PRIVILEGED GROUPS

From the preceding discussion, it can be seen that the jurists, with the assistance of the rhetoricians and others, have left us an adequate account of the criteria required for legal privilege.

However, the criteria were not presented in any coherent way. In particular, they were not included in any definition of the honestiores. There is, in fact, no theoretical definition of the term honestiores in the Digest', nor can a practical definition, that is, a list of those who made up the honestiores, be found.

Not surprisingly, the consequence has been drawn from this that ‘the privileged class’ was vague and indefinable; lawyers gave no list of its membership because there could not be such a list; the two terms honestiores and humiliores were relative, subjective notions, and not names for juridical categories.^[220]

This analysis might seem to draw strength from PS 5. 4. 10 on iniuria atrox. In that passage the list of privileged persons ends with the phrase vel alias spectatae auctoritatis viro (‘or a man conspicuous in authority in some other way’). The choice of this phrase might mean that the author was unable to complete the list; he could go no further in his catalogue of the privileged than ‘senator, equestrian, decurion’. But it should be noted that the author did not include all those groups whose privileged status was not in doubt, for example, veterans. Moreover, a list of those for whom iniuria was automatically atrox is not equivalent to a list of those who made up the honestiores.

The point to stress is that there were publicly recognized or recognizable criteria on the basis of which those with privileges could be identified.

Senators¹

There is little in the legal texts to illustrate the obvious fact that senators were privileged before the law. Gaius and later the compiler of Paul’s Sentences both indicated that iniuria became atrox if suffered by a senator at the hands of a humilis persona.¹ Similarly, it is known that no plebeian could sue a consular for fraud, and this rule may well have applied to all senators and for ^{[221] [222]} some other charges in civil law.¹ Distr actio bonorum was a means by which senators, in particular, could satisfy their creditors with­out loss of status.² As for penalties suffered by senators, one clarissimusiuvenis, or the son of a senator, was deported by Severus and Caracalla for a crime punishable with death under the Julian law on peculation.³ Deportation was the penalty awarded to honestiore loco nati for such crimes.⁴

The deficiency of the legal sources is made up in some degree by the historical sources.

It was predictable that the political supremacy of the Senate in Republican times would be reflected in the administration of the law. But both then and later, under the Empire, the source of their legal privileges was no less their social position than their political prominence. The senatorial order was an exclusive group

¹ Dig. 4. 3. n. 1. The consular may have been taken simply as an example. See pp. 182 ff.

³     Dig. 27. 10. 5.                       ³ Dig. 48. 13. 12. 1.                        ⁴ Ibid. 7.

⁵    See p.

⁶ There is some evidence that senators could count on the revocation to Rome of legal disputes which had been launched by provincials against them. Seep. 195.

⁷     See pp. 34 if.

by Republican tradition. Augustus emphasized its social superiority by forbidding marriage between senators and freedwomen or women of low connection.¹ A similar rule applied in the case of women of senatorial rank and freedmen. The lex lulia of 18 B.c. also laid down that senators and agnatic descendants to the third generation and their wives were of senatorial rank.² Membership of the order was denoted by the adjective clarissimus(a), with vir, femina, iuvenis, puer, and puella. The title was first written in full, and later in abbreviated form, as one would expect with a regular formula. Abbreviations do not occur in the inscriptions until the Trajanic period—indeed clarissimus vir did not become an established title, excluding others, until about that time.³

Equestrians

¹               Dig. 23. 2.44 praef.-1. There was no change during the period of the classical lawyers. See ibid. 23 (Celsus); ibid. 58 (Pius/Marc.); ibid. 16 praef. (Marcus/ Paulus); ibid.

²               Dig. 23. 2. 44 praef.; cf. 50. 1. 22. 5 (but see Dig. 1. 9. 10); StR iii. 468-9. For the status of wives, Dig. 1.9. 8.

³               StR iii. 471; O. Hirschfeld, ‘Die Rangtitel der römischen Kaiserzeit,’ Sitzungsb. der Berl. Ak. (1901), 579-610 (= Kl. Sehr. 646-81); L. Friedländer, Darstellung aus der Sittengeschichte Roms (1910), 279, 403-5. Clarissimus vir was used as an official title as early as a.d. 56 (C x 1401). See also C x 7852 (a.d. 69). C(laris simus) p(uer)\s used of the great-grandson of Antonius Felix, L. Anneius Domitius Proculus (C V 34, early Trajan); c(larissimus) i(uvenis) of the jurist Aburnius Valens (C vi 1421, a.d. 118); cflarissimus) v(ir) of the legate Catullinus at Lambaesis (C vm 2532, a.d. 128). Cf. C VIII 98 (‘[projeos. c.v.’; Hadrian); 11451 = 270 (= FIRA² i, no. 47, p. 291) (‘Lucili Africani c.v.’; a.d. 138).

⁴               Tac.

Gallus spoke of senators and equestrians in the same breath. His opponent in a debate in the same year, Cnaeus Piso, stated the opinion that public business ought to go on, although the Em­peror had announced he would be absent, ‘so that the ability of the Senate and equestrians to carry out their proper duties in the absence of the Emperor should bring honour to the state’.² Our interest is less in this ‘show of liberty’ (species libertatis) than in the image of two sets of officials working side by side, each per­forming a part of the business of state. This concordia ordinum (harmony between the orders),³ envisaged in late Republican times, was largely an Augustan creation. Augustus looked to a refur­bished equestrian order to provide jurors, financial agents and tax collectors, army officers and provincial governors, senators natura, sed, ut locis ordinibus dignationibus antistent, ita iis quae ad requiem animi aut salubritatem corporum parentur...*

¹               Pliny, Ep. i. 14. 9: ‘cum publicos mores atque etiam leges civitatis intueor, quae vel in primis census hominum spectandos arbitrantur.. ?

²               Tac. Ann. 2. 35: ‘ut absente principe senatum et equites posse sua munia sustinere decorum rei publicae foret.’

