HADRIAN AND THE EVOLUTION OF THE DUAL-PENALTY SYSTEM

In Severan practice a penalty belonged to one of two categories, and each category was aligned with one of two broad social groups, in such a way that severer penalties of servile origin were applied to criminals from the lower stratum of society and milder penalties to criminals from the upper stratum.

The dual scale of penalties

The argument for the existence of a dual scale of penalties in the reign of Hadrian depends in part on the edict and rescript already cited? None of the penalties recorded were new.

virtually abolished the difference between citizens and aliens. But the honestiores and humiliores in Hadrian’s time and in the rest of the second century were not, respectively, ‘ "cives Romani” et quelques assimiles’ and 'le reste de la popula­tion’. D’Orgeval’s hypothesis would only begin to be tenable if it were possible to show that Hadrian’s various pronouncements did not contain any acknow­ledgement of status distinctions. To refute it one need not go beyond the several rescripts in which Hadrian instructed judges to give more weight to witnesses of high social rank than to their inferiors (Dig, 22. 5. 3. 1-4; 6).

¹        Cardascia (art. cit. 467-72) in his section on the evolution of the honestiores! humiliores distinction briefly summarizes the growth of the dual-penalty system (472) and addresses himself chiefly to the passing of the variation of penalty from 'judicial practice’ into 'law’ through 'legislation’.

²        See p. 153 n. 2 above.

³        On escape, Pliny, Ep. 10. 56—7; Dig. 48. 19. 8. 6-7; 50. 13. 5. 3.

HADRIAN: EVOLUTION OF THE SYSTEM 155 The decree banning the execution of decurions for murder is central to the present argument.¹ For a complete system of distinctions is implied by this isolated enactment. It is a fair as­sumption that Hadrian regarded execution of a decurion for other ‘ordinary’ capital crimes as irregular also.² Further, the man who was not to be executed (capite puniri) presumably was meant to be immune from aggravated forms of the death penalty (sum- mum supplicium). That is to say, not only death by the sword, but also death by fire, crucifixion, or wild animals was ruled out? Again, if the secondary punishment for decurions was deporta­tion (poena legis Corneliae), they were unlikely to be sentenced to labour in the mines. Lawyers considered both metallum and de- portatio as alternatives to the death penalty, and both involved loss of citizenship. But of the two, only metallum deprived the condemned man of his liberty. The Romans balked at reducing decurions to a condition tantamount to slavery. Finally, if the most serious of the serviles poenae was not countenanced, it would have been inconsistent if decurions had been subject to other serviles poenae and to beating (servilia verb er a).

As for non-decurions, or ‘plebeians’, it is not improbable that they were subject to death, summum supplicium, and to the custodia penalties as a whole.

A rescript of Hadrian of a.d.

divus Hadrianus in haec verba rescripsit: ‘quin pessimum factum sit eorum, qui terminos finium causa positos propulerunt, dubitari non potest, de poena tamen modus ex condicione personae et mente facientis

* Dig. 48.19.15. Cardascia’s interpretation of this is ambiguous: it represents discrimination, but not full discrimination according to class (art. cit. 331), which was not introduced into the law till the reign of Pius (ibid. 468). He misinterprets Dig. 48. 8. 16, holding that it contradicts 48. 19. 15 (ibid. 327 and n. 7), and elsewhere (ibid. 470 and n. 4) notes that 48.22.6.2 confirms48.19.15.

²I would class as 'ordinary’ capital crimes those for which the statutory penalty or (in the case of crimes handled extra ordinem) normal penalty was interdictio or deportatio, and which were punished no more severely than this (in the case of honestiores) throughout our period. Examples include falsum, vis publica, arson (except in a city, for plunder), homicide.

³               Death by the axe and noose and death by beating were also outlawed, Dig. 48. 19. 8. 1.

magis statui potest: nam si splendidiores personae sunt, quae con­vincuntur, non dubie occupandorum alienorum finium causa id ad­miserunt, et possunt in tempus, ut cuiusque patiatur aetas, relegari, id est si iuvenior, in longius, si senior, recisius, si vero alii negotium gesserunt et ministerio functi sunt, castigari et ad opus biennio dari, quod si per ignorantiam aut fortuito lapides furati sunt, sufficiet eos verberibus decidere.¹

In the rescript there are different penalties for splendidiores personae and for alii (others).

