and past services shown to the giver would be considered.74 Conversely, those who were worthy had a moral right to receive beneficia. This implied that most beneficia were at the same time officia and that liberalitas / benignitas towards friends, relatives, dependants and benefactors was a duty. Accordingly, we see that the terms beneficia and officia were largely interchangeable.75 1.2 Gratia. The counterpart of benignitas / liberalitas was gratia. Whereas benignitas / liberalitas was the disposition producing beneficia, gratia was the disposition ensuring a response to beneficia. The overall importance of reciprocity ethics in the Ancient World is long acknowledged and need not be argued any further here. Suffice to say that reciprocity was a central principle governing interpersonal relations in the Ancient World. The offer of a gift or a favour carried with it the imperative appeal for a counter-gift or -favour. Nearly 700 years before Cicero, Hesiod had emphasised the importance of reciprocating favours with counter-favours of at least equal importance. Cicero himself claimed that ‘no duty is more imperative than that of returning gratia … not to return is not allowed for

73

CICERO, Off. II, 62: Bene facta male locata mala facta arbitror. See also CICERO, Off. II, 63: Quod autem tributum est bono uiro et grato, in eo cum ex ipso fructus est, tum etiam ex ceteris; SENECA, Ben. I, 2, 1; PUBLILIUS SYRUS, Sent. B33 (ed. Meyer): beneficium dignis ubi des omnes obliges. 74 CICERO, Off. I, 45; cf. VALERIUS MAXIMUS IV, 8: liberalitas derives from two sources: uerum iudicium et honesta beneuolentia; cf. PRELL (1997), p. 266-269. 75 cf. SENECA, Ben. III, 18, 1: some distinguish between beneficia, officia, ministeria, refuted ibid. 3, 19-38; note that Cicero translates the Greek with the Latin officium, whereas Servius in his commentary on Vergil used to explain the Latin beneficium. See SALLER (1982), p. 15-21; on the degrees of obligation in liberalitas / benignitas see CICERO, Off. I, 50-58; II, 58; cf. DYCK (1996), p. 440; PLINY, Epist. IX, 30; cf. MICHEL (1962), p. 521.

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an honourable man (uir bonus).’76 Veyne aptly describes ‘le don’ in the Ancient World as a ‘bakchich élevé à la hauteur d’une institution.’77 The return of a favour did not end obligations existing between giver and receiver. On the one hand, the debt of gratia was not extinguished by a counter-favour. On the other hand, a counter-favour itself had to be reciprocated. A beneficium entailed a commitment on the part of the giver. It symbolised a personal relationship and, therefore, served as a pledge for future beneficia. The result – and often the object of this chain of mutual favours – was the establishment of a more or less lasting personal relationship. It was a typical feature of amicitia that friends continually owed each other return favours.78 Beneficia brought giver and receiver nearer to each other. They became bound by gratia or beneficiis deuincti.79 This idea of ‘binding’ friends by means of gratia shows how gratia was not so much considered as the objective act of returning favours, but as a general sense of gratefulness that would inevitably lead to a return favour.80 Philosophers often argued that amicitia rested on amor and not on gratia, but at times they echoed more vulgar opinions. Thus Seneca inadvertently speaks of the most sacred law of beneficia from which amicitia is derived. He warns his readers to be more careful about from whom they would accept beneficia than about from whom they would accept a loan.

76

CICERO, Off. I, 48: nullum ... officium referenda gratia magis necessarium est ... non reddere uiro bono non licet. HESIOD, Op. 349-350. See also ibid. 342-351, 364-367, 407-409; CICERO, Off. II, 15 Brut. 15; Att. XIII, 12, 3; for reciprocity as a pervasive aspect of ancient literature: see e.g. HOMER, Il. IV, 257-260; Od. I, 374-375; ARISTOTLE, Eth. Nic. V, 5, 1 (1132b21); 7 (1133a3-6); IX, 2, 3 (1164b31); SENECA, Ben. I, 4, 2; IV, 13, 3; 21, 1; 21, 5; VI, 14, 4; CATO, Agr. V, 2. 77 VEYNE (1976), p. 15. On reciprocity in the ancient world see e.g. BENVENISTE (1948-1949); BÖLKESTEIN (1939), p. 156; DIXON (1993); FINLEY (1977), p. 64-66, 120-123; FINLEY (1981); FINLEY (1974), p. 31; GALLANT (1991), p. 143-153; HERMAN (1987), p. 73-82 (and passim); LENDON (1997), p. 63-69; MICHEL (1962), p. 449-601; MILLETT (1991), p. 27-44 (and passim); MOUSSY (1966), p. 475-477; POLANYI (1957a), p. 79; SALLER (1982), p. 8-39, 143; TANDY (1997), p. 94-101.. 78 HANDS (1968), p. 26; MICHEL (1962), p. 449-468; GALLANT (1991), p. 144; cf. PLINY, Epist. III, 4, 6; cf. also 79 cf. e.g. CICERO, Fam. X, 8, 3; XI, 16, 2; XIII, 18, 2; 27, 2; 64, 2; Q. fr. II, 12 (14), 3; III, 1, 16: Att. XVI, 16b, 9; Cat. IV, 10, 2; Planc.73; 81; Off. II, 65; 69 (cf. DYCK (1996), p. 456-457; Phil. XIII, 4, 7-8; Clu. 190; SENECA, Dial.VII, 24, 2 (Vit. Beat.); cf. MOUSSY (1966), p. 359-360; COSTA (1911-1919) I,, p. 136-138. 80 cf. FOSTER (1977), p. 23: ‘A functional requirement of the system (sc. of dyadic contracts) is that an exactly even balance between partners never be struck. This would jeopardise the whole relationship, since if all credits and debits somehow could be balanced off at a point in time, the contract would cease to exist.’

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Once a loan was repaid the debt dissolved, but the debt of gratia could never be extinguished: ‘For I owe (still) when I have returned, start again, but friendship stays.’81 Although the ideals of voluntariness and altruism connected to both benignitas / liberalitas and gratia were widely fostered the system was highly prone to manipulation. Authors such as Martial, Horace and Pliny describe gifts as baits on an angler's hook.82 It is no coincidence that Cicero’s letters of recommendation use the prospect of gratia and a return favour to persuade the addressee to grant a request.83 The attitude toward beneficia and gratia, therefore, was highly ambiguous as people could be both motivated by altruïsm and self-interest.84 A remarkable feature of reciprocity ethics in most cultures is that they are competitive. A gift or favour should not only be returned, but the return should ideally be worth at least as much or more. A Roman saying claimed that ‘it is disgraceful to be outdone by acts of kindness’.85 Whenever someone was unable to return a favour of equal value he lost the game and became tied to his benefactor. ‘To accept a kindness (beneficium) is to sell your liberty’, wrote Publilius Syrus.86 It was vital that a more or less equal balance of debits and credits could be maintained. If not, the relationship became asymmetrical and patronal. 1.3 Fides Amicitia belonged to what Gelzer called ‘Nah- und Treuverhältnisse’: relationships based on fides.87 Fides is both an easy  because universal

81 SENECA, Ben. II, 18, 5: debeo enim cum reddidi, rursus incipere, manetque amicitia. Compare SAHLINS (1972), p. 186: ‘If friends make gifts, gifts make friends’. 82 MARTIAL V, 18, 7-10; HORACE, Epist. I, 7, 73; Serm. II, 5, 25; PLINY, Epist. IX, 30; cf. SHERWIN-WHITE (1966), p. 513; cf. also PUBLILIUS SYRUS, Sent. B37 (ed. Meyer): Beneficia donari aut mali aut stulti putant. Mali are those who are ungrateful, stulti are those who don’t recognise the true object of their benefactors. 83 cf. e.g. CICERO, Fam. XIII, 65, 2; Att. XVI, 16a, 5. 84 See e.g. DIXON (1993), p. 452 who speaks of ‘apparent disparities between the overt and actual codes of behaviour’. 85 SENECA, Ben. V, 2, 1: turpe esse beneficiis uinci. See also ibid. I, 4, 3; CICERO, Off. I, 48; Fam. VII, 31, 1; on the competitiveness of gift-exchange cf. MAUSS (1923-1924), p. 38-40; MACHEREL (1983), p. 162-164; MICHEL (1962), p. 452-453; HANDS (1968), p. 26-27. 86 PUBLILIUS SYRUS, Sent. B5 (ed. Meyer): Beneficium accipere libertatem est uendere. See SAHLINS (1972), p. 133: ‘”Gifts make slaves”, the Eskimo say, “as whips make dogs”’. 87 GELZER (1912), p. 71; GELZER (1960), p. 164; cf. BRUNT (1988b), p. 355-360.

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 and a complex concept  because applicable to widely diverse situations. Its original meaning seems to have been ‘trust’, both in an active sense  the trust put in someone  and in a passive sense  the trust enjoyed by someone and hence the disposition deserving trust. This trust is based on loyalty and solidarity, manifest in the acknowledgement of personal obligations (officia).88 As with gratia, fides was a broad concept, not limited to personal relations. Fides was conceived as crucial to the whole of social life. According to Cicero fides was the fundamentum iustitiae.89 There was a communis fides owed to all mankind and a specific fides owed to fellow citizens. Fides underlay and guaranteed both international treaties between states and common commercial contracts between merchants. It expressed both a debtor’s solvency and his credibility.90 Most of all, however, fides served as the cement of personal relations. As such it was the true core of Roman friendship.91 Cicero describes it as the firmamentum stabilitatis constantiaeque of amicitia.92 As a city without a port cannot be a safe haven to ships, so a soul with no fides cannot be steadfast for friends.93 Fides guaranteed that all kinds of obligations were upheld. Thus it manifested itself among other things in the scrupulous upholding of obligations derived from gratia. Any beneficium / officium could be construed as an expression of fides. As such, it may be said that fides generated and supported the obligations inherent in amicitia.94 Moreover, gratia and fides were inextricably linked. A favour or gift was never supposed to be reciprocated immediately because this would extinguish the reciprocity ‘debt’ that bound the amici together. Therefore, gratia implied a time lag, but even when a return gift had been made gratefulness was not supposed to end.95 Thus ideally gratia was a

88

cf. FREYBURGER (1986), passim; HELLEGOUARC’H (1963), p. 23-25. CICERO, Off. I, 23. 90 cf. FREYBURGER (1986), p. 115-166; for fides in commercial contracts see BERGER (1953), p. 471; IMBERT (1959), passim; cf. GELLIUS XX, 1, 41; CICERO, Off. II, 40; but cf. already DEMOSTHENES, Phorm. (XXXVI) 44. 91 cf. e.g. CLAUDIUS CAECUS, Sent. 249 (ed. Ribbeck): amicitiae unica est fides coagulum. See also BRUNT (1988b), p. 355. 92 CICERO, Off. I, 65. 93 CICERO, Inu. I, 47: Nam ut locus sine portu nauibus esse non potest tutus, sic animus sine fide stabilis amicis non potest esse; cf. also PLAUTUS, Merc. 839. 94 cf. CICERO, Fam. III, 9, 1; Marc. 14; PLAUTUS, Trin. 1128. 95 SENECA, Ben. IV, 40, 5; cf. RACCANELLI (1998), p. 34; a general feature of reciprocity in all cultures, cf. MAUSS (1923-1924), p. 91-93; MACHEREL (1983), p. 152-153. 89

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durable disposition that required mutual trust and feelings of solidarity – in other words fides. On the one hand, fides could be regarded as the trust put by one partner in the other’s benignitas and gratia. On the other hand fides implied solidarity and had to be shown in officia that would inevitably generate gratia. Thus gratification was both cause and effect of fides. 1.4 Beneuolentia / amor Most scholars agree that amicitia and philia denoted relations based primarily on instrumental reciprocity obligations in which affection played only a secondary role.96 In sociological terms amicitia is seen as a ‘dyadic alliance’, formed voluntarily between free and independent partners, and based on reciprocity and personal loyalty.97 Recently, however, Konstan has challenged this prevalent opinion. Although he acknowledges the importance of the principle of reciprocity in the Ancient World, Konstan claims that ‘relations among friends … appear to be precisely the area that is exempt from such expectations of a fair return. … (philia) constituted in principle, as modern friendship, a space of personal intimacy and unselfish affection distinct from the norms regulating public and commercial life’. Konstan concedes that the terms amicitia and philia could be used to cover up relations of dependence or mutual advantage, but, according to him, this is hardly relevant for the true nature of friendship in the Ancient World, since we too use the term ‘friendship’ for a wide variety of social relationships which we are well aware are by no means true friendships.98 Konstan is aware, of course, that instrumental friendship is much more common in history than ‘modern’ emotional friendship.99 But in his

96

MICHEL (1962), p. 446-601; HANDS (1968), p. 33; MILLETT (1991), p. 109-127; ADKINS (1963); GALLANT (1991), p. 142-169; ROULAND (1979), p. 13-15; SALLER (1982), p. 11-15; SALLER (1989); MOUSSY (1966), p. 357-406; FIORE (1997), p. 66-67, 71-73; SCHROEDER (1997), p. 38-39; MITCHELL (1997), p. 1-21; more critical: BRUNT (1988b). 97 LANDÉ (1977a), p. xiii-xiv; FOSTER (1977). 98 KONSTAN (1997), p. 82; on the author’s view on friendship in the classical world see also KONSTAN (1995); KONSTAN (1996) Contra Konstan see RACCANELLI (1998), p. 19-22. 99 Among historical studies cf. e.g. KETTERING (1986; KETTERING (1992) (on seventeenth century France); KOOIJMANS (1992) (18th c. Holland); for instrumental friendship in sociology as a common type of relationship see WOLF (1966), p. 10-13; LANDÉ (1977a); EISENSTADT & RONIGER (1984), p. 6-18, 269-293; CAMPBELL (1964), p. 224-238; BOISSEVAIN (1966), p. 22.

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view both the Ancient World and modern society ‘perhaps for entirely different reasons – did produce a space for sympathy and altruism under the name of friendship that stands as an alternative to structured forms of interaction based on kinship, civic identity, or commercial activity.’100 Konstan’s theory goes against many crucial texts from the ancient sources. Aristotle, for example, claimed that although perfect philia was based on love for the absolute Good ( ) and the virtue ( ) of benevolence ( ), most philiai were actually based on utility ( ) or pleasure ( ) and lasted only as long as they were useful or pleasant. Significantly, however, Aristotle expressly refused to restrict both the term and the concept of philia to perfect philiai because this would be too much in conflict with phenomenal reality ( ).101 The deadlock in Plato’s Lysis arises from precisely the conflicting images of philia as a relationship based on utility and one based on affection.102 Terence speaks of ‘procuring friends through a kindness’.103 A letter from Fronto to M. Aurelius expressly distinguishes amor form amicitia by saying that the latter exists only through the exchange of officia, whereas the former arises rather from impulse than calculation.104 In his De Inuentione Cicero claims that some people believe that amicitia is desirable only for its usefulness, others for itself only, again others for itself and its usefulness.105 It is true that Cicero claims in the Laelius that true amicitia is not fostered spe mercedis but is based on mutual affection and sought after for its own sake, as beneficentia and liberalitas are desirable for their own sake and not for the gratia they engender. But, Aulus Gellius relates how Cicero’s words were criticised as ambiguous because the motives behind liberalitas and beneficentia were themselves dubious. Significantly, Gellius concludes that

100

KONSTAN (1997), p. 5-6. ARISTOTLE, Eth. VIII, 4, 4 (1157a26-36); Eth. Eud. VII, 1-2 (1234b1-1238b14); refusal to restrict the term: Eth. Nic. VIII, 4, 4-5 (1157a26-34); Eth. Eud. VII, 2, 22-23 (1236b21-27); cf. Eth. Eud. VII, 2, 11-13 (1236a24-30); for Konstan’s analysis of Aristotle’s ideas on friendship see KONSTAN (1997), p. 67-78. 102 on the Lysis cf. ANNAS (1977), p. 532-539; VERSENYI (1975); SCOLNIKOV (1993). 103 TERENCE, Eun. 148: parere amicos beneficio. 104 FRONTO, Ad. M. Caes. I, 3, 5. 105 CICERO, Inu. II, 167. 101

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Cicero spoke of beneficentia and liberalitas in a philosophical sense only.106 Konstan’s interpretation is built on the idea that the abstract noun philia had a much wider application than the concrete noun philos. Whereas the former would ‘cover so wide a range of relations as to be effectively a different concept’, the latter would simply be the Greek equivalent of the English ‘friend’, with all its modern notions of sincere mutual affection attached. Therefore, although the Greeks had a word for ‘friend’, they did not have a word for what we call ‘friendship’ (although the same type of relationship – according to Konstan – did exist).107 Konstan is right in emphasising that Greek philia had a much wider meaning than English ‘friendship’, but this was never an issue in the debate about Greek ‘friendship’. One can even accept that the word philoi specifically denoted those who where linked by philia alone (and not, for example, by family ties as well).108 However, in my view, Konstan fails to show that the kind of philia binding philoi – what we would call ‘friendship’ – was in Aristotle’s eyes (and those of his followers) not also of three different kinds, viz. instrumental, hedonistic or based on virtue. The extension of Konstan’s ideas on Greek friendship to the Roman world is even harder to follow. Latin has a distinct word for friendship – amicitia – and the texts I have referred to in this chapter so far clearly show that favours, reciprocity and personal loyalty were considered crucial for the existence of any amicitia. Nevertheless, Konstan’s revaluation of the affectionate element in ancient friendship should not be entirely discarded. However instrumental actual amicitiae may have been, amicitia was expressed in emotional terms and a certain minimum of affection was expected. The incessant recourse to emotional terms in, for instance, Cicero’s letters of recommendation shows that affection was part and parcel of amicitia.109

106

cf. CICERO, Am. 30-31; GELLIUS XVII, 5, 1-14. KONSTAN (1997), p. 68; for the idea that amicitia / cannot be adequately translated by ‘friendship’, cf. e.g. SALLER (1983), p. 256; MILLETT (1991), p. 114; ANNAS (1977), p. 532. 108 Although certainly not so rigidly as Konstan assumes, see e.g. ARISTOTLE, Eth. Nic. VIII, 1, 4 (1155a26-27): 107

109

SALLER (1982), p. 12; affection was expected even in case of municipal patronage, cf. DUTHOY (1984), p. 12; cf. also ADKINS (1963), p. 33: ‘undoubtedly anyone who uses of a person or thing does so in virtue of an emotion which he feels for that person or thing.’. See also MITCHEL (1997), p. 8-9. For amor see e.g. CICERO, Fam. I, 8, 2; II, 1, 2; IV, 5, 6; V, 15; 15; 17, 5; 20, 9; VII, 2, 1; 8, 2, ; IX, 11; 15; 16; X, 5; 24, 1; XI, 20, 1; 20, 4; 27; XII, 29; XIII, 7; 29; 50, 2; XIV, 1; XVI, 1, 3 (these are merely a few examples out of a total of 123 in the Ad Familiares alone!).

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However, affection – like gratitude – is not only an internal psychological quality, but also a social norm. Our affections, like our actions, are subject to social pressure. Thus, for example, children are expected to love their parents, while parents are expected to love their children. The socialisation processes forming us, ‘teach’ us whom we are to love in what way. Affection in philia and amicitia was also subject to such social norms. Philoi and amici were expected to feel affection for one another. Of course, this affection could be feigned, but so could gratia. What matters here is that the norm of affection was very real. This norm of affection was not opposed to the norms of reciprocity and personal loyalty. On the contrary, the norm of affection was itself inherent to gratia as a response to favours received. Amor was thus owed in response to beneficia. In his Panegyric to Trajan, Pliny the Younger claimed that the emperor had so great a capacity to put his friends under an obligation that only an ingrate could fail to love him.110 Seneca noted that this love-in-response-to-favours was part of the natural order of things, since even wild beasts were brought to love those who cared for them. Of course, friendly affection had in turn to be shown by beneficia that would kindle gratia in the receiver.111 So although emotional friendship can (and should) be distinguished from instrumental friendship from a conceptual and motivational point of view, from a normative point of view affection and utility coincide in the institution of friendship as it emerges in the Greek and Roman world. In this respect, ancient society was in no way unique. In fact, the norm of affection is a general feature of instrumental friendship observed in a wide variety of cultures. ‘A minimal element of affect remains an important ingredient in the relation. If not present, it must be feigned. When the instrumental purposes of the relation clearly take the upper hand, the bond is in danger of disruption’.112 Sharon Ketting and Luuc Kooijmans

110 PLINY, Pan. 85, 8: tibi amicos tuos obligandi tanta facultas inest, ut nemo te possit nisi ingratus non magis amare. 111 SENECA, Ben. I, 2, 5; cf. also CICERO, Am. 29; Fam. XIII, 60, 1; FRONTO, Ad M. Caes. I, 3, 4; PLAUTUS, Trin. 438-439; RACCANELLI (1998), p. 21, 37-40. Compare also VALERIUS MAXIMUS V,4,7 on love towards parents as the prima naturae lex. 112 WOLF (1966), p. 13; cf. EISENSTADT & RONIGER (1984), p. 6-18, 269-293; LANDÉ (1977a), p. xxix.

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noted the importance of affection in patronage and instrumental friendship in Early Modern France and Holland.113 Far from having an exclusively emotional or instrumental content amicitia and philia were complex relationships in which reciprocity, affection and personal loyalty were mingled and advantage and altruism intertwined, together producing and being produced by beneficia. It was precisely this mixture of different aspects that makes it so hard for Socrates in Plato’s Lysis to come to grips with the concept of philia. Whoever loves another favours the one he loves, and whoever is favoured loves the one who favours him. Aristotle’s new paradigm of philia for the first time successfully (but unrealistically) distinguished between utilitarian and hedonistic friendship on the one side – based indirectly on self-love – and perfect or true friendship on the other side – based on love for what is good ( ) in others. From here, it was a small step to Cicero’s opposition between amicitia based on utility and amicitia based on amor.114 In everyday life, such philosophical distinctions hardly mattered. To receive a beneficium was gratifying and had to kindle both amor and gratia. Although it is true that the concepts of amicitia and philia signified relations of sincere affection, this affection itself cannot be understood in isolation from reciprocity and personal loyalty. Overall, we should beware of being too sceptical. Aren’t we all sincerely pleased when we receive a kindness? As Seneca remarked, the norm of affection as a response to kindness may very well be an innate quality of humans as social beings. Manipulation was possible only because the norm of affection – as that of reciprocity – was generally acknowledged. 1.5 Existimatio and dignitas. Liberalitas / benignitas, fides, gratia, and beneuolentia / amor form the ethical framework of amicitia, regulating the exchange of beneficia / officia

113 114

KETTERING (1986), p. 13-14, 18-19; KOOIJMANS (1992), p. 48. Cf. in this sense DIONYSIUS HAL.

VIII,

34,

1:

Note that Aristotle does not claim that affection is absent from utilitarian or hedonistic , all types of consist of an , (Eth. Nic. VIII, 3, 1 (1156a6-10)) The typology is based on the reason why friends love each other (cf. KONSTAN (1997), p. 72-73). For Aristotle’s ideas on friendship in general see SCHROEDER (1997); MILLETT (1991), p. 109-112; for Cicero’s ideas see CICERO, Am. 19, 26; Fin. I, 65-72; II, 78-85; FIORE (1997); BRUNT (1988b), p. 351-360; SANSEN (1975), p. 240-263; MICHEL (1962), p. 507511.

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and justifying and explaining social action. But how could this framework itself be upheld? If amicitia is based on advantage, then why foster it when this advantage disappears? The Epicurean’s answer was: ‘So that I would not incur ill will (odium) when I stop to support a friend’.115 In other words: because the reputation of a person depended on his respecting the ethical imperatives of amicitia.116 The importance attached to reputation (existimatio, fama) in ancient Rome is well known. The social identity of a notable rested on his existimatio and dignitas.117 According to Cicero, if a man lost his reputation, he was worse than dead.118 Seneca the Elder tells the imaginary story of a murderer whose status and political influence placed him above the law. The victim’s son had no option but to follow his father’s murderer in mourning through the streets day after day. In the end, the murderer’s existimatio suffered so much that he shamefully lost a subsequent election against all odds. Of course the story is ‘too good to be true’, but it does show how existimatio was conceived of as crucial to a person’s social position and a potential means of pressure. The concept thereby functioned as a social control mechanism.119 The ethical framework of amicitia served as a reference map with which to position oneself and others in society. The ‘good man’ was gratus, fidus and liberalis / benignus. Whoever proved himself ingratus or infidus hurt his existimatio and thereby his social position. The consequences were not only psychological. A reputation for illiberalitas, ingratia or infidelitas made someone a less interesting partner in which to ‘invest’ beneficia.120 Callistratus defined existimatio as dignitatis inlaesae status (Dig. L,13,5,1,pr.). Dignitas indicated a person’s elevated social rank based mainly on prestige.121 However, just as the English ‘dignity’ is not necessarily

115

CICERO, Fin. II, 79: Ne in odium ueniam, si amicum destitero tueri. see BLEICKEN (1981), p. 245; NICOLS (1980), p. 366; DIXON (1993), p. 455; the link reputation - social identity - reciprocity / friendship / patronage is common in many different cultures: see already MAUSS (1923-1924), p. 91-94; esp. PITT-RIVERS (1977); cf. also EISENSTADT & RONIGER (1984), p. 212-213; KETTERING (1992), p. 143-145, 156. 117 cf. HELLEGOUARC’H (1963), p. 362-364; LENDON (1997), p. 31-52. On honour and social identity compare PITT-RIVERS (1977), p. 2. 118 CICERO, Quinct. 49; 98; Rosc. Com. 16. 119 GARNSEY (1970), p. 216-217; KELLY (1966), p. 49-50; COTTON (1986), p. 454. 120 cf. MICHEL (1962), p. 589-590. 121 cf. HELLEGOUARC’H (1963), p. 389-401; MRATSCHEK-HALFMANN (1993), p. 86 (‘gehobene Stellung aufgrund eines anerkanntes Prestiges’); GARNSEY (1970), p. 224-225; ALFÖLDY (1986a), p. 413-414, 418-420; ALFÖLDY (1986b), p. 445-446; NICOLET (1966-1974), p. 236-241; cf. also FINLEY (1973), p. 35-61. 116

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a monopoly of the higher status levels, dignitas too had a much wider meaning. The term could be used, for example, to indicate a woman’s or a young man’s sexual integrity.122 Ulpianus even used the expression dignitas manciporum (Dig. VII,1,15,2). Cicero emphasised the ethical foundations of the concept: ubi autem est dignitas, nisi ubi honestas? (Att. VII,11,1). Honestas in turn was a broad concept, denoting integrity or virtue and comprising among other things fides and gratia. Thus Cicero could speak of a dilectus dignitatis in choosing upon whom to confer beneficia.123 The concept of dignitas belongs to the semantic field of the typically Mediterranean concept of ‘honour’, as defined by Pitt-Rivers. Or, as Saller put it: ‘The most basic premise from which the Romans started was that honour and prestige derived from the power to give what others needed or wanted.’124 Dignitas was not so much an inner quality acquired by a person as a social quality conferred upon a person. Dignitas was basically the quality of a person inspiring respect and deference in others. As such the concept relied on fides and gratia, because a person unable to uphold officia derived from fides and gratia could no longer command respect and lost his dignitas. Consequently, a person unable to reciprocate, who was beneficio obligatus, yielded in dignitas to his benefactor.125 Dignitas had to be earned by the performance of beneficia testifying to a person’s liberalitas / benignitas. In such a train of thought

122

PETRONIUS 18, 6; 106, 4; cf. TERENCE, Heaut. 574-576. On the link between sexual integrity and honour, notably of women see McGINN (1998), p. 10-14, 311-316. 123 CICERO, Off. I, 45 (cf. ibid. I, 42). Dignitas is a favourite term of Cicero, used 934 times in his works, of which 274 time in his letters, compared to 42 occurrences in Pliny’s work, 17 in Fronto and only 60 in Livy (counted in the PHI#5 CD-ROM). 124 SALLER (1982), p. 126. See also DIXON (1993); MACMULLEN (1986), p. 519-524; HELLEGOUARC’H (1963), p. 393-396, 407; LENDON (1997), p. 63-69; FREYBURGER (1986), p. 47, 57. For the Mediterranean concept of honour cf. PITT-RIVERS (1977); CAMPBELL (1964), p. 268-274; EISENSTADT & RONIGER (1984), p. 74-77, 21-214; GUERREAU (1993); MOUTOUKIAS (1992), p. 902; HORDEN & PURCELL (2000), p. 485-523. The link between status and generosity / reciprocity is also found in many ‘primitive’ cultures, see SAHLINS (1972), p. 133, 207-208. 125 Compare PITT-RIVERS (1977), p. 3. For the transposition of the these ideas on the international level see now MATTERN (1999), p. 171-210. See also Dig. IL, 15, 7, 1: clientes nostros intellegimus liberos esse, etiamsi neque auctoritate neque dignitate neque uiri boni nobis praesunt. This explains why notables shunned the name of clients: cf. BRUNT (1988c), p. 395; SENECA, Ben. II, 23; CICERO, Off. II, 69; DYCK (1996), p. 457-459; CAESAR, B.C. III, 18, 4.

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poverty implied the absence of honour.126 Conversely, dignitas as a social concept depending on prestige was vulnerable to insults and had to be defended thus legitimising vengeance and violence. Retaliation could be seen as just another aspect of reciprocity: quid pro quo.127 The efficiency of dignitas and existimatio as social control mechanisms should not be overestimated. Reputation relies more on appearance than on fact, is easily manipulated and is often more vulnerable to gossip and lies than to truth, while on the other hand power or money can easily enforce the outward signs of honorability.128 As a social-control mechanism existimatio can be effective only within small groups where information is reasonably accurate and easily accessible, and against those whose position depends upon the networks of gratia they control. To some extent, this may have been the case for the Roman elite internally, but wealth and power have a life of their own. Although ‘a friend in need is a friend indeed’, ‘friends’ are usually most available to those who least need them, but know best how to use them. Moreover, honour is vulnerable mainly to the opinions of peers. Affronts or condemnations by vastly inferior (ordinary) people hardly matter. ‘A man is answerabble for his honour only to his social equals, that is to say, to those with whom he can conceptually compete.’129 Nevertheless, appearances had to be kept up. The ethical imperatives of friendship and honour could be manipulated, but not ignored. Although the rules of the game were constantly twisted and manipulated, they remained in force.

126

cf. HELLEGOUARC’H (1963), p. 393-396; FREYBURGER (1986), p. 47, 57. On poverty as opposed to honour see also HORDEN & PURCELL (2000), p. 499 (in twentieth century Naples). 127 See MACMULLEN (1986), p. 512-519; LENDON (1997), p. 52-55; Caesar excused his course of action in 50-49 by referring to the insults his dignitas had suffered from his enemies; cf. CAESAR, B.C. I, 9, 2; CICERO, Att. VII, 11, 1. On the vulnerability of reputation compare KETTERING (1986), p. 63. 128 cf. ADAMS (1971), passim; PITT-RIVERS (1977), p. 4. 129 PITT-RIVERS (1977), p. 10.

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FRIENDSHIP AND PATRONAGE.

The terms amicitia and its near synonyms necessitudo and familiaritas were frequently used euphemistically to denote relations between patron and client.130 Scholars have long believed that this practice covered up a reality in which both terms had a fundamentally different meaning.131 Amicitia was a concept emphasising equality and affection between both partners in a dyad, whereas clients were by definition socially inferior132 and their relation with their patron (and vice versa) was motivated by need and self-interest. Patronage was basically a dependency relationship between persons of unequal rank, wealth or power, while amicitia was a relationship based on affection and equality between independent partners. But if this was so then why was amicitia a suitable euphemism for patron-client relations? There has lately been much disagreement about how amicitia and patronage were related to each other in the Roman World. Traditionally, since Mommsen and Von Premerstein, Roman clientela was thought to have developed from a serfdom-relationship encompassing both patron-client relations and patronfreedman relations, to a non-enforceable relationship based on ethical imperatives similar to those regulating amicitia.133 By the time of the Late Republic the distinction

130

See e.g. SENECA, Ben. VI, 33-34; Ep. 94, 14; JUVENAL 5, 12-15; CICERO, Fam. IV, 12, 2; VALERIUS MAXIMUS IX, 11, 4; LIVY Epit. CV. On Juvenal in particular see LAFLEUR (1979). For a comparable use of the term amicizia in contemporary Italy see BLOK (1969a), p. 371-373; BOISSEVAIN (1966), p. 22; in modern Greece cf. CAMPBELL (1964), p. 253; ‘amitié’ in Early Modern France cf. KETTERING (1986), p. 14-15; KETTERING (1992), p. 139. 131 cf. ROULAND (1979), p. 455-464; KONSTAN (1995); KONSTAN (1997), p. 135-137 (contending that amicitia as a ‘bond of generous affection, loyalty and intimacy can coexist with the recognition that degree must receive its due’ (p. 137)). 132 See e.g. Dig. IL, 15, 7, 1; AMPELIUS 49, 1-3; note also that Plutarch derived patronus from Patron, one of the companions of Evander in Italy who became famous as a protector of the poor and needy (Rom. 30, 2). 133 MOMMSEN (1887) III, p. 54-88; MOMMSEN (1864); VON PREMERSTEIN (1901); but see already FUSTEL DE COULANGES (1864), p. 271-276; FUSTEL DE COULANGES (1890), p. 205206; also MEIER (1966), p. 24-34; KASER (1955) I, p. 103-104; DE MARTINO (1979), p. 19-23, 106, 287; DE MARTINO (1980); DE MARTINO (1994), p. LEVI (1996); ROSAFIO (1993), p. 169-176; for a highly critical survey see BRUNT (1988c), p. 400-414. ROULAND (1979) does not believe the original clientes to have been only half-free (p.79-85), but does accept the contractual nature of the patron-client bond (p. 104-107, 269-270). On the link between patron-client and patron-freedman relations see also LEMOSSE (1949), p. 46-56; WALDSTEIN (1986), p. 69-80; contra see ROULAND (1979), p. 98-102; DE MARTINO (1994), p. 344-345.

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between patronage and amicitia had become blurred. A client was beneficiis deuinctus, the relationship was based on fides and gratia, affection was due and the reputation of the partners was at stake. But although the two kinds of relationship had grown closer, patronage was thought to have retained enough of its archaic formal traits to be technically and unequivocally different from amicitia.134 Richard Saller – taking an interdisciplinary and comparative approach – argued that patronage and amicitia should be studied as different forms of what was essentially the same typekind of relationship. In his view, patronage could be described adequately as a ‘lop-sided’ friendship based on asymmetrical reciprocity, whereas amicitia was a relationship based on symmetrical reciprocity. 135 In doing so Saller was the first to apply sociological theory to the problem of Roman patronage. He was followed by others and the approach gained much momentum by the publication in 1989 of a number of papers presented at a series of seminars held at Leicester and Nottingham University in 1984-1986.136 Not all scholars agree, however, and the traditional approach – with some modifications – continues to be popular. Millar strongly questions the validity of applying the modern (sociological) concepts of ‘clientage’ and ‘patronage’ to explain phenomena (in this case Roman Republican politics) in a society where no equivalent terms existed.137

134 HELLEGOUARC'H (1963), p. 56; MOUSSY (1966), p. 358-359; ROULAND (1979), p. 455464; SALLER (1982), p. 11-12. 135 SALLER (1982), p. 11-15. Compare LANDÉ (1977) and FOSTER (1977) applying the concepts ‘dyadic alliance’ and ‘dyadic contract’ to both (instrumental) friendship and patronage. 136 MILLET (1989); SALLER (1989); WALLACE-HADRILL (1989); DRUMMOND (1989a); RICH (1989); BRAUND (1989); GARNSEY and WOOLF (1989); HOPWOOD (1989); DRINKWATER (1989); CLOUD (1989). With commentaries by two sociologists JOHNSON and DANDEKER (1989). See also GARNSEY & SALLER (1987), p. 152-154. Interestingly, sociologists began to include Roman society in their studies about the same time, unfortunately following largely the ‘Mommsen-model’. See RONIGER (1983); EISENSTADT & RONIGER (1984), p. 52-64. 137 MILLAR (1984), p. 17. (Compare more in general MILLAR (19 77), p. xi-xii) See also BADIAN (1982); SHERWIN-WHITE (1983); D'ARMS (1986).

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However that may be, it should be duly noted – as Millar correctly emphasises – that the sociological concepts of ‘clientage’ and ‘patronage’ differ substantially from the Roman concepts of clientela and patrocinium. The concepts of ‘patronage’ and ‘clientage’ indicate a general type of personal relationship that may occur in any society under widely different names and appearences and which is characterised by reciprocity, asymmetry and personal loyalty. Patrocinium and clientela on the other hand were typically Roman concepts that can only be fully understood within the context of Roman history and culture. But what about the relationship between amicitia and patrocinium / clientela? Although it is beyond doubt that the terms amicus and amicitia served as euphemisms to cover up relations of factual dependence,138 several instances indicate that the use of these terms went beyond the level of social niceties. Thus Cicero claimed that the T. Roscius Capito and Magnus had an amicitia with Chrysogonus since they had broken with the patroni et hospites of their ancestors and put themselves in the fides et clientela of Chrysogonus.139 The businessman M’ Curius addressed Cicero in a letter as both amice magni and patroni mi.140 Mallius Glaucia (who murdered Sex. Roscius from Ameria) is designated as familiaris et cliens of T. Roscius Magnus.141 The juxtaposition of terms in these three cases suggests that the alleged amicitiae were no mere cover-ups for patron-client relations. Moreover, Cicero’s choice of words in the case of Chrysogonus’s patronage over the T. Roscii clearly shows that the relation between patron and client could be termed amicitia. Although the word cliens is used more frequently to denote persons of lesser social rank,142 we have several examples of the term being applied

138

cf. supra p. 41 see esp. Seneca's distinction between regum amicitiae, pares amicitiae, inferiores amicitiae (Ep. 94, 14). See also JUVENAL 5, 12-15; for rex as literary synonym of patron see PLAUTUS, Asin. 919; Capt. 92; Stich. 455; Men. 901-902; TERENCE, Eun. 339; HORACE, Epist. I, 7, 37; MARTIAL, I, 21, 1; 112, 1; II, 18, 5, 8; 68, 2; II, 7, 5; IV, 40, 3; 83, 5; V, 19, 13; 22, 14; IX, 73, 3; X, 10, 5; 96, 13; XII, 31, 8; 48, 16; 60, 14; JUVENAL 5, 12-15, 130, 137, 161; 7, 45; 8, 161; 10, 161; 14, 155; CICERO, Sen. 37. 139 CICERO, Rosc. Am. 106: erat enim eis cum Chrysogono iam antea amicitia; nam cum multos ueteres a maioribus Roscii patronos hospitesque haberent, omnis eos colere atque obseruare destiterunt ac se in Chrysogoni fidem et clientelam contulerunt; of course the allegation is meant to discredit Roscius Magnus and Capito, but the point here is that an amicitia could apparently arise from being in someone's fides et clientela. 140 CICERO, Fam. VII, 29, 2. 141 CICERO, Rosc. Am. 19. 142 see e.g. Hilarus, freedman of Cicero and cliens of Atticus (CICERO, Att. I, 12, 2); Licinius, freedman of C. Gracchus' wife and cliens of Catullus (GELLIUS I, 11, 16); Mena, a praeco tenui censu and cliens of Marcius Philippus (HORACE, Epist. I, 7, 55-59).

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to fairly important people.143 , for example, even senators had, according to Seneca and Tacitus, become clients of Seianus.144 Seneca’s and Cicero’s complaint that the rich and powerful preferred to seem ungrateful than to be thought clients presupposes that the word could  at least in principle  be applied to them.145 This is confirmed by the famous lex de repetundis from the Tabula Bembina (late second century BCE) where we read that patrons of defendants could not act as prosecutors and were exempted from the obligation to testify against their clients. Since the law only applied to senators, it follows that senators could at that time still be termed clients.146 According to Mommsen and his followers, Roman patronage (contrary to amicitia) would have been a rigidly structured contractual relationship, with formal procedures to initiate and to end the relationship, indisputable mutual obligations and unequivocal symbols. These formalities were considered remnants of the time when patronage was a legally enforceable relationship. In Mommsen’s and Von Premerstein’s view there were three ways in which a free man could become another’s client: Deditio – a conquered enemy begging mercy became a client of the victorious commander; Birth – patronage was a family affair, the child of a client became the client of his father’s patron; Applicatio – an independent individual could become a client by means of a formal ‘attachment’rite.147 In addition,

143

the important eques Caecina (NICOLET (1966-1974), p. 812-813) was a uetus cliens of the Servilii (CICERO, Fam. XIII, 66); C. Marius of the Herennii (PLUTARCH, Mar. 5, 4); Roscius Magnus and Capito came from a distinguished equestrian family in Ameria (Rosc. Am. 107; NICOLET (1966-1974), p. 1004-1005); M' Curius who addressed Cicero as his patron was a wealthy businessman in Patrae (Fam. VII, 29, 2); P. Magius Chilo, who murdered his friend and patron M. Marcellus before committing suicide, may have been a parvenu but was surely no pauper (CICERO, Fam. IV, 12, 2; VALERIUS MAXIMUS IX, 11, 4; LIVY Epit. CXV); neither was the stoic P. Egnatius Celer, cliens of Q. Marcius Barea Soranus (TACITUS, Ann. XVI, 32); much later a Gallic noble termed himself the cliens probatissimus of the Roman governor (CIL XIII, 3162a). 144 SENECA, Dial. VI, 22, 4 (Cons. ad Marc.); TACITUS, Ann. IV, 2; cf. also TACITUS, Hist. III, 66. See also SALLER (1989), p. 52. 145 CICERO, Off. II, 69 (see DYCK (1996), p. 457-458); SENECA, Ben. II, 23. 146 FIRA I, no. 7,  10, 32-33, p. 92-93 (see now CRAWFORD (1996), p. 65-112 for a new edition with commentary and translation). See also BRUNT (1988c), p. 417; note also Cato the Elder’s marriage with the daughter of his cliens Salonius: PLINY, N.H. VII, 61; PLUTARCH, Cat. Mai. 24; SENECA, Contr. Exc. VII, 6, 17. 147 VON PREMERSTEIN (1901), col. 26-36; MOMMSEN (1887) III, p. 55-62. Mommsen equated clientes in archaic Rome with freedmen and, therefore, treated manumissio as a procedure initiating clientage, cf. supra p. 49.

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Gelzer distinguished a special form of commendatio (constituting a traditio) as an archaic formal means of transferring clients from one patron to another.148 Scholars for a long time accepted Mommsen’s thesis, although the evidence was (and is) meagre.149A semi-official patron-client relationship certainly ensued a deditio in war, but such clientelae bound communities, not individuals.150 Patronclient relations were inherited, but so were amicitiae.151 A patron-client relationship could start with a commendatio, but so could any amicitia.152 Cicero’s reference to the old saying tradere de manu in manu does not imply that such a traditio ever constituted a consequential formal rite. It would merely suggest that the term tradere was an ancient synonym (or precursor) of commendare.153 The only text referring to applicatio is an ambiguous phrase in Cicero’s De Oratore dealing with exiles from other cities seeking refuge in Rome with a protector quasi patronus. According to an ancient obscure custom, these quasi patroni would have been entitled to the inheritance left by the exiles in case of intestacy. Brunt rightly comments that ‘the text has no relevance to patronage over freeborn Romans’.154 Two passages in Terence’s Eunuchus are often thought to refer to a formal initiation rite that bound patron and client together, but they are totally isolated, highly ambiguous and inconclusive.155

148

GELZER (1912), p. 54-56; followed by DENIAUX (1993a), p. 36-44. see. e.g. BADIAN (1958), p. 2-9; DENIAUX & PANTEL (1987-1989), p. 148. See also in sociological literature: RONIGER (1983), p. 78; EISENSTADT & RONIGER (1984), p. 58-59; for the idea of a formal applicatio-contract initiating the relationship see ROULAND (1979), p. 96-98, 269-270; FREYBURGER (1986), p. 136-142, 149-152; DE MARTINO (1994), p. 354. For a devastating attack on the ‘evidence’ see BRUNT (1988c). Note e.g. that Dionysius’s chapters on the Romulan constitution seem to derive from a propagandistic pamphlet dating from the Late Republic (cf. infra). 150 See HARMAND (1957), p. 13-23; DE MARTINO (1994), p. 346. On communal patronage in general see also NICOLS (1980); NICOLS (1989); DUTHOY (1981) ; DUTHOY (1983) ; DUTHOY (1984). 151 cf. KIRSCHENBAUM (1987), p. 171, n. 186; e.g. CICERO, Fam. XIII, 29; 51; 66, 1; Att. XVI, 16A; Rosc. Am. 15; 27; Rab. Per. 2. 152 See DENIAUX. (1993), p. 187-189. 153 CICERO, Fam. VII, 5, 3; the expression is unique but compare PLAUTUS, Trin. 902. On the use of tradere / traditio as synonyms of commendare /commendatio see DENIAUX (1993a), p. 36-44. 154 CICERO, De orat. I, 177. See BRUNT (1988c), p. 404; ROULAND (1979), p. 82-83. Contra see recently DE MARTINO (1994), p. 352 who believes the iusiurandum liberti derived from an ancient oath of allegiance to their patron taken by clients. 155 TERENCE, Eun. 886-887: 'ego me tuae commendo et committo fide[i], / te mihi patronam capio, Thai'; Eun. 1039-1040: 'Thais patri se commendauit, in clientelam et fidem / nobis dedit se'; on these see ROULAND (1979), p. 270; FREYBURGER (1986), p. 151-152. 149

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Since the time of Plautus (at least), a patron-client relation could start with any favour or gift that a client was unable to repay, thus binding him morally to his patron.156 Volteius Mena, for instance, became Philippus’s client when he accepted an invitation to dinner.157 In more general terms it seems clear that at least by the third century BCE someone ended up in the clientela of a patron when and because he became beneficiis deuinctus; i.e. when he received a favour he was unable to pay back. Roman patronage thus shows itself as an asymmetrical reciprocity relationship.158 Plutarch’s life of Marius tells how C. Herennius refused to testify against Marius because the Marius’s family had been in the clientela of the Herennii for many generations. Marius was not pleased with this reasoning (it denounced him as socially inferior) and claimed that his reaching the tribunate and becoming a senator had ended his inherited position as client of the Herennii. Plutarch comments that Marius was wrong: only a curule magistracy could end a clientela.159 The story would seem to prove that as late as the late second century a client could not voluntarily end the relationship with his patron. In fact, we know that this pretence was unenforceable. A patron-client relation ended whenever either wanted to break off the relationship. Saller regards the story as a reflection of an archaic rule, long in disuse by the Late Republic.160 The main question is, was this rule ever enforceable or are we dealing rather with a social constraint? The anecdote about Marius shows that the lex de ambitu, under which Marius was tried, accepted patrocinium as a valid excuse for not appearing as a witness for the prosecution. The lex de repetundis from the Tabula Bembina has a similar clause in which patroni and clientes are

156 although ROULAND (1979), p. 269-270 concedes that a patron client relation in Plautus 'semble naître de façon spontanée et résulter du simple service rendu par le patron', he nevertheless clings to the idea that there must have been 'une sorte de contrat verbis'. 157 HORACE, Epist. I, 7, 46-95. See also MARTIAL, IX, 100, 1; the invitation of course symbolised and indeed promised more substantial benefits. On the symbolic role of food and common meals in Roman patronage see: WALLACE-HADRILL (1989), p. 73; D’ARMS (1984). See infra on sportulae. 158 SALLER (1982), p. 11-15; SALLER (1989); GARNSEY & SALLER (1987), p. 152-154; WALLACE-HADRILL (1989); LENDON (1997), p. 66-67. 159 PLUTARCH, Mar. 5, 4; cf. DENIAUX (1973) 160 SALLER (1989), p. 50-51.

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exempted from being called upon as witnesses against their clients.161 Cato the Elder referred to the same principle, ascribing it to the maiores.162 Significantly, however, the lex de repetundis did not expressly forbid patrons and clients to testify against each other. It merely ruled that the praetor could not order (dum nei ... iubeat) them to give evidence against each other. Cato clearly refers to a strong moral constraint, and not to any specific legal rule.163 Brunt correctly noted that the leges de repetundis and de ambitu are isolated cases in the history of Roman law. The lex Atilia de tutoribus dandis did not recognise patrons as the expected guardians of their clients’ underage children, although it did mention their father’s amici.164 However, can the articles in the leges de repetundis and de ambitu be considered remnants of a time when the patron-client relation carried legally enforceable rights and duties?165 A famous article in the XII Tables would seem to substantiate this idea. It reads: patronus si clientem fraudem fecerit, sacer esto.166 The fragment is preserved by Vergil’s commentator Servius who uses it to explain the words fraus innexa clienti in Aeneis VI,609 where patrons who betrayed (? fraus innexa) their clients are placed in the depths of Tartarus, together with those who hated their brothers, beat their parents, refused to share their wealth with their family, cheated on their spouses or bore arms again their masters. The interpretation of this fragment is fraught with difficulties. Brunt rejects the authenticity of the clause altogether.167 The main problem is the meaning of fraus. Imbert does not believe that fraus was a juridical concept at the time of the XII Tables. In later law the term means dolus, ‘fraud’.168 Assuming, for the sake of the argument, that the term did have

FIRA I, no. 7,  32-33, p. 92-93 (see now CRAWFORD (1996), p. 65-112 for a new edition with commentary and translation);  10 excludes patrons from acting as prosecutors, but this may have been meant to protect the claimants rather than the defendants. 162 CATO, ORF 200 (= GELLIUS V, 13, 4) 163 see also BRUNT (1988c), p. 416-417. 164 BRUNT (1988c), p. 417-419; DENIAUX (1973), p. 185-186 is wrong to refer to a number of other laws carrying similar clauses but concerning not patrons and clients, but patrons and freedmen. 165 VON PREMERSTEIN (1901) col. 39, 47; DENIAUX (1973), p. 183-186. 166 Servius ad Aen. 6, 609; on the traditional interpretation of the fragment see e.g. MOMMSEN (1887) III, p. 81-82; MOMMSEN (1864), p. 383-385; VON PREMERSTEIN (1901), col. 39; ROULAND (1979), p. 105107, 162; DENIAUX (1973), p. 184. 167 BRUNT (1988c), p. 409-410. 168 IMBERT (1959), p. 407-408; contra see ROULAND (1979), p. 107; KASER (1955) I, p. 524525. See BERGER (1953), p. 477 for the term in classical Roman law. 161

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a comparable ‘technical’ meaning at the time of the XII Tables, what kind of fraud did the law have in mind? Did fraus refer to any kind of transgression of the duties a patron owed his clients  as was clearly held by Vergil and his commentator Servius or did it refer only to his (chief) duty to assist his client in court? Aulus Gellius claimed that the Roman people held fides in such a high esteem that no deed was thought more base than for a man to be proved estranged from his client. The words used by Gellius are si qui probaretur clientem diuisui habuisse. De Martino believes diuisui habuisse should be read as ‘to usurp the goods of’, which would constitute the original meaning of fraus. But this is not what Gellius says. The obvious objects of the diuisus are the cliens and his patron. Nothing indicates either that the term diuisus would have been used by the XII Tables or even that Gellius had the clause patronus si clientem fraudem etc. in mind, for although this chapter of the Noctes Atticae discusses the law of the XII Tables, the excursion on fides is distinctly ascribed to the Roman people and not to the law of the XII Tables.169 It is in any case remarkable that the XII Tables granted any citizen the right to sue any other citizen, without making an exception for patrons or clients. This is hardly compatible with an ‘open’ definition of fraus. Dionysius mentions a comparable clause in the leges regiae but with a much more limited scope, applicable only to clients and patrons who prosecuted each other or who testified, pronounced judgement or bore arms against each other (cf. infra). It may also be relevant in this connection that when Cato claimed that the maiores thought it more venerable (sanctius) to defend pupils than not to fallere a client, he did so specifically in the context of the respective duties of guardians and patrons in court.170 Therefore, if the fragment preserved by Servius is authentic it most likely did not refer to the patron as the general protector of his clients, but to the patron in his role of defender in court.171

169

GELLIUS XX, 1, 41: Sic consules, clarissimos uiros, hostibus confirmandae fidei publicae causa dedidit, sic clientem in fidem acceptum cariorem haberi quam propinquos tuendumque esse contra cognatos censuit, neque peius ullum facinus existimatum est, quam si qui probaretur clientem diuisui habuisse. DE MARTINO (1994), p. 347-349. 170 GELLIUS V, 13, 4. 171 For the duty of patrons as defenders in court see NEUHAUSER (1958), p. 19-118, DAVID (1992), p. 49-280. Contra see ROULAND (1979), p. 105-107, 162, who believes fraus comprised every transgression of the duties a patron owed his clients, but who thinks the sacratio no longer had any practical effect.

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Another problem is that of the sacratio. Although we know that such a sentence existed at the time of the Kings and in the Early Republic, no other known clause in the XII Tables mentions a sacratio.172 Moreover, in order to be valid, a sacratio had to contain a reference to a divinity to which the condemned was made sacer. Dionysius , for example, mentions that patrons and clients who accused each other in court or testified or pronounced judgement against one another were outlawed by making them sacer to the ‘infernal Zeus’ ( ).173 No 174 divinity is mentioned in the Servius fragment. In fact, the entire interpretation of how Roman patronage developed from the days of the Kings to the days of the Classical Republic hinges on how we interpret the foundation myth of patronage. The story is most fully told by Dionysius and Plutarch, but the version they present almost certainly does not predate the Middle Republic.175 Dionysius’s account, seems heavily indebted to Late Hellenistic philosophy and is believed to be based largely on a Late Republican propagandistic pamphlet.176 The story relates how Romulus divided the population into patricians and plebeians and instituted patronage as a voluntary relationship between a plebeian and a patrician of his choice. Although the relation was entered into voluntarily, the bond nevertheless became hereditary.177 It was the patron’s duty to explain the law to his clients, to assist them in court and generally to look after their interests as a father would his sons. Clients, for their part, had to help their patrons financially in elections, in

172

Note, however, Tabula 8, 5 (= PLINY, N.H. XVIII, 12, CRAWORD (1996), p. 684-685): a person who lets his beasts graze at night on someone else’s land or who steals part of a crop at night will be hanged in honour of Ceres (see LATTE (1950), p. 53-54). See also the tribunes of the plebs, who were sacrosancti, i.e. ‘durch die sacer-Klausel geschützt’ (LATTE (1950), p. 58). A sacratio is mentioned on the Lapis Niger (ILLRP 3). On sacratio see: LATTE (1950), p. 50-52); KASER (1955) I, p. 20, 52-53; CRAWFORD (1996), p. 690; ROULAND (1979), p. 162. 173 DIONYSIUS HAL. II, 10, 3. 174 Cf. FESTUS, p. 318 (ed. Lindsay) (s.v. sacratae leges); MOMMSEN (1864), p. 384, n. 52 assumed the original clause read Diti patri sacer esto. 175 DIONYSIUS HAL. II, 9-11; PLUTARCH, Rom. 13, 1-6. See also CICERO, Rep. II, 16; AMPELIUS 49, 13. See ROULAND (1979), p. 32-45; DRUMMOND (1989a), p. 89-94; DRUMMOND (1989b), p. 159; BRUNT (1988c), p. 400-414. 176 See VON PREMERSTEIN (1937), p. 8-12 ; GABBA (1960); DE MARTINO (1994), p. 344. Note, however, that patrocinium was a profoundly Roman concept and, therefore, the narrative backbone of the story must have been Roman, even if the ideology behind it was Greek; 177 DIONYSIUS HAL. II, 10, 4.

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the exercise of magistracies, and in paying dowries, fines and debts.178 When enemies captured a patron, it was his clients’ duty to pay the ransom.179 Moreover, it was illegal and sacrilegious for client and patron to prosecute each other, to testify or to vote (in court) against one another, or to fight at the side of the other’s enemies. Significantly, only violation of this latter set of rules had legal consequences resulting in sacratio in honour of Zeus Katachthonios (the Roman Dis pater or Pluto).180 The foundation myth was not an isolated story. It lay at the heart of a wider set of opinions about patrons and clients ascribed to the maiores. Among these, we find some clear ideas about where clients stood vis-à-vis their patrons compared to the patrons’ other relations. Cato claimed that clients came just after pupils but well before cognati. The early first century jurist Masurius Sabinus thought clients came after hospites, but before cognati and adfines, and this too seems to have been Caesar’s opinion. All three instances are cited by Aulus Gellius, who prefers to follow Cato’s judgement.181 Dixon noted that the priorities mentioned by Cato and Sabinus present ‘a hierarchy of need as well as a specific relation of trust’.182 What is most interesting in Gellius’s account, however, is that it does not purport to reflect social reality but mos maiorum. Thus Gellius’s quotation of Cato’s oration opens by claiming: ‘What our ancestors held to be most sacred …’.183 Sabinus too refers to a distant past: ‘Among our forefathers it was thus upheld …’.184 Caesar is less explicit, but his claim is rhetorical and perhaps even eccentric. Gellius himself draws his observations ex moribus populi Romani (V,13,2). It would be wrong to think of the mos maiorum as a receptacle of ancient custom. It was rather a living ideology construed around the customs

178

For fines paid by clients and friends see Furius Camillus, SHATZMAN (1975), p. 83; LIVY V, 32, 8; PLUTARCH, Cam. 12, 2; DIONYSIUS HAL. XIII, 5, 1; Scipio Africanus, ROULAND (1979), p. 264265, LIVY XXXVIII, 60, 8-9. 179 Note that this was a very old officium amicitiae attested in the Greek world; cf. MILLETT (1991), p. 59-61; cf. also CICERO, Off. II, 55 (based on Panaetius, see DYCK (1996), p. 440. 180 cf. ROULAND (1979), p. 105-107. 181 GELLIUS V, 13, 1-6; compare also VERGIL, Aen. VI, 608-613 where clients are associated with near kin and slaves (cf. supra p. 55). 182 DIXON (1984), p. 351. 183 GELLIUS V, 13, 4: Quod maiores sanctius habuere ... It is true that Cato claimed that even in his day it was unseemly to testify against a client, but Brunt correctly noted that the quote ends the past tense: patrem primum, postea patronum proximum nomen habuere (BRUNT (1988c), p. 416). 184 GELLIUS V, 13, 5: apud maiores ita obseruatum est ...

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people ascribed to the maiores. Thus the mos maiorum was that which the Roman people believed to have been the salutary custom of their forefathers. Of course there was a tendency towards petrification when written texts began recording the tenets of the mos, but this was only the case from the third century onwards. Although Fabius Pictor may have been the first to record some beliefs of the mos maiorum, it was very likely not until Cato’s Origines that substantial parts of it were written down. Thus the mos maiorum reflects the ideology of the Middle Republic and not historical reality in Archaic Rome.185 This is particularly true of Cato’s and Sabinus’s hierarchy of fides relations, since their approach betrays the taste for classification and rational analysis typical of Greek rhetorical training.186 Of course, this does not imply that the mos maiorum contained no historical truths at all about Archaic Rome, but these became so mingled with later opinions that it is virtually impossible for modern historians to disentangle them. Fustel de Coulanges, Mommsen and Von Premerstein consider the foundation myth and the old beliefs of the mos maiorum to be the reflection of an archaic reality when clients were half-free dependants of the patrician gentes, in a legally comparable position to that of freedmen. Clientes would essentially have been outsiders, attached to the patrician gentes, who were sole owners of the land worked by them. Both this approach to the myth and to the mos maiorum and the conclusions drawn from it have been largely accepted by scholars. Drummond and Brunt on the other hand doubt that there ever was such a class of half-free dependants in Rome. There is no trace of such a class in the XII Tables, which mention only free citizens and slaves.187 The historical reality of clientage in the Late Republic was in any case very different. Most hierarchically ordered lists of social relationships and the duties they entail do not mention patrons or clients, although they

185

cf. KLOFT (1970), p. 35-37, 44-46 about the virtue of liberalitas ascribed to the mos maiorum. DIXON (1984), p. 351-352. See ibid. for the anachronistal attribution to the maiores of the concept of infirmitas sexus. 187 DRUMMOND (1989a); DRUMMOND (1989b), p. 159-163; BRUNT (1988c), p. 407-409. See also ROULAND (1979), p. 64-67. 186

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invariably mention amicitia.188 If we analyse the use of the term cliens we find two clusters. One associates clients with slaves and freedmen, the other with amici and hospites.189 However, the foundation myth of patronage draws our attention to another aspect of patronage systems observed by Silverman. Patronage is not just an ‘etic phenomenon’, an objective form of social exchange that can be observed and studied by an unbiased outsider. Patronage is also an ‘emic phenomenon’, a mental framework in terms of which people explain and justify the world in which they live.190 Whatever its historical roots, by the Late Republic the foundation myth of Roman patronage was essentially the narrative embodiment of a mental reference map. Few will accept Dionysius’s claim that social harmony followed the institution of patronage by Romulus as a valid piece of information about Romulan Rome.191 But the assertion does inform us about how the Romulan code of patronage was appreciated in Dionysius’s own time: as a means of establishing social harmony, as an explanation for disharmony in later times, and hence as a justification for social action aimed at restoring or safeguarding harmony. The same argument can be made regarding the mos maiorum. The tenets about patrons and clients ascribed to the maiores were part of a system of beliefs about what was right or wrong, serving to explain and to justify perceived and planned action.

188

cf. CICERO, Off. I, 50-58; Fin. V, 65-67; Am. 19; Part. or. 80; HORACE, Ars. Poet. 312-313; SENECA, Epist. 95, 37; cf. DYCK (1996), p. 165-182; SANSEN (1975), p. 92-93; BRUNT (1988c), p. 416. 189 associated with amici: CICERO, Sen. 32; Fam. V, 8, 5; ASCONIUS, Tog. Can. 74 (ed. Clark); Rhet. Her. I, 8); VELLEIUS PATERCULUS II, 7, 3; Dig. XXXIII, 9, 3, 5 (Ulpianus); associated with freedmen and slaves: CICERO, Inu. I, 109; Par. Stoic. 6, 46; Q. CICERO, Comm. Pet. 17; Dig. VII, 8, 3 (Paulus); IX, 3, 5, 1 (Ulpianus); XLVII, 2, 90 (Paulus); between the two: CICERO, Att. I, 20, 7; CICERO, Q. fr. I, 2, 16. 190 SILVERMAN (1977). Note that the distinction between ‘emics’ and ‘etics’ is merely analytical. An ‘etic’ analysis studies social phenomena from the viewpoint of an outside observer using his own conceptual tools, an ‘emic’ analysis studies cognitive patterns of meaning ascribed to social action by social actors. Note also that Silverman uses the term ‘myth’ in a very broad sense to indicate any set of beliefs serving as a cognitive reference map. For the idea of culture as a set of cognitive reference maps see also GEERTZ (1973). For patronage as a ‘reference map’ note the ideological use of patronage to describe Rome’s position vis-à-vis its socii (cf. CICERO, Q.fr. I, 1, 33; Off. II, 26; BRAUND (1989), BADIAN (1958); BADIAN (1968); RICH (1989)) and the role of patronage in imperial propaganda (CORBIER (1977); LEVI (1984); VEYNE (1976), p. 483-487, 535-536. Compare also KETTERING (1986), p. 22 distinguishing between the rhetoric and reality of patron-client relations. 191 Contra see ROSAFIO (1993), p. 170.

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When we accept this interpretation of the foundation myth and of the mos maiorum the value of both as sources of information about patronage in Archaic Rome largely disappears.192 There is no way of knowing how much (if anything) of the story is historically correct. The whole body of evidence about patronage in Archaic Rome, construed by Mommsen and Von Premerstein collapses. We no longer need to look for remnants of legally enforceable rights and duties. The exemption from the obligation to testify is nothing more than the recognition of private moral obligations. The article in the XII Tables – if authentic – is directed against a patron defrauding his client in court (for example by conniving with the prosecution). However, the loss of relevance of our sources for archaic clientage is compensated by their increased importance for understanding patronage in historical times. The very existence of a ‘myth’ of patronage and clientage distinguished patrocinium from amicitia. Amicitia had no comparable myth. Ideologically at least, clients were nearer to kin than amici. The exemption for patrons from testifying against clients was not given to even the closest of friends. Ideologically there was no honourable way for a client or a patron to end their relationship, whereas friendship could be broken off.193 From an emic point of view amicitia was framed solely in terms of the moral matrix treated in our previous chapter that applied both to relations between equal and unequal partners, comprising symmetric and asymmetric reciprocity respectively. The matrix itself consisted of value judgements, each of which had in itself a much wider relevance, exceeding the bounds of friendship or patronage. Patronage on the other hand emerges as a culturally distinct phenomenon in Roman society not because there were any technical requirements about how such relations had to be formed and maintained, but because there existed an ideological mould ascribed to the maiores classifying relations based on reciprocity and loyalty between unequal partners as patron client relations. This classification of social relations in terms of a traditional partly mythological ideal image was often ambiguous. There was, of course, little room for argument about how a reciprocity relation had to be classified

192 193

for a similar argument see BRUNT (1988c), p. 400-414. Although, significantly, the myth did not say that a patron-client relationship could not be ended!

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when the social distance between both partners was considerable. There could be no question about how to classify , for example, the relation between Mena, a relatively poor auctioneer (praeco), and the nobilis L. Marcius Philippus (cens. 86), even though Philippus may have occasionally addressed Mena affectionately as amice mi.194 However, classifying borderline cases (as , for example, that between municipal notables and senators) must inevitably have carried with it an element of subjectivity. This is why the rich and powerful refused to acknowledge that they were beneficio obligati.195 Doing so meant acknowledging that the framework of patronage applied to them, which in turn implied acknowledging their social inferiority. Conversely addressing someone as ‘patrone mi’ implied acknowledging one’s inferiority and the other’s social superiority. Although the same resources were exchanged in amicitia as in patron-client relations,196 they took on a different guise. Thus amici were offered resources (opes) and help (adiumentum), whereas clientes were offered protection (praesidium) in exchange for gratia and deference.197 Patrons benefited from the protection they offered their clients because it enhanced their social position. This enhancement was not conceived of as a voluntary gift of the client to his patron, but as the consequence of his acknowledging his patron’s superiority. Ultimately, it was the display of the patron’s liberalitas / benignitas, testified to by the salutationes and adsectationes performed by his clients, that enhanced his position. However, although as a cultural ‘emic’ phenomenon Roman patronage was not a variant of amicitia, as a social relationship Roman patronage did rest on the same ethical framework as amicitia: benignitas, gratia, fides, beneuolentia, existimatio. What ultimately determined whether one qualified as a client was the inability to return favours of equal importance as the ones received. A client was by definition unable to solve his debt of honour to his patron. And so as a social ‘etic’ phenomenon Roman patronage can and should be described as a lop-sided amicitia. In the rest of this book, therefore, I will treat patron-client relations as amicitia relations between unequal partners.

194 195

See HORACE, Epist. I, 7, 53-98. CICERO, Off. II, 69 (cf. DYCK (1996), p. 457-458); SENECA, Ben. II, 23; cf. CAESAR, B.C. III, 18,

4. 196 197

FREYBURGER (1986), p. 181. CICERO, De orat. I, 184; Inu. I, 109.

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THE ANCIENT AUTHORS ON THE USE OF FRIENDS.

Aristotle claimed that those who were rich needed friends in order to be able to use their wealth meaningfully.198 Atticus acted accordingly. He gave substantial sums of money to C. Marius the younger in 82, to Cicero in 58 and to Brutus in 44.199 Pliny was confident that he could rely at all times on his mother in law’s money.200 Cicero was not enthusiastic about donations of money, but he admitted that there were occasions when gifts of money (largitiones) had to be made.201 However, a distinction had to be made between gifts that were a token of generosity (liberalitas), and gifts that bespoke prodigality. The difference did not lie in the sums of money involved, but in the presence or absence of personal relations. Gifts to the people, like public banquets, distributions, games and the like, were prodigal, whereas all forms of pecuniary aid to friends were liberalis.202 Columella mentions five profitable but dishonourable ways to enlarge and maintain a patrimony: army service, trade by sea, usury, the courts, and patronage (salutatio mercennaria).203 Seneca also places patronage (‘the ungrateful cultivation of the mighty through voluntary servitude’ – ingratus superiorum cultus uoluntaria seruitute) next to army service and trade by land and sea.204 Petronius, for example, compares the uilis adulator to traders and soldiers.205 The image of the ‘mercenary client’ (cliens mercennarius) is closely related to the literary type of the parasite. The line between friends and flatterers was equally thin, as appears from Lucian’s essay

198

cf. ARISTOTLE, Eth. Nic. VIII, 1, 1 (1155a8). cf. NEPOS, Att. 2, 2 (Marius), NEPOS, Att. 4, 4; CICERO, Att. III, 20.2; IV, 1, 3 (Cicero); NEPOS, Att. 8 (Brutus). 200 PLINY, Epist. III, 19, 8: cuius arca non secus ac mea utor'; cf. SHERWIN-WHITE (1966), p. 259. 201 CICERO, Off. II, 54. 202 CICERO, Off. II, 55; cf. DYCK (1996), p. 436-453. 203 COLUMELLA, I, praef. 7-10. 204 SENECA, Dial. X, 2, 1 (Breu. Vit.). 205 PETRONIUS 83, 10. See now DAMON (1997) on the relation parasite – client. 199

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‘On how to distinguish a friend from a flatterer’.206 At least for some, amicitia was a lucrative bond. It shouldn’t surprise us, therefore, that friendship could be construed as an important asset, in which one ought to invest. The term used by Cicero is ‘to invest favours’.207 Nearly four centuries earlier, Socrates in Xenophon’s Memorabilia reckoned ‘friends’ among the most important assets of a man.208 Wealth and friends are mentioned in one breath in Plato’s Gorgias.209 Seneca asserts that we possess our riches only temporarily. We are but procurators of our own possessions. Only in one way can we be sure of our wealth: ‘by giving gifts’ (dona danda).210 Martial expressed the same idea when he wrote ‘what is given to friends is beyond the reach of Fortune. Only the wealth you will have given will you have forever.’211 One of Publilius Syrus’s Senentiae reads ‘nothing is a better bargain than a firm friend’.212 Cicero asserts in his Pro Plancio that a man’s possessions and wealth (opes) could only be kept intact with the aid of many friends.213 The assertion echoes Aristotle’s claim that a rich man needed friends to guard and to keep his wealth.214 Amici owed each other benignitas, gratia, fides and amor, and these values generated obligations (officia) that were almost by nature vague. Amicitia was not a formal contractual relationship and although its mutual obligations were strong and essential to the relationship, they were never specified in advance. Nevertheless it is possible to distinguish different categories of reciprocal services that friends expected from each other.

206

See also KONSTAN (1997), p. 98-103. CICERO, Off. II, 69: collocare beneficia. See also SENECA, Dial. VII, 24, 2 (Vit. Beat.); CICERO, Off. II, 71; DYCK (1996), p. 456-457; ARISTOTLE, Eth. Nic. VIII, 13, 7 (1162b34). 208 XENOPHON, Mem. II, 3; for a commentary see MILLETT (1991), p. 116-117, contra see KONSTAN (1997), p. 79-80; for friends as social assets see also KOOIJMANS (1992), p. 52. 209 PLATO, Gorg. 479 c. 210 SENECA, Ben. VI, 3, 3. See also SENECA, Ben. VI, 3, 1 where the poet Rabirius makes the dying Antony exclaim hoc habeo quodcumque dedi. Cf MICHEL (1962), p. 522: ‘Faire le bien, obliger les autres, c'est le moyen le plus sûr de vous prémunir contre les vicissitudes de la fortune.’. 211 MARTIAL IV, 42: Extra fortunam est, quidquid donatur amicis: / Quas dederis, solas semper habebis opes. For the same idea see MENANDER, Dysc. 805-811; CICERO, Am. 55. 212 PUBLILIUS SYRUS, Sent. A54 (ed. Meyer): amico firmo nihil emi melius potest. See also Sent. H6 (ed. Meyer): Habet in aduersis auxilia, qui in secundis commodat. 213 CICERO, Planc. 81. 214 ARISTOTLE, Eth. Nic. VIII, 1, 1 (1155a6-11). 207

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Among these substantial and economically important resources played a significant part. Seneca urges us to help friends with different kinds of resources: ‘Help some materially, some with credit, some with influence, some with council, some with wholesome precepts.’215 A comparable list is found in a letter of recommendation, in which Cicero describes his relation with Curtius Mithres: ‘Both his services and credit, and his house and things, I use as if they were mine.’216 Martial (indirectly) sums up what could be expected from friends (and clients) in the way of material aid: ‘Marius does not invite you to diner, nor does he send presents / He doesn’t stand surety, nor is he prepared to lend money, but neither does he have any’.217 Following Seneca’s example, Michel subdivides beneficia/officia amicitiae into the following categories: re, fide, opera, gratia and consilio. To these he adds the numerous ‘obligations mondaines’: salutationes, adsectationes, attendance at lectures, family ceremonies (such as conferment of the toga uirilis, betrothals, wedding, funerals and so forth), playing the part of witness at the sealing of a will or informal manumissions of slaves, and so on. Typical examples of beneficia re in Michel’s classification are hospitality (hospitium), loans (mutua, commodata), gifts (donationes) and ‘dispositions testamentaires’. Beneficia fide are all forms of standing surety (sponsio, fidepromissio, fideiussio and mandatum pecuniae credendae). Free and voluntary agency with or without a mandate (mandatum and negotiorum gestio respectively) constitute beneficia opera.218 Michel’s classification offers an excellent survey of the wide spectrum of possibilities offered by the beneficia amicitiae, although it can by no means be considered exhaustive or exclusive. Societas, for example, might very well be placed among the officia opera. Even though socii shared in profit derived from their actions and, therefore, did not offer their services for free, which consequently cannot be considered

215

SENECA, Ben. I, 2, 4: Alium re, alium fide, alium gratia, alium consilio, alium praeceptis salubribus adiuua'. Note that Seneca also distinguishes different degrees of beneficia: necessaria, utilia and iucunda (Ben. I, 11, 1-5). See also TERENCE, Heaut. 86: aut consolando aut consilio aut re iuuero. 216 CICERO, Fam. XIII, 69, 1: huius cum opera et fide, tum domo et re uti, tamquam mea. 217 MARTIAL X, 19: nec uocat ad cenam Marius, nec munera mittit, / Nec spondet, nec uolt credere, sed nec habet. 218 MICHEL (1962), p. 534-552. See also KIRSCHENBAUM (1987), p. 173-177.

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beneficia, most societates were nevertheless formed between amici, kinsmen or in-laws.219 Tutela testamentaria should certainly be reckoned among the officia opera of the tutor.220 We should also be aware that the different categories overlap. Thus we find Atticus as Cicero’s procurator (in itself a beneficium fide covered by mandatum and negotiorum gestio) helping Cicero financially (beneficium re), using his influence on Cicero’s behalf (beneficium gratia) and advising him in important decisions (beneficium consilio). A number of texts explicitly state that it was an officium amicitiae to enrich one’s friends. Cicero’s description of a homo liberalis leaves no doubt about it: ‘Liberal are those who with their own means redeem prisoners from robbers, or take over the debts of their friends, or help (them) in marrying their daughters, or assist them in making a profit or in enlarging their possessions.’221 Cicero’s defence of Rabirius Postumus – an important publicanus and an international financier – is largely built around this image of the homo liberalis, applied to Postumus and his father. Rabirius was deeply involved in business activities, but ‘he never ceased to enrich his friends, to fulfil their commissions, to give them shares (sc. in lucrative tax contracts), to enlarge their possessions and to sustain their credit’.222 In this he followed his father’s example, ‘whose fortitude in doing business would not have been so approved by people, were it not that in this his benignitas was incredible, so that it seemed that in increasing his fortune he was not seeking to procure spoil for his avarice but to obtain an instrument for goodness.’223 Elsewhere in the De officiis

219

On societas and amicitia cf. infra chapter III,2. On tutela testamentaria cf. infra chapter. 221 CICERO, Off. II, 55: liberales autem (sunt), qui suis facultatibus aut captos a praedonibus redimunt, aut aes alienum suscipiunt amicorum aut in filiarum collocatione adiuuant aut opitulantur uel in re quaerenda uel augenda. 222 CICERO, Rab. Post. 4: nec interea locupletare amicos umquam suos destitit, mittere in negotium, dare partis, augere , fide sustentare. 223 CICERO, Rab. Post. 3: cuius in negotiis gerendis magnitudinem animi non tam homines probassent, nisi in eodem benignitas incredibilis fuisset, ut in augenda re non auaritiae praedam, sed instrumentum bonitati quaerere uideretur. See also Rab. Post. 45: tune ille in omnis tuos liberalis, cuius multos bonitas locupletauit, qui nihil profudisti, nihil ullam in libidinem contulisti? The idea of liberalitas legitimising the occupations of a businessman links the cultural ideal types of the businessman (negotiator, mercator, faenerator) and the notable (homo liberalis, bonus uir) fostered by the Roman elite. A businessman is driven by auaritia. Auaritia is opposed to liberalitas, which is a typical feature of the bonus uir. Therefore, a bonus uir can have business interests (negotia habere), because this is an factual state of things, but cannot be a negotiator because this is a socially identifying concept implying auaritia. See VERBOVEN (1993a), p. 87-95. 220

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Cicero asserts that beneuolentia is a motive to enrich others and to enhance their prestige and social position.224 Clearly, the ancient Greeks and Romans were acutely aware of the substantial benefits amicitia brought with it and of the possibilities amicitia offered in the field of the organisation of economic (and other) activities.

224

CICERO, Off. II, 21.

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[leeg blad]

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Part II. Amicitia and the allocation of scarce resources

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This second part of this book is devoted to the influence of amicitia on the allocation of economically important resources. Most scholars who have worked on Roman ‘friendship’ and patronage will feel on familiar terrain in the following chapters, which focus on gifts, loans and inheritances. All three have long been acknowledged as ‘standard’ obligations in Roman friendship and patronage. Nevertheless, I hope to contribute some new points. By relocating the often cited sources in their original context – both textual and social – I hope to shed a different light on some issues that in my view have been too often neglected. By reconstructing the cultural, social, political and economic landscape within which amicitia and patronage operated, we can sharpen our perspective on their overall importance as alternative mechanisms for the allocation of scarce resources and as influences on the market as the ‘classical’ economic allocation system.

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GIFTS AND PRESENTS.

Instrumental friendship and patronage in the Roman world – as in other cultures – were based on reciprocity or gift-exchange.225 In the following chapter I will survey the evidence for gifts in the context of patronage and amicitia to establish the importance of ‘gift-exchange’ as an allocation system for goods and services. I will try to establish the conditions under which the system operated and to show the strategic use of gifts to achieve previously defined goals. The importance of gift-exchange in Greek and Roman culture is widely acknowledged.226 According to Finley and his followers, the dynamics of giftexchange generated a circulation of goods and services that decisively determined the allocation of basic resources until the rise of the polis and that continued to be important throughout Antiquity.227 The ethos of the gift in ancient culture was be no means restricted to amicitia or family-relations. It was operative on different levels in very different social contexts: euergetism, corruption228, charity, and so forth. It is important to keep this in mind. A context of patronage or amicitia was no by means required for gifts to be made and for returns to be expected. Compared to the Early Empire, few substantial gifts (real, imagined or hoped for) are attested for the Late Republic. Theoretically, this could indicate a change in morals or an increased standard of living, but I doubt we may interpret the data in this way. For the Early Empire, most instances of substantial gifts come from Martial and Pliny. If we exclude these two single sources, the difference with the data from the Late Republic largely disappears. The fact that Martial is an unusually rich source of information on substantial gifts has little to do with social reality

225 On reciprocity in general see MAUSS (1923-1924); SAHLINS (1972), p. 149-183, 191-196; FOSTER (1977); GOULDNER (1977); MACHEREL (1983). 226 Cf. supra p. 37-39. 227 cf. FINLEY (1974); CARNEY (1973), p. 59-66; MILLETT (1991), p. 24-52; Finley’s ideas were strongly influenced by Polanyi, see POLANYI (1957a); POLANY (1957b). 228 Note that the line between gifts and bribes was not always clear. See HERMAN (1987), p. 75-81 on the gradual emergence of the concept of bribery.

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in his day and age; it merely reflects his favourite literary themes. Pliny’s Letters, on the other hand, paint a model picture of the ideal senator, who naturally indulged in the most splendid kind of generosity. Cloud found that in the first book of Juvenal’s Satires, gifts between patrons and clients are rarely mentioned and the author deplores the disappearance of the kind of generosity of patrons towards clients that was common in the days of Nero and Augustus. ‘One might suppose … that the practice of bestowing goods on clients had ceased by the time Juvenal came to write Book I, but the evidence … shows that it still continued.’229 The kind of gifts and donations attested in Pliny’s letters differs considerably from those attested in Martial. Pliny mainly mentions gifts of real estate or money. Martial mentions a much larger spectrum of various gifts, ranging from foodstuffs and kitchenware over costly garments, precious jewels and silverware to money and real estate. Since the different categories of gifts mentioned by Martial are attested elsewhere, we may assume that they are representative of a reality in which just about everything could be turned into a gift. Pliny seems to be interested only in donations that confirmed and increased the social status of the giver, in this case his own status as a senator. This may betray part of Pliny’s intentions in publishing his letters, viz. to portray himself as a role model of the ideal senator.230 The difference between Pliny’s and Cicero’s letters is remarkable. There is no gift of Cicero on record that would compare to, for example, the 300,000 sesterces that Pliny donated to Romatius Firmus, or to the 100,000 sesterces he donated to Calvina. Cicero’s generosity seems to have been limited to loans and sureties. Both men were very different in character and in financial position. Cicero shows himself verbally very pugnacious in both his speeches and his letters. He could be very sarcastic and crude towards opponents. Although he knew when to be tactful, he was also temperamental and easily offended, although just as easily pleased.231 Pliny’s letters are

229

CLOUD (1989), p. 210. On gifts in Martial and Pliny cf. infra and see ROULAND (1979), p. 517-519, 527-528; MICHEL (1962), p. 537-538. 231 See PLUTARCH, Cic. 7, 25-28. See also MACMULLEN (1986) for the thin line between aggression and dignitas. For examples of tactfulness see Cicero’s letters to App. Claudius, whom he detested and whose (mal)administration of Cilicia shocked him (CICERO, Fam. III, 1-13; Att. V, 15, 2; VI, 1, 2-3; 2, 8; 3, 5). For his being easily offended see his relation with Atticus’s freedman Dionysius (TREGGIARI (1969), p. 119-121, 191; PEREZ (1981), p. 193-194). 230

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totally different in tone. Although the author delights in gossip and backbiting, he is rarely openly verbally aggressive. Pliny remains composed and amiable whatever happens. Of course, the impression may be false and intentionally created by an author who, contrary to Cicero, carefully selected and perhaps reworked his letters before publication. In any case, Pliny as a self created ‘literary character’ differs completely from Cicero as we know him from his speeches and letters. Thus Cicero condemns large donations of money (largitiones) in his De Officiis, whereas Pliny demonstrably and ostentatiously makes them hismelf in his publication of letters.232 However, the two men’s financial position was very different as well. Cicero was chronically short of money. His patrimony, virtually wholly self-earned233, was heavily affected a first time when he was forced into exile in 58, a second time when he chose Pompey’s side in 49. Although Pliny liked to talk about his paupertas, he never experienced any serious financial difficulties. He inherited a large patrimony from his uncle and adoptive father Pliny the Elder and, although threatened by Domitian, was never struck by the calamities that befell Cicero. Moreover, Cicero had a daughter to whom he had to give a dowry and a son whose stay in Athens cost him 80,000 sesterces each year in 45 and 44.234 In other words, Cicero simply could not afford Pliny’s largesse. Finally, Cicero’s letters are not comparable to Pliny’s because (apart from a few minor exceptions) Cicero never intended them to be published and never reworked them. Numerous passages are deliberately coded to prevent outsiders from understanding them.235 Carcopino even thought the letters were published to discredit him.236 Cicero was no doubt a vain man, but status enhancement was not the object of his private letters, whereas this motivation is clearly present in Pliny’s letters.237

232

Cf. also DIXON (1993), p. 453. Cf. PLUTARCH, Cic. 8, 3, substantiated by the well known composition of his patrimony consisting from personally bought estates from the mid sixties onwards, see SHATZMAN (1975), p. 403-407; CARCOPINO (1947) I, p. 73-230; MOHLER (1932); SCHMIDT (1899); FRIER (1978); LICHTENBERGER (1895). 234 For Tullia’s dowry see DIXON (1986), p. 102-111; COLLINS (1951-1952); TREGGIARI (1991), p. 347, 352-353, 360; for the cost of young Marcus’s stay in Athens see CICERO, Att. XII, 32, 2; XV, 17, 1; 20, 4; XVI, 1, 5 235 See e.g. CICERO, Att. IV, 2, 7; VI, 4, 3. 236 CARCOPINO (1947) II, p. 217-462; contra see SHACKLETON BAILEY (1965-1970) I, p. 6173. 237 Contrary to the few open letters that were intended for a wider audience. See e.g. CICERO, Q. fr. I, 1; maybe also Fam. I, 9; V, 12. 233

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Nothing indicates, therefore, that notables in Cicero’s time were less generous than under the Early Empire. The behavioural pattern concerning gift giving that we find in Pliny’s day is essentially the same as the one we find in the Late Republic. Status of gifts: loans and bribery. Dionysius of Halicarnassus remarked that – according to the foundation myth of patronage –the support that was traditionally expected from clients in paying dowries, ransoms and fines had to consist of donations rather than loans. This remark is interesting because it indicates the close connection between gifts and free loans.238 It is often impossible to determine whether a transfer of money or goods was intended as a gift or as a loan. Clearly, some gifts were intended as unconditional and unenforceable loans. The money (or other object) was given unconditionally, but under the assumption that the recipient would repay when he was able to. Conversely, a loan could be transformed into a gift post factum.239 When he returned from exile Cicero tried to repay the support that he had received from his brother with help from his friends.240 Presumably, Tullius Montanus, whom Cicero helped to pay his debt to the state, would have eventually repaid the money.241 Gifts among the elite where often politically motivated and the difference between liberalitas and corruption was sometimes slight. When it looked as if Clodius would be condemned for sacrilege in the Bona Dea scandal, Crassus is thought to have summoned the judges and bought them with promises, sureties and gifts.242 Clearly, in many cases, the object was sheer bribery and neither the existence nor the initiation of a personal relation was in any way relevant. Obviously, such gifts cannot be considered beneficia and so strictly speaking they do not fall within the scope of this book.243

238

DIONYSIUS HAL. II, 10, 2. The term donatio was applied to such cases. See PLINY, Epist. II, 14, 1-2; MARTIAL VI, 30; VIII, 37; IX, 102. See also SALLER (1982), p. 122; SALLER (1983), p. 253; DIXON (1993), p. 461463; MILLETT (1991), p. 27-30, 121-122. The ambiguity is also found in other cultures: cf. e.g. GREGORY (1975), p. 79. 240 CICERO, Att. IV, 3, 6. 241 CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24.1. 242 CICERO, Att. I, 16, 5. See WARD (1977), p. 205-209. Against the identification of Crassus see TATUM (1999), p. 82-85. On the Bona Dea scandal see ibid. 62-86; BENNER (1987), p. 38-40. 243 Cf. MILLETT (1991), p. 86. See e.g. ASCONIUS, Corn. 57-58 (ed. Clark). 239

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However, the dividing line is not always clear cut; gifts to politicians may be intended to buy and bind interesting allies. Thus Caesar’s gifts to Marc Antony and C. Scribonius Curio, for example, seem to have been intended not just to buy support from them, but also as a means to secure a strategic alliance (amicitia) that could serve multiple purposes, and so these gifts do belong in the category of beneficia, even though the actor in question was obviously manipulating the norms of Roman friendship. 1.1 Gifts in Roman law. Michel distinguished two major periods in the legal history of donations. The first starts at the end of the third century BCE with the lex Cincia, which introduced the concept of the donatio in Roman law, and ends with Constantine the Great. The second starts with Constantine and continues today.244 Donatio in classical Roman law was not a contract or an autonomous institution of its own. The concept was legally defined only as any act that gave rise to the exceptio foreseen in the lex Cincia, by which a stipulated transfer of goods could be blocked. Donatio rested on the manifest will of transacting partners to gratify one at the expense of the other and referred to acts that were normally remunerative.245 Because a donatio was not a legally defined act it could not give rise to legally enforceable obligations and could, therefore, not be considered a ‘contract’. A Constitutio of Constantine the Great (a. 316) made a written act compulsory in order for a donation to be valid and, therefore, irrevocable. It fundamentally changed the legal framework of donations. Theodosius II limited this requirement to gifts of more than 200 solidi. Justinian raised this limit to 500 solidi and also defined valid excuses for revoking gifts and instituted obligations following the acceptance of a gift.246 The legal rules concerning gifts in classical Roman law, therefore, were determined by the lex Cincia de donis et muneribus, dating from 204.247 The law prohibited all gifts exceeding a certain (unknown) amount, with

244

MICHEL (1962), p. 290-301. cf. MICHEL (1962), p. 290: ‘La Donatio classique .... consiste dans la volonté déclarée des parties de gratifier l'une d'elles aux dépens de l'autre’. 246 Cf. Fr. Vat. 249; Cod. Theod. III, 5, 13; Cod. Iust. VIII, 53, 36, 3; 55, 8; 10; 35; JUSTINIAN, Inst. 2, 7. 247 The lex Cincia was not the first law regulating gifts. A few years earlier a tribune of the plebs had passed the lex Publicia de cereis (209) stipulating that clients should give only wax candles to their patroni at the Saturnalia. See MACROBIUS, I, 7, 33. ROULAND (1979), p. 243. 245

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the exception of gifts between close family, husbands and wives (later revoked), fiancées and serui quique pro seruis seruitutem seruierunt (possibly slaves with a peculium and dependent freedmen). These three categories were personae exceptae. Gifts as payment for patronal assistance in court were explicitly mentioned and banned.248 The law was imperfecta, which meant that it neither instituted fines or punishments nor made illegal gifts invalid. The only legal effect of the law was that it allowed an exceptio, making stipulated gifts and transfer of property (traditio) after formal mancipatio or in iure cessio unenforceable. The exceptio was important because it ensured that patrons and ‘friends’ could never enforce payment for their free services (beneficia), for example, for their assistance in court.249 The tenacious habit of court-patroni to expect substantial ‘gifts’ in exchange for their services inspired several renewals and reinforcements of the lex Cincia in the course of time. Patrons could easily circumvent the law by demanding ‘gifts’ in advance.250 The senate eventually took action, probably during the reign of Augustus or in the final years of the Republic, by issuing a decision stipulating that litigating parties had to swear that they had not given anything to their patroni as payment for their services in court.251 Augustus further enforced this decree by instituting a fine, equal to four times the amount received, for senators who had accepted payment for their services.252 However, this enactment as well proved to be largely without practical effects. Under Claudius, the senate held a debate on the subject. The conclusion was that ‘gifts’ up to 10,000 sesterces would henceforth be allowed, whereas those who

248

See STEIN (1985); CASAVOLA (1960); CRAWFORD (1996), p.741-744; DUMONT (1987), p. 114-122; BERGER (1953), p. 549; LEONHARD (1905); ROULAND (1979), p. 244-246; MICHEL (1962), p. 290-292; DAVID (1992), p. 121-145; SHATZMAN (1975), p. 70-73; ROTONDI (1962), p. 261-263. For the difficult problem of the personae exceptae see CASAVOLA (1960), p. 53-114; MOMMSEN (1887) III, p. 427-429; FABRE (1981), p. 286-289); DUMONT (1987), p. 115. Not coincidentally the inner family circle is included, compare BETTINI (1990). 249 See MICHEL (1962), p. 290-292 for the importance of the exceptio. See also VAN OVEN (1948), p. 312. It was the first serious limitation put on the formalist Roman legal system. See also DAVID (1992), p. 128-129. 250 Cf. TACITUS, Ann. XI, 6; PLINY, Epist. V, 4. See SHERWIN-WHITE (1966), p. 320. 251 PLINY, Epist. V, 9, 4. See SHERWIN-WHITE (1966), p. 337. 252 DIO LIV, 18 (17 BCE). Tacitus is undoubtedly referring to this fine in Ann 13, 42, where he writes about the poena Cinciae legis.

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accepted more would become liable to prosecution for extortion under the lex Iulia de repetundis.253 Nevertheless, the practice continued to be morally condemned and the exceptio instituted by the lex Cincia was not abolished.254 Litigating parties still had to swear that they had neither given nor sworn to give anything to their patrons in court, although payments up to the Claudian maximum of 10,000 sesterces were tolerated. In 105, the praetor Licinius Nepos issued an edict declaring that he would henceforth follow the terms of the senatorial decree enforcing the oath in question to the letter. Nepos’s edict caused considerable commotion and unease among the presidents of the other courts. The affair seems to have ended with an intervention of the emperor confirming the edict and thereby effectively revoking the Claudian concession.255 Surprisingly, gifts to friends, patrons or clients outside the context of the courts never seem to have posed any legal problem, despite the fact that they were formally against the lex Cincia. We have numerous examples of substantial gifts between nonkin, friends, patrons and clients where there is no indication whatsoever that the lex Cincia was relevant. Tacitus wholly ignores the implications of the Cincian law for such gifts and simply asserts that the law was specifically directed against the insolence of orators (in court).256 Scholars have paid little attention to the apparent contradiction between the general ban on gifts in the lex Cincia and the pervasiveness of gift-exchange in the Roman world. The law is thought to have applied only to court patrons or to be an irrelevant remnant of a lost world.257 In my view, however, the significance of the Cincian law for the practice of gift-exchange should not be underestimated. Because the Cincian law was imperfecta, the only actual consequence of the law was that it ensured that gifts could not be legally enforced. As such the law was perfectly in line with the ideal voluntary nature of beneficia. A true beneficium derived from genuine goodwill and not from compulsion. Conversely, a beneficium generated gratia but it could never give rise to legally enforceable obligations. Thus the traditional beneficium

253

TACITUS, Ann. XI, 6-7. Cf. MARTIAL I, 98. 255 PLINY, Epist. V, 9; 13, 9. See SHERWIN-WHITE (1966), p .335-337, 342-343. The exact terms of the imperial decision are not known, but PLINY describes the intervention as prohiberi publice of even the slightest payment. 256 TACITUS, Ann. XV, 20. 257 See e.g. BÜRGE (1980), p. 139. 254

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of a defence in court could never create an obligation of payment. The fact that the lex Cincia allowed gifts up to an unknown maximum amount and aimed, therefore, only at excessive gifts, was also in accordance with generally accepted ideas, not only because excessive gifts to outsiders deprived next of kin and heirs of their due, 258 but also because they destroyed the basis for future generosity.259 The lex Cincia, therefore, was in no way opposed to the traditional practices of gift giving, which it rather upheld than hindered. In reality, the law firmly upheld the unenforceability of liberalitas. By the Augustan era, Roman law explicitly distinguished between ‘valid’ donations and ‘invalid’ donations. Affection, both honourable – as towards ‘well deserving friends’ (amici bene merentes) – and dishonourable – as towards prostitutes – was explicitly recognised as a valid cause by the time of Sabinus.260 Labeo, however, repeated the Cincian ban on gifts in exchange for inherently free services. Such gifts were ‘without (just) cause’ and were in fact ‘fees for officia’. Labeo’s justification for the rule, and in a way his measuring rod to distinguish between legitimate and illegitimate gifts, was that a person could not be liberalis against his will.261 The jurists’ train of thought is interesting because it shows that the Cincian law was not used by jurists to oppose gift-exchange as such, but to uphold the voluntary nature of beneficia. 1.2 Size and object of donations The vast majority of gifts in the Ancient World, just as today, symbolised relations of trust and solidarity and had little if any commercial value. The traditional gifts sent by clients to their patrons at the occasion of the Saturnalia were candles, whereas small puppets in fired clay were given to friends, clients and patrons on the sigillaria – the last day of the Saturnalia.262 Small symbolic gifts express gratitude and thus invoke the

258

CICERO, Off. I, 44. CICERO, Off. II, 54. 260 Dig. IXL, 5, 5 (Ulpianus in his commentary on Sabinus): affectionis gratia neque honestae neque inhonestae donationes sunt prohibitae, honestae erga bene merentes amicos uel necessarios, inhonestae circa meretrices. 261 Dig. IXL, 5, 19, 1-2 (Ulpianus): Labeo scribit extra causam donationum esse talium officiorum mercedes ut puta: si tibi adfuero, si satis pro te dedero, si qualibet in re opera uel gratia mea usus fueris. Non potest liberalitas nolenti adquiri. 262 Cf. NILSON (1921), col. 204-205; VARRO, L.L. 64; SHA, Car. 1, 8; Aur. 50, 2. See also supra p. 75 on the lex Publicia. 259

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norm of reciprocity (gratia) and the acknowledgement of the obligation to reciprocate on which the recipient of the gift can rely. At the same time, they express the wish to continue an existing affectionate or instrumental relationship or symbolise the appreciation and/or affection felt by one for another.263 The little present that Atticus gave to Cicero’s daughter Tullia when she was still a child belongs in this category.264 To get an idea of the wide range of possible small presents we can turn to Martial: earthenware given by Martial himself to Arruntius Stella,265 nuts given by clients to their patrons at New Year266, a hare given to Restitutus by a hunter267, olives from Picenum, preserved figs, Lucanian sausages, Faliscan entrails, cheap Syrian wine, a pound of flour and beans given to Sabellus.268 Martial excuses himself to Quintianus because he sent only a poem on the occasion of the Saturnalia: only small gifts are truly disinterested, who gives a lot, expects a lot in return.269 Nevertheless, it is an historically important fact that many gifts were of substantial value and that socially important persons were expected to make valuable donations to their amici on at least some occasions.270 Martial ridicules his ‘great friends’ who gave him only worthless gifts. Sextus gave him a pound of silver the first year, but only half a pound of pepper the next.271 Postumianus started by giving 4 pounds of silver, but ended up giving a silver spoon lighter than a needle.272 Lupus gave a piece of land smaller than Martial’s flower pot.273 Of course Martial’s cases are fictitious, but they illustrate the strong social pressure notables were under to make generous gifts to their ‘friends’. The higher one’s social position, the more valuable one’s gifts ought to be.

