Cap. IV: Anna Tarwacka,
Romans and Pirates. Legal
Perspective, [Arcana Iurisprudentiae, 1] Warszawa, Wydawnictwo Uniwerystetu Kardynala
Stefana Wyszynskiego, 2009, pp. 199. isbn 978-83-7072-583-9
University
«Cardinal Stefan Wyszynski»
Warsaw
Pirate – An enemy of all mankind or
just a bandit?
Sommario: 1. Status of pirates in the light of
Roman ius belli and ius gentium. – 1.1. Introductory
remarks. – 1.2. Bellum
iustum
and the conflict with pirates. – 1.3. The
problem of granting a triumph for victory over pirates.
– 2. The term pirata as a form of political insult.
– 2.1.
– Example of Sextus Pompeius. – 3. Consequences of the piratical
captivity. – 3.1. Status of persons captured by pirates. – 3.2. Pirate prisoners and the ius postliminii. – 3.3. The
rights of the pirate captives. – 3.4. Situation of the redemptus a piratis.
1. – Status of pirates in the light of Roman ius belli and ius gentium
1.1. –Introductory remarks
Many contemporary
researchers equate Roman idea of land and sea banditry, treating piracy as one
of the kinds of banditry, not as a separate crime[1].
Meanwhile, from the historical point of view, this thesis may be maintained
only for the period of principate and dominate, because earlier piracy
constituted a sui generis crime,
being a threat on a global scale, not only locally. Bandits have always
constituted a part of reality and they were treated as an obvious danger for
those travelling by land[2].
The threat level on their part was not changing significantly.
The pirates’
insolence was growing gradually to reach its apogee in the 1st century BC.
Initial powerlessness of Rome in the fight against them deepened the anxiety of
the society. Buccaneers started to be defined as enemies of all mankind[3],
and combating them was treated as an obligation of all countries. It seems,
that was something which made piracy a separate criminal category, visibly
differentiating it from land banditry.
Only after the threat
of piracy had been overcome, in the period of classical law this
differentiation became unnecessary, because sea banditry, just as land
banditry, came down to local role. The republican episode however was of great
significance from the point of view of the theory of law and it should not be
omitted in the research on the status of pirates.
1.2. – Bellum iustum and the
conflict with pirates
The problem of applying legal norms iuris gentium or Roman law, in particular the law of war, with respect to the pirates has been raised many times both in legal, as well as in literary sources. Their authors asked questions, if the pirates were entitled to the name of hostes rei publicae, if the defeat of them gave the victorious leader the right to celebrate a triumph.
In the light of Roman
law, war was an institution subject to ius fetiale, the branch of law subject to religion,
cultivated by priestly college of fetiales [4].
According to Cicero[5],
this law was established by Tullus Hostillus, third of the Roman kings.
However, Livy stated that ius fetiale was based on the law of ancient
Aequiculi people, which was described by the forth king, Ancus Marcius[6].
Max Kaser[7]
emphasized the sacral nature of ius fetiale and its formalization, which was most visibly in the ceremony of
declaring war, which was compared to setting up a dispute in the procedure of
litigation. The priest took an oath to Jupiter on behalf of the Roman people
and made a sacrifice of pig – the course of the ceremony has been
described in detail by Livy[8].
With time the tasks of fetiales were gradually taken over by the
senators serving as legates, but one still referred to ius fetiale.
According to Cicero,
the just war (iustum piumque bellum[9])
is fought only, if it has been declared by Fetiales against hostis[10] iustus et legitimus[11].
During such war it was allowed by law to kill enemies, take them prisoners and
appropriate their property. However, one had to adhere to oaths and law of war,
as well. Cicero dealt with this issue, discussing the case of M. Atilius
Regulus[12],
who – having been captured by the Carthaginians – was sent to Rome
to negotiate the release of Carthaginian prisoners in exchange for his freedom.
Regulus presented his mission in the senate, but refused to participate in the
session, believing that until he was bound by ius iurandum given to the enemies, he was not a senator.
In addition, he advised against releasing the Carthaginian prisoners and
– as the senate followed his advice – went back to Carthage, where
he was executed. Cicero tried to explain the significance of ius iurandum,
the oath taken to Jupiter and proved that it had to be absolutely adhered to if
it was given to an enemy[13]:
Cic.
De off. 3,29,107-108
Est autem ius etiam bellicum
fidesque iuris iurandi saepe cum hoste servanda. Quod enim ita iuratum est, ut mens conciperet fieri oportere, id
servandum est; quod aliter, id si non fecerit, nullum est periurium. Ut, si
praedonibus pactum pro capite pretium non attuleris, nulla fraus est, ne si
iuratus quidem id non feceris. Nam pirata non est ex perduellium numero
definitus, sed communis hostis omnium; cum hoc nec fides debet nec ius iurandum
esse commune. Non enim falsum iurare periurare est, sed quod ex animi tui
sententia iuraris, sicut verbis concipitur more nostro, id non facere periurium
est. Scite enim Euripides: "Iuravi lingua, mentem iniuratam gero".
Regulus vero non debuit condiciones pactionesque bellicas et hostiles
perturbare periurio. Cum iusto enim et legitimo hoste res gerebatur, adversus
quem et totum ius fetiale et multa sunt iura communia. Quod ni ita esset, numquam claros viros senatus vinctos hostibus
dedidisset.
So the pirates were
not deemed hostes legitimi. As
this term covered only hostile countries and organized societies[14]
– gentes. In Cicero’s opinion, pirates constituted the
enemies of the whole mankind[15]:
nam pirata non est ex perduellium numero definitus, sed communis hostis
omnium. What implications did it have in the sphere of the law of war?
Definitely, the oaths sworn to pirates were not binding: ut si praedonibus
pactum pro capite pretium non attuleris, nulla fraus est, ne si iuratus quidem
id non feceris. (...) cum hoc nec fides debet nec ius iurandum esse commune. So there was no obligation to pay a ransom
promised to the pirates for sparing one’s life. One did not need to pay
it either in case of concluding an ordinary pactum,
or in case of taking the oath in the form of iusiurandum. The opinion of Cicero is confirmed by legal sources.
D.
50,16,118 (Pomponius libro secundo ad
Quintum Mucium)[16]
‘Hostes’ hi
sunt, qui nobis aut quibus nos publice bellum decrevimus: ceteri latrones aut
praedones sunt.
D. 49,15,24 (Ulpianus libro primo institutionum)
Hostes sunt quibus
bellum publice populus Romanus decrevit vel ipsi populo Romano: ceteri
latrunculi vel praedones appellantur.
To determine the
groups against which the Roman people did not conduct a properly declared war,
the jurists used the terms latrones (latrunculi) or praedones.
The word latro means a
common criminal, robber. Whereas the term praedo was used to generally
determine bandits, but often had also a narrower meaning and referred to
pirates[17],
sometimes with an attribute maritimus[18].
The legal status of those two groups was similar to each other[19].
It happens that the texts mention them both or only one, however it should be
assumed that the regulations concerning latrones cover the pirates as
well.
However, the issue of
slightly more profound interpretation of Pomponius’[20]
text seems also interesting. The part discussed comes from the second book of
his comment to the works of Quintus Mucius[21].
So, one should ask a question, to what extent the view presented reflected the
beliefs of the latter one and whether the commentator quoted, discussed or
interpreted them. Quintus Mucius Scaevola Pontifex[22],
one of the greatest jurists of the pre-classical law period, the head of the
College of Pontiffs, consul of 95 BC, was the author of an excellent work De iure civili, covering 18 books,
deemed the first systematical lecture of the private law dividing the matter
according to genus[23].
