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I. Introduction
From the evolution of the Roman society as a Republic to an Empire, the Roman
Army was instrumental in the success or failure of the Roman state. As one of the
greatest militaries of all time, the primary focus of the army was to conquer lands and
people to further the state’s agenda. Discipline, strength, fraternity, and loyalty were
the pillars and glue that held the army together. However, militaries also are a direct
reflection of the political world they inhabit. Over six hundred years, many changes
took place in the Roman government, none more important than the fall of the
Western Roman Empire. By comparing texts written in 105 BC and 530 AD on a
variety of topics, a larger picture of the roman military, and the roman world as a
whole can be seen.
Rufus’s Military Laws were used as a guide post for the discipline of the Roman
Army at the end of the second century. Stringent guidelines were in place in order to
keep order in a highly stratified military group. By comparing these Laws with the
laws with writings Justinian’s Corpus Juris Civilis, it is possible to trace the social
and political changes that had a drastic effect on the composition and structure of the
Roman Military. These changes made the army at times more, and at times less,
effective in combating threats from both inside and outside the empire. Previous
scholarship focuses on the effect the barbarians had on the military and the
subsequent fall of the Empire, but ignores the foundations of Roman Military Law,
and its’ fundamental base of soldiers.
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“War, inherently involves destruction-of life, property and old patterns of
behavior.”1The
Roman military was one of the most well trained and finely tuned martial structures of all time, and was responsible for protecting and enforcing laws over one of the largest empires the world had ever seen. Unfortunately, there is very little scholarship regarding a comparative analysis for Roman warfare that looks directly at the legal aspects, due in large part to the sheer size of the Empire, which spanned from Scotland to the Middle
East and Germany to North Africa.2 The longevity of the Roman state also contributes to the lack of scholarship. From the beginning of the Republic around 508 BC to the fall of the Western Roman Empire in the fifth century AD span roughly one thousand years and the Empire continued in the East for much longer. Throughout this period, the roman army was constantly evolving in both training and structure, as well as law and discipline.
There is much debate surrounding the author of the Military Laws of Rufus. Some historians believe it to be Sextus Rufius Festus, a consul under Valentinan II, or an unknown officer under the Emperor Maurice. This last one can be discounted as
Justinian, who was an Emperor before Maurice quotes Rufus in his Digest.3 Most scholars think the author of the Military Laws of Rufus was Publius Rutilis Rufus, a consul during 105 BC . Born in 158 B.C. Publius Rutilis Rufus served in the military,
1John Patterson, ed. John Rich, and Graham Shirley, "Military organization and social change in the later Roman Republic", in War and Society in the Roman World. 5 ed. adstow, Cornwall: T.J. Press Padastow, 1997. 93.
2Victor Davies Hanson. "The Journal of military history: The status of ancient military history: Traditional work, and recent research." The Journal of Military History no. 2 (1999): 63, 380. 3 Pat Southern. The Roman army: a social and institutional history. Santa Barbara, Calif.: ABC- CLIO, 2006. en: Brill, 2011. 145.
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most notably under the younger Scipio in the Numantine War of 134 BC. In 105 BC, during the time leading up to the Social War, he was elected to a consulship and spent part of his time restoring the order and discipline of the army and creating a manual for drill. After his consulship, he served as a legal advisor to the governor of Asia, where he tried to protect the public from extortion by the upper classes, specifically the publicani.
This angered the equestrian order, which the publicani belong to, and Rufus was tried and convicted (the equites also made up the judges) and exiled in 92 BC.4 Rufus was a unique blend of military man and scholar. Victor Hanson suggests that the reason there are so few classical military historians is that the best ones require not only an education in discourse, but also hands on experience in military affairs.5 He cites N.G.L Hammond or
W.K. Pritchett as more modern examples of true ancient military historians, but Rufus is perhaps the best example of a legal minded military scholar. Rufus’s drill book was written in a chaotic time, not only for the Roman Military but also for Roman Society. 6
The beginning of the first century B.C. was a tumultuous time for the Roman
Republic. Massive power plays between Lucius Cornelius Sulla and C. Marius’ were leading up to The Social War which would that spanned three years and forever changed the shape of the Roman state. Mass political and social reforms were enacted, shifting the power structure between individual social classes. During the second and first centuries
B.C., Rome had a disproportionately high citizenry enrolled in the army, with
4 John H. Arms. Romans on the Bay of Naples; a social and cultural study of the villas and their owners from 150 B.C. to A.D. 400. Cambridge: Harvard University Press, 1970. 31. 5 Hanson, "The Journal of military history: The status of ancient military history: Traditional work, and recent research." 380. 6 Hanson, "The Journal of military history: The status of ancient military history: Traditional work, and recent research." 379.
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mobilization comparable to countries in Europe from 1914 to 1918.7 This is a change from the middle republic era in which the army more closely resembled a “citizen’s militia”.8Although the enrollment numbers ranged anywhere from twenty-six percent during the second century to six percent before the Social War that began in 91 BC, the roman military was still one of the most active during the time period.
Towards the end of the Republic, the army was a means of increasing social standing within the class structure. One of the features of the Roman republic was a stratified society between rich and poor, and the army was a means of gaining wealth through pay and, later, through land grants from the Empire. Promotion, at least in the early days, was based on skill, and “an able and courageous soldier could gain promotion to the rank of centurion after fifteen or twenty years’ service.9 Up to a half of these members would later gain yet another promotion and gain entrance into the equestrian order, allowing for civil offices in town. This allowed for their children to enter the senate in the next generation. This system however, would not survive for long, and eventually the polarization between the rich and poor would grow ever wider due to the influx of imperial wealth coming from the farthest reaches of the empire.10 This system however, was not limited solely to citizens of the empire, but also individuals from outlying areas.
7John Patterson, ed. John Rich, and Graham Shirley. "Military organization and social change in the later Roman Republic." In War and Society in the Roman World. 5 ed. adstow, Cornwall: T.J. Press Padastow, 1997. 93. 8 Patterson, “Military organization and social change in the later Roman Republic.”, 95. 9 Patterson, “Military organization and social change in the later Roman Republic.”, 97. 10 Ibid.
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The Roman Army also posed a unique opportunity for provincials. In comparison to those centurions whose families would eventually be allowed into the ranks of the senate, provincials would be integrated into the Roman society, gaining rights of citizenship after service. As time progresses, less and less of these provincials join the army, to be replaced by federates.11 These federates were made up mostly of members of defeated barbarian clans that were recruited by individual generals. These federates posed a unique challenge for their superior officers, and would eventually be responsible in part for the fall of the Empire.
The Empire is a lot different six hundred years after Rufus writes his military drill.
The
Republic is gone and the Western Empire has fallen to the barbarians. Two hundred years have passed since the seat of the Roman Empire has moved to Constantinople, and
Justinian is a very different Emperor then his predecessors. Justinian is one of the most interesting Roman Emperors, he served as co-ruler with his uncle Justin, and upon
Justin’s death became Emperor unopposed on August 1, 527. In keeping with the traditionalized Christian Orthodoxy of the Emperors beginning with Constantine,
Justinian is of the Caledonian orthodoxy, the two natures of Christ belief, while his wife
Theodora was a Monophysite. Justinian’s approach to religion was much more “high- handed” then previous emperors.12 Justinian and Theodora worked together to expand the influence of their own beliefs as well as to stamp out the more radical Christian belief
11 Wolfgang Liebeschuetz, ed. John Rich, and Graham Shirley. "The end of the Roman army in the western empire." In War and Society in the Roman World. 5 ed. adstow, Cornwall: T.J. Press Padastow, 1997. 266. 12 Stephen Mitchell. A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world. 1. publ. ed. Malden, MA [u.a.: Blackwell, 2007. 129.