263 Cf. WHITE (1978), p. 87-88, referring to CICERO, Off. II, 52; SENECA, Ben. I, 11. See also SALLER (1982), p. 123-124; SALLER (1983), p. 250-251. For symbolic gifts in general see MACCORMACK (1976), p. 95: ‘The return gift should, therefore, not be considered principally as an obligation (arising from a “norm of reciprocity”) but as a ritual statement reciprocating the desire to maintain a close association.’ 264 CICERO, Att. I, 8, 3; 10, 6. 265 MARTIAL V, 59. 266 MARTIAL VIII, 33. 267 MARTIAL X, 87. 268 MARTIAL IV, 46 269 MARTIAL V, 18; 59; X, 87. 270 See also SALLER (1982), p. 123; SALLER (1983), p. 252; contra see WHITE (1978), p. 87-88. 271 MARTIAL X, 57. 272 MARTIAL VIII, 71. 273 MARTIAL XI, 18

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a) Clothes and textiles.

Clothes seem to have been a standard gift of often considerable value. Horace mentions a certain Eutrapelus who is said to have corrupted people he disliked by giving them uestimenta pretiosa, thus accustoming them to a more expensive lifestyle than their means could bear.274 Martial confirms that clothes and textiles were a common gift. A fellow poet was given a cloak worth 10,000 sesterces. Martial deliberately exaggerated the value of the cloak to underline the absurdity of the (no doubt fictitious) case.275 However, the cloaks of Tyrian purple Restitutus received on his birthday from the clients he had defended in court, do seem to be meant as realistic examples of possible gifts.276 The epigrams praising the magnificent togae Martial received from the emperor and his intimate Parthenius undoubtedly immortalise a real gift.277 The purple-hemmed handkerchief (lato uariata mappa clauo) mentioned in Martial’s epigram 4,46 is a caricature of the purple banded senatorial toga. b) Gold and silver

Uncoined gold and silver in the Ancient World were commonly associated with money. It was easily exchanged for coins and served as an accepted medium for wealth storage. Gold was not regularly minted during the Republic until Caesar. Instead gold bullion was commonly used for large transactions.278 When Cicero left Italy in exile in 58 Rabirius Postumus gave him gold.279 Trebatius Testa hoped to be laden with Gallic gold and silver by Caesar.280 Marc Antony’s father, Antonius Creticus, was reputed to have given a silver bowl (perhaps meant as a loan) to a friend in need of money.281 Martial has numerous examples of valuable gold and silver objects being given to friends.282

274

HORACE, Epist. I, 18, 31-36. MARTIAL IV, 61. 276 MARTIAL X, 87. 277 MARTIAL VIII, 28; IX, 48. For other examples of togae as gifts see MARTIAL X, 11; 73; 87; XII, 36. 278 Cf. SALLER (1983), p. 253; NICOLET (1988), p. 87 (= CAH X, p. 631); HOWGEGO (1992), p. 9-12; HARL (1996), p. 40; CRAWFORD (1969), no. 357; VERBOVEN (1997a), p. 67; CICERO, Clu. 179; Cael. 30-31; Rab. Post. 47; Phil. III, 10; Att. XII, 6, 1; Flacc. 67-69; Vat. 12. Note that Caesar’s decree against hoarding applied also to gold (DIO XLI, 38, 1). 279 CICERO, Rab. Post. 47. 280 CICERO, Fam. VII, 7, 1; 13. 281 PLUTARCH, Ant. 1. 282 MARTIAL V, 59; VIII, 33; 50; 71; 86; X, 57; XII, 36. 275

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c) Cash money

The embarrassment surrounding gifts of money in modern western society was wholly absent in ancient Rome, even in contexts where the offering of money would be tantamount to an insult today – as in the case of sexual relations.283 Seneca expressly mentions pecunia as an example of useful benefactions (beneficia utilia).284 Gifts of money could be very considerable. Plutarch claims Antony once ordered a slave to give one million sesterces to a friend.285 Atticus gave over 250,000 sesterces to Cicero, 400,000 to Brutus and an unknown sum to the younger Marius.286 Marcius Philippus gave 7000 sesterces to his client Volteius Mena.287 Several amici, among whom Pontius Aquila, supported Brutus Albinus financially in his struggle against Antony.288 Pliny the Younger gave 300,000 sesterces to Romatius Firmus, 100,000 to Calvina, 50,000 to Quintilianus, 40,000 to Metilius Crispus, an unknown but substantial sum to the philosopher Artemidorus and money to cover travelling expenses (uiaticum) to Martial.289 Numerous epigrams of Martial mention gifts of money: 200,000 sesterces to the poet Mancinus from an admirer290, 20,000, 10,000 and 1000 sesterces to Galla from lovers291, 5000 sesterces to Calliodorus from an unknown friend292, a few pieces of gold to Martial himself from Fabullus.293 d) Land and real estate.

The most prestigious gift was a piece of land.294 Pompey gave Balbus a stretch of land in the neighbourhood of Rome on which Balbus built a suburban villa.295 Curio gave an estate (praedium rusticum) to Caelius

283

Cf. VEYNE (1978), p. 45. SENECA, Ben. I, 11. 285 PLUTARCH, Ant. 4, 4. 286 NEPOS, Att. 8 (Brutus); NEPOS, Att. 4, 4; CICERO, Att. III, 19, 3; 20, 2 (Cicero); NEPOS, Att. 2, 2 (Marius). 287 HORACE, Epist. I, 7, 80 (besides another 7000 which he lent to Mena). 288 DIO LVI, 40, 2. 289 PLINY, Epist. I, 19 (Romatius Firmus); VI, 25, 3 (Metilius Crispus); II, 4 (Calvina); VI, 32 (Quintilianus); 3, 11(Artemidorus); 3, 21, 2 (Martial); cf. SHERWIN-WHITE (1966), p. 129-131, 384386, 149-150, 398, 239-240; 263. 290 MARTIAL IV, 61. 291 MARTIAL X, 75. 292 MARTIAL X, 11 293 MARTIAL XII, 36; cf. also IV, 37; VI30; X, 15. 294 Cf. WHITE (1978), p. 91; cf. also SALLER (1983), p. 247-251. 295 CICERO, Att. IX, 13a. 284

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Rufus.296 The 7000 sesterces given to Volteius Mena by his patron were meant to buy a farmstead.297 Maecenas gave Horace an estate in Sabinum.298 Martial received a small manor in Nomentum. Upon his return to Spain, Marcella and Terentius Priscus both gave an estate.299 An unknown benefactor gave Martial a small house in the city.300 These gifts of real estate to friends echo similar gifts to close kin and lovers. Cicero gave his share of the paternal house in the Carinae to his brother.301 Caesar sold a few magnificent estates (amplissima praedia) to Servilia for a nominal sum.302 Pliny would later confer a farm (agellus) on his nurse.303 e) Varia.

Many gifts escape classification. Curio gave Caelius Rufus – besides the estate mentioned above – some panthers to use in the games which Caelius was expected to give as aedilis plebis.304 Verres gave Hortensius a statue of a sphinx in exchange for his services as patron in court.305 L. Papirius Paetus gave Cicero the library he had inherited from the grammarian Ser. Claudius.306 Lucullus Ponticus ceded an inheritance he had received to App. Claudius, who presumably had been appointed heir in the second degree.307 Martial mentions a lot of roof tiles meant for the roof of his villa. The case is probably fictitious, but not implausible.308 On the whole it would seem that anything could be the object of a gift. The choice depended mostly on the situation of the giver and on the circumstances surrounding the gift.

296

CICERO, Fam. VIII, 9, 3.

297 298

HORACE, Epist. I, 7; 14; Carm. II, 18, 14; III, 1, 47; Serm. II, 7, 118. MARTIAL XI, 18; XII, 3; 31. See also MARTIAL VII, 31; X, 48; 94; XIII, 42; SALLER (1983), p. 251-254. 300 MARTIAL IX, 97. 301 PLUTARCH, Cic. 8. 302 SUETONIUS, Iul. 50, 3. 303 PLINY, Epist. VI, 3; SHERWIN-WHITE (1966), p. 358. 304 CICERO, Fam. VIII, 9, 3. 305 QUINTILIAN, Inst. VI, 3, 93; PLINY, N.H. XXIV, 48; PLUTARCH, Cic. 7, 6; Mor. 205B; DAVID (1992), p. 133-134. For Verres’s relation with Hortentius see BRUNT (1980), p. 280. The statue is variously described as made from Corinthian bronze (Pliny), silver or ivory (Plutarch). 306 CICERO, Att. I, 20, 7; II, 1, 12. See DEMMEL (1962), p. 317-345 on their friendship. 307 VARRO, R.R. III, 16, 2. 308 MARTIAL VII, 36. 299

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1.3 Occasions for gifts. Gifts were generally not given at arbitrary times. As in our day and age, there were specific occasions and days in a year when family, friends, patrons and clients were expected to make gifts: New Year, the Saturnalia, the kalends of March, birthdays, marriages, and so forth.309 Such gifts on ‘regular’ occasions – such as a person’s birthday – could be quite substantial, but in many cases they were mainly symbolic serving as a token of friendship or loyalty and a pledge for the future. Apart from these ‘regular’ occasions, however, gifts were also expected in certain situations, for instance, as a form of assistance in emergencies, as help in meeting the expenses of standing for office or in carrying the financial burdens of office, or as help in paying fines. a) War and exile

Friends, patrons and clients were expected to help each other in case of emergency, and war and exile clearly qualified. Atticus gave money to C. Marius filius in 82, when the latter had to escape from Sulla.310 When Brutus fled from Antony in 44, Atticus donated 100,000 sesterces to him and offered him another 300,000 sesterces in Epirus.311 Cicero received 250,000 sesterces from Atticus when he was exiled from Italy and counted on Atticus to give him an allowance from the proceeds of his estates in Epirus.312 C. Ateius Capito is also said to have supported Cicero on this occasion313, while C. Rabirius Postumus gave him an unknown amount of gold.314 At the same time, Cicero counted on his friends to support Terentia and the children who stayed behind in Rome, and he advised his wife not to sacrifice too much of her own patrimony: ‘if our

309

See SALLER (1983), p. 252. Birthdays: PLINY, Epist. IV, 9, 7 (cf. SHERWIN-WHITE (1966), p. 277); MARTIAL VII, 86; X, 27; 87. New Year: MARTIAL VIII, 33. Saturnalia: CATULLUS 14A.15; PLINY, Epist. IV, 9, 7; 8, 7; MARTIAL IV, 46; V, 18; VII, 36; 53; VIII, 71; MACROBIUS, 1, 7, 33; SUETONIUS, Aug. 75; SHA, Hadr. 17, 3. Kalends of March (archaic New Year): Dig. XXIV, 1, 1, 8; SUETONIUS, Vesp. 18.1. The Saturnalia were most of all associated with patronage. They had been instituted as a special festival for commoners (LIVY XXX, 1, 20) cf. NILSON (1921), col. 204205. This together with the myth of patronage (according to which patronage was instituted by Romulus to protect the common people, cf. supra p. 57) explains the link. 310 NEPOS, Att. 2, 2. 311 NEPOS, Att. 8. 312 NEPOS, Att. 4, 4; CICERO, Att. III, 19, 3; 20, 2. 313 CICERO, Fam. XIII, 29, 2. 314 CICERO, Rab. Post. 47.

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friends remain duteous, money will not be lacking.’315 Accordingly, when Cicero’s brother Quintus offered financial support, Cicero refused, saying that he had already used up a large sum of money belonging to Quintus in a failed attempt to ward off Clodius.316So, apparently, Cicero hoped to cover his expenses wholly through support from his amici. During his stay in Pompey’s camp in 49-48, Cicero again received money from Atticus in Epirus. The money was clearly given unconditionally and repayment was contingent on Cicero’s safe return.317 b) Ransom

The Roman myth of patronage, as told by Dionysius of Halicarnassus, prescribed that clients had to contribute in paying ransom money for their patrons if necessary.318 In fact, we are dealing here with an ancient and bounden duty of friends, well known from the Greek world.319 Cicero mentions it in his De Officiis when he describes the actions of a true homo liberalis.320 Although piracy was a serious problem in the Mediterranean during the Late Republic until Pompey’s campaign, and kidnapping was traditionally a lucrative speciality of pirates, we have few actual examples of the practice for the Late Republic. P. Clodius Pulcher – the later tribune – was taken hostage after a defeat he suffered in Cilicia as naval commander against the pirates. Clodius appealed to king Ptolemy of Cyprus to pay the ransom, but the king only offered to contribute 2 talents (48,000 sesterces). In the event Clodius was released because the pirates feared Pompey’s fleet and wanted to appease the great general. Clodius may have appealed to Ptolemy because the latter was a hereditary client of the Claudii Pulchri, but there is no evidence to support this interpretation and the very fact that Ptolemy offered such a ridiculously low sum as contribution suggests that no personal connection existed between them.321

315

CICERO, Fam. XIV, 1, 5: si erunt in officio amici, pecunia non deerit; cf. also Fam. XIV, 2, 3; Att. IV, 2, 7. 316 CICERO, Q. fr. 1, 3, 7; Att. IV, 3, 6. 317 CICERO, Att. XI, 2, 4; 13, 4. 318 DIONYSIUS HAL. II, 10, 2. 319 See MILLETT (1991), p. 59-61. 320 CICERO, Off. II, 55. Cf . DYCK (1996), p. 440. 321 CICERO, Har. Resp. 42; APPIAN, B.C. II,23; DIO, XXXVIII,30,5; PLUTARCH, Caes. 2,1. See TATUM (1999), p. 49-50.

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The most famous hostage was Caesar. In order to raise the 50 talents (1,200,000 sesterces) of ransom his kidnappers demanded he sent envoys to several cities. Plutarch claims the ransom money eventually came from Miletus, although other cities may have contributed. It may be that the cities the envoys were sent to were in Caesar’s clientela and that other clients and friends contributed, but we do not know this for sure.322 c) Fire, storm and other damages.

There was no equivalent for modern insurance against fire, storm or other damages in the Ancient World. However, gifts from amici could fulfil the need. Martial and Juvenal describe sarcastically how amici donated generously when a wealthy person’s house burned down. Both poets suggest that the money donated far exceeded the value of the property lost, insinuating that the owner started the fire himself.323 We have no comparable examples for the Late Republic, but as a form of solidarity in case of misfortune, the habit would be in line with the other attested reasons for financial assistance. d) Fines.

According to the foundation myth of patronage, clients were expected to contribute in the payment of their patron’s fines.324 However, the few examples we have of such cases show an intrinsic ambiguity. P. Cornelius Scipio Africanus the Elder was heavily fined in 187 BCE for embezzling part of the booty of the war against Antiochus. When he proved unable to pay up, his relatives, friends and clients organised a collection that raised considerably more money than necessary. Livy claims that Scipio refused the money and relied solely on his closest relatives to buy back what was necessary for the family cult.325 The case recalls the much older and perhaps legendary case of M. Furius Camillus, who was fined 15.000 asses for allegedly having embezzled part of the booty from Veii. His clients, fellow soldiers and relatives offered to pay the fine, but Camillus refused the offer because it could not absolve him and went into exile.326 Obviously, neither Scipio the Elder

322 PLUTARCH, Caes. 1-2; VALERIUS MAXIMUS VI, 9, 15; VELLEIUS PATERCULUS II, 42; SUETONIUS, Iul. 4. See also SHATZMAN (1975), p. 347. 323 MARTIAL III, 52; JUVENAL 3, 212-222. 324 DIONYSIUS HAL. II, 10, 2. 325 LIVY XXXVIII, 60, 8-9. See also ROULAND (1979), p. 264-265. 326 LIVY V, 32, 8; PLUTARCH, Cam. 12, 2; DIONYSIUS HAL. XIII, 5, 1. See SHATZMAN (1983), p. 83.

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nor Camillus was keen on accepting money from his clients or friends. This accords well with Plutarch’s assertion in his version of the foundation myth of patronage that in the course of time it came to be held improper for patrons to accept money from their clients.327 Ironically, we have an example of the opposite situation where a patron payd the fine of his clients. Caesar fined the city of Buthrotum for having chosen Pompey’s side in the civil war. Because the city was unable to pay, Caesar decided to confiscate part of its territory for the settlement of veterans. In order to prevent the settlement, Atticus – whose richest estates were located in the region and who was probably patron of the city – paid the fine himself. The project failed. A new colony was founded on the city’s territory and it seems unlikely that Atticus was ever repaid.328 e) Debts.

Roman law was harsh on insolvent debtors. Although debt bondage had been officially abolished by the lex Poetelia Papiria de nexis in 328, insolvent debtors could still be placed in the custody of their creditors by the praetor until they had worked off their debt.329 Insolvent upper class debtors stood to lose the totality of their possessions and their social position. The censors could expel them from the senate. Infamia followed a conviction for insolvency.330 Understandably therefore, when insolvency threatened financial aid from friends was called for. Plutarch’s version of the foundation myth of patronage explicitly mentions such aid as a traditional duty of clients vis-à-vis their patrons.331 We have already seen that Cicero’s general description of the duties of a homo liberalis included ‘sustaining’ debts for friends (aes alienum suscipiunt amicorum), a description vague enough to encompass both standing surety and paying debts.332 When L. Tullius Montanus was summoned to pay a debt which Flaminius Flamma owed to the state for which he stood surety, Cicero promised to pay in Montanus’s place, remarking to Atticus that it was a

327

PLUTARCH, Rom. 13, 6 CICERO, Att. XVI, 16a, 2-3. See DENIAUX (1975); DENIAUX (1987), p. 865-1088. 329 On the lex Poetelia Papiria see BARLOW (1978), p. 46; FRANK (1933), p. 32; ROTONDI (1962), p. 230-231 (see here for source references). On debt-bondage through addictio afterwards see e.g. SALLUST, Cat. 33; FREDERIKSEN (1966), p. 129. 330 See FREDERIKSEN (1966), p. 128-130. 331 PLUTARCH, Rom. 13, 6. 332 CICERO, Off. II, 55. 328

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question of his ‘personal duty’ (officium).333 Caesar supported C. Rabirius Postumus when he was on the verge of insolvency (according to Cicero) in 54.334 Political reasons led to a comparable intervention in favour of Marc Antony335, C. Scribonius Curio336 and L. Aemilius Paullus337 in 50. Antony offered money to young Q. Cicero in 44 with which to pay his debts.338 His father, M. Antonius Creticus, once gave a silver bowl to a friend who desperately needed money.339 The practice continued under the Early Empire. Over a century later Pliny helped the philosopher Artemidorus pay his debts.340 It is sometimes difficult to make out whether these gifts were truly gifts or just loans. Cicero’s payment in Montanus’s name would certainly have been paid back if Montanus had recovered the money from Flamma, but what if Montanus would recovered it? It somehow seems unlikely that Cicero would have pressed Montanus to pay back in that case.341 f) Dowries

The obligation to provide a suitable dowry for daughters was one of the most important social duties of a respectable father. It also represented a considerable financial burden. The higher one’s social status was, the larger one’s daughters’ dowries ought to be. Friends and clients were expected to contribute if necessary to help support their friend or patron’s dignitas. Both Dionysius and Plutarch assert that the Romulan ‘code’ of patronage explicitly mentioned such support as a duty expected from clients.342 Cicero mentions financial help to provide dowries for the daughters of friends as a typical act of true liberalitas.343

333

CICERO, Att. XII, 52, 1: pertinet ad nostrum officium. See also Att. XII, 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1. 334 CICERO, Rab. Post. 41-43. See also SIANI-DAVIES (1997), p. 336. 335 SHATZMAN (1975), p. 297-304; CICERO, Phil. II, 4; PLUTARCH, Pomp. 58, 1. 336 SHATZMAN (1975), p. 396; PLUTARCH, Pomp. 58, 1; VELLEIUS PATERCULUS II, 48, 34; LUCANUS I, 269; 4, 819-820; APPIAN, B.C. II, 26; DIO XL, 60, 2. 337 SHATZMAN (1975), p. 289-290; PLUTARCH, Caes. 29, 3; Pomp. 58, 1; SUETONIUS, Iul. 29, 1; APPIAN, B.C. II, 26; DIO XL, 63, 2. 338 CICERO, Att. XV, 21, 1. See also Att. XIII, 42, 1; XIV, 14, 1; 19, 3; XV, 19, 2; 21, 1; XVI, 5, 2. 339 PLUTARCH, Ant. 1. 340 PLINY, Epist. III, 11; SHERWIN-WHITE (1966), p. 239-240. 341 We will have occasion to speak about the case again when we come to loans. In fact, we see that Cicero put pressure on Flamma as soon as the latter returned to Rome (CICERO, Fam. XVI, 24, 1). 342 DIONYSIUS HAL. II, 10, 2; PLUTARCH, Rom.13, 6. 343 CICERO, Off. II, 56. See also Dig. XXVI, 7, 17, 3 (Paulus) (tutor) non dabit dotem sorori alio patre natae, etiamsi aliter ea nubere non potuit: nam etsi honeste, ex liberalitate tamen fit, quae seruanda arbitrio pupilli est. On dowries in Roman society see SALLER (1994), p. 204-224; HOPKINS (1983), p. 77-78, 88-89; TREGGIARI (1991), p. 323-364; WATSON (1967), p. 57-58; SHATZMAN (1975), p. 53. See also MILLETT (1991), p. 62-63. Note that patrons were also expectedd to give counsel on possible marriage candidates: PLUTARCH, Cat. Mai. 24, 3-5; CICERO, De Orat. III, 133; DIXON (1993), p. 456.

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However, although Cicero seems to have counted on Atticus in 48 to pay Tullia’s dowry if necessary344, we have no unambiguous example from the Late Republic of the actual donation of money needed for a dowry. The paucity of evidence is not necessarily significant. Parkins notes that we have only very few examples of actual dowries attested, although it is beyond doubt that – at least insofar as the elite is concerned – any marriage normally required a dowry.345 Two cases do show that concern over dowries was a motivation to show liberalitas towards friends. In Varro’s Res Rusticae, the fact that App. Claudius could not give his sister a dowry when she married Lucullus Ponticus is presented as a sign of paupertas. Lucullus’s willingness to marry her nonetheless is valued as a laudable beneficium that is placed on a par with Lucullus’s ceding an important bequest to Appius.346 As heir to his stepmother Aemilia, Scipio Aemilianus had to pay the remaining half of his sisters’ dowries – 600,000 sesterces each – after his stepmother had paid the first half. According to the law, the money had to be paid in three yearly instalments. Scipio, however, ordered his banker to pay out the entire sum at once. His two brothers in law, Ti. Sempronius Gracchus and P. Cornelius Scipio Nasica, were perplexed by the young man’s generosity. Scipio Aemilianus replied that whereas he was most strict in his dealings with strangers, towards friends and relatives he was as easy and liberal as he could be.347

344

Eventually, Atticus’s help was not needed. On Tullia’s dowry see CICERO, Att. XI, 2, 3; 3, 1; 4a; 25, 3; 23, 3; XII, 5c; DIXON (1986), p. 102-111; COLLINS (1951-1952); TREGGIARI (1991), p. 347, 352-353, 360. 345 PARKINS (1997), p. 98-102. ‘Normally’, but not legally! The dowry was a social obligation, not a legal one. 346 VARRO, R.R. III, 16, 2. Note, however, that Lucullus gained the political support of the influential Claudii Pulchri by this marriage, which amply compensated for the absence of a dowry, see DIXON (1983), p.102. Whether or not Claudius’s paupertas was real or merely a literary joke of Varro’s (see TATUM (1999), p. 36) is irrelevant for our purposes. 347 POLYBIUS XXXI, 27, 1-16. ( (31, 27, 15)).

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Evidence from the Early Empire is less ambiguous. Pliny contributed 50,000 sesterces to the dowry of Quintilianus’s daughter.348 Calvina – regarding whom Pliny claimed to be led by his duty as an in-law (ductus adfinitatis officio) – received 100,000 sesterces.349 Apuleius prided himself on having provided dowries for the daughters of some of his friends and teachers.350 g) Status related expenses.

Providing dowries for the daughters of friends was a way to help them sustain the burdens of an elevated social position. According to Cicero, inequality in friendship had to be accepted because a man could not be expected to enhance the social status of all his friends.351 His De Officiis distinguishes between help to friends in need and help to friends who seek to improve their position. The first had the stronger claim, but the aim of the latter was equally legitimate and the assistance offered equally justified.352 Curio’s gift of an estate to Caelius Rufus belongs in this category.353 The case is exceptional for the Late Republic, but we have several instances of status-enhancing gifts under the Early Empire. Pliny gave 40,000 sesterces to Metilius Crispus on the occasion of his promotion to centurion, in order to enable him to buy splendid equipment and uniform.354 Romatius Firmus received 300,000 sesterces, elevating him to the census equestris.355 Martial wrote an epigram about a Gaurus who requested 100,000 sesterces from an unknown praetor to achieve the same goal.356

348

PLINY, Epist. VI, 32. See SHERWIN-WHITE (1966), p. 398. PLINY, Epist. II, 4. See. SHERWIN-WHITE (1966), p. 149-150. Calvina is further unknown. 350 APULEIUS, Apol. 23, 2. 351 CICERO, Am. 73. 352 CICERO, Off. II, 62: ut altiorem gradum ascendant. See also Off. II, 21 where Cicero names beneuolentia as one of the reasons why people supported others in their attempts to improve their position. 353 CICERO, Fam. VIII, 9, 3. Although we cannot be sure that the estate was actually given to Caelius. 354 PLINY, Epist. VI, 25, 3; SHERWIN-WHITE (1966), p. 385. See also SALLER (1982), p. 123. 355 PLINY, Epist. I, 19; SHERWIN-WHITE (1966), p. 129. 356 MARTIAL IV, 67. 349

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Closely related to status enhancing gifts were gifts meant to help politicians sustain the financial burdens of office. Thus Cicero received grain and other foodstuffs from Sicilian communities when he was aedile in 69, which enabled him to lower the price of provisions considerably.357 Curio gave some panthers to Caelius Rufus for the aedilician games in 50.358 h) Legal assistance.

Legal assistance was traditionally the prime duty of a patron towards his clients. The relation between patronage and defence in court was so close that the term patronus itself acquired the juridical-technical meaning of advocate or pleader in court.359 The assistance was traditionally part of the generalised or balanced reciprocity expected in patron client relations.360 This traditional arrangement began to break down from at least the late third century, when patroni started asking payment for their services in court. The government reacted by issuing the lex Cincia (cf. supra p. 75). Although the ideal of the patron as defender in court remained very much alive, the Cincian law was never very successful. Patrons continued to accept valuable gifts from their clients in exchange for their services in court. Obviously, these gifts were often simple payments and contemporaries regarded them as such.361 Nevertheless, although they were formally illegal, the attitude towards these gifts was ambiguous. Quintilian thought that although a defence in court was a beneficium that should not be sold, it should not be lost either. To defend others in court provided a source of income (ratio adquirendi) and when clients refused to donate something to their patron, they were unworthy of being defended. Those who spent their time defending others in court were unable to use this time to apply themselves to other ways of acquiring an income.362

357

PLUTARCH, Cic. 8, 1; cf. CICERO, Off. II, 59. CARCOPINO (1947) I, p. 154-155; DENIAUX (1994) (see here for comparable cases). 358 CICERO, Fam. VIII, 9, 3. 359 Cf. NEUHAUSER (1958), p. 35-64; DAVID (1992); ROULAND (1979), p. 275-295. 360 On the notions of ‘generalised’ and ‘balanced’ reciprocity see SAHLINS (1972), p. 191-196. 361 Cf. e.g. TACITUS, Ann. XIII, 42: eius opprimendi gratia repetitum credebatur senatus consultum poenaque Cinciae legis aduersum eos qui pretio orauissent. 362 QUINTILIAN, Inst. XII, 7, 10-12. See also TACITUS, Ann. XI, 7; Dial. 8-9; DAVID (1992), p. 129-130.

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Although the attitude seems to have been less tolerant in Cicero’s day, reality was much the same. Cicero criticised the ‘mercenary pacts in patrocinia’ with which Crassus (among others) enriched himself.363 C. Aelius Paetus Staienus is discredited in the Pro Cluentio for acquiring an income in the court.364 A hundred years later C. Scribonius Curio and P. Clodius were still famous for the high price of their court orations.365 Verres gave Hortensius a valuable statue of a sphinx to thank him for his defence in court.366 Cicero himself was censured for being a mercennarius patronus.367 The reproach may have been exaggerated, but was not unfounded. P. Sulla gave Cicero a ‘loan’ of two million sesterces in exchange for his defence against the accusation of complicity in Catiline’s conspiracy. It seems very unlikely that Cicero ever repaid the money.368 Furthermore, Cicero had arranged with his consular colleague Antonius Hybrida to receive part of the income from the province of Macedonia-Achaea, which had been allotted to him but which he had handed over to Hybrida. It was not until it became clear that Antonius would need Cicero to defend him in court against a charge of repetundae for his malversation in the province, that the money was finally given.369 Perhaps L. Papirius Paetus’s gift to Cicero of the library he had inherited from the grammarian Ser. Claudius was also given in exchange for a defence in court. Cicero jokingly notes that, according to Atticus’s friend Cincius, there was nothing in the lex Cincia to prohibit this gift. The joke is a pun on the name of Cincius and should not be taken seriously to mean that Cicero consulted with Cincius because he was worried about the legality of the gift, as Carcopino believes. However, the two men were

363

CICERO, Par. Stoic. 6, 46: mercedum pactiones in patrociniis. CICERO, Clu.101: quaestus forensis. See DAVID (1992), p. 133. 365 TACITUS, Ann. XI, 7. 366 QUINTILIAN, Inst. VI, 3, 98; PLINY, N.H. XXIV, 48; PLUTARCH, Cic., 7, 6; Mor. 205B. See DAVID (1992), p. 133-134; BRUNT (1980), p. 280; SHATZMAN (1975), p. 345; cf. ibid. p. 73. For other examples see M. Aemilius Scaurus (cos. 115, SHATZMAN, o.c. p. 263), C. Erucius (SHATZMAN, o.c. p. 272), Q. Arrius (SHATZMAN, o.c. p. 305). 367 PS.-SALLUST, In Cic. 3-5; DIO XLVI, 6-7. SMUTNY (1951-1952), p. 52; DAVID (1992), p. 129-130. 368 GELLIUS XII, 12. See also CICERO, Att. IV, 13, 6; 16, 10; IV, 5, 2; DAVID (1992), p. 131-132; SMUTNY (1951-1952), p. 52. 369 cf. CICERO, Att. I, 12, 1; 13, 6; 14, 7; cf. CARCOPINO (1947) I, p. 206-230; SHACKLETON BAILEY (1965-1970) I, p. 297. 364

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close friends and nothing indicates that Paetus’s gift had been negotiated.370 Nevertheless, traditional free patronal assistance as a beneficium never disappeared. Pliny prided himself on never accepting anything by way of thanks for his orations.371 Although Cicero occasionally did accept money in exchange for his orations, nothing in his letters indicates that this was his standard practice. Patronage in court was primarily a means to build a political power base. Reality shows a continuum ranging from purely ‘mercenary’ patronage to the more traditional defence as a beneficium within the framework of an amicitia or patron-client relation. The very nature of amicitia as a relation based on mutual advantage or at least, generating substantial benefits, usually made asking a price for defence in court redundant because the relation itself required that a balance be struck. The borderline between what was allowed and what was not allowed was not always clear. It is difficult to imagine that assistance in court would have made substantial gifts illegal for the duration of the friendship. Paetus’s gift may belong in this twilight zone between payment and balanced reciprocity. Most gifts of clients to their patrons as thanks for a defence in court were symbolic and were given during the Saturnalia. Martial lists the different gifts that Restitutus received: a gem from a girl that had been raped, works of art from a dealer in antiques, a purple cloak from a trader in luxury clothes, an evening dress from a troublemaker, a hare from a hunter and a poem from a poet.372 Of course, a patron could reap his reward on some later occasion, for instance, when his client died and left him a substantial legacy or a share of the inheritance. Gratia required that a return of – ideally – equal value was given. But this was selfevident in the framework of reciprocity and the benefits a patron might hope for were unspecified and uncertain. The overall picture reminds us of the situation in the Greek countryside in the 1950s as described by Campbell, where the pastoral population largely depended on lawyers for their contact with the administration.

370

CICERO, Att. I, 20, 7; II, 1, 12; SMUTNY (1951-1952), p. 51; TYRELL & PURSER (19041933) I, p. 39, 243; SHACKLETON BAILEY (1965-1970) I, p. 343; DAVID (1992), p. 130-131. Somehow, Carcopino doesn’t think it’s funny (CARCOPINO (1947) I, p. 149-152). 371 PLINY, Epist. V, 13, 8: in causis agendis non modo pactione dono munere uerum etiam xeniis semper abstinui. 372 MARTIAL X, 87. See also MARTIAL IV, 46.

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The relation between the heads of family and their lawyers was patronal. The lawyers acted as general protectors of the family and were often godfather of one or more of the children. In turn, the shepherds offered respect, honour and political support. At regular times of the year, the shepherds sent presents, such as cheese, butter and occasionally – at Easter – a lamb. The closer the relation, the more the lawyer’s fee became insignificant, … which did not stop the lawyer from pocketing the money his clients gave him to bribe judges or officials!373 i) Political gifts.

It had long been customary in Rome for military leaders to reward their officers and soldiers by distributing part of the booty after a successful campaign. Pompey distributed about 100 million sesterces among his legati and officers and about 284 million among his soldiers. Lucullus gave his soldiers only about 4 million sesterces.374 Although the money theoretically belonged to the state, the generals were usually allowed to dispose of it as they pleased. This meant that the Donations were considered to be beneficia of the generals, who used them to bind officers and soldiers to themselves. Caesar’s liberalitas was famous. Q. Cicero was only one of the many who were enriched by Caesar’s generosity.375 Caesar appointed C. Trebatius Testa as military tribune on Cicero’s recommendation. Trebatius’s sole object was to enrich himself in a minimum of time. Cicero advised him to try to become Caesar’s intimate, but also warned him to be patient when he proved a little hasty and acted as if Cicero’s letter of recommendation had been a letter of credit.376 Those who were closer to Caesar, such as L. Cornelius Balbus,377 his praefectus fabrum in Spain and Gaul, the mysterious Mamurra,378 his praefectus

373

CAMPBELL (1964), p. 259-260. FRANK (1933), p. 324-326. See also SHATZMAN (1975), p. 64-67. 375 CICERO, Att. XI, 9, 2; Q. fr. II, 11(12), 5; Fam. I, 9, 18; 21; cf. BENOEHR (1986b), p. 29. 376 CICERO, Fam. VII, 7; 8; 9; 9, 2-3; 13; 16, 3; 17, 1; 18, 1. See also BENOEHR (1986b), p. 29; DENIAUX (1993a), p. 563-564. 377 cf. CICERO, Balb. 63: 'non nullorum particeps commodorum'; Att. VII, 7, 6; NICOLET (19661974), p. 853-855; SHATZMAN (1975), p. 329-330. 378 SHACKLETON BAILEY (1965-1970) III, p. 306; NICOLET (1966-1974), p. 940-941; BROUGHTON (1951-1986) III, p. 133-134. See CATULLUS 29; 57; SUETONIUS, Iul. 73, 1; PLINY, N.H. XXXVI, 48; CICERO, Att. VII, 7, 6; XIII, 52, 1. 374

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fabrum in Gaul and Labienus,379 his lieutenant in Gaul, gathered fortunes. Not all of Caesar’s allies were easily bought. Antony complained that Caesar had not given him enough compared to the support he had always lent him.380 The same liberality was expected from provincial governors in times of peace. Although legates and prefects were entitled to a maintenance allowance (cibaria)381 for their services, most expected more.382 Cicero had been so strict in his administration of Cilicia that he had a surplus on his budget at the end of the year. He left this in the province, much to the consternation of his staff, who had expected the money to be divided among them. Cicero’s quaestor Mescinius Rufus complained because – due to an administrative error – he had ‘lost’ 100,000 sesterces which he had counted on getting.383 Even Cicero’s brother Quintus was disappointed by what he had ‘earned’ as a legate of his brother.384 A few years earlier, when Pompey had been appointed curator annonae, Quintus had been Pompey’s legate in Sardinia, where he had acquired considerable wealth.385 It is beyond doubt that the recipient in these cases was considered to be morally entitled to the ‘gifts’ he received. Nevertheless, it is remarkable that these transactions continued to be framed in terms of liberalitas and that it was left at all times in the hands of the governors and generals to decide who would get what. This discretionary power seems even to have extended to the official remuneration that legates and prefects were entitled to. When L. Gavius – one of Brutus’s procurators in the East whom Cicero had appointed prefect –asked where he could get his allowance (cibaria), Cicero curtly answered him that he was not in the habit of paying people whose services he had not used.386 Another reason for Mescinius Rufus’s discontent with Cicero was that Cicero himself had distributed the customary beneficia (bonuses) among the military tribunes

379

SHATZMAN (1975), p. 375; CICERO, Att. VII, 7, 6; DIO XLI, 4, 4; PLUTARCH, Caes. 34, 3. It did not stop Labienus from choosing Pompey’s side at the outbreak of the civil war. See BRUNT (1986), p. 31. 380 CICERO, Phil. II, 72. See also SHATZMAN (1975), p. 297-300. 381 Theoretically the cibaria were a provision in kind meant as a compensation for the officers’ expenses, in reality they were usually paid in cash. 382 Cf. CICERO, 2 Verr. I, 36; Fam. V, 20, 7. See also SHATZMAN (1975), p. 53-63. 383 CICERO, Fam. V, 20, 8. See SHATZMAN (1975, p. 385. 384 CICERO, Att. VII, 1, 6; 3, 8. See also CATULLUS 10; 28. 385 CICERO, Q. fr. II, 5, 2 (4, 3). 386 CICERO, Att. VI, 3, 6. See also NICOLET (1966-1974), p. 896-897.

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and prefects, thus preventing Mescinius from acquiring gratia among these men. Cicero subsequently confessed and apologised for his mistake.387 C. Memmius’s ‘cohort of friends’ in Bithynia-Pontus in 57 had the same complaints.388 In part, we see emerging here the later imperial ideology that represented every administrative act of the emperor as a beneficium for which gratia was owed.389 However, in the Late Republic every official used the same technique, which ensured competition among the elite and freedom of choice among the rank and file, while under the Empire, the emperor was – ideologically – the sole source of all ‘administrative’ beneficia. 1.4 Sportulae The most famous kind of gift a patron could offer his clients was the sportula distributed at the daily salutation (salutatio) of clients to their patrons. The use of the term was not restricted to the context of personal patronage. It also denoted small sums of money or foodstuffs distributed as acts of euergetism. Originally, the sportula had been a basket of food meant to replace a common meal. Later (at least since the Early Empire) it became customary to give a small sum of money instead and the term sportula was extended to cover such gifts. 390 Domitian (temporarily) prohibited the giving of sportulae in money. The decree applied primarily to sportulae publicae, but a number of epigrams of Martial show it also covered sportulae given by patrons to their visiting clients.391 We should beware of confusing patronal sportulae with alms.392

387

CICERO, Fam. V, 20, 7. See also CICERO, Mur. 38 for the idea that praeda donare gives rise to

gratia. 388

CATULLUS 10, 9-13; 28. Cf. MACMULLEN (1986), p. 519-521; VEYNE (1976), p. 539-791 (contra Von Premerstein who considers the relation between emperor and subjects as essentially a form of patronage (VON PREMERSTEIN (1937), p. 13-116); LEVI (1984). For salaried posts in particular see SALLER (1983), p. 254. 390 Cf. LE GALL (1966), p. 1452-153; CLOUD (1989), p. 210-216; PRELL (1997), p. 260-263; CARCOPINO (1939), p. 203-204; MAYER (1989), p. 16-20. On food and patronage in Rome see D'ARMS (1984). Compare also DAMON (1997), p. 25-29 on food and parasites. On the symbolic and social significance of food sharing see FUSTEL DE COULANGES (1864), p. 134; SCHMITT PANTEL (1992). On the symbolic value of food in reciprocity systems see SAHLINS (1972), p. 215219; FOSTER (1977), p. 24. 391 SUETONIUS, Dom. 7, 1; MARTIAL III, 7; 30; 60. 392 On alms and begging see PRELL (1997), p. 67-78; BOLKESTEIN (1939), p. 202-214, 337-341; HANDS (1968), p. 46-47. For the conceptual difference between gifts in the framework of reciprocity relations and alms see MAUSS (1923-1924), p. 58-59; FOSTER (1977), p. 24. See also GOODELL (1985), p. 253 (and passim) on the difference between patronage and paternalism. 389

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Although in both cases the sums involved could be small, a sportula given by a patron to his client was by definition a gift within the framework of a personal relationship based on reciprocity. Whereas the client was entitled to his sportula, the patron was entitled to gratia expressed par excellence in the act of the salutatio that enhanced the patron’s honour and that in turn entitled the client to gratia, expressed by the sportula he received. Sportulae have long been considered an inherent feature of Roman patronage over the poor since at least the Late Republic. Le Gall, however, points out that only Martial and Juvenal mention daily sportulae to clients.393 Seneca refers contemptuously to the mass clientelae of C. Gracchus and M. Livius Drusus without mentioning any fee the clients would have received at their daily salutatio. Although he denounces the impersonality of the demagogues’ relationship with their so-called friends, Seneca does not claim that these ‘friends’ were bought. This could indicate that the phenomenon did not yet exist in the Late Republic and perhaps not even in Seneca’s time.394 Duncan Cloud has shown that Juvenal’s representations of patronage are very unreliable.395 The documentary basis for daily patronal sportulae, therefore, is very slim. Nevertheless, Le Gall – in my view correctly – accepts the historicity of the phenomenon, although he minimises its importance. However exceptional Martial and Juvenal may be, sportula occur too frequently and too casually in their work to be entirely invented by them. Saller notes that the lack of references to daily sportulae in earlier authors is not necessarily significant, since Seneca and Cicero wrote from a different point of view and in a different genre. Authors such as Pliny the Younger and Tacitus, who were contemporaries of Martial and Juvenal, do not mention the custom either. However, this argument turns

393

LE GALL (1966), p. 1452; LE GALL (1972). MARTIAL I, 59; III, 30; VI, 88; X, 74; 75; JUVENAL 1, 120. COLUMELLA, R.R., praef. 9 and SENECA Dial.X, 14, 3 (Breu. Vit.) seem to refer to the custom when they mention a salutator mercennarius and a meritoria salutatio, but their words are ambiguous enough to comprise occasional (but substantial) gifts. The context of both passages implies that the merces involved was considerable while sportulae were only small hand-gifts. Contra see HUG (1920), col. 2068. 394 SENECA, Ben. VI, 33, 4. 395 CLOUD (1989).

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the evidence upside down and generalises the exceptions (Martial and Juvenal). We may note also that Horace, who wrote in the same genre and repeatedly puts himself in the position of client, does not mention daily sportulae in money. The same holds true for Persius. Saller claims that ‘whether in the form of money or not, there must surely have been some concrete reward to encourage clients to endure the drudgery (of the salutatio)’.396 However, this is self-evident in the context of relations based on mutual advantage as amicitia or patronage and says nothing about the nature of this reward, viz. daily small sums of money or more occasional, less predictable but more substantial benefits. Rouland believes that although sportulae as such did not exist before the Early Empire the difference between them and the prodigality connected with mass clienteles of the Late Republic (largitiones) was small. ‘Ces largitiones représentaient évidemment la forme la plus rudimentaire d’assistance économique’.397 According to Rouland, these largitiones indicate that a new kind of impersonal mass clientelae had developed, in which the clients tried to gain an income, while the patrons tried to surround themselves with personal militias. This seems in accordance with Cicero’s remark in the Pro Murena that escorts (adsectationes) were formed mainly of poor clients (homines tenues) who had no other way to oblige their patrons and who were not hindered by occupations (occupationes) of their own.398 Although Rouland concedes that these poor clients may have hoped for their patrons to help them start a small business of their own by giving them a place to work or money to invest, he points out that such aid is not attested and prefers to interpret the clients’ support as motivated by the need for food, which lay at the basis of the later sportulae.399 I agree with Rouland in so far that sportulae in the context of patronage presented essentially a developed form of largitio and so an earlier form of irregular sportulae may have existed by the Late Republic. A different question altogether, however, is the ‘standard amount’ of 100 quadrantes for the ‘classic’ sportula that Martial and Juvenal present. Virtually all scholars today take this sum literally as the symbolic gift of a patron

396

SALLER (1982), p. 128, n. 57. ROULAND (1979), p. 273; ROULAND (1981), p. 143. 398 CICERO, Mur. 70-71. 399 ROULAND (1979), p. 271-275. For the idea that patrons could help their clients set up a small business see MARSH (1971), p. 32; SKYDSGAARD (1976). 397

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to his clients on their daily salutatio.400 However, a quadrans had been the lowest denomination in the Roman monetary system since the Late Republic. As such the term was commonly used to indicate something of small value, as the English penny in expressions like ‘I haven’t got a penny’. Thus we read in Martial: ‘There is not a quadrans in my moneybox’, and ‘No one will lend you a quadrans’.401 To take ‘a quadrans’ literally in these expression is to miss the point. There was very little one could buy with a quadrans. The entrance to a common bathhouse cost one quadrans but this is about the only thing we know could be bought for such a small sum.402 According to Cicero and Caelius Rufus, Clodia’s nickname ‘Quadrantaria’ would have derived from her hanging around in bathhouses for men. Plutarch’s explanation of the nickname – a lover would have sent her a purse full of quadrantes instead of one full of denarii – illustrates the aura of cheapness surrounding both Clodia and the quadrans.403 Plutarch’s anecdote indicates that the proverbial worthlessness of one quadrans could be transferred to a number of quadrantes. In one of Martial’s epigrams we hear of a meal of 100 quadrantes. The link with sportulae – that were originally substitutes for common meals – is obvious. The qualification is bizarre if we were to take the sum of 100 quadrantes literally since the quadrans was not a unit of reckoning. In the sense of ‘a cheap meal’ however, Martial’s paraphrase makes perfect sense.404 Another indication that the sum of 100 quadrantes should not be taken literally can be found in another epigram of Martial where he mentions centum plumbei. Plumbeus (nummus) – literally a coin made of lead and, therefore, false – is a term used already by Plautus to denote a small coin of little value. Centum plumbei, therefore, are ‘100 worthless coins’ and

400 MARTIAL I, 59; VI, 88; X, 74; 75; JUVENAL 1, 120. See e.g. DUNCAN-JONES (1982), p. 138; MROZEK (1975); ROULAND (1979), p. 549-551; SALLER (1982), p. 128; SALLER (1983), p. 252; PRELL (1997), p. 262; CARCOPINO (1939), p. 204. MARTIAL III, 30 mentions one quadrans. 401 MARTIAL II, 44, 9: quadrans mihi nullus est in arca; MARTIAL VII, 10, 12: quadrantem nemo iam tibi credit. See also MARTIAL V, 32; HORACE, Serm. II, 3, 93; JUVENAL 7, 8. For the quadrans as smallest denomination see CRAWFORD (1970), p. 40-41; CRAWFORD (1985), p. 177. 402 Cf. DUNCAN-JONES (1982), p. 236. 403 CICERO, Cael. 62; QUINTILIAN, Inst. VIII, 6, 53; PLUTARCH, Cic., 29, 4. 404 MARTIAL IV, 68: Inuitas centum quadrantibus et bene cenas. / Vt cenem inuitor, Sexte, an ut inuideam?

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not literally ‘100 false coins’.405 Finally, we may note the standard sum used to bequeath a maximum legatum partitionis of ‘100 nummi’ less than half the inheritance.406 How unlikely it is that the sum of 100 quadrantes should be taken literally becomes clear when we try to imagine the implications. Since a quadrans was not a monetary unit, it follows that we should have to imagine 100 small copper coins given from hand to hand. The patron would have to make sure that he had a large stock of small change at hand to distribute daily. Even if we were to accept that clients were paid a daily fee amounting to 100 quadrantes, such an arrangement would be absurd since the patron could give the same amount in the form of 6 sesterces and one quadrans or 1 denarius, 2 sesterces and one quadrans. Consequently, when Martial and Juvenal mention sportulae of 100 quadrantes, we should not think in terms of an exact sum of 6,25 sesterces, but in terms of a proverbial ‘bag of small change’.407 1.5 Motives behind substantial gifts. As a rule, gifts pretended to be disinterested, a pure response to sincere feelings of affection and goodwill. Of course, affection and goodwill (beneuolentia) were not always feigned. Atticus’s Donations to Cicero, Brutus and Marius the younger surely belong in this category, since Atticus took great risks by making them. However, as we saw in our chapter on the moral matrix of friendship, to the Roman mind affection and goodwill cannot be dissociated from gratia and fides. As expressions of affection and goodwill, gifts also reflected fides and gratia. That is to say, gifts were also a social obligation (officium). The acknowledgement of this obligation was socially prescribed and subject to social pressures. Friendship required help in times of need. A friend in need is a friend indeed, therefore, to refuse help to a friend in need is an act of betrayal. The very fact that the code of patronage and liberalitas explicitly mentioned financial help to friends, patrons and clients in particular situations (debts, fines, kidnapping, providing dowries) is illustrative of the social nature of the personal obligation to

405

MARTIAL X, 74; cf. PLAUTUS, Cas. 248; Trin. 962; Most. 892. CICERO, Leg. 2, 53 (devised by the jurist Scaevola (the pontifex)). 407 Public sportulae for the lower classes were often 4 sesterces a head, sometimes less (1-2 sesterces) sometimes more (8-12), but these were exceptional handouts, not daily allowances. See MROZEK (1975), p. 97-102. 406

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make gifts on these occasions. In many cases affection and goodwill were subservient to honour and prestige (existimatio) as motivations for gift-giving. So gifts could be made because the benefactor felt he had an obligation (officium) to do so, for example, to help a friend in need. Cicero’s support of Montanus clearly classifies as such, since Cicero himself explains to Atticus that the support ‘pertained to his obligations’ (pertinet ad officium nostrum) toward Montanus.408 Pliny’s gifts to Calvina and to Quintilianus’s daughter as well may be considered as acknowledgements of a social obligation, since neither of the women seems to have had much to offer in return.409 A number of Donations were made in response to a defence in court, without becoming ‘payments’ in a strictly economic sense. Thus Restitutus in Martial received numerous, usually small, gifts from his clients in court.410 Papirius Paetus’s gift of a library to Cicero may also have been donated as a token of gratia for a defence in court.411 Cicero counted on his amici to support his wife Terentia financially while he was in exile and after his return he again appealed to them to for help to repay his brother Quintus.412 The social nature of the obligation to give, was deeply rooted in the social identity of the Roman aristocrat. A notable was primarily a homo liberalis and by the time of the Late Republic this implied first and foremost generosity.413 Numerous Donations were meant to uphold the much-cherished image of liberalitas. A substantial Donation enhanced or upheld the giver’s social status. Scipio’s early payment of the dowries of his adoptive sisters could be classified as such a gift. Neither his brothers in law, nor anybody else had expected him to make such a generous offer. Consequently, there was no social pressure to act as he did.414 The numerous gifts to Martial himself and to other poets mentioned in Martial’s epigrams and the gifts to other poets like Horace also belong in this category. By patronising the arts (and sciences) Roman notables displayed themselves not only as cultivated persons, but also as true homines liberales. Moreover, through the talents of their protégés they could

408

CICERO, Att. XII, 52, 1. PLINY, Epist. II, 4 (Calvina); VI, 32 (Quintilianus). 410 MARTIAL X, 87. 411 CICERO, Att. I, 20, 7; II, 1, 12 (cf. supra p. 91 on the case). 412 CICERO, Fam. XIV, 1, 5; 2, 3; Att. IV, 2, 7 (Terentia); Q. fr. I, 3, 7; Att. IV, 3, 6 (Quintus). 413 Cf. VEYNE (1976), p. 17. On liberalitas see supra p. 35-37 and KLOFT (1970), p. 5-72. 414 POLYBIUS XXXI, 27, 1-16. See also supra p. 88 on the case. 409

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aspire to live on in the memory of men and so obtain immortality. Finally, the essence of sportula – clientelae was precisely the enhancement and confirmation of their patrons social position. Not coincidentally, the sportulae were given only at the salutatio, which together with adsectationes formed a veritable ritual to express and thus confirm and enhance the patron’s status. Of course, the principle also lay at the heart of euergetism, but this is beyond the scope of this work. I just want to mention Atticus’s gift/loan to Buthrotum to enable the city to pay the fine which Caesar had imposed on it.415 So in a sense the obligation that motivated a benefactor was not just directed towards the recipient whom he was expected to help. It was also directed towards himself and to society at large, in which he occupied a prominent position: ‘noblesse oblige’. By making substantial gifts one confirmed one’s status in society; it proved that a person was worthy to occupy an elevated position. Hence it increased or upheld that person’s dignitas. Not surprisingly the term dignitas was semantically derived from decet – ‘to be appropriate’. Dignitas required appropriate actions.416 However, Donations between friends, patrons and clients were first and foremost part of the reciprocal exchange around which these relations were construed. As such, they could be conceived as a fair ‘return’ for favours received, thus constituting the social obligation I discussed above, but they could also be seen as a ‘down payment’ on future services. The strong emphasis on the duty of gratia and the need to reciprocate meant that a Donation constituted an effective way to oblige the recipient to offer future services. By making a substantial gift, the giver thus ensured himself of future support from the recipient. Provided the recipient was a homo gratus, the Donation could be seen as a worthwhile investment. Martial sums up the dangers threatening one’s patrimony: cash can be stolen, houses can burn, debtors can default, crops can fail, ships can sink, but what you have given to a friend is wealth beyond danger.417

415

See VEYNE (1976). Cf. HELLEGOUARC’H (1963), p. 389-401. See also supra p. 45-48 on the meaning and significance of dignitas. 417 MARTIAL V, 42: Extra fortunam est quidquid donatur amicis: / Quas dederis, solas semper habebis opes (vv. 7-8). 416

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Of course, as any ethical norm, this rule was prone to manipulation. Accepting a gift implied accepting the obligation to return a gift or favour. Seneca warns, therefore, not to accept favours from everyone.418 According to Martial, gifts were like bait on an angler’s hook.419 Cato was well aware of this when he refused to accept gifts from Deiotarus, the tetrarch and later king of Galatia, and ordered his amici to do the same.420 ‘Whoever gives a lot, expects a lot in return’.421 Legacy hunters caught their prey by sending valuable gifts to their victims.422 One of Martial’s epigrams depicts a ruined legacy hunter, who fell victim to his own game when his prey kept changing his will. Every time the latter rewrote his ‘last’ will, the legacy hunter felt himself obliged to send new valuable gifts. In the end, his efforts cost him more than Croesus himself could have borne. 423 Cicero called upon his fellow senators in 43 to declare Antony a public enemy and warned them that no one should use his amicitia or family ties (cognatio) with Antony or the fact that Antony had given him money as an excuse for not agreeing with this motion.424 In fact Antony was merely following Caesar’s example, who had bound numerous senators by giving or lending them vast sums of money.425 The implication is that gifts were effective to ensure support and advantages, both in politics and in everyday life. This in itself is not very surprising because a gift – like any beneficium – did not come alone. As the expression of the desire to continue an existing relationship, it carried with it the promise of more.426 The ingratitude of the recipient would imply the renunciation of the reciprocity relation and, therefore, the loss of all future benefits, including the ultimate gift: a share of the inheritance. So calculation and personal advantage further upheld both the social and moral obligation to give and to reciprocate.

418

SENECA, Ben. II, 18, 2. MARTIAL V, 18, 7-10: Imitantur hamos dona: namque quis nescit, / Auidum uorata decipi scarum musca? / Quotiens amico diuiti nihil donat, / O Quintiane, liberalis est pauper; MARTIAL VI, 63, 5-6: Munera magna tamen misit. Sed misit in hamo; / Et piscatorem piscis amare potest?. See MARTIAL VIII, 2. 420 PLUTARCH, Cat. Min. 15. 421 MARTIAL V, 59: Quisquis magna dedit, uoluit sibi magna remitti. 422 MARTIAL IV, 56; V, 39; VI, 62; 63; IX, 9; 48; cf. also DIO CHRYSOSTOMUS, VII, 81-93 (Eub.). 423 MARTIAL V, 39. 424 CICERO, Phil.V, 6; cf. GELZER (1912), p. 91-102. 425 SHATZMAN (1975), p. 289-290, 297-304, 396. 426 Cf. MICHEL (1962), p. 454: ‘Avoir reçu est un titre à recevoir encore’. 419

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1.6 The economic importance of gift-exchange Gifts sustained a circulation of goods and could in some cases determine the economic position of the receivers. We should distinguish between occasional Donations of capital goods, regular or occasional Donations of consumer goods and ‘risk-buffering’ gifts. a) Capital goods.

I have already mentioned the hypothesis that patrons helped their clients by giving them a shop or some capital to start a business and we have also noted Rouland’s objection that – although the possibility cannot be excluded – we have no indications of such patronal assistance to clients.427 However, we have several examples of patrons donating productive land to their clients, or amici to their amici minores. Horace was given an estate by Maecenas, Volteius Mena a small farmstead by Philippus, Caelius Rufus a praedium rusticum by C. Scribonius Curio. Pompey gave a large piece of land in the neighbourhood of Rome to Balbus, who used it to build a suburban villa on (not a capital good). Although Balbus’s horti did not constitute in itself a capital good, suburban villas were often connected with productive estates. 428 It is impossible to estimate the importance of Donations of land, but Martial’s treatment of the theme indicates that it was a much appreciated and exceptional gift.429 Mena’s agellus cost 14,000 sesterces. It comprised at least one field and a vineyard. There were some small livestock (sheep and goats), an ox to plough the field and a horse on which to ride to town. Clearly, this was only a small farm from the viewpoint of a Roman knight like Horace, not from the perspective of the vast majority of peasants.430 Horace’s own estate was divided into 5 lots that were let out.431 The ‘little field’ Pliny gave to his nurse cost 100,000 sesterces – as much as the census qualification for the prima classis and for the members of many municipal councils.432 In all three cases we see that the

427

MARSH (1971), p. 32; SKYDSGAARD (1976); ROULAND (1979), p. 271-275. Cf. supra p. 81-82 for the cases in question. 429 Cf. WHITE (1978), p. 91. 430 HORACE, Epist. I, 7, 46-95. But how many farmers in Latin and Campania were poor peasants? 431 HORACE, Epist. I, 7; 14. 432 PLINY, Epist. VI, 3. On 100, 000 sesterces as minimum qualification for the prima classis and for many municipal council members see RATHBONE (1993), p. 129-132. 428

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estates given were large enough to live on comfortably. However, only in the case of Horace himself was the estate given large enough to permit him to achieve the honestum otium befitting a knight. Mena’s farm was too modest even to dispense with his personal labour.433 b) Allowances and life(style) support.

Amicitia and patronage, therefore, could provide an avenue for the acquisition of capital goods ensuring the recipient a more or less adequate income. By far the majority of gifts, however, consisted of money or movables, given on a more or less regular basis and constituting (potentially) an additional source of income. What was the particular importance of these gifts? To what extent did they determine the standard of living of the recipients? What was the global social and economic importance of such gifts? Who had access to the system? Opinions on the subject diverge. White believes that – at least insofar as the poets are concerned – the importance of gifts was small. Most gifts were symbolic and had only a small to marginal importance for the receivers, who in any case were expected to make return gifts of approximately equal value. White’s opinion is based mainly on the fact that poets generally belonged to the upper classes and were either equites or even senators. He also refers to a few passages in Seneca, Fronto and Cicero showing (according to White) that it was not customary to make valuable gifts.434 Saller has criticised White’s interpretations. It is true that Cicero condemned largitiones as detrimental to a man’s patrimony, but he did not imply that such largesse did not occur. Although Fronto’s letter to Appianus is a long plea against valuable gifts, he too was clearly reacting against a social reality of which he disapproved. Seneca mentions Donations of money only in the second category of services (beneficia utilia)435, but within this category they appear as the first example. Moreover, the distinction drawn by Seneca between services that are useful (beneficia utilia) and services that are pleasant (beneficia iucunda) and the fact that Donations of money are situated in the former category

433

Cf. also SALLER (1983), p. 248-251. WHITE (1978); CICERO, Off. II, 52; SENECA, Ben. I, 11; FRONTO, Epist. Graec. 5 (ed. HAINES (Loeb), p. 269-279). On poets belonging to the ordo equester see TAYLOR (1968). 435 The first category is that of the beneficia necessaria, the third that of the beneficia iucunda. 434

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indicates that the intended Donations were substantial enough to be accounted ‘useful’, i.e. they must have been substantial enough not to be discounted as merely symbolic .436 As far as the status of eques Romanus that most poets enjoyed is concerned, the problem is that one’s ‘needs’ depend on the social level on which one lives. Although the yearly income of 20,000 sesterces Horace and Martial enjoyed was undoubtedly a considerable sum for the vast majority of the Roman population, it was hardly sufficient to cover the expenses expected from a Roman knight frequenting senatorial circles in Rome. Consequently Martial, according to Saller, continued to depend on the traditional obligations of a client (officia clientium) – first and foremost the salutatio – to assure a continuous flow of money and goods in the form of patronal gifts, with which to uphold the standard of living expected from him. According to Saller, the very fact that Martial chose to continue enduring the ‘drudgery’ of the salutatio indicates that his lifestyle depended on it.437 The last argument is not very convincing, since the ‘burden of the salutatio’ had been a literary topos since Horace at least. Nevertheless, the list of Donations discussed earlier shows that White’s opinion that substantial Donations were only marginally important is unlikely to be correct. The list of substantial gifts is long. In exchange, the patrons did not expect counter favours of equal value, but poems glorifying and immortalising them and making them stand against their peers as protectors of the arts.438 It is harder to evaluate the global social and economic importance of life(style) supporting gifts. Saller concludes that ‘gift-exchange is so pervasive in human culture that its existence cannot in itself tell us anything very significant about Roman society. What is interesting is that the living standard of a number of people in Rome depended on gifts.’439 However, the living standard of how many people and to which social classes did these people belong? I will argue that although the number of people depending on gifts to maintain their standard of living may have been large, they did not form a cross-section of society. Two typical groups emerge from our sources: the cultural elite (or part of it) and what I will call the ‘Roman middle classes’. The truly poor were left out.

436

SALLER (1983); cf. also SALLER (1982), p. 123-124. SALLER (1983), p. 250-251. 438 Cf. also SALLER (1983), p. 256-257. 439 SALLER (1982), p. 123. 437

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(i) The cultural elite

Martial is not an isolated case. According to Juvenal, Statius too would have depended on financial support from his patrons to survive.440 In the opening lines of his book of Satires, Persius proclaimed that as parrots and magpies were taught our words by appealing to their belly, ‘master of arts and bestower of genius, skilful seeker of words withheld’, so ‘crow poets and magpie poetesses’ were brought by glittering gold ‘to chant Pegasian nectar’.441 Poets were not the only high-class clients to depend on patronal assistance. Cicero offered hospitality to the stoic philosopher Diodotus for years until he died in 61 leaving Cicero 100,000 sesterces.442 A freedman of Atticus, the grammarian Dionysius, was Cicero’s protégé for years, whose library he helped repair and maintain and whose children he educated.443 Calpurnius Piso Caesoninus was patron of the Epicurean philosopher Philodemus from Gadara (also befriended to Cicero).444 Conversely, Heraclides from Temnos tried in vain to make a fortune by teaching rhetoric to the children of senators in Rome.445 Pliny was patron to the philosopher Artemidorus, whose debts he paid.446 We don’t know what induced Pompey to bring Theophanes from Mitylene along with him to Rome, but Theophanes was remembered as Pompey’s personal historian.447 Along with poets, grammarians, orators and philosophers came to the capital where they tried to find a place in the amicitiae of the rich and mighty. Along with the poets they strove to obtain economic independence. Some – like Theophanes – achieved their

440 JUVENAL 7, 86-87: cum fregit subsellia uersu / esurit, intactam Paridi nisi uendit Agauen. See also Schol. ad Iuu. h.l.: salarium enim ob nimiam paupertatem ab eodem consequabatur. 441 PERSIUS Prol. 8-14: quis expediuit psittaco suum 'chaere' / picamque docuit nostra uerba conari? / magister artis ingenique largitor / uenter, negatas artifex sequi uoces. / quod si dolosi spes refulserit nummi, / coruos poetas et poetridas picas / cantare credas Pegaseium nectar. See also Schol. ad Pers. h.l. ostendit se primum coepisse causa uictus, ut salarium mereretur. 442 ARNIM (1905); GRIMAL (1986), p. 43, 46, 275; CARCOPINO (1947), p. 168-169 (wrongly assumes that Diodotus was a freedman of Cicero). See CICERO, Luc. 2, 115; Brut. 309, Tusc. Disp. 113; N. D. 1, 7, 1; Att. II, 20, 6; Fam. XIII, 16, 4. 443 Cf. TREGGIARI (1969), p. 119-121; PEREZ (1981), p. 191, 193-194 444 PHILIPPSON (1938); SIRINELLI (1993), p. 178. 445 CICERO, Flacc. 402-51. See ZEHNACKER (1979). 446 ARNIM (1896); SHERWIN WHITE (1966), p. 239-240. 447 LAQUEUR (1934; NICOLET (1966-1974), p. 988; SUOLAHTI (1955), p. 269; BROUGHTON (1951-1986) II, p. 284; DE LA VILLE DE MIRMONT (1905), p. 165-206

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goal with the help of their patron, while others remained dependants for the rest of their lives. The honestum otium that the cultural elite strove for lay at the end of a long career and could generally be attained only through the assiduous assistance of a patron.448 Only the orators could hope to build an independent career as lawyers. It would seem, therefore, that the intellectual and cultural elite largely depended on patronage for their economic position. This is not to say that they were fettered to their patrons. At least the most gifted among them, like Horace or Martial, had no trouble finding other sponsors and protectors if necessary. In a way, their talent guaranteed their independence. But, as long as they did not possess enough land or wealth to assure them the honestum otium they desired, they depended on patronage and friendship to maintain their standard of living. Thus we might say that although they did not depend on a particular patron or amicus magnus, they did depend on patronage and friendship. Nevertheless, this cultural elite –, however, important it may have been for our knowledge of the Ancient World – represented only a tiny fraction of society. What about the rest of the population? (ii) Sportula-clients

This brings us back to the sportula-clients – the great mass of little clients whose main obligation and contribution to the relation with their patron consisted of daily salutations (salutationes), escorts (adsectationes) and various small services in exchange for small gifts of money, utensils or commodities. I have already mentioned my scepticism towards daily sportulae of a standard sum connected with the salutatio. Nevertheless, it is beyond doubt that at least some clients and ‘minor friends’ lived off the generosity of their patrons and Martial’s and Juvenal’s sportulae may be considered a caricature of this generosity.449 Patronal sportulae have long been considered fees for idleness and the clients who came for them were thought of as poor devils and ‘Schmarotzer der grossen Gesellschaft’ – parasites of high society.450

448

Except, of course, when they already belonged to the ordo equester or senatorius, like Cicero, Pliny, Seneca and Tacitus. On literary and cultural patronage see WHITE (1975); WHITE (1978); WHITE (1982); WHITE (1993) (see p. 211-222 for a list of Latin poets and their social status); GIBSON (1995); GOLD (1982); SALLER (1983); VAN HEMELRIJK (1999), p. 97-145. 449 See COLUMELLA, R.R. praef. 9 and SENECA, Dial. X, 14, 3. (Breu. Vit.). 450 VON PREMERSTEIN (1937), p. 116.

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Le Gall opposes this interpretation and tries to show that the average sportula did not constitute a sufficient alternative income.451 Rouland too asserts that the average sportula was not enough to live on. ‘Ni le frumentationes ni les congiaires, ni la sportule, ni même ces trois ressources additionnées ne peuvent constituter à elles seules une source de revenus suffisante’.452 However, a person’s need for money can only be measured by his expenses and these in turn depend not just on his physical needs but are determined to a large extent by his social position. In this respect, Rouland’s treatment of the economic aspects of patronal sportulae is not convincing and follows almost entirely the assertions of Martial and Juvenal. Le Gall estimates the number of beneficiaries at a maximum of 135,000 in Rome itself. Rouland notes that the group of patrons must have been limited, since only a few were able to distribute 100 quadrantes a day to a large number of clients.453 Although the sum of 100 quadrantes, in my view, is merely symbolic – making the argument meaningless – the aggregated potential of smaller clientelae should not be underestimated. If we assume, for example, that the 5% richest families each supported an average of only five poor families, then patronage had the potential of offering social support to a quarter of the population. Such figures are meaningless in themselves, but the argument does lead us to another important question. Who were these ‘potential x %’, or putting it differently: did Roman patronage ever incline to fulfil its potential role as a social security system? Although I believe that the standard sum of 100 quadrantes for a daily sportula is fictitious, as a standard symbolic sum it does provide us with some information on the living standard of those who were deemed ‘poor’ in the eyes of Martial and Juvenal. Would a sum of 6,25 sesterces a day have been considered small change by every client? What does the sum represent in terms of purchasing power? Six sesterces and one as a day imply a maximum of 2281,25 sesterces a year, although we should probably account for a lesser number of salutationes in reality. This is well above what Frier termed subsistence

451

LE GALL (1966); LE GALL (1972). ROULAND (1979), p. 549; ROULAND (1981), p. 270-273. 453 LE GALL (1972), p. 272; ROULAND (1979), p. 548, n. 313. 452

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annuities.454 Since most clients tried to have as many patrons as possible, we would have to multiply this amount by the number of patrons a client courted. Hopkins has estimated minimum annual consumption at subsistence level at about 250 kg. of wheat equivalent. The price of grain in pre-industrial society was, of course, notoriously unstable, but a price of 2-4 sesterces per modius (approximately 6.5 kg.) seems to have been considered normal throughout Italy during the Late Republic and Early Empire. Prices in Rome were considerably higher and are estimated by Duncan-Jones at 6-8 sesterces per modius in normal years. This would imply a theoretical minimum subsistence income in monetary terms in Italy outside of Rome ranging from approximately 76-152 sesterces to 229-305 sesterces in Rome itself. Prell estimates the subsistence needs of a family of four (with two children) in Rome at a minimum of 876 sesterces a year. However, this was living on the edge of starvation, well below any poverty threshold imaginable. Mrozek estimates average expenditure for food in Pompeii at about 730 sesterces per adult, a quarter of which would have been for bread.455 Trajan’s alimenta arrangement ranged from 10 sesterces a month for illegitimate girls to 16 sesterces a month for legitimate boys. Private alimenta arrangements ranged from 16 sesterces a month for girls to 20 sesterces for boys. A common legionary soldier received 900 sesterces a year since Caesar. Domitian raised army pay for common legionaries to 1200 sesterces a year. Costs for food, clothing and equipment were deducted from this sum.456 Pliny the Younger probably paid the freedmen in his service 70-85 sesterces a month (840- 1020 sesterces a year).457 In the Digest, we find monthly wages ranging from 40-83 sesterces (480-996 sesterces a year).458 The slaves of the familia publica responsible for the

454

FRIER (1993), p. 230. Frier’s largest ‘subsistence’ annuity is 1000 sesterces (Dig. XXXIV, 1, 20,

pr.). 455

HOPKINS (1984), p. 118; DUNCAN-JONES (1982), p. 144-147, 345; PRELL (1997), p. 189; MROZEK (1975), p. 27-36. For general estimates of purchasing power and the cost of living see PRELL (1997), p. 171-212; FREYBERG (1980), p. 84-89; DUNCAN-JONES (1978). 456 On army pay see GABBA (1978); JAHN (1984); SPEIDEL (1973); SPEIDEL (1992) 457 The figure may be inferred from the fund of 1, 866, 666 sesterces he had intended to set up in his will for the alimenta of his freedmen: CIL V, 5262 (= ILS 2927); DUNCAN-JONES (1982), p. 29-30 458 DUNCAN-JONES (1982), p. 144-147. See also Dig. XXXIII, 1, 13, pr. (Scaevola): 600 sesterces a year for a procurator; Dig. XXXIII, 1, 10, pr. (Papinianus): 1000 sesterces a year plus free lodging for a procurator.

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water supply in Rome made about 1000 sesterces a year.459 Inscriptions mention daily wages ranging from 1-6.5 sesterces, depending on the qualifications of the workers.460 According to Cicero, an unskilled hired labourer could make 3 sesterces a day. At the time there were at least 48 fixed public holidays to which each year some extra days were added for special occasions, implying a maximum urban working year of approximately 300 days and, therefore, a yearly income of about 900 sesterces (provided, of course, our labourer was never without a job).461 MacMullen believes that the large majority of the population of Rome under the Early Empire made less than 2000 sesterces a year.462 The inevitable conclusion is that 100 quadrantes a day was only a small sum from the perspective of the upper classes, to which the poets belonged. As we saw, most poets we know belonged to the ordo equester implying a property worth at least 400,000 sesterces, which would guarantee them – in normal years – an income of at least 20,000 sesterces a year.463 One hundred quadrantes a day was certainly no ‘small change’ to the average Roman. Outside the capital, where life was two to four times less expensive, the sum had a purchasing power beyond the reach of ordinary people. If we take the benefits in kind that clients received from their patrons into account – such as clothes, food, kitchenware, and so forth – and the possibility for clients to have more than one patron, it becomes clear that a standard fee of 100 quadrantes a day would have represented a handsome income even for most of the urban residents of Rome. If the clients in question had a small business of their own and if they were on the official register for free grain, their total income would be easily fivefold that of the majority of their fellow-citizens. Consequently, those deemed ‘poor’ clients by Martial and Juvenal were only ‘poor’ from the perspective of the aristocracy, not from that of the common people.

459

Cf. DUNCAN-JONES (1982), p. 73. E.g. CIL IV, 4000 (Pompeii, 1.25 sesterces), IV, 6877 (Pompeii, 4 sesterces); MROZEK (1975), p. 74-75; DUNCAN-JONES (1982), p. 10-12. 461 CICERO, Rosc. Com. 28.On holidays see HARMON (1998), p. 475-476; MICHELS (1967), p. 69-83; DE ROBERTIS (1963), p. 200-211. 462 MACMULLEN (1974), p. 120. 463 Cf. WHITE (1978), p. 88-89; NICOLET (1966-1974), p. 444-456; TAYLOR (1968). See WHITE (1993), p. 211-222 for a list of all known poets with their social status. Compare Suetonius’s anecdote about the misery 40 aurei (4000 sesterces) Tiberius would have given to Claudius (SUETONIUS, Cl. 5, 1). 460

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This should not surprise us. Patronage is by definition a relationship between unequal partners, but the patron’s favours were no charity. Clients were expected to reciprocate. The poorest were thereby almost inevitably excluded.464 If we are to believe Martial and Juvenal, the gifts that clients were expected to offer their patrons were by no means only symbolic (cf. supra p. 79-82). The lex Publicia de cereis and the lex Cincia de donis et muneribus confirm that clients were pressed to make valuable gifts to their patrons before the latter could be persuaded to grant them their protection. Nevertheless, we have a number of indications that persons from the lower classes could have powerful patrons. Juvenal claims that some clients needed sportulae to buy food, clothing and shoes.465 Martial mentions a client who had starved because he got only one sportula a day.466 Obviously both poets are painting a caricature of reality, but their verses do point towards the existence of a lower grade of clients depending on their patrons for bare necessities. According to Cicero, it was a service to the state to relieve the poor (locupletare tenuiores).467 These amici tenues formed the escort (adsectatio) following a patron through the streets and to the forum, which, according to Cicero, was the only way in which they could show gratitude.468 However, just how poor were these amici tenues? Cicero claims that they were not prevented by occupations (occupationes) of their own from devoting their time to their patrons. Can we thus infer that they were unemployed and depended for their income exclusively on patronal assistance? Occupatio is a vague term. Seneca uses it in connection with ‘liberal professions’ (artes liberales) such as medicine, teaching or advocacy. The income derived from these is opposed to income derived from nonliberal professions (merces meriti), for instance, that of grain merchant.469 Cicero usually uses the term to indicate actions with a political or at least a public nature.470

464

cf. CLOUD (1989), p. 210. JUVENAL 1, 117-1222. See contra CLOUD (1989), p. 210: ‘an historically false picture’. 466 MARTIAL I, 80. 467 CICERO, Off. II, 63. 468 CICERO, Mur. 70-71. 469 SENECA, Ben. VI, 15, 2. 470 For examples see LEWIS C. T. & SHORT C, A Latin dictionary, Oxford, 1966, p. 1252 (s.v.). 465

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The qualification ‘poor’ (pauper) was a very subjective and vague term that was used very loosely by Roman nobles to indicate almost anyone not belonging to at least the prima classis.471 As far as we can tell, most pauperes in Martial or Juvenal were anything but poor by our standards. The pauper Gaurus mentioned in Martial had property worth 300,000 sesterces.472 Horace and Martial call themselves pauper although both belonged to the ordo equester.473 Salutationes and adsectationes enhanced a patron’s honour, yet it was hardly honourable to be surrounded by beggars. According to the satirists, patrons expected their clients to show deference at the salutatio and adsectatio among other things by wearing a respectable toga. It is true that these togas were a standard gift of patrons to their clients, but the implication is clear; patrons wanted to be surrounded by respectable clients with a decent background. 474 It was not just the number of clients that performed the salutatio and adsectatio, but also their social position that determined the patron’s status.475 Accordingly, Juvenal cynically – and not without exaggeration – described how praetors and tribunes scrambled in vain at the salutatio to get their sportulae, while a freedman richer than they rushed by to be received first.476 Tacitus distinguished that part of the people who were righteous and attached to the houses of the great (integra et magnis domibus adnexa) from the sordid plebs (plebs sordida) who indulged in games and plays. The distinction implies that those who were attached to the nobility enjoyed a certain respectability that was incompatible with the status of – what we would call – ‘paupers’.477 Plautus already claimed that patrons preferred to have wealthy villains as clients rather than honest poor.478 Cicero voiced the same idea.

471

i.e. having property worth at least 100, 000 sesterces. See PRELL (1997), p. 44-58; FINLEY (1973), p. 40. On Juvenal’s ‘poor’ clients see MARACHE (1980). 472 MARTIAL IV, 67. 473 MARTIAL V, 18; HORACE, Carm. II, 18, 10. 474 For togae as gifts see MARTIAL VIII, 28; IX, 49; X, 73. 475 Cf. ROULAND (1979), p. 267-268. 476 JUVENAL 1, 95-122. 477 TACITUS, Hist. I, 4. Note that sordida plebs does not imply unemployment. Neither does their devotion to games and plays (circo ac theatris sueta) mean that they had no other occupations. (The games were given on holidays.) It merely denounces their senseless devotion towards the emperor who gave the games and plays. See ROULAND (1979), p. 538-543; contra VAN BERCHEM (1939), p. 55. On the qualification sordidus (typical for dishonourable professions) see also VEYNE (1976), p. 696, CICERO, Off. I, 150; Dig. L, 14, 3. 478 PLAUTUS, Men. 571-598.

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Although it was certainly morally preferable to have an honest poor man as a client than a rich good-for-nothing, most people nevertheless preferred to gratify those who had something to offer in return.479 Everything indicates, therefore, that the poorest in Roman society rarely – if ever – enjoyed the benefits of patronage, because they rarely – if ever – had anything to offer in return. The amici tenuiores Cicero refers to are not those who did not have any income of their own, but those who had to work for their living and perhaps even those who could just afford one or two slaves to do the work for them. Mena the auctioneer (praeco) may be accounted one of them (cf. supra p. 103). They are the true ‘middle class’ of ancient Rome; the people we find in numerous collegia in different parts of the Empire, those rich enough to have left us their epitaphs recording their names and sometimes their ages and professions, but whose achievements were too insignificant to be remembered.480 The poorest in Roman society continue to elude us. They lived from begging, occasional jobs, crime and prostitution, occasionally leaving faint traces but no faces.481 c) Gifts as responses to crisis and gift-exchange as a risk buffering institution.

When we look at the long list of gifts surveyed earlier it becomes clear that a considerable number of important gifts were forms of aid to those in need or Donations compensating losses incurred. The ethics of the gift provide partners in a reciprocity relationship with a safety net to fall back on in difficult times. As such the Roman rules surrounding gifts fit perfectly in with one of the core functions of reciprocity relations: the creation of areas of trust and solidarity.482 All social classes enjoyed this aspect of amicitia and patronage, since it was inherent in these relations themselves.

479

CICERO, 2, 69. ‘Middle class’ is of course a term loaded with anachronisms (what about the slaves, the freedmen, the peregrines, the ‘orders’ and so forth ?). Nevertheless it has some use, in my view, to denote all those families and individuals – whatever their legal or social status – who lived well above poverty level (however defined in Roman terms), but who did not own enough property to live without working. However, I wouldn’t argue with readers who don’t agree. Suffice to have explained my motives. 481 Cf. PRELL (1997), p. 68-78; BOLKESTEIN (1939), p. 202-214, 337-341; HANDS (1968), p. 46-47. 482 Cf. GALLANT (1991), p. 143-169; GREGORY (1975), p. 83; EISENSTADT & RONIGER (1984), p. 294-301; BOISSEVAIN (1966), p. 21-24. 480

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The most recognisable attestation of gift-exchange as a risk insurance mechanism is formed by the Donations to patrons whose houses were destroyed by fire. Payments of debts of amici offer another example. Conversely, risk-insurance was undoubtedly one of the prime motives behind the ‘investment’ of substantial gifts (and other resources and services) in amicitiae. Although, as we said before, the poorest in Roman society did not generally have a patron to protect them, patronal assistance could be crucial to prevent ‘middle class’ families from sinking into poverty. 483 The references by Cicero, Martial and Tacitus reviewed above indicate that there existed a group of people – consisting both of freedmen and freeborn – who counted on patronage for economic safety without living in poverty or being dependent on a daily allowance. Just how large this group was is impossible to make out. Although potentially it could easily have made up a quarter of the population, it is likely to have been considerably smaller, given the preference for upper class clients. These were people with their own modest income (from which they could, for instance, buy small gifts on the occasion of the Saturnalia). At times of crisis, however, (shortages of grain, death of a breadwinner, fire and so forth) they could turn to their patroni for help. Who had access to this privileged group? Since amicitia and patronage were private and informal relations, access to them was theoretically free. Anyone could place himself in the fides of another, but anyone could refuse to accept another into his fides. Volteius Mena the auctioneer ended up in Marcius Philippus’s clientela, but it was Philippus who chose him and not the other way around. The group maintained itself partly because patronage was a hereditary relationship. Indirectly, manumissio was probably a second source, assuming that the children of freedmen (themselves freeborn) could – at least if they wished – appeal to their father’s patron (or his descendants). A well-attested way to enter a clientela was through recommendation by a friend of the patron. Protégés themselves could become brokers, mediating access to their patrons. A client could make a personal ‘career’ in

483

Note however that, according to the Digest, patrons were not legally required to offer assistence in order to prevent clients from falling into poverty. (I would like to thank professor Saller’s for this remark). Patron-client relations are conspicuous by their absence in the Digest (see SALLER (1989), p. 50-51).

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such informal hierarchies.484 Hypothetically, collegia and other organisations that were patronised as such may have provided an avenue to the personal clientelae, but there is nothing – to my knowledge – to substantiate this hypothesis. Again it appears that chances were very much against the poorest gaining access to the economic and social support of patronage. Many were undoubtedly prevented from sinking into poverty at various times of their lives thanks to an intervention by their patroni, but few ever succeeded in breaking loose from poverty thanks to the aid of a patron. Before a prospective client gained access to the salutatio meritoria of a noble patron, he had to travel a long and winding road negotiating with clients, protégés, friends of friends and finally friends and servants of the patron in question, each demanding his reward.

484

Cf. DENIAUX (1993a), p. 6-7; SALLER (1982), p. 4-5, 74-75; BLOK (1969a), p. 373; BOISSEVAIN (1969). See also infra chapter III,3 on the role of recommendations. On patronage as a hereditary relationship cf. supra p. 53, 57.

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LOANS AND SURETIES

Modern scholars generally consider interest-free loans and sureties as an almost self-evident ‘economic’ aspect of amicitia and patronage. It is true that these two obligations were the cornerstones of what we may call the system of financial officia. However, it would be wrong to reduce the latter to merely these two basic obligations. I will try to show that the importance of amicitia to the financial system transcended the level of interest-free loans, whose relative weight and range within the system was – as we will see – rather modest. Relations based on fides – Nah- und Treuverhältnisse as Gelzer put it – however, influenced the system in many more ways. Credit is crucial in any developed or developing economy. The intensity of the circulation of goods and services can be raised to a level that would be unthinkable without it. This is true of modern economies, but also – and perhaps even more – of pre-industrial economies because these were confronted with a very inelastic money supply, consisting virtually exclusively of state minted coins with a chronical lack of small denominations supplemented by a limited supply of bullion, most of which was tied up in decorative objects in temples and private houses. 485 Credit has an often-unappreciated potential to boost the velocity of circulation of money. The trader whose sales were paid on the spot by the argentarii advancing the money to the buyers could buy a new cargo immediately. Conversely, the retail dealers buying the trader’s products could start selling their goods before they had to pay the argentarius.486 Research on the role of Roman banks and credit so far has focused too much on the presence or absence of productive or investment credit, neglecting the importance of day to day consumer credit in retail trade

485 PEKARY (1980); CRAWFORD (970); CRAWFORD (1982); GOLDSMITH (1987), p. 36-37. Contra see MROZEK (1985) who fails to make a distinction between debt-bonds and money. 486 Usually a short time after the money had been advanced. On the role of the argentarii in the Roman economy see ANDREAU (1974); ANDREAU (1987), passim. Specifically on the importance of their financing retail traders see ANDREAU (1999), p. 150.

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and in the lower strata of business life. Mayhew’s description of Late Medieval and Early Modern England as a ‘credit based economy’ characterised by ‘high velocity of circulation figures, but slow physical movement of coin’ is relevant in this respect.487 However, ‘credit’ is not a simple phenomenon and neither are the institutions extending and supporting it. The fundamental problem of any credit system is the problem of trust.488 Normally, a creditor is only prepared to lend money because he expects to be paid back after some time. This implies a situation of functional trust that cannot be taken for granted. Complicating the problem of trust is the anonymity characteristic of relations in a developed market economy. In order to develop beyond their most basic level, financial markets need to solve the problem of anonymity. Modern economies solve the problems of trust and anonymity by depersonalising the concept of debt by legally and ideologically separating it from both the personality of and the relationship between creditor and debtor. The ideologically isolated debt-relation between creditor and debtor is then placed in the hands of functionally designed institutions responsible for sanctioning trespasses, on of which is, naturally, failure by the debtor to repay the money owed. The necessary trust is thereby externalised and becomes a trust in the system of contracts, police and justice. The only relevant information for the creditor is the degree of solvency of the debtor. This doesn’t mean that the legal system is at all times operative. It rather serves ‘as a guide in cases of doubt and a norm of ultimate appeal’, but both creditor and debtor know they can rely on the legal system if necessary.489

487

MAYHEW (1995), p. 249-250; VERBOVEN (1997a), p. 42 (see here passim for the problem of money supply and velocity of circulation). See also SERVAIS (1994), p. 1393; FONTAINE (1994), p. 1386. See also MILLETT (1991), p. 219-220. For traces of credit based economies in twentieth century, see e.g. CAMPBELL (1964), p. 247. For a system of credit-based wages see RATHBONE (1991), p. 318-319. For the problem of monetization and the lack of small change see CRAWFORD (1968); CRAWFORD (1970); CRAWFORD (1971); CRAWFORD (1982); LO CASCIO (1981); PEKARY (1980); LIGT (1990-1991); FREYBERG (1980), p. 74-77, 90-93; GARA (1979); HOWGEGO (1992); MILLAR (1981); VERBOVEN (1997a). 488 Transaction cost economics defines the problem as the ‘honesty problem’. I here prefer the term ‘(functional) trust’ because it better reflects the Roman basic concept of fides underlying contracts in general and credit relations in particular. On the ‘honesty problem’ see GREIF (1989a), p. 19, 114-124 (and passim). 489 GREIF (1989a), p. 121.

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At the other end of the conceptual spectrum we find personalised credit set in a context of generalised or balanced reciprocity, where repayment of loans is guaranteed by a reciprocity relationship between creditor and debtor.490 Refusal to repay constitutes a violation of reciprocity obligations and of the basic trust and solidarity underlying the relationship. Not only is the relationship as such thereby ended; the reputation for moral integrity of the defrauding debtor is also severely damaged, compromising his other (potential) social relations. On the other hand, the creditor is expected to take into account the personal situation of his debtor. If the latter is unable to repay through no fault of his own, the creditor has no moral right to demand repayment. In this kind of credit relations, loans are easily transformed into gifts and credibility is more important than solvency. A third and more complex mechanism for the creation of situations of functional trust relies on the social and economic position of debtors. Certain professions and organisations can function only because of the trust they inspire, like the office of notary or deposit banks and generally all professions depending on credit. Reputation is an essential element here. If the debtor defrauds, he loses his reputation and thereby his source of income. The creditor places his trust not in the debtor’s person but in his social personality and in his self-interest in keeping his reputation intact. The efficiency of this mechanism should not be underestimated and often underlies formal credit systems depending on externalised trust. Braudel describes the crucial role played by trust in the international community of traders in Early Modern Europe. Those who did not abide by the implicit rules were shut out. Avner Greif studies the role of reputation in the Jewish Maghribi traders community in eleventh century Cairo and of the traders community in twelfth century Genoa.491 Both authors show how reputation was a condicio sine qua non for traders and financiers to work. Historically, the types of credit situations presented here are not mutually exclusive. They serve as an analytical framework and not as a

490 See MILLETT (1991), p. 24-52 (and passim) for a good analysis of such loans. On generalised and balanced reciprocity see SAHLINS (1972), p. 191-196. Note that repayment can – in some cases – be substituted by alternative services or resources offered by the debtor. 491 BRAUDEL (1988-1990) II, p. 133-137; GREIF (1986a); GREIF (1989b); GREIF (1991). See also e.g. ANDERSON (1972), p. 228.

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descriptive classification. The Roman credit system relied on contracts backed up by legal procedures from at least the fifth century BCE. Any kind of loan could – in principle at least – be enforced, even when there had been no formal contract made. Most loans were made through the formal (verbal) contract of a stipulatio, of which the terms and conditions were written down on wax tablets sealed by witnesses. Sureties or pledges commonly guaranteed the contracts made.492 Bankers and financial middlemen – as many faeneratores were – depended on their reputation for reliability to operate.493 This does not imply, however, that the Roman financial system solved its problems of trust and anonymity by depersonalising the concept of debt and placing it in the hands of specialised institutions and professions. Neither does it imply that reciprocal exchange systems were not operative. The Roman legal system left ample room for gratia. Proceedings in court were normally preceded by long negotiations and even the procedure in iure – before the praetor – was largely in the hands of the litigating parties. At every stage of this preliminary phase gratia and fides could be brought to bear on the case. Moreover, the Roman system of justice was very statusminded, so that generally a person of lower social rank who was not assisted by a more powerful patron stood little chance of winning his case against a socially superior opponent.494 From a bare contractual viewpoint, the Roman legal system was tortuous and in many cases unreliable.495 It seems legitimate, therefore, to ask what exactly the role of amicitia was – as a vehicle of reciprocity and trust – in the Roman financial system. We shall proceed by first looking at interest-free loans as beneficia and then gradually analyse the more general use of amicitia and patronage in loans and surety arrangements.

492

See for examples ANDREAU (1974); CAMODECA (1992); CAMODECA (1999); BOVE

(1984). 493

Cf.

e.g.

already

ISOCRATES, Trap. 2 on bankers: See also VERBOVEN (1993a), p. 86-87. 494 See KELLY (1966), passim; GARNSEY (1970), passim; COTTON (1986); BÜRGE (1995). 495 Deficiency of the legal system in contract enforceability was quite common in pre-industrial societies, see e.g. GREIF (1989), p. 120-124 (on medieval Cairo).

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1.7 Mutuum. Interest-free loans are generally considered a typical officium amicitiae.496 Latin originally had a special word for such loans, mutuum, to distinguish them from interest-bearing loans (faenus, uersura).497 According to Michel, the term originally meant an informal loan. After the lex Genucia (342) forbade the charging of interest and the lex Poetelia-Papiria (328) made the archaic contract of nexum unenforceable, mutuum was left as the only legal type of loan. The legal core of mutuum consisted of an obligatio re originating from the simple informal transfer of measurable goods with the evident intention of receiving an equal amount of the same kind of goods in return after a certain period of time.498 This meant that mutua as such were necessarily free of interest. However, probably already around the beginning of the third century BCE, it became customary to accompany the obligatio re with one or more stipulationes (i.e. obligationes uerbis) concerning terms and interest rates, thus transforming mutua into faenora.499 Significantly, by the Late Republic the term mutuum had become a general term denoting both loans with and without interest.500 The difference between loans and gifts in the context of amicitia and patronage is often small. Financial support is often referred to as a duty of friends, patrons and clients without specification about the kind of support that is intended, i.e. loans or gifts. Cicero felt obliged to pay the debt of his protégé L. Tullius Montanus: pertinet ad nostrum officium

496

MICHEL (1962), p. 538-539, 559; SALLER (1982), p. 120-122; SHATZMAN (1975), p. 75-83, 132-142; GELZER (1912), p. 91-102; VERBOVEN (1993a), p. 83-97; MILLETT (1991), p. 127-159 (and passim). 497 Cf. MICHEL (1962), p. 104-107; SHATZMAN (1975), p. 82; FRÜCHTL (1912), p. 47-48; BILLETER (1898), p. 140-141; NADJO (1989), p. 278-279; cf. e.g. Dig. III, 5, 37; NONIUS, p. 706 (ed. Lindsay); ibid. p. 439: Mutuum a fenore hoc distat quod mutuum sine usuris, fenus cum usuris sumitur. 498 GAIUS III, 90. For a thorough analysis of mutuum see MICHEL (1962), p. 103-127. On obligatio re and mutuum see also VAN OVEN (1948), p. 223-230; KASER (1955) I, p. 442-444; GIRARD (1911), p. 560-519. 499 Note that strictly speaking faenus refers not to the loans, but to the interest charged on it. See NADJO (1989), p. 294-295. 500 Cf. e.g. CICERO, Att. VIII, 6, 5; XV, 15, 3; Flacc. 46; 2 Verr. I, 10, 27; ASCONIUS, Corn. 50 (ed Clark); Ovid, Rem. Am. 561; GAIUS III, 156; Dig. XIV, 6, 1; XII, 1, 34, 1: praeses prouinciae mutuam pecuniam faenebrem sumere non prohibetur. Nevertheless, the distinction was never wholly lost, see e.g. Dig. XII, 1, 33.

