Law in the Provinces: The Trials of Jesus and Paul

In our final session, we will reflect on law in the pronvinces by looking at two of the most famous trials of the ancient world. The trials of Jesus of Nazareth and Paul (Saul) of Tarsus are significant events related in the New Testament that, regardless of their theological import, reflect the power dynamics of Roman authority in the provinces. Judea had initially been ruled by client kings once under Roman sway, and Herod the Great (ruled 34-4 BCE) was from the Roman perspective a perfectly successful one. He made massive infrastructural improvements within his realm, was a visible friend of Rome in the region, and ruled his people with a firm hand. He built the first real port city in the region, which he dutifully named Caesarea Maritima, a Greco-Roman kind of place with an artificial harbor where the Romans could feel very comfortable in an otherwise bewildering county. After Herod’s death, however, it became apparent that there was no suitable successor, so eventually Judea and Jerusalem fell under direct Roman rule in 6 CE.  This is why stories of Jesus’ birth involve Herod the Great, yet his trial as an adult was held under a Roman official.

Both trials reveal the interaction between two jurisdictions: the “Temple State” under Jewish law, where the high priest and members of the Sanhedrin or council in Jerusalem have their say, and the Roman provincial authority, ruling from Caesarea and only intervening in matters that pertain directly to Roman interests, such as tax gathering, keeping the peace, and not challenging Roman authority or those invested with it. We will look carefully at the gospel narratives of the trial of Jesus to see, despite their differences in detail, what kind of dynamic we see in the relationship between the two jurisdictions and what it tells us of the Roman legal foothold so far from Rome. Jesus was not a Roman citizen and was not treated as such, as the crucifixion alone tells us. But Paul of Tarsus did claim Roman citizenship, so his trial, occurring under different circumstances, tells us something different about how one could be indicted under Jewish law yet claim a Roman’s defense.

Assignment for 12/1

Read the extracts from the 4 canonical gospels and see what the different narrative accounts seem to highlight in relation to the trial of Jesus. Read also the account in Acts of Paul’s trial, and how he very effectively mounts a defense of himself, unlike Jesus. What is the significance of this difference between the two trials in terms of the religious tradition?

Group assignments: to make this easier, each team can take one of the documents in question to see what is distinctive or interesting about it in relation to the others.

Aeneas: The Trial of Paul

Romulus: Mark

Remus: Luke

Numa: Matthew

Servius: John

Delict and Civil Procedure

This week we will continue reading the Roman jurists on matters of private law (in areas we would typically think of as tort law in the Common Law tradition), specifically with respect to personal injury, property damage and theft (which is not a matter of criminal law in Rome, surprisingly enough). On Monday we’ll look at the Lex Aquilia, a plebiscite of 286 BCE that long shaped the nature of Roman thinking on “damage unlawfully inflicted upon another” or damnum iniuria datum in the Latin phrase. Part of the complexity of this kind of litigation is revealed in how many of the case points involve incidents with slaves, who are both property (that can be damaged and therefore for which you can seek compensation) and people (who have agency and can do things that lead to litigation). This can lead to some pretty horrific discussions, like this:

…if someone castrates your slave boy and thus increases his value, Vivanus writes that the Lex Aquilia should not apply, but that you should instead bring the action for insult or sue under the edict of the Aediles for four times his value (p. 86).

A castrated slave or eunuch could be considered a luxury item (as they could only be imported from the east, not made), but clearly in this could also be seen as an act of aggression, not a favor. Things like this teach us how slavery, apart from its terribly obvious moral repugnance, also brought along with it legal headaches that kept the Roman jurists busy for centuries.

So get ready to read some weird worst-case scenarios.

General Assignment: 11/22 & 11/29

For background, read chapters 11 and 18 (pp. 111-119 and 187-194) from Roman Law and the Legal World of the Romans. This will set up the nature of civil procedure and delict.  For Monday 11/22, read the chapter on the Lex Aquilia in Justinian, The Digest of Roman Law (p. 71-102).  For Monday 11/29, pp. 103-150 on theft. As you can tell, part of this course is about how to skim through such discussions to find points of relevance and interest. Legal literacy means developing the knack for scanning long legal texts to get at the heart of things. So the group questions for these sessions require you to see if you can apply the law.

