THE LEGAL BASIS OF THE DUAL-PENALTY SYSTEM

Cardascia remarks upon the appearance of ‘class’ distinctions in ‘the law’ from the time of Pius. Variation of penalty according to the class of the defendant (his argument runs) was a reality in ‘judicial practice’ before Pius’ reign; from Augustan times a judge was free to vary the penalty according to the circumstances of the case, including the status of the accused.

By ‘the law’ and ‘legislation’ are meant Imperial constitutions, the rescripts and edicts of Emperors? The true ius stemmed from the Republican organs of state—the popular assembly and the magistrates. But comitial legislation had disappeared by the second century, and the ius honorarium, or magisterial legislation, was finally frozen by its codification under the supervision of Hadrian’s jurist Julian, after a century in the course of which few innovations seem to have been introduced into it. As the old Republican legislative machinery ran down, an independent emender, inter­preter, and creator of law was coming forward.³ The Emperor gave

* Cardascia, art. cit. 467 fr.; cf. 307, 331. See also de Robertis, ZSS 59 (t939)> 219 fr., on which Cardascia’s analysis is partly based. On Cardascia and class see p. 234 n. 1.

²               On Imperial legislation, G.

³               R. Orestano, BIDR 44 (1936-7), 272 ff., argues against Wlassak’s view that Imperial edicts were merely interpretative. J. Gaudemet, Festschr. für E. Rabel*

ii.     169 ff., has attempted to separate corrective, interpretative, and creative constitutions.

orders and made decisions by edicta and decretal Mandata were instructions to officials, and were meant to be obeyed.² Rescripta and epistulae too were treated as orders.³ They were replies to the consultations of officials or the requests of private individuals. An ad hoc decision might easily be transformed into an established rule which was binding in other situations.⁴ Ulpian knew of an opinion given by the jurist Neratius Priscus which Hadrian in­cluded in a rescript and which was treated as ius in his own day.⁵ Before the middle of the second century jurists were citing Imperial rescripts in their works,⁶ and it was not long before collections of constitutions were appearing. No judge could safely ignore them. In the words of Marcianus, ‘But if a judge neglects the constitu­tions of Emperors, he is punished.’⁷

The authority of the new law probably won only gradual accep­tance. Curiously, the only hint of resistance comes comparatively late, and from an unlikely source.

¹               Edicta were applicable throughout the Empire. Decreta were specific judicial decisions which of course might be applied generally. See Hesky, RE 4 (1901), 2289 ff., b 1, decreta principis; Ruggiero, DE 2 (1910), 1497 ff., decretum; 2 (1926), 2129 ff., epistula\ Wilcken, Hermes 55 (1920), 1 ff.; Luzzatto, Scritti di diritto romano in onore di C. Ferrini (ed. G. G. Archi, 1946), 265 ff.

²               Kreller, RE 14 (1930), 1023 ff., iv. 2c, mandata principum. Mandata might be published by the governor in an edict. See Dig. 48. 3. 6. 1; Pliny, Ep. 10. 96. In Ep. 10. no it is not stated how the content of the mandata became known to the ecdicus of Amisus.

³               Brassloff, RE 6 (1909), 204-10, epistula, identified epistula and rescriptum. Cf. DE 2, 2129-35. For other views, Mason Hammond, op. cit. 339, Jolowicz, op. cit. 379. No absolute distinctions can safely be made between the various categories of enactments. See Dig. 5. 3. 25. 16 (‘nam et divus Marcus... decrevit... exemplo rescript! divi Marci’); 48. 8. 4. 2 (‘idem divus Hadrianus rescripsit... edictum meum’); etc. How is Dig. 39. 4. 4. 1 (‘divus Hadrianus praesidibus scripsit’) to be classified? See also above, p. 168 n. 2.

⁴ As Trajan apparently appreciated, SHA Macr.