Hadrian ordered the judge to take into consideration the con­dicio personae and the mens facientis when he came to decide on a penalty. The phrase mens facientis echoes a principle which left its mark on much of Hadrian’s legislation: Tn crimes, it is the pur­pose, not the issue, which is tested.’² It was important that the judge should discover whether the offence was committed mali­ciously, or whether the offender was acting under orders, or whether the offence was committed accidentally. This would in-

’ Dig. 47. 21. 2: ‘Divine Hadrian issued the following rescript-“It cannot be doubted that the crime of those who move stones placed to mark boundaries is very serious. Yet on the question of penalty, a limit can be fixed in accordance with the status of the person and the motive: for if those convicted are men of high social station, without any doubt they committed the crime in order to seize the territory of other men. They can be relegated for a term, according as the age of each permits, that is to say, the younger man for a longer term, and the older for a shorter. But if others have done the deed and performed it as a service, they should be beaten and given over to public labour for two years. If they stole the stones out of ignorance or quite by chance, it will be enough to beat them?’ ’ Cardascia (art. cit. 468-9) rejected the Digest text as corrupt, preferring another version, Coll. 13. 3. 1-2. In the latter, id est... castigari is omitted. After relegari we read et sic in biennium aut triennium ad opus publicum dari. This does not make good sense. One might have expected the two penalties of relegatio and opus to have been separated by aut, for in biennium aut triennium belongs to opus publicum.

²       Dig. 48. 8. 14: ‘in maleficiis voluntas spectatur, non exitus’; cf. ibid. 1. 3-4 (cf. Coll. 1. 6); ibid. 4. 1 (cf. Coll. 1. 11); 48. 21. 3. 5; PS 5. 23. 3; etc. evitably bring him to consider the condicio personae. For, in the opinion of Hadrian, splendidiores personae were incapable of com­mitting this particular offence without evil intent—invariably they were after another man’s land. Thus their punishment was harsh, but only in relative terms. In comparison with their social inferiors they got off lightly—the penalty for size=2 face="Times New Roman">splendidiores personae was a mild form of exile, while alii suffered a penalty drawn from the custodia group.¹ In sum, the judge decided how severe the penalty should be by inquiring into the motive of the offender; the type of penalty set depended on the status of the defendant.

The term splendidiores personae is surely an alternative for honestiores, and alii for humiliores. Splendidiores personae were ap­parently men of property, or possessores.¹ Such men in the Roman world tended to have high social standing as well as wealth—the adjective splendidiores, significantly, is a non-economic term. In the same way alii, perhaps largely peasants or employees of land­owners, were for Hadrian men of low status.

This text is the only one of its kind from Hadrian’s reign.^{[152] [153] [154]} In some other decisions Hadrian apparently did not apply the principle of differential punishment according to status, and this might be thought significant. The provincial council of Baetica asked Hadrian for a judgement on the proper penalty for rustling. He replied:

abigei cum durissime puniuntur, ad gladium damnari solent. puni- untur autem durissime non ubique, sed ubi frequentius est hoc genus maleficii: alioquin et in opus et nonnumquam temporarium damnantur... aut si quis tam notus et tarn gravis in abigendo fuit, ut prius ex hoc crimine aliqua poena affectus sit, hunc in metallum dari oportere.^[155]

Later in the century no man of dignitas would have suffered any of these penalties. Ulpian made this observation, when adding to the rescript the comment:

quamquam autem Hadrianus metalli poenam temporari vel etiam gladii praestituerit, attamen qui honestiore loco nati sunt non debent ad hanc poenam pertinere, sed aut relegandi erunt aut removendi ordine.¹ It should be emphatically stated that neither Hadrian nor Ulpian implied that honestiores suffered opus (for example) in the Hadrianic period. Hadrian might have replied differently to the council if Spanish decurions had been among those under arrest and if he had been informed of the fact. His rescript was designed for a concrete situation, and he evidently was not concerned with theoretical possibilities.² In contrast, Ulpian was giving advice of a general kind to governors. When looking for an authority to cite on the punishment of rustling he found this rescript. His legal mind discerned a potential loophole, and he could not quote the rescript uncorrected.

A second text, again from Ulpian’s treatise on the duties of a proconsul, is in some ways comparable:

idem divus Hadrianus rescripsit: ‘Constitutum quidem est, ne spadones fierent, eos autem, qui hoc crimine arguerentur, Corneliae legis poena teneri eorumque bona merito fisco meo vindicari debere, sed et in servis, qui spadones fecerint, ultimo supplicio animadvertendum esse... nemo enim liberum servumve invitum sinentemve castrare debet, neve quis se sponte castrandum praebere debet, at si quis ad­versus edictum meum fecerit, medico quidem, qui exciderit, capitale erit, item ipsi qui se sponte excidendum praebuit.³

*   Coli. ii. 8. 3: ‘But although Hadrian laid down the penalties of the mines, temporary public work, and mortal combat, nevertheless those born of higher status should not receive such penalties, but should be relegated or expelled from their order.’ Cf. Dig. 47. 14. 3. Ulpian found problems of interpretation in the rescript. See Coll. 11. 7. 3-4.

