Roman Law in Roman Britain: An Introductory Survey
2012; Routledge; Volume: 33; Issue: 2 Linguagem: Inglês
10.1080/01440365.2012.698881
ISSN1744-0564
Autores Tópico(s)Classical Studies and Legal History
ResumoAbstract This article is the first attempt to analyse the condition of Roman law in Roman Britain for more than thirty years. It is intended as an introduction to the subject and a point from which further research can be done. The article briefly describes current knowledge of the effectiveness of Roman law in Roman Britain, relying upon not only traditional Roman law sources but also a large number of epigraphic sources. Based upon an analysis of these, it may be said that Roman law played an important role in the daily life of Roman Britain. It was not only associated with the Roman conquerors, but it was also used by Romanized native inhabitants of the island. It is even possible that the foundations laid down by the Romans influenced the later development of medieval Welsh law. Notes 1E. Birley, ‘Law in Roman Britain’, in Aufstieg und Niedergang der Römischen Welt, II. B. 13, Berlin and New York, 1980, 609–25. It was a revised version of the article previously published as E. Birley, ‘Roman Law and Roman Britain’, Durham University Journal (1947), 58–63, and later reprinted in E. Birley, Roman Britain and the Roman Army, Kendal, 1953, 48–57. Some useful information about Roman law in Roman Britain was also included in J. Liversidge, Britain in the Roman Empire, London, 1968, 303–5, and D.A. Thomas, ‘Origins of the Common Law. Part 1: The Disappearance of Roman Law from Dark Age Britain’, Brigham Young University Law Review (1984), 563–98. Some information about Roman law in Roman Britain is also included in the second chapter of T.G. Watkin's book The Legal History of Wales, Cardiff, 2007. About the relation between Roman law and its provincial counterparts see chapter 21 in A.M. Riggsby, Roman Law and the Legal World of the Romans, Cambridge, 2010, 215–28. 2See especially a good overview of the municipal administration research based on inscriptions by R.W. Prag, ‘Sicilia and Britannia: Epigraphic Evidence for Civic Administration’, in C. Berrendonner, M. Cébeillac-Gervasoni and L. Lamoine, eds., Le Quotidien municipal dans l'Occident Romain, Clermont-Ferrand, 2008, 69–72. 3A good example is chapter 10 in S. Frere, Britannia, 3rd ed., London, 1987. 4A.R. Birley, The Roman Government of Britain, Oxford, 2005. 5In Roman Britain there were four colonies: Camulodunum (Colchester), Glevum (Gloucester), Lindum (Lincoln) and Eboracum (York), see Frere, Britannia, 171–89. Additionally there were two municipal towns (municipium) – Verulamium (St. Albans) and Londinium (London). As to Verulamium it is uncertain when the town obtained such a position. According to Tacitus (Annals 14.33) at the end of the first century AD it had already achieved municipal status. As to Londinium it is generally accepted that this status was granted, but there is no sure evidence, see further A. Selkirk, ‘What was the Status of Roman London’, 7.12 London Archaeologist (1995), 328–31. 6The social status of the inhabitants of the Roman Empire differed. The broadest rights were acquired by the citizens. In the sphere of private law they were eligible to make a valid Roman marriage (ius conubii), to create legal contractual relations (ius commercii), to make a Roman civil law will (testamenti factio) and to bring an action to court (legis actiones). Additionally they also had some public rights. They were eligible to be enlisted in the legions, to vote during the popular assemblies, to be elected as magistrates and to bear Roman-style names. The second social group was composed of three groups of Latini, e.g. original inhabitants of Latium, people who received that status through the official grant or informally manumitted former slaves. Most of them had similar private rights to citizens, but they were limited in the sphere of public law. The last group were the foreigners (peregrini). They did not have any special rights in the sphere of Roman civil law and they lived according to their native customs and ius gentium. For more about the Roman social status see W.W. Buckland, A Text-Book of Roman Law: From Augustus to Justinian, 3rd ed. rev. by P. Stein, Cambridge, 1963, 86–100. 