The Emperor of Law: The Emergence of Roman Imperial Adjudication 0198744455, 9780198744450

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OXFORD STUDIES IN ROMAN SOCIETY AND LAW General Editors PAUL DU PLESSIS THOMAS A. J. MCGINN

OXFORD STUDIES IN ROMAN SOCIETY AND LAW The aim of this monograph series is to create an interdisciplinary forum devoted to the interaction between legal history and ancient history, in the context of the study of Roman law. Focusing on the relationship of law to society, the volumes will cover the most significant periods of Roman law (up to the death of Justinian in 565) so as to provide a balanced view of growth, decline, and resurgence. Most importantly, the series will provoke general debate over the extent to which legal rules should be examined in light of the society which produced them in order to understand their purpose and efficacy.

The Emperor of Law The Emergence of Roman Imperial Adjudication

K A I U S TU O R I

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Kaius Tuori 2016 The moral rights of the author have been asserted First Edition published in 2016 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2016937253 ISBN 978–0–19–874445–0 Printed in Great Britain by Clays Ltd, St Ives plc

Matri optimae

Preface This book began with a curiosity concerning the contradictory accounts of imperial adjudication, where the same emperor might appear at one moment as a most diligent judge issuing refined legal opinions, and a raving, murderous lunatic at the next. Many people helped me along the way in this inquiry. As a research project, it started out as a side project during a post-doctoral period at New York University in 2007–8 (funded by the Hauser Research Scholar Program, the Kone Foundation, the Osk. Huttunen Foundation and the ASLA-Fulbright Graduate Grants Program). In Helsinki, parts of the project were presented at different ancient history, legal history, and classics workshops and colloquia. With funding from the Emil Aaltonen Foundation, a research project was set up on issues of public and private in the Roman house, where I was able to develop the book idea with Laura Nissin, Juhana Heikonen, Heta Björklund, and Samuli Simelius, using the project as a sounding-board, especially for my ideas of the emperor moving between the public/private dichotomy. I would like to thank Juhana Heikonen for producing the illustrations for this volume. The book project took centre-stage in 2011, as the Academy of Finland was selected me as an Academy Research Fellow. Funded in part by the Foundation’s Post-Doctoral Pool, I returned to NYU in 2012–13, where Michael Peachin was my gracious host at the Classics Department and Larissa Bonfante was kind enough to lend her office to me. At NYU, in addition to Mike and Larissa, I would like to thank Benjamin Straumann for our innumerable dinners and discussions, Bill Nelson and Dan Hulsebosch for welcoming me to the NYU Legal History Colloquium, and to the faculty and graduate students at the Classics Department for their warm welcome and friendship. Mike and Benjamin would read the manuscript in its different iterations and offer their constructive criticisms, for which I am thankful. Back in Helsinki, I was fortunate enough to spin off a part of the project as a European Research Council project (ERC project FoundLaw, n. 313100), enabling me to gather my own research group. Jacob Giltaij, Tommaso Beggio, and Ville Erkkilä have had the dubious

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benefit of reading the chapters and debating them in our meetings. I would like to thank them for their comments and criticism during the making of this book. As the work progressed, I pitched the book to OUP, where series editors Paul du Plessis and Tom McGinn worked tirelessly to improve the ideas and their execution. I remain very much in their debt for making this a better book. My editors Charlotte Loveridge and Georgina Leighton have borne the usual queries for extensions and more words with patience and professionalism. Parts of this study were presented at different conferences over the years (AAH, ASLH, SIHDA, to mention just a few), as well as smaller colloquia such as the NYU Legal History Colloquium or the Tvärminne Late Antiquity workshop. For all of these events, I am ever grateful to all those who took the time to read my work, listen to the presentations, and give their comments. Many others, like Detlef Liebs, gave valuable insights and advice along the way. The book has been immensely improved as a result. This book has three academic homes: Helsinki, New York, and Rome. In Helsinki, the numerous legal historians have been my primary reference group and commented on my work on many occasions. Janne Pölönen, my co-conspirator in the Finnish study of the history of Roman law, not only shared his wide knowledge but also read the manuscript in full. Joonas Sipilä gave freely from his extensive knowledge of Roman administration, Kai Juntunen from his studies on Dio. Professor Carlo Lo Zio gave his insights on the legal implications of concentrated sovereign power. In Rome, the Finnish Institute in Rome at the Villa Lante has been not only a place to stay but also an academic home. Much of the research literature came from three wonderful libraries, the École Française de Rome, the American Academy in Rome, and the Roman Law Library at La Sapienza. A note on translations and literature: I have used widely available editions and translations, on some occasions amending an existing text. Word limits have made it impossible to compile comprehensive lists of all literature, but I have attempted to include references to works that allow the reader to have an understanding of the literature. Help in the research and editing process was provided by Laura Nissin, Phil Katz, Ville Erkkilä, and Heta Björklund. Of those, Heta Björklund did the brunt of the work of editing the text and the notes to house style and preparing the bibliography and the list of cases.

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Thank you! Margot Stout Whiting ably corrected my English. Naturally, the responsibility for the views and errors in this book is entirely mine. This book is dedicated to my mother, who remains confident that I will eventually get a real job. Kaius Tuori Helsinki 15 January 2016

Contents List of Illustrations Introduction

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1. Caesar, Cicero, and the Models of Legal Autocracy

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2. Augustus as Judge and the Relegation of Ovid

68

3. Divine or Insane: Emperors as Judges from Tiberius to Trajan

126

4. Hadrian as the Ideal Judge

196

5. Caracalla, the Severans, and the Legal Interest of Emperors

241

6. Conclusions

292

Appendix: Known Instances of Imperial Adjudication from Caesar to Severus Alexander, and Their Sources Bibliography Index Index Locorum

299 417 458 466

List of Illustrations 1.1. Forum Romanum during the trial of Ligarius. Reconstruction by Juhana Heikonen.

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1.2. Domus publica. Hypothetical reconstruction by Juhana Heikonen.

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2.1. The so-called house of Augustus, the temple of Apollo and the area Apollonis. Hypothetical reconstruction by Juhana Heikonen.

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3.1. Forum Romanum during the reign of Claudius. Reconstruction by Juhana Heikonen.

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3.2. Relief (Plutei Traiani) of the seated emperor Trajan in the Forum. Line drawing from the original relief by Juhana Heikonen.

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3.3. The Domus Flavia in Palatium, showing the large reception halls (conventionally named Basilica and Aula Regia). Reconstruction by Juhana Heikonen.

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Introduction Sometimes, the importance of something becomes apparent only when access to it is prevented. The young emperor Severus Alexander (ruled 222–35) wrote to the Greek community in Bithynia, reproaching all who sought to limit the appeals to him by litigants unhappy with the decisions of local judges, saying that ‘it is permissible to make use of a better route to the same end and to reach me faster’. He particularly prohibited procurators and provincial governors from using violence and military force to obstruct the approach of petitioners to him, maintaining that ‘I care as much for the liberty of my subjects as I do for their goodwill and obedience’.1 This letter, addressed to a local council in Asia Minor, was not only so well known that it was included in the Digest by the jurist Paul, but copies of it were even found on papyri in Egypt.2 This demonstrates how vital the emperor considered the upholding, or the appearance of upholding, the connection between himself and faraway petitioners, and equally how important this connection was to the people. The Roman emperor was considered to be the final judge, the supreme court, and the guarantor of justice. The focus of this book is on the way in which the Roman emperor became a judge, emerging as a ‘supreme court’ for the Roman Empire through a process of persuasion and assertion, beginning from the Late Republic and ending with the Severan period. This was a momentous change, as John Crook wrote: ‘The emergence of the ruler as supreme judge and head of the legal order is the principal formal difference between the Republic and Empire.’3 Previous works 1 2 3

Dig. 49.1.25. MacMullen, Response to Crisis (1976), 81. POxy. 17.2104 = POxy. 43.3106. Crook, ‘Augustus’ (1996), 123.

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have approached the process either through laws or through behaviour, seeking to deduce fixed rules from patterns of behaviour. Formalistic scholarship, which viewed the issue as a legal matter, starting from nineteenth-century German Roman lawyers but extending to the present day, assumed that the emperor was formally authorized to act as judge by legislation or by administrative continuity from the Republican magistrates.4 Functionalistic scholars, on the other hand, looked at the actual behaviour of the emperors as judges and drew general conclusions out of individual cases. The functionalistic adage ‘man is what man does’ was turned into ‘the emperor is what the emperor does’.5 Both of these viewpoints offer a deceptively clear vision of what the emperor could do and did do, because what they give is an amalgamation of sources that are both contradictory and scarce.6 The methodology of analytical jurisprudence, which would take into consideration not only rules and behaviour, but also the impact of ideology and belief, has been neglected until recently.7 This study seeks to present an alternative approach to the problem of imperial jurisdiction through the analysis of narratives.8 The motto for this study could thus be that: ‘The emperor is what the emperor is believed to be.’ Through the examination of narratives, this study seeks to shift focus from an anachronistic understanding of legal change being formulated through rules that may then be examined as laws or behaviour reflecting law, towards the investigation of the changing historical tradition as a sign of the emergence of jurisdiction. By looking at both legal and historical sources, it is argued that the emergence of imperial jurisdiction may be best observed through the manner in which it was discussed instead of through laws or legal 4

On the contradiction between Mommsenian constitutionalism and its legal formalism against historical and political realism, see Peachin, Princeps (2005). For a fruitful combination of the two, see Capogrossi Colognesi, Law and Power (2014). 5 Millar, Emperor (1992 [1977]), 6. 6 This contradiction extends to opposing views of what the Roman Empire was like. Elizabeth Meyer has described the formalistic vision of ancient Rome as an orderly place, something resembling modern Zurich: see Meyer, Legitimacy and Law (2004), 3. 7 By ‘the approach of analytical jurisprudence’ here is meant sensitivity towards ideological and cultural features in law. For one idea of the implications, see Twining, ‘Have Concepts’ (2005). On the interplay between law, communication and culture, see Ando, Imperial Ideology (2000). 8 On the emerging field of law and narratives and its uses in pre-modern legal history, see Bartor, Law as Narrative (2010), 2–8. On the methodological foundation of this study, see further discussion in this Introduction.

Introduction

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practice. Narratives of jurisdiction that describe the emperor as either exercising jurisdiction or refraining from it, as a holder of power and responsibility created the perception or a shared conviction of a capability to adjudicate, in other words, jurisdiction.9 Examples of imperial adjudication that were repeated in these narratives reinforced the belief in the imperial authority and, thus, its legitimacy. Instead of trying to coalesce the contradictory historical sources into a historical narrative, this study seeks to utilize their depictions of imperial adjudication on two levels. First, it will examine the different contemporary narratives of emperors as judges by approaching them as a dialogue in which different actors are presenting their own views of imperial power.10 For example, three different narratives of Augustus as judge will be discussed. Ovid tells his story of his unexplained banishment by imperial fiat, an abuse of power, even if it was formally legitimate.11 The provincials who inscribed their stories of Augustus’ legal intervention reveal the emperor as supreme court and magistrate of the whole Empire.12 Augustus’ own narrative remains purposefully mute, sticking to the storyline of Republican continuity, where no extraordinary jurisdiction is mentioned. Second, the past is prone to change, since each account of the past also reflects contemporary concerns.13 What later authors like Suetonius and Dio relate of the first emperors reflects a fairly ahistorical view of the past: the Roman emperor was a creation of Augustus who did not change over time.14 They both assume that Augustus had the practices and powers of the emperor in their own time. This bias was strengthened by the constant reference to the past in official narratives. Because the past justified the future through exempla, the fact that later authors said something of Augustus’ actions was also significant in the contemporary setting. Thus, what was said of the emperors adjudicating, settling disputes, 9

On the importance of constitutional ambivalence and argumentation, see Lintott, Constitution (1999), 7. 10 The importance of narratives was already recognized in Harries, Law and Empire (1999), as well as in recent studies such as Sumi, Ceremony and Power (2005), Roller, Constructing Autocracy (2001), and Gradel, Emperor Worship (2002). 11 Ov. Tr. 2.121–40. 12 SEG IX 8; IG XII 3.174 = FIRA III 185; Chisholm and Ferguson, Rome (1981), 132, 134–5. 13 I have previously written on the flexibility of the past in legal history, for example, in Tuori, Ancient Roman Lawyers (2007). 14 Suet. Aug. 33.1; Cass. Dio 53.17.6–7; Bleicken, Senatsgericht und Kaisergericht (1962), 74–5.

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and acting as judges worked in two ways, both in the contemporary setting and within the historical dimension.15 The approach is thus focused on narratives of adjudication and jurisdiction. Instead of rigid notions of law and legal procedure, what it seeks to bring forward is the uniqueness of Roman constitutionalism as a discourse drawing together legalism, historical memory, and narratives.16 The questions that this study seeks to answer are: 1) How did imperial adjudication emerge? How was it reflected in the narratives of emperors and how did these narratives change over time? 2) What kind of judge was the Roman emperor? On what kinds of examples and models of rulers, judges, and arbitrators were these convictions founded and how were these narratives constitutive of the power of adjudication? 3) Why did the emperor become an adjudicator? What roles and needs did emperors, petitioners, and administrators emphasize and how did these develop? The process by which the emperor became the supreme judge and, by extension, the supreme legal authority, has not been adequately studied. In contrast, the development that led to the emperor becoming the head of the legal system at large is well documented. Imperial will, expressed through popular legislation, senatusconsulta, edict, letter, and rescript, replaced all other legislative forms. Through the rescript system, imperial justice was available to petitioners from all around the Empire.17 The imperial legal bureaucracy, such as the appointment of city and praetorian prefects by Augustus to govern and to administer justice on behalf of the emperor, as well as the later appointment of iuridici and imperial legati to administer law, speak of the way that the legal system was centred around the emperor.18 15 Even in Republican Rome, narratives had a crucial constitutive and constitutional significance as a source of ancestral custom. See Lintott, Constitution (1999), 26. 16 On the emerging debate over Roman constitutionalism, see Ando, ‘Republican Constitutionalism’ (2013). 17 Orestano, Potere normativo (1962); Marotta, Mandata principum (1991); Gallo, Potere normativo (1982); Nörr, ‘Reskriptenpraxis’ (1981); Arcaria, Referre (2000). 18 Dig. 1.11, 1.12.1, 1.2.2.33; Capogrossi Colognesi, Law and Power (2014), 252–71; Eck, ‘Government and Civil Administration’ (2000); Vitucci, Ricerche sulla praefectura urbi (1956); Rucinski, Praefectus Urbi (2009); Woiciech, Stadtpräfektur (2010).

Introduction

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In the provinces, governors working under the emperor would run the legal administration. Even in Rome, the introduction of the new cognitio process associated with imperial courts would yield justice unconstrained by formalities and economic burdens, its only focus being substantive truth.19 The centre of this system, the emperor as judge, has remained an enigma despite important attempts to decipher the way that the system was created and why.20 The main works are still Millar’s 1992 The Emperor in the Roman World 21 and Honoré’s 1994 Emperors and Lawyers,22 which focus on the activities of the emperors in general and the imperial rescript system, respectively. Other studies have sought to trace the process down to issues like legal procedure, administration, punishment, power, or constitutionality. Some, like Bleicken, traced the growth of imperial jurisdiction by linking it to the Senate’s jurisdiction. Others, like Kelly and Jones, see imperial jurisdiction emerging gradually from specific areas such as maiestas.23 In the current debate, there are essentially two schools of thought regarding the emperor as judge, of which Millar and Honoré are good examples. The first emphasizes the factual power of the emperor as a leader, while the second underlines the formal legal aspects of the emperor’s adjudicative and legislative activities. Millar writes how the emperor’s power to kill, confiscate, and relegate, with or without legal procedure, was an essential part of how he functioned. However, this did not in any way hinder the emperor’s active role as a judge adjudicating cases between citizens.24 Honoré 19

Dig. 48.19.13; Kaser and Hackl, Zivilprozessrecht (1996), 435–516. Two recent studies, Randazzo, Doppio grado (2011); Fanizza, L’amministrazione (1999), 11–60, illustrate the historical difficulties, both practical and conceptual, that any such attempt must face. 21 Millar, Emperor (1992 [1977]). 22 Honoré, Emperors and Lawyers (1994), similarly on lawyers, Bauman, Lawyers and Politics (1989). 23 Bleicken, Verfassungs- und Sozialgeschichte (1978); Bleicken, Senatsgericht und Kaisergericht (1962); Kelly, Princeps Iudex (1957); Jones, Criminal Courts (1972); Jones, ‘Imperial and Senatorial Jurisdiction’ (1954). Of recent studies, see also Spagnuolo Vigorita, Le nuove leggi (1992); Peachin, Iudex (1996); Milazzo, Ordinamenti giudiziari (1999); Corcoran, Empire of the Tetrarchs (2000); Wankerl, Appello (2009); Schilling, Poena extraordinaria (2010); Connolly, Lives behind the Laws (2010); Rizzi, Imperator cognoscens decrevit (2012); Masuelli, Giudice privato (2012); and most recently Ferrary and Scheid (eds.) Il princeps romano (2015). 24 Millar, Emperor (1992 [1977]), 6–7, 527–30: ‘the emperor’s role in relation to his subjects was essentially that of listening to requests, and of hearing disputes’ (p.6). 20

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criticized this view of the unfettered power of the emperor and pointed to the degree to which emperors, almost without exception, relied on lawyers while exercising their legal role as a judge or in answering petitions. According to Honoré, the role of the emperor as a court of appeal and the imperial rescripts as a legal aid show how emperors actively promoted the rule of law for the entire Roman Empire.25 However, both agree that adjudication was a central task of the emperor. Peachin similarly stresses that the emperor spent a considerable amount of time sitting as a judge, and that the perception of the emperor as the good judge, the final source of justice who corrected unjust laws and unfair decisions, was formed by the second century AD.26 Dillon demonstrates how imperial jurisdiction was an administrative tool to spread imperial influence, a way of gaining the loyalty of the people and for punishing corrupt officials.27 Studies on petitioning and appealing to the emperor have recently explored it as a bottom up procedure, emphasizing the agency of the petitioners and their strategies.28 In earlier, mainly German, studies regarding the office of the Roman emperor, rigid constitutional theories were presented to illustrate the way the emperor became a judge. This was often through the exposition of the powers of the Roman emperor, beginning with the assumption that there actually was an agreement on what the powers of the emperor were or that there was a fixed constitution.29 The main problem with the formalistic approach regarding the emperor’s jurisdiction is that the sources upon which it could be based are not there and the sources that are there offer no support for this view.30 The Hopkins, ‘Rules’ (1978), 180, already criticized him for overlooking the importance of questions of power, legitimacy, and authority. 25 Honoré, Emperors and Lawyers (1994), 12–16, 28, 33. 26 Peachin, Iudex (1996), 4, 13. See also Kelly, Princeps Iudex (1957); Connolly, Lives behind the Laws (2010). 27 Dillon, Justice of Constantine (2012). 28 On the process of petitioning, see Hauken, Petition and Response (1998) and especially on the situation in Egypt, where much material has been found, see Kelly, Petitions (2011); Bryen, Violence (2013); Anagnostou-Canas, Juge et sentence (1991). 29 von Bethmann-Hollweg, Der Civilprozeß (1866), 3. 88–103, 325–42; Mommsen, Staatsrecht (1871–88), 2.2. 958–988; Puchta, ‘Geschichte des Rechts’ (1875), 212–34; Kromayer, Rechtliche Begründung (1888); Siber, Führeramt (1940). See also ArangioRuiz, Augustus (1938). 30 This dilemma was raised in many earlier studies, such as McFayden, ‘Princeps’ Jurisdiction’ (1923); Volkmann, Rechtsprechung (1969 [1935]); Kelly, Princeps Iudex (1957); Bleicken, Senatsgericht und Kaisergericht (1962). The same enigma is

Introduction

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primary legacy of this discussion has been the theory that the constitutional legitimation of the normative powers of the emperors was a combination of the powers of the different offices held by the emperor, such as consul or tribune of the plebs.31 However, since adjudication was not part of those powers, it has remained a dilemma that the formalistic approach has not been able to solve. As the traditional avenues have been exhausted, the main advance that this book seeks to make is to show how different actors like the emperors, imperial officials, petitioners, and litigants utilized various narratives of adjudication to advance their causes, and while doing so reveal, but also influence, aspects of the understanding of what the emperor could and should do in law. These narratives worked both through references to the concrete situation, and to the numerous traditions on sovereign power and adjudication. Petitioners sought to show themselves as vulnerable but virtuous, to persuade the emperor to act in their interest, while emperors (and their sycophants) presented themselves as righteous rulers and good judges.32 Critics, naturally, invoked the rhetoric of unjust tyranny.33 Far from being a mere reflection of the imperial role, this dialogue and the actions of the emperors as part of it were integral in shaping and formulating imperial adjudication by creating custom, hopes, and expectations.34 What I argue is that imperial adjudication and, by extension, jurisdiction developed as a defining feature of the Principate and that imperial jurisdiction is representative of the Principate itself. While scholars favouring a formalistic viewpoint might claim that more emphasis should be placed on laws and official sources, that is unavoidable due to a fundamental rift in the understanding of history between the formalistic view and what will be attempted here. The formalistic, descriptive study of constitutional history that gives an account of the development of formal powers and jurisdiction, divided into civil and criminal matters, has been written a number of recognized in Lintott, ‘Crime and Punishment’ (2015), 318; Rüfner, ‘Imperial Cognitio Process’ (2016). 31 Orestano, Potere normativo (1962), 19–22; Magdelain, Auctoritas (1947); Jones, ‘Imperium’ (1951). 32 e.g. SEG XVII 759, l. 24–41; Hauken, Petition and Response (1998), 58–73. On the imperial style in drafting, see Wankerl, Appello (2009). 33 Cic. Lig. 11. 34 This is increasingly recognized in recent studies on early emperors, e.g. Osgood, Claudius (2011); Winterling, Caligula (2011).

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times.35 Formal legal matters, such as deriving the jurisdiction of the emperor from the jurisdictional sovereignty of the provincial governor, by extension from the proconsular imperium maius or that of the consul, are an important part of the story, as are the traditional jurisdictions of the paterfamilias, the magistrate’s and the plebeian tribune’s duty to provide auxilium, or the practice of assigning arbitrators. In this case, the focus is simply different. What this book seeks to offer is a fresh and unconventional approach that sheds new light on a classical question. Formalistic legal history concentrated on the legal sources and excluded sources that it considered legally irrelevant, such as narratives and ideology. What the new narrativist approach demonstrates is that both the formalistic and functionalistic methods lead to a distorted image of the Roman emperor’s legal role, focusing either on the rules or the behaviour. Moreover, it shows how complex the process of the development of imperial adjudication actually was and the different elements that influenced it. As will be argued, the existence of formal legal precedents such as the governor’s jurisdiction functioned in themselves as narratives that constituted to the development of the shared understanding. The time-frame of this book is the period between the Late Republic and the advent of the so-called crisis of the third century as the formative period of imperial jurisdiction. The starting-point is a speech by Cicero in 46 BC in front of the dictator Caesar acting as a judge. Through contemporary examples of cases and narratives by Roman authors on emperors as judges, the book follows developments until AD 235, to include the effects of the Constitutio Antoniniana of AD 212, which is believed to have granted Roman citizenship to most of the free inhabitants of the Empire, and the writings of Ulpian, the most influential Roman theorist of imperial power over law. Both in theory and in practice, by the end of the period and the beginning of the crisis of the third century, the emperor was seen as the law animate: the supreme judge of the Roman world, whose rulings created new law and amended the old. The story is equally one of tremendous growth, as is evident in the list of cases in the appendix. By the early third century, the emperor would by some estimates handle several cases per day, resulting in an annual tally of perhaps 35 Volkmann, Rechtsprechung (1969 [1935]) shows that even after the most exhaustive research, the formalistic view relies on a leap of faith.

Introduction

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over a thousand. If the idea of the emperor as a kind of a supreme court is correct, one may assume that there would be a process of gradual elimination where cases handled in the local courts would make their way on appeal to the governor or prefect and then to the emperor, while many cases, as we will see, were handled by the emperor in the first instance.36 There were many different aspects at work in the creation of imperial adjudication, including both a push and a pull. On the push side, emperors were driven by a need to extend their power and to control the administrative staff. For this purpose, accepting petitions and making binding rulings provided an effective tool. There was a need to respond to the expectations that some of his subjects might have, the need to answer their petitions to appear as a good ruler. There might even have been a need, especially in the legal administration, to use the imperial power to harmonize law. On the pull side, it will be argued that the petitions of subjects invited the emperors to extend their power, to correct injustices in their favour. All of these factors created a dialogue of power and justice, where the participants would each play a role. The emperor would present himself as a good king, the subjects as good and loyal citizens. This dialogue even extended to other actors, such as the Senate, which would present itself as powerful and the emperor as one of its members. Similarly, in the provinces and in Rome the roles played might be completely different. The argument of the book is developed through a close reading of Roman narratives of imperial adjudication. The aim is to analyse the various ways the emperor’s activities and capabilities were seen and commented on by both contemporary commentators, like Ovid, Seneca the Elder, and Pliny the Younger, and historical and biographical authors such as Tacitus, Suetonius, and Dio. While contemporaries offer a picture that is often myopic and biased, later authors tend to depict the emperor according to the understanding of their time, equipped with the capabilities and powers of the emperor then. Through a comparison between the contemporary and historical narratives, the few existing official and legal sources, and the epigraphic and other documentary sources, the book offers an account of 36 Using comparative material, Pölönen, ‘Quadragesima’ (2008), 102 estimates that just 1% of the total number of cases would end up being resolved by the emperor, either directly or via local courts, the governors, and prefects.

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the development of imperial adjudication. Equally important are the changes in the topography of power and law, where the concrete manifestations of the rise of imperial power were everywhere, from the poignant reminder of the physical power represented by the barracks of the praetorian cohorts in the city, where previously no military force was stationed, to the visual imagery of imperial building projects and statues that transformed the Forum and the centre of Rome.37 The relevance of the discrepancies between the narratives of adjudication is that the authority of the emperor as judge was constructed through the creation of tradition. Thus, it is important to consider how the transformation of this administrative tradition is reflected in the works of Roman authors. In the absence of a written, set constitution or clear rules governing the functioning of imperial jurisdiction or legislative capabilities, tradition as a cultural phenomenon indicated what the emperor might do on the basis of what emperors had done and what they were expected to do. Thus, authors such as Seneca, Pliny, Tacitus, Suetonius, Pomponius, and Dio describe not only what past emperors had done, but also how their position and power was understood in their own time. As the Roman state was built upon the foundation of examples and exemplary practices, writing about the past was not a matter of simple description; it also had a normative and constitutive effect.38 Therefore, tradition was the scene of a complex interplay in which the creation and invention of tradition coexisted. While the emperors created tradition by their actions and the historians by recording these actions, both also made conscious choices with a view to what they thought would be the content of tradition. By making at times historically questionable references to earlier practices, both engaged in the process of inventing tradition. The past, or the version of the past that one presented, was an argument for the future.39

Ewald and Norena, ‘Introduction’ (2010), 5. Peachin, ‘Exemplary Government’ (2007), see 76–7 for a selection of literature; Lowrie, ‘Vergil’ (2005), 947. On the constant constitutional change, see Lintott, Constitution (1999); Flower, Roman Republics (2010). 39 To paraphrase the old British constitutional rule, everything was possible unless it was done for the first time. I have discussed earlier the utilization of the concept of invented tradition, pioneered by Hobsbawn and Ranger, in Tuori, Ancient Roman Lawyers (2007). 37 38

Introduction

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The power of belief and ideology has been recognized in many recent studies on the Roman Empire.40 These forces were significant even in adjudication and law, where law was constitutive of empire. Imperial power rested on three foundations: the coercive power of the army, the authority of magistrates, and the symbolic power of imperial ideology.41 Despite the fact that the emperor was often viewed as omnipotent,42 the imperial administration was not, and the Empire could be said to have functioned to a large degree with a combination of persuasion and coercion.43 The functioning of the emperor as judge may be seen as a central component in the administrative and ideological foundation of the connection between the emperor and the people. The role of the emperor has partly been such an enigma to legal historians because it does not conform to modern expectations of the separation of powers into executive, legislative, and adjudicative branches. The fact that the emperor both adjudicated and made law, with legal interpretation inseparable from actual transformation through precedent, has made the legal aspect of the Principate a conceptual minefield. Confusingly enough, the emperor was simultaneously above the law, within the law, and the law itself.44 Thus, questions regarding sovereignty and executive privilege, as well as the issue of exceptions and exceptionality, are central to the understanding of emperors and law.45 One should not make the mistake of drawing a rigid division between the application of law and its creation; for all its virtues, ancient Rome did not subscribe to the modern division. How did emperors function as judges? Should the Roman emperor even be formally called a judge because he was hardly applying existing

40 Meyer, Legitimacy and Law (2004); Ando, Imperial Ideology (2000); Woolf, Becoming Roman (1998); Zanker, Power of Images (1990). 41 Wallace-Hadrill, ‘Emperor’ (1981). 42 Dig. 1.2.2.12; Plin. Pan. 65.1; Cass. Dio 53.28.2; SHA M. Ant. 10.2–3; Amm. Marc. 16.5.12. 43 Harries, Law and Empire (1999), 56–7. 44 Dig. 1.3.11, 1.3.31, 1.4.1. Of the roots of this idea, see Martens, One God (2003). 45 See e.g. Agamben, State of Exception (2005). Theoretical inquiries on sovereignty and dictatorship (and the theories of Caesarianism, Bonapartism, commissarial and sovereign dictatorship, etc.), while enlightening on the conceptual level, are problematic due to their complicated history as modern interpretations, based on early modern theoretical understanding of classical sources, often aiming to understand modern totalitarianism. See e.g. Schmitt, Diktatur (1964); Schmitt, Political Theology (1988).

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law to a case? In the latter part of the time-frame of this book the exercise of imperial jurisdiction took numerous forms, where the emperors exercised jurisdiction like magistrates, acted as judges in civil and criminal matters, both in the first instance and on appeal, received legal petitions from all around the empire, but also influenced legal issues and disputes in more informal ways by assisting in adjudication and dispute resolution. Even in written form, various petitions were answered through rescripts, subscripts, letters, and so forth by the emperor and his representatives. However, divining the role of the emperor in individual cases is purely descriptive, as these roles (for example, a magistrate, an adjudicator, or a judge) did not limit the options open to him.46 Instead of narrowly defining jurisdiction, this book approaches the issue through a broad perspective on adjudication, where the main interest is examining how the emperors influenced legal issues and disputes of various kinds. Because acting as judge was, especially later with imperial rescripts, inseparable from legislation, giving laws, or defining legal norms, the book will demonstrate how this process was closely tied in with the rise of imperial jurisdiction. Even if one wishes to find a solid foundation for the practice of imperial adjudication, many alternatives could be presented. In the provinces, imperial jurisdiction could simply be defined as a continuation of the governor’s jurisdiction, as the imperial imperium maius would logically entail this. In the Roman world, there was even a long-standing practice of arbitration, in which a vir bonus was assigned to settle a legal dispute.47 The true enigma of the imperial adjudication was that its foundation was almost without fail left unstated.

SOVEREIGN RULE AND ADJUDICATION The rise of imperial jurisdiction and adjudication also presents a theoretical issue: the idea of the ruler as the supreme judge. The theoretical frameworks that have attempted to tackle the issue often 46 In recent scholarship, the divisions made in works like Wilcken about rescripts, petitions, appellations, and decisions have been criticized as arbitrary. See Masuelli, Giudice privato (2012), on the difficulty of defining these roles. 47 Broggini, Iudex arbiterve (1957); Roebuck and de Loynes de Fumichon, Roman Arbitration (2004).

Introduction

13

begin with the nature of sovereign power and then develop the notion of justice and jurisdiction from the power itself. Theories of sovereignty and sovereign jurisdiction have traditionally been divided into classical kingship theories and theories of modern dictatorship. The first have focused on the functioning of pre-modern rulers, ranging from kings, pharaohs, tyrants, chiefs, and other rulers,48 whereas the latter have been more inclined to study autocracy as an exception to liberal democracy.49 For the study of Roman emperors and their jurisdiction both approaches are problematic, since the historical example of Rome is both almost unique and at the same time highly familiar to later discussants. That said, many of the themes from both the pre-modern and modern autocracies will be familiar to a student of Roman legal history, from the use of trials for controlling elite competition to the bringing of justice to the people as a way of forging the bond between the leader and the populace against the elites. Roman theories of sovereign rule were to a large degree products of their time. The idea of popular sovereignty was strongly behind the conceptualization of Roman dictatorship and imperial power. Both gained their power from the legislative power of the people. Other theories, such as the idea of an ideal monarch so prominent in Seneca, are traceable to Greek precedents. Furthermore, there was a strong undercurrent in the Roman discourse on sovereignty that similarly emphasized the ethical and moral qualities of the ruler as a civilizing power.50 In studies on autocratic rule and the law, three main schools of thought have emerged. The first may be described as the economic explanation, which sees the development of authoritarian rule as stemming from the control over resources and their allocation. In these models, the autocrat uses resources he has collected to reward supporters and to punish opponents.51 As in the case of the proscriptions

48 Recently, the issue was explored in Colliot-Thélène and Portier, Métamorphose du prince (2014). 49 Very few attempt to straddle both. Barrington Moore famously sought to trace the origins of modern democracy and autocracy from their prehistory, such as the role of pre-modern aristocracies. Moore, Origins (1966). 50 See references in Chs. 1 and 3. 51 Wintrobe, Dictatorship (2000); Svolik, Authoritarian Rule (2012). A famous and much-criticized example of the economic theory of totalitarianism is the stationary bandit model by Olson, ‘Dictatorship’ (1993), which argues that established leaders steal less and invest more.

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of the triumviral period or the maiestas trials of the early Principate, Roman history has ample examples where law and adjudication was an essential tool in the reallocation of vast resources to the supporters of the autocracy. The second theory may be seen as the theological approach, where the mythical and transcendental aspects of autocracy are essential. There, the sovereign ruler can first be seen as a symbol of unity and coherence and second as an object of popular faith and trust. In the first sense, law may be a tool to define and to protect the group by ostracizing outsiders and defending against perceived threats, while in the second, the ruler is the guarantor of a quasi-transcendental invisible order of society, the upholder of truth and justice.52 In the Roman example, the uses of imperial justice to exclude and to persecute the perceived ‘others’ are numerous, ranging from the proscriptions to the persecutions of Christians and other groups. The idea of the emperor as the head of a transcendental order is best seen in the way that justice was an essential part of the good king myth and a vital part of the emperor’s role as living law. The good and just ruler transcended the constraints of the law to bring ethical and moral justice to his subjects. The third theory may be construed as a social psychological interpretation. Interesting studies have explored the impact of group cohesion, identification, and the mechanisms of control and obedience, but also how dictators use mass media to promote allegiance.53 While there have been a number of historical studies utilizing social psychology, the issue remains whether it is useful or not to make deductions about the behaviour of historical figures based on theories on modern psychology. Thus, it is questionable whether one may draw conclusions about the impact of the terror that Roman emperors visited upon both the imperial court and the populace, or the imperial propaganda touting the virtues of the emperor and the emergence of the cult of emperors and the idea of emperors being law incarnate, tempting as it may be. 52 Much of the literature has been inspired by Schmitt and applies his theories to various historical examples, e.g. Salter, Carl Schmitt (2012); Tralau, Hobbes and Schmitt (2010). 53 Recent works include Moghaddam, Psychology of Dictatorship (2013), and Haslam, Reicher and Platow, Psychology of Leadership (2011). In the Roman situation, the psychological interpretation has been attempted in works like Baehr and Richter, Dictatorship in History (2004), and Eckstein, ‘Spectre of Caesarism’ (2004).

Introduction

15

Is there a way of using theories and models based on historical situations that differ wildly from the ancient Roman social, political, and cultural experience? Instead of drawing conclusions from modern parallels or making simplistic and superficial claims of equivalence, I would instead posit that the value of comparative material is in the way it enlarges our understanding of the mechanisms of power and law and opens up analytical potential. Therefore, when modern studies on totalitarianism speak of the personality cult of the leader and the accompanying massive public displays of loyalty, or the cognitive dissonance brought on by the combination of the quasireligious idealization of the leader and the fear of harsh repression, studying them enables us to recognize parallel mechanisms in Roman imperial rule, even though they are fundamentally different and operate in a distinctly dissimilar environment. Likewise, accounts of how the unity of the elite in the support of the ruler was of paramount importance in maintaining control in authoritarian regimes may help us understand the vicious punishments to which dissidents in the imperial court were subjected. Other things are perhaps self-evident, such as the privileges and rewards that authoritarian regimes tend to give to members of the security apparatus. A further issue comes from the identification and self-identification between ancient and modern phenomena. Mussolini, the leader of the fascists, actually forcefully promoted a similar identification between the ancient Roman state and the modern fascist state, a policy that had deep repercussions in the scholarly world.54 Both were misguided in their own way. One simply cannot equate the workings of politics and law in a modern industrial society and a place like Rome, a strongly segmented society based on agriculture and trade, ruled by an oligarchy. In the same way that observations from tribal or feudal societies are non-transferrable but useful as evidence of forms of human culture, one must tread a fine line between what can and cannot be generalized.55 Despite these 54 Nelis, From Ancient to Modern (2011). Mussolini’s justice minister, Pietro de Francisci, was instrumental in promoting the exemplarity of Rome, but he was also a scholar of Roman law, studying Augustan policies. De Francisci, Principato Augusteo (1941). 55 For example, a comparison between the consolidation of power by Vladimir Putin of Russia and Augustus shows interesting similarities with regards to the development of the ruler’s role in the field of law. An autocratic ruler gains power and begins to use law in a number of ways to solidify that power. The lives and

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similarities and parallellisms, is there an explanatory potential to be utilized between the superficially similar actions and events in fundamentally different historical surroundings? A case in point is the very notion of petition and response that underlies much of the scholarship on early imperial adjudication. Central to the narrative of the growth of imperial adjudication throughout the period under scrutiny is the flow of petitions and petitioners towards the emperor and the willingness of the emperor to meet them and to hear their grievances. This petitioning to the chief, king, or ruler is a near-universal phenomenon that enjoys a privileged position in the historical as well as mythological narratives of kingship. Medieval French kings would hear the petitions of their subjects and that would be a central part of their kingship. King Louis IX (1226–70) held his receptions in Vincennes under an oak tree, allowing petitioners to approach him and treating them with exceptional kindness and intimacy.56 In the Ethiopian monarchy, one of the longest continuous traditions of kingship, the King of Kings was the direct descendant of King Solomon and, like him, the supreme judge whose rulings were the final truth on any matter. In all instances, the approachability, benevolence, and power of the ruler are part of the same process of popular acceptance.

NARRATIVES AND HISTORY The concept of narrative is central to the argument that this book seeks to make: that the practice of imperial adjudication grew out of the spread of the common conviction that the emperor is the final property of opponents come under threat from the minions of the ruler, who use questionable legal means to expropriate their property, while the opponents themselves may be jailed, exiled, or worse. The ruler uses the control over resources to reward his supporters and to solidify his control, installing cronies in all central positions in society, where they become not only powerful, but extremely rich. A concerted propaganda campaign is used to marginalize opposition and to solidify support, drawing on patriotic themes and ideas of a revival of past ideals and glory. See Dawisha, Cleptocracy (2014) on the extensive literature on Putin’s ‘vertical of power’ and the central role that law had in its execution. 56 Delogu, Theorizing (2008). The medieval kings were quasi-mythical characters, as was already noted in Marc Bloch’s famous Les Rois thaumaturges (1924), translated as Bloch, Royal Touch (1990).

Introduction

17

arbiter of (nearly) all things, and that the stories that circulated (and are now preserved in the historical writings of the era) were instrumental in the formation of that conviction. Because narratives are the most common way of structuring phenomena and making sense of the world, studying them and their changes offers a way to observe changes in the understanding of the social world and the social and legal imaginary.57 This proposition rests to a large degree on a theoretical foundation built by narrative studies during the last decades. The tradition of narrative theory has, from the works of Ricoeur onwards, defined narratives as explanations of events in a form that is understandable and acceptable, to bridge the gap between an event (or human experience) and its explanation. The concept of narrative is used in this study in both a historical and a legal sense, as narratives of constitutional relevance explain not only the events and their meanings,58 but also how this narrative could influence the shared conviction of the possibilities available. We shall also see how the formulation of a narrative becomes a constitutive force that has normative effects. As noted earlier, within the study of Roman constitutionalism the normativeness of historiography has already been increasingly recognized, insofar as the understanding of history was often the defining element in what was considered legitimate and what was not. The legal formalist view operates in its own way as a narrative that bestows and reinforces legitimacy. What narratives like the ones explored in this book provided, constituted, and shaped were the background understandings that made possible the formation of the emperor’s jurisdiction and gave it a shared sense of legitimacy.59 The perhaps unsettling matter that lies between both the issue of narratives and legal formalism is that of their reliance on belief. Though the legal system is ultimately backed up by the use of coercive force, for the main part it relies on the fact that the majority of subjects

57 On the historical understanding of law and narrative, see Bartor, Law as Narrative (2010). 58 The understanding of the narrativity of history is a contested issue, to formulate the matter mildly. For some references, see Rigney, ‘History as Text’ (2012), 183–201; Ankersmit, Meaning, Truth, and Reference (2012); Munslow, Narrative and History (2007); Ricoeur, Time and Narrative (1990); Carr, Time, Narrative, and History (1986). 59 On a similar project of shared understandings, see Ando, Roman Social Imaginaries (2015), 4.

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believe in the law, the system of laws that set the rules, the courts that apply them, and the officials that enforce the rulings. What the laws, courts, and officials based their legitimacy upon was a wholly other matter of constitutionality. For Romans, constitutionality rested on tradition, the vaunted mos maiorum, or in the later theories such as that of Ulpian, in some kind of idea of popular sovereignty. The traditional constitutional argument of the legitimacy of the constitution resting on long practice (the way that things have always been done) and the newer argument of popular sovereignty are, of course, like most constitutional legitimations, references pointing outside of the constitution (the basic norm, if one wants to use the Kelsenian term).60 The fundamental issue of both historical narratives and law is that their validity and legitimacy are ultimately founded on the acceptance and use by the members of the community.61 The point for the argument in this book is that the emperor’s jurisdiction emerged gradually and with a number of different factors contributing, ranging from the possible legislative inputs and other formal legal developments, the morphing of jurisdictional tradition from the Republic to the Empire, the established traditions of kingship, and the role of the ruler as judge. What we will be doing is approaching these different elements as narratives that shape the convictions of the various actors, beginning with the emperors themselves, about the capabilities that were assumed and expectations that were placed on the emperors at different times to resolve legal issues.

OUTLINE The first chapter lays out the numerous contradictory foundations for imperial jurisdiction in the Republican intellectual and administrative 60 The issue is finally one that has been defined as the ‘Turtles all the way down’ dilemma. Stephen Hawking, A Brief History (1995), 1, famously defined it as the issue of what the world and ultimately the universe rests upon. An ancient explanation was that the world is a disk that is perched upon a gigantic turtle. When inquiring minds wanted to ask what the turtle then rests upon, the answer is that there is another turtle. What does that turtle then stand on, one might ask? The final answer is, naturally, that it is turtles all the way down. 61 On historical narrative and the community, see Carr, Experience and History (2014), 119.

Introduction

19

traditions. Through a reading of pro Ligario, one of Cicero’s Caesarian speeches, the chapter analyses the contemporary meanings Cicero gives to the emergence of sovereign jurisdiction in the Late Roman Republic. Addressed to Caesar as dictator, the speech is the only contemporary source for Caesar’s jurisdiction and reveals the confusion and ambivalence surrounding it. Through the options Cicero gives to Caesar, to be a tyrant, a strict Roman magistrate, or a lenient father, the chapter outlines the many ways the past influenced the actions of men like Caesar and his successors. The memory of Greek and Hellenistic kings and tyrants, not to mention Roman warlords like Sulla, served as warnings, while administrative practices like the jurisdiction of the provincial governor or that of the paterfamilias were not only precedents, but also formed expectations. The second chapter approaches Augustus as judge through three contemporary cases: the relegation of Ovid and two cases from the provinces. In earlier literature, Augustus’ jurisdiction has been a source of constant debate, with alternatives ranging from official legislative authorization to usurped ad hoc jurisdiction. This chapter maintains that instead of a clear and definite answer there were contradictory narratives in which Ovid and the provincial petitioners described Augustus in various ways as a sovereign judge and ruler, while Augustus himself maintained that the Republican continuity was dominant. While later Roman authors and most modern scholars emphasized how Augustus possessed formal, regular jurisdiction like his successors, what emerges from contemporary sources is a picture of exceptional powers being used while making constant ambiguous references to their Republican origins and framework in concepts like auctoritas and imperium. In the third chapter, the evolution of the narrative of imperial jurisdiction is traced through the writings of Seneca, Tacitus, and Pliny, which offer conflicting accounts of how the emperors adjudicated. It is argued that instead of a common conviction or an agreement over imperial jurisdiction, the confusion over the role of the emperor as judge continued. Seneca depicts an all-powerful judge, who has power over life and death, like a Roman paterfamilias, while Tacitus describes Tiberius as an investigative sovereign judge, who carefully finds out the truth but acts through intermediaries. Pliny, on the other hand, shows us Trajan as a considerate judge who wisely settles disputes from petitioners with the help of his consilium. The recounted examples of the actions of previous emperors are, as the lex

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de imperio Vespasiani demonstrates, vital to the formation of a common understanding of imperial power. At the same time, the historical narrative is interspersed with stories of emperors gone mad or corrupted by their power, wrongly condemning and torturing people. However, even these seemingly mad emperors are said to have acted dutifully as judges. Such contradictions, far from being inconsistencies, may be seen as fundamental to the nature of imperial rule. In practice, acting as a judge, holding audiences, and answering petitions is becoming a fundamental part of being a good emperor. The fourth chapter discusses Hadrian, who has been elevated in the literature as an ideal judge and emperor, whose enlightened rulings brought justice even to the lowliest of petitioners while curbing the excesses of the powerful. The discussion will focus on the praise of Aelius Aristides about how the Roman emperors would respond to the legal queries of petitioners, and then on a legal case in which Hadrian punishes a father for the abuse of patria potestas. Analysing the different narratives surrounding Hadrian, this chapter problematizes the idealistic interpretation, arguing that some of the praise offered to Hadrian is based on very late and inaccurate sources. However, the individual cases by Hadrian show an emperor personally involved and invested in offering recourse and justice to the people. The fifth chapter will approach the growing omnipotence of emperors in the Severan era through two cases of Septimius Severus and Caracalla. Through an analysis of these different cases, the chapter demonstrates the different aims of imperial adjudication. Routine cases that had perhaps important political and economic implications were dealt with summarily and often with little consideration for the image that would be projected and its ideological implications. In cases where people with grievances had made considerable effort to get a hearing, the emperors might grant their wishes. These hearings, clearly intended for projecting the image of the good emperor listening to the people and righting the injustices inflicted upon the lowliest of his subjects, were an integral part of the good-king myth and spread the idea of the emperor as living law. A similar image of the omnipotence of the emperor as judge, and generally in matters of law, was conceptualized in the works of Ulpian and Dio, with important repercussions.

1 Caesar, Cicero, and the Models of Legal Autocracy INTRODUCTION It may appear strange to begin a book on the Roman emperors as judges with a chapter devoted to Julius Caesar,1 who may have been many things but was definitely not an emperor. However, as the stated aim of this book is to challenge the view that imperial jurisdiction was the result of either constitutional authorization or adherence to custom, and to argue for a more nuanced model that takes into account historical development, there is a point. The fact that the emperor became the final authority in law and the supreme judge was one of the most significant changes between the Republic and the Empire.2 The accumulation of administrative practice, as well as the numerous attempts at defining the powers of emperors, were equally important in outlining what the emperor could do and what was expected of him. The historical figure of Julius Caesar, besides being understood as the first emperor by, for example, Suetonius,3 and lending his own name to the institution, was fundamental to the process of creating imperial jurisdiction. Increasing the complexity

1 There is an abundance of literature on Julius Caesar. The main biographical works are Gelzer, Caesar (2008); Meier, Caesar (1982), while more interesting are Canfora, Julius Caesar (2007) and Tatum, Caesar (2008). For an overview of the life and afterlife of Caesar, see Griffin, Companion to Caesar (2009). 2 The continuities and discontinuities of jurisdiction between the Republic and Empire were already mentioned by Millar, Emperor (1992 [1977]), 508, 517. 3 On Caesar as the first emperor in later Roman historiography, see Barnes, ‘First Emperor’ (2009). See Wallace-Hadrill, Suetonius (1983) on Suetonius’ work as biography, not history.

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of any inquiry into Caesar’s jurisdiction is the fact that it is nowhere mentioned under which official justification he is acting. While later authors, such as Suetonius, see Caesar as a diligent judge having a routine jurisdiction, contemporaries, such as Cicero,4 are more circumspect. This chapter explores the understanding of what it meant, according to Cicero, to be Caesar the judge in the tumultuous Late Republic, navigating between contradictory demands by Republican legal and constitutional traditions and autocratic practices. One of the main features of the Late Republican debates, especially for authors like Cicero, is the prevalence of constitutional interpretation, the presentation of arguments of constitutionality. Without going into the debates over the Roman concept of constitution or its very existence, it is crucial to recognize the centrality of these arguments for the transformation of what was considered acceptable with regard to the constitutional framework defined by mos and ius.5 While practices such as extraordinary commands and the exceeding of magistracies’ time-limits were seen as potentially unconstitutional, Cicero, our main source for Late Republican constitutionalism, was adamant that the tradition of the maiores was to respond to emergencies with new ways of doing things.6 Seldom does one see the transformation of the concepts of law and justice as clearly as in pro Ligario,7 one of Cicero’s so-called Caesarian speeches, where he eloquently outlines the indeterminacy of the situation and the various elements of Roman tradition at play. The

4 Of the vast biographical literature on Cicero, see Fuhrmann, Cicero (1992); Everitt, Cicero (2001). There has been a resurgence of interest in the mix of history and philosophy in Cicero’s writings, e.g. van der Blom, Cicero’s Role Models (2010); Gildenhard, Creative Eloquence (2011); Baraz, A Written Republic (2012); Atkins, Cicero on Politics (2013). 5 Straumann, Crisis and Constitutionalism (2016), 27–62, outlining the arguments for Roman constitutional thought, ranging from Tacitus’ idea of an underlying powerstruggle to Livy’s idea of popular sovereignty (7.17.12) and Cicero’s own constitutional framework in De legibus. 6 Cic. Leg. Man. 60. 7 Walser, ‘Prozess des Ligarius’ (1959), 95; Kumaniecki, ‘Prozess des Ligarius’ (1967), 439; McDermott, ‘In Ligarianam’ (1971), 317–47; Loutsch, ‘Ironie et liberté’ (1984), 98–110; Bringmann, ‘Caesar als Richter’ (1986), 72–88; Montague, ‘Advocacy and Politics’ (1992), 559–74; Rochlitz, Bild Caesars (1993); MacKendrick, Speeches of Cicero (1995), 424; Gotoff, Companion to Cicero (2002), 235–40; Johnson, ‘Dilemma’ (2004), 372–3; Lintott, Cicero as Evidence (2008), 313–19.

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examples raised by Cicero, the tyranny of Sulla,8 the strictness of a Roman magistrate, and the leniency of a father, are all important for suggesting the origins of the ruler’s jurisdiction. These precedents were also repeated in later attempts to define imperial power by Seneca, Aelius Aristides, and others. What the evoking of precedents achieved was the demonstration of possibilities and consequences by outlining what was expected of a ruler and how those expectations were met. Equally important was the historical memory that was suggested, and thus the public image with which rulers like Caesar could align themselves.9 As dictator, Caesar was safely within the traditional Roman constitutional framework. As we will see, the historical image of Caesar was only later reduced to that of an autocrat aspiring to the position of a Hellenistic divine king. What pro Ligario illustrates are the expectations, the hopes, and fears that were placed on a figure like Caesar. Consequently, there emerged two competing narratives of the reign of Caesar that were important for the development of later imperial jurisdiction. The first was that of Caesar as a Republican magistrate, while the second showed him as a sovereign figure aspiring to divine status. Even more essential for the future imperial jurisdiction was the practice of appealing to the ruler in issues of legal relevance that brought the supreme authority into the legal sphere and created a precedent for executive influence. The literature on pro Ligario has been fairly limited. Grouped together with other ‘Caesarian speeches’, they are usually presented as an interlude late in Cicero’s life before his famous last orations, the Philippics. Though Quintilian appreciated and quoted from it many times,10 modern scholarship has taken a negative view of pro Ligario that has only recently changed to a more positive one. Beginning with Walser, most scholars have held the speech to be a mediocre performance in a staged trial, where Cicero debases himself by publicly praising Caesar.11 The revisionist 8

It should be noted that Cicero does not explicitly call Sulla a tyrant in the speech. On the uses of history and memory in Roman culture and politics, see Gowing, Empire and Memory (2005); Flower, Roman Republics (2010). 10 Quint. Inst. 5.13.20, 5.13.31, 11.1.78–80. The speech is mentioned also by Pomponius in Dig. 1.2.2.46. 11 e.g. Walser, ‘Prozess des Ligarius’ (1959); Drumann, Geschichte Roms (1899–1929); Kumaniecki, ‘Prozess des Ligarius’ (1967); McDermott, ‘In Ligarianam’ (1971). 9

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interpretation, starting with Montague, has argued that the speech is, in fact, a brilliant rhetorical exercise that operated extraordinarily well in difficult circumstances by using irony and ambiguous rhetorical constructions.12 The purpose of this chapter is to demonstrate how rich the historical dimension of the speech is and how it illustrates the background of sovereign jurisdiction in the Late Republic through the discourse of historical elements. Cicero’s pro Ligario utilizes the power of precedent and memory by illustrating the contradictory demands placed on Caesar. Legal matter13 aside, Cicero elaborates the choices available to Caesar and the fame or infamy that would result from following those choices through to their logical conclusions. In a sense, Cicero shows Caesar in advance the judgment of history. While he does address the criminal matter at hand, the crucial argument revolves around Caesar’s reputation. If Caesar were to punish Ligarius, he would be no better than Sulla. For a leader of the populares so conscious of his historical image as to write his own memoirs, this was a serious charge. Of course, the aim of Cicero is to influence Caesar’s actions in favour of his client. On a deeper level, however, the speech is an example of the confusion surrounding the role and powers of the leaders of the Late Republic, a situation where the only constant was the element of change.14 The context of the case is the final transformation of the Roman Republic, characterized by recurring civil strife and war. Intense aristocratic competition, fuelled by imperialistic wars of expansion, dominated domestic politics. Warlords, successful commanders of troops, sought and gained unprecedented powers with the help of their armies.15 The Senate, the plebs or the people of Rome, and the provincials sought to utilize the situation to their advantage. Because See Montague, ‘Advocacy and Politics’ (1992); Gotoff, Companion to Cicero (2002); Johnson, ‘Dilemma’ (2004). 13 The fundamental analysis is still Bauman, Crimen Maiestatis (1967), 144–7. As is typical of Cicero’s speeches, the exact charges are not discussed nor the legal rules surrounding the case mentioned. There are numerous possibilities for what the charges might have been based on, including the lex Iulia de maiestate of 48 BC. 14 On the era, see Gruen, Last Generation (1995); Bleicken, Zwischen Republik und Prinzipat (1990); Christ, Krise (1984). 15 Exceptional and extraordinary military commands, while not unknown earlier, proliferated, the first being that granted to Marius (Cic. Prov. cons. 19). Straumann, Crisis and Constitutionalism (2016), 100–17; Hurlet, ‘Pouvoirs extraordinaires’ (2010); Vervaet, ‘Praetorian Proconsuls’ (2012); Vervaet, High Command (2014); Arena, Libertas (2012). 12

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he is the most voluminous and detailed source for the era, this is to a large degree a world shown to us through the eyes of Cicero, even as it is defined by Caesar. Cicero reflects the reality of the time, but also offers us his preferred interpretation, a kind of imaginary context, that of the Republican ideal. This case offers a glimpse of the concepts of jurisdiction16 and emergence of autocracy in the Late Republic, a rare contemporary account not coloured by what was to come. We, like Roman authors after the Ides of March, 44 BC, know what came afterwards. Within a few years of the trial, Caesar was dead and the man he pardoned, Ligarius, was among his killers. He would also soon be killed in the proscriptions that followed. Ligarius’ defender, Cicero, would be dead as well, his hands and tongue nailed to the Rostra in the Forum.

THE CLEMENCY OF CAESAR Of the facts surrounding the text, we know that the speech was delivered before Julius Caesar in the Roman Forum (see Fig. 1.1) in the autumn of 46 BC. The accused, a knight named Quintus Ligarius, was charged with unspecified offences as a member of the Pompeian side during the civil war in Africa. His accuser was Quintus Tubero, who had also fought for Pompey. Ligarius had been legate to the governor of Africa, one of Pompey’s strongholds, when the war broke out, and had been given the task of guarding the coastline. When Quintus Tubero and his father L. Aelius Tubero sailed to Africa, Ligarius had denied them entry, even though the elder Tubero had been appointed propraetor of Africa by the Senate. The reasons for this are never explained. After the incident, the father and son sailed on to Pompey’s camp in Macedonia, where they were caught and eventually pardoned by Caesar after the battle of Pharsalus in 48 BC. Ligarius, on the other hand, fought on, and was captured only after the battle of Thapsus in the spring of 46 BC. The precise charge used against Ligarius is not known, but possibilities are perduellio 16

We know of very few trials from the last years of the Republic; see Balbo, ‘Attività giudiziaria’ (2009), 527–75. Balbo counts just nine known trials between 49 BC and Caesar’s murder in 44 BC. Alexander, Trials (1990) reaches the number of 391 trials between 149 and 50 BC by counting every single one mentioned in passing.

26

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M

NE

SE

L

E

NW

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A

N

SW

K

S

J

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DOMUS DOMUS DOMUS

DOMUS

A B C D E F G H I

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FORUM ROMANUM AND VIA SACRA UNDER CAESAR A site plan presenting the new changes introduced by caesar in relatin with Via Sacra and its provate buildings. General sources: H. Broise & J. M. David 1984; E. La Rocca 1990 (E. Monaco); F. Coarelli 2007 Individual buildings: A. Carandini (D. Filippi) 2010 (B,P,Q); F. Coarelli 2007 (A, G); Guldager & Poulsen 2008 (F); R. T. Scott 2009 (C,D); E. M. Steinby 2012 (E) copyright Juhana Heikonen 2015

Fig. 1.1. Forum Romanum during the trial of Ligarius. Reconstruction by Juhana Heikonen.

The Emperor of Law

DOMUS

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or maiestas, because the Pompeians in Africa were allied with King Juba I of Numidia.17 At the time of the trial Ligarius was in exile, but his interests in Rome were furthered by his brothers. To summarize, one former enemy of Caesar was accusing another former enemy of Caesar concerning actions that took place while fighting against Caesar. And Caesar was the judge. The fact that Caesar acted as judge was most likely due to the fact that he was at that time both consul and dictator;18 however, there is little mention of the formal jurisdictional authority or the legal framework of the case.19 Under the circumstances (the period from 48 to 44 BC), it is perhaps meaningless to ask whether Caesar exercised jurisdiction as consul or as dictator.20 During 46 BC Caesar was consul for the third time, with Lepidus, and after the battle of Thapsus was made dictator for the third time, with Lepidus as his magister equitum.21 The context of the trial is clearly political, and it is in many ways comparable to the rulings over the life, death, and property of political opponents during the civil wars, but the very public form that it took was decidedly one of a trial or a judicial hearing.22 Some have wondered whether the trial might have actually been a show trial meant to advertise Caesar’s clemency.23 Others have claimed that the purpose was to make an example of Ligarius by convicting him, but that Caesar acquitted him as a favour to Cicero.24 A third group has asked whether the trial might have been used to show that the government was functioning and to discourage private vendettas.25 17 Bauman, Crimen Maiestatis (1967), 144; Johnson, ‘Dilemma’ (2004), 372–3; Gotoff, Companion to Cicero (2002), 235–40. For maiestas, a relevant quaestio would have naturally been available. 18 The sheer volume of literature on Roman dictatorship is immense. Some examples are Bandel, Die römischen Diktaturen (1910); Cohen, ‘Origins of the Roman Dictatorship’ (1957); Kaplan, Dictatorships (1977); Millon-Delson, ‘Dictature et despotisme’ (1997); Nicolet, ‘Dictatorship in Rome’ (2004); de Wilde, ‘Dictatorship’ (2013); de Wilde, ‘Dictator's Trust’ (2012). 19 Lintott, Cicero as Evidence (2008), 318 calls it an ad hoc procedure, since in the quaestio de maiestate Caesar would have had no place. See Cass. Dio 42.19–20 on Caesar’s jurisdiction. 20 Millar, Emperor (1992 [1977]), 518. 21 Broughton, Magistrates of the Roman Republic (1952), 2:284, n. 1; Cass. Dio 43.14.4. 22 Millar, Emperor (1992 [1977]), 520. 23 Walser, ‘Prozess des Ligarius’ (1959), 95; Kumaniecki, ‘Prozess des Ligarius’ (1967), 439; MacKendrick, Speeches of Cicero (1995), 424. 24 McDermott, ‘In Ligarianam’ (1971), 323–5. 25 Gotoff, Companion to Cicero (2002), 240.

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Whatever the underlying motivations for the trial were, it was an important event for Cicero. For the first time in six long years, Cicero had the corona of the audience in the Forum. He had prepared his defence beforehand by appealing to Caesar at his home, accompanied by Ligarius’ brothers, who had allied with Caesar early on and now prostrated themselves at his feet, asking him to pardon their brother. Meanwhile, Q. Tubero had sought Caesar’s permission to prosecute Ligarius. Two letters by Cicero to Ligarius regarding the case are preserved, as well as Plutarch’s description of the trial itself, according to which Caesar agreed to hear the defence of Ligarius only out of a desire to once more enjoy Cicero’s eloquence. Caesar’s true motives remain, of course, unknown. That the trial was by nature political is self-evident; however, the choice of accused and accuser were rather surprising for a show trial.26 As in the other Caesarian speeches, pro Marcello and pro Rege Deiotario, Cicero’s argument to Caesar was aimed at posterity, not the present legal issue. In his unorthodox defence of Ligarius, Cicero describes the positions Caesar could assume while judging the case, attempting to show what kind of a man Caesar would appear to be, not only in the eyes of those present, but also the wider Roman world both now and in the future. This strategy would appear to be rather obvious, aimed as it is against a man who had been publishing his memoirs. It has been argued that after the battles in Africa, Caesar had been uneasy about his reception in Rome, while his opponents feared that Caesar would turn out to be another Sulla and launch into proscriptions.27 While the speech contains ample irony, Cicero praises Caesar’s virtues, although whether this is simple toadying to the dictator or genuine appreciation of Caesar’s virtues is, of course, debatable.28 What is interesting is that Cicero presents Caesar with several options intended to show what kind of role29 Caesar wishes to play:

26 Cic. Fam. 6.13–14; Plut. Vit. Cic. 39.6–7; Gotoff, Companion to Cicero (2002), 235–40; Lintott, Cicero as Evidence (2008), 317–18. 27 McDermott, ‘In Ligarianam’ (1971), 318. 28 McDermott, ‘In Ligarianam’ (1971), 336 claims that the praise for Caesar’s virtues is genuine. Rochlitz, Bild Caesars (1993), 126 is suspicious of Cicero’s sincerity, and Loutsch, ‘Ironie et liberté’ (1984), 110 argues that Cicero uses irony to present his independence from the dictator. 29 See Johnson, ‘Dilemma’ (2004), 378 for an analysis on the argument regarding safe criticism directed at tyrants.

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a tyrant, a magistrate, or a paterfamilias. Pro Ligario is in many ways a call for clemency for the accused, but it also contains a rich subtext in which Cicero maps out for Caesar the different forms that Caesar’s authority in the field of law could take. The fundamental issues are whether Caesar considers himself to be bound by laws or free to overlook them, and whether he is advancing his private interests or those of the public. The issue of clemency was in many ways central to the development of imperial jurisdictions, since it was not only a virtue that came to be associated with emperors from Augustus onwards, but also with the whole imperial system of law.30 The fact that the speech focuses so much on these considerations of image shows equally how Caesar’s adjudication was free and different from a regular quaestio. The models that Cicero presents may be analysed through two points of references of which Cicero may assume that his intended audience, Caesar, is aware. One is the general historical and philosophical context of Greek and Roman civilization, while the second is Cicero’s own writings. In the following, I shall examine what kind of intended meanings concepts like ‘tyrant’ and ‘magistrate’ would have in pro Ligario and what significance they hold for jurisdiction. For example, ‘tyrant’ might not only refer to a tyrannical ruler, but also be a complex reference to the Greek historical experience. However, the actions of a Roman magistrate could be equally tyrannical. The first model Cicero presents, that of a tyrant, serves as a warning against tyranny. Although Caesar can acquiesce to the charges brought by Tubero, this would make him appear harsher than the tyrant Sulla. Cicero presents the accusations of Tubero as worse than the cruelty of inhuman barbarians or Greeks, for with Ligarius already in exile, only the death penalty remains as an option for further punishment. Though Cicero’s logic does not actually bear closer examination from the perspective of criminal law, it does not really matter here.31 What Cicero is arguing is that following the advice of Tubero would lead Caesar out of the community of citizens. Only cruel barbarians would act with such merciless hatred towards one of their own, and while Tubero had already shown his true colours by demanding such punishment, Cicero cautions Caesar not to make the same mistake. 30 31

Dowling, Clemency and Cruelty (2006). Cic. Lig. 11; Gotoff 2002, 245; May, Trials (1988), 144.

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This part of the speech is a continuous character assassination of the accuser, with Tubero first presented as a fierce opponent of Caesar: When your sword, Tubero, was unsheathed on the field of Pharsalus, what was its object, at whose breast was its blade directed, what was the significance of your weapons, upon what were your thoughts, yours eyes, your strong right arm, your fiery spirit bent? What desires, what dreams did you cherish? I am too insistent; my young friend betrays embarrassment; I will return to myself. I fought on the same side. Quid enim tuus ille, Tubero, destrictus in acie Pharsalica gladius agebat? Cuius latus ille mucro petebat? Qui sensus erat armorum tuorum? quae tua mens, oculi, manus, ardor animi? quid cupiebas? quid optabas? Nimis urgeo: commoveri videtur adulescens: ad me revertar: isdem in armis fui.32

Tubero’s accusation is then labelled as something worse than even Sulla could conceive: But even under the dictator who visited with death all whom he disliked, no one did what you are doing and as you are doing it. He ordered men to be murdered, though none accused; he lured men by bribes to commit murders; but his cruelty was requited years afterwards by the very man whom you today are urging to cruelty. At istud ne apud eum quidem dictatorem, qui omnis quos oderat morte multabat, quisquam egit isto modo. Ipse iubebat occidi nullo postulante; praemiis etiam invitabat: quae tamen crudelitas ab hoc eodem aliquot annis post, quem tu nunc crudelem esse vis, vindicata est.33

Cicero styles the accusation presented by Tubero as a pitiless call to refrain from clemency and pardon, as if Tubero had actually burst into the home of Ligarius’ brothers and cried that there should be no mercy, no sanctuary for the poor man.34 Cicero then reasons that if Caesar were to side with the murderous monster Tubero, who recently tried to kill him, he would be remembered as the second Sulla, a tyrant who murdered with abandon and greed the very people whose champion Caesar portrays himself to be. Cicero knew surely that Caesar himself had been forced into hiding in fear for his life during Sulla’s reign. Alternatively, however, Caesar can become

32 33

Cic. Lig. 9. Tr. Watts, Cicero (1964). 34 Cic. Lig. 12. Cic. Lig. 13–14.

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famous for his clemency and, at the same time, reward his loyal allies by pardoning their erring brother. The character of the tyrant was a powerful tool in the depiction of unfettered power and one that Cicero had used on numerous occasions. For Cicero, tyranny meant clearly the abuse of public power for the advancement of private interests, not a position of power in itself.35 As has been demonstrated elsewhere, the Romans of the Late Republic often compared the power and position of their magistrates to their contemporary counterparts.36 According to Cicero, a tyranny may even be instituted by law: Of all laws I think that is the most iniquitous and least like a law, which Lucius Flaccus, the interrex, passed in regard to Sulla—that all his acts, whatever they were, should be ratified. For, while in all other states, when tyrants are set up, all laws are annulled and abolished, in this case Flaccus by his law established a tyrant in a republic. Omnium legum iniquissimam dissimillimamque legis esse arbitror eam quam L. Flaccus interrex de Sulla tulit, ut omnia quaecumque ille fecisset essent rata. Nam cum ceteris in civitatibus tyrannis institutis leges omnes exstinguantur atque tollantur, hic rei publicae tyrannum lege constituit.37

For Cicero, tyranny was thus a complex phenomenon. Cicero approved the Republican form of dictatorship as the final self-defence of a beleaguered commonwealth against its enemies, but the extraordinary powers were to be used only for the common good. Sulla’s dictatorship was based on law, but Cicero’s true constitutional dictatorship was based on the constitutional tradition and adhered to its higher virtues.38 The line between the good dictator and the bad tyrant, therefore, is defined essentially by the virtue and self-control of the person holding the office, not the office itself: Do you not see, therefore, how a king was transformed into a despot, and how a good form of government was changed into the worst

35 Cicero uses the term tyrant in both a theoretical and purely situational manner, for example, when he describes Clodius as a tyrant in pro Milone 13.35. Clark and Ruebel, ‘Philosophy and Rhetoric’ (1985), 57–72; Béranger, ‘Tyrannus’ (1935), 85–94. 36 Rawson, ‘Caesar’s Heritage’ (1975), 148–59; Kalyvas, ‘Tyranny of Dictatorship’ (2007), 412–42. 37 Cic. Leg. agr. 3.5. Tr. Watts, Cicero (1964). 38 Straumann, Crisis and Constitutionalism (2016), 82–5. In contrast, Kalyvas, ‘Tyranny of Dictatorship’ (2007), 426, 432 maintains that, for Cicero, dictatorship was a form of controlled, or legal, tyranny.

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possible form through the fault of one man? For here we have a master over the people, whom the Greeks call a tyrant; for they maintain that the title of king should be given only to a ruler who is as solicitous for the welfare of his people as is a father for his children, and maintains in the best possible condition of life those over whom he is set. Such a government is truly a good one, as I have said, but nevertheless it inclines, and I may almost say, naturally tends, toward the condition which is the most depraved of all. For as soon as this king turned to a mastery less just than before, he instantly became a tyrant; and no creature more vile or horrible or more hateful to gods and men, can be imagined; for, though he bears a human form, yet he surpasses the most monstrous of the wild beasts in the cruelty of his nature. Videtisne igitur ut de rege dominus extiterit, uniusque vitio genus rei publicae ex bono in deterrimum conversum sit? hic est enim dominus populi quem Graeci tyrannum vocant; nam regem illum volunt esse, qui consulit ut parens populo, conservatque eos quibus est praepositus quam optima in condicione vivendi, sane bonum ut dixi rei publicae genus. sed tamen inclinatum et quasi pronum ad perniciosissimum statum. [48.] simul atque enim se inflexit hic rex in dominatum iniustiorem, fit continuo tyrannus, quo neque taetrius neque foedius nec dis hominibusque invisius animal ullum cogitari potest; qui quamquam figura est hominis, morum tamen inmanitate vastissimas vincit beluas.39

Though this passage is to some extent based on the ideas of Plato and Aristotle on the pure and corrupted forms of government, it also illustrates the choices that Cicero outlines for Caesar to make. Caesar, who was elected as a magistrate to act in the best interests of the people, yet turned into a warlord seeking his own advantage. After his elevation to dictator, Cicero thus urges him to assume the role of the good king-father, and warns against the dangers of self-interested tyranny.40 When speaking of tyranny, the obvious point of reference for Romans of the generation of Cicero and Caesar was Greek history. The institution of tyranny was widespread in the Greek world, from the archaic period to the advent of Roman rule. It should be noted, however, that many Greek tyrants were, contrary to the traditional view informed by Plato and Aristotle, often popular and effective rulers. A tyrant in this sense was simply a ruler with absolute personal 39

Cic. Rep. 2.26.47-48. Tr. Keyes, Cicero (1994). Canfora, Julius Caesar (2007), 137–9 points out that Cicero implicitly suspected Caesar of seeking tyranny or regnum. 40

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power, being unconstrained by laws, as a king would be. While originally the term tyrannos meant a military leader, it came to signify a specific type of sovereign power. Either as wise lawgivers, good judges, or cruel despots, Greek and Hellenistic tyrants were often memorable figures, and stories of their excesses became a staple of ancient literature. Dionysios I and II, the tyrants of Syracuse, are cases in point, as their exploits were also referred to in Roman literature.41 In contrast to hereditary monarchs, many tyrants were military commanders who came to power via a coup and enjoyed the support of the populace. Naturally, they used such titles as strategos, archon, dynastes, or basileus rather than the term tyrannos, which tended to have negative connotations even among the Greeks.42 In the Homeric world, there were already ample precedents for the ruler’s jurisdiction. Judges were kings and kings were judges, the responsibility of adjudication being included among the various obligations of kings.43 Greek examples of tyranny and sovereign power also came to have an impact through philosophy. Aristotle and Plato are naturally the best-known constitutional theoreticians of the time, and their writings have profoundly influenced our understanding of ancient governance. Plato, of course, was vocal in describing the misery that tyranny brings both to the tyrant and his subjects. Lewis suggests that the popularity of this kind of argument among philosophers lay in the creation of a deliberate contradiction to the natural appeal of tyranny. That the philosopher would then propose replacing the tyrant with a wise philosopher-king is only a natural continuation of the allure of single rule.44 The Romans had a complex relationship with the idea of sovereign monarchical rulers with unfettered powers. On one hand, there was the Greek tradition of kingship, which held that kings were good and Cic. Off. 3.45. Anderson, ‘Turannoi’ (2005), 173–222, argues that archaic tyrants were not tyrants in the modern sense but simply rulers. Of the immense literature, see e.g. Andrewes, Greek Tyrants (1971). 42 Lewis, Greek Tyranny (2009), 1–11, 31–4. Aristotle (Pol. 5.1313a–1315b) naturally knew that tyrants could be popular and, in fact, discusses mockingly how a tyrant may be, if not virtuous, then at least half-virtuous and half-base, by making sure that he does not squander money and keeps his hands off the sons and daughters of his subjects. 43 Hom. Il. 2.205–6, 1.238–9, 9.97-9, Od. 11.186. See also Aristotle’s (Pol. 3.1285b.8–12) and Herodotus’ (1.96–7) views about early kings and rulers as judges. Papakonstantinou, Lawmaking (2008), 25–7. 44 Lewis, Greek Tyranny (2009), 80–101. 41

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enlightened rulers, strengthened by the Late Republican popularity as school texts of such books as Xenophon’s Cyropaedia, which depicted omnipotent ideal rulers. Similarly, figures like Alexander the Great were admired characters in Roman literature. On the opposite side was the tradition that associated kings and tyrants with cruelty and despotism, the opposite of liberty. Somewhere in between was the contradictory historical memory of the kings of Rome, some of whom were considered tyrants and some virtuous rulers.45 It is evident that while Cicero clearly drew from the multifaceted historical memory of tyrants and tyranny, his chosen meaning in pro Ligario was tyrannical behaviour. Thus there was no distinction between a Late Republican warlord and a tyrant other than the title, if they behaved tyrannically towards their subjects. Cicero illustrates this distinction with the case of Sulla, a man who killed whomever he disliked.46 For Cicero, the main issue was not whether someone in a position such as Sulla’s was above or under the law, but rather whether their powers were used to further the public good or private interests. Even though Sulla was later vindicated for his actions, he had, like the stereotypical evil tyrant, acted in his own interest.47 What the civil wars had shown was that in the end, at the time of crisis, law and the security offered by it are utterly dependent upon power. Though Cicero portrays him as a figure of self-serving cruelty in this speech, the historical record on Sulla is complex. Appian mentions how Sulla’s friends were murdered, his house destroyed and his property confiscated. He himself was declared an enemy of the state and his wife and children only barely managed to escape.48 While his opponents were certainly not blameless champions of liberty, Sulla’s historical legacy is far worse.49

45 Rawson, ‘Caesar’s Heritage’ (1975), 149–52; Kalyvas, ‘Tyranny of Dictatorship’ (2007), 428. 46 Cic. Lig. 12. On Cicero’s idea of tyranny in the context of the political and philosophical spheres, see Lintott, Violence (1968), 57–8. 47 Cicero was clearly troubled by the way Sulla maintained the superficial legality of his acts while disregarding the constitutional tradition of justice (mos and ius) and safeguards like provocatio (Att. 9.15.2). Straumann, Crisis and Constitutionalism (2016), 82–3. 48 App. B Civ. 1.73.340. 49 e.g. Dion. Hal. Ant. Rom. 7.54-56 describes Sulla as the only dictator to have used his power with harshness and cruelty, as a tyrant. Similarly App. B Civ. 1.99.

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Victory in the civil war made Sulla the unchallenged ruler of Rome, a position he used with unprecedented ruthlessness to change conceptions of law and justice, not to mention their relationship with personal security and property rights. Sulla, in other words, took the position of dictator and used it to refashion the constitution of the Roman Republic with an ambitious legislative programme.50 More concretely, this legislation also sanctioned proscriptions, a series of premeditated and organized campaigns of what can only be described as mass murder and plunder. Proscriptions not only transformed the upper classes but also had far-reaching implications throughout the Roman world by transferring property ownership en masse to persons and groups loyal to Sulla.51 Such proscriptions carried with them a deeper symbolism than the simple fact that certain persons were declared outlaws and their property was to be confiscated. More important was the notion that one’s life and the safety of one’s family and possessions depended on the good-will of a single man, who could at will take all of it away. No legal safeguards existed against this; there was no appeal to the people or fair trial, simply the order of one man.52 Though some have argued that the compatibility of the dictatorship that was conferred on Sulla in 82 BC with the Roman traditions of magistracy is dubious,53 his actions were formally sanctioned by laws.54 Alongside such tyrannical acts stands the Sulla who is, in many ways, an important figure in the development of the imperial system 50 Cic. Leg. agr. 3.5, Verr. II.3.82; Vervaet, ‘Lex Valeria and Sulla’s Empowerment’ (2004), 42; Ehrenberg, ‘Imperium maius’ (1953); Hantos, Res publica (1988); Hurlet, Dictature de Sylla (1993). Kalyvas, ‘Tyranny of Dictatorship’ (2007), 428 refers to the distinction made by Mommsen, and later, famously, Schmitt, between the archaic dictatorship seeking to preserve the state and the Sullan dictatorship aiming to radically change it. 51 Hinard, Proscriptions (1985); Santangelo, Sulla (2007), 9, 80–1 et passim describes the effects at a local scale. See also Betti, Crisi della repubblica (1982). 52 Cic. Dom. 43, Lig. 12; Hinard, ‘Dictature de Sylla’ (2007), 2510–11, but see also de Wilde, ‘Dictatorship’ (2013), 1–39. The actions of Sulla were, of course, formally ratified by the people. There was no recourse to provocatio because a SCU would bypass it, but whether a certain dictator was limited by it varied (dictator sine provocatione). Straumann, Crisis and Constitutionalism (2016), 129–39; see Lintott, ‘Provocatio’ (1972); Humbert, ‘Le Tribunat de la plèbe et le tribunal du peuple’ (1988). 53 Plutarch (Vit. Sull. 33.1) famously noted that Sulla appointed himself as dictator. There is a continuing debate over whether and how much Sulla violated the traditional limits of dictatorship; see Straumann, Crisis and Constitutionalism (2016), 79–81. 54 Cicero (Att. 9.10.3) would state that Sulla, Marius, and Cinna acted rightfully (recte) and even lawfully (iure); see also Flower, Roman Republics (2010), 91.

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of law. He was an initiator of ad hoc jurisdiction, a phenomenon that would prove to be central to the development of imperial jurisdiction. The idea of ad hoc jurisdiction is that someone like Sulla would assume jurisdiction to resolve an issue at hand with little or no actual authorization. Sulla is known to have acted as a judge during the civil wars, for example, urging litigants to issue vadimonia for appearing in Rome when the city was still in the hands of the Marians.55 According to Millar, Sulla’s formal status in this case was at best that of a proconsul of Asia, and there is no indication of what status he might have held if victorious in the war. The fact that parties approached him and were given rulings was hardly compatible with the Republican tradition of jurisdiction.56 Jurisdiction may be seen as a sign of power, and the fact that Sulla received these requests implies that the legalities of jurisdictional power, just as the precise legal position of Sulla at the time, were of little concern to persons seeking justice. Extraordinary measures that granted jurisdictional powers or enabled extra-judicial punishments were, of course, a regular occurrence in the Late Republic. Hostis declarations, quaestiones extraordinariae, and the senatus consultum ultimum (SCU) were employed in situations of grave political unrest, such as the Bacchanalian affair, the Gracchan riots, and the Catilinarian conspiracy. The legality and legitimacy of these legal acts and the political suppression that they enabled are debatable at best,57 and the figure of the tyrant loomed 55 Livy Per. 86 Sylla cum Italicis populis, ne timeretur ab his uelut erepturus ciuitatem et suffragii ius nuper datum, foedus percussit. Itemque ex fiducia iam certae uictoriae litigatores a quibus adibatur uadimonia Romam deferre iussit, cum a parte diuersa urbs adhuc teneretur. See Millar, Emperor (1992 [1977]), 518–19. Vadimonia (Gai. Inst. 4.184-187) were promissory acts made by the parties to a lawsuit, for example, to reappear in court when the lawsuit was delayed or moved. Their forms, use, and variations are intensely debated, see Donadio, Vadimonium (2011). 56 Millar, Emperor (1992 [1977]), 518. 57 On the SCU, Cic. Cat. 1.4 claims that it authorizes the killing of citizens immediately; Caes. B Civ. 1.5, 1.7; Sall. Cat. 29.3. The hostis declarations were begun by Sulla (Livy Per. 77; Cic. Brut. 45.168; App. B Civ. 1.60), but even Cicero is not consistent in what constituted an offence so grave as to proclaim a citizen as an enemy (Cat. 1.27–8, a conspiracy, while Cic. Rab. Perd. 35, the raising of arms). Nicolet, ‘Dictatorship in Rome’ (2004); von Ungern-Sternberg, Notstandsrecht (1970). On the other extraordinary commands, see Crifò, ‘Senatus consultum ultimum’ (1970), 1–15; Guarino, ‘Senatus Consultum Ultimum’ (1970), 281–94; von Fritz, ‘Emergency Powers’ (1976), 388–406; Lintott, Violence (1968), 149–74. Straumann, Crisis and Constitutionalism (2016), 88–100 maintains that the real meaning of a SCU was most likely the declaration of a state of emergency in the city, while the hostis declaration was applicable generally.

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large in the justifications of actions and counter-actions presented during these years. For example, Sulla justified his own tyranny as a response to the tyrannical actions of the tribunes of the plebs.58 Of course, defining what was regular and what was extraordinary was complicated by the fact that what counted as the constitution of the Roman Republic was a set of traditional practices or mos maiorum, which was malleable and certainly hard to define.59 What may be seen as tyrannical in this context was something that differed from the expected course of action or the common understanding of the generally agreed rules. For example, Cicero himself, when suppressing the Catilinarian conspiracy by executing the conspirators in secret and without trial, could be seen as acting tyrannically by violating provocatio. One may equally trace the roots of extraordinary powers to the SCU against Gaius Gracchus that legalized the use of violence against political opponents who were thought to act tyrannically.60 To return to the pro Ligario, the second model that Cicero offers Caesar is that of a Roman magistrate and judge. Caesar, as a consul and a dictator is, of course, already a Roman magistrate, but one only nominally bound by the laws of the Roman state in the current political and military situation.61 Even here, however, Cicero continues on the theme of Rome as a commonwealth of citizens with shared values and destinies. Cicero maintains that none but Tubero have claimed that Ligarius’ actions were criminal. He admits that blunders were made and acts were committed in fear,62 but argues that both parties in the conflict were good, upstanding Romans, who merely had a disagreement regarding the welfare of the state. Thus the opposing parties were not criminals, but opposing parts of a single commonwealth.63 Cicero recognized the benefits of Caesar’s clemency, which had ensured that App. B Civ. 1.57, 1.59; Wiseman, ‘Roman History’ (2002), 290. See e.g. Kunkel and Wittmann, Staatsordnung und Staatspraxis (1995); Lintott, Constitution (1999); Mouritsen, Plebs and Politics (2001); Hölkeskamp, Rekonstruktionen (2004). Of the legal implications of mos maiorum, see Bleicken, Lex publica (1975). On the malleability of mos maiorum, see Wallace-Hadrill, ‘Mutatio morum’ (1997). 60 See Gaughan, Murder (2010), 110–21 on this much-discussed issue of violence and legality. 61 Cass. Dio (42.20) mentions how he was granted judicial powers that he had already given himself. One could equally ask how much praetors and governors were bound by law or by their own edicts. 62 63 Cic. Lig. 17. Cic. Lig. 19. 58 59

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none but armed men were killed in the fighting.64 Thus Caesar had, despite a civil war, maintained his position as an upstanding member of the commonwealth, and would thus be foolish to waste this capital on a strict interpretation of the laws. One of Cicero’s fantastic rhetorical flourishes is this reference to the long civil war as more a disagreement among gentlemen than series of pitched battles interspersed with bloody purges. If Caesar would act as a strict judge mechanically applying the law, he could choose to convict Ligarius. However, a conviction would at the same time be tantamount to a declaration that the Pompeian opposition was criminal in nature,65 thereby incriminating the accuser, Tubero, as well. Having Ligarius convicted by Caesar because he had denied entry would be ludicrous, because they were also opposing Caesar.66 Some scholars have argued that the roles of judge and benevolent victor are incompatible and that Cicero thus had to plead with both options in mind. Should Caesar be a regular judge, he would find Ligarius guilty, whereas if he is a merciful conqueror, he can forgive the offence.67 This theory would hold only if the opponents in the civil war were legitimate enemies, however, and as Cicero had just framed the conflict as almost a debate between good Roman citizens, I would suggest that a merciful conqueror is the last thing either Cicero or Caesar would propose as a suitable role. What is more likely is that the opposite poles are the strict observance of the law and aequitas, a virtuous quest for the right and equitable solution, which was elsewhere central to the writings of Cicero.68 Caesar should, according to Cicero, strive for justice and equity instead of the letter of the law, because following the law would lead to unbearable results. Thus, the jurisdiction of the self-interested ruler was an exercise in tyranny, the jurisdiction of the magistrate strictly bound by laws was hardly better because justice and equity would be trumped by the letter of the law. These contradictions had a background in the Roman practice of jurisdiction. The exercise of jurisdiction by the Roman magistrates of

64 Cic. Lig. 19 Cognita vero clementia tua, quis non eam victoriam probet, in qua occiderit nemo nisi armatus? 65 66 Gotoff, Companion to Cicero (2002), 246. Cic. Lig. 23. 67 Craig, ‘Cicero's Speech for Ligarius’ (1984), 195. 68 e.g. Cic. Part. or. 37.130; Cic. Top. 4.23.

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the Late Republic was either an activity very strictly bound by formalities, such as the jurisdiction of the praetors in the city of Rome, or the free use of quasi-sovereign power such as that of the Roman governors in the provinces. In Rome proper, regular jurisdiction during the Late Republic rested on the praetor and other Republican magistrates, in an arrangement that is still not fully understood.69 While the consulship was to become one of the main magistracies that early Roman emperors would collect, it was in fact the office of the praetor that contained many of the elements that would later define their jurisdictional capabilities. The praetors, as the main jurisdictional magistrates, not only adjudicated both by themselves and as heads of the quaestiones perpetuae but also defined much of the law with their edicts. Like the consuls, the praetors had military commands and administrative tasks, and as holders of imperium, their powers were quite considerable.70 Whether or not the consuls had jurisdiction of their own, and how that jurisdiction may have overlapped with that of the praetor, are unclear. Something may be deduced from the fact that Cicero mentions the relegation of L. Aelius Lamia (who had defended Cicero in 58 BC) by the consul Gabinius as something completely unprecedented. This shows that consular jurisdiction was not a regular occurrence at this point.71 Sulla’s reforms meant that consuls were to concentrate much more of their time in the administration of Rome itself, but whether or not that included judicial activities is uncertain.72 For the Republican officials, the key component of their formal powers was the military command or imperium. The key jurisdictional magistrates possessed it, but the underlying significance was the coercive power that it entailed. For example, Cicero deplored the powers of the proposed agrarian commission in that they would exercise kingly power (regna omnia) through imperium (Leg. agr. 2.35).

69 Mommsen, Staatsrecht (1871–88), 1:136–69 already lists coercion and jurisdiction as some of the most important powers of Roman magistrates. 70 Brennan, Praetorship (2000). 71 Cic. Fam. 11.16.2. Both Millar, Emperor (1992 [1977]), 519–20 and Pina Polo, Consul at Rome (2011), 122–34 suggest that consular jurisdiction was more widespread than previously believed, but their sources are quite meagre. 72 Hantos, Res publica (1988), 164.

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The Roman provincial governors had very extensive powers of jurisdiction and an almost complete freedom in the way to use it within their provinces.73 Though consuls and praetors, with their combination of military, administrative, and jurisdictional duties, could be seen resembling the later role of the emperor, the influence that these same magistrates enjoyed while appointed as promagistrates in the provinces was even closer to the imperial powers of jurisdiction. While the administration of justice in Rome was constrained by complex procedures and limitations, in the provinces adjudication was dealt with in a very straightforward fashion by provincial governors by virtue of their imperium proconsulare.74 The governors appear to have tried both criminal cases by cognitio and civil cases with some regularity. Valerius Maximus describes how Dolabella, as governor of Asia, referred a criminal case to the council of the Areopagus of Athens, because he was himself unable to reach a decision.75 Diodorus of Sicily reports that Pompey, after he had captured Sicily from the Marians at the age of 24 in 82 BC, concentrated his efforts on the long-neglected administration of justice with a skill and incorruptibility that amazed the provincials.76 It is unclear whether he held any magistracy at the time.77 Quintus Mucius Scaevola Pontifex, a noted jurist, became famous for his incorruptible and exact administration of justice as governor of Asia in 97 BC. His judicial examinations into the abuses of tax-collectors earned him the respect of the provincials, who instituted games in his honour, but angered the tax-collectors, who organized the prosecution of his legate, Rutilius Rufus, in retribution.78 The nearly unfettered power of the governor and the tendency to petition him directly is apparent in the evidence from the Late Republic. Cicero, for instance, mentions that the provincials ventured to meet him regarding their petitions and suits even before he had reached Cilicia in 51 BC.79 The sovereignty of the Roman governor could lead to apparent miscarriages of justice, such as that by Verres 73 Lintott, Imperium Romanum (1993), 65–9. For example, Caesar would travel regularly to administer justice in the southern part of his province during the war in Gallia (Caes. B Gall. 1.54.3; 5.1.5; 5.2.1; 6.44.3). 74 Faro, ‘Consilium del governatore’ (2009), 169–81; Bleicken, ‘Imperium consulare/proconsulare’ (1998); Bringmann, Imperium proconsulare (1977). 75 76 Val. Max. 8.1. amb. 2. Diod. 39.20. 77 Millar, Emperor (1992 [1977]), 517. 78 79 Diod. 37.5. Cic. Att. 5.13.

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during the trial of Sopater.80 Some governors strove to appeal to the sensibilities of provincials, such as P. Licinius Crassus in Asia, who made the effort to learn the different Greek dialects so that he could give rulings from the tribunal in the same dialect as the petitioners had used.81 Cicero himself allowed the Greek cities in the province of Asia use their own laws and courts (Att. 6.2.4). Serving as governors, either as proconsuls or propraetors, gave the Republican nobility ample experience in adjudication and the exercise of nearly unlimited power. The governor as magistrate was thus both sovereign in relation to the provincials and subject to the laws of Rome, and was only liable to prosecution upon his return. In the pro Ligario, the third and final option that Cicero presents for Caesar is that of being a benevolent patriarch. He maintains that he will not plead before Caesar as one would plead before a judge, meaning that he would claim his client is innocent, but as before a father: That is the tone to use to a jury, but I plead before a father: ‘He blundered, he acted thoughtlessly, he is sorry; I throw myself upon your clemency, I crave indulgence for his fault, I implore your pardon.’ Ad iudicem sic, sed ego apud parentem loquor: ‘Erravit, temere fecit, paenitet: ad clementiam tuam confugio, delicti veniam peto, ut ignoscatur oro.’ 82

It has been argued that by claiming to plead before Caesar as a father, Cicero is not questioning Caesar’s legitimacy, but rather the status of the charges against Ligarius as criminal. Thus, the speech would not be a rhetorical deprecatio as traditionally understood, but rather it frames a dilemma that Cicero used to entangle Caesar by making him choose his role: as a judge he must not condemn a man who has not committed a crime, while as a father he must forgive the errant son. If he chooses to be a father, moreover, that would mean positioning himself as a paterfamilias and thus subordinating the whole Roman world to his personal power.83 These mutually exclusive dual arguments are some of the most baffling strategies of the speech, if one approaches it from a formal forensic perspective.84 80 Cic. Verr. II.2.68–75. According to Cicero, Verres retried an innocent man and found him guilty despite exacting a bribe from the accused. Similarly, Cic. Verr. II.1.27, 1.71–6, 2.60–1, and 2.25. 81 82 Val. Max. 8.7.6. Cic. Lig. 30. 83 Johnson, ‘Dilemma’ (2004), 389–92, 397–8. 84 Montague, ‘Advocacy and Politics’ (1992), 572–3.

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I would argue that debating Cicero’s speeches from this formal perspective is rather futile, but another option is possible. It would appear that Cicero is actually arguing on two levels, legal and political, first against the formal legal charges brought against his client, and second on Ligarius’ participation in the political opposition to Caesar. As in a number of other speeches, it is on this underlying political cause that Cicero places the main weight of the argument. While a strict judge may convict on the nominal legal issue, a father has a greater responsibility towards the familia. Thus, Cicero would not, as such, be urging Caesar to extend his patria potestas over all of Rome, but rather the other way around. Because Caesar’s imagined familia consisting of his allies and clients already includes, among others, the brothers of Ligarius, Cicero is here merely suggesting that Caesar should also place Ligarius himself under his protection and accept him into this familia. Of the nominal charges, Cicero implies that it is commonly understood that they are more or less meaningless in the grand scheme of things. The image of the father, which clearly is the option that Cicero would prefer Caesar to choose, is an amalgamation of the positions of paterfamilias and pater patriae, a figure of responsibility and authority, free from the need to follow the letter of the law to concentrate on the public good. There is some similarity here to Cicero’s more widely known ideal princeps, which in De re publica is defined after the model of Pericles, whose rule was one of uninterrupted power and supreme authority within the bounds of a Republican constitution.85 Even if not completely compatible with the omnipotent, wise, and merciful father, the image of the princeps is similarly a figure expressing primarily auctoritas, not executive power. Both are figures referring to the Roman tradition, virtues, and institutions. It has been noted that princeps was, even at this stage, an exceedingly ambiguous concept which held little significance on its own, leaving modern observers to project their interpretations onto the various sources.86 While the Ciceronian idea of the principate was clearly a political concept, it was not a political regime as such. The princeps is a chief whose authority is freely accepted by the people, a leader who does not command but rather advises. Because of the great authority that 85 Cic. Rep. 1.16.25, 4.10.11, De or. 3.138, Off. 2.60; Canfora, ‘Origini del principato’ (2007), 640–2; Girardet, Ordnung (1983); Lehmann, Reformvorschläge (1980). 86 Guizzi, Principato (1971), 2.

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he has gained through virtue and merit, the advice of this optimus civis is naturally followed.87 It should be noted that Cicero’s opinion about sovereign power changed considerably over time. Although Cicero regarded the dictatorship of Sulla as a necessity, justified only because it helped avoid a worse state of affairs, he is more positive on the benefits of the extraordinary powers given to Pompey.88 The insufficiency of the political system justified, even to that old Republican Cicero, a certain admiration for monarchical forms of government.89 After the Ides of March, Cicero’s tone on extraordinary powers became markedly harsher, describing in the Philippics Caesar’s dictatorship as a way of usurping royal power. He thus applauded the decision of Antony to abolish the office of dictator, not simply because of the despotism that had already been endured, but mainly because of the fear of future despotism. The phrase Cicero employs, regni timore, implies both the fear of royal power and tyrannical rule, as if taking them to be indistinguishable.90

THE NATURE OF CAESAR’S JURISDICTION IN PRO LIGARIO Pro Ligario is fascinating in its portrayal of the different models of leadership that Cicero offers to Caesar. However, behind the concepts of tyrant, magistrate, and monarch looms the figure of Sulla, a harrowing reminder to any Roman of Cicero’s and Caesar’s generation of the misuse of unrestrained power. What these options demonstrate is how indeterminate and fluid the understanding regarding the exercise of jurisdiction was at the time. The fact that 87 Cic. Q. Fr. 3.5.1 de optimo statu civitatis et de optimo cive; Magdelain, Auctoritas (1947), 2; Béranger, Principatus (1973), 117–34, criticizes earlier attempts at tracing ideas of the Principate to Cicero. 88 Such as the imperium maius later so important in the imperial framework of power. Vell. Pat. 2.31.2–4; Cic. Verr. II.2.8, 3.213–18. Pompey was something of a blind spot for Cicero; while in the same speech he warns strongly against putting everything in the hands of one man (Leg. Man. 52), later he accepts that Pompey’s career has been one of exception (Leg. Man. 61). See also Cass. Dio 36.31.3–32.1. 89 Cic. Rosc. Am. 139, Leg. Man. 56; Orestano, Potere normativo (1962), 5–6; Rawson, ‘Caesar’s Heritage’ (1975), 158. 90 Cic. Phil. 1.2.4.

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Cicero feels comfortable presenting these hypothetical choices shows how much the sense of normalcy had been undermined and new roles were being sought. The multiple traditions that Cicero refers to were all known and discussed figures in the Roman history of ideas, being, as they were, stock characters common in the ancient world with their ready contexts. That Cicero evokes these characters in the articulation of Caesar’s jurisdiction is interesting, as it demonstrates the ideological background and historical memory that influenced the conceptualization of the jurisdiction of rulers in Rome before the introduction of imperial rule. In pro Ligario, Cicero shows how the actions of Caesar were, from a contemporary perspective, experiments on an ad hoc basis. We may say that he was driven by political expediency and the need to punish his opponents or that he wanted a show trial to publicize his clemency. These questions, just like the controversy as to whether his jurisdiction was formal, regular, or usurped ad hoc, are ultimately futile. He was most likely asked by the Tuberos to punish Ligarius and obliged them as a favour, just like he would have done on campaign or as governor. The purely constitutional argument of disputing the jurisdiction of the dictator, even if it could have been made or have mattered, was clearly not what Cicero had in mind. The issue was what kind of man Caesar wanted to be and how he would like to be remembered. Although most modern observers acknowledge how well Cicero manages to combine his independent republicanism with the courteousness of the courtier,91 contradictory arguments have been presented about the motives of Cicero and Caesar and the advantages they derived from the trial.92 Some say the trial and the speech were a low point in Cicero’s life, with his dignity compromised by the praise given to Caesar, while others maintain that the outcome was generally positive.93 One possible reason for this discrepancy is that modern observers have a clear tendency to look at the speech through the Republican mindset, and fairly harshly maintain that Cicero had betrayed his principles, while ancient sources generally approached the speech situationally. 91

MacKendrick, Speeches of Cicero (1995), 438; Drumann, Geschichte Roms (1899–1929), 3:708. 92 Johnson, ‘Dilemma’ (2004), 380. 93 Johnson, ‘Dilemma’ (2004), 374; Montague, ‘Advocacy and Politics’ (1992).

