Statutory relief for non-Romans: the lex Calpurnia

The absolution of Galba is the low-water mark in the long history of starts and stops that marks the decision-making of the Roman people. For sixty years the overall trend had been upwards, there had been a growing desire for reform.

Calpurnius Piso’s lex Calpurnia repetundarum created the first permanent jury-court (quaestio perpetua), and it did so in the area of exactions from non-Romans.⁴⁰ It set up a court composed of a panel of jurors⁴¹ drawn exclusively from the senatorial order and sitting, as the special commissions had done, under the presidency of a praetor. The peregrine praetor, who was responsible in general for cases in which non-Romans were involved, was appointed as the first president of the court.⁴² The court’s function was to investigate claims lodged on behalf of non-Romans for repayment of money exacted by Roman magistrates.⁴³ Claims were brought through Roman patroni, thus following what had been done, for example, at the Canuleius commission. The court’s procedure was based on the legis actio sacramento, an ancient process that can best be described as a bet, the lodgement of a sum of money by each party with the winner taking all.⁴⁴ If the court ordered restitution, it was for simple repayment of the amount exacted. The strictly penal aspect was infamia, the disgrace resulting from an adverse decision.⁴⁵

Cicero looked back to the lex Calpurnia as the great pioneer, the charter of provincial rights. Cicero spoke with the authority of a specialist in the repetundae laws:

The existing repetundae practice is well known to all of you, but if experience is the best teacher it must be best known to me.

(Rab. Post. 9)

In no other area of expertise does Cicero make such a claim. His enthusiasm is amply borne out by a wealth of laudatory statements by him. The following composite is our first example:

C.Papirius Carbo [tr. pl. 131] was the best patronus of his day. During his pre-eminence there was an increase in the number of cases. This was partly due to an innovation dating back to his youth, namely the creation of the first permanent jury-court, the repetundae court established by L. [Calpurnius] Piso’s law...It is now [44 BC] less than 110 years since the enactment of L.Piso’s law of repetundae, the first of its kind. Afterwards came many laws, each harsher than the one before. So many people tried and convicted, such a fierce war [the Social War of c. 90-88 which pitted the Italian allies against Rome] which was stirred up by [exactors’] fear of the courts, such frightful pillaging and plundering of the allies [provincials] when the laws and the courts were suppressed!

(Brut. 106, Off. 2.75 adapted)

The harsher laws that followed the lex Calpurnia began with the lex Acilia repetundarum of 123/122. This law, the third in the series of repetundae laws, raised the amount to be repaid to double the amount that had been exacted. Harshness was intensified under subsequent laws that formally sealed the link with maiestas minuta by prescribing capital penalties for exactions in circumstances of excessive brutality.⁴⁶ One of the many borrowings from the second-century special commissions was the rule that the patroni appearing for provincials should be the persons chosen by the provincials themselves. Cicero gives this point special prominence in his prosecution of C.Verres for repetundae in 70 BC:

Recently L.Piso [pr. 74] defeated Q.Caecilius in an application to prosecute P.Gabinius. Piso succeeded because the Achaeans [the provincial complainants] had chosen him as their patronus.

(Div. in Caec. 65-6 adapted)

The Verrines also provide the most decisive statement of all. Cicero is replying to a defence claim that in Sicily only the provincials are Verres’ enemies; Roman businessmen like him:

The whole repetundae law was framed for the benefit of the allies. When Roman citizens are robbed of money they simply claim restitution by an action under the private law. This law is for the allies. It is the charter of foreign nations. It is their citadel—somewhat less fortified than before, but still their only hope.

(Verr. II 2.15, Div. in Caec. 17-18)

The citadel is less fortified than before because of the law’s recent failure to protect the Sicilians against the depredations of Lepidus and Antonius, respectively dating to 80 and 74 BC.⁴⁷ Although Verres is being charged under Sulla’s repetundae law of 81/80 BC, Cicero clearly implies that the laws prior to that had been more effective in protecting provincials. Thus his reference to â€?this law’ is not a specific reference to Sulla’s law. It is a reference to the repetundae laws as a whole.

The monumental role assigned by Cicero to the lex Calpurnia as the pioneer in giving statutory relief to provincials is accepted by most scholars.⁴⁸ A recent attempt has however been made to dislodge the lex Calpurnia from its pedestal. Richardson (1987) flies in the face of the Ciceronian evidence and claims that the primary purpose of the lex Calpurnia was to provide a remedy for Roman citizens.⁴⁹ His argument, if I understand it correctly, is that it was not until the third repetundae law, the lex Acilia repetundarum of 123/122,⁵⁰ that protection for non-Romans was brought into it, when claims for restitution were granted to

Any person who is a member of an ally, or is of the Latin name, or is a member of a foreign nation or lives under the sovereignty or friendship of the Roman people.

(lex Acil. 1-2)

There are two prime weaknesses in Richardson’s case. The first is that he rejects Cicero’s repeated assertions, always a hazardous operation against an ancient writer who was there, and doubly so where the assertions are the fruit of a special interest and special expertise. Secondly, where are the oppressed citizens desperately seeking relief? We have a long line of oppressed non-Romans culminating in the Galba affair which was the last straw and was followed, in the very same year, by the lex Calpurnia. What prompted the legislators to go off at a tangent and enact a remedy for citizens who already had an adequate resource in the private law?⁵¹ It was hard enough to get the casuistic Romans to change the law in the absence of a pressing need, but here we are asked to believe that they ignored the real problem and legislated for a fantasy. In any case, if they did do just that, what caused them to change their minds a mere twenty-five years later? That is to say, what happened to the citizen’s remedy under the lex Calpurnia when the lex Acilia was passed? The latter was simply a restatement of the lex Calpurnia?⁵² albeit with some procedural changes.⁵³ And if by any chance the citizen’s remedy was preserved by the lex Acilia, what had happened to it when Cicero defined â€?this law’ in 70 BC?

One or two of Richardson’s technical arguments call for a specific reply. If the inclusion of non-Romans in the lex Acilia was a complete innovation, why does the lex Acilia rule against double jeopardy: â€?In regard to any person acquitted or convicted under the lex Calpurnia or the lex Junia, such person may not be summoned under this [Acilian] law’?⁵⁴ Where was there a danger of double jeopardy between apples and oranges, that is, if the lex Calpurnia and the lex Junia dealt with claims by citizens, the lex Acilia with claims by non-citizens? Richardson fares no better with his trump­card, the fact that the legis actio sacramento was not available to non-citizens.⁵⁵ It is of course quite true that the procedure under the Calpurnian and Junian laws was based on that legis actio (lex Acil.

The first phase in the evolution of the repetundae laws takes us up to the lex Acilia. We have identified as much of that law as we need, and there is not much to be said about the shadowy lex Junia that was passed at some point of the interval between the Calpurnian and Acilian laws. Speculation about the date and content of the lex Junia has not come up with anything of note.⁵⁸ The only thing that can be said with some assurance is that this law must in some way have improved on the first venture into statutory protection for non­Romans. The alternative, that it took a citizen-oriented lex Calpurnia a stage further, merely serves to confirm how unconvincing that interpretation of the lex Calpurnia really is. How much more spoon­feeding did the citizen-litigant need?