Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13)
Letters of the law: Saturninus the helmsman, Pliny and Friends.
Sailors should be wary of trusting other sailors. This was the moral to be drawn from an exchange of letters late in the first century CE between a lawyer and a (now) anonymous client. The text, corrupted by centuries of manuscript transmission now lost to the record, prior to its incorporation in Justinian’s Digest of Roman Law in 533 CE, derives from the eleventh book in a collection of Epistulae compiled by Pliny’s distinguished older contemporary, Iavolenus Priscus, consul under Domitian and famous as a iuris peritus, a ‘man skilled in law’ or jurist:
Anonymous (we do not know the writer’s name) to his friend Priscus greetings (Anonymus Prisco suo salutem), [Seius] Saturninus the chief helmsman from the British fleet left in his will an inheritance in trust to his heir-executor Valerius Maximus, the ship’s captain, whom he requested to restore the inheritance to his son [Seius] Oceanus, when he had reached the age of sixteen. [Seius] Oceanus, before he reached the stated age, died; now, one Mallius Seneca, who says he is the uncle of [Seius] Oceanus, is claiming these goods on the grounds of close kinship, but Maximus the ship’s captain claims them for himself, because the person to whom he had been instructed to restore the property is now deceased. [I ask therefore] Do these goods belong to Valerius Maximus the captain and heir in trust or to Mallius Seneca, who says he is the uncle of the dead boy?
Priscus to his friend Anonymous greeting (Priscus Anonymo suo salutem): [I replied] If [Seius] Oceanus, to whom the inheritance left in trust by the will of [Seius] Saturninus should have been restored when he reached the age of sixteen by Valerius Maximus, the heir in trust, then died before he had reached that term of his age, the inheritance held in trust belongs to the person to whom the rest of Ocaenus’ estate belongs…(grounds for decision are highly technical)1
1Dig. 36.1.48 (greetings formula not in the Latin not included) Seius Saturninus archigubernus ex classe Britannica testamento fiduciarium reliquit heredem Valerium Maximum trierarchum, quo petit, ut filio suo Seio Oceano, cum ad annos sedecim pervenisset, hereditatem restitueret. Seius Oceanus antequam impleret annos, defunctus est; nunc Mallius Seneca, qui se avunculum Seii Oceani dicit, proximitatis nomine haec bona petit, Maximus autem trierarchus sibi se vindicet, ideo quia defunctus est is cui restituere iussus erat. [quaero ergo] utrum haec bona ad Valerium Maximum trierarchum heredem fiduciarium pertineant an ad Malliium Senecam, qui se pueri defuncti avunculum esse dicit. [respondi] si Seius Oceanus, cui fideicommissa hereditas ex testament Seii Saturni, cum annos sedecim haberet a Valerio Maximo fiduciario herede restitui debeat, pruisquam praefinitum tempus aetatis impleret, decessit, fiduciaria hereditas ad eum pertinent, ad quem cetera bona Oceani pertinuerint..
1 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13)
The text supplied above features some minor but significant departures from the version in the Digest. The most important of these, the restoration in italics of the epistolary greetings formula, not present in the text as we have it, is justified by the source reference to Epistulae 11 supplied by the Digest compilers: one characteristic of letters is that they are headed by a greeting from the sender to the recipient and there is no reason to assume that these were, in their original form, exceptional. The square bracketing of “I asked, therefore” and “I replied”, and of the nomen Seius reflects probable modifications by later jurists, who adapted the original letter form to the Q & A format of the Quaestio, question- form used in problem literature; and who had a professional liking for Seius as an imaginary character used for purposes of case discussion.
The exchange on Saturninus’ will is a business correspondence. There are no literary flourishes; the relevant facts of the case and the Anonymous’ options, as he saw them, are presented for Priscus’ opinion. The use of ‘nunc’ (now) and the present tenses show the case is under current consideration. Priscus’ opinion could be no more than advisory but, given his standing as an ex-consul, would be potentially decisive, if cited before an adjudicator. The Anonymous himself clearly had reservations about the claims of Mallius, whose name suggests an uncle on the mother’s side; despite his allegations of proximitas, he would have had little claim under the laws of intestate succession, which favoured claimants descended from a common male ancestor (agnates). Priscus, however, simplified matters by dismissing both claims in favour of the (unknown) owner of the rest of Oceanus’ property.
Business correspondence is pedestrian stuff, but this alone does not explain why the voluminous, albeit fragmentary, dossiers of lawyer-letters have been so systematically ignored by cultural historians. Part of the problem is the form in which the letters are preserved. In addition to the textual tampering noted in Saturninus’ case, the survival, in fragmentary form of the multi-book treatises and commentaries on Roman law of the iuris periti contemporary with the younger Pliny is due largely to Justinian, who ordered his legal administrators to collect and select extracts from legal writers to create his definitive statement of juristic law, the Digest (533 CE). In the Digest, where material was arranged by topic, not author, the individual identities of the long-dead ‘contributors’ were subsumed by the overall purpose of the compilation, to serve as a teaching book and a reference book for lawyers in courtrooms. In the 1880s, the German scholar, Otto Lenel, reassembled the juristic fragments and other testimonia to create a Palingenesia of legal authors, thus enabling them to be read in terms of authorial style and agendas. For this reason, it is Lenel, not the Digest, who is the sourcebook for what follows, although Digest referencing will be used, in accordance with general convention.
