1.1 Introductory Remarks: Some Notes About the Sea in Ancient Thought
The sea is everywhere in the Greek and Roman landscapes; thus, to live far from the sea was to live in relative isolation, for the sea was the main highway for ideas as well as commerce. However, human bodies are not naturally suited to the sea; therefore, challenging it by entering or crossing it entails reimagining one’s own identity and personal status in the face of the power of water. The latter is echoed in both literary and legal sources, even though the phenomena are expressed in different ways depending on the author’s agenda when writing a piece. Literary sources generally present the sea as a hostile space for humans, but the variety of literary works and the diversity of realities and events described in these pieces highlights the authors’ own views, with each focusing more prominently on some aspects.
One of the most common dichotomies is a focus on the sea as either a bridge or a boundary, which has been a recurring pattern in studies based on ancient literature.1 In these works, the sea appears as an intermediary space between the worlds of the living, the dead, and the gods, evoking an aura of mystery and uncertainty. The ancient view of the sea promoted in literature, as a point of contact between the imaginary world and everyday reality, is paralleled in other cultures that preceded and followed Rome.2 In that light, crossing the seas predicates the physiological transformation of the individual, suggesting that the subject has taken a leap of faith, risking their life by challenging the sea.3 In addition, individuals who brave the sea make themselves intruders in a world beyond their own, confronting a realm inhabited by numinous forces and therefore beyond human domination.4 As a way of appeasing this human invasion of the gods’ realm, sailors could undertake various actions, such as making a solemn vow to be paid as soon as they stood on dry land,5 performing a ritual in a temple,6 placing a votive painting or inscription in harbours or their surroundings.7
In contrast, legal sources tend to focus more on the practical challenges and effects of interacting with the sea. The latter highlights how the importance and meaning of the sea moves beyond the symbolic and utopian into the realm of the practical and tangible; for the jurist writing books about legal issues or providing advice on different matters, the sea was a problematic realm to which legal tools should be applied to avoid or repair the hazards resulting from interaction with it. Thus, it is not to these writings that we should look to construct a holistic perception of the sea in the Roman world, because their general point of view was that since for many (e.g. merchants) engaging with the sea was unavoidable, the realistic approach was to reduce the risk of harm and face the consequences of seafaring. The various dangers at sea arose from the unpredictability of weather conditions,8 the vulnerable structures of ships, the lack of navigational devices, and finally, the threat of pirate attacks. All these made a sea voyage an extremely hazardous venture and a risk to life comparable to warfare.9 However, even though jurists coincide in their understanding of the sea as a dangerous realm not governed by the civil law of the Romans, the solutions which they provided for similar problems vary from jurist to jurist and from one period to another. As legal texts were mostly devoted to providing practical solutions, and therefore the jurists’ perceptions about the nature of the sea are partly biased by that heuristic aim, the reader is sometimes forced to read between the lines.
In literary sources, the sea not only sets the scene of action, but also the mood. A lonely shore is the background for a hero’s prayerful grief,10 while the tumult of waves mirrors the unrest in his mind. In contrast, a luminous sea promises a successful voyage: for the warriors sailing home from a righteous mission, the sea is the bright and broad path ahead.11 Alternatively, the clashing waves evoke a dangerous distance between a hero’s homeland and the place where the battle took place,12 and the sea’s grey depths are where supernatural beings and forces of nature abide.13 Since the time of Homer, the sea had personified the capriciousness of gods and the inevitability of fate.14 Thus, undertaking a sea voyage meant entrusting one’s fortune to the gods and to fate.15 If the focus was placed on the survivors, then shipwrecks often presented the possibility of a change in their legal and social status.16
To the ancient mind, the sea was often seen as a sacred domain not to be violated by mortals, and drowning meant that one’s spirit remained in a place from which there was no return.17 Death by drowning, in itself unpleasant, is rendered doubly dreadful because it robs a man of the due rites of burial and the pious tending of his grave by his surviving relatives.18 Indeed, for the ancients, death at sea meant that one’s body would be eaten by fish and other beasts.19 Propertius writes the lament for Paetus, who was drowned at sea, identifying it as a new kind of death, a death the man need not have risked had he stayed on land.20
But sometimes it was unavoidable to risk one’s life at sea, as was the case for the various naval battles fought in antiquity. In these cases, those who lost their lives at sea found commemoration in the different monuments placed around the shore and the symbolism associated with some areas associated with a particular battle.21 In addition to calling the sea ‘cruel’, ‘bitter’, ‘deceitful’, and ‘treacherous’, the Roman poets often refer to its most awe-inspiring quality, that of immensity. The sea is both immensum and vastum, contrasting with the insignificance of a boat tossed upon its fickle surface.22 In law, however, the sea is first and foremost immense because a thalassocracy cannot afford to appropriate and preserve it by force. Therefore, jurists would qualify it as res nullius: it is the thing both of one person and of all people.23 As such, it is both a space in which appropriation is considered to be an act contrary to natural law and a lawless space, or a space where the civil law of the Romans is in force only up to the point where it reaches land.24
Some maritime events had such agency over human beings that even if several authors wrote about them describing the dangers undergone, the different aims that characterised their writings provided different perceptions of them. Seneca describes storms as a force against which the might of man is powerless,25 referring in a twofold sense to the crew and the passengers of a doomed vessel; they are both ‘idle’ (for action is of no avail) and they are ‘cowards’ (for they have missed out on a glorious death in battle).26 Indeed, the contrast between the civilised areas governed by men and the savage sea is clear in Seneca: in his Agamemnon the ominous calm from the harbour provides an effective contrast with the storm which is soon to descend in all its violence.27 Too often in Roman poetry, a storm makes a mockery of the helmsman’s skill, the oars or ropes drop idly from the hands of the panic-stricken crew, and the shipmaster does not know which wave to break and which to ride, leaving the sea to decide their fate.28 Only Juvenal described the skill and foresight of the grizzled captain, differentiating himself from the rest of the literary authors.29 On the other hand, jurists refer to storms as obstacles which, owing to their wildness, justify the lack of guilt from victims when they are unable to fulfil an obligation.30 Their brutality forces crews to take specific actions to protect human lives, and only in the case of survival is one required to compensate for the loss of others.31 Probably ancient poets included such hazards to warn sailors about the dangers of the sea as well as add a dramatic and powerful tone to their works,32 something entirely unnecessary and prejudicial in the case of juridical works.
Indeed, to that difference in purpose and style between legal and literary works, one needs to add the contrasting readerships of the two types of literature. While literary texts could have been read by anyone, legal texts would have been read by specific people, who needed them to solve a problem derived from interaction with the sea. Therefore, a jurist would need to focus on how to help these people rather than to present a poetic and dramatic account of experiences at sea. The latter indeed highlights that the readership of legal texts would be much smaller, bearing in mind that indeed, travelling was more an extraordinary event than an everyday condition in Roman society.33 Travel by sea was frequent for those who had recourse to it, but demographically this was a very small sample of the Empire’s population.34 Thus, if literary texts had a wider audience (even if that was mostly the Roman elite) than the practical texts from jurists on seafaring, it is possible that most people kept an idea of the sea as a savage realm that one should avoid.35 In addition, we need to bear in mind that, on top of the practical scope of legal texts, most of the texts that we find in Justinian’s Digest belong to jurists who worked during the high Empire, when trading routes were settled and seafaring, even if still dangerous, was not a rare phenomenon. In that sense, that perhaps means that they focus more on the practical aims of the text rather than on the symbolic nature of the sea in Roman culture.
Otherwise, the sea constituted a waterway that enabled the acquisition of new territories through conquest, and permitted Roman administration and control. Furthermore, being the quickest and cheapest way to travel, the sea facilitated the exchange of goods within the sphere of the civilised world and, particularly for the inhabitants of Rome, ensured the supply grain and other goods essential to their existence. Finally, sailing and navigation facilitated contacts between different cultures of the ancient world and allowed the flow of ideas and information and the exchange of knowledge and experience gained by ancient civilisations throughout the centuries. This clarifies the reasons why Romans were so keenly interested in protecting sailors and the goods transported by ships. One passage of Cicero depicts the sea as ‘the most violent of nature’s offspring’ and refers to the art of seafaring as being able to tame its wildness and obtain supplies.36 The latter highlights three key points: (1) that the sea was considered a savage and dangerous realm; (2) that it was nevertheless a source of income; and therefore (3) that people developed techniques to cope with its wildness and thereby obtain profit. However, for many literary authors, even though the thirst for profit would be a reason for men to risk their lives at sea, this did not prevent them from depicting these men as misguided and reckless.37 To sum up, writing about the sea normally entails dichotomies of different kinds: bridge vs. barrier, calm vs. violent, immensity vs. insignificance, or practicality vs. epic. The features and cultural importance of the image of the sea should not be reduced to the image portrayed through these dichotomies, but in these contrasting images one can see the importance of the sea in ancient Roman thought, as well as its impact on Roman society.
1.2 Ius Naufragii, or the ‘Righteous’ Plunder
The ancient ius naufragii implied that a shipwreck or its remains, upon reaching a foreign coast outside a trading hub recognised as such, belonged to those who took it.38 This practice entailed not only pillaging from the shipwrecked, but also provoking a shipwreck in order to loot it.39 The study of ius naufragii largely involves the issue of ownership of the wreck, and has given rise to three solutions wherein the wreck (1) belongs to the one who finds it; (2) belongs to the state which has authority over the coast where the shipwreck took place; or (3) continues to belong to its previous owner, who only has to assert his rights to recover it. The main questions here are why such a concept was adopted, how it was justified, and how it developed over time. By answering these queries, we will be getting to the heart of the knotty problem of the unity or plurality of the law applied to maritime domains.
In that sense, there are three inter-connected elements that had an impact on the origin and development of this legal practice. On the one hand, the Mediterranean basin was inhabited by different powers who, if not battling against each other, were trying to keep control over their own dominions. In fact, at a time when there was hardly any difference between foreigner and enemy, it was inevitable to consider as a bandit anyone who approached a port, even with a valid reason.40 That translated into the ownership of things lost in a wreck, which might be the subject of occupatio and might become the property of the person who first acquired possession of them, as if they were res nullius.41 In the historical process of the formation of real estate, that which also affects the ways of conceptualising the acquisition of objects, such as the institution of occupatio, loses its original function with the prevalence of derivative acquisition modes (e.g. traditio).42 Thus ius naufragii was unavoidably linked with the ancient legal understanding of the sea and shores, and the people inhabiting or moving along them.
