Roman Military Law 9780292758162

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ROMAN MILITARY LAW

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Roman Military Law c. E. BRAND Preface by Charles L. Decker

^ \ \ U N I V E R S I T Y OF T E X A S P R E S S , A U S T I N & L O N D O N

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Library of Congress Catalog Card No. 68-22583 Copyright © 1968 by C. E. Brand All rights reserved Printed by The University of Texas Printing Division, Austin Bound by Universal Bookbindery, Inc., San Antonio ISBN 978-0-292-75816-2 (e-book) ISBN 978-0-292-75817-9 (individual e-book)

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PREFACE

For too long the lawyers of America have practiced their profession only in the present, regarding Runnymede as the birthplace of the rights of man, and confining their actual perspective to a much more recent past. In this book Colonel Brand introduces us into the broad sweep of legal history; for in portraying the evolution of Roman military law he in fact delineates for us the essential governmental concepts which regulated the daily life of all Roman citizens, without as well as within the army. In these days of emphasis on the technological and the scientific, he invites us to discover with him the underlying emotional background and the ideologies upon which Roman character was molded. It is this significant awareness of context which pervades the book and sets its tone. In this perspective we come to realize that relationships among people—the subjectmatter of all law—hinge essentially upon just these nonsdentific qualities of man as a human being in a social complex; that it is in fact the great emotional qualities—love, honor, heroism, courage, compassion, loyalty, integrity, "good faith"—things inherent in the inner man, which find their place in tradition and custom and are ultimately woven into the fabric of the law. Reflecting upon this text and its implications, I have become increasingly convinced that it should be read and its message absorbed into the consdousness of every lawyer—military and civilian. With a basic comprehension of what lies between these covers, for example, we could have avoided much of the stumbling that accompanied the reforms of military law after World War II and found answers to the difficult questions encountered, which

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would be consistent with the requirements of military command and confirmed by military history. For the lawyer or officer who would increase his understanding and broaden his professional perspective, Colonel Brand has performed a significant service in writing this book; and I commend it to old and young alike. As one of the many military lawyers who have profited from his teachings, it is a pleasure to express the sincere thanks of us all to our great teacher and understanding counsellor. CHARLES L. DECKER

Major General, U.S. Army, Retired Formerly the Judge Advocate General U.S. Army

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FOREWORD

Military Law Defined Military law, as this expression is understood in Anglo-American militarylegal literature, and as used in this treatise, refers to that branch of criminal law which is especially prescribed for the government of persons in the military establishment. It is in general administered through military courts, which are commonly known as courts-martial. It applies with particularity to what are known as "military offenses"—such as desertion, misbehavior of a sentinel, insubordination toward military superiors, cowardice or other misbehavior in the face of the enemy, and so on—but may also extend to the ordinary crimes of which any citizen may be guilty. Unless persons in the military establishment are especially exempted from liability to the ordinary criminal law (which is not usually the case), such persons may therefore find themselves subject to prosecution before either courts-martial or the ordinary criminal courts, or both, for the same offense, separately defined and denounced in military law and in the ordinary criminal law, each of which prescribes a separate and different penalty. Such conflicts of jurisdiction are governed by law or by comity between the military and civil authorities. Military law, as here discussed, does not include those "military laws" found among the general statutes which regulate the composition, pay, and authorized uses of the military establishment, or which establish or regulate its schools, posts, organizations, and stations; nor even those parts of the ordinary criminal code which provide for the punishment of rnili-

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tary personnel for certain offenses (such as, for example, intimidating election officials) in the ordinary courts of justice. In other words, the military law with which we are here concerned is the administration of justice or the regulated exercise of disciplinary control within the military establishment, through its own courts or other disciplinary agencies.1 In the very few countries in which no military courts exist, military law practically loses its separate identity, becomes a part of the ordinary criminal law, and is administered as such. Military law does not, however, include all administration of justice through military courts. In times of public emergency it may become necessary to supplant the ordinary civil authority in restricted areas of domestic territory by a temporary regime of military authority. Such a regime may involve not only the employment of military police, but also the administration of justice, according to the law of necessity, through the agency of military courts. This status of reinforced governmental authority through the employment of military agencies, resorted to in defense of the state against its enemies in times of public emergency, is characterized in the English-speaking countries as a regime of "martial law." In France and certain other European and South American countries it is called "state of siege." In other countries it is variously characterized as "state of reinforced protection," "suspension of constitutional guarantees," "state of emergency," and so on. This important emergency device of government 1

It is of course prerequisite to the exercise of military command that the commander must have some latitude of disciplinary control over his military subordinates that is independent of the judicial process. This independent disciplinary authority was the basic order of control in the Roman armies and, as we shall see, was subject to but few limitations. In our own military services, however, it has always been rather narrowly restricted through stringent legal limitation upon the extent of disciplinary punishment which a commander may impose simply by virtue of his command authority; and there is even more drastic limitation upon his authority to summarily adjudge an accused soldier guilty, or subject to disciplinary punishment whether guilty or not of a specifically defined offense, in case the soldier should demand trial by courtmartial.

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through which the jurisdiction of specially constituted military courts is extended to administer a law of necessity over the civilian populaiton must be sharply differentiated from the entirely regularized administration of justice within the army itself, which we know as military law. Such a regime of government through military agencies in occupied foreign territory is known as tfmilitary government.'' It differs from the regime of public emergency just described only in that its subjects are foreign rather than domestic. It is equally different from military law. Necessity of Separate Administration The necessities for a separate and distinct administration of justice within the military establishment are to be found in a number of considerations of varying cogency. It may be said that none of them are compelling; that, like state and city police forces, the government civil services, and a great number of societies and professions which have their own peculiar codes of ethics or of professional conduct, the military services are subject to the ordinary laws of the land, and that other agencies of justice are unnecessary. It is true also that examples may be found, both ancient and modern, of the administration of justice within the military forces through the agency of the ordinary criminal courts. In point of fact, little is known with any exactitude of the actual administration of justice in the armies of antiquity. In such a social order as existed in the days of feudalism, however, when there were no standing armies, when one's landlord was at the same time local law-giver and military commander, and when attending the wars was a regular part of the business of "manoring," it is clear that there could be no sensible distinction between military and civil law; and none, in fact, was made. Without doubt, in time of war, some more or less rough-and-ready system of summary justice was resorted to by the military commander, both in feudal times and in the citizen armies of antiquity; and this beginning of military law came in time to be regularized and codified. The extension of such a system to the peacetime govern-

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ment of a standing army was, however, a very different matter. We shall have occasion to observe later that in England such an attempt, accompanied by certain abuses, led to the Petition of the Right and the practical outlawry of military courts during a large part of the seventeenth century, after which, however, they were restored under the Mutiny Act (1689), with limited jurisdiction. More modern instances of the administration of military justice through the ordinary criminal courts are to be found in, for example, Germany and Austria, where there were no military courts whatever for ten years or more after the termination of World War I. The absence of military courts and of a separate code of military justice is, however, the rare exception in well-organized governments. It is substantially correct to state that in all countries of which we have knowledge— ancient and modern—the existence of a standing army has been accompanied by the provision for the government of that army under a separate code of military law, administered through special courts. Reasons for this universal practice are not difficult to discover. The primary reason for an administration of military justice that is separate from the civil judiciary lies in the necessity of independent self-sufficiency of the army, enabling it to move freely within its own country, without regard to the local judicial machinery of the state, and, more important still, to project its operations beyond the territorial limits of the state, where the jurisdiction of the civil judiciary ordinarily ceases to function at all. Although it would be possible to establish extraterritorial civil courts in such cases, the obvious solution consonant with the accepted principle of self-sufficiency of the army is to provide it with courts of its own, suited to its particular purposes, with jurisdiction based simply and solely upon the personal status of its subjects. Since the interests of efficiency require that an army train and prepare in time of peace for war service, it is natural that this system of military justice, like the system of command, and like the technical and other equipment of the army, should be developed and put to such tests of usage as may be practicable in time of peace. It is not

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in derogation of this principle but in confirmation of it that in some countries certain modifications of the peacetime administration of military justice are contemplated in the event of war. A separate system of military justice is further necessitated by the highly specialized nature of justice in an army. By reason of the requirements of command the organization of an army, as a community, is vastly and fundamentally different from the organization of a civil community. The civil community is ordinarily conceived of as existing for the benefit of the individuals that compose it, and its organization and standards of conduct prescribed by its laws and customs are designed primarily to promote the happiness and well-being of its individual members. In an army, on the other hand, individuals exist for the benefit of, and as a part of, the organized fighting group. Of course the army itself, as an institution, is conceived of as serving the ultimate purpose of the individual well-being of citizens—in a democratic state, at least. This it does through securing the regime of the civil laws, which are designed to serve that purpose, against molestation by either domestic or foreign enemies of the state. Within the army itself, however, in order to serve effectively this higher ultimate purpose, individual well-being becomes secondary to the group efficiency of the fighting unit. Guided by this different primary motive, the mode of living and standards of conduct in an army naturally diverge from the corresponding institutions of civil life. Law and administrative customs best designed as normative of this independently oriented military community must, of course, reflect these differences. Since some of the differences at least are fundamental, it is not easy for a judge who has never exercised command nor lived in a military community to appreciate, and therefore to properly apply, the changed norms. It must be borne in mind that justice is fundamentally a matter of the feeling of the judge in which is epitomized, as an ideal, the feeling-of-right of the community. However modified by schooling or by statutory directions, this personal sense of right and wrong upon which the administration

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of justice at its highest level ultimately depends, cannot be disassociated from his own experience. Military justice therefore demands military judges —judges whose experience in military life and tradition has become a part of their sense of justice and a necessary background of their judgment. While no detailed consideration of the differences between military and civil justice need be undertaken here, it may be well to note some of the significant distinctions. Most fundamental among the new conceptions which the soldier must acquire is the absolute impossibility of disobedience of orders. An army must be commanded; and military justice can never lose sight of the chain of command and its responsibilities. Hence the rigors of military law regarding insubordination in any aspect, the sharp distinction of the officer caste, and the high importance of relative rank. Command, in turn, is necessitated by the requirement of unified control, and by the peculiarly military requirement of discipline. Hie nature of war is essentially such that the military duty of the individual soldier must often require him to act in a way that is highly inconsistent with his fundamental instinct of self-preservation. At the same time, failure of the soldier to perform such a duty is in general fraught with far more hazardous consequences to the state than can result from any dereliction from duty on the part of an ordinary citizen. This hazard results directly from the importance of time and space factors in military operations, and indirectly from the susceptibility of the masses, even in an organized army, to the suggestion of the example of even a single individual. It is this consideration which explains in large measure the adage of Napoleon that "discipline is the first quality of the soldier; valor is only second." It is discipline which must overcome in the least courageous individual the physical instinct of self-preservation and enable the army to act with the single mind of its commander. This conception of discipline does not inhere in the ideals of a civil community, and it cannot be taught or learned as a lesson from a book. The civilian not only does not appreciate the hierarchical system of the army— so essential to its discipline; hierarchy and caste are, on the other hand,

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repugnant to his most cherished ideas of independence, equality, and democracy. In order to be transformed into a disciplined soldier he must, therefore, upon entering the service, come to live in his relation to command, and to respect it much as he does the force of gravity, or the march of time. From his viewpoint in the chain of command and only from that viewpoint can either the judge or the judged appreciate the significant relations in the military establishment which are fixed and regulated by the disciplinary judgments of military law. Another peculiarly military concept is the "security" of a military command, post, or camp, which is regarded within the army as a matter of far higher importance than the civilian mind can ordinarily comprehend. Hence the authority, responsibility, and inviolability of sentinels. The background here is much the same as in the case of discipline, the particular hazard being focalized in the duties of the sentinel to protect the sleeping camp from surprise by the enemy. Security, like discipline, is of course practiced in time of peace, when no actual hazard is present. Even ordinary crimes may have an entirely different order of importance in a military community. When hundreds of men are obliged to live together in camp or barracks with more or less free access to the private property of their fellows, property rights require a high order of protection. Petty larceny becomes a major crime. The barracks thief is shown no mercy by a court-martial; for the officers of the line who compose it are themselves responsible for the morale and well-being of their own companies and realize full well the demoralizing effect that the presence of such an individual in barracks may have. A dishonorable discharge from the army and six months or more imprisonment at hard labor may appear to the civilian mind a very severe penalty for the theft of a shirt or a fountain pen; but the court-martial does not mete out justice in vacuo. It must consider the effect of the presence of the thief upon his squad room or tentmates—the feeling of helplessness against this hidden enemy, the tense atmosphere of mutual suspicion and mistrust, the spying upon and per-

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sonal search of innocent persons which must be resorted to in attempting to apprehend the thief—and its judgment must be governed by the interests of the organization. There is a further significant distinction between civil and military life which must be mentioned. Society as a whole has no choice as to its members. It must make the most of individuals who accidentally compose it. Through the processes of its ordinary courts, execution of a death sentence is its sole means of ridding itself of an undesirable member. The army, on the other hand, exercises initial choice in selecting its personnel on a basis of fitness; and courts-martial have always before them the alternative of casting back upon society, by discharge for cause, those individuals who cannot, with reasonable effort, be converted into useful parts of the fighting units. In order to discourage the malingerer, who deliberately adopts this means of escape from military service, such regurgitation by the army of individuals which it cannot assimilate is in general accompanied by severe punishment. This punishment has its most distinctively military character in the odium and disgrace which the customary morality of the army— always a vital part of military law—attaches to the dishonorable discharge. It must be clear that this entire question of the moral fitness of an accused soldier for military service, the detection and subsequent disposition of the malingerer, and the appropriate disciplinary use of the dishonorable discharge are again matters with which only military judges can deal with sympathy and understanding, and therefore with elemental justice.2 2 This viewpoint is well expressed in the following quotation from the report of a French deputy on the project of a military code for his country in 1857:

It is natural that there should be called to decide questions of discipline those who make command and obedience the science and habit of their life. The army can well appreciate the equity of only those punishments that come from its own ranks. It is only before a judge who is his peer, who is acquainted with his habits, understands his language, knows his duties—and practices them himself—that one convicted may find indulgence without danger if there has been but a weakness, justice not suspected if there has been crime. Before the ordinary tribunals the soldier encounters magistrates who cannot have instilled into their hearts that passionate and profound senti-

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As to procedure, the ends of military justice are best served by more speedy and more certain action on the part of the court than is possible under the usual safeguards of individual rights which the civil law provides. Military trials are therefore in general of a more summary nature and less technical than trial by a civil court for a crime of corresponding gravity.3 A high order of individual justice as well as of military efficiency is nevertheless possible because of the specialized nature of the administration of military law, and particularly because of the high degree of familiarity of military judges with both the men and the problems with which they have to deal. The conditions of a system of military justice separately administered are thus admirably suited to its requirements, making possible the greater speed and certainty which military action requires, and at the same time effecting a high order of justice both to the individual and to the army. Disciplinary Authority as a Prerogative of Command It is a further and essentially distinguishing feature of military jurisdiction as an instrument of discipline that it is, historically, conceptually and functionally, an inherent prerogative of military command, and not a statutory creation. Statutes serve but to limit and regulate its exercise. The commander of a Roman army in the field had unquestioned power of life and death over all his subordinates. Neither the Senate nor the sovereign and all-powerful Centuriate Assembly of the People undertook to restrain or regulate this prerogative of Roman military commanders in any way. The curia militaris of the early English kings was likewise not of statutory origin, nor subject to statutory control, but an incident of the king's command of ment of military duty which is the guide and the soul of the judge of the sword. (Quoted by Andre Taillefer, La Justice Militaire dans L'Armee de Terre en France et dans les Principaux Pays, p. 5 ). 3 See, however, dicussion following regarding changes in military judicial procedure in the United States after World War II.

