CHAPTER VIII THE CITIZEN AND THE STATE

This final chapter begins at a tangent, with an account of the civil wrong called by the Romans iniuria. The real reason is that, though important, it does not fit conveniently anywhere else; however, it does touch our main theme tangentially, and will in due time lead us to it.

There is no place here to go into the early history of the Roman law of iniuria, for its important extensions had already taken place by the beginning of our period.¹ The Twelve Tables had laid down penalties in money for physical assault on free men and slaves, and they contained the general clause, â€?If he shall have done an iniuria let there be a penalty of twenty-five’ (i.e. asses), a sum which went down in value until it became derisory—hence the famous anecdote copied from Labeo by Aulus Gellius:²

�There was a certain L. Veratius, a terrible nuisance and fear­fully irresponsible. He used to take delight in slapping the faces of free men with the palm of his hand, and he went around followed by a servant with a purse of asses, and when he had slapped a man he would order twenty-five asses to be paid out on the spot. Therefore, says Labeo, the praetors afterwards decided that this law should be abolished and abandoned, and laid down in their edict that they would give “recoverers” for estimating injury.’

It was indeed the praetors, exercising ius honorarium, who built a whole law of redress for personal affront out of these unpromising materials.

The Twelve Tables treated as criminal not only the casting of spells on people by incantations but also occentare (which was to raise a hostile demonstration in the streets against someone),⁶ thus blocking the only way open to the plebs in early days of bringing to notice and branding with public shame a wickedness or unfairness of one of the great men. This also was taken over into the civil law of iniuria by the praetor’s edict; it receives careful definition in the Digest.⁷ A court de iniuriis was amongst the standing jury courts established by Sulla; technically it was not a criminal court, according to Paulus:⁸

Tor an action for iniuria under the lex Cornelia a representative can be put in (i.e.

Its scope is plainly stated in the Digest:⁹ assault and battery, and forcible entry upon private premises. A recent attempt¹⁰ to prove that it covered defamation as well is unconvincing; it was in line simply with much other legislation â€?concerning armed violence’ in those troubled decades. But at some uncertain date a senatusconsultum did add to it libel and slander, whether by name or not, and included under this head persons who sold and propagated defamatory writings.¹¹ What was the date of this senatusconsultum? It is generally held that it was passed under the influence of the emperor Augustus, late in his principate, and is referred to by Suetonius:¹²

�Even libels about him distributed in the senate-house failed to disturb him—though he took great trouble to refute them—and he did not even investigate their authorship. All he did was to propose that in future there should be prosecution of anyone who put out flysheets or lampoons to the defamation of people under pseudonyms.’

Though admittedly there are doubts and difficulties this is prob­ably right;¹³ if so, then from Augustus onwards (but not in Cicero’s day) defamation, like other iniuriae, could be proceeded against either for civil damages or before the jury courts. As for seditious Ebel, the perennial problem about which is that it may be just political satire regarded with hostile eyes, a famous and difficult passage of Tacitus¹⁴ implies that Augustus on one occasion at least treated it as falling within the scope of the criminal law of treason, maiestas, which had hitherto, says Tacitus, been confined to deeds, not words (it had in fact been concerned with the punishment of disobedience or incompetence on the part of officers of state). This too is probably right;¹⁵ words had been immune—immune, that is, from prosecution under the statutes of maiestas.

The mark left by all this on literature should be considered. Lucilius in the good old days had â€?got away with murder’; apparently like many satirists he did not much care for his own medicine, for we hear of him as plaintiffin a suit against an actor for defaming him on the stage. He lost it.¹⁶ In the late Republic the angry young men like Catullus flung their insults about with deliberate defiance. But the famous satirists of the classical age did not attack contemporaries. â€?No Roman writer, playwright or satirist either enjoyed or thought himself entitled to exercise the right of free speech. If he attacked or defamed people, he did so at his peril.’¹? Horace made a joke out of the situation, bringing in good old Trebatius (once the butt of Cicero’s avuncular legal quips, now the â€?embodiment of the law’) to keep him on the straight and narrow path:¹⁸

�Just take heed of warnings, lest ignorance of the inviolable laws should cause you trouble; if a man makes wicked verses against another the law and the courts await him.’

�Think before you enter the fray’, says Juvenal’s imaginary inter­locutor:^

â€?It’s too late to repent of the battle once you’ve got your helmet on.’ â€?Very well, I’ll chance what I’m allowed to say—about the fellows already in their tombs along the Via Flatninia and the Via Latina.⁹

Nor did Tacitus, for all his contentment with the regime under which he wrote, when you could �say what you thought’, openly defame any contemporary.

It is customary to say—in rather modem language—that �truth was a complete defence’ to a charge of iniuria. In so far as this assertion is based, as it appears to be, on one text in the Digest, it goes too far and makes nonsense of the whole Roman principle of damage to dignity and standing.

�It is not equitable for a man who defames a harmful person (nocentem) to be convicted for so doing, for the crimes of the harmful ought to be published and it is in the public interest for them to be.’

This may be accepted as far as it goes, that truth was a good defence to the charge of publicly accusing someone of being a criminal;²¹ but there are many things that you can publish about a man with intent to injure his dignity that fall short of alleging him to be a â€?harmful person’—you can say he is illegitimate, or in financial straits, or squints, or is henpecked, or that his daughter has run away with a sailor. Nothing suggests that the truth of remarks of this kind would have been a good defence.

The reader may be puzzled about what has so far been said about defamation. â€?Surely’, he will ask, â€?we have in published political and forensic oratory of the Republic the most savage and unbridled defamation; and was not outrageous personal abuse a stock-in-trade of political controversy?’ This is undeniable, and it may be added that while there is on the one hand no shred of evidence that political or forensic speeches were protected by any formal legal â€?privilege’, on the other hand no actual case is ever heard of in which anyone sued anyone else for defamation on the basis of what was said about him in the courts or the senate or coram populo. It seems to have been thought more proper for established barristers to defend than to prosecute,²² and Quintilian has a discussion about the desirability of reasonable politeness, in which he refers to Cicero’s practice; but he never says or implies that there was any danger of prosecution for slander²³â€”and speeches for the defence might, of course, contain just as much incidental defamation as those for the prosecution. Nor does Cicero’s usage bear out the contention sometimes advanced²⁴ that the phrase â€?whom I name for honourable reasons’ was slipped in, when counsel had occasion to refer to people incidentally, in order to dispel the danger of a slander action.

*

The next task is to look briefly at â€?citizen and state’ from the formal point of view of legal rights and duties. We begin with rights. The dvis Rotnanus had a special position in the Roman state. He had, first of all, the suffrage; what happened to this right is part of the general political history of Rome, and here it need only be said that in Cicero’s day it was largely controlled by the patronage and bribery of political bosses, that in the early Prin- cipate it was maintained (even, to start with, the vote in the election of officers of state) but was a shadow rather than a reality,²⁵ and that the last known occasion on which the populus Rotnanus was called upon to vote legislation was under the emperor Nerva. The second right of the dvis Rotnanus (a very real and practical one for the upper class) was that he alone could stand for public office. Freedmen, however, were debarred; on the other hand much of the executive grade of the growing bureau­cracy from Augustus onwards was staffed by freedmen, and the highest of these posts were capable of carrying massive political influence. But after the Julio-Claudian age, in which Pallas, Narcissus and others were notoriously powerful, the headships of the executive grade came also to be kept for freeborn persons— e quites, in fact. The right of appeal was a third prerogative of dves Romani; the story of the decline of its practical usefulness has already been told.²⁶ Fourthly come the exceedingly important private law rights of comtnerciutn and conubiutn. These, especially in opening the way to inheritance of estates of other dues Romani, must be regarded (along with the right to hold office) as the major incentives that moved peregrines in their constant desire to acquire Roman citizenship. Peregrines were subjects; they had only such privileges as the Roman state chose to afford them. In general, however, Rome protected the legal rights, public and private, which peregrines had in their own communities with as little interference—beyond public safety and the maintenance of upper-class control—as possible.