Ius naufragii was a maritime custom that changed through time, being initially conceived of as an individual practice, but later practised by diverse communities around the Mediterranean,43 whose governments supported it, since they found it a means of subsistence, enrichment, and affirmation of their power.44 Therefore, ius naufragii cannot be simply categorised as either a prerogative of state authorities, and therefore belonging to public law, or strictly as a subjective right of the individual, and thus corresponding to private law. As we will see throughout this work, it was practised by individuals as a source of income (sometimes accepted by the state), and in some areas of the Empire, the state, like some earlier (and later) states, retained the right to seize wrecks and have them auctioned.45 These two possibilities would arise depending on whether or not the coast on which the shipwreck took place belonged to a powerful and highly organised state. In the first case the wrecks returned to those in power, while in the second they became the property of their discoverer.46
Ius naufragii was part of the economic activity sustaining coastal populations. Indeed, it is possible to find cases in which the rights of different communities to a wreck’s booty, and both sides needed to find a compromise.47 For example, the inhabitants of Salmidessos delimited the coast in order to share what came to their shores from wrecks.48 In another case illustrating this practice, a ship was wrecked in Knossos and two communities—Knossos and Tylissos—contested the cargo. This led to an agreement prohibiting looting from each other before settling on a share of the common loot.49 However, from the moment the Mediterranean peoples started to understand that such a conception of wreck and wreckage was a serious impediment to mobility and exchange, they started—outside any theoretical conception of ius gentium—to develop some restrictions and rulings for ius naufragii.50 Despite these limitations, it would not be until the start of the Roman hegemony in the Mediterranean, after their victory in the Punic wars, that the Roman conceptualisation of shipwrecking, as reflected in the edictum de naufragio, would start to gain prominence.51
Thus, at least officially, ius naufragii did not exist during the long Roman hegemonic rule over the Mediterranean; therefore, the remains of a wreck, either provoked or as a result of weather conditions, would remain the property of its legitimate owner. This opinion is strongly supported by reading the texts of the Digest in question; it would therefore seem that no problems arise in this area. Othewise, one may argue that the fact that jurists establish ways to deal with goods lost in a wreck indicates that indeed the practice was still alive and needed to be policed. A careful reading of legal texts and their confrontation with some rare extra-legal data leads us to think that the situation is much more complex than it is usually considered.52 Indeed, Dio Chrysostomus (40–115 CE) in his oratio euboica53 reproaches foreigners for unduly practising ius naufragii, because in doing so, they deprived citizens of a legitimate source of income. This speaks strongly of the legal plurality of the Mediterranean, where there was an official legal framework provided by the Roman Empire preventing ius naufragii, but with hubs where local populations still practised it for economic reasons.
1.2.1 Ius Naufragii and Piracy
It would be too optimistic to suppose that there is a clear-cut difference between ius naufragii and piracy, because both terms need to be understood in relation to the legal framework established by a state. While an act of piracy falls outside the realm of wartime law and state violence, ius naufragii, even though it sometimes implied looting and razzia, belongs to the sphere of rights admitted by the ancient states, partly due to the conflictive political and societal environment of the ancient Mediterranean.54 To make the picture even blurrier, merchants and pirates were not only tangled in an intricate dependence,55 but they were also psychologically and practically parts of a single, long-lasting historical structure, the ‘raid mentality’, which essentially represented a specific mode of economic activity.56
The term ‘pirate’ appears for the first time in inscriptions from the third century BCE,57 and several sources refer to them as πειράθαι, praedones, latrones, or barbari,58 but it would not be until the Roman Republic that these would be labelled as enemies of all mankind.59 In the Republic, their acts were characterised as being performed in groups, implying violence, and operating outside any legal framework. This stemmed from the idea that they did not constitute a populus, meaning a political and legal organisation with which it was possible to establish international relations, or to proceed to break them.60 The characterisation of an act of piracy as a violent action carried out by a group outside the legitimate frameworks always proceeds to varying degrees from victims’ subjective views of the wrong they have suffered. It places this action outside the framework of wartime law, outside conventions, and outside the limits of justice, whether of a private or public nature. Even maritime violence exercised outside the specific cases of war or treaties appears to have been increasingly in violation of the law, justifying, if necessary, a military intervention, it seems that a large part of the responsibility remained with the parties involved. This therefore leaves a great deal of room for interpretation and must be analysed through the filter of a relative polysemy which does not allow us to limit it strictly to the search for modern forms of piracy.
Before the Roman Republic, both ius naufragii and piracy were conceived by their practitioners as means of subsistence until they gradually came to be defined legally as noxious acts of private violence. The key difference between the terms would be that ius naufragii, as its name indicates, fell into the sphere of state violence and wartime law, and was therefore protected and sometimes even supported by the state. In contrast, piracy constituted acts of threatening or looting,61 performed by groups acting outside the wartime law and its limitations as established by the states.62 The possible limitations to ius naufragii were based on exercising power, negotiating, or simply threatening the other.63 These consisted of practices that sought compensation for the damage caused, or built relationships with other populations,64 and were known as androlepsía (ἀνδρολεψἱα), sýlan (σύλαν), or symbolai (συμβολαι), The first two refer to a sort of ‘right of reprisal’, which could penalise foreigners for damages committed by themselves or their community of origin, by kidnapping someone belonging to that group (ἀνδρολεψἱα).65 Differently, the sylan implied that any citizen (or city) who considered himself injured by a foreign community or a citizen of the latter, could exercise a compensatory action against it.66 When the city was the one suffering the damage, the action could be addressed to any member of the community, but when the injury affected a private individual, the revenge could only be inflicted on the aggressor.67 On the other hand, symbolon constituted a contract that sealed a relationship between two parties,68 which can be symbolised in an object (e.g. ring, tablet).69 These symbolai constituted the judicial conventions that fixed the arbitration procedures deployed in a treaty in order to settle the conflicts resulting from commercial practices at sea, and contributed to framing (but failing to eliminate) the use of maritime violence.70
Treaties also made it possible to place a boundary, however theoretical, between the legitimate and the illegitimate as regards the use of violence at sea, with a view to transferring property. Once the forms of maritime violence in times of war and peace are characterised, it becomes possible to define the illegitimate uses of maritime violence in the same way that brigandage constitutes an illegitimate use of violence on land.71 Documents concerning this could be formulated in different ways, including through bilateral agreements, or by phrasing permission given by one of the parties involved. One of the Ras Shamra tablets—as early as the thirteenth century BCE—provides evidence of a letter in which the king of Tyre allows an Egyptian ship, wrecked on his shores outside a port, to leave in safety with its entire cargo.72 Another example would be a letter from Ziaélas, a Bithynian monarch, in which he recognised the right of the inhabitants of Cos to asylum if they were wrecked on his shores.73 We can also find treaties between coastal Greek cities and traditional pirate communities on Crete binding the pirates to respect citizens of the contracting state and their property.74 Finally, the treaty concluded between Esarhaddon, King of Assyria (681–669 BCE) and Baal, King of Tyre (680–660 BCE), states that if a ship of Baal or the people of Tyre is wrecked off the land of the Philistines or within Assyrian territory, everything that is on the ship belongs to the king, but the ship could leave safe and unharmed.75 Some of these assaults were committed as part of a ‘raid mentality’, and indeed that way of thinking and acting in consequence was mostly linked to a cultural and traditional way of acquiring goods, rather than a socio-political act of war.76 In these historical and cultural contexts, the process of establishing the differences between ius naufragii and piracy along with its spatial dimension caused a dynamic negotiation of legal conceptions, politics, power, and identity.
In sum, the difference between piracy and ius naufragii is not easy to define in the archaic Mediterranean, where there was a semi-permanent state of war ongoing, as well as an absence of a hegemonic power dominating the Mediterranean basin which could define what constituted violence and what did not. Therefore, on many occasions, it depends solely on the nuances of the individual cases. Both conceptions are logically tied to a political organisation, which establishes the limits of legality and considers who is and is not part of a given social group, what counts as necessity and what constitutes violence.77 In addition, the perception is linked to a spatial sphere delimited by legal constructions enabled by the states. Piracy is not simply ‘armed violence exercised through the use of ships’, since the characterisation of these actions does not depend solely on the force exerted over something or someone, but also on how are these perceived in different places and by diverse cultures.78 In that sense, the criminalisation and prosecution of piracy would not be based on principles of natural law, but rather on unilateral solutions to act against specific situations, and was closely related to the notion of, if not Empire, at least a politically organised community.79
1.2.2 The Spatial Turn of the Ius Naufragii
As its very name indicates, the maritime cultural landscape is a spatially bound notion that connects land and sea through the lens of the individuals who understood and experienced the areas under study. The theoretical nature of the spatial turn does not contradict the theory labelled as ‘maritime cultural landscape’, but instead includes this approach among its different trends. The spatial turn is a theoretical approach that places emphasis on space and place. While never ignoring the fact that we are temporally bound beings, the use of this approach in different fields of study has increasingly emphasised the importance of spatiality in understanding the history of the human being and their relation with the environment.80 This approach demonstrates that space is no longer a neutral concept and cannot be considered independent from what it contains. Therefore, it also cannot be considered to be immune to historical, political and aesthetic changes.81 In that way, space itself is a socially produced entity that is created, understood and experienced. This trend has been accepted in several studies on the Roman world, even if most of them fail to address the relation between the land and the sea.82 Because of that shortcoming, this work considers the maritime cultural landscape as a way of integrating sea and land in the legal world of the Romans. Through this approach, it is possible to reassess the political and social underpinnings of the Romans’ relation to their maritime landscape.
As mentioned previously, ius naufragii was practised outside areas which were either labelled as commercial hubs or identified by the authorities as safe spaces by public declaration.83 The latter highlights the political dimension of this practice in the archaic Mediterranean, where the safe spaces were designated by public authorities and indicated their liaisons (or the absence of these) with individual populations. In this light, one of the first commercial locations that comes to mind would be the Greek emporion, which has generated vast literature in the past.84 In addition to the emporia, it was also possible to trade thanks to the concession of the right to asylia, which supported the creation of bonds inter gentes, and protected vessels and cargoes from maritime reprisals, including state-sponsored piracy and depredation on the high seas.85
The term emporion changed over time, but in the archaic period it was broadly defined as any community involved in commerce. During the Classical period, the term came to indicate a community that was geographically delineated, with its own administrators and juridical apparatus.86 Indeed, in the case of Greek law and the emporion, this categorisation is important because it reflects the existent dichotomy between land and sea spaces with regard to commercial litigation.87 However, for my argument, instead of only focusing on Greek emporia, we should think of these more generally as places that enabled trade; by doing so, the term becomes applicable to many of the trade enclaves that had fringed the Mediterranean ever since the Archaic period.88 Commercial spaces where foreigners belonging to a community were authorised to trade were under state protection.89 A focus on these areas seeks to recuperate an important dimension of how violence was addressed in the archaic Mediterranean, being regarded as acceptable with the exception of its occurrence in these safe spaces, which were designated via treaty or by identifying them officially, by virtue of public law. What is significant here is the link between violence and space, since suppression is necessarily connected to the establishment of control over territory and trade routes.90
In the ancient world, commercial hubs constituted safe areas that encompassed land and sea, and wherein individuals of different statuses could trade. Gradually, several populations began to boost traffic at their ports, leading them to establish import and export fees, and the transport of goods was carried out under the protection of the community.91 That said, we should not understand these commercial enclaves as spaces featuring some specific infrastructure, but in line with the empirical purpose of serving trade, we shall think of them as being designated by the law of the states as such. Even in later periods, the legal definition of ‘port’ referred not to a place with specific infrastructure, but to a protected watery space where the functions allowing import and export took place, thus featuring control.92 The latter means that a treaty agreed between states could establish a land and maritime space as a safe area where the right to wreck would not apply, making it available for sailing and/or trading. Therefore, in the case of a commercial enclave, we must ask where the protected space starts and ends. I am assuming that for these cases, the shorelines define the spaces of exclusion from the ius naufragii. Most probably, individuals sailing towards a commercial spot were not prevented from being wrecked and assaulted if they came ashore on the way.