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the army, necessary at home for disciplinary purposes, and essential abroad in the absence of all other law.4 The concept of command, to which an army must be subject in order to be recognized as such under international law, necessarily implies authority in the commander to enforce obedience. A commander without such authority is obviously, in the ordinary meaning of language, no commander; and an army without a commander likewise, by definition, ceases to be an army.5 The designation of the President as Commander-in-Chief of the armed forces by the Constitution of the United States necessarily endows him with this prerogative of command, according to the law and custom of war. The Constitution, however, likewise limits the exercise of the prerogative by expressly authorizing Congress to make rules for the government of the armed forces. The original Articles of War prescribed by Congress for the government of the army in 1776 were virtually an adoption of the British Articles of War in force at that time. They remained in effect, without substantial change, until after World War I, some 150 years later. Under them a judge advocate prosecuted in the name of the United States before a general court-martial of thirteen officers, and also performed certain functions of a defense counsel and adviser to the court. The commanding gen4

Parliament, in 1628, compelled the assent of Charles I to the Petition of Right, abolishing the curia militaris because of its abuse by the king to deprive nonmilitary subjects of their rights in the common law courts. Practical necessity, however, required military commanders on both sides, in the civil war following, to use courts-martial in disciplining their armies. Legally constituted courts-martial were, however, not again authorized until the Mutiny Act of 1689 restored to King William the command prerogative to punish mutineers and deserters by "death or such punishment as by a Court Martial shall be inflicted." Confirmed through reenactment annually, with many modifications and extensions, this statutory limitation upon military jurisdiction has constituted the continuing basis of British military law, from which our own system was borrowed. 5 See Re Yamashita, 327 U.S. 1, 90 L. Ed. 499, 66 S. Ct. 340, where the court states, "the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command . . . "

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eral appointed the court, and its judgments were normally effective when approved by him. Certain sentences required the approval of the President before execution, but no system of appellate review was provided. Since World War I, however, there has been a growing tendency on the part of the legal profession, and of popular opinion, to become aitical of executive control of courts, even though they be executive courts. They have sought to stress the concept of "administration of justice" against the military concept of "enforcement of discipline'' and have succeeded in effecting, by law, great limitations upon disciplinary authority, and correspondingly broad extensions of the practice of the civil courts to the operation of courts-martial. For example, in the revision of the Articles of War in 1920 there was provided, for the first time, a separate prosecutor, defense counsel and legal adviser (law member) of the court, all of which functions had formerly been performed by the judge advocate. The law member was also made to serve many of the functions of the judge of a civil court, and was required to be specially qualified in the law for that purpose. Commanding generals who appointed general courts-martial were provided with legal advisers (staff judge advocates) and required to seek their advice (though not necessarily to follow it) before acting upon any case. There was also provided a system of legal review for every general court-martial case under the direction of the Judge Advocate General, with authority to disapprove records found legally insufficient. These changes marked great advances in the legal control of disciplinary action, and of legal protection of the individual soldier against unjust punishment by his superiors; and they apparently caused no substantial loss in effectiveness of disciplinary control. The experiences of World War II developed a still sharper cleavage between legal and military thought regarding the proper operation of military jurisdiction as an instrument of discipline. Due probably to the large influx of civilian lawyers into the military establishment during the war, and occasional abuses by aggressive commanders of their military authority,

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the enactment of the Uniform Code of Military Justice after the war virtually removed from the control of military commanders all legal measures of disciplinary action which might be contemplated against personnel under their command, whether through judicial process or otherwise, except as administered by the virtually independent military judiciary, set up by the Code, operating through patterns of procedure modeled after the procedure of the ordinary criminal courts, including the provision of a Court of Military Appeals composed of civilian judges with final authority over every case in which the sentence includes a punitive discharge or confinement for one year or more. The stifling effect of such legal strictures upon day-to-day disciplinary administration was dramatized by a recent revision of the Code, restoring a substantial measure of independent disciplinary authority to military commanders in the case of minor infringements of discipline, which resulted in an immediate reduction by some 75 percent in the number of trials by summary court-martial. There remains in effect, however, the technically elaborate time-consuming and independent system of military justice, culminating in the civilian Court of Military Appeals, to which resort must be made in the case of all serious offenses. As a result of these continuing strictures upon command authority, trials by court-martial are now avoided where possible, through administrative discharge of the offender,6 his surrender to the civil authorities for trial, or otherwise. This is, of course, and of necessity, to the detriment of discipline; and there is substantial doubt among officers of the military judiciary as well as among officers of the line whether the removal of the courtsmartial from command supervision and the imposition upon them of the technical and dilatory procedures of the ordinary criminal courts will not 6

Legislative proposals (S. 2009, 90th Cong.) now pending would establish a separate system of trial and appellate tribunals for the handling of administrative discharges. This system would also use the Court of Military Appeals as its highest appellate tribunal.

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effectively disable them from performing their primary function as disciplinary agencies in time of war or other grave public emergency. In such crises, provision for which is of course the entire raison d'etre of the military establishment, speed and certainty of appropriate disciplinary action would appear to be of higher importance to the survival of the state than assurance of the last drop of abstract justice to the individual accused, whose life is, after all, committed to his commanders to be utilized, and expended if necessary, in the state's best interests.7 7 Stated as a legal proposition: Can the Army, consistent with the requirements of discipline and the prompt obedience of orders, afford to the disobedient soldier the refinements of "due process of law" which the Supreme Court prescribes for the trial of civilian offenders? Clearly there is no such requirement in the Constitution; and as surely the Army cannot in reason legally emasculate its military commanders on the field of battle.

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ACKNOWLEDGMENTS

This inquiry into ancient sources for such trace as may be found of a system of disciplinary control in the Roman armies was begun some thirty years ago in connection with graduate studies in the Yale Law School. The text here presented, based upon that study, will be found to vary but slightly from the original version contained in the Yale thesis. The translations of the basic Greek and Latin texts have, however, been greatly improved by the many careful criticisms and fruitful suggestions made by Professor Clyde Pharr and Mrs. Pharr of The University of Texas at Austin. They have both, painstakingly and critically, read the whole of the manuscript and have discussed it fully and frankly with me. Dr. and Mrs. Pharr have the unique distinction of combining their generally recognized eminence in classical scholarship with a correspondingly exhaustive knowledge of Roman law. Of particular importance in the field of Roman law is their monumental and definitive translation of the great Theodosian Code—a work of truly magisterial stature in both scope and profundity—and, more recently published (1961) under Dr. Pharr's editorship, a comprehensive collection and equally authoritative translation of Ancient Roman Statutes which, although of highest importance, have been generally known heretofore, even to serious students of Roman law, only by title or summary reference. Against this background the reader will easily understand the great pleasure it gives me to express my profound thanks for my rare good fortune in having the distinguished counsel and timely assistance so generously given

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by Dr. and Mrs. Pharr, both with the translations and in the editing and bringing up to date of the bibliography and the text of this study. Thanks are also due to Dr. William S. Thurman, formerly a graduate student in The University of Texas under Dr. Pharr's tutelage, for his translation of Greek texts and other valuable assistance with recent bibliography. C. E. BRAND,

Colonel, U.S. Army, Retired San Antonio, Texas

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NOTES O N THE SOURCES

Former Works on the Same Subject The earliest work of merit, either ancient or modern, on our immediate subject is a doctoral thesis presented to the Faculte de Droit de Paris in 1894 by Joseph Bray under the title Essai sur le Droit Penal Militaire des Romains. This thesis contains an excellent general characterization of discipline in the Roman armies, but is devoted in the main to an enumeration of offenses and punishments. Written before the appearance of Mommsen's great work on Roman criminal law (Romisches Strafrecht, 1899), it fails to observe the close relationship between military discipline and the ordinary criminal administration, or the foundation of discipline (coercitio) in Roman family life. Furthermore it does not discuss or mention such points as the tactical, administrative, or disciplinary organization of the legions, the chain of command, or organization of small units, all necessary to any measure of concrete comprehension of the general subject; nor does it mention any of the few important Roman military codes which have been preserved. With allowance made for these deficiencies, the conclusions reached as to the general character of Roman discipline are surprisingly accurate. The work merits consultation for this reason alone. Andre Taillefer, French doctor of laws and former artillery officer, in his book La Justice Militaire dans L'Armee de Terre en France et dans les Principaux Pays (Paris: 1895), has a brief introductory chapter on Roman military law which is not without merit as a matter of general comment. The same may be said of the introductory chapter in Paul Imbert's work, La

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Justice Militaire dans les Armies en £tat de Guerre en France et dans les Principaux Pays, which borrows freely from Taillefer. Both of these are, however, very brief and of less value than Bray's essay. George W. Currie, late professor of Latin and Greek, published an extract from his thesis, entitled The Military Discipline of the Romans from the Pounding of the City to the Close of the Republic. This work is a statistical study of the disciplinary cases reported in the ancient histories during the Republic, for the purpose of exhibiting the relative severity of punishments. It is valuable as a collection of cases, and as an objective statistical treatment of its precise subject. Its value for more general purposes is limited, however, by the limited application that may fairly be made of legal statistics taken from nonlegal sources. By far the most valuable former work on this subject is an article with substantially the same title—* 'Punitive Law in the Roman Army"—by Albert Miiller, published in the Yearbooks for Classical Antiquity in 1906 ("Die Strafjustiz im romischen Heere," 17 Neue Jahrbucher fur das Klassische Altertum, 550-577). This fine piece of research contains an exhaustive enumeration of offenses and punishments occurring in the Roman armies, as reflected in Justinian's Digest and the great codes of the later empire, and as garnered in historical fragments over the millenium of early kingdom, republic, principate, and empire preceding. This material is organized for presentation with a view to modern concepts and patterns of military justice, with little regard for the passage of centuries between instances reported, and with no regard for the political or military background, either in formal organization or in ideological orientation. In other words, no attempt is made to reconstruct a Roman view of the administration of military discipline, nor to describe or characterize it, conceptually or functionally, in the light of contemporary institutions and ideologies in any one of the diverse periods of Roman history, or in a composite of them. This work, however, presents an abundance of source materials, duly authenticated and corre-

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lated according to the plan of presentation adopted, and it is of the highest value in that capacity. In a much more recent work, under the title Roman Military Venal Law ("Das romische Militarstrafrecht," Rheinisches Museum fur Philologie, Frankfurt am Main, i960,103 N.F. pp. 289-319), Erich Sander, observing that the exercise of penal law in the Roman armies was essentially a matter of discipline, personally administered by the military commander, presents an illuminating discussion of the extent and limitations of disciplinary authority of commanders of different ranks, in the republic and throughout the growth of the empire. Ancient Sources (Nonlegal) Light upon the disciplinary administration of the Roman armies must be sought in the main in the early histories. Its general temper and in some cases detailed procedures are also helpfully illuminated by miscellaneous notes of antiquarians and military strategists of the Empire—being outlined by them incidentally, so to speak, against the much more clearly illuminated background of the constitution of the civil government and its operations, upon which attention is focused. Chief among the historians are Polybius—a contemporary of Scipio Africanus—and Livy and Dionysius of Halicarnassus of the age of Augustus. Aulus Gellius, of the second century A.D., is the most illuminating of the antiquarians, and Vegetius, of the later Western Empire, ranks first among the writers on military strategy. Cicero is easily the most important on the civil constitution, though the historians throw much added light on the actual development of its institutions. To these primary authorities should be added a number of others, some of whom are hardly less important, such as Cassius Dio, Suetonius, Caesar, Tacitus, Frontinus, and Valerius Maximus. The following brief sketches of the more important of these authorities will aid in identifying and evaluating their contributions

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to our subject. Other sources of varying authority, more briefly identified, will be found in the Bibliography. Polybius Polybius was born at Megalopolis, Arcadia, about 208 B.C., the son of a statesman who was very active in the Achaean League. He served with the Roman army in Asia Minor in 189 B.C. and was from the first convinced, with Stoic fixedness, of the ultimate triumph of Roman arms. Although he urged the Achaean League to cultivate friendly relations with Rome, after the defeat of King Perseus at Pydna in 168 B.C. (at the end of the third war between Rome and Macedon) he was brought to Rome, with 1,000 fellow Achaeans, to be tried for resisting Roman authority. He was not imprisoned, however, but at once entered the home of Aemilius Paulus, with whom he was already acquainted, and became the tutor of his two sons. This was the beginning of his long friendship with the younger son, Publius Scipio. During the sixteen years that the Achaeans were held in Rome, Polybius lived in the best Roman society and became thoroughly absorbed into Roman life and steeped in Roman character and tradition. Less than two years after his return to Arcadia, Scipio invited him back to assist him in the diplomatic discussions which preceded the last Punic War. Polybius accompanied Scipio to Africa and stood at his side at the burning of Carthage in 146 B.C. The sack of Corinth occurred the same year, and he returned to Greece and was left by the Roman commissioners to administer the surviving Greek cities, which he did so well that he was regarded a public benefactor by both Greeks and Romans, and statues were raised in his honor in Megalopolis and elsewhere. For twenty years longer he traveled and worked. Active to the last, he was killed by an accidental fall from his horse at the age of eighty-two. Polybius was ideally suited, by training, experience, and temperament, to the writing of his history, which covers the period from the first Punic War (264 B.C.) to the year 146 B.C., which witnessed the destruction of Carthage

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and Corinth. It consisted of forty books, of which only the first five are now preserved complete, plus fragments of others. The spirit of his history may be found epitomized in his own words (I, i ) : "What man is so indifferent or so idle that he would not wish to know how and under what form of government almost all the inhabited world came under the single rule of the Romans in less thanfifty-threeyears [220-168 B.C.] ?" A careful observer, with the passion for scientific truth which Livy lacked, he made his work "perhaps the greatest universal history, or history of the civilized world, attempted m old times" (quoted from W. R. Paton's "Introduction" to his translation of Polybius). He was cautious, painstaking and practical, insisting upon first-hand evidence of all that he related in so far as this was possible. Thus before attempting to describe Hannibal's passage through the Alps he first made the passage himself by the route Hannibal was believed to have followed. For these reasons great reliance may be placed upon the accuracy of detail as well as upon the sympathetic treatment of the major features of his work. While, therefore, for portrayal of Roman character and ideals we rely upon Livy, for accuracy of facts we lean with far more assurance upon the Greek tutor of Rome's illustrious Scipio, whom we should scarcely err in calling a Roman himself by adoption. He is in fact referred to by Cicero (De Re Publica, II, 14) as " . . . our most eminent Polybius, than whom no one was more diligent in historical research." The title of Polybius' great work is simply History. It is cited, in the documentary notes following, by the author's name with book and section numbers (i.e., Polybius, , ).