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systems. In 529 Justinian passed a law forbidding pagan practices and forced former practioners to convert to Christianity. Additionally, those countries that were conquered or wish to form alliances with the Eastern Roman Empire were also expected to convert.
The Tzani people in Colchian were converted to Christianity, enlisted in Roman levies and joined Rome against its enemies.13 Economic partners were also encouraged to convert, as the Ethiopian and Yemen governments that were converted to Christianity in order to cut in on Persia’s silk trade show.14
The Corpus Juris Civils was published in the mid 6th century by the Emperor
Justinian, and is the first of its kind in terms of documentation. It consists of four parts, the Codex, the Digest, the Institutes, and the Novel. The Codex was published in 529 and it contained the imperial renouncements, much like executive orders, back to the time of
Emperor Hadrian in 117 AD. The Codex is primarily made up of these types of orders, but it also contained a large collection of letters from the Emperors to others, sometimes counts or dukes, sometimes soldiers and sometimes to the Praetorian Prefect. Most of these documents deal solely with the legal proceedings and the rights of military personal. The Digest was published in 533, with texts dating mostly from the second and third century and comprised almost exclusively of opinions from legal scholars. These were lifted directly from the original source documents. In 530 and 531, Justinian published fifty decisions which resolved the conflicts between these authors in the Digest and upon publication these documents gained the force of law. The Institutes were primarily taken from Gaius’s institutes, and were a collection of juristic writings used as
13 Mitchell A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world, 132. 14 Ibid.
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a textbook for law students. They were completed in 533 and passed into law along with the Digest. The Novellae were the laws passed by Justinian after 529 and as such could not be included in the Codex. These laws were the first of their kind and provided the citizens with a written collection of the laws they were forced to abide by.
While the political structure of the Eastern Roman Empire was clear, the population
of
Constantinople was facing many changes and unrest within the city’s walls. While
Justinian may have liked to present a unified front in terms of Christian Orthodoxy, the reality was far messier. Constantinople was a melting pot of different beliefs, including paganism in some areas, and all his attempts to stamp out the dissenters within the city’s walls would prove unsuccessful. The Persian threat was looming over the Empire from the East, and few could forget that the seat of the Roman Empire one hundred years before now was under the control of barbarians. Coupled with this were the social dissention among the political factions within the city, leading to one of the bloodiest days for the Constantinople population, and a much debating subject among historians.
The Nika (meaning victory) rioting occurred over a week long period in January of 532. Justinian had been curbing partisan votes since the early 520s, and had taken action against the public factions since becoming emperor.15 In January of 532, during one of the many games held during the Roman year, two factions, the greens and the blues, who represented different groups of the population rioting in the stands. This was not unheard of as major riots had occurred in Constantinople in 496, 501 and 507, and
15 Mitchell, A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world ,136.
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troops were often called in to deal with riots, not only in Constantinople, but Antioch and
Alexandria as well.16 These factions were really the only means of organizing the citizenry to action, as there was no other common factor in which the population could be divided. By this time the Roman government had changed its operating procedure, removing the constitutional buffers between the Emperor and the people, and business was usually conducted inside the palace walls.17 These factions rioted after the games on
Saturday January 10, leading to the arrest of seven of the ring leaders five of whom were hanged.18 So began a conflict between the citizenry and Justinian, with demands of pardon for the two surviving leaders and the dismissal of the praetorian perfect, which
Justinian agreed to. However, the riots did not stop, and Justinian sent in his general
Belisarius and his troops, leading to the death of over 30,000 individuals.19 Scholars still debate over Justinian’s handling of the Nika riot and whether or not the events were premeditated or simply handled poorly.20 In either case the result of the Nika riot, and the hard won battle at Dara resulted in a strenuous peace accord with the Persians, as both
Justinian and the newly crowned leader of the Persians, Khusro, realized that a continuing war would only strain already dwindling resources.21 This allowed for
Justinian to change gears, and focus on the reconquest of Africa, as the Vandals were unprepared and outnumbered, as well as the reconquest of the Italian Peninsula.
16 Mitchell, A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world ,136-137. 17 Mitchell, A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world 136. 18 Mitchell, A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world 137. 19 Mitchell A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world, 138. 20 Ibid. 21 Mitchell, A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world 134.
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The military situation in 530, while not ideal for the Romans, was at least improving from that of the fifth century. Historians have pointed to the individual armies that generals commanded during the four hundreds as a major cause of the fall of Rome.
These individual armies are reminiscent of the first and second century BC armies that plagued the Republic around the time of Rufus’ military laws. The Social War, Julius
Caesar’s seizing of the throne and the battles between Augustus and Marc Antony are all examples of this “general’s army” mentality. A similar situation occurs in the four hundreds, with the federates and barbarians making up the core members of the many armies.22 In some cases this composition actually works really well. Heraclian, a general in Africa was backed in 413 by his army in his attempt to invade Italy and become emperor. Boniface a contemporary of the general Constantius in the early 400s, had an army that consisted largely of Gothic Federates.23 Both these armies managed to withstand and defeat three separate armies sent by the empire to depose them.
By the time the 530s had rolled around however, the Eastern Roman Empire was solidified in its power, and was looking toward conquering and reconquering certain areas. The conflicts in the Caucaus’s spurred from Religious differences.24 With the Nika revolts for the Romans, and internal struggle within the leadership of the Persian Empire, a truce was formed between the two, ending a monumental struggle that had plagued both
Empire’s for years. Justinian was now able to turn his attention toward other problem areas, including religious zealots and encroaching barbarians.
22 Liebeschuetz, "The end of the Roman army in the western empire.", 266. 23 Liebeschuetz, "The end of the Roman army in the western empire." 268 24 Mitchell, A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world 132.
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During the Republic, the army was considered almost exclusively to be a civilian’s militia. The term legion comes from the verb legere, meaning to choose or to levy. Most of these soldiers only served for a single campaign, and it was a means of social mobility and a way for provincials to gain citizenship through service.25 However, the campaign did not usually last longer than six years, although returned veterans formed part of the reserve for a period of sixteen years. Due to the size of the Empire during the second century BC most veterans were not able to return home quickly and as such it was not a desirable occupation.26 Because of the sheer size of the empire and the single campaign strategy keeping track of ranks for certain individuals was exceedingly difficult.27
Military service was required from the age of seventeen to forty six, as far back as the second century BC, although the actual practice of conscription would limit this to individuals with certain rights and excluded most of the poor populations, at least in the core group of the army.28 The poor population called the proletarii would be allowed to join early in the first part of the first century, under the reforms of Gaius Marius.