The first duty was military service. All free inhabitants of Rome’s dominions were liable to this, and in the first century ad, at least, the compulsory levy was still used—it is hard to tell with what frequency, because the levy also recruited volunteers.^{2 7} How­ever, throughout our period much of the army was enlisted and professional, divided into legions (of cives Romani) and auxilia (of peregrines).²⁸

Taxation was a second universal liability, but its incidence as between citizens and peregrines varied. Far and away the most important item was land-tax, tributum or stipendium. It fell only upon â€?non-Italic’ land, and therefore mainly upon peregrines, though it must be remembered that as more and more provincials became cives there were more and more cives owning â€?non-Italic’ land (and also, on the other hand, that most of the big coloniae of Roman citizens in the provinces had the ius Italicum). Indirect taxation (on market sales, sale of slaves and manumission of slaves, and customs dues) fell on all the relevant transactions, by whomsoever made, with one exception: estate duty, the vicesima hereditatium or five per cent tax on inheritances, which was charged upon cives Romani only. Begun by Augustus, it had a long history of perpetual complaint and adjustment;²⁹ according to Cassius Dio the real motive of Caracalla’s extension of Roman citizenship by the constitutio Antoniniana was to bolster the treasury with an increased revenue from this tax?⁰ Into the history of the Roman treasury departments it would be irrelevant here to enquire;*¹ what needs to be said is simply that during our period the â€?Fiscus’ inevitably became a major government department with a good deal of administrative law attached to it, concerned especially with debts to the treasury and estates escheated to the treasury?² But in considering the financial liabilities of the people in Rome’s dominions there is another factor to take into account: the free inhabitants of the empire, being for the most part members of local communities, were liable also for local taxation, unless exempted by status, as were senators of Rome³³ and those professional persons let off by legislation of Vespasian and Hadrian.³* The personal acquisition of Roman citizenship did not of itself release former peregrines from local taxes (though such release might be granted as an extra privilege).

Besides the ordinary â€?liturgies’ or tnunera, which were an ever more oppressive burden on the landowning class in the munci- palities (and corvee, which we have touched on already) there fell upon people two other hated prestations, closely connected with each other: billeting, and the provision of transport for the government postal and supply service. The arrival of the army or of the emperor and his entourage (which meant troops as well) was a dreaded imposition, involving the instant provision of sup­plies of every sort. Already in Cicero’s day billeting led to abuses:³⁵

�Every year, before I got here, this season was taken up with this sort of graft: rich cities were paying huge sums to avoid the army being quartered on them for the winter/

And from Egypt there survive a whole series of documents about â€?royal progresses’;³⁶ the most astonishing and illuminating one of all belongs to the time of Diocletian, long after our period—a newly edited papyrus that deserves mention nevertheless for its sheer enormousness:³7 com, meat, wine, vegetables, bread, bedding, shipping for the troops and the emperor all requisitioned in haste and alarm. The Digest reflects these conditions: under usufruct it refers to â€?contributions from the produce for the passing of an army’,³⁸ and under locatio conductio there is one dis­cussion of what happens if the tenant â€?decamps upon the arrival of troops’ (who proceed to remove windows, etc., from their billet), and another in which the depredations of the military are held to count as a kind of vis maior.³⁹ Maintenance of the vehi- culatio, the official posts and transports,⁴⁰ involved billeting again, and upkeep of roads, provision of pack and draught animals and post-horses, each community being responsible for specific

stretches of road out to its boundaries. With several recent accessions⁴¹ we now have a large body of evidence for the abuses (especially of unauthorized persons using the system)/³ for the quarrels over responsibility,⁴³ and for the efforts of the emperors (uttering cries of despair at the incorrigibility of human villainy)⁴⁴ to correct the abuses. Nerva abolished the vehiculatio charges upon Italy, Hadrian took some part of the provincial charges upon the shoulders of the treasury, and so on. But they remained a burden and source of complaint all through our period and beyond.

Finally, upon dues Romani were incumbent the civic responsi­bilities of guardianship and acting as judges and jurors in the courts of Roman law. Persons on the official list of selecti indices had to have an excuse to avoid acting if called upon, and the long lists of excusationes from guardianship have already been referred to.⁴⁵ A papyrus from Caranis records a petition to the chief district officer of the Thebaid in ad 172-3, by a Roman citizen who was also a citizen of Hadrian’s much-privileged foundation, Antinoopolis, for exemption from guardianship on the ground that Antinoites were not liable to be guardians of anyone except other Antinoites; he appends copies of previous decisions to this effect, including a transcript of some court proceedings in 148:⁴⁶

�To lulius Lucullus his excellency the epistrategus, from Gaius Apollinarius Niger, also called Hermaeus, of Antinoopolis, Osorantine district. Marcus Antistius Gemellus, veteran, when he died, expressed the wish in his will that his daughter Valeria Tertia, also called Thaesarion, a minor, should be heir to his property in the Arsinoite nome, and left as guardians of this orphan myself, Apollinarius Niger, and Valerius Comon, and as [?] associate her grandmother Valeria Sempronilla. But, my lord, in view of the rule laid down by Herennius Philotas, sometime epistrategus, and equally by Antonius Macro, that Antinoites are not to be guardians over anything not in the nomarchy of Antinoopolis, I myself am unable to accept this guardianship laid upon me. I ask, therefore— appending for you, my lord, a copy of these parallel cases— to be relieved of this according to the rules, and that you will order to be done what you think proper that I may be assisted. Yours faithfully. Here is the copy:

�Year 11 of the emperor Caesar Titus Aelianus Hadrianus Antoninus Augustus Pius, 6th of the month Mesore. Eudaimon son of Hermaeus having been summoned according to the petition for suit, and Dionysius having appeared in court, and the petition submitted by him having been read, Philotas said, “Of what origin was the man who left Eudaimon as guardian?” Apollinarius junior said, “He was a civis Romanus domiciled at Ibio Panycteris.” Philotas said, “It was proper for him to decline, even if the man who made him guardian was a citizen of Antinoopolis. For he cannot be liable to be guardian for anyone else, and the testator’s property is not within the nomarchy.” Apollonius said, “We shall bring evidence to show that these persons have meddled in the guardianship and have behaved in all ways as guardians..

*

From the formal duties of the citizen it is a short step to the next question: to what extent did the state interfere in the private lives and property of individuals? In general the Roman govern­ment throughout our period (as opposed to later) had a very liberal attitude; on the whole, a free Roman’s house was his castle, his labour not directed, his children not appropriated for purposes either secular or religious, and his movement and change of domicile unrestricted. On the other hand, there is no reason to think that the state was not held competent to interfere with individual freedom in any of these matters if it chose, and in certain respects it did. The Twelve Tables of the Republic’s early days, if the information that survives about their contents is correct, contained an unashamed mixture of private law, public law, and administrative rules about public conduct, hygiene and safety. They laid down, for example, that people were liable for the maintenance of proper metalled roads at the bounds of their property; that no burials or cremations were allowed in the city (for hygiene and fire-protection), and that limits of various kinds were to be placed on the elaboration of funerals (a â€?sumptuary’ rule very characteristic of the Roman Republic, which all through its history kept vainly trying to curb conspicuous expenditure);⁴⁷ they prohibited hostile demonstrations and nocturnal assemblies, and enacted that â€?societies’—groups of people—could have only such private constitutions as were not in conflict with the law.⁴⁸ These provisions of the Twelve Tables represent very well the spheres in which the more developed state continued to exercise powers of compulsion.

