CITIZENS AND HONESTIORES

The honestioreslhumiliores distinction was not the only distinction of which Romans took account in administering the law. Calli- stratus wrote that slaves were traditionally punished more severely than free men, and men of bad reputation (famosi) more severely than men of good reputation (integrae famae homines).¹ The latter division is clearly not the distinction between honestiores and humiliores in one of its guises: the differential punishment of fa­mosi and integrae famae homines reveals something about the moral and social attitudes of the Romans, but nothing directly about their view of status.² The former division was, according to Gaius, the basic one in the law of persons:

et quidem summa divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut serviJ

Callistratus’ statement that slave criminals were treated more severely than free men needs no elaborate comment.⁴ Certain

¹               Dig, 48.

²               Cf. Dio 56. 10. 1: different penalties for bachelors and for married men. This is relevant to a discussion of Augustan social legislation, but not to the Roman view of status.

³               Gai.

⁴               On the unequal punishment of the free and unfree see Mommsen, Strafr. 1032-3. In Imperial times it was not completely true that the slave was pro nullo in civil and praetorian law. But he was only brought into court to be punished or to witness under torture. See Buckland, op. cit. 64; Dig, 28. 1. 20. 7; 28. 8. 1 praef.; 50. 17. 32. See also Dig, 48. 2. 12. 3-4 (slaves in public courts); Dig. penalties were traditionally ‘servile’,¹ though, significantly, some of them came to be applied to free men of low status.² But the division between slave and free is too broad for our purposes. There are other divisions that neither Gaius nor Callistratus touches upon.

In a.d. 17 when the senate rounded on astrologers, the citizens among them were exiled, but the foreigners were put to death.³ Again, during the reign of Marcus the governor of Lugdunensis separated Christian citizens from aliens, and after consulting the Emperor about their punishment, sent only the latter to the beasts, with the exception of Attalus, a citizen.⁴ Citizens, then, might secure a milder penalty than aliens for the same offence.

Further, it was a basic principle of Roman law that aliens, being outside the ius civile, were subject to magisterial coercion (coercitio).

48. 8. 11. 2 (slaves sent to the beasts only with the permission of a magistrate); Coll. 3. 3; cf. Dig. 1. 6. 2 (Pius); Gai. Inst. 1. 53 (Pius); Coll. 3. 2 (PS); CTh. 9. 12. 1. 2 (a.d. 326) (all four references show that the restrictions on the master were extended).

• ¹ Tac. Ann. 15. 60. 1, for the phrase serviles poenae; and see, e.g., p. 127.

²               Dig. 48. 19. 28. 11; CJ 9. 47. 6 (a.d. 214, illegally used); ibid. 11.

³               Coll. 15. 2. 1; cf. Dio 57. 15. 8; Tac. Ann. 2. 32. 3. On citizenship see A. N. Sherwin-White, The Roman Citizenship (1939), and Kornemann, RE s. 1 (1903), 304 ff., s.v. civitas. On aliens (peregrin!) see Buckland, op. cit. 96 ff.

⁴               Eus.

³               St. Paul: Acts 22: 24 (Jerusalem); 16: 37 (Philippi).

⁶ FIRA¹ i, no. 103, p. 496, 11, 11. 10 ff.

violence which dealt with appeal.¹ Further, the subject of appeal is treated at length in the Digest. So the peasants were correct in believing that officially, at any rate, appeal was not obsolete in the late Antonine age.

Discrimination in favour of citizens as opposed to aliens was thus a permanent feature of the Roman judicial system. It was prac­tised in all spheres of law where aliens were technically excluded, as from the ius civile, and where they were not, as in criminal law as administered by the cognitio procedure.

Within the citizen body itself there were some who possessed restricted rights, for example, the infames and intestabiles, who have already been identified. Larger and more significant than either of these groups is a third, the freedmen.href="#_ftn237" name="_ftnref237" title="">^{[237] [238]} Inequalities with regard to family rights affecting freedmen were the logical result of the laws relating to slavery, and were not corrected until the second century a.d. As for intermarriage, by Augustus’ regulations senators were not permitted to marry women of slave origin.^[239] Augustus had thus abandoned what appears to have been the Republican practice of preventing marriages between freedmen (and freedwomen) and all other Roman citizens.^{[240] [241]} In public law, freedmen could not hold Roman magistracies and priesthoods or vote in elections, were forbidden access to the legions, the prae­torian guard, and the urban cohorts, and could not rise into the curial and equestrian orders.³ In criminal law, the feeling that freedmen were inferior is reflected in punishments awarded by judges proceeding extra ordinem.

