DELATORS AND THE TREASURY

What other delators do we recognise? Virtually none of those operating in the criminal courts, for every day crime was not in general of interest to either historians or jurists.

Yet, perhaps partly because of these actiones in factum, the praetor intro­duced the action of calumny, itself an actio in factum, to check malicious or vexatious accusations; the literary evidence stresses calumny in the context of penal law, but it must not be overlooked that its application was just as much to civil or fiscal litigation.^[403] Gaius tells us that an oath against calumny might sometimes be demanded; the action for calumny, for one tenth of the amount claimed, was always competent, while the counter-action (actio contraria) was restricted to certain cases. The counter-action imposed a more severe sanction because it made the pursuer flatly liable to what he had claimed from the defender; in the normal action:

No one is condemned for the one tenth unless, being aware that his case was not good, he began the action to vex his opponent, and in the hope of winning through the judge's error or injustice rather than by reason of the truth. For calumny, like the crime of theft, lies in the intention.^[404]

Perhaps the oath against calumny was imposed on one party by the praetor, rather than demanded by the other party,^[405] and linked to a praetorian stipula­tion causa cognita or an application for missio in possessionem; this would be because the praetor was providing a control for his own remedies, particularly in such cases as actions for iniuria, where there could be no predetermined sum at issue.

demanding of juristic skill. It also links with Roman social attitudes, with the relatively ready access to juristic advice that clientage might give even to the humble man. Roman society was, in general, law-using and law-abiding, as Krause had said.^[406] Horace's description of the good man as one who not only obeyed the law but also was ready to act as witness or iudex or surety is relevant here.^[407]

However, the civil penalties seem to have come to be reckoned an insuf­ficient deterrent, perhaps in contrast to the capital penalties laid down in the ordo, and the lex Remmia or Remnia was passed to control accusations more closely, probably in 91 bc but certainly before 80 bc and after the tabula Bembina. Its penalty was presumably infamy, depriving the guilty man of the right to accuse, or to act on behalf of others.^[408] The branding or tattooing of the culprit with a K, threatened by Cicero,^[409] is at this period almost certainly metaphorical, entering a K beside the name on the praetor's album. (Physical branding or tattooing was a penalty at this stage only imposed upon fugitive slaves.^[410]) It is not impossible, as Caminas held, that the penalty could as early as this be the infliction on the delator of the sanction which would have been imposed upon one successfully accused, but it is not evidenced for this period.^[411] The Romans believed generally in tit for tat: the successful prosecutor in cases of ambitus seems to have taken the rank - but not the actual office - of the one he accused, just as the peregrine or Latin accuser under the tabula Bembina received citizenship in the tribe of the one he had successfully charged; these were the spolia of successful prosecution.^[412]

The next stage in the story is the growth in the numbers of delators, partic­ularly delators to the treasury, increasingly the fisc rather than the aerarium.

failed to popularise marriage and the raising of families, but increasingly many people were liable to penalties since every household was exposed to informers' claims.... There were spies, encouraged by inducements from the Papian- Poppaean Law, under which failure to earn the advantage of parenthood meant loss of property to the state as universal parent. The spreading encroachments of the informers grievously affected all citizens, whether in Rome, Italy or elsewhere, and caused widespread ruin and universal panic.^[414]

Tacitus' remark is compatible with the lack of any legal text referring to delators in connection with penal law or procedure,^[415] although the jurists of the later Principate certainly wrote on fiscal denunciation. Yet it is noteworthy that it is at just the same period, the beginning of the Principate, as the fiscal delator seems to play a much enlarged role that the literary figure of the delator appears, a figure to some extent the construct of Tacitus.

Tacitus' picture is so convincing that it is quite hard to remember that there were indeed plots against the emperors, and also that the plundering of provincials by officials did not make Rome's Empire easier to govern. Somebody writing in the Stoic tradition was not readily going to admit the desirability of loyalty to the emperor, a loyalty particularly required in the interests of stability after the horrendous civil wars of the late Republic.

It does, however, seem likely that the problems caused by malicious accusers were more blatant in the early Empire than they had been earlier.

Fiscal delators were important for the management of the res publica.

Dealing (almost certainly) with the penalties for childlessness and celibacy, Trajan laid down that if, before a denunciation had been made, someone admitted that he did not have the right to property, whether or not it was in his possession, he should take one part and the aerarium or fisc another part.^[437] It is clear that this was viewed technically as a reward (praemium) and not an entitlement, for previous to a ruling by Trajan's successor, Hadrian, it had been argued that heirs should not get this share if the self-denouncer died before receiving it.^[438] Those who came to an agree­ment with their denouncers were taken to have acknowledged liability if they paid any money, however small a sum.^[439] But, as Marcian tells us, delation was not honourable; that was why veterans and serving soldiers could not delate. However, all persons, even senators, even women, could denounce themselves or claim for themselves along with the fisc, and did not thereby become infamous even if their action failed. It was accepted also that the reputation of those undertaking a denunciation was not injured by the act when, for example, they were seeking not a reward but revenge, or the good of their local community.^[440] As Paul put it: Delator non est qui protegendae causae suae gratia aliquid adfiscum nuntiat.^[441] Any denunciation must be backed by full documentation, and informers must publish the name of any mandator, so that he too would be liable to any punishment for calumny;^[442] suspicion of calumny was an occupational hazard. Since nobody was forced to be an informer, an informer was not free to drop his denunciation if acting under mandate, unless he could prove his mandator had withdrawn.^[443] Inter­estingly, in the absence of a delator, the burden of proof was on the fiscal advocate, for nobody could be compelled to reveal whence he had obtained something.^[444] Fiscal delation, although it must have been covered by the SC Turpillianum, remained a fruitful field for juristic commentary because the role of the fisc was growing throughout the history of the Empire, since fiscal policies changed in a way that criminal law did not, and, of course, the fisc had an interest in a huge range of transactions: the texts talk of inheritances and legacies,fideicommissa, usury, taxes (on sales, inheritance, etc) and of estates without an heir or which fell to the fisc for some other reason.

E.