INTRODUCTION

Roman philosophers commenting on Plato’s theory of punish­ment pointed to a motive for punishment which was not mentioned in his work. In addition to being corrective or deterrent in purpose, punishment in the Roman view could justifiably be aimed at ‘the preservation of honour, when the dignity and prestige of the in­jured party must be protected, lest, if the offence is allowed to go by without punishment, he be brought into contempt and his honour be impaired’.¹

Aulus Gellius, our source for the Roman view of punishment, found the absence of this motive for punishment from Plato’s works, and specifically from the Gorgias, worthy of comment, but he did not remark on its inclusion in the writings of Roman philosophers.² That Roman theories of punishment were charac­terized by a respect for status (of which honour and prestige were attributes) would not have seemed at all remarkable to a represen­tative of the upper stratum of a society as hierarchical in structure as Roman society.

^x Gellius, Noct. Att. 7.14. 3; cf. 9. The word τιμωρία had been applied to this aim of punishment, in supposed derivation from τιμή (honor).

² In explaining the omission of punishment propter tuendam laesi hominis auctoritatem, Gellius suggests, first, that Plato passed it over as trivial and worthy of contempt, and second, that he disregarded it as irrelevant in the context (Plato was writing of punishment after death). He does not deny that Plato might have entertained the concept. Nor does he state or imply elsewhere in the chapter that no other Greek philosophers before the Roman period thought of τιμή as something which in itself needed the protection of the courts.

raised up above one another by their involvement in conventional social relationships (so a father was placed above a son, a patron above a freedman, and a master above a slave); by their involve­ment in the political relationship (the magistrate was placed above the private citizen); and by their respective positions in society.

The Roman respect for status is more clearly reflected in the actions and attitudes of judicial officials than in legal theory. This book is a study of discrimination based on status in the administration of the law.¹ It does not attempt to cover all aspects of inequality before the law in the Roman setting. Virtually nothing is said about the way in which economic institutions operated to the benefit of those with property, either with the aid of the law or because of the absence of substantive legal regula­tion. Emphasis is placed rather on the inequalities associated with legal procedures in both civil and criminal spheres.

^x I am principally concerned with the legal privilege which derives from inequalities of prestige (dignitas or honor), rather than that which is directly connected with inequalities of wealth (see below). The class/status distinc­tion is applied to’Stratification in terms of wealth and prestige respectively. It has therefore seemed proper to make use of the terminology of status rather than class in this book. In doing so, I am not committing myself to a particular standpoint on the question of whether, in the Roman case, status is reducible to economic phenomena. On class and status see Max Weber: Economy and Society (ed. G. Roth, C. Wittich, 1968), i. 302-7; ii. 928-36; S. Ossowski, Class Structure in the Social Consciousness (1963), 121-44; W. G. Runciman, in Social Stratification (ed. J. A. Jackson, 1968), 25 ff.

juries, and law-enforcement officers. Thus judges of criminal cases under the Empire as a regular policy applied severer penal­ties to defendants of low status than to defendants of high status.

The period with which I am principally concerned stretches from the age of Cicero to the age of the Severan Emperors: that is, from the mid first century B.c.

Republican Romans possessed a constitution in which, theor­etically, monarchical, aristocratic, and democratic elements were finely balanced. However, as Cicero acknowledged in his treatise De Legibus, this harmonious compromise was achieved and maintained through the submission of the people to the nobility.¹ On the democratic ideal of equality, Cicero’s position was plain: ‘equality is unequal when it does not recognize grades of dignity’.^{[1] [2]} Cicero did not enunciate any elaborate theory to support this view. He appealed, in true Roman fashion, to the mos maiorum, to traditional practice.

Cicero made no direct statement on the subject of juridical equality itself. At one point in the pro Milone, however, he reminded the jury that in Rome one set of courts existed for all criminal offenders, and that the laws which set up the courts had laid down penalties in advance for all crimes.^[3] It might be thought that under a system of this kind there was little opportunity for discrimination in favour of status groups, and Cicero might seem to have sanctioned such a state of affairs. Not much is known of the standard of justice administered by these courts, because of the quality of the evidence.

The coming of the Empire forced statesmen and theorists to revise their political attitudes. Many senators were unable to accept the diminished role of the Senate, and withdrew or were forcibly withdrawn from the political scene. Tacitus was speaking for a new breed of humbler senators when he praised the Emperor Nerva for reconciling two irreconcilables, principatus and lib er t as.¹

¹               Tac.

[Liberia! means libertas senatus, the freedom of the Senate to operate as part of the machinery of the state. It does not stand for the democratic ideal of equality.¹ A remark of Tacitus’ con­temporary Pliny shows that this was still alien to the Roman political temperament. Pliny objected on one occasion that the Senate, by deciding a matter according to the wishes of the majority instead of following the views of men of wisdom {prudentes), was behaving like a popular assembly: ‘But the majority wanted it so. For the votes were counted, not weighed. No other method can be followed in a public assembly. But nothing is so unequal as the equality associated with a public assembly, in which wisdom is not shared equally among all, but rights are.’^{[4] [5]} We shall see that Pliny rejected juridical equality, the equality of all citizens before the law, as easily as he rejected political equality.