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When asked to speak, Cicero was trying to simultaneously navigate the new political situation and concentrate on his writings. His relationship with Caesar was, to say the least, problematic. For example, Lintott writes that Cicero wished to find ‘an acceptable position for himself in relation to Caesar’, and found pleading with Caesar humiliating.94 Some scholars have accused Cicero of displaying incomprehensible blindness and naivety about Caesar’s political aims by agreeing to take part in the trial at all.95 However, considering Cicero’s political realism, the credibility of such judgment is rather weak.96 It has also been argued that by the time of the trial, Cicero had accepted the political situation and would not have wished to see Pompeians return to power and institute a new round of retributions.97 Caesar himself (according to Sallust) had earlier noted how dangerous Sulla’s proscriptions were, because they loosened the restraints against killing fellow citizens: But that was the beginning of great bloodshed; for whenever anyone coveted a man’s house in town or country, or at last even his goods or his garment, he contrived to have him enrolled among the proscribed. Thus those who had exulted in the death of Damasippus were themselves before long hurried off to execution, and the massacre did not end until Sulla glutted all his followers with riches. Sed ea res magnae initium cladis fuit; nam uti quisque domum aut villam, postremo vas aut vestimentum alicuius concupiverat, dabat operam ut is in proscriptorum numero esset. Ita illi quibus Damasippi mors laetitiae fuerat paulo post ipsi trahebantur, neque prius finis iugulandi fuit quam Sulla omnis suos divitiis explevit.98

Caesar could pardon Ligarius to gain political support from Ligarius’ friends and advertise his policy of clementia. The lengthiest portion of the speech is devoted to precisely this effect. If pardoned, not only Ligarius but also his influential brothers and their associates would be Caesar’s staunchest supporters.99 In fact, what Cicero is outlining here is a political bargain, which is vital to all aspirants to single

94

Lintott, Cicero as Evidence (2008), 314–15, 320–1. Walser, ‘Prozess des Ligarius’ (1959), 96. 96 Heuss, ‘Cicero’s Theorie’ (1975), 271: ‘kein illusionistischer Kindskopf ’. 97 Kumaniecki, ‘Prozess des Ligarius’ (1967), 456. 98 Sall. Cat. 51.33–4. Tr. Rolfe. 99 Cic. Lig. 31–8; Johnson, ‘Dilemma’ (2004), 377; May, Trials (1988), 148; Gotoff, Companion to Cicero (2002), 250. 95

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rule: gaining a power-base through favours. Of course, Cicero does present clementia as a central part of Caesar’s policy, though elsewhere in private correspondence he suspects that Caesar’s taking these actions is not due to his good nature, humanism, and love of peace, but rather as a more calculated way of establishing his power through debts of gratitude.100 For the ‘new friends’ of Caesar, the people who had accepted his clementia, this was both a moral and political crisis, since the debt would be so overwhelming and the enforced bond of friendship so tight that there was no possibility of repayment or release.101 The official setting of the speech has also raised suspicions regarding the validity of the trial, with some claiming that the trial was not a trial at all, but rather a public hearing designed to assist Caesar in making his sovereign decision on the matter. The main argument for such a theory holds that although Caesar had legal backing for exercising adjudicative power, the whole process was so far removed from any regular court procedure that it should not be elevated to the level of a trial, any more than Sulla’s decisions over the life and death of his opponents.102 What this formalistic view overlooks is that what took place was nevertheless a public judicial hearing by a competent Roman magistrate, in which speeches were made by an accuser and a defender. While it may be argued that comparisons with it should not be sought from any regular trials but rather from the later imperial hearings of conspirators and political opponents,103 the discussion is quite revealing on what counts as a trial and how the conceptions of normality would be rewritten during the early Principate. If Cicero had qualms about the legitimacy of the trial, he kept them to himself. Furthermore, the combination of regular jurisdiction and political expediency was also typical of the imperial exercise of jurisdiction in the years to come. The role of Caesar as judge is, in this case, exceedingly complicated, beginning with the issue of why he is judge in the first place. As dictator, Caesar held supreme executive and military power, although despite being supreme judge probably unconstricted by provocatio, it 100

Cic. Att. 9.7c, 9.16; Rochlitz, Bild Caesars (1993), 50–1, 125–9. See e.g. Tatum, Caesar (2008), 153–4. 102 Bringmann, ‘Caesar als Richter’ (1986), 79, 87, using the arguments already presented by Lang, is not convincing in light of Bauman, Crimen Maiestatis (1967), 146–7. 103 Millar, Emperor (1992 [1977]), 520 called them ‘jurisdiction (or something roughly resembling it)’. 101

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is unclear what the powers of dictator actually meant. There had, after all, been no dictators since the Hannibalic wars except Sulla, and the annalistic tradition of the dictatorship mostly concerned military matters.104 It may thus be safe to assume that precedent provided little guidance for how a dictator was to adjudicate, and had Caesar preferred to not take the case, he could have referred it to the regular courts. Cicero pointedly does not once mention in which official role Caesar adjudicates, but instead urges him to rise above the role of magistrate and think of himself as a father. Theories about the motives of Cicero and Caesar are, of course, pure speculation. According to Plutarch, Ligarius was a villain. Caesar, therefore, permitted Cicero to appear on Ligarius’ behalf simply because he wanted to hear Cicero speak after such a long time. Cicero’s speech moved the audience to tears with its pathos and emotions, leaving Caesar no other choice than to acquit the accused.105 Contrary to what Plutarch says, Caesar naturally could have convicted Ligarius if necessary. Most modern observers are less optimistic about the power of oratory and maintain that the trial and its outcome were surely predetermined by Caesar, who was under no obligation to bring the case to open trial in the first place.106 The argument about the predeterminacy of the trial’s result is, upon closer examination, unconvincing. Caesar could, of course, do as he wanted, but that does not necessarily mean that he had made up his mind. What is certain is that there was some pressure on Caesar to put Ligarius on trial, either from the Tuberos or from someone else using them as a front. Caesar acquiesced to the trial, but as the case started to appear strange, his enthusiasm vanished. It is quite possible that Caesar used the trial to gauge the public mood in a fairly tense political situation. Politically, Caesar’s main aim was most likely to appease the former supporters of Pompey, so that convicting a fairly minor figure already in exile, while at the same time declaring that being a supporter of Pompey was criminal, would not have achieved the desired result. That the facts surrounding pro Ligario are unclear, even strange, does not make it stand out among Cicero’s Caesarian speeches. His de Wilde, ‘Dictator's Trust’ (2012), 555–77, but see Lintott, Constitution (1999), 111. 105 Plut. Vit. Cic. 39.5–6. 106 See e.g. Gotoff, Companion to Cicero (2002), 237. 104

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speech for King Deiotarus of Galatia in November 45 BC has been called ‘the most baffling of Cicero’s speeches’.107 What makes the speech interesting for the current inquiry is that it was given in Caesar’s home, with Caesar as its only audience. It is thus a forerunner of the trials held in camera by later emperors that emphasized the centrality of the ruler in the course of justice. For Cicero, this development is unprecedented, and he laments for a lengthy portion of the speech the lack of support from the audience and how the setting limits his oratory.108 Beyond that, the speech descends rapidly into a satire. The only mentioned prosecutors are Deiotarus’ son-in-law and his slave, who accuse Deiotarus of attempting to poison Caesar while he was his guest in Galatia. Cicero’s praise for Caesar and his depiction of the laughable charges have been rightly described as ‘burlesque’, aimed at amusing Caesar rather than dealing with them seriously.109 The fact that the trial of Deiotarus took place in the home of Caesar, or that the brothers of Ligarius and Cicero went there to plead to him before the trial, was not uncommon in itself. Both the private house and the forum were established loci for trials, but for a trial of this magnitude taking place in seclusion was highly unusual. Cicero himself delves at length into the exceptionality of the situation: The unwonted scene of this trial, too, is not without its effect upon me: a case of graver import than any that have ever come under discussion is being pleaded by me within the walls of a private dwelling, pleaded in private session and aloof from the thronging audience wherein the enthusiasm of the orator commonly finds its support; under your eyes and in your features I find my repose; you are all I have to look to; my every word has regard to none save you; the same circumstances which afford me the strongest hope of establishing the truth, are less adapted to move the emotions and to rouse the fire and fervour of eloquence. Were I pleading this case in the Forum, Gaius Caesar, albeit with you to 107

108 Gotoff, Companion to Cicero (2002), 251. Cic. Deiot. 5–7. Gotoff, Companion to Cicero (2002), 257–60. The background of the case is problematic. Long a Roman ally, Deiotarus had fought as Pompey’s client on his side and lost some lands as a consequence. He had petitioned Caesar a number of times to regain them, but without success. Why the accusation was presented is hard to say. The original accuser was Castor, whose father’s tetrarchy had been taken by Deiotarus, but as a foreigner Castor could not act as the official accuser. It is possible that Caesar wanted to settle matters in the East in anticipation of the campaign against Parthia, but how this would have accomplished it is unclear. There was no verdict in the case. 109

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hear and you to weigh my words, with what enthusiasm would the assembled people of Rome inspire me! What citizen would not feel kindly towards a king, remembering that his whole life had been devoted to waging the wars of the Roman people! I should have the Senate house in my view, the Forum beneath my gaze, and heaven itself would stand arbiter above. In such surroundings, recalling the kindnesses of the immortal gods and of the people and Senate of Rome to King Deiotarus, it would be impossible for my speech to falter. Moveor etiam loci ipsius insolentia, quod tantam causam, quanta nulla umquam in disceptatione versata est, dico intra domesticos parietes, dico extra conventum et eam frequentiam, in qua oratorum studia niti solent: in tuis oculis, in tuo ore voltuque acquiesco, te unum intueor, ad te unum omnis mea spectat oratio: quae mihi ad spem obtinendae veritatis gravissima sunt, ad motum animi et ad omnem impetum dicendi contentionemque leviora: hanc enim, C. Caesar, causam si in foro dicerem eodem audiente et disceptante te, quantam mihi alacritatem populi Romani concursus adferret! Quis enim civis ei regi non faveret, cuius omnem aetatem in populi Romani bellis consumptam esse meminisset? Spectarem curiam, intuerer forum, caelum denique testarer ipsum. Sic, cum et deorum immortalium et populi Romani et senatus beneficia in regem Deiotarum recordarer, nullo modo mihi deesse posset oratio.110

Recent scholarship has convincingly demonstrated how trials could and did take place in private homes.111 There were many different scenarios where this could happen, ranging from the exercise of jurisdiction by the paterfamilias among members of the household or the arrangement of the second part of the trial after the praetor had given his say on the matter and appointed the iudex. As is well known, the houses of the upper classes were spaces where public and private spheres met and where it was customary that access could be granted freely to visitors.112 However, Caesar was not living in his own house, which, based on the sources, appears to have been a relatively modest dwelling in the Suburra neighbourhood, but rather the domus publica on the Via Sacra (see Fig. 1.2), the official residence of the pontifex maximus (Suet. Iul. 46). The domus publica was an old atrium house that was expanded by adding a cryptoporticus during the Late Republic, following the building fashion of the time.113 110 111 112 113

Cic. Deiot. 2.5–6. Tr. Watts. Bablitz, ‘Bringing the Law Home’ (2015); Perry, ‘Paterfamilias’ (2015). Vitr. 6.5.1–2, but Wallace-Hadrill, Houses and Society (1994). De Angelis, ‘The Emperor’s Justice’ (2010), 130.

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Fig. 1.2. Domus publica. Hypothetical reconstruction by Juhana Heikonen.

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The real grievance that Cicero has about the case was not that it was held in a private house, but the lack of audience.114 Trials were supposed to be held publicly, and even in matters where the jurisdiction was private, it was thought that to be perceived just a matter should be deliberated in public. The importance of publicity and accessibility continued through the political and legal culture; for a Roman in public service in the Late Republic such as Cicero it was considered to be of utmost importance that their actions, including those taking place in their homes, were visible and observable to the public. Like the emperors, the political elite were as if on stage, visible to all, and secrecy would prompt suspicion.115

HELLENISTIC KING OR REPUBLICAN MAGISTRATE? The images of Caesar as judge formulated by Cicero in pro Ligario were significant in the conception of what the Roman emperor would later be, because Cicero defines much of the debate over Caesar. An illuminating example is the contrast between the image of Caesar as a diligent Republican magistrate and Caesar as a usurper who aims to assume the mantle of divine kingship, both of which have their foundations in the writings of Cicero.116 These two narratives take very different paths in later Roman literature. The story of the diligent judge-magistrate taking an active interest in the advancement of the law gradually evolved into the historical depiction of Caesar the judge as a Roman emperor, while the latter characterization, as seen through the works of Plutarch, Suetonius, and Dio, grew into a story of the failed pursuit of divine honours and kingship. This story would ultimately emerge as the chief explanation for his murder. The significance of this divergence of narratives is central in the formation of the jurisdictional powers of the emperor, because of the difference in the nature of jurisdiction of a magistrate and that of a As rightly noted by De Angelis, ‘The Emperor’s Justice’ (2010), 131. On the visibility of actions in a private house, see Cic. Dom. 37.100; Vell. Pat. 2.14.3. On the importance of visibility to the emperor, see Fertik, ‘Privacy and Power’ (2015). 116 Rawson, ‘Caesar’s Heritage’ (1975), 149. 114 115

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sovereign. The increasingly sovereign way in which the Caesar of these narratives exercises his jurisdiction reflects the change in the image of Caesar from a Republican magistrate to a Roman emperor. The narrative of Caesar supplies precedent for the subsequent imperial jurisdiction. The first narrative, that of Caesar as an administrator and judge intimately involved in the administration and advancement of law, should be scrutinized both synchronically and diachronically. There is a long-standing controversy over the reform plans of Caesar and what he had in mind for the Roman state at the time of his death.117 In relation to law, Caesar is an enigmatic figure, made more complex by the subsequent development of his image in Roman historical writing. In the contemporary accounts, most notably Cicero, he is said to have acted as judge while governor and dictator in accordance with Roman traditions. However, in the later historical tradition Caesar is said to have regularly adjudicated in the manner of an emperor. A similar augmentation may be noted in the realm of legislative activity, where Cicero mentions only some, such as Caesar’s lex de urbe augenda of 45 BC,118 while Suetonius, and to a lesser degree Plutarch and Dio, credit him with a veritable legislative programme.119 Caesar is recorded as having acted as a judge and legislator in the provinces both during and after the civil war.120 In pro Balbo, Cicero praises Caesar’s actions as governor of Spain in 61 BC. Caesar had settled disputes, established laws with the consent of the people, and stamped out certain barbarian customs.121 In the commentary on the Alexandrian war, ascribed to Caesar, he is shown demonstrating a vivid interest in organizing the provinces through which he passed, holding inquiries, and settling old disputes.122 Before Suetonius there are very few accounts of Caesar adjudicating in Rome, aside from the Caesarian speeches of Cicero. Moreover, the cases that are in any way informative are also anecdotal and thus devoid of any precise information on the nature of Caesar’s jurisdiction. Valerius Maximus recounts how Servius Galba openly

117 118 119 120 121

Jehne, Staat (1987); Meyer, Caesars Monarchie (1974). Cic. Att. 13.33a. He also mentions lex Julia repetundarum in In Pisonem 21.50. Donati, ‘Cesare e il diritto’ (2008), 38–41. Millar, Emperor (1992 [1977]), 518–19. 122 Cic. Balb. 43. Caes. B Alex. 65.4.

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challenged Caesar during a trial at which he was a judge at the Forum. The incident took place after Caesar had achieved complete victory (consummatis victoriis), suggesting a date sometime after the spring of 45 BC. As usual, no information is given as to under what authority Caesar exercised jurisdiction, though he was dictator at the time. Galba announced that he had pledged money for Pompey, Caesar’s former son-in-law, and as he is now being called upon for the amount, he asks for advice on the correct course of action. Despite this direct reference to both the failed alliance with Pompey and the later sale of Pompey’s property, Caesar simply ordered the debt to be paid from his own money.123 In the second example, Seneca refers to a case of Caesar adjudicating a dispute between neighbours, and upon recognizing the defendant as one of his veterans, resolving the case in his favour.124 In the depiction of Suetonius, Caesar becomes invested with the powers of a Roman emperor, a sovereign ruler with powers to adjudicate and legislate. Suetonius describes Caesar generically as a diligent and strict judge: He administered justice with the utmost conscientiousness and strictness. Those convicted of extortion he even dismissed from the senatorial order. He annulled the marriage of an ex-praetor, who had married a woman the very day after her divorce, although there was no suspicion of adultery. Ius laboriosissime ac severissime dixit. repetundarum conuictos etiam ordine senatorio movit. diremit nuptias praetorii uiri, qui digressam a marito post biduum statim duxerat, quamuis sine probri suspicione.125

According to Suetonius, Caesar was also tough on crime: He increased the penalties for crimes; and inasmuch as the rich involved themselves in guilt with less hesitation because they merely suffered exile, without any loss of property, he punished murderers of freemen by the confiscation of all their goods, as Cicero writes, and others by the loss of one-half. Poenas facinorum auxit; et cum locupletes eo facilius scelere se obligarent, quod integris patrimoniis exulabant, parricidas, ut Cicero scribit, bonis omnibus, reliquos dimidia parte multavit.126

123 125

Val. Max. 6.2.11. Suet. Iul. 43. Tr. Rolfe.

124

Sen. Ben. 5.24. 126 Suet. Iul. 42.

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To round up the legal reforms, Suetonius has Caesar embark on a codification project, of which nothing further is known: to reduce the civil code to fixed limits, and of the vast and prolix mass of statutes to include only the best and most essential in a limited number of volumes . . . ius ciuile ad certum modum redigere atque ex immensa diffusaque legum copia optima quaeque et necessaria in paucissimos conferre libros.127

To be fair, this is just one of the many unfinished projects that Suetonius mentions, including vast building projects and military conquests. As the positive qualities of Caesar the judge are similar to the ones ascribed to Trajan and Hadrian, one is inclined to consider Suetonius’ description of the codification project as being influenced by Hadrian’s codification of the praetor’s edict, the edictum perpetuum. A further similarity to later emperors is the allusion to the word of the emperor having the force of law: Suetonius states that Caesar, in his growing arrogance, said that people should hold his word (dicta) as law.128 The second narrative, that Caesar would have wanted to become a divine king like the Hellenistic rulers, is also attributable to Cicero and repeated in a long scholarly tradition. In his writings, Cicero repeatedly implies and hints at Caesar’s willingness to play with royal attributes and divine honours. In the Philippics, Cicero uses that to taint Antony by association in a description of a scene at the feast of the Lupercalia just after Caesar had been made dictator in perpetuo: Your colleague [Caesar] was seated on the rostra, clad in a purple gown, on a golden chair, with a wreath. You rise up, you approach the chair (if you were Lupercus, yet you should have remembered you were consul too), you display a diadem. There is a groan all over the Forum. Whence came the diadem? . . . You persisted in putting it on his head amid the lamentations of the people; he amid their applause persisted in rejecting it. You then, traitor, were discovered to be the one who, while establishing a tyranny and willing to have your colleague as your master, was at the same time making trial of what the Roman people could bear and endure. Sedebat in rostris conlega tuus amictus toga purpurea in sella aurea coronatus. Escendis, accedis ad sellam (ita eras Lupercus, ut te consulem esse meminisse deberes), diadema ostendis. Gemitus toto foro. Unde diadema? . . . Tu diadema inponebas cum plangore populi, ille cum 127

Suet. Iul. 44.

128

Suet. Iul. 77 pro legibus habere quae dicat.

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plausu reiciebat. Tu ergo unus, scelerate, inventus es, qui cum auctor regni esse eumque, quem collegam habebas, dominum habere velles, idem temptares, quid populus Romanus ferre et pati posset.129

While it is clear from the speech that what Caesar was aiming at was the honour of refusal, being offered the kingship by the people and refusing it, Cicero uses the occasion to accuse both Caesar and Antony of attempting to foist the tyranny of kingship upon the Romans. This refusal, which Cicero himself describes as being inscribed in the Fasti, was of course not the unprecedented event that he implies it was. Refusing honours was a typical way of implying that someone was worthy of an honour, even though accepting it would be gauche. As we will see in Chapter 2, the art of refusing honours was perfected by Augustus. What is different in Cicero’s description, however, are the hints that there was a hidden agenda, a deeper purpose of testing the waters for the real thing.130 What Cicero is here implying had actually a very violent undertone. According to Plutarch, the killing of Tiberius Gracchus was prompted by a misinterpreted gesture where he pointed to his head. While he had sought to convey that he believed his life was in danger, his senatorial opponents interpreted it as a sign that he wanted a royal crown.131 Later in the same speech, Cicero mentions the similarity of divine honours given to Caesar and those accorded to major gods like Jupiter, Mars, or Quirinus: the pulvinar, the fastigium, and finally, the flamen, who would be Antony.132 Since the Philippics were written after the Ides of March, Cicero is not saying that Caesar would have aimed at divine honours during his lifetime. The interpretation made by later authors, however, was just that. The later significance of this narrative to the development of imperial jurisdiction was profound, because it emphasized the extraordinariness and sovereignty of the ruler. While the first narrative of Caesar as the judge-magistrate initiating legal reforms corresponded 129

Cic. Phil. 2.34.85. Tr. Ker, Cicero (1926), with slight modifications. The sinister undertones of Cicero’s vehement attack on Antony have largely set the tone for both the Roman and the modern debate over whether Caesar was actually seeking kingship. On the debate, and Cicero’s rather ambiguous attitude towards kingship in general, see Rawson, ‘Caesar’s Heritage’ (1975). 131 Plut. Vit. Ti. Gracch. 19. 132 Cic. Phil. 2.43.110, Quem is honorem maiorem consecutus erat, quam ut haberet pulvinar, simulacrum, fastigium, flaminem? Est ergo flamen, ut Iovi, ut Marti, ut Quirino, sic divo Iulio M. Antonius. 130

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to the practicalities of the legal role of later emperors, the narrative of the divine king provided the ideological foundation of imperial jurisdiction already formulated by Seneca.133 Oversized honours and visibility granted to one person was a feature of the Late Republic, where already the dictator Sulla was honoured with more statues in Rome than anybody else, while Pompey’s building project surpassed everything before him.134 As Cicero’s Philippics demonstrate, the utility of the language of sovereignty and tyranny continued unabated in the Late Republic. Sallust, among others, writing a few years after Caesar’s murder, describes the power of the patricians over plebeians as tyrannical because the patricians disposed of them and their property like kings wielding supreme power.135 While interest in decidedly non-republican honours was not rare in the later Republic, especially among Romans operating in the eastern parts of the Empire, such interest has gained an importance of a different magnitude in the case of Caesar, due to his subsequent murder and the fact that Cicero mentions such honours repeatedly. In addition to Cicero, Suetonius’ depiction of the hostile popular reaction to rumours that Caesar was seeking to install himself as king and accrue divine honours has formed the basis of the argument that he was indeed seeking divine kingship. Suetonius is quite clearly following Cicero in his depiction of the Lupercalia episode, but unlike Cicero, he explicitly mentions the divine honours granted during Caesar’s lifetime.136 It is clear that Caesar was seen as something apart from the other warlords of the Late Republic. Cicero does mention that, for example, Sulla held the power of a king, but says nothing of an ambition to become one.137 According to Eduard Meyer, while Pompey’s position 133

Stacey, Roman Monarchy (2007). Eck, ‘Public space’ (2010), 90. 135 Sall. Hist. 1.11; Wiseman, ‘Roman history’ (2002), 295. Of course, Augustus in the Res gestae 1.1 would mention how he, as a private person, raised an army at his own expense to rid the state of the tyranny of a clique. 136 Suet. Iul. 76, 79. 137 Cic. Har. resp. 54, Idem iterum Sulla superavit; tum sine dubio habuit regalem potestatem, quamquam rem publicam reciperarat. There were a number of other allegations regarding previous suspected usurpers, such as Tiberius Gracchus or Saturninus toying with regal insignia, but Rawson, ‘Caesar’s Heritage’ (1975), 157 suspects that those accounts may have been affected by what was then known of Caesar. 134

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was more like Augustus’, a princeps ruling with the support of the Senate, Caesar aspired to be a divine king and a ruler of the world, a Hellenistic monarch in imitation of Alexander.138 Even Pompey had, of course, been given divine honours in the East after the war with Mithridates. However, this often-presented argument that Caesar sought some variant of Hellenistic kingship is misleading, not least because it assumes that such a Hellenistic king would have been all-powerful. It is true that Hellenistic kingship and the example of Alexander were powerful arguments in the Roman debate over single rule.139 However, though Alexander’s military command involved punishing mutineers and other acts among his troops,140 the legal situation was normally based on legal pluralism, the legal autonomy of cities, and, in many cases, population groups in the Hellenistic kingdoms. The nominal hegemony of the king was recognized following Philip II’s Common Peace of 337 BC,141 and from Alexander onwards, the centrality of the king and his sovereignty (and divinity) were essential, but interpreted differently in various regions. In Asia Minor, for example, local communities and elites had almost complete autonomy as long as they recognized the overlordship of the king, whereas in Egypt, where the government took a much more active interest in the administration of justice, there existed a hierarchy of courts for both Greeks and Egyptians. In practice, as Greeks and Egyptians were governed according to their own traditional laws and the kings put their sovereign legislative power to use very rarely, the government was content to take the route of least resistance. A similar tendency toward legal autonomy appears to have been the case elsewhere, as, for instance, Greek cities under Parthian rule were able to apply their own laws.142 Though many Hellenistic states preferred to leave jurisdiction in the hands of individual communities such as cities, the ruler still had the last word. A famous example is the restoration of exiles to Greek cities in 324 BC by Alexander, whose message, preserved in Diodorus,

138 Meyer sought to correct the overtly positive image of Caesar that he felt was perverted by Mommsen. Meyer, Caesars Monarchie (1919), 463, 472–3, 508–27. 139 See Kalyvas, ‘Tyranny of Dictatorship’ (2007), 412–42. 140 141 See e.g. Diod. 17.109.2–3. Worthington, Philip II (2008), 161. 142 Jouguet, Alexander (1978), 75, 312–15, 363, 375, 395. Cassayre, Justice (2010), 121–2 notes how the king’s jurisdiction was often on appeal.

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was read at the Olympic games. Alexander ordered that all exiles were to be allowed to return, unless they had been guilty of sacrilege or murder. Alexander further makes it clear that he will, if necessary, authorize the use of coercion should the cities resist the restoration, as, for example, the Athenians did.143 Quintus Curtius, moreover, notes that the Athenian resistance stemmed from the fact that they were used to being directed by their own laws and customs, not the dictates of a king.144 In contrast to the practical administration of Hellenistic kingdoms, there is a long Hellenistic tradition of political philosophy which focuses on the figure of an ideal monarch, who is not only the source of law, but also a god and living law. The virtue of the king must be perfect, just as the king must be governed by the law within him.145 It is perhaps this tradition, instead of the actual practices of the Hellenistic kingdoms, to which the claims about Caesar refer. Instead of a Hellenistic divine king, the description of a Greek tyrant, who was often an accomplished military leader enjoying popular support, would better fit Caesar. Earlier scholars have gone as far as seeing in Caesar a true tyrant in the Aristotelian sense, a strong leader supported by the poor in a class struggle against the aristocracy.146 While Marxist readings of the Late Republic have since gone out of fashion, Caesar generated a number of policies that correspond with the image of a popular tyrant. He cultivated the plebs of Rome, and one of his most valuable assets was his image as a friend of the people, which none of his contenders could or would match. Caesar’s cult, which had a considerable grass-roots following, was founded on this perceived affinity with the people. This popular support further accounted for the futility of the conspirators in calling Caesar a tyrant when addressing the people after the Ides of March. Caesar also understood the essentiality of tribunicia potestas in effectively ruling Rome, a lesson that was not lost on Octavian.147

143

144 Diod. 17.109.1, 18.8.2–7. Curt. 10.2.4–7. Xen. Cyr. 8.1.22; Goodenough, ‘Hellenistic Kingship’ (1928), 55–102; Martens, One God (2003), 31–7. 146 Yavetz, Plebs and Princeps (1988), 44–5, 53–6, 62–6, 69. 147 See e.g. Yavetz, Caesar (1983). 145

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PETITIONS AND GIFTS AS MODELS FOR ADJUDICATION Making petitions and requests to patrons or in general to persons in a position of power was a central part of the social fabric of Roman society. The mechanisms of petition and response were ways in which people not only operated in the society but also how they perpetuated the social order. For example, the custom of salutatio as a defining feature of Roman society involved both the mutual bond of cooperation as well as the recognition of a position of power and patronage that was reinforced with gifts and aid.148 The making of petitions and the giving of gifts was thus a process with many connotations. In pro Ligario, Cicero praises Caesar’s leniency and mild conduct during the struggle with Pompey.149 Elsewhere, he mentions how Caesar welcomed and pardoned former Pompeians, but discusses these pardons with a hint of bitterness. In order to receive a pardon, one had to petition Caesar and ask for forgiveness.150 Innumerable former (and future) enemies, including Cicero himself, were forced to plead for their lives and freedom in return for allegiance. While it would be inaccurate to describe the pardoning of enemies as a legal process, it strengthened the tendency to plead with and petition the powers that be. The process of directly petitioning a ruler and thus circumventing criminal proceedings, with its questions of guilt and innocence, can of course be seen to occur nearly everywhere. The fact that Cicero, in the defence of Ligarius, essentially opts to ask for pardon instead of arguing for innocence could be seen as indicative of future imperial jurisdiction, when the irregular process of petitioning the ruler, regardless of rules of procedure, would change the very concepts of law and justice. The legal aftermaths of civil wars are seldom known for their fairness,151 and Rome was no exception. The fact that Ligarius even ended up being subjected to a court procedure was in itself something of an anomaly, extra-judicial executions and various kangaroo courts

148

149 Goldbeck, Salutationes (2010). Cic. Lig. 18, 29–30. Cic. Fam. 6.6.10, 9.9.3, 13.19, 13.29. 151 The common thread in the vast scholarship on the legal aftermaths of modern civil wars, such as the Spanish Civil War, is that only the losing side ends up being prosecuted. Payne, Civil War in Europe (2011); Kekkonen, ‘Judicial Repression’ (2012). 150

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being the faster and simpler solution.152 Even if a trial was organized, as in this case, the political nature of the process was quite obvious, with each side considering itself the legal government and the other as the criminal rebels committing maiestas or perduellio. The extralegality, quasi-legality, or illegality in the punishment of enemies, not to mention the whole period with its civil wars and proscriptions, made petitions by friends of the accused very important.153 Since all (regular) legal recourse was more or less futile, what was left was to plead. This process can be seen as an example of a gift exchange, in which Caesar and his former enemies traded lives for allegiance. Similarly, allowing his soldiers to spare lives of captives could be seen as giving them the gift of saving their friends or relatives on the Pompeian side. When Cicero writes to Atticus in August 47 BC about the distribution of Caesar’s lordly gifts, namely the pardons given to former Pompeians, he also remarked rather acidly that these gifts of life and liberty are in Caesar’s power to revoke, should he consider it necessary.154 Thus, the pardoned men were receiving what more closely resembled a precarious lease on life. According to Roller, because Caesar’s policy of clementia was seen as the giving of gifts, the assassins, including Ligarius, were portrayed as ingrates who received the gift of life from Caesar and failed to reciprocate. However, with his clemency, Caesar also imposed a gift-debt over those he pardoned, in a sense binding them to him because such a gift could never be repaid.155 A gift that was too large and asymmetrical bred hostility instead of gratitude, and the wide distribution weakened the bond created even further. The clemency of Caesar was, however, a successful policy in terms of historical legacy.156 Plutarch’s account praises Caesar’s leniency towards Pompeians in Egypt after Pompey had been killed: they were treated with kindness and became attached to him.157 Dio offers a more detailed account, according to which Caesar assumed the habit of simultaneously subjecting some of his opponents to public trials and putting others to death secretly. Many of those who surrendered 152 Even Sulla, the champion of outward legality, did not bother to explain the execution of 6,000 Roman prisoners of war. Plut. Vit. Sull. 30. 153 154 Millar, Emperor (1992 [1977]), 520. Cic. Att. 11.20. 155 Roller, Constructing Autocracy (2001), 173–93; Tatum, Caesar (2008). 156 As was already argued in Dahlman, ‘Clementia Caesaris’ (1934), 20, 25. 157 Plut. Vit. Caes. 48.1.65.

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to him freely were spared, while those who were captured fighting again after a pardon were regularly put to death. Caesar also allowed each of his soldiers to save the life of one man, and some were also saved by petitions from his friends.158 Petitioning rulers has its own peculiar dynamics, in which the petitioner recognizes the power and authority of the ruler, while the ruler is tempted to oblige by showing his benevolence and power. Petitions were often made at public receptions, making them representations of power relations. The fact that holding a reception was such a sign of power and authority is shown by the story, recounted by Valerius Maximus, of a man pretending to be Marius’ grandson. This impostor, named Herophilus, claimed that Marius was his grandfather and managed to convince veteran colonies, municipalities, and almost all of the collegia of this. When Caesar returned from Spain and was receiving the people at his hortus, this impostor held his own reception nearby. As a result, Caesar relegated him from Italy, but when he dared to return and resume his activities after Caesar’s murder, he was put to death.159 What the ceremonial petition of Ligarius’ brothers and Cicero at the home of Caesar entailed was equally the recognition of his power and authority in this case. The granting of honours and gifts was, of course, not purely a process of top-down influence. It has increasingly been recognized that praise and gifts were also used to influence leaders. For example, a much-discussed aspect of Caesar’s status was the escalating number of honours that the Senate bestowed on him. These honours were distributed in three phases, the first of which occurred after the battle of Thapsus in 46, when the Senate ordered that a chariot and a statue of him be erected at the Capitolium. In the second phase, after the battle of Munda, a statue with an inscription declaring Caesar an unconquered god was placed in the temple of Quirinus. Lastly, some time before his murder, he was said to have been declared Divus Iulius, a state divinity with a flamen, temple, and pulvinar for his image. While it has been suggested that behind these honours was an agenda of Caesar’s, Gradel claims that the purpose of these honours was not only to show reverence, but also to tie the honoured person down, obliging him to return the favour either with benefactions or 158 Cass. Dio 41.62, 43.12–13; Millar, Emperor (1992 [1977]), 520; Volkmann, Rechtsprechung (1969 [1935]), 14–24. 159 Val. Max. 9.15.

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by ruling well.160 It is equally possible that some of these honours were used to demonstrate to the people the true nature of Caesar’s aspirations. As such, linking the honours that were given to Caesar with those given to this or that Hellenistic monarch or divinity would be misleading. Though the reliability of the later accounts regarding the various honours offered to Caesar is debatable, especially with regard to the divine honours,161 which Cicero does not mention during Caesar’s lifetime, the basic argument is sound. There is a sense of irony that Caesar was killed by the same men who voted for these extraordinary honours. Even Ligarius later joined Caesar’s assassins and was killed in the proscriptions of 43 BC. Caesar’s policy of clementia was, in this respect, hardly a complete success.162 Suetonius’ explanation for the animosity that led to Caesar’s murder lays great weight on a violation of the same mechanism of reciprocity: when the senators approached Caesar in the temple of Venus Genetrix, he failed to stand up to honour their presence. By thus insulting the very people who were coming to honour him, Caesar demonstrated a lack of respect for them.163 The upheavals of the Late Republic influenced different people and areas unequally, separating winners and losers. The massive migrations of people and transfers of property during the civil wars and the triumviral period transformed not only Rome but the whole of Italy. Some individuals prospered and made spectacular careers, while others perished. Destruction, press-ganging into military service, forced settlements, and heavy taxation took their toll on communities. Even in the provinces, people began to approach the triumvirs with their requests.164 Though Syme’s concept of the ‘Caesarian party’165 received much criticism, there is a parallel in the social dynamics of modern dictatorships. Much like the ‘1938 generation’ of the Soviet Union, which climbed through the ranks at an unprecedented rate to fill the positions vacated by the purges, Late Republican civil wars and proscriptions provided extraordinary 160

Gradel, Emperor Worship (2002), 54–61. Suet. Iul. 79, 84 being the main source in addition to Cassius Dio. 162 163 Kumaniecki, ‘Prozess des Ligarius’ (1967), 457. Suet. Iul. 78. 164 Osgood, Caesar’s Legacy (2006), 402–3: ‘At the same time, everyone overseas had to learn how to make requests of the almighty triumvirs, and many had to face choosing between them when they began to quarrel.’ 165 Syme, Revolution (1960), 323. Already his contemporary critics noted the obvious parallels with the events of the 1930s. 161

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career opportunities for those who were lucky enough to side with the winners. What the tumultuous years of violence meant for individuals and how that influenced the popular perception of law and justice is hard to measure in any general way. The individual stories, on the other hand, may be quite harrowing. The famous funerary inscription called Laudatio Turiae (ILS 8393), is one such account. It contains the funerary oration of (most likely) Quintus Lucretius Vespillo, a Roman senator, for his wife Turia, praising her tenacious fighting spirit in the numerous misfortunes she faced, beginning with the murder of her parents on the eve of her wedding and culminating in the attempts to save and restore her proscribed husband. What each of these instances show—the fact that she had to avenge her parents herself or that she personally repulsed a gang attacking her house when her husband was away or that she personally pleaded with Lepidus for a pardon for her husband, only to be beaten and thrown out violently—is that there was no justice and no security beyond one’s own allies and the favour of the ruler. One’s life and property were constantly under threat from brigands small and large, from the highwaymen to the triumvirs themselves and their greedy henchmen. Finally, the story of Turia brings to the fore the extraordinary length of the period of violence and mayhem, how an entire lifetime could be spent under threat.166 The constant threat of violence, both that sanctioned by the authorities and violent crime made possible by the collapse of public order, were without doubt important factors in the way peace and security were welcomed and how the loss of political freedoms, which were to a large degree illusory for those not part of the elite, was perhaps seen as a trade worth making. The way that violence had become part of the political sphere is perhaps illustrated by the fact that Cicero, in his model constitution, sees it necessary to prohibit the use of violence in the public arena (Leg. 3.11.3). Private mob violence and crime were major concerns, and actions were taken to repress them. In 78 BC, the praetor peregrinus Cn. Octavius outlined in his edict the so-called formula Octaviana, which gave recourse to victims of intimidation and violence. Cicero mentions that it was used against supporters of Sulla to force them to

166

On Turia, the inscription, and its idenfication, see Osgood, Turia (2014).

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restore property that they had taken through intimidation. In an edict in 76 BC, praetor M. Lucullus formulated a plan of action for suppression of gang violence carried out by the so called familiae, or criminal gangs. Our main source is again Cicero, who in his pro Tullio argued a case based on this edict, detailing that the penalty should be the damages fourfold.167 The period in general was defined by a constant transformation of the social and economic realities, and much of this transformation was forced. However, it would be naive to reduce the whole era to a purely violent political struggle; there was a civil administration that needed to be taken care of, and it was dealt with by the same people who were engaged in the power-struggles. This multilayered and complex situation combined two contradictory traits with regard to Roman administration: on the one hand, the straightforward way in which problems were addressed, while on the other, the curiously legalistic way that these issues were argued and justified. The paradox was thus that, during the period of civil wars, the men who had power over life and death also made very important decisions, regarding civil law.168 For example, Cicero states how in June 44 BC, in the middle of the tumultuous aftermath of Caesar’s murder, the consuls held a cognitio on the decision made by Caesar regarding the Buthronians. Whether this constituted a trial is uncertain, though probable, because, on the advice of their consilium, the consuls decided to rule in favour of the Buthronians.169 The process of constitutional experimentation continued even after the death of Caesar, along with the centralization of power. As the second triumvirate (Triumviri Rei Publicae Constituendae) was formed by Marc Antony, Lepidus, and Octavian after the murder of Caesar, the proscriptions and general mayhem were again based on a loose legal framework of ratification after the fact, where laws like the 167 Cic. Verr. II.3.152 and Q. Fr. 1.1.21, the action refers to ‘QUOD PER VIM AUT (ET) METUM ABSTULERA(N)T’, i.e. to that which he (they) had taken by force or (and) by causing fear (to the victim). See equally Cic. Tull. 3.7. The requirements of carrying arms and forming a gang are not be found in this formula. On the formula Octaviana, see Haubenhofer, Quod metus causa gestum erit, ratum non habebo (2014); Ebert, Die Geschichte des Edikts (1968); Balzarini, Violento e rapina nel diritto romano (1969); Balzarini, ‘Cic. pro Tullio’ (1968). Vacca, Actio vi bonorum raptorum (1972); Maruotti, ‘La familia nell’editto di Lucullo’ (1993). 168 169 Millar, Emperor (1992 [1977]), 521. Cic. Att. 16.16c.

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lex Titia of 43 BC gave the triumvirs extraordinary powers. Military might and success on the battlefield were the driving factors, and though scholars have neatly defined the constitutional office of the triumvir and the powers associated with it, the triumvirs themselves were not in the least inhibited by such considerations. However, although it would appear that the second triumvirs did avoid any kind of extraordinary jurisdiction,170 the practice of jurisdiction and the narratives of the exercise of jurisdiction by the triumvirs added another layer of precedents upon which Augustus would begin to found his own jurisdiction. The second triumvirate gave the triumvirs powers that went beyond those of regular Republican magistracies, such as the imperium maius, a power first given to Pompey. Their office was clearly consular, and they had the right to convene the Senate. Their extraordinary powers led embassies, petitioners, and litigants to appeal directly to them, creating a monarchical situation. The monarchical element is visible especially in the blurred division between executive decisions and legal judgments, at times making the deprecatio more important than legal argumentation. However, the triumvirs did not have routine personal jurisdiction in Rome, which was a small step backwards in the development of a monarchic institution begun by Caesar and completed by Augustus.171 What was significant in the reformation of constitutional alternatives was the abolition of the dictatorship by Marc Antony in 44 BC. Cicero presents this as the only good deed of his enemy, who sought to demonstrate his odium regni, hatred of kingly power. For the subsequent Roman tradition on dictatorship, the wording of Cicero as well as the historical memory of the excesses done during the Late Republic defined the office as having the potential for despotism. Even Livy’s depiction of the selection of the first dictator underscores the fear that the powers of the dictator aroused in the plebs.172

170 Bleicken, Zwischen Republik und Prinzipat (1990); Lintott, ‘Review of Bleicken’ (1992), 251–2. On the many very irregular actions that were counted as legal procedure at that time, see Volkmann, Rechtsprechung (1969 [1935]), 11–50. 171 Millar, ‘Triumvirate and Principate’ (1973), 59–61. 172 Cic. Phil. 1.3, 2.91; Livy 2.18.8, 2.29.9–12; Straumann, Crisis and Constitutionalism (2016), 64–6.

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Republican precedents were very important to the formation of the emperor’s jurisdiction, but the nature of these influences is not immediately clear. On one hand, the emergence of imperial jurisdiction was the clearest difference between Republic and Empire, as there had been no single supreme authority on law, either as judge or legislator, during the Republic. On the other, exceptional measures such as the SCU, the granting of extraordinary commands and powers to individuals, usurped jurisdiction, and the use of coercive power with or without legal backing, for example in proscriptions, paved the way for the creation of the legal authority of emperors by making exceptional measures less exceptional. Equally, growing familiarity with the Greek and Hellenistic cultural background, both in practice and through kingship theory, shaped expectations of the power of the ruler. During the Late Republic, the transformation of political and legal culture is evident in observing Caesar’s public image and its afterlife, the images of warlord, divine king, and magistrate that define his historical memory. In pro Ligario, Cicero’s speech in a trial where Caesar the dictator was judge, these expectations were laid out as choices, along with their possible consequences. By using the examples of tyranny and monarchy, Cicero demonstrated through examples such as Sulla and his abuse of powers the way that one’s actions shape historical memory. Greek tyrants as well as other sovereign rulers were harnessed to show the dangers and possibilities of unfettered rule. In the case of Sulla and other Roman examples, the clearest conclusion was the way that law could be used both as a weapon against enemies as well as a tool to transform society and to reward one’s friends. In contrast to these examples of unrestricted powers, the model of the Roman magistrate was a different formative paradigm to influence imperial jurisdiction. While some magistrates, such as provincial governors, were free in their considerations of legal process, the praetors and other jurisdictional magistrates in Rome were bound by formalistic procedural rules. For someone like Cicero, this dualism was one between strict observation of the law and the consideration for justice and equity. His final model, that of the paterfamilias, was equally a figure of authority and responsibility, a character bound by tradition but free in operation. Like many others, Cicero expressed a longing for an authority figure, a princeps that

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would rise above the self-serving politics and bring harmony and justice. This longing for a strong leader was thus present in the public discourse of the Late Republic, and Cicero presents an example of the elements that constituted or could constitute one. The background of proscriptions, civil wars, and unexpected concentrations of power had a profound influence on the perceptions of justice and the expectations that were vested in leaders. Caesar the dictator as judge was the culmination of many developments leading to imperial jurisdiction. Caesar, or rather his public image both among contemporaries and afterwards, shaped the expectations and the limits of the acceptable. Justice, as a gift to be given by the powerful and a gift that one would need to elicit from the powerful, was as much the legacy of Caesar as were the stories of his arrogance and the seeking of divine honors. Cicero’s pro Ligario was in many ways a speech that belonged to the emerging new order, one defined by the sovereign power of the ruler. The ambiguousness of the rhetorical positions taken is a direct result of both holding up the illusion that what was going on was a trial, but at the same time appealing to the clementia Caesaris. Thus, when Cicero wanted to remind Caesar of the traditional constitutional safeguards that prevented him from condemning Ligarius to death, he accomplished this by raising the example of Sulla, who had disregarded them in his persecution of his enemies. What was even more striking was the similarity of the ambiguousness of the setting, reminiscent of the later imperial trials, where both the form and the justification for the trial were undefined but uncontested.

2 Augustus as Judge and the Relegation of Ovid INTRODUCTION The rise of the emperor’s jurisdiction may be seen as an issue of constitutionality. The dilemma of imperial jurisdiction is that no clear rule authorizes it and there is no obvious point of origin for the practice. Ever since Mommsen, many legal scholars have assumed that the behaviour of the Romans reflected and was based on the rules of their political and legal system.1 However, legal theory suggests that exceptions can be even more important than the rules themselves. In fact, administrative power or ruling may be based completely on exceptions, such as exceptional powers or a state of exception.2 Thus we should ask whether the Roman emperor as judge is an exception to Republican rules. When does the exception become the rule? When is a rule actually agreed on? In the constitutional 1

The legalistic view supposes that if an official committed an act in an official capacity, the very existence of that act meant that he had, by assumption, a right based on law to do so. By extension, when a change in the actions of official functionaries occurs, the assumption was that this change has been instituted via a constitutional process, for example, through legislation. Pure legalism is currently quite rare, and a study such as Spagnuolo Vigorita, Le nuove leggi (1992), 94, is sceptical of both a purely legislative basis and pure usurpation as explanations. Many contemporary students of the Roman constitution describe it as a natural growth, where written and unwritten norms, usages, and practices were in a constant state of change: ‘the constitution of the Republic was not something fixed and clear-cut, but evolved according to the Romans’ needs by more means than one. It was also inevitably controversial: there were frequently at least two positions which could be taken on major issues’ (Lintott, Constitution (1999), 7). 2 Even without referring to fashionable theories such as Agamben, State of Exception (2005).

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context of the Late Republic, the controversiality was often inbuilt within the system since contradictory opinions of the rules were regularly presented.3 The purpose of this chapter is to explore the contested issue of Augustus’4 adjudication5 through the narratives of constitutional exceptionalism.6 While during the Republic there had been no supreme judge or court in Rome or a system of regular appeals to the courts, in the Principate there emerges a system in which the emperor gains jurisdiction both on appeal and in the first instance.7 There are many unanswered questions regarding the introduction of imperial jurisdiction. What role did Augustus have in this transformation? Was the new jurisdiction based on Republican precedents, existing constitutional powers such as the proconsular imperium or 3

Lintott, Constitution (1999); Straumann, Crisis and Constitutionalism (2016). Of the magistracies held by Augustus, see Suet. Aug. 27. Of the immense biographical literature on Augustus, Bleicken, Augustus (2000) is one of the better ones, as is Kienast, Augustus (2014); the most recent assessments of the Augustan transformation are Richardson, Augustan Rome (2012) and Levick, Augustus (2010). In 1975 Bertram Haller already warned readers that his 15-page bibliography of Augustus’ policies contained only a small selection of published materials. Haller, ‘Augustus Bibliographie’ (1975), 55–74. The amount of literature is ever-growing; F. Hurlet’s bibliography of studies on Augustus and the imperial regime between the years 1996 and 2006, published in Anabases 6 (2007), occupies pp. 187–218 (Hurlet, ‘Recherches sur Auguste’ (2007)). 5 The term ‘adjudication’ is here used as a general term to refer to settling of controversies with a resolution that is considered binding. In the Republic, iuris dictio was limited to the praetors, aediles, and the provincial governors, but a iudex could also issue a binding verdict. One of the main issues on the emergence of imperial power over law is how jurisdiction is assumed and the ruler’s adjudication in resolving single issues slowly turns into jurisdiction. However, within classical Roman law the distinction between a iudex and an arbiter appears to have diminished, see Dig. 4.8.13.2; Broggini, Iudex arbiterve (1957); Roebuck and de Loynes de Fumichon, Roman Arbitration (2004). Of course, the emperor could equally be understood as a private judge, see Masuelli, ‘Giudice privato’ (2012). 6 The term ‘constitutional exceptionalism’ refers to the practice of Augustan constitutionalism in referring to the exceptional position of the ruler while concealing that the rules (or constitution) themselves had changed. On the constitutional nostalgia, see Pani, Costituzionalismo (2010), 177–81. 7 Millar, Emperor (1992 [1977]), 517; Crook, ‘Augustus’ (1996), 123: ‘The emergence of the ruler as supreme judge and head of the legal order is the principal formal difference between the Republic and Empire.’ That the emperor became a prolific legislator through edicts that had permanent validity was an equally crucial change. While it has sometimes been suggested that imperial edicts needed to be confirmed by successive emperors, there are many instances where Augustan edicts were deemed valid: Dig. 48.18.8.pr. or specifically abrogated (Dig. 28.2.26); Orestano, ‘Gli editti imperiali’ (1936). 4

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consular potestas, a legislative act that has remained unknown, or the extraordinary authority that Augustus enjoyed? How much and what kind of jurisdiction did Augustus actually have? Did he use his jurisdiction only in political trials or did he have routine jurisdiction? Much of the existing literature has sought to answer these questions by looking at the constitutional rules or jurisdictional practice as a source for these rules. This chapter seeks to take a new approach by examining the narratives of jurisdiction. How did the jurisdiction of Augustus appear to different groups and how did these perceptions change over time? Members of the elite in Rome and provincial petitioners had radically different views of imperial jurisdiction, but also within these groups there circulated different narratives of the position and powers of the emperor, some of them coming from the administration itself. Through the analysis of these narratives, I argue that imperial jurisdiction emerges gradually as a shared conviction during the reign of Augustus. Petitions presented to Augustus, his adjudication, and his growing political and legal centrality all contribute to the development of this conviction. While Augustus himself presents numerous references to Republican precedents such as imperium, auctoritas, tribunicia potestas, and so forth (and especially the frequent reference to his superiority, his superior auctoritas, and his imperium maius), what is truly foundational for the creation of jurisdiction is the emergence of a conception that the emperor was capable, willing, and justified to exercise jurisdiction. What has puzzled earlier scholars is that, for a change so momentous in the legal history of Rome, the paucity of sources is remarkable. The only roughly contemporary sources on Augustus as judge are a poem by Ovid (Tr. 2.121–40), an anecdote by Seneca (Ben. 3.27), two passing remarks by Valerius Maximus (7.7.3–4), and two provincial inscriptions (SEG IX 8; IG XII 3.174). Beyond that, Suetonius (Aug. 33.1–3, 53.2, 97.3) and Dio (51.19.6–7, 55.33.5) make general points about Augustus’ jurisdiction. Because there are no official or legal sources and the historical sources are mostly anecdotal, earlier scholarship has relied mostly on circumstantial evidence and assumptions about legislation. Mommsen emphasized the combination of imperium and legislative grants of jurisdiction given in 27 BC (first instance) and 30 BC (appellate), but was criticized by McFayden, who rejected a formal grant of jurisdiction to Augustus in Rome. Volkmann is the first to present the combination of imperium, auctoritas, and the power of paterfamilias as a sufficient foundation for Augustus’

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jurisdiction. Volkmann would finally accept the grant of appellate jurisdiction in 30 BC and criminal jurisdiction in 27 BC. Kelly stressed the importance of gradual evolution and the maiestas trials as leading to imperial jurisdiction, while Bleicken held that Augustus’ jurisdiction was secondary to the Senate’s. Millar further undermined the belief in any formal grant of jurisdiction by suggesting a source for it in both consular jurisdiction and petitions from the people. More recently, Honoré has bluntly claimed that whatever jurisdiction Augustus had was probably usurped.8 The following inquiry seeks to expand the analysis to include the tremendous change in the vocabulary and the narratives of jurisdiction that took place under Augustus by exploring the ideological constructs and historical narratives that were formulated not only during his reign but also afterwards. Behind the conflicting accounts of Augustus as judge is the wider controversy over the nature of Augustus’ rule. Historically, there have been two main interpretations of the Principate: the first seeing the new regime as tyrannical despotism, the second as a constitutional quasi-monarchy. Whether the Principate of Augustus is seen as a social institution, a monarchy, or a concentration of republican powers such as imperium maius and tribunicia potestas is a question of viewpoint.9 In the exercise of jurisdiction, the question can be simplified to whether Augustus merely acted without any formal authorization or was he given constitutional authorization to act as a judge? Because we have no official sources that report any kind of authorization, we are left with two sets of unofficial sources that describe, on the one hand, the practice of jurisdiction, and on the other, the ideological underpinnings that characterized the Principate of Augustus. Because Roman constitutionalism operated so much on the basis of shared understandings, it is vital to observe how the Romans

8 The main earlier works on Augustus’ jurisdiction are in Mommsen, Staatsrecht (1871–88), 2.2:958–88, but see also Mommsen, Strafrecht (1899), 260–1 (2.9.1); McFayden, ‘Princeps’ Jurisdiction’ (1923), 231–42; Volkmann, Rechtsprechung (1969 [1935]); Kelly, Princeps Iudex (1957); Bleicken, Senatsgericht und Kaisergericht (1962); Millar, Emperor (1992 [1977]); Honoré, Emperors and Lawyers (1994), 5–6. 9 Eck, ‘Emperor’ (2016); Peachin, Princeps (2005), 162–3, 168; Santalucia, ‘Augusto’ (1999), 261–77; Crook, ‘Augustus’ (1996), 113–23; Serrao, ‘Modello di costituzione’ (1991), 29–71; Arangio-Ruiz, Storia (1982), 215–21; De Martino, Storia (1974), 4:263–308; Millar, ‘Triumvirate and Principate’ (1973), 50–67.

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themselves had understood the role of the new regime. The debate over labelling has given way to an argument that assigning some constitutional term such as ‘monarchy’ to the Augustan Principate achieves very little. Of course, ancient authors such as Dio already used the word ‘monarchy’ to describe the Augustan Principate, and thus looking at how the Romans described it is certainly useful in appreciating how they understood the changes taking place.10 Precisely because there were no fixed rules, the way in which imperial capabilities like jurisdiction were discussed also had a distinct normative role in formulating the shared understanding of what the rules and established practices were. Many of the ancient authors, such as Dio and, to a certain degree, Suetonius, saw the institution of the emperor as an essentially unchanging creation of Augustus. While they have been followed by a number of the modern historians, a new interpretation sees the regime of Augustus as one of constant experimentation. Its supporters emphasize the element of change in the development of imperial rule and the importance of power and authority. For them, the fact that Augustus spent an increasing amount of time building the legitimacy of his rule speaks for the importance of authority. Far from being a ploy to lead the gullible into thinking that the Republic still existed, the constitutional narrative of continuity was an integral part of the imperial system. Of course, Augustus steadfastly maintained his grip on coercive power, but he developed the formulations of that power gradually, over time. The fact that the army was both professional and loyal to him personally, and that he controlled the material resources to support that army, secured his hold on power. The vast fortune that was in his personal control made it possible for Augustus to secure patronage over whole sectors of the population, not to mention client kings and other allies.11 10 Crook, ‘Augustus’ (1996), 113–18, drawing from the work of Orestano, calls the labelling vain and modernizing, arguing instead for a definition of the Principate as a historical fact sui generis that was undefined by the people who formed it and indefinable to modern historians. Starting from Mommsen’s diarchy, the hybrid constitutional concepts have become the norm. For example, Millar, ‘Triumvirate and Principate’ (1973), 50 saw the Principate as a monarchy arising from an aristocratic basis. On the definitional debates, see also Guizzi, Principato (1971). 11 Capogrossi Colognesi, Law and Power (2014), 265 and passim. Rivière, ‘Avantpropos’ (2012), 5 emphasizes how, for ancient authors, the early experiments of Augustus’ reign were generally uninteresting compared with the final regime. The theory of the era of Augustus as one of constant administrative experimentation has been advanced

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It may be argued that the extraordinary nature of imperial rule and the whole position of the emperor within the Roman constitutional framework was one of the few constants during the Principate. However, did the exceptionality of imperial rule signify that what constituted imperial jurisdiction was in a constant state of flux, or that it was in fact formulated by Augustus and remained essentially unchanged during the Principate?12 One of the most common features of monarchical power is that of exception, which demonstrates the degree to which they are in ultimate control of the legal and political system. As the ruler is always capable of making an exception to the rule, they were quite obviously the targets of various petitions.13 How much was the power of exception a part of the Augustan concept of ruling? Did this contribute to the constant evolution of the practices, and consequently rules, of the Principate?14 What I will be arguing is that the power of exception may also be seen as a power to create new practices and newly established modes of action. Together with the ideological propaganda, they serve to create a new constitutional practice. In the following discussion, we shall observe this phenomenon starting from the example of Ovid and his description of his banishment.15 While the historical events are not insignificant in themselves, the depiction of Ovid as falling victim to an edict of Augustus that sent him into exile reveals an inherent conflict in the new regime between republicanism and autocracy. Instead of looking at the reasons for Ovid’s exile,16 we will analyse the conceptions of by Eck, ‘Administrative Reforms’ (2010), 229–49 and ‘Herrschaft durch Administration’ (2012), 151–69. Similarly, Crook, ‘Augustus’ (1996), 113–18; Eder, ‘Augustus’ (1990), 77, and more generally Dettenhofer, Herrschaft und Widerstand (2000). 12 An issue discussed also by Peachin, ‘Judicial Powers’ (2015), 498–511. 13 The concept of petition is here used with a double meaning, both in reference to the petitions presented outside the legal framework and the petitions that follow some procedure that is not known. 14 Legal theorists like Schmitt have claimed that sovereignty is the power to decide on the exception. Since legal rules as general norms are incapable of covering each eventuality, power to decide what to do in situations that fall beyond the general rules is the mark of the sovereign, regardless of what the rules themselves say. Schmitt, Political Theology (1988), 4–7. On the centrality of the idea of the exception in Augustus’ regime, see Rich, ‘Emergency’ (2012), 37–121. 15 McGowan, Ovid in Exile (2009); Rădulescu, Ovid in exile (2002); Williams, Banished voices (1995); Claassen, Ovid Revisited (2008); Ingleheart, Ovid, Tristia (2010). 16 Thibault, Mystery (1964); Luisi and Berrino, Carmen et error (2008).

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Augustus as judge and the exceptional nature of Augustus’ rule in the writings of Ovid in contrast to the view of Augustus as presented in his own account of his achievements, the Res gestae. While Ovid portrays Augustus as an omnipotent figure that contains a dualism between a kind father and a monster, Augustus pictures himself as a continuation of Republican traditions, only an exceptional character, as Pompey was previously. However, the image of Augustus as an active sovereign is highlighted by two cases from the provinces in which Augustus is petitioned to resolve local quarrels in spite of, and in opposition to, local authorities. The later Roman authors such as Suetonius and Dio invariably invest Augustus with the full powers of the Roman emperor, including regular jurisdiction and legislative powers. What the following discussion seeks to show is how the established views of modern historians and their contradictions are derived from the conflicting narratives of the ancient sources. From these two narratives, that of Augustus as a sovereign, quasi-divine ruler as presented by Ovid, and that of Augustus as an esteemed leader of the Roman Republic, emerge different conceptions, in the works of later Roman authors, of what the emperor was and what he could do. The analysis of jurisdiction is complicated by the fact that it included such different elements, ranging from special cases in the imperial household, political trials, appeals from the provinces, and possibly, routine jurisdiction involving regular cases. While much of modern historiography has tried to resolve the conflict between the two contradictory narratives, this chapter seeks to demonstrate how the conflict was actually an integral part in the understanding of the Principate. The narrative tradition on Augustus continues many of the conflicting narratives that Cicero outlined on Caesar, but, as I will demonstrate, the various narratives coalesce into two opposing master narratives.

THE RELEGATION OF OVID Ovid’s Tristia or ‘Lamentations’ reiterates how he was condemned to his dreaded exile, in the process giving an enlightening example of the workings of imperial jurisdiction in the Early Principate. Ovid’s description of his relegation in the spring of AD 8 is the

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only contemporary account of Augustus acting as judge in Rome.17 The portrayal is quite revealing of the position and powers of Augustus. The section of Tristia (2.121–40) in which Ovid outlines in elegiac verse how he fell from being an admired poet moving in the highest society of Rome to an outcast relegated to the farthest reaches of the Empire is surprisingly clear and straightforward: So my house, though pleasing to the Muses, has fallen, sunk by a single charge though no small one: yet its fall is such that it can rise again, if only time will mellow Caesar’s anger, whose clemency in punishing me is such that the penalty is milder than I feared. Life was granted me, your anger stopped short of death, O Prince, how sparingly you used your powers! Then, as if life were too small a gift, you added, since you didn’t take it away, my family wealth. You didn’t condemn my action by Senate decree, nor was my banishment ordered by special court. With words of stern invective (worthy of a prince)—you yourself, as is right, avenged the offence. And your edict, though harsh and threatening, was still mild when naming my punishment: since it calls me relegatus and not exile, and special words cover my possessions. There is no punishment worse to anyone in his right senses than the displeasure of a great man. Corruit haec igitur Musis accepta, sub uno sed non exiguo crimine lapsa domus: atque ea sic lapsa est, ut surgere, si modo laesi ematurverit Caesaris ira, queat. Cuius in eventu poenae clementia tanta est, venerit ut nostro lenior illa metu. Vita data est, citraque necem tua constitit ira, o princeps parce viribus use tuis! Insuper accedunt, te non adimente, paternae, tamquam vita parum muneris esset, opes. Nec mea decreto damnasti facta senatus, nec mea selecto iudice iussa fuga est. Tristibus inuectus verbis (ita principe dignum) ultus es offensas, ut decet, ipse tuas. Adde quod edictum, quamuis immite minaxque, attamen in poenae nomine lene fuit: quippe relegatus, non exul, dicor in illo,

17 Most recently, Leitner, ‘Nasonis relegatio’ (2006), 150–65; Liebs, Summoned to the Roman Courts (2012), 86–91; Schilling, Poena extraordinaria (2010), 93–103; Luisi, ‘Vendetta-perdono’ (1997), 271–91; Verdiere, ‘Relegation’ (1973).

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At the outset Ovid recognized that he had provoked Augustus’ anger, but the punishment he deemed lenient, relegation19 without loss of property rights. There are a number of interesting points in this depiction. First, he describes how the imperial virtue of clementia had triumphed over the imperial ira, so that he was not crushed to death by the full force of imperial power. It is very clear that Ovid thought that Augustus could have killed him if he wanted to. He portrays this punishment as a gift, the reasoning being that Ovid could, in fact, have completely forfeited his life and property in angering Augustus, but Augustus restored them to him as a gift in his judgment. Second, Ovid describes the procedure of condemnation as something that the emperor decided on personally, rather than subjecting Ovid to a legal process in the Senate or a court of law. He was relegated with an edict (edictum),20 in contrast to being secretly banished or put on trial publicly. Finally, Ovid underlines how Augustus was completely within his rights in meting out punishment. It may be understood from the wording that there was no trial per se, nor did Ovid get to answer whatever charges were made against him, but rather that he received the edict in writing without any advance warning of the accusations. Ovid left Rome for his assigned place of exile in Tomis, but his wife remained in the city. The intention was that she would pursue his 18

Ov. Tr. 2.121–40. Tr. adapted from both Wheeler and Kline. Relegation was normally considered to be a temporary measure and the relegated could keep their property, whereas exiles were banished permanently and lost their property, though there is variance in the terminology (Dig. 48.22.7.2, 48.22.14). Relegation was used both as a punishment and as a coercive administrative act. Relegatio was a power limited to magistrates with imperium and it was used to expel both foreigners and, quite rarely, Roman citizens (Dig. 48.22.14.2). In addition to Ovid, famous cases include the relegation of Lamia by Gabinius in 58 BC, Cicero’s threat of relegation to Catiline in 63 BC, and a few uncertain earlier cases. The use of relegatio underwent changes even in the Principate. See also Kelly, History of Exile (2006), 65–7. 20 An edict was normally thought to express an administrative rule with general application, not a decision in an individual case (Gai. Inst. 1.6). While the vast majority of the uses of the word edictum refer to this specific technical usage, in isolated cases (such as Cic. Phil. 3.8.21), it might refer to a more general communication and imperial constitutions were equally often referred to as edicta (Ando, Imperial Ideology (2000), 102–15). 19

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pardon and recall through their friends in the imperial court. In the numerous letters to his friends in Rome, Ovid expresses the view of Augustus as a righteous monarch. He asks them to plead to Augustus: Only beg that merciful deity, who is justly angered with me, to remove me from the savagery of Scythian lands. I know it’s difficult, but virtue aims for the heights, and gratitude for such a service will be all the greater. Besides, it’s no Polyphemus in Etna’s vast caves, no Antiphates, who will hear your words, but a calm and lenient father, inclined to pardon, who often thunders without the flash of lightning, who is indeed sad himself when he has ordered something sad, and for whom to exact punishment is to punish himself. Though his mercy was defeated by my fault and his anger was forced to display its full strength. Mite, sed iratum merito mihi numen adora, eximar ut Scythici de feritate loci. Difficile est, fateor, sed tendit in ardua virtus et talis meriti gratia maior erit. Nec tamen Aetnaeus vasto Polyphemus in antro accipiet voces Antiphatesue tuas, sed placidus facilisque parens veniaeque paratus et qui fulmineo saepe sine igne tonat, qui, cum triste aliquid statuit, fit tristis et ipse cuique fere poenam sumere poena sua est. Victa tamen vitio est huius clementia nostro venit et ad vires ira coacta suas.21

Ovid’s intent is to show how Augustus is no monster, but rather a deity willing to pardon his offence. This proved to be of no avail, and Ovid’s writings in exile are full of pleading to people to get Augustus to pardon him.22 He did not. Ovid’s depiction of the interaction follows the model of revenge and forgiveness, in which he uses the language of revenge (ultus est), though with a number of conditions and softenings, and offers the role of forgiver to Augustus, a role that Augustus did not accept.23 It is exceedingly clear, through all the praise that Ovid heaps on Augustus—his clementia, benevolence, righteousness, and so 21

Ov. Pont. 2.2.109–20. Tr. adapted from both Wheeler and Kline. Ov. Tr. 5.2.37–8 accede rogaque: Caesare nil ingens mitius orbis habet. me miserum! See also Tr. 4.9.11. 23 Luisi, ‘Vendetta-perdono’ (1997), 285–91. 22

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forth—that he is very, very afraid. In fact, though Ovid describes Augustus as the opposite of Polyphemus, the monstrous Cyclops who imprisoned the men of Odysseus in a cave, it would seem that that is how Augustus actually appears to Ovid: a violent, omnipotent creature who owns everything and eats little men for breakfast, lunch, and dinner. It is quite understandable that the comparison between these two figures is done in a way that does not suggest that Ovid is even hinting that Augustus is a monster. We should perhaps refrain from accusing Ovid of a lack of sincerity; he is, after all, asking to be forgiven.24 Ovid can be seen as simultaneously writing a genuine letter pleading for a pardon and, while doing that, engaging in all kinds of double entendres. While apologizing for the Ars amatoria, he is also giving Augustus a lesson in poetry appreciation. By speaking directly to Augustus, Ovid takes the discussion to a very personal level, at the same time regretting the potential inherent immorality of the Ars and praising Livia as the perfect, virtuous spouse. In the last instance, the subversive potential is evident for all Roman readers: far from being an ideal Roman marriage, the essentially dynastic union between Augustus and Livia was a third marriage for Augustus, a second for Livia, and she was far along in a pregnancy by her first husband at the time of their wedding.25 There is no contemporary information regarding what crime or act Ovid was accused of, or in which court, if any, he was condemned. It has been noted that the only logical interpretation of Ovid’s words is that Augustus had decided the case himself.26 Some interpret the relegatio as an exercise of the imperium of Augustus, a coercitio, an administrative act.27 If the relegation was ordered as a punishment, the most common suggestion is that it was the same punishment as for adultery. Because Julia, Augustus’ granddaughter, was condemned for adultery at roughly the same time, it has been argued that Ovid, a regular in the same circles, may have been connected to these scandals or encouraged them with his writings. Thus, the traditional explanations for the relegation have been either his collusion in the

24 Ingleheart, Ovid, Tristia (2010), 27 sees the text’s background in both the strategic need to hide anger and resentment and, in general, in the literary tradition of the deceitful letter. 25 26 Barchiesi, Poet (1997), 31–3. Millar, Emperor (1992 [1977]), 523. 27 Jones, ‘Imperium’ (1951), 118; Volkmann, Rechtsprechung (1969 [1935]), 183–4.

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adultery of Julia or the writing of the Ars amatoria.28 In his 1964 book on the innumerable explanations given for Ovid’s relegation, Thibault summed up the facts as related by Ovid: the error that he committed is not one that is safe to describe. However, it was committed through stupidity and naivety, but he intended no wrong, nor did he gain any personal advantage. Nevertheless, he saw something that may be described as a culpa, a crimen, or a funestum malum. Thus, his sin was to have eyes to see (Tr. 1.5.42, 3.6.27).29 Despite the meagre information provided by Ovid, or perhaps indeed because of it, much of the existing literature has been devoted to deciphering the real reasons for Ovid’s banishment, the mysterious carmen et error that he mentions, but with fairly disappointing results. The retraction of the Ars amatoria in the Tristia suggests a linkage between the banned licentious book, Augustus’ moral reform, and the banishment, but it would appear to be somewhat strange, since the book was only banned nearly a decade after publication.30 By the 1960s the tally of possible explanations for Ovid’s banishment had already reached over a hundred, counting from the Renaissance onwards.31 The various theories formulated sought to present Ovid either as a supporter of the new regime, a subversive intellectual, or something in between. Ovid’s pleadings for pardon have been a rich source for double meanings and ironic overtones. Was Ovid actually pleading for mercy, or was he simply appearing to do so in order to present scathing criticism? Or even, was Ovid actually in exile at all or was the theme of exile and non-being just a literary construct?32 These are, of course, all opinions that may find some support in Ovid’s texts. Others have looked at the policies of Augustus and his tolerance for dissent and criticism, but even here the evidence is circumstantial.33 However, what is clear is that by continuing to 28

Liebs, Summoned to the Roman Courts (2012), 83–94; Volkmann, Rechtsprechung (1969 [1935]), 185. 29 Thibault, Mystery (1964), 116–18; Luisi, ‘Vendetta-perdono’ (1997), 282. For the background of the era, Syme, History in Ovid (1978) is still informative. 30 Barchiesi, Poet (1997), 31 raises an interesting point of whether Augustus had even read the book. Ovid would appear to assume that Augustus did not have the time or interest in reading it. 31 Thibault, Mystery (1964). 32 For the various theories, see Nugent, ‘Tristia’ (1990). On the last claim, see Fitton Brown, ‘Unreality’ (1985), 18–22. 33 Dettenhofer, Herrschaft und Widerstand (2000), 190–8, argues that Augustus would have gradually cracked down on dissent and defamation.

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write, Ovid also continues to demonstrate that Augustus can control his body but not his mind. On the contrary, Ovid exerts power over Augustus by defining his public image.34 In contrast to some suggestions,35 Ovid was hardly the clueless poet having no knowledge of law and legal procedure. In fact, we have a number of sources that suggest that he not only was on an official career track (cursus honorum) before he branched out into poetry, but served as a triumvir capitalis and a decemvir stlitibus iudicandis and also practiced law as an advocate.36 While it has been rightly noted that the use of an edict for sentencing was a very unusual choice, we would be hard pressed to maintain that, after experience in the courts, Ovid would have been mistaken on this formality.37 As stated above, that something was unusual hardly made it unlikely in the context of the Early Principate, a period when many of the social, moral, and legal structures were in a state of flux. In fact, Ovid treats the point that he had been condemned by Augustus himself rather than one of the regular courts as a personal choice made by the emperor. Augustus was able to relegate Ovid not simply because he had the official power to do so, or a clear reason and justification behind his actions, but also because he had the power to make an exception, made possible by the rules, the lack of rules, or the flexibility of such rules. Like Caesar, who had relegated the impostor Herophilus, Augustus clearly could make such a decision, as he had done in the case of both Julias, his daughter and granddaughter, without having to justify the decision. The relegation of Ovid also set a precedent for the nearly routine relegations of persons such as philosophers (for example, Seneca), writers, and poets, who were banished from Rome, not to mention other important figures like Agrippa Postumus. What this entailed was that people who were capable of influencing public opinion were under a threat of being removed if they began to raise uncomfortable issues.

34 Lowrie, Writing, Performance, and Authority (2009), 274 mentions that Ovid is actually one of the authors most extensively describing Augustus as a god. Compare Martin, ‘Res publica’ (2009), 267–79, for an analysis of Ovid’s veiled criticism of Augustus in another instance. 35 Volkmann, Rechtsprechung (1969 [1935]), 186. 36 Ov. Tr. 2.93–6, 4.10.33–4; Fast. 4.383–4. On the potential legal career of Ovid, see Kenney, ‘Ovid and the Law’ (1969), 241–66. 37 Liebs, Summoned to the Roman Courts (2012), 84.

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THE MANY FACES OF AUGUSTUS AS JUDGE Apart from Ovid, the sources on Augustus’ jurisdiction are limited, with the Roman literary sources mostly mentioning anecdotal cases involving Roman high society, while the two known inscriptions give details on provincial appeals to Augustus. The views of Roman authors on Augustus as judge vary greatly, from those of contemporaries or near-contemporaries Ovid, Seneca, and Valerius Maximus, who depict Augustus mostly addressing issues of the elite, to those of later historians who emphasize the regularity and volume of Augustus’ adjudication. Within the Roman elite, Ovid’s depiction of his sentence as a gift continues an old tradition. It has been shown that gaining gratitude through gift-exchange was an integral part of how the emperor interacted with the elite.38 Seneca mentions how a senator named Rufus had made some drunken utterances regarding Augustus’ safety, and after sobering up, appeared before Augustus with apologies. Upon being readmitted to favour, he asked for a large gift to prove it.39 Neither Ovid’s nor Rufus’ cases may be held as examples of regular imperial jurisdiction in the same sense as adjudicating civil matters of people outside the court society. Rather than a judge, Augustus appears as a ruler, making political decisions.40 Valerius Maximus represents a slightly different view, as both cases he mentioned are closely associated with Augustus’ marriage legislation. Valerius Maximus writes, in passing, that Augustus intervened directly in two cases of disinheritance. He issued a decree ordering C. Tettius, who had been disinherited in infancy, to take possession of his father’s estate. The given rationale was that Augustus was acting in the spirit of the father of the fatherland.41 Similarly, the disinherited sons of a woman called Septicia approached Augustus, who disapproved of both her remarriage at an advanced age and her will. He gave the sons possession of their mother’s inheritance and the dowry because there has been no intent to have children in her second marriage.42 In both cases, Augustus issued a legally binding decree on matters of family law

38

Roller, Constructing Autocracy (2001), 179–81. Sen. Ben. 3.27 Mea causa dabo operam, ne umquam tibi irascar! 40 Millar, Emperor (1992 [1977]), 521 says one should distinguish between civil cases and cases that involved persons who had fought or conspired against the emperor. 41 Val. Max. 7.7.3 patris patriae animo usus. Kelly, Princeps Iudex (1957), 86. 42 Val. Max. 7.7.4. 39

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that would normally have been dealt with in the centumviral court.43 The problem with all of the near-contemporary literary sources is that they only mention rulings in passing,44 and the references contain little legally relevant information. Only the cases mentioned by Valerius Maximus may be understood as the exercise of jurisdiction in any formal sense, though even there it is unclear whether these inheritance cases were brought to Augustus through a direct petition or by an appeal from the regular courts. In addition to Roman literature, we have two important epigraphic sources which attest to Augustus settling legal disputes in the provinces. If the cases mentioned above were instances where Augustus was operating in areas where he had distinct political interests, these are petitions or administrative requests directed to the ruler. The first is the second Cyrene Edict (SEG IX 8),45 known from an inscription found in Cyrene in 1927. It has conventionally been dated to 6 BC,46 regarding apparently an accusation against the Roman proconsul who sent four persons to Rome for questioning. These cases testify to the petitions that were directed to Augustus by the people of the Empire, seeking his aid in lawsuits. The inscription contains Augustus’ answer to the petitioners. The Emperor Caesar Augustus, pontifex maximus, in his seventeenth tribunician power, declares: Publius Sextius Scaeva does not merit reproach or censure for ordering Aulus Stlaccius Maximus son of

43 Val. Max. 7.7.3: Augustus in bona paterna ire decreto suo iussit, 7.7.4. On this case, see Kelly, Princeps Iudex (1957), 84–6; Spagnuolo Vigorita, Casta (2010), 149–50. While Jones, ‘Imperial and Senatorial Jurisdiction’ (1954), 476 and Volkmann, Rechtsprechung (1969 [1935]) consider these to be cases in the first instance, we cannot rule out that these were petitions after the ruling of the regular court, as suggested by Mommsen and Kelly. Fanizza, L’amministrazione (1999), 38–9 suggests that these were decisions of magistrates. 44 How legal may one hold some cases, for example, on conspiracies, is debatable. Seneca’s account of Cinna’s pardon is a case in point, see discussion in Ch. 3. Sen. Clem. 1.9. 45 Oliverio, ‘Stele di Augusto’ (1927), 13–67; Anderson, ‘Augustan Edicts’ (1927), 34–8; Stroux and Wenger, ‘Augustus-Inschrift’ (1928), 1–145; von Premerstein, ‘Neugefundenen Edikte’ (1928), 419–531 and von Premerstein, ‘Kyrenäischen Edikten’ (1931), 431–59; de Visscher, Edits d’Auguste (1940), 16–27; Oliver, ‘Edict at Cyrene’ (1949), 107–8; Ehrenberg and Jones, Documents (1955), n. 311; Oliver, Greek Constitutions (1989), 40–55; Mantovani, ‘Rivelazioni’ (2011), 195–214. 46 The only chronological information is his tribunician power, which he is reported to have had in 36 and 30 BC and from 23 BC onwards continuously, but the information is not consistent.

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Lucius, Lucius Stlaccius Macedo son of Lucius, and Publius Lacutanius Phileros, freedman of Publius, to be sent on to me from the province of Cyrene under guard because they had said that they had knowledge concerning my security and the commonwealth and wished to declare it. In so doing, Sextius performed his duty conscientiously. However, since they have no information that concerns me or the commonwealth, but have declared and convinced me that they had misrepresented and lied about this in the province, I have set them free and am releasing them from custody. But as for Aulus Stlaccius Maximus, whom the envoys of the Cyrenaeans accuse of having removed statues from public places, among them even the one on the base of which the city inscribed my name, I forbid him to depart without my order, until I have investigated this matter.47 Αὐτοκραίτωρ Καῖσαρ Σεβαστὸς ἀρχιε | ρεὺς δημαρχικῆς ἐξουσίας τὸ ἑπτακαιδείκατον λέγει· φθόνος ψόγος | τε εἶναι Ποπλίωι Σεξστίωι Σκεύαι οὐκ ὀφέλει, ὅτι Αὒλον Στλάκκιον Λευ | κίου υἱὸν Μάξιμον καὶ Λεύκιον Στλάκκιον Λευκόυ υἱὸν Μακεδόνα καὶ Πόπλι | ον Λακουτάνιον Ποπλίου ἀπελεύθερον Φιλέρωτα, ἐπειδὴ ἑατοὺς οὗτοι, ǁ ὃ πρὸς τὴν ἐμὴν σωτηρίαν τά τε δημόσια πράγματα ἀνῆκεν, ἐπίστασθαι καὶ | βούλεσθαι εἰπεῖν ἔφησαν, δεσμίους πρός με ἐκ τῆς Κυρηναικῆς ἐπαρχήσας{α} | ἀναπεμφθῆναι ἐφρόντισεν· τοῦτο γὰρ ἐποίησεν Σέξστιος καθηκόντως καὶ ἐ | πιμελῶς. λοιπὸν ἐπειδὴ τῶν πρὸς ἐμὲ καὶ τὰ δημόσια πράγματα ἀνηκάν | των οὐδὲν γεινώσκουσ{ι, τ}οῦτο δὲ ἐν τῆι ἐπαρχήαι εἶπαν ἑαυτοὺς πε ǁ πλάσθαι καὶ ἐψεῦσθαι φανερόν τε ἐποίησάν μοι, ἐλευθερωθέντας | αὐτοὺς ἐκ τῆς παραφυλακῆς ἀφείημι. Αὖλον δὲ Στλάκκιον | Μάξιμον, ὃν Κυρηναίων οἱ πρέσβεις αἰτιῶνται ἀνδριάντας ἐκ τῶν | δημοσίων τόπων ἠρκέναι, ἐν οἷς καὶ τὸν ὧ ἡ πόλεις τὸ ἐμὸν ὄνομα ὑπέγραψεν, ἓως | {ς} ἂν περὶ τούτου τοῦ πράγματος διαγνῶ, ἀπελθεῖν ἄνευ τῆς ἐμῆς ἐπιταγῆς κω ǁ λύω.

The case is, to say the least, complicated. The ruling given by Augustus is first and foremost on a complaint against the proconsul Scaeva, who had sent the men to Rome. Apparently, the ruling was given to the envoys of the city of Cyrene, who then had it inscribed along with a number of other documents and edicts of Augustus. The role of the envoys is unclear. If the envoys are working to release the men from captivity, it would be strange that they would then provide fresh accusations of maiestas against one of them. A possibility is that the men had gotten into trouble and, by purporting to have important information, secured a ticket to Rome, and the envoys pursued them to bring them back to Cyrene, 47

Tr. Lewis, Greek Historical Documents (1974), 6–7.

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for whatever reason.48 What happened to the three men afterwards is not clear, as our sources are silent on any further developments. The important matter is that Augustus exercises his jurisdiction on two crucial issues. First, he settles the complaint of provincials against a Roman official, dismissing the charges of abuse of power. Second, while he releases two of the informants on a possible conspiracy, the third is held under suspicion of maiestas for removing a statue of the emperor. Based on this case, the jurisdiction that he is asserting appears to be linked exclusively to the actions of Roman officials under his authority and his public persona. The controversy is moved to Rome and new arguments are presented to Augustus, perhaps because it is assumed that they will be effective in convincing him. It is possible that the accusations of maiestas are made because it is believed that they would be valuable in gaining Augustus’ attention.49 While what is absent from the discussion is any reference to the powers or jurisdictional duties of Augustus, it is clear that what the parties present is what they think will be relevant to Augustus himself. Augustus could settle the matter and a number of other disputes conclusively with his letters and edicts, even though this was formally one of the provinces belonging to the Senate. While both of these legal issues referred to above were linked directly to Augustus or to the imperial administration, we have another inscription containing a provincial case that had reached Augustus on appeal. This is a case from Knidos in 6 BC about the death of a man in a quarrel. What we have is a letter of Augustus engraved in marble (IG XII 3.174 = FIRA III 185).50 The letter51

As suggested by Mantovani, ‘Rivelazioni’ (2011). Giving wrongful information would make them liable for calumnia, though. See also Peachin, ‘Judicial Powers’ (2015), 542–5. 49 Peachin, ‘Judicial Powers’ (2015), 545–9. Because the case is provincial, it does not shed light to the dispute between Kelly and Bleicken over the origins of imperial jurisdiction in the maiestas cases. 50 See Oliver, Greek Constitutions (1989), 34–5 on the inscription and its publication. The editio princeps is Dubois, ‘Lettre aux Cnidiens’ (1883), 66–7, other editions FIRA III 185; Blümel, Inschriften von Knidos (1992), nn. 34–5. On the inscription, see also Wankerl, Appello (2009), 2–16. On the earlier history of interpretations, see Volkmann, Rechtsprechung (1969 [1935]), 162. 51 Imperial letters were to become the main form of transmission of imperial legal interpretations. The strict division between epistulae and rescripta, i.e. letters to functionaries and shorter answers to petitioners, as established by Wilcken, has recently been questioned, see Arcaria, Referre (2000), 3–25. 48

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begins with a greeting, a statement of the matter at hand and the immediate actions taken by Augustus: Imperator Caesar Augustus, son of the deified (Julius), pontifex maximus, consul designate for a twelfth time, in his eighteenth tribunician power, to the chief magistrates, council, and people of Knidos, greetings. Dionysios II and Dionysios II son of Dionysios appealed to me in Rome and, giving me your decree, charged Euboulos son of Anaxandrides, now deceased, and his surviving wife Tryphera, with the death of Euboulos son of Chrysippos. I ordered my friend Asinius Gallus to question under torture those of the slaves involved in the charge.52 [δημι]οργοῦ δὲ Καιρογένευς Λευ[κ]αθέου. Αὐτοκράτωρ Καῖσαρ θεοῦ υἱὸς _ _ __ Σεβαστὸς ἀρχιερεὺς ὕπατος τὸ δωδέκατον ἀποδεδειγμένος καὶ δημαρχικῆς ἐξουσίας τὸ ὀκτωικαιδέκατον {ὀκτωκαιδέκατον} Κνιδίων ἄρχουσι βουλῆι δήμωι χαίρειν· οἱ πρέσβεις ὑμῶν Διονύσιος βʹ καὶ Διονύσιος βʹ τοῦ Διονυσίου ἐνέτυχον ἐν Ῥώμῃ μοι καὶ τὸ ψήφισμα ἀποδόντες κατηγόρησαν Εὐβούλου μὲν τοῦ Ἀναξανδρίδα τεθνειῶτος ἤδηι {ἤδη}, Τρυφέρας δὲ τῆς γυναικὸς αὐτοῦ παρούσης, περὶ τοῦ θανάτου τοῦ Εὐβούλου τοῦ Χρυσίππου. {vac.} ἐγὼι {ἐγὼ} δὲ ἐξετάσαι προστάξας Γάλλωι Ἀσινίωι τῶι ἐμῶι φίλωι τῶν οἰκετῶν τοὺς ἐνφερομένους τῆι αἰτίᾳ διὰ βασάνων.53 _

Augustus begins by addressing the magistrates, the council, and the people of Knidos, who had appealed to him. The embassy of the city of Knidos, consisting of two men, had delivered an official request to Augustus to bring murder charges against Tryphera in the killing of Euboulos son of Chrysippos. Tryphera, whose now-dead husband had been equally charged, apparently had been consulted as well. It is unclear from the wording and the context whether Tryphera was actually in Rome at the time and present while Augustus was settling the matter.54 Augustus appointed Asinius Gallus to investigate the case. The consul of 8 BC, Gallus was the proconsul of Asia at the time.55 The torture of slaves was standard procedure, as their 52

Tr. Chisholm and Ferguson, Rome (1981), 132, 134–5. IG XII 3.174, ll. 1–13. 54 See Oliver, Greek Constitutions (1989), 37, on the variations on the translation of the word παρούσης in the text. Though the casual meaning would be ‘present here’, some have argued that in the context it would mean simply ‘still alive’, in contrast to her dead husband. Wankerl, Appello (2009), 6. 55 While he would have an good career under Augustus, later under Tiberius Gallus would be disgraced by charges of adultery, arrested, and would die of starvation while in custody (Tac. Ann. 6.23). Volkmann, Rechtsprechung (1969 [1935]), 164 maintains that Gallus acted as the emperor’s friend, not as proconsul. Millar, Emperor 53

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testimony was acceptable only if given under torture.56 Augustus then describes the findings made by Asinius Gallus: I learned that Philinos son of Chrysippos had three nights in a row violently attacked the house of Euboulos and Tryphera, besieging them as it were. On the third night he brought with him his brother Euboulos. The owners of the house, Euboulos and Tryphera, as they were unable to enjoy safety in their house either by negotiating with Philinos or by barricading themselves against his attacks, ordered one of their slaves, not to kill him outright (as one might be impelled in justifiable anger), but to drive him off by emptying their chamber pots. But the slave, whether intentionally or not (he persists in denial), let go the pot as well, with the result that Euboulos fell struck, though he would deserved to be spared more than his brother. Enclosed are the depositions themselves. ἔγνων Φιλεῖνον τὸν Χρυσίππου τρεῖς νύκτας συνεχῶς ἐπεληλυθότα τῆι οἰκίᾳ τῆι Εὐβού λου καὶ Τρυφέρας μεθ’ ὕβρεως καὶ τρόπωι τινὶ πολιορκίας, τῆι τρίτηι δὲ συνεπηιγμένον {συνεπηγμένον} καὶ τὸν ἀδελφὸν Εὔβουλον, τοὺς _ δὲ τῆς οἰκίας δεσπότας Εὔβουλον καὶ Τρυφέραν, ὡς οὔτε χρηματίζοντες πρὸς τὸν Φιλεῖνον οὔτε ἀντιφραττόμενοι ταῖς προσβολαῖς ἀσφαλείας ἐν τῆι ἑαυτῶν οἰκίαι τυχεῖν ἠδύναντο, προστεταχχότας {προστεταχότας} ἑνὶ τῶν οἰκετῶν οὐκ ἀποκτεῖναι ὡς ἴσως ἄν τις ὑπ’ ὀργῆς οὐ[κ] ἀδίκου προήχθηι {προήχθη}, ἀλλὰ ἀνεῖρξαι κατασκεδάσαντα τὰ κόπρια αὐτῶν· τὸνδὲ οἰκέτην σὺν τοῖς καταχεομένοις εἴτε ἑκόντα εἴτε ἄκοντα—αὐτὸς μὲν γὰρ ἐνέμεινεν ἀρνούμενο[ς]—ἀφεῖναι τὴν γάστραν, τὸν Εὔβουλον ὑποπεσεῖν δικαιότερον ἂν σωθέντα τἀιδελφοῦ {τἀδελφοῦ}. πέπονφα δὲ ὑμεῖν καὶ α[ὐ]τὰς τὰς ἀνακρίσεις. {vac.}57

The investigation of Gallus revealed that, far from being the culprits, Tryphera and her now-dead husband had actually been the victims of unlawful attack. For reasons that are unclear, their house had been attacked by a man and possibly his companions. Whether he had a legitimate grievance or he was just a nuisance is not stated, but he could not be negotiated with. Since Tryphera and her husband decided that throwing faeces at the attackers was a suitable recourse, it is unlikely that this attack was a mortal danger. However, because of a mistake in throwing the vessel with the contents, a relatively innocent man was dead and the city of Knidos wanted to punish the

(1992 [1977]), 235 ponders whether Gallus was actually in Rome or investigated the matter in Knidos. 56 For an overview, see Pölönen, ‘Plebeians and Repression’ (2004), 217–57. 57 IG XII 3.174, ll. 13–28.

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culprits. What follows is that Augustus criticizes them harshly for accusing the innocent and protecting those who had disturbed the common security:58 I should have been at a loss to understand why the defendants were so fearful of your questioning their slaves, if you had not given them strong evidence of being hard and hostile to opposition, angry not at those deserving to suffer any and every punishment for thrice launching a nocturnal attack with force and violence against another’s house and (thereby) threatening the common safety of you all, but at those who did no wrong but suffered misfortune even when they tried to defend themselves. Now, you would do well, in my view, by seeing to it that the records in your public archives conform to my judgment in this matter. Farewell. ἐθαύμαζον δ’ ἄν, πῶς εἰς τόσον ἔδεισαν τὴν παρ’ ὑμεῖν ἐξετασίαν τῶν δούλων οἱ φ[εύ]γοντες τὴν δίκην, εἰ μή μοι σφόδρα αὐτοῖς ἐδόξ[ατε] _ χαλεποὶ γεγονέναι καὶ πρὸς τὰ ἐναντία μισοπόνη[ροι], μὴ κατὰ τῶν ἀξίων πᾶν ὁτιοῦν παθεῖν, {vac.} ἐπ’ ἀλλο[τρίαν]οἰκίαν νύκτωρ μεθ’ ὕβρεως καὶ βίας τρὶς ἐπεληλυ[θό]των καὶ τὴν κοινὴν ἁπάντων ὑμῶν ἀσφάλειαν [ἀναι]ρούντων ἀγανακτοῦντες, ἀλλὰ κατὰ τῶν καὶ ἡν[ίκ’ ἠ]μύνοντο ἠτυχηκότων, ἠδικηκότων δὲ οὐδ’ ἔστ[ιν ὅτι]. ἀλλὰ νῦν_ ὀρθῶς ἄν μοι δοκεῖτε ποιῆσαι τῆι ἐμῆι π[ερὶ τού]των γνώιμηι {γνωμηι} προνοήσαντες καὶ τὰ ἐν τοῖς δημ[οσίοις] ὑμῶν ὁμολογεῖν γράμματα.ἔρρωσθε.59

While even this inscription is ambiguous, the basic outline is unproblematic. For whatever reason, the officials of the city of Knidos had charged Tryphera and her husband with murder instead of charging the nocturnal disturbers of peace. From Augustus’ choice of words regarding the questioning of slaves, it is clear that Tryphera claimed that they would not be able to get justice in Knidos. With no evidence on the attackers or the context of the case, it is impossible to say why the interrogation of slaves in Knidos would lead to a miscarriage of justice, but it is evident that Tryphera was up against some powerful men in Knidos. What is noteworthy is that Augustus underlines that the judgment has to be entered into the public records, thus forcing the city to acknowledge the decision. The fact that the inscription was not found in Knidos but on the beautiful island of Astypalaia may be because Tryphera or her descendants thought it better to move there after the case. Why the case came to Augustus is unclear; possibly 58 59

Discussed also in Millar, Emperor (1992 [1977]), 443. IG XII 3.174, ll. 28–39.

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because Tryphera had fled the city after being accused of murder.60 Nonetheless, Augustus takes up the case, appoints a very highranking official to investigate the matter, chamber pots and all, and gives a ruling, clearly intended to be the final word on the matter. A further interesting point is that Knidos is a free city, which would entail that it enjoyed considerable autonomy, even in jurisdiction, and it is debatable whether imperial jurisdiction would be recognized. As was typical of imperial jurisdiction later on, Augustus would introduce himself into the case with little regard for whatever privileges the city of Knidos had and resolve the issue where he saw justice and public peace threatened by the corrupt rulers of the city.61 In the letter, Tryphera plays the part of the vulnerable widow, driven from her home by ruffians, while Augustus appears as the avenging good king.62 It is hard to say whether Augustus actually applied Roman law strictly speaking to the case, as there is no mention what law would have been applied. The letter of Augustus prominently uses the terminology of Roman criminal law, speaking of manslaughter, accusations presented, interrogation under torture, and disturbing of the public peace. The principle that Augustus seems to be applying is that of lawful self-defence, which was also recognized by the Roman jurists.63 60

Wankerl, Appello (2009), 6 assumes that she was originally from Astypalaia. On this, see Colin, Villes libres (1965), 49, 86–9, but see also the review by H. W. Pleket (Pleket, ‘Review of Les Villes libres’ (1966), 155). Colin argues, following Viereck, that the free cities had capital jurisdiction. Because Tryphera was a citizen of Astypalaia, the case would have been between cities, not internal to Knidos. The case was given to Augustus because Tryphera was in Rome, giving Rome jurisdiction. Pleket and Bowersock, Augustus (1965), 88, argue that a ‘free status was little more than a honorific title’. Augustus and Roman provincial governors would interfere in cases in free cities, especially when petitioners argued that the courts were controlled by their opponents. Oliver, Greek Constitutions (1989), 38 curiously maintained that Knidos actually did not have capital jurisdiction and thus the case came to Augustus in the first instance. For example Nörr, Imperium und polis (1966), 29 writes that speaking of problems of competence is wrong, since both the polis and Rome had, in principle, universal competence and thus any conflict between the two was in essence political. 62 It has been noted that the letter contains no formal sentence as would have been typical later on, possibly reflecting the informality of the procedure. Volkmann, Rechtsprechung (1969 [1935]), 161–3; Wankerl, Appello (2009), 10. 63 Ulpian writes in Dig. 43.16.1.27: Vim vi repellere licere Cassius scribit idque ius natura comparatur: apparet autem, inquit, ex eo arma armis repellere licere. See also Dig. 9.2.45.4. 61

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Both of the cases demonstrate not only that there were petitions to Augustus from the provinces but also that Augustus could choose to respond to them.64 He was, in both cases, unfazed by possible procedural hindrances caused by jurisdictional issues or questions of what law should be applied to each case. Intervening in the affairs of cities, in both cases obviously against the wishes of the local magistrates and the powers that be, was not a concern, or if it was, it was not mentioned. However, Augustus did not undertake these incursions lightly, but sought to investigate the matter himself and underlines the care that he has taken in resolving the cases in his answers. In both instances there is an element of personal interest for Augustus, in the Cyrene case the suspicion of maiestas, and the personal appeal to him in the Knidos case. Augustus also demonstrates a personal interest in both cases, clearing the Roman official in Cyrene accused of wrongdoing and forcefully reproaching the officials of Knidos for allowing the disturbance of public peace. It is unclear whether Tryphera had been present at the time when the embassy of Knidos approached Augustus or at the sentencing, though she had clearly been heard personally, in writing or by proxy, and thus it is certain that she had at least had the opportunity to present her own petition to Augustus. Apart from these contemporary or near-contemporary accounts, most of the information on Augustus’ jurisdiction comes from Suetonius and Dio, both of whom present an image of Augustus as a hard-working judge. A challenge is to evaluate whether they are depicting Augustus along the lines of the emperors of their own era, one of whose major tasks was jurisdiction. It has been suggested that later writers like Suetonius were not interested in gradual historical development, and thus did not differentiate between adjudication during the triumvirate and the Augustan Principate and that Dio did not really understand or care about the development of imperial powers during the Early Principate.65 That is the main paradox of the evidence for Augustus as judge: we are left with two sets of sources, one from contemporary and near-contemporary authors which show him informally settling accounts among the elite or the provincials, the other from later sources depicting him as the diligent ideal judge. 64 Lintott, Imperium Romanum (1993), 116–17 suggests that the case came to Augustus outside any formal procedure for appeals. 65 Bleicken, Senatsgericht und Kaisergericht (1962), 74–5.

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In the legal sources, Augustus is mentioned to have acted in two cases regarding the validity of fideicommissa, but in both cases ordered the consuls to enforce their validity.66 Suetonius’ Augustus is a hard-working judge who heard appeals from all of the people. He judged regularly, sometimes late into the night, even in old age: He himself administered justice regularly and sometimes up to nightfall, having a litter placed upon the tribunal, if he was indisposed, or even lying down at home. In his administration of justice he was both highly conscientious and very lenient . . . Ipse ius dixit assidue et in noctem nonnumquam, si parum corpore valeret lectica pro tribunali collocata, vel etiam domi cubans. Dixit autem ius non diligentia modo summa sed et lenitate.67

According to Suetonius, Augustus referred to the city praetor appeals cases between citizens, whereas cases between foreigners went to exconsuls.68 Suetonius maintains that Augustus was detained in Rome by litigants, who brought case after case to his tribunal.69 His morning receptions were open to all, even the commoners. In keeping with the role of munificent patron, Augustus made a point of appearing generous while responding to petitions.70 Dio paints a surprisingly similar image of the judge Augustus as this indefatigable duty-bound monarch. He says that Augustus continued to sit in judgment personally, even in old age, seated in the tribunal in the palace surrounded by his assistants.71 On the roots of Augustus’ jurisdiction, Dio writes that as part of the honours voted him when his victory over Antony and Cleopatra was complete in 30 BC, with the conquest of Alexandria, it was decreed that he should judge appeals cases and that his should be the deciding vote in a case where the jurors are tied in all courts: They also decreed that Caesar should hold the tribunician power for life, that he should aid those who called upon him for help both within the pomerium and outside for a distance of one mile,—a privilege possessed by none of the tribunes,—also that he should judge appealed cases, and that in all the courts his vote was to be cast as Athena’s vote.

66 68 69

67 Inst. Iust. 2.23.1, 2.25pr. Suet. Aug. 33.1. Suet. Aug. 33.2–3; Volkmann, Rechtsprechung (1969 [1935]), 172–7. 70 71 Suet. Aug. 97.3. Suet. Aug. 53.2. Cass. Dio 55.33.5.

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[6] [σφᾶς ἐπ᾽ αὐτοῖς δέον, ὠνόμασαν. τήν τε ἡμέραν ἐν ᾗ ἡ Ἀλεξάνδρεια ἑάλω, ἀγαθήν τε εἶναι καὶ ἐς τὰ ἔπειτα ἔτη ἀρχὴν τῆς ἀπαριθμήσεως αὐτῶν νομίζεσθαι], καὶ τὸν Καίσαρα τήν τε ἐξουσίαν τὴν τῶν δημάρχων διὰ βίου ἔχειν, καὶ τοῖς ἐπιβοωμένοις αὐτὸν καὶ ἐντὸς τοῦ πωμηρίου καὶ ἔξω μέχρις ὀγδόου ἡμισταδίου ἀμύνειν, ὃ μηδενὶ [7] τῶν δημαρχούντων ἐξῆν, ἔκκλητόν τε δικάζειν, καὶ ψῆφόν τινα αὐτοῦ ἐν πᾶσι τοῖς δικαστηρίοις ὥσπερ Ἀθηνᾶς φέρεσθαι.72

The passage contains a fairly extensive list of jurisdictional duties for Augustus, from aiding (ius auxilii) to adjudication. While scholars have been sceptical about the historical veracity of the grant of appeals jurisdiction and the emperor being the final arbiter in all courts, they agree that it reflects the general development where the emperor would be the final decider of appeals.73 In describing the settlement of 28–27 BC, Dio portrays the creation of the role of emperor as a monarch in all but name, mentioning that he is able to put to death even equites and senators in the city of Rome: By virtue of the titles named they secure the right to make levies, to collect funds, declare war, make peace, rule foreigners and citizens alike everywhere and always,—even to the extent of being able to put to death both knights and senators inside the pomerium,—and all the other privileges once granted to the consuls and other officials possessing independent authority; and by virtue of holding the censorship they investigate our lives and morals as well as take the census, enrolling some in the equestrian and senatorial classes and erasing the names of others from these classes, according to their will. [6] καὶ εἰρήνην σπένδεσθαι, τοῦ τε ξενικοῦ καὶ τοῦ πολιτικοῦ ἀεὶ καὶ πανταχοῦ ὁμοίως ἄρχειν, ὥστε καὶ ἐντὸς τοῦ πωμηρίου καὶ τοὺς ἱππέας καὶ τοὺς βουλευτὰς θανατοῦν δύνασθαι, τά τε ἄλλα ὅσα τοῖς τε ὑπάτοις 72 Cass. Dio 51.19.6–7. Tr. Cary. Millar, Emperor (1992 [1977]), 509; Peachin, ‘Judicial Powers’ (2015), 500–1; Fanizza, L’amministrazione (1999), 11–60. 73 Mommsen (Mommsen, Staatsrecht (1871–1888), 2.2:958–9; Strafrecht (1899), 260–1 (2.9.1)) already saw it as the foundation of imperial jurisdiction, while among others Kelly, Princeps Iudex (1957), 15–24 rejected the reference being to a general grant of appellate jurisdiction. Since then, the issue of appellate jurisdiction or the calculus Minervae has been discussed at length; for a summary, see Reinhold, ‘Calculus Minervae’ (1981), 137–40. For various theories on the potential background, see Fanizza, L’amministrazione (1999), 11–60; Guizzi, Principato (1971), 114–20; Lintott, ‘Provocatio’ (1972), 263–6; Lintott, Imperium Romanum (1993), 117, discusses the possibility that the passage is an unhistorical retrojection, but maintains that it reflects the growth of the appeals, while Millar, Emperor (1992 [1977]), 509 accepted the granting of appeals jurisdiction and the general possibility of offering aid, but regards the Athena’s vote as a theoretical possibility.

