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Published online by Cambridge University Press: 08 May 2015
The Lex Quisquis of Arcadius and Honorius was given at Ancyra on 4 September, 397, in a constitution addressed to Eutychianus, praetorian prefect in the East. This law, which is said to have been the last lex maiestatis, raises a number of difficulties, particularly in respect of the substantive category of wrongful acts which it laid down. The problems in this regard do not seem to have been satisfactorily resolved, nor even to have been fully noticed, and it is proposed to re-examine the position. Some attention will also be given to the penalties imposed by the lex, especially the rule denying the accused legal representation. Finally two postulates will be put forward: (i) that the law of 397 was no more than a restatement, in whole or substantial part, of an earlier law; and (ii) that the law of 397 was itself largely repealed in 399, but was subsequently re-enacted.
1 CTh ix 14.3 = CJ ix 8.5.
2 This seems to be implied by Kübler, ‘Maiestas‘, RE xiv 1.558. But in fact there was a lex maiestatis in 486 (CJ ix 5.1) and another at an unknown date if the missing Greek constitution incorporating the extracts from Paul and Marcian (CJ ix 8.6) was ad legem Iuliam maiestatis. See also p. 57.
3 For a summary of the earlier literature see Rein, Das Criminalrecht der Römer (Leipzig, 1844), p. 554Google Scholar and n. See also Kübler, op. cit. 554 fT.
4 See p. 53 on the difficulties involved in treating this law as a lex maiestatis.
5 CTh ix 14.3pr. The text is that of Mommsen, Theodosiani Libri 16, 1954 repr.Google Scholar
6 So Kübler, op. cit. 554 f.; cf. Bury, History of the Later Roman Empire, 1958 repr., p. 118.Google Scholar It is not clear what distinction Demougeot seeks to draw when he says that this law was concerned ‘non seulement de lèse-majesté mais aussi de “complot criminel avec des soldats, des citoyens et meme des barbares”’. Demougeot, De l’unité à la division de l’empire romain (Paris, 1951), p. 173, n. 286.Google Scholar
7 This seems to have been the opinion of Mommsen, Romisches Strafrecht (Leipzig, 1899), p. 594,Google Scholar n. 3, although his pronouncement is only made in passing: ‘Der Erlass beschränkt sich auf das capitale Majestätsdelict und auch bei diesem vielleicht nur auf Landesverrath und Beamten- und Senatorenermordung.’ See also Volterra, ‘Processi penali contro i defunti in diritto romano’, RIDA 2 (1949), 485 ff., at 496 ff.Google Scholar
8 Kübler, op. cit. 555, where he asserts that the novel aspect of this law is to be found in the fact ‘dass nach dem Gesetz … nicht nur die vollendete Handlung, der Versuch und die Vorbereitungshandlungen … sondern schon die blosse Absicht geahndet wird’. Cf. Bury, loc. cit.
9 This sentence wrecks the syntactical continuity, voluerunt is an unlikely tense, and iura (rather than leges) is a late addition if the distinction between lex and ius was maintained in the fourth century. On this distinction see Kunkel, An Introduction to Roman Legal and Constitutional History, Kelly, J.M.tr. (Oxford, 1966), pp. 116, 123, 145; cf.Google ScholarSchulz, History of Roman Legal Science (Oxford, 1946), p. 136.Google Scholar Contra Gaudemet, Iura i (1950), 223 ff.
10 Cf. Kübler, op. cit. 555: ‘In solcher Nacktheit ist der Satz wohl in keinem Gesetze der zivilisierten Welt, weder vorher noch nachher, ausgesprochen.’
11 CTh ix 26.1.
12 Eadem … voluerunt is important, even if interpolated (n. 9), for it at least shows that in the opinion of the interpolator cogitarit is to be explained in terms of the voluntas sceleris rule.
13 Cic. Pro Mil. 7.19.
14 Dig. xlviii 8.14: ‘Divus Hadrianus in haec verba rescripsit: “in malenciis voluntas spectatur, non exitus”.’ Cf. CJ ix 16.1.1; Apul. Flor. 20.6 ff.