Rufus lays out some a few scenarios that prevent individuals from being accepted into the army. These include any public crime, including adultery, and individuals who were condemned to death or exile. While they may have escaped punishment can still never serve in the army.29 These same laws are repeated in the Digest, with adultery being again mentioned as one of the most heinous crimes.
25 Patterson, “Military organization and social change in the later Roman Republic.”, 98. 26 Patterson, “Military organization and social change in the later Roman Republic.”, 98-99. 27 Patterson, “Military organization and social change in the later Roman Republic.”, 99. 28 David Cherry. The Roman world: a sourcebook. (Malden, Mass: Blackwell, 2001), 174 29 Clarence E Brand. Military Laws of Rufus in: Roman military law. (Austin: University of Texas Press, 1968), 149.
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Citizenship was required to serve in the main group of the army, called the legionnaires. But non-citizens could serve in the ranks of the auxiliary. As mentioned earlier, by the time of the fourth century AD the paid Roman soldier and the subsequent legions of highly trained roman troops have disappeared in favor of barbarian mercenaries. These mercenaries are estimated to have made up at least twenty five percent of the Roman Army during the fourth century, and their loyalty was questionable at best.30 When Alaric invaded Italy and Stilicho needed an army he drew on large numbers of defeated barbarians instead of conscripting Roman citizens. While this was a good plan in theory, it backfired upon his death, when an estimated 30,000 barbarians deserted and joined Alaric on his siege of the Rome.31
There were two kinds of barbarians though, and the distinction between the two is essential to understand the events that occurred. Federates were members of barbarian tribes who hired themselves out to the highest bidder. These are obviously the ones that most concerned the Roman generals, for their loyalty was constantly in question.
However, occasionally generals would have under their command a group of bucellarii, personal followers who just happen to be barbarians.32 These individuals would follow their commanders wherever, and in some cases were inherited to the widows or sons of the generals, as is the case of Constantius’ bucellarii who followed his widow Galla
Placida upon his death.33
The fifth and sixth centuries AD reflect the first and second centuries BC in a number of ways. Not only do you have personal armies, with loyalty to their generals as opposed
30 Libeschuetz, "The end of the Roman army in the western empire.”, 266 31 Liebeschuetz, "The end of the Roman army in the western empire”, 267 32 Libeschuetz, "The end of the Roman army in the western empire”, 269 33 Ibid.
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to the state, parallels can be drawn from the composition of the army. The most dangerous position was always assigned to a member of the auxilia. In the first and second century BC these positions were taking up by provincials, those striving for wealth and citizenship. In the fifth and sixth centuries this same position would be assigned to the federates, and while they for the most part, are professional soldiers and mercenaries, and better trained, they too were not Roman citizens and so more expendable then the legionaries.34 Both Rufus and Justinian make no mention of the federates in terms of laws, neither acknowledging their presence nor expressly forbidding their presence within the military. This may be due to the face that they were considered a necessity or because neither Rufus nor Justinian were overly concerned with them, perhaps because they were simply preoccupied with discipline or military rights.
Regardless of the reason, the federates would be instrumental in the shaping of the history of the Roman Empire.
An entity as large as the roman military would have to adapt in order to survive the changing social structure of the Empire. Over a span of six hundred years one would expect these changes to be numerous. However, many of the changes that occur are minor ones dealing with small punishments. By comparing pay, occupations and the status of leave, land purchase, the legal relationship between soldiers and commanders, and how treason are mutiny are dealt with, as well as examining new laws that were granted to soldiers in the intervening years, it is possible to trace the changes that occurred in the military. In doing so, it is possible to view the overall shift towards a more lenient code as a response to the type of individuals that now make up the army.
34 Liebeschuetz, "The end of the Roman army in the western empire” 268.
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Comparison
Certain occupations are prohibited by Rufus, in some cases due to conflict of interest and in some cases due to the dangerous lifestyle that soldiers live. Soldiers are prevent from becoming contractors and trustees of the affairs of others, and are also prevented from engaging in farming or merchandising. Any breach of these protocols will result in immediate discharge and a forfeiture of all military benefits.35 In Justinian’s codex however, this law is altered due to the necessity of wills. Soldiers were able to make what were called “mutual wills”, where one soldier would inherit directly from another, after
Diocletian, but only if such wills were made on the eve of battle.36 This was forbidden for him because it was termed as “legacy-hunting”.37
Soldiers could be taken from the rank and file to serve as palace guards. This is the only shift in occupation mentioned in either text, as a movement between legions or to differing service was actually considered a form of punishment. Anyone found leaving his watch shall be put to death, or if he is granted mercy he shall be flogged and dismissed from service.38 The same law is mentioned in the Digest with the same punishment is located in the Digest, and also applies to the Praetorian guard, the 9,000 members who escort the emperor and serve for a term of sixteen years.39
Pay scales are difficult to determine during the Republic, in a large part because of the inconsistency with which individuals served and maintained certain ranks. Patterson
35 Rufus, Military Laws of Rufus, 151. 36 Justinian. Justinian’s Codex in: "Annotated Justinian Code." University of Wyoming: George William Hopper Law Library, n.d. Web. 16 Mar. 2012.
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suggests that the difference between the centurions and the ranks in terms of pay was much smaller during the Republic then the Empire, potentially as small as twice as much for Centurions then the rank and files, at least until the time of Julius Caesar, where it jumped to upwards of fifteen times that amount. 40
No mention is made in either Rufus’s military laws or in the Corpus Juris Civils in regards to the payment of soldiers, but the work of several historians has provided information regarding pay scales within the military. There were multiple ranks within the Roman Military, and each of these ranks received different amounts of pay. In general, pay was received three times a year, with advances given out only in the case of individuals not being present during these allotted periods in January, May and
September.41 While this occurred under stringent circumstances, it did occur, with records showing that some soldiers owed over 176 denarii to the Roman state in advanced pay.42 There could be a variety of reasons for such advanced payment, namely familial support or settlement of debt. Towards the end of the Republic and the middle of the empire the army was not really considered a way to become immensely wealth, and the pay was not that much.
Domitian raised the amount of pay received by all soldiers in the military in the year
84 A.D., before then the basic foot soldier received about 1200 sestertii a year, estimated to be over double what they had received before Caesar and Augustus ruled.43 One could move up within individual “jobs” as it were, but promotion, and the increase in pay that
40 Patterson, “Military organization and social change in the later Roman Republic.”, 99. 41M. Alexander Speidel. "Roman Army Payscale." The Journal of Roman Studies 82 (1992): 87-106. http://www.jstor.org/stable/301286 (accessed March 19, 2012). 87. 42 Speidel, "Roman Army Payscale.", 91. 43 Speidel, "Roman Army Payscale.", 88.
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accompanied it, usually only occurred after several years as a foot soldier.44 As stated previously, pay has been hard to examine due to limited records during 105 BC. By 530
AD, one can assume that it is not mentioned in Justinian’s works because it has long been established. Army’s at this time are no longer on the campaign system, and have instead been filled up with volunteers who become professional soldiers. These men are loyal to the Emperor, so only certain federates are inside these armies, and usually these men are relegated to specific positions and legions within the army itself. Earlier times had soldiers’ gaining wealth through land acquisition, which both Justinian and Rufus mention in their works.
