RESPUBLICA E PRINCEPS: THE QUESTION OF TIME

4.1. Amnesty, pardon or imprescriptibility

In the speech of Pupienus, there is another element that merits our attention: it is the promise of a pardon (panton amnistia) for all the soldiers who had backed Maximi­nus Thrax and the calming of the fears provoked by the end of the civil war.

This speech falls within a Greek literary tradition that has been thoroughly ana­lyzed by Nicole Loraux. From one text to another, the same words are repeated (the ideas of eunoia, eucosmia, philia), as well as the staging: on the one hand, the of­ficial discourse, in the mouth of Pupienus, which imposes an official meaning and an official history; on the other the experience of the actors (here, the soldiers, who are grumbling and are not ready to forget their former divisions). It is possible, of course, that Herodian merely alludes to classic works of literature. However, the distant references were much more than literary. The vocabulary refers once again to a civic ideology, which places the community of citizens above any such divi­sions, and thus privileges concord over repression. In the Caracallan moment, the question is topical: in what manner should political opponents who had been de­feated be treated? Since the death of Commodus, each imperial accession had brought its share of massacres and attempts at usurpation. To this problem, which clearly concerns imperial legitimacy, but also the relationships between the citizens and the res publica, as well as the place of conflict in the public sphere, the Severans for their part brought a clear response: the political adversary is an enemy of the res publica. But the forms of repression exercised upon such individuals varied, de­pending on whether he was one of the leaders of the opposition or merely one of their partisans, if it was an unarmed plot, and also depending on the size of the re­bellion.^[199]

4.2.

Under the Empire, breaches to the security of the State were principally offenses of the lexIulia de maiestate, commencing from the reign of Augustus.^[200] Lese-majesty, maiestas laesa, concerned acts carried out adversus populum Romanum vel adver­sus securitatem eius or adversus rem publicam (Dig. 48.4.1 (Ulpian)), and finally adversus principem (Dig. 48.4.11 (Ulpian)). These crimes might be carried out in foreign affairs (killing hostages, acts of treason in favor of the enemies of Rome), or domestically (disturbances of public order, bad management of public affairs, armed revolt). In cases of rebellion, the law targeted the leaders of the rebellions or any magistrates involved.^[201] At the beginning of their reign, the majority of the em­perors probably announced the abolition of the charges of maiestas and swore not to put to death a senator nor confiscate his property without a trial^[202] (Claudius, Ti­tus, Nerva or Trajan, then almost all the emperors up to and including Septimius Severus^[203]) but the reality was often different. Furthermore, other legal measures served the same ends,^[204] because there existed for the emperors many other ways of punishing crimes of state, which themselves did not fail to provoke resistance.

In the speech that Cassius Dio attributes to him in book 52 of the Roman His­tory, Maecenas, the friend of Augustus, emphasizes just the point that interests us: only the Senate should deal with these crimes, because “the affairs of the commu­nity must be managed by the community” (τα τε γaρ κοrνα κοiνως διοικεiσθαι δεr). If Cassius Dio, who was a member of the circle of the Severnus, reflected his time, as Fergus Millar suggests,^[205] then we must see in this remark the echo of a true debate concerning crimes of state and the monopolizing of these trials and of public affairs more generally by the emperors.^[206]

Maecenas’ discourse adds, morever, an important clarification that refers to the Severans' own practice: we must make a distinction between the leader of an un­armed conspiracy (τις αοπλος ων επιβουλευει) and “he who puts himself at the head of an army.”^[207] In the first case, the trial must take place before a senatorial tribunal; in the second case, the procedure can be more expeditious: “we must consider sepa­rately the case in which a man rebels by putting himself at the head of an army, be­cause a man of this type should never be brought before the courts, but should be punished in the chance of war” (ουδε γαρ δικaζεσθαι τoν τοιουντoν που προσηκεν, aλλ^, εν πολεμiου μοiρa κολaζεσθαι) (52.31.10) - in other words, summarily out­lawed.