Group questions on the Lex Aquilia for 11/22.

Group questions on the law of theft for 11/29.

The Leges Juliae and Legislating Morality: A look at the legal problem of adultery

Last week we talked about the legitimation crisis created by the coming of the emperor and his rule, and how the fiction of a “restored republic” hid the reality of a monarchy taking shape. We also discussed the kinds of legal fiction that legitimated the rule of the emperors in the terms of Republican legality.  But now I want to return to the reign of Augustus to discuss the moral legislation he attempted to impose on the Romans (in particular the upper classes), in hopes of “renewing” or engineering a healthier society. This topic was interestingly raised by Tacitus in a passage that reviews the legal history up to that time, and is worth reading. We’ll talk about this extraordinary legislation and what it shows about Augustus’ “conservative revolution,” i.e. a “restoration” of the Roman family by means of a state intervention that was highly unusual, given the history of Roman patriarchal right and the general lack of state interest in marriage under Roman law.  We’ll also delve into the complicated ramifications of the adultery laws, which expose the vested interests that intersect in the context of marriage and its dissolution. Consider the status of the woman: who should have the greater claim upon her, her father or her husband? What if she committed adultery before she married her second husband? Can she commit adultery if her husband is deceased? What happens if her husband turns a blind eye, or worse yet, even condones the adultery?

The readings for your group discussion this week will give you a taste of the reasoning of Roman jurists, who had to think out many ramifications of this adultery legislation over time. This is your first chance to play Roman lawyer–dig in!

General Assignment for11/15 and 17

Read Tacitus on laws, and the short information on the Julian marriage laws.

Group Assignments

Read all the texts on the workbook, and prepare a discussion for the texts specific to your group’s page.

Unit III: Law in the Principate

Now we will complete our last unit of the course, which deals with law under the period of the Roman Emperors.

So far, we have traced some key legal ideas from the Regal and Republican periods, which really cover quite a long span of time (over seven centuries, according to tradition). These have been matters of criminal law to a large extent, though we have touched upon some matters of family law. We have seen how the political and the legal are very much intertwined in the Republic, and how the Republican order begins to fall apart in a state of severe crisis in the first century BCE.

Now we transition to a new period, when the Romans will come under the rule of a monarchy that dare not speak its name.  So a first obvious question concerns the constitutional position of the emperor: how can this position be justified in the face of centuries of republican political principles that were expressly articulated against the notion of monarchy? And how did the transition come about in the first place? This is worth some discussion, since one of the curious features of the early principate is the ostensible continuity with republican offices and procedures. There will still be consuls, the senate, and tribunes, and yet Augustus the “first citizen” will actually be calling the shots. How was this justified in legal terms?

General Assignments for 11/8-10

For this week’s reading, we have a lot of scattered bits of text, but all of them are important for different reasons. For some background on the Second Triumvirate, read their edict on the proscriptions to see what the legal justification for this act of political murder looks like in fine print. To understand something of Augustus’ self presentation to the Roman people concerning his authority and achievements, read these extracts of the Res Gestae, an account he left of his reign at the end of his life.

Also, read the short extracts from Roman historians concerning the reign of Augustus from the works of Velleius Paterculus, Tacitus, and Cassius Dio. See how the tone shifts between the historians, and how they analyze the coming of the new imperial order. Read also the text of the lex de imperio, which is from the time of Vespasian but that reveals something very interesting about the formal investiture of the emperor’s power. Lastly, read this short extract from Tacitus concerning Augustus’ legislation, and we’ll talk more about Roman family law and the moral legislation of the Augustan era.

Group Assignments

Aeneas: How does the preamble to the Edict of the Triumvirs seek to justify the dire measures it is about to enact against Roman citizens? What are the edict’s most striking provisions?

Remus: In the Res Gestae, why does Augustus mention honors he refused along with honors he was awarded? What language in the text is most telling in reference to his squeamishness about declaring his absolute power in Rome?

