Public Law: Regulation and Exploitation
The combination of edictal law and jurisprudence, and the occasional adoption of international or local norms (laws and customs) certainly facilitated the development of commerce by providing the business community with adequate legal instruments and protection.
However, there is another side to the coin, reflecting social and political concerns and fiscal necessities. This is where public law steps in.Starting in the early republican period, a series of leges fenebres tended to limit the rate of interest before banning interest altogether, although unsuccessfully. Other public laws bearing on commercial activities regulated the food supply (leges annonariae/frumentariae), luxury consumption (leges sumptuariae), the occupation of agricultural land (leges agrariae), and taxation.137 The point was to preserve the social order and the political power of the elite. One such law, the plebiscitum Claudianum of 219/218 BC, reiterated in slightly different form by the lex Iulia repetundarum of 59 BC, barred senators and their sons from owning — although not from operating - ships of large capacity (over 300 amphoras), so excluding them from lucrative public contracts connected with the food supply and hampering the marketing of the produce of ever-growing agricultural estates.138 The ban may have been instrumental in developing the actio exercitoria and its extension to non-dependent captains of ships. The activities of shippers (navicularii) drew the attention of imperial government officials and gave rise to an abundant legislation into late antiquity. At stake was the reliability of the food supply of Rome and, from the fourth century, that of Constantinople. Organized in associations (collegia, corpora), at first the shippers enjoyed privileges such as exemption from compulsory public services; they ended up fulfilling a public service even against their will.size=1 face=Arial>139
State control over economic activities was not limited to shipping and became a general phenomenon in the fourth and fifth centuries. Unsurprisingly, it affected trades connected with the food industry (bakers, meat sellers, and so on), but it also extended to other commercial activities.140 It was mostly exercised through taxation: in the republican and early imperial periods, trade was subject to all kinds of taxes, above all tolls and custom duties (portoria) at both municipal and imperial levels.
141 It is difficult to estimate the impact of taxation on the volume of trade, but it is clear that the burden increased with time: from the reign of Constantine until AD 498, a special tax in gold and silver called collatio lustralis or chrysarguron was collected on behalf of the imperial treasury from merchants, who therefore had to be registered.142 By then, the time of laisser-faire and promotion of commercial activities on the part of public authorities was long gone.Traders were not just considered a fiscal golden hen by a needy government. The attitude of lawmakers towards them had changed. The preamble of Diocletian’s Price Edict (AD 301) accuses them in no uncertain terms of greed and selfishness and of being the cause of uncontrollable inflation, threatening them and their agents (institores) with capital punishment unless they desist from speculating and abide by the law setting maximum prices, possibly unrelated to market prices. A few years later, Lactantius claimed that the ill-advised imperial policy resulted in both slaughter and scarcity of goods.143 In spite of its failure and eventual repeal the measure shows that it was soldiers rather than traders who had the emperor’s ear.
17.