Purchasing property where a soldier serves is forbidden, except if he is trying to redeem his ancestral estate from the Treasury.45 Patterson explains that in the second century BC, many of those who volunteered for the army did so because they saw the wealth of those who went on earlier campaigns in the East. A soldier could, theoretically, return home extremely wealthy from campaigns, but Patterson suggests that do to the length of the campaign itself, often these soldiers would be competing on an open market to either repurchase their own land, or buy up another plot.46 This did not however, prevent certain members of the ranks from purchasing land, especially during the civil wars. Wealthy members of the Army would purchase land either from other veterans or from members of the local population with money they had acquired during their campaigns.47 Justinian quotes Rufus in regard to the purchasing of land. Although one would assume that such investments would cause soldiers to fight more ferociously in the
44 Speidel, "Roman Army Payscale.", 92. 45 Rufus, Military Laws of Rufus, 151 46 Patterson ,“Military organization and social change in the later Roman Republic.”, 99. 47 Patterson, “Military organization and social change in the later Roman Republic.”, 103.
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face of attacking troops, the transient lifestyle and the forced movement might increase the temptation of desertion.
However, from 200 BC to roughly 177 BC, Latin colonies were being settled by
Roman Army veterans, granting the Republic a Roman presence in areas that were recently conquered and with locals less than pleased with them. Most often, the lands these soldiers settled on were gifted to them through the Army itself, with 70 iugeras (an iugera is roughly the size of an acre) given to the equisterian rank, and 50 given to the other ranks.48 Land grants very upon rank and colony. In Settler colonies, such as the ones that were still independent communities like the Latin states, soldiers were given more land in order to compensate for the loss of political rights in Rome .49 Citizen colonies, were political rights were still available would net some soldiers as little as 5 iugera, but any land is attractive for poor farmers.50 The gifting of land was one of the primary ways individuals made their fortunes when campaigns were not as lucrative as they had hoped they would be. With land came status and the ability to rise up in Roman society.
There is debate upon the state of the land question during the Social War between
Marius and Sulla, mainly because many of Marius’s recruits were from the poorest part of the Roman populace, the capite censi. Some believe that Marius’s land initiative was spurred because these soldiers had no estates to return to upon leaving the army, while
48 Patterson, “Military organization and social change in the later Roman Republic.”, 100. 49 Patterson, “Military organization and social change in the later Roman Republic.”, 101. 50 Patterson ,“Military organization and social change in the later Roman Republic.”, 100.
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others suggest that these were all volunteers, and the initiative had more to do with
Marius’s own authority rather than a need to find more land.51
The law that forbids the purchase of land while on duty continues into Justinian’s time, and he quotes Rufus outlawing all land purchases, with the exception of repurchasing a home from the Treasury. This was allowed because family members may have been unable to pay for the land with the soldier being the main income. Allowing soldiers to repurchase ancestral homes prevents mass amounts of homeless for their families. Preventing purchases of land in other places also prevents soldiers from keeping mistresses or entire second families while they are on leave, and fosters a sense of community by forcing the soldiers to live together in camp. Both Justinian and Rufus use this law to regulate military life and provide stability for citizens of the Empire, by preventing soldiers from purchasing lands in the communities where they are stationed.
Furloughs were granted in times of peace or during winter for a period of two to three months, and could be extended depending on the remoteness of a province, therefore “[i]ndividuals who are absent after the expiration of their furlough shall be dismissed from service and be turned over to the civilian authorities for punishment”.52
Citizens would be fined thirty soldii for permitting a soldier to go on leave with an impending war, and those soldiers who were absent without leave were punished with death if they were absent during a conflict, during peace however they are demoted to the rank of cavalryman.53 Individuals who desert to join the barbarians are summarily executed, and those who reveal Roman military plans are burned alive or hung upon the
51 Patterson, “Military organization and social change in the later Roman Republic.”, 102. 52 Rufus, Military Laws of Rufus, 167. 53 Ibid.
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cross (before Constantine) or the gibbet (after Constantine) regardless of the whether the soldier is on active duty or not.54 Those who desert to the enemy during battle are killed as enemies, and those who return to the Roman side are beaten and either fed to wild dogs or again hung upon the gibbet.55 These later changes to being fed to wild beats in the arena as a sort of public entertainment.56 Justinian, in his Digest, provides certain parameters which the military began to use to differentiate between the types of leaves.
Issues such as why the solider left, where he went and what he did are considered, and pardons may be granted for extenuating circumstances such as his own health or the health of his relatives.57 Additionally, new recruits were also pardoned because they are ignorant of the process.
Modestinus, in his Punishments, Book 4, which Justinian put into his Digest, orders a governor of a province to return the deserter to his commander, with a report, unless he has committed a serious crime in the province, in which case he should be punished there, per the Emperors Severus and Antoninus.58 Also in the Digest, Justinian keeps the definitions of desertion that Rufus had originally given, and gives a longer description of the actual details, including group defection. “When a number of soldiers conspire together in any outrage, or if a legion defect, they are customarily dismissed from the service”.59 However, in the Digest this changes. Groups who desert, and return within a set time shall be reduced in rank and scattered to different legions, and
54 Ibid. 55 Rufus Military Laws of Rufus, 169. 56 Justinian, Digest 175. 57 Justinian, Digest 179-181. 58 Justinian, Digest 171. 59 Rufus, Military Laws of Rufus, 153.
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indulgence is given to new recruits, if the offense is repeated “they shall suffer the appropriate punishment” in this case meaning death.60
Many of Rufus’s laws have to do with soldiers who break lines or flee during combat.
Standard bearers were also held to the same standard as regular arms bearing members of the army. Rufus makes no distinction between abandoning ones post to flee, abandoning ones post to chase after the enemy, or abandoning ones post to loot or despoil a corpse.
All such actions pose a danger to ones comrades and as such is punishable by death.61
Additionally, since the soldier endangered the lives of his comrades, all of his personal belongings that are in camp shall be divided equally among his legion. Any legion that retreats without justifiable cause shall be decimated.62 In this case decimated actually means that the soldiers shall draw lots, and generally one-tenth would be executed. In the
Latin version they were run through with spears by other legions, in the Greek they were shot down with bow and arrows. Any member of the offending legion that was injured in battle is exempt from this selection. Additionally, the first person who flees shall be put to death in sight of his comrades and all who quit their post in battle will be either bludgeoned or changed in branch of service.63 Changed in branch of service means he is moved to another unit, as this is not considered desertion. In all of these cases, the punishment serves two purposes, which explains why these laws are found in Justinian’s
Digest. Fleeing not only displays cowardice, a trait that is obviously not welcome in the roman army, but also these actions endanger the lives of the soldiers themselves. A system of military based on trust and brotherhood cannot flourish if a soldier is
60 Justinian, Digest 173. 61 Rufus, Military Laws of Rufus, 157. 62 Rufus, Military Laws of Rufus, 157. 63 Rufus, Military Laws of Rufus, 159
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questioning another’s strength of will in battle. Such distrust can only lead to the collapse of a unit and from there the entire army. This same ideology is necessary for Justinian also, as his aim was to recapture lost territory. A process that would be made more difficult with an ineffective army.
