Curbs on rapacity: early attempts

The most persistent abuse of the human rights of non-Romans was the extortion of money from them. In its developed form the crime was defined as â€?the unlawful removal, seizure, exaction, embezzlement or misappropriation by Roman magistrates of the property of [non- Romans]’.¹¹ Legislation to curb the mischief was first introduced in 149 BC.

The first attempt to compel restitution was made in the closing stages of the Second Punic War, at exactly the time when Scipio and others began taking an interest in humanitas.¹¹ The target of the first attempt was M.Claudius Marcellus, whose equivocal treatment of captured Syracuse had made his image so controversial.¹³ Apart from giving his men a Roman holiday against slaves and other property, Marcellus had himself removed some works of art to Rome. They included Archimedes’ globe of the world, after the great thinker had been mysteriously killed.¹⁴ In 210 the Syracusans sent a deputation to Rome to seek restitution. They begged the senate at least to order the return to the owners of what was still in existence and could be identified.¹⁵ But after some intricate footwork by Marcellus the demarche suffered a predictable fate: the senate ratified his actions at Syracuse. There was however a sop to Cerberus, for it was arranged that Marcellus, now consul for the fourth time, would exchange provinces with his colleague, Valerius Laevinus.

The Syracusan affair had an unexpected sequel. In 205 Scipio, governing Sicily on his way to Africa, restored exacted property to its Syracusan owners. He announced the move in an edict which granted actions against those who persisted in their unlawful possession.¹⁷ The edict will have been in the si quis...fecerit iudicium dabo form commonly found in the praetor’s edict. Scipio thus anticipated the legislation that would be initiated in 149; that is, he provided effective machinery. He was very much alive to Rome’s interests, for the measure was so well received by the Sicilian communities that they agreed to lend even more support to Scipio’s preparations for the invasion of Africa (Livy 29-13-14, 18). The importance of Sicily as a staging-post for Africa had undoubtedly been in the minds of those who supported the Syracusan complaint against Marcellus in 210.¹⁸

The sixty years following the attack on Marcellus brought a succession of instructive cases.¹⁹ The classic example is the proceedings against M.Popillius Laenas. Campaigning in 173, in the disaster- prone region of Liguria, he received the surrender of the Statellates. As we know, the deditio in fidem p. R. meant unconditional surrender, the terms of which would be dictated by the conqueror, but only after the surrender and in his sole discretion. There might however be preliminary negotiations before the formal surrender, and any understandings given by the Roman side carried the pledge of Roman fides and were expected to be honoured.²⁰ Scipio’s restitution of plundered property in 205 was decreed in order to safeguard publica fides, Marcellus having pledged the public faith when Syracuse surrendered to him.²¹

Laenas brushed aside the implications of deditio in fidem and proceeded to destroy the Statellates’ town and to sell 10,000 of their people into slavery. The matter was brought before the senate, which condemned Laenas’ excessive cruelty and decreed that he restore to the Ligurians �their liberty and so much of their property as could be recovered’.

Laenas refused to comply with the senate’s decree. The following year the consul P.Aelius Ligus tried to revive the decree, but his colleague, who was Laenas’ brother, threatened to veto it. The senate however exerted pressure by delaying the allocation of consular provinces. Two tribunes proposed that if the Ligurians were not restored to liberty by 1 August the senate was to appoint a special commission �to enquire into and punish the person responsible for their servitude’.

In August the senate named the urban praetor C.Licinius Crassus to preside over the commission. But Laenas, now abroad as proconsul, did not appear. The tribunes proposed that if he did not return by 13 November the commission was to proceed in his absence. For good measure the senate ruled that their freedom be restored to all Ligurians (not only Statellates) who had not been enemies since 179. At last Laenas returned and the trial went ahead. Two sessions were duly held, but at the third hearing Crassus, succumbing to corruption, adjourned the case to 15 March of the next year. This happened to be the day on which Crassus’ term as praetor would come to an end, and as the senate had appointed him in his capacity as praetor the commission would be aborted. And so, says Livy, the attempt to help the Ligurians was frustrated by a trick.²²

The case against Laenas combined extreme violations of humanitas tantamount to maiestas minuta with the wrongful receipt of money, that is, the proceeds of the slave auction. The pattern would be repeated time and again over the ensuing decades. But there was also a political background to the case.²³ Laenas had not acted alone. He and his colleague in the consulship of 173 were involved in the current policy of letting large parcels of land in Campania to the multinationals of the time, the publicans to whom the state let out the right to collect the taxes.