Some parts of
Pomponius’ comment contained in Digesta
include an introduction Quintus Mucius
scribit, which makes it possible to correctly ascribe their authorship to
Scaevola. However, it cannot be excluded that also others are quotations from De iure civili. Otto Lenel placed
however this part only in the reconstruction of Pomponius’ work, and not
in De iure civili of Scaevola[24].
The thirty seventh
book of Pomponius’ work concerned the institution of postliminium and ius belli[25].
It discussed the issues related to the imprisonment by the enemies[26],
postliminium in pace[27],
problems considering the immunity of envoys[28].
The definition of hostes should be
also contained in the book but surprisingly it comes from the second book. This
could suggest that Pomponius devoted the beginning of his work to
terminological issues. According to Lenel, this book considered testaments,
which is indicated also by other parts coming from it[29].
In such a situation the definition of hostes
seems to be a digression, departure from the main discussion.
Despite common views
on the status of pirates, the terms used by Pomponius and Ulpianus sound even
slightingly in comparison with Cicero’s communis hostis omnium. It
seems that this results from the different historical realities, in which the
authors of texts worked. The last century of the Roman republic was a period of
extremely intensive piratical activity[30].
The Romans defeated the powers of the Hellenistic world, which until that time
guarded the peace at seas, failing to take over this function by themselves[31].
A common view is that piracy was a convenient source of slaves for Rome[32].
This is why navigation became dangerous, and it was difficult for the Romans to
take control of the plague of buccaneers. Only Pompey’s campaign
conducted after the lex Gabinia de uno imperatore contra praedones
constituendo in 67 BC, appeared to
be effective and limited the insolence of pirates. So the Romans of
Cicero’s period treated pirates as dangerous opponents and although they
did not grant them the status of hostes legitimi, they were afraid of
them[33].
Whereas principate brought a significant enhancement in the navigation safety,
which resulted in the change of attitude towards pirate bands. They started to
be treated as groups of common criminals, latrunculi.
Cicero’s definition however, had a great influence on Roman view
concerning piracy, which may be confirmed by the part of Natural history of Pliny the Elder.
Plin.
Nat. hist. 2,117
quo magis miror orbe
discordi et in regna, hoc est in membra, diviso tot viris curae fuisse tam
ardua inventu, inter bella praesertim et infida hospitia, piratis etiam, omnium
mortalium hostibus, transituros fama terrentibus, ut hodie quaedam in suo
quisque tractu ex eorum commentariis, qui numquam eo accessere, verius noscat
quam indifgenarum scientia, nunc vero pace tam festa, tam gaudente proventu
rerum artiumque principe, omnino nihil addisci nova inquisitione, immo ne
veterum quidem inventa perdisci.
Describing the
difficulties of the researchers of the climate, among the dangers awaiting the
travellers, Pliny lists also pirates, whom he calls the enemies of every man.
Cicero’s
expression communis hostis omnium carries
implications in the sphere of the ius gentium. It means that the
pirates should be pushed onto the margins of law by all organized societies
which should also unite in the fight against piracy[34].
Also Florus
observed the Cilician pirates’ violation of the norms iuris gentium.
Flor.
1,41
Cilices invaserunt
maria sublatisque commerciis, rupto foedere generis humani, sic maria bello
quasi tempestate praecluserunt.
The author referred to
foedus of human kind, a form of
treaty, that is the norms applicable for all people, which were violated by the
buccaneers[35].
A very interesting
comment on this issue comes from the Controversiae by Seneca the Rhetorician, author of the period of the turn of republic and
principate. Seneca discussed in a typically schoolish manner a number of issues
concerning different kinds of crimes, quoting different speakers and commenting
them for the use of his son. One of the disputes discusses the following case[36]:
at the father’s request, a young man was to kill his brother, accused of parricidium,
by means of poena cullei[37].
Not having had enough courage to kill him, he put the convict in a boat
without rigging and pushed it to the open sea. His brother survived, got to a
pirate band and became their leader. He kidnapped his father, who was
travelling, and then released him. After having returned, the father
disinherited the son, who had not carried out the order and released the
brother.
The basis of mental
construction when forming defence line is the fact that the order to kill the
brother constitutes encouraging to parricidium, that is to the very
crime, for which the convict had been accused of. The fragment describing the
act of releasing the father by his son the archipirate
seems very interesting. The comment to his behaviour is as follows: Naturae
iura sacra sunt etiam aput piratas[38]. So in the opinion of Seneca the Elder
there are some laws respected even by the pirates. What are these laws? The
term iura naturae suggests that it concerns the norms common for every
living creatures[39].
D. 1,1,1,3 (Ulpianus libro primo institutionum)
Ius naturale est, quod natura omnia
animalia docuit: nam ius istud non humani generis proprium, sed omnium
animalium, quae in terra, quae in mari nascuntur, avium quoque commune est.
hinc descendit maris atque feminae coniunctio, quam nos matrimonium appellamus,
hinc liberorum procreatio, hinc educatio.
Ulpianus visibly
differentiated between ius naturale and ius gentium, which he considered the norms common for all
human nations. Whereas Gaius[40],
composing one century earlier, omitted the category of natural law, deeming
common sense the prime mover of creating iuris gentium principles.
D. 1,1,9 (Gaius libro primo institutionum)
quod vero naturalis ratio inter
omnes homines constituit, id apud omnes peraeque custoditur vocaturque ius
gentium, quasi quo iure omnes gentes utuntur.
A similar thinking
schema appeared much earlier with Aristotle, who differentiated between written
law applicable for the entire society and unwritten laws common for every man:
Arist.
Rhet. A.10.1368b
novmo" d! ejstin
o} me;n i[dio"
o} de; koinov": levgw
de; i[dion
me;n kaq! o}n gegrammevnonpoliteuvontai, koino;n de; o}sa a[grafa para; pa'sin oJmologei'sqai dokei'.
So Seneca was of opinion that even pirates adhere to some basic norms. The
existence of such opinion is confirmed also by Cicero’s way of thinking
in the treaty De officiis.
Cic.
De off. 2,11,40
ne illi quidem, qui maleficio
et scelere pascuntur, possint sine ulla particula iustitiae vivere. Nam qui
eorum cuipiam, qui una latrocinantur, furatur aliquid aut eripit, is sibi ne in
latrocinio quidem relinquit locum, ille autem, qui archipirata dicitur, nisi
aequabiliter praedam dispertiat, aut interficiatur a sociis aut relinquatur;
quin etiam leges latronum esse dicuntur, quibus pareant, quas observent.
However,
Cicero’s statement proves that adhering to some norms by pirates and
bandits results only from their mutual dependence and lack of possibility to
exist outside the criminal group. So observing the principles does not result
from acknowledging their rightness, but rather from compulsion. It should be
also mentioned that some ancient authors confirmed the reliability of
agreements concluded with the pirates[41].
The problem of lack of
binding force of oaths taken to pirates, raised by Cicero, occurs in another
one from among the Controversiae of
Seneca the Elder. The Rhetorician discussed the case of a man kidnapped by
pirates, whose father did not pay ransom[42].
The daughter of the leader of the band agreed to release him, after he had
promised to marry her. She escaped with him, and he – according to his
promise – married her. Meanwhile the father ordered him to divorce and
marry an orphan[43].
He refused, so the father decided to disinherit him.