One of the most famous examples of border delimitation treaties and actions by two large Mediterranean populations were the six treaties (five authentic and one fake)93 agreed between Rome and Carthage (509–279 BCE). Polybius describes their content, indicating the limits established for the Romans (and their allies) on navigation and anchorage in Carthaginian territory, as well as how trade should be conducted.94 These treaties are very succinct in this field, and even if they establish rights and duties for the parties, along with identifying an international merchant (in this case, Rome), they do not confine trade to a concrete place. Instead, they indicate that Romans should not sail beyond the Fair Promontory (Cap Bon), and on this note, designated the area for safe navigation. It is well known that these treaties (especially the first one) bear witness to the unequal political position of these two Mediterranean powers.
Nevertheless, this is not the only example of a treaty by which Rome established limits to the ius naufragii and bridged the gap between land and sea. These legal instruments started as bilateral agreements and were created in the context of an envisioned or ongoing war.95 The main difference here is that while the Roman-Carthaginian treaties delimitated concrete areas where navigation was safe or trade could take place, other treaties simply established friendship or alliance among the parties. In concrete terms, the Roman treaty with Maroneia (167 BCE)96 indicates:
[ποιεῖν τὸν δῆμον τὸν] Ῥωμαίων καὶ τὸν δῆμον τὸν [Μαρωνιτῶν καὶ] Αἰνίων τοὺς κεκριμένους ὑπὸ Λευκίο[υ Παύλου] ἐλευθέρους καὶ πολιτευομένους με[τ’ αὐ]τῶν· Φιλία καὶ συμμαχία καλὴ ἔστω καὶ κατὰ γῆν καὶ κατὰ θάλασσαν εἰς τὸν ἅπαντα χρόνον, (the [Alliance of the demos] of the Romans and the demos of [the Maronitai and] those of the Ainioi judged by Lucius [Paulus] to be free and sharing in their state: There shall be friendship and good alliance by land and by sea for all time).97
The wording is like several other treaties between the Romans and the Greek states in the second century BCE, and in particular the treaty with Astypalaia (105 BCE):98
τω δήμω τω] [’Ρωμαίων και] τω δήμω τω * Αστυπαλαιεων ειρήνη και [φιλία] [καϊ συμμαχία] έστω και κατά γήν και κατά θάλασσαν [εις τον α-] [πάντα χρόνον] πόλεμος δε μη έστω. (This friendship and alliance shall be good for all time, both by land and by sea. […] between the People of the Romans and the People of the Astypalaians; let there be peace, friendship, and alliance both on land and on sea for all time; let there be no war).99
As can be imagined, the interest in these treaties lies in the mention of the sea and the land. These documents demonstrate the role of law in negotiating the gap between sea and land with the aim of avoiding war, and therefore violence, to encourage commerce. Nevertheless, are we just dealing with acts of public violence, such as war raids? These treaties may have prevented the exercise of ius naufragii between both communities; it was considered unlawful not because of the act itself, but because of the people it was committed against. The latter constitutes one of the key differences that the Roman conception of shipwrecking introduced through the edictum de naufragio. Labelling the ius naufragii as unlawful marked a change from the prior practices of delineating specific hubs where this conduct was prevented, as well as its banning via mutual negotiations and agreements. In this case, this conduct was inadmissible and banned, full stop.
These treaties attest a fragmented Mediterranean and establish limits to sea violence, still bearing in mind the limits of the areas bound by their negotiation. In that sense, the guiding idea appears to have been that maritime violence and war should be avoided, but the exercise of private violence was perhaps more difficult to control. Sea transit points constitute areas where economic and cultural traditions mingle and clash.100 Thus, we need to bear in mind that perhaps there was an official or established framework of understanding certain practices depending on the main governmental power, while other traditions and customs could and would have remained in force and interfered with these general rules and principles.101 In that sense, for the people for whom looting had always been part of their economic income, it would have been difficult to be told that this practice was not acceptable anymore.102 Therefore, this element needs to be considered when examining culturally diverse Mediterranean areas. After all, any landscape is made up of multiple ideological and interrelated components, which are best understood through considering its previous inhabitants.
1.3 But This Is Vis! When the Shore Meets the Sea
In the phrase from this section’s title, Suetonius echoes the reaction of Julius Caesar who, when attacked on the Ides of March, shouted “But this is vis!” to his assailants, calling out their actions as violence.103 While the term ‘vis’ could be neutrally identified as force, in the context of the Roman Republic its meaning included conduct disrupting public order.104 This section reflects on how the violence threatening the Roman Mediterranean expansionist project at times compelled the Romans to open and close the limits of various Mediterranean areas, including both land and sea. It goes without saying that this exercise contributed to a change in the maritime cultural landscape in the areas where these regulations were applied, as well as to the configuration of the Roman maritime cultural landscape that was in turn being gradually defined.
In one of his papers, Arnaud indicates: ‘L’ appropriation par l’ état des espaces maritimes (…) s’ appuie sur des droits ou se revendique du droit, mais se construit en règle générale sur la violence’.105 With these words, he was referring to the different conflicts through which Roman power was extended to other regions.106 However, his statement expresses exactly what I aim to argue in this section: that a spatial consideration permeates these rulings focused on the eradication of violence. In what follows, I will sketch out how two different legal enactments of the Roman Republic addressing violence shaped the Roman maritime cultural landscape, which was unavoidably connected to the Roman state’s interests and ideology. The two laws addressed here were enacted prior to the edictum de naufragio and targeted organised sea banditry.
There are numerous studies on piracy,107 and my intention in this section is not to echo them and their descriptions of the circumstances that made piracy a threat to the Roman Republic. The pirates’ insolence was growing gradually, reaching its apogee in the first century BCE, when they started being referred to as ‘enemies of all mankind’,108 and not concretely of the Roman people.109 That qualification legally justified combatting pirates and suggested that it was an obligation of all countries, who could take the measures that they considered appropriate; this even justified crossing borders and jurisdictions.110
Even if the acts of the pirates constituted a crimen vis and should have been addressed through Roman criminal law, the violence and extent of their acts effectively made piracy a separate criminal category.111 Their actions were visibly differentiated from the ones committed by land bandits and resulted in the enactment of concrete legal dispositions to overcome that violence. This differentiation would become unnecessary later in the Empire because both sorts of banditry on land and sea were reduced to local roles.112 The Republican period, however, was of great significance from the point of view of the theory of law and it should not be omitted in research on the Roman maritime landscape. The Roman Republican fight against piracy constitutes another episode in which it is possible to observe how the boundaries of the legal dichotomy between sea and land were crossed.
The first source is the Lex de provinciis praetoris (100 BCE), also known as the Lex de piratis persequendis.113 Between 1893 and 1896, two inscriptions were discovered at Delphi, which, despite their fragmentary state and poor preservation, were identified as the Greek version of a Roman Lex that represented the Roman struggle against piracy in the Mediterranean.114 In 1970, a new inscription discovered in Cnidos proved to be a copy of the Delphian law.115 Indeed, although most of the Cnidos inscription has nothing to do with the Delphic inscription,116 there is a part, between columns II and IV, corresponding to the beginning and end of the law, which coincides with the Delphic inscription, although this is not a literal but rather a content match. The provisions contained in the laws from Delphi117 and Cnidos118 ensure navigational safety for Romans, Latins, and Roman allies by classifying these areas as Roman praetorian provinces. As such, this regulation forced eastern countries to undertake activities to prevent pirates from maintaining bases in their lands and to forbid them from seeking shelter in their ports.119 However, some other countries were not keen on entering an anti-pirate alliance with Rome, which by that time had become more formidable than the pirates.120
One of the first elements that can be noticed here is that these laws were intended to create safe navigational spaces, free from violence, and this was made possible thanks to a public law. The legal problem of suppressing piracy is compounded by the question of jurisdiction.121 To the need to establish clear frontiers between territorial units, the Romans responded by classifying provinces and establishing their rule of law. In that sense, jurisdiction was not in question.122 By contrast, the sea offered no such defined frontiers other than coastlines, variously defined in law. Therefore, these laws created a bridge between land and sea, keeping them safe from violent acts and establishing boundaries in given areas.
By being qualified as praetorian provinces, these lands came to have a legal significance. Becoming regions where the formulated law was valid affected not only the Roman people but also their allies.123 In the case of the Lex de provinciis praetoriis, it is possible to observe how many of the limits that would normally apply to Roman regulation were trespassed in order to fight violence (even if the commercial and expansionist interests of Rome played a role as well).124 We can see how a statute applies to Romans and non-Romans, and how it is valid both on land and at sea, since its aim was to allow for safe navigation. The urgency of the measures to target piracy (esp. Cilician) would have justified the exceptionality of these enactments.125 An inscription from Astypalaia indicates that they had fleets capable of capturing cities, and were able to defeat the pirates on their own, but this does not mean that Rome’s support was not necessary to successfully challenge piracy in these areas.126 In addition, these laws bear witness to the increasing power of Rome, which was managing violence via legal statutes and not by bilateral treaties as before. In terms of jurisdiction, these laws represent the first hints of the Empire since the creation of the Roman hegemony in the Mediterranean was accomplished through the creation of provinces.127 The laws of Delphi and Cnidos were legal enactments that aimed to last in the longue durée, and they implied a transformation of the political attitude of the Romans.