103 The import of the designation of someone as hostis publicus is very well documented. See, for example, SHA, Sev. 10.3 and Maxim. 16.4-6: after having judged the two Maximini to be pub­lic enemies in 238, the Senate announced that “he who kills them will earn a reward.” Earlier, “[the Senate] sent letters to all the provinces, asking their aid for the common safety and liberty, and all of them gave heed” (15.3; trans. Magie). The execution of the partisans of the two Maximini followed.

104 Confiscation is linked to the loss of citizenship (D.48.20.7.5). The property of the convicted became ownerless and was therefore appropriated by the fisc. Nothing better illustrates the link between citizenship and property, but also the relationship of the treason laws to the problem of patrimony. See Ulpian D.48.22.14: deportation deprives a person at the same time of citizen­ship and of property; see also the Constitution of Pertinax, followed by the Severans (C.6.4.1): the bona of an individual considered as hostis publicus comes back to fiscus.

105 Whence the ban on mourning imposed on families of the convicted, according to the second- century jurist Neratius (D.3.2.11.3).

106 Deportation, which brings about the loss of citizenship and the confiscation of property, was most frequently the fate of those convicted of lese-majesty, but the death penalty could also be applied, as was the case for those convicted at the end of the lex Cornelia de sicariis et venefi­ciis (D.48.8.3-5). A passage from the life of Avidius Cassius in the Historia Augusta suggests that the sentence depended on the emperor (Av. Cass. 8.7-8; on this episode, see Schettino 1997). The status of children of the convicted also depended on the imperial will: some were sentenced to death (this was the case for the children of Avidius Cassius under Commodus; see Grosso 1965, 130-135), but they were for the most part deported and stripped of their property (Sententiae Pauli 9.2-4). We should note that under the Severans, there were differences be­tween the jurists on this last point. Paul wrote a work de portionibus quae liberis damnatorum conceduntur (D.48.20.7), to explain that the children of the convicted could have the benefit of a portion of the confiscated property, because of natural law (ratio naturalis) and equity (ae­quum est), and in support of this position, he cited a rescript of Hadrian (§ 3) that was also known to the Historia Augusta (Had. 18.3; Marci 26.11), according to which one twelth of the fortune was supposed to be left to the children. According to the Gnomon of the Idios Logos, the children of those sentenced to capital punishment, in other words, deportees especially, would have had the right to a tenth (decima), following from a judgment of Aντωνrνος Καrσαρ o κυριος. Callistratus' position seems much harsher (D.48.20.1): he makes no exception to the confiscation except for children conceived before and born after the sentence. In the fourth century, the emperors never stopped legislating on this question, emphasizing on the one hand the right of the children to a portion of their parents' property in case of judiciary sentence of confiscation (CTh.

4.3. The reinforcement of the crime of perduellio

The crimen maiestatis had always been marked by an exceptional character, even one of anomaly. For example, Augustus allowed the possibility of torturing the slaves of the indicted, whereas normally a slave could not testify against his master. By the same token, in trails for maiestas, the torture of free persons became con­ceivable, without respect for social status or sex.^[208] The Severans introduced two new exceptions: the right to accuse was extended to persons of legal statuses that had theretofore been excluded, including, for example, women and soldiers^[209]; and, in particular, the prosecution of certain crimes relating to maiestas were placed beyond the possibility of legal abrogation.

A constitution of Severus Alexander (C. 9.8.6.1) reveals the genealogy of this innovation^[210]:

Paulus de publicis iudiciis. Meminisse oportebit si quid contra maiestatem imperatoris com­missum dicatur, etiam post mortem rei id crimen instaurari solere, posteaquam divus Marcus Depitiani utpote senatoris, qui Cassiani furoris socius fuerat, bona post mortem fisco vindi­cari iussit et nostro tempore multis heredibus ablata sunt. In hoc item crimine, quod ad lae­sam maiestatem imperatoris pertinent, etiam in caput domini servos torqueri. Marcianus libro primo de publicis iudiciis titulo ad legem Iuliam maiestatis.

