Chapter 3 The Sea Gives, and the Sea Takes: On Ownership

In: Shipwrecks, Legal Landscapes and Mediterranean Paradigms
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Emilia Mataix Ferrándiz
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The concept of ownership plays an important role in all periods of Roman history, and even if the Romans did not develop a dogmatic analysis of the right to property, they identified different categories in order to define what could and could not be owned.1 However, the sea appears to have been a problematic element in legal articulations of property, since no one could possess it or exclude others from it.2 This chapter will mostly focus on how humans try to claim and control elements of the world around them, in particular when their lives have been affected by a sea or river, either because they had suffered a shipwreck, or even as a result of mere interaction with these spaces. As it cannot be otherwise, the chapter also considers the human interactions and behaviours that take place in these contexts, and how these affect their own or other people’s relationships with each other and their environment. The study of these issues will open the discourse to other phenomena and unravel a wide array of questions, because the multiple categories attributed to dominion and law lie at the heart of the vast majority of social relations. In addition, legal categories of ownership connect land and sea and have an effect on how individuals conceive of themselves in a social context.3

3.1 The Sea and Its Power

There is an extensive bibliography on Roman sea power, in which scholars describe how its military power, deployed on or from the sea was a key component of its expansion and growth.4 In a simple sense, sea power has been exercised for as long as human beings have used ships for military purposes.5 Nonetheless, the term ‘sea power’ also refers to the power exerted by a state through its capacity to use the sea for both military and civilian purposes (e.g. fishing, exploitation of resources).6 In that sense, the definition and demarcation of borders are as fundamental to establishing private and collective rights of ownership as they are for political allegiance.7 However, what does it mean to hold property at sea?

In the classical world, Roman jurists divided the universe into things over which individual human beings could have patrimony and things that were seen to lie outside this system (res extra commercium).8 While land could be fenced in and enclosed, and so was fair game for conquest and control, flowing water or the sea lay outside the threshold of individual patrimony, and were seen as belonging to humanity at large.9 The latter belief connects with the principle of the freedom of the seas, which is one of the milestones of international maritime law, but which was not conceptualised in this way in antiquity.10 Therefore, no individual could lay claim to or impose any right upon the sea itself. However, there are some nuances to this assertion derived from events or activities related to the seashore, or to some fishing rights, as I will explain in the last section of this chapter. Ulpian, in his sixth book of opinions says:

D.8.4.13pr. (Ulpian. 6 Opin.) Venditor fundi Geroniani fundo Botriano, quem retinebat, legem dederat, ne contra eum piscatio thynnaria exerceatur. Quamvis mari, quod natura omnibus patet, servitus imponi privata lege non potest, quia tamen bona fides contractus legem servari venditionis exposcit, personae possidentium aut in ius eorum succedentium per stipulationis vel venditionis legem obligantur. (The seller of the estate Geronianus had imposed a clause on the estate Botrianus, which he was keeping, so that tuna fishing could not be practised against it. Although it is not possible to place a servitude by private contract on the sea, which by its nature is accessible to everyone, nonetheless because the good faith of the contract demands that the conditions of the sale should be observed, the persons in possession or those who succeed to their rights are committed by this clause of the stipulation or the sale.).

Trans. MARZANO 2013, 246

In this fragment Ulpian deals with the sale of a coastal farm that includes a ban on fishing for tuna that affects the buyer. Leaving aside the issues concerning tuna fishing, an activity that can take place on the shore as well as at sea,11 the key point here is that it is impossible to impose servitude on the sea, since it is conceived of as something that belongs to everyone.12 Several texts of jurists from different periods discuss this phenomenon, relating it to different legal institutions, but in sum sharing the same conception as for the sea. For example, Pomponius, in his twenty-sixth book on the instructions of the Republican jurist Quintus Mucius,13 wrote:

D.7.4.23. (Pompon. 26 Quint. Muc.) Si ager, cuius usus fructus noster sit, flumine vel mari inundatus fuerit, amittitur usus fructus, cum etiam ipsa proprietas eo casu amittatur: ac ne piscando quidem retinere poterimus usum fructum. Sed quemadmodum, si eodem impetu discesserit aqua, quo venit, restituitur proprietas, ita et usum fructum restituendum dicendum est. (If a field in which we have a usufruct is flooded by a river or by the sea, the usufruct is lost since even the bare ownership is lost in such a case; indeed, not even by fishing can we preserve the usufruct. However, just as only as the bare ownership is revived if the water recedes on the same flood tide with which it came, so too it must be held that the usufruct is restored).

Therefore, the sea was not only a boundary between legal realms, but also a defining feature of ownership. As in the case of a shipwreck, the sea could grant an individual ownership, but it could equally take it away.14 By ‘take it away’, I mean that whatever is overrun by water becomes part of the sea or river and is therefore included in the property of all humankind. In the fragment quoted above, the right of usufruct disappears when the land upon which it is constituted is flooded by the sea, but that right is reconstituted once the sea has receded. Later, Paul, in his fifteenth book on civil law, provides a list of ways in which one can lose possession of a place, such as if it becomes a religious site, or in the following case:

D.41.2.30.3 (Paul. 15 ad Sab.) Item quod mari aut flumine occupatum sit, possidere nos desinimus, aut si is qui possidet in alterius potestatem pervenit. (Likewise, we cease to possess what is occupied by the sea or a river or if the possessor should pass into the power of another).

A similar approach to that in the above text can be read in an earlier fragment from Pomponius, in which the author indicates that a building constructed in the sea can be private, but that the power of the sea can take property away from the owner and make it part of the public realm.15 But how can one build something in the sea, and make it private? Many texts from the jurists mention the construction of piles (made of strong timber or Roman water-hardening concrete, one supposes) in the sea as a foundation, which would enable one to build something that could be deemed private.16 The logic behind that is that someone is using a space that has been built ex novo, and indeed, Pomponius, in his thirty-fourth book on civil law, established a parallel between these piles and an island that arises from the sea:

D.41.1.30.4 (Pompon. 34 ad Sab.) Si pilas in mare iactaverim et supra eas inaedificaverim, continuo aedificium meum fit. Item si insulam in mari aedificaverim, continuo mea fit, quoniam id, quod nullius sit, occupantis fit. (If I put piers into the sea and build upon them, the building is immediately mine. Equally, if I build on an island arising in the sea, it is mine too; for what belongs to no one is open to the first taker).

The example of the island arising from a sea or river is a classical juristic case for dealing with occupatio of res nullius, in the case of the sea, or with alluvio, in the case of the river.17 The difference lies in the fact that it was quite uncommon to have an island emerge from the sea,18 while it was common, thanks to the imperceptible accretion or deposit of soil in a riverbed, to have an island appear in a river. Would this be an exception to the general rule that the sea belongs to everyone? I think that the logic behind this reasoning is that an island that appears in the sea, as this was a shared space for all humankind, belongs to the category of res nullius, things that do not belong to anyone, and therefore the first claimant can take possession of them.19 The situation is different when an island appears in a river, in which case the rule was that the riparian owners up to the middle line of the river owned the island, unless it lay wholly to one side of a riverbank, in which case it acceded to that bank.20 In the case of the sea, there is always that contrast between what is the common property and what could be owned because piles were built and something was constructed on top of them. Indeed, even if one could build piles in the sea, it was still necessary to bear in mind that the seashores were also the property of the Roman people.21

To sum up, the sea was a realm beyond control, which was a fact that could also interfere with one’s ownership as a legal actor. In addition, while there was the possibility of establishing some private rights on a public seashore or at sea, these could always be disturbed by the power of the sea, or because they interfered with a public realm. Finally, the texts included in this section reflect upon civil law—that is, the law of the Romans—but the position of foreigners must also be borne in mind. In the words of Gaius, ‘among non-citizens (foreigners or peregrini) there is only one type of ownership: a man is either an owner or is not considered an owner’,22 which translates into the fact that these subjects could benefit from possession and usufruct and would also be affected by the power of the sea in the same way as Roman citizens were.23

3.2 When Humans Mediate in the Ownership of Things

The previous sections have dealt with the power of the sea in granting and depriving rights and have emphasised that not even the sovereignty of the Roman order could curtail that dominance. In this section I will focus on shipwrecks, and in what way these events affected ownership. On the one hand, there is the view that whatever is overturned or sinks into the sea is lost, and becomes part of the sea itself; but what if the objects wash up on land, carried there by the waves? What happens if humans interfere to cause these events and thus take ownership of the cargo of the ship? Does the consideration of the original owner regarding their goods matter here?

Even if the alterity of the sea identified it as a realm beyond human sovereignty, that Roman legal considerations applied to ownership of the savaged goods contributed to framing the maritime cultural landscape of the Roman world as a space where the owners were protected when faced with the hazards of navigation and unlawful human intervention derived from these events. In addition, the legal classifications given in the following sections to describe the different situations stemming from a wreck highlight how these categories are entangled, and how it is the small nuances that would lead the decisions made in a given de facto situation, in one direction or the other. One element that I would like to highlight from many of the fragments cited in these four sections is that all the different legal classifications regarding the situations mentioned by the jurists apply either when an item touches the land or when it is taken from a ship. This might connect the events with spaces where the legal categories belonging to the law of the Romans had sovereignty (on land, on a vessel).

The latter makes one wonder whether objects floating in the water would have benefitted from these legal conceptions, and it does seem to have been the case, as the items rescued from a wreck could not be qualified as res nullius unless they had been abandoned, and were definitely not parallel with items washed up from the sea.24 It is obvious that a person who seized goods from the sea would later bring them onto the land, where they could then be judged according to Roman categories. Nevertheless, that the Roman civil law categories also applied to events that took place at sea (and not in a ship, but in the water itself) demonstrates how these concepts could transcend the dichotomy of the civilised land and the ‘unruly’ sea.