Livy Titus Livius was born in Patavium (modern Padua) in 59 B.C., during Julius Caesar's first consulship, and died there in A.D. 17, three years after the death of his illustrious friend, the Emperor Augustus. He devoted practically his entire life to his great history which, in 142 books, covered the

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period "from the founding of the city" (Ab Urbe Condita, the title of his work) to the year 9 B.C., the fiftieth year of his own life. Fewer than a fourth of these books have been preserved, though there are abridgments of many of the missing books, which probably account for the loss of the originals. Martial alludes to the advantage of this condensation (XIV, CXC): "Pellibus exiguis artatur Livius ingens, Quern mea non totum bibliotheca capit", which Duff translates, "In vellum small huge Livy now is dressed; My bookshelves could not hold him uncompressed." Livy possessed "perhaps the greatest prose style that has ever been written in any age or language" (Munro). This fact, coupled with his literary eminence, his warm friendship with Augustus, and the detailed comprehensiveness of his work, caused his history to be universally accepted as the authentic source of works of later Roman historians. He shared with Vergil the honor of being the most widely read of Latin writers. Measured by modern standards of scientific rigor, however, Livy was, as a critical historian, seriously deficient. We should evaluate him, in matter of fact, more as a political idealist and literary artist than as a historian in that rigorous sense. Taine says of him that he had the taste for scientific truth, but not the passion for it (Essai sur THe-Live, p. 64). "Toward original documents he manifests an almost incredible indifference," is the comment of B. O. Foster, his translator, who notes that he appears never to have bothered to examine the terrain of so important a battle as Cannae, as shown by inaccuracies in his account of the operations there. The modern historian must therefore use Livy with caution and check his statements of fact against the more careful Polybius where possible. His greatest value—and this is no small one in a purely historical sense—is in his exhibition of the Roman*s ideal history of Rome: an ideal primarily of his own time, but no less certainly and significantly inherited from Rome's own past.

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In the notes following, Livy's History is cited by the author's name only. Books of the History preserved in abridged form only are cited as Periocha. Dionysius Dionysius of Halicarnassus tells us that he came to Rome immediately after Augustus Caesar had put an end to the civil war, and that he lived there twenty-two years learning the language and studying the writings of the Romans. Nothing is known of him beyond this brief reference to himself in the preface of his great history, which is entitled Roman Antiquities. We know in any event that he lived in the Augustan age, and was therefore a contemporary of Livy, Vergil, Horace, and Ovid. He wrote much besides his history, very little of which, however, has survived. The history was originally in twenty books, covering the period from the legendary founding of Rome to the first Punic War—where Polybius' history began. Only eleven of these books survive. Dionysius is high in praise of the past. He extols the ancient virtues of the Romans, and laments the decadence of his own, the Augustan age! He is considered, withal, a reasonably accurate historian, and he is the only authority other than Livy on the period of Roman history before the Punic Wars. The history of Dionysius is cited in the notes as Dionysius. Cicero Marcus Tullius Cicero was born at Arpinum in 106 B.C. He was educated as a lawyer and a philosopher. After the usual military service he began his public career at the age of twenty-five; was quaestor at thirty-one, curule aedile at thirty-six, praetor at forty, and consul at forty-three. From this time to his death more than twenty years later he was in the forefront of public affairs. He distinguished himself as a prosecutor, and particularly as a special pleader, in addition to his public service in an official capacity. He was always a champion of the omnipotence of the Senate, as he demonstrated most notably in the trial of Rabirius and in putting down the Catiline conspiracy. His writing was voluminous, and on many subjects. His essays on law

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[De Legibus) and on the Republic (De Re Publico), written when he was aboutfifty-five,embody the best of his political thought. His distinction as an orator, his charm as an essayist, his brilliant and somewhat turbulent public career, ascending to the heights of popular acclaim through daring and devoted public service, his temporary exile, his triumphant return, and finally his death through hatreds that his vigorous personality had inspired—all are too well known to be dwelt upon here. It is enough to say that in spite of his prejudices and his sometimes unseemly self-interest, which have brought him much criticism—modern as well as ancient—he was unquestionably a dominant political figure of his time, and spoke with the highest authority concerning every phase of Roman government. He was killed by political enemies in 43 B.C., during the regime of the second triumvirate, in the sixty-fourth year of his life. Aulus Gellius Aulus Gellius, like Dionysius, is known only through his work. He wrote during the reign of Antoninus Pius (A.D. 138-161) and part of the principate of Marcus Aurelius (161-180). He was probably born in Rome, and was partially educated in Athens. His Attic Nights (Noctes Atticae) is a miscellany of notes on grammar, philology, antiquities, history, law, philosophy, and other subjects. His ability was not outstanding, but he is considered on the whole accurate and conscientious. His notes are valuable chiefly for their wealth of intimate detail, which affords an unusually close view of some of the everyday features of Roman life. The Attic Nights is cited in the notes by the name of the author only. Vegetius Flavius Vegetius Renatus is likewise known only through his writing. His work on military affairs {De Re Militari) is dedicated to the reigning emperor, who has been identified as Valentinian II, or at least one of the

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emperors near the end of the fourth century in the Western Empire. Vegetius' book is a classic on military strategy, and it contains much valuable information besides on military organization and military customs. He extols military discipline as the foundation of Roman greatness. Vegetius was highly publicized during the early Renaissance, and it is through their inclusion with the De Re Militari in publication that several other important military texts have been brought to light. Frontinus, Modestus and Aelian stand foremost among the authors on military affairs {scriptores ret militarist whose works were customarily included with those of Vegetius; and in some editions there appeared still other inserts. Important among these, for our present purposes, are the Military Laws from Ruffus which are described at length later in this text. Ancient Sources (Legal) Ancient legal texts are confined practically to the Corpus Juris Civilis of Justinian, with much light shed on army administration by the earlier Theodosian Code, and to a code of Military Laws {Leges Militares) which has been preserved in a number of differing versions as an appendix to the early Greek-Byzantine compilation of laws called the Ecloga. This military code is known under the customary title of Military Laws from Ruffus. Corpus Juris Civilis The Digest of the Corpus Juris was compiled from the writings of the greatest of the Roman jurists, most of whom flourished during the second and third centuries of the Empire, collected and arranged or digested by command of the Emperor Justinian under the immediate supervision of his celebrated law officer, Tribonian. The Codex, or statutory Code of the Corpus Juris, is a compilation of imperial laws enacted and published by the various emperors from the time of Hadrian (A.D. I 17-138) until the publication of the Code itself by Justinian in A.D. 534. Military law appears in the Corpus Juris only incidentally—as "military affairs" with some legal significance,

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in Book XLIX, Title 16, of the Digest, and in Book XII, Title 36 of the Code, and in a few other miscellaneous provisions. The entire Book VII of the earlier Theodosian Code is likewise devoted to "military affairs" of an administrative nature, with occasional punitive provisions. Military Laws from Ruffus Although it was probably never an official code in the full meaning of that term, the compilation preserved under the title the Military Laws from Ruffus is truly a code in form. Its reputed author, Ruffus, is unknown, though practically all the individual laws are known to be of Western Roman origin. The best version of the Military Laws from Ruffus is found in a compilation of Byzantine law {Juris Graeco-Roman'i) by Johannes Leunclavius (Johann Lowenklau), published in 1596, and is said by Leunclavius to have been taken from a manuscript of Francois Pithou, a famous French jurist and scholar. Modern Bibliography Foremost among modern authorities on Roman constitutional and criminal law, essential to an understanding of the disciplinary administration of the armies, is Theodor Mommsen (1817-1903). His Romisches Staatsrecht remains, more than half a century after its first publication, the standard handbook on Roman constitutional law, and his Romisches Strafrecht stands almost alone in the field of Roman criminal law. There are more modern successors to his Romisches Geschichte, which is, however, still authoritative. It is, moreover, available in English translation (by W. P. Dickson.) Karl Joachim Marquardt (1812-1882) is the best authority on the detailed organization of the Roman state and its institutions. His Romische Staatsverwaltung (his most important work) and Das Privatleben der Romer are combined with Mommsen's Staatsrecht to form the Handbuch der romischen Alterthilmer, published in Leipzig, (1881-1888), and immediately translated into French (1888-1907) with the addition of Mommsen's

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Strafrecht and Paul Kriiger's Geschkhte der Quellen und Litteratur des Romischen Rechts, under the title Manuel des Antiquites Romaines. Although indispensable for any study of Roman government or of any of its public or private institutions, this classic has never been translated into English. Marquardt's Militarwesen and Sacralwesen (from the Staatsverwaltung) are cited in the following pages by the author's name only, with the volume and page from the French Manuel. Das Militarwesen appears as volume XI of the Manuel, Das Sacralwesen as volumes XII and XIII. James L. Strachan-Davidson's Problems of the Roman Criminal Law is an excellent commentary on Mommsen. It illuminates even when it does not correct, as it sometimes undertakes to do. Abel Greenidge's Legal Procedure of Cicero's Time is the best work on the most important subject of procedure, both civil and criminal. Pandias M. Schizas' Offenses against the State in Roman Law is a comparatively recent work (1926) of a high order of scholarship on an important phase of criminal law and procedure—an improvement over Greenidge in the matter of which it treats. Herbert Jolowicz' Historical Introduction to the Study of Roman Law is perhaps the best work in English on Roman constitutional law. It is relatively brief, but of high authority, and well presented. Hans J. Wolff's Roman Law (1951) presents an excellent historical introduction, in good perspective. Other authorities, both ancient and modern, are cited at appropriate points throughout the text following and are listed with brief catalogue descriptions in the Bibliography. Citations in abbreviated form may be clarified by reference to that list.

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CONTENTS

Preface Foreword Acknowledgments Notes on the Sources I II

INTRODUCTION

3

THE ROMAN CONSTITUTION

6

III

DISCIPLINE AND CRIMINAL LAW

IV

MILITARY ORGANIZATION

46

DISCIPLINARY ORGANIZATION OF THE ARMY .

63

RELIGION AND DISCIPLINE

83

OFFENSES AND PUNISHMENTS

99

V VI VII VIII IX

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FROM THE PUNIC WARS TO CONSTANTINE MILITARY CODES AND TREATISES

Appendices A. Military Laws from Ruffus B. De Re Militari from Corpus Juris Chilis C. Strategica, by Maurice D. Table of Comparisons Bibliography Index

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ROMAN MILITARY LAW

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I. INTRODUCTION

if not inevitable, that a comparative and historical account of military law should seek its foundations in ancient Rome. This beginning in antiquity does not have as its purpose to trace modern institutions to their origins, which is a matter of antiquarian rather than of legal interest, but rather to consider upon its merits the system of disciplinary control of the armies of perhaps the greatest military power that has ever existed. Rome was a great world power over a longer period than England has been. She acquired her empire, moreover, through military conquest, and maintained it for the most part through the exercise of military dominion. As distinguished as her military achievements was Rome's genius for government. Upon the one notable failure of her armies against the great military genius of all times, it was the impregnable solidarity of the Roman state as a political institution that preserved the Republic against disintegration during the fifteen years that Hannibal ravaged the Italian peninsula. Upon the repeated successes of her armies it was the same genius for government that extended the "Roman peace" (Pax Romana) from the British Isles to the Red Sea, and through a succession of centuries that appeared unending.

IT IS NATURAL,

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Roman Military Law

The living substance of Roman government was the vast body of Roman law which, after a growth of a thousand years, was digested and codified by Tribonian in the words of the great masters of the past centuries, under the direction of the Emperor Justinian. When the military power of Rome finally passed away, the Corpus Juris Chilis lived on, hardly altered, in the law of mediaeval Europe. Through the media of its early adoption into the barbarian codes, and its later revival and emulation in mediaeval centers of learning typified by Bologna and the "glossators," it is recognized as the direct progenitor of the law of a major portion of the modern world. Quite apart from antiquarian considerations, therefore, the military law of the law-giver of the modern world and of the greatest military power of antiquity should obviously be of the highest interest in a comparative study of modern military justice. Unfortunately for comparative purposes, however, we find no integrated system of Roman military law to study. When, in a later chapter, we consider the administration of Roman criminal law we shall be able to understand why Justinian's great Corpus Juris is almost exclusively civil. Roman criminal law has as a result had almost negligible attention from the students of Roman law. A notable exception is Theodor Mommsen, whose Roman Penal Law (1899) stands virtually alone in that field. Not only are the materials for the study of criminal law, and particularly of military law, scant and uncollected; even greater difficulties are encountered in the circumstance that such source authorities as exist are found chiefly in the histories of Polybius, Livy, and Dionysius, rather than in legal contexts. The difficulties of synthesis are of course greatly increased by the fact that the period of history involved extends over more than a thousand years, and that during that time Rome grew from a tiny city-kingdom on the banks of the Tiber through the stages of republic and principate to an empire that embraced the civilized world. It should not be surprising if changes in the character and organization of the armies during the life history of such a people were correspondingly marked. It is perhaps

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Introduction

5

the most remarkable feature of the military-legal mosaic constructed from such diverse historical fragments—from Romulus to Justinian—that enough unifying characteristics may be found to justify its designation as Roman military law. That this can in fact be done is perhaps due in the main to the unique structure of the Roman government, and to the pertinacious rigidity of the Roman character.

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II. THE ROMAN CONSTITUTION

The Ideal Constitution of Cicero within the scope of this discussion to indicate more than the bare outlines of the Roman government. Fortunately a sketch of the essential features of the administration of the Roman commonwealth has been made for us within the compass of a few paragraphs by no less an authority than Cicero, and for the express purpose that concerns us here, namely a discussion of the laws. These paragraphs from his essay on laws (De Legibus) purport to describe Cicero's ideal state; but he makes it clear that they also describe, in its essential aspects, the actual organization of the government of his time.1 Rome, like Great Britain, had no written constitution. Cicero's epitome in the De Legibus is in fact the only written constitutional statement attempted by a Roman, even for purposes of discussion.2 As an idealized description it is natural that De Legibus should be colored with the political philosophy of its author; and this is clearly apparent in the IT IS NOT POSSIBLE

1

De Legibus III, 5, "but this is very nearly descriptive of our state, though you have added a little that is new." 2 See C. W. Keyes, "Original Elements in the Gcero's Ideal Constitution," 42 American Journal of Philology (1921), 309-323.

