NOTES

1 Introduction

1 Seneca Epistulae Morales 95.51-53. That the concluding sentence is a quotation of Terence Heautontimorumenos 77, from which our leitmotif is taken, is self-evident.

2 There are also adverbial forms, humaniter/humanitus, as well as inhu- manitas/inhumanus. These will be noticed when necessary. But our main focus is on humanitas/humanus.

3 For the text see Davies 1988: xvii-xxv.

4 Pol. I 81.5-11. Cf. I 68.3-70.7, 72.1-3, 78.10-15, 79.8-14, 80.2­

81.4. Cf. perhaps Cicero Off. 3.32.

5 Doctorow 1993:65 (abridged). Cf. perhaps Henkin 1979, prefatory note and 109-13. He notes the imperfect realisation of the Universal Declaration’s expectations, drawing attention to the controversies on political, philosophical and legal issues and the violations perpetrated by slavery, ghettos and mass murders.

6 On the modern concept in general see Owen 1978:15; Henkin 1979:5­30; Holcombe 1948:23-46; D.Weissbrodt, in Davies 1988:1-8. On the legislation of the seventeenth to twentieth centuries see Schabas 1996:15-42. On medieval and early modern theorists see Henkin 1979: �The first two hundred years of an idea’. For a concise historical survey of humanism see Guillermand 1994:194-216. On the claim that �rights’ were unknown in the classical period see Constant, 1957:1026-59; Dagger 1989.

7 See the 6th and 8th preambles and articles 2, 18, 19, 20, 28, 29, 30.

8 See chapter 4 s.v. �Early Rome: ius humanum’.

9 Despite Veyne 1993:347-8.

11 This felicitous description is used by Schadewaldt 1973:44.

12 Cicero favours the alternative expression, utilitas rei publicae. See Jossa 1964. But the two expressions have substantially the same meaning. Gaudemet 1951:467-8 and passim.

13 Cic. AdQ. fr. 1.1.27. Cf. Cic. Place. 62; Plin. Ep. 8.24.2. Also Isoc. Pan 29

14 Those studies divide broadly into two groups. The one addresses humanitas in its philosophical and general humanitarian aspects. The contributors include Reitzenstein 1907; Heinemenn 1931; Harder 1934; Stroux 1926; Büchner 1967; Boyance 1970; Schadewaldt 1973; Veyne 1993; Guillermand 1994. The other group concentrates on humanitas and the law. It includes Krüger 1899; Schulz 1936; Maschi 1948; Honig 1960; Riccobono 1965; Lapicki 1969; Mignot 1988. See also Waldstein 1964 and Gaudemet 1967, though they address a special aspect rather than legal humanitas as a whole. The theme is also broached in Bauman 1980 passim and 1996 passim.

15 Veyne 1993 comes close to an overall view, but he treats the Greek and Roman positions as a single entity, which they are not. Also, his pessimistic assessment is close to asserting that there was no such thing as human rights in antiquity.

16 See chapter 8, s.v. �Freedom of speech’ and �Social Welfare: the alimenta’.

17 With the probable exception of Veyne 1993.

2 Human rights: the Greek experience

1 See also Heinemann 1931, passim. The word is not noticed by RE (except for a specialised piece on to philanthropon), OCD or Kl.P.

2 Diog. Laert. 9.38. See also Dem. 19.139; Div. Arist. col. 26, vv. 10, 19.

3 Plato Namoi 713 D. Cf. Symp. 189 C; Aesch. Prom. 11, 28; Diod. III 60.2, 61.4, 72.4; Plut. Num. 4.3.

4 It was described as �finery for the fortunate, a refuge for the unfortunate’. Cf. perhaps LSJ s.v. paideia. To Polybius the ultimate mark of savagery was the inability of philanthropia, even when moulded by paideia, to control �the cancer’. Pol. 1.81.5-11. See also Gell. NA 13.17.1.

5 E.g. Pol. 28.17.11: at the conference between the Romans and the Rhodians the two commanders compete in the kindness of their language. Diod. 13.69.1: Alcibiades greeted the crowds in kindly fashion. Plut. Cat. Mai. 3.8: Scipio was pleasant in his friends’ company but was never led by his courteous lifestyle to neglect important matters. See also Xen. Cyr. 11.2.1; Isoc. Ep. 5.2; Dem. 45.4, 19.139.

6 The evidence is largely epigraphic. See Welles 1934:369-70 with documents nos. 67, 6.D, 13, 15, 22, 48.A, 64, 66. See also Kortenbeutel 1940; Sherk 1969 passim. On the literary evidence see Walbank 1957­79:2.332-3, 349-50, discussing Pol. 12.5.3. See also Diod. 26.17.1, 32.4.2; Jos. Ant. Iud. 14.10.2. Further epigraphic evidence P. Ryl. 296 (second century AD): �Your Clemency’; and SIG 564.12-14, 669.21, 748.46, 502.20, 548.3, 456.8, 888.9-10, 481.7.

7 Despite W.R.Paton, Loeb edn of Polybius ad loc.

8 Xen. Ages. 1.22. Cf. ibid. Cyr. 1.41, 7.5.72-4; Diod. 32.4.2; Pol. 1.79.8­11.

9 On this see A.Harder, Euripides’ Kresphontes and Archelaos, Leiden 1985, 5-7, 276.

10 Rose 1950:186-7.

11 See TLG s.v. philanthropia Xenophon.

12 It occurs in Xenophon’s account of the trial of the Arginusae generals. Hellen. 1.7.1-35. See further at n. 24 below.

13 See TLG s.v.

14 Dem. 18.112, 21.43, 24.156. But a law could also be motivated by misanthropia. 18.112.

15 24.192: kata pasas tas poleis. It is Demosthenes’ expression for the ius gentium which also played a part in Roman humanitas.

16 Some advocated the treatment of all Greeks as kindred. But others defined the privileged area more narrowly, as for example Demosthenes on the Demos’ attitude towards �Athens and her allies’ (above). See also Demosthenes on Thebes and Orchomenus (above). Also Aristot. On Vices and Virtues 1250 B; ibid. Frag. Vat. (TLG s.v. philanthropia Aristotle); Diod. 13.20-32. Natural enmity towards strangers was common in antiquity. Cf. Ziegler 1972 with bibliography at p. 69 n. 1. Add De Martino 1973:13-21.

17 On his position see Veyne 1993:346-8.

18 That is, in the Olynthiacs and Philippics. Dem. I-IV, VI, IX, X.

19 Dem. 18.231; Diod. 32.4.2.

20 Aristotle’s thoughts on philanthropia do not include Panhellenism. See TLG s.v. philanthropia Aristotle. Aeschines’ conduct on the peace mission to Philip (Bauman 1990:89-94), equivocal as it was, is not enough to make him Philip’s adviser.

21 Panegyricus 29: Demeter’s bounties of crops and mystic rites made Athens so beloved of the gods and so philanthropic that she shared them with the whole world. Cf. Goodenough 1928:55-7: the sharing even included revealing the mysteries to foreigners.

22 See Isoc. Ad Nicocles 15, 16, 19, 22-24, read with Philip 114, 116.

23 Thuc. 3.81-4 adapted. Even now he does not use the word philanthropia although his �general laws which give hopes of salvation’ come perilously close to machinery for the protection of human rights. �To nullify general laws’ fairly expresses the Greek. Cf. R. Crawley’s translation, Everyman’s 1910:172. R.Warner, Penguin translation 1972:245 gives �general laws of humanity’. This seizes the implication of Thucydides’ words but it is not what he says.

24 On this trial see Bauman 1990:69-76.

25 The definitive work on the Thirty is Krentz 1982. On the legalities see Bauman 1990:78-80.

26 On the law of 403 see Aristotle AP 39.1-6. Discussions: Dorjahn 1946; Ostwald 1986:497-509.

27 Cf. Cic. Phil. 1.1: �I laid the foundations of peace and renewed the old precedent of the Athenians. I even adopted the Greek word [amnestia, adeia] which they used to sedate discord. I proposed that every memory of discord be erased in eternal oblivion.’ Cf. Dio 60.3.5-7, 4.1-2; Oros. 7.6.5.

28 See the references in n. 6.

29 See Welles 1934: documents nos. 13, 15, 22, 66, 67, 31, 32, 52. Also the remarks of Walbank 1957-79:2.332-3 apropos of Pol. 12.5.3.

30 P. Tebt. 5. Also of interest: the address to a superior, he se philanthropia, �Your Clemency’ (P. Ryl. 296, second century AD); and the annual subsidy to a city to maintain its laws, ancestral constitution and religious privileges (Welles 1934:196).

31 See TLG s.vv. philanthropia, Polybius, Diodorus.

32 For an account of Polybius’ career see Walbank 1957-79:1.1-6.

33 Pol. I 68.3-70.7, 72.1-3 (cf. Xen. Vect. 3.6), 78.10-15, 79.8-14, 80.2­81.11.

34 Should probably read �Hamilcar’. In any event it is not the Punic general of the Second Punic War.

35 Diod. 24.5-10, 25.3.1, 25.5.2. Cf. Pol. I 78.13-15, 79.8, 84.8, 86.4­7. The alternative to philanthropos, viz. anthropinos, has only a limited range. On anthropotes see Schadewaldt 1973:52 n. 25.

36 Pol. XXX 12.3, 13.4,, 32.12; XXXII 5.3-14.

37 Pol. II 38.1-8, 57-8, 60.7 adapted.

38 On Didorus see R.Drews, AJP 83 (1962), 383-92; M.von Albrecht, Kl.P. 2 (1967), 41-2. He does not however ignore international affairs altogether. See for example Diod. III 12.3, 60.2, 61.4, 72.4, V 7.7. Also XIII 69.1, 96.1, XIV 42.1, 102.2, XVI 79.2, XVIII 14.1, 46.2, XIX 9.6, 91.5, XXI 16.6, XXVIII 15.1, XXIX 22.1, XXXI 7.1.

39 Also notices of Cyrus, Pittacus the Mytilenian lawgiver, and Charondas of Catania. Diod. IX 24.1, 11.1 (cf. X 28.3), XI 67.2, 89.7 (cf.

40 Diod. XXXIV/XXXV 2.13, 2.33, 2.39.

41 Except for to philanthropon.

3 Humanitas Romana

1 See also the adverbial forms humaniter, humanitus and the opposite values, inhumanitas, inhumanus. OLD, TLL s. vv. Some writers define philanthropia by reference to humanitas rather than the reverse. EST; Heinemann 1931.

2 For these see n. 1.

3 Cic. Leg. 3.1, Fam. 12.27. Cf. Vell. 2.116.3.

4 The existence of this group is inferred from Cic. De Amicitia 69: �Equality is often over-shadowed by pre-eminence, such as that of Scipio [Aemilianus] in our circle, so to speak’ (in nostro, ut dicam, grege). The inference has had a turbulent career. In favour: Schadewaldt 1973:52-4 with literature. Against: Astin 1967:294-306 with literature. It is worth noting that grex Iuliae apropos of Augustus’ daughter certainly denotes a cohesive entity. See Bauman 1967:198-201; 1992:113-16 with Sen. Brev. Vit. 4.5, Ben. 6.32.1-2, Plin. NH 7.45.149.

5 See chapter 5.

6 Dem. 8.33, 13.16-17; Thuc. 2.40.

7 Pol. 36.9. See 38.19-22 on his presence at Carthage. Walbank 1957­79:3.663-4 thinks that by presenting the views as those �of the Greeks’ Polybius can state them openly without committing himself. He certainly gives no more than grudging approval in the end. For further discussion of this question see Musti 1972:1163. On surrender at discretion (in fidem populi Romani) see the last section of chapter 4, the last section of chapter 6, and passim.

8 Pol. 38.1, 39.2, including the curious claim that the Greeks bequeathed their feelings of desolation to their descendants, whereas the total destruction of Carthage deprived her of future generations who would feel the pain. Carthage is therefore supposed to be better off.

9 Though it has been surmised that the destroyer of Corinth, L. Mummius, was a member of the Scipionic Circle. See Aymard & Auboyer 1956:220.

10 Aemilianus had been adopted by a son of Scipio Africanus. As one of his cognomina was Africanus, he is often referred to as Scipio Africanus Minor, but �Aemilianus’ is less confusing.

11 On this episode see Walbank 1957-79:3.438, citing Pol. 30.15, Livy XLV 33.1-8, 34.1-9, Strabo 7.7.3, App. Ill. 9, Trog. Prol. 33, Eutrop. 4.8.3, Plin. NH 4.39, Plut. Aem. 29.1-3.

12 E.g. Diod. XXX 8.1, 20, 22, 23; XXXI 8.4-5, 8.6-9.1, 9.4, 11, 25­26.2, 27.3.5. But he does say elsewhere that Perseus was kept in an Alban dungeon and depended on common criminals for food. Diod. 31.9. Cf. Plut. Aem. 37.

13 Cic. Senect. 18-19, Off. 1.79; Vell. 1.12.7, 1.13.1; Flor. 1.31.4; Vir. Ill. 47.8. Cf. Livy Per. 49; Plin. NH 15.74; Diod. 34.33.2-3; Plut. Cato 27.2.

14 What follows is based on the findings of Capelle 1932 with modifications and amplifications.

15 Cicero’s debt to Panaetius is generally recognised, at least in respect of the first two books of De officiis. Apart from Capelle, see Fedeli 1973:361-75; OCD s.v. Panaetius. See also Cic. Off. 2.60, 3.7; Att. 16.11.4.

16 Carneades had denied this, claiming that rulers ruled only for themselves.

17 Capelle 1932:104: �Das eben ist hier die Wesentliche: die Versittlichung des imperialistischen Gedankens durch die mittlere Stoa.’