Town-planning bye-laws were regular in many large cities of Greco-Roman times;⁴⁹ Julius Caesar’s regulations, partly pre­served in clauses of the â€?Table of Heraclea’,⁵⁰ were probably designed as a code for all the Italian towns as well as Rome, and they include the following: (a) Repair and maintenance of public streets is to be done by the proprietors of the buildings that flank them, except that where public buildings are on one side the state will pay part. If proprietors fail to maintain, the job will be put out to contract and the proprietors will be Hable to the contractor for the bill; (i) Keeping the streets free from rubbish is the responsibility of special officials under various legislative provisions; (c) There are celebrated traffic regulations, keeping heavy waggons out of the city during daylight hours except for those carrying material for public buildings or removing refuse; (d) No erection of structures is allowed in public spaces or porticoes (for the booths of shopkeepers tended to encroach) except in the case of certain public contractors and of temporary structures for the games. Augustus made some regulations about height of buildings,⁵¹ and in his principate important Water Acts were promulgated for Rome.⁵² After the great fire of ad 64 Nero legislated carefully for the parts of Rome that had to be rebuilt: —wider streets, lower insulae, every proprietor required by law to keep fire appliances on the premises;⁵³ and Domitian made some more rules, apparently reinforcing the prohibition against traders spilling into the streets:⁵⁴

�The bold shopkeeper had swallowed the whole of Rome, and within her threshold no threshold could be seen. You, my lord Germanicus, have ordered the narrow alleys to grow, and what was a street has become a road. No longer is every pillar festooned with roped wine-jars, nor the praetor forced to walk in the middle in the mud; no longer are unsuspected razors sharpened in the midst of the crowds nor the entire street taken up with a sordid tavern. The barber, the publican, the cook and the butcher keep behind their thresholds, and behold! we have Rome again, where yesterday there was nothing but one great filthy shop.’

In Rome the aediles and other minor officials were charged with carrying out some of these rules; Papinian wrote a short com­mentary on the law relating to them.⁵⁵ In addition, as we know from a series of titles in the Digest (â€?That nothing be done in sacred places’, â€?Concerning public spaces and roads’, â€?On the repair of public highways and roads’, etc.),⁵⁶ the praetor’s edict was the mechanism of enforcement of many city by-laws, and Labeo was already engaged in interpreting these clauses of the edict. One bit of the aediles’ edict besides their well-known market regulations also turns up rather mal a propos in the Digest:⁵⁷

�The aediles then say: “Let no one be found to have had a dog, pig, hog, boar, wolf, bear, panther or lion in any place where the public customarily walk so as to be capable of damage or loss to anyone. If this provision is contravened and a free man has died in consequence let him be condemned to pay two hundred solidi*, if a free man is alleged to have been injured let him be condemned in what sum the judge decides to be equitable; for other damage, double the actual damage.”’

The aediles were responsible not only for the market but for the public shows, which must have brought many a consignment of dangerous wild animals into the city.

One particular rule of urban planning occurs with reiterated insistence at Rome and in the municipia whose statutes were modelled on those of Rome, but does not seem to have had a parallel in the Hellenistic cities: namely, that houses must not be demolished (either wholly or in part) without permission of the authorities, which would only be given if something was put in their place. Wc meet the rule for the first time in the earliest municipal charter, that of Tarentum, and it is echoed at Julius Caesar’s foundation of Urso?⁸ An enactment of Claudius’ principate, the senatusconsultum Hosidianum,⁵⁹ laid down for Rome and Italy that buying a building in order to make a profit by demolishing it and selling the materials should be a punishable offence for both buyer and seller, and the transaction a nullity— and it did so in curiously excitable language that sounds like the authentic voice of the emperor Claudius himself:

�Since the care of our best of emperors has taken thought even for the buildings of our city and of Italy, that they may beever­lasting, coming to their aid not only with most august precept but with his own example; and since the felicity of the coming age, the more it is contributed to by public buildings, the more it demands the preservation of private ones; and since all men ought to abstain from this most bloodstained form of traffick­ing and not cause a spectacle most unsuitable to peace by the ruins of houses in town and country...’

The prohibition makes numerous appearances in the Digest,⁶⁰ one text of which says that you cannot leave a building by legacy or fideicommissum with instructions for it to be demolished, and another that a further senatusconsultum in ad 122 made it illegal to leave by legacy the attachments of buildings—columns and so on—and extended the whole principle over the entire empire and over other buildings besides houses.⁶¹ The psychology of this is not easy to fathom; it does not seem to have been so much preservationism of antiquities as a deep distaste for the appearance of derelict structures on waste ground—a dislike of ruins.

It is natural to enquire at this point how far private property was Hable to expropriation by the state for public purposes. Directly opposite answers have been given to the question, which tends to be treated as a highly theoretical issue about the content of dominium ex iure Quiritium.^62, Here we are simply concerned to state what actually happened during our period. It is proper to distinguish between penal expropriation (i.e.

263 confiscation of property for crime), expropriation for public necessity, such as pulling down a man’s house to prevent a fire from spreading or ordering its demolition because it interferes with the auspices, and expropriation for public utility (for example, to build an aqueduct or provide land for time-expired soldiers). The first two are not in dispute; we must here be dogmatic, and say that expropriation for public utility was also legitimate but in our period sparingly used and, when so used, accompanied by some (not necessarily full) compensation. To say that â€?the Roman owner had a general residuary, not an unre­stricted, right’ to his property⁶³ is too legalistic, and no Roman jurist ever laid down anything of the sort; but it is no less ex­cessively legalistic, from our standpoint, to argue away all the known cases of expropriation on grounds of â€?only establishing a servitude’, â€?not concerning land susceptible of dominium⁹, â€?refer­ring to ius sacrum, not ius civile, and so on. If owners were powerful men they might stop a project—not qua owners but qua powerful men;⁶⁴ or a tactful person like Augustus might prefer to restrict his new forum rather than demolish too many of the humble dwellings of the plebs.⁶⁵ The state normally came to arrangements with owners:⁶⁶

�Caesar’s friends (yes, I mean me and Oppius, however sick that makes you!) have decided to make no bones about sixty million for the public work you were so laudatory about—opening up the Forum and clearing it right to the Atrium of Liberty. We haven’t been able to settle with the private owners for less.’

But the powers could be taken. The Augustan Water Acts, for example, took materials from private land and established rights of way where necessary:⁶?

�Decision of senate for repair of aqueducts;... that from the land of private owners earth, clay, stone, bricks, wood and all other necessary materials may be taken, value estimated as a good man would estimate, from the nearest places from which they can be removed without damage to private property, and that for the purpose of removing such materials and achiev-

ing such repairs, rights of way and carriage must be granted when required through the land of private owners, without damage to it.’