Paul, Concerning Public Trials: “It should be remembered that if anything is said to have been committed against the greaterness of the emperor, it is customary for the charge to be pros­ecuted even after the death of the accused, ever since the Divine Marcus ordered the property of the Senator Depitianus, who had been an ally of the madness of Cassianus, to be surrendered to the fisc after this death, and in our day goods have been removed from many years [on this same principle]. On this same charge, too, which pertains to harm done to the greaterness of the emperor, even slaves are tortured in proceedings against their master.” Marcian, from the first book of his work Concerning Public Trials, under the heading “On the Julian Treason Law” [the concerning �greaterness’]: “After the constitution of the Divine Marcus, we began to follow this rule, that this charge can be laid even after the death of the culprits, so that, a dead person being convicted, his memory might be condemned and his goods been taken from his heirs: thus from the very moment when someone conceived such a most wicked plan, from that very moment in some fashion he is punished in his mind. The Divine Severus and Antoni­nus rule thus, too: from the moment that someone plots such a crime, he can neither alienate property nor manumit anyone, nor can any debt to him be paid, as the great Antoninus rule in a rescript. On this charge, slaves are tortured to obtain evidence against their master, which is to say, in cases of treason (maiestas). And if someone should die and if the dead person were accused in a case of treason (maiestas), his goods should be set aside because of the uncertainty regarding the identity of his successor, as Severus and Antoninus write in a letter to officials of the treasury.

The text allows us to establish that under the Severans, the imprescriptibility of the crime of maiestas entered into Roman law. Paul and Marcian, jurists who lived dur­ing the reigns of Septimius Severus and Caracalla, attributed the innovation to a one-time decision of Marcus Aurelius, but Marcian, on the basis of two rescripts, testifies to the fact that Septimius Severus and Caracalla generalized this measure and Paul confirms this as regards his own time.

The continuation of a trial after the death of the accused was already a practice in such trials from the start of the principate, especially in the case of the defen­dant’s suicide, which was thought to have been performed in the hope of annulling the accusation and ending the proceedings.^[211] Thereafter, it was a question of some­thing very different: it became legal to bring a legal action against a dead person (convicto morte), if it was a matter of an accusation of de maiestate.^[212] Upon con­viction, the heirs of the deceased could be stripped of their property, and the Sever- ans did not deprive themselves of these new sources of revenue, as Paul emphasizes in this text: et nostro tempore multis heredibus ablata sunt. These proceedings against the dead infringed a fundamental principal of Roman law, according to which the death of the accused wiped away a crime.^[213] The disallowance of any abrogation in prosecution did not, however, pertain to all the crimes of majesty but only to the crime of perduellio (Dig. 48.4.11):

Is, qui in reatu decedit, integri status decedit: extinguitur enim crimen mortalitate. Nisi forte quis maiestatis reus fuit: nam hoc crimine nisi a successoribus purgetur, hereditas fisco vin­dicatur. Plane non quisque legis Iuliae maiestatis reus est, in eadem condicione est, sed qui perduellionis reus est, hostili animo adversus rem publicam vel principem animatus: ceterum si quis ex alia causa legis Iuliae maiestatis reus sit, morte crimine liberatur.

He who dies while under accusation dies with his status unimpaired; for the charge is extin­guished by death. Unless perchance he has been charged with treason (maiestas); for with this offense his inheritance is claimed by the imperial treasury, unless he is cleared by his succes­sors. Clearly, not everyone charged with treason under the Julian law is on the same footing, but he who is charged with perduellio, animated by a hostile spirit against the state or the emperor [is liable even after death]; he who is charged under the Julian treason law on other grounds is cleared of the charge on his death.^[214]

The text is clear: it is above all hostility with regard to the res publica or to the princeps that defines perduellio. This very ancient crime, assimilated to maiestas in the course of the Principate, can thus be seen to be given a new importance.^[215] If the emperors declared that they were abandoning accusations de maiestate, they could thus always have recourse to the accusation of perduellio. According to Lucia Fanizza,^[216] it is to Papinian that we must trace the methodical working-out of this innovation. We cannot, he writes, inherit from someone convicted of perduellio (Dig. 39.5.31.4). Ulpian may thus be seen to be merely following already estab­lished Severan doctrine, whose utility to those in power was considerable, since conviction led to the confiscation of the convicted person’s property.^[217]

The nature of perduellio as it was thus defined and rendered imprescriptible remains to be understood, as well as the reasons for this innovation. The definition of perduellio and its relationship to maiestas have caused a great deal of ink to flow. It is impossible to deal with the entire dossier, but we would like to insist on certain aspects of the question. Among the texts of Digest that make allusion to it,^[218] a pas­sage from Ulpian is particularly important (Dig. 3.2.11.3):

non solent autem lugeri, ut Neratius dicit, hostes vel perduellionis damnati, nec suspendiosi nec qui manus si intulerunt non taedio vitae, sed mala conscientia.