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(Cicero, Att. XII,52,1).501 When Cicero wanted to get the financial support of Antonius Hybrida his ex colleague for the consulship of 63 , which he thought he was entitled to, he merely wrote: ‘If I were to expect from you the highest services (summa officia), no one should be surprised.’502 While he was in exile Cicero, wrote to his wife Terentia to be careful with her own patrimony: ‘if our friends remain duteous, money will not be lacking.’503 Cornelius Nepos describes Atticus’s financial support to Athens as an officium and a form of liberalitas.504 Financial support from friends and in-laws (adfines) was commonly considered to be self-evident. Plautus and Terence present mutua as a typical form of aid expected from amici.505 When Q. Axius pleaded with Cicero in 49 to give his son Gallius (adopted by a M. Gallius) a loan, Cicero felt obliged to comply, contrary to his own intentions: possemne aliter?506 Curtius Mithres’s resources were always at Cicero’s disposal: huius cum opera et fide, tum domo et re uti tamquam mea (Cicero, Fam. XIII,69,1). Cicero’s son excused himself towards Tiro – his father’s favourite freedman – for not having helped him financially in buying an estate and promised to back him up in the future, especially since he knew that the estate would be a common good for the all the Cicerones.507 When Pliny contemplated buying an estate, he took it for granted that his mother in law would lend him the necessary cash.508 Martial mocks people who bent over backwards to avoid giving an interestfree loan to a friend, thus confirming both the strength of the officium as such and the gap between ideology and social reality.509 A loan between friends could be wholly informal, which implied that no conditions (concerning interest, terms, sureties and so forth) could be

501

Cf. also CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1. CICERO, Fam. V, 5, 2: Ego si abs te summa officia desiderem, mirum nemini uideri debeat. 503 CICERO, Fam. XIV, 1, 5: Si erunt in officio amici, pecunia non deerit. 504 NEPOS, Att. 2, 4. 505 PLAUTUS, Trin. 756-762; Pseud. 8s0-84; 294-295; 733-734; 1051-1056; Pers. 5-6; 35-42; 118119; 255-271; Curc. 67-69; Asin. 243-248; TERENCE, Phorm. 299-303; 512-514; 703. Adfinitas could be quite large, see MOREAU (1990). 506 CICERO, Att. X, 15, 4. 507 CICERO, Fam. XIV, 21, 7: noli dubitare . quin te subleuaturus sim … praesertim cum sciam communem nobis emptum esse istum fundum. 508 PLINY, Epist. III, 19, 8: nec molestum erit mutuari; accipiam a socru, cuius arca non secus ac mea utor. 509 MARTIAL II, 30; cf. also MARTIAL II, 43; 44; III, 41; IV, 15; 67; 76; VI, 5; 20. 502

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stipulated. The difference between such informal mutua and gifts was small. In the case of emergencies, we find that a number of transactions started as gifts, but ended as loans or vice versa. Money (or gold) was given unconditionally, but with the tacit agreement that the recipient would repay the ‘gift’ if his situation returned to normal. We have already seen in our previous chapter how Q. Cicero, Atticus, Rabirius Postumus, Ateius Capito and other amici gave money to Cicero when he went into exile in 58 and how he counted on them to help his wife and children financially. There can be no doubt about it that this money was given unconditionally, but it is more than likely that Cicero later repaid at least part of it. As early as 57 – before his own financial resources had recovered from the blow – Cicero tried to repay his brother by borrowing again from his friends (subsidiis amicorum).510 The silver bowl which Antonius Creticus gave to a friend in need of money is probably another example of a gift-loan.511 After his return from exile, Cicero needed money to restore his heavily damaged properties. His house on the Palatine and villas in Tusculum and Formia had been burned. The senate had granted him financial compensation, but this covered only part of the necessary expenses.512 It was a matter of fact, in Cicero’s eyes, that Atticus would support him financially, but he did worry about the support from other friends who had already spent considerable sums on the campaign to recall him from exile.513 Nevertheless, by early 56 – hardly 5 months after his return in Rome – Cicero had already overcome most of his financial difficulties. Clearly, the amici had lived up to their obligations.514 Atticus supported Cicero again in 49-47, when the latter had joined Pompey in the fight against Caesar. At the same time, Cicero borrowed from others, among whom Cn. Sallustius with whom he had long standing friendship.515 Atticus’s financial support of Fulvia, Marc Antony’s

510

CICERO, Att. IV, 3, 6. PLUTARCH, Ant. 1. 512 2 million sesterces for the house on the Palatine, 500.000 for the Tusculanum, 250.000 for the Formianum (CICERO, Att. IV, 2, 5). See also SHATZMAN (1975), p. 404. 513 CICERO, Att. IV, 1, 3: (tuas facultates) nostras esse iudico. On the other amici see Att. IV, 2, 7. 514 Cf. CICERO, Q. fr.2, 5(4, 3-4), 1. See also Att. IV, 1, 3; 2, 7; 3, 6. 515 CICERO, Att. XI, 13, 4. On Cn. Sallustius’s amicitia with Cicero see CICERO, Fam. XIV, 4, 6: officio uincit omnis. After Pompey’s defeat Sallustius was himself desperately in need of money and Cicero asked Atticus to hand over the 30, 000 sesterces he had borrowed to Sallustius’s brother Publius. 511

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wife, must have been less to Cicero’s liking. She had bought an estate on credit and was unable to pay up. Atticus advanced her the money without charging interest or stipulating any other conditions (sine faenore sineque ulla stipulatione).516 The circumstances inducing Clodia to lend money to her lover Caelius Rufus were less dramatic, but he too was given the money unconditionally. According to Cicero, this testified to their exceptional intimacy (egregia familiaritas).517 Cato the Younger would have used an inheritance a cousin left him to give interest-free loans to friends.518 The case of P. Magius Chilo, a cliens and uetus amicus of M. Marcellus (cos. 51), is remarkable. As Marcellus and Cicero, Magius had fought in Pompey’s army and had lost everything after the defeat at Pharsalus. Cicero had stood surety for Magius, but all to no avail: soluendo enim non erat (Cicero, Att. XIII,10,3). Magius turned to Marcellus for help, undoubtedly in the form of a loan or a gift, but Marcellus – having lost at least part of his patrimony in the civil war himself – refused. Magius was furious and killed first Marcellus and then himself. Apparently, Magius thought he was entitled to Marcellus’s help, notwithstanding the latter’s own financial difficulties.519 The close connection between loans and gifts in the context of patronage and amicitia is further illustrated by Horace’s story of the auctioneer Volteius Mena, who ended up in the clientela of Marcius Philippus (cens. 86 BCE). Philippus gave his client 7000 sesterces and an interest-free loan of another 7000 sesterces to buy a modest farmstead in the neighbourhood of Rome.520 The link between gifts and interest-free loans could be used to cover up illegal gifts. This was the case with the ‘loan’ of 2 million sesterces that P. Sulla gave to Cicero in exchange for his defence in court. Aulus Gellius refers to the money as a ‘tacit loan’ (mutua tacita), which Cicero

516 NEPOS, Att. 9, 4-5. Nepos claimed it proved that Atticus was a friend of men and not of their fortune (‘honni soit qui mal y pense’). 517 CICERO, Cael. 31: Auro opus fuit; sumpsit a Clodia, sumpsit sine teste, habuit quamdiu uoluit. Maximum uideo signum cuiusdam egregiae familiaritatis. Cicero claimed Caelius needed the money to pay the rent of his appartment (10, 000 sesterces a year, Cael. 17). 518 PLUTARCH, Cat. Min. 6, 4. 519 See CICERO, Fam. IV, 12, 2; Att. XIII, 10, 3; LIVY Epit. 115; VALERIUS MAXIMUS IX, 11, 4. 520 HORACE, Epist. I, 7, 80-81: dum septem donat sestertia, mutua septem / promittit, persuadet uti mercetur agellum.

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needed to buy his new house on the Palatine. The term is intriguing: are we to understand tacita mutua in the sense of a discrete loan or in the sense of a loan not covered by any oral obligation (obligatio uerbis), i.e. by a stipulatio?521 The rest of the money needed to buy the Palatine house came from Antonius Hybrida, Cicero’s colleague in the consulship of 63. Although this transaction too was undoubtedly a gift, we may guess that outwardly it was presented – to those few who knew about it – as a mutuum.522 This was possible only because it was not unusual to rely on ‘friends’ to finance purchases meant to express and enhance one’s social status. About the same time as Cicero bought his Palatine house, the consul M. Valerius Messalla Niger borrowed from his amici to buy the house of P. Autronius Paetus on the Palatine Hill.523 Political loans were often without interest, because the pecuniary benefits of interest would not compensate for the political benefits of an interest-free loan. Political support served as a kind of pseudo-interest.524 Crassus was famous for the interest-free loans he gave to his amici.525 Caesar used the same strategy to increase his influence in the senate, giving both interest-free loans and loans at low interest rates.526 Curio and Aemilius Paulus are said to have received 10 and 36 million sesterces respectively.527 Whether the money was intended as a loan or as a gift is not clear. Cicero owed 800,000 sesterces to Caesar in 51 BCE on which he had to pay a low interest rate.528 Caesar’s debt to Pompey

521

GELLIUS XII, 12; CICERO, Att. I, 13, 3. Cf. CICERO, Att. I, 12, 1; 13, 6; 14, 7; Fam. V, 5, 2. 523 CICERO, Att. I, 13, 3: Messalla consul Autronianam domum emit HS centies trecies quater. ‘Quid id ad me?’ inquis. Tantum, quod ea emptione et nos bene emisse iudicati sumus et homines intellegere coeperunt licere amicorum facultatibus in emendo ad dignitatem aliquam peruenire. 524 Cf. GELZER (1912), p. 91-102; FREDERIKSEN (1966); SHATZMAN (1975), p. 116-142. 525 Cf. SALLUST, Cat. 48, 5; 48, 8; PLUTARCH, Crass. 3, 1; 7, 2. Note that Plutarch comments that Crassus was very strict in demanding punctual repayment, which implies stipulationes containing time limits. 526 SUETONIUS, Iul. 27, 1: omnibus uero circa eum atque etiam parte magna senatus gratuito aut leui faenore obstrictis. See also CICERO, Phil. II, 78; BENOEHR (1986b), p. 35-39. 527 For Curio see SHATZMAN (1975), p. 396-397. See VALERIUS MAXIMUS IX, 1, 6; SUETONIUS, Iul. 29, 1; PLUTARCH, Pomp. 58, 1; Ant. 5, 1; VELLEIUS PATERCULUS II, 48, 3-4; LUCANUS I, 269; IV, 819-820; APPIAN, B.C. II, 26; DIO XL, 60, 2; CICERO, Att. VI, 3, 4; for Aemilius Paullus see SHATZMAN (1975), p. 289-290. See PLUTARCH, Caes. 29, 3; Pomp. 58, 1; SUETONIUS, Iul. 29, 1; APPIAN, B.C. II, 26; DIO XL, 63, 2. 528 CICERO, Att.. IV, 19, 2; V, 1, 2; 4, 3; 5, 2; 6, 2; 9, 2; 10, 4; 13, 3; VII, 3, 11; 8, 5; Fam. I, 9, 1821. See also BENOEHR (1986b), p. 30-35; FRÜCHTL (1912), p. 72; ROYER (1967), p. 238; SHATZMAN (1975), p. 126-127; BARLOW (1978), p. 159; VERBOVEN (1993a), p. 86. 522

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in 50 is remarkable when seen in the light of the enormous sums of money Caesar gave and lent to his allies, but makes sense against the background of friendly loans common in the Late Republic between political allies. We can assume that the debt dated from the years when Caesar and Pompey were allies.529 Mutua were not only available to individuals. Atticus intervened to help Athens pay her debts in the eighties (or seventies) BCE, by borrowing the money needed in his own name and then lending it to the city without charging interest (neque usuram umquam ab iis acceperit). Like Crassus, however, Atticus insisted that the money had to be paid back punctually.530 In 45, he paid the fine which Caesar had imposed on the city of Buthrotum, but this was almost certainly meant as a gift.531 The common aspect of these loans and pseudo-loans is that they were presented as acts of kindness and obligation (beneficia / officia) that both arose from and had to give rise to gratia. Gratia served as a substitute for interest, because it had to be expressed in beneficia by the debtor towards his creditor.532 Although these beneficia were never determined in advance, they could far outweigh the pecuniary benefits of commercial interest rates. Of course, reality was not always so straightforward. Martial’s sarcasm concerning mutua cannot be taken literally, but it does indicate how individuals could manipulate the officia involved to get money they never intended to repay.533 Plautus was even more cynical: Whoever gives a mutuum will either lose his money or his friend.534 The representation of both authors reflects a reality in which amicitia and mutua were ideologically inseparable, but were not free from abuse and manipulation.

529

Cf. CICERO, Att. VI, 1, 25. NEPOS, Att. 2, 4. Nepos describes Atticus’s intervention clearly as an act of euergetism. Contra see PERLWITZ (1992), p. 42, who believes Atticus charged a modest interest rate. 531 Cf. CICERO, Att. XVI, 15a, 2-3. 532 See BÜRGE (1980), p. 132-133. 533 Cf. e.g. MARTIAL VI, 5. 534 PLAUTUS, Trin. 1051-1056: si quoi mutuom quid dederis, fit pro proprio perditum: / quom repetas, inimicum amicum beneficio inuenias tuo. / si mage exigere occupias, duarum rerum exoritur optio: / uel illud quod credideris perdas, uel illum amicum amiseris. / (Ch.) Meus est hic quidem Stasimus seruos. (S.) Nam ego talentum mutuom / quoi dederam, talento inimicum mi emi, amicum uendidi. 530

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1.8 Faenus. Mutuum and faenus were generally considered each other’s opposites. To extend mutua was an obligation (officium) inherent in Roman friendship. As such mutua constituted beneficia, gave rise to gratia and bound the debtor to his creditor even after the actual debt had been repaid. Faenus, on the other hand, was the ideological opposite of a beneficium because the creditor was not motivated by goodwill (benignitas, beneuolentia) towards the debtor but acted solely with an eye to his own advantage. Accordingly, once capital and interest had been repaid, the debtor was free from all obligations towards his creditor.535 The dichotomy has been adopted by most scholars today, who generally contrast interest-free or cheap loans with commercial lending at interest.536 Nevertheless, it would be a mistake to think that amicitia (or patronage) between creditor and debtor was incompatible with charging substantial interest. a) A preference for friends.

When it looked as if Cicero would not get the money promised by Antonius Hybrida, he contemplated turning to faeneratores. The first person Cicero thought of was Q. Caecilius, Atticus’s maternal uncle who was a notorious usurer, but Caecilius refused to lend at less than 12% interest even to his relatives, even though – according to Cicero – money could easily be found at 6%. Three other candidates offered better terms: Q. Axius, Q. Considius and Q. Selicius.537 At least two of these three

535

Cf. e.g. CICERO, Fin. II, 115; Off. II, 69; Planc. 68; SENECA, Ben. I, 1, 9; II, 2, 3; 18, 5; III, 15, 4; VI, 13, 3. 536 Cf. e.g. NONIUS, p. 439 (ed. Lindsay) (cited supra p. 120); MILLETT (1991), p. 99, 138, 147, 160; SHATZMAN (1975), p. 82-83; BÜRGE (1980), p. 124, 127. On faeneratio see i.a. BARLOW (1978), passim; MASSELLI (1986), passim; VERBOVEN (1993a), p. 80-83. Modern research on faeneratio has been hindered by much confusion between faeneratio (‘lending at interest’) and res argentaria (‘banking’), cf. ANDREAU (1978); ANDREAU (1983); ANDREAU (1985); ANDREAU (1987), p. 3-57; PETRUCCI (1991). For the situation in the Greek world see BOGAERT (1968), p. 290291; COHEN (1992), p. 44-46. On the origin of interest see MILLETT (1991), p. 91-108. On interest rates in the ancient world in general see BILLETER (1898); ANDREAU (1999), p. 90-99. 537 CICERO, Att. I, 12, 1; Fam. V, 6, 2 (money available at 6 %). ANDREAU (1999), p. 95 suggests that interest rates may have risen between the writing of Fam. V, 5 and the writing of Att. I, 12. However SHACKLETON BAILEY (1977a) I, p. 282-283 makes a good case arguing that the two letters were written with only a few days interval (ca. 23 December and 1 January). So the interest rates would have doubled in barely one week’s time. Surely, Cicero would not have failed to have mentioned such an extraordinary event to Atticus– as e.g. he did in 54 when political manoeuvring caused interest rates to double from 4 to 8 percent (Att. IV, 15, 7; Q. fr. II, 15(14), 4). On Q. Caecilius see NICOLET (19661974), p. 809-810; MASELLI (1986), p. 52; ANDREAU (1978), p. 55. Considius was an important faenerator (and senatorial backbencher), who had 15 million sesterces in faenora at the time of the Catilinarian crisis (cf. infra p. 166). On the role of the three financiers see ANDREAU (1978), p. 55-56.

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were directly or indirectly amici of Cicero. A life-long familiaritas existed between Cicero and Q. Axius538, while Q. Selicius was a protégé of Lentulus Spinther, who was himself an amicus of Cicero.539 Although usura may have been considered reprehensible, it was nevertheless a common and acceptable routine to charge interest even to friends and relatives. When Cicero wanted to buy gardens (horti) from P. Silius – with whom he shared a common friend, Aelius Lamia, and with whom he was on friendly terms himself – he took it for granted that if Silius agreed to sell the gardens on credit, interest would have to be paid.540 Whenever a member of the aristocracy had to turn to faeneratores, he preferred to turn to financiers with whom he (or one of his amici of relatives) had an amicitia. Cicero’s half-ironic remark about Q. Caecilius (‘he wouldn’t lend to his own relatives at less than 1% a month’), indicates that close personal relations could be helpful in obtaining better terms. Millett described the mechanism as the ‘social distance theory’: the more intimate the personal relation between creditor and debtor, the lower the interest.541 The Roman credit system resembled – in this aspect at least – the credit systems of several countries and regions in Early Modern Europe. Peter Spufford shows similar mechanisms at work in 17th century rural England, Ulrich Pfister does the same for the Swiss countryside from the

538 There were two books of letters between Axius and Cicero – now lost – circulating in the Early Empire. On Axius and his relation with Cicero see SHATZMAN (1975), p. 308; NICOLET (19661974), p. 800-801; WISEMAN (1971), p. 216, n. 61; CICERO, Att. III, 15, 3; IV, 15, 5; V, 21, 2; X, 8, 2; 11, 2; 13, 2; 15, 4; XII, 1, 2; GELLIUS VI, 3, 10; SUETONIUS, Iul. 9; NONIUS, p. 509 (Ed. Lindsay). 539 On Selicius and his relations with Lentulus see CICERO, Fam. I, 5a, 4. On Cicero’s amicitia with Lentulus see Att. III, 24, 2; Q.fr. I, 2, 16; Fam. I, 9, 24; 3, 1; DENIAUX (1993a), p. 99. 540 Cf. CICERO, Att. XII, 22, 3; 23, 1, 3; 25, 1. On the purchase of the horti (the term is often used to denote suburban villas, but not here) see CICERO, Att. XII, 22, 3; 23, 1, 3; 25, 1; 27, 1; 29, 1-2; 33, 1; 30, 1; 31, 1; 34, 3; 41, 3; 44, 2; 52, 2; XIII, 5, 1; 7. On Cicero’s amicitia with Silius see Fam. VII, 21; 13, 62.1-2. On their common friendship with Lamia see Fam. XIII, 62, 1. On the charging of interest to relatives see also ANDREAU (1990); ANDREAU (1999), p. 143. 541 MILLETT (1991), p. 91-108. Although Millett goes too far (in my view) in painting a black and white picture (either no interest at all or a commercial interest rate). See also ANDREAU (1990), p. 523524.

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16th to the 18th century. Banks had only marginal importance and interest-bearing loans were usually given to family, friends and acquaintances whose reliability (or unreliability) was best known. Laurence Fontaine presents the case of a businessman in 17th century Dauphiné who routinely lent money to members of his family, charging interest of 5 percent.542 b) Amici as debtor–intermediaries.

A totally different kind of faeneratio was that in which the debtor borrowed money at interest with the sole intention of reinvesting it in risky but highly lucrative ventures. It is interesting to see that in these cases it was not the initial creditor but the intermediary who was considered a faenerator.543 The latter lent the money openly at interest, while the actual financiers stayed in the background.544 The best known example is that of Rabirius Postumus. The money he lent to Ptolemy XII Auletes would have come largely from his amici, among whom were prominent senators like Pompey or Caesar.545 The case resembles that of P. Sittius who was forced to sell his estates in 63 to repay the debts he had incurred in order to do business in Spain, Mauretania and Numidia. At least part of Sittius’s business consisted of lending money at high interest rates to provincial communities and kings.546 Looking at the cases of Rabirius Postumus and P. Sittius, we have the impression that the amicitiae in question did not transcend the level of ‘social niceties’, becoming wholly irrelevant when there was a conflict of

542 SPUFFORD (1994); PFISTER (1994); cf. also ANDERSON (1972) for the situation in England; FONTAINE (1994), p. 1378, see also p. 1386: ‘Suivre les liens de crédit … met l’accent sur la stabilité de la relation interpersonnelle qui lie créanciers et débiteurs et sur les avantages réciproques de ces liens négociés et contrôlés.’ See also DELILLE (1994), p. 1435, 1440 for a comparable situation in Early Modern Southern Italy. 543 See e.g. PS.-ACRO, in Hor. Serm. II, 3, 18 (on the faeneratores at the Ianus medius). 544 Cf. VERBOVEN (1993a), p. 80-83. 545 CICERO, Rab. Post.5: nec suam solum pecuniam credidit sed etiam amicorum; Rab. Post. 39: credebat inductus usuris. For the balance due in 47 see PLUTARCH, Caes. 48, 4. On Rabirius Postumus’s and Ptolemy XII Auletes cf. infra. 546 Cf. CICERO, Sull. 58: cuius aes alienum uidemus, iudices, non libidine, sed negoti gerendi studio esse contractum, qui ita Romae debuit ut in prouinciis et in regnis ei maximae pecuniae deberentur. See also ibid. 56-59. He may also have been involved in the grain trade from Africa to Rome. On Sittius and his business see MASELLI (1986), p. 75-76; NICOLET (1966-1974), p. 308, 361; HEURGON (1950).

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interest.547 The necessary ‘functional trust’ derived not from the professed amicitiae, but from the calculated self-interest of Rabirius Postumus and Sittius, who needed an unblemished reputation in order to operate as financial intermediaries. Clearly, Cicero’s oration Pro Rabirio Postumo depicts Postumus’s relation with his financiers as one of amicitia in order to paint his client in a more favourable light. The very fact that, according to Cicero, Postumus was all but prosecuted by his ‘friends’ upon his return from Egypt throws doubt on their friendship with Postumus. Nevertheless, the fact that Cicero presents the case in such terms before a jury of senators and knights indicates that amicitia did serve as a functional framework within which to organise commercial financial transactions. Several other examples confirm that financial arrangements such as that set up by Postumus were not uncommon. Cicero himself used the services of Cluvius from Puteoli, of Egnatius Rufus and perhaps of his former scriba Tullius – all intimates of his – to invest money.548 Cluvius was also an intermediary of Pompey for part of the latter’s faenora in the East,549 while Atticus used C. Vestorius as an intermediary.550 Clearly, these amicitiae were mostly utilitarian in character. However, we should beware of a black and white view. The fact that Cluvius from Puteoli left a considerable share of his fortune to Cicero shows that the benefits expected from business friends were not necessarily limited to a set of rules regarding correct behaviour in business relations. Lucrative financial mediation could be part of a total package deal of mutual benefits in which the margin of profit of the mediator (i.e. the difference between the interest he had to pay and the interest paid to him) and the initial creditor were only one – admittedly important – aspect. Thus one of the advantages that Cluvius derived from his amicitia with Cicero

547

Cf. BRUNT (1988b), p. 361-381 . On Cluvius and Vestorius see CICERO, Att. VI, 2, 3; ANDREAU (1983); D’ARMS (1981), p. 49-55; RAUH (1986), p. 18-19, 22-238; DENIAUX (1993a), p. 480-482; NICOLET (1966-1974), p. 844-845; CARCOPINO (1947) I, p. 177-179. On Egnatius Rufus see CICERO, Att. XII, 18, 3; 19, 2; NICOLET (1966-1974), p. 866-868; DENIAUX (1993a), p. 494-496; RAUH (1986), p. 17-18; MASELLI (1986), p. 54-55; ANDREAU (1978), p. 57. On Tullius scriba (wrongly considered Cicero’s freedman) see CICERO, Att. XIII, 22, 4; XV, 26, 4; 29, 1; SHACKLETON BAILEY (1965-1970) III, p. 194-195; SHACKLETON BAILEY (1977a), p. 466-467; TREGGIARI (1969), p. 250; FABRE (1981), p. 352. 549 CICERO, Fam. XIII, 32. 550 CICERO, Att. VI, 2, 3. 548

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consisted of the letters of recommendation that Cicero wrote for him to the governor of Asia.551 Therefore, although it is true that even amici did not accept default in repayment of debts, this does not imply that the amicitia involved was not an effective gateway through which various substantial resources were exchanged. c) Illegitimate faeneratio.

Nevertheless, in some cases to lend money at interest clearly was a violation of the obligations of amicitia or patronage. The most famous example of this kind is the loan Brutus gave to Salamis, a city in his clientela on the Island Cyprus. When envoys of the city came to Rome in 57, they needed to borrow a considerable sum of money. Brutus advanced a few of his intimates to play the role of financiers offering a loan at the exorbitant rate of interest of 48 percent. The money really came from Brutus himself. The loan was a violation of the lex Gabinia de uersuris, which forbade loans to foreign embassies, but Brutus managed to arrange a senatorial decision granting an exception to the law. When the city proved unable to repay the loan, Brutus persuaded his father-in-law, App. Claudius, who was governor of Cilicia-Cyprus in 52-51 to give a praefectura and a cavalry detachment to one his intermediaries, M. Scaptius. Scaptius used the soldiers to shut up the senate in their senate-building until five of them starved to death. Brutus asked Claudius’s successor, Cicero, to renew Scaptius’s command, but Cicero refused and recalled the soldiers. Cicero had set a maximum interest rate of 12 percent for his province and he refused to acknowledge the 48% stipulated in the contract with Salamis, but he did persuade the city to pay the outstanding debt at the legal maximum of 12 percent. Brutus refused to accept the offer and Cicero agreed to freeze the matter and leave it to his successor, who most people thought would be Aemilius Paullus, Brutus’s brother in law. Of course, the Salaminians disagreed and demanded – in vain – that they should be allowed to repay the debt at 12 percent.552

551

CICERO, Fam. XIII, 56. Cf. CICERO, Att. V, 21, 10-13; VI, 1, 5-8; 2, 7-9; 3, 5; See HATZFELD (1919), p. 212; FRANK (1933), p. 389; MIGEOTTE (1984), p. 254-259, 387-388; BRAUND (1989), p. 143-145. On the lex Gabinia see BONNEFOND (1984); BONNEFOND (2000), p. 333-347; BROUGHTON (1937); NICOLET (1971b), p. 1221; BARLOW (1978), p. 185. On legislation against loans to foreign embassies, see also VERBOVEN (1993b). On Aemilius Paulus as Cicero’s expected successor see SHACKLETON BAILEY (1965-1970) III, p. 242. 552

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The interest that Brutus charged to his own clientes was exorbitant, but not unprecedented for loans to foreign communities. The city of Gytheion on the Peloponnesus repeatedly borrowed money from two resident Romans, Num. and M. Cloatius. The first loan and part of the second loan were remitted, but when Gytheion needed to borrow a third time, the Cloatii were less eager to help. They agreed to lend the money, but charged a compound interest of 48 percent. Hardly eight months later, when the city again proved unable to pay up, they agreed to remit all arrears and lowered the rate to 24 percent simple interest. The city thanked them in an inscription honouring them as protectors and benefactors 553 ( ). Tenos borrowed money from the Aufidii Bassi on several occasions over the course of the first half of the first century BCE. The elder Aufidius gave the first loans at 16 2/3 and 12 percent compound interest. His son, the younger Aufidius, renewed all outstanding debts at 12 percent simple interest. When the city still proved unable to repay its debts, Aufidius lowered the interest rate further to 8 percent and when even this proved no solution, he granted a suspension of repayments for eleven years at zero percent interest. Tenos honoured him with an inscription for his extraordinary goodwill ( ) towards the city.554 Hatzfeld concluded that the exorbitant interest rates of 24 and 48 percent attested for the Eastern provinces in the Late Republic were a mere strategy of Roman financiers to realise at least a modest profit on their loans.555 In my view, Hatzfeld is giving too much credit to the grandees of Roman usury. Undoubtedly high interest rates partly reflected high risks, but the examples of Rabirius Postumus and P. Sittius prove that the expected profit was much higher than what could be realised in Rome. What the three cases of Gytheion, Tenos and Salamis have in common, however, is that they had privileged relations with their financiers. In the case of Salamis, this induced Brutus to stay behind the scenes. The cases of Gytheion and Tenos show us why. As a patron of the city Brutus would

553

Syll. 748. See BOGAERT (1968), p. 100-101; MIGEOTTE (1984), p. 91-92; MASELLI (1986), p. 73-74. 554 IG XII, 860; BOGAERT (1968), p. 193-196; MIGEOTTE (1984), p. 221-226; MASELLI (1986), p. 72-73. 555 HATZFELD (1919), p. 212: ‘Les banquiers italiens savaient qu’en Orient il faut demander beaucoup pour obtenir peu; les conditions qu’ils imposaient aux villes grecques ne doivent pas nous faire illusions sur leurs exigences véritables, et nous prouvent simplement qu’ils avaient su prendre dans ce pays des habitudes de “bazar”’, followed by MIGEOTTE (1984), p. 387-388.

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have been under considerable pressure to lower the initially high interest rate of 48 percent, which he was clearly not prepared to do. 1.9 Permutatio. There is a lot of disagreement about precisely what a permutatio was. Literally the term means ‘an exchange (of debts)’. We know it referred to the transfer of money from one place to another without the transfer of the actual coins involved. We also know that it basically consisted in repaying a debt in another place than the one where it was contracted, but beyond this opinions diverge.556 I will try to show in this section that the term permutatio did not refer to a single technique but comprised several legally different procedures and that the organisation of permutationes required relations of fides. The term permutatio is sometimes translated as ‘bill of exchange’, sometimes as ‘letter of credit’ and sometimes as ‘giro transfer’. None of these three is very accurate. Giro is definitely wrong, since there was not necessarily a transfer of money from one account to another involved. ‘Bill of exchange’ is too reminiscent of modern bills of exchange that may be endorsed to outsiders, whereas Roman IOU’s were always personalised. ‘Letter of credit’ is undoubtedly the best translation, but this term mostly refers to situations where a banker/creditor uses an agent stationed in another place to effect payments, thus providing a money transfer service to his client/debtor. In Roman permutationes, on the other hand, agency was totally irrelevant and the persons involved could be independent from each other.557 It seems best, therefore, to consider permutatio as a procedure sui generis to transfer funds without carrying cash. However, what did it consist of ? It is important to realise that permutatio (in its financial sense) was not a legal concept. The term simply means ‘an exchange’. Indeed, we may ask ourselves if the term ever really acquired a general technical sense of a transfer-mechanism of funds, since Cicero seems to be the only author who uses the term in such a sense.

556

Cf. CICERO, Att. XII, 24, 1 for the opposition between permutari and carrying cash. See BARLOW (1978), p. 168-171; FRÜCHTL (1912), p. 21-28; PETRUCCI (1991), p. 116-120; ANDREAU (1978), p. 51-55; ANDREAU (1987), p. 509; MASELLI (1986), p. 118-119; JONKERS (1941); KIESSLING (1924), col. 700. 557 For giro see KIESSLING (1924), col. 700; PERLWITZ (1992), p. 63. For ‘bill of exchange’ see BARLOW (1978), p. 170. For ‘letter of credit’ see RAUH (1986), p. 8, n. 22.

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According to Petrucci, permutatio was technically based on a depositum irregulare or ‘open deposit’. In such a case the deposit-holder was not required to render the same objects as the ones he received – as in the case of a regular depositum – but to render an equal amount of the same kind of objects (in this case coins). In the meantime, he was free to use the deposited objects as he pleased, but the owner could at any time and without delay demand back all or part of his deposit. There is a lot of disagreement about whether the possibility of deposita irregularia existed in Cicero’s time. The classical jurists considered the technique legally as a kind of mutuum. Petrucci, however, concludes after a detailed analysis of two passages in the Digest from the jurist Alfenus Varus (who was consul suffect in 39 BCE) that the technique did exist in the Late Republic and was fundamental to the operations of argentarii. However, from a technical juridical point of view the distinction between a depositum irregulare and a mutuum was in any case slight. It seems to have been meaningful only to distinguish between money deposited with a banker or a procurator for administration purposes, i.e. for the benefit of its original owner on the one hand, and money lent to a debtor for his personal purposes on the other.558 We have at least one example of a permutatio in which there can have been no depositum irregulare involved. When Cicero left for Cilicia in 51 he had arranged a permutatio with Atticus, who had business interests in Ephesus. The case is interesting because Atticus advanced the money to Cicero. Once in Asia, Cicero worried that he would have to borrow to pay Atticus back. In other words, Cicero certainly did not make a depositum irregulare with Atticus. Moreover deposita irregularia only concerned two individuals, whereas most permutationes involved three parties. So the technique of the depositum irregulare is in itself insufficient to explain all permutationes.559 Maselli believes permutatio consisted of an exchange of Roman coins against nonRoman.560 Although this may indeed have been the case originally561 (hence the origin of the term), several letters from Cicero to

558

PETRUCCI (1991), p. 119. A depositum regulare required that the same objects were rendered, something which was naturally impossible in the case of a permutatio. On the depositum see BÜRGE (1987), p. 536-555; ANDREAU (1987), p. 528-544. 559 CICERO, Att. V, 13, 2; 15, 2; VII, 5, 3; 7, 2. 560 Cf. MASELLI (1986), p. 118-119. 561 See e.g. ANDREAU (1999), p. 132.

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Atticus manifestly contradict the validity of this interpretation for the Late Republic. In Att. 12,24,1 permutari is presented as an alternative for ‘carrying with oneself’ (ipsi ferre). In Att. 15,15,4 permutari is used with the accusative Athenas in the sense of ‘to Athens’. In Att. 11,24,3 a permutatio is arranged within Italy and is described as ‘to send sesterces’ (mittere HS (decem milia)). Jonkers and Barlow identify a permutatio legally as a delegatio debitoris (sometime also called attributio562), in which a debtor repaid his creditor by transferring a claim on a third person to his creditor. Delegatio debitoris was a legally defined concept based on an obligatio litteris – i.e. an obligation not arising from a formal contract (obligatio uerbis) or from a factual situation (obligatio re). The claim acquired by the creditor was called a nomen transcripticium a persona in personam. It constituted a new debt (nouatio) that extinguished the two previously existing debts between creditor A and debtor-creditor B on the one hand and debtorcreditor B and debtor C on the other, making C a debtor of A.563 Alternatively, a delegatio debitoris could consist of a commission given to a debtor to repay a debt of his creditor instead of repaying his own debt. In this case there was no nouatio – i.e. no new claim arose between creditor A and debtor C. The person who paid the debt on request of the debtor could claim compensation by means of the actio mandati. Roman law recognised that debts could be repaid by people other than the debtor (solutio debiti alieni). So in case of delegatio debitoris, the debt of the debitor delegatus was simply extinguished.564 Barlow’s and Jonker’s interpretation implies that a permutatio consisted legally of an exchange of claims, which would explain the origin of the term. The interpretation is probably correct for a number of permutationes but not for all. The permutatio that Atticus arranged for Cicero in Asia, for example, involved no third person. Philogenes, one of Atticus’s procurators, paid Cicero in Ephesus, undoubtedly with money belonging

562

see e.g. CICERO, Att. XIII, 2a, 1; 22, 4; XV, 13a, 1; XVI, 1, 6; 3, 5. JONKERS (1941); BARLOW (1978), p. 162. On nomina transcripticia see GAIUS III, 130. On delegatio debitoris see GIRARD (1911), p. 701; BERGER (1953), p. 429; BARLOW (1978), p. 1611620. On nouatio see GIRARD (1911), p. 692-704; BERGER (1953), p. 600. See also Dig. XLVI, 2 (De nouationibus et delegationibus). 564 See e.g. Dig.XLVI, 1, 18; 2, 21; 3, 56, pr.; L, 17, 180. Barlow distinguishes a delegatio debitoris (necessarily including a nouatio) from an attributio (no nouatio). However, neither Cicero (who uses both terms indiscriminately), nor the jurists seem to have made such a distinction. See CICERO, Att. XII, 3, 2; 5a, 1; 6, 1; 12, 1; XIII, 2a, 1; 3, 1; 4, 2; XV, 13a, 1; XVI, 3, 5; GIRARD (1911), p. 701; BERGER (1953), p. 429. 563

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to Atticus. Legally, the transaction consisted of a mutuum, which was simply repaid in a place other than the one where it originated.565 Whatever the origin of the term, it seems clear that various legal grounds could be involved: nouatio, delegatio debiti, solutio debiti alieni and mutuum or depositum irregulare. This explains why the term permutatio does not occur in legal sources. However, what was the role played by amici in the arrangement of permutationes? More specifically, we should ask whether permutationes were organised on a professional basis by bankers or other financial specialists. The publicani arranged permutationes for the government using the taxes raised in the provinces to supply the provincial budget. Cicero received his allowance for the government of Cilicia in Laodicea.566 When the senate voted that Verres, as governor of Sicily, would be given an extra 12 million sesterces to buy grain, the publicani in Sicily paid him the money out of the proceeds from the local taxes.567 Pro-magistrates could avail themselves of the services of the publicani to repatriate the profits they had made in the provinces. Cicero deposited the 2.2 million sesterces profit he made in Cilicia with the publicani at Ephesus, who were able to transfer it by permutatio to Atticus in Rome.568 We have no indication, however, that private citizens could normally use the services of the publicani, although it is beyond doubt that the publicani were capable and entitled to provide such services if they wished to do so. Scholars have long believed that private individuals could turn to professional bankers (argentarii) with international contacts like Atticus to arrange permutationes for them.569 However, Atticus was not an argentarius and although he arranged several permutationes for Cicero, these were clearly not routine operations for him. Petrucci nevertheless believes that permutationes belonged to the regular services provided by argentarii to their customers.570 He adduces

565 Cf. Cod. Iust. IV, 2 (a. 293): Cum te in Gallia cum Syntropo certum auri pondus itemque numeratam pecuniam mutuo dedisse, ut Romae solueretur … 566 CICERO, Fam. III, 5, 4. 567 CICERO, 2 Verr. III, 163-165. 568 CICERO, Att. XI, 1, 2. The intended permutatio did not take place. It seems that the money was transferred by permutatio first to Egnatius Rufus, then to Pompey. See CICERO, Fam. V, 20, 9; Att. XI, 1, 2; 2, 3; 3, 3; 13, 4. 569 Cf. HEICHELHEIM (1938), p. 554-557; KIESSLING (1924), col. 700; FRÜCHTL (1912), p. 22-28. 570 PETRUCCI (1991), p. 127.

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three arguments to substantiate his theory. The first point is that deposita irregularia, which according to him lay at the heart of permutationes, were a typical service provided by bankers. However, as we have seen, the technique of the deposita irregularia cannot explain permutationes in which more than two partners were involved. A much more likely legal basis for permutationes between three parties was delegatio debitoris. Whether the debt in question resulted from a depositum irregulare or from a mutuum is irrelevant. We can add that although deposita irregularia may have been fundamental to the operations of argentarii, nothing indicates that the argentarii had a monopoly on the practice. Procurators too, for example, may have used deposita irregularia to manage their principal’s interests. Petrucci’s second point is that permutationes were recorded in the accounts (rationes). A special edict de edendo of the praetor compelled argentarii to hand over the accounts they made up on behalf of a client when that client was involved in a trial and needed his accounts as evidence.571 When Cicero wanted to take up the money of the permutatio he had arranged with Atticus in Ephesus, he ‘handed over the account’ (edidi rationem) he had made with Atticus to Philogenes, who acted as Atticus’s procurator. However, argentarii were not the only people who made up accounts on behalf of others. Paulus explicitly states that procurators, socii and guardians were not compelled by the edict de edendo to edere rationem because they could be forced to do so by the actio mandati, societatis and tutelae respectively. The term edere rationem, however, applied to all categories.572 Moreover, nothing indicates that the accounts in which permutationes figured were the accounts administered by a banker or a procurator on behalf of his client or principal rather than the personal accounts of the persons involved in the permutatio. In the case of Cicero’s arrangement with Atticus we may note that it was Cicero who notified Philogenes by editio rationis, and not Atticus. So ratio here cannot refer to any account held by Atticus on behalf of Cicero, but must be taken in its general sense of ‘financial arrangement. Clearly, therefore, the editio in question is not the legally required editio of the argentarius. Petrucci’s third argument is that inscriptions found on Delos and all over the eastern Mediterranean prove that Roman bankers were active in these

571

Dig. II, 13. Dig. II, 13, 9. See also Cod. Iust. IV, 35, 1 (Septimius Severus and Caracalla): aduersus eum, cuius negotia gesta sunt, de pecunia quam de propriis opibus uel ab aliis mutuo acceptam erogasti, mandi actione pro sorte et usuris potes experiri. 572

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parts.573 A passage in Cicero’s Verrines refers to a Roman banker who had long been active in Africa. Petrucci concludes that there was a dense network of Roman bankers active all over the Mediterranean who must have commonly organised permutationes as a service to each other. However, this is exactly what remains to be proved! The problem with permutationes was that they required a great deal of trust between the persons involved. Delegatio debitoris was not a simple procedure. A debtor could not be forced to pay a third person. Therefore, a permutatio could not be enforced as long as the debitor delegatus had not voluntarily accepted a nouatio. This explains why delegationes in Cicero’s letters often involve elaborate negotiations.574 Delegatio of unfamiliar debtors was considered a risk.575 Cicero warned Atticus to be careful with a claim which Faberius wanted to delegate as payment of his debt to Cicero: ‘We must know the (debtor’s) character and not only his financial means’.576 Cicero worried about his financial situation in 44 because he had acquired a number of claims through attributio on people he did not know.577 When Caesar proposed that a claim which Cicero had held on an unknown Pompeian whose goods had been proscribed would be paid through delegatio, Cicero reacted sceptically: ‘Who can I trust?’ Significantly, Vettienus was willing to buy the claim from Cicero, but offered only half its nominal value.578 For bankers to be able to offer permutationes as a service to their customers would have required regular contacts with bankers in other provinces. This was not easy with the primitive ‘communication technology’ available in the Roman pre-industrial world. It either presupposed large scale hierarchically structured banking firms with multiple branches

573

T. Herennius: CICERO, 2 Verr. I, 114; 5, 155-156 (see also infra on the this argentarius). Cf. e.g. CICERO, Att. XII, 12, 1; Q. fr. II, 2, 1-2. See also the difficulties concerning Dolabella’s repayment of Tullia’s dowry (CICERO, Att. XV, 13a, 1). 575 Cf. VERBOVEN (1993a), p. 84-87. 576 CICERO, Att. XII, 15a: noscenda autem est natura, non facultas modo. On the delegationes in the case of Faberius’s debt to Cicero see also Att. XII, 6, 1; XIII, 3, 1; 4, 2; 22, 4; 23, 3). See also BENOEHR (1986a). 577 CICERO, Att. XVI, 3, 5. 578 CICERO, Att. XII, 3, 2: Quis erit cui credam? See BENOEHR (1986b), p. 30-35; FRÜCHTL (1912), p. 72; ROYER (1967), p. 238; BARLOW (1978), p. 159; SHATZMAN (1975), p. 126-127; ANDREAU (1987), p. 693; PETRUCCI (1991), p. 109-110. Technically the affair was probably arranged by a delegatio debitoris. Note that the claims of the Monte de pietà in 14th century Florence also circulated at half their nominal value. See GOLDSMITH (1987), p. 152, 162, 167. 574

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in different provinces or continuous travel and correspondence between bankers. We have no indication that the former were anything but exceptional. The latter required a considerable investment in time, people and means of a magnitude that most argentarii simply could not afford. Andreau has shown how argentarii operated mostly on a local level and had only limited funds available.579 This is not to say that no banker ever arranged a permutatio. The businessman T. Herennius had been a banker in Leptis Magna for many year before he moved to Syracuse where he had been born. He may very well have had the contacts needed to arrange permutationes between Leptis and Syracuse.580 Andreau notes that many argentarii of the Late Republic left their home-town to conduct their banking business elsewhere.581 Whatever the reasons for their emigration, it may have given them the opportunity to arrange permutationes between their hometowns and the cities where their banks were located. However, if these bankers did arrange permutationes – which is still no more than a hypothetical possibility – they probably had to depend on their personal networks of family and friends back in their hometown for assistance. In other words, it is not enough that we can establish a presence of Roman bankers all over the Mediterranean to assume efficient operative networks between them.582 The people most likely to have had the means necessary to organise permutationes were not bankers, but international traders and financiers and, of course, members of the aristocracy owning property in several provinces. In general it may well have been the case that international traders did not depend on bankers to transfer funds from one province to the other, but rather that bankers depended on international traders to arrange permutationes if necessary. More important still, however, is how these networks operated to organise permutationes. How easy were these to organise? Only a few examples of actual permutationes are attested.583 I have already

579 On Atticus as a banker see BARLOW (1978), p. 256; WELCH (1996); BYRNE (1920), p. 11-12; CARCOPINO (1947), p. 267-268; 285-289; PERLWITZ (1992), p. 63. Contra see ANDREAU (1978), p. 52; ANDREAU (1982), p. 105-106; BÜRGE (1987), p. 487. On argentarii in general see ANDREAU (1987), p. 61-177, and passim. 580 CICERO, 2 Verr. I, 114; 5, 155-156. See ANDREAU (1987), p. 419-420. 581 ANDREAU (1985), p. 384-385. 582 On business networks see ANDREAU (1995a). 583 Apart from the examples discussed here, see also Cicero, Pis. 48 where a few manuscripts read that Gabinius used permutationes to transfer the proceeds from his robberies as governor of Syria back to Italy.

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mentioned the first of these, viz. the permutatio arranged by Atticus in 51 through which Cicero was supplied with money in Ephesus, where Atticus had business interests. Atticus’s procurator Philogenes paid the money after Cicero formally notified him of the arrangement. When Cicero arrived in Ephesus, he found that he did not need the money after all. Instead of not taking up the permutatio, however, Cicero preferred to lend the sum in question to Philogenes for as long as he liked and apparently without charging interest. Since Atticus advanced the money to Cicero, who was to pay him back in Italy, the permutatio in question also benefited Atticus since it offered him a way to repatriate the profits he had made in Asia. This case proves that a permutatio could take place between two persons (rather than three). 584 In 45, Cicero asked Atticus to arrange a permutatio to finance young Cicero’s stay in Athens. Atticus turned to an Athenian friend, Xeno, who agreed to pay out the money to young Cicero in Athens in instalments. The money was paid to Atticus by Cicero’s dispensator, Eros.585 Cicero was very cautious when he made his request to Atticus. He excused himself for bothering his friend with it, but he knew no one else who could organise the matter. Clearly, Atticus’s intervention could not be taken for granted and it appears that Cicero was not sure whether his friend would be able arrange the affair. A third permutatio in which Atticus was involved was intended to supply Cicero with money in Brundisium where he awaited Caesar’s return and pardon after Pompey’s defeat. In this case, Atticus turned to a certain Minucius from Tarentum – who apparently resided in Brundisium and had business interests in Rome – to transfer the money to Cicero. Terentia paid the money directly to Minucius’s procurators in Rome. Significantly, Minucius was extremely cautious and was willing to hand over the money only after his procurators had notified him that they had received the sum due.586 In Att. XI,24,3 Cicero describes a permutatio as ‘to send money’ (mittere pecuniam). The same expression is found in connection with the

584 CICERO, Att. V, 13, 2; 15, 2. On the loan to Philogenes (evidently a beneficium-mutuum) see Att. VII, 5, 3; 7, 2. See also SHACKLETON BAILEY (1965-1970) III, p. 300; TYRELL & PURSER (19041933) III, p. 309; PETRUCCI (1991), p. 120; FRÜCHTL (1912), p. 24-25. 585 CICERO, Att. XII, 24, 1; 27, 2; 32, 2; XIII, 37, 1; XIV, 16, 4; XV, 15, 4; 17, 2; XVI, 1, 5. See PETRUCCI (1991), p. 116-119; BARLOW (1978), p. 170; ANDREAU (1978), p. 53; FRÜCHTL (1912), p. 25-26. 586 CICERO, Att. XI, 11, 2; 14, 3; 15, 2; 17a, 3, 24, 3; 21, 3.

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costs of Tiro’s medical treatment in Patrae, where Cicero had left him in the care of the businessman M’ Curius. Cicero apparently counted on Curius to arrange the permutatio. Curius was a client of Atticus and had hosted Cicero in Patrae, using the occasion to establish a direct amicitia with Cicero by writing him into his will.587 The difference between permutationes and mutua was often small. Thus Früchtl considered the loan that Cn. Sallustius gave to Cicero in Greece in 48 to have been a permutatio. Although this was certainly not Sallustius’s intention from the start, the transaction was indeed turned into a permutatio when Cicero asked Atticus to arrange repayment of the loan in Rome to Sallustius’s brother while Cn. Sallustius himself stayed with Cicero in Brundisium.588 In 58, Q. Cicero proposed to send money by a permutatio to his brother in exile in Macedonia. We do not know how Quintus hoped to arrange the permutatio, but it seems likely that he would have turned to Atticus. Cicero, however, refused the offer. 589

These few examples illustrate that permutationes were never routine. They required voluntary co-operation and reliability from all those involved. In other words, permutationes required relations based on mutual trust. Consequently, both professionals and non professionals depended on networks of amicitia to arrange them.590 1.10 Surety. The Roman system of contractual obligations attached much importance to the personality of the parties involved. Trustworthiness (fides) and reputation (existimatio) were key elements of the system, reflected among other things in the habit of guaranteeing debts by personal surety.591

587

CICERO, Fam. XVI, 9, 3: Curio misi, ut medico honos haberetur, et tibi daret, quod opus esset; me cui iussisset, curaturum. On Curius’s will and his relation with Cicero see infra. 588 CICERO, Att. XI, 11, 2; 13, 4. See FRÜCHTL (1912), p. 21; BARLOW (1978), p. 170. 589 CICERO, Q. fr. I, 3, 7. 590 See also JONKERS (1941), p. 185, who rightly uses the term ‘Geschäftsfreunde’. 591 MACQUERON (1957); VAN OVEN (1948), p. 404-412; JOLOWICZ (1939), p. 313-317.

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a) Legal framework

There were several types of personal sureties. The oldest type was that of the praes, who by the Late Republic only guaranteed contractual obligations to the state.592 Contracts between private persons were usually guaranteed by adpromissores, who ‘added’ themselves to the contracts involved by a sponsio or fidepromissio ‘to do the same’.593 Surety by means of adpromissio was subject to rigid and inflexible rules. To begin with it was possible only in the case of obligations contracted orally (uerbis), i.e. in the case of stipulationes. Consequently, it was not possible to guarantee pure mutua this way . The obligation contracted by the adpromissor was not hereditary and was extinguished at his death. Moreover, between the late third century and the time of Sulla, the system of adpromissio was modified and further limited by five important laws.594 The ancient lex Publilia (4th / 3d. century BCE ?) granted the adpromissor the right to sue the original debtor for double the amount paid out. 595 The lex Apuleia (after 241) created a societas between the sureties by which an adpromissor who had repaid a debt could force the other adpromissores to pay their share. The lex Furia confirmed this principle by making the adpromissores liable only to the extent of their share.596 The same law gave the sureties the right to sue creditors who had received more than the sum due from any one adpromissor. This implied that a creditor had to call on each of the adpromissores separately for exactly their share of the balance due. Moreover, the law set a time limit on the liability of the adpromissores of two years after the expiration date of the contract they had guaranteed.597 The lex Cicereia (second century BCE ?) stipulated that a creditor had to proclaim publicly who was adpromissor for whom and to what amount. The lex Cornelia (from Sulla) limited the liability of the sureties to 20,000 sesterces.598 At least by the beginning of the Empire onwards, adpromissiones were gradually replaced by the more flexible fideiussiones. Although fideiussio

592

Cf. WESENER (1974a); WESENER (1974b); JOLOWICZ (1939), p. 190, 314. See WATSON (1965), p. 6-9; GIRARD (1911), p. 750-766. 594 Cf. VAN OVEN (1948), p. 406-407; GAIUS III, 115-127. 595 GIRARD (1911), p. 761-762; WATSON (1965), p. 7-8; KASER (1955) I, p. 155. 596 GIRARD (1911), p. 758-759; KASER (1955) I, p. 554; BERGER (1953), p. 547, 552. 597 Cf. MACQUERON (1957), p. 114-115; JOLOWICZ (1939), p. 315; VAN OVEN (1948), p. 407. 598 KASER (1955) I, p. 555; BERGER (1953), p. 549. 593

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was also based essentially on a stipulatio, it was applicable to all kinds of obligations (including mutua) and created an hereditary obligation. Any fideiussor was individually liable to the extent of the entire debt and could not sue other fideiussores. Most scholars incline to believe that the system of the fideiussiones was developed in the time of Augustus. The main argument is that it seems to be based on the actio quod iussu that is usually dated to this period. However, this traditional date of the actio quod iussu is not certain. Aubert, for example, believes that the actio quod iussu was the first of the actiones adiectiae qualitatis to be created, which implies a date early in the second half of the second century BCE. Curiously, of the five laws mentioned above, only the lex Cornelia (limiting liability to 20,000 sesterces) was applicable to the system of fideiussio, which may indicate that by Sulla’s time fideiussio was possible. 599 The mandatum pecuniae credendae originated in the Ciceronian period. It consisted of a mandate given by the surety to a creditor to lend money to a specified debtor. The jurist Ser. Sulpicius Rufus disputed its legality because the mandate was to the advantage of the mandatory (mandatum tua gratia). Sulpicius’s opinion proves that this form of surety already existed in his time. It became a common form of surety under Augustus. The mandatum pecuniae credendae was much more flexible even than fideiussio, because it did not rest on the formal contract of stipulatio, but on the informal consensual contract of mandate, which implied among other things that the surety did not have to be present in person to assume liability.600 The last type of surety to develop in Roman law was the constitutum debiti alieni, which consisted of an informal promise to pay a debt. The constitutum debiti existed in the Late Republic as a way to renew existing debts (nouatio), but it is not certain whether it was then already applicable to debts of third parties.601

599 Cf. VAN OVEN (1948), p. 407-412; JOLOWICZ (1939), p. 316; MACQUERON (1957), p. 106, n. 14; GAIUS III, 115-127. On the early date of the actio quod iussu see AUBERT (1994), p. 50-52, 7880. See also COSTA 600 See JOLOWICZ (1939), p. 316; VAN OVEN (1948), p. 291-292, 409-410; WATSON (1961), p. 113-114; GIRARD (1911), p. 753-766; KASER (1955) I, p. 557; GAIUS III, 156. 601 BERGER (1953), p. 410; JOLOWICZ (1939), p. 316-317; VAN OVEN (1948), p. 307-308. On constitutum debiti in general see GIRARD (1911), p. 602-605; KASER (1955) I, p. 487.

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b) Surety as an officium amicitiae

Standing surety for friends and clients was an important social obligation.602 A satire of Horace features the poet being awakened by Ianus, god of the morning, exhorting him to go to the forum where he should stand surety before someone else assumed the obligation. Porphyrius comments: ‘so that another would not become sponsor before you and you would seem not to want to assume the duty of a friend’603 A passage in Cicero’s oration Pro Plancio places sureties (sponsiones) in a context of gratia, officia, benignitas, liberalitas and obseruantia.604 A passage in the Pro Rabirio links various forms of surety (fide sustentatio) with amicitia.605 A letter of recommendation written for Curtius Mithres mentions Mithres’s willingness to stand surety as a sign of his beneuolentia and fides.606 Seneca mentions personal surety as a special category of beneficia.607 In Cicero’s Pro Murena we read that poor friends showed their friendship by salutations (salutationes) and escorts (adsectationes) because they could not afford more substantial officia such as standing surety (sponsiones).608 We may also note that a guarantor, regardless of the type of suretyship he had taken on himself, could always sue the original debtor by an actio mandati as if he were mandated to stand surety. We will later see that mandatum itself was conceived as a duty of friends.609 When Cicero planned to buy gardens (horti) out of the inheritance left by a certain Scapula, he considered it self-evident that Atticus would stand surety.610 According to Plutarch, Cato the Younger stood surety

602

Cf. ROYER (1967), p. 229-231; MICHEL (1962), p. 540-543, 564. HORACE, Serm. II, 6, 23-26: … Romae sponsorem me rapis: ‘Heia / ne prior officio quisquam respondeat, urge. PORPHYRIO, in h. l.: ne alius sponsor ante te fiat et tu uidearis noluisse officio amici fungi. 604 CICERO, Planc. 47. 605 CICERO, Rab. Post. 4. 606 CICERO, Fam. XIII, 69, 1. 607 SENECA, Ben. I, 2, 4. 608 CICERO, Mur. 70-71. 609 Cf. GAIUS III, 127. 610 CICERO, Att. XIII, 3, 1. Note that Cicero wrote this passage teasingly. The state seems to have been involved because the property of one of the heirs had been confiscated. This meant that the type of surety involved was that of a praes. We know from Cornelius Nepos that Atticus in principle refused to be praes. And so Cicero wrote: praes aliquando factus es, et in his quidem tabulis (i.e. in a transaction concerning confiscated property). See SHACKLETON BAILEY (1965-1970) V, p. 335, 355. On the inheritance and the horti see CICERO, Att. XII, 5a; 37, 2; 38a, 2; 44, 2; 47, 1; 51, 2; 52, 2; XIII, 26, 1; 29, 1; 31, 4; 33, 2; 22, 4; 33a, 1. 603

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(as a praes) ‘with slaves and land’ for many of his friends in contracts with the state.611 The ex-consul D. Iunius Brutus guaranteed the contract that P. Iunius made with the state to rebuild the temple of Castor and Pollux. The similarity of names suggests that P. Iunius was a protégé of D. Brutus.612 The case of L. Tullius Montanus is less clear. Montanus had stood surety as praes for Flaminius Flamma, probably concerning the purchase of confiscated property. Because Flamma did not pay up Montanus was summoned by the praefectus urbi, L. Munatius Plancus. However, we do not know what relation Montanus had with Flaminius Flamma.613 Equally obscure are the relations between the tax-farmer P. Valerius and his praedes, M. Anneius and Paconius Lepta.614 Cicero stood surety in a private contract of Q. Cornificius. The case is remarkable because Cicero himself claimed not to have been close to Cornificius at the time when the debt was contracted. However, it was precisely because he did not have an amicitia with Cornificius at the time that Cicero was distrustful of the case.615 Crassus stood surety for Caesar for political reasons in 61 for 830 talents.616 He may have used the same strategy again in 60 to bribe a number of jurors in the Bona Dea trial against P. Clodius 617 Brutus claimed to have stood surety for two familiares, M. Scaptius and P. Matinius, who had lent a considerable sum to the city of Salamis. Their solvency – and, therefore, Brutus’s own money – depended on the repayment of the loan. We have already seen that Brutus lied and that he himself was the true creditor behind the deal. Nevertheless, the claim was meant to convince Cicero of the importance which Brutus attached to the matter and, therefore, must have been credible.618 Cicero stood surety for P. Magius Chilo, a client and old friend (uetus amicus) of M. Marcellus (cos. 51), who was a political friend of Cicero

611

PLUTARCH, Cat. Min. 6, 4. CICERO, 2 Verr. I, 130-152 (esp. § 144, 150). 613 CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1. See SHATZMAN (1975), p. 387; TYRELL & PURSER (1904-1933) V, p. 88; SHACKLETON BAILEY (1965-1970) V, p. 341. 614 CICERO, Att. V, 21, 14; Fam. V, 20, 3-4. 615 CICERO, Att. XII, 14, 2; 17; 19, 2. See also MACQUERON (1957), p. 111-118. 616 SUETONIUS, Iul.18, 1; PLUTARCH, Caes. 11, 1. 617 CICERO, Att. I, 16, 5: Arcessiuit ad se, promisit, intercessit, dedit. Cf. WARD (1977), p. 205209. Against the identification of Crassus see TATUM (1999), p. 82-85. 618 CICERO, Att. VI, 1, 6. On the Salamis case cf. supra p. 130. 612

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himself. When Magius proved insolvent in 45, he turned to his patron Marcellus for help. When Marcellus refused to help, Magius was infuriated and killed first Marcellus and then himself. Clearly, Magius felt he had a right to Marcellus’s support.619 The former tribune of the plebs T. Fadius asked in vain for a financial intercession from Cicero. Fadius, as quaestor, had stood by Cicero against Catiline in 63 as quaestor and had promoted Cicero’s recall from exile as tribune in 58. Cicero’s refusal to stand surety (intercessio) enraged Fadius and induced him to break off his amicitia with Cicero.620 We have already seen Crassus doing the same for Caesar in 61. C. Scribonius Curio guaranteed the huge debts (6 million sesterces) that Marc Antony inherited from his father. According to Cicero, the two young men were lovers at the time.621 Perhaps we should add Cicero’s help to Tullius Montanus. It seems likely that Cicero guaranteed Montanus’s debt in order for him to obtain a year’s remission of repayment. Cicero described his intervention as constituisse Montani nomine … dissoluere. Although we cannot be sure that the term constituere is here used in its technical sense, we may be dealing with the oldest attestation of a constitutum debiti alieni.622 Surety post factum was closely related to simple payment of debts, with which it formed one and the same general personal obligation (officium). Significantly, Cicero described this duty with the comprehensive expression ‘to sustain a friend’s debts’ (aes alienum suscipiunt amicorum).623 We find the same expression in the Digest both in the sense of ‘to take over a debt’ and in the sense of ‘to stand surety’.624 In the Pro Rabirio we read that Caesar was the only one to stand by Postumus after his return from Egypt and ‘to support him with (all) his means, fortune

619

CICERO, Fam. XIII, 10, 3. See also supra p. 123 on the case. For Cicero’s relation with Marcellus see CICERO, Fam. IV, 7, 1; 11, 2; XV, 9, 3; Brut. 251 and of course CICERO, Marc. passim. 620 CICERO, Fam. VII, 27, 1. 621 CICERO, Phil. II, 44-46. 622 CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1. Note that a year later Plancus demanded repayment from Montanus’s procurators, which could indicate that Cicero’s promise (constitutum) to intercede was made to Montanus informally and not formally to Plancus. However, a Roman creditor had the right to sue a debtor without first turning to his sureties. See MACQUERON (1957). P. 101-102. 623 CICERO, Off. II, 55. 624 Dig. XIV, 3, 19, 3 (per intercessionem aes alienum suscipiens); XVI, 1, 2, 5; 13, pr.; 1, 32.

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and credit’.625 A passage from Ulpianus in the Digest indicates that a debtor in financial straits would normally turn to his amici with the request that they would either pay his debts or stand surety for a renewal (nouatio).626 A remarkable aspect of the Roman system of personal sureties was that standing surety for a debtor was sometimes rather a beneficium towards the creditor than towards the debtor. This can be inferred from the remuneration that a creditor sometimes gave to the guarantor of a debt.627 We may note in this connection that Egnatius Rufus, who stood surety for Scribonius Libo towards Cicero, was a close friend (familiarissimus) of both Marcus and Quintus Cicero.628 The service is to be related to the common practice, well attested under the Empire, of faeneratores offering credit support for contracts made by businessmen.629 When a debtor defrauded his creditor, it was customary for the creditor to convene a meeting with the debtor’s sureties. Thus L. Trebellius’s sponsores and creditores met daily in 44.630 In his oration Pro Quinctio, Cicero argued against Sex. Naevius’s claim that Quinctius had committed fraud by asking rhetorically why the creditors and sureties had not met with each other?631 A tablet from the archive of the Puteolean Sulpicii attests to the co-operation between creditors and sureties to prepare the proscription of an insolvent debtor’s goods after his death.632 The lex Iulia municipalis stipulated that it was unlawful for a person to be a member of the city council if he had notified his sponsores or creditores that he was insolvent.633 Of course, such co-operation does not necessarily mean that the personal sureties had intervened initially to oblige the creditor. It rather illustrates

625

CICERO, Rab. Post. 43: sustinuit re, fortuna, fide. See also Rab. Post. 41. Dig. XXII, 1, 21. 627 Cf. Dig. XVII, 1, 10, 13; 1, 12, pr.-1. See also MICHEL (1962), p. 282-283, 541, n. 541. Note that remuneration of the guarantor by the debtor is also attested: Dig. XVII, 1, 6, 7; IXL, 5, 19, 1; MICHEL (1962), p. 220-221. 628 CICERO, Att. XII, 18, 3; 19, 2. For Egnatius’s relation with the Cicerones cf. CICERO, Fam. XIII, 43, 1; 45; 47, 1; 73; 74; Att. XIV, 15, 5. See also NICOLET (1966-1974), p. 866-868; DENIAUX (1993a), p. 494-496. 629 see TPSulp. 48 (cf. WOLF (1993), p. 83); Formula Baetica (FIRA III, no. 92, p. 295-297); Dig. XXXIV, 3, 28, 6 (Scaevola); 3, 31, 4 (Scaevola); XIV, 3, 19, 3 (Papinianus); probably also SENECA, Epist. 119, 1 (cf. infra p. 147 for the text). 630 CICERO, Phil. II, 4, 11. 631 CICERO, Quinct. 73. 632 TPSulp. 86. See CAMODECA (1999), p. 192-194. 633 Tab. Heracl. 114. FIRA I, no. 13, p. 149. CRAWFORD (1996), p. 367, 376, 386. 626

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the role played by Roman sureties as intermediaries. When Apuleius turned to Cicero as surety for a debt of Q. Cornificius, Cicero asked his procurator Atticus to pass the claim on to Cornificius’s procurators. Presumably, it had not been Apuleius’s intention that Cicero would pay Cornificius’s debt immediately, but rather that he would press Cornificius to pay up.634 A comparable situation can be found in the case of Heraclides’s debt to C. and M. Fufius, for which a certain Hermippus – like Heraclides a citizen of Temnos – stood surety. When Heraclides left Rome without paying up, the Fufii sent a freedman to Hermippus who immediately contacted Heraclides requesting him to pay his debt. It was not until it became clear that Heraclides refused to comply that Hermippus paid in his place.635 Both cases illustrate how Roman sureties were primarily intermediaries on which creditors could rely to intervene in case of default. One of Seneca’s letters to Lucilius is worth mentioning in this connection. The letter mentions two ways in which businessmen (negotiatores) could get loans: either through personal sureties (intercessores) – probably referring to credit support offered by faeneratores (cf. infra) – or through proxenetae.636 Proxenetae were professional brokers who mediated contracts (in this case loans) in exchange for a fee. It seems to have been a point of discussion among jurists whether a proxeneta could be held liable as surety on the grounds that he gave a mandatum pecuniae credendae to the creditor. Ulpianus did not think so: ‘he advises on an account, rather than gives a mandate’ (monstrat magis nomen quam mandat).637 The part of active intermediary expected from sureties is further illustrated by an ironic passage in a letter from Cicero to Atticus. It shows how Cicero intervened with Atticus for young Quintus Cicero, who had courted Caesar and Marc Antony a while but who now promised to mend his ways and to choose the side of Brutus and Cassius. The passage is framed in financial terms sublimely expressing Cicero’s scepticism towards the

634

CICERO, Att. XII, 14, 2; 17; 19, 2. See MACQUERON (1957), p. 111-118. See also supra p.

144. 635

CICERO, Flacc. 46-50. MACQUERON (1957), p. 107-111; ZEHNACKER (1979). On the Fufii see NICOLET (1966-1974), p. 884; MASELLI (1986), p. 50-51. 636 SENECA, Epist. 119, 1: ut negotiari possis, aes alienum facias oportet, sed nolo per intercessorem mutueris, nolo proxenetae nomen tuum iactent. 637 Dig. L, 14, 1-2. On the proxeneta see SIBER (1939-1940), p. 177-179; MICHEL (1962), p. 193195, 533; GIRARD (1911), p. 665, n. 1; VERBOVEN (1993a), p. 90-91; ANDREAU (1987), p. 668.

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young man’s intentions. Young Quintus was deeply in debt and Cicero described himself as his nephew’s guarantor (sponsor), trying to persuade Atticus (and Brutus) to credere, i.e. to believe Quintus ... and to lend him money.638 Clearly, Roman customs regarding sureties were in many ways different from modern customs. Macqueron rightly concluded that personal surety in Rome ‘était beaucoup plus un moyen de pression qu’un moyen de satisfaction par substitution’.639 Understandably, Roman creditors were reticent when it came to demanding repayment from someone’s sureties. Suing a debtor’s personal sureties rather functioned as a last resort held in stock to spur the sureties to put pressure on a debtor. When his former son-in-law Dolabella kept postponing repayment of Tullia’s dowry in 44, Cicero considered it unseemly ( ) to sue Dolabella’s sponsores. In the end he preferred to sue Dolabella himself (via his procurators), knowing well that he thereby forfeited the right to sue the sponsores.640 Of course, we should not exaggerate the creditors’ reticence to sue. The case of Heraclides’s debt to the Fufii shows an example of a surety actually repaying a debt. Q. Paconius Lepta and Ser. Sulpicius Galba were nearly forced to pay a debt of Pompey’s for which they had gone surety before the civil war. Only by publicly confronting Caesar – who had confiscated Pompey’s property – with the case did they succeed in persuading the dictator to repay the debt himself.641 So personal sureties were forced to repay the debts they guaranteed if necessary, but this was normally done only after they had intervened in vain with the debtor. That which is the only role of a guarantor in modern contractual systems was merely his ultimate duty – to be performed when all else had failed – in the Roman system, which relied primarily on negotiation and pressure from networks of common friends. 1.11 The purpose of loans. Credit is usually divided into productive and non-productive credit, according to whether the debtor intents to invest the money in a productive enterprise (the profits of which will subsequently repay the loan) or

638

CICERO, Att. XVI, 5, 2. See also Att. XVI, 1, 6. MACQUERON (1957), p. 107. 640 CICERO, Att. XVI, 15, 1-2; Fam. XVI, 24, 2. 641 CICERO, Fam. VI, 18, 3; VALERIUS MAXIMUS VI, 2, 11. 639

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whether he merely intends to finance consumption or status related expenditures. We will return to the problem of defining productive credit more precisely when surveying the attested instances of productive credit (cf. infra). Finley and his followers are quite categorical in their evaluation of ancient Roman and Greek credit. Although borrowing was very frequent, virtually all loans were meant to finance social, political and status expenditure, or to cover unexpected deficits.642 Finley makes an exception for maritime credit but in his eyes this was rather an insurance mechanism than a form of credit. In short, productive loans were marginal to the credit system. It is hard to see how Finley could deny the credit aspect of maritime loan contracts since the debtors used the money to finance their enterprises and were clearly expected to repay the money with interest. Although one may concede that the exorbitant interest rates charged on maritime loans included an insurance premium, this does not imply that the money was any less a ‘loan’. Car dealers today offer credit arrangements including clauses stipulating that payments stop when the buyer has an accident with a total loss or when the car is stolen. The arrangement, therefore, includes a limited insurance, but this does not make it any less a credit arrangement.643 Opposed to Finley are modernist researchers such as Cohen, Maselli and Petrucci, who argue that the ancient credit systems of Athens and Rome were well organised and capable of funding large scale business activities. They believe that productive credits, organised on a professional basis, were common and essential to the economy. Of course, loans to finance consumption and non-productive credit existed as they do today, but they did not dominate the financial system.644 Bogaert (in his study on banks in the Greek world) takes a much more empirical approach to the problem by systematically analysing all sources available. His conclusion is that there are little or no indications that Greek banks regularly gave loans for productive purposes. The explanation offered by Bogaert is that interest rates were usually too high to

642

See FINLEY (1973), p. 141-142; MILLETT (1991), p. 59-74; BÜRGE (1980), p. 125. See also ANDREAU (1977) on Finley’s ideas about credit in the ancient world. For productive vs. nonproductive credit see MILLETT (1991), p. 229-232. 643 On maritime loans see ROUGÉ (1980); ROUGÉ (1966), p. 345-360; ANDREAU (1999), p. 5456. 644 COHEN (1990); COHEN (1992); MASELLI (1986); PETRUCCI (1991).

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attract entrepreneurs. From the banker’s point of view the high interest rates were necessary to compensate for the high risks involved in lending out their client’s money. However, Bogaert also shows that banks were not the only source of credit. Wealthy people commonly lent their own money at considerable interest rates. Thus, for instance, maritime loans were the exclusive domain of wealthy financiers using their own private means.645 Andreau reached the same conclusions for the Roman banking system. Argentarii (and later nummularii) had only limited means at their disposal. The loans that they extended were relatively small and had to be paid back after a brief period of time (a few months at the most). Apart from the argentarii, however, wealthy faeneratores with their own private means were active, lending much larger sums for longer periods.646 Much of the disagreement stems from the problem of generalisation. Instances of productive credit are rare, but they exist and given the fact that our sources focus on the aristocracy and not on the business world, it seems logical that non-productive credit is more frequently attested.647 The issue need not concern us further here. However, where does amicitia fit in? Were there specific expenditures for which one borrowed money preferably from ‘friends’ and others for which one turned to professional financiers? Did the duty to assist friends with loans depend on the purpose for which the money was lent or were amici expected to give loans regardless of the debtor’s intentions? a) Political debts.

Political debts are among the best attested in the Late Republic and are generally considered as a symptom of the collapse of the Republican political system. The costs of pursuing a political career skyrocketed as the importance of grandiose games, public building projects and electoral (and other) bribery increased. Only very few candidates had the means to cover the expenses required. L. Aemilius Paullus, for instance, (consul in 50) became heavily indebted after 55 when he took it upon himself to

645

BOGAERT (1968), p. 356-359; BOGAERT (1966), p. 50-51, 80-84.; contra see COHEN (1992), p. 136-189 (for a response see BOGAERT (1995)). 646 ANDREAU (1987), p. 359-438, 527-606; ANDREAU (1974), p. 73-122; ANDREAU (1985); ANDREAU (1978). See also BÜRGE (1987). 647 On the existence of productive credit see e.g. PLUTARCH, Mor. 523F and of course the tablets from the Agro Murecine (CAMODECA (1999); VERBOVEN (2000b)).

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renew the Basilica Aemilia, built by his great-grandfather.648 Faustus Sulla (quaestor in 54) faced huge expenses that dragged him deeply into debt when he agreed to rebuilt the Curia Hostilia, which had been burned down in the riots following the murder of P. Clodius.649 Many politicians fell victim to a dangerous cycle driving them into huge debts that they could only repay when they obtained a provincial command, i.e. when they progressed at least to the level of praetor. Failure inevitably led to bankruptcy and social degradation.650 Caesar accumulated debts throughout his early career. Probably after his quaestorship he was appointed curator of the Appian Way, for the repair of which he expended vast sums of money. As an aedile he not only celebrated the Ludi Romani and the Megalesia in a particularly magnificent manner, but also organised lavish gladiatorial games in honour of his father. In 63, he relied on bribery to obtain the office of pontifex maximus. By the time he reached the praetorship he owed the incredible sum of 25 million sesterces. In 61, his creditors prevented him from leaving Rome to take up the governership of Hispania Ulterior until Crassus went surety for 830 talents (19,920,000 sesterces). Crassus’s intervention (which was clearly politically motivated) shows that at least the majority of Caesar’s creditors were common faeneratores who speculated on their debtor’s successful career.651 Caesar was exceptional only with regard to the enormity of his debts. We find numerous other politicians deeply in debt over the course of the first century BCE. Both Cicero and Sallust agree that Catiline was driven to conspire against the senate by the huge debts he had incurred in vain to obtain the consulship. According to Sallust, Catiline denied that his actions were motivated by his indebtedness and asserted that his credit was in any case upheld by the liberalitas of his mistress Aurelia Orestilla and her daughter. The opposition between the threat of his creditors and Orestilla’s liberalitas indicates that the former were professional moneylenders.652 Antonius Hybrida was expelled from the senate in 70

648

SHATZMAN (1975), p. 289-290. SHATZMAN (1975), p. 335-336. 650 GELZER (1912), p. 91-102; SHATZMAN (1975), p. 84-98; ROYER (1967); HOPKINS (1978), p. 48-49; FINLEY (1973), p. 53-55; VERBOVEN (1993a), p. 83-84. For political debts in Athens see MILLETT (1991), p. 85, 89, 153-519. 651 SUETONIUS, Iul. 13; 18, 1; 54, 1; PLUTARCH, Caes. 5, 4; 7, 1-2; 11, 1; Crass. 7, 6. See SHATZMAN (1975), p. 347-348; GELZER (1912), p. 95-96 652 ASCONIUS, Tog. Cand. 73 (ed. Clark); CICERO, Cat. I, 14; SALLUST, Cat. 5, 7; 35, 5; Q. CICERO, Comm. Pet. 10; SHATZMAN (1975), p. 397-398. 649

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because his debts exceeded his assets. This did not prevent him from incurring new debts to start his political career anew. By the time he reached the consulship in 63 he was so deep in debt that Cicero could only just prevent him from joining Catiline’s conspiracy. Although we have no information on the identity of Antonius’s creditors were, we may infer from the fact that he was forced to sell a considerable part of his patrimony that they were professional faeneratores.653 M. Aemilius Scaurus incurred heavy debts during his term as aedile, which became legendary for its lavishness.654 A. Gabinius was on the brink of bankruptcy when he entered his tribunate in 67, according to Cicero, who emphatically asserts that his creditors were professional faeneratores.655 Electoral bribery was practised on an unprecedented scale in the consular elections of 54. Two candidates, M. Valerius Messalla Rufus and M. Aemilius Scaurus promised to pay 10 million sesterces to the centuria praerogatiua alone. Cicero claims that interest rates doubled in a few weeks time.656 Debt was again a major factor in the escalation leading to the second civil war in the late fifties BCE. Aemilius Paullus657 (consul in 50), C. Scribonius Curio658 (tribune of the plebs in 50), M. Caelius Rufus659 (aedile in 52), P. Sestius660 (praetor in 54 or 50) and Marc Antony661 (tribune of the plebs in 49) chose Caesar’s side. Lentulus Crus662 (consul in 49), Scribonius Libo663 (praetor in 50?), Metellus Pius Scipio Nasica664 (consul in 52) and Faustus Sulla665 (quaestor in 54) chose Pompey’s side.

653

ASCONIUS, Tog. Cand. 75; 78 (ed. Clark); Q. CICERO, Comm. Pet. 8; PLUTARCH, Cic., 12, 3; SHATZMAN (1975), p. 295-296. 654 ASCONIUS, Scaur. 16 (ed. Clark); PLINY, N.H. XXXVI, 113-114; SHATZMAN (1975), p. 290-292. 655 CICERO, Sen. 11; Sest. 18; 28; Pis. 12; 48; Schol. Bobb., p. 169 (ed. Hildebrandt (Teubner)); SHATZMAN (1975), p. 293-294; WILLIAMS (1973), p. 44. 656 CICERO, Q. fr. II, 15(14), 4; Att. IV, 15, 7. 657 PLUTARCH, Caes. 29, 3; Pomp. 58, 1; SUETONIUS, Iul. 29, 1; APPIAN, B.C, 2, 26; DIO XL, 63, 2; SHATZMAN (1975), p. 289-290. 658 PLUTARCH, Pomp. 58, 1; VELLEIUS PATERCULUS II, 48, 3-4; LUCANUS I, 269; IV, 819820; APPIAN, B.C. II, 26; DIO XL, 60, 2; SHATZMAN (1975), p. 396. 659 CICERO, Att. VI, 1, 23; VII, 3, 6-11; SHATZMAN (1975), p. 311. 660 CICERO, Att. VI, 1, 23; SHATZMAN (1975), p. 398. 661 CICERO, Phil. II, 4; PLUTARCH, Pomp. 58, 1; SHATZMAN (1975), p. 297-304. 662 CAESAR, B.C. I, 4, 2; VELLEIUS PATERCULUS II, 49, 3; SHATZMAN (1975), p. 333-334. 663 CICERO, Att. IX, 11, 4; SHATZMAN (1975), p. 397. 664 CICERO, Att. IX, 11, 4; CAESAR, B.C. I, 4, 2-3; SHATZMAN (1975), p. 335-336. 665 CICERO, Att. IX, 11, 4; PLUTARCH, Cic. 27, 3; SHATZMAN (1975), p. 309-310.

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It is remarkable to find how many ‘political’ debts seem to have been incurred from faeneratores. We know that political allies were expected to support each other financially and that important politicians such as Crassus and Caesar (in the late fifties) offered interest-free or cheap loans to buy political support. So why were so many promising young politicians burdened with commercial debts? The question has hardly been raised until now. Scholars seem to take it for granted that loans from kinsmen, friends and allies were insufficient. There is no clear-cut answer to the problem, but we may surmise that at least some politicians shrunk from becoming too dependent on the ‘mighty few’. Cicero was very embarrassed by the 800,000 sesterces he owed to Caesar on the eve of the civil war (cf. supra p. 124). Young politicians, like Caesar, may have turned to political magnates for financial support only as a last resort – in Caesar’s case when his creditors refused to allow another remission of a year. b) War credits.

The civil wars of the Late Republic were largely private affairs, and although cities and provinces were forced to contribute over and above the ordinary taxes they paid, the generals were always short of funds. In order to raise sufficient cash they borrowed heavily from allies, friends and relatives. During the civil war between Caesar and Pompey, Cato the Younger borrowed from his ward Lucullus, the son of Lucullus Ponticus666, while Pompey borrowed at least 1 million sesterces from Cicero.667 Brutus Albinus relied heavily on his friends to support the seven legions he commanded in the struggle against Antony. These friends in turn borrowed money to assist Albinus.668 Given the unpredictabilities of war, it is hardly surprising that we find no indication that professional money-lenders ever lent money to any of the warfaring parties. c) Luxuria.

It seems unlikely that the debts of young aristocrats like Caelius Rufus669, Q. Cicero filius.670 or Cornelius Dolabella671 had any direct

666

CICERO, Att. XIII, 6, 2; SHATZMAN (1975), p. 394. CICERO, Fam. V, 20, 9; Att. XI, 1, 2; 2, 3; 3, 3; 13, 4. 668 CICERO, Fam. XI, 10, 5. 669 CICERO, Cael. 17; SHATZMAN (1975), p. 311-313. 670 CICERO, Att. XIII, 42, 1; XV, 21, 1; 26, 1; XVI, 1, 6. 671 CICERO, Fam. II, 16, 5; DIO XLII, 29; QUINTILIAN, Inst. VI, 3, 99; SHATZMAN (1975), p. 331-332. 667

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connection with their political careers. ‘La jeunesse dorée’ of Late Republican Rome was famous for its extravagance, wantonness and dissipation.672 A number of heavily indebted noble women were reproached on these accounts. Sempronia, wife of D. Brutus (consul in 77) and mother of Brutus Albinus, is said to have become involved in the conspiracy of Catiline because she could no longer pay the debts she had incurred to pay for her debauchery.673 At the trial of Fonteius, Cicero accused the mother of the prosecutor, M. Plaetorius Cestianus, of having squandered her patrimony, leaving her son nothing but debts.674 Many years later, when he divorced his wife Terentia, Cicero accused her of incurring heavy debts to support her excessive life-style.675 It is impossible to assess the degree to which the reproaches made against some adolescents and women were merited. Clearly, however, the life-style expected from a Roman senator and his family demanded a considerable amount of conspicuous consumption.676 Plutarch relates how Antonius Creticus incurred heavy debts to support the generosity that he liked to show his friends.677 We have no example of loans made to finance excessive conspicuous consumption that could be construed as given for the sake of ‘friendship’.678 The only exception would be Q. Cicero trying to borrow money from Atticus in 45 in order to be able to celebrate his son’s election to Lupercal. However, not only did Atticus refuse to lend the money, he was also – as young Quintus’s maternal uncle – a very close relative by blood who could be expected to be exceptionally generous on such an occasion, since it would enhance his own glory and that of his family.679

672

Cf. ROYER (1967), p. 201-204; SCHNEIDER (1974), p. 209-210. SALLUST, Cat. 24-25; MÜNZER (1923). 674 QUINTILIAN, Inst. VI, 3, 51. 675 PLUTARCH, Cic. 41. 676 CF. FINLEY (1973), p. 53. See also PARKINS (1997), p. 91-92; SHATZMAN (1975), p. 94-96; SCHNEIDER (1974), p. 185-205. 677 PLUTARCH, Ant. 2, 3; CICERO, Phil. II, 44-45. 678 It is true that the purchase of lavish houses (like Cicero’s house on the Palatine hill) and suburban villas were alternative forms of status related expenses, but unlike expenses for ‘conspicuous consumption’ purposes, purchases of real estate were generally approved. Cicero’s purchase of his domus palatina was condemned because P. Sulla, whom he defended in court, financed it (cf. infra on the case). 679 CICERO, Att. XII, 5. 673

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d) Purchases.

It seems to have been a common practice to finance important purchases with loans. Property purchases, for instance, were quite commonly financed by this means. Even businessmen specialised in property (at least at the time of Caesar’s proscriptions) appear to have relied heavily on credit. Horace’s Damassipus ‘Mercurialis’ is said to have financed his real estate business by means of loans from faeneratores at the Ianus medius.680 When Cicero wants to demonstrate the iniquity of debt remissions in his De Officiis, he exclaims: ‘What is the true object (argumentum) of debt remissions if not that you could buy an estate with my money; that you would have your estate, but I would not have my money?’681 Heraclides from Temnos borrowed money from one Sex. Stloga in order to buy an estate in Cymae. We do not know whether or not the two men were amici, but the fact that Heraclides borrowed money at interest from the Fufii brothers to repay Stloga indicates that the loan from Stloga was a mutuum.682 On a much more modest scale, we find Volteius Mena the auctioneer borrowing 7000 sesterces (free of interest ) from his patron Philippus in order to buy a farmstead.683 When Cicero wanted to buy his Palatine house and the money promised by P. Sulla and Antonius Hybrida was not forthcoming, he considered borrowing from faeneratores among whom were Q. Caecilius (Atticus’s maternal uncle), his friend Q. Axius, Lentulus Spinther’s friend Q. Selicius and the senator Q. Considius.684 Valerius Messalla Niger (consul in 61) also borrowed from his amici to buy the Palatine house of Autronius Paetus.685 About the same time, Cicero was deeply in debt because of purchases made to decorate his villas. In a letter to Atticus, Cicero describes these debts as aes circumforaneum. Since the term ‘circumforaneus’

680

HORACE, Serm. II, 3, 18. See also VERBOVEN (1997b). CICERO, Off. II, 84: Tabulae uero nouae quid habent argumenti, nisi ut emas mea pecunia fundum, eum tu habeas, ego non habeam pecuniam? 682 CICERO, Flacc. 46-50. On Stloga see MÜNZER (1929). 683 HORACE, Epist. I, 7, 46-95. On borrowing to pay for purchases of land see also Dig. XIV, 1, 4 and see VERBOVEN (1997a), p. 48. 684 CICERO, Att. I, 12, 1; Fam. V, 5, 2. See also Att. I, 13, 6; 14, 7 and cf. supra p. 126. On Sulla’s financial help see GELLIUS XII, 12. Formally Sulla’s (and probably Antonius’s) financial support was a loan as well. In reality, however, the money was never meant to be paid back (cf. supra p. 123). 685 CICERO, Att. I, 13, 6. 681

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applies to things bought and sold on the market (on the forum), Andreau concludes that the aes circumforaneum also refers to money borrowed on the market, i.e. loans contracted from professional money-lenders (faeneratores) frequenting the forum in search of borrowers.686 It seems, therefore, that amici could be expected to lend money either free of interest or at a moderate interest rate to finance important property purchases.687 In the case of Messalla Niger’s house and his own domus Palatina, Cicero explicitly interpreted and justified such financial aid as help to achieve or maintain a position of dignitas.688 Yet when no funds from friends were available, a prospective buyer could easily turn to professional faeneratores to provide the necessary wherewithal. e) Building projects.

We have already seen that Aemilius Paullus and Faustus Sulla became deeply indebted on account of the expenses they incurred rebuilding the Basilica Aemilia and the Curia Hostilia. We classified these debts as ‘political’ because of the public nature of the buildings in question. However, private building projects could also be financed with loans. When P. Clodius destroyed Quintus Cicero’s house, Quintus turned to his brother-in-law Atticus for a loan.689 In the years that followed Quintus contracted more debts in order to be able to expand and embellish his villas in Arpinum and to improve their water supply. He repaid these debts with the money he made as a legate of Pompey in Sardinia and of Caesar in Gaul.690 Atticus’s financial support qualifies as a beneficium expressing solidarity in times of crisis and was, therefore, presumably free of interest. Clearly, however, the debts contracted to improve and embellish Quintus’s properties in Arpinum served a different purpose that could not be construed as creating a moral obligation to help. Unfortunately, we do

686

ANDREAU (1987), p. 708. However, we should not exclude the possibility that the term simply refers metaphorically to debts contracted when buying res circumforaneae, i.e. movables. Note also that according to a late commentator on Horace circumforani were clients of argentarii at auctions (PS.ACRO, in Hor. Serm. I, 6, 85-86, see ANDREAU (1987), p. 657). 687 See also Pliny the Younger, who counted on his mother in law to advance him the money needed to buy an estate adjacent to one he already owned (PLINY, Epist. III, 19, 8). Also Dig. XII, 1, 4. 688 CICERO, Att. I, 13, 6. 689 CICERO, Q. fr. II, 2, 1-2. 690 CICERO, Q. fr. II, 15b, 2-3.

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not know the origin of these debts or the personal relations Quintus may have had with his creditors. f) Repayment of debts.

It was not uncommon in ancient Rome for debts to be repaid with new loans. Latin even had a distinct word for such loans: uersura. The debts that were repaid by uersurae were not always the result of previous loans. Purchases on credit or dowryobligations could be met by uersurae as well. However, a uersura was almost by definition a loan at interest contracted from specialised money-lenders while the obligation to help friends and relatives repay their debts was a strong moral obligation that gave rise to gifts and interest-free loans. In many such cases, the difference between gifts and loans was slight.691 The most conspicuous instances of loans to repay debts were politically motivated. Caesar repaid the previously mentioned debts of Scribonius Curio692, Marc Antony693 and Aemilius Paullus.694 As I have indicated, we cannot be sure whether Caesar’s interventions consisted of gifts or loans, although his reputed strategy of binding allies by giving them interest-free or cheap loans would argue in favour of the latter. Antony may have resorted to the same stratagem when he offered to pay young Quintus Cicero’s debts to the amount of 400,000 sesterces.695 Curio’s father ended up paying the six million sesterces owed by Marc Antony for which his son had stood surety. According to Cicero, Curio filius was Antony’s lover at the time.696 Cicero agreed to pay Tullius Montanus’s debt to the state because he felt it was his duty to do so (pertinet ad nostrum officium). However, when the time came for Montanus to pay up, the money promised by Cicero was not available because his steward (dispensator) Eros had neglected to set the money aside and Montanus was forced to borrow at a very high interest rate from some faeneratores. Cicero was very much embarrassed and entreated Atticus to

691

Cf. CICERO, Off. II, 55; PLUTARCH, Rom. 13, 6. See also supra p. 74. PLUTARCH, Pomp. 58, 1; VELLEIUS PATERCULUS II, 48, 3-4; LUCANUS I, 269; APPIAN, B.C. II, 26; DIO XL, 2; SHATZMAN (1975), p. 396. 693 CICERO, Phil. II, 4; PLUTARCH, Pomp. 58, 1; SHATZMAN (1975), p. 297-304. 694 PLUTARCH, Caes. 29, 3; Pomp. 58, 1; SUETONIUS, Iul. 29, 1; APPIAN, B.C. II, 26; DIO XL, 63, 2; SHATZMAN (1975), p. 289-290. 695 CICERO, Att. XV, 21, 1. 696 CICERO, Phil. II, 42; 45; PLUTARCH, Ant. 2, 3. It would seem that Antony had inherited the debts from his father. Curio probably stood surety for a renewal (nouatio) off these debts. 692

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repay Montanus’s creditors as soon as possible.697 Sex. Naevius offered his partner in business and relative by marriage P. Quinctius to repay a debt he owed to the children of a certain Scapula.698 I have already discussed the important officium amicitiae to support a friend’s credit and I have mentioned the trivial difference between gifts and loans in this connection (cf. supra p. 74). However, not all loans incurred to pay debts came from friends or relatives. The case of Tullius Montanus is illustrative in this respect. In 51, Cicero instructed Atticus to arrange a uersura for him to repay his debt to Caesar.699 In 44, Atticus was again commissioned to arrange a loan (undoubtedly at interest) of 200,000 sesterces for a period of 5 months.700 When he left Italy in 44, Cicero asked Balbus to keep an eye on his accounts and to intervene financially if necessary to cover debts.701 Heraclides from Temnos repaid his debt to Sex. Stloga by borrowing at interest from C. and M. Fufius.702 The word uersura itself is indicative of how common it was to borrow at interest to repay other debts. Although the word originally meant ‘the borrowing of money to pay a debt’ it soon acquired the more general meaning of a ‘loan at interest’ (as opposed to mutuum).703 g) Dowries

We have already seen that assistance in paying the dowries of the daughters of one’s friends was traditionally considered an important duty of friendship. However, when I discussed the role of gifts in Roman friendship and patronage we saw that we have no concrete examples from the Late Republic of Donations made to provide dowries for the daughters of amici. Given the close connection between mutua and Donations it is hardly surprising that we have no unambiguous examples either of loans given or debts made to provide for dowries. The only exception is the case of Tullia. In 48-47, Cicero had great difficulties in delivering the second instalment of his daughter’s dowry and he appealed to Atticus

697

CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1. CICERO, Quinct.15-20. On Naevius and his relation with the Quinctii see Cicero, Quinct. 16; 25; NICOLET (1966-1974), p. 998-999; MÜNZER (1935). 699 CICERO, Att. V, 1, 2. 700 CICERO, Att. XV, 15, 3; 17, 2; 20, 4; XVI, 2, 1-2; 2, 5; 6, 3; 7, 6; 15, 5-6; Fam. XI, 29, 3. 701 CICERO, Att. XVI, 3, 5. 702 CICERO, Flacc. 46-50. 703 Cf. MASELLI (1986), p. 179-181 (‘debito oneroso’); FRÜCHTL (1912), p. 49-51. 698

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for help. Thanks to an unexpected inheritance that Cicero received, Atticus managed to arrange the matter so that the instalment was properly paid, but we may infer from Cicero’s letters to Atticus concerning the case that both men took it for granted that Atticus would advance the money if necessary.704 An interesting passage in Terence’s Phormio shows that when money had to be borrowed for a dowry, interest bearing loans were only considered when interest-free loans could not be found.705 h) Emergencies and crisis.