And the charter of Urso laid down in terms that if an aqueduct was decided on by a majority of the city council it could not be stopped from proceeding over private land.⁶⁸ (Aqueducts were naturally the standard case, being the one kind of big public structure that must, so to speak, go this way rather than that.) As to land for veterans, it was a notorious political issue in the late Republic. It was not denied that the state could call in ager publicus, however questionable the expediency of doing so; as for privates, apart from the wickedness as well as folly of Sulla’s expropriations and the triumviral proscriptions, the assumption was that if the state took private land it would buy what it could get in the market.⁶⁹ Augustus, though he took land for his troops, at least paid for it.⁷⁰ We hear occasionally in the Digest and the grontatici of expropriation of provincial land for veteran settle­ment.⁷¹

★

No less subject to controversy is the question of the right of free association in Rome. Many kinds of voluntary groups of people flourished at every period of Roman history;⁷² we hear most, through masses of inscriptions, of the â€?burial societies’ of the poor and of the guilds of artisans and merchants, each centred upon the cult of some patron deity. These latter play a famous role in history, because just at the very end of our period the first steps were taken to turn them into tied and ultimately hereditary trade corporations which would eventually take their place alongside the tied land-workers in the regimented economy of the late empire;⁷³ our present question, however, is a different one: how far could people join together voluntarily without restriction for the promotion of their political objectives, the exercise of their religious beliefs, or the protection of their economic interests? The Roman state, all through its history until the late empire, tended to take a laissez-faire view of private activities; but this tendency was strongly countered, where association was con­cerned, by another, namely that to the first of the above-men­tioned aims the government was always deeply hostile, and the others tended to get mixed up with it. The populus Romanus was never allowed free political assembly; not only its voting assemblies but even public meetings for political speeches had to be presided over by a magistrate, who controlled the proceed­ings.⁷⁴ The tribunes, indeed, counted for this purpose—so far was political opposition possible; but it is characteristic that when historians in the late Republic tried to give an account of the early struggles of the Roman plebs under their tribunes for political power they pictured them in terms of â€?agitators’ and â€?mob’. For by Cicero’s day politics was a jungle; on one side the upper class had political pressure-groups for the purpose of â€?managing’ elections,⁷⁵ and handed out money through divisores to groups of humble citizens for their vote, and on the other side there arose the real â€?mob’, bands of thugs, free and slave, operating to intimidate, to break up elections and so on. Hence a tale of legis­lation and counter-legislation: a senatusconsultum of 64 bc suppress­ing collegia and a law put through the assembly by Clodius in 58 restoring them;⁷⁶ a senatusconsultum in 56 suppressing sodalitates decuriatique⁷⁷ (which sounds like the pressure-groups of the aristo­cracy) and a lex Licinia de sodaliciis of 55,⁷⁸ apparently again directed against mass bribery; and finally a lex lulia which seems to have settled the law fairly effectively for the future. Whether this statute should be attributed to Julius Caesar or to Augustus remains unsettled; Suetonius seems to attribute it to each of them in turn,⁷* but the fact that the ancient ban on independent political meetings turns up in the charter of Urso⁸⁰ perhaps tips the balance in favour of giving this important Julian Law to Caesar. It enacted that, except for certain time-honoured formal societies, every other association whatsoever must henceforward be licensed.⁸¹ One of the numerous guild inscriptions throws a little more light on the licensing process:⁸²

�To the Gods of the dead: In honour of the Society of Bands­men who perform at the public rituals, whom the senate has allowed to meet, be summoned, and be gathered together under the Julian Law by authorization of the emperor for the purpose of the festivals.’

It is probable that the statute was originally for Rome and Italy, and the senate the licensing authority; when its scope expanded the emperor was no doubt the practical arbiter, but when it expanded it must also have become unmanageable, for the empire pullulated with little associations. Consequently, at some time in the first century ad there was one further final shift of policy; the innumerable small groups of the humble folk who paid small sums for an occasional beano and a proper burial were permitted to exist unlicensed, by a senatusconsultum of which we learn from the surviving constitution of such a club at Lanuvium in the i3o’s:⁸*

�Clause from the senatusconsultum of the Roman people: Persons allowed to meet and gather and have an association: those who wish to pay a monthly sum for [? funerals] may form an association for this purpose, but they must not meet more than once a month under the terms of the association, for making their contributions out of which they will receive burial on their decease.’

The rules thus became as stated in a late passage of the Digest:³⁴

�Governors of provinces are forbidden by imperial mandate from permitting collegia- and sodalicia or allowing soldiers to have camp societies. But the humble are allowed to contribute a monthly sum provided they meet only once a month, lest under such a pretext as this they initiate an illicit society. This applies not only in Rome but in Italy and the provinces, as was laid down in a rescript of the late emperor Severus. But they are not prevented from meeting for religious purposes as long as they are not in contravention of the senatusconsultum that forbids illegal associations.’

If we were to go by a text in the Digest that purports to come from Gaius,⁸⁵ the licensed associations were few: the publicani, guilds of miners, certain guilds at Rome, notably that of the bakers, and the guilds of shippers in the provinces. This leaves in a kind of middle ground very large numbers of associations, of merchants, craftsmen, showmen and so on, of which the inscriptions give testimony. Were they under license or not? The answer is that they probably were, and Justinian’s compilers have deleted from a longer list of Gaius all except the ones that were significant in the late empire, or all except the ones that had corporate status.⁸⁶

What were the purposes of the licensed associations? The most prominent, and perhaps genuinely much the most important, was a combination of cult to a patron deity and social get-together, with plenty of hierarchy and precedence such as people love. In this role they had a special status and place of honour in the life of the municipalities.⁸⁷ Did they, then, never pursue economic or political aims? They are found occasionally petitioning the government about their interests,⁸⁸ and the â€?election posters’ of Pompeii testify that there at least they played a vigorous part in local politics, proclaiming their support for candidates for office; though precisely at Pompeii there were illicit collegia which were dissolved after disturbances in ad S9.⁸⁹ But common action in pursuit of economic or political aims (especially if it led to riot­ing) might be regarded by the government as subversive; strike meetings by the bakers’ union at Ephesus, for example, were sternly repressed,⁹⁰ and at Ephesus again the reader will recall not only Paul’s clash with the silversmiths’ union who saw their live­lihood in danger but also the warning of the town clerk that public demonstrations about this would look to Rome like a political riot.⁹¹ One surviving set of rules of association, that of the society of salt merchants at Tebtunis in Egypt, dated ad 47, divided between its members the areas in which they should have a monopoly of the trade, and fixed an agreed minimum price for the product.⁹² We cannot say how regular such agreements were; the Tebtunis merchants were lessees of a state monopoly under licence, and so hardly count. All we know is that in the case of the grain-supply they were forbidden on grounds of public policy:⁹³

�By the lex lulia de annona a penalty is laid down against anyone interfering with the grain supply or entering into any partner­ship to increase the price of grain.’

Apart from this, government action in the economic field was mainly confined to the curing of particular abuses brought to its notice by petition.⁹⁴ And much the same can be said of strikes; if workers withdrew their labour that was a matter between them and their employer.⁹⁵ Organized action, however, as has already been said, might be treated as riot or conspiracy, and there is in fact little evidence for it.⁹⁶

*

The most obvious sphere in which the state impinges upon the individual is the criminal law. The system of the Roman criminal courts was described in Chapter III, and it was there shown how during the Principate the standing jury courts were gradually supplanted by the â€?extraordinary’ jurisdiction of the emperor’s delegates. The jury courts came to an end with a whimper rather than a bang; the jurist Paulus at the beginning of the third century said :⁹⁷

�The ordinary jurisdiction of the capital courts has ceased to be in use; [but the standard legal penalties survive although the crimes themselves are now investigated extra ordinetn].’