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καὶ τοῖς ἄλλοις τοῖς αὐταρχήσασί ποτε ποιεῖν ἐξῆν, λαμβάνουσιν: [7] ἐκ δὲ δὴ τοῦ τιμητεύειν τούς τε βίους καὶ τοὺς τρόπους ἡμῶν ἐξετάζουσι, καὶ ἀπογραφὰς ποιοῦνται καὶ τοὺς μὲν καταλέγουσι καὶ ἐς τὴν ἱππάδα καὶ ἐς τὸ βουλευτικόν, τοὺς δὲ καὶ ἀπαλείφουσιν.74

What we have here again is another list Augustus’ of rights and duties. For Mommsen and his many followers, this was the foundation of his criminal jurisdiction.75 While Suetonius’ Augustus appears like a conscientious, though overworked, magistrate, Dio’s Augustus takes on a more monarchical air of being prone to whim and extra-judicial influences. Dio illustrated Maecenas’ good influence on him with an example: Augustus was holding court, preparing to condemn several people to death, when Maecenas walked in. Maecenas wrote on a tablet: ‘Pray rise at last, executioner!’ and threw the tablet into Augustus’ lap. Augustus read it and left, imposing no death penalties.76 The paradox of the two models of Augustan jurisdiction is thus the disagreement over its regular nature and execution. Nevertheless, there are a number of issues prohibiting the making of straightforward assumptions on the discrepancy. First of all, the authors, the elite poets, philosophers, historians, and others who represent our main sources are hardly comparable in their objectives. It is safe to say that Ovid and Seneca were not intending to say anything in general about Augustus’ jurisdiction, and thus that they turned their attention to highly unusual, irregular, and political trials is not surprising. However, it is remarkable that, according to both Suetonius and Dio, Augustus acted more or less like previous warlords, even as judge, during the triumviral period and the civil war.77 Even when speaking

74

Cass. Dio 53.17.5–7. Tr. Cary. The main issue is whether Dio is here speaking of the emperors in general or the powers granted to Augustus in 27 BC, or whether there is a difference. 75 See Peachin, ‘Judicial Powers’ (2015), 499–511, for a discussion around legislative grants of jurisdiction and other Mommsenian constructs. 76 Cass. Dio 55.7.2. 77 According to Suetonius, during the ten years he was triumvir Octavian first tried to prevent proscriptions, but since they had begun he participated in them with the greatest severity, insisting that no one should be spared. He also killed and tortured people on the flimsiest excuses. Suet. Aug. 27 Triumviratum rei constituendae per decem annos administravit. After his victory over Antony, Dio writes that Augustus punished some of Antony’s allies while pardoning others, either for personal reasons or as favours for his friends. Of the senators and equites, many were fined, others put to death, while he spared all the Egyptians. Cass. Dio 51.16.1, 51.16.3, 51.2.4–5. Josephus and Plutarch mention that Herod had tried to get Octavian to pardon

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of later periods, they distinguish between regular jurisdiction and political necessities.78 Finally, one needs to take into account the absence of information on Augustus as judge from the more contemporary historians. However, argumentation based on the silence of sources is not good history. Thus, we cannot say that contemporary sources prove that there was no real constitutional basis for Augustus’ jurisdiction, that it was mostly based on response and ad hoc actions. Nor can we say conclusively of the later accounts of Augustus that the image of Augustus as judge reflects more the Antonine and Severan conventions of virtue and prerogative than the actions of Augustus himself. Instead of trying to argue from the absence of sources, we are left to work with what the sources actually tell us, namely the understanding of their authors that may or may not reflect the common understanding at the actual time of the historical situation. Ovid’s eyewitness account is his take on the historical situation in which he was tragically embroiled, and it reflects the idea of ad hoc jurisdiction. The inscriptions reveal Augustus as the supreme ruler in the eyes of the provincials, controlling single-handedly both Roman administration and lawsuits in the provinces. What the accounts of Suetonius and Dio show is that, according to their historical understanding in their time, Augustus already had routine jurisdiction, but they are the first to mention it. It is, of course, debatable whether the strict separation between routine and ad hoc jurisdiction is purely a modern preoccupation, but the difference between contemporary and later sources is drastic even in the Roman sources.

IDEOLOGICAL CONSTRUCTION FOR AN IMPERIAL LEGAL ROLE: LIVY AND AUGUSTUS’ RES GESTAE In the example of Augustus, we are in the fortunate position that we do not need try to balance later sources based merely on the writings of a whiny poet like Ovid or a couple of provincial inscriptions. The Alexas, but despite the lavish gifts he otherwise gave Herod, Octavian would not grant this wish. Joseph. AJ 15.6.7; Plut. Vit. Ant. 72.3–4. 78 In 18 BC Augustus executed a few men because they were involved in plots against him and Agrippa. He kept Lepidus alive to be taunted. Cass. Dio 54.15.4.

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reason for this is that we do have Augustus’ own account on how to define the constitutional basis of his rule. In the Res gestae,79 Augustus presents his own view of his position and powers in the newly formed Roman state. Also called ‘The Queen of Inscriptions’ by Mommsen, the epigraphic text contains the full account of the public life of Augustus. The work is traditionally divided into three parts: honores, the honours or offices he held; impensae, the expenses or how he enriched Rome and its people; and res gestae, the things he had done—though the division is not rigid.80 If both his contemporaries and later observers were confused regarding the nature of Augustus’ Principate, Augustus has not really helped to clarify things. His opaque prose subdues clarity with grand words and is a challenge to understand. However, the account also tells of experimentations in finding a suitable relationship with the Senate and the people. The impression one has from this is that the rule of Augustus was legitimized by references to various powers and offices that Augustus held, but it was not actually based on any of them. Even though the account lacks any reference to Augustus’ jurisdiction, it is central to any understanding of his role in Roman society and law. In the following discussion I will explore the inner contradiction or dualism in Augustus’ relationship to law in the text, where he is presented both as a regular Roman magistrate and an exceptional leader with extraordinary authority. Through a reading of the legally relevant passages of the Res gestae, I will argue that it offers a constitutional blueprint for the new regime that rejects sovereign power while embracing the centrality and superiority of Augustus. What emerges is Augustus’ exceptionality, whose actions are exemplary in the sense that they create a constitutional narrative of power. This reveals a curious construct, that can be defined as republican exceptionalism combined with an adherence to legalism and tradition with the extraordinary honours, offices, and powers that were granted to Augustus.81

79 The most recent texts are Cooley, Res Gestae (2009); Scheid, Res Gestae (2007). See also Brunt and Moore, Res gestae (1967); Belloni, Res Gestae (1987); Gagé, Res gestae (1935) and Mommsen’s editio princeps (Mommsen, Res Gestae (1883)). New fragments of the RG were found recently: Thonemann, ‘Copy of Res Gestae’ (2012), 282–8. The references are to Scheid, Res Gestae (2007). 80 Ramage, Nature and Purpose (1987), 17. For a historiography and commentary of the text, see also Ridley, Emperor’s Retrospect (2003). 81 All this was naturally joined with the idea of a restored Republic; Hurlet and Mineo, Principat (2009). As Sulla had already found out, claiming to be restoring the

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The importance of looking at the image presented by Augustus of his position and his powers in understanding the creation of imperial jurisdiction stems from the very fact that there are no reliable contemporary sources that attest to how Augustus gained jurisdiction in the first place. Of course, the existence or non-existence of this jurisdiction is quite independent of any justification that either Roman or modern authors would devise for it. Thus it is vital to see how Augustus positioned himself towards and within the Roman legal system in order to understand his impact on it. It is not the individual powers and justifications, but rather the totality of his approach upon which the revolutionary change in the Roman legal system was founded.82 The contradictory images of Augustus as a Roman magistrate or a despotic ruler, as a benevolent father or a cruel monster, presented by Ovid and elsewhere in Roman literature were, of course, rhetorical constructs reflecting not only a facet of what Augustus was thought to have been but also what was expected, hoped, and feared of him. While we may concur with the view that the Principate of Augustus not only defied definition but that defining it would accomplish very little, as the crucial question is not what it was but what it did, such definitions were not without significance in determining what it could do. The way Augustus portrays his resurrection of the Republic in the Res gestae is complemented by Livy’s portrayal of the Early Roman Republic in his Ab urbe condita. Livy presents an idealized image of the Republic with a pertinent moral admonition on the dangers of self-interested sovereign rulers. The portrayal of Cincinnatus the dictator, who serves purely the interest of the commonwealth (3.26–9), and other superheroes of early Roman history is contrasted with the figures of Tarquinius Superbus and the second set of decemviri. Both of these are clear warnings of the dangers that unchecked powers of evil rulers may bring, with the unfortunate, if stereotypical, figures like Lucretia and Verginia serving as sacrificial lambs on the altar of freedom (1.57–60; 3.44–8). The truly remarkable feature of the Livian narrative of the exalted days of early Rome is its outright

Republic while changing it was extraordinarily hard without an appealing ideological foundation. Flower, Roman Republics (2010), 95–6, 137–8. 82 This was already argued forcefully by Orestano, L’appello civile (1952), 181, 195.

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hostility towards sovereign power held by individuals. The repeatedly underlined lesson of history in Livy is that unlimited power leads invariably to tyranny. The fact that this narrative proved to be so prominent exactly when the unlimited power held by an individual was being consolidated makes it even more noteworthy. In the Res gestae, Augustus parallels the Republican narrative of Livy in a way which most likely is not coincidental, but rather a conscious counternarrative to the tradition of single rule reflected in Ovid’s writing to Augustus.83 While Augustus is silent about his own jurisdiction in the Res gestae, the narrative of Livy utilizes the exercise of jurisdiction as a focal point in which the tyrannical nature of the ruler is revealed or where the magistrate upholds his virtue and honour. Two of Livy’s villains, Tarquinius Superbus, the last king of Rome, and Appius Claudius the decemvir, are brought down by their misuse of jurisdiction to their own advantage. In the first case, the rape of the virtuous matron Lucretia by Sextus Tarquinius, the son of Tarquinius Superbus, and her subsequent suicide because of the impossibility of getting justice in any other way, led to the overthrow of kings.84 As judge, Appius Claudius decemvir made a sovereign ruling in the case of Verginia, a virtuous and beautiful plebeian girl he wanted, reducing her to slavery. In the story, the girl’s father uses his paternal power and kills her to preserve her freedom and virtue, leading to a revolt against the decemvirs.85 In both cases, the corruption of justice by despotic rulers becomes a fundamental rupture in the whole regime, leading to its violent collapse. The good magistrate, on the other hand, is incorruptible and judges according to the law, despite any personal feelings or considerations. Thus, the last of the Horatii is sentenced to death after the killing of his sister, despite having saved Rome from defeat.86 The importance of examples is highlighted by Augustus’ claim in the Res gestae that new laws were passed on his proposal that brought back many exemplary practices which were disappearing, and that he 83 Luce, ‘Livy, Augustus’ (1990), 123–38 doubts the close connections between Livy and Augustus and points out the significant ways in which their narratives of early Rome differ. Pausch, Livius und der Leser (2011) explores the position of Livy between history and literature. 84 85 Livy 1.57–60. Livy 3.44–8. 86 Livy 1.24–6. The decemviri would make more constitutional overreaches, abolishing provocatio and ignoring term limits.

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himself created exemplary practices for posterity to imitate.87 This enigmatic statement has prompted numerous interpretations, which are impossible to repeat here. Following the two versions of the text in Latin and Greek, they may refer to Augustus wishing to be seen as an example himself or that he referred to his policies. While the term ‘new laws’ has, since Mommsen, been understood as meaning Augustus’ moral legislation, lately this has been seen as a reference to Augustus himself, his legislation and reforms, as well as his evocation of the past.88 The exemplarity of the past is also evident in the Forum of Augustus, where the summi viri were collected as an idealized version of Roman virtue.89 What is important for our purposes is that Augustus stressed the exemplarity of his own actions, underlining the significance of practice. One of the most problematic references to the virtuous past is the much-discussed restoration of the Republic.90 In the Res gestae, Augustus claims that in 28–27 BC he was, ‘with universal consent’, in complete control of affairs and transferred the Republic back to the Senate and the people of Rome.91 Because of this he was given the name Augustus, the laurel wreaths, and the civic crown.92 This build-up leads to what is constitutionally the most significant passage: then he excelled all in influence (auctoritas), though not in 87

RG 8.5. Legibus nouis me auctore latis multa exempla maiorum exolescentia iam ex nostro saeculo reduxi et ipse multarum rerum exempla imitanda posteris tradidi. 88 The main problem is, of course, that the Greek version says that Augustus himself was the example, whereas the Latin speaks of many examples. See Ridley, Emperor’s Retrospect (2003), 109–12 for an overview of the various interpretations. Grelle and Fanizza, Diritto (2005), 366, argue that RG 8.5 was one of the final instances where imperial law would use the oligarchical model of exemplum and its metahistorical horizon, as the later imperial norms would be seen as statutes. 89 Geiger, Hall of Fame (2008); Shaya, ‘Public Life’ (2013), 83–110. 90 The whole idea of Augustus claiming to be restoring the Republic is somewhat dubious; see Rich, ‘Emergency’ (2012), 106–11. A coin by Augustus was minted with the legend leges et iura p(opulo) R(omano) restituit (Mantovani, ‘Leges et iura’ (2008), 5 ff.). 91 RG 34.1 per consensum universorum potitus rerum omnium . . . For the widely different ways of seeing concepts like consent and power either legally or ideologically, see e.g. Börm and Havener, ‘Octavians Rechtsstellung’ (2012), 202–20; Cascione, Consensus (2003), 82–127 and Lobur, Consensus (2008). Earlier interpretations of this passage, such as by Premerstein, Werden und Wesen (1937), 43, 63, interpreted it as a way of saying that there had been a coniuratio. 92 RG 34.2. He was also presented the clipeus aureus, on which the virtues of Augustus, virtus, clementia, iustitia, and pietas, were inscribed. A similar shield, a marble clipeus virtutis, has been found in Arles, Musée départemental Arles antique, inv. CRY 51 00 95.

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power (potestas), that he had as much as the other magistrates.93 This passage has produced a flurry of explanations that see the juxtaposition of these two elements as keys to understanding the Augustan Principate.94 The scholarly explanations can be divided into two groups, based on their view of Augustus’ motivations. The first group sees the resurrection of the Republic as a cynical charade. They claim that this formulation is simply Augustus’ attempt to convey the traditional nature of his powers and it shows Augustus at his most deceitful. What the content of the text in fact referred to was not the universal agreement of the Roman people but the extermination of the armed opposition to Augustus by the end of the civil wars. With regard to the extraordinary honours, powers, and magistracies bestowed upon Augustus, they claim that the whole Res gestae is monarchical, identifying the personal life of Augustus with that of Rome, and that the passage about universal consent is an attempt to counteract that image.95 Of course, Augustus was hardly the first to claim to be restoring the Republic. The triumvirs had declared already their task as the confirming of the Republic (Triumviri Rei Publicae Constituendae), an echo of Sullan dictatorship and what Cicero expected of Caesar.96 Nonetheless, what Augustus does is to combine two very different things, a very charismatic statement of common support with the re-establishment of the pre-existing order.97 The second group of explanations maintains that instead of being a devious plot to disguise the true despotism of the regime, there was some truth to the preservation of the Republic presented in the Res gestae. Some explain that the reference to auctoritas was a sign of Augustus’ superiority to all contemporaries that is constantly advertised in the text. Auctoritas in its various forms was the only form of 93

RG 34.3. Post id tempus auctoritate omnibus praestiti, potestatis autem nihilo amplius habui quam ceteri, qui mihi quoque in magistratu conlegae fuerunt. See also Woodman, ‘Note on Res Gestae’ (2013), 154–5. 94 See Ridley, Emperor’s Retrospect (2003), 220–1 on the futile attempts at finding a distinct moment or event of consensus. 95 Ridley, Emperor’s Retrospect (2003), 222–7. 96 Kienast, Augustus (2014), 33; Flower, Roman Republics (2010), 137. What, for example, Flower, Roman Republics (2010) maintains is that the idea of restoration is deeply imbedded in the whole idea of the Roman Republic, which is by itself a wholly illusory concept linking together completely different political and social regimes. 97 Guizzi, Principato (1971), 70. Arangio-Ruiz, Storia (1982), 220–1 maintained that the main gist of the passage was the protection of the established order.

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supremacy that was compatible with the republican context,98 and that consensus was already a crucial concept in the Roman political discourse during the Republic.99 Constitutionally, this would mean that the princeps was considered to be bound by laws in his actions.100 Instead of being a defined power, auctoritas was a social quality, the ability to exert power through appearances.101 It has been noted that the rise of auctoritas as the pre-eminent quality of the Augustan Principate rests on the Res gestae itself, as the word has no similar prominence elsewhere.102 For the foundation of Augustus’ jurisdiction, this passage is important as it appears to deny any official grant of jurisdiction, but leaves open the influence of authority. A similar theme continues in Augustus’ portrayal of the virtues that he represents and honours bestowed on him. Of his virtues, iustitia underlined both Augustus’ constitutional and legal adherence to the Republican model: he both obeys the institutions and follows the laws, not accepting extraordinary positions.103 Others argue that Augustus had the supreme skill of having it both ways, being both extraordinary and ordinary at the same time.104 According to the Res gestae, the Senate, the equestrian order, and the people of Rome gave him the title pater patriae (Father of the Fatherland) in 2 BC.105 Augustus was thus an ordinary magistrate who had accomplished extraordinary things, as did Livy’s Republican heroes. This extraordinary ordinariness, of being of the people but possessing a superior authority, and making these almost theological distinctions of character and status was a way of establishing superiority without resorting to the obvious, the language of sovereignty. This appearance is strengthened by the fact that, in general, the text of the Res gestae is straightforward and to the point, and very pointedly uses the first-person narrative, concentrating the reader on Augustus and Augustus alone as the focus of action, even when it is the Senate

98 On this discussion, see Ramage, Nature and Purpose (1987), 43–54; Scheid, Res Gestae (2007), 91–2; Fanizza, Autorità (2004), 51–6. 99 Lobur, Consensus (2008), 31, 221, emphasizes the teleology of the idea. 100 Eck, ‘Emperor’ (2016). 101 Lowrie, Writing, Performance, and Authority (2009), 286. 102 Rowe, ‘Reconsidering Auctoritas’ (2013), 3. 103 Ramage, Nature and Purpose (1987), 86–91. 104 Galinsky, Augustan Culture (1996), 49. 105 RG 35.1. Alföldy, Vater des Vaterlandes (1971).

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that orders him to do something that he himself had quite certainly instigated.106 The contrast between the insistence on the republican model and what even insiders to the imperial system like Ovid felt to be a correct assessment of the situation is quite striking. It does not even occur to Ovid—who was, after all, masterful in his use of irony and nuances— to use the republican model insisted upon by Augustus. Instead, he opts naturally for the language of unfettered single rule, where Augustus, as the wielder of sovereign power, is a godlike figure possessing godlike powers over the life and death of all mortals. Like Cicero before him and Seneca after him, Ovid conceptualizes the omnipotent sovereign ruler as having two natures, the kind father and the savage monster. How much may the Res gestae be seen as a constitutional model? In the recent literature there has emerged a theory that the Res gestae may be understood as a constitution of sorts, in that it imposes a model of the Principate both on Augustus’ successors and the Roman people,107 and that it employs the forms of presentation normally reserved for legal texts, being inscribed in bronze in the West and in marble in the East.108 This issue is closely linked with the underlying purpose of the Res gestae, which has been much debated. We know that after his successes in the civil wars Octavian found himself with a reputation for cruelty and vengefulness. It is possible that he wished to counter these allegations with a propaganda offensive, parading his virtus, clementia, and iustitia in an account of his own. Much like the coinage he issued, the Res gestae portrayed a new self-representation of Augustus the ruler and his past, now that there was no one left to contradict him.109 The constitutionality of the text is embedded into the narrative, where themes like the title of the ruler or his powers are mentioned. For example, the title of princeps, the accepted depiction of Augustus’ role as the leader of the Roman Republic, comes up in an oblique 106

Ramage, Nature and Purpose (1987), 21–7, 36. Scheid, Res Gestae (2007), lii–liii. Cf. e.g. Hahn, ‘Neue Untersuchungen’ (1958), 137–48. 108 Peachin, ‘Augustus’ (2013), 255–76. 109 Another thorny issue is the intended audience of the Res gestae. A theory by Gagé maintained that the Res gestae was meant for the Roman plebs was already criticized by Belloni, Res Gestae (1987), 54–7, who maintains that there were passages aimed at the Senate and the equites as well. Yavetz, ‘Augustus’ Public Image’ (1984), 2–3, 5, 8, 19–20, supported by Ridley, Emperor’s Retrospect (2003), 232, claims that it was the youth of the nobility of Rome, the future leaders, that Augustus wished to educate with his exemplum. 107

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fashion three times. It is first mentioned while describing the closing of the temple of Janus: it took place three times when he was the leading citizen or princeps.110 It is perhaps not a coincidence that the chosen title of Augustus, princeps, contained a reference to Cicero’s ideas of the princeps as the suitable way of combining republican and autocratic models.111 On the powers of the ruler, the Res gestae offers guidelines on what was acceptable in terms of auctoritas, imperium, and other forms of power.112 Auctoritas could be supreme, but imperium as the power to command should be limited.113 According to the Res gestae, the Senate gave Octavian imperium when he was 19. This imperium was unrelated to an office, though he was given consular rank. Between the years 27 and 19 BC, the issue of Augustus’ imperium and its factual, temporal and geographical limits was a source of constant constitutional adjusting.114 What is clear is the extraordinary accumulation of powers that the Res gestae demonstrates. The use of the imperium should be tempered with clementia, as Augustus mentions how, in war, he spared the lives of citizens who asked for mercy.115 As has been noted, evidence to the contrary abounds.116 It is perhaps this glaring contradiction within the public perception of Augustus that Ovid sought to utilize, seeking to take 110

RG 13. Slightly later, it comes up twice, when the Pannonians are subjugated for the first time and when foreign kings seek friendship. RG 30.1, 32.3. See also Serrao, ‘Modello di costituzione’ (1991), 36 on the numerous titles and the apparent difficulty in finding a suitable concept for his hegemonic position. 111 Bleicken, Senatsgericht und Kaisergericht (1962), 133: ‘Augustus wollte in den Augen der Öffentlichkeit auctoritate princeps sein—wie etwa Cicero—und nicht potestate Monarch.’ See also Cooley, Res Gestae (2009), 161. The term princeps was probably also an appropriate term because consulships and other magistracies were liable to change. 112 Cf. also Serrao, ‘Modello di costituzione’ (1991), 39–42. 113 The centralization of the power to command had been a central feature in the reigns of Sulla, Pompey, and Caesar, see Vervaet, ‘Monopolisation’ (2012), 123–47. 114 RG 1.2. The imperium maius quam proconsulare was granted in the settlement of 23 BC and given for life in 19 BC (Cass. Dio 53.32). On the imperium proconsulare, there is now an interesting new source, the tesserae Paemeiobrigensis, an edict of Augustus: Costabile and Licandro, Tessera Paemeiobrigensis (2002). Before that, Augustus was a consul from 27 to 23 BC. On the development of Augustus’s imperium, see Girarder, Rom (2007); Cotton and Yakobson, ‘Arcanum imperii’ (2002); Ferrary, ‘À propos’ (2001). 115 RG 3.1. 116 See Ridley, Emperor’s Retrospect (2003), 169 on the killing of captured enemies. See also the list in Volkmann, Rechtsprechung (1969 [1935]), 14–24 on the people punished between 44 and 27 BC.

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advantage of the desire of Augustus to cleanse his reputation from the horrors of the proscriptions. As noted by authors like Seneca, or even Dio two centuries later, Augustus was known as a cold, greedy, and ruthless killer as a young triumvir, the kind of omnipotent monster that would eclipse Polyphemus. Similar references to Augustus’ participation in proscriptions were highly effective because they, for a moment, exposed the fundamental crime of the new regime. For example, the story repeated later by Macrobius goes that, when Asinius Pollio heard that Octavian had written some verses against him, he replied in private that he would stay silent, because it is not easy to write about someone who can have you killed.117 The rejection of sovereign power is the main thread running through the Res gestae, but within the refusals there also lies the honour of refusing an honour. In the detailed display of the offices and honours that are clearly rejected, such as dictatorship and the legum et morum cura, there is an unspoken assumption that Augustus thinks himself worthy of such a position. The dictatorship was offered by both the Senate and the people in 22 BC, and refused twice, first in his absence and second when he was present.118 The appointment to the legum et morum cura, to be the supervisor of laws and morals without a colleague and with supreme power, he refused as inconsistent with mos maiorum in 19, 18, and 11 BC.119 Remembering the vicious attacks on Antony by Cicero on the offering of the diadem to Caesar, it is likely that Augustus ensured that the honours he accepted did not stray far from the Republican tradition.120 117

Macrob. Sat. 2.4.21 non est enim facile in eum scribere, qui potest proscribere. RG 5.1.3. Dictaturam et apsenti et praesenti mihi delatam et a populo et senatu, M. Marcello et L. Arruntio consulibus, non recepi. . . . Consulatum quoque tum annuum et perpetuum mihi delatum non recepi. 119 RG 6.1 ut curator legum et morum summa potestate solus crearer, nullum magistratum contra morem maiorum delatum recepi. See Eder, ‘Augustus’ (1990), 103–4, 116, on how the relationship between the princeps and law was defined by both Caesar’s unfortunate dictatorship and the propaganda war with Antony. 120 The tendency of Augustus to favour Republican forms of operation was even recorded by later historians. Tacitus (Ann. 1.2) describes Augustus’ rule as domination, in which the tired Republic submits to servility while the shell remains. According to Suetonius, Augustus strictly prohibited deviations from the Republican forms of address and forbade using the word dominus (master, also master of slaves), which was used, for example, of Caesar’s autocratic ambitions (Suet. Aug. 53.1). Suetonius gives the impression that Augustus wished to appear as much a common man as he could, giving testimony in court as any man and voting with his tribe like a regular citizen (Suet. Aug. 56.1). 118

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As mentioned, there is a glaring absence in the text of the Res gestae to any reference to Augustus as judge or exercising jurisdiction. While tempting, to make such arguments as that the exercise of jurisdiction was a routine part of the duties of consul and thus not mentioned, amounts to filling the silence with imagination, a practice little better than an argumentum ex silentio. One possible explanation is that the sovereign adjudication was a part of the model based on the unfettered power of the ruler and thus ill combined with the Republican model that Augustus sought to present.121 Thus the main issue was not the real or factual character of the regime, but the appearance that it presented. According to this theory, Augustus as princeps regarded his role as a performer on the public stage, conducting ceremonies and performances as representations of his role. Consequently, how it was seen was more important than what was done.122 Augustus wanted to be seen as the leading citizen of a Republic of Virtue, who led by his auctoritas. Thus one should not interpret the theme of the good emperor as simply a façade that masked the realities of power. Though the imperial power was increasingly absolute and the model of a combination of individual powers and general auctoritas began to fade, the following emperors kept up this image. The theme was formed by senatorial hopes and demands for the emperor to be just the first among equals, and for a very long time emperors acted against it only at their own peril.123 In fact, Tiberius and a number of other emperors explicitly mentioned that they were emulating the way Augustus ruled.124 The afterlife of Augustus as the example of imperial legal rule would become a fundamental aspect of the creation of imperial administration.125 The strong emphasis that Augustus laid on the Republican tradition was without doubt a reason why it continued to be such a central part of the self-understanding of the imperial system of

121 It has been claimed that, with the first offer of legum et morum cura in 19 BC, the Senate had recognized the Principate. Though a number of theories have been made on the possible implications that the offer had, Syme’s point of it being a power not needed is still accurate. Ridley, Emperor’s Retrospect (2003), 106–7; Parsi-Magdelain, ‘Cura legum’ (1964), 373–412; Syme, Revolution (1939), 443. 122 Sumi, Ceremony and Power (2005), 220–62; Hurlet and Mineo, Principat (2009). 123 Gradel, Emperor Worship (2002), 109–10. 124 Tac. Ann. 4.37.3; Peachin, ‘Exemplary Government’ (2007), 80. 125 As already noted in Hahn, ‘Das Kaisertum’ (1913).

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governance. What Ovid and later Seneca demonstrate is the ascendance of the model of sovereign rule as a way of conceptualizing the emperor’s power, a model which directly contradicted the concept of republican exceptionalism used by Augustus. The final iteration of Augustus’ judicial powers, the famous speech of Maecenas in Dio (52.31–3), not only establishes jurisdiction as one of the key pillars of imperial power, but equally underlines Augustus’ sovereignty towards the law. There are, of course, numerous constitutional models and theories that could be used to describe the historical development initiated by Augustus. One of the main distinctions is whether the aim is to restore the existing order through the use of exceptional means such as the state of exception, or to establish a new social order to replace the old one.126 Another issue is the relationship between the ruler and the people, whether the sovereign ruler seeks the support of the people for his regime or whether its main support is the armed forces and the administrative elite.127 The chief difficulty in utilizing these theories is that they were formulated to explain and analyse modern totalitarianism.128 Some of these theories are based on the idea of popular sovereignty expressing itself through the actions of the sovereign ruler. Augustus, of course, did all of these things, or at least alluded to them. He created a new order, but claimed to be restoring the old through exceptional means. Support for the regime was sought by courting the people, the equites, and at times the Senate. The imperial ideology coupled with the pomp and circumstance of the imperial court was one of the main components of the new rule that distinguishes it from the Republic and undermined the argument of republican continuity. In Augustus’ formulations, many of the important elements of the later monarchical system of the Principate,

126

Schmitt, Diktatur (1964) calls these commissarial and sovereign dictatorship. On the intellectual history of Caesarism and Bonapartism, see Baehr and Richter, ‘Introduction’ (2004), 2–7. While Syme had used the dominant political parties of Fascist states as a parallel to the reliance of the Augustan state on the new elite, Yavetz, ‘Augustus’ Public Image’ (1984), emphasized the connection between Augustus and the people as a whole. 128 However, analysis of modern totalitarianism was founded on a reading of early modern scholarship, which was based on a reading of ancient sources. The classical analysis is still Schmitt, Diktatur (1964). On the issues this causes, see e.g. Cobban, Dictatorship (1971). 127

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such as the cult of the ruler, the divine family, the idealization of the house of Augustus, the collegia, issues of coinage idealizing the emperor, and so on can be found in their early forms. Similarly, Augustus’ massive building programme crystallizes the new centrality of the ruler.129 Thus it is not surprising that observers could easily be confused. The schizophrenic nature of the imperial regime, which presented the two radically conflicting narratives of continuing republicanism and the near-divine imperial glory, led to repeated conflicts between the ideals and practices linked with both narratives. A good example of this nature is the use of adjudicative power by Augustus in the case of Ovid. Contemporary sources, such as Ovid’s own description of the events and Augustus’ Res gestae, lead to the conclusion that this was far from being a case of routine administration, but rather a personal choice on the part of Augustus. As such, the act of relegating a person through imperial fiat strengthened the impression of justice being solely dependent on the will and favour of the emperor and thus the narrative of omnipotent monarchy.

CONFLICTING NARRATIVES OF JURISDICTION In modern scholarship, opinions have been divided over the constitutional foundation and the exact nature of Augustus’ jurisdiction: there appears to be an agreement that the sources are ‘extremely disappointing’,130 but whether we have the ‘slightest basis for statements’131 about it has been contested. I will approach this very complicated situation through the analysis of the different narratives that form our main sources. Ever since Mommsen, the answer has been that Augustus’ jurisdiction was based on a combination of reformulated Republican powers and some new additions through legislation. Because the only source for the new additions is Dio’s account of jurisdiction over appeals (51.19.7), the weight of the arguments has been on the reformation of the Republican concepts of imperium and auctoritas, based on Augustus’ Res gestae. In the most recent interpretations, there have been suggestions that instead of a single 129 130 131

Crook, ‘Augustus’ (1996), 133–8; Zanker, Power of Images (1990). Peachin, ‘Judicial Powers’ (2015), 507. Millar, Emperor (1992 [1977]), 509–10.

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grant of jurisdiction, there might have been a process through which Augustus would have gradually gained jurisdictional powers.132 In this section, I will first survey the potential constitutional foundations for Augustus’ jurisdiction such as imperium, auctoritas, and the power of paterfamilias, and evaluate the theories on legislation as a foundation for this jurisdiction. Then I will discuss whether Augustus’ jurisdiction was a regular feature or a power used on an ad hoc basis. Through this foundation, I will argue that instead of being purely a continuation of old practice or new innovation, jurisdiction emerged through a complex discourse where different elements of various traditions and practices were experimented with, combined, and changed. Thus, it is vital to examine not only the foundation of Augustus’ jurisdiction or how he used it, but also how it appeared to the Roman world and how it was discussed. The relevance of this issue stems from the idea of legality. It would appear that, especially among the older generation of scholars, few would accept Honoré’s succinct statement that we know that Augustus acted as a judge, but whether he had any formal authorization to do so, such as a magistracy at any given point, is unclear. Thus, for lack of evidence, we should consider his jurisdiction usurped.133 If there was no constitutional foundation for his jurisdiction, can one even call Augustus a judge? If a judge is understood as a magistrate applying the rules of law to individual cases, or a iudex, in contrast to a sovereign ruler making ad hoc political decisions regardless of law or legal precedent, where does Augustus stand? There are a number of grounds for saying that Augustus could have formally and constitutionally exercised jurisdiction. The first is that his imperium would have included jurisdiction; second, that his auctoritas would have given him jurisdiction; or third, that he would have had the jurisdiction of a paterfamilias.134 Additionally, because Augustus had since 23 BC the tribunicia potestas, it could be understood to have contained the power of auxilium and jurisdiction on appeal. The perplexing feature of all of these explanations is that they

Peachin, ‘Judicial Powers’ (2015), 506–8. Honoré, Emperors and Lawyers (1994), 8. 134 These theories were already summarized in Volkmann, Rechtsprechung (1969 [1935]). What is noteworthy is that many of these powers were completely separate from a magistracy. 132 133

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are all more or less convincing, rest more or less on actual Roman sources, and finally, are not mutually exclusive. To confuse the matter further, an example may be presented to show that the jurisdiction of Augustus would have been general and not limited in any way, that it would have been special and thus limited to members of the imperial household or issues of maiestas, or that it was ad hoc, meaning that Augustus could have taken cases as he saw fit. What I am trying to demonstrate is that the formalistic and realistic arguments, arguments based on what Augustus was authorized to do and what he actually could do or did, are parts of a complex narrative of power in which references to certain traditional offices and powers were utilized in a polyphonic discourse engaging Augustus, his advisers, the Roman and provincial elite, and the various sectors of the Roman people. While Augustus may advance a narrative in which he exists in a continuum of republican tradition, for those, like Ovid, who meet the business end of his executive power, the view is markedly different. For the provincials, whose experience of Roman power had always been the all-powerful governor, petitioning the lord and master of all governors was no different than petitioning a sovereign, no matter what that sovereign might be among his own people. Augustus, when resolving a case such as the one presented in the Knidos inscription, corrected an obvious injustice and, like a provincial governor, punished those who had disturbed the peace. However, the possibly unintended consequence was that he also assumed the role of the good king promoting peace and justice for the provincials.135 The theory of jurisdiction based on imperium is the oldest of the three. Theodor Mommsen saw the criminal and civil jurisdictions of the emperor as facets of his personal powers. He claimed that imperial jurisdiction was based on the ancient imperium of the kings, which included jurisdiction.136 Later it was suggested that Augustus received

135 The Hellenistic narrative of the ruler as the bringer of law or law incarnate would reinforce the image of the good king in the eastern provinces. But as Martens, One God (2003), 53 maintains, these influences on the Roman tradition should not be overestimated. As Volkmann, Rechtsprechung (1969 [1935]), 149 claims, the princeps would also in practice become the final court of appeals for the provinces. The role of the Senate in this development is crucial, but does not overshadow the centrality of the emperor. 136 e.g. Mommsen, Staatsrecht (1871–88), 1:163; 2.2:958–88; Volkmann, Rechtsprechung (1969 [1935]), 206; Peachin, Princeps (2005), 173. Mommsen’s views

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jurisdictional authority in civil cases in 19 BC as a part of his perpetual consular imperium,137 or that the emperor’s jurisdiction in the provinces relied on his imperium. In the imperial provinces the basis would have been the emperor’s imperium, while in the Senate’s provinces jurisdiction relied on the emperor’s proconsular imperium maius. In Rome and Italy jurisdiction was exercised through imperium consulare and its voluntary jurisdiction, though he had also, according to Dio, proconsular imperium within the pomerium.138 For all of these theories, the evidence is more or less anecdotal. A similar process of elaboration can be observed in the theory of jurisdiction based on imperial auctoritas. Its proponents saw the auctoritas of Augustus as a constitutional concept giving the emperor a wide range of powers, including universal jurisdiction.139 Its critics have maintained that this conception would wholly destroy the idea, pioneered by Mommsen, that Augustus created a monarchical power structure by combining individual powers, replacing it with the Severan conception of imperial powers.140 The constitutional understanding of auctoritas would also give Augustus the power to change the law through his edicts and to instruct magistrates on how to exercise their jurisdiction.141 Auctoritas was, of course, a central concept in the public image of Augustus. Defined as a para-constitutional term, it was used to connote a number of things, beginning with moral and intellectual authority to being an auctor, an initiator, and guarantor. In traditional Roman constitutional thought,

on the origins of jurisdiction were not consistent, see also Mommsen, Strafrecht (1899), 260–1 (2.9.1). The monarchical powers including jurisdiction in both criminal and civil matters would have been granted in the settlement of 27 BC (based on Cass. Dio 53.17.6), whereas appellate jurisdiction would have been voted to him as part of the honours granted in 30 BC (based on Cass. Dio 51.19.6–7, the famous passage relating to calculus Minervae). A criticism of Dio’s account, see Reinhold, ‘Calculus Minervae’ (1981), 137–40. Jurisdiction in the provinces would have been based on the imperium maius and so on. Mommsen’s theories were criticized early on by scholars like McFayden, ‘Princeps’ Jurisdiction’ (1923), 231–42. 137 Siber, Führeramt (1940), 5, based on Cass. Dio 54.10.5, recognizing the contradictions of Mommsen and others. 138 Cass. Dio 53.32.5; Wieacker, Römische Rechtsgeschichte (2006), 26. Jones, ‘Imperial and Senatorial Jurisdiction’ (1954), 476–88 seeks to trace the way in which imperium resulted in jurisdiction. 139 Volkmann, Rechtsprechung (1969 [1935]), 217–19. 140 Review of the Volkmann 1969 first edition published in 1935: Siber, ‘Zur Rechtsprechung’ (1937), 449. 141 Volkmann, Rechtsprechung (1969 [1935]), 209.

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the Senate was the traditional repository of auctoritas by virtue of being a body of experienced former magistrates and statesmen. Possessing auctoritas provided influence that was in turn crucial in bringing the various actors to consensus, as was the way Augustus operated. Even during the civil wars, he had sought the assistance of the Senate in gaining auctoritas, and always recognized its importance.142 One of the issues troubling the imperium or auctoritas approach is that they both rely heavily on Augustus’ Res gestae,143 which is a work of justification after the fact. How much it casts light on the actual situation is questionable, since it does not mention Augustus having jurisdiction at all, because that would have been inconsistent with the idea of the Republic. Of course, Augustus was equally the princeps senatus, a position that would have given him a role in the use of the jurisdiction of the Senate itself. The third option, jurisdiction derived from patria potestas, has a number of advantages, but its limitations are even greater. The theory goes that Augustus as pater patriae was the paterfamilias of the Empire, which would have made his court a household court and him the supreme arbiter of all things due to paternal power.144 The ideological position of Augustus as a patron of Rome, presiding over his familia, the Romans, has been established in fields like public munificence.145 Critics have recognized the role of Augustus as paterfamilias presiding over a household court, but limit its use to the familia and amici.146 How would this factor in with the instances where, for example, Augustus acts as the pater patriae in deciding inheritance cases, as mentioned by Valerius Maximus? Would Ovid, as a member of the court society, be considered a member of the familia Caesaris? Finally, we come to the formalistic theory that such a momentous change as the creation of the powers of the emperor could not have 142

Galinsky, Augustan Culture (1996), 12–14, 44. See Rowe, ‘Reconsidering Auctoritas’ (2013) on how much the RG’s use of auctoritas deviates from the norm. 144 RG 5.6.35; Sen. Clem. 1.10.3 compares Augustus as ruler to a father. The theory of the jurisdiction based on the power of paterfamilias was already outlined by Volkmann, Rechtsprechung (1969 [1935]), 217. See also Roller, Constructing Autocracy (2001), 244. Gradel, Emperor Worship (2002) discusses the idea of Augustus as paterfamilias of Rome. 145 Zanker, ‘By the Emperor’ (2010), 78. 146 Peachin, ‘Judicial Powers’ (2015), 502–3. Volkmann, Rechtsprechung (1969 [1935]), 107 places strict limitations on the scope of this kind of jurisdiction. 143

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been executed without legislation. While earlier scholarship had been committed to the idea that the powers of the emperor were conferred through a lex regia, as understood by Ulpian in the third century,147 from Mommsen onwards the role of legislation has been restricted to partial grants of jurisdiction, such as the oblique reference to appellate jurisdiction in Dio (51.19.7). The problem with these theories is that the laws are purely hypothetical, without any concrete foundation in ancient sources. Another way of approaching the conundrum has been through the lex de imperio Vespasiani. This is based on the interpretation that the lex de imperio Vespasiani would have been tralatician, meaning it would have been preceded by a series of similar laws, the earliest of which would have granted the powers of jurisdiction to Augustus by legislative act. The fact that the whole theory is based on the assumption of the existence of these earlier laws has limited its credibility, though it has its supporters. Because the only known lex de imperio, that of Vespasian, has no mention of imperial jurisdiction, the theory rests on a very shaky foundation.148 While much of previous scholarship was founded on the conviction that somewhere there lies a key to the emerging imperial jurisdiction, a key that is clearly defined and logical, what emerges from the sources is a much more complex picture. I would assert that instead of being solely dependent on any of the alternatives, the jurisdiction of Augustus relied on all of them (with the exception of the lex de imperio). While the underlying fact of the concentration of coercive power in the hands of Augustus ensured that, in the end, the will of Augustus would prevail, such blunt instruments were only a last resort. Instead, Augustus employed both the concepts and the practices of the Republican tradition to create something new. There were numerous precedents for the holder of executive power also being the supreme judge, for example, in the case of provincial governors being the last instance in adjudication, or that of petitions being directed to whoever was in a position of power in irregular conditions, as was discussed in the previous chapter. In addition to 147 Ulpian (Dig. 1.4.1) maintains that popular sovereignty was transferred to the emperor via the lex regia on his accession. 148 Hurlet, ‘Lex de imperio’ (1993), 261–80; Mantovani, ‘Les clauses’ (2005), 25–43; Ferrary, ‘À propos’ (2001). See also Michael Crawford’s review of Capogrossi Colognesi and Scandone, Lex de imperio (2009), where he wonders how chapters in the same volume disagree in whether there was a lex regia and whether the lex de imperio Vespasiani was it (Crawford, ‘Review’ (2012)).

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the customary ways of petitioning and responding to petitions, whenever litigants and people with complaints detected the opportunity of gaining an advantage, they were liable to take it. Thus, one should not underestimate the spontaneous element of seeking aid and, in the process, the hope of assigning jurisdiction to the person being petitioned.149 The Republican tradition of jurisdiction had, in addition to the practices of adjudication and petitioning, close links to the concepts of imperium and auctoritas utilized by Augustus in his quest to appropriately define his role. The main jurisdictional magistrates of the Republic, the praetor urbanus and the praetor peregrinus, held the imperium, which was the source of their power to command. The Senate, also an occasional court of law, held auctoritas, as did the magistrates. By assuming the same concepts as the defining attributes of his public persona, Augustus could either knowingly or inadvertently create the image of himself as the supreme jurisdictional authority. Since he maintained that his imperium was greater than that of regular magistrates and that his auctoritas was likewise greater than anybody else’s, all roads for those seeking a final arbiter on any matter lead to Augustus. Thus if one wishes to find a model of the practice of imperial jurisdiction, that would probably be the governor’s jurisdiction in the provinces,150 not least because the emperor used the cognitio process that had previously been used by provincial governors and had the power to choose his cases.151 In jurisdiction, authority and imperium were interlinked, because both auctoritas and imperium in themselves were perhaps deemed insufficient foundations for the creation of new jurisdiction. While Ovid’s case may be understood as a simple administrative act made by Augustus under his imperium, the provincial cases show Augustus responding on appeal to actual

149 Harries, Law and Empire (1999) depicts a similar process taking place in late antiquity, when various, originally extra-legal, forms of settlement were slowly formalized. 150 Ferrary, ‘À propos’ (2001), 129. Jones, ‘Imperium’ (1951), 117 sees jurisdiction as an element of imperium. 151 Buti, ‘Cognitio’ (1982), 35; Millar, Emperor (1992 [1977]), 517; Bleicken, Senatsgericht und Kaisergericht (1962), 80. The use of formulary process in the provinces was possible, see Kaser and Hackl, Zivilprozessrecht (1996), 466–71, with Hackl, ‘Zivilprozess’ (1997) arguing that the regular form of process in the provinces was the formulary process.

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legal cases. If there was a need to seek a foundation for Augustus taking up such cases, it would have probably been found in his imperium maius. However, since no such decision is known, we should be wary of ascribing such formal justifications where none may have existed. How did Augustus then use his jurisdiction? Augustus obviously had some jurisdiction, but scholars disagree whether this jurisdiction was a regular feature of imperial powers or something usurped when situations arose. The issue is complicated by the phenomenon that contemporary sources support the irregularity, whereas later sources and the weight of tradition support the regularity. There are virtually no contemporary sources showing that Augustus routinely exercised jurisdiction, and no direct source sheds light on the basis of his jurisdiction, constitutional or otherwise, as the main source on the constitutional powers of Augustus, the Res gestae, is silent on the matter. This leads to the suspicion that Suetonius and Dio, who portray him as regularly sitting in judgment, are actually reflecting the situation during their time of writing in the second and third centuries AD, respectively. According to some, with Augustus one already sees the routine nature of imperial jurisdiction: when the emperor took his place at the tribunal, he was directly approached by litigants with both civil and criminal cases.152 Critics say that, based on the evidence on the actual cases, it would appear that Augustus used his jurisdiction only for political purposes.153 The problem is that there are rather few references to Augustus exercising his jurisdiction, and consequently, estimating its regularity is difficult. The supporters of the idea of regular jurisdiction claim that the beginnings of imperial jurisdiction were based on Augustus’ deliberate policy of encouraging people to present their appeals to him. The appeals jurisdiction itself would have been sanctioned by his consular imperium and the Republican practice of consul’s jurisdiction, as well as the law of 30 BC mentioned by Dio (51.19.7). Suetonius’ (Aug. 33.3) comment on the delegation of appeals to consulars has been seen as proof of the policy of inviting appeals.154 The primacy of imperial

152 Routine jurisdiction, as described in the Digest, has been the traditional assumption among legal scholars, but is also supported by historians like Millar, Emperor (1992 [1977]), 530. 153 Kelly, Princeps Iudex (1957), 44, 62; Peachin, ‘Judicial Powers’ (2015). 154 Discussed in Volkmann, Rechtsprechung (1969 [1935]), 173.

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jurisdiction would mean that the Senate’s jurisdiction would have been secondary, with the Senate operating as consilium to either the emperor or the consuls. There are a number of problems with this theory, the foremost being the complete lack of sources regarding any encouragement, let alone instructions, to magistrates. Two references in the Digest to lex Julia on vis publica confirm the ongoing relevance of the right of appeal, the first (Dig. 48.6.7) holding liable any magistrate who executes or tortures a Roman citizen contrary to the right of appeal, the second prohibiting the accused from reaching Rome and exercising the right to appeal (Dig. 48.6.8). However, neither of the references mention whether the appeal would have been to Augustus. The crucial change in the development of appeals was the extension of the right of appeal beyond the circle of Roman citizens and the city of Rome.155 One of the main difficulties in the theories of regular jurisdiction appears to be how the universal imperial jurisdiction could be combined with the existing courts of law.156 To this, one may add the Augustan creation of the office of the prefect of the city, who had equal jurisdictional authority, but how the cases ended up with either of them is disputed, especially during the early years.157 In many situations, it is clear that modern observers are perplexed by the fact that there appears to be both Lintott, Imperium Romanum (1993), 117. See also Garnsey, ‘Lex Iulia’ (1966), 167–89. 156 There are numerous hypothetical constructions regarding the issues that might have occurred if these jurisdictions were combined. For example, Jones claims that the fact that Augustus is mentioned as having delegated appeals from Italy to the urban praetor would mean that appeals would have been possible only from the decisions of the iudex. Augustus’ jurisdiction in the first instance would have been limited and supplementary to that of the regular magistrates. The significant change would have been in the capital jurisdiction, where the regular jurisdiction would have rested on the iudicium publicum, but the emperor and consuls could take cases at their own discretion. Because the change in the basic principle of provocatio is so great, Jones claims that such a change could not have taken place without legislative basis. Again, sources attesting to that are not to be found. It is true that there was a significant change from the provocatio ad populum to appellatio ad Caesarem. However, even here the claim ‘This change again can hardly have come about without legislation.’ (p. 485) is unwarranted. Jones, ‘Imperial and Senatorial Jurisdiction’ (1954), 471–87. Kelly, Princeps Iudex (1957), 85, argues that apart from the maiestas trials, during the reign of Augustus imperial jurisdiction did not extend over the jurisdiction of regular courts, but fails to convince Volkmann, Rechtsprechung (1969 [1935]), 68. 157 Direct appeal by litigants seems to be a possibility, see Kaser and Hackl, Zivilprozessrecht (1996), 445–51; Vitucci, Ricerche sulla praefectura urbi (1956); Garnsey, Social Status and Legal Privilege (1970), 90–8; Jones, Criminal Courts (1972), 90–118. 155

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jurisdiction in the first instance and top-down delegation in which the emperor is petitioned and he delegates the case to subordinates, as well as bottom-up appeals in which the emperor is asked to reexamine the verdict of a lower court. What is clear is that, under Augustus, the civil and criminal courts continued to function as they had before, only that the emperor had become the supreme and ultimate judge, if he so wished. The crucial thing is that it was a shared conviction among Romans that the emperor was now the final arbiter and he could be appealed to in all cases.158 The attempts at explaining this role using formal Republican precedents such as the provocatio have by and large failed, as have endeavours to find some legislative basis for this role, beyond the account of Dio. Nevertheless, the emperor as the supreme judge and head of the legal order is the main formal difference between Republic and Empire.159 Willingly or unwillingly,160 Augustus managed to produce the appearance of being the final arbiter and jurisdictional authority through his policies, and that appearance was recognized in the Roman world. Despite the meagre sources, there is extensive hypothetical scholarship attempting to combine the accounts of Suetonius and Dio on Augustus’ regular jurisdiction, the delegation of jurisdiction to other magistrates, and his handling of appeals cases. One way of combining imperial and regular jurisdiction—the fact that, for example, imperial jurisdiction in criminal affairs was concurrent with several regular courts—was to elevate imperial jurisdiction to the position of a supreme court that would handle cases that had value as precedent. According to this theory, a case received imperial cognitio if the plaintiff or a court official so petitioned. The imperial intervention would be dependent not on the emperor’s political interest in the case, but rather the difficult nature of the legal problem.161 The other option would be that a case would come to Augustus if and when

158 Volkmann, Rechtsprechung (1969 [1935]), 171–3; Orestano, L’appello civile (1952); Spagnuolo Vigorita, ‘Repubblica restaurata’ (2007), 542. Again, it is very much an open question whether a regular appeal to the emperor existed in the strict legal sense during the time of Augustus. 159 Crook, ‘Augustus’ (1996), 122–3. 160 Mommsen, Strafrecht (1899), 277 (2.9.3), already doubts whether Augustus would really have wanted the burden of becoming the final instance in all cases in the empire. 161 Volkmann, Rechtsprechung (1969 [1935]), 89.

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Augustus so wished, based on petitions and pleading directed towards him.162 The main problem with the supreme-court theory is precisely this: it is probable that many cases coming to Augustus contained important, contested points of law, which he himself was incompetent to adjudicate satisfactorily without the help of jurists. The fact that Augustus apparently was so liberal in hearing petitions from the people (Suet. Aug. 33.1, 53.2, 97.3; Cass. Dio 55.33.5) would have made his involvement in the legal process potentially problematic. Though, according to Suetonius and Dio, Augustus delegated many questions to the urban praetor and ex-consuls, we know of no official who would have been given the task of answering petitions. Honoré, for example, is clearly uncomfortable with the idea that the emperor would have answered legal queries with unlimited power, potentially tending to find in the appellants’ favour.163 What Honoré has in mind is the classical Roman legal system working according to the rules of law as determined by legal experts. On this established system is imposed a sovereign ruler, who has the power to intervene in any case and on any level, and who could probably produce endless disruptions as his tendency to wish to please the appellants would lead to ever more litigants coming to him, hoping to get an advantage over their opponents. Despite the numerous theoretical assumptions on the regularity or irregularity of Augustus’ jurisdiction, the evidence on the practice of jurisdiction is very limited, and thus these theories remain theories. Even if we take the evidence provided by later historians like Suetonius and Dio at face value, which, as we have seen, many modern scholars do, there are no cases to which to link these assumptions. It would thus appear that the position of the emperor as the supreme judge was, for the most part, a theoretical possibility that would only later be actualized. How often petitioners did gain access to Augustus is a completely different matter, a matter that we are unable to address quite simply because we lack the cases. We should also 162 Kelly, Princeps Iudex (1957), 89, like Orestano, L’appello civile (1952) draws this power from the auctoritas of Augustus. 163 Honoré, Emperors and Lawyers (1994), 5–6: ‘the text does point to a freewheeling attitude on the part of some first-century emperors towards the granting of petitions in cases where, as here, the rights of others would necessarily be affected’; 7: ‘There seems no evidence that under Augustus there was an official concerned with receiving petitions from private individuals, as there was from Tiberius onwards.’

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remember that the Augustan system was mainly a work in progress, where modifications were constantly made based on previous experiences. Where would Augustus then exercise the jurisdiction that he is almost unanimously believed to have had? While many scholars, following later sources that speak of a tribunal on which Augustus sat, have assumed the existence of an imperial court of law,164 others saw the establishment of a specific imperial court as being totally contrary to the programme of republican restitution.165 Augustus would have also understood that a special court established by an autocratic ruler would evoke memories of the triumvirate and proscriptions, and he had mastered the indirect influences too well to make such a blunder. Instead, they suggest that Augustus and his immediate successors primarily used the Senate as a court of law.166 This theory is supported by the fact that there are no references in laws, edicts, letters, or other legal texts from the time of Augustus to an imperial hearing as a potential recourse. On the contrary, the senatus consultum from the Cyrene edicts details the creation of a legal recourse for Rome’s allies through the Senate. The instigator of this reform was Augustus, but it was executed by the consuls and the Senate.167 Like any other Roman magistrate, Augustus was not constrained to any particular place or format for resolving issues such as legal matters. Wherever he was, he could decide to have a cognitio with a council of his own choosing, for example, in his public reception rooms or wherever he might be when the occasion arose.168 That is not to say that Augustus did not have a profound impact in the spaces of justice in Rome. With the construction of the Forum of Augustus,

e.g. Jones, ‘Imperial and Senatorial Jurisdiction’ (1954). Bleicken, Senatsgericht und Kaisergericht (1962), 80 and Volkmann, Rechtsprechung (1969 [1935]), 64 emphasize how the imperial court was, like the court of the paterfamilias, not bound by place or certain procedure. Kelly, Princeps Iudex (1957), 44 restricts this to the cases of maiestas. 165 McFayden, ‘Princeps’ Jurisdiction’ (1923); Bleicken, Senatsgericht und Kaisergericht (1962), 73. 166 The main text is Bleicken, Senatsgericht und Kaisergericht (1962), 72–3. On the Senate’s jurisdiction, see Willems, Sénat (1968), 271–98; Talbert, Senate (1984). 167 SEG IX 8, section 6. 168 On the emergence of the consilium, see Amarelli, Consilia Principum (1983); Crook, Consilium Principis (1955); Cicogna, Consigli (1910). 164

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much of the legal business was moved there. This included the seats of the praetors, as may be deduced from the vadimonia Romam in the Sulpicii tablets, where the assigned place is set in the Forum of Augustus.169 There are a few indications to where Augustus himself sat in judgment. Suetonius (Aug. 33) wrote that he would be normally sitting in a tribunal, and when indisposed, on a litter or lying down, or he could also be sitting in judgment at home in a cubiculum (domi cubans). Suetonius also refers to a jury (cognoscenti) that would have assisted him. Some, like de Angelis, maintain that the primary location for Augustus and his immediate successors’ jurisdictional activities would have been the Forum Romanum, which had been monumentalized in a grandiose fashion. Many of the jurisdictional activities that had been taking place in the Forum, such as the operation of the praetor’s tribunals and the questions, were moved elsewhere, for example, to the Basilica Julia and the Forum of Augustus. In fact, much of the extensive new monumentalization and building programme in the Forum was focused on Augustus and the imperial family. The Senate, which increasingly took the role of a court, had its Curia beside the Forum Romanum, a building also linked with Augustus. In trials in the Senate, Augustus could have taken the role of consul, the princeps senatus, or a regular member of the Senate. However, there is also a second location for Augustus’ trials, the Palatine (Cass. Dio. 55.33.5 speaks of a tribunal located there when he got old and feeble). Seneca’s depiction of the trial of Cinna has it take place in Augustus’ cubiculum, having him dismiss his consilium and address the accused personally. The trials intra cubiculum like this took place within the emperor’s residence, while other trials and receptions could take place in the temple of Apollo (see Fig. 2.1), in conjunction with the imperial palace. The account of Josephus (AJ 17.11.1; BJ 2.6.1) of the dispute between Archelaus and the Jewish delegation in AD 4 locates the event in the temple of Apollo, where it was attended by over 8,000 people.170 The main problem with giving a balanced contemporary assessment of Augustus’ jurisdiction is that there are no contemporary 169 Camodeca, TPSulp (1999), 51. Kondratieff, ‘Urban Praetor’s Tribunal’ (2010), 120–2 on the symbolic dimensions of the move of the praetor’s tribunals to the Forum of Augustus. Neudecker, ‘Forum of Augustus’ (2010), 174–7; Suet. Aug. 29.1 on the construction of the forum to ease the congestion in the law-courts. 170 De Angelis, ‘The Emperor’s Justice’ (2010), 136–46; Färber, Römische Gerichtsorte (2014), 69–74.

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Domus Augusti and temple of Apollo based on A. Carandini 2010. Juhana Heikonen.

Fig. 2.1. The so-called house of Augustus, the temple of Apollo and the area Apollonis. Hypothetical reconstruction by Juhana Heikonen.

sources apart from Ovid, the two inscriptions, and Augustus himself. Ovid mentions that he could have also been judged by the Senate or a special court. For the purposes of the current inquiry, we may restrict ourselves to what Ovid has to say about his judge, Augustus. He describes Augustus as a patient father who is eager to forgive, while

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at the same time mentioning the man-eating Polyphemus in his cave. The inscriptions show a kingly sovereign adjudicating from afar and bringing justice to the provinces. Both of these figures are all-powerful creatures with radically different characters, but they may also be compared with the divergent depictions of Augustus in modern historiography. The constitutional role of Augustus can be viewed from two opposing positions that may be defined as formalism and realism. These positions can be illustrated based on the writings of Mommsen and Syme. Mommsen described the Principate of Augustus as a magistracy that was formed by the collection of numerous Republican offices into the hands of one man. The constitutional powers of Augustus would have been what one got if one combined a consul, a tribune of the plebs, a pontifex maximus, and added a smattering of proconsular imperium and superior auctoritas, among other things. In contrast to this constitutional approach was Syme’s realistic view of despotism, which portrayed the constitutional arrangements as a convenient setting, which made no real difference to the factual power of Augustus. Behind the façade, the rituals, and the official definition, stood a despot whose true power and position they completely fail to describe, as was already explained by Tacitus. However, the juxtaposition of Mommsen and Syme, and elevating one over the other, misses the real point: Mommsen’s and Syme’s models are not mutually exclusive but rather complementary, describing the legal and real worlds of the Early Principate. The aim of Mommsen was to describe the constitutional arrangement, the legal edifice that was the official self-understanding of the Augustan Principate, while Syme sought to uncover the reality behind this façade.171 A similar complementarity is evident in the juxtaposition between the formalistic and functionalistic approaches to Augustus’ jurisdiction. Even Ovid is interesting, in that he describes a similar paradoxical discrepancy between the image of the virtues of Augustus and the historical record of Augustus. Realizing that his relegation contrasted with what he was writing of Augustus himself led Ovid to embrace the paradox of the Jekyll-and-Hyde character of the regime. Consciously or unconsciously, Ovid actually captures a similar polarity that Mommsen and Syme describe in their respective characterizations of the Augustan regime.

171

Linderski, Mommsen and Syme (1990).

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It has been noted that there are interesting similarities between Cicero’s pro Ligario and Ovid’s Tristia II. The most obvious ones are, naturally, that they are appeals made on behalf of exiles, and though the circumstances are different, in both cases the injured party is also the judge and the leader of Rome. Making their appeals simultaneously to a judge and a father, both texts call for clemency more than for justice.172 Through this formulation, they are making both an admission and a statement of how the actual power of jurisdiction resides in one man alone. While the roots of Augustus’ jurisdiction have been sought in his imperium, auctoritas, or some legislative act, all attempts at finding a conclusive formal authorization have been unsatisfactory. The reasons for this lie in the lack of sources attesting to the fact that a formal act granting jurisdiction to Augustus had taken place. Attempts at tracing the formal recognition based on allusions in the work of Dio (51.19.7, 53.17.5–7) have been largely rejected because of the total lack of corroboration in other sources. What appears to be the most promising avenue, should one seek a formal authorization for jurisdiction, is either seeing Augustus’ jurisdiction as usurped or an extension of the jurisdiction of the provincial governor. This is also the solution supported by the wording of Ovid’s text. Nevertheless, I argue that the emergence of Augustus’ jurisdiction may not be reduced to any formal model, even that of the provincial governor. Despite their similarity, imperial adjudication was depicted as an existing fact, and its roots were left undefined. The adjudication of Augustus, based on the evidence, appears more dependent on the current needs and interests of Augustus rather than anything formalized. The growth of the demand for imperial adjudication was probably something beyond the intent of Augustus himself, if the upholding of the Republican façade in Res gestae is any guide. The stories that began to circulate about Augustus as judge and Augustus responding to appeals worked to create a conviction that he had jurisdiction and would use it. Thus, like the case of the provincial governor, the general power of Augustus was transformed into expectations of jurisdiction. However, this does not in any way mean that the construction of authority by the Augustan propaganda of Republican exceptionalism

172

Ingleheart, Ovid, Tristia (2010), 13–15.

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would have been insignificant. On the contrary, what it provided was an ambiguity of power. This ambiguity or indeterminacy of formal power, coupled with the very determinate real or coercive power, was a way of maintaining the illusion that nothing had changed, while everything had changed. By recognizing the superior imperium and auctoritas of Augustus, the system also recognized that from within the Republic had emerged a new figure, who, much like Polyphemus, was capable of anything, but chose not to do certain things. While the litigants recognized the power of the princeps and sought to take advantage of it, for the system to recognize the supreme holder of executive power as the supreme judge, as it was in the provinces, would have made the upholding of the Republic appear a charade. Instead, Augustus himself sought to bend the Republican system to accommodate this change. However, to outside observers and petitioners the view was very different, one of unlimited power in the hands of one man.173 As Tacitus already noted, the change towards monarchy was a welcome one for the provincials, because for them the Republican system had brought only instability, lawlessness, and greedy governors. The provincials (and the provincial governors) provided Augustus with early popular support as well as seeking his aid and assistance. Augustus, meanwhile, eagerly seized this opportunity and consolidated his personal role in the most important provinces.174 As Augustus is the most important creator of the imperial legal tradition, issues of what he wrote and did and how it appeared to outside observers are of vital importance, because tradition is created by both actions and narratives. The ‘restored Republic’ of Augustus is a curious creature in which Republican forms remain in altered shapes. Thus, instead of keeping with the traditional Republican rules, the status of Augustus is even formally recognized, though still shying away from the full monarchical system, as a kind of recognized exception. Nowhere is the exceptionality more pronounced than in adjudication, where it is evident that Augustus is able and, at times, willing to intervene in cases, sometimes resolving them himself, sometimes delegating them to a magistrate. While much of the earlier literature has sought to search for consistency and clear rules in the 173 Guizzi, Principato (1971) argued that the new regime was founded on an existential fear shared by the elite. 174 Tac. Ann. 1.2; Lintott, Imperium Romanum (1993), 111–16.

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creation and utilization of Augustus’ adjudicative capacity, it is clear that the underlying principle is one of exception and experimentation. Regardless of what Augustus’ original intent was, relegating Ovid without trial or explanation was probably an efficient way of signalling how seriously the administration took the matter. In the absence of any real communication, people would have to guess, rightly or wrongly, what the reason for Ovid’s relegation was. The message that would come across was that public opposition to the regime could lead to indefinite sojourns in the Scythian hinterlands, leading to increased uncertainty about the safety of real or perceived opposition. We have to acknowledge that there is no certainty regarding the reasons for Ovid’s relegation, or even whether Ovid himself knew why he had been relegated. He certainly had an idea, but whether that idea is the correct one is anybody’s guess. Whatever Augustus’ intention, leaving Ovid, his contemporaries, and the later world guessing had the effect of spreading insecurity.175 The importance of keeping up appearances makes it all the more intriguing why Augustus chose to deal with Ovid the way he did, because what is significant is the power of appearances; even the suspicion created by the timing of the events would have been strong enough to create the appearance of a moral backlash. The fact that he single-handedly banished a well-known public figure to a remote town in the borderlands was not unprecedented within the imperial household, but to subject a poet who was outside the political circles to the same treatment was. However, even more surprising is that Ovid was allowed to write to Rome and to plead his case in a very public manner. Though Ovid paid lip-service to the virtuous monarch, there was no mistaking that his Roman readers would have seen through the praise to the horrible injustice to which Ovid considered himself being subjected. It is almost ironic that justice was one of the virtues that Augustus’ public image was based on.176

175 A comparison of sorts is the Nacht und Nebel (‘Night and Fog’) degree instituted by Nazi Germany on 7 Dec. 1941. Under the rule, perceived and real opponents of German occupation were taken from their homes during the night and transported away. The destiny and the whereabouts of the vanished were kept secret, with the explicit intention of creating uncertainty and terror. 176 Kienast, Augustus (2014), 198. Iustitia was mentioned as his official virtue in the Res gestae and elsewhere in the imperial propaganda. In AD 13 a cult figure was erected for Iustitia Augusta, one of the new conceptual godheads that celebrated the link between Iustitia and Augustus.

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Despite the conceptual hurdles, one may confidently maintain that jurisdiction, instead of being founded on legislation or some official conception of imperium maius or auctoritas, rested ultimately on the simple fact that Augustus had real executive power and people sought his resolution of their problems or he wished to solve a problem of his own. Similarly, Augustus’ legislation followed the Republican patterns of operation; it was only that the balances of power were perpetually tipped in his favour. What the immense modern literature that has sprung up to explain the constitutional position of Augustus mostly demonstrates is his genius in being all things to all men. The allusions to various constitutional concepts that were always lofty and Republican allowed interpreters, both Roman and modern, to project, to hear what they wanted to hear. It would be safer to assume the position of Serrao, who describes the Augustan constitution as a typically Roman institution, where the new is constructed on the basis of old materials, like a new building built from reused stones and pillars.177 The example of Ovid’s relegation was not only an exercise in imperial discretionary power, but also a sign of how transparent the veil of republicanism was.

CONCLUSIONS The continuing debate over the nature of the Principate of Augustus either as despotism or some kind of constitutional monarchy is directly reflected in the issue of the emergence of imperial jurisdiction and adjudication. The main question is: was the emperor officially granted jurisdiction through some legislative act or process or did he simply assume it? The answers to this query depend heavily on one’s reading of the different narratives in the sources. The second issue builds upon the first: was imperial jurisdiction created out of nothing and did it emerge, mainly as it would stay for much of the Principate, in the reign of Augustus (as Dio and historians like Mommsen who followed him believed), or was it a result of incremental steps? We have in the sources two influential but contradictory narratives, where the first emphasizes the unfettered and capricious power of the 177

Serrao, ‘Modello di costituzione’ (1991), 48.

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emperor as judge, the narrative recounted by Ovid and provincial authors of inscriptions. The second narrative was one of Republican continuity, the insistence that nothing significant had changed and the institutions and values of the Republic remained intact, a narrative strongly supported by Augustus himself. In the narrative created by Ovid regarding his banishment, the image of the unpredictable ruler emerges, a ruler whose power one simply cannot resist. Though much energy has been spent on divining the reasons for the relegation of Ovid, this is in vain, since what matters is the power of the emperor. The possibilities open to the persons in his position are limited to begging for mercy (clementia) from the father figure. The provincial inscriptions of Augustus’ adjudication show a similar figure, that of an avenging king who brings justice, or at least an all-powerful monarch who inserts himself into cases and resolves them as he see fit. For the historians, Augustus comes across as a dutiful judge, a combination of a monarch and a magistrate. The way that Augustus himself portrays his power in the Res gestae is a kind of blueprint for the ambiguous nature of imperial rule. Like Livy’s histories, extraordinary powers and unprecedented actions are frowned upon, but instead the language of authority and imperium is used to convey the appearance of Republican continuity. In providing different narratives to different audiences, it was possible to maintain the appearance of continuity while at the same time touting the imperial ideology of exceptionalism. While this may have worked in theory, the veil of Republican continuity was thin and failed the conceal the memory of proscriptions in which Augustus himself had taken part. Securing a firm foundation for the emergence of imperial jurisdiction at the time of Augustus is and will remain a futile attempt. The quests to find authorization, to derive jurisdiction from imperium, auctoritas, patria potestas, or some other key element, have been doomed to fail. It is most likely that the jurisdiction of Augustus emerges as a necessity, a way of resolving issues. In that way, it is very similar to the jurisdiction of the provincial governors, who had a general authority to resolve issues and from that grew the practice of jurisdiction. How regular this exercise of jurisdiction and adjudication was is unclear, but the number of historical examples indicate that there emerged a shared conviction that the emperor was judge. The way that imperial jurisdiction was tied to the Senate was a similar case of

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utilizing existing practices, such as magistrates consulting the Senate, to spread the task and the responsibility as long as the issues were linked to the senatorial elite. While there might not have been official decisions to give jurisdiction to the emperor, the very concrete actions that were taken to construct the authority of the emperor and the appearance of continuity were considerable. The way that the emperor physically took over the spaces of justice in the Forum underlined the centrality of the emperor to law. The growth of the actual practice of jurisdiction, linked with the exceptionality and indefinite nature of imperial power, were enormously significant in conveying the message of imperial legal authority.

3 Divine or Insane Emperors as Judges from Tiberius to Trajan

INTRODUCTION The greatest threat to a new regime is the death of its first leader. Augustus created, not ex nihilo but nevertheless, a new system of governance for Rome. After his death, the fact that continuity prevailed was in itself a welcome exception to the Late Republican pattern of collapse and civil strife. The arrangement instituted by Augustus that the princeps devoted a considerable amount of his time to hearing petitions and adjudicating lawsuits continued unchanged. Moreover, adjudication became gradually a central arena for the continuing dialogue between the emperor and the people. Individuals and cities petitioned the emperor on various matters and sought an advantage over their opponents, bringing to the administration of justice a whole new power dynamic. Sources from this era are also unanimous that the practice of imperial adjudication was still prone to irregularities, emperors sometimes being eager either to assume or to delegate jurisdiction in particular cases. However, in earlier scholarship there has existed some confusion over what the period between Tiberius and Trajan actually meant for imperial adjudication. Some, like Bleicken, have argued that it meant the true formation of imperial jurisdiction, while for others it has been a period of irregularities and experiments by unhinged emperors, before the imperial administration of law was regularized under Hadrian.1 1 Bleicken, Senatsgericht und Kaisergericht (1962); De Martino, Storia (1974), 4:505–16; Honoré, Emperors and Lawyers (1994), 8.

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The main focus of this chapter comes from the same conundrum that caused this discrepancy: the irreconcilable differences between the idealized portrayals of emperors adjudicating and the images of abuses of power by the same emperors. In the sources we meet successive emperors from Tiberius to Trajan engaging in adjudication, for the most part diligently and industriously. However, there emerges a new trend in the narratives: imperial insanity as an explanation for the injustices and terror. In effect, the image of the emperor in the historiography of the Principate is twofold: an ideal ruler who is wise and equitable, and an insane monster engaging in arbitrary acts of terror. In both variations of the imperial image, the role of judge is essential; the good emperor demonstrates his virtues to the people through his wise rulings, while the mad emperor terrorizes people and especially the elite with arbitrary executions and trials for treason (maiestas). In this chapter I shall explore this duality of the imperial judge through several contemporary narratives. What will be shown is how much the use of the unlimited powers of the emperor was guided by the examples of earlier emperors. There are, however, several distinct layers in this assemblage of imperial activities in law. The first section explores Seneca’s De clementia, which is the earliest attempt to come to grips with what the unlimited imperial powers actually entailed and how the emperor was supposed to use them. While it utilized Stoic conceptions of the emperor as the good king, it mainly rested on demonstrative capabilities of the positive and negative examples of kings and emperors. The second section traces the evidence of imperial adjudication from this period, from the routine cases involving ordinary people to the political cases often dealing with the elite. From the practice of imperial jurisdiction, there is a curious pattern where writers such as Tacitus, Suetonius, and Dio dwell on cases involving the highest Roman elite, while mentioning how individual emperors acted diligently and dutifully as judges. In addition to these historians, we will also look into evidence from inscriptions and papyri, such as the senatus consultum de Pisone patre from the reign of Tiberius or the acta Isidori tracing a trial conducted by Claudius. What emerges is often contradictory narratives of historical reputation that were formed on the basis of this ideal of imperial adjudication. The third section explores the only legislative source to elaborate on the powers of the emperor during this period. At the accession of Vespasian, a period of rupture at the end of the

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Julio-Claudian dynasty, a law, now called lex de imperio Vespasiani, was drafted. It is the only official attempt at defining the capabilities of the emperor, but it remains silent on imperial jurisdiction. However, it is highly relevant to the study of imperial adjudication since, even though the power of the emperor was considered to be nearly limitless, the law sought to bind the emperor to the examples of his predecessors.2 The fourth and fifth sections deal with the historical images of imperial adjudication in Tacitus and Pliny, our most influential contemporary sources. Tacitus portrays nearly every emperor as a tyrant or fast becoming one, whereas Pliny depicts Trajan as an ideal emperor. As with all of our literary sources, they also have distinct biases that influence their views. While Tacitus is all about the power battles within the senatorial elite with the emperor always in the middle of them, the supremacy and enlightened sovereignty of the emperor are prominent in Pliny. Tacitus’ emperors pervert the legal world, while Pliny’s Trajan brings justice, even to the provincials. Within this chapter the main weight of the argument is on the development of the historical narratives. The major part of the historical vision of the time as presented in the above outline comes from the historians Suetonius and Dio, the first of whom completed his imperial biographies early in Hadrian’s reign. The era brings also the first rescripts found in the Digest of Justinian, the first being a rescript of Tiberius.3 However, emperors such as Tiberius still sought to present the image of Republican continuity by acting like regular citizens in the courts of law, including aiding in private jurisdiction. For example, Seneca’s depiction of Tarius’ trial of his son in the family court was a similar case in which the emperor, Augustus, seeks to appear like a normal friend of the family. Seneca saw this as an interesting example of imperial jurisdiction, because Augustus painstakingly avoided any suggestion that he was encroaching on the father’s jurisdiction and acted more as a member of the father’s consilium. However, Seneca said it was unclear under whose authority the son was finally banished. While the case may be seen as an illustration of Augustus’ virtue, the measures that Augustus took, including the declaration that he would not accept an inheritance from Tarius, show what kinds of elements would be in play in a

2

Crawford, Statutes (1996), n. 39; CIL 6.930.

3

Dig. 48.5.39.10.

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situation like this. The emperor was, even though he wanted to appear innocuous, like an elephant in the room.4 What the case demonstrates is how difficult it was to combine the practically unlimited power that the emperor had come to have and the idea of Republicanism. The literature dealt with in this chapter emphasizes the superhuman nature of the emperor, which manifested itself not only in his sovereign power over the life and death of everyone in the Roman world, but also in the extent of his virtues and vices. As the virtues of good emperors were beyond comparison, so was the emperor capable of horrible abuses and vices. This understanding does not mean that the idea of Republican continuity was without supporters; for authors like Tacitus the continuity was focused on the ongoing influence of the Senate. Equally, the poet Martial rejects the flatterers of emperors who call him dominus and deus, likening them to turbaned Parthians who supplicate lofty kings. There is no dominus in Rome, just an imperator, the most just of all the senators.5 However, the facts were sometimes hard to connect with the ideals. For example, Josephus mentions how Tiberius crucified everyone involved in the plot against Paulina, including the priests of Isis, and ordered the destruction of the temple of Isis. Paulina was the wife of a senator, who had been deceived into having sex with another man through a ruse that might appear to be quite unbelievable.6 While the story might or might not be a crude excuse for the persecution of the cult of Isis, it demonstrates how it was believed that the emperor could get involved in matters of minor importance and act decisively.

SENECA AND THE OMNIPOTENT EMPEROR In terms of the publicly declared understanding of the position of the emperor, there is a momentous change taking place in the decades after the death of Augustus. Seneca, in his writings on the imperial rule, discards completely the carefully maintained idea of the continuity of the Republic and replaces it with a theory of kingship based 4 5 6

Sen. Clem. 1.15.2–7; Frier and McGinn, Casebook (2004), 197–8. Mart. 10.72. Joseph. AJ 18.65–80; Millar, Emperor (1992 [1977]), 524.

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on Stoic philosophy. In terms of imperial adjudication, the change is even greater. Instead of being a judge implementing laws, the person of the emperor is elevated as the embodiment of law. Central to the emperor’s adjudication, not to mention all his other acts, was the imperial virtue of clementia, which Seneca saw as superior to the laws themselves.7 The purpose of this section is to explore the depiction of the emperor as judge in De clementia, and through it, the development of the ideals and practices of imperial jurisdiction. While the text has normally been approached as a philosophical treatise, the aim here is to evaluate the implications it had for the nature of imperial adjudication, a power subject to only the control by imperial virtues. The image of the quasi-divinity of the emperor stemming from theories of ideal kingship is then contrasted with a very different image of Seneca’s, the one of Apocolocyntosis. As is commonly known, Seneca wrote many of his works while a tutor of Nero,8 and his writings are inextricably linked with the politics of the time. Threatened by Caligula and banished by Claudius, Seneca was able to return to Rome after Claudius’ death and became one of the central figures in Nero’s reign. Though he was a provincial from Hispania, he rose to the consulship in AD 57 and amassed enormous wealth. While he was later idealized as a philosopher, ancient writers like Tacitus and Dio present him in a mostly negative light, due to the glaring discrepancy between his teachings and his actions.9

7 Favez, ‘Roi et le tyran’ (1960), 346–9; Fuhrmann, ‘Alleinherrschaft’ (1963), 481–514; Büchner, ‘Clementia’ (1970), 203–23; Grimal, ‘Royauté solaire’ (1971), 205–17; Fears, ‘Nero as the Vicegerent’ (1975), 486–96; Mortureux, ‘Les idéaux stoïciens’ (1989), 1645–85; Grimal, Sénèque (1991); Campanile, ‘Seneca’ (1991), 513–28; Rilinger, ‘Seneca und Nero’ (1996), 130–57; Soverini, ‘La clemenza dei potenti’ (2000), 48–61; Lana, ‘Riflessione sulla securitas’ (2001); Manuwald, ‘Fürstenspiegel’ (2002), 107–26; Könczöl, ‘Clemency and Justice’ (2008), 61–9; Beltrami, ‘De Clementia’ (2008); Braund, Seneca, De Clementia (2009). On the role of clementia in Stoic philosophy, see Brouwer, ‘On Law and Equity’ (2011), 32–8. 8 Griffin, Nero (1987); Champlin, Nero (2003). 9 Cass. Dio 61.10.1; Tac. Ann. 13.2, 11, 20, 42. There is a considerable literature on Seneca, e.g. Griffin, Seneca (1976); Abel, ‘Seneca’ (1985), 653–775; Veyne, Seneca (2003); Inwood, ‘Seneca’ (1995), 63–76; Griffin, ‘Political Thought’ (2002), 325–37; Bartsch and Wray, Seneca and the Self (2009); Ker, ‘Tacitus on Seneca’ (2011); Wilson, Greatest Empire (2014); Romm, Dying Every Day (2014). On the apotheosis of Seneca, see Ker, Deaths of Seneca (2009). Some have refused to condone Seneca’s accommodation of a murderous tyrant; see e.g. Rudich, Political Dissidence (1993). See also Rawson, ‘Philosophic Adviser’ (1989), 233–57.

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In his De clementia Seneca presents a description of the virtues of a good emperor in a self-congratulatory speech by Nero. He begins the speech by announcing his godlike power: Have I of all mortals proved good enough and been chosen to act as the gods’ representative on earth? I make decisions of life and death for the world. The prosperity and condition of each individual rests in my hands. Egone ex omnibus mortalibus placui electusque sum, qui in terris deorum vice fungerer? Ego vitae necisque gentibus arbiter; qualem quisque sortem statumque habeat, in mea manu positum est . . . 10

The speech continues to underline the unprecedented physical coercive power that has been concentrated on the emperor and his power over the life and death of whole nations: These myriads of swords now restrained by my peace will be drawn with a nod from me. I have the power to decide which nations should be annihilated and which saved, which granted liberty and which deprived of it, which kings should become slaves and whose heads should be crowned with royal glory, which cities shall fall and which cities shall rise. . . . haec tot milia gladiorum, quae pax mea comprimit, ad nutum meum stringentur; quas nationes funditus excidi, quas transportari, quibus libertatem dari, quibus eripi, quos reges mancipia fieri quorumque capiti regium circumdari decus oporteat, quae ruant urbes, quae oriantur, mea iuris dictio est.11

The use of this almost unlimited coercive power is, however, constrained by the virtues of the emperor, the most important of them his clementia: In this position of enormous power, I have not been driven to unjust punishments by anger or by immature impulse or by people’s recklessness and obstinacy (which has often wrenched the patience out of even the calmest hearts) or even by that glory so horrifying but so common in great commanders of demonstrating power by means of terror. In my case, the sword is hidden—no, sheathed, I am extremely sparing of even the cheapest blood. There is no one, whatever else he may lack, who

10 11

Sen. Clem. 1.1.2. Tr. Braund, Seneca, De Clementia (2009). Sen. Clem. 1.1.2.

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does not win favour by the fact of his being human. I keep sternness concealed by clemency ready on standby, I guard myself just as if I were going to have to justify myself to those laws which I summoned from their neglect and darkness into the light. [3.] In hac tanta facultate rerum non ira me ad iniqua supplicia compulit, non iuvenilis impetus, non temeritas hominum et contumacia, quae saepe tranquillissimis quoque pectoribus patientiam extorsit, non ipsa ostentandae per terrores potentiae dira, sed frequens magnis imperiis gloria. Conditum, immo constrictum apud me ferrum est, summa parsimonia etiam vilissimi sanguinis; nemo non, cui alia desunt, hominis nomine apud me gratiosus est. [4.] Severitatem abditam, at clementiam in procinctu habeo; sic me custodio, tamquam legibus, quas ex situ ac tenebris in lucem evocavi, rationem redditurus sim.12

Clementia is clearly the prime virtue, while the law is relegated as a secondary yardstick against which the behaviour of the emperor is compared. The emperor, as a good king, delivers justice through his virtue. Written during the early years of Nero’s reign, between late 55 and late 56, the work presents an idealized image of Nero as the best of emperors. De clementia is a curious work of political philosophy that is the earliest known Latin example of the speculum principis genre (often awkwardly translated as ‘mirror for princes’ literature), that combines kingship theory, panegyric, and philosophy. What Seneca depicts is a vision of an absolute monarchy guided by an enlightened, humane, and virtuous ruler. While the obvious contradiction between the historical reputation of Nero and the image of him provided by Seneca has elicited a fair amount of sarcasm from commentators, what is significant for this inquiry is how much Seneca has shut out the Republican tradition and how wholeheartedly absolutist his conception of the Principate is. Instead of being nostalgic about the Republic, he actually explains how the Principate has liberated the state from the tyranny of discord and civil wars, not subjugated it.13 Later in De clementia the position of the emperor is compared with that of a paterfamilias: No one arrives at the point of inflicting punishment without exhausting all available remedies first. That is how a parent ought to act—and an 12

Sen. Clem. 1.1.3–4. Stacey, Roman Monarchy (2007), 3–4; Braund, Seneca, De Clementia (2009), 16–23; Braund, ‘Praise and Protreptic’ (1998), 53–76; Rilinger, ‘Seneca und Nero’ (1996). 13

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emperor too; when we have named him ‘Father of the Fatherland’ we have done so not induced by meaningless flattery. . . . But the name ‘Father of the Fatherland’ we have used to make him aware that he has been granted a father’s power, which is the most restrained in the way that it cares for his children and subordinates his own interests to theirs. Nemo ad supplicia exigenda pervenit, nisi qui remedia consumpsit. [2.] Hoc, quod parenti, etiam principi faciendum est, quem appellavimus Patrem Patriae non adulatione vana adducti. . . . Patrem quidem Patriae appellavimus, ut sciret datam sibi potestatem patriam, quae est temperantissima liberis consulens suaque post illos reponens.14

If the first quotation presents the emperor as a godlike superhuman ruler, the second passage shows him as a father, a paterfamilias endowed with the power to decide over the life and death of citizens, his children (ius vitae necisque), but at the same time always submitting his own interest to theirs. The father is the holder of absolute power that is wielded with no self-interest, a figure that we may see Seneca equating with both the Roman paterfamilias and the Stoic wise king. The description presents the emperor as an all-powerful sovereign who is ruled only by his own superhuman self-control. The emperor, as the holder of unfettered military and administrative power and the supreme jurisdictional power, is actually his own guardian, his virtuous self-control being the only limitation he has. Thus he watches over himself as if the laws that he has summoned would be guarding him. Seneca outlines how the princeps is both above the law and unbound by it, but due to his virtue chooses to follow the rules of law that he himself has set.15 The image of the emperor as judge is fortified by legal terms as allusions, such as the mention of his universal powers over nations, kings, and cities as literally being under his jurisdiction (Clem. 1.1.2, mea iuris dictio est). Like in the Hellenistic kingship literature, the problem Seneca addresses is the taming of absolute monarchical power when it comes to law and justice, turning the monarch from a tyrant to a provider of law and justice.16 As Pliny would write about Trajan (Pan. 65.1), the good emperor voluntarily subjects himself to law.

14 16

15 Sen. Clem. 1.14.1. Stacey, Roman Monarchy (2007), 41. Martens, One God (2003), 53.

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The emperor has thus a godlike power, and he is the gods’ vicegerent on earth (deorum vice), and on many occasions Seneca gives him divine attributes, comparing him to Jupiter or the sun.17 He is the vitae necisque gentibus arbiter and able to make cities prosper or to wither away. Though he has the powers of a god, he is able to control himself as if he was subject to the same laws that he has resurrected from the neglect that they fell into during the reigns of previous emperors. Inversely, it is clear that he is not subject to the laws, he only upholds them. This godlike creature is incapable of anger, no matter how provoked by the stupidity of the people, and thus he is the most clement of beings. The main duty of the emperor as judge is to be lenient in meting out punishment. Perhaps, for Seneca, resolving issues of contract law would not have the same rhetorical flourish, or would raise the issue of whether Nero himself would be bound by it. The holder of all this power, Nero, is the best of emperors because of his superior moral and ethical qualities. In De clementia Seneca suggests that Nero’s goodness is innate, since no one can hold up a mask of decency very long and hide their true nature. Therefore, it would be foolish to suggest that Nero would try to imitate Augustus or the early years of Tiberius, not to mention the later years of Tiberius, Caligula, or Claudius.18 Seneca compares Nero favourably with Augustus, saying that Augustus himself was a brutal youth, but found peace only with clemency and gained divine honour with it, along with the name of ‘father’.19 It is ironic that Seneca urges Nero to be true to oneself while at the same time offering him a mask, an idealized figure of himself.20 As a political philosophy of kingship, De clementia follows the Stoic concept of ideal kingship as an embodiment of divine law.21 For Seneca, it is the virtuous goodness of the emperor that justifies the absolute power given to him. Seneca’s enlightened monarchy is that of a universal ruler whose power is upon all peoples and nations. The universalist understanding is, of course, a reflection of the Stoic doctrine and its conception of the cosmic city defined by higher moral laws. On this level, the emperor’s power is justified by his

17 See e.g. Sen. Clem. 1.19.9 calling him optimus and maximus; or 1.8.4 comparing him to the sun; Campanile, ‘Seneca’ (1991), 517. 18 19 Sen. Clem. 1.1. Sen. Clem. 1.9.1–1.10.3. 20 Stacey, Roman Monarchy (2007), 45. 21 Braund, Seneca, De Clementia (2009), 64–5.

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virtue alone, validated by the principle of universal law.22 This coupling of moral uprightness, virtue, and goodness was an essential tenet of Roman Stoicism of the Early Principate.23 Based on this, it is hardly surprising that instead of seeking to limit him, Seneca actually encourages his protégé Nero to embrace the idea of enlightened absolutism. Seneca appears to advocate a Hellenistic ideal monarchy in which the masses are benevolently guided, the intellectuals are encouraged, and Stoic philosophy valued. It would have been strange if the man the emperor’s sister had chosen to educate the future ruler would have publicly shown strong Republican tendencies.24 In Seneca, the concept of the good king was complemented by the figure of the evil tyrant as its necessary counterpart. The tyrant was simply a king whose behaviour had lapsed from the ethical and moral standards of kingship. It is evident that monarchy contained no repugnancy in itself for Seneca, but on the contrary, was seen by him as both a necessary and inevitable form of government for Rome.25 According to Seneca, the difference between tyrants and kings is not in the name but rather in their actions: tyrants kill out of brutality, kings out of necessity.26 From the passages in De clementia it is possible to parse together the image of the emperor as an ideal judge. The duties of the emperor-judge towards the people are threefold. First, he has to be available for the people to approach with their queries. Second, the emperor has to provide security for the people by curtailing offences. Third, the duty of the emperor is to use punishment to guide the behaviour of people, both in individual cases and generally, by setting an example.27 In all of these actions, the good emperor-judge is led by his clementia, which entails that he would naturally restrict himself from engaging in revenge and cruelty. However, the acts of adjudication may be seen as an interaction between himself and the people, a kind of gift exchange in which the good deeds and benevolence of 22 23 24 25

Stacey 2007, 30–1; Adam, Clementia Principis (1978). Wilson, ‘Tacitus, Suetonius, Juvenal’ (2003), 536. Campanile, ‘Seneca’ (1991), 519. Stacey, Roman Monarchy (2007), 59; Braund, Seneca, De Clementia (2009), 65,

68–9. 26

Sen. Clem. 1.12.1–2. See also Könczöl, ‘Clemency and Justice’ (2008); Lana, ‘Riflessione sulla securitas’ (2001). 27

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the emperor are rewarded by the affection and devotion of the people.28 The accessibility of the emperor is entwined in maintaining his good public image. Because the public image of an emperor is vital to ruling, an emperor should always be courteous, accessible, and available.29 The ideal of the accessibility of a ruler is one which crosses boundaries through Greek, Hellenistic, and Roman cultures of governance. The ruler should recognize that each encounter is unique to the subject he meets, and thus each moment is important in its own right. Because everyone notices what an emperor does, he is constantly in the spotlight, meaning that each act and discussion is performed as if on a stage.30 The duty of security was clearly a reciprocal relationship where the emperor both provides and receives in return. For an emperor, his own safety is ensured by the safety and security given to others. Real happiness comes from giving safety to others.31 According to Seneca, the main argument for imperial power in the early Julio-Claudian era was security.32 By demonstrating his clementia, the emperor would follow the ideal of the rex iustus, the model of good ruler, and would guarantee not only the happiness of the ruled but also his own safety.33 The ethical duty of avoiding revenge, anger, and cruelty is in accordance with the Stoic idea of punishment. An emperor may exact punishment either to avenge himself or to avenge someone else, but in avenging himself, there is no compensation that can be had or position to be restored, because the emperor is so powerful to begin with. To avenge someone else, a lenient punishment is usually better for all.34 According to Seneca, clemency best suits a king or an emperor because anger debases a king to the level of a commoner. Even to shout is not appropriate to a king’s standing.35 Thus the very display of anger is a sign of imbalance and, possibly, madness.36 It is possible that this pairing of the display of anger and madness was a

29 Beltrami, ‘De Clementia’ (2008). Sen. Clem. 1.13.4. Sen. Clem. 1.8.4–5. On the centrality of visibility, see Fertik, ‘Privacy and Power’ (2015). 31 32 Sen. Clem. 1.19.5, 1.26.5. Lana, ‘Riflessione sulla securitas’ (2001), 39. 33 Beltrami, ‘De Clementia’ (2008), 16–17. 34 35 Sen. Clem. 1.20.1–1.23.1. Sen. Clem. 1.3.3., 1.5.6, 1.7.4. 36 Stacey, Roman Monarchy (2007), 35. 28 30

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poke in the direction of Claudius, who was known to lose all dignity and composure when angered.37 The main aim of De clementia was to warn how cruelty harms an emperor. Seneca evokes the phrase commonly associated with Caligula: oderint, dum metuant (‘they can hate me, so long as they fear me’) as the worst attitude an emperor can have.38 Seneca differentiates between various types of authority, that of emperor, father, instructor, and tribune or centurion, and concludes that in all situations, clemency is better than savagery at inducing obedience.39 The king gets no glory from savage punishment because everybody is aware of what he is capable of doing.40 Unwarranted recourse to cruelty is loathed even in slave-masters, such as Vedius Pollio, who fed his slaves to his eels and was censured by Augustus.41 Cruelty is inhuman in that it blurs the distinction between man and beast, since morally there is no difference in having someone thrown to the lions and tearing them apart with one’s own teeth.42 Many observers have seen the purpose of De clementia to commit Nero to the idea of clemency and dissuading him from becoming another Caligula.43 That may have been the case, but I would argue that Seneca outlines the way that absolute power would be compatible with justice in adjudication. Seneca raises clementia to a cardinal virtue that is the embodiment of justice. The value of clementia is such that it trumps the letter of the law, meaning that the ruler exercising his clementia is not bound by law.44 The concept of clementia is the connection between the praise for Caesar by Cicero and Seneca, but there are fundamental differences. For Seneca, clementia was an absolutist concept which entailed the use of unlimited power tempered by complete self-control.45 However, the Ciceronian virtue of clementia was an ethical term without such connotations. Much of the practice of ruling was based on the idea of reciprocity between the ruler and the ruled as a kind of gift exchange. For Seneca, 37 Seneca says so himself in Apocol. 6, while Suet. Claud. 30 and 38 mentions how he would drool and make hasty and cruel decisions. 38 Sen. Clem. 1.12.4, 2.2.2; De Ira 1.20.4 oderint, dum metuant. The phrase was ascribed to Caligula by Suetonius (Suet. Calig. 30.1). 39 40 41 Sen. Clem. 1.16.2–3. Sen. Clem. 1.17.3. Sen. Clem. 1.18.2–3. 42 43 Sen. Clem. 1.25.1. Griffin, Seneca (1992), 136. 44 Stacey, Roman Monarchy (2007), 33. 45 A distinction discussed by Stacey, Roman Monarchy (2007), 35, 55.

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this exchange even extended to the administration of justice. Seneca mentions how Caesar was also petitioned to honour debts of allegiance to his veterans, which he once paid by resolving a case in favour of one of them. The veteran was entwined in a trial against his neighbours, and the case was going badly for him. Suddenly the man turned to Caesar, who was adjudicating the case, and asked him whether the imperator remembered (meministi) the time he sprained his ankle in Spain and needed to lie down in the shade. A soldier had helped him by spreading his cloak on the ground. Caesar replied that he also remembered that the same soldier had brought him water in his helmet when he was dying of thirst. The veteran said that he was this soldier, only his face had been mutilated to the point of being unrecognizable by wounds at the battle of Munda. Caesar ordered that the man should not be troubled anymore, and gave him the piece of land that the trial was about.46 Seneca provides another enlightening example of gift exchange as a part of imperial adjudication. Rufus, a man of senatorial rank, had at dinner said that he wished that Augustus would not return safely from the trip he was planning. Because he had been drunk, he did not remember this in the morning. However, his slave reminded him of it and urged him to go first to the emperor and volunteer charges against himself. Rufus rushed to meet Augustus while he was on his way to the Forum, begging him for forgiveness for his drunken utterances. As Augustus agreed to this, Rufus insisted that Augustus give him a sizable gift to show that he had indeed been restored to favour. Augustus consented, but said that: ‘For my own sake, I shall take pains never to be angry with you!’47 It was clearly not sufficient to restore Rufus’ status that Augustus would have simply ignored his mishap. Thus the idea of the exercise of justice as gift exchange was not limited to a positive exchange of favours, but extended also to negative gifts. In another example, the case of the scheming Cinna, Augustus ended the exchange of negative gifts with his clementia. Cinna had been involved in a plot against Augustus, and Augustus was contemplating why harsh punishments were not enough to deter conspirators. His wife suggested taking another approach and to try leniency. The idea of negative gift exchange would mean that he would have repaid the gift of betrayal by Cinna with a gift of 46 47

Sen. Ben. 5.24. Sen. Ben. 3.27, Mea causa dabo operam, ne umquam tibi irascar! Tr. Basore.

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punishment. Instead, he broke off the exchange and pardoned Cinna, who remained his loyal friend henceforth.48 While in the case of Julius Caesar the failure of the gift exchange has been suggested to have been caused by the extraordinary nature of the gifts of life given by Caesar, which failed to bind the receivers into a reciprocal relationship of gratitude, this time things were different. The role of the father assumed by the emperor would have been an acceptable way to illustrate the asymmetrical position of the parties in the gift exchange.49 His opponents considered Caesar as their equal and despised him for the gifts, whereas the position of Augustus in his later years was so far above that of the ordinary people that he could be considered peerless. What Seneca manages to do in his portrayal of the emperor’s power and position is to neutralize the antipathy that is traditionally—largely due to Cicero—associated with kingship among Romans. Instead, he brings into the discussion the principle of universal justice in the form of the emperor, utilizing the Greek and Hellenistic traditions of kingship from Isocrates and Xenophon.50 It is clear that for Seneca imperial power demanded supernatural powers of self-control. Thus it is only natural that much of De clementia consists of anecdotes of men holding similar power, be they Greek tyrants or Persian kings, who fail miserably at living up to the demands of the office. Much of the history of the Julio-Claudian emperors has been seen as proof that very few, including Seneca’s pupil Nero, acquired the power of the emperor and remained in full mental equilibrium. It is curious whether there is actually an ironic substratum beneath the laudatio with which Seneca begins his book.51 The text could be read as a subtle warning that the office of the emperor is not a stable vehicle of power, but rather a racecar which mere mortals would drive into a ditch in seconds. This unpredictability meant that virtue, the ethical and moral qualities of the emperor, was supremely important. Stacey has recently argued that this virtuous rule would be one executed according to natural law,

48 The concept of negative gifts has also been examined by Beltrami, ‘De Clementia’ (2008), 39. 49 Beltrami, ‘De Clementia’ (2008), 32. 50 Stacey, Roman Monarchy (2007), 32. 51 Romm, Dying Every Day (2014), 66 calls the Principate the ‘great magnifier of mental flaws’.