Justinian’s compilers employed a referencing system for each extract, consisting of author, book title and book number (e.g. for the Saturninus case, Iavolenus Priscus, Epistulae 11). It is thus possible to identify the authors and titles of numerous now largely lost works on law. These included a number of citations from and references to books of Epistulae, by lawyers from the time of Augustus
2 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) to the mid second century, when they seem to have abandoned the letter form as redundant for their purposes.2 Many such citations from letter collections are at second hand, (printed by Lenel in italics). However, as we have seen, even those texts, which purport to derive directly from a first or early second-century author were reworked at various points unknown over the succeeding centuries, either by the authors themselves or at a later stage in the transmission of the text, prior to its incorporation in the Digest.3 These problems with textual transmission affect our ability to identify letters not explicitly referenced as such, and will be discussed separately below.
Lawyers’ letters and the younger Pliny On what literary grounds, should the lawyers’ letter collections be discussed as relevant to the Epistulae of Pliny? As Roy Gibson stated, in his analysis of how a ‘letter’ should be recognised: ‘often the epistolary character of an individual text is guaranteed by its place within a larger group of epistolary texts, such as a letter collection…The importance of the letter collection, then, to guiding the reader as to the need to read its constituent texts as letters cannot be underestimated’.4 It follows that if lawyers chose to publish work as Epistulae, they intended to signal some kind of a generic identity with other letter- collections – and that the authors of other published Epistulae may also have interacted with them. Nor should an element of competition be ruled out. Whatever the dates of publication of Pliny’s books of Epistulae, they postdate those of Proculus (mid to late first century CE) and Priscus, and perhaps those of Iuventius Celsus as well. Pliny, therefore, would have been aware of their work, when publishing his own.
Lawyers’ letters did not count as letters only because they were collected and labelled as such. Criteria suggested by modern scholars for what a letter should consist of include that it is a written message from one person or group to another, which must be set down in a material form and requires to be conveyed from sender to recipient, who are physically separate and distanced from each other. Its identity as a ‘letter’ is signalled by the inclusion of a greeting formula
2 The earliest known jurist-author of Epistulae is Antistius Labeo, praetor under Augustus, whose Epistulae (number of books uncertain) are cited at Dig. 41.3.30.1; cf. also Gell. NA 13.13.2 (correspondence between Labeo and Ateius Capito, consul 5 CE). The second is Proculus (eleven or more books) credited in the second century with being the leader of one of Rome’s two rival law schools. His precise dates (and other names) are uncertain. 3 The extent of editorial intervention by Justinian’s lawyers is controversial; my view (which I believe is that of modern legal scholars in general) is that hypotheses of interpolations by the compilers should be rejected, unless there is incontrovertible evidence for their existence. 4 Gibson, Roy and Morrison, A.D. (2007)‘What is a Letter?’ in Morello, Ruth and Morrison, A.D. eds. Ancient Letters. Classical and Late Antique Epistolography Oxford, Oxford University Press: 1-16 at p. 15-16.
3 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) and it will normally be of relatively limited length.5 Literary variants, where the letter-form is also exploited for didactic purposes, include Horace’s Epistles6 and, in the sense that his son, absent in Athens, is the addressee, though not formally greeted, Cicero’s De Officiis. A ‘letter’ does not require an answer, although the point of the lawyers’ collections, like most of Pliny’s dealings with Trajan in Epistulae 10, is that there was an exchange of question and answer, with the advantage of status conceded to the respondent.
The lawyers’ letters of the latter part of the first century CE and the first part of the second, which can be clearly identified as such, fulfil all or most of the above criteria. The parties to an exchange are named or an exchange can be inferred, the letters were (presumably) conveyed from one to the other, the formula of greeting would have been standard, even when, as is usually the case, it has not survived, due to the problems of transmission to be discussed below. The letters are often (though not invariably) distinguished by their brevity and, unlike the bulk of Pliny’s efforts, their lack of literary pretension. Moreover, like the collections of legal Quaestiones and Responsa, associated by the legal historian F. Schulz with Epistulae as ‘problematic literature’, the letters were circulated with a view to educating readers in legal problems and their solutions, as well as enhancing the authority of the writer. They may also have had an open-ended quality; these exchanges were a conversation that could be continued indefinitely.7 But although Epistulae served the same didactic purpose as did lawyers’ collections of questions (Quaestiones) and answers (Responsa), the choice to publish Q&As as Epistulae offered a different signal to readers.8 In other words, authors of lawyers’ Epistulae hoped to be seen as, somehow, ‘like’ Pliny.
The centrality of the exchange format also affects how the two parties to a correspondence were expected to interact in terms of status. David Langslow has suggested, with reference to epistulae in scientific and technical literature that ‘the sender is never the less knowledgeable party’ (though he may pretend
5 Trapp, M.B. (2003) Greek and Latin Letters. An Anthology with Translation, Cambridge: Cambridge University Press: 1; Gibson and Morrison 2007, 3-13. One problem with identifying lawyers’ letters not referenced as Epistulae is that the greetings formula was one of the first elements to be left out. 6 Morrison A.D. (2007), ‘Didacticism and Epistolarity in Horace’ Epistles’, in Morello and Morrison, Ancient Letters, 107-31. 7 Oikonomopoulou, K, (2013) ‘Plutarch’s corpus of quaestiones in the tradition of imperial Greek encyclopaedism’ in König, J. and Woolf, G. eds. Encyclopaedism from Antiquity to the Rennaissance (Cambridge, Cambridge UP), 129-153; Jacob, C., (2004) ‘Questions sur les questions: archéologie d’une pratique intellectuelle et d’une forme discursive’ in Voglers, A. and Zamagni, C. eds. Erotapokriseis. Early Christian Question and Answer Literature in Context. Proceedings of the Utrecht Colloquium 13-14 October 2003, Leuven, 25-54. 8 Though note Varro’s confusing of genres with his Quaestiones Epistolicae, as recorded by Aulus Gellius.
