Freethought & Rationalism Archive

Riverwind · 05-29-2007, 08:36 PM

Sallust, Catalinian War (51):

Certainly I can say about punishment, as things are, that in grief and misery death brings a rest from ones labors, not suffering; it undoes all the troubles of mortals; after that there is no place for either worry or joy. But by the immortal gods, why did you not add to the sentence that they should be scourged first? Is it that the Porcian law forbids it? But other laws say in the same way that condemned citizens should not forfeit their lives, but they can be allowed to go into exile. Or is that that being beaten is worse than being killed?
....
After the republic grew and the power of civil factions increased as their numbers mounted, they began to afflict the innocent, and engage in similar behavior, and then the Porcian Law and other laws were enacted, allowing exile for those who had been found guilty.

If found guilty before Caesar, then as a Roman Citizen, wouldn't Paul have been exiled somewhere rather than beheaded? Where might he have been exiled? Was there a common place? Spain?

Pataphysician · 05-30-2007, 12:02 AM

From William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

http://penelope.uchicago.edu/Thayer/...RA*/Leges.html

"Poʹrciae De Capite Civium or De Provocatione enacted that a Roman citizen should not be scourged or put to death (Liv. X.9; Cic. de Rep ii.31, pro Rabir. 3, 4; Sall. Catil. 51).

Thayer Note: this is the law which protected St. Paul — from scourging, at least (Acts 22.24‑29).

Poʹrcia De Provinciis (about B.C. 198). The passage in Livy (XXXII.27, "Sumtus quos in cultum praetorum," &c.) is supposed to refer to a Porcia Lex, to which the Plebiscitum de Thermensibus refers; and the words quoted by Cicero (Verr. II.4, 5, "Ne quis emat mancipium") are taken, as it is conjectured, from this Porcia Lex. "

some of these sources you've already listed, here is the rest

Quote:

Livy History of Rome, Book 10 chapter 9

"Thus the number of the pontiffs was made eight; that of the augurs nine. In the same year Marcus Valerius, consul, procured a law to be passed concerning appeals; more carefully enforced by additional sanctions. This was the third time, since the expulsion of the kings, of this law being introduced, and always by the same family. The reason for renewing it so often was, I believe, no other, than that the influence of a few was apt to prove too powerful for the liberty of the commons. However, the Porcian law seems intended, solely, for the security of the persons of the citizens; as it visited with a severe penalty any one for beating with stripes or putting to death a Roman citizen. The Valerian law, after forbidding a person, who had appealed, to be beaten with rods and beheaded, added, in case of any one acting contrary thereto, that it shall yet be only deemed a wicked act. This, I suppose, was judged of sufficient strength to enforce obedience to the law in those days; so powerful was then men's sense of shame; at present one would scarcely make use of such a threat seriously."

Quote:

Cicero's The Republic, Book 2

"It was the same man who, in this respect preeminently deserved the name of Publicola, who carried in favour of the people, the first law received in the Comitia Centuriata, or Commons of Deputies, that no magistrate should sentence to death or stripes, a Roman citizen who appealed from his authority to the people. The pontifical books attest indeed that the right of appeal had existed, even against the decision of the kings. Our augural books affirm the same thing. And the Twelve Tables evince, by a multitude of laws, that there was a right of appeal from every judgment and penalty. Besides, the historical fact that the Decemviri who compiled the laws were created with the privilege of judging without appeal, sufficiently proves that the other magistrates had not the same power. Lucius Valerius and Marcus Horatius—men justly popular for promoting union and concord—sanctioned a law under their consulship, that no magistrate should thenceforth be appointed with authority to judge without appeal; and the Portian laws, the work of three citizens of the name of Portius, as you are aware, added nothing new to this edict but a penal sanction.

Publicola having promulgated this law in favour of appeal to the people, immediately ordered the axes to be removed from the fasces, which the lictors carried before the consuls, and the next day appointed Spurius Lucretius for his colleague. The new consul being the oldest of the two, Publicola sent him his lictors, and he was the first to establish the rule that each of the consuls should be preceded by the lictors in alternate months, that there should be no greater appearance of imperial insignia among the free people than they had witnessed in the days of their kings. Thus, in my opinion, he proved himself no ordinary man, when, by so granting the people a moderate degree of liberty, he more easily maintained the authority of the nobles.