If ordinary citizens were favoured above freedmen, citizens of high status were favoured above rank-and-file citizens. This becomes apparent when we consider, first, courts, and second, punishments.

It was suggested in an earlier discussion⁴ that defendants from the senatorial, equestrian, and curial orders gained advantages from trial before the Senate (especially in the case of senators) and before the Emperor. It was observed that ‘ordinary’ provincials of citizen rank were sometimes tried before Roman courts, but seldom in situations which were favourable to them, and seldom by their own choice. Those provincials who won a sympathetic hearing from the Emperor, whether as defendants or as accusers, seem to have taken the initiative and approached him in person, or to have gained access to him through a governor or through friends in Rome. But they were not exclusively citizens, and those who were citizens had other assets in addition to citizenship.

¹Tac. Ann. 13. 22.                                                           ² Tac. Hist. 1. 46.

³               See Tac. Ann. 13. 32. 1 (S.C. Claudianum of a.d. 57); 14. 42 ff. (murder of Pedanius Secundus, a.d. 61); Pliny, Ep. 8.14. 12 ff. (murder of Afranius Dexter, A.D. 105).

⁴  Seechs. 1-3.

citizens might have been entitled to choose between trial at Rome and trial by the local courts. However, the sources give the impression that rdectio Romain was far from being a universal prerogative of citizens in the late Republic and early Empire, if it had been at any stage. It seems that by the Ciceronian age, in any particular case (and very few are known), the governor was not compelled to grant the request for reference to Rome, and that only members of the Roman aristocracy domiciled or with interests abroad, and a few individuals who had received the right as a special privilege, were likely to lodge a successful petition.¹

In the sphere of penalties, the legal sources make clear that citizenship did not carry much weight. This may be shown with reference to beating and execution. The African peasants protested at being beaten, but they might have expected it. They were representatives of a group in whose welfare the Emperors might seem to have lost interest long before, homines rustici tenues. This phrase, which the peasants applied to themselves, finds an echo in Callistratus, who stated unambiguously that ‘hi. .. qui liberi sunt et quidem tenuiores homines’ (free men and men of low rank) were liable to be beaten, and that only honestiores were exempt. The statement is authoritative, for it repeats the substance of Imperial rescripts.² A rescript of Septimius Severus may have been one of those which Callistratus had in mind. It read:

decuriones quidem, item filios decurionum fustibus castigari prohibi­tum est.³

Neither jurist nor Emperor was writing of a post-Commodan development. The exemption of decurions from beating was a long-standing rule {prohibitum est).[243] The plea of the peasants for a recognition of their rights was thus pathetically anachronistic.

Secondly, with respect to the death sentence, citizens could hold up the execution of the penalty of death by appealing to a higher judge. However, the position of decurions and other honestiores vias preferable: they were not subject to the death penalty at all, except in the case of a few very serious offences such as maiestas.

In general, an explanation is required for the absence of reference to citizenship among the criteria for legal privilege which can be assembled from the juristic writings. Perhaps this omission is not attributable to the classical jurists themselves, but to their successors, and above all, to the compilers of the Digest who excerpted the writings of the classical jurists, not without alteration and condensation. This suggestion is worth careful study, especially in the light of the history of the transmission of the text of the Fabian law on kidnapping. The Fabian law seems to have been designed originally (perhaps in the second century B.c.) to protect Roman citizens and freedmen who had gained their liberty in Italy.¹ But there is no mention of either of these categories in the section of the Digest devoted to the law; ‘Gaius’ and ‘Ulpian’ wrote of the liber homo, and ‘Callistratus’ of the homo ingenuus et libertinus.^z The corruption can be traced fairly securely to the sixth century, as the versions of the law given in Paul's Sentences (late third century) and the Collatio (late fourth) are evidently closer to the original.³ But the argument that the texts dealing with legal privileges were systematically rewritten is less convincing. The texts are several and scattered, and the task of purging anachronisms was thus less straightforward. (Although the com­pilers professed to be bent on bringing the jurists up to date, it can be shown that they fell far short of their goal.) It is as likely that the texts with which we are concerned are virtually untouched as that they are rewritten. In any case, our knowledge of the system

¹               On the Fabian law, Mommsen, op. cit. 780 ff. For the favourable position of freedmen emancipated in Italy, Petr. Sat. 57 (exemption from poll-tax and land-tax).