In addition, despite the (apparently) homogeneous opinion of jurisprudence concerning topics such as theft and abandonment of cargoes, or their loss, there were those who argued that a multiplicity of conflicting maritime customs survived into the Imperial age. The most significant example of this conflict between different maritime practices is precisely in the practice of wreckage and its related events.25 In this matter, three different customs could have coexisted in different places: the attribution of the wreck to the one who took possession of it; the seizure and sale of wrecked goods by state officials; and the return of the goods to the rightful owner.26

3.2.1 Derelictio vs. Deperditio

Ownership is the right to a thing, irrespective of whether the owner has any control or enjoyment of it. It implies the legal capacity to operate on something according to the owner’s pleasure and to exclude everybody else from doing so. Therefore, one essential element here is that of the owner’s jurisdiction over a thing, and what actions pertaining to that item would confer ownership to another person, or, on the contrary, qualify that subject as a thief. In the case of items that were abandoned with the intention of getting rid of them (derelictio), there was a debate among Roman jurists about whether these could be claimed by whomever took first possession of them (occupatio), considering that such items do not belong to anyone (res nullius).27 The situation varied when goods were considered lost by the owner, because in these cases the owners still considered them to be their own. Concerning the case of shipwreck, the first-century CE jurist Iavolenus wrote:

D.41.2.21.1 (Iavolen. 7 ex Cass.) Quod ex naufragio expulsum est, usucapi non potest, quoniam non est in derelicto, sed in deperdito. (Whatever is expelled from a wreck cannot be owned nor acquired with the passing of time, because it has not been abandoned but it has been lost).

This fragment belongs to a series of fifteen books in which the author epitomised the thoughts of the Republican jurist Cassius Longinus.28 In a different book from the series, the jurist reiterates this idea, indicating that whatever is salvaged from the sea does not belong to the salvor unless the original owner considers that thing to be lost.29 Moreover, when goods have been deposited on the coast because of a catastrophic situation such as a shipwreck, they should not be considered as abandoned but as lost, since they perished at sea.

Even if these books were written during the late first century CE,30 they reflect the thoughts of a late Republican-early Empire jurist, who was reflecting the views of his time. At that time, the edictum de naufragio was published and therefore there was the starting point of an interest in protecting the property of seafarers.31 Iavolenus belonged to the Sabinian school of legal thought, which influenced his views about the moment when a thing could be considered abandoned.32 Sabinus and Cassius held that an object immediately ceased to be attached to someone from the moment that object was abandoned,33 whereas, in the view of Proculus, it continued to be theirs until it was taken into possession by someone else.34 The Sabinian view is probably older, and seems to be reflected in some rhetorical sources, which indicate that a ship or cargo that is abandoned is missing; these sources refer to an immediate state of loss.35 There are two other sources belonging to the Republican period, one being a fragment from the Rhetorica ad Herennium,36 and the other from Cicero’s De inventione,37 which refer to the same type of case. Essentially, the texts indicate that whoever abandons a ship during a storm, shall lose everything; the ship and the cargo shall belong to those who have remained on the ship.

One fragment from Petronius’ Satyricon described this sort of event,38 and it is also mentioned in rhetorical treatises from the Imperial period.39 However, the rhetorical treaty by Marius Victorinus (fourth century CE) indicates that at that time, the abandonment of the floating cargo due to a shipwreck no longer resulted in loss of property. The application of the old custom should therefore be considered now as a manifestation of piracy and condemned as such.40 The latter can point to an evolution of the perception of derelictio, which changed over time, but it is objectively difficult to assess the reliability and traceability of these fragments, since they belong to literary works or rhetorical treatises and, in that sense, could be distorted, especially if one looks at the advice from the Sabinian jurists.41

In contrast, the Digest texts point out that the owner would not lose ownership of goods lost due to a wreck, unless the owner had considered these goods to be abandoned. Goods lost at sea were items separated from their natural destiny and were thus not susceptible to acquisition by natural ownership (occupatio).42 However, these could perhaps be salvaged from the bottom of the sea. In that sense, we know about the existence of paid divers (urinatores) who were in charge of recovering lost cargoes.43 These are attested in Latin inscriptions associated with the ports of Rome, where they seem to be organised in guilds (corpora), either by themselves or with fishermen.44 Their intervention is visible in some wrecks,45 and it is clear that their activity influenced legal issues concerning the consideration of cargoes as lost or abandoned.46 I think that their activities must have been somewhat limited in terms of where they could act and in which contexts (not on the high seas, obviously).47 Therefore, one very possible reaction from someone who had suffered a wreck would have been to believe that their goods were lost, unless they were wrecked near a coast. If we follow the theory that beaching was a common occurrence for Roman merchant ships involved in coastal trade, and we bear in mind the dangers involved in this practice, it is not difficult to imagine that many ships were wrecked near to the coast, and that their cargoes would have arrived on land after being washed up.48 The situation looks different when we think about rivers, whose shallow depth allowed the goods to be recovered more easily.49

Thus, we can think of different situations whose interpretation would traditionally be centred on identifying the intention to abandon the object (animus dereliquendi) as an essential element of derelictio, the lack of which would have prevented jurists from recognising the throwing of goods into the sea or the forced abandonment of a ship as a true derelictio.50 Therefore, the problem lay in concretely ascertaining whether the goods belong to someone, and when someone was interested in establishing ownership of the goods, they would need to ascertain the situation, assume the burden of proof, and determine whether the goods could be owned through continuous possession in good faith (usucapio). In the case that none of these situations was possible, it would have been possible to propose an actio for theft, or theft performed with violence (actio furti, actio vi bonorum raptorum, actio de naufragio).51

Even if there is a certain consensus on these matters in the Digest, the elements of material abandonment and the intention of no longer having the thing as one’s own, are not phrased by Roman jurists in the same exact terms. Jurists focused their attention on the question of whether something recovered from the sea or washed up on the shore could be considered as definitively lost by the owner.52 In that regard, it is important to consider that the act of casting cargo overboard was not usually carried out by the owner but by the shipmaster or their crew, and therefore it was assumed that this could not be conceived of as abandonment.53

3.2.2 Animal Likeness: Ferarum Bestiarum and Their Casuistry

Although the previous section analysed relevant casuistic solutions adopted by Roman jurists regarding items lost from a wreck, there are some texts not mentioned previously that could offer a slightly different perspective on the problem of ownership of the res ex naufragio. Some of the Digest’s texts divagate and establish analogies between cases concerning occupatio of animals and things lost at sea, and, therefore, this short section will be devoted to analysing these in order to gain a deeper understanding of the issues related to things lost from a wreck. In that regard, Roman jurists begin by differentiating animals into two kinds:54 wild (ferae) or domesticated. Wild animals are those that do not belong to anyone (res nullius) and can be acquired by anyone by occupatio.55 However, wild animals can be tamed, meaning that they would be under the power of man, although not in a constant way,56 since they sometimes escape, but they retain the instinct to return (animus or consuetudo revertendi).57 On the other hand, domestic animals are considered the property of their owners, even when these are not at hand, as long as they could be retrieved, and anyone taking them would be considered a thief.58

Therefore, the discussion here focused on when one can be considered to have lost ownership of one’s own animals, such that these can be appropriated by someone else, or when one can be considered to have ownership over a wild animal. From these angles, it might seem that there are some clear similarities with things lost from a wreck, since one of the key questions here is when these animals become res nullius and therefore susceptible to acquisition by occupatio. In that sense, a certain excerpt from the commentary of Ulpian’s ad edictum is relevant: the Severan jurist refers to a case analysed by Pomponius in which somebody’s pigs were snatched by wolves, but these were successively saved by the courageous intervention of a neighbour, who pursued the predators with his hounds. The excerpt is quite long, but the important part reads as follows:

D.41.1.44 (Ulpian. 19 ad Ed.) (…) Si igitur desinit, si fuerit ore bestiae liberatum, occupantis erit, quemadmodum piscis vel aper vel avis, qui potestatem nostram evasit, si ab alio capiatur, ipsius fit. Sed putat potius nostrum manere tamdiu, quamdiu reciperari possit: licet in avibus et piscibus et feris verum sit quod scribit. Idem ait, etsi naufragio quid amissum sit, non statim nostrum esse desinere: denique quadruplo teneri eum qui rapuit. Et sane melius est dicere et quod a lupo eripitur, nostrum manere, quamdiu recipi possit id quod ereptum est. Si igitur manet, ego arbitror etiam furti competere actionem: licet enim non animo furandi fuerit colonus persecutus, quamvis et hoc animo potuerit esse, sed et si non hoc animo persecutus sit, tamen cum reposcenti non reddit, supprimere et intercipere videtur. Quare et furti et ad exhibendum teneri eum arbitror et vindicari exhibitos ab eo porcos posse. ([…] If, then, ownership is lost in this way, the thing will belong to the first taker on being freed from the beast’s mouth, just as a fish, wild boar, or a bird, which escapes from our power, will become the property of anyone else who seizes it. But he thinks that it is rather the case that the thing remains ours so long as it can be recovered; and even when writing about birds, fish, and wild animals, this, however, is true. He also says that what is lost in a shipwreck does not cease forthwith to be ours; indeed, a person who seizes it will be liable for fourfold its value […]).