Romulus:  In the extracts on the Reign of Augustus, what is the difference between the account of Velleius Paterculus and that of Tacitus? What might account for the difference?

Numa: In the extracts on the Reign of Augustus, read Cassius Dio’s discussion on the nature of the Principate. What is extraordinary or interesting about the titles of the emperor? Which title is conspicuously lacking?

Servius: Looking at the Lex de imperio Vespasiani, what is this law effectively trying to establish in reference to the Roman constitution? What would someone like Cicero have made of this law?

Cicero: Natural Law and a Vision of Republican Order

In the previous weeks, we have mostly focused on Cicero the advocate and politician as he upholds the law either in the context of Roman courts or as Consul.  Of course, he doesn’t “practice” law in our modern professional sense so much as act as an orator for a cause, which is the more Roman way of thinking of the role of the advocate. But there is another side to Cicero that we see in his philosophical dialogues, and that is of a man of ideas.  Cicero wrote a number of dialogues at the latter stage in his life when he was no longer able to be as active in politics, and these are interesting for a variety of reasons. Overall in these later dialogues, he was attempting to create a kind of philosophical discourse in Latin that would make Greek philosophical discussions more palatable to the Romans, but he was certainly not just ventriloquizing Greek schools.  Particularly in the works De re publica (On the Republic) and De legibus (On Laws), despite the obvious Platonic precedents for both texts, Cicero writes very much as a Roman, and in the latter text, even casts himself among the interlocutors. While both works are incomplete, enough survives to give us ample evidence for his thinking in the late 50s BCE, as he was having to distance himself from active politics.

The dialogue On Laws, even in its incomplete state, shows us the kind of idealistic reflections Cicero was capable of, despite his struggles with the collapsing political order in Rome. They are politically engaged, yet striving to offer rational and philosophical bases for justice, the Republican constitution, sacred laws, and the behavior of magistrates. While they contrast sharply with the political realities we have been viewing in Cicero’s trials, they are nonetheless instructive of their author’s character, whether we see the works as futile exercises or calls for reform. In particular, Cicero’s discussion of natural law is an influential and fascinating departure from a mere celebration of the Roman legal tradition. That, and Cicero’s vision of what the laws of a Roman polity should look like, are really the topics of discussion for this week.

General Assignment for 11/1 and 11/3. Read Cicero’s dialogue On the Laws in Niall Rudd’s translation Cicero: The Republic and the Laws, pp. 97-169.  Focus especially on the sections discussing natural law as a basis for thinking about justice in advance of the particular laws proposed in books 2 and 3.

One fruitful exercise in terms of the reception of these ideas is to reflect on natural law principles we can find in documents from the American founding, such as the Declaration of Independence.

Group assignments:

Aeneas: Does the opening discussion of this dialogue have any relation to the main topic of the laws? Why would Marius’ oak be worth thinking about in relation to the nature of justice?

Remus: Why on p. 103 is law discussed as a force of nature? Is this what we mean by natural laws? What is the advantage of using this as a way of structuring a discussion of the laws, rather than an appeal to Roman tradition and the authority of precedent?

Romulus: On p. 107, Marcus states “we are born for justice, and that what is just is based, not on opinion, but on nature.”  What argue for justice in this way? In other words, what is wrong with using majority opinion as a basis for determining justice, and consequently, the laws?

Numa: According to this line of reasoning, what does it mean to live according to nature? How does Cicero’s understanding of this notion differ from how the “state of nature” is often invoked today?

Servius: How dependent on theology does this natural law argument seem to be? Would it be possible to conceive of natural law without reference to the gods or God?

All Groups: Read the Declaration of Independence in relation to what you are reading in On the Laws, and see if you can find where the principles of natural law come into play, and where matters of English law and precedent seem to be at work. Why at such an historic juncture do you think natural law principles were useful?