² Dig. 48. 15. 4 (Gaius); ibid. 1 (Ulpian); ibid. 6. 2 (Call.).

³               Coll. 14. 3. 4: ‘lege autem Fabia tenetur, qui civem Romanum eumve, qui in Italia liberatus sit, celaverit vinxerit vinctumve habuerit, vendiderit emerit, quive in earn rem socius fuerit...’ Cf. the less detailed and less accurate PS 5. 30B. 1 ( — Coll. 14. 2. 1): ‘lege Fabia tenetur, qui civem Romanum ingenuum libertinum servumve alienum celaverit vendiderit vinxerit com- paraverit.* It is perhaps curious that these late compilations retain categories which were no longer significant. The occurrence of a concept in a legal text is of course no guarantee of its contemporary relevance.

of privilege is not derived entirely from the Digest. The information contributed by the Digest complements, and is completely com­patible with, the information drawn from other sources. Posses­sion of citizenship did not ensure privileged treatment in the law courts: there were citizens amongst the humiliores.

In addition, possession of citizenship was not necessary for ad­mission into the ranks of the privileged. Just as citizens were not ipso facto recipients of privilege, so non-citizens were included in their number. For not all decurions were citizens; none the less, decurions were a privileged group before the law.¹

style='font-size:11.0pt;line-height: 115%'>All members of local councils of ‘Roman’ cities were citizens. However, until the early second century A.D. decurions of cities of ‘Latin* right gained the citizenship only by taking up a magis­tracy. The situation changed, perhaps in Hadrian’s reign, with the introduction of Latium maius, now opposed to Latium minus.¹ Decurions of a city which had successfully sued for Latium maius (for the Roman authorities do not seem to have granted this status to all ‘Latin* cities by decree) became Roman citizens from the time of entry into the council. The reform, however, left quite untouched the mass of cities in the East, which had not adopted Roman forms of local government (and were thus neither coloniae nor municipia). Citizenship was distributed altogether more sparsely in the East than in the West, because it was given piecemeal to individuals and families rather than en bloc to whole cities or ruling elites. Many of the Eastern councillors would have received such ad hominem grants, or inherited citizenship from their ancestors; but citizenship could not have come universally to councillors until the Emperor Caracalla conferred it on virtually the whole free population of the Empire.³

Thus the honestioreslhumiliores distinction cuts across the citizen/alien distinction: there were citizens (and aliens) on both sides of the dividing line.

¹               There is no suggestion in any source that only decurions who were citizens were privileged in the sight of the law. For other aliens with dignitas see Dio 49. 22. 6 (Antigonus; M. Antonius’ treatment of him was unprecedented and reprehensible); cf. 50. 13.7 (lamblichos, Arabian king; executed by M. Antonius after torture); Tac. Ann. 6. 40. 2 (Tigranes; succumbed to supplicia civium).

² Gai. Inst. 1. 96; ILS 6780 (Gigthis, N. Africa); Mommsen, GS iii. 33 ff.

³ See Chr. Sasse, Die Constitutio Antoniniana (1958).

We must now consider the common belief that the former dis­tinction replaced the latter. The citizen/alien distinction, so the argument runs, was pre-eminent in the first century of the Empire, and was overshadowed, or replaced, by that of the honestiores) humiliores in the early second century.¹

This doctrine rests principally on two theories. According to the first, the decline of provocatio—with which the Julian law that dealt with appeal was peculiarly associated—was complete by about the Trajanic period. A new appeal system, appellatio, which grew up soon afterwards, was available to honestiores but not to citizens in general. According to the second theory, re­scripts of Hadrian and Pius herald the emergence of the honestiores) humiliores distinction.