Trans. WATSON, amended by author

This specific case was phrased by Pomponius and compiled in one of Ulpian’s edictal comments. It raises the issue of the loss of ownership of a domestic animal (in this case, a pig) which was dragged away by a wild animal (in this case, a wolf). It is evident that the case may be viewed from various perspectives, and that Pomponius considered these. One of the possible solutions is to treat the pig as a wild animal that has been domesticated in the sense of being controlled by a swineherd. In terms of this solution, it is possible to claim that a pig which is lost from the control of its owner and ends up in the jaws of a wolf becomes res nullius, just like the wolf itself, and therefore subject to occupatio.59 However, the prevailing opinion was that, in accordance with the general rule, a person did not lose ownership of a domestic animal after losing possession of it.60 As a result, the owner had the right to recapture the snatched animal. Ownership cannot be lost as long as the thing that has been taken away, in this case a pig, a domestic animal, still exists.61

On the other hand, Pomponius concludes by saying that things lost in a wreck do not cease to belong to the original owner.62 The analogy with the case of the pigs is based on the fact that ownership is not lost, because things are taken away from the owner by natural causes in contexts such as suffering a shipwreck or being attacked by wolves. Domestic animals are easy to compare to things lost in a wreck, because they are the property of the owner, and ownership continues even though possession is lost, when there was no intent to abandon them.63 As happens in several fragments from the title de naufragio, theft of the objects lost in a wreck is considered theft and punished as such.64 Derelictio of domestic animals is an issue not mentioned by any jurist, probably because, given the economic profit that these generate for farm owners, it would have been absurd to get rid of them.65 However, refusing to recover the beasts could be paralleled with the intention of abandoning them.66

Another text by Proculus analyses the question of a wild boar caught in a trap and the responsibility of a person who had freed it from the trap, in consequence of which the wild animal reacquired natural liberty and became again res nullius. The text says:

D. 41.1.55 (Proc. 2 Epist.) In laqueum, quem venandi causa posueras, Aper incidit: cum eo haereret, exemptum eum abstuli: num tibi videor tuum aprum abstulisse? Et si tuum putas fuisse, si solutum eum in silvam dimisissem, eo casu tuus esse desisset an maneret? Et quam actionem mecum haberes, si desisset tuus esse, num in factum dari oportet, quaero. respondit: laqueum videamus ne intersit in publico an in privato posuerim et, si in privato posui, utrum in meo an in alieno, et, si in alieno, utrum permissu eius cuius fundus erat an non permissu eius posuerim: praeterea utrum in eo ita haeserit aper, ut expedire se non possit ipse, an diutius luctando expediturus se fuerit. Summam tamen hanc puto esse, ut, si in meam potestatem pervenit, meus factus sit. Sin autem Aprum meum ferum in suam naturalem laxitatem dimisisses et eo facto meus esse desisset, actionem mihi in factum dari oportere, veluti responsum est, cum quidam poculum alterius ex nave eiecisset. (A wild boar fell into a trap which you had set for such purpose, and when it was caught in it, I released it and carried it off. Can it then be considered that I took away your boar? And supposing that it was yours, would it cease to be or remain your property if I had set it free in a wood? Again, if it ceased to be yours, what action would you have against me? Should it be an actio in factum? He replied: Let us consider whether it be relevant that I set the trap on private land or on public land and, if on private land, whether it was my own or another’s and, if another’s, whether I set the trap with the owner’s permission or without it; furthermore, let us consider whether the boar was so caught that it could not extricate itself or could do so only by lengthy struggling. But I think that the final result is that if it has come into my power, the boar has become mine, but if you had released my wild boar into its natural state of freedom and thereby he ceased to be mine, I should be given an actio in factum, as was the opinion given when someone casted out another’s glass from a ship.).

Trans. WATSON, amended by author

Following the text, wild animals could be compared to things that have been abandoned consciously, either because the owner wanted to do so, or because there was a reason of force majeure.67 Wild animals are free by nature, and even if they have been tamed or hunted, they will recover their freedom when they have escaped from our control.68 Thus while animals can escape and in that way become res nullius,69 in the case of objects, it would be only the intention of the owner to abandon the thing or their lack of care, that would provoke the loss. Proculus does not consider it important whether the trap was located on private or public land, which implies recognition of every man’s right to hunt. In comparison with the right to fish, the right to hunt seems to have been more liberal, since even if fishing is an ius hominis, fishermen can access the sea or shores but must keep clear from private buildings.70

Finally, Proculus refers to an actio in factum,71 comparing the release of the wild boar with a glass thrown out by a third person from a boat. From my point of view, there are three situations in which this event can be compared with the things lost in a wreck. First, there is the responsibility for safeguarding an object binding the nautae due to the receptum nautarum.72 However, the exceptio labeoniana removed liability from the carrier,73 and given that Labeo and Proculus were more or less contemporaries, it could be that the latter was unaware of Labeo’s disposition—although this is not very probable. However, Proculus’ text mentions not a wreck but the event of an item cast overboard, and therefore it could fit into the scheme of carrier’s liability and therefore into the availability of the actio in factum. Secondly, there is the liability of the carrier for keeping goods safe when they were hired to transport cargo, but it was unclear whether the cargo owner leased the ship.74 Finally, there are the cases of jettison, in which a third person (e.g. a member of the crew) throws cargo overboard, and even if the owner did not aim to abandon the object, the danger of the situation leaves no other choice. In such cases, the object could perhaps be seen as abandoned because of the lack of choice from the owner, and, following the Lex Rhodia, if the ship and its crew had survived, they would receive compensation.75 What emerges, therefore, from this issue is an example of how the Roman jurists worked within relatively narrow conceptual categories to obtain solutions to broader problems.

3.2.3 Jettisoning

Jettisoning is the practice of throwing goods overboard to lighten and consequently save a vessel, as well as the lives of those onboard.76 Briefly speaking, carriers were to compensate the owners of jettisoned goods relative to the value of the goods saved as a result, a practice which has been considered to be an early form of maritime insurance, whereby the winners are called upon to relieve the losers through a sort of imposed and organised sense of solidarity.77 This phenomenon has long been part of seafaring, with the dangers of navigation not having changed since ancient times.78 For the Roman period, the Lex Rhodia is considered the primary source of knowledge for the practice of jettisoning and other risks associated with navigation. Unfortunately, we do not know that much about the law itself, but some fragments of it from different periods provide scattered evidence,79 indicating that the law was concerned with private law practices for merchants and sailors who plied their trade at sea.80 The discovery in the harbour of Rhodes of a Latin inscription on a column that records the definition of the Lex by Paul reported in D.14.2.1,81 has led to different interpretations,82 but a recent revision by Badoud identifies the inscription as authentic, and confirms that it was carved following the application of the Lex Rhodia to be included and inserted in Roman law.83

There is no doubt that the nature of the Lex Rhodia, its integration into Roman law, and many other related issues are of great interest, and will still be subjects of discussion among scholars for some time. However, in this section I want to focus on the act of casting goods overboard itself (iactus mercium), and how that legally affected ownership in relation to the actio de naufragio, as well as the issues concerning derelictio and deperditio mentioned above. In one fragment extracted from the Digest title on the Lex Rhodia, Paul, in his thirty-fourth book, commenting on the praetorian edict, says:

D.14.2.2.8 (Paul. 34 ad Ed.) Res autem iacta domini manet nec fit adprehendentis, quia pro derelicto non habetur. (Jettisoned goods remain the property of their owner; they are not treated as having been abandoned and so do not become the property of whoever collects them).

The text is part of Paul’s commentary on an edict concerning the contract of letting and hiring, dating back to the second century BCE.84 The different fragments from Paul’s commentary on this edict (D.14.2.2.1–8) instruct the cargo owners on what to do in case their goods have to be jettisoned to lighten a ship. After describing details concerning how to enforce their contract, the jurist indicated that the goods thrown overboard still belong to the owner, and not to the person picking them up. In this case, the carrier and the crew oversaw throwing the goods overboard, but the intention was not to abandon these goods, and it is assumed that they would return them if they knew that they had reached the coast safely. These principles are explicitly expressed in Julian’s second book on the jurist Minicius (second century CE), where the author indicates the impossibility of pacifically acquiring ownership of these goods (usucapio), since these still belong to a third person.85 However, that Julian mentions someone aiming to establish ownership presumes good faith on behalf of the taker, while a fragment from Gaius reminds us about the possibility of appropriating something with devious intentions:

D.41.1.9.8 (Gaius 2 Cott.) Alia causa est earum rerum, quae in tempestate maris levandae navis causa eiciuntur: hae enim dominorum permanent, quia non eo animo eiciuntur, quod quis eas habere non vult, sed quo magis cum ipsa nave periculum maris effugiat. Qua de causa si quis eas fluctibus expulsas vel etiam in ipso mari nanctus lucrandi animo abstulerit, furtum committit. (It is another matter with those things that are jettisoned in stress of seas to lighten the vessel; they remain the property of their owners; for they are not cast overboard because the owner no longer wants them, but so that the ship may have a better chance of riding out the storm. Consequently, if anyone finds any such things washed up by the waves or, for that matter, in the sea itself and appropriates them with a view to gain, he is guilty of theft).

As Gaius indicates, if someone appropriates a thing with the intention of making profit, that could be labelled as theft. The text belongs to Gaius’ books on common matters and presents a view that aligns with § 5 of the title de naufragio, belonging to his commentary on the provincial edict (155 CE).86 Regarding both fragments, it is possible to appreciate that Gaius, as well as the other jurists quoted previously, understood abandonment as a requisite for acquiring ownership of things thrown off a ship. Ulpian is the only jurist proposing a different interpretation of this issue that aims to exclude the possibility of an actio for theft against the person who finds an object on the coast and takes it in good faith.

D.47.2.43.11 (Ulpian. 41 ad Sab.) Si iactum ex nave factum alius tulerit, an furti teneatur? Quaestio in eo est, an pro derelicto habitum sit. Et si quidem derelinquentis animo iactavit, quod plerumque credendum est, cum sciat periturum, qui invenit suum fecit nec furti tenetur. Si vero non hoc animo, sed hoc, ut, si salvum fuerit, haberet: ei qui invenit auferendum est, et si scit hoc qui invenit et animo furandi tenet, furti tenetur. Enimvero si hoc animo, ut salvum faceret domino, furti non tenetur. Quod si putans simpliciter iactatum, furti similiter non tenetur. (If a person takes what is jettisoned from a ship, is he liable for theft? The issue turns on whether the goods are abandoned or not. If the mind of the person jettisoning was such that he expected that the goods would be lost and thus that whoever found them would appropriate them, a reasonable general assumption, there would be no theft. But if he was not of that mind but of the conviction that if the thing survived, it would still be his, then it could be taken away from the finder. In addition, if the latter had an idea that this was so but took the thing with larcenous intent, he would be liable for theft. If, though, he took it with a view to preserving it for its owner, he would not be liable for theft. Nor would he be if he thought it to have been simply discarded).