One of the
basic problems, which were considered in this case, regarded the status of the
pirate’s daughter, because on this depended the assessment of validity of
the promise depended. Iulius Bassus[44], whose statement was quoted by
Seneca, emphasized: Archipiratae filia vocatur, puto, ex aliqua nata
captiva; certe animum eius natura a patre abduxerat: misericors erat,
deprecabatur, flebat, movebatur periculis omnium. nihil in illa deprehendi
poterat piraticum[45]. The
girl’s mother has probably been kidnapped by buccaneers, and the
daughter’s sympathy shown for the prisoner confirms that she rather did
not inherit her father’s character. This is why she cannot be blamed for
her social status. It should be assumed that – as the girl is not
included in pirates’ circle – the oath taken is binding. However,
what attracts attention is the statement of Glykon[46] –
quoted further in the text – who stated that even pirates acknowledged
the validity of oaths: tolerabilem dixit illam rem, cum iuris iurandi vim
describeret: hoc esse, quod foedera sanciret, quo astringerentur exercitus: o{rko" ejsti;n pei'sma
kai; para; peiratai'" pepisteumevnon[47]. Glykon emphasized the significance of iusiurandum
in the law of war and added that even pirates acknowledged its validity.
This statement is however not contradictory to Cicero’s opinion, who
questioned only the validity of oaths taken to pirates, and agreed that they
also obeyed some rules, forced by the necessity of life in the group pushed
onto the margin of the society.
To sum up, it should be underlined that the promise made to the
pirate’s daughter was binding, because one cannot automatically ascribe
the father’s status to her. Such solution is the more justified, as
– according to the norms of the ius gentium – the child inherits its mother’s status[48].
This rule should be applied in the situation discussed. In this respect the
order to divorce was contrary to good customs, and disinheritance may be treated
as betraying the father’s officium.
1.3. – The problem of granting a triumph for victory over
pirates
Whereas the texts
quoted above show irrefutably that the conflict with pirates was not treated as
bellum in a technical meaning,
the victory in it was not deemed sufficient reason to celebrate a triumph[49].
Gell.
N.A. 5,6,21
Ovandi ac non
triumfandi causa est, cum aut bella non rite indicta neque cum iusto hoste
gesta sunt, aut hostium nomen humile et non idoneum est, ut servorum
piratarumque, aut deditione repente facta, „impulverea”, ut dici
solet, incruentaque victoria obvenit.
Gellius[50]
stated that – if the war had not been properly declared or if the enemy
came from low social classes, such as slaves or pirates – the general was
entitled only to celebrate an ovation, not a triumph[51].
It is curious in this text that the author differentiates between the war
declared improperly, fought with an enemy not deemed iustus and war with enemies, whose status is low[52].
It seems that Gellius did not deny that the war with pirates constituted bellum
iustum. In his opinion, lack of
right to celebrate a triumph by the victorious general was only due to
disgraceful status of the enemy. It seems that this statement simply lacks
legal precision, which may result from the fact that Gellius did not use
jurists’ works within this scope[53].
From the historical
point of view, the opinion of lack of possibility to celebrate a triumph after
victory over pirates started to develop only in the 1st century BC. Plutarch
wrote in Life of Pompey that after
the Cilician campaign led in 102 BC against pirates, Antony celebrated triumph[54].
Similar information was also given by Cicero with respect to Publius Servilius
Isauricus, who entered Rome in triumph after victory in military actions in
Cilicia in the years 78-74 BC. His statement shows that this triumph was of
great importance for the Romans: it signified the defeat of the enemy that
everybody was afraid of[55].
Servilius won great popularity presenting captured pirates in many towns on his
way to Rome[56].
However, the triumph
celebrated by Pompey in 62 BC was formally granted to him for the victory in
the war against Mithridates and Tigranes, and not for the campaign against
pirates. It does not change the fact that for the Romans the victory in the
campaign against pirates constituted a significant part of this triumph, one of
the motives to grant it. This was emphasized by Pliny the Elder quoting praefatio
of Pompey’s triumph [57]:
Cum oram maritimam praedonibus liberasset et imperium maris populo Romano
restituisset ex Asia Ponto Armenia Paphlagonia Cappadocia Cilicia Syria Scythis
Iudaeis Albanis Hiberia insula Creta Basternis et super haec de rege Mithridate
atque Tigrane triumphavit. Valerius Maximus[58]
listed all the victories of Pompey from that period as a basis of the
senate’s decision: Mitridate et
Tigrane, de multis praeterea regibus plurimisque civitatibus et gentibus et
praedonibus unum duxit triumphum[59].
Pompey’s victory
over pirates was in fact the subject of heated discussions. Cicero himself
described it in his various works in completely different categories, sometimes
contradictory to each other. Delivering the speech concerning entrusting Pompey
with the leadership in the war against Mithridates, the orator purposely avoided
the term pirates or campaign against pirates. Instead of this he was talking
about sea war: bellum maritimum[60]
or bellum navale[61].
The status of the defeated enemy was so low that this could be not enough to
dazzle the listeners and ensure Pompey the imperium. Therefore Cicero
resorted to rhetorical tricks which were to equal Pompey’s achievements
with the victories of such leaders as Scipio or Marius[62].
The use of the term bellum[63]
reserved for the actions against iustus hostis was also to serve the
enhancement of prestige.
Cicero realized the
fact that until that time Pompey fought against ordinary thugs: they included
slaves participating in Sparcatus’ revolt, Sertorius’ rebels or
pirates. Therefore he used all his oratory abilities to increase the rank of
these victories. When Magnus (Pompeius
Magnus) came back from Asia as the vanquisher of Mithridates, he did not
need additional praises any more. Triumph was granted to him exactly for that
last victory, because it fulfilled all formal requirements.
Whereas in the speech
directed to the senate in 57 BC, Cicero referring to the lex Gabina[64]
used the expression rogatio de piratico bello. Again, this was for
rhetorical purpose. The speaker wanted to slander Aulus Gabinius, the initiator
of the plebiscite, consul of 58. He suggested that if the project had not been
examined positively by the assembly, poverty would have forced Gabinius to
occupy himself with piracy: quo in magistratu nisi rogationem de piratico
bello tulisset, profecto egestate et improbitate coactus piraticam ipse
fecisset[65].
So referring to piracy aimed at
evoking negative connotations in the listeners.
It seems that in the
law of the end of pre-classical period and in classical law a coherent system
of norms applicable for the pirates and their activity was applied. The
conflict with the pirates was not treated as bellum iustum on account of failure to fulfil the
condition of proper war declaration and non-state nature of pirate bands. This
resulted in lack of possibility for a general who won in the fight against praedones
to celebrate a triumph. However, it should be emphasized that in the period
of late republic, piracy constituted a separate crime, whereas later
– along with the decrease in the threat – it was equalled with
other types of banditry.
2. – The term pirata as a form of
political insult
Forum Romanum constituted
a theatre of rhetorical art, scene for masterfully delivered both court and
political speeches. The victory in court proceedings, and the more in election,
was decided on many occasions not by objectively perceived truth, but by the
listeners’ opinio communis. If
the orators wanted to win support and establish a thread of communication, they
referred to the views commonly dominating in the society. In order to achieve
this effect, one had to use metaphors and toposes close to an ordinary citizen.
Since in the declining years of the republic piracy constituted a global
threat, certainly it was a problem appealing to thousands of people who proudly
wore togas.
This could not have
escaped the notice of such outstanding politicians as Cicero[66]
or Cesar[67].
Skilfully chosen epithets changed their enemies into dangerous robbers and
bandits[68].
Cicero, in his
speeches, very often calls his opponents pirates. In fact the Arpinate was one
of the first Latin authors using the word pirata.
The first court case, during which the orator proved that the accused was a
man who did not differ from buccaneers, was a case of former governor of
Sicily, Gaius Licinius Verres, which
took place in 70 BC at the quaestio
repetundarum[69].
2.1. – Example of Sextus Pompeius
In Res gestae Divi Augusti[70] there is a part concerning
princeps’ defeat of pirates.
Res gestae Divi Augusti 25:
Mare pacavi a praedonibus. Eo bello servorum,
qui fugerant a dominis suis et arma contra rem publicam ceperant, triginta fere
millia capta dominis ad supplicium sumendum tradidi[71].