I would not, without cause, have related to you these antique and almost obsolete events. I hasten to treat of more illustrious persons and times, and those notices of men and measures to which the rest of my discourse directs me."

Quote:

Cicero's "On behalf of Gaius Rabirius on a Charge of Treason"
Chapter 3

Or must a long speech be delivered about the theft of public funds or the arson of a public archive? Of this charge, Gaius Rabirius' kinsman, Gaius Curtius, by virtue of his own good character, was most honorably acquitted by a very distinguished court of justice. Rabirius himself, in fact, not only was never summoned to court on these charges, but he was not even called into the slightest suspicion by word of mouth. Or must a more thorough rebuttal be offered concerning his sister's son whom you alleged was murdered by my client when a death in the family was needed as a plea for a stay in the trial? What is as likely as a sister's husband being dearer to Rabirius than a sister's son and so much dearer that the life of the one was cut short in the most savage way when a postponement in the trial of two days was needed for the other? Or is more to be said about the retention of slaves not his own in violation of a Fabian law or the scourging of Roman citizens against a Porcian law, when Gaius Rabirius was honored enthusiastically by all Apulia and wholeheartedly by Campania? When not only men but nearly entire regions themselves, aroused rather more broadly than his name or boundaries of his neighborhood warranted, rallied to fight off his legal perils? Why would I prepare a long speech in answer to declarations made in this same proposal of a fine, namely, that my client spared neither his virtue and decency nor those of another? Rather, I suspect that Labienus laid down the ruling of half hour ahead of time so that I would not say more about his virtue and decency. Therefore, for these charges that long for the thoroughness of an advocate, you do understand your half hour has been long enough.......

Chapter 4

For that matter, Labienus, which one of us is a benefactor of the people? You, who think an executioner and his fetters ought to be inflicted upon Roman citizens in a public meeting? You, who order a cross to be fixed and erected for the punishment of citizens in the Campus Martius where the auspices are taken for the Centuriate Assembly? Or I, who prohibit a public meeting from being contaminated by the pollution of an executioner? I, who say that the forum of the Roman people must be cleansed of those traces of an unspeakable crime? I, who defend the belief that a public assembly ought to be kept pure, the Campus Martius holy, the body of every Roman citizen undefiled, and the right of liberty unassailable? This tribune of the commoners, this guardian and defender of right and liberty--a benefactor of the people! Really? A law of Porcius removed the rods from the body of all Roman citizens; this man of compassion has brought back scourges. A law of Porcius delivered the liberty of citizens from the lictor; Labienus, man of the people, handed their liberty over to the executioner. Gaius Gracchus carried a law guaranteeing that a trial may not be held over the life and citizenship of Roman citizens without the people's authorization. This benefactor of the people did not force a trial to be held by the Two Men without the people's authorization: he forced a citizen to be condemned on a charge involving his life and citizenship without a hearing of his case.

Do you even mention to me the law of Porcius, the name of Gaius Gracchus, the liberty of these citizens, and any other benefactor of the people who came to mind? You, who sought to defile the liberty of this people not merely with outlandish punishments but with savage words hitherto unheard, who sought to essay their civilization, and who sought to change completely their way of life? The fact is that this stuff, “GO, LICTOR. BIND THE HANDS,” which delights you, merciful benefactor of the people, does not belong to the liberty and civilization of today, not even to Romulus or Numa Pompilius. These are the formulas of Tarquin, a most arrogant and savage king, which the soft-spoken benefactor of the people that you are most effortlessly recalls: “THERE SHALL BE A VEILING OF THE HEAD.” “THERE SHALL BE A HANGING UPON A BARREN TREE.” These words, Roman citizens, were long ago suppressed by the darkness of time past as well as the light of freedom.

S.C.Carlson · 05-30-2007, 05:08 AM

Thanks, Pataphysician, for the quotes. That's why I was asking about "primary sources." All those references are contemporary secondary sources about the law. As far as I am aware, the actual texts of most of the Roman laws before Justinian have not survived, mainly because the copying of obsolete laws would have only appealed to fairly narrow antiquarian interests.