¹       lang=EN-US>Hadrian was giving the most serious penalties for a crime that decurions were not likely to commit, cf. 47. 14. 3. 3 {receptores abigeorum were perhaps more likely to include decurions). See Coll. 11. 3. 1; cf. 11. 4. 1 (fine of rustlers of status).

*   Dig. 48. 8.4. 2: ‘Divine Hadrian also wrote in a rescript: “It was laid down, in order to end the practice of making eunuchs, that those who were convicted of this crime should be liable to the penalty laid down in the Cornelian law, and should forfeit their property deservedly to my fiscus, but that slaves who made people eunuchs should be punished with the ultimate punishment...

HADRIAN: EVOLUTION OF THE SYSTEM IS9 The rescript is in two parts. First, Hadrian refers to an earlier regulation (constitutum est), perhaps a senatorial decree of A.D. 97,¹ which laid down that castration was to be punished by the penalty of the Cornelian Law (deportation)² with confiscation, but that slaves who performed the operation were to be executed. Then, after reminding proconsuls, of their responsibility for aiding vic­tims of castration, he firmly states that the castration of any man, slave or free, willing or unwilling, is a crime, together with the act of offering oneself for castration. For both offences he names death as the penalty.

What does the edict reveal about judicial practice in Hadrian’s reign, before and after it was issued? First, the mere fact that Hadrian cited the S.C. (if it was the S.C.) does not prove that his judges, when called upon to punish castrators or the castrated, had done so with an eye to that social division which the S.C. recog­nized (slave and free), and no other. The penalty set by the S.C. for free men was, of course, the traditional penalty for homicide and other crimes punishable under the Cornelian law. It is note­worthy that this penalty was still mentioned by jurists in the Severan period, and not always with an accompanying acknow­ledgement that Severan courts applied it not to all free men, but to members of the higher orders alone. So Marcianus stated simply that the penalty for falsum or quasi-falsum was deportatio... et omnium bonorum publicatio, adding that slaves were given ultimum supplicium.³ It is necessary to turn to other jurists to discover that in the Severan age free men were thrown to the

For no one ought to castrate a free man or a slave whether unwilling or willing, nor ought anyone to offer himself voluntarily for castration. And if anyone acts against my edict, it will mean a capital penalty for the doctor who performs the operation, and the same for him who has offered himself voluntarily to be operated on.*

1   A S.C. of A.D. 97 (for the date see R. Syme, Tacitus, App. io and 68) dealt with at least one aspect of the punishment of castration (Dig. 48. 8. 6), and no doubt other aspects too, about which nothing is known. See also Dio 68. 2. 4; cf. 67. 2. 3 and Suet. Dom. 7. 1. Despite Smallwood (Latomus 18 (1959), 334 ff.; 20 (1961), 92 ff.), it was not Hadrian who first assimilated castration to homicide.

2   Dig. 48. 8. 3. 5: *legis Comeliae de sicariis et veneficiis poena insulae de­portatio est et omnium bonorum ademptio.’

3   Dig. 48. 10. 1. 13. It has never been suggested that variation of penalty applied throughout the Severan system with the sole exception of the punish* ment of falsum. See next note.

beasts for one kind of falsum, and that decurions generally received milder penalties than plebeians for falsum.¹ Marcianus serves us better in his discussion of that Cornelian law with which we are at present concerned; the statement that the penalty of the law is deportation and confiscation is followed by the addendum: ‘sed solent hodie capite puniri, nisi honestiore loco positi fuerint, ut poenam legis sustineant: humiliores enim solent vel bestiis subici, altiores vero deportantur in insulam?² The omission of this com­ment might have left the situation somewhat confused.³

Could a jurist of the early second century have written a sed solent hodie clause ? A rescript of Pius on the murder of an adulterer reads as follows:

ei, qui uxorem suam in adulterio deprehensam occidisse se non negat, ultimum supplicium remitti potest, cum sit difficillimum iustum dolorem temperare et quia plus fecerit, quam quia vindicare se non debuerit, puniendus sit. sufficiet igitur, si humilis loci sit, in opus perpetuum eum tradi, si qui honestior, in insulam relegari.⁴

Pius, then, prescribed discriminatory penalties for this kind of homicide, and presumably would have done so for any other form of homicide on which a ruling was required. Hadrian too issued a constitution on homicide which clearly envisaged different punishments for decurions and men of lower status: the former escaped the death penalty (and received the poena legis Corneliae), and by implication the latter succumbed to it.⁵ Thus the contrast

¹ Dig. 48. 10. 8 (Ulp.; beasts); ibid. 13. 1 (Pap.; decurions/plebeians).

