Stop Quoting Laws to Us, We Carry Swords

This is a famous quote from Plutarch (Life of Pompey 10.2), admittedly written over a hundred years after it was supposedly said, and in Greek. In fact, the translation I have in front of me actually says’ Cease quoting laws to us that have swords girt about us!’ (trans. Perrin).  It was said to the so-called Mamertines of Messana (Messina) in Sicily. Since these Mamertines were descended from Latin-speaking freebooters, their laws seem to have been cobbled together out of bits of Roman law.

That might include extracts from the Twelve Tables, the earliest known Roman law code, or from a regional code – many think that Salic Law, used by the Franks in the sixth century, may just be the local law of Roman Gaul. As the Kentish Law of Aethelbehrt (c.AD595) in Old English is so very close to the Lex Longobardorum, Lombard Law, which is in Latin and unlikely to have been translated from Old English, perhaps the Kentish Law is that of Roman Britain too. If Salic Law is just local Roman-era law, then much of it was far less grand than we generally suppose.

It’s also been noted that the Breviary of Alaric, written for the Visigothic king of Southern Gaul, Alaric II (early 500s) is a cut-down version of the Theodosian Code (early 400s), suggesting it was the law current in that area of Gaul prior to Alaric.

A great deal of research has gone into the Roman legal codes, as collected several times, notably by legal historians working for Theodosius II in the eastern empire in the early fifth century and again under Justinian in the sixth (the Code codifies Roman Law, the Institutes collects important jurisprudence (legal opinion on how laws should be interpreted) and the Novels brings together Justinian’s own laws; it’s noteworthy that the  Code and Institutes are in Latin, but the Novels are in Greek.

I was going to call this piece ‘Discipline and Punish’, after the book by the late Michel Foucault (Discipline and Punish: The Birth of the Prison), as these are major themes in the history of Rome.

Powerful people – mainly men – had two particular powers: beneficium and maleficium, literally the power to make things good or bad for others. Although Roman law had long banned debt bondage – temporary slavery until a debt was repaid – the result was clientela, in which a cliens danced daily attendance upon his patronus, who exercised patrocinium over him, in effect became a sort of father to him. It is said that a patron would often inscribe the name of his clients on a stone plaque in the atrium of his house. And since very rich men owned houses and land widely across the empire, we should assume that these were merely the clients in a single district.

The role of the paterfamilias is quite well known and the bizarre punishment set out from the late Republic for parricide – murder of one’s father – was a marker of the social disapproval of this crime. This was the poena cullei, under which the convict was sewn into a leather sack with animals and thrown into water, originally the Tiber. Originally just snakes (I say ‘just’ only in the light of what follows), under Hadrian it was extended to include a cock, a dog, a monkey and a snake; this faded until revived by Constantine (who restricted it to snakes) and later by Justinian. As the emperor was pater patriae, father of the fatherland, to conspire against him could be construed as parricide (as well as treason: maestas). It does seem that the ‘bad’ emperors of the third century may have been slightly more humane, or less inhumane, than the ‘good’ ones before and after.

The enormous power and wealth of landowners was a tiny reflection of the vast power held by emperors: the relief of the underclass from famine at Rome listed on two occasions by Augustus in his Res Gestae was only possible because he personally owned Egypt.

Nevertheless, provincial governors might extort the wealth of their province with little likelihood of being caught, or if caught, punished. Cicero, prosecuting Verres, the former governor of Sicily, said a corrupt governor must make three fortunes: one to repay the bribe he paid to get the job, one to bribe the judge at his inevitable corruption trial, and the third to live on afterwards (In Verrem 1).

The power to instigate patrocinium over clients was a means to discipline them. Claques of them would applaud and chant the name and slogan of their patron at elections and other public events. Ramsay MacMullan (Corruption and the Decline of Rome) notes this is very similar to what was going on in eastern Europe at the time he wrote. This was in 1988, and he singles out the praise given to Ceausescu, the dictator of Romania; on Christmas Day 1989, he was shot by firing squad, dead alongside the smoking ruins of the Warsaw Pact. Today, the model would be the Kim dynasty in North Korea. Within a region, local magnates (possessores and potentiores are the main terms used) could dominate all civic life. The weird behaviour of some emperors such as Gaius and Commodus seems to be a marker of how far they could push people before they rebelled.