Nevertheless Cato was rapidly making humanitas his battle-cry. He used it again in a cause celebre in 171 (Livy 43.2.1-2). Envoys from both Nearer and Farther Spain complained to the senate about exactions from the provincials. L.Canuleius, about to take over Spain²⁵ as praetor, was directed to assign five recuperatores (â€?recoverers’) to adjudicate on each magistrate who was alleged to have exacted money. The recuperatores were to make findings on guilt or innocence before assessing the amounts to be repaid. The patroni (barristers) who would represent the provincials were to be chosen by the envoys. They chose Cato and three others. The first case heard was that of M.Titinius, praetor in Nearer Spain in 178­176. He was acquitted at the third hearing (Livy 43.2.6). Furius Philus and Matienus, ex-praetors of Nearer and Farther Spain respectively, were brought up on â€?most serious charges’ (gravissimis criminibus). But after being part-heard their trials were adjourned, whereupon both men went into voluntary exile.²⁶ It was rumoured that the patroni representing the provincials had blocked proceedings against influential men. Suspicion almost hardened into certainty when the praetor Canuleius suddenly gave up the investigation and left to take up his appointment in Spain.²⁷

Despite its inconclusive result this case, generally accepted as a true case of repetundae,²⁸ testifies to the strength of the humanitarian impulse. The â€?most serious charges’ against Furius and Matienus included not only greed and brutality, but also â€?other disgraceful acts’ (alia indigna).¹⁹ In other words, the element of maiestas minuta present in Laenas’ case was also in evidence here.

The first phase of the Third Macedonian War was a vintage year for provincial brutality. In 171 the consul P.Licinius Crassus ruthlessly plundered cities in Central Greece and carried out mass enslavements. The senate decreed that he be fined and that such of the slaves as were found in Italy be bought back from the purchasers.³¹ Similar action was taken against the naval commander L.Hortensius, who took Abdera by storm in 170, beheaded its leaders with an axe,³² and sold the population at auction (Livy 43.4.8-11). The devastation of Chalcis by Hortensius’ predecessor, C.Lucretius Gallus, had prompted an innovation. Instead of being dealt with by the senate, he was brought before the popular assembly by the tribunes and was fined one million asses³³ by the unanimous vote of the thirty-five tribes. The senate decreed freedom for the slaves and directed Gallus’ successor, Hortensius, to carry out the liberation.³⁴

A reaction was setting in against the recent chicanery. Men like Cato could now respond more effectively to the rising yeast of humanitas. But it would take one more effort by Cato to bring matters to a definite head. In 150 Ser. Sulpicius Galba defeated three Lusitanian tribes and induced them to make a deditio in fidem by promising to settle them on fine arable land. When they duly surrendered he ordered them to lay down their arms and to parade in three columns so that he might organise the distribution of land. He then proceeded to butcher some of them and to sell the rest into slavery.³⁵ The elimination of at least 8,000 Lusitanians³⁶ was greeted with horror by many people, and Cato launched his last assault on brutality.

The assault was mounted in 149, the last year of Cato’s life. He put up a tribune to propose that freedom be restored to the Lusitanians and that a commission be set up to try Galba for breaking his pledged word.³⁷ But in spite of a powerful speech by Cato in support of the proposal³⁸ Galba managed to blunt the attack. He tearfully displayed his young children to the people and commended them to the people’s protection â€?after I am gone’. This was the winning move. As Cato said, Galba snatched himself from the flames by playing on the people’s compassion for little children. The bill proposed by the tribune was rejected.³⁹