4 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) to be).9 This was not the case with lawyers, because of the Q&A structure of their correspondence. Those clients who initiated an exchange were, by definition, the less knowledgeable; they hoped to profit from the respondent’s expertise. In these exchanges, therefore, the second sender, the respondent, was the expert – the same relationship that was conceded to Trajan by Pliny, as governor of Bithynia, in his Book 10. In a different category, however, were the exchanges between lawyers of equal expertise on points of technical interest: Aristo, Neratius Priscus and Iuventius Celsus exchanged questions and answers with each other for their own satisfaction.10 And of course it helped to have a lawyer in the family, hence Neratius’ response to a question from his brother Marcellus.11
Lawyers and friends The storm-tossed world of the sailors of the British fleet is far removed from the comfortable and refined existence of the younger Pliny. Yet the lawyers were part of Pliny’s social and literary world, and not always a congenial one. Pliny was distantly acquainted with Iavolenus Priscus (Epistulae edited in up to 14 books), who had held multiple provincial legateships under Domitian, was consul in 86 CE, and continued to flourish in the new era of Nerva and Trajan. Pliny recommended a client to his notice12 and, in a separate letter to the same client (Voconius Romanus), recounted an abrasive intervention from Priscus at a poetry reading.13 The same sense of muted disapproval is present in Pliny’s account of contentious senatorial proceedings, concerning an extortion trial, which involved an unseemly altercation between one Licinius Nepos and the praetor, P. Iuventius Celsus (consul II in 129), known to have published legal Epistulae in at least eleven books, early in his career, which he later re-edited and incorporated into his magisterial Digesta.14 By contrast, Pliny respected and regularly consulted a far less politically distinguished jurist, the eques, Titius Aristo, an unassuming character, who exchanged letters with two fellow-jurists,
9 Langslow 2007, 226. 10 Dig. 2.14.7.2 Aristo to Celsus; Dig. 19.2.19.2, Neratius to Aristo; Dig. 20.3.3. Aristo to Neratius. 11 Dig. 33.7.12.43. 12 Pliny, Ep. 2.13, although Pliny unhelpfully addresses a number of Prisci in his letters. For the identity of this Priscus see Sherwin White, A.N. (1966) The Letters of Pliny. A Historical and Social Commentary Oxford, 173-5. 13 Pliny, Ep. 6.15 on the public recitation by an eques, Passennus Paulus, of his elegiac verses. Pliny’s take on Iavolenus was that he was, in Sherwin White’s phrase, ‘rather odd’ (dubiae sanitatis), but nonetheless an illustrious administrator and imperial adviser, who gave responses on the ius civile in a public capacity (publice). On the influence of Horace and Propertius on Passenus’ poetry, see Plin. Ep. 9.22 14 Pliny, Ep. 6.5 on the disputed right of a former governor of Bithynia, threatened with prosecution under the extortion law, to call witnesses in his defence.
5 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) but is not known to have issued a collection of Epistulae under his own name.15 Pliny’s preference for Aristo is in line with his general liking for men of talent but relatively humble status, who had yet to make a name for themselves.16
Despite their lack of a senatorial career profile, Titius Aristo and Neratius Priscus (Epistulae in four books) both had influence; they were members of Trajan’s consilium and provided him with legal advice.17 But Aristo, unlike the competitive senatorial aristocrats, with whom Pliny associated, was a self- effacing type, and thus in need (or so Pliny imagined) of a testimonial to enhance his public profile.18 Aristo is not anywhere cited as an author of Epistulae, but a response in letter of his to Neratius (who did publish a letter collection) was cited later, and a number of responsa to named individuals are included in the Digest, which could derive from Epistulae. One in particular, to Cerellius Vitalis, preserved in Ulpian, addresses a real case, concerning a nuisance caused in a specific locality outside Rome, and thus resembles other consultations likely to have used the letter-form.19
Not all lawyers who wrote letters were men of the political or social standing of a Iavolenus Priscus or even a Pliny. Caecilius Africanus held a high status in the profession: Iavolenus’ pupil, the jurist Salvius Julianus (consul in 148) cited an opinion from the twentieth book of his Letters and he was also admired by Aulus Gellius.20 And the last lawyer to exploit the Epistula form, the long-lived Hadrianic and Antonine academic jurist, Pomponius, was perhaps the most inventive in his use of the genre, expanding the scope of the lawyer-letter (in at least twelve and perhaps twenty books) to cover imaginary cases and importing the occasional literary flourish, to make his text more accessible to a non-expert readership.21
Their collections of Epistulae, therefore, truncated and fragmentary though they are, deserve more attention for their importance in the history of Latin letters
15 Pliny, Epp. 5.3 and 8.14 are addressed to Aristo; Ep. 1.22 to Catilius Severus expresses anxiety for Aristo’s health and provides a character sketch. Aristo is known to have corresponded with Neratius Priscus and Celsus; his letters, however, may have been preserved in their collections, rather than independently. 16 Sherwin White (1966), 136, on Catilius Severus, Septicius Clarus and Pompeius Falco. 17 Dig. 37.12.5 (Papinian’s Quaestiones) Divus Triaianus...consilio Nerati Prisci et Aristonis.. 18 Pliny, Ep. 1.22. 19 Dig. 8.5.8.5. Aristo Cerellio Vitali respondit. Cf. Dig. 2.14.7.2 eleganter Aristo Celso respondit. 20 Dig. 40.2.5 Julian (Digesta 42) refers to Iavolenus’ practice in Africa and Syria, describing him as his praeceptor; Dig. 30.39.pr. where Ulpian (Ad Sabinum 21) cites Julianus’ citation; he had not seen the Africanus original. Also Gell. NA 20.1 21 Dig. 35.1.110; 40.4.61; 40.5.20 (letter as literary form, with Greek quotation about his enthusiasm for learning keeping him alive at 78 years of age).