² Dig. 48. 8. 3. 5: ‘Buttoday they are customarily executed... ’

³ Marcianus wrote (ibid.): ‘The penalty of the Cornelian law... is deporta­

tion with loss of all property’, and just before this: ‘He who castrates a man out of lust or for gain is punished by the penalty of the Cornelian law, according to the S.C.' It was not uncommon for jurists to make reference to the ‘penalty of the law’ without either saying what it was or adding in parenthesis that it applied only to honestiores. Under the heading of falsum alone see Dig. 48. 10. 1 praef.; ibid. 1. 2; 2; 9. 3; 21; 27. 1; 32 praef.     *

⁴  Dig. 48. 5. 39. 8 (Pap.): ‘He who does not deny that he has killed his wife

caught in adultery may be excused from the ultimate punishment, since it is very difficult for him to restrain his just anguish; and he should be punished because he has done more [sc. than he should have], rather than because he was not entitled to avenge himself.’ Marcianus (48. 8. 1.5) refers back to the rescript, but names different penalties. He has also substituted synonymous expressions for humilis loci and honestior. His version is only a paraphrase, while Papinian professes to quote the original.          ⁵ Dig. 48. 19. 15.

HADRIAN: EVOLUTION OF THE SYSTEM 161 implicit in the sed solent hodie clause of Marcianus was not between his day and the reigns of Hadrian and Pius.

Hence it is conceivable that, before Hadrian’s edict the con­ventional division of slave and free was not the only division con­sidered by judges in the punishment of castration.

What of Hadrian’s own recommendations? At first sight they show no awareness of a status differential in relation to the full scale of penalties. However, in naming one penalty, death, Ha­drian did not rule out discrimination between social groups in the punishment of this crime. There were different grades of the death penalty which judges were free to apply in accordance with the status of the accused, and Hadrian could not but have been aware of this.¹

The only problem is to decide which social distinctions Hadrian expected his judges to observe. Here we can choose one of two alternatives: Hadrian had in mind either the punishment of all free men with a comparatively mild form of execution (capite pu- niri, decapitation), and that of slaves with an aggravated form of execution (summum supplicium, in one of its forms); or the punish­ment of members of high-status groups with the former penalty, and of all others with the latter penalty? In the latter case, it would be possible to compare castration with parricide, for which there was no escape from the death penalty. If the edict itself is neutral between the two positions, the latter position seems preferable be­cause of the supporting evidence.

Neither the rescript on rustling nor the edict on castration throw any doubt on the proposition that the use of the dual­penalty scale for discrimination according to status was known in the reign of Hadrian.^{[156] size=2 color=black face="Times New Roman">[157] [158]} At the most, they cause one to hesitate before adopting the stronger thesis, that the dual scale was already applied universally, in the punishment of every crime.¹ However, it would be premature to commit oneself to any view before in­vestigating the post-Hadrianic period for innovations in the penal system.

Post-Hadrianic innovation

The contribution of Pius to the development of the system may be considered first. We may begin with two constitutions, one on the murder of an adulterer (quoted above), and one on theft from Imperial mines, both of which might be thought to be innovatory.

The rescript on the murder of an adulterer cannot be said to have in itself established the principle that criminals of high status should be punished differently. There was ample precedent in the practice of courts for over a century. Further, the opposition between exile and one of the custodia penalties was anticipated by Hadrian’s decision on boundaries. Nor was Pius the first to prescribe different penalties in punishing homicide, as another constitution of Hadrian (on decurions) shows. In so far as there was innovation, it lay simply in the fixing of lighter penalties for one particular crime which fell under the Cornelian law on homi­cide. The reform was in a sense made necessary, and was certainly influenced, by actions of Pius’ predecessor. Hadrian had dealt with a subject close to Pius’, and with great leniency:

item divus Hadrianus rescripsit eum, qui stuprum sibi vel suis per vim inferentem occidit, dimittendum.²

In general, by injecting into Roman law a concern for the -mens facientis, Hadrian had made the law as a whole more flexible, but the state of the law on particular points uncertain. Hadrian had ruled that murder in revenge for stuprum was not to be punished as ordinary murder, but had made no specific statement on murder in revenge for adultery. Pius was perhaps asked to fill the gap, and did so, offering his own idea of leniency in the process.

The edict on thefts of gold and silver from Imperial mines is novel in a similar, restricted sense:

¹ See p. 164 n. 1 below.

³               Dig. 48. 8. 1. 4: ‘Likewise Divine Hadrian wrote that the murderer of the man who violated him or his own should be discharged?

Si quis ex metallis Caesarianis aurum argentumve furatus fuerit, ex edicto divi Pii exilio vel metallo, prout dignitas personae, punitur.’ Presumably the penalty of exile was for men of standing, and low-status criminals were to be sent to the mines. Pius was perhaps extending a recognized system of penalties to a particular offence which had not been touched by the original lex lulia peculatus (probably Augustan). Imperial mines were not unknown in the reign of Augustus. But they were rare, did not bear the common title metalla Caesariana, and were not an element in the pattern of punishment.² Alternatively, Pius might have been raising the penalties, either because the offence had become particularly troublesome, or because he considered it particularly serious.