A different way of delineating the land and sea limits can be perceived in the Lex Gabinia de bello piratico, approved in 67 BCE by the tribune Aulus Gabinius.128 At that time, the violent threat of pirates in the Mediterranean (partly due to their strong position in the slave market) had even affected the grain routes, which in turn had caused an increase in its prices, and consequently heightened the risk of famine in Rome.129 This crisis led to a tribune proposing that the Senate should grant imperium infinitum to the general Pompey during a three-year campaign to fight piracy.130 On the territorial plane, Pompey was entrusted with the area of the entire basin of the Mediterranean Sea, from the Black Sea to the Pillars of Hercules, along with the coasts extending 80 km inland in order to include the caves where pirates were hiding.131 The reason for defining such an extended territory was to ensure that the leader had the ability to persecute the pirates wherever they appeared or fled to. As de Souza points out, the most effective way to deal with pirates was to tackle them on land, taking away their bases of operation.132
From a constitutional point of view, the Lex Gabinia has an important role in the legal landscape of the Roman Republic. The imperium granted to Pompey was not extended to all the provinces, but still gave him the right to use his power over a very large territorial area, which indeed constituted a breach of the Republican constitution.133 Such wide-ranging power resulted in a collision with the authority of the governors of individual provinces. According to Velleius Paterculus, Pompey had the same imperium in relation to the governors as the rank of proconsul.134 Politically, to grant such extensive power to a single person was an entirely new situation, as was the fact that his power could be used on both land and sea. The latter demonstrates how flexible the limits of the law could be regarding its application in defined spaces when there was a public emergency, as piracy was in relation to the Republic’s maintenance of order.
Cicero’s discourse in defence of the Lex Manilia (66 BCE)—a legal enactment specifying that Pompey the Great be given sole command in the Third Mithridatic War—provides details on the spatial extent of his powers similar to what can be seen in the Lex Gabinia. Another important impact of this disposition for the spatial discourse that is the focus of our study can be clearly read in Cicero’s words:
Cic.De Imp.Cn.Pomp.56, Itaque una lex, unus vir, unus annus non modo nos illa miseria ac turpitudine liberavit, sed etiam effecit, ut aliquando vere videremur omnibus gentibus ac nationibus terra marique imperare (And the result was that one law, one man, and one year not only set you free from that distress and that reproach, but also brought it to pass that you seemed at last in very truth to be holding empire over all nations and peoples by land and sea.).
Trans. H. GROSE HODGE
These phrases constitute the first literary reference to a victory ‘on land and sea’ in the broad sense of all lands and all seas.135 The latter not only demonstrates an entanglement between land and sea, but also appeals to the extension of Roman power and jurisdiction over both areas. The two sources included in this section provide evidence of the shape of the Roman maritime landscape prior to the enactment of the edictum de naufragio. These laws labelled spaces to prevent violence committed against ships, but still lacked the refinement of the later dispositions targeting private violence mentioned in the next section. They are indicative of the will and need of the Romans (and their allies) to legally change the Mediterranean maritime landscape to provide safe spaces to navigate. That is obviously a political act, but within that act, there was a spatial change that bridged the gap between the civilisable land and the ‘unruly’ sea. Faced with the long-standing detachment and separateness of sea and land, the symbolic and political aspects of these texts have combined ius civile and ius gentium, along with additional functional measures. The fundamental gap was between the public need and the expansionist dreams of the metropolis. It may even be that some ‘political’ borders were indeed symbolic in some sense, rather than fixed geographically.136 However, in reality, that imperium did not translate into dominium in the Roman case, and there was not effectively an extension of the state jurisdiction seaward.137 The latter highlights that the sea was a free resource in the Greek and Roman world.138 Indeed, Polybius, gives a list of the categories that were considered the property of the Roman people in Republican Rome; this includes rivers, lakes (or harbours), lagoons, public lands, and mines, but does not mention the seashore or the sea.139
The laws previously indicated specifically target piracy, and therefore, organised acts of global importance at the time. What happened then to the people who would keep on committing private acts of ius naufragii as a sustainable activity for themselves and their families? The latter leaves us with the difficult question of how private violent acts were targeted in these areas. Defining space to avoid violence is not only the first step towards fighting it, but it is also a way to signify the Roman space as violence-free. Other connected issues would be the range limits on the enforcement of these rulings, or the interaction of private space or interests in spaces considered public. These are, of course, complex topics, the dynamics of which I have only touched upon in this section, and which will be complemented by the chapters that follow.
1.4 De Incendio Ruina Naufragio Rate Nave Expugnata: A Roman Turn in the Conception of Shipwrecking
According to Rougé, the ius naufragii was still recognised during the Roman Empire and in fact was still used by several populations, underlining the legal plurality of the Roman Mediterranean.140 However, even though assaults on ships must have continued to be committed during that period,141 this practice was neither recognised nor accepted by the Imperial government.142 The first century BCE brought the enactment of the edictum de naufragio, which brought limitations to the conduct as described with respect to the ius naufragii.
The edict developed the paradigm of the shipwreck as a legal concept into being perceived as an event from which the subject must be protected, both in terms of integrity and property rights.143 Although these behaviours may already have been considered wrongful prior to the enactment of the edict,144 the essential aspect brought forward in this disposition was that shipwrecking came to be considered as an act of private violence that must be legally targeted. Thus, the previous conception of shipwrecks as part of the practices belonging in to the sphere of raid-mentality and wartime law were set aside, and in that sense, it was agreed that these events should be addressed through treaties and not through private legal remedies. As for the provision itself, the Digest states:
D. 47.9.1pr. (Ulpian. 56 ad Ed.) Praetor ait: In eum, qui ex incendio ruina naufragio rate nave expugnata quid rapuisse recepisse dolo malo damnive quid in his rebus dedisse dicetur: in quadruplum in anno, quo primum de ea re experiundi potestas fuerit, post annum in simplum iudicium dabo. Item in servum et in familiam iudicium dabo.145 (The praetor says: ‘If a man be said to have looted or wrongfully received anything from a fire, a building that has collapsed, a wreck, a stormed raft or ship, or to have inflicted any loss on such things, I will give an action for fourfold against them in the year when proceedings could first be taken on the matter and, after the year, for the simple value of the things. I will likewise give an action against a slave or household of slaves’).
This edict is one of the different sources targeting violence enacted in the first century BCE.146 The last century of the Republic is known for its violent events, such as the disturbances resulting from the domination of Sulla,147 the civil wars,148 the constant threat of pirates,149 the servile revolt of Spartacus,150 and the return of Pompey.151 Concerning the spatial context, both the military and diplomatic forces of Rome managed to impose order on the previous state of anarchy affecting diverse areas of the Mediterranean.152 In addition, the ever-increasing spread of violence in daily life became, at the end of the Republic, much more than a sign of the times: the law (both praetorian and legislative) devised solutions to hold back its rise. In this context, the praetor’s court, through the protection granted by awarding interdicts and the identification of illicit behaviours as vis, contributed to the enucleation of most of the instruments of social control for a society whose political and moral connective tissue was in the process of dissolving.153
Therefore, by identifying shipwrecking and the robbery committed because of it as events which should be punished, the praetor was establishing an instrument of social control by which all the subjects navigating along Roman coasts would be protected. Furthermore, this disposition bears witness to a new turn on the concept of violence from the last century of the Roman Republic, identifying several actions as unlawful. Previously, these actions were merely understood as undesired conducts.154 Although outright violence in most settings was against the law, individuals and groups from every social status used vis to negotiate power struggles and life’s frustrations.155 The latter means that, on the one hand, we can find subjects using violence to obtain their aims, and on the other, the authorities sought to control these behaviours by formulating legislation to combat violence. Indeed, routine violence is a tendency found only in the later Roman Republic’s pursuit of legitimacy in law and government.156 It might suggest that the praetor’s intervention by enacting the edictum de naufragio was made adiuvandi iuris civilis gratia—i.e., to support the protection existing before in the sphere of ius civile for similarly violent situations—and therefore dealt with situations not previously covered by the law.
In the context of the edict’s enactment, vis became an ethical label judged by social practice and political notions that identified not only the act of shipwrecking as violent but also the actions deriving from it.157 In that sense, this ethically-defined violence constitutes a form of social control responding to what was considered deviant behaviour. What is key here is that the edict makes no sense unless we consider the social realities affecting lawmaking in the Roman Republic. In this context, the edictum de naufragio defined the limits of land and sea and further imposed rules on them, but this legal exercise was not detached from society and politics.
In his volume of 1971, Labruna affirmed that the repression of violence in the Roman Republic started with the enactment of interdicts that prohibited the use of violence (vim fieri veto).158 These interdicts were especially used for protecting Roman subjects who owned large estates in Italy from the violent actions of other landowners.159 With this concrete prohibition ‘against acting violently’, the praetor created an effective tool for transforming the interests of the new leadership groups into an ideology. Labruna chronologically situated these events at the date of enactment of the Lex de modo agrorum (367 BCE) and the approval of the interdict uti possidetis.160 Thus, these interdicts only marked the beginning of how violence in legal consideration came to be regarded as a plague against the state and private individuals. To connect the repressive ideology embedded in these enactments to our edictum de naufragio, we need to move forward in time, towards the last century of the Roman Republic.
The social turbulences of the first century BCE made violence or vis a recurrent issue in the repression of crimes and delicts.161 In this context, the edict of Lucullus, which fortunately has been dated thanks to one of Cicero’s speeches,162 provides evidence of the legal repression of violent conducts taking place in Italian estates. The edict was intended to stop the continuous looting that the families of slaves, assembled in armed bands, carried out in houses located in the countryside. This action addressed behaviours which implied not only a risk for private subjects, but also a danger to public safety,163 and it reflects a connection with the edictum de naufragio, in that both target violence and robbery.164 Furthermore, these two edicts are also associated with the actio vi bonorum raptorum (D.47.8), which will be explained in detail in the next section.
All of these enactments targeted violent acts and punished them in a similar way. As is known, many of the edict’s elements were also included in the edict of the following year.165 In this case, by establishing a similar legal treatment of violence committed on land and water, the praetor was redefining the understanding of shipwrecking, as well as establishing a bridge between land and sea. On the one hand, it was very clear that these violent behaviours were not to be tolerated anymore, which exemplifies the Romans’ intention to make navigation safe. On the other hand, the edict provided for civil actions that took place in waterways, which in the case of the sea did not constitute a space governed by the civil law of the Romans. Meanwhile, one would think that this edict would showcase the progressive expansion of Rome via the sea, due to their repression of violence occurring in waterways through civil law. In most instances, the Republican rulings targeting vis appear to have been restricted to acts contra Rem Publicam, such as riots and sedition.166 The contrast with violence between individuals would then be classified as a form of iniuria.
Notwithstanding that, I think that even if the edictum de naufragio targeted delicts, it had an impact on how the act of shipwrecking was conceived, and in that sense, it affected both the public and private spheres. It was the symbol of a new political organisation of the Mediterranean, moving towards unity and safe maritime mobility. In addition, by reviewing the different fragments composing the Digest’s title de naufragio, it is possible to see how different behaviours are included or can be considered as related to this disposition. In that sense, Riggsby provides quite a useful chart on the equivalences among delicts and public crimes based on specific types of unlawful acts, such as property damage (vis) and theft (de sicariis).167 He echoes the differences between public and private, reminding us of the blurredness of these categories, especially if one considers the changes in punishment in the transition from Republic to Empire.