I have argued elsewhere that so-called provocatio and so-called appellatio were one and the same, and that the clauses in the Julian law applied to ‘both’, and had not lost their efficacy (such efficacy as they had in the first century) by the early second or late second century.² As for the emergence of the honestioreslhumiliores dis­tinction, the ‘legislation’ of Hadrian and Pius relates only to the differential-penalty system, and discrimination in favour of status involved more than this. Moreover, this ‘legislation’ did not in­stitute the differential-penalty system, which was in existence in essentials by the reign of Hadrian.³

Thus the ‘replacement’ of the citizen/alien distinction by the honestioreslhumiliores distinction cannot be dated to the early second century, or not by the arguments considered above. But

¹               A. H. M. Jones, Studies in Roman Government and Law (i960), 64-5; A. N. Sherwin-White, Roman Society and Roman Law in the New Testament (1963), 174.

²               JRS 56 (1966), 167 ff., pass., against Jones, op. cit. 53 ff. No sharp contrast can be drawn between appeal in the first century and appeal in the second. The evidence, such as it is, suggests that a more complicated system might have been evolved in the second century to handle the mounting volume of business which came before the appellate courts—but that is all. For a discussion of the two alleged appeal cases found by Jones in the pre-Hadrianic period see pp. 75-6 (with JRS 56, 182-5), and PP· 74“5 (with JRS 56, 181-2) (St. Paul; Bithynian Christians). Sherwin-White added four more cases: EJ 311. ii. 42-7; Pliny, Ep. 6. 31. 3; Tac. Ann. 16. 10. 2 (Roman Society, 60); Dio 60. 24. 4 (Roman Citizenship, 214). On the view that appeal became available to honestiores only see JRS 58 (1968), 54.

³               See ch. 5.

did such a development occur at any stage? If so, it would follow that the former distinction was once as fundamental as the latter ‘became’; and, conversely, that the latter distinction was at one stage unimportant.

How did citizens fare in the early Empire? There are signs that the Roman authorities were not oblivious of the safety of their citizens in the provinces. Cyzicus lost its liberty once, perhaps twice, and Rhodes once, for committing violence against Romans or for putting them to death. (The status of the citizens involved is unknown.)¹ In a Roman colony it appears that arrest, beating, and imprisonment were normal for aliens, but that it was potentially dangerous to give citizens the same treatment. Citizens may also have had a freer choice of court, even under the early Empire. So much is indicated by the career of St. Paul.² It was of course not always possible to keep governors in check. Fonteius Capito made a mockery of the institution of appeal by judging an appeal lodged against himself. Galba crucified a citizen for poisoning, ignoring the man’s invocation of ‘the laws’ and his cry that he was a Roman citizen.³ Their acts were reminiscent of Verres’ treatment of Gavius, which, in Cicero’s mind, shattered the hopes of all homines tenues who held the citizenship.⁴ The disapproval which colours the narratives of Cicero, Suetonius, and Dio may suggest that the events they describe were unusual. The com­parative respect which Pliny on one occasion showed for the citizen­ship may have been more typical of the attitude of governors: he separated the citizen Christians from the rest, who were arbi­trarily executed.⁵

The concentration of the bulk of the references of this kind in the period from the 70s B.c. to the turn of the first century a.d.

’ Cyzicus: Dio 54. 7. 6; 57. 24. 6; Tac. Ann. 4. 36. 2-3; cf. Suet. Tib. 37. 3. Dio records loss of freedom under 20 B.c. and again under A.D. 25, where he uses the word av6i$ (‘again’)· Rhodes: Dio 60. 24. 4. Miletus may have lost its free­dom also (IBM 921a), but perhaps because of stasis.

²               Acts 16: 22 ff.; 22; 24-5 and 29; 2 Cor. 11: 25. On the sending of Paul to Rome, a possible survival of reiectio Romam* see above, p. 76.

³               Capito: Dio 64. 2. 3 and JRS 56 (1966), 176 n. 91. He was put to death, but not for this action (as Dio implied). See Tac. Hist. 1. 7. Galba: Suet. Galba 11.

⁴ Cic. in Verr. 5. 167; cf. ad fam. 10. 32. 2 (Balbus).