6 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) than they have so far received. Not surprisingly, given the technical nature of juristic discourse, Roman legal writing has tended to exist in a disciplinary ghetto of its own, the property of lawyers, rather than of historians (who till recently exploited legal texts as ‘sources’, rather than studied them as text) or of literary scholars. Students of the ancient world, therefore, have not yet addressed the writings of the lawyers as fragmentary Latin prose literature. And, as we shall now see, the situation is not helped by the extra problems of transmission associated with the legal letter-form.
Problems of transmission Why did so many lawyers’ letters failed to advertise themselves as such in the texts as we have them? While the problem of the fragmentary state of juristic writing can be traced to the editorial depredations of Justinian’s compilers (to whom we also owe it that we have the texts at all), the material with which Justinian’s people worked had already suffered significant modification in previous centuries. Later generations of lawyers, who transmitted but also discretely revised the work of their predecessors, often for teaching as well as general advisory purposes, were not interested in the preservation of the letter- form, preferring to record questions and answers on legal matters under the all- embracing and more specifically ‘lawyerly’ quaestiones (questions) or responsa (replies).22 In order to suppress the ‘epistolary’ character of the citation, they employed a number of devices, which are evidenced in the Saturninus letter with which we began; they could delete the greeting (X to Y suo/ae salutem); they could omit the ‘question’ part of the exchange, leaving only the answer as Y replied (respondit) to X; and they could reframe the dialogue as self-referential, with the author providing both question (quaero, I ask) and answer (respondi, I replied). In addition, the Saturninus letter may have been modified for teaching or generalist purposes by the insertion of a standard juristic imaginary-family nomen, Seius (although the non-juristic cognomina Saturninus and Oceanus, and Mallius Seneca survived intact). As David Langslow has commented, with reference to dedicatory letters on scientific and technical literature, ‘a letter can become anything by trimming in the process of transmission. This has off- putting implications for one setting out to collect a corpus of letters on a given subject.’ 23
Problems of revision by the original author and then successor jurists abound. P. Iuventius Celsus provides salutary examples of how the existence of a consultation initiated and responded to by letter can be identified, even when
22 Cf. Dig. 46.3.94.3 (Papinian, Quaestiones 8) the Severan jurist Papinian’s citation of a letter from one Fabius Januarius with the greeting preserved; the text is then modified with the substitution of fictitious names Titius and Gaius Seius for the originals and the fiction of the jurist asking (quaero) and answering (respondi) in the first person. 23 Langslow, D. R. (2007), 212. See also Schulz, F. (1946), History of Roman Legal Science. Oxford, Oxford University Press: 224, ‘many of the responsa in our collections may thus have been given by letter, although the epistolary form has been expunged’.
7 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) the formal greeting has been edited out. As reported by Ulpian in the second decade of the third century, Celsus commented on contracts with minors ‘not inappropriately’ in two places, the eleventh book of Epistulae and the second of his Digesta.24 The two are the same: Celsus had incorporated his earlier Epistulae into his Digesta and modified the format accordingly. The initiator of the consultation was the praetor, Flavius Respectus, whose question is supplied in Ulpian’s paraphrase; then ‘Celsus said to Respectus’ – and the responsum is duly supplied. But at no point are greeting formulae used; they have been deleted as irrelevant to the main purpose, the statement of the point of law.
Ulpian provides further illustration of the processes of adaptation, with reference to two cases, both recorded in Celsus, Digesta 7, but lacking explicit reference to his Epistulae. Here, the indicator for the presence of an epistolary exchange the presence of real names involved with real, rather than hypothetical or general, cases, is one that must be used with care; there were means of ‘responding’ other than by letter. The first case does mention a letter: in a paraphrase, Ulpian states that Celsus dealt with a problem concerning partnership, with reference to a letter from Cornelius Felix, suggesting that in the original text, Celsus drew on his Epistulae collection.25 Secondly, on mandate, Celsus, as reported by Ulpian, stated that he had offered a responsum to one Aurelius Quietus, who had experienced a problem with his personal physician, concerning unauthorised building in his gardens at Ravenna. Although reference to the letter form is lacking, the case is brought by a named individual with a personal and specific problem; Celsus’ Digesta plays down the original prompt, which was probably a letter from Quietus, originally preserved and published as such in Celsus’ Epistulae, along with Celsus’ reply.26
It may be helpful to list various modes of epistolary survival, using Proculus, who may not have survived till Nerva’s reign but was the author of eleven books of letters (at least) directly cited by the Digest, Iavolenus Priscus, and again, the versatile Celsus. The Justinianic Epistulae referencing of Proculus and Priscus (whatever they seem now, these texts were letters once) allows some certainty as to the modes of modification employed, although not, for certain, their date or their extent. In citations from Iavolenus’ fourteen books of Epistulae, the letter form has almost entirely disappeared and is identifiable only from the reference.
The vicissitudes, therefore, of the survival of the lawyers’ letters may be categorised (as lawyers loved to do) in ascending order of modification, as follows:
24 Dig. 4.4.3.1 (Ulpian, On the Edict 11) unde non ineleganter Celsus epistularum libro undecimo et digestorum secundo tractat, ex facto a Flavio Respecto praetore consultus…Celsus igitur Respecto dixit… 25 Dig. 17.2.58. pr. and 1 (Ulpian, On the Edict 31) tractatum ita est apud Celsum libro septimo digestorum ad epistulam Cornelii Felicis 26 Dig. 17.1.16 ait Celsus..hoc respondisse se, cum Aurelius Quietus hospiti suo medico..in hortis eius quos Ravennae habebat..