Octavian informed that
he had cleansed the sea from pirates and during that war he returned almost
thirty thousand escaped slaves to the owners. The researchers agree that this
mention concerns the so called Sicilian War, a military conflict between
Octavian and Sextus Pompey, son of Pompey the Great, which took place in the
years 42-36 BC[72].
The dispute in the doctrine is aroused rather by the nature of that conflict.
Was the main power constituted by pirates? What was the role of Sextus Pompey?
Ancient sources, both
historiographic and poetic ones, seem to confirm the belief that Sextus was a
crazy young man, who did not inherit any of his father’s, Pompey the
Great, virtues and disgraced his family, fraternizing with pirates and slaves
and conducting criminal activity. Lucanus made Sextus participate even in a
godless necrophage ceremony[73].
Velleius Paterculus[74]
characterized Sextus in the following way.
Vell.
Pat. 2,73,1:
Hic adulescens erat
studiis rudis, sermone barbarus, impetu strenuus, manu promptus, cogitatu
celer, fide patri dissimillimus, libertorum quorum libertus servorumque servus,
speciosis invidens, ut pareret humillimis.
According to Velleius,
this young man had poor education, was characterized by barbarian
pronunciation, lightning decisions, quick hand, swift mind, he was unusually
unlike his father with respect to remaining faithful, freedman of his freedmen,
slave of his slaves, envious of significant persons only to be under the
lowest-born. The author accused Sextus of lack of education, and in particular
he accused him of submission to slaves and freedmen. Undoubtedly he had in mind
the captains of Sextus’ fleet, Menas (according to some sources:
Menodoros) and Menecrates, who are commonly regarded as former pirates captured
during Pompey’s campaign of 67 BC, and then freed[75].
Florus, the author using
the work of Livius, expressed his outrage writing that – while
Sextus’ father fought Cilician pirates – the son occupied himself
with piracy: O quam diversus a patre!
Ille Cilicas extinxerat, hic se piratica tuebatur[76].
A similar view was
represented by Lucanus who determined Sextus as Magno proles indigna parente[77],
i.e. as despicable descendant of Magnus the father (scil. Pompey). He also wrote in a prophetic manner that military
successes of Pompey the Great would become foiled by a Sicilian pirate, i.e.
exactly his younger son: cui mox
Scyllaeis exul grassatus in undis polluit aequoreos Siculus pirata triumphos[78].
Appian[79]
believed that Sextus initially was a robber and pirate, not disclosing even his
name to the companions, and only after he gathered many people around him, he
changed the nature of his activity and announced who he was[80].
In his opinion Sextus must have been out of his mind, since he had not used his
military advantage, but only defended himself. According to Appian, the only
benefit from the activity of the son of Pompey the Great was saving many
proscribed noblemen[81].
The sources show that
the Sicilian war had the following course: after the forming of the second
triumvirate, Sextus Pompey found himself on proscription lists – although
he did not belong to the circle of Caesar’s murderers[82].
Howver, he was not helpless. After Caesar’s death the Roman senate,
counting on restoration of the republican system, granted him the title praefectus classis et orae maritimae[83]. Accordingly Sextus managed to form a
considerably huge fleet with which – after having obtained the news from
Rome – he moved to Sicily making it his base. According to Dio’s
account[84],
he was joined by many deserters, many members of the nobilitas, also those proscribed, and pirates which whom he allied
himself. Sextus’ tactics that consisted in blocking any and all ways of
food supply to Rome, appeared to be unusually effective: the capital city was
in the grip of hunger, there began riots in which Octavian himself suffered[85].
The popularity of the triumvirs decreased so much that Antony[86]
decided even to ally himself with Sextus against Octavian. However, finally he
was reconciled with him again and sealed it with his engagement with Octavia[87].
Octavian himself
seemed to consider Sextus more trustworthy that Antony. He even married
Scribonia, daughter of L. Scribonius Libo, Sextus’father in law, to
facilitate the contact with him[88].
It seems that Sextus’ virtues were subject of praises of his
contemporaries. He, copying his fathers’ aspirations and emphasizing his
loyalty towards him, titled himself Pius (Sextus
Pompeius Magnus Pius), ascribing himself the most important among the Roman
virtues, pietas[89].
At people’s
request in 39 BC triumvirs and Sextus began to negotiate[90],
as a result of which one reached peace agreement. The talks took place at sea,
according to the most of sources near Misenum, port located on the Gulf of
Naples. Appian[91]
whose account contains the greatest number of details mentioned however nearby
Puetoli and certainly the peace talks between triumvirs and Sextus took place
there[92].
This agreement
contained the following provisions: abandonment of blockade of food supply to
Rome, removal of Sextus’ garrisons from the area of Italy, prohibition
for him to take deserters and escaped slaves and to build new ships, assigning
to Sextus administration of Sicily and other Mediterranean islands which he
ruled up to that time, for the duration of the triumvirate and assigning
Peloponnese to him[93],
with the obligation to send taxes to Rome, allowing Sextus to serve as consul in absentia, via a friend[94],
and making him a member of the collegium of Augurs, returning 70 million
sesterces from the property of Pompey the Great to Sextus, return of one fourth
of properties to proscribed noblemen[95],
except for the murders of Caesar and allowing them to serve as magistrates,
giving freedom to slaves serving in Sextus’ army and assigning the other
soldiers the same awards for finishing service, as the soldiers of Octavian and
Antony were to receive[96].
These provisions allow
to conclude that Sextus’ position was very strong. In practice –
although not formally – he became the fourth partner in triumvirate, the
members of which should probably get to be called quattuorviri[97]. However paradoxically, concluding the
agreement deprived Sextus of the basic chief asset, i.e. the support of the nobilitas.
Partial rehabilitation
of those proscribed constituted the execution of the main demand of its
members. The most outstanding companions of Sextus left him, in order to come
back to Rome, and in his camp remained only those who participated in the
assasination of Caesar, since they were not covered with amnesty[98].
Soon after the
agreement had been concluded, the parties began to accuse each other of its
violation[99]
and warfare began again[100].
Sextus managed to achieve advantage on the sea several times, but the Fortune
began to desert him. He was betrayed by one of his closest co-operators,
Menodoros, and soon also the second one, Menecrates, died[101].
His final defeat was dictated when Octavian appointed Mark Agrippa the leader
of his naval forces. It was him who in 36 BC inflicted Sextus a brilliant
defeat in a sea battle near Naulochus not far from Messina. Sextus managed to
escape to Mytilene, therefrom to Asia, then to Miletus where he was killed by
one of the leaders of Antony’s army, Marcus Titius[102].
The sources
unanimously condemned Sextus, emphasizing the contrast of his activities and
the achievements of his father. The authors relished particularly in the
paradox: Sextus pirate the son of vanquisher of the pirates. Referring to the
campaign of 67 BC, Velleius Peterculus wrote contemptuously: …eum non depuderet vindicatum armis ac
ductu patris sui mare infestare piraticis sceleribus[103],
accusing Sextus that he was not ashamed to tarnish the sea with pirate crimes,
which the sea was protected with arms and under his father’s command.
However, the silence of the Res gestae is
most characteristic. Was the Sicilian war of such a low meaning that it
deserved only a name of slave war?
Many scholars accepted
the view on Sextus’ pirate activity believing the sources, which after
all are unanimous in this issue[104].
However, it is puzzling that the Sicilian war occupies an important place in
the work of Appian: according to him it ends the period of civil wars to which
he did not include even the final fight against Antony. Moreover, Suetonius
emphasized that this conflict was the most dangerous one for Octavian who got
into serious trouble during it many times[105].
Also very strong Sextus’ position during peace negotiations and his
earlier alliance with Antony are significant.