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with justice and legitimacy.52 My claim is that Seneca presents jurisdiction as one of the main areas where the virtue of the emperor is exposed and thus his clementia and justice are put to the test. What he underlines repeatedly is how this virtue was equally in the emperor’s own selfinterest, that it guarantees the security of the emperor. Seneca’s depiction of the imperial office is far more nuanced than even the positive and negative examples of De clementia show. In an earlier text he writes of Caligula’s murderous excesses that: ‘It seems that Nature produced him as an experiment, to show what absolute vice could accomplish when paired with absolute power.’53 We may compare the idealized illustrations of De clementia to the scorn heaped on Claudius in the Apocolocyntosis.54 The satirical depiction of the judgment of Claudius in the heavens and hell is not only an illustration of his vices and crimes, but also precedes the exemplary type of narrative of De clementia. In the satire, Claudius dies and is taken to heaven for a trial in front of the gods (in fact, a senate of the gods, replicating in its procedure that of the Roman Senate), regarding whether he should be elevated among them. The testimonials are favourable until Augustus rises to testify. His speech starts with an obvious parody of the Res gestae (‘Was it for this I gave the city of Rome a foundation of laws, and an embellishment of public works, so that . . . ?’),55 but moves quickly to the condemnation of Claudius: This man, honourable members, who gives you the impression of not being able to startle a fly, used to kill people as effortlessly as a dog squats on its haunches. Hic, p.c., qui vobis non posse videtur muscam excitare, tam facile homines occidebat, quam canis adsidit.56

Stacey, ‘Princely Republic’ (2014), 150. Sen. Helv. 12.10.4 C. Caesar [Augustus], quem mihi uidetur rerum natura edidisse ut ostenderet quid summa uitia in summa fortuna possent. Tr. Romm, Dying Every Day (2014), 11. On Seneca and the memory of Caligula, see Barrett, Caligula (1989), 156–8, on the curious phenomenon where many senators are said to have been executed but the details of who and when are contradictory. 54 There is a considerable volume of literature on this delightful text. Mac and Currie, ‘Purpose of the Apocolocyntosis’ (1962), 91–7; Kraft, ‘Politischen Hintergrund’ (1966), 96–122; Bringmann, ‘Senecas Apocolocyntosis’ (1971), 56–69; Leach, ‘The Implied Reader’ (1989), 197–230. 55 Sen. Apocol. 10, Ideo legibus urbem fundavi, operibus ornavi, ut . . . Tr. Eden, Apocolocyntosis (1984). 56 Sen. Apocol. 10. 52 53

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Augustus then pushes aside public concerns in favour of family, listing the innumerable members of Augustus’ family that were killed by Claudius. What was most disturbing was that they were killed summarily, without trial and a chance to defend themselves: Tell me, deified Claudius, why did you convict any these men and women, whom you killed, before you could examine the case, before you could hear the evidence? Where is this the customary practice? It is not so in heaven. Dic mihi, dive Claudi, quare quemquam ex his, quos quasque occidisti, antequam de causa cognosceres, antequam audires, damnasti? Hoc ubi fieri solet? In caelo non fit.57

Thus Claudius is sent to Hades, where he is mercilessly tried by another kind of jury, the men he had murdered, under the lex Cornelia for murderers. As his misdeeds are listed, the murders of thirty-five Senators, 221 Roman knights, and innumerable others, he is denied a chance to defend himself and sentenced with the accusers’ words.58 Claudius is condemned not merely because he had killed his friends and relatives, but because he had done so without any consideration for justice and equity or the customary process of law. Seneca had, of course, been relegated by Claudius, and had a score to settle, but the larger picture is quite clear.59 Furthermore, what is interesting is how much the narrative of the judgment of Claudius utilizes the vocabulary and procedure of a trial in the Senate. The gods refer to each other as patres conscripti and their assembly hall as the curia (Sen. Apocol. 8–10). Even though the emperor was all-powerful and his actions were guided by his virtues, and his virtues only, there were certain expectations of justice placed on him. What the judgment of Claudius illustrates is that the emperor was considered bound by positive and negative examples, and while he was supposed to operate with the moral compass of his clementia and other virtues, exempla were a way to educate him who needed no guidance. What makes De clementia so interesting for the study of the narratives of imperial adjudication and power is its context. As is 57

58 Sen. Apocol. 10. Sen. Apocol. 14. Leach, ‘The Implied Reader’ (1989), 214–17 argues that the Apocolocyntosis and De clementia should be seen as parts of a whole, meant to appease the Senate and to bring them to accept the new political reality. 59

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well known, Nero was not the paragon of virtue advertised in the text, and Seneca was not simply a philosopher writing a learned treatise. Instead, the book has been described as a cynical piece of writing intended to mollify Rome after the murder of Britannicus. By having his half-brother murdered as a part of his struggle with his mother Agrippina, Nero was continuing the slow-motion mass murder that annihilated the imperial family. One of the aims of De clementia may have been to erase the memory of the fratricide, with two audiences in mind. The first was the population of Rome, whom Seneca sought to assure that the new regime would not continue on the path of Claudius and Caligula, the lawlessness of their reigns highlighted by the use of maiestas trials to remove real or perceived opponents and to plunder their property. The second audience may have been Nero himself, warning of the dangers of unrestricted power. Far from being an impartial observer, Seneca took part and aided the young princeps in some of the questionable deeds that were committed to uphold the new regime.60 While a treatise like De clementia and a satire like Apocolocyntosis are at their heart about ruling and power, they and the events that they depict are very pertinent to the field of law, because many of them are instances of adjudication. I have argued that the jurisdiction of the emperor and the rulings he issued were highly visible presentations of his virtues, his clementia and justice. Though the murders and sham political trials of Caligula, Claudius, and Nero were actions that are chiefly significant regarding the battle for power, influence, and money, for the outside observer they are striking demonstrations of the imperial power over the law, that ultimately the emperor held sway without restraint over the life, liberty, and property of everyone within his power. De clementia was the first influential text that put the same principle down in writing. Even though at the time of writing Rome had been ruled first by autocratic rulers and then by emperors for over a century, the official line was still that Rome was a republic ruled by a princeps, the first among equal senators. What is clear is that Seneca’s theory brought a new connection to Greek and Roman political theory, a theory intended to underline the link between the emperor, law, and justice and the emperor as their guarantor.61 60 61

Romm, Dying Every Day (2014), 88. As indicated also in Fuhrmann, ‘Alleinherrschaft’ (1963), 507.

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DEALING WITH THE CRAZY: EARLY IMPERIAL JURISDICTION The historical image of early imperial jurisdiction is a baffling mix of the extension of imperial jurisdiction and the crucial importance of imperial sanity in the exercise of that jurisdiction. The expansion of the emperor’s personal jurisdiction is demonstrated by the growing number of examples of emperors acting as judges and the mention of emperors appointing officials to deal with routine jurisdiction. If one looks at the extant sources and literature as a whole, it is evident that a composite picture of the jurisdictional activities of the early emperors is quickly summarized.62 The aim of this section, however, is to present the different narratives of imperial adjudication that have come down to us from various sources, from the historians to the documentary evidence such as inscriptions and papyri, and to demonstrate how narratives of adjudication and, by extension, those of imperial insanity could serve a number of different purposes and aims. Following the example of Augustus, his successors had a regular presence in the law-courts as judges. The descriptions of Tiberius’ (r. AD 14–37) early reign are unanimous on his insistence on upholding the Republican ways of legal process in the regular courts. Of his private jurisdiction, some evidence indicates that Tiberius had criminal jurisdiction at least in cases of maiestas, though possibly concurrent with the Senate. It has been a matter of debate whether the jurisdiction of the Senate was in fact an innovation of the period of Tiberius or whether this is simply a reflection of the Tacitean narrative. The personal jurisdiction of the emperor would appear to have been to a great extent elective. From the record left by Tacitus, it seems that Tiberius was active in the pursuit of cases but left the final decision to be made by the Senate.63 While Tiberius would respect the 62 In fact, both Honoré’s and Millar’s description of the first emperors and their activities with regard to justice are to a large extent a description of the sources. Honoré, Emperors and Lawyers (1994), 9–10; Millar, Emperor (1992 [1977]), 523–5. 63 e.g. Tac. Ann. 3.10 (Tiberius investigates, the Senate passes the judgment), 3.38 (Tiberius active, but case handled by other courts), 3.70 (Tiberius judged himself, leading Capito to protest that the right to pass judgment would have belonged to the Senate), 4.22 (Tiberius investigates, case resolved by suicide before Senate hearing); Joseph. AJ 18.65–80. On criminal cases under Tiberius, see Schilling, Poena extraordinaria (2010), 119–88. On the jurisdiction of the Senate, see Arcaria, Senatus censuit (1992); Garnsey, Social Status and Legal Privilege (1970), 18–42; Kunkel, ‘Die Entstehung’ (1974), Bleicken, Senatsgericht und Kaisergericht (1962) De Marini

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authority of the Senate, he instituted a rule by which he would be informed of all decisions made, and the decisions should not be executed before the passage of ten days.64 This would allow him time to intervene in matters like trials. Some claim that Tiberius selected a consilium of senators to assist him in adjudication instead of Augustus’ senatorial committee chosen by lot. As Tiberius retreated to Capri, even this consilium ceased to act.65 A rescript of Tiberius is preserved in the Digest in which it is decreed that a charge of adultery against the holder of a public office or honour will be postponed until after the term of office has expired.66 The view on the early reign of Tiberius has undergone a significant change after the recent discovery of the text of the so-called senatus consultum de Pisone patre. The text was inscribed on bronze tablets. While the fragments were found in unlicensed digs from the 1980s onwards, they were collected, edited, and published only in 1996.67 This remarkable text contains what appears to be the decision of the Senate on the complicated affair relating to Gnaeus Calpurnius Piso (consul of 7 BC) and Germanicus, son of Tiberius. The details of the case are murky, but Piso had been in conflict with Germanicus over the control of the province of Syria. After the sudden death of Germanicus, Piso was suspected of poisoning him and having treasonous intentions after an armed conflict among Roman troops in Syria. Tiberius recalled Piso to face an inquiry in Rome, but he committed suicide.68 The senatus consultum itself condemns the actions of Piso and his aides and accomplices, while showering Tiberius and the whole imperial family with praise. Though the true course of events is unclear, as are the charges that Piso was facing, what the text shows is how strongly even the Senate’s jurisdiction was bound not only to

Avonzo, Funzione giurisdizionale (1957). On Tiberius and the jurists, see Bauman, Lawyers and Politics (1989), 56–75. 64 Tac. Ann. 3.51; Suet. Tib. 75. 65 Bleicken, Senatsgericht und Kaisergericht (1962), 99–100. 66 Dig. 48.5.39.10. 67 The text was published simultaneously in two editions: Caballos, Eck, and Fernández, El Senadoconsulto de Gneo Pisón Padre (1996); Eck, Caballos, and Fernández, Das senatus consultum de Cn. Pisone patre (1996). Review by Harriet I. Flower, Bryn Mawr Classical Review 97.7.22. On the context, see Schilling, Poena extraordinaria (2010), 134–8. 68 The episode is also covered by Tacitus (Ann. 3.1–19).

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the emperor but to the imperial house. While the insolence of Piso and the illegality of his actions are strongly condemned, his family is spared. The reason for this was that Tiberius had interceded at his mother’s request to spare Plancina, Piso’s wife, from punishment. Thus, though the Senate has jurisdiction over the matter, it is exercised according to the wishes of the princeps.69 While the text is a legal one, it has a deep ethical and moral subtext, where the virtues of the emperor and his family are extolled while Piso’s moral failings are condemned. This has been interpreted in many ways, the foremost being that Piso, who was related to the imperial family, posed a threat that had to be neutralized.70 By his own actions, Piso had forfeited his life, forcing Germanicus to renounce his friendship (l. 28–9), demonstrating the way that imperial friendship had become mixed with the right to live. Conceptually, it is fascinating how the offence of maiestas combined the maiestas domus Augustae and the ius publicum, in effect equating offending the imperial family with the slighting of the Roman people (l. 32–3). There are two further details that underline the role of imperial power in the condemnation of Piso: the emphasis on imperium and the final word of Tiberius. On the first count, the SC contains a very curious outline of the insolence of Piso, who sought to challenge the authority of Germanicus, framing it around the concept of imperium. What the SC stated was that Piso had offended not only the maiestas of the imperial house, but also public law in not recognizing that, in all circumstances, Germanicus had a higher imperium than he did, while Tiberius had an even higher imperium (lines 28–37), perhaps a reference to the imperium maius proconsulare. The second detail is the strangely personal ending of the SC, where Tiberius writes in the first person that he had, on his own motion, presented the text to the senate and now wishes the SC to be entered into the public records (l. 174–6). In Tacitus’ depiction of the events leading to the accusation of Piso, it is shown how Piso initially waited for the summons to appear in the regular courts and sees the taking of the case to the Senate as raising Germanicus above the law.71

69 ll. 109–20. On the legal dimension of the affair and its implications to the Senate’s jurisdiction, see Richardson, ‘SC de Cn. Pisone patre’ (1997). 70 Cooley, ‘Moralizing Message’ (1998), 199–212; Potter, ‘Political Theory’ (1999), 65–88. 71 Tac. Ann. 2.79, 3.12; Garnsey, Social Status and Legal Privilege (1970), 24–5.

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The text illustrates how much dynastic and monarchical policies influenced not only politics but also law and, especially, the perception of law in the Roman world.72 What the personal intercession of Tiberius underlined was the important role of the emperor in delivering justice. In the case of Piso, imperial intervention acted to alleviate the sentence with clementia. In the same way, the emperor was hoped and expected to intercede to the formalistic way of regular legal procedure by providing remedies and equity. While persons appealing to the emperor no doubt hoped that the majesty of the emperor would aid them in gaining justice which was so easily lost in the regular courts prone to corruption, a second reason for the appeal to imperial justice was the procedure of cognitio. In the formulary procedure used in the regular courts, process was bound by inflexible rules and set formulae that provided the grounds for suits, and a person of sufficient standing would have to act as accusator. In contrast, the cognitio of imperial courts was inquisitorial, aimed at attaining the material truth, and the judge was not bound by set solutions or penalties.73 The reign of Tiberius was central to the continuance of the Augustan tradition of the Principate, but the historical reputation of Tiberius was also a first in what was to become typical of the depiction of the developmental arc of emperors as a downward slide. This was true especially of the emperors of the Julio-Claudian era, when the trope of the emperor’s gradual descent into what was understood by contemporaries as insanity was common. The typical storyline would begin with the newly appointed emperor who was benevolent, worked hard, and listened to his advisers and the Senate. Slowly, this emperor would become accustomed to the unlimited power and divine honours vested in him, being surrounded by sycophants and parasites, and begin to lose touch with reality. Finally, the sense of unrestrained power and unlimited responsibility would drive him to reckless acts and senseless abuses of power. The emperor would thus begin a reign of terror that would last until he was disposed of with a palace coup or, more rarely, died of natural causes. The historical 72 Rowe, Princes and Political Cultures (2002), on the systematic promotion of princes and imperial succession during the reign of Tiberius and how that changed the policies, institutions and values of Rome and its elite. 73 Brouwer, ‘On Law and Equity’ (2011), 36–7; Garnsey, Social Status and Legal Privilege (1970), 6, 24–5, 65. Kaser and Hackl, Zivilprozessrecht (1996), 435–45; Lauria, ‘Accusatio-inquisitio’ (1983).

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images of Tiberius, Caligula, Claudius, and Nero all follow the same pattern, though with substantial variations, leading to persistent theories about hereditary insanity in the Julio-Claudian family or the instability of the combination of hereditary monarchy and a republican constitution.74 In the exercise of imperial jurisdiction, this duality of the official and the paranoid sides of the emperor is apparent. On the official side we see the expanding imperial legal apparatus and growing legal responsibilities of the emperors, while on the paranoid side there are stories of the jurisdiction of the emperor being used in the persecution of his real or perceived enemies by the liberal use of maiestas charges.75 It would appear that the early emperors were, for the most part, combinations of diligent administrators and monsters. This duality is, of course, a narrative and partly due to the differing roles of emperors in adjudication. Within the imperial court and among the elite, the emperor had a delicate position, balancing different factions against each other, seeking to ensure that none of them gained a dominant position. Within these power-struggles, not to mention disputes over imperial succession, law was used as a weapon against opponents. However, this highly limited struggle had little bearing on the legal issues of the general population that the emperor was asked to resolve. This duality of the imperial narrative is most pronounced in Suetonius’ depiction of Tiberius. Suetonius states that when Tiberius had taken the throne, all business was carried out through the magistrates and the ordinary process of law.76 Nevertheless, Suetonius hints that there was a sense of unease over what the powers of Tiberius were, in the same way as in the story (discussed in Ch. 2) of Seneca about Augustus aiding Tarius, a paterfamilias, in a trial of domestic jurisdiction. One such story tells how Tiberius attended the trials

74 A roughly similar narrative on the emperors is given by Seneca, Tacitus, Suetonius, and Dio, making it so prevalent that it was long considered to be the only true assessment. Winterling, Caligula (2011) attempts to show that what the actions of the ‘mad’ emperors show is not the insanity of the emperor, but rather the insincerity of the situation and the doublespeak that it involved. 75 From the outline of criminal cases given by Schilling, Poena extraordinaria (2010), it is clear that maiestas cases are probably highly over-represented due to their political importance. Of the maiestas cases, see Bauman, Crimen Maiestatis (1967). 76 Suet. Tib. 31.2.

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presided by other magistrates, assuming the role of an assessor, insisting that the judges remain in their normal places. Suetonius saw this as his attempt to covertly influence judicial procedure.77 The stories are similar in the sense that, despite the fact that the regular magistrates are acting as they should, there is an elephant in the room in the shape of the emperor. What Suetonius is eager to demonstrate is the havoc caused by the elephant running loose, meaning the coercive powers of the emperor being abused by an unpredictable and unconstrained individual. Suetonius’ descriptions of Tiberius’ excesses in themselves form a pattern typical of imperial abuse of power by torture, rape, and killings, where torture was so common that even visiting guests were tortured by accident and then killed to hide the mistake.78 Their true significance in the storyline is to form a contrast to the peaceful regularity of affairs when Tiberius was able to curtail his violent urges. The image provided by Dio is very similar to that of Suetonius in terms of emphasizing the positive characteristics of imperial jurisdiction. Dio informs us that a tribunal was erected for Tiberius in the Forum where he adjudicated in public. In adjudication, Tiberius would have followed the advice of his consilium and allowed free discussion among its members.79 However, Dio also mentions that Tiberius refused to hear appeals on cases decided by M. Junius Silanus, because he valued him so highly.80 Modern research has attributed the fact that the image of the latter part of the reign of Tiberius in ancient historiography has been largely negative to the strained relationship between the senatorial aristocracy and Tiberius. Tacitus especially, but also Suetonius and Dio, were critical of his lack of respect for the Senate. It is likely that the contrasting motifs, that of Tiberius as the consolidator of imperial rule and that of the aristocracy maintaining their privileges, led the aristocratic historians to have a decidedly negative view of Tiberius.81 A similar combination of a good judge with regards to the common people and a cruel tyrant to the elite is apparent in the historical images of other early emperors. Caligula, Claudius, Nero,

77 78 79 80 81

Suet. Tib. 33. Suet. Tib. 61–2; Shotter, ‘Trial of Clutorius Priscus’ (1969), 14–18. Cass. Dio 57.7.2–6. Cass. Dio. 59.8.5; Millar, Emperor (1992 [1977]), 510. Bleicken, Senatsgericht und Kaisergericht (1962), 47–9.

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and Vespasian are all described as having acted dutifully as judges,82 and even Domitian is described as a diligent and hardworking judge.83 The historical narrative of Caligula84 (r. AD 37–41) contains one of the most striking contrasts between well-performed routine jurisdiction and a reign of terror among the elite. Caligula spent whole days sitting in judgment by himself and with the Senate.85 He also allowed magistrates to have unrestricted jurisdiction without appeal to himself.86 When the Caligula of these stories, in the typical fashion of early emperors, reverts to cruelty and becomes mad with unchecked power, the list of excesses, ranging from torture, public humiliation, and executions to assaults on established authorities, is quite typical of Suetonius.87 What he demonstrates is the danger of unlimited coercive power in the hands of a person who clearly cannot handle the sense of power. The reign of Caligula has been seen as a watershed in the relationship between the emperor and the legal system. Some hold that Caligula’s threat of not accepting appeals from magistrates showed that even an emperor as unhinged as he was felt restrained by the law and his own duties as judge.88 However, others see that the accession of Caligula meant that the relationship between the emperor and the Senate in adjudication changed because of the utter unpredictability of the emperor. Because the mood of the emperor and his wishes could not be predicted, most cases tended to end up in the emperor’s court. The process was not an appeal in the real sense, since the emperor mostly took the cases to solve. Caligula apparently used no consilium, and thus there was no continuity in the imperial chancellery.89 The true nature of the situation is probably lost to us, but what the narratives of Caligula’s excesses demonstrate is the growing conviction of the centrality of imperial decisions and the irrelevance of other judicial mechanisms against the caprice of the emperor. Unlike Tiberius, who referred most high-profile political cases to the Senate, Caligula was content to issue rulings on his own. The cases that have been preserved are of dubious relevance in the legal sense, 82 83 84 85 86 88 89

Suet. Calig. 16; Suet. Claud. 14; Suet. Ner. 15; Suet. Vesp. 10; Cass. Dio 59.18.2–3. Suet. Dom. 8. Winterling, Caligula (2011); Barrett, Caligula (1989). Sen. Apocol. 7.4–5; Cass. Dio 59.18.2. 87 Suet. Calig. 16.2. Suet. Calig. 33–5. Suet. Calig. 16.2; Honoré, Emperors and Lawyers (1994), 9. Bleicken, Senatsgericht und Kaisergericht (1962), 100–4.

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because they are mostly short examples of Caligula’s trampling on the senatorial elite. Thus, short mentions of arbitrary rulings on the marriage of elite women,90 accusations of maiestas,91 banishment,92 or conspiracy,93 are hardly enough to let us see the ordinary practice of jurisdiction.94 There are essentially three conflicting schools of thought on how to approach the supposed insanity of Caligula and, by extension, other early emperors. The traditional approach has been to accept the judgment of ancient authors, namely that Caligula was simply mad and that his insanity got progressively worse. The traditional view has no shortage of backing in ancient literature; for example, Athenaeus relates that Caligula dressed up as Dionysus when he sat in judgment.95 The revisionist approach has seen imperial madness as a senatorial depiction that misunderstands an actually shrewd strategic choice, strengthening the traditional alliance between the emperor and the people. This alternative reading of Caligula’s exploits suggests that it was actually the emperor playing to the masses, who enjoyed seeing the rich and powerful humiliated.96 The third interpretation is the most recent, and continues the strategic line of thought. According to this theory, conflicts that were a constant feature of the whole of Caligula’s reign stemmed from the contradictions inherent in the Augustan settlement and the recognition of the absolute powers of the emperors. Before, the indefinite formal status of the emperor had allowed for the emperor, the court, and the Senate to play along and hold separate views of the constitutional status quo. Caligula’s attempts at solving the conflict would have been the main reason why he was stamped as a madman. Some suggest that in the Hellenistic kingdoms the normal course of action was to label the emperor a paterfamilias of Rome and bestow on him divine honours. This was, in fact, the course of action that Seneca would propose in De clementia. That would have solved the conflict between the formal and real powers, but the Augustan tradition of refusing these honours was too imbedded to allow the Senate to take this course, like the 90

Suet. Calig. 25.1; Cass. Dio 59.8.7 (Orestilla and Piso). Suet. Calig. 30.2; Cass. Dio. 59.10.4, 59.10.7, 59.11.6. 92 Cass. Dio 59.20.6; Juv. 7.204–5 (Carrinas Secundus); Cass. Dio 59.23.9; Schol. Juv. 1.155 (Ofonius Tigellinus). 93 Suet. Calig. 24.3; Cass. Dio 59.22.5–9. 94 On these, see also Schilling, Poena extraordinaria (2010), 188–200. 95 96 Ath. 4.29. Yavetz, Plebs and Princeps (1988), 114–15. 91

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municipalities had already done. Instead, Caligula ended up demonstrating his limitless powers by constantly humiliating the Senate and senators.97 Others suggest that the entire trope of the emperor humiliating the Senate was a way for Caligula to demonstrate his power to the Senate and the people. What acts like promoting his horse to the Senate achieved was to show that he is actually omnipotent and the Senate was a meaningless relic.98 For the purposes of the Republican narrative that was held in such high esteem by Augustus, the actions of Caligula would thus appear to be insane. While all three alternatives may have some truth in them, the most convincing explanation for the narratives of insanity is the violation of the expectations and conventions that were placed on imperial adjudication and administration. The portrayal by the ancient historians of imperial jurisdiction during the reign of Claudius99 (r. AD 41–54) follows a similar pattern. Claudius would routinely sit in judgment, either in the company of the Senate or by himself, usually in the Forum. He renewed the practice, abolished by Tiberius, of having advisers with him while judging. He also joined the consuls and the praetors in their investigations, and rarely turned over cases to the other courts. Suetonius mentions two examples where Claudius was physically abused by litigants in the Forum, perhaps to underline his lack of dignitas. Whatever the narrative purpose, it hardly tells of a rare visit from a godlike figure, feared and respected, but rather a routine event.100 Claudius, according to Dio, made efforts to limit the number of pending lawsuits by ruling that cases may be decided even if one of the parties is absent. He even enforced this rule, since the number of lawsuits had grown.101 It is perhaps indicative of the routine nature of his public adjudication that Seneca has Claudius talk to Hercules, reminiscing over the entire days that he spent in July and August sitting in judgment in front of Hercules’ temple.102 From the time of Claudius we have also the intriguing text of the so-called acta Isidori, a part of the third-century collection known as acta Alexandrorum. The text relates to a complex dispute of status 97 Gradel, Emperor Worship (2002), 140–2, 144–5, 158. See also Roller, Constructing Autocracy (2001), 260–1. 98 Winterling, Caligula (2011). 99 Levick, Claudius (1990), 115–26; May, ‘L’Activité juridique’ (1936). 100 Cass. Dio 60.4.3–4; Suet. Claud. 15. 101 102 Cass. Dio 60.28.6. Sen. Apocol. 7.4–5.

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in AD 38–41 between the Greek and Jewish inhabitants of Alexandria, which led to both parties sending embassies to first Caligula and then Claudius. Both emperors met with embassies and held hearings, sending letters that sought to restore peace and resolve the issues. Members of the embassies wrote their own accounts and published documents that they had secured from the emperor. The text of the acta Isidori purports to be the transcript of a trial between Isidorus (one of the Alexandrian Greek ambassadors and a noted prosecutor) and King Agrippa, whose visit to Alexandria had triggered riots. The date of the trial was probably AD 41, and the location was one of the imperial gardens of Rome.103 The surviving text opens with the beginning of the trial, a day’s postponement and the opening of proceedings: The sixth day of Pachon: the second day. Claudius Caesar hears the case of Isidorus, gymnasiarch of Alexandria, v. King Agrippa in the . . . gardens. With him sat twenty senators (and in addition to these) sixteen men of consular rank, the women of the court also attending . . . Isidorus’ trial. Isidorus was the first one to speak: ‘My Lord Caesar, I beseech you to listen to my account of my native city’s sufferings.’ The emperor: ‘I grant you this day.’ All the senators who were sitting as assessors agreed with this, knowing the kind of man Isidorus was. Claudius Caesar: ‘Say nothing . . . against my friend. You have already done away with two of my friends, Theon the exegete and . . . ’ Lampon to Isidorus: ‘I have looked upon death . . . ’ Claudius Caesar: ‘Isidorus, you have killed many friends of mine.’ Isidorus: ‘I merely obeyed the orders of the emperor at the time. So too I should be willing to denounce anyone you wish.’ Claudius Caesar: ‘Isidorus, are you really the son of an actress?’ Isidorus: ‘I am neither slave nor actress’s son, but gymnasiarch of the glorious city of Alexandria. But you are the cast-off son of the Jewess Salome! And therefore . . . ’

103 Musurillo, Acts of the Pagan Martyrs (1954), 18–31; Rodriguez, ‘Acta Isidori’ (2010), 1–41; Harker, Loyalty and Dissidence (2008), 9–24; Magnani, Il processo di Isidoro (2009). The dating is controversial and the main options are AD 41 or 53, depending on the identification of the participants and their locations at different times. The location is known as the ‘[ . . . ]lian gardens’, which may refer to the Lucullan, Lollian, Statilian, or the Servilian gardens. The text is preserved in five fragments: BGU II 511, P.Lond.Inv. 2785, P.Oxy. 42.3021, P.Berol. 8877, and P.Cairo 10448.

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Lampon said to Isidorus: ‘We might as well give in to a crazy Emperor.’ Claudius Caesar: ‘Those whom I told (to carry out) the execution of Isidorus and Lampon . . . ’104 [col. ii] ἡμέρα [δε]υτ[έ]ρα. Παχὼ[ν ϝ.] ἀκούει Κλαύδιος Καῖσα[ρ τὸ τοῦ Ἰσιδώρου] γυμνασιάρχου πόλεως Ἀ[λεξανδρέων] κατὰ Ἀγρίππου βασιλέω[ς ἐν τοῖς -] λιανοῖς κήποις, συνκα[θημένων αὐτῷ] συνκλητικ[ῶ]ν εἴκο[σ]ι, π[ρὸς δὲ τούτοις] ὑπατικῶν δέκα ἔξ, πα[ρουσῶν δὲ καὶ] τῶν ματρωνῶν εἰς.[ τό τοῦ] Ἰσ[ι]δώρου. Ἰσίδωρ[ο]ς ἐν πρ[ώτοις ἔλεγεν.] κύριε μου Καῖσαρ, τῶν γονά[των σου δέομαι] ἀκοῦσαί μου τὰ πονοῦν[τα τῇ πατρίδι.] ὁ αὐτοκράτωρ. μερίσω σο[ι ταύτην τὴν] ἡμέραν. συνεπένευ[σαν καὶ οἱ συν-] καθήμενοι [π]άντες σ[υνκλητικοὶ ] εἰδότες ὁποῖό[ς ἐσ]τιν ἀ[νὴρ ὁ Ἰσίδωρος.] / Κλαύδιος Καῖ[σαρ. μηδὲν] κατὰ τοῦ ἐμοῦ [φίλου εἴπῃς. ἄλλους γάρ] μου δύο φίλ[ους ἀνῄρηκας ἤδη. ] Θέωνα ἐξηγη[τὴν καὶ Ναίυιον ἔπαρχον] [col. iii] [. . . . ]ε πρέσβεα[ . . . . . . . . . . . ] ἡ πατρίς. [Λά]μπων τῷ Ἰσ[ιδώρῳ . . . . . . ] ἐφεῖδον [ἤδη] τὸν θάνατ[ον. . . . .Κλαύ]διος Καῖσαρ. [πολ]λούς μου φίλους ἀπέκτ[ει]νας, Ἰσίδωρε. [Ἰσί]δωρος. βασιλέως ἤκουσα τοῦ τότε [ἐπ]ιτάξαντος. καὶ σὺ λέγε τίνος θέλεις [κα]τηγορής `ω´. Κλαύδιος Καῖσαρ. ἀσφαλῶς [ἐ]κ μουσικῆς εἶ, Ἰσίδωρε; Ἰσίδωρος. [ἐγ]ὼ μὲν οὔκ εἰμι δοῦλος οὐδὲ μουσικῆς [υἱ]ός, ἀλλὰ διασήμου πόλεως [Ἀ]λεξαν[δρ]εί[ας] γυμνασίαρχος. σὺ δὲ ἐκ Σαλώμη[ς] [τ]ῆς Ἰουδα[ίας υ]ἱὸς [ἀπό]βλητος. διὸ `καὶ´ ἀπο[.] .ειας ἐπ[ . . . ]ατη[. .]ως. ἔφη Λά[μπ]ων

5 (25)

10 (30)

15 (35)

(40)

5 (45)

10 (50)

104 This translation is from the most complete text, Recension A (Chrest. 14), Musurillo, Acts of the Pagan Martyrs (1954), 24–5. Of the different versions and traditions, see Rodriguez, ‘Acta Isidori’ (2010); Magnani, Il processo di Isidoro (2009). The authenticity of the text, which became the foundational text of all acta literature, is debated. See Harker, Loyalty and Dissidence (2008), 179–211 on the numerous editions of the acta Alexandrinorum and related texts.

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[τ]ῷ Ἰδιδώρῳ. τί γὰρ ἄλλο ἔχομεν ἢ παρα[φ]ρονοῦντι βασιλεῖ τόπον διδόναι; [Κ]λαύδιος Καῖσαρ. οἷς προεκέλευσα [τ]ὸν θάνατον τοῦ Ἰσιδώρου καὶ Λἀμπων[ος].

15 (55)

Considering that the probable aim of the text was to advertise the pride and valour of the Alexandrian envoys, it manages to underline their nerve. Isidorus, who was mentioned in the literature as a troublemaker, proceeds to insult the emperor almost immediately. The killing of Claudius’ friends is possibly a reference to Isidorus’ role in some local quarrels or as his role as a prosecutor in Rome. It comes as no surprise that Claudius would order both Isidorus and Lampon to be executed. However, how much historical truth can be deduced from the different versions is questionable.105 What is most interesting for our purposes is how the text describes the trial. The emperor, while he sat with an extensive consilium, felt free to engage with the defendants and spend time listening to them speak. The information that Claudius granted Isidorus the whole day for his speech may perhaps be a rhetorical exaggeration.106 While the issues themselves are interesting, the literary tradition that grew up in relation to this matter, the long and acrimonious dispute between the Greek and Jewish populations of Alexandria, shows how difficult the administrative task of the emperor was. Each side sought to present their version of the case, not only to the emperor but also to their supporters, resorting to distortions and outright lies. Thus, for example, Josephus cites an ‘edict’ of Claudius, which is actually just an abbreviation of a letter of Claudius that emphasized the parts that were favourable to his party.107 What this meant was that even though the emperor attempted to resolve an issue, there was no guarantee that the parties would not have distorted his message to their advantage.108

105 Harker, Loyalty and Dissidence (2008), 15–16, 23; Rodriguez, ‘Acta Isidori’ (2010). 106 Magnani, Il processo di Isidoro (2009) 147 presupposes preceding readings of documents. 107 Harker, Loyalty and Dissidence (2008), 26. 108 The textual tradition that stemmed from the acta Isidori mixes documentary style and prose description and its purpose was clearly to glorify the Alexandrian Greek struggle against both the Jews and the Romans. Harker, Loyalty and Dissidence (2008); Rodriguez, ‘Acta Isidori’ (2010).

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The way Claudius used his jurisdiction has received a contradictory verdict. Suetonius maintains that he was a dutiful adjudicator.109 Dio reports that Claudius reversed many unjust decisions of Caligula, such as relegations and sentences of maiestas, and he ended the use of maiestas charges as political tools.110 Both Tacitus and Dio mention how Claudius sentenced a number of people to death because of charges brought by Messalina, but did not pursue charges against people plotting against himself.111 Despite the avowed promise to end charges of maiestas, those took place even relatively early in his reign.112 Claudius executed at least one of the murderers of Caligula.113 Otherwise, the known cases are, to a large extent, the familiar mix of punishing provincial governors,114 conspirators,115 or the bizarre claims of incest relating to the arrangements of dynastic succession.116 In contrast, we know of cases from inscriptions that belong to the other extreme in their mundane nature. For example, Claudius resolved a boundary dispute in Pisidia in Asia, where his involvement stemmed from the fact that he was the owner of one of the estates in question.117 Modern interpreters of imperial legal policy have considered Claudius’ reign as a turning-point in the consolidation of imperial jurisdiction as a regular feature and the rise of imperial legal bureaucracy. The fact that Claudius had routine jurisdiction exercised both by himself and with other magistrates has been understood to mean that he was inclined to accept, rather than to decline, jurisdiction, like his two immediate predecessors.118 Others interpret Claudius’ reign as the decisive ending of the Senate’s influence as a court of law and 109

110 Suet. Claud. 14. Cass. Dio 60.3.7–4.2. Tac. Ann. 11.1–3; Cass. Dio 60.29.4–6a. 112 C. Appius Silanus (Suet. Claud. 29.1, 37.2; Cass. Dio 60.14.2–4; Sen. Apocol. 11.2–5); L. Vitellius (Tac. Ann. 12.42). 113 Cassius Chaerea (Suet. Claud. 11.1; Joseph. AJ 19.266–71; Cass. Dio 60.3.4). 114 Most of these were handled in the repetundae process, but at least one by Claudius himself (Cass. Dio 60.24.4). 115 Asinius Gallus (Suet. Claud. 13.2; Cass. Dio 60.27.5); C. Silius and Messalina (Sen. Apocol. 11.1, 11.5, 13.4; Tac. Ann. 11.26–38; Suet. Claud. 36; Cass. Dio 60.31.1–5; for other sources, see Schilling (2010), 215–16). 116 The accusation of incest against L. Junius Silanus and Junia Calvina, instigated by Agrippina to pave the way for Nero’s accession (Sen. Apocol. 8.2, 10.4, 11.2–5; Suet. Claud. 29.1; Tac. Ann. 12.3.4–8; Cass. Dio 60.31.7). 117 Levick, Government (1985), 55; Smallwood, Documents (1967), 387 (SEG XIX 765). 118 Honoré, Emperors and Lawyers (1994), 9. 111

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the beginning of the imperial bureaucratic apparatus. The Senate played its hand badly during Claudius’ accession, and the relationship between it and Claudius was never repaired. The imperial legates and officials took ever more important regular positions, and the imperial power and the state power started to become indistinguishable. Thus the reign of Claudius released imperial power from its foundation in the republican magistracies. The imperial power became institutionalized and independent, and consequently the imperial cognition was even theoretically unlimited.119 Despite this, Suetonius maintains that Claudius sometimes exercised his jurisdiction as a consul.120 However, the sources on the early imperial legal bureaucracy are ambiguous. For example, Claudius sought a grant of jurisdiction for his procurators from the Senate (Tac. Ann. 12.60). It is very difficult, if not impossible, to determine what this meant; for example, did the grant refer to procurators who acted as governors or to procurators who handled the imperial estates? One theory is that the grant meant fiscal jurisdiction.121 I would be sceptical about the claims of the reign of Claudius as a revolutionary development. Based on the sources, this is very hard to justify, as most of his practices of adjudication (sitting as a judge in the Forum, reining in the elite through legal charges, and admitting important cases from the provinces) were already used by his predecessors. Beyond the diminishing references to the Senate as a court of law, Claudius’ policies may be seen as a process of stabilization and consolidation of imperial adjudication as a routine. The early emperors, of course, used the Senate to fulfil legislative functions. More than a dozen legislative senatusconsulta are known from the period between the death of Augustus and the ascension of Hadrian. They were clearly tools of imperial policy alongside laws and imperial constitutions and used for making new laws or clarifying interpretations of existing laws.122 119 Bleicken, Senatsgericht und Kaisergericht (1962), 104–15. The origins of the imperial cognitio process were already traced to Claudius by May, ‘L’Activité juridique’ (1936), 78–9. Kunkel, ‘Review of Bleicken’ (1964), 371 doubts whether one can make very large claims regarding the extent of Claudius’ legal activities due to the lack of sources. Claudius has been credited with humane policies, such as liberating slaves abandoned to die through his edict (Cass. Dio 60.29.7; Volterra, ‘Intorno’ (1956), 211). On Claudius’ role in giving jurisdiction to his procurators, see Brunt, ‘Procuratorial Jurisdiction’ (1966). 120 121 Suet. Claud. 14. Brunt, ‘Procuratorial Jurisdiction’ (1966), 461–87. 122 Schiller, ‘Senatus Consulta’ (1958), 499–502, 508. Especially of Claudius, see Buongiorno, Senatus Consulta Claudianis (2010); Volterra, ‘Senatus Consulta’ (1993),

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Though Seneca presented an image of Nero (r. AD 54–68) as completely free of legal restrictions, according to Tacitus, Nero felt that he had to conform to the expectations of the laws.123 Tacitus says that Nero adjudicated by himself,124 but Suetonius mentions that he insisted that members of his consilium give their opinions in writing and he would then present his own opinion as that of the majority. Though Suetonius presents this as a sign of Nero’s insecurity as a judge, his insistence on having the opinions of his councillors in writing does not necessarily make him a bad judge.125 According to Tacitus, Nero attempted to restrict appeals to him, telling the Senate that he would not become ‘a judge of all cases’ (negotiorum omnium iudicem, Ann. 13.4). However, one of the major complaints of the era from the reigns of Caligula to Nero was the influence of persons in the imperial court, especially women and imperial freedmen, who used maiestas charges in political power-struggles. These claims, coming as they do from authors like Tacitus, also represent their dislike of the influence of persons they considered their inferiors.126 During the time of Nero another important feature appeared: the rise of the jurisdiction of the urban prefect. Tacitus (Ann. 14.41) records that a case regarding the forgery of a will was contested in front of both the urban prefect and the quaestio de falsis, only to end up in the Senate.127 Whether or not this should be interpreted as a sign of how the regular appeals process went or a sign of forum shopping by litigants is debatable. There are a few other examples of appeals during the reign of Nero. One is a scandalous case related by Tacitus, involving magic and incest by members of a senatorial family.128 The other is the appeal of the apostle Paul in the court of the procurator of Judea, Festus, to be heard by the emperor.129 The appeals of provincials were not always successful; Tacitus mentions

222 maintains that Claudius began the practice of having the Senate approve his orationes held by a legate. 123 124 Tac. Ann. 13.33. Tac. Ann. 14.50. 125 Suet. Ner. 15; Bauman, Lawyers and Politics (1989), 134–6. 126 See e.g. Dinsberg, Representing Agrippina (2006). Beyond misogyny, the senatorial class had plenty to oppose in the situation, see McAlindon, ‘Senatorial Opposition’ (1956), 113–32. 127 Bleicken, Senatsgericht und Kaisergericht (1962), 116–17. 128 Tac. Ann. 16.8.2–3; Millar, Emperor (1992 [1977]), 510. 129 Acts 22.25–6, 23.27, 25.6–22; Lactant. De mort. pers. 2.6; Euseb. Hist. eccl. 2.22–3; Millar, Emperor (1992 [1977]), 510–11.

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how Nero would let a case against his procurator drag out until the man died of old age. However, a few years later Nero banished a senator who had used imperial favour for financial gain.130 He convicted Fabricius Veiento, relegated him, and ordered his books to be burned.131 Most of the cases that are known from the time of Nero are the familiar mixture of power-struggles and conspiracies.132 The persecution against Christians and the mass executions that followed in AD 64 were possibly overseen by Nero himself, but how much the case can be seen as a trial is questionable.133 Similarly, in the famous AD 61 case debated in the Senate about the punishment of the slaves of the murdered city prefect, Pedanius Secundus (Ann. 14.42–5), the role of Nero is unclear, as his insistence is the final word on both the execution of the 400 slaves as well as the sparing of his freedmen, so as not to tarnish the ancient custom with brutality (per saevitiam). It is not known what role in his decision was played by the crowds of people demonstrating outside the Senate against the killing of so many innocents, especially women and children. While the main thrust of the argument was the putative mos maiorum and the need to keep slaves under control, the case highlighted the way that even the Senate’s jurisdiction was ultimately under imperial control. Even though the Senate debated extensively about the correct interpretation of the law, with eminent lawyers like Cassius Longinus participating, the end result demonstrated how free the emperor’s resolution was in relation to law. Nero would later underline the point further by exiling Cassius Longinus in 65.134

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Tac. Ann. 13.33.1, 14.50; Millar, Emperor (1992 [1977]), 526. Tac. Ann. 14.50. He had originally been accused of libel in the Senate, but Nero took the accusation for misappropriation of his own judgment. 132 A large number of these kinds of cases were handled by the Senate. The accusations against Agrippina in 55 resulted in calumny trials and sentences against her accusers, but it is uncertain whether they were judged by Nero himself (Tac. Ann. 13.19–22). Piso’s conspiracy in 65 was handled by Nero (Tac. Ann. 15.66–74; Suet. Ner. 36.2). 133 Tac. Ann. 15.44; Suet. Ner. 16.2; Tert. Apol. 4.4, 5.3; Lactant. De mort. pers. 2.5; Euseb. Hist. eccl. 2.25.5–7; Schilling, Poena extraordinaria (2010), 250–1; Liebs, Summoned to the Roman Courts (2012), 114–24. 134 Of the controversies regarding the SC Silanianum and its application in the case, see Harries, ‘Senatus Consultum Silanianum’ (2013), esp. 60–3; Nörr, ‘Cassius Longinus’ (1983), 187–96 (with reference to the ample earlier literature). See also Kajanto, ‘Tacitus’ (1970) on the curious reference to the vetus mos and the fact that the SC Silanianum dates from AD 10. 131

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The common image parsed from the sources is that law was beginning to be a central preoccupation of the emperor, whether or not he was so inclined. Of the early emperors, only Galba (r. AD 68–9) had apparently studied law among other liberal arts,135 but his short reign was plagued by the injustices of his freedmen.136 From the time of Vespasian (r. AD 69–79) onwards, approachability and openness to the people for consultation as well as industrious adjudication are central virtues of the emperor, who was expected to act as a judge, hold audiences, and answer petitions.137 Only a few of Vespasian’s cases are known, such as one where he sentenced the Cynic Demetrius to be banished.138 Demetrius had earlier gained notoriety for defending Publius Egnatius Celer, who had acted as an informer for Nero against his former student Barea Soranus and became famous for his ingratitude to his benefactor and the vast reward he received from Nero. In this famous case, Celer was sentenced to death by the Senate during the time of Vespasian. After this judgment, Celer’s accusers turned their attention to the persons involved in the case and asked the emperor to reveal their names from the imperial chancellery.139 What this case demonstrated is that while the delatores could in theory gain much from accusing the enemies of emperors, they were very vulnerable after a change of power.140 While approachability was a central virtue and one behind the popularity of appealing to the emperor on legal matters, reaching the emperor was, in practice, not as simple as one might assume from the general statements. Access was easier for those with friends and connections. One of the issues deriving from both the centrality of the emperor and challenges in gaining an audience past the cubicularii is the way that persons near the emperor gained importance precisely due to their proximity to him. The imperial officials, caesariani, but also minor characters, were thought to be invaluable in the process, a conviction that was richly reflected in the narratives about emperors 135

136 Suet. Galb. 5.1. Cass. Dio 64.2.1–2. Suet. Vesp. 10; Cass. Dio 65(66).10.5. 138 Suet. Vesp. 13; Cass. Dio 65(66).13.1. 139 The episode is mentioned in Tac. Hist. 4.40, where the issue comes up during Domitian’s first entrance to the Senate. He wisely defers the matter to Vespasian. 140 The figure of the delator was not purely an invention of the empire, but its centrality was unparallelled in the narratives of Tacitus. On the extensive literature on delatores, see Robinson, ‘Delators’ (2007). 137

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and the imperial court. Epictetus, a Greek philosopher, provides a telling viewpoint of the way that a worthless cobbler would suddenly become a person of great importance after becoming the emperor’s cobbler. Epictetus shows how a vast number of persons both in Rome and in the provinces both depended on the emperor and feared him, since promotion and punishment were equally possible for those taken to meet the emperor.141 Though a number of sources portray the time of Domitian (r. AD 81–96) as a reign of terror, we have little indication in the sources to suggest that his adjudication was particularly bad. On the contrary, as emperor, Domitian was a conscientious and scrupulous judge, though he behaved unpredictably towards his courtiers. Suetonius even writes that he had, on appeal, reversed verdicts of the centumviral court. From the reign of Domitian we also hear of projects in which he undertook the correction of public morals by punishing Vestal Virgins for immorality.142 Similar moral campaigns included the ban on castration and other legislation.143 Several trials for maiestas were handled by the emperor himself.144 Philostratus provides a lengthy account of the trial of Apollonius of Tyana for sorcery and conspiracy, in which he was tried by Domitian himself.145 However, the image of the emperor could be very different in the provinces. For example, in Syria the inhabitants inscribed an order of Domitian that forbade the requisitioning of pack animals by corrupt officials travelling through the area. The officials were also in the habit of demanding lodgings, which was equally censured.146 These kinds of complaints about the repressive burdens placed on local people by officials are a common feature in just about every pre-modern state.

141 Epictetus, Discourses 1.19. Epictetus was slave to Epaphroditus, a one-time a libellis of Nero. Millar, ‘Epictetus’ (1965). On access and privilege, see Garnsey, Social Status and Legal Privilege (1970), 85. 142 Suet. Dom. 8.1–3; Plin. Ep. 4.11; Cass. Dio 67.4.2, 67.17. 143 See Grelle, ‘Correctio morum’ (1980). 144 Mettius Pompusianus (Suet. Dom. 10.3; Cass. Dio 67.12.2), Acilius Glabrio (Suet. Dom. 10.2; Cass. Dio 67.14.3; Juv. 4.94); Salvidienus Orfitus, the future emperor Nerva and a man simply known as Rufus (Suet. Dom. 10.2; Philostr. V A 7.8–10); Ephaphroditus (Suet. Dom. 14.4; Cass. Dio. 67.14.4); Flavius Clemens (Suet. Dom. 15.1; Cass. Dio 67.14.1). 145 Philostr. V A 8.1–4; De Angelis, ‘The Emperor’s Justice’ (2010), 148–51. The reliability of the account is debatable at best due to the panegyric style. 146 MW 466; Lewis, Greek Historical Documents (1974), 28; Oliver, Greek Constitutions (1989), 125–8.

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Even the response of Domitian followed the stock reply of a ruler far away who seeks to show his concern. With regard to Trajan (r. AD 98–117), a similar picture of an industrious judge who sat with his consilium emerges. Cases from provincials began making their way to the emperor, who, in his rescripts, begins to outline imperial policies as well as replies to individual cases in the provinces.147 Trajan also gave a great deal of attention to civil administration. He conducted trials in the Forum of Augustus, the Portico of Livia, and elsewhere on a tribunal.148 A number of historians paint an admiring picture of Trajan’s legal reforms: that he curbed the influence of delatores, ended the maiestas trials, and protected the rights of minors. Trajan is called ‘the personification of supreme justice’, who thought that although ‘the letter of the law was supreme . . . the spirit of humane justice should prevail’.149 Trajan is also one of the first emperors from whose reign there are cases mentioned at length in the legal sources.150 These rescripts appear to confirm the enlightened opinion on Trajan’s adjudication. A rescript of Trajan to Julius Fronto decrees that in criminal cases a person should not be condemned in absentia. To Adsidius Severus he wrote that no one should be condemned on a suspicion, that it was better for a guilty man to go free than an innocent man to be condemned.151 Another rescript of Trajan in the Digest admits that greed had led the imperial treasury to confiscate the property of relegated persons.152 The positive view of Trajan’s jurisdiction in the ancient sources is not confined to Pliny and the legal sources. Even Dio Chrysostom says of Trajan that the one above the law must have the best sense of justice, just as the one to whom all is permitted must have the best self-control.153 As ideal kingship theories go, Dio’s view was quite close to that presented by Seneca earlier and reflects the view of the emperor as the law animate. Much of our knowledge of Trajan comes from the letters of Pliny, especially in the depiction of his time in Trajan’s consilium in

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Plin. Ep. 4.22, 6.22, 6.31, 7.6, 10.97; Dig. 37.12.5. 149 Cass. Dio 68.10.2. Bennet, Trajan (1997), 118–37. 150 151 Dig. 37.12.5. Dig. 48.19.5. 152 Dig. 48.22.1. Another rescript of Trajan’s in the Digest (Dig. 29.1.24) deals with military wills. 153 Dio Chrys. Or. 3.10. 148

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Centumcellae.154 On the formal aspect of Trajan’s jurisdiction, Pliny remarked that Trajan abided by formalities and laws with utmost punctuality and reverence. For example, if he was holding the consulate and someone approached him with a case and addressed him as emperor, he would respond that he was a consul. He would equally forward to the praetors cases that he thought belonged to them.155 To sum up: The emperor, as described by the sources, is busy and surrounded by his advisers. The availability of the emperor is fundamental to all administration, including the administration of law, because everyone who had access to the emperor could potentially influence his decisions. Thus, one had better chances to prevail in a legal case if one could present the case to the emperor in person.156 This naturally led to more petitions being presented to him. During the period from Tiberius to Trajan, law emerged as the personal responsibility of the emperors. Though the Senate functioned as a court of law in many cases, its jurisdiction was closely linked with that of the emperor.157 According to Pomponius, several of the early emperors advanced the functioning of the law by appointing prefects and additional praetors to deal with specific issues.158 However, the form that imperial jurisdiction took has been debated. Some have argued that the process was more or less ad hoc and depended on the circumstances, while others have maintained that there was a regular imperial court of law. It is probable that the factor of distance reduced the volume of petitions and accusations by provincials that made their way to the emperor. However, it is clear that the emperor was approachable by anyone with sufficient persistence. How the cases were dealt with, and what procedure was applied, might have depended on the suggestion of the parties.159 It has been suggested that there were two parallel developments in imperial legal practice, one being the private response to petitions and the other the regular imperial court. According to this theory, the emperor’s voluntary jurisdiction partly evolved from private arbitration and partly from his imperium, and that should not be confused with the later regular imperial 154 155 156 157 158 159

Plin. Ep. 6.22, 6.31, 7.6; Millar, Emperor (1992 [1977]), 525–6. Plin. Pan. 77.3–4. Eck, ‘Government and Civil Administration’ (2000), 195, 212. Bleicken, Senatsgericht und Kaisergericht (1962), 60–1. Dig. 1.2.2.32. Millar, Emperor (1992 [1977]), 524–5.

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court. The imperial appeals system has similarly a confused procedural background, being both an appeal before and after sentencing.160 In contrast to this theory of spontaneous and irregular jurisdiction, there are a number of theories on the creation of a designated imperial court of law. One of the more substantial ones is Bleicken’s theory of the Senate as the supreme court of the Early Principate that is gradually replaced by the emperor’s own court.161 Bleicken’s theory has been disputed, with critics maintaining that seven known trials involving the Senate during the time of Augustus hardly constitutes proof of it being a regular supreme court.162 Kunkel argues that only during the reign of Tiberius does the Senate gain such a central role, while Garnsey maintains that though the Senate was not a court for the senatorial elite alone, the cases are very much biased towards it.163 Richardson, on the basis of the SC de Pisone patre, argued that the Senate’s jurisdiction was based on a gradual encroachment on areas under the quaestiones perpetuae, especially maiestas.164 What these theories overlook is how divided the narratives of imperial and senatorial jurisdiction are. Most of the narratives depict actions within the imperial court circles in Rome, where cases had a high political significance. Senatorial authors like Tacitus would emphasize the role of the Senate, but equally the way that emperors influenced legal proceedings unofficially. It is not a coincidence that the theories of the Senate’s jurisdiction are mostly based on material from Tacitus. Suetonius and Dio, as is typical of their narratives, focus on the emperor as sole judge. Similarly, the sources outside Rome tended to concentrate on the emperor and his jurisdiction. What all of these sources agree upon is that the will of the emperor was crucial in whatever form that imperial adjudication took. There is other, indirect evidence that the emperor was a regular presence in the law courts. Quintilian’s Institutio oratoria offers advice to pleaders in different courts of law. In the private cases in front of a iudex, one is recommended to take one’s time in getting up and arranging one’s toga. In the public courts, in front of the 160

Wieacker, Römische Rechtsgeschichte (2006), 26–7. Bleicken, Senatsgericht und Kaisergericht (1962), 74, 79–81. 162 Bleicken, Senatsgericht und Kaisergericht (1962), 93–100; Kunkel, ‘Review of Bleicken’ (1964), 365. 163 Kunkel, ‘Die Entstehung’ (1974); Garnsey, Social Status and Legal Privilege (1970), 33–42. 164 Richardson, ‘SC de Cn. Pisone patre’ (1997), 517–18. 161

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emperor, a magistrate, or a tribunal, that is not allowed.165 If it is necessary to give advice on how to appear while pleading a case in front the emperor, we may safely assume that this was more or less a regular occurrence. Pleading in front of an emperor could take place in many different locations. The fact that Claudius heard the Alexandrian embassies in a park was not unusual in itself. From the indications in Roman literature, it would appear that during this period most of the trials presided over by emperors took place in the Forum (Fig. 3.1). De Angelis convincingly claims that the imperial intrusion into the Forum and other public places was not coincidental, and served to highlight the growing power of the emperor over the law and the sidelining of Republican institutions.166 The fact that the emperor was dispensing justice in the Forum would not only be interpreted in the way that imperial power had taken over the Forum, the traditional political and legal centre of Rome, but it is equally a sign of how much openness and accessibility were a part of the emperor’s role. Suetonius’ account of Claudius being harassed by petitioners, even though exaggerated, is indicative of the physical closeness that petitioners gained to the emperor (see Fig. 3.2). The pleaders: would not only call him back when he left the tribunal, but would catch hold of the fringe of his robe, and sometimes of his foot, and thus detain him. . . . a Roman knight . . . hurled the stylus and tablets which he held in his hand into the emperor’s face with such force as to cut his cheek badly, at the same time loudly reviling his cruelty and stupidity. adeo causidicos patientia eius solitos abuti, ut discedentem e tribunali non solum voce revocarent, sed et lacinia togae retenta, interdum pede apprehenso detinerent. . . . Equitem quidem Romanum . . . graphium et libellos, quos tenebat in manu, ita cum magna stultitiae et saevitiae exprobratione iecisse in faciem eius, ut genam non leviter perstrinxerit.167

It is interesting that while these episodes are presented as signs of Claudius’ weakness, the underlying assumption is that the emperor

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Quint. Inst. 11.3.156. De Angelis, ‘The Emperor’s Justice’ (2010), 127–59. Dispensing justice in the Forum: Cass. Dio 57.7.2–6 (Tiberius); Tac. Ann. 12.43 (Claudius); Cass. Dio 65 (66).10.5 (Vespasian); Suet. Dom. 8.1 (Domitian); Other places: Suet. Claud. 33 (Claudius in the Forum of Augustus); Cass. Dio 69.7.1 (Trajan at the Forum, Portico of Livia, and in the Pantheon). 167 Suet. Claud. 15. Tr. Rolfe. 166

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was expected to tolerate the closeness and the turbulence of the court situations, but that the attacking of the person of the emperor crossed the line. A similar account by Tacitus of Claudius being harassed by people in the Forum while sitting in judgment showed him being attacked by the mob and forced to retreat to a corner before being rescued by troops (Ann. 12.43). In Tacitus’ narrative, exceptional trials could take place in the imperial cubiculum, outside the view of the public. For example, the trial of Valerius Asiaticus by Claudius was held intra cubiculum, which Tacitus clearly presents as one of the many troubling features of this case instigated by Messalina.168 These trials were used to demonstrate the murky nature of political justice. Thus, when Nero comes to the throne, one of his first promises would be to limit his judicial activities and to abolish trials in cubiculum: He [Nero] would not constitute himself a judge of all cases, secluding accusers and defendants within the same four walls and allowing the influence of a few individuals to run riot. Under his roof would be no venality, no loophole for intrigue: the palace and the state would be things separate. non enim se negotiorum omnium iudicem fore, ut clausis unam intra domum accusatoribus et reis paucorum potentia grassaretur; nihil in penatibus suis venale aut ambitioni pervium; discretam domum et rem publicam.169

Philostratus relates that the trial of Apollonius under Domitian took place in the imperial palace as well, but not in cubiculum. The location is described by Philostratus as an auditorium, a large hall purpose-built for rhetorical presentations. A large audience of notables would have gathered to hear the trial. In the account of Philostratus, it is precisely this audience, with its applause, that forces Domitian to acquit Apollonius, despite his intention to convict him. Though the duality of imperial adjudication has often been seen as that between the Forum and the cubiculum, that distinction was slowly being eroded by the monumentalization of the Palatine and the vast reception halls built there (Fig. 3.3).170

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DEFINING IMPERIAL POWERS: LEX DE IMPERIO VESPAS IANI There were even official attempts to legally define the powers of the Roman emperor. The only such attempt to have left us with a text of the law is the lex de imperio Vespasiani from the year 70. However, even that rare law demonstrates the importance of precedent and history in the understanding of the duties and powers of the emperor. While Seneca and the practice of imperial adjudication emphasize imperial sovereignty and unlimited scope in the field of law, the lex de imperio Vespasiani (CIL VI 930, 31207=ILS 244) was the first instance where these principles were stated outright. The purpose of this section is to investigate the lex de imperio Vespasiani in light of imperial adjudication and jurisdiction. While the law remains silent on adjudication, its emphasis on discretionary powers and exempla are indicative of how one may approach the gradual development of imperial adjudication through exceptionality and new practices. The famous lex de imperio Vespasiani,171 known from epigraphic evidence, was a piece of comitial legislation that granted the powers of the emperor to Vespasian in December 69. The text is known from a large bronze tablet discovered by Cola di Rienzo in the fourteenth century and currently held at the Musei Capitolini in Rome. The text of the law is partially preserved, in that there would have been another tablet preceding the surviving one, which Cola di Rienzo may or may not have seen at the time of discovery but has since been lost. Thus the title of the law, lex de imperio Vespasiani, is a modern reconstruction, the original being unknown. From the historical records we can gather that the promulgation of the law was a speedy affair. Just a day or two after the killing of Vitellius, the previous emperor, the Senate recognized Vespasian as the new ruler, and a lex rogata containing the preserved passages was probably issued in

171 Last, ‘Princeps and the Constitution’ (1936), 404–8; De Martino, Storia (1974), 4:462–467; Brunt, ‘Lex de imperio Vespasiani’ (1977), 95–116; Lucrezi, Leges super principem (1982); Hurlet, ‘Lex de imperio’ (1993); Purpura, ‘Tavola perduta’ (1998); Mantovani, ‘Les clauses’ (2005); López, Poder del príncipe (2006); Mantovani, ‘Le clausole’ (2006); Malavolta, ‘Sulla clausola discrezionale’ (2008); Levick, ‘Lex de imperio Vespasiani’ (2009); Mantovani ‘Lex «regia» de imperio Vespasiani’ (2009).

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January. Vespasian was still in Alexandria, and even the commander of his forces in Italy was not yet present in Rome.172 The surviving text of the lex is arranged in eight clauses and a sanction. The beginning of the text is missing, including the preamble and possibly a whole tablet’s-worth of material.173 The extant text begins with a list of what Vespasian is lawfully allowed to do and the precedent from earlier emperors for each right. He may make treaties (like Augustus, Tiberius, and Claudius); he may hold a session of the Senate and propose motions to the Senate (like Tiberius and Claudius); that even decisions of extraordinary sessions of the Senate convened by Vespasian had the power of law (no precedent is cited here); he may endorse candidates in elections (no precedent), and he may extend the pomerium (like Tiberius). Then the text moves on to the potentially most interesting part, the sixth clause, also known as the discretionary clause: And that whatever he shall deem to be according to the custom of the res publica and the ‘greatness’ of divine and human, public and private matters, there be right and power for him to undertake and to do, just as there was for the divine Augustus, Tiberius Iulius Caesar Augustus, and Tiberius Claudius Caesar Augustus Germanicus; . . . utique quaecunque ex usu rei publicae maiestateque diuinarum | humarum publicarum priuatarumque rerum esse {e} | censebit, ei agere facere ius potestasque sit, ita uti diuo Aug(usto), Tiberioque Iulio Caesari Aug(usto), | Tiberioque Claudio Caesari | Aug(usto) Germanico fuit; . . . 174

To underline the point about the wide discretionary powers of Vespasian, the rest of the text states that not only is the emperor not bound by laws, but also whatever he did before this law was enacted was also legal: And that in whatever statutes or plebiscites it is written down, that the divine Augustus, or Tiberius Iulius Caesar Augustus, and Tiberius Claudius Caesar Augustus Germanicus should not be bound, the 172 Malavolta, ‘Sulla clausola discrezionale’ (2008), 105–6; Levick, ‘Lex de imperio Vespasiani’ (2009); Brunt, ‘Lex de imperio Vespasiani’ (1977). On the discovery of the inscription by Cola di Rienzo and the possibility of reconstructing the missing passages from the account of the anonymous chronicler (Anonimo Romano), see Bruun, ‘Riflessioni’ (2009). 173 Purpura, ‘Tavola perduta’ (1998). 174 Tr. Crawford, Statutes (1996), 553.

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emperor Caesar Vespasian should be released from those statutes and plebiscites; and that whatever it was appropriate for the divine Augustus, or Tiberius Iulius Caesar Augustus, or Tiberius Claudius Caesar Augustus Germanicus to do according to any statute or rogatio, it be lawful for the emperor Caesar Vespasian to do all those things; And that whatever before the proposal of this statute has been undertaken, carried out, decreed or ordered by the emperor Caesar Vespasian Augustus or by anyone according to his order or mandate, they be lawful and binding, just as if they had been undertaken according to the order of the people or plebs. utique quibus legibus plebeiue scitis scriptum fuit, ne diuus Aug(ustus), | Tiberiusue Iulius Caesar Aug(ustus), Tiberiusque Claudius Caesar Aug (ustus) | Germanicus tenerentur, iis legibus plebisque scitis imp(erator) Caesar | Vespasianus solutus sit; quaeque ex quaque lege rogatione | diuum Aug(ustum), Tiberiumue Iulium Caesarem Aug(ustum), Tiberiumue | Claudium Caesarem Aug(ustum) Germanicum facere oportuit, | ea omnia imp(eratori) Caesari Vespasiano Aug(usto) facere liceat; | utique quae ante hanc legem rogatam acta gesta | decreta imperata ab imperatore Caesare Vespasiano Aug(usto) | iussu mandatuue eius a quoque sunt, ea perinde iusta rataq(ue) | sint, ac si populi plebisue iussu acta essent.175

To summarize the convoluted legalese, the rights given are: (1) the right to make treaties, (2) the right to convene the Senate and to pass decrees, (3) that these decisions are made as if sanctioned by law, (4) the right to extend the pomerium, (5) the right to select and endorse candidates for office, (6) the right to do whatever he holds to be customary for the advancement of the public good, (7) that the emperor is not bound by laws and what was permitted by law for his predecessors, he shall also be permitted to do, and (8) what he had done before is also lawful and binding.176 It is, of course, highly debatable how much one could define the imperial powers by the concept of rights, just as the concept of law was problematic in this context. There are some notable omissions that may or may not be due to the fact that the first part of the law is missing. For the purpose of this book, the most notable absence is that of any reference to the emperor as judge. From the regular imperial powers, the absence of tribunicia potestas and imperium proconsulare is equally noteworthy, though it

175 176

Tr. Crawford, Statutes (1996), 553. Crawford, Statutes (1996), n. 39.

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is possible that they were either conferred by a separate assembly or that it was seen to be included in rights (2) and (3).177 Clause 6, the first of the discretionary clauses, has obviously caused the most discussion, as the wording of the text is less than clear: ex usu rei publicae maiestate divinarum humanarum publicarum privatarumque rerum esse censebit, ei agere facere ius potestasque sit (ll. 17–19). It has been suggested that this was either an emergency clause or a clause raising the emperor above the law. The first is not indicated in the text, while the second option would make the rest of the law logically redundant. It is true that the clause limits the emperor’s options to what is customary in Rome and what he considers to be to the greater majesty of matters divine and human, public and private.178 That is not much of a limitation. Another theory is that the clause was simply a show of trust, an authorization for the emperor to act for the public good as he saw fit, regardless of existing laws, but simultaneously noting that the emperor was legibus solutus. Brunt even suggested that this would include not only legislation, but by extension adjudication.179 The only limitation would have been created by the description of the area in which the emperor is supposed to act, limiting him through precedent and expectation.180 If the adjudicative duties of the emperor were not covered in a clause in the missing part of the law, they would clearly be covered by the discretionary clause. The genius of the wording in clause 6 is that it simultaneously gives a blanket authorization but prohibits actions that are unprecedented. In sum, everything is possible unless it is done for the first time. Much of the debate over the law has been whether the law actually was a restatement of the customary powers and duties of the emperor or if it gave new powers to Vespasian. Underlying this debate was the Mantovani ‘Lex «regia» de imperio Vespasiani’ (2009), infers that it is possible that the lex de imperio was just one of many acts that were used to confer to Vespasian the full rights of the emperor. Whether there was a shared understanding of any fixed ‘rights’ that the emperor had is, of course, another issue. 178 Crawford, Statutes (1996), 549–50. The theories of it as an emergency clause are quite popular, e.g. Last, ‘Princeps and the Constitution’ (1936), 404–8; De Martino, Storia (1962), 4:443–4; Hurlet, ‘Lex de imperio’ (1993), 271–3. The raising of the emperor above the laws was supported by Mommsen, Staatsrecht (1871–88), 2.2:909; Magdelain, Auctoritas (1947), 92. 179 Brunt, ‘Lex de imperio Vespasiani’ (1977), 109–15. 180 Ando, Imperial Ideology (2000), 156–7; Crawford, Statutes (1996), 549–50; Hurlet, ‘Lex de imperio’ (1993), 271–3. 177

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larger issue of whether the law was a unique phenomenon or that there were a series of similar laws conferring rights to successive emperors.181 The theory that the law was tralatician found support in the fact that the law mentioned the previous emperors who had had the same rights. The theory that Vespasian would have been granted rights surpassing his predecessors was similarly founded on the basis that three of the existing clauses have no mention of precedent.182 One major theory is that the document is tralatician and did not limit or enlarge rights given to Vespasian. The fact that all but three clauses cite the precedents of previous emperors conforms to this theory, indicating that there would have been a series of laws for different emperors. Even the three clauses with missing precedents were not new rights, but rights that were given to emperors such as Caligula or Nero, who were, either formally or in practice, not remembered.183 One of the more recent theories claims that Vespasian wanted to found his rule on a legal basis as a magistracy in addition to the unstable hereditary autocracy.184 Based on the information about previous grants of imperium, supporters of this theory assert that Vespasian did not ask for and did not receive powers that exceeded those voted to previous rulers.185 Would that mean that Vespasian sought to limit the emperor’s power or that the emperor’s power had some formal limits? Even Seneca had written that everything is allowed for the emperor (Ad Pol. 7.2) and that he had absolute authority (Clem. 1.1–3), but only under certain conditions. This theory has recently been challenged by suggestions that the three clauses were not about rights at all, but instead were for the purpose of regulating the acts of the princeps and the effects that they had.186 This would amount to a conscious reversal from 181 López, Poder del príncipe (2006), 204–5, outlines the very long discussion on the tralatician nature of the lex de imperio. Mommsen, Staatsrecht (1871–88), 2.2:876–81) would appear to be the founder of the tralatician school, while Hirschfeld, Kaiserliche Verwaltungsbeamten (1975), 475 initiated the theory of the unique nature of the law. On the debate on the grant of imperium, see Levick, ‘Lex de imperio Vespasiani’ (2009). 182 Mantovani, ‘Le clausole’ (2006). 183 Brunt, ‘Lex de imperio Vespasiani’ (1977), 103–7. 184 Lucrezi, Aspetti giuridici del principato (1995), 166–7. 185 As demonstrated already by Brunt, ‘Lex de imperio Vespasiani’ (1977), 97–102. 186 Mantovani, ‘Les clauses’ (2005), 42–3; Mantovani, ‘Le clausole’ (2006).

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the traditional interpretations that see the lex in the light of Ulpian’s legal writings on the position of the emperor.187 It is true that the lex de imperio Vespasiani is followed by later references to a lex regia described by jurists,188 who allude to a lex granting powers to the emperor. Such allusions, as well as the theories of the tralatician nature of the lex de imperio, are tempting as they would provide an answer to the mystery of the legal powers of the emperors and the solitary extant law that explained how those powers came to be. The fact that in clause 7 Vespasian was freed from the same laws as his predecessors did not necessarily mean that he was freed from observing all laws. Even though the law claims that there was precedent extending all the way back to Augustus that the emperor was limited by only his own good judgment, this was a normative statement rather than a historical interpretation.189 While much of the older scholarship had emphasized the powers and rights that the law granted to Vespasian, there have recently emerged suggestions that the purpose of the law was not to say what the emperor could do but what he should do. The significance of examples is a recognized part of the Roman experience of governance, and the early Principate is no exception. Emperors from Tiberius onwards employed Augustus as a model in their governance. This theory suggests that the meaning of exemplary governance extends well beyond the reputation of individual rulers to defining the legality and legitimacy of imperial positions. Therefore, it was vital to define good and bad emperors, to delimit acceptable and unacceptable behaviour. This also explains why the bad emperors do not get mentioned in the lex de imperio Vespasiani. Rather than using a strict and exhaustive catalogue of powers that an emperor may possess, the tradition extending from the Republic stressed the use of exempla in a normative but innovative fashion to show what was possible.190 The use of exempla is attested elsewhere in legal texts. For example, the Flavian municipal law called lex Irnitana contains an interesting general degree referring to legislation. According to this degree, the Malavolta, ‘Sulla clausola discrezionale’ (2008), 112–19. Gai. Inst. 1.5; Dig. 1.4.1; Cod. Iust. 6.23.3; Inst. Iust. 1.2.6; Const. Deo auctore 7. 189 Brunt, ‘Lex de imperio Vespasiani’ (1977), 108, 114–15. Brunt suggests that the model of the lex de imperio dates from AD 37 and reflects the situation at the time, but see equally Levick, ‘Lex de imperio Vespasiani’ (2009). 190 Peachin, ‘Exemplary Government’ (2007), 80–1, 85, 88–9; Hurlet, ‘Lex de imperio’ (1993), 279; Ando, Imperial Ideology (2000), 156. 187 188

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acts of the local magistrates should not be in contradiction to statutes, plebiscites, decrees of the Senate, edicts, judgments or constitutions of Augustus, Tiberius, Claudius, Galba, Vespasian, Titus, or Domitian.191 The emperors notably absent from this list are Caligula, Nero, Otho, and Vitellius. Though the absences may be explained by damnatio, it should be noted that Caligula is absent both from here and the lex de imperio Vespasiani, despite the fact that his memory was not officially condemned. One possibility is that Caligula was not thought to be a suitable exemplum. Pliny is, as we will see, a staunch supporter of the theory of exemplary government as a way of encouraging correct behaviour instead of fixed constitutional rules. In a letter to Aristo, Pliny mentions how practice was the Roman constitution, how the education of a Roman gentleman involved so much observation of how the state worked, how legislation was passed, the privileges of senators, the powers of magistrates, and so on.192 Even Tacitus, who writes how the selection of Vespasian was done with a near-routine procedure, with the Senate voting to grant the emperor the usual honours and privileges (cuncta solita),193 appears to support the idea that the standard operating procedure was followed. There is an interesting point about authorship of the senatusconsultum that was passed a day after Vitellius, his son, and his brother were killed, and that formed the basis of the lex de imperio Vespasiani. While the exact events and the main actors that took part in them are unclear, it is interesting that such a law would be passed immediately after the transfer of power. Vespasian, being in Alexandria, could hardly have been in a position to have influenced the content of the law. Even the commander of his forces in Italy had not arrived in Rome.194 There are, in essence, two options that are in any way probable. The first is that the law was tralatician, and thus what the Senate did was a copy-and-paste job; it took the old lex de imperio, revised the list of precedents, and passed it without any debate on or major changes in the content.195 The second option is that the Senate Lex Irnitana IIIA (Ch. 19); González, ‘Lex Irnitana’ (1986), 147–243. 193 Plin. Ep. 8.14. Tac. Hist. 4.3. 194 Tac. Hist. 3.83–6, 4.2–4. The theory that the Lex de imperio Vespasiani followed the preceding SC can be traced to Mommsen, Staatsrecht (1871–88), 2.2:877–8, but has been supported by recent scholars like Hurlet, ‘Lex de imperio’ (1993) and Lucrezi, Leges super principem (1982). 195 López, Poder del príncipe (2006), 204–5. 191 192

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quickly formed a list of the powers of the emperor and the exempla that the Senate thought were worth following. Since the incoming emperor was an outsider, outlining in writing what was previously thought to have been commonly understood was seen to be necessary to uphold the legal and administrative traditions that had developed.196 At the same time, one is faced with the issue of what the true significance of such a law was. This relates to the issue of whether it was a foundational text or a statement recognizing what already had existed.197 Was there any sense in making a law to state that someone is not bound by the law? What is clear is that such a text, with its legal formulations and precedents, was important, at least in the same sense as legal rituals and formalities were considered to have a value of their own. If the fulfilment of rituals and formalities was not important, it is hard to see why the Arval Brothers, a secretive priestly collegium led by the emperor, made six different sacrifices connected to the different powers granted to the emperor Otho (his election to the consulate, priesthoods, tribunician power, acclamation as imperator) during his four-month-long reign in AD 69.198 Formal legal acts and the observation of what was thought to be correct procedure were clearly not simply decorum, but a large part of what was considered the right and proper way for an emperor to act and the Roman polity to function. Scholars have long recognized that the ambiguous nature of the law was a crucial sign of the emperor’s advent into the Roman constitutional structure. While some claim that the law was a contract between the emperor, the Senate, and the Roman people, others maintain that the contract was actually a dictate willed, constructed, and imposed by the new emperor.199 The main point about the importance of lex de imperio Vespasiani to the development of imperial jurisdiction is that it would reinforce 196 Eck, ‘Senatorische Führungsschicht’ (2009) has noted that Vespasian adopted a policy of advancing the careers of the senatorial elite by elevating them to suffect consulships, but used the same method to reward his own military allies. 197 Lanza, ‘Sovranità’ (2009), 184: ‘La lex de imperio ha una funzione importante ma non centrale, non fondativa.’ 198 Scheid, Fratrum Arvalium (1998), vol. 1, no. 40, pp. 99–105; Ando, ‘Republican Constitutionalism’ (2013). 199 Lucrezi, Leges super principem (1982), 148–51 suggests that the text of the lex would already have been formulated in the summer of 69.

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both the discretionary powers of the emperor and the relevance of examples in the way that imperial power was used. Both of these were crucial components of the way in which imperial jurisdiction evolved. While this theory is supported by the fact that it was clearly the new emperor that held the factual power, as was evident from the fact that his agents had just eliminated the competition, what it overlooks is that while Vespasian had the power and the army, the Senate was still the guardian of tradition and had access to lawyers. If the authorship of the text lies in the Senate and the aristocracy, its aim would thus not be to consolidate the power of the emperor, which would have been largely redundant due to his victory in the field, but to tie the newly minted emperor into the existing tradition. As the clauses grant considerable retroactive powers and immunities to Vespasian, it is understandable to ascribe authorship to his circle. However, the rest of the text seeks to tie the emperor both to the Republican framework of constitution and the actions of previous emperors that were deemed acceptable by the aristocracy. Far from the unfettered powers of the emperor presented by Seneca and Pliny, the emperor of lex de imperio Vespasiani is constrained in his actions by the weight of tradition. Even though the discretionary clause gives him considerable liberty of action, that liberty is meant to be exercised only in the way the imperial exempla demonstrate. Vespasian does, of course, have the power to do whatever he wishes, but the aim of the text is similar to Seneca’s De clementia and Pliny’s Panegyric of Trajan: it illustrates how the emperor should act in order to be counted among the good, exemplary emperors.

TACITUS AND TIBERIUS AS JUDGE For the period from Tiberius to Domitian, Tacitus forms our most important historical source. However, his presentation of history, reflecting as it does his own values and prejudices, is problematic, in ways which we will examine in the following section through his portrayal of Tiberius’s adjudication. Tacitus’ portrayal of Tiberius is rather hostile, but it nevertheless contains important information about the understanding of the legal capabilities of the emperor. While it has commonly been suggested that the depiction of Tiberius is, for Tacitus, an image of Domitian and reflects the uneasy balance

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of power between the emperor and the Senate,200 beyond this main narrative Tacitus reveals a wealth of practical details on how the emperor acted in the legal world. Reading the Tacitean narratives, it should be kept in mind that Tacitus’ Tiberius is shown as a judge only in high-profile cases involving the upper echelons of society. The cases that Tacitus mentions are those that are decidedly not routine or unremarkable, but rather events that were discussed and remembered years afterwards. Consequently, it remains unclear whether this reflects the actual situation or the conventions of historiography that accentuate the exceptional and forget the routine.201 In general, Tacitus recounts a plethora of trials; a recent inquiry has listed some 200 cases that were cited. Tacitus equally shows the rise of the delatores and their central role in the trials for maiestas.202 However, the majority of trials are mentioned only briefly, often in a barrage of trials to convey dramatic effect.203 The image one gets from Tacitus is that imperial jurisdiction was largely optional and linked to the Senate in its execution. That this is due to Tacitus’ emphasis on the rights of the Senate is possible, especially since Pliny does not mention the Senate at all. On the other hand, Pliny does mention routine cases and how they were handled, which are invisible in Tacitus.204 On the whole, there is a dualism in the description of imperial jurisdiction that reflects more generally the image of emperors in Tacitus. On the one hand there is the routine of jurisdiction, on the other, the cruelties and injustices that the

200 Syme, Tacitus (1958), 420–34. However, see Yavetz, Tiberio (1999) and Mellor, Tacitus’ Annals (2011) for a reinterpretation of Tacitus’ predispositions in general and about Tiberius specifically. See also Henry, Annals of Tacitus (1968); Mehl, Tacitus über Kaiser Claudius (1974); Luce and Woodman, Tacitus and the Tacitean Tradition (1993); Griffin, ‘Tacitus as a Historian’ (2009). 201 Devillers, Tacite et les sources (2003). 202 While the Tacitus’s narrative shows the delatores as universally despised, their importance to imperial adjudication was great. They were given monetary rewards and specific rules allowed their testimony to be presented in cases of maiestas even though they would have otherwise been barred from making accusations (Dig. 48.4.7–8). On delatores, see Robinson, ‘Delators’ (2007); Rivière, Délateurs (2002) and the references therein. 203 Bablitz, ‘Tacitus on Trial(s)’ (2014). Only four trials are treated with more than 45 lines (p. 70). 204 Especially in the early years, important cases were handled by the Senate: Tac. Ann. 2.32, 2.67, 3.22, 4.15. On the criminal cases, see Schilling, Poena extraordinaria (2010), 119–88.

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emperors engaged in. A similar pattern is visible in the narratives of the reigns of Tiberius, Caligula, Claudius, Nero, and Domitian. The majority of lawsuits that Tacitus mentions Tiberius as having handled are exceptional criminal cases. Tacitus records how Tiberius examined a case of a praetor who had killed his wife: About this time, the praetor Plautius Silvanus, for reasons not ascertained, flung his wife Apronia out of the window, and, when brought before the emperor by his father-in-law, Lucius Apronius, gave an incoherent reply to the effect that he had himself been fast asleep and was therefore ignorant of the facts; his wife, he thought, must have committed suicide. Without any hesitation, Tiberius went straight to the house and examined the bedroom, in which traces were visible of resistance offered and force employed. He referred the case to the senate, and a judicial committee had been formed, when Silvanus’ grandmother Urgulania sent her descendant a dagger. In view of Augusta’s friendship with Urgulania, the action was considered as equivalent to a hint from the emperor: the accused, after a fruitless attempt with the weapon, arranged for his arteries to be opened. Per idem tempus Plautius Silvanus praetor incertis causis Aproniam coniugem in praeceps iecit, tractusque ad Caesarem ab L. Apronio socero turbata mente respondit, tamquam ipse somno gravis atque eo ignarus, et uxor sponte mortem sumpsisset. Non cunctanter Tiberius pergit in domum, visit cubiculum, in quo reluctantis et impulsae vestigia cernebantur. Refert ad senatum, datisque iudicibus Vrgulania Silvani avia pugionem nepoti misit. Quod perinde creditum quasi principis monitu ob amicitiam Augustae cum Vrgulania. Reus frustra temptato ferro venas praebuit exolvendas.205

The case is significant in a number of ways. First of all, the accused is a praetor, the chief jurisdictional magistrate responsible under the Republican system and very high in the official hierarchy of the Principate. The second is that the victim’s father appealed directly to Tiberius, possibly immediately after the event. Tiberius rushes right away (non cunctanter) to the scene of the crime as a one-man imperial crime-scene unit and examines the traces of violence, ruling 205 Tac. Ann. 4.22. Tr. J. Jackson. Urgulania had even an earlier run-in with the law, when she refused to obey a summons because of her friendship with Livia and had to be coaxed to appear by a public display by Tiberius (Tac. Ann. 2.34), see also Rogers, Criminal Trials (1935), 188–9. On Tacitus and the trial, see Hicks, ‘Prosecution of Silvanus’ (2013), 55–64; Bablitz, ‘Tacitus on Trial(s)’ (2014), 73. On Urgulania and the law, see Sailor, Writing and Empire (2008), 30–2.

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out suicide that the husband suggested. Case solved, Tiberius then referred the case to the Senate, possibly due to the high rank of the accused or the fact that cases such as these were normally within the Senate’s jurisdiction. Nevertheless, the active agent in the case is clearly Tiberius, who, after being appealed to, takes action. It is unclear from the depictions of Tacitus what the relative jurisdictions of the emperor and the Senate actually were. For example, Tiberius also referred the trial of Piso to the Senate after hearing the accusations and the answers of the accused with some friends sitting as his assessors.206 In the case of Silvanus, despite the fact that the trial had been assigned to a judicial committee of the Senate, the emperor resolved it though indirect means (by the suggestion of suicide). That Tiberius was actually behind the sending of the dagger is naturally Tacitus’ interpretation that perhaps mirrors the popular understanding at the time. Whether or not that reflects the actual situation is, of course, debatable. However it may have been, what is clear is that the emperor, despite recusing himself and the case being assigned to the Senate, is understood as the invisible hand whose presence is seen to influence the case. Tacitus describes the inclusion of the emperor into the legal system as a process of the gradual degradation of the Republican tradition. During the early years of his reign, Tiberius would have been adamant in restricting the involvement of the emperor in legal affairs. He has Tiberius say that the old Romans had ruled that an offence should be followed by a penalty, and this wise system should be followed:207 Princes have enough burdens—enough, even, of power: the rights of the subject shrank as autocracy grew; and, where it was possible to proceed by form of law, it was a mistake to employ the fiat of the sovereign. satis onerum principibus, satis etiam potentiae. minui iura quotiens gliscat potestas, nec utendum imperio ubi legibus agi possit.208

What Tiberius is saying is that it is unnecessary to use imperial power where regular legal procedure is sufficient. Even here, Tacitus hints that this pronouncement of republicanism was as rare as it was politically calculated. The true intentions of Tiberius were obvious to Tacitus, and it has been rightly claimed that Tacitus used the murder of Agrippa Postumus after the death of Augustus to show 206 208

207 Tac. Ann. 3.10. Tac. Ann. 3.69. Tac. Ann. 3.69. Tr. Jackson. This took place in the year 22.

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that secrecy would be the guiding principle of Tiberius’ reign.209 What Tacitus intends to show is how this tendency became more pronounced over time. His opinion on the emperor’s entry into the legal world mirrors Tacitus’ view of Tiberius’ rule in general as a process of constant deterioration. At first the Senate was in charge, the discussion free, and flattery was curtailed by the emperor himself. The magistrates operated normally and the laws were not misused, with the exception of cases of treason. The imperial staff was small and unassuming. If there was a case between the emperor and a private citizen, the case was resolved in a court of law. This happy state of affairs lasted until the death of Drusus and the ascendancy of Sejanus.210 The case of Ennius in AD 22 is a good example of the defence of senatorial interests in Tacitus. Lucius Ennius was, according to Tacitus, accused of maiestas because he melted a statuette of the emperor into a silver plate. Tiberius barred the case from the court, though Ateius Capito protested, saying that decision should have been one of the Senate, not the emperor. Tiberius persisted in his decision, which was a significant setback for Capito, a noted legal authority and a favourite of the emperor.211 The interesting matter of principle behind the dispute has not received too much attention, so it is perhaps enlightening to elaborate on it. What Capito is suggesting is that the image of the emperor is a symbol of the state and the office of the emperor, and thus insults against it should have been in state jurisdiction, that is, the jurisdiction of the Senate. However, Tiberius had the opposite view, equating himself as a person and as the holder of the office, giving him the power to decide whether his majesty had been insulted or not. Thus, while the traditional view, as implied in the SC de Pisone patre, was that the understanding of maiestas equalled the majesty of the Roman people and the majesty of the emperor,212 in this case Tiberius unilaterally severs this connection. Because there was a widespread assumption that the emperor had influence beyond the official and visible channels, as was seen in the case of Silvanus, Tiberius became wary of even the appearance of an influence behind the scenes over actions that he had nothing to do with. For example, Tacitus mentions how Cocceius Nerva chose to 209 210 212

Kehoe, ‘Tacitus and Sallustius Crispus’ (1985), 247, 253. 211 Tac. Ann. 4.6–7. Tac. Ann. 3.70. Ando, Law, Language, and Empire (2011), 105.

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end his life by starvation. Because he was one of Tiberius’ closest friends, his position was unchallenged, and his health good, the decision caused some consternation. In fact, Tiberius went to plead with him to choose life and to give some reason for wanting to die. Furthermore, he said that it would cause serious damage to both his own conscience and his reputation if one of his closest associates chose death over life. Nerva refused all conversation and continued to opt for death.213 While Tiberius, especially early in his reign, was respectful of the authority of the Senate and sought to limit his own jurisdiction, similar self-control was not typical of his later reign and the reigns of his followers. According to Tacitus, Tiberius began the practice of charging opponents with maiestas, but the use of maiestas trials expanded under Claudius. Tacitus sees Claudius as a weak and indecisive character who was guided by unscrupulous freedmen and his scheming wife, Messalina.214 Tacitus shows the increasing corruption of imperial jurisdiction during the time of Claudius through several notorious cases. He raises the trial of Valerius Asiaticus by Claudius as an example of Messalina’s corrupting influence. Asiaticus was tried intra cubiculum, in the imperial bedchamber, not in the Senate as would have been customary. Messalina, who was clearly behind the charges, was present to watch her protégé Suillius present the accusations against her former lover Asiaticus in order to destroy his mistress Poppaea, who was noted for her beauty. Suillius presented charges of corrupting the military and every form of infamy, including sexual effeminacy. The last accusation provoked Asiaticus to defend his manhood, and his defence clearly moved Claudius. This troubled Messalina, who had already driven Poppaea to suicide before the trial. Claudius, who dined with Poppaea’s husband a couple of days later, was completely unaware of this, and asked why Poppaea had not joined them for dinner.215 Finally, when Messalina’s plot to kill Claudius was exposed, Messalina, her lover Silius, and their associates were tried by Claudius and executed; the trial was carefully orchestrated by his freedmen to prevent Claudius from pardoning his wife.216 213

Tac. Ann. 6.26. Mellor, Tacitus’ Annals (2011), 145 remarks that Tacitus was both misogynist and xenophobe, not to mention his antipathy towards the lower classes. 215 216 Tac. Ann. 11.2. Tac. Ann. 11.34–8. 214

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While Tacitus mentions numerous cases decided by emperors, most of them give little information about the functioning of imperial jurisdiction. Nevertheless, there are some indications of how cases came to be judged by the emperor. Two were already mentioned earlier in relation to Nero, the cases of imperial functionaries who overstepped their limits. Tacitus recounts how Nero convicted L. Fabricius Veiento because he had composed a series of books with libellous attacks on senators and priests. Because the accuser had added to the charges the accusation of selling imperial property, Nero adjudicated the case himself.217 Tacitus mentions that when Publius Celer was accused by the province of Asia, Nero could not acquit him. Instead, he kept the case in abeyance until the defendant died of old age.218 If the emperor was the supreme judge and enjoyed unfettered power, why would Tacitus suggest that Nero could not have acquitted him? Tacitus clearly had a contradictory relationship with the laws in general. The extent to which the law is equated with the emperor is shown when Tacitus describes how after Pompey’s time, for two decades, law and custom (mos) ceased to exist, but Augustus brought laws that gave Rome both peace and imperial rule.219 However, of the first triumvirate, Tacitus notes that when the state was at its most corrupt it had the most laws.220 Tacitus’ image of the emperor’s jurisdiction and its transformation is a reflection of the way that he approaches imperial power in general. For him, the emperor is, or should be, clearly the princeps senatus, the first among equal senators. Thus he emphasizes, with clear determination, the role of the Senate in adjudication. Whether this is an accurate reflection of the historical situation is, of course, something that we cannot know for certain. However, the cases that he relates are so clearly focused on the imperial family, the senatorial elite of Rome, and their power-struggles and strife that imagining that they reflect the whole of imperial adjudication would be misguided. Like the panegyric literature that we will turn our attention to next, the heavily critical approach of Tacitus to the growing imperial power and the abuses of emperors can be seen as a form of flattery—an

217 219 220

218 Tac. Ann. 14.50. Tac. Ann. 13.33. Tac. Ann. 3.28. See also Christ, ‘Tacitus und der Prinzipat’ (1978), 449–87. Tac. Ann. 3.27 corruptissima re publica plurimae leges.

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inverted flattery, to be precise.221 This means that the criticism he presents is not unlike the criticism that Pliny aims against the ‘bad’ emperors, negative examples of unacceptable behaviour. However, part of the blame Tacitus apportions to the weakness of the Senate itself, which was unable to exert any kind of restraining influence on the excesses of emperors in their adjudication.222

PLINY AND THE OPTIMUS PRINCEPS Pliny’s good emperor is Trajan,223 with whom he worked on numerous occasions as an assessor or a member of the consilium.224 Because of this background, the judicial side is pronounced in Pliny’s letters as well as in the panegyric to Trajan. In the following section I shall explore the idealized image of Trajan as judge in the works of Pliny. Like Seneca’s Nero should have been, Pliny’s Trajan is the proverbial good judge, who is simultaneously conscientious and follows procedure, but wisely seeks the advice of his council and tries to find the most equitable solution, not only in Rome but through his correspondence, for the whole empire. Pliny’s story of working as Trajan’s councillor in Centumcellae pictures him as an ideal judge. The story, contained in a letter to an otherwise unknown Cornelianus and dated with some probability to mid-107, is an interesting, though probably somewhat unusual, depiction of imperial adjudication:225 I was delighted to be summoned by the Emperor to act as his assessor at Centumcellae (as this place is called). Nothing could give me more pleasure than to have first-hand experience of our ruler’s justice and Wilson, ‘Tacitus, Suetonius, Juvenal’ (2003), 527. Ginsburg, ‘In maiores certamina’ (1993), 102 argues that this impotence of the Senate is evident in the case where Pedanius’ 400 innocent slaves were sentenced to be killed (Tac. Ann. 14.42–5). However, this is perhaps not completely accurate, because while some senators were able present only a weak protest, it was the majority of the Senate that insisted on the execution. 223 Fell, Optimus princeps? (1992); Wolf, Politik und Gerechtigkeit (1978). On Trajan’s style of government, see Millar, ‘Trajan’ (2004). 224 On Trajan’s consilium, see Tissoni, ‘Consilium principis’ (1965). 225 Sherwin-White, Letters of Pliny (1966), 391; Fell, Optimus princeps? (1992), 119–20. 221 222

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wisdom and also to see his lighter moods, in the sort of country environment where these qualities are easily revealed. There were several different types of cases which tested his judicial virtues in various ways. The first one was that of Claudius Ariston, the leading citizen of Ephesus, popular for his generosity and politically harmless; but he had roused the envy of people of a vastly different character who had suborned an informer against him. He was accordingly cleared of the charge and acquitted. Evocatus in consilium a Caesare nostro ad Centum Cellas (hoc loco nomen), magnam cepi voluptatem. Quid enim iucundius quam principis iustitiam gravitatem comitatem in secessu quoque ubi maxime recluduntur inspicere? Fuerunt variae cognitiones et quae virtutes iudicis per plures species experirentur. Dixit causam Claudius Ariston princeps Ephesiorum, homo munificus et innoxie popularis; inde invidia et a dissimillimis delator immissus, itaque absolutus vindicatusque est.226

It would appear that the course of adjudication was also an intellectual exercise in which the emperor and his counsellors were not pressed for time or other constraints. Instead, the image is one of a pleasant holiday pursuit.227 Pliny describes with some detail the three cases that were examined, which shed light on a number of interesting issues. While the first case was clearly one of political expediency and wisdom, the second and third cases were more traditional, a case of adultery and a case of a forged will. The second one concerned a charge of adultery against one Gallitta, the wife of a military tribune, who had had an affair with a centurion. The case had come to Trajan from a governor to whom the husband reported it, probably because the husband and wife were of senatorial rank. First, Trajan dismissed the centurion and relegated him, which left the punishment of the wife and possibly the husband. Despite the fact that the husband was unwilling to divorce his wife and to press charges, Trajan nonetheless convicted her according to the law. What is significant is that Trajan made a statement on military discipline because he did not want all cases of this kind to be referred to him.228 What the nature of the 226 Plin. Ep. 6.31. Tr. B. Radice, with slight modifications. Syme, ‘People in Pliny’ (1968), 139 recognizes Ariston as Ti. Claudius Aristion, known from epigraphic evidence. Saylor, ‘Emperor as Insula’ (1972), 47 sees the narrative as a series of progressive demonstrations of the emperor’s virtues. 227 Saylor, ‘Emperor as Insula’ (1972). 228 Plin. Ep. 6.31 commemorationem disciplinae militaris sententiae adiecit; SherwinWhite, Letters of Pliny (1966), 394.

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statement was is unclear, but it is clear is that the emperor did not want to deal with such issues. Despite this, he obviously thought it necessary to see the case through and not refer it forward to the Senate, as he could have done. The third case mentioned in the same letter was one of a forged will, which had caused a number of public rumours since it involved a Roman knight named Sempronius Senecio and an imperial freedman procurator called Eurythmus. While the case was interesting in and of itself, the situation surrounding the litigation was even more so: The heirs had written a letter together to the Emperor while he was in Dacia, begging him to conduct the inquiry. He had agreed to do so, and had fixed a date for the trial on his return. Then he found that some of the heirs were reluctant to appear against Eurythmus and intended to drop the case, but he had very properly declared that ‘He is not Polyclitus nor am I Nero.’ Heredes, cum Caesar esset in Dacia, communiter epistula scripta, petierant ut susciperet cognitionem. Susceperat; reversus diem dederat, et cum ex heredibus quidam quasi reverentia Eurythmi omitterent accusationem, pulcherrime dixerat: ‘Nec ille Polyclitus est nec ego Nero.’ 229

Only two of the heirs had appeared at the trial, and asked that either all of them should be forced to act as accusers or that they would be allowed to drop the case altogether. When the advocates of Senecio and Eurythmus complained that they should be given a hearing lest their reputation be tarnished by the accusations, Trajan noted that he is more worried about his own reputation, an apparent reference to the fact that influential imperial functionaries were involved in the case.230 There are two very remarkable things that should be noted. First of all is the very fact that one could write to the emperor while he is out on campaign or in the provinces, and that the emperor would actually answer and follow through with the promise he made. That would imply that there was an imperial legal structure that actually worked. The emperor answered the pleading of the heirs, and instead of simply referring the case to the courts, commits himself to resolving it at a later date. Second is that the emperor is acutely conscious of the power of appearances. A powerful imperial freedman is being accused, and the accusers are so afraid of him that, even in front 229

Plin. Ep. 6.31. Tr. Radice, altered slightly.

230

Plin. Ep. 6.31.

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the emperor, they would rather withdraw the charges than risk the consequences of revenge. A claim like this held a double conundrum, one which no doubt both the accusers and Trajan were aware of. The first is the historical memory of mighty imperial freedmen and their abuses, which Trajan himself refers to while mentioning Nero and his notorious freedman Polyclitus. The second is the challenge that the accusers present to Trajan’s power, implying that the all-powerful emperor would be unable or unwilling to protect them from his own freedman. This double conundrum may be the reason why he chose to take the case under his personal review. It is evident from Pliny’s published correspondence, even without taking into account Book 10 that contains his correspondence with Trajan, that Pliny was within the emperor’s inner circle. In another letter Pliny mentions how he sat in the emperor’s council when Trajan was adjudicating.231 Being a member of the imperial consilium was normally reserved for the most valued amici, a factor that Pliny does little to hide.232 The published letters are a unique source of information of the actual workings of the imperial legal and provincial administration, not least because they tell of real cases and how they were dealt with (with the obvious limitations posed by Pliny’s embellishments). At times, the allusion that the letters convey is one of unsettled forms of action and jurisdictional issues.233 For example, one of Pliny’s letters details the workings of the imperial legal procedure in a case of inheritance that was brought to Trajan by the deceased’s mother. Trajan appointed Julius Servianus to try the case, and Pliny was counsel for the defendants. After they had won the case, the mother appealed to Trajan again, claiming to have new evidence. Trajan appointed another man, Suburanus, to try the case.234 Another case mentioned in the same letter, in which Varenus was prosecuted by the Bithynians, was first brought to the consuls, who on the request of the provincials referred the case to the emperor.235 231 Plin. Ep. 4.22. Interfui principis optimi cognitioni in consilium adsumptus. Also Plin. Ep. 6.22. On the correspondence, see Stadter, ‘Pliny and the Ideology’ (2006). 232 Hammond, ‘Pliny on Government’ (1938), 118. On Pliny’s self-promotion, see Gibson, ‘Pliny and the Art of (In)offensive Self-praise’ (2003). 233 Sherwin-White, ‘Trajan’s Replies to Pliny’ (1962) discusses whether or not Trajan actually wrote the correspondence with Pliny. Henderson, ‘Portrait of the Artist’ (2003), 116–17. 234 235 Plin. Ep. 7.6. Plin. Ep. 7.6.