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T h e Roman Constitution

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large concessions to the Senate, as a matter of law, of the high authority which it had often exercised in practice,3 and in the establishment of the principle of "martial law"4 under which the consul could legally act on behalf of the state in time of emergency as Cicero had himself actually done in the case of the Catiline conspirators—at the cost of his later banishment for violation of the law. Cicero's constitution is nevertheless of the highest importance as an epitome of the essential laws of the Roman Republic, viewed in retrospect from its later days in the light of a long and most vigorous public life as magistrate and senator, extending through the usual cursus honorum to the chief magistracy of the state. That it is somewhat idealized in the light of this retrospect and personal experience in crucial affairs of state not only does not detract from its value as a model or generalized Roman constitution, but, in fact, greatly enhances its importance as such. No one disputes, in matter of fact, that the ideal elements of the constitution that are usually challenged as "illegal'' were nevertheless in the main descriptive of actual practice.5 The model constitution of the De Legibus in Cicero's words, with a parallel English translation, appears at the end of this chapter. It is here referred to as a generalized statement of the essential features of the Roman Republic, which the sketch that is to follow intends to mark out in only its large objective features. Legendary History The legendary date of the founding of Rome was 753 B.C. Mommsen6 and others have shown the importance of the legendary history of the three 3 In the words of the Model Constitution (see text at the end of this chapter, "its decrees shall be law." 4 ". . . ollis salus populi suprema lex esto (for them [the consuls] the safety of the people shall be the supreme law)." The parallelism with the Anglo-American conception of "martial law" is striking. See Chapter V. 5 See Keyes, "Original Elements." 6 Theodore Mommsen, Romisches Strafecht, pp. 115 ff.

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ancient tribes: the Ramnes, Luceres, and Tities (or Titienses)—and their anion in the tri-unitary city of historical times. Mommsen calls attention to such names as tribus, tribunus, and tributus, borne by institutions of the tri-unitary city, indicative simply of parallelism of such institutions with corresponding institutions which formerly existed in the separate tribes. He notes that the thousand armed men of the ancient tribes, combined to make the legion of three thousand (plus twelve hundred auxiliaries) of the tri-unitary city, commanded originally by three tribunes, who exercised the command either jointly or by turn. The thirty curiae of Romulus, and the three hundred cavalry of the legion as originally constituted— ten turrna of thirty men each, and each commanded by three decuriones—are similarly accounted for. The Servian Constitution Apart from the interesting light shed upon origins, however, little that is significant in Roman military history will be lost by passing at once to what proved to be the basic organization of the Roman state by Servius Tullius, the first great innovator, some two hundred years after the legendary founding of the city. This organization was based upon a census—destined to become a highly important institution of the Roman state—and was fundamentally military in character. The centuria, or century, which was a company of a hundred men (the most ancient of Roman military units) became also the basic political unit of the state. Under the Servian constitution the Roman People (regarded here as a political institution, as we shall later see) was divided into categories and classes, each with a number of centuries commensurate with its importance to the state, as determined by the social rank, wealth, and age of its members. From the citizens of highest rank were formed 18 centuries of cavalry, or knights, which stood at the head of the political organization. Next followed the first class of infantry, formed from citizens whose wealth exceeded 100,000 asses,7 and numbering a total 7

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The as was originally a copper rod one foot long, divided into twelve inches

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T h e Roman Constitution

9

of 80 centuries. This was by far the most powerful single class in the Centuriate Assembly, and, together with the knights, formed an absolute majority of its 193 centuries for all political purposes. The second, third, and fourth classes of infantry, based likewise upon property ownership, consisted of 20 centuries each; and the fifth and lowest class, with a property qualification of 11,000 asses, added 30 centuries more. Artisans and trumpeters, with 2 centuries each, were attached to the infantry; and a final very numerous century of proletarii, the proletariat or "getters of children,"8 who served the state by increasing the population but did not contribute to the armed forces, brought the total to 193.9 Sources of Power Centuries of different classes were therefore by no means numerically equal. Classes, on the other hand, formed a hierarchy based upon social standing and property ownership, so grouped that a relatively small minority of the more wealthy citizens comprised a majority of the centuries and therefore had a controlling voice in the conduct of public affairs.10 There was (unciae). Later it took the form of a coin, stamped with the figure of an ox (pecus), whence pecunia, money. The weight of the as, originally a pound, was reduced to an ounce at the time of the second Punic War. Its value at the time of Servius Tullius is not accurately known. Lee Livy II, 52; id. I, 43 (Foster's note, in his translation); Dionysius IX, 27. 8 Aulus Gellius XVI, 6; Dionysius VIII, 82; Cicero De Re Publica II, 22. 9 Livy I, 43; Dionysius IV, 16-19; id. VII, 59; Cicero De Re Publica II, 22. Livy gives the property ratings of the different classes as follows: 1st, 100,000 asses; 2nd, 75,000; 3rd, 50,000; 4th, 25,000; 5th, 11,000. Dionysius includes the knights in the first class, giving it a total of 98 centuries, and lists the proletarii as a sixth class. Aulus Gellius (XVI, 6) rates the proletarii at 1,500 asses and places them above the capite censi (rated by the head) who had no property but were rated at 375 asses. He says that the proletarii, though not enrolled as soldiers, could be used in emergencies, equipped at the expense of the state; that the capite censi were first enrolled by Marius. 10 Dionysius VIII, 82; Livy I, 43; Cicero (De Re Publica II, 22) says that each century below the first class averaged as many members as the entire first class, which

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10

Roman Military Law

a further decided weighting in favor of age, since every class of infantry was divided equally as to number of centuries between "seniors," who were above the age of forty-six years, and therefore exempted from military service in the field, and "juniors" who comprised the much more numerous active soldiers between the ages of seventeen and forty-six.11 Voting was by classes, in order of rank, beginning with the knig;hts. Each century voted, as a unit, either "yes" or "no" to the question proposed by the presiding magistrate. When a majority (i.e. ninety-seven votes) was registered either for or against a measure it was declared carried or defeated, as the case might be; and in such a case the remaining classes were not called upon to vote.12 If, for example—as was often the case—the knights and the first class of infantry agreed upon any measure proposed, the lower classes had no opportunity to cast their votes and thus had virtually no voice in the government. For these reasons it is not surprising that there runs through the history of the Roman Republic a continuous recital of class struggles, and that reforms in favor of the lower classes were more often a result of violence than of balloting—with which matters, however, we can have no appropriate concern in the present sketch of the Roman constitution. Military Justification The Servian constitution was, from a military viewpoint, entirely rational. The knights, through their noble birth and superior wealth, qualified as the natural leaders of the army, and were able to equip themselves with horses, armor, and an adequate retinue for the exercise of that function. Similarly the infantrymen of the first order of wealth were able to arm themselves in a manner commensurate with their wealth, and become the most formidably armed and equipped and therefore the most powerful group of foot troops; was divided into eighty centuries and, joined with the eighteen centuries of knights, constituted an absolute majority of the assembly for voting purposes. 11 Aulus Gellius X, 28. See XI Marquardt, 9 ff. 12 Livy I, 43.

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The Roman Constitution

11

and so on down through the different classes to the accensi velati, who were armed with spears and stones,13 and the proletarii, who were unable to arm themselves at all. At the onset of combat the lightly armed rorarii, as they were commonly called, hurled or "rained"14 their spears and stones upon the advancing enemy forces and then retired through the ranks of their own light infantry, who next met the enemy hand to hand, holding out as long as possible, but in turn retiring through the ranks of the supporting heavy infantry if and when this became necessary.15 It was upon this line of heavy infantry that the safety of the state ultimately depended. It will appear, therefore, that except for the weighting for age, the voting strength of the centuries on the Campus Martius was roughly commensurate with their fighting strength in the line of battle.16 Meetings of the assembly of the centuries (comitia centuriata) in fact very largely symbolized and characterized the Roman politico-military organization. Since no soldier, armed or in armor, was allowed within the walls of the city, meetings of the Centuriate Assembly were held on the Campus Martius.17 Inside the walls (pomerzum)18 or domi (at home) was the domain of the civil authorities, contrasted with all beyond the walls—or more accurately, beyond the first milestone outside the city, called militiae (which may be translated afield), where military authority was the natural order. The Campus Martius was an open space in the twilight zone outside the city walls, but within the first 13

Livy VIII, 8; Polybius III, 72; XI Marquardt, 15, and authorities cited by Marquardt. 14 Rorare: to sprinkle. "Rorarii milites qui leui armatura primi proelium committebant: qm ut ante imbrem, sic Mi ante gravem armaturam qm prodibant Rorarii dicti," (Robert Valturio, De Re Militari, Lib VII {Vocabula Militaria]. 15 Livy VIII, 9-10; Dionysius VI, 10; Polybius III, 72; X I Marquardt, 13. 16 Dionysius (IV, 19) says that the centuries shared equally the expense, each furnishing and equipping an equal number of soldiers. 17 Livy I, 43; Dionysius VII, 59 18 The pomerium was literally the clear space on either side of the walls of the city (Livy I, 44. Aulus Gellius (XIII, 14) notes that within the pomerium is within the auspices since the auspices could be taken only within the pomerium.

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milestone. Here the centuries met, under arms and in military array but under the leadership of commanders who were also the chief civil magistrates, to determine the highest matters of state.19 Magistrates The consuls. Within a generation after the long reign of Servius Tullius the kings were expelled from Rome by the powerful aristocracy, and for the next five centuries, during which the tribal city grew steadily into the world empire of the Caesars, the sovereign authority of the state was held in a unique form of joint tenancy by two consuls. This coUegial form of magistracy was not confined to the consuls. It served rather in practically all departments of government, through the conception of par potestas, or equal power, as a check upon authority such as modern governments seek through the "separation of powers." In the coUegial scheme the individual office was held jointly by two or more magistrates of equal power. Essential to the operation of the system of checks was the veto power that every magistrate had over acts of his colleagues and over the acts of lesser magistrates. "Equal or higher authority" (par maiorve potestas') could always be interposed against any official act excepting only the acts of a dictator (magister populi) in whom the authority of both consuls was combined for limited periods of time during great emergency.20 The Praetors. The chief judicial officer of the Roman state was called the praetor. This title, signifying hardly more than "leader" (prae plus itor, one 19

When the centuries were on the Campus Martius a guard was maintained on the Capitol and a flag flown there as a mark of assurance of this precaution. Cassius Dio (XXXVIII) relates an incident (the trial of C. Rabirius which is also mentioned in Chapter VI) in which a conviction in a poltical trial for high treason was frustrated by the strategy of an augur, who had the flag hauled down at the critical moment before the voting, whereupon the centuries were obliged to return forthwith to the city, and the vote could not be taken. 20 Theodor Mommsen, Romisches Staatsrecht, and Herbert F. Jolowicz, Historical Introduction to the Study of Roman Law—in addition to Cicero's De Legibus—are referred to generally for the substance of this and the following paragraphs.

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who goes before), was formerly applied to the office of consul, at least in his capacity as military commander, as shown by the designation of the commander's tent throughout Roman history as the praetorium.21 Such continued use of the word is, however, purely vestigial and in the nature of a philological accident. The praetor of Roman legal literature was the chief judge and law officer.22 He decided cases, or referred them to citizens chosen as indices, or minor judges, for the trial of each case, and declared the law for future application in edicts which were sovereign m authority. By reason of his sovereign authority he was said to have the imperium, or "supreme authority," as did the consuls, and not the mere potestas, or restricted authority of the lower magistrates. The praetorship was not in the beginning a collegial office,23 although Cicero speaks of it as essentially collegial;24 and there were in fact two praetors from an early date.25 The additional praetor had, however, a separate jurisdiction. Roman law applied only to Roman citizens; and since in time many non-Roman inhabitants came to live under Roman dominion, a new and different law called ius gentium, or law of the peoples, was developed for the government of all such foreigners (peregrini). The praetor for the city was thereafter called the urban praetor {praetor urbanus) and the praetor for foreigners {praetor peregrinus) was so called and distinguished as such. The annual 21

Justus Lipsius, V, De Militia Romana, 215. The praetor, like the other higher magistrates, was also a military commander, subordinate to the consuls. 23 Aulus Gellius (XIII, 15) says that the consuls and praetors were colleagues, since they were chosen under the same auspices, even though the praetors were subordinate to the consuls. This is, however, a technical basis for colleagueship without practical significance except as an indication of the sovereign authority of the praetor within the scope of his judicial office. 24 ". . . huh pot estate pari, quote umque senatus creverit populusve iusserit, tot sunto" (from the Model Constitution) 25 The number of praetors was later increased to four, then to six, and under Sulla's reforms to eight. Theodor Mommsen, 3 History of Rome, 439; Jolowicz Historical Introduction, p. 47. 22

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edict of the urban praetor grew as the years passed into virtually a code of Roman law.26 The "law of the peoples" {ius gentium) came similarly to embody principles for the uniform settlement of controversies between all non-Romans. The Censors. Ranking next after the consuls and praetors were the two censors, whose office completes the triumvirate of "higher magistracies." The higher magistrates could be invested with office only through an act of the supreme assembly {per maximum comitiatum). Consuls, praetors, and censors were therefore elected by the assembly of the centuries, while minor officials were chosen by the curiae and tribes {comitia curiata and comitia tributa).27 The censors were not chosen under the same auspices as the consuls and praetors, and therefore did not share with them the supreme power, or imperium; but their office was nevertheless one of high importance and great power. It was their important function to enroll and classify the citizens according to their fortunes, ages, and social rank; and it was upon this classification that all the rights and duties of citizenship depended.28 In view of the high importance of social and political rank in the Roman state, it is therefore clear that the censors exercised an authority of drastic implications. They concerned themselves not merely with the amount of property a citizen possessed, but also with his care of it, reducing in rank at their pleasure those who were careless or who exhibited a want of civic pride.29 They were, moreover, not only keepers of the laws of property, but also the guardians of public morals and decency. A knight who became fat or slovenly they deprived of his horse.30 Upon occasions they used their authority for the purely disciplinary purpose of commanding respect for their 26

Papinian says concerning the praetorian law (Digest I, i, 7, i ) : "Ius praetorium est quod praetores introduxerunt, adiuvandi, vel supplendi, vel corrigendi iuris chilis gratia propter utilitatem publicum (Praetorian law is that which the praetors introduced, to aid, supplement, or amend the civil law, for the public welfare)." 27 Aulus Gellius XIII, 15. 28 Cicero De Legibus III, 3. 29 Aulus Gellius IV, 12. 30 Aulus Gellius VI, 22.