³               On concordia ordinum see Nicolet, L'Ordre equestre d Vepoque republicaine (1966), 633 ff. In 253 ff., he argues for the existence and importance of social contacts and alliances between senators and equestrians in the late Republic. But he cannot deny the reality of the political conflict between the two orders at that time. On the use of the adjective honestus of equestrians see p. 239 n. 7 and Nicolet, op. cit. 235 ff. and magistrates. Moreover, the social conservatism which had placed a reconstructed senatorial order in a position of political, social, and moral leadership also attempted to establish the eques­trian order as a second aristocracy. Existing privileges and dis­tinctions were confirmed and extended; the membership of the or do was reviewed and scrutinized; social legislation designed to give the Senate a moral superiority over the lower orders was extended to cover equestrians.¹ Concordia or dinum was thus both a social and a political phenomenon. If the newer cursus honorum was able to attract men who might have chosen the older, tradi­tional one, if there could be a Mela and a Crispinus (described by Tacitus as ‘equestrians of senatorial dignity’), then the social gap between the two orders was certainly narrow.² The division of plebeians/senators, of which Gaius spoke in his commentary on the Twelve Tables, does not do justice to the enhanced standing of the ‘second order’.³ The closing of the gap is reflected in termino­logy. After the senatorial decree relating to scenic and gladiatorial performances and equestrians, Augustus exhibited no man who was honeste natum.⁴ Honesto loco ortum and nobilium familiarum posteros in similar contexts in Tacitus refer to equestrians, as well as to those of senatorial rank.® Among the multos honesti ordinis maltreated by Gaius were some equestrians.⁶ Finally, Vespasian was of equestrian stock—his mother was honesto genere ortaf

The comparative unity of the higher orders is also reflected in the sphere of trial and punishment. But before the evidence for the legal privileges of the equestrian order is summarized, an

¹ Equestrians filled gaps in magistracies: Dio 54. 26. 5; 54. 30. 2; 56. 27. 1; Suet. Div. Aug. 40. 1. Fortheir privileges see pp. 240 ff. Review and scrutiny: Suet. Div. Aug. 37; 38. 3; 39. Social legislation: Dio 48. 43. 3; etc. (senators); Suet. Div. Aug. 43. 3; Dio 56. 25. 7; cf. Dio 51. 22. 4; Tac. Ëèÿ. 2. 85. 1; Suet. Tib. 35 (equestrians). Other refs, to knights appearing on the stage, etc.: Dio 55. 10. 11; 55. 33. 4; 60. 7. 1.

* Tac. style='font-style:italic'>Ann. 16. 17. 1.

³               Dig. 50. 16. 238 praef. (‘senatoribus’ is bracketed by edd.). Contrast Res Gestae 35. 1: ‘sena[tus et e]quester ordo populusq[ue] Romanus universus*. See StR iii. 461 n. 3.

⁴Suet. Div. Aug. 43. 3.                              ³ Tac. Ann. 14. 21. 2; 14. 14. 5.

⁶Suet. Gaius 27. 4.

³ Suet. Div. Vesp. 1. 3. Honestus is used of equestrians in the late Republic. See Cic. ad fam. 13.14.1; 13. 31.1; 13. 62; pro lege Man. 17 (publicani); Caesar, b.c. 1. 51. 3; etc.

attempt should be made to specify what was meant by the eques­trian order.

Equester ordo originally denoted equites equo publico, eighteen hundred young men who were entitled to a ‘public horse’ and who voted in the eighteen centuries of equites equo publico in the cen- turiate assembly.¹ Equester ordo in this sense is still found in the early Principate, although the ordo by then had grown in number. The composition of the order in Imperial times is disputed. The basic point at issue is whether citizens of equestrian census (cives equestri censu), that is, citizens who possessed 400,000 HS but who had not been awarded the gold ring and other privileges, were recognized as members of the order. On one side, it is held that the distinction in the epigraphical sources between equestrians adlected into the turmae equitum (or those given the equus publicus) and other equestrians is only apparent, the latter being identical with the former. By this view, all who claim equestrian rank in inscriptions have received this rank by a specific grant of the Emperor or a subordinate in his name. Some may feel that this is to postulate a greater degree of control from the centre than is evidenced or plausible: it might be argued that, if a provincial with the required census and free birth dubbed himself an eques­trian, there would be no one to contest his claim on the grounds that he lacked all the qualifications laid down in the Tiberian legislation.²

Whatever the truth of the matter, those equestrians who resided at home were the wealthiest citizens of their cities, wealthier than the average decurion (although many decurions were equestrians). Other equestrians of provincial origin were not content with the social prestige which equestrian rank brought them in the pro­vinces, but took up careers in the Imperial service or in the army.

More is revealed about equestrian legal privilege in literary non-legal sources than in legal sources. First, some instances are known of a conspicuous lack of preferential treatment for equestrians. Marius Priscus, proconsul of Africa, for a fee had an

¹ Select bibliography: A. Stein, Der römische Ritterstand (1927); P. A. Brunt, JRS 51 (1961), 71 ff.; Μ. I. Henderson, JRS 53 (1963), 61 ff.; J. Gage, op. cit. 107-22; C. Nicolet, op. cit.; R. P. Duncan-Jones, PBSR 22 (1967), 147-88.

³ Pliny, n.h. 33. 32.

equestrian beaten, condemned to the mines, and strangled in prison (and another exiled, for a lower price); Gessius Floras, procurator of Judaea, flogged and crucified Jewish equestrians; the Emperor Gaius threw an equestrian to the beasts.¹ Such arbitrary actions taken against equestrians attracted attention because of their novelty. (They were breaches of convention and precedent rather than law, for no law exempted equestrians from the crueller punishments.)² Second, some evidence was found earlier for the trial of equestrian defendants before, first, the Senate, and second, the Emperor, and it was suggested that in both courts they were favoured above defendants of lower rank.³

The jurists often write of the influence of wealth in the adminis­tration of the law, but rarely mention equestrians as such. Iniuria against equestrians was judged atrox when committed by a mem­ber of the lower orders.⁴ An equestrian burglar (effractor) was banished from Rome, Italy, and Africa by the Emperor Marcus— a plebeian would have suffered any penalty up to opus publicum for the same offence.⁵ Finally, Marcus ruled that the descendants of eminentissimi viri and perfectissimi viri vrtrt not subject to ‘ple­beian’ penalties or tortures, as far as the third generation.⁶ (Strictly, the first title was borne only by praetorian prefects, the second by leading officials in the Imperial secretariat together with other prefects.)⁷

On the basis of Marcus’ edict,⁸ at least a superficial comparison

¹               Pliny, Ep. 2.11.8 (Priscus); Jos. BJ 2.308 (Florus); Suet. Gaius 2fj. 4 (Gaius); cf. Tib. 51 (equestrian condemned to treadmill).

²               Gaius’ victim proclaimed his innocence, not the illegality of the action; Florus did ‘what no one previously dared to do’.

³                                                                                                          See pp. 85 ff.                      ⁴ PS 5. 4. 10.             ⁵ Dig. 47. 18. 1. 2.

⁶               CJ 9. 41. 11 praef.

⁷               See indexes in H. G. Pflaum, Les Procurateurs equestres sous le Haut- Empire romain (1950), and Les Carrieresprocuratoriennes equestres sous le Haut- Empire romain (1960-1). Pflaum shows that from the reign of Septimius Severus the title eminentissimus vir was allowed to some prefects of the watch {praefecti vigilum), presumably because of the fact that praetorian prefects had been given increased status. The first man so honoured of whom there is record was Cn. Marcius Rustius Rufinus (a.d. 205-7), as a result of the award of consular ornamenta to Fulvius Plautianus before his adlection into the senate (Les Car­rieres, ii, no. 234, pp. 625 ff.).

