COnTRATOS SWAPS

J U D G I N G L AT E RO M A N D I S P U T E S

Look, the first thing that happens in this affair is a quarrel over property. While each side feeds their cupidity by verbal abuse, momentum builds up for a battle. Then indeed the argument does grow into a contest. If only cupidity could be satisfied with that! Worse is to follow—while no one wants to lose out on a charge of false accusation, they come to blows. The slaves are given weapons, the neighbours are stirred into action, and one man’s life is traded for the sake of another man’s profit. Wine-induced madness gets to work and blood is poured out as the price for possession. Then at last a court is convened for the operation of the laws; an opportunity is sought for settling scores with a charge of homicide now added on.¹

According to the mid-fifth-century Gallic bishop Valerian of Cimiez, late Roman lawcourts functioned as arenas for the expression of social, rather than individual, conflict. Valerian’s comments (quoted above) were not made in a juristic treatise or textbook, but rather in the midst of a sermon against the sin of cupidity. Valerian sought to persuade his audience that Christian ethics could be practised in the context of their everyday life; hence he used the (common) homiletic technique of grounding his moralizing in vivid, realistic scenarios that his audience could imagine finding themselves in. Situations such as the following: a quarrel arises over property, verbal insults are traded, and the entire neighbourhood becomes involved. Those individuals who covet the property do not go to court to obtain it legally, but enter and

¹ Valerian of Cimiez, Homily 20. 3 (on 1 Tim 6: 3–10), PL 52. 752–3: ‘Ecce fit primum in hoc loco de proprietate contentio: et dum suam quisque cupiditatem verbis fovet, stimulum litis accendit. Crescit postmodum de contentione causatio: atque utinam hoc solum sufficeret cupiditati! Illud gravius est, quod dum nemo vult inchoatae calumniae facere iacturam, pervenitur ad rixam. Armantur servi, incitantur propinqui, et in alterius lucrum pectus opponitur alienum. Animatur vino furor conductus, et effusus sanguis fit pretium possessionis. Aperitur postmodum legibus forum; et dum ultionis locus quaeritur, congeminatur homicidium.’

seize possession through violence—possession being nine-tenths of the (Roman) law. Such a series of events—unlawful seizure and occupation of land followed by a lawsuit initiated by the dispossessed—appears in fourth-century Egyptian papyri such as P.Oxy. I. 67 ( 338).² In the case imagined by Valerian, the dispute only reaches a law court after the charge-sheet has been expanded beyond the original disagreement over property to embrace a criminal accusation of homicide. Thus, Valerian implies, the concrete case that the judge eventually presides over is as much about the hatred and enmities that have arisen within a face-to-face community as about ‘applying’ the Roman law of property. Valerian’s example is typical of late Roman legal disputes in several different ways. First, as Chris Wickham has argued with respect to later Lombard–Carolingian Italy: ‘Cases did not happen in a void; they happened between people who had lived together before and would live together again . . . They were part of the continuous processes of social interaction.’³ An analysis of how late Roman judges handled concrete cases and imperial ‘laws’ demands that we constantly look beyond the courtroom. Second, within the ‘continuous processes of social interaction’, individuals manipulate normative categories in order to achieve particular effects in particular situations.⁴ In other words individuals do not simply obey or break ‘the rules’; they also strategically choose between and manipulate sets of normative practices.⁵

A letter of Basil of Cappadocia gives us some sense of the range of normative socio-legal practices available for settling a typical grievance in the mid-fourth century.⁶ Basil writes from a small town not far from Neocaesarea, seeking the help of the then governor of Cappadocia,

² Different scenarios arising from the same series of events are envisaged in C.Th. 4. 22, with the rubric unde vi . . . (‘when by violence . . . ’), referring to the opening words of the relevant Praetorian interdict. See also C.Th. 11. 39. 12 (given at Constantinople,  396, to Aeternalis, Proconsul of Asia).

³ C. Wickham, ‘Land Disputes and their Social Framework in Lombard–Carolingian Italy, 700–900’, in W. Davies and P. Fouracre (eds.), The Settlement of Disputes in Early

Medieval Europe (Cambridge: CUP, 1986), 105–24, at 122.

⁴ D. Cohen, Law, Sexuality and Society: The Enforcement of Morals in Classical Athens (Cambridge: CUP, 1991), 32.

⁵ For the late Roman period, these sets of normative practices should also include those that seek access to ‘supernatural’ justice, e.g. through cursing tablets and judicial binding curses. See C. Humfress, ‘Law in Practice’, in P. Rousseau (ed.), The Blackwell

Guide to Late Antiquity (Oxford: Blackwell Press, forthcoming), and B. Shaw, ‘Judicial

Nightmares and Christian Memory’, Journal of Early Christian Studies, 11/4 (2003), 533–63, at 537.