18 Astin 1967:300-1 doubts both Panaetius’ formulation of a blueprint and his communication of it to Aemilianus. The attack is aimed at the inference drawn by Capelle from Cic. Rep, 3-32-41. But Schadewaldt 1973:56-8 with 57 n. 43 draws an important parallel between Cic. Ad. Q. fr. 1.1.27 and Off. 1.85-89 (cf. Harder 1934); he also compares Off. 1.85-89 and Pol. 31.25-29. I would add a saying of Aemilianus: �Unbridled and egotistical men should be given a course in reason and learning [ratio et doctrina] to help them to understand the frailty of human affairs [res humanae] (ap. Panaetius via Cic. Off. 1.90). In other words, those who overstep the bounds of moderation prescribed by humanitas should be given a refresher course by paideia. Also, Augustine (Civ. Dei. 19.21 ad Cic. Rep. 3.32-41 which is spoken by Laelius, a member of the Scipionic Circle): �They are part of the argument for the justice of... imperialism in which it is claimed that some nations are naturally fitted for and benefited by subjection to others.’ See also Cic. Rep. 3.41: �Ti. Gracchus.violated the treaty rights of our allies and the Latins. If this lawless habit causes those who have obeyed us willingly to be held down by terror alone [cf. Diod. 32.1-2, 4]. then I fear for the stability of the Republic.’ On 144 as the date of Panaetius’ visit see H.Dorrie, Kl.P. 4 (1972), 447. Astin 1967:297 considers 140-139 the only reliable date for Aemilianus’ contacts with Panaetius. OCD s.v. Panaetius puts him in Rome �in the 140s’.

19 On various conjectures as to the date and authorship of Ad Herennium see Caplan 1954: vii-xv. The Rhodian rhetorician, Apollonius Molo, visited Rome in 87, which may be a pointer to the date of the treatise. H.Gams, Kl.P. 1 (1964), 1175, thinks Cicero’s De inventione preceded Ad Herennium. Cf. Caplan 1954: xxv, dating Cicero’s work (his first) to c. 91. Cicero’s first use of humanitas: Quinct. 51.

20 Pol. XXXI 25.2, 25.8, 25.9, 26-8.

21 Pol. XV 17.3-7, 4.1-11, X 34.9, 38.1-4, XI 27.3-30.5, XI/XII 2a.4.

22 This despite his 170 uses of philanthropia altogether. TLG s.v. philanthropia Plutarch.

23 See TLG s.v. philanthropia Appian.

24 Ad Herenn. 4.16, 22. There is a reference to Aemilianus in 4.19, �Scipio razed Numantia, destroyed Carthage, brought peace, saved the state’, but it is not a humanitas passage.

25 Cf. n. 19. Caplan 1954: xxv points out that the work contains no references to any event that took place during or after the Marsic (Social) War.

26 So Lesky 1957/8, citing Menander fr. 484 K: hois charien est’ anthropos...an anthropos ei.

27 Astin 1967:305-6 on repartee. Veyne 1993:353 on meddling. Neither argument, nor that of Jocelyn 1973, weakens Seneca Ep. 95.51-3 in any way.

28 Sc. Mariotti, Kl.P. 5 (1975), 600.

29 He died in 159, when Aemilianus had not started on the public career that was to be the basis of his influence. However, if he began his association with Polybius as early as 167—M.Deissmann-Marten, Kl.P. 5 (1975), 49—there is no serious objection to a similarly early link with Terence.

30 E.g. Ter. Adelphi 687; Heaut. 99. On Plautus’ uses see G.Lodge, Lexicon Plautinum, Leipzig 1924, vol. 1, s.v. humanus. On Ennius see L.Mueller, Q.Enni Carminum Reliquiae, Petersburg 1884, s.vv. humanitus, humanus. If the editor’s juxtaposition of Si quid me fuerit humanitus, ut teneatis and Mettoeo(que) Fufetioeo (p. 80) reflects a linkage between the two fragments in Ennius’ actual text, there may have been a reference to Tullus Hostilius’ brutal treatment of the Alban leader, Mettius Fufetius, treatment that Livy 1.28.6-11 described as the first and last Roman punishment to disregard the laws of humanitas. This would lift the reference above the pedestrian level.

31 The Self-Torturer was produced in 163.

32 See no. 30.

4 Human rights prior to humanitas Romana

1 Livy 1.28.9-11. Cf. Varro fr. Non. p.287 ME: imperiosius quam humanius; Dion. Hal. 3.30.5-7.

2 Cf. chapter 3 n. 30.

3 Gaius 1.1.1. For an account of ius gentium see Jolowicz 1972:102-7. Also Wieacker 1988:444-6; Spruit 1992:76-80.

4 Jolowicz, loc. cit. Also Villey 1969:73-84.

5 Dem. 24.192-3; 25.87-9. Cf. also Pol. II 38.1-8, 57-8, 60.7.

6 Livy IV 17.2-4, 19.3-5. Foedus humanum does not imply a neutral sense (of �human’ as opposed to ?). Philanthropic adjectives are very common with reference to treaties. See below passim.

7 See the references in n. 5.

8 Livy 29.8.8-9.12; 37.7.15; 37.54.15-17.

9 Livy XXIX 9.10, 21.1, 22.9, XXXIV 44.6.

10 Bauman 1967:12-15 and passim.

11 See chapter 6.

12 Bauman 1978:22 with Cic. Balb. 34-5.

13 Livy 37.7.15. See also Cic. Balb. 36, Deiot. 19; Plin. Ep. 8.21.1; Apul. Met. 10.17.

14 On the frustrating negotiations leading to the treaty see Dahlheim 1968:34-6; Bauman 1983:185 with Pol. 20.9.3-10.12, Livy 36.27.1­28.6.

15 The locus classicus for the maiestas treaty is D. 49.15.7, written by Proculus, head of the Proculian law school, in the mid-first century AD.

16 Bauman 1967, 1974, 1983 passim. Briefly, the defence to a charge of diminishing the maiestas of the Roman people was that, far from diminishing it, one had actually preserved it. This applied equally to the maiestas treaty. Cf. Cic. Balb. 35-6: �The treaty between Rome and Gades contains a clause not found in all treaties—“let them courteously preserve..The word conservanto is more appropriate in laws than in treaties because it implies a command, not a request.’

17 Livy 37.54.15-17 adapted. We also have Polybius’ version of the speech. Pol. 21.23.4-9. It is the same as Livy in substance, but omits the Rhodians’ praise of themselves, including their renown for humanitas doctrinaque and their patrocinial relationship with Rome.

18 Bauman 1983:220-2.

19 That is, the treaty of 226 excluding Carthage from interfering north of the R.Ebro in Spain. On this see EHampl, ANRW I 1 (1972), 428-37. There is also talk of an abortive treaty prior to Carthage’s final defeat. See below. In Pol. 15.17.3 Scipio appears to accuse them of having violated both those treaties. But the second one is described in Pol. 15.1.2-4 as the gravamen of Scipio’s complaint.

20 Pol. 15.17.3-7. On the terms offered by Scipio see Pol. 15.18, Livy 30.37.1-6, App. Pun. 53-4, Dio 17.82, Zon. 9.14.

21 On �the common laws of mankind’ see the references in n. 5. It is of course the ius gentium.

22 On these various developments during the Second Punic War see Bauman 1992:22-5, 27-8, 52-9, 61-3; 1996:92-7. On Licinius Crassus see Bauman 1983:92-110.

23 See the references in n. 27.

24 Plut. Marc. 21.3-4. Cf. Livy 27.16.8. But in Fab. 22.5-6 Plutarch says that Fabius fell short of Marcellus in mildness and philanthropia.

25 See chapter 6.

26 Pol. 10.15.4-5. Cf. Livy 26.46.3-10.

27 The distinction in the text between the two forms of capture represents the optimum position as far as deditio in fidem populi Romani is concerned. In practice commanders to whom a deditio had been made allowed themselves considerable latitude. See for example Harris 1979:74-7. Also Dehlheim 1968:48-52; De Martino 1972-4: 2.54­63; Ziegler 1972:94-6; Bauman 1978:30 n. 16; Volkmann 1990: passim.

5 Human rights in the Late Republic: Cicero

1 He has some 150 uses of humanitas and 250 of humanus. See TLL and Merguet s.vv.

2 See chapter 7.

3 As against that, the following uses occur in works of Sallust’s contemporaries: Ad Herennium: five of humanitas; Caesar: four humanitas, three humanus; Varro: three humanitas, ten humanus; Nepos: two humanitas. For Caesar see C.M.Birch, Concordance and Index to Caesar, Hildesheim 1989. For the others see TLL s.vv.

4 Twenty-seven uses in all. See J.Rapsch & D.Najock, Concordantia in Corpus Sallustianum, Hildesheim 1991.

5 Reitzenstein 1907:6-7; Heinemann 1931:305; Harder 1934:64, 74; Schulz 1936:190-2 (but cautiously); Honig 1960:28-9, Büchner 1967; Boyance 1970. Recent subscribers include Schadewaldt 1973. For this and other reasons his third phase in the evolution of humanitas is the least impressive part of his case. His remarks about Cicero are apparently based on the (unpublished) dissertation of J.Meyer, â€?Humanitas in Cicero’ which I have not seen.

6 A few random examples are Cic. Arch. 3; Balb. 18; Cael 54; Mur. 61; Att. 5.1.3, 12.44.1; Fam. 2.17.6, 10.5.2; Ad Q. fr. 2.3.5; Orat. 3.29.

7 Cicero’s principal venue was the jury-courts for a number of crimes that dominate the criminal courts of the first century BC. On these iudicia publica or quaestiones perpetuae, each made up of a magistrate sitting with a number of iudices (jurors), see Kunkel 1974:33-110; Jones 1972:43, 48, 52, 54-9, 92; Robinson 1995:1-8, 10, 12, 21, 89, 90; Bauman 1996:21-34. The old iudicium populi, trial by the people at the instigation of a tribune or aedile, still surfaced occasionally in Cicero’s day. On this process see Bauman 1996:9-20. See also Jones 1972:4-6, 11, 17-18, 25-6, 55, but caution is needed because of his views on provocatio ad populum.

8 Cf. comiter in the maiestas treaty. Chapter 4 above.

9 Off. 1.30; Leg. 1.33.

10 For the specific acts that had earned Quintus this accolade see Ad Q. fr. 1.1.25. I do not pretend to be able to reconcile this with the statement later in the letter, that Quintus’ bad temper made everyone long for his humanitas. Ad Q. fr. 1.1.37-8.

11 Cic. Div. in Caec. 55; Verr. II 3.212-216; Ps.Ascon. 187, 259 St.

12 Place. 9-12, 16-19, 24, 57, 60 adapted. Mithridates is the ruler of Pontus who wrote to the Greek cities of Asia Minor, calling on them to kill Roman citizens. He avoided all references to Rome’s hegemony, thus undermining maiestas p. R.

13 Off. 1.34-5. Augustus took a similar position on sparing the conquered. RG 3.2, discussed in chapter 7.

14 Off. 1.34-5. On deditio in fidem p. R. see chapter 3 n. 7, chapter 6 n. 20 and below passim.

15 This is further shown by his laudation of the XII Tables at the expense of Greek philosophy. Orat. 1.193-7. Cf. Bauman 1998:197-8. But the matter was contentious. Caesar unequivocally supported borrowing. Caesar ap. Sall. Cat. 51.37.

16 On the Roman scene this does not only mean the death sentence. It includes punishments which leave the offender alive but inflict the highest diminution of status (capitis deminutio maxima) on him, such as deportation to an island accompanied by loss of citizenship and confiscation of property. The context will show the sense in which the expression is used here. But in order to cut down on ambiguity we will for the most part use more specific expressions such as �the death sentence’.

17 See chapter 9 and elsewhere passim.

18 Cicero was consul at the time of the speech.

19 Crux in Rab. perd. 11, 16 but arbor infelix in 13. That suspension on �the infertile tree’ means death by beating, not by crucifixion, see W. Oldfather, TAPA 39 (1908), 49-72; Cantarella 1991:175-206. One need only add that in Livy’s account of the trial of Horatius in the regal period, arbor infelix cannot possibly mean that crucifixion, which until the Principate was exclusively reserved for slaves, was inflicted on someone who was not only a free citizen but a hero. See Livy 1.26.2­6.

20 On the laws in question see at n. 30 below.

21 Cic. Rab. perd. 10, 12-13, 15-17, 32.

22 His only use of it in the speech is in a stereotype. Rab. perd. 26.

23 Cf. Bauman 1996:41-4. For some of the literature see ibid. 173 n. 38.

24 As far back as 249 BC the tribunes of the plebs had laid down a ban on double jeopardy. Schol. Bob. p. 90 St.

25 The paradigm case is the trial of Horatius in the regal period. Livy 1.26.2-6. On that and subsequent employments of the duumviral process see Bauman 1969.

26 This is made clear in Livy 1.26.6: the dread formula ran thus: �Let the duumviri pronounce him guilty of treason.’ Also 1.26.7: they considered that they could not even acquit someone who was innocent. They were simply a trigger to set off provocatio ad populum, the appeal to the people by the condemned man. On provocatio see below.

27 Cf. n. 26. Cicero calls provocatio �the patron of citizenship and the champion of liberty’. To Livy it is �one of the two bastions for the defence of liberty’. Cic. Orat. 2.199; Livy 3.45.8. Cf. Cic. Rep. 2.53­5; Livy III 55.4, 56.6, X 9.4. I do not propose going into the labyrinthine controversy as to the history and meaning of provocatio, especially its relationship to the tribunician criminal process. For some of the literature see Bauman 1996:165 n. 5. Suffice it to say that at Rabirius’ trial it meant exactly what Livy 1.26.2-6 says it meant at Horatius’ trial, an appeal to the people against the mandatory conviction by the duumviri.

28 That is the meaning of Cicero’s assertion that �I was responsible for abolishing the perduellio procedure [= taking the duumviral penalty out of the case]; it was by my counsel, merit and authority that [the senate] rejected the cruel, savage penalty.’ Rab. perd. 10, 17. This was the only change. It was proposed by Cicero to the senate after the duumviral condemnation and Rabirius’ exercise of provocatio. That appeal had brought into play a regular trial by a tribune (Labienus) and the popular assembly. There was ample time during the preliminary stages of the tribunician process to go to the senate.