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Pliny’s image of Trajan corresponds with what Seneca describes as the qualities of a good emperor-judge. He is wise, demonstrates clementia, consults his advisers, and so on.236 The depiction of Trajan as the ideal emperor was, of course, the main point of the Panegyric, a speech Pliny delivered on 1 September of the year 100 on the occasion of his attainment of a consulship (consul suffectus). It is noteworthy that, although the literary genre of the panegyric was to become popular, Pliny’s gratiarum actio, a version of a laudatio, was the first speech by a consul or consul designate to be published. Pliny himself mentions that the aim of publication was to encourage Trajan to continue on what he considered to be the right path:237 I hoped in the first place to encourage our Emperor in his virtues by sincere tribute, and, secondly, to show his successors what path to follow to win the same renown, not by offering instruction but by setting his example before them. primum ut imperatori nostro virtutes suae veris laudibus commendarentur, deinde ut futuri principes non quasi a magistro sed tamen sub exemplo praemonerentur, qua potissimum via possent ad eandem gloriam niti.238

In the Panegyric, Pliny mentions how it is said that the emperor is above the laws, though it should be that the laws are above emperors: non est princeps supra leges, sed leges supra principem.239 According to one theory, Pliny here contrasts Trajan favourably with Domitian, who held himself to be above the laws.240 In a way, the praise showered on Trajan was a very senatorial portrait of what was hoped and expected of the emperor. The emperor had supreme, unrivalled power, but he should consider himself as equal to the 236 Saylor, ‘Emperor as Insula’ (1972), 47 on Trajan as the personification of iustitia and gravitas. 237 Plin. Ep. 3.18; Roche, ‘Pliny’s Thanksgiving’ (2011), 3–5; Radice, ‘Pliny and the “Panegyricus” ’ (1968); Bruère, ‘Tacitus and Pliny’s Panegyricus’ (1954). The views of the older generation of scholars on Pliny may be summarized by the opening sentence in Hammond, ‘Pliny on Government’ (1938): ‘Pliny the Younger was not a profound thinker.’ 238 239 Plin. Ep. 3.18.2. Plin. Pan. 65.1. 240 Brunt, ‘Lex de imperio Vespasiani’ (1977), 109; Hammond, ‘Pliny on Government’ (1938), 124 shows that Trajan is seen as both Stoic law animate, but also a consul who took the oath to obey the laws. On Stoicism and the virtues of the ruler, see Braund, ‘Praise and Protreptic’ (1998). Radice, ‘Pliny and the “Panegyricus” ’ (1968), 166 notes how Pliny elsewhere deplored the idle flattery of such speeches. For the use of negative examples, see Roche, ‘Pliny’s Thanksgiving’ (2011), 10–11.

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senators. Thus there should be no excessive honours bestowed on him, and he should avoid acting tyrannically, which most likely translates that he should respect the Senate. The emperor’s accessibility and his iustitia were directly important for the use of imperial jurisdiction.241 While the circumstances are different, the aim, style, and function of the speech is to a certain extent similar to Cicero’s Caesarian speeches and Seneca’s De clementia. All of them sought to utilize praise to guide the actions of the ruler by presenting to him images and allusions of virtues that they felt the ruler should aspire to and emulate. While part of the almost adulatory tone of both the Panegyric and Pliny’s correspondence with Trajan may be due to literary convention, Pliny was also part of the new aristocracy of the empire that were raised to prominence by their connection with the emperor.242 It is no surprise that the correspondence of Pliny with Trajan strengthens the image of the emperor as a legal multi-functional tool, who legislates, administrates, and adjudicates, but also acts as a handy legal reference guide to whichever rules should be applied. The role of the emperor is thus so central that for him to embellish it further would be bad form. The ruler should strive for the public good, and not consider his own status but rather seek to limit it. As an example, Pliny mentions how Trajan restricted by law the infamous bribery by unsavoury candidates, but had been acting at the request of the Senate and the consuls.243 The final issue, that of the emperor acting as a kind of legal librarian, is quite astonishing. For example, Pliny writes to Trajan that several edicts and letters ranging from Augustus to Domitian were read to him, but that he shall not repeat them since they were bad copies and the originals are at the imperial scrinia. Trajan, in his response, states that he did not find any general rules laid down by his predecessors in the archives.244 Yet on another occasion Pliny adds a law by Pompey and an edict of Augustus to his letter. Trajan notes that the latter has repealed the former.245 Most of the legal issues dealt with in the letters to Trajan were cases of political significance or involving the imperial treasury. Pliny wrote 241 242 243

Roche, ‘Pliny’s Thanksgiving’ (2011), 6–7. Hammond, ‘Pliny on Government’ (1938), 116. 244 Plin. Ep. 6.19. Plin. Ep. 10.65–6.

245

Plin. Ep. 10.79–80.

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to Trajan asking for direction in a case involving the return of a donation by a community to an individual. Trajan writes to Pliny that though he had mandated (in an edict) that largesse should not be given out of public money, donations given long ago should not be revoked because it would be unreasonable to individuals.246 In some cases, cities would petition the governor to present their case to the emperor. For example, Pliny sent a petition by the Nicaeans regarding intestacy for Trajan to resolve. Trajan responded that while the Nicaeans claim that an edict of Augustus entitles them to the estate of intestate citizens, Pliny should resolve the issue by summoning the interested parties and, with the assistance of imperial procurators, go through the arguments in a formal inquiry.247 While it is clear from Pliny’s rather apologetic cover letter to the petition that forwarding such petitions was neither regular nor recommended, Trajan’s reply underlines the point further.248 Trajan also refused to intervene in some cases. Pliny asked him to settle a dispute over the applicable law on the recovery of debts in Pontus and Bithynia, because the local ordinances did not have sufficient weight and imperial authority would be needed to settle the matter. Trajan referred to their respective laws and informed Pliny that he did not think it would be proper to interfere in private matters (in iniuriam privatorum).249 Several of Pliny’s letters to Trajan relate to disputes surrounding the philosopher Flavius Archippus. In the first case, Archippus asked to be let out of jury duty because he is a philosopher, teachers being relieved of this obligation. This petition was not supported by his townsmen, who maintained that he was actually an escaped fugitive and should be thrown back in prison. Archippus then produced a number of responses to petitions by Domitian, who called him a good man and requested that he should be treated well. Archippus also presented an edict of Nerva on the renewal of edicts and beneficia, which Pliny repeats in addition to Domitian’s letters. Furthermore, in a separate letter to Tullius Justus, he states that in all affairs, begun or accomplished, the rules of the previous reign will be observed. Therefore, even the letters of Domitian will be binding over him. Archippus’ argument is that he should be restored to good standing, and he begs Pliny to present the case to Trajan. In his response, 246 248

247 Plin. Ep. 10.110–11. Plin. Ep. 10.83–4. 249 Williams, Pliny: Epistles X (1990), 113. Plin. Ep. 10.108–9.

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Trajan notes that it is possible that Domitian was wholly unaware that Archippus was an escaped fugitive, but he is willing to give the man the benefit of the doubt. However, the previous letters and benefits were not in any way to interfere with the proper treatment of the more recent accusations.250 It is thus possible that the provinces were full of eloquent scoundrels who had managed to get letters in response to petitions to emperors and could use them to get out of trouble. Interestingly enough, when Pliny was about to leave Prusa, the advocate of the same Archippus made another appeal to Pliny regarding another quarrel, an appeal that amounted to an accusation of maiestas. The noted rhetorician Dio Cocceianus or Chrysostom had hoped to transfer a library he had built in Prusa to be maintained by the city. Through his attorney, Archippus announced that Dio kept Trajan’s statue in the same building where his wife and son were buried. When Pliny said he would hear the case at once, the accusers began stalling and asking for adjournments and more time to present memorandums on the matter. Dio, on the other hand, had promptly produced the documents. Trajan did not wish to become involved in a local quarrel, but wrote to Pliny that the aim of his government is not to create reverence of his person by severe measures and making every offence treasonous (an obvious reference to his predecessors). Instead, he instructs Pliny to set the matter aside and resolve only the monetary issue.251 It is unclear whether or not the two things are related, but Dio Chrysostom praises Trajan’s clemency and his abilities as judge, calling him a judge more observant of the law than a panel of jurors, more equitable than the magistrates.252 What the case once again illustrates is how difficult it was to administer a situation where unscrupulous individuals exercised their rhetorical skills to gain letters, any letters, from the emperor and used them to their advantage. The importance of this skill was not limited to petitioners from the provinces; even members of the elite, like Pliny, adopted the rhetorical posture of a humble petitioner when writing to the emperor.253 Due to their contemporary importance, much attention has been given to the seemingly benevolent letters in which Trajan advises Pliny on the handling of Christians. Trajan stresses that repentance 250 251 253

Plin. Ep. 10.58–60. See also Kokkinia, ‘Philosopher and Emperor’ (2004). 252 Plin. Ep. 10.81–2. Dio Chrys. Or. 3.5. As noted by Millar, ‘Trajan’ (2004), 32.

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should be allowed and anonymous accusations are not to be accepted.254 While Trajan’s correspondence with Pliny reveals an almost angelic patience in answering queries of sometimes mundane proportions, the same kind of attitude is evident even in the rescripts of Trajan preserved in the Digest of Justinian.255

CONCLUSIONS When one is confronted with the baffling mix of images that one gets from the Roman sources of the Principate regarding imperial jurisdiction, perhaps the only way to approach the issue analytically is to disentangle the various narrative traditions from each other. On one hand, there is a prominent tradition which describes and evaluates the emperors and their actions (including, and very prominently, adjudication) among the senatorial elite. This tradition may be seen as a formulation of the historical reputation of the emperor, and equally as a way of controlling the sovereign ruler by emphasizing ill-advised and unacceptable courses of actions. The ideal that this tradition reflects is that the civilis princeps, the emperor as a leading citizen and the princeps senatus. On the other hand, one has the tradition of the emperor adjudicating as the centre of a huge empire, resolving issues far away and, at the same time, attempting to discern between liars and cheats and honest applicants. In this period the dangers of remote control are already apparent, and obtaining reasonably accurate information concerning the actual situation was a perennial problem. As a side-effect, individuals and communities embarked on campaigns of praise and adulation of emperors, no doubt wishing to imprint upon the emperors the impression that they were expected to be all that they were praised as being: kind, just, wise, and favourable to the requests of petitioners. The language of petitioning is being formed with equal aims, to produce the dramatic effect of humble petitioners approaching the wise and all-powerful king. What is surprising is that this language is evident even between supposed (almost-) equals such as Pliny and Trajan.

254

Plin. Ep. 10.97.

255

Dig. 48.19.5, 48.22.1.

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What the narrative tradition further produces is the idea of exemplarity, which comes out from the writings of Seneca, Tacitus, and Pliny. In Seneca, the aim of De clementia was to suggest a kind of rehabilitation of Nero in the eyes of the Senate after the internecine violence among the imperial family. What the text does not hide is the absolute nature of imperial power and, for the first time, the sovereign power of imperial adjudication. Reflecting a Stoic idea of virtue, it shows an enlightened sovereign who is bound to his moral and ethical virtues for the greater good of humanity. The two central tenets of the text are clementia and its implications in imperial jurisdiction, a kind of strange pairing of the Hellenistic ideal monarch and the Roman context. The praise that is showered upon Nero and the criticism of Claudius in the Apocolocyntosis are to be seen as pairs, like the pairing of the divinity and the insanity of the emperor in the narratives of imperial adjudication. What they both produce is a relentless focus on the emperor and his power to adjudicate. Concerning the cases, what the sources are filled with are strange and curious instances involving the elite. Cases of maiestas, misuse of power and inheritance, mixed up with the involvement of imperial freedmen and women fill the annals of the era. They often seek to present the image of a reign of terror, of an insane emperor persecuting the elite. For the use of imperial jurisdiction in weeding out the unfortunate who were thought to represent a threat to the emperor, or simply to humiliate them, there have been numerous theories to explain what contemporary observers deemed as imperial insanity. The humiliation of the senatorial class, or members of it, has been variously seen as the emperor seeking to curry favour with the general populace, or to demonstrate his unlimited power to the elite or something similar. In short, instead of insanity, it has been seen as a strategy. What are evidently missing are the routine cases, the legally significant issues or even the ordinary issues that cannot be reduced to the power-struggles of the elite. In this respect, many of the ‘mad’ emperors, such as Caligula, Claudius, Nero, or Domitian, were reported as having spent whole days diligently adjudicating in a public place. At least in the cases relating to the elite, it would appear from the evidence that the Senate played a key role, either as a court of law or as a consilium of the emperor. From Claudius onwards, mentions of cases in the Senate decrease. For imperial jurisdiction in general, the old virtues of the Republican elite, such as approachability, continue to be significant for the way in which an

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emperor is expected to act. For provincials, the emperor continued to represent a target for petitions, who would adjudicate cases like boundary disputes or unjust requisitioning by corrupt officials. Whether imperial jurisdiction may at this stage be considered a regular court of appeal or a court of first instance is debatable, as there is evidence for both and no known rules of how a case would end up with the emperor. A similar irregularity is also notable in the places where the emperor sat in judgment. There are mentions of sessions taking place in the fora, in temples, and in other public places. While the imperial sovereignty and close-to-universal jurisdiction was becoming rooted, what was still missing was a formal justification for it in law or recognized constitutional discourse. The first official statement to recognize the emperor’s powers was the lex de imperio Vespasiani, which stated how the emperor’s legal scope was based on precedent and discretionary powers. Large parts of the text are missing, and unfortunately for the purposes of this investigation there are no references to jurisdiction. As there was also no mention of other central features like the proconsular imperium or tribunician power, this cannot be seen as evidence of absence. The most central feature is the role that the law gave to precedent and historical reputation. Predecessors not worth mentioning as precedents are simply not mentioned. What the law equally demonstrates is the power of the Senate in establishing boundaries and defining the limits of acceptable. A similar role of defining the acceptable and what is expected from emperors in the exercise of their jurisdiction may be seen in the writings of historians like Tacitus or authors like Pliny. What Tacitus manages to demonstrate in his dramatic history of the empire is not just a view of the ruination of the Republic, by a disgruntled senator, but an exposé of unacceptable behaviour for an emperor (trumpedup charges of maiestas, killing of senators, giving too much influence to women and freemen). The work of Tacitus has been described as an exercise in inverted flattery, a way of showing better emperors the way not to do things. What Tacitus shows, perhaps inadvertently, is the centrality of imperial jurisdiction in the interactions between the emperor and the elite, how much the control over the elite was managed through the law. Equally, he shows how much perceptions mattered, how the image of imperial disfavour could have the same effect as an official punishment by the emperor. The emperors operated in an echo chamber that reinforced and distorted whatever they

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did, said, or did not do or say. While Tacitus seeks to show the principle of security at work in imperial administration and adjudication, in trials intra cubiculum or otherwise, what he perhaps inadvertently shows is how much such secrecy worked to announce and advertise the actions that were attempted to be concealed. In comparison to Tacitus, the idealizing of Trajan by Pliny reveals another side of imperial adjudication, how the diligent and wise emperor appeared to provincial petitioners. The same powerful imperial freedmen would still appear, but more as negative examples of practices that the wise emperor would get rid of. Thus the judge-emperor in Pliny is like Seneca’s personification of the idealized emperor, an enlightened judge guided by his virtues and justice.

4 Hadrian as the Ideal Judge INTRODUCTION The dilemma of autocracy during the reign of Hadrian may be illustrated with two conflicting depictions of the role of the ruler by contemporary authors, one by Plutarch and the other by Aelius Aristides. Plutarch’s essay To an Uneducated Ruler presents the principle that kings fear for their subjects, but tyrants fear their subjects. Good kings rule with reverence and self-restraint, observing the commands of justice and right. Their main anxiety is in case they should do evil, not that they should suffer evil. The evil tyrant will forever fear his subjects and find no peace, like Clearchus, the tyrant of Pontus, who crawled into a chest to sleep there.1 In contrast, in a speech probably delivered in the 140s, Regarding Rome, Aelius Aristides presents the Roman emperor as an ideal judge who, guided by justice and equality, rights wrongs. A subject, if he has even the smallest doubt over a lawsuit or legal privilege, needs only to write to the emperor and wait for his message. There is no need to travel to petition the emperor personally, the message will come swiftly and regardless of rank, assisting everyone equally.2 The contrast between Plutarch’s tyrant and Aristides’ emperor is that the tyrant retreats into himself, whereas the ideal emperor is an ever-present judge that brings justice to his people. This fourth chapter discusses Hadrian3 and his successors, the Antonines: Antoninus Pius, Marcus Aurelius and Lucius Verus, and finally, Commodus. In earlier literature Hadrian was idealized as the 1

2 Plut. Mor. 781.4. Aristid. Or. 26.33, 26.39. Gregorovius, Hadrian (1851); Henderson, Hadrian (1923); Birley, Hadrian (1997). 3

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stereotypical legal emperor because of his enlightened adjudication and his legal reforms, such as the appointment of new imperial judges and giving jurisdiction to select imperial magistrates, the stabilization of the praetor’s and provincial governors’ edicts. These reforms brought imperial power to previously unaffected areas of law.4 For the narratives of imperial adjudication, it would almost appear that the emperors felt the need to respond to the expectations placed on them and to act as enlightened and conscientious sovereigns looking after the well-being of their subjects and bringing them justice. It is equally possible that while the imperial narratives of adjudication emphasized the sovereign power of the emperor and the dichotomy between a good king and a tyrant, modern observers were prone to project their ideals on emperors they thought reflected their own views. The purpose of this chapter is to explore how petitioning and the seeking of imperial rescripts becomes a central cultural and legal phenomenon in the narratives of the reigns of Hadrian and his successors. This phenomenon entails two interlinked features: first, the way in which cultural practices and historical understanding began to reflect the centrality of imperial adjudication, especially in the Greek East; and second, how imperial adjudication grows to become the defining feature of the Roman legal system and its development. The question is thus how both of these developments reinforced the narrative of the emperor as judge and affected private persons seeking imperial aid and favour, how the narratives created a normative understanding of imperial jurisdiction. I shall explore the spread of this narrative, extending even to the visions of the past by Roman historical writers such as Suetonius and Pomponius. I shall begin with the first feature through a reading of the aforementioned speech to Rome by Aristides. Aristides illustrates how, for the Greek elite, the Roman Empire appeared as something unprecedented, a functional global administration that serves its subjects. What Aristides equally illustrates is how this admiration for the emperor and the seeking of imperial favour was mixed with complicated sentiments regarding Roman superiority. From the narrative of Aristides, it is evident how novel and unprecedented the idea of the emperor’s jurisdiction executed from afar and available for his 4 Pringsheim, ‘Reforms of Hadrian’ (1934), 148; Wieacker, ‘Hadrianischen Justizpolitik’ (1935); d’Orgeval, L’Empereur Hadrien (1950); d’Ors, ‘L’Oeuvre d’Hadrien’ (1965).

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subjects actually seemed to him. It was as if the emperor had begun to execute the ideal of the good king in practice. In the second section, we will see how the practice of imperial adjudication reflects the growth of the giving of rescripts and the seeking of imperial justice, as well as the way emperors sought to demonstrate their virtues and to reform law through their rulings. From the reign of Hadrian onwards, there appears a vast number of imperial rescripts. In reading these texts, it becomes clear that the emperors understood their task as that of bringing justice and they sought to act as legal advisers to fulfil that role. From these responses, the figure of the emperor judge appears as an omnipresent adjudicator. I will discuss how the historical writers of the era, foremost among them Suetonius, a high imperial functionary under Hadrian, reflect the increasing imperial jurisdiction in their depiction of the past. After Suetonius, being a judge became an integral part of the depiction of the role of the emperor, and his work created a historical foundation for the practice. I will thus approach the way Suetonius works as both a description of the past, but equally as a normative text that builds through examples an understanding of what should be, not just what was. Imperial jurisdiction was a central theme in Suetonius’ Lives of the Caesars, which testifies to how important the administration of law had become in the understanding of imperial activities. Through the examples of stereotypically good and bad emperors, Suetonius builds a model of the ideal or exemplary emperor that he then projects onto the past. Finally, I shall examine the way Hadrian was portrayed as the legal emperor, a reformer who brought imperial administration in line with the demands of the era. Despite the idealization of the Antonine era, our knowledge of the period rests on a relatively shaky foundation. The historical sources for the age of Hadrian and the Antonines are less than ideal, since the only historians to cover the era are Dio and the author of the Historia Augusta. Of these, especially the latter is considered to be of dubious value, though the biography of Hadrian may be considered to be more reliable than the rest. However, there are a good number of legal decisions and rescripts from Hadrian and the Antonines cited by jurists (both in the Digest and the Codex), allowing for the evaluation of the content of imperial adjudication. An equally important source for the era are epistolary inscriptions that contain imperial rescripts and rulings on individual legal issues. These have been found in large quantities from the reign of Hadrian and his successors. While many

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of them were seemingly minor matters, where individuals and communities petitioned the emperor or voiced their grievances, they are indicative of the general trend where the emperor becomes an arbiter and a final authority to whom everyone would turn, from a city angered by the fact that a rival city does not use their correct honorary titulature, to rural villagers complaining about soldiers’ unlawful requisitioning. The emperor is seen not only as a source of law, but also of wealth and honour.5 How this micromanagement burdened the emperors is clearly seen in the way the individuals and communities of the empire vie for imperial attention and favour. Dignity and honour, much like justice which was bound to them, were commodities that the emperor could and did provide.

AELIUS ARISTIDES AND THE LETTERS OF THE EMPEROR From the historical treatises describing the era, it is evident that the emperor was considered to be the highest judge and that one could, in theory at least, appeal to the emperor. How did that work in practice: how could individuals gain access to the emperor to present their issues? The main theory today is that presenting one’s case to the emperor personally was probably much more efficient than doing so in writing. Thus, the friends of the emperor and the members of the elite, such as imperial officials, senators, and people who went to the emperor’s morning salutation, were in a privileged position as far as gaining access to the emperor. Access could, of course, be gained by petitioning others and getting their help in approaching the emperor.6 This theory is corroborated by the instances where people went to extraordinary lengths actually to meet the emperor and to present their case to him. While some of them are clearly apocryphal, such as the old lady approaching Hadrian on the street with a witty retort, or the story of the judicial ambush of Vespasian by petitioners, others, like the Goharian embassy discussed in the next chapter, are 5

Of the petty disputes that the emperors were drawn into, see e.g. the sarcastic response of Antoninus Pius to Ephesus in Oliver, Greek Constitutions (1989), 135 A–B, 293–4; Lendon, Empire of Honour (1997), 77. 6 Eck, ‘Government and Civil Administration’ (2000), 212–13.

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clearly historical.7 The libellus process, unique to Roman imperial adjudication, presented a solution to this problem of access by granting, in theory, everyone access through letters. The aim of this section is to illustrate how the process of writing to a ruler and actually getting a response would have appeared in the eyes of a provincial. Through the account of Aelius Aristides, we shall see how the system of rescripts was seen as one of the most praiseworthy elements of the empire. Aelius Aristides, the Greek rhetorician from Mysia who drafted the laudatory speech to Rome, considered the system of rescripts and letters the most astonishing part of the Roman system of government.8 Aristides describes the procedure as functioning almost instantly: If they should have even some small doubt over suits and the legal privileges of their subjects, they immediately send to him, asking what should be done, and they wait for his signal, no less than a chorus waits upon its teacher. Therefore there is no need for him to wear himself out by journeying over the whole empire, nor by visiting different people at different times to confirm individual matters, whenever he enters their lands. But it is very easy for him to govern the whole inhabited world by dispatching letters without moving from the spot. And the letters are almost no sooner written than they arrive, as if borne by winged messengers. (32) ὥστε μᾶλλον μὲν ἐκεῖνον εἰδέναι νομίζουσιν ἃ πράττουσιν ἢ σφᾶς αὐτοὺς, μᾶλλον δὲ δεδίασι καὶ αἰδοῦνται ἢ τὸν δεσπότην ἄν τις τὸν αὑτοῦ παρόντα καὶ ἐφεστηκότα καὶ κελεύοντα. οὐδεὶς δὲ ἐφ᾽ ἑαυτῷ τηλικοῦτον φρονεῖ, ὅστις τοὔνομα ἀκούσας μόνον οἷός τ᾽ ἐστὶν ἀτρεμεῖν, ἀλλ᾽ ἀναστὰς ὑμνεῖ καὶ σέβει καὶ συνεύχεται διπλῆν εὐχὴν, τὴν μὲν ὑπὲρ αὑτοῦ τοῖς θεοῖς, τὴν δὲ αὐτῷ ἐκείνῳ περὶ τῶν ἑαυτοῦ. εἰ δέ τι καὶ μικρὸν ἐνδοῖεν περὶ δίκας τε καὶ ἀξιώσεις, ἢ κοινὰς ἢ ἰδίας τῶν ἀρχομένων, εἴ τινες ἄρα ἄξιοι

7

Suet. Vesp. 23; SEG XVII 759. Schiavone, End of the Past (2000), 3–6. On Aristides and the speech: von Wilamowitz-Möllendorf, ‘Rhetor Aristeides’ (1925); Oliver, ‘The Ruling Power’ (1953); Bowersock, Greek Sophists (1969); Brunt, ‘Laus imperii’ (1978); Nutton, ‘Beneficial Ideology’ (1978); Klein, ‘Zur Datierung der Romrede’ (1981); Klein, Die Romrede des Aelius Aristides (1981); André, ‘La Conception de l’État et de l’Empire’ (1982); Stertz, ‘Aristides’ Political Ideas’ (1994); Carsana, Teoria della costituzione (1990); Behr, ‘Biography of Aelius Aristides’ (1994); Klein, ‘Zum Kultur- und Geschichtsverständnis in der Romrede’ (1995); Volpe, ‘Armonia e taxis’ (2001); Whitmarsh, Greek Literature (2001); Flinterman, ‘Sophists and Emperors’ (2004); Whitmarsh, Second Sophistic (2005); Harris and Holmes, Aelius Aristides (2008). 8

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εἶεν, ὡς ἐκεῖνον ἐκπέμπουσιν εὐθὺς ἐρωτῶντες τί δεῖ ποιεῖν, καὶ μένουσιν ἔς τ᾽ ἂν ἀποσημήνῃ, οὐχ ἧττον ἢ διδάσκαλον χορός. (33) ὥστε οὐδὲν δεῖ φθείρεσθαι περιιόντα τὴν ἀρχὴν ἅπασαν, οὐδ᾽ ἄλλοτε ἐν ἄλλοις γιγνόμενον τὸ καθ᾽ ἕκαστον βεβαιοῦσθαι, ὁπότε σφίσι τὴν γῆν πατοίη: ἀλλ᾽ εὐμάρεια πολλὴ καθημένῳ πᾶσαν ἄγειν τὴν οἰκουμένην δι᾽ ἐπιστολῆς.9

Another possibility, which Aristides found to be far beyond anything the world had ever seen (of course, this assessment should be taken with a grain of salt), was that of appealing to the emperor: Cases under judicial review, like an appeal from one’s demesmen to the courts, take place with no less fear in regard to the verdict on the part of those who institute the appeals, so that one would say that people are now governed by those sent out to them in so far as it pleases them. How is this form of government not beyond every democracy? There it is not possible after the verdict is given in the city to go elsewhere or to other judges, but one must be satisfied with the decision, unless it is some small city which needs outside judges. But among you, now a convicted defendant or even a prosecutor, who has not won his case, can take exception to the verdict and the undeserved loss. Another great judge remains, who no aspect of justice ever escapes. And here there is a great and fair equality between weak and powerful, obscure and famous, poor and rich and noble. And Hesiod’s words come to pass: ‘For easily he makes one strong and easily he crushes the strong’, this great judge and governor, however justice guides him, like a breeze blowing on a ship, which does not, indeed, favour and escort the rich man more and the poor man less, but equally assists him to whomever it may come. (37) ὥστε ὑποχωρεῖ μὲν ἄρχων ἄρχοντι, ὅταν αὐτοῦ ὁ χρόνος ἐξήκῃ, καὶ οὐδ᾽ ἂν ἀπαντήσειε ῥᾳδίως: τοσοῦτον ἀπέχει τοῦ διενεχθῆναι ἄγαν, ὡς αὐτοῦ τῆς χώρας οὔσης. ἔκκλητοι δὲ ὥσπερ ἔφεσις ἐκ δημοτῶν εἰς δικαστήριον σὺν οὐκ ἐλάττονι τῶν δεξαμένων φόβῳ περὶ τῆς κρίσεως ἢ τῶν ποιουμένων γίγνονται. ὥστε φαίη τις ἂν τοσαῦτα ἄρχεσθαι τοὺς νῦν ὑπὸ τῶν πεμπομένων, ὁπόσα ἂν αὐτοῖς ἀρέσκῃ. (38) πῶς οὖν ταῦτα οὐκ ἐν τοῖς ἐπέκεινα πάσης δημοκρατίας; οὔκουν ἐκεῖ ἔξεστι μετὰ τὴν ἐν τῇ πόλει ψῆφον ἐνεχθεῖσαν ἐλθεῖν ἄλλοσε οὐδ᾽ ἐπ᾽ ἄλλους δικαστὰς, ἀλλὰ στέργειν ἀνάγκη τοῖς ἐγνωσμένοις, εἰ μή τις ἐστὶ μικρὰ πόλις, ὥστε προσδεῖσθαι δικαστῶν ὑπερορίων παρὰ τὴν ἀξίαν, ἢ καὶ διώκοντα μὴ κρατήσαντα, μηδὲ τῷ νενικῆσθαι: ἀλλὰ μένει δικαστὴς ἕτερος μέγας, ὃν οὔποτε οὐδὲν ἐκφεύγει τῶν δικαίων: (39) κἀνταῦθα δὴ πολλὴ καὶ εὐσχήμων ἰσότης μικροῦ πρὸς μέγαν καὶ ἀδόξου πρὸς ἔνδοξον καὶ πένητος δὴ πρὸς πλούσιον καὶ γενναῖον ἀγεννοῦς, καὶ τὸ τοῦ Ἡσιόδου συμβαίνει, “ῥεῖα μὲν γὰρ 9

Aristid. Or. 26.32–3, tr. Behr, Aelius Aristides (1981–6).

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βριάει, ῥέα δὲ βριάοντα χαλέπτει” οὗτος ὁ δικαστής τε καὶ ἡγεμὼν, ὅπως ἂν τὸ δίκαιον ἄγῃ, ὥσπερ πνεῦμα ἐν νηὶ, οὐ δή που πλουσίῳ μὲν μᾶλλον, πένητι δὲ ἧττον χαριζόμενόν τε καὶ παραπέμπον, ἀλλ᾽ ὅτῳ γένοιτο ἀεὶ, τοῦτον ὁμοίως ὠφελοῦν.10

In this system the emperor is the final arbiter of law and justice, an almost divine judge. In contrast to the praise heaped by Seneca on Nero, what is striking in this account is its mundane nature. Aristides does not present an abstract image of an idealized emperor; what he is describing is the functioning of a legal system through letters and appeals. The two main features that he is so proud to elucidate are first, the way that letters to and from the emperor were an effective means of administering justice and government, and second, the possibility that every free inhabitant of the empire could appeal to the emperor and trust that whomever the opponent was, the emperor would be just. It is easy to see why this caused such a stir. On the first issue, beyond a few exceptions, almost universally the effective power of the ruler in pre-modern societies did not extend very far from where the ruler was at the time. That is why rulers needed to be constantly on the move, and while they were, they were constantly barraged by petitioners of various kinds. What Aristides maintains is that the administrative apparatus of the empire had attained such perfection that, via a simple letter, an emperor could exert his will and bring justice to a faraway location. The second issue is all the more impressive: the emperor was a universal source for appeal for all who claimed they had been wronged in the courts of law. What Aristides implies is that the Roman emperor was not only all-powerful, but also that he acted as a universal court of appeal for the empire, listening to cases without regard for the status of the applicants. Aelius Aristides presented this speech in Rome, most likely in the spring of AD 143 or 144, at the Athenaeum of Hadrian. This building, now lost, probably stood near the Forum of Trajan, the newest and grandest part of the monumental centre of Rome. Not only were the surroundings a triumph of Roman prosperity and success, but also the audience was composed of the elite of Rome, perhaps even including the emperor, Antoninus Pius. Aristides was invited to speak most likely due to the connections of his teacher Alexander, who had been one of the tutors of Marcus Aurelius. Hadrian had died 10

Aristid. Or. 26.37–9.

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a few years earlier, and the organization for his succession to the throne was meticulous. He had adopted Antoninus Pius, who had in turn adopted Marcus Aurelius and Lucius Verus. The result was a remarkably peaceful transition of power.11 What his speech sought to outline, among other things, was the character of Roman government, set out in the terms of Greek philosophy and the theory of kingship. Like the later works of Dio, Aristides provides an important example of cultural translation, an attempt to define something that might have been self-evident to Romans.12 Aristides is a controversial character. Principally a rhetorician, he has been associated with the Second Sophistic. Much of his literary production is devoted to either his various illnesses or his dreams. For all the praise that he heaps on Rome,13 his stay there was a failure, mostly due to sickness. Aristides represents a very peculiar kind of author, one of the learned rhetoricians who sought to gain access to and favour with the Roman emperors, but at the same time was conflicted about the sycophantic behaviour that this entailed.14 However, they were men whose wealth and friends in high places gave them access, while their literary talents made them valuable guests. No wonder that their view of the Roman Empire is favourable: they were, by and large, its major beneficiaries.15 For Aristides, preparing a speech to the glory of Rome was, of course, not a task without self-interest. He was 26 years old at the time, and had thus far enjoyed only modest success as a rhetorician. A provincial, but one with good connections, he had a chance to make it, to gain fame and wealth. As the world appeared to Aristides and his like, performing at Rome included the chance of gaining imperial patronage and a place as a favourite of the emperor, and, with it, both direct material gain and, even more importantly, 11

Schiavone, End of the Past (2000), 3. The date of the speech is contested, with some arguing for a later timing than his 143–4 visit to Rome. The details of the visit, such as the role of Alexander and the meeting with Antoninus Pius, originate mostly from his later writings. Pernot, ‘Aelius Aristides’ (2008), 178. 12 Whitmarsh, Greek Literature (2001), 212. See Klein, ‘Zum Kultur- und Geschichtsverständnis in der Romrede’ (1995) on whether the speech should be seen as philosophical or historical (or panegyric) in nature. 13 Praise of Rome and its emperors was a staple in Aristides, repeated in numerous other speeches. Pernot, ‘Aelius Aristides’ (2008), 175. 14 Pernot, ‘Aelius Aristides’ (2008), 176; Flinterman, ‘Sophists and Emperors’ (2004), 376; Garnsey, Social Status and Legal Privilege (1970), 67–85. 15 Nutton, ‘Beneficial Ideology’ (1978), 210.

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influence.16 Such ambition was criticized by the philosophers themselves, but it also elicited sarcastic remarks from contemporaries.17 Aristides’ speech to Rome is praise to the Roman Empire as a place of peace, tranquillity, order, and organization. That is one of the things that truly sets it apart from the typical laudationes of the rhetoricians trying to get rich by seeking imperial favour through praise. In this era one could speak of a golden age without the typical allusions to a past long gone. What the empire of the Antonines had achieved was order, a system where everything and everyone had their place in the social hierarchy and trade flourished among different parts of the empire, bringing prosperity to all.18 What is remarkable is how much Aristides approaches Rome as an empire, with nary a word about the history of Rome or its culture. For him, as it doubtless was for many inhabitants of the empire, Rome was shorthand for the vast multicultural empire, a political, legal, and economic area that had brought prosperity and peace. The Roman Republic and the traditions and institutions that had shaped it meant very little to them. Roman citizens would increasingly be living in the provinces, but the improvements in communications meant that they were able and willing to reach out to the emperor. In the voluminous discussion around Aristides, interest in the speech to Rome has been at a low level in recent years.19 Its description of the system of letters, rescripts, and appeals in the Roman Empire has been to a large degree overlooked. For any attempt at understanding how the system of rescripts appeared to the subjects of the empire, however, it is of vital importance. Despite the fact that it was written as a panegyric of Rome, as an idealized vision, it shows how extraordinary the Roman Empire appeared to those accustomed to the Greek experience, how the system of rescripts appears to be without comparison.

Flinterman, ‘Sophists and Emperors’ (2004), 362–5. Cass. Dio 71(72).35.2 noted how philosophy attracted people hoping to get rich through imperial patronage. On the peculiar social role of the philosopher in provincial high society, see Dillon, ‘Social Role’ (2002). 18 Schiavone, End of the Past (2000), 6–7, 14; Volpe, ‘Armonia e taxis’ (2001). On the Antonine empire, see Garzetti, L’impero (1960) and Hammond, Antonine Monarchy (1959). 19 There have been editions like Fontanella and Desideri, A Roma (2007), but even in Harris and Holmes, Aelius Aristides (2008) the speech to Rome was hardly referred to. 16 17

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For a highly educated Greek rhetorician like Aristides, seeking to become part of Roman imperial circles was by no means without anxieties. Like many of his peers, the innumerable scholars, rhetoricians, and philosophers who sought imperial favour, the relationship with Roman emperors and what they stood for was not without its issues. As cultured Greeks, they were prone to consider themselves superior to the emperors that they sought to counsel. There are numerous examples of their arrogant behaviour towards emperors: even Aristides himself later let the emperor Marcus Aurelius wait for three days before granting him an audience (Philostr. V S 2.582). As Philostratus maintained, arrogance was a hallmark of the sophist. Of course, some of the feeling of superiority came from a background of the general Greek sense of cultural dominance over Romans, coupled with a sense of awe for the wealth and power that Rome represented. However, it was customary that speakers like Aristides would refrain from giving unsolicited advice to emperors. The position of a speaker like Aristides was thus ambivalent: on the one hand he was a panegyrist of Rome, on the other, his feelings were quite complicated, due to a shared sense of superiority among his peers.20 The anxieties of someone like Aristides are relevant for the issue of imperial jurisdiction and the power of the emperor because they reveal the unique pull that the emperor had for the elite. In fact, we know quite a lot about Aristides’s anxieties, as he wrote extensively about his multifarious illnesses and recorded his dreams with an obsessive exhaustiveness. These dreams, or at least the way that he described them, contained numerous encounters with the Roman emperors. It is safe to say that Aristides was obsessed with emperors. In his dreams, he is admired by the emperor for his wisdom and eloquence, he is invited to stay at the palace, and is showered with unimaginable imperial honours and attention. At the same time, he refuses to toady to the emperor, even to give him the customary respectful kiss.21 Giving praise to an emperor or a regime was not in and of itself dishonourable for a rhetorician or philosopher. The role of the learned adviser to a great king was a time-honoured one,

20 As Whitmarsh, Greek Literature (2001), 5, maintains, elite Greeks of the Roman period defined their superiority mainly through their education and culture. Pernot, ‘Aelius Aristides’ (2008), 176–7, 182; Flinterman, ‘Sophists and Emperors’ (2004), 359, 364–5, 376. 21 Aristid. Or. 47.23; Flinterman, ‘Sophists and Emperors’ (2004), 368–73.

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with great precedents like Aristotle. Would the wisdom of an adviser be enough to turn an emperor into a student and raise the adviser to the status of a philosopher king guiding the emperor? There were, sure enough, many of them, and it appears that it was customary for a Roman or Greek ruler to support such advisers.22 Access to the emperor, being able to influence the Great King, of course brought immense power if used properly. Aristides himself settled in Smyrna, where he was visited by Marcus Aurelius. When the city was destroyed in an earthquake, he was able to use his connections and skills in oratory to persuade the emperor to support its rebuilding. In return, he was named one of the city’s founders.23 What the real-life Aristides demonstrates is the limits of the vision that Aristides laid out. Even with the most conscientious of emperors, patronage and the access and influence that it could provide were of paramount importance. Like Pliny’s Panegyric and the much more subtle praise that was contained in his published correspondence with Trajan, the praise in Aristides’s speech to Rome should be seen in its literary context, as part of a genre. Equally, the text is a valuable source on attitudes towards the function of the emperor as judge and how it appeared to provincial observers. The fact that Aristides completely omits the history of Rome in the oration is an important indication of how little the historical development of Roman institutions mattered to Greek provincial observers. For them, the wondrous fact was that the emperor was willing and able to influence legal matters from a great distance through his functionaries and instructions sent via mail. Equally, it appeared to them that the emperors were driven by a sense of great care and concern for their subjects, to accept and respond to appeals from all around the empire. While the context and background of the speech may be the depictions of the virtues of ideal kings that were a staple of Hellenistic literature, what was truly special was the appearance of the well-functioning machinery of law that enabled the emperor’s wisdom, virtues, and justice to reach even the lowliest of his subjects. Though the praise of Aelius Aristides was as much of an ideal, a hope of something that should be, not necessarily a realistic depiction of the system at work, it was a recognition of the aspirations of Roman justice. 22 23

Rawson, ‘Philosophic Adviser’ (1989). Flinterman, ‘Sophists and Emperors’ (2004), 365.

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HADRIAN AND HIS SUCCESSORS AS ENLIGHTENED ADJUDICATORS From the relative dearth of information about the emperors’ exercise of jurisdiction before the reign of Hadrian, we now begin to encounter an embarrassment of riches with regards to material. The purpose of this section is to investigate the contradictory narratives of imperial adjudication as they are manifested in the historical sources as well as the imperial legal constitutions found in both legal sources and in epigraphic material. What is especially interesting is how much the various emperors from Hadrian onwards embark on judicial activism, advancing social and moral aims with their rulings. For example, emperors begin to encroach on the traditional powers of families as well as the principle of self-help that underlined much of the earlier Roman legal tradition. These narratives of the emperors listening to the people and righting wrongs by bringing justice were clearly part of the image of the good emperor. What is interesting is how this expectation of justice was reflected in the more mundane legal issues that came up in the rescripts and decisions, where the emperor had to be not only the magnanimous good king, but also a judge settling routine cases. We begin the discussion of the adjudicative activities of Hadrian and his successors with a case in which Hadrian punishes a father for the abuse of patria potestas. Marcian wrote that: It is said that when a certain man had killed in the course of a hunt his son, who had been committing adultery with his stepmother, the deified Hadrian deported him to an island [because he acted] more [like] a brigand in killing him than as [one] with a father’s right; for paternal power ought to depend on compassion, not cruelty. Divus Hadrianus fertur, cum in venatione filium suum quidam necaverat, qui novercam adulterabat, in insulam eum deportasse, quod latronis magis quam patris iure eum interfecit: nam patria potestas in pietate debet, non atrocitate consistere.24

The main context of the case is the patria potestas,25 the power of the father over the life and death of the members of his familia. This

24

Dig. 48.9.5. Tr. Watson et al. On the extensive literature, see Rizzi, Imperator cognoscens decrevit (2012), 187–95. 25 For an overview of the issue, see Gaughan, Murder (2010), 23–52; Yaron, ‘Vitae necisque potestas’ (1962); Shaw, ‘Raising and Killing Children’ (2001); Thomas, ‘Vitae

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power was a central feature of Roman law and legal culture, though actual instances where a father exercised this power are rare and mostly belong to the realm of legendary stories (such as the killing of Verginia by her father to spare her from the hands of the decemvir Appius Claudius). This case mentioned by Marcian has, however, a precedent. Valerius Maximus (Val. Max. 5.9.1) recounts that Lucius Gellius (consul of 72 BC) discovered that his son had committed adultery with his stepmother and was planning Gellius’ murder. Instead of killing them at once, Gellius called a meeting of a family court and summoned almost the entire Senate to act as his council. This family court was an ad hoc arrangement to help him deliberate on the correct action to be taken. The son was allowed to defend himself and was acquitted after the proceedings. Valerius praised him for his moderation, because if he rushed to violent action he would have committed a crime rather than punished one.26 In the literature, the case of Hadrian punishing the unnamed father for the misuse of vitae necisque potestas has been seen as a symptom of the increasing limitations on patria potestas set by the ascendant state power.27 However, the question is not simply one of state power over the traditional modes of family control, but also a matter of the rise of the emperor’s adjudicative power. In fact, fathers had even earlier been punished for the abuse of the paternal power. The story of Q. Fabius Maximus Eburnus (consul of 116 BC) is a good example. He had first relegated his son to the countryside after some sort of sexual offence, and afterwards had him killed by two of his slaves. He then freed the slaves as a reward. The case caused an uproar, leading to his prosecution and exile in Nuceria.28 Based on the references in Roman literature, fathers and other relatives were fully within their powers in disciplining and killing relatives, mostly female ones, but it would appear that the real matter of distinction was that such a decision should be taken only with deliberation. What the case does underline is what has been seen as Hadrian’s enlightened attitude towards punishment, where excessive severity and cruelty are necisque potestas’ (1984); Harris, ‘Roman Father’s Power’ (1986); Arjava, ‘Paternal Power’ (1998). 26 On the court of the paterfamilias, see Kunkel, ‘Konsilium im Hausgericht’ (1966); Perry, ‘Paterfamilias’ (2015). 27 Frier and McGinn, Casebook (2004), 196–201. 28 Val. Max. 6.1.5–6; Oros. 5.16.8; Gaughan, Murder (2010), 44–5; see Alexander, Trials (1990), 32 for literature.

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censured. What the issue highlights is the importance of the narrative of the emperor that corrects the law and brings justice. While the acts of the father may have been in accordance with the old law, it violated the sense of justice and equity of the people, and the emperor would naturally side with the people. In general, the reign of Hadrian starts the period from which the clearest evidence of the civil jurisdiction of the emperor becomes available. However, in Hadrian’s time there is little information on the procedure that led to the cases being brought to the emperor and what happened to them afterwards. An exception is the third-century collection called Sententiae et epistulae divi hadriani, which contains Hadrian’s pronouncements in thirteen cases, mostly of civil law. Since the provenance of the text is highly dubious and it contains many grammatical mistakes and curious verdicts, it was long considered to be a work of fiction. With the recent discoveries of papyrological evidence of legal hearings, however, its credibility has improved. For our purposes, two things are noteworthy: first, that all of the cases are quarrels or petitions by regular people outside the elite, and second, that in half of the cases (nos. 2, 3, 7, 11–13) Hadrian displays emotions, either anger, frustration, or admiration, and lets his feelings be known. Some of the cases are simply petitions for beneficia, such as appointments or equestrian status (nos. 1, 5, 8, 12). The majority, much like the rescripts preserved in the Codex, are about relatively minor things, such as neglect by sons (nos. 3, 13), usury (4), congiarium (2, 10), division of profits of a tavern (7), and curatorship (9).29 Otherwise, the historical sources on Hadrian as judge and patron are relatively meagre, with only Dio and the Historia Augusta reporting. Both the Historia Augusta and Dio present a very idealized image of Hadrian as judge, maintaining that he sat in judgement by himself in many cases, but in others he had senators, consuls, or praetors in his consilium. According to the Historia Augusta, Hadrian’s concern for the correct use of law led him to appoint not only his friends and 29 Goetz, Corpus glossariorum latinorum III (1892), 31.28, 387–90. There are two different versions of the text, embedded in a pedagogical text containing samples of Greek and Latin side by side. Schiller was the first to note that the text, while containing many errors, corresponds grammatically to imperial hearings known from other sources. Schiller, ‘Vindication of a Repudiated Text’ (1971); Lewis, ‘Hadriani Sententiae’ (1991); Millar, Emperor (1992 [1977]), 532. The search continues for new legal material from the same manuscript, see Dickey, ‘Hermeneumata Pseudodositheana’ (2014).

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members of the staff to his judicial council, but also the best jurists, such as Celsus, Salvius Julianus, and Neratius Priscus. His advisers were all accepted by the Senate, and even Dio mentions that he dealt with the affairs of the state with the help of the Senate.30 In the spatial arrangements of imperial jurisdiction, Hadrian represents a significant end of an era, as he is the last emperor to have adjudicated in the Forum. According to Dio, Hadrian held trials in various places, such as the palace, the Forum, or Pantheon. His court sessions were always in public on a tribunal. Not only did he have advisers with him, but he would at times join the consuls in trying cases.31 The image of the palace and Palatium as a place of justice was enforced by the account of the court of the praetorian prefect, also situated near the palace during the time of Hadrian. The use of the Pantheon as a courtroom is not reported beyond this single reference, a testament perhaps as much to the pride of Hadrian in his most famous building project as to the symbolic connection between the universality of his justice and the temple.32 Hadrian appointed four proconsular officials to administer justice in Italy. Though his reputation is that of an enlightened judge, he was not above settling a grudge by having someone put to death.33 The Historia Augusta on Antoninus Pius mentions that he was among the four consulars who were chosen by Hadrian to administer justice in Italy.34 The later jurist Paul mentions how Hadrian enlarged the jurisdiction of the prefect of the city in civil matters.35 Beyond these anecdotal accounts, there is very little evidence. Hadrian is the first emperor whose rescripts have been preserved in the Digest and the Codex in greater numbers. The rescript system appears to become more formalized, or at least the rescripts themselves figure more prominently in the sources from Hadrian onwards. Rescripts, as they are now known, were answers to petitions by the emperor that were often legally significant. Because petitioning an emperor was comparably easier than having the emperor adjudicate 30

SHA Hadr. 18.1, 22.11–12; Cass. Dio 69.7.1–2. Cass. Dio 69.7.1–2. 32 Cass. Dio 69.18.2–3; De Angelis, ‘The Emperor’s Justice’ (2010), 136, 147, 152–4. 33 Cass. Dio 69.4.1–3; SHA Hadr. 22.13. 34 SHA Pius 2.11. SHA Marc. 11.6 mentions how Marcus would replace these consulares with iuridici. On these iuridici and their extraordinary role in the administration of justice, see Beggio, ‘Riflessioni sui iuridici’ (2013); Dig. 1.20.1–2. 35 Dig. 1.12.2. 31

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in your case, and the emperors were willing to answer them, the rescript system became a central part of the way the emperor exercised his influence in legal proceedings.36 The change may be seen as brought about by Hadrian, as Trajan was consciously reluctant to issue rescripts in order to avoid setting legal precedents.37 That is not to say that Hadrian was not sitting as a judge. Evidence from papyri show that Hadrian had even attended to some cases repeatedly. P.Teb. II 286 shows that one man had succeeded in having his case or cases heard by Hadrian on two successive days.38 It was a different matter, however, to reach someone physically and gain an audience than to be able to send a written message. A number of Hadrian’s legal decisions have been preserved, mainly in the Digest. What these cases indicate is that the emperor had an active interest in addressing the concerns of the less powerful, or at least appeared to have such an interest. Hadrian would side with the widow, the slave, the son under patria potestas in general against a strict reading of the law that would otherwise have allowed them to be maltreated. Some issues may be considered to have gained a modicum of notoriety. For example, Ulpian mentions that Hadrian decided to relegate a matron called Umbricia for five years because she had horribly abused her slave girl for the smallest of reasons.39 The case, as Ulpian notes, was a delicate one. On one hand, the rights of slaveowners to control their property should be protected, but on the other, so should slaves be protected against abuse. As a result, it was underlined that the punishment in this particular case should not be seen as a precedent. However, Hadrian and Antoninus Pius did institute general protections for slaves. Hadrian maintained that slaves could not be killed unlawfully, not be forced into prostitution, or conscripted as gladiators, while Pius wrote that slaves were not to be subject to intolerable injury.40 It is unclear whether this may be seen as the first indications of the roots of the human-rights idea, in that the personality and dignity of slaves was recognized,41 but it is evident that slaves were not to be considered purely as property. 36 Sirks, ‘Making a Request to the Emperor’ (2001). On rescripts, see Wilcken, ‘Kaiserreskripten’ (1920); Nörr, ‘Reskriptenpraxis’ (1981). 37 SHA Marc. 13.1; Peachin, Iudex (1996), 19. 38 39 Peachin, Iudex (1996), 87. Dig. 1.6.2. 40 Dig. 1.6.2; Gai. Inst. 1.53; Liebs, Summoned to the Roman Courts (2012), 139–50. 41 Honoré, Ulpian (2002), 86.

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Hadrian demonstrated concern for the troops and the ill effects of long campaigns and deployments far away. Paul refers to a decision of Hadrian to reinstate a son serving in the military as heir. The son had been passed over in the will because his mother heard that he had died. Even though Hadrian reinstated the son as heir, he upheld manumissions and legacies in the same document.42 Even in criminal cases where the strict letter of the law demanded harsher punishments, Hadrian opted for more lenient administrative solutions such as relegation.43 Ulpian mentions a case brought to Hadrian from the governor of Baetica. Hadrian confirmed the governor’s decision to relegate a man for five years for causing the death of another per lasciviam.44 Papinian says that Hadrian relegated a man for three years for taking someone else’s wife to live with him when his own wife was away on a journey.45 Not all cases adjudicated by Hadrian contain such lofty ideals; some were decidedly mundane, though important in the development of private law. Pomponius says that Hadrian resolved a case regarding the right to use of a forest as a legacy by stating that the right to use fruits should be included in the legacy.46 Important as the rulings of Hadrian may be, there are twice as many rescripts preserved in the legal sources as decreta.47 It is, of course, impossible to say anything about the total number of decisions or rescripts from which the existing quotations were culled, but the fact that both are numerously attested in legal sources is an indication that weighty legal issues were on hand both at the tribunal and in responding to petitions. There is a long debate over whether it was the emperor himself who responded to petitions with rescripts or whether lawyers working at the imperial chancellery actually drafted the letters and sent them on the emperor’s behalf. Scholars have mainly supposed that most of the rescripts were written by secretaries, and some, like Honoré, have even claimed to have identified the style of individual secretaries. The case of Hadrian is quite unique, as his rescripts often have a very personal style. His letters, which are often quoted verbatim, have,

42

Dig. 5.2.28. In some instances, such as the cattle thieves of Dig. 47.14.1; Coll. 11.7.1–4, he adopted a harsher punishment. 44 45 46 Dig. 48.8.4.1. Dig. 24.2.8. Dig. 7.8.22.pr. 47 This is not counting the Sententiae divi Hadriani. 43

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according to Honoré, the air of being written by Hadrian in person.48 Honoré claims that his aim was to make justice more accessible and law more certain. He refers to Hadrian’s intellectual curiosity and pursuit of truth.49 In contrast, Williams’ study on Hadrian’s rescripts attempts to show that it was in fact the emperor himself who answered the questions, and the role of secretaries was limited.50 There are a number of rescripts in which Hadrian clearly demonstrates anger and emotion over the matter at hand. For example, when a petitioner implied that a woman involved in a matter was less than trustworthy, Hadrian angrily replies that he knew her to be without blame or fault.51 In another matter where people of high standing were apparently trying to avoid their duties, Hadrian reproached them strongly.52 Likewise, in responding to a complaint of Julius Tarentinus that a judge had been deceived by false evidence given by bribed witnesses, Hadrian ordered an investigation and maintained that the culprits of this base conduct should be dealt with severely.53 Interpreting emotions from a much-edited text is an enterprise that may leave one open to the danger of projecting presupposed notions on the material, such as the fact that emperors from Trajan to Marcus Aurelius have been lauded for their enlightened character. However, there are cases where it is explicitly stated how an emperor attempted to act virtuously. For example, Hadrian consciously sought to demonstrate his humanitas towards the soldiers.54 Equally, as we will see later, Antoninus Pius explained how he sought a more humane solution to a legal problem, as did Marcus.55 The narrative function of demonstrating emotion and the underlining of the humane nature of the solution is the same: it shows how the emperor cares deeply about justice and his subjects, striving to personally bring it to them. Hadrian’s leniency did not extend to one category: slaves who kill their masters or fail to protect them. In a rescript quoted verbatim over the SC Silanianum, Hadrian wrote that a slave girl

48

Honoré, Emperors and Lawyers (1994), 13. Honoré, Emperors and Lawyers (1994), 12. 50 Williams, ‘Individuality in the Imperial Constitutions’ (1976), 69–70. 51 FIRA III.100, l. 4–9 (P.Teb. 286); Williams, ‘Individuality in the Imperial Constitutions’ (1976), 70. 52 Dig. 27.1.15.17; Williams, ‘Individuality in the Imperial Constitutions’ (1976), 70. 53 54 55 Dig. 42.1.33. BGU I.140 = FIRA I.78. Dig. 27.4.3, 28.4.3. 49

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who failed to protect her mistress by screaming should be punished with death.56 In general, the rescripts of Hadrian are a jumbled mass of decisions and certainly bear little resemblance to the emperor magnanimously granting the wishes of petitioners. One reason for this may be that what is preserved of the rescripts are excerpts of what the jurists quoting them found to be relevant. For example, Ulpian quotes at length a rescript of Hadrian on the meaning of the term ‘old clothes’.57 For the high-minded narratives of imperial justice these issues were purely irrelevant, but for the functioning of the legal system they were vital. Some do contain resolutions for concrete cases on issues such as correct burial-places.58 The mechanism of rescripts may be seen as a continuation of the familiar theme of individuals petitioning the ruler. The epitome of Dio’s Roman history recounts an event during the reign of Hadrian when an old lady asked Hadrian a question and he said he was too busy to stop and answer her. She retorted: ‘Cease, then, being emperor’, whereupon Hadrian stopped and granted her a hearing.59 Such stories, with almost identical wordings, were told of kings Philip II and Demetrius Poliorcetes by Plutarch, suggesting a wellestablished literary trope.60 Aulus Gellius writes that Hadrian heard a case regarding the birth of a child to a widow eleven months after the death of her husband. Hadrian decided that the child could be by her husband.61 Although biologically questionable, this ruling was first and foremost of a charitable nature, like similar ones given elsewhere. What remains unknown is how cases like this came to be heard by the emperor. The wording reveals that Hadrian heard the case,62 but does that mean that it came up in an open hearing or a court session? The fact that emperors responded to petitions is fairly conventional in the light of the traditions and practices of ruling in pre-modern

56 Dig. 29.5.1.28. In another case, Hadrian recommends torturing the slave Agricola for information, Dig. 48.18.1.22. 57 Dig. 48.20.6. 58 Hadrian prescribed in a rescript a fine of 40 pieces of gold for those who bury bodies within the city. Dig. 47.12.3.5. 59 Cass. Dio 69.6. 60 Plut. Mor. 179 C–D, Vit. Demetr. 42.11; for other references, see Millar, Emperor (1992 [1977]), 3–4. 61 62 Gell. NA 3.16.12. Millar, Emperor (1992 [1977]), 532.

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societies. What is unconventional and extraordinary is that the Roman emperors, at least from the age of Hadrian onwards, begin to respond to petitions in a regular manner through writing. One could surmise that the illusion of the ruler’s availability might have been upheld with less. The fact that responding to petitions (either through letters, petitions, or appeals) becomes one of the central preoccupations of the Roman emperor and the central vehicle for the advancement of private law is almost unique, as shown by Aelius Aristides. In the context of the empire, what the possibilities opened by the libellus procedure meant was that even provincials could and did approach the emperor and were given a reply that could be used to pressure the local magistrate or governor to act accordingly.63 From the preserved rescripts, it is evident that the emperors often wrote back to petitioners simply instructing them to contact the relevant authorities. For example, Antoninus Pius advised a claimant to contact ‘the relevant judges’ with his request. In short, Pius acknowledged the claim, but the judges were to verify that the circumstances of the case were as claimed.64 This becomes a standard way of replying, and solves the issues of ascertaining the facts and executing the decision by delegating it to lower magistrates. It became equally clear that whatever the emperor did was bound to have an impact on the rulings of lower magistrates and judges, because they might come to be considered precedents. In a letter, Marcus Aurelius reminds Fronto of his earlier attempt to warn Pius of this phenomenon, that his rulings would be precedents for all magistrates in all provinces.65 Pius, in a letter to Thracians, writes that one is permitted to appeal even an imperial rescript, since it may be shown that the original petition had misrepresented the case.66 It is evident that the possibility of gaining the upper hand in a legal process through an imperial rescript would lead to petitioners taking their cases directly to the emperor, bypassing whatever local courts there might have been. In consequence, Marcus and Verus wrote in a rescript that: ‘[A]ppeals which were made direct to the emperor, bypassing those to whom appeals ought to be made from the lower

63

Millar, Emperor (1992 [1977]), 544–5. Dig. 25.3.5.7, similarly Cod. Iust. 2.1.1. The same emperor referring a case to the consuls, Dig. 34.1.3. 65 66 Fronto, Ep. ad M. Caes. 1.6.2–3. Dig. 49.1.1.1. 64

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courts, were to be referred to the provincial governors.’67 Such a limitation and others that accompanied it68 were no doubt meant to preserve the functioning of the system at large since without it all other courts would lose their validity.69 What the imperial rescripts meant for legal scholarship is disputed, but one can say with certainty that the aims of the jurists were not in line with the aim of the emperor to appear as a good judge and great king. The fact that the emperor could respond to a petitioner and his word would have the power of law would make much of the task of legal interpretation redundant. One would only need to ask the emperor. However, from the later emperors we have cases in which the emperor discusses the matter with his advisers, among them noted lawyers. A further complexity is that the emperor may issue rescripts that have the force of law, but in order to have general importance the ruling would have to make its way into the writings of the jurists. Because the rescripts were not necessarily available for consultation, beyond private collections, the jurists were to a certain degree guardians of what made its way into the doctrine of law. The emperor may very well have been all-powerful, but whether his legal opinion was cited as precedent depended on the lawyers. What the narratives of jurisdiction in the legal sources add to the familiar pattern of petition and response between ruler and subject is the consultation of jurists, who were very cautious in the presence of emperors themselves, but not shy of criticizing their decisions afterwards. The conception of the emperor as an all-powerful and assiduous judge permeates literature from the second and third centuries.70 Even the emperors themselves begin to be quite frank about their sovereignty. The exceptionality of any limits to imperial sovereignty was formulated by Antoninus Pius, who wrote in a rescript that: ‘I am master of the world, but the law of the sea must be judged by the sea law of the Rhodians where our own law does not conflict with it.’ The rescript, which is quoted by Maecianus, was to Eudaemon of Nicomedia, who had been robbed by the people of the Cyclades after

67

68 Dig. 49.1.21.pr. Dig. 49.1.21. In the next chapter, the process involving Goharians bypassed this very rule. See earlier Kelly, Princeps Iudex (1957), 98–9. 70 Millar, Emperor (1992 [1977]), 528–9. 69

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a shipwreck.71 The conclusion is that the Roman emperor was understood to be a universal ruler, but he chose to allow the customary law of the Rhodians be used in the laws of the seas. This voluntary distinction makes the rescript ever more significant, as it affirms Pius’ intent to communicate his universal power and authority, but even more his considerate and restrained use of this power.72 The case also illustrates the possible ways that rescripts might come to be quoted by jurists. Volusius Maecianus was a legal secretary (a libellis) under Pius, and thus it is possible that this might have been a response that Maecianus heard personally or even written down. Like Hadrian, Pius (r. AD 138–61) was concerned with the maltreatment of slaves, which led to complex problems. For example, a rescript of Pius (Dig. 1.6.2) was obviously a response to a pressing situation, because he first very clearly states that the rights of slaveowners will not be infringed, but secondly orders Aelius Marcianus, proconsul of Baetica, to examine the treatment of the slaves of Julius Sabinus. They had escaped to the emperor’s statue, and if their treatment has been overly harsh Pius ordered Marcianus to manage their sale from their current master. Finally, he gives the instruction that if the owner attempts to evade his orders, severe retribution will follow.73 If Hadrian’s rescripts were full of emotion and personal touches, those of Antoninus Pius are characterized by the liberal use of sarcasm and irony.74 However, he also maintained the sanctity of the imperial dignity. Pius had written in a rescript that a man who had used the image of the emperor to arouse hatred in another man was to be sentenced to public imprisonment.75 The first rescripts in the Codex of Justinian are from Pius. Of the eleven of his rescripts that are preserved, only two may be considered to have resolved the 71 Dig. 14.2.9: Maecianus ex lege Rhodia. Ἀξίωσις Εὐδαίμονος Νικομηδέως πρὸς Ἀντωνῖνον βασιλέα. Κύριε βασιλεῦ Ἀντωνῖνε, ναυφράγιον ποιήσαντες ἐν τῇ Ἰταλιᾳ διηρπάγημεν ὑπὸ τῶν δημοσίων τῶν τάς Κυκλάδας νήσους οἰκούντων. Ἀντωνῖνος εἶπεν Εὐδαίμονι. ἐγὼ μὲν τοῦ κόσμου κύριος, ὁ δὲ νόμος τῆς θαλάσσης. τῷ νόμῳ τῶν ‘Ροδίων κρινέσθω τῷ ναυτικῷ, ἐν οἶς μήτις τῶν ἡμετέρων αὐτῷ νόμος ἐναντιοῦται. τοῦτο δὲ αὐτὸ καὶ ὁ θειότατος Αὔγουστος ἔκρινεν. See Aubert, ‘Dealing with the Abyss’ (2007) for references. 72 Marotta, Multa de iure (1988), offers an important reading of the multifaceted cultural context of the chosen wording. 73 The literature is quite extensive, see McGinn, Prostitution (1998), 306–11; Caravaglios, ‘Male nostro’ (2014) for references. See also Gaius 1.53. 74 Williams, ‘Individuality in the Imperial Constitutions’ (1976), 74–8. 75 Dig. 48.19.28.7 (Callistratus).

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case at hand,76 while the others are clarifications of legal issues. Even here, there may be noted some instances where the emperor appears to make a moral point, for example, when affirming that children should help their parents in need.77 Otherwise we know little of Antoninus Pius’ practice of adjudication.78 The Historia Augusta mentions that he established a number of legal principles with the help of leading jurisprudents. It is a sign of the inaccuracy of the Historia Augusta that most of the names of these jurists are wrong.79 There are signs that jurists were concerned about attempts to influence imperial judgments by what could be only described as bribery. For example, Paul wrote that it is wrong to make the emperor an heir for the sake of litigation, calling it a misuse of the imperial majesty.80 Appointing the emperor as heir was, of course, a common course of action during the empire, with numerous explanations such as gaining imperial favour or getting the help of the fisc in the enforcement of the will. Marcus Aurelius (r. AD 161–80), perhaps more than any other emperor of the era, attempted to consciously grasp the full implications of the imperial powers and to combine them with the narrative of the good king-judge.81 In his Meditations he discusses the virtues of his predecessor and adopted father, Antoninus Pius, virtues that were equally relevant in the process of imperial adjudication. The foremost of them was compassion, but almost as important was treating people as they deserved. He was equally willing to listen to experts and to yield to their opinions in matters like oratory or law (Med. 1.16). Marcus’ ideas about law and justice were, as he himself notes, influenced by Stoic philosophy. He envisions an equal society governed by laws, which was ruled with a deep respect for liberty (Med. 4.12). This conception of the ideal society was shadowed by the character of the tyrant, who lingers on the sidelines of arguments like a reminder of the alternative to virtuous kingship (Med. 4.48). The virtues of man, justice, generosity, self-control, sanity, prudence, 76

77 Cod. Iust. 6.37.1, 6.54.1. Cod. Iust. 5.25.1. The best study on Antoninus Pius and the law is Marotta, Multa de iure (1988). 79 SHA Pius 12.1: Salvius Valens is most likely Salvius Julianus, Diavolenus is Javolenus, and so on. 80 Dig. 28.5.93(92). 81 There are just a few studies on Marcus Aurelius and the law; see e.g. Arcaria, Oratio Marci (2003). 78

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honesty, humility, and so on (Med. 4.49a) can also be seen as the virtues one should aspire to as a judge. Continuing the narrative of the good and conscientious emperorjudge, the author of the Historia Augusta reports that Marcus Aurelius was considered to be a fair and conscientious judge, who employed a number of leading lawyers in his consilium.82 We may see the way that he operated in the famous imperial cognition from 166 regarding the interpretation of the will of Valerius Nepos. The issue was that Nepos had erased the names of his heirs from his will, making the will ineffectual along with the manumissions and legacies involved. After hearing the arguments for and against, Marcus sent everyone away to deliberate. When he admitted them once more, he announced that he would opt for a more humane interpretation: only the provisions that were erased would be null and void, and the rest of the will would stand. In this, as in a couple of other cases, the text retains the arguments of the lawyers about the case and shows the emperor’s deliberations as being based on them. Whether or not the emperor made these deliberations alone is debatable. In this case, the wording of Marcellus is that he sent everyone away, but whether that included his consilium and its lawyers remains open.83 Again, the narrative sends the message of the centrality of the emperor. The duality between the narratives of good and bad emperors was sometimes apparent in the depictions of dual reigns such as those of Marcus Aurelius and Lucius Verus (r. AD 161–9), which were reduced to stereotypical lengths. The often-presented comparison between the behaviour of Marcus and his brother Lucius when they shared a villa outside Rome is an indicator of Marcus’ image: Marcus industriously sat as a judge for five days, examining legal cases with care, while Lucius engaged in sordid debaucheries with actors and other lowly characters.84 This example shows more the literary theme of comparing good and bad emperors than the actual actions of Marcus and Lucius. Marcus was taught by Fronto, and their correspondence reveals an interesting outlook on the figure of the emperor at the time. Marcus 82

SHA Marc. 9–12; Honoré, Emperors and Lawyers (1994), 16–19. Dig. 28.4.3. The text contains the wordings of the deliberation, a very rare instance. Honoré, Emperors and Lawyers (1994), 18; Rizzi, Imperator cognoscens decrevit (2012), 151–74 on earlier literature. Other good examples of Marcus’s weighing of legal opinions are Dig. 37.14.17, 48.7.7. 84 SHA Verus 8.8–10. 83

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calls Fronto his magister, whereas Fronto writes to him, addressing Marcus as his dominus. In a letter mentioned earlier from 144–5, Marcus quotes a speech apparently sent to him by Fronto which describes the precedental nature of imperial jurisdiction: tuis autem decretis, imperator, exempla publice valitura in perpetuum sanciuntur (‘your decrees, emperor, will have permanent validity as precedents’). What Fronto, and by extension Marcus, are implying is that the imperial power over law is nearly limitless. The power of the emperor is greater than that of the Fates, because they decide what happens to individuals whereas the emperor decides what happens to all.85 In some cases this meant that the emperors were to bring justice even to people under duress. Marcus and Lucius applauded the actions of Voconius Saxa, the proconsul of Africa, who had tortured the slave Primitivus to ascertain the truth. Primitivus had confessed to a murder in order to escape his abusive master, but after being cleared of the charges he was ordered him to be sold to another. Ulpian, in his conclusion, writes that in cases like this the task of the governor is to write to the emperor.86 The Historia Augusta reports that Marcus Aurelius was very careful in the administration of justice. He followed the example of Hadrian and appointed consulars to administer justice in Italy. He would hear capital cases against senators himself before a public trial.87 Dio writes that Marcus dealt with the senatorial conspiracy of Cassius very leniently, executing only a few. He did not even try the conspirators himself, but rather sent them to be tried in the Senate.88 The main civil responsibility of the emperor, even in adjudication, was maintaining the peace. Much of that involved the management of the often-quarrelling elite of the empire. Herodes Atticus was engaged in a lawsuit that stemmed from power-struggles in Athens. Finally, the case was heard by Marcus Aurelius at Sirmium. Herodes was distraught due to the recent sudden death of two young girls he had raised. According to Philostratus, he longed for death when he came to speak in front of the emperor. He launched into direct attacks against Marcus, so much so that Bassaeus, the praetorian prefect, noted that he evidently wanted to die. Herodes then left the court, not

85 87

86 Fronto, Ep. ad M Caes. 1.6.2–3. Dig. 48.18.1.27. 88 SHA Marc. 10.7–12. Cass. Dio 71(72).28.2.

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using the time allotted to him.89 Marcus never changed his expression when listening to the speech, but when the Athenian embassy listed their accusations against Herodes, the emperor burst into tears. In the end, he punished Herodes’ freedmen.90 To what extent emperors would be expected to delve into local matters is a matter of debate, but we have a number of instances where an emperor would be needed to step in to quell mistrust and strife (as we saw earlier in the involvement of Claudius in the disputes between Greeks and Jews in Alexandria). One of these is a letter from Marcus Aurelius dealing with the same Herodes Atticus. It can be dated to the year 174–5, the year after the incident at Sirmium. It is a long inscription that contains Marcus’ verdicts on a number of issues. Most of them are matters pertaining to local magistracies and priesthoods, a curious collection of affairs that most likely have a political connection (citizenship rights, recalling an exile, and so on). Modern observers have noted that the aim of the rulings (a number of cases were delegated to judges) may have been to restore peace in the city and settle the disputes between Herodes Atticus and the Athenians. From the wording and the attitude of the author of the text, Williams has convincingly argued that the main part of the text was drafted personally by Marcus himself (it even includes an apology for his bad Greek).91 What the text demonstrates is that while the emperor may be all-powerful, he still needs to operate through persuasion and bargaining. In a number of issues Marcus clearly reluctantly accedes to the demands of Athenians in an effort to bring about peace between the factions. Beyond the examples of the magnanimity and poise of the Stoic emperor, there are a number of purely technical issues of law that Marcus decided, such as matters regarding testaments and the interest of the fisc.92 Marcus and Lucius replied to Flavia Tertulla on a

89 It would appear that even in the emperor’s court, time was a controlled quantity, cf. the Alexandrian embassy in front of Claudius (see Ch. 3). 90 Philostr. V S 2.560–2; Millar, Emperor (1992 [1977]), 4–5. According to the story, Herodes himself went to live in Attica and several years later, wondering whether the emperor was angry at him, wrote to him, but more in the manner of a complaint than an apology, receiving a friendly reply from Marcus. 91 Wankerl, Appello (2009), 17–68 Millar, Emperor (1992 [1977]), 512; Williams, ‘Individuality in the Imperial Constitutions’ (1976), 79; Williams, ‘Formal and Historical Aspects’ (1975); Oliver, Greek Constitutions (1989), 366–95. 92 Dig. 34.9.12, 34.9.16.2; Cod. Iust. 6.54.2.

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matter regarding the validity of her marriage to her uncle in ignorance of the law. They wrote that they were moved by the length of the marriage and the fact that it was arranged by her grandmother, and by the number of her children. Therefore they conclude that the marriage should be regarded as legitimate.93 In many instances it is hard to determine where an issue was a technicality and where a matter of principle. For example, a definition of a term could entail a principled stand on limiting the use of selfhelp and enforcing the use of legal proceedings. The question was whether self-help would be allowed in the collection of a debt; for instance, could the creditor enter the property of the debtor and seize it? In a reply to the claim of Marcianus, Marcus took a strong stand and maintained that vis or violence is not only when people are injured, but also when property is taken without proper legal authorization. It is evident from the wording that the issue was discussed in oral proceedings, making Marcus’ allegations about Marcianus compromising both his dignity and his piety with his unlawful acts quite striking.94 The locations where the emperor sat in judgment, if mentioned at all, begin to be references to imperial reception halls. In the Digest, Marcus is mentioned to have resolved an issue regarding the will of a praetorian from Sparta in his auditorium.95 The narrative duality of good and bad emperors is, for the historians, demonstrated in the contrast between Marcus and his successor Commodus (r. AD 180–92).96 While Marcus had been a diligent and observant judge, Commodus neglected his duties. When he did adjudicate, he was described as lazy and incompetent.97 While he reigned for twelve years, only a few of his rulings survive.98 Commodus’ reign was dominated by his cubicularius, his freedman Cleander, who made huge profits by selling offices and privileges.99 After Maternus’ plot, Commodus mostly retreated from Rome and did not appear in public, avoiding legal and imperial business.100 In her 93

Dig. 23.2.57.1. Dig. 48.7.7; Liebs, Summoned to the Roman Courts (2012), 155–64. 95 96 Dig. 36.1.23.pr. Hekster, Commodus (2002). 97 Dio, who normally recounts each emperor’s style of adjudication, only remarks the laziness and incompetence of Commodus. Cass. Dio 72(73).9.1, 72(73).10.2; Honoré, Emperors and Lawyers (1994), 16–19. 98 Dig. 49.14.31 is a rare example of his sole reign. 99 100 Cass. Dio 72(73).12–13; Herodian 1.13.4. Herodian 1.11.5. 94

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argument that emperors and not imperial functionaries composed the bulk of the rescripts, Williams notes that if officials drafted rescripts, Commodus’ laziness and incompetence would not have made any difference. Indeed, there are nearly no rescripts or constitutions from his reign. Honoré has countered that this was due to his memory being damned.101 Despite being almost universally vilified, even Commodus was hailed by petitioners in laudatory terms.102 The inscription containing the petition of the coloni of the imperial estate Saltus Burunitanus (CIL VIII 10570) from North Africa to Commodus, dated 15 May 181, provides a very good example of how petitioners used the language of oppression to make their case. In accordance with the near-universal rhetorical structure used by subjects petitioning monarchs or praying to gods, they present themselves as weak but loyal peasants who are being oppressed by powerful men. They write that their opponent, the leaseholder, sent soldiers to harass them, and they cannot get justice because the local magistrates have been bribed and the imperial laws are not obeyed. Thus, only an intervention by the great and powerful emperor will save the day.103 In conclusion, the evidence from the reign of Hadrian onwards demonstrates how central the imperial adjudication had become in the narrative tradition. In this narrative, the emperor sought to demonstrate his humanity and consideration in the exercise of power. With the spread of the giving of rescripts, imperial justice became easier and easier to attain. This meant that the emperors had more direct access to the people, which signified that they were liable to demonstrate not only their virtues but also their bureaucratic administrative side in their adjudication. From the contents of the decisions and rescripts, it is apparent that the emperors were beginning to believe in the ideal of the virtuous ruler as the bringer of justice to their subjects.

101 Williams, ‘Individuality in the Imperial Constitutions’ (1976), 82; Honoré, Emperors and Lawyers (1994), 19. 102 As Hekster, Commodus (2002) demonstrates, Commodus was quite popular in some segments of the population. 103 Hauken, Petition and Response (1998), 2–28. The fragmentary inscription from Qasr Mezuar is linked with the Saltus Burunitanus inscription and contains a similar petition to Commodus from the coloni of an imperial estate.

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The two extremes of the good king and the evil tyrant are also continuously present in Suetonius’ Lives of the Caesars, which has had the greatest influence on our view of the Roman emperors. Often in a baffling manner, Suetonius constantly combines these two extremes and shows his otherwise quite mad emperors acting as conscientious and reasonable judges. Compared with previous literature, in the writings of Suetonius reports of emperors adjudicating are multiplied and he shows adjudication as a part of the emperor’s normal activities. Another, less studied indicator is the reading of Suetonius’ depictions of emperors acting as judges as exemplary portrayals of imperial power and responsibility. Suetonius, an imperial official under Hadrian, portrays examples of the way in which the emperor should and should not act. Augustus is depicted as a good, generous emperor and diligent, merciful judge, who also has a ruthless and lethal side. Tiberius similarly balances between the roles of good prince and evil tyrant, succumbing at last to the dark side, which is shown by his callous disregard for the rules of the reciprocal gift exchange that linked the emperor to the people. Caligula is an example of a simple tyrant, who is clearly incapable of handling the limitless power he has. Claudius, on the other hand, lacks the dignity, gravity, and virtue essential to an emperor.104 The aim of this section is to study the image of the good emperor as judge in Suetonius and, through the narratives of the good and bad, explore how adjudication served as a mirror of the emperor’s character. Suetonius revels in describing the imperial virtues and vices,105 and his description reflects the contested narratives of imperial adjudication. Though Suetonius’ approach to law has been seen as haphazardly changing, there is remarkably little in the way of misconceptions and inaccuracies.106 Through the depictions of Suetonius on imperial jurisdiction, it is evident that not only was it a central part of the emperor’s duties, but also a field where imperial virtues and vices are displayed.

104 Suet. Aug. 27, 33–4, 53.1–2; Suet. Tib. 33, 60–1; Suet. Calig. 33–4; Suet. Claud. 14–15. On Suetonius’ use of exempla, see Gunderson, ‘E.g. Augustus’ (2014), 135. 105 Bradley, ‘Imperial Virtues’ (1976); Lambrecht, Herrscherbild und Prinzipatsidee (1984); Bradley, ‘The Imperial Ideal’ (1991). 106 Bauman, ‘Legislation in Suetonius’ (1982), 124.

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Facts about Suetonius’ life and career are contested, but the evidence suggests a very accomplished equestrian career. In an inscription from Hippo Regius in North Africa (AE 1953, 27–8 no. 73), we learn that he was a juror during the reign of Trajan and held a number of important posts in the imperial chancellery, possibly first under Trajan but mostly under Hadrian. He was first a studiis (an official assigned to research matters and draft texts), then a bibliothecis (in charge of the imperial libraries), and finally ab epistulis (official in charge of imperial correspondence). Hadrian dismissed him from this position at the same time as his possible patron Septicius Clarus, the praetorian prefect (SHA Hadr. 11.3), most likely in AD 122. At the same time, he was a fairly well-known writer and a friend of Pliny. Whether one should call Suetonius a historian like his contemporary Tacitus is questionable; he was first and foremost a biographer, who wrote two main works, first De viris illustribus and later his imperial biographies.107 In earlier scholarship Suetonius’ biographies were lambasted as a sordid collection of rumours that were of dubious value to historical scholarship, but recent scholars have recognized his value as an author.108 Though he writes extensively about law, there has been minimal scholarship on this side of his work.109 Apart from Caesar and Augustus, Suetonius’ emperors appear mostly as stock figures that have little character of their own apart from descriptions of appearance. They are merely acting out the deeds and events of each emperor’s life. Those emperors deemed exemplary in their actions are so in a quite uniform way, save for a characteristic or two to distinguish them, such as Vespasian’s miserliness. Suetonius quite clearly had an idea of what a good emperor was 107

Pliny wrote to him to encourage his writing (Ep. 5.10). On Suetonius’ life and career, see Townend, ‘Hippo Inscription’ (1961); Baldwin, ‘Suetonius’ (1975); Syme, ‘Travels of Suetonius’ (1981); Wallace-Hadrill, Suetonius (1983); Baldwin, Suetonius (1983); Sanders, ‘Suetonius in the Civil Service’ (1944); Lounsbury, Arts of Suetonius (1987); Lindsay, ‘Suetonius as ab epistulis’ (1994); Wardle, ‘Suetonius as ab epistulis’ (2002). 108 On the re-examination of Suetonius the historian and biographer, see WallaceHadrill, Suetonius (1983); Baldwin, Suetonius (1983); Bradley, ‘The Imperial Ideal’ (1991); Lewis, ‘Suetonius’ Caesares’ (1991). On the biographical model of Suetonius and its relation to Plutarch and others, see Bowersock, ‘Vita Caesarum’ (1998); Lewis, ‘Suetonius’ Caesares’ (1991). Wallace-Hadrill would famously state that Suetonius wrote ‘not-history’ (Wallace-Hadrill, Suetonius (1983), 9). On his relationship with archival sources, see De Coninck, ‘Sources documentaries de Suétone’ (1991). 109 On Suetonius and law, see Tomulescu, ‘Les Douze Césars et le droit romain’ (1977); Bauman, ‘Legislation in Suetonius’ (1982).

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and what were the typical imperial virtues and vices, much like the concept of the good emperor in Pliny.110 However, despite his earlier poor reputation, newer scholarship has acknowledged the balanced and impartial treatment that Suetonius accords to his subjects.111 Much has been written about the relationship between Suetonius and Hadrian and whether his dismissal would have reflected in his writings, with some arguing that the emperor biographies are a veiled criticism of Hadrian. Such a view does not find support in the sources.112 It has been equally suggested that the Vitae might have been a programmatic text aimed at Hadrian,113 but all such claims are most likely wishful thinking. The good emperor-judge is described as a collection of virtuous actions, being strict, severe, lenient, scrupulous, or conscientious. Just a few examples suffice: He [Caesar] administered justice with the utmost conscientiousness and strictness. Ius laboriosissime ac severissime dixit.114 He [Augustus] himself administered justice regularly and sometimes up to nightfall, having a litter placed upon the tribunal, if he was indisposed, or even lying down at home. In his administration of justice he was both highly conscientious and very lenient . . . Ipse ius dixit assidue et in noctem nonnumquam, si parum corpore valeret lectica pro tribunali collocata, vel etiam domi cubans. Dixit autem ius non diligentia modo summa sed et lenitate.115 He [Claudius] administered justice most conscientiously both as consul and when out of office . . . Ius et consul et extra honourem laboriosissime dixit . . . 116

110

Wallace-Hadrill, Suetonius (1983), 152–7; Baldwin, Suetonius (1983), 269. Konstan, Reading Politics (2009), 455–6. 112 While Bradley, ‘Imperial Virtues’ (1976), 251 does not offer much evidence other than the lack of evidence for his rejection of contemporary criticism, attempts at finding reliably contemporary themes have not been successful either. See Carney, ‘How Suetonius’ Lives Reflect on Hadrian’ (1968); Wardle, ‘Suetonius and His Own Day’ (1998), writes that the evidence for a Hadrianic critique is too vague to allow conclusive remarks. 113 Cizek, Structures et idéologie (1977). 114 Suet. Iul. 43. Tr. here and below Rolfe with slight modifications. See also Bauman, ‘Legislation in Suetonius’ (1982), 94–5. 115 116 Suet. Aug. 33.1. Suet. Claud. 14. 111

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He [Domitian] administered justice scrupulously and conscientiously, frequently holding special sittings. Ius diligenter et industrie dixit, plerumque et in Foro pro tribunali extra ordinem.117

The repetitive structure of the sentences in which expressions like ius laboriosissime dixit are used for both Caesar and Claudius gives the impression of a formulaic style. Words typical of legal terminology such as ius dixit are stylistically awkward, but they convey the idea that this jurisdictional activity was a regular part of what the emperor did. The virtues of the good judge were that he was assidous, lenient, and diligent, whereas the unworthy emperor-judge appears to have been fickle, inconsistent, unreliable, and timid: But in hearing and deciding cases he [Claudius] showed strange inconsistency of temper, for he was now careful and shrewd, sometimes hasty and inconsiderate, occasionally silly and like a crazy man. In cognoscendo autem ac decernendo mira varietate animi fuit, modo circumspectus et sagax, interdum inconsultus ac praeceps, nonnumquam frivolus amentique similis.118 In the administration of justice he [Nero] was reluctant to render a decision to those who presented cases, except on the following day and in writing. In iuris dictione postulatoribus nisi sequenti die ac per libellos non temere respondit.119

A popular theory maintains that Suetonius’ Augustus was his stereotypical emperor, who is identified with the state and exemplifies Suetonius’ idea of the Principate. According to this theory, biographies of all the other emperors are more or less in reaction to that of Augustus, describing how each emperor took charge of Augustus’ legacy. For Suetonius, every emperor was the father of the country, the emperor’s patria potestas authorizing him to attend to the needs of the state and those of his subjects. The basic elements of imperial jurisdiction were already present in the interpretation of Augustus.

117 Suet. Dom. 8. Suetonius is remarkably positive with regards to Domitian and the law; see Bauman, ‘Legislation in Suetonius’ (1982), 117–24. 118 119 Suet. Claud. 15. Suet. Ner. 15.

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Beginning with Augustus there are the Apollonian implications of the emperor’s divinity, as the emperor is elevated far beyond the people.120 Suetonius clearly took the imperial system and the centrality of the emperor in it for granted. As is natural for an imperial functionary, he identified with the imperial system.121 Each emperor performed his tasks in his own way and Suetonius divided these tasks and evaluated each of them (administration, Senate, provinces, law) individually.122 Suetonius’ idea of the Principate would thus show the state subjected to the needs of the emperor, not the opposite. The res publica had become the res privata of the emperor. In contrast to Tacitus, Suetonius sees the Principate in the light of Trajan’s and Hadrian’s reigns. His image of Augustus is an image of the idea of the Principate of his own time, and shows the living continuity of Augustus’ reforms.123 Suetonius, for example, mentions that Augustus was actually given the supervision of laws and morals in perpetuity, which Augustus himself rejects in the Res gestae.124 Instead of Augustus, I consider Suetonius’ stereotypical emperor to be the slightly darker and divided character who, in different costumes and guises, plays Tiberius, Caligula, Claudius, Nero, and Domitian. Like a Hollywood actor that can essentially play only one character, he is easily recognized by his antics. The character has a divided personality; on the one hand he is a diligent judge, who sticks to procedure and respects the ordinary magistrates; on the other, he is prone to violent tantrums which would often lead to someone getting badly hurt. Tiberius is the first example of this character in Suetonius’ work. During the early part of his reign Tiberius insisted on allowing the magistrates to do their work without imperial interference. The lawcourts would operate as they had before.125 In those trials where he was present, Tiberius would become an assessor or a legal clerk, a situation which Suetonius describes as awkward.126 When Tiberius

120

Lambrecht, Herrscherbild und Prinzipatsidee (1984), 140, 147–9. Alföldy, ‘Staats- und Gesellschaftsdenken bei Sueton’ (1980–1). 122 Wallace-Hadrill, Suetonius (1983), 119–24. 123 Lambrecht, Herrscherbild und Prinzipatsidee (1984), 153–5; Bradley, ‘The Imperial Ideal’ (1991), 3716–17 on how much Suetonius’ imperial ideals can be traced to Augustus and the Res gestae. 124 125 Suet. Aug. 27.5. Suet. Tib. 31.2. 126 Suet. Tib. 33. A similar story is evident in the description of imperial legislation. According to Suetonius, at first Tiberius allowed for decrees to be passed contrary to 121

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finally grew tired of this upholding of a republican façade, he occasionally relapsed into fits of cruelty and torture:127 It is a long story to run through his acts of cruelty in detail; it will be enough to mention the forms which they took, as samples of his barbarity. Not a day passed without an execution, not even those that were sacred and holy; for he put some to death even on New Year's day. Many were accused and condemned with their children and even by their children. The relatives of the victims were forbidden to mourn for them. Special rewards were voted the accusers and sometimes even the witnesses. The word of no informer was doubted. Every crime was treated as capital, even the utterance of a few simple words. Singillatim crudeliter facta eius exsequi longum est; genera, velut exemplaria saevitiae, enumerare sat erit. Nullus a poena hominum cessavit dies, ne religiosus quidem ac sacer; animadversum in quosdam ineunte anno novo. Accusati damnatique multi cum liberis atque etiam a liberis suis. Interdictum ne capite damnatos propinqui lugerent. Decreta accusatoribus praecipua praemia, nonnumquam et testibus. Nemini delatorum fides abrogata. Omne crimen pro capitali receptum, etiam paucorum simpliciumque verborum.128

There is, however, a deeper subtext in the pattern that can be illustrated with the example of the fish. A fisherman in Capri had caught an exceptionally large fish and wanted to give it to the emperor. Unfortunately, he happened to startle the emperor, who ordered the man to be tortured with the fish.129 I would suggest that what Suetonius shows here is not just that Tiberius tortured an innocent man, but he also breaks the traditional bonds of gift exchange. What he would be expected to do, naturally, is to reciprocate with a suitable gift of imperial magnitude. Instead, one does get the impression that Tiberius is going slightly mad, but one is unsure whether the madness is simply a way of explaining his behaviour without criticizing the imperial system of government or an instructive example of how not to behave if you do not want to appear insane. The life of Caligula is a similar story of a good administrator becoming increasingly unhinged. Initially Caligula did not interfere in the courts of law and sought to restrict appeals to himself. He also his expressed opinion. Later, when his dictatorial zeal began to show, he revoked some regulations of the Senate. Suet. Tib. 31.1. 127 Suet. Tib. 61.1; Shotter, ‘Trial of Clutorius Priscus’ (1969), 14–18. 128 129 Suet. Tib. 61.2–3. Suet. Tib. 60.

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began to publish accounts of the empire in the manner of Augustus, a practice discontinued by Tiberius.130 Caligula, of course, went mad in a spectacular fashion, allowing Suetonius to revel in the graphic misdeeds of this former golden boy. There is a pattern of carnivalistic excess in the depiction of Caligula’s reign in which the mighty senators are humiliated, the magistrate’s authority ridiculed, and passion becomes interchangeable with cruelty. Returning to the example of Caligula kissing the neck of his lover, there is a deeper message than one of uncontrolled power.131 What Suetonius illustrates is that when all acceptable forms of behaviour are rejected and all safeguards are gone, no one is safe from the whim of the ruler. Suetonius gives a picture of Claudius as a fickle and inconsistent judge, though one who administered justice conscientiously. Claudius did not follow the letter of the laws, but rather his own notions of justice.132 From Suetonius’ description also comes the classic perfect ruling: ‘I decide in favour of those who have told the truth.’133 Suetonius’ negative version of Claudius as judge was very far removed from the images of other emperors adjudicating, the pleaders abusing Claudius both verbally and physically in the tribunal.134 This description of Claudius shows the lack of respect towards him, but also the lack of fear that surrounded him. The underlying idea is that adjudication is the emperor’s duty and people were entitled to demand that the emperor hears their case. It could also be seen as a sign of the value that an imperial judgment had, making pleaders take extraordinary risks to gain that advantage. Domitian is an atypical case, in which his bad features are revealed before his reign. Suetonius mentions that Domitian was hailed as Caesar after Vitellius had been killed in battle. He then assumed the position of city praetor but turned over the judicial business to his colleagues. Soon he began to act so tyrannically that his reputation was tarnished.135 However, as emperor he was a conscientious and scrupulous judge.136 Suetonius’ atypical good emperors do not make a long list, just Vespasian and Titus. Vespasian was clearly a model emperor, who went on to restore law and justice after years of chaos, selecting commissioners to restore losses due to war.137 He was praised for 130 132 135

Suet. Calig. 16.2–3. Suet. Claud. 14–15. Suet. Dom. 1.3.

131

Suet. Calig. 33–5. Suet. Claud. 15.3. Suet. Dom. 8.1–3. 133

136

137

134 Suet. Claud. 15. Suet. Vesp. 10.

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being approachable. The doors of his palace were open to the people and he often adjudicated in the Forum. As a judge he was industrious, but thought nothing wrong in selling sentences to the highest bidder.138 Suetonius’ story of Vespasian’s muleteer shines an interesting light on the way legal cases were brought to the emperor. Vespasian was on a journey when his muleteer stopped to shoe the mules. He suspected that the delay was simply a ruse to allow a man with a lawsuit to approach him. Vespasian then asked the man how much he was being paid for the job and demanded to be given his share of the profits:139 On a journey, suspecting that his muleteer had got down to shoe the mules merely to make delay and give time for a man with a lawsuit to approach the emperor, he asked how much he was paid for shoeing the mules and insisted on a share of the money. Mulionem in itinere quodam suspicatus ad calciandas mulas desiluisse, ut adeunti litigatori spatium moramque praeberet, interrogavit quanti calciasset, et pactus est lucri partem.140

What this example shows is how valuable and important access to the emperor was considered in legal cases. It is clear that for a petitioner to go through the trouble of organizing this judicial ambush, the potential benefits far outweighed the risks. For the story to be intelligible, the idea that one would go to absurd lengths to reach the emperor would have to resonate with the intended readers. However, the importance of meeting the emperor in person is paralleled with the idea that the emperor devoted time for communication, either in writing or in person. Suetonius’ description of Vespasian’s daily routine is quite typical. Vespasian woke up early, read letters and reports, and then took care of the morning salutation. After that, it was time for the day’s business. However, the members of the household usually waited until after the siesta and dinner to make their requests, as he was most likely to be in a good mood then.141 It is evident from this description that much of the imperial correspondence was still the personal responsibility of the emperor himself. The exceptionality of delegation is underlined when Suetonius mentions how Titus nearly took the role of a co-emperor, dictating letters and edicts in his father’s name.142 138 140

Suet. Vesp. 10; Cass. Dio 65(66).10.5. 141 Suet. Vesp. 23. Suet. Vesp. 21.

139

Suet. Vesp. 23.2. Suet. Tit. 6.

142

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What is clear in the depiction of good and bad emperors in Suetonius is that he wishes to portray even the most positive characters as flawed and conflicted. Sometimes this leads to a clear use of double standards, in which ‘good’ emperors are pardoned for the same acts which in ‘bad’ emperors would be a sign of madness. One observer has remarked that having mistresses or engaging in debaucheries would simply be a character trait in a good emperor but a sign of an irreparable flaw in another. However, consistency was definitely not one of Suetonius’ strengths, as there are clear contradictions in which the same acts committed by the same emperor are seen to be either beneficial good acts or worthless waste.143 One can readily concur with the assessment that, as biography, Suetonius’ work is ‘tarnished . . . by inconsistency, double-standard, error, uncritical use of sources, and downright stupidity’.144 However, that is hardly relevant here. What Suetonius provides is the image of imperial power in the age of Hadrian. Unlike Tacitus, Suetonius is downright optimistic about the imperial power and the way it brings opportunity to men of lower ranks. Coming from a family that had long profited from association with various emperors or imperial functionaries, Suetonius was certainly conscious of the possibilities and dangers inherent in the imperial system. Again, unlike in Tacitus, power does not corrupt in Suetonius, it simply reveals.145 Suetonius’ Roman emperor is a very different creature from that of Seneca, Pliny, or Tacitus, but there are similarities. The emperor is clearly all-but omnipotent, the limits of his power being posed more by what he knew and what his subordinates would let him know than any formal limits. Suetonius, like the others, lays a nearly impossible burden on the emperor’s personal virtues and capabilities, not to mention his managerial abilities for controlling the administration and his own family. What is different in the account of Suetonius is

143 Baldwin, Suetonius (1983), 245, 273. Bradley, ‘The Imperial Ideal’ (1991), 3725 notes that even the ‘bad’ emperors are credited with positive actions. 144 Baldwin, Suetonius (1983), 339. He mentions (pp. 272–3) the example of the nearly identical stories of emperors very publicly taking the wives of dinner-guests from the table for a quick tryst in the bedroom and boasting about it to their flustered husbands immediately afterwards. Suetonius tells the same story about both Augustus and Caligula, but only in Caligula is the same behaviour a sign of monstrosity. 145 Bradley, ‘The Imperial Ideal’ (1991), 3720–30; Baldwin, Suetonius (1983), 338–9. Bradley, ‘Imperial Virtues’ (1976), 249 maintains that for Suetonius, concordia was a virtue for both the emperor and the society.

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how central the administration of justice, either by correspondence or by adjudication on the tribunal, is to being an emperor. The emperors’ qualities as judges are a reflection of their characteristic virtues and vices, but Suetonius is willing to allow apparent inconsistencies and contradictory qualities to colour his descriptions. Otherwise tyrannical characters are capable of acting as conscientious and dutiful judges, but the main qualities of each emperor would be apparent even in adjudication. On the tribunal, Claudius is a weakwilled fool, easily persuaded and unable to make up his mind, while the otherwise industrious and capable Vespasian showed his characteristic greed by accepting bribes from litigants. However, on the general approach to the emperor acting as judge, Suetonius maintains none of the fundamental criticism of Tacitus of the perversion of justice that the imperial influence might lead to. For Suetonius, the centrality of the imperial influence in law was an established fact, as much as or more than it was for Pliny. One probably should not search for the purpose of Suetonius’s Lives of the Caesars. Suetonius was not a political author in the same sense as, for example, Tacitus. His good and bad emperors were examples of a type, and whether he seriously considered that there was an alternative, such as the restoration of the Republic, is doubtful.146 For Suetonius, as it was for his contemporaries, the imperial ideal was an image with a long history, and for them the public and private lives of emperors were equally valuable markers of virtue and vice. Thus, portrayals of sexuality and mores were pertinent in assessing the character and behaviour of the sovereign, just as detailed accounts of the emperor’s appearance were important in poking holes in the idealized presentations on statues, coins, and portraiture that normally were the imperial image.147 The history of the Principate had shown how dangerous the consequences of moral defects or mental issues could be. The balance that Suetonius portrays is the long practice of the Principate, and the exercise of jurisdiction was a crucial component of the good and bad elements of emperors. For Suetonius the biographer, there was no change in the duties and capabilities of the emperors; what he depicted was an unchanging role that its holders 146

Wallace-Hadrill, Suetonius (1983), 110–11. Lewis, ‘Suetonius’ Caesares’ (1991), 3636–7; Bradley, ‘The Imperial Ideal’ (1991), 3726–7. 147

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played for better or for worse. As with ruling in general, the good, diligent judge is countered by the tyrannical autocrat in the administration of law. As with most authors of the Roman Principate, from Seneca, Pliny, Tacitus, and others, the figure of the tyrant emerges as a central feature of the imperial power and its exercise.

HADRIAN AS THE LEGAL EMPEROR How did Hadrian become endowed with a reputation as the legal emperor? Was this a result of his achievements and fame among the ancient Romans or his modern reputation? The issue of the idealization of Hadrian is interesting, because it reveals not only the narratives that were told of Hadrian himself but also the presuppositions behind it, among them the criteria of a good emperor and how they were constructed through narratives. Based on the available sources, there emerges what could be defined as a standard list of Hadrian’s achievements in the field of law:148 1. Industrious adjudication, conducted trials in public; 2. The appointment of a council of noted jurists to assist in jurisdiction and the creation of a number of posts for jurists, both in his administration and as members of his council; 3. Supervision of the judicial work of the consuls and appointment of four consulars to administer justice; 4. Giving the prefect of the city jurisdiction alongside the praetor; 5. The codification of the praetor’s edict; 6. Improving judicial administration by his rescript service; 7. Granting jurists the ius respondendi with strict criteria; 8. Binding judges to follow the unanimous views of jurists; 9. Legislation through the Senate. 148 The authors cited do not necessarily give Hadrian credit for all of the reforms listed below. Honoré, Emperors and Lawyers (1994), 12–16; d’Ors, ‘L’Oeuvre d’Hadrien’ (1965), 147–57; Pringsheim, ‘Reforms of Hadrian’ (1934), 141–53. Similarly Bauman, Lawyers and Politics (1989), 235–315; Torrent, ‘Ordinatio edicti’ (1983); Hübner, ‘Zur Rechtspolitik Kaiser Hadrians’ (1975); Wieacker, ‘Hadrianischen Justizpolitik’ (1935).