⁶ Basil, Ep. 3, ed. and tr. Y. Courtonne, Saint Basile Lettres, i (Paris: Les Belles Lettres, 1957), 13–15.

Candidianus. A servant of Basil, probably to be understood as a slave, had apparently died whilst in debt. With no warning, the slave’s creditor (described by Basil as a ‘rustic’) had attacked Basil’s house, assaulting the women and stealing property over and above the amount owed. This act of summary justice was, of course, ‘illegal’, and Basil lists a number of legitimate strategies which the creditor could have alternatively chosen to pursue: he could have lodged a formal legal complaint with the authorities, or he could have approached Basil and negotiated a voluntary payment, or finally he could have threatened Basil with physical violence. Any of these three courses of action, Basil informs the governor, would have been acceptable. Basil is no doubt here exaggerating his ‘reasonableness’ in order to win the support of Candidianus—nonetheless the scenarios that he envisages gives us a concrete idea of the expected range of dispute settlement strategies: formal legal process (including formal arbitration procedures), private negotiation, and threats with menaces. Tellingly, the conclusion to the letter does not ask the provincial governor to institute a formal legal process against the ‘rustic’ attacker; rather Basil states that he would be happy if Candidianus would arrange for the assailant to be arrested by the local officials and locked up for a short period of time. Summary justice, without formal process, was ‘legally’ available to individuals such as Basil who had the right social and political connections.

A dispute may thus have had the potential to reach a court of law (i.e. the formal legal system offered a redress or ‘remedy’ that would cover the concrete situation) but it does not necessarily follow that a given individual would choose to initiate a legal process. Amongst other factors, the choice of whether to initiate a court case might be decided on the basis of expense—the high costs associated with late Roman litigation are well documented—or on the basis of patronage relationships.⁷ The decision could also be governed by less immediately obvious considerations. In De Moribus Manichaeorum 72 (written 388) Augustine claims that a member of the Manichaean elect, whom he himself had heard speaking ‘in the street of the fig-sellers’, slept with a dedicated virgin and the crime was discovered because she became pregnant. The virgin’s brother chose not to lodge a public accusation

⁷ Harries, Law and Empire, 100, and C. Kelly, Ruling the Later Roman Empire (Cambridge, Mass., and London: Harvard University Press, 2004), 67, 107–8, and 139–42, discuss the fees and expenses associated with late Roman litigation. See also C. Humfress, ‘Poverty and Roman Law’, in M. Atkins and R. Osborne (eds.), Poverty in

against the elect manichee ‘out of regard for religion’; but succeeded in getting the man expelled from the Manichaean church. In order that the crime might not be entirely unpunished, however, the brother made an agreement with some friends to have the offender beaten up.⁸ In other words, in Augustine’s account, the religious sentiments of the virgin’s brother did not prevent him from exacting his own revenge on the guilty party. Augustine is here seeking to score a polemical point against the Manichaean religio itself, by framing its adherents as both morally lax (the elect manichee) and hypocritical (the virgin’s brother); for our purposes, however, it is enough to note that in Augustine’s story the virgin’s brother had a potential case at Roman law, but he chose rather to exact justice through a mixture of religious sanction and summary violence.

Extra-legal considerations concerning dispute settlement are also apparent in a dialytike homologia (an agreement concerning a settlement) from Oxyrhynchus, dated 17 March 545.⁹ This papyrus records a complicated dispute between a monastery and a Constantinopolitan senator with landholdings in the Oxyrhynchite nome. The dispute never reached the courts and there is no ‘judge’ or ‘arbitrator’ involved in the case, nonetheless it was settled privately in full knowledge of the relevant civil law principles. In lines 140–76 of the papyrus, the monks who are acting on behalf of the monastery promise the senator’s heirs that they will abide by the agreement that had been reached:

for security of the matters acknowledged by them they call upon God as a witness and acknowledge that they abide by these terms, keep them, consider them binding for ever, and do not oppose them or any part or section of them, not at this time, not hereafter, not in a local court or one beyond the frontier, nor out of court, nor by petition directed to our victorious master [i.e. Justinian] . . .

The monks then go on to swear ‘that they will not make accusations among friends, nor impugn them [the terms of the agreement] or part of them, either at law or in holy churches, nor say that they have suffered

⁸ PL 32. 1375. On consecrated virginity in general see S. Elm, ‘Virgins of God’: The

Making of Asceticism in Late Antiquity (Oxford: Clarendon Press, 1994).