This text is one of the diverse fragments of Ulpian dedicated to commentary on the delict of theft (D.47.2.43.4–11), in which the jurist emphasised the importance of the subjective requirement of animus on the part of the subject. Moreover, the most interesting element of this text is when the jurist describes how the aftermath of jettisoning the cargo is viewed by the owner, that even if the intention was not to abandon the goods, they were resigned to the (probable) event of not recovering them. A ship abandoned by its crew was abandoned by it with the sole intention of saving lives and consequently the captain or the magister navis, representatives of the owner or the shipowner, have relinquished in all rights of possession over the vessel which normally disappears after being abandoned. Therefore, whatever can be recovered later belongs to those who do so.

We might consider what would happen, then, if the owner considered the goods to be abandoned, and the finder took them, but then some time afterwards the owner came to know who had taken their goods and their whereabouts. This might seem to be a hypothetical situation, but some fragments of Plautus’ Rudens refer to fishermen who found a box in the sea, and they thought about keeping it, but someone threatened them with telling the owner that they stole the box from him.87 In that case, we should consider the principle of the non-retroactivity of a situation that took effect previously.88 Secondly, another element implied in Ulpian’s text is that of the finder’s intention, being either to keep the things for themselves or to take them in order to make a profit. Either way, I think that one key element of Ulpian’s text, is the idea that the finder knew that the goods came from a wreck or a ship that had suffered dangerous circumstances.89 The latter is an essential feature when considering the fragments from the title de naufragio dealing with these events.

3.2.4 Direptio

As could not be otherwise, when fragments of the title de naufragio address cases involving things lost in a shipwreck, they also tackle the risk of these goods being pillaged. The definition of direptio (pillaging, sacking) is phrased thus by Ulpian in § 3pr–1:

D.47.9.3pr. (Ulpian. 56 ad Ed.) Quo naufragium fit vel factum est, si quis rapuerit, incidisse in hoc edictum videatur. Qui autem rem in litore iacentem, postea quam naufragium factum est, abstulit, in ea condicione est, ut magis fur sit quam hoc edicto teneatur, quemadmodum is, qui quod de vehiculo excidit tulit. Nec rapere videtur, qui in litore iacentem tollit. (Where a wreck occurs or has occurred, if someone seizes something from it, this edict applies. A person who takes away something lying on the shore after the wreck, however, is in such case a thief rather than subject to this edict, as would be someone who takes something that falls from a vehicle. Nor is someone regarded as looting who picks up something lying on the shore).

In this text, Ulpian follows the line of thought previously presented in D.47.2.43.11, highlighting the importance of animus, but also of the context in which the removal is performed. Indeed, the following fragments of § 3.1–2 complement his description and highlight the importance of the removal taking place during or immediately after a shipwreck to qualify as belonging to the sphere of the edictum de naufragio.90 Indeed, that is one key element differentiating this action from regular theft, as I will explain further in the next section. In addition, under the title regarding the Lex Iulia de vi privata, we find one fragment from Marcian that establishes penalties under that statute for people pillaging from shipwrecks:

D.48.7.1.1–2 (Marcian. 14 Inst.) Eadem poena adficiuntur, qui ad poenam legis Iuliae de vi privata rediguntur, et si quis ex naufragio dolo malo quid rapuerit. 2. Sed et ex constitutionibus principum extra ordinem, qui de naufragiis aliquid diripuerint, puniuntur: nam et divus Pius rescripsit nullam vim nautis fieri debere et, si quis fecerit, ut severissime puniatur. (The same penalty is inflicted on those who fall under the penalty of the Lex Iulia on vis privata, as also on anyone who with malicious intent seizes anything from a shipwreck. 2. In addition, however, in accordance with the Imperial constitutions, those who steal anything from shipwrecks are punished extra ordinem; for the deified Pius wrote in a rescript that there must be no vis shown to sailors and that if anyone does so, he should be punished most severely).

According to that fragment, Marcian was proposing two possible punishments: either the confiscation of a third of their patrimony and infamy under the Lex Iulia, or a penalty chosen by the magistrate in charge of the cognitio extra ordinem. It is difficult to know what exact event moved the emperor to enact such a strict prohibition, but another fragment from the same book of Marcian also reflects the emperor’s concerns over violence, via a rescript addressed to the Thessalians.91 Other fragments from the title de naufragio, including Imperial constitutions (§ 4.1; § 7; § 12), follow the same line of thought, as I will describe shortly. However, the fact that the text of these rescripts was included in the Digest indicates that the provisions came into common use and may be considered as the general norm governing Roman maritime landscapes. In addition, this indicates that shipwrecking and its related conduct had not disappeared over time, especially in the provinces, to which these fragments seem to be particularly addressed.92

The last part of § 3.8, belonging to Claudius’ era, indicates that those pillaging from a wreck should provide to the fiscus as much as the condemnatio for the actio de naufragio established. This legal measure is part of a longer fragment that refers to the provocation of wrecks, punishing those culpable as if they were murderers.93 The fiscal measure undertaken in the Claudian period could perhaps be linked to the famine and food crisis of the years 40–41 CE,94 which could have compelled the emperor to persuade the merchants to put to sea in the winter,95 as well as granting them privileges in order to entice them to provide food supplies for Rome.96 That the measure was addressed to protect private carriers should not surprise us, since Roman private merchants were in charge of this supply.97 In this way, this measure may have sought to protect carriers as well as to gain a bit of profit for the Imperial treasury, in contrast with the measures indicated in D.39.4.16.8; D.47.9.7; 47.9.12pr. and C.11.6.1, which openly forbade the fiscus to collect any wrecked goods. These fragments underline that at the time of Caracalla, it seems that the fiscus could demand the payment of toll taxes but had nothing to do with wrecked cargoes.98 One fragment of Fortunatianus’ Ars rhetorica (before the fourth century CE) indicates the opposite view; this can be considered perhaps a sign of the change in Caracalla’s policy, which was again in force during Justinian’s reign and included in his codex.99 Otherwise, it could be considered to be either ignorance on the part of the writer of the actual practice in force, or simply a reflection of the activity of the publicani as witnessed by the writer, who considered that to be lawful (even if perhaps the publicani were simply abusing their power).100 Finally, one last hypothesis on this text points to the possibility that the rhetor was referring to navicularii working in the service of the state.101

Three fragments (§ 7; § 4.1. and § 12) from the title de naufragio refer to wrecked goods, and even if they impose different repressive measures, they are all unanimous in that they forbid a third person to pick up the goods, since it must be the owner who collects them (§ 12), and it is quite clear that goods found on the shore belong to a wrecked ship.102

The text of § 7 belongs to the second book of quaestiones by Callistratus, which was written during the Severan period, and provides advice for the types of cases that, sometimes took place in the provinces.103 Callistratus mainly focused on problems that imply the use of the cognitio extra ordinem procedure, and commonly used Imperial constitutions to solve them. Callistratus’ fragment refers to an earlier Imperial constitution from Emperor Hadrian, which establishes that even if a ship has been wrecked on a shore where there were private buildings, the owner of that property would still not be entitled to collect the wrecked goods. This assertion is in line with Roman law’s consideration that the sea and the shore were common to all people (D.1.8.2.1), and therefore, when someone builds something on it, the shore remains in the public sphere even though the building belongs to an individual.104 This view offered protection to carriers in cases where the owners of shoreline villas were the ones causing the wrecks, and then obtaining ownership of the goods because the ship had crashed on their land. In cases where these individuals are proven to have looted, the provincial governor will inflict a penalty as if they were thieves.105 The owners should not interfere with the wrecked things at all, which in turn implies that they are not even compelled to exercise guardianship over them.106 Finally, the text refers to the possibility of gathering witnesses who can provide testimony at a hearing in cases where someone has suffered from a wreck and wants to compel the local authorities to pursue a prosecution.107

Taking a different approach, § 4.1 establishes different penalties according to the status of the people pillaging from the wrecks, which reveals a typical feature of the late procedure extra ordinem.108 The punishment would then depend on the classification of the offenders, either as citizens of high status (honestiores) or low or humble status (humiliores).109 This distinction—which first appeared in the second century CE and settled in the third century CE110 was based on ranked privilege, meaning that the honestiores were subject to lighter penalties, while the humiliores were subject to various forms of the death penalty and condemnation to the mines, to public works, and to whipping or beatings. However, our fragment in fact describes a trichotomy, in which different penalties would be applied to honestiores, humiliores, and sordidiores. The category of sordidior mentioned here is unique in the Digest, and I have argued elsewhere that perhaps the term refers to the quality of the booty, since in many other sources sordidior refers to objects,111 and the text, praeda could be interpreted in that way.112 In addition, § 4.1 indicates that the penalty will be applied in the light of the status of the offender and the gravity of the offence. However, even if the fragment mentions the status of the offenders, what needs to be stressed here is that the different punishments for different subjects largely depended on whether they were free or enslaved, as these categories may have worked better in different contexts, especially when applied to provincial areas.113

To sum up, the fragments from the title de naufragio provide different penalties depending on the period when the Imperial constitution was released, but all of them maintained the opinion that the initial owner of the shipped goods retained ownership of the goods when wrecked, lost, or jettisoned. The difference lies in the fact that these fragments always view the event of the wreck as qualifying the situation, and in that way, they indicate that no one should interfere with collecting the booty, because it is obvious that it belongs to a wreck. And whether the intention was to obtain a straightforward profit for the pillage or there was a more devious aim for these behaviours, there were some specific qualities that defined whether the action should be punished as theft or robbery.