The praetor enacted norms that would apply to an inner space where he had jurisdiction (e.g. the city of Rome, the provinces), emphasising the idea of areas which were out of his control. That geographical limitation on the effectiveness of the edictum might have caused differences in the maritime cultural landscape of different areas identified by conquest, and as a result would not have enjoyed the same legal tools available in Rome. However, the analysis of the praetor’s legal activity, especially toward the end of the Republic, provides evidence of how this magistrate framed the law, defined space, and connected it to different groups of people. In its turn, the edict characterises the Roman maritime landscape as a space free of violence, thanks to the legal instruments enacted by the praetor and other magistrates representing the Roman state.
1.4.1 Chronology and Historical Context of the Edict
The years from 80 to 60 BCE offer a unique opportunity to observe the urban praetor creating particular provisions designed to repress violent events, and bear witness to the legal changes of the praetorian edict. At the time, the praetor was changing the background of the law, although the way in which he did so is still an open topic of discussion.168 However, it is not easy to reconstruct the development of the praetor’s edict, since only a few edictal dispositions are chronologically dated. Therefore, different scholars have tried to unravel the evolution of the praetorian edict by characterising it according to its language.169
From my point of view, the elements that help us date this edict are its historical context and the evolution of the civil procedure, events that influenced the ius edicendi, since Roman law is essentially formed by actions. Some of the clauses of the edict were maintained from year to year, although the praetors could introduce modifications in these dispositions.170 As a result, I focus on some legal provisions that display features similar to the edictum de naufragio, which will help to establish a chronological frame of enactment for this disposition. As an additional note, Cicero’s mention of neque incendio neque naufragio from the paradoxa stoicorum (46 BCE) helps to set a terminus ante quem.171
The social disorder of the decade between 80 and 60 BCE made violence or vis a recurrent issue in lawmaking. Despite the violence and latent crisis, the last years of the Republic constitute quite an active period for legal activity,172 although what still remains unclear is whether actual access to justice at this time would have been limited.173 Some dispositions for which we fortunately have a date are the formula Octaviana (79 BCE)174 and the edict of Lucullus (76 BCE).175 The first example was enacted by the praetor Metellus, who included in his edict an action aiming to protect subjects extorted by force or fear.176 Balzarini177 and Maschi178 have indicated that this formula was at the same time the origin of the actio de metus (of unknown date), and of the edict of Lucullus, which was the origin of the actio vi bonorum raptorum.
Another provision is the edictum de turba (tumult), which unfortunately is not dated but reconstructed by Lenel as being placed in the perpetual edict next to the edictum de naufragio and de hominibus armatis coactisve et vi bonorum.179 In fact, that disposition has similar features to the edict of Lucullus, the actio vi bonorum raptorum, and the actio de naufragio, since all these actions target violence and employ similar punishments. The edictum de turba, which targeted actions committed while there was a crowd, whether planned beforehand or not, resulting in damage caused to a third party.180 One last source which is helpful in establishing the date of our edict is the interdictum de vi armata, approved by the praetor Lucius Metellus in around 73–71 BCE, which aimed to retrieve the property of people who had been deprived of it because of acts of armed violence.181 This source is key in relation to Lucullus’ edict (76 BCE), as well as its subsequent evolution into the actio de hominibus armatis coactisue et ui bonorum, because it sought to repress the same behaviour.182 In addition, the edict of Lucullus (de hominibus armatis coactisve et vi bonorum raptorum) was a provincial norm approved by the praetor peregrinus in 76 BCE,183 although it became part of the album praetorium in approximately seven years.184 However, this edict could already have been incorporated into the edictal album back in 71 BCE, the date of Cicero’s speech (Pro Tullio) in which he mentions it.185
The relationship between the edictum de naufragio, the edict of Lucullus and the actio vi bonorum raptorum is key to dating the first one. In fact, Lenel’s edictum perpetuum (hereinafter, EP) placed the edict under the title de vi turba incendio, next to and following the provision of § 187 de hominibus armatus coactisve et vi bonorum raptorum and § 188 de turba.186 In the order of the perpetual edict, this disposition is located after the title de praedatoribus and before the title dedicated to the crimes de iniuriis. Since the order of the perpetual edict is an order of actions, the determining connections of that order will be precisely those of the actions themselves. Furthermore, as can be seen in the Digest and in Lenel’s palingenesia, the comments on these three different edicts belong to the same books written by Ulpian (l. 56) and Paul (l. 54). The latter demonstrates the accuracy of the location of these edicts in the perpetual edict of Julian, since Paul’s work influenced that of Ulpian.187 Apart from that, it is possible to find similarities in the fragments:
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D. 47.8.2pr. (Ulpian. 56 ad Ed.) Praetor ait: ‘Si cui dolo malo hominibus coactis damni quid factum esse dicetur sive cuius bona rapta esse dicentur, in eum, qui id fecisse dicetur, iudicium dabo. Item si servus fecisse dicetur, in dominum iudicium noxale dabo’. |
D. 47.9.1pr. (Ulpian. 56 ad Ed.). Praetor ait: ‘In eum, qui ex incendio ruina naufragio rate nave expugnata quid rapuisse recepisse dolo malo damnive quid in his rebus dedisse dicetur: in quadruplum in anno, quo primum de ea re experiundi potestas fuerit, post annum in simplum iudicium dabo. Item in servum et in familiam iudicium dabo’. |
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D. 47.8.4pr. (Ulpian. 56 ad Ed.) Praetor ait: ‘Cuius dolo malo in turba damnum quid factum esse dicetur, in eum in anno, quo primum de ea re experiundi potestas fuerit, in duplum, post annum in simplum iudicium dabo’. |
Indeed, Cuiacius indicated that the edictum de naufragio was unnecessary because the actio vi bonorum raptorum included the case defined in this edict, and applied the same punishment.188 I have published elsewhere on the relation between these fragments and the edict of Lucullus; here, I will only summarise the details of their connections and affinities.189 In sum, the coexistence of the actio de naufragio and vi bonorum raptorum in the Digest will be justified because the special edict (de naufragio) was older, and later the praetor approved a general action to target a larger number of cases. However, the compilers might have wanted to preserve the actio de naufragio in the edict, due to concerns over it being forgotten in case there was no other disposition dealing with these sort of events.190 As for the placement of the actio vi bonorum raptorum in relation to the actio de naufragio in the Digest, I believe that the fundamental criterion that could have moved the compilers to order both actions in such a way, is the need to organise texts from the more general (addressing a larger number of cases) to the particular. Another example of texts organised in this way can be seen in the inclusion of section 4.9 (in relation to the edictum de turba) of title 47.8.191 The dichotomy between specific and general actions is key when tracing the evolution of the dispositions mentioned.
As has been seen, D.47.9.1pr described the event targeted in the edict and its punishment, while in the case of the actio vi bonorum raptorum, these elements must be reconstructed through two texts. This sort of punishment is not directly mentioned, which can be justified by the fact that this edict was preceded by Lucullus’ edict (76 BCE),192 although Cicero had already mentioned the in quadruplum penalty in his Pro Tullio speech.193 The reconstructions of the edict in relation to the fragment contained in the Digest and the text of Cicero pointed to some decisive differences between the two texts. These fragments say:
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Cic.Tul.7–12: Iudicium vestrum est, recuperatores QUANTAE PECUNIAE PARET DOLO MALO FAMILIAE P. FABI VI HOMINIBUS ARMATIS COACTISVE DAMNUM DATUM ESSE M. TULLIO. Eius rei taxationem nos fecimus; aestimatio vestra est; iudicium datum est in quadruplum. |
D. 47.8.2pr (Ulpian. 56 ad Ed.) Praetor ait: ‘Si cui dolo malo hominibus coactis damni quid factum esse dicetur sive cuius bona rapta esse dicentur, in eum, qui id fecisse dicetur, iudicium dabo. Item si servus fecisse dicetur, in dominum iudicium noxale dabo’. |
One of the first recognisable differences between both texts is that, according to Lucullus’ edict, the men who committed the damage had to be armed. Besides, it is evident that the case included in the actio vi bonorum raptorum covered a larger number of scenarios, including not only alleged damage caused by gangs but also cases of goods stolen by force. The differences between these texts have led authors to propose very different theories concerning their evolution. What is important about these theories is that they are, in one way or another, describing the logic of the praetor when creating law, and in that way chronologically locating the edict of Lucullus with respect to the actio vi bonorum raptorum. This, in turn, provides traces through which to pinpoint the possible period of the edictum de naufragio.
Some have argued that the Digest’s fragment is the combination of two edicts (dolo malo hominibus armatis coactisve damnum datum and bona vi rapta).194 One related issue is whether the conducts of robbery and damage addressed in the edict were included from the beginning or were the result of a second evolution of the disposition.195 Vacca thought that the actio vi bonorum raptorum was an edict created ex novo, although she understood that the edict presented substantial differences from Lucullus’ edict in its later development, so this evolution would have been motivated by different social needs.196 According to her, while the Republic sought to tackle situations through the repression of a specific situation (e.g. damage committed by an armed gang), with the arrival of the Principate there was an increase in the power of criminal repression in situations that endangered individual security and social peace.197 Dispositions such as the edictum de naufragio are responses to crises, violence or force majeure, and so are therefore related to the situations that caused the need for such direct and concrete measures.198 Later, perhaps with the codification of Hadrian’s edict,199 the trend seemed to follow the approval of more general edicts, e.g. vi bonorum raptorum, actio de dolo malo200 or actio de metus, which included a larger variety of behaviours. In this way, the initial demand for actions punishing concrete events (such as the edictum de naufragio) gradually disappeared. During the Principate, the praetor tried to protect individual security, giving relevance to the diverse fields connected with vis, and extending the application of this concept into more general fields. The jurists made special efforts to cover violent theft, which was also comparable to robbery committed to take advantage of a catastrophe.201
That the expression dolo malo hominibus (armatis) coactis (ve) in actio vi bonorum raptorum remained in the title of the edict could be a reminder of Lucullus’ original edict, but the presence of armed gangs would not be an essential requirement in the new provision. In short, once the original ratio that justified the existence of that edict had been superseded, the disposition had a broader repressive focus in the subsequent evolution.202 These differences could be attributed to a jurisprudential elaboration affected by a diverse social and political reality that influenced the approval of Lucullus’ edict. This ruling faced the need for a private criminal action against violence involving the use of weapons or being committed by violent groups. After that, the jurists proceeded to extend the scope of the edict so that it could cover a larger number of cases of violent theft without requiring the use of arms or the involvement of violent gangs.
Another issue is to provide an exact dating for the edictum de naufragio. Balzarini203 thinks that shipwrecking was punished through the Lex Iulia de vi, implying that the edict was approved after that law (17 BCE). He bases his argument on a text from Marcian,204 in which the Severan jurist says that the cases targeted by the edictum de naufragio are included in the range of the Lex Iulia de vi. Something similar can be seen in D.48.6 (Ad legem Iuliam de vi publica), specifically in § 3.5–6,205 in which Marcian refers to several of the events targeted by the edicts of Lucullus, de naufragio, or vi bonorum raptorum as being included in the scope of the Lex de vi. The latter is a sign, in Marcian’s opinion, of the fact that these violent behaviours could come within the scope of this law, probably to maintain adequate protection as the edicts punishing these behaviours had been in force for a long time. In addition, this is another example of how punishable types of behaviours assigned to the spheres of public and private vis appear to be mixed in the edict and its subsequent developments.206 More details on how the actions associated with the edictum de naufragio functioned will be provided in the following chapters (especially chapter two).