With regard to the administration of the law, some features of the Republican system were not likely to survive the collapse of the oligarchy. A disguised monarchy which pursued the goals of stability, order, and efficiency would not tolerate the non-execution of judicial sentences by magistrates with the connivance of or by the instruction of the Senate, or defiance of the law on the part of powerful individuals (who, for example, refused to obey sum­mons, ignored praetorian interdicts, or blocked the execution of a sentence). The Emperors were also, intermittently at least, hos­tile to bribery and corruption. Republican procedures were not abolished, however, but were allowed to die out gradually. The Emperors introduced new tribunals and a new procedure, cogni­tio.^[6] This was parasitic on the jury-court system; it also proved more attractive, especially to weaker plaintiffs, than the formulary system in the civil law, administered by praetor and private judge. In time, cognitio was applicable in the trial of all offences, as the distinction between public crime and private delict slowly declined in importance.

Jury-court procedure was accusatorial. The praetor simply presided over the contest between accuser and accused and pronounced the verdict of the jury. The cognitio procedure, on the other hand, was inquisitorial, and gave immense power to the judge. He sought and questioned witnesses, and interrogated the accused. Before passing sentence he regularly consulted his advisers, but was not bound by their counsel. As for the sentence itself, as Ulpian wrote, ‘he may issue the sentence which pleases him, be it relatively severe or relatively mild, so long as he stays within the limits defined by reason’.^[7] The judge was able to vary the penalty according to the gravity of the crime and according to his own social prejudices. Further, because limits were pre­scribed by reason and not law, he was free to choose penalties not recognized by the law, penalties which in earlier times had been used almost entirely against free aliens and slaves, who stood outside the civil law. The consequence was the emergence of a dual-penalty system under the Empire, according to which, broadly speaking, the ‘legal’ penalties were applied to the higher orders, and the administrative sanctions (which were severer and more degrading) to the lower orders.

Cognitio, as the procedure most characteristic of the Empire, receives the lion’s share of attention in this study. With the intro­duction of courts which operated according to the cognitio pro­cedure, a number of tribunals were capable of handling most cases. In Part I, the hypothesis that the choice of court was of consequence for the defendant is investigated. It may be possible to establish that there were upper-level and lower-level tribunals in Rome, which dealt with disputes involving members of the higher orders and members of the lower orders, respectively. Part II explores the dual-penalty system, which originated, as already stated, in the flexibility of penalty which was a distinctive feature of the cognitio procedure. Because of the nature of the evidence, the material in these two sections is drawn in large part from the criminal law.

Part III is devoted to the formulary procedure of the civil law. It demonstrates the wide variety of ways in which the procedure itself, and the magistrates and judges who administered it, denied equal protection and equal rights to those who were regarded as socially undesirable or simply inferior. The section dealing with the private judge is not only relevant to the formulary system. It is concerned with the influences to which the judge was subjected in the course of the trial itself, as he listened to the pleas of the accused, the prosecutor, their advocates, and their witnesses. These pressures were felt equally by the private judge and the cognitio judge, and it is unnecessary to discuss them twice.

Legal procedures cannot be studied in isolation from the social environment which engendered them. In Part IV it is argued that the criteria for legal privilege were social and dependent upon status.

The relevant sources are both legal and non-legal. For the Antonine and Severan periods, we are dependent on the juris­tic writings assembled in the Digest of Justinian and other late compilations. The Digest was compiled by a commission appointed by the Emperor Justinian in a.d. 530. The editors* aim was not to transmit faithfully select portions of the works of the classical lawyers. On the contrary, their declared intention was to bring simplicity and intelligibility to a vast collection of material which, because of its size, lack of symmetry, and many inconsistencies, posed problems for the practising lawyers of the day. It took almost exactly three years to put together this massive work. Considering the conception and scope of the work and the way it was assembled, it would clearly be unreasonable for us to reject out-of-hand the hypothesis that the Digest as we have it is full of emendations, interpolations, and errors. (There is, moreover, no assurance that the original texts reached the compilers without undergoing alteration.) However, the search for additions and corruptions which dominated Roman legal studies in the late nineteenth and early twentieth centuries was taken to extremes. (In reaction, some modern scholars have based assertions about the attitudes and careers of jurists entirely on stylistic usage.¹) The contemporary student of Roman history or Roman law has been forced by the interpolation hunters to be cautious and critical in his investiga­tions and reconstructions.² At the same time, he should recognize that the compilers were unsuccessful if they sought to purge anachronisms and expunge historical details which for lawyers of the sixth century could only have had curiosity-value. For ex­ample, many administrative terms which occur in the Digest, and many names of officials and institutions, are familiar from other sources for the second and third centuries.³ This must pro­vide encouragement to anyone seeking to discover the drift of Ulpian’s or Paulus’ thought. It may be that even the ipsissima •verba of a jurist are not beyond recovery, although this is inevi­tably a matter of dispute. Each case should be settled on its merits.