29 Suetonius Caes. 12 says that the barbarity of the duumviral process persuaded the people to acquit. That is quite possible. In his speech Cicero was still dwelling on the savage penalty although it had by that time been taken out of the case. But Dio 37.27.3 says that the people were on the point of convicting when Metellus Celer struck the flag on the Janiculum. Dio is probably right.

30 On the lex Porcia see for example J.S.Ruebel, �The Political Development of Cato Censorius’, Diss. Cincinnati 1972:133-6. See also D.Kienast, Cato der Zensor, 1954, repr. Rome 1973:90-2; A.E. Astin, Cato the Censor, Oxford 1978:22. On the lex Sempronia see Ungern-Sternberg 1970:48-54.

31 I do not propose dealing with the other great forensic episode of Cicero’s consulship, the trial of the Catilinarian conspirators at which Cicero bypassed the jury-court for maiestas by having the senate declare the men enemies, hostes of the Roman people, which exposed them to summary execution without trial. It can be shown that Cicero was perfectly consistent. The Populares had recharged Rabirius in order to launch another attack on the senatus consultum ultimum, the senate’s �last decree’ which had periodically suspended constitutional guarantees since its invention for use against Gaius Gracchus. Cicero made it clear that he was defending Rabirius in order to defend the s.c. ultimum. Rab. perd. 1-4. He was doing so in the public interest. He had exactly the same motive in the Catilinarian affair. Humanitas was always exposed to qualification by utilitas publica. On these matters see for example Bauman 1996:38-49 with literature.

32 Cic. Orat. 1.53-4, on which see above.

33 Cic. Phil. 11.8-10, discussed in chapter 1.

34 On his position in the Catilinarian affair see n. 31 above.

35 On the games see chapter 9.

36 Cf. Bauman 1996:13-18, 55. An amplified version is presented here.

37 Voluntary exile was not restricted to cases of capital punishment. Bauman 1996:14-15, 16-18. Jones 1972:14 doubts whether heavy fines were evaded by voluntary exile, but he overlooks cases much later than Camillus. He also overlooks the evidence for its exercise even by humble offenders.

38 Possibly three days for Rome and thirty for Italy, although those limits are not attested until the Early Principate. Bauman 1996:75.

39 Cf. Bauman 1996:26-9. Strictly speaking the lex did not actually impose the interdiction. It ordered that it be done: aqua et igni interdicatur, �Let him be interdicted.’ It was then for the magistrate to carry out the law’s command by issuing an edict of interdiction.

40 Polybius means �the centuries’, since he is referring to capital trials which went to the comitia centuriata. He also does not know that the facility was available after condemnation as well as before it.

41 But not in the legal texts. See Coll. 12.5.1, 15.2.1; Gai. 1.128; D. 47.9.12.1, 48.13.3, 48.19.2.1; PS 5.29.1.

42 Cf. Pol. 6.14.7: hekousion heautou katagnonta phugadeian, �sentencing themselves to voluntary exile’. The name �voluntary exile’ was invented by Polybius.

43 Cic. Mur. 3, 5, 46-7, 67, 89; Sest. 133; Vat. 37. Cf. Dio 37.29.1. The penalty was sub-capital; the offender retained both his property and his civic rights.

44 Sall. Cat. LI 14, 18, 21-2, 39-40; Cic. Cat. 4.6, 7.

45 Cf. Jones 1972:77-8. Cicero’s execution of the Catilinarians does not affect it—at least not technically. He claimed that they had lost their civic rights retrospectively to the time of their crime.

46 Dem. 18.112, 21.43, 24.156, 24.192-3.

47 Cic. Balb. 19, 62; Cluent. 29; Suit. 92; Verr. II 5.111; Cluent. 95 (the editors’ bracketing of vestra sapientia [et humanitate] is mistaken—cf. Cluent. 29).

48 Cic. Quinct. 49-51, 97. Cf. Flacc. 24, Mur. 65.

49 D. 11.3.5 pr. Poaching of slaves was such a problem in Ulpian’s day that the Fabian law on kidnapping was passed. See Bauman 1996:110­14.

50 Bauman 1989:263-72.

51 On this belief see for example Schulz 1936:190: �Wherever [humanitas] is found in classical texts it has been interpolated.’ But apart from the evidence in our text, VIR does not include D. 11.3.5 pr. among the humanitas passages that it lists as interpolated.

52 Besides being a member of the consilium of Marcus and Verus, Julian is described by Marcus as lulianus noster, Salvius lulianus amicus noster, both in D. 37.14.17 pr. and in a letter to Fronto Ep. 4.2, pp. 60-1.

6 Human rights in the Late Republic: curbs on ill-treatment

1 Cf. D. 48.4.1.1, 4 pr.: �The charge of maiestas lies against those who have so acted as to cause foreign kings to be less submissive to the Roman people, or foreign peoples to become enemies of the Roman people instead of friends.’ See also Bauman 1967:8.

2 Commonly rendered in modern works as �extortion’. Perhaps �exaction’ is less confusing, given the usual meaning of �extortion’. As far as possible I prefer to keep to the Latin repetundae. Strictly speaking it only means the restitution of exacted property, but Tacitus does have repetundarum a sociis postulatum. Ann. 3.66.1-2.

3 In the case of the patrician matron Claudia, on which see Bauman 1967:28-9; 1992:19-20.

4 Sen. Rhet. Contr. 9.2 pr.; Livy 39.43.2; Plut. Cato 17.3-4. Livy 39.42.10-12 claims that Flamininus killed the man himself.

5 Sen Rhet. Contr. 9.2 (25) p. 382 M: Livy 39.42.5-43.5; Cic. Senect. 42; Val. Max. 2.9.3, 4.5.1; Plut. Cat. Mai. 17.1-6, Flam. 18.2-19.4; Vir. Ill. 41 A; ORF Cato frs. 69-71. Valerius Maximus’ �besmirched the maiestas of his high office’ is paralleled by Cicero’s cum probro privato coniungeret imperi dedecus. For some of the modern literature see Bauman 1983:214 n. 416.

6 Livy 39.42.7; Cic. Senect. 42; Plut. Flam. 19.1.

7 Livy 39.42.7. He does not say that the charge would have been maiestas minuta, but that is clear from Valerius Maximus and Cicero (n. 5 above).

8 Livy 39.43.5; Plut. Cat. Mai. 17.5-6, Flam. 19.2.

9 Pol. 18.46; Livy 33.32.5. Cf. Badian 1958:72-5.

10 Even Cicero draws a distinction in his letter to Quintus. Ad Q. fr. 1.1.27. Cf. the citation in chapter 1 above. See also Cic. Flacc. 62; Plin. Ep. 8.24.2. Also Isoc. Pan. 29.

11 Cf. lex Acilia 1-3. FIRA 1.84. See also Eder 1969:6.

12 We do not have evidence of rapacity in Sicily or Sardinia over the decades following the First Punic War. It would be naive to suppose that it did not occur.

13 Cf. chapter 4 s.v. �Primacy in humanitas: rival contenders’.

14 Cic. Verr. II 4.121, Rep. 1.21; Livy XXVI 21.6-9, 31.9; Plut. Marc. 22. Archimedes had, much to Marcellus’ regret, been killed by a soldier who did not know who he was. Livy XXV 31.9-10. But it was Marcellus who took the globe of the world to Rome.

15 Livy 26.30.10. Eder 1969:10 and passim, denies that this or other cases until 171 are repetundae cases because they do not use the judicial machinery needed to enforce restitution. Even without that they reflect relevant thinking, but in fact some of them do employ such machinery. See for example in 205 (below).

16 Livy 26.29-32, making the exchange antecedent to the debate in the senate. That is no doubt possible if there was a prearranged understanding with an influential group of senators. On Marcellus’ speech in the senate see the end of this chapter.

17 Livy 29.1.15-17: partim edicto, partim iudiciis etiam in pertinaces ad obtinendam iniuriam redditis suas res Syracusanis restituit.

18 For some of the names involved in the attack see Eder 1969:11-12, although he ascribes the attack to the tired stereotype of personal enmity. One might add the name of M. Cornelius Cethegus, praetor in Sicily in 211 and credited with organising the Syracusan demarche against Marcellus. Livy 26.26.8. He was a gentile relative and friend of Scipio. Scullard 1970:197.

19 For full lists see Eder 1969:15-57; Volkmann 1990:91-105 with 71­91. See also Bauman 1983:200-7.

20 On this type of surrender see Ziegler 1972:94-6 with n. 219; Volkmann 1990: passim.

21 The Syracusans had probably made a deditio in fidem to Marcellus in 211. Eder 1969:11 n. 1. That is why Scipio’s edict of 205 was issued in order to safeguard publica fides. Livy 29.1.17.

22 Livy XLII 8.1-9.6, 21.1-5, 21.8-22.5, 22.7-8.

23 I here summarise, with amplifications, Bauman 1983:157-60, 170, 175-6, 181, 200-02, 207 n., 212-13, 218-19, 251 n., 260, 373.

24 Eder 1969:29 offers a different interpretation of the case. He thinks that Laenas’ violation of the deditio in fidem was seen as a bad precedent for hoped for surrenders in the forthcoming Third Macedonian War. But were those who persuaded the praetor to abandon the commission worried by this?

25 The Two Spains, separately organised since 197, were temporarily combined for the purposes of the Third Macedonian War. A.C. Schlesinger, Loeb edn of Livy, xiii 7 n. 3.

26 Livy 43.2.8-11. Furius went to Praeneste, Matienus to Tibur—both places noted by Polybius in his account of voluntary exile.

27 Livy 43.2.1-12. The rumour of patronal collusion (ibid. 43.2.11) is unlikely to have applied to Cato. Cicero says that Cato’s championship of the Spaniards brought him many bitter enemies. Div. in Caec. 66. If there was talk about Cato, it was a calumny put out by his enemies.

28 It is even so accepted by Eder 1969:34. Kunkel 1962:12-13 has no difficulty in accepting it.

29 Livy 43.2.10, confirmed by the epitome: several praetors were condemned for administering their provinces with greed and cruelty. Per. 43. Condemnation does not apply to Furius and Matienus, but the epitomator may have found an aquae et ignis interdictio in Livy. Livy himself says that the Spanish envoys complained to the senate about avaritia superbiaque et alia indigna. 43.2.2-3.

30 How was restitution enforced when the accused left before a verdict? In the ordinary course condemnation and assessment were followed by execution against property. Presumably a plebiscite of the people was required against the fugitive, on the analogy of the interdiction in capital cases.

31 The repurchase was made by the authorities. Livy Per. 43; Zon. 9.22.6.

32 A special affront since it was used against condemned criminals. Caracalla criticised the praetorians for killing the jurist Papinian with an axe instead of a sword. SHA Carac. 4.1.

33 This amount was presumably paid into the treasury and used to fund repayments. Cf. lex Acilia 59-60, 66.

34 Livy XLIII 7.10, 8.1-3, 8.7-10. It is likely that the fine imposed on Licinius Crassus (above) also emanated from the plebeian assembly, with the senate merely giving preliminary approval, as was often done both in criminal and other matters.

35 Sources in MRR 1.457, 459; Eder 1969, 51. Add Tac. Ann. 3.66.2.

36 So Val. Max. 9.6.2. Suet. Galb. 3.2 makes it 30,000, all massacred. But enslavement was the greater part of these exercises. There was not much of a market in corpses.

37 Livy Per. 49; Cic. Brut. 89. The broken pledge is in App. Iber. 60. The tribune proposing the bill, L.Scribonius Libo, wanted a special commission (quaestio extraordinaria) under a praetor. Cic. Orat. 1.227­8, Brut. 89; Livy 39.40.12; Val. Max. 8.1 abs. 2. The alternative tradition in which Galba was actually prosecuted and acquitted has the solitary evidence of Livy Per. Oxy. 49. Both Tac. Ann. 3.66.2 and Vir. Ill. 47.7 have accusatos in a general sense. Cicero’s L.Libone...rogationem in Galbam privilegi similem ferente (Brut. 89) is decisive. There would not be any mention of a privilegium if an actual prosecution had been launched.

38 It was incorporated in his historical work, Origines, shortly before his death. Cic. Brut. 89. Cf. Cic. Orat. 1.227; Livy 39.40.12, Per. 49; Val. Max. 8.1 abs.2; Plut. CatMai. 15.4; Tac. Ann. 3.66.2; Vir. Ill.

39 Cic. Brut. 90, Orat. 1.228; Livy Per. 49, Per. Oxy. 49; Val. Max. 8.1 47.7. abs. 2; App. Iber. 60.

40 A recent attempt to disprove this interpretation of Calpurnius’ law is discussed below.

41 The members of the Calpurnian court were indices or recuperatores. The latter is adopted by Eder 1969:96, 100, 116. But this depends on the jury having only assessed the amount to be repaid, hence recuperatores (�recoverers’). If such assessors did not also decide on guilt or innocence, how did they acquit M.Titinius, or adjudicate on �most serious charges’ against Furius and Matienus, at the Canuleius commission? Deciding on guilt or innocence would be a regular feature of the jury’s duties under the third repetundae law, the lex Acilia of 123/122. Eder 1969:79-86 seems to be against his dominant view. Kunkel has shown that the early second century special commissions in general were composed of a magistrate sitting with a consilium iudicum. Kunkel 1962:58-60; 1974:46-9, 52. Jones 1972:50-1 credits Calpurnius with having provided for a jury instead of recuperatores.

42 This is inferred from a clause in the lex Acilia requiring the peregrine praetor, within ten days after the passage of the law, to select a panel of

450 persons. Lex Acilia 12; FIRA 1.88. Cf. Eder 1969:95-9, 170-1; Jones 1972, 48. This was a carry-over from his function under the lex Calpurnia.

43 The definition of this function will have been similar to that in the lex Acilia, on which see below.

44 See lex Acilia 23; FIRA 1.90. This is one of the few occasions on which the reasonably well-preserved epigraphic text of the Lex Acilia gives a direct, and not merely an inferential, attestation of a provision of the lex Calpurnia. On the use of the sacramentum in repetundae proceedings see Kunkel 1962:13, 15, 102, 132; Eder 1969:66-71 and passim.

