DIFFERENCES IN RANK AND THE VALUE OF LEGAL PRIVILEGE
The jurists took the curial order as the point of division between the privileged and non-privileged. For them the decurions formed a standard group, the basis of whose privilege could be easily investigated.
They recognized the existence of groups such as veterans, which were of equal standing, but did not trouble to point out that superior dignity and prestige were possessed by higher orders. However, if the jurists passed over the gradations within the honestiores, judges were fully conscious of the fact that the honestiores were not a homogeneous group. This should be borne in mind as we consider whether legal privilege was a thing of value or just another mark of social eminence. style='text-indent:18.0pt'>Legal privilege, to be at all useful, had to be respected by judges. The immunity of senators and equestrian officials from certain punishments could, in the normal scheme of things, be disregarded only by an Emperor, and an oppressive act of an Emperor would not pass unnoticed. On the other hand, it was the responsibility of a governor to arrest, try, and punish a member of the provincial gentry. Only in one circumstance was the Emperor required to be consulted before the governor proceeded to the punishment, when decurions were on trial for capital offences; and this seems to have been a late second-century development. Otherwise, decurions, in theory, had no more access to the Emperor’s court than had any other provincial citizen.Why did the Emperor intervene when decurions were defendants in capital cases? This was not bureaucratic interference for its own sake. There is only one satisfactory explanation: decurions and members of curial families had been deported unjustly, and this had been brought to the Emperor’s notice. If it is asked why the Emperors intervened only so far and no further, the answer, presumably, is not that governors behaved differently when the charge was not capital, but that the Emperor’s court was not equipped to handle every case involving provincial aristocrats.
Deportation was a permitted punishment for defendants of curial rank.
What of the so-called ‘plebeian’ penalties from which they were immune? The Ambrosius to whom Severus and Caracalla addressed a rescript in A.D. 198 was apparently a decurion, or the son of one, and it is a fair assumption that the proconsul had subjected him to corporal punishment. Caracalla wrote to Gemi- nius that decurions were not to be sentenced to forced labour. Geminius might have been a governor, in which case Caracalla was presumably reprimanding him for breaking this rule. It is more probable that he was a decurion, who had been set to do forced labour. The Emperor Severus Alexander was approached by the son of a woman who clearly had been put to work in the mines. Alexander ruled that this was irregular, as she was the daughter of a decurion. It would be interesting to know how many cases of this kind reached the Emperor. A governor was quite capable of obstructing appeals by force, as is demonstrated by a letter of Severus Alexander to the Bithynian provincial council. Some provincial notables might well have finished their days in chain-gangs in the mines.1A governor might take the further step of depriving a decurion of his life. The Marius Priscus affair of Trajan’s reign is unlikely to have been the last of its kind. Governors no doubt continued to be influenced by pressure groups, which were ready to pay for the disposal of rivals and enemies. Members of the provincial nobility could be caught up on either side, as plotters or as victims.[246] [247] In intrigues of this sort the stronger did not always prevail, for the weaker might become strong with the aid of a powerful ally. Patronage was an important factor in local politics in all periods.[248]
To sum up, the extent of Imperial control over officials in the provinces should not be overestimated. There was always the danger that governors might take arbitrary action at the expense of members of the provincial aristocracy.
Imperial rescripts and juristic treatises which emphasized the legal immunities of decur- ions and their families did not improve their situation, if the Emperor’s authority could not be enforced. Indeed, the issuing and reissuing of Imperial rulings, and the comments of the jurists, only underline the fact that the decurions were further from their Imperial protector than was safe. In contrast, the privileged status of senators was seldom referred to in the legal texts. There was no need to mention it, much less give it stress.The provincial aristocracy, similarly, was more exposed than the Roman aristocracy to the rising tide of higher penalties. In the late third-century work, Paul’s Sentences, where this development is most clearly attested, reference is made to honestiores as a whole, and no hint is given that decurions were the first to succumb.[249] But again, their lack of political influence and their remoteness from Rome probably told against them.
In another way senators and equestrians were better placed. They, in company with certain other favoured individuals or groups (soldiers, for instance), were excused municipal liturgies. Veterans had lost their exemption from ‘patrimonial’ liturgies— which involved financial expenditure—but retained an immunity from ‘personal’ liturgies—which did not involve expense. Above all, they were not required to join the local council. This is the implication of a rescript of Severus Alexander to one Felicianus: ‘Veterans who, when they might have safeguarded the advantages gained for them by immunity, preferred to become decurions in their city cannot return to the state of immunity which they abandoned...’ A terse comment of the jurist Paulus belongs to about the same period: ‘But veterans who allowed themselves to be enrolled into the council are compelled to perform liturgies.* Callistratus, citing the Emperor Pertinax, issued a similar warning to traders?
It appears that at one time it had been possible for those with immunity to gain the decurionate and avoid the liturgies that later went with it.
Veratius Severianus of Naples volunteered for the offices of aedile and duumvir in his city, and in addition offered himself for liturgies, even though he could have claimed exemption because he held a priesthood. His adlection to the council is recorded separately, and not as another instance of his unwillingness to make use of his immunity. It seems reasonable to suppose that he might have remained an ordinary decurion and still preserved his exemption. The inscription recording his career belongs to the first half of the second century A.D.1The inscription and the legal texts cited above lend support to a proposition which might be argued in detail, that the position of decurions altered in a fundamental way in the course of the second century. Decurions, as the leaders of their communities, had always borne the brunt of public liturgies. The prestige of curial office was generally felt to be sufficient compensation for the expenditure of time, energy, and money involved? There were genuine patriots among them, men like Plutarch, who supervised the measuring of tiles and the delivering of stones and concrete ‘not for myself... but for my native city’.3 But, by the Severan period at least, some considered that the financial costs of membership of the council outweighed its benefits. Those of the immune who were politically ambitious evidently now thought twice about joining the council, since they could not carry their exemptions with them. Others were less fortunate—they were forced to take on office.4
The process of transformation in local government was a gradual one. It would be quite impossible to measure, within a given period, the increase in the cost of curial burdens, or the rate at which office holding in the cities lost its voluntary nature. But our inability to make these calculations and others of the same kind does not prevent us from weighing the benefits of legal privilege against the benefits of immunity from liturgies.
No1 C x 3704 = ILS 5054.
2 There were some in all ages who thought otherwise. For an early reference (Augustan) see Dig. 47. 10. 13. 5; cf. Apul. Met. 4. 8 (Antonine).
3 Plutarch, Mor. 811 B-C.
4 See, e.g., Dig. 50. 2. 6. 4; cf. 50. 1. 38. 6 (magistracies).
decurion would have been in any doubt as to which possessed the greater intrinsic value. Public liturgies were generally costly, and they came round fairly frequently. Legal privilege, on the other hand, was rarely needed and rarely used. Most decurions, it can be assumed, stayed out of the law courts. Legal privilege was thus, at best, a form of insurance, which its holder was able to fall back upon if things went wrong.
It is not difficult to understand why the privileges of decurions were legal rather than financial. While immunities before the law were awarded for social prestige and wealth, immunity from burdens, when it was not granted by the Emperor’s special favour, was usually an indication of power and influence. That decurions lacked financial concessions of any kind was a measure of their political impotence.