7Caracalla was an emperor along with his father Septimius Severus from 198 until 211. From 209 until 211 the third co-emperor was also his brother Geta. After Septimius Severus' death at the start of 211, the two brothers ruled jointly for a few months, but finally Caracalla killed his brother. 8See H.F. Jolowicz, Historical Introduction to the Study of Roman Law, 2nd ed., Cambridge, 1961, 356–8. 9C.E. Stevens, ‘55 B.C. and 54 B.C.’, 21 Antiquity (1947), 3–9. 10The term vectigal was used in many different circumstances, see R. Cagnat, ‘Vectigal’, in Le Dictionnaire des Antiquités Grecques et Romains, vol.5, Paris, 1919, 665–6. 11D. Shotter, Roman Britain, London and New York, 2004, 18. 12The idea that Agricola might cross the Irish Sea was suggested by his son-in-law, Tacitus. He wrote in On the Life of Julius Agricola 24 that Agricola claimed many times that he would be able to occupy Ireland with the help of one legion and a few auxiliary units. In the late nineteenth century there was even a debate about the probability of such an invasion (see A. Gaudeman, ‘Did Agricola Invade Ireland?’, 29 Transactions and Proceedings of the American Philological Association (1898), xxxvi–xxxix, and F. Haverfield, ‘Did Agricola Invade Ireland?’, 13 The Classical Review (1899), 302–3). Although there is no evidence of the invasion, archaeologists have managed to find in Ireland many objects that seem to be Roman or influenced by Romans, see N. Edwards, The Archaeology of Early Medieval Ireland, Abingdon, 1996, 1–5. 13Tacitus suggested (On the Life of Julius Agricola, 39) that Domitian was afraid of the popularity that Agricola gained. 14Birley, Roman Britain, 21. 15F. de Martino, Storia della costituzione romana, vol.4.2, Napoli, 1965, 715–17. 16D. 1.18.4 (Ulpianus libro trigensimo nono ad edictum). 17Birley, The Roman Government of Britain, 71. 18Frere, Britannia, 143–146. 19de Martino, Storia, vol.4.2, 721. 20Ibid., 735–6. 21A. Burdese, Manuale di diritto pubblico Romano, Torino, 1966, 201–2. 22A good example of such activity was presented by Tacitus in On the Life of Julius Agricola, 21. According to Tacitus, his father-in-law encouraged the Britons to use Roman dress, to go to the baths, to participate in Roman-style feasts and to use Latin. In the opinion of F. Haverfield the usage of Latin may have been quite widespread. There are no traces of the use of any native Celtic language in any inscriptions in Britain while in France many of such inscriptions were found. Although Haverfield's opinion was formulated nearly a century ago it is still probable, see F. Haverfield, Romanization of Roman Britain, Oxford, 1915, 75–6. There are, indeed, a few post-Roman bilingual inscriptions written in Irish Ogham script and in Latin, but they originate from a different historical epoch and they are presumably connected with Irish migration to Britain in early medieval times. Thus, they are irrelevant to the Romano-British culture. See further C. Thomas, And Shall These Mute Stones Speak? Post Roman Inscriptions in Western Britain, Cardiff, 1994. 23W. Litewski, Rzymski proces cywilny [Roman Civil Trial], Kraków, 1988, 35. 24Ibid., 76. 25Jolowicz, Historical Introduction, 416. 26 Frere. Britannia, 183. 27Jolowicz, Historical Introduction, 412. 28de Martino, Storia, vol.4.2, 732; C. Julian, ‘Iuridicus’, in Le Dictionnaire des Antiquités Grecques et Romains, vol.3, Paris, 1900, 715. 29Julian, ‘Iuridicus’, 715. 30Birley, The Roman Goverment of Britain, 268. 31Ibid., 270. 32About the legati iuridici see further L.J. Korporowicz, ‘Dzialalnosc legati iuridici w rzymskiej Brytanii’ [The Activity of ‘Legati Iuridici’ in Roman Britain], 82 Studia Prawno-Ekonomiczne (2010), 69–80. 33Frere, Britannia, 185. 34Birley, The Roman Goverment of Britain, 11. 35Frere, Britannia, 187. 