NEW SPHERES OF ROMAN LAW

Whatever the truth of that, we have to accept on the basis of the evidence from Aphrodisias that, for several decades at least following the Constitutio Antoniniana, old privileges of the option of recourse to local laws and courts remained in force, at least for some cities of Asia Minor that had had them in the preceding period.

What this should have meant in the context of Asia Minor is that the activities of local courts and recourse to local laws, in spheres in which their operation was permitted in the High Empire, continued for some time beyond AD 212. We should not underestimate the significance of that fact for the legal landscape. On the eve of the Constitutio Antoniniana we have remarkably good evidence - insofar as evi­dence for anything in the legal history of Roman Asia Minor can be viewed as solid enough - that not only were the traditional Greek judicial institutions involving cooperation between different cities still operating in subject communities, but also that Greek cities could still establish new offences (at least with monetary penalties) for their citizens.³⁸ A remarkable and much discussed decree of the city of Mylasa concerning money-changers, dated to the joint reign of Septimius Severus, Cara­calla, and Geta (AD 209-11) in the immediate run-up to the Constitutio Antonini- ana, is a case in point.³⁹ Although admittedly the lion’s share of the fines intro­duced in it were supposed to go to the imperial fiscus, it established a whole range of local judicial procedures and punishments: in the case of slaves, who could be punished by 50 lashes and 6 months in prison, these punishments were corporal; in the case of free citizens, pecuniary, of up to 850 denarii.⁴⁰ While the scope of Mylasan local jurisdiction in this particular case does not extend beyond what is known about restrictions on municipal jurisdiction in the Latin West, the key differ­ence is that Mylasa was not copying the album of the provincial governor, but, even at that late date, developing their own law of delict.

This is arguably one of the areas where we might be looking for the impact of Caracalla’s pronouncement. While explicit evidence is unfortunately lacking, it is inherently probable that it marked a new step in the gradual restriction of the right of provincial communities to pass new legislation. The wording of Gordian’s reply to Epaphras, echoing perhaps Caracalla’s own statement, may be telling: he wants

edict is the Constitutio Antoniniana itself or a further imperial announcement, a point empha­sized recently by Ando 2012, 55 n. 5.

38 For the survival of the old Hellenistic institution of “foreign judges” (invited from another com­munity, in the Roman period probably via the proconsul, for resolution of disputes) into that period, note cash disbursements to the members ξενικου δrκαστηρrου at Stratonicea towards the end of the second century AD (I.Straton. I 229, bl. A, ll. 1-8); ξε∣[νοκ]ρrτη δε εκαστω at Perge, probably after the constitutio Antoniniana (I.Perge II 323, ll. 5-6). Evidence for the age of the Antonines is abundant, cf. Fournier 2010, 607-9 (to which add F.Xanthos VII 86, bl. H, l. 5; SEG LIV 1103). I hope to discuss their renewed prominence in the second-century texts elsewhere: our evidence for the period between Trajan and the early Severans is considerably more substantial than for any time since the early first century BC.

39 I.Mylasa I 605. English translations in Broughton 1938, 896-7, and Katsari 2011, 254-5. For the most recent discussions, Fournier 2010, 237-42, and from the economic point of view, Katsari 2011, 137-50, with further bibliography. Fournier 2010, 75, argues that Mylasa re­tained its “free city” status beyond the Augustan age, but at any rate it was a capital of an assize district and thus not exempt from governor’s jurisdiction.

40 For corporal punishments established for slaves by a local regulation, compare a decree of Hi- erapolis concerning punishment of slave shepherds for trespass (MAMA IV 297 and I.Denizli 15, with Brelaz 2005, 396-8; Thonemann 2011, 194; Kantor 2013, 158 n.

The language of Roman grants of autonomy always tended towards “ancestral laws”; the phrase is restrictive in itself, and in some cases we can point to more specific restrictions. Certain constraints on the local ability to legislate are known as early as the lex Antonia de Termessibus of 68 BC, which seems to restrict the right of the Termessians to grant their citizenship and put some vague limitation on their right to use their own laws.^[112] Two centuries later, the reply of Trajan to Pliny the Younger concerning establishment of an association (ερανος) at Amisus, con­trasted above with the situation at Ephesus at the end of the third century, con­tained a stress on the laws of Amisus as guaranteed by the treaty. The suggestion of A. H. M. Jones that Trajan’s reply meant that “no innovation was possible, and even old customs which had no express legal sanctions might be abrogated” argu­ably goes much too far: after all, Amisus is contrasted there with other communi­ties which “are restricted by our law.”^[113] Nonetheless, a saving clause similar to the statute about Termessus is quite probable in both the original Amisene treaty and in Trajan’s reconfirmation of it, which Pliny mentions, and even that would be very close to the way Gordian Ill’s confirmation of Aphrodisian privileges is phrased. It is a question worth asking whether Caracalla’s decision in AD 212 was a water­shed in that respect, or simply added a bit more weight to an existing Roman ten- dency.^[114]