Cicero loses a murder trial: Pro Milone

In our last session, we saw Cicero bravely facing down a widespread and insidious conspiracy as consul in 63 BCE. Using his oratorical skills and intelligence network, he managed to flush out many of the traitors and convince them to leave Rome, thus making it easier to deal with them. He forged a united front in the Senate, then informed the people in his contiones of the state of affairs. We saw how he took action to present irrefutable evidence of collusion between certain Roman conspirators and envoys of the Allobroges, a unhappy tribe who had sent representation to Rome for redress.  Cicero carefully deployed his evidence to force confessions from these Roman conspirators. Lastly, we saw him preside over the Senate’s debate on what to do with these key conspirators now in their custody, and, thanks to the fierce intervention of Cato, the decision was to sentence them to death rather than life imprisonment. Cicero had the sentence carried out straightaway. That might seem within the powers of a Consul acting with an “ultimate decree of the Senate” (SCU) behind him, but it turns out, not everyone agreed.

Like any successful man in Rome, Cicero had his enemies. Despite being celebrated as a national hero, a few years later Cicero found himself in deep trouble on account of a controversial man known as Publius Clodius Pulcher. Although he was a patrician from the famous clan of the Claudii, Clodius had himself adopted into a plebeian gens in order to run for tribune,  and in many ways he sought to radicalize further the power of the tribunate. (Clodius is the plebeian pronunciation of the au diphthong in Latin; technically he was to change his name in adoption, but he just changed the pronunciation of his name, making a farce of the whole legal act.) He was a popularis politician with ties to greater men, notably Julius Caesar, and he lost no time in making mischief for Cicero when elected tribune for 58 BCE. He passed a law punishing with exile any Roman who had another Roman citizen executed without trial. In spite of his service to Rome in 63 BCE, Cicero was isolated and lacked the support of more powerful men, like Pompey the Great. He was thus forced into exile and went to Greece, while Clodius had his houses destroyed, and built a temple to Libertas on the site of his Palatine home.

A year later, Cicero was recalled from exile by the Senate, at the instigation of Titus Annius Milo, who was an enemy of Clodius. The two men had gangs of retainers who regularly clashed violently in Rome, and by chance the two men and their retainers intersected with each other 12 miles outside of Rome at Bovillae January 18, 52 BCE. A scuffle ensued, in which Clodius was killed. Cicero then offered to defend his friend Milo, and the text we have is the orator’s defense of a man who, by all appearances, was guilty of killing an influential if rather disreputable figure. However, unlike other speeches where we have to take Cicero at his word, we have a commentary on the Pro Milone by a scholar named Asconius Pedianus, which is included in your book (pp. 172-182). This allows us to hear a version of the events somewhat different from those in Cicero’s speech, which was written in this version after the trial and exile of Milo.

General Assignment for 10/25 and 10/27: Read Asconius Pedianus’ account of the trial in Cicero: Defence Speeches, pp. 172-182. Then read Cicero’s defense speech, pp. 183-223.

Group Assignments:

Aeneas: From Asconius’ account on pp. 174-175, how did Clodius’ corpse become a kind of prop for political theater in Rome? Why was this extraordinary, even for the times? What other incidents does it call to mind?

Remus: From Asconius’ account on p. 180, what was Cicero’s strategy for the defense, and how did it differ from the facts of the case? Why do you think he chose this strategy?

Romulus:  In Cicero’s exordium on p. 183 and following, how does he try to make use of the unusual circumstances of the trial? How does he try to secure the goodwill of the jury?

Numa: How and why does Cicero invoke natural law on p. 186? Why might this help his defense case for Milo?

Servius: On p. 189, why does Cicero mention the Appian Way (where the murder occurred) in relation to the case? What had the prosecution meant to do with this association, and how does Cicero try to subvert that?

Cicero the Consul and the Catilinarian Conspiracy

So far, we have seen the young Cicero as defense advocate and a somewhat older Cicero as prosecutor. Those two cases showed his brilliance at mounting an effective case right at a time when he would seem to be at a great disadvantage.  This week we see Cicero as a mature man at the height of his political career, which for any ambitious Roman would be the consulship, to which he was elected for the year 63 BCE when he was 43 years old. During his year of office, an extraordinary attempt at a coup d’état was undertaken by Lucius Sergius Catilina, who unlike Cicero had failed to be elected consul and seemed eager to simply seize political power by force. He amassed a kind of coalition of the unsavory and disgruntled, and plotted assassination and general mayhem in a manner that was shocking if unimaginative.