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What this list of reforms amounts to in the eyes of later observers was an impressive programme of administrative reform, which created a jurisprudential bureaucracy and ended the practice of free jurisprudence. As most of these reforms are linked with the emperor’s jurisdiction, they are pertinent to the developments followed in this book. Praising Hadrian is hardly anything new. Similar appraisals dot the literature, spanning the time from Gregorovius’ famous biography to the present. As Pringsheim aptly put it, with the reign of Hadrian a new epoch begins in the history of Roman law and administration, and his reforms mark the end of an era in jurisprudence; henceforth, ‘legal science is the emperor’s servant’.149 The idealization of Hadrian was a very typical phenomenon of the late nineteenth and early twentieth centuries, in which Hadrian symbolizes a kind of enlightened imperial ruler that brought a civilizing cosmopolitan influence to his subjects. It has been noted that while the late antique Historia Augusta is quite positive on Hadrian, his reputation during late antiquity was otherwise often controversial. Consequently, when authors like Symmachus or Ammianus discussed ideal emperors, Hadrian did not make the list. Hadrian was apparently too complex a character, demonstrating both immense capability and vices.150 What scholars of the 1930s such as Pringsheim already noted is that Hadrian was an exceptional emperor, but his virtues are nowhere more marked than in the administration of justice. While elsewhere his character may have been contradictory and prone to envy, in the reform of law one finds only a purposeful, conscientious legislator. Hadrian was ‘the first emperor to defend the weak against the strong, the poor against the rich’, qualities which may be ascribed to Stoic philosophical influences.151 Hadrian has been seen as one of the good emperors, and his reign as the apex of a golden age.152 How one came to be included in the canon of good emperors is an interesting question. While the selection of emperors had by this stage evolved into a system of adoption, in reality the process of selection was more often than not a series of complex machinations in which blood was frequently spilled. The 149 150 151 152

Pringsheim, ‘Reforms of Hadrian’ (1934), 141–53. Meckler, ‘Beginning of the Historia Augusta’ (1996), 369. Pringsheim, ‘Reforms of Hadrian’ (1934), 142–3. Of the topic of the golden age, see Schiavone, End of the Past (2000).

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three constituencies of the emperor, the Senate, the urban plebs, and the soldiers, to which one is tempted to add the familia Caesaris, could all contribute in some way to the selection and disposal of an emperor, but were unable to do so without the help of other groups. All of the said groups or constituencies had expectations and a vested interest in what the emperor did and did not do. How well the emperor responded to these expectations was vital to the assessment of whether he would be regarded as a ‘good’ emperor.153 Though all of the groups had various options for voicing their displeasure with the emperor, some more efficiently than others, the power to change the historical memory of the emperor, his image in the eyes of the afterworld, was the privilege of the senatorial aristocracy. The emperors were at this point quite clearly allowed to do as they pleased, not hindered by laws. However, many of those later included in the list of good emperors voluntarily subjected themselves to the laws, or at least strove to abide by them. These emperors understood that freedom from the law came with a heavy responsibility. The good emperor knew what was expected of him and when to subject himself to the laws. Because there was no job description for the emperor, what good emperors did was to emulate what other good emperors had done. Augustus had naturally given some guidelines in the Res gestae, and Pliny’s Panegyric of Trajan was another description of an exemplary emperor. One naturally had to take care of Rome and the empire, but it was also very important to present the necessary imperial virtues of civility. Thus, though the emperor as the father of the fatherland had the right to kill any member of the family at will, this was a right best left unused. It is still something of a mystery why the judge’s seat became the place where people expected to see the emperor.154 The importance of the depictions of good emperors as judges that dominate the works of Seneca, Tacitus, Pliny, and Suetonius is that they reinforced expectations of what the emperor was supposed to do and how he was to act, much like the depictions of the bad emperors. The Romans of the Principate used the idea of a civilized prince to shield themselves against the terrifying image of the total power and

153 Gunderson, ‘E.g. Augustus’ (2014), 133: ‘The emperor does not just aggregate past exemplarity; he corners the market on it in the present.’ See equally Peachin, Rome the Superpower (2006), 127, 145; Norena, Imperial Ideals (2011). 154 The emperor subjecting himself freely to laws was a common trope, as we have seen. Peachin, Rome the Superpower (2006), 147–52.

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raw autocracy that was in the hands of the emperor.155 The fact that emperors misusing their powers were often understood as being mad is thus not to be considered a sign that it was thought they were clinically insane. Instead, what Suetonius and others imply is that the emperor would be mad to act in this way, that these actions were considered so unacceptable as to be worthy of such reproach. The relative omnipotence of the emperor in relation to law was increasingly noted in the narratives of jurists such as Pomponius, who for the first time began to write the history of law.156 Pomponius, in his account of Rome’s constitutional history, wrote that there had been a new development where the power of the state had been entrusted to one man. An emperor had been appointed, and he was given the right to decide on the content of the law: igitur constituto principe datum est ei ius, ut quod constituisset, ratum esset (Dig. 1.2.2.11). An imperial constitution operated, according to Pomponius, on the principle that whatever the emperor decided has the force of law.157 He traced this turn to single rule to the earliest Roman history, as Romulus already legislated on the advice of the curiae, as did his successors.158 The semi-legendary drafting of the Twelve Tables also involved giving the decemviri sovereign power in Rome for a year.159 The fundamental principle in Pomponius’ account was the conditionality of the sovereign power, as it was, by legal fiction, derivable from the constitutive power of the people. If we look at the writings of the jurists, the idea that the will of the emperor had the force of law and that the emperor decided what the law was had been settled by this time.160 An influential theory prescribes this change to have taken place only under Hadrian. Henceforth, in Pomponius, Gaius, and Ulpian, the view becomes dominant that whatever the emperor has decided has the force of law. Whatever form this took did not matter, as long as it was clear that the emperor meant it to have general significance.161 For the 155 Peachin, Rome the Superpower (2006), 91–2; Wallace-Hadrill, ‘Civilis princeps’ (1982). 156 Nörr, ‘Pomponius’ (1976). 157 Dig. 1.2.2.12 principalis constitutio, id est ut quod ipse princeps constituit pro lege servetur. 158 159 160 Dig. 1.2.2.2. Dig. 1.2.2.4. Dig. 1.2.2.12–13. 161 Gai. Inst. 1.5 Constitutio principis est, quod imperator decreto uel edicto uel epistula constituit. nec umquam dubitatum est, quin id legis uicem optineat, cum ipse imperator per legem imperium accipiat. Honoré, Emperors and Lawyers (1994), 12.

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jurists, the law emanated from the emperor, but the emperor was dependent on the ultimate approval of the people. Just as the elite historians were in a privileged position to formulate the powers and tasks of the emperors through narrative depictions of their reigns, so the jurists could exercise a similar censorship on the acts of the emperors, either letting them be forgotten or actively rejecting them. The idea of exemplarity as a normative force meant that the narratives about the good emperors were normative statements about what the emperor should or could do. As we have seen, Hadrian is the first emperor whose constitutions survive in greater numbers. There are constitutions, rescripts, and decisions, as well as a fraction of a speech and quotations from a senatusconsultum done under his authority. Several constitutions by Hadrian have been preserved in quotations by later emperors and legal authors. In AD 197 Antoninus referred to Hadrian’s constitution on legacies.162 In 223 Alexander quotes a constitution by Hadrian regarding forcing female slaves into prostitution.163 Legal policy could also be published in a speech; for example, Hadrian outlined a problem of inheritance rules in a speech to the Senate, asking them to decide.164 On another issue of inheritance, Hadrian’s response to a petition led the consuls to propose a resolution for the Senate to make.165 While in his rescripts Hadrian laid the groundwork for the imperial adjudication as a vehicle for legal development, much of his administrative reforms were aimed at organizing and delegating the task of adjudication. Hadrian’s most influential legislative project was the Perpetual Edict, the compilation of the praetor’s edict by the jurist Salvius Julianus.166 Hadrian’s relationship with jurists has been seen as close, because he had given jurists a prominent role in his administration. Whether Hadrian actually abolished the ius publice respondendi is controversial, but it is clear that he valued legal learning.167 The legal overtones of Hadrian’s imperial propaganda as manifested in coinage are an important indicator of the centrality of justice in his self-image as a ruler.168 162

163 Cod. Iust. 7.4.2. Cod. Iust. 4.56.1. 165 Dig. 5.3.22 Dispicite, patres conscripti . . . Dig. 5.3.20.6d. 166 On the edict and Salvius Julianus, see Lenel, Das Edictum Perpetuum (1956 [1927]); Bund, ‘Salvius Iulianus’ (1976); Guarino, ‘Formazione dell’editto’ (1980); Mantovani, ‘L’Edit comme code’ (2000); Tuori, ‘Hadrian’s Perpetual Edict’ (2006). 167 Vacca, ‘La “svolta adrianea” ’ (1997), 447; Daube, ‘Hadrian’s Rescript’ (1950). 168 Vogt, ‘Hadrians Justizpolitik’ (1951). 164

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For the jurists, there are clear signs that involvement with the emperors begins to form a more integral part of the profession. The Enchiridion of Pomponius follows the history of the legal profession up to the age of Hadrian, and the wording of the text (Hadrian is named as optimus princeps, meaning that he was ruling at the time) makes it likely that it was written during his reign. Salvius Julianus was the last name mentioned on the extensive list of famous jurists. Despite the attention to jurists, the text clearly reflects the sovereignty of the emperor in law. While the text of Pomponius is about the jurists, their close connection with emperors is evident in both the discussions of the histories of the ius respondendi and the figures of Capito and Labeo, both narratives embracing the close connection of the emperors and lawyers as well as the need for lawyers to demonstrate their independence from the imperial power.169

CONCLUSIONS The processes of petitioning and appealing to the emperor, both in lawsuits pending or finished, and seeking rescripts and other help from the emperor became a central feature of the interaction between the emperor and the people during the Antonine period, a development that even left its mark on the narratives about imperial jurisdiction. While much of the earlier narrative tradition had focused on gaining access to the emperor and having his ruling, the libellus procedure where one could write to the emperor and the emperor would answer changed the dynamics of petitioning considerably. As the praise of Aelius Aristides demonstrates, the very idea of imperial justice from afar was revolutionary. Though Aristides’ praise should be taken with a grain of salt, as it was written by a provincial seeking imperial patronage, the fact that he took the time to shower the emperor with praise on this detail shows the wonder that the libellus process of rescripts elicited. It appeared simply unfathomable, a matter of science-fiction, that the emperor would answer these queries and that his orders would be executed.

169

Dig. 1.2.2.11, 1.2.2.47–9.

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What we know of the development is that the number of imperial rescripts as well as decisions in written sources and inscriptions begins to grow rapidly after the accession of Hadrian. In many of the decisions, Hadrian and his successors appear to underline the humanity of imperial justice and the tendency to support the weaker party. Despite this idealistic streak, the vast majority of rescripts and decisions by the emperors are mundane legal solutions, for the most part containing a reference to local judges, such as provincial governors, investigating the matter. While the praise of the system of imperial governance is one of a high-minded crusade for justice, the formalization of the process equally meant its bureaucratization. Despite this, there are two narrative traits in the case-load of imperial adjudication: the upholding of peace through mediation, especially among the provincial elite, and the concern that the emperors show to their provincial subjects. In modern literature Hadrian has been idealized as the legal emperor, who brought justice to his adjudication as well as reforming the administration of law. While the first of these achievements is a reflection of the positive reading of his judgments as well as his ideals, the second contains more modern conjecture. However, it is evident that Hadrian formalized the administration of law and the position of jurists. What the idealization of Hadrian mostly demonstrates is the narrative foundation of the so-called good emperors, a conglomeration of the narratives about the exemplary behaviour of the emperor. This gave an advantage to jurists who developed the conjecture that the emperor’s word was law, as it was they who were able to decide which of the emperor’s rulings and opinions would be considered law. As the historians were able to dictate who were good and bad emperors, so the lawyers dictated whose words would live in posterity. For historians and lawyers, the reign of Hadrian brought the writings of Suetonius and Pomponius, both of which cemented the idea of the emperor as judge and lawgiver. Suetonius, an imperial official under Hadrian, and Pomponius, a jurist, both relied on the idea of exemplarity, where praise and criticism were used to separate acceptable from unacceptable behaviour. They were, in a way, writing the job description of an emperor. Neither was primarily a historian, but their depiction of the past contained a strong normative character, where the law was portrayed as a central preoccupation of the emperor.

5 Caracalla, the Severans, and the Legal Interest of Emperors INTRODUCTION The death of Commodus in AD 192 and the civil war between contenders to the throne might not represent an ending of an era similar to the extinction of the Julio-Claudian dynasty, but it proved to be a crisis of considerable proportions for the imperial administration. Not only was the throne vacated after a long period of instability, but the contesting claimants to the throne began a civil war that lasted for several years, until Septimius Severus finally defeated his erstwhile ally Albinus in 197. What the years of mayhem demonstrated was the vulnerability of a system of governance that was centred on the person of the emperor.1 If the earlier literature on the Roman emperor as a ruler and as a judge was concentrated on the way the virtues of the emperor ensured that justice was delivered to the people and the reign was enlightened and beneficial, the issues now became more pragmatic. What if there were not just one supernaturally good emperor, but several less than supernaturally good emperors trying to kill each other? The purpose of this chapter is to examine the different forms in which the imperial adjudication took place during the Severan era, and how they were reflected in the narratives. Especially important is the multiplicity of narratives and the portrayal of imperial adjudication, evident in the rescripts, inscriptions, and historiography of the era. 1 On the rise of Severus and the reforms it led to in the role of the emperor, see Lichtenberger, Severus Pius Augustus (2011); Cooley, ‘Septimius Severus’ (2007); Birley, Septimius Severus (1999); McCann, Portraits of Septimius Severus (1968).

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I shall be exploring both the evolving practices of the expanding imperial adjudication as well as the way that those practices appeared to subjects and how they took advantage of them. The reforms begun by Hadrian and consolidated by his successors meant that the imperial agency in law was systematized and supported by an apparatus that may be described as a bureaucracy.2 Despite this, the emperor was ever more central to the system and his justice was sought by the populace with increasing alacrity. We shall begin with two case studies of adjudication by Caracalla: the first a blunt decision regarding the payment of taxes made in Alexandria, preserved on papyrus; the second an inscription detailing the minutes of a trial presided over by Caracalla regarding a local priesthood in a small town in Syria. They are used to illustrate the different forms of imperial adjudication, with different audiences and purposes. Imperial adjudication could be a spectacle of justice, but also a routine reinforcement of a rule. In the second section I will examine the different uses and practices of imperial rescripts, ranging from responses to petitions to vehicles of legal development. While the principle that the emperor was the law had been established earlier, the motivations for petitions and rescripts and the rhetorical strategies involved could vary dramatically for the petitioners and the emperors. I shall also follow the developments of jurisdictional policies through the reigns of Septimius Severus, Caracalla, Macrinus, Elagabalus, and Severus Alexander, among others, as well as the figures who influenced the development of these practices, such as Julia Domna and the jurists in imperial service. In the third section I will turn to Cassius Dio, a senatorial historian active during much of the Severan period, whose writings have been essential in the formulation of our understanding of imperial adjudication. Hailing from the Greek East, Dio saw the Principate as a monarchy that was dangerously dependent on the person of the emperor, his competence and morality. His eyewitness account shows how much imperial adjudication was a central part of the emperor’s duties, but also how imperial instability and paranoia could wreak havoc through the same instrument of jurisdiction in the form of purges and persecutions. In the final section I will look at the writings of Ulpian, a 2 The idea of legal bureaucracy is strong in influential works like Coriat, Prince législateur (1997); Honoré, Emperors and Lawyers (1994) as well as recent studies such as Connolly, Lives behind the Laws (2010); Dillon, Justice of Constantine (2012).

Caracalla, the Severans, and the Legal Interest of Emperors 243 jurist, an imperial functionary, and finally, a praetorian prefect, on the emperor’s unrestricted power and his will as law. What Ulpian does in his influential account is to juxtapose the positivism of imperial power over law to the ethical demands of justice and present the implications it had for imperial adjudication. With the expansion of the imperial rescript practice, the dramatic settings of the process of petition and response become more evident. Either by design or by convention, emperors and their entourages began to modify their rhetoric towards different audiences. As will be demonstrated, the individuals and communities that appealed to the emperors used different rhetorical strategies in their demands for imperial attention and justice. The chief strategy was clearly to appeal to the idea of a good king who rights wrongs and brings justice, the ruler as living law. From the cases it becomes clear that the emperors utilized this idea in their stage-setting and dramatic references. As Connolly has suggested, petitioning rulers was a near-universal feature in the ancient world and figured heavily in all interactions between ruler and the ruled: ‘Many petitions to rulers have the structure of a prayer: they call on the mercy and justice of the ruler and promise loyalty in return for help.’3 What is noteworthy is that during this period the role of jurists begins to make an impact on how imperial justice is forming. Imperial pronouncements, while they had even earlier been considered to have the force of law, began to be seen as a primary source of law. In this process, lawyers and legal writing were essential components, as they were the medium through which the legally relevant imperial rescripts and decreta became known beyond their immediate recipients and how the legally relevant parts of the rescripts were recognized. While the stereotypical formulations of this history have posited emperors and jurists as opposing forces, what emerges from the sources is an image of cooperation between the two.4 The historical sources of the period are patchy: for the earlier part the narrative of Dio is available, but we rely on late antique historians 3 Connolly, Lives behind the Laws (2010), 2, 33. On the process of petitioning, see Kelly, Petitions (2011); Bryen, Violence (2013). Harries, Law and Empire (1999), elaborates how this development continued during late antiquity. 4 The way that emperors and lawyers interacted has been a source of much debate, where influential works like Kunkel, Römischen Juristen (2001); Honoré, Emperors and Lawyers (1994); Bauman, Lawyers and Politics (1989) have stressed the importance of jurists.

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and epitomers such as Xiphilinus on Dio for the later period. On the practice of imperial adjudication, the epigraphical and papyrological material is expanding, with numerous sources from the reigns of certain emperors. Perhaps due to the selection of material, the relevant passages in Justinian’s Code begin to be more and more voluminous.

THE APPROACHABILITY OF CARACALLA The different audiences that imperial adjudication was aimed at are evident in the concrete cases. The aim of this section is to juxtapose the different settings of imperial adjudication and the creation process of narratives resulting from these actions. This discussion compares two documents from the reign of Caracalla, a papyrus from Egypt and an inscription from Syria, and illustrates the expectations placed on the emperors and how they dealt with them in practice. The first case is one of extreme sparseness and simplicity but with tremendous potential implications, while the second involves elaborate stage-setting and drama but had only a local impact. What is important is the narrative image produced by the different settings, on the one hand that of a strict bureaucrat, on the other, that of a benevolent good king. During the winter of AD 200 the emperors Septimius Severus and Caracalla visited Egypt, and while in Alexandria they answered a number of petitions over the course of three days. One of the answers was a response to a petition of Dioscorus, son of Hephaestion, and to Pieseis, son of Osiris, and others. The response, in its entirety, was: We have forbidden you to pay money in place of grain. [Διοσκόρῳ Ἡφαιστίωνος καὶ Πιεσῆϊ Ὀσίριος καὶ ἄλλοις.] ἀργύριον ἀντὶ πυροῦ καταβάλλειν ὑμᾶς ἐκω λύσαμεν[.] 5 5 P.Columbia 123, 10; Westermann and Schiller, Apokrimata (1954), 81. There is an extensive literature on P.Columbia 123, but virtually none of it has delved into this particular section. For the older literature and another translation, see Oliver, Greek Constitutions (1989), 451–8. See also Katzoff, ‘Use of P.Col. 123’ (1981); Youtie and Schiller, ‘Second Thoughts on the Columbia Apokrimata’ (1955); Pringsheim, ‘Suggestions on P. Col. 123’ (1956); David, ‘Ein Beitrag zu P. Col. 123, 13–17’ (1956); Coriat, Prince législateur (1997), 190, 588; Haensch, ‘Apokrimata und Authentica’

Caracalla, the Severans, and the Legal Interest of Emperors 245 Because Caracalla had been made Augustus only a year earlier, at the age of 13, the momentous decision may be attributed mainly to Severus. The response, along with twelve other similar answers, called apokrimata,6 was posted on the Stoa of the Gymnasium of Alexandria. The petitions that they answer have not been preserved. This is unusual, since normally in papyrological sources the petitions have survived while the answers have not, because they were written as subscripts to the original petition and handed to the magistrates responsible for implementing them. When copies were made, they were normally of the entire petition and response. Such petitions were presented not only to the emperor; they were, in most instances, addressed to the governor, the prefect or the procurators. In Egypt, in the surviving eighty petitions addressed to the epistrategos, the subscript has survived in only twenty cases.7 What the purpose of a text containing just the imperial response is thus remains unclear, with some arguing that the text was copied as an example of imperial writing.8 Most of the other twelve subscripts were equally curt, to Artemidorus (no. 2) the response was simply: ‘It is late to complain about the decision once you have agreed with the findings’,9 while another recipient (no. 4) was just told: ‘Obey the findings.’10 The answer to the query is significant because the subject-matter is relatively trivial. As early commentators suggested, the original queries were most likely simply requests to pay taxes in money instead of grain.11 It should be noted that there were many petitioners with the same question, and thus perhaps it was not a trifling matter. The underlying factor behind the petitions was probably the sub-market price that was paid for the tax-grain collected in Egypt. Prices were set by the government, and in the third century it was often roughly (2007), 215–18. While most scholars accept that apokrimata were subscriptions, Turpin, ‘Imperial Subscriptions’ (1991), 107 maintains that they were in fact decreta, decisions made in oral proceedings. 6 On the apokrimata generally, with ample reference to newer literature, see Haensch, ‘Apokrimata und Authentica’ (2007). 7 Thomas, ‘Petitions’ (1983), 370–1. 8 Westermann and Schiller, Apokrimata (1954), 99. 9 τοις εγνωσμενοις συνκαταθεμενος βραδεως μεμφη τα δοξαντα. Westermann and Schiller, Apokrimata (1954), 54. 10 τοις εγνωσμενοις πιθεσθαι. Westermann and Schiller, Apokrimata (1954), 56. 11 Westermann and Schiller, Apokrimata (1954), 81. Oliver, Greek Constitutions (1989), 458 maintains that the administration overvalued the denarius that the grain was compensated. The result is the same.

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30 per cent lower than the market price. As the price of grain fluctuated seasonally, being lowest after harvest and highest just before it, the official setting of the price, sometimes as low as 40 per cent below the post-harvest market rate, meant that the possibility of paying the tax in money would have been a potential windfall to the farmers. Because the Egyptian grain supply was of such vital importance to the feeding of the empire, it would have been strange if the emperor had acquiesced to the demands. We know that Egyptian grain was vital for both Rome and the other great cities of the empire and access to it and its prices were very much controlled, there being no free market. Most of the grain was collected by the grain tax, which was 10 per cent on private land and 30–40 per cent on public land, but grain was also bought in large quantities.12 The amazing component is thus not that such a query was made, nor the answer. It is the fact that the emperor answered the question at all. The absolute rulers of the Roman Empire arrive in the most important province of the empire and spend days dealing with issues that could have been satisfactorily answered by a simple clerk. Many petitions to lower officials were in fact handled quite summarily, as is witnessed by the fact that a governor of Egypt could boast that he handled 1,804 cases in three days.13 The fact that emperors used up a relatively large amount of time answering trivial queries is fundamental to the ruling of the empire, because it not only advertised their approachability and concern for their subjects, but was also a vital channel of communication for both citizens and imperial functionaries. We have, of course, no way of knowing how the thirteen petitions ended up being answered by the emperor—in short, what separated them from the thousands that were summarily resolved. In fact, we do not even know how summarily they were dealt with—for example, were there discussions leading to the resolution? It has been suggested that these petitions would have normally been answered by the governor, but now the task of resolving them fell upon the

12 Erdkamp, Grain Market in the Roman Empire (2009). See also Duncan-Jones, ‘Price of Wheat in Roman Egypt’ (1976), 242; Rathbone, ‘Prices and Price Formation’ (1997); Rathbone, ‘Roman Egypt’ (2007). On the impact of the collection and transport of the tax grain, see Adams, Land Transport in Roman Egypt (2007). 13 The reference to the 1,804 petitions handled in three days is from P.Yale 61, a Severan text. On the governor’s duties in meting out justice, see Meyer, ‘The Justice of the Roman Governor’ (2006).

Caracalla, the Severans, and the Legal Interest of Emperors 247 emperors and with them, the imperial chancellery that accompanied them.14 The orthodoxy on the Severan period sees the rescript system as the monarchic part of the imperial government, in which the emperor resembled the oriental Hellenistic conception of a king as a judge who is always just. The emperor as judge and legislator had both the right and the obligation to interpret and modify the law and to be accessible to his subjects and to give them equitable justice.15 The emperor was the source of law.16 However, the present example fits poorly with this idea in some respects. The emperor here is nothing but a bureaucrat, an unfriendly character familiar from your local tax office. Likewise, the results of the petition were posted on cheap papyrus on the wall with other similar rescripts, in an unceremonially bureaucratic fashion. What the emperors simply and decisively emphasize is that this is a longstanding practice that they have dealt with before, and have no reason to revisit it or change. From the fact that there were a number of petitioners, it is possible to suggest that there might have been many similar petitions that were thus resolved. The apokrimata text was something called a subscript, the response of the emperor to a query or petition. As opposed to epistulae (letters from magistrates, or highly ranked individuals or communities), responses to the libelli (petitions from individuals) were simply posted by the emperor’s residence and not sent to their recipients. A number of these texts have been preserved among the Egyptian papyri, surprisingly many of them dating to the period of Severus’ and Caracalla’s visit in 199/200. It has been argued that this could mean that the imperial presence meant that an unusual number of locals could have had their petitions answered. What the thirteen subscripts on a single papyrus have in common is probably just their dating; they represent subscripts from three consecutive days, and their subject-matters are quite disparate. While some have suggested that the answers were only those that had a value as a legal precedent, this explanation has been quite decisively rejected. What is the most 14

Westermann and Schiller, Apokrimata (1954), 46. Coriat, ‘Technique législative’ (1990), 222. 16 Coriat, Prince législateur (1997), 657, 662. Of course, laws and senatusconsulta were still relevant, but they originated from the imperial source as well (such as speeches in the Senate). This indeterminacy was already outlined by Orestano, Potere normativo (1962), 19–22. 15

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probable explanation is that they were simply a copy of the answers in the liber libellorum rescriptorum for three days.17 What this meant was that the emperors would have sat answering petitions from the local population, settling criminal, civil, and administrative matters in an indiscriminate manner. When compared with the extensive material provided by the imperial rescripts in general, especially those addressed to communities, it is easy to see how much more the imperial authors were prepared to write in the form of courtesy and greetings, demonstrating that the act of writing an imperial letter was in and by itself a benefaction worthy of notice. While the apokrimata are laconic in the extreme, other papyri record the minutes of the meetings in which these petitions were presented to emperors. The elaborate details in which these texts presented the imperial hearings suggest that they were most likely intended to emphasize imperial attention, not purely the legal decisions.18 One may argue that there were two aims for these texts: first, the purely bureaucratic meaning of responding to the issue at hand; and second, to demonstrate the imperial favour and attention of receiving a response from the emperor personally, even an audience with him. The other example of imperial decision-making from petitions is the so-called Goharian inscription (SEG XVII 759),19 which gives the transcript of the meeting in Antioch in 216 between Caracalla and his entourage and an embassy from the village of Goharia, which had travelled some 200 miles to meet the emperor to get his ruling on a dispute regarding a local priesthood. The emperor sat in the auditorium, flanked by the praetorian prefects, the amici, and the principes officiorum. It is evident from the wording that Caracalla had taken the case under consideration as a private favour, and a trial of sorts is 17 Williams, ‘Libellus’ (1974), 87–92; Westermann and Schiller, Apokrimata (1954), 39–40, 99; Youtie and Schiller, ‘Second Thoughts on the Columbia Apokrimata’ (1955), 345. On the history of interpretations up to Wilcken, see Westermann and Schiller, Apokrimata (1954), 40–1. The texts dating from the visit to Alexandria are collected in Oliver, Greek Constitutions (1989), nn. 220–43, but see also Papathomas, ‘Reskript’ (2000); Haensch, ‘Apokrimata und Authentica’ (2007), 226–33. The texts were referred to even much later, see the example of the Michigan-Berlin Apokrima in Lewis, ‘Michigan-Berlin Apokrima’ (1976). 18 Crook, Legal Advocacy (1995), 55; Harker, Loyalty and Dissidence (2008), 64–5. 19 There is a considerable literature on this inscription; see e.g. Kunkel, ‘Prozess der Gohariener’ (1953); Lewis, ‘Cognitio Caracallae der Goharienis’ (1968); Crook, Legal Advocacy (1995), 91–5; Magioncalda, ‘Processo di fronte a Caracalla’ (1999); Stolte, ‘Jurisdiction and Representation of Power’ (2003); Wankerl, Appello (2009), 203–26.

Caracalla, the Severans, and the Legal Interest of Emperors 249 arranged there and then to settle the case. The advocates pleading for the parties are actually members of the emperor’s consilium. The proceedings of the case were later inscribed in stone by the villagers and set up prominently at the temple of Dmeir for posterity, but unfortunately only the first part of the inscription is preserved.20 What can be deduced from the inscription is that the matter at hand was a dispute over who is the rightful priest of Zeus at the temple of Dmeir. The current holder, the contractor Avidius Hadrianus, was being sued by Aurelius Carzaeus, son of Sergius, who represented the people from Goharia. Avidius Hadrianus was represented by his advocate Julianus Aristaenetus, while the case of the Goharians was presented by the advocate Egnatius Lollianus. The main claim of the Goharians was that Avidius Hadrianus had unduly elevated himself to be the priest of Zeus and enjoyed the privileges of the office, including exemption from taxation and liturgies and precedence, not to mention the chance of wearing a golden crown and sceptre. The defence argued that the case had no business being discussed here because there was no preceding action before the lower courts: Of these, Aristaenetus said: ‘I object.’ Lollianus said: ‘You [Caracalla] ordered the cognitio to take place.’ Aristaenetus said: ‘Cases on appeal are determined by law. Either the governor accepts the appeal and it comes before your tribunal, or, if he has not accepted it, how can the case be brought before you? After many hearings and decisions, you were approached with petitions by the villagers of Goharia. A man who was neither an advocatus nor an ambassador, but only a private person, entered a petition that you should be the judge rather than the governor. And you said to him: “If you wish me to hear [the case], I will hear it.” We have protested against this from the beginning, and now, when we proceed by the rules of the court, we object to the suit because they have no right to appeal, nor can have access to your tribunal.’ ex quibus Aristaenetus dixit: παραγράφομαι. Lollianus d(ixit): ταγῆναι ἐκέλευσες τήν διάγνωσιν. Aristaenetus d(ixit): αἱ ἔκκλητοι νόμῳ γείνονται. ἥ λαμβάνει τὴν ἔκκλητον ὁ ἡγεμὼν καὶ εἰσέρχεταί σου εἰς τὸ δικαστήριον, ἥ μὴ δεξαμένου τοῦ ἡγεμόνος πῶς εἰσαγώγιμός ἐστιν ἡ 20 Millar, Emperor (1992 [1977]), 535–6; Stolte, ‘Jurisdiction and Representation of Power’ (2003). On the identity of the advocates, see Kunkel, ‘Prozess der Gohariener’ (1953).

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δίκη; μετὰ πολλὰς κρίσεις καὶ ἀποφάσεις σὺ ἐνετεύχθης ἐν [ταῖ]ς ἀξιώσεσιν τῶν [ο] Γοα[ριην]ῶν. οὔτε σύνδικος οὔ⟨τε πρεσβευτής, ἄνθρωπος ἀντίδικος ἰδι]ωτικὸς ὢν εἰσήγ⟨αγεν ἔντευξιν ὥστε σὲ δικαστὴν ἀντὶ ἡγεμόν[ος εἶναι. σὺ [δ]ὲ ε[ἶπες αὐτ]ῶ “εἰ βούλεσθε ἀκοῦσαί με, ἀκούσομαι”. [ἡμεῖς ἐξ ἀρχῆς τοῖσ]δε ἀ[ν]τιλέγοντ[ες], νῦν, ὁπότε εἰσήειμεν νόμῳ δικαστηρίου. [παραγραφόμεθα τὴν δίκη]ν, ὅτι οὔτε ἔκκλητον ἔχουσιν οὔτε ἔχειν δύνανται πρὸς [τὸ δικαστήριόν σου.21

It was of utmost importance that the emperor was the final arbiter of law, and with determination one could reach him. In the case of the Goharieni, the emperor admitted them to present their case even though it was highly unusual, against the rules of procedure, and he resolved the case in their favour to let justice prevail over law. He was thus making a representation of his power and demonstrating that he is the ultimate authority:22 [Antoninus] Augustus said: ‘You say then that he has not made an appeal?’ Aristaenetus said ‘They do not have a case on appeal, because it was not allowed.’ Antoninus Augustus said: ‘Look, let me speak according to my own view even in this matter. He has not made an appeal, he did not put in a complaint, and this matter was not spoken of before the governor. “I complain about you before the emperor,” he says. Don’t you wish me to hear the case?’ Aristaenetus said: ‘Of course.’ Antoninus Augustus said: ‘If I were in a hurry to get away from here I would say “The objection is allowed.” In what, then, am I criticized?’ Lollianus said: ‘I will speak for under half an hour.’ And he added: ‘This dispute is about piety, and to the peasants as to yourself there is nothing more important than piety. Hence they have confidence in the matter, engaging in a case before a most pious king and judge.’ [Antoninus A]ug. d(ixit): Λέγεις οὖν ὅτι οὐκ ἐξεκαλέσατο; Aristaenetus d(ixit): [Οὐκ ἔχουσιν] ἔκκλητον, ὅτι οὐκ ἐξῆν. Antoninus Aug. d(ixit): Ἰδὲ οὖν, ἵνα ἐγὼ τῇ ἐμαυτοῦ γνώμῃ τι εἰπῶ καὶ ἐν τούτῳ τῷ [πρ]άγματι. οὔτε ἐξεκαλέσατο, οὔτε ἐμέμψατο, οὔτε τὸ πρᾶγμα τοῦτο ἐλέχθη παρὰ τῷ

21 SEG XVII 759, ll. 7–17. Translation is adopted with slight modifications from Stolte, ‘Jurisdiction and Representation of Power’ (2003), 263–5. 22 Stolte, ‘Jurisdiction and Representation of Power’ (2003), 262, 268. A similar suggestion is made by Williams, ‘Libellus’ (1974), 97 and Hauken, Petition and Response (1998), i.

Caracalla, the Severans, and the Legal Interest of Emperors 251 ἡγουμένῳ· ἐπὶ τοῦ αὐτοκράτορος μέμφομαί σε, φησ[ί]ν; οὐ θέλις ἐμὲ ἀκοῦσαι τοῦ πράγματος; Aristaenetus d(ixit): Λέγω. Antoninus Aug. d(ixit): Ἐγὼ εἰ ἔσπευδον ἐντεῦθεν ἀναστῆν[αι], ἔλεγον ‘ “Η παραγραφὴ _ τίσιν οὖν μέμφομαι; Lollianus d(ixit): Λέγω ἐντὸς ἡμιχώραν ἔχει”. ἐν σείας. E[t sub]iunxit: Ὁ μὲν ἀγὼν ὑπὲρ εὐσεβείας τοῖς [μὲν γ]εωργοῖς, σοὶ δὲ πρεσβύτερον εὐσεβείας οὐδέν. τὦρα οὖν θαρρο[ῦ]σιν, ἐπὶ τοῦ παρόντος ἀγωνιζόμενοι παρὰ εὐσεβεστάτῳ βασιλεῖ καὶ δικαστῇ. Διὸς ἱερὸν ἐπιφανές ἐστιν παρ’ αὐτοῖς· ἀμέλει παρὰ τῶν περιχώρων ἁπάντων ω.ει.η θεωρεῖται · βαδίζουσιν αὐτόσσε καὶ πομ[π]ὰς Πέμπονται. τοῦ ἀντιδίκου τοῦτο πρῶτον ἀδίκημα.23

The case of the Goharians contains all the mythogenetical elements of the benefits of a virtuous tyrant or a great king. The lowly villagers make a lengthy journey to meet the emperor, a trip that they, with some probability, know is a long shot: catching up with and gaining an audience from an itinerant emperor must have taken considerable luck, effort, or both. When they finally meet the emperor, he takes on the case despite the formal objection to the contrary, and presents his virtuous justice to the people by righting wrongs. The actions of the emperor are those of a good king in the eyes of those in favour of his neglect of the rules of procedure, but one wonders whether to the lawyers, and especially the priest who was undoubtedly on the losing end of this suit, he would have appeared as the bad tyrant acting on a whim and corrupting the course of due process. Because the imperial cognition was fairly flexible and not bound by rules, due process was of course a flexible term, but nevertheless there was an expectation that the emperor would adhere to tradition and precedent in proceedings. The case of the Gohanians is strange, to say the least. Some have even gone as far as to suggest that the trial was simply a charade, an act set up to amuse the emperor, with the Goharian villagers serving as some sort of props. While it is clear that Caracalla is in a good mood and looking forward to the trial, it is equally true that the advocates are presenting arguments for the dismissal of the whole trial on the grounds of a technicality. The impression one gets is that a petition has been made and the emperor is willing to settle matters once and for all, but is making sure that each side has competent representation. The quarrelling Goharians are thus appointed lawyers that would have normally been beyond their reach, and the issue is 23

ll. 24–41.

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resolved.24 The emperor made an exception, as was his right and, by some standards, as was expected of him.25 What, then, makes the Roman example unique is that we have not only the Goharians, the examples of the magnanimous sovereign behaving as he should, but we also have the instances when the very same emperor is behaving like a petty bureaucrat, telling the little people that they have to pay their taxes. The emperor of the apokrimata is quite distinctly petty: there are no softenings or rhetorical flourishes, no attempt is made to appease or to appear as a good king who is on the side of his subjects. For what it’s worth, out of the thirteen subscripts no less than five are negative (without knowing the requests, one cannot judge many of them). What both of these examples leave unanswered is how the provincial petitioners, perhaps without wealth or connections, were able to get their cases heard by the emperor. Ever since Wilcken, there has been looming a fairly idealistic image of provincial governors forwarding the petitions of provincials to the emperor and posting his responses at the provincial capital.26 Could one imagine that when the emperor was actually present, as in the case of the apokrimata, he would have simply answered the petitions there and then? Or was this purely an exception that the emperors answered, whereas normally such petitions were answered by the governor on behalf of the emperor? In the case of the Goharians, there is a similar amount of incredulity at play. The lowly villagers went to see the emperor and were admitted to present their case. Because in nearly all larger organizations there are strict controls of access to the person making decisions (out of pure necessity, to prevent petitioners and supplicants from commandeering most of his or her time), gaining an audience with the emperor must have been a complicated affair. How would one be able to present a case, either in writing or in person, to the emperor? In most comparable organizations there were persons guarding access that needed to be convinced (or bribed), either through appeals or through highly placed contacts. One does not need to underline the enormous campaign donations or bribes that are necessary for gaining an audience with the leaders of modern states, because being admitted to the morning salutatio of a Roman 24 25 26

Crook, Legal Advocacy (1995), 94–5. Kunkel, ‘Prozess der Gohariener’ (1953), 265. Wilcken, ‘Kaiserreskripten’ (1920), 23; Williams, ‘Libellus’ (1974), 93–4.

Caracalla, the Severans, and the Legal Interest of Emperors 253 nobleman could be an equally harrowing experience.27 This makes it all the more understandable why the villagers of Goharia decided to publish the minutes of their hour of imperial glory in full. Not only was their issue resolved, but they were able to gain access to the leader of the Roman world and could now show that they were under the protection of the emperor.28

RESCRIPTS AND THE IMPERSONAL RESPONSIBILITY The fact that Roman emperors from Hadrian onwards dedicated much of their time to answering petitions has a vital impact on the influence that emperors had in the legal field, due to the fact that those replies, when containing a general rule, were considered a source of law (Gai. Inst. 1.5). In later legal texts there are even provisions on the way a petition to the emperor could start a legal proceeding.29 The aim of this section is to explore the mechanisms through which the emperor carried out his jurisdiction and how that contributed to the different images of the emperor and the starkly different narratives that are apparent in the sources. What is apparent is how different practices led to different rhetorical strategies, and while the ideological preoccupations regarding petitioning were not much different, the element of human contact and face-to-face interaction were crucial in shaping these strategies and approaches. Thus we will see how the narrative forms also varied, with petitioners seeking to present the emperor as omnipotent and godlike and themselves as lowly, weak, and virtuous, while the emperor’s self-presentation varied from intensely emphatic and understanding to blunt, depending on the level of human contact. With this in mind, we will observe how the practice of answering petitions corresponded to the theories of how the emperor worked. 27 Goldbeck, Salutationes (2010). For example, it was widely reported in 2010 that when an Ikea executive in Russia sought an appointment with the president to discuss corruption and legal obstacles, he was told that such a meeting would cost between $5 to $10 million. Dawisha, Cleptocracy (2014), 11. 28 Stolte, ‘Jurisdiction and Representation of Power’ (2003), 267. 29 Cod. Iust. 9.41.3 was a rule stemming from a utterance of Caracalla during a cognition. Cod. Theod. 1.2.9; Cod. Iust. 1.20.1; Turpin, ‘Imperial Subscriptions’ (1991), 107. The Codex Theodosianus was concerned about rescripts acquired through deceit (11.4).

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The way that petitioning worked is still very much a hypothesis based on papyri, inscriptions and the numerous rescripts known from legal sources. This hypothesis has been supported by what has been discovered in Egypt about the voluminous practice of petitioning everyone from the local magistrates to the governor.30 In theory at least, it would appear that everyone could petition the emperor about everything, as long as they delivered the petition to the emperor personally in the form of a libellus. The use of letters (epistula) for approaching the emperor was restricted mostly to officials and communities. The answers to libelli were called subscriptiones. In the legal language, both types of imperial responses are called rescripts. The answers to petitions are very short and to the point, containing, for example, no greeting, whereas rescripts to letters were in letter format. There has been some controversy over the procedure, but it is generally believed that the subscriptiones were published by posting them either in Rome or wherever the petitioner approached the emperor (marked by the letters PP for propositio), that is, the imperial residence. Imperial legal rescripts are known from legal sources such as the Digest and the Codex, but also from a number of other sources. The most important are inscriptions and papyri. The rescripts in the legal sources are usually very short and pertain to the legal issue at hand, due to the fact that the even if the text was longer, Justinian’s editors would have removed the extraneous material. The petitioner and the larger issue in the petition are rarely known in detail, and often one has only the petition or the response but rarely both. On the other hand, rescripts known from inscriptions do in some cases contain both the libellus and the imperial subscription, and possibly other correspondence from officials such as a provincial governor. It should be remembered that the fact that the recipients of rescripts went through the time and expense of having a rescript inscribed in stone and positioned in a public place suggests that the rescript was considered important in protecting their interests and social status. Subscripts preserved in papyri are closer to documentary form, being most likely copies of originals posted in public.31 Thomas, ‘Petitions’ (1983). Wilcken, ‘Kaiserreskripten’ (1920); Nörr, ‘Reskriptenpraxis’ (1981); Williams, ‘Libellus’ (1974); Williams, ‘Publication of Imperial Subscripts’ (1980); Williams, ‘Epigraphic Texts of Imperial Subscripts’ (1986); Honoré, Emperors and Lawyers (1994), 35–7; Hauken, Petition and Response (1998), 263, 300–6; Sirks, ‘Making a Request to the Emperor’ (2001), 121–35. Turpin, ‘Imperial Subscriptions’ (1991) 30 31

Caracalla, the Severans, and the Legal Interest of Emperors 255 Examples of how answers to rescripts were crafted are few. A famous example is Dig. 37.14.17.pr from Ulpian, which describes the decision-making process regarding bonorum possessio by Marcus Aurelius and Lucius Verus. The emperors considered the previous opinion of Proculus, their own earlier decisions, the advice of Maecianus, and after him a number of other renowned jurists.32 While letters, especially those inscribed by their recipients, sometimes contain long and florid descriptions, the subscript texts can be short and blunt in the extreme, giving the impression of an official in a hurry not bothering to hide his irritation towards petitions wasting his time. Severus and Caracalla even wrote that the applicant should not expect any help from their constitutions (Cod. Iust. 8.18.1), or that if the applicant was convicted of fraud the rescript would be of no use (5.47.1). In many of the rescripts the reasoning behind the decision was not discussed. In the Severan rescripts of the Codex there were often references to previous imperial constitutions (Cod. Iust. 5.54.2, 6.26.2, 6.50.5, 12.35.4), reason (ratio, 6.26.2), the spirit of the times (5.4.3), ratio iuris (4.39.2), antiqua lege (8.35.1), ancient custom (8.52.1), but also the authority of iuris periti (7.14.1, 9.23.1). Severus Alexander made a reference to a particular constitution by Marcus Aurelius and Commodus to Aufilius Victorinus (4.57.2), but also to a response by Ulpian, who is mentioned as praefectus annonae, jurist, and his friend (amico meo, 8.37.4). Even petitioners resorted to the authority of lawyers, for example, by copying a response of Papinian in their petition (6.37.12). Severus Alexander was the first emperor to write about the impact of rescripts. There was no direct effect on ongoing lawsuits. A rescript based on a petition before the verdict will be useless unless there was an appeal against the decision. (Cod. Iust. 1.21.1). Similarly, a rescript does not change a court verdict (7.57.3), nor does it prevent an appeal (7.62.2). However, a rescript has a permanent authority, and a rescript gained by one benefits all parties (1.23.1–2). Severus Alexander was sure to underline that, in a particular case, the rescripts given by him and his predecessors were in accordance with law and claims that subscripts did not have value as a precedent, but he fails to convince, as over a thousand of them are presented in legal sources. 32 The case has been most recently discussed by Sirks, ‘Making a Request to the Emperor’ (2001), 124–5.

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equity and not contradictory (2.1.8). The influence that rescripts had in court cases was recognized, as is evident from two rescripts: Severus Alexander maintained that, in his time, a judge who ruled against an imperial constitution could not be accused of maiestas (9.8.1). Equally, a person who used a false rescript would be punished severely (9.22.3). It is still very much unknown how someone would know what the emperor had decided in other cases. Some were widely distributed, such as the famous sacrae litterae rescript of Severus and Caracalla from 204, known from no less than nine copies spread across a large area.33 There apparently was some sort of imperial archive, and the rescripts were posted in a public place for a time, but how one could find a decision made years ago is a mystery involving the existence of imperial and gubernatorial archives and their accessibility.34 Nevertheless, Caracalla could remind a petitioner that he had already written to him about the issues that his sister had with her guardian.35 Imperial subscripts, such as the apokrimata from Severus’ visit to Egypt in the winter of 199–200, were most likely originally published by posting them. In Rome, some sources suggest that the subscripts were published by posting them at the portico of Trajan’s baths, whereas the stoa and gymnasium were used in Alexandria. The interesting question of where a rescript was posted if the emperor was on the move has been discussed, though the results remain hypothetical beyond the known examples. The apokrimata text of P.Col. 123 contains replies to petitions probably handled during three consecutive days. The original editors suggested that P.Col. 123 was preserved because a scribe had copied it as a sample of language used by the imperial chancery. Others maintained that the copy was a part of an official transcript of decisions published in Alexandria. The most common explanation is currently that the copy was made by a local jurist to establish an archive of precedential cases. It is plausible that the original petition remained in the imperial archives, while a copy of the subscript was posted and copied by the petitioner and other interested parties, such as local legal practitioners. Though some have suggested that there were facilities where one could 33

See the list of cases in the Appendix for references. Sirks, ‘Making a Request to the Emperor’ (2001), 127. On the archives, see Varvaro, ‘Note sugli archivi’ (2006); Haensch, ‘Statthalterarchive’ (2013). 35 Cod. Iust. 8.43.1. 34

Caracalla, the Severans, and the Legal Interest of Emperors 257 come and copy imperial orders, that is not supported by the sources. From the examples of copied subscripts where the date of the decision and the date that the copy was made are preserved, it would appear that the subscripts remained posted for at least a month and, in Alexandria, sometimes for several months.36 Then there is the issue of why, for example, the Goharians or other communities decided to publish the full minutes of the meeting instead of the verdict. Such an approach was used in the lis fullonum case in Rome in 226 (CIL VI 266). The purpose was probably to highlight the involvement of the emperor in the case and the exceptional nature of the whole imperial intervention.37 Of course, when people from the provinces are granted imperial beneficia, such as Roman citizenship, it was only natural that such social recognitions were advertised.38 The apokrimata yield an important detail regarding the volume of imperial legal business, namely, that during three days the emperors resolved thirteen cases. There is, of course, no comprehensive information available on how much time it took and how many cases each emperor handled, but it has been suggested that legal business claimed the ‘vast majority of any conscientious Roman emperor’s time’. In any case, considering how trifling matters were sometimes decided by the emperor, it should be a safe bet to assume that he was 36 Williams, ‘Libellus’ (1974), 92, 97–100; Williams, ‘Publication of Imperial Subscripts’ (1980), 287–8; Westermann and Schiller, Apokrimata (1954), 99–101; Coriat, Prince législateur (1997), 610–18, 624–5. Williams, ‘Libellus’ (1974), 88–9 contains the list of subscriptions on papyri known from that visit. In the case of papyri, there has reigned the assumption that if the different parts of the texts are written by different hands, one may be dealing with the original, while texts written in one hand may be copies. Even inscriptions reveal archival practices, such as the number of witnesses that verify the authenticity of the copy, or, in the case of the Skaptopara inscription (IGBulg. 2236 = SIG 888), a reference to the liber libellorum that were possibly the method which the petitions were stored in the imperial archives. Williams, ‘Epigraphic Texts of Imperial Subscripts’ (1986), 187. There are some examples where a letter circulated widely, e.g. a letter by Severus Alexander to the koinon of Bithinia was referred to in POxy. 17.2104, POxy. 43.3106, and by Dig. 49.1.25. On this example, see Kantor, ‘Knowledge of Law’ (2009). 37 Stolte, ‘Jurisdiction and Representation of Power’ (2003), 266–8. On the lis fullonum case, see Tran, ‘Procès des foulons’ (2007); De Robertis, ‘Lis fullonum. Oggetto della lite’ (1982); De Robertis, ‘Lis fullonum. Notazioni critiche’ (1977); Litewski, ‘Prozesswiederholung nach der ‘lis fullonum’ (1975); De Robertis, Sull’accezione di interlocutio (1972); De Robertis, CIL VI, 266 (Lis Fullonum) (1970); Musca, D. ‘Lis fullonum’ (1970). 38 See e.g. the Tabula Banasitana: Schiller, ‘Tabula Banasitana’ (1975), 148–9.

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constantly trailed by an army of petitioners. There were high expectations of the emperor to deliver justice, and the way individual emperors handled these expectations varied greatly.39 The nature of these expectations were naturally diverse, ranging from the hopes of petitioners of being heard as an unspoken reward for their loyalty, to the function of petitions as a way of controlling lowerlevel administrators. Making any assumptions about the total number of petitions and rescripts is highly problematic, as is deducing where the petitions were from. Our two examples are indicative of the possible tendency of petitioners to approach the emperor when he was in the area. The majority of imperial subscripts in Egypt date from the same visit during the winter of 199–200.40 There have been many attempts at making estimates of how many petitions could have been presented to the emperor, but such exercises involve a fair amount of guesswork.41 Petitions to the emperor, as witnessed by inscriptions, follow a uniform rhetorical structure. They consist of four parts: the address or inscriptio, the beginning or exordium, the story or narratio, and the request or preces. The petitions usually follow this set scheme, suggesting that even if a letter manual was not used, scribes generally knew how to draft an imperial petition. It is even possible that the petitioners who produced three surviving inscriptions used the same scribe in Rome to frame their petition to the emperor.42 Sometimes petitioners would include documents such as testaments (Cod. Iust. 3.33.2) or letters (8.37.1) in the petitions. The division of rescripts into epistulae and subscriptiones is uneven, with subscripts heavily outnumbering letters. For example, between 193 and 235 the Severan dynasty produced a total of 1,182 rescripts

39

Peachin, Iudex (1996), 80–2, 84, 87–8. Williams, ‘Publication of Imperial Subscripts’ (1980), 286–7. 41 The estimates of the total number of petitions are fairly wide-ranging; see e.g. MacMullen, Response to Crisis (1976), 76 (1,500 per year to Severus); Honoré, Emperors and Lawyers (1994), 45 (4–5 rescripts per day); Millar, Emperor (1992 [1977]), 245 (4–5 per day, several hundred per year); Peachin, Iudex (1996), 82 (4–5 libelli, a consultation, 1–2 trials or appeals per day). Pölönen, ‘Quadragesima’ (2008), 102 (imperial courts handled 500–2,500 cases per year). 42 Hauken, Petition and Response (1998), iii, 286–7; Feissel and Gascou, ‘Documents d'archives romains inédits’ (1995). 40

Caracalla, the Severans, and the Legal Interest of Emperors 259 preserved in the Justinianic compilation, of which 1,119 were subscriptiones and only sixty-three epistulae.43 The interpretations of the function of the rescript system have varied, there being two main theories, one focusing on legal administration and the other concentrating on the idea of it as an extension of imperial patronage. The first emphasizes its role in the legal bureaucracy as a mechanism in which law was created and information about it disseminated. Many consider that rescripts were authoritative replies to legal questions, almost like the ius respondendi. Some have even suggested that they were a free legal service that at the same time provided an authoritative ruling which made law more uniform.44 On the administrative side, rescripts were interpreted as bureaucratic missives that were almost decrets, while others suggest that they were legislation by reaction. The second theory was founded on the social tradition of patronage. According to this theory, rescripts were an extension of the patron’s duty to offer advice to his clients. Because the system of patronage was so ingrained, it was impossible for the emperor to refuse to give advice when it was asked of him directly. Some elements of this theory, such as that the authority of the rescript came from the emperors’ role as pontifex maximus, are interesting, though unconvincing. Supporters of the idea of the emperor’s social duty to answer queries are quick to refute the theory of rescripts as free legal advice and promoting unity of law on the basis of the emperor being hard to reach and the rescripts being hard to find. If the emperor was supposed to answer petitions, there does not seem to be any special obligation for him to make it easy or convenient for the petitioners.45 I would argue that there is no inherent contradiction between the fact that there was a social duty or expectation for the emperor to answer legal queries and the promotion of legal unity—quite the contrary. The two functions operated side by side.

43 Coriat, ‘Technique du rescript’ (1985), 319–20; Hauken, Petition and Response (1998), 299. On the number of constitutions, see Arcaria, Referre (2000), 7–8 and Coriat, Prince législateur (1997) 153, where the total number of epistulae and subscripts is 78 and 1,122, making a grand total of 1,200. However, see Spagnuolo Vigorita, ‘Review of Arcaria, Referre’ (2001), 248–54 on the fluidity of distinctions between the two. 44 Honoré, Emperors and Lawyers (1994), 33–6; Sirks, ‘Making a Request to the Emperor’ (2001), 128–30. 45 Sirks, ‘Making a Request to the Emperor’ (2001), 128–30; Williams, ‘Publication of Imperial Subscripts’ (1980), 286.

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It was of utmost importance that the emperor was the final arbiter of law and, with determination, one could reach him. As with the Goharians, the emperor admitted them to present their case even though it was highly unusual and against the rules of procedure, and resolved the case in their favour to let justice prevail over law. He is thus emphasizing his power and demonstrating that he is the ultimate authority. Whether or not one believes that there was a practical and uncomplicated system for reaching the emperor with one’s petition, this holds true. Aristides’ praise of the emperor being the source of law accessible to his subjects was quite remarkable, regardless of the practical arrangements this took. While Wilcken and many others saw the rescript system as an ideal model where the governors functioned as postmen that relayed petitions to the emperor, recent observers have been more sceptical and have questioned the efficiency and functioning of the public mail, as even governors were liable to use private messengers in its stead.46 The model advanced by Millar was that the imperial legal administration was deeply reactive, meaning that it responded to challenges rather than created policies.47 This model is mostly based on the idea of petition and response as the ideal model of the imperial governing system. The libellus system as the vehicle for petitioning was the mechanism that made this type of government possible.48 Within adjudication, this model needs considerable revising. One of the main issues of the era is how much the emperor is an individual actor in his legal decisions and how much a simple mouthpiece of the jurists. In the latter view, one does see a resemblance to the praetor’s role in the formulation of law during the Republic. Fundamentally, the question is whether the law is the emperor’s law or the jurist’s law. Supporters of the imperial role in jurisdiction have criticized legal scholars for reducing the emperor to a simple rubber stamp who approved the opinions written by the jurists in his consilium. They underline that the emperors did, for the most part, have a long experience in acting as a judge and understood the symbolic 46 Stolte, ‘Jurisdiction and Representation of Power’ (2003), 262, 268. A similar suggestion is made by Williams, ‘Libellus’ (1974), 97 and Hauken, Petition and Response (1998), i. It should be noted that Aristides does talk about appeals and consultations, not petitions. See Kolb, Transport (2000) on the functioning of the cursus publicus. 47 Hauken, Petition and Response (1998), 298. 48 Millar, Emperor (1992 [1977]), 208–9.

Caracalla, the Severans, and the Legal Interest of Emperors 261 significance of the position.49 The proponents of jurists’ law have responded that while the emperor did act independently on numerous occasions and gave oral rulings, the rescripts that actually changed law were mostly written by professional lawyers.50 In the debates over the duties and roles of the emperor, the role of answering petitions has of course been central. Some scholars, like Millar, have maintained that the emperor was supposed to answer petitions and hear appeals personally, that the communication of power and patronage simply worked that way. Others, like Honoré, have emphasized the role of legal functionaries and have distanced the role of the emperor to something akin to a figurehead who had little substantive relevance in the grand scheme of things. Finally, Peachin has claimed that actions such as the appointment of iudices vice sacra were indications of how the office of the emperor was becoming separated from the person of the emperor. Even if the person of the emperor was lazy, absent, or incompetent, the office of the emperor was not. Thus the emperor could be ever-vigilant and responsive because the emperor was not simply a person but the office surrounding him.51 On the ideological level, the rescript system can be seen as an indicator of the monarchic style of the imperial government. That took place on many levels. On the practical level of power, the imperial rule was a monarchy of a judicial character. On the ethical level of power, the Roman emperor resembled the oriental Hellenistic conception of a king as a judge who is always just. The emperor as judge and legislator had the both the right and the obligation to interpret and modify the law and to be accessible to his subjects and give them equitable justice.52 In this system, the Severan jurists such as Ulpian were the holders of imperial justice, who participated in the construction of an autonomous law by interpreting the imperial decisions. The legal system and 49 Millar, ‘L’Empereur romain’ (1990), 216–17, 220. The main debate has been between Millar and Honoré. 50 Honoré, Emperors and Lawyers (1994), 28–32. Some have gone as far as to maintain that the rescripts are nothing more than responsa issued under the authority of the emperor. See Corcoran, ‘Gregorianus and Hermogenianus’ (2013) on Hermogenian. 51 Connolly, Lives behind the Laws (2010), 155–7; Millar, Emperor (1992 [1977]), 6 and passim; Honoré, Emperors and Lawyers (1994); Peachin, Iudex (1996), 203. 52 Coriat, ‘Technique législative’ (1990), 222.

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the mode of government are intimately linked, and the jurists are parts of a centralized bureaucratic machinery that conserved and rationalized the juridical. The contentious law of jurists was replaced by state law emanating from the decisions of the emperor. The emperor was lex animata, the source of law.53 Despite this conceptual clarity of the superiority of the emperor, in practical administrative matters the emperor’s fiat was not as straightforward. For example, in a case where a slave had been forced into prostitution against the condition of sale, the execution of the ruling of the emperor—that she should be freed—was not only based on a Hadrianic constitution, but also needed the input of both the city prefect and the praetor to take effect (Cod. Iust. 4.56.1). While the role of the emperor was unequivocally to be the voice of the law, the draftsmen behind that voice were some of the best jurists of the era. Jurists like Papinian, Ulpian, and Modestinus worked as a libellis, the secretaries that drafted the imperial rescripts.54 The way that emperors and lawyers might also cooperate and work together in forming of legal opinions is apparent in the way the opinion of jurists could emulate that of the emperors in Dig. 37.14.17, where Marcus and Verus had summoned Maecianus and other jurists to discuss a matter, and when Maecianus had, in their presence, agreed with their earlier rescript, he was induced to join them in a discussion leading to a new interpretation. What the example shows is that the emperors were willing to discuss matters and eager to prevent their authority from skewing the opinions of jurists. One of the important changes of the era is that the Severan period saw the transformation of the locations of the imperial monarchy. Rome ceased to be the only residence of the emperor, and henceforth, in practice, the capital was where the emperor was. Thus, diverse cities became the centre of the empire while the emperor resided there. The emperor was a sort of itinerant capital of the Roman Empire. Rome became a communis patria, an ideal of a civilization, the symbol of which was the emperor.55

53 Coriat, Prince législateur (1997), 657, 662. On Severan period and jurisprudence, see Nasti, Tradizione giurisprudenziale romana (2012). 54 On imperial secretaries and their work, see Honoré, Emperors and Lawyers (1994). 55 Coriat, ‘Technique législative’ (1990), 224; on the phenomenon, see Thomas, ‘ “Origine” et “commune patrie” ’ (1996).

Caracalla, the Severans, and the Legal Interest of Emperors 263 However, in addition to this very universal idea of the emperor as the centre of the legal universe were the ideals of approachability and the opportunity for personal contact between the emperor and his subjects. The contacts between the emperor and his subjects were very personal, meaning that there was little contact beyond that where the subjects came to meet him where he was at the time. Time, effort, and travel all placed limitations on the likelihood of meeting, but it was significant that there was such an opportunity. This was the background to the way the cases that formed Roman law were chosen.56 The theory of the emperor’s essential passivity, that he initiated no constructive policies but rather his activities were dictated by the impulses that came from outside, has been heavily criticized for its narrow viewpoint. According to its critics, the theory of the passive emperor presented the emperor as patron who benevolently responded to petitions and queries from his clients. Even if the emperor was the uncontested and omnipotent ruler, it was the passivity that defined him as the patron and not the tyrant. What the critics argue is that it is unjustified to call the casuistic mode of operation of the imperial government passive. What impulses were reacted upon and what action was taken is not passivity, but another kind of initiative and activity that is no less valuable than that of promulgating general laws. Regarding general policies, the Roman emperors did have clear policies in the political, economic, social, and military spheres.57 Much more than that, it is evident that the encouragement of communication and its use as an administrative vehicle was in and of itself a strategic choice, where writing, copying, and approving what was written were not only practical but also symbolic acts.58 Ultimately, I would argue that the contradictions between the opposing theories of the emperor engaging in a conscious policy of advancing law and administration through the rescript service and the emperor being a passive recipient of the queries and complaints of his subjects are based on the selection of viewpoints and sources. This

56 Millar, Emperor (1992 [1977]), 618. What is notable is that so many of the cases, especially those preserved in inscriptions, are from the eastern half of the empire. 57 Bleicken, Regierungsstil (1982), 185–7, 196–9; Millar, Emperor (1992 [1977]), 6. 58 On the communicative strategies of Roman emperors and administrators, see Ando, Imperial Ideology (2000), 86–90.

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was probably how the emperor’s legal activities were seen at the time by people serving in the legal administration and the people in the provinces making the petitions. The inscriptions containing imperial rescripts are an interesting source of information on the way the emperor was seen and presented by the petitioners. The Ağa Bey Köyü inscription from Lydia in Asia contains a petition from the peasants of an imperial estate who are being oppressed by the tax-collectors and cannot get relief from the local authorities. They note that substantial ransoms have been paid, though they claim to be ‘pitiable people bereft of life and relatives’ (ἀθλίοις ἀνθρώποις ἀφῃρημένοις καὶ βίου καὶ συνγενῶν οὕτως ὠμῶς). Only the intervention of the ‘most divine emperor ever’ (κρατίστοις ἐπιτρόποις), whose ‘divine and unsurpassed kingship’ (θειότατοι τῶν πώποτε αὐτοκρατόρων) they are humbly approaching, will punish the wicked for this outrage. They go so far as to present a thinly veiled threat: if the emperor’s ‘heavenly justice’ (οὐρανίου δεξιᾶς) will not punish the evildoers, they will have to abandon their homes on the imperial estates and seek life elsewhere.59 The narrative strategies of petitioners were sometimes quite striking and sought to imprint on the emperor, and possibly the imperial secretaries, the power of appearances, lest they resort to technicalities and reject their appeal. The inhabitants of Kemaliye, also in Lydia, petitioned probably Septimius Severus, Caracalla, and Geta for the same reason, tax-collectors. Again the ‘greatest and most divine of emperors ever’ (μέγιστοι καὶ θειότατοι τῶν πώποτε αὐτοκρατόρων) should help the poor villagers by upholding ‘your laws and those of your ancestors and your peace-giving justice for all’ (ὑμετέρους νόμους τῶν τε προγόνων ὑμῶν καὶ πρὸς τὴν εἰρηνικήν ὑμῶν περὶ πάντας δικαιοσύνην).60 The structure of the petitions is strikingly similar, as may be deduced from the examples where the petition is found complete, such as the Skaptopara inscription from Thrace (IGBulg. IV 2236 = SIG 888). In it, the emperor is lauded for his magnanimity and wisdom, and his reign described as a happy one. It is also within the tradition that the petitioners place their full trust in the emperor 59

Keil and Premerstein, Reise in Lydien (1914), n. 55; tr. and edn., Hauken, Petition and Response (1998), 29–57; Millar, Emperor (1992 [1977]), 542. 60 Keil and Premerstein, Reise in Lydien (1914), n. 55; tr. and edn., Hauken, Petition and Response (1998), 58–73.

Caracalla, the Severans, and the Legal Interest of Emperors 265 to settle the matter satisfactorily. The Skaptopara inscription is unusual in that it contains not only all the elements of the petition and the imperial rescript, but also the speech of the village’s advocate before the provincial governor. It should be noted that the imperial response was a tad more cautious, simply telling them to take their problems to the governor (a standard response even in rescripts preserved in Justinian).61 If the petitioners were playing the victims to elicit what they thought of as the sympathy of the powerful in a manner that would become even more pronounced during late antiquity, the imperial style of responding was becoming increasingly terse and condensed. Our knowledge of the original style of the responses is, of course, limited mainly to inscriptions and papyri, because the responses contained in the juridical compilations were explicitly shortened and whatever rhetorical flourishes there were in the original were later cut in order to preserve the juridical point. However, even the emperors would strive to present the image of justice, responding that law should be applied justly (Cod. Iust. 8.13.2). The style of majestic simplicity was quite possibly even the aim of the imperial authors and ghost-writers. For example, Philostratus (V S 2.33) writes that an emperor should be quite brief in writing and never use reasoning; he should merely express his own will: ‘nor again should he be obscure, since he is the voice of the law, and lucidity is the interpreter of the law.’62 The emperor’s word is the law, and thus what the emperor says should be unequivocal and clear. Whether the fact that Philostratus thought it necessary to give instructions to imperial authors should be seen as a sign that there was a market for instructions on how to write like the emperor, for the emperor, on behalf of the emperor, or that he included these instructions as an example of style is naturally pure speculation. In addition to the imperial secretaries, who had to write on behalf of the emperor, there was a group of people who were expected to learn how to judge, behave, and write like an emperor. The appointment of judges vice sacra or iudex vice Caesaris was one way of 61 Connolly, Lives behind the Laws (2010), 29–38; Williams, ‘Epigraphic Texts of Imperial Subscripts’ (1986, 198–204; Hauken, Petition and Response (1998), 264–8; Turpin, ‘Imperial Subscriptions’ (1991), 112–13. The petition was sent to Gordian III and the subscript was dated AD 238. 62 οὐδ᾿ αὖ ἀσαφείας, ἐπειδὴ νόμους φθέγγεται, σαφήνεια δὲ ἑρμηνεὺς νόμου. Tr. Hauken, Petition and Response (1998), 274.

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dealing with the central role that the emperor had gained in the Roman legal system. By the time of Severus it was vital for the functioning of the system that the emperor was available to judge and that he did respond. Because the emperor had also to go on campaigns and engage in other business, stand-ins were appointed. During the third century there was a whole group of men who were appointed as iudices vice Caesaris. For example, Pollienus Auspex acted in this role from 197 to 202, during Severus’ campaign in Parthia, while Nummius Albinus was vice sacra in 208–9, during the British campaign. Suetrius Sabinus was appointed by Caracalla in 214, but served only until his appointment as praefectus alimentorum in 215. The traits common to these men and later holders of the post are that they are all high-ranking officials from good families who had held the consulate. Apparently, the men destined to sub for the emperor should look convincingly imperial and status; knowledge and experience were crucial.63 Though the emperors were often absent from Rome and stand-ins were appointed, the idea that the emperor would personally adjudicate cases continued to be a significant part of the imperial topography. Instead of having a tribunal at the Forum, the reception hall or auditorium became the main seat of imperial justice. Epigraphic evidence shows that Septimius Severus and Caracalla had an imperial tribunal in the area of the aedes Apollonis in AD 204 (Fig. 2.1).64 During the time of Severus Alexander, the phrase in auditorio would be shorthand for the imperial court (Cod. Iust. 7.16.4). If one looks at the manner in which emperors handled their correspondence, one is at the same time observing their adjudication, as the major part of known imperial correspondence handles petitions regarding a legal case. The other, smaller group consists of petitions regarding imperial beneficia, protection or privileges. These are largely absent from legal sources and known mostly from inscriptions.65 It is very likely that the majority of petitions were in fact non-legal requests for beneficia. The fact that legal rescripts are so dominant should not cloud the fact that emperors most likely handled a vast correspondence of an administrative and political nature. 63

Peachin, Iudex (1996), 88–91, 93–6, 101, 151–3. Whether they only handled trials or also rescripts is not known. 64 CIL VI 32327.11–12, 22–4; De Angelis, ‘The Emperor’s Justice’ (2010) 145. 65 Hauken, Petition and Response (1998), 300.

Caracalla, the Severans, and the Legal Interest of Emperors 267 If there were different secretaries for different subjects, we do not know. This complicates the understanding of procedure, not only in the case of vice sacra but also in the instances where, for example, the emperor’s mother handled his correspondence. Dio writes that Julia Domna would handle Caracalla’s correspondence and received petitions and embassies while they were in winter camp in Nicomedia in 214–15.66 It is, of course, impossible to say whether legal issues were excluded or what kind of arrangement it was,67 but we know that gracious responses from Julia Domna were considered important enough to merit their being inscribed by the people of Ephesus.68 It is unlikely that she actually drafted the answers to petitioners herself. Both Dio’s text and the fact that he was a senator from the same region suggest that Dio was accompanying Caracalla at the time.69 From that period there are in total nineteen rescripts preserved from the year 214 and forty-four rescripts from the year 215. According to Honoré, during the years 213 to 217 the rescripts were drafted by what he dubs ‘Secretary no. 5’, whom he has identified through his style of writing.70 Even if we could identify rescripts written during the time in Nicomedia, we have little indication of whether the answering of petitions took place only there, and thus comparisons would be impossible.71 Such delegation of imperial correspondence and answering petitions, and, by extension, adjudication, could be seen as a reversal of the long development towards the centralization of the law in the person of the emperor.

66 Cass. Dio 78.18.2–3; Freisenbruch, Caesar’s Wives (2010), 179–204; Levick, Julia Domna (2007); Hemelrijk, Matrona Docta (1999); Ghedini, Giulia Domna (1984); Kettenhofen, Syrischen Augustae (1979). See also Cass. Dio 19.4 for her continuing role in maintaining his correspondence until his death. 67 The issue of Julia Domna’s involvement in Caracalla’s correspondence and answering of petitions has been usually bundled up with the use of the iudices vice Caesaris and his general mismanagement of imperial administration. See e.g. Liebs, ‘Reichskummerkasten’ (2006), 145–6; Coriat, Prince législateur (1997), 189–90, 226, 232; Honoré, Emperors and Lawyers (1994), 26, 36, 46; Nörr, ‘Reskriptenpraxis’ (1981), 35. 68 SEG XXXIII 938; SEG LI 1579, ll. 9–14. 69 Davenport, ‘Cassius Dio and Caracalla’ (2012). 70 Honoré, Emperors and Lawyers (1994), 91–5. 71 For example, the rescripts dated to this winter are Cod. Iust. 5.40.1 from 5 Nov. 214, 8.20.1 from 18 Nov. 214, and 5.43.2 from 13 Jan. 215, all on purely legal issues signed by Caracalla.

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During the period from Antoninus Pius to the late Severan emperors, the idea of the sovereign imperial judge becomes entrenched. While imperial sovereignty and the unfettered power of the emperor were outlined as early as in the writings of Seneca, only during the late Antonine period does the emperor actually embrace the power of being the living law. While Trajan and others were still happy to delegate the occasional case to lower courts of Republican heritage, the imperial chancery begins to take shape and, with the imperial offices of the prefect of the city and the praetorian prefect, assumes an almost universal jurisdiction.72 What did this centralization mean in the practice of jurisdiction in situations where there were several contenders for power ruling simultaneously for several years? Or when emperors were engaged in warfare for years? The fact that there are statements from historians about nearly all emperors’ performance as judges may be seen as a sign of the continuing importance of their personal adjudication. The death of Commodus brought to the throne Pertinax (r. AD 192–3), who was lauded as a good judge by historians such as Dio and Herodian. The fact that he ruled for only three months before being killed by the praetorian guard somewhat lessens the value of such statements.73 Of the intervening emperors prior to Severus, few managed to make an impact with their adjudication or administration.74 Septimius Severus (r. AD 193–211), the winner of the civil war, has enjoyed a very good reputation, despite the fact that his relationship with the Senate was troubled. Part of his good reputation was probably due to the fact that most of what we know about his reign comes from Dio, who was his councillor. Severus was clearly a model emperor for Dio, and Dio held adjudication to be very central to the duties of the emperor.75 Herodian says that, when in Rome, Severus was assiduous in administering law. He also oversaw the civilian administration well and tried to inculcate moderation in his two sons. He mostly stayed

72 The power of the praetorian prefect to give general edicts was confirmed in Cod. Iust. 1.26.2 (see also Dig. 1.11, where his role as the emperor’s second-in-command is affirmed). Dig. 1.12.1–3 describes the role of the city prefect. 73 74 Herodian 2.4.1–5; Cass. Dio 74.5, 74.8. SHA Pesc. Nig. 7.4. 75 Cass. Dio 75.16.3–4, 76(77).17.1–3.

Caracalla, the Severans, and the Legal Interest of Emperors 269 outside Rome, pursuing judicial and administrative work.76 There are numerous cases adjudicated by Severus known from different sources, ranging from imperial intrigues to very mundane issues. We have, for example, an inscription recording a decision of Severus regarding a request for an exemption from the building code rules on window height.77 With Severus, as well as with his successors, one sees the continuation of the narrative where, with regard to the common people, the emperor is a source of justice in sometimes the most mundane of queries, while within the imperial court the plotters, competitors, and unfortunate bystanders were being killed, sometimes with no official procedure at all, sometimes after a cursory hearing. A good example is the downfall of Plautianus and the killing of his family at the instigation of Julia Domna. After a sort of trial by the imperial family, he was killed on the order of Caracalla.78 Cases from the reign of Severus and Caracalla (ruling jointly AD 198–211) suggest that senators used the advantage of their proximity to the emperor to get their petitions heard.79 Due to the fact that the jurist Paul served in Severus’ consilium and published a work on imperial decisions, we know Severus’ legal work comparatively well.80 Papinian writes that Severus and Caracalla had excused jurists serving in the imperial consilium from serving as tutores, because they were required to be at the emperors’ side at all times.81 In the Codex there are a total of 188 rescripts from their joint reign, most of them clarifications of points of law and answers to individual petitions. In some instances Severus and Caracalla took pains to note that they wanted to have a more general effect. For example, in their response to a petition by merchants about the easing of rules about the return of stolen wares to their rightful owner, the emperors threatened that they would be suspected of a crime if they did not obey.82 The jurists, however, were not necessarily toadying to the emperors. Paul wrote that the emperor should not validate an 76

Herodian 3.10.2, 3.13.1. CIL VI 3770 (=31330); Turpin, ‘Imperial Subscriptions’ (1991), 111. 78 Herodian 3.12.11–12. 79 Dig. 28.5.93 (92), 36.1.38.1. Millar, Emperor (1992 [1977]), 534. 80 See the list of cases in the Appendix for examples. Note also how most of the cases in Rizzi, Imperator cognoscens decrevit (2012) derive from Paul’s work. 81 Dig. 27.1.30.pr., Iuris peritos . . . in consilium principum adsumptos. 82 Cod. Iust. 6.2.2. 77

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imperfect will and to do so would be shameless. His imperial majesty should observe laws even if he is exempt from them.83 Severus Alexander, writing about intestacy, affirmed this principle, maintaining that even though the lex imperii released the emperor from the formalities of the law, it is prudent that he lives according to the law (Cod. Iust. 6.23.3). For Dio as well as for other contemporaries, Caracalla’s sole rule (AD 211–17) was in stark contrast with the reign of Septimius Severus, who after all had Caracalla as his co-regent for a number of years. When Severus died in 211, Caracalla moved to establish his power by dismissing a number of important functionaries. He fired Papinian from the post of prefect and killed a number of people he personally disliked.84 However, the more drastic changes took place the following year, when Caracalla disposed of Geta, his brother and co-ruler. When he killed Geta, he also killed his freedmen and the soldiers loyal to him, in total some 20,000 people. In these purges Papinian also lost his life. It is hardly a coincidence that the purges took place at the same time as important—and possibly popular—reforms. For example, in the same year 212, in addition to the constitutio Antoniniana, Caracalla pardoned all exiles banished to an island, no matter what the charges.85 Caracalla has acquired a contradictory reputation in the field of law. On one hand, he presided over important reforms such as the constitutio Antoniniana, while on the other, he was known for recklessness and violence. The extent of Caracalla’s reputation for transgression, as well as the belief that the emperor was truly above the laws, is evident in the story in the Historia Augusta about Caracalla marrying Julia Domna.86 There are 264 rescripts from Caracalla’s sole reign in the Codex. As judge, the accounts on Caracalla are contradictory: Herodian said he was straightforward in his reasoning and able to make good

83

84 85 Dig. 32.23. Cass. Dio 78.1.1–2. Cass. Dio 78.3.3. SHA M. Ant. 10.2–3. The author of the SHA calls her his stepmother, mentioning that she was a beautiful woman. When she had as if by accident revealed her body to him, he had said ‘Vellem, si liceret.’ (‘If I could, I would.’). She had replied ‘Si libet, licet. An nescis te imperatorem esse et leges dare, non accipere.’ (‘If you want, you can. Does it not mean being an emperor that you give the laws, not obey them?’) Levick, Julia Domna (2007), 195 mentions that the incest legend was part of a later narrative tradition. 86

Caracalla, the Severans, and the Legal Interest of Emperors 271 judgments on the basis of the advice given,87 while Dio reports that he neglected his imperial duties as judge.88 Caracalla made several rescripts in which he showed special favour towards soldiers, for example, overlooking their ignorance of the law due to ‘a soldier’s simplicity’.89 Most of his rescripts are purely legal, some quite complex and difficult to reconcile with the image of a reckless Caracalla.90 In the Codex we have Caracalla’s judgment outside the cognition, which Coriat sees as an example of how the emperor could make decisions without a prior process:91 I restore you to your province with all your rights. Moreover, that you may know what it means to be restored to all your rights, I hereby reinstate you in your offices, your rank, and all your other privileges. Restituo te in integrum provinciae tuae. Ut autem scias, quid sit in integrum: honoribus et ordini tuo et omnibus ceteris.92

The constitutio Antoniniana is possibly a similar attempt by Caracalla to win favour. Though Honoré sees it as a part of a cosmopolitan and egalitarian movement to bring human rights to all,93 it should be noted that the reasons for, the extent of, and the implications of the reform are controversial.94 The rest of the Severan emperors, Macrinus (r. AD 217–18), Elagabalus (r. AD 218–22), and Severus Alexander (r. AD 222–35), are a mixed lot. The short reign of Macrinus was noted by contemporaries as a brief respite from the unrest, when security was restored.95 Equally, Dio writes that Macrinus was honest. His knowledge of the law was exceptionally good, as was his adherence to it.96 The Historia Augusta says that Macrinus was wise in the administration of law and decided to rescind the decisions of earlier emperors so that judgments would henceforth be made according to law, not the decisions of emperors. He said it would be a crime to give the force of law to the decisions of Commodus and Caracalla and other untrained men.97

87

88 Herodian 4.7.2. Cass. Dio 78.17.3, 78.18.2–3. Cod. Iust. 1.18.1. Other examples of favour to soldiers: Cod. Iust. 2.12.7, 2.12.9. 90 91 Cod. Iust. 2.3.7, 3.28.12. Coriat, Prince législateur (1997), 99. 92 Cod. Iust. 9.51.1. The Codex text mentions that Licinius had been sentenced to deportation to an island and restored without a hearing. 93 Honoré, Ulpian (2002), 84–5. 94 On the implications of the CA, see further discussion later in this chapter. 95 96 97 Herodian 5.2.2. Cass. Dio 79.11.2. SHA Opil. 13.1. 89

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Both Elagabalus and Severus Alexander were very young and controlled by their female relatives, mostly by their grandmother Julia Maesa. All narratives of the reign of Elagabalus are coloured by the accounts his flamboyant lifestyle, scandals that alienated the elite and the people alike, as well as his religious programmes.98 Dio, an eyewitness, writes that Elagabalus had more or less the appearance of a man when he was judging someone in court. Otherwise, and everywhere else, he behaved effeminately.99 Though the memory of Elagabalus was condemned and thus his constitutions were not included in the Justinianic compilation, there are some of his rescripts preserved in manuscripts and epigraphic sources.100 After the murder of Elagabalus and his mother, Severus Alexander was raised to the throne at the age of 13. After the excesses of Elagabalus, there was a concerted effort to improve administration, and trusted people from the reign of Septimius Severus were brought in. Among them were both Dio and Ulpian. Alexander, at the instigation of his mother Mamaia, had employed Ulpian to aid the praetorian prefects. Ulpian became a member of his council and magister scrinium. He was an excellent lawyer and legislator, but irritated the soldiers. When Elagabalus and his mother were killed, along with them perished the prefects and most of the high administration officials. After Ulpian was made sole prefect by Alexander, he was killed by the soldiers in front of the emperor and his mother.101 Herodian writes that Severus Alexander’s mother urged him to spend most of his days in judicial work so as to keep him occupied with important imperial business, not giving him a chance to develop vices. He was a lenient judge, who until his fourteenth year did not execute anyone, even someone guilty of serious crimes.102 Again, in the rescripts of the Codex the level of complexity of some of the decisions may perhaps indicate that he did not write these by himself.103 The

98

de Arrizabalaga y Prado, The Emperor Elagabalus (2010). Cass. Dio 79(80).14.3–4. SHA Heliogab. 16.4 reports that he dismissed both Ulpian and Sabinus. 100 One is included in the Visigothic epitome of Codex Gregorianus (13.14.1), one is an inscription, CIL VI 21046.33. Honoré, Emperors and Lawyers (1994), 95. 101 102 Zos. 1.11.2; Cass. Dio 80.1–2.3; Eutr. 8.23. Herodian 6.1.6–7. 103 Cod. Iust. 3.37.2–3, 3.41.1, 4.21.2, just to take some examples of his teenage rescripts. 99

Caracalla, the Severans, and the Legal Interest of Emperors 273 volume of rescripts continues to climb, as there are 442 rescripts of Severus Alexander in the Codex of Justinian. The imperial adjudication increasingly took on a dual role. On the one hand, there were the public trials and petitions in which the petitioners faced the emperor in person. In these meetings, the evidence suggests that the emperors almost invariably sought to appear benevolent and just, a good king that rights wrongs and brings justice. On the other hand, the written procedure, especially that of petitioning and rescripts, was business-like and brusque, focusing on the legal issue. For the petitioners, both types of response would be a cause for celebration, which is evident in the way that both the extraordinary instances where the emperor gives you a private hearing and arranges a special trial for you (as in the Goharian case), and the more normal response where the emperor tells you to turn to the governor (as in the Skaptopara case), were suitable reason for the commissioning of a celebratory inscription. Thus the two sides of the system, the practical and the ideological, were firmly intertwined, and one cannot really make a distinction between the ideas of responsivity and passivity. Responding to petitions was what the emperor did; even so-called bad emperors, murderous thugs and asocial characters, abided by this rule. The emperor’s role as the final arbiter meant that this process took place in close collaboration with jurists, but nevertheless it is clear from the sources that the law was ultimately the law of the emperor.

DIO AND THE IMPERIAL PERCEPTION Cassius Dio (c.155–235), as the councillor of Septimius Severus, is an interesting mirror reflecting the way the perception of imperial powers was transformed. A senator from Nicaea in Bithynia, he spent much of his life in imperial service, holding important positions from the reign of Commodus to that of Severus Alexander. During a period of over twenty years he wrote, in Greek, a massive treatise on the history of Rome from the earliest times to the present day, comprising eighty books. Like many of the earlier senatorial Roman historians, Dio enjoyed privileged access to historical material as well as earlier literature (he boasts of having read everything written on Roman history), but as a historical source he has not enjoyed the

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respect accorded to the likes of Tacitus or Livy.104 The aim of this section is to explore the understanding of Dio regarding imperial adjudication, and to discuss how his historical narrative reflected the contemporary convictions of imperial power, but also how this monarchical view of the emperor was tempered by the insistence of the role of the Senate. What Dio offers for the study of imperial adjudication is a contemporary perspective of the Severan period. While Dio writes extensively about the Roman Republic in his histories, his view about the empire is decidedly monarchical, a state built around the emperor. Even with considerable wealth and resources to pour into the enterprise, Dio’s history is often quite similar to its predecessors. It is, of course, impossible to make confident assertions about the sources used by Dio, as similar examples and anecdotes may have circulated commonly. A telling example is Suetonius’ anecdote of Domitian’s penchant for stabbing flies with a stylus,105 which is repeated by Dio.106 Would we be justified in maintaining that Dio copied Suetonius, or did a story like that just circulate? Instead of approaching the matter through the history of events, I will be concentrating on the images that Dio constructs and what they tell us of the role of the emperor in law and his duties in adjudication. Dio’s viewpoint is important because he presents the Roman elite contemporary view of what the emperor’s jurisdiction should be like, as opposed to the 104 Cass. Dio 1.1. The main study on Dio’s life and works is still Millar, A Study of Cassius Dio (1964), but see equally Manuwald, Cassius Dio und Augustus (1979). Of the extensive literature on Dio, of interest to this study are especially works on Dio’s career alongside emperors (Cleve, ‘Cassius Dio and Ulpian’ (1988); Davenport, ‘Cassius Dio and Caracalla’ (2012)), contentious debate over the methods and merits of Dio as a historian (Straub, ‘Cassius Dio und die Historia Augusta’ (1972); Barnes, ‘Composition of Roman History’ (1984); Reinhold, ‘In Praise of Cassius Dio’ (1986); Swan, ‘Cassius Dio on Augustus’ (1987); Kolb, ‘Herodian und die Quellen’ (1995); Lintott, ‘History of the Late Roman Republic’ (1997); Swan, ‘How Cassius Dio Composed his Augustan Books’ (1997); Schmidt, ‘Zeitgeschichtlichen’ Bücher’ (1997); Moscovich, ‘Palace Sources’ (2004); Kordoš, ‘Thucydidean Elements’ (2010)), the constitutional views of Dio on the Roman Empire, especially in the light of the Maecenas debate (Hammond, ‘Speech of Maecenas’ (1932); McKechnie, ‘Speech of Agrippa’ (1981); Roddaz, ‘De César à Auguste’ (1983); Steidle, ‘Geschichtswerk des Cassius Dio’ (1988); Ameling, ‘Griechische Intellektuelle’ (1997); De Blois, ‘Volk und Soldaten’ (1997); De Blois, ‘Perception of Emperor’ (1998/1999); Kemezis, ‘Augustus the Ironic Paradigm’ (2007); Adler, ‘Agrippa–Maecenas Debate’ (2012)). 105 Suet. Dom. 3.1. 106 Cass. Dio 65(66).9.5. On the sources of Dio and his use of earlier historians like Suetonius, see Millar, A Study of Cassius Dio (1964), 34–7, 86.

Caracalla, the Severans, and the Legal Interest of Emperors 275 provincial approaches the other examples provided. Of course, Dio was from the Greek East, and as such one can assume that he would have been influenced by the Greek and Hellenistic theories about kingship and the good king as law animate. But Dio was also a typical product of the multicultural High Empire, a citizen of the empire who was at home both in his hometown and in Rome at the Senate. As with Aristides earlier, it is easy to see how conceptions like the Roman Republic appear differently from the viewpoint of the Greek East and that of Italy. The imperial office and its power emerged, for Dio, almost complete during the Augustan reforms, and among these powers was the jurisdiction of the emperor. Dio is one of the most important authors to give a truly monarchical account of the Principate. As he writes in his lengthy history of Augustus, the Romans executed a full transition from a republic to a monarchy. With absolute command over money and soldiers, Augustus had unquestioned power over all things in the Roman world. Even though he would long avoid the appearance of kingship and his successors would also paper over their power with the use of republican titles, for Dio there was no question that what was created was a monarchy (53.16–18). According to Dio, as part of his new powers Augustus was granted appellate jurisdiction in 30 BC (51.19.7) and civil and criminal jurisdiction in 27 BC (53.17.6). An earlier precedent for Augustus’ jurisdiction was the permission given to Caesar to deal with the supporters of Pompey however he liked (42.19–20). While these texts were discussed earlier in relation to the development of the understanding of Augustus’ jurisdiction, there are two things that should be noted in the way Dio discusses the matters. First, in both instances the active party in assigning these powers was the people of Rome or the Senate and the people of Rome, not Augustus himself. Second, despite the creation of monarchical power, the illusion of a republic was maintained in the way that emperors continued to act as consuls. After the accession of Augustus and the battle of Actium, the monarchy is established and individual emperors are evaluated more or less by the way they fulfilled their role as rulers. For Dio, the most important characteristics of the emperor are virtue and competence, and they are revealed in the course of history. Augustus sets a standard, from which his immediate successors are prone to slip and descend into misrule and mayhem. His depiction of the JulioClaudian emperors is a spiral of tyranny, where each emperor was

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progressively worse than his predecessor, exceeding each other in vice and violence. While Tiberius had been harsh and murderous, Caligula was worse, a puppet directed by charioteers and gladiators, who raped his sisters and killed innocents with abandon (59.3–6). But still, the empire was better than the Republic, a necessary form of autocracy to ward off chaos. For many scholars, the emphasis that Dio places on Augustus has been seen as building an idealized image of him as the paradigmatic good emperor. Critics have maintained that, far from a panegyric, Dio actually lays bare Augustus’ ruthless ambition and drive to establish a monarchic system of governance.107 The image of imperial power and the law presented by Dio is bleak. Millar observed that the fact that the word of the emperor is law appears to Dio very differently than to the writers of previous generations, who waxed poetically in their panegyrics about the infinite wisdom and justice of the all-powerful emperor. For Dio and his contemporaries, the empire was an autocracy where the best one could hope for from imperial justice was the preservation of personal safety and dignity.108 Without going into detail, the changes in power during Dio’s long career resulted in killings, judicial and extrajudicial, massacres, and torture ordered by emperors against their opponents. While Dio’s narrative is bursting with anecdotes and historical examples, the emperor and his duties remain largely the same, though minor reforms are mentioned. In short, Dio presents us with a standard emperor, who is then given some supporting characteristics. A central part of this standard emperor is the regular work as a judge. Tiberius is shown adjudicating in public with his consilium, Caligula with the Senate. Caligula used both a consilium and the Senate as his aids in adjudication. In the depiction of Claudius, a series of reforms is described which no other historian mentions. The early reign of Tiberius is clearly held as exemplary, the publicity, the use of the consilium, and the allowing of free discussion are seen as positive. 107 Reinhold, ‘In Praise of Cassius Dio’ (1986), 215: Dio was ‘a committed monarchist for whom Augustus was the model princeps’. Lucrezi, ‘Al di sopra e al di sotto delle leggi’ (1984), 686 on the Principate as a legal monarchy. De Blois, ‘Perception of Emperor’ (1998/1999), 278: majesty of Augustan monarchy the only way military tyranny is avoided. On criticism of this paradigm, see Kemezis, ‘Augustus the Ironic Paradigm’ (2007), 271–2. On the idea of continuous decline, see Ameling, ‘Griechische Intellektuelle’ (1997), 2482–4. 108 Millar, A Study of Cassius Dio (1964), 118.

Caracalla, the Severans, and the Legal Interest of Emperors 277 Claudius and Trajan are also positive characters, who emulated Tiberius’ style in these respects. Galba and Domitian serve as warnings, Galba because he could not control his freedmen and Domitian because of his unpredictability. The tendency of emperors to use the law for political purposes is shown by the way in which Claudius is praised for ending the use of maiestas charges.109 The main difference between the Republic and the Empire was, according to Dio, the openness of the administration. In the Republic, everything was known, reported to the Senate, and openly discussed, whereas during the Empire everything was dealt with personally by the emperor in secrecy, with rumours and whispers taking the place of public discussion. Even when something was stated, it was instinctively distrusted and alternative explanations multiplied (53.19). Dio’s narrative is different with regard to emperors he had served or whose actions he had observed as a participant. He uses a pointed first-person narrative when it is clear that he was present at the time.110 A senator in Rome during the final years of Commodus, he experienced at first hand the short reign of Pertinax, whom he describes as honest and good. The way that Pertinax is depicted shows much of Dio’s own preferences: a good emperor shows great respect both to the Senate and to justice. Thus, Pertinax’s declaration that he would never execute a senator and never kill anyone without just cause made him an almost ideal emperor (74.1, 74.5, 74.8). He gave Dio himself high honours and the appointment as praetor (74.12). For Dio, the murder of Pertinax and brief reign of Didius Julianus was a source of concern, as he had prosecuted Julianus on a number of occasions and won. His vivacious description of the resulting commotion and the scorn he heaps on Didius Julianus are again indicative of the fact that he was an eyewitness (74.12–14). Equally, his jubilant description of the entry of Septimius Severus into Rome and the deification of Pertinax bears the mark of an eyewitness account (74(75).1–5). What the role of Dio was in the administration of Severus is unclear, but he does describe the work habits of Severus in a manner 109

Cass. Dio 57.7.2–6, 59.18.1–3, 60.3.7–60.4.4, 60.28.6, 60.29.4–6a, 64.2.3, 67.4.2, 67.17, 68.10.2. 110 On Dio as an eyewitness and the references to contemporary propaganda, see Schmidt, ‘ “Zeitgeschichtlichen” Bücher’ (1997); Moscovich, ‘Palace Sources’ (2004).

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that indicate he observed him adjudicating, describing himself as his advisor. Severus’ daily routine would consist of waking up before dawn, taking a walk, and attending to running errands of the empire. Then he would sit in court with his advisors until noon. Dio describes him as an excellent judge, one who gave plenty of time to litigants and who allowed his councillors to present their opinions (77.17).111 Dio continued as the emperor’s councillor during the reign of Caracalla, but his opinion of Caracalla was decidedly negative. Again, the manner of Caracalla’s adjudication was a reflection of his character in general. Caracalla would spend time with his freedmen and soldiers, neglecting the senators that were supposed to act as his councillors. He would have them appear at his court at dawn and let them wait until noon or sometimes until the evening before appearing himself. Dio was even there in Nicomedia when Caracalla neglected all official business, entrusting it to his mother Julia Domna, who held receptions and listened to petitions for him.112 This behaviour was naturally something to be expected from a man who had murdered his own brother in the lap of their mother, before proceeding to buy off the soldiers and murder some 20,000 supporters of his slain brother. In Dio’s lengthy narrative about this murderous rampage, Caracalla’s cowardice, petty attention to detail, and disregard for justice are underlined again and again. He allowed the praetorians to murder Papinian without question, saying that he entrusted the praetorians with the power to act as accusers, judges, and executioners. The only thing he criticized them for was using an axe rather than a sword. He courted favour by releasing prisoners and exiles, but freed without a second thought even the worst criminals as well (78.1–4).113 Dio’s assessment of Macrinus was overwhelmingly positive, even though he was the first emperor not to have been a senator. According to Dio, he was honest and just as a magistrate, but not very knowledgeable of the law (79.11). Much of the epitome of the seventy-ninth book is fragmentary, making any definite judgment

111 Dio criticized Severus for his harshness and inconsistent policies on historical precedents (76.7–8). 112 Cass. Dio 78.17.3, 78.18.2–3; Davenport, ‘Cassius Dio and Caracalla’ (2012), 802. Davenport argues that Caracalla did not avoid his senatorial associates, despite Dio’s claim. 113 See Meckler, ‘Caracalla’s Sense of Humor’ (2005), on the episode of Papinian’s murder.

Caracalla, the Severans, and the Legal Interest of Emperors 279 impossible, but Dio’s final words are a testament to the paramount power of the emperor over law: [T]he very man before whom many senators had often been brought for trial; he was condemned to die, though possessing the authority to punish or to release any Roman whomsoever; and he was arrested and beheaded by centurions, though he had authority to put to death both them and others, whether of lower or higher station. And his son, too, perished after him. φρουρούμενον ᾧ πολλοὶ πολλάκις βουλευταὶ προσήχθησαν, ἀποθανεῖν τε ἐκελεύσθη τὴν τοῦ κολάσαι [3] πάντα τινὰ Ῥωμαίων ἀπολῦσαί τε ἐξουσίαν ἔχων, καὶ πρὸς ἑκατοντάρχων συνελήφθη τε καὶ τῆς κεφαλῆς ἀπεστερήθη οὓς καὶ αὐτοὺς μετὰ τῶν ἄλλων τῶν τε χειρόνων καὶ τῶν κρειττόνων ἀποκτεῖναι ἐξουσίαν εἶχεν. καὶ αὐτῷ καὶ ὁ υἱὸς προσαπώλετο.114

Dio would not have been a proper senator if he had not added to the description of Macrinus’ life the epithet that, had he not aimed for the emperorship with such haste, without first becoming a senator, his end would not have been so ignominious (79.41). Here, as so often in other sections of Dio’s work, the main threat to the stability of the Roman state were the unruly soldiers, whose affection and loyalty could be bought. To the senatorial elite, the soldiers and the mob of Rome were unpredictable and could upend the carefully constructed social and political hierarchy.115 As said, Dio’s last book only partially survives, but Dio’s disdain for the chaos after Macrinus’ death and the rise of Elagabalus (whom he calls Sardanapalus) knows no bounds. However, even here Dio shows the centrality and seriousness of adjudication in the job description of an emperor: although Elagabalus would receive the salutations of senators while reclining, when he was trying someone in court he would at least make an attempt to look like a man.116 After the murder of Elegabalus, Dio reports on the rise of Alexander Severus, noting that he himself was absent for much of the time. The change in emperor brought about a late rise in Dio’s career, where he 114

Cass. Dio 79.40. Tr. Cary. De Blois, ‘Perception of Emperor’ (1998/1999), 278–81; De Blois, ‘Volk und Soldaten’ (1997), 2660–9. 116 Cass. Dio 79(80).13–14. As Scheithauer, ‘Regierungszeit des Kaisers’ (1990), shows, Herodian relies much on Dio with Elagabalus. Cary’s Loeb edition adopts a rather strange system of division, where the life of Elagabalus is in Book 80, while in Boussevain it is in Book 79. Alexander Severus’ life is equally in Book 80, leading to a duplication of the numbers 80.1–5. 115

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was first appointed to important provincial tasks and then to a second consulship. Whether due to the epitomer’s choice or his own volition, the account for Alexander Severus is very short. He notes that Alexander chose Ulpian as the pretorian prefect and entrusted him with ‘the other business of the empire’, whatever that might mean. Ulpian was able to correct many of the misdeeds of Elagabalus, but ended up being murdered by the praetorians.117 Dio’s imperial perception was myopic, but claiming that he had no historical framework or theory118 is perhaps an overstatement. What he certainly had was an observation point, sometimes one that was too close for comfort. I would argue that one of the underlying constants in his depiction of imperial power over law, life, and death was the lack of security for all in the public arena. A paranoid emperor or rioting soldiers could end the life and career of even the most distinguished person, not to mention someone completely innocent, with little or no warning. Even the Senate itself could be persuaded to kill one of its members based on dubious accusations, as the case of Baebius Marcellinus shows. An informer in another case involving maiestas and magic had mentioned that a bald senator appeared during the events. Fear gripped the Senate, wishing to clear itself, and the senators with even slight baldness feared for their lives. Dio himself was grateful that he still had a full head of hair. At a meeting of the Senate the concealed informant pointed to Marcellinus, who was promptly sentenced to death and immediately led away for execution (77.8–9). This barely restrained power to kill that prompted even the Senate to kill one of its own out of fear of being accused was a menace that threatened all who came into the ambit of the emperor. But did it have anything to do with the judicial responsibilities of the emperor? For Dio, the answer was clearly negative. Adjudication in the sense of answering petitions and requests was clearly a central part of the imperial duties, and even someone like Elagabalus is shown attempting to abide by the expectations that litigants had of 117 Cass. Dio 80.1–2: Millar, A Study of Cassius Dio (1964), 23–6. On the role of Ulpian in government, see Cleve, ‘Cassius Dio and Ulpian’ (1988). 118 Millar, A Study of Cassius Dio (1964), 171: ‘Dio was no Polybius.’ He claims that Dio was able to observe the strife and civil wars in safety (‘ . . . could watch, in safety, civil wars, proscriptions, the murder of two Emperors and then the ascent to the throne of an equestrian . . . ’), a claim that is perhaps a bit too trusting in the safety of the senators.