Emergency loans were often Donations rather than loans. Whether or not the money was paid back depended on the debtor’s recovery. While he was in exile, Cicero received financial support from his brother Quintus, from Atticus, Rabirius Postumus, Ateius Capito and others whose names we don’t know.706 We classified this support as gifts and discussed it accordingly in our previous chapter, but at least in the case of Quintus we know that Cicero was afterwards at pains to repay his brother and tried to do so by borrowing from his amici.707 The money Cicero received from Atticus’s bailiff in Greece in 49-48 is referred to as a loan, but given the precariousness of Cicero’s situation we can assume that it was at least potentially a gift.708 About the same time, Cicero borrowed 30,000 sesterces from his old friend Cn. Sallustius, who was with him in Pompey’s camp.709 Atticus had a reputation for helping friends in need with gifts and interest-free loans. We have already seen that he gave money to C. Marius the younger to help him escape from Sulla, and also to Brutus in 44 to escape from Antony. In 44, he lent money without interest to Antony’s wife, Fulvia.710 i) Bribery

A special category of debts were those contracted to bribe officials. According to C. Cornelius, tribune of the plebs in 67, cities and communities

704

CICERO, Att. XI, 2, 2; 3, 1; 4a; 25, 3; 23, 3; XII, 5c. TERENCE, Phorm. 299-301. 706 CICERO, Att. IV, 2, 7; Fam. XIII, 29, 2; XIV, 1, 5; 2, 3; Q. fr. I, 3, 7; Att. IV, 3, 6; Rab. Post. 47.. 707 CICERO, Att. IV, 3, 6. 708 CICERO, Att. XI, 13, 4. 709 CICERO, Att. XI, 11, 2; 13, 4. 710 For the gifts to Marius and Brutus see NEPOS, Att. 2, 2; 8 and cf. supra p. 83. For Fulvia see NEPOS, Att. 9, 4-5. 705

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all over the Mediterranean were oppressed by the debts they had to contract each time they sent an embassy to the senate to pay for the ‘gifts’ that influential senators expected in exchange for their support.711 Cornelius’s attempts to push through a senatorial decree forbidding loans to foreign embassies failed but later the same year or, perhaps, in 58, A. Gabinius (as tribune of the plebs or as consul) succeeded in pushing through a law to the same effect.712 Cicero’s Verrine orations perfectly illustrate the corruption of the Late Republican government. Verres is said to have demanded money for public contracts, judgements, decrees and special clauses in his praetorian Edict.713 St. Oppianicus allegedly bribed the triumuir capitalis Q. Manlius to escape accusation in the murder of Asuvius.714 In his trial for the attempted murder of Cluentius, Oppianicus tried to buy a majority of the jury with help from a certain Aelius Staienus, who had accepted a similar bribe before in a case against Safinius from Atella. Oppianicus’s prosecutor A. Cluentius bribed the jury in his turn. Apparently, Cluentius offered more and Oppianicus was convicted.715 These are merely a few examples. The list of known bribery cases is much longer.716 What is interesting for our subject, however, is that at least in a number of cases the money in question was borrowed. A notable from Halaesa, Q. Caecilius Dio, who was a client of Q. Mettellus Creticus, borrowed 1 million sesterces to bribe Verres in order to persuade him to acknowledge an inheritance that Dio’s son had received.717 We don’t know where Dio got his loan, but Verres had set up a scheme in Sicily to finance his own bribes using the 12 million sesterces the senate had voted him to buy extra grain for Rome. The money was deposited with the tax company responsible for collecting the port dues and taxes on grazing in Sicily (the societas scripturae et sex publicorum). L. Carpinatius, who was promagister of the company, lent the money at 24% interest on Verres’s behalf.718

711

ASCONIUS, Corn. 50-51 (ed. Clark); VERBOVEN (1993b), p. 293-294. CICERO, Att. V, 21, 2; VI, 2, 7. On the lex Gabinia see BONNEFOND (1984); BONNEFOND (2000), p. 333-347; BROUGHTON (1937); NICOLET (1971b), p. 1221; BARLOW (1978), p. 185. 713 Cf. CICERO, 2 Verr.I, 104-154. 714 CICERO, Clu. 36-39. 715 CICERO, Clu. 59-81. 716 Cf. SHATZMAN (1975), p. 54-55, 67-68, 1-82, 88-90. 717 CICERO, 2 Verr.I, 27-28; II, 19-24. 718 CICERO, 2 Verr. II, 169-170; 186-189; III, 163-187. 712

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Crassus is thought to have bought the judges in the Bona Dea case against P. Clodius. We don’t know whether this was a gift or a loan to Clodius, but given Crassus’s reputation for binding his allies with cheap loans, the latter is more likely.719 A spectacular story of bribery financed by loans is that of the Egyptian king Ptolemy XII Auletes. He bought his recognition as king from the senate with a bribe of 6000 talents to Caesar, Crassus and Pompey. When the Egyptian people expelled him he returned to Rome where he again borrowed heavily to bribe influential senators to support his return to Egypt manu militari. Finally, he succeeded in convincing Caesar, Crassus and Pompey again with a new bribe of 10,000 talents (240 million sesterces) to put him back on the throne. Nevertheless, at least part of the bribe was already paid in 56. The loans were organised by Rabirius Postumus, who reportedly lent not only much of his own money at interest to the king, but also that of his amici.720 Although the need for loans to finance bribery could be politically manipulated – as we saw happening perhaps in the case of Crassus and Clodius – we have no indication that money for bribes normally came from amici. On the contrary, we see that the need for bribes created a lucrative ‘market’ for faeneratores. At least a majority of the loans involved must have come from professional money-lenders. j) Travel and ‘accommodation’ expenses.

Travel in the Ancient World was slow and expensive. In some cases, borrowing the necessary money was inevitable. The commonly referred

719

Cf. WARD (1977), p. 205-209. Against the identification of Crassus see TATUM (1999), p. 8285. Cf. also supra p. 144 on the case. 720 CICERO, Rab. Post. 4-6, 25, 39. On C. Rabirius Postumus see now esp. SIANI-DAVIES (1996); also DESSAU (1911); SHACKLETON BAILEY (1976), p. 33-34, 127; NICOLET (1966-1974), p. 1000; DENIAUX (1993a), p. 490-492; BROUGHTON (1951-1986) II, p. 612, Supp. p. 80, 181. Bürge believes that Rabirius acted as a henchman for Caesar and Pompey turning the bribe Ptolemy paid into ‘a loan’ (BÜRGE (1980), p. 136-137). However, (1°) Postumus had a background in ‘international’ finance as a publicanus and faenerator. (2°) Cicero refers to creditores in a letter to Lentulus Spinther (Fam. I, 1, 1) and (possibly) in a letter to Trebatius Testa (Fam. VII, 17, 1) (3°) The facts of the particular case are beside the point, what matters is the veracity of the picture painted by Cicero, which had to be persuasive enough to convince the jury to absolve Postumus. On the whole affair see CICERO, Vat. 25; Att. II, 9, 1; 26, 2; Fam. I, 1, 1-2; 2, 1; 3, 2-4; 4, 1; 5a, 2; 5b; 6, 7; 7, 3; 9, 7; VII, 17, 1; Q. fr. II, 2, 3; 3, 1-4; 4, 4-6; 8, 2; 10, 2; Cael. 23-24, 51-52; CICERO, Har. Resp. 34; DIO XXXIX, 12, 3; 13-16; 49; PLUTARCH, Caes. 48; Cat. 35; Pomp. 48-49; STRABO, 17, 1, 11; SUETONIUS, Iul.54, 3; TACITUS, Dial. 21; CAESAR, B.C. III, 107, 6. See also SIANI-DAVIES (1997); SHATZMAN (1971); BADIAN (1968), p. 73-74; CRAWFORD (1985), p. 206-207.

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to example is that of Cicero in 49, who needed money to leave Italy and join Pompey’s army in Greece. Caesar’s invasion had caused a complete breakdown of the financial markets and money was hard to find. Cicero tried to get the money from the Oppii from Velia, who had dealings with Terentia and who had some connection with Atticus. Most commentators on Cicero interpret the Oppii as bankers to whom Terentia owed money that she could not repay because of the financial crisis. Cicero would then have applied for a new loan. However, the passages informing us about the affair are ambiguous and I try to show elsewhere721 that they make much more sense if we assume that the Oppii owed money to Terentia they could not repay and that Cicero counted on their repayment to cover his travel expenses.722 A more interesting case is Tiro’s stay in Patrae. Cicero’s favourite freedman and secretary had accompanied him to Cilicia in 51-50, but fell sick on the return voyage in Patrae, where Cicero and his companions stayed with the Roman businessman M’ Curius. Curius was a cliens of Atticus and had been recommended by him to Cicero. He used the occasion to ingratiate himself with Cicero by including him in his will for a small share. Of course, Tiro was welcome to stay longer and Cicero asked Curius to advance the money needed to pay Tiro’s doctor. We may surmise that Cicero in fact relied on Curius’s hospitality and amicitia to advance the money, which he would then pay back to Curius’s representatives in Rome. When Cicero learned afterwards that Tiro had borrowed money from other people in Patrae, he wrote to Atticus saying that he hoped that Tiro’s bashfulness was to blame and not stinginess (illiberalitas) on Curius’s part. The implication is quite clear: Curius’s duties as friend and host included advancing Tiro the money required.723 k) Productive loans

Before starting our survey of attested productive loans, it is good to define clearly what the term implies. As Millett rightly notes, the ‘productive’ quality of a loan refers to the purpose for which it is used. Therefore, although by definition all interest-bearing loans produce an income for the creditor, not every interest-bearing loan is ‘productive’. On the other hand, an interest-free loan can be used for productive purposes

721

VERBOVEN (2000a) CICERO, Att. VII, 13, 5; 13a, 1; 22, 2; 26, 3;VIII, 7, 3; X, 4, 12; 7, 3. 723 CICERO, Fam. XVI, 9, 3; Att. VIII, 6, 5. On Curius’s relation with Cicero and Atticus cf. infra. 722

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by the borrower and, therefore, an interest-free loan might be ‘productive’. In short, a loan is productive in a technical sense when and only when the money is used to increase or sustain economic production, including the production of services such as those provided by merchants. We should note that although the interest-bearing aspect of loans is irrelevant in determining their productive aspect, a loan may rightly be termed productive when it is extended to a financier or a banker who will subsequently use the money to extend a non-productive loan at a higher rate of interest. The first loan is productive because it supports the enterprise of the financier or banker (producing financial services); the second is not because it does not increase or sustain economic production.724 Thus the loans extended to, for instance, P. Sittius constitute productive credit while the loans extended by P. Sittius to the king of Mauretania do not. This definition is larger than some more ‘modern’ definitions that focus more on investment credits, which may be defined as credits contributing to the capital formation of enterprises. Such ‘investment credits’ played hardly any significant role in the Ancient World and they continued to be rare until the nineteenth century, well after the first industrial revolution had taken off. It would be pointless to use the concept of productive credit in this sense for the ancient economy.725 One further specification may be useful. Pleket argues that money lent by peasants to replace broken tools could be regarded as productive credit because although it did not increase agricultural yield, it was essential to sustain production. Millett rejects Pleket’s assertion because it implies changing ‘the terms of reference away from the capitalist conception of productive credit’. The hypothetical peasant may have taken out the loan to be able to continue producing the food he needed to survive, but he did not take out the loan in order to increase his marketable production. In other words, his action was not economically motivated and therefore the concept of productive credit does not apply.726 I agree with Millet that the distinction is important, although I still believe that the term ‘productive credit’ sensu largo is useful to distinguish loans to support or increase non commercialised production from loans used for consumption purposes or status expenditure. Nevertheless, in these pages I will adhere to Millet’s conception.

724

See MILLETT (1991), p. 229-232. See ANDREAU (1999), p. 151. 726 PLEKET (1971), p. 434; MILLETT (1991), p. 230. 725

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In this perspective ‘productive credit’, therefore, applies only to market situations. To what degree did commercial enterprises and projects depend on credit and where did this credit come from? Research on the archive of the Sulpicii found in Pompeii clearly shows that the trading community of Puteoli enjoyed credit facilities of the order of several tens of thousands of sestertii and more.727 Seneca asserted that a man who wanted to do business had to be willing to incur debts.728 Horace’s Damasippus ‘Mercurialis’ was a dealer in real estate and art whose business depended on the money-lenders at the Ianus medius (the heart of Roman finance).729 The Late Republican jurist A. Ofilius discussed the case of a ship’s captain (magister nauis) borrowing money to repair his ship without the express authorisation of his master (exercitor).730 So at least the Italian businessmen depended to a considerable degree on credit facilities offered by professional or semi-professional financiers.731 This brings us to men like C. Vestorius, Cluvius from Puteoli, Rabirius Postumus, P. Sittius, L. Egnatius Rufus, Q. Caecilius, M. Tullius the scriba and T. Pinnius, whom we know acted as financial intermediaries. They belonged to what Andreau calls the ‘intermédiaires de crédit’ and played an important role as middlemen between the aristocracy (with its vast fortunes) and the rest of society. They had good contacts with the elite and in a number of cases we can establish amicitiae between them and their aristocratic ‘customers’.732 As already mentioned, Cicero described the relation between Rabirius Postumus and his financiers as one of amicitia. Cluvius, Vestorius, Tullius the scriba and Egnatius Rufus were amici of Cicero and his brother733, Vestorius also (mainly) of Atticus.734

727

CAMODECA (1992); CAMODECA (1994); CAMODECA (1999); BOVE (1984); ANDREAU (1995b); VERBOVEN (2000b) 728 SENECA, Epist. 119, 1: Vt negotiari possis, aes alienum facias oportet. 729 HORACE, Serm. II, 3; 18-26; 69-76; PORPHYRIO, in h. l.; PS.-ACRO, in h.l. For the Ianus medius see ANDREAU (1987), p. 334-335, 707-708; ANDREAU (1999), p. 136-137; FRÜCHTL (1912), p. 11-12; BARLOW (1978), p. 199; NICOLET (1985), p. 819; VERBOVEN (1993a), p. 76-77. On Damasippus (undoubtedly to be identified with P. Licinius Crassus Iunianus Damasippus or his son) see VERBOVEN (1997b). 730 Dig. XIV, 1, 1, 9. More generally see ibid. 8-11; Dig. XIV, 1, 7. 731 See also ANDREAU (1999), p. 148. 732 ANDREAU (1985), p. 373-410; ANDREAU (1983); ANDREAU (1978); BÜRGE (1987), p. 488-500; RAUH (1986). 733 Tullius the scribe: CICERO, Att. VIII, 11b, 4; SHACKLETON BAILEY (1965-1970) III, p. 194195; Vestorius: CICERO, Att. IV, 14, 1; 16, 4; XIII, 45, 3; Cluvius instituted Cicero heir to a considerable part of his property (cf. infra); Egnatius: CICERO, Fam. XIII, 43, 1; 45; 47; 73; 74. 734 CICERO, Att. IV, 16, 4; VI, 2, 3.

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Q. Caecilius was a protégé of Lucullus Ponticus735 and P. Sittius of P. Sulla.736 There were a number of different ways in which these intermediaries operated. Rabirius Postumus borrowed money at interest that he subsequently lent out at a higher interest rate. The difference between the interest rate he charged and the one he had to pay himself determined his profit.737 Cicero claims that P. Sittius had contracted debts in order to be able to do business (negotii gerendi studio (Sull. 58)).738 Augustus degraded some equites because they had borrowed money at a moderate rate of interest in order to place it out at a higher interest rate.739 The loans that these enterprising faeneratores-intermediaries took out clearly qualify as productive credit, but what about the loans they extended? There seems to have been a preference for loans to kings, peoples and cities, to judge from what we know of Rabirius Postumus, T. Pinnius, P. Sittius and Cluvius.740 However, did they also lend money to merchants and other entrepreneurs? We do not know for sure, but we do know that at least some of them were engaged in other business activities as well. Vestorius is known as the owner of workshops in Puteoli producing caeruleum (a kind of blue dye for cloth).741 C. Rabirius Postumus returned from Egypt on a ship laden with Egyptian glass, linen and papyrus and he also seems have been engaged in the trade of luxury wines.742 The faeneratores at the Ianus medius who financed Damasippus’s real estate and art business acted as intermediaries for the aristocracy. Cicero advised his readers in the De Officiis to turn to the Ianus medius for financial advice.743 A commentator on Horace asserts that the Ianus medius

735

VALERIUS MAXIMUS VII, 8, 5; NEPOS, Att. 5, 1 CICERO, Sull. 57. 737 See CICERO, Rab. Post. 39 and cf. supra p. 129. 738 Compare also DEMOSTHENES, Phorm. (XXXVI) 5: Pasion borrowed money out of (see MILLETT (1991), p. 72-74). 739 SUETONIUS, Aug. 39, 1: pecunias leuioribus usuris mutuati grauiori faenore collocassent. The practice could be highly profitable, cf. e.g. TPSulp. 69 (CAMODECA (1999), p. 167-168) where a profit of 16.7 % is made on a similar deal. 740 Sittius: CICERO, Sull. 56-59; Pinnius: Fam. XIII, 61; Cluvius: Fam. XIII, 56. 741 Cf. D’ARMS (1981), p. 49-55; TCHERNIA (1968-1970), p. 51-82; ANDREAU (1983); RAUH (1986), p. 18-19. 742 Cf. SIANI-DAVIES (1996), p. 218-220; DESSAU (1911); NICOLET (1966-1974), p. 1000; DENIAUX (1993a), p. 259, 490-492. Note that the Egyptian wares were local royal monopolies (SIANI-DAVIES (1997), p. 114). 743 CICERO, Off. II, 87. 736

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was the place where creditores and faeneratores met, some to ‘return’ interest (alii ad reddendum (fenus)), others to place loans at interest (alii ad locandum fenus).744 Clearly not all faenerator-intermediaries limited themselves to lucrative but highly risky usury overseas. A last instance of productive credit viewed from a different standpoint can be found for Q. Cicero. Quintus invested heavily in his Arpine estates between 56 and 53. Much of the expense went on the embellishment of the urban villas he owned there and the purchase of new domains, but part was also invested in an aqueduct to improve the irrigation of large tracts of meadowland. A road leading to one of the estates was improved to facilitate access. Unfortunately, we do not know where Quintus borrowed the money he needed.745 We have no examples of interest-free or cheap loans for productive purposes. Insofar as productive loans were extended, they seem to have been interest-bearing. Millett gives a plausible explanation when he asserts that ‘(relatives and friends) would naturally look askance at the recipient of a friendly loan who took advantage of their open-handedness for his own financial profit.’746 Nevertheless, it does not follow that creditor and debtor could not be linked by amicitia. Cicero asserted that a homo liberalis assisted his friends in ‘acquiring or increasing their belongings’.747 The case of Rabirius Postumus shows that the argument could be used to persuade a jury indicating that it was not wholly unrealistic.748 Cicero wrote at least one letter of recommendation for Cluvius from Puteoli.749 M. Tullius scriba was Cicero’s scribe in Cilicia.750 Of course, these ‘business friendships’ did not necessarily transcend the level of calculated instrumental alliances, but they did encompass an exchange of valuable unspecified resources including recommendations, legal assistance, practical help in technical matters, hospitality, information, and so forth. Although the amicitiae in question were purely instrumental, they were not merely ‘social niceties’.

744

PS.-ACRO, in Hor. Sat. II, 3, 18. CICERO, Q. fr. II, 15b, 2-3. On Quintus’s estates in Arpinum see Q. fr. II, 6, 4; 3, 1; Att. IV, 7, 3; V, 1, 3; SHACKLETON BAILEY (1980), p. 203; SHATZMAN (1975), p. 426. 746 MILLETT (1991), p. 73. 747 CICERO, Off. II, 55: uel in re quaerenda uel augenda. 748 CICERO, Rab. Post. 4. 749 CICERO, Fam. XIII, 56. 750 See CICERO, Att. V, 4, 1; Fam. V, 20, 1-2; VIII, 11b, 4; XIII, 22, 4. 745

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1.12 Motives of creditors. However, in the world or credit, it takes two to tango. We have until now only surveyed the purpose of loans from the viewpoint of the debtor and so our analysis is still one-sided. Why and when did a Roman creditor agree to lend his money to someone and how did considerations of ‘friendship’ play a role in his decision to extend a loan? a) Profit.

Faeneratio – lending money at interest – was a business and naturally aimed at making a profit. At a moderate 6% interest the 15 million sesterces that Q. Considius had out on loans in 63 would have brought in an annual 900,000 sesterces. If we assume an interest rate of 12% (still reasonable in the light of the Catilinarian crisis) it would have brought in 1,800,000 sesterces. This was more money than could be made by agriculture and explains well enough why some wealthy Romans engaged in money-lending at interest. b) Masked gifts and payments.

The lex Cincia forbade gifts to non-kin exceeding a certain (unknown) value. We have already seen that this law was aimed specifically at ‘gifts’ to lawyers and orators. One way to bypass it law was to mask illegal gifts as ‘interest-free loans’, which, of course, would never be repaid. The loan of 2 million sesterces P. Sulla gave to Cicero in 62 is a classic example of such a case. The money Antonius Hybrida promised in exchange for Cicero’s ceding him the province of MacedoniaAchaea is probably another example.751 c) Gratia and fides.

However, why would a creditor show liberality to a debtor by giving him an interest-free or cheap loan or by granting him a remission of debt? Gratia, both in the sense of ‘gratitude’ and ‘influence’, seems to have played a major part. We have already seen how political and military leaders used loans to gratify and bind their supporters. Crassus showed the way and Caesar followed.752

751

On Sulla: GELLIUS XII, 12; CICERO, Att. I, 13, 6. On Antonius: Att. I, 12, 1; 13, 6; 14, 7; Fam. V, 5, 2. On the lex Cincia cf. Supra p. 75-78 752 Crassus: SALLUST, Cat. 48, 5: plerique Crasso ex negotiis priuatis obnoxii; SUETONIUS, Iul.27, 1: omnibus uero circa eum atque etiam parte magna senatus gratuito aut leui faenore obstrictis.

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The effectiveness of this strategy is made clear by Cicero’s embarrassment over the debt of 800,000 sesterces he owed to Caesar in 51-50: ‘it is unseemly to be in debt towards a political opponent’, he wrote to Atticus shortly before the civil war broke out.753 Accepting a free or cheap loan meant associating oneself with the person who extended the loan. A loan could be offered and refused because the person to whom the loan was offered did not wish to be put under an obligation toward the one who offered it. Seneca, for instance, relates an anecdote about Iulius Graecinus, who refused an interest-free loan from Paullus Fabius Persicus and C. Caninius Rebilus because he did not wish to be associated with persons of such infamy (infamia).754 Sometimes a debtor counted on the influence he had on someone to obtain a loan. The creditor’s liberality was then an answer to the gratia he owed to his debtor. Cicero’s loans to Axius’s son and to Tullius Montanus are examples of such occasions.755 Perhaps we should add the financial help Cicero expected from Clodius Hermogenes in 45.756 We may also note the arguments used by Cicero to persuade Antonius Hybrida to deliver the money both men had agreed upon: ‘Were I to expect the highest services (officia) from you, nobody should regard it with surprise. For everything that might concern your interest (commodum), your honour (honor) and dignity (dignitas) has come your way through me. That you have shown me no gratitude (gratia) in return you are yourself the best of witnesses’757 Vestorius’s liberalitas towards Cicero in 54 shows that businessmen were sensitive to the rules of gratia.758 Egnatius Rufus’s giving Quintus a loan to repay the dowry of his ex-wife Pomponia (Atticus’s sister) provides

753

CICERO, Att. VII, 8, 5: Caesari et instrumentum triumphi eo conferendum; est enim esse. On the role Caesar’s liberalitas played in his relation with Cicero and his brother see BENOEHR (1986b). 754 SENECA, Ben.II, 21, 6. 755 Axius’s son: CICERO, Att. XII, 2; 13, 2; 15, 4; Montanus: Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1; cf. supra p. 157-158. 756 CICERO, Att. XII, 25, 1; 30, 2; 31, 1-2. It is usually assumed that Hermogenes was a debtor of Cicero, but this is inconsistent with the fact that Cicero asked for help and did not demand repayment. The qualification adiumentum to describe Hermogenes’s intervention indicates that he was free to refuse the money. 757 CICERO, Fam. V, 20, 2: Ego si abs te summa officia desiderem, mirum nemini uideri debeat. omnia enim a me in te profecta sunt quae ad tuum commodum, quae ad honorem, quae ad dignitatem pertinerent. pro his rebus nullam mihi abs te relatam esse gratiam tu es optimus testis. 758 CICERO, Att. IV, 6, 4; 16, 4.

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another example.759 Whether these men showed gratia for services received (for example letters of recommendation) or whether they tried to curry favour with a view to future services (or both) is unclear. Legally, a prospective creditor could always refuse a loan to a ‘friend’ or impose strict conditions. But this could be construed as a violation of fides, which would mean the end of the amicitia and the loss of the benefits and gratia derived from it. From a purely pragmatic and tactical point of view, it could be more advantageous to show liberalitas. As a rule of thumb – and reasoning only from a cynical utilitarian viewpoint – the liberality shown would have been in accordance with the future services that could be expected and, of course, weighed against the disadvantages both symbolic and material of a reputation for ingratitude and lack of trustworthiness. d) Ostentation and euergetism.

Liberalitas could be shown for reasons of propaganda or image-building. A reputation for financial liberality increased a creditor’s prestige.760 The remission granted to his debtors by the senator and faenerator Q. Considius offers a typical example of ostentatious liberality. It resulted in a senatorial decree in which public thanks were offered. Considius’s reputation and political prestige were boosted. The event was still remembered 90 years later when Valerius Maximus wrote his Memorabilia and may have played a role in the career of Considius’s grandson, who became praetor under Augustus.761 One of Martial’s epigrams berates a creditor who bragged about the loans he extended to friends; his liberality was insincere and he merely wanted to seem a magnus amicus.762 Euergetic loans to cities belong in the same category. Cornelius Nepos described Atticus’s financial support of Athens as an expression of liberalitas.763 The honorary inscriptions set up for the Cloatii by the city of Gytheion and for the Aufidii by the city of Tenos immortalise the

759

CICERO, Att. XIV, 15, 5. Cf. SALLER (1982), p. 121-122. 761 VALERIUS MAXIMUS IV, 8, 3. On his grandson (or grand-nephew): CIL VI, 31705; PIR2 no. 1280. See NICOLET (1966-1974), p. 848-849; SHATZMAN (1975), p. 328; DENIAUX (1993a), p. 482-484; WISEMAN (1971), p. 225-226. 762 MARTIAL III, 41. 763 NEPOS, Att. 2, 4; cf. MIGEOTTE (1984), p. 34-35. On euergetic loans in general see MIGEOTTE (1984), p. 375-377. 760

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financial beneficence they displayed towards the cities where they (as Romans) resided.764 The practice continued under the Empire when several emperors extended interest-free loans to live up to the liberalitas that was expected from them and that played a central part in imperial propaganda.765 Augustus used money from condemned criminals to extend interest-free loans to those who could offer security to double the amount of the loan.766 Tiberius extended interest-free loans to solve the credit crisis of 33 CE.767 Antoninus Pius regularly extended cheap loans before he became emperor.768 Alexander Severus followed the example and included interestfree loans to Rome’s poorest citizens.769 1.13 The role of reputation. Debt-relations were never impersonal in the Ancient World. The social personality of both financier and debtor was always at stake. Although money-lending was a profitable business in ancient Rome, the only reference-frame generally used by contemporaries was the set of values I have described as the ‘moral matrix of friendship’. Events, actions and assertions were judged by the standards of liberalitas (vs. auaritia), fides (vs. infidelitas) and gratia (vs. ingratia), and these determined the fama (vs. infamia) of the persons involved. a) The creditor’s side: liberalitas and avaritia.

As we have seen before, liberalitas was ‘the disposition from which the act of conferring a beneficium (was) derived’.770 A friendly loan (mutuum) was a beneficium, so giving mutua was naturally a form of liberalitas. Standing surety and sustaining a friend’s solvency were other clear examples of liberalitas. Cicero described the support of a friend’s

764

Cloatii: Syll. 748.Aufidii: IG XII, 5, 860. See supra p. 131. On liberalitas in imperial propaganda see KLOFT (1970), p. 73-84. On interest free loans as a form of imperial euergetism see VEYNE (1976), p. 483-487, 535-536; ANDREAU (1987), p. 238-239, 461-463; NICOLET (1971b), p. 1218; VERBOVEN (1993a), p. 98. 766 SUETONIUS, Aug. 41; DIO LII, 28, 3-4. 767 TACITUS, Ann. VI, 16-17; DIO LVIII, 21, 4-6; SUETONIUS, Tib. 48 (publica munificentia). See infra on the crisis. 768 SHA, Ant. Pius, 2, 8. 769 SHA, Alex. Seu. 21. 770 MANNING (1985), p. 73; cf. supra p. 35-37 on liberalitas. 765

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credit-worthiness (aes alienum suscipere amicorum) as a characteristic act of a homo liberalis.771 Rabirius Postumus772 and Cn. Plancius773 showed their liberalitas by standing surety for friends and fellow tribesmen. Cornelius Nepos considered Atticus’s financial support of Athens an expression of liberalitas.774 Cicero described the financial support that he received from his brother during his exile as a form of liberalitas.775 Caesar upheld his reputation for liberalitas by saving Rabirius Postumus from bankruptcy.776 Catiline claimed that he could count on Orestilla’s liberalitas to satisfy his creditors if necessary.777 Plutarch illustrated Antonius Creticus’s liberalitas ( ) with an anecdote about an interest-free loan (or 778 gift) to a friend. A virtual synonym of liberalitas was benignitas; according to Cicero his friends had financed the campaign to recall him from exile out of benignitas.779 Closely linked with liberalitas / benignitas was bonitas (goodness, kindness).780 Rabirius Postumus’s father, the tax-farmer and businessman C. Curtius, used the wealth he had acquired in business with such benignitas that it seemed that ‘in increasing his fortune he was not looking to procure spoil for his avarice but to obtain an instrument for goodness.’781 Faeneratio – lending money at interest – had a bad reputation in ancient Rome and was usually considered to be motivated by auaritia, liberalitas’s antipole.782 Cato compared faeneratio to murder and illustrated the bad name that – according to the mos maiorum –faeneratores had in ancient times by pointing out that a faenerator was traditionally condemned to fourfold the amount at stake (quadrupli), whereas a thief was only condemned for double the value of the goods he had stolen

771

CICERO, Off. II, 55. CICERO, Rab. Post. 4. 773 CICERO, Planc. 47. 774 NEPOS, Att. 2, 4. 775 CICERO, Att. IV, 3, 6. 776 CICERO, Rab. Post. 41. Cf. SIANI-DAVIES (1997), p. 336. 777 SALLUST, Cat. 35, 5. 778 PLUTARCH, Ant. 1. 779 CICERO, Att. IV, 2, 7. 780 Cf. CICERO, Quinct. 41; Rab.Post. 45; Off. II, 63. 781 CICERO, Rab. Post. 3: cuius in negotiis gerendis magnitudinem animi non tam homines probassent, nisi in eodem benignitas incredibilis fuisset, ut in augenda re non auaritiae praedam, sed instrumentum bonitati quaerere uideretur. On this man see now SIANI-DAVIES (1996), p. 209-214. 782 Cf. FINLEY (1973), p. 54-55; DUNCAN-JONES (1982), p. 21-22; BARLOW (1978), p. 197198; VERBOVEN (1993a), p. 80-83; BÜRGE (1980), 118-119. 772

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(dupli).783 Seneca voiced the same opinion in the form of a rhetorical question: ‘what else are a lucrative loan and a ledger and interest than words belonging to an unnatural way of making money sprung from human greed.’784 Plautus’s Curculio compares faeneratores to pimps.785 C. Manlius’s letter to Marcius Rex – as it appears in Sallust’s Coniuratio Catilinae – complains about the violence and cruelty of money-lenders.786 Horace simply asserted that faeneratores put money above virtue.787 The epithets listed in the Thesaurus Linguae Latinae under the lemmas fenus and fenerator bear eloquent witness of the pervasive denunciation of lending money at interest. Faeneratores display auaritia, crudelitas and impudentia and they were acer, acerbus, auidus, cupidus, seuerus, durus, lucripeta and improbus. Interest was iniquissimum, immensum, illicitum, copiosum, graue, iniustum or at best tolerabile.788 Yet although in his famous classification of professions Cicero mentions faeneratio among those to be avoided, he does not list it under the ‘illiberal and sordid ways of making money’. Money-lending at interest was merely condemned – together with tax-farming – because it arouses ill-will.789 The implication appears to be that faeneratio was not illiberal in itself, but became so by the way in which it was practised.790 It was quite common for debtors to repay late and creditors were expected to be flexible about this.791 Considius admitted to being a faenerator at the time of the Catilinarian crisis, but proved his liberalitas by remitting debts to the amount of 15 million sesterces.792 Two other moneylenders, Q. Titinius and L. Ligus, followed Considius’s example

783

CICERO, Off. II, 89; CATO, Agr. praef. 1. SENECA, Ben. VII, 10: Quid foenus et calendarium et usura nisi humanae cupiditatis extra naturam quaestus uerba? 785 PLAUTUS, Curc. 506-510. Compare also SENECA, Contr. IX, 1, 12 and MARTIAL XI, 66. 786 SALLUST, Cat. 33. 787 HORACE, Epist. I, 1, 52-59. 788 TLL VI (1912-1926), col. 475, 484-485. See also BÜRGE (1980), p. 118-119. 789 CICERO, Off. I, 150: Primum improbantur ii quaestus qui in odia hominum incurrunt, ut portitorum, ut faeneratorum. Illiberales autem et sordidi quaestus mercennariorum omnium … 790 See also BÜRGE (1987), p. 175, n. 175; VERBOVEN (1993a), p. 80-83. 791 CICERO, Att. XVI, 2, 2: fit saepe ut ii qui debent non respondeant ad tempus. A common feature also of the credit system prevalent in the Tenth and Eleventh century Mediterranean and related to a lack of liquid means. See GREIF (1989a), p. 109, n. 41. 792 VALERIUS MAXIMUS IV, 8, 3. 784

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in 49.793 In 45, Cato’s young son owed money to Piso Caesoninus who had (probably) inherited the claim from a certain Herennius. Cicero and Atticus negotiated with Piso to obtain a remission of payments. Piso reacted liberaliter and promised to do nothing against the wishes of young Cato’s guardians.794 When Appuleius demanded repayment from Cicero of a debt of Q. Cornificius for which Cicero stood surety, Cicero did not worry because he knew that Appuleius was a homo liberalis.795 Cicero himself asked Atticus to call on some debtors in 45 but instructed him to be lenient.796 In other words, liberalitas was not only relevant when a debt was contracted, in the sense that a creditor could lend money without interest or at a symbolic rate of interest as a kindness (beneficium) towards the recipient, or in the sense that a homo liberalis could stand surety for his friends or support their credit-worthiness. Liberalitas continued to play a part as a standard by which to judge the creditor’s behaviour until the debt was repaid. Flexibility in contracts was an integral part of the concept of liberalitas. Cicero warned his readers: ‘It will, moreover, befit (a homo liberalis) to be both generous in giving and not harsh in exacting his dues and in all business deals – buying or selling, letting out or renting – … to be fair and easy, yielding much of his rights to many, and to abhor litigation as much as is permissible and perhaps even more than is permissible.’797 Similarly, Cornelius Nepos praised Atticus because he had never in his life taken anyone to court.798 Considius’s example shows how a faenerator could justify his actions by carefully building and manipulating an image of himself as a homo liberalis.799 On the other hand, we can deduce from the fact that faeneratio was readily associated with auaritia that the majority of faeneratores did not respect the norm of liberalitas. Valerius Maximus’s description of Considius’s liberalitas clearly indicates that Considius’s generosity

793

CICERO, Att. VII, 18, 4. CICERO, Att. XIII, 6, 2. 795 CICERO, Att. XII, 17. 796 CICERO, Att. XIII, 23, 3. 797 CICERO, Off. II, 64: Conueniet autem cum in dando munificum esse, tum in exigendo non acerbum in omnique re contrahenda, uendundo emendo, conducendo locando, uicinitatibus et confiniis aequum, facilem, multa multis de suo iure cedentem, a litibus uero, quantum liceat et nescio an paulo plus etiam quam liceat, abhorrentem. 798 NEPOS, Att. 6, 3. 799 Cf. also CICERO, Rab. Post. 3. 794

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was exceptional. Therefore, although liberalitas served as a standard by which to judge the creditor’s behaviour, its effectiveness as a social norm could not be taken for granted. In a way amicitia served to activate the general norm of liberalitas in credit transactions. Although Cicero had been unwilling to give Axius’s son a loan, he felt he could not refuse it after Axius himself had asked him.800 When another of his debtors, a certain Funisulanus, was unable to pay up, Cicero was vexed but because Funisulanus was a friend of Atticus he ‘gave a more than liberal answer’.801 At the same time liberalitas fortified amicitia and patron-client relations, and thus served as an instrument to attach a debtor personally to his creditor. A debtor who experienced liberalitas from his creditor became beneficio obligatus.802 b) The debtor’s side: fides, existimatio and infamia.

A debtor who contracted a debt committed his fides. Although the word had the specific meaning of solvency when it was used in the context of debts, it never lost its fundamental meaning of loyalty and dependability. In other words, the specific ‘contractual’ fides that we find in debt-relations remained indissolubly linked to the more radical and general fides that was expected in personal relations. According to Cicero, nothing kept the commonwealth together more strongly than fides, and fides was impossible unless payment of debts was enforced.803 According to Aulus Gellius, the reason why the Law of the Twelve Tables was so harsh on debtors was that fides was considered the highest virtue in ancient Rome.804 Seneca asserted that the maiores did not allow for extenuating circumstances on the debtor’s part in order to support and promote fides.805 What matters here is not, of course, the veracity of Seneca’s and Gellius’s assertions, but the principal unity of the concept of fides they endorsed and the justification of this unity that they found in the presumed ancestral customs – the mos maiorum.

800

CICERO, Att. X, 15, 4. CICERO, Att. X, 15, 1: cumulate cum omnia tua gratia. The translation is from SHACKLETON BAILEY (1965-1970). 802 See BÜRGE (1980), p. 148. 803 CICERO, Off. II, 84. See FREYBURGER (1986), p. 41-49 (see also p. 16: 11.5% of the attestations of the term relate to debts); BARLOW (1978), p. 163-165, 269; FREDERIKSEN (1966), p. 128-129; VERBOVEN (1993a), p. 95-97. 804 GELLIUS XX, 1, 41. On the harshness of the Roman law on insolvent debtors see FREDERIKSEN (1966). 805 SENECA, Ben. VII, 16, 3. 801

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Fides was itself indissolubly linked with existimatio or fama – reputation.806 In 48, Cicero worried about the debts he had left behind. He counted on Atticus to preserve his reputation (existimatio) as well as his property. Atticus’s could use the money that Cicero had left behind in Ephesus (and which could be transferred to Rome by a permutatio) to save Cicero’s fides.807 In 47, Cicero was relieved that his fides and fama were saved by an unexpected inheritance.808 In 44, his existimatio was again at stake because of the many debts he owed.809 When he was on the point of leaving Italy, Cicero begged Atticus to help him overcome his financial difficulties and he exhorted him to think of nothing but his friend’s reputation (fama).810 When Sex. Naevius prosecuted P. Quinctius for non-payment of a debt, Cicero interpreted this as an attack on Quinctius’s existimatio.811 A debtor who had been condemned for nonpayment not only lost his property, but also his fama and existimatio.812 We find the same connection in Caesar’s description of his own aestimatioarrangement, which allowed debts to be repaid by transfer of property estimated at pre-war prices. The measure was meant to relieve the fides angustior and to preserve the existimatio of the debtors.813 Tacitus used the same terminology to describe the financial crisis of 33 CE. When the emperor Tiberius accorded a delay of 18 months for all moneylenders to comply with the terms of the lex Iulia de modo credendi possidendique intra Italiam – stipulating (probably) that at least two thirds of a man’s patrimony should be invested in land and no more than a third in loans – a shortage of money resulted because creditors all demanded immediate repayment of their outstanding loans. The situation was aggravated by the fact that too much money had accumulated in the imperial (fisco) and state (aerario) treasury, thus reducing the stock of money in circulation (according to Tacitus). The emperor reacted by having the senate vote a senatusconsultum stipulating that creditors had to

806

See FREYBURGER (1986), p. 47-49. See e.g. CAESAR, B.C. III, 1, 3; CICERO, Att. XI, 1, 1-2; 2, 3; XVI, 15, 5; Cat. II, 10, 18; SALLUST, Cat. 25, 11; TACITUS, Ann. VI, 17. 807 CICERO, Att. XI, 1, 1-2. 808 CICERO, Att. XI, 2, 3. 809 CICERO, Att. XVI, 15, 5. 810 CICERO, Att. XVI, 2, 2. 811 CICERO, Quinct. 73. 812 CICERO, Quinct. 50. 813 CAESAR, B.C. III, 1, 3.

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reinvest two thirds of the money of their loans in Italian land, while the debtors had to pay back (only) two thirds of their debts immediately, thus granting them a remission for the remaining third of their debt for probably the same term of 18 months. But the creditors demanded immediate repayment in full and the debtors did not dare to appeal to the emperor’s concession because it would be dishonourable not to live up to their fides (nec decorum appellatis minuere fidem). The price of land collapsed because too much was thrown on the market by desperate debtors, aggravating the crises even more and leading to the general collapse of private fortunes destroying the dignitas and fama of the insolvent debtors. The emperor had to intervene and distributed 100 million sesterces of interest free loans for a term of three years to anyone who could offer security for double the value in land.814 A creditor could use the close link between fides and reputation as a way to exert pressure by publicly denouncing a debtor who did not pay up. He could do so by loudly and publicly demanding repayment (flagitare). The flagitatio was essentially a form of popular justice that consisted in publicly and loudly denouncing a wrongdoer. Usually, however, we find the practice attested as a response to the nonpayment of debts. The ‘root idea’ of the flagitatio is that of ‘bringing infamy’.815 To receive a flagitatio was extremely embarrassing and injuring to one’s reputation. Atticus – who was Cicero’s procurator at the time – had to undergo the humiliation in Cicero’s place when Tullia’s creditors turned to him to demand repayment.816 The close link between credit and social credibility is not unique to the Roman world. Mauss noted the association in his Essai sur le don and concluded that the entire notion of ‘credit’ had originated from the necessary time-lag between gift and counter-gift, during which the giver put

814

TACITUS, Ann. VI, 16-17. See also SUETONIUS, Tib. 48; DIO LVIII, 21, 4-6; WOLTERS (1987); BELLEN (1976); ANDREAU (1986), p. 238-239, 461-463; THORNTON & THORNTON (1990); RODEWALD (1976), p. 1-17. The remission of a third of the debt is disputed, but can be inferred from Suetonius’s parafrase of the senatorial decree: ut faeneratores duas patrimonii partes in solo collocarent, debitores totidem aeris alieni statim soluerent, and Tacitus’s words: sed creditores in solidum appellabant, nec decorum appellatis minuere fidem. (Ann. VI, 17). 815 LINTOTT (1968), p. 9. See also NADJO (1989), p. 303-304; KELLY (1966), p. 22-23. See also WEISS (1949) on the columnia Maenia where creditors published the names of debtors who could not repay their debts. 816 CICERO, Att. XI, 7, 6. Tullia was still in potestate of her father, so her creditors would naturally turn to him or to his procurator (in this case Atticus) for repayment.

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his trust in the recipient’s readiness to reciprocate. This meant that the notion of ‘credit’ was an offshoot from the norm of reciprocity, which – as we have already seen – was itself bound up with honour and social prestige.817 Millett describes how in ancient Greece the notion of credit gradually eased away from the purely informal moral obligations connected with reciprocal exchange and crystallised into a concept expressing the legally enforceable obligations of formal contracts. Characteristically, however, the link with honour and prestige was never severed.818 Until the middle of the seventeenth century the French word ‘crédit’ denoted ‘honour’ rather than ‘credit’. Credit and honour were closely connected in seventeenth century Dauphiné.819 In eighteenth century France ‘credit assumed such importance that … an eighteenth century person’s very reputation was bound up with his ability to obtain loans – something implied by the very word “crédit”.’820 The entire credit system of eighteenth century Buenos Aires as well rested on ‘le code de l’honneur et les impératifs du prestige personnel d’agents qui interviennent à l’intérieur d’un réseau.’821 c) Gratia.

Gratia was the disposition of gratitude and readiness to reciprocate that was expected from a person who had received a gift or a favour (beneficium). In the context of loans and debts, it was the response expected from a debtor to the liberalitas shown by his creditor. This implies that gratia was not only expected in the case of an interest-free loan (a mutuum), but also every time a creditor was flexible towards his debtor. In other words, the gap between an interest-bearing loan (faenus, uersura) and a beneficium was not unbridgeable.822 Naturally, sureties as well were entitled to gratia. Cn. Plancius was gratiosus in his tribe because he had stood surety for many of its members.823

817

MAUSS (1923-1924), p. 91-96. See also MICHEL (1962), p, 480-482. MILLETT (1991), p. 36-44. Interest is thought to have been derived from the principle that the value of a return gift in reciprocal exchange preferably exceeds the value of the original gift (MAUSS (1923-1924), p. 107-108; MILLETT (1991), p. 44-52). 819 FONTAINE (1994), p. 1390. See also BÉAUR (1994); KETTERING (1986), p. 41-44. 820 HOFFMAN & POSTEL-VINAY & ROSENTHAL (1992), p. 294. 821 MOUTOUKIAS (1992), p. 902. 822 On the opposition between faenus and beneficium see CICERO, Fin. II, 115. 823 CICERO, Planc. 47. 818

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Gratia bound the debtor to his creditor in a much more radical way than a simple legal obligation would. Default in a situation where gratia was owed not only destroyed the debtor’s social credibility (fides); it branded him as an ingratus as well, dealing an even more deadly blow to his reputation and social status (existimatio). On the other hand, however, gratia could be used to exert pressure on either creditor or debtor. Cicero was generous towards Funisulanus because Atticus intervened on behalf of the latter.824 Brutus asked Cicero to exert pressure on the people of Dyrrhachium – a city in Cicero’s clientela – so that they would repay their debt to C. Flavius, who was an intimate friend of Brutus.825 We will discuss the use of gratia-influence more fully later in this book. 1.14 The significance of amicitia to the Roman financial system. According to Michel, we should beware of overestimating the practical importance of interest-free or cheap loans. Outside the sphere of politics, such loans would have become exceptional by Cicero’s time.826 Given the frequency of interestfree loans in, for instance, Pliny and Martial this seems an overstatement. Saller does not believe that there was any significant break between the Late Republic and the Early Empire as far as loans between amici are concerned.827 Nevertheless, the quantitative importance of mutua in the whole of the financial system should not be overestimated. When we look at the reasons why amici extended interest-free or cheap loans, we see that political reasons, emergencies and status affirmation or enhancement predominate. As far as we can see, ‘ordinary loans’ for personal consumption, purchases, private building projects or business activities, were usually interest-bearing. It would be a mistake, however, to locate the importance of amicitia to the financial system exclusively in the possibility of obtaining interest-free or cheap loans. This would presuppose an autonomous parallel circuit of credit between ‘friends’, unconnected with the larger circuit of commercial credit. In fact, we have seen that amicitia was omni-present even in the case of commercial money-lending. Interest-bearing loans

824

CICERO, Att. X, 15, 1. CICERO, Ad Brut. XIV, 4. See also PLINY, Epist. VI, 8; SHERWIN-WHITE (1966), p. 363364; SALLER (1982), p. 122. 826 MICHEL (1962), p. 539. See also MASELLI (1986), p. 179-181 827 SALLER (1982), p. 120-122. See also PARKINS (1997), p. 86-87. 825

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were preferably asked from and extended to amici. Friends were expected to stand surety for each other. A debtor’s credit and solvency largely depended on the friends upon whom he could count to intervene in case of insolvency. Gratia could be used to exert pressure on creditor or debtor. Via specialised amici large fortunes could be lent out at interest. Amicitia provided a source for free loans, but this was by no means the only part it played in the financial system. It created situations of mutual trust behind all kinds of loans. A person’s fides reflected the entire network of relations upon which he could fall back either to repay a debt or to exert pressure.828 A direct fides-relation (in our case an amicitia) between creditor and debtor provided the creditor with an extra guarantee that his loan would be paid back. Failure on the debtor’s part to live up to his obligation would be construed as a breach of fides that would jeopardise the relationship in question and the benefits derived thereof. On the other hand, the debtor could rely on the fides-relation to expect liberalitas from his creditor. A fidesrelationship thereby constituted an extra insurance for both creditor and debtor without necessarily implying that the loans extended were free or carried merely a symbolic interest charge. Amicitia protected a debtor from usury, not from moderate interest rates. The fact that friends were expected to stand surety and support each other’s credit and the fact that even interest-bearing loans were preferably asked from and extended to friends illustrate the importance of amicitia in the availability of credit.829 But even when no direct fides relation existed between creditor and debtor, amicitia had a part to play. ‘Friends’ were expected to protect each other’s credit, both by standing surety and by intervening when insolvency threatened. By doing so amicitia not only upheld individuals’ credit rating, but actually supported the financial system at large by providing it with a platform of trust upon which to operate. Finally, amicitia stimulated the flow of financial surpluses from the landed aristocracy to the world of business because the members of the business-elite were themselves linked with the aristocracy through

828

For the conceptualisation of personal networks in terms of capital and credit see also BOISSEVAIN (1969), p. 383-386. See also MOUTOUKIAS (1992), p. 897: ‘le crédit dépendait de “l’influence” de la personne, la continuité des opérations était assurée grâce aux fidélités engendrées à l’intérieur du réseau de liens personnels par les marchands-fonctionnaires mentionnés.’ (cf. ibid, p. 901). 829 See BÜRGE (1980), p. 145. Also e.g. BENOEHR (1986b), p. 43; VERBOVEN (1993a), p. 8487.

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relations of amicitia. The scope of ‘investments’ in loans for the aristocracy was considerably enlarged and the general mobility of cash was greatly enhanced thanks to the services provided by specialised middlemen. This brings us back to the problems of trust and anonymity with which we started this chapter. We distinguished three ways by in which a financial system could overcome these problems. The first consisted of the depersonalisation of debtrelations and the creation of specific institutions to guarantee repayment. The second relied on reciprocity relations between creditor and debtor. Non-repayment meant the end of the reciprocity relation and the loss of social prestige and credibility. The third rested on the existence of professions and organisations that depended on credit, in which case a debtor was dissuaded from defrauding his creditor because it would mean losing his job or going out of business. Although there was a lively credit market in Late Republican Rome making use of a developed system of contracts (relying on the first trust establishing mechanism) and although there was a considerable degree of professionalisation among faeneratores (relying on the third trust establishing mechanism when they acted as financial middlemen), our survey has shown that this credit market left ample room for amicitia. In an almost paradoxical way, the impersonal credit market depended on the integration of debt-relations in personal networks of friends and relatives, which established the necessary conditions of functional trust behind contracts.830 Moreover, reputation was an important factor in the working of the Roman financial system and it too depended largely on the respect for the moral matrix of amicitia. The slow and difficult circulation of information further complicated the problems of trust and anonymity. Information moved at best with the speed of a horse by land and a ship by sea. This information deficit offered opportunities to unscrupulous merchants. Cicero relates the story of the Alexandrian merchant who arrived with a cargo of grain in Rhodus while the city was suffering from a famine. The merchant concealed the fact that a large convoy of Alexandrian vessels filled with grain was following at a few days distance and sold his cargo at an exorbitant price.831 The system of maritime loans (pecunia traiecticia, later known as faenus nauticum) was very vulnerable to fraud. A merchant could sell

830

See also EISENSTADT & RONIGER (1984), p. 1-42. CICERO, Off. III, 50-53; cf. DYCK (199), p. 556-562. See also GIARDINA (1992), p. 268-269; VAN HOUDT (1997), p. 6-7; TOZZI (1961), p. 314. 831

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his cargo, but profess to his creditor that he had been forced to throw it overboard in a storm to save his ship, in which case he did not have to repay his debt.832 Avner Greif showed that the Jewish Maghribi traders in medieval Cairo used personal networks built on mutual trust to deal with the information problem. Access to these networks was imperative to stay in business. A trader who defrauded was effectively shut out.833 The Roman business elite seems to have had few alternatives. The example of the permutationes shows that at least one crucial financial instrument, without which no supra-local organisation could conceivably function efficiently, depended on the availability of personal networks of amici. We should stress that the complex system we see emerging from the debris of our sources only slightly resembles what anthropologists have termed ‘the moral economy’. The Roman credit market – fragmented and fragile as it may have been – was nevertheless a self-regulating ‘market’. Although loans were preferably asked from friends and relatives, they were not always obtained,834 while loans could be extended to anonymous strangers through specialised intermediaries. We have bare touched upon the role of the third trust establishing mechanism, ‘professionalisation’, but clearly financial brokers and middlemen largely depended on the reputation for reliability to operate. However, amicitia often lurked in the background, upholding a debtor’s credit and serving as a strategic resource to exert pressure if necessary. This peculiar system can be ascertained only for the highest levels of Roman society. Nevertheless, patronage and brokerage at least had the potential of penetrating into the lower regions of the economy. Cicero’s remark about the argentarii who were ‘influential with all social classes’ is pertinent here.835 Various persons from the Roman business elite figure prominently in the financial system I have described. Cluvius, Vestorius, Rabirius Postumus, Egnatius Rufus and others served as intermediaries for the aristocracy, whose money they invested in

832

Cf. ROUGÉ (1966), p. 345-360, 397-413. Compare the case of the publicani who played the same trick on the Roman state during the second Punic war: Livy XXIII, 48-49; 25, 2-5; VALERIUS MAXIMUS V, 6, 8; BADIAN (1972), p. 16-20. 833 GREIF (1989b); GREIF (1991). 834 Cf. Q. Caecilius who refused to lend at less that 12% even to his closest relatives: CICERO, Att. I, 12, 1. 835 CICERO, Off. III, 58: Pythius qui esset ut argentarius apud omnes ordines gratiosus. The sequence of this passage show that ordines is here to be understood as loosely referring to any social class. See also ANDREAU (1985).

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usurious loans to cities and kings. We do not know for sure whether they also lent money to traders and other businessmen, but the example of the Sulpicii from Puteoli, who served as financial intermediaries between imperial slaves and Puteolean merchants, points in this direction.836 Whether or not the enormous cash reserves of the aristocracy could be made available to independent businessmen depended on these middlemen.

836 On the Sulpicii see now CAMODECA (1999) ANDREAU (1995b); VERBOVEN (2000b) (and cf. supra p. 164).

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INHERITANCES, LEGACIES AND GUARDIANSHIPS.

1.15 History and frequency of the officia testamentaria. Although Maine’s famous thesis that ‘Romans had a singular horror of intestacy’ and ‘a passion for testacy’ has been seriously challenged, scholars today again commonly accept that by the Late Republic all but the poorest Roman citizens were expected to make a will. To die without a will was deemed improper and dishonourable.837 The lex Voconia, prohibiting women from being appointed heir in a will to a member of the prima classis but not interfering with women’s right to inherit ab intestato, would be absurd if it was not customary for members of the prima classis to make wills.838 The subsequent development of the legally unenforceable fideicommissum as a substitute will to bequeath property to those who were legally excluded from the right to inherit (for example women when the testator belonged to the prima classis) shows that social pressure to write a testament was strong enough for people to prefer even an unenforceable will to no will.839 A passage in Gaius indicates that even common soldiers, who were recruited from among the poorest and least educated citizens, regularly made wills.840 A will in Rome represented more than a practical way to bequeath property. It provided a final occasion to honour friends, patrons and family and to repay them for all the kindness one had received from them. By leaving legacies to his hometown, a testator could for one last time prove his liberalitas. In his will he could appoint guardians to his children and commend them to his most powerful friends. If he was childless, he could adopt a son to assure that his name would live on after him. Conversely,

837 CROOK (1973); CHAMPLIN (1989a); CHAMPLIN (1991), p. 20-21; HOPKINS (1983), p. 235-236; CORBIER (1985), p. 509-510. Those who had nothing to leave behind could be motivated to make a will to provide guardians for their children (SALLER (1994), p. 192). Contra see DAUBE (1936); DAUBE (1964-1965); WATSON (1971), p. 175-176. 838 CROOK (1986), p. 65-66; WATSON (1971), p. 29-30, 35-39, 167-170. 839 CROOK (1973), p. 43-44; WATSON (1971), p. 35-39; SALLER (1994), p. 166-166. 840 GAIUS II, 109.

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the testator could – with impunity – show what he really thought of all his ‘friends’ and relatives. To ignore close friends and relatives or to leave them less than was commonly expected constituted an insult and either damaged their reputation or that of the testator. The last will of a person was deemed a mirror of his character.841 When an important person died people eagerly awaited the reading of the deceased’s will and its contents rapidly became the subject of gossip and small talk. At a remarkably early stage of Roman history, the Twelve Tables granted Roman citizens the right to bequeath property to whomsoever they liked (which does not necessarily mean that it was a common practice).842 In 254 BCE the pontifex maximus Ti. Coruncanius ruled that the heir who took the largest share or anyone who received more by way of legacy than the heir, regardless of his relationship with the deceased, was responsible for the onerous sacra priuata. It is the oldest indication we have that substantial legacies to outsiders had become sufficiently common to be considered problematic.843 A further indication that the habit of leaving substantial legacies to non-relatives or distant kin had become common by the end of the third century BCE can be found in the lex Furia testamentaria, dating from the final years of the third century or the early second century BCE.844 This law prohibited anyone from accepting a legacy worth more than 1000 (sextantal) asses unless he or she was a blood relative within the sixth degree or the child of a cousin on the mother’s side. The law was minus quam perfecta, which means that illegal legacies were not invalidated but anyone accepting such a legacy was fined (in this case four times the excess amount of the legacy). The law never seems to have had much effect but this need not concern us here. The limit of 1000 asses allowed by the law seems almost ludicrously low, indicating that the law was intended to allow only symbolic legacies to non-relatives and distant kin.845

841

PLINY, Epist. VIII, 18. CRAWFORD (1996), p. 635-651; WATSON (1975), p. 53-70; FLACH (1994), p. 134-144. 843 cf. CICERO, Leg. 2, 52; WATSON (1971), p. 4-5; 163-164; HOPKINS (1983), p. 235-236. 844 GAIUS II, 224-225; IV, 23-24; Tit. Vlp. 2. WATSON (1971), p. 165; WALLACE-HADRILL (1981), p. 70. 845 Note that the minimum census required for the fifth classis in the early second century according to Polybius (VI, 19, 3) was 4000 sextantal asses. Persons declaring less than 1500 asses were proletarii according to GELLIUS XVI, 10, 10. 842

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Clearly, by the time of Cicero, the practice of leaving shares and legacies to friends, patrons, clients and distant relatives had a long history and was firmly rooted in the exchange of services expected from amici. 1.16 The claims of family. a) Parents and children.

The social norm determining who was to receive a share in a will, followed largely the legal rules concerning inheritance ab intestato. The closest family members normally received the largest share of the inheritance. Accordingly, the majority of all known inheritances concern property bequeathed to children and spouses or – when neither of both categories was available – siblings, nephews and nieces. 846 A pater familias’s direct descendants and his wife in manu – who was counted as a daughter –were legally that man’s sui heredes. In case of intestacy, they immediately and automatically inherited everything that had belonged to the deceased. Although a father had the legal right to disinherit his sui heredes, social pressure against him doing so was strong. The censors of 71-70 expelled the senator Cn. Egnatius from the senate because he had publicly disinherited his son whom he suspected of accepting bribes.847 Q. Hortensius Hortalus contemplated disinheriting his son because of his provocative and scandalous life-style. Although the intention seems to have been generally approved, Hortensius did not carry out his threat and his son inherited most of his father’s property.848 The law required that disinheritance of a suus heres had to be made explicit in the will. A will that simply ignored a suus heres was valid, but the suus heres in question nevertheless received a share contrary to the terms of the will (contra tabulas). The birth of a son automatically annulled an existing will unless he was already mentioned in it.849 Adoption or emancipation did not sever the social ties between parents and their natural children. Although according to ius ciuile an emancipated son or daughter ceased to be a suus heres, according to praetorian law

846

Cf. SALLER (1994), p. 161-180; CORBIER (1990), p. 511-514; MOREAU (1986); WALLACE-HADRILL (1981); CHAMPLIN (1991), p. 103-130. 847 CICERO, Clu. 135. 848 VALERIUS MAXIMUS V, 9, 2; CICERO, Att. VII, 2, 7; 3, 9; PLINY, N.H. XIV, 96; PLUTARCH, Cat. Min. 52. 849 GAIUS II, 123-135; WATSON (1971), p. 41-45.

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they were still legitimate heirs (heres legitimi). Accordingly, when a testator intended to disinherit them the praetor demanded that they too had to be explicitly disinherited for a will to be effective.850 However, even if a deceased had disinherited a suus heres or a heres legitimus according to all legal rules, the suus heres could contest the validity of the will before the court of the centumuiri in a querela inofficiosi testamenti on the grounds that it was undutiful (inofficiosum). Recourse to the querela inofficiosi testamenti was not only available in the case of a father disinheriting one or more of his children. The criterion used was piety (pietas), which applied both to parents vis-à-vis their children and to children vis-à-vis their parents, even when an adoption or an emancipation had severed all legal ties. Thus, the will of a mother that ignored her son or daughter could be contested before the centumuiri, as could the will of a child ignoring either of his natural parents. In some cases, even the will of a sibling could be could be subject to a querela. 851 A certain Liburnia was not mentioned in the will of her son while a friend of the deceased, a certain P. Novanius Gallio, was appointed heir. The case led to a querela inofficiosi testamenti in which the jurist and orator C. Asinius Pollio pleaded on behalf of Liburnia. Pollio sarcastically paraphrased the will: ‘My mother who was most dear and sweet to me … will be disinherited (exheres esto)… P. Novanius Gallio, to whom I deservedly wish all good as I should on account of his most sincere goodwill for me … shall be my heir’ (heres esto).852 Pollio’s paraphrase is interesting not only because legally Liburnia did not have to be explicitly disinherited – since she was not a suus heres – but mainly because according to the lex Voconia she could not be an heir to her son in any case! The application of the legal formula exheres esto by Pollio in the case of Liburnia indicates the strong moral right of a mother to inherit from her son. Legally Liburnia could not be her son’s heir; morally she was entitled to her share of the inheritance. The same strong moral obligation for a son to mention his mother in his will is found in Cicero’s oration for A. Cluentius the Younger.

850

Cf. GAIUS II, 135. WATSON (1971), p. 62-70. Note that a son or daughter in potestate could not make a valid will, but an emancipated child could and such a will would be liable to a querela inofficiosi testamenti. 852 QUINTILIAN, Inst. IX, 2, 34-35; ‘mater mea, quae mihi cum carissima tum dculcissima fuit, quaeque mihi uixit bisque eodem die uitam dedit’ et reliqua, deinde ‘exheres esto’ … ‘P. Nouanius Gallio, cui ego omnia meritissimo uolo et debeo pro eius animi in me summa uoluntate. On the case see CROOK (1986), p. 75. 851

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Cluentius filius long postponed making a will because on the one hand he hated and feared his mother Sassia, while on the other hand he could not bring himself to ignore her in his will. Of course, Cluentius’s true intentions and feelings may have been different, but the justification put forward by Cicero is eloquent proof of popular opinion about how a good son should behave.853 The will of a certain Aebutia spurned one of her daughters in favour of the other Although the daughter decided to respect her mother’s last will, Valerius Maximus assures us that the will could have been rescinded on the grounds that it was inofficiosum.854 Augustus declared the will of a certain Tettius who disinherited his son void.855 In the case of a certain Septicia, who had remarried late in her life and ignored her two sons from a former marriage in her will in favour of her new husband, Augustus not only rescinded the will but also took the dowry away from Septicia’s husband.856 Aemilius Paullus left his natural son Q. Fabius Maximus Aemilianus sixty talents.857 Annius Milo inherited from both his adoptive and his natural father.858 The Roman knight M. Anneius Carseolanus was adopted by his uncle and disinherited by his natural father. Carseolanus successfully contested the will despite the fact that a protégé of Pompey had been appointed heir in his place. A certain Terentius had eight sons, one of whom was adopted by someone whose name we do not know. When the adopted son died, it appeared that he had left nothing to his natural father. The praetor C. Calpurnius Piso (cos. 67) gave Terentius possession of the inheritance contrary to the will (contra tabulas) and refused to allow the heirs mentioned in the will to bring a civil law suit against Terentius.859 b) Other near relatives

Parents and children were far from being the only family members who had a moral right to a share of the inheritance. Cornelius Balbus, for

853

CICERO, Clu. 45. On Cluentius’s case see CROOK (1986), p. 72; MOREAU (1986), p. 178-

179. 854

VALERIUS MAXIMUS VII, 8, 2. VALERIUS MAXIMUS VII, 7, 3. 856 VALERIUS MAXIMUS VII, 7, 4. 857 POLYBIUS XXXI, 28, 3. See SHATZMAN (1975), p. 251. 858 CICERO, Mil. 95; ASCONIUS, Mil. 47 (ed. Clark). 859 VALERIUS MAXIMUS VII, 7, 5. 855

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example, had himself adopted by Pompeius Theophanes from Mitylene in order to be able to inherit from his new relatives (propinqui).860 Next to parents and children came siblings, cousins and children of siblings. C. Quinctius appointed his frater (brother or cousin) P. Quinctius as heir.861 L. Saufeius was heir to his frater App. Saufeius.862 Cato the Younger was heir to his cousin.863 Atticus was adopted and appointed first heir in the will of his maternal uncle Q. Caecilius. Although Caecilius’s will was strongly criticised because he had ignored Lucullus Ponticus whose protégé he had long been, Cicero praised Caecilius’s choice of Atticus as duteous.864 When Pompeius Reginus’s brother died, it appeared that the deceased had left nothing to Reginus. His entire fortune was bequeathed to non-relatives of a low social background. Reginus reacted by reading his own will aloud in public, in which his brother received a praelegatum of 15 million sesterces over and above a substantial share of the inheritance. Valerius Maximus – and we may assume the Roman public at the time – was scandalised but Reginus refused to contest the will. Valerius Maximus’s narration of the events clearly indicates that Reginus could have brought a querela inofficiosi testamenti against the will of his brother, but refused to ‘disturb the ashes of his brother by a lawsuit’.865 Metellus Nepos had a very large family and was related by marriage to the even larger family of the Claudii. In order not to disappoint anyone, he appointed the outsider C. Carrinas C. f. (praetor in 46, consul in 43) as sole heir. Although Nepos’s relatives respected the will, Valerius Maximus condemns Nepos’s decision and by listing the will among those ‘who could have been rescinded but were not’ shows that at least some of Nepos’s relatives could have successfully contested the will.866 Clearly, a person’s next of kin had a strong moral claim on the inheritance. The exclusion of near relatives in favour of outsiders (extranei) was generally disapproved of and could be a reason to suspect fraud.

860

CICERO, Balb. 57. CICERO, Quinct. 14. On frater meaning both ‘brother’ and ‘son of a paternal uncle’, see SHACKLETON BAILEY (1977b). 862 CICERO, Att. VI, 1, 10. 863 PLUTARCH, Cat. Min. 6, 4. 864 CICERO, Att. III, 20, 1: … gaudio auunculum tuum functum esse officio …; VALERIUS MAXIMUS VII, 8, 5; NEPOS, Att. 5, 1-2. 865 VALERIUS MAXIMUS VII, 8, 4. See WATSON (1971), p. 67-68 on the case of Reginus. 866 VALERIUS MAXIMUS VII, 8, 3. 861

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Cluentius was accused of falsifying the last will of P. Aelius in which a near relative of the deceased was passed over in favour of Cluentius.867 Marc Antony inherited from a certain L. Turselius while the deceased’s brother was passed over in the will. The will of L. Rubrius from Casinum instituted Antony as heir while ignoring the son of the testator’s brother. Cicero accused Antony in both cases of forging the will.868 However, the circle of relatives who were expected to benefit from a will seems to have been rather limited. We may note that, according to Cornelius Nepos, Atticus received his inheritance from Caecilius not because he was the son of Caecilius’s sister, but because he had been the only one who could endure Caecilius’s difficult character and knew how to treat the old man in such a way as not lose his affection. The same Caecilius was censured for not having appointed Lucullus Ponticus as heir, which shows that the claims of amicitia could – at least in some cases – compete with the claims of propinquitas.869 1.17 The claims of friends and affines. Friends and in-laws (adfines) came next in the system of the officia testamentaria. In-laws, friends, patrons and clients870 had no legal claims to each other’s estates, but morally they could – in some cases – claim a share of the inheritance. To leave a share to close in-laws, amici and protectors was a question of honour.871 It was the last officium that could be expected from an honourable man. Thus concerning the inheritance Paconius Lepta had received from a certain Macula, Cicero wrote to Lepta saying that he was ‘glad that Macula had done his duty’.872 Valerius Maximus discussed a number of unworthy wills in which deserving amici, to whom in some cases the deceased had promised that they would be sole heirs, were passed over.873 The case of Atticus’s maternal uncle Q. Caecilius, whom we have already mentioned, is no

867

CICERO, Clu. 162. See MOREAU (1986), p. 173. CICERO, Phil. II, 40; 62; 73. 869 Cf. also CHAMPLIN (1991), p. 144. 870 Contrary to patrons vis à vis their freedmen. 871 SALLER (1994), p. 124-125; HOPKINS (1983), p. 235-247; MICHEL (1962), p. 561-564; CHAMPLIN (1991), p. 131-154; WHITE (1978), p. 90; CORBIER (1985), p. 514-518; WALLACEHADRILL (1981), p. 66-70. On adfinitas see MOREAU (1990). 872 CICERO, Fam. VI, 19, 1: Maculam officio functum esse gaudeo. 873 Cf. VALERIUS MAXIMUS VII, 8, 5-9: Quae aduersus hominum heredes habuerunt. 868

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doubt the most famous. Caecilius had made a fortune in business thanks to the support and generosity of Lucullus Ponticus. Caecilius had always claimed that Lucullus would be his sole heir. On his deathbed he had handed over his ring to Lucullus, thereby confirming again his intention to appoint Lucullus first heir. At the opening of the will, however, it was found that he had appointed his sister’s son Atticus as first heir for three-quarters of the inheritance. According to Valerius Maximus, Caecilius’s will caused so much indignation that the people attacked the funeral procession and dragged the corpse through the streets. Caecilius had been a notorious usurer and Valerius Maximus’s thesis about why the people attacked Caecilius’s corpse is likely to be false. Nevertheless, the fact that Valerius Maximus was able to propose this explanation as credible testifies to the strength of Caecilius’s moral obligation to leave a substantial share to his benefactor.874 The case of T. Barrus and Lentulus Spinther is comparable. Their ‘friendship’ is described by Valerius Maximus as a liberalissima amicitia and Spinther is said always to have shown an amantissimus animus toward Barrus. Like Caecilius, Barrus handed over his rings to Spinther, indicating that Spinther would be his sole heir, but when Barrus’s will was opened, it appeared that Spinther was to receive nothing.875 The same thing happened to Augustus. T. Marius Urbinas had been a soldier who owed his career and fortune to Augustus. Urbinas had always claimed that he would leave everything to the emperor, but when he died and the will was opened Augustus was not mentioned in it.876 According to Suetonius, it was not the only time that Augustus was disappointed in a ‘friend’. Although as a rule he never accepted anything that strangers had supposedly left him (a practice not observed by less scrupulous emperors), he was always very eager to know what his amici had left him. When the deceased had shown gratia and pietas Augustus was delighted, but when he received less than expected or when the wording of the will was insulting he was openly distressed.877 To be remembered in a will was honourable and served as a standard for one’s social position. It proved the beneficiary’s fidelitas and

874 VALERIUS MAXIMUS VII, 8, 5. Compare also CICERO, Att. III, 20, 1; NEPOS, Att. 5, 1-2, and cf. supra p. 127. 875 VALERIUS MAXIMUS VII, 8, 8 876 VALERIUS MAXIMUS VII, 8, 6. 877 SUETONIUS, Aug. 66, 4.

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bonitas.878 Cicero proudly claimed that even when he was in exile his amici continued to mention him in their wills.879 In 43 he claimed to have received in the course of his life 20 million sesterces in legacies and shares.880 On the other hand, not to be mentioned in the will of a friend was humiliating. That is why Marc Antony maintained that Cicero never received anything by will.881 Cicero once abusively hurled at Clodius in the senate that he was not mentioned in the will of his brother in law Marcius Rex. Clodius’s omission in the will was even more humiliating because Clodia’s other brother, App. Claudius, was appointed heir.882 After his return from exile, Cicero publicly denounced a supporter of Clodius, a certain Aelius Ligus, for having been omitted in the will of his own brother M. Papirius.883 Cicero’s reproach appears to have been a stock insult since a handbook in oratory, the Rhetorica ad Herennium, explicitly mentions a similar abuse in a model subiectio.884 In 45, Cicero was outraged to find that a certain Calva had left him nothing.885 In 54, both Cicero and his brother complained that a certain Felix had left them nothing, although they had been led to expect a share of one-twelfth.886 Conversely, to refuse a share of an inheritance left by a friend was insulting, most likely because it virtually denounced the deceased as bankrupt or unworthy to be associated with. The feeling is illustrative of the great symbolic importance attached to wills. Leaving a legacy or a

878

Cf. CICERO, Q.fr. I, 3, 6: genere ipso pecuniae beatissimus. PLINY, Epist. V, 5, 1; VII, 31, 5 (fidelitas); Dig. XXXIII, 1, 10, pr. (bonitas); NEPOS, Att. 21, 1. 879 CICERO, Dom. 85. See CICERO, Q. fr. III, 1, 6: genere ipso pecuniae beatissimus 880 CICERO, Phil. II 2, 40. 881 CICERO, Phil. II, 40. See also PS.-CICERO, In Sall. 9. 882 CICERO, Att. I, 16, 10; DIO XXXIV, 7, 2. 883 CICERO, Dom. 49 884 Rhet. Her. IV, 33. A subiectio was a rhetorical figure of speech in which questions were posed to an opponent, which were immediately answered by the person delivering the speech. 885 CICERO, Att. XV, 3, 1 886 CICERO, Q. fr. III, 9, 8; Att. IV, 19, 2. The latter passage is corrupt, it reads selicianae unciae. Tyrell proposed to Felicianae unciae (TYRELL & PURSER (1904-1933) ad h. l.) Shackleton Bailey accepts the reading of the manuscript as referring to the interest rate of one uncia charged by the faenerator Selicius (SHACKLETON BAILEY (1965-1970) III, p. 225-226). I follow Tyrell’s reading because the use of the term uncia applied to interest rates is extremely rare and apart from one isolated passage in the Digest is attested only for interest laws (cf. FESTUS, p. 516 (ed. Lindsay); LIVY VII, 16, 1; TACITUS, Ann. VI, 6, 16). In Dig. XXVI, 7, 47, 4 (Scaevola) the indication uncias usuras probably means one twelfth of the centesima usura, i.e. 1% per year (KEHOE (1997), p. 36-37; BÜRGE (1987), p. 541).

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share in the inheritance to a friend expressed for a last time the close association between the testator and his friend. Valerius Maximus relates the story of Oppius Gallus, who refused to accept the rings that the dying senator M. Popilius offered him as token that he had appointed him as principal heir. The two men had been intimate friends since their childhood and in Valerius Maximus’s eyes Gallus’s refusal to accept Popilius’s inheritance constituted a grave insult to the dying man.887 Although the moral right of amici to inherit from each other came after that of close relatives, they were not necessarily excluded from the inheritance when near family-members were available. They could receive smaller shares or legacies. Sulla left most of his property to his son but all his friends received legacies – except Pompey, whose growing power and influence he feared would destroy the constitution he had devised. Sulla’s omission of Pompey was well understood as a motion of no-confidence.888 Cluentius Habitus was first heir to P. Aelius and was charged with paying a legacy of 300,000 sesterces to a certain Florus.889 The businessman Cluvius from Puteoli left a huge inheritance to Cicero, Caesar and another businessman from Puteoli Hordeonius. Terentia received a legacy of 50,000 sesterces from Hordeonius.890 Another familiaris of Cicero, Cossinius, left a legacy to him in 45.891 Dinaea’s will appointed her grandson C. Oppianicus as heir but contained numerous legacies that were erased by young Oppianicus’s father.892 Hortensius Hortalus appointed his son and his wife Marcia as heirs in the first degree, but charged his heir with numerous legacies to his amici.893 Augustus’s will contained numerous legacies – some of ‘only’ 20,000 sesterces – to relatives and friends.894 When Iunia, the widow of Cassius Longinus and half-sister to Brutus, died in 22 CE, she left legacies to every person of some position in the city except the emperor.895

887

VALERIUS MAXIMUS VII, 8, 9. PLUTARCH, Sul. 38, 1; Pomp. 15, 3. 889 CICERO, Clu. 162. See MOREAU (1986), p. 173. 890 CICERO, Att. XIII, 45, 2-3; 46, 3-4; 37a; XIV, 9, 1; 10, 3; 11, 2; XVI, 2, 1; 6, 3. 891 CICERO, Att. XIII, 46, 4. 892 CICERO, Clu. 21-23. On the family relations of the Statii Oppianici see MOREAU (1983). 893 CICERO, Att. VII, 2, 7; 3, 9; VALERIUS MAXIMUS V, 9, 2; PLINY, N.H. XIV, 96; PLUTARCH, Cat. Min. 52. 894 SUETONIUS, Aug. 101, 3. Claudius received 800, 000 sesterces (SUETONIUS, Cl. 4, 7). See also TACITUS, Ann. I, 8. 895 TACITUS, Ann. III, 76, 1. See ROGERS (1951). 888

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Legacies could be a burden for the heirs. Unlike heirs, legatees could not be held liable for the debts in the inheritance. An alternative way to leave a share to amici was to appoint them heir for a smaller portion of the inheritance. Thus Atticus received only three-quarters of his uncle’s inheritance. Caesennia bequeathed 23/24 of her property to her husband Caecina but left 1/72 to her friend and procurator Sex. Aebutius and 2/72 to a freedman of her late husband Fulcinius.896 Antistius left 5/6 to his propinquus C. Ateius Capito, while the remaining one sixth went to a number of unknown supporters of Pompey.897 A certain Babullius left a third of his fortune to Q. Paconius Lepta and one twelfth to Caesar.898 Cornelius Dolabella was heir to a Livia for only a ‘third of a third’ (in trientis triente).899 Cicero and his brother expected to inherit a twelfth from a Felix.900 Q. Sertorius left a share to his chief associate M. Perperna Veiento.901 When there were no close relatives at hand – which must have been quite common in the demographic circumstances of the time – the entire inheritance could be left to outsiders. Apart from Cluvius, who divided his fortune among Cicero, Caesar and Hordeonius we know of two other examples. A certain Scapula left his fortune to four heirs, none of whom seems to have been related to the deceased.902 The businessman Q. Turius left his considerable African estates to no less than six men: Sex. Aufidius, Q. Considius Gallus, L. Servilius Postumus, C. Anneius, C. Rubellius and Cn. Saturninus.903 Freedmen formed another category of potential heirs competing with friends and in-laws. We know several examples of liberti who inherited from their patrons. A certain Brinnius left the bulk of his fortune to four men, one of whom was a freedman (the others were Cicero, Suettius and Albius Sabinus).904 Zoilus, a freedman of L. Nostius, was appointed

896

CICERO, Caec. 17. CICERO, Fam. XIII, 29. 898 CICERO, Att. XIII, 48, 1. 899 CICERO, Att. VII, 8, 3. 900 CICERO, Q. fr. III, 9, 8; Att. IV, 19, 2. See also supra p. 191. 901 APPIAN, B.C. I, 114 The choice was not a happy one since Perperna killed his friend. 902 CICERO, Att. XII, 37, 2; 38a, 2; 44, 2; XIII, 26, 1; XII, 47, 1; 51, 2; XIII, 29, 1; 31, 4; XII, 5a; XIII, 33, 2; 22, 4; 33a, 1 (in chronological order). The heirs – an Otho, a Mustela, a Vergilius and a Crispus – are further unknown. 903 CICERO, Fam. XII, 26; 27. 904 CICERO, Att. XIII, 12, 4; 13-14, 4-5; 21a, 3; 22, 4; 50, 2; XIV, 8, 2; 20, 2. 897

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co-heir to his patron together with Cicero.905 As we have just seen, Caesennia instituted a freedman of her late husband Fulcinius heir for 2/72 of the inheritance, whereas her friend and procurator Aebutius received only 1/72. Not all institutions as heir were effective. It was customary to appoint heirs in the second and even third degree in case the heir(s) in the first degree would not or could not accept their shares. The institution of heirs in second and third degree offered the testator the possibility of honouring a virtually unlimited number of ‘friends’ without unduly fragmenting the inheritance. Caesar appointed Marc Antony, Brutus Albinus and others who later took part in the assassination of the dictator heir in the second degree.906 Cicero was heir in the second degree of T. Pinnius and was appointed guardian of Pinnius’s young son who was heir in the first degree. Augustus appointed Tiberius and Livia heirs in the first degree (for respectively two thirds and one third of the inheritance). Tiberius’s son Drusus was appointed heir in the second degree for one third together with Germanicus and his children for two thirds. Other relatives, friends and important senators were heirs in the third degree.907 An honorary appointment as heir in the second or third degree could become effective when the heirs in the first degree refused or were unable to accept the inheritance. This seems to have happened in the case of Lucullus, who ceded his share of an inheritance he had received to App. Claudius.908 There are no indications, however, that heirs in the second or third degree normally stood much chance of receiving a share. The case of the famous causa Curiana is special. An unknown testator had appointed a certain M’ Curius guardian of his unborn child and prescribed that Curius would be heir in the second degree if the son were to die before the guardianship had officially started. M. Coponius challenged the will because the posthumous son was never born. Therefore, the condition under which Curius had been appointed heir in the second degree could not be met. Crassus the orator defended Curius and won

905

CICERO, Fam. XIII, 46. cf. SUETONIUS, Iul. 83; APPIAN, B.C. II, 135-136, 143; DIO XLIV, 35, 2-3; PLUTARCH, Caes. 64; CICERO, Phil. II, 71. See also SHATZMAN (1975), p. 357-358. 907 SUETONIUS, Aug. 101; TACITUS, Ann. I, 8 (cf. SUETONIUS, Cl. 4, 7). On Augustusf’s will see CHAMPLIN (1989b). 908 VARRO, R.R. III, 16, 2. 906

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the case, which became a precedent for the prevailing of the testator’s intention over the formalities of his own will.909 Small legacies could serve as a different way to honour amici without unduly fragmenting an inheritance or burdening the actual heirs. A model will preserved in the Anthologia Palatina contains one legacy to a friend worth 0.76 % of the inheritance.910 In the will of (presumably) Domitius Tullus (long thought to have been the will of P. Dasumius Tuscus (cos. suff. 103 ?)) only two legatees out of approximately 50 received substantial amounts of several hundreds of thousands of sesterces. The majority of the legatees received relatively small legacies of, for example, 1 pound of gold.911 Cicero was left a symbolically small sum (a raudusculum) as legacy in the will of a supporter of Marc Antony in 44.912 Curius’s will instituted Atticus heir ex libella, Cicero ex teruncio. Literally this would mean heir for ‘a tenth’ and ‘a fortieth’. However, the terms libella and teruncius are nowhere else attested to denote a specific share of an inheritance, whereas they were commonly used to denote a very small sum. So in my view it is better not to take Cicero’s words literally. Instead of reading: ‘he openly instituted you heir for one-tenth, me for one fortieth’, we should read something like: ‘he left you a dime, and me a penny’.913 Powerful politicians attracted inheritances in exchange for the favours they had shown to the deceased. L. Valerius Flaccus was accused of unlawfully usurping the inheritance left by a certain Valeria while he was governor of Asia in 62. Cicero retorted by pointing out the many inheritances that Lucullus Ponticus had received in response to his exceptional liberalitas and the great beneficia he was wont to distribute when he was governor of Asia in charge of the war against Mithridates. T. Vettius Sabinus, the presiding praetor in the case, was about to set out to assume

909

CICERO, De orat., I, 180; Brut.144-145; 194-198; Top. 44. See also WATSON (1971), p. 44. Anth. Pal. XIV.123; CHAMPLIN (1991), p. 184-186. 911 CIL VI, 10229; AE (1976) 77; AE (1978) 16. On the identity of the testator see SYME (1988). CHAMPLIN (1991), p. 37 appears unconvinced. On Domitius Tullus and his will see also PLINY, Epist. VIII, 18 and cf. infra. Of course, 1 pound of gold (42 aurei = 4200 sesterces) was a modest sum only for senators and knights, not for the common people. Until the discovery of AE (1976) 77 Pliny and Tacitus were thought to have been among the legatees. 912 CICERO, Att. XIV, 3, 2; 14, 5. 913 CICERO, Att. VII, 2, 3: fecit palam te ex libella, me ex terruncio. The libella was a scornful term for the light (originally ‘sextantal’) as introduced at the time of the Second Punic war. The teruncius originally denoted a quadrans (see Pliny, N.H. XXXIII, 45). 910

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the governership of Africa and could hope to receive similar shares and legacies.914 Perhaps we should add the inheritances that Marc Antony received when he was magister equitum of Caesar, although Cicero claimed that Antony had usurped the inheritances though force and intimidation.915 The practice foreshadowed the situation under the Empire when the emperor normally – although not necessarily – received a share of the inheritance lef by those who had enjoyed any kind of imperial promotion or favour.916 1.18 Neglect and manipulation of the officia testamentaria. Neglect of duty and manipulation of the social norms determining who had a moral claim on a share or a legacy were favourite subjects of Roman moralists and satirists. The theme of legacy hunting or captatio testamenti loomed especiallylarge in the imagination of poets, novelists and moralists. The significance of this fixation on the abuse of social norms should not be underestimated. Regardless of the actual frequency with which such abuse occurred, the prominence of it in the imagination of people is indicative of the depth and strength of the norms in question. a) The right to do the wrong thing

We have already seen several cases of testators who were expected to leave substantial shares to their friends but who tricked the world by leaving nothing or mere trifles. It is remarkable to find that there never seems to have been any attempt to underpin the social norms regarding the rights of amici to a legacy or a share of each others inheritances legally. Roman law always defended the private and personal character of testaments. The exceptions granted to close relatives – who were able to inherit contrary to an otherwise valid will – were never extended to amici. Legal support would have been possible, for instance, by prescribing that a will had to be made public. The oldest form of a will that is known to have existed in Rome – the testamentum comitiis calatis – had been

914 CICERO, Flacc. 85. The testator was the daughter of a freedman of one of the Valerii Flacci, by virtue of which Flaccus claimed to be her tutor legitimus and nearest substitute agnate. 915 CICERO, Phil. II, 41-42; 62; 74. 916 Cf. ROGERS (1947); MILLAR (1977), p. 153-158; SALLER (1982), p. 71-73; CHAMPLIN (1991), p. 150-153, 203 (see here for a list of all known wills leaving something to the emperor).

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precisely such a public will, validated by a special assembly of the Roman people.917 Yet although some testators took the initiative to make the contents of their wills public, Roman law never seems to have considered the possibility of requiring such a publication. In other words, the law guaranteed the personal right of a testator to ignore the code of amicitia. b) Captatio testamenti

Deviation from the social norms concerning last wills not only occurred on the side of the testator. The habit of leaving shares and legacies to amici paved the way for the lucrative but much detested practice of inheritance hunting, for which the Romans devised a special term, captatio, referring to unscrupulous outsiders courting wealthy testators in the hope of receiving a large share (preferably all) of the inheritance. The captator pretended to be a sincere friend of his victim and proved his affection by gifts and services.918 Captatio was generally considered detestable. Champlin acurately describes captatio as a moral crime distinct from forgery, which was a legal crime.919 According to Cicero, the behaviour of a captator was unworthy of a free man.920 Seneca denounced captatores as ingrati.921 They feigned friendship waiting only for the death of their intimates (familiarissimi).922 Of course, much depended on interpretation. The services and gifts provided by captatores were – with the exception of sexual favours – the same as those expected in honest friendship. According to the suspected captatores themselves, their victims were ungrateful if they failed to reward their (pretended) friends’ zeal to accommodate them.923 Pliny praised the second wife of Domitius Tullus for marrying and taking care of the senile and helpless old man until his death, after which she was deservedly rewarded with a magnificent legacy. Juvenal’s tenth satire features a similar senile old man – evidently portrayed in the likeness of

917

See WATSON (1971), p. 8; JOLOWICZ (1939), p. 125. On captatio see HOPKINS (1983), p. 235-247; SALLER (1982), p. 124-125; CHAMPLIN (1991), p. 87-102, 201-202; TRACY (1980); CORBIER (1985), p. 515-517; MANSBACH (1982). 919 CHAMPLIN (1991), p. 87. 920 CICERO, Par. Stoic. 5, 39. 921 SENECA, Ben. IV, 20, 3. 922 SENECA, Ben. VI, 38, 4; cf. MARTIAL I, 10; II, 26; XI, 44; 55. 923 Cf. PLINY, Epist. VIII, 18. 918

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Tullus – leaving his fortune to the prostitute who had nursed him in his final years with precisely this aim in mind.924 Corbier speaks of ‘les deux portraits antithétiques: celui du “captateur” de testaments … et celui de l’homme estimé qui peut tirer orgeuil de recevoir beaucoup ou d’un grand nombre d’amis.’925 The shameless legacy hunter who was such a favourite character of moralists and satirists had his mirror image in the cunning testator who assured himself of the services of a multitude of ‘dear friends’, securely bound to him by the hope of a promising inheritance. An epigram of Martial features a certain Charinus who changed his testament 30 times in a single year. Each time his ‘friends’ had to send him new gifts to thank him for his kindness in mentioning them in his will. A ruined captator begs for mercy: he could afford no more gifts.926 Another epigram features a Naevia who deliberately exaggerated her fits of coughing to deceive her ‘friend’ Bithynicus.927 Tacitus and Pliny the Elder present childlessness (orbitas) as a source of wealth and power, because it attracted inheritance hunters who were easily manipulated.928 Captatio testamenti is a familiar theme in Roman literature and is well documented in satire, moral essays and descriptive literature.929 Although it is most attested under the Empire, the practice occurs as early as in Plautus’s Miles Gloriosus and Cicero’s Paradoxa Stoicorum.930 The term captare testamentum seems to have been invented by Horace.931 It has been claimed that the apparent growth of the practice of captatio testamenti reflects the diminishing alternatives for enrichment

924

PLINY, Epist. VIII, 18, 8-10; JUVENAL 10, 232-239. See CHAMPLIN (1991), p. 98; SYME (1979), p. 1137-1138. The will has been identified as the so-calle testamentum Dasumii, cf. supra p. 195. 925 CORBIER (1985), p. 515-517. See also CHAMPLIN (1991), p. 90. 926 MARTIAL V, 39. 927 MARTIAL II, 26. See also MARTIAL IX, 8; PLINY, Epist. VIII, 18; JUVENAL 3, 128-130. See TRACY (1980), p. 401; CHAMPLIN (1991), p. 24-25. 928 TACITUS, Dial. 6, 2; Hist. I, 73; Ann. XIII, 52; PLINY, N.H. XIV, 5. See MARTIAL XI, 44; PETRONIUS 116, 7; PLUTARCH, Mor. 497a-c. See also WALLACE-HADRILL (1981), p. 69; CHAMPLIN (1991), p. 91-93. 929 Cf. e.g. HORACE, Serm. II, 5; MARTIAL I, 10; II, 26; IV, 56; V, 39; VI, 62; 63; VII, 66; VIII, 27; IX, 8; 48; XI, 44; 55; XII, 10; JUVENAL 1, 37-39, 132-146; 4, 15-21; 5, 96-98; 137-145; 6, 39-40; 10, 202; 12, 97; 130; PETRONIUS 116, 6-8; LUCIANUS, Dial. Mort. 345 (15, 5); CICERO, Par. Stoic. 5, 39; SENECA, Ben. IV, 20; VI, 38; PUBLILIUS SYRUS, Sent. C6 (ed. Meyer). See also LAFLEUR (1979), p. 160 on Juvenal. For a list of testimonia see MANSBACH (1982), p. 118-135. 930 PLAUTUS, Mil. 705-715; CICERO, Par. Stoic. 5, 39. See also CICERO, Clu.162. 931 HORACE, Serm. II, 5, 23-24.

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as the Roman Empire grew to its greatest size and the lucrative conquests ended.932 However, legacy or inheritance hunting was not a monopoly of the Roman moral underworld. The solicitous nephew courting his old and childless aunt or uncle is a familiar figure in melodrama, satires and other literary genres even today. Throughout the ages, childless elderly people with money have attracted flatterers, mistresses and ‘dear friends’.933 What makes Roman society special was not the existence of the phenomenon as such, nor perhaps the scale on which it actually occurred, but the scale on which it was claimed by contemporary authors to occur.934 This was only possible because Roman testamentary habits greatly facilitated the practices of potnetial captatores. Roman citizens were expected to make last wills and to leave a share to their deserving friends. In the absence of near family – a case that must have been common in the Roman demographic context – friends or distant relatives were the most likely heirs. Yet as Champlin and Mansbach point out, the evidence for captatio outside literary satire is meagre and the frequency with which captatio occurs in Roman literature does not necessarily reflect social reality.935 We know that captatio was considered a sign of the degeneration responsible for the decline of moral rectitude, but this does not imply that the practice was particularly frequent. The heart of the problem is that captatio differed from amicitia only in its motives. A captator only pretended to care, while a friend truly cared. The implication is that it was next to impossible to determine with certainty when an heir was a captator or not. The figure of the successful captator served as the pathological twin brother of the friend who deservedly received the rich inheritance left by the man or woman whom he had always respected and helped. Captatio, therefore, was inextricably linked with the genuine moral obligation to bequeath shares and legacies to friends. c) Abuse of power

Manipulation and abuse took on different and far greater proportions in the case of unscrupulous political and military leaders. I have already mentioned the inheritances from Rubrius from Casinum and L. Turselius.

932

Cf. SALLER (1982), p. 124; HOPKINS (1983), p. 239. Cf. e.g. ISAEUS, 8, 37; DEMOSTHENES, Leoch. (XLIV) 63. 934 See e.g. PLINY, N.H. XIV, 1, 5. 935 MANSBACH (1992), p. 57-94; CHAMPLIN (1991), p. 96, 100-102. 933

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Cicero insinuated that Marc Antony had usurped by force numerous inheritances from people who had been complete strangers to him.936 A famous but obscure case is that of the so-called ‘Turia’. Her parents had been murdered in 43 and her fiancée had fled the conscription of the triumvirs. ‘Turia’ herself took refuge with her aunt. The will of her father seems to have appointed as heirs ‘Turia’s’ fiancée and the husband of her sister, with a fideicommissum or a legatum partitionis to hand over the bulk of the inheritance to Turia and her sister, who under the lex Voconia were not allowed to be heirs. A few men whose names are not recorded put pressure on Turia to challenge the will of her father on the grounds that her father had been married cum manu. This would have implied that her mother was legally regarded as her sister, i.e. as a child of her father who either had to receive a share or had to be explicitly disinherited for the will to be valid. If the will was invalid, ‘Turia’s’ sister would be excluded from her father’s inheritance on the grounds that she was married cum manu, cutting her off from the inheritance ab intestato. This would leave ‘Turia’ as sole heir, but it would also mean that Turia would be placed under the legal guardianship (tutela legitima) of her gentiles, which was precisely what the impostors claimed to be. In the end Turia withstood the intimidation and managed to uphold the will of her father. We do not know what the impostors threatened to do, but clearly, they occupied some position of power in the new regime, which they hoped to use against ‘Turia’.937 d) Falsum.