Stephen

Roger Pearse · 05-30-2007, 06:02 AM

Quote:

Originally Posted by S.C.Carlson

Thanks, Pataphysician, for the quotes. That's why I was asking about "primary sources." All those references are contemporary secondary sources about the law. As far as I am aware, the actual texts of most of the Roman laws before Justinian have not survived, mainly because the copying of obsolete laws would have only appealed to fairly narrow antiquarian interests.

This is interesting, and an area about which I know little. I'd be grateful for any expansion.

I know that we have extant the legal compendia of Gaius (recovered from a palimpsest) and the Theodosian code (extant in English and copyrighted by a bunch of lawyers, so I'm certainly not going to scan it!), plus the Pandects of Justinian, a compilation of earlier laws.

I also knew that Lactantius refers to books such as Ulpian's De officiis proconsularis which are now lost.

But are most of the republican laws now not extant, except via secondary mentions in the primary sources for our knowledge of antiquity?

All the best,

Roger Pearse

S.C.Carlson · 05-30-2007, 06:55 AM

Quote:

Originally Posted by Roger Pearse

But are most of the republican laws now not extant, except via secondary mentions in the primary sources for our knowledge of antiquity?

That's my impression from my desultory reading about Roman Law, including S. P. Scott's preface to his Civil Law, which begins:

Quote:

THE original sources of Roman law, lost in the obscurity of bygone centuries, are unknown. All efforts to trace them have, in the absence of authentic records, or even of reliable tradition, proved fruitless and unprofitable. Any monuments of former legislation which may have existed during the regal domination, or subsequently under republican rule, undoubtedly perished at the time of the invasion by the Gauls, or in the domestic convulsions which, at frequent intervals, afflicted the ancient city. There is no doubt, however, that Roman jurisprudence, like that of every people in the early period of its history, was largely founded upon custom, partly indigenous, partly borrowed from other nations, and arranged, formulated, maintained, and perpetuated by sacerdotal influence. ...

Stephen

Riverwind · 05-30-2007, 02:59 PM

Quote:

Originally Posted by S.C.Carlson

Thanks, Pataphysician, for the quotes.

I second that... Thanks, Pataphysician. I was about to list them myself but decided to get a bit of sleep instead.

Quote:

That's why I was asking about "primary sources." All those references are contemporary secondary sources about the law.

Hmm... Perhaps "primary sources" and "secondary sources" are not the best phrases to use, but I'm not aware of anything better at the moment.

I suppose I did want "primary sources", but I am discovering that there may no longer be any. In this case, "secondary sources" (which makes me think of scholars writing about something in the past...) is what I am looking for...in other words, the earliest complete or partial descriptions of the Porcian Laws. Is this making more sense now?

I read excerpts from a search of the book linked to, above, by Toto (and I'm seriously thinking of purchasing it) and it went into great detail on the laws of the Republic (ie. before the Empire) of Cicero's time. Without the book, I cannot tell, but I guess I am wondering if the information for the Porcian Laws in this book was gleaned mainly from these "secondary sources" or if there are other sources that I am still unaware of...perhaps the book actually used the Justinian code supplemented by earlier references to the Porcian Laws. Then again, I still don't yet know if the Justinian code contains a description of the Porcian Laws. Is the Justinian code online? (...I'm looking these things up online as I get the time, but I'd appreciate any others who have more time doing so also...)

yummyfur · 05-31-2007, 12:39 AM

The listing I had at the top of my post are all the written sources known, So there is no clear references in Justinian's Body of Civil Law. The site I linked has a copy of a reference which cites for various Roman Laws, in many of these other laws there are references to parts of Justinian's Civil Law, so I think it's fair to say that that work was searched. The only caveat is that this work was printed in 1875, so any source found after that would not be referenced.

I would classify the sources for the Porcian Laws as both primary and secondary. Secondary in regards to it's establishment, primary in regards to it's possible usage and the political feelings about it during the periods they wrote in.

Also keep in mind, as the sources listed suggest, there are also precursors and possible additional laws, that can be looked at for more information and speculation. So the Porcian laws were preceded by Leges Valeriae, which they added to.