Over one matter it may be possible to make a direct comparison between the attitudes of Hadrian and Pius. An edict of Hadrian and a rescript of Pius deal with the plundering of wrecks and ruins. The substance of Hadrian’s ruling was that anyone found guilty of the crime would be treated as a bandit (latrd) and given a heavy penalty (gravis sententia), the content of which was not revealed. Pius was asked specifically about penalties, perhaps because Hadrian had left them vague. The judge’s first concern, he wrote, was to establish whether the offender was simply col­lecting ‘perishables’ (peritura) or maliciously seizing preservable property. He went on:

ideoque si gravior praeda vi adpetita videbitur, liberos quidem fustibus caesos in triennium relegabis aut, si sordidiores erunt, in opus publicum eiusdem temporis dabis: servos flagellis caesos in metallum damnabis.³

It would be rash to assume that Hadrian envisaged for this crime one penalty for all conditions of men. His edict stated neither that there were differential penalties nor that there were

¹               lang=EN-US style='font-style: italic'>Dig. 48. 13. 8. 1: ‘Whoever steals gold or silver from the Caesarian mines is punished with exile or the mines, depending on his dignity, according to an edict of Divine Pius.’ Cf. 48. 19. 38 praef.

² F. Millar, JRS 53 (1963), 30, on Augustus and the Cyprian copper mines«

³               Dig. 47. 9. *7 (Hadr.); ibid. 4.1 (Pius): ‘Thus, if it appears that comparatively valuable booty has been sought with violence, you will relegate free men for three years after beating them with rods, or, if they are of meaner origin, you will put them to public labour for the same term; slaves you will condemn to be whipped and sent to the mines? not.¹ He simply gave an assurance that the crime would be punished with severity. Pius’ rescript is full of difficulties. Rele- gatio and opus are opposed, and this division is evidently correlated with a division in society. But with which division ? Prima facie, with the division between free men, free men who were sordidiores, and slaves. The first group were ‘relegated’, the second sentenced to opus. But the former were beaten before going into exile, and this lessens the likelihood that they were, or included, honestiores. Honestiores were not beaten, at least from Hadrianic times.^{[159] [160]} Perhaps the truth is that Pius envisaged for the offence of plunder­ing shipwrecks penalties graded in a way slightly different from that which was customary. It seems that Hadrian did not consider the possibility that decurions might try their hand at rustling. Similarly, Pius might have thought that honestiores did not loot shipwrecks.^[161]

Finally, when Pius gave attention in a constitution to a sanction or penalty, it was usually to analyse and explain rather than to modify.^[162] Torture and metallum are two possible exceptions. Pius introduced reforms in the use of torture. However, they were minor, and his motives were humanitarian rather than political.^[163] For example, he ruled that children under fourteen should not be subjected to torture, except in treason cases.^[164] In matters of more moment, Pius did not move from the position of his predecessors.

165 As for metallum, it has been claimed, on the basis of a passage of Marcianus, that Pius significantly changed the condition of those condemned to the mines by creating, or recognizing officially, the ‘new juridical condition’ of ‘slave of the penalty’ (servus poenae). Pius appears to have denied the Imperial treasury, the Fiscus, right of ownership over any legacies left to men con­demned to the Imperial mines.¹ This measure is hard to evaluate. It is uncertain whether there was any originality in his gesture, or even whether the gesture was truly magnanimous.² But the central point is that Pius did not change in the slightest the legal condition of the man condemned to the mines. It is not even certain that he invented the name servus poenae.³

lang=EN-US style='font-size:11.0pt;line-height: 115%'>In sum, Pius’ legislative programme was not that of a great in­novator.

A large number of constitutions are attributed in the sources to Marcus and Verus, Marcus, and Marcus and Commodus.⁴ Few of them contain anything relevant to the issue of penalty

¹       See Brasiello, op. cit. 378, arguing from Dig. 34. 8. 3 praef., cf. 49. 14. 12. Other refs, to servuspoenae: 28. 3. 6. 6-7; 29. 1. 13. 2; 29. 2. 25. 3; 40. 1. 8 praef.; 40. 5. 24.6; 48.19. 8. 8 and 12; ibid. 17 praef.; PS3. 6. 29. See Brasiello, op. cit. 416 ff.

² Originality: the Biographer claims that Hadrian attempted to close the Fiscus to confiscated property (SHA Hadr. 7. 7; but cf. Dig. 48. 8. 4. 2; perhaps also 48. 20. 7. 3). The ruling, if not fictional, was not put into effect. All the juristic evidence shows that confiscated property went into the Fiscus. See F. Millar, art. cit. 37 n. 123; P. A. Brunt, JRS 56 (1966), 81-2.