If a standard was captured by the enemy during a battle, and there is no reason for it, the bearer shall be reduced to the bottom of the standard bearing lists and shall be chastised64. Rufus exempts those who are injured from such punishment. There is no mention in Justinian’s Digest of these individuals, but the army at this time was made up mostly of volunteers, so there might be less cause for such actions, although the punishments probably were maintained.
In the case where there a fortifications present, and it is a defensive battle and not an offensive one, battle lines who retreat and do not help defend the rampart or ignore it in favor of a more defensible position, these individuals shall be punished for causing the ensuing panic.65 No explanation as to what exactly “punished” means, but one could assume that it is some form of corporal punishment given the severity of the transgression. Any soldier who is assigned specifically to a rampart who deserts it is punished with death, while one who jumps over the trenches is dishonorably discharged.
A soldier is only as good as his weapon, and soldiers who throw away their arms in the middle of a battle are punished twice, ones for disarming themselves and again for arming the enemy.
All these laws are restated in Justinian’s Digest, with the same punishments. The same logic applies to the defense of the ramparts. Any desertion or movement would
64 Rufus, Military Laws of Rufus, 157. 65 Rufus, Military Laws of Rufus, 159.
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serve to weaken the ramparts, and thus endanger the lives of both citizens and soldiers alike. Thus the punishments for these types of desertions are always strict, regardless of the actual state of the military. The fact that Justinian quotes Rufus in this section attests to that.
A dishonorable discharge from the Roman Military would end any hope of public office according to the Military Laws of Rufus.66 One can receive a dishonorable discharge for “Compound[ing] the crime with the adulterer of his wife” which means if he commits any crime, be it theft or murder against a man and then sleeps with that man’s wife the crime is considered to be worse.67 The Digest strives to limit the attempts of wanted men to use the military as a scapegoat. As such Justinian takes the mentality of
Arrius Menander in his Military Affairs, Book I and says “[i]f an individual uses the military to escape a court trial, or to try to make himself more of powerful to his adversary, he shall be dishonorable discharged from the army and returned to the civilian judge”.68This would effectively ruin any chance of increasing the prestige of said individual, and prevents them from ever gaining any kind of military prominence, with hinders his social status as well.
This section is not included in Justinian’s Digest, most likely because the vast majority of the army during the sixth century is made up volunteers. Individuals who are choosing to become members of the military in this time are not doing so to seek glory and become able to enter the ranks of the senate, but are looking for ways to feed their
66 Rufus, Military Laws of Rufus, 149. 67 Ibid. 68Justinian, Digest, 173.
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families. This is one of the largest changes that accompanies the shift from 105 BC to
530 AD.
Rufus also separates disobedience in the ranks, between soldier’s and quincurions, quincurions and decurions and decurions and centurions. All disobedience in this case results in what is termed in his laws as “chastisement” but is translated as a type of corporal punishment. Disobeying a count or tribune results in the death penalty.69 Rufus devotes a couple laws to the interactions between superiors and their charges, most of them dealing with soldiers disobeying or injuring their superior officers. He also makes a distinction between ignoring an order and misunderstanding an order; the former will result in punishment for the individual carrying out the order while the latter will result in the punishment (corporal) of the individual giving the order because he failed to explain it correctly.70 This prevents poor commanders from rising to the top of the ranks, and benefits both the commanders and soldiers, as commands are supposed to be given simply and be easy to understand.
The interesting thing is that Rufus makes a note to distinguish differing intents. A soldier who tries to catch the rod while he is being flogged is dismissed from service and forfeits his priveleges while one who moves to strike the individual who is doing the flogging is sentenced to death71. The same distinction is made in regards to mutiny as well. A person who incites a riot with the intent of insurrection will be punished with death by beheading,72 while one who incites a “loud clamor”73 or as a complaint against
69 Rufus, Military Laws of Rufus, 151-152. 70 Rufus, Military Laws of Rufus, 152. 71 Rufus, Military Laws of Rufus, 153. 72 Rufus Military Laws of Rufus,, 154. 73 Rufus Military Laws of Rufus, 153.
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another person will simply be reduced in rank. In the very next law however Rufus states that the individuals who incite soldiers to loud shouting will be severely beaten and discharged from service, and soldiers who “disturb the peace” are killed.74 The distinction between these three laws is very fine, and neither Rufus nor Justinian attempt to clarify. These same laws are repeated in Justinian’s Digest, but no explanation is given as to the difference between the three offenses, although the answer might be the intent.
Justinian and Rufus both consider intent as a factor in the laws. In this regard the two are very similar, most likely because this directly affects the functionality and stability of the military. Both men are concerned with maintaining a disciplined army that is capable of acting and reacting as a cohesive unit. Individuals who upset this very delicate and necessary balance have no place in the military, and as such they are punished the same
600 years apart.
Mutiny and Treason are grouped together in Rufus’s laws. “He who transgressors against the sovereign shall be smitten with the sword, and proscribed, and his memory shall be condemned after his death”.75 Brand also provides a note explaining that proscription usually means that a person’s property is confiscated and he is banished. In this case, since the transgressor is also condemned to death, only his property is confiscated. Conspiracy against ones commander also results in capital punishment, although the soldier’s property will be reverted back to his family. “A soldier who instigates mutiny and those who inflame the populace shall, according to the merits of their station, either be put to the sword or banished”,76 Brand makes a note to mention
74 Rufus, Military Laws of Rufus, 154. 75 Rufus, Military Laws of Rufus, 151. 76 Rufus, Military Laws of Rufus, 155.
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that the separation between these two punishments depends solely on rank. Those with a higher rank would be banished, while those in the auxiliary would be put to death. Any person, in conspiracy with soldiers, private citizens or foreigners who killed a person of senatorial rank or a soldier, shall be charged with high treason, have his property confiscated, and be put to death.77
Prisoners of war make for an interesting problem in regards to their treatment upon their return. Rufus makes no mention of them, most likely because the enemies at the time were not interested in taking any prisoners. However, Justinian makes a note to explain the procedure when confronted with individuals who had been captured by enemies of Rome. Any soldier who was captured while traveling, by the enemy, may potentially be pardoned depending on his previous record of service, and receive the military benefits.78 One could postulate that this law only applies to those captured while traveling because, being captured while in battle indicates a mental surrender. The individuals who tried and sentenced military offenders were specially selected dukes that were given the position of military judge
Because Rufus’s Military Laws serve primarily as a way to improve the discipline
and effectiveness of the Roman Army, there are no laws detailing soldiers rights. The codex is the first mention of exactly how these rights were upheld. In terms of trial for military personal, usually those trials would be presided over by three judges, mostly counts or dukes, chosen by the Master of the Force, depending on which branch of the military one
77 Ibid. 78 Justinian, Digest, 175.
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was in.79 Master of the Forces, one for the cavalry and one for the infantry, (although it appears that often the power was vested into a single person) were the highest military power in the empire, second only to the Emperor himself. These individuals had jurisdiction over any case where a soldier was a defendant, even in criminal cases. The digest later adds in that “criminal offenses of soldiers are either specifically military or in common with others. An offense is specifically military if it is committed by a person in his capacity as a soldier.80 This provided the Roman Government a way of dealing with soldiers outside of the established city legal systems. Much of Justinian’s Codex deals with such issues arriving from having a transitory citizenry of soldiers.