3.2.5 Stealing from Shipwrecks: One Peculiar Case

In its classical conception, theft was confined to cases involving a physical carrying away (ferre) of goods. However, during the course of the Republic, the notion was extended very considerably until it covered almost any species of dishonesty.114 For that reason, there was more than one action associated with it; but the most common was the actio furti nec manifesti (the claim for non-manifest theft), which went right back to the Twelve Tables and appears in a fiction of citizenship described by Gaius which I have detailed previously.115 It is probable that robbery, before the enactment of the praetorian edictum, was punished like a case of furtum nec manifestum with a penalty of double the value of the thing stolen (in duplum).116 The seriousness of the robbery in comparison to the furtum nec manifestum could have pushed the praetor to introduce some specific actions, modelled on the more serious type of furtum manifestum with a penalty in quadruplum.117 Regarding that, I have previously explained the relation between the edicts vi bonorum raptorum and de naufragio, as well as referred to the possibility, established by Ulpian, of using remedies from both private and criminal law (at least during his time).118 However, the distinction between theft and robbery is not always crystal-clear. In that sense, § 5 under the title de naufragio contains a text from Gaius’ book 21 of the commentary on the provincial edict, in which the jurist establishes some differences between an ordinary theft or robbery and stealing from shipwrecks:

D.47.9.5 (Gaius 21 ad Ed. Prov.) Si quis ex naufragio vel ex incendio ruinave servatam rem et alio loco positam subtraxerit aut rapuerit, furti scilicet aut alias vi bonorum raptorum iudicio tenetur, maxime si non intellegebat ex naufragio vel incendio ruinave eam esse. Iacentem quoque rem ex naufragio, quae fluctibus expulsa sit, si quis abstulerit, plerique idem putant. Quod ita verum est, si aliquod tempus post naufragium intercesserit: alioquin si in ipso naufragii tempore id acciderit, nihil interest, utrum ex ipso mari quisque rapiat an ex naufragiis an ex litore. De eo quoque, quod ex rate nave expugnata raptum sit, eandem interpretationem adhibere debemus. (If someone removes or seizes something salvaged from a wreck, fire, or collapse of a building and put it in another place, they will be liable on the action for theft or that for things taken by force, even though they were unaware that it comes from a wreck, fire, or collapse of a building. Many are of the opinion that where someone appropriates from a wreck something that is lying washed up by the waves, the same applies. This is true if some time has elapsed since the wreck; but if what happens occurs at the very time of the wreck, it is irrelevant whether the seizure be made from the sea itself, the wreck or the shore. We must adopt the same interpretation in respect to what is seized from a raft or ship which has been stormed).

Most of Gaius’ comments on the provincial edict seem to have been written under the reign of Antoninus Pius,119 who, as we have seen previously, had established strong punishments for pillaging from a wreck.120 However, this fragment underlines the fact that there was a possibility of using a private action or other remedies extra ordinem for the events deriving from a shipwreck. The fragment repeats the traits that would qualify for the edictum de naufragio, and the fact that it corresponded to the commentary on the provincial edict seems to indicate that in many cases there was not such a large difference between the edict of the praetor urbanus and the provincial edict.121

According to the text, someone who took something that was rescued from a shipwreck from the shore was liable for theft or robbery, if it happened sometime after the wreck. However, if that same person took the object from a sinking ship, a vessel under attack, or from the coast as the wreck was happening, or knew that the thing came from a wreck, then the edictum de naufragio applied. That might qualify the behaviour referred to in the text of the edict as a particular kind of robbery.122 Gaius’ mention of the actio vi bonorum raptorum might be another sign that this actio encompassed the behaviours targeted in the actio de naufragio, and that this broader version of the edictum was the one compiled in Julian’s perpetual edict, which Gaius was copying.123

In the text, Gaius uses the words subtraxerit aut rapuerit, and I think that the element of the time elapsed after the wreck, and whether the act was carried out furtively, need to be considered here. Subtrahere is definitely a behaviour contemplated in the delict of theft,124 but if this took place only after the wreck, it would be considered as belonging to the conducts targeted in the edictum de naufragio. A similar approach can be seen in Ulpian’s § 1.5, § 3pr. and § 3.4–5, in which he mentions the behaviours rapere and amovere; the latter behaviour does not imply force or violence, but if it is carried out during a wreck or just after it, it still falls within the scope of the edict.125 Indeed, according to Gaius, when something belongs to a wreck and is seized as that event is happening or just after it, it would fall under the edictum de naufragio, whether the goods are taken from the shore, the ship, or the sea itself. In another fragment, Gaius specifies that if someone collected something from a wreck that was floating at sea (therefore, after the wreck has happened) with the intention of obtaining a gain, then they would be guilty of theft.126

In sum, the removal of the thing, or in any case its apprehension at the time of a shipwreck, implies of itself responsibility under the terms of the edictum de naufragio. Intent is necessarily present in this behaviour (what the defendant knows or should have known mean the same thing here). Thus, when an action or removal occurs under circumstances that do not allow us to know the origin of a thing, specific malice is necessarily implied; that is, the precise awareness of the origin of the thing is necessary. Given the principles that were established regarding the subject of objects lying on a beach (res iacens), we must believe that an actio for theft would always have been an option, unless the defendant proved that he had believed that the thing was abandoned (pro derelicto habita).

3.3 Ownership between Land and Water: Mental and Legal Chorographies

Chorography is the art of describing or mapping a country, and is concerned with the significance of places, regional descriptions and characterisations and local histories, and the representation of these characteristics. The discipline is rooted in classical antiquity, and is described in a variety of classical texts, though few explicitly chorographical works have survived from antiquity.127 These descriptions of regions and places were often instilled with the enthusiasm engendered by an expanding Empire, which affected their perceptions of space.128 Roman jurists described the landscapes occupied by the sea or land with regard to their civil law in a similar way, considering the land to be a realm of precise rights and duties, while the sea was a space beyond their sovereignty, and even rivers represented limitations to their governance. One clear example of the legal limits of this distinction between land and sea would be D.47.10.14 (Paul. 13 ad Plaut.) in which Paul indicates that the interdict which can be used in a sea context is the one regarding the possession of land (uti possidetis).129

In this section, my intention is to see how jurists legally described landscapes in relation to watery spaces, i.e. either seas or rivers. Their views reflected the domain of influence of Roman civil law, its limitations, and the methods they employed to attempt to govern these watery realms. What the jurists expressed about their maritime or riverine landscapes is not necessarily a map of the ‘real world’ but nevertheless of a world that a person of the time who lived in it would recognise. Their descriptions capture a particular interpretation of their world that provides an insight into their legal and political conceptions of land and sea, which hinge on what they deemed was important in their historical moment. I have already presented in previous sections some texts concerning the human relationship between the concept of ownership and the sea. In the next sections, I would like to explore how the interactions between land and water were conceived of by the jurists in their own ways to establish the boundaries between public and private domains, and whether the dichotomy established between sea and land translated in similar ways to riverine spaces.

3.3.1 The Gradual Domination of Wild Nature

Nature is one of the central concepts of Roman culture, generating both the Bucolics and the Georgics, Pompeian frescoes and major philosophical works. Hence the widespread feeling that nature would have been from the outset a fundamental notion of the Roman mentality, the potentialities of which would have gradually been expressed in all areas of culture.130 The Roman perceptions of the world surrounding them can be perceived through their transformations of nature, so there is a need to link the naturally real from the culturally imagined.131 The attitude of the ancients towards nature is so broad a subject that I must state here that my purpose is not to provide an exhaustive treatment, but only a suggestive sketch of the ways the Romans tried to dominate the nature related to maritime landscapes. In connection with that, the focus is mostly teleological, meaning that their interactions with nature were adapted to some end or purpose.

One well-known fact is that the Roman landscape was strongly marked by the work of man through the irrigation works, the aqueducts, the road system and the borders that delimited it from the people considered barbarians. Regarding agriculture, the literature on the topic—Cato, Varro, Columella—reveals no love of nature, but rather an interest in utility and profit. Protection of nature was only important if preservation of resources—with a view towards future profit—was a factor.132 The Romans transformed their surroundings to achieve their goals and celebrated, in an emphatic way, the so-called homo faber who, as Cicero wrote, was able to create a second nature with his hands.133 Cicero’s Stoic interlocutor describes the universe and includes the geographical features of the earth itself, its water, plants, and natural resources, animals, the race of men, the works of men, the sea, the islands, coasts, and shores, marine animals, the air and sky, the sun and its regular orbit, the moon and planets and their orbits, and the stars.134 The list suggests that human civilisation, as well as the products of its labour, were considered an integral part of the natural landscape. Therefore, humankind was the creator, and thus had the right to dispose of nature, which it had subjugated, as happened with the case of channelled rivers.135 Ultimately, the Roman world and its management of nature could not exist without the power of the government, but as Cicero says, seas obey the universe (sine quo nec domus ulla nec civitas nec gens nec hominum universum genus stare nec rerum natura omnis nec ipse mundus potest; nam et hic deo paret, et huic oboediunt maria terraeque).136

However, even if the sea was still considered a realm that could not be completely tamed or dominated by human force or law, there were ways in which Romans manifested and symbolised their governance over the maritime world. One notable example of Roman domination of seashores is the villa maritima, which, by the first century CE, had become a metaphor for human control over nature and a symbol of civilisation imposed on the natural landscape.137 One of Purcell’s three stereotypical ways in which the ‘powerful’ express control over nature by altering the landscape was by tampering with the sea, as happened with private constructions such as villas.138 Indeed, these constructions were built in such a way that they could be seen from the sea, to express the power of the owner to tamper with the sea, but also as representative of the Roman people who owned the seashore.139 Indeed, the notion of taming implies control and an awareness of the events and processes that shape the physical environment. Thus, the maritime cultural landscape represented by these villas changed its significance as much as the constructions of these buildings was carried out by different hands. During the Republican period, to look at the Roman villae maritimae from the Campanian coast would have been like browsing an address book of the Roman jet-set of the time,140 while later, many villae were owned by the emperor and his circle, as well as wealthy people.141 Therefore, the maritime cultural landscape represented by these villae embodies the political and economic power of the different periods of Roman history, and how these forces dominated the savage sea.142 Statius’ poem celebrating Pollius’ maritime villa in Surrentum is a way to present the owner of the house as a creator, and therefore a tamer of nature.143

Building villae was not the only way Romans manifested their supremacy over nature; they also domesticated and tamed wild animals, obviously accompanying that exercise with its corresponding narrative. The taming of animals and nature is a common exercise in different historical periods, and in the end it is what all human groups have in common; the narratives tell us as much about how the narrators view their own humanity as they do about their attitudes and relations with animals.144 One of the narratives presented in this volume concerns the otherness of the sea and its hostility,145 which was also extended to fish, since these came from the sea, a dangerous anti-world which could turn upon people.146 So the act of enclosing fish in piscinae and vivariae had not only a functional meaning for the villae that ate them, but also symbolised the power of mankind over the sea and its creatures. In this case, the narrative of domination was manifested in the acquisition of ownership over the creatures kept in these artificial environments,147 the privilege of having fish installations as decoration,148 and in the profits earned from aquaculture.149 Regarding aquaculture, this activity sometimes required minimal human intervention in terms of modification of the environment (this was known as ‘extensive’ aquaculture, and used natural resources available as well as perishable materials), while intensive aquaculture employed man-made masonry or rock-cut fishponds. The latter indicates that there was no need for massive efforts to be made to build and alter the environment to feed the narrative of human domination over nature’s wilderness: it sufficed that humans used its resources for their own benefit.