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persons and for their office. Thus Gellius tells of a punster who was reduced because of his ill taste and want of respect in answering a routine inquiry of the censors by a jest; and of another who barely escaped the same fate, after explanations and apologies, because he yawned in their presence.31 It will not be possible, nor is it desirable for present purposes to go into further details of the duties of the Roman magistrates, the description of which Cicero declares to be the essence of the description of any constitution.32 The mere mention of the more distinctive of the minor magistracies, however, and a brief characterization of the principal governing assemblies, may serve to keep more clearly in mind the unique governmental background of the military institutions which we propose to consider, and which cannot be understood in the atmosphere of modern constitutional governments, or as pure abstractions. Tribunes of the Common People. As a protection to the plebeians against the heavily weighted justice of patrician magistrates, there were created ten tribunes of the common people.33 In order that these officers might be always available to the common people they were required to render themselves constantly accessible, and their persons were held inviolable. A tribune 31

Aulus Gellius IV, 20. This intimate glimpse of the censors in the discharge of their duties merits an "aside" at this point, both on its own account, and to illustrate the value of Gellius' notes. The pun to which reference is made is not translatable into English. The question asked by the censor was: "Have you a wife?" followed, as were all questions, by a customary legal qualification corresponding to our phrase, "according to the best of your knowledge and belief," or words to that effect—-this stock phrase being, in Latin, ex animi tut sententia (literally "after the sentiments of the soul"). The punster answered "Yes, I have a wife, but by no means ex animi mei sententia (after the sentiments of my soul) !" The censor, as guardian of the public morals, did not appreciate his drollery and reduced him to the foot of the classes (in aerarios rettulit), noting in his book, "causa . . . ioci scurrilis (because of a scurrilous joke)" The man who yawned was excused only after he had sworn that he was afflicted with a disease that compelled him to yawn, and that it had overcome him despite his utmost resistance. 32 De Legibus III, 5. 33 Not to be confused with the military tribunes, to be discussed later. The two offices were in no way related.

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had the power to intercede or interpose his authority on behalf of any plebeian who considered himself aggrieved, to restrain other magistrates from acting beyond their legal authority, and in a proper case to demand trial before the People for the plebeian or for the magistrate. In the trial of a magistrate the tribune acted as prosecutor.34 Aediles and Quaestors. Other executive functions of the state were divided among aediles, quaestors, and other lesser magistrates who formed a hierarchy of advancement in public life to the highest offices of the state.35 No account is taken here of such quasi-officials as augures, or of the porttifices, flamenes, and vestals, who exercised certain governmental as well as religious functions. The governmental and disciplinary significance of these offices will, however, be discussed briefly in a subsequent chapter.36 Assemblies of the People The Roman People (Populus Romanus) included citizens only—patrician and plebeian—and excluded slaves, freedmen (who nevertheless had certain rights), and foreigners, who constituted a large part of the population.37 Even the plebeians, as has been observed, had a relatively small voice in the government throughout most of the republican era, due to the weighting of the centuries in favor of wealth and social rank. The People expressed itself through its assemblies or comitia, the most important of which—the Centuriate Assembly {comitia centuriata)—has already been discussed. The assemblies of the curiae (curiata), very ancient in origin, and of the tribes (tributa) were more nearly representative of the common people; but their 34 Abel H. J. Greenidge, "The Porcian Coins and Porcian Laws," XI Classical Review (1897), 437> and "The Provocatio Militiae and Provincial Jurisdiction," X Classical Review (1896), Jolowicz, Historical Introduction, p. 319. Pundias M. Schizas (Offenses against the State in Roman Law, p. 118) says that the tribunes exercised judicial functions in cases of perduellio, replacing the customary duumvirs. 35 " . . . ollisque ad honoris amplioris gradum is primus ascensus esto"—Cicero De Legibus III, 3, the Model Constitution. 36 See Chapter VI. 37 David Nasmith, Outline of Roman History from Romulus to Justinian, p. 7

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jurisdiction extended to minor matters only. The Servian constitution, which created the Centuriate Assembly, made it also the supreme assembly (maximum comitiatum), which Cicero declared to have the sole authority to pass in the name of the People upon the highest matters of state.38 The Senate Coordinate with the "Roman People" in the conduct of the affairs of government was the Senate—Senatus Populusque Romanus (or SPQR in its conventional abbreviated form), the customary reference to the highest authority of the state. The Senate was essentially the great council of state, its advice to the chief magistrates extending particularly to constitutional questions, to religious proprieties, and to foreign relations. It was composed of ex-magistrates of high rank, carefully selected by the censors for life terms,39 and was the exemplar of Roman virtues. In it was combined the Roman respect for age, for noble birth, for paternal authority. The censors were the guardians of its high morality and dignity and could reduce from his senatorial rank any member whose conduct failed to measure up to the standards set.40 Emergency Power. A decree of the Senate, though in the form of a resolution (consultum) as "advice" to the presiding magistrate, was in effect a law.41 The magistrate could not, as a practical matter, ignore the advice. The Senate held in particular what may be called the reserved authority of the state. In times of emergency, or if for any reason the consulship became vacant, it assumed the supreme authority. In the absence of a consul 38

De Legibus III, 4. The number of senators varied at different periods. In Cicero's time there were three hundred. 40 Valerius Maximus, Q. Valerius Maximus: His Collection of Memorable Acts and Sayings . . . II, 7, 5; id. II, 9. 41 That Gcero attributed to the Senate the independent power of law-making, coordinate with the popular assembly (in addition to the sole power of appointing a dictator) is shown by his customary use of the disjunctive -ve in referring to that power: "quom senatus creverit populus#* iusserit" {De Legisbus III, 3 ) . 39

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it created an interrex, or provisional "king" from among its own membership to function for the time being as the highest officer of the State, and to conduct the election of consuls. If public danger threatened it could, for a period of not more than six months, appoint a dictator, or master of the people (magister populi) as he was called, with the supreme authority or imperium even in the city.42 In the later years of the republic this emergency power of the Senate came to be expressed in a "final decree" (Senatus consultum ultimum), which was virtually the equivalent of a declaration of ''martial law," in the Anglo-American meaning of that expression, and the institution of emergency government. The legality of such a "final decree" was based upon the constitutional principle, as stated by Cicero, that43 "the public safety is the supreme law." It took the form of a decree that the consuls, or other designated magistrate, should "see to it that the state incur no harm,"44 and it was construed to authorize any measure of force that might become necessary to that end. Procedure. Neither the Senate nor the People had the power to initiate governmental action. This rested exclusively with the magistrates. Consuls, praetors, and other magistrates with the supreme authority, or imperium^ had the authority to assemble and consult with the Senate, and to propose laws to the People,46 as did also the tribunes of the common people in matters relating to the duties of their office as protectors of the plebeians. Since any magistrate with "equal or greater authority" {par maiorve po42

Magistrates of the emergency regime are discussed in Chapter V. De Legibus III, "salus populi suprema lex esto"—3. 44 ". . . ut consul videret, ne quid res publico, detrimenti caperet"—Cicero In Catilinam I, 2, 4. The consultum ultimum was resorted to by the Senate to avoid the Lex Sempronia, which had been enacted by the People to prevent the Senate from suspending the provocatio. Schizas {offenses, p. 74) holds that the consultum ultimum was unconstitutional. 45 i.e. the emergency magistrates: dictator, master of the horse, interrex. 4 6 ft cum populo patribusque agere (deal with the People and with the Senate)"— De Legibus III, 4. See Aulus Gellius XIII, 16. 43

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testas) could veto any proposal made, the tacit concurrence at least of all such magistrates was really necessary for its consideration. A proposal to the People was called a rogatio, or "question," which could be either accepted as proposed, or rejected. If accepted, it became a lex, or statute law.47 Except in the few matters reserved exclusively to the People—such as an appeal in a criminal case (provocatzo)—laws were ordinarily proposed to the People only upon the advice of the Senate, though this was not a legal requisite. Laws were therefore, in the words of Cicero, what the Senate decreed (or advised) or48 the People ordered.49 Polybius on the Senate. To Cicero's brief account of what may be called the mechanics of the Roman constitution, it is pertinent to add the more critical observations of Polybius upon the large features of its practical operation.50 The power of the Senate, he says, lay in its control of finances, since the quaestors, or financial officers, could pay out public funds only upon a decree of the Senate. In the absence of the consuls, therefore, the Senate constituted itself virtually a ruling aristocracy; and it in fact exercised a large measure of control over the consuls in campaigns through its financial control of the armies. Its authority in all fields was greatly enhanced, moreover, through its customary function of initiating (with the aid of the convening magistrate) all laws through its decrees or consulta, as they were called. 47

Aulus Gellius X, 20. and/or, in customary legal English; that is, either or both. 49 De Leg/bus III, 3. See Note 41 above. Livy's phrase is "quotcumque senatus creverit populusque iusserit (whatsoever the Senate decrees and the People order)," which appears to be the more strictly constitutional definition. The authority of the Senate varied greatly at different periods. The generalized picture here presented appears to be Cicero's ideal. Such a static representation of the Senate and the People does not take into account, of course, the constant class struggle, the growth of power and privileges of the plebeians, and their assemblies, the reforms of Marius in the spirit of liberalism of the Gracchi, the violent reaction crystallized in the Sullan constitution, nor, of course, the later changes under Principate and Empire. 50 Polybius VI, n , et seq. 48

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The People The particular province of the People was to confer honors and inflict punishments. Its power of punishment was particularly effective, since it depended essentially upon no law and could be invoked at pleasure against even the highest officers of state upon the expiration of their brief terms of office. Decrees of the Senate required, in theory at least, confirmation by the People. Without such confirmation they were not "laws" (leges), but they had, nevertheless, much of the force of law. In times of public stress in particular, all affairs of state were conducted through such decrees, and Cicero views this procedure as entirely appropriate.51 Polybius observes, however, that it is not in conformance with law under the constitution, as generally accepted and understood, and must therefore be viewed as a measure of usurpation by the Senate, tolerated as a matter of expediency, but always subject to challenge by the People in case of abuse. The chief feature of the Roman constitution stressed by Polybius is the absolute necessity for cooperation between the magistrates, the Senate, and the People, for its successful operation. Not only must there be cooperation between magistrates who are colleagues, but the tribunes also, acting for the plebeians (who, it must be remembered, are not coincidentally the People), have the veto power of the highest magistrates, and can prevent the Senate even from meeting. In order for the state to perform a sovereign act of government, therefore, the following conditions and circumstances must consecutively and harmoniously conspire to the desired end, failure of any one of them being fatal to the consummation of the act: (a) One of the "higher magistrates" must assemble the Senate; (b) The assembly of the Senate must be at least tacitly approved by all the colleagues of the presiding magistrate with "equal or greater authority" (par maiorve potestas), and by the tribunes of the plebeians; 51

De Legibus III, 3. It is to be borne in mind that Cicero's ideal constitution here presented did not purport to recite the actual constitution of Rome in all details. It did represent what he considered the most desirable practice.

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(c) A magistrate (not necessarily the presiding magistrate) must propose the act; (d) The proposal must have at least the tacit approval of all magistrates with "equal or greater authority" with respect to the proposing magistrate; (e) The Senate must decree the act. These five steps result in a "decree of the Senate" (Senatus consultum). Confirmation by the People, necessary to enact the decree into a "law" {lex), requires five additional corresponding steps in convening the Centuriate Assembly (comitia centurtata) and procuring its action. Bearing in mind this elaborate system of balance of powers, collegial offices, and special magistrate with veto powers, it is not surprising that in times of stress the Gordian knot was cut by the appointment of a dictator;52 nor that in normal times practically all matters of administrative routine were committed to the broad discretionary powers of the magistrates. 52

The first dictator, Titus Larcius, was appointed only eight years after the expulsion of the Tarquins (Livy II, 18). Dictatorships remained common throughout the Republic, although there were no dictatorships in the strict constitutional sense after the second Punic War (218-201 B.C.).

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THE MODEL ROMAN CONSTITUTION OF MARCUS TULLIUS CICERO NOTE : The English version is based upon the excellent translation of C. W. Keyes, which has been compared with earlier translations. Departures have been made from the former translations where the Latin text has suggested a different English wording and, in some cases, where it appears that the translators may have missed some part of the meaning. (See the "Note on Translations," later in this volume). The Latin text is adopted from Keyes.

DE LEGIBUS Liber III III. M. Iusta imperia sunto, isque civis modeste ac sine recusatione parento; magistratus nee obedientem et innoxium civem multa vinculis verberibusve coherceto, ni par maiorve potestas populusve prohibessit, ad quos provocatio esto. Quom magistratus iudicassit inrogassitve, per populum multae poenae certatio esto. Militiae ab eo, qui imperabit, provocatio nee esto, quodque is, qui bellum geret, imperassit, ius ratumque esto. Minoris magistratus partiti iuris ploeres im ploera sunto. Militiae, quibus iussi erunt, imperanto eorumque tribuni sunto, domi pecuniam publicam custodiunto, vincula sontium servanto, capitalia vindicanto, aes, argentum aurumve publice signanto, litis contractas iudicanto, quodcumque senatus creverit, agunto. Suntoque aediles curatores urbis, annonae ludorumque sollemnium, ollisque ad honoris amplioris gradum is primus ascensus esto. Censoris populi aevitates, suboles, familias pecuniasque censento, urbista

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THE LAWS Book 111 III. Marcus: Exercise of the sovereign authority shall be lawful, and it shall be respected by the people, dutifully and without protest. The magistrate shall discipline the disobedient even if innocent1 citizen by fine, imprisonment, or flogging, unless this be forbidden by equal or higher authority, or by the People, to whom there shall be the right of appeal. For one who has been judged and sentenced by a magistrate shall have the right of a trial before the People as to the fine or other penalty imposed. But there shall be no appeal from the commander of an army in the field. The orders of the commanding general shall be accepted as unquestioned law. The other functions of state shall be distributed among minor magistrates.2 In the army afield3 they shall command those over whom they have been appointed and be their military tribunes. In the city3 they shall be custodians of the public treasury; see to the imprisonment of criminals and to the executions of capital punishment; supervise the public coinage of copper, silver, and gold; decide suits at law; and do whatever else the Senate may decree. There shall likewise be aediles, who shall be curators of the city, of the market, and of the public games; and this office shall be the first step in the advancement to higher honors. The censors shall make a census of the people, recording their ages, their children, and their households and property. They shall have supervision of 1

The rendering of innoxium follows Mommsen: see Chapter III, text and notes. Aulus Gellius (XIII, 15) says that all magistrates below the censors are "minor magistrates." Cicero appears to distinguish here, however, between the magistrates with the sovereign authority (imperium), implied in his use of the word imperia in the first paragraph, and those without it. The censors did not have the imperium. 3 Note the sharp distinction drawn between militiae (with the army afield) and domi (at home, or in the city). 2

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templa, vias, aquas, aerarium, vectigalia tuento populique partis in tribus discribunto, exin pecunias, aevitatis, ordinis partiunto, equitum peditumque prolem describunto, caelibes esse prohibento, mores populi regunto, probrum in senatu ne relinquonto; bini sunto, magistratum quinquennium habento; reliqui magistratus annui sunto; eaque potestas semper esto. Iuris disceptator, qui privata iudicet iudicarive iubeat, praetor esto; is iuris civilis custos esto; huic potestate pari, quotcumque senatus creverit populusve iusserit, tot sunto. Regio imperio duo sunto, iiqui praeeundo, iudicando, consulendo praetores, iudices, consules appellanto; militiae summum ius habento, nemini populusve iusserit, tot sunto. Eundem magistratum, ni interfuerint decern anni, ne quis capito; aevitatem annali lege servanto. Ast quando duellum gravius, discordiae civium escunt, oenus ne amplius sex menses, si senatus creverit, idem iuris quod duo consules teneto, isque

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the temples, the streets, the water system, and the public treasury and revenues of the city. They shall distribute the people into tribes, and thereafter classify them according to their fortunes, ages, and ranks. They shall enroll the young men as horsemen and foot soldiers. They shall prohibit celibacy,4 guard the morals of the people, and permit no scandal in the Senate. They shall be two in number and hold office for five years, while other magistracies shall be annual; and the authority of this office shall be perpetual. The administrator of justice, who decides private actions, or directs their decision, shall be the praetor. He shall be the guardian of civil rights and shall have as many colleagues, of equal authority, as the Senate may decree or the People order. The regal sovereignty shall be vested in two magistrates; and from their leading, judging, and counseling, these shall be called praetors, judges, or consuls. With the army afield they shall have the supreme authority, subject to no one. For them the public safety shall be the supreme law. In this magistracy no one shall succeed himself within ten years; age limits shall be regulated by an annual law. But when there is a serious war or civil disorder, a single magistrate shall be appointed for six months only, if the Senate so decrees, who shall unite in his person the authority of both consuls. And when such a magistrate has 4

Frequent reference is made in the histories to a law against celibacy, or a law requiring persons of suitable age to be married (Dionsius IX, 22). The well-known speech of the censor Metellus Numidicus (102 B.C.) on this subject, however, suggests compulsion by moral duty only and not by positive law. Aulus Gellius (I, 6) quotes the censor as follows: "If we could get on without a wife, Romans, we would all avoid the annoyance; but since nature has ordained that we can neither live very comfortably with them nor at all without them, we must take thought for our lasting well-being rather than for the pleasure of the moment." See also Livy Periocha LIX; Suetonius Augustus 89. Apparently the entire matter lay within the disciplinary jurisdiction of the censors.