This is why at first
one should consider, whether Sextus’ activity was really of pirate
nature. Legal texts do not give the definition of piracy, however one may
attempt to create such term on the basis of literary texts[106].
The Greek word lh/sthv" and Latin pirata (praedo, praedo
maritimus) mean – as mentioned – bandits prowling both, the
land and the sea. The pirates differed from ordinary bandits by the manner of
moving: they sailed. As piracy activity one qualified both, ships robbery,
kidnapping prisoners for ransom and robbing wrecks, as well as attacks on
seaside towns and villages in order to rob them and to gain slaves. It seems
that the most important factor was here the purpose, i.e. getting richer, and
not only the manner of activity. Even if the pirates served the monarchs, as it
may have been in case of Mithridates, they fought for profits, and not for
political reasons.
Sextus Pompey was the
son of one of the greatest politicians of the declining years of the Roman
Republic, Pompey the Great, who turned to be a great loser of the fight for
power or for maintaining republican system. The victory of Caesarean fraction
crossed the chances of Sextus and his older brother for a career worth their
background. The hope to come back to the political game was brought to them by
the Ides of March of 44 BC, the day on which Julius Caesar was murdered. Sextus
was appointed as praefectus classis et orae maritimae by
the senate which wanted to restore him to honours which were granted to his
father and at the same time put him at the head of the forces fighting for
restoring the republic. The conclusion of the second triumvirate and
proscriptions resulting from it closed the road to Rome for Sextus[107].
The only chance to recover the position was joining the fight for power.
The fact that the
members of republican fractions pinned great hopes in Sextus[108]
is certified by their mass inflow to his army. There is no evidence that Sextus
really fought for restoring republican system. Just the opposite, the coins
issued by him prove rather that he was driven by the will to avenge his father
and brother and restore the position of his family[109].
However, this does not change the fact that nomen
gentile itself made him a candidate for the leader of republicans. And this
means that Pompey’s son constituted the same danger for adopted son of Caesar,
as the fathers were for each other. Octavian undoubtedly saw in Sextus –
actually similarly as in Antony – a man capable of not allowing him to
autocracy. Therefore he did all to depreciate him in the eyes of fellow
citizens and at the same time justify his own deeds, which not always were
compliant with law and good customs.
Having been outlawed,
deprived of his property and road to offices, Sextus staked everything on one
card. He disposed of a quite great fleet and this was his chief asset which he
wanted to use[110].
He could not take the liberty of land fights, since he would have certainly
lost. Therefore he applied sea blockade. He knew that hunger would result in
riots in Rome and turn the people against Octavian. This tactics was already
successfully applied by his father during the war with Mithridates[111].
The results of that
blockade were felt in Rome more than during the times of the most daring
pirates’ activity. Is it enough to call Sextus a pirate? It seems that
using the methods of buccaneers does not necessarily decide on being one of
them. Sextus acted for political reasons, and not for profit. He simply used
the only military means available for him.
Ancient authors also
agreed that the basis of Sextus’ army were pirates, and his admirals,
Menes and Menecrates, were certainly archipiratae
captured by his father and then freed[112].
However, none of the sources mentions where Sextus recruited pirates, how many
they were or which role they played in his army. Moreover, nobody was certain
as to the background of Menas and Menecrates. This attitude of source texts
gives a lot to think about. After all the only reason for which the pirates
helped Sextus should have been the desire to get richer. And here they could
hardly count on it. The reason was probably not the affection of praedones towards Pompey the Great[113].
After all, those of the pirates whom he took prisoners were settled in
different towns, granted land and made farmers[114].
If some of them did not accept such change of fate, they were rather not
grateful to Pompey, they could only hate him and this would not facilitate the
recruitment for his son. So there is only the theory left according to which
pirates did not constitute the core of Sextus’ army at all[115].
If that thesis is real, why do all the sources acclaim something else?
Ancient texts
describing the story of the Sicilian war which we have in our disposal come
from the 1st and 2nd centuries AD (or were written on the basis of the work of
Livius) and became the part of the tradition of Augustan historiography, none
of them is independent[116].
So it suggests a conclusion that this was Augustus’ propaganda which
twisted the image of Sextus Pompey[117].
In a similar manner one depreciated Antony who was accused by Augustus of
licentious relationship with Cleopatra and of high treason: preferring Egyptian
interests to Roman reason of state. The story of Antony and Cleopatra became so
distorted that we are not able to justly assess those figures[118].
It seems that Sextus
was at least so dangerous an opponent for Octavian as Antony, hence this
extensive propaganda campaign and an actual damnatio
memoriae in Res gestae. However,
why did the sources attach so much weight to piracy, making it principal
argument when criticizing Sextus?
Octavian certainly
believed that by comparing the blockade of supplies to Rome with piratical
activity he would deprive Sextus of supporters and win popularity in the
capital city. However, the opposite was the case. And despite that, Octavian
hung on tightly to the story on the pirates.
The explanation may be
found with Appian himself.
App.
Bell.civ. 5,77
ejpipolazouvsh" de; uJponoiva"
e[ti, wJ" paraspovndw" oJ povlemo" o{de givgnoito, th;n uJpovnoian oJ Kai'sar ejkluvwn
ejpevstelle th' povlei kai;
to;n strato;n aujto;"
ejdivdasken, o{ti ta;"
oJ Pomphvio" lh/steuvwn th;n qavlassan ajnaluvseie kai; touq¾
oiJ lh/stai; kateivpoien aujtou'.
The excerpt above
shows that Octavian wanted to justify the termination of the agreement of
Misenum/Puetoli regardless of the cost and begin a new war against Sextus. If
he could prove that Sextus was a pirate, it was easy to blame him for the
violation of the provisions of peace agreement[119].
At the same time Octavian authorized all his activities.
The baselessness of the
slanders is certified for instance by the fact that alleged pirates captured by
Octavian testified during tortures that they had been sent by Sextus, which
makes their words doubtful[120].
A significant issue is
the form of concluding the peace agreement. Velleius called it pacis foedus[121],
Suetonius – just pax[122],
and Florus – foedus et pax[123].
Appian and Dio mentioned that it had been written down, sealed and sent to Rome
to be kept with the Vestal Virgins[124].
So what was the legal status of this agreement? The form of its conclusion
indicates on similarity to peace treaties, the form of which was governed by
the ius fetiale. However in this case
the peace was concluded between Roman citizens which hinders its legal classification.
It seems that the parties adhered here to the forms assumed for peace treaties
terminating wars. So this pact was to be binding forever, and its breaking
would be related to serious consequences. The curse for breaking a peace
treaty, concluded by a magistrate in the form of sponsio, burdens the whole state and may be removed only by means
of giving the guilty one to the enemies[125].
This principle applies of course to external wars. So there arises a question
to what extent it may be used with respect to a civil war, which was governed
by slightly other rules[126].
Certainly, betraying such a treaty would have constituted violation of fides, it would have also been a
violation of divine laws on account of the role of the Vestal Virgins in its
conclusion[127].
Velleius seems to confirm this view using the word foedus. This is why Octavian had to find a manner to once again
undertake military actions against Sextus compliant with ius belli.
The Romans were very
scrupulous about all the provisions governing the manner of declaring war, its
conducting and concluding all kinds of agreements. These standards concerned
only the war considered as bellum iustum,
which might be led only against hostis
iustus ac legitimus.
The pirates – as
Cicero wrote – were not considered as hostes
legitimi by Rome and consequently the treaties concluded with them were
invalid: nam pirata non est ex perduellium numero definitus, sed communis
hostis omnium[128] (…)cum hoc nec fides debet nec ius
iurandum esse commune[129].
Praedones constituted the enemies of the whole humankind and it was not
necessary to adhere to any oaths or promises made in contracts with them, or to
be driven by virtue, in particular fides. So, proving that Sextus was
occupied with piracy constituted a convenient justification of violating peace
agreement. Octavian really was an extremely bright pupil of Cicero.