3.3.2 Public and Private Realms: Sea and Shores

What does it mean to call a space ‘public’ or ‘private’? Things were classified according to whether they could be owned privately or not, a distinction of obvious practical importance. Even if some things or spaces were not susceptible to being acquired by individuals, or even by the Roman state, these needed to fit into some juridical category, so as to manage the interactions with land and flowing water, and establish the applicable categories of ownership. In that sense, the sea was affirmed as a thing common to all (res communis omnium),150 and therefore not subject to private property (and there was no extension of state jurisdiction seaward). The famous passage of Marcian D.1.8.2pr. (Marcian. 3 Inst.) in which the jurist includes the sea in that category has been widely discussed to determine issues such as the origin of that classification or its rationale.151 In that regard, the most widespread opinion is that the category of res communes omnium was part of the res publicae (belonging to the state and the Roman citizens),152 and was only separated from it during the later classical period.153 The latter responds to a mutation in the configuration of populus and res publicae as the Empire grew and the Roman state was strengthening its institutions, which was not underestimated by the jurists. While Ulpian had already indicated the need to juridically configure a new category by which sea and seashore were accessible to all,154 it was Marcian who established the classification. Above all, the constitution of a new category outside the res publicae responds to the context in which Marcian wrote his works, responding to the exigencies of the exploitation of the seas, as well as to the traffic of subjects from different legal backgrounds along their shores.155 Indeed, the profiteering of aqua profluens became more and more frequent and economically important, requiring a juridical treatment that was not easy to adapt to pre-existing schemes that only included the use of public things by citizens. Consequently, Marcian did not construct a category based only on the strength of pure philosophical reminiscences or for reasons of cultural tradition, but rather responded to needs of a practical and logical nature.156

Moreover, the seashore was declared to be free of access for all people to exercise the right of fishing.157 However, one essential trait of Roman law is that it was interpreted, not created. That meant that even if these abovementioned principles were the standards, there was space for nuancing these broad definitions through an understanding of different individual cases. Here, I would like to think about two activities that took place on the seashores and affected the maritime landscape, namely the construction of buildings or other structures, and fishing. Both endeavours were carried out both publicly and privately, and their legal and spatial spheres were intermingled on many levels. Indeed, that was the case in many fields, which is the reason that defining what is public and private in the Roman world was problematic and needed to be understood in the context of the spaces targeted.158

Regarding the seashores, their legal status was a bit unclear, varying from ‘not belonging to anyone’,159 to ‘being open to all’, to ‘belonging to the whole people’.160 Therefore, they belonged to no one and to everyone at the same time. More important than their legal status was the actual use of the seashores, which were accessible to everyone. During the reigns of Hadrian and Antoninus Pius, it is possible to appreciate an evolution with respect to the status of the seashore. It was increasingly interpreted as something that was either free of use for all, or public in the sense of belonging to the Roman people, and ergo to the Roman state, and as such liable to be leased.161 From reading the Digest, it seems that private constructions were allowed when they did not interfere with public use, but they are ambiguous about indicating whether or when an official permission to build these structures was needed.162 In that sense, a text from Pomponius (second century CE) suggests the need to obtain a decree from the praetor in order to build anything on the seashore.163 To the meaning of that text, we need to add the limitations implied by the assumed public use of the shore.164 As early as the first century BCE, the tabula Heracleensis (45 BCE),165 containing the Lex Iulia municipalis (ll. 66–75) indicated the illegality of building in public places without taking into consideration the disturbance to the usus publicus. The same goal appears in later praetorian dispositions that used interdicts to protect places such as rivers, shores, and ports from being rendered less accessible to ships or useful for fishing.166

Indeed, § 7, § 8, and § 12pr. describe the limits of private property when a catastrophe such as a wreck occurs. If a wrecked ship or its cargo arrived on the shore of a private property, the owner was forbidden from picking up the salvaged goods, which otherwise would fall under the scope of the edict and would be identified as direptio ex naufragio, or theft qualified with violence, stemming from the catastrophic situation. If we follow Russell’s conclusions on public and private space (qualified with a political twist), what makes the space publicus is not collective ownership but the absence of individual control.167 In the case of private constructions erected on seashores that were common to all, the owner had limited control when a shipwreck occurred and interacted with their property, and could not curtail the use of their land for public means such as fishing. In addition, in the fragment D.39.1.1.18 (Ulpian. 52 ad Ed.), Ulpian defended the principle of the freedom of building structures in the sea or on the shore (in mare vel in litore). However, the Severan jurists indicated that whoever builds something on these premises should be aware that they are not building on their own land (in suo non aedificet), which would otherwise be theirs by virtue of the ius gentium and not ius civile.168 The case of the villae sustains the assertion made here of the vague categorisation of public and private spheres in the Roman world, which seems to be especially noticeable in areas where there is an interaction between land and sea. The case also underlines the ineptitude of Roman civil law in taking care of certain situations that needed to be brought under the umbrella of the ius gentium.

Another way to exert control over the sea, in the view of Purcell, was through the construction of ports, harbours or anchorages.169 Being both public places and part of the sea, their regimes of appropriation and uses were subject to the same praetorian rules as the sea, rivers, or bodies of fresh water in general.170 Several interdicts (orders issued by praetors and proconsuls), issued at the request of a claimant, took steps to protect seashores and riverbanks from being used as dumping grounds and/or construction sites, and to prevent the construction of anything that would affect the existing quality of the harbour facilities for sailing, mooring, and other port-related activities.171 A well-known fragment from Ulpian172 indicates that the term ‘port’ (portus) designated an enclosed, safe space where activities related to the import and export of goods took place. According to Lenel’s reconstruction,173 this fragment was part of a commentary on the edict concerning rivers being characterised as public, and was located palingenetically after the edictum de via publica et itinere publico reficiendo (on the reparation of public roads and ways).174 Ulpian defines portus, in a nuanced way as a public space that should be protected. The first thing to be noted from Ulpian’s definition is that it references a protected space, without specifying whether it was natural (e.g. limen) or artificial (e.g. kothon),175 and thus it probably includes both categories. There are two traits in Ulpian’s text that can help define a space as a portus, and then qualify it as a public area: the first one concerns the protection of the ships entering and mooring in a port, and the second refers to the import and export activities that took place in ports. Both functions are related and need to be contrasted with the infrastructure of the port, which allowed for the navigation and protection of ships. Addressing the same issue, Impallomeni divides the different structures of a port according to their use.176 However, the latter constitutes a taxonomical but impractical exercise, since a port needs to be understood as a whole, composed of diverse elements that allow for both protection and transit.177

The other notion included by Ulpian in his definition is that of statio, which he defines in the same book ad edictum, indicating that we derive statio from ‘to stay’: therefore, a place is indicated where ships can stay in safety, constituting part of the shore’s structures that allow the passage of ships.178 The generic nature of Ulpian’s reference, allows one to recognise in the statio not only the fixed river port with anchorage and storage facilities, but also any type of place where a ship could stop in safety.179 This polysemy is noticeable not only in the legal sources, but also in the archaeological evidence, which displays the polyfunctionality of stationes, as well as the diversity of the features associated with ports. In the context of this definition, these fixed places would have been located in association with a port where ships could stay in safety, but also where cargoes were controlled and taxes collected.180 Therefore, with his definition, Ulpian was referring to ports not necessarily as places with a specific physical layout, but as systems with related human labour. This latter point highlights that ports and stationes could be used to delimit the landscape and extend the power of the state to control the space occupied by them. Even if the sea was held in common by all, this does not mean that public power would not be extended to the sea in order to patrol the coasts, gather taxes, monitor fishing activities, or prevent the provocation of wrecks.

Indeed, Juvenal, in his typically satirical and hyperbolic tone, refers to the effort that the Roman state took to monitor the coasts due to the financial gains derived from fishing.181 However, in the Roman world, fishing was—at least in theory—an activity open to everyone,182 although the Roman state obtained revenues from it,183 and indeed many of the structures needed for large-scale fishing were not affordable for the average fisherman.184 However, the public character of this activity at sea can be appreciated because people could fish (ius piscandi) in ports without suffering the usual limitations imposed by the presence of private buildings, monuments, or estates.185 Fishing must have been a rather common activity in Mediterranean ports, judging from the references in legal texts, the existence of fishponds in ports and the fishing traffic surrounding these structures.186 The situation was different in internal waters and lagoons, areas which could be owned by private individuals, municipalities or the Roman state.187 The latter raises problems based on individual ownership, instead of connected with individuals and areas that belonged to all humankind.

3.3.3 Riverine Spaces

What do rivers and the sea have in common in Roman legal thought? In the Digest, rivers are classified as elements (as were the air, and the sea), and most of them are considered public spaces by the third century CE.188 In that sense, I have previously referred to the works of Marcian, also from the third century CE, in which he refers to the public nature of the sea and its shores.189 Concerning rivers, we can distinguish (not without difficulty) between the public and the private, generally according to the legal nature of the places they pass through, and therefore establishing a parallelism between the regime of the soil and that of the flowing water.190 That notion of public rivers progressively encompassed canals as well, because these took their water from the rivers.191 In contrast, defining the riverbanks seems to have been difficult, as we can find different interpretations by different authors, but a consensus was still reached by the third century CE in that riverbanks were considered public from the point where the banks sloped down toward the water.192 Beyond that point, ownership of the banks belonged to those whose landholding was contiguous with them and who had any trees on the banks.193 The latter is justified in that, when dealing with the protection of rivers and river-related areas, the legal remedies balance utilitas publica and private interests.194

In addition, other features such as navigability,195 the possibility of diversion,196 the abundance of fish,197 or whether the waters were perennial or seasonal198 helped qualify rivers as public. Of these features, navigability was the one that attracted the most attention from the jurists, which highlights their importance as channels for transport.199 That being said, the public character of a river ensured that nobody could claim ownership over it, or act in a way that would damage the river.