There were some restrictions put in place to monitor these high ranking officials, including trimester reports to be sent to the emperor. Individuals who failed to do this would be fined 50 pounds of gold, as well as the loss of their position. This report was also required by any civilian officials who interacted with the military, and these accounts usually consisted of a list of soldiers and perhaps their pay, as well.81 No commander could order members of the military to enforce a private transaction between men, nor could a curial, a unit of tribesmen with the same nomen, be called to a military court.82
Additionally, to ensure that trials were being held honorably, and to prevent any cut-and- run legal scenarios, Justinian includes in the Codex a letter from Emperor Zeno to
Praetorian Perfect named Sebastian, indicating that all civil and military judges shall
79 Justinian,Book I. Title XLVI “Concerning the office of military judges.” 80 Justinian, Digest, 171. 81 Justinian, Book I, Title XLII, “Concerning the reports, civil and military, to be made every four months.” 82 Justinian, Book I, Title XLVI, “Concerning the office of military judges.”.
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remain for fifty days in the area where they practice.83 Additionally, no individual who served in the office of a duke could join the imperial messengers, lest he receive the power to act as chief.84 This prevents an individual with political ties into influencing or tampering with Imperial matters. Although this law is not specifically military, these individuals have access to military information.
Throughout the end of the Republic and the beginning of the Empire, much of
Rome’s forces were devoted to expanding the territory and conquering land. It is not until the time of Hardrian in 117 AD that one can see a shift in the tactical machinations of the
Roman Military. Roman Emperors switched from a resource finding frenzy to the idea of preclusive security, a linear defense of their territory.85 The best example of this is
Hadrian’s Wall in Great Britain.
But in the middle of third century the Empire abandoned the idea of preclusive security for a more transitory defense force, capable of moving around to plug any major holes in their defense. Some scholars have argued that this switch occurred due to a lack of finances but the reality is that the army of the second century could be supported by the private fortune of one or two men.86 Rome’s prowess lay not only in military might, but in an exemplary understanding of training and logistics. They were able to outlast barbarian sieges simply because they were better prepared, despite the fact that they were
83 Justinian, Book I, Title XLIX, “That all civil and military judges shall, after quitting their post of administration, remain for 50 days in the cities or localities” 84 Justinian, Book I, Title XLVI, “Concerning the office of military judges”. 85 Arther Ferrill. The fall of the Roman Empire: the military explanation. New York, N.Y.: Thames and Hudson, 1986. 25. 86 Ferril, The fall of the Roman Empire: the military explanation, 26.
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usually outnumbered. Additionally the Roman style of fighting allowed for fresh reserves and superb maneuverability, allowing them to flank enemy lines.87
Captured enemy soldiers serve as an interesting example of treason. In general, these prisoners were guarded, letting them go out of pity would result in a dismissal from service, but releasing them for nefarious purposes would result in either be killed or reduced to the lowest rank in their service, depending on degree and intent.
Any soldier who deliberately disobeys his commanding officer by committing and act that was expressly forbidden, he shall be put to death, regardless of whether that action was successful or not.88 Brand also provides us with an example in his notes of the consul
Manlius Torquatus, who had his son executed for engaging in a one on one battle with an insulting enemy chieftain. Manlius’ Torquatus’s son won the fight and brought the offending chieftains’ weapons as a vindication of his honor.89 Despite his success, the son was still executed because his father had expressly forbidden him to engage in combat with the chief. In the Digest, Justinian quotes Rufus verbatim in regards to this law. Any commander who is killed when his soldiers could have prevented it shall be put to death.90 This mainly applies to deserting ones commander and not betraying him to the enemy. Justinian also reprints this law in his Digest, although it is reworded slightly the intent is still the same.91 The Roman military system was designed to allow those best suited to the position to rise to the top. This law forbids soldiers from contributing to their
87 Ferril, The fall of the Roman Empire: the military explanation, 29. 88 Rufus, Military Laws of Rufus, 159. 89 Ibid. 90 Rufus, Military Laws of Rufus, 161. 91 Justinian, Digest, 177.
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leaders simply because he was a poor commander, and facilitates loyalty among the troops.
“Commanders or those who are in any way charged with the maintenance of the army who extort money from landed estates shall be fined twice such amount”.92 Brand notes that this was in a large part to prevent commanders from “living of the land” which would mean seizing Roman property for military use. Justinian also provides more protection for Roman cities and citizens by preventing city taxes to be used for private baths for military leaders, including dukes and counts.93 The only people who can request such baths would be the Master of the soldiers, everyone else is required to use the public baths in the city, and anyone who violates this law would be receive “double punishment” which could translate to twice the requested amount. These protections extended to individual citizens in the next section of both Rufus and Justinian’s laws.
Soldiers were not exempt from paying restitution against individuals they had wronged. Any person, soldier, commander or private citizen who causes injury to someone, must pay double the amount of damage, whether they are in camp, on march, or wintering in an area.94 This type of monetary restitution extends to the rape of a girl, who will then receive one third of the soldiers’ property.95 Additionally, protection of civilians was of paramount importance to the Roman Military, and as such Rufus lays out specific laws for the defense of cities as well. These protections extend to whole townships, and any person abandoning a city that could be defended, without order from
92 Justinian, Digest, 165. 93 Justinian, Book I, Title XLVII, “That no baths shall be furnished to the military counts or tribunes.”. 94 Rufus, Military Laws of Rufus, 155. 95 Rufus, Military Laws of Rufus, 163.
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his commanding officer and without threat on his life shall be put to death.96 This law ensures soldiers do not flee in the defense of a township, providing additionally protection of Roman cities and ensuring a cooperative arrangement between citizens and the military personnel.
Any soldier who wounds another soldier with a sword, will be beheaded. Wounding a fellow soldier or oneself with a stone will result in a flogging and a dishonorable discharge from the service.97 The exception to this is if the wound was incurred trying to escape bodily suffering, sickness or death. Any soldier who inflicts self wounds, with the intent to commit suicide, without any justification, shall be put to death. But those who are suffering from physical pain, sickness or fear disgrace will be dishonorably discharged.98 The distinction here is made between fear and pain. Pain is an acceptable response, at least to a certain extent, but fear is not. One consistency between both Rufus and Justinian is harsh punishment for cowardice. Theft of livestock was a capital crime, while stealing weapons would result in a transfer of service, because livestock were much more valuable to the entire camp.99 Almost all of these laws are kept and recording in the pages of Justinian’s Digest, and the punishments are kept the same.100
For the Roman Military, punishment is an integral part of discipline. In Rufus military Laws, each individual law is laid out, with specific punishments stated depending on the crime. The most usual of these was general death, in the Greek version of his writings it was often written that an individual would be “beheaded” but that
96 Rufus, Military Laws of Rufus, 161. 97 Rufus, Military Laws of Rufus, 155. 98 Rufus, Military Laws of Rufus, 157. 99 Rufus Military Laws of Rufus, 163. 100 Justinian, Digest, 175.
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specific distinction is not present in the Latin translation. Exile was also a common punishment, but only for certain specific crimes, and general offenses were dealt with more harshly than one would expect, because discipline is paramount and unquestionable obedience is part of the fundamental structure of the military. Dismissal from service, which would always be considered a dishonorable discharge, and thus a forfeiture of military benefits accompanies specific acts of cowardice and some acts of desertion, but not others. And proscription, or the seizure of all property, also accompanied many different crimes, some resulting in death, although proscription generally meant exile and loss of property.