45 Cf. the humiliation that an adverse finding even in a civil suit brought P.Quinctius. Cic. Quinct. 49-51, 97, discussed in chapter 5. Titus Menenius was unable to endure the ignominia of a fine and died of shame. Livy 2.52.5. One of the reasons for going into voluntary exile was to escape ignominia. Cic. Caec. 100.

46 See below passim.

47 On this see chapter 5 at n. 11.

48 E.g. Eder 1969:3: �The lex Calpurnia and the lex Acilia established permanent jury-courts “that offer no points of comparison with factually similar offences against Roman citizens”.’ Cf. ibid. 6-14, 47, 53, 58-74 and passim. See also Jones 1972:48; Kunkel 1974:51-2; W.V.Harris, CAH 8.131-2.

49 Richardson 1987, passim. The idea appears to have originated with A.Rudorff in 1863, judging by Eder 1969:155 n. 1. It was also briefly anticipated by Watson 1974:81 and n. 3. As presented by Richardson it has been endorsed by D.Cloud, CAH 9.506; and Robinson 1995:81 with n. 83. Richardson reluctantly suggests that peregrines were also included in the lex Calpurnia, but he neither motivates his idea nor attempts to reconcile it with his basic thesis. In fact he contradicts himself, because if, as he contends, peregrines could not have been included in the lex because they did not have access to the legis actio sacramento, how did they get into the picture at all? Brunt 1988:526­30 abandons his previous adherence to the majority view. He now has both peregrines and citizens entitled by the lex, but he does not motivate the inclusion of citizens. Richardson does not repeat his theory in CAH 9.578.

50 The second law was a lex Junia passed at some time between 149 and 123/2. Like the lex Calpurnia, its procedure was based on the legis actio sacramento.

51 The private remedies to which Cicero refers were the legis actio sacramento and the condictio. On these see Jolowicz 1972:176, 180­2, 192-6, 214-15, 284-5 and passim. They included both a legis actio sacramento and a legis actio per condictionem.

52 The lex Acilia is precisely what, on our view, the lex Calpurnia was, namely a law providing exclusively for relief to non-Romans. This is clear from the opening clause (lex Acil. 1-2, quoted above). Richardson thinks that the lex Acilia also made provision for citizens. He deduces this from a fragmentary clause in the extant text: �If any Roman citizen shall have lodged the name of another under this law (ex hac lege alte{rei nomen detulerit}).’ Lex Acil. 87. The inference is not cogent. Citizen participation is dealt with in lex Acil. 6, authorising a citizen to lodge a claim not in his own name but in the name of someone else. The fragment on which Richardson relies is in the thick of a group of clauses laying down rewards for successful accusers. Lex Acil. 76-90. This simply means that besides acting as a patronus (lex Acil. 10-11), a citizen could be empowered to bring an action suo nomine, especially where the complainant was a foreign nation or a king. The position is analogous to that of a mandatarius or cognitor appointed to litigate for another (on which see Buckland 1963:514-21; Kunkel 1967:330­1). The agent was the principal as far as third parties were concerned. Whatever was recovered was paid to him and he accounted to his principal. The Acilian agent would similarly have accounted for the money repaid, but not for the reward. That was not practicable. The rewards as we have them offered a choice between citizenship and the right of provocatio. These only applied to non-citizens; due to a lacuna the rewards for citizens acting under a mandate are not stated. Eder 1969:231 n. 1 suggests exemption from military and public service. He rejects Rudorff’s conjecture of adlection into the senate and permission to wear the toga praetexta.

53 See lex Acil. 3, 7, 8, 12, 15, 23, 58, 59: the legis actio sacramento replaced by an accusationary procedure initiated by nominis delatio; the senatorial panel of iudices replaced by a panel of equites; a special praetor appointed to preside over the quaestio after the peregrine praetor, who had presided ever since the lex Calpurnia, had assisted the change by empanelling 450 equites; the penalty raised to double the amount exacted. The substitution of equestrian jurors for senatorial is the hub of the matter. The lex Acilia was a Gracchan operation. Gaius Gracchus and his associates were interested in the Italian allies, which did not require any change in principle from the lex Calpurnia. I take the list of Roman officials whose exactions fell under the repetundae process, as set out in lex Acilia 1-2, namely �dictator, consul, praetor, magister equitum, censor, aidilis, tribunus plebei, quaestor, IIIvir capitalis, IIIvir agreis dandeis adsignandeis, tribunus militum legionibus IIII primis, or any son of any of them, or any of them whose father is a senator’ to have been taken over from the lex Calpurnia.

54 Lex Acil. 74-5. Cf. 56.

55 Richardson 1987:4-9.

56 Cf. the agency suggested in n. 52 above.

57 Mommsen 1899:708 thought that the lex Calpurnia had made condictio available to non-citizens. Even if that view is unsound (Kunkel 1962:13­15, 102, 132), some adaptation is quite possible. On the possible opening up of the legis actiones to peregrines as early as 304 BC see Bauman 1983:39-43. Richardson cites (but rejects) other theories as to how the sacramentum problem could have been overcome.

58 Eder 1969:67-8 with n. 2 dates the law to 134. Jones 1972:49-50 notes M.Iunius Silanus (cos. 109) as the possible author during his tribunate (date unknown). MRR 1.513 tentatively makes him tribune in 123, but as the same entry in MRR also dates the lex Acilia to 123 the legislative calendar is somewhat crowded. M.Iunius Pennus (tr. 126) gives a more viable date if any lunius would do, but his lex Junia de peregrinis against peregrines who usurped citizenship is condemned by Cicero as inimical to humanitas. Cic. Off. 3.47, Brut. 109.

59 Volkmann 1990:104.

60 Cf. Volkmann 1990:102, pointing out that in order to counter allegations that he had misappropriated booty, Cotta delivered a large part of it to the aerarium. See also Alexander 1990: no. 192.

61 Livy says that Crassus’ trick deprived the Ligurians of relief. Cf. at n. 22 above.

62 Mark Antony’s reversal of a number of Jewish enslavements in 41 on the grounds that they had not been imposed under the laws of war (on which see the end of this chapter) was based on recognised principles but did not result from criminal proceedings. Volkmann 1990:103-4 considers it the last mass enslavement, citing Jos. Ant. 14.304, 313, 321. Antony’s edict of liberation ended with a threat to prosecute anyone failing to release the slaves or to restore their property. Jos. Ant. 14.322. He thus followed the precedent set by Scipio at Syracuse in 205.

63 The classic case is the dispute in 189 between the pontifex maximus, Licinius Crassus, and Fabius Pictor, the flamen Quirinalis, as to whether Fabius could leave Italy. Fines were imposed, but the people remitted the fine against Fabius on condition that he obeyed Crassus. Livy 37.51.3-6. See also Impallomeni 1955:121-5.

64 So Mommsen 1899:728, though arguing it merely as a logical possibility without evidence. Contra Kunkel 1974:61. Kunkel also rejects the theory that Cic. Verr. 1.56, Div. in Caec. 19 means that restitution had been raised to two-and-a-half times the amount exacted. Kunkel 1962:15 n. 26 rightly points out that Sulla’s repetundae law removed Italians holding Latin rights from the list of claimants, as a result of citizenship having become the norm for them since the Social War.

65 On Servilius Glaucia’s law and trials thereunder see Bauman 1983:387­96.

66 Bauman, loc cit.

67 On this law see Kunkel 1974:60-1.

68 Cf. Kunkel 1974:66-7, 286-9 and passim. See also Brunt 1961; D. Cloud, CAH 9.512-13.

69 Sources for the two cases in Alexander 1990: nos. 296, 303. Add Cic. Planc. 86. The study by Fantham 1975 is useful on the political side but does not address the legal issues. The trials usually receive little more than a passing mention. See for example CAH 9.273, 320, 401­2. Also Lintott 1981:212, though he is more forthcoming on the legislative background, suggesting that the Cornelian maiestas law’s ban on activities outside one’s province was anticipated by a lex Porcia repetundarum of 101. That could have been one of �the ancient laws’ to which Cicero refers.

70 Schol. Bob. 168 St has him collect the bribe. Cicero says that distress on Gabinius’ property failed to realise the full amount of the assessment. Rab. Post. 8. The shortfall could be due to Gabinius having parted with some of the money. The lex Julia allowed money received from a condemned person to be followed up. Cicero takes this as an example of the Julian law’s greater strictness, but adds that the provision had previously been in Sulla’s repetundae law and in the still earlier lex Servilia (Glauciae) repetundarum (on which see below). Cic. Rab. Post. 8-9, 12. When Dio 39.55.5 says that the second trial was for plundering the province of more than 10,000 talents, it must be supposed that he has the right amount but the wrong basis.

71 Or to put it another way, there was no bar on a second charge on the same facts but under the law of a different jury-court, as here: lex maiestatis and lex repetundarum.

72 It is not proposed to enter into the totally inconclusive debate as to the connection between litis aestimatio and iudicatio in the repetundae process—what part did the maiestas component play, which was broached first as between it and the assessment, etc.? A fair idea of the opposing points of view can be obtained from Henderson 1951 and Sherwin-White 1952.

73 It was of course always paid into the treasury even when a distribution was going to be made. Cf. lex Acilia 59-60, 66.

74 Cf. n. 70 above.

75 See the references in n. 20 above.

76 On the consequences of capta see Harris 1979:52-3, 263-4; Volkmann 1990: passim.

7 The new image of Humanitas: part one

1 See for example CIL VI 31692.10, 13: summa humanitas (Domitiani); humanitas sua.

2 In terms of the volume of material humanitas easily outstrips clementia. TLL has twenty-four columns on humanitas and associates compared with only four on the clementia series. Cf. VIR s.vv.

3 The last two are exceptions to our concentration on brutality-driven issues.

4 Cf. especially the corresponding categories in our discussion of the Republic.

5 The noun is not found in the poets.

6 On Ovid see especially Met. 8.57: victoris placidi clementia (cf. RG 3.2); Ep. Pont. 1.2.61: clementia Augusti; ibid. 3.6.7: c. Caesaris. Less directly in point: Ep. Pont, 2.2.121,4.1.25; Trist. 2.12.5, 3.5.39, 4.4.53, 4.8.39, 4.9.3, 5.4(5).19. Vergil has six uses of humanus, none of them apposite with the possible exception of Aen. 10.152. He does not use clementia. Horace has a solitary clementia: Carm. 3.11.46; humanus in Carm. 1.12.49 may be apposite.

7 Val. Max. 5.1 pr., reading prima inopi, proxima occubanti, tertia ancipiti fortunae with Madvig.

8 On the postulated meaning of libertas see OLD s.v. It is associated with humanitas by Seneca. Ira 2.28.2. On �the unfortunate’ see chapter 2 on the meanings of philanthropia. On �the uncertain’ see below in this chapter.

9 Veil. 2.114.1: Tiberius shows both humanitas and utilitas to soldiers who fall ill. One might have expected Aelius Lamia’s tempering of traditional gravitas by humanitas (2.116.3) to have been applied to Tiberius. On Augustus’ clementia: victory in the civil war brought death to no one and exile only to the intransigent. Vell. 2.85.5-87.3, where much space is devoted to his merciful use of his victory, clearly in rebuttal of the hostile tradition that reached Tacitus. Cf. Tac. Ann. 1.10.2.

10 He has 24 uses of the noun and 333 of the adjective, as well as 65 of clementia. See BZCS s.w.

11 Seneca’s tragedies yield nineteen uses of humanitas but none of immediate cogency. One might have expected something in the Octavia. If Seneca wrote Apocolocyntosis (on which see Roncali 1989:11-30), the solitary humanus (4.19) is of no interest.

12 Clem. I 5.2, 13.2, 25.1, II 4.2; Ira II 5.1, 5.3, III 3.6; Ep. VII 2.3-5, XIV 4-5, XC 45, XCV 30; Ben. 7.19.8. Seneca condemns savagery even more vigorously than Polybius.

13 What follows is a summary, with amplifications, of findings in Bauman 1996, especially chapters 3, 5-8, 10-11. But Seneca also pursued a somewhat different line than the Stoics. See below.

14 Cases under both Tiberius and Nero confirm Seneca’s view of the two virtues of clemency and severity, as well as supporting his claim that the Stoics have a better appreciation of humanitas (Romana) than any other sect. See below.

15 That is, the senate sitting as a court; the emperor’s court; and the courts of the urban and praetorian prefects and of governors.

16 The episode is attested by Tacitus Ann. 15.44.3-8. The regime’s citation of utilitas publica (probably in an edict) and the acceptance of that explanation by many people are inferred from the gentle tap on the wrist in Tacitus’ criticism: although the victims were guilty and deserving of exemplary punishment, they were pitied because it was felt that they were being sacrificed to one man’s saevitia rather than to utilitas publica. Ann. 15.44.8. Seneca’s opposition to the travesty is not only likely in view of his general stance, but may be specifically deduced from the very next episode in Tacitus, Nero’s unbridled exactions against Asia and Greece. Seneca was so opposed to this that he asked leave to withdraw from Rome. Ann. 15.45.

17 J.Nov. 30.11. The doctrine may have originated with Constantine, given the extraordinary form of death that he prescribed for adultery. CTh. 11.36.4.

18 On Seneca and the death penalty as such see also Andre 1979.

19 His letters concentrate mostly on the �courtesy, culture’ version of humanitas, but his correspondence with Trajan in Book 10 rises above that level.

20 He was preceded by Caligula, Claudius, Nero, Galba, Otho, Vitellius, Vespasian, Titus. Bauman 1974:191-225.

21 Ep. X 96.5, 97.2; Pan. 34-5.

22 Plin. NH 34.138. Other useful allusions in NH II 43, 174-5, 25.4.

23 On Flavius Sabinus, Tac. Hist. 2.63-4. On Pegasus and Rutilius Gallicus see Bauman 1996:101-2, 144-5, discussing Juv. 4.75-81, Stat. Silvae

6.3, 1.4.43-8.