8 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13)
1. The primary text in the Epistulae exchange would have contained the greetings formulae from both, a question in the first letter and an answer in the second. Closest to the originals, therefore, are texts where greetings are preserved from one or both parties, although there may be other evidence of interference.27 A few lawyers’ letters survived with their greetings formulae intact. the Flavian lawyer, Proculus exchanges greetings with clients or friends named as Nepos, Licinnius Lucusta and Atilicinus;28 and, perhaps the last lawyer to publish Epistulae, the Hadrianic academic jurist, Pomponius, recorded a salutation from one Iunius Diophantus and his own response – “I instructed him” (didici).29 Other exchanges, involving Aristo’s friend Neratius Priscus, are described in terms of responsa, but can be identified as Epistulae from the referencing by Ulpian as an intermediary, or by Justinian.30
2. No greeting survives (this applies to all following categories) but the text retains the use of first and second person, individuals and places are named, and the case is specific. On an appeal against the inappropriate construction by a named individual, Hiberus, of plumbing for baths against a party wall, Proculus is asked both for his opinion, which he supplies with a citation from an earlier jurist and creative use of analogy, and for his personal intervention with Hiberus: “I therefore ask that you should speak with Hiberus to prevent him doing this unlawful thing”.31 Proculus, therefore, was required to do more than provide advice; as a patron of his (unnamed) correspondent, he was expected to intervene actively and use his auctoritas on his client’s behalf to protect his interests. Another anonymous enquiry concerned a land purchase by a named person, Rutilia Polla.32 This consisted of a lake, the Sabatensis Angularis, and a band of land ten feet wide around it: what happened if the lake ‘expanded’? could she have an extra ten feet in addition to the submerged land? (The answer was no). The text as we have it appears to be an enquiry on behalf of Rutilia, perhaps by her agent, but it is possible that the original letter, prior to textual tampering, may have originated with Rutilia herself.
3. The case was originally specific and not hypothetical but the names have been wholly or partially edited out (along with the greetings, as usual) to make the
27 Dig. 23.4.17 Atilicinus Proculo suo salutem…respondit (move from greetings form to third person reply form) 28 Dig. 50.16.125 Nepos Proculo suo salutem; Dig. 23.3.67 Proculus Nepoti suo salutem (on a different case); Dig. 31.48. Licinnius Lucusta Proculo suo salutem…Proculus Lucustae suo salutem; Dig. 23.4.17 Atilicinus Proculo suo salutem..Proculus respondit (sic). 29 Dig. 4.4.50 Iunius Diophantus Pomponio suo salutem. 30 Dig. 19.2.19.2 est epistula Nerati ad Aristonem; on farm tools, the subject of the correspondence see also Plin. Ep. 3.19.7. Both Dig. 33.7.12.35 Neratius Rufino respondit and Dig. 33.7.12.43 Neratius Marcello fratri respondit, are ascribed by Ulpian (Ad Sabinum 20) to Neratius, Epistulae 4. On various Neratii Prisci, see Syme, R. (1957), ‘The Jurist Neratius Priscus’, Hermes 85.4, 480-93. 31 Dig. 8.2.13. qua de re volo cum Hibero loquaris, ne rem illicitam faciat. 32 Dig. 18.1.69.
9 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) text of general application. Celsus’ Digest, as we have seen, contained letters from his published Epistulae collection reworked as general cases. One such was the will of ‘a certain person’ (quidam), which left an unspecified sum of money to a real place, the res publica of the Graviscani, for supervision of repairs of the town’s road connecting it with the Via Aurelia. The “question was” (quaesitum est) whether the will was valid, as no sum was specified. “Iuventius Celsus replied” that the amount could be assessed in terms of what the job required, unless this was incompatible with size of the testatrix’ estate, in which case the amount could be assessed by a judge. The key word is ‘testatrix’. Although at some point a redactor of the text substituted the gender-neutral ‘quidam’ (rather than quaedam) for the name of the Anonyma at the start of the extract, his failure to follow through by substituting testator for testatrix allows us, still, to perceive a real woman patron of her community generously, if erratically, at work.33 And the testatrix is unlikely to be the only female, information on whose gender has been removed from the record by the substitution of the all-purpose quidam; the involvement of women, therefore, in the creation of case law may be seriously understated in the sources.
4. The opinion and the question are framed in hypothetical, general terms, signalled by the use of standard fictitious names, such as Titius/a, Seius/a. (This device allowed the creation of numerous family relationships, with legal implications; thus Titius could be married to Seia (but not Titia, who would be his daughter, paternal aunt or niece); Seia’s father would be Seius but her mother might be Maevia, with a brother called Maevius married to a lady called Attia and so on. Titius, Seius or Maevius may also have owned slaves called Damas or Sticho.) In these documents, there is no named questioner or greeting. The letter form, the author of the question and all details of the names and people involved have been deleted or reworked in general terms.
5. An opinion is offered in ‘response’ to a question. There were a variety of forms, already discussed, of question and answer and who is represented as posing the question. An exchange in Proculus, Epistulae 2 discussed a possibly hypothetical question from a now anonymous correspondent. ‘I ask’ what happens if a wild boar falls into a trap, which ‘you’ have set for that purpose, but ‘I’ released him and carried him off. Is he ‘yours’? Did ‘I’ steal him? And if ‘I’ then released him in a wood, what action (lawsuit) could you use against ‘me’? ‘He’ (Proculus) responded that the answer depended on the circumstances, such
33 Dig. 31.30. Possibly two stages of intervention (at least) here. Lenel opined that the reference to the size of the estate and referral to a judge was a later interpolation, ascribed to Tribonian. If this was a later gloss (but not necessarily Justinianic), the use of testatrix must predate the modification of the woman’s name, (or quaedam) to quidam, as the gender of the benefactress would not otherwise be ascertainable from the main text. Compare Paul’s revision of his Decreta as Sententiae (early third century CE): in Decreta 1 (Dig. 37.14.24) Camilla Pia appeals from Hermogenes (the judge) but as reworked in the Sententiae (Dig. 10.2.41), the case is general – ‘a certain woman had appealed from a judge’ (quaedam mulier ab iudice appellaverat).