As Neratius says, it is not customary to mourn enemies of the state, men found guilty of trea­son, those who have hanged themselves, or men who have committed suicide not out of weari­ness of life but through a guilty conscience.

Neratius lived at the turn of the first and second century and thus reports on a tradition that was ancient compared to the era that interests us. We notice first of all the distinc­tion between hostes and perduellionis damnati, between political conviction and legal conviction, that Maecenas’ speech allowed us to see. But we can go further. The affin­ity between hostis and perduellis, clearly established by the sources, leaves us to sup­pose that perduellio concerns those who took up arms against the res publica (the partisans of the hostes publici, for example). On the other hand, the different exam­ples considered in the extract have a point in common: between the hostes publici, sentenced to death by a resolution of the senate, and those who killed themselves out of a guilty conscience, those convicted of perduellio naturally find their place if they are punished by the death penalty, as during the Republican era. That, it seems, is one of the essential aspects of the perduellio, while those convicted de maiestate were often punished by deportation. The only innovation introduced in the third century was that the crime of perduellio became imprescriptible: a dead person could be brought before the courts and condemned to death. In a certain way, imprescriptibility brings the person convicted of perduellio closer to the hostis publicus, since in both cases death is not an obstacle to the procedure.^[219] But in the case of perduellio, this disallowance of legal intervention in the procedure relates to legal space, and it con­cerns public action and the application of the sentence after the conviction.^[220]

What was the logic of this innovation, which will go on to exercise great influ­ence in the modern era,^[221] and more generally of this emphasis placed on perduel­lio? There is first of all undeniable intensification in the repression of political ad­versaries and a change in the relationship of the prince to the res publica.^[222] But another intention could have inspired this major shift on the part of the Severan jurists: keeping the punishment of political opponents under the cover of law. Inten­sification of penal action with regard to political opponents and reinforcement of the judiciary space go hand in hand and are in tension. The sources show other ex­amples of this tension between political practices and legality, as the evidence in the Opiniones shows as well.

4.4. The Evidence in the Opiniones

In a study dealing with Ulpian, Vincenzo Marotta analyzed the distance between the aforementioned texts and this passage from the Opiniones (Dig. 49.15.21.1):

In civilibus dissensionibus quamvis saepe per eas res publica laedatur, non tamen in exitium rei publicae contenditur: qui in alterutras partes discedent, vice hostium non sunt eorum, inter quos iura captivitatium aut postliminiorum fuerint. Et ideo captos et venumdatos posteaque manu­missos placuit supervacuo repetere a principe ingenuitatem, quam nulla captivitate amiserant.

In civil dissensions, although the res publica is often wounded by them, the contest is not fought for the destruction of the res publica; and those who go off to join one or theother side are not counted as true enemies among whom the rights of captivity and postliminium apply. Accordingly, it has been agreed that it quite pointless for persons captured, sold, and thereafter manumitted, to petition the emperor for the restoration of the freeborn status, since they had not lost it by any [true] captivity.

The Opiniones are probably not by Ulpian, as was believed for a long time. Never­theless, according to Bernardo Santaluccia and the later work of Tony Honore, it clearly reflects problems of the beginning of the third century.^[223] The author of this text is very clear: those who oppose each other in a political conflict cannot be lik­ened to external enemies, and thus have never lost their liberty. If they have been captured by one of the two parties, even sold and then freed, they do not need to ask the prince for their restitutio natalis in order to get their ingenuitas, their free-born status back, because strictly speaking there was no phase of servitude - and hence of social death - as there was assumed to be for those captured by a foreign enemy. This passage thus clearly poses the problem of the fate of political prisoners after the victory of one party to a civil war.