15 On the whole question of attempts in Roman law see particularly Rein, op. cit. pp. 122 ff. Mommsen, Strafr. pp. 96 ff., is to a similar effect, but less lucidly so.
16 Thus one who went about armed for the purpose of committing murder was liable under the lex Cornelia de sicariis to the same extent as an actual assassin. Dig. xlviii 8. Ipr.; cf. CJ ix 16.6, 8. The rule was known under Tiberius: ‘Rhescuporis … maluit patrati quam incepti facinoris reus esse.’ Tac. Ann. ii66.2. Cf. CJiii 15.1 (A.D. 196): ‘(crimina) commissa vel inchoata’; CJ ix 9.14 (A.D. 242): ‘crimen … inchoatum est’.
17 The two fragments are combined in Ulpian, Ad Edictum iii frg. 218, by Lenel, Palingenesia Iuris Civilis, 1960 repr., Vol. 2, p. 428Google Scholar, as follows: ‘Haec autem verba “quod statuerit qui iurisdictioni praeest” cum effectu accipimus, non verbo tenus: et ideo si, cum vellet statuere, prohibitus sit nee effectum decretum habuit, cessat edictum. nam “statuit” verbum rem perfectam significat et consummatam iniuriam, non coeptam. et ideo si inter eos quis dixerit ius, inter quos iurisdictionem non habuit, quoniam pro nullo hoc habetur nee est ulla sententia, cessare edictum putamus: quid enim offuit conatus, cum iniuria nullum habuerit effectum? cogitationis poenam nemo patitur.’ Cf. Mommsen-Krüger, Corpus Iuris Civilis (Berlin, 1928), 1, p. 867, n. 6.Google Scholar
18 ‘Treason never prospers. What’s the reason? If it prospers none dare call it treason.’ (Anon.)
19 Dig. xlviii 4.1.1: ‘quo (sc. maiestatis crimine) tenetur is … cuius opera consilio malo consilium initum erit, quo quis magistratus populi Romani quive imperium potestatemve habet occidatur.’ It is worth noticing consilio malo consilium. Every other act of treason specified by Ulpian in this section is cast in a similar form. Cf. CTh ix 6.2 (A.D. 376): ‘adpetitae maiestatis crimine.’
20 Dig. xlviii 4.7.3.
21 Vell, ii 76.4; ii 130.3; Livy, Per. 127.
22 Fasti Amitemini.
23 For example, et quisquis de nece … etiam cogitarit—thus returning, if this is how the passage is to be supplemented, to Kübler’s understanding of cogitarit. Mommsen, Theod. Lib., p. 458, is alive to something of the difficulty when he suggests the removal of cogitarit to immediately before virorum inlustrium. But it is not clear how the scribe came to perpetrate so substantial a displacement.
24 In six other places etiam appears after the word which it qualifies, and in all these cases it has an unmistakable conjunctive force. CTh ix 14.3: pr.: barbaris etiam, senatorum etiam; 1: iubemus etiam; 5: Falcidia etiam, non etiam; 6: id … etiam. There is a consistent pattern in the use of etiam throughout CTh ix. When it follows the qualified word it has a conjunctive force: ix 1.3; 3.1.1; 7.4pr.; 7.4.2; 9.1.1; 9.1.2; 16.12; 17.2pr.; 17.2.1; 20.1 (tamen etiam, quam etiam); 21.2.1; 21.2.3; 21.10 (verum etiam); 24.1.5; 27.3; 30.1; 30.2; 34.2; 34.10; 40.17; 42.1.1; 42.7; 42.8pr.; 42.9.2; 42.15; 43.1.2; 45.3; 45.4.1- When it precedes the qualified word it is concessive: ix 1.14; 6.2; 9.1pr.; 9.1.6; 16.6; 16.11; 19.4.1; 20.1 (etiam falsis); 21.4.1; 21.10 (etiam adnotatione); 27.6; 37.4; 40.14; 42.1pr.; 42.8.1; 42.9pr. ix 40.22 is a doubtful case.