36A.R. Birley, Septimius Severus. The African Emperor, London and New York, 2000, 191. The date of the subdivision of the province is hard to determine. Herodian wrote in his History of the Empire 2.8.2 that the subdivision was made in the first years of Septimius Severus's reign soon after the victory over Clodius Albinus. Modern scholars are much divided in their opinions. According to A.R. Birley, Herodian's testimony is a simple mistake. In the opinion of the authors of The Cambridge Ancient History Herodian's testimony is authentic, see S.A. Cook, F.E. Adcock, M.P. Charlesworth and N.H. Baynes, eds., The Cambridge Ancient History, vol.12, The Imperial Crisis and Recovery A.D. 193–324, Cambridge, 1961, 35. A new thesis was recently presented by J.C. Mann. In his opinion there were two subdivisions. The first subdivision took place in 197 AD, during Septimius Severus's reign, and later in 215 AD, during Caracalla's reign, the shape of borders of the two provinces was revised, see J.C. Mann, ‘The Division of Britain in A.D. 197’, 119 Zeitschrift für Papyrologie und Epigraphik (1997), 251–4. 37Shotter, Roman Britain, 99. 38Diocletian ruled first, from 284 until 286, alone. Later, due to administrative reform, he ruled together with Maximian, Galerius and Constantinus Chlorus. 39For Diocletian's reform see Jolowicz, Historical Introduction, 439 ff. 40F. de Martino, Storia della costituzione romana, vol.5, Napoli, 1967, 269. The existence of the fifth province is very controversial. Some scholars believe that Valentia was a new name of the Maxima Caesariensis. In the opinion of others such a province did not exist at all, see J.G.F. Hind, ‘The British “Provinces” of Valentia and Orcades’, 24.1 Historia: Zeitschrift für Alte Geschichte (1975), 101–11. 41Martino, Storia, 269–70. 42A.H.M. Jones, The Later Roman Empire 284–602. A Social, Economic and Administrative Survey, vol.1, Oxford, 1964, 374. 43Birley, The Roman Government of Britain, 404. 44Frere, Britannia, 199. 45Birley, The Roman Government of Britain, 404. 46 Jones, The Later Roman Empire, 374. 47A. Berger, Encyclopaedic Dictionary of the Roman Law, Philadelphia, 1953, 397. 48 Notitia Dignitatum, Occidentis 11.37. 49 Notitia Dignitatum, Occidentis 11.60. 50Birley, The Roman Government of Britain, 401. An extensive passage of the Notitia Dignitatum (ch.40) was devoted to the dux Britanniarum and his subordinates. 51Extensive researches which concern the Saxon shore were collected in D.E. Johnston, ed., The Saxon Shore, London, 1977. 52In the opinion of H.R. Loyn the defence was ineffective. Contemporary archaeological surveys show a large amount of Romano-Saxon pottery which is dated to the fourth century AD, see H.R. Loyn, Anglo-Saxon England and the Norman Conquest, London, 1972, 29. 53Frere, Britannia, 225. 54G.1.5. 55D. 1.4.1.pr (Ulpianus libro primo institutionum). 56Jolowicz, Historical, 376–83. 57Ibid., 378. 58Ibid., 380. 59D. 28.3.6.7 (Ulpianus libro decimo ad Sabinum). It is possible that the same rescript was commented on by Papinianus in D. 29.1.34.pr (Papinianus libro quarto decimo quaestionum). 60D. 28.6.2.4 (Ulpianus libro sexto ad Sabinum). 61There are no epigraphic or literary sources that could attest A.R. Birley's theory, see Birley, The Roman Government of Britain Government of Britain, 185. 62C. Th. 11.7.2. 63As to coloni see Berger, Encyclopaedic Dictionary, 396. The term tributarius is more obscure. According to A. Berger tributarius refers to any kind of tax payer (ibid., 744). The usage of the term in Roman legal sources is very rare. It always characterizes, however, the servant–master relation, see further M. Mirković, The Later Roman Colonate and Freedom, Philadelphia, 1997, 108. 64C.E. Stevens, ‘A Possible Conflict of Laws in Roman Britain’, 37 The Journal of Roman Studies (1947), 132–4. 65C. Th. 9.36.1. 66The regnal years of each of those three emperors differ. Valentinian II ruled the Empire from 375 until 392. Theodosius I was Valentinian's co-emperor in the East from 379 until 392 and later he ruled the entire Empire until 395. Arcadius, on the other hand, was co-ruler from 383 until 395 and later he became the ruler of the eastern part of the Empire until 308. At the same time the ruler of the West was Arcadius's brother Honorius. 67Birley, The Roman Government of Britain, 451. 68About the rescript and its authenticity see C. Callevaert, ‘Le rescrit d'Hadrien à Minicius Fundanus’, [1903] Revue d'Histoire et de Littératur Religieuses, 174–81. 69D. 36.1.48. 70D. 49.15.6. 71Birley, Roman Britain, 87, 93–5. 