Cicero found himself in a position where he needed to act swiftly to expose the conspiracy, flush out the conspirators, galvanize the support of loyal senators against it, and inform the people of the extent and nature of the crisis. This he did with recourse to his formidable oratory, and the resulting Catlinarian Orations are considered masterpieces of political rhetoric.  In them, we see the consul fulfilling his duty by conferring in the Senate, but also by informing the people in an assembly (contio) of what is going on.  Moreover, his first oration is addressed directly to Catiline himself, and reaches a hight pitch of moral indignation as he denounces the man who has the shameless effrontery to show his face in the Senate while he was planning to burn Rome to the ground. Cicero is clearly convinced that his heroic action in this crisis is worthy of recognition and even glory—”I ask you for nothing whatsoever,” he tells the Senate at the conclusion of it, “except that you hold on to the memory of this moment and of my whole consulship” (203).  He would hold on to this memory himself for the rest of his life as a crowning achievement.

General Assignment for 10/18: read the introduction (pp. 134-156) and the first and second Catilinarian orations (pp. 157-180) in Cicero: Political Speeches. You may also find it worthwhile to read the speech of Catiline as given in the historian Sallust’s version of these events. The text of that he here.

For 10/20: Read the third and fourth orations (pp. 180-203).

Group Discussion Questions

Aeneas: What does Cicero accomplish in his first oration by imagining Rome addressing him personally on pp. 166-167? How does this reveal his predicament and his way of getting out of it?

Remus: In his first speech to the people, Cicero’s opening paragraph on p. 170 is apparently doing some damage control. What accusation does it appear he is trying to fend off? 

Romulus:  How does Cicero use accusations about sex in his indictment of Catiline and his followers, especially on pp. 172-173? How is it connected to other aspects of their criminality? 

Numa: On pp. 188-189, how does Cicero suggest that the saving of Rome occurred through divine intervention? How does he craft this narrative to make it seem very timely? 

Servius: On pp. 196-199, How does Cicero flip the script of what constitutes cruelty and compassion with regard to the conspirators’ punishment? Why does this serve his interest? 

Cicero for the Prosecution: Against Verres

Last week, we saw the 26-year-old Cicero rose to prominence by giving an effective legal defense to a man many had given up for lost in the wake of all the political violence surrounding Sulla’s proscriptions.  By successfully defending Sextus Roscius, Cicero made a stand not just for an individual defendant, but for the rule of law itself. This week, we see him take on the role of prosecutor in a case heard in the Extortion Court, a case that would launch him into politics as a formidable orator and principled politician.

Cicero had begun his official political career with a quaestorship in 75 BCE, where he served in western Sicily and made many contacts. He entered the Roman Senate after fulfilling his office, but as a novus homo or new man, he was hardly much of a player. But he was respected by the Sicilians for his fair dealing, which is why they appealed to him when, during the years 73-71 BCE, Gaius Verres ran rampant in the province as its Roman governor. Having attained the rank of praetor, Verres outranked Cicero in the cursus honorum, and had shown himself to be agile and ruthless by switching sides from Marius to Sulla in the earlier civil strife. In 80-79 BCE, Verres had served as a legate under Gnaeus Cornelius Dolabella in the eastern provinces of Cilicia and Asia, and joined with the governor in the plundering of those provinces. But in 78, when Dolabella was on trial, Verres gave testimony against him and thus escaped prosecution. His subsequent behavior in Sicily was so shocking that, as Cicero assumed, its exposure should suffice to turn the Roman Senate against Verres, whose position rested more with powerful supporters rather than family influence of his own. And there was an additional incentive for the prosecution: by the odd (to us) rules of Roman political and judicial order, a successful prosecutor would attain the rank of the defendant, meaning Cicero would be considered a man of praetorian rank in the Senate, a jump up for one still considered young and without much personal influence.