The text refers a distinction of Roman “international” law: hostes are only those upon whom the Roman people has publicly (publice) declared war (Dig. 49.15.24 (Ulpian)). Other “enemies” are only brigands, latrones.^[224] The distinction is an­cient^[225] but the frequency with which it is cited in the Severan era is absolutely re­markable: in the jurists, the historians, and even in the epigraphy.^[226] The Historia Augusta, in the Life of Severus, echoes it, thus repeating a theme very probably linked to Severan propaganda: the emperor is latronum ubique hostis, “the enemy of brigands everywhere” (18.5). The latter were thus not protected by the law that allowed the captives of enemies to recover their previous status if they came back onto Roman territory (in virtue of the iuspostliminii). In fact, they had never legally lost their liberty, unlike those captured by foreign enemies.^[227]

Behind the text of the Opiniones is expressed all the violence of the political conflicts that could lead to death, to conviction, but also to illegal servitude. The illegal sale of the free man is indeed a fundamental theme of private law, as of in­ternational law,^[228] and it is also a political problem, as a constitution of Constantine included in the Theodosian Code reveals (CTh. 5.8.1; trans. Pharr):

universi devotionis studio contendant si quos ingenuis natalibus procreatos sub tyranno inge­nuitatem amisisse aut propria contenti conscientia aut aliorum indiciis recognoscunt, natalibus suis restituere, nec expectata iudicis interpellatione.

All persons, whether they rely on their own knowledge or on the disclosures of others, shall strive with loyal zeal to restore to their birthrights any persons whom they recognize as having been born in the status of freedom but as having lost their freebord status under the tyrant, and they shall not away the application to a judge.

In fact, the liberation of those who had been enslaved by the tyrant (to wit, the en­emy of Constantine) will be one of the themes of Constantine’s propaganda. But the differences between the two texts are truly illuminating.

In the Opiniones, the civil conflict is presented in a non-partisan way: qui in alterutras partes discedent, as a confrontation between two equal parties (thus ad­hering to the Sallustian or Caesarian version of civil war), and not, as in the text of Constantine, as an opposition between the res publica and the usurper or tyrant^[229] (we find elsewhere the term seditionaries^[230]). In this perspective, the text of the Opiniones is situated far from Severan ideology regarding conspiracy, as also from Constantinian terminology. Much more, it is affirmed therein that, if there has been lese-majesty (the res publica is laesa), the res publica is not destroyed.

According to Vincenzo Marotta, we detect in this passage the inspiration of Cicero, from the orations against Catiline, or those against Verres, or the speech on behalf of Ligarius. At the end of the Republic, as at the beginning of the third cen­tury of our era, reflection on the relationship between conflicts and the res publica leads to a distinction also drawn by Plato and perhaps inspired by him, between stasis (the dissenssiones civiles) and the polemos (the all-out struggle between two parties), between those who set their sights on the destruction of the city (the odium hostile, that of the exterior enemies to the city, which is the case of sedition) and those who aim for its reform, in other words, members of factions. And Marotta notes that Cicero, like Plato, thinks that the stasis should lead to concord, and that the simple dissensio civilis must not lead to the destruction of an opponent, because there is a community of interest between the parties.^[231]

However, the comparison with Cicero seems flimsy to me for two reasons: if the text of the Opiniones starts with an evocation of political conflict, it ends on a mention of civil war (the political opponents’ reduction to slavery). In fact, where does the conflict end and the war begin? And who determines the boundary between them? Even in Cicero, this boundary is not clear: some texts call for concord after conflict; others, such as de officiis (1.17.57) and de republica, are true pleas in favor of the so-called senatus consultum ultimum, a suspension of legality to deal with a crisis.^[232] Moreover, the Cicero who calls for drastic action falls much more within senatorial norms of the end of the Republic, in which persons sought to exclude, or, we might say, excommunicate their political enemies, to outlaw them, to make them lose their property and their bodies. Rarer were those who stood with Cicero when he lamented that the res publica risked disappearing under siege by an enemy faction, the Cicero who had a substantial vision of public space as one and indi- visible.^[233] It is the more violent practice inherited from the Republic that is recalled by the policy of exterminating political enemies under the Severans and the struggle of Constantine against the tyrant Maxentius. From the Republic to the Principate, the res publica had been constantly troubled by this tension between this totalizing vision of the public and the recognition of the place of conflict in the political space that we especially find in Sallust or Caesar. The author of the Opiniones undeniably follows the latter current, like Tertullian when he expressed outraged that the Chris­tians were accused of being public enemies: “they deprive us as Christians of the very name of Romans (they exclude us from citizenship in accusing us of being hostes and of causing a detrimentum to the city), whereas the detrimentum was to exclude citizens.”^[234] His conception of citizenship and the space for dissent in the public sphere is very foreign to the policy of the Severans.