They were probably never formally abolished by legislation.⁹⁸ Books 47 and 48 of the Digest contain a mass of evidence about the offences that were tried under the criminal law, still mostly grouped under the headings of the old statutes that set up the standing jury courts; one might wonder why the great Severan jurists like Ulpian, writing when the jury courts were in practice obsolete, chose to group the criminal law in this way, but the answer is no doubt partly that it was traditional and partly that they were only defining offences—so that even Justinian could continue to employ the antique system of classification.⁹⁹ The picture is in any case confusing; some offences seem to have been transferred from one court to another, the addition of new offences to the sphere of this or that court seems to have been done quite unsystematically, and some very similar looking crimes were apparently triable under more than one heading. One thing they had in common, besides the rules of procedure laid down for them by the leges luliae iudiciariae: conviction in all of them resulted in legal â€?infamy’:¹⁰⁰

�Infamy is not produced by conviction for all crimes, but for those of the indicia publica. Infamy therefore does not follow condemnation for a crime not under the indicia publica, unless it is one for which condemnation in a civil action would have resulted in infamy, such as theft, violent seizure of goods, or iniuria.'

Of treason, maiestas, nothing need be said except to remind the reader that seditious Ebel came to be attached to it. It was the poEtical crime par excellence, and its history belongs to the sinister story of palace poEtics, intrigue and assassination told by Tacitus, Suetonius and Dio. Repetundae, extortion of money by provincial governors, remained a common offence in the first century ad¹⁰¹ (and perhaps later—it is the evidence that dies out). Pliny records numerous trials; in his day the offenders were tried by the senate, their peers, but upon conviction the case went to a board of recuperatores to determine the sum at issue. Judicial bribery also came under this head.¹⁰¹* The court for murder took parricide, poisoning and magic arts, but seems to have lost its old original â€?walking with a weapon with intent to kill or steal’ to the court for vis publica.¹⁰² On the other hand it picked up arson, wrecking, castration, and engineering of testi­mony, if a magistrate, to procure a death penalty.¹⁰³ Vis publica dealt with illegal possession of arms, false imprisonment, affray, rape, prevention of burial, tampering with the courts (presumably by intimidation) and breach of the citizen’s right of provocation¹⁰⁴ and it seems that violation of tombs might also come under it.¹⁰⁵ The court de adulteriis dealt also with stuprnm and with unnatural sexual practices, including incest. The court de annona was con­fined to punishing combinations to raise the price of grain. And as to the old offence of ambitus, election bribery, it was still being legislated against in the first century ad, but later, as Modes tinus says:¹⁰⁶

�This law is obsolete in Rome today, because the creation of magistrates belongs to the care of the emperor, not the favour of the people.’

Theft and plagium we have already said enough about, and also the non-civil court for iniuria (not, it appears, technically a indicium publicum), which concerned assault and battery and forcible entry. But some further particularity must be given to the inter­esting complex of offences that crystallized round the old lex Cornelia testamentaria. Its original scope was false dealing with wills—suppressing them, forging them, even opening and reseal­ing them.¹⁰⁷ An edict of Claudius and a senatusconsultum Libon- ianum¹⁰* made it a particular offence to write yourself into a man’s will, and the Libonianum seems to have been important enough to warrant a special treatise by Paulus.¹⁰⁹ By another senatus­consultum of unknown date the lex Cornelia was extended to cover forgery of any kind of document.¹¹⁰ Then it picked up falsifying of edicts and constitutions¹¹¹ (though if done by an official this was peculatus,¹¹² and the praetor had always had a clause protecting his own edict from being tampered with).¹¹³ Also there came in here all the law about counterfeiting—adulteration, clipping, forging, uttering false money and refusing to accept good money¹¹⁴ (though again, if done by officials this might be peculatus)¹¹⁵ The use of false weights and measures was subsumed under the lex Cornelia by Trajan,¹¹⁶ which is natural enough; but a curious collection of other falsifications gets put by the Digest at least under the same heading: bribery in the legal process appears here also; so does neglect of imperial constitutions by a judge; assuming a false name; foisting upon someone a supposi­titious child; falsely behaving as a member of the military and using faked insignia or passes.¹¹⁷ Peculatus, as we have seen, was very similar to falsa; in fact it was much the same offences when done by persons holding public or sacred office—retention of public money, conversion of public and sacred funds and the like were covered by it.

There was a constant need during the Principate to define new criminal offences, for the criminal law of the Republic had remained elementary. Some, as was shown above, were subsumed under the old statutes, others were treated as extraordinaria from the start, going before the emperor’s delegated tribunals: black­mail (concussio), cattle-rustling (abigeatus), harbouring of brigands (receptatio), burglary (effractio), and what seems to have been a special provision against snake-charmers.¹¹⁸ The most striking­sounding of these new â€?extraordinary’ offences, though little is really known about it, was stellionatus, behaving like a lizard; it was the criminal version of dolus, put alongside the civil actio de dolo just as theft and iniuria got their non-civil counterparts, and it carried the same peculiarity as the actio de dolo, that it was a residuary procedure, only to be resorted to if no other charge would fit.¹¹⁹ It must be remembered, in any case, that the magisterial cognitio did not depend on the allegation of a named and defined offence; any set of alleged criminous acts was good enough ground for cognitio. The definitions no doubt arose out of the frequency of certain sets of facts.

For completeness we must add that gambling and betting were the object of a long tale of legislation from early Republican times onwards,¹²⁰ though they were not, in our period, criminal offences. A senatusconsultum said you could put money on athletic contests â€?which are done for virtue*, but not on other games.¹²¹ It was the praetor’s edict which applied the sanctions; the praetor, it appears, refused actions to recover gambling debts, and refused them also to the proprietors of gambling premises for assault or for theft committed on the premises, and he gave an action to people forced into gambling against their will:¹²²

�for there are those who force people to gamble, either initially or, when they themselves are losing, to keep their opponent at the table.’

This seems in the end to have been visited with criminal penal­ties.¹²³

Everyone is struck by the apparent contrast between the simplicity and lack of savagery of the penalties for crime in the Republican age of Rome and the diversity and increasing brutality of those under the Principate. Appearances, as to brutality, may be a bit misleading, and diversity testifies to a more sophisticated and flexible criminal system. Under the system of the quaestiones perpetuae the penalty was fixed by the statute which established the court; if the jury convicted, the poena legis followed invariably, though where it was pecuniary there might have to be a litis aestimatio or assessment of amount. Penalties were either pecuniary or they were capital—there was nothing else. The capital penalty (execution with the axe—later with the sword) was seldom in­flicted, to judge from what we hear, because the defendant normally went into exile, which was not a penalty of the law but an accepted way of avoiding the penalty. He lost his citizen­ship and freedom, so far as Rome was concerned,¹²⁴ and he lost whatever property he could not take away with him; and behind him the door was shut by the decree that, he being now â€?in exile’, he was â€?interdicted from fire and water’—none must harbour him, and if he returned anyone could put him to death with impunity. Judging from what we hear may, however, be misleading; we do not know how much chance the lower classes had to slip away into exile, and a good many people may in fact have suffered the death penalty to the letter.