Octavian’s
propaganda was many times intended to legitimize the acts incompliant with law[130]
or morality. His political instinct always suggested him how to get out of
ethically doubtful situations without putting his own reputation in jeopardy.
His rhetoric repeatedly used some catchy slogans to ensure his power appearance
of legality: initially this was avenging the Caesar, then war against the
traitor Antony, then the ideology of the pax Augusta[131]. In case of Sextus using methods
similar to those of pirates suggested Octavian an idea of considering the peace
treaty as invalid on the basis of the ius gentium.
Octavian’s behaviour confirms distinctly how dangerous an opponent
Sextus Pompey was for him. Augustus suffered from a kind of paranoia about him.
The expression of it was the following behaviour.
Suet.
Aug. 16
Alii dictum factumque
eius criminantur, quasi classibus tempestate perditis exclamaverit «etiam
invito Neptuno victoriam se adepturum», ac die circensium proximo
sollemni pompae simulacrum dei detraxerit.
When as a result of a
sea storm Octavian lost a great part of fleet, he shouted in anger that he
would win even against the will of Neptune, and then removed the statue of the
unfavourable god during the procession accompanying next games[132].
At first glance these behaviours indicate godlessness. Meanwhile, in fact they
are just a proof to what extent Sextus made Octavian’s life a misery.
Numerous victories in
sea battles and admiration of his commander’s genious made Sextus Pompey
feel pride to such an extent that he spoke about himself as about
Neptune’s son[133].
Octavian, who after all passed himself off – after his adoptive father
– as a descendant of Venus, accepted that game and treated Neptune as an
unfavourable god. So the war acquired a slightly Homeric flavour… Pliny
the Elder conveyed even the following anecdote: when Octavian was taking a walk
on a beach, a fish jumped from the sea and fell at his feet, soothsayers
interpreted this event as a favourable sign: those who rule the sea will fall
to Caesar’s feet[134].
Therefore Octavian took the liberty of profanation.
To sum up, it seems
that the fame of Sextus Pompey presented in the sources as pirate and degenerate,
to a great extent results from Octavian Augustus’ propaganda activities[135].
Sextus enjoyed huge popularity in Rome, he was the hope of those who believed
in the possibility to restore the republican system. That was why Octavian had
to discredit him in the eyes of his fellow citizens and legitimize his own
military actions against him. The label of a pirate allowed him to break the
peace agreement concluded according to legal regulations, without any
consequences resulting from the ius belli
and ius fetiale, since pirates
were not considered hostes legitimi.
Thus the history has
been written down only by the winner and the sources convey it only out of his
perspective. If Sextus Pompey had more effectively used his military advantage
or if he just had had more luck, he would have decided, which version of events
to convey to the posterity. If his propaganda abilities had equalled those of
Octavian, he would have certainly written in his Res gestae with pride and nonchalance: Italiam pacavi a latronibus, referring to his opponents to as
robbers using violence.
Whereas Velleius
Paterculus would have considered Octavian as quite unlike his father –
while Caesar drafted lex Iulia de vi,
his adopted son used violence for many times: eum non depuderet vim facere lege a patre suo rogata vetitam.
3. – Consequences of the piratical captivity
3.1. – Status of persons captured by pirates
In the first book of Politics Aristotle considered the
problem of slavery. He concluded that some people were slaves by nature,
whereas others were predestined to rule them:
Arist.
Polit. 1,1255a,1
o{ti me;n toivnun eijsi; fuvsei
tine;" oiJ me;n ejleuvqeroi oij de; douvloi, fanerovn, oi{" kai; sumfevrei to; douleuvein kai;
divkaiovn ejstin.
Aristotle quoted an common opinion stating that some people were free
by nature, while the others were slaves, whereby for those latter slavery was
both useful and just.
In the further part of disquisition the Stagirite quoted however an opposite
view, according to which some people became slaves on the basis of the law
stating that war prisoners should lose their freedom. This legal regulation
aroused doubts with some philosophers, as it sanctioned the use of force
allowing to enslave a man with violence. In addition, the cause of war may be
unjust and this could question the legitimacy of enslaving prisoners.
Aristotle’s
disquisition proves that – although doubts were raised as to this –
commonly accepted was the law, according to which capturing prisoners during a
war made them slaves. This principle belonged to the ius gentium norms, which was confirmed by
Ulpianus when he wrote that iure gentium servitus invasit[136].
In Roman law, only bellum
iustum, conducted against hostes legitimi, was considered war in the exact sense of the word. The fact
that pirates were not granted the status of hostes rei publicae is also related to the fact that persons
captured by them did not become slaves from the legal point of view.
Paulus stated directly
that a piratis aut latronibus capti liberi permanent[137].
This view was confirmed by Ulpianus: et ideo qui a latronibus captus est,
servus latronum non est[138].
However, maintaining freedom was only a legal state, not a fact. Those captured
by pirates were sold on slave markets of the whole Mediterranean world.
However, during the
period of archaic law the status libertatis of those captured by pirates was not decided yet. The treaties
concluded by Rome and Carthage may confirm that formally those prisoners became
slaves. This is due to the fact that according to those agreements certain
zones were established, in which citizens – not only soldiers, but, as it
seems, also pirates – were to restrain from robbery and kidnapping people[139].
For Rome these zones covered the republic’s territory and states united
with it in the form of foedera. According to the second treaty with
Carthage concluded in 348 BC, the persons captured on the territories of Latium
belonging to the society with which Rome concluded peace in the form of a
written treaty, were kept by the Carthaginians as a part of spoils, but they
could not bring them to Roman ports. If they did it, every Roman could demand
releasing the captured one by means of a manus iniectio[140].
It seems that it is not about commencing legis actio per manus iniectionem[141], as there is no basis for it, and apart
from that a party must have been a Roman citizen which was not the case. It
must have been a manus iniectio
without legal action, aiming at questioning the Carthaginian’s ownership.
This situation may be compared with the competence of the pater familias to execute a manus
iniectio with respect to a person subject to his power. In this case the
act of the manus iniectio would have
been of public-legal nature, with the Roman performing it representing state
interest.
The treaty clause in
question means that trading people captured during pirates’ robbery
assaults was not prohibited, as they became slaves. Welwei proves that the
reason for concluding agreements was avoidance of trading slaves on their
native areas: creation of a system, where a slave comes from far away and where
the alienation from the society to which he got, causes decrease in his morale
and acceptance of his fate[142].
However, this principle did not require treaty regulations: after all Romans
themselves sold insolvent debtors trans
Tiberim[143],
in order for them not to be slaves in their own land.
Whereas Plautus’
comedies may already indicate on the fact that – although those captured
by pirates in fact became slaves – according to law they were still free
people. Their chance was meeting relatives and proving their real status. In
the comedy titled Poenulus[144],
the procurer Lycus bought two
girls[145]
from a Sicilian pirate, who warned him that they came from a free Carthaginian
family[146].
As their father Hanno, surprisingly found them he sued the procurer stating: hasce
aio liberas ingenuasque esse filias ambas meas; eae sunt surruptae cum nutricae
parvolae[147].
Lycus did not deny this statement, agreeing with Hanno.
In the comedy titled Curculio[148] Phaedromus wanted to sue Therapontygos,
because the latter one consciously bought a freely born girl: Qui scis
mercari furtivas atque ingenuas virgines, ambula in ius[149].
The contents of the comedy shows
also that the slave sale contract may be attached a stipulation on
reimbursement of the price in case the freedom of the person sold was proven in
a court[150].