⁸               The edict has been variously interpreted. Mommsen (Straf. 1033) thought, for example, that equestrian status became hereditary with its publication. Cf. Kubler, RE 6 (1909), 295, s.v. equites Romani. As Stein (op. cit. 78) pointed out, between the position of top equestrians and that of senators can be made. Rules respecting senators affected their agnate descen­dants to the third generation—legal benefits possessed by leading equestrian officials carried as far. Families of equestrians of lower rank, egregii viri¹ and equites Romani, were perhaps protected only to the first generation, as was the case with the families of decurions (below).

Decurians

Decurions may be briefly described as members of the local councils in the cities of the Empire.² In the legal sources decurions are contrasted with ‘plebeians’.³ Veterans are said to bear the same honor as decurions,⁴ honor which is the source of dignitas, auctoritas, and reverentia.³ Decurions were exiled rather than exe­cuted for capital crimes, and by Severan times no capital punish­ment could be inflicted on them without a previous inquiry by the Emperor.⁶ Crucifixion, exposure to wild beasts, work in the mines and other public labour, chastisement and torture, in short, all

Marcus was clearly not concerned in the edict with the whole equestrian order, but only with its upper stratum. Gagd (op. cit. 115) contrasted the senatorial order, where ‘le rang est devenu transmissible’, with the equestrian order, where *le brevet... demeure personnel’. Stein’s distinction (op. cit. 76) between ‘Geburts- adel’ and TersonaladeF is similar. But Stein admits (ibid. 75, cf. 175-89) that the whole equestrian order possessed ‘eine faktische Erblichkeit’. This is im­portant: the son of an equestrian was not ipso facto an equestrian, but neither was the son of a senator a senator. Both were in a good position to take over their fathers’ positions. It was of course difficult for the son of an e.v. to become an e.v., because there were very few e.v(iri). But he would have to lack all merit and initiative to fail to become an equestrian functionary of some kind. More­over, a man of his birth would be strongly placed to strike for the Senate. As to whether the son of an e.v. called himself e. i(uvenis) or e. p(uer), Hirschfeld (Kl. Schr. 654 and nn.) produces a few examples of these titles, but not enough to satisfy himself that they were in general use. Stein (op. cit. 76 ffi) dismisses even these, and others, not always with ease (see, e.g., the discussion on C in 14403a of a.d. 144, p. 80). It is still important that sons and daughters mention their exalted parentage, even if they do not take their father’s title as their own.

¹    See Duncan-Jones, art. cit. 185-6.

³ See RE 4 (1901), 2319 ff., s.v. decurio (Kiibler); DE z. z (1910), 1515 ff· (Mancini).                                               ³ Dig. 48. 19· 9· I4“i5; ibid. 10. 2; 50· 2. 2. 2.

* Dig. 49.18. 3.

⁵    e.g. Dig. 48. 10. 13 (dignitas); PS 5. 4. 10 (auctoritas); Dig. 48. 19. 28. 5.

⁶ Ibid. 15; 48. 22. 6. 2 (exile instead of execution); 28. 3. 6. 7; 48. 8. 16; 48. 19. 9. 11; ibid. 27. 1; 48. 21. 2. 1; 48. 22. 6. 1; 49· 4· 1 Praef. (Imperial inquiry).

‘plebeian’ penalties and tortures, were ruled out for themselves and their children.¹

An explanation of how decurions qualified for legal privileges should begin with an analysis of their social position. Members of the ordo were selected on the basis of their social background and financial situation. A dishonourable profession, or a criminal record, barred a man from the ordo of decurions.² In addition, free birth was a requirement, at least from the reign of Tiberius? Some freedmen managed to gain admission, perhaps because they were particularly wealthy or particularly generous, but normally freedmen could win only the special benefits which decurions enjoyed, without securing full membership of the ordo.⁴ (The political ambitions of their sons were not similarly frustrated.⁵) There was a census requirement for membership in Sicily in the late Republic, but otherwise no trace of one survives in the sources before the reign of Trajan, when Pliny recorded a qualification of 100,000 HS at Comum.⁶ (This sum was a quarter of the quali­fication for an equestrian, and less than a tenth of that for a sena­tor.)⁷ The same amount may have been required elsewhere, but good evidence for this is lacking.⁸

Other local rules and customs ensured that all local politicians were men of means? Candidates for some offices (later, for all

*       Crux: Dig. 48. 19. 9. 11 (Jurca). Vivus exuri: ibid. Bestiae: CJ 9. 47. 12; Dig. 49. 18. 3. Metallum: CJ9. 47. 9; Dig. 48.19. 9.11; ibid. 28. 5; Dig. 49. 18. 3; So- 2. 2. 2. Opus publicum: CJ 9. 47. 3; Dig. 49. 18. 3. Fustibus caedi: CJ2. 11. SJ Dig. 48. 19. 28. 5; 49. 18. 3; 50. 2. 2. 2. Plebeian penalties and torture: G7 9.41.11.1. Many of the texts are specifically about the children of decurions.

¹                                                                                                                                                                                                                                         lang=EN-US style='font-style:italic'>tab. Herat., 110 ff., 118 ff.; Fronto, ad am. 2.7.12 (ed. van den Hout, p. 183); Dig. 47. 10. 40; 50. 2. 6. 3; ibid. 12.        3 qy Ji. _t.

*       For a freedman decurion see AE 1966, 75. Other examples are less sure.

⁵               On the freedman’s son see M. L. Gordon, JRS 21 (1931), 65 ff. For a son who capitalized on the benefactions of his father (who won limited advantages for himself) see C x 4760 = ILS 6296.

*       Cic. in Verr. 2. 120; 122 (Sicily); Pliny, Ep. 1. 19. 2 (Comum).

⁷               For the senatorial census Dio gives the figure of 1,000,000 HS (54. 17. 3), and Suetonius 1,200,000 HS (Div. Aug. 41. 1). The latter figure is preferable. See Dio 55. 13. 6, better evidence for the census than Dio 54. 30. 2, and Tac. Ann. 1. 75. 3; 2. 37. 1.

*       See Petr. Sat. 44; Dio 72.16. 3; Cat. 23.26—7. None of the references shows conclusively that the Comum figure applied elsewhere in Italy, or beyond.

*       G. Charles-Picard, La Civilisation de I’Afrique romaine (1959), n8ff., tried to estimate the wealth of decurions from the size of the entry fee. Cf. R. Duncan-Jones, PBSR 17 (1962), 69 ff., on private fortunes and incomes. offices) were required to provide sureties and securities.¹ Decur­ions, who were not paid, were compelled to own a house within the city of a certain standard of opulence, or pay a fine.^{[223] [224]} Moreover, decurions (and magistrates) were expected to be benefactors.^[225] New magistrates, in Africa at any rate, regularly promised to spend a definite amount, most often on a specific project, and just as regularly spent more. Again, from about the turn of the first century a fee for entry into the council was payable by all decurions.^[226] Finally, the responsibility of decurions for public liturgies (munera) and magistracies (honores) involved additional expenditure.^[227] In short, the cities were heavily dependent on their leading citizens, the decurions, for their financial well­being.

size=2 color=black face="Times New Roman">The privileges of decurions in the cities were comparable with those of senators at Rome.^[228] They sat in special seats at the games and in the theatre; they dined at public expense; they used public water free of charge; they received more than others in a distribution of gifts; they wore distinctive dress; high-sounding epithets were applied to the order as a whole.