^s ‘extat Neratii sententia existimantis bona esse vendenda: et hoc rescripto Hadriani continetur, quo iure utimur.’ Dig. 42. 4. 7. 16; cf. 48. 13. 5. 4; 47.

12.   3. 5.                                           ⁶ Dig. 22. 3. 13; cf. 50. 17. 191 (Celsus).

⁷               ‘sed et si iudex constitutiones principum neglexerit, punitur.’ Dig. 48. 10. 1. 3.

⁸               SHA Macr. 13. 1. The authenticity of this anecdote is suspect. Rescripts lost much of their authority in the fourth century (Jones, Later Roman Empire^ 472), to which SHA belongs. Syme, Ammianus and the Historia Augusta (1969).

175 which gave him imperium.¹ But the lex de imperio does not seem to have conveyed any such power. Technically Macrinus was right: Imperial legislation had no more than a de facto validity in the ‘restored Republic’. But Macrinus’ protest was hopelessly out of date. Imperial constitutions were firmly established as sources of law. To abolish them would have been to bring havoc to the legal system; to question them would have been to challenge the authority of the person from whom they derived?

Some of the relevant constitutions have been divided into two groups. To these groups (one concerned with privileges of children of decurions and others, one with those of decurions themselves, and each now increased in size with the addition of pre-Severan material)³ a third may be added comprising three rescripts on the punishment of individual crimes—Hadrian’s on the moving of boundary stones, and Pius’ two on the murder of adulterers and on thefts from Imperial mines.⁴ What has to be settled is the extent to which these rescripts, representing the law of Imperial con­stitutions, backed the dual-penalty system and changed its basis in law.

It is evident that the rescripts lack generality: they manifestly fail to cover the whole field of privileged categories, penalties and crimes.                t

’On th® ^validity of the edicts of Emperors see StR ii. 911 ff.; M. Wlassak, Kritische Studien zur Theorie der Rechtsquellen (1884), 133 ff.; R. Orestano, art. cit. 219 ff. Orestano argues, correctly, in my view, that the Imperial ius edicendi is different from the magisterial ius edicendi (229 ff.). The Emperor’s power to legislate was an extension of his magisterial powers by auctoritas.

¹ Add to group one CJ 9. 41. 11 praef.; to group two, Dig. 48. 19. 15; 48. 22. 6. 2; CJ 9. 41. 8 praef.

⁴               Oig‘4T· 21.2 (excluded by Cardascia, see art. cit. 468); 48. 5.39.8 (cf. 48.8. *· 5)> 48. 13· 8.1. Dig. 47. 18. 1. 2 is a text of a different kind, but perhaps could be included—the jurist’s following comment shows that Marcus’ punishment of an equestrian presupposes the use of the dual-penalty system.

⁵               Cf 9. 47. 5: ‘honor veteranis etiam in eo habitus est, ut liberi eorum usque ad primum dumtaxat gradum poena metalli vel operis publici non adficiantur,

Emperor that decurions were not to be condemned to the mines. But Alexander informed one Demetrianus that as his mother was a decurion’s daughter she was not to suffer that fate.¹ Observations of lawyers supplement the rescripts to some extent, but even so the field is not fully covered.

Next, on crimes, we have not been able to find anything ap­proaching a complete set of rescripts covering every crime and prescribing dual penalties. Only three judicial decisions of Em­perors survive in which dual penalties are employed, and for other information we must turn to the descriptive comment of jurists on crime and punishment in their time.

Finally, on penalties, there are no general Imperial pronounce­ments about penalties containing directions which could be applied in the punishment of each offence as it came up. For less authorita­tive statements of this type it is necessary to have recourse once again to the jurists.