Rank provided individuals with some protection, as the higher rank you were the more lenient judges would be in terms of punishment, but only for certain crimes. For example, individuals who purchase stolen military goods shall be put to death, unless they are of high rank in which case they will only be proscribed.101 Additionally, the military made some allowances for drunkenness and licentiousness, where capital punishment would not be inflicted, and individuals would be transferred to another branch of service meaning movement to a different legion. 102
In the Digest, Justinian lays out exactly which punishments are acceptable and which are not. These include corporal, pecuniary fines, the imposition of compulsory duties, transfer to another branch of service, reduction in rank and dishonorable discharge.103
Justinian leaves in the sections that forbid forced labor in a mine and torture, two things
101 Rufus, Military Laws of Rufus, 163. 102 Ibid. 103 Justinian, Digest, 171-173.
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that appear to have been acceptable under earlier military regime. Death is still considered to be an acceptable punishment for certain crimes, including desertion.
The Digest explains that anyone born as a male, specifically anyone born with
male genitals can lawfully serve in the army, under the direction of the Emperor Trajan, even if they were only born with one or they have lost one.104 Rufus’s military laws indicate that military service was hereditary. The eldest son must take his father’s place and will receive the same pay.105 This could also be interpreted to mean that the son will be placed in the same rank and unit as his father. This displays a shift in the traditional structure of the Roman Military, where skill would result in promotion and not hereditary succession, money or power. Perhaps, it means that it was expected of soldiers to train their oldest sons in combat so that they would be prepared to take their fathers’ place.
Conscription was practiced by the Roman Military until the early part of the first century AD, when volunteers became more common. By the time of Augustus the
Roman Army had been almost universally privatized, and turned into a standing army made up of volunteers. Rufus outlines the punishments for soldiers who attempt to flee service. Father’s who try to save their sons from serving by disabling them will be sent into exile, while those who remove their sons from existing service shall be banished and their property confiscated.106This would generally apply to those in areas who were under a conscription order. Individuals who evade military duty shall be reduced to slavery,
104 Justinian, Digest, 177. 105 Rufus, Military Laws of Rufus, 165. 106 Rufus, Military Laws of Rufus165.
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except those who do so by feigning bodily illness in fear of the enemy, those individuals shall be put to death.107
There were also stringent laws on who could join the military as well. Individuals who were wanted for crimes could not enlist, and those who had been in exile also could not enlist. However, if one had been sent into exile for a specific amount of time, and he had served his sentence, he may be admitted into the military pending an investigation of his crime.108 Provided a compromise had been reach, the individual was allowed to serve in the army, and reap the military benefits.
The Digest mentions most of these laws, but the changing military structure has made many of them obsolete. Since the military has now become comprised of mostly volunteers, the punishment of slavery has been abandoned by the military.109 Father’s who try to save their sons from military service by withdrawing them in a time of war forfeit part of their property and are banished, while in a time of peace the father is beaten with cudgels.110 In this case the son is also susceptible to punishment, if he is found by the military or if his father presents him for service, because the military has no use for those who allow themselves to be subverted by another.111 Any father who disables his son so that he will be safe from military duty is subject to deportation, if he did so in a time of war. The laws of Justinian appear to be more lenient with banishment being the general verdict in these cases. Again, this is probably due to professional soldiers now employed who had volunteered to serve. These men are generally less likely to run away,
107 Supra. 108 Justinian, Digest, 177 109 Justinian, Digest, 179. 110 Ibid. 111 Ibid.
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as the punishment for desertion if one was a senior soldier is just as harsh in 530 as it was in 105 BC.
One of the predominate features of Justinian’s Codex is the rights granted to soldiers
in terms of their wills. Soldiers had the ability to make Testaments binding without the presence of a legal advisor, and by law these testaments had to be honored. This law extended to any soldiers who died on the field, died during service, or within one year after an honorable discharge. A soldier was able to write a will himself, have someone else, even someone who was not trained, write it, or recite it orally in front of witness who could attest that it was being faithfully fulfilled. Soldiers could appoint heirs for a set amount of time, for example a year, and it could be a certain individual, allowing someone to act as regent for a young son or daughter.
Obviously, this law would be incredibly hard to manage, as occasionally soldiers would bequeath their goods in camp to other soldiers. Goods outside of camp were passed on to the next of kin or named heir depending on what is called the “intestate inheritance succession”.112 Soldiers could even write a will in their own blood on their sword, sheath, or shield, or in the dust as they died on the field of battle, and those kinds of wills must be honored. How this is regulated is unknown.
Sons and daughters of soldiers who were not included in their wills were automatically considered to be disinherited, but only if the soldier knew of their existence. If their existence was unknown their inheritance could not be taken from them, although how this was regulated is not mentioned. None of these rights are stated in
112 Justinian, Book VI, Title XXI, “Concerning the Testament of a soldier”
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Rufus’s laws, firstly because he was a senator and did not have the powered to grant such laws, and secondly because the idea of soldiers rights, as compared to citizens rights, was very likely a foreign concept. Rufus created his drill book to instill discipline in the army, not to grant rights to those subjects. Most of the legionaries were already citizens, with the auxilia made up of provincials and barbarians, who did not “need” rights anyway.
With Justinian, these rights were a way to assure recruitment, by giving soldiers more rights than ordinary citizens in certain circumstances.
Justinian’s codex, while dealing mostly with legal issues, does have mention a concept not seen in the Military Laws of Rufus, the idea of absent on state business. Soldier’s rights vary depending on what capacity they serve in, and what their current state, whether on leave, wintering in an area or on the march, is. When a soldier is considered absent on state business, and his property is seized because of an impending trial, that soldier may reclaim his property within one judicial year.113 A judicial year is equivalent to four calendar years and serves as a statute of limitations for the Roman judicial system.
Also in this case, any possessions that are seized may not be sold until a judicial year has passed since the soldier has returned from being “Absent on the business for the state”.114
The first law in the military affairs of Justinian’s Digest is that soldiers who are absent on leave are not considered to be absent on business for the state; this revokes some of the
113 Justinian, Book II Title L, ‘Concerning restitution (of rights) of soldiers and of those who have been absent on public business’. 114 Supra
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priveleges and immunities these soldiers would have received had they been on active duty. 115
The personal armies that were created in the time leading up to the social war, were reflected later on in the four and five hundreds. These armies were made up of men not loyal to “Rome” but to their leaders, and even that loyalty was often questionable.
Because the controlled area was so large, the armies spread so thin, and the empire divided by its Emperors, there was little hope of being able to defend against such a schism. Libeschuetz points out that “the tendency of the imperial government to lose control of its armies was a serious weakness.”116 Infighting and rogue generals crippled the empires ability to react with the necessary force in order to repel the greatest dangers, the Goths and Vandals.117
Most of the writings within Justinian’s Codex deal with managing the military, not in a disciplinary sense but in a legal sense. Individual titles serve to expound on the rights granted to soldiers. In most cases these rights deal exclusively with trials, testaments, and extension of rights to other members of their family. By 500 it would appear that the army had a well functioning idea of discipline, and so the Codex served to explain the back end processes of running the military.