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ave sinistra dictus populi magister esto; equitatumque qui regat habeto pari iure cum eo, quicumque erit iuris disceptator. Ast quando consulis magisterve populi nee escunt, reliqui magistrates ne sunto; auspicia patrum sunto, ollisque ec se produnto, qui comitiatu creare consules rite possit. Imperia, potestates, legationes, quom senatus creverit populusve iusserit, ex urbe exeunto, duella iuste gerunto, sociis parcunto, se et servos continento, populi sui gloriam augento, domum cum laude redeunto. Rei suae ergo ne quis legatus esto. Plebes quos pro se contra vim auxilii ergo decern creassit, ei tribuni eius sunto, quodque i prohibessint quodque plebem rogassint, ratum esto; sanctique sunto neve plebem orbam tribunis relinquunto. Omnes magistratus auspicium iudiciumque habento, exque is senatus esto; eius decreta rata sunto; ast potestas par maiorve prohibessit, perscripta servanto. Is ordo vitio vacato, ceteris specimen esto.

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been proclaimed under favorable auspices, he shall be Master of the People.5 He shall have an assistant to command the cavalry6 whose rank shall be equal to that of the administrator of justice.7 But when there are neither consuls nor a Master of the People, there shall be no other magistrates, and the auspices shall be in the hands of the Senate, which shall appoint one of its members8 to conduct the election of consuls in the customary manner. The sovereign commanders, the lesser magistrates, and their delegates shall go forth from the city whenever the Senate decrees or the People orders that they do so. They shall justly prosecute all just wars, spare our allies, restrain themselves and their subordinates, add to the glory of their country, and return home with honor. No one, therefore, shall exercise the delegated authority of the state in his own interest. The common people shall elect ten officers to protect them against oppression, and these shall be their tribunes. Whatever they prohibit, whatever they demand for the common people, shall be law. Their persons shall be inviolable, and they shall never leave the common people without their tribunes. All magistrates shall have appropriate authority and jurisdiction, and from these magistrates the Senate shall be formed. Decrees of the Senate shall be law; but if vetoed by equal or higher authority, they shall nevertheless be recorded and preserved. The Senate as an institution shall be free from reproach. It shall be a model of virtue to all. 5 6 7 8

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Creatio magistratum, iudicia populi, iussa vetita quom suffragio cosciscentur, optumatibus nota, plebi libera sunto. IV. Ast quid erit, quod extra magistrates coerari oesus sit, qui coeret populus creato eique ius coerandi dato. Cum populo patribusque agendi ius esto consuli, praetori, magistro populi equitumque eique quern patres produnt consulum rogandorum ergo; tribunisque, quos sibi plebes rogassit, ius esto cum patribus agendi; idem ad plebem quod oesus erit ferunto. Quae cum populo quaeque in patribus agentur, modica sunto. Senatori, qui nee aderit, aut causa aut culpa esto; loco senator et modo orator; causas populi teneto. Vis in populo abesto. Par maiorve potestas plus valeto. Ast quid turbassitur in agendo, fraus actoris esto. Intercessor rei malae salutaris civis esto. Qui agent, auspicia servanto, auguri publico parento, promulgata proposita in aerario cognita agunto nee plus quam de singulis rebus semel con-

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The creation of magistrates, judgments of the People, and the adoption and vetoing of decrees, when done by voting, shall be published to the nobles, and be free to the common people. IV. If any matter arise outside the established jurisdiction of the magistrates, a magistrate shall be created by the People, whose jurisdiction shall extend thereto. The consuls, praetors, masters of the people, masters of the horse, and officials designated by the Senate for the election of consuls, shall have authority to consult with the assemblies of the People and the Senate.9 The tribunes of the common people shall have authority to consult with the Senate likewise to protect the interests of the common people.10 All consultations with the assemblies of the People and with the Senate shall be temperate and dignified. Senators who are absent from meetings must either show cause or be held at fault. Every senator shall speak in his turn, with moderation, and be ever mindful of the interests of the people. There shall be no violence at meetings of assemblies of the People. Equal or higher authority shall prevail. But if any disturbance arise at an assembly it shall be the responsibility of the presiding officer. One who vetoes a bad measure shall be considered a good citizen. Presiding officers shall observe the auspices, obey the public augur, and see to it that all bills proposed and posted are certified and deposited in the treasury. They shall consider but one matter at a time, instruct the people 9

Aulus Gellius (XIII, 16) defines cum populo agere as "to propose laws to the People." Consulting with the assemblies and with the Senate must therefore be understood here to be for the purpose of proposing laws to the assemblies as well as "consulting" with the Senate. 10 Plebes is customarily translated as the common people or, more literally, the plebeians. Plebes must not be confused with populus, the customary reference to the People as a governmental institution. The plebeians, or common people, had relatively small voice in the Centuriate Assembly, which represented the Populus Romanus in its capacity, jointly with the Senate, as repository of the sovereign authority of the state.

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sulunto, rem populum docento, doceri a magistratibus privatisque patiunto. Privilegia ne inroganto; de capite civis nisi per maximum comitiatum ollosque, quos censores in partibus populi locasint, ne ferunto. Donum ne capiunto neve danto neve petenda neve gerenda neve gesta potestate. Quod quis earum rerum migrassit noxiae poena par esto. Censoris fidem legum custodiunto; privati ad eos acta referunto nee eo magis lege liberi sunto. Lex recitata est. Discedere et tabellam iubebo dari. V. Q. Quam brevi, frater, in conspectu posita est a te omnium magistratum descriptio, sed ea paene nostrae civitatis, etsi a te paulum adlatum est novi.

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in the nature of the question, and permit magistrates and private citizens as well to advise on the subject. They shall propose no laws granting special privileges nor condemn any citizen to capital punishment except through trial before the highest assembly of those whom the censors have enrolled as citizens. They shall neither give nor accept gifts, either during a candidacy, or during or after a term of office. For any violation of these laws there shall be punishment fitting to the offense. The keeping of the laws shall be committed to the charge of the censors. Public officers, on retiring from their posts, shall give the censors an account of their conduct of office, but shall not become immune from prosecution on this account. The law has been read. Now withdraw and give your votes. V. Quintus: With what conciseness, my brother, you have laid before us the functions of all the magistrates! But your system is almost that of our own state, although a little that is new has also been added by yourself.

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that the civil law of Rome was administered under the sovereign authority of the praetor, the chief law officer of the state. Acting first as judge, he came later to declare the governing law and designate a subordinate judge {index) to determine the facts and apply the law so declared to the particular case. Such trial of civil cases developed into a formulary procedure (legis actio), and in time the governing law which the praetor declared, recorded by his assistants in an ever-expanding volume of laws, came to be known as the praetorian edict. Since the praetor was a political officer, with a term of office of but one year, he was obliged to rely upon the edict of his predecessor for the major features of his own edict, and, in the main at least, simply amplified and modified the existing law by his own decisions.1 Through these annually revised praetorian edicts may be traced the orderly growth of Roman civil law which culminated in the Gregorian and Hermogenian codes, the great Codex Theodosianus, and finally in the Corpus Juris Chilis of Justinian. The criminal law of Rome enjoyed no such distinction. It could in fact hardly be called law (jus, droit, recht, derecho, diritto) at all. One had a IT HAS BEEN OBSERVED

1

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See note 26, Chapter II.

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ius—that is to say, a legal "right"—against another individual. Upon appeal to the praetor this ius would be declared and decreed in one's favor. It was through virtue of no ius, however, that police or other magistrates restrained and controlled the conduct of individual citizens. This was simply a matter of discipline (coercitio).2 There were, to be sure, certain "laws" or statutes (leges) in the form of general rules prescribed for the guidance of the magistrates in particular matters of which the particular leges treated; but such statutes did not purport to supplant the inherent authority of the magistrates themselves, acting according to their own discretion (within the limits of the imperium or potestas of their office) as the ultimate guardians of public order in its general and multifarious aspects. That the "public trials" employed in the course of criminal proceedings, even in the later Empire, were totally dissimilar to the administration of civil law (ius, droit, etc.) in its usual meaning is given especial emphasis in the Institutes of Justinian. The introduction to a concluding brief section of the Institutes devoted to an enumeration of the more important of the criminal statutes (leges) enacted during the preceding centuries, and still in force, states:3 De Publicis Iudiciis— De Differentia a Privatis

Public Trials— Distinguished from Private

Publica judicia neque per actiones ordinantur; neque omnino quicquam simile habent cum ceteris iudiciis, de quibus locuti sumus.

Public trials are not conducted through actions; nor do they have anything whatever in common with the other trials that we have discussed.

Patria Potestas There is perhaps no feature of Roman social life so striking from a modern viewpoint as the absolute power of coercion—coercitio, as it was called in Latin—that was vested in the paterfamilias, or head of the household, with 2 3

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Theodor Mommsen, Romisches Strafrecht, p. 35. Justinian, The Institutes of Justinian, IV, 18.

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respect to his entire establishment. Not only his slaves, but his wife4 and children as well, were, in legal contemplation, virtually his personal chattels, not greatly different in character from domestic animals. This drastic paternal or patriarchal authority, known as the patria potestas, had its origin as a sociological institution before the foundation of the state as a political entity. Maine says that it is "the first and greatest landmark in the course of legal history.5 The Twelve Tables provided:6 The father shall, during his whole life, have absolute power over his children. He may imprison his son, or scourge him, or make him work in the fields in chains, or kill him—even though the son hold the highest office of state and is distinguished for his public services. But if a father sell his son three times, then the son shall be free. This patriarchal authority, or patria potestas, was not affected by the arrival of the children at maturity, nor by a son's marriage and the addition of grandchildren to the familia, or household. A daughter, upon her marriage, became a member of her husband's family, and therefore passed from her father's control only to come under the like authority of her father-in-law. Dionysius, evidently impressed, even after his long residence in Rome, by the anomaly of such paternal despotism, tells of high officers of state being 4 As to the wife, this power—based upon the fiction that the wife, as a female member of the familia, was legally a daughter ( ! ) of the paterfamilias—was very soon relaxed, and virtually disappeared. The story of Coriolanus indicates that from an early time the mother enjoyed a prestige in the family comparable with that of the father. 5 Sir Henry J. S. Maine, Lectures on the Early History of Institutions, p. 216. 6 There is no record of the original text of this table (Table I V ) . Dionysius (II, 26 and 27) gives its substance as follows: "At Romanorum legislator omnem, ut ita dicam, poiestatem in filium patri concessit, idque toto vitae tempore; she eum in career em coniicere, she flagris caedere, she vinctum ad rusticum opus detinere, she occidere vellet; licet filius iam rempublicam administraret et inter summos magistros censeretur, et propter suum studium in rempublicam laudaretur." The concluding sentence is supplied by Ulpian (Regulations 10, 1 ) : t(Si pater filium ter venum duit, filius a patre liber esto" See Joseph L. E. Ortolan, History of Roman Law, p. 85.

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pulled down from the rostrum and led home by their fathers when displeased with their conduct. 7 There were, however, evidently at least some customary limitations upon the patriarchal authority in the case of public officials, for Aulus Gellius makes a distinction between official and personal relations in such a case. H e illustrates his point by the example of a consul who required his father, who was a lesser magistrate, to dismount on approaching him; and he notes the father's commendation of the propriety of his son's official conduct in so doing. 8 Such limitations upon the patria potestas appear, however, to have been merely customary, and not legally mandatory. There were in any event various moral restrictions upon the conduct of a father toward his children, and in the course of time certain legal limitations appear to have developed as well. 9 These were, however, after the order of laws for the prevention of cruelty to animals. They did not give the son a legal "right" against the father. Even in the law of Justinian we find suits against the paterfamilias expressly denied, and the patria potestas held up with pride as a peculiarly Roman institution, extending not merely to children, but to grandchildren and great-grandchildren, and so on without end. 10 De Patria Potestas Patriarchal Authority III. Qui igitur ex te et uxore tua nascitur, in tua potestate est. Item qui ex filio tuo et uxore eius nascitur, id est, nepos tuus et neptis, aeque in tua sunt potestate: pronepos et proneptis, et deinceps ceteri.

III. The child of you and your wife is under your power. Likewise the issue of your son and his wife, that is, your grandsons and granddaughters, are equally so: and so are your greatgrandchildren, and so on.

7 II, 26. Dionysius also states that a certain distinguished consul, Spurius Cassius Viscellinus by name, after his conviction of misconduct in office, was (according to some reports) taken home by his father and executed. See also Livy II, 41, to the same effect.

8 11, 2. 9

Livy (VII, 4) tells of the prosecution of Lucius Manlius by a tribune of the common people on a charge of brutal cruelty to his son. See note 44, Chapter IV. 10 Justinian, Institutes, I, 9.