* Pliny, Ep. 10. 96, and above, p. 74.

may indicate that citizenship was afforded more respect then than later. Tacitus, writing under Trajan and Hadrian, remarked on a slackening of standards in the award of citizenship—which he appears to link with the growth in the citizen population.¹ The truth behind this partisan, senatorial complaint (which contrasts with the eulogy of citizenship of the provincial Aristides) is that the privileges of citizenship were the property of a broader section of the population of the Empire than ever before. It is not our concern to judge whether the moral tone of citizenship was lowered as a result; but its privileges had evidently become less tangible. For example, appeal, and the less well authenticated reiectio Romam, probably worked smoothly only when the citizen population abroad had the character of a closely-knit, exclusive élite. The former institution alone seems to have survived the late Republic, and its working became less and less effective: the Romans never evolved a machinery adequate to cope with the additional appeals which necessarily accompanied a large increase in the number of citizens. Meanwhile, in Rome in the early Empire, institutional changes had contributed to the downgrading of the citizen. The substitution of courts with overlapping jurisdictions for a uniform court system, and of a flexible for an inflexible penalty structure, gave judges more opportunity to exploit the social divisions within the population. The result was the widen­ing of the gap between the privileged groups and the lower orders, whether citizens or aliens.

However, the decline of citizenship took place over several centuries, and was not confined to the period from the Ciceronian age to the reign of Trajan.^{[244] [245]} Moreover, it may be merely an accident of the sources that the evidence of consideration (and conspicuous lack of consideration) for citizens falls mainly within those 175 years. A solitary piece of information from a non-contemporary source (Eusebius, EH 5.1) confirms that the differential treatment of citizens and aliens persisted into the Antonine period. Pliny’s action referred to above was matched by that of the governor of Lugdunensis in Marcus’ reign in decapitating citizen Christians and sending aliens to the beasts. In fact, the citizen/alien distinction was (largely) set aside by the judicial authorities only after the edict of Caracalla was issued. In any case, the consideration given to citizenship in the early Empire appears insubstantial, when set beside the benefits granted in the same period to those with other attributes. Praetors and judges in administering the civil law used their discretionary power to discriminate in favour of men of means and social standing; judges investigating cases extra ordinem awarded differential penalties on the basis of status; the courts of the Senate and the Emperor were more accessible and favourable to the aristocracy than to the lower orders.¹ In all these ways citizenship was shown not to hold the key to the most significant legal privileges. In the first century as in the second tenuiores, members of the lower orders, did not count for much in comparison with men of rank, whether or not these were citizens.

To sum up: it is permissible to speak of a decline in the value of citizenship in the period from Augustus to Caracalla, as long as two points are kept in mind. First, there were some practical advantages in being a Roman citizen throughout the period under discussion. The eagerness of individuals and whole communities to obtain Roman status in the second century, as well as in the first, is undeniable, and it would be wrong to imagine that the petitioners were moved simply by an empty, snobbish wish to be Roman.² Second, citizens of high status and citizens of low status were at no stage in the period on an equal footing. Gradations within the body of citizens made equality, whether political or judicial or economic, impossible to attain. Just as magistracies were not in practice open to all citizens, but only to those who were qualified financially, similarly only a minority of citizens were eligible for

* In general, the interest of an Emperor in the welfare of citizens in the pro­vinces does not make it any less likely that he would aid free aliens. For the Cnidos case see FIRA² iii, no. 185, p. 582. Only some of the African peasants who petitioned Commodus (see p. 261 n. 6 above) were citizens. Dig. 48. 6. 6 may be relevant: Pius instructed a governor to investigate a physical attack on a young man whose name indicates he was a citizen, but who is described by the Emperor simply as ‘freeborn’ (ingenuus).

¹ On both the decline of citizenship and the continued enthusiasm of would- be citizens for it see Sherwin-White, Roman Citizenship, chs. 9-10, pass. preferential treatment in the law courts. In Roman society legal and political capacity depended, not only upon the persona or character of the individual as defined or recognized by the civil law (free or slave, citizen or alien), but also upon his background or status.¹

¹ On the relationship between the concepts of citizenship, class, and status see T. H. Marshall, Citizenship and Social Class and Other Essays (1950), 28 ff. ; also W. G. Runciman, op. cit. (p. 259 n. 2), 34 ff.