The praetorian edict on public rivers established that no one should do anything to or put anything into a river, or onto its banks, that could make the passage of a boat more difficult.200 Indeed, public rivers, as well as public roads, were protected via interdicts, by which the actor aimed to prevent any violence being caused in these spaces.201 The similarities between sea and river spaces becomes apparent in a fragment in which Ulpian, commenting on the edict on public rivers (from an unknown date), and quoting Labeo, says that nothing shall be done in the sea or on the shore by which the anchorage, landing, and passage of a boat is made worse.202 Therefore, the public nature of the watercourse also guarantees its public use, and no one can appropriate it or act in such a way that its purpose is harmed by it. This principle, fixed by the edict of the praetor, is followed by Gaius203 and Paul;204 at first, it came under the ius gentium, and he consequently identified these spaces as being outside the realm of the civil law of the Romans.

As happened with the sea, a river was not only a boundary between legal realms, but also a defining feature of the concept of ownership. Pomponius, in his thirty-fourth book on civil law, indicated that the alluvion restores what the flood of the river took away; because the ownership of the land would thus be restored to its original owner.205 However, even if these spaces were legally characterised in similar ways by the jurists, there was also an essential difference between them that probably stems from the fact that a river is a delimited space between two lands, while a sea opens towards an empty horizon. If one looks at the writings of Roman land surveyors (agrimensores), even if they recognised these features as boundaries with the land, they also considered their associated issues for the practical application of law for landholders.206 Their accounts definitely refer to the sea as a boundary in their area calculations, and they therefore excluded it from their maps.207 Similar views can be formulated from the epigraphic evidence of the cura riparum, showing that the state took responsibility for its relationship with the riverine environment and tried to regulate the use of rivers.208 Even if we know of the existence of paid divers, or urinatores, most of the sea bottom may have been seen as an unreachable space for the Romans, while a river bed would not constitute such a remote zone.209

Because of their potential destructive power, rivers and their related water channels were at the heart of many provisions concerning the rights of neighbours, landholding, and of course the disputes caused by disruptive groups.210 The avulsion and alluvion produced by the river flow often caused islands to rise from the riverbed.211 This is a textbook case to teach one of the ways of acquiring ownership (accessio) of things that do not belong to anyone (res nullius). In the classic fragment of Gaius, the island would belong to either one or the other of the individuals that owned the land on the opposite riverbanks (or to both), depending on whether the island appeared on one side or the other of the riverbed.212

One fragment from Neratius’ second book of responses compiled in the title de naufragio,213 refers to an event taking place in a river space, providing evidence of an event that would not have been uncommon in the Roman world:

D. 47.9.8. (Neratius 2 Resp.) Ratis vi fluminis in agrum meum delatae non aliter potestatem tibi faciendam, quam si de praeterito quoque damno mihi cavisses. (If your raft should be brought onto my land by the force of the river, you will not be able to exert control over it unless you first give me a cautio with respect to any prior damage to me).

The text refers to the force of a river stream that brings a raft onto someone else’s land, potentially causing damages. Anyone who has caused damage to the owner of a land, even without intent, must repair the damage caused or may not recover the ship. This fragment introduces the topic of the possible objective liability of a raft owner who inadvertently caused damage due to a force that he was unable to avoid, an issue that will be addressed in depth in chapter four. This event seems to have attracted the attention of Neratius, who is mentioned by Ulpian in the following fragment:

D.10.4.5.4 (Ulpian. 24 ad Ed.) Sed et si ratis delata sit vi fluminis in agrum alterius, posse eum conveniri ad exhibendum Neratius scribit. Unde quaerit Neratius, utrum de futuro dumtaxat damno an et de praeterito domino agri cavendum sit, et ait etiam de praeterito caveri oportere. (If a boat has been driven onto someone’s land by the force of a river’s current, Neratius says that they can convene an actio ad exhibendum. Hence, Neratius asks if the landowner should be given a cautio only for the future damages or also for the past, and then he says that he should also be given this for the past damages).

If a river has pushed a raft onto someone’s land, Neratius says that they can call an actio ad exhibendum on the one asking to recover it, with the condition that a caution shall be given to repair future and past damages (which means the damages caused by the raft being driven onto the land and the damages that will be caused when it is removed). It seems, at least for the classical period, that this actio had processual autonomy and that in this case it induced the landowner, to let others take things from the fund that were not his.214 However, both texts seem to indicate that this permission was subordinated to the promise of paying the damages, and until that occurred the landowner could retain the raft.215 It is especially interesting that in this text, Neratius considers both the shipowner and the landowner, while Ulpian, by including this in his commentaries on the edict,216 was extending the effect of Neratius’ reasoning.

At this point—and also considering that Neratius probably took part in the consilium of Hadrian—it is more than legitimate to assume that, concerning the edict in question, he wanted to project this approach to the sinking of a small boat on a river onto the wider plane of shipwrecked seafarers from large transport vessels.217 These procedures aimed to force the landowners to allow the recovery of the res ex naufragio by the original owner, but only if there was a promise to repair the damage, or the salvaged goods could be retained by him. Therefore, the interpretation put forth in this text fits well with the cases of the seashore’s landowners who took things from wrecks, since the actio ad exhibendum or similar remedies based on this actio applied in cases in which it was proven that these objects were salvaged from a shipwreck. The latter can be appreciated in the solution provided in § 7 of the title de naufragio, which specifies that landowners who had suffered damages to their property because of a wreck could ask the governors or praefecti for a solution to their problem, but should never touch the salvaged goods before that, or they would be considered thieves.

In relation to the procedure, Ulpian indicates that in the case of a river bursting its banks so that if the flooding water disturbed previously marked boundaries, these would be restored by a surveyor.218 This later point highlights what is probably the key difference between the riverine and sea spaces, being that the river spaces were susceptible to being maintained, controlled, and organised, while the sea was not. For that reason, we do not find texts in which surveyors restore or assess borders on the seashore, and while we can find several dispositions in the Digest dealing with the maintenance, management, and protection of rivers, springs, and canals, we do not find similar dispositions for the sea. This again underlines the unpredictability of the sea.

1

Kantor 2017, 66.

2

As a res communis omnium, cf. D.1.8.2pr.–1 (Marcian. 3 Inst.).

3

Kantor, Lambert and Skoda 2017b, 26; in the same book, 183.

4

e.g. Thiel 1954.

5

Hornblower 2016.

6

The term was first coined by Mahan 1890, who outlined the conditions affecting the sea power of nations.

7

Westerdahl 2003, 467.

8

D.18.1.34.1 (Paul. 33 ad Ed.), see also Buckland 1975, 182–186.

9

See D.1.8.2pr–1 and D.1.8.4pr–1 (Marc 14 Inst.), also in chapter two, section 2.1.1. Also, D.43.8.3.1 (Celsus 39 Dig.) ‘the sea, like the air, is for the common use of humankind’.

10

Purpura 2004a, 165–166; Fiorentini 2003, 53; 434; Marzano 2013, 235–239, with several literary references, contra, Dumont 1977, 53–57.

11

Purpura 2007, which would imply that this text refers to a private owner who does not wish to be disturbed by these fishing activities. Marzano 2013, 247, shares his opinion, and locates the events taking place in this text near Acholla in Tunisia.

12

And a servitude is based on the right of a person, other than the owner, primarily the proprietor of a neighbourly immovable, to make certain use of another’s land. See: Franciosi 2002, 105; Fiorentini 2003, 424; Purpura 2007, 2163, 2173.

13

Written under Antoninus Pius, cf. Orestano 1966, 271–274.

14

Tuori 2018, 210–211.

15

D.1.8.10 (Pompon. 6 ex Plautio) Aristo ait, sicut id, quod in mare aedificatum sit, fieret privatum, ita quod mari occupatum sit, fieri publicum. (Aristo says that only as a building erected in the sea becomes private property, so too one which has been overrun by the sea becomes public) (Transl. Monro).

16

The Romans created a specific concrete for use in the sea as maritime construction expanded, as we can see in Brandon et al. 2014; Stefanile 2015b, 34–39.

17

D.41.1.7.3 (Gaius 2 Cott.) (= Inst.2.1.22) Insula quae in mari nascitur (quod raro accidit) occupantis fit: nullius enim esse creditur. In flumine nata (quod frequenter accidit), si quidem mediam partem fluminis tenet, communis est eorum, qui ab utraque parte fluminis prope ripam praedia possident, pro modo latitudinis cuiusque praedii, quae latitudo prope ripam sit: quod si alteri parti proximior sit, eorum est tantum, qui ab ea parte prope ripam praedia possident. (An island arising from the sea (a rare occurrence) belongs to the first claimant, for it is held to belong to no one. An island arising from a river (a frequent occurrence), if indeed it appears in the midstream of the river, is the common property of those who have holdings on either bank of the river, to the extent that those holdings follow the bank; but if it lies to one side of the river rather than the other, it belongs only to those who have holdings on that bank).

18

D.41.1.7.3 (Gaius 3 Cott.) insula quae in mare nascitur (quo raro accidit).

19

D.41.1.1.1 (Gaius 2 Cott.), as happened in the case of fish and animals taken at sea. Riccobono 1968, 569.

20

D.41.1.7.3 (Gaius 3 Cott.).

21

D.41.1.50 (Pompon. 6 ad Plaut.); D.43.8.3.1 (Celsus 39 Dig.).

22

G.2.40.

23

Kantor 2017, 63, quoting some sources as examples.

24

Plaut.Rud.970–990, referring to a fisherman that claims that a trunk caught by his nets belongs to him, just as the fish caught with that same net.

25

Rougé 1966b, 339–343; 398–402.

26

Purpura 2004b, 18, 25.

27

D.41.2.1.1. (Paul. 54 ad Ed.) See Romano 1960, 545–548.