⁹ P.Oxy. LXIII. 4397, ed. and tr. B. P. Grenfell. Compare the 6th-cent. settlement,

P. Mich. 6922, ed. and tr., with introduction and commentary by T. Gagos and P. Van

Minnen, Settling a Dispute: Toward a Legal Anthropology of Late Antique Egypt (Ann Arbor: University of Michigan Press, 1994) and the mid-4th-cent. settlement, P. Mich. 4008, ed. and tr., with commentary by T. Gagos and P. J. Sijpesteijn, ‘Settling a Dispute in Fourth Century Small Oasis’, ZPE 105 (1995), 245–52.

any fraud or neglect’.¹⁰ Both sides in this dispute knew the power that could be gained by threatening an individual’s social reputation, whether the aspersions were cast in a lawcourt, amongst friends, or ‘in holy Churches’. P.Mich. XIII. 659 ( 527–38) records the details of another lengthy and complicated dispute, during which one of the parties had apparently ‘often used loud complaints in the Holy Church’ against the other, as well as making frequent approaches to the provincial governor. As Weber argued, ‘law embodies only one mode of social regulation’.¹¹

In arranging private transactions, such as loans, sales, inheritances, contracts, or pacts, many Romans, and not just the social elite, observed the legal procedures and conventions which they believed would make their actions efficacious and binding. Even when a private agreement made no reference to any substantive principles of Roman law, its contents could still become subject to legal dispute, according to the long-standing rule that ‘agreements made against the laws and constitutions, or against good mores (morals, custom), have no vis (force)’ (CI 2. 3. 6, Emperor Antoninus to the private petitioner Basilla,  214). To this end (as we shall see) individuals might consult notaries, advocates, or iurisconsulti for advice and help in conducting their transactions, and they might seek to formalize both verbal and written agreements with acts of oath-swearing and formal witnessing. One aim of this activity was, of course, to lessen the chances of any subsequent litigation—or as the parties to one early sixth-century dispute put it, to destroy ‘every seed of a lawsuit’.¹² This concern was nothing new: the terms of a Late Republican agreement conclude with the stipulation that, ‘Both fraud and the Civil law shall be remote from all this’.¹³ Agreements to stay away from the subtleties of the ius civile are also a relatively common feature of surviving late Roman contracts and private dispute

¹⁰ For further discussion see C. Humfress, ‘Law and Legal Practice’, 179–83. Gagos and Van Minnen, Settling a Dispute, 121–7, give a list of forty-one papyri recording late antique dispute settlements in Greek between 276 and 647.

¹¹ Cited from Cohen, Law, Sexuality and Society, 6. The use of public outbursts in church as a means of ‘legal redress’ also occurs in P. Lond. I. 77.

¹² P.Mich. XIII. 659, ed. P. J. Sijpesteijn, 1977. For discussion of this case see J. Gascou and L. S. B. MacCoull, ‘Le Cadastre d’Aphroditˆo’, Travaux et mémoires du

Centre de recherche d’histoire et civilisation de Byzance, 10 (1987), 103—58, with 10

plates, reprinted as SB XX 14669.

¹³ CIL vi/2. 8862, discussed by D. Daube, ‘A Corrupt Judge Sets the Pace’, in D. Nörr and D. Simon (eds.), Gedächtnisschrift für Wolfgang Kunkel (Frankfurt: Klostermann, 1984), 37–52 at 47; compare the elaborate stipulations in P. Mich. XIII. 663, an early 6th-cent. deed of sale for part of a house.

settlements. Column 1 of P.Oxy. I. 71 ( 303) refers to a contract for loan between a certain creditor Aurelius Demetrius and a debtor Aurelius Sotas, with the specific stipulation that repayment would be made ‘without an action at law, or any delay or quibble’. Sotas, however, had apparently defaulted on these terms: P.Oxy. I. 71 is in fact a petition addressed to the Prefect Clodius Culcianus, in which Demetrius seeks to initiate a formal legal process—alleging amongst other things that Sotas has taken advantage of his illiteracy. The petition also explains that Demetrius had threatened prosecution before the prefect when the ‘fraud’ was first detected, and Sotas had in turn pleaded that he might be given time to settle the debt ‘without the trouble of an action’. The notary or advocate who drafted the petition for Demetrius thus skilfully implies both that the plaintiff is a reasonable man, and that the prefect’s court offers his last hope of obtaining the justice that is his due. Petitioners could, of course, threaten their adversaries with ‘the trouble of an action’ at each stage of the initial court proceedings, right up until the moment at which the issue was formally joined (litis contestatio) before a iudex.¹⁴