Jurisdiction extra ordinem was a wholly different affair. It depended on no statutes, and the penalties were at the discretion of the magistrate; even if the defendant was up on a â€?statutory’ crime, if it was being judged extra ordinem and not by a standing jury court (as was increasingly the case under the Principate), the emperor or prefect of the city or provincial governor could please himself and inflict penalties greater or less or of a different kind.¹²* The results were not in the end as arbitrary as they sound, for what happened was the growth, by the end of our period, of a fairly standard set of â€?extraordinary’ penalties, because judges tended to follow the precedent of imperial rescripts.¹²⁶ There was, to begin with, exile—as a true penalty, not just an escape route— in two main forms: relegatio, a negative form, meaning expulsion from Rome or from a province, and deportatio, a positive and much more severe form, involving loss of citizenship and banish­ment to some specific remote place (Tomi, Pandateria and so on); this latter was not within the competence of provincial gover­nors.¹²⁷ These forms might or might not involve loss of property (normal with deportation but not with relegation), and they might be permanent or temporary. Another creation of the Principate was condemnation to labour¹²⁸—public works or the mines 01 the gladiatorial troops. The first of these, the least severe, did not affect free status, and might be temporary; but damnatio in metalla was for always (the â€?next thing to death’),¹²⁹ and as a gladiator you were bound to be killed sooner or later—moreover, in these two cases a man lost liberty as well as citizenship, becoming a â€?penal slave’.¹³⁰ Exile in its various forms was on the whole for the upper class, hard labour for the lower. Beyond this came the death penalty (which in the â€?extraordinary’ jurisdiction really meant death) by decapitation, and beyond even that came the summa supplicia, aggravated death by crucifixion, burning, or being thrown to the beasts in the circus.

Now the summa supplicia were emphatically not an invention of the Principate, for all that they are associated primarily in every­body’s mind with the Christian martyrdoms, including the first of them all.¹³¹ The first two, at least, are very old, going right back to the â€?barbarism’ of early Rome, when crucifixion was a penalty for incest and treason. Of course, everybody knows that all through the Republic revolted slaves were crucified. Verres put to death in this way a Roman citizen in Sicily; Cicero com­plained of the breach of provocatio and the shamefulness, but not of the illegality of the method of punishment as such, and probably he would not have turned a hair if the man had been a peregrine.¹³² Burning too was an ancient punishment for treach­ery and arson. (It should be added that the antique special punish­ments of the â€?sack’ for parricides and the walling up alive of criminous Vestal Virgins went on.) The earliest certain evidence for casting to the beasts is a reference by Strabo to the fate of a robber chieftain from Sicily in his own time.¹³³ Naturally, like the others, it was not normally inflicted on high-ranking persons.¹³⁴ This became, in fact, the sphere par excellence of the distinction between honestiores and humiliores. Where the latter were condemned to the summa supplicia the former were just

s

executed; where the latter went to theminesthe former were merely relegated, and so on. But whether a sharp distinction ought to be made between a â€?liberal’ Republic and a progressively more brutal Principate seems doubtful. It is vital to remember that we do not know much about what was done to humble criminals in Republican times. In the late Republic the only criminal courts were the iudicia publica, mostly for â€?upper-class’ offences, so that it is not surprising that the penalties were mild in practice; but the lower plebs, and peregrines, and slaves, were at the mercy of magisterial coercitio, which is unlikely to have been liberal-minded. With the criminal law of the Principate we are at least looking across the spectrum of the whole population. At any rate, return­ing to the great distinction between honestiores and humiliores as it was formally set out from the second century ad onwards: Hadrian ruled that decurions (the bottom of the honestiores, so that what applied to them applied a fortiori to those above) could not receive capital punishment at all except for parricide, but this did not last.¹³⁵ Decurions could not be condemned to the mines or to crucifixion or burning. Flogging, too, a very com­mon general punishment for minor offences,¹³⁶ which it had originally been a Roman citizen’s privilege to escape, was now escaped only by the honestiores;¹³⁷ we are back, in fact, to what was said at the end of Chapter III, that the humiliores came to take the place once occupied by peregrines.

Imprisonment was not, in principle, a legal penalty in Rome, and was probably not much used in practice, though the principle could at times be disregarded:¹³⁸

�Governors often condemn people to be held in prison or kept in chains, but they are not supposed to do so, for such penalties are forbidden; prisons ought to be for detaining men [i.e. for trial], not for punishing them;’

and people may have had to languish in gaol awaiting the infrequent assizes, in the provinces particularly.

Nor, apart from the summa supplicia, was torture a legal penalty. To the Romans it was not a category of punishment but a method of interrogation of witnesses.¹³⁹ In the case of slaves, their evidence was not admissible except under torture.¹⁴⁰ Numerous rules were evolved about this, such as that of Augustus that â€?you cannot begin with torture’,¹⁴¹ i.e. that there must be a prima facie case of some kind before slaves could be interrogated, some prior evidence for them to refute or corroborate. Augustus, indeed, seems to have wanted to confine slave torture to evidence in â€?capital and atrocious’ crimes, and Antoninus Pius laid down that in pecuniary suits torture was only to be used if the truth could not be reached otherwise.¹⁴² We have already noted that if a master was killed all the slaves of his familia had to be put to the torture.¹⁴³ What of free persons? Torture was one of the things against which a civis Rotnanus could exercise appeal, and it seems that apart from flagrant sporadic illegalities free persons were not tortured for evidentiary purposes in the late Republic. In the age of the Principate, however, we hear often enough of free persons, even cives, being tortured in trials for treason. Marcus Aurelius ruled that the highest class of all and their families were to be exempt from torture/⁴⁴ and by the end of our period this privilege had been extended to all honestiores-, but conversely treason always remained an exception/⁴⁵ and other grave crimes tended to be added to it.

As is well known, suicide was not regarded by the Romans with any horror or disapprobation, and many people of the upper class, feeling that for one reason or another life was not worth living any longer, escaped from it; we do not know how common suicide was amongst the lower classes. Now the historians of the early Principate refer a good deal to suicide as a means of avoiding the terrors of a trial for treason:¹⁴⁶

�This kind of death was often put into people’s minds by fear of the executioner, and also because, if convicted, a man’s property was confiscated and his burial forbidden, whereas those who settled their own fates had their bodies buried and their wills respected—a bonus for getting it over quickly.’

The rule that death before conviction forestalled the conviction, so that the consequences of ignominy and confiscation did not fall upon your family, is borne out for Cicero’s day by an anecdote of Valerius Maximus:¹⁴⁷ Licinius Macer, on trial for extortion, waited on a balcony till the votes began to be counted, and when he saw Cicero, who was president of the court, taking off his magisterial toga he sent a message to him saying 1 have died not condemned but still under trial, so my property cannot be sold up’, and at once committed suicide; on receipt of this message Cicero pronounced no verdict. By the end of our period the rule was different: suicide before conviction did not save a man’s will, according to Ulpian:¹⁴⁸

�except in the case of those who do it out of weariness of life or impatience with ill health, or for self-advertisement, like some philosophers.’

If you wanted to save your property you must be still more prompt, and commit suicide before any charge had been pre­ferred, that is, before you were even on trial.¹⁴⁹ It is uncertain when this change came about. It has recently been argued,¹⁵⁰ on the basis of a new piece of evidence about what happened to the property of Macro, Caligula’s praetorian prefect, after he had been driven to commit suicide, that it had already come about in the reign of Tiberius (which would suggest that the change was connected with the spate of treason trials); this may well be right, but the evidence adduced does not actually prove that the new rule rather than the old governed the case of Macro.