In what concerns the chronology of the dispositions mentioned, the actio vi bonorum raptorum, due to its general take on targeting behaviours, seems to correspond to a different period from that of the actio de naufragio and de turba, which both include specific cases. Concerning the book 56 ad edictum from Ulpian, it is necessary to remember that the jurist wrote his comments ad edictum following Hadrian’s edictum perpetuum. This compilation included the actio vi bonorum raptorum in the version that targeted a larger number of cases, and not the ruling depicted in the edict of Lucullus. Thus, even in his book ad edictum, he might have commented first on that general edict, even if the new version was enacted later than the edicts de turba or de naufragio. In sum, from my point of view, the edictum de turba was probably approved before Lucullus’ edict, because although it punished behaviours carried out during situations of confusion, the penalty established was less severe than the one indicated in Lucullus’ edict.207 Following this, it was possible that in the same repressive spirit, Lucullus’ edict—which maintained the penalty in quadruplum—was approved shortly afterwards. The edictum de naufragio could have been approved later, also including the same penalty as that of Lucullus’ edict, and targeting both the acts of shipwrecking and robbery. This chronological order is hypothetical, although the connection among these three edicts is based on the interrelationship between violence, order, and politics.
Blumenberg 1979; Dunsch 2013, 42–59; 2015, 17–42.
Morrison 2014.
Some authors compare sailing during a seastorm with the actions of an intrepid soldier who is the first to scale the walls of a besieged city; see Luc. (5.672–676), Seneca (Ag.502), and Silius Italicus (Pun.14.121–124).
Beaulieu 2015, 9, see also Lampinen 2022.
Hom.Od.1.3; Juv.12.81; Petron.Sat.103; Stat.Silv.3.2.
Verg.Aen.12.766–769; Hor.Carm.1.5.13–16.
Cic.Nat.D.3.89; Guarducci 1971, 219–223.
e.g. D.6.1.36.1 (Gaius 7 ad Ed. Prov.).
D.39.6.3 (Paul. 7 ad Sab.).
Hom.Il.23.59–61; 125–126.
Hom.Il.15.149.
Hom.Il.15.624–628.
Hom.Od.1.183; 2.420; 3.285; 4.474; 5.349; 6.170.
Sen.Med.305–308; Juv.12.57–59.
Juv.12.5–24; Verg.Aen.1.50.
e.g., After the wreckage, the sailors’ goods are stolen, and they are enslaved (Hdt.3.137–138); or the shipwrecked are thought to have insulted the gods (Lucian.Dial.Mar.2; Verg.Aen.6.359; Ov.Her.6.103); their survival can be either acclaimed (Hom.Od.9), and they can be sacrificed to the Gods (Ov.Met.12.24–38; Hes.Cat.23.17–26), or massacred (Hom.Od.10.81–133). Finally, those shipwrecked who have lost everything could be forced to into begging: Juv.12.28; Phaedr.4.22.24–25; Pers.1.88–89. See also chapter two, section 2.2.3.
D’Agostino 1999; Lindenlauf 2004; Dunsch 2013; 2015; Campbell 2020, 215–216.
Tac.Ann.1.70, where honestae mortis refers to death on land and inglorium exitium to the fate of the shipwrecked. Otherwise, Ov.Tr.1.2.51; perhaps had in mind the Homeric epithet (Il.2.21.273) when he described death at sea as pitiable.
Hom.Il.21.203; Hor.Epod.10; Ov.Tr.1.2.56; Ov.Her.10.123; Plaut.Rud.512–513. Also, Purcell 1995.
Prop.3.7.31–32.
Reitz-Joosse 2016, 276–296; Rookhuijzen 2021, 213–228.
Aratus.Phaen.298.
D.1.8.2pr. (Marcian. 3 Inst.).
See chapter three, section 3.1.
Sen.QNat.5.18.6.
Huxley 1952, 122. Other texts from Seneca (Sen.Ag.514–516), Silius Italicus (Sil.Pun.17.261–264) and Tacitus (Tac.Ann.2.23) explicitly or by implication point out the contrast between the ‘brave’ and the ‘cowardly fate’.
Sen.Ag.590.
Luc.5.645–646; Ov.Tr.1.2.26; 1.2.49–50. On the wildness of the Mediterranean seawind: Hor.Carm.1.3.12–13; Stat.Theb.5.368–369; Ov.Met.11.490–491; Verg.Aen.1.53; 82–83.
Juv.12.32–33.
D.2.11.2.6 (Ulpian. 74 ad Ed.); D.4.6.38.1 (Ulpian. 6 ad Leg. Iul. et Pap.); D.6.16.1 (Paul. 21 ad Ed.).
D.14.2.4.1 (Callistrat. 2 Quaest.); D.14.2.10 (Labeo 1 Pith a Paul.Epit.).
See also Verg.Aen.1.122–123; Ov.Met.11.514–515; V.Fl.1.637–638.
Woolf 2016a and 2016b.
Woolf 2016b.
On readership of ancient literature in the Roman world: Kenney 1982, 3–15; Starr 1987, 214, 223; Bowie 1994, 435–459; Johnson 2009, 323; Wiseman 2015.
Cic.Nat.D.2.152.
Hes.Op.641; 678; Sen.QNat.5.18.16.
Alonso 2007, 219; Huvelin 1929a, 7–8; Rougé 1966a, 1467–1468; Apollod.Epit.6.7–8; Amm.Marc.15.2.2–3; Polyb.2.8; Plin.HN.2.73(71) and 7.57.11; Strab.5.4.2; 89.5.2; 17.3.20; Dionys.Per.47–49, and the existence of coastal areas with a large number of wrecks sunk near the sandy shores probably indicates that the wrecking of vessels by attracting them to the coast with signs was common, see; D.47.9.10 (Ulpian. 1 Opin.); Purpura 1986, 156.
Hdt.3.137–138.
e.g. Verg.Aen.1.563–564. It is this too-frequent attitude of the foreigner as enemy which brought about, e.g. the semantic evolution of the word hostis, which, according to the testimonies of Cicero (Off.1.12), Varro (Ling.5.3), and Servius (Aen.2.424), originally only had the meaning of foreigner; see: Huvelin 1929a, 7–8; Rougé 1966a, 1468.
We can define occupation as the legal act of taking possession of a res nullius, with the intention of making it one’s own, considered by objective law as suitable for the acquisition of property. See Bonfante 1928, 50–57; García Garrido 1956, 273.
That affects institutions such as the derelictio or deperditio, which were key to determining the acquisition of wreck remains. See chapter three, section 3.2.1.
Aesch.PV.727; Diod.Sic.5.39.8; Hdt.1.166; Andrich 1904–1911; Rougé 1966b, 109; Moschetti 1977; Vélissaropoulos-Karakostas 1980, 162; Janni 1996, 453–470.
Strab.3.175–176, Chic García 2013, 17.
Fortunat.Ars.Rhet.1.13; Rougé 1966b, 341; Gibb 1999, 808.
Rougé 1966a, 1468.
Alonso 2007, 219; Scholten 2000, 11.
Xen.An.7.5.2; Van Effenterre 1942, 32–40 (Inscr.Cret.I.XVI. nº 4 B = Inscr.Delos, 1513 B); Vélissaropoulos-Karakostas 1980, 161.
Xen.Hell.6.5.1–3; Bengston 1975, n. 148.
See section 1.2.1.
It is also at that moment that Rome started to expand its trading networks along the Mediterranean, with many subsequent effects. For a summary, see: Stefanile 2017, 258–262.
See especially chapter five, section 5.1.
Dio Chrys.Or.7.31.
As indicated by Ormerod 1997, 59–73. It is different in later periods, when the state of war is something exceptional; then it is easier to establish differences between privateer and private, between prize and booty. Privateers would seize spoils and justify this by claiming it was part of a just war, while pirates only acted for their own good and their acts found no legal justification. The latter is the approach as phrased by Grotius, which is not extensively treated in this work. Otherwise, see Kempe 2009, 393–395.
De Souza 1999, 22, 56, 201–202; Alonso-Núñez 2007.
Cassola 1968, 28; Gabrielsen 2001, 237; Bresson 2016, 418, who refers to using the ‘economic rationality of violence’. The ‘raid mentality’ is still present nowadays, Dua 2017, 201.
Arnaud 2016, 21.
Pl.Leg.941; Hom.Od.16.426; Hdt.7.136.2; Plaut.Mil.115; Plin.HN.2.117; Suet.Aug.27.4; Lucian.Dial.D.1.122.
Cic.Off.1.11.33; 1.13.41; 3; 3.107; Cic.Verr.28.73; Cic.Rosc.Am.50.146; Livy.Epit.4.58.6; Arnaud 2016, 23–25.
The acts of piracy do not constitute acts of war, since the enemies are those peoples to whom Rome formally declares war, D.50.16.118 (Pompon. Ad Quint.Muc.).
Thuc.1.4–5; Dem.De Cor.53.3; Eur.Hel.765–769; 1125.9; Ps.Apollod.Bibl.2.1.5; Hom.Od.3.69.12; 3.71–74; Lys.22.14; Arist.Polit.1.1256; Polyb.2.4–5; 2.8–9.
Gabrielsen 2001, 225; Arnaud 2016, 24.
Rougé 1966a.
At least before the Romans established their dominion in the Mediterranean basin, as indicated in Rougé 1966a.
Dem.De Cor.21.82; 23.82.4; Polyb.8.50–51; Lexeis Rhetorikai in Lex.Seg. 213–230. 214.2; Bravo 1977; MacDowell 1963, 27–28; Vélissaropoulos-Karakostas 1980, 141–150.
SEG II² 1132; SEG IV² 1.68; FD III 2.68; SGDI II 2506; CID IV 12; CID IV 114; SEG IX 1²; SEG IX 2.573; SEG XII 9.191; IMT Skam/NebTaeler 192; SEG II 533; SEG XL 609. Gioffredi 1980, 169; Purpura 2002; Bravo 1980; Pritchett 1991, 68–132; Garlan 1999, 108; Cassayre 2010, chapter two, ‘Les conventions juridiques’; Dillon and Garland 2010, 164; Cecarelli 2013, 38.
Baslez 2008, 152.
Diog.Laert.4.46.9; 10.150; Eur.Orest.1130; Rhes.220; Plut.Phil.14.5.5. 15.7.2; 21.9.2; Pel. 30.8.2; Marc. 26.1.2; Pyrrh.20.3.1; Jones 1956, 217; De Ste Croix 1962a; 1962b; Gauthier 1972; Hopper and Millet 2016. However, Harris 2015, 8–12, indicates that the term σύμβολoν in some legal contexts refers not to contracts but to actionable liabilities.