25 CTh ix 14.3.7; cf: CTh ix 5.1.1 (a lex maiestatis): ‘in admissi ipsius exordio.’
26 Suet. Tib. 19.
27 Tac. Ann. iv 28.4.
28 Suet. Caes. 75.4: ‘si qua … cogitarentur gravius adversus se … inhibere maluit quam vindicare. itaque et detectas coniurationes … non ultra arguit.’ Caligula’s admission de cogitato parricidio meant that he had entered Tiberius’ chamber, dagger in hand. Suet. Calig. 12.3.
29 The argument is not impaired by CTh ix 14.3.4: ‘Dotes donationes … quas ex eo tempore … factas esse constiterit, quo primum memorati de ineunda factione ac societate cogitaverint, nullius statuimus esse momenti.’ If cogitarit supports the meaning contended for in the text, so does cogitaverint, and perhaps even more strikingly. For if subjective contemplation is a difficult criterion when the question is one of criminal liability, it is quite impossible when it comes to establishing the exact moment of avoidance of an alienation. In fact, of course, CTh ix 14.3.4 is no different in principle from earlier rules, e.g. CJ ix 8.6.2: ‘nam ex quo sceleratissimum quis consilium cepit, exinde quodammodo sua mente punitus est.’ The rule was not even peculiar to the crimen maiestatis: ‘Post contractum capitale crimen donationes factae non valent ex constitutione divorum Severi et Antonini, si condemnatio secuta sit.’ Dig. xxxix 5.15. When Kubler, op. cit. 557, dismisses this and similar passages as interpolated, he overlooks the express attestation of an imperial constitution. His further argument, to the effect that expressions like post contractum crimen imply a later stage of the criminal undertaking than cogitarit, is of course merely a restatement of his basic interpretation of cogitarit.
30 Kübler, op. cit. 556 f.
31 Kübler, op. cit. 554.
32 Schulz, op. cit. p. 96.
33 See for example Dig. xlviii 4: 1.1; 3; 4.1; 5pr.; 5.2; 6; 7; 11; [Paul, ] Sent, 5Google Scholar 29.1; CJ ix 8.6.
34 Bauman, The Crimen Maiestatis in the Roman Republic and Augustan Principate (Johannesburg, 1967)Google Scholar, passim.
35 Ibid.
36 The process which began with Augustus was perhaps complete by the late second century. See the passages cited in n. 33.
37 On the contrary, when appellate jurisdiction was shared with proconsuls they were directed to exercise their powers salva nostrae reverentia maiestatis. CTh xi 30.68 (A.D. 429); cf. CTh ix 16.6 (A.D. 358: ipsam maiestatem); CJ i 14.12.1 (A.D. 529). The crimen maiestatis essentially pertained ad salutem principis. CJ ix 41.1pr. (A.D. 196); cf. CTh ix 37.2 (A.D. 369).
38 CTh ix 14.3pr.: ‘nam et ipsi pars corporis nostri sunt.’
39 On post-classical jurisprudence see Schulz, op. cit. pp. 278 ff. What was being undertaken here was the transference of certain conduct from its normal location (homicide) to a new one (treason). Classical jurisprudence had developed competent techniques for an operation of this sort (e.g. Dig. xlviii 9.1; xlviii 10.15pr.; xlviii 14.1.4) but it is not certain that these were well known to legal draftsmen in the fourth century, although they seem to have been revived by Justinian’s day. Cf. the precise poenam deportatione ad instar legis Iuliae ambitus (cf. utpote maiestatis reus) of CJ ix 26.1 with the vague poenam deportationis in futurum of CTh ix 26.3. There is consequently some room for the submission that utpote maiestatis reus gladio feriatur is too ‘competent’, and that something more prolix might have been expected. For a choice example see CTh ix 15.1; cf. CTh xvi 4.1.