Caracalla, the Severans, and the Legal Interest of Emperors 281 the emperor’s court. Similarly, the depiction of the derelictions of duty by Caracalla included avoiding the timely management of his jurisdiction, but also implies that he was letting his mother handle it for him. The speech of Maecenas, one of the main instances where Dio does venture into defining the Roman emperor’s duties, is very clear that jurisdiction is the emperor’s personal responsibility. A good emperor should allow petitions and appeals from the highest magistrates to come to him, but also delegate jurisdiction to the Senate when possible. Cases where the death penalty is possible should especially be reviewed by the emperor. He should consult the leading ranks before making his judgment, allowing his advisers a chance to give their opinion freely in writing (52.31–3).119 Even early observers noted how the speech is neither a description of the age of Augustus nor an ideal monarchy, but rather a curious reflection of the situation during the time of Dio himself. Thus, the way that jurisdiction is arranged speaks more about Dio’s era than that of Augustus.120 Whether one sees the speech as a political pamphlet or something else remains contentious;121 however, it is evident that Dio realized the contemporary importance of his work. Dio’s history of Roman emperors may equally be seen as programmatic in its depictions of good and bad emperors. The power of the emperor to rule, to legislate, and to adjudicate starts ex nihilo from Augustus and his quest for sovereign rule. Augustus singlehandedly forms the jurisdictional authority of the emperor, which his successors would use according to their abilities. Dio separated clearly the use of jurisdiction on issues of imperial power and securing it, and the regular adjudication that was expected of the emperor. Even though Dio was a member of the senatorial elite, he had no illusions about the Republican past as a viable alternative. His conservatism extended to moral and political discussion of the emperor’s virtues and, unsurprisingly, the status and privilege of the Senate and its members.

119 Reinhold, ‘In Praise of Cassius Dio’ (1986), 219 on the speech of Maecenas as ‘the authentic voice of Dio himself ’. 120 Hammond, ‘Speech of Maecenas’ (1932), 93, 99–100. 121 Millar, A Study of Cassius Dio (1964), 102–18; Manuwald, Cassius Dio und Augustus (1979), but see Steidle, ‘Geschichtswerk des Cassius Dio’ (1988).

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The role of the emperor as judge and his sovereignty with regards to law grew in tandem. These ideas of the unrestricted power of the emperor that, during the early Principate, were expressed mainly in the writings of panegyrists like Pliny or imperial allies like Seneca started to make their way into law. While the lex de imperio Vespasiani used numerous paragraphs to outline the different powers of the emperor based mostly on precedents, such niceties were largely dispensed with during the Severan period. One of the most famous jurists of that period, Ulpian, was the main formulator of the theory of the sovereign legal power of the emperor, and his surviving texts show that he considered imperial power to be truly unfettered. Imperial power was undefined, but what authors like Ulpian sought to do was to define its relationship with the law. The purpose of this section is to explore how Ulpian translates the narrative of imperial sovereignty and absolutism into the language of law. Through its practical implications for the adjudication of the emperor and the philosophical underpinnings, the aim is to see how Ulpian managed to combine the positivism of imperial law with the ethical demands that he placed on the law. Ulpian, or Domitius Ulpianus (c. AD 170–223), contributed to the growth of the status of imperial adjudication in two ways: first by establishing the relationship between the emperor and the law in a way that had profound implications on how imperial decisions changed law, and second by seeking to ensure that the adjudication done in the name of the emperor was of the highest intellectual, legal, and ethical standard, making it authoritative both in form and in content. Being one of the most prolific Roman lawyers, Ulpian’s work is one of the best-preserved, there being up to 300,000 lines of text ascribed to him. His work comprises some 40 per cent of the Digest.122 Ulpian’s most famous text is the passage in the Digest that states that the emperor is free from the power of the law: ‘The emperor is

122

On Ulpian and his work, see Marotta, Ulpiano (2000–4); Honoré, Ulpian (2002); Crifò, ‘Ulpiano’ (1976), 734–6; Kunkel, Römischen Juristen (2001), 245–54. On Ulpian’s conception of justice, see Winkel, ‘Die stoische οἰκείωσις-Lehre’ (1988); Waldstein, ‘Zu Ulpians Definition der Gerechtigkeit’ (1978).

Caracalla, the Severans, and the Legal Interest of Emperors 283 not bound by law’ (princeps legibus solutus est).123 This succinct statement confirmed that the emperor was both free from the compulsion of the laws in his own actions, and thus that legal recourse against the emperor was not possible. Furthermore, the emperor was not bound by the laws when he was applying the law himself. A decision made by the emperor as judge could thus be against the law, as he was free to not observe the laws as he saw fit. What is often forgotten is that this comment by Ulpian was initially made in relation to statutory law (lex Julia et Papia), and explained that the emperor was exempt from it.124 This power to make decisions which disregarded the law would have led to considerable logical difficulties if it had not been accompanied by a second statement confirming that the word of the emperor was law. Ulpian formulated this through the illusion of popular sovereignty and the idea that the people had transferred their legislative power to the prince: What pleases the prince has the force of law. The populus has with the lex regia that his imperium is founded transferred to him their imperium and power. Quod principi placuit, legis habet vigorem: utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat.125

The implications of this statement were, in principle, considerable, and they are in line with what his contemporary Dio thought of the roots of imperial power. The emperor was truly living law, his will having a legislative capacity. The logical continuation of that is, of course: when does one know whether a decision or an utterance may be seen as binding? Ulpian continued this blanket statement with a description of which of the emperor’s statements should be held to be binding and which not. Those that are simply personal matters were

123

Dig. 1.3.31, tr. Watson et al. A similar reference to a lex imperii as the source of the emperor’s power was made by Severus Alexander in 232 (Cod. Iust. 6.23.3). Ulpian’s statement formed the legal basis of absolutism in European history, and thus the literature on it is vast. The process through which the compilators transformed this into an absolutist statement is a well-known example of ‘interpolation by decontextualization’. See Crifò, ‘Ulpiano’ (1976), 778 and Gallo, ‘Solutio legibus’ (1984), for references to older literature. For its vast influence, see Pennington, Prince and Law (1993). 125 Dig. 1.4.1.pr., tr. Watson et al. 124

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not commonly binding (Dig. 1.4.1.1–2). What this meant was that the emperor’s words and intent are precedential and they have a legislative capacity when they are thus meant. The imperial control over adjudication even extended downwards through the legal system. Ulpian notes that if a judge appointed by the emperor hears a case, restitution cannot be granted by anyone other than the emperor. He writes that having an appeal is necessary to correct the partiality or inexperience of the judges. It is even possible to appeal against a rescript of the emperor, because it may be that the person writing to the emperor asked for something else or that matters were misrepresented in the letter. These issues were dealt with by Antoninus Pius and Marcus Aurelius and Lucius in rescripts that Ulpian quotes verbatim.126 Ulpian’s life is little known beyond his official career. An honorary inscription found in Tyre confirms the highlights of his career, the posts of praefectus annonae and praefectus praetorio. They are both equestrian positions, and indicate that he never was a senator. That meant that his career, like those of many important imperial functionaries, was closely tied to the emperor.127 Because we know quite a lot, relatively speaking, about Ulpian’s thinking through his writing, and his name also appears in other sources, many have seen him as an intellectual who had a profound influence on the way Rome’s legal policy was shaped. Honoré maintains that Ulpian promoted the idea of the equality of men and that all should have protection under the law.128 One of the most intriguing features of the tradition is the role of Julia Domna, Caracalla’s mother and the wife of Septimius Severus. Philostratus mentions the circle of intellectuals around Julia Domna that would have included the most renowned scholars of the era. Within the circle were also the famous jurists Papinian, Ulpian, and Paul. Doubts have been voiced over the reliability of the information and the true nature of the circle.129 For Ulpian scholars, the fact that Ulpian and other prominent jurists were in contact with the brightest intellectuals of the era, discussing the 126

Dig. 4.4.18.4, 49.1.1.pr-2. AE 1988, 1051; Honoré, Ulpian (2002), 7–12; Crifò, ‘Ulpiano’ (1976), 708–87; Kunkel, Römischen Juristen (2001), 245–54. 128 Honoré, Ulpian (2002), 81. 129 Philostr. V A 1.3. See also Philstr. (the Elder) Ep. 73; Bowersock, Greek Sophists (1969). On Domna’s circle, see Levick, Julia Domna (2007), 107–23; Crifò, ‘Ulpiano’ (1976), 734–6. 127

Caracalla, the Severans, and the Legal Interest of Emperors 285 nature of justice and humanity, is indeed enticing. Would the new conceptions of law and justice and Ulpian’s idea of law as a true philosophy have been influenced by the circle?130 The fact that the decisions (constitutiones) of the emperor had a legislative capacity was, of course, already stated by Gaius (Inst. 1.5), Pomponius (Dig. 1.2.2.11), and as part of a very similar listing by Papinian: Ius autem civile est, quod in legibus, plebis scitis, senatus consultis, decretis principum, auctoritate prudentium venit (Dig. 1.1.7.pr). The impact of imperial decisions and adjudication was immediate, even to the extent that Macer writes that if a judgment is given that violates imperial constitutions, the need for appeal is remitted, that is, it may be rescinded without appeal.131 In Ulpian’s thought there appear two distinct lines regarding imperial adjudication. The first is one of positivism: the emperor’s will is the law, and thus whatever legal problems there may arise can be solved by the judicious use of that power. The second is that law and jurisprudence contains an ethical or philosophical dimension, one where the object is to fulfil the quest for justice. What the two lines of thought produce combined is the practical matter of granting a fallible human agent unlimited power and declaring the decisions that are then produced ethically good and just. Each of the two elements were amply present in the narrative tradition before. The narrative of the almost divine good king who is not only the living law but also virtuous and just continues from Hellenistic literature onwards through Seneca to the Roman literary tradition. However, almost without fail, that concept has been seen as an ideal, the moral and ethical virtue of the ruler that he should ascribe and aspire to, not a standard against which the actual decisions of the ruler are measured. For Roman legal authors, the almost divine role of the emperor becomes apparent through the behaviour that is commented upon. For example, Callistratus writes that it is forbidden to seek sanctuary from a statue of the emperor if one has injured another.132 Formerly people sought refuge from the statues of gods.

130 Dig. 1.1.1.pr.; Winkel, ‘Die stoische οἰκείωσις-Lehre’ (1988), 669–79, 677–8 argues that it is possible that contact with the circle could have influenced Ulpian’s concept of law. Honoré, Emperors and Lawyers (1994), 81–2, remains sceptical. Crifò, ‘Ulpiano’ (1976), 734–6 calls the circle a fantasy of historians. 131 132 Dig. 49.8.1.2. Dig. 48.19.28.7.

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As becomes clear from the history of the Severan period, the emperors themselves were hardly the perfect ethical and moral persons that the good-king myth described. One of the factors leading to doubts about the emperor’s personal influence in law from the early second century onwards is that lazy and murderous emperors, like Caracalla or even Elagabalus, seem to leave behind imperial constitutions that are sound and within the legal doctrine.133 An answer to this conundrum may be the separation of the private and the public person of the emperor. Even if the emperor as a person was a raving lunatic, the imperial bureaucracy would write in the manner that the emperor would need to write. As Peachin has written earlier, what was important for the daily routine of the legal system to work was that there should be the institution of the emperor, not necessarily an emperor knowledgeable in law.134Another issue relating to the growing impact of imperial adjudication was the impact of the so-called constitutio Antoniniana that granted Roman citizenship to the inhabitants of the empire.135 The impact of the CA was unclear even to the ancient Romans. Dio famously maintained that the aim of the grant of citizenship was to expand the tax base by increasing the number of citizens who paid the full tax burden (78.9). The faulty logic behind Dio’s explanation is fairly obvious, as most of the members of the elite who paid the lion’s share of taxes were already citizens, and even non-citizens paid taxes of their own. Ulpian wrote that Caracalla made all people in the empire citizens: In orbe Romano qui sunt ex constitutione imperatoris Antonini cives Romani effecti sunt (Dig. 1.5.17). The passage comes from his Ad edictum, written during the reign of Caracalla. The conventional date of AD 212 has been maintained, despite some critics pointing to its unreliable basis in the Giessen papyrus.136 Would the act mean that Caracalla had with one stroke of a pen abolished the long-standing personality principle of law in favour of the area principle? At least as far as Ulpian was concerned, the erstwhile distinctions between Romans and Latins were thus redundant, but that of peregrine status 133 Visigothic epitome of Codex Gregorianus (13.14.1); CIL VI 21046.33. Honoré, Emperors and Lawyers (1994), 95. 134 Peachin, Iudex (1996), 203. 135 P.Giss. 40.1; Cass. Dio 78.9.4; Dig. 1.5.17; Sasse, Die Constitutio Antoniniana (1958); Wolff, Die Constitutio Antoniniana (1976); Buraselis, Theia Dorea (2007); Bryen, ‘Citizenship Papyrus’ (2015), 29–37. 136 Millar, ‘The Date of the Constitutio Antoniniana’ (1962).

Caracalla, the Severans, and the Legal Interest of Emperors 287 continued to be relevant. Whether such a drastic reform would have been immediately applied to the administrative practices of the provinces is highly unlikely, but instead many previous procedures would have continued unchanged.137 What the grant of citizenship to all inhabitants of the empire would have meant was an expansion of the pool of petitioners. While provincials that were not Roman citizens most likely petitioned the emperor in large numbers anyway, it is likely that the expansion of citizens’ rights would have encouraged even more to use their legal privileges. Would this have meant that the Roman Empire became a huge single area of legal unity, a kind of cosmopolis where each and every person was entitled to seek the emperor’s aid and judgment?138 The only problem is that our sources from the time are inconclusive. Yes, there is a considerable rise in the number of rescripts that have been preserved.139 However, whether this pertains to the fact that the issues dealt with within the rescripts were more noteworthy, the rescripts were of better quality and thus more quotable, or that there were more rescripts to begin with, we simply do not know.140 What we do know is that Ulpian felt very strongly about the link between law and justice. According to him, law and lawyers should cultivate ‘the art of goodness and fairness’ (ars boni et aequi), the ‘virtue of justice and claim awareness for what is good and fair’ (iustitiam namque colimus et boni et aequi notitiam cupientes). This ‘true philosophy’ of determining the licit from the illicit was tied not only to positive law, but also to natural law and ius gentium (Dig. 1.1.1.pr–1). Central to Ulpian’s thinking was the idea of natural law as 137

Wolff, Die Constitutio Antoniniana (1976), 26–8, 272–3; Marotta, Cittadinanza romana (2009); Ando, ‘Introduction’ (2015), 22–4. 138 Thomas, ‘ “Origine” et “commune patrie” ’ (1996); Moatti, ‘Notion of res publica’ (2015). 139 During the eight decades of the Antonines, there are 648 constitutions preserved, thus on average 7.9 per year. In contrast, from the Severan period there are 1,230 imperial constitutions, equalling 33.2 per year. 140 Legal scholars working on legal sources (e.g. Kaser, Das römische Privatrecht 2 (1975), 53) are very clear that the result was the removal of the distinction between ius gentium and ius civile and the extension of Roman law to all of the empire. The controversy on the CA revolves around the contradictory evidence from blanket statements and the epigraphical and papyrological evidence found in the provinces. Sherwin-White, Citizenship (1973), 380–92. Even Sasse, Die Constitutio Antoniniana (1958), 17, was doubtful of its practical implications, but see Kantor, ‘Local Law’ (2015), 52–6.

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the morally superior corrective to the traditional sources of ius civile and ius gentium. Thus, we may see the claim of slavery being an institution of ius gentium but not of ius naturale to be an embodiment of the fundamental unity and equality of man. Separating the conventions of law from the ideals of law allowed for the simultaneous upholding of social and legal institution as an existing fact and the philosophical statement of the equality of man. Not only did it make possible the introduction of possibly Stoic philosophical tenets into legal theory, but also enabled the internal criticism of law.141 While many of the elements of the emperor as living law and the bringer of justice may be seen as propaganda, it has been argued that, for Ulpian, this conviction was true and that the task of lawyers and decisionmakers, the foremost of them the emperor, was to bring justice equally to all.142 The significance of the issues relating the constitutio Antoniana to that of imperial jurisdiction and adjudication is naturally one of legal pluralism versus legal centralism. If one considers that local laws continued their existence and validity in the provinces, the scope of the imperial adjudication would have been much more limited than if one assumes that all inhabitants of the empire were henceforth subject to Roman ius civile. Scholars working on the provincial, mostly Egyptian, sources have pointed out how much the local laws and customs were still in use after the CA was supposedly implemented. Their attempts, ever since the works of Mitteis, at combining the two approaches have mostly involved assumptions that Roman law had, in principle, subjected other legal systems to its power, and to the role of local customs, which were tolerated as long as they were not considered to be repugnant (such as endogamic marriages) or violated the rules of Roman law.143 The legal centralist argument focused on the growth of the imperial legal apparatus and what was to become the very centralized system of Roman law that was built upon the practice of imperial adjudication and the delegation of that adjudicative power, as well as the legislative impact that imperial adjudication had in the form of rescripts. Scholars of the later

141 Dig. 1.1.4; Honoré, Ulpian (2002), 77–81. Ulpian uses natural law and nature in a number of other instances: Dig. 9.2.50, 25.3.5.16, 37.15.1.1, 50.17.32. 142 Crifò, ‘Ulpiano’ (1976), 782; Honoré, Ulpian (2002). 143 Amelotti, ‘Reichsrecht, Volksrecht, Provinzialrecht’ (1999), 213–14; Modrzejewski, ‘Diritto romano e diritti locali’ (1993), 988–1005.

Caracalla, the Severans, and the Legal Interest of Emperors 289 imperial administration, such as Corcoran, saw the efficient use of imperial adjudication as the foundation of the whole system of government and the unitary nature of the Roman Empire: ‘The tetrarchic emperor remained highly approachable and the system served even those of traditional low status in the ancient world, such as women and slaves.’ He emphasizes how provincial governors were directed in their administration of the law by the flow of letters and manuals emanating from the emperor, directing them to apply his justice in the provinces.144 Legal Romanization would have proceeded with the flow of rulings. What the provincial and pluralist counter is that the effects of Romanization in the field of law were sometimes slow in the extreme. On the other hand, many of the elements of Roman law made their way into the provinces much earlier.145 Ulpian’s main contribution to the discussion of imperial jurisdiction was the working out of the implications that imperial sovereignty would have for the exercise of jurisdiction. The emperor’s will was law, and thus extreme care should be exercised in the way it was used in practice. For Ulpian, the positivism of his view of imperial jurisdiction was tied to an unexpected conviction that the justice of the emperor should strive to fulfil the ethical and moral demands of justice. While many of the earlier writers were content to maintain that the emperor should be virtuous and bring justice, Ulpian sought to posit that the emperor should actually fulfil these demands set by the ideal emperor. As seen in the cases where subjects were seeking an audience with the emperor to present their petitions to him, the approachability of the ruler was one of the two essential virtues of the Roman emperor. There had to be an opportunity to reach the emperor if one had the motivation to make the effort. The other virtue was megapsykhia, the greatness of spirit that the emperor should demonstrate in receiving the petitions of his loyal subjects. The illusion of approachability was, of course, a universal part of the good-king myth, where the king is virtuous and faultless and all mistakes and bad decisions can be blamed on bad advisers. When these ideals of approachability and benevolence were put into practice, the implications that reforms like the constitutio Antoniniana were astounding. Legal centralism, the 144 145

Corcoran, Empire of the Tetrarchs (2000), 293, 295. Zingale, ‘Diritto romano e diritti locali’ (1999), 223; Tuori, ‘Pluralism’ (2007).

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principle behind imperial sovereignty, posited that law should be uniform and emanate from the centre in order to prevent local abuses of power. In a centralized state it was possible to supply justice to all. The emperor should, in theory at least, be approachable by all his subjects, now comprising the entire population of the realm, and should bring ethically and morally sound justice. The sources are peppered with examples of direct imperial involvement. Paul writes of a case regarding legates that an emperor engaged in questioning the litigants.146 The greatest of mysteries of the administration of justice by the emperors is that of how these two tendencies coexisted.

CONCLUSIONS The forms of imperial adjudication were compartmentalized during the Severan period, and the narrative tradition around them became increasingly diverse. The main change is in the sources, where the volume increases tremendously, from single cases to hundreds per emperor. The same is true in both legal sources, such as the Digest and the Codex of Justinian, but also the inscriptions known mostly from the eastern part of the Roman Empire. This chapter began with two contrasting examples of adjudication, highlighting the emperor as both a bureaucrat and as a benevolent sovereign. These narrative differences and role-changes were the result of not only the increasingly formalized role of the emperor in administration, but also the different narratives that were offered to different audiences, such as the elite of Rome, the people of Rome, and the different groups of provincials. In the legal administration, the centrality of the emperor grew, but equally the consistency of the administration developed to account for the shortcomings of individual emperors. Not only was the emperor the chief judge, the main legislator and the head of administration, he was also tasked with a system of petitions from the populace. Whether the regularization of the system of petitions led to the increase in petitions, or that we simply have more answers to petitions due to the compiling of the Justinianic work, is not known, 146

Dig. 32.97.

Caracalla, the Severans, and the Legal Interest of Emperors 291 but the fact is that there are increasingly numerous rescripts in all areas of law. What sources like the apokrimata may give us are the raw petitions and their answers, while the Codex only furnished some of the legally relevant ones. In addition to the bureaucratic work of answering petitions, adjudication was equally a spectacle of power and justice, a way for the emperor to demonstrate his virtue and position as the good king. These visions were no doubt idealized, but when taken in common with the historiographical depictions of ‘bad’ emperors and their mismanagement, they illustrate the great conundrum of the imperial adjudication: are we to believe that the same emperors who are depicted variously as lazy, incompetent, scheming, unethical, cruel, and stupid in the historical writing were shrewd and diligent judges with professorial knowledge of the civil law? This problem boils down to the rescripts and their authorship. The preserved rescripts themselves were blunt legal advice, only seldom containing anything by way of reasoning. Most often they were clarifications of points of law, offering multiple solutions depending on the evaluation of the facts. Of course, how many petitions and rescripts there were and who resolved which of them (was there a preselection of cases, a distribution of cases based on whether they were legal or simply requests for beneficia) is unknown. Was the emperor in his physical person solving the cases, or rather the position of the emperor? In all of these issues, ideological preoccupations, communicative strategies, and expectations were mixed with the realities of a geographically vast administrative apparatus dealing with the tumultuous realities of an empire. Thus, what there was in the way of potential interpretations of the constitutio Antoniniana are necessarily grounded in the viewpoint of the observer. For Dio, a senatorial author who offers a monarchical vision of the emperor and empire, his view of the history of imperial adjudication was one of sovereign power and madness, where fear permeated the expectations of imperial justice. On the other hand, the vision of Ulpian, of a sovereign emperor raised above the law, was one of cosmopolitan ethics guiding the imperial law.

6 Conclusions The emergence of imperial adjudication was one of the most prominent changes from the Republic to the Principate. While it may be said that Augustus started the imperial practice of adjudication in the same way that Augustus started many things with the prefix imperial, that is where the consensus ends. What has been revealed in this study is the gradual process that lie behind it and the way that it operated contextually, with seemingly separate factors contributing to the growth of the shared conviction that not only was the emperor the supreme adjudicator but also that all could, in theory at least, appeal to him. My main focus has been on the narratives of adjudication, how imperial jurisdiction and the cases that were resolved either through formal or informal processes were discussed, and what kinds of different narratives were formed. Changes in narratives not only reflected factual and perceived changes in adjudication, they had also a constitutive power, where the spread of these narratives shaped the shared understanding of imperial adjudication. What this study has shown is that imperial adjudication, and with it, jurisdiction, grew in tandem with the changes of the Principate. There were no obvious precedents to the practice, but plenty of predecessors. Petitioners were drawn in by the power and prominence of Augustus and his successors, who in turn answer their requests. While there has been much debate about how to conceptualize imperial jurisdiction, what the longitudinal study of narratives has shown is how the prominence of different narratives varies and reflects the preoccupations of the era. Jurisdiction is clearly a definitional feature of the Principate, and the attempts at defining one are ultimately linked with the other. In Cicero’s narrative of Caesar and his adjudication, the fundamental conceptual change that was under way is clearly apparent. While the Republican framework still existed, the way that Cicero presented the

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choices facing Caesar demonstrate the fluidity of the situation, where guidance was sought not only from the Roman historical background but also from Greek traditions of single rule. What was evident was that the Caesar whom Cicero was addressing was no mere Republican magistrate; the speech was one presented to a sovereign, where justice and clemency were muddled and law relative. The three narratives of Augustus show how jurisdiction exposed the glaring discrepancies between the illusion of Republican continuity and the smaller and larger acts that contradicted it. What all of them, from the Res gestae to Ovid’s and Tryphera’s cases, show is how central the emperor had already become at this early date. All roads would lead to Augustus, and while some, especially Augustus himself, would still insist otherwise, the new reality was inexorably present. The illusion of Republican continuity created by Augustus was shattered by Tiberius and his successors. The explicitly formulated sovereignty of the emperor was not even thinly disguised by Seneca and others, who presented the emperor as father and god, showing his jurisdiction as a superhuman display of virtue and monstrous demonstration of vice. Tacitus presented the authority of the Senate as a sad submission of the once-proud order, while revealing the absurdity of the republican charade. The narrative of the mad emperors, the distortion of their historical memory, rather than any constitutional safeguards, would be the only limitation, beyond violence, of the use of the imperial power. The way that imperial power was defined in the lex de imperio Vespasiani showed the way precedent was fundamental in understanding what the emperor could or should do. By the reigns of Hadrian and the Antonines the promise of sovereign power would become clear to those living in the provinces, who would seek to use imperial power as their access to justice beyond local remedies. The image of the virtuous emperor-judge, already apparent in the reign of Trajan, was as much a description as it was an expression of hope and expectation. The way that the Severan emperors embarked on the exercise of justice shows how both the emperors and their subjects saw jurisdiction as a central role of the emperor. The narrative of sovereignty would entail not just one but two different emperor-judges, the reliable resolver of legal issues who would respond to perhaps several thousand petitions per year in writing, as well as the magnanimous great king who would present his virtue and justice in the resolution of dramatic cases in close connection with the people.

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Concerning the different sides of this development, one has to make a few distinctions that had a crucial impact on how the narratives of imperial adjudication were formed. First of all, there were clearly internal and external developments at play, matters that might be described as pull and push. These developments are crucial, as they form the context through which the narratives were created. As historical and legal representations, the narratives of jurisdiction were not only defined by the motives, authors, audiences, and backgrounds, but were also shaped by the pre-existing narrative traditions, such as Roman historiography and Greek kingship narratives. With pull, the reference is to factors that increased the readiness of the emperor and his staff to receive petitions, to adjudicate cases, and to resolve legal issues. The first of those was the Roman tradition of patronage, which meant that there was a ready model where persons of lower status would appeal to their superiors for help on different issues, including legal matters, often as a part of a long-standing arrangement. As part of these clientela relationships, Roman patrons were expected to know the law and to be able to give counsel and to adjudicate. The second factor was that of the cursus honorum, the career path in public service that Roman men of standing were expected to take part in, and where many of those magistracies were jurisdictional, the prime example being the praetorship. For Roman governors, acting as judge was a central part of the job description. It is no coincidence that the form of procedure adopted by the emperors, the cognitio, was that in use by the governors. The third factor was administrative control. For the emperors, the flow of lawsuits and petitions enabled them to keep track of developments in the provinces and exercise control over local elites and magistrates, as well as Roman officials and governors, not only by gathering information but also by punishing and showing displeasure (vital tasks in a vast empire). A fourth element that may have influenced the emperors in their jurisdiction, especially in the case of rescripts, was that of legal unification. Replies to administrators and private petitioners allowed the Roman legal administration to directly influence the law applied in the provinces. While it is not known how much these replies were circulated beyond their immediate recipients, they gave a way to issue legal rules on demand, where legislation was little used. On the side of push, we have the factors that led petitioners to direct their appeals to the emperors. The first was quite simply that the emperors had power that the petitioners hoped would be used to

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their advantage. Thus, the appeals presented to Roman warlords of the late Republic were part of the same dynamic as the appeals presented to emperors and even to other figures of authority, such as Roman centurions, in the provinces. Second, there was an existing narrative tradition of the ruler as judge that was especially strong in the Greek East, exemplified in the tradition of the narratives about the good king. Their salience was reinforced by the way that emperors used their executive power to dispose of their real and perceived enemies. The third significant factor was that of advantageous legal process. The imperial cognitio was free of procedural hindrances and obstacles that the formula procedure involved, giving hope that the case would not be dismissed on a technicality. Furthermore, appealing to the emperor allowed petitioners to reach beyond the local courts, which may have been dominated by their opponents (such as in the case recorded in the Knidos inscription). For an understanding of the development of imperial adjudication the changes in the narratives are important, as they, taken together, provide a crucial counter-argument to the established formalistic view that relies on expanding Dio’s account of the creation of jurisdiction under Augustus.1 One should not underestimate the significance of the sources and the narrative tendencies in them in the formation of scholarly interpretations. The way that Caesar’s rule and his jurisdiction are seen in scholarly works bears a great resemblance to the way Cicero portrays Caesar’s ambition and idealizes the Republic. The same applies to many individual scholars and their theories. Bleicken’s rise and fall of the jurisdiction of the Senate as an early stage of imperial jurisdiction mirrors the narrative of Tacitus and its focus on the senatorial elite and its tribulations. The strictly matter-of-fact approach of imperial rescripts and the legal authors was reflected in the legalistic way that imperial jurisdiction is portrayed by Honoré. As pointed out earlier, the monarchical presuppositions of Dio made their way into the scholarship of Mommsen and many others seeking a constitutional explanation. Though the development of narratives is a crucial way of approaching the developments leading to the emergence of imperial jurisdiction, it is important to recognize that these narratives also reflect factual developments in the Roman Empire. It is quite possible to present the 1 e.g. in Fanizza, L’amministrazione (1999), 11–60, the whole discourse is focused on expanding Cass. Dio 51.19.5–7.

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whole issue through the lens of empire and imperial material dynamics. For example, one may argue that the upkeep of the emperor and his administration and the armed forces that secured his hold on power demands money. In order to raise money, one has to have taxation and the administrative staff to execute it. The emperors also owned a great deal of the resources themselves, but to have something to tax there have to be crops growing, trade flowing, and other economic activities, which demand peace and security to operate. In addition to peace, the farmer and the merchant would need to trust that they will be able to keep most of the proceeds of their work, otherwise they will not invest in the land and trade. In order to secure this, the ruler needs to ensure that a modicum of legal protection is available, both in land tenure and in enforcement of contracts throughout the Empire. Thus, legal security would be the key to having an empire. Of course, things are a bit more complicated than that, but the point is that single explanations tend to be misleading. The importance of the study of narratives and their development is that it allows the examination of contradictory and contested developments from multiple angles. As we have seen, the Republican narrative that grew out of the constitutional tradition of the Republic changed shape, and became the way that the senatorial elite was able to discuss the power of the emperor. The emperor was, after all, one of them. As Dio acidly noted about Pertinax, the short-lived first emperor not to have been a senator, he would have lived longer if he had not been in such a hurry to become emperor before becoming senator (79.41). In contrast, the narrative of sovereignty, which emphasized the tradition of kingship and the emperor as the good king bringing justice to his subjects, became popular among the peoples in the provinces petitioning the emperor. Their appeals began over time to resemble demands, but the narrative roles of the quasi-divine emperor and the lowly petitioner remained. While it would be easy to dismiss the high-profile political cases where the emperors, with little or no legal procedure, sentenced political rivals to death or exile as legally irrelevant, they had considerable significance in the formation of the common understanding of imperial jurisdiction. The widely spread stories of an emperor humbling the powerful and demonstrating his power worked to spread the reputation that the final arbiter of the life and death of all, even the most highly ranked senator, was the emperor.

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The formation of jurisdictional narratives should be seen through their contexts. Litigants like Tryphera, who inscribed the answer from Augustus, had a motive for presenting the intervention of Augustus on her behalf. For Augustus, we may assume that he was ultimately motivated (beyond the desire to see justice done, which should not be underestimated) by the will to demonstrate his power in the provinces and to guide the administration. The sycophants, the panegyrists of emperors such as Aristides, Seneca, and Pliny, were not only advancing their own careers, but also sought to guide the emperors in their actions. What imperial functionaries like Suetonius and Dio were engaged in was a literary project that sought to present their understanding of historical developments and actors. For all of them, the focus was on the emperor alone, contributing to the rise of the narrative of sovereignty and, for Suetonius and Dio, its projection onto the past. The emergence of imperial adjudication will remain a contentious subject, but what this inquiry has sought to demonstrate is that, far from a simple exercise of jurisdiction, the space of justice was occupied by many different incarnations of the Roman emperor, where different narratives were formed and replicated.

APPENDIX

Known Instances of Imperial Adjudication from Caesar to Severus Alexander, and Their Sources The selection of cases is by necessity a product of arbitrary lines of distinction. The main rule for inclusion was that the text indicated that the emperor had resolved the legal issue at hand. In the case of rescripts, cases where the emperors often resolved the legal issue, leaving the ascertaining of facts to local magistrates or judges (a type of cassation), would in this case qualify, whereas an issue where the emperor would indicate an abstract rule would not. The arbitrariness comes from the fact that in many cases the hypothetical alternatives that the emperors are talking about may be extremely specific, leading to assumptions that these might have been actual cases. Such assumptions were rejected as leaps of faith. The cases were collected from a survey of sources, but using numerous previous studies to support the survey (Schilling, Millar, Honoré, Peachin, etc.). Each case has been individually verified. With regards to rescripts, a division has been made between adjudicative and legislative rescripts, based on the content, i.e. whether the text refers to a legal case at hand. Thus rescripts that uttered solely a legal rule or clarification without a reference to a case were excluded. Another division was that where the decision was that of the Senate, not the emperor. These were also excluded. Those proscribed or killed in the field with or without any kind of trial are equally excluded, even though they might be included in the text. Of the inscriptions, texts which are too fragmentary but might contain a judgment (such as FD III, fasc. IV/3, 330) have been excluded. Where sufficient information is not available, space has been left blank. The references to literature are not systematic. There are in total 774 cases listed. Those are divided as follows: Julius Caesar (11 cases), Augustus (24), Tiberius (6, of which rescripts: 1), Caligula (5), Claudius (17), Nero (9), Vitellius (1), Vespasian (1), Domitian (8), Trajan (10, of which rescripts: 2), Hadrian (30, of which rescripts: 5), Antoninus Pius (16, of which rescripts: 11), Marcus Aurelius (14, of which rescripts: 1, including four cases with Verus), Commodus (1), Pertinax (2), Septimius Severus (170, of which rescripts: 117 (including 138 cases with Caracalla), Caracalla (331, of which rescripts: 307, including 138 cases with Septimius Severus), Elagabalus (1), and Severus Alexander (257, of which rescripts: 256).

Emperor

Date

Description

Parties

Julius Caesar

47 BC

Tetrarchs of Galatia asked Caesar for restitution of lands conquested by Deiotarus, with M. Junius Brutus. Legal status unclear.

Deiotarus, tetrarch of Galatia

Julius Caesar

46 BC

Quintus Ligarius charged for unspecified offences as a member of the Pompeian side during the civil war in Africa by Quintus Tubero. See Ch. 1.

Quintus Ligarius

Julius Caesar

46 BC

Trial of civil war captives, Caesar halted the trial of his relative and had him killed secretly.

L. Julius Caesar

Subject-matter

unspecified offences (maybe perduellio or maiestas)

Decision

Sources

Literature

Cic. Brut. 21; Cic. Att. 14.1.2; Tac. Dial. 21.5–6.

Balbo, ‘Attività giudiziaria’ (2009), 557–8.

pardon

Cass. Dio 42.19–20; Cic. Fam. 6.13.3, 6.14; Cic. Lig.; Plut. Vit. Cic. 39.6–7; Quint. Inst. 5.13.20, 5.13.5–6, 5.13.31, 11.1.78, 11.1.80; Dig. 1.2.2.46.

See Ch. 1.

halted

Cass. Dio 43.12.3; Suet. Iul. 75.4.

Balbo, ‘Attività giudiziaria’ (2009), 558–9; B. Santalucia, Diritto e processo penale nell’antica Roma (Florence 1998), 187–8; Broughton, Magistrates of the Roman Republic (1952), 2:265, 305–6.

Julius Caesar

46 BC

At Cicero’s instigation, Caesar allowed C. Ateius Capito to inherit.

Julius Caesar

45 BC

A short mention of Caesar releasing persons accused of bribery.

Julius Caesar

45 BC

Deiotarus accused of conspiracy against Caesar.

Julius Caesar

45 BC

A trial of a veteran against his neighbours about land.

T. Antistius, C. Ateius Capito

inheritance

Cic. Fam. 13.29.

Millar, Emperor (1992 [1977]), 521.

crimen repetundarum?

release

Cass. Dio 43.47.4.

Balbo, ‘Attività giudiziaria’ (2009), 533; Broughton, Magistrates of the Roman Republic (1952), 2:305–7; B. Santalucia, Diritto e processo penale nell’antica Roma (Florence 1998), 157–60.

Deiotarus, tetrarch of Galatia

iudicium capitis

pardon

Cic. Deiot.; Cic. Fam. 9.12.2; Cic. Phil. 2.93.

See Ch. 1. Balbo, ‘Attività giudiziaria’ (2009), 534–5. D. Braund, Rome and the Friendly King: The Character of the Client Kingship (London 1984), 166–7.

unknown veteran

land ownership

in favour of the veteran

Sen. Ben. 5.24; Hyg. grom. p. 91.

Millar, Emperor (1992 [1977]), 518–19; Balbo, ‘Attività giudiziaria’ (2009), 552–3; Bringmann, ‘Caesar als Richter’ (1986), 72–88; M. Lemosse, ‘Un procès devant Jules César’, Iura 35 (1994), 86–90. (continued )

Continued Emperor

Date

Description

Julius Caesar

45 BC

Caesar gave judgment (ius dicentem) in the Forum from a tribunal.

Julius Caesar

45 BC

A man who pretended to be the son of Marius held a salutatio rivalling that of Caesar and was relegated from Italy by the decretum of Caesar. Caesar annulled the marriage of an ex-praetor, who had married a woman the very day after her divorce, although there was no suspicion of adultery.

Julius Caesar

Parties

Subject-matter

unnamed impostor

ex-praetor

marriage

Decision

Sources

Literature

Val. Max. 6.2.11.

Millar, Emperor (1992 [1977]), 518; JRS 63 (1973), 60.

relegation from Italy

Val. Max. 9.15.1.

Millar, Emperor (1992 [1977]), 519.

marriage was annulled

Suet. Iul. 43.

Julius Caesar

Caesar was approached by the parents of a girl who had been carried off. The man who violated her had been found guilty. As his verdict (decrevit) Caesar decided he should be relegated.

Parents of a girl

rape

relegation

Amm. Marc. 16.5.12.

Millar, Emperor (1992 [1977]), 516.

Livy, Epit. 134; Cass. Dio 53.22.5.

Millar, Emperor (1992 [1977]), 529.

See the list in Volkmann, Rechtsprechung (1969 [1935]), 14–24 on the people punished between 44 and 27 BC. Augustus

27 BC

Augustus conducted the conventus in Gaul, exercised jurisdiction, no details known.

Augustus

27/26 BC

C. Cornelius Gallus is accused of hybris before Augustus and later the Senate.

C. Cornelius Gallus

hybris

renuntiatio amicitiae

Peachin, ‘Judicial Powers’ (2015), 25; Volkmann, Rechtsprechung (1969 [1935]), 113, 115–16; Bauman, Crimen (continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature Maiestatis (1967), 180–3; Bleicken, Senatsgericht und Kaisergericht (1962), 32–3; F. Arcaria, Diritto e processo penale in età Augustea (Turin 2009), 5–113.

Augustus

26–24 BC Augustus heard a series of cases in Tarraco.

Augustus

23 BC

A man pretended to be the true son of Octavia and C. Claudius Marcellus is tried by Augustus.

Augustus

22 BC

Athenaeus of Seleucia was freed by Augustus from involvement in the plot of Fannius Caepio and L. Terentius Varro Murena, who were tried in questio de maiestate.

Athenaeus of Seleucia

Sen. Controv. 10, praef. 14.

Millar, Emperor (1992 [1977]), 529.

unclear

condemned to the galleys

Val. Max. 9.15.2.

Mommsen, Strafrecht (1899), 676.

treason

absolved

Str. 14.5.4 (670); Vell. Pat. 2.91.2.

Peachin, ‘Judicial Powers’ (2015), 26–7; Volkmann, Rechtsprechung (1969 [1935]), 56–7; Bauman, Crimen Maiestatis (1967), 184–190; K. M. T. Atkinson, ‘Constitutional and Legal Aspects of the Trials of Marcus Primus and Varro Murena’, Historia 9 (1960), 446–7, 469–72.

Augustus

20 BC

Envoys from Gadara complain about Herod.

Gadarenes, Herod

Augustus

16/13 BC

Cinna tried in cubiculum by Augustus for a plot.

Cn. Cornelius Cinna Magnus

Augustus

9 BC

Augustus punished some unnamed conspirators.

?

conspiring against Augustus

?

Cass. Dio 55.4.3.

Augustus

6 BC

Appeal on a killing in Knidos, see Ch. 2.

Tryphera and her husband

manslaughter, disturbing of the public peace

Tryphera found innocent

IG XII 3.174 = FIRA III 185.

suicide of envoys

Joseph AJ 15.10.3 (354–9).

Millar, Emperor (1992 [1977]), 437.

Sen. Clem. 1.9.

Peachin, ‘Judicial Powers’ (2015), 28; Beltrami, ‘De Clementia’ (2008), 39; Volkmann, Rechtsprechung (1969 [1935]), 84; Kelly, Princeps Iudex (1957), 40–2; Bauman, Crimen Maiestatis (1967), 56, 193–197; Braund, Seneca, De Clementia (2009), 258–96. Peachin, ‘Judicial Powers’ (2015), 29; Bleicken, Senatsgericht und Kaisergericht (1962), 77; Volkmann, Rechtsprechung (1969), 85; Kelly, Princeps Iudex (1957), 42; Bauman, Crimen Maiestatis (1967), 259. See Ch. 2. Wankerl, Appello (2009), 2–16; Oliver, Greek Constitutions (1989), 34–5. (continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

Augustus

6 BC

Augustus responds to charges brought by envoys from Cyrene, see Ch. 2.

Publius Sextius Scaeva for mismanagement, Aulus Stlaccius Maximus on defacing imperial statues.

mismanagement, maiestas

absolved, further investigation

SEG IX 8.

See Ch. 2. Peachin, ‘Judicial Powers’ (2015); Oliver, Greek Constitutions (1989), 40–55.

Augustus

2 BC

Trial of Augustus’ daughter, Julia, and those who had committed adultery with her, either as a family court or a public one.

Julia, her lovers, Antoninus

adultery, nomine laesarum religionum ac violatae maiestatis

exile (except to Antoninus, execution)

Tac. Ann. 3.24.2; Plin. HN 7.149.

Peachin, ‘Judicial Powers’ (2015), 30; Bauman, Crimen Maiestatis (1967), 198–240; Bleicken, Senatsgericht und Kaisergericht (1962), 33–4; Kelly, Princeps Iudex (1957), 7–8.

Augustus

6

Cassius Patavinus accused of threathening to murder Augustus.

Cassius Patavinus

conspiracy?

relegation?

Suet. Aug. 51.1.

Augustus

6

Accusation of spreading slandering letters about Augustus.

Junius Novatus

maiestas?

Fine

Suet. Aug. 51.1.

Peachin, ‘Judicial Powers’ (2015), 33; Kelly, Princeps Iudex (1957), 42–3; Bleicken, Senatsgericht und Kaisergericht (1962), 77–8, n. 4. 93; Bauman, Crimen Maiestatis (1967), 253.

Augustus

6

Aemilius Aelianus, from Cordoba, accused for slandering Augustus.

Aemilius Aelianus

maiestas

case dismissed

Suet. Aug. 51.1.

Peachin, ‘Judicial Powers’ (2015), 33; Bleicken, Senatsgericht und Kaisergericht (1962), 77–8.

Augustus

6

Agrippa Postumus charged for defaming Augustus and Livia, exiled. A senatus consultum confirmed his decision.

Agrippa Postumus

possibly treason

exile

Cass. Dio 55.32.1–2; Tac. Ann. 1.3.4; Vell. Pat. 2.112.7.

Peachin, ‘Judicial Powers’ (2015), 33; Kelly, Princeps Iudex (1957), 7–8.

Augustus

8

Cassius Severus accused of defamation.

Cassius Severus

defamation

exile

Tac. Ann. 1.72.3.

Peachin, ‘Judicial Powers’ (2015), 35; Bauman, Crimen Maiestatis (1967), 259–65; S. Rutledge, Imperial Inquisitions: Prosecutors and Informants from Tiberius to Domitian (London and New York, 2001), 210.

Augustus

8

Ovid relegated for unknown reasons, see Ch. 2.

Ovidius

perhaps relegatio or coercitio

exile

Ov. Tr. 2.131–3; Ov. Pont.; Ov. Ib.

See Ch. 2. Peachin, ‘Judicial Powers’ (2015), 34; Schilling, Poena extraordinaria (2010), 93–103; Volkmann, Rechtsprechung (1969 [1935]), 183–4; Liebs, Summoned to the Roman Courts (2012), 83–94; Millar, Emperor (1992 [1977]), 523. (continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Augustus

8

The younger Julia is accused because of her adultery. Her husband, L. Aemilius Paullus, is also charged with maiestas.

Julia, L. Aemilius Paullus, (D. Junius Silanus)

adultery, maiestas

exile

Augustus

10

A murder trial where Germanicus represents the defence, Augustus brought to judge due to potential bias.

murder

acquittal

Cass. Dio 56.24.7.

Millar, Emperor (1992 [1977]), 523.

Augustus

12

Augustus punished authors of defamatory books, possibly of maiestas.

?

defamation, maiestas?

?

Cass. Dio 56.27.1.

Peachin, ‘Judicial Powers’ (2015), 36; Bleicken, Senatsgericht und Kaisergericht (1962), 31.

Two accusations (and trials) of Julius Eurycles for violence and disorder in Achaea.

Julius Eurycles

violence and disorder

exile

Str. 8.5.5 (366); Joseph. BJ 1.26.4 (351); Plut. Mor. 207F.

Millar, Emperor (1992 [1977]), 236, 524; G. W. Bowersock, ‘Eurycles of Sparta’, JRS 51 (1961) 112.

Augustus

Sources

Literature Peachin, ‘Judicial Powers’ (2015), 34; Bauman, Crimen Maiestatis (1967), 242–3.

Augustus

A trial by Augustus on a forged will.

Augustus

Augustus gave a decree ordering C. Tettius, who had been disinherited in infancy, to take possession of his father’s estate, see Ch. 2.

C. Tettius

disinheritance

resolved

Val. Max. 7.7.3; Dig. 36.1.23pr.

Augustus

A case of the reversing disinheritance of the sons of Septicia, see Ch. 2.

Septicia and her sons

disinheritance

Val. Max. 7.7.3–4.

After he was freed in the regular court, Tiberius tried Antistius Vetus himself for maiestas.

Antistius Vetus

maiestas

Resolved by granting the sons got inheritance from their mother and her dowry deportation

Tiberius

21

forgery

Suet. Aug. 33.2.

Tac. Ann. 3.38.

Millar, Emperor (1992 [1977]), 237–8; Kelly, Princeps Iudex (1957), 12–13; Bleicken, Senatsgericht und Kaisergericht (1962), 71. Kelly, Princeps Iudex (1957), 84–6; Jones, ‘Imperial and Senatorial Jurisdiction’ (1954), 476; Volkmann, Rechtsprechung (1969 [1935]); Millar, Emperor (1992 [1977]), 239. Kelly, Princeps Iudex (1957), 84–6; Jones, ‘Imperial and Senatorial Jurisdiction’ (1954), 476; Volkmann, Rechtsprechung (1969 [1935]). Schilling, Poena extraordinaria (2010), 143.

(continued )

Continued Emperor

Date

Description

Tiberius

31–

After the death of Sejanus, an undefined number of people tortured and condemned to death by Tiberius, procedure unknown.

Tiberius

Fantastical story of a trial of a plot by the priests of Isis against a senatorial woman named Paulina involving sexual extortion, see Ch. 3.

Tiberius

Rescript in which a trial of adultery is postponed until the term of office ended.

Tiberius

Regular adjudication on a tribunal in the Forum, with the help of his consilium.

Parties

Subject-matter

Decision

Sources

Literature

Suet. Tib. 61.

A senator and his wife, an eques and the priests of Isis

plotting against Paulina

crucifixion

Tac. Ann. 2.85; Suet. Tib. 36.1; Joseph. AJ 18.65–80.

procedure

resolved

Dig. 48.5.39.10.

Cass. Dio. 57.7.2–6.

Millar, Emperor (1992 [1977]), 524; Schilling, Poena extraordinaria (2010), 132–3.

Tiberius

22

Accusation for the melting of a statue of the emperor.

Lucius Ennius

maiestas

none

Tac. Ann. 3.70.

Bauman, Lawyers and Politics (1989), 60.

Caligula

37

Livia Orestilla and C. Calpurnius Piso

adultery

relegation

Suet. Calig. 5.1; Cass. Dio 59.8.7.

Schilling, Poena extraordinaria (2010), 188–190.

Caligula

38–40

The trial of Orestilla and Piso, a high-society event after Caligula had taken her from their wedding and wed her himself for a few days. Trials of maiestas against enemies.

Suet. Calig. 30.2; Cass. Dio 59.10.4, 59.10.7, 59.11.6.

Schilling, Poena extraordinaria (2010), 190–2.

Caligula

39

Rhetor Carrinas Secundus tried and banished for accusing the emperor for tyranny.

Carrinas Secundus

maiestas?

relegation

Cass. Dio 59.20.6; Juv. 7.204 .

Schilling, Poena extraordinaria (2010), 190–2.

Caligula

39

Trial of adultery with Agrippina minor and Julia Livilla.

Ofonius Tigellinus

adultery

relegation

Cass. Dio 59.23.9; Schol. Juv. 1.155.

Schilling, Poena extraordinaria (2010), 200.

Caligula

39

A trial of conspiracy of Lepidus and the emperor’s sisters.

M. Aemilius Lepidus, Agrippina minor and Julia Livilla

maiestas

execution, relegation

Suet. Calig. 24.3; Cass. Dio 59.22.5–9.

Schilling, Poena extraordinaria (2010), 198–200.

maiestas

(continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Claudius

41

One of the murderers of Caligula sentenced to death.

Cassius Chaerea

murder, maiestas?

death

Suet. Claud. 11.1; Joseph. AJ 19.266–71; Cass. Dio 6.3.4.

Claudius

41

Acta Isidori, a trial relating to the strife between Greeks and Jews in Alexandria, see chapter 3.

Isidorus, King Agrippa

death?

BGU II 511, P.Lond. Inv. 2785, POxy. 42. 3021, P.Berol.8877, and P.Cairo 10448.

see Ch. 3.

Claudius

41–43

An undefined number of death sentences instigated by Messalina.

maiestas?

death

Tac. Ann. 11.1–3, 1.34–5; Cass. Dio 60.29.4–6a.

Schilling, Poena extraordinaria (2010), 205–8.

Claudius

42

One of the known charges of maiestas.

maiestas

death

Suet. Claud. 29.1, 37.2; Cass. Dio 60.14.2–4; Sen. Apocol. 11.2–5.

Schilling, Poena extraordinaria (2010), 209.

Claudius

45

repetundae?

exile

Cass. Dio 60.24.4.

Claudius

46

A governor tried and punished for graft. The conspiracy of Asinius Gallus.

maiestas

banishment

Suet. Claud. 13.2; Cass. Dio 60.27.5.

Schilling, Poena extraordinaria (2010), 210–11. Schilling, Poena extraordinaria (2010), 211.

C. Appius Silanus

Asinius Gallus

Literature

Claudius

47

Valerius Asiaticus was tried intra cubiculum.

Valerius Asiaticus

maiestas?

Tac. Ann. 11.1–2, 11.34–38.

Schilling, Poena extraordinaria (2010), 212–15.

Claudius

48

Messalina, her lover Silius, and their associates were tried by Claudius and executed.

Messalina, Vettius Valens, Pompeius Urbicus, Saufeius Trogus, Decrius Calpurnianus, Sulpicius Rufus, Juncus Vergilianus

treason

death

Tac. Ann. 11.34–5.

Schilling, Poena extraordinaria (2010), 215–16.

Claudius

48/49

The trial of incest instigated by Agrippina to ensure Nero’s accession.

L. Junius Silanus and Junia Calvina

incest

unknown

Sen. Apocol. 8.2, 10.4, 11.2–5; Suet. Claud. 27.2, 29.1; Tac. Ann. 12.3.4–8; Cass. Dio 60.31.7.

Schilling, Poena extraordinaria (2010), 219–20.

Claudius

52

Furius Scribonianus accused of conspiracy with Chaldaeans.

Furius Scribonianus

maiestas

exile

Tac. Ann. 12.52, 14.46.

Schilling, Poena extraordinaria (2010), 224.

Claudius

52

A complex issue involving Jews, Samaritans, and the procurator Cumanus with procedural difficulties.

Jews, Samaritans, procurator Cumanus

Joseph. AJ 20.6.2–3 (131–6), BJ 11.12.6–7 (242–6).

Millar, Emperor (1992 [1977]), 231, 378.

(continued )

Continued Emperor

Description

Parties

Subject-matter

Claudius

Trial in the Forum for corrupting women, see Ch. 3.

unknown eques

obscenity

Claudius

Of the many trials in the Forum, Suetonius mentions in passing ten cases, ranging from forgery, obscenity, citizenship, evidence to family.

Claudius

Reversing sentences of maiestas and relegations given by Caligula. A freedman who ordered informers against his patron is re-enslaved.

Claudius

Claudius

Date

Maiestas trial.

Decision

Sources

Literature

Suet. Claud. 15.4.

Millar, Emperor (1992 [1977]), 524–5.

Suet. Claud. 14–15.

maiestas

Cass. Dio 60.3.9–4.2.

Dig. 37.14.1.

L. Vitellius

maiestas

Tac. Ann. 12.42.

Claudius/Nero

55

A boundary dispute in Sagalassos in Pisidia settled by a letter (sent by Claudius) instructing a legate. Publius Celer was accused by the province of Asia.

imperial tenants

Nero

57

Nero

61

Pardoning of Pedanius Secundus’ freedmen, see Ch. 3.

freedmen

Nero

63

The trial of apostle Paul.

Nero

64

Nero

65

property

resolved

Smallwood, Documents (1967), 387 (=SEG XIX 765).

none, defendant died of old age

Tac. Ann. 13.33.1.

Millar, Emperor (1992 [1977]), 526.

SC Silianum

pardon

Tac. Ann. 14.42–5.

Schilling, Poena extraordinaria (2010), 241–3.

Paulus

seditio?

death

Millar, Emperor (1992 [1977]), 510–11.

Nero accused Christians of the fire of Rome.

Christians

arson and/or other hatred for humankind

bestiis subicere, crux, vivi exurere

Acts 22.25–6, 23.27, 25.6–22; Lactant. De mort. Pers. 2.6; Euseb. Hist. eccl. 2.22–5. Tac. Ann. 15.44.2–5.

Nero banished Cassius Longinus, the founder of the Cassian school of lawyers, to Sardinia.

Cassius Longinus

Publius Celer

relegation

Dig. 1.2.2.51–2.

Liebs, Summoned to the Roman Courts (2012), 95–124; K. Büchner, ‘Tacitus über die Christen’, Aegyptus 33 (1953), 181–92. Honoré, Emperors and Lawyers (1994), 10.

(continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

Nero

65

Piso’s conspiracy, many were killed or killed themselves without process, some tried by Nero himself, some by the Senate.

C. Calpurnius Piso’s associates

coup

death, exile

Tac. Ann. 15.66–78; Suet. Ner. 36.2.

Schilling, Poena extraordinaria (2010), 252–5.

Nero

66

A strange accusation of incest and magic against a senatorial family brought on by informers.

Junia Lepida, Vulcacius Tullinus and Cornelius Marcellus

incest, magic

pardon

Tac. Ann. 16.8.2–3.

Millar, Emperor (1992 [1977]), 510.

L. Fabricius Veiento charged for composing libellous books.

L. Fabricius Veiento

libel, selling imperial property

Vitellius had killed 120 pretorians who had confessed murdering Galba (by asking for rewards from Otho).

murderers of Galba

maiestas

Nero

Vitellius

69

Tac. Ann. 14.50.

death

Suet. Vit. 10.1.

Schilling, Poena extraordinaria (2010), 260.

Vespasian

Banishment of Demetrius the Cynic and Hostilianus the Stoic, see Ch. 3.

Demetrius, Hostilianus

maiestas

banishment

Suet. Vesp. 13; Cass. Dio 65(66).13.1.

Schilling, Poena extraordinaria (2010), 262–3.

Domitianus

82

Accusation of immorality against four Vestal Virgins.

the Oculata sisters, Varronilla, high priestess Cornelia

incest

execution, Cornelia freed

Suet. Dom. 8.1–3; Cass. Dio 67.4.2, 67.17.

Grelle, ‘Correctio morum’ (1980); Schilling, Poena extraordinaria (2010), 270–1.

Domitianus

89–91

Continuation of the process against the Vestals.

high priestess Cornelia, Celer, Valerius Licinianus

incest

execution, Licinianus banishment

Suet. Dom. 8.3; Plin. Ep. 4.11.

Schilling, Poena extraordinaria (2010), 272–3.

Domitianus

91

Tried due to a prophecy that he would become emperor.

Mettius Pompusianus

maiestas

banishment

Suet. Dom. 10.3; Cass. Dio 67.12.2.

Schilling, Poena extraordinaria (2010), 266.

Domitianus

91

Ex-consul tried for unspecified reasons.

Acilius Glabrio

maiestas

banishment

Suet. Dom. 10.2; Cass. Dio 67.14.3; Juv. 4.94.

Schilling, Poena extraordinaria (2010), 266.

Domitianus

93

A plot against Domitian involving Salvidienus Orfitus, the future emperor Nerva and a man simply known as Rufus.

Salvidienus Orfitus, Nerva, and Rufus

maiestas

banishment

Suet. Dom. 10.2; Philostr. V A 7.8–11.

Schilling, Poena extraordinaria (2010), 266–7.

Domitianus

95

Nero’s freedman first chosen as Domitian’s secretary and then tried.

Ephaphroditus

maiestas

banishment

Suet. Dom. 14.4; Cass. Dio. 67.14.4.

Schilling, Poena extraordinaria (2010), 266–7.

(continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

Domitianus

95

The consul Flavius Clemens and his wife tried for religious offences.

Flavius Clemens and wife

maiestas

death, banishment for wife

Suet. Dom. 15.1; Cass. Dio 67.14.1.

Schilling, Poena extraordinaria (2010), 267.

After his death, Domitian condemned the wife of Vettius Bolanus for poisoning.

wife of Vettius Bolanus

poisoning

Stat. Silv. 5.2.75–97, esp. 91–3.

Millar, Emperor (1992 [1977]), 525.

Plin. Ep. 6.31.

Sherwin-White, Letters of Pliny (1966), 391.

Plin. Ep. 6.31.

Sherwin-White, Letters of Pliny (1966), 391; Schilling, Poena extraordinaria (2010), 285.

Domitianus

Trajanus

107

A case of forgery involving an imperial freedman, see Ch. 3.

Sempronius Senecio and Eurythmus

forged will

Trajanus

107

An appeal from a governor of a charge of adultery against the wife of a military tribune who had had an affair with a centurion, see Ch. 3.

Gallitta, centurion

adultery

condemned

Trajanus

107

A charge against a local magnate of Ephesus by an informer.

Claudius Ariston

Trajanus

107

A calumny process against Montanius Atticinus after freeing Lustricius Bruttianus from accusation.

Lustricius Bruttianus, Montanius Atticinus

Trajanus

109

Process against Christians, Pliny’s queries and response of Trajan.

Trajanus

A series of issues, where first Trajan compelled a father who had maltreated his son to emancipate him, then after the son’s death prevented the father from claiming his property.

father and son

calumnia

maltreatment and emancipation of son, inheritance

cleared of the charge and acquitted

Plin. Ep. 6.31.

Sherwin-White, Letters of Pliny (1966), 391; Syme, ‘People in Pliny’ (1968), 135–151; Millar, Emperor (1992 [1977]), 524.

banishment

Plin. Ep. 6.22.

Schilling, Poena extraordinaria (2010), 283–4.

Plin. Ep. 10.96.

Schilling, Poena extraordinaria (2010), 285–7.

Dig. 37.12.5.

Millar, Emperor (1992 [1977]), 531–2.

resolved

(continued )

Continued Emperor

Description

Parties

Subject-matter

Decision

Sources

Literature

Trajanus

A retrial of a case of forgery and poisoning was brought to Trajan, who delegated it Sex. Attius Suburanus.

mother and dead son’s freedman

forgery and poisoning

delegation

Plin. Ep. 7.6.8–13.

Millar, Emperor (1992 [1977]), 525; SherwinWhite, Letters of Pliny (1966).

Trajanus

Varenus was prosecuted by the Bithynians, was first brought to the consuls, who on the request of the provincials referred the case to the emperor. Rescript to Didius Secundus on confiscation by the fisc, Trajan’s sentence unknown except for being lenient.

Varenus

Trajanus

Trajanus

Date

Rescript in which Trajan approves Taurinus’ mitigation of the penalty of Marus Evaristos according to culpability.

Plin. Ep. 7.6.

relegation, confiscation

Dig. 48.22.1.

penalty

Dig. 48.19.5.

Hadrianus

117

When Hadrian became emperor, he banished and then killed Apollodorus the architect, who had criticized his plans under Trajan.

Apollodorus

artistic disagreements

banishment

Cass. Dio 69.4.1–3.

Hadrianus

120

Letter of Hadrian to the Gerusia of Ephesians confirming the sentence of the governor about misappropriation of money.

Gerusia of Ephesus, debtors

misappropriation of money

affirmed

Hermes 4 (1870), 178–81.

Oliver, Greek Constitutions (1989), n. 71.

Hadrianus

131

Hadrian’s rescript about resolving a case about restoring slaves to the petitioner. Hadrian mentions that he only yesterday wrote replied to him about the same matter. Contains instructions to magistrate Flavius Juncinus in Egypt.

Apollonides, Claudius Antoninus

P.Teb. II 286.

Peachin, Iudex (1996), 87; Oliver, Greek Constitutions (1989), n. 72.

(continued )

Continued Emperor Hadrianus

Hadrianus

Date

Description Legitimacy of a child born 11 months after her husband’s death. In a rescript quoted verbatim over the SC Silanianum Hadrian wrote that a slave girl who had not protected her mistress even by crying out should be punished with death.

Hadrianus

Hadrian ordered that inheritance is restored to a son due to father’s frauds.

Hadrianus

A rescript in which Hadrian admonishes the recipient for

Parties

slave girl

Subject-matter

Decision

Sources

Literature

legitimacy of a child

affirmed legitimacy

Gell. NA 3.16.12.

Millar, Emperor (1992 [1977]), 239.

SC Silanianum

death

Dig. 29.5.1.28.

Vivius Cerealis, Vivius Simonides

Dig. 36.1.52(50).

inheritance, manumission

orders action taken

Dig. 40.12.43.

Rizzi, Imperator cognoscens decrevit (2012), 272–9.

delays and orders him to appoint an arbiter for dividing inheritance and manumission. Hadrianus

Hadrianus

Hadrian prescribed in a rescript a fine of 40 pieces of gold for those who bury bodies within the city.

burying bodies within the city limits

fine

Dig. 47.12.3.5.

Hadrian relegated a man for three years for taking someone else’s wife to live with him when his own wife was away on travels. Hadrian confirmed governor Ignatius Taurianus’ decision to relegate a man for five years for causing the death of another per lasciviam.

adultery

relegation

Dig. 24.2.8.

killing

relegation

Dig. 48.8.4.1.

(continued )

Continued Emperor Hadrianus

Hadrianus

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

Hadrian punishes a father for the abuse of patria potestas, see Ch. 4. Hadrian reappointed a son serving in the military as heir.

father

adultery, killing

deportation

Dig. 48.9.5.

see Ch. 4.

Dig. 5.2.28.

Peachin, Iudex (1996), 23; Rizzi, Imperator cognoscens decrevit (2012), 341–9.

Hadrianus

Hadrian reaffirmed a decision to repeat munera if there are no other suitable candidates.

Hadrianus

Hadrian resolved a case regarding the use of a forest as a legacy by stating that the right to use fruits should be included in the legacy.

Dig. 50.4.14.6.

legacy

resolved

Dig. 7.8.22.pr.

Hadrianus

A subscript of Hadrian that in order to gain patria potestas over the child, a father-to-be should have asked for it at the same time as he petitiond for citizenship.

Hadrianus

Emperor Hadrian sentenced Umbricia to five years’ relegation for treating her slaves with great brutality for trivial reasons.

Umbricia

Hadrianus

The Hadriani Sententiae contains 13 instances of imperial decisions, of which some are requests for beneficia, others adjudicative. No. 2: Hadrian rejects a requests for a

private petitioners

patria potestas

treatment of slaves

relegation

Gai. Inst. 1.94.

Peachin, Iudex (1996), 22.

Lex Dei 3.3; Ulpian, De officio proconsulis 8; Dig. 1.6.2. = Coll. 3.3.4.; Dig. 24.2.8.; Dig. 48.9.5.

Liebs, Summoned to the Roman Courts (2012), 139–54; Millar, Emperor (1992 [1977]), 525.

Millar, Emperor (1992 [1977]), 261, 532–3, 540.

(continued )

Continued Emperor

Date

Description convicted man’s congiarium. Nos. 3, 13: following a complaint of neglect, he orders a son to care for his father under threat of loss of citizenship. No. 4: a case of usury is delegated to the pretorian prefect. No. 6: a man petitioned Hadrian for the restoration of his father from exile. Hadrian told him to allow time for him to consult the (imperial) commentarii and then return. No. 7: a conflict about share of profits. No. 9: orders a

Parties

Subject-matter

Decision

Sources

Literature

tutor not to manumit. No. 10: he denies a request about congiurarium. No. 11: a woman sued her curator for stealing his congiarium and not making payments. After interrogation, the curator is ordered to pay as much as he can. A rescript of Hadrian about complaint of false evidence.

Hadrianus

Julius Tarentinus

evidence

delegated with instructions

Dig. 42.1.33.

resolved: restrictive interpretation of testator’s intention

Cod. Iust. 6.26.1.

Antoninus Pius

146

Rescript.

Secundus

inheritance portions

Antoninus Pius

152

Alfius Julius received a subscription to his libellus from Antoninus Pius about the proper treatment of slaves.

Alfius Julius

treatment of slaves

Coll. 3.3.5–6 (Ulpian, De officio proconsulis 8).

Peachin, Iudex (1996), 22; Liebs, Summoned to the Roman Courts (2012), 139–54.

(continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Antoninus Pius

155

Rescript 28.9 to Manilius.

Manilius and female adversary

suit on a deposit

commands to prove a deposit and delegates to trial judge

Cod. Iust. 2.1.1.

Antoninus Pius

155

Rescript on how to prove that money was depisited.

Manilius

evidence

rule clarified, matter delegated to trial judge

Cod. Iust. 2.1.1.

Antoninus Pius

A response from Antoninus Pius to judge named Publicius, explaining that an earlier subscriptio by Hadrian was not a binding precedent.

Publicius

absence of one party from a trial

Antoninus Pius

In rescript, Pius denies a claim to past interest due.

Antoninus Pius

Telephorus, representing a group of freedmen, asked for upkeep on basis on fideicommissum.

Telephorus and a group of freedmen

delegation to consuls

Literature

Cod. Iust. 7.43.1 (s.d.).

Peachin, Iudex (1996), 23, 27–8; Coriat, ‘Technique du rescript’ (1985), 329.

Dig. 22.1.17.1.

Peachin, Iudex (1996), 22.

Dig. 34.1.3.

Millar, Emperor (1992 [1977]), 545; X. Pérez López, La delegación de jurisdicción en el derecho romano (Madrid 2011), 346, n. 8.

Antoninus Pius

Authorizes the consuls to grant arbitrators to examine accounts for the emancipation of Epaphroditus.

Antoninus Pius

Rescript.

Salvius

Antoninus Pius

Rescript.

Antoninus Pius

Rescript affirming Frontinus’ responsibilities regarding an inheritance. Ulpianus Damascenus asked for permission for her deported mother to leave him a legacy. Pius made an exception, while reaffirming the rule that deported persons may not leave a will.

Antoninus Pius

delegation to consuls

Dig. 35.1.50.

fideicommissum

instructions to judge to grant it

Cod. Iust. 6.54.1.

freedmen of Sextia Basilia

interpretation of will

resolved by analogical interpretation and granting the freedmen sustenance and clothing

Cod. Iust. 6.37.1.

Claudius Frontinus

inheritance

Ulpianus Damascenus

legacy

resolved

Dig. 4.2.18.

Peachin, Iudex (1996), 21–2.

Dig. 48.22.16.

Millar, Emperor (1992 [1977]), 261, 540.

(continued )

Continued Emperor

Description

Parties

Subject-matter

Decision

Sources

Antoninus Pius

Rescript.

Aurelius, a veteran

evidence of promise to pay interest

ratified even though not mentioned in the instrument

Cod. Iust. 4.32.1.

Antoninus Pius

A rescript allowing birdcatchers to hunt on other people’s land without permission.

bird-catchers

Antoninus Pius

A rescript about the Rhodian sea law, see Ch. 4.

Eudaemon of Nicomedia

piracy

delegation

Dig. 14.2.9.

Antoninus Pius

Rescript to proconsul Aelius Marcianus, instructing him to investigate the treatment of fleeing slaves of Julius Sabinus.

Julius Sabinus, slaves

treatment of slaves

forced sale

Dig. 1.6.2; Lex Dei 3.3; Ulpian, De officio proconsulis 8.

Liebs, Summoned to the Roman Courts (2012), 139–54.

Interpretation of will, a lengthy debate between advocates and the

heirs of Valerius Nepos and the fisc

testament

testator’s intention

Dig. 28.4.3pr, 34.9.12, 34.9.16.2; Philo Leg. 350; Plin. Ep. 4.22.3, 6.22.5, 6.31.12; Cass.

Rizzi, Imperator cognoscens decrevit (2012), 151–174; Honoré, Emperors and Lawyers

Marcus Aurelius

Date

166

Dig. 8.3.16.

Literature

Peachin, Iudex (1996), 22.

Marcus Aurelius

174/5

Marcus Aurelius

175

Marcus Aurelius

emperor, see Ch. 4.

Dio 76(77).17.1, 57.7.2–6, 52.33.3, 69.7.1; SHA Marc. 22.4; Cod. Iust. 9.51.1; Cod. Theod. 8.15.1.

(1994), 17–19; Crook, Consilium Principis (1955), 71; Millar, Emperor (1992 [1977]), 163, 237–238, 533; JRS 56 (1966) 80–1; Nörr, ‘Reskriptenpraxis’ (1981), 12; Wankerl, Appello (2009), 68–94; Coriat, Prince législateur (1997), 99, 198.

A lengthy letter by Marcus to Athenians, resolving numerous issues, see Ch. 4. After the revolt of Avidius Cassius, Marcus sent the senatorial participants for trial to the Senate, but tried others in his own court.

SEG XXIX 127.

Wankerl, Appello (2009), 17–68; Oliver, Greek Constitutions (1989).

Cass. Dio 71(72).28.2–3 (268); Coll. 15.2.5.

Millar, Emperor (1992 [1977]), 521.

Dig. 48.7.7.

Liebs, Summoned to the Roman Courts (2012), 155–164; Peachin, Iudex (1996), 23; Rizzi, Imperator cognoscens decrevit (2012), 205–19.

A hearing where Marcus scolded Marcianus, a creditor, for taking hold of property without permission.

Avidius Cassius

revolt

Marcianus

vis privata

loss of claim

(continued )

Continued Emperor

Date

Description

Parties

Marcus Aurelius

Reduction of the amount of stipulatio.

Marcus Aurelius

A ruling regarding Herodes Atticus.

Marcus Aurelius

A decree ruling on the heir’s responsibility for legates.

Marcus Aurelius

A judgment by Marcus (mentioned by Scaevola) in his auditorium in a case where the divorced wife of a senator from Sparta named Brasidas had left a fideicommissum to their sons, on whether it should be paid.

Marcus Aurelius

A decree over the estate of

Subject-matter

Decision

Sources

Literature

Fortunatus

resolved, execution to governor

Dig. 22.1.17.1.

Peachin, Iudex (1996), 22.

Herodes Atticus

punishment of freedmen

Philostr. V S 2.560–2.

a will

Brasidas’ sons

fideicommissum

Fideicommissum should be paid.

Dig. 35.2.11.2, 36.1.19.3.

Millar, Emperor (1992 [1977]), 533; Rizzi, Imperator cognoscens decrevit (2012), 220–7.

Dig. 36.1.23.pr.

Millar, Emperor (1992 [1977]), 533; Rizzi, Imperator cognoscens decrevit (2012), 279–88.

Dig. 5.3.25.16.

Millar, Emperor (1992 [1977]), 533.

Pythodorus and what should be included. Marcus Aurelius

Rescript about the interpretation of will and the interest of the fisc; will the cancellation of one heir affect legacies?

Marcus Aurelius and Verus

In a letter to Voconius Saxa, approving his examination of Primitivus, a slave, who had falsely confessed to a homicide so he wouldn’t be returned to his owner. They recommend that he should be sold under the condition that he would never be returned to his former master.

Quintus Voconius Saxa (proconsul in Asia minor)

testament

in favour of legatees

Dig. 34.9.12, 34.9.16.2.

treatment of slaves

selling of the slave and not returned to his former master.

Dig. 48.18.1.27.

Liebs, Summoned to the Roman Courts (2012), 149–50.

(continued )

Continued Emperor

Description

Parties

Subject-matter

Marcus Aurelius and Verus

Flavia Tertulla had been married to her uncle for 40 years and asked that she be considered legitimate under law. The emperors made an exception and granted a beneficium as against the strict provisions of the law.

Flavia Tertulla

legitimacy of a child

Marcus Aurelius and Verus

Ruling on bonorum possessio on a grandfather’s freedman’s property, when the said freedman is accused of a capital charge. L. Apronius Saturninus wanted excusatio from tutela. He appealed and the case was heard again.

Marcus Aurelius and Verus

Date

Decision

Sources

Literature

Dig. 23.2.57a.

Millar, Emperor (1992 [1977]), 548.

Dig. 37.14.17.pr.

L. Apronius Saturninus

excusation from tutela

Frag. Vat. 168; Dig. 49.1.1.2.

Millar, Emperor (1992 [1977]), 545.

Commodus

181

The petition of the coloni of the imperial estate Saltus Burunitanus.

Pertinax

193

Septimius Severus

196

Rescripts: Cod. Iust. 4.28.1 (23.3. to Atilius, approving his suit against a debtor); 6.27.1 (22.3. to slave Lucretius, releasing him as compulsory heir). Rescript 10.12. to Jovianus.

Septimius Severus

200

Rescript 25.11. to Philinus.

Septimius Severus

200

A decision by Severus regarding swineherds.

P.Oxy. 42.3019.

Septimius Severus

200

A decision of Severus on taxes.

P.Oxy. 51.3614.

Septimius Severus

Senator Cassius Clemens was tried before Severus as an adherent of Pescennius Niger, justified his actions and lost only half his property.

harassment

prohibition, without punishment

CIL VIII 10570.

Hauken, Petition and Response (1998), 2–28.

Jovianus and his former slave

responsibility for actions as slave

rejected Jovianus’ claim

Cod. Iust. 4.14.1.

Millar, Emperor (1992 [1977]), 490.

Philinus and Licinius fronto

inheritance

upheld an agreement between brothers

Cod. Iust. 2.3.2.

treason

confiscation

Cass. Dio 74.9 (333).

Millar, Emperor (1992 [1977]), 237, 522.

(continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

Septimius Severus

An appeal from the prefect to unnamed emperor (from Paul’s Decrees, thus likely Severus) on the master’s responsibility of the slave’s actions.

A slaveowner and his slave

slave exceeding his authority

owner’s liability upheld

Dig. 14.5.8.

Honoré, Emperors and Lawyers (1994), 23; Millar, Emperor (1992 [1977]), 239–239; Wankerl, Appello (2009), 110–129; Rizzi, Imperator cognoscens decrevit (2012), 381–394.

Septimius Severus

Ruling on a trial by unnamed emperor (from Paul’s Decrees, thus likely Severus) about interest, where property had been purchased from a fisc and the buyer had not gained possession. Emperor ruled that the if the fruit had not been enjoyed no interest could be imposed.

property

in favour of applicant

Dig. 22.1.16.1.

Millar, Emperor (1992 [1977]), 534; Rizzi, Imperator cognoscens decrevit (2012), 227–32.

Septimius Severus

Appeals case of Severus (not named, but from Paul’s Decrees) about appointment of colleague in tutela.

tutela

appeal rejected

Dig. 26.5.28 (Paul. 2 decr.), 26.7.53 (Paul. 2 decr.)

Millar, Emperor (1992 [1977]), 535; Wankerl, Appello (2009), 129–43.

Septimius Severus

A decree of Severus on ordering interest to be paid by tutors turning money for their own use.

tutors

evidentiary

Dig. 26.7.7.4.

Millar, Emperor (1992 [1977]), 535.

Septimius Severus

Severus ruled that slaves may be tortured to provide evidence for use of property.

slave

evidentiary

Dig. 27.3.1.3.

Millar, Emperor (1992 [1977]), 535.

Septimius Severus

Appeals case over the inheritance of Pactumeius Androsthenes, who appointed as heir the daughter of Pactumeius Magnus. She was rumoured to be dead and

a will

appeal succesful, with limitations

Dig. 28.5.93 (Paul 2 decr.); SHA Commod. 7.

Honoré, Emperors and Lawyers (1994), 20, 22; Millar, Emperor (1992 [1977]), 534; Coriat, Prince législateur (1997), 545; Rizzi, Imperator cognoscens decrevit (2012), 349–56.

Pactumeius Magnus and his daughter Pactumeia, and Novius Rufus.

(continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

secondary heir Novius Rufus gained the inheritance. She petitioned the emperor to be reinstated. Septimius Severus

Case over the wills of Clodius Clodianus and the effective acceptance of inheritance, argued by both Papinian and Paul. The emperor is not named, but from Paul’s Decrees.

Clodius Clodianus

testament

Rejected wills, intestacy

Dig. 29.2.97 (Paul 3 decr.)

Honoré, Emperors and Lawyers (1994), 23–4; Millar, Emperor (1992 [1977]), 534; Rizzi, Imperator cognoscens decrevit (2012), 357–63.

Septimius Severus

A case resolved by unnamed emperor (in Paul’s Decrees) over the will of Paula and its provisions.

Paula, heirs Callinicus and his daughter Juventiana

testament

will accepted

Dig. 32.27pr (Paul 2. decr.)

Rizzi, Imperator cognoscens decrevit (2012), 305–15.

Septimius Severus

A case of appeals due to interpretation of the will of Pompeius Hermippus over what his daughter should inherit after her brother. Emperor not named.

Pompeius Hermippus, his son Hermippus and daughter Titiana

testament

appeal succesful, with limitations

Dig. 32.27.1 (Paul 2 decr.)

Millar, Emperor (1992 [1977]), 238–9, 534; Honoré, Emperors and Lawyers (1994), 20, 22; Coriat, Prince législateur (1997), 96, 545; Rizzi, Imperator cognoscens decrevit (2012), 175–9.

Septimius Severus

Case over the will of Julianus Severus, specifically over legacy to be paid by his tenant Julius Maurus, involving also the fisc. Emperor not named, but from Paul’s Decrees.

heirs of Julianus Severus and Maurus

testament, debt

in favour of Maurus’s heir

Dig. 32.17.2 (Paul 2. decr.)

Millar, Emperor (1992 [1977]), 534; Rizzi, Imperator cognoscens decrevit (2012), 315–21.

Septimius Severus

A complex appeals case over the cancellation of sale of land between the heirs and successors of original parties, including buyer Aemilius

Ovinius, Rutiliana

restitutio in integrum

ruling in favour of Rutiliana

Dig. 4.4.38 (Paul 1 decr.)

Liebs, Summoned to the Roman Courts (2012), 165–75; F. Musumeci, ‘Ancora sulla in integrum restitutio di Rutiliana’, Cunabula iuris (Milan 2002), 245–61; Honoré, Emperors and Lawyers (1994), 21–2; Millar, (continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Laurianus, his daughter Rutiliana, and the seller Ovinius and a new buyer Claudius Telemachus.

Literature Emperor (1992 [1977]), 238–9; Wankerl, Appello (2009), 95–110; Coriat, Prince législateur (1997), 82, 506, 543; Rizzi, Imperator cognoscens decrevit (2012), 363–81.

Septimius Severus

Severus’ ruling on restitution to a tutor.

Septimius Severus

Ruling on the effects of a father’s will to his daughter’s inheritance. Emperor not named.

testator and his heirs

Septimius Severus

A ruling on appeal from the governor on a series of wills and disinherited children and an aunt. Emperor not named.

Fabius Antoninus, Junia Valeriana, their daughter Honorata, son Antoninus, and his daughter Fabia Valeriana

rejected

Dig. 36.1.1.13.

Millar, Emperor (1992 [1977]), 535.

testament

ruling in favour of the son

Dig. 36.1.76pr (Paul 2 decr.)

Rizzi, Imperator cognoscens decrevit (2012), 288–94; Honoré, Emperors and Lawyers (1994), 23; Millar, Emperor (1992 [1977]), 535.

inheritance

Honorata gained the inheritance

Dig. 36.1.76.1 (Paul 2 decr.)

Honoré, Emperors and Lawyers (1994), 24; Millar, Emperor (1992 [1977]), 238–239; Wankerl, Appello (2009), 153–64; Coriat, Prince législateur (1997), 515, 545; Rizzi, Imperator cognoscens decrevit (2012), 257–66.

Septimius Severus

A case over the freedom of Eumeria, who was manumitted by Aulianus, who was in debt to the fisc. A procurator sought to claim her as a slave. Emperor not named.

Septimius Severus

Case over the freedom of a slave woman manumitted in a will as well as fideicommissa.

Septimius Severus

A trial on the sureties given by Petronius Thallus and others for Aurelius Romulus, in debt to the fisc. Emperor not named.

Septimius Severus

A suit on the responsibility over the debts of Moschis to the fisc, either to her heirs or the buyers of her lands. Emperor not named.

Eumeria

status

freedom upheld

Dig. 40.1.10 (Paul 2 decr.)

Millar, Emperor (1992 [1977]), 534; Coriat, Prince législateur (1997), 391, 515; Rizzi, Imperator cognoscens decrevit (2012), 394–403.

status, fideicommissa

freedom upheld

Dig. 40.5.38 (Paul 3 decr.)

Millar, Emperor (1992 [1977]), 535; Rizzi, Imperator cognoscens decrevit (2012), 195–205.

Petronius Thallus and others, the fisc

sureties

limited obligations

Dig. 46.1.68 (Paul 3 decr.)

Millar, Emperor (1992 [1977]), 534.

Faria Senilla and others, the heirs of Moschis and the fisc

debt

the fisc should sue the heirs first

Dig. 49.14.47pr (Paul 3 decr.)

Rizzi, Imperator cognoscens decrevit (2012), 232–41.

(continued )

Continued Emperor Septimius Severus

Septimius Severus

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

Aemilius Ptolemaeus complained about being overcharged by the fisc over his lease. Emperor not named. A trial over the wills of Statius Florus by heirs Pompeius and Faustinus. Emperor not named.

Aemilius Ptolemaeus, the fisc

lease

obligation lowered to that set by the lease

Dig. 49.14.47.1 (Paul 3 decr.)

Rizzi, Imperator cognoscens decrevit (2012), 195–205.

Pompeius and Faustinus

testament

upheld the second will

Dig. 49.14.48pr (Paul 2 decr.)

Millar, Emperor (1992 [1977]), 534; Wankerl, Appello (2009), 182–92; Coriat, Prince législateur (1997), 87; Rizzi, Imperator cognoscens decrevit (2012), 328–41.

Septimius Severus

A claim by a secondary heir over a confiscated estate. Emperor not named.

Cornelius Felix, the fisc

inheritance, debt

rejected

Dig. 49.14.48.1 (Paul 2 decr.)

Rizzi, Imperator cognoscens decrevit (2012), 298–305.

Septimius Severus

A complex case with numerous legal opinions over the obligations and benefits of tenants (mainly rights to crops), involving the fisc.

Flavius Stalticus, the fisc

property

for Stalticus

Dig. 49.14.50 (Paul 3 decr.)

Honoré, Emperors and Lawyers (1994), 24; Rizzi, Imperator cognoscens decrevit (2012), 247–57.

Septimius Severus

Interpretation of a clause on the dissolution of marriage. Emperor not named.

marriage

husband should not keep dowry

Dig. 50.16.240 (Paul).

Millar, Emperor (1992 [1977]), 535.

Septimius Severus

In a suit, Severus decided that in Asia those with 5 children would not be forced into holding the provincial priesthood.

munera

accepted the claim

Dig. 50.5.8pr (Papin., 1 resp.)

Peachin, Iudex (1996), 24, n. 59.

Septimius Severus

An appeals case over the interpretation of successive wills. Emperor not named.

The children of Julius Foebus: Foebus, Heraclia, and Policrates

a will

rejected

Dig. 36.1.83 (Paul 2 decr.)

Rizzi, Imperator cognoscens decrevit (2012), 294–8; Wankerl, Appello (2009), 165–72.

Septimius Severus

An oral trial proceeding on appeal by Paul (the emperor is not named). The daughter and freedman of Hosidius argue over his inheritance.

Valeriana, Antiochus

inheritance

Dig. 32.97 (Paul. 2 decr.)

Rizzi, Imperator cognoscens decrevit (2012), 322–27; Wankerl, Appello (2009), 144–53; Coriat, Prince législateur (1997), 96.

(continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

Septimius Severus

An appeal by Camelia Pia over division of estate (freedmen) between co-heirs. The emperor is not named.

Camelia Pia, co-heir

inheritance

accepted

Dig. 37.14.24 (Paul. 1 decr.), 10.2.41 (Paul. 1 decr.)

Wankerl, Appello (2009), 193–202.

Septimius Severus

A florid petition via the prefect of Egypt about exemption of liturgies, fairly curt reply to do them.

Aurelius, son of Cairemon

Liturgies

denied

P.Mich. 9.529, 25–38 = SB 14.11875.

Septimius Severus

A papyrus containing three documents about privileges of the Arsinoite Paenistae, the first ordering Sarapion son of Didymus to preserve their exemption from liturgy.

Arsinoite Paenistae

liturgies

affirmed

P.Oxy. 42.3018, 1–5, 6–10.

Oliver, Greek Constitutions (1989), 105, 241, 242.

Septimius Severus and Caracalla

194

Rescripts: Cod. Iust. 2.23.1 (26.9. to Myro, defining the consequences of restitution of rights in his case).

Septimius Severus and Caracalla

195

Rescript: Cod. Iust. 9.1.1 (11.3. to Silvanus, commanding him to be tried first for his own crimes before accusing others).

Septimius Severus and Caracalla

196

Rescripts: 2.18.1 (5.10. to Sopatra, denying action on negotiorum gestio); 6.39.1 (1.10. to Januaria, granting action against heirs); 6.54.3 (to Symphorus, granting preference to a claim of possession).

Septimius Severus and Caracalla

197

Rescripts: Cod. Iust. 2.11.3 (23.12. explanation to (continued )

Continued Emperor

Date

Description Metrodorus on a judge’s suspending punishment of infamy); 2.18.2 (to Rofina, granting action of expenses for appointment of guardians); 2.30.1 (to Annia, granting conditionally the continuation of a lawsuit on manumission); 2.50.1 (to Chilo, explaining that the heir of centurion Valerianus have the right to ask for restitution of rights if he died in service); 3.36.1 (to Marcianus,

Parties

Subject-matter

Decision

Sources

Literature

granting action in partition if inheritance has not been divided); 4.28.4 (to Hilarus, granting action on a pledge); 5.25.4 (to Sabinus, granting action on paternal support); 5.47.1 (to Tertius, settling the issue whether Fuscinus may be removed from guardianship without damage to reputation); 6.46.1 (to Claudia, conditionally recognizing the nullity of a fideicommissum); 6.49.1 (18.3. to Probus, granting action on a fideicommissum); 6.50.1 (13.5. to Priscus rejecting claim to restitution on the (continued )

Continued Emperor

Date

Description Falcidian fourth); 7.4.1 (17.2. to unknown, directing a claim for testamentary manumission); 8.2.1 (25.12. to Justus, directing a claim for inheritance to competent judges); 8.16.1 (to Oplatus, defining the extent of a general pledge); 8.32.1 (1.9. to Hilarus, granting him an action on a pledge).

Septimius Severus and Caracalla

198

Rescripts: Cod. Iust. 2.11.4 (24.2. to Venustianus, deciding against a sentence of infamy against the ineffectually

Parties

Subject-matter

Decision

Sources

Literature

Septimius Severus and Caracalla

199

relegated Posidonius); 2.11.5 (to Ambrosius, telling him that committing iniuria marked him with infamy and thus liable for flogging); 2.38.1 (3.3. to Florentius and others, granting them aid in the restitution of rights to inheritance); 4.28.2 (25.2. to Sophia, barring conditionally Zenodorus from resorting to the SC); 6.53.1 (30.5. to Agrippa, granting a right to demand annuity annually). Rescripts: 2.18.2 (22.1. to Hadrianus, granting action on negotiorum (continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

P.Stras. I.22, 1–9 = BGU I.267.

Oliver, Greek Constitutions (1989), 223A–B.

P.Oxy. 6.1020.

Oliver, Greek Constitutions (1989), 220–2.

gestio); 3.33.1 (26.9. to Pasidonius, limiting liability for debts of deceased wife); 6.25.1 (1.10. to Alexander, refusing to accept daughter as heir). Septimius Severus and Caracalla

199/200

A decision on longi temporis praescriptio.

Juliana daughter of Sasthenianus

Septimius Severus and Caracalla

199/200

Rescripts to two petitioners for assistance in a trial due to immature age, referring to the provincial governor. Same text contains a fragment of a rescript about defrauding.

Varus, son of Damasaeus, Procunda

minor

approved

Septimius Severus and Caracalla

199/201

Septimius Severus and Caracalla

200

Septimius Severus and Caracalla

200

Possibly an apokrima regarding surrendering of property and being freed from liturgies. Application to be relieved from liturgy due to relinquishing of property.

liturgies, cessio bonorum

liturgies, cessio bonorum

granted

BGU II.473.

Oliver, Greek Constitutions (1989), 224.

P.Oxy. 12.1405, 1–14; P.Oxy. 43.3105, 1–10.

Oliver, Greek Constitutions (1989), 240 (A & B).

Rescripts: Cod. Iust. 2.36.1 (15.10. to Longinus, authorizing the fisc to compensate if official Rufinus had sold the property of minor Probus too cheaply); 3.31.2 (1.7. to soldier Marcellus, giving a cascading list of alternatives to a sale of property from an inheritance); 4.55.2 (26.10. to Sezus Nedymus, (continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

P.Col. 123; P.Amh. 63.7–12.

Oliver, Greek Constitutions (1989), 226–38, see Ch. 5.

defining the rights of re-seizure of a slave); 6.2.1 (21.4. to Theogenes, defining the actions available for sale concluded through slaves); 8.37.1 (15.4. to Secundus defining the validity of a stipulatio); 8.40.1 (15.10. to exiled Lysia, limiting his liability to his creditors). Septimius Severus and Caracalla

200

A collection of 13 apokrimata, see Ch. 5.

Septimius Severus and Caracalla

201

Rescripts: Cod. Iust. 4.28.4 (20.4. to Cyrilla granting action on a loan to a filiusfamilias); 5.58.1 (to Strato, outlining

conditions for suing on issues of guardianship). Septimius Severus and Caracalla

202

Septimius Severus and Caracalla

203

Septimius Severus and Caracalla

204

Rescripts: Cod. Iust. 2.3.2 (12.2. to Claudius, on defence against creditors on an inheritance). Rescripts: 2.18.5 (19.6. to Trophimus, denying action for the cost of agency as a freedman against patron’s daugters); 2.20.1 (13.5. to Clementina, granting action on violation of fides); 3.8.1 (19.11. to Marcellina, instructing her on how to gain inheritance). A rescript (known as sacrae litterae) affirming that a Roman senator is

munera

T. Drew-Bear, P. Herrmann and W. Eck, ‘Sacrae Litterae’, Chiron 7

Oliver, Greek Constitutions (1989), 256 A-B. (continued )

Continued Emperor

Septimius Severus and Caracalla

Date

204

Description not required to entertain public quests, found in Latin and Greek versions in Phrygia, Ephesos, Paros and other places. Rescripts: Cod. Iust. 2.43.1 (28.7. to Romanus and others, telling the they should have appealed instead of seeking restitution of rights); 4.2.1 (1.7. to Modestinus, denying as unjust a request to be liberated from inherited debt); 5.15.1 (20.7. to Dionysia, instructing her to prove that a

Parties

Subject-matter

Decision

Sources (1977) 355–363 = C. P. Jones, ‘Sacrae Litterae’, Chiron 14 (1984) 93–9 = CIL III 14203; Bulletin de correspondance hellénique 102 (1978), 435–7.

Literature

dowry was paid before reclaiming it); 5.62.1 (1.5. to Aviola, denying exemption from guardianship due to being eunuch); 5.62.2 (25.8. to Aventianus and Cosconius, instructing them how to be liberated from part of their curatorship); 6.22 (29.11. to merchants, reaffirming that stolen property must be returned); 6.3.1 (30.12. to Romanus, commanding him to do agreed services as freedman); 6.26.2 (27.7. to Phronima, granting her inheritance after her son); 6.28.1 (continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Cosonia Hilaria

gift

Decision

Sources

(26.6. to Fabius, defining extent of testamentary disinheritance); 6.53.2 (18.7. to Priscus, on the ownership of an inherited farm); 6.53.3 (28.7 to Aelia, resolving whether Pontianilla’s claim to a legacy was transmitted to her heirs); 8.12.2 (31.5. to Lucius, resolving a suit on a pledge). Septimius Severus and Caracalla

205

Rescript about action on a donation.

Septimius Severus and Caracalla

205

Rescripts: Cod. Iust. 3.1.1 (1.4. to Clemens, allowing him to

Frag. Vat. 268.

Literature

sue a debtor for interest); 3.33.2 (10.5. to Felix defining that an owner’s pledge does not influence his usufruct); 4.32.5 (7.7. to Ultumius Sabinus and others, upholding their defence against creditors, including city defenders); 5.53.1 (1.8. to Asclepiodotus defining the rights of a guardian); 5.69.1 (12.10. to Pompeianus, limiting his obligations as guardian); 6.9.2 (to Crispinus, setting a time limit to a claim of inheritance); 6.46.2 (22.7. at Antioch to Gallicanus, clarifying a (continued )

Continued Emperor

Date

Description curious case of bonds and divorces); 6.55.1 (3.11. to Crispina, upholding her inheritance); 7.21.2 (13.9. to Maximus, rejecting a posthumous claim of slave status); 8.15.2 (14.10. to Latina, resolving issue of litigation over gardens and pledges on them); 8.25.1 (20.4. to Proculus, upholding his manumission); 8.44.2 (26.2. to Quarta, allowing her to sue over her eviction by co-heirs from

Parties

Subject-matter

Decision

Sources

Literature

Septimius Severus and Caracalla

206

land); 9.32.1 (20.4. to Euphrata, denying action on crime but delegating issue of inheritance to judges). Rescripts: Cod. Iust. 5.14.1 (6.1. to Nica, upholding a condition on a dowry); 5.37.1 (30.4. to Modestus clarifying the responsibilities of curators and delegating the issue to iudex); 5.62.3 (15.3. to Crispianus, rejecting a claim for liberation from curatorship due to expiration of appeal); 7.53.1 (30.1. to Justinus, revising a decision of iudex on pledges). (continued )

Continued Emperor

Date

Description

Septimius Severus and Caracalla

207

Rescripts: 2.12.4 (to Saturninus, restoring his right to a legal defence); 2.18.6 (to Gallus, granting action against a curator); 3.26.2 (20.9. to Arista, barring the transfer of a case to the proconsul); 5.18.2 (4.4. to Aquila, restoring her dowry from the fisc); 5.28.1 (16.7. to Sperata, granting action against a tutor); 5.37.2 (30.4. to Timones and Helpidophorus, denying action agains a cocurator); 8.16.2 (27.6. to Rogatus, validating a

Parties

Subject-matter

Decision

Sources

Literature

Septimius Severus and Caracalla

208

pledge); 8.28.1 (26.4. to Marcellus, nullifying testamentary limitation to creditor’s rights). Rescripts: Cod. Iust. 3.28.4 (8.3. to Soterichus and others, rejecting claims on their freedom); 7.45.1 (30.5. to magistrate Quintilianus, ordering him to retry a case from his predecessor); 6.35.2 (25.4. to Verus, advising on a suit regarding Palla’s inheritance); 8.13.4 (30.5. to Bellius, rejecting a claim of coaxed pledge); 8.40.3 (16.8. to Maximus, revisiting a case (continued )

Continued Emperor

Date

Description on a surety wrongly resolved by procurators).

Septimius Severus and Caracalla

209

Septimius Severus and Caracalla

210

Rescripts: Cod. Iust. 8.18.1 (20.4. to Marcellina, rejecting as useless her appeal on a pledge). Rescripts: Cod. Iust. 3.1.2 (27.12. to Valerius, granting him a new action against his guardian); 3.32.1 (5.5. at Eboraceum to Caecilia, granting validity of the purchase of slaves by her slaves); 6.4.1 (2.7. to Secunda, upholding the rights of the fisc to

Parties

Subject-matter

Decision

Sources

Literature

Septimius Severus and Caracalla

210

Septimius Severus and Caracalla

211

Septimius Severus and Caracalla

213

confiscated property); 8.37.2 (4.11. to Diocletes, granting right to sue on stipulatio); 8.53.1 (27.6. to Lucius, granting action in rem against a donor). Rescript regarding donations under patria potestas and inheritance.

Atilius Natalus

inheritance

Frag. Vat. 295.

Rescript: Cod. Iust. 6.37.3 (26.4. to Victorinus, clarifying the interpretation of a will). Rescript: Cod. Iust. 3.32.2 (21.10. to Aristaenetus, affirming his ownership of a building); 4.5.1 (30.7. to Mucianus, authorizing recovery of (continued )

Continued Emperor

Date

Description money wrongly paid by father); 4.5.2 (30.7. to Secundina, authorizing recovery of money).

Septimius Severus and Caracalla

214

Rescripts: Cod. Iust. 3.13.1 (12.1. to Severus and others: the procurator was not competent judge, but you chose him so deal with it).

Septimius Severus and Caracalla

215

Rescripts: Cod. Iust. 6.54.4 (29.6. to Protagora defining on how to secure the rights of wards to inheritance); 7.2.4 (25.11. to Anchilaus, freeing him from

Parties

Subject-matter

Decision

Sources

Literature

accounting for his father’s transactions as slave). Septimius Severus and Caracalla

Rescripts: Cod. Iust. 2.31.1 (to Honoratus, granting action of restitution of rights as minor); 3.15.2 (dated at 4.2.294 at Sirmium (?) to Nica, on where to accuse for kidnapping); 4.32.4 (to Apronia Honorata, rejecting a claim for interest on a pledge); 4.35.1 (to Leonida, authorizing an action on mandate by the governor); 4.61.1 (To Victorinus, upholding his manumission); 5.4.2 (to Taphina, approving her (continued )

Continued Emperor

Date

Description marriage); 7.21.1 (to Niconis, rejecting a belated claim of free status in a case of inheritance); 7.45.1 (to Aeliana, rejecting her appeal on an interest); 7.58.1 (to Firmus, accepting a new trial on a forged will); 8.10.1 (to Timotheus, permitting the construction of a bath); 8.46.1 (to Titius, permitting a trial before a governor on the management of an estate); 10.1.1 (to Atticus and Severus, conditionally

Parties

Subject-matter

Decision

Sources

Literature

upholding a gift by their father); 10.41.1 (to Septimius Zenoras, freeing him from liturgies on behalf of infant son); 11.32.1 (to Herculianus, upholding his purchase of a land from the city); 12.33.1 (to Antonius, warning him of applying for an imperial position during a lawsuit). Septimius Severus and Caracalla

The emperors judged (iudicaverunt) a case concerning the will of a senator named Cocceius Cassianus in favour of his freedwoman Rufina and her daughter.