The principles of procedure for the standing criminal courts, as codified by Augustus in the lex lulia iudiciorum publicorum, were â€?accusatorial’; there had to be a named accuser and a proper statement of charge. The authorities had no power, of themselves, to charge and try people. Any citizen—with a few exceptions— could bring a criminal charge, and there were rewards for the accuser if the trial resulted in a conviction—which was liable to conjure into being the professional delator; but on the other hand the accuser was responsible for his charge and liable to penalties for calumnious accusation. To judge from the fact that Paulus is found in the Digest¹⁵¹ quoting the proper statutory form of â€?charge-sheet’ in connection with the crime of adultery, we may assume that the â€?accusatorial’ procedure continued to be proper for the statutory offences even when they came to be judged by tribunals other than the standing courts. (The Digest also contains a list of people debarred from preferring charges:¹⁵² women and wards, soldiers, magistrates in office, â€?infamous’ persons, and freedmen as against their patrons; but to this rule in turn there were exceptions (thus, anyone at all could bring a charge of treason),¹⁵³ which headed the law in a new direction, towards a principle that anyone should be entitled to bring an accusation on behalf of his own interest or family—a sort of private prosecution for crime.)¹⁵** The magistrate judging extra ordinem, on the other hand, at any rate for non-statutory offences, could proceed â€?in- quisitorially’; there need be no formal named accuser and charge, and he could simply investigate on â€?information received’, hale into court on his own responsibility, and judge whomsoever he chose (subject to the rules of appeal). Pliny proceeded, in dealing with Christians, on the basis of an index or informer as well as on formal accusations, and Trajan’s objection to the use of anony­mous informations, â€?they are a bad example and not in tune with the age we live in’, implies that there was nothing ultra vires about Pliny’s use of them. No doubt it was the lower orders who got thus treated.¹⁵⁵ It is instructive to compare the procedure of the proconsul of Africa before whom Apuleius pleaded his defence on a charge of magic arts; here there was a formal named accusa­tion and charge-sheet, and the governor actually required it to be resubmitted on the ground that the real accuser was sheltering behind someone else’s name.¹⁵⁶ At the top of the tree ofcrime was the unquiet world of intrigue and bloodshed about the imperial court; in the political trials for treason and its appended charges the rule of law did not always run, and we must not expect them to be always explicable in terms of, or to illuminate neatly, the rules of criminal justice. Such details as proper charge-sheets and named accusers were hardly to be expected at such times, for example, as the aftermath of the Pisonian conspiracy:¹⁵⁷

�No charge, no accuser was available. Nero, unable to clothe himself in the appearance of a judge, had to turn to naked force?

Professional delatores flourished on the rewards to be gathered. The emperors knew well enough the dangers of unleashing the informer, but, not without justification, they feared treason more. As Tiberius insisted:¹⁵⁸

�better to subvert the law than to abolish its custodians.’

And Domitian, who is reported to have said �If you do not chastise delatores you are giving them positive encouragement’, is also reported to have said that the great difficulty for emperors was that nobody believed them when they complained of plots against them until they were actually assassinated. He was proved correct.

★

We have touched upon the fate of the Christians, which brings us once more face to face with the issue of freedom—this time, freedom of religion. â€?The law and the Christians’ has been studied exhaustively in recent as in former years by scholar after scholar.¹⁵⁹ It may seem grotesquely impertinent to make summary remarks about the subject here (especially since they will reveal robust independence—or inflexibilis obstinatio, according to the point of view); the only excuse is that the scope of this study demands that the problem shall not be omitted altogether, and it must be accompanied by a plea to the reader not to read what follows and nothing else. The view about the legal position to which scholars have been gradually leading us is that Christians in the provinces, when disturbances of one kind or another brought them to the attention of the authorities, were proceeded against by the magistrate (unless he preferred to ignore them) in the exercise of his unfettered cognitio, so that we do not have to subsume Christianity under some great legal heading like treason or un­lawful assembly in order to understand why Christians were tried. To this account, which is a great advance, one difficulty seems still to adhere: the Christians were a special category. Magisterial cognitio over mali homines (as almost everyone in the first two centuries regarded them) cannot explain why, when Christians were punished, they were punished â€?for the name’, simply for being Christians; if you said you were one you were executed or, if a citizen, sent to Rome, but you had only to deny you were one to secure release. â€?If a Christian, a fortiori a malus homo⁹; very well, that could make sense; but â€?if not (now at this moment) a Christ­ian, a fortiori not a malus homo⁹—that does not make sense. The equation â€?Christian = man to be punished’ can only have been established by government directive. It is allowed that Nero’s punishment of Christians after the fire of Rome in ad 64¹⁶⁰ may have constituted some kind of precedent for the assump­tion that â€?badness’ was inherent in the â€?name’.¹⁶¹ This is not enough. There must have been a legal order, a rescript to the urban prefect or something of the sort, laying down that hence­forward persons brought before him as Christians were to be capitally punished ;^l6ia otherwise we still have no explanation why the fact that Christians were punished in 64 as incendiaries was a precedent, not merely for their being punished later as Christians but for their not being punished if they demonstrated that at the moment of trial they were not Christians.

The legal position was, of course, the outcome of mingled currents of opinion—the attitude of the governing class, of the man in the street, of the Christians themselves. Scholars have traced the course of many streams that flowed into the river of hatred against Christians and intransigence by Christians; on the one side, fear of subversion, dislike of contumacy, contempt for exclusiveness; on the other, intolerance of pagan syncretism, messianic hope, the tradition of martyrdom. It is important that the old view has recently been restated (in new dress) that the Roman governing class minded about the traditional Roman religion, so that Christianity presented a special specifically religious challenge to Roman society.¹⁶² The occasional outbursts of persecution against other contemporary religions are on the whole explicable on grounds of politics or concern with morals and public order (though vaguer and more â€?ideological’ dislikes are not to be ignored even in their case); astrologers were also banished en masse from Rome or Italy now and then,¹⁶³ and so were â€?philosophers’—mostly the Cynic moral preachers, if their allegations and comminations became too subversive. But Christians and Jews were different, because they refused to participate in the civic religion of the Roman state, the â€?faithful ritual’, pius ritus,¹⁶* upon which the most sceptical and agnostic never quite lost the feeling that the empire might depend—upon which, for example, even the emperor Caracalla ostensibly based his bestowal of citizenship on all free men:¹⁶⁵

�... wherefore I think that I can best make just acknowledg­ment of their majesty if I bring together all those persons who come to be numbered amongst my subjects into the [?] worship of the gods.’

Now the Jews of Judaea were a natio, a clear ethnic group, and their special habits of religious thought well known throughout the Mediterranean world from of old; their cult was given special license and sanction by the Romans as a national idiosyncrasy. The Jews of the Dispersion were accorded the same license as a �permitted religion’ a fortiori, as it were; though the Romans did not like Jewish proselytizing it was mostly in the east and led to no disturbances (if Jews were thought to be responsible for dis­turbances they got into trouble like everybody else). Judaea was destroyed after several national rebellions, but even so the Jews of the Dispersion were never persecuted for their religion. It has been plausibly suggested that they were a specially protected, exempted and sanctioned religious minority because it was admitted by all that they were loyally adhering to their ancestral tradition— their own �faithful ritual’, however repugnant it might seem to outsiders. The Christians, on the other hand, were the rejecters of the state religion not on the basis of an ancestral and recognizable tradition, but in rejection of that too; they were therefore (and we cannot escape from this) followers of a religio illicita, alone punishable as such.

★

The problems of freedom of thought and speech and action in society are many-sided, and have been the subject, for Rome as for other historical societies, of many studies.¹⁶⁶ They radiate in many directions, far beyond the sphere of the law, but in so far as they do belong to that sphere they are relevant to the subject with which this book can most fittingly conclude. â€?The excellence of the Roman law is justly extolled’, writes a recent scholar (as a prelude to setting out its defects);¹⁶⁷ indeed, it is a cliche to talk about the greatness of the Roman law and to see in it the one major historical achievement of the Roman genius. On the other hand, we are in an iconoclastic age, and before long it will be fashionable (one can see this coming) to allow the Roman law no merits at all. The foregoing pages provide at least some material for reflection on this topic, but they are limited by chronological period and in other ways; the purpose of what follows, therefore, is to direct the reader’s attention to some other features of the pattern which need to be taken into account.