The Roman custom of leaving shares and legacies to outsiders offered ideal opportunities to forgers. Falsification of wills was severely punished as a public crime against the entire community and was tried by a special court, the quaestio perpetua de falsis instituted by Sulla.938 A famous case of forgery was that of the will of L. Minucius Basilus. In his will, Basilus adopted his sister’s son M. Satrius and appointed him first heir. Certain unnamed impostors intercepted the will and rewrote it to their own advantage. To insure that the false will would not be challenged and their treachery unveiled, they inserted as co-heirs to themselves Crassus

936

CICERO, Phil. II, 41: ui eiectis ueris heredibus. See also Phil. II, 40-41; 62; 74 cf. CIL VI, 37053 (= FIRA III, no. 69, p. 209-218). See CROOK (1986), p. 74; WATSON (1967), p. 121-122; VAN OVEN (1949); GORDON (1977). 938 Cf. Dig. XXIX, 3, 2, pr. 937

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and Q. Hortensius Hortalus, two of the mightiest men in Rome at the time.939 In another case, St. Oppianicus was accused of having forged the will of a certain Asuvius, a rich young man from Larinum, whom he subsequently murdered.940 The same Oppianicus was said to have interfered with the will of his mother in law Dinaea by striking out a number of legacies.941 1.19 Tutela testamentaria. The importance of guardianship in the demographic context of the Ancient World is often ignored in general works about the Roman family. Saller estimates that about a third of all children under fourteen had lost their father and were, therefore, placed in the guardianship of others. These children would have represented about one sixth of all property owners.942 The legal rules concerning the appointment of guardians were largely part and parcel of the law of succession. In the absence of guardians appointed in a will (tutores testamentarii), the nearest paternal blood relatives (proximi agnati) – or in the case of freedmen their patroni – were appointed legal guardian (tutor legitimus). In the absence of agnati, guardianship went to the gentiles. The lex Atilia (probably 210 BCE) created the possibility of a tutor datus appointed by the praetor in the absence of agnati and gentiles.943 Guardianship over boys ended automatically at the age of fourteen, but women remained in guardianship for their entire life. As far as tutela testamentaria and tutela data were concerned such guardianship had largely become an empty box by the time of the Late Republic. Tutela legitima over women, however, kept most of its ancient force until a law of the emperor Claudius effectively abolished it.944 Valerius Flaccus was able to appeal to his tutela legitima over a certain Valeria, who had died intestate, to claim her inheritance on the grounds that her marriage cum manu with a certain Sextilius Andro had been invalid because it had not been

939

CICERO, Off. III, 73; VALERIUS MAXIMUS IX, 4, 1. CICERO, Clu. 36-39. 941 CICERO, Clu. 41. 942 SALLER (1994), p. 189-190. 943 On the types of tutela and their historical development see WATSON (1967), p. 114-130. 944 See mainly DIXON (1984); WATSON (1967), p. 146-154. Cf. CICERO, Mur. 27. 940

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approved by her legal guardians.945 The impostors who threatened Turia tried to pass as her tutores legitimi in order to gain effective control of her and her property (cf. supra p. 200). The attempt failed, but their desire to do so indicates that the position would have given them effective control over Turia and her property. By far the most common type of guardian was the tutor testamentarius. A testator had a large freedom of choice in appointing the guardians he liked for his children or his wife in manu. Tutela testamentaria was considerably more simple and flexible than tutela legitima. Testamentary guardians were not obliged to offer sureties and any tutor testamentarius could act alone, whereas tutores legitimi had to act collectively. When a testator appointed more than one testamentary guardian for his children, one or more of these took the daily administration of their pupil’s interests upon themselves (the tutores gerentes), while the other remained honorary tutores who could be called upon if necessary.946 We can see a clear distinction in the case of young P. Iunius between the tutores gerentes M. Iunius (the boy’s uncle) and P. Titius (an amicus of the boy’s father) on the one hand and the honorary guardian M. Claudius Marcellus (of praetorian rank) on the other. Interestingly, the boy’s tutores gerentes co-operated with the boy’s stepfather C. Mustius, who had not been appointed guardian by Iunius’s father. When Verres tried to extort a huge sum of money from the boy with the aid of his partner in crime L. Rabonius947, C. Mustius and the boy’s tutores gerentes were the first to deal with the matter. They subsequently took the initiative by contacting Claudius Marcellus to put pressure on Verres.948 We find the same Marcellus as guardian of the young Heius of Lilybaeum in Sicily. The Claudii Marcelli had been important patrons of the island since generations, but they did not reside there. He can hardly have been expected to administer his pupil’s affairs on a daily basis and must have been

945

CICERO, Flacc. 84-86. See CROOK (1986), p. 72-73; FABRE (1981), p. 312; WATSON (1967), p. 21. 946 VAN OVEN (1948), p. 507-509; KASER (1955) I, p. 307. WATSON (1967), p. 138 does not believe that such an official distinction existed under the Republic. See also Fragm. Vat. 304. Dig. XXVI, 28, 4 (Ofilius) indicates that the matter was still debated in Caesar’s time, implying that the distinction had until then been more a practical one, than a formal one. 947 Not Habonius as in some manuscripts, see NICOLET (1966-1974), p. 1002. 948 CICERO, 2 Verr. I, 135. Note that Rabonius too was appointed tutor by the boy’s father.

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appointed tutor because of his social and political influence.949 We may assume a similar motivation in the case of Cicero’s appointment as guardian of young T. Pinnius, the son of an important businessman in the East.950 The appointment of guardians in a will was an important social responsibility of every testator. A man who died leaving a will in which no arrangements were made regarding the guardianship of his children could be termed intestatus.951 Conversely, it was both an honour and a burden (a munus) to be appointed guardian in a will.952 The man who was thus honoured was morally obliged to accept the appointment and to be honest and loyal in its fulfilment. The relation between a guardian and his pupil was governed by bona fides. Consequently, the actio tutelae was an actio bonae fidei and a condemned guardian became infamus. The nature of the actio tutelae as an actio famosae testifies to the degree to which a man’s prestige and social position depended on the way he performed his duties as a guardian.953 According to Aulus Gellius, the duties of guardianship (officia tutelae) ranked second in the order of personal obligations in the mos maiorum, immediately after and almost on a par with the duties owed to parents.954 To accept an appointment as guardian implied commitment of a man’s fides in the sense of social credibility. Fides itself – as we have seen – determined a man’s reputation (existimatio), which in turn determined his social position. A close connection existed, therefore, between the duties of guardianship on the one hand and the social position of the guardian on the other. The fact that a testator appointed someone as guardian of his children constituted a vote of confidence in that person’s fides, thereby confirming his reputation and social position.955

949 950

CICERO, 2 Verr. IV, 37. CICERO, Fam. XIII, 61. On Pinnius and his relation with Cicero see DENIAUX (1993a), p. 540-

541. 951

SALLER (1994), p. 183-193. On tutela as a munus see WATSON (1967), p. 103-105; VAN OVEN (1948), p. 493-495. 953 Cf. CICERO, Rosc. Com. 16 (iudicium priuatum summae existimationis et paene dicam capitis); Caec. 7; N. D. 74; Off. III, 70; Top. 42; GAIUS IV, 62; 182. 954 GELLIUS V, 13. On the expression officia tutelae see CICERO, 2 Verr. I, 94. 955 Cf. SALLER (1994), p. 200. See also Dig. 2XXVI, 10, 4, pr.-1; 9, pr.; CIL VI, 2210. 952

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When we look at the persons who were commonly appointed tutor, it appears that near male relatives were the most obvious choice. When a testator spurned a near relative in favour of outsiders, it was considered an insult to the man in question and one that his personal enemies immediately seized upon. Cicero, for example, used it against Gellius Poblicola, a supporter of P. Clodius, who testified against P. Sestius. Gellius’s nephew (sister’s son) Postumius had neglected to appoint him tutor of his children while numerous others – including non-relatives – were appointed guardian.956 Magius had instituted his nephew young C. Oppianicus as heir in the second degree. The unborn child with whom his wife was pregnant at the time was instituted heir in the first degree. However, Magius ostentatiously neglected to appoint St. Oppianicus, (father of the heir in the second degree) tutor of the unborn child. Cicero seized upon this fact as proof of Magius’s suspicions of St. Oppianicus’s crimes.957 According to Cicero, Magius’s ill treatment of St. Oppianicus was quite common. The man was generally considered so depraved that none of his relations by marriage or blood had ever appointed him tutor.958 However, demographic models show that about a third of all minor children had no uncle or older brother to qualify as guardian.959 A person’s best and most loyal friends were in that case the most obvois choice.960 Cicero was guardian and heir in the second degree of T. Pinnius’s son. The testator’s choice expressed his familiaritas with Cicero and Cicero’s acceptance of the appointment indicated his commitment to Pinnius to continue their amicitia after his death in the person of Pinnius’s son.961 The children of C. Valerius Triarius were also placed under the guardianship of Cicero, who afterwards expressed his sincere affection for Valerius and his children to Atticus.962 Cato was guardian of young Lucullus (Ponticus’s son).963 In turn, Cato put his own son

956 CICERO, Sest. 111. See NICOLET (1966-1974), p. 898-903; BENNER (1987), p. 160-161 on Gellius’s identity. 957 CICERO, Clu. 34. On the family relations see MOREAU (1983). 958 CICERO, Clu. 41. 959 SALLER (1994), p. 196-197. 960 Cf. Dig. XXVII, 1, 36, pr. (Paulus): the amicissimi and fidelissimi. 961 CICERO, Fam. XIII, 61. 962 CICERO, Att. XII, 28, 3. 963 CICERO, Fin. III, 9; Att. XIII, 6, 2. Lucullus also recommended his son to Cicero, although he does not seem to have appointed Cicero tutor.

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in the guardianship of (among others) Cicero and Atticus.964 Verres was tutor of C. Publicius Malleolus’s son, but abused his position to rob the boy of 2.5 million sesterces. In his oration against Verres, Cicero invokes the ghost of Malleolus returning from Hades to demand Verres’s fulfilment of his duties as guardian, comrade and friend (officia tutelae sodalitatis familiaritatisque).965 The appointment of close relatives and relations by marriage did not exclude amici. As a rule, more than one tutor was appointed. This offered ample scope for a testator to appoint both relatives by blood and marriage and amici. P. Iunius appointed at least four guardians over his son, among whom was his brother M. Iunius. The boy’s paternal uncle handled his young nephew’s interests together with the boy’s stepfather and another guardian, P. Titius, whose relations with P. Iunius are unknown. Of the two other tutores, L. Rabonius had been a business associate of P. Iunius, while M. Claudius Marcellus can only have been the family’s patron or amicus maior.966 In his letter of recommendation for his pupil T. Pinnius, Cicero referred to the boy’s other tutores without explaining their relationship with T. Pinnius.967 Verres had to answer for his actions as guardian of young Malleolus to the other tutores.968 Sulla appointed several of his friends as tutores of his son.969 Caesar appointed a large number of tutores in case a child would be born to him posthumously, among whom were several political amici such as Marc Antony and Brutus Albinus and many others who were later involved in the assassination of the dictator.970 The degree to which it was customary to choose guardians among one’s amici is apparent from the exemption granted to the members of a number of large collegia under the Empire from the obligation to accept testamentary guardianships from nonrelatives. The members of other collegia were granted the privilege of exemption only towards non-members.971 If the appointment of non-relatives had been exceptional, such an exemption would have been irrelevant.

964

CICERO, Att. XIII, 6, 2. CICERO, 2 Verr. I, 90-94. 966 Cf. CICERO, 2 Verr. I, 130-156. See WATSON (1967), p. 136-137. 967 CICERO, Fam. XIII, 61. 968 CICERO, 2 Verr. I, 92. 969 PLUTARCH, Pomp. 15, 3. 970 APPIAN, B.C. II, 143; DIO XLIV, 35, 2-3. 971 Dig. XXVII, 1, 17, 2-3; XLI, 3. 965

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There was a close connection between the appointment of guardians and the institution of heirs and legatees. The case of T. Pinnius illustrates that tutores could be appointed heir in the second degree. Caesar also chose some close amici both as tutor and heir in the second degree. The famous causa Curiana mentioned above concerned a man who had been appointed both tutor to an unborn son and heir in the second degree.972 Sulla gave legacies to all the friends he had appointed as guardians of his son.973 The jurist Paulus later asserted that amici who had been appointed tutor often received a legacy to thank and honour them.974 1.20 Quantitative importance of the officia testamentaria. a) Shares and legacies.

Amici came after near family in the order of claims on a person’s inheritance, but they seriously competed with cognates who were not relatives in the first or second degree. Childlessness was not rare in the Roman demographic context. Comparative research suggests that about 20% of all married men died without leaving children behind, while another 20% died leaving only a daughter. Clearly, the potential importance of inheritances to amici was considerable.975 To estimate the actual aggregate value of the inheritances and legacies awarded to amici, however, is much harder. According to Dio, Augustus instituted the 5% tax on inheritances (uicesima hereditatum) to finance retirement bonuses for veterans. Near family (probably to the sixth degree) were exempted, implying that the tax was mainly levied on shares and legacies to amici. Hopkins estimates the yearly amount needed at 65 million sesterces, which would imply a total value of the inheritances and legacies given to amici of 1,300 million sesterces. Hopkins rightly rejects this figure as too high to be credible. Duncan-Jones estimates the cost of the bonuses at only 43 million. This would imply a tax base of ‘only’ 860 million but even this figure is

972

CICERO, De orat. I, 180; Brut. 144-145; 194-198; Top. 44. See also WATSON (1971), p. 44. PLUTARCH, Sul. 38, 1; Pomp. 15, 3. 974 Dig. XXVII, 1, 36, pr. see also PERSIUS 2, 12-13. 975 See HOPKINS (1983), p. 99-107. See also Saller’s simulation of the Roman kinship universe (SALLER (1994), p. 43-73). See also PAVIS D’ESCURAC (1978), p. 285-286. 973

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too high to be credible. We must assume, therefore, that other revenues existed that are not mentioned by Dio. 976 However, Dio’s account is useful in that it indicates that the total value of inheritances and legacies to amici was at least big enough for the five percent tax to be the single most important revenue needed to finance the bonuses. So the actual annual ‘turnover’ of shares and legacies to friends must have amounted to several hundreds of million sesterces. On the micro-economic level, we are somewhat better informed. In 43, Cicero claimed to have received 20 million sesterces’ worth of legacies and inheritances from friends in the course of his life. If we assume 40 years of active life during which Cicero received these legacies and inheritances, we arrive at the (incredible) average of 500,000 sesterces annually. Marc Antony is said to have inherited much more, albeit (dixit Cicero) through force and intimidation.977 According to Plutarch, a legacy of 360,000 sesterces laid the foundations for Cicero’s fortune early in his life.978 In 59, the old philosopher Diodotus left him about 100,000 sesterces.979 In the ten years between 54 and 44, Cicero received at least one inheritance or legacy from amici a year (with the exception of 53 and 49). One of these – the inheritance left by the Puteolean businessman Cluvius – contained, besides large sums in cash and silverware an insula with shops in Puteoli yielding a total revenue of 100,000 sesterces a year, which Cicero bought from his co-heirs.980 A legacy in 51 from an unknown testator brought in 256,000 sesterces.981 Another businessman, L. Cossinius, left him a legacy of at least 200,000 sesterces in 45.982 An inheritance in 48 brought in enough to sustain

976 DIO LV, 25, 5. HOPKINS (1983), p. 243; HOPKINS (1984), p. 124-125. DUNCAN-JONES (1994), p. 36. Goldsmith assumes that the one- percent tax on auctions instituted by Augustus served the same purpose and estimates the amount that had to be raised yearly by the uicesima hereditatum at 50 million, implying a total tax base of 1, 000 million sesterces. (GOLDSMITH (1987), p. 53-54. 977 CICERO, Phil. II, 40. On Cicero’s inheritances see SMUTNY (1951-1952); BOREN (19611962). 978 PLUTARCH, Cic. 8, 2. 979 CICERO, Att. II, 20, 6. 980 CICERO, Att. XIII, 45, 2-3; 46, 3-4; 37a; XIV, 9, 1; 10, 3; 11, 2; XVI, 2, 1; 6, 3. On Cluvius and his relation with Cicero see DENIAUX (1993a), p. 480-482; ANDREAU (1983); RAUH (1986), p. 2223. 981 CICERO, Att. VI, 5, 2. 982 CICERO, Att. XIII, 46, 4. Cicero ‘delegated’ the legacy to his brother. A letter written one year later gives the amount of the debt: 200, 000 sesterces (CICERO, Att. XV, 20, 4). On Cossinius and his relation with Cicero see DENIAUX (1993a), p. 485-487; D’ARMS (1981), p. 69, 89.

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Cicero’s credit.983 The share he received of the inheritance left by Fufidius, a nobleman from Arpinum, yielded nearly 30,000 sesterces.984 In 44, Cicero sold his share (one eighth) in a building he had inherited for 47,500 sesterces, which seems to have been below its market value.985 Consequently, in the ten years between 54 and 44 Cicero must have received annually an average of at least 100,000 sesterces and probably much more. This is far below the 500,000 sesterces we inferred from the 20 million sesterces Cicero boasted to have received in 43, but it is still a very considerable sum. What proportion did the income from inheritances and legacies represent of Cicero’s total income? In his Paradoxa Stoicorum Cicero claims that his property yielded a yearly revenue of only 100,000 sesterces.986 However, this figure is incompatible with what we know of both Cicero’s expenditure and his property. In a letter to Atticus, Cicero wrote that his possessiones uectigales covered his minimumexpenses.987 Cicero’s total patrimony is usually estimated at approximately 10 to 13 million sesterces, most of which was in real estate. However, a considerable portion of this consisted of non-productive property. His house on the Palatine was worth 3.5 million sesterces. His villa in Tusculum was worth 500,000 sesterces, while the villa in Formia was worth 250,000 sesterces. Both latter sums refer only to the buildings on the estates and do not comprise the value of the land and the gardens.988 So nonproductive property appears to have comprised half or more of Cicero’s patrimony, leaving approximately 5-6 million worth of productive property. Property yielded a certain, but not excessive, revenue well below 10%, so Cicero’s main source of income must have lain well below 500,000 sesterces. Everything indicates, therefore, that Cicero’s average income from the inheritances from his amici represented as much as a fifth or more of his yearly income. Cicero was no exception in this respect. Cornelius Nepos claimed that inheritances were a major source of income for Atticus.989 Pliny’s letters

983

CICERO, Att. XI, 2, 1. CICERO, Att. XI, 13, 3; 14, 3; 15, 4. On the Fufidii and their relation with the Cicerones see DENIAUX (1993a), p. 501-503. 985 CICERO, Att. XV, 26, 4. 986 CICERO, Par. Stoic. 6, 49. See also SHATZMAN (1975), p. 407; FRIER (1978); SMUTNY (1951-1952); BOREN (1961-1962). 987 CICERO, Att. XII, 25, 1. 988 Cf. SHATZMAN (1975), p. 407; CARCOPINO (1947) I, p. 91. 989 NEPOS, Att. 21, 1. 984

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mention several inheritances among which was one of 1.1 million sesterces and another of 900,000 sesterces, and a legacy of 50,000 sesterces. In the course of the fifteen years during which he wrote his letters, Pliny must have received considerably more than 2 million sesterces worth in this way.990 Augustus claimed to have received 1.4 billion sesterces worth of inheritances and legacies in the last twenty years of his life alone. Hopkins rejects this figure as incredibly high because it would represent approximately 10% of the state income (as estimated by the same author).991 However, legacies and inheritances to an emperor cannot be measured by ordinary standards. The 1.4 billion was clearly not in cash. This sum represented the total estimated value of estates, insulae, works of art, libraries and so forth. Herod the Great alone left 40 million sesterces to Augustus in 4 BCE, besides large amounts of gold and silver bullion and precious clothes. Augustus ceded the inheritance, but the case illustrates the size that inheritances to emperors could reach.992 Tiberius inherited 400 million sesterces from Cn. Lentulus the augur.993 Nero received as much from Claudius’s freedman Narcissus.994 b) Guardianships.

If approximately one sixth of all property owners were orphaned children in tutela and approximately one third of these had no near male relatives, then only about 5.5 % of all property was under the control of paternal amici as guardians.995 However, this relatively low figure is somewhat misleading for two reasons. Firstly, the appointment of near relatives as guardians did not exclude amici and given the habit of appointing a plurality of tutores, we can safely assume that most if not all of underage property owners had amici paterni as guardians. Secondly, the same demographic simulation would indicate that about 80% of all forty-year-old men had minor children for whom they were expected to appoint tutores in their will. The fact that only a minority of these

990

Cf. DUNCAN-JONES (1982), p. 25-27; PAVIS D’ESCURAC (1978), p. 283-285. SUETONIUS, Aug. 101, 3; HOPKINS (1983), p. 237-238, n. 48; contra CHAMPLIN (1989b), p. 160-161: ‘the sum is astounding but believable’. 992 JOSEPHUS, Ant. XVII, 8, 1; Bell. Iud. I, 32, 7. Note, however, that Augustus may have exaggerated by counting also the inheritances entrusted to him by fideicommissum that he scrupulously and invariably paid out (SUETONIUS, Aug. 66, 4). 993 SENECA, Ben. I, 27; SUETONIUS, Tib. 49, 1. 994 DIO XL, 34. 995 Cf. SALLER (1994), p. 48-65, 189-190. 991

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guardianships became effective does not detract from either the obligation of the testator to appoint guardians or from the honour of being appointed guardian in a will. When the emperor Claudius made the acceptance of testamentary guardianships legally enforceable, the law excused those who had already three other guardianships to manage.996 However, the provision did not prevent persons from being appointed tutor by more than three testators. We can assume, therefore, that a notable was usually mentioned simultaneously in several testaments as guardian and was often effectively testamentary guardian of several unrelated children. Cicero was tutor simultaneously of Pinnius’s, Cato’s and Valerius Triarius’s children while being in no way related to any of their fathers. A. Clodius Apollonius from Drepana seems to have been guardian of several unrelated pupils simultaneously.997 Marcellus was probably tutor simultaneously of both P. Iunius filius and young Heius. The role of guardian (effective and potential), therefore, was an integral part of the social personality of a notable, whose reputation (existimatio) could be measured by the number of testamentary guardianships with which he was entrusted. 1.21 Purpose and function of the beneficia / officia testamentaria. a) Gratification and networking

It would be a platitude to say that last wills are meant to pass property from one generation to the next. But why was a Roman testator so eager to leave legacies and shares of his inheritance to amici? According to Seneca, mentioning a friend in a will was the purest and most disinterested officium imaginable, since the testator could not hope for a counter-favour. It was the ultimate proof, therefore, that feelings of gratitude (gratia) and the desire to reward beneficia were sincere and deeply human.998 But is this true? Did the custom of honouring and rewarding friends, protégés and protectors in a will really reflect a culturally cherished sincere gratitude? It has virtually become a commonplace among scholars to interpret the many inheritances and legacies left to Cicero and other orators as

996

Dig. XXVII, 1, 3 CICERO, 2 Verr. II, 140; IV, 37. 998 SENECA, Ben. IV, 22, 1. 997

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‘payment’ for their services in court.999 However, in fact, we have not one single case on record of a defence in court being paid by a legacy or inclusion in an inheritance.1000 The officia testamentaria were part of the set of favours and gifts that held reciprocity relations together. If we may believe Quintilian and Asinius Pollio, Liburnia’s son justified his institution of Gallio as heir by referring to the obligation that he felt to repay Gallio’s past services.1001 Cicero briefly explains why A. Cluentius inherited from P. Aelius (while a relative of Aelius received nothing!) by claiming that Cluentius had ‘deserved’ the inheritance.1002 A passage in the Digest distinguishes between inheritances from parents or freedmen that were quasi debitum and inheritances, legacies and gifts from others that were ob meritum.1003 There is not the slightest indication in any of these cases that a defence in court had provoked the institution of the external heir. Therefore, to interpret all cases in which someone received a legacy or a share as an indication that the beneficiary had defended the testator in court is to take for granted what remains to be proved.1004 Of course, many lawyers and orators – among whom in the case of P. Sulla also Cicero – sold their services, but the patronus mercennarius did not wait for the death of his clients to pocket his fee. He expected immediate (and discrete) payment, if necessary in the form of an interest-free ‘loan’. How could the venal lawyer know that he would not die first? How could he be sure that his ‘client’ would honour the deal? When would this payment finally come? The private and secret character of Roman wills, which could be changed whenever the testator wished, made them unsuitable for the arrangement of postponed payments. Since the venal lawyer demanded immediate payment, these were precisely the

999

See e.g. FRANK (1933), p. 393-395; BOREN (1961-1962), p. 18-19; MICHEL (1962), p. 539; GARNSEY & SALLER (1987), p. 155; contra see SMUTNY (1951-1952); DAVID (1992), p. 137-145. 1000 Cf. DAVID (1992), p. 139. Contrary to Carcopino’s beliefs, there is nothing to indicate that Cicero was Cluvius’s lawyer. The sole fact that Cicero knew Cluvius had contracts with 5 Asian cities is insufficient evidence (CARCOPINO (1947), p. 177-179; cf. infra p. 214 on the case). 1001 QUINTILIAN, Inst. IX, 2, 34-35: omnia meritissimo uolo et debeo. 1002 CICERO, Clu. 162: Habiti merito fecit. 1003 Dig. XVII, 2, 9-10. See also CHAMPLIN (1991), p. 13. See MARTIAL VII, 66; PLINY, Epist. II, 20, 11; APULEIUS, Apol. 23. 1004 See DAVID (1992), p. 140: ‘La recherche d’un lien aussi mécanique entre plaidoirie et héritage procède d’une lecture très réductrice des rapports entre client et patronus.’

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cases in which a legacy or a share of an inheritance was not likely to be given to the patronus because the payment he had already exacted from his client extinguished all obligations the latter would have had towards his court-patronus. This is not to say that Roman orators did not benefit substantially from their services in court. We can, on the contrary, be confident that court-patroni received numerous inheritances and legacies from their former clients since a defence in court was the prime beneficium that a friend and protector could bestow. The fundamental feature of Roman advocacy was that lawyers and orators were expected to have a personal fides-relationship with their ‘clients’. Their services in court were performed as beneficia and although, as we have seen, a beneficium was by nature free, it created gratia and had to be reciprocated. Therefore, a defence in court put people under an obligation of gratia that could and should be remembered in a will. But although shares and legacies were the ultimate officium that could be given in response to past beneficia, other officia, such as financial or political support, recommendations or mandates, also qualified. Especially when the client was a man (or woman) of means and influence, the obligation to reciprocate could in the end easily have been met by other services, so that the court-patronus could be satisfied by a small symbolic share or legacy. Conversely, the very fact that a court-patronus had a fides-relation with his client implied that the latter was entitled to yet more beneficia. A defence in court – at least ideologically – was only one among many services provided. We can also be quite confident also that oratory was effective in legacy hunting. Tacitus may have hinted to this fact in his praise of oratory when he stressed the concourse of the childless and wealthy to the young and gifted orator:. ‘What is more pleasing to a free and freeborn soul, born for honourable pleasures, than to see one’s house always filled and frequented with a concourse of illustrious men? And to know that they come not for your money or childlessness or official position but for you. On the contrary even, in many cases the childless and wealthy and powerful come to you in your youth and poverty to commend their cases or those of their friends to you.’1005 However, as we have seen, the legacy

1005 TACITUS, Dial. 6, 3: quid enim dulcius libero et ingenuo animo et ad uoluptates honestas nato quam uidere plenam semper et frequentem domum suam concursu splendidissimorum hominum? idque scire non pecuniae, non orbitati, non officii alicuius administrationi, sed sibi ipsi dari? ipsos quin immo orbos et locupletes et potentis uenire plerumque ad iuuenem et pauperem, ut aut sua aut amicorum discrimina commendent.

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hunter manipulated the rules of amicitia by pretending to conform to them and his reward was always uncertain. However, to interpret shares and legacies as means of payment is to obscure the difference between ‘payment’ and ‘advantage’. The services provided in personal fides-relations were never specified in advance. They had to be provided as the need occurred. Thus a defence in court could be one of them, a loan, a gift or a legacy another. Although both court-patron and client derived advantages from their fides relation with each other, there was no payment in the sense of a specified exchange. What distinguished the patronus mercennarius was not that he benefited from his services, but that he provided these to anybody in exchange for immediate payment. The characteristic behaviour of inheritance hunters confirms the status of legacies and shares as returns for gifts and services that the testator enjoyed during his lifetime. Their services were like investments that they hoped would pay off when their ‘dear friend’ died. When Domitius Tullus died without leaving anything to his captatores, many reproached him for being an ingrate.1006 Valerius Maximus claims that Lucullus Ponticus had a right to a share of Q. Caecilius’s inheritance because Caecilius owed his position and fortune to Lucullus’s dedication and generosity.1007 According to Cornelius Nepos, Atticus was Caecilius’s first heir because he had always courteously endured Caecilius’s difficult character, thus retaining his uncle’s goodwill (beneuolentia). Nepos’s comment is illuminating: ‘he thereby reaped the fruits of his piety’.1008 Neither in Atticus’s nor in Lucullus’s case was Caecilius’s inheritance an isolated windfall. During his military command in Asia, Lucullus received important inheritances, reputedly thanks to his exceptional liberalitas and the great favours he had shown to people (pro tua eximia liberalitate maximisque beneficiis).1009 Atticus received numerous inheritances in the course of his life thanks to his bonitas, a quality of character implying helpfulness to friends.1010

1006

PLINY, Epist. VIII, 18; SHERWIN-WHITE (1966), p. 46-471. See also MARTIAL IV, 56; V, 39; VI, 62; IX, 8; 48. 1007 VALERIUS MAXIMUS VII, 8, 5: promptissimo studio maximaque liberalitate et honestum dignitatis gradum et amplissimum patrimonium consecutus. 1008 NEPOS, Att. 5, 1: quo facto tulit pietatis fructum. 1009 CICERO, Flacc. 85. 1010 NEPOS, Att. 21, 1. On bonitas see CICERO, Rab. Post. 3; SENECA, 4, 40, 2: Nec enim ideo beneficium nouum reicere debeo, quia nondum prius reddidi. Accipiam tam libenter, quam dabitur, et praebebo me amico meo exercendae bonitatis suae capacem materiam.

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We don’t know why these anonymous testators left shares and legacies to Atticus and Lucullus, but Caecilius was a notorious usurer and Valerius Maximus’s version of the story leaves no doubt that Lucullus’s support had played a crucial role in Caecilius’s business ventures. This brings us to the inheritances and legacies from other businessmen. The negotiator Vennonius left an important legacy to Caerellia, a highly placed lady who was particularly befriended to Cicero.1011 Cicero inherited from the businessman L. Nostius.1012 Q. Fufidius was a notable from Arpinum who was also a famous usurer. Both Cicero and his brother were close with the Fufidii. Fufidius the faenerator, or his son, was a military tribune of Q. Cicero in Asia. Cicero himself furthered the career of Fufidius’s son as a local magistrate in Arpinum. When Q. Fufidius died in 48, he left a share of his inheritance to Cicero.1013 The two most cited cases of businessmen leaving a share of their inheritance to upper class friends are those of Cluvius from Puteoli and M’ Curius from Patrae. Cluvius was a wealthy financier in Puteoli who died without leaving children.1014 He divided his inheritance between three heirs. One share went to a certain Hordeonius, who belonged to another important family of Campanian businessmen. Hordeonius appears to have been Cluvius’s main heir, since he was entrusted with the burial rites (the sepulcra). Presumably, Hordeonius had co-operated with Cluvius during his lifetime. 1015 The other two heirs were Caesar and Cicero. Cluvius had acted as financial intermediary for Cicero and Pompey in the late fifties investing their money in interest bearing loans. Cicero had written a letter of recommendation for Cluvius in 51 to the governor of Asia regarding his claims on five cities that were deeply in debt to him

1011

CICERO, Fam. XIII, 72. On Caerellia see DENIAUX (1993a), p. 473-474; AUSTIN (19451946); HATZFELD (1919), p. 122; SHACKLETON BAILEY (1977a) II, p. 451. 1012 CICERO, Fam. XIII, 46. On Nostius see DENIAUX (1993a), p. 531-532; TREGGIARI (1969), p. 216. 1013 CICERO, Att. XI, 13, 3; 14, 3; 15, 4. On the Fufidii from Arpinum and their relations with Cicero see DENIAUX (1993a), p. 501-503; NICOLET (1966-1974), p. 882-883; SUOLAHTI (1955), p. 116. 1014 On Cluvius’s background and business activities cf. supra p. 164-166. On his will: CICERO, Att. XIII, 45, 2-3; 46, 3-4; 37; XIV, 9, 1; 10, 3; 11, 2; XVI, 2, 1; 6, 3. 1015 On the Hordeonii see ILLRP 135, 706, 714, 719; HATZFELD (1912), p. 44; CÉBEILLACCERVASONI (1998), p. 114, 165, 188-190, 248.

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and (via Cluvius) to Pompey.1016 This commendatio clearly illustrates how Cluvius’s business interests were furthered by Cicero’s influence. We do not know what his relations with Caesar were, although it may have had something to do with Caesar’s confiscation of the totality of Pompey’s goods, including, therefore, the money Pompey had invested through Cluvius. Cicero was amply rewarded for his recommendation(s?). Cluvius inheritance was worth millions of sesterces. M’ Curius was a negotiator in Patrae. His most important patron was Atticus. Atticus recommended him to Cicero and the latter stayed with him on his return journey from Cilicia in 50. Contrary to what has been asserted by some scholars, Curius had no previous relations with Cicero.1017 Curius seized the occasion to initiate an amicitia with Cicero, rewriting his will in the presence of Cicero and his brother. In the new will, Atticus and Cicero were instituted heirs to small portions of Curius’ inheritance. Curius entrusted his new will to Cicero as a pledge for his sincerity and loyalty.1018 The hospitality which Curius offered to Cicero and his new will marked the start of a very advantageous connection for Curius. Cicero wrote several letters of recommendation for his new found friend to the successive governors of Achaea. In a letter written to Cicero a few years later, Curius extols his relationship with Cicero: ‘whatever we are, whatever we have, whatever regard we enjoy, we have it all through you’.1019 Business backgrounds on a lower level can be discerned in the case of Cyrus who had been Cicero’s favourite architect for years and who left Cicero (and Clodius) a share of his inheritance in 52.1020 Alexio, who had been Cicero’s doctor, seems to have left him a share in 44.1021 Given the

1016

CICERO, Fam. XIII, 56. Carcopino inferred from CICERO, Fam. XIII, 17 (a letter of recommendation for Curius written by Cicero invoking their amicitia peruetus) that Cicero had been Curius’s ‘conseiller juridique’ for years (CARCOPINO (1947) I, p. 179-180; followed by DENIAUX (1993a), p. 487-489 and DAVID (1992), p. 139-140; cf. also HATZFELD (1919), p. 252). CICERO, Att. VII, 2, 3 shows that Atticus had introduced Curius to Cicero. The case should warn us against taking the claims of amicitia in the letters of recommendation too seriously (compare the case of Salvatore in BOISSAEIN (1969), p. 381 and BOISSEVAIN (1974), p. 150-151). 1018 CICERO, Att. VII, 2, 3. Cf. supra on the ‘exact’ shares. The ‘pledge’ was mainly symbolic since Curius could at any time write a new will annulling the existing one. 1019 CICERO, Fam. VII, 29, 1: at illa nostra praedicatio quanti est, nos quod simus, quod habeamus, quod homines existimemur, id omne abs te habere. 1020 CICERO, Mil. 46-48. On Cicero’s relation with Cyrus see Att. II, 3, 2; Q. fr. II, 2, 2. 1021 CICERO, Att. XV, 1, 1; 2, 4; 3, 2. 1017

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professional nature of both men’s services, we can be fairly certain that both Cyrus and Alexio had been paid for these . In one case, a business friendship led to the patron leaving a share to his amicus minor. After her first husband Fulcinius had died, Caesennia relied on Sex. Aebutius to handle all important business affairs. Cicero emphasised that Aebutius was wholly unrelated to Caesennia and was nothing more than a uoluntarius amicus. Caesennia appointed Aebutius heir for 1/72, thus sealing a long-standing business friendship in the course of which Aebutius had provided services to Caesennia as procurator.1022 The case of M’ Curius shows that leaving a share or a legacy in a will could be much more than a last reward in exchange for favours received. Curius consciously used his will as a strategic weapon to extend and strengthen his personal network. He was not alone in developing this strategy. According to Cicero, Sassia effectively bound her stepson C. Oppianicus to herself by both marrying him to her daughter and leaving him a large share of her fortune.1023 It is clear that testaments fitted (along with Donations, loans and so forth) in the general strategies developed by testators to optimise their political and social position. The advantage of being appointed heir or legatee in a will was not necessarily of a material nature. The number of wills in which a person was mentioned was a measure of his social and political position. It reflected the gratia he (or she) commanded and so contributed to his (or her) symbolic social and political capital. Consequently, even a very small share or an honorary appointment could efficiently gratify the appointed heir or legatee. Curius efficiently obliged Cicero to himself by leaving him only a small part of his inheritance.1024 An unknown supporter of Antony tried to do the same in 44. Atticus was asked as a witness to make sure Cicero knew that he was genuinely mentioned in the will. Cicero saw through the manoeuvre but was embarrassed nevertheless: ‘(how) could I not praise those very persons who employed you as a witness’1025

1022

CICERO, Caec. 17. CICERO, Clu. 179: ut eum nuptiis adligatum simul et testamenti spe deuinctum posset habere in potestate. Cf. MOREAU (1983) on Sassia’s marriage with St. Oppianicus. On Sassia’s influence see also DIXON (1983), p. 99. 1024 Literally ‘one fortieth’, but cf. supra p. 195 on the case. 1025 CICERO, Att. XIV, 14, 5: poterone eos ipsos non laudare qui te obsignatorem adhibuerunt? 1023

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The case of Antony’s supporter may throw some light on a peculiar incident related by Valerius Maximus. Valerius ‘Heptachordus’ – who almost certainly should be identified as L. Valerius Flaccus (pr. 63) – is said to have appointed Cornelius Balbus as sole heir. Both men had been enemies for many years and Balbus had been involved in the prosecution of Valerius for a capital crime (most likely the trial de repetundis he had to face after his governership of Asia). According to Valerius Maximus, Flaccus’s lust for danger and adventure had induced him to honour the very person who had most dangerously assaulted his reputation. The assertion is not very convincing. Perhaps, either Balbus had forged Flaccus’s will or Flaccus had later in his life felt the need to attach Balbus securely to him and his family. 1026 However, the potential of gratification through testaments went beyond the immediate interests of the testator himself. The fact that the forgers of Minucius Basilus’s will wrote the names of Crassus and Hortensius as co-heirs indicates that the institution of powerful heirs could be an effective way to insure that a will would be respected.1027 The appointment of politically powerful or influential persons as heirs and legatees could, therefore, be a way to secure the inheritance for the main heirs. Tacitus explicitly cites this motivation to explain the large legacies left by Annaeus Mela to Nero’s favourites Tigellinus and Cossutianus Capito.1028 It was probably for this reason as well that Babullius left one-twelfth of his fortune to Caesar and one-third to Paconius Lepta, since Lepta feared that he would not be allowed by Caesar to keep his share.1029 It may also have been the real reason behind the institution as heir that Antony enjoyed in the wills of complete strangers, although naturally the state of our sources can neither validate nor contradict this hypothesis.1030 Testaments offered a way to transfer personal obligations due to the testator to his first heirs, usually his children. The testator could thereby hope to bequeath to his heirs as much as possible of the personal network he had built up through the years.1031 Shares and legacies to amici thereby

1026

VALERIUS MAXIMUS VII, 8, 7; Schol. Bobb., p. 33 (ed. Hildebrandt (Teubner)). See also DAVID (1992), p. 140-142 for another explanation. 1027 CICERO, Off. III, 73; VALERIUS MAXIMUS IX, 4, 1. 1028 TACITUS, Ann. XVI, 17. 1029 CICERO, Att. XIII, 48, 1. 1030 CICERO, Phil. II, 40-41; 62; 73. 1031 Cf. for a similar use of last wills in 18th century colonial Buenos Aires MOUTOUKIAS (1992), p. 907-910.

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functioned as a means of transfering gratia owed from one generation to the next. This function manifests itself most clearly in the tutelae testamentariae. Thus we see how the testator T. Pinnius transferred his amicitia with Cicero to his son by honouring Cicero through an appointment as heir in the second degree and tutor of young Pinnius. He thereby placed Cicero under an obligation that the latter could only fulfil by supporting Pinnius’s son, which in fact we see happening when Cicero recommended the boy’s interests to the governor of Bithynia-Pontus.1032 We can see the system in operation even in some cases when no tutela was involved. Thus when Cicero wrote a letter of recommendation for his co-heir Nostius Zoilus, we may infer that the latter had inherited his patron’s amicitia with Cicero.1033 Conversely, the Digest shows that first heirs could be entrusted with the care of the testator’s amici. Although the perspective is different, the object is the same: to perpetuate the testator’s personal network.1034 The strategic character of testaments explains why a Roman testator usually wrote several wills in the course of his life, without being forced to do so because of the birth or death of children. In his oration for Archias, who was accused of having usurped Roman citizenship, Cicero defended his client by pointing out the numerous wills he had made according to Roman law.1035 Moreau notes that testators often changed their wills on their deathbed.1036 In a letter mentioning the death of C. Fannius, Pliny deplored the fact that Fannius had died leaving only an old will, in which the persons with whom he was most intimate at the time of his death were not mentioned.1037 Sometimes the inevitable haste with which a dying person tried to make his ultimate last will caused accidental omissions or worse. Cicero assured his brother that a certain Felix had tried to change his will on his deathbed in order to leave them one-twelfth of the inheritance, but had mistakenly resealed the old will instead of the new.1038 Hopkins strongly emphasises the strategic possibilities of wills to cement personal alliances: ‘repeated gifts of legacies across kin boundaries

1032

CICERO, Fam. XIII, 61. See supra p. 204 for the case. CICERO, Fam. XIII, 46. 1034 Cf. Dig. XXXIII, 1, 19, 1. See MICHEL (1962), p. 562. 1035 CICERO, Arch. 11. See also MARTIAL V, 39. 1036 MOREAU (1986), p. 181. See TRACY (1980), p. 399. 1037 PLINY, Epist. V, 5, 2. 1038 CICERO, Q. fr. III, 9, 8. 1033

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must have created an elaborate network of social obligations, operating inside and between generations.’1039 Testaments helped to sustain and recreate networks of personal loyalty, trust and solidarity. As such, they helped to create political, social and economic security outside the restricted family circle. The officia testamentaria thus played an important role in the personal networks of friends and family. They increased cohesion within the network and contributed to the perpetuation of network-configurations from one generation to the next. b) Ostentatio.

Obviously, when a testator wanted to use his testament as a means to consolidate his personal network in his own lifetime, the contents of the will could not be kept secret. The presence of witnesses could serve this purpose, as in the case of the unknown supporter of Antony who invited Atticus to witness his will, in which Cicero was heir for a small share. There was, however, another reason why a testator could prefer to keep the contents of his will secret. Making a proper will was the duty of any homo liberalis. In his will, a testator displayed himself as he wanted to be seen. Popular belief claimed that a testament was like a mirror reflecting the true character of a person. Consequently, a testator could use his testament to enhance his social status by displaying his liberalitas. A person’s testament served as a symbolic platform on which the honour of the testator and his friends and family were displayed. 1040 When Terentia spread suspicious rumours about Cicero’s will because she had not been invited as witness, Cicero’s replied by saying that anyone who wished was free to read his will, while Terentia herself had only invited witnesses whom she knew would tell only what she wanted to be known.1041 Moreover, a testament allowed a person to continue his social display after his death, not only through the legacies and shares he distributed to his amici, but also through acts of euergetism that he commissioned to his heirs.1042 The interest of the public in the contents of wills was enormous.

1039

HOPKINS (1983), p. 246-247. See also CHAMPLIN (1991), p. 21-27. PLINY, Epist. VIII, 18, 1. On last wills as public manifests see also GAIUS II, 181; Dig. XXXVII, 11, 1, 4; MARTIAL XII, 73; HORACE, Serm. II, 5, 51-57; CHAMPLIN (1989b); CHAMPLIN (1991), p. 24; MOREAU (1986), p. 182; VEYNE (1978), p. 36. 1041 CICERO, Att. XII, 18a, 2; XIII, 25, 2. On Terentia’s own will: Att. XI, 16, 5; 25, 3. 23, 1; 21, 1; 22, 2; XII, 18a, 2; 19, 4; 20, 2; 28, 1. 1042 DUNCAN-JONES (1982), p. 64. 1040

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The testator knew before he died that he would be the centre of attention and that the contents of his will would determine the way in which he would be remembered. Thus a person’s last will was a monument in itself, erected by the testator so that he would be remembered in a particularly splendid way. 1.22 Excursus 1) Women as heirs. The lex Voconia forbade women to be the heirs of citizens belonging to the prima classis and stipulated that a legacy could never exceed the shares left to the heirs, which implied that, for instance, an only daughter could never receive more than half of her father’s inheritance. Later, Roman jurists extended the application of the lex Voconia to inheritances ab intestato (ratio uoconiana).1043 The lex Voconia, which was probably intended to bar women from attaining any position of influence1044, was very unpopular. The law was considered to be savagely unfair towards daughters and at a very early date, ways were developed to evade it. The legatum partitionis offered some solution by creating a pseudo-share of 50% minus a symbolic sum (normally of 100 nummi) which was formally a legacy of a specified part of the inheritance. Debts and claims were divided by stipulationes between heirs and legatees; The former promised to give a share of the debts owing to the testator that they collected to the legatees, the latter promised to pay a share of the debts owed by the testator to the heirs.1045 But the legatum partitionis still required that men were appointed as heirs and the sum of their shares had be at least as big as the biggest legacy. When a man had only daughters or granddaughters, he was forced to appoint an outsider as heir. The only way out was offered by the fideicommissum, by which the formal heir was explicitly asked to hand over the inheritance (or part of it) to another party, in this case a daughter or granddaughter. The inheritance was thus entrusted to the fides of the heir. Fideicommissa were not bound by any of the formal rules or legal limitations that applied to testaments, but until the time of Augustus they

1043

cf. ROTONDI (1962), p. 283-284; WESEL (1964); WATSON (1971), p. 29-30, 35, 167-170; SALLER (1994), p. 166-167; BERGER (1953), p. 561; CROOK (1986); DIXON (1984), p. 361, 367. 1044 Cf. GELLIUS XVII,6,1. 1045 WATSON (1971), p. 128-132.

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were wholly unenforceable so that the testator had to rely on the fides of the formal heir.1046 Cicero had received a fideicommissum in favour of Publilia. He fulfilled the fideicommissum but married the girl for her dowry.1047 However, fideicommissa were risky. Despite strong social pressure, fides-obligations were legally unenforceable. Cicero relates the story of Q. Fadius Gallus, who wished to leave his fortune to his only daughter through a fideicommissum to P. Sextilius Rufus. When Gallus had died, Sextilius convened a meeting with his amici and asked them what he should do. Since he had sworn an oath to uphold the Voconian law, he was afraid to carry out Gallus’s last wish unless his friends advised him otherwise. Sextilius had chosen his friends well. They advised that the girl should receive only as much as would have been allowed under the lex Voconia. The maximum legacy Fadia could receive was half the inheritance minus a symbolic sum of 100 nummi, which is what Sextilius paid her. Cicero – who was present as a young man – was scandalised, but many among Sextilius’s amici were members of the highest nobility and none of them thought Fadia should be given more.1048 Given the social and political position of Sextilius’s councillors we can safely conclude that at least an important part of the nobility still supported the Voconian law in the early first century BCE. A man who wished to disregard a fideicommissum entrusted to him could easily get away with it. The Roman law of the Late Republic was not favourable to fideicommissa in general, since they were manifest evasions of legal prohibitions. The knight P. Trebonius inserted a clause in his will demanding that his heirs swear an oath to give half of what they received to his brother A. Trebonius, who had been proscribed by Sulla and had thereby lost his right to inherit. Only one of the heirs, a freedman of P. Trebonius, took the oath. The other heirs appealed to the praetor Verres, claiming that the condition imposed was against the law. Not only did Verres agree and grant them possession of the inheritance without the oath, but he excluded the freedman from the inheritance on the grounds that he had broken Sulla’s law on proscribed persons.1049

1046 See CROOK (1986); WATSON (1971), p. 35-39; VAN OVEN (1948), p. 548-554; SALLER (1994), p. 166-174; . 1047 PLUTARCH, Cic. 41, 4. 1048 CICERO, Fin. II, 55. See WATSON (1971), p. 36. 1049 CICERO, 2 Verr.I, 123-124. See WATSON (1971), p. 37-38; FABRE (1981), p. 278.

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The very fact that fideicommissa were common despite the fact that they were legally unenforceable illustrates the social importance of fides. To entrust a man a fideicommissum was the ultimate expression of trust, to fulfil it the ultimate expression of loyalty. At the same time, the origin and the evolution of fideicommissa show that the legal limitations on testaments were not always in accordance with public opinion. Fideicommissa clearly show the strength and depth of the informal rules and norms regulating the making of wills. Testators preferred the risk that their last wishes be ignored to dying intestate and leaving their property ab intestato, safely in the hands of their daughters but at the same time imposing on them the strict regime of a tutela legitima and not gratifying any of their friends and relatives. 1.23 Excursus 2) Testamentary adoptions. There is still a lot of disagreement about testamentary adoption and the end of the debate is not nearly in sight. 1050 There is not a single juridical source available informing us on this type of adoption. In fact, the practice is totally incompatible with what we know of the procedure of legal adoptions per adrogationem.1051 Nonlegal sources on the other hand clearly indicate that testamentary adoptions were quite common in the Late Republic and Early Empire.1052 Those who do not believe in the authenticity of testamentary adoption, interpret the known cases of such adoptions as instances of condiciones nominis ferendi, whereby a testator instituted a person as his heir on the condition that he changed his name to that of the testator. Condiciones nominis ferendi were quite common and we have several examples of people changing their names in order to inherit. Until recently, the debate has focused on the case of Octavian’s adoption in Caesar’s will, which was validated by a special lex curiata, but the case is clearly exceptional and, therefore, inconclusive.1053 However, Salomies has shown that a small number of sons known to have been

1050

On testamentary adoption cf. SHACKLETON BAILEY (1976), p. 92-99; SALOMIES (1992), p. 7-10; CHAMPLIN (1991), p. 144-146. On adoptions as family strategy in general see also CORBIER (1991), p. 63-76. 1051 See WATSON (1967), p. 88-90. 1052 For a list of all adoptions attested in the Late Republic see SHACKLETON BAILEY (1976). 1053 See SCHMITTHENER (1952), p. 44-48; SHACKLETON BAILEY (1976), p. 93-95.

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adopted by will not only assumed the name of the testator, but also changed their filiation and tribe. Both were the official parts of a person’s name that could not be changed by a private decision.1054 The solution may lie hidden behind the later imperial prerogative to validate adoptions that were legally void. The Republican censors had the right to change a person’s tribe.1055 Did they also have the right to change his filiation, i.e. his agnatio? Whatever the regularity of the lex curiata that sanctioned Octavian’s adoption by Caesar, the case does show that the comitia curiata had the authority to do so. The possibility that it did so on more than one occasion, cannot, therefore, be excluded In the absence of further documentation, however, both possibilities cannot be more than speculative hypotheses. Nevertheless, testamentary adoption was clearly accepted socially as a legitimate way to produce a ‘son’ who could be first heir and continue the name and family cult. As such, they had their place in the strategy of testators trying to perpetuate their social rank, fame and fortune.1056 Syme notes that testamentary adoption usually had recourse to close relatives, as in the case of Atticus and Rabirius Postumus, who were both adopted by their maternal uncles.1057 It seems, therefore, that the procedure was mainly a way to consolidate and rearrange family relations.

1054 Note, however, that Cornelius Balbus was adopted inter uiuos by Cn. Pompeius Theophanes, while the fasti consulares mention him as L. Cornelius L. f. Balbus (CICERO, Balb. 57; cf. SHACKLETON BAILEY (1976), p. 111; BROUGHTON (1951-1986) II, p. 374). 1055 See LIVY XL, 51, 9. 1056 See TAYLOR (1949), p. 34-35. 1057 SYME (1980), p. 428-430. On Postumus’s adoption see SHACKLETON BAILEY (1976), p. 33-34, 127. On Atticus cf. supra p. 189-190.

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Part III. The organisation and pursuit of economic activities.

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In the second part of the book, I focused on the influence of amicitia on the allocation of resources through the ethics of gift-exchange, financial support and testamentary habits. We have established that amicitia served as an important alternative passageway for the flow of scarce resources, but also that it influenced the allocation of resources through markets considerably and that its effects far exceeded the ‘informal’ sector of the economy. Solidarity networks of amici provided security against setbacks and crises and thus helped to support the financial system at large. The third and last part the book deals with the organisation of economic activities in the broadest sense of the word. Economic action is purposeful action directed towards the acquisition or enlargement of want satisfying scarce resources. Purposeful action is usually also organised action and in the case of complex or important purposes this organisation usually comprises several actors. The mode of organisation used, however, varies considerably. As we already showed in our introduction, the paradigm of the modern ‘corporate firm’ has only a limited scope in pre-industrial economies. I analyse here the use (and utility) of ‘friends’ to organise economic action, focusing first on the concepts of agency and partnership as overt forms of organisation and then turning to the use of influence as a covert form of organisation.

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PROCURATIO, MANDATUM AND NEGOTIORUM GESTIO.

The first chapter of this third part is devoted to one of the most difficult problems of Roman law: agency by independent persons. Only two actiones are known to have covered these arrangements, the actio mandati and the actio negotiorum gestorum, but our sources mention three types of agents: the mandatarius, the procurator and the negotiorum gestor. I try to show that mandatum never lost its character of officium amicitiae becoming reduced to a mere formal contract. I further argue that the original procurator was a friend or kinsman and that amici continued to act as each other’s main procuratores even though freedmen as well often continued to serve their former masters as minor procuratores. After that, I deal with the basic principle of indirect representation, which was never abandoned in Roman law. Contrary to common opinion, I argue that the arrangement was not necessarily disadvantageous to Roman businessmen. Finally, we will try to assess the possible economic scope of friends as agents. 1.1 Legal framework. 1058

a) Mandatum.

According to the ancient grammarians, the word mandatum was etymologically derived from manum-dare. Isidorus from Sevilla concluded that a mandatum was originally concluded by a handshake.1059 There is little reason to doubt the etymology as such, but its interpretation is ambiguous. Nothing indicates that the manus-as-hand lay any more or any less at the etymological origin of the term mandatum as of so many other important legal concepts in which the notion manus occurs, such as

1058 On mandatum as a contract see WATSON (1961); WATSON (1965), p. 147-156; ARANGIORUIZ (1949); MICHEL (1962), p. 168-197; AUBERT (1994), p. 105-110; ANGELINI (1971), p. 90-91; KLAMI (1989). 1059 ISIDORUS, Orig. V, 24, 20. See MICHEL (1962), p. 170-171; FREYBURGER (1986), p. 165 (p. 136-138 on the symbolic value of a handshake); ERNOUT & MEILLET (1951), p. 681, art. mando.

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manumissio, or mancipatio, or the marriage cum manu. Hypothetically, it is perfectly possible that a handshake accompanied acts involving manus, but, if this was so, it represented only the outward form of the agreement. The hand symbolised the almost religious concept of manus that expressed ‘power over’. So manum-dare could mean as much as ‘to give into the power/hands of someone’ or (alternatively) ‘to empower someone’. The original mandatum was much older than the legally enforceable contract mandatum. The oldest attestation of mandatum as a contract dates from the year 123 BCE. Since the actio mandati belonged to praetorian law, the legal recognition of mandatum as a contract cannot be much older that the middle of the second century BCE.1060 Nevertheless, mandata are quite common in Plautus, long before mandatum was recognised as a contract and, even later the term was frequently used in a nonlegal sense.1061 Mandatum was an informal consensual contract. Watson and Arangio-Ruiz believe that not even an ‘intention to contract’ was required for the actio mandati to be applicable and that the contract was held to exist even without the parties’ intention to enter into contract. The issue is important because it would indicate that the contract of mandatum could arise through the a posteriori interpretation of informal (but highly moralised) social interaction, without there being any need for a specific agreement with contractual intents and consequences ex ante. A necessary condition for the validity of a mandatum was that it was free. Once remuneration in any form was agreed upon, the service fell under the contract of hired labour (locatio conductio (operis / operarum)). The jurists interpreted the gratuitas-rule so strictly that the mandatory was not even allowed to benefit indirectly from the services he provided, for instance, in the case of a mandate for buying goods of which he was co-owner. Interestingly, however, we see that in the Early Empire the imperial justice system (the cognitio extra ordinem) gradually recognised salaria or honoraria for mandatories, without the jurists ever giving up the principle that a mandatum had to be free.1062

1060

Rhet. Her. II, 19. WATSON (1965), p. 147. Cf. e.g. PLAUTUS, Asin. 118-121; Epid. 130-132; CICERO, Att. IV, 6, 3; V, 2, 1; VI, 1, 12; 22. See WATSON (1961), p. 11-12. 1062 MICHEL (1962), p. 168-197; WATSON (1961), p. 102-105; VAN OVEN (1948), p. 291; KASER (1955) I, p. 482; GIRARD (1911), p. 584. See Dig. XVII, 1, 1, 4; 1, 35-36; XIX, 5, 13pr.; 5, 14; 5, 22; JUSTINIAN, Inst. III, 26, 13; GAIUS III, 162. The gratuitas-rule is implied in CICERO, Rosc. Am. 111. 1061

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Roman law did not recognise the principle of direct representation between free persons.1063 Mandatum created obligations between the mandator and the mandatory, but not between the mandator and any third party with whom his agent (the mandatory) had done business in his name. In case of dispute, the mandatory was personally liable for the contracts he had made. He could use the actio mandati, however, against the mandator to get redress. Conversely, only the mandatory could sue the third party with whom he had entered into a contract in the mandator's name, while the mandator could use the actio mandati against the mandatory to receive all the benefits of the contracts made in his name. Watson summarised the situation aptly when he wrote: 'Usually the object of mandate is that the agent should enter into contractual relations with a third party on behalf of the principal.1064 As we will see later, the binding element in mandatum was fides and this was recognised in law by the fact that the actio mandati was a iudicium bonae fidei. Condemnation brought official infamia or social degradation upon the defaulting mandator or mandatarius,1065 it was considered one of the severest punishments possible in private litigation. An infamus was not allowed to be someone’s representative in court (cognitor, procurator ad litem), or to be represented in court.1066 Moreover, according to Cicero, the principal and his agent were not only liable for fraud (dolus) but also for negligence (negligentia).1067 b) Negotiorum gestio.

The actio negotiorum gestorum was a residuary actio with a very wide scope in cases of agency. Berger states that ‘the essential circumstance was that the gestor acted without a mandate’.1068 The actio applied not only to the actual negotiorum gestor, who acted without knowledge of his

1063 1064

On direct representation by institores and magistri naues cf. supra p. 25-29. WATSON (1961), p. 78 (see also ibid. p. 78-84); VAN OVEN (1948), p. 292; NÖRR (1990-

1992). 1065

CICERO, Off. III, 70; N. D. III, 74; Top. 42; 66. See NÖRR (1990-1992), p. 303. GAIUS IV, 182. 1067 CICERO, Rosc. Am. 111-112. Modern scholars disagree on whether Cicero is to be believed. See WATSON (1961), p. 195-216. Contra KASER (1955) I, p. 423-424; VAN OVEN (1948), p. 378382. 1068 BERGER (1953), p. 594. See also SEILER (1986), p. 247-248. On the actio negotiorum gestorum in general see ARANGIO-RUIZ (1949), p. 19-43; WATSON (1965), p. 193-207; VAN OVEN (1948), p. 371-374; KASER (1955) I, p. 489-492; 19JOLOWICZ (1939), p. 312-313; AUBERT (1994), p. 110-112. 1066

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principal, but also to the procurator omnium rerum, the curator and later even to the institor.1069 Accordingly, Ulpianus claimed that the possibility of an actio negotiorum gestorum lapsed when a general mandatum ad negotia gerenda was given.1070 Conversely, Papinianus claimed that an actio negotiorum gestorum was possible when an actio mandati was for any reason not possible.1071 The actio negotiorum gestorum was likewise a iudicium bonae fidei but, contrary to the actio mandati, defaulting did not entail infamia. A necessary precondition for the actio negotiorum gestorum was that the agent acted exclusively to the advantage of the principal. If he derived any personal advantage from his gestio, the possibility of an actio negotiorum gestorum lapsed.1072 The implication is that the services provided had to be free of charge.1073 c) Procuratio.

The term procurare and its derivations procuratio and procurator – like the terms mandare and mandatum – had a large extra-legal application. A procurator could be anyone who took care of anyone or anything not belonging to him. Cicero and others frequently use the terms procuratio (or variants) to denote political responsibilities or to describe the care of the gods over the affairs of humans.1074 By far most attestations of the term procurator denote anyone who takes care (procurare) of the affairs of others, regardless of whether these affairs are economic, social, political or religious. Long ago, Schlossman concluded that procuratio was at all times merely a social institution and never a legal concept, but this thesis has long been abandoned.1075 From a legal point of view, however, the historical development of procuratio is hard to follow. There was certainly never any kind of an actio procurationis. But then where does procuratio fit in? Which actio(nes) sanctioned the actions of procuratores ?

1069

WATSON (1965), p. 193. Dig. XVII, 1, 6, 1 1071 Dig. III, 5, 31, 1: quia mandati uel depositi cessat actio, negiotum gestorum agitur. 1072 Cf. WATSON (1965), p. 201-203; ARANGIO-RUIZ (1949), p. 19-23; VAN OVEN (1948), p. 373-374. 1073 AUBERT (1994), p. 110-111. 1074 CF. BEHRENDS (1971), p. 224-225. See e.g. CICERO, Diu. 2, 7; Off. I, 185 (procuratio rei publicae). 1075 S. SCHLOSSMAN, Der Besitzerwerb durch Dritte nach römischem und heutigem Recht. Ein Beitrag zur Lehre von der Stellvertretung, Leipzig, 1881. See BEHRENDS (1971), p. 215-217. For a status quaestionis see ANGELINI (1971), p. 1-16. 1070

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We find two types of procuratores in our sources, on the one hand procuratores acting under a general mandatum ad negotio gerenda, on the other hand, procuratores (omnium rerum) who fell under the application of the actio negotiorum gestorum. In the end only the procurator cui mandatum est – acting under a general mandate – survived until the time of Justinian and the compilation of the Digest, with a (potential) medley of interpolations as a result.1076 (i) Procurator mandatarius.

The relation between mandatum and procuratio is one of the most difficult problems in the history of Roman law. Until recently, it was commonly held that a legal mandate could originally only be given for specific actions, for example, to buy or to sell specified goods. All references to general mandates in the Digest were rejected as interpolations. Consequently, procuratores could not work under a general mandate until at least the Early Empire. A date ante quem for the procurator mandatarius is provided by Gaius’s Institutiones, which clearly mention the procurator cui mandatum est.1077 Arangio-Ruiz and Watson concluded that general mandates developed gradually until they finally received legal recognition in the time of Julianus and Gaius.1078 However, some scholars, the first of whom was Solazzi, never accepted the common rejection of the authenticity of early general mandates. Solazzi’s thesis had few followers until Behrends and Angelini restated it in the early seventies. Both scholars, along with Solazzi, hold that general mandates ad negotia gerenda were legally possible from the very beginning of mandatum as a contract and that, consequently, the procurator cui mandatum est existed since the middle of the second century BCE.1079 The heart of the problem is that there are virtually no reliable legal sources informing us of the nature of Republican procuratio. All fragments

1076

On the relation between mandatum and procurator see WATSON (1961), p. 36-60; ANGELINI (1971), p. 87-111. 1077 GAIUS IV, 84. See also GAIUS III, 155 for a general mandate ut mea negotia geras. SERRAO (1947), p. 155-160 tried to argue that this passage too was a later interpolation. However, see contra ANGELINI (1971), p. 104-105; ARANGIO-RUIZ (1949), p. 55-57. Note, however, that the procurator in question was a procurator ad litem, appointed to represent his principal in court. 1078 ARANGIO-RUIZ (1949), p. 44-78; WATSON (1961), p. 36-60. 1079 SOLAZZI (1922); ANGELINI (1971), p. 87-121 (see p. 1-15 for a status quaestionis); BEHRENDS (1971), passim (esp. 215-216, 219-225, 247-274.

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of pre-classical and classical jurists on procuratio in the Digest are believed to be thoroughly corrupted by interpolations. There are, however, a multitude of non-legal texts from the Republic and Early Empire that link mandatum and procuratio. These texts fall into two categories. The first category comprises those indicating that mandates could be entrusted to procuratores. Thus Cicero claims that the procurator of an estate received mandata, whereas the bailiff (uilicus) carried out orders.1080 This category of texts is not very conclusive. The fact that a procurator carried out specific mandates merely reflects his position as a free man and his relation of fides with his principal. It does not imply that his position as procurator depended on a general mandate ad negotia gerenda. However, another category of texts appears to indicate that general mandates existed and that those who received such mandates were thereby automatically a person’s procuratores. As early as Plautus, i.e. before mandatum had received any legal recognition, we find a general mandatum rerum.1081 Cornelius Nepos refers to a mandatum ut tuearis that he explicitly links with a procuratio omnium negotiorum.1082 Seneca mentions a mandatum curae patrimonii.1083 Mescinius Rufus sent procuratores with a mandate to Greece to arrange the acceptance of the inheritance left by his brother M. Mindius, which had been disputed by Mindius’s widow, Oppia.1084 Traditionally the mandata mentioned in these texts are considered extra-legal mandates, making the texts irrelevant for the legal development of procuratio. This is obviously true for the passage in Plautus since mandatum as a contract did not yet exist at this time, but it is not so easy to maintain for the other texts.1085

1080

CICERO, De orat. I, 249: si qui fundus inspiciendus aut si mandandum aliquid procuratori de agri cultura aut imperandum uilico est … See also CICERO, Fam. VIII, 9, 3; Ovid, Ars Am. I, 587-588. 1081 PLAUTUS, Cist. 719. See also Trin. 78. 1082 NEPOS, Att. 15, 3: in tuendo … tanta erat cura, ut non mandatum, sed suam rem uideretur agere … Quo fiebat ut omnia Ciceronum, M. Catonis, Q. Hortensii, Auli Torquati, multorum praeterea equitum Romanorum negotia procuraret. Ex quo iudicari poterat non inertia, sed iudicio fugisse rei publicae procurationis. 1083 SENECA, Ben. IV, 27, 5 1084 CICERO, Fam. XIII, 26. Mindius or Mescinius was adopted, they remained brothers by blood (see SHACKLETON BAILEY (1977b). On the case, see also COTTON (1978). 1085 On the Seneca passage see WATSON (1961), p. 50-51; ARANGIO-RUIZ (1949), p. 20-21.

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Angelini’s key argument to support the authenticity of early general mandates and of the procurator mandatarius relies on a passage in the Digest in which Ulpianus quotes the Augustan jurist Labeo. The passage indicates that Labeo discussed procuratio under the heading of the iudicium mandati, in other words that he thought the actio mandati applied to at least some cases of procuratio.1086 It is hazardous for a non-jurist, not versed in the intricacies of interpolation, to take sides in a debate in which much depends on legal technicalities and on the way in which interpolations are recognised and restored. Nevertheless, the model of Solazzi, Angelini and Behrends model is clearly best in line with the evidence of non-legal sources. The alternative would be to reject all these texts as irrelevant because the mandates they mention might not be legal mandata. In the end, however, this amounts to accepting all evidence in favour of a certain thesis while rejecting all the evidence against it. This is a methodologically risky procedure requiring strong persuasive arguments, which in my judgement are lacking. Consequently, I believe that the existence of the procurator mandatarius should be accepted as early as the second century BCE. (ii) Procurator praepositus

However, procuratio cannot be wholly reduced to mandatum. Some of the most common powers of procuratores could certainly not be the subject of mandatum. Thus procuratores had the right to sue in the name of their principal. When they accepted payment of money owed to their principal, the debt was automatically extinguished, whereas in the case of a mandatum the debt legally remained until the mandatarius had handed the money over to his principal. Procuratores could make valid and binding debt-renewals (nouationes) in the name of their principals. By the Flavian period at least (but perhaps much earlier) a principal could acquire property directly through his procurator. Unlike mandatories, procuratores had to keep accounts of their actions.1087 In his Topica, Cicero expressly distinguished mandatum from procuratio, while numerous passages in legal sources show that quite often the actio negotiorum gestorum rather than the actio mandati sanctioned procuratio.1088

1086

ANGELINI (1971), p. 101-102; 109-111; Dig. XVII, 1, 10, 8-10. BEHRENDS (1971), p. 274-297; ANGELINI (1971), p. 122-154; KASER (1974), p. 192-202; WATSON (1961), p. 7-9. 1088 CICERO, Top. 42; 66. See ARANGIO-RUIZ (1949), p. 19-20. 1087

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The existence of a second type of procurator may be deduced from a famous passage in Cicero’s Pro Caecina, in which Cicero comments on the interdictum unde ui. According to Cicero, the term procurator in the interdict applied to any free person who committed violence in someone else’s name and not only to the one ‘who is called procurator in a legal sense (qui legitime procurator dicitur)’. The latter is described as a procurator ‘of all goods of one who is not in Italy or who is absent on state affairs; one who is almost a master, that is a proxy in another’s rights (alieni iuris uicarius).’ The term of procurator in the interdict should then apply also to, for example, tenants, neighbours, clients or freedmen. ‘Not because every man who takes care of our affairs (qui negoti nostri aliquid gerant) is or is called a procurator’, but for equity’s sake.1089 The term legitime and the peculiar style of the fragment, reminiscent of the formal legal Latin used in laws, seem to indicate a legal statute regulating the powers of a procurator. This hypothesis was first formulated by Naber in 1889, but was rejected for many years until Behrends restated it strongly in 1971.1090 As we have seen, Behrends recognises the existence of the procurator cui mandatum est from the beginning of mandatum as a contract. Besides the procurator mandatarius he identifies a procurator omnium rerum whose legal existence probably went back to the third century. Like Naber, Behrends proposes a link with the lex Hostilia, which gave non-relatives the right to prosecute thieves on behalf of absent citizens without for that matter identifying the lex Hostilia as the missing ‘statutory law’ on procuratio. In Behrends’s view, both laws sprang from a common logic: to protect the rights and property of absent citizens, i.e. in the third century, mainly soldiers. This special and primary function of the procurator explains his special powers and duties. The basic principle was that the principal should only benefit from his procurator’s actions and not incur loss. Therefore,

1089

CICERO, Caec. 57: de liberis autem quisquis est, procuratoris nomine appelletur; non quo omnes sint aut appellentur procuratores qui negoti nostri aliquid gerant, sed in hac re cognita sententia interdicti uerba subtiliter exquiri omnia noluerunt. Non enim alia causa est aequitatis in uno seruo et in pluribus, non alia ratio iuris in hoc genere dumtaxat, utrum me tuus procurator deiecerit, is qui legitime procurator dicitur, omnium rerum eius qui in Italia non sit absitue rei publicae causa quasi quidam paene dominus, hoc est alieni iuris uicarius, an tuus colonus aut uicinus aut cliens aut libertus aut quiuis qui illam uim deiectionemque tuo rogatu aut tuo nomine fecerit. 1090 NABER (1889), p. 388-390; BEHRENDS (1971), p. 228-235. See also WATSON (1965), p. 194-195. Contra see SERRAO (1947), p. 11-12; ANGELINI (1971), p. 28-30.

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the procurator omnium rerum could accept payments and pay debts, but could not sell or otherwise alienate things belonging to his principal, with the exception of perishable goods. Thus the figure of the procurator omnium rerum was modelled on that of the tutor or curator furiosi. Like tutores and curatores, the procurator omnium rerum had the right to sue in legis actiones. According to Behrends, the appointment (praepositio) of a procurator omnium rerum took place through an informal commendatio rerum et famae and his actions were sanctioned by the actio negotiorum gestorum.1091 According to Behrends, the procurator omnium rerum existed until well into the imperial age, but at a very early stage the procurator mandatarius and the procurator omnium rerum grew closer. The procurator omnium rerum could only operate in Italy, while the Late Republican aristocracy and businessmen increasingly needed procuratores to supervise their holdings in the provinces. On the other hand, the increasing wealth of the elite in Italy, invested in dispersed properties throughout the peninsula, necessitated the continuous use of procuratores even when the owners were present in Italy. The praetor’s edictum perpetuum and its counterparts in the provinces provided a solution by extending the powers of the procurator omnium rerum to the procurator cui mandatum on the condition that the latter offered sureties for his actions. Thus the old procurator omnium rerum was gradually supplanted by the much more flexible procurator mandatarius. This process must have begun quite early, since we hear of provincial procuratores in Africa as early as the late second century BCE.1092 The evolution was greatly facilitated by the informal character of mandatum, which could turn any kind of appointment into a mandate if necessary. In the end the procurator omnium rerum lost its relevance, and the compilers of the Digest replaced all references to it by elaborate descriptions such as procurator cui generaliter libera administratio omnium rerum mandata est. (iii) Negotiorum gestio – procurator gestor.

The relation between procurator and negotiorum gestor is not very clear either. From a legal point of view, every procurator was certainly a

1091 On the powers of procuratores in general see ANGELINI (1971), p. 17-28, 41-49, 87-98; BEHRENDS (1971), p. 239, 280-282, 297; APATHY (1979). 1092 Mentioned in the epigraphically attested lex agraria of the Tabula Bembina, possibly a copy of the lex Thoria agraria from 111. See CRAWFORD (1996), p. 113-180; WATSON (1965), p. 196-197; BEHRENDS (1971), p. 220.

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negotiorum gestor for all acts not subject to the actio mandati, but was every negotiorum gestor by definition a procurator? Or, to put it differently, could someone be procurator without knowledge of his principal? In Cicero’s Brutus, the protagonist is described metaphorically as a uoluntarius procurator for Atticus, demanding the fulfilment of a promise made to his principal while Atticus himself had declared that he would not demand delivery as long as his debtor was not ready. Cicero (as a character in the book) answered Brutus that he would demand sureties that Atticus would make no further claims (satisdatio amplius non peti) in return.1093 Watson explains the passage as the oldest attestation of the procurator ad litem.1094 However, Cicero does not say that he would contest Brutus’s demand in court (litis contestatio) and the satisdatio itself does not imply a trial.1095 Several passages in the Digest also indicate the existence of procuratores who were not appointed, but who could nevertheless take legally valid decisions and actions, sanctioned by the actio negotiorum gestorum.1096 Angelini, therefore, distinguishes the procurator mandatarius, acting on the basis of a general mandate, from the procurator gestor acting without a mandate and being legally merely a negotiorum gestor. Only at the time of Justinian and the compilation of the Digest would the title of procurator have been reserved for agents with a general mandate, leading to the idea of the falsus procurator who ‘offered himself for the affairs of another’ (qui se alienis negotiis offert’. Kaser on the other hand, does not believe that every negotiorum gestor was automatically a procurator until well after the end of the classical period of Roman law. According to him, a procurator had to be appointed in some way – either by mandate or in some other way. Nevertheless, Kaser warns us to beware of forcing too strict a typology on Roman law. What mattered to a Roman jurist was not who or what a procurator was from a legal point of view, but which actions fell under the actio mandati or the actio negotiorum gestorum.1097 It is unlikely, therefore, that they would have cared much about the exact terminological distinction between procurator and negotiorum gestor. When we look at non-legal texts, we see that the figure of the negotiorum gestor is virtually

1093

CICERO, Brut. 17. WATSON (1965), p. 200-201. See contra ANGELINI (1971), p. 184-185. 1095 On satisdationes amplius non peti cf. infra p. 263. 1096 Cf. ANGELINI (1971), p. 154-165. 1097 KASER (1974), p. 187-191. 1094

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non-existent, whereas procuratores are omnipresent. In the light of the passage in Cicero’s Brutus, we may conclude that negotiorum gestores were commonly denoted by the term procurator and this habit may well have slipped into legal texts. 1.2 Mandatum, procuratio and amicitia. a) Fides and liberalitas.

Mandatum, negotiorum gestio and procuratio were all three alike based on fides: personal trust and loyalty between agent and principal. Legally, this is manifest in the bona fides character of the actio mandati and the actio negotiorum gestio. The kind of fides constituting the bond between agent and principal was far from being merely a juridical concept. Their mutual commitment surpassed the strict legal contractual liability of the partners. Both parties committed their fides in the sense of social credibility and thereby pledged their honour and social personality. A person who was found guilty of default in an actio mandati lost omnis honestas – ‘all honour and respectability’.1098 Procuratio constituted a position of trust based on fides, comparable, according to Cicero, to societas, mandatum or fiducia.1099 In other words, fides in contractual agency, although legally outlined, was not a different concept from the fides that expressed the intimate bond between partners in the informal diffuse relationship of amicitia. Being essentially free services, mandates and some procurationes were expressions of liberalitas. Cicero classified liberalitas in two categories, one comprising generosity – liberalitas through money – and one comprising services – liberalitas through personal effort.1100 Mandate and some procurationes clearly belong to the latter kind of liberalitas. According to Cornelius Nepos, Atticus was very meticulous in carrying out the mandates entrusted to him because he felt that promises that could not be fulfilled were not ‘liberal’ but frivolous.1101 b) Mandatum.

No contract was so emphatically and unambiguously associated with amicitia as mandatum. Paulus asserted: ‘there is no mandatum unless it

1098

Cf. CICERO, Rosc. Am. 111-115; NEPOS, Att. 15, 3. CICERO, Top. 42. 1100 CICERO, Off. II, 52-54 1101 NEPOS, Att. 15, 3. 1099

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is free, because it springs (originem trahit) from personal duty (officium) and friendship, and payment is opposed to duty (officium).’1102 The words originem trahit are mostly interpreted as indicating an historical evolution whereby mandate gradually evolved from a non-enforceable act of friendship (or other close personal relationship) to a formal contract.1103 However, it seems more likely, given the permanence of the necessarily free nature of mandatum, that Paulus referred to the social reality behind the contract of mandatum in his own time rather than to an historical development.1104 The crucial distinguishing feature of the contract of mandate, viz. that it had to be gratuitous, derived, according to Paulus, from the acceptance of a mandate as an officium amicitiae. Pleading in favour of this reading is that elsewhere Paulus explains commodatum in a similar way: although commodatum was essentially a beneficium of the lender to the borrower, legally enforceable obligations nevertheless arose.1105 According to Cicero, the reason why the actio mandati had dire consequences for those who were found guilty of default was that the mutual fides of friends (uicaria fides amicorum) was a necessary precondition for the mutual assistance without which life was not possible.1106 A person who broke a mandate sinned against two most sacred things: amicitia and fides. ‘Since no one gives a mandate, unless to a friend, and no one confides in another, unless he thinks that person is trustworthy (fidelem)’.1107 Indirectly, society at large was disturbed because a common protection for all (omnium commune praesidium) was affected. Therefore, if a man thought he could not bear the load of duty connected with a mandate, he ought not to accept it.1108 Cicero’s approach to mandatum as a contract along these lines is very similar to Paulus’s views.

1102

Dig. XVII, 1, 1, 4: mandatum nisi gratuitum nullum est: nam originem ex officio atque amicitia trahit, contrarium ergo est officio merces. 1103 MICHEL (1962), p. 185-186 (see p. 168-197 in general). KIRSCHENBAUM (1987), p. 193196. On mandatum and friendship see also NÖRR (1990-1992); BÜRGE (1999), p. 128-139.. 1104 See also in this sense BÜRGE (1999), p. 129. 1105 Dig. XIII, 6, 17, 3: Sicut autem uoluntatis et officii magis quam necessitatis est commodare, ita modum commodati finemque praescribere eius est qui beneficium tribuit. 1106 CICERO, Rosc. Am.111. 1107 CICERO, Rosc. Am.112: nam neque mandat quisquam fere, nisi amico; neque credit, nisi ei quem fidelem putat. 1108 CICERO, Rosc. Am.111-115.

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Both explain (and in Cicero’s case justify) the legal features of mandatum by referring to the social reality behind it. c) Procuratio.

The figure of the procurator has been much debated. It is obvious that different types of procuratores existed side by side in the Late Republic and Early Empire. We find both dependent freedmen and socially important amici operating as procuratores. We find procuratores entrusted with the management of a single farm and procuratores entrusted with the care of all a noble person’s patrimony next to procuratores ad litem commissioned with representing their principal in a trial. All of these were denoted by the term of procurator. I try to show in this section that procuratio originated as an officium amicitiae and continued to be one, even though freedmen often served their patrons as procuratores and even though clients (the amici minores) usually received a salary for their services as procurator. (i) The origin.

The origin of the procurator is lost in the depth of time. All scholars agree that the figure of as such is considerably older that the actiones that later sanctioned his actions. An important group of researchers, the most conspicuous among whom is Serrao, has long insisted that procuratio originated within the tight group of the Archaic Roman familia and had sprung from the habit of entrusting the management of the entire family estate and fortune to a slave. This slave was often freed after a while as a reward for his loyalty, but after his manumission he continued to do the same work. This explains why there was originally no need for an actio to regulate the relation between procurator and dominus. As a slave the former had no legal capacities, while as a freedman he continued to be a part of the familia of his former master and to be subjected to the potestas of the pater familias until the second century BCE. In this view, the oldest type of procurator was the procurator praesentis, with a freedman managing one or more country estates as archetype. His duties were usually limited to management. Only in a much later phase would the procurator as a legal representative have come to the fore.1109

1109 Cf. mainly SERRAO (1947), p. 1-9; WATSON (1961), p. 6-9; ARANGIO-RUIZ (1949), p. 812; KASER (1970), p. 348-349; AUBERT (1994), p. 107.

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Another group of scholars locates the origin of procuratio in the need for a proxy and protector of family and goods in the absence of the pater familias. This proxy could not be a slave or a social inferior, but had to be at least of equal social status to be able to offer the protection required. Le Bras, therefore, situated the original procurator in the circle of amici. Watson notes that Cicero described the procurator legitimus as someone who temporarily takes care of the affairs of another who is absent. ‘This does not harmonise with the concept of a dominus freeing a slave so that he could be his general agent, but it does suit the idea of one friend acting to look after another’s affairs for a limited space of time.’1110 The need for a proxy in the absence of the dominus was discarded from the outset as unimportant in Archaic Rome by Arangio-Ruiz: ‘La prima osservazione da fare è che in condizioni primitivi di esistenza il bisogno ((di) soccorso da altri nell’amministrazzione dei suoi beni o nella conclusione di questo o qual negozio giuridico) era sentito molto meno che in tempi più progrediti.’ Since all property in ancient Rome belonged in common to the family (ercto non cito), there would always have been male relatives present to whom the family estate could be entrusted.1111 Today, no scholar will assume so easily that private property did not exist in Royal, let alone Early Republican Rome. The societas ercto non cito mentioned in the Twelve Tables, which is often quoted as evidence for the community of family property in early Rome, is an inevitable consequence of any inheritance system – such as the Roman – in which all children receive an equal share of the inheritance.1112 The very fact that the Twelve Tables mentioned an actio familiae erciscundae testifies to the divisibility of property in the Early Republic. To conclude from such an action the indivisibility of property before the time of the Twelve Tables would require further strong evidence, especially in view of the fact that nothing indicates that the Twelve Tables changed, rather than recorded, existing custom in this crucial aspect of social life.1113 Such evidence is wholly lacking. According to legend, Romulus distributed two iugera (half a hectare) of land to each citizen (uiritim), not to each family. Such small plots may have been enough to feed a (very) small household or nuclear family, but

1110 WATSON (1965), p. 195 (see also p. 193-195, note that WATSON (1961) still followed Serrao!); CICERO, Caec. 57; LE BRAS (1922), p. 41-49, 58-59; BEHRENDS (1971), p. 224-225. 1111 ARANGIO-RUIZ (1949), p. 3. 1112 See in this sense e.g. GIRARD (1911), p. 575, n. 3. 1113 On the societas ercto non cito cf. infra p. 275-276.

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were by no means sufficient for the needs of an extended family.1114 Drummond summarises his argument as follows: ‘it would be misleading to regard kinship as the determining basis of Roman social organisation in the sense that such bonds necessarily formed the overwhelmingly pre-eminent form of social categorisation. … What must, therefore, be assumed is that already in the early period Roman social relations were dominated by a nexus of informal and personal bonds of mutual obligation broadly comparable to those familiar from the mid- and Late Republic.’1115 Hesiod’s Works and Days clearly shows that in Archaic Greece a good neighbour was valued more than distant family. Nothing indicates that the same did not hold true for Archaic Rome.1116 The other cornerstone of the slaves-and-freedmen-as-original-procuratores thesis, viz. that liberti continued to be under the absolute power of their patroni until at least the late third century BCE, has been increasingly criticised over the past twenty years. Mommsen held that manumission could only have consequences within the Roman family itself. The slave became a libertus or cliens, but from the standpoint of the state, his civil status did not change. He remained an outsider not entitled to its protection.1117 Gradually, as the Roman state developed, freedmen would have gained civil liberties. However, as late as the second century BCE, they could still be termed serui, indicating that they continued to be under the authority of their patroni.1118 The relation of a freedman to his patron was determined by obsequium. According to Lambert, until the late second century, the concept would have indicated the continued subjection of the freedman to his former master.1119 According to Fabre, the decisive wave of emancipation would have come from the progressive circle around the Scipio family. The great leap forwards would have been the edictum Rutilianum (ca. 118), which limited the rights of the patron to 50% of the income of his freedman (the so-called societas Rutiliana) plus operae, on condition that these had been sworn by the freedman. Around the middle

1114 VARRO, R.R. I, 10, 2; PLINY, N.H. XVIII, 7. See MOMIGLIANO (1989), p. 99-100; DRUMMOND (1989b), p. 143-163. 1115 DRUMMOND (1989b), p. 154-155. 1116 HESIOD, Op. 342-353. See also GALLANT (1991), p. 158. 1117 MOMMSEN (1887) III, p. 58-59; LEMOSSE (1949). 1118 MOMMSEN (1907); TREGGIARI (1969), p. 266. 1119 LAMBERT (1934), p. 8-10.

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of the seventies BCE, the societas Rutiliana was replaced by a 50 % share for the patron in the inheritance left by his freedman, provided the latter had not bought his freedom and had no natural heirs.1120 Drummond and Brunt object that there is no indication that there ever existed a class of half-free dependants in Rome. The Twelve Tables mention only free men and slaves, neither half-free nor freedmen being mentioned as separate categories of dependants.1121 Liberti only occur once in the Twelve Tables where it is stipulated that the inheritance left by a freedman dying intestate and without children shall pass to his patron or his patron’s children. However, the statute does not imply that the patron had any power over the freedman’s property while he was alive. On the contrary the very fact that a freedman had the right to bequeath his property to whomever he liked, and the fact that the patron received nothing when there were any surviving children (including adopted children), indicates that the patron had no rights over his freedmen whatsoever. He merely served as the freedman’s proximus agnatus, which in fact is quite logical since strictly speaking a freedman could not legally have any proximi agnati.1122 Obsequium is not unambiguously attested in the sense ascribed to it by Lambert. Waldstein argues that the concept never implied anything more than a moral obligation of respect and dutifulness towards a patron. Treggiari notes that at least in the Late Republic the concept was not reserved for freedmen, but was also commonly applied to freeborn from a lesser rank.1123 The application of the term serui to freedmen derives from a misunderstanding of the text of the lex Cincia by the jurist Paulus.1124 According to Waldstein, Rutilius’s edict did not represent a final phase in the emancipation of freedmen, but rather the reverse. It strengthened the position of the patrons vis-à-vis his freedman. The societas Rutiliana would have been a penalty for the freedman who did not show the proper respect for his patron.1125

1120

FABRE (1981), p. 221-226, 317-331. DRUMMOND (1989a); DRUMMOND (1989b), p. 159-163; BRUNT (1988c), p. 407-409. 1122 Tabula V, 8; CRAWFORD (1996), p. 646-648. I would like to thank professor Rathbone for bringing the statute to my attention. 1123 WALDSTEIN (1986), p. 51-69; TREGGIARI (1969), p. 68-81. 1124 Fragm. Vat. 307; FABRE (1981), p. 114; CASAVOLA (1960), p. 77-82; DUMONT (1987), p. 116-118. 1125 WALDSTEIN (1986), p. 131-141. 1121

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There are no arguments left, therefore, to assume that the original procurator was a slave-freedman manager of an estate. But what about the procurator – amicus thesis? The habit of turning to friends and relatives to look after one’s property and interests when a person was away is well attested in ancient Greece. Gallant notes it for the Archaic and later periods. Xenophon exhorted his readers to watch the property of their friends while the owner was away in order to be able to enjoy the same counter-favour when one had to take leave oneself. Demosthenes emphasised the importance of good neighbours who could watch over a man’s property when he was away.1126 When we look at anthropological studies on friendship in other cultures, we see that the principle articulated in these texts is not culturally determined, but is merely a practical response to material conditions typical of peasant (sub)cultures. Gregory, for example, noted the same custom in a peasant community in twentieth century Beliz, where temporary protection of property and interests were offered and expected in a context of balanced reciprocity.1127 Comparative evidence, therefore, supports the thesis that Roman procuratio grew from the obligations inherent in personal relations – both between family and friends – and originated in a context of generalised and balanced reciprocity. (ii) Amicitia and procuratio in historical times.

We have already seen that procuratores received mandata rather than orders, contrary to, for example, the bailiff (uilicus, actor), who, being usually a slave, received orders. We have also seen that probably the majority of procuratores in the Late Republic were appointed by a general mandate. Following that, it was established that the origin of procuratio itself most likely lay in the social context of reciprocity typically expected between amici. All three points are strong indications that procuratio should be considered as originally an officium amicitiae. However, we have even more direct indications that procuratio was indeed, throughout its history until at least the classical period of Roman law, a reciprocal obligation entrusted to and expected from amici. In his oration for Quinctius, Cicero surveys the appropriate way to start litigation against a person. ‘If he appears to hide himself and to pull tricks

1126

GALLANT (1991), p. 155-158. XENOPHON, Mem. II, 3, 11; DEMOSTHENES, Nic. (LIII) 4. See also MILLETT (1991), p. 76. 1127 GREGORY (1975), p. 76.

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on you continuously, call together his friends, inquire who would be procurator, and give notice at his house.’1128 The text implies that a procurator was normally sought among a man’s friends and relatives. Indeed, we find that Sex. Alfenus, who presented himself as Quinctius’s procurator, was his kinsman (propinquus) and close associate (necessarius). According to Cicero, the same Alfenus was usually also chosen by Sex. Naevius as his procurator whenever Naevius was absent from Rome, since Alfenus was also Naevius’s necessarius, familaris and propinquus.1129 In the case of Quinctius we are dealing with a procurator as representative in court. However, elsewhere in Cicero’s work we see that ordinary procuratormanagers as well were usually chosen from among a man’s amici. In his famous commentary on the interdictum unde ui already discussed, Cicero paraphrased the words of the edict ‘whence you or your slaves or your procurator’ (unde tu aut familia aut procurator tuus) as ‘whether you will have thrown me out, or one of your slaves or your friends (siue me tu deieceris, siue tuorum quispiam siue seruorum, siue amicorum).1130 If we look at the list of known procuratores, we find that apart from a few exceptions all were amici or relatives of their principals. Cornelius Balbus was procurator and familiaris of Caesar, Cicero and Lentulus Crus.1131 C. Oppius was procurator and familiaris of Caesar and Cicero.1132 L. Gavius and M. Scaptius were procuratores and familiares of Brutus.1133 C. Gallonius was procurator and familiaris of Domitius Ahenobarbus.1134 Atticus was procurator and familiaris of the Cicerones, Cato, Hortensius, and A. Torquatus.1135 Roscius Magnus was amicus,

1128 CICERO, Quinct. 54: si latitare ac diutius ludificare uideatur, amicos conuenire, quaerere quis procurator sit, domum denuntiare. 1129 CICERO, Quinct. 16; 21; 27; 61; 66; 69; 87. 1130 CICERO, Caec. 56-57. 1131 Caesar: GELLIUS XVII, 9, 1; CICERO, Att. VII, 3, 11; XII, 12, 1; XIII, 52, 1. For his familiaritas with Caesar see e.g. CICERO, Balb. 63-64; SUETONIUS, Iul. 81; Lentulus: Att. IX, 7, 2b. On their familiaritas see h.l. and Att. VIII, 15a, 2. CICERO, Att. XII, 29, 1-2; 47, 1-2; 2a; XIII, 33, 1-2; Fam. XI, 29, 3; Att. XVI, 3, 5. On their familiaritas see e.g. Fam. VII, 5, 2; IX, 17, 1; Att. XII, 29, 2. 1132 For Caesar: GELLIUS XVII, 9, 1. On their amicitia see e.g. SUETONIUS, Iul. 52; 72; PLUTARCH, Caes. 27, 6. For Cicero: CICERO, Fam. XI, 29, 3; Att. XII, 29, 1-2; XIII, 2a.On their amicitia see e.g. CICERO, Att. XII, 29, 1-2; Fam. VI, 12, 2; 11, 29. 1133 CICERO, Att. VI, 1, 4. On their familiaritas see CICERO, Att. V, 21, 10-12; VI, 1, 5. 1134 CAESAR, B.C. II, 18, 2. 1135 NEPOS, Att 15, 1-3. On his relations with these men see SHACKLETON BAILEY (19651970), p. 7-9.

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cliens and procurator of Chrysogonus.1136 P. Sulla was familiaris and procurator of P. Sittius.1137 The same picture emerges from the Digest where the typical procurator is an amicus fidelissimus1138 who feels a sincere affection for his principal.1139 However, a difficult question remaining is whether a principal looked for a procurator among his amici or whether he merely chose a person whom he thought would be suitable and with whom he entered into a more or less formal amicitia only after the ‘contract’ was made. The question is mainly relevant for relatively humble procuratores. A procurator belonging to the upper ‘classes’, being either a senator or knight or a member of the prima classis, could afford to break off his procuratio whenever he wished, so trust and loyalty had a much more crucial part to play. A humble farm manager, on the other hand, depended on his position as procurator to make a living. Although his relation to his principal may legally have been the same as that of the upper class procuratores, in reality it differed completely. This is most apparent, of course, in the case of freedmen procuratores but even when a procurator was not a freedman of his principal, the amicitia he theoretically enjoyed with his principal was truly an asymmetrical patron-client relation in which he depended much more on the benefits he received from his patron / principal than vice versa. A very interesting letter of Pliny’s merits a short discussion here. It is a letter written by Pliny to his grandfather-in-law Calpurnius Fabatus. Fabatus owned a villa Camiliana in Campania that had fallen into disrepair and for which he needed a new manager. Pliny excused himself to Fabatus. Although he had multi amici, none had the qualities needed to reorganise the estate. All his friends were togati and urbani and as such unsuited to manage country estates (administratio rusticorum praediorum). Fabatus himself had a certain Rufus in mind, a familiaris of his late son, but Pliny doubted that Rufus would possess the right qualities.1140 The letter has puzzled modern editors. Guillemin writes: ‘Cette lettre est l’une des plus obscures de toute la correspondance … quel est le rôle de Rufus … ? C’est un ami du fils de Fabatus, du père de Calpurnia. On ne peut songer à en faire le uilicus ou le procurator de la villa Camiliana,

1136

CICERO, Rosc. Am. 3. On their relation Rosc. Am. 106. CICERO, Sull 56-59 (ibid. for their relation). 1138 Dig. XXXIII, 1, 10, pr. 1139 Dig. XLIV, 7, 61, 1: ualde bene amat. 1140 PLINY, Epist. VI, 30, 2-4. 1137

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ces fonctions étant celles d’esclaves ou d’affranchis.’1141 Once we accept that important procuratores were generally amici and that the term amicus covered both amici pares and amici inferiores or clientes, Pliny’s letter hardly needs explaining. Fabatus was looking for a dependable procurator to whom he could entrust the management (administratio) of the villa Camiliana and who would logically be a protégé of either Fabatus himself or of one of his close relatives or friends. The case indicates that an amicitia preferably preceded an appointment to procurator / manager, but also that this amicitia might be indirect and that, therefore, at least in some cases the principal had no previous relation with his procurator. Was the ensuing amicitia any less relevant because it emerged as an ‘addendum’ to a formal contractual relationship?1142 It was certainly less sincere and more instrumental, but was it less real in the sense that the characteristic norms regulating amicitia – beneficence (benignitas), reciprocity (gratia), loyalty (fides), affection (amor) and reputation (existimatio) – did not apply? I doubt it. As we will see shortly, even the salarium paid to dependent procuratores / managers presented itself as a beneficium rather than as a wage. In my view, even as an addendum amicitia continued to serve as a yardstick by which to judge the actions of both procurator and principal. 1.3 Gratuitas and advantage. a) Mandatum.