It is difficult in these conditions to adhere to Vincenzo Marotta’s interpretation, which sees in the text of the Opiniones an echo of Severan propaganda and of their policy on indulgentia, leniency.^[235] It is true that the indulgentia principis was the only means by which the outlawed or deported might obtain a right of return.^[236] Decrees of amnesty (or abolitio) were not applicable to them.^[237] Before the Sever- ans, for example, Pertinax had pardoned political exiles (SHA, Pert. 6.8): “he re­called from exile those who had been banished for the crime of maiestas (deportati crimine maiestate) and rehabilitated the memory of those who had been put to death.” Severus sometimes acted in similar fashion: with regard to Plautianus, who was first declared hostis then rehabilitated (gratiam reddere), before being sus­pected anew; with regard to the Palestinians, partisans of Niger (SHA, Sev. 14.6): poenam remisit. But by and large, the sources emphasize Severus’ cruelty with re­gard to his political adversaries (SHA, Sev. 12-14), and also Caracalla’s with regard to the friends of Geta and to “a host of other people put to death without a trial” (Dio 77. 6).¹³⁷ Finally, we must add that the text does not focus on indulgentia as such, but rather on the pointlessness of of asking for indulgentia. It poses the fundamental question not of the clemency of the prince, but of the legal status of prisoners at the end of civil wars and of the illegality of their being reduced to slavery.

The question must have been truly pertinent if we consider the number of texts from this period that recall the necessary distinction between hostes publici and external enemies, and between prisoners taken in civil war and captives from for­eign ones. To these records must also be added the edicts of Caracalla contained in Giessen papyrus 40. In our view, among the disgraced persons excluded from the universal grant of citizenship were numbered the deported, among whom were po­litical adversaries of the emperor.¹³⁸ This is what we would like to show in conclu­sion.

4.5. The Evidence from the Edict of Caracalla: the Case of the Dediticii

As we have seen, among those convicted of maiestas, some were sentenced to death, others to deportation, and all the sources agree on the fact that, unlike relega­tion to a lower status, deportation (which in the past was called interdiction from

return to their country, but also their right to circulate generally. The edict contained in column II of the P.Giess. 40, which was promulgated in Rome in July 212 (and posted in Alexandria in February 213, see Oliver 1989, nos. 260 and 261A) is an edict of amnesty that concerns the return of fugitives accused of anachoresis (Coriat 1997, 479 ff.) and of those temporary penal exiles “who had not completed their sentence.” Amnesty removes all infamy from them, and offers them a restitutio in integrum, in other words, a return to their previous state.

137 The trials took place before the imperial tribunal (and not before the Senate): see for example Dio 74.5.8-9, the trial of the senators who were partisans of Niger, followed by the confiscation of property and the deportation to an island. On this subject, see Alfoldy 1970, Jacques 1992.

138 The word dediticii is not clearly established in the text and has been the object of an accepted reconstruction of the word in the papyrus. Marotta 2009, 113, who follows Mazzarino 1986, 2:612, reconstructs [ad]deitikion (and not dedeitikion) (the version that Oliver adheres to, 1989, 504): the additicia, he says, are the “regolamenti addizionali e supplemental! che con- cedevano specifiche esenzioni dei iura (dikaia) ricordati alla linea 7.” The emperor thus retains fully the entitlements accorded to different communities, without any effect on the separate advantages conceded to individuals and collectivities. This confirms the absence of any modi­fication of the fiscal status of the poleis and ethne. But if we thus reconstruct the word, is there not a redundancy in relation to the phrase salvo iure? It is however interesting to note that when Justinian abolished the status of the dediticii, he referred to Caracalla in particular. water and fire) entailed the loss of citizenship.^[238] But some questions remain open, because the sources are not clear about the fate of these deportees under the empire. In short, what became of those who lost their citizenship but kept their liberty? And, more generally, what became of those who were defeated by arms in the civil wars but did not receive pardon?