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The dominium, or unlimited authority of a master over his slaves, incident to his chattel ownership of them, was equally complete, and of course subject to fewer moral restrictions. Even in the later Empire, when wanton cruelty to slaves was forbidden by imperial edict, the disciplinary power of coercion suffered no material impairment. The head of the Roman household, which included slaves as well as unmarried daughters and unemancipated sons and their offspring, remained to the last, in legal contemplation, its despotic master.11 Imperium: the Patria Potestas of the Sovereign The importance of the familia, or household, in Roman social and political life cannot be exaggerated. It is hardly too much to say that it contained and absorbed both, coextensively. To the extent that the state transcended the family it was simply a superfamily. The king, in the early days, was the super-paterfamilias—the source of all authority, with the unquestioned power of life and death known as the imperium, which was simply the patria potestas of the super-family.12 The lesser magistrates were but deputies of the king and acted upon his authority, not their own. Even the violent reaction against the Tarquins, which expelled the kings from Rome and made the kingly office an anathema, left undisturbed the concept of the imperium as the necessary ultimate authority without which neither the family nor the state could exist. Under the Republic the imperium was held in joint tenancy by the two coordinate heads of the state, who were first known as generals {praetors) or judges (iudices) but later simply as colleagues (consules) ,13 The exercise of the imperium by the consuls was greatly limited in practice both by the neutralizing effect of its joint tenancy—each consul having complete veto power over his colleague—and by the short term of office of one year, after which both consuls returned to private life 11

Mommsen, Strajrecht, p. 28. Mommsen, Strajrecht, pp. 27 ff. 13 Julius Lipsius, De Militia Romana, V, 215.

12

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and could be made responsible for their acts. This limitation was of course a carefully designed feature of the republican constitution. It but emphasized, however, the conception that the imperium itself was essentially absolute; and its absolute character in fact asserted itself without limitation when it was, in times of crisis, vested in the sole person of a dictator, or master of the people {magister popul'i), as he was called, who was not subject to veto. Provocation The Beginning of Criminal Law The absolute and arbitrary authority of the paterfamilias and of the magistrate with the imperium cannot be called law. It is a power of coercion which, for want of a better word, we may call discipline. Law implies some rule of conduct, or at least a regularized procedure in applying coercion. Mommsen thus sees the beginning of Roman criminal law in the limitations of the powers of the magistrates within the city which came with the separation of the city government from the arbitrary rule of military command in the field.15 It is not easy to say just when these limitations were first effectively imposed, as a matter of custom or of positive law. Even under the kings the public assemblies (comitia) could hear an appeal from punishment awarded by the king—with his permission, of course—and (reversing the English procedure) could grant a pardon.16 This appeal to the People (provocatio ad populum) became a matter of right in cases where the caput (life or citizenship) of a Roman citizen was involved with the enactment of a certain Valerian Law on Appeals (Lex Valeria de provocatione), which has been variously dated at 509 B.C. (the first year of the Republic), 449 B.C. (by Mommsen), and 300 B.C.17 This law is accordingly accounted by Mommsen 14

Cicero De Legibus III, 4. Mommsen, Strafrecht, p. 27. 16 Cicero De Re Publico. II, 31. See Livy X, 8; id. I, 26; Dionysius III, 21. 17 Valerian Laws (Leges Valeriae) were enacted at each of these dates (Livy X, 8; Dionysius V, 20). There is a question, however, as to which of them first gave to the citizens a really effective right of appeal. 15

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as the first criminal law.18 Strachan-Davidson—able commentator on Mommsen—finds the foundation of Roman criminal law, on the other hand, in the imperium militiae, or the supreme command outside the city,19 and the beginning of public criminal law in the conception of a citizen placing himself in the position of a public enemy (perduellis) through an act of treason (perduellio).20 Discipline and Law The difference in view that is here suggested is one that is fundamental. Before it can be fully appreciated it is necessary to distinguish sharply, as Mommsen does—Strachan-Davidson thinks too sharply—between the Latin conceptions of coercitio and iudicatio21 or, as we shall translate the terms, somewhat inexactly but at least with the right feeling, between discipline and law. Discipline: Power to Compel Obedience Cicero refers significantly to this distinction in the opening lines of his model constitution, as set out at the end of the preceding chapter: The magistrate shall discipline the disobedient even if innocent citizen by fine, imprisonment, orflogging,unless this be forbidden by equal or higher authority, or by the People, to whom there shall be the right of appeal. For one who has been judged and sentenced by a magistrate shall have the right of a trial before the People as to thefineor other penalty imposed. It is a peculiar fact that the word innoxium (innocent), which appears in the same form in all the manuscripts,22 has been almost universally considered by Latin scholars to be in error, and the translation rendered, in effect: "The magistrate shall restrain the disobedient and offending (crimi18 19 20

21 22

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Mommsen, Strafrecht, pp. 27, 57. James L. Strachan-Davidson, Problems of the Roman Criminal Law, p. 100. Ibid., p. 104.

Ibid., p. 98. See notes to Keyes' text and translation, p. 462.

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nal) citizen by fine, imprisonment . . ." Mommsen calls attention to the purely arbitrary nature of discipline (coercitio) and renders innoxium as it appears in the manuscripts.23 In this view it is immaterial that the citizen may be innoxius (innocent). The magistrate may nevertheless by disciplinary measures command his obedience, "dutifully and without protest.,,24 This power to command obedience within the limits of the authority of the magistrate is what we refer to as discipline (coercitio), as distinguished from a judgment of law (iudicatio). In matters of discipline there is no question as to whether the citizen is right or wrong. Like the son or slave before the head of the household {paterfamilias), or, in a measure, a child of tender years before its parents in our own society, the citizen has no rights in this area. He must simply obey.25 Otherwise stated, the citizen is not punished for violation of law, but is disciplined for disobedience of a magistrate, in a manner somewhat analagous to the concept of punishment for "contempt of court" in our own administration of justice. It should be observed further that such disciplinary authority administered by the magistrate is not to be viewed as "arbitrary" in the sense that it is habitually capricious, irresponsible, or unpredictable; but it is arbitrary in the sense that it is essentially an exercise by the magistrate of his discretion, and not administration by him of superimposed law. Magistrates customarily issued their orders in the form of decrees, which were of course subject to change at their pleasure. Such ordinances of the magistrates were in effect executive regulations which, so far as the power of the magistrate extended, had virtually statutory force. Within prescribed limits of severity every magistrate could punish violations of his orders by fines or other punishments. In this exercise of his disciplinary power the magistrate was himself the judge. By way of analogy it may be observed that 23

See Strachan-Davidson, Problems, p. 96. Cicero De Legibus III, 3. 25 Mommsen (Strafrecht, p. 39) says that coercion (discipline) is associated with disobedience just as punishment is associated with crime. 24

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the modern military commander likewise issues orders and regulations with the force of law but, beyond modest punishment which he may personally impose, must leave to an impartial court-martial the determination of their violation and the award of punishment therefor. To the extent that he may determine for himself violations of orders and award of punishment, like the Roman magistrate, he commands obedience as a matter of simple discipline; for the disciplinary relation of command and obedience extends only so far as the power of summary coercion extends to enforce it. Even though the right of command be preserved, to the extent that obedience is enforced by some agency other than the commander, his disciplinary authority is to that extent supplanted; and to the extent that it is enforced through the application of rules, or through a regularized procedure, discipline is replaced or supplemented by law. Law (Ius): A Determination of Right Law comes into consideration in the Roman system only if the magistrate, in enforcing obedience, awards punishment against which the citizen has a regularized or * legal" right of appeal. The Valerian Law gave this right to the Roman citizen in case his punishment were capital. It was also the right of the citizen to invoke the aid of a tribune of the common people to secure his right of appeal to the People under this law and to secure his liberty pending such appeal. This appeal in capital cases lay to the People (ad populum) in the Centuriate Assembly,26 and followed a fixed formulary procedure.27 The hearing by the assembly was, as has been indicated, not for the purpose of ascertaining whether a crime had been committed, but was rather an appeal in grace for the remission of the punishment.28 The accused was charged with no violation of law; or, if he was, this was inci26

Cicero De Legibus III, 4. Abel H. J. Greenidge, Pandias M. Schizas, Offenses against the State in Roman Law, p. 38. 28 Theodor Mommsen, I History of Rome, p. 557. 27

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dental.29 The case was, in fact, not one of the state vs. the citizen, based upon alleged violation of law, but rather of the magistrate vs. the citizen concerning the punishment imposed. The Assembly, in its capacity of sovereign arbiter of the case, could answer only "yes" or "no" to all questions put before it. That is, it could either sustain the magistrate or set the citizen free. It could substitute no sentence of its own. Criminal Statutes The product of this regularized procedure through which the fate of the accused was determined was, however, a judgment of law (iudicatio), even though no criminal statute (lex) was applied to the regulation of the accused's conduct. A number of such statutes specifically denouncing the more infamous crimes were in fact enacted from time to time.30 Detailed statutory rules, however, were never designed to preempt the disciplinary powers of the Roman magistrates and replace the rule of their broadly regulated discretion by a comprehensive codified criminal law such as we know today. Criminal Administration: A Matter of Discipline Reverting to the opposing conceptions of "criminal law" of Mommsen and his commentator, Strachan-Davidson, therefore—to which we refer solely as illustrative of this very significant distinction between law and discipline—it is clear that the latter, in finding the essence of Roman criminal law in the unregulated authority of the military commander in the field {imperium militiae)y simply recognized that what we have described as 29 Political trials based upon nothing more specific than general dislike are notorious. W e need mention only the banishment of the national hero, Coriolanus, whose offense, Livy says (II, 34), was haughtiness toward the plebeians, and the capital trial of the young patrician, Caeso (Livy III, 12), on the charge of "general dislike." It cannot be surprising that under such conditions the administration of criminal justice was corrupt and inefficient. See Mommsen, I History of Rome, p. 579, and Chapter VIII of the present volume. 30 Justinian, Institutes, I, 9.

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discipline served the essential purposes in Roman society that are usually associated with the administration of criminal law. This is unquestionably true, as is also his observation of the psychological short-cut to outlawry that was customarily employed in identifying the traitor with the public enemy, thus making short shrift of him by depriving him of all benefit of legal regularity. Roman law, we must recall, was for the Roman citizen—not for the foreigner (peregrinus), nor even, it would appear, for Roman women;31 and certainly it was not for public enemies. The Roman, shorn of his citizenship through the fiction that his crime de-Romanized him, was thus amenable directly to the unlimited authority of the magistrate. The emphasis is again upon discipline (coercitio) as opposed to law as we have defined it. The position of Mommsen is entirely consistent with this view if we note simply that unregulated discipline, however significant in Roman life, in the patriarchal authority (patria potestas), and in the disciplinary authority (imperium, potestas) of the magistrates, is nevertheless not law, and cannot be so called with any respect for the consistent use of language. The citizen's right of appeal from the disciplinary jurisdiction of the magistrate then marks the advent of criminal law into Roman life.32 Discipline in the Army In the government and control of the army, with which discipline is habitually and necessarily associated, it is natural that the restraining influence 31

Mommsen, Strafrecht, p. 37. The distinction here made is of course conceptual only, and was of no functional significance to the Romans, to whom discipline was the natural order, and who recognized no distinction between discipline and law, as we have come to define it. Note Cicero's statement that orders of the commanding general—purely disciplinary in character—"shall be accepted as unquestioned law (ius ratumque esto)." The conceptual distinction is of importance to us in marking the first appearance in Roman criminal administration of what we recognize as law, and delineating clearly and succinctly the conceptual and functional distinction which must be made in our Anglo-American system of government between the customary and usual regime of law and the exceptional and limited regime of discipline. 32

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of law should be much less felt than in the civil community. Even in modern states where criminal law is developed in detail that purports to embrace every wrongful act that a citizen may commit, the necessity of some degree of unrestricted disciplinary authority is universally recognized. In the early Roman state, where discipline was the essence of criminal administration even within the city, it was inescapable that in the army authoritative discipline, consisting essentially of the unrestrained discretion of its commander, should be the natural order. Such in fact was the authority of the military commander in the field, called the imperium militiae—as absolute beyond the walls of the city as was its prototype, the patriarchal authority (patria potestas) of the head of the Roman family. In the words of Cicero in his model constitution:33 "There shall be no appeal from the commander of an army in the field. The orders of the commanding general shall be accepted as unquestioned law." Scarcity of Military-Legal Literature It of course follows that under the imperium militiae there could be no law beside the orders of the commanding general and, with regard to his own administration of justice, no law at all as distinguished from discipline.34 It appears, moreover, that with few exceptions35 the commanding general did personally administer justice in all serious cases, and that all but serious cases were left to the similar disciplinary control of his subordinates. We therefore reach the rather surprising result that—except for certain customary procedures to be discussed presently—in effect there was no Roman military law, a fact which, of course, largely accounts for the scant mention we find made of it in Roman legal literature. In the later days of the Empire, as we shall observe in a subsequent chapter,36 there were certain 33

De Legibus III, 3. Mommsen, Strafrecht, p. 30. 35 See Chapter IV. 36 Chapter IX. 34

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military codes, exemplified in the Military Laws from Ruffus; and there are sections on military affairs (JDe Re Militari) in the Theodosian Code and in the Corpus Juris Civilis of Justinian. Indicative of its comparative importance from a purely legal viewpoint, however, it is to be noted that in Justinian's Digest the section De Re Militari in (Chapter 16 of Book XLIX) occupies fewer than ten pages of the ten thousand or more in the average multivolume edition of that compendium of Roman law. Even this ratio, moreover, does not represent the comparative legal status of military justice in the vast body of Roman law; for res militaris is of course not military law or justice, but simply military affairs—taken in its context here, military affairs that have some legal significance. Res is the vaguest, most indefinite word in the Latin language. It connotes miscellaneous in a very broad sense, and its use in the great codes of Roman law is a significant reference to what were considered by the codifiers to be "military miscellanies."37 The absence of a discrete system of Roman military justice in the armies of the Republic does not imply of course that there were no regular means of administering justice in the army as a matter of custom. In addition to the substantive rules found in the Military Laws from Ruffus and in the sections on military affairs of the civil codes (which came into effect late in the Empire, it must be borne in mind, but which, nevertheless, probably reflect much of the spirit of earlier law) we find frequent mention made of customary procedure in the enforcement of discipline in the early armies in the works of historians and antiquarians of the classical age of Latin literature. The histories of Polybius and Livy and the Roman Antiquities of Dionysius of Halicarnassus are, for this purpose, of especial interest.38 From such legal and historical fragments it is possible to reconstruct a composite system of military justice that we may fairly call Roman if we bear in mind that the diverse and loosely related elements which are thus deliberately drawn into synthesis were never in fact so intimately correlated in any one period of 37 38

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The texts of these "military miscellanies" will be found in the Appendices. See "Notes on Sources."

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Roman history. Such an integration can be effected, moreover—if at all— only through resort to probable inferences which certain Roman law scholars in recent years have called interpolations,™ aided largely by a more complete and continuous knowledge of contemporary institutions in other fields of government and polity, which serve as an illuminated background upon which military-legal relations are shadowed. To construct now a discrete formulation of "Roman Military Law" upon the pattern of military justice in modern states—under such headings as organization of courts, their jurisdiction, procedure, and so on—would be of course a highly artificial proceeding. It could provide no true picture of the disciplinary administration of Roman armies for the obvious reason that Roman armies were not administered with any concern for such afterimposed patterns. Such after-construction could therefore be justified only for comparative purposes—as an aid, for example, to discovering the answer to such a comparative question as "What, in the Roman system of disciplinary administration, corresponded to or answered the purposes of thus-and-so in modern military justice?"40 Anyone undertaking such a construction must, it is clear, acquire a primary understanding of at least the major features of the Roman system in terms of its own institutions and in the light of its own customary procedure. 39 Emilio Albertario, Contributi alia storia della ricerca delle interpolazioni, and Delictum e crimen nel diritto romano-classico e nella legislazione giustinianea. 40 See note 32 above.