Mandatum was, as has been pointed out, necessarily free of charge. The mandatory was not even allowed to benefit personally from the service he provided. Mandate, therefore, had all the features of a beneficium and the Roman jurists did their best to interpret and preserve it as such. However, amicitia was mostly an instrumental reciprocity relation based on mutual advantage. Therefore, the officium mandati entitled the mandatory to gratia that had to be shown by a counter-favour. Cicero placed mandatum unambiguously in a context of mutual loyalty (uicaria fides) in which both principal and agent received favours from each other, so that both amici benefited (ut commune commodum gubernetur).1143

1141 GUILLEMIN A.-M. (1962), p. 138-139. SHERWIN-WHITE (1966), p. 390 assumes that Fabatus was looking for a tenant. 1142 For instrumental friendship (dyadic alliances) as addenda to more formal relationships see FOSTER (1977), p. 19-21; LANDÉ (1977), p. xxi-xxiii. 1143 CICERO, Rosc. Am. 111.

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If we assume that the value of gifts exchanged, for instance, at the holidays of the Saturnalia, stood in a direct relation to the beneficia enjoyed before, we have a first obvious way in which a mandatory could receive a substantial reward for his efforts.1144 However, the exercise of influence, financial support or simply performing a mandate in return were equally effective forms of recompense. The list of substantial counter-favours is virtually unlimited. In the context of a system that depended more on networks of informal interpersonal relations based on mutual advantage than on formal relations based on hired labour, the formally gratuitous nature of mandate was not a serious handicap.1145 Nevertheless, from the Early Empire onwards, we find traces of a more immediate remuneration in the form of an honor / honorarium or a salarium. Ulpianus emphasised that the actio mandati was still valid if such an honorarium was given remunerandi gratia.1146 Ideologically the status of an honor / honorarium or a salarium was very different from the ordinary merces paid, for instance, to hired hands in exchange for the services they provided. The oldest reference to a salarium dates from the late second century BCE. The oldest reference to salaried procuratores dates from the Augustan era.1147 The very fact that salaria or honores / honoraria only became enforceable in the cognitiones extraordinariae implies that they had been unenforceable before the development of the imperial justice system, which evidently means that at least until then they were solely beneficia. Bürge has recently argued that even under the Empire salaria were only enforceable for procuratores ad litem and procurators or mandatories in official or semi-official services, for instance, for the comites of provincial governors or for public doctors or teachers in cities. Needless to say, Bürge’s thesis fits nicely with the view of procuratio developed in this chapter. Unfortunately, I’m not (yet) convinced by his arguments. They require a thorough reinterpretation of a large number of texts. The cases adduced by the author to support his thesis are (in my view) too ambiguous.1148

1144 Compare e.g. the payment for lawyers in gifts at the Saturnalia (e.g. MARTIAL IV, 46). See supra p. 92. 1145 See also BÜRGE (1980) 1146 Dig. XVII, 1, 6, pr. 1147 LUCILIUS 10 (ed. Marx) (= PORPHYRIO, in Hor. Epist. 1, 3, 6); Dig. XVII, 1, 10, 9 (Labeo). 1148 BÜRGE (1993). For the cases adduced see ibid. p. 329-331 (Dig. II, 15, 8, 23; 15, 3, 21; XXXIII, 1, 19, 2; XL, 5, 41, 6; XLIV, 7, 61, 1). See contra e.g. Dig. XXXII, 1, 37, 6: how could Titia hope to circumvent the law that forbade her to leave a share or legacy to her procurator Callimachus by writing it in her will as due as salarium, if salaria were unenforceable beneficia ? See also Dig. XVII, 1, 56, 3.

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Nevertheless, salaria and honores / honoraria never wholly lost their ‘honorary’ liberalitas character. Imperial law created the possibility of constituting enforceable salaria, but not all salaria became such. The term retained its prime meaning of ‘liberal allowance’. Scaevola, for instance, uses the term to denote the allowance a father had agreed to give his daughter.1149 Martial and the scholiasts of Juvenal and Statius refer to salaria paid to poets by their amici magni.1150 There can hardly be any doubt that these salaria were unenforceable. It is interesting to find that the jurists explicitly framed a number of attested salaria in the context of amicitia. Thus we find a case discussed by Scaevola in which L. Titius received a salary of 10,000 sesterces from Seia, in which the latter justified her decision with the words: ‘Because I know that you love me dearly’. The names of persons involved are merely conventional, but far from detracting from the historical value of the case this increases to its typicality.1151 Papinianus refers to a testator Titia, who left an annuity of 6 gold pieces (600 sesterces) a year plus free lodging to her amicus fidelissimus Seius, ‘who had always assisted her in all things’, on the condition that he would continue to assist her children.1152 The close link between salarium and amicitia is in stark contrast to the opposition between officium (amicitiae) and merces asserted by Paulus. It clearly confirms that salarium and merces belong in ideologically different categories. This attitude may be compared to the one we found in connection with ‘gifts’ to lawyers that were legally forbidden by the lex Cincia, but about which Quintilian wrote that although legal assistance by patrons in court was a beneficium that should not be sold, neither should it go unrewarded. A person who gave nothing in return was unworthy to enjoy the beneficium provided by the patrons in court.1153 According to Tacitus, the Claudian venal lawyer Suilius Rufus pleaded the legal recognition of payment for services in court, arguing that lawyers neglected their own

1149 Dig. XV, 3, 21. See also Dig. II, 15, 8, 23 (a salarium for a person honestioris loci equals alimenta for humiliores). 1150 MARTIAL III, 7, 6; Schol. ad Iuu. Sat. 7, 87; Schol. ad Pers. Prol. 10-11. See also BÜRGE (1993), p. 332. 1151 Dig. XLIV, 7, 61, 1: scio enim quia ualde me bene ames 1152 Dig. XXXIII, 1, 10, pr. 1153 QUINTILIAN, Inst. XII, 7, 10-12.

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affairs to devote themselves to the affairs of others.1154 Seneca made the same remark regarding doctors and teachers. They were not paid for their services, but for the time they spent on their patients and pupils, which consequently they could not spend on their own affairs.1155 b) Procuratio.

It has long been taken for granted that a procurator necessarily had to be paid. ‘Mandate had to be gratuitous but procuratio by its very nature could not be. To look after the whole of another man’s affairs or after his estate or business would be a fulltime job and, as such, would have to be remunerated, whether in money or in kind.’1156 The self-evidence of the assertion clearly poses problems in the light of the gratuitous nature of both mandatum and negotiorum gestio, the two contracts on which procuratio was based. I will try to show firstly that not all procuratores were remunerated and secondly that the regular remuneration accorded to procuratores from lower social strata were not constured as common wages. Significantly, an interesting passage in Cicero’s Verrines compares procuratio to societas. Verres had been accused of being a partner (socius) of the decumani, the local tax-farmers in Sicily – wrongly, according to Cicero, for socii necessarily share their profit, which Verres did not to with the decumani. Therefore, the decumani should rather be seen as Verres’s procuratores than as his socii.1157 Does this mean that the decumani served Verres out of disinterested loyalty? Of course not. Once we accept that procuratio properly belonged in the context of instrumental amicitia – i.e. of a relationship based on mutual advantage in which substantial resources were exchanged on an informal basis – there is little need for a legal form of ‘wages’ to be paid out. L. Oppius M. f. was a procurator of L. Egnatius Rufus in Cilicia. For Egnatius’s sake, Cicero wrote a letter of recommendation for Oppius to the legate Q. Gallius and to the governor Q. Marcius Philippus. Oppius’s

1154 TACITUS, Ann. XI, 7: omitti curas familiaris ut quis se alienis negotiis intendat. Note the parallel with Dig. III, 3, 1: procurator est qui aliena negotia mandatu domini administrat (mandatu domini possibly interpolated). 1155 SENECA, Ben. VI, 15, 2: his non rei pretium sed operae soluitur, quod deseruiunt, quod rebus suis auocati nobis uacant; mercedem non meriti, sed occupationis suae ferunt. 1156 WATSON (1961), p. 8. See also MICHEL (1962), p. 191-191. 1157 CICERO, 2 Verr. III, 50.

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procuratio for Egnatius, therefore, ensured him of an indirect access to the highest authority in the province. In other words, although the procuratio may well have been unremunerated, it was not without interest to Oppius.1158 Nothing indicates that Atticus ever expected payment for his services as procurator, but Cicero repeatedly exerted his influence on behalf of his friend. In 60, he wrote two letters of recommendation to Antonius Hybrida and C. Octavius, consecutive governors of Macedonia-Achaea, regarding the difficulties Atticus was having in collecting the debt owed to him by the city of Sicyon.1159 In 51, he personally recommended Atticus’s procuratores and negotia in Asia to the governor Minucius Thermus.1160 In 46, he wrote a letter to the governor of Achaea Sulpicius Rufus in which Atticus’s estates in Epirus were recommended.1161 In 45, he intervened with Caesar to prevent the founding of a veterans’ colony in Buthrotum in Epirus, where Atticus’s main estates were situated. After the death of the dictator, he tried to obtain the same favour from the commission sent to confiscate and distribute the land belonging to the city of Buthrotum.1162 However, there were procuratores in all shapes and sizes, and although the topprocuratores belonged to the upper strata of Roman society and were in a position to benefit from the gratia they acquired through their procurationes, many procuratores were indeed only freedmen or clients. It would be wrong, however, to exclude them a priori from the advantages of gratia. A man like Curtius Mithres, freedman of Rabirius Postumus in Ephesus, was himself an important landowner and businessman.1163 Nevertheless, the fact that many procuratores came from the lower strata of Roman society suggests that a considerable number of them were economically dependent on their principals. We have already seen that some procuratores received a salarium. The oldest reference to procuratores salariarii comes from Labeo and dates to the Augustan era. These salaries became enforceable extra ordinem on condition that they had been explicitly agreed upon in advance.1164 In some cases the salary could be combined with a compensation for

1158

CICERO, Fam. XIII, 43; 44; 73; 74. CICERO, Att. II, 1, 2; Fam. V, 5. On the Sicyon affair see VERBOVEN (1993b). 1160 CICERO, Att. V, 20, 10; 13, 2. 1161 CICERO, Fam. XIII, 18. 1162 CICERO, Att. XVI, 16a-f. See DENIAUX (1975). 1163 See DENIAUX (1993a), p. 259, 490-492. 1164 Contra see BÜRGE (1993). Cf supra. 1159

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expenses incurred, which in turn could be enforced by the actio mandati.1165 As pointed out with regard to mandatum, the term salarium and the procedure with which it could be enforced indicate that insofar as procuratores received wages in the Ciceronian period (which in itself is very likely) these were unenforceable and enjoyed the ideological status of beneficia rather than (sordid) merces. Even so, the material advantages that a procurator enjoyed cannot be reduced to his salarium. Sex. Aebutius, who had been Caesennia’s procurator for years, was rewarded with a share of 1/72 of her inheritance.1166 Scaevola discusses a comparable case in the Digest. The noble woman (honestissima femina) Titia had been wont to use the services of a certain Callimachus, whom she wished to reward by leaving him a substantial legacy. However, Callimachus – presumably because he was a peregrinus without ius commercii – was legally not allowed to inherit or to receive legacies. To circumvent the problem Titia stipulated in her will that Callimachus should receive 10,000 sesterces as a salary ( ), from the heirs. 1167 What makes the case interesting is not that Titia wanted to pay a salary to Callimachus (which was only to circumvent the law), but that she wanted to leave her procurator a considerable sum of money. Accordingly, Scaevola was of the opinion that the clause was invalid, since it clearly aimed at circumventing the law. We may infer that Callimachus belonged to the circle of amici.1168 Of course, not all gifts to procuratores were given post mortem. Cornelius Balbus amassed a fortune thanks to his association with Caesar who let him share in the immense treasures from Gaul. Pompey gave him land on which to build a suburban villa.1169 Another form of remuneration posed a bigger problem for the Roman jurists. Sometimes a principal gave his agent a commission to sell, let out or lend at interest whereby the principal determined a fixed minimum-price. If the agent succeeded in setting a higher price, rent or interest rate, he was allowed to keep the difference. This arrangement was clearly no mandatum, since the would-be mandatory made a profit. It was not societas,

1165

Dig. XVII, 1, 7, pr.; 10, 9; 56, 3. See MICHEL (1962), p. 189-191. CICERO, Caec. 17. Not enough in Aebutius’s eyes though. 1167 Peregrines had been excluded from the right to receive fideicommissa by Hadrianus (GAIUS II, 285), so Titia had no alternative but to present her legacy as a salary. 1168 Dig. XXXII, 1, 37, 6. The names are fictitious. See also Dig. XXXIII, 1, 10, pr.; 19, 2; XLIV, 7, 61, 1. 1169 CICERO, Balb. 63; Att. VII, 7, 6; Fam. IX, 13a. 1166

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for profit and loss were not shared. Neither was it emptio-uenditio, since the agent did not buy, nor locatio conductio operis, since no merces had been agreed upon. Under the Empire a new kind of contract, the aestimatum, was devised as a solution, but in the Ciceronian period every case had to be judged on its own merits.1170 What makes the arrangement interesting is that we find it being applied to procuratores. As late as the second century Julianus refused the actio mandati to a procurator who had received a mandate to lend out money at interest in which his principal had fixed a minimum rate, allowing his procurator to keep the difference if he managed to obtain a higher rate.1171 The arrangement may have applied to M. Seius’s procurator, who according to Varro had been commissioned to raise three fowls for every peacock hen and sell them for 200 denarii each.1172 Obviously, if Seius’s procurator was allowed to keep the difference if he obtained a higher price, the arrangement was extra-legal and Seius’s procurator could have been forced to render the extra money he had made. Did such an arrangement make the general mandates ad negotia gerenda invalid? We do not know, but nothing indicates that this would have been the case. The ‘proto-aestimatum’ was probably just a separate, more specific case besides all the other transactions a procurator supervised or executed on behalf of his principal. To sum up, we can say that the relation between procurator and principal was usually one of amicitia, which implied the exchange of substantial mutua officia. Although the smaller, economically dependent procuratores probably received a more or less regular remuneration in the Late Republic, which later developed into the legally enforceable salarium, the more important procuratores were amply rewarded by counter-favours and –services from their principals. These could take various forms ranging from occasional (but substantial) gifts to inheritance shares and legacies, loans, sureties, financial support, recommendations, posts on provincial administrations and so forth. Salarium itself was not opposed to amicitia and was rather thought of as an expression of gratia than as wages. The payment of a salary did not

1170

Dig. XIX, 5, 13, pr. Dig. XVII, 1, 6, 6. 1172 VARRO, R.R. III, 6, 3. 1171

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depersonalise the relationship between procurator and principal. Consequently, all officia owed as a result of the amicitia between both remained in force. 1.4 Status and social position of procuratores. Procuratio and mandatum, therefore, belonged to the complex of the officia amicitiae. However, amicitia was a broad concept that denoted friendship proper, instrumental friendship and relations between patron and client or protector and protégé, and that ran across the boundaries of kinship. This brings us to the question of the social position and status of procuratores. Are we mostly dealing with amici minores, i.e. protégés and clients or with members of the peer-group, including both actual amici and relatives, or with amici magni, i.e. patrons and protectors. And where do the freedmen procuratores fit in? a) Freedmen

The idea that the ‘typical’ procurator in the historical period was a freedman has long reigned supreme. Kirschenbaum has recently asserted that ‘procuratores were generally freedmen; rarely slaves.’1173 Of course, the idea itself is closely connected with the theory discussed above that locates the origin of procuratio within the circle of the Roman familia. Nevertheless, it seems to have a life of its own, mainly because most epigraphically attested procuratores were freedmen. In a letter from Cicero to Atticus written in 45 BCE, we read that Cicero had ‘handed over’(tradidissem) the procuratores and bailiffs (uilici) from his estate in Cumae to Pilia, Atticus’s wife. Bonfante believes that the term tradere should be taken in its technical legal sense of ‘to transfer property rights’ concludes that Cicero’s procuratores, like his bailiffs, must have been slaves. This conclusion is totally opposed to what we know of procuratores in Cicero’s day, who by nature of their duties, which included representation in court, necessarily had to be free. Serrao, therefore, following Bonfante’s technical interpretation of tradere, argues that freedmen were still sufficiently socially and economically dependent on their former masters to be transferred as if they were property together with the bailiffs who – being slaves – truly were property.1174

1173

KIRSCHENBAUM (1987), p. 144. See also ANGELINI (1971), p. 10-13; SERRAO (1947), p.

1-9. 1174

CICERO, Att. XIV, 16, 1; BONFANTE (1898), p. 260. SERRAO (1947), p. 1-2. Bonfante loc. cit. also refers to CICERO, De Orat. I,249, PETRONIUS 30,1; QUINTILIAN, Decl. 345. None of these, however, refer to slave procuratores.

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However, this amounts to turning the thing upside down. If we assume that tradere was used in a non-technical sense for the procuratores, than why would we assume that it was used in a technical sense for the bailiffs? In fact, tradere is a term that fits very well in the vocabulary of recommendations, where it is used, for instance, in the saying tradere de manu in manum.1175 Concerning his recommendation of Atticus’s affairs and procuratores to the governor of Asia, Cicero wrote to his friend in 51: ‘I have handed over (tradidi) Philogenes and Seius (sc. to the governor Minucius Thermus).’ The former was a freedman of Atticus, the latter was a Roman knight and businessman.1176 The idea that some procuratores were slaves or even informally manumitted freedmen should be abandoned once and for all. Clearly, however, freedmen could qualify as procuratores. After all, most private procuratores that are attested epigraphically were freedmen.1177 In his Contract of mandate Watson followed Serrao’s interpretations and thought that the difference between a mandatory with a general mandate and a procurator was mainly symbolic. A procurator received a salary, which was a sign of social inferiority, and therefore a paid agent was called a procurator whereas an unpaid agent was called mandatarius.1178 In his later Law of obligations, however, Watson asserts that: ‘Undoubtedly … in the last century of the Republic, procuratores might be either freedmen … or friends, even of high rank, acting from the peculiar Roman notion of friendship and duty.’1179 Behrends distinguishes between the procurator omnium rerum, who was normally a relative or a trusted friend, and the procurator cui mandatum est, who was appointed for management reasons and who was normally a freedman or at least belonged to the lower classes.1180 An appointment as

1175

CICERO, Fam. VII, 5, 3. CICERO, Att. V, 13, 2: Tua negotiola Ephesi curae mihi fuerunt, Thermoque, tametsi ante aduentum meum liberalissime erat pollicitus tuis omnibus, tamen Philogenem et Seium tradidi. 1177 Cf. e.g. CIL VI, 9449; 9833; 9831; 7370; 9834. 1178 WATSON (1961), p. 9. See also KASER (1974), p. 191. 1179 WATSON (1965), p. 194. 1180 BEHRENDS (1971), p. 234. 1176

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procurator omnium rerum constituted a considerable honour. It was a token of trust in the qualities, the position and, above all, the trustworthiness (fides) of the appointee. An appointment as procurator mandatarius, for example, for the management of an estate, on the other hand, betrayed social and economic dependence. Behrends’s interpretation is in line with the management-model that is commonly thought to apply to the ancient Roman economy in which both executive and management positions were almost exclusively occupied by slaves and freedmen. This model implies that direct exploitation of important estates was virtually a monopoly of slaves and freedmen. A recent study by Teitler confirms the model. Although in the Greek provinces free epistatai – the equivalent of Roman procuratores – existed, they belonged to the most humble classes in society and some even seem to have been slaves. The epistatai supervised the epitropoi or bailiffs – the equivalent of Roman uilici or actores1181 – who were almost without exception slaves.1182 Teitler bases himself mainly on inscriptions. Not surprisingly therefore, his conclusions are in line with what we have already noted for Latin inscriptions, viz. that the majority of the attested procuratores were freedmen. However, there are some disadvantages involved in using epigraphic evidence to assess the social status of economic actors. Usually, we only know someone as a procurator because that person chose to be recorded as such (usually on his epitaph). What motivated someone to identify himself as a procurator depended on that person’s perception of his own social identity and on his anticipation of how others would perceive this identity. To a notable, having been procurator to one or more of his friends was simply irrelevant. He recorded the public offices he had held and the acts of euergetism he had performed, not the services he had rendered privately to private persons. It is certainly no coincidence that the inscriptions recording freedmanprocuratores fit well into the general picture of the Roman ‘labour market’ which emerges from the epigraphic evidence. Apart from the general overrepresentation of freedmen in them, inscriptions show a marked predominance of slaves and freedmen in all professions and business activities. Sandra Joshel, however, shows that this presumed predominance is based on a distortion of reality.1183 Slaves and freedmen were

1181

On the actor and uilicus see AUBERT (1994), p. 186-196; PORTO (1984), p. 72-82. The Greek titles ( , ), however, were very imprecise, as we will see shortly when we discuss the management of Appianus’s estates in Egypt. 1182 TEITLER (1993). See also BEARE (1978). Contra see SCHEIDEL (1990). 1183 JOSHEL (1992), p. 1992. On inscriptions and social identity see also PERKINS (2000), p. 205208.

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simply more inclined to record their profession or business activities than freeborn were. We may surmise that the slaves and freedmen took pride in their achievements and mentioned these as a counterweight to their servile condition or descent. This was particularly true of procuratio, because it gave a freedman the chance to display his connection with a powerful patron whose trust he enjoyed. His post as procurator in the household of an important senator (or of the emperor himself) added grandeur to his otherwise lowly status. At least three out of five freedman procuratores attested as working outside the imperial family conspicuously mention their noble patrons.1184 The ultimate question, therefore, is not how many of the recorded procuratores were freedmen, but how many of the freeborn attested in inscriptions who chose not to identify themselves by professional or functional qualifications were procuratores? It is, of course, inherently impossible to answer this question on the basis of epigraphic evidence. b) Management of rural estates in Egypt.

Rathbone’s study of the papyri in the Heroninus archive relating to the Egyptian Arsinoite estates of the third century nobleman Aurelius Appianus and his daughter Appiana Diodora ‘Posidonia’ reaches totally different conclusions.1185 The administrative head of all of Appianus’s estates in the Arsinoite region was a man named Alypios. He was in charge of the phrontistai who managed the estates. Alypios himself was a great landowner as well and is mentioned in a papyrus as kratistos doukenarios, implying that he had held a post as procurator in the imperial administration, presumably before he returned to Arsinoe. Rathbone suspects that he was a member of the city council of Arsinoe, but not of Alexandria. Therefore, Alypios belonged to the topflight of the local elite. His high social status is confirmed in several letters in which he is both addressed and referred to as ‘master’ ( ). We have no functional qualification attested for Alypios.1186 Immediately under Alypios were a number of more or less autonomous cheiristai, oikonomoi and epitropoi. All three qualifications were virtual synonyms. The individuals who fulfilled these functions were also members of the local elite. Syros the epitropos was councillor and former

1184

CIL VI, 9449 (Aemilia Lepida); 9831 (a C. Piso); 9834 (Cn. Lentulus Gaetulicus). On freedman procuratores within households see FABRE (1981), p. 332-333. 1185 RATHBONE (1991), p. 58-71. 1186 RATHBONE (1991), p. 58-60.

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kosmètès of Arsinoe. Interestingly, he was also cheiristès for Valeria Elpinike Philoxene. His son, Heron, was a councillor and kosmètès of Arsinoe and became cheiristès of Appianus and of another large landowner Posidonius. Nemesianus was cheiristès of Appianus and Antonius Philoxenos, who was presumably the son of Alypios. Appianus’s oikonomos Heracleides was a large landowner, counsellor, gymnasiarch and possibly even high-priest of Arsinoe. His brother or cousin Aurelius Areios was councillor and epitropos of the estates owned by Valerius Titinianus in the Arsinoite. The management model used by Appianusseems to have been quite representative of the Arsinoite as a whole. Another important large landowner, Posidonius, used a certain Marinos, former gymnasiarch and councillor, as cheiristès together with the abovementioned Heron. Valeria Elpinike used Aurelius Statianus as epitropos. Like the others, Statianus, who may have been a Roman knight, was a councillor of Arsinoe. He was succeeded by Aurelius Dionysios, councillor and former kosmètès of Alexandria. Rathbone concludes: ‘In general the evidence from these other estates sharpens the picture already emerging for the Appianus estate. The central administration of the Appianus estate consisted of two quite separate grades of people: on the one hand the permanent secretariat of ‘assistants’ (boethoi) who were … paid a small monthly salary, and on the other the central administrators themselves, who were drawn from the upper classes of Roman Egypt. … There is … no evidence that the independent administrators … were paid a salary for their services. … The administrators instead enjoyed occasional perks such as hospitality when they visited phrontides and opportunities to make personal profits by dealing in estate produce, but we may guess that their main rewards were the prestige and influence conferred by association with the estate, Appianus’ patronage and gifts from him.’1187 Given the close connection between procuratio and amicitia and our conclusions about the ways in which procuratores and mandatarii were rewarded, it is tempting to apply the Egyptian model to Roman Italy and its procuratores. However, we should beware of easy comparisons. The epitropoi, cheiristai and oikonomoi in the Arsinoite did not receive a salary, whereas we know that some procuratores did. Moreover, it would seem that some procuratores were expected to reside on the estates they

1187

RATHBONE (1991), p. 69-71.

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supervised. Pliny referred to the solitude which an estate manager had to be able to endure. Columella advised organising a uilla rustica in such a way that the room of the procurator is located directly above the gate and the room of the bailiff is next to the gate.1188 Nevertheless, not all procuratores resided on the estates they supervised. A passage in the Digest refers to the costs connected with the inspection tours which the procuratores had to make. This would be a meaningless remark if every procurator resided on the estate he supervised.1189 c) Peers and amici minores.

Although we may assume that dependent procuratores were usually managers, not all procurator - managers were dependants. At least the top management consisted of amici. It would seem, therefore, that, like the relational qualification of amicus, the functional qualification of procurator cut through different status-levels and could be applied to persons from the lower status-levels as well as to members of ²the social and political elite. This may be inferred also from the creation by Augustus of salaried procuratorposts in the imperial bureaucracy, some of which were filled by freedmen others by knights, indicating that the title of procurator, which had existed for centuries, carried little or no denigrating connotations. Procuratio covered a wide field of possible arrangements, ranging from humble salaried procuratores with a limited assignment (for example the supervision of one estate) to amici belonging to the elite supervising the general interests of their protégés, peers and social superiors. The same picture of status differentiation within a functional and semiotic conceptual unity emerges from prosopography. P. Quinctius’s and Sex. Naevius’s procurator Sex. Alfenus was a wealthy Roman knight.1190 L. Flavius, who was procurator of C. Matrinius on Sicily, was likewise a knight.1191 Atticus, who was procurator of numerous senators and knights, was himself an important knight.1192 Caesar’s and Cicero’s procuratores Cornelius Balbus and C. Oppius were knights and allegedly

1188

COLUMELLA, R.R. I, 6, 6. Dig. XVII, 1, 10, 9 1190 CICERO, Quinct. 62: eques Romanus locuples, sui negoti bene gerens. 1191 CICERO, 2 Verr. V, 15. 1192 On Atticus’s see SHACKLETON BAILEY (1965-1970) I, p. 3-59. Recently see PERLWITZ (1992). 1189

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the most powerful men in the state.1193 P. Sulla’s procuratio on behalf of P. Sittius, knight, businessman and adventurer, is noteworthy, because it shows that a procurator was not invariably lower in rank than his principal.1194 Several letters of recommendation written to provincial governors mention procuratores as a separate category apart from freedmen and slaves. Thus we read in the recommendation written by Cicero to Lentulus Spinther as governor of Cilicia for the businessman A. Trebonius: ‘I commend you all his affairs, freedmen, procuratores and slaves.’1195 Virtually the same enumeration is made in the recommendation for Aelius Lamia’s negotia in Africa.1196 Although we have no indication of the social status of the procuratores in these cases, the very fact that they are heaped together with slaves and freedmen indicates that they belonged to the lower social strata. The affairs of Otacilius Naso in Sicily were in the hands of three freedman procuratores, Hilarus, Antigonus and Demostratus.1197 The house and belongings of Aemilius Avianianus in Sicyon were entrusted to his freedman procurator, Hammonius.1198 However, not all provincial procuratores were of humble station or depended socially and economically on their principals. Egnatius Rufus’s procurator in Philomelium in Phrygia (Cilicia) L. Oppius M. f. was an independent negotiator.1199 Brutus’s procuratores on Cyprus and in Galatia, two M. Scaptii, a L. Gavius and P. Matinius, were equites.1200 When Cicero notified Caelius Rufus that he did not trust the persons Caelius had sent to Cilicia to demand fulfilment of a syngrapha Sittiana, Caelius wrote back asking Cicero to act tamquam procurator.1201 The affairs and interests of Cicero and his wife were in the hands of Terentia’s freedman Philotimus, until Cicero found out that he had forged the accounts to cover up his embezzlement of money belonging to

1193 Cf. GELLIUS XVII, 9, 1. See NICOLET (1966-1974), p. 853-855, 964. SHATZMAN (1975), p. 329-330; 483-484. 1194 CICERO, Sull. 57. 1195 CICERO, Fam. I, 3, 2: commendoque tibi eius omnia negotia, libertos, procuratores, familiam. 1196 CICERO, Fam. XII, 29, 2. 1197 CICERO, Fam. XIII, 33. 1198 CICERO, Fam. XIII, 21, 2. 1199 CICERO, Fam. XIII, 43; 44; 73; 74. 1200 CICERO, Att. VI, 1, 4. 1201 CICERO, Fam. VIII, 11, 4.

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Cicero.1202 Atticus, who had assisted Cicero before, took over Philotimus’s most important duties in the forties, while the executive and routine work was left to the dispensator, Eros.1203 The prosopographical angle confirms our earlier conclusion that persons from all classes and social strata could serve as procuratores and that prominent independent procuratores co-operated with dependent freedmen procuratores. Presumably, only the latter received a more or less regular remuneration, possibly in the form of an (unenforceable) salarium. 1.5 The principle of indirect representation. Fulfilling a procuratio was not only an honour, it could also be a burden (onus). In 63 BCE, P. Sittius commissioned his procurator P. Sulla to sell his estates in order to satisfy his creditors. Cicero praised Sittius’s decision, which he explained as inspired by a desire to avoid troubling his procuratores.1204 The fact that a procurator was personally liable, and could, therefore, be sued for the contracts he had made in his principal’s name, presented a real threat. Roman law did not recognise direct representation for private purposes. Both mandatories and procuratores represented their principals only indirectly. The basic principle from which the Romans started was that Ego could bind and be bound only by Ego.1205 This principle of indirect representation is usually considered a serious handicap in the development of the Roman economy. However, I will try to show that the principle fits perfectly in with the logic of using amici as agents and was therefore not necessarily disadvantageous. An important group of researchers believes that the highly developed trade- and money-economy of the Late Republic could not have functioned

1202 On Philotimus see TREGGIARI (1969), p. 263-264; LICHTENBERGER (1895), p. 62-63; MÜNZER (1941). On his conflict with Cicero see HAURY (1956); DIXON (1986), p. 96-97. See especially CICERO, Att. VI, 1, 19; 4, 3; 5, 1-2; VII, 3, 7. 1203 On Atticus’s taking over Philotimus’s duties see especially CICERO, Att. VII, 3, 7 and the previous footnote on Cicero’s conflict with Philotimus. On Atticus’s procuratio see NEPOS, Att. 15, 3. On his services see KIRSCHENBAUM (1987), p. 181-193. On Eros see SHACKLETON BAILEY (1965-1970) IV, p. 421; FABRE (1981), p. 343. 1204 CICERO, Sull. 58: non commisit ut sui procuratores quicquam oneris absente se sustinerent. 1205 On representation in Roman law see KASER (1970); KASER (1974); WATSON (1961), p. 7884; AUBERT (1994), p. 40-46.

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without direct representation and looks to the actiones adiecticiae qualitatis regulating agency through slaves and sons in potestate for a solution, since these actiones did imply direct agency.1206 Kaser thinks that the Roman jurists stuck to the principle of indirect representation out of respect for tradition, while in practice they devised so many exceptions as to make the principle irrelevant. The acknowledgement of the principle of direct agency would demand a highly developed ability for abstract thinking that should not be expected ‘bei Völkern auf jugendlichers Entwicklungsstufe’. In a way, the development of the notion of direct representation, according to Kaser, is nothing less than a miracle of juridical high-tech: ‘es grenzt an Zauberei, wenn der eine handelt und sein Handeln bei dem andere wirkt.’1207 However, such a picture is not in accordance with the fact that Roman law did recognise direct representation in several fields of the law, for instance, for acquisition and alienation of property by tutores, curatores and procuratores.1208 Moreover, no formal state, however primitive, can do without representatives who acquire and contract obligations directly for the state. The principle of direct representation can be found fully in operation for the societates publicanorum and for some important collegia and sodalitates. The abstraction of the concept of direct representation is not a convincing argument to explain the persistence of the principle of indirect representation. Is there so much more ability for abstract reasoning required to imagine direct agency than to imagine a slave – a natural person with a will of his own – as an ‘animated tool’? Why is it not magic that a son or a slave acquires for his father and master? The son makes a stipulatio, while his father acquires. Of course, one could object that the basic unity of Archaic Rome was not the individual but the familia and that this always acted as a legal ‘corporate’ unity.1209 But was this in any way less ‘magical’? The idea of ‘magic’ itself is disputable. If it is magical that Ego binds and is bound by Alter, then is it not also magical that in modern Mediteranean and Latin-American culture the sexual integrity of the daughter embodies the honour of her family? The principle of direct representation itself is as old as humanity and lies at the root of some of the oldest myths and legends. The whole Judeo-Christian

1206 PORTO (1984), passim; KIRSCHENBAUM (1987), passim (esp. P. 1-6, 109-121); AUBERT (1994), p. 40-46; BUCKLAND (1908), p. 702-706; KASER (1970), p. 334. 1207 KASER (1970), p. 335-336. See also AUBERT (1994), p. 40. 1208 ANGELINI (1971), p. 145-154; WATSON (1965), p. 203-205. 1209 See KASER (1970), p. 343-344.

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idea of original sin, in which the descendants carry the guilt of their forefathers and of the covenant between Jehovah and the Jewish people, presupposes the notion of transferability of guilt and obligations. It is hard to maintain, therefore, that the principle of direct representation would require an advanced state of thinking. The core of the problem is that although the Romans were familiar with the principle of direct representation from a very early stage of their history, Roman law never extended this basic principle to cover agency relations between free persons. The possibility of direct agency through slaves and sons in potestate, regulated by the actiones adiecticiae qualitatis, may indeed explain in part why the need for direct agency by free persons was never acutely felt. However, unless we assume that cooperation between free persons simply did not exist, only part of the picture can thereby be filled in. It may be salutary here to consider once more the contemporary western type hierarchical organisation model. In formal corporate enterprises such as modern firms, direct representation is inevitable, for although the firm has corporate capacity it cannot act as a natural person. The firm, therefore, acquires and contracts obligations through her representatives. However, this is not the case in a network environment where, at least in theory, all members have their own agenda and motivations. Claims and obligations should preferably be transferable within the network, but it would be counterproductive for the network as a whole if its members could not acquire or contract obligations when acting on behalf of other members, since this liability in fact reflects and is implied by their formal independence. Therefore, the principle of indirect representation is inherent to the network model. The predominance of networks in the organisation of the Roman economy may help to explain why the need for a general principle of direct representation was not felt. When the need occurred, Roman law was flexible enough to allow remedies culminating in the actio ad exemplum institoriae devised by Papinianus. It is remarkable to find, however, that the tendency to grant procuratores a more direct capacity of representation in classical and late classical law disappears in post-classical law and is abandoned by the compilers of Justinian’s Digest. Byzantine law returns to the principle of indirect representation.1210

1210 KASER (1970), p. 348-352. On the actio ad exemplum institoriae see KIRSCHENBAUM (1987), p. 143-144.

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In my view, the persistence of the principle of indirect agency has nothing to do with die-hard traditionalism, but everything to do with the advantages offered by informal networks and the system of indirect representation in the context of a preindustrial economy that lacked the communication technology of the industrial world. Procuratores and mandatarii were liable for all their actions. This personal liability of the agent greatly facilitated dealing with third parties since the principal’s reliability or solvency was not an issue. It was enough to know whether the agent was reliable and solvent. Conversely, the principal did not have to worry about who the persons were with whom his agent did business, since the agent was liable for both fraud and negligence. We may note also that when Papinianus created the actio ad exemplum institoriae, which made the principal directly liable for the obligation incurred by his procurator, the latter’s personal liability continued to exist, whereas the principal did not acquire any claim resulting from the actions of his agent. The actio ad exemplum institoriae simply gave the plaintiff the choice whether he would sue the agent or his principal. The advantages of the system of indirect representation, therefore, were not abandoned.1211 When obligations existed or arose between principal and third party, the principle of indirect representation implied that the agent was unable to release either party from their obligations. The use of satisdationes, guaranteeing that neither principal nor third party would pursue their claims, circumvented this disadvantage. Thus the satisdatio amplius non peti (given by the agent or by the third contracting party) guaranteed that no further claims would be made. The satisdatio ratum haberi (given by the agent) guaranteed that the principal would ratify the decisions of his agent. The satisdatio iudicatum solui (given by a procurator ad litem in the case of a trial) guaranteed that the principal would accept the verdict.1212 A satisdatio consisted of a stipulatio. As such, it could be guaranteed a second time by any outsider who wished to do so. This is what we see happening in the case of the inheritance left by M. Mindius, a businessman

1211

Cf. KIRSCHENBAUM (1987), p. 147. On satisdationes in general see BERGER (1953), p. 690. On the satisdatio amplius non peti see CICERO, Brut. 16-19; Att. I, 8, 1; Rosc. Com. 35-36. Ratihabitio was later equated with mandatum. See ANGELINI (1971), p. 161; ARANGIO-RUIZ (1949), p. 197-207; BEHRENDS (1971), p. 261-274. On satisdatio iudicatum solui (given also by litigating parties in their own name) see GIRARD (1911), p. 1026-1027; VAN OVEN (1948), p. 102; WATSON (1965), p. 83. See CICERO, Quinct. 29, GAIUS IV, 88-90; 97-101. 1212

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in Greece. Mescinius, Mindius’s heir, sent procuratores to arrange the matter and Cicero wrote a letter of recommendation for them to the governor Sulpicius. In his letter, Cicero added that he would himself stand surety in case a satisdatio amplius non peti were asked from the procuratores.1213 Using a seruus institor (or magister nauis) as agent always presented a potential burden on the wealth of his master who was personally liable in solidum for all obligations incurred by his dependent agent. A seruus cum peculio required a considerable investment on the part of the master to create the peculium, while he continued to be personally liable when he gave his slave orders (iussa). A procurator or mandatory on the other hand, did not involve a direct burden on the principal’s own patrimony, while the principal was not obliged to invest heavily in the patrimony of his agent. The actio mandati and negotiorum gestorum did permit the agent to seek redress from his principal, but only if the agent had faithfully and diligently carried out his principal’s requests or had protected his interests. The principal was in no way liable for fraud or any other incorrect behaviour on the part of his agent. Conversely, the property of the agent guaranteed the contracts he made in his principal’s name. This could be important as an alternative form of surety and it enabled third parties to sue the local agent instead of having to look for his principal at the other end of the Mediterranean. For the management of provincial property, such an arrangement offered obvious advantages. Personal liability was, of course, meaningless if the agents were indigent or otherwise incapable of assuming liability. This again confirms the existence and importance of a class of well-to-do procuratores. The greater a procurator’s financial independence, the wider his potential range of action. The poorer procuratores cannot have had many responsibilities beyond those of supervision or internal management. This is not say that slaves operating as institores, magistri nauium or cum peculio were not important. Rather we should think of procuratores and mandatories as complements to slave-agents. Thus we find on rural estates both slave-bailiffs (uilici, actores) and free procuratores, both working together and having complementary tasks.1214

1213

CICERO, Fam. XIII, 26; 28. On the satisdatio Fam. XIII, 28, 2: (rogo) ut, si quid satis dandum erit amplius eo nomine non peti, cures ut satis detur fide mea. See COTTON (1978) for the case. 1214 See CICERO, De orat. I, 249. The uilicus was not instituted as an institor, whereas the actor probably was. However, the latter only occurs from the first century onwards. On many estates actor and uilicus seem to have been one and the same person. See AUBERT (1994), p. 186-196; PORTO (1984), p. 72-82.

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1.6 Economic scope of mandatum and procuratio. a) Manufacture.

Given the gratuitas-rule of mandate and its close association with amicitia, it is remarkable to find that the majority of examples offered by the jurists belong in a strictly commercial context. Weaving, dying, washing or mending textiles were common subjects for mandates according to the Digest. Michel and Kirschenbaum connect this fact with the operae libertorum.1215 The problem is that these operae had a totally different legal and historic background. They were performed on the basis of an oath sworn by a freedman and were enforceable by the actio operarum.1216 Two organisational arrangements attested in Cicero’s Verrines and Horace’s Odes offer an interesting perspective. Cicero accused Verres of abusing his friends in Sicily by letting them weave valuable carpets and other textiles for him: ‘He provided the purple dye; his friends only the work.’ Cicero is not indignant at the fact that such services were provided by amici, but at Verres’s trading of the goods his friends had made for him, thereby taking advantage of the mandate he had given to his friends.1217 Horace mentions honestae clientae weaving purple Laconian cloaks for the nobility as an officium clientis.1218 The fact that Roman jurists took their examples of mandates from the world of commerce reflects a society in which it was self-evident that friends provided free services that otherwise would have had to be bought on the market. b) Emptio uenditio.

Another category of economically important mandates mentioned in the Digest consists of mandates to buy or sell things. We know of a fairly large number of mandates from the Late Republic to buy things I will survey only a few by way of example.

1215 MICHEL (1962), p. 176-179; KIRSCHENBAUM (1987), p. 132-133; GAIUS III, 162; JUSTINIAN, Inst. III, 26, 13; Dig. XIX, 5, 22. 1216 On the operae libertorum in general see WALDSTEIN (1986). 1217 CICERO, 2 Verr. IV, 58-59. Ipse dabat purpuram, tantum operam amici. (58) Of course it may well be that Verres had formed a societas with his amici, but this is not what Cicero says and since the point is meant to persuade it must have been a credible possibility. 1218 HORACE, Carm. II, 18, 8.

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In 68, Cicero gave a mandate to Atticus to buy statues in Greece to decorate his villas in Tusculum and Formia. Atticus bought the statues and Lentulus Spinther provided the ships to transport them to Italy, where Cicero paid the price plus custom duties to Atticus’s friend and procurator Cincius.1219 Cicero himself received a mandate from M. Marius in 52 to buy some specified items at the auction of an inheritance to which Cicero was one of the heirs. Marius set a maximum price and left the rest to Cicero.1220 Caesennia sent her procurator Aebutius to buy an estate that had belonged to her late husband Fulcinius and adjoining an estate she already owned. Aebutius bought the estate, but later claimed to have bought it for himself.1221 A few cases of purchases on behalf of amici are remarkable because they took place without a mandate. The pseudo-principal (‘pseudo’ because he had not commissioned the purchase) could in no way be forced to ratify the purchase. In 46, Cicero gave a mandate to a freedman of his to buy some statues from the art dealer Aemilius Avianianus. However, M. Fabius Gallus, a familiarissimus of Cicero, was ahead of the freedman and bought a number of statues in Cicero’s name that he thought would please his friend. It turned out differently. Cicero was not at all pleased. Not only had Fabius not bought the statues Cicero had had in mind, he had also bid a much higher price than Cicero had reckoned on paying. Nevertheless, Cicero wrote that he would ratify the purchase since he perceived and appreciated Fabius’s sincerity and affection.1222 Another example of uncalled for agency is attested for Cicero’s brother Quintus. In a letter written to Quintus, Cicero wrote that he had spoken to T. Anicius, an intimate (familiaris) of the Cicerones, who had said that he was looking out for a suburban villa for Quintus. Cicero was surprised that his brother had not written to him about the matter and urged him to write back as soon as possible if he wanted to stop Anicius.1223 In most cases where we encounter mandatories and procuratores in purchases, the mandate does not involve the actual purchase, but the preliminary negotiations or the practical arrangements afterwards. This is

1219

CICERO, Att. I, 5, 7; 6, 2; 7; 8, 2; 9, 2; 10, 2; 11, 3; 3, 2; 4, 3; 1, 5 (in chronological order). CICERO, Fam. VII, 2, 1. 1221 CICERO, Caec. 13-14. 1222 CICERO, Fam. VII, 23, 1. 1223 CICERO, Q. fr. III, 1, 23-24; 4, 5. On the Anicii and their relation with the Cicerones see DENIAUX (1993a), p. 447-448; NOVAK (1979). 1220

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particularly clear in the very complex matter of the fanum Tullianum. After his daughter had died, Cicero – half-mad with grief – became obsessed with the idea of building a shrine (fanum) for his daughter. The shrine was to be set in beautiful gardens just outside Rome. These had to be bought and Cicero considered several possibilities. The project required extensive negotiations and these were conducted mainly by Atticus and in part by two other amici, a certain Sicca and Egnatius Rufus.1224 A number of mandates to sell are also attested. In 44, Atticus was commissioned by Cicero to arrange the sale of his share of a building to Caerellia. Atticus had to make sure that everything was arranged for formal transfer by mancipatio.1225 Sittius’s procurator, P. Sulla, arranged the sale of his estates, with the proceeds of which Sittius’s creditors could be satisfied.1226 When he left Italy in 44, Cicero commissioned Atticus to sell movables and (perhaps) property to pay debts if necessary.1227 Three years before, Cicero had given a similar mandate to sell silverware, clothes and sheets to raise cash to provide him with money while he waited for Caesar’s return and pardon in Brundisium.1228 In 51, Cicero asked Atticus to give satisdationes secundum mancipium – guaranteeing the actual transfer of property after a contract of sale had been made – regarding the sale of two estates.1229 c) Financial services.

Quite a number of mandates and procurationes concern financial services. This has led to a lot of misunderstandings among scholars who incorrectly identified important procuratores such as Atticus or Cornelius Balbus as bankers. The services in question comprised payment of debts (solutio debiti)1230, recovery of debts (appellare debitoris), obtaining

1224 See SHACKLETON BAILEY (1965-1970) V, p. 404-413; BEAUJEU (1983), p. 275-299. CICERO, Att. XII, 18, 1; 19, 1; 12, 1; 21, 2; 22, 3; 23, 1-3; 25, 1; 26, 1; 27, 1; 28, 1; 29, 1-2; 33, 14; 30, 1; 31, 2; 34, 3; 35; 36, 1-2; 38a, 2; 40, 4; 41, 3; 43, 2; 44, 2; 47, 1-2; 50; 51, 2; XIII, 1, 2; 27, 2; 28, 1; 29, 1; 31, 4; 3, 1; 33, 2; 5, 1; 7; 12, 4; 22, 4; 30, 1; 2b; 5, 1-2; 33a, 1; 25, 2, 1225 CICERO, Att. XV, 26, 4 1226 CICERO, Sull. 58. 1227 CICERO, Att. XVI, 2, 2. 1228 CICERO, Att. XI, 25, 3; 24, 3. 1229 CICERO, Att. V, 1, 2. 1230 On the legal difficulties involved with solutio (in)debiti by a procurator see APATHY (1979).

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commercial loans (uersurae), looking for borrowers to lend money at interest to (locare faenus) and arranging transfers of claims (delegationes debitoris). In 47, Cicero asked Atticus to repay 30,000 sesterces he owed to Cn. Sallustius via Sallustius brother Publius. The money was to come from Terentia.1231 In the same year, Atticus repaid the 100,000 sesterces Cicero owed to his hometown, Arpinum. The money had been deposited with a person whose name we lack (due to an unfortunate corruption of the text of the letter in question). Cicero’s dispensator, Eros, had been ordered to take up the deposit and hand over the money to Atticus.1232 As procurator of his brother while the latter was governor of Asia, Cicero paid Quintus’s debts to Castricius1233 and to Antonius and Caepio (probably Marc Antony and Brutus).1234 In all these cases, repayment took place on the grounds of a mandatum. In 50, however, Atticus paid back a small debt Cicero owed to a certain Numerius from Puteoli – possibly Num. Cluvius.1235 Some time later he seems to have repaid another small sum to a certain Philargyrus.1236 In 44, Atticus repaid a debt to Patulcius after the latter had complained about a delay on Cicero’s part.1237 In all three cases, Atticus lacked a specific mandate and advanced the money himself. Possibly, however, Atticus acted on the basis of a general mandate such as was given to Cornelius Balbus in 44 when Cicero asked him to intervene financially in case debts should have to be paid for which there was no ready money at hand.1238 To receive formal requests and admonitions for repayment in his principal’s name was another duty of procuratores intrinsically related to solutio debiti. In 45, Cicero declared he would demand repayment of the first instalment of Tullia’s dowry from Dolabella’s procuratores. However, Dolabella did not pay up and in 44 Cicero was at a loss about

1231

CICERO, Att. XI, 11, 2. CICERO, Att. XV, 15, 1. See also Att. XV, 17, 1; 20, 4. The text reads apud †me item† puto depositum. For possible corrections see SHACKLETON BAILEY (1965-1970) V, p. 262 (apud Monetam); TYRELL & PURSER (1904-1933) V, p. 340 (item would conceal a number). Perhaps we should emend to apud M. Tullium, i.e. Tullius the scriba, who had money belonging to Cicero in deposit in 45 (Att. XV, 26, 4) and who owed Cicero money and interest in 44 (Att. XV, 26, 4; 29, 1). 1233 CICERO, Att. II, 7, 5. 1234 CICERO, Q. fr. I, 3, 7. 1235 CICERO, Att. VI, 8, 5. 1236 CICERO, Att. IX, 15, 5 1237 CICERO, Att. XIV, 18, 2; 20, 2. 1238 CICERO, Att. XVI, 3, 5. Compare Cod. Iust. IV, 35, 1 (Severus and Alexander). 1232

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what to do: demand repayment in court from Dolabella himself through his procuratores or from his sureties.1239 Atticus received the demand for repayment of Q. Cornificius’s debt to a certain Apuleius, for which Cicero stood surety.1240 In case of defraud, the appellatio could be followed by a flagitatio, a public denouncement meant to put enough pressure on a debtor to persuade him to pay up. Atticus suffered such a flagitatio in Cicero’s place in 48 from Tullia’s creditors.1241 Of course, not every appellatio implied that the procurator had to pay up immediately. In most cases, he simply contacted his principal or dispensator, who took care of the actual payment. Conversely, demanding repayment of debts was a traditional duty of a procurator. Philotimus, Terentia’s freedman, was Cicero’s main procurator until the civil war. When Cicero was governor of Cilicia and received a legacy of 256,000 sesterces, it was Philotimus’s duty to make sure the money was paid. When Cicero found out that Philotimus had neglected to do so, he commissioned Atticus to see to the matter and to make sure that additional interest would be charged for the delay in payment.1242 When a procurator demanded repayment of a debt without a mandate and before the term of the debt was over, his action could be against the interest of his principal, who lost the remaining interest. Consequently, the repayment was invalid.1243 One case in Cicero’s letters to Atticus demonstrates the reality of what may at first sight seem merely a theoretical juridical problem. In 45, Atticus demanded repayment from Tullius the scribe of a debt to Cicero. Tullius, however, claimed not to owe anything and Cicero confirmed the claim: ‘There was no reason to call on Tullius the scribe for payment. I would have given you a mandate (tibi mandassem) if there had been’.1244 In some cases recovery of debts could take on huge proportions. Brutus used procuratores to collect the money owed to him by king Ariobarzanes III of Cappadocia and by the city of Salamis on Cyprus. The procuratores M. Scaptius and P. Matinius acted as smokescreens. Formally, they were the creditors of the city, while Brutus remained safely hidden in the

1239

CICERO, Fam. VI, 18, 5; Att. XVI, 15, 1-2. CICERO, Att. XII, 14, 2; 17; 19, 2. 1241 CICERO, Att. XI, 7, 6. See supra p. 176. 1242 CICERO, Att. VI, 5, 1-2. 1243 The debtor could protect himself by demanding a satisdatio amplius non peti from the procurator. 1244 CICERO, Att. XIII, 22, 4. 1240

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background. Brutus simply gave them a mandate to lend the money to the Salaminians. Once the contract was made, there existed legal obligations between Brutus and his procuratores (based on mandate) and between his procuratores and the Salamini (based on the syngrapha that stipulated the conditions of the loan), but not between Brutus and the Salamini. The principle of indirect representation unveils itself here in all its perfidious glory. Brutus’s procuratores belonged to the ordo equester and Cicero’s predecessor appointed them praefecti and gave them a cavalry detachment, which they used to confine the councillors of the city manu militari in their boulè until five of them died of starvation. 1245 The procuratores in Cappadocia, another M. Scaptius and a certain L. Gavius, continued to ‘serve’ as prefects under Cicero when he was governor of Cilicia. Thanks to this appointment, they enjoyed a special diplomatic status and other advantages in the province and in the kingdom of Cappadocia.1246 Cluvius from Puteoli used procuratores for the administration of the claims he held in Pompey’s name on several cities in Asia.1247 Looking for credit is another assignment that could be given by mandate. Atticus was commissioned by Cicero in 51 to repay his debt to Caesar at all costs, if necessary by contracting a new commercial loan (uersura).1248 A comparable mandate was given to Atticus by Cicero in 44 in order to bridge a difficult period of 5 months. Cicero asked Atticus to find the money and to charge him for it. The term used is expensum ferre, which can only mean that Atticus borrowed the money first and subsequently lent it to Cicero who thereby became Atticus’s debtor.1249 Again, we find the principle of indirect representation in operation. The Digest offers some examples of procuratores charged with lending money at interest. The most famous example is that of a procurator who was commissioned to lend out money at interest. His principal merely imposed on him a minimum interest. If the procurator realised a higher interest rate, he was allowed to keep the difference. Julianus denied that the actio mandati was applicable because the procurator had clearly enriched himself. But the case is interesting because it shows that the

1245 CICERO, Att. V, 21, 10-13; VI, 1, 5-8; 2, 7-9; 3, 5. An alternative arrangement would be that Brutus lent the money to Scaptius and Matinius who then lent it on to the Salamini. On the basis of the texts, both are equally possible. See supra p. 130 on the case. 1246 CICERO, Att. VI, 18, 4; 20, 6; VI, 1, 3-4; 3, 5; HORACE, Epist, I, 6, 39 1247 CICERO, Fam. XIII, 56. 1248 CICERO, Att. V, 1, 2. 1249 CICERO, Att. XV, 20, 4.

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nominal creditor was in any case the procurator, who, according to Julianus, simply became the debtor of his principal.1250 Arranging delegationes debitoris meant conducting negotiations. We have already seen that delegatio debitoris was not easy. All parties had to agree and this voluntary agreement offered ample scope for condiciones. Caesar’s procurator Balbus negotiated a delegatio debitoris from Caesar to Cicero with Cicero’s procurator Atticus.1251 A few months later, Atticus received a mandate from Cicero to negotiate about a delegatio to Cicero of three claims held by Faberius in payment of a considerable debt the latter owed him.1252 Although we know that delegationes debitoris could be used to sell claims, we have no examples of procuratores being charged to do so.1253 d) Management of property.

By definition a procurator omnium rerum was charged with the protection of the totality of the possessions and interests of his principal. In Cicero’s words, he was ‘someone who is as it were almost a master of all affairs (omnium rerum) … i.e. a substitute in another man’s rights.’1254 Most procuratores, however, had more limited powers. A special category of procuratores-managers was formed by the procuratores fundi, business managers in charge of one or more rural

1250

Dig. XVII, 1, 6, 6. See also ANGELINI (1971), p. 91-93. CICERO, Att. XII, 3, 2; 12, 1. 1252 CICERO, Att. XII, 5a; 6, 1; 13, 3, 1; 4, 2; 22, 4; 23, 3. 1253 CICERO, Att. XII, 3, 2. 1254 CICERO, Caec. 57: omnium rerum … quasi quidam paene dominus, hoc est alieni iuris uicarius. 1251

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estates.1255 The lex agraria inscribed on the Tabula Bembina (probably dating from 111 BCE) mentioned procuratores on the estates of Roman landowners in Africa.1256 Cicero’s estates in Cumae at lake Lucrinum were run by bailiffs (uilici) and procuratores.1257 The estate near Thurium belonging to another M. Tullius was run by a uilicus and a procurator.1258 M. Seius entrusted the breeding of peacocks to a procurator.1259 Columella advised installing separate quarters for the procurator above the entrance to a rural villa.1260 Pliny’s grandfather-in-law, Fabatus, looked for a protégé of his son or of his grandson-in-law to employ as procurator to reorganise the villa Camiliana.1261 Another letter of Pliny’s indicates that a single procurator could be responsible for several neighbouring estates.1262 Quintilian presents it as self-evident that the rich ran their estates through procuratores.1263 The duties of rural procuratores should not be confused with those of bailiffs. The procurator was primarily a supervisor of the bailiff, responsible only for the important decisions. To the outside world, the procurator acted as the legal representative of his principal. He could be sued as head of the estate and could make claims on behalf of his principal. When the bailiff was not appointed actor (which became common only from the first century CE onwards)1264 his master incurred no legal obligations for any transactions (for example sale of estate produce) his bailiff might have conducted. In these cases procuratores must have been responsible for important transactions and contracts with third parties. It would be a mistake to assume that the procuratores of rural estates invariably belonged to the lower status levels because they had to devote a lot of their time to the management of the estate. Rathbone’s study of the archive of the Egyptian landowner Appianus has shown that the top management and supervision of rural estates belonging to the imperial aristocracy was in the hands of the local gentry. Nevertheless, Pliny’s description of the requirements of a rural procurator indicates that in some cases he was expected to reside on the estates he supervised. This is hardly reconcilable with the social obligations expected from a member of the Italian municipal gentry. e) Inheritances.

The number of attested procuratores charged with arranging the acceptance of inheritances is conspicuous. Domitius Ahenobarbus sent a familiaris from the ordo equester, C. Gallonius, to Spain as procurator to arrange an inheritance bequeathed to Domitius.1265 Mescinius Rufus used procuratores to arrange the inheritance left by his brother 1255

See AUBERT (1994), p. 183-186; KIRSCHENBAUM (1987), p. 149; TEITLER (1993). CRAWFORD (1996), p. 113-180; WATSON (1965), p. 196-197; BEHRENDS (1971), p. 220. 1257 CICERO, Att. XIV, 16, 1. See also SHACKLETON BAILEY (1965-1970) VI, p. 232. 1258 CICERO, Tul. 14. 1259 VARRO, R.R. III, 6, 3. 1260 COLUMELLA, R.R. I, 6, 7. (cf. also I, 6, 23). 1261 PLINY, Epist. VI, 30, 2-4. See supra p. 245 on the case. 1262 PLINY, Epist. III, 19, 2. 1263 QUINTILIAN, Decl. Min. 345, 10. 1264 AUBERT (1994), p. 186-196. 1265 CAESAR, B.C. II, 18, 2. 1256

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M. Mindius in Greece.1266 L. Flavius sent procuratores to accept the inheritance left by Octavius Naso in Asia.1267 The businessman C. Vennonius acted as a voluntary procurator for Pompey when he checked the inheritance left by Pompeius Vindulus, a freedman of Pompey.1268 Vestorius took care of Cicero’s shares of the inheritances left by Cluvius and Brinnius.1269 Atticus arranged the acceptance of several inheritances for Cicero: in 50 the inheritance left by a Precius1270, in 47 the inheritance left by Fufidius1271, in 44 the inheritance left by certain Demoniacus.1272 f) Various negotia.

Various affairs, denoted by the infinitely vague term negotia, were entrusted to procuratores. Otacilius Naso had negotia in Sicily that were conducted by three freedmen procuratores.1273 The important knight Aelius Lamia had negotia in Africa that were run by procuratores, freedmen and slaves.1274 T. Pinarius managed the negotia and rationes of a certain Dionysius in Africa.1275 Negotia is a very vague term and we may be dealing in all three of the above cases with rural estates. However, this is far from certain and involvement in the grain trade, for which both provinces were renowned, must be accepted as a possibility. Caerellia had res, nomina et possessiones in Asia, which she at least in part had inherited from the negotiator Vennonius and that were run by procuratores.1276 Egnatius Rufus had negotia in Asia that were run by a slave, but his negotia in Philomelium were conducted by his procurator, the negotiator L. Oppius.1277

1266

CICERO, Fam. XIII, 26; 28. CICERO, Q. fr. I, 2, 10-11. 1268 CICERO, Att. VI, 1, 25. 1269 CICERO, Att. XIII, 12, 4; 13-14, 4-5; 21a, 3; 22, 4; 50, 2; 14, 18, 2; 20, 2. 1270 CICERO, Fam. XIV, 5, 2; Att. VI, 9, 2;VII, 1, 9. 1271 CICERO, Att. XI, 13, 3; 14, 3; 15, 4. 1272 CICERO, Att. XV, 3, 1. 1273 CICERO, Fam. XIII, 33. 1274 CICERO, Fam. XII, 29. 1275 CICERO, Fam. XII, 24. On T. Pinarius see DENIAUX (1993a), p. 538-540; NICOLET (19661974), p. 979-980. 1276 CICERO, Fam. XIII, 72. 1277 On his Asian interests CICERO, Fam. XIII, 45. It is not clear under what kind of legal arrangement the slave operated (ex peculio or as institor). On his negotia in Philomelium see Fam. XIII, 43; 44; 73; 74. 1267

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g) Accounts

Procuratores had to keep accounts of what they did on behalf of their principal and they could be forced by the actio mandati (or negotiorum gestorum) to hand these accounts over to their principal.1278 More interesting, however, is that someone could be charged with a mandate to check accounts. When Cicero ran into financial difficulties unexpectedly in 44, he sent his freedman Tiro with a mandate to check the accounts of his dispensator, Eros. Tiro in turn contacted Atticus, who had been Cicero’s procurator for years. Atticus soon took over the initiative from Tiro. He notified Cicero that an emergency loan of 200,000 sesterces would have to be found.1279 Caesar trusted on Balbus to check his accounts.1280 The quaestor Mescinius Rufus even asked his own frater, the businessman M. Mindius, to check the accounts of the province of Cilicia.1281 *** This survey of procuratores’ tasks presents only a small selection among the wide range of powers and activities of Roman procuratores and mandatories. Slaves and freedmen often worked under the supervision of a procurator. Although many of these procuratores were freedmen, important commissions were entrusted mainly to amici. Everything indicates that amici, under the guise of procuratores and mandatarii, played a crucial role in the administration of the fortunes of the Roman elite.

1278

Cf. Dig. II, 13, 9. CICERO, Att. XV, 15, 3; 17, 2; 20, 4. 1280 CICERO, Att. XIII, 52, 1. 1281 CICERO, Fam. V, 20, 2. 1279

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SOCIETAS.

Although socii did not owe each other gratia for the business they jointly conducted, I try to show in this chapter that societas can nevertheless only be fully understood when seen from the perspective of an amicitia or family relation between its partners. The principle of indirect representation was as fundamental to the societas arrangement as to mandatum and procuratio and offered the same advantages and disadvantages. I also deal with the problem of corporate capacity or rather the lack of it, which is generally thought to have seriously curtailed the possibilities of societas, but which in my view reflects the actual form of organisation behind the legal construct of societas, viz. personal networks rather than ‘corporate’ groups. Above all, however, societas should be seen as a highly flexible framework within which various types of economic organisations (both ‘corporate’ – in a sociological sense – and non-corporate) could be set up. Legal framework. As mandatum and procuratio, the concept of societas or partnership denoted much more than a legal arrangement. Societas was any form of co-operation between persons for whatever common purpose. A societas was primarily a ‘community’ and this primary connotation was never absent even when the concept was used in an economic or legal technical sense.1282 Nevertheless, as a legal concept societas was very old. As early as the time of the Twelve Tables a societas ercto non cito – also called consortium familiare – existed between sui heredes in case of a common inheritance. At a very early stage in Roman law, it became possible to create a societas ercto non cito between nonrelatives outside the strict field of application of the law of succession. Every socius had the right to

1282

Cf. e.g. JOLOWICZ (1939), p. 309.

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demand dissolution of the societas and division of the erctum non citum by the actio familiae erciscundae.1283 The societas ercto non cito had long vanished by the time of the Late Republic. Probably in the course of the third century, the consensual contract of societas developed. The societas omnium bonorum comprised all goods and possessions of the partners. The societas uniuersorum quae ex quaestu ueniunt comprised all acquisitions of the partners. The societas unius negotii involved a specific enterprise, for example, the exploitation of a merchant ship. The societas unius rei pertained to a single affair, for instance, one trade voyage. The object of the societas uectigalium was the farming and collecting of taxes.1284 Every socius had to contribute something to the partnership, but this contribution could be either in kind or in labour. Societates could be formed, therefore, in which one socius contributed money or capital goods, the other labour (operae).1285 Unless specific agreements were made to the contrary, profit and loss were shared equally among partners regardless of the value of their input. A societas in which a partner shared in the losses but not in the profits of the joint enterprise – the so-called societas leonina – was legally invalid.1286 All types of societas – except the archaic societas ercto non cito – had in common that they were formed through the consensus of all their partners. As in the case of mandatum no formalities were required but consensus was a necessary precondition. A simple co-operation, for instance, between co-heirs, was not enough to give rise to a societas.1287 Conversely, a societas only lasted as long as consensus lasted. Every partner had the right to renounce the partnership (renuntiatio) at any time he pleased. The legal principle involved was that no one could be bound indirectly by the actions of others against his will.1288 Naturally, a societas

1283 GAIUS III, 154-154b; GELLIUS I, 9, 12; FESTUS, p. 72, 380 (ed. Lindsay) (s.v. erctum citumque, sors). See KASER (1955) I, p. 87-90; ARANGIO-RUIZ (1950), p. 3-22; WATSON (1965), p. 126-127; GIRARD (1911), p. 575, n. 3. 1284 GAIUS III, 148; Dig. XVII, 2, 5; 7-13. GIRARD (1911), p. 575-581; KASER (1955) I, p. 477481; VAN OVEN (1948), p. 283-284; WATSON (1965), p. 126; JOLOWICZ (1939), p. 309-311. 1285 Possibly used by Cato the Censor (Plutarch, Cat. Mai. 25, 6), see VON LÜBTOW (1975), p. 106. 1286 WATSON (1965), p. 137-138. 1287 GAIUS III, 135; Dig. XVII, 2, 4. 1288 VAN OVEN (1948), p. 288. Of course, it was against the law to renounce a societas at an inappropriate moment (intempestiua) or with fraudulent intent (dolo malo). See GAIUS III, 151; WATSON (1965), p. 133-134.

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ceased to exist when the object around which the partnership had been construed had disappeared, for example, when a commonly exploited merchant vessel sank, or when the actio pro socio was initiated.1289 In classical law, a societas ceased to exist at the death or capitis deminutio of one of its partners.1290 Although a share (pars) could not be inherited as such, the heir was liable under the actio pro socio for what the deceased partner owed to his fellow socii and he could use the same actio against the remaining partners to claim what would have been due to the deceased partner.1291 Watson believes that in the Late Republic some societates could be inherited because Cicero refers to a societas hereditaria in his oration Pro Quinctio. It is not clear, however, whether Cicero used the term hereditaria here in a legal sense and there are no other indications that the law was any different in the Late Republic than in the Early Empire.1292 The fundamental instability of societas reflected the fact that societas was not granted corporate capacity (corpus). It existed only as a complex of mutual obligations and rights between partners.1293 The legal consequences of the actions of partners did not lie in the acquisition of rights or the incurring of obligations by a legal person but in the creation and disappearing of mutual rights and obligations between the partners, or in the Roman legal terminology the communicare lucrum et damnum – ‘the sharing of profit and loss’. In this respect, Roman societas was fundamentally different from modern corporations or trade companies, which are characterised by their corporate capacity. Outsiders doing business with socii could in no way acquire claims on or incur obligations toward the societas as such because from their point of view the societas as a legal entity did not exist. According to the criteria of modern business law, societas would be nothing more than a non-trading partnership, i.e. a form of co-operation without corporate capacity in which the partners are severally liable in solidum for the actions they undertake. Legally, the partnership does not exist for outsiders.1294

1289

Dig. XVII, 2, 63, 10. GAIUS III, 151-153. 1291 Dig. XVII, 2, 35. 1292 WATSON (1965), p. 131-133. CICERO, Quinct. 76. 1293 VAN OVEN (1948), p. 280; ARANGIO-RUIZ (1950), p. 78-83; KASER (1955) I, p. 479. 1294 Cf. Encyclopaedia Brittanica 15, p. 366-367 (s.v. Business organisation); ZOTTMAN (1981), p. 66-78 (s.v. Personengesellschaft, Recht der). 1290

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In some cases, the lack of corporate capacity was partially remedied. Thus it was accepted (by ius consuetudinis) that money given to an argentarius could be demanded back from his socius. However, these remedies remained exceptional. A pactum de non petendo made by an argentarius, for instance, was not binding for his socii.1295 In some exceptional cases a societas was granted corporate capacity by a law, a senatorial decree or (later) an imperial constitutio. The most famous example is offered by the large societates uectigalium formed to collect taxes on behalf of the state. Under the Republic, they were no doubt the only ‘incorporated’ societates. Under the Early Empire a few societates publicanorum farming the exploitation of silver, gold and salt mines were added, together with a few special collegia that were crucial to the grain supply of the capital, among which, for example, were the collegium pistorum and a few collegia nauiculariorum.1296 The actio pro socio was a iudicium bonae fidei that entailed infamia for the defaulter. It testifies to the social importance attached to societas. Cicero describes the iudicium societatis as one of the iudicia in which a man’s reputation (existimatio) was at stake to the point of endangering his entire social personality (caput).1297 Conversely, however, a socius enjoyed the beneficium competentiae that limited the plaintiff’s claims to what the defendant could bear (quod facere potest), reflecting the close ties of family or amicitia which normally underlay a societas.1298 Although community of property did not in itself constitute a societas, many socii did have property in common necessary for their common enterprise. The division of common property was enforceable with the actio communi diuidundo, which in all likelihood was originally modelled on the ancient actio familiae erciscundae. The actio pro socio and the actio communi diuidundo were complementary actions. When a socius was sued with the actio communi diuidundo, he continued to be

1295

PS.-CICERO, Rhet. Her. II, 19. On the pactum de non petendo see Dig. II, 14, 27; IV, 8, 34, pr. Note, however, that the problem could be avoided by a satisdatio amplius non peti given by the socius who made the pactum de non petendo. On the societas argentaria see BÜRGE (1987), p. 519-52; ANDREAU (1987), p. 626-631 1296 see Dig. III, 4, 1, pr. See JOLOWICZ (1939), p. 311. 1297 CICERO, Rosc. Com. 16. See also CICERO, Caec. 7; Top. 42; 66; N. D. 3, 74; Off. III, 70; Quinct. 26; Rosc. Am. 16-17; 19; 21; HORACE, Epist. II, 1, 123. 1298 Dig. XLII, 1, 22, 1. VAN OVEN (1948), p. 283, 209-291; WATSON (1965), p. 144. On the beneficium competentiae see KASER (1955) I, p. 403-404

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liable under the actio pro socio and vice versa. Like the actio pro socio, the actio communi diuidundo was an actio bonae fidei.1299 Societas and amicitia. A societas was formed with the objective of making a common profit. There was no question, therefore, of a beneficium from one socius to the other. When a socius provided goods or services, he did so to improve himself, not to benefit his partners. Gratia, therefore, was not a binding force between socii. Yet ties of amicitia were not entirely irrelevant. Societas rested on a relation of fides between socii that was sanctioned by the actio pro socio. Fides in societas continued to be a complex and diffuse tie, the application of which was not limited to specific (inter)actions directed towards the express objectives of the societas, although these latter actions were the only ones that fell under the scope of the actio pro socio. Non juridical societates were conceived purely as relations of fides. Thus Rome’s allies (socii) were ideologically bound by fides and could apply to Rome’s fides for protection.1300 The criminal societas set up by Roscius Capito and Roscius Magnus to kill Sex. Roscius from Ameria relied on hired killers who were in the Roscii’s fides et clientela.1301 According to Cicero, the societas brought together by Caesar to overthrow the Republic was held together by fides.1302 The societas hominum that bound all people relied on iustitia that in turn depended on fides.1303 Contractual fides derived from the societas hominum, since the latter implied that people were honourable towards each other (honestas), which included showing respect for each other’s due and faithfulness to agreements made (rerum contractarum fide).1304 This seems to have been the concern also of Mucius Scaevola the pontifex, who, as a jurist paid particular attention to the iudicia bonae fidei – among which was the iudicium societatis – because the societas uitae relied on them.1305

1299

Dig. XVII, 2, 31; 43. BERGER (1953), p. 342; KASER (1955) I, p. 494; GIRARD (1911), p. 628-630; VAN OVEN (1948), p. 110-111. 1300 CICERO, Off. II, 26-27. See FREYBURGER (1986), p. 197-199. 1301 CICERO, Rosc. Am. 93. 1302 CICERO, Att. X, 4, 1. 1303 CICERO, Off. I, 20; 23. 1304 CICERO, Off. I, 15. 1305 CICERO, Off. III, 70.

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Cicero counted socii among a person’s intimates and asserted that infamia rightly ensued condemnation in an actio pro socio because when a person chose to share his interests with another (qui cum altero rem communicauit) he obviously did so because he believed that he could rely on him (auxilium sibi se putat adiunxisse). ‘In whose fides can one seek refuge if one is maltreated through the fides of the very person to whom one has attached oneself?’ One can take precautions against strangers, but not against intimates. ‘How can one protect oneself against a socius, when even fearing a socius is undutiful (ius offici laedimus)?’1306 At least ideologically, therefore, the typical multiplicity of fides was preserved in the mono-functional arrangement of societas. No doubt, Cicero’s romantic assertions of societas in his oration for Sex. Roscius from Ameria were somewhat exaggerated. Nevertheless, they reflected social reality in so far as societas was never an impersonal relationship and most socii were amici or propinqui. In his oration Pro Quinctio, for instance, Cicero accused Sex. Naevius of violating the laws of friendship, partnership and relationship by marriage – ius amicitiae, societatis, adfinitatis – when he accused P. Quinctius.1307 Historically, societas grew out of the brotherhood (fraternitas) between the natural heirs (sui heredes) of an undivided property. In the course of time, societas outgrew the circle of near kin, but the brotherhood expected from socii never totally disappeared. Prosopography confirms that societas was usually embedded in a diffuse personal fides-relation. C. Quinctius initially chose Sex. Naevius as a partner to exploit the estates he had purchased in Galla Transalpina because of their companionship (consuetudo) and intimacy (familiaritas). Later, Naevius married Quinctius’s sister (or niece). This made Naevius a relation by marriage (adfinis) and a ‘friend’ (necessarius) of C. Quinctius’s brother (or cousin?), P. Quinctius, who was C. Quinctius’s first heir.1308 P. Iunius, who obtained the public contract to rebuild the temple of Castor and Pollux was associated with L. Rabonius, who would be responsible for finishing the temple once the structural work was over.

1306 CICERO, Rosc. Am. 116: Ad cuius igitur fidem confugiet, cum per eius fidem laeditur cui se commiserit? … Tecti esse ad alienos possumus, intimi multa apertiora uideant necesse est; socium cauere qui possumus? quem etiam si metuimus, ius offici laedimus. 1307 CICERO, Quinct. 53. 1308 CICERO, Quinct. 12; 16; 25.

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Although we don’t know exactly what the relation between the two men was, the fact that Rabonius was appointed tutor of Iunius’s son indicates that some sort of amicitia had existed between them.1309 Fannius Chaerea and Q. Roscius Gallus, the actor, were old friends before they jointly started to exploit the acting talent of Chaerea’s slave Panurgus.1310 Even the major ‘corporate’ societates uectigalium relied on amicitia to some extent. Rabirius Postumus was a contractor (manceps) in many of these contracts, but he divided (sold) shares among his amici. Needless to say, these kinds of amicitia were highly instrumental and no doubt very volatile.1311 A number of societates were formed between brothers or cousins. M. Fabius Gallus exploited an estate in Herculaneum together with his brother Quintus.1312 C. and M. Fufius were joined in a societas faeneraticia to lend out money at interest.1313 Cn. and Q. Curtius Postumus had a bank or some other joined enterprise with a common ledger showing that Verres had deposited money with them, probably with the intention that the Postumi would put it out at interest.1314 A stamp on a lead bar attests to the societas between a certain M. and P. Roscius who jointly exploited a silver- and lead mine near Carthago Nova.1315 The close connection between societas and friendship or family should not surprise us. Even today the vast majority of business partnerships are contracted between close family or friends. Impersonal joint ventures are a feature of large scale enterprises and these were rare in the pre-industrialised world. It would be wrong, however, to imagine that societates were only formed between peers. In his Paradoxa Stoicorum Cicero accused Crassus – his prototype of the unscrupulous money-grubber – of entering into societates with slaves, freedmen and clients.1316 Ulpianus confirms that societates between unequal partners were valid and asserts that it often happened that one socius was poor and contributed his labour, while the richer socius contributed money or goods.1317

1309

CICERO, 2 Verr.I, 130-152. CICERO, Rosc. Com. 25. 1311 CICERO, Rab.Post. 4. 1312 CICERO, Fam. II, 14; IX, 25, 2-3; XIII, 59. 1313 CICERO, Flacc. 46-48. 1314 CICERO, 2 Verr. I, 100. 1315 ILLRP 1262. See also NICOLET (1966-1974), p. 1004. 1316 CICERO, Par. Stoic. 6, 46. 1317 Dig. XVII, 2, 5. 1310

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Cato the Elder set up a societas with no less than fifty partners for a merchant venture. He took one part of the societas via his freedman Quintio and advanced the capital needed for the enterprise.1318 C. Quinctius chose Sex. Naevius as partner to exploit his newly acquired estates in Gallia Narbonnensis. While Quinctius was clearly well off financially, Naevius came from a poor family and had been working as an auctioneer. Naevius had nothing to contribute to the societas except his personal talent in business. Accordingly, Naevius left Italy to manage the estates personally, while Quinctius remained in Rome.1319 Asymmetrical societates of this kind were quite different from modern limited partnerships. Although today’s limited partnerships also distinguish active and ‘sleeping’ partners, the active partner is personally liable in solidum, while the sleeping partner is liable only to the extent of his investment. In a Roman asymmetrical societas the sleeping partner was not liable at all towards outsiders for the contracts made by his partner, while his liability towards his partner was either determined by the pactum conuentum containing the terms of the partnership or – failing a such a pact – was determined by the number of partners participating in the partnership (pro parte). The arrangement was particularly suitable for socii who wanted to stay behind the scenes, since to the outside world their involvement could easily be kept secret.1320 Societates, therefore, were a suitable way for the elite to associate themselves with businessmen and thus to invest a part of their surplus or to manage possessions overseas. Conversely, societates offered a channel to drain the fortunes of the elite to large and small business enterprises. This channel was never depersonalised. Instrumental friendship and patronage continued to lay the groundwork.

1318 PLUTARCH, Cat. Mai. 25, 6. It’s not clear wether Cato actually lent the money (a case of pecunia traiecticia) or merely advanced it through Quintio as socius. VON LÜBTOW (1975), p. 106 pleads for the latter view. Rougé does not believe that Cato took a share of the societas (ROUGÉ (1966), p. 426-428; ROUGÉ (1980), p. 292-293). But Plutarch’s words

only make sense if Cato’s freedman joined the societas as Cato’s agent (procurator?) Although according to the principle of indirect representation Cato would legally not be part of the societas, he would be so factually. See also D’ARMS (1981), p. 39-41; KIRSCHENBAUM (1987), p. 154. On societates in maritime trade see also CICERO, 2 Verr. V, 154. 1319 CICERO, Quinct. 12-14. 1320 The same reason why commandite partnerships were widely popular in Early Modern Europe. See BRAUDEL (1988-1990) II, p. 413.

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Societas and agency. Asymmetrical societates between unequal partners, in which some partners contributed money or capital goods and others only labour, brings us back to the question of Roman agency. In the case of Naevius and Quinctius, for instance, Naevius obviously acted as Quinctius’s autonomous agent in exchange for part of the profit. As with procuratio and mandatum, representation by socii could only be indirect. The owners of the capital goods or the investors acquired no claims and incurred no obligations towards third parties. The advantages and disadvantages were the same. If we look at the case of Roscius Gallus ‘Comoedus’ and Fannius Chaerea, we find even more resemblances. Roscius reached an agreement with Q. Flavius, who had killed Panurgus, the slave belonging to Chaerea that Roscius and Chaerea had jointly exploited. Flavius, however, did not demand a satisdatio amplius non peti from Roscius Gallus, from which Cicero concluded that the estate given by Flavius to Roscius to avoid litigation was not intended to compensate both partners since it implied that Chaerea retained the right to sue Flavius in his own name.1321 The case shows that satisdationes were used to cover agency through socii as well as through procuratores.1322 The specific mechanism of Roman agency through socii, therefore, was not different from agency through procuratores. The principal was never bound by the actions of his agent and did not acquire any claims on third parties. Third parties had no need to know who stood behind the agent with whom they were doing business since this agent was personally liable in solidum for the contracts he made. Conversely, the interests

1321 CICERO, Rosc. Com. 35-36. Of course, Cicero’s explanation is misleading. Panurgus was Chaerea’s slave, therefore, Roscius could only sue Flavius in Chaerea’s name, either as procurator or as cognitor. Flavius may have made a mistake, but it seems hardly credible that the compensation he agreed to give in order to avoid litigation was intended only for Roscius and not for Chaerea. 1322 A satisdatio amplius non peti should not be confused with a pactum de non petendo with a debtor, which we have seen that it did not bind other socii. A pactum de non petendo was normally grounds for an exceptio if the creditor who had concluded the pactum broke the agreement and sued his debtor. Dig. II, 4, 27 states that such an exceptio would not be given against a socius of the creditor. Therefore, if a socius shared the same claim (e.g. because he was adstipulator) he continued to have the full right to sue his debtor. Conversely, a satisdatio amplius non peti was simply a guarantee that there would be no further claims. If further claims were brought nevertheless, they were entirely valid but the debtor could take redress on the satisdator.

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of the principal were also well protected, since his agent was both liable towards him and to all third parties involved. Only total bankruptcy of the agent could possibly endanger these interests. The problem of corporate capacity. The lack of corporate capacity is generally considered today as a serious handicap. Hopkins asserts that ‘even if Roman land-owners had wanted to invest in business, they faced one difficulty which constituted a serious obstacle to economic growth. The Romans never evolved a legal form for commercial or manufacturing enterprises similar to our joint stock company, which had the advantage of limiting investor’s liability, and of preserving the business as a unit beyond the death of its owner’.1323 It would be a mistake to interpret the exceptional cases of corporate societates as steps towards a generalisation of incorporated societates. The societates uectigalium and the few other incorporated societates that existed under the Empire were not granted this privilege to simplify activities or to further the private interest of the socii, but to safeguard vital public services. If taxes were to be farmed out, the state had to make sure that the companies who farmed them were stable and would not dissolve whenever one of their partners died. Analysing the legal construct of societas from the viewpoint of our corporate enterprises can only lead us to the conclusion that Roman ‘business law’ was a miserable failure. However, this perspective yields only a very limited view of its possibilities. Societas covered such a wide field of various arrangements that it would be wrong in the first place to think of a societas as an enterprise or a company in itself. The emphasis of societas lay not on the activities deployed or on the organisation set up to conduct these activities but on the personal relation between socii. The purpose of a societas was the distribution of profit and loss (communicare damnum et lucrum). From a legal point of view, societas manifested itself primarily post factum, when profits and losses had to be distributed. The actual management of an enterprise could be left entirely in the hands of one ‘executive’ partner. Actions taken by any such partner had no direct legal consequences for any other partner. Of course, in many cases societates were created for the joint exploitation of enterprises, as we saw happening between Naevius and Quinctius.

1323

HOPKINS (1978), p. 53.

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In cases like these, corporate capacity might have increased the cohesion of the enterprise and facilitated the organisation and allocation of liabilities. However, the deployment of common slaves as institores or independent managers cum peculio could go a long way to remedy the lack of corporate capacity when necessary. The very fact that Quinctius chose Naevius as a partner-entrepreneur instead of simply appointing a slave-bailiff and a freedman procurator indicates that the arrangement had its own advantages. We don’t know the exact arrangement under which Panurgus worked for Chaerea and Roscius Gallus. Basically, there are three possibilities. If Roscius hired out Panurgus, the actio locati conducti regulated liabilities between Roscius and the contractor who hired Panurgus, while the actio pro socio regulated liabilities between Roscius and Chaerea. If Panurgus hired himself out, his owner Chaerea was liable under the actio institoria or the actio de peculio. Chaerea would then have the actio locati conducti against Panurgus’s contractor and Roscius could use the actio pro socio against Chaerea to make sure that he would get his share. If Chaerea had partly sold Panurgus to Roscius, both would be liable under the actio institoria or de peculio and both could avail themselves of the actio locati conducti against the contractor who hired Panurgus while the actio pro socio allowed them to take redress on each other. The case nicely illustrates how societas could cover a wide variety of arrangements, each with its own typical division of duties and liabilities. Not all societates concerned the long-term common exploitation of a specific enterprise. Societates unius rei, created for a single venture, provided an important device for organising a temporary co-operation. An example is offered by Cato’s societas with fifty ship-owners. There is no question here of a durable joint enterprise. Cato and the fifty traders simply joined hands to minimise the risks involved in the overseas merchant venture. When the journey was over and Cato’s loan to finance the venture repaid, the societas would automatically be ended. To accord corporate capacity to such a temporary co-operation would have been superfluous and undesirable. It is highly unlikely that any of Cato’s partners would have wished to give up his independence in order to create a corporate enterprise. The slow and difficult development of corporate enterprises in Early Modern Europe sheds an interesting light on the problem of Roman societas and its lack of corporate capacity. Although an early form of corporation with anonymous shares existed as early as the fourteenth century,

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the first corporate companies in the modern sense of the word date from the sixteenth century. However, corporate enterprises continued to be exceptional until well into the eighteenth century. Even the larger enterprises were usually family firms employing no more than twenty or thirty employees. Corporations were formed only when the capital needed for a specific enterprise was too much to be raised by one family or a few reliable partners.1324 Despite the possibility of limited partnerships (‘société en commandite’) and corporate enterprises, most businessmen preferred to set up family-firms complemented by loose associations with other businessmen concerning semiregular co-operation. A small commission was charged when one businessman acted as agent for another but this was never very substantial. The main advantage of such occasional co-operation was that the services provided were reciprocal. From that perspective, the co-operation did not rely on a formal contract, but on personal trust and reputation.1325 Likewise business associations between the Maghribi traders in medieval Cairo were usually conducted without relying on legal contracts. As a rule, the Maghribi traders depended on relations based on mutual trust. Here too, business associates serving as agents were rewarded by commissions.1326 So in general societas sanctioned various forms of co-operation, some of which clearly would not benefit from being accorded corporate capacity. Societas primarily offered a platform on which socii could create any organisation or structure they wanted, using legal and factual arrangements that were not subject to the actio pro socio. Above all, however, societas increased the stability of economic networks of amici and relatives, because it sanctioned any kind of co-operation in which partners shared loss and profit, regardless of the actual form in which this cooperation manifested itself.

1324

BRAUDEL (1988-1990) II, p. 413-417. BRAUDEL (1988-1990) II, p. 130-137. We may note that, according to Roman law, the very fact that a commission was charged for a consensual arrangement would have implied that a societas had been formed. 1326 GREIF (1989a), p. 109. 1325

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RECOMMENDATIONS AND GRATIA.

Universalism versus particularism. Mutual gratification was crucial in Roman friendship. The connection between favours and counter-favours was so strong that gratia not only meant ‘gratitude’ and the ‘desire to reciprocate’ but also ‘influence’. By giving favours a person could increase his influence on others. Influence served as important social and political capital that could be used to distribute favours to which one did not have direct access. Boissevain described the practice as brokerage.1327 The use of influence to further one’s own interests or those of others was the cornerstone of successful management of personal networks in the Roman world. The Roman Late Republican state was firmly based on universalist institutions. In principle, every Roman citizen had the right to be a candidate in the elections for any magistracy provided he met a set of impersonal criteria such as, for instance, membership of the prima classis or of the ordo equester. The people duly elected all magistrates. Membership of the senate followed any magistracy, but was subject to approval by elected magistrates (the censors). Likewise, membership of the ordo equester was not hereditary but was granted by the censors and was supposed to reflect moral integrity and economic independence. All proposals of law were presented to the people. Every citizen had the right to vote both in the elective and the legislative assemblies. Every citizen, with the exception of senators, had the right to bid for state contracts. In theory, the law was the same for every one. No citizen could be condemned without a proper trial, and so forth. However, at the same time a parallel hierarchy of personal networks based on family, instrumental friendship and patronage manipulated the Republic’s formal institutions.1328 This was not an easy game and the grip

1327

BOISSEVAIN (1969); BOISSEVAIN (1974), p. 147-169.. On patronal systems as ‘addenda’ to universalist systems see EISENSTADT & RONIGER (1984), p. 184-200. See also LANDÉ (1977), p. xxi-xxiii and GELLNER (1977), p. 4 on the conflict between universalist institutions and friendship/patronage as addenda. Compare also KETTERING (1986), p. 73 noting that patron-broker-client ties operate inside the formal framework of institutions. 1328

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of the mighty few on the system was always provisional and insecure. The joint efforts of Caesar, Pompey and Crassus, for instance, could not prevent Bibulus from being elected consul in 59. The senate and the people might be influenced, but not forced, and they often stubbornly refused to be swayed by force, money or prestige.1329 Nevertheless, the defeats suffered by various oligarchs were the consequence of the continuous struggle for power between the principes and their respective cliques and factions, each trying to force their objectives through the tortuous institutional fabric of the Republic.1330 Bibulus carried the day not just because he was universally recognised as the better candidate, but because he was able to muster enough support against the formidable association of Pompey, Caesar and Crassus. Although networks of patronage and friendship could not guarantee a person’s hold on power, the lack of such a network effectively excluded him from power and political success. The absence of alternatives such as political parties1331 as in modern western type democracies, or relatively open exams as in ancient China,1332 together with the almost total absence of any effective government control gave full scope to patronage, friendship and family as the sole means of setting up more or less operational networks to conduct politics and to manage or manipulate the official system. In fact, this parallel system offered the opportunity even to to outsiders – such as, for instance, women – to influence political decisions.1333

1329

See BRUNT (1988b); MILLAR (1984); MILLAR (86); MILLAR (1998); YAKOBSON (1992); YAKOBSEN (1999); 65-123; DRUMMOND (1999). 1330 On this struggle of power see the classics TAYLOR (1949) and SYME (1939). I agree with Brunt, however, that neither amicitiae, nor factiones (whatever the difference between them) among senators were very stable configurations. They should be considered as continually shifting alliances, rather than enduring allegiances. Compare e.g. the client network of the French nobleman Henri d’Oppède described by KETTERING (1986), p. 40-67, and her conclusion: ‘Membership in a clientele was necessary for political advancement and clientele hopping was essential to political preferment’ (ibid. p. 55-56). The picture is one of ‘multiple patrons –rapid mobility’ instead op permanent fidelity to a single patron (ibid. p. 58-59). See also BOISSEVAIN (1974) passim for the inherent instability of personal social networks. 1331 Needless to say, political parties themselves are not immune to patronage or nepotism. Nevertheless, conceptually they constitute a different framework offering, among other things, more stability in the actual working of the political system of a state. 1332 See SALLER (1982), p. 111-116. 1333 See e.g. DIXON (1983).

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The endemic favouritism of the Roman social and political order is not surprising as such. It seems hardly more than a truism to say that the weaker a state is – in the sense that it is unable to guarantee the rights and duties of its citizens – the more scope it offers for interventions by powerful or influential private persons. Shatron Kettering summarises the argument by claiming that ‘Patron-broker-client ties and networks were a way of organizing and regulating power relationships in a society where the distribution of power was not completely institutionalized’.1334 All the more remarkable, however, is that even though the fundamental principles of the Roman Republican state – contrary to the absolutist Early Modern French state – were universalist, the tolerance towards and even the positive evaluation of particularist interventions and decisions was considerable. Roman aristocrats not only intervened on behalf of their protégés, friends and family. They prided themselves on the success of their interventions. Roman favouritism was openly displayed. To the Roman mind, there was no dichotomy between an aristocrat’s public social role on the one hand and his personal obligations of reciprocity and loyalty towards family, friends and protégés on the other.1335 Boissevain described how personal ‘raccomandaziones’ were a common practice in Sicily in the 1960s, but no modern politician would venture to publish a selection of his best-written recommendations1336, such as Cicero and many other prominent Roman senators did. The thirteenth book of Cicero’s letters to his friends – the only one we know for sure that he prepared himself for publication – consists entirely of letters of recommendation.1337 Pliny also included commendationes in the publication of his letters, as did Fronto, Symmachus and Libanius.1338 In fact, the letter of recommendation was a recognised subgenre of epistolary writing. A Hellenistic handbook of writing distinguished 21 categories of letters, one of which was the letter of recommendation. Bornecque noted that many of Cicero’s letters of recommendation are metrical.1339 It comes as

1334

KETTERING (1986), p. 72-73. cf. SALLER (1982), p. 26; VEYNE (1976), p. 411. Contra cf. HELLEGOUARC'H (1963), p. 570; MOUSSY (1966), p. 390-391. 1336 BOISSEVAIN (1969), p. 25; BOISSEVAIN (1969), p. 381; BOISSEVAIN (1974), p. 151: the patron-broker uses calling-cards with a written recommendation of his ‘carissimo amico’on the back. 1337 See CICERO, Att. XVI, 5, 5; DENIAUX (1993a), p. 18-19; COTTON (1986), p. 460. Most likely, Tiro took care of the eventual publication after Cicero’s death. 1338 PAVIS D’ESCURAC (1992). 1339 On commendationes as an epistolary genre see DENIAUX (1993a), p. 17-22. 1335

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no surprise, therefore, that papyri, inscriptions and ostraka show that the practice of writing letters of recommendation was ubiquitous.1340 However, it is not enough to explain the publication of these letters by referring to their literary exemplary character or to the widespread nature of the practice. The very fact that they could be published and that the genre of the letter of recommendation could develop in the first place testifies to the fact that personal recommendations were not considered at variance with the social code of the aristocrat. On the contrary, to the Roman upper class mind these recommendations reflected conformity with to the moral obligations of gratia and fides towards friends, patrons and clients. At the same time, the letters reflected more than moral integrity alone. They formed a magnificent and direct display of the influence their author could wield. Since, as we have seen, dignitas ultimately depended on a person’s ability to control resources needed or wanted by others, the letters of recommendation indirectly displayed their author’s dignitas.1341 Of course, the system was not confined to the elite. It followed the usual vertical ramifications of patronage whereby clients themselves became patrons serving as ‘brokers’ for their peers and social inferiors. The objects of recommendation. Recommendations were used for a variety of purposes. Economic interests were among the prime motivations why the support of influential friends and patrons was requested. It is often difficult, however, to reconstruct the true object of the recommendations that have come to us. Only a few letters of recommendation carry a precise request or list the motives of the commendatus. General recommendations.

