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Published online by Cambridge University Press: 24 September 2012
Twenty years after its publication the present writer's Criminal Trials and Criminal Legislation under Tiberius has now been laid under attack, in general and in particular, by C. W. Chilton. He endeavours to establish the following major conclusions:
(1) That Ulpian's word ‘perduellio’ for certain offences of treason was as obsolete as ‘the clumsy ritual and barbarous punishment’.
(2) That the author of Trials and ‘Ignorance of the Law in Tacitus and Dio’ should not have rejected the clear evidence of Tacitus and Dio that suicide by a defendant would avoid the confiscation of his property.
(3) That Roman law was ‘constantly changing’ and so a jurist affords no evidence except for his own time.
The author is greatly indebted to the Editorial Committee for a number of suggestions to the considerable improvement of the article; also for placing the paper before Mr. Chilton and transmitting his comments on it. These have been embodied into a paragraph on page 93 and footnotes 13 and 14. It has thus become possible for this answer to Chilton to incorporate his replication and a rejoinder thereto, and so, it may be hoped, to conclude the controversy.
1 American Philological Association Monograph VI (Middletown, 1935), hereinafter cited as Trials.
2 ‘The Roman Law of Treason under the Early Principate,’ JRS XLV (1955), 73–81.
3 TAPA 64 (1933), 18–27, hereafter cited as Ignorance.
4 Dig. 48.4.11, ‘is, qui in reatu decedit, integri status decedit; extinguitur enim crimen mortalitate. nisi forte quis maiestatis reus fuit: nam hoc crimine nisi a successoribus purgetur, hereditas fisco vindicatur. plane non quisque legis Iuliae maiestatis reus est, in eadem condicione est, sed qui perduellionis reus est, hostili animo adversus rem publicam vel principem animatus: ceterum si quis ex alia causa legis Iuliae maiestatis reus sit, morte crimine liberatur.’
5 Trials 58 ff.
6 cf. Lèse Majesté under the Roman Emperors, in preparation and near completion.
7 ‘The Tacitean Account of a Neronian Trial,’ in Studies Presented to David Moore Robinson, St. Louis, 1953, II, 711–18.
8 Eng. Hist. Rev. LX (1945), 136–176, esp. 153-162.
9 Tac., Ann. 13, 19 ff.; TAPA 86 (1955), 199 ff.
10 Tac., Ann. 15, 73; TAPA 86 (1955), 209.
11 Tac., Hist. 2, 10; Pliny, Ep. 9, 13, 7; TAPA 83 (1952), 283.
12 Chilton continues: ‘That is my whole contention, and I still believe it to be a valid reading of the evidence. Even “Bracton on Kingship” does not alter my belief. As a statement of the Emperor's position vis-a-vis the law as a whole it is admirable, but I notice that on p. 160, l. 9, of his article the author restricts his remarks to “good” emperors. (Rogers in referring to this passage omits this significant qualification.)’ But Schulz is speaking, not of good and bad emperors, but of classical law and Justinianic law. If he can be thought to have said or implied anything about good and bad emperors, it would seem to be that all the emperors before Justinian were good, and that he was the first bad one.
13 Grierson, Philip, ‘The Roman law of counterfeiting,’ in Essays in Roman Coinage Presented to Harold Mattingly, Oxford, 1956, 243Google Scholar, with citation of Mommsen, Strafr., 1037–1044.
14 The last clause has been added in deference to Chilton's protest: ‘To ascribe to me a belief that “the Empire was not a rule of law” is really going too far. At the beginning of my last paragraph (p. 81) I say “Rogers is trying … to vindicate the rule of law where no such rule existed”. At the end of an article devoted entirely to treason trials I should have thought it perfectly obvious that this remark applies only and exclusively [the italics are Chilton's] to such trials. I never for one moment suggested that Roman law as a whole “did not rule”—who would ?’ Since Chilton's next following sentence had read [italics added]: ‘From the establishment of the Principate the trend of Roman criminal law, especially in the law of treason, is towards greater arbitrariness, wider discrimination between one defendant and another, and crueler and crueler punishments,’ the present writer trusts that his misunderstanding will appear venial.
Chilton allows ‘that in 99 per cent of legal actions the law was scrupulously obeyed at all times’, but not ‘in the odd 1 per cent, i.e. in trials for maiestas, where the Emperor was personally affected’. If the supposed 1 per cent of cases, in which the law was not observed, were distributed over all criminal offences, one could accept this as a margin of human error and still consider that there was a rule of law; Pliny narrates that the Senate ignored a provision of the law in trying Norbanus Licinianus for praevaricatio, and admitted into the trial utterly irrelevant testimony, Ep. 3, 9, 30, and 33. If, however, the unobservance of law occurred only ‘where the Emperor was personally affected’, as this writer does not admit, then quite obviously the Emperor would be above the law, and not, as this writer believes and considers Schulz to have proved, bound by it.
15 Note 7 above.
16 Studies in the Reign of Tiberius, Baltimore, 1943, 128 f.; Trials 62–4; ‘Two Criminal Cases Tried before Drusus Caesar,’ CPhil. 27 (1932), 75–9.
17 ‘The Death of Agrippa Postumus,’ TAPA 78 (1947), 131–9.
18 Trials 79, Chilton concurring.
19 Allen o.c. 135, note 13.
20 TAPA 83 (1952), 279–311.