Analyzing
Plautus’ comedies one should always ask a question, whether their
contents are not just a copy of their Greek equivalents. In New Comedy there
appeared a theme of persons captured by pirates, and then found and released by
their relatives. The example may be the comedy Sikuovnioi by Menander in which Kichesias found his daughter Philoumene
captured at the age of four[151].
However, it seems that Plautus, after all writing for a Roman audience, would
not risk putting in his plays situations incompliant with Roman law which was
very well known by his spectators. He certainly tried to adjust the contents of
his comedies to Roman reality, in particular where legal aspects were in
question[152].
It seems that proving
the status of free-born person results in restoring it to all its rights, and
the earlier actual slavery resulted solely from impossibility to provide
evidence. Such state of affairs is already compliant with the views of the
classical period jurists.
Roman law gradually
evaluated in the direction of considering persons captured by pirates as free[153].
Initially it was expressed by the attempts to ensure safety for Roman citizens,
and then in specific regulations confirming the status of free persons.
From the fact that
pirates’ prisoners did not become slaves further conclusions may be
drawn. There is no doubt that from the legal point of view those persons were
not slaves also after having been sold, and the obstacle rendering it
impossible for them to use freedom was only the impossibility to provide
evidence.
Slaves were recruited
on the basis of the ius gentium only
from among war prisoners or inherited that status after their mothers[154].
D. 1,5,5,1 (Marcianus libro primo institutionum)
Servi autem in dominium nostrum
rediguntur aut iure civili aut gentium: iure civili, si quis se maior viginti
annis ad pretium participandum venire passus est: iure gentium servi nostri
sunt, qui ab hostibus capiuntur aut qui ex ancillis nostris nascuntur.
Marcianus[155] singled also iure civili slaves. According to the jurist, it was possible to become a slave iure civili if a person aged more than twenty
who consciously allowed his own sale, in order to get a part of the sum
obtained from it, so a swindler, who hoped for release after proving his status libertatis[156].
Also Marcianus’ statement qui
ab hostibus capiuntur requires a commentary. Here the jurist meant not only
prisoners taken during war, but also those imprisoned during peace. It is worth
to compare his opinion with Pomponius’ commentary on the work of Quintus
Mucius Scaevolia concerning postliminium.
D. 49,15,5,2 (Pomponius libro trigensimo septimo ad
Quintum Mucium)[157]
In pace quoque postliminium datum
est: nam si cum gente aliqua neque amicitiam neque hospitium neque foedus
amicitiae causa factum habemus, hi hostes quidem non sunt, quod autem ex nostro
ad eos pervenit, illorum fit, et liber homo noster ab eis captus servus fit et
eorum: idemque est, si ab illis ad nos aliquid perveniat. hoc quoque igitur
casu postliminium datum est.
During peace the
persons captured either by people or by a society, which was not at war with
Rome, but did not either enter into alliance or conclude a peace treaty with
Rome, became slaves. The case was similar in an opposite situation – Rome
could acquire slaves also during peace from among the citizens of the states
with which it had no binding agreements[158].
Freedom was maintained only – as it has been proven above – by the
persons captured by bandits or pirates.
It should be assumed
that the bondage types mentioned, i.e. iuris
gentium and iuris civilis were
included in the category of iusta
servitus[159]. Gaius believed that only manumission
from such kind of bondage caused definite legal results: Ingenui sunt, qui liberi nati sunt; libertini qui ex iusta servitute
manumissi sunt[160].
According to the jurist, only manumission from just slavery allowed to acquire
the status of freedman, depending on the manner of liberation: a Roman citizen,
a Junian Latin or a peregrinus dediticius[161]. Drawing a contario conclusion, a person with respect to whom one performed manumissio, and who was not iustus servus, did not acquire the
status of a freedman. Since he has never been a slave, he all the time
maintained his former social affiliation and citizenship. Accordingly, if one
proved formally to a freedman that he had been captured by pirates – for
example in his childhood – according to all rules he would lose Roman
citizenship, if he was a peregrinus
by descent. The sources do not mention such case. It should be supposed that
few pirates’ prisoners knew that they were free people, most of them
considered themselves slaves and accepted their fate[162].
Vicissitudes of those captured were very tangled and proving anything could
probably be assured only by deus ex
machina. Unless of course the matter was set on a theatre scene…
3.2. – Pirate prisoners
and the ius
postliminii
The jurists of the
classical period unanimously expressed their view that those captured by
pirates remained free. Such a solution arouses many questions. The issue of
applying ius postliminii with
respect to those persons and the problem of the validity of the testaments
prepared by them should be taken into consideration.
Postliminium was an
institution applied towards those coming back from imprisonment with the enemy,
i.e. towards hostes legitimi[163].
Since the capti a piratis experienced only actual and not legal slavery,
the application of the right of return with respect to them would be
unnecessary. The reason for that was that the persons captured by pirates
maintained their previous status.
D. 49,15,24 (Ulpianus libro primo institutionum)
et ideo qui a latronibus captus est,
servus latronum non est nec postliminium illi necessarium est: ab hostibus
autem captus, ut puta a Germanis et Parthis et servus est hostium et
postliminio statum pristinum recuperat.
According to Ulpianus,
postliminium was not necessary with respect to a
person captured by bandits. This proves that the prisoner maintained the
property of his estate and patria potestas during the entire time of captivity. Unlike the situation of those who
took advantage of postliminium, his marriage was not subject to
termination, he also did not lose possessio.
A further consequence is the possibility to make wills during the whole
period of imprisonment. Marcianus stated directly: Qui a latronibus capti
sunt, cum liberi manent, possunt facere testamentum[164].
In case of death of the person
captured, it was not necessary to apply the fictio legis Corneliae.
The testament remained valid.
Also the case where the captured person dis not know in whose hands he was,
seems interesting. This issue was dealt with by Ulpianus.
D.
32,1pr (Ulpianus libro primo
fideicommissorum)
Si incertus quis sit
an a latrunculis obsessus, testamentum facere non potest. sed et si sui iuris
sit ignarus putetque se per errorem, quia a latronibus captus est, servum esse
velut hostium, vel legatus qui nihil se a captivo differre putat, non posse
fideicommittere certum est, quia nec testari potest qui, an liceat sibi
testari, dubitat.
According to the jurist, the person who dis not know, if he has been
captured by latrunculi, so also by pirates, or by the enemies, could not
make a will. This was due to uncertainty as to one’s own status
libertatis. Moreover, also a prisoner falsely believing that the
imprisonment by latrones resulted in
slavery (error iuris[165]) was not entitled to testamenti
factio activa. Ulpianus emphasized
that such person could not even leave a fideicommissum, because it was
impossible to make a will for someone who was not sure if he was entitled to do
it.
3.3. – The rights of the pirate captives
The persons staying in
bondage with enemies or pirates were treated as absentes which justified their absence during trials.
D.
4,6,9 (Callistratus libro secundo edicti
monitorii[166])
Succurritur etiam ei,
qui in vinculis fuisset. quod non solum ad eum pertinet, qui publica custodia
coercetur, sed ad eum quoque, qui a latronibus aut praedonibus vel potentiore
vi oppressus vinculis coercebatur. vinculorum autem appellatio latius accipitur:
nam etiam inclusos veluti lautumiis vinctorum numero haberi placet, quia nihil
intersit, parietibus an compedibus teneatur. custodiam autem solam publicam
accipi Labeo putat.
Roman law provided for
an absolute obligation to appear in iure in case of summons[167].
Only those for whom appearance was impossible due to public obligations, and
also those imprisoned both in public prisons, as well as by pirates and
enemies, regardless if their imprisonment consisted in being chained or only in
keeping in a closed room, were exempted. However, according to Labeo one should
justify only the absence of those persons who were kept publica custodia.