40 CTh ix 14.3: pr.; 2; 3; 5; 4; 6.
41 Op. cit. 556 ff.
42 Some isolated sniping is no doubt possible, but the cumulative effect of the penalties, and in particular the exploitation of vicarious responsibility, seem to be unique.
43 CTh ix 14.3.1.
44 Tac. Ann. ii 29.1.
45 Ibid, ii 30.1.
46 Ibid, iii 11.2, 12.9.
47 Ibid, iii 67.3; cf. iv 19.5. The existence of a legal rule seems to be assumed by Koestermann, ‘Die Majestätsprozesse unter Tiberius’, Historia 4 (1955), 72 ff., at 103 f. and n. 71.Google Scholar There is no inconsistency between this and the previous two cases. On Tacitus’ portrayal of the gradual evolution of maiestas over this period see Koestermann, op. cit. passim.
48 Tac. Ann. iii 68.:. Messalla, like Silanus, was proconsul of Asia. His conduct (Sen. De ira ii 5.5) will clearly have exposed him to charges of maiestas, in addition to any counts of extortion that might have been preferred.
49 Tac. Ann. iii 68.1. For other innovations introduced at Silanus’ trial see Koestermann, op. cit. p. 104; Bauman, Historia 15 (1966), 423 f.Google Scholar
50 Tac. Ann. iv 19.4; iv 28; iv 34 f.; vi 8; xi 2.
51 Declam. 331.
52 Seeck, Geschichte des Untergangs der antiken Welt (Berlin, 1913), Vol. 5, pp. 302, 562;Google Scholar Kübler, op. cit. 554; Büry, loc. cit. Demougeot, op. cit. p. 173, is less specific.
53 N. 9.
54 P. 52.
55 P. 54.
56 The occurrence of this clause at this point makes the immediately following eorum of ix 14.3.2 ambiguous.
57 For example CTh ix 42: 2; 4; 6; 8; 10; 23.
58 No constitution has been preserved specifically annulling Rufinus’ acta, but this seems certain in view of CTh ix 38.9, ix 42.14. Annulment is assumed by Demougeot, op. cit. p. 163.
59 In which case the Urgesetz is earlier than Rufinus, for the extant law is not the result of merely one legislative act. The earliest date for the Urgesetz may be 374, in view of CTh ix 29.1.
60 Seeck, Regesten der Kaiser und Päpste (Stuttgart, 1919), p. 299,Google Scholar notes this law as ‘Aufhebung des zugunsten des Eutropius gegebenen Gesetzes vom 4. Sept. 397’.
61 Eutropius’ acta were annulled by CTh ix 40.17, dated, according to the subscription, XVI KAL. FEB. Then came ix 40.18, the postulated repeal of the Lex Quisquis. The date of ix 40.17 has been challenged on the ground that Aurelian did not become ppo until 27 August. Seeck, Regesten 299, therefore reads XVI KAL. SEPT. This results in the passage of ix 40.18 some three weeks before ix 40.17. But ix 40.18 is so clearly pursuant to ix 40.17 that the reversed sequence is very difficult. It is also not clear how the scribe can be blamed, for the sequence was established by the compilers. See also n. 73.
62 CTh i 1.5. The argument that Rufinus’ law should therefore have been preserved is easily answered. On the failure of the compilers to achieve completeness see Gaudemet, La formation du droit stculier et du droit de l’église au IVe et Ve siècles (Paris, 1957), p. 52.Google Scholar In any case CTh ix 42.15 is meaningless without a prior law.
63 C. Cordi 3.
64 It is reasonably certain that the known law of 397 was effective only in the pars orientalis. On legislative partition in the late fourth century see Gaudemet, ‘Le partage législatif dans la seconde moitié; du IVème siècle’, Studi de Francisci 2 (1954), 339 ff.;Google Scholar ‘Le partage législatif au Bas-Empire d’après un ouvrage récent’, SDHJ xxi (1955), 319 ff. The adoption by one pars of a law originating in the other is attested. Thus in A.D. 410 Theodosius II adopted Honorius’ law of A.D. 407. CTh xvi 5.48; xvi 5.40.