This case is interesting for a number of reasons.

  • First, it is a look into the accountability of provincial governors to the Roman people, who have a vested interest in maintaining good relations with their allies; hence the need for good governors who keep order, stimulate business and assist the collection of fair taxation, maintain the military on Rome’s various frontiers and insure the rights of Roman citizens in their jurisdiction. Verres appears to have failed at all of this, and much of Cicero’s orations is made up of detailed evidence of these failures that he personally collected.
  • Second, this is a moment when a judicial reform is in the air, which would change the composition of the Extortion Court to include juries of equites instead of senators. Once again, Cicero finds a way to make the jury very keenly aware of what is at stake in their conduct and verdict, since, as a senatorial jury, their mismanagement of the case could jeopardize their order’s standing in the court system.
  • Third, it appears Verres’ defense team was hoping to game the procedure so that this trial would stretch over into 69 BCE, by which time the turnover in civil administration would swing their way in terms of greater influence on the outcome of the trial. Cicero had to find a way to accelerate his prosecution to avoid this, and he did just that, as we’ll see.
  • Fourth, Cicero’s opponent was Quintus Hortensius Hortalus, reputedly the greatest orator and advocate of the time. It would be no easy task to get the better of so great a speaker, even given Verres’ patent greed and corruption. Hortensius’ skill coupled with the influence of the powerful Metelli family meant that odds were against the prosecution from the get go. This made Cicero’s victory all the more stunning.

So get ready for Cicero the prosecutor, who will come out swinging against a man who would live the rest of his life in exile on account of this effective intervention on behalf of the Sicilians. After this success in the court and the publication of these orations, Cicero would be recognized as Rome’s greatest living court orator. Next week we will see him take action as Consul, the highest office in Rome, when he is at the pinnacle of his political career.

General Assignment:

Monday 10/11:Read the introduction and first oration Against Verres, pp. 3-29 in Cicero: Political Speeches. 

Wednesday 10/13: Read II.5, skimming in particular for those parts that would most outrage a Roman jury: failure to maintain the Roman military in the province, and the disregard or violation of the rights of Roman citizens. We will break up this long text into sections for your group discussion, but try to get a sense of the whole. Make sure to read the final sections 179-188 carefully.

Group Discussion Questions for 10/13

Aeneas: How does Cicero attack the defense’s line of argument that Verres, though maybe not a good man, is at least an effective general and cannot be removed for that reason? See sections 1-8.

Remus: What is Cicero’s point about the incident involving slaves at Triocola (sections 10-14)?  How does this reflect badly on Verres’ administration in Sicily?

Romulus:  Look at sections 20-22 on page 37-38. What are all the things that Cicero says he will not talk about? Why is it that he won’t talk about them? And yet, isn’t he talking about them? What seems to be his strategy here in couching his argument in this way?

Numa: How does Cicero address Verres’ personal conduct in Sicily in sections 25-32? What measure of masculine behavior does he use to size up Verres? 

Servius: What is said about Verres’ treatment of Roman citizens in sections 140-152? Why do you think Cicero chose to put this part so late in his speech?

ALL: How does Cicero’s invocation of the gods in sections 179-188 serve as a suitable climax to this prosecution? How does it explain Verres’ criminal conduct? 

Unit II: The Roman Advocate and the Career of Cicero

This week we move on to a new 5-week unit that will help us to explore the dire circumstances of the late Republic through the career of one of Rome’s greatest advocates: Marcus Tullius Cicero (106-43 BCE). Unlike the stories of legal cases and crimes that we have seen in Livy’s History of Rome, the works of Cicero show us contemporary evidence of real cases that he argued in Roman courts, though the speeches passed through a process of revision before being “published” in written form for posterity.   Cicero’s works also include philosophical and other writings that explore the significance of the law from a variety of perspectives, such that between his legal and political speeches and his theoretical writings, Cicero remains a major figure in the study of Roman law in the late Republic.

We will trace his rise (and ultimate fall) by dedicating one week to an important case in each stage of his career.