The effect of such benefits and status symbols was to surround the order of decurions with a certain mystique, and to set it apart from the rest of the populace as a privileged aristocracy. Nor was its prominence lost on outsiders. In a passage of Epictetus the dis­tance between decurion and commoner is seen as comparable with that between a general and a rank-and-file soldier and a magis­trate and a private individual.^[229] Pliny the Younger, in a speech at Comum, spoke of the senate house as a refuge against the unruly plebs.¹ It was Pliny who advised his governor friend Calestrius Tiro to continue preserving ‘the differences between the ranks and degrees of dignity’ in his province.² How such a policy could work out in practice is shown by a third-century Martyr Act. The discovery that Romanos was the son of a decurion (Trarpo/fovAos) put an end to the governor of Syria’s preparations for his torture and cremation. It was only after submitting to long harangues and relentless abuse from the saint that the exasperated governor resumed his original plan.³

Legal privilege, in the eyes of governors such as Pliny, Tiro, and Asclepiades (the governor of Syria), was due to decurions and their families because of their status. Curial privilege was not a crude quid pro quo designed to compensate decurions for additional expenditures.⁴ The Imperial constitutions which defended those privileges (for they defended rather than instituted them) reveal a sensitivity, at the highest level, to both the honorific and the functional aspects of the decurionate. In other words, they were a response to curial status, and to the functions which decurions were performing, and must continue to perform, if the Empire was to prosper.⁵

Veterans and soldiers

An extract from the de re militari of Ulpian’s contemporary, Arrius Menander, establishes the privileged status of veterans:

veteranorum privilegium inter cetera etiam in delictis habet praero- gativam, ut separentur a ceteris in poenis. nec ad bestias itaque veteranus datur nec fustibus caeditur.⁶

¹               Pliny, Ep. 1. 8.16-17.

²               Ibid. 9. 5: ‘ut discrimina ordinum dignitatumque custodias...’ (quoted PP. 77-8).

³               See H. Delehaye, Anal. Boll. 50 (1932), 241 ff.

⁴               See p. 170 n. 1.

⁵               The grant of Latiummaius (Gai. Inst. 1. 96; ILS 6780 (Gigthis) ) should be seen in the same light. Through this concession decurions of ‘Latin’ cities were able to win Roman citizenship automatically on their entry into the council. See p. 266 below.

⁶               Dig. 49. 18. 1: ‘The privilege of veterans, which extends, amongst other things, to the area of delicts, gives them the prerogative of standing apart from the rest in respect of punishments. Thus a veteran is not sent to the beasts or beaten.’

Marcianus, writing a little later, put veterans and their sons on a par with decurions:

New Roman">veteranis et liberis veteranorum idem honor habetur, qui et decurioni­bus : igitur nec in metallum damnabuntur nec in opus publicum vel ad bestias, nec fustibus caeduntur.¹

The position of soldiers is more open to doubt? A passage of Menander indicates that soldiers were subject to beating, which Callistratus (who claims support from unspecified and unquoted Imperial rescripts) rules out for honestiores.³ Again, it has been thought relevant that deserters were not exempt from low-status punishments.⁴

The second argument amounts to little. In his de re militari Tarrutenus Paternus commented:

proditores transfugae plerumque capite puniuntur et exauctorati torquentur: nam pro hoste, non pro milite habentur?

That is to say, a soldier suffered plebeian penalties and tortures only if he acted like a foe. This is stated quite emphatically by Modestinus:

is, qui ad hostem confugit et rediit, torquebitur ad bestiasque vel in furcam damnabitur, quamvis milites nihil eorum patiantur.⁶ Earlier, the same jurist had specifically excluded metallum, opus metalli, and torture from sanctions to which soldiers were subject.⁷

That soldiers could be beaten while honestiores were exempt ’ Dig. 49. 18. 3: ‘Veterans and their sons are held in the same honour as decurions: thus they will not be condemned to the mines or public labour or beasts, nor are they beaten.’

²               Or so thought Cardascia, art. cit. 328 and n. 2. Mommsen (op. cit. 1034) considered soldiers and veterans to be honestiores·, ci. E. Cuq, Manuel des instituts juridiques des Romains² (1928), 108 n. 1: veterans and their sons are honestiores·, soldiers are ‘i quelques Agards’.

²  Dig. 49. 16. 3. 16 (Men.); 48. 19. 28. 2 (Call.).

* Dig. 49. 16. 3. 10 and 16.

’ Ibid. 7: ‘Traitors and deserters are mostly tortured and executed after being cashiered. For they are treated as enemies, not soldiers.’ Paternus was ab epistulis of Marcus and praetorian prefect of Commodus, at whose hands he lost his life; see Kunkel, Herkunft und soziale Stellung 219 ff., no. 54.

⁶               Ibid. 3. 10: ‘The man who flees to the enemy and returns will be tortured and thrown to the beasts or condemned to the fork, although soldiers suffer none of these penalties.’ For damnatio ad bestias cf. ibid. 4. 1.

⁷               Ibid. 3. i; cf. CJg. 41. 8 praef. (Diocl.; soldiers); 9. 47. $ (Carac.; veterans and sons). Deportation of soldiers: Dig. 48. 5. 12 praef.; 49. 16. 5. 4; ibid. 13. 6. from beating is interesting but unimportant. The beating designed to curb lack of discipline, a specifically military problem,¹ is not strictly comparable to the beating imposed in a non-military court on a man of low status, as an alternative to (for example) the fine exacted from a man of rank? It is clear that a soldier might be either fined or beaten?

Proponents of the view that soldiers were excluded from the honestiores might have made something of the frequent use of the death penalty. Soldiers were put to death for outright desertion,^{[230] [231] [232] New Roman",serif;color:black'>[233] [234] [235]} and for sundry actions which were held to threaten the safety of the state. Cowardice, indiscipline, and insubordination cover most cases. The offences include leaving one’s post, losing one’s weapons, stirring up mutiny, disobeying orders, and abusing or assaulting officers? It should be noticed, however, that the context is almost always war. With national security so obviously at stake, it is easy to see why behaviour which jeopardized it was severely punished. For the soldier, this was an occupational hazard.

In short, that soldiers do not quite fit into the honestiores in respect of punishment is an effect of circumstance, which does not alter the fact that theirs was a privileged position before the law?