This solution does not seem right, because the prisoners of pirates or enemies were
not to blame for their absence, resulting as a matter of fact from force
majeure. The person captured by pirates was entitled to a restitutio in
integrum[168],
if a procurator had not acted on their behalf during their absence[169].
Irrespective of the fact if somebody got in the hands of enemies or
pirates he did not suffer legal consequences for the acts to which he was
forced during legal or only actual captivity. One of such cases was dealt with
by Ulpianus in his commentary to the praetorian edict, discussing the issues of
the representation in lawsuit.
D.
3,1,1,6 (Ulpianus libro sexto ad edictum)
Removet autem a
postulando pro aliis et eum, qui corpore suo muliebria passus est. si quis
tamen vi praedonum vel hostium stupratus est, non debet notari, ut et Pomponius
ait.
A pederast[170]
could not appear before the magistrate executing jurisdiction[171]
on someone else’s behalf, unless he was prostituted by the enemies or praedones which in this case should be
understood both as pirates and land robbers. Vis praedonum vel hostium is one of the examples of events
considered by Roman jurists as force majeure[172].
As it cannot be resisted, none can suffer from its negative results.
One of the controversiae of Seneca the Rhetorician
also refers to the issue of prostituting pirates’ prisoners. Its subject
is the requirement of priestesses’ chastity.
Sen.
Contr. 1,2:
Quaedam virgo a
piratis capta venit; empta a lenone et prostituta est. venientes ad se exorabat
stipem. militem, qui ad se venerat, cum exorare non posset, colluctantem et vim
inferentem occidit. accusata et absoluta remissa ad suos est; petit
sacerdotium.
A virgo captured by pirates was sold to a procurer who made her a
prostitute. The girl asked the men visiting her to pay, despite the fact that
she failed to provide the service. When one soldier refused and tried to use
force against her, she killed him during scuffle. She was accused of murder and
acquitted, then sent home where she began to apply for priestly position.
The interpretation of
the subject itself of this controversy causes a lot of difficulties. The doubts
are aroused by the term virgo, and
also by the expression petit sacerdotium.
The title - sacerdos casta e castis pura
e puris sit – suggests associations with the requirements for the
candidates for Vestal Virgins[173].
Both, they and their parents had to have unblemished reputation. So it may be
supposed that the captured virgo[174]
was not simply a virgin, but a Vestal Virgin[175].
Girls aged from 6 to
10 were appointed to serve in the temple of Vesta, so the expression petit sacerdotium may not refer to
candidating to the position in the College of Vestal Virgins. It seems that
pirates had captured the Vestal Virgin, and – because there had to be a
definite number of priestesses in the temple –a successor on her place
was appointed. The captured priestess – after having returned – had
to apply for admittance to temple again, especially because her chastity
aroused serious doubts.
In case of breaking
the vows of chastity a Vestal Virgin was threatened with being buried alive. In
the case discussed however, the accusation of incestum was not considered exactly on account of compulsion.
Whereas the opinions
of orators, quoted by Seneca are unanimous in the issue of absolute
unacceptability of appointing this woman as a Vestal Virgin. It was due to the
fact that the requirement of chastity exceeded literally understood virginity.
Her presence in a brothel, staying alone with men, being assessed by a procurer,
and then being trained for the job constituted an obstacle itself on the way to
priesthood. The reputation of a woman and her parents had to be unblemished, to
avoid an offence of gods.
None of the
rhetoricians denied the possibility for the girl to enter the state of
matrimony: 'nihil' inquit 'passa sum':
hoc satis est nupturae, sacerdoti parum[176]. Virginity constituted almost a part of
dowry, and the experience during bondage and determination to maintain chastity
proved modesty. However, it is not known, if this would be enough for a future
husband. Regarding this case one cannot help, but get the impression that
although for the acts to which one was forced by pirates, one did not suffered
legal consequences or penal-sacred sanctions, a woman who was a prisoner of
buccaneers could not count on respect. She was considered tarnished and the
sheer conjecture as to what she could have experienced rendered it impossible
for her to regain the social status from before kidnapping.
3.4. – Situation of the redemptus a piratis
The issue of repurchasing a prisoner from pirates’ hands: redemptio a pirates should also be
considered. The literary texts show that moral and customarily sanctioned
obligation to pay ransom was rested with the relatives of captured person. This
may be certified by the works of Seneca the Rhetorician in which the subject of
kidnapping by pirates appeared quite often[177].
Relatives, most commonly the fathers of brothers of those kidnapped, had to pay
ransom[178]
which often was connected with the necessity to go to lion’s den - ire ad redemptionem. The text proves
that this was not safe: the repurchasing person risked being taken prisoner and
sharing the fate of the one whom he wanted to repurchase[179].
As a matter of fact he was to negotiate with bandits not bound by the norms of
the ius gentium.
Failure to repurchase a close relative was however treated as negligence of
officium, unless it resulted from
lacking money. The prisoners could assure themselves a better treatment
informing the pirates that they had relatives, as this gave them hope for
ransom[180].
Lack of ransom could turn out to have tragic consequences for a prisoner. The
pirates usually killed such captives which was confirmed by many crosses placed
by them: cruces eorum, qui non redimuntur[181].
If somebody did not have relatives or they were not able to collect a
sufficient sum of money, it happened that ransom was paid by someone else. Such
behaviour was considered very virtuous.
Cic.
De off. 2,55:
Omnino duo sunt genera
largorum, quorum alteri prodigi, alteri liberales; prodigi, qui epulis et
viscerationibus et gladiatorum muneribus ludorum venationumque apparatu
pecunias profundunt in eas res, quarum memoriam aut brevem aut nullam omnino
sint relicturi, liberales autem, qui suis facultatibus aut captos a praedonibus
redimunt, aut aes alienum suscipiunt amicorum aut in filiarum collocatione
adiuvant aut opitulantur vel in re quaerenda vel augenda.
Cicero differentiated between
two categories of generous people: wasters and nobles[182].
The first ones spent their money on ephemeral entertainment, whereas the others
repaid the debts of their friends, dowered their daughters or exactly
repurchased them from bandits’ hands[183].
Prodigy was commonly condemned by the Romans, it could lead to limitation of
the capacity to legal transactions, whereas generosity was appreciated[184].
During the Republican
period, the prisoners were usually repurchased from the hands of pirates by the
family, sometimes with the participation of a generous benefactor. The case was
similar with prisoners of war, however with the exception that in rare cases
the ransom for them was paid by the state. Only during the imperial rule there
appeared a category of persons whose situation slightly differed from the fate
of slaves: redempti ab hostibus[185]. Because a common practice was
repurchasing prisoners by strangers (redemptio
iure commercii), with whom those repurchased stayed until they returned the
amount paid[186].
During that period it was impossible to inherit after them, they could not
enlist in the army, and the redemptor could
sell them, reserving only their status. The sources prove that redemption in no way influenced the
possibility to use the ius postliminii,
but without doubt the repurchased one was very limited in its rights. The
institution of redemptio ab hostibus raises
quite serious doubts in the doctrine. However, this work should in particular
answer the question, whether or not the situation of a repurchased
pirates’ captive was the same as that of a prisoner of war.
The persons captured
by pirates did not experience capitis
deminutio and did not need to use the ius
postliminii, so during the whole period of imprisonment, and also after repurchase
they enjoyed freedom and citizenship (even, if that was only a theory). So it
is difficult to suppose that the redemptor
had such an authority over a person repurchased, as over a slave. However,
on the other side, redemptio ab hostibus did
not constitute an obstacle on the way to use ius postliminii, which means that the one repurchased from
enemies’ hands did also enjoy a status of a free man and citizen. He only
remained dependent on his redemptor. It
seems that there is no basis to suppose that repurchase from pirates’
hands did not result in a legal knot similar to that in case of repurchase from
bondage with enemies[187].