10 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) as whether the land where the trap was set was public or private, ‘my’ land or another’s, did ‘I’ have permission to set the trap and so on, although Proculus’ general conclusion was that if ‘I’ have caught and secured the boar he is my property and so ‘I’ can sue. The switch from the first person ‘I ask’ to the third person, ‘he answered’ signifies minor textual corruption. The identity of the original questioner has been subsumed by the lawyers’ imperative to focus on the case, rather than the form of the original text.
6. An opinion survives in isolation and there is no evidence that it derives from a letter, other than the book reference. For example, Priscus ruled on a status case concerning a named individual, Statius Primus; his decision was published, without the question or supporting material, in his Epistulae 12.34
Such were the hazards confronting the survival of lawyers’ letters and their transmission to posterity. Aside from Justinian’s agenda of systematisation, which consigned texts not included in the Digest to official oblivion, it was lawyers themselves who subverted the integrity of their Epistulae as a distinctive genre. At the time of their publication, the authors of lawyers’ Epistulae were engaged in an exercise of self-promotion; not only was their learning and authority on display but also the extent of their friendships and the social importance of the problems on which they were consulted. Those who cited the contents of Epistulae later, however, were interested, not in the political or social prestige of individual jurists, but the vitality of the legal tradition as a professional discipline. While some later adaptators respected the wording of the texts transmitted to them, there was no obligation on them to do so. Greetings formulae disappeared; the recording of the names of those whose letters had raised questions became a matter of chance; the context in which a responsum was issued was excluded as irrelevant. Even the character of legal Epistulae as a two-way exchange was subverted; in the last decades of lawyers’ letters as a distinct genre, Pomponius’ letters discuss hypothetical cases, for which no initial epistolary prompt was required.35
It follows that, due to the problems of textual transmission, the general criteria outlined above for identifying “letters” require modification. Texts deriving from collections referenced in Justinian’s Digest as Epistulae were letters once but may no longer look like letters at all (i.e. they may lack greeting formulae, the name of the initiating party; they may also be quoted in paraphrase by a later author, who describes his source as an epistula). The text must, still, be a written message conveyed from sender to recipient and the two must be physically separated; in addition, there must be evidence of an exchange between the
34 Dig. 28.5.66. Statius had claimed an hereditas, but was not entitled to it, because he had not been instituted as heres; it did not help that he had received a legacy or been charged with the care of a freedman. If the will did not manumit him, he was still a slave. 35 Dig. 35.1.10 (Titius); 40.4.61 (Stichus); both are imaginary characters used as types in legal argument. For Pomponius’ other law letters, see Dig. 40.5.20; 4.4.50.
11 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) named initiator of the consultation and the respondent. The case under discussion in its original form must have been specific, involving named individuals and/or locations, but may no longer appear to be so.
Behind these often dry documents can be seen the contested realities of people’s lives. Acts of patronage are reflected in the legal world; the Anonyma testatrix seeks to help her fellow-townsmen, the Graviscani, with their road, but omits a crucial detail; the concerned neighbour of the obtrusive bath-house seeks both personal and patronal help from his ‘friend’ Proculus. Residence in town or Italian countryside each had their trials. In Minturnae, a real case referred to Pliny’s friend Aristo, tenants of an apartment over a cheese shop complained of nuisance from the fumes exuded from floor below – with what effect is not known.36 In hunting country, land does not advertise to the huntsman its legal status (public or private) or ownership; who then owned the wild boar in the trap who was let go in the wood (a question also of potential interest to a modern animal rights activist)? And what of contrasting perspectives on a lake view? When Pliny looked at a beautiful lakeside house, he thought of delightful villas and local stories of floating islands, all consigned to elegant letters;37 Rutilia Polla or her lawyer worried about how much she owned of a lake shore.
Pliny and the lawyers The jurists of Pliny’s Letters are literary constructs, as well as real people. Early in the reign of Nerva, Pliny worried over the health of his friend, Titius Aristo, whom we have already met exchanging lawyers’ letters with Neratius Priscus and Iuventius Celsus. Pliny exploits the occasion to create a literary word- portrait of a man who was not only a friend but also, for these purposes, an idealised stereotype. Aristo was a very different type of jurist from his great master, the consular jurist C Cassius Longinus (consul suffect 30 CE). Pliny’s construction of the jurist type, of which Aristo was an exemplar, shows him not as a narrow specialist but as a good man, a learned polymath and philosopher.38 Aristo, wrote Pliny, had no equal in moral character and wisdom; he was an expert in literature and literary culture in general (bonae artes), as well as history. He had wide experience of private and public law and was always on hand to give detailed consideration to any obscure point bothering Pliny. His learning was placed at the service of his legal clients generously but he avoided ostentation, did not frequent the Forum or gymnasia as more high profile careerists did and preferred the simple life.39 Because of his possession of the four cardinal virtues, goodness, duty, justice and courage, he was more truly a philosopher than many who vaunted themselves as such.
36 Dig. 8.5.8.5. This is recorded as a responsum, but the detail suggests a real case, perhaps originally submitted to Aristo by letter. 37 Plin. Ep. 8.20 (Lake Vadimon); 9. 7 (two Plinian villas on Lake Como) 38 Pliny, Letters 1.22. The addressee was L. Catilius Severus Iulianus Claudius Reginus, consul in 110 and 120, Prefect of Rome under Hadrian in 137-8. See A.N. Sherwin White, The Letters of Pliny. A Historical and Social Commentary, Oxford: Clarendon Press, 1966, 136-8. 39 For show-offs, see Pliny, Letters 1.10.6 (Euphrates) and 2.3 (Isaeus).