The subject of Juvenal’s last satire was the rewards of the mili­tary life (praemia militiae), and the bulk of the surviving portion deals with the advantage of the soldier over the civilian in a legal dispute between them. A civilian never had the nerve to strike a soldier, Juvenal says, or to approach a magistrate, if roles were reversed and a soldier was the attacker. For:

Bardaicus iudex datur haec punire volenti calceus et grandes magna ad subsellia surae, legibus antiquis castrorum et more Camilli servato, miles ne vallum litiget extra et procul a signis.^[236]

² See pp. 138 ff.

This was not an ordinary civil case before a regular magistrate— it was a court martial. Moreover, the hostility of the court to anyone daring enough to bring a suit was assured. As for prospec­tive witnesses, they would keep their distance.¹

The general principle that a military court for military offenders benefited soldiers can be accepted. More doubt might be entertained about Juvenal’s further assertion, that soldiers possessed a virtual immunity from prosecution or ‘vengeance’ (ultio). There were, none the less, occasions when officials, both local and Imperial, connived at acts of violence and lawlessness of soldiers, especially the illegal requisitioning by force of animals, boats, food, and men? As for retired soldiers, public officials in Egypt knew they were not easy to deal with, even without their weapons.³ One strategos, presumably irritated beyond control, had a veteran beaten up in Philadelphia, a village in the Arsinoite nome. But the veteran soon sought redress at the court of the prefect.⁴

Juvenal went on to make the general point that the soldier could obtain swift justice, while the civilian was forced to put up with the long-drawn-out processes of ordinary law (11. 35-50). He then turned to the subject of the soldier’s status in private law. The text breaks off in the middle of a discussion of a privilege which went back to Augustus, if not to Julius Caesar:

solis praeterea testandi militibus ius vivo patre datur.s

This was a unique privilege. Not even a consul, if he was a filius- familias, had full possession of his property and rights of disposal centurion with a row of jurors with big calves sitting before a big bench. For the old camp law and the rule of Camillus still holds good that forbids a soldier to attend court outside the camp and far from the standards?

¹  Juv. 16. 29 ff.

²               See P. Lond. iii. 1171 v, p. 107 (a.d. 42); PSI 5. 446 (a.d. 133-7); IGBulg. iv. 2236 (= A-J, no. 139, p. 467; a.d. 238, Scaptopara); A-J, no. 141, p. 476 (a.d. 244-7, Aragua); P. Herrmann, Neue Inschriften zur historischen Landeskunde von Lydien und angrenzenden Gebieten (1959), pp. 11-12.

³               L. Mitteis and U. Wilcken, Grundzilge und Chrestomathie der Papyruskunde (1912), i. 461 (beg. 3rd cent.).

⁴   H. Kortenbeutel, Aegyptus 12 (1932), 129-40.

⁵               11. 51-2. Cf. Dig. 14. 6. 2. See 29. 1. 1 praef. (factio testamenti·. Caesar, Titus, Domitian, Nerva, Trajan); Ulp. Reg. 23. 10; FIRA² i, no. 78, p. 428 (a.d. 119: Hadrian permitted sons to petition for their inheritance). over it.¹ Moreover, the soldier under the Empire had something to bequeath—a peculium castrense,²· which included whatever was saved from pay, donatives, booty, slaves, legacies, and also profits from any land which the soldier had leased in the territorium of the legion.³ If partial immunity from taxation and burdens is added, it can be seen that the Emperors were attentive to the economic situation of the soldier and veteran.⁴ Finally, the gift of land on discharge—as an alternative to a sum of money— put an ex-soldier in a position to play a leading part in local politics.⁵

Veterans were socially and politically prominent, in the main, in smaller cities of recent foundation, for example in Syria and Pannonia. Veteran colonies had faded out about the time of Hadrian, but settlement was not hindered—veterans were well placed to acquire land at little or no cost, especially in frontier districts.⁶ In a period when legions moved rarely, veterans had little desire to leave the area in which they had seen long service as soldiers, especially as most had formed unofficial marriage alliances with women of the neighbourhood.¹ The authorities had long recognized and not discouraged these unions, which produced many of the recruits for the army.² Indeed, in the first part of the second century, steps were taken to ensure that sons born castris followed their fathers into the army: citizenship was acquired by the son not on his father’s discharge, but on his own enrolment into the army.³ This change is reflected in diplomata issued to auxiliary troops.⁴

It is impossible to calculate the extent to which Roman armies from about Flavian times were drawn from the municipal aristocracy.⁵ There was nothing to prevent a veteran passing into

¹               e.g. Tac. Ann, 14. 27: veterans planted in Tarentum, Antium (and Puteoli ?) drift back to the provinces. The settlement of veterans in Italy was abandoned in the reign of Trajan. Note C in 11223 (early 2nd cent.): a veteran of XIV Gemina was a decurion at Claudius’ colony Savaria, but was buried at Carnun- tum; cf. C vni 2699 (end of 2nd cent.): a veteran of III Augusta was a decurion of Thamugadi, but was buried at Lambaesis.

²               It is generally held that the marriage of soldiers was forbidden until Septimius Severus abolished the ban. Herodian 3. 8. 5 ( (sc. avrofc... tnñòðîôå ywa$ òñ avvoiKCiv) may refer to legal marriage—or merely to cohabitation. Legal texts thought to be relevant are ambiguous or pre-Severan in origin or reference. Third-century diplomas, which continue to award conubium, strongly suggest there was no change in the legal position regarding marriage under Severus. See Mommsen, C ill, pp. 2011-12; R. Cagnat, L*Armee romaine d’Afrique (1913), 369 ff.; J. Lesquier, op. cit. 262 ff.; M. Durry, Les Cohortes pretoriennes (1938), 292ff.; E. Sander, art. cit. 152ff.; R. MacMullen, op. cit. 126-7; G. R. Watson, The Roman Soldier (1969), 133 ff. The matter is discussed in Calif, Stud, Class. Ant, (forthcoming).

> The recruitment of sons of soldiers is known earliest on any scale in Egypt. See Lesquier, op. cit. 210-16. It is also known for Africa (see, e.g., C vni 18084), for Pannonia (e.g. in 11218), and Moesia (e.g. in 6188; v 48.

⁴               lang=EN-US>See K. Kraft, Rekrutierung der Alen und Kohorten an Rhein und Donau (1951), 112 ff.: H. Nesselhauf, Historia 8 (1959), 434 ff. The position of children changed between a.d. 139 and 144: contrast C xvi, n. 87 (a.d. 139): ‘ipsis liberis posteris(que) eoru(m)’, and ibid. n. 90 (a.d. 144), where the phrase does not appear. Regular conscription cannot be proved for the early third century. Menander the jurist, when he wrote of the mutato statu militiae (Dig, 49. 16. 4. 10), was thinking of the contrast between the Republican citizen call-up and the Imperial (largely) voluntary recruitment into a long-service army. Conscription from the civilian body increased with the chaos of the mid-third century. By the fourth century, conscription had become regular, also in the frontier zones. See CTh 7. 22. 1 (a.d. 313) and ibid. 2 (a.d. 326); A. H. M. Jones, The Later Roman Empire (1964), ii. 614 ff.