Although some of the Laws located within the Digest are taken directly from the
Military Laws of Rufus, and other well known books regarding military discipline, the state of the Roman Army in 530 AD is both vastly different and surprisingly similar to the Roman Army of 105 BC. Both Armies have large numbers of leader loyal groups, in
115 Brand, 171. 116 Libeschuetz, "The end of the Roman army in the western empire.", 270. 117 Libeschuetz, “"The end of the Roman army in the western empire.", 270.
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some cases these escalate to standing private armies for generals. In 105 BC these armies were used to battle for political supremacy and land within Italy and, more specifically,
Rome itself. In 530 these private armies were used to repel invaders or reconquer areas that had been lost. The shift in the mid second and third century to a linear defense strategy, then back again to a more privatized defense in the latter half of the fourth and early fifth century which lead to the repeated sacking of Rome, demonstrates the oscillating structure of the Roman military. It would appear that loyalty groups caused the most damage in terms of structure within the military, and subsequently were responsible for the greatest losses, both in 105 and the early 400s, during the second and third centuries where Roman Empires were not expanding so much as maintaining their territory, a shift to a more scaled back, and better trained group of soldiers. This stance is later apparent in Justinian’s own time with Belisarius’s troops and the subsequent areas that are reconqured during this time.
The Digest explains in detail offenses and punishments, outlaws some actions but allows for the practice of others. It demonstrates, too, a shift from the traditional “single offense” mentality to a more forgiving system, especially for new recruits. Certain crimes that once ended in banishment or death, are now changed to a shift in service. This by no means implies that the discipline system is any less vicious or effective, merely that is more lax in regards to certain offenses. This can be attributed to the increase in volunteers, as conscription has all but disappeared at this point in the history of the
Roman Empire.
After the “fall” of the Western Roman Empire, and the shifting of the power structure to Constantinople in the East, the military structure changes once again. In this
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case, the military of the east bears a striking resemblance to the Western Army during the second and third century, especially in terms of effectiveness. The recruitment of federates does not seem to occur during Justinian’s reign, perhaps due to Belisarius’s own preferences, but more likely due to the constant struggle of reconquering areas that had fallen out of “Roman” hands between the third century and the sixth. This does not mean to say that federates do not exist in these army’s, on the contrary, the reconquest of Africa and Italy could not have occurred without non-Roman soldiers in the ranks, but these individuals were not mercenaries for hirer and they did not compose a significant portion of the actual army. The individual numbers range to be roughly 1000 non-Roman men, who were horseman and archers.118
Justinian’s Corpus Juris Civilis is the first of its kind in terms of legal documents, and is incredibly important, especially for its military laws. What is most striking and most important is that the military laws that are found within the Digest, are reprinted almost exactly, with very few changes or omissions made. The overall theme seems to be one of leniency when it comes to punishments, and one can project that this might be a product of the changed nature of Roman military. During Rufus’s time, the army was an accepted hereditary way of life for many individuals, and a way to gain wealth and prestige for one’s family, at least for those who were part of the Roman’s citizenry. By
Justinian’s time these men have been replaced by volunteers, individuals who like the prestige and lifestyle of a soldier. Military life had become optional, and it was an option few men would choose. To combat the very real hardships, Justinian was forced to make certain aspects of military life more bearable. He grants more rights to soldiers using the
118 Mitchell 140.
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Codex, and alters some of the lesser offenses in his Digest so that he still has soldiers to command. Other soldiers can be found in the outlying barbarian and conquerable tribes, but these forces are not to be relied upon. That is the major difference between the two timeframes. Although both times are tumultuous politically, the personal armies with loyalty to their generals are replaced in the sixth century with individuals who loyalty is back with their Emperor.
Neither one of these texts was really about creating an army, or even maintaining one, but creating a soldier. Indoctrinating these beliefs early on into every soldier ensured the group mentality that is necessary for the health and survival of an army, and thus an
Empire.
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Primary Sources:
Brand, Clarence E. Military Laws of Rufus in: Roman military law. Austin: University of Texas Press, 1968
Brand, Clarence E. The Civil Law Digest in: Roman military law. Austin: University of Texas Press, 1968
Cherry, David. The Roman world: a sourcebook. Malden, Mass: Blackwell, 2001.
Johnson, Allan C., Paul R. Coleman-Norton, and Frank C. Bourne. Ancient Roman Statutes. Austin, TX: Austin University of Texas Press, 1961. Justinian. Justinian’s Codex in: "Annotated Justinian Code." University of Wyoming: George William Hopper Law Library, n.d. Web. 16 Mar. 2012.
Secondary Sources
Adkins, Lesley, and Roy Adkins. Handbook to life in ancient Rome. New York, NY: Facts on File, 1994.
Alston, R. "Roman Military Pay from Caesar to Diocletian." The Journal of Roman Studies 84 (1994): 113-123. http://0- www.jstor.org.innopac.library.unr.edu/stable/300872 (accessed February 5, 2012). (Online)
Ferrill, Arther. The fall of the Roman Empire: the military explanation. New York, N.Y.: Thames and Hudson, 1986.
Brand, Clarence E. Roman military law. Austin: University of Texas Press, 1968.
Gibbon, Edward, and D. M. Low. The decline and fall of the Roman Empire. [1st American ed. New York: Harcourt, Brace, 1960.
Hackett, John Winthrop. Warfare in the ancient world. New York: Facts on File, 1989.
Hanson, Victor Davies. "The Journal of military history: The status of ancient military history: Traditional work, and recent research." The Journal of Military History 63, no. 2 (1999): 379
Heather, P. J.. The fall of the Roman Empire: a new history of Rome and the Barbarians. New York: Oxford University Press, 2006.
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Kuiper, Kathleen. Ancient Rome: From Romulus and Remus to the Visigoth Invasion. Chicago: Brittanica Educational, 2011. ( Online through UNR Library)
Liebeschuetz, Wolfgang, ed. John Rich, and Graham Shirley. "The end of the Roman army in the western empire." In War and Society in the Roman World. 5 ed. adstow, Cornwall: T.J. Press Padastow, 1997. 265-276.
Mennen, Inge. Power and status in the Roman Empire, AD 193-284. Leid
Mitchell, Stephen. A history of the later Roman Empire: AD 284-641 : the transformation of the ancient world. 1. publ. ed. Malden, MA [u.a.: Blackwell, 2007.
Patterson, John, ed. John Rich, and Graham Shirley. "Military organization and social change in the later Roman Republic." In War and Society in the Roman World. 5 ed. adstow, Cornwall: T.J. Press Padastow, 1997. 92-111.
"Publius Rutilius Rufus." 1911 Encyclopedia Britannica - Free Online. http://www.1911encyclopedia.org/Publius_Rutilius_Rufus (accessed March 19, 2012).
Southern, Pat. The Roman army: a social and institutional history. Santa Barbara, Calif.: ABC-CLIO, 2006. en: Brill, 2011.
Speidel, M. Alexander. "Roman Army Payscale." The Journal of Roman Studies 82 (1992): 87-106. http://www.jstor.org/stable/301286 (accessed March 19, 2012).
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