65 The text is corrupt, but the general meaning is ascertainable from Mommsen’s supplement, Theod. Lib., p. 892, and from CJ i 12.2: those who seek asylum in churches are not to be evicted.
66 That resort was had to maiestas when maximum punishment was desired is evident from CTh xvi 5.40.5.
67 The basic pattern was established by CTh xvi 5.7 (A.D. 381), under which heretics suffered confiscation, loss of testamenti factio, loss of access to Roman law and perpetual infamia. Confiscation extended to any of the heretic’s property in the hands of a husband, near kinsman, deserving friend or child, if found to have participated in the heresy, and even to an intermediary through whom any of these persons might benefit. The pattern was repeated in various forms in CTh xvi 5.8–66. The poenam praeteritis legibus cautam to be inflicted on proselytizers (xvi 8.19) included execution, confiscation (xvi 8.1,7; xvi 7.3) and, possibly, loss of testamenti factio (xvi 7.4).
68 Leniency also extended to matters such as prison conditions. CTh ix 40.22 (A.D. 414); ix 40.23 (A.D. 416).
69 Cf. CTh ix 14.3.7.
70 Cf. CTh ix 42.19, 20, 21.
71 Procop. Bell.Vand. i 3.7.
72 On which see Kübler, op. cit. 556.
73 Kübler, op. cit. 556, believes that Eutropius’ law abolishing the right of asylum was part of the Lex Quisquis. To the evidence cited by Kübler for Eutropius’ law add Sozom. viii 7; Socr. vi 5. In support of Kübler’s hypothesis it can be said that the extant Lex Quisquis is certainly not the whole law, for at the very least the preamble is missing. If the right of asylum was still available on 17 June, 397 (CTh ix 45.2), the Lex Quisquis begins to look like the law which cancelled the right. At first sight CTh ix 45.3 (27 July, 398) is against this, but the right attested by ix 45.2 applied to those wishing to avoid crimina vel pondera debitorum, whereas ix 45.3 only dealt with debtors and other cases extraneous to crimina. The Lex Quisquis will have cancelled the right only in respect of crimina. Cf. nocens, CTh xvi 8.19. The ancients particularly disliked the asylum law (Sozom. loc. cit., Socr. loc. cit.), and the odium in which the Lex Quisquis was held may very well have been due to this part of it, for the rest of the law will scarcely have offended the morality of the time. Kübler, loc. cit., is however on less safe ground when he postulates the repeal of this part of the Lex Quisquis by CTh xvi 8.19. This requires the unlikely repeal of an Eastern constitution by a Western one (unless CTh xvi 8.19 was the pro tanto repeal of an earlier Western restatement of the Lex Quisquis?), and in any case immediate repeal after the fall of Eutropius (by the lex from which CTh ix 40.18 was excerpted?) is sufficiently attested. See Sozom. loc. cit., a passage which also supports the view that annulment did not precede the fall of Eutropius, but followed it (cf. n. 61).
74 On these events see Demougeot, op. cit. pp. 414 ff.
75 Cf. Demougeot, op. cit. pp. 410 f., 414 ff., who compares this conspiracy with that which destroyed Rufinus. If Seeck, Untergang, Vol. v, p. 384,Google Scholar correctly implicates Stilicho in the mutiny of Sarus shortly before Ticinum, then this scelesta factio cum militibus vel barbaris may have formed one of the charges against Stilicho. But Demougeot, op. cit. pp. 411 f., exonerates Stilicho.
76 This seems clear from Zos. v 32.5 ff., 33: Honorius took fright and sought refuge in his tent, where he gave shelter to some of Stilicho’s supporters; several ministers were massacred in his presence, including his quaestor whom he was powerless to save; Stilicho believed that the emperor had fallen. Cf. Demougeot, op. cit. p. 420.
77 For the list of victims see Seeck, Regesten, p. 314.Google Scholar
78 That humiliores were massacred seems to follow from Zos. v 32.7.
79 Zos. v 33.1.