By far most attested commendationes were personal introductions.1342 They introduced a commendatus who was usually praised for his personal qualities of liberalitas, uoluntas, bonitas, humanitas, fides and so forth. Gratia was often adduced in the double sense of gratitude – the

1340

On letters of recommendation attested in non-literary texts see COTTON (1981b). See SALLER (1982), p. 126; cf. MACMULLEN (1986); HELLEGOUARC’H (1963), p. 407. 1342 Cf. COTTON (1981b), p. 5; COTTON (1986), p. 443; SALLER (1982), p. 108-110, 162-164. 1341

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commendatus is a gratissimus – and influence – he was gratiosus (influential). By implication the person to whom the recommendation was addressed would benefit in turn if he’d agree to help the commendatus, since the latter was both able and willing to return favours received. Naturally, the amicitia or other close relationship between the commendatus and the commendator was referred to and the worthiness of the commendatus as a friend was explicated, usually by emphasising his fides and gratia.1343 In some cases, the commendatus was introduced as a friend of a friend.1344 To spur the addressee even further, the commendator assured him of his own gratitude should he grant the commendatus’s requests.1345 Although many recommendations were superficial and were probably not intended to carry much weight1346, the effective persuasive strength of general personal recommendations should not be underestimated. The emphasis on the fundamental qualities of fides and gratia implied a promise of future returns that constituted the essence of Roman instrumental amicitia.1347 A considerable number of recommendations requested that the commendatus be accepted into the amicitia of the addressee. Thus Cicero asked M. Acilius Caninus to accommodate C. Avianius Philoxenus and to accept him into the circle of his intimates (habeasque in numero tuorum).1348 Q. Minucius Thermus was requested to receive Curtius Mithres into his fides and to allow him into the circle of his intimates (ut … recipias in fidem, habeasque in numero tuorum).1349 A similar request was made on behalf of a freedman of L. Cossinius, Anchialus.1350 The expressions in fidem recipere and in numero suorum habere belong to the language of patronage and it may be no coincidence that the beneficiaries were freedmen and peregrines. ‘To hand over’ – tradere – was another expression used for the same purpose. Thus Cicero’s young friend

1343

DENIAUX (1993a), p. 34-36. E.g. CICERO, Fam. XII, 6, 3; 6a. 1345 Note however, that approximately one third of Cicero’s commendationes don’t carry thanks from Cicero to the addressee. See DENIAUX (1993a), p. 49-50. 1346 DENIAUX (1993a), p. 44-46. 1347 Cf. SALLER (1982), p. 108-109. 1348 CICERO, Fam. XIII, 35. 1349 CICERO, Fam. XIII, 69. 1350 CICERO, Fam. XIII, 23: pergratum mihi feceris si eum in amicitiam tuam receperis. 1344

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Trebatius Testa was recommended to Caesar with the words ‘I hand him all over to you, from hand to hand (de manu … in manu), as the expression goes’.1351 The term tradere reappears in his introduction of L. Genucilius Curvus to Q. Minucius Thermus.1352 Other letters envisage a new friendship between commendatus and addressee as the inevitable result of the latter’s benevolence. Thus in Cicero’s letter of recommendation to L. Munatius Plancus on behalf of C. Ateius Capito, Cicero assured Plancus that Capito, a uir gratissimus, officiosissimus and optimus, would become his friend (necessarius).1353 His recommendation of M. Bolanus to Ser. Sulpicius Rufus carried the same promise.1354 In Capito’s case, Cicero’s intentions worked out as planned. Two years later Capito was member of the commission for the foundation of a colony at Buthrotum (where Atticus had his best and largest estates) under the charge of L. Plotius Plancus, Munatius’s brother and Cicero wrote a commendatio to Capito to ask him to use his influence with his brother on behalf of Atticus and Buthrotum.1355 Some letters of recommendation refer vaguely to the business interests of the commendatus. Thus the negotia of the knight Sex. Aufidius were recommended to the governor of Africa.1356 Caerellia’s res, nomina and possessiones, which she had inherited at least in part from the businessman Vennonius, were recommended to the governor of Asia.1357 L. Manlius Sosis’s negotia uetera in Sicily were recommended to the governor M. Acilius Caninus.1358 Requests directed to provincial governors for the protection of the interests of commendati were quite common. Thus P. Servilius Isauricus

1351

CICERO, Fam. VII, 5, 3: totum denique hominem tibi ita trado, de manu, ut aiunt, in manu

tuam 1352

CICERO, Fam. XIII, 53. Gelzer and Deniaux interpret the expression as the remnant of an ancient formal ritual by which a patron ‘transferred’ his client to another patron. (GELZER (1912), p. 54-56; followed by DENIAUX (1993a), p. 36-44). See contra supra p. 53. 1353 CICERO, Fam. XIII, 29, 8. Plancus is asked to intervene with Caesar to allow Capito to keep the inheritance left by T. Antistius (worth 15 million sesterces), whose goods had been proscribed. 1354 CICERO, Fam. XIII, 77. 1355 CICERO, Att. XVI, 16c. On the colonisation of Buthrotum and Atticus’s and Cicero’s endeavours to stop it, see DENIAUX (1975). 1356 CICERO, Fam. XII, 27. 1357 CICERO, Fam. XIII, 72. 1358 CICERO, Fam. XIII, 30.

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was asked to protect Caecina’s affairs (res) in Asia.1359 Ser. Sulpicius Rufus’s protection was requested for the affairs and fortune (res et fortuna) of (among others) Lyso from Patrae.1360 A letter of recommendation written to the governor of Sicily A. Allienus, solicited his protection in the affairs (res) of the children of C. Avianius Flaccus.1361 Q. Cornificius, governor of Africa, was asked to watch over L. Aelius Lamia’s business, procurators, freedmen and slaves (negotia, procuratores, liberti, familia).1362 The letter on behalf of Aelius Lamia illustrates another more interesting kind of recommendation, in which a person’s procuratores or slaves are recommended. They show how separate units of economic organisation are integrated into extended networks of instrumental friendship and patronage. When the dealer in art, M. Aemilius Avianianus, had to go away on business to Cibyra, he left his house and affairs in the hands of his freedman C. Avianius Hammonius. Cicero recommended Hammonius and Aemilius’s house and belongings (domus et res familiares) to the governor, Ser. Sulpicius Rufus.1363 He also introduced Atticus’s procuratores Philogenes , and M. Seius to the governor of Asia, Q. Minucius Thermus, and recommended them together with Atticus’s negotia.1364 T. Pinarius (a cousin of Caesar’s) was procurator for a certain Dionysius’s accounts and affairs (rationes et negotia) in Africa. A letter of recommendation from Cicero introduced Pinarius to the governor Q. Cornificius.1365 Cn. Otacilius Naso had negotia on Sicily, which were managed by three freedmen. Cicero recommended both Naso’s negotia and his freedmen to the governor M. Acilius Caninus.1366 A. Trebonius’s negotia in Cilicia were recommended together with his slaves, freedmen and procurators (familia, liberti, procuratores).1367 We have already encountered the same description for Aelius Lamia’s organisation in Africa.1368 L. Egnatius Rufus’s affairs (negotia) in Asia were managed by

1359

CICERO, Fam. VI, 8, 2. CICERO, Fam. XIII, 29; 24. 1361 CICERO, Fam. XIII, 79. 1362 CICERO, Fam. XII, 29. 1363 CICERO, Fam. XIII, 21; 27. 1364 CICERO, Att. V, 20, 10. 1365 CICERO, Fam. XII, 24. 1366 CICERO, Fam. XIII, 33. 1367 CICERO, Fam. I, 3. 1368 CICERO, Fam. XII, 29. 1360

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a slave, Anchialus, whom Cicero recommended, together with his master’s interests, to the proquaestor of the province, P. (?) Appuleius.1369 In Cilicia, Egnatius used the services of his friend and procurator L. Oppius M. f., a resident Roman businessman in Philomelium. Cicero recommended both Oppius’s and Egnatius’s negotia to the legate Q. Gallius and to the governor Q. Marcius Philippus.1370 We can safely assume also that the introduction on behalf of C. Curtius Mithres1371 and L. Cossinius Anchialus1372 were at least in part intended to support the organisational network of their respective patrons, C. Rabirius Postumus and L. Cossinius. The recommendation of key figures in one’s own organisational network was standard procedure. In 44, Cicero commended the procuratores of his estates near Cumae to Atticus’s wife, Pilia.1373 Brutus wrote a commendatio to Cicero on behalf of his procuratores in Cappadocia.1374 Caelius Rufus wrote a recommendation to Cicero for the procuratores he had sent concerning a syngrapha Sittiana. At least in part it seems to have been Caelius’s intention that Cicero would in turn recommend the men to Adiatorix, tetrarch of Galatia.1375 Brutus also wrote a recommendation for the negotiatores M. Scaptius and P. Matinius, to whom the city of Salamis on Cyprus owed a huge sum of money. Cicero was not told that Scaptius and Matinius were really Brutus’s straw men.1376 The case is all the more interesting because it raises the question of how many other recommendations for negotiatores were actually made on behalf of prominent senators hiding behind the nominal commendati. It is hard to imagine that the obscure knight T. Pinnius was the only source of the eight million sesterces, which the city of Nicaea in Bithynia owed him.1377 Of course, an apparently general and vague recommendation may serve specific purposes. The recommendation on behalf of Caerellia clearly hints at what was expected by referring

1369

CICERO, Fam. XIII, 45. CICERO, Fam. XIII, 43; 44; 73; 74. The letter to Q. Gallius (Fam. XIII, 43) also requested that Oppius would be allowed into Gallius’s friendship (ut diligas). 1371 CICERO, Fam. XIII, 69. 1372 CICERO, Fam. XIII, 23. 1373 CICERO, Att. XIV, 16, 1. 1374 CICERO, Att. VI, 1, 14; 3, 6-7 1375 CICERO, Fam. II, 12, 2; VIII, 2, 9; 4, 5; 8, 10; 9, 3; 11, 4. 1376 CICERO, Att. V, 21, 10-13; VI, 1, 4-8; 2, 7-9; 3, 5. See supra p. 130 on the case. 1377 CICERO, Fam. XIII, 61. See also CICERO, Fam. XIII, 56. 1370

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to Vennonius’s inheritance and a senatorial decree in connection with it. Nevertheless, the actual request is framed in the vaguest terms possible.1378 The recommendation that Cicero wrote on behalf of Atticus to C. Antonius Hybrida as governor of Macedonia-Achaea was specifically meant to obtain Antonius’s support in Atticus’s dispute with the city of Sicyon, but the recommendation as such was kept vague. Presumably, Cicero’s recommendation to Antonius’s predecessor C. Octavius, of which we hear in a letter to Atticus, was no more specific.1379 The recommendation for Servilius Strabo unmistakably refers to a specific problem, but the nature of the case is not explained.1380 A recommendation on behalf of L. Papirius Paetus written by Cicero to Atticus mentions Paetus’s negotia without further specification. The context of the letter, however, strongly suggests that the commendatio was in fact intended to obtain Atticus’s help with the inheritance that Paetus had received from his brother Ser. Claudius.1381 The vagueness of these letters is in line with what seems to have been a general characteristic of the genre itself. Epistolary recommendations served first and foremost to introduce the commendatus to the addressee. The specification of a request was usually left to the beneficiary who was introduced in a letter.1382 In some cases, a recommendation hints that the expected help was of a practical and substantial nature. A good number of letters request for help (adiumentum) or refer to the benefit that the commendatus expected to reap from his recommendation. Thus Cicero hoped that the recommendation he wrote on behalf of T. Agusius to the governor of Asia, P. Servilius Isauricus, would be of use and of help (usum et adiumentum).1383 A considerable number of recommendations request that the addressee would accommodate (commodare) the commendatus.1384

1378 CICERO, Fam. XIII, 72: Peto igitur ut memineris te omnia quae tua fides pateretur mihi cumulate recepisse. … Quod reliquum est, sic uelim existimes, quibuscumque rebus Caerelliae benigne feceris, mihi te gratissimum esse facturum. 1379 CICERO, Fam. V, 5; Att. II, 1, 12. On the dispute with Sicyon see VERBOVEN (1993b). 1380 CICERO, Fam. XIII, 64. 1381 CICERO, Att. I, 20, 7; 2, 1; 12. 1382 See COTTON (1981b), p. 5. 1383 CICERO, Fam. XIII, 71. 1384 CICERO, Fam. XIII, 70 (T. Ampius Menander); Fam. XIII, 35 (C. Avianius Philoxenus); Fam. XIII, 13 (L. Castronius Paetus); Fam. XIII, 33 (M. Clodius Archagetus); Fam. XIII, 32 (C. Clodius Philo); Fam. XIII, 69 (C. Curtius Mithres); Fam. XIII, 53 (L. Genucilius Curvus).; Fam. XIII, 37 (Hippias Philoxeni f.); Fam. XIII, 13, 9 (societas Bithynica).

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The recommendation on behalf of C. Anicius requests that the governor of Africa, Q. Cornificius, see to it that Anicius could arrange his affairs as conveniently as possible (commodissime).1385 There was a clear preference, therefore, for general recommendations in which a person was introduced and/or his interests recommended even in cases when the purpose of a recommendation was quite specific. A specific solution for a specific problem was rarely openly suggested. Most recommendations solicit a vague ‘assistance’ from the addressee.1386 Nevertheless, it would be wrong to suspect a specific problem behind each general recommendation. The majority of recommendations are likely to have been just what they seemed to be: introductions by means of which a commendatus was brought into contact with a government official or with another influential person that controlled resources which the commendatus needed or wanted. Specific recommendations.

Notwithstanding the above, in a number of cases a specific reason can be ascertained for an attested recommendation. A considerable number of commendationes concern debts.1387 Thus Cicero wrote a recommendation on behalf of M. Anneius in connection with a debt owed to him by the city of Sardis.1388 L. Lucceius got a similar recommendation in connection with a debt owed to him by the city of Byllis1389, T. Pinnius in connection with money owed to him by Nicaea1390, Atticus in connection with his claim on Sicyon1391, C. Flavius in connection with a claim on Dyrrhachium1392 and Cluvius from Puteoli in connection with claims on

1385

CICERO, Fam. XII, 21. Cf. COTTON (1986), p. 41. 1387 Not all of these debts are necessarily the result of loans. See e.g. the case of Tullius Montanus. 1388 CICERO, Fam. XIII, 55; 57; cf. MIGEOTTE (1984), p. 313-314. 1389 CICERO, Fam. XIII, 41; 42. DENIAUX (1993), p. 516-519 identifies him with L. Lucceius Q. f. (pr. before 62) because of his close association with Pompey. Note, however, that we also know a L. Lucceius M. f. who was a faenerator in 50. (Cicero, Att. V, 21, 13). 1390 CICERO, Fam. XIII, 61. MIGEOTTE (1984), p. 337-338. 1391 CICERO, Fam. V, 5, Att. II, 1, 12. MIGEOTTE (1984), p. 79-81. 1392 CICERO, Ad. Brut. XIV, 4. MIGEOTTE (1984), p. 119-120. 1386

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five cities in Caria.1393 Brutus recommended his own procuratores in connection with the huge sums of money owed to him by the city of Salamis and king Ariobarzanes III of Cappadocia1394 and M. Caelius Rufus did the same with his syngrapha Sittiana1395. The recommendation on behalf of Caerellia mentions unspecified claims (nomina) in Asia. The businessman M. Laenius had claims in Bithynia-Pontus for which he received a recommendation from Cicero directed to the governor P. Silius.1396 L. Titius Strabo had a claim on a certain P. Cornelius regarding which he was recommended by Cicero to the governor of Gallia Cisalpina, Brutus.1397 A passage in Cicero’s second oration against Verres mentions how eager creditors generally were to please provincial legates whose influence (gratia) was most useful to them.1398 Conversely, we see that the influence of amici could be used to obtain remission of debts. Thus Atticus intervened on behalf of a certain Funisulanus who owed money to Cicero.1399 In the obscure case of the Oppii from Velia, Atticus also intervened on behalf of the debtor.1400 L. Tullius Montanus, supported by Cicero’s son, successfully pleaded with Cicero to intervene with the city prefect L Munatius Plancus to obtain a remission of a year for a debt he owed as surety for L. Flaminius Flamma in a case of confiscated property bought by Flamma.1401 Q. Axius first appealed to Cicero to obtain a loan for his son and then, when his son could not repay the loan, pleaded for a remission of a year.1402 Dolabella wrote a letter of recommendation to Cicero on behalf of Curtius Nicias who was accused of fraud by a certain Vidius and over which case Cicero had been appointed judge.1403

1393

CICERO, Fam. XIII, 56; MIGEOTTE (1984), p. 254-259. CICERO, Att. V, 21, 10-13; VI, 11, 4-8; 2, 7-9; 3, 5; MIGEOTTE (1984), p. 254-259. 1395 CICERO, Fam. II, 12, 2; VIII, 2, 9; 4, 5; 8, 10; 9, 3; 11, 4. 1396 CICERO, Fam. XIII, 63. 1397 CICERO, Fam. XIII, 21; 27. 1398 CICERO, 2 Verr. I, 74: erant non nulli togati creditores Graecorum, quibus ad exigendas pecunias improbissimi cuiusque legati plurimum prodest gratia. 1399 CICERO, Att. X, 15, 1. 1400 CICERO, Att. VIII, 13, 5; 13a, 1; 22, 2; 26, 3; VIII, 7, 3; X, 4, 12; 7, 3. See supra p. 162 on the case. Whether the Oppii were Terentia’s debtors or vice versa does not alter Atticus’s role. 1401 CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1. 1402 CICERO, Att. XII, 2; 13, 2; 15, 4. 1403 CICERO, Fam. IX, 10, 1-2. 1394

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Another frequently attested subject of recommendations concerns property (usually rural property). Atticus’s res epiroticae, which were recommended by Cicero to the governor Ser. Sulpicius Rufus, consisted almost entirely of large estates for extensive cattle breeding.1404 Possibly, Cicero’s recommendation on behalf of L. Cossinius Anchialus, whose patronus is known to have been one of Varro’s synepirotae, also concerned landed property in Epirus.1405 The inheritance which Caerellia received from the businessman C. Vennonius, recommended by Cicero to the governor of Asia, included property (possessiones).1406 The recommendations on behalf of C. Curtius Mithres1407 and L. Genucilius Curvus1408 also concerned landed property in Asia. The letters of recommendation written on behalf of M. Fabius Gallus concern an estate in Herculaneum that he owned in common with his brother and which the latter tried to sell against his wishes.1409 C. Albinius (or Albanius) had acquired large tracts of land as payment of debts under Caesar’s aestimatio-law. When he threatened to lose them again for the settlement of Caesar’s veterans, Cicero intervened and wrote a letter of recommendation to one of the prefects charged with the division of the land among the veteran soldiers.1410 The same thing threatened to happen in Buthrotum, where Atticus’s estates were located, and again we find Cicero writing several letters of recommendation to protect both Atticus’s and the city’s interests.1411 An intervention from Atticus saved the possessions of L. Iulius Calidus in Africa and L. Saufeius in Italy from confiscation and distribution in 43.1412 A letter of recommendation by Cicero was intended to lift the provisional sequestration of the possessions of Hippias, son of Philoxenus from Caleacte.1413 Atticus succeeded in obtaining immunity

1404

CICERO, Fam. XIII, 18. On Atticus’s estates in Epirus see VARRO, R. R. II, praef. 6; 1, 25; 2, 2; 5, 1; DENIAUX (1993b), p. 265-266. 1405 CICERO, Fam. XIII, 23. On Cossinius see DENIAUX (1993a), p. 485-487; WISEMAN (1971), p. 227. 1406 CICERO, Fam. XIII, 72. 1407 CICERO, Fam. XIII, 69 (concerning estates at Colophon). 1408 CICERO, Fam. XIII, 53 (concerning estates at the Hellespont). 1409 CICERO, Fam. II, 14; IX, 25, 2-3; XIII, 59. 1410 CICERO, Fam. XIII, 8. Caesar’s aestimatio-law allowed debtors to repay their debts by a transfer of property assessed at pre-war prices. See FREDERIKSEN (1966); VERBOVEN (1997a), p. 48-50 for Caesar’s legislation to combat the credit crises 1411 CICERO, Att. XVI, 16a; 16b; 16d; 16e; 16f. See DENIAUX (1975) on the case. 1412 NEPOS, Att. XII, 4. 1413 CICERO, Fam. XIII, 37.

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from taxes for a piece of public land occupied by Terentia.1414 M. Caelius Rufus made a similar request to Cicero for the agri fructuarii of a number of cities in Cilicia leased to a certain M. Feridius.1415 Recommendations concerning trading interests are much less frequently – or at least much less clearly – attested. The main exceptions are the recommendations on behalf of the important Sicilian grain merchant, C. Avianius Flaccus, who received special privileges from Pompey and his legate L. Titius.1416 Perhaps we should add Cicero’s recommendation of Caerellia’s interests in Asia, which she inherited from the businessman Vennonius and which may have partly consisted of articles of trade.1417 Recommendations pertaining to manufacture or artisans are extremely rare. Only three recommendations – all concerning the Sicyonian Avianii, who were producers and dealers in art – can with any certainty be related to manufacture. Two of these recommendations are in fact general recommendations regarding the freedman procurator and the domus et res familiaris of M. Aemilius Avianianus of Sicyon.1418 The third recommendation was written to C. Memmius on behalf of C. Avianius Evander, a famous sculptor and freedman of M. Aemilius Avianianus, requesting that Evander be allowed to stay for a while in the funeral monument of the Memmii.1419 The lack of commendationes concerning trade and manufacture may be misleading. General personal introductions of businessmen may conceal interests in these two fields of the economy. We know, for instance, that Curtius Mithres’s patronus, C. Rabirius Postumus, was engaged in the trade of wine and perhaps other articles. Mithres’s estate in Colophon, which was recommended by Cicero, may well have produced part of this wine.1420 M. Bolanus, who was given a general recommendation addressed to the governor of Achaea, Ser. Sulpicius Rufus, was a Roman resident in Narona, the main trading emporium of Illyria.1421 A Late

1414

CICERO, Att. II, 15, 4. CICERO, Fam. VIII, 9, 4. The letter is difficult to interpret. See SHACKLETON BAILEY (1977a) I, p. 395. 1416 CICERO, Fam. XIII, 75. On the Avianii Flacci see DENIAUX (1993a), p. 240-242, 462-465. 1417 CICERO, Fam. XIII, 72. 1418 CICERO, Fam. XIII, 21; 27. 1419 CICERO, Fam. XIII, 2. 1420 See DENIAUX (1993a), p. 259, 490-492. 1421 CICERO, Fam. XIII, 77; DENIAUX (1993a), p. 269-270. 1415

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Republican inscription suggests that A. Trebonius, who received a general recommendation addressed to the governor of Cilicia, was engaged in the frankincense trade.1422 Nothing would prevent the negotiatores M’ Curius from Patrae1423, T. Manlius from Thespiae1424, L. Oppius from Philomelium1425 or M. Laenius1426, all of whom received general recommendations, from being engaged in trade instead of (only) finance. The vague terms negotia or res, which occur frequently in recommendations, may indicate both financial and trading interests.1427 Deniaux suggests that the recommendation regarding Lyso from Lilybaeum concerned the textile workshops that Lyso is known to have owned under Verres, but this is nothing more than an unverifiable hypothesis.1428 Although the few examples of interventions on behalf of merchants and manufacturers show that gratia was useful in the sectors of trade and ‘industry’, the rarity of recommendations concerning these two sectors of the economy cannot be explained away by assuming hidden motives behind general recommendations. A more likely explanation is that virtually all recommendations were written on behalf of members and associates of the elite. In so far as they engaged in business other than the exploitation of rural estates, they usually preferred money-lending, sometimes offering their services as intermediaries for the landed aristocracy.1429 The tax-farmers had powerful friends whose influence they frequently used. When the publicani of Asia requested a revision of their contract with the state they could count on Cicero and Crassus to plead their cause in the senate.1430 They had no hesitation about using this influence to

1422

CICERO, Fam. I, 3; ILLRP 816, 818. CICERO, Fam. XIII, 17; 50. See also Fam. VII, 29; 30; 31. DENIAUX (1993a), p. 487-489. 1424 CICERO, Fam. XIII, 22; DENIAUX (1993a), p. 522-523. 1425 CICERO, Fam. XIII, 43; 44; 73; 74. See DENIAUX (1993a), p. 532-533. 1426 CICERO, Fam. XIII, 63. See DENIAUX (1993a), p. 235-236, 509-511. 1427 See HATZFELD (1919), p. 193-195; NICOLET (1966-1974), p. 358-363; BARLOW (1978), p. 146-147. Contra ROUGÉ (1966), p. 274-291; KNEISSL (1983). 1428 CICERO, Fam. XIII, 34. DENIAUX (1993a), p. 231. Deniaux also believes that CICERO, Fam. XIII, 51 (addressed to a certain P. Caesius) referred to the production and trade of ceramics by P. Messienus. (DENIAUX (1993a), p. 239, 262, 528-529), because pottery stamps carry the names of Messienus and P. Caesius. However, the mark P. Cai(sius) dates from the third century BCE and Messienus was a common name. CIL XI, 6705. 1429 Compare BRAUDEL (1988-1990) II, p. 353-354. 1430 Cf. NICOLET (1971a), p. 83-87; BADIAN (1972), p. 100, 107, 111-112. 1423

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exert pressure on local officials. It comes as no surprise that a number of recommendations concern publicani. Two letters recommend the interests of the societas Bithynica, which had farmed the taxes of Bithynia-Pontus and Asia. They introduce the promagistri of the societas, P. Rupilius, Cn. Pupius and P. Terentius Hispo, to the quaestor and governor of Bithynia-Pontus.1431 When the manceps P. Valerius, active in Cilicia, went bankrupt, his partner P. Volusius and his guarantors M. Anneius, Q. Paconius Lepta and T. Marius, appealed to the governor Cicero to be relieved from their obligations towards the state.1432 A considerable number of recommendations concern inheritances. Remarkably often the testator was a negotiatior. Thus the businessman Q. Turius left his fortune in Africa to six heirs, who were recommended by Cicero to the governor Q. Cornificius.1433 Cicero’s recommendation of the inheritance left by C. Vennonius (left at least in part to Caerellia) has already been mentioned. Cicero recommended L. Manlius Sosis, born in Catana on Sicily but a resident of Naples, to the governor of Sicily concerning the inheritance left by his brother. Presumably both men had been active in growing and exporting grain.1434 L. Mescinius Rufus was given a recommendation concerning the inheritance left by his brother M. Mindius, who had been a businessman in Elis for many years.1435 L. Flavius inherited from a certain L. Octavius Naso, who was a Roman resident in Asia about whom we know only that he died leaving debts to a friend of the Cicerones C. Fundanius. Fundanius managed to get an (illegal) intervention from Cicero’s brother Quintus, who was governor of Asia at the time. Quintus ordered Flavius to pay Naso’s debts. Flavius, however, had influence with Caesar and Pompey and put pressure on Cicero, who sharply (though privately) censured his brother for recommending L. Flavius to him.1436 The freedman L. Nostius Zoilus was heir of his patron L. Nostius, who was presumably a businessman in Asia. Cicero, who was co-heir with Zoilus, wrote a recommendation to the governor of the province.1437

1431

CICERO, Fam. XIII, 9; 65. CICERO, Att. V, 21, 14; Fam. V, 20, 3-4. The matter is extremely complicated. See SHACKLETON BAILEY (1977), p. 467-468. 1433 CICERO, Fam. XIII, 26. 1434 CICERO, Fam. XIII, 30. 1435 CICERO, Fam. XIII, 26; 28. 1436 CICERO, Q. fr. I, 2, 10-11. 1437 CICERO, Fam. XIII, 46. 1432

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C. Maenius Gemellus was a Roman citizen in exile who had become a citizen of Patrae. He had adopted the son of a certain Lyso from Patrae, who was a close guestfriend (hospes) of Cicero’s. Cicero wrote a recommendation to the governor, Ser. Sulpicius Rufus asking him to protect Gemellus’s adopted son and the inheritance left to him by Gemellus.1438 The recommendation on behalf of C. Ateius Capito concerned the inheritance left by T. Antistius, whose goods had been confiscated by Caesar.1439 The recommendation on behalf of P. Silius concerns his inheritance from a certain Turpilia.1440 L. Papirius Paetus inherited the fortune of his brother Ser. Claudius who had lived in Greece for many years and Cicero wrote a recommendation for Paetus to Atticus.1441 The commendati.

The presence of businessmen (negotiatores) or persons who are said ‘to have business interests’ (negotia habere) among the commendati in Cicero’s letters of recommendation is conspicuously high. Cotton distinguishes 25 commendati in this category.1442 Deniaux’s classification is more detailed containing 13 landowners, 10 creditors and financial intermediaries, 4 tax-farmers (of which one was a grain merchant with state contracts (C. Avianius Flaccus)) and 31 ‘autres trafiquants’ in a total of 101 commendati.1443 The number rises even higher when we count the recommendations referred to in Cicero’s letters to Atticus. Roughly 25 to 30% of the attested recommendations concern business or businessmen.1444 The actual percentage must have been higher, since by far the majority of all known recommendations are personal introductions of otherwise unknown individuals. We may conclude, therefore, that recommendations to government officials were the prime beneficium expected by businessmen from their aristocratic friends and protectors. Purpose of commendationes. Gratia was clearly used routinely to further the interests of large landowners, financiers, traders, manufacturers and publicani. The business

1438

CICERO, Fam. XIII, 19. CICERO, Fam. XIII, 29. 1440 CICERO, Fam. VII, 21; Att. XV, 23; 24. 1441 CICERO, Att. I, 20, 4; 2, 1, 12. 1442 COTTON (1986), p. 444, n. 7. 1443 DENIAUX (1993a), p. 213-248. 1444 DENIAUX (1993a), p. 118-204; COTTON (1986), p. 444, n. 7. 1439

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elite thus used its personal networks of patrons, clients and amici in managing their affairs. However, when they turned to their amici, what did they hope to achieve through their influence? Conflict control.

The majority of attested recommendations of which the purposes are known to us relate to conflicts.1445 Control of conflicts is a complex social process in which different phases may be discerned. Only a small minority of conflicts led to trials. As a rule Roman notables tried to avoid becoming involved in trials either as defendant or as plaintiff. A formal accusation always risked becoming a stain on the reputation of the accused, while the plaintiff risked the stigma of illiberalitas.1446 The first step in solving a conflict consisted of appealing to an influential outsider to mediate. Thus Atticus intervened on behalf of Terentia in the controuersia Muluiana, which she had with an unknown publicanus over a lot of public land she had leased.1447 In the case of Cocceius's debt to Cicero, Varro – a common friend– intervened.1448 L. Papirius Paetus was asked to mediate between M. Fabius Gallus and his brother. Papirius had no official powers at the time, but he had auctoritas and gratia he could use.1449 Potential conflicts could be prevented from escalating by an early intervention from amici. Thus Atticus’s intervention on behalf of Funisulanus prevented a possible conflict between the latter and his creditor Cicero, who was clearly vexed because Funisulanus had not yet paid his debt.1450 Governors and other officials had means of coercion at their disposal and accordingly mediation by them was more effective. Cicero pressured king Ariobarzanes III of Cappadocia on behalf of Brutus, convincing the king to repay as much as he could of the interest due. Cicero also mediated between Brutus’s proxy M. Scaptius and the city of Salamis and succeeded in persuading the latter to repay its entire debt at the legal maximum interest rate of 12%. When Scaptius refused to accept the compromise and demanded repayment at the originally agreed (illegal) interest

1445

See COTTON (1986), p. 445. See also CICERO, Fam. XII, 30, 1. Cf. NEPOS, Att. VI, 3; CICERO, Off. II, 64. 1447 CICERO, Att. II, 15, 4. 1448 CICERO, Fam. IX, 4; Att. XIII, 2; 18, 3; 19, 2. 1449 CICERO, Fam. IX, 25, 2-3. See DEMMEL (1962), p. 19-29. 1450 CICERO, Att. XII, 15, 1. 1446

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rate of 48%, Cicero refused to accommodate but he nevertheless forbade the Salaminians to deposit the money in a temple, which would have released the city of its obligations.1451 The timely intervention of a governor could prevent potential conflicts from breaking out. Thus Cicero asked P. Silius to make sure that the city of Nicaea repaid the eight million sesterces it owed to young T. Pinnius, although there is no mention of an overt conflict between the city and her creditor.1452 In connection with M. Anneius’s claim on the city of Sardis, Cicero appealed to the goodwill, authority and efforts (uoluntas, auctoritas and studium) of the governor.1453 In some cases, both parties accepted arbitration.1454 Thus Cicero was arbiter in a conflict between the city of Dyrrhachium, which was in his clientela, and C. Flavius, who was a protégé of Brutus. The latter promptly wrote a strong letter of recommendation on behalf of Flavius to Cicero.1455 A similar arbitration by Pompey in a conflict between L. Lucceius and the city of Byllis had put the city in the wrong. Cicero wrote a recommendation to the governor of Illyria, L. Culleolus, asking him to exert his authority (auctoritas) and if necessary even to use his official powers (imperium) to make sure that the decision was abided by.1456 Mescinius Rufus’s procuratores had been authorised to accept the arbitration of the governor, Sulpicius Rufus, in the dispute with Oppia over the inheritance left by her late husband, M. Mindius. Cicero, accordingly, wrote a letter of recommendation to Sulpicius on behalf of Mescinius.1457 A governor had means to constrain troublemakers. Concerning the inheritance left by Q. Turius, Cicero asked the governor of Africa, Q. Cornificius, to see to it that the deceased’s freedman Q. Turius Eros stopped embezzling parts of the inheritance.1458 Concerning the inheritance Mescinius Rufus received from his brother M. Mindius, Cicero asked the governor Ser. Sulpicius to use his auctoritas and his legal and

1451

CICERO, Att. V, 21, 10-13; VI, 1, 5-8; 2, 7-9; 3, 5. CICERO, Fam. XIII, 61. 1453 CICERO, Fam. XIII, 55; 57. 1454 Cf. Dig. IV, 8, 13, 2; CICERO, Quinct. 17. See now CAMODECA (1999). 1455 CICERO, Ad Brut. XIV, 4. 1456 CICERO, Fam. XIII, 42. 1457 CICERO, Fam. XIII, 26. 1458 CICERO, Fam. XII, 26. 1452

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other powers (cum iure et potestate). Mescinius’s procuratores were authorised to accept Sulpicius as arbiter if necessary.1459 The case of L. Titius Strabo is somewhat special. Cicero wrote a strong letter of recommendation on behalf of Strabo to the governor of Gallia Cisalpina, Brutus, requesting him to make sure that Strabo’s freedman got the money owed to his patron by P. Cornelius. A trial had already been initiated in Rome, but the praetor had referred Strabo to Brutus, probably because P. Cornelius was the citizen of a community in Cisalpine Gaul, where the city praetor had no authority. Remarkably, however, there is no question of a trial anymore in Cicero’s letter to Brutus. Apparently, Strabo counted on Cicero’s influence with Brutus to force Cornelius to pay up.1460 The governor of Asia Q. Minucius Thermus was asked to see to it that the mortgage given by a certain Philocles from Alabanda for a debt he (or his home town?) owed to Cluvius from Puteoli would be transferred to Cluvius’s procuratores. Minucius was further requested to put pressure on the cities of Heraclea and Bargylia to repay their debts to Cluvius. He also had to check that the city of Caunus had indeed repaid its debt to Cluvius by deposition in a temple, as its representatives claimed. If the representatives had lied or if the deposition had not been made according to the correct procedures, Minucius had to make sure that the payment of interest was resumed.1461 Of course, a trial could not always be avoided. Both the phase before the magistrate (in iure) and before the judge (apud iudicem) could be influenced by recommendations. Two letters of recommendation are addressed to praetores urbani. The first letter, addressed to C. Titius Rufus (praetor in 50), requests access for a certain L. Custidius concerning a further unknown case.1462 The second letter, addressed to M. Curtius Peducaeanus (praetor in 50) makes the same request on behalf of M. Fabius Gallus concerning the above mentioned conflict with his brother.1463

1459 CICERO, Fam. XIII, 26, 2 (cum iure et potestate quam habes tum etiam auctoritate et consilio tuo); 13, 28. See also COTTON (1978) on the case. 1460 CICERO, Fam. XIII, 14. 1461 CICERO, Fam. XIII, 56, 2-3. 1462 CICERO, Fam. XIII, 58. 1463 CICERO, Fam. XIII, 59. Presumably Titius Rufus and Curtius Peducaeanus were praetor peregrinus and urbanus. See SHACKLETON BAILEY (1977) I, p. 479-480.

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The importance of such interventions in the preliminary phase of a trial should not be underestimated. The phase in iure still left ample room for negotiations between the litigating parties in which the competent magistrate acted as a mediator. Judicial magistrates enjoyed wide discretionary powers concerning form and procedure.1464 They were fully authorised, for example, to set the date of the eventual trial at the convenience or inconvenience of any of the parties. Interestingly, Cicero explicitly mentions this possibility as a legitimate way in which to accommodate a friend in a lawsuit.1465 An example is found in the trial of Pausanius from Alabanda. Pausanius was a client of Ti. Claudius Nero (Livia Augusta’s first husband and father of the later emperor Tiberius), whose family had been patron of a considerable number of Asian communities for many generations. Nero, who was still a young man at the time, turned to Cicero and Cicero in turn asked the governor Minucius Thermus to postpone the case until Nero arrived in the province.1466 Whereas in the cases of Custidius and M. Fabius Gallus, Cicero merely requested an easy access to the magistrates and at least pretended not to want to influence their judgement as such, the recommendation on behalf of M. Marcilius filius went a step further. Marcilius’s mother-in-law was in danger of being accused and Cicero asked the governor of Asia, Minucius Thermus, to see to it that she would not have to stand trial, i.e. that the conflict would not go beyond the phase in iure.1467 A governor could be asked to withdraw a case involving a Roman citizen from the jurisdiction of the local communities and bring it before a Roman provincial court of recuperatores. L. Genucilius Curvus owned land at the Hellespont that belonged to the territory of the theoretically independent city-state of Lampsacus. When Genucilius’s property rights were disputed, Cicero asked the governor Minucius Thermus to bring the case before a court of Roman recuperatores rather than allow it to be heard before the courts of the city of Lampsacus.1468 Although Roman governors seem to have had the authority to withdraw cases against Roman citizens from local courts, the procedure was extremely unpopular. Some governors, like C. Verres and App. Claudius,

1464

Cf. COTTON (1986), p. 453; KELLY (1966), p. 85-101; BÜRGE (1995). CICERO, Off. III, 43. 1466 CICERO, Fam. XIII, 64, 1. See also HARMAND (1947); RAWSON (1973). 1467 CICERO, Fam. XIII, 54. 1468 CICERO Fam. XIII, 53. See SHACKLETON BAILEY (1977) II, p. 472. 1465

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systematically brought all cases involving Roman citizens before a Roman court. In Sicily this was against the provincial charter (the lex prouinciae), which expressly stipulated that in cases between Roman citizens and Sicilians the judge had to have the nationality of the defendant.1469 Cicero’s recommendation on behalf of Hippias, son of Philoxenus from Caleacte even called for the intervention of the governor in a case where no Roman citizen was involved.1470 Sometimes a magistrate could be asked to refer a case to another court. Thus Cicero asked Ser. Sulpicius Rufus to refer the case of the inheritance left by M. Mindius to Mescinius Rufus to Rome, should his mediation fail, on the ground that Mescinius was senator. An additional letter from the consul M. Aemilius Lepidus increased the pressure on Sulpicius.1471 Cicero made a similar request to the governor of Asia, Q. Minucius Thermus, in the case of Cluvius’s claims on the formally independent cities of Mylasa and Alabanda: they should be compelled to send plenipotentiaries (ecdici) to Rome to settle their dispute with Cluvius.1472 Cicero’s request to Thermus was in line with the lex Julia de repetundis, which denied governors jurisdiction over formally independent communities in their provinces.1473 His request to Sulpicius Rufus regarding the dispute over Mindius’s inheritance between Mescinius and Oppia (Mindius’s widow), however, was highly irregular since it ran against the principle that a trial had to take place where the defendant lived. Jones interpreted the request as proof of the imperium maius of the consuls at Rome. Garnsey interpreted it as a form of reiectio iudicii – a right to reject a trial – analogous to the right of reciectio iudicis – the right to reject a judge. Cotton, however, after carefully analysing the case, concludes that nothing indicates that Cicero demanded the application of a right. It would rather seem that Cicero demanded a favour (beneficium) that was legally dubious. Nothing indicates that a right of reiectio iudicii ever existed in Roman law.1474 Personally I’m inclined to an alternative explanation, viz. that Sulpicius was not asked to refer the case to Rome

1469 CICERO, 2 Verr. II, 32 (Verres); Att. VI, 1, 15; 2, 4 (App. Claudius). The clause followed the principle that actio reo sequitur. 1470 CICERO, Fam. XIII, 37. 1471 CICERO, Fam. XIII, 26, 3. 1472 CICERO, Fam. XIII, 56, 1. 1473 See VERBOVEN (1993b), p. 298-300. 1474 COTTON (1978).

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as governor of Achaea but rather as arbiter between Mescinius and Oppia. Both parties would then be held to respect Sulpicius’s decision on the grounds of their compromissum arbitrale, which in turn was sanctioned by a penalty clause1475 Although Cicero emphasised that a judge had to set the claims of friendship aside when judging a friend – a case which must have been quite common since Roman procedural law allowed litigants a large freedom in choosing their judge – the phase apud iudicem was not free from gratia.1476 When Cicero was selected judge in a dispute between Curtius Nicias from Cos and a certain Vidius, Dolabella (his former son in law) immediately wrote a recommendation for Nicias. Cicero pretended not to be influenced, but he nevertheless made it quite clear that the evidence of Vidius would be found inadequate.1477 In a law suit both defendant and plaintiff needed assistance. It had been the prime duty and beneficium of a patron to defend his clients in court since the earliest days of the Republic. However, this beneficium could also be acquired through a recommendation. Thus Cicero asked M. Caelius Rufus to take up the defence of M. Fabius Gallus1478 Q. Roscius Gallus, the actor, persuaded Cicero to take up the defence of P. Quinctius, Roscius’s brother-in-law, in the case against Sex. Naevius.1479 Apart from a patron, the litigating parties needed legal assistance and advice from a jurist. This too was available through gratia. When the agnates of a certain Turpilia disputed her will which appointed P. Silius as heir, the case was brought before the praetor, where both parties agreed to proceed by a sponsio. Silius asked the advice of Ser. Sulpicius and A. Ofilius on the terms of the proposed sponsio. Sulpicius and Offilius advised against it, but Cicero consulted with Trebatius Testa, who thought it was safe to accept it. Cicero then wrote a letter of recommendation to Trebatius asking him to assist P. Silius in his upcoming trial.1480 Sometimes, legal procedures were wholly abandoned. As governor of Asia, Q. Cicero ordered that the inheritance that L. Octavius Naso had left to L. Flavius not be released to the heir until Naso’s debts

1475

On this procedure see now CAMODECA (1992), p. 124-128. CAMODECA (1999), p. 103-111. CICERO, Off. III, 44. See KELLY (1966), p. 42-43. 1477 CICERO, Fam. IX, 10, 2. 1478 CICERO, Fam. II, 14. 1479 CICERO, Rosc. Com. 77-78. 1480 CICERO, Fam. VII, 21. 1476

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to C. Fundanius (a friend of the Cicerones) were paid. This was manifestly illegal. Nevertheless, Flavius’s only hope was an intervention from Quintus’s brother Cicero. Cicero admonished his brother: ‘sometimes, the imperatives of the law are such that there is no room for gratia’. Yet without his gratia with Pompey, Caesar and Cicero himself, Flavius would never have succeeded in making Quintus repeal his decree. 1481 When Cicero expressly forbade the Salaminians to deposit their debt to M. Scaptius and P. Matinius he was acting against the spirit (if not the letter) of his own edict.1482 When a conflict could not be settled by peaceful means, gratia could be used to obtain military intervention from government officials. All things considered Cicero’s treatment of the Salaminians was mild compared to the actions taken by his predecessor Brutus’s father-in-law App. Claudius. The latter appointed M. Scaptius prefect and gave him a troop of horsemen to use against the city. Scaptius shut the senate of the city up in its council building until five members died of starvation. Although both Brutus and Atticus asked Cicero to renew Scaptius’s command, Cicero refused and withdrew the soldiers.1483 Mediation.

It would be wrong to think that amici only intervened in cases of conflict. The recommendation for Terentius Hispo, promagister of the societas scripturae Bithynicae requested that the governor mediate in the drawing up of contracts between the cities and the representatives of the company. Cicero himself had already mediated between the Ephesians and Hispo while travelling through the city on his way to Cilicia.1484 Through Atticus Cicero tried to persuade Balbus and Oppius to negotiate with Faberius about an early payment of the debt he owed to Cicero.1485 Nothing in either of these cases indicates that there was a conflict.

1481

CICERO, Q. fr. I, 2, 10. (uis iuris eius modi est quibusdam in rebus ut nihil sit loci gratiae) CICERO, Att 5, 21, 12; 6, 1, 7; 2, 8. 1483 CICERO, Att. V, 21, 10; VI, 1, 6; 2, 8. See also CICERO, 2 Verr. I, 74: Verres lends out his lictores to a creditor of the city of Lampsacus in exchange for a false testimony – the between nicely illustrates the thin line between gratia and plain corruption. 1484 CICERO, Fam. XIII, 65, 1. 1485 CICERO, Att. XII, 29, 2. 1482

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Privileges, exceptions and other government decisions.

A number of recommendations try to obtain special privileges or legal exceptions. T. Antistius had been Pompey’s quaestor in Macedonia. Accordingly, his goods had been confiscated. After Pompey’s defeat at Pharsalus, Antistius withdrew from the struggle and demanded Caesar’s pardon. According to Cicero, Caesar promised to accommodate, but before he was officially pardoned Antistius died, leaving most of his goods to his relative C. Ateius Capito. Cicero wrote a letter of recommendation to Caesar’s legate L. Munatius Plancus, asking him to plead with Caesar to repeal the confiscation of Antistius’s goods in favour of Capito. To judge by Capito’s later association with L. Munatius Plancus, we may conclude that the intervention was successful.1486 Caesar had imposed a heavy fine on the city of Buthrotum for its role in the war against Pompey. Because the city could not pay up, it was chosen as the location for a new veteran colony and its public lands became destined for distribution among the soldiers. Atticus had much to lose by the colonisation. His best estates were located in the region and presumably he leased large tracts of public land for grazing. So he appealed to Cicero who succeeded in persuading Caesar to grant a dispensation on condition that the fine was paid immediately. Atticus advanced the money, but before Caesar could issue the decretum liberalissimum he had promised he was murdered. This meant that the colonisation of Buthrotum would go through as planned and a commission was formed of three praefecti agris dandis assignandis consisting of L. Plotius Plancus, C. Ateius Capito and C. Cupiennius. Cicero wrote several letters of recommendation to Plancus and Capito trying to convince them to apply the unpublished decretum liberalissimum. His efforts proved in vain and the colonia Iulia in Buthrotum was founded.1487 Thanks to the efforts of Cicero and others, the governor of Cilicia, T. Ampius Balbus, had produced a special decree in favour of A. Trebonius and when Lentulus Spinther succeeded Ampius, Cicero wrote a recommendation on behalf of Trebonius asking for a renewal of the decree. Unfortunately, the nature of the case is not explained.1488 A special senatorial

1486 CICERO, Fam. XIII, 29. On the association between both men cf. supra p. 292and see DENIAUX (1993a), p. 455-456. 1487 CICERO, Att. XVI, 16a; 16b; 16d; 16e; 16f. On the case see DENIAUX (1975). 1488 CICERO, Fam. I, 3. See also DENIAUX (1993a), p. 564-566, who assumes that A. Trebonius had been proscribed by Sulla.

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decree favoured the interests of the heirs of C. Vennonius and Cicero expressly requested the governor of Asia to apply the decree in his province.1489 A certain Feridius tried to obtain immunity from taxation for the lands he leased in Cilicia by means of a recommendation from Caelius Rufus to the governor of the province, Cicero.1490 When Pompey was curator annonae, he granted special privileges to the Sicilian grain merchant C. Avianius Flaccus on Cicero’s request. Three years later Cicero asked for a renewal of these privileges from Pompey’s legate L. Titius.1491 We have already seen that praetors were approached to influence trials. We have no evidence of city magistrates changing their edicts or passing special decrees to accommodate amici and clients, but the case of Verres selling his favours to the highest bidder shows that praetors could easily abuse the authority vested in them. A certain P. Annius Asellus had made his daughter sole heir. Although his patrimony was worth well over 100,000 sesterces Asellus was not bound by the lex Voconia because he had not been registered in the latest census. In exchange for a bribe from the heir in the second degree, Verres inserted a clause in his edict invalidating the institution of female heirs by persons who were incensi but who otherwise qualified under the terms of the Voconian law.1492 Another clause in Verres’s edict was inserted in exchange for money on behalf of the daughter of the patron of a certain freedman C. Sulpicius Olympus and stipulated that daughters of patroni were entitled to at least one sixth of the inheritance left by the freedmen of their father.1493 It seems unlikely, therefore, that the legislating activity of the praetor urbanus and peregrinus and of the aediles was free from gratia. Allocation and follow-up of public contracts.

Public contracts for the levying of taxes were supposed to be assigned to the highest bidder, while contracts for public works had to be assigned to the lowest bidder. However, as today, reality was often different and contracts were assigned to those offering the highest bribe. Cato the Elder’s censorship became famous for the straightforwardness with

1489

CICERO, Fam. XIII, 72, 2. CICERO, Fam. VIII, 9, 4. 1491 CICERO, Fam. XIII, 75. 1492 CICERO, 2 Verr. I, 104-114. 1493 CICERO, 2 Verr. I, 125-127. 1490

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which the eccentric conservative assigned the taxes (uectigalia) to the highest bidder and the contracts for public works (ultro tributa) to the lowest bidder. The case was so exceptional that it was remembered in ages to come.1494 Verres assigned the contract for replacing the columns of the Castor-temple to his partner in crime L. Rabonius for 560,000 sesterces, although the tutores of young P. Iunius had offered to do the work for 40,000 sesterces.1495 In Cicero’s depiction of the facts, this was a borderline case. Although Verres and Rabonius concluded a criminal alliance that could be termed a utilitarian amicitia, neither Verres nor Rabonius are reported to have entertained any other contacts or to have had any other joint ‘projects’ in mind. Their relationship was founded on mutual trust (fides) only in so far as both men had participated in a criminal act requiring discretion.1496 Nevertheless, we have a few indications that, besides common bribes, gratia and amicitia could play a role of their own in the allocation of public contracts. One of Cicero’s witnesses against Verres was Q. Tadius who testified that he had given money to Verres in exchange for lucrative contracts. This Q. Tadius was an intimate (familiarissimus) of Verres’s father and a relative of Verres’s wife, Tadia.1497 The sensitivity of some officials to the needs of publicani is clear also in the case of P. Valerius, a local tax-farmer in Cilicia who went bankrupt under Cicero’s governership. Valerius’s sureties (praedes) consequently risked being sued. At least two of them, M. Anneius and Q. Paconius Lepta, were amici of Cicero on whose staff they served as legate and prefect. By manipulating the provincial accounts Cicero managed to release them from their obligations.1498 Appointment to offices and administrative posts.

A governor enjoyed a large freedom to choose his subordinates. Appointments to prefect or other offices were seen as beneficia. As such, they could be the subject of a recommendation, thus in addition becoming a secondary beneficium from the person who made the

1494

PLUTARCH, Cat. Mai. 19; LIVY XXXIX, 44, 7. See BADIAN (1972), p. 35-36. CICERO, 2 Verr.I, 146. 1496 CICERO, 2 Verr. I, 130-152 (see esp. I, 146). 1497 CICERO, 2, Verr. I, 128. 1498 CICERO, Att. V, 21, 14; Fam. V, 20, 3-4. The case is obscure. See SHACKLETON BAILEY (1977) I, p. 467-468. 1495

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recommendation.1499 Administrative posts (especially praefecturae) were much sought after by businessmen, who could use them for private purposes. The custom was very unpopular. Cornelius Nepos praised Atticus because although he accepted honorary praefecturae, he never used them for his own advantage.1500 The implication of Nepos’s assertion is that many asked and received appointments solely for their own benefit. Cicero refused to appoint negotiatores to praefecti in Cilicia, although he received numerous recommendations to this effect. Pompey asked a praefectura for Sex. Statius, A. Manlius Torquatus for M. Laenius, Brutus and later Atticus for M. Scaptius. Even Cicero’s own amicus Vennonius was denied an appointment on the grounds that he was a negotiator in the province.1501 Not everyone was pleased with Cicero’s policy. Scaptius and Brutus – whose interests Scaptius served – were furious. Even Atticus insisted that Cicero make an exception for Scaptius.1502 However, Cicero’s concern did not transcend the borders of his own province. He unhesitatingly assigned praefecturae and tribunatus militum to businessmen who were active in the adjacent provinces and kingdoms. Thus at Brutus’s request, he offered a praefectura and a tribunatus militum to another M. Scaptius who was a negotiator and a procurator of Brutus in Cappadocia.1503 Another procurator of Brutus in Cappadocia, the negotiator L. Gavius, received a praefectura. Gavius took his appointment as prefect so much for granted that he was outraged when Cicero refused to pay him cibaria on the grounds that his praefectura had been for the sole benefit of himself and Brutus, and not that of the state.1504 The advantages of praefecturae and other official posts were considerable. As representatives of the government, they could claim a ‘reimbursement’ of expenses (cibaria), which in truth constituted a handsome remuneration. The lex Iulia de repetundis gave them the right to requisition

1499

SALLER (1982), p. 130-134; PAVIS D’ESCURAC (1992); COTTON (1981a). See also CICERO, Q. fr. I, 1, 13 on the desirability of provincial posts. 1500 NEPOS, Att. 6, 4. See also CICERO, Att. I, 16, 14; 17, 1, 5. The practice was forbidden by the Emperors: Dig. XII, 1, 33. 1501 CICERO, Att. V, 21, 10; VI, 1, 6; 2, 8; 3, 5. See also Att. V, 11, 5; VI, 1, 4: Cicero was prepared to appoint anyone prefect who was recommended by Atticus or Brutus dum ne negotiatori. 1502 CICERO, Att. VI, 2, 8; 3. 1503 CICERO, Att. VI, 1, 4; 3, 5. 1504 CICERO, Att. VI, 1, 14; 3, 6-7.

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supplies and other essentials for themselves and their retinue.1505 As prefects, businessmen could even take command of troops, as we saw happening in the case of Scaptius and Salamis. Praefecturae were typical of knights, while senators usually received legationes.1506 In theory, legationes were assigned by the senate, but in reality the choice was left to the governor, who usually called upon friends and family. As praefecturae, legationes were attractive for businessmen. Verres’s legate P. Tadius,, for example, was probably related to Verres’s mother, Tadia. He was residing in Athens in 79 when Verres deposited a large sum with him, probably with the intention of investing it. Another member of the family, Q. Tadius, was active as a publicanus. The business activities of the family suggest that P. Tadius either already had business interests in Sicily or hoped to engage in business there for which the legatio would be useful.1507 We do not know what Cicero’s relations with M. Anneius were before Anneius was appointed a legate on Cicero’s provincial staff. It would seem that Cicero chose him for his military abilities. However, at the same time Anneius had a conflict with the city of Sardis over an unpaid debt for which he even left Cilicia for a few months. This and other financial interests in the region may have been Anneius’s reason for accepting the legatio.1508 However, senators had an interesting alternative means of reinforcing their independence: the libera legatio rerum suarum causa – the ‘free legatio for private purposes’. Theoretically, senators were not allowed to leave Italy unless the senate gave them permission. The libera legatio not only offered a way to circumvent this rule, it endowed senators travelling outside Italy on strictly private business with an official status guaranteeing

1505

On cibaria see BERGER (1953), p. 388; FIEBIGER (1899), col. 2535-2536. On the lex Iulia see GRUEN (1974), p. 239-243; CRAWFORD (1996), p. 769-772. See also CICERO, Att. V, 10, 2; 16, 3. 1506 SUOLAHTI (1970); THOMASSON (1991), p. 9-25; SCHEUSSNER (1978). Note, however, that there was no legal ban on knights being appointed legati. Atticus e.g. was offered a legatio by Cicero’s brother Quintus (NEPOS, Att. 6, 4). 1507 CICERO, 2 Verr. I, 100; II, 49; IV, 31; V, 63. See NICOLET (1966-1974), p. 1029-1030; ANDREAU (1990), p. 506. 1508 Cf. DENIAUX (1993a), p. 450-451; MIGEOTTE (1984), p. 313. CICERO, Fam. XIII, 55; 57.

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them special privileges and reinforcing their dignitas.1509 Cicero expressly mentions liberae legationes to discharge religious vows (uoti causa), to accept inheritances (hereditatum obeundarum causa) and to claim payment of contracts (syngraphae exigendae causa).1510 This institution was notorious for its abuses. Cicero claimed to have tried in vain to abolish the practice, but prided himself on at least having succeeded in pushing through a senatorial decision to limit the duration of a libera legatio to one year.1511 This limitation in time was confirmed by the lex Iulia de repetundis four years later.1512 Under the Empire the institution evolved into a simple leave of absence for senators (commeatus), without any special privileges attached to it.1513 We have several examples of liberae legationes,1514 but unfortunately we have almost no information on the actual decision-making process behind them or on the part played by amicitia and gratia in this process. Equally unclear are the implications of liberae legationes. In a letter of recommendation written on behalf of C. Anicius, who travelled to Africa with a legatio libera, Cicero asserted that he was wont to give lictores to all senators in his province and he asked the governor of Africa Q. Cornificius to do the same for Anicius. The case shows that much depended on the goodwill of the governors in question. This implies that many of the special privileges that the ‘free’ legates enjoyed where in fact favours (beneficia) granted by local governors, which in turn could be the subject of recommendations.1515

1509 See SUOLAHTI (1970); MOMMSEN (1887) II, p. 690-692; VON PREMERSTEIN (1925), col. 1135-1136. 1510 Voti causa: CICERO, Att. IV, 18, 3; IV, 2, 6; XV, 18, 1; 11, 4. Hereditatum obeundarum causa: Agr. I, 8; Leg. 3, 18. Syngraphae exigendae causa: Flacc. 86; Leg. 3, 18. 1511 CICERO, Leg.3, 9; 18. 1512 CICERO, Att. XV, 11, 4. 1513 Cf. SUETONIUS, Tib. 31; Dig. L, 7, 15; Schol. Bobb., p. 53 (ed. Hildebrandt (Teubner)) in Cic. Flacc. 86. 1514 Cf. e.g. CICERO, Q. fr. II, 8, 2 (Clodius Pulcher); Flacc. 86 (M. Aufidius Lurco); Fam. XII, 21 (C. Anicius); Att. II, 7, 3 (M. Livius Drusus Claudianus); Q. CICERO, Comm. Pet. 8 (C. Antonius Hybrida). 1515 CICERO, Fam. XII, 21.

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Motivations and signification. The viewpoint of commendator and addressee.

According to Seneca, the use of gratia / influence on behalf of others qualified as a beneficium.1516 Although the commendator did not personally offer a favour, it was through him that the commendatus acquired it. A recommendation, therefore, served as a secondary beneficium and thus kindled gratia /gratitude in the beneficiary. Conversely, a recommendation could qualify as a response to favours received in the past by the commendator from the commendatus thus manifesting gratia / gratitude on the part of the commendator. The previous chapters have made it clear that gratia – in the sense of gratitude – had to be expressed by substantial favours (beneficia) generating a lucrative or otherwise advantageous return. The exerciseof gratia / influence, therefore, was a natural part of the chain of reciprocal services that cemented relations of amicitia. Cicero’s recommendation on behalf of L. Papirius Paetus was a response to the latter’s decision to donate the library he had inherited from his brother Ser. Claudius to Cicero.1517 Neither favour can be isolated from the numerous other mutual favours both men exchanged. The twelve letters addressed to Paetus we have from Cicero attest to their close personal relation.1518 Paetus himself had auctoritas and gratia to which Cicero appealed to help M. Fabius Gallus.1519 In 46, Paetus helped Cicero to find a residence in the neighbourhood of Naples.1520 Another letter mentions a certain Rufus – possibly the poet Varius Rufus – whom Paetus recommended to Cicero.1521 Paetus had invested a large part of his patrimony in interest bearing loans and possibly cherished his friendship with Cicero so that he could use the latter’s influence whenever necessary.1522 Cicero’s recommendation on behalf of Cluvius was balanced by Cluvius’s services as financial intermediary for Cicero and by the share of

1516

SENECA, Ben. I, 2, 4. CICERO, Att. I, 20, 7; II, 1, 12. 1518 see D’ARMS (1970), p. 191-192; DENIAUX (1993a), p. 422-423 1519 CICERO, Fam. IX, 25, 2-3. 1520 CICERO, Fam. IX, 15; 16, 10. 1521 CICERO, Fam. IX, 24, 1. 1522 CICERO, Fam. IX, 16, 7; 18, 4; 20, 1 1517

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the inheritance that Cluvius left to Cicero.1523 The recommendations on behalf of L. Egnatius Rufus1524, as well, are balanced by the financial services provided by Egnatius to the Cicerones. Egnatius graciously provided Q. Cicero with a free loan to allow him to repay Pomponia’s dowry.1525 He also helped to transfer and to safeguard part of the money which Cicero had deposited with the publicani at Ephesus1526 and he participated in the negotiations to buy gardens to build a monument for Cicero’s deceased daughter.1527 Cicero’s recommendation on behalf of L. Cossinius was repaid when Cossinius left him a share of his inheritance.1528 Originally, Cicero’s recommendations on behalf of M’ Curius from Patrae were a response to Curius’s writing Cicero into his will and offering hospitality to his favourite freedman, Tiro, when he fell sick in Patrae on the return journey with Cicero from Cilicia.1529 It is interesting to note that Curius presents himself in his letters to Cicero as a cliens of both Atticus and Cicero.1530 The recommendation on behalf of L. Aelius Lamia is also embedded in a chain of reciprocal favours. Lamia’s father had been closely allied to the Cicerones. Lamia himself led a delegation of knights to the senate in 58 demanding the recall of Cicero from exile. A member of his family (or himself?) rented the parental house of the Cicerones in Rome in the Carinae in 56 (property of Q. Cicero at the time). In 51, Cicero commissioned him to look into Philotimus’s malversation.1531 The motivation for the addressee to grant a request was similar to the commendator’s motivation to make a request on behalf of the commendatus. To do so was to confer a beneficium on both the commendator and commendatus and thus create the prospect of a return favour from both.

1523

On the recommendation: CICERO, Fam. XIII, 56. On Cluvius’s services as financial intermediary see CICERO, Att. VI, 2, 3; ANDREAU (1983). On his inheritance cf. CICERO, Att. XIII, 45; 2-3; 46, 3-4; 37a; 14, 9, 1; 10, 3; 11, 2; XVI, 2, 1; 6, 3. 1524 CICERO, Fam. XIII, 43; 44; 45; 73; 74. 1525 CICERO, Att. XIV, 15, 4. 1526 CICERO, Att. XI, 3, 3. See also Fam. V, 20, 9; Att. XI, 1, 2; 2, 3; 13, 4. 1527 CICERO, Att. XII, 30, 1; 31, 2-3. 1528 CICERO, Att. XIII, 46; 4. The recommendation: Fam. XIII, 23 1529 The recommendations: CICERO, Fam. XIII, 17; 50. On Curius’s will: Att. VII, 2, 3. On Tiro: Fam. XVI, 4, 2; 9, 3; Att. VII, 2, 3; VIII, 5, 2; 6, 5. 1530 CICERO, Fam. II, 29. See Fam. XIII, 17. 1531 The recommendation: CICERO, Fam. XII, 29. On his relation with Cicero see DENIAUX (1993a), p. 439-441; NICOLET (1966-1974), p. 762; WISEMAN (1971), p. 202, 209; RAUH (1986), p. 16-17.

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Conversely, it provided an opportunity to show gratia / gratitude for favours received. The addressee’s motivation is easily visible from the persuasive elements inserted in the letters of recommendation. These usually stress that the commendator would be grateful and ready to return the kindness shown to him. He would be effectively bound by the addressee’s beneficium. A character description of the commendatus as endowed with all the virtues of an amicus dignus reinforced these assertions. If the addressee would grant the request, it would prove the love between the commendator and his correspondent and he would oblige the latter as well as the commendatus himself.1532 Recommendations, therefore, both qualified as secondary beneficia and served as ways to obtain primary beneficia. As such they were part of the exchange of favours establishing and consolidating Roman instrumental friendship and patronage. However, recommendations also helped to build and consolidate the intricate personal networks on which Romans depended. Boissevain showed that patronal systems are generally more effective when patrons use not only their own limited resources (‘primary resources’) but also those of their friends, clients and higher patrons (‘secondary resources’). He described this form of patronage as ‘brokerage’.1533 Cicero makes a very similar distinction between facultas, resources at one’s immediate disposal, on the one hand and gratia, giving access to resources at another’s disposal, on the other hand.1534 According to Boissevain, brokerage can be described as a business. A broker’s capital consists of his personal network of relations. These relations are determined by reciprocity. Expressed in the Latin vocabulary of friendship, the system would look like this: Every time a commendator (broker) is successful in obtaining a favour for his commendatus, he acquires gratia and is entitled to a counter-favour. Conversely, however, the commendator (broker) places himself under an obligation towards the addressee (becomes beneficio obligatus or deuinctus). The commendator (broker) can do this because he has fides (credit) and, therefore, inspires trust in the addressee. In utilitarian terms his credit consists of what others believe his personal network can achieve, i.e. the appreciation of the gratia (influence) he has. Because the commendator offers secondary

1532

Passim in CICERO, Fam. XIII. BOISSEVAIN (1969). 1534 See e.g. CICERO, Fam. XIII, 6, 2. 1533

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resources, his actual ability to confer beneficia is both larger and vaguer than it would be in the case of primary resources. The advantage for the commendator is that he acquires new gratia with his commendatus, which gives him the right to claim a counter-favour (officium, beneficium) and the additional right to determine when the return should be made and what it should consist of. His ability to confer secondary resources is thereby confirmed and enlarged. A commendator (broker) can acquire primary resources by using the gratia he enjoys not for the benefit of others but for himself, for example, by using his influence to obtain a free loan. Brokerage depends largely on appearances and on the reputation for being able to ‘get things done’. A person enjoying such a reputation can easily persuade others to do him a favour, since they know (or think they know) that they can count on a valuable counter-favour. In this way, influence generates influence. As we have already seen, reputation (existimatio) was closely connected to the ambiguous concept of dignitas. Dignitas signified dignity, honour and respectability, but depended largely on prestige and on the ability to maintain an elevated social position by giving others what they needed of wanted. In this sense, commendationes were a way to confirm a person’s dignitas, i.e. they confirmed his social position as giver of beneficia. In some cases the addressee himself could act as a broker and pass on the request to yet another friend or patron. The results are long chains of gratification that can cause a personal network to expand until its limits become invisible. The letters of recommendation from ancient authors testify to the workings of these personal networks and chains of gratia. It is rarely possibly to reconstruct more than three stages of a chain (commendatus – commendator – correspondent) and in many cases there is no need to assume any more persons being involved. Nevertheless, in a few cases we get a glimpse of a longer chain. Thus we find a certain L. Iulius and P. Cornelius, whom the tax-farmer P. Cuspius had recommended to Cicero, asking Cicero to write a recommendation to the governor of Africa Q. Valerius Orca.1535 Varro Murena requested Cicero to write a recommendation for the negotiator in Thespiae T. Manlius. Although Cicero claims to entertain a close friendship with Manlius himself, the businessman is nowhere else attested in Cicero’s letters, shedding a

1535

CICERO, Fam. XIII, 6; 6a.

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doubtful light on their proclaimed friendship.1536 The same can be said for L.Oppius M. f., the negotiator in Philomelium, who was Egnatius Rufus’s procurator. Although Cicero claims to be Oppius’s intimate (familiaris), the recommendations for Oppius mainly stress Cicero’s close relation with Egnatius and make it clear enough that Oppius himself only received a recommendation because Egnatius requested it.1537 When the mother-in-law of the son of Cicero’s interpreter in Cilicia M. Marcilius was in danger of being sued, she obtained a letter of recommendation from Cicero through the father of her son-in-law.1538 The case of Ti. Claudius Nero clearly shows how gratia could be effective in obtaining secondary resources with which a personal network could be held together. Nero had inherited amplissimae clientelae in Asia, but the existence of this network depended on Nero’s ability to provide the same resources as his forefathers. As a young man, Nero did not yet have the necessary resources or influence at his disposal. So he turned to Cicero and asked him to exert influence on behalf of the ‘Claudian’ clients. Cicero was, of course, well aware of Nero’s career prospects and was more than willing to help. Thus when Nero recommended a certain Servilius Strabo to Cicero, Cicero in turn wrote a recommendation on behalf of Strabo to the governor of Asia Minucius Thermus. Cicero also asked Minucius to postpone the trial of Pausanias from Alabanda until Nero arrived in the province.1539 A somewhat comparable example may be that of A. Trebonius, who may have been an exile and a refugee from Sulla’s proscriptions, but who was nevertheless influential in Cilicia through the recommendations – i.e. through the influence – of Cicero and others.1540 Both Nero’s and Trebonius’s provincial networks were held together solely through the influence of others. Reputation is an essential element in brokerage. The more a person is successful in creating the impression that he is influential, the more others will be found ready to provide favours hoping that they will receive a future counter-favour. The principle works as a self-fulfilling prophecy. In order for it to be effective, however, gratia had to be displayed. Cicero described Asia as a magnum theatrum where Nero’s ‘recommendations and glory’ (commendationem atque gloriam) could be

1536

CICERO, Fam. XIII, 22. CICERO, Fam. XIII, 43; 44, 73; 74. 1538 CICERO, Fam. XIII, 54. 1539 CICERO, Fam. XIII, 64. 1540 CICERO, Fam. I, 3. On Trebonius see DENIAUX (1993a), p. 564-566. 1537

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shown. Clearly, Cicero expected that when it became generally known that Nero’s intervention (through Cicero) had been effective, other clients could be convinced to cherish (colere) their relation with Nero instead of looking for another patron. This would fortify Nero’s influence in the province (make his gratiosus) so that he could persuade other influential persons, both in Asia and in Rome, to grant him favours. In his letters of recommendation, Cicero repeatedly asks that the addressee make sure that a commendatus understood that Cicero’s intervention had been the reason why his request was granted.1541 In a letter to the governor of Macedonia-Achaea, L. Culleolus, Cicero expressed his thanks because Culleolus had granted a request which Cicero had made on behalf of Lucceius and so the commendatus and his procuratores understood that no one enjoyed more auctoritas and gratia with Culleolus than Cicero.1542 However, the self-fulfilling prophecy of brokerage works in two directions. Boissevain showed that a brokerage-network has the potential to grow very fast but can also suddenly collapse. A broker cannot afford to disappoint anyone. Once a few people notice that a broker can no longer provide the resources they need or want, they abandon him. This causes the broker’s influence to crumble even further, inducing yet others to break with him, causing his influence to crumble even more, and so on. It is vital for the continued existence of a brokerage network, therefore, that influence is permanently displayed and acknowledged.1543 As we have already seen, a considerable number of recommendations request that a commendatus would be accepted into the circle of friends and protégés of the addressee. Such a request may seem strange at first sight, since the establishment of a new link would make future brokerage by the commendator superfluous. However, if the request was successful and a new amicitia developed between commendatus and addressee, the commendator acquired a new line of access to the addressee. If he needed to ask a new favour, he would henceforth be able to count on the addressee’s new friend, who owed him gratia for recommending him to

1541

See e.g. CICERO, Fam. XII, 29, 3; XIII, 3, 2; 6a; 27; 35; 44; 74; 58; 59; 61. CICERO, Fam. XIII, 42. See also 13, 41. 1543 A curious side-effect was noted by Sharon Kettering who observed that clients in Early Modern France abandoned patrons faster than vice versa because abandoning a client meant loss of prestige (KETTERING (1986), p. 28). 1542

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the addressee in the first place. In other words, the influence of the commendator with the addressee would increase accordingly. This is what we see happening in the case of C. Ateius Capito and the brothers Munatius Plancus and Plotius Plancus. Cicero recommended Capito to Munatius Plancus.1544 Both Munatius and Plotius accepted Ateius into their amicitia. A few years later, when Cicero tried to persuade Plotius Plancus, as one of the praefecti charged with the establishment of a colony in Buthrotum, to spare the city, he turned to Ateius Capito (himself also praefectus on the same commission) to help put pressure on Plotius. The manoeuvre failed, but the case clearly illustrates the advantages of recommending someone into the amicitia of another.1545 The viewpoint of the commendatus.

Our brief survey of the object and purposes of recommendations has shown that recommendations and influence were important elements in the business strategies of the commendati. By using recommendations, creditors could put pressure on their debtors to pay up and debtors could persuade their creditors to grant them remission of payment. Through recommendations governors and other officials could be approached, their mediation obtained, their authority used in conflicts, trials facilitated or postponed, privileges obtained, and so on. The ultimate purpose of the commendati was strictly economic: to maximise profit and to protect their fortunes. Recommendations and influence proved to be an excellent instrument of economic action and were beyond doubt the main reason why negotiatores cherished their amici in high places. However, the importance of gratia to the Roman economy transcended the strategic level of the economic game. Gratia left its marks on the institutional plane in such a profound way that it determined the working of the entire system of administration, both in economic and other matters. The Roman government provided hardly any impersonal bureaucracy through which its citizens and subjects could approach her. Whoever needed something from the government had to approach the competent official personally. This must have been easy enough when Rome was a small city state, but by the time of the Late Republic Rome had grown to an empire with millions of citizens, ‘allies’ and subjects and personal

1544 1545

CICERO, Fam. XIII, 29, 8. CICERO, Att. XVI, 16c.

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access to magistrates and other officials had become very difficult to achieve in practice. Recommendations offered a limited alternative to a limited part of the population, assuring an easy access to government officials. For a privileged part of the population, therefore, personal networks of amicitia and patronage largely obviated the need for an impersonal bureaucracy. Of course, the rules by which resources were allocated through the system of personal recommendations differed considerably from the theoretical rules of allocation through public administration that was supposed to be subject to the universalist order of the state. The favours requested in commendationes depended largely on the particularist criteria of amicitia and patronage. The normative order of justice (iustitia) and equity (aequitas), which was supposed to guide state officials, was of secondary importance. These universalist norms were often referred to in recommendations but mainly to reassure the addressee that the request was legitimate. The addressee was approached as a friend, not as the embodiment of the impersonal power of the state. The persuasive strength of a commendatio was not derived from the universalist norms of justice (iustitia) and equity (aequitas), but from the moral matrix of amicitia. It was rarely necessary, therefore, to explain the merits of a case in a commendatio. The addressee did not have to be persuaded that the commendatus requested the application of a right which it was his duty to confer. Instead he had to be persuaded that the commendatus was worthy of receiving the requested favour because he was gratus and fidelis. The claims of friendship and patronage sufficiently legitimised the request. Consequently, nothing prevented the request of beneficia that were strictly speaking illegal or illegitimate according to the universalist order of the state, provided that the addressee could be persuaded that the request was a correct response to the gratia / gratitude he owed to the commendator and/or provided that he could be persuaded that granting the request would increase his gratia / influence with both commendatus and commendator. The functionality and dysfunctionality of gratia. Scholars differ in their assessment of the social and political functionality of the commendatio-system. On the one hand, we find researchers like Kelly and de Sainte Croix, who consider gratia to have been profoundly dysfunctional to the workings of the judicial system. On the other

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hand, we find scholars like Cotton, who sees commendationes as functional elements in a system of state that lacked a sufficient administration to provide essential services to the public.1546 Both phases of Roman procedural law (in iure before the judicial magistrate and apud iudicem during the actual trial) were vulnerable to bribes, abuse of power and influence, but this does not mean that these influences were accepted as legitimate interferences with the course of justice. We have numerous examples of manifest corruption and each time the practice was strongly censured. Accordingly, Kelly notes that although our sources take it for granted that gratia and potentia influenced the outcome of lawsuits and that plaintiff and defendant alike used both means if they could, it does not follow that these influences were accepted as legitimate.1547 Many of Cicero’s court orations refer to the gratia and potentia of the adversary as a threat to his client. In his oration Pro Quinctio, Cicero expressed his fear that the gratia of Sex. Naevius might damage his client. Naevius’s patron in court, Q. Hortensius, had expressed the same fears over Quinctius’s gratia. Cicero retorted by claiming that the praetor Dolabella had been well disposed to Naevius and had forced Quinctius to accept a very unfair sponsio that had turned Quinctius from defendant into plaintiff, placing the burden of proof on him. The case is interesting because it opposes gratia/potentia to aequitas.1548 A long passage in Cicero’s Pro Caecina extols the perfection of ius ciuile, which was free from gratia and potentia influencing the proceedings and outcome of trials but not the content of laws.1549 In his oration Pro Roscio Amerino, Cicero accused the influential freedman of Sulla, Chrysogonus, of using his gratia to have an innocent man condemned for patricide.1550 Clearly, therefore, the exercise of gratia was condemned as opposed to equity and justice. The fact that orators like Cicero and Hortensius tried to blacken the adversaries of their clients by asserting that their gratia and potentia corrupted the verity and equity of the law is significant because it shows that the particularist rules of ‘friendly’ behaviour (the officia)

1546 KELLY (1966), p. 56-68; SAINTE CROIX (1954), p. 42-45; COTTON (1978); COTTON (1986); BRAUND (1989). 1547 KELLY (1966), p. 33, 43. See also DENIAUX (1993a), p. 279-280. 1548 CICERO, Quinct. 2; 68-71, 84. 1549 CICERO, Caec. 71-73. 1550 CICERO, Rosc. Am. 28; 122. For other examples from Cicero’s orations see KELLY (1966), p. 46-49.

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conflicted with the universalist criteria of the state that ought to prevail. Garnsey has drawn attention to another feature of Roman law: the respect for status (dignitas).1551 The higher status levels of Roman society generally accepted the Aristotelian idea that justice ought to be proportional. ‘Equity itself is iniquitous when it has no (respect for the) degrees of dignitas.’1552 Members of the aristocracy thought it self-evident that officials and judges respected their dignitas and valued their word more than that of a commoner. A praetor could properly reject accusations brought by ordinary citizens against a notable.1553 According to Garnsey, ‘it was considered perfectly proper that verdicts should be affected’ by the auctoritas of accusers, defendants and witnesses: ‘justice and equity were thought thereby to have been achieved rather that compromised.’1554 Under the Empire these informal privileges received legal recognition and different systems of law were established for humiliores and honestiores. However, Garnsey’s theory cannot explain everything. Kelly shows that trials involving humiles against honestiores are virtually unattested. Cicero’s orations all concern cases between peers. Therefore, we should make a difference between status-privileges on the one hand and gratia on the other. The ideological tension between iustitia and gratia remains. Kelly, therefore, interprets the commendationes as illustrations of how gratia disturbed the normative order of iustitia. Cotton disagrees with Kelly’s interpretation of the commendationes as improper influences. In her view, commendationes were mainly ‘calls for the exercise of auctoritas’ and not ‘calls for coercion’. ‘Interference (sc. by the governor) … does not necessarily constitute a violation of justice, since the discretion of the governor was wide and the system was flexible: the use of discretion need not entail a reversal of justice.’1555 According to Cotton, most commendationes did not request that the law be broken, but merely incited a magistrate to take action. She points out that Fronto compares the practice of the commendatio with that of the

1551

GARNSEY (1970), passim. CICERO, Rep 1, 43: Ipsa aequabilitas est iniqua, cum habet nullos gradus dignitatis. 1553 See GARNSEY (1970), p. 181-218. 1554 GARNSEY (1970), p. 212-213. 1555 COTTON (1986), p. 454. See also DENIAUX (1993a), p. 279-280. 1552

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laudatio and interprets Cicero’s personal recommendations as character witnesses for the commendati in question.1556 In my view, both Kelly and Cotton fail to acknowledge the complex but crucial link between the Roman civil order (based on universalist criteria) and the Roman social order (based on particularist criteria). The Roman State had no effective administration through which she could reach her citizens and vice versa. From a social point of view, the political system was effective mainly to control potentially violent conflicts between ‘big-men’ and their supporters and to offer these big-men the opportunity to achieve social distinction and to provide them with the means with which they could gratify their supporters. In the eyes of the elite, the state was not meant to be an autonomous institution providing services or guaranteeing the rights of its citizens, for which it would need an effective administration and police force. This was the social obligation of the elite itself. The state merely provided the means and laid down the rules and proceedings. The few administrative personnel there were (apparitores, scribae) fit into the patronal system with which the aristocracy controlled the institutions. Cicero’s scriba in Cilicia, for example, M. Tullius, was a necessarius.1557 It need not surprise us, therefore, that the operation of the system cannot be analysed as that of an apparatus designed to provide special services. It was rather a system designed to allocate power and to regulate competition among the powerful. As such it proved to be especially suitable until the late second century, when on the one hand the magnitude of factual power entrusted to individual generals in the provinces had outgrown the powers of the central institutions, while on the other hand an increasingly larger group of poor citizens needed state intervention in the form of land and free or subsidised grain to survive. These poor citizens – who undoubtedly enjoyed the sympathy of many more of their fellow Romans – harboured very different expectations from their state and from their politicians and were willing to back any individual nobleman who promised them land, food and debt-relief.1558 These tensions ultimately led to the downfall of the Republic.

1556

COTTON (1986), p. 457. CICERO, Att. V, 41; Fam. V, 20, 1-2; VIII, 11b, 4; XIII, 22, 4. Not Cicero’s libertus as was once thought: TREGGIARI (1969), p. 250; FABRE (1981), p. 352. See SHACKLETON BAILEY (1965-1970) III, p. 194-195; SHACKLETON BAILEY (1977) I, 466-467. See also supra the case of M. Marcilius p. 306. 1558 See HOPKINS (1968). 1557

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The lack of an efficient administration may help to explain why commendationes were appreciated as means for outsiders to set the administration in motion. Cotton believes, therefore, that the letters of recommendation ‘fulfilled an essential function in a system of government which left the governor with wide discretionary powers on the one hand, and without the machinery needed to carry out judicial and administrative transactions on a regular and impersonal basis on the other hand. Hence, we may regard these letters as part and parcel of the Roman political system as opposed to the ancillary role which they have in modern bureaucracy. One can hardly regard letters of recommendation as irregular interferences in the regular working of government where no such regularity existed.’1559 This is true, of course, in so far as the quantitative and qualitative importance of recommendations are concerned, but it does not follow that the object of recommendations and interventions was necessarily legitimate. Cotton analyses Cicero’s letters in an attempt to find ‘extenuating circumstances which would keep the exercise of gratia within the bounds of iustitia and allow it to be compatible with it.’ However, she is taking the argument very far, arguing, for example, that requests to governors not to allow accusations to be brought against a commendatus were not illegitimate because classical Roman law never recognised the notion that individuals had an inalienable right to bring charges in court against others.1560 Of course, it is true that praetors and other judicial magistrates had large discretionary powers to grant actions, but to conclude that the arbitrary denial of actiones by judicial magistrates was considered legitimate is quite a different matter. A lex Cornelia from 67 limited the discretionary powers of praetors considerably. It stipulated that praetors had to administer justice according to the terms of their edict. Asconius – our only source for the law – adds that the law put a stop to the partiality (studium) and influence (gratia) among ambitious praetors who were wont to administer justice arbitrarily.1561 Considering the fact that provincial governors derived their

1559 COTTON (1986), p. 451-452. See also FIORE (1997), p. 75; SALLER (1982), p. 79-118; GARNSEY & SALLER (1987), p. 153-154. 1560 COTTON (1986), p. 453. 1561 ASCONIUS, Corn. 52 (ed. Clark): ut praetores ex edictis suis perpetuis ius dicerent: quae res studium aut gratiam ambitiosis praetoribus qui uarie ius dicere assueuerant sustulit.

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imperium from their original election to an urban magistracy – in most cases the praetorship – the law is likely to have applied also to provincial governors.1562 At any rate, the Cornelian law proves that the judicial magistrates deviated from their own edict in their administration of justice because of gratia and that such deviation was generally disapproved of. The essential element in Cotton’s argument is the role played by existimatio as a social control mechanism. According to her, the hedging clauses included in most letters of recommendation, such as ‘as far as your fides and dignitas will allow’ (and variants), were not just hollow phrases.1563 Existimatio protected iustitia because an official who acted iniustum or inhonestum suffered loss of prestige, while prestige was essential to maintain a high social and political position.1564 Braund notes the same phenomenon without drawing the same conclusions. On the contrary, he interprets commendationes as a symptom of the dysfunctionality of patronage.1565 This is in line with what Ramsey MacMullen found in a number of papyri, where gratia guarantees impunity for criminals rather than justice for victims.1566 As a social control mechanism existimatio failed to force governors to obey the requirements of justice. On the contrary, thanks to his provincial patronage a corrupt governor could assure himself of a good but undeserved reputation at home. Thus, for instance, Syracuse and Messina sent emissaries to Rome to bear witness in favour of Verres. Verres’s amici in Rome almost succeeded in saving him, and Cicero’s reputation was greatly enhanced

1562

I would like to thank my colleague Frederik Vervaet for this remark. See also MOMMSEN (1887) II, p. 240 on the term praetor meaning both praetor and propraetor / proconsul. Note that although most oaths of obedience to laws had to be made by magistrates only, they were evidently valid for promagistrates. See e.g. CRAWFORD (1996), p. 200 (Lex Latina Tabulae Bantinae 16), CRAWFORD (1996), p. 242-243 (lex de prouinciis praetoriis (?) Delphi Block C, ll. 10-15). 1563 See also CICERO, Off. III, 44. For more examples see DENIAUX (1993a), p. 268; COTTON (1981b), p. 12; Contra see KELLY (1966), p. 447-450 (‘stock phrases’). 1564 Cf. COTTON (1986), p. 447-450. Contra KELLY (1966), p. 31-68. See also ENGELS (1990), p. 128-129 for an optimistic view. On reputation as a social control mechanism see GREIF (1989b); GREIF (1991) (note, however, that according to Greif what ultimately motivated people was ‘economic interdependence, not social norms regarding mutual help or altruism’ (GREIF (1989b), p. 869). For an elaborate model of the mechanism see GREIF (1989a), p. 31-89 1565 BRAUND (1989), p. 142-143. 1566 MACMULLEN (1974), p. 8-12. Cf also MACMULLEN (1986).

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precisely because he had succeeded against the strong opposition of Hortensius and others.1567 App. Claudius had horribly oppessed Cilicia during his term of office, but several Cilician cities were nevertheless prepared to send character witnesses to testify in favour of Appius in Rome, while Cicero made sure nothing detrimental to Appius’s reputation left the province.1568 When Aemilius Scaurus returned from his province of Sardinia in 53, he faced a charge de repetundis. Although his guilt was plain to everyone, he managed to assemble an impressive backing of prominent nobles and was acquitted with an overwhelming majority.1569 Thanks to gratia reputation could be manipulated and a good reputation be undeservedly acquired. The fact that Cicero and others published their letters of recommendation only shows that the practice was taken for granted. It does not follow that the commendatio-system could not be manipulated or abused. The hedging clauses we find in most letters of recommendation indicate that a potential conflict existed between gratia and iustitia whereby the latter was threatened by the former. However, Cotton is undoubtedly right in her assessment of the commendatiosystem as the only effective alternative for businessmen and other citizens to obtain access to basic resources distributed by the state, even if the allocation of these resources through the system was neither in our view nor in that of its contemporaries fair or just. Businessmen operating on a supra-local scale and members of the elite with interests in the provinces alike depended on commendationes to conduct their business. Those who could not muster any influence and had to operate without recommendations suffered a major competitive disadvantage and were permanently in danger of being cheated by those who were gratiosi.

1567

See DE LA VILLE DE MIRMONT (1938), p. 39-44, 79-84. Note, however, that Verres’s amicitiae may have been little more than venal pacts: see BRUNT (1980). 1568 See GRUEN (1974), p. 352-354. 1569 GRUEN (1974), p. 332-337; DAVID (1992), p. 624-625.

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CONCLUSION.

This book has been organised as a collection of analyses of different fields of application of officia. We first studied the impact of amicitia on the allocation of resources in three crucial ways, viz. through gifts, loans and inheritances. The focus then turned to the organisation of economic activities through the use of the gratuitous agency contracts of procuratio and mandatum, the Roman contract of partnership (societas) and the much vaguer use of influence. From an analytical and practical point of view this approach seemed inevitable and the most promising. However, every chapter of the book has also shown that such a conceptual breakdown of the interaction pattern between friends, patrons and clients is at variance with social reality. Relations of reciprocity are tied together by what Eisenstadt and Roniger termed ‘package deal exchanges’.1570 The significance of singular services, therefore, can only be understood in terms of the total package of services of which they are a part. The fact that social actors manipulate the norms of friendship to acquire specific resources does not alter the diffuse and global nature of friendship. So instead of assessing the economic importance of each separate class of beneficia we must assess the overall importance of amicitia and patronage to the Roman economy. Before we attempt this however, it is useful to review briefly the findings of the different chapters.

A BRIEF SURVEY OF ECONOMICALLY IMPORTANT BENEFICIA / OFFICIA.

1.7 Gifts and presents. Gift-exchange was pervasive in Roman culture and put its stamp on almost every social relationship of any duration. Friends, patrons and

1570

EISENSTADT & RONIGER (1984), p. 48; EISENSTADT & RONIGER (1980), p. 49-50, 214215, 250. See also MAUSS (1923-1924), p. 37: ‘un système de prestations total’; WOLF (1966), p. 13; MÉDARD (1976), p. 117. For the Roman world FREYBURGER (1986), p. 181; SALLER (1982), p. 15-16, 119-139; DELGADO (1987-1988), p. 363 DUTHOY (1984), p. 148-151.

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clients were expected to exchange gifts. Every gift was a beneficium that expressed the partner’s willingness to continue the relationship. Especially when a gift was substantial, it laid a debt of gratia on the recipient that obliged him to reciprocate. Generosity displayed the virtue of liberalitas expected from a notable. Although gifts to friends, patrons and clients always pretended to be given unconditionally, this was factually contrary to the inescapable imperatives of gift-exchange. Any gift inevitably placed the recipient under the obligation to reciprocate. This did not mean that every friend and benefactor gave only with an eye to a profitable return, but the system was prone to manipulation in this way. According to Pliny, Horace and Martial, gifts were like bait on an angler’s hook with which valuable amici could be caught. Seen from such a perspective, Donations can be construed as investments in the construction and consolidation of relations based on mutual personal advantage. Anything could become a gift: jewels, cloth, land, houses, cash money, and so forth. Except for the candles that clients sent to their patrons and the little clay puppets that friends gave to each other on the occasion of the feast of the Saturnalia, there were no specified ritual gifts for specific occasions or kinds of social relations. Gifts of land had a special value because they raised the social status of the recipient. Although the vast majority of gifts were symbolic and had little intrinsic value, valuable gifts worth tens- or even hundreds of thousands of sesterces nevertheless belonged to the normally expected exchange pattern between friends. However, although valuable gifts were by no means exceptional, they were not very frequent and were nearly always a response to a specific occasion. By far the most spectacular cases of valuable gifts were made in times of crisis or when the recipient had suffered some serious loss. These gifts constituted help in times of war or exile, help to pay fines, help to pay debts, and so forth. In other cases, valuable gifts were meant to support or improve the social status of the recipient, for example, to pay dowries or to help a person acquire the minimum property qualification for a knight. The most frequent valuable gifts, however, were payments in disguise. The most familiar examples are payments to lawyers or Donations by a general to his officers and soldiers. Although these ‘gifts’ can hardly be considered true beneficia, it is significant that ideologically they were framed in such terms. In these cases, the moral matrix of amicitia clearly served as a mechanism to justify actions that were intrinsically selfish or (deemed) improper.

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The dividing line between loans and gifts was thin and merged in a twilight zone. This was true mainly for Donations in cases of crisis when money (or other valuable objects) was given unconditionally but in the expectation that the recipient would eventually repay it if he could. The widespread scholarly assumption that clients received a daily standard fee or sportula of 100 quadrantes is misleading. Such daily sportulae are attested only in Martial and Juvenal. The sum should not be taken literally as the standard or average amount given, but merely indicates a proverbially small sum. However, the proverbial standard of 100 quadrantes (6.25 sesterces) is interesting in itself because such a sum would have been small only in the eyes of the elite. On a yearly basis it would have constituted more than what the majority of the population earned or needed to earn. Thus the fictitious picture itself suggests that those clients who supposedly depended on their patrons economically were reasonably well off. We should beware of concluding that no one depended economically on patronal assistance in the form of gifts of allowances. We can be quite sure that the intellectual elite (apart from those persons who were knights or senators themselves, like Cicero, Pliny or Tacitus) depended on patronage and friendship as their main source of income even if the most talented among them had a choice of patrons to pick from and eventually achieved economic independence. It is simply impossible to estimate what percentage of the population at large depended on gifts from patrons to maintain their economic position. The aggregated potential is quite large, but the actual percentage may have been very much smaller. We can be fairly certain, though, that patronage was not a social support system for the poorest in Roman society. Even the poorest clients were not beggars or outcasts. Although some clients probably depended on their patrons for daily or monthly allowances constituting the bulk of their income (in exchange for a variety of services), the majority of ‘poor’ clients were clients who had to work for their living. To them patronal assistance was vital mainly in times of crisis such as food shortage, disease, natural disasters and so forth. 1.8 Loans and sureties The Roman credit system depended largely on amicitia. However, this does not mean that commercial loans or loans at interest were of only marginal importance. It is true that amici were expected to help each

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other with free or cheap loans, but not all loans between friends were free of interest or inordinately cheap. Like valuable Donations, free and cheap loans were in most cases responses to emergency situations and the difference between these and actual Donations was small. Political leaders used free or cheap loans to build and consolidate a power-base. Promising young politicians, however, were not always prepared to bind themselves in this way and the numerous examples of young politicians with heavy debts to professional money-lenders suggests that many only accepted free loans from the oligarchs when they had no alternatives left. Yet even interest bearing loans were preferably requested from friends and affines who could more easily be persuaded to grant favourable terms. Conversely, faeneratores preferably lent to persons whom they knew they could trust and on whom they could exert extra-legal pressure if necessary. Mediation in financial affairs was part of the package deal of mutual favours between amici, which also included, for example, legacies or recommendations that amply remunerated the mediator for his efforts. The elite turned to amici and protégés in business circles to place and manage loans at interest. In some cases, this mediation took on a different guise when amici borrowed money at interest which they subsequently lent out at interest in their own name. In doing so they took the risk of the operation upon themselves, which they compensated for by charging a higher rate of interest than that which the original financier received. Although their services thereby ceased to be beneficia, the amicitia with their financiers was not destroyed and served as a platform of mutual trust supporting business activities. Standing surety for friends and kinsmen was a strong social obligation. In many respects, however, personal surety in the Late Republic and Early Empire was not comparable to modern types of surety. Thus we see in a number of cases that suretyship was conceived as a favour to the creditor rather than to the debtor. In many cases, sureties played an active part as mediators in obtaining a loan or in negotiations between creditor and debtor when the latter proved unable to repay. In case of defraud, sureties co-operated with creditors to put pressure on debtors. To sue a personal surety instead of his principal was the last resort in a long process of negotiations, extra-legal pressures and arbitration. The importance of amicitia to the financial system as a whole went even further. Permutationes (the only way in which funds could be transferred from one place to another without the physical movement of cash)

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could only be organised through networks of amici since there existed no legal way to enforce the payment of a debt to a third party not involved in the original contract (delegatio debitoris). The organisation of permutationes, therefore, required the availability of a dependable partner who could be trusted to carry out the request. Loans to friends were extended for a variety of reasons. Productive loans, however, were rarely (if ever) given interest free or at a low rate of interest. Yet at interest, productive loans as well could be obtained from friends or through friends at favourable terms. So although amicitia did not directly generate interest free productive credits, it did establish channels through which productive credit could be obtained. The Roman credit system was strongly personalised. The values that stamped the moral matrix of friendship also determined debt relations. Liberalitas was naturally the prime criterion for free or cheap loans, but it would be a mistake to narrow its significance to such financial beneficia. Remission of payment or other forms of leniency towards debtors also counted as liberalitas. A notable could engage in money-lending at interest on condition that he upheld his reputation as a homo liberalis by showing leniency from time to time, so amicitia in this respect served as a catalyst to generate liberalitas. The existence of a relation of fides, such as between friends or patrons and clients, virtually compelled a financier or a surety to show liberalitas. Liberalitas in turn entitled a creditor to gratia from his debtor. This gratia-obligation went beyond the correct and timely repayment of borrowed sums. It bound the debtor personally to his creditor. Conversely, gratia could be used to persuade a person to extend a loan or to stand surety for a loan. The demands of fides also required that friends or affines in need were assisted financially. Conversely, however, a debtor engaged his fides whenever he took a loan and although the term acquired the technical meaning of solvency, it was never freed from its social and moral implications. Fides in debt relations applied to the entire social personality of the debtor and signified both his solvency and his general social credibility. As such, fides in debt relations determined a person’s existimatio, his honour and prestige. Ideologically, defraud, for whatever reason, cast a debtor into social isolation because it infringed on what was considered the most fundamental aspect of social relations: fides. Legally, this was reflected in the exceptionally severe punishments that the law provided for defraud.