The legal historian Eduardo Volterra, for whom there could no other liberty than civic liberty - following the adage of the Republican period, libertas est civitas - maintained that these deportees must have become peregrini, aliens, which is to say, aliens in respect to Rome but citizens of some locality, and this has been the most frequently accepted doctrine. Since Mommsen, however, another interpreta­tion has been suggested but rarely developed, according to which deportees were peregrini dediticii under the Empire, in other words, free men not belonging to any political community, like the Junian Latins were thought to be. This suggestion, which must remain fragile insofar as no text defines deportees as dediticii,^[239] is based on three principal arguments, which have been summarized by M. Hum­bert^[240]: first, according to the legal sources, a deportee cannot write a will either as a Roman citizen or as a peregrinus-citizen-of-some-other-locality. He thus has a status inferior to that of a normal peregrinus without, however, being a slave. Sec­ond, the deportee is defined by a text of the Regulae of Pseudo-Ulpian^[241] as nullius certae civitatis civis, a citizen of no defined polity (Reg. XX.14) or elsewhere as “apolides,”^[242] which can be translated “an alien without local ties.” Third, it is also stated that the legal relations of such a person fall not within the jurisdiction of civil law but within the ius gentium.^[243] I would add to these deported dediticii a group that has not been taken into account: the political opponents who took up arms against the res publica and the princeps. For that we must return to the notion of dediticii.

There exist two kinds of dediticii attested by the sources. The first, and it is the original meaning, are the enemies who have been defeated by a Roman general and who surrendered to him unconditionally, in accordance with the ritual of deditio: they handed over to him all their persons, property, territory, and laws, and swore total allegiance to Rome in such a way that they recognized that they had lost eve­rything that formerly made up their identity. Rome however reserved the right to restore to them all of their property and their status, except for their freedom of action in foreign affairs, and to incorporate them as “subjects” of Rome, which is to say, subject to the majesty of Rome. In this way, they passed from the status of de­feated to that of peregrini.¹⁴⁵ It seems thus that the status of dediticii, taken in this sense, was not destined to endure. And we can ask ourselves what dediticii of this kind could still exist in the time of Caracalla? Insomuch as one of the characteristics of the dediticii is that they are not attached to any particular city, hypotheses have been generated based on the fact that select populations, most notably Egyptians of the chora, the countryside, were not organized into cities. But this remains a hy­pothesis; what is more, the number of Egyptians concerned at the time of Caracalla would be very small, since Septimius Severus had granted municipal status to the nomes.

Of the same status as these “foreign dediticii,” to use Gaius’ expression, are those who after the lex Aelia Sentia were counted the shamefully emancipated, those who, as slaves, “ha[d] been put in chains by their masters as a penalty, or else were subjected to branding, or who, suspected of an infraction, ha[d] been tortured and recognized as guilty, or who have been given over to combat with arms or against beasts, and have been consigned to a school for gladiators or to prison” (Gaius Instit. 1.13). Emancipated slaves of this sort held only a pessima libertas (ibid, 1.26), a lowest form of liberty and were marked by infamy. They are thus at the same time legally disqualified and ineligible for citizenship.¹⁴⁶ Hence, people whose very bodies were marked by infamy were excluded from Roman citizenship

deportation, because marriage falls within the ius gentium (D.48.20.5: the marriage of a de­ported woman is not dissolved because the woman remains free; see also 48.19.17).