24 Quintilian focusses on the needs of the schools. Inst. Orat. I 2. 31, 10.7, 12.2; II 2.10; III 8.59; V 11.19, 13.6; VI pr. 10, 1.22, 2.13; VII 3.5, 4.18; VIII 4.20; XIX 2.28, 2.90, 4.88; X 1.50, 3.15; XI 1.16, 1.42; 3.169; XIII 1.125, 2.8, 2.20, 10.8, 11.5, 11.10, 11.28. We might glance at 2.2.10, 5.13.6: the worst kind of approval is the storm of indiscriminate applause which has come to be called humanitas; in pleading for a lighter sentence we should urge the judge to consider the worthiness of humanitas rather than the pleasure of revenge. None of Suetonius’ single humanitas and three of humanus (Tib. 29, Aug.

28.3, Cal. 50, Vit. 11.2) are worth quoting. For Juvenal see 14.173-6: no vice of the human mind has so stimulated the preparation of a poisoned cup or a sharpened blade as avidly as implacable greed. See also I 17, 113; III 174; VI 82, 114, 556; X 137, 163, 301; XI 111; XII 64; XIII 159, 222; XIV 34, 264; XV 12-13, 132. Martial has no uses of humanitas or clementia.

25 Agr. 21.1-2: Britons, trained in liberal arts by Agricola, give the name of humanitas to what is part of their slavery; Germ. 21.2: they receive even a self-invited guest with the usual humanitas.

26 It is the only one. The humanitatis clementia of Apuleius Plat. 2.13 (cf. Firm. Math. 1.10-12) would be interesting if we could enlarge upon it. Fronto Ad Ver. Imp. 273 shares an expression with the jurists: �If anything humanitus happened to me’. Cf. D. 16.3.26 pr.: si aliquid mihi humanum contigerit. In both passages it is a euphemism for �if I died’. See also Fronto Ad Ver. Imp., Naber 131: �when pleading to you I call on humanitas itself, for to err is human and to forgive is most appropriate to men’. Also Ad Ver. Imp. 1.2, 1.4; Ad Amicos 2.8.

27 Chapter 3 s.v. �Preamble’.

28 Gell. NA 20.1, on which see Kunkel 1967:172-3; Norr 1974:66-9; Casavola 1980:1-125; Ducos 1984; Diliberto 1993:146-70; Bauman 1996:145-7.

29 Gell. 20.1.54, citing Verg. Aen. 8.643: �Alban, you should have kept your word.’

30 It is taken as authentic by Casavola 1980:92-7; Ducos 1984.

31 The literary sources after Aulus Gellius offer very little. From Hadrian to Severus Alexander, Dio occasionally credits a ruler with philanthropia (69.2.5, 74.5.2, 72.27.3[2]), but the Augustan History avoids humanitas altogether. Even Severus Alexander, that catalogue of all the virtues whose biography is crammed with allusions to Trajan (SHA Alex. 10.2, 13.2, 25.6, 26.4, 26.11, 39.1, 48.6, 65.5) fails to win the accolade of an express humanitas. See however below on the new set of words used by Alexander.

32 See OLD s.v. clementia, Group �c’.

33 Collins 1972:959-63. His identification of clementia as a virtue of a legitimate monarch appears to be a reference to the Hellenistic monarchies, though Collins does not expressly claim it as such.

34 On dementia populi Romani see Cic. Verr. II 5.74. Cf. Ps.Quint. Decl. 14.2, clementia publica,

35 BG VIII 3.5, 21.2.

36 B. Af. 86.2, 88.6, 92.4.

37 Part. Orat. 11; Verr. II 5.74.

38 Fam. 15.15.2. The author of Bellum Africum would not have agreed. Cf. n. 36.

39 Deiot. 34; Fam. 6.6.8.

40 Att. 11.12.2; Fam. 7.5.2, 13.15.3; Att. IX 7a.2, 7b.2; Fam. 4.13.2.

41 Ligarius had supported the Pompeians in Africa. Acts against Caesar, the ultimate victor, were retrospectively interpreted as acts against the Roman people.

42 RG 34. The Arles inscription (E-J p. 59) has pietatis erga deos patriamque, but the defining words may be a local gloss. The meaning of pietas was known everywhere.

43 They were of course the leaders of the plot to kill Caesar.

44 Octavian (Augustus) was Caesar’s adopted son. Pietas required him to avenge his father’s death.

45 RG 2. The law in question was the lex Pedia of 43 BC.

46 Vell. 2.87.2: fuit et fortuna et dementia Caesaris dignum.

47 Ibid. 2.87.2-3, noting also that Brutus and Cassius committed suicide.

48 On the proscriptions see chapter 9 s.v. �Genocide’.

49 Suet. Aug. 33.1, citing it as an example of lenitas. For other examples of his clemency in common law cases see Suet. Aug. 34.2; Sen. Clem. 1.15.1-7.

50 On these matters see Levick 1976:87-9 with 252 nn. 20-4.

51 See below on the conflict between the two forms of clemency.

52 Cf. RG 3.2: �When victorious in my wars I spared all citizens who sued for pardon. Foreign nations which could safely [tuto] be pardoned I preferred to save rather than destroy.’

53 Vell. 2.90-114, especially 2.114.4; Suet. Tib. 20; Dio LV 29-32, 34.4­7, 56.11-17. On the surrender in fidem in particular, Vell. 2.114.4; Dio 56.13.2-3, 16.

54 Tac. Ann. 2.62-3, 88.3; 3.11.1. Catualda, the author of Maroboduus’ downfall, received similar treatment.

55 Diodorus notes the generous treatment accorded to the Macedonian king, Perseus, by Aemilius Paullus in the Third Macedonian War. Diodorus considers it a general Roman practice which made her rule tolerable. Diod. 30.23.2. On libera custodia in general see F.Raber, Kl.P. 1 (1964), 1352.

56 Cf. RG 3.2, quoted in n. 52.

57 Tac. Ann. 2.27-32. The rider �even if he had been guilty’ covered the sort of weakness (in Libo’s case rash youth) that would, in Seneca’s hands, make clementia exculpatory rather than merely merciful. See below.

58 Lepidus here refers to Libo’s case.

59 Tac. Ann. 3.49-51; Dio 57.20.3-4.

60 Tac. Ann. 3.51.2-3; Dio 57.20.4.

61 Cf. at nn. 34, 37 above.

62 Hence Lepidus’ reference to the senate not regretting (its) clementia or severitas.

63 Levick 1976:89 notes that clementia was coupled with moderatio on the shields depicted on Tiberius’ coins. But I do not take her to mean that those two values were interchangeable. They were not.

64 Especially De ira which advised against allowing anger to influence punishment. Claudius’ record on clementia was not an impressive one. Griffin 1984:64.

65 The theory is not compactly assembled by Seneca. It has to be sifted out from De clementia and other writings, especially the Epistles. See Bauman 1996:78-89. I here summarise some of the findings in that work.

66 To which in my view Seneca did not entirely belong. Stoicism was not a homogeneous monolith. See the works cited in Bauman 1996:183 n. 1.

67 Tac. Ann. 14.42-5. On the senatus consultum Silanianum see the works cited in Bauman 1996:184 nn. 13, 14.

68 Freedmen were not included in the original s.c. Silanianum. It was now being proposed that they be included by interpretation.

69 It now took the form of deportation to an island. Under Tiberius the original interdiction from water and fire had been amplified by naming a specific island to which the condemned man was obliged to go if he wished to escape summary execution under the interdiction.

70 Tac. Ann. 14.48.5-7. The sentiments are similar to those expressed by Marcus Lepidus at Clutorius Priscus’ trial. But Lepidus speaks of a penalty of interdiction, whereas Thrasea uses the term �deportation to an island’ which had only come in since Clutorius’ trial.

71 The condemned man usually got into a warm bath and opened his veins. If he was not able to do this within an hour, the emperor sent a surgeon to do it for him. Suet. Nero 37.2.

72 Tac. Ann. 16.10-11. Nero’s actions were equally bizarre when clementia was not the issue. In 62 he had Faustus Sulla and Rubellius Plautus murdered. He then wrote to the senate denouncing the two men as agitators, but without disclosing that they were dead. The senate voted a thanksgiving and expelled the two dead men from its ranks. Tac. Ann. 14.57-9.

73 Suet. Dom. 7; Mart. 9.5(6), 7(8); Ammian. 18.4.5. Smallwood 1959 and 1961 thinks Hadrian imposed a total ban on circumcision which Pius relaxed to the extent of exempting the Jews. But there is some reason to think that Domitian’s policy of moral reform (on which see Grelle 1980) included something on circumcision. See below.

74 See Smallwood (works cited in n. 73); also below.

75 It was two drachmae a head. Jos. BJ 7.2.18.

76 Waters 1975:394, citing P.Jal, La guerre civile a Rome, Paris 1963.

77 Thornton 1975:442, listing clementia, fortuna red., indulgentia, iustitia, liberalitas, patientia, tranquillitas.

78 Thlibiae does not mean circumcision, despite Garnsey 1970:161 n. 1. It falls under the reference in Statius Silv. 3.4.73 (above) to �it is a crime to shatter a sex or to change a man’.

79 Smallwood 1959 and 1961 thinks Pius merely relaxed pro tanto a total ban imposed by Hadrian. That is quite possible, as is the attribution of the original ban to Domitian.

80 D. 48.8.11 pr.

81 Cf. chapter 5 s.v. �Humanitas and the law’.

82 D. 1.18.14, quoting a rescript of Marcus and Commodus in full; more briefly, of Marcus and Verus in D. 48.9-9.2.

83 D. 1.18.13.1. That fragment does however make it a general rescript on furiosi, leaving Marcus to include it in a ruling on parricide.

84 Dio 71 [72].22.2-28.4; SHA Marc. 24.5-26.13; Av. Cass. 2.1-8, 7­13.

85 On these jurists, and on Maecianus’ special relationship with Marcus, see Fanizza 1982, xi-xii, 10-11, 18-19, 93-123; Bauman 1989, 244­5; 1996, 116-20, 123, 194 n. 11. Cf. D. 37.14.17 pr., 1: �Volusius Maecianus, amicus noster, declared at our council?...’

86 On this man’s compilation in twenty books see Schulz 1946:153; Kunkel 1967:216-17; Jolowicz 1972:372, 390; Robinson 1997:37. He apparently (we do not have the actual work) did not cover any emperors other than Marcus and Verus, and Marcus alone.

87 He thus covered the first six years of Alexander’s reign. On the date of his death see Bauman 1995, rejecting the current preference for an earlier date. On Ulpian in general see Honoré 1982.

88 For a full discussion see Bauman 1996:152-6.

89 CJ IX 8.1, 8.2, 9.9, 22.5. Cf. Bauman, loc. cit.

90 The word is used by him in D. 4.6.38.1; 44.4.7.1; 48.18.1.27; 48.20.5.1; 49.4.1 pr. All the works from which these fragments come are dated by Honoré 1982, passim to Caracalla’s reign at the latest.

91 On this in general see Bauman 1996:124-50, 149-56.

92 On the games see chapter 9 s.v. �Death at the games’. For other examples of Ulpian’s detached approach see D. XLVIII 19.8.8, 19.6 pr.

93 Female circumcision is a notorious violation of human rights, but one looks in vain for determined opposition by protest groups.

8 The new image of Humanitas: part two

1 See for example Brunt 1961. The continued use of the lex Julia as a frame of reference is amply borne out by D. 48.11, De lege Iulia repetundarum, which contains an exceptionally high proportion of verbatim citations of the lex Julia, only a minimum of jurists’ opinions, and no citations of decrees of the senate or emperors’ rulings.

2 Cf. D. 48.11.1 pr.: The lex Iulia repetundarum pertains to money received by anyone holding a magistracy, office, commission, deputy or any other public office, function or ministry, or any associate of any of them. Part of this is probably interpretation. The categories in the Principate are given in D. 48.11.3, 4(?), 6 pr., 6.2, 7 pr., 7.2, 8.1. A full

list can be put together from information supplied by Brunt 1961:191­3, 198.

3 From Augustus’ edict promulgating the s.c. Calvisianum (on which see below). Cf. FIRA 1.410 vv. 75-80.

4 See the Edicts of Cyrene in which the s.c. Calvisianum is edict no.5. Greek text and Latin translation in FIRA 1.409-14. Greek text, bibliography and discussion in Sherk 1969:174-82. English translation in LRSB s.v. �9. the Cyrene Edicts’. Discussions in De Visscher 1940; Sherwin-White 1949; Brunt 1961:199-200, 202, 204; Bleicken 1962:36-43, 168-78; Sherk 1969:177-82; Jones 1972:75, 92, 111; Kunkel 1974:191 n. 34, 284-94, 320 n. 98, 322, 326, 328. Brief notices in Robinson 1995:7; CAH 10.101, 350, 635.

5 On the other, incompletely defined, objective see n. 11 below.

6 Defined as �any magistrate who is authorised to convene the senate’.

7 FIRA 1.411 v.95: chremata demosiai e idiai practhentes apaitein; pecunias publice vel privatim exactas repetere in the Latin translation.

8 The idea was to bring all grades into the picture. See FIRA 1.412-14 vv. 106-29.

9 FIRA 1.413-14 vv. 130-42.

10 For example Statius Silvae I 40.10-12, 52-7, where the urban prefect tries cases remitted from outlying areas. It is unlikely that the witnesses had to come to Rome. Also D. I 15.3.1-2: the prefect of the watch may try cases of arson and housebreaking, unless the gravity of the crime warrants a remittal to the urban prefect. In fact the whole of the emperor’s personal jurisdiction, insofar as it dealt with appeals from governors and prefects, involved sending up the record, not the witnesses. Also, when the urban prefect sentenced to deportation he had to get the emperor’s approval for a particular island. D. 1.12. Even in the Later Empire the prefect had to forward the record to the emperor. CTh IX 16.10, 40.10. See also n. 35 below.