Sources for Leges Valeriae
http://penelope.uchicago.edu/Thayer/..._Valeriae.html

Also, you asked about exile, after reading the section in Sallust's, Catalinian War. I believe that during the Republic one needed to be sentenced in court for a capitol charge to stick, so one could voluntarily exile oneself(civil death, not available for sentencing) or commit suicide to avoid sentence. This would, during the republic, protect ones property and inheritances. Changes in this began during the first century CE and the Empire. This would be similar to our recent events in Texas, were Enron exec Kenneth Lay was convicted, but died before he was sentenced, and because of precedent in Fifth Circuit Court, that automatically vacated his conviction and regarded him as never being tried and convicted, this also impinges on civil suits against Lay, as one cannot seek punitive damages against a deceased defendant, only compensatory.

Also Justinian's Body of Civil Law is online in translation at
http://www.constitution.org/sps/sps.htm

Riverwind · 05-31-2007, 05:11 AM

Quote:

Originally Posted by yummyfur

The listing I had at the top of my post are all the written sources known...

Huh? Are you also Pataphysician? I don't see another post from your user name in this thread...

Anyway, thanks for the additional, useful information.

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05-29-2007, 08:36 PM	#11
Riverwind Banned Join Date: Feb 2007 Location: Allen, Tx Posts: 604	*Sallust, Catalinian War* (51): Certainly I can say about punishment, as things are, that in grief and misery death brings a rest from ones labors, not suffering; it undoes all the troubles of mortals; after that there is no place for either worry or joy. But by the immortal gods, why did you not add to the sentence that they should be scourged first? Is it that the Porcian law forbids it? But other laws say in the same way that condemned citizens should not forfeit their lives, but they can be allowed to go into exile. Or is that that being beaten is worse than being killed? .... After the republic grew and the power of civil factions increased as their numbers mounted, they began to afflict the innocent, and engage in similar behavior, and then the Porcian Law** and other laws were enacted, allowing exile for those who had been found guilty. If found guilty before Caesar, then as a Roman Citizen, wouldn't Paul have been exiled somewhere rather than beheaded? Where might he have been exiled? Was there a common place? Spain?

05-30-2007, 05:08 AM	#13
S.C.Carlson Veteran Member Join Date: Jan 2005 Location: USA Posts: 1,307	Thanks, Pataphysician, for the quotes. That's why I was asking about "primary sources." All those references are contemporary secondary sources about the law. As far as I am aware, the actual texts of most of the Roman laws before Justinian have not survived, mainly because the copying of obsolete laws would have only appealed to fairly narrow antiquarian interests. Stephen

05-31-2007, 12:39 AM	#17
yummyfur Regular Member Join Date: Dec 2002 Location: Chicago Posts: 351	The listing I had at the top of my post are all the written sources known, So there is no clear references in Justinian's Body of Civil Law. The site I linked has a copy of a reference which cites for various Roman Laws, in many of these other laws there are references to parts of Justinian's Civil Law, so I think it's fair to say that that work was searched. The only caveat is that this work was printed in 1875, so any source found after that would not be referenced. I would classify the sources for the Porcian Laws as both primary and secondary. Secondary in regards to it's establishment, primary in regards to it's possible usage and the political feelings about it during the periods they wrote in. Also keep in mind, as the sources listed suggest, there are also precursors and possible additional laws, that can be looked at for more information and speculation. So the Porcian laws were preceded by Leges Valeriae, which they added to. Sources for Leges Valeriae http://penelope.uchicago.edu/Thayer/..._Valeriae.html Also, you asked about exile, after reading the section in Sallust's, Catalinian War. I believe that during the Republic one needed to be sentenced in court for a capitol charge to stick, so one could voluntarily exile oneself(civil death, not available for sentencing) or commit suicide to avoid sentence. This would, during the republic, protect ones property and inheritances. Changes in this began during the first century CE and the Empire. This would be similar to our recent events in Texas, were Enron exec Kenneth Lay was convicted, but died before he was sentenced, and because of precedent in Fifth Circuit Court, that automatically vacated his conviction and regarded him as never being tried and convicted, this also impinges on civil suits against Lay, as one cannot seek punitive damages against a deceased defendant, only compensatory. Also Justinian's Body of Civil Law is online in translation at http://www.constitution.org/sps/sps.htm

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