The Digest contains few items of importance from the pre- Hadrianic period, and the earliest entry in the Code (of Justinian) is Hadrianic.⁴ We must turn to historical and biographical (non- legal) sources for information about the first century of the Empire. The interests of the non-legal and the legal sources differed markedly. While the non-legal sources (those from which we derive any help on the relevant questions) were mainly centred on Rome, the concerns of the Antonine and Severan jurists were Empire-wide. For example, the sections in the Digest that relate

¹ See A. M. Honoré, Gaius (1962), introd, xiiiff.; ‘The Severan Lawyers: A Preliminary Survey*, Studia et documenta historiae et iuris 28 (1962), 162 ff. For a moderate view, W. W. Buckland, Harvard Law Review 54 (1941), 1273 ff·

* Errors and inconsistencies are to be expected. See, e.g.,Zhg. 1. 6. 2 (end), with Coll. 3. 3. 4; Dig. $. 1. 37 (Hadrian), with 48. 6. 5. 1 (Pius); 48. 8. 1. 5, with 48. 5. 39. 8; 47. 21. 2, with Coll. 13. 3. 2; etc.

³               e.g. princeps, proconsul, procurator, curator, aedilis, praetor, aerarium, fiscus, iudicium publicum, poena legis, interdictio aqua et igni, concilium (sc. provinciae), imperium, eques Romanus, ius Italicum, etc.

⁴               CJ 6. 23. 1. But see 9. 21. 1 (Visellian law, Tib.); 9. 23. 3 (Claud.); 8. 10. 2 (Vesp.). There are one or two early items in the Collatio (late fourth century), e.g. 15. 2. 1 (citing a S.C. of a.d. 17). Early Imperial pronouncements in the Digest include: 14. 2. 9; 16. 1. 2 praef.; 23. 2. 14. 4; 28. 2. 26; 48. 18. 1 praef.; ibid. 8 praef. (all Aug.); 48. 5. 39. 10 (Tib.); 4. 4. 3. 4; 16.1. 2. praef.; 37. 14. 5; 40. 8. 2; 48. 10. 14. 2; ibid. 15 praef. (all Claud.); 37. 14. 7 praef.; 50. 4. 18. 30 (Vesp.);48. 3. 2.1; 48. 16. 16 (Dom.). See G. Hanel, Corpus legumab imperatori· bus Romanis ante lustinianum latarum (1857). to criminal jurisdiction deal largely with the administration of justice outside Rome, and especially in the provinces. Thus the decurion, or the local councillor of an Italian or provincial city, is taken as the type of the man of honour and dignity who was favoured in the law courts. It is not surprising that senators and equestrians, who were presumably similarly favoured, are hardly mentioned. In contrast, most of the legal activity recorded by Tacitus and other historians took place in Rome. As a result, it is these sources which provide the best evidence for the privileged position of senators and equestrians. (Their testimony is con­firmed by stray references from later literary works of history or biography which share the orientation of the first-century sources but do not match their quality.) This evidence should, moreover, equip us for interpreting some of the key legal texts. To give an illustration, instances of variation of penalty in accor­dance with status, which occur in a few legal texts from the reigns of Hadrian and Pius, do not appear novel when set beside in­stances cited by Tacitus or Pliny of lenient treatment of senatorial and equestrian defendants in comparison with that of defendants of low rank. In general, most obstacles to a correct understanding of the way in which legal privilege developed during our period (and especially in the central part of it) are removed if the contrast between the emphases and approaches of the two groups of sources is kept in mind. Thus, for instance, the awareness that the interests of the first-century sources were focused on Rome should reduce any inclination we might have to believe that Hadrian’s prohibition of the execution of decurions for murder transformed the decurions into a privileged order. (Such a view would not in any case survive an examination of the immediate context of the ruling and an exploration of the social background.)

One final remark should be made on the subject of the legal sources, and this also relates to the question of the evolution of certain types of legal discrimination. If legal discrimination was thoroughgoing, and the evidence suggests that it was, it is odd that there was no concentrated treatment of the subject by any classical jurist, and that no section of either Digest or Code was devoted to it. The details have to be gathered piecemeal from the writings of the jurists. It is certain that there are many omissions. How is the anomaly to be explained ? The answer lies in the informal nature of a system which was grounded not in legislative enactment, but in administrative rules, customary practices, and ultimately the social attitudes of the ruling elite.