Vélissaropoulos-Karakostas 1977b; Cataldi 1983; Herman 1987; Zuccotti 1992, 305–439; Purpura 1995, 468–469.
Laqueur 1936, 469–472; Gauthier 1972, 102.
Frezza 1949, 29; Bederman 2001, 192; Ando 2020a, 123.
Villoreaud 1955, 74; Rougé 1966a, 1469–1470.
Syll.3465; Vélissaropoulos-Karakostas 1980, 163–165.
e.g. SV iii.482.
Parpola and Watanabe 1988, 24–27.
Gabrielsen 2001, 226.
This problem is timeless, as highlighted by Dua 2017, 178: ‘The concepts of resource piracy and defensive piracy remind us that in global coverage only certain actions are labelled as piratical: “piracy” and “legality” are loaded and polemical terms that are modes of legitimising certain actions while condemning others’.
De Souza 1995, 180; 1999, 10–11; Chic García 2013, 31–49; contra, Arnaud 2016, 22.
Cic.Parad.27; Shaw 2000, 361–403, 2004, 326–374; Benton 2011, 239–240; Ando 2020d, 1–3.
The story of the spatial turn and its associated bibliography can be found in Warf and Arias 2009.
In many ways, the foundational text for the idea of political space is Foucault 1986; but the analyses of Lefebvre 1991 are more systematic and have been followed by Marxist and materialist geographers who have a significant role in the spatial turn, e.g. Soja 1989.
e.g. Spencer 2010; Scott 2012; Russell 2016a, 16–24, including a complete bibliography on the different uses of the spatial turn on classical studies. On the other hand, Nicolet 1991, 36, refers to the Roman power over land and sea thanks to its victory over piracy, and Horden and Purcell 2000, consider space as a historical actor on a large scale.
Huvelin 1929a, 7–8; Rougé 1966a, 1467–1468. And even then, the port authorities could refuse to let a vessel that looked threatening enter a port. See Cic.Inv. 32.98.
Such as: Vélissaropoulos-Karakostas 1977a; Bresson and Rouillard 1993, 26; Bresson 2000, 74–84; Dietler 2010; Etienne 2010; Demetriou 2011; 2012; Malkin 2012; Gailledrat 2014.
Glotz 1929, 267; Marotta 1996, 68 n.38, 74 n.68, 77; Van Berchem 1960; Rigsby 1996; Chaniotis 1996; Bederman 2001, 125.
Wilson 1997, 199–207.
Cohen 2005, 290–291, 302.
For yet more studies on the Greek polis, see: Polanyi 1963; Casevitz 1993; Counillon 1993; Hansen 1997; Gailledrat et al. 2018, 12.
Baslez 2008, 159.
Vlassopoulos and Xydopoulos 2015, 8–9.
Dem.De Cor.88.53.6, Plut.Cim.7.
D.50.16.59pr. (Ulpian. 68 ad Ed.) ‘Portus’ appellatus est conclusus locus, quo importantur merces et inde exportantur: eaque nihilo minus statio est conclusa atque munita. Inde ‘angiportum’ dictum est. Also, Philostr.V A.6.12, refers to a shore port as a place where controls of the goods traded took place.
Serrati 2006, 113.
The commercial focus is more noticeable in the first treaty (509 BCE), Polyb.3.22.8–10; see also, Scardigli 1997; Nörr 2005, 71–76, 160–167, 170–177, but there are also some dispositions in the second treaty (378 BCE); see: Polyb.3.24.10–11.
Ando 2020a, 117–118, refers to several examples of treaties. Later, these evolved into legal tools characterising the status of one city or its population in the Roman Empire, see Ferrary 1990, 235.
SEG XXXV 823. ll. 6–11.
Bagnall and Derow 2004, 90–92.
SEG XII 3.173. ll. 26–29 (= IGRR IV 1028).
Transl. Sherk 1969, 56–58.
Knapp 1997, 154. Also, Mataix Ferrándiz et al. 2022(c).
I will explore this topic further in chapter two.
Raids were a source of economic income in the archaic Mediterranean for several Mediterranean populations, such as Dalmatia, Cilicia and Liguria, see: Diod.Sic.5.39.8; Strab.4.203.
Suet.Iul.82.
Lintott 1968, 22–30; Fuhrmann 2013, 7015.
Arnaud 2016, 32 (‘The appropriation by the state of maritime spaces (…) is based on rights or asserts the right, but is generally built on violence’). This is also the main argument of Prange 2013, 9–33.
According to Flor.2.13, Caesar paraded a representation of the sea as a defeated captive in his Gallic triumph in order to show that he had conquered farther-off lands than any other Roman general. Along the same line of thought, Vergil thinks of the sea as a new world over which Augustus’ power can be extended, Verg.G.1.25–31.
Arnaud 2016, 527–536, covers the history of Graeco-Roman piracy with a wealth of references.
Cic.Off.3.107 ‘pirata non est ex perduellium numero definitus, sed communis hostis omnium’.
This would have implied a series of procedures in terms of declaring war according to the ius fetialis, such as the iusiurandum as indicated in Cic.Off.3.108. See also, Catalano 1964; Loreto 2001, 69–73; Bederman 2001, 55–57. On the importance of this distinction as compared to later periods, see chapter two, section 2.2.1 and chapter five, section 5.2.2.
Tarwacka 2009b, 2012, 70, 73; 2018, 302, 309; Policante 2015, 26–50.
Tarwacka 2009a, 56–57.
See chapter five, section 5.2.2.
Knidos, column II. 1–31 and Delphi, block B, 8–14, quoted after: Crawford et al. 1996, 231–270.
The text of the law can be found in SEG III.378; and FIRA I, 121 ff. (text from F. Riccobono). A few years after its discovery, some authors erroneously identified this law with the Lex Gabinia de bello piratico (67 BCE). See: Cuq 1923; 1924a; 1924b; Jones 1926, 158. An extensive study of the epigraphic problems of both inscriptions can be found in Monaco 1996, 116–118.
To check the text of both laws separately, see Greenidge 1986, 279–282, and to check the combined text, see SEG XXVI 1227. Also, Giovanni and Grzybek 1978, 33–47; Summer 1978, 211–225; Martin and Badian 1979, 153–167; Avidov and Timoney 1995, 7–14.
Ferrary 2008, 102; the Greek version was not an official translation made in Rome and sent to the provinces, but was made by the governor of the Asian province.
Delphi copy, Block B, ll. 8–12 (ὁμοίως τ]ε̣ καὶ πρὸς τὸν βασιλέα τὸν ἐν τ̣[ῇ ν]ήσῳ Κύπρωι βασιλεύοντα καὶ πρὸς τὸν βασιλ[έα τὸν ἐν Ἀλε]-|ξανδρείαι καὶ Αἰγύπ̣[τωι βασιλεύοντα καὶ ρὸς τὸν βασιλέα τὸν ἐπὶ Κυ]ρήνῃ βασιλεύοντα καὶ πρὸς τοὺς βασιλεῖς τοὺς ἐν Συρίαι βασιλεύον[τας, πρὸς οὓς] | φιλία καὶ συμμαχία ἐ[στὶ τῶι δήμωι τῶι Ῥωμαίων, γράμματα ἀποστελλέ]τω καὶ ὅτι δίκαιόν ἐστ̣[ιν αὐ]τοὺς φροντίσαι, μὴ ἐκ τῆς βασιλείας αὐτ[ῶν μήτε] τῆ[ς] | χώρας ἢ ὁρίων πειρατὴ[ς μηδεὶς ὁρμήσῃ, μηδὲ οἱ ἄρχοντες ἢ φρούραρχοι οὓς κ]αταστήσουσιν τοὺ[ς] πειρατὰς ὑποδέξωνται, καὶ φροντίσαι, ὅσον [ἐν αὐ]τοῖς ἐσ[τι] | τοῦτο, ὁ δῆμος ὁ Ῥωμαίω[ν ἵν’ εἰς τὴν ἁπάντων σωτηρίαν συνεργοὺς ἔχῃ.) ([—And likewise] to the king who reigns in the island of Cyprus and the king [who reigns in] Alexandria and Egypt [and the king] who reigns in Cyrene and the kings who reign in Syria [who] have a relationship of friendship and alliance [with the Roman people, [he] sends letters] [in which it is said] that it is right that they take care that from their kingdom [or] from their territory or from their borders not [depart] [any] pirate [and that the magistrates or the commanders of garrisons that [they] designate give asylum to the pirates, and that [they] take care, as far as this [it will be possible], that the Roman people (them) have [as] coadjutors for security of all). (Trans. Crawford 1996, 254).
Cnidos Copy, col. II, lines 6–11 ([—] τ̣ῶ̣ι̣ δ̣ή̣μ̣ω̣ι̣ Ῥ̣ωμαί-|ω̣ν̣ κ̣α̣τ̣ὰ̣ τ̣ο̣ῦ̣τ̣ο̣ν̣ τ̣ὸ̣ν̣ ν̣ό̣μ̣ο̣ν̣, ὅ̣π̣ως τῶν | ἐ̣[θν]ῶ̣ν̣ μή τ[ι]σ̣ι̣ν̣ ἄ̣δ̣ι̣κ̣α̣ π̣ρ̣ά̣γ̣μ̣α̣τ̣α̣ [μήτε] | [—c.10—] πρ̣ά̣[γ]μα̣τ̣α̣ γένηται, εἴπε̣ρ̣ | κ̣ατεδίδοτο π̣ρ̣ά̣γ̣μ̣α̣τ̣α̣, κ̣α̣τ̣ὰ̣ δύν̣α̣-|μ̣ι̣ν ποιεῖν ἄνευ δόλου πονηροῦ οἵ τε πο-|λῖται Ῥωμαίων οἵ τε σύμμαχοι ὀνόμα-|τος Λατίνου ὁμοίως τε τῶν ἐθνῶν, οἵτι-|νες ἐν φιλίαι τοῦ δήμου Ῥωμαίων εἰσίν, | ὅπως μετ’ ἀ[σ]φ[α]λείας πλοΐζεσθαι δύνων-|ται καὶ τῶ[ν] δ[ι]καίων τυνχάνωσιν …) (11. 1–11 [—? it has seemed good?] to the Roman people according to this statute, so that to none of the nations may there befall injury or [insult], for [who]ever? shall have received a charge?, insofar as it shall be possible, to act without wrongful deceit, so that the citizens of Rome and the allies and the Latins, likewise those of the nations who are friends of the Roman people may sail in safety and obtain their rights) (Trans. Crawford 1996, 253).
Ferrary 1977, 619–660; Tarwacka 2009a, 39–41.
Monaco 1996, 177.
Anderson 1995, 178.
Strab.10.5.4; 14.5.2.