⁵               See Dig. 49. 18. 5. 2. On the social status of soldiers see Durry, op. cit. 302 ff.; E. R. Birley, Roman Britain and the Roman Army (1953), ch. 3, 133 ff.: G. Forni, Il reclutamento delle legioni da Augusto a Diocleziano (1953), H3ff., espec. 119-29; Mann, op. cit.; MacMullen, op. cit., ch. 5, 99 if. Forni makes the curial order, and this is sufficient justification for Marcianus’ statement: ‘Veterans and sons of veterans are held in the same honour as decurions.’¹ Veterans were on the same social plane as decurions, and for this reason (igitur) were similarly favoured in the law courts. The ultimate responsibility for this state of affairs rested with the Emperor. It was expedient for him to look after the soldiers. He was commander-in-chief, and they (the soldiers) created Emperors.²

' Magistrates', 'aedilis', *iudex'

In the statement on atrox iniuria which comes in Paul's Sentences the magistratus, aedilis, and iudex are apparently cited after the senator, equestrian and decurion, as examples of the vir spectatae auctoritatis.³ It might be thought to follow from this first, that the magistrate, the aedile, and the judge were not decurions (for example), and secondly, that they were none the less honestiores.

Neither suggestion is justifi ed on the basis of this text. Protection against injury might be given for two distinct reasons: first, because the protected person either held a position of authority, or exercised a political, judicial, or social function (as magistrates, judges, and parents respectively) ;⁴ and secondly, because the pro­tected person had personal dignitas. Members of the higher orders possessed this dignitas whether or not they were holding public offices at the time.⁵ Similarly, a man holding a position of authority as parent might not have this dignitas. Therefore a list of those who were automatically entitled to an action for iniuria atrox would not necessarily be identical with a list of members of the point that when recruitment came to be concentrated in the provinces rather than in Italy, there was a noticeable improvement in the social ranking of the recruits. Italian recruits were of poor quality (see Tac. Ann. 4. 4. 2), although they were almost invariably of citizen rank.

¹               Dig. 49. 18. 3.

² See J. W. B. Barns, JEA 52 (1966), 141; in general, Sander, art. cit. 232 ff.

³             5· 4· 10: ‘atrox iniuria aestimatur aut loco aut tempore aut persona:... persona, quotiens senatori vel equiti Romano decurionive vel alias spectatae auctoritatis viro.’

^{New Roman">4}e.g. Dig. 47. 10. 7. 8.

^s Neither senators nor many equestrians nor decurions can be adequately described as functionaries or officials with a circumscribed term of office. the honestiores. Further, as magistrates, aediles, and judges were office holders, and were mentioned as such, this passage cannot by itself constitute proof that members of the curial order were never magistrates, aediles, and judges.

It is implied in some legal texts that the decurions were repre­sentatives of a wider group of privileged persons who possessed exemptions from plebeian penalties. For example, Callistratus wrote:

et ut generaliter dixerim, omnes, qui fustibus caedi prohibentur, eandem habere honoris reverentiam debent, quam decuriones habent.¹

It is worth inquiring from what source ‘magistrates, aediles, and judges’ were drawn. There might have been a category of extra- curial families with credentials of the sort which would win for them preferential treatment in the law courts.

'Iudex'. In Rome the iudex, whether juryman or judge, was tradi­tionally appointed from the higher orders.² Under the Empire the minimum requirement for membership of the judicial decur­ies was 200,000 HS, that is, only half as much as the property qualification for equestrian status.³ But that was a nominal figure: the membership of the decuries and the equestrian order over­lapped to a considerable extent.⁴

The provincial juryman was also a man of status and means, although the only qualification of which we have record, 7,500 denarii for membership of the consilium iudicum of Cyrene in the Augustan age, fell far short of even the sum required for member­ship of the decurionate.⁵ About the qualification for sitting as a judge, that is, a iudex pedaneus or iudex datus (the successor of the iudex privates),⁶ nothing is known directly.

1       Dig. 48. 19. 28. 5: ‘And, to speak generally, all who are excluded from beat­ing ought to be given the same respect for honour as decurions are given.’

2       On iudex see Steinwenter, RE 9 (1916), 2464 ff.; and s. 5 (1931), 350-6. The iudex was not a magistrate but acted as a pvivatus. He lacked imperium (e.g. Dig. 5. 1. 58).

3 StR iii. 535.                         ⁴ R. Duncan-Jones, PBSR 22 (1967)» *59 ff·

s EJ 311. i; cf. Cic. in Verr. 2. 32 (ex conventu civium Romanorum).

⁶               See RE 9. 2470. The iudices pedanei were delegated minor cases (CTh 1. 16. 8: negotia humiliora) by the governor. See CJ 3. 3; 9. 22. 11; Dig. 2. 7. 3· 1; 3. i· 1. 6; 26. 5. 4; PS 5. 28.

ludicare is described by the jurists both as a ‘public liturgy’ (munus publicum) and a ‘private liturgy’ (munus personale) for citizens of the cities.¹ Decurions must have acted as judges, as they bore the brunt of liturgies. There is indirect evidence that it was at least common for judges to be decurions. A text in Paul’s Sentences prescribes expulsion from the ordo as a punishment for corrupt judges:

iudices pedanei si pecunia corrupt! dicantur, plerumque a praeside aut curia submoventur aut in exilium mittuntur aut ad tempus relegantur.²

It would be surprising if iudices were not all drawn from the aristocracy in the provinces. However, some members of the pro­vincial aristocracy may not have been decurions.

'Aedilis’. In Rome the aedile was a minor magistrate with ad­ministrative responsibilities and jurisdiction in minor matters.³ In Italian towns he was a municipal magistrate. Juvenal charac­terized him as a ‘nobody’ whose time was spent on trivia.⁴ Aedilis in Paul’s Sentences might refer to either the Roman or the municipal aedile, or both. In each context he was a minor magistrate, in Rome, with senatorial dignity, in a municipium, normally without full membership of the council, although likely to advance into it on the strength of his magistracy. Much of the section on the magistrate which follows will be relevant to the condition of the aedile.

‘Magistrates'. The clearest statement about the relationship of magistracies to the decurionate is to be found in Paul’s Sentences:

is, qui non sit decurio, duumviratu vel aliis honoribus fungi non potest, quia decurionum honoribus plebeii fungi prohibentur.⁵

* Dig. 5. 1. 78 (public); Dig. 50. 4. 18. 14 (private).

²               b*S 5. 28: ‘If petty judges are said to have been bribed, they are mostly expelled from the senate house, or sent into exile, or relegated for a time by the governor.’ The last two penalties are also for men of high status (cf. PS 5. 23. 11: deportatio).