  • Week 6: The Murder Trial of Sextus Roscius Amerinus, which brought him to early fame as a defense advocate (80 BCE).
  • Week 7: The Extortion Trial of Gaius Verres (70 BCE), where he showed his strength as a prosecutor of a corrupt public official and gained political prominence.
  • Week 8: Cicero’s vigorous actions as Consul against the Catilinarian conspiracy (63 BCE), which show him as the chief executive and defender of public order in action.
  • Week 9: The Defense of Milo (52 BCE), which gives us insight into the increasingly violent and chaotic times when men like Cicero are unable to make a difference—in fact, he lost the case, despite the speech itself, which is considered a rhetorical masterpiece.
  • Week 10: The philosophical treatise De Legibus (begun in the late 50s BCE), which like De re publica, is a dialogue written at a time when Cicero was trying to articulate principles of law and government amidst the serious chaos all around. In this dialogue he formulates principles of Natural Law that have remained very influential and are worth our consideration for the role they play in the history of natural law theory.

So for this week, we will watch the young advocate in action as he attempts to defend a man unjustly accused in the wake of an initial period of civil war and sweeping change instituted by the dictator Lucius Cornelius Sulla (138-78 BCE).  Sulla effected major reforms of the Roman republican government and court system, and all this is important background to the trial. Monday’s lecture will give the important historical details, but you might benefit from reading the introduction (pp. 3-8) in Cicero: Defence Speeches.  Also, since we are now entering the technicalities of Roman trials, we will have to talk a bit about the standing courts (quaestiones perpetuae) that become a feature of Roman criminal law in the 2nd century BCE onward. On this, you can read pp. 195-202 in Riggsby’s Roman Law and the Legal World of the Romans for a brief overview. This speech will be our first foray into the forensic rhetoric of Rome, so I will also be talking about Roman oratory and how such speeches are organized.

General Assignment for Monday 10/4 and Wednesday 10/6

  • read Cicero’s speech Pro Roscio Amerino (pp. 9-58) in Cicero: Defence Speeches (tr. D. H. Berry), which we will discuss over the two sessions.
  • read pp. 195-202 in Riggsby’s Roman Law and the Legal World of the Romans.

Group Assignments (references are to sections in the speech marked with [no.])

  • Aeneas: What does Riggsby say about the Roman sense of “private” vs “public” cases, and why does that complicate our picture about the prosecution of crime? What kinds of cases fell into the “public” category?
  • Remus: REFUTATION 1 [sections 37-82]: How does the uniquely horrid crime of parricide actually play favorably into Cicero’s defense? What kinds of prejudices and assumptions come with it that can help Cicero to get an acquittal?
  • Romulus: REFUTATION 2 [sections 83-123]: Why is the cui bono principle so important to this part of Cicero’s defense? How does he deploy it? How much is based on the facts?
  • Numa: REFUTATION 3 [sections 124-142]: How does Cicero attack Chrysagonus while steering clear of Sulla in his counter-accusations? Think particularly of the jurors and their prejudices.
  • Servius: PERORATION [sections 143-154]: How does Cicero use direct address to specific persons as a way of concluding his defense? Why is this effective by way of closing argument?

Senate Decrees vs. Plebiscites: Class Conflict and the Law in the Roman Republic

This week we will look at two sides of the legislative coin: the decrees of the Senate (Senatus consulta) and the laws passed by the Plebs (plebis scita).  During the Republic, as we’ve said, the Senate was not like our Senates in the US in that it was not a representative legislative body, but rather an advisory “council of elders” made up of men previously elected to a magistracy (consul, praetor, aedile, or quaestor).  It was an honorary body in many ways, and membership in it was extremely prestigious. But being a member did not mean that you wielded the kind of duly vested public authority (imperium) that the elected magistrates of that year possessed. Fundamentally, its power was a consensus of opinion on the part of the senior statesmen, generals, judges, and high priests of Rome.