Magnanimity: bona caduca (property lacking an heir) traditionally went to joint legatees with children, and to heirs with children (Ulp. reg. 17. 2; cf. 18. See Millar, art. cit. 34-6; Brunt, art. cit. 79-81). Otherwise, it went into the Aerarium, although already in the first century there were signs of encroach­ment from the Fiscus. If indeed beneficiaries with prior claim had been bypassed (sc. by procurators) and bona caduca had been deposited in the Fiscus, and if Pius was trying to stop this, then his action was both necessary and mag­nanimous. If, on the other hand, Pius was simply waiving the claims of the Fiscus as opposed to the Aerarium if there were no other beneficiaries, then his action possessed the degree of generosity of the measure ascribed to Hadrian (above).

³Some minor legislation shows that Pius was attentive to the lot of servi poenae. Condemnation to the mines was for life; but in special circumstances the condemned man might be released, provided he had kinsmen and had served at least ten years of his sentence (Dig. 48. 19. 22). Of course the Emperor could grant a reprieve through restitutio (ibid. 8. 12).

⁴               They include Dig. 48. 22. 6. 2 (which draws on implications of 48. 19. 15); Coll. 4. 3. 6 (cf. Dig. 48. 5. 39. 8; 48. 8. 1. 5); Dig. 23. 1. 16 and 23. 2. 16 praef. (cf. ibid. 44 praef.). Other passages include 2. 14. 8; 60; 47. 18. 1 praef.; 2.

and status, and those that do, with one exception, basically repeat previous enactments. The exception is the edict of Marcus concerning the privileged status of the descendants of leading equestrian officials to the third generation.¹ Marcus was perhaps clarifying the position of a small group on the fringe of the privi­leged élite which was uncertain or which had been challenged. In Roman eyes status was inherited, and it was natural to believe that children benefited from any parental privileges awarded be­cause of status. The situation of more remote agnate descendants was less clear; nor in the present case could they be assumed to belong ipso facto to any definite social class or status group. After the edict there could no longer be any doubt about their eligibility for privileged treatment in the law courts.

The relevant constitutions of the Severan Emperors may be divided into two groups. Three rescripts banned the use of certain penalties against children of veterans and decurions.² Two others directly concerned decurions.³

It is scarcely conceivable that any of the three rescripts in the first group conferred privileges which were not previously pos­sessed. Thus, for example, it might be true that no Emperor before Caracalla stated that the children of veterans were exempt from ‘plebeian’ penalties, but this is without significance, given the Roman understanding that children inherited privileges de­rived from status.⁴ Both rescripts in the second group show by their wording their lack of novelty.⁵ Severus and Caracalla cited the rule {prohibitum est) that decurions were not to be beaten, while Caracalla stated that decurions patently {manifestum est) should not be sentenced to opus. Moreover, the rough contexts of the rescripts can be reconstructed with some plausibility, and the result is relevant. Severus and Caracalla were replying to one Ambrosius, apparently a decurion or the son of a decurion, who had presumably protested against a beating received at the hands

’ 07 9· 41. 11 praef.                        * 079· 47· 5! 9» 12; and see next note.

³       CJ 2. 11. 5 (also on sons of decurions); 9. 47. 3.

♦0/9.47.5.

³       07 2. 11. 5: ‘decuriones quidem, item filios decurionum fustibus castigari prohibitum est’; 9. 47. 3: ‘decurionem in opus publicum dari non oportere manifestum est.’

167 of the proconsul. Similarly, the Geminius to whom Caracalla wrote was probably a decurion sentenced to forced labour. These rescripts, in company with the other Imperial legislation of the post-Hadrianic period, were designed less to establish a system of privilege than to preserve one which existed already.^[CLXV]

Hadrianic innovation

It remains to estimate Hadrian’s own contribution to the de­velopment of the penal system, and to assess the degree to which he was an innovator. The matter turns on the interpretation of four constitutions. All of them have been introduced already into the discussion. They are the edict on exile and the rescript on the custodia penalties (Dig. 48. 19. 28. 13-14), the rescript on boun­daries (Dig. 47. 21. 2), and the decree on decurions (Dig. 48. 19. 15). The first two, as has been said, indicate only that Hadrian was familiar with the penalties used later by the Severans, and that he classified them into two groups according to type. In the light of the rescript on boundaries this division of penalties takes on a new meaning. But how epoch-making was that rescript ?

The pre-Hadrianic evidence shows that courts and judges which investigated crimes extra ordinem were always able to vary penal­ties, and that in Imperial times a greater number of penalties were at hand from which a choice could be made. As for the way in which the penalties were applied, the lower ranks of the free population, including citizens of low status, were sometimes, at least, awarded penalties from the custodia group. Moreover, it was considered highly irregular for senators or equestrians to suffer one of these penalties rather than deportation (for capital crimes, the poena legis, if there was a relevant lex) or a milder penalty of the same type. Hence Hadrian’s rescript on boundaries is not

likely to have been the first judgement which split into two the category of the free, and set two penalties of different kinds—one mild, the other degrading. The novelty of the rescript lies in the setting of those particular penalties (exile, public labour) for that particular crime (the moving of boundary stones). The penalties still held good in Severan times.