³               For the aedile’s edict see Dig. 21. 1; cf. Gai. Inst. 1. 6. For his jurisdiction, at Rome, StR ii. 491 ff.; in the cities, lex Urs. 94; lex Mai. 66; Ñ XII 1377 (Vasio); viii 972 (Neapolis, Africa).

⁴ Juv. 10. 102; cf. Pers. 1. 130.

⁵               Dig- 5°· ²· 7· 2 (PS): ‘He who is not a decurion cannot hold the duumvirate or other offices, because plebeians are barred from holding curial offices.’ This principle may well have held in some areas of the West towards the close of our period. The presence of thirty-two pedani (decurions who had held no office) in the album of Canu- sium of a.d. 223 suggests that there the holding of even the minor offices followed election into the order.¹ But the above principle clashed with the older, traditional one, that some magistracies, far from being the reserve of decurions, actually gave access to the ordo decurionum. By the latter principle it was possible to distinguish between major magistracies held by decurions and minor magistracies accessible to commoners? Thus the situation envisaged in Paul's Sentences did not by any means exist in every period. Without indulging in speculation about the process by which constitutional practice evolved in the cities, we can say with assurance, that in the earlier stages of that evolution, there existed a small number of families which possessed the property qualification for the decurionate, had not yet achieved that honour, but were seeking to win it. However, it is equally certain that we must look elsewhere, if we are seeking to locate a sizeable, wealthy, independent group of magistrates and ex-magistrates outside the council who were a force to be reckoned with in the cities and provinces.

Some time ago Levy drew attention to a peculiarity of the local scene in the East, the existence of ‘une sorte de classe de magi­strals’, which dominated the council from without as a ‘collège de fonctionnaires supérieurs’.³ Levy supported his case with evi­dence of the quasi-liturgical nature of many Eastern magistracies. The basic qualification for office holding was wealth, and as wealth was hereditary, offices tended to be hereditary. A cursus honorum can barely be said to have existed.

Levy’s theory is neither confirmed nor refuted by the epi­graphical evidence. A magistrate or ex-magistrate whose honorific

¹     C ix 338.

²               For the distinction, Pliny, Ep. 10. 79. A strict cursus honorum was not always observed. Apart from the evidence of inscriptions, Dig. 50. 4. 11 praef. (Pius) and ibid. 14. 5 (Call.) show indirectly that offices were sometimes held out of order. There is no assurance that the offices which plebeians were urged or forced to undertake in Severan times (ibid. 14. 4) were minor magistracies.

³               I. Lévy, ‘Études sur la vie municipale de l’Asie Mineure sous les Antonins’, REG 12 (1899), 265, 269.

inscription omits any mention of membership of the ordo might still have been a decurion. Similarly, it is hard to believe that only those officials of Egyptian metropoleis who are specifically stated in the papyri to have been councillors were councillors. Again, in some places there are signs of an awareness of a dis­tinction between offices open to decurions and other offices— although it can still be asked whether the dividing line was ever rigid, or anything other than theoretical.¹

The problem is a complex one, because of the slow but thorough transformation which overtook Greek institutions in the East in the course of the Antonine and Severan periods. The assembly faded out as a political force. Magistrates lost power to a coun­cil which at one time had a temporary membership, but which became a permanent body, containing, more and more, the richest and most distinguished men of the city. Yet, through much of the period, there may well have been a division between independent

1    A. Η. M. Jones (Greek City (1940), 342 n. 47) quotes IGRR iii. 623 (Xan­thos) as evidence that the dictum in PS applied to Greek as well as Latin cities. The inscription indicates that there was at least a theoretical distinction between a δημοτική αρχή and a βουλευτική αρχή. (Cf. SB 7261, where βουλευτικοί λειτουργίαι are contrasted with δημοτικοί ύπηρεσίαι.) It is one thing for such a distinction to exist, and another thing for it to be enforced. (Incidentally, if the PS dictum did apply, it is a little odd that a δημοτική αρχή was mentioned at all, unless αρχή had completely lost its original meaning.) Next, he refers to JEA 21 (1935), 224 ff. (c. A.D. 250, Arsinoe). The prefect asks theprytanis: ιδιω[ται γίγνον]ται πα[ρ’] (sc. ΰμϊν) [κο]σ/η?[τ]αι ή και [β]ρυλε[ιη·]αί; άπεκρ(ίνατο) ιδ[ι]ωται (1. 69). The words ή και [0]ρυλε[υ]ται are interlinear. The implication is that βουλευταί were never chosen as cosmete (cf. 1. 61). Some parts of the text are not easy to decipher. But it is absolutely clear that villagers, rather than private individuals in the city, had appealed to the prefect. They produced a decision of Severus which ruled that villagers should not be called to μητροπολειτικα'ι λειτουργείαι (1. 83). The qualification for the office of cosmete was wealth: a man was nominated οπ[^τα]ν εχτ) ευπορίαν (1. 70). ‘How many Arsinoites (? are in this category)?’ The prytanis replies: Over 300’. The next few lines are unintelligible. The sense must be that the ‘over 300*, who, from the context, do not appear to be the βουλευταί, had already served as cosmete, or were serving in other magistracies (the αγορανομία and perhaps the δεκαπρωτεία are mentioned in this connection). It seems that the councillors of Arsinoe had unloaded as many of their burdens as they could onto private citizens, both city-men and villagers. So little were they interested in maintaining a strict division between βουλευτικοί and δημοτικοί λειτουργίαι or άρχαί, although in theory there may have been such a division. Levy (art. cit. 266 ff.) distinguishes between powerful and less powerful magistrates within the ‘bureau’ of magistrates (headed by the scribe of the people), and also between ‘political* and eponymous magistrates, but makes no case for a regular progression from lower to higher ranks.

and extra-curial magistracies, and curial magistracies. Some magis­tracies were in the virtual possession of single families, and they were not abolished overnight, nor were they quickly robbed of their power. Of the dignitas and social influence of the holders there can be no doubt. Moreover, priesthoods were often hereditary, and they are likely to have stood outside the council.

By the fourth century both priests and magistrates seem to have been councillors.¹ The earlier division between magistrates had now shifted within the council itself, where the top stratum, the prin­cipales, did their best to oppress their weaker colleagues.²

The extra-curial families in the second and third centuries are difficult to pin down. They might be sought, for example, among the members of the gerusia, an aristocratic club which is found in many Eastern cities. Half the foundation members of the gerusia in Sidyma were Stj/zotoi (commoners), and half were /ÇîèËåèòà¿ (councillors).³ If this gerusia was not eccentric, birth and wealth were important qualifications for membership.⁴ At Pergamum, where numbers were restricted, aspirants for membership were favoured if they had been magistrates or priests.⁵ Might not they have been among the Scotch enrolled at Sidyma ?

Callistratus may have given a further clue when he referred to mandata ‘de decurionibus et principalibus civitatium’.⁶ This may

¹               For the fourth century see the album of Thamugadi, C VIII 2403 + 17824, partly reproduced in ILS 6122, and improved by L. Leschi in REA 50 (1948), 71 ff.