11 The purpose of the s.c. Calvisianum was to make it easier for allies �to prosecute wrongs done to them [iniurias quascumque persequi] and to recover moneys exacted from them [recuperare ademptas pecunias]. To reclaim moneys they should approach a magistrate, �except if they are accusing the exactor capitally’—chorts tou kephales euthunein ton eilephota; praeterquam si capite accusent (illum) qui exegerit. FIRA 1.411 vv. 91-2, 97. But this is the only mention of capital jurisdiction. The only aspect dealt with in detail is recuperation (recuperare pecunias). On the other side (iniurias persequi) it has to be inferred that the five-man panel will, in cases of simple repetundae, adjudicate before assessing; but for aggravated (saevitia) extortion the five-man panel has no authority. This continued to be the position at the turn of the first century AD, namely that indices handled simple restitution, but capital penalties had to go to the plenary senate. See below on cases under Trajan. Whether the full senate derived its power by inference from the passing allusion in the Calvisianum, or by express authorisation somewhere else, cannot be determined. For discussions of this and other anomalies see Sherwin-White 1949; Sherk 1969:179­82; Kunkel 1974:284-94; Robinson 1995:7-8.

12 On the supposed cessation of the jury-court see for example Robinson 1995:7-8, arguing that the repetundae court disappears totally �after the beginning of Tiberius’ reign’; had it been otherwise Suetonius and Tacitus would have recorded examples. H.Galsterer, CAH 10.409 goes badly astray when he has all the jury-courts, �with the one possible exception of the adultery court’, obsolete by the end of the first century AD.

13 The comment on Nepos: Plin. Ep. 5.9. Nepos’ presidency of the repetundae court: Mommsen 1899:205 n. 1. Advocacy as a munus under the repetundae law: D. 48.11.1 pr. The amalgamation of a number of courts: Bauman 1968:85-7.

14 The jury-court’s jurisdiction over non-senators goes back to the case of the great equestrian prefect of Egypt, Cornelius Gallus, in 26 BC. He was accused of peculatus and repetundae. The senate interpreted the repetundae law so as to enable the jury-court to try him. Kunkel 1974:277-84; Bauman 1967:180-3; 1980:147-9. Cf. Ammianus 17.4.5; D. 48.13.16. On another aspect of Gallus’ case see below.

15 See for example Tac. Ann. 11.7.7: plebeian pleaders grace the gown. Also (Sen.) Apocol. 12.2; Juv. 7.106-8, 8.47-50: plebs togata.

16 From Tiberius’ reign the emperor also took personal cognisance of cases. See below.

17 On corrupt condemnations for money see the case of Marius Priscus below. Registering a high score in such condemnations was something of a pastime. Caligula once boasted of having condemned more than forty defendants in a single judgment. Suet. Cal. 38.3. It was also considered an achievement to execute twenty Sejanians in a single day. Suet. Tib. 61.4.

18 There was an element of maiestas minuta in his regal pretensions.

19 See on the trial of Silanus below.

20 I here abridge and restructure the discussion in Bauman 1974:92-9.

21 Tac. Ann. 3.66.2-3. Augustus’ numen was violated by similar brutality to that which he had condemned in Messalla’s case. On the spurning of Tiberius’ maiestas see Bauman 1974:96.

22 We know what Galba had done in 149; money was involved, through his receipt of the proceeds of the slave auction. Rutilius’ condemnation for repetundae in 92 was based on a bribe received from Mithridates. Bauman 1983:387-96. L.Cotta’s trial in 138 was adjourned seven times before he was finally acquitted. Val. Max. 8.1.11.

23 Tacitus Ann. 3.67.2-3 says that charges of maiestas were added to the indictment in order to deprive Silanus of the services of counsel. A second reason was to be able to examine Silanus’ slaves; as a general rule the evidence of a slave against his owner was inadmissible. Bauman 1974:98 and passim.

24 Ann. 3.67.2: facundissimi totius Asiae. This can simply mean orators who employed the Asian style, but here speakers who had specially come from the province are more likely.

25 Ann. 3.67.3.

26 Ibid. 3.68.1-2, 69.8: L.Piso, after a long preliminary statement about the emperor’s clementia, proposes interdiction and banishment to Gyarus. Tiberius substitutes Cythnus.

27 Although he does say at the beginning of his account that a complaint of repetundae was lodged by the provincials; later on he admits that there was no doubt that Silanus was guilty of saevitia and the improper receipt of money. Ann. 3.66.2, 67.2.

28 Tac. Ann. 4.18-20.3, including 4.19.5. Again he concedes that the accused was guilty of repetundaei

29 Ibid. 4.20.1: stipendiarii. They paid a land tax in a fixed amount of money or produce.

30 Questions of tax were linked to humanitas. Cicero puts it like this: �Your humanitas bids you save the tax farmers from ruin. You should defend both the safety of your allies and the dignity of your empire, especially as your most important taxes are involved.’ Cic. Leg. Manil. 18, 14.

31 The actual benefit to Silius from increasing the rate of tax is not clear, but a possible answer is that he was rewarded by the tax farmers (publicani). Cf. Cicero (n. 30) on the publicans. But whether Silius would have had to pay back money that he had not received, namely the additional taxes, if the provincials had lodged claims is a moot point. If he in fact received the taxes but failed to use the money officially, it was peculatus rather than repetundae.

32 Cf. Tac. Ann. 2.50.1: Meanwhile the lex maiestatis was growing up.

33 Tac. Ann. 4.15.3; Dio 57.23.4. Capito was convicted by the senate.

34 On Suillius: Tac. Ann. 11.4.1, 6 (a million sesterces to Suillius); 11.5.1­2 (400,000 to Suillius, who was then found to be in cahoots with the other side); 11.6.1-5, 13. 42-3. On the location of his Asian governorship in Claudius’ reign see Brunt 1961, 206.

35 In other words, they were taking written depositions on the spot, as we have suggested. Cf. n. 10 above.

36 Because they were in Italy and could be subpoenaed. Cf. at n. 9 above.

37 Tac. Ann. 13.42-3. The lex Cincia, whose revival Claudius had rejected, was revived by Nero’s senate for use against Suillius.

38 Dio 60.33.6; Tac. Ann. 13.33.1-2. Dio’s silly reason for Claudius’ decision to acquit does not alter the fact that there was an acquittal.

39 Plin. Epp. 2.11-12 (Priscus); 3.9 (Classicus); 4.9 (Bassus); 5.20 (Varenus).

40 On the chronology see Sherwin-White 1966:56-60.

41 That is, that the non-capital phase laid down by the s.c. Calvisianum be carried out, except that Priscus’ plea of �Guilty’ made it unnecessary for them to adjudicate; all they had to do was to assess. As to whether the Calvisianum was still in force, Sherwin-White 1966:161 thinks it was. Contra Brunt 1961:199, suggesting its early replacement by more direct participation by the full senate.

42 On whether the expression as used here included the Calvisianum, see n. 41.

43 Ep. 11.2.4-5. Sherwin-White 1966:163 is critical of what he considers the senate’s general ignorance of public law and procedure. Elsewhere he thinks it peculiar that Marius Priscus was tried both by recuperators and by the full senate. See his Fifty Letters of Pliny 2nd edn, Oxford 1969:89-90. But the point is that some new principles were being put in place and others were being given their definitive shape. See further below.

44 Despite Sherwin-White (in n. 43 above).

45 On which see Sherwin-White 1966:58-60, 162; Fifty Letters of Pliny, 143.

46 Ep. 3.9.2-3. Pliny is not sure whether the death was accidental or voluntary. The latter is likely enough.

47 It had been laid down by the senate in 26 BC, when Cornelius Gallus killed himself before his trial. According to D. 48.13.16 charges of peculatus and repetundae are continued against the heir. And peculatus and repetundae are precisely what was alleged against Gallus. Ammianus 17.4.5.

48 Ep. 3.9.3-5.

49 Epp. 5.20, 6.5, 6.13, 7.6, 7.10. It is of course possible that Varenus was convicted. That might explain Pliny’s silence.

50 Whatever devastation resulted from Germanicus’ campaign against German tribes over 14-15 AD, it was motivated by the regime’s desire to erase the disgrace of Varus’ catastrophic defeat in 9 AD, not by greed. Tac. Ann. 1.3.6.

51 SHA Marc. 11.9: he gave curatores (in Italy—Mommsen 1899:718 n. 6) power either to punish those who exacted money in excess of authorised taxes, or to remit them to the urban prefect. Mommsen, loc. cit. notes the passage under �Repetunden’ but refers the practice that it attests to the Later Empire. Also, it is attested for Italy, not the provinces. The same chapter records unspecified provisions for Italian settlers in the Spanish provinces. SHA Marc. 11.7.

52 D. 48.11.2-7 pr., 7.2, 8.1.

53 D. 48.11.1.1, 7.1, 7.3, 8 pr., 9.

54 On Greek antecedents see Heinemann 1931:283-99, though his division of intellectual thought into three types—pedagogic—formal, cultural—philosophical and ethical-sociological—is less than illuminating. Veyne 1993:347-50 also draws unclear distinctions— between universalism and cosmopolitanism, and universalism and internationalism. Our thoughts on Isocrates (chapter 2) also belong here.

55 Off. 1.50-52, Ad Q. fr. 1.1.3-29, Quinct. 49-51. Discussions in chapter 5.

56 Off. 1.53-54 (low priority of the universal bond); Off. 1.30, Leg. 1.33 (citations of Homo sum); Scaur. 39-45, Place. 9-12, 16-19, 24, 57, 60 (racial prejudice). Discussions in chapter 5.

57 For views on Caesar’s universalism see Starr 1965:19-27; C.E. Stevens, in Birley 1967:20-30; De Martino 1972-4:3-339-40; Sherwin-White 1973:399-402; Veyne 1993:357, 361.

58 See generally Starr 1965: chapters 2, 3, 5, 7, 8-12; Birley 1967:1-59; Sherwin-White 1973:402-8; Stier 1975; Fears 1981; Veyne 1993.

59 For some succinct remarks see Hammond 1959:9-10, 22-3 nn. 42-4. See also Salmon 1968:47, 163-5; Sherwin-White 1973:402 with 38­95. Technically there were differences between Italy and the provinces, notably in the special character of provincial land which was not susceptible to full private ownership. Cf. Jolowicz 1972:267-8, 505. But by Aelius Aristides’ time (see below) such matters were of minor importance.

60 On Augustus’ policy in these matters see Weinstock 1960; Starr 1965:33, 38, 40, 46-7, 51-3; Sherwin-White 1973:402-3, 424, 430­1; Petit 1975: passim, 1976: passim; Stier 1975:18-42; Fears 1981:884­9; J.A.Crook, CAH 10:96, 139-40. Among the sources see especially Tac. Ann. 1.11.7, Dio 56.33.5-6: guidelines on limiting territorial expansion in a document deposited with Augustus’ will. See also Dio 54.9.1. Syme 1958, 527-31 is sceptical about superficial propaganda. But how often are statements of government policy anything else? Very often it is only by knowing what they were saying that we can form an idea of what they were doing. The reduced frequency of wars (they were not eliminated entirely) meant less opportunities for commanders to practise mass brutality. The great repetundae trials (below) measure up well to their Republican predecessors in the savagery that they uncover, but fall far short in terms of the numbers of victims.

61 RG 3.2: �External nations who could safely be pardoned I preferred to preserve rather than destroy.’ Veyne 1993:353-4 thinks that Augustus here asserts �the privileges of a master who reigns because he is who he is’ more unequivocally than the Greeks did when they advised victors to show philanthropia to the vanquished. Augustus’ words strike Veyne as �unimaginably terrible with their fierce and merciful smile’. This is over-dramatised. Augustus was merely doing what Cicero had said should be done—cf. his �vanquished who have not been barbarous’ (Off. 1.34-5) with Augustus’ �those who could safely be pardoned’—and what Panaetius and Aemilianus had said (and done) before that.

62 See above.

63 One thinks of his admission of leading citizens of Gallia Comata to magisterial and senatorial careers in Rome. See Sherwin-White 1973:237-50. Less credible is the satire crediting Claudius with wanting to enfranchise all Greeks, Gauls, Spaniards and Britons. (Sen.) Apocol. 3.

64 Sen. Epp. 48.2.3, 95.50-53, 120.6 (cf. Ben. 5.21.1); Clem. 1.18.1-2.

65 Clem. 2.1.1-3; 2.2. Cf. 1.24.2.

66 Cic. Ad Q. fr. 1.1.27-9, discussed in chapter 5.

67 Plin. Pan. 2.7, 6.1, 90.2, 94.1; Epp. X 52, 102, 176.

68 On Hadrian’s policies see Syme 1958:465-503; Birley 1967:49-54; Thornton 1975:445-52. See also Tertullian’s description of him as omnium curiositatum explorator.

69 During his empire-wide travels to which he devoted a total of twelve years (out of a reign of twenty-one years), Hadrian sat in judgment, granted charters and privileges, founded cities on which he bestowed his own name, and almost made the eastern half of the empire a second capital. With the exception of his legal reforms, his work is adequately summarised by Thornton 1975.

70 For general accounts of his legal reforms see Pringsheim 1934; D’Orgeval 1950; Bauman 1989: ch. 8.

71 To confront L.Mitteis, Reichsrecht u. Volksrecht in den östlichen Provinzen des römischen Kaiserreichs, Stuttgart 1891, repr. Hildesheim 1963 would take up an inordinate amount of space. In any event our objectives are tangential to, rather than coincident with, Mitteis’ work.

72 On the codification of the edict see generally the works cited in n. 70. On the specific point about centralisation see especially Palazzolo 1974:19-36. On the revision of the laws of Athens see Bauman 1989:281-6. On the empire-wide criterion see D. 1.3.32 pr.; Just. Deo auctore 10.

73 As Sherwin-White 1973:427 points out, Aristides is well aware of the technical distinction that still exists between citizens and peregrines, but the distinction was breaking down in the popular perception.

74 One of the few noteworthy facts about Antoninus Pius in this regard is that Aristides wrote his Panegyric to Rome during the reign. As for Marcus Aurelius, even if the unfavourable assessment of his Meditations by Starr 1965:249-50 (�The stale mumblings of Stoic thought, no single original thought in the entire work’) is exaggerated (see the more favourable analysis of Noyen 1954/5), the work does not have any memorable thoughts on universalism. One could no doubt put together some sort of picture from the Augustan History’s biography and Dio. E.g. SHA Marc. 9.8, 11.7, 16.3-5, 17.1, 17.4, 22.10-11, 22.2, 22.12, 24.3, 25.12, 26.1-2; Dio 71.3.1, 72(71).13.1-2, 72.9.3-6. But no informative picture would emerge.