The rescript on boundaries might have been the first of its type in another way. It has been suggested, largely on the basis of a passage in the vita Macrini, that Hadrian’s rescripts were the first ‘true’ rescripts.¹ In the course of a sweeping attack on Imperial rescripts, Macrinus is said to have adduced in support of his arguments Trajan’s alleged refusal to reply to libelli, peti­tions. Macrinus confused the issue, perhaps deliberately (fuit in iure non incallidus), by failing to distinguish between replies to the consultations of officials and replies to the petitions (libelli) of private individuals. Both were technically rescripta. Trajan’s dissatisfaction must have been with the latter, not with the former, of which several examples survive.² The bulk of Hadrian’s legislation was contained in rescripts to officials or in general edicts. His rescripts did not differ from Trajan’s rescripts in kind.³

¹               A. d’Ors, op. cit. 152: ‘des resents proprement dits’. See also J. Gaudement, ‘L’Empereur, Interprfcte du Droit’, Festschr. für E, Rabel (1954), ii. 169 ff. See SHA Macr. 13. The passage is suspect. See pp. 174 ff.

²               lang=EN-US>Trajanic rescripts of the former type include, perhaps, Dig. 27. 1. 17. 6; 36. 1. 31. 5; 48. 17. 5. 2, and almost certainly 29. 1. 24; 48. 18. 1. 11-12 and 19; 48. 19. 5 praef.; 48. 22. 1; 49. 16. 4 praef. and 5. Some of his replies to Pliny as governor of Bithynia surely fit into this category. (For that matter, Trajan did read the libelli from privati sent on by Pliny, although these were not requesting legal rulings as such.) Other enactments of Trajan go under different names in the sources. The distinctions between the different types of constitu­tions are somewhat imprecise and I suspect in some cases illusory—see p. 174 n. 3. See Dig. 48.13. 5.4; Gai. Inst. 3. 72 (‘constitutions’); Dig. 34.9. 5. 20; 49. 14. 13 praef.; CJ 7. 6. 1. 12a; IJ 3. 7. 4 (‘edicts’); Dig. 47. 14. 3. 3 (epistula); Dig. 48. 16. 10. 2 (interpretation; CJ 5. 75. 5 (S.C. auctore divo Traiano); Dig. 29. 1. 1 praef. (a ruling, perhaps a constitutio—see ibid. 2—which was converted into mandata). For constitutions of pre-Trajanic Emperors see above, p. 8 n. 4.

³               Even allowing for the bias of the Digest towards second- and third-century Emperors, it is likely that the volume of rescripts increased under Hadrian. This was a product of administrative reform and the greater prominence achieved by jurists (see Schiller, art. cit.). There are few examples of libelli sent by private persons to Hadrian and answered. See, for example, Dig. 42. 1.33 (but this led to a rescript to the governor); 48. 20. 7. 3 (cf. Dio 69. 23. 2; also 56. 10).

Hadrian neither created the system of dual penalties nor in­vented a medium, the rescript, by which status distinctions were brought into the law. Did he, by his ruling on execution, broaden the privileged group so that it included decurions ?

In the first place, the ruling does not look like a general edict which deliberately raised the status of decurions. Its application was limited—it contained no general statement about the in­applicability of the death penalty, and thus cannot be represented, for example, as one of a series of edicts exempting decurions from specific penalties. Rather, it concerned only the crime of murder, and prohibited the death penalty in murder cases alone. (This is all that is explicitly stated. It can be legitimately inferred that execution for other ordinary capital crimes was regarded as irregular, that capital exile was the highest penalty for such crimes, that decurions should be beyond the reach of all custodia penal­ties.) Again, there is no indication that the ruling announced or constituted a departure from previous policy. The Roman ad­ministration had always distinguished carefully between the local aristocracy and the mass of the people in the cities. Granted the wealth, social status, and political usefulness of the former, it was inevitable that the Roman citizenship, the judicial decuries, the equestrian order, and the Senate should have become acces­sible to them, and that the distinctions won by individuals within their ranks should have added to the prestige of the group as a whole. The actions and attitudes of courts had long reflected a respect for social prestige. Hence it was expected of judges that they would discriminate in favour of provincials of high status.^[CLXVI] This brings us to consider the immediate context of the ruling. Hadrian’s travels enabled him to see at first hand how the Empire was administered and the law enforced. He was notoriously interfering²—but no Emperor was more accessible to people with just complaints. As the Biographers reported, Hadrian did not hesitate to correct abuses when he found them. Amongst those called to account were governors,³ and one of their misdeeds {facta), I would suggest, was to exceed the penalty of the law in

²          Dio 69. 5. I (to iroXuSrpay/xop).

their punishment of decurions for capital offences. In so doing they were in effect denying that any distinction existed between decurions and the rest of the free population of the provinces. This clashed with the views of Roman aristocrats of the late first and early second centuries.