12 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13)
Behind this catalogue of admirable qualities is an implicit acknowledgement of an underlying weakness in the public profile of jurists as a class. The apolitical eques Aristo was out of step with the performance culture of his age, being more retiring and therefore liable to be overlooked; he could not expect to impose himself on the spectacle culture that was Roman public life.40 Pliny was well aware that there were set ways of being nice about his friends and that the choice of qualities and attributes mattered. Pliny therefore fashions a representation of a jurist, which implicitly counteracts the downsides of the juristic stereotype as pedantic and obscurantist, a type memorably created in Cicero’s attack on Servius Sulpicus Rufus in the Pro Murena in 63 BCE.41 Aristo is acquitted of the narrowness, which could attach to the figure of the lawyer through the emphasis placed on the breadth of his culture and the nobility of his character. He is portrayed as socially useful, a man who helps his friends and clients as all good patrons must. But jurists qua jurists worked behind the scenes; it was advocates, like Pliny himself, who often exploited jurists’ specialist knowledge to acquire celebrity status for themselves through public pleading in famous cases. Still, Pliny insisted, there was much to be said for the quiet life: the publicity-averse Aristo avoids showing off because his integrity and simplicity of life reflect the values of an earlier, less self-seeking age.42
For Pliny, it was axiomatic that the authors of the lawyers’ letters were also men of broad culture. Sensitive as he was to the approbation of audiences of his public readings, Pliny worried when he heard that Aristo had criticised him for acting in a manner inappropriate for a senator by giving recitations of his poetry to a wider audience; his list of precedents justifying his behaviour (all by then deceased) is a measure of his respect for Aristo’s erudition, as well as his desire for approval.43 But more significant and more extensively discussed is Pliny’s consultation of Aristo after the event, concerning his manipulation of a senatorial vote on the fate of the freedmen of the (allegedly) murdered Aemilius Dexter. Here his choice of recipient was influenced by Aristo’s connection with the most austere champion of the relevant legislation: as Tacitus would record, C. Cassius Longinus had in 61 CE insisted on rigorous enforcement of the SC Silanianum, which condemned to death all members of the household of a murdered man, who were under the same roof (in this case, over four hundred lives, including those of women and children).44
40 For jurists as failed advocates, see Quintilian, Inst. Or. 12.3.9. Quod si plerique desperata facultate agendi ad discendum ius declinaraverunt. 41 Cic. Mur. 22-8. 42 Sherwin White (1966), 69 observes that Pliny preferred the socially less eminent Aristo to the more powerful senatorial jurists of the time, notably Iavolenus Priscus and Neratius Priscus. See also Sherwin White, 136, above , n.8 43 Plin. Ep. 5.3; see Morello, R. (2007), 176-7. 44 Whitton, C. L. (2010) ‘Pliny, Epistles 8,14: Senate, slavery and the Agricola’, JRS 100; Harries, Jill (2013), ‘The Senatus Consultum Silanianum: Court Decisions and Judicial Severity in the Early Roman Empire’, in du Plessis, Paul (ed.), New Frontiers (Edinburgh: Edinburgh UP), 51-70.
13 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13)
Pliny, Letters 10 and lawyers’ Epistulae Not all lawyers received the favourable treatment accorded to Aristo; neither Iavolenus Priscus nor Iuventius Celsus emerge well from their cursory appearances in Pliny’s oeuvre. Yet it is likely that he knew their work. So did this provoke a literary reaction on Pliny’s part, perhaps with competitive overtones motivated by his covert distancing on a personal level from them and their values? One section of Pliny’s correspondence in particular, Letters 10, shares characteristics with the business-like exchanges of legal experts with their clients and stands apart from the previous nine books. Whether or not Pliny himself lived to edit it (and there is no direct evidence that he did not), the collection is exceptional, in Plinian terms, in its exclusive focus on Trajan as a correspondent and in the structure of much of the book from letter 15 onwards as a series of exchanges between Pliny, as governor of Bithynia, and his emperor on matters concerning the administration of the province, in which both parties are given a voice.
Unlike the previous nine books, the format of Pliny’s Epistulae 10 reflects the habitual practice employed in contemporaneous exchanges between lawyers and their colleagues or clients, of which the Saturninus case, cited above, is an unusually detailed example. These exchanges, unlike others, which might be designated Quaestiones or Responsa (questions or answers) were explicitly categorised and published as Epistulae, and included both the question (from X to Y) and the answer (from Y to X). This exchange format, while not perhaps unique to the legal letter collections, was one of their most prominent characteristics.
The format of Pliny, Letters 10 therefore challenged comparison with the lawyers’ letters. The comparison, however, was to be made on the basis of a set of differences, all of which worked to Pliny’s advantage. The first was that this was the real world of the imperial administrator, not that of the academic jurist, and the Roman law of the jurists was one legal system among many. Pliny, therefore, unlike the Rome-based jurists, had to negotiate the conflicting demands of competing legal systems. Most Bithynians lived under local law, and relatively few exchanges related directly to legal questions concerning the Roman ius civile. Through decisions of governors and judges, which reflect the crucial but largely undocumented expansion of Roman legal usage in the non- Roman provinces,45 the lines between local and Roman rules and conventions were increasingly blurred. There was, for example, growing confusion as to the applicability of pontifical law in the provinces. Could a temple be removed to accommodate a new forum at Nicomedia?46 Pliny’s worry was that the terms of the dedication rendered the ground on which it stood ‘sacred’. The reply from
45 Plin. Ep. 10. 68. secundum exemplum proconsulum. See Harries, Jill, ‘Roman law from city state to world empire’ in Duindam, J, Harries, J, Humfress, C. and Hurvitz, N. eds. Law and Empire. Ideas, Practices, Actors, Brill 2013, 45-62. 46 Plin. Ep. 10.49, reply at 10. 50. Cf. Epp. 10. 70 and 71, a more rigorous questioning of the fate of a temple to Claudius at Prusa.