75 This was done in the well-known Constitutio Antoniniana, all the essentials of which are covered by Sherwin-White 1973:279-87, 380­93.

76 All this is expressed by Aristides himself. Including the position of peregrines, given that Aristides knew that he was not being technically correct but was reflecting the de facto realities. Cf. n. 73. On Aristides’ attitude as a whole see Sherwin-White 1973:425-30.

77 On this see Cardascia 1950; Garnsey 1970:221-3 and passim; Rilinger 1988; Bauman 1996:125-30, 139-41 and passim.

78 See the works cited in n. 77.

79 Cf. Cicero’s remarks at Rabirius’ trial, discussed in chapter 5. That decapitation was the normal form is attested by D. 48.19.8.1.

80 Passed by Sulla in 81 BC.

81 Under the original lex Cornelia de sicariis the penalty was interdiction from water and fire, which effectively meant exile to any place with which Rome had a treaty. In the Principate a particular island was nominated by the sentencing authority. An interdiction was still imposed, but the difference was that now the offender could only avoid death by going to the nominated island. This was deportation.

82 The Severan period, the turn of the second century AD.

83 See the composite of passages from Seneca cited in chapter 7 at n. 12.

84 See further the discussion of the games in the next chapter.

85 Participation by everyone is the early nineteenth-century view of B.Constant, recorded in Constant 1957. That opinion is not generally shared (see e.g. Wirszubski 1950), though the role of the popular assembly increases in stature as prosopography’s grip on Roman politics weakens.

86 Tacitus’ civilis animus merges comfortably with humanitas.

87 Tac. Ann. 1.72.3-4. On defamation and maiestas see Bauman 1974, 25-51 and passim. The initial subsumption of pamphleteering under the lex maiestatis was in respect of pseudonymous writings under someone else’s name rather than strictly anonymous models.

88 The malum carmen for which the XII Tables had prescribed a capital penalty was an evil spell (Plin. NH 28.4.18) rather than an attack on character (Cic. Rep. 4.12). Cf. Jolowicz 1972:171 with n. 9.

89 Bauman 1983:242-4, discussing the action against a mimist by the poet Accius.

90 They are the Invective against M.Tullius Cicero attributed to Sallust and The Invective against Sallustius Crispus attributed to Cicero. The attack on Sallust is generally regarded as spurious. That on Cicero is largely so regarded, but has some support for genuineness. Discussion by J.C.Rolfe, Loeb edn of Sallust, xviii-xx.

91 For example, Dio 39.62.2 says that Cicero was Gabinius’ accuser in 54 BC. Cicero was forced to deny it; he said that he was only a witness. M Q. fr. 3-9.1.

92 For example, in 206 BC the poet Naevius was imprisoned for his slanders of prominent men, having said of the powerful Metelli that �They are fated to be consuls at Rome’, and of Scipio Africanus that his father had once forcibly led him away from a woman in a state of undress. Cell. 3.3.15, 7.8.5. According to Gellius the tribunes released him from prison. But Jerome a. Abr. 1805 says that he died at Utica after being driven from Rome by the Metelli. The explanation probably is that after his release he left Rome in the interests of his personal safety, not because of any legal requirement. That plebeians continued to speak out is shown, for example, by the case of Junius Novatus who was merely fined for publishing a scathing letter against Augustus under the name of Agrippa Postumus. Suet. Aug. 51.1.

93 Dio 56.27.1. Cf. Bauman 1974:25-51. The most helpful work on bookburning is still F.H.Cramer, �Bookburning and censorship in Ancient Rome’, Journal of the History of Ideas (1945), 157.

94 Bauman 1974:157-9.

95 As a rule he either replied with a tu quoque or ignored words that did not threaten hostile action against him. Suet. Aug. 51.2-3.

96 Tac. Ann. IV 34.1-2, 35.5. Cf. Dio 57.24.3, Suet. Tib. 61.3, Sen. Ad Marc. 1.3.

97 Sen. Ad Marc. 1.3, 26.1; Tac. Ann. 4.35.5; Suet. Cal. 16.1; Quint. Inst. Orat. 10.1.104.

98 On Thrasea and Nero see Bauman 1974:153-7; Griffin 1984:165-6 and passim. Suet. Nero 32.2, a generalisation about maiestas charges, is not to be taken literally but does indicate the very wide scope of the law.

99 Bauman 1974:157-9.

100 Cf. chapter 9 at n. 71.

101 For a full discussion of this topic see Starr 1965:31-163 (The unfolding of absolutism’).

102 Starr 1965:165-250 (�The intellectual decline of the Early Empire’) is perhaps over-pessimistic. Tacitus, for example, by no means reflects an intellectual decline, but he does have to go to an earlier period for spectacular set-pieces. His Histories, dealing with the Flavians, is not enlivened by such pieces to anywhere near the same extent as the Annals which covers the Julio-Claudian period.

103 Nero’s caelestis vox was based on the idea that the power of speech possessed maiestas. Thrasea Paetus offended by failing to do homage to it. Tac. Ann. XVI 22.1, 21.1. Vespasian incurred Nero’s displeasure by either staying away from Nero’s performances or falling asleep at them. Suet. Vesp. 4.4, 14. Cf. Tac. Ann. 16.5.5, Dio 66.11.2. The Domitianic incident is in Dio 67.12.2.

104 If an informer secured a conviction he received a portion of the confiscated property.

105 On Sejanus’ use of the lex maiestatis as a weapon of thought control, and on the party led by Agrippina, see Bauman 1974:113-24; 1992:154-6.

106 Tac. Ann. 4.68.1-70.7. Cf. Dio 58.1.1b-3.

107 E.g. Claudius. Bauman 1974:194-204.

108 E.g. Caligula and Nero. Ibid. 204-10, 211-13, 143-53.

109 Dio 71.28.3.

110 CJ 9.8.2, 9-8.1 (�Charges of maiestas are in abeyance on whatever grounds they are based in my age’).

111 The works consulted in the preparation of this topic include R.P. Longden, CAH (first edn 1954) 11.210-12; Hammond 1959: passim; Sherwin-White 1966:104-5, 422-4; J.R.Patterson, �Crisis: what crisis? Rural change and urban development in imperial Apennine Italy’, PBSR 55 (1987), 115-46; G. Woolf, �Food, poverty and patronage: The significance of the epigraphy of the Roman Alimentary schemes in early imperial Italy’, PBSR 58 (1990), 197-228; LRSB vol. 2, s.v. �The imperial child-assistance scheme (alimenta)’. For a list of other works see Woolf op. cit. nn. 1, 2 and 123, and passim. See also OCD s.v. alimenta; FIRA 3.373-5.

112 The earliest known private benefactor is T.Helvius Basila who bequeathed 400,000 sesterces to the municipality of Atina, the income from which was to provide grain to the town’s children until they reached maturity, and thereafter a cash payment of 1,000 sesterces each. For the relevant inscription see LRSB vol. 2, s.v. �Child assistance funds (alimenta)’.

113 The inscription recording the details of the Veleia model is in FIRA 3, no. 116. For the other major document, the inscription of the Baebian Ligurians, see ibid. no. 117.

114 Cf. the inscription from Sicca, LRSB vol. 2, s.v. �Child assistance funds (alimenta)’.

115 So, for example, Longden, op. cit. in n. 111,211; Patterson, op. cit. in n. 111. OCD s.v. alimenta takes the opposite view: �There is no reason to think that the landowners needed or even welcomed the loans (which

placed a perpetual charge on their property).’ Why? Even if Italian agriculture was not depressed, working capital on favourable terms will always have been welcome. Roman property owners were no more afraid of mortgages than their modern counterparts. The younger Pliny established a private trust for freeborn boys and girls at Comum by successive mancipations of his property to and from the municipal agent, thus making 30,000 sesterces per annum available. Nowhere does he suggest that it was an unwelcome burden. His only difficulty, he says, was to persuade the childless to endorse a scheme that was only of benefit to parents. Plin. Ep. 1.8.8-10. Cf. 1.8 as a whole, 7.18. The reluctant included childless officials who were saddled with the administration of the trust. On the munus aspect of the official version see below.

116 This legend appears on Trajan’s coins from 107/8 to 111/12. Sherwin- White 1966:422.

117 This appears in both the inscriptions noted in n. 113.

118 On indulgentia, which later combined the qualities of clementia and humanitas, see Gaudemet 1967, Waldstein 1964.

119 Longden and Patterson, opp. citt. in n. 111. Also, by citing Aurelius Victor with approval, FIRA 3.374. For the opposing view see n. 124.

120 The expression is mine, not Longden’s or Patterson’s.

121 The elder Pliny said that the latifundia had ruined Italy and were now ruining the provinces; six men owned half of Africa. Plin. NH 18.7.35.

122 Plin. Pan. 26. But he lists generosity and principle as the motives behind his own private trust. Ep. 1.8.9.

123 This is, for example, the thesis of D.C. Earl, Tiberius Gracchus: A study in politics, Brussels 1963. For a survey of the deeper social background to the reforms see E. Badian, ANRW I 1 (1972), 670-90.

124 So Woolf, op. cit. in n. 111, passim, with literature. Despite a certain amount of backtracking, his considered opinion seems to be that the principal motivation was a combination of heightened appreciation of civic values coupled with patronage, rather than rural poverty.

125 Aurelius Victor (whose evidence Woolf cannot quite bring himself to reject) notes Nerva’s pioneering venture in the context of general relief to depressed towns—afflictas civitates. Vict. Ep. 12.4. Dio 68.5.4, the only other literary source to notice the alimenta, has Trajan making many grants to Italian towns for the support of their children, and conferring benefits on the agathoi. Dio thus separates the benefits reserved for agathoi from those given to the towns. See also below.

9. Man’s inhumanity to man

1 See especially Harris 1979:50-3, 263-4.

2 See for example Dion. Hal. 14.6.1-6 making the Romans honorary Hellenes (discussed in chapter 5). Also Plut. Marc. 19-20 (see chapter 4).

3 The external example should be viewed in the light of, especially, the pre-lex repetundarum atrocities in Spain. Also, brutal treatment of defeated enemies (e.g. by Scipio Africanus, Aemilius Paullus, Aemilianus, Caesar [BG 1.6.1,5; 1.7.1; 4.2.2-5; 4.4.5; 4.6.2-4; 4.15.1­3]) is generally similar to our example but lacks Sulla’s unique objective of total extermination. The proscriptions that followed the mutual mayhem between Marius and Sulla over 88-87 (on which see Bulst 1964:313-18, Meier 1966:229 n. 140, MRR 2.46), and the accompanying hostis declarations (Bauman 1973), went back to the Gracchan s.c. ultimum, but our concern is with the updated version of 81.

4 Livy Per. 88, Per. Oxy. 88; Dion. Hal. 5.77.4-5; Strabo 5.249-50; Plut. Sulla 29-30; App. BC 1.93-5, 4.28-41; Dio fr. 109.3-4; Oros. 5.21.1-10.

5 Plut. Sulla 30.2-3; Dio fr. 109.3-9; Oros. 5.21.1.

6 On this see Hinard 1985:103-43, with Flor. 2.9.25, Plut. Sulla 31.2­4, Oros. 5.21.2-3.

7 The senate did not want something harsher than ancestral custom to be seen to have the approval of the publicum consilium. Cic. Rose. Amer. 153 with Hinard 1985:108-9, 115-16.

8 The principal law, the lex Valeria: Cic. Leg. 1.42. Despite the objections of Hinard 1985:68-9, the accepted interpretation of the passage should stand. Cic. Dom. 43 is not against this. Cicero there defines �proscription’ in the same terms: poena in cives Romanos nominatim sine iudicio constituta. The supplementary law, the lex Cornelia: Hinard 1985:100, calling it the lex Cornelia de hostihus rei publicae. This title has the merit of highlighting Sulla’s motivation as presented by himself. In 88 he had said that he was marching on Rome to deliver the city from tyrants. Bauman 1973:283.

9 App. BC 1.103 (rather than 1.95); Val. Max. 9.2.1. Also Plut. Sulla 31.3-6; Oros. 5.22.4; Eutrop. 5.9.4.

10 He thereby gave statutory underpinning to voluntary exile (discussed in chapter 5).

11 For example, when Sulla issued a hostis declaration in 88, Marius and his son managed to escape to Africa. In fact, of the twelve named in Sulla’s decree, only P.Sulpicius Rufus was caught and killed. Sources in MRR 1952, 2.42. Sulla was determined to avoid such a poor result in 81.

12 App. BC 4.10, in the context of his verbatim quotation of the triumvirs’ edict, on which see Hinard 1985:228-9 with n. 4. Other departures from the Sullan model noted by Hinard: 229-30 are minor.

13 App. BC 4.7 (297), but 4.5 (2300); Plut. Brut. 27.6, Ant. 20.2; Flor. 2.16.3; Livy Per. 120; Oros. 6.18.10. Hinard 1985:119, 265, 267-9 settles on a figure of 300 for the triumvirs. But his estimate of 520 for Sulla is far too low. Appian’s account seems reliable.

14 Suet. Caes. 11; Ascon. 70 St. Caesar made the ruling at the trial of the Sullan centurion, L.Luscius, who had killed three proscripti.

15 Over 88-87 BC, together with Sulla’s larger contribution in 81.

16 The lex Pedia was passed in August 43 when Pedius became suffect consul with Octavian. Rotondi 1912:435; MRR 2.336-7. The triumvirate was created in November 43. It was only then that the proscriptions were formally authorised. On Pedius’ publication of the seventeen names and his death see App. BC 4.6-7.

17 The British chieftain’s bitter �They make a desert and call it peace’ (Tac. Agric. 30.7) is more of a Tacitean topos than a serious statement of fact. The theme was also pursued elsewhere, by Tacitus and others. See Syme 1958:529 with some observations on Tacitus and Pax Romana.

18 The use by some sources, notably the Augustan History, of the verb proscribere in fact refers to interdiction decrees.