Cocceius Cassianus, Rufina and her daughter

testament, illegitimacy

Dig. 34.9.16.1.

Millar, Emperor (1992 [1977]), 534.

(continued )

Continued Emperor

Date

Description

Parties

Subject-matter

Decision

Sources

Literature

P.Berol. inv. 7346, verso, fragm. C, 19–20 = SB 4.7366.

R. Taubenschlag, ‘The Imperial Constitutions in the Papyri’, JJP 6 (1952), 9.

Septimius Severus and Caracalla

A fragmentary decision by Severus and Caracalla on a papyrus.

Septimius Severus and Caracalla

An appeal by Acilius Glabrio over a a previous case decided by the emperors in auditorio. They did however allow this, after two previous hearings, to one Percennius Severus.

Acilius Glabrio

appeal

denied

Dig. 4.4.18.1.

Millar, Emperor (1992 [1977]), 534.

Septimius Severus and Caracalla

Appeal by Percennius Severus over two previous sentences was accepted to be heard in auditorio.

Percennius Severus

appeal

accepted

Dig. 4.4.18.2.

Millar, Emperor (1992 [1977]), 534.

Septimius Severus and/or Caracalla

Decision by cognitio on appeal from an imperial procurator over the debt of Surus. Use of torture by procurator criticized and the case dismissed due to lack of evidence. Emperor not named.

Surus, heirs of debtor

appeal

denied

Dig. 48.18.20 Paul (3 decr.)

Honoré, Emperors and Lawyers (1994), 21; Wankerl, Appello (2009), 172–82; Rizzi, Imperator cognoscens decrevit (2012), 403–12.

Septimius Severus and/or Caracalla

Decisions to deport Metrodorus and relegate Philoctetes, both to an island for harbouring criminals. Emperor not named.

Metrodorus, Philoctetes

criminal law

condemned

Dig. 48.19.40 (3 decr.)

Honoré, Emperors and Lawyers (1994), 20.

Caracalla

205

Rescripts: Cod. Iust. 2.11.8 (20.2. to Ulpia, on theft and infamy); 4.15.2 (April, to Marcus, requiring the debtors of an insolvent to pay); 5.72.1 (29.12. to (continued )

Continued Emperor

Date

Description Valeus, on proving a case against a guardian); 9.1.2 (20.9. to Ingenuus, on guardians suing Secundinus for forgery).

Caracalla

211

Rescripts: 2.4.1 (1.5. to Celerius, on compromises with curators); 3.28.5 (6.10. to Aelius, allowing to continue father’s testament complaint); 3.34.1 (11.11. to Calpurnia, allowing an action against obstructive building); 6.45.1 (28.12. to

Parties

Subject-matter

Decision

Sources

Literature

Saturnina, releasing her from obligation to marry); 7.59.1 (30.9. to Julianus, rejecting his plea for disregarding his confession of debt). Caracalla

212

Rescripts: Cod. Iust. 1.18.1 (25.4. to Maximus, helping a soldier to defend himself in a lawsuit); 4.25.1 (25.4. to Hermetus, liability for a slave’s loan); 4.32.6 (11.2. to Antigonus, on satisfying a resisting creditor); 5.16.1 (11.1. to Tryphaena, denying the return of gifts by intestate father); 5.28.2 (11.4. to Sabinianus, on (continued )

Continued Emperor

Date

Description appointment of guardians); 5.37.3 (19.8. to Eumusus, on crediting for necessary expenses); 5.43.1 (13.8. to Domitia, allowing accusing a freedman guardian); 5.51.1 (27.9. to Leo, on how to prove accounts of guardianship); 5.75.1 (5.1. to Mucianus, granting action against magistrates for liability of appointing tutors); 6.3.4 (18.4. to Valerianus, on

Parties

Subject-matter

Decision

Sources

Literature

recovering money from his freedman); 6.3.5 (13.5. to Terentius, on obligations of his mother’s freedman); 6.21.1 (9.9. to Florus, on his brother’s inheritance); 6.24.2 (17.6. to Calcilius, on his father’s inheritance); 6.42.1 (16.8. to Demetrius, on proving Demetrius’ will); 6.47.2 (17.5. to the freedmen of Cassianus, on payment of legacy); 8.8.1 (8.4. to Justinus, on his status and right to sue); 8.17.2 (11.5. to Chrestus, on prioritizing rights); 8.35.1 (18.7. to Claudius, (continued )

Continued Emperor

Date

Description on liabilities of the debtor of an inheritance); 8.43.1 (11.2. to Apronius, saying that he already answered the guestion about his sister’s debtor); 8.44.4 (22.7. to Georgius, on sale and pledge on land); 8.44.5 (17.9. to Patroina, on redeeming pledges on land purchased); 9.22.1 (7.3. to Severinus, on suing a woman for selling a child); 9.23.1 (5.9. to Vallatius, reaffirming him as his father’s

Parties

Subject-matter

Decision

Sources

Literature

heir); 9.47.2 (26.6. to Valerius, saying that his procurator had no jurisdiction and thus the sentence is void); 9.50.1 (21.12. to Aquila, her suicidal brother’s fortune goes to the heirs). Caracalla

212/213

Philiscus, a Thessalian sophist, was accused of evading liturgies in his home city and tried before Caracalla. Caracalla was very irritated.

Philiscus

exemption from city obligations

Caracalla

212/213

An inscribed rescript of Caracalla about limiting military requisitions, with instructions to local officials.

inhabitants of Takina

requisitioning

Epigraphica Anatolica 10 (1987) 133–142.

Caracalla

213

Rescript on how to compel payment from debtors.

Septimia Marcia

debt

Epitome codicum Gregoriani et Hermogeniani Wisigothica 12.1.

Philiscus lost his case

Philostr. V S 11.30.

Millar, Emperor (1992 [1977]), 231–2, 234, 439; Nörr, ‘Reskriptenpraxis’ (1981), 34–5.

(continued )

Continued Emperor

Date

Description

Caracalla

213

Rescripts: Cod. Iust. 1.9.1 (30.6. to Claudius Tryphonius, rejecting recovery of Cornelia Salvia’s donation to Antiochian Jews); 2.3.5 (25.7. to Demagoras, release of an obligation); 2.3.7 (30.7. to Julius Maximus, about inheriting your debtor); 2.4.2 (11.8. to Lutatia, on compromise about inheritance); 2.7.1 (29.9. to Dolon, collusion by advocate); 2.8.1 (20.12. to Claudius, on prosecuting fiscal

Parties

Subject-matter

Decision

Sources

Literature

cases); 3.8.2 (23.7. to Magnilla, referring a descent case to governor); 3.31.4 (23.2. to Vitalianus, about the division of expenses in a inheritance case); 3.31.5 (27.5. to Postumiana, about expenses in a case about restoration of inheritance); 3.33.3 (30.7. to Antonianus, on the inheritability of usufruct); 3.37.1 (1.3. to Lucianus, allowing action on the sale of portion of inherintance); 3.44.1 (25.10. to Dionysia, restoring a son’s grave); 4.21.1 (9.9. to Septima (continued )

Continued Emperor

Date

Description Marcia, payment of debt by debtors); 4.29.2 (11.8. to Nepotiana, denying assistance concerning suretyship of women); 4.29.3 (11.8. to Servatus, granting mother’s exception); 4.65.2 (1.7. to Epidius Epictetus, granting an action on hire); 5.12.2 (30.7. to Alcibiades, granting action on dowry stipulatio to Palla, the applicant’s sister); 5.14.2 (22.3. to Theodota,

Parties

Subject-matter

Decision

Sources

Literature

denying an empty claim); 5.16.2 (no date, to Marcus, granting return of slave fraudulently donated by soldier to ‘housekeeper’); 5.16.3 (4.3. to Epictetus, reaffirming gift of slaves to wife); 5.36.1 (25.7. to Tiberianus and Rufus, about ending a temporary appointment of guardian); 5.37.4 (20.9. to Procula, about punishing the guardian of the applicant’s daughter); 5.39.1 (24.6. to Septimus, advising suing Juliana’s curator); 5.41.1 (25.7. to Sextus, granting an excuse to a (continued )

Continued Emperor

Date

Description guardian); 5.44.1 (20.7. to Miltiades, allowing him to sue his wards); 5.51.2 (7.7. to Praesentinus, on how to sue guardians); 5.54.2 (19.2. to Valentinianus and Maternus, on his father’s failed curatorship); 5.54.3 (5.7. to Avita, telling to sue the heirs of her former guardian); 6.21.2 (19.2. to Septimus, on inheriting camp property); 6.21.3 (1.11. to Vindicianus, reaffirming the testament of veteran Valerian);

Parties

Subject-matter

Decision

Sources

Literature

6.25.2 (8.3. to Cassia, rejecting her request to inherit her mother despite not fulfilling the terms); 6.29.1 (28.6. to Brittianus, on a broken testament); 6.38.1 (8.8. to Antipatra, on what is part of a legacy); 6.44.1 (23.2. to Septimus, on the interpretation of enclosed will); 7.26.1 (13.8. to Flavianus, on reclaiming slaves); 7.52.1 (18.2. to Stallator, on res iudicata); 7.73.2 (19.10. to Valeriana, on the return of her dowry); 7.73.3 (30.12. to Juliana, on suing her husband for money); 7.75.1 (14.10. to Caesia, (continued )

Continued Emperor

Date

Description on recovering fraudulently transferred property); 8.17.3 (11.10. to Varus, on priority of pledge); 8.35.2 (15.2. to Julius, on defending his house); 9.20.1 (21.3. to Placidus, that his father may sue the kidnapper of his slave); 9.20.2 (no date, to Aurelius, on suing a corruptor of slave); 9.23.2 (13.12. to Attibius, forgiving falsification of will); 10.3.1 (7.1. to Agortia, advising on how to restore property lost).

Parties

Subject-matter

Decision

Sources

Literature

Caracalla

213

Rescript on responsibility due to paternal debt.

Caracalla

214

Rescripts: Cod. Iust. 2.37.1 (2.5. to Prunicus, appeal is denied against contracting party Zenodora, a minor); 4.2.2 (25.4. to Hermogenes, allowing action on stipulatio); 4.58.1 (30.5. to Decentius Veromilius, granting action on a fraudulent sale of defective slave); 4.65.3 (6.1. to Flavius Callimorphus, setting conditions of eviction of renter); 5.31.1 (4.2. to Chrysantha, on appointing a guardian for a lawsuit); 5.31.2 (5.7. to

Iulius

inheritance

Appendices legis Romanae Wisigothorum duae 1.5.

(continued )

Continued Emperor

Date

Description Epaphroditus, on freedman’s duty to have guardians appointed); 5.40.1 (5.11. to Miltiades, allowing one guardian to defend a minor in court); 6.30.1 (July, to Titia, releasing her from her father’s obligations); 6.31.1 (15.7. to Mucianus, on whether he abstrained from inheritance); 7.16.2 (5.2. to Verenianus, on slave status); 7.53.3 (no date, to Agrippa, expediting execution of judgment); 8.20.1 (18.11. to

Parties

Subject-matter

Decision

Sources

Literature

Venuetus, that his portion is not compromised by his brother’s actions); 8.40.6 (21.6. to Polla, that his father may not be sued on Cornelius’ loan). Caracalla

215

A rescript about curators.

Caracalla

215

2.24.1 (4.4. to Marciana, granting action for restoration of inheritance); 2.53.2 (19.9. to Dionysius, conditionally reinstating a case, pending verification by governor); 3.28.7 (26.6. to Secundinus, allowing complaint of testament); 3.34.2 (1.7. to Martial, about water

Priscianus

curator

Consultatio veteris cuiusdam iurisconsulti 9.8.

(continued )

Continued Emperor

Date

Description servitutes); 4.6.1 (27.7. to Callisthenes, ordering restoration of dowry); 4.7.2 (17.11. to Longinus, rejecting the restoration of a house given for dishonourable purposes); 4.14.2 (30.8. to Baeticus, rejecting an action on peculium after service); 4.19.2 (17.11. to Auluzanus, referring a claim of possession to regular courts); 4.26.3 (29.6. to Artemon, on how to recoup money loaned to Prisca’s slave); 4.30.3

Parties

Subject-matter

Decision

Sources

Literature

(29.6. to Demetria, on defence against fraudulent debtors); 4.49.1 (10.6. to Aeliana, granting an action on sale, not in rem); 5.18.3 (27.8. to Hastilia, what happens if husband is found to be a slave); 5.31.3 (12.7. to Atlanta, on appointment of new guardian); 5.31.4 (13.7. to Domninus, a creditor may ask for appointment of guardian); 5.32.1 (1.10. to Aristobula, on magistrate’s responsibility to appoint guardian); 5.37.5 (July, to Rufinus, compelling guardians to comply); 5.43.2 (13.1. to (continued )

Continued Emperor

Date

Description Longinus, allowing him to sue fraudulent curators); 5.51.3 (29.6. to Vitalius, estimating the actions of his curator); 5.53.3 (1.7. to Priscianus, on the liability of his defaulted curator); 6.2.3 (8.9. to Secundus, on suing his stepfather for theft); 6.31.2 (27.6. to Severus, on whether he abstrained from inheritance); 6.37.7 (11.7. to Faustus, affirming joint ownership of a Fortidianian farm); 6.42.2 (27.7. to Eupatrius,

Parties

Subject-matter

Decision

Sources

Literature

granting defence on a trust); 6.42.3 (9.12. to Rufinus, about Chrysis’ inheritance); 6.46.3 (10.7. to Aurelius, depriving Aluzanus’ legatee of inheritance); 7.29.1 (25.6. to Zoilus, rejecting acquisition of slaves); 7.73.4 (29.6. to Quintus, on protecting a farm from debts); 8.16.3 (30.3. to Restitulus, affirming that burial of his son consecrated the ground); 8.17.4 (9.12. to Silvanus, resolving his dispute over the property of Socianus with the municipality of Heliopolis); 8.38.1 (1.7. to Paulinus, stipulation of a minor is not (continued )

Continued Emperor

Date

Description binding); 8.40.7 (1.7. to Erotis, about his obligations through mandate); 8.46.2 (17.2 to Marania, on ownership and paternal power); 9.6.2 (26.9. to Eutychianus, that a suit of forgery is not extinguished if only one of the accused dies); 9.16.1 (31.1. to Aurelius Herculianus and other soldiers, that accidental killing is unpunished, Coll. 1.8.1); 9.32.2 (25.4. to Primus, allowing him to sue his stepfather for wasting his inheritance).

Parties

Subject-matter

Decision

Sources

Literature

Caracalla

216

Caracalla heard the case of the Goharians, see Ch. 5.

Caracalla

216

Rescripts: Cod. Iust. 2.6.1 (1.8. to Artemidorus, rejecting further appeal from a decision of the prefect of Egypt); 2.18.7 (10.3. to Euphrata, on inherintance); 3.44.2 (1.5. to Hilarianus, allowing removal of an unwanted body); 4.26.4 (28.12. to Leontius, release from father’s debt); 4.35.3 (27.10. to Germanus, on concurrent suits against debtors); 4.54.1 (no date, to Claudia Diotima,

Goharian embassy

priesthood

SEG XVII 759.

See Ch. 5. Millar, Emperor (1992 [1977]), 38, 121, 233, 455, 535–6; Nörr, ‘Reskriptenpraxis’ (1981), 35; Wankerl, Appello (2009), 203–26.

(continued )

Continued Emperor

Date

Description upholding a condition of sale); 5.62.4 (21.6. to Agothodaemon, allowing his marriage to Demetria, his ward, done in good faith); 6.25.3 (30.4. to Maxentius and others, allowing them to inherit); 6.37.8 (8.3. to Demetrius, on a soldier’s legacy as guardian); 7.53.4 (3.6. to Marcellus, on satisfying his creditors); 8.18.2 (1.10. to Felix, on succeeding the fisc and recovering money); 9.6.3 (28.9. to Proculus,

Parties

Subject-matter

Decision

Sources

Literature

that he cannot be punished for abandoning and extinquished suit); 9.32.3 (3.1. to Helena, allowing her to sue her former stepmother for wasting her inheritance); 10.8.1 (17.11. to Antiochus, telling him to pay the penalty). Caracalla

217

Rescripts: Cod. Iust. 2.18.9 (22.2. to Sallustius, granting action against a moneycollector); 8.37.3 (24.2. to Hadrianus, on recovering money).

Caracalla

wrong dating

Rescripts: Cod. Iust. year 218: 2.18.8 (27.7. to Severus, allowing a veteran to sue an agent). 223: (continued )

Continued Emperor

Date

Description 2.12.8 (25.8. to Mansuetus, on the collection of debt for others); 3.28.10 (12.8. to Quintilianus, allowing claim of inheritance against fisc); 3.34.3 (1.5. to Ricana, contracting water servitutes). 229: 3.28.12 (5.12. to Licinius and Diogianus, rejecting an action denying a child of inheritance). 230: 2.12.12 (27.9. to Frontinus, on the mandate of a son as defendant). 243: 1.18.2 (18.10. to Sextus Juvenal,

Parties

Subject-matter

Decision

Sources

Literature

rejecting a claim of ignorance of law). 277: 2.12.10 (27.2. to Castricia, on procurators exceeding their mandates). 312: 2.53.1 (3.3. to Aemilianus, reinstating action due to case lost while on an embassy). 218: 2.18.8 (27.7. to Severus, allowing a veteran to sue an agent). 223: 2.12.8 (25.8. to Mansuetus, on the collection of debt for others); 3.28.10 (12.8. to Quintilianus, allowing claim of inheritance against fisc); 3.34.3 (1.5. to Ricana, contracting water servitutes). 229: 3.28.12 (5.12. to (continued )

Continued Emperor

Date

Description Licinius and Diogianus, rejecting an action denying a child of inheritance). 230: 2.12.12 (27.9. to Frontinus, on the mandate of a son as defendant). 243:1.18.2 (18.10. to Sextus Juvenal, rejecting a claim of ignorance of law). 277: 2.12.10 (27.2. to Castricia, on procurators exceeding their mandates). 312: 2.53.1 (3.3. to Aemilianus, reinstating action due to case lost while on an embassy).

Parties

Subject-matter

Decision

Sources

Literature

Caracalla

Rescripts without year: Cod. Iust. 3.36.2 (12.2. to Avitianus, on retaining dowry); 4.7.1 (no date, to Ingenuus, on how to be released from a false debt); 4.30.4 (no date, to Bassus, refusing a complaint of false debt if it was partly paid); 4.31.1 (no date, to Dianensis, on where to recover money paid to fisc); 4.32.8 (no date, to Claudius Doryphorus, on Bassa’s interest on loan from Menophanus); 4.32.9 (no date, to Canius Probus, limiting the interest liability of a debtor); 4.35.2 (no date, to Statius Marcellinus, (continued )

Continued Emperor

Date

Description granting action on a father’s suretyship); 4.39.2 (no date, to Titius Florianus, rejecting a late claim for a bond); 7.4.2 (no date, to Valerius, affirming his freedom despite forged will); 7.16.1 (9.2. to Saturnina, admonishing her for selling her sons); 7.52.3 (no date, to Demetrius, telling that if you do not appeal, you obey); 7.53.2 (no date, to Maximus, on novation of judgment); 7.73.1

Parties

Subject-matter

Decision

Sources

Literature

(no date, to Eutropia, on restoring her wrongly confiscated property); 8.35.3 (no date, to Vitalis, on suing his brother for fraud in guardianship); 9.47.4 (no date, to Marina, that a boy has the status of her mother at conception); 9.51.2 (no date, to Quietus, telling that his father’s property stays confiscated); 10.39.1 (no date, to Silvanus, advising that he has to pay liturgies to both Berytus and Byblium); 10.40.1 (no date, to Paulinus, about civic duties); 10.53.1 (no date, (continued )

Continued Emperor

Date

Description to Numisius, affirming immunity from liturgies); 10.67.1 (no date, to Basilida, you can sue to be freed from liturgies); 11.30.2 (no date, to Aphrodisius, on obligations); 11.32.2 (no date, no name, on bids to lease public lands); 12.35.1 (no date, to Annaeus, refusing military pay when he was among the enemy); 12.35.2 (no date, to the Soldiers of the First Cohort, giving them liberty from

Parties

Subject-matter

Decision

Sources

Literature

sordid duties after 20 years of service). Caracalla

A rescript to Granius Firminus about tutors and their responsibility.

Frag. Vat. 228.

Caracalla/ Elagabalus

218

A rescript on inheritance and patria potestas, identification to Elagabalus based on dating.

Victorina

Severus Alexander

222

A rescript about the petitioner’s mother’s lawsuit.

Aurelius Dionysius

Severus Alexander

222

Rescripts: Cod. Iust. 1.23.1 (15.7., procedure); 2.3.8 (12.9., procedure); 2.3.9 (12.9., contract); 2.18.10 (20.11., expenses); 3.32.3 (30.10., sale); 3.35.1 (7.11., damages); 3.37.2 (12.9., pledge);

inheritance

Epitome codicum Gregoriani et Hermogeniani Wisigothica 13.1.

Consultatio veteris cuiusdam iurisconsulti 9.11.

(continued )

Continued Emperor

Date

Description 3.42.1 (1.5., slave); 4.14.3 (13.9., ingratitude); 4.24.2 (1.10., pledge); 4.44.1 (19.2., contract); 4.50.2 (20.3., possession); 4.54.2 (1.9., sale); 4.57.1 (8.11., manumission); 4.57.2 (5.12., manumission); 4.65.4 (1.12., theft); 5.34.1 (1.11., tutor); 6.2.4 (13.9., slave); 6.21.4 (16.11., manumission); 6.35.3 (4.4., testament); 7.4.3 (no date, manumission); 7.56.1 (7.5., procedure); 7.64.1

Parties

Subject-matter

Decision

Sources

Literature

(25.3., procedure); 8.29.1 (1.9., pledge); 8.29.2 (30.12., restitution); 8.37.4 (31.3., stipulatio); 8.44.6 (8.3., eviction); 8.44.7 (3.4., surety); 8.44.9 (22.12., property); 9.1.4 (16.6., procedure); 9.1.5 (1.10., accusation). Severus Alexander

223

Rescripts: Cod. Iust. 2.4.3 (12.8., obligation); 2.21.1 (11.7., minor); 2.42.1 (21.3., restitution); 3.41.1 (19.11., inheritance); 3.44.3 (3.7., procedure); 3.44.4 (2.11., sepulchre); 4.20.2 (22.4., status); 4.21.2 (30.9., forgery); 4.24.4 (20.4., (continued )

Continued Emperor

Date

Description pledge); 4.26.5 (8.12., peculium); 4.29.4 (27.12., debt); 4.30.7 (5.11., debt); 4.31.3 (1.10., debt); 4.48.2 (28.3., contract); 4.55.3 (12.3., sale); 4.56.1 (30.10., sale); 4.56.2 (1.12., sale); 5.28.3 (28.12., tutor); 5.37.7 (10.7., tutela); 5.55.1 (14.5., tutela); 5.63.1 (20.4., tutor); 6.2.5 (29.4., procedure); 6.6.1 (14.5., infamia); 6.16.1 (10.12., inheritance); 6.24.3 (26.4., testament); 6.26.3 (22.8., testament);

Parties

Subject-matter

Decision

Sources

Literature

6.30.2 (8.2., inheritance); 6.32.1 (31.3., testament); 6.35.4 (30.11., testament); 6.44.3 (7.5., dowry); 6.50.5 (18.10., gift); 6.58.1 (7.5., inheritance); 7.19.1 (no date, status); 7.19.2 (9.8., status); 7.19.3 (27.11., status); 7.48.1 (3.1., procedure); 7.68.1 (20.8., appeal); 8.15.4 (28.10., capacity); 8.29.3 (16.9., restitution); 8.35.4 (6.10., process); 8.44.10 (5.11., property); 8.45.1 (18.10., pledge); 9.8.1 (11.4., maiestas); 12.36.1 (13.11., property). Severus Alexander

224

Rescripts: Cod. Iust. 2.11.12 (1.7., (continued )

Continued Emperor

Date

Description infamia); 3.31.6 (22.6., tutor); 3.37.3 (3.5., arbiter); 3.44.6 (24.6., ownership); 4.29.5 (17.6., pledge); 4.51.1 (7.7., sale); 4.55.4 (21.6., status); 4.57.3 (1.2., manumission); 5.31.6 (22.9., tutor); 5.44.2 (20.4., recovery); 5.57.1 (23.1., tutor); 6.3.8 (11.9., manumission); 6.6.4 (30.9., ingratitude); 6.15.1 (10.1., inheritance); 6.25.4 (27.3., testament); 6.42.5 (18.1., inheritance);

Parties

Subject-matter

Decision

Sources

Literature

6.47.3 (21.3., fideicommissum); 6.54.5 (11.8., fideicomissum); 7.11.4 (13.5., manumission); 7.58.2 (October, evidence); 8.1.1 (26.3., interdict); 8.18.3 (1.2., debt); 8.51.1 (30.5., slave); 8.52.1 (27.3., procedure); 9.1.6 (3.5., accusation); 9.8.2 (2.2., maiestas); 12.36.3 (13.10., property). Severus Alexander

224

Letter to Aphrodisias, delegating the undefined matter of the petition to an unnamed judge, inscribed.

Severus Alexander

225

Rescript about peculium.

Aphrodisias 19 (J. Reynolds, Aphrodisias and Rome (London 1982)).

Modestinus, Celsorinus

Epitome codicum Gregoriani et Hermogeniani Wisigothica 9.1. (continued )

Continued Emperor

Date

Description

Severus Alexander

225

Rescripts: Cod. Iust. 2.1.7 (March, procedure); 4.55.5 (27.1., sale); 6.3.9 (20.2., marriage); 6.3.10 (7.8., manumission); 6.21.6 (20.4., testament); 6.26.4 (28.6., testament); 6.28.2 (8.4., testament); 7.4.8 (September, testament); 8.16.4 (28.2., pledge); 8.27.4 (1.6., pledge); 9.23.5 (15.6., forgery); 10.4.1 (25.9., fisc).

Severus Alexander

226

Rescripts: Cod. Iust. 2.36.2 (1.8., restitution); 2.43.2 (28.7., minors); 3.33.5 (1.4., usufruct); 4.21.3 (5.5., evidence);

Parties

Subject-matter

Decision

Sources

Literature

5.29.2 (6.8., tutor); 6.46.4 (1.12., legacy); 6.50.7 (1.5., testament); 6.53.5 (20.12., testament); 9.49.3 (10.9., peculium castrense). Severus Alexander

227

Severus Alexander

228

Rescripts: Cod. Iust. 2.3.10 (October, contract); 2.4.5 (1.3., contract); 2.18.11 (20.1., expenses); 4.6.2 (18.11., gift); 4.65.7 (9.1., contract); 5.16.5 (13.2., gift); 8.25.3 (11.4., pledge); 8.46.3 (9.9., patria potestas); 9.6.4 (27.12., forgery); 9.22.4 (22.12., forgery). Rescripts: Cod. Iust. 4.29.6 (10.10., pledge); 4.30.8 (21.3., debt); 4.50.3 (17.6., (continued )

Continued Emperor

Date

Description ownership); 5.29.3 (11.4., tutor); 5.36.2 (9.6., curator); 5.56.3 (13.4., debt); 5.62.9 (1.2., tutela); 6.2.7 (4.6., theft); 7.21.4 (9.6., status); 10.5.1 (17.4., fisc).

Severus Alexander

229

Rescripts: Cod. Iust. 2.3.11 (5.12., contract); 2.11.13 (20.10., infamia); 4.31.5 (no date, trust); 4.31.6 (16.11., traditio); 4.47.1 (5.12., contract); 5.16.6 (5.12., gift); 5.21.1 (16.11., compensatio); 5.37.8 (8.12., curator); 5.43.3 (13.1., tutor); 5.43.4 (9.9., tutor); 5.51.4

Parties

Subject-matter

Decision

Sources

Literature

(29.4., curator); 6.21.7 (1.7., testament); 6.35.6 (17.6., inheritance); 7.55.1 (1.7., procedure); 8.33.1 (19.11., pledge). Severus Alexander

230

Rescripts: Cod. Iust. 2.3.12 (27.2., contract); 2.4.6 (6.1., contract); 2.18.12 (1.8., debt); 2.18.13 (25.10., expenses); 3.33.6 (1.7., usufruct); 3.42.4 (29.4., procedure); 4.25.3 (7.5., action); 4.28.5 (28.2., debt, sim. Epit. Cod. Greg Vis. 10.1); 4.39.6 (24.6., inheritance); 5.37.9 (15.4., curator); 5.37.10 (22.7., curator); 7.10.3 (27.7., manumission); 8.19.1 (11.5., pledge); 8.40.12 (27.8., stipulatio); 9.1.7 (18.8., (continued )

Continued Emperor

Severus Alexander

Date

231

Description accusation); 9.22.5 (30.8., forgery); 9.35.2 (14.5., iniuria). Rescripts: Cod. Iust. 2.26.1 (28.1., tutela); 3.22.1 (20.8., slave); 4.19.3 (28.12., debt); 4.65.8 (1.8., rent); 5.11.1 (1.8., dowry); 5.36.3 (6.12., tutela); 5.62.11 (8.12., tutor); 6.2.8 (20.2., theft); 7.4.9 (1.4., testament); 7.30.2 (7.3., ownership); 8.27.5 (21.7., debt); 8.44.11 (5.2., property); 9.34.1 (9.2., fraud).

Parties

Subject-matter

Decision

Sources

Literature

Severus Alexander

232

Rescripts: Cod. Iust. 1.21.1 (1.3., procedure); 2.41.1 (22.9., restitution); 5.16.7 (1.10., gift); 7.75.2 (22.7., inheritance); 8.42.2 (1.6., surety).

Severus Alexander

233

Rescripts: Cod. Iust. 2.33.1 (10.7., dowry); 3.26.4 (13.10., sale); 5.16.8 (27.9., dowry); 6.36.1 (29.6., testament); 6.50.8 (13.9., testament); 8.17.5 (29.4., debt).

Severus Alexander

234

Rescripts: Cod. Iust. 2.18.14 (20.2., mandate); 4.32.14 (21.4., loan); 4.34.1 (11.7., deposit); 5.46.1 (13.3., tutor). (continued )

Continued Emperor

Date

Description

Severus Alexander

wrong date

Rescripts: 236: Cod. Iust. 5.12.6 (11.2., dowry). 238: 2.21.2 (6.8., minor); 3.1.4 (1.8., procedure). 239: 6.58.2 (8.4., inheritance). 240: 6.37.12 (11.7., testament). 266: 2.19.2 (26.6., debt). 270: 1.23.2 (26.10., procedure).

Severus Alexander

Severus Alexander

No year

Inscribed rescript from Numidia about exactions of officials, with reference to the imperial legate. Rescripts: Cod. Iust. 2.27.1 (27.8., oath); 3.36.4 (no date, peculium castrensis); 3.36.5 (no date, slave);

Parties

Subject-matter

Decision

Sources

CIL VIII, suppl., 17639.

Literature

4.30.5 (no date, debt); 4.30.6 (no date, substitution); 4.35.4 (6.1., procurator); 4.35.5 (no date, procurator); 4.54.3 (13.7., sale); 5.3.2 (no date, gift); 5.3.3 (no date, gift); 5.4.5 (no date, family); 5.5.1 (no date, marriage); 5.39.2 (18.8., tutor); 7.8.6 (no date, manumission); 7.10.2 (no date, manumission); 7.11.5 (no date, manumission); 7.14.1 (no date, manumission); 7.16.4 (no date, status); 7.16.5 (no date, status); 7.21.3 (no date, status); 7.26.3 (no date, possession); 7.26.4 (11.4., sale); 7.27.1 (11.3., ownership); 7.30.3 (no date, ownership); (continued )

Continued Emperor

Date

Description 7.32.2 (no date, possession); 7.46.2 (no date, procedure); 7.58.3 (26.8., evidence); 7.62.2 (no date, procedure); 7.64.2 (no date, procedure); 8.32.2 (no date, pledge); 8.40.10 (no date, surety); 9.9.4 (no date, lawful killing); 9.46.1 (no date, calumnia); 9.47.9 (no date, punishment); 9.51.3 (no date, debt); 9.51.4 (no date, pardon); 9.51.5 (no date, pardon); 10.40.2 (no date, munera); 10.63.1 (no date, munera); 10.68.1 (no date, munera); 11.37.1 (no date, status); 11.40.1 (no date, taxation); 12.1.1 (no date, status).

Parties

Subject-matter

Decision

Sources

Literature

Bibliography Abel, ‘Seneca’ (1985) = K. Abel, ‘Seneca: Leben und Leistung,’ Aufstieg und Niedergang der römischen Welt 2.32.2 (1985), 653–775. Adam, Clementia Principi (1978) = T. Adam, Clementia Principis. Der einfluss hellenistischer Fürstenspiegel auf den Versuch einer rechtlichen Fundierung des Principats durch Seneca (Stuttgart 1978). Adams, Land Transport in Roman Egypt (2007) = C. Adams, Land Transport in Roman Egypt: A Study of Economics and Administration in a Roman Province (New York and Oxford 2007). Adler, ‘Agrippa-Maecenas Debate’ (2012) = E. Adler, ‘Cassius Dio’s Agrippa–Maecenas Debate: An Operational Code Analysis,’ American Journal of Philology 133 (2012), 477–520. Agamben, State of Exception (2005) = G. Agamben, State of Exception (Chicago 2005). Alexander, Trials (1990) = M. Alexander, Trials in the Late Roman Republic 149 BC to 50 BC (Toronto 1990). Alföldy, Vater des Vaterlandes (1971) = G. Alföldy, Der Vater des Vaterlandes im römischen Denken (Darmstadt 1971). Alföldy, ‘Staats- und Gesellschaftsdenken bei Sueton’ (1980–1) = G. Alföldy, ‘Römisches Staats- und Gesellschaftsdenken bei Sueton,’ Ancient Society 11–12 (1980–1), 349–85. Amarelli, Consilia Principum (1983) = F. Amarelli, Consilia Principum (Naples 1983). Ameling, ‘Griechische Intellektuelle’ (1997) = W. Ameling, ‘Griechische Intellektuelle und das Imperium Romanum: das Beispiel Cassius Dio,’ Aufstieg und Niedergang der römischen Welt 2.34.3 (1997), 2472–96. Amelotti, ‘Reichsrecht, Volksrecht, Provinzialrecht’ (1999) = M. Amelotti, ‘Reichsrecht, Volksrecht, Provinzialrecht: Vecchi problemi e nuovi documenti,’ Studia et documenta historiae et iuris 65 (1999), 211–15. Anagnostou-Canas, Juge et sentence (1991) = B. Anagnostou-Canas, Juge et sentence dans l’Égypte romaine (Paris 1991). Anderson, ‘Turannoi’ (2005) = G. Anderson, ‘Before Turannoi were Tyrants,’ Classical Antiquity 24 (2005), 173–222. Anderson, ‘Augustan Edicts’ (1927) = J. G. C. Anderson, ‘Augustan Edicts from Cyrene,’ Journal of Roman Studies 17 (1927), 34–8. Ando, Imperial Ideology (2000) = C. Ando, Imperial Ideology and Provincial Loyalty in the Roman Empire (Berkeley 2000).

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Index access, accessibility 1, 49, 51, 115, 136, 159, 160, 162, 164, 177, 189, 199, 200, 203, 206, 213, 223, 231, 239, 247, 249, 252, 253, 256, 260, 261, 273, 293 adjudication, adjudicating 3–12, 14, 16, 19, 20, 29, 33, 39–41, 46, 47, 52, 53, 59, 69, 70, 81, 89, 91, 103, 105, 110, 111, 115, 119, 120–4, 126–8, 130, 135, 137, 138, 141–4, 147–9, 151, 155, 156, 157, 159–1, 163, 167, 169, 172, 177, 178, 183–5, 187, 189, 192–5, 197, 198, 200, 207, 208, 210, 212, 218, 220, 222–4, 230, 231, 233, 234, 238, 240–4, 260, 266–9, 273, 274, 276, 278, 279–82, 284–6, 288–92, 294, 295, 297 administration, administrator 2, 4–6, 9–11, 18, 19, 21, 39, 40, 52, 57, 58, 64, 68, 70, 72, 76, 78, 82, 84, 90, 93, 103–5, 111, 122, 126, 133, 138, 147, 151, 154, 161, 162, 176, 187, 189, 195, 197, 198, 202, 210, 212, 220, 223, 226–9, 232–5, 238, 240, 241, 245, 248, 258–60, 262–4, 266–9, 271, 272, 277, 287, 289–91, 294, 296, 297 adultery 53, 78, 79, 85, 144, 185, 207, 208 Aelius Aristides 20, 23, 196, 197, 199–206, 215, 239, 260, 275, 297 aequitas 38 Agrippina 142, 155, 158 ambiguity 121 amicus, amici 109, 187, 248, 255 Antoninus Pius 196, 199, 202, 203, 210, 211, 213, 215–18, 268, 284 Appeal 1, 6, 9, 12, 23, 28, 33, 35, 41, 57, 65, 67, 69, 74, 81, 82, 84, 85, 89–91, 105–7, 111–14, 120, 146, 148, 149, 157, 159, 160, 163, 179, 180, 187, 191, 194, 199, 201, 202, 204, 206, 215, 229, 239, 243, 249, 250, 252, 255, 258, 260, 261, 264, 281, 284, 285, 292, 294–6 C. Appius Silanus 155

arbitration 12, 162 arbitrator, arbiter 4, 8, 17, 49, 69, 91, 109, 111, 114, 131, 134, 199, 202, 250, 260, 273, 296 Aristotle 32, 33, 206 Athena’s vote 90, 91, 108 auctoritas 19, 42, 70, 97, 98, 99, 101, 103, 105, 106, 108, 109, 111, 115, 119–24 Asia Minor 1, 57 Asinius Gallus 85, 86, 155 Astypalaia 87, 88 audience 20, 28, 29, 47, 48, 51, 100, 124, 142, 159, 167, 202, 205, 211, 242–4, 248, 251, 252, 289, 290, 294 Augustus 3, 4, 6, 19, 29, 55–7, 65, 68–126, 128, 129, 134, 137–41, 143, 144, 147, 151, 156, 161, 163, 170, 171, 174, 175, 180, 183, 189, 190, 224, 225–8, 230, 232, 236, 245, 275, 276, 281, 292, 293, 295, 297 authority 3, 4, 6, 10, 11, 21, 23, 27, 29, 42, 53, 61, 66, 70, 72, 84, 91, 94, 99, 108, 111, 113, 114, 120, 124, 125, 128, 137, 144, 145, 173, 181, 182, 190, 199, 217, 230, 238, 250, 255, 259–62, 279, 281, 293, 295 autocracy 13, 14, 21, 25, 73, 173, 180, 196, 237, 276 autonomy 57, 88 auxilium 8, 106 Bithynia 1, 187, 190, 273 bureaucracy 4, 155, 156, 235, 242, 259, 286 calculus Minervae see Athena’s vote Caligula 130, 134, 137, 140, 142, 147–52, 155, 157, 173, 175, 179, 193, 224, 228–30, 232, 276 calumny 158 Caracalla 20, 241, 242, 244, 245, 247–9, 251, 253, 255, 256, 264, 266, 267, 269–71, 278, 281, 284, 286 case 2, 5, 8, 9, 12, 19, 20, 24, 25, 27, 28, 40, 46–8, 51–3, 60, 61, 64, 74, 76, 78,

Index 80–5, 87–90, 96, 105–9, 111–16, 120–2, 124, 126–9, 135, 138, 141, 143–9, 151, 152, 154–9, 161–4, 167, 178–91, 193, 194, 199, 201, 202, 207–21, 227, 230, 231, 240, 242–6, 248–52, 255–8, 260, 262, 263, 266, 268, 269, 273, 280, 281, 284, 290–6 Cassius Chaerea 155 Cassius Longinus 158 Cassius Dio 3, 9, 10, 20, 51, 52, 60, 72, 74, 89–93, 102, 104, 105, 108, 112, 114, 115, 123, 127, 128, 130, 147, 148, 151, 155, 163, 198, 203, 209, 210, 214, 220, 222, 242–4, 267, 268, 270–81, 283, 286, 291, 295–7 chamber pot 86, 88 Christianity, Christians 14, 158, 191 Cicero 8, 19, 21–5, 27–32, 34, 37–48, 51–6, 59–67, 74, 76, 98, 100–2, 120, 137, 139, 189, 292, 293, 295 citizen 5, 9, 29, 36–8, 45, 49, 76, 88, 90, 91, 101–3, 113, 128, 133, 181, 185, 190, 192, 204, 246, 275, 287 citizenship 8, 221, 257, 286, 287 civilization 29, 262 civilizing 13, 235 civil matter 7, 12, 81, 108, 210, 248 civil war 25, 27, 34–6, 38, 52, 59, 60, 62, 64, 67, 92, 98, 100, 109, 132, 241, 268, 280 Claudius 127, 130, 134, 137, 140–2, 147, 148, 151–7, 164, 165, 167, 170, 175, 179, 182, 193, 221, 224, 226–8, 230, 233, 276, 277 clemency 25, 27, 29–31, 37, 41, 44, 60, 75, 120, 132, 134, 136, 137, 191, 293 clementia 38, 41, 45, 46, 60, 62, 67, 75–7, 97, 100, 101, 124, 130–2, 135–8, 140–2, 146, 188, 193 Cocceius Nerva 181, 182 codification 54, 234 coercion 11, 39, 58 coercitio 78 cognition, cognitio 5, 40, 64, 111, 114, 116, 146, 156, 185–7, 219, 249, 251, 253, 271, 294, 295 coinage 100, 105, 238 collegium, collegia 61, 105, 176 Commodus 196, 222, 223, 241, 255, 268, 271, 273, 277 commonwealth 31, 37, 38, 83, 95

459

consensus 98, 99, 109 consilium 19, 64, 113, 116, 117, 128, 144, 148, 149, 154, 157, 161, 184, 185, 187, 193, 209, 219, 249, 260, 269, 276 Constitutio Antoniniana 8, 270, 271, 286–9, 291 constitution 6, 10, 18, 22, 35, 37, 42, 63, 68, 76, 100, 123, 147, 156, 175, 177, 207, 223, 237, 238, 255, 256, 259, 262, 272, 285–7 constitutional, constitutionalism, constitutionality 2–7, 10, 17, 18, 21–3, 31, 33, 34, 44, 64, 65, 67–73, 93, 94, 97, 99–101, 104–6, 108, 112, 119, 123, 150, 175, 176, 194, 237, 274, 293, 295, 296 constitutio, constitutiones 237, 285, 286 consul 7, 8, 27, 37, 39, 54, 85, 101, 103, 117, 119, 144, 156, 162, 188, 208, 226 corona 28 corrupt 6, 88, 160, 183, 194, 232 corruption 96, 146, 182, 253 court 1, 3, 6, 9, 14, 15, 36, 46, 59, 69, 75–8, 81, 82, 92, 102, 104, 107, 109, 111, 114–18, 128, 147, 149, 150, 152, 155–7, 160, 162, 163, 167, 181, 193, 194, 202, 208, 210, 214, 220, 221, 249, 255, 256, 266, 269, 272, 278, 279, 281 crime 41, 53, 63, 78, 102, 140, 179, 208, 229, 269, 271, 272 criminal 37, 38, 41, 47, 60, 64, 278 criminal case 40, 112, 143, 147, 161, 178, 179, 212 criminal court 114 criminal jurisdiction 71, 92, 107, 143, 275 criminal law 29, 88 criminal matter 7, 12, 24, 108, 248 criminal proceedings 59 crisis 8, 34, 46, 241 death penalty 29, 92, 281 decemvir 80, 95, 96, 208, 237 deprecatio 41, 65 diadem 54, 102 dictator, dictatorship 8, 11, 13, 14, 19, 23, 27, 28, 30–2, 34, 35, 37, 43, 44, 46, 47, 52–4, 56, 62, 65–7, 95, 98, 102, 104, 229

460

Index

Didius Julianus 277 Digest 1, 112, 113, 128, 144, 161, 192, 198, 210, 211, 222, 254, 282, 290 divine 23, 51, 54–8, 62, 66, 67, 74, 105, 126, 134, 146, 150, 170–2, 202, 264, 285, 296 divine honour 51, 54, 55, 56, 57, 62, 134, 146, 150 dominus 32, 102, 129, 220 Domitian 149, 159–61, 164, 167, 175, 177, 179, 188–91, 193, 227, 228, 230, 274, 277 domus 26, 50, 75, 145, 165, 168 domus publica 26, 49, 50, 118, 165 edict 4, 37, 39, 54, 63, 64, 69, 73, 75, 76, 80, 82–4, 101, 108, 116, 154, 156, 175, 189, 190, 197, 231, 234, 238, 268 Egypt, Egyptian 1, 6, 57, 60, 92, 244–7, 254, 256, 258, 288 Elagabalus 242, 271, 272, 279, 280, 286 equites 91, 92, 100, 104 equity 38, 66, 141, 146, 209, 256 ethics 13, 14, 134–7, 139, 145, 193, 243, 261, 282, 285, 286, 289–91 Euboulos (son of Chrysippos) 85, 86 execution 16, 45, 59, 60, 92, 127, 149, 153, 158, 178, 184, 229, 262, 280 executive power 42, 107, 110, 121, 123, 295 exemplum, exempla 3, 97, 100, 141, 169, 174–7, 220, 224, 229 exception 6, 11, 13, 43, 59, 68, 73, 80, 104, 110, 122, 126, 174, 181, 201, 209, 252 exile 27, 29, 47, 53, 73–7, 79, 208, 221, 296 experimentation 64, 72, 122 extraordinary 3, 22, 24, 31, 36, 37, 43, 62, 63, 65, 66, 70, 73, 94, 98, 99, 101, 124, 139, 170, 199, 204, 210, 215, 230, 273 façade 103, 119, 120, 229 faeces 86 familia 42, 109, 207 familia Caesaris 236 family 35, 75, 81, 105, 117, 128, 141, 142, 144, 145, 147, 157, 183, 193, 208, 232, 236, 269

father 19, 20, 23, 25, 32, 41, 42, 47, 48, 61, 74, 77, 81, 95, 96, 99, 100, 109, 118, 120, 124, 128, 133, 134, 137, 139, 179, 207–9, 218, 227, 231, 236, 293 formal powers 7, 39, 121 formalism 2, 17, 119 Forum 10, 25, 26, 28, 48, 49, 53, 54, 97, 116, 117, 125, 138, 148, 151, 156, 161, 164–7, 202, 210, 231, 266 free city 88 freedom 40, 59, 63, 95, 96, 236 friend, friendship 30, 34, 45, 46, 58, 60, 61, 66, 77, 85, 92, 101, 128, 139, 141, 145, 152, 154, 159, 179, 180, 182, 199, 203, 209, 225, 247, 255 functionalism 2, 8, 119 Gaius Gracchus 37 Galba 52, 53, 159, 175, 277 Geta 264, 270 gift 59–61, 67, 75, 76, 81, 93, 135, 137–9, 224, 229 good judge 6, 7, 33, 148, 184, 216, 227, 268 governor 1, 5, 8, 9, 12, 19, 25, 37, 39–41, 44, 52, 66, 69, 88, 107, 110, 111, 120, 121, 124, 155, 156, 185, 190, 197, 201, 212, 215, 216, 220, 240, 245, 246, 249, 250, 252, 254, 260, 265, 273, 289, 294 greed 30, 161, 233 Greek 1, 13, 19, 29, 32, 33, 41, 57, 58, 66, 97, 136, 139, 142, 152, 154, 160, 197, 200, 203–6, 209, 221, 242, 273, 275, 294, 295 Hadrian 20, 54, 126, 128, 156, 196–9, 202, 207–15, 217, 220, 223–6, 228, 232, 234, 235, 237–40, 242, 249, 253, 262, 293 Hellenistic 19, 23, 33, 51, 54, 57, 58, 62, 66, 107, 133, 135, 136, 139, 150, 193, 206, 247, 261, 275, 285 honour 40, 55, 62, 96, 102, 138, 144, 199 hostis 36 house 34, 45, 48, 49, 51, 63, 75, 86, 87, 105, 118, 179 idealization 15, 105, 198, 234, 235, 240 Ides of March 25, 43, 55, 58

Index ideology 2, 8, 11, 104, 124 image 8, 20, 23, 24, 29, 42, 51, 52, 57, 58, 61, 66, 67, 74, 80, 89, 90, 93, 95, 98, 103, 107, 108, 111, 119, 122, 124, 127, 128, 130, 132, 133, 135, 136, 143, 147, 148, 157, 159, 160, 177, 178, 181, 183–5, 188, 189, 192–4, 202, 207, 209, 210, 217, 219, 224, 228, 230, 232, 233, 236, 238, 243, 244, 252, 253, 265, 271, 274, 276, 293 imaginary 17, 25 immorality 78, 160 imperial adjudication 3, 4, 7–10, 12, 16, 20, 120, 126–8, 130, 138, 141, 143, 151, 156, 163, 167, 169, 178, 183, 184, 193, 195, 197, 198, 200, 207, 218, 223, 224, 238, 240–4, 268, 273, 274, 282, 285, 286, 288–92, 294, 295, 297 imperium 19, 39, 69, 70, 76, 78, 101, 105–9, 111, 112, 119–21, 123, 124, 145, 162, 171, 173, 194, 237, 283 imperium maius 8, 12, 43, 65, 71, 101, 108, 112, 145 inheritance 81, 82, 109, 128, 187, 193, 238 insane, insanity 20, 126, 127, 136, 143, 146, 147, 149–51, 193, 224, 229, 230, 232, 237, 291, 293 invention 10, 159 ira 75–7, 132 irony 24, 28, 62, 100, 217 iudex 49, 69, 106, 113, 163, 265 iudicium 113 iuridicus, iuridici 4, 210 ius 22, 34, 36, 53, 88, 90, 133, 170, 172, 226, 227, 237, 285 ius auxilii 91 ius civile 54, 287, 288 ius gentium 287, 288 ius naturale 288 ius publicum 145 ius respondendi 234, 238, 239, 259 Iustitia Augusta 122 judge 1–6, 8, 10–12, 16, 18–22, 27, 36–8, 41, 42, 46, 51–5, 66–71, 74, 75, 81, 89, 90, 92, 93, 96, 103, 106, 110, 114, 115, 118, 120, 121, 124, 127, 130, 133–5, 146, 148, 149, 156, 157, 159–61, 163, 167, 171, 177, 178,

461

183, 184, 188, 191, 195–9, 201, 202, 206, 207, 209–11, 213, 215, 216, 218, 219, 221, 222, 224, 226–8, 230, 231, 233, 234, 236, 240, 241, 247, 249, 250, 252, 256, 260, 261, 265, 266, 268, 270–2, 276, 278, 282–4, 290, 291, 293–5 Julius Caesar 8, 19, 21–30, 32, 37, 38, 40, 41–9, 51–62, 64–7, 74, 80, 90, 98, 101, 102, 137–9, 165, 225–7, 275, 292, 293 Junia Calvina 155 L. Junius Silanus 155 M. Junius Silanus 148 jurisdiction 2–8, 10, 12, 13, 17–19, 21–5, 27, 29, 33, 36, 38–40, 43, 44, 46, 49, 51–3, 55–7, 59, 65–74, 81, 82, 84, 88–96, 99, 103–17, 119, 120, 123–8, 130, 133, 140, 142–5, 147–51, 155–8, 161–3, 169, 176–83, 187, 189, 192–4, 197, 198, 205, 207, 209, 210, 216, 220, 224, 227, 233–5, 239, 242, 253, 260, 268, 274, 275, 281, 288, 289, 292–7 justice 1, 4–6, 9, 13–15, 20, 22, 34–6, 38, 40, 48, 53, 57, 59, 63, 66, 67, 87, 88, 90, 96, 105, 107, 116, 119, 120, 122, 124–8, 132, 133, 137–43, 146, 159, 161, 164, 167, 184, 195–9, 201, 202, 206, 207, 209, 210, 213, 214, 218, 220, 223, 226, 227, 230, 233–5, 238–43, 246, 247, 250, 251, 258, 260, 261, 264–6, 269, 273, 276–8, 282, 285, 287–91, 293, 296, 297 kangaroo court 59 king 9, 14, 16, 20, 23, 27, 31–3, 48–51, 54, 56–8, 66, 88, 96, 107, 124, 127, 132, 133, 135–7, 152, 192, 197, 198, 205–7, 216, 218, 224, 243, 244, 247, 250–2, 261, 273, 275, 285, 286, 289, 291, 293, 295, 296 kingship 13, 16, 18, 33, 51, 55–7, 66, 129, 130, 132–5, 139, 161, 203, 218, 264, 275, 294, 296 Knidos 84–9, 107, 295 knight 25, 91, 141, 164, 186 Late Republic 1, 8, 22, 24, 25, 31, 34, 36, 39, 40, 49–51, 56, 58, 62, 65–7, 69, 126, 295

462

Index

law 2, 4, 6–18, 20–2, 29, 31, 34–9, 42, 48, 51–4, 58, 59, 63, 64, 66, 68, 69, 76, 80, 81, 88, 89, 94, 96, 97, 102, 104, 106–8, 111–13, 115–17, 125–8, 130, 132–5, 137, 139, 141–3, 145–9, 155, 156, 158, 159, 161–4, 169–76, 179–81, 183, 185, 188–91, 193, 194, 197–9, 202, 206, 209, 211–13, 215–18, 220–2, 224, 225, 227–30, 233–40, 242, 243, 247, 249, 250, 253, 255, 259–63, 265, 267–71, 273–80, 282–91, 293, 294 lawyer 2, 5, 6, 158, 177, 212, 216, 219, 239, 240, 243, 251, 255, 261, 262, 268, 272, 282, 287, 288 legal history 2, 3, 8, 11, 13, 70 legalism 4, 64, 68, 94, 295 legal procedure 4, 5, 65, 80, 146, 180, 187, 296 legal system 4, 17, 68, 95, 115, 149, 180, 197, 202, 214, 261, 266, 284, 286, 288 legate, legatus, legati 4, 25, 40, 156, 157, 290 legislation, legislative 2, 4, 5, 10–13, 18, 19, 35, 52, 57, 68, 70, 74, 81, 92, 97, 105, 106, 110, 113, 114, 120, 123, 127, 156, 160, 169, 172, 174, 175, 228, 234, 238, 259, 283–5, 288, 294 legitimacy, legitimation 3, 6, 7, 11, 17, 18, 36, 38, 41, 46, 72, 86, 140, 174, 222 letter 1, 4, 12, 28, 77, 78, 84, 88, 116, 152, 154, 161, 175, 184, 186, 187, 189–91, 199, 200, 202, 204, 212, 215, 220, 221, 231, 247, 248, 254, 255, 257, 258, 284, 289 lex Iulia de maiestate 24 lex de imperio Vespasiani 19–20, 110, 128, 169, 174–7, 194, 282, 293 lex regia 110, 174, 283 literature 33, 34, 51, 82, 95, 132, 133, 150, 153, 154, 164, 183, 206, 208, 216, 224, 273, 285 Livia 78, 179 living law 14, 20, 58, 243, 268, 283, 285, 288 Louis IX 16 Lucius Verus 196, 203, 215, 219, 255, 262 Macrinus 242, 271, 278, 279 mad see insane

magister equitum 27 magistracy 35, 40, 65, 69, 98, 101, 106, 119, 156, 173, 221, 294 magistrate 2, 3, 8, 11, 12, 19, 22, 23, 29, 31, 32, 37–41, 43, 46, 47, 51, 52, 55, 66, 76, 82, 85, 89, 92, 94–6, 98, 99, 108, 109, 111, 113, 114, 116, 121, 124, 125, 147–9, 155, 164, 175, 179, 181, 191, 197, 215, 223, 228, 230, 245, 247, 254, 278, 281, 293, 294 maiestas 5, 14, 27, 60, 71, 83, 84, 89, 107, 113, 116, 127, 142, 143, 145, 147, 150, 155, 157, 160, 161, 163, 178, 181, 182, 191, 193, 194, 256, 277, 280 maiores 22 Marcus Aurelius 196, 202, 203, 205, 206, 213, 215, 218–21, 249, 255, 284 marriage 53, 78, 81, 150, 222, 288 memory 19, 23, 24, 116, 124, 140, 142, 175, 223, 272 historical memory 4, 23, 34, 44, 65, 66, 187, 236, 293 Messalina 155, 167, 182 monster 30, 74, 77, 78, 95, 100, 102, 127, 147 moral 13, 14, 46, 79, 80, 91, 95, 97, 102, 108, 122, 134, 135, 137, 139, 141, 145, 160, 193, 207, 218, 228, 233, 281, 285, 286, 288–90 morality 242 mos 22, 34, 183 mos maiorum 18, 37, 102, 158 Mussolini, Benito 15 myth 14, 16, 20, 251, 286, 289 narrative 2–4, 7–10, 16–20, 23, 51, 52, 54–6, 65, 69–72, 74, 94–6, 99, 100, 105, 107, 121, 123, 124, 127, 128, 140, 141, 143, 147, 149, 151, 159, 163, 167, 178, 179, 185, 192, 193, 197, 207, 209, 213, 214, 216, 218, 219, 222–4, 234, 237–41, 243, 244, 253, 264, 269, 270, 272, 274, 276–8, 282, 285, 290, 292–7 Nero 130–2, 134, 135, 137, 139, 142, 147, 148, 155, 157–60, 167, 173, 175, 179, 183, 184, 186, 187, 193, 202, 227, 228 Nerva 160, 190

Index order 1, 2, 14, 59, 63, 67, 69, 98, 99, 104, 114, 204, 293 Otho 175, 176 Ovid 3, 9, 19, 70, 73–81, 92, 93, 95, 96, 100, 101, 104, 105, 107, 109, 111, 118–20, 122–4, 293 pardon 25, 28, 30, 31, 41, 45, 59–61, 63, 77–9, 82, 92, 139, 182, 232, 270 παρούσης 85 paterfamilias 8, 19, 29, 41, 42, 49, 66, 70, 106, 109, 116, 132, 133, 147, 150, 208 pater patriae 42, 81, 99, 109, 133 patria potestas 20, 42, 109, 124, 207, 208, 211, 227 Paul (apostle) 157 Paul (jurist) 1, 210, 212, 218, 269, 284, 290 perduellio 25, 60 Pertinax 268, 277, 296 petition, petitioner 1, 4, 6, 7, 9, 12, 13, 16, 19, 20, 24, 40, 41, 48, 59–61, 65, 70, 71, 73, 74, 82, 84, 88–90, 107, 110, 111, 114, 115, 121, 126, 138, 159, 162, 164, 177, 190–2, 194–7, 199, 202, 209, 210, 212–16, 223, 231, 238, 239, 242–61, 263–7, 269, 273, 278, 280, 281, 287, 289–96 Philinos 86 Plato 32, 33 plebs 24, 58, 65, 100, 171, 236 Pliny the Younger 9, 10, 19, 128, 133, 161, 162, 175, 177, 178, 184, 185, 187–95, 206, 225, 226, 232–4, 236, 282, 297 poet 75, 80, 92, 93, 122, 129 pomerium 90, 91, 108, 170, 171 Pomponius 10, 23, 162, 197, 212, 237, 239, 240, 285 pontifex maximus 49, 82, 85, 119, 259 Poppaea 182 popular sovereignty 13, 18, 22, 104, 110, 283 potestas 20, 42, 58, 70, 71, 98, 106, 109, 124, 170–2, 180, 207, 208, 211, 227 power 3–11, 13, 15, 16, 19–24, 31, 33–7, 39–43, 45–7, 51, 53, 56, 57, 59–61, 64–76, 80, 82, 84, 85, 87, 89–92, 94–112, 115, 119–31, 133, 134, 136, 137, 139–42, 145–51, 156–9, 164, 169–78, 180, 181, 183,

463

186–8, 192–5, 197, 200–3, 205–8, 211, 216–18, 220, 221, 223, 224, 230, 232, 234, 236–9, 243, 250, 260, 261, 264, 265, 268, 270, 273–6, 278–83, 285, 288, 290–7 praetor 37, 39, 40, 49, 53, 54, 64, 66, 69, 117, 151, 162, 179, 197, 209, 222, 234, 238, 260, 277, 278, 280, 294 praetor peregrinus 63, 111 praetor urbanus, city praetor 90, 111, 113, 115, 230, 262, 268 praetorian cohort 10 praetorian guard 268 prefect 9, 162, 245, 270, 272 city/urban prefect 4, 113, 157, 158, 210, 234, 262, 268 praefectus annonae 255, 284 praefectus praetorio, praetorian prefect 4, 210, 220, 225, 243, 248, 268, 272, 284 princeps 42, 57, 66, 75, 99–103, 107, 109, 121, 126, 133, 142, 145, 173, 183–5, 188, 237, 239, 276, 283 princeps senatus 117, 192 Principate 7, 11, 14, 42, 43, 46, 69, 71–4, 76, 80, 89, 94, 95, 98–100, 103, 104, 119, 123, 127, 132, 135, 139, 146, 163, 174, 179, 192, 227, 228, 233, 234, 236, 242, 275, 276, 282, 292 privilege 11, 15, 16, 88, 90, 91, 148, 160, 175, 196, 199, 200, 222, 236, 238, 249, 266, 271, 273, 281, 287 proconsul 8, 36, 40, 41, 69, 82, 83, 85, 101, 108, 119, 145, 171, 194, 210, 217, 220 propraetor 25, 41 property 16, 27, 34, 35, 53, 56, 62–4, 76, 142, 161, 183, 211, 222 proscription 13, 14, 25, 28, 35, 45, 60, 62, 64, 66, 67, 92, 102, 116, 124, 280 province 5, 9, 12, 19, 39–41, 52, 62, 74, 82–4, 89, 93, 107, 108, 111, 119, 121, 144, 156, 160, 161, 183, 186, 191, 204, 215, 228, 246, 257, 264, 271, 287, 288, 289, 293–7 provocatio 34, 35, 37, 46, 96, 113, 114 Putin, Vladimir 15, 16 quaestio (perpetuae, extraordinariae) 27, 29, 36, 39, 157, 163 quasi-sovereignty 39

464

Index

reform 39, 52, 54, 55, 65, 79, 97, 105, 116, 161, 197, 198, 228, 234, 235, 238, 240–2, 270, 271, 275, 276, 287, 289 regna omnia 39 regnum 32 relegatio, relegation 19, 39, 74, 76, 78–80, 119, 122–4, 155, 212 repression 15, 63, 160 Republic, Republican 1–4, 8, 18, 19, 21–5, 27, 31, 34–7, 39–44, 49–52, 56, 58, 62, 65–74, 94–105, 107, 109–12, 114, 116, 119–21, 123, 124, 126, 128, 129, 132, 135, 140, 142, 143, 147, 151, 156, 164, 174, 177, 179, 180, 193, 194, 204, 229, 233, 260, 268, 274–7, 281, 292, 293, 295, 296 rescript 4–6, 12, 84, 128, 144, 161, 192, 197, 198, 200, 204, 207, 209–17, 223, 234, 238–43, 247, 248, 253–6, 258–67, 269–73, 284, 287, 288, 291, 294, 295 responsum, responsa 261 revenge 77, 135, 136, 187 rhetorics 7, 24, 38, 41, 67, 95, 134, 154, 167, 191, 223, 242, 243, 252, 253, 258, 265 Roman Empire 1, 2, 6, 11, 197, 203, 204, 246, 262, 274, 287, 289, 290, 295 Roman Republic 19, 24, 35, 37, 74, 95, 98, 100, 204, 274, 275 Rostra 25, 26, 28, 54, 165 rule of law 6 safety 35, 81, 86, 87, 122, 136, 276, 280 salutatio, salutation 59, 199, 231, 252, 279 Saturninus 56 Senate 5, 9, 24, 25, 49, 57, 61, 65, 71, 75, 76, 84, 94, 97, 99–104, 107–9, 111, 113, 116–18, 124, 125, 129, 140, 141, 143–6, 148–51, 155–9, 162, 163, 169, 170, 171, 175–84, 186, 189, 193, 194, 208, 210, 220, 228, 229, 234, 236, 238, 247, 268, 274–7, 280, 281, 293, 295 senator, senatorial 53, 55, 62, 63, 81, 82, 91, 103, 125, 128, 129, 138, 140–2, 144, 148, 150–2, 157, 158, 163, 175, 176, 181, 183–5, 188, 189, 192–4,

199, 209, 220, 230, 236, 242, 267, 269, 273, 277–81, 284, 291, 295, 296 senatusconsultum, senatusconsulta 4, 156, 175, 238, 247 Seneca the Elder 9, 10, 13, 19, 23, 53, 56, 70, 80–2, 92, 100, 102, 104, 117, 127–42, 147, 150, 151, 157, 161, 169, 173, 177, 184, 188, 189, 193, 195, 202, 232, 234, 236, 268, 282, 285, 293, 297 Septimius Severus 20, 241, 242, 244, 264, 266, 268, 270, 272, 273, 277, 284 Severan period 1, 20, 241, 242, 247, 262, 274, 282, 286, 287, 290 Severus Alexander 1, 242, 255–7, 266, 270–3, 283 shared conviction 3, 17, 70, 114, 124, 292 C. Silius 155, 182 Solomon 16 sovereign 7, 11–14, 19, 23, 24, 33, 41, 43, 46, 52, 53, 57, 66, 67, 73, 74, 94–6, 100, 102–4, 106, 107, 115, 119, 129, 133, 180, 192, 193, 197, 233, 237, 252, 268, 281, 282, 290, 291, 293 sovereignty 8, 11, 13, 18, 22, 40, 55–7, 73, 99, 104, 110, 128, 169, 194, 216, 239, 268, 282, 283, 289, 290, 293, 296, 297 subscript 12, 245, 247, 252, 254–9, 265 Suetonius 3, 9, 10, 21, 22, 51–4, 56, 62, 70, 72, 74, 89, 90, 92, 93, 102, 112, 114, 115, 117, 127, 128, 135, 137, 147–9, 151, 155–7, 160, 163, 164, 197, 198, 224–33, 236, 237, 240, 274, 297 Tacitus 9, 10, 19, 22, 102, 119, 121, 127–30, 135, 143–5, 147, 148, 155, 157, 159, 163, 167, 175, 177–84, 193–5, 225, 228, 232–4, 236, 274, 293, 295 terror 14, 122, 127, 131, 146, 149, 160, 193 Tiberius 19, 85, 103, 115, 126–9, 134, 143–9, 151, 162–4, 170, 171, 174, 175, 177–82, 224, 228–30, 276, 277, 293 Tiberius Gracchus 55, 56 Titus 175, 230, 231 totalitarianism 11, 13, 15, 104

Index tradition, traditional 2, 7, 8, 10, 16, 18, 19, 22, 23, 31–7, 41, 42, 44, 47, 52, 54, 57, 58, 65–7, 74, 78, 81, 94, 96, 98, 102, 103, 106–12, 121, 132, 139, 146, 150, 153, 154, 164, 174, 176, 177, 180, 181, 185, 192, 193, 204, 207, 208, 214, 223, 229, 251, 259, 264, 270, 284, 285, 288–90, 293–6 Trajan 19, 54, 126–8, 133, 161, 162, 164, 166, 177, 184–92, 195, 202, 206, 211, 213, 225, 228, 236, 256, 268, 277, 293 trial 13, 14, 15, 23, 25–8, 35, 37, 41, 44–9, 51, 53, 54, 60, 64, 66, 67, 70, 71, 74, 76, 92, 113, 117, 122, 127, 128, 138, 140–2, 144, 147, 152, 154, 158, 160, 161, 163, 164, 167, 178–80, 182, 186, 195, 220, 228, 234, 242, 248, 251, 258, 266, 269, 273, 279 tribunus plebis, tribuni plebis, plebeian tribune 7, 8, 37, 119 tribune 90, 137, 185 tribunicia potestas, tribunician power 58, 70, 71, 82, 85, 90, 106, 171, 176, 194 triumvirate 14, 62, 64, 65, 89, 92, 116, 183 Tryphera 85–9, 293, 297 tyranny, tyrannical, tyrant 7, 13, 19, 23, 28–38, 43, 54–6, 58, 66, 71, 96, 128, 130, 132, 133, 135, 139, 148, 189,

465 196, 197, 218, 224, 230, 233, 234, 251, 263, 275, 276

Ulpian 8, 18, 20, 88, 110, 174, 211, 212, 214, 220, 237, 242, 243, 255, 261, 262, 272, 280, 282–9 universal consent 97, 98 vadimonia, vadimonium 36, 117 Valerius Asiaticus 167, 182 Valerius Nepos 219 Vespasian 110, 127, 149, 159, 164, 169–77, 199, 225, 230, 231, 233 veteran 53, 61, 138 vetus mos 158 violence 1, 37, 63, 64, 87, 179, 193, 222, 270, 276, 293 vir bonus 12 virtue 11, 14, 28, 29, 31, 40, 42, 43, 58, 76, 77, 91, 93, 96, 97, 99, 103, 109, 119, 122, 127–33, 135, 137, 139–42, 145, 159, 185, 188, 189, 193, 195, 198, 206, 218, 219, 223, 224, 226, 227, 232, 233, 235, 236, 241, 275, 281, 285, 287, 289, 291, 293 vis 113, 222 Vitellius 169, 175, 230 L. Vitellius 155 Voconius Saxa 220 warlord 19, 24, 32, 34, 56, 66, 92, 295

Index Locorum The abbreviations follow the convention of the Oxford Classical Dictionary. For the sake of clarity, epigraphical abbreviations have been spelled out. Acta Isidori col. ii, 1–52 152, 153–4 Acts of the Apostles 22.25–6 157, 315 23.27 157, 315 25.6–22 157, 315 AE (L’Année Épigraphique) 1953, 27–8 no. 73 225 Amm. Marc. 16.5.12 11, 303 Inscriptions of Aphrodisias 19 407 Appendices legis Romanae Wisigothorum duae 1.5 383 App. B Civ. 1.57 37 1.59 37 1.60 36 1.73.340 34 1.99 34 Aristid. Or. 26.32–3 201 26.33 196 26.37–9 202 26.39 196 47.23 205 Arist. Pol. 3.1285b.8–12 33 Ath. 4.29 150 BGU (Berliner Griechische Urkunden) I.140 213 I.267 350 II.473 351 II.511 152, 312

Caes. B Alex. 65.4 52 B Civ. 1.5 36 1.7 36 B Gall. 1.54.3 40 5.1.5 40 5.2.1 40 6.44.3 40 Cass. Dio 1.1 274 6.3.4 312 36.31.3–32.1 43 41.62 61 42.19–20 27, 275, 300 42.20 37 43.12.3 300 43.12–13 61 43.14.4 27 43.47.4 301 51.2.4–5 92 51.16.1 92 51.16.3 92 51.19.5–7 295 51.19.6–7 70, 91, 108 51.19.7 105, 110, 112, 120, 275 52.31–3 104, 281 52.33.3 331 53.16–18 275 53.17.5–7 92, 120 53.17.6 108, 275 53.17.6–7 1 53.19 277 53.22.5 303 53.28.2 11 53.32 101 53.32.5 108 54.10.5 108

Index Locorum 54.15.4 93 55.4.3 305 55.7.2 92 55.32.1–2 307 55.33.5 70, 90, 115, 117 56.24.7 308 56.27.1 308 57.7.2–6 148, 164, 277, 310, 331 59.3–6 275 59.8.5 148 59.8.7 150, 311 59.10.4 150, 311 59.10.7 150, 311 59.11.6 150, 311 59.18.1–3 277 59.18.2 149 59.18.2–3 149 59.20.6 150, 311 59.22.5–9 150, 311 59.23.9 150, 311 60.3.4 155 60.3.7–4.2 155 60.3.9–4.2 314 60.3.7–60.4.4 277 60.4.3–4 151 60.14.2–4 155, 312 60.24.4 155, 312 60.27.5 155, 312 60.28.6 151, 277 60.29.4–6a 155, 277, 312 60.31.1–5 155 60.31.7 155, 313 61.10.1 130 64.2.1–2 159 64.2.3 277 65(66).10.5 159, 164, 231 65(66).13.1 159, 317 65(66).9.5 274 67.4.2 160, 277, 317 67.12.2 160, 317 67.14.1 160, 318 67.14.3 160, 317 67.14.4 160, 317 67.17 160, 277, 317 68.10.2 161, 277 69.4.1–3 210, 321 69.6 214 69.7.1 164, 331 69.7.1–2 210 69.18.2–3 210 71(72).28.2–3 220, 331

71(72).35.2 204 72(73).9.1 222 72(73).10.2 222 72(73).12–13 222 74.1 277 74.5 268, 277 74.8 268, 277 74.9 335 74.12 277 74.12–14 277 74(75).1–5 277 75.16.3–4 268 76.7–8 278 76(77).17.1 331 76(77).17.1–3 268 77.8–9 280 77.17 278 78.1.1–2 270 78.1–4 278 78.3.3 270 78.9.4 286 78.17.3 271, 278 78.18.2–3 267, 271, 278 79.11 278 79.11.2 271 79.40 279 79.41 279, 296 79(80).13–14 279 79(80).14.3–4 272 80.1–2 280 80.1–2.3 272 Cic. Att. 5.13 40 6.2.4 41 9.7c 46 9.16 46 9.10.3 35 9.15.2 34 11.20 60 13.33a 52 14.1.2 300 16.16c 64 Balb. 43 52 Brut. 21 300 45.168 36 Cat. 1.4 36 1.27–8 36

467

468 Cic. (cont.) Deiot. 2.5–6 49 5–7 48 De or. 3.138 42 Dom. 37.100 51 43 35 Fam. 6.6.10 59 6.13–14 28 6.13.3 300 6.14 300 9.9.3 59 9.12.2 301 11.16.2 38 13.19 59 13.29 59, 301 Har. resp. 54 56 Leg. 3.11.3 63 Leg. agr. 2.35 38 3.5 31, 35 Leg. Man. 52 43 56 43 60 22 61 43 Lig. 9 30 11 7, 29 12 30, 34, 35 13–14 30 17 37 18 59 19 37, 38 23 38 29–30 59 30 41 31–8 45 Off. 2.60 42 3.45 33 Part. or. 37.130 38

Index Locorum Phil. 1.2.4 43 1.3 65 2.34.85 55 2.43.110 55 2.91 65 2.93 301 3.8.21 76 Pis. 21.50 52 Q. Fr. 1.1.21 64 3.5.1 43 Rab. Perd. 35 36 Rep. 1.16.25 42 2.26.47–48 32 4.10.11 42 Rosc. Am. 139 43 Top. 4.23 38 Tull. 3.7 64 Verr. II 1.27 41 1.71–6 41 2.8 43 2.25 41 2.60–1 41 2.68–75 41 3.82 35 3.152 64 3.213–18 43 CIL (Corpus Inscriptionum Latinarum) VI 266 257 930 169 3770 269 21046.33 272, 286 31207 169 31330 269 32327.11–12 266 32327.22–4 266 VIII 10570 223, 335

Index Locorum VIII, suppl. 17639 414 Cod. Iust. 1.9.1 376 1.18.1 271, 371 1.18.2 394, 396 1.20.1 253 1.21.1 255, 413 1.23.1 401 1.23.1–2 255 1.23.2 414 1.26.2 268 2.1.1 215, 328 2.1.7 408 2.1.8 256 2.3.2 335, 353 2.3.5 376 2.3.7 271, 376 2.3.8 401 2.3.9 401 2.3.10 409 2.3.11 410 2.3.12 411 2.4.1 370 2.4.2 376 2.4.3 403 2.4.5 409 2.4.6 411 2.6.1 391 2.7.1 376 2.8.1 376 2.11.3 345 2.11.4 348 2.11.5 349 2.11.8 369 2.11.12 405 2.11.13 410 2.12.4 360 2.12.7 271 2.12.8 394, 395 2.12.9 271 2.12.10 395, 396 2.12.12 394, 396 2.18.1 345 2.18.2 346, 349 2.18.5 353 2.18.6 360 2.18.7 391 2.18.8 393, 395 2.18.9 393 2.18.10 401

2.18.11 409 2.18.12 411 2.18.13 411 2.18.14 413 2.19.2 414 2.20.1 353 2.21.1 403 2.21.2 414 2.23.1 345 2.24.1 385 2.26.1 412 2.27.1 414 2.30.1 346 2.31.1 365 2.33.1 413 2.36.2 408 2.37.1 383 2.38.1 349 2.41.1 413 2.42.1 403 2.43.1 354 2.43.2 408 2.50.1 346 2.53.1 395, 396 2.53.2 385 3.1.1 356 3.1.2 362 3.1.4 414 3.8.1 353 3.8.2 377 3.13.1 364 3.15.2 365 3.22.1 412 3.26.2 360 3.26.4 413 3.28.4 361 3.28.5 370 3.28.7 385 3.28.10 394, 395 3.28.12 271, 394, 395 3.31.2 351 3.31.4 377 3.31.5 377 3.31.6 406 3.32.1 362 3.32.2 363 3.32.3 401 3.33.1 350 3.33.2 258, 357 3.33.3 377 3.33.5 408 3.33.6 411

469

470 Cic. (cont.) 3.34.1 370 3.34.2 385 3.34.3 395, 395 3.35.1 401 3.36.1 346, 351 3.36.2 397 3.36.4 414 3.36.5 414 3.37.1 377 3.37.2 401 3.37.2–3 272 3.37.3 406 3.41.1 272, 403 3.42.1 402 3.42.4 411 3.44.1 377 3.44.2 391 3.44.3 403 3.44.4 403 3.44.6 406 4.2.1 354 4.2.2 383 4.5.1 363 4.5.2 364 4.6.1 386 4.6.2 409 4.7.1 397 4.7.2 386 4.14.1 335 4.14.2 386 4.14.3 402 4.15.2 369 4.19.2 386 4.19.3 412 4.20.2 403 4.21.1 377 4.21.2 272, 403 4.21.3 408 4.24.2 402 4.24.4 403 4.25.1 371 4.25.3 411 4.26.3 386 4.26.4 391 4.26.5 404 4.28.1 335 4.28.2 349 4.28.4 347, 352 4.28.5 411 4.29.2 378 4.29.3 378

Index Locorum 4.29.4 404 4.29.5 406 4.29.6 409 4.30.3 386 4.30.4 397 4.30.5 415 4.30.6 414 4.30.7 404 4.30.8 409 4.31.1 397 4.31.3 404 4.31.5 410 4.31.6 410 4.32.1 329 4.32.4 365 4.32.5 357 4.32.6 371 4.32.8 397 4.32.9 397 4.32.14 413 4.34.1 413 4.35.1 365 4.35.2 397 4.35.3 391 4.35.4 414 4.35.5 414 4.39.2 255, 398 4.39.6 411 4.44.1 402 4.47.1 410 4.48.2 404 4.49.1 387 4.50.2 402 4.50.3 409 4.51.1 406 4.54.1 391 4.54.2 402 4.54.3 414 4.55.2 351 4.55.3 404 4.55.4 406 4.55.5 408 4.56.1 238, 262, 404 4.56.2 404 4.57.1 402 4.57.2 255, 402 4.57.3 406 4.58.1 383 4.61.1 365 4.65.2 378 4.65.3 383 4.65.4 402

Index Locorum 4.65.7 409 4.65.8 412 5.3.2 414 5.3.3 414 5.4.2 365 5.4.3 255 5.4.5 414 5.5.1 414 5.11.1 412 5.12.2 378 5.12.6 414 5.14.1 359 5.14.2 378 5.15.1 354 5.16.1 371 5.16.2 379 5.16.3 379 5.16.5 409 5.16.6 410 5.16.7 413 5.16.8 413 5.18.2 360 5.18.3 387 5.21.1 410 5.25.1 218 5.25.4 347 5.28.1 360 5.28.2 371 5.28.3 404 5.29.2 409 5.29.3 410 5.31.1 383 5.31.2 383 5.31.3 387 5.31.4 387 5.31.6 406 5.32.1 387 5.34.1 402 5.36.1 379 5.36.2 410 5.36.3 412 5.37.1 359 5.37.2 360 5.37.3 372 5.37.4 379 5.37.5 387 5.37.7 404 5.37.8 410 5.37.9 411 5.37.10 411 5.39.1 379 5.39.2 414

5.40.1 267, 384 5.41.1 379 5.43.1 372 5.43.2 267, 387 5.43.3 410 5.43.4 410 5.44.1 380 5.44.2 406 5.46.1 413 5.47.1 255, 347 5.51.1 372 5.51.2 380 5.51.3 388 5.51.4 410 5.53.1 357 5.53.3 388 5.54.2 255, 380 5.54.3 380 5.55.1 404 5.56.3 410 5.57.1 406 5.58.1 352 5.62.1 355 5.62.2 355 5.62.3 359 5.62.4 392 5.62.9 410 5.62.11 412 5.63.1 404 5.69.1 357 5.72.1 369 5.75.1 372 6.2.1 352 6.2.2 269 6.2.3 388 6.2.4 402 6.2.5 404 6.2.7 410 6.2.8 412 6.3.1 355 6.3.4 372 6.3.5 373 6.3.8 406 6.3.9 408 6.3.10 408 6.4.1 362 6.6.1 404 6.6.4 406 6.9.2 357 6.15.1 406 6.16.1 404 6.21.1 373

471

472 Cic. (cont.) 6.21.2 380 6.21.3 380 6.21.4 402 6.21.6 408 6.21.7 411 6.22 355 6.23.3 174, 270, 283 6.24.2 373 6.24.3 404 6.25.1 350 6.25.2 381 6.25.3 392 6.25.4 406 6.26.1 327 6.26.2 255, 355 6.26.3 404 6.26.4 408 6.27.1 335 6.28.1 355 6.28.2 408 6.29.1 381 6.30.1 384 6.30.2 405 6.31.1 384 6.31.2 388 6.32.1 405 6.35.2 361 6.35.3 402 6.35.4 405 6.35.6 411 6.36.1 413 6.37.1 218, 329 6.37.3 363 6.37.7 388 6.37.8 392 6.37.12 255, 414 6.38.1 381 6.39.1 345 6.42.1 373 6.42.2 388 6.42.3 389 6.42.5 406 6.44.1 381 6.44.3 405 6.45.1 370 6.46.1 347 6.46.2 357 6.46.3 389 6.46.4 409 6.47.2 373 6.47.3 407

Index Locorum 6.49.1 347 6.50.1 347 6.50.5 255, 405 6.50.7 409 6.50.8 413 6.53.1 349 6.53.2 356 6.53.3 356 6.53.5 409 6.54.1 218, 329 6.54.2 221 6.54.3 345 6.54.4 364 6.54.5 407 6.55.1 358 6.58.1 405 6.58.2 414 7.2.4 364 7.4.1 348 7.4.2 238, 398 7.4.3 402 7.4.8 408 7.4.9 412 7.8.6 414 7.10.2 414 7.10.3 411 7.11.4 407 7.11.5 414 7.14.1 255, 414 7.16.1 398 7.16.2 384 7.16.4 266, 414 7.16.5 414 7.19.1 405 7.19.2 405 7.19.3 405 7.21.1 366 7.21.2 358 7.21.3 414 7.21.4 410 7.26.1 381 7.26.3 414 7.26.4 414 7.27.1 414 7.29.1 389 7.30.2 412 7.30.3 414 7.32.2 416 7.43.1 328 7.45.1 361, 366 7.46.2 416 7.48.1 405

Index Locorum 7.52.1 381 7.52.3 398 7.53.1 359 7.53.2 398 7.53.3 384 7.53.4 392 7.55.1 411 7.56.1 402 7.57.3 255 7.58.1 366 7.58.2 407 7.58.3 416 7.59.1 371 7.62.2 255, 416 7.64.1 402 7.64.2 416 7.68.1 405 7.73.1 398 7.73.2 381 7.73.3 381 7.73.4 389 7.75.1 381 7.75.2 413 8.1.1 407 8.2.1 348 8.8.1 373 8.10.1 366 8.12.2 356 8.13.2 265 8.13.4 361 8.15.2 358 8.15.4 405 8.16.1 348 8.16.2 360 8.16.3 389 8.16.4 408 8.17.2 373 8.17.3 382 8.17.4 389 8.17.5 413 8.18.1 255, 362 8.18.2 392 8.18.3 407 8.19.1 411 8.20.1 267, 384 8.25.1 358 8.25.3 409 8.27.4 408 8.27.5 412 8.28.1 361 8.29.1 403 8.29.2 403

8.29.3 405 8.32.1 348 8.32.2 416 8.33.1 411 8.35.1 255, 373 8.35.2 382 8.35.3 399 8.35.4 405 8.37.1 258, 352 8.37.2 363 8.37.3 393 8.37.4 255, 403 8.38.1 389 8.40.1 352 8.40.3 361 8.40.6 385 8.40.7 390 8.40.10 416 8.40.12 411 8.42.2 413 8.43.1 256, 374 8.44.2 358 8.44.4 374 8.44.5 374 8.44.6 403 8.44.7 403 8.44.9 403 8.44.10 405 8.44.11 412 8.45.1 405 8.46.1 366 8.46.2 390 8.46.3 409 8.51.1 407 8.52.1 255, 407 8.53.1 363 9.1.1 345 9.1.2 370 9.1.4 403 9.1.5 403 9.1.6 407 9.1.7 411 9.6.2 390 9.6.3 392 9.6.4 409 9.8.1 256, 405 9.8.2 407 9.9.4 416 9.16.1 390 9.20.1 382 9.20.2 382 9.22.1 374

473

474 Cic. (cont.) 9.22.3 256 9.22.4 409 9.22.5 412 9.23.1 255, 374 9.23.2 382 9.23.5 408 9.32.1 359 9.32.2 390 9.32.3 393 9.34.1 412 9.35.2 412 9.41.3 253 9.46.1 416 9.47.2 375 9.47.4 399 9.47.9 416 9.49.3 409 9.50.1 375 9.51.1 271, 331 9.51.2 399 9.51.3 416 9.51.4 416 9.51.5 416 10.1.1 366 10.3.1 382 10.4.1 408 10.5.1 410 10.8.1 393 10.39.1 399 10.40.1 399 10.40.2 416 10.41.1 367 10.53.1 400 10.63.1 416 10.67.1 400 10.68.1 416 11.30.2 400 11.32.1 367 11.32.2 400 11.37.1 416 11.40.1 416 12.1.1 416 12.33.1 367 12.35.1 400 12.35.2 400 12.35.4 255 12.36.1 405 12.36.3 407 28.9 328 Cod. Theod. 1.2.9 253

Index Locorum 8.15.1 331 11.4 253 Coll. 1.8.1 390 3.3.4 325 3.3.5–6 327 11.7.1–4 212 15.2.5 331 Constitutio Antoniniana 78.9 286 Consultatio veteris cuiusdam iurisconsulti 9.8 385 9.11 401 Const. Deo auctore 7 174 Curt. 10.2.4–7 58 De vir. ill. 225 Dig. 1.1.1.pr 285 1.1.1.pr–1 287 1.1.4 288 1.1.7.pr 285 1.2.2.2 237 1.2.2.4 237 1.2.2.11 237, 239, 285 1.2.2.12 11, 237 1.2.2.12–13 237 1.2.2.32 162 1.2.2.33 4 1.2.2.46 23, 300 1.2.2.47–9 239 1.2.2.51–2 315 1.3.11 11 1.3.31 11, 283 1.4.1pr 283 1.4.1 11, 110, 174 1.4.1.1–2 284 1.5.17 286 1.6.2 211, 217, 325, 330 1.11 4 268 1.12.1 4 1.12.1–3 268 1.12.2 210 1.20.1–2 210 4.2.18 329 4.4.18.1 368 4.4.18.2 368

Index Locorum 4.4.18.4 284 4.4.38 339 4.8.13.2 69 5.2.28 212, 324 5.3.20.6d 238 5.3.22 238 5.3.25.16 332 7.8.22.pr 212, 324 8.3.16 330 9.2.45.4 88 9.2.50 288 10.2.41 344 14.2.9 217, 330 14.5.8 336 22.1.16.1 336 22.1.17.1 328, 332 23.2.57a 334 23.2.57.1 222 24.2.8 212, 323, 325 25.3.5.7 215 25.3.5.16 288 26.5.28 336 26.7.7.4 337 26.7.53 337 27.1.15.17 213 27.1.30.pr 269 27.3.1.3 337 27.4.3 213 28.2.26 69 28.4.3.pr 330 28.4.3 213, 219 28.5.93(92) 218, 269 28.5.93 337 29.1.24 161 29.2.97 338 29.5.1.28 214, 322 32.17.2 339 32.23 270 32.27.pr 338 32.27.1 339 32.97 290, 343 34.1.3 215, 328 34.9.12 221, 330, 333 34.9.16.1 367 34.9.16.2 221, 330, 333 35.1.50 329 35.2.11.2 332 36.1.1.13 340 36.1.19.3 332 36.1.23.pr 222, 309, 332 36.1.38.1 269 36.1.52(50) 322

36.1.76.pr 340 36.1.76.1 340 36.1.83 343 37.12.5 161, 319 37.14.1 314 37.14.17.pr 255, 334 37.14.17 262, 319 37.14.24 344 37.15.1.1 288 40.1.10 341 40.5.38 341 40.12.43 322 42.1.33 213, 327 43.16.1.27 88 46.1.68 341 47.12.3.5 214, 323 47.14.1 212 48.4.7–8 178 48.5.39.10 128, 144, 310 48.6.7 113 48.6.8 113 48.7.7 219, 222, 331 48.8.4.1 212, 323 48.9.5 207, 324, 325 48.18.1.22 214 48.18.1.27 220, 333 48.18.8.pr 69 48.18.20 369 48.19.5 161, 192, 320 48.19.13 5 48.19.28.7 217, 285 48.19.40 369 48.20.6 214 48.22.1 161, 192, 320 48.22.7.2 76 48.22.14 76 48.22.14.2 76 48.22.16 329 49.1.1.pr–2 284 49.1.1.1 215 49.1.1.2 334 49.1.21.pr 216 49.1.21 216 49.1.25 1, 257 49.8.1.2 285 49.14.31 222 49.14.47pr 341 49.14.47.1 342 49.14.48pr 342 49.14.48.1 342 49.14.50 342 50.4.14.6 324

475

476 Curt. (cont.) 50.5.8pr 343 50.16.240 343 50.17.32 288 Dio Chrys. Or .3.5 191 3.10 161 Diod. 17.109.1 58 17.109.2–3 57 18.8.2–7 58 37.5 40 39.20 40 Dion. Hal. Ant. Rom. 7.54-56 34 Epictetus Discourses 1.19 160 Epitome codicum Gregoriani et Hermogeniani Wisigothica 9.1 407 10.1 411 12.1 375 13.1 401 13.14.1 272, 286 Euseb. Hist. eccl. 2.22–3 157 2.22–5 315 2.25.5–7 158 Eutr. 8.23 272 FD (Fouilles de Delphes)III fasc. IV/3, 330 299 FIRA (Fontes Iuris Romani AnteIustitiani) I 78 213 III 100 213 185 1, 84, 305 Frag. Vat. 168 334 228 401 268 356 295 363

Index Locorum Fronto Ep. ad M. Caes. 1.6.2–3 215, 220 Gai. Inst. 1.5 174, 237, 285 1.6 76 1.53 211 1.94 325 4.184–187 36 Gell. NA 3.16.12 214, 322 Herodian 1.13.4 222 1.11.5 222 2.4.1–5 268 3.10.2 269 3.12.11–12 269 3.13.1 269 4.7.2 271 5.2.2 271 6.1.6–7 272 Hdt. 1.96–7 33 Hom. Il. 1.238–9 33 2.205–6 33 9.97-9 33 Od. 11.186 33 Hyg. grom. p. 91 301 IG (Inscriptiones Graecae) XII 3.174 1, 70, 84, 85, 86, 87, 305 IGBulg. (Inscriptiones Graecae in Bulgaria repertae) 2236 257, 264 ILS (Inscriptiones Latinae Selectae) 244 169 8393 63 Inst. Iust. 1.2.6 174 2.23.1 90 2.25pr 90

Index Locorum Joseph. AJ 15.6.7 93 15.10.3 305 17.11.1 117 18.65–80 129, 143, 310 19.266–71 155, 312 20.6.2–3 313 BJ 1.26.4 308 2.6.1 117 11.12.6–7 313 Juv. 4.94 160, 317 7.204 150, 311 Lactant. De mort. pers. 2.5 158 2.6 157, 315 Lex Dei 3.3 325, 330 Lex Irnitana IIIA 175 Livy 1.24–6 96 1.57–60 95, 96 Livy 2.18.8 65 2.29.9–12 65 3.26–9 95 3.44–8 95, 96 7.17.12 22 Epit. 134 303 Per. 77 36 86 36 Macrob. Sat. 2.4.21 101 Marc. Aur. Med. 1.16 218 4.12 218 4.48 218 4.49a 219 Mart. 10.72 129

Oros. 5.16.8 208 Ov. Fast. 4.383–4 80 Ib. 307 Pont. 307 2.2.109–20 77 Tr. 1.5.42 79 2.93–6 80 2.121–40 1, 70, 75, 76 2.131–3 307 3.6.27 79 4.9.11 77 4.10.33–4 80 5.2.37–8 77 Philo Leg. 350 330 Philostr. VA 1.3 284 7.8–10 160 7.8–11 317 8.1–4 160 8.1–4 167 VS 2.33 265 2.560–2 221, 332 2.582 205 11.30 375 Philstr. the Elder Ep. 73 284 P.Amh. 63.7–12 352 P.Berol. 7346 368 8877 152, 312 P.Cairo 10448 152, 312 P. Col. 123 244, 256, 352 P.Giss. 40.1 286

477

478 the Elder (cont.) P.Lond.Inv. 2785 152, 312 P.Mich. 9.529 344

Index Locorum 10.108–9 190 10.110–11 190 Pan. 65.1 11, 133, 188 77.3–4 162

P.Oxy. 6.1020 350 12.1405 351 17.2104 1, 257 42.3018 344 42.3019 335 42.3021 152, 312 43.3105 351 43.3106 1, 257 51.3614 335

Plut. Mor. 179 C–D 214 207F 308 781.4 196

P.Stras. I 22, 1–9 350

Vit. Cic. 39.5–6 47 39.6–7 28, 300

P.Teb. II 286 211, 213, 321 P.Yale 61 246 Plin. HN 7.149 306 Plin. Ep. 3.18 188 3.18.2 188 4.11 160, 317 4.22 161, 187 4.22.3 330 5.10 225 6.19 189 6.22 161, 162, 187, 319 6.22.5 330 6.31 161, 162, 185, 186, 318, 319 6.31.12 330 7.6 161, 162, 187, 320 7.6.8–13 320 8.14 175 10.58–60 191 10.65–6 189 10.79–80 189 10.81–2 191 10.83–4 190 10.96 319 10.97 161, 192

Vit. Ant. 72.3–4 93 Vit. Caes. 48.1.65 60

Vit. Demetr. 42.11 214 Vit. Sull. 30 60 33.1 35 Vit. Ti. Gracch. 19 55 Quint. Inst. 5.13.5–6 300 5.13.20 23, 300 5.13.31 23, 300 11.1.78 300 11.1.78–80 23 11.1.80 300 11.3.156 164 Res Gestae 1.1 56 1.2 101 3.1 101 5.1.3 102 5.6.35 109 6.1 102 8.5 97 13 101 30.1 101 32.3 101 34.1 97 34.2 97

Index Locorum 34.3 98 35.1 99 Sall. Cat. 29.3 36 51.33–4 45 Hist. 1.11 56 SB (Sammelbuch griechischen Urkunden aus Ägypten) 4.7366 368 14.11875 344 SEG (Supplementum Epigraphicum Graecum) IX 8 1, 70, 82–3, 306 8, 6 116 XIX 765 155, 315 XVII 759 7, 200, 248, 250, 251, 391 XXIX 127 331 XXXIII 938 267 LI 1579 267 Senatus consultum de Pisone patre 145 Senatus consultum Silanianum 322 Sen. Controv. 10, praef. 14 304 Sen. Ad Pol. 7.2 173 Apocol. 6 137 7.4–5 149, 151 8–10 140 8.2 155, 313 10 140, 141 10.4 155, 313 11.1 155 11.2–5 155, 312, 313 11.5 155 13.4 155 14 141

Ben. 3.27 70, 81, 138 5.24 53, 138, 301 Clem. 1.1 134 1.1–3 173 1.1.2 131, 133 1.1.3–4 132 1.3.3 136 1.5.6 136 1.7.4 136 1.8.4 134 1.8.4–5 136 1.9 82, 305 1.9.1–1.10.3 134 1.10.3 109 1.12.1–2 135 1.12.4 137 1.13.4 136 1.14.1 133 1.15.2–7 129 1.16.2–3 137 1.17.3 137 1.18.2–3 137 1.19.5 136 1.19.9 134 1.20.1–1.23.1 136 1.25.1 137 1.26.5 136 2.2.2 137 De Ira 1.20.4 137 Helv. 12.10.4 140 Sententiae et epistulae divi hadriani 209, 325–7 2 325 3 326 4 326 6 326 7 326 9 326 10 327 11 327 13 326 Schol. Juv. 1.155 150, 311 SHA Commod. 7 337

479

480 SHA (cont.) Hadr. 11.3 225 18.1 210 22.11–12 210 22.13 210 Heliogab. 16.4 272 M. Ant. 10.2–3 11, 270 Marc. 9–12 219 10.7–12 220 11.6 210 13.1 211 22.4 331 Opil. 13.1 271 Pesc. Nig. 7.4 268 Pius 2.11 210 12.1 218 Verus 8.8–10 219 SIG (Sylloge Inscriptionum Graecarum) 888 257, 264 Stat. Silv. 5.2.75–97 318 5.2.91–3 318 Str. 8.5.5 (366) 308 14.5.4 (670) 304 Suet. Aug. 27 69, 92, 224 27.5 228 29.1 117 33 117 33–4 224 33.1 1, 90, 115, 226 33.1–3 70 33.2 309 33.2–3 90 33.3 112 51.1 306, 307 53.1 102

Index Locorum 53.1–2 224 53.2 70, 90, 115 56.1 102 97.3 70, 90, 115 Calig. 5.1 311 16 149 16.2 149 16.2–3 230 24.3 150, 311 25.1 150 30.1 137 30.2 150, 311 33–4 224 33–5 149, 230 Claud. 11.1 155, 312 13.2 155, 312 14 149, 155, 156, 226 14–15 224, 230, 314 15 151, 164, 227, 230 15.3 230 15.4 314 27.2 313 29.1 155, 312, 313 30 137 33 164 36 155 37.2 155, 312 38 137 Dom. 1.3 230 3.1 274 8 149, 227 8.1 164 8.1–3 160, 230, 317 8.3 317 10.2 160 10.3 160 14.4 160 15.1 160 10.2 317 10.3 317 14.4 317 15.1 318 Galb. 5.1 159 Iul. 42 53 43 53, 226, 302

Index Locorum 44 54 46 49 75.4 300 76 56 77 54 79 56, 62 78 62 84 62 Ner. 15 149, 157, 227 16.2 158 36.2 158, 316 Tib. 31.1 229 31.2 147, 228 33 148, 224, 228 36.1 310 60 229 60–1 224 61 310 61.1 229 61–2 148 61.2–3 229 75 144 Tit. 6 231 Vesp. 10 149, 159, 230, 231 13 159, 317 21 231 23 200, 231 23.2 231 Vit. 10.1 316 Tac. Ann. 1.2 102, 121 1.3.4 307 1.34–5 312 1.72.3 307 2.32 178 2.34 179 2.67 178 2.79 145 2.85 310 3.1–19 144 3.10 143, 180 3.12 145 3.22 178 3.24.2 306

3.27 183 3.28 183 3.38 143, 309 3.51 144 3.69 180 3.70 143, 181, 311 4.6–7 181 4.15 178 4.22 143, 179 4.37.3 103 6.23 85 6.26 182 11.1–2 167, 313 11.1–3 155, 312 11.2 182 11.26–38 155 11.34–5 313 11.34–8 182, 313 12.3.4–8 155, 313 12.42 155, 314 12.43 164, 167 12.52 313 12.60 156 13.2 130 13.4 157, 167 13.11 130 13.19–22 158 13.20 130 13.33 157, 183 13.33.1 158, 315 13.42 130 14.41 157 14.42–5 158, 184, 315 14.50 157, 158, 183, 316 15.44 158 14.46 313 15.44.2–5 315 15.66–74 158 15.66–78 316 16.8.2–3 157, 316 Dial. 21.5–6 300 Hist. 3.83–6 175 4.2–4 175 4.3 175 4.40 159 Tert. Apol. 4.4 158 5.3 158

481

482 Ulp. De officio proconsulis 8 325, 327, 330 Val. Max. 5.9.1 208 6.1.5–6 208 6.2.11 53, 302 7.7.3–4 70, 81, 82, 309 8.1. amb. 2 40 8.7.6 41 9.15 61 9.15.1 302 9.15.2 304

Index Locorum Vell. Pat. 2.112.7 307 2.14.3 51 2.31.2–4 43 2.91.2 304 Vitr. 6.5.1–2 49 Xen. Cyr. 8.1.22 58 Zos. 1.11.2 272