145 On deditio, we have different accounts: literary (for example Livy 37.1.6 and 49; 25.23.5); Granius Licinianus 35.34, p. 16.15 Criniti (about the deditio of the Samnites in 88 BC: dediti­ciis omnibus civitas data est); and epigraphic: the Tabula Alcantarensis, which preserves the deditio of a people of Hispania in 104 BCE, the redditio agrorum et legum by the Roman gen­eral Lucius Caesius (AE 1986, 304): cf. Lopez Meiera et al. 1984; Norr 1989; Freyburger 1986; idem 2005. For Mommsen, Rome in its beginnings gave citizenship to the dediticii at the same time as it gave them back their property and their institutions but afterward it did not regularize their status in spite of an autonomy that was tolerated (1887, 3:133, 141, 716 ff., 1160-1161). This theory has not received unanimous support: see the critique in Jones 1936, 229-230.

146 Epitome Gai 1.1.3: dediticii sunt qui post admissa crimina suppliciis subditi et publice pro criminibus caesi sunt, aut in quorum facie vel corpore quacumque indicia aut igne aut ferro impressa sunt, et ita impressa sun tut deleri non possint. in the Edict of Caracalla, concerned as it was with increasing the majesty of the gods.^[244]

It seems to me that political adversaries tried on a charge of maiestas could have been sorted into one of these two categories, the defeated or the dishonorable. As certain cities lost their rank or even their status as a city for having supported a defeated political opponent,^[245] a large number of political adversaries, if they were not put to death, lost their civic rights at the end of a trial. It is a group particularly relevant at the time of the edict of 212, a period marked by the idea of conspiracy against the emperor.

Let us come back to the definitions of the dediticii. First, that of Gaius, Insti­tutes 1.14: vocantur peregrini dediticii qui quondam adversus populum Romanum armis susceptis pugnaverunt, deinde victi se dediderunt, “They are called peregrini dediticii who once took up arms against the Roman people and fought, then, having been conquered, surrendered themselves.”^[246] Taking up arms against the Roman people, is this not precisely the case of those who in civil wars fought against the Roman people: qui adversus populum Romanum committantur; et qui contra rem- publica, arma ferant (Dig. 48.4.1.1)? The deditio, the formal surrender, was not a practice reserved for exterior enemies: on the contrary, the literary sources offer numerous examples of deditio of political adversaries.^[247] The word is clearly also applied to rebels from the Roman army, as Walldurn’s inscription shows, which makes allusion to the dediticii Alexandriani, and of which Maxime Lemosse had suggested that they could be “soldiers: Romans, barbarians, rebels, and the defeated.”^[248].

Thus, just as hostis took on the meaning of internal enemy, so dediticii could be applied to the “defeated internal enemies,”^[249] marked by infamy for having re­belled. Did not Caracalla, who was called Geticus, not triumph over these enemies of the interior? The union that Caracalla called for could be that of all inhabitants, henceforth citizens, as against this type of people, classified among the dishonora­ble, and who, as deportees, could not be restored to their rights without an imperial pardon. This pardon was refused them in an edict contained in P. Giss. 40, while the emperor offered an amnesty, with a return to the status quo ante, for all the others convicted by common law who had served their sentence, a measure on which the emperor insisted in a very particular manner^[250] and of which we find an echo in the Digest (50.2.3.1), where it is written that by an edict, Caracalla allowed those who had served their time in exile or in exclusion of a function to return to their former status and take up their function again.

In all these measures that concern the treatment of political adversaries, there is the idea of continuity between internal war and external war. This continuity is al­ready announced in the notion of maiestas, in other words, in the notion of power: power is indeed not differentiated; it is exerted with regard to all enemies and mixes them up indiscriminately. But with imprescriptibility, the struggle falls within the framework of time; after a fashion, it institutionalizes itself, and institutionalizes war against the enemy. This struggle against all hostes publici, and thus the idea of union that resulted from it were truly Severan ideas, as Marotta has shown, and we find them in the edict of Caracalla, as in the imperial propaganda that followed upon the accession of Septimius Severus.^[251] Tertullian’s Apologeticus, written around the year 197, repeats it (Apol. 2.8; trans. Glover): in reos maiestatis etpublicos hostes omnis homo miles est; ad socios, ad conscios usque inquisitio extenditur, “Against those guilty of treason, against public enemies, every man is a soldier; inquiry is extended to confederates, to accessories.” But, Tertullian added, we, the Christians, we are not hostes publici!

5.