Greece, Rome, and the Bill of Rights (28 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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page_141<br/>
Page 141
violence rose rather late in the republican period. Cicero mentions a law brought by Q. Catulus,
quam ... Q. Catulus ... tulit
,

40
which has been identified as the
Lex Lutatia
, a consular law passed in 78
B.C.
and therefore the earliest legislation against public violence in Rome.
41
An-other important statute was the
Lex Plautia
, datable perhaps to 70,
42
under which Catiline was prosecuted by L. Aemilius Paulus. Publius Cornelius Sulla
43
was indicted under this law in 62, and it was also within its provisions that Vettius informed on Caesar.
44
Pompey passed a related law in 52 to deal with the murder of Clodius on the Appian Way and with the riots that ensued. The
Lex Lutatia
set up a perpetual investigating board
(quaestio perpetua)
, which could be used whenever there was sedition. The
Lex Plautia
increased the occasions in which the courts could function in matters of sedition.
45

It is difficult to identify these early laws in clear outline, however, because all were subsumed under a Julian law on violence, the
Lex Julia de vi
, for which alone we have evidence in the
Digest
. In his study of the
Lex Julia
, Duncan Cloud concludes that the Julian laws on violence were twofold, one passed by Caesar and the other by Augustus, probably between 19 and 16
B.C.
, but that the material in the
Digest
(48.6 and 7) styled
ad legem Iuliam de vi publica
derives from the same Augustan
vis
statute as the
de vi privata
.
46
There was thus a unitary Augustan measure on violence.
47
Cloud suggests that it is possible that Augustus introduced the phrase
vis publica
to designate the "one important newcomer" under his law against violence, namely "state" or "institutional'' violence.
48
Among its provisions, of which there were at least eighty-eight, the
Lex Julia
forbade carrying an offensive weapon in certain public places (
in publico
), blockading the senate, making violent physical attacks on magistrates, occupying temples and city gates with armed men, and gathering gladiators, citizens, and slaves for riotous purposes, murder, or arson.
49
Many but not all of these reiterated provisions of the earlier
Lex Plautia
,
50
which prohibited the carrying of weapons with the intent to commit murder or theft.

 

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Roman tradition had always encouraged violence, which the Roman constitution was unable to control. By the time the Senate passed legislation to control the bearing of arms for violent purposes in the public realm, it was too late. Armsbearing citizens would prove fatal to the constitution.
Quartering Soldiers
The Third Amendment, which, like the Second, arose from experience with the British during the Revolutionary War, protects property rights by ensuring freedom from involuntary billeting of soldiers on private property during peacetime or even during times of war unless by due process. While this amendment was shaped by recent American history, the more general problem it addresses was not unfamiliar to the ancient Romans and in fact formed one Roman strategy for dealing with the problem of administration of its far-flung empire.
This had to do with the quartering of Roman soldiers in cities around the empire, and whether such quartering was to be assumed as a right of the Roman armies or withheld as a sign of the conqueror's favor. For example, the city of Termessus in Asia Minor sided with Sulla and Rome during the war with Mithridates, suffering dire consequences as a result. When peace was restored, the Romans promulgated the
Lex Antonia de Termessibus Maioribus
in about 71
B.C.
, which restored to the inhabitants of Termessus the ownership of their property and included a provision that prohibited the billeting of Roman soldiers in private quarters in the town: "No magistrate or promagistrate or legate or any other person shall introduce soldiers into the town or land of the people of Greater Termessus in Pisidia for the object of winter billeting, or shall allow another so to introduce them, or shall cause soldiers to be billeted in the said town, unless the Senate shall have expressly declared that soldiers be brought into winter quarters with the people of Greater Termessus in Pisidia."

51

In contrast, Sulla made a point of billeting his troops in

 

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the Asian cities that had supported the uprising led by Mithridates. In one case an actors' guild appealed to him for exemption from this and other penalties. As dictator in 81
B.C.
, Sulla, perhaps like other politicians solicitous of actors, granted them these immunities and ordered a huge stele erected to announce his benevolence. Among its provisions are these: "You shall be exempt from all public and military service, you shall not pay any tax or contribution, you shall not be troubled by anyone for provisions or billets, and you shall not be compelled to receive any lodger in your homes against your will."