The latter effect has also been observed by Westerdahl 2003, 468–470, the concept of land in Scandinavia has, among other things, a direct legal significance; a “land” (province) is thus the area of validity of a formulated law.
This is also the argument of Tarwacka 2009a, 63–66; 2018, 299.
Strab.14.5.2.
IG XII3 171; Geelhaar 2002, 115–117.
Ando 2020a, 119.
Asc.Corn.72; Cass.Dio.36.
Brunt 1987, 179.
Tac.Ann.15.25.
Vell.Pat.2.31.2.
Souza 1999, 114.
Monaco 1996, 224–226.
Vell.Pat.2.31.2.
Nicolet 1991, 36.
See also a similar approach in Westerdahl 2003, 493.
Thomas Fenn 1925; Johnson Theutenberg 1984, 482; Tuori 2018, 203, 214.
Hasebroek 1926, 126; Purpura 2004a; Marzano 2013, 235–239.
Polyb.4.17.2.
Rougé 1966a, 1478–1479; also signals Manfredini 1984, 2220–2221.
See e.g. Ulpian’s fragment § 10 of the edictum de naufragio, referring to people attracting the ships to the shore to steal from them.
Consistent with Scialoja 1939, 685; Purpura 1995, 475; 1976, 73–75.
Some fragments of the Talmud of Jerusalem show that this conception is not shared in other cultures: see Talmud of Jerusalem, Schequalim.VII.2.; Talmud of Jerusalem, Baba Qama.X.2.
Indeed, Plautus’ comedy Rudens refers to the unlawfulness of seizing property coming from a wreck (esp. 955–965) and it was probably written in 181–180 BCE. See: Charbonnel 1995, 303.
Text preserved in PS.5.3.2; Coll.12.5 and C.6.2.18 (294). Lenel thought that the last phrase was an interpolation, see Lenel Pal 2, 765–766 (§ 189); 1927, 396; also, Biondi 1925, 19; contra, Vacca 1972, 91–95.
See table four in the appendix.
Plut.Sull.31; Christ 2005, 21 ff.; Keaveney 2013, 124–128.
Brunt 1971, 116.
Monaco 1996, 78; Tarwacka 2009a, 29–35.
Shaw 2001, esp. chapter three.
Cic.Caecin.140.
Eckstein 2006, 3–5, 176.
For different points of view, see Lintott 1968, 52–84; 1971; 1992; Harries 2007, 106–117; Cascione 2012, 287.
Labruna 1971, 10–11; 1972, 528; 1986, 11.
Fuhrmann 2013, 7015; Bryen 2013, 52, indicating that in Roman Egypt, violence was always conceived of as unlawful.
Williamson 2005, 388, 392.
Following Black’s approach, the edict would constitute a normative evaluation, defining what is right and what is wrong, see: Black 1976, 165; 1984, 5; 27. Also, Clark and Gibbs 1965, 400–402.
Labruna 1971, 33–39; 1972, 528; 1986, 286.
See also Roselaar 2010, 114–115.
According to Labruna 1986, 284–286, the interdict was approved simultaneously with the Lex de modo agrorum, but the reality is that it is not clear when the interdictum uti possidetis originated. According to Roselaar 2010, 116, it is likely that it was in the second century BCE, due to the amount of ager publicus available then, a large part of which was possessed by occupatio, so that the need for some sort of legal protection for the occupants may have been felt more urgently.
Vacca 1965, 562; Labruna 1971, 33–37; 1972, 525–538. See also section 3 of this chapter.
Cic.Tul.8–12.
Vacca 1972, 521–524.
Serrao 1954, 77–80; indicate that the edict was provided for the cases of damage and robbery, and that these behaviours could be punished by a single action.
Brennan 2000, 132–133.
Riggsby 1999, 151–157. These were part of the Lex Iulia de vi (17 BCE); see Mommsen 1899, 128–130; 655–657; Vitzthum 1966, 127–132; Giltaij 2013, 525, indicating that this law referred to precise questions concerning the different crimina. On the concurrence between crimen and delicta implying vis, see Balzarini 1969b, 34.
Riggsby 2016, 316–317.
Brennan 2000, 133, 464; Dernburg 1873, 93–132, contra, Kelly 1966b, 341–345.
Dernburg 1873, 105–107; Daube 1956, 6; Kelly 1966b, 354–355, 349. Otherwise, Alan Watson compiled different key facts (table two in the appendix) that according to him could help to decipher the praetorian logic when publishing their edicts; see Watson 1970, 106–107.
Cic.Verr.2.1.44; Moatti 2015, 223.
Cic.Parad.6.51.8. For further texts in which the authors mention these events as related, see table one in the appendix.
Sherwin-White 1956, 7; Lintott 1968, 22–34; Labruna 1971, 6–27; 1972; Watson 1974, 32–33; Frier 1982, 238; 1985, 45–46; Riggsby 1999, chapter four; Williamson 2005, 350–357; Moatti 2015, 10, 96.
Du Plessis 2016, 5.
Rudorff 1845; Cervenca 1966, 312–316; Ebert 1968, 108–109; 1969, 404; Kupisch 1998, 471–474; Venturini 1994, 922–930; Calore 2011, 11–21, 125–154; although some authors think that this formula dates from the year 71 BCE; Von Lutböw 1932, 126–129; Hartkamp 1971, 191–193, 245–247.
Watson 1974, 105.
Cic.Verr.3.152; Lintott 1968, 130; Balzarini 1969b, 144–145; Frier 1982, 225; Tuori 2016, 64; Haubenhofer 2013, 165.
Balzarini 1969b, 142, 150.
Maschi 1966, 657.
Lenel EP, 391–396, § 187, § 188 and § 189.
Balzarini 1969b, 13.
In fact, when we read the Pro Caecina of Cicero (Cic.Caecin.41–48; 55; 60–61; 88), it is possible to appreciate that this injunction dates from the year 69 BCE.
Frier 1982, 237.
Asc.Corn.75.
Kelly 1966a, 15–16; Watson 1970, 65–67; Frier 1985, 52–57; Mancuso 1983, 384, denies the existence of the album pretorio, indicating that in fact the praetor approved several edicts during his charge.
Cic.Tul.3.7.Recuperatore, sunto. Quantae pecuniae paret dolo malo familiae P. Fabii vi hominibus armatis coactisve damnum datum esse M. Tullio, dumtaxat sestertium tot milium, tantae pecuniae quadruplum recuperatores P. Fabium M. Tullio condemnanto. Si non paret absolvitur. Nicosia 1965, 145, proposes 72 BCE, but I trust the opinion of Vacca 1992, 222 more.
Lenel EP, locates the edictum de naufragio in the title 34 § 189, classified as de vi turba incendio ruina naufragio rate nave expugnata.
Honoré 1982, 223, citing other authors is more typical of Ulpian than of Paul, which is why Ulpian is more likely to have copied Paul.
Cuiacius 1627, 1346; 1837, 293–294.
Mataix Ferrándiz 2019, 153–195.
D’Ors and Santacruz 1979, 655, explains the case based on the texts of Ulpian and Labeo about the special edict of defamation. The actio de naufragio appears in later fragments, which are listed in table one of the appendix.
Which states, loquitur autem hoc edictum de danno dato et de amisso, de rapto non: sed superiori edicto vi bonorum raptorum agi poterit (this edict talks about the damage caused and of what was lost, not of the stolen goods, while regarding theft, the superior edict can be used about goods stolen using violence).
Labruna 1971, 19–20, ‘colpiva in modo più rigoroso ipotesi forse già previste dalla Lex Aquilia (seconda metà dal secolo III BC), e da esso mosse la giurisprudenza per la individuazione del delitto di rapina’.
Cic.Tul.8–12.
Cramer 1816, 67; Cohn 1873, 187–193; Von Savigny 1825; Mommsen 1899, 660–671; Lenel EP, 391–393; Ebert 1968, 127–132; Balzarini 1968, 378–379; 1969b, 58–65. There are divergent opinions about whether the modification of both provisions occurred on a date between 71 BCE (Cic.Tul.) and 131 BCE (codification of the perpetual edict by Julian) (Watson 1970, 106); or whether the reconstruction was the work of a post-classical jurist or a Justinian compiler (Balzarini 1969b, 46–47). Elsewhere, Serrao indicates that a first edict was possibly approved in 76 BCE, which was specified and better bound by a later praetor, and that it was this edict that was included in the perpetual edict of Julian, Serrao 1954, 77.
Keller 1851, 541–543; Huschke 1826, 195–197; Huvelin 1915, 804 n. 4; 1929b, 37. In the view of Rouvier 1963, 448–452, the edict underwent a first evolution that combined the actio furti and the actio ex lege Aquilia, so the actio was expanded covering robbery. Contra, Vacca 1972, 2–12.
Vacca 1972, 97–101.
Huvelin 1929a, 85–89, gives a number of actions in the edict that cover the assumptions of furtum and damnum. The consistent process by the praetor of joining the furtum and damnum in the edict and in the formula constitutes a work of simplification and unification.
Frier 1982, 233.
About this codification, the main sources of knowledge are Eutr.8.17; 8.55–57; Jer.Chron.2.167; Aur.Vict.Caes.19.1–2; Hist.Aug.Did.Iul.1.1; CTh.11.36.26; CTh.4.4.7pr.; CTh.4.5.10.1; thus, all of them are postclassical. For different theories about the nature of this edict, see: Tuori 2006; 2007, 136–143, with related bibliography.
Lambrini 2009, 239.
Vacca 1972, 52–60, 105.
The reconstruction of the actio vi bonorum raptorum by Balzarini 1969b, 345, is very similar to the one of Lenel for the actio de naufragio.
Balzarini 1969b, 213–215, n. 85, contra, Cloud 1988, 583; 1989, 67, 436.
D.48.7.1pr–2 (Marcian. 14 Inst.) Sed et ex constitutionibus principum extra ordinem, qui de naufragiis aliquid diripuerint, puniuntur: nam et divus Pius rescripsit nullam vim nautis fieri debere et, si quis fecerit, ut severissime puniatur. For a translation, see chapter three, section 3.2.3.
D.48.6.3.3 (Marcian. 14 Inst.) Item tenetur, qui ex incendio rapuerit aliquid praeter materiam; 5. Sed et qui in incendio cum gladio aut telo rapiendi causa fuit vel prohibendi dominum res suas servare, eadem poena tenetur; 6. Eadem lege tenetur, qui hominibus armatis possessorem domo agrove suo aut navi sua deiecerit expugnaverit. (In the same way, he who in a fire has stolen something, except for the materials, is obliged to pay for it. 5. But he is also subject to the same penalty who has been in a fire with a sword or dart to steal, or to prevent the owner from saving his property. 6. It shall be subject to the same law who with armed men has driven the owner out of his house or field or his ship, or if he has attacked him with the help of others).
Riggsby 2016, 316–317.
See table three from the appendix.