14 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13)
Trajan, or a legal adviser, reflects the concise style of the Rome-based jurist: ‘ the land of a non-Roman city is not legally capable of being dedicated as can take place under our law’, a hard line that would be contradicted a few decades later by the jurist Gaius’ statement that consecrated provincial land, while not technically sacrum, would be regarded ‘as if’ sacred.47
Pliny had therefore to decide, not only on interpretation of law, but which law to follow. As was the case in legal discourse generally, the citation of authoritative texts and precedents was important but Pliny faced the extra problem of deciding on the applicability to Bithynia of previous judgements issued for other provinces. For example, when the status of foundlings and foster-children was at issue, Pliny had heard read out letters from Vespasian to the Lacedaemonians, of Titus to them and to the Achaeans and of Domitian to the two proconsuls of Achaea, but none applied directly to Bithynia.48 Equally vexatious was the interplay between the laws of the free cities, which were distinct from the Roman system and inconvenient proconsular precedents. On the question raised by Pliny of which creditor had prior claim for recovery of money owed from contracts of hire and sale, and the previous practice of proconsuls in favouring the rights of the cities over private claimants, Trajan, or his jurist, produced a characteristically terse jurist’s response: the legal rights of the cities can be determined only by reference to their own laws and the emperor has no right to overrule them.49
Pliny’s exchanges with Trajan also diverged from the discursive conventions of juristic discourse, in which questions could always have alternative answers, and could be asked again of other people. While jurists offered authoritative advice, Pliny’s questions on law were dictated by the onus on him as governor and supreme judge, not to advise but to adjudicate and the involvement of an emperor, Trajan, ensured that the respondent would have the last, definitive word.50 In some cases, that word could be backed by official action by the emperor’s staff; when the community of Nicaea claimed the estates of citizens who had died intestate, contrary to the principles of Roman law, which supported the rights of agnate relatives to inherit, two named imperial procurators were co-opted onto Pliny’s council of advisors to help sort out the
47 Solum peregrinae civitatis capax non sit dedicationis quae fit nostro iure. By contrast, Gaius, Inst. 2.5-7a defines the situation more flexibly a few decades later: ground is sacred only if consecrated by the authority of the Roman people, so in the provinces such ground is not strictly sacrum but ‘pro sacro habetur’. 48 Plin. Ep. 10.65.3 49 Plin. Epp. 10. 108 and 109. 50 It is unlikely that Trajan was personally the author of every letter. For the ‘prosy clerk’ in charge of routine replies, see Sherwin White (1966), 615, on Epp. 30, 32, 78, 117, 119. For Pliny’s preference for a definitive general imperial ruling over exempla, individual precedents, see Ep. 65.2 quia nihil inveniebam aut proprium aut universale quod ad Bithynos referretur, consulendum te existimavi…neque putavi posse me…exemplis esse contentum.
15 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13) dispute.51 The outcome of an imperial decision was predictable; the efficacy of a jurist’s advice, when cited by an advocate before a judge, was not.
Conclusion The fragmentary collections of lawyers’ exchanges on legal points and cases with clients and friends formed in their own time an impressively large corpus of collected wisdom. Given their volume and their authorship, they could not have been ignored by contemporaries. Though they survive now only in fragmentary form and have been made subject to the vicissitudes of textual corruption, accidental or deliberate, they provide a window on the lost world of the Roman ligitant and the problems he or she confronted, as property owner, builder, city representative or as the flat-dweller harassed by inconsiderate neighbours. The political and social eminence of the lawyer-authors would have ensured a readership among their contemporaries for their collections, with the hope that they would inform generations of lawyers thereafter, and their choice of genre invited comparison with other, less specialist compilations.
That challenge was taken up by Pliny’s (or, possibly, his executor’s) choice, to record his correspondence with Trajan as a series of questions (with some reports also included) and imperial answers. Like the lawyers’ letters, Pliny’s Epistulae 10 was an exercise in experimentation with the epistolary genre. There were no other precedents or parallels for the Q&A form, but experiments in Epistulae as poetic, satiric or didactic by Horace (Epistulae) and Seneca (Epistulae Morales) demonstrated the potential diversity of the uses to which ‘letters’ could be put. Not all such experiments would work in the longer term. From the mid second century onwards, jurists recognised that the Epistulae genre was superfluous to requirements and were content to approach problem- solving for didactic purposes through the more convenient format of Quaestiones and Responsa.
By echoing the lawyers’ epistolary use of Q&A, Pliny trumped the lawyers’ epistolary competition by making the subject of his exchanges – with Trajan, no less - the record of a provincial governor at work, dealing with complex practical problems as they arose, and with the emperor constantly on call. While it is possible that his personal reservations over the characters and conduct of Iavolenus Priscus and Celsus in particular may have lent a competitive edge to Pliny’s enterprise, Pliny also brought to his collection a formidable literary reputation, which the jurists, noted if not notorious for their dry style, could not hope to match. In the end, Pliny emerged the winner; he is read and studied and the letters of Priscus, Celsus and company are not (at least by classicists). Yet, without the writings of the lawyers, we would be far less well informed about Roman law and legal culture in the time of Nerva, Trajan and Hadrian; and we would also know significantly less about Pliny.
Jill Harries
51 Plin. Ep. 10. 84. The two procurators were Virdius Gemellinus and Trajan’s freedman Epimachus.
16 Jill Harries: ‘Letters of the Law: Saturninus the helmsman, Pliny and Friends’ Working Papers in Nervan, Trajanic and Hadrianic Literature 1.15 (2/12/13)
St Andrews, 2nd December 2014
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