Formal arbitration offered a further avenue of dispute resolution, without litigation in court. The procedures for formal arbitration, unlike ‘informal mediation’, were governed by Roman civil law.¹⁵ Both parties were required to swear mutual oaths (pactum compromissi) before the hearing began, thereby agreeing to be bound by their choice of arbiter(s) and the outcome of the arbitration. Penalties could also be agreed upon, in the event of any settlement being later broken. A private rescript issued in  293 clearly states that an ‘agreed compromise’ (transactio) is no less authoritative than a judgement (CI 2. 4. 20). The petitioner (a woman) had apparently originally asked whether it was possible to rescind an agreement ‘by stating that it was made in the second hour of the night’ (the Emperors’ answer is no!). In  539 Justinian confirmed all existing laws on formal

¹⁴ See Ch. 2 below. P.Oxy. XVI. 1876, details the preliminary stages for a proceeding for debt, before a provincial governor (c. 480). The creditor’s petition is formally read into the court’s records, followed by the magistrate’s order that the creditor and debtor should either arrange terms or come into court. See also P.Oxy. XVI. 1877 ( 488), where one of the named debtors is a Christian priest.

¹⁵ On formal arbitration see Harries, Law and Empire, 172–84 and J. Harries, ‘Resolving Disputes: The Frontiers of Law in Late Antiquity’, in R. E. Mathisen (ed.),

Law, Society and Authority in Late Antiquity (Oxford: OUP, 2001), 68–82. We will

return to formal arbitration procedures in Part II, in the context of the so-called episcopalis

arbitration, in response to an apparent ‘multitude of petitions’ received by his imperial bureau; according to the drafter of Justinian’s Novel, individuals were acting in ‘complete ignorance of laws and forensic convention’, by swearing ‘to accept arbitrators in whom no one should entrust anything without thinking more than twice about it’ and then refusing to agree to the outcome of the dispute (Novel 82. 11, Justinian to John of Cappadocia PP). The decision of an arbitrator who is completely ignorant of the law—but acts without deliberate fraud and in accordance with good mores —is valid according to the civil law, if the correct procedural formalities were observed in setting up the arbitration. As we shall see in Part II, those individuals who knew the inside of a courtroom were in high demand as ‘extra-judicial’ arbitrators.

When it came to settling disputes, not appearing as a litigant before a magistrate was thus a primary goal for many, if not perhaps most, inhabitants of the later Roman Empire. Late Roman bishops were keen to support this common-sense attitude with ‘Christian’ ethics based on scriptural precepts.¹⁶ Whilst expounding a homily based around Romans 12: 20, John Chrysostom reminds his late fourth-century audience that:

Many men, when they have a dispute with one another, save themselves loss, and alarm, and many risks if they come to a friendly understanding together outside the law court, the issue of the case turning out in accordance with the sentiment of each party; but if they severally entrust the affair to the judge the only result to them will be loss of money, and in many cases a penalty, and the permanent endurance of their hatred.

At this point those listening to the homily—baptized Christians, catechumens, and non-Christians alike—would no doubt have found themselves nodding in agreement. John’s specific moral lesson, however, is fully unveiled in the lines that follow: the Christian God ‘of peace and love’ urges us to be reconciled with our adversaries and banish all anger and bitterness from our souls. If, on the other hand, we ‘depart to that terrible tribunal in the other world’ whilst still embroiled in ongoing litigation, then ‘we shall ultimately pay the highest penalty at the sentence of the judge there’. Better to settle disputes quickly and privately in this life, than suffer inexorable punishment from the

¹⁶ e.g. Matt. 18: 15–17: disputes should be settled privately between individuals or within the (religious) community.

supreme judge in the next.¹⁷ John Chrysostom does not specifically allude to the delays that were a familiar characteristic of the judicial system, nonetheless his implication that a late Roman might die with a legal case still making its way through the bureaucratic courts is telling. Some even drew up their wills with the expectation that litigation would be necessary after their death: an Alexandrian’s will from January or February 325 included instructions for a child’s guardian to ‘go to law’ against a certain named individual (P.Oxy. LIV. 3756). Notwithstanding the preaching of bishops such as John Chrysostom in the imperial capital of Constantinople or Valerian in small-town Cimiez in Gaul, legal cases did, of course, reach late Roman courtrooms. It is to the subject of litigation and judicial practice that we shall now turn.

The system of courts in the later Roman Empire was tied to the administrative structure of the imperial bureaucracy; it grew up piece- meal and embodied practices and customs that could vary across place and time. It was an accepted fact that individual lawcourts, especially those of the Praetorian Prefects and the Emperor himself, had their own ‘forensic conventions’ with which the court’s permanent officials (the office staff and advocates, if not necessarily the iudex himself) would