19 Cicero’s contemporary, Varro, distinguished three kinds of agricultural equipment (instrumentum): instruments endowed with speech (slaves); inarticulate instruments (cattle); speechless instruments (wagons and ploughs). Res Rusticae 2.2.5-6. Cf. D. 34.4.31. On slavery’s part in blocking a general theory of human rights see Finley 1983, 93-123; Bradley 1984:113-37; Veyne 1993:346-8.

20 Cicero’s position is on the whole one of acceptance of the existing situation. Dumont 1987:743-60 notes that Cicero’s works include only four in which the treatment of slaves is discussed: Rep. 3.37, 5.4-5; Tusc. 2.47-51; Leg. 2.29; Off. 1.41. Add Off. 2.24, 3.89 (not noticed by Dumont): �To keep subjects in check severity has to be employed. For example, masters towards slaves if they cannot control them in any other way.’

21 Mid-first century AD.

22 Pol. 1254a. 18, 1254b.25. Cf. Finley 1983:117, 119; Veyne 1993:347­8.

23 D. I 5.3, 5.4.1; Just. Inst. 1.3.1, 3.

24 That is, one inducted into humanitas by paideia.

25 Ep. 47.1-5, 10, 11, 13 adapted.

26 Bauman 1974:43-8. Torture was also employed in order to extract a confession from a slave who was himself an accused. Robinson 1981:223-5. Cf. Jones 1972:115.

27 Tac. Ann. 14.60.4. Dio 62.13.4 confirms Pythias’ reply but makes her the only one to assert Octavia’s innocence. In Suet. Nero 35.2 all the maids maintain her innocence.

28 On what follows I give an abridged version (with additions) of Bauman 1989:92-5. To the literature listed at 93 n. 100 add Robinson 1981:233-5; 1995:45; Watson 1987:134-8; Wolf 1988; Bauman 1996:81-3.

29 See the works listed in n. 28. There were further decrees of the senate after the Augustan decree of AD 10, but Justinian retained the name of the original decree: De senatus consulto Silaniano et Claudiano. D. 29.5.

30 Every slave was deemed to be an accomplice. The onus of rebuttal was on the slave.

31 There is something of a problem here. Tac. Ann. 14.43.4, 45.1 says there were 400 slaves and neither age nor sex saved any of them. But the jurist Maecian, writing in the mid-second century AD, says that children below puberty (impuberes) are exempted from the provisions

of the s.c. Silanianum. He does however note an exception to that rule. D. 29.5.14. Cf. D. 29.5.1.28. Presumably the exemption of impuberes was not in the original s.c. but came in at some time after 61.

32 Tac. Ann. 14.44.5: �Since we have in our households peoples of different rites and beliefs, you can only control conluviem istam by terror.’

33 Not so much by the populace at large as by villae proprietors whose small complements of slaves could not tolerate extermination without financial disaster. Bauman 1989:102-7. But the actual demonstrators throwing stones and filth (Tac. Ann. 14.45.2) could have been a rented crowd from the city proletariat.

34 Hor. Sat. 1.30.80-82, 2.3.128-30. Cf. Bradley 1984:122 with n. 54.

35 Dated to the Late Republic or Augustus by Finley 1983:95. Text and discussion: Bove 1967.

36 It continued to be so applied right down the Principate. Nero’s refusal to apply the s.c. to freedman was reversed in 105. Plin. Ep. 8.14. And Hadrian, sentencing an ancilla to death for failing to give the alarm when her mistress was killed, said that his ruling would remind other slaves not to think of themselves first. D. 29.5.1.28. There were a few cosmetic changes from time to time (see Robinson 1981:234-5), but the law remained basically unchanged. D. 29.5; CJ 6.35.

37 As Tacitus says, no counter-proposals to Cassius’ motion were made. But Seneca was probably responsible for Nero’s refusal to punish the freedmen.

38 Finley 1983:93-6.

39 Garnsey 1970:122-9, 139; Robinson 1981:220; Bradley 1984:119; Watson 1987:116-19. Buckland 1908:36 thinks that in the Republic slaves enjoyed effective protection from the censor. For a criticism of Dion. Hal. 20.13 on which the censor’s role is based see Watson 1987:116-17.

40 Constantine’s position on the games is equivocal. Sentencing to the gladiatorial games was forbidden. CTh 15.12.1; CJ 11.44(43). But kidnappers were, if slaves, thrown to the beasts at the games; if free they were sentenced to the gladiatorial games, but on condition that they be destroyed by the sword before doing anything to defend themselves. CTh 9.18.1. (Cf. the position in the Late Principate: Coll. 11.7.4 discussed in chapter 8.) A person condemned to the arena was not to be branded on his face, but on his hands and legs, in order not to disfigure the face which is in the likeness of celestial beauty. CTh 9­40.2. Cf. the respect of Domitian and the Antonines for the human form: see chapter 7. Valentinian and Valens forbade the sentencing of Christians to the arena for any crime. CTh 9.40.8. The crux is the three decrees of Constantine—CTh 15.12.1, 9.18.1, 9.40.2. The only solution that occurs is that 15.12.1 was issued in 325, whereas the other two date to 315 and 316. But a complete ban on sentencing to the gladiatorial games was no longer in force when 9.40.8 was issued in 365.

41 For a useful account of an obstreperous topic see Garnsey 1970:141­7, 213-16. Brunt 1980:259-65 makes some interesting points but does not leave the reader with a clear overview. Robinson 1995:13 is very brief.

42 For the fluctuations see Garnsey 1970: locc. citt. One or two comments are worth making. Despite Claudius’ oath not to torture any free men, torture was applied to accused persons of every status, citizens and peregrines, and plebeians, knights and senators. Dio 60.15.6. Cf. Suet. Claud. 34.1. Brunt 1980:259 n. 17 thinks that only slave witnesses are referred to in the Suetonius passage. But torture for that purpose was not something to provoke any special comment or notice. In Tac. Ann. 11.22.1-2 men involved in the conspiracy against Nero break down at the sight of the rack, but a freedwoman puts them to shame by refusing to give in. Hadrian ruled that if anyone claimed to be free in order to avoid being examined under torture, the claim to free status must be decided before proceeding with the examination. D. 48.18.12. We infer from this that by this time there was legislation against torturing free persons. Cf. D. 48.18.1.13, 9.2 on Pius; discussions in Garnsey 145-6, Brunt 260-1. But if Marcus had to rule that persons of great eminence were not subject to plebeian penalties or torture (CJ 9.41.11), there could not have been an overall ban on torturing free persons. Commodus made military veterans who had been guilty of treachery or desertion during their service liable to torture. D. 49. 16.7.

43 The slave had first to be formally tried by a judge. Datings of the law fluctuate between Tiberius and Nero. Tiberius: Garnsey 1970:130 n. 7; Levick 1976:257 n. 47. Nero: Rotondi 1912:468; Watson 1987:121 (�before 79’); Robinson 1995:43.

44 Suet. Claud. 25.2; D. 40.8.2; CJ 7.6.1.3. Restated by Pius. Gai. 1.53. Watson 1987, 122 wonders why Suetonius limits the abandonment of slaves to the island of Aesculapius in the Tiber. But the reason is obvious. An owner had sent his sick slave there for medical treatment but had found the cost too high. Later on Claudius’ ad hoc ruling hardened into a general rule, hence the omission of the reference to the island of Aesculapius in the legal texts.

45 Suet. Dom. 7.1; Dio 67.2.3; D. 48.8.6. Bradley 1984:128 credits the legislation to Nero. That is possible if the consul Neratius referred to in D. 48.8.6 is the jurist Neratius’ father rather than the jurist himself. But on the whole Suetonius’ version is to be preferred.

46 See Levy 1963:2.374-5; Volkmann 1969:85 n. 3; Robinson 1981:225.

47 The crucial passage is D. 48.18.8 pr.: �I do not think that evidence under torture should be used in every case or with respect to every person. [But] when capital and aggravated crimes cannot be uncovered except through the evidence of slaves under torture, I consider such evidence most efficacious in ascertaining the truth, and I propose that it be allowed.’ The writer has argued that Augustus was here discussing the admission of slaves’ evidence against their owners. See Bauman 1974:43-8. The works listed in n. 46 do not consider this alternative. It is however discussed by Brunt 1980:256-9; he takes a different view. Without revisiting the whole issue, it must be said that to take the passage as a limit on torture in general runs up against a serious difficulty. The passage has to be taken to mean that Augustus was interfering with the rule that traditionally required the slave witness to be tortured whenever, on whatever charge, and against any accused whomsoever, he gave evidence. Augustus will have been proposing the abolition of that rule and its replacement by a rule that only applied to capital and aggravated crimes, and even then only when the case could not be made by other evidence. This immediately excludes adultery, which was sub-capital but particularly difficult to prove. But in fact there was never such an exclusion. The examination of Octavia’s ancillae (above) was certainly conducted under torture.

48 On Augustus’ restrictions on manumission see the next section of this chapter.

49 What follows owes a great deal, in stimulation as much as in actual material, to Sherwin-White 1967 and Thompson 1989. Saddington 1975 has also helped to shed light on a neglected field.

50 The Sardinians and Sicilians are discussed in Scaur. 39-45, Verr. II 2.7-9. See also chapter 5. The uses of Graeculus (some of which are noticed in chapter 5) are in Orat. I 47, 102; Place. 23; Tusc. 1.86; Scaur. 4.

51 On the lex Licinia Mucia see Bauman 1983:366-71. Cicero’s attitude: Off. 3.47. Cf. Ascon. 54 St. On Cicero’s defence of Archias see chapter 5.

52 Tac. Ann. 14.42-45, discussed in chapter 8.

53 Juv. 3.62. See also Juv. 3.78, 6.186 and below.

54 That is, as far as the extant sources go.

55 Plin. Ep. 10.40.2; Pan. 13.5; Ep. 4.22. Cf. Sherwin-White 1967:76-8, making the pejorative nature of Graeculus very clear: �[It] is Latin for “wog”.’

56 Juv. 3.61; 3.77-8.

57 Tac. Dial. 29.1; Flor. 2.13.24. For other examples see Sen. Suas. 1.5; Petron. Satyr. 10.

58 On this see especially Thompson 1989:26-38, 40-7.

59 The laws are lex Fufia Caninia of 2 BC; lex Aelia Sentia of AD 4; lex Junia of uncertain date. An Augustan date for the lex Junia is accepted by Watson 1987:28 and Treggiari 1996:894-5 (contrary opinions in her n. 73).

60 On the contents of these laws see Buckland 1908:533-51; Watson 1987:29-31; Treggiari 1996:894-6. One of the rules laid down that a slave who had been punished by his owner by way of shackles, branding, torture, condemnation to fight in the arena or imprisonment would, on manumission, have the status of a dediticius, an enemy who surrendered at discretion. Although becoming free, he was ineligible for citizenship and suffered other disabilities. Gai. 1.25-27. But his criminal record as a slave was liberally interpreted. Torture that had not extracted a confession was disregarded, as was shackling if applied by only one of several co-owners: �It befits humane reasoning to favour the unfortunate’ PS 5.12.3, 5. A slave manumitted informally or when less than thirty years old only acquired the status of a Junian Latin. Watson 1987: passim. The vexed question of Junian Latinity is taken as far as we need by Treggiari 1996, 895-6: �Half-citizenship...like that of Latin colonists of an earlier age.’ One doubts whether the classical jurists (Gai. 3.56, 1.29, Just. Inst. 1.5.3) knew what it was. Did Caracalla know in 212 when he excluded dediticii from the grant of citizenship to all free inhabitants of the empire?

61 Suet. Aug. 3-4. Watson 1987:29 thinks that Augustus wanted to reduce the number of freedmen because testators used to emancipate all their slaves in order to have many freedmen following their biers. Cf. Dion. Hal. 4.24.6. But was this a problem calling for an ideological intervention? With colluvio in Suetonius’ text cf. conluviam istam in Cassius Longinus speech. See n. 32 above.

62 Cf the remarks of Thompson 1989:104-9 on physiognomonia.

63 Modern opinion is divided on the evidence of Suetonius and Dio. H. Last, CAH 1st edn, 1966, 10.432-4 accepts it unreservedly. Watson 1987:29 rejects it. Treggiari 1996:896 cites a rejectionary view but does not state her own position. J.A.Crook, CAH 2nd edn, 10.103­4 links the lex Fufia Caninia to the reduction of free handouts of corn to 200,000 recipients. But then why did the law survive Augustus?

64 See Watson 1987:31-2.

65 Plin. Ep. 8.14. Pliny tried to prevent the reversal but was defeated by a sudden coalition between two opposing points of view.

66 All necessary information on Claudius’ citizenship policy is in Sher­win-White 1973:237-50 and passim. On Claudius’ intervention in favour of sick slaves see above.

67 Auguet 1994:62-8, 93-6.

68 Chariot races went back to 366 BC. The first gladiatorial contests were staged in 264. Venationes (�hunts’) appeared in the first century BC, which is when the games began being used as an instrument of electioneering propaganda. W.H.Gross, Kl.P. 5 (1975), 312; Auguet 1994:19, 25. Non-lethal forms continued to be staged in the Principate. D. 48.19.8.11 has compulsory public entertainment (pursuant to criminal sentences) provided by �those who take the part of hunters, or perform Pyrrhic dances, or provide some other kind of entertainment by mime or other bodily movements’.

69 Cf. Auguet 1994:191.

70 Ira 3.3.6; Clem. I 13.2, 5.2, 25.1; Epp. 14.4-5, 7.2.4, 90.45, 95.30.

71 Burnt alive in Plin. Pan. 33.3-4; to the beasts in Suet. Dom. 4.1. Two separate incidents are possible, but Pliny may have reworked the material in the interests of elegance.

72 Trajan, the focus of Juvenal’s �Bread and Circuses’, was inordinately fond of games. On his return from Dacia he gave 107 entertainments over 123 days, taking in 10,000 gladiators and 11,000 animals. Dio 68.15.

73 See n. 40 above.

74 On these late developments see R.Gross, Kl.P. 2 (1967), 569.