Holders of public office often used it to enrich themselves, despite the frequent trials for excessive corruption. Musonianus, Pretorian Prefect of the East in the reign of Constantius II, was known for a love of ‘filthy lucre’. A contemporary, Theophilus, governor of Syria, was torn to pieces by citizens for extortion. Ammianus tells us how brazen some theft might be:

[Theophilus] was matched by Prosper, who was at that time still representing the cavalry commander in Gaul and held military authority there, an abject coward and, as the comic poet says, scorning artifice in thieving and plundering openly.

Meanwhile The Persians ‘kept raiding our territories with predatory bands, now fearlessly invading Armenia and sometimes Mesopotamia, while the Roman officers were occupied in gathering the spoils of those who paid them obedience’ (Ammianus XVI, 13). You can see that for many people, being ruled by the Persians was better than by Romans, because they may have been seen as less corrupt.

One of the worst cases of rapacity was that of Paul The Chain (Paulus Catena), described as a Persian by birth (Ammianus XV,3, where he is directly compared to Verres) also known as Paulus Tartareus, as of the keeper of Hell. He was sent to Britain to seize local lords who had sided with Magnentius against Constantius II (Ammianus XV,6). He piled chains on everyone and seized their assets for himself.. He then proceeded to do the same at Scythopolis, in Palestine, trumping up charges, imprisoning large numbers of people and torturing to extract money (Ammianus XIX, 12). He was so corrupt that Julian had him arrested, taken to Chalcedon in Asia Minor, tried and burnt to death (Ammianus XXII,3).

Perhaps the most vicious depiction of the kleptocracy is that of Rufinus, a Gallo-Roman sent to the Eastern Empire to be Master of the Offices to Arcadius, the elder son of Theodosius. He gets not one but two poems denouncing him by Claudian, the court poet of Stilicho I the late fourth and early fifth centuries. In Rufino (Against Rufinus, the terminology deriving from that of the law courts) I and II contain a detailed description of the way in which Rufinus stole vast sums, in the same abject and thuggish manner.

There is a term so close to patrocinium that there has to be a pun involved: ‘latrocinium’, from latro, latronis ‘thief’ can be translated as ‘a state of thiefdom’, brigandage. Neither was exactly lawful, but the master took what ever he wanted. The term is much wider than simple furtum (theft, hence ‘furtive’), theft of a thing, even real estate.

From the reign of Augustus, there was an increasing inequality in the face of the law; only plebeians could be sent to work in the mines (a delayed death penalty, since few survived that harsh regime). By the second century (the era, remember, of the ‘good’ emperors, the time in all history when Gibbon said it was happiest to be alive) the citizen body (civites) and non-citizen subjects (peregrini) had been sorted into an upper order (honestiores) and a lower (humiliores), who were awarded different penalties because of their social status. So for a particular crime, the honestior might receive a fine or banishment, but the humilior would be crucified. The honestiores comprised senators, equestrians and their families, local decurions and anyone who was a mate of the emperor. The humiliores were every other free person; slaves were ‘thinking tools’ to use Cato the Elder’s chilling phrase and could legally be killed by their master (at least in theory) and were routinely tortured for evidence in legal cases, even when only witnesses; other evidence from them was assumed to be a lie.

In the later empire, we do see evidence of people absenting themselves from imperial control. This is notable particularly in Gaul and Spain, where bacaudae (sometimes bagaudae) are known in the third to fifth centuries. They were a heterogeneous mix of thieves, army deserters, runaway slaves, people who refused to be subject to the Diocletian-era laws regarding proto-serf coloni. Others may equally have been small-time farmers and minor landowners who had fallen into an underclass.

To what extent they were organised is hard to see. The play Querolus, dating to the fifth century, has a figure who doesn’t like paying taxes, and it is suggested by his family spirit (lars familiaris) he join the ‘free men of the Loire’: ‘In that place people live by the law of nations… capital sentences are issued from an oak tree and written on bones… there all is permitted’. This sounds quite like the hundred courts of the middle ages, where local peasants met by a tree known to all; many English hundreds (subdivisions of counties) were named after trees. The Loire was in the mid-400s the border between Roman Gaul (administered by the Visigoths under a treaty (foedus)) and northern Gaul (a patchwork of local lordships); so a local near-anarchist community might thrive where nobody was quite sure who ran things; think more of Syria today. Had these various commanders had Jeeps with machine-guns  mounted on them, nobody could tell the difference. No doubt there were some Germanic people in the mix too.