72Although in the original version of the passage the term woman (mulier) was used in all translations and commentaries upon that passage the woman is considered as a slave. Recently see also A. Wacke, ‘Pomponius Dig. 49.15.6: Ein Kriminalfall um Menschenraub und Lösegeldzahlung aus dem nördlichen Britannien’, in A. Palma, ed., Scritti in onore di Generoso Melillo, vol.3, Napoli, 2009, 1473–503. 73See W.W. Buckland, Roman Law of Slavery, Cambridge, 1908, 93–4. 74D. 12.1.40 (Paulus libro tertio quaestionum). 75C.P. Sherman, ‘The Romanization of English Law’, 23.4 Yale Law Journal (1914), 318. 76D. 48.5.2.6 (Ulpianus libro octavo disputationum). 77See J. Harries, Law and Crime in the Roman World, Cambridge, 2007, 99. 78This traditional view seems to be less accurate than it was believed to be in the past. For recent research on the written records of legal acts in Roman law see E.A. Meyer, Legitimacy and Law in the Roman World, Cambridge, 2004, 36–43. 79For written contracts in Roman law, see further Buckland, Text-Book, 459–61; A. Watson, The Law of Obligations in the Later Roman Republic, Oxford, 1965, 18–39. As to the decline of written contracts in the later Roman Empire, see S. Riccobono, ‘Stipulatio ed instrumentum nel Diritto giustinianeo’, 43 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Romanistische Abteilung (1922), 326–37. Besides private use, written contracts were used also as a tool of the financial accounting process by the Roman bankers, see I. Babják, ‘Contractus litteris und die Bankbuchhaltung der Römer’, 48 Revue Internationale des droits de l'Antiquité (2001), 11–17. 80E.G. Turner, ‘A Roman Writing Tablet From Somerset’, 46 The Journal of Roman Studies (1956), 115. 81It is necessary to remember that the provincial land (praedia provincialia) was not an object of ordinary Roman land law and so the contract of sale could not be applicable. Official ownership of provincial land belonged to either the emperor or the Roman populus, but its holders were acting just as if they were ordinary owners. The transfer of the land could not be achieved by formal civil law methods, but the provincial inhabitants used instead traditio as a sufficient method (see G. 2.20–21). In the opinion of F. Schulz the ownership of provincial land was ‘of a special kind subject to a mixture of Roman and peregrine law’ (F. Schulz, Classical Roman Law, Oxford, 1951, 341). See also T. Frank, ‘Dominium in solo provinciali and ager publicus’, 17 The Journal of Roman Studies (1927), 141–61, and A.H.M. Jones, ‘In eo solo dominium populi romani est vel caesaris’, 31 The Journal of Roman Studies (1941), 26–31. 82D. 18.1.59 (Celsus libro octavo digestorum). See also Turner, ‘A Roman Writing Tablet’, 118. 83R.S.O. Tomlin, ‘A Roman Writing Tablet from the Walbrook, London’, 68 Antiquaries Journal (1988), 306, and R.S.O. Tomlin, ‘A Five-Acre Wood in Roman Kent’, in J. Bird, M.W.C. Hassall and H. Sheldon, eds., Interpreting Roman London. Papers in Memory of Hugh Chapman, Oxford, 1996, 209–15. The archaeological work that has been undertaken for many years at Walbrook and nearby brought many interesting discoveries from the Roman period, see D. Lees, A. Woodger and C. Orton, ‘Excavations in the Walbrook Valley’, 6.5 London Archaeologist (1989), 115–19. 84Buckland, A Text-Book, 675–6. 85D. 19.1.1.pr (Ulpianus libro vicesimo octavo ad Sabinum). 86D. 22.3.2 (Paulus libro sexagesimo nono ad edictum). 87R.S.O. Tomlin, ‘A Roman Will from North Wales’, 150 Archaeologia Cambrensis (2001), 143–56. 88Ibid., 150. 89See J. Davies, ‘Soldier and Civilian in Wales’, in M. Todd, ed., A Companion to Roman Britain, Malden and Oxford, 2004, 91–113. The difference in the level of Romanization of England and Wales is a very complex issue. It was revealed recently that near Aberystwyth, archaeologists have found the remains of a Roman villa from the fourth century. The area was generally considered to have been a Roman military zone without any civilian population. See e.g. ‘Remains of Roman Villa Near Aberystwyth Discovered’, http://www.bbc.co.uk/news/uk-wales-mid-wales-10753974. 90R.S.O. Tomlin, ‘The Girl in Question: a New Text from Roman London’, 34 Britannia (2003), 41–51; G. Camodeca, ‘Cura secunda della Tabula cerata londinese con la compravendita della puella Fortunata’, 157 Zeitschrift für Papyrologie und Epigraphik (2006), 225–30. 