The upshot is that Hadrian did not so much raise decurions to a new status as confirm them in an old one, at a time when penalties were becoming harsher and the newer penalties more widely used, and when governors were no less inclined to arbitrary actions than their predecessors had been. On another level the decree is an indication that decurions had achieved Imperial recognition as a group worthy of protection.¹

It seems that the penal system was no more transformed by self-conscious legislative acts in Hadrian’s reign than in the suc­ceeding period. Over-extravagant claims have been made about the background and purpose of rescripts of Emperors such as Hadrian, Pius, and Severus, and their true significance has been missed. The Hadrianic rescript on boundaries, for example, is principally important as an illustration of the advance which the criminal cognitio procedure was making at the expense of the formulary procedure of the civil law. Two laws, one of Julius Caesar (or of the Emperor Gaius), and one of Nerva, had dealt with the moving of boundary stones. But they had envisaged an action by which a plaintiff sued for a private penalty, a fine.^{[167] [168]} That is to say, the offence was still thought of as a delict for which compensation was sought in a private action. Perhaps for the first time under Hadrian the same offence was treated as a crime and

171 punished by the state extra ordinem. There is other evidence that cognitio was being used more widely about this time,¹ and one effect of the wider use of cognitio, as the rescript on boundaries bears witness, was that judges were given more frequent opportu­nity to discriminate in favour of rank.

Conclusion: From Augustus to the Sever ans

So far it has been suggested that the dual-penalty scale was not the creation of any second- or third-century Emperor or Emperors, but that it had already attained a considerable degree of maturity, if not full maturity, by the Hadrianic age. By this interpretation the crucial developments in the evolution of the penal system took place in the first century a.d. Unfortunately the inadequacy of the sources makes possible only a limited under­standing of this formative period. What follows is necessarily only a sketchy outline of a complicated process.

Variation of penalty was practised from the time when the cognitio procedure was introduced. In the early stages dis­crimination was a matter of the selection of penalties of greater or lesser harshness for low-status or high-status criminals from a limited list of penalties including the payment of a fine, loss of status, various grades of exile, and execution. The next stage com­menced perhaps in the reign of Tiberius. Severer sanctions, in origin mostly slave penalties, became available alongside the older conventional ones, and were increasingly employed against defendants of lower status. The use of these penalties was a precondition of the development of the mature penal system familiar to the classical lawyers. Judges chose penalties according to type as well as according to gravity. In the first century in­dividual Emperors and governors in moments of excess applied degrading penalties to members of the higher orders. Early writers record with indignation or disapproval these isolated events, which showed a blatant disregard for judicial precedent. However, such periodic challenges did not break the immunity from ‘servile’

* See Dig. 47. 9. i praef.; cf. ibid. 4 and 7 (naufragium, etc.); perhaps also Coll. 11. 6-8; cf. Dig. 4.7. 14. 1-2 (rustling was once treated as theft, but serious cases at any rate were punished extra ordinem by Hadrian’s time). The urban prefect began to take causae pecuniariae in Hadrian’s reign, Dig. 1. 12. 2.

and ‘plebeian’ penalties which the higher-status groups had gradually built up injudicial practice: they may even have helped to consolidate it. During the latter part of the century, aristocratic immunity gained both in value and in prominence, as the cognitio procedure (and therefore the variation of penalties) increased its hold on the criminal law and began to make inroads into the civil law.

The evidence for the second century enables us to follow the advance of cognitio in both the criminal and civil spheres, and also to see that the de facto privileges of status groups continued to be challenged, albeit sporadically. Now for the first time, thanks to the legal sources, the response of the highest authorities to such challenges is visible. Imperial constitutions, of which the first on record was Hadrian’s on decurions, show the anxiety of Emperors to protect the higher orders. In addition, jurists warned governors in their treatises that they were expected to uphold and administer a status differential in the field of penalties.

More needs to be said on the subject of the Imperial con­stitutions (and the juristic statements) and their relation to the system of privilege. The above account, stressing that the dual­penalty system evolved by a continuous and natural process, which was unmarked by ‘establishing legislation’ at any stage, rejects by implication certain interpretations of the purpose of the constitutions, for example, the idea that they were intended to put the system on a new footing in law. This theory may now be discussed, together with the proposition that the constitutions did change the legal basis of the system of privilege, whether or not that consequence was intended.