²               CTh 11. 16. 4 (a.d. 328); cf. 12. 3. 2 (a.d. 423); Symm. Ep. 9. 10; A. F. Norman, JRS 48 (1958), 79 ff., espec. 83 ff.; Jones, Later Roman Empire, ii. 731 and nn. The term principales (civitatium) was known to Callistratus (Dig. 48. 19. 27. 1), but on that passage see below. There were, of course, divisions in the ordo before the fourth century. See Dig. 50. 4. 6 praef.; 50. 7. 5. 5.

³               TAM ii. 175-6 (a.d. 185-92). On the gerusia in general see Jones, Greek City, 225-6; E. G. Turner, Archiv 12 (1937), 179; J. H. Oliver, Hesperia Suppl. 6 (1941).

⁴               Membership by wealth: there was an entry fee at Pergamum (H. Hepding, Ath. Mitt. 32 (1907), nn. 18-19, 294-5, 298-9) and Hyettus (Syll.³ 1112, pre- a.d. 212). Membership by birth: see the inscriptions from Pergamum and Hyettus, and the list at Sebaste in a.d. 99 (W. M. Ramsay, Cities and Bishoprics of Phrygia (1895-7), 602). Membership was a family matter at Sebaste, with father, mother, and five children represented.

³ For ex-priests see Hepding, art. cit.

⁶               Dig. 48. 19. 27. i. Callistratus’ origin is commonly thought to have been Greek. See Kunkel, Herkunft und soziale Stellung*, 235, no. 61. imply that not all the influential men were in the ordo. Another section of the same mandata mentions qui ex principalibus alicuius civitatis. There is no contradiction, if decurions were among the principales.¹

Finally, Ulpian said that the choice of doctors (perhaps for exemption from burdens) lay not with the provincial governor,. sed ordini et possessoribus cuiusque civitatis’.² A fragmentary inscription from North Africa records a meeting of the possessores and decuriones of a certain town.³ Evidently ordo {decuriones) and possessores are not coextensive terms, and possessores seem to have had a power and influence which was not derived directly from office.⁴ Possessores might include decurions: in an inscription from the vicus Vindonianus within the territory of Aquincum in Pannonia a group of possessores includes a priest who was a decurion, another decurion, an equestrian, and a veteran.⁵ Not enough of the inscription is legible for it to be possible to determine whether the other men on the list had similar backgrounds. In North Africa groups of small landowners who were veterans or of veteran stock styled themselves possessores.⁶

It is therefore possible to assert that there were prominent provincials apart from decurions, whose prestige in the community would have compared favourably with that of decurions, and who for that reason—if we remember some words of Callistratus quoted earlier⁷—might have been given preferential treatment in law courts. Some were veterans. Others came from magisterial or priestly families. Moreover, there were doubtless some wealthy landed gentry, in every period, who were well-enough established

¹               Acta Carpi Papyli et Agath. (Decius), K-K, no. 2, p. 8, §3. The pro- consul said to Papylus: principalis es? He replied civis. In the Greek version the question is /fouAeurjfc el; and the answer TioAirgs dpi.

²Dig. 50· 9· 1·

³               A-J, no. 146, p. 483 (a.d. 186). Add C xr 15: erga ordinem possessores et cives.

⁴               See also Dig. 7. 1. 27. 3 and 50. 4. 18. 25 (cf. 50. 1. 8). In 2. 8. 15 praef. possessores immobilium rerum are exempted from a security payment or vadi­monium. So are men of fides (40. 5. 4. 8) and honestas (26. 4. 5. 1).

^{size=2 color=black face="Times New Roman">5}               C in 10570. Cf. IGBulg. iv. 2236 (a.d. 238, Scaptopara). Aurelius Pyrrhus, presumably a veteran of a praetorian cohort, goes on an embassy for the citizens. He is described as convicanus et conpossessor. And see Dig. 49. 18. 4 praef.

⁶See H. d^JEscurac-Doisy, Ant. afric. 1 (1967), 59-71.

⁷Dig. 48. 19. 28. 5 (quoted above, p. 252.)

not to be desirous of office, and sufficiently powerful to be able to resist pressure to accept office, or to buy immunity from it.¹

Conclusion

To the Romans the source of legal privilege was dignitas (honor, prestige). Dignitas was derived from political position or influence, style of life (character, moral values, education, etc.), and wealth.· Each of the privileged groups discussed above possessed these attributes in some measure.

This view may be accepted with two qualifications. First, it should be recognized that differences in power, status, and wealth within the honestiores were reflected in the value of the privileges afforded.² Secondly, there were channels to legal privilege other than those which led through prestige, and were overtly recognized and sanctioned by the legal authorities. The legal privileges of Imperial freedmen are to be explained purely in terms of their proximity to the seat of power.³ They were gained independently of dignitas or a social standing which would be acknowledged by judges and officials. Similarly, these privileges did not gain for the freedmen a status which could be justified in terms of the prevail­ing social values. Imperial freedmen were not held to be honestiores. Again, the section on civil law provided examples of power and wealth as direct sources of de facto legal privilege. The institution of self-help favoured the powerful, and the rules governing the provision of bail and guarantors benefited the rich.⁴ Thus it

^x Cardascia (art. cit. 328 ff.) argued that negotiatores were not honestiores. Ulpian wrote of the punishment of dardanii: ‘nam plerumque, si negotiantes sunt, negotiatione eis tantum interdicitur, interdum et relegari solent, humiliores ad opus publicum dari’ (Dig. 47. 11. 6 praef.). Cardascia saw that this passage does not justify the inclusion of negotiatores among the honestiores, but gave himself difficulties by seeing a ‘literal opposition* between negotiantes and humi­liores. There is a break in the sense after interdicitur*, interdum et relegari solent is balanced by the humiliores clause, and Ulpian might just as well have written honestiores relegari solent. Cardascia’s theory that some of the traders would have possessed the equestrian census and qualified for milder punishment in that way may well be correct. (Yet Cardascia does not believe that possession of the equestrian census in itself meant that a man would be punished with relegatio rather that opus publicum.) Constantine declared that negotiantes were equestrians (CTh 13. 5. 16).

2 This fact, which is passed over by the jurists, is examined below, ch. 12.

3                                                   See pp. 85 ff. above.     ⁴ See ch. 7 above. might be suggested that dignitas was the source of legal privilege only in so far as the distribution of prestige reflected the realities of the Roman social and political structure.

lang=EN-US style='font-size:11.0pt;line-height: 115%'>It might be argued, in addition, that citizenship should be placed alongside power, style of life, and wealth as a source of legal privi­lege. This suggestion raises important questions, and may be con­sidered in detail.¹

¹               The conceptual problems involved in such a view are discussed by W. G. Runciman, in Social Stratification (ed. J. A. Jackson, 1968), 34 ff.

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