91Ibid., 46. 92G. 1.119. 93Other examples of purchasing with the use of mancipatio by a slave are attested, e.g. in one of the Cicero's letters (Cicero, Letters to Atticus 13.50.2) or a tablet found in the nineteenth century in Romania (FIRA III.88). See also W.W. Buckland, ‘Mancipatio by a Slave’, [1918] Law Quarterly Review, 372–79, and H. Ankum, ‘Mancipatio by Slaves in Classical Roman Law’, [1976] Acta Juridica, 1–18. 94Tomlin, ‘The Girl’, 47. See also Berger, Encyclopaedic Dictionary, 504. 95An excellent description of the tablets and the way of life at the Roman camp can be found in A.K. Bowman, Life and Letters of the Roman Frontier, London, 1994. 96Tab. Vind. II.343. 97Tab. Vind. II.348. 98Tab. Vind. II.193. 99Tab. Vind. II.181. 100B. Dobson and J.C. Mann, ‘The Roman Army in Britain and Britons in the Roman Army’, 4 Britannia (1973), 198 ff. 101H. Chapman, ‘Letters from Roman London’, 2.7 London Archaeologist (1974), 176. 102The legal context of the letter is certain; however, the phrase is difficult to translate. The verb redigo, redigere has multiple meanings and it is hard to determine which was intended in the letter. It is possible that the phrase means ‘to exact some money (coins) from the girl’, see ibid., 174. 103A few examples of such diplomas were featured by S. Ireland in his book S. Ireland, Roman Britain. A Sourcebook, Abingdon, 2008, 218–19. 104A.N. Sherwin-White, The Roman Citizenship, Oxford, 1973, 245–6. 105F.N. Pryce, ‘A New Diploma for Roman Britain’, 20 The Journal of Roman Studies (1930), 15–23. 106The diploma from Malpas, Cheshire (RIB II.1.2401.1) contains 15 units and the diploma from Sydenham, Kent (RIB II.1.2401.2) contains twelve units. 107Pryce, ‘A New Diploma’, 21. 108B. Ankarloo and S. Clark, eds., Witchcraft and Magic in Europe: Ancient Greece and Rome, London, 1999, 3. 109Ibid., 4–5. As to the term, it is possible also to find other descriptions of ‘legal tablets’, e.g. pleas for justice and revenge (J.G. Gager, Curse Tablets and Binding Spells from the Ancient World, Oxford, 1999, 177) or juridical prayers (G.W. Adams, ‘The Social and Cultural Implications of Curse Tablets (defixiones) in Britain and on the Continent’, 7A.5 Studia Humaniora Tartuensia (2006), 4, http://www.ut.ee/klassik/sht/). 110Adams, ‘The Social’, 10. 111One of the best examples of such legal Latin borrowings is the tablet denominated as Uley 43. Its author used in the text the phrase dolum malum, which is taken straight from Roman law, and a strange phrase – max[i]mo [le]to adigas. Use of the verb adigere and letum instead of mors to describe death seems to have a legal background as well, see J.N. Adams, ‘British Latin: The Text, Interpretation and Language of the Bath Curse Tablets’, 23 Britannia (1992), 7–8. 112Such difficulties would not be unprecedented. In chapter 84 of the Lex Irnitana it was said that in the case of theft the jurisdiction was not entrusted to the municipal magistrates even if the value of the matter in dispute was less than 1000 sesterces. This meant that all cases that involved theft should be dealt with by officials at provincial, not municipal, level. The difficulties of such a situation are easy to imagine. For the text and translation of chapter 84 of Lex Irnitana see J. González, ‘The Lex Irnitana: A New Copy of the Flavian Municipal Law’, 76 The Journal of Roman Studies (1986), 195. For more about chapter 84 itself see A. Rodger, ‘The Jurisdiction of Local Magistrates: Chapter 84 of the Lex Irnitana’, 84 Zeitschrift für Papyrologie und Epigraphik (1990), 147–61. 113See T.G. Watkin, ‘Ceremonies, Survivals and Syncretism: Ritual Search in Roman Law and The Native Laws of Wales’, in F.M. d'Ippolito, ed., ϕιλíα. Scritti per Gennaro Franciosi, vol.4, Napoli, 2007, 2863. 114About Roman law in Sub-Roman Britain see M.E. Jones, ‘The Legacy of Roman Law in Post-Roman Britain’, in R.W. Mathisen, ed. Law, Society, and Authority in Late Antiquity, Oxford, 2001, 52–67; Watkin, ‘Ceremonies’, 2851–64; and T.G. Watkin, ‘The Death and Later Life of Legal Symbols. Welsh Legal Symbols after the Union with England’, in R. Schulze, ed., Symbolische Kommunikation vor Gericht in der Frühen Neuzeit, Berlin, 2006, 214–15.
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