The Senate passed decrees, but the authority the decrees was problematic. A Senate decree is not the same as a statutory law (lex) as passed by the voting assemblies in Rome. No doubt, some Senators imagined it should be as powerful as a law; but in form, it wasn’t, since the People of Rome did not pass it, only the Senators. We will see where this ambiguity becomes a problem later on in the Republic. However, a Senate decree is a powerful directive to the magistrates in power for the year, men who are just like their colleagues in the Senate and who share common political interests with them. So one way to think of the binding nature on the magistrates is to consider a decree of the Senate “advice that it would be foolish to neglect.” In other words, the decree has a powerful normative force, even if it legally isn’t quite on the same level as the acts of the assemblies (in later imperial times, however, the Senate will come to have a legislative function largely for its convenience—but this is much later on after the Republic has fallen).

We can see the powerful normative and moral force of a Senate decree when we look to a notorious incident from around 186 BCE, the incursion of Bacchic worship into Roman Italy. Bacchus, or the Greek god Dionysus, was a major divinity in Greece; the Dionysian festivals of Athens were the occasions when the great tragedies and comedies were performed. But this cult of the god of wine came into Italy in a private form, an initiation cult known as a “mystery religion.” Much lurid detail is alleged of this cult—and it is very hard to get to the truth of things, much as with the Salem Witch Trials. Whatever the truth of the cult, it is clear that it produced a moral panic among the upper classes of Rome. The Senate reacted vigorously in support of the consuls, and passed a decree that has come down to us thanks to its production in bronze for public posting.

General Assignment for Monday 9/27

  1. Read the text of the Senate Decree on the Bacchanalia, and notice its full legal structure and rhetoric.
  2. Read Livy’s account of the Bacchic crisis, with especial attention to the details of the investigation, the Senate’s actions, and the punishments meted out.

Group Assignments

Aeneas: Get ready to discuss the Roman characterization of the Bacchus cult. Why is it that they are so upset about it? What key words are used to describe it? What kinds of people does it seem to attract?

Romulus: How does the consul take action to investigate the mysterious goings on? What key testimony helps them to get a fuller picture of the situation? What problems might there be with the testimony?

Remus: Discuss the consul’s speech to the Roman people (39.15 and following). What key values does it reveal? What is his attitude to religion?

Numa: Discuss the final prosecution of the Bacchic adherents and the penalties. Do these seem to fit with the general characterization the Senate and magistrates make of the danger? What particular punishments do you see as problematic or interesting?

For Wednesday 9/29

But what of the people? The Plebs of Rome, as we have seen, had its own representatives in the Tribunes of the Plebs. They could convene the Council of the Plebs and refer legislation to it, which produced a plebis scitum or plebiscite that was, particularly after the Lex Hortensia of 287 BCE, binding on both patricians and plebeians and not subject to senatorial veto or obstruction. Under the tribunates of the Gracchi brothers, this legislative mechanism was used to push through radical land reform that effectively transferred wealth from the aristocracy (more specifically, rich landowners among the senators who had acquired a lot of public land and treated it as private estates) to the poorer citizens of Rome. It wasn’t just land reform, but also the political methods of the Gracchi that caused this political maneuvering to erupt in violence, spelling the end of certain norms of political behavior, a situation that would later spiral into all out civil war.

General Assignment:

  1. Read this short reading on the agrarian reforms and the Gracchi. This is from the excellent textbook, The Romans: From Village to Empire (second edition), which I highly recommend if you want a systematic grasp of Roman history.
  2. Read excerpts from this agrarian law of 111 BCE, which comes in the wake of the radical legislation of the Gracchi. Note that it is FULL of legislative boilerplate–i.e., long repetitive phrases that specify or restrict the scope of the legislation. I have highlighted the key elements that you can scan to understand where this law is going. There’s an art to reading legislation quickly (and plenty of congressmen don’t even read what they vote on…so this might be a dying art).
  3. Read the Homestead Act of 1862 and be prepared to think about how agrarian legislation played a role in American politics.

Group Assignments:

Servius: What is significant about the date of the Homestead Act, and what does it tell us about the politics of land provisions at this time? What details in the Act make this political import clear? How is the land’s use stipulated by the law, and what do you think that is trying to circumvent?