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IV. MILITARY ORGANIZATION

The Levy T H E SERVIAN POLITICO-MILITARY ORGANIZATION of the Roman state and its origins have been discussed in a previous chapter. We have seen the centuries assembled on the Campus Martius as the Roman People (populus romanus) in political capacity. Let us now observe them upon the occasion of a levy, or draft (dilectus) of the Roman army. Four legions are to be formed—the customary consular army of the Republic.1 The twentyfour military tribunes who, under the consuls, will command the legions (a college of six tribunes to each legion) have already been chosen, along with the other magistrates of the city—half of them by consular appointment, that is the Rufulian military tribunes {tribuni militum rufuli) ,2 the other half, known as the military tribunes of the people {tribuni militum a populo), by popular election—and are present to take charge of and organize their legions.3 They proceed now to choose a tribe by lot and to select from this tribe four men of equal physical prowess and with 1 Polybius I, 16; id. Ill, 107; Livy VIII, 8. The four legions were often divided into two separate armies of two legions each, with a single consul in command of each army. 2 So called after Rutilius Rufus, author of the law providing for their election. 3 Polybius VI, 19. See Theodor Mommsen, Abriss des romischen Staatsrecht, p. 184; XI Marquardt, 61.

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names of good omen. One of these is then chosen for each legion, the first legion having first choice. A second four are called and chosen in the same way except that this time the second legion has first choice, and so on until the quota of that tribe is exhausted. Then a second tribe is chosen by lot as before, and so the choosing continues until the legions are filled. In this way the tribes are distributed uniformly through the legions, and the legions are as nearly equal in every way as it is physically possible to make them.5 The Oath After the levy the tribunes administered the oath. The exact words of the soldiers' oath are not known, but Polybius says that each soldier swore "to be obedient and to execute the orders of his officers to the best of his ability."6 The oath was first administered to a single soldier, selected for that purpose from each legion, who repeated the words of the oath in full. Then, in answer to a roll-call, each soldier stepped out in his turn answering "the same for me" {idem in me) .7 The Legion: Tactical Structure The legion, in the prime of the Republic, contained 4,200 foot troops (more or less) divided into * lines'' {ordines) or arms, as follows:8 4

Cicero De Divinatione I, 45. The description of the levy is from Polybius VI, 20. See also XI Marquardt, 61. 6 Polybius VI, 21. Lydius (258) compares this oath of the soldiers with the Christian oath: "These follow the Lamb, wherever he may go" (Revelation, XIV, 4 ) ; see also II Samuel, XV, 21. For a later form of this oath as one of allegiance to the emperor see Carl G. Bruns, Fontes Juris Romani, pp. 101, 102; Ancient Roman Statutes, Documents 149, 160, 161. See also Chapter VI. 7 Polybius VI, 21; XI Marquardt, 85. 8 These are the figures given by Polybius (VI, 21 et seq.). Livy (VIII, 8) describes a legion of 5,000 containing the same elements, but in slightly different proportions. See also Dionysius VI, 10; Vegetius II, 1. 5

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First Line:

Second Line:

Third Line:

Supernumeraries:

1,200 hastati, or spearmen. These were the average, medium-armed line-of-battle soldiers, forming the first line of resistance to meet the enemy 1,200 prmdpes, or leaders. These were mature men in their prime, the best-armed and equipped in the legion. They formed the main line of resistance. 600 triarii, or "third" men. These were the oldest and most experienced soldiers, employed as a tactical reserve. 1,200 velites, or skirmishers. These were young men, lightly armed, and not organized as a separate line or arm, but distributed among the entire sixty centuries of the legion to fill out their strength.

Administrative Organization Each of the three lines was organized into ten maniples (twenty centuries) . The sixty centuries of the legion thus averaged some 60 men each, plus certain supernumeraries, indicating that the century had ceased to be a "hundred" in the military as well as in the political organization. It had also ceased to be the "company" in the military organization, and in fact corresponded more nearly to the platoon in modern armies. Two centuries together formed a single maniple (mampulus), so-called, at least etymologically, from the "handful" of hay that is supposed to have served originally as its standard or guidon.9 This unit of 120 men was the Roman "company" in the modern sense of basic administrative unit. Three such units, or maniples, combined to form a cohort which later came to be the important small tactical unit made famous by Caesar.10 The ten cohorts, plus three hundred cavalry attached, formed the legion. 9

XI Marquardt, 35. See Chapter VIII; Vegetius II, 6. Turpin de Crisse in his Commentaires sur les Institutions Militaires de Vegece (I, 299) says that Marius abolished the maniple and 10

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The Cavalry The cavalry was similarly organized into ten squadrons (turmae) of thirty men each.11 Each squadron in turn consisted of three squads or decuries (decuria) of ten men each, and three decurions, or leaders-of-ten, the senior of whom commanded the squadron. The cavalry unit, originally commanded by three tribunes-of-the-swift (tribuni celerum) who corresponded to the military tribunes of the legion proper, came later to be commanded by the military tribunes themselves. Although it was the elite branch of the army, the Roman cavalry was generally ineffective and unimportant from a military point of view.12 The Chain of Command The status of officers and the chain of command in the Roman legions form a rather confused picture in terms of modern conceptions. Each of the consuls normally commanded an army of two legions, plus a larger number of allied troops (socii) furnished by the Italian colonies.13 Officers of the legion were in two large categories: first the military tribunes, who were the officers of high social caste, and next the centurions, who exercised the personal command of the maniples. Two separate officers' calls were instituted the organization by cohorts described by Vegetius. See also Theodor Mommsen, 3 History of Rome 245. Whether or not the maniple was completely abolished (which appears doubtful), the cohort was certainly the important small tactical unit from the time of Marius. Sulla, Pompey, and Caesar in particular made it famous. See F. C. Liskenne, Bibliotheque Historique et Militaire, Vol. 2. 11 Polybius VI, 25. See Theodor Mommsen, Romiscke Staatsrecht, p. 120; X I Marquardt, 39. 12 X I Marquardt, 40. Most of the cavalry was furnished by the allies (Polybius VI, 26). Upon occasions, however, the cavalry distinguished itself by dismounting and setting an example of bravery to the infantry (Livy II, 20; id. IV, 38) who, it would appear from Livy's description, were more encouraged by the example of the young nobles than aided by their military prowess. 13 Polybius VI, 26.

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held at dawn each morning. First the tribunes reported to the consul. Thereafter the centurions and cavalry officers (decurions) reported at the tents of the tribunes. Orders were thus passed orally through the tribunes to the centurions and decurions, who conveyed them at the proper time to the soldiers.14 The Tribunes of the Soldiers Nominally commanding each legion, under the consul, was the college of six military tribunes. Though their duties were purely military, these officers were semipolitical in character. They were created and invested with office annually, along with the other magistrates of the city, and their office was a step toward higher political office.15 The tribunes were therefore in general young men of senatorial or equestrian status launched upon political careers, and not necessarily seasoned or technically skilled soldiers with service that we should be inclined to consider commensurate with their military rank.16 They enjoyed very great dignity of rank and position but, except in a training capacity, were apparently of minor importance in way of battle command. The customary method of exercise of their administrative control of the legion, necessitated by their collegia!, character, is suggestive more of the status of officer-of-the-day in modern armies than of commanding officer. As a practical means of functioning in a military capacity while still retaining their joint control, the college of six tribunes was divided into pairs, and each pair was on duty in turn for two months out of the six of the normal campaign; and the two tribunes on duty alternated in command from day to day.17 Such day-to-day control could hardly be other than routine, under the real direction of the consul in all matters of extra-routine importance; but the opportunities afforded by such service 14

Polybius VI, 34. Polybius VI, 19. See Mommsen, Abriss, p. 184; XI Marquardt, 61. 16 Mommsen, 1 History of Rome, 561; XI Marquardt, 61 flf. 17 Polybius VI, 34. 15

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to young professionals for training for higher command are obvious. When Caesar introduced into the legion the legatus legwms, or lieutenant-general in command of the legion,18 and when prefects and other senior officers were introduced into the chain of command the tribunes were further subordinated in relative practical command, without, however, being divested of their high rank and dignity of position in the legion.19 The Centurions Next in command to the tribunes were the centurions. These officers were, in point of qualifications, the military officers of career, and formed the real backbone of Roman discipline. Technically, of course, their service was not in a continuous career, since the levy was made anew each year, and new centurions appointed. The tribunes who made the appointments were guided, however, by the military records and reputations of the candidates, and centurions who had made good in former campaigns were customarily reappointed.20 The centurion was in no sense a political officer, 18

Caesar, The Gallic War, I, 52, 1: "Over each legion Caesar appointed a lieutenant-commander and a quaestor (paymaster)"; id. II, 20, 3. 19 XI Marquardt, 177 if.; Mommsen, 4 History of Rome, 582. It must not be inferred from what has been said of the inexperience and lack of technical skill of the military tribunes as a class that they were therefore of no importance. In fact, they performed routine functions of high importance, and many individual tribunes distinguished themselves in battle. The histories are full of examples of their gallantry and ability: Livy VII, 10; id. VII, 26; id. VII, 34; id. VIII, 7. Most of the great commanders of equestrian rank in fact began their careers as military tribunes. Titus Manlius (Torquatus), Marcus Valerius (Corvus), and Publius Decius (who, as consul, "devoted himself," as described in Chapter VI) are among those who especially distinguished themselves while tribunes of the soldiers. 20 Both Dionysius (IX, 39) and Livy (II, 55) tell of a centurion, Volero by name, who refused to serve when listed as a private in the following levy, when no fault had been found with his service as a centurion. The consuls ordered him whipped by the lictors, whereupon the tribunes of the common people came to his aid (indicating that his rights had been violated), and great disorder followed. Volero was not punished, but was instead elected tribune of the common people himself at the next elections.

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but reached his grade rather through a course of promotions from the ranks. He was looked upon as the best soldier of the maniple, and when he became the senior centurion of his legion was normally at the peak of his career. There were sixty centurions, as there were sixty centuries, in each legion. The command of the centurion was, however, not the century, but the maniple composed of two centuries, which at a very early period supplanted the century as the basic small tactical unit.21 The second centurion in each maniple was second in command, though in practice each centurion was in immediate charge of a century of the maniple, the second being also subject to the orders of the first. Each centurion, moreover, appointed a lieutenant (optzo) to assist him as rear-rank commander.22 Beneath the centurions and their lieutenants was a hierarchy of petty officers corresponding to noncommissioned officers and specialists in modern armies. These increased greatly in number and in grades under the Empire and came to be known, as a class, as prmcipales.23 Doctors, chaplains, and musicians were prmcipales as well as petty line officials, drill masters, grooms, orderlies, and adjutants of high ranking officers. Relative Rank and Prestige The centurion differed from the captain—his counterpart in modern armies—in having much less social prestige and aloofness, and much more military authority and responsibility. The tribunes were the officers of prestige and dignity of position, corresponding to commissioned officers in modern armies. In camp their tents were pitched in an area set apart, next to the praetorium or general headquarters of the consul in command.24 Polybius 21

X I Marquardt, 35. Polybius VI, 24. Aelian describes a similar system of command in the Greek phalanx, the commanders being the file leaders, each with a rear-rank commander as file closer (Aelianus, The Tactiks of Aelian: or art of embattailing an army . . . , Ch. V ) . 23 See Chapter V. 24 See the plan of a Roman camp on page 5 5. 22

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tells us that each tribune had three maniples which took turn, one maniple at a time, in doing personal services for him:25 When they encamp they pitch his tent for him and level the ground round it; and it is their duty to fence round any of his baggage that may require protection. They also supply two guards for him (a guard consists of four men), of which one is stationed in front of the tent and the other behind it next the horses.... And when the necessary comfort of the tribune is well attended to by this means, the dignity due to his rank is also amply maintained. The centurion enjoyed no comparable distinction. His tent was simply the one at the end of the company street.26 His pay was only twice the pay of a private soldier, and less than that of a cavalryman.27 Yet he ruled his maniple with an iron hand in battle and served the function not only of captain, but of higher tactical commander as well; for he had no superior in the legion other than the tribunes and the consul. The centurions were selected by the tribunes in order of merit, and formed a distinct hierarchy among themselves, with a regular order of promotion in grades designated by their line (ordo) and the number of their cohort. Thus the junior centurion was the hastatus posterior, or "rear spearman," of the 10th cohort; and the senior centurion was the primus pilus or "leader of the maniple" of the first. Antiquarians are not in accord as to the order of all the intermediate ranks—the pilus posterior, the princeps prior and posterior, the hastatus prior and posterior of the different cohorts—but there is no question that they formed a hierarchy of high importance among themselves within the legion, and that to be the "leader of the first maniple" (primus pilus) was the culminating ambition of every 2

s VI, 38. Polybius VI, 30. 27 Polybius VI, 39; Justus Lipsius, De Militia Romana, V, 319. The centurion received "double pay," a cavalryman "triple pay." Lipsius suggests that the pay of a tribune of the soldiers was so shockingly large that Polybius perhaps thought it best not to mention it. 26

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common soldier. He was recognized as the best soldier of the legion, and was entitled to a seat on the council of war with the tribunes.29 As commander of the first maniple he in fact led the legion into battle and had a responsibility in battle that was perhaps next to that of the consul himself.30 In social status, dignity, and prestige of position, the centurion was therefore comparable with the First Sergeant in our military establishment. In military authority and responsibility he was captain of his maniple and, technically, major and colonel as well, with far more actual disciplinary authority over his subordinates than any officer of modern armies. The Roman Camp Perhaps no better characterization of Roman disciplinary organization can be made than through the presentation of a camp of a consular army, as described by Polybius. The accompanying sketch is based upon Polybius' description.31 This plan of the Roman camp was rigid and fixed in all details and dimensions, regardless of terrain. When an army on the march approached a place of encampment a tribune, accompanied by centurions as assistants, rode ahead and selected a site. Having decided where the consul's tent should be placed, and on which side of it the troops should be encamped, they planted a white flag to mark the position of the consul's tent, and crimson flags to indicate the middle line of the tribunes' tents, and the limits of the encampment for the troops. A trace was next made of the general headquarters (praetorzum), of the line of the tribunes' tents, and 28 Polybius VI, 24; Vegetius II, 21; XI Marquardt, 71. See Sir John A Companion to Latin Studies. 29 Polybius VI, 24. 30 Dionysius says that the primus pilus commanded the 60 centuries Turpin de Crisse, in his Commentaires sur les Institutions Militaires de 333) 5 says that he commanded the legion, under the tribunes. Lipsius (II Romana, 80) refers to him as the leader of the legion. 31 Polybius VI, 27-32. See XI, Marquardt, n o , and similar sketches (with credit to Strewechius) based upon the description by Polybius.

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