In AD415/18, the Romans under Constantius III arranged the foedus mentioned above with the Visigoths under their king Wallia. Under that, the local Visigothic commander was paid a third of the tax assessment of each landowner in the area, and the rest was collected for the emperor. The local Gothic leader then accepted liability for local defence. It must have become clear to local payers that if all protection could be bought on a third of the taxes, what were the other two-thirds for? This process has been described in detail in Walter Goffart’s Barbarians and Romans, A.D. 418-584: The Techniques of Accommodation (Princeton University Press, 1997), where he famously described the treaty as ‘a good idea that got slightly out of hand’.

Tax liability and weak enforcement led to many simply abandoning land they had been allocated or which they had been tied too. There is a term agri deserti, which suggests empty land, but may just mean land for which nobody admitted tax liability; St Patrick however landed somewhere in the west of Britain (Devon or Cornwall, perhaps) and talks of walking for many days before he encountered anyone.

Despite the large body of law and a large array of courts, nothing ultimately mattered, as it was held in the third century by the jurist Ulpian that ‘whatever the emperor says is law’(Domitii Ulpiani fragmenta). Emperors held so many overlapping powers from different legal principles that it wasn’t worth disentangling them. With so little enforcement, the powerful could do anything they wanted anyway.

Local possessores lorded it over courts and, since they ran private armies, often of slaves, could seize anyone’s land and livelihood. The holding of multi-generational feuds, similar to the vendettas of modern mafiosi, were beyond the ability of an honest man to cure. Nor did the arrival of Christianity as a source of power in the fourth century improve things. It just created a new means to power: being a bishop.

Early bishops were elected by their parishioners, and Sidonius in a letter tells of the election at Bourges that he supervised, where the congregation was offered a big bribe to elect one man, but then defied him and elected a man of God (Epistulae 7, various letters). Whilst the bishop didn’t own things, he did control them, and could cream off money and goods, taking the usufruct of lands he controlled.  Although bishops were not allowed to marry, many were already married with children before they became bishops. This was true of Sidonius, who had been Urban Prefect of Rome before suddenly being made a bishop. St Ambrose is similar, having been the provincial governor based in Milan before being made bishop there by acclamation of local supporters, presumably his clients. Constantine made bishops judges, which may have speeded up the court system, but probably failed to make it more honest.

The fifth century author Priscus describes (fragment 6) meeting a man who had suffered in this way; here ‘Scythian’ means ‘Hun’ or ‘hunnish’:

As I waited and walked up and down in front of the enclosure which surrounded the house, a man, whom from his Scythian dress I took for a barbarian, came up and addressed me in Greek, with the word Xaire, "Hail!" I was surprised at a Scythian speaking Greek. … Having returned his salutation, I asked him who he was and whence he had come into a foreign land and adopted Scythian life. When he asked me why I wanted to know, I told him that his Hellenic speech had prompted my curiosity. Then he smiled and said that he was born a Greek and had gone as a merchant to Viminacium [capital of Moesia Superior, destroyed by Attila in AD441], on the Danube, where he had stayed a long time, and married a very rich wife. … He considered his new life among the Scythians better than his old life among the Romans, and the reasons he gave were as follows: ... ‘the condition of the subjects in time of peace is far more grievous than the evils of war, for the exaction of the taxes is very severe, and unprincipled men inflict injuries on others, because the laws are practically not valid against all classes. A transgressor who belongs to the wealthy classes is not punished for his injustice, while a poor man, who does not understand business, undergoes the legal penalty, that is if he does not depart this life before the trial, so long is the course of lawsuits protracted, and so much money is expended on them. The climax of the misery is to have to pay in order to obtain justice. For no one will give a court to the injured man unless he pay a sum of money to the judge and the judge's clerks’.

This piece by Priscus, from the 440s AD, sums up the massive quandary Rome faced. It had become so corrupt that people preferred to live under ‘barbarian’ rule than remain Roman.