A perplexing piece of evidence in Eunapius' Lives of the Sophists may be rele­vant. Innocentius of Sardis, grandfather of the philosopher Chrysanthios, was, ac­cording to him, entrusted by the emperors (either the tetrarchs or their immediate successors), with “lawgiving” (νομοθετικην).^[115] One possibility, as emphasized by Simon Corcoran, is that he was charged with preparing a law-code for the city of Sardis; if true, that would cast an interesting light on the local ability to legislate after AD 212, even though legislation by an imperial commissioner is obviously a special case.

Another possibility also needs consideration. To the extent to which the consti­tutio Antoniniana was an enabling mechanism in the continuing situation of legal pluralism, it could not only give access to Roman law to a much wider category of individuals, but also open up to Roman law (and not only Roman jurisdiction) spheres of law in which local custom hitherto dominated. In such a conservative sphere as the law of persons, the adoption of Roman law was (seemingly within the same generation) followed at Termessus by the appearance of a transliterated Ro­man legal term extraneus (an heir from outside the close circle of agnatic relatives) on the list of whose who could inherit burial rights and references to having the “right of three children,” permitting a release from male tutorship, by Termessian women.⁴⁷ This need not necessarily have implied that Termessian privileges were abolished: if there was any similarity between them and the Aphrodisian ones, a city could perhaps retain its jurisdiction in the causae pecuniariae while at the same time being forced to accept that its citizens could appeal to certain Roman rules insofar as their personal status was involved. That would have been an important development, as that would be precisely the sphere in which the resort to Roman law as a default option of the governor’s court, in the absence of accessible or uni­versally accepted local rules, would have been least likely.

Once again, however, a note of caution is needed when we consider evidence from different previously-privileged communities side by side. The island city of Chios in the early days of the Principate was one of those whose privileges were the most extensive.

coran 2000, 29 n. 29, with further references. For the privileged legal situation of Sardis in the earlier period, SEG LII 1175.

47 TAM III.i 481, l. 2; 541, l. 3; 608, l. 3: εκστρανηrος (or εξτρaνrος) in burial inscriptions; III.i 383, l. 1; 482, l. 1; 669, ll. 1-2; 705, l. 1; 714, ll. 1-2; SEG XLI 1270, l. 1: “emancipated by virtue of the ius trium liberorum” (αυτεξουσιος τεκνων δrκαrω) at Termessus (compare TAM V.ii 1126, Thyatira in Lydia). The former incidentally disproves the view that references to heredes extranei in classical texts (note above all Gaius, Inst. 2.152) should be suspected as interpolations, for which see Schulz 1951, 283. For the formula hoc monumentum exterum heredem non sequitur in Latin funerary inscriptions, Mierow 1934, 173-4. It is of interest that outside Asia Minor one of the places where attestations of the ius liberorum are abundant was the undoubtedly privileged Sparta (IG V.i 586, l. 3; 589, l. 5; 596, l. 4; 603, l. 2; 608, l. 2).

48 RDGE 70, ll.

arities.^[117] This case is later than the constitutio Antoniniana, and the very fact that confusion existed between the Roman concepts of plenum dominium and the usus fructus testifies to the still-imperfect grasp of Roman legal realities, which suggests that the demise of Chian judicial autonomy should be placed relatively recently before it.^[118]

While it is not self-evident that the testator was a Chian or even lived on Chios (a Greek from elsewhere in the province could be equally unfamiliar with Latin and with Roman legal terminology), in the first century AD Chian jurisdiction, unlike Aphrodisian, would have covered them.^[119] Towards the end of the Severan period, however, Aphrodisias seems to have been getting a better deal from the emperors than Chios was. The reasons for that are impossible to establish: Aphrodisias could have been more assertive in asking for the re-confirmation of its rights, Chios could have taken the wrong side in the Severan civil wars. What is important for our pre­sent purpose is that the legal situation of previously-privileged communities after the constitutio Antoniniana could be wildly different: a more privileged one could accept Roman inheritance law, while the less privileged could still retain its juris­diction over the causae pecuniariae. This inevitably gets us back to the question of whether Caracalla’s pronouncement was the main factor in the demise of legal plu­ralism of the early Empire. If Amisus was already restricted in its autonomy in AD 110 and Sardis was still changing its local legislation under the tetrarchs, while the situation of the ciuitates stipendiariae remains entirely unclear, other factors may have contributed more to the legal situation there than a universal grant of citizen­ship, which would touch all of these communities.

5.