First of all, what has been said above is inadequate to provide evidence for estimating the Roman legal achievement in one important aspect, because there has been no description or dis­cussion of the quality of argument and methods of interpretation of the Roman jurists, though some notion of this may emerge from the passages that have been quoted from their writings.

In the second place, the reasons for talking about the greatness of Roman law cannot be adequately judged by looking only at the period in which we have studied it; that estimate is bound up with its entire subsequent history. It became, from roughly ad 1200 to roughly ad 1600, in a greater or less degree the living law of all European states except England,¹⁶⁸ and has left its mark on the ways of legal thinking in Europe and the states to which Europe expanded, even though they have now abandoned its formal framework in favour of national codes. Though emphasis has recently been given to the view that the reason for the â€?recep­tion’ of Roman law in Europe was not so much any intrinsc marvellousness as the desire of the aspiring successors of the Roman empire to acquire the law of the Roman empire,¹⁶⁹ we can see that just because its principles have been revered, taught, and interpreted to give living law by so many generations of lawyers in so many countries, their universality has helped to convince people of their quality. If, on the other hand, we direct our attention (as we have been doing) not to the huge Corpus of Justinian in its grand historical perspective, nor the great dogmatic structure built upon it by generations of jurists, culminating in the awe-inspiring â€?Science of the Pandects’ of eighteenth- and nineteenth-century German legal scholarship, but to the actual impact of Roman law upon society in the limited period from Cicero to Ulpian, a more qualified judgment imposes itself. First there is the well-known point that the elaboration and subtlety and intellectual power were nearly all poured into the mould of the pure private law. It is an exaggeration to say that the criminal law of Rome â€?never passed through a stage of strict law’,¹⁷⁰ but it did remain bound up with the exercise of executive imperium, and administrative law grew up with little help or interest from the jurists, until the end of our period. Moreover, there were chinks in the intellectual armour; the reader will have noticed a kind ofâ€?a priorism’ in the Roman jurists, a tendency to play best the deductive games with the rules and the â€?case-to- case’ games with particular sets of facts, and to shy away from more empirical problems like inventing rules of evidence, or keeping proper records of legislation, or going out and seeing how people in the empire were actually behaving. And this brings us on to the clear class-factor; much of the law was directed to the maintenance of those rules of private property which mainly interested the possessing classes. It would be wrong to draw this line too narrowly; we have seen many examples of comparatively humble people in all walks of life successfully ordering their affairs through the rules of Roman law. But we have also seen, for example, how little there is in the Digest about the terms of labour or the protection of tenants’ rights, and how severe were the obligations of freedmen—not to mention slaves. Connected with this again, but going beyond it, are all the questions about the real availability of the remedies of the law: absence of a professional tradition of impartial justice, and of adequate public force to keep the writ of the law running in remote places where the boss or the thug might hold sway with impunity; the vexations and the delays.... And there were broader defects still (defects, really, of Roman government and society as a whole, though emerging in the law): the very narrow limits of free speech and political action and the tendency to treat other freedoms as subversive. All these things must be set in the historical scales.

A third consideration is that, quite contrary to what one might tend to suppose, in our period Roman law was decidedly non- ecumenical.¹⁷¹ This is in many ways a merit; Rome believed in her mission to govern peoples and to maintain the â€?Roman Peace’, and one can find many tributes to the blessings of that peace,¹⁷² but she did not believe in any mission to spread the institutions, as opposed to the protection, of Roman law beyond the range of those who wished (and were judged worthy) to accept her citizenship. Citizen and peregrine, till the end of our period, had fundamentally different rights and duties, and what is more, as Rome gave citizenship—lavishly enough—with one hand, so she diminished its rights, for all save honestiores, with the other. Peregrines, as between one another, were mostly left to their own legal systems—an admirable principle, though it is not to be supposed that Rome would have tolerated in the peregrine cities the turbulent and kaleidoscopic democratic life of classical Athens; Rome took care everywhere to secure upper-class control. The topic of interaction between the local laws and the law of Rome, Reichsrecht and Volksrecht, is much too difficult to treat here.¹⁷³ Scholars have pointed to cases in which peregrines as between each other seem to have adopted Roman legal forms (such as the mancipations we have seen in the Transylvanian tablets) ;¹⁷⁴ and they have pointed to cases in whichRomans in the provinces, and the Roman provincial courts, seem to have accepted peregrine rules, which would be natural enough in the latter part of our period when many Roman citizens in the provinces were first-generation enfranchised peregrines whose whole tradition of legal relations was Hellenic.^174a But two pro­visos are necessary. The bulk of the evidence for this process comes from Egypt, which was a special case in very many ways; and in any case the great event most vital to produce a fusion of laws, the constitutio Antoniniana making almost all free people Roman citizens, did not occur till the end of our period, so that quite apart from the extremely controversial nature of its effects they lie outside our consideration. No doubt it would be desirable to distinguish, even in our period, in the provinces, between Roman law proper between citizens, provincial Roman law when peregrines came into the Roman courts, â€?provincial practice’ (i.e. the adoption of local institutions by the Roman courts), peregrine law proper as between peregrines in their own courts, and â€?peregrine practice’ (i.e. the adoption of Roman rules by pere­grines).¹⁷* But what weight to give to these bridges is very doubtful; in the age with which we have dealt the Roman magistrate on the spot had to make such extempore synthesis as he thought fit, and did so with no help from the jurists, who had no eyes for the problem.

The complex theoretical and dogmatic structure of the Roman law, to which the treatises on Roman law mostly introduce us, with its fine distinctions of contract and quasi-contract, of locatio conductio rei and operis faciendi and operarutn, and so on, was largely a product of ages later than that which we have studied; but it is that structure at which people are inclined to look with admiration (mingled perhaps with some distaste) when they talk of the greatness of Roman law. In our period it was, for all its deficiencies and blind-spots, a more down-to-earth affair, proceed­ing on a basis of a few rigidly held principles, from case to case and example to example. But the fair-minded observer may be inclined to feel that, given their patterns of society and habits of thought (which neither the law nor anything else can just wish away), and given the fundamental perennial problem of the need to reconcile consistency and certainty of law with equity and flexibility of law, the Romans made a not altogether contemptible effort to provide, for a vast area of diverse peoples, a legal frame­work in which orderly lives could be led.¹⁷⁶

�Recently in a case before the emperor, when someone had cancelled the names of his heirs from his will, and his property was claimed as bona caduca by the treasury, there was a long dis­cussion about the legacies, especially those to the heirs whose names had been struck out. Most thought that the legacies must go too, which I would have agreed with if the testator had cancelled the entire will....

�Decision of the emperor Antoninus Augustus, consulship of Pudens and Pollio: “Since Valerius Nepos, changing his mind, cancelled his will and struck out the names of his heirs, his inheritance, according to the constitution of my deified father, is held not to pass to those who were written down.” And he said to counsel for the treasury, “You have your court.” Vibius Zeno said, “I beg you, my lord emperor, to hear me patiently: concerning the legacies what will you decide?” Antonius Priscianus, counsel for Zeno, said, “He only cancelled the names of the heirs.” Calpumius Longinus, counsel for the treasury, said, “No testament can be valid which does not contain an heir.” Priscianus said, “He manumitted some slaves, and left legacies.” Antoninus Caesar dismissed all, deliberated, recalled the court, and said, “The present case seems to admit of the more humane interpretation, that we should hold that Nepos only intended those parts to be void which he actually struck out.