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The Roman credit system as a whole is comparable to various credit systems in Early Modern Europe. In both periods we see that credit was preferably requested from and extended to or through friends and family. In neither case did this imply that the loans in question were free of interest. Banks played only a secondary role and the main commercial financiers operated mainly with their own means or those of their associates, business friends and family. Trusted mediators played an important role in both periods. Last but not least, in both periods there was a close connection between honour and creditworthiness reflected in the meaning of the words for credit (crédit, fides) which signified both social credibility and solvency. 1.9 Inheritances and legacies. Any honourable Roman – man or woman – was expected to make a will and to honour his amici with shares and legacies. To die intestate was deemed improper. Near kin came first in the order of relations who were entitled to be remembered in a will, but close friends had a strong moral claim as well. To mention amici, patrons and clients in one’s will constituted the ultimate beneficium a person could bestow on them. It served as the final expression of gratia for favours received. To be remembered in the will of a non-relative was considered especially honourable and the number of wills in which a person was mentioned served as a measuring rod for his or her social prestige. Conversely, the omission of an intimate friend brought scandal on either the testator or the ignored friend, depending on whether or not the decision of the testator was approved of by the public. Usually, a small number of near kin and/or intimate friends or patrons inherited the major part of the inheritance while a much larger group of more distant relatives and amici received legacies, symbolic shares or honorary appointments as heirs in the second or third degree. Important military and political leaders often received shares and legacies, a practice foreshadowing the later habit of leaving shares and legacies to emperors. When only distant relatives were available, friends could legitimately hope for substantial shares. Testamentary habits, however, offered a wide scope for manipulation. Legacy hunting or captatio testamenti (we should rather say testament hunting) loomed large in the collective imagination of the Late Republic and Early Empire. Captatores cherished amicitiae with rich and usually

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childless elderly people, hoping to inherit their fortunes. Conversely, testators used the anticipation of shares and legacies to bind amici. Testamentary forgery was much facilitated by the unusually open testamentary practices, since no one was surprised to find that a testator had preferred a non-relative to a distant relative. It would be wrong to consider legacies and shares of inheritances as typical forms of payment for advocates in court. The comparison with ‘payment’ is unfortunate to begin with because the infamous ‘mercenary patrons’ (patroni mercennarii) were certainly not prepared to wait for an uncertain reward in an unpredictable future. Secondly, shares and legacies could be merited by a variety of services among which advocacy and legal assistance were only one type. It is remarkable to find that a considerable number of shares and legacies to senators came from negotiatores. Everything indicates that this was not a response to defences in court, but mainly a response to the exerciseof influence through recommendations. The demographic regime of Roman society meant that many died childless. Consequently, the aggregated value of all resources that were distributed through wills to friends, patrons and clients was considerable. Augustus instituted a five per cent tax on shares and legacies to non-relatives, hoping that the proceeds would cover most of the discharge premium for the veteran soldiers. The micro-economic importance of testamentary practices for the income of the Roman aristocracy was huge. Senators, knights and local gentry derived a substantial albeit unpredictable income from inheritances and legacies. The practice of appointing guardians in a will for the daughters and underage children of a testator, is an aspect of testamentary customs that is seldom fully appreciated. Saller estimates that approximately a quarter to a third of all children younger than fourteen had lost their father and were, therefore, in need of a tutor. For a father to die without appointing guardians for his daughters and minor children was disgraceful. The need to appoint tutores was a compelling reason for making a will which was at least as strong as the need to dispose of one’s patrimony. To be appointed guardian of a man’s children was particularly honourable. Conversely, not to be appointed guardian to the children of a near kinsman was a shameful sign of disapproval. Since it was habitual to appoint several tutores, a pater familias had the opportunity to honour a number of friends and protectors besides relatives.

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1.10 Mandata, negotiorum gestio and procurationes. Friends were expected to assist each other in the management of each other’s patrimonies. Such assistance was covered legally by the contracts of mandatum and negotiorum gestio, depending on whether the help was commissioned or non commissioned. Procuratio originated as an obligation between friends (officium amicitiae) and never wholly lost this quality. Salaried and freedmen procurators developed only later. It was only under the Empire that salaria received legal recognition. However, Roman jurists continued to distinguish them from remuneration in a contract of locatio conductio (operis / operarum). Both mandatory and procurator stood in a relation of fides to their principal. The services they provided were firmly rooted in the mutual exchange relationship they enjoyed with their principal. Although mandatories and procuratores benefited from their position through gifts, loans, sureties, shares and legacies, (later) salaria, and so forth, ideologically there was no quid pro quo link between the services they offered and the rewards they received. The faithful discharge of a mandate or procuratio constituted a beneficium conferring a gratia-debt on the recipient that called for a return favour of at least equal value. The term procurator carried no socially denigrating connotations. Procuratores could belong to both the higher social strata and to the lower. Besides freedmen (who presumably received a legally unenforceable salary as early as in the Late Republic), we find freeborn procuratores from all social classes. Procuratores could be chosen from among a person’s peers, his protégés or clients or his social superiors. The fact that important procuratores usually belonged to the peer group or were socially superior to their principal was an almost inevitable consequence of the lack of direct representation in the Roman system of agency. It implied that a procurator was personally liable for all actions he undertook on behalf of his principal and that he had to stand surety (satisdatio) whenever obligations of principal and third party towards each other had to be created or extinguished. Such personal liability and suretyship were meaningless unless the procurator was himself creditworthy. In practice, the lower procuratores supervised and worked closely together with slave uilici or institores / magistri nauis who had mainly executive responsibilities. Paradoxically, although the latter served as direct agents for their master thanks to the actiones adiecticiae qualitatis,

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as slaves without legal capacities they could not represent their master legally. Their scope of action was accordingly limited. 1.11 Societas The partners in a societas shared profit and loss (communicare damnum et lucrum). The services that were provided within a societas, therefore, could not be conceived as beneficia, nor could they engender gratia. Nevertheless, societas cannot be understood in isolation from amicitia, since, like mandatum and procuratio, it rested on a relation of fides between the socii. Societates were formed with relatives and amici, not with strangers. The intimacy and multiplicity of these personal relations explain the general nature of the fides that underlay the societas bond. 1.12 Recommendations and gratia. The exerciseof influence (gratia) on behalf of friends and protégés was an important obligation with which gratia could be earned and returned. A secondary beneficium that was mediated by a person who recommended someone to another gave as much rise to gratia as a primary beneficium directly from the benefactor did. Commendationes, therefore, belonged to the mutual exchange of favours that held an amicitia together. Consequently, a person’s gratia (in the sense of influence) was determined also by the resources (beneficia) he did not control personally but the access to which he mediated. Recommendations were part of a notable’s public display. They showed that he conformed to the social obligations he had towards friends, protégés and relatives and displayed his influence and power. Showing influence was crucial to the brokerage system on which much of the power of Roman notables depended. To enjoy a reputation for being gratiosus (influential) meant being able to convince others to deliver wanted resources in the hope of receiving return favours. This reinforced the broker’s position and reputation, which in turn convinced others that he was gratiosus - influential, stirring them to provide the resources with which he could repay the debts of gratia he had laid upon himself. Gratia / influence thereby generated channels along which resources could be distributed. Chains of benefaction and obligation could arise in which a commendatus appealed to an amicus, who recommended

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him to another amicus who again recommended him until someone was finally reached who directly controlled the resources needed or wanted. Networks of gratia / influence thus expanded until their limits became invisible. Conversely, however, such networks were vulnerable because as soon as a person’s reputation for influence was lost, the broker-benefactor lost access to secondary beneficia. His influence thereby diminished even further so that he had to disappoint even more people, inflicting further damage on his reputation for influence. Reputation (existimatio), therefore, was a crucial element in the control of brokerage networks. Recommendations were the prime beneficium that businessmen expected from their amici magni. Approximately 25 to 30% of attested recommendations relate to businessmen or business interests. Most attested recommendations of which the object of the request is known to us relate to debts or property. On the basis of prosopographical information we may surmise that at least some merchants and producers are hidden behind a number of personal introductions. The use of recommendations was in any case not restricted to the world of financiers or large landowners. Most recommendations requested help in cases of conflict. Not all conflicts were dealt with in court. In many cases, gratia was used to avoid matters getting that far. If it came to a court case, gratia could be used to put pressure on the magistrate (usually the praetor or governor) or on the judge. After the judge had delivered his verdict, gratia was useful to enforce or to avoid the application of a sentence. The use of gratia to influence government decisions was almost routine. Through recommendations, privileges and exceptions to legal statutes could be obtained and the awarding of public contracts could be manipulated. A final valuable beneficium for businessmen that was attainable through gratia was the appointment to prefect or legate. This conferred an official status on them with considerable privileges and rewards (cibaria). A governor normally received numerous requests to confer praefecturae on businessmen who were amici of his amici. The practice was very unpopular among native inhabitants of the provinces, which indicates that the negotiatores derived substantial advantages from it at the expense of the natives.

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THE ECONOMIC FUNCTIONALITY OF AMICITIA.

Amicitia can be seen as a system of social exchange generating various resources. If we try to assess the global importance of this exchange to the Roman economy we find a number of significant contributions. On the micro-level, amicitia strongly influenced the position and success of individuals. On the macro-level, it generated conditions that contributed to the relative success or failure of economic sectors (an effect most clearly visible in the sector of finance). 1.13 The acquisition of income, material benefits and services. Amicitia can be construed as a form of human capital yielding an irregular interest. This ‘interest’ could be in the form of gifts or inheritances or legacies. The idea that patrons supplied their clients with a daily allowance in the form of sportulae should be viewed with caution. Nevertheless, more or less regular gifts could constitute an important source of income and we may surmise that a minority of the population depended on such gifts to maintain the life-style they deemed appropriate while an even smaller minority depended on it for their livelihood. Yet even the latter did not belong to the poorest in Roman society. The elite, on the other hand, derived a substantial income from inheritances and legacies. The ‘interest’ yielded could also be in the form of services. Most examples of mandate offered by Roman jurists are drawn from manufacture and handicrafts. Each time the jurists stressed that the difference between services provided under mandate and those provided under a contract of labour (locatio conductio (operis / operarum)) was that the former were free, whereas the latter had to be paid. The picture drawn is that of a world in which it was considered self-evident that amici provided services which otherwise had to be bought on the market. 1.14 The acquisition of capital goods The gratia that a person enjoyed could also be exchanged for capital goods. Thus we saw that estates were donated and money lent to buy land and farmsteads. We have no indication that the mechanism also applied to non-rural capital goods such as ships, workshops, warehouses and so forth, although Cicero’s inheritance of an apartment building (insula)

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with shops from Cluvius does indicate that non rural capital goods could indeed be included. Presumably, the predominance of rural capital goods is merely the effect of the strong bias of our sources toward the interests and values of the landed aristocracy. 1.15 The construction of social security One of the most important socio-economic contributions of patronage and amicitia was the provision of a personal social security system based on mutual trust and solidarity between amici, patrons and clients. Thanks to the obligations of friendship and patronage, family based networks of social security and solidarity could be considerably extended.1571 Accordingly, by far the most of attested important Donations were forms of emergency assistance. The aes alienum suscipere –paying another’s debts – was one of the expressly formulated obligations in friendship and patronage, taking the form of both gifts and free loans. In case of fire and undoubtedly other disasters amici, were expected to provide financial aid. The prime economic motivation for poorer clients - i.e. those who had to work for a living consisted of such assistance in times of crisis. The family of a retail trader, for instance, had an independent source of income in normal circumstances, but in case of disease, food shortage, death or other misfortunes, the support of a patron could be crucial in the absence of an effective public social security system. 1.16 The support of credit. The main contribution of amicitia to the financial system did not consist of free or cheap loans. Amicitia was mainly important in the creation of necessary trust behind credit transactions. Someone’s fides (in the sense of creditworthiness) reflected the entire network of relations on which he or she could rely on to stand surety or to intervene in case of possible inability to repay. Thus networks of friends formed platforms of trust on which credit transactions could be staged. These networks had ramifications extending from the elite to the lower classes and to the business world, thus enabling the elite to ‘invest’ their liquid surplus in business

1571

On the creation of trust and solidarity beyond the basic family unit as the main social function of patronage and friendship see EISENSTADT & RONIGER (1984) passim; MACHEREL (1983), p. 152; CAMPBELL (1964), p. 26; HALL (1977), p. 510-511. For ancient Greece see GALLANT (1991), p. 143-169.

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and extending patronal protection against bankruptcy and defraud to the lower classes. Amicitia was all the more crucial in an economic context in which the system of contracts, justice and police offered insufficient stability or security to support credit transactions. In cases of defraud, networks of friends provided a way to exert pressure on the debtor or to initiate court proceedings. 1.17 The management and pursuit of economic activities. Friends, clients and patrons played a part in the management of economic activities through mandatum and procuratio. In both cases, services were provided that placed a heavy burden of responsibility on the agent and required the principal’s considerable trust in his agent. In financial transactions procuratores and mandatarii were commonly deployed to arrange loans, to call on debtors for repayment, to make payments and generally to deliver most other services that modern banks provide. In the management of enterprises we have seen that procuratores controlled slave bailiffs (uilici, actores) and managers (institores, magistri nauis). The main alternative to management through procuratio was through a societas, in which one socius acted as manager or entrepreneur. The main difference was that the services provided by socii were not offered freely. All socii shared profit and loss. Nevertheless, with societas as well, the relation between socii rested on amicitia or cognatio. Networks of friends could also be deployed in a more informal way to achieve economic goals. Through the use of gratia / influence favours such as privileges, legal exemptions or official posts that were highly instrumental in the pursuit of economic goals could be acquired. Through recommendations, these favours could be mediated on behalf of others. Such favours constituted secondary resources, with which an entrepreneur or anyone else having economic interests could influence the meso-level in which his organisation operated. 1.18 Access to government and administration. The Roman Republic had hardly any effective administration through which the government could communicate with its citizens and subjects. The only efficient way in which the government could be approached was through gratia and recommendations. Personal networks took the place

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of an impersonal administration when a person needed something from the government. For the individual commendatus the system was functional since it stood in for a virtually non-existent administrative system. This does not mean, however, that the system was functional to the stability and cohesion of the society and economy at large. Formally, the Roman state, like the Greek city states, was a citizen state in which rights and obligation were distributed on the basis of impersonal universalist criteria. However, in reality the parallel system of patronage and amicitia largely determined who could enjoy these rights and who could not. Consequently, personal relations formed the only solution to the risks involved in deploying economic activities on a supra-local scale. Only in this way could a businessman count on effective protection from the courts, while at the same time benefiting from the often-illegal advantages available through gratia within the parallel hierarchies. 1.19 Information channels. Networks of friends offered a partial answer to the information problems inherent to the deficient communication over longer distances in any pre-industrial economy. Information moved painstakingly slow, at best with the speed of a ship or a horse. Not coincidentally, friends were expected to inform and advise each other.1572 Thus personal networks were particularly apt at acquiring relevant information, based on which an entrepreneur could take the most suitable decisions.1573 1.20 Amicitia and Roman law. Much attention has deliberately been paid in the different chapters of this book to the legal framework within which the economically relevant officia amicitiae were provided. On the one hand, the apparent deficiencies in this framework help to explain the importance of amicitia in economic transactions, while conversely the considerable importance of amicitia helps to explain why the need to remedy these apparent deficiencies was not felt. To ascribe priority of cause and effect to either one would be meaningless.

1572

Cf. MICHEL (1962), p. 536. On the information problem see GREIF (1989a), passim; GREIF (1989b); GREIF (1991); VAN HOUDT (1997). 1573

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The Cincian law de donis et muneribus forbade gifts above a certain amount except between close relatives. The law was imperfecta and neither fined transgressors nor annulled their Donations. Not surprisingly, the law had hardly any apparent effect. However, seen from the perspective of liberalitas the Cincian law makes sense, since it instituted an exceptio that assured that Donations would be unenforceable regardless of the contractual regime under which they had been promised. Mandatum, negotiorum gestio and societas were totally inefficient constructions to support formal hierarchical organisations, but they fit perfectly in a management system built on personal networks. The virtual non-existence of direct agency by free persons and the lack of corporate capacity for private societates are normal aspects of a network system. In the context of a pre-industrial economy the principle of indirect representation was not necessarily disadvantageous. It implied that whoever did business with a procurator or mandatory did not have to concern himself with the creditworthiness or reliability of the principal, since the agent was personally liable himself. Conversely, the principal did not have to concern himself too much with how his agent conducted his business, since the latter always ran the risk of having to pay the bill. If the principal refused to recognise the actions of his agent, the latter first had to satisfy the third party before being able to sue his principal with the actio mandati. He then not only had to prove he had been commissioned but also that he had faithfully and diligently executed the commission without fraud (dolo malo) or negligence. The system might seem inhibiting from a modern perspective, but it offered a solution to the problems of communication and delegation with which large organisations throughout the Empire were confronted. Legally speaking, societas was not a separate ‘corporate’ entity. It existed only as co-operation agreement between independent partners, each of which had the right to end the partnership at any time. Each of the socii was liable in solidum for any action he undertook in the framework of the societas and could use the actio pro socio only post factum to take redress on his partners. Societas was never an enterprise in itself, although it could offer a legal platform for partners upon which to build an enterprise, for example, through the use of common slaves and capital goods. When we look at the legal framework of the financial system, the regime of personal surety is remarkable. The surety in Roman law was

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nothing less than an alternative debtor. A creditor had the choice of demanding repayment from the actual debtor or from his sureties. If he chose the latter and the surety contested the debt, the actual debtor was no longer liable towards his creditor; if he chose the former and the creditor contested the debt the sureties were no longer liable. From a modern perspective the rule seems unreasonable since it would suppose that the creditor knew in advance whether or not his debtor was solvent. In reality, the surety mostly served as an active mediator between creditor and debtor rather than as a passive guarantee of repayment. In case of defraud, his first (moral) obligation was to put pressure on the debtor, with whom he normally enjoyed a close personal relationship. His liability, therefore, was first and foremost a way for the creditor to put pressure on the surety to assume the role of influential mediator. In short, the limited development of Roman business law - according to modern standards - did not reflect the primitive character of the Roman economy, but the organisation of the economy along the lines of personal networks of friends, patrons, clients and relatives.

AMICITIA AND NETWORKING.1574

The importance of amicitia goes beyond the level of dyadic relations. Each tie between two amici (or patron-client) receives its full significance only within the larger social network of personal relations surrounding both amici. Thus it is not necessarily any particular amicitia that determines a person’s creditworthiness, but the entire network of friends, family and relatives that looms behind him. Network analysis in sociology has become an art of its own, with a particular methodology and concepts. The approach relies heavily on mathematical graph theory. A finite set of individuals (or groups or organisations) is represented as a mathematical set. Every individual is then linked with a number (incl. zero) of other individuals, each link signifying a previously defined relation (for example ‘family of’, ‘friend of’, ‘just acquaintances’, …). This produces a graph that may in turn be represented in a matrix.1575

1574

On networks see BOISSEVAIN & MITCHELL (1973); MAYER (1977). For a sociological analysis of Cicero's personal network see ALEXANDER & DANOWSKI (1990); for Aristides’s personal network see REMUS (1996). 1575 See NIEMEIJER (1973).

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The advantage of such an approach is that pattern and density analyses can be made distinguishing different types of networks. Maximum density (100%) is reached when every member is linked to every other member. At zero-density, social interaction (of the kind under investigation) is absent. Density is not necessarily equally spread over the whole of a social network. Within a network, clusters of higher density may occur forming distinct patterns. Different patterns signify different kinds of networks. Thus a ‘primary star’ is a cluster of relations in which each individual is linked to the same other individual but not to each other. Patronage networks tend towards ‘primary star’ configurations, with the patron at the centre and few if any relations between his clients, whereas networks of amici show much more varied patterns.1576 Although it has been tried, network analysis of this kind is rarely possible or meaningful for ancient history.1577 One could, of course, analyse, for example, Cicero’s relations with the addressees of his letters of recommendation and with his commendati, but it is rarely possible, however, to verify relations between commendati, commendatores and addressees. Therefore, neither pattern- nor densityanalysis is possible. Moreover, in assessing the quality of a network we also need to know the intensity of a relationship. To compare a relationship between friends exchanging substantial resources with a relationship between friends in which no substantial resources are exchanged is methodologically unsound. Although a recommendation constitutes a beneficium of its own, providing access to resources, we rarely know what the commendatus offered in turn. Most recommendations simply mention familiaritas or necessitudo without further specifications, making it impossible for us to assess the intensity of the tie. Moreover, the claims of friendship brought forward in the letters of recommendation cannot all be taken at face value. Cicero’s recommendation for M’ Cluvius adduces an amicitia peruetus, whereas we know from a letter to Atticus that Cicero only met

1576

LANDÉ (1977a), p. xxxiv-xxxv. On the different types of networks see BOISSEVAIN (1974), p. 24-25. 1577 See e.g. REMUS (1996); ALEXANDER & DANOWSKI (1990). The latter studied by means of a computer simulation Cicero’s personal network based on his letters up to the year 51. The relation charted was simple contact (without distinguishing between friendly or hostile contacts). As could be expected the results were disappointing. The main conclusions were that there was no social or economic difference between senators and knights and that Cicero entertained more contacts with senators than with knights. The former is old news, the latter is hardly surprising for a senator of consular rank, especially when the source used is letters in which politics are a favourite topic).

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Curius on his home journey from Cilicia late in 50.1578 So in studying ancient networks, the ancient historian is left with the familiar tools of his trade, relying heavily on prosopography, textual exegesis and infamous empathy.1579 Nevertheless, sociological network analysis has provided useful concepts and insights. Thus we have seen that some recommendations expressly aimed at establishing new amicitiae between persons hitherto unacquainted but linked to each other indirectly through their common ‘friend’, the commendator. In sociological terms, this implies that these recommendations tend to increase the density of the social networks of the persons involved, a tendency, which, as we have seen, runs counter to the typical ‘primary star’ configuration of patronage. Therefore, although the practice of commendatio is typical of brokerage, which in turn is a form of patronage, at least some recommendations aim at reinforcing the commendator’s network of amici at the expense of his patronage network of clients. The process again reveals the close connection between amicitia and patronage, but it also indicates the basic openness and informality of Roman patronage in the Late Republic. Networks and reciprocal relations have to be maintained and constantly renewed. Since a personal network of friends, patrons and clients only exists as a particular configuration of dyads between individuals or corporate groups, this means in the first place that individual dyadic relations between friends, patrons and clients have to be maintained. The decision into which dyads resources will be invested determines not only which dyads will survive and how strong they will be, but also how the configuration of dyads forming the network will evolve. A personal dyadic relationship based on trust, solidarity and reciprocity can only survive as long as the partners continue to interact on a more or less regular basis. Symbolic officia, such as small gifts, social talk, presence at family celebrations and so forth, expressing the will of the partner to continue the relationship, play a major part in achieving continuity in a voluntary relationship. In a sense, all beneficia

1578 CICERO, Fam. XIII,17; Att. VII,2,3. Compare the case of Salvatore in BOISSEVAIN (1969), p. 381; BOISSEVAIN (1974), 150-151, where a complete stranger introduces Salvatore as his ‘carissimo amico’. 1579 For once at least some sociologists agree. See MITCHELL (1973), p. 29: ‘In participant observation the analysts are able to use ‘verstehen’ to make the initial abstractions from the actual behaviour and this in turn leaves it open to them to be able to distinguish the partial networks they wish to use in their theoretical synthesis’ (my italics).

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exchanged between friends, including the most valuable, have a symbolic aspect carrying a message of solidarity, trust and reciprocity constituting a pledge to continue the relationship. The wish to continue an existing relationship could suffice as a reason for investing valuable resources in the relationship. Valuable Donations, free loans and sureties generated gratia and bound the recipient to the benefactor, thus strengthening their relationship. Conversely, the anticipation of substantial resources could be the motivation to continue a personal relationship. Thus the anticipation of a legacy or a share of the inheritance could effectively bind a person into an amicitia. Personal networks are by definition personal or ego-centred. Whenever ‘Ego’ disappears, his network automatically disappears with him, since that particular configuration of contacts was unique for his person. However, for different reasons, both members of a personal network and Ego himself could wish to reproduce as much as possible of the set of contacts that Ego’s personal network provided them with. Testamentary dispositions were an excellent way to achieve this. The obligations that secondary heirs and legatees incurred could only be discharged towards Ego’s prime heir(s) - usually his children. The association of external heirs and legatees with the first heirs laid the foundation for further contacts between Ego’s successor and his most important relations. All those involved were forced to make arrangements concerning the execution of the will, offering each a chance to show benignitas and to acquire gratia. Arrangements on tutela in particular were an excellent way to transfer the nucleus of a personal network configuration onto Ego’s children.

PAYMENT VERSUS ADVANTAGE

We should beware of concluding that the Roman economy was at heart a non market-economy. Although conceptually, reciprocity and market exchange may be opposed, they not only coexist in reality but interact continuously. While the market economy profoundly influenced the operation of reciprocity relations and networks, the latter in turn influenced the market system. The concept of the ‘moral economy’ is at heart a heritage of structuralfunctionalism, which tries to explain society as a more or less stable system of groups and institutions imposing (generally) inescapable norms and role models on people. The theory of social networks developed in reaction to the limitations of structural-functionalism and redirected

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attention to man as an individually active manipulator, building and managing his own personal social environment for his own benefit and for the benefit of those for whom he cares. At the same time, however, network theory does not deny the importance of social norms and conventions, for although man is a manipulator he is also a social being, not only capable of empathy and altruism, but also willy-nilly dependent on others. Therefore, ‘it is impossible for him to achieve his own selfinterest unless he takes others into acount and can demonstrate that his action in some way benefits or does not harm them. … Pragmatic action is dressed up in normative clothes to make it acceptable.’1580 In my view, one of the major advantages of the network paradigm is that it focuses on manipulation by social actors rather than on rigid social norms, hedging in every conceivable course of action. Thus reciprocal exchange and reciprocity relations are prone to manipulation to achieve social, political and economic goals. It is commonly accepted that politicians try to manipulate political institutions through networks of reciprocity relations. Entrepreneurs use similar networks to win the market game. The cultivation of profoundly non-economic relations does not inhibit a person from using these relations to achieve economic objectives. The system of reciprocity relations emanating in instrumental friendship and patronage underlies the fabric of Roman society without predetermining any individual’s choice of purpose or action and without inhibiting the emergence of autonomous institutions in the fields of politics or economics. It is true that Donations, loans, inheritances and legacies created an alternative circuit for the circulation of goods and services in the guise of favours. Amicitia can thus be analysed as an allocation system sui generis. But at the same time this circuit did not exclude the allocation of scarce resources through markets. Both systems coexisted and influenced each other and it is my conviction that analysing either without the other is to miss a crucial feature of the dynamics of the Roman economy at large. Thus the officia amicitiae, for example, helped people to cope with the risks of the market system by creating non-family based social security networks. On the other hand amicitia generated important resources with

1580

BOISSEVAIN (1974), p. 6. See also ibid., p. 1-23 for a critique on structural-functionalism. On the development of social network theory see MAYER (1977), p. 43-45; NOBLE (1973); BANCK (1973); MITCHELL (1973).

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which to play (and cheat) the game of the market. It provided sureties for debtors, agents for entrepreneurs and anyone who had any money to invest or property to manage and access to privileges and exemptions. It stimulated the flow of information and offered a way to transfer funds without having to carry cash, and so forth. Relations of amicitia were always mutually advantageous, but they very much different from market relations relying on payment. The difference resided mainly in the fact that in amicitia a package of mutual favours was exchanged, in which a clear connection between specific favours was either absent or rejected. This does not mean that amici never paid for something they received from each other (for example a loan). Payment in particular cases did not destroy an existing amicitia. It simply stood outside the reciprocal exchange between friends. The economic strategy of the Roman elite, however, was largely built on amicitia, which means that they aimed at the creation and maintenance of diffuse advantage relationships that served both as capital yielding substantial benefits and as instruments for achieving economic goals.

* **

Little of what we have found can be considered unique for the Roman economy. It is my conviction that a social network analysis of entrepreneurial activity in Medieval or Early Modern Europe (to name only two examples) would show the deployment of similar strategies, but this is beyond the scope of this book. I hope to have shown, however, that instrumental friendship and patronage deserve to be taken into account in the analysis of how the Roman economy was organised and that their influence on the economy was both enormous and very complex.

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Abbius Oppianicus St. f., C, 192; 204; 216 Abbius Oppianicus, St., 160; 192; 201; 204 Acilius Caninus, M. (pr. 47 ?), 291; 292; 293 Adiatorix, tetrarch of Galatia, 294 Aebutia, 187 Aebutius, Sex., 193; 194; 216; 251; 266 Aelius Lamia, L. (pr. 42 ?), 127; 259; 273; 293; 317 Aelius Ligus, 191 Aelius Paetus Staienus, C., 91 Aelius Seianus, L. (cos 31 CE), 52 Aelius, P., 189; 192; 211 Aemilia (aunt and stepmother of Scipio Africanus the Younger, 88 Aemilia Lepida, 256 Aemilius Lepidus Paullus, L. (cos. 50), 87; 124; 130; 150; 152; 156; 157 Aemilius Lepidus, M. (cos. 46), 307 Aemilius Paullus, L. (cens. 164), 187 Aemilius Scaurus, M. (cos. 115), 91 Aemilius Scaurus, M. (pr. 56), 152; 329 Aemilius Avianianus, M. from Sicyon, 259; 266; 293; 299 Agusius, T., 295 Albinius, C. (or Albanius ?), 298 Albius Albinus, 193 Alexander Severus (Emperor), 170; 268 Alexio, 215; 216 Alfenus Varus, P. (cos. 39), 133 Alfenus, Sex., 244; 258 Allienus, A. (pr. 49), 293

Alypios, 256; 257 Ampius Balbus, L. (pr. 59), 310 Ampius Menander, T., 295 Anchialus Egnati Rufi ser., 294 Anicius, C. (senator), 296; 315 Anicius, T. (or C. ? = Anicius, C. (senator) ?), 266 Annaeus Mela, M., 217 Annaeus Seneca, L. iunior, 38; 44; 45; 52; 63; 64; 65; 81; 96; 102; 104; 111; 143; 147; 164; 168; 172; 174; 197; 210; 232; 249; 316 Annaeus Seneca, L. senior, 42; 46; 56; 58; 123; 174; 203 Anneius Carseolanus, M., 187 Anneius, C., 193 Anneius, M. (senator), 144; 296; 301; 304; 312; 314 Annius Asellus, P., 311 Antistius, T. (q. 49), 193; 302; 310 Antoninus Pius (emperor), 170 Antonius Creticus, M. (pr. 74), 80; 87; 122; 154; 171 Antonius Hybrida, C. (cos. 63), 91; 121; 124; 126; 151; 155; 167; 168; 250; 295; 315 Antonius M. (triumvir) = Marc Antony, 64; 75; 80; 81; 83; 87; 94; 102; 122; 145; 147; 152; 153; 157; 159; 189; 191; 194; 195; 196; 200; 205; 207; 216; 217; 219; 268 Antonius Philoxenos, 257 Appuleius, P. (?) (q. 48 or 47), 294 Apuleius ‘praediator’, 173 Ariobarzanes III, king of Cappadocia 52/51 – ca. 42, 269; 297; 303 Arrius, Q., 91 Arruntius Stella, L., 79

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Artemidorus (philosopher), 81; 87; 106 Asconius Pedianus, Q., 327 Asinius Pollio, C. (pr. 45), 186; 211 Asuvius, 160; 201 Ateius Capito, C. (tr. pl. 55), 83; 122; 159; 193; 292; 302; 310; 322 Aufidius Bassus, L. (filius), 131; 169 Aufidius Bassus, L. (pater), 131; 169 Aufidius Lurco, M. (tr. pl. 61), 315 Aufidius, Sex., 193; 292 Augustus (emperor), 72; 76; 142; 165; 169; 170; 187; 190; 192; 194; 206; 207; 209; 220; 258 Aurelia Appiana Diodora ‘Posidonia’, 256 Aurelia Orestilla, 151; 171 Aurelius Appianus, 255; 256; 257; 272 Aurelius Areios, 257 Aurelius Dionysios, 257 Aurelius Statianus, 257 Autronius Paetus, P. (cos. des. 65), 124; 155 Avianius Evander, C., 49; 299 Avianius Flaccus, C., 293; 299; 302; 311 Avianius Hammonius, C., 259; 293 Avianius Philoxenus, C., 291; 295 Axius, Q. (q. before 73), 121; 126; 127; 155; 168; 174; 297 Babullius, 193; 217 Barrus, T., 190 Bithynicus, 198 Bolanus, M., 292; 299 Brinnius, 193; 273 C. Herennius, 54 Caecilius Dio, Q. from Halaesa, 160

Caecilius Metellus Creticus, Q. (cos. 69), 160 Caecilius Metellus Nepos, Q. (cos. 57), 188 Caecilius Metellus Pius Scipio Nasica, Q. (cos. 52) (= Cornelius Scipio Nasica, P.), 152 Caecilius Philogenes, Q. ( ? or Pomponius Philogenes, T. ?) (freedman of Atticus), 134; 136; 139; 254; 293 Caecilius, Q., 126; 127; 155; 164; 165; 188; 189; 190 Caecina, A., 52; 193; 293 Caelius Rufus, M. (pr. 48), 82; 89; 90; 98; 103; 123; 152; 153; 259; 294; 297; 299; 308; 311 Caerellia, 214; 267; 273; 292; 294; 295; 297; 298; 299; 301 Caesennia, 193; 194; 216; 251; 266 Caesius, P., 300 Calliodorus, 81 Calpurnia (Fabati f.), 245 Calpurnius Fabatus, L., 245; 246; 272 Calpurnius Piso Caesoninus, L., 106; 173 Calpurnius Piso, C. (cos. 67), 187 Calva, 191 Calvina (adfinis of Pliny the Younger), 72; 81; 89; 100 Caninius Rebilus, C. (cos. 37 CE), 168 Carrinas, C. (cos. 43), 188 Cassius Dio Cocceianus, 206; 207 Cassius Longinus, C. (pr. 44), 147; 192 Castricius, 268 Castronius Paetus, L., 295 Cincius, 91; 266 Claudius (emperor), 76; 110; 192; 201; 209; 210 Claudius Marcellus, M. (cos. 51), 52; 123; 144; 145

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Claudius Marcellus, M. (pr. a. inc.), 202; 205; 210 Claudius Narcissus Aug. l., Ti., 209 Claudius Nero, Ti. (pr. 42), 306; 320 Claudius Pulcher, App. (cos. 54), 82; 88; 130; 191; 194; 306; 309; 329 Claudius, Ser. (grammarian), 82; 91; 295; 302; 316 Cloatius, M., 131; 169 Cloatius, Num., 131; 169 Clodia Tertia ‘Quadrantaria’ (Catullus’s Lesbia), 98; 123; 191 Clodius Apollonius, A. from Drepana, 210 Clodius Archagetus, M., 295 Clodius Hermogenes, 168 Clodius Philo, C., 295 Clodius Pulcher, P. (aed. 56), 74; 84; 91; 144; 151; 156; 161; 168; 191; 204; 215; 315 Cluentius Habitus, A. (the Younger), 160; 186; 187; 189; 192; 211 Cluvius, (Num. ?) from Puteoli, 129; 164; 165; 166; 181; 192; 193; 207; 211; 214; 215; 268; 270; 273; 296; 305; 307; 316; 317; 342 Cocceius, 303 Considius Gallus, Q., 193 Considius, Q. (sen. 74), 126; 155; 167; 169; 172; 173 Coponius, M., 194 Cornelius Balbus, L. (cos. 40), 81; 93; 103; 158; 187; 217; 223; 244; 251; 258; 267; 268; 271; 274; 309 Cornelius Chrysogonus, L. (Sullae l.), 51; 245; 324 Cornelius Fronto, M., 42; 104; 289; 325 Cornelius Lentulus Crus, L. (cos. 49), 152; 244

Cornelius Lentulus Dolabella, P. (= Cornelius Dolabella, P.) (cos. 44)., 137; 148; 153; 193; 268; 269; 297; 308; 324 Cornelius Lentulus Spinther, P. (cos. 57), 127; 155; 161; 190; 259; 266; 310 Cornelius Lentulus, Cn. ‘Augur’ (cos. 14), 209 Cornelius Nepos, 121; 169; 171; 173; 189; 208; 213; 232; 237; 313 Cornelius Scipio Africanus, P. (the Elder) (cens. 199), 58; 85 Cornelius Scipio Nasica Corculum (cens. 159), P., 88 Cornelius Sulla Felix, L. (dictator) (= Sulla), 83; 141; 142; 159; 192; 200; 205; 206; 221; 310 Cornelius Sulla, Faustus (q. 54), 151; 152; 156 Cornelius Sulla, P. (cos. des. 65), 91; 123; 154; 155; 165; 167; 211; 245; 259; 260; 267 Cornelius Tacitus, P. (cos. 97 CE), 52; 77; 96; 112; 114; 175; 198; 212; 217; 248; 333 Cornelius, C. (tr. pl. 67), 159 Cornelius, P. (debtor of Strabo), 297; 305 Cornificius, Q. (pr. 45 ?), 144; 147; 173; 269; 293; 296; 301; 304; 315 Coruncanius, Ti. (pont. max. 254), 184 Cossinius Anchialus, L., 291; 294; 298 Cossinius, L., 192; 207; 294; 298; 317 Cossutianus Capito, 217 Crispus (heir of Scapula), 193 Culleolus, L. (pr. 62 or 61 ?), 304; 321 Cupiennius, C., 310

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Curius M’ (heir in the causa curiana), 194; 206 Curius, M’ (negotiator in Patrae), 51; 52; 140; 162; 215; 216; 300; 317 Curtius Mithres Post. l., C., 65; 121; 143; 250; 291; 294; 295; 298; 299 Curtius Nicias from Cos, 297; 308 Curtius Peducaeanus, M. (pr. 50), 305 Curtius, C., 171 Cuspius, P., 319 Custidius, L., 305; 306 Damasippus ‘Mercurialis’ (see also Licinius Crassus Iunianus Damasippus, P.), 164; 165 Dasumius Tuscus, P. (cos. suff. 103 CE), 195 Deiotarus, tetrarch and king of Galatia 63 - ca. 40., 102 Demoniacus, 273 Dinaea, 192; 201 Diodotus (philosopher), 106; 207 Dionysius (negotia in Africa), 273; 293 Dionysius of Halicarnassus, 56; 57; 60; 74; 84; 87 Domitian (emperor), 73; 95; 109 Domitius Ahenobarbus, L. (cos. 54), 244; 272 Domitius Tullus, Cn. (cos. suff. II 98 CE), 195; 197; 198; 213 Egnatius Celer, P., 52 Egnatius Rufus, L., 129; 135; 146; 164; 168; 181; 249; 259; 267; 273; 294; 317; 320 Egnatius, Cn., 185 Ennius, Q., 37 Eros (Ciceronis ser.), 139; 157; 260; 268; 274 Erucius, C., 91 Eutrapelus, 80 Faberius, Q., 137; 271; 309

Fabius Gallus, M., 266; 281; 298; 303; 305; 306; 308; 316 Fabius Maximus Aemilianus, Q. (cos. 145), 187 Fabius Persicus, Paullus (cos. 34 CE), 168 Fabius Quintilianus, M., 90; 211; 248; 272 Fabullus, 81 Fadius Gallus, Q., 221 Fadius, T. (tr. pl. 58), 145 Fannius Chaerea, C., 281; 283 Fannius, C., 218 Felix, 191; 218 Feridius, M., 299; 311 Flaminius Flamma, L., 86; 87; 144; 297 Flavius, C., 178; 296; 304 Flavius, L (procurator on Sicily), 258 Flavius, L. (pr. 58), 273; 301; 308 Flavius, Q. (killer of Panurgus), 283 Florus, 192 Fonteius, M. (pr. 75 ?), 154 Fufidius, Q., 208; 214; 273 Fufius, C., 147; 158; 281 Fufius, M., 147; 158; 281 Fulcinius, M., 193; 194; 216; 266 Fulvia, 122; 159 Fundanius, C., 301; 309 Funisulanus, 174; 178; 297; 303 Furius Camillus, M., 58 Furius Camillus, M. (Dict. 396, 389, 368, 367), 85 Gabinius, A. (cos. 58), 138; 152; 160 Gaius (the jurist), 183; 231 Galla, 81 Gallius Axianus, M., 121 Gallius, Q. (pr. 43), 249; 294 Gallonius, C., 244; 272

355

356

Gaurus, 89; 112 Gavius, L., 94; 244; 259; 270; 313 Gellius Poblicola, Cn. (or Q. ?), 204 Genucilius Curvus, L., 292; 295; 298; 306 Heius of Lilybaeum, 202; 210 Heracleides, 257 Heraclides from Temnos, 106; 147; 148; 155; 158 Herennius, 173 Herennius, T., 137; 138 Hermippus from Temnos, 147 Herod the Great, king of Iudaea 37-4 BCE, 209 Heron, 257 Hesiodus (= Hesiod), 37; 241 Hippias Philoxeni f. from Caleacte, 298; 307 Horatius Flaccus, Q. (= Horace), 39; 80; 82; 97; 100; 103; 104; 105; 107; 112; 123; 143; 155; 164; 165; 172; 198; 265; 332 Hordeonius, 192; 193; 214 Hortensius Hortalus, Q. (cos. 69), 82; 91; 185; 192; 201; 217; 244; 324; 329 Isidorus from Sevilla, 227 Iulius Caesar, C. (cos. 59) (= Caesar), 58; 75; 82; 85; 86; 87; 93; 94; 101; 102; 109; 122; 124; 125; 128; 137; 139; 144; 145; 147; 148; 151; 152; 153; 155; 156; 157; 158; 161; 162; 167; 168; 171; 175; 192; 193; 194; 196; 205; 206; 214; 215; 217; 222; 223; 244; 250; 251; 258; 267; 270; 271; 274; 279; 288; 292; 293; 298; 301; 302; 309; 310 Iulius Calidus, L., 298 Iulius Graecinus (pr. a. inc.), 168 Iulius, L., 319 Iunia, 192

Iunius Brutus, D. (cos. 77), 144; 154 Iunius Iuvenalis, D. (= Juvenal), 72; 85; 96; 97; 99; 106; 107; 108; 110; 111; 112; 197; 248; 333 Iunius Moderatus Columella, L., 63; 258; 272 Iunius, M., 202; 205 Iunius, P. (filius), 202; 210; 312 Iunius, P. (pater), 144; 205; 280 Iustinianus (emperor), 75; 231; 236; 262 L. Ligus, 172 Labienus, T. (pr. 59 ?), 94 Laenius, M., 297; 300; 313 Liburnia, 186; 211 Licinius Archias, A. ‘Poeta’ from Antiochia (= Archias), 218 Licinius Crassus Iunianus Damasippus, P. (tr. pl. 53), 164 Licinius Crassus, L. ‘Orator’ (cos. 95), 194 Licinius Crassus, M. (triumvir), 74; 91; 124; 125; 144; 145; 151; 153; 161; 164; 167; 200; 217; 281; 288; 300 Licinius Lucullus (Ponthicus), L. (cos. 74), 82; 88; 93; 153; 165; 188; 189; 190; 194; 195; 204; 213; 214 Licinius Lucullus, M. (filius Luculli Pontici), 153; 204 Licinius Nepos (pr. 105 CE), 77 Livia, 193 Livia Augusta, 194; 306 Livius Drusus Claudianus, M. (pr. 50?), 315 Livius Drusus, M. (tr. pl. 91), 96 Lucceius M. f., L., 296 Lucceius, L. (pr. before 62), 296; 304; 321 Lupus, 79

356

357

Lyso from Lilybaeum, 300 Lyso from Patrae, 293; 302 Maccius Plautus, T., 36; 54; 98; 112; 121 Maecenas, C., 82; 103 Maenius Gemellus, C., 302 Magius Chilo, P., 52; 123; 144; 145 Mallius Glaucia, 51 Mamurra, 93 Mancinus, 81 Manlius Sosis, L., 292; 301 Manlius Torquatus, A. (pr. 70), 244; 313 Manlius, C., 172 Manlius, Q. (triumvir capitalis 77), 160 Manlius, T., 300 Marcella, 82 Marcia, 192 Marcilius, M., 306; 320 Marcius Barea Soranus, Q. (cos. suff. 34), 52 Marcius Philippus, L. (cens. 86), 54; 61; 81; 103; 114; 123; 155 Marcius Philippus, Q. (pr. 48 ?), 249; 294 Marcius Rex, Q. (cos. 68), 172; 191 Marinos, 257 Marius Urbinas, T., 190 Marius, C. (cos VII 86), 54 Marius, C. (filius), 63; 81; 83; 99; 159 Marius, M., 266 Marius, T., 301 Masurius Sabinus (jurist), 58 Matinius, P., 144; 259; 269; 270; 294; 309 Matrinius, C., 258 Memmius, C. (pr. 58), 95; 299 Mescinius Rufus, L. (q. 5150), 94; 95; 232; 264; 272; 274; 301; 304; 305; 307; 308 Messienus, P., 300

Metilius Crispus, 81; 89 Mindius, M., 232; 263; 273; 274; 301; 304; 307 Minucius Basilus, L., 200; 217 Minucius from Tarentum, 139 Minucius Thermus, Q. (pr. 58, 53 ?), 250; 254; 291; 292; 293; 305; 306; 307; 320 Mithridates VI Eupator, King of Pontus 120-163, 195 Mucius Scaevola, Q. ‘Pontifex’ (cos. 95), 279 Munatius Plancus, L. (cos. 42)., 144; 292; 297; 310; 322 Mustela, 193 Mustius, C., 202 Naevia, 198 Naevius, Sex., 146; 158; 175; 244; 258; 280; 282; 283; 284; 285; 308; 324 Nemesianus, 257 Nero (emperor), 72; 209; 217 Nostius Zoilus L. l., L., 193; 218; 301 Nostius, L., 193; 214; 301 Novanius Gallio, P., 186 Numerius from Puteoli (= Cluvius from Puteoli ?), 268 Octavius Naso, L., 273; 301; 308 Octavius, C. (pr. 61), 250; 295 Ofilius, A., 164; 308 Ofonius Tigellinus, T., 217 Oppia, 232; 304; 307; 308 Oppii from Velia, 162; 297 Oppius Gallus, 192 Oppius M.f., L. from Philomelium, 249; 250; 259; 273; 294; 300; 320 Oppius, C. (procurator of Caesar), 244; 258 Otacilius Naso, Cn., 259; 273; 293

357

358

Otho, 193 Paconius Lepta, Q., 144; 148; 189; 193; 217; 301; 312 Panurgus (Fannii Chaereae ser.), 281; 283; 285 Papirius Paetus, L., 82; 91; 92; 100; 295; 302; 303; 316 Papirius, M., 191 Parthenius, 80 Patulcius, 268 Pausanias from Alabanda, 320 Perperna Veiento, M. (pr. 82 ?), 193 Persius Flaccus, A., 97; 106 Petronius, 63 Philargyrus, 268 Philocles from Alabanda, 305 Philodemus from Gadara, 106 Pilia (wife of Atticus), 253; 294 Pinarius, T., 273; 293 Pinnius, T., 164; 165; 194; 204; 205; 206; 210; 218; 294; 296 Pinnius, T. (filius), 194; 203; 204; 205; 218; 304 Plaetorius Cestianus, M. (pr. 64 ?), 154 Plancius, Cn. (aed. 54), 171; 177 Plato, 42; 45; 64 Plinius Caecilius Secundus, C. (cos. suff. 100) (= Pliny the Younger), 39; 44; 63; 71; 72; 73; 74; 81; 82; 87; 89; 92; 96; 100; 103; 106; 109; 121; 178; 197; 208; 209; 218; 245; 246; 258; 272; 289; 332; 333 Plinius Secundus, C. (= Pliny the Elder), 73; 198 Plutarchus (= Plutarch), 54; 57; 81; 85; 86; 87; 98; 143; 154; 171; 207 Pompeius Magnus, Cn. (cos. III 52) = Pompey, 73; 81; 84; 86;

93; 94; 103; 106; 122; 123; 124; 125; 128; 129; 135; 139; 148; 152; 153; 156; 159; 161; 162; 187; 192; 193; 214; 215; 251; 270; 273; 288; 296; 299; 301; 304; 309; 310; 311; 313 Pompeius Reginus, T. (?), 188 Pompeius Theophanes, Cn. from Mitylene, 106; 188 Pompeius Vindulus, Cn. (Pompeii l.), 273 Pomponia (sister of Atticus), 168; 317 Pomponius Dionysius, M. (freedman of Atticus), 72; 106 Pomponius Porphyrio (= Porphyrio), 143 Popilius, M., 192 Porcius Cato, M. (filius Catonis Uticensis), 173; 204; 210 Porcius Cato, M. ‘maior’ ‘Censorinus’ (cens. 184) (= Cato the Elder), 55; 56; 58; 59; 171; 282; 285; 311 Porcius Cato, M. ‘minor’ ‘Uticensis’ (pr. 54) (= Cato the Younger), 102; 123; 143; 153; 188; 204; 244 Porcius Quintio, M. (Catonis Censorini l.), 282 Posidonius, 257 Postumianus, 79 Postumius (nephew of Gellius Poblicola), 204 Postumius Albinus Iunianus Brutus (= Iunius Brutus, D.) (pr. 45 ?), 81; 153; 154; 194; 205 Precius, 273 Ptolemy (King of Cyprus 80-58), 84 Ptolemy XII Auletes (King of Egypt 80-51), 128; 161 Publicius Malleolus, C. (q. 80), 205 Publilia, 221 Pupius, Cn., 301

358

359

Quinctius (?) Scapula (died 45), 143; 193 Quinctius (?) Scapula, P. ( ?) (creditor of P. Quinctius), 158 Quinctius, C., 188; 280; 282; 283; 284; 285 Quinctius, P., 146; 158; 175; 188; 243; 244; 258; 280; 308; 324 Quintianus, 79 Quintilianus (friend of pliny the Younger), 81; 89; 100 Rabirius Postumus, C., 66; 80; 83; 87; 122; 128; 129; 131; 145; 159; 161; 164; 165; 166; 171; 181; 223; 250; 281; 294; 299 Rabonius, L., 202; 205; 280; 281; 312 Restitutus, 79; 80; 92; 100 Romatius Firmus, 72; 81; 89 Roscius Capito, T., 51; 52; 279 Roscius Gallus, Q. ‘Comoedus’, 281; 283; 285; 308 Roscius Magnus, T., 51; 52; 244; 279 Roscius, M., 281 Roscius, P., 281 Roscius, Sex. (filius) from Ameria, 280 Roscius, Sex. (pater) from Ameria, 51; 279 Rubellius, C., 193 Rubrius, L. from Casinum, 189; 199 Rufus (= Varius Rufus ?), 316 Rufus (familiaris Fabati filii), 245 Rupilius, P., 301 Sabellus, 79 Safinius, 160 Sallustius Crispus, C. (pr. 46) (= Sallust), 151; 172 Sallustius, Cn., 122; 140; 159; 268 Sallustius, P., 122; 140; 268 Sassia, 187; 216

Satrius, M., 200 Saturninus, Cn., 193 Saufeius, App., 188 Saufeius, L., 188; 298 Scaptius, M. (Cappadociae), 270; 313 Scaptius, M. (Ciliciae), 130; 144; 244; 269; 270; 294; 303; 309; 313; 314 Scribonius Curio, C. (cens. 61), 157 Scribonius Curio, C. (tr. pl. 50), 75; 81; 82; 87; 89; 90; 91; 103; 124; 145; 152; 157 Scribonius Libo, L. (cos. 34), 146; 152 Seius, M., 248; 252; 254; 272; 293 Selicius, Q., 126; 127; 155; 191 Sempronia, 154 Sempronius Gracchus, C. (tr. pl. 123-122), 51; 96 Sempronius Gracchus, Ti. (cos. II 163), 88 Septicia, 187 Sergius Catilina, L. (pr. 68), 91; 145; 151; 152; 154; 171 Sertorius, Q. (pr. 83), 193 Servilius Caepio Brutus, Q. = Iunius Brutus, M. (= Brutus) (pr. 44), 63; 81; 83; 94; 99; 130; 131; 144; 147; 148; 159; 178; 192; 236; 244; 259; 268; 269; 270; 294; 297; 303; 304; 305; 309; 313 Servilius Isauricus, P. (cos. 48), 292; 295 Servilius Postumus, L., 193 Servilius Strabo, P. (?), 295; 320 Sestius, P. (pr. 54 or 50), 152; 204 Sextilius Andro, 201 Sextilius Rufus, P., 221 Sextus, 79 Sicca, 267

359

360

Silius, P. (pr. 58 or 52 ?), 127; 297; 302; 304; 308 Sittius, P., 128; 129; 131; 163; 164; 165; 245; 259; 260; 267 Socrates, 45; 64 Statius, Sex., 106; 248; 313 Stloga, Sex. (= Peducaeus Stloga, Sex. ?), 155; 158 Suetonius Tranquillus, C., 190 Suettius, 193 Suilius Rufus, P. (cos. between 41–45 CE), 248 Sulpicii, C. (financiers from Puteoli), 29; 146; 164; 182 Sulpicius Galba, Ser. (pr. 54), 148 Sulpicius Olympus, C., 311 Sulpicius Rufus, Ser. (cos. 51), 142; 250; 292; 293; 298; 299; 302; 304; 307 Syros, 256 Tadia, 312; 314 Tadius, P., 314 Tadius, Q., 312; 314 Terentia, 83; 100; 121; 139; 154; 162; 192; 219; 297 Terentius, 187 Terentius Afer, P., 42; 53; 121 Terentius Philotimus (Terentiae l.), 259; 260; 269; 317 Terentius Priscus, 82 Terentius Varro Murena, A. = Licinius Murena, L. (aed. < 44), 319 Terentius Varro, M., 88; 252; 298 Tettius, 187 Theodosius II (emperor), 75 Tiberius (emperor), 170; 175; 209; 306 Titinius, Q., 172 Titius Rufus, C. (pr. 50), 305 Titius Strabo, L., 297; 305 Titius, L., 248; 299; 311

Titius, P., 202; 205 Trebatius Testa, C., 80; 93; 292; 308 Trebellius ‘Fides’, L. (tr. pl. 47), 146 Trebonius, A., 221; 259; 293; 300; 310; 320 Trebonius, P., 221 Tullia, 73; 79; 88; 148; 158; 176 Tullius Cicero, M. (filius), 73; 121; 139; 297 Tullius Cicero, Q. (filius), 87; 147; 148; 153; 154; 157 Tullius Cicero, Q. (pater) (pr. 62), 84; 93; 94; 100; 122; 140; 146; 154; 156; 157; 159; 166; 168; 214; 266; 268; 281; 301; 308; 309; 317 Tullius Montanus, L., 74; 86; 87; 100; 120; 144; 145; 157; 158; 168; 296; 297 Tullius Tiro, M. = Tiro (freedman of Cicero), 121; 140; 162; 274; 289; 317 Tullius, M. (owner of estate in Thurium), 272 Tullius, M. (scriba), 164; 166; 326 Turia (so-called), 200; 202 Turius Eros, Q., 304 Turius, Q., 193; 301; 304 Turpilia, 302; 308 Turselius, L., 189; 199 Valeria (filia liberti Flacci), 195; 201 Valeria Elpinike Philoxene, 257 Valerius Flaccus ‘Heptachordus’, L. (pr. 63), 195; 201; 217 Valerius Martialis, M. (= Martial), 39; 64; 65; 71; 72; 79; 80; 81; 82; 85; 89; 92; 95; 96; 97; 98; 99; 100; 101; 102; 103; 105; 106; 107; 108; 110; 111; 112; 114; 121; 125; 169; 178; 198; 248; 332; 333

360

361

Valerius Maximus, 169; 173; 187; 188; 189; 190; 192; 213; 214; 217 Valerius Messalla Niger, M. (cos. 61), 124; 155; 156 Valerius Messalla Rufus, M. (cos. 53), 152 Valerius Orca, Q. (pr. 57), 319 Valerius Titinianus, 257 Valerius Triarius, C., 204; 210 Valerius, P. (manceps), 144; 301; 312 Vennonius, C., 214; 273; 292; 295; 298; 299; 301; 311; 313 Vergilius, 193 Vergilius Maro, P. (= Vergil), 55; 56 Verres, C. (pr. 74), 82; 91; 135; 160; 202; 205; 221; 249; 265; 281; 297; 300; 306; 307; 309; 311; 312; 314; 328; 329 Vestorius, C., 129; 164; 165; 168; 181; 273 Vettienus, 137 Vettius Cyrus, the architect, 215; 216 Vettius Sabinus, T. (pr. 59), 195 Vidius, 297; 308 Volteius Mena, 51; 54; 61; 62; 81; 82; 103; 104; 113; 114; 123; 155 Volusius, P., 301 Xeno from Athens, 139 Xenphon, 64; 243 Achaea (province), 91; 167; 215; 250; 295; 299; 308; 321 Africa (province), 128; 137; 193; 196; 235; 259; 272; 273; 292; 293; 296; 298; 301; 304; 315; 319 Alabanda, 305; 306; 307; 320 Alexandria, 180; 256; 257 Ameria, 51; 52; 279; 280

Arpinum, 156; 166; 208; 214; 268 Arsinoe, 256; 257 Asia (province), 130; 133; 134; 139; 195; 211; 213; 214; 217; 250; 254; 268; 270; 273; 292; 293; 295; 297; 298; 299; 300; 301; 305; 306; 307; 308; 311; 320; 321 Atella, 160 Athens, 17; 29; 73; 121; 125; 134; 139; 149; 151; 169; 171; 314 Bargylia, 305 Bithynia, 95; 218; 294; 297; 301 Brundisium, 139; 140; 267 Buthrotum, 86; 101; 125; 250; 292; 298; 310; 322 Byllis, 296; 304 Campania, 103; 214; 245 Cappadocia, 269; 270; 294; 297; 303; 313 Caria, 297 Carinae, 82; 317 Carthago Nova, 281 Casinum, 189; 199 Catana, 301 Caunus, 305 Cibyra, 293 Cilicia (province), 72; 84; 94; 130; 133; 135; 162; 166; 215; 249; 259; 269; 270; 274; 293; 294; 299; 300; 301; 309; 310; 311; 312; 313; 314; 317; 320; 326; 329; 348 Colophon, 299 Cos, 308 Cumae, 253; 272; 294 Cymae, 155 Cyprus, 84; 130; 259; 269; 294 Delos, 136 Drepana, 210 Dyrrhachium, 178; 296; 304 Egypt, 129; 145; 161; 165; 255; 256; 257; 272 Elis, 301

361

362

Ephesus, 133; 134; 135; 136; 139; 175; 250; 309; 317 Epirus, 83; 84; 250; 298 Falisci, 79 Florence, 137 Formia, 122; 208; 266 Gadara, 106 Galatia, 102; 259; 294 Gallia Cisalpina, 297; 305 Gallia Transalpina (Galla Narbonnensis), 280 Gaul, 93; 94; 156; 251 Greece (see also Achaea), 49; 140; 159; 162; 177; 232; 241; 243; 264; 266; 273; 302; 342 Gytheion, 131; 169 Halaesa, 160 Hellespont, 298; 306 Heraclea, 305 Herculaneum, 281; 298 Hispania Ulterior, 151 Illyria, 299; 304 Lampsacus, 306 Laodicea, 135 Larinum, 201 Leptis Magna, 138 Lucania, 79 place=>Macedonia (province), 91; 140; 167; 250; 295; 310; 321 Mauretania, 128; 163 Messina, 328 Miletus, 85 Mitylene, 106; 188 Mylasa, 307 Naples, 301; 316 Narona, 299 Nicaea, 294; 296; 304 Numidia, 128 Patrae, 52; 140; 162; 214; 215; 293; 300; 302; 317 Pharsalus, 123; 310 Philomelium, 259; 273; 294; 300; 320 Picenum, 79 Pompeii, 23; 109; 164 Pontus (province), 95; 218; 297; 301

Puteoli, 129; 164; 165; 166; 182; 192; 207; 214; 268; 270; 296; 305 Rhodus, 180 Rome, 53; 81; 83; 103; 105; 106; 108; 109; 110; 122; 123; 128; 130; 131; 135; 139; 140; 147; 151; 160; 161; 162; 170; 175; 201; 244; 267; 282; 305; 307; 317; 321; 328; 329 Salamis on Cyprus, 130; 131; 144; 269; 294; 297; 303; 314 Sardinia, 94; 156; 329 Sicilia, 90; 135; 160; 202; 249; 258; 259; 265; 273; 289; 292; 293; 299; 301; 307; 311; 314 Spain (see also Hispania Ulterior), 82; 93; 128; 272 Syracuse, 138; 328 Syria, 79; 138 Tenos, 131; 169 Thespiae, 300; 319 Thurium, 272 Tusculum, 122; 208; 266 Velia, 162; 297 Actio ad exemplum institoriae, 262; 263 Actio bonae fidei, 203; 229; 230; 278; 279 Actio communi dividundo, 28; 278; 279 Actio de peculio et de in rem verso, 25; 26; 27; 28; 285 Actio exercitoria, 25 Actio familiae erciscundae, 240; 276; 278 Actio famosa, 203 Actio institoria, 25; 285 Actio locati conducti, 25; 228; 285; 338; 341 Actio mandati, 25; 30; 134; 136; 143; 227; 228; 229; 230; 233; 236; 237; 238; 247; 251; 252; 270; 274; 345 Actio negotiorum gestorum, 227; 229; 230; 231; 233; 235; 236; 237

362

363

Actio operarum, 265 Actio pro socio, 277; 278; 279; 280; 285; 286; 345 Actio quod iussu, 25; 26; 27; 142 Actio tributoria, 25; 26; 27; 28 Actio tutelae, 203 Actiones adiecticiae qualitatis, 24; 25; 26; 27; 29; 261; 262; 338; 339 Actor, 243; 255; 264; 272; 343 Adfinitas, adfines, 58; 89; 121; 189; 280 Adoption, 183; 185; 186; 222; 223 Adpromissio, 141 Adsectatio, 62; 65; 97; 101; 107; 111; 112; 143 Aequitas, 323; 324 Aes circumforaneum, 155; 156 Agency, representation, 21; 24; 25; 65; 132; 162; 226; 227; 229; 237; 239; 242; 244; 253; 255; 257; 260; 261; 262; 263; 266; 270; 272; 275; 283; 305; 309; 313; 331; 338; 339; 345 Agnatio, agnati, 196; 201; 223; 242; 308 Alimenta (see also allowance), 109; 248 Allowances, 83; 94; 114; 135; 248; 333; 341 Altruism, 35; 36; 39; 42; 45 Amor, affection (in friendship), 11; 12; 35; 38; 41; 42; 43; 44; 45; 49; 50; 62; 64; 78; 79; 99; 100; 189; 197; 204; 245; 246; 266 Annona, 90; 94; 108; 311 Annuities (see also allowances), 109; 248 Appellatio debitoris, 36; 176; 267; 269

Applicatio, 52; 53 Aquaduct, 166 Arbiter, arbitrage, 304; 305; 308; 334 Argentarius, argentaria res, 116; 126; 133; 135; 136; 138; 150; 156; 181; 278 Asymmetry (in relations), 11; 39; 50; 51; 54; 61; 245; 282; 283 Auctions, 61; 113; 114; 123; 155; 156; 207; 266; 282 Avaritia, 66; 170; 171; 172; 173 Bankruptcy, 27; 151; 152; 171; 191; 284; 301; 312; 343 Banks, bankers (see also argentarii), 16; 17; 88; 119; 133; 135; 136; 137; 138; 162; 163; 267 Beggary, beggars, 95; 112; 113; 333 Beneficium, 36; 37; 38; 39; 40; 44; 45; 46; 47; 64; 65; 74; 76; 77; 81; 88; 90; 92; 93; 94; 95; 102; 104; 108; 119; 125; 126; 139; 143; 146; 156; 170; 173; 177; 190; 195; 210; 211; 212; 213; 238; 246; 247; 248; 251; 279; 291; 295; 302; 307; 308; 312; 315; 316; 317; 318; 319; 323; 331; 332; 334; 335; 336; 338; 339; 340; 347; 348 Beneficium competentiae, 278 Benevolentia, 35; 45; 62; 67; 99; 126; 143; 213 Benignitas, 35; 36; 37; 39; 41; 45; 46; 47; 62; 64; 66; 126; 143; 171; 246; 349 Bona Dea, 74; 144; 161 Bona fides, 203; 237 Bonitas, 66; 171; 191; 213; 290 Broker, brokerage, 31; 114; 147; 181; 287; 289; 290; 318; 319; 320; 321; 339; 340; 348 Capital and capital goods, 11; 20; 28; 103; 104; 106; 110;

363

364

126; 163; 179; 276; 282; 283; 286; 318; 341; 342; 345; 351 Capitalism, 17; 20; 21; 163 Capitis deminutio, 277 Captatio, 196; 197; 198; 199; 213; 336 Causa curiana, 194; 206 Census, 89; 103; 184; 311 Centumviri, 186 Cibaria, 94; 313; 314; 340 Cognatio, cognati, 58; 102; 206; 343 Cognitor, 25; 229; 283 Collegium, 113; 115; 205; 261; 278 Colonisation, settlement of veterans, 86; 250; 292; 298; 310; 322 Columna Maenia, 176 Commeatus, 315 Commodatum, 20; 238 Competition, 95; 326 Condicio nominis ferendi, 222 Conflict, 23; 128; 303; 304; 305; 309; 322; 326; 329; 340 Constitutio Constantini de donationibus, 75 Consortium familiare, 275 Conspicuous consumption, 154 Constitutum debiti alieni, 142; 145 Consumer credit, 116 Corporate capacity, 22; 24; 26; 28; 29; 30; 226; 261; 262; 275; 277; 278; 281; 284; 285; 286; 345; 348 Corporate groups, 22; 30 Credit, loans (see also debt), 13; 15; 17; 31; 38; 39; 47; 65; 66; 70; 72; 74; 80; 86; 87; 91; 101; 116; 118; 119; 120; 121; 123; 124; 126; 127; 130; 131; 140; 144; 146; 147; 148; 149; 150; 151; 153; 154; 155; 156; 157; 158; 159; 161;

162; 163; 165; 166; 167; 168; 170; 171; 172; 173; 175; 176; 177; 178; 179; 180; 181; 208; 211; 213; 214; 216; 252; 268; 270; 274; 285; 297; 316; 319; 331; 333; 334; 335; 336; 338; 342; 343; 349; 350 Crime, 113; 197; 200; 202; 204; 217; 312 Crisis, 83; 114; 156; 162; 167; 170; 172; 175; 332; 333; 342 Cum manu marriage, 200; 201; 228 Curator, 151; 230; 235; 261 Curator annonae, 94; 311 Debt, 15; 39; 58; 66; 74; 86; 87; 99; 106; 114; 117; 119; 120; 124; 125; 126; 128; 130; 131; 132; 134; 136; 137; 140; 141; 142; 144; 145; 146; 147; 148; 150; 151; 152; 153; 154; 155; 156; 157; 158; 159; 160; 164; 165; 168; 172; 173; 174; 175; 176; 177; 178; 179; 193; 214; 220; 233; 235; 250; 267; 268; 269; 270; 271; 296; 297; 298; 301; 303; 305; 308; 309; 314; 332; 334; 335; 339; 340; 342; 346 Debt remission (specific), 145; 153; 167; 169; 173; 176; 297; 322; 335 Decumani, decuma, 249 Deditio, 52; 53 Delegatio debitoris, 134; 135; 136; 137; 268; 271; 335 Density analysis, 347; 348 Depositum irregulare, 133; 135; 136 Dignitas (see also existimatio, reputation, status, prestige, honour), 35; 46; 47; 48; 87; 101; 156; 168; 176; 290; 315; 319; 325; 328 Disinheritance, 185; 186; 187; 200 Dispensator, 139; 157; 260; 268; 269; 274 Dolus, 55; 229

364

365

Domus Palatina of Cicero, 122; 124; 155; 156; 208 Domus Palatina of Valerius Messalla, 124 Donatio (in roman law, see also gift), 75; 78 Dowry, dos, 73; 87; 88; 89; 137; 148; 157; 158; 159; 168; 187; 221; 268; 317 Ecdicus, 307 Edictum de edendo, 136 Edictum perpetuum, 235 Edictum Rutilianum, 241; 242 Emancipatio, 185; 186; 241; 242 Euergetism, 71; 95; 101; 125; 169; 170; 219; 255 Exceptio, 75; 76; 77; 283; 345 Exercitor, 164 Existimatio, fama (see also reputation, status, prestige, honour, dignitas), 35; 46; 48; 62; 100; 140; 170; 175; 176; 178; 203; 210; 246; 278; 319; 328; 335; 340 Faenerator, faeneratores, faeneratio, 32; 119; 126; 127; 128; 130; 146; 150; 151; 152; 153; 155; 156; 157; 161; 165; 166; 167; 169; 171; 172; 173; 180; 214; 334 Familiaritas, familiaris, 49; 51; 123; 127; 146; 192; 197; 204; 244; 245; 266; 272; 280; 299; 312; 320; 347 Family, 15; 22; 23; 31; 32; 43; 52; 54; 55; 65; 71; 76; 83; 85; 93; 102; 109; 128; 138; 154; 183; 185; 187; 188; 192; 199; 201; 205; 206; 214; 217; 219; 223; 239; 240; 241; 243; 256; 261; 275; 278; 281; 282; 286; 287; 288; 289; 306; 314; 317; 336; 342; 346; 348; 350 Family firm, family enterprise, 22; 23; 31; 32; 286 Fideicommissum, 183; 200; 220; 221; 222

Fideiussio, 65; 141; 142 Fidepromissio, 65; 141 Fides, 20; 30; 35; 39; 40; 41; 45; 46; 47; 50; 51; 56; 59; 62; 64; 99; 114; 116; 119; 132; 140; 143; 169; 170; 174; 175; 176; 178; 179; 190; 203; 212; 213; 220; 221; 222; 229; 232; 237; 238; 245; 246; 248; 255; 279; 280; 290; 291; 312; 318; 323; 328; 335; 336; 338; 339; 342 Financiers (see also faenerator, faeneratores), 31; 66; 118; 126; 127; 128; 129; 130; 131; 138; 150; 163; 164; 170; 214; 302; 334; 335; 336; 340 Fine, 58; 74; 76; 83; 85; 86; 99; 101; 125; 184; 310; 332; 345 Firms, 15; 22; 23; 137; 262 Flagitatio, flagitare, 176; 269 Forgery of wills, 197; 200; 217; 337 Fraus, 55; 56 Generosity (see also liberalitas, largitio), 35; 47; 49; 63; 72; 74; 78; 79; 85; 88; 93; 100; 107; 154; 173; 178; 190; 213; 237; 332 Gens, gentiles, 59; 200; 201 Gift, Gift-exchange, 15; 17; 31; 35; 36; 37; 39; 40; 54; 62; 63; 64; 65; 70; 71; 72; 74; 75; 76; 77; 78; 79; 80; 81; 82; 83; 85; 87; 89; 90; 91; 92; 93; 94; 95; 96; 97; 99; 100; 101; 102; 103; 104; 105; 107; 111; 112; 113; 114; 118; 120; 122; 123; 124; 157; 158; 159; 160; 161; 167; 176; 177; 197; 198; 211; 213; 218; 226; 247; 248; 251; 252; 257; 331; 332; 333; 338; 341; 342; 345; 348 Giro, 132

365

366

Gold bullion and objects, 80; 83; 122; 195; 209; 278 Graph theory, 346 Gratia, 35; 36; 37; 38; 39; 40; 41; 42; 44; 45; 46; 47; 48; 50; 62; 64; 65; 77; 92; 95; 96; 99; 100; 101; 119; 125; 126; 143; 167; 168; 169; 170; 177; 178; 179; 190; 212; 216; 218; 246; 247; 250; 252; 275; 279; 287; 290; 291; 300; 302; 303; 308; 309; 311; 312; 315; 316; 318; 319; 320; 321; 322; 323; 324; 325; 327; 328; 329; 332; 335; 336; 339; 340; 341; 343; 344; 349 Gratuitous contracts, 20; 21; 238; 247; 249; 265; 331 Honestas, 37; 47; 104; 107; 212; 213; 237; 248; 251; 265; 279; 325; 328 Honestiores, 325 Honestum otium, 104; 107 Honor, honorarium, 228; 247; 248 Honour (see also reputation, status, prestige, dignitas, existimatio), 35; 38; 46; 47; 48; 57; 58; 61; 62; 63; 78; 93; 96; 100; 112; 131; 151; 168; 176; 177; 183; 189; 190; 194; 195; 203; 206; 210; 219; 237; 255; 260; 261; 319; 335; 336; 337 Hospitium, 51; 58; 60; 65; 106; 162; 166; 215; 257; 302; 317 Household, 23; 29; 240; 256 Humiliores, 248; 325 Ianus medius, 128; 155; 164; 165 Illiberalitas, 46; 162; 303 Imperium, 304; 307; 328 In solidum (liability), 25; 26; 27; 28; 264; 277; 282; 283; 345 Income (see also profit, honorarium, salarium , merces), 11; 90; 91; 97; 104; 105; 108; 109; 110; 111; 113; 114; 118; 162; 208; 209; 241; 333; 337; 341; 342

Income (see also profit, honorarium, salarium, merces), 109; 110; 117; 249; 251; 252 Indirect representation, 227; 260; 261; 262; 263; 270; 275; 282; 345 Infidelitas, 46; 170 Influence (see also gratia), 9; 19; 46; 65; 66; 124; 167; 168; 178; 192; 203; 212; 215; 220; 226; 247; 250; 257; 287; 288; 290; 291; 292; 297; 300; 301; 303; 305; 306; 308; 311; 316; 318; 319; 320; 321; 322; 323; 324; 327; 329; 331; 337; 339; 340; 341; 343 Ingratia, ingratitude, 44; 46; 63; 102; 169; 170; 178; 197; 213 Institor (see also Actio institoria), 25; 29; 230; 264; 285; 338; 343 Instrumentalism (in friendship), 11; 12; 18; 19; 20; 21; 31; 41; 43; 44; 45; 71; 79; 166; 174; 246; 249; 253; 281; 282; 287; 291; 293; 318; 350; 351 Insurance (see also risk), 85; 114; 149; 179 Interdictum unde vi, 234; 244 Interest, faenus, usura, 116; 119; 120; 121; 123; 124; 125; 126; 127; 128; 129; 130; 131; 132; 133; 139; 149; 150; 152; 153; 155; 156; 157; 158; 159; 160; 161; 162; 163; 165; 166; 167; 168; 170; 171; 172; 173; 176; 177; 178; 179; 211; 214; 251; 252; 268; 269; 270; 281; 303; 305; 316; 333; 334; 335; 336 Intermediary (financial), 31; 119; 128; 129; 130; 147; 164; 165; 166; 180; 181; 182; 214; 300; 302; 316; 334 Intestacy, 53; 183; 185; 200; 201; 203; 220; 222; 242; 336 Ius civile, 185; 324 Ius consuetudinis, 278

366

367

Iusiurandum liberti, 53; 265 Iussum (see also Actio quod iussu), 25; 264 Iustitia, 35; 40; 119; 279; 323; 324; 325; 327; 328; 329 Kinship, kin, 42; 58; 61; 77; 78; 82; 167; 184; 188; 206; 218; 241; 253; 280; 336 Labour, 23; 104; 110; 228; 247; 255; 276; 281; 283; 341 Largitio (see also generosity), 63; 73; 97; 104 Laudatio, 326 Legatio libera, 314; 315 Legatio, legatus, legate, 93; 94; 156; 249; 294; 297; 299; 310; 311; 312; 314; 315; 340 Legatum, legacy, legatee, 15; 31; 92; 99; 183; 184; 185; 188; 191; 192; 193; 195; 196; 197; 199; 200; 201; 206; 207; 208; 209; 210; 211; 212; 213; 214; 216; 217; 218; 219; 220; 221; 251; 252; 269; 334; 336; 337; 338; 341; 349; 350 Leges regiae, 56 Lex Apuleia de adpromissoribus, 141 Lex Atilia de tutoribus dandis, 55; 201 Lex Ciceria de adpromissoribus, 141 Lex Cincia de donis et muneribus, 27; 75; 76; 77; 78; 90; 91; 111; 167; 242; 248; 345 Lex Cornelia de adpromissoribus, 141; 142 Lex Cornelia de edictis, 327; 328 Lex curiata, 222; 223 Lex de ambitu, 54; 55 Lex de repetundis of the tabula Bembina, 52; 54; 55 Lex Duodecim Tabularum, 174; 184; 240; 242; 275 Lex Furia de sponsu, 141

Lex Furia testamentaria, 184 Lex Gabinia de versuris, 130; 160 Lex Genucia de usuris, 120 Lex Hostilia, 234 Lex imperfecta, 76; 77; 345 lex Iulia de modo credendi possidendique intra Italiam, 175 Lex Iulia de repetundis, 77; 313; 314; 315 Lex Iulia municipalis, 146 Lex minus quam perfecta, 184 Lex Poetelia Papiria de nexis, 86; 120 Lex Publicia de cereis, 75; 78; 111 Lex Publilia de adpromissoribus, 141 Lex Thoria (?) agraria of the tabula Bembina, 235; 272 Lex Voconia, 183; 186; 200; 220; 221; 311 Liability, 22; 24; 25; 26; 27; 28; 30; 77; 119; 141; 142; 147; 193; 229; 237; 260; 262; 263; 264; 277; 279; 282; 283; 284; 285; 338; 345; 346 Liberalitas, liberalis (see also generosity, largitio), 35; 36; 37; 39; 42; 45; 46; 47; 59; 62; 63; 66; 74; 78; 84; 86; 87; 88; 93; 94; 99; 100; 121; 143; 151; 166; 168; 169; 170; 171; 172; 173; 174; 177; 179; 183; 190; 195; 213; 219; 237; 248; 290; 310; 332; 335; 345 Liberti, freedmen, 11; 21; 24; 49; 51; 52; 53; 55; 59; 60; 72; 76; 106; 109; 112; 113; 114; 129; 147; 162; 189; 193; 194; 196; 201; 209; 211; 221; 227; 234; 239; 241; 242; 243; 245; 250; 253; 254; 255; 256; 258; 259; 260; 265; 266; 269; 273; 274; 281; 282; 285; 291; 293;

367

368

299; 301; 304; 305; 311; 317; 324; 326; 338 Lictor, 309; 315 Limited partnership, 28; 282; 286 Litigation, trials, courts, 21; 56; 57; 58; 61; 63; 76; 77; 78; 80; 82; 90; 91; 92; 93; 100; 119; 123; 160; 161; 173; 186; 200; 211; 212; 213; 229; 236; 243; 244; 248; 253; 269; 283; 287; 297; 303; 305; 306; 307; 308; 311; 320; 322; 324; 325; 327; 337; 340; 343; 344 Locatio conductio, 25 Locatio conductio, 228; 252; 285; 338; 341 Loyalty (see also fides), 11; 19; 20; 30; 40; 41; 43; 44; 45; 49; 51; 61; 83; 174; 203; 204; 215; 219; 222; 237; 239; 245; 246; 249; 289 Lupercal, 154 Magister navis, 25; 164; 264; 338; 343 Mancipatio, 76; 228; 267 Mandatum, 20; 24; 32; 65; 66; 142; 143; 147; 212; 227; 228; 229; 230; 231; 232; 233; 234; 235; 236; 237; 238; 243; 246; 247; 249; 251; 252; 253; 254; 255; 257; 263; 265; 266; 267; 268; 269; 270; 271; 274; 275; 276; 283; 331; 338; 339; 341; 343; 345 Mandatum pecuniae credendae, 65; 142; 147 Manipulation of officia amicitiae, 17; 39; 45; 102; 125; 196; 199; 329; 332; 336; 350 Manumissio, 52; 65; 114; 228; 239; 241 Manus, 227; 228 Market (system, economy), 15; 17; 18; 19; 22; 70; 117; 156; 161; 162; 163; 164; 176; 180; 181; 208; 226; 255; 265; 341; 349; 350; 351

Marriage, 52; 83; 87; 88; 158; 187; 188; 201; 204; 205; 216; 228; 280 Mediation, intervention (see also brokerage, intermediary (financial), 129; 147; 148; 250; 289; 297; 298; 300; 301; 303; 304; 306; 307; 309; 310; 321; 322; 327; 334; 336; 339; 342; 343; 346 Merx, merces, 42; 111; 247; 248; 251; 252 Modernisation, (economic) development, 18; 22; 24; 260; 285; 346 Modernism, 15; 17; 19; 149 Money supply, 116; 117; 175 Moral economy, embedded economy, 16; 17; 21; 181; 349 Mos maiorum, 35; 58; 59; 60; 171; 174; 203 Mutuum, interest-free loan, 20; 74; 116; 119; 120; 121; 123; 124; 125; 126; 133; 135; 136; 153; 155; 156; 157; 158; 159; 162; 166; 167; 168; 170; 171; 176; 177; 178; 179; 211; 317; 319; 334; 335; 336; 342; 349 Necessitudo, necessarius, 49; 78; 238; 244; 280; 292; 326; 347 Need (help/assistance in need, see also crisis), 80; 85; 87; 89; 91; 97; 99; 100; 113; 122; 125; 131; 159; 308; 335 Negotiatores, businessmen, merchants, 15; 16; 17; 24; 31; 32; 40; 51; 63; 66; 92; 111; 116; 118; 128; 138; 140; 146; 147; 155; 162; 163; 164; 165; 168; 171; 180; 181; 182; 192; 193; 203; 207; 214; 215; 227; 235; 250; 254; 259; 263; 273; 274; 276; 277; 282; 285; 286; 292; 294; 297; 298; 299;

368

369

300; 301; 302; 311; 313; 314; 319; 320; 322; 329; 337; 340; 342; 344 Negotiorum gestio, negotiorum gestor (see also Actio negotiorum gestorum), 30; 65; 66; 227; 229; 230; 231; 233; 235; 236; 237; 249; 264; 274; 338; 345 Networks (social, personal), 10; 16; 22; 23; 29; 30; 31; 32; 48; 137; 138; 140; 148; 179; 180; 181; 216; 217; 218; 219; 226; 247; 262; 263; 275; 286; 287; 288; 289; 293; 294; 303; 318; 319; 320; 321; 323; 335; 340; 342; 343; 344; 345; 346; 347; 348; 349; 350; 351 Nexum, 120 Nomen transcripticium, 134 Novatio, 134; 135; 137; 142; 146; 233 Nummularius, 150 Obsequium, 241; 242 Observantia, 51; 143 Officium, 16; 20; 37; 38; 40; 41; 42; 45; 47; 58; 65; 66; 87; 99; 100; 105; 116; 120; 121; 125; 126; 143; 145; 157; 158; 168; 189; 203; 205; 210; 211; 212; 219; 227; 238; 239; 243; 246; 248; 252; 253; 265; 319; 331; 338; 344; 348; 350 Operae libertorum, 241; 265; 276 Ostentatio, 169; 219 Pactum conventum, 278; 282; 283 Parasite, 63; 95 Parsimonia, 36 particularism, 289; 323; 324; 326 Parties (political), 9; 22; 288 Pater familias, 24; 25; 26; 28; 185; 240; 337 Patria potestas, 21; 24; 25; 26; 176; 186; 216; 239; 261; 262; 305

patronage in courts, 56; 57; 61; 76; 77; 78; 80; 82; 90; 91; 92; 93; 100; 111; 123; 211; 212; 213; 248; 253; 308; 324; 337 Patronage over communities, 43; 53; 202; 306 Patronage over freedmen, 49; 189; 201; 241; 242; 298; 299; 301; 311 Patronage, literary, cultural, 100; 106; 107 Paupertas, poverty, 16; 48; 49; 61; 73; 88; 96; 97; 103; 105; 107; 108; 109; 110; 111; 112; 113; 114; 115; 143; 170; 183; 212; 264; 281; 282; 326; 333; 341; 342 Peasants, 16; 17; 24; 103; 163; 243 Peculium (see also actio de peculio), 25; 26; 27; 28; 29; 264; 273; 285 Pecunia traiecticia, faenus nauticum (maritime credit), 149; 150; 180; 282 Permutatio, 132; 133; 134; 135; 136; 137; 138; 139; 140; 181; 334; 335 Pietas, 186; 190 Potentia, 324 Praefectus, praefectura, 93; 94; 95; 130; 144; 270; 297; 298; 309; 310; 312; 313; 314; 322; 340 Praes, 143; 144; 312 Praesidium, protection (see also support), 53; 56; 62; 93; 105; 107; 111; 114; 131; 179; 189; 210; 212; 234; 238; 240; 241; 243; 253; 264; 271; 279; 284; 292; 293; 298; 302; 322; 337; 343 Prestige (see also honour, dignitas, existimatio, reputation, status), 29; 46; 47; 48; 67; 100; 169; 177; 180; 203; 257; 288; 319; 321; 328; 335; 336 Primitivism, 15; 17; 19

369

370

Procuratio, procurator, 20; 24; 30; 32; 64; 66; 94; 133; 134; 136; 139; 147; 148; 176; 193; 194; 227; 229; 230; 231; 232; 233; 234; 235; 236; 237; 239; 240; 241; 243; 244; 245; 246; 247; 249; 250; 251; 252; 253; 254; 255; 256; 257; 258; 259; 260; 261; 262; 263; 264; 266; 267; 268; 269; 270; 271; 272; 273; 274; 275; 283; 285; 293; 294; 297; 299; 304; 305; 313; 321; 331; 338; 343; 345 Procuratio, procurator ad litem, 229; 231; 236; 239; 247; 263 Procuratio, procurator falsus, 236 Procuratio, procurator voluntarius, 236 Procuratior omnium rerum, 230; 231; 232; 234; 235; 254; 255; 271 Prodigality (see also largitio), 63; 97 Productive credit, 116; 148; 149; 150; 162; 163 Profit, 18; 19; 20; 25; 27; 30; 65; 66; 129; 131; 135; 139; 148; 165; 166; 167; 170; 249; 251; 257; 276; 277; 279; 283; 284; 286; 322; 332; 339; 343 Propaganda, 57; 60; 169; 170 Property, land, real estate, 15; 20; 24; 59; 72; 73; 76; 79; 81; 82; 83; 85; 86; 89; 101; 103; 104; 107; 110; 112; 113; 121; 123; 128; 138; 143; 144; 148; 154; 155; 156; 164; 165; 166; 175; 176; 183; 184; 185; 189; 192; 193; 201; 202; 208; 209; 210; 222; 232; 233; 234; 239; 240; 242; 243; 245; 249; 250; 251; 253; 255; 256; 257; 258; 260; 261; 264; 266; 267; 271; 272; 273; 278; 280; 281; 282; 283; 292; 294; 297; 298; 299; 300; 303; 306; 310; 317; 326; 332; 340; 341; 351

Propinquitas, propinquus, 29; 56; 188; 189; 193; 244; 280 Publicani, mancipes (see also decumani), 30; 66; 135; 144; 171; 172; 249; 261; 278; 281; 300; 301; 302; 312; 319 Quaestio perpetua de falsis, 200 Querela inofficiosi testamenti, 186; 188 Ransom, 58; 74; 84; 85 Ratihabitio, 263 Ratio, rationes, 136; 273; 293 Rationality, 18; 19; 20; 59 Reciprocity (see also gratia), 10; 11; 16; 17; 18; 19; 20; 36; 37; 38; 39; 40; 41; 43; 44; 45; 46; 47; 48; 50; 51; 54; 61; 64; 71; 79; 90; 92; 95; 96; 101; 102; 111; 113; 118; 119; 177; 180; 211; 212; 243; 246; 286; 287; 289; 316; 317; 318; 331; 332; 348; 349; 350; 351 Recommendations, commendationes (see also influence), 16; 32; 39; 43; 53; 65; 93; 114; 115; 130; 143; 162; 166; 169; 204; 205; 212; 214; 215; 218; 235; 249; 250; 252; 254; 259; 264; 289; 290; 291; 292; 293; 294; 295; 296; 297; 298; 299; 300; 301; 302; 303; 304; 305; 306; 307; 308; 309; 310; 311; 312; 313; 315; 316; 317; 318; 319; 320; 321; 322; 323; 324; 325; 326; 327; 328; 329; 334; 337; 339; 340; 343; 344; 347; 348 Recuperatores, 306 Reputation (see also honour, prestige, status, dignitas, existimatio), 12; 19; 30; 31; 35; 46; 48; 50; 118; 119; 129; 140; 159; 161; 169; 170; 171; 175; 176; 177; 178; 180; 181; 184; 203; 210; 217; 246; 278; 286; 303; 319; 320; 328; 329; 335; 339; 340

370

371

Risk, 99; 103; 113; 114; 128; 131; 137; 166; 221; 222; 233; 285; 334; 344; 345; 350 Sacra privata, 184 Sacratio, 56; 57; 58 Salarium, 95; 106; 246; 247; 248; 250; 251; 252; 254; 257; 258; 260; 338 Salutatio, 62; 63; 65; 95; 96; 97; 98; 101; 105; 107; 108; 112; 115; 143 Satisdatio, 236; 263; 264; 267; 269; 278; 283; 338 Satisdatio amplius non peti, 236; 263; 264; 269; 278; 283 Satisdatio iudicatum solvi, 263 Satisdatio ratum haberi, 263; 267 Saturnalia, 78; 79; 83; 92; 114; 247; 332 Scriba, 129; 164; 166; 268; 326 Senatus consultum Claudianum de patronis, 76; 77 Sigillaria, 78 Silver bullion and objects, 72; 79; 80; 87; 122; 207; 209; 267; 278; 281 Slavery, slave XE "Slavery, slave labour" labour, 345 Slavery, slave labour, 11; 21; 23; 24; 25; 26; 27; 28; 29; 30; 32; 58; 59; 60; 65; 76; 81; 109; 113; 144; 182; 239; 240; 241; 242; 244; 253; 254; 255; 256; 259; 261; 262; 264; 273; 274; 281; 283; 285; 293; 338; 339; 343; 345 Social control, 46; 48; 328 Societas argentaria, 278 Societas Bithynica, 295; 301; 309 Societas ercto non cito, 240; 275; 276 Societas leonina, 276

Societas omnium bonorum, 276 Societas Rutiliana, 241; 242 Societas unius negotii, 276 Societas unius rei, 276; 285 Societas universorum quae ex quaestu veniunt, 276 Societas vectigalium, 276; 278; 281; 284 Societas, socii, 24; 26; 28; 30; 32; 65; 66; 136; 141; 160; 237; 240; 241; 242; 249; 252; 261; 265; 275; 276; 277; 278; 279; 280; 281; 282; 283; 284; 285; 286; 295; 301; 309; 331; 339; 343; 345 Solidarity, 18; 19; 20; 40; 41; 78; 85; 113; 118; 156; 219; 226; 342; 348; 349 Solvency / insolvency, 40; 86; 87; 117; 118; 123; 144; 145; 146; 170; 174; 176; 179; 263; 335; 336; 346 Sponsio, sponsores, 65; 141; 143; 146; 148; 308; 324 Sportula, 16; 54; 95; 96; 97; 98; 99; 101; 107; 108; 111; 112; 333; 341 Status (see also reputation, prestige, honour, dignitas, existimatio), 46; 47; 72; 73; 87; 89; 90; 100; 101; 105; 107; 110; 112; 113; 119; 124; 149; 154; 163; 178; 219; 240; 241; 247; 253; 255; 256; 258; 259; 270; 272; 314; 325; 332; 340 Stipulatio, 25; 119; 120; 123; 124; 141; 142; 220; 261; 263 Subsistence, 108; 109 Substantive economy, 17; 18; 19 Surety, guarantor (see also praes, sponsio, fidepromissio, fideiussio, satisdatio, mandatum pecuniae credendae, Constitutum debiti alieni), 17; 65; 72; 74; 86;

371

372

116; 119; 121; 123; 140; 141; 142; 143; 144; 145; 146; 147; 148; 157; 170; 171; 173; 177; 179; 202; 235; 236; 252; 264; 269; 297; 301; 312; 334; 335; 338; 342; 345; 346; 349; 351 Suus heres, sui heredes, 185; 186; 275; 280 Symbolic gifts and beneficia, 78; 79; 83; 92; 97; 104; 105; 108; 111; 169; 184; 195; 212; 220; 221; 332; 336; 348; 349 Tabulae novae, 155 Testamentum comitiis calatis, 196 Traditio, 53; 76; 253; 254; 291; 292 Tribunus militum, 93; 94; 214; 313 Trust, trustworthiness, 11; 16; 18; 30; 31; 40; 41; 58; 78; 113; 117; 118; 119; 129; 137; 140; 144; 169; 177; 179; 180; 181; 219; 222; 237; 238; 245; 254; 255; 256; 259; 274; 286; 312; 318; 334; 342; 348; 349 Tutela data, 201 Tutela legitima, 196; 200; 201; 202; 222 Tutela testamentaria, 66; 201; 202; 205; 210; 218; 219; 337; 349 Tutela, tutor, guardianship, 55; 56; 66; 87; 136; 173; 183; 194; 196; 200; 201; 202; 203; 204; 205; 206; 209; 210; 218; 222; 235; 261; 281; 312; 337; 349 Tutor gerens, 202 Tutor honorarius, 202 universalism, 287; 289; 323; 325; 326; 344 Versura, 120; 157; 158; 177; 268; 270 Vicesima hereditatum, 206; 207 Vilicus, 232; 243; 245; 255; 264; 272

Villa, horti (see also property), 81; 82; 103; 122; 127; 143; 154; 155; 156; 166; 208; 245; 246; 251; 258; 266; 272 Violence, 48; 55; 56; 72; 172; 234; 326 Voconiana ratio, 220 Voluntas, 25; 290; 304

372