Thus if the alleged enhanced legality of the dual-penalty sys­tem depended on Imperial constitutions, we should have to con­clude that some parts of the system had a higher status in law than other parts. The paradox is intensified when it is recognized that all the rescripts we have been discussing are concerned with the penal system, and that virtually all our information about discrimination in other spheres of the law comes directly from jurists, if from a legal source at all. The Digest contains hardly any explicit information on the subject of lower-level and higher- level tribunals; we have only Ulpian’s note on the practice of referring to the Emperor capital cases involving decurions, and he cites no higher authority. Again, the praetorian practice of with­holding actions against members of the aristocracy was no less

sed in insulam relegentur? No rescript refers to the privileges of soldiers before Diocletian’s of CJ g. 41. 8 praef.

¹               CJ 9. 47. 9: ‘si matrem tuam decurionis filiam fuisse probatum fuerit, apparebit earn non oportuisse in ministerium metallicorum nec in opus metalli dari.*

² On equestrians, p. 175 n. 4 above.

T77 ‘valid’ because no Imperial rescript backed it openly. Conversely, Hadrian’s rescripts on witnesses did not in any new and more authoritative way empower judges to discriminate in favour of witnesses of status.¹

To resolve the dilemma it is necessary to go back to the rescripts, and see what can be said as to their purpose or purposes and the use made of them by the classical and post-classical jurists.

The nine rescripts in the first two groups were apparently aimed at repelling specific challenges to the privileges of high-status groups that had come to the notice of the Emperor. Some of them were picked up by the classical jurists and cited in their works to point to existing rules, or to show that specific contemporary practices had Imperial authority behind them. They were not necessarily cited because they were thought to be milestones in the evolution of legal discrimination. As was pointed out previously, the rescripts contain little that is creative, and in any case the jurists had no intention of describing the emergence of discrimi­nation according to status. These rescripts appear in the Digest among other items loosely arranged under general headings with­out any regard to chronological order or historical context. Other rescripts appear in the Codes in an arrangement which is chrono­logical but also lacking in historical sense.

The background of two of the three rescripts in the third group is uncertain; but the two rescripts of Pius were probably prompted, as the Hadrianic rescript certainly was, by requests for rulings on the proper penalties for specific crimes. Now Hadrian and Pius prescribed dual penalties for the three offences. By so doing they can certainly be said to have shown themselves in favour of the dual-penalty system, but not necessarily to have given it a legal standing which it did not have before. There can be no assurance that Hadrian’s rescript was the first of its type. It was certainly not quoted because it was the first of its type. Ulpian’s inten­tion was simply to present precise information about the proper punishment of a specific crime for the benefit of Severan gover­nors. In all probability there were rescripts or decrees of earlier

¹               Dig, 48. 22. 6. 1 (reference to Emperor); pp. 182ff. below (withholding actions); Dig. 22. 5. 3 (witnesses).

Emperors on other matters, which might have survived in the legal sources, had chance allowed.

The early Empire saw the establishment in the criminal sphere of a system of dual law. Through penalty variation, judges and courts were able to deny to members of the lower orders, de iure, benefits and protection equal to that afforded members of the higher orders. Differential punishment as practised by judges was sanctioned by jurists and Emperors. It had as much ‘legality’ as the cognitio procedure with which it was closely associated; and cognitio arose from and was supported by the administrative (as opposed to legislative) action of the state.¹ The few Imperial constitutions of second- and third-century date did not ‘estab­lish’ the dual-penalty system or give it increased ‘validity’. At the most the constitutions confirmed its status as administrative law. While the ‘appearance’ of status discrimination in ‘the law’ has thus no intrinsic legal interest, it is nevertheless a significant historical phenomenon. It points to the difficulties experienced by the central administration in Rome in imposing its policies throughout the Empire. The constitutions are preoccupied with the privileges of decurions and veterans and their children because they were subject to the jurisdiction of those officials whom the Emperors were least able to control—the provincial governors. Similarly, the constitutions concentrate on the penal law because the privilege of milder penalties was the privilege most valuable, and most accessible, to the provincial aristocracy.

¹ For the Roman antipathy towards State legislation see F· Schulz, Prin­ciples of Roman Law (1936), 6 ff.