52

Later, even greater favor was bestowed upon Aphrodisias, a city in Caria, modern western Turkey, which had early emphasized its connections with Venus/Aphrodite, mother of Aeneas and matriarch of the Julian clan, to establish its deference to Julius Caesar. Called by Octavian "the one city from all Asia I have selected to be my own," a
senatus consultum de Aphrodisiensibus
was passed in 39
B.C.
to restore Aphrodisias as a free city or
civitas libera
. This measure was supported by Octavian because of the friendliness of the city to his cause in the aftermath of Caesar's assassination. The
senatus consultum de Aphrodisiensibus
, inscribed on a wall of the theater building, granted the city freedom from taxation, preferential treatment of embassies to Rome, non-interference with its magistrates, and freedom from the billeting of Roman soldiers in the city.
53
When Cicero spoke in favor of the Manilian Law, the abuse of billeting was one of his themes: "Who then does not know how great is the ruin which, owing to this avarice on the part of our generals, is caused by our armies in every place to which they go? ... Which do you think have been more frequently destroyed during late yearsthe cities of your enemies by your soldiers' arms or the territories of your friends by their winter quarters?" Cicero then contrasts the avaricious generals with Pompey, who is superior to other generals in part because he does not allow the communities where his soldiers are billeted to incur any costs on their account: "And further, the way in which our soldiers behave in winter quarters is shown

 

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by the tidings and the letters which reach us daily: so far from any man being compelled to incur expense on a soldier's account, no man is allowed to do so even if he would. For our forefathers desired that the roofs of their allies and friends should be a shelter against the winter, not a refuge for avarice."

54

Later in a letter to Atticus, Cicero had occasion to refer to his own restraint from billeting when he served as governor of Cilicia in 5150
B.C.
Though not thrilled with being posted to such a backwater, he determined to govern the province according to the high principles he had established in his
Republic
.
55
In a letter to Atticus of February 13, 50
B.C.
, he writes:
During the six months of my administration there have been no requisitions and not a single case of billeting. Before my time this season had been devoted each year to the pursuit of gain. The richer towns used to pay large sums to escape from having soldiers billeted on them for the winter. The people of Cyprus, for example, used to pay 200 Attic talents, but under my administration they will appropriate, in literal truth, not a penny. I will accept no honors except speechifying in return for these kindnesses which have so amazed people.
56
In 42
B.C.
the Munatian-Aemilian law was passed, giving the triumvirs power to grant dual Roman citizenship and other privileges to provincials who helped them in their war against Caesar's assassins. This was a great variance from the fundamental Roman law that Roman citizens could not hold any other citizenship, but it demonstrates the Roman inclination to follow Hellenistic institutions where possible. In an edict of 41
B.C.
, Octavian granted a certain Seleucus of the Asian city of Rhosus, in return for his "devotion and fidelity to the Republic and ... to our safety," Roman citizenship and various privileges thereof, including exemption from taxation and from billeting soldiers.
57
That the exemption from billeting was one means of exerting or withholding imperial favor is evident also in

 

page_145<br/>
Page 145
an edict of Octavian on the privileges of veterans, dated to 31
B.C.
:
Likewise, just as I desired the veterans to be privileged in the said respects, I grant permission that they possess, use, and enjoy also whatever priesthoods, offices, prerogatives, privileges, and emoluments they possessed. Neither the other magistrates nor a legate nor a procurator nor a farmer of the tribute shall be in their homes for the purpose of lodging or wintering, nor shall anyone be conducted to winter quarters therein

58
against their will.
59

In summary, the origins of both the Greek and Roman cultures were essentially military. Bearing arms was a way of life for the aristocratic males who eventually came to constitute the citizen classes. Both classical Athens and republican Rome attempted to regulate armsbearing, but, especially in the case of Rome, violence was so ingrained in the civic ethos that legislative countermeasures came too late to prevent the destruction of the republican constitution.
For a militaristic society, especially one that administered an empire stretching from Scotland to Iraq, the quartering of soldiers was a necessary corollary to imperialism. For the hapless peoples subject to the power of Rome, relief from the quartering of soldiers was occasionally granted as a favor and sign of special status conferred from above. But it was only that, a favor conferred, not a right assured. The American framers insisted that freedom from such measures be included among the rights of all free citizens.

 

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