28

Nörr 1984, 2957–2978.

29

D.41.1.58 (Iavolen. 11 ex Cass.), the Sabinian view is what persisted later, see: PS.2.31.27; Inst.2.1.47.

30

Plin.Ep.6.15; Orestano 1961, 261; Viarengo 1980, 35; Manthe 1982, extensively reviewed by Bona 1984, 401–461.

31

Both Riccobono 1896, 265–271; and Bonfante 1918, 327–335, think that in the archaic conception, what was thrown overboard was abandoned and the owner lost their rights over it. Similarly, Andrich 1904–1911, 1307. However, this conception would have been abandoned in classical law; see Romano 2002, 157.

32

Stein 1972, 28. Moreover, MacCormack 1969, 119–120, indicated that the Proculian jurist developed early rules to conceive of possession based on terms of animus, which was however sometimes contested by the Sabinian jurists.

33

D.41.2.21.1 (Iavolen. 7 ex Cass.); D.41.1.58 (Iavolen. 11 ex Cass.); D.41.7.7 (Iulian. 2 ex Minicio); D.14.2.8 (Iulian. 2 ex Minicio); D.41.1.9.8 (Gaius 2 Cott.); D.14.2.2.7 (Paul. 34 ad Ed.); D.47.2.43.11 (Ulpian. 41 ad Sab.).

34

D.41.7.2.1 (Paul. 54 ad Ed.); D.47.2.43.5 (Ulpian, 41 ad Sab.). Perhaps the Sabinian view can lead to abuse, when trying to avoid land tax. See: Daube 1961, 389.

35

Rougé 1966b, 336–343; Vacca 1984, 71–73.

36

Rhet.Her.1.2.19.

37

Cic.Inv.2.51.153.

38

Petron.Sat.114.

39

Hermog.Περὶ στάσεων.1.141; Fortunat.Ars.Rhet.1.16.

40

Marius Victorinus.Rhet.51.

41

Corbeil 2010, 72, who says that this case contains the same unreal coincidences and unlikely development also found in Sen.Cont.2.153–154.

42

Such as fish, who did not belong to anyone, see D.41.1.1.1 (Gaius 2 Cott.).

43

D.14.2.4.1 (Call 2 Quaest.); D.47.2.43.11 (Ulpian. 41 ad Sab.); D.47.2.43.8 (Ulpian. 41 ad Sab.); PS.2.7.3; or in Varro.Ling.5.126. Also, Purpura 2004–2005, 197, thinks that urinatores are attested in Aesch.Supp.407–409, in response to Nardi 1984. In addition, Livy. 14.10.3 describes how they were used, during the Macedonian war, to recover the treasures of Pella, which were thrown into the sea by Perseus of Macedonia to prevent them from falling into the hands of the Romans. Also, Maniscalco 1999, 145–156.

44

AE 1982.131; CIL VI 1872; CIL VI 29700; CIL VI 29702; CIL VI 40638; CIL XIV 303.

45

The first example is the Madrague de Giens, whose cargo was incomplete with part of it covered with seaweed, see: Tchernia, Pomey and Hesnard 1978, 97–110; Pomey 1982; Pomey and Gianfrotta 1997, 21–22; Tchernia 1988. Other examples (even if these are less impressive than the Madrague) are Saint-Gervais III and Laurons II; see: Liou 1980; Gassend, Liou and Ximenès 1984, 103–105.

46

Aubert 2020, 201–202.

47

It seems that the maximum dive depth in antiquity would have been between 27 and 36 metres. See: Ath.3.93; Ashburner 1909, and, Frost 1968, 182–183.

48

Votruba 2017, 9, quoting literature regarding this discussion.

49

D.41.213pr. (Ulpian. 72 ad Ed.).

50

Vacca 1984, 92–95.

51

See section 3.2.3.

52

In addition, one needs to bear in mind the different casuistic solutions depending on whether item was mancipi (e.g. an amphora) or nec mancipi (e.g. a slave); see: Vacca 2012, 21–22.

53

See title 14.2 from Justinian’s Digest and section 3.2.4. from this chapter.

54

Differently, García Garrido 1956, 274–291 differentiates among wild, tamed and domesticated, where ‘tamed’ constitutes an attribution of wild animals. Frier (1982–1983, 105) reminds us that the jurists did not use any specific term to refer to naturaly tamed animals, since mansuetur is used for wild animals which have been tamed. Also, Daube (1959, 64–65) ignores this point, what leads to confusion.

55

G.2.67 (= Inst.2.12–15); D.41.1.5.2 (Gaius 2 Cott.); D.41.1.5.5 (Gaius 2 Cott.).

56

Due to their wild nature, many animals are only tamed when shut in hives, cages or vivaria. See: D.41.2.3.14–15 (Paul. 54 ad Ed.).

57

G.2.68 (= Inst.2.16); Coll.12.7.10 described the diverging views of Proculus and Celsus on the ownership of wandering bees, Celsus’ opinion being the one followed later on by Paul (D.41.2.3.16 (Paul. 54 ad Ed.); D.47.2.6 (Paul. 9 ad Sab.)) and Ulpian (D.9.2.27.12 (Ulpian. 18 ad Ed.); D.10.2.8.1 (Ulpian. 19 ad Ed.)). For the discussion and motivation of these jurists on their reasonings, see Frier 1982–1983, 105–114.

58

D.41.1.5.6 (Gaius 2 Cott.); D.41.2.3.13 (Paul. 54 ad Ed.).

59

Lambertini 1984, 195.

60

García Garrido 1956, 284–285; Ibid. 196–197.

61

D.9.2.2.2 (Gaius 7 ad Ed. Prov.).

62

D.41.1.58 (Iavolen. 11 ex Cass.); D.41.2.21.1 (Iavolen. 7 ex Cass.).

63

Ibid.

64

D.47.9.3.5 (Ulpian. 56 ad Ed.); D.47.9.5 (Gaius 21 ad Ed. Prov.).

65

Frier 1982–1983, 113. Especial importance is given to cattle, being res mancipi. See García Garrido 1956, 282, with references.

66

Vacca 1984, 81, n.91.

67

D.41.2.21.1 (Iavolen. 7 ex Cass.); D.41.1.58 (Iavolen. 11 ex Cass.); D.41.7.7 (Iulian. 2 ex Minicio); D.14.2.8 (Iulian. 2 ex Minicio); D.41.1.9.8 (Gaius 2 Cott.); D.14.2.2.7 (Paul. 34 ad Ed.); D.47.2.43.11 (Ulpian. 41 ad Sab.).

68

D.41.1.5.1 (Gaius 2 Cott.); D.41.2.3.2 (Paul. 54 ad Ed.).

69

D.41.1.3.2 (Gaius 2 Cott.).

70

D.1.8.4pr.–1 (Marcian. 3 Inst.). See also sections 3.1. and 3.3.1.

71

Hughes 1974, 189, who thinks that the only analogy drawn here by the jurist with the goods lost in a wreck is due to the availability of the action in factum.

72

D.4.9.1pr. (Ulpian. 14 ad Ed.).

73

D.4.9.3.1 (Ulpian. 14 ad Ed.).

74

D.19.5.1.1 (Papin. 8 Quaest.). See also Du Plessis 2012, 87.

75

D.14.2.1 (Paul. 2 Sent.); D.14.2.10.1 (Lab. 1 Pith a Paul. Epit.).

76

Curt. 5.9.4; Juv.12.33; Acts of the Apostles.27.18–19; D.14.2.2.2 (Paul. 34 ad Ed.); D.14.2.4.1 (Callistrat. 2 Quaest.); D.14.2.6 (Iulian. 86 Dig.).

77

Aubert 2020, 200. Bear in mind that the concept of insurance, meaning an amount paid in advance to someone to prevail in case an accident happens, did not exist in antiquity. Instead, there were other forms to provide warranties for risk, see: Silberschmidt 1926, 9–16; Huvelin 1929a, 95–100; Gaurier 2004, 129–132 (quoting Livy.Epit. 23.49 and 25.3); Damiani 2008, 64; García Vargas 2016, 121; Thomas 2009, 264–273.

78

Mataix Ferrándiz 2017a, 41–59, with literature explaining the development of the practice over time.

79

PS.2.71–75; Title 14.2 Justinian’s Digest.

80

Contrary to the view that it contained rules concerning the rule of the sea or sovereignty over it, or the possession of and dominion over the high seas, see: Rougé 1966b, 408–410.

81

D.14.2.1 (Paul. 2 Sent.) Lege Rodia [Rhodia] cavetur, ut si levandae navis gratia iactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est (The Rhodian law provides that if cargo has been jettisoned in order to lighten a ship, the sacrifice for the common good must be made good by common contribution).

82

Marcou 1995, 609–639; Purpura 2002, 280; 2013, 16–17; Ruggiero 2010, 425–426.

83

Badoud 2014, 451–452. Also, Aubert 2020, 199 provides the recent reading by Badoud and mentions a forthcoming volumen on the Lex Rhodia.

84

Du Plessis 2012, 22–23.

85

D.14.2.8 (Paul. 34 ad Ed.); D.41.7.7 (Iulian. 2 ex Minicio).

86

Liebs 2004a, 112, who also dated Gaius’ rerum cottidianarum books at 166 CE. However, the authorship of this work has been disputed by the scholarship, with many authors indicating that it was written after Gaius’ death, see: Martini 2012, 173–175, with extensive literature.

87

Plaut.Rud.955–965, see also, Charbonnel 1995, 309–322.

88

For a general overview of this subject, see Broggini 1966, 159; 167, who mostly discusses statute law, but also indicated that the edicts covered future events. Exceptions to this principle are given by Cicero (Verr.2.1.42), but only apply to criminal cases with evil intent.

89

Vacca 1984, 119; 155.

90

See chapter two, section 2.1.

91

D.48.6.5.1 (Marcian. 14 Inst.), also D.5.1.37 (Callistrat. 5 Cogn.) refers to that rescript but attributes it to Hadrian. According to Bonini 1964, 108, an attribution to Marcian seems more plausible.

92

See chapter two, section 2.2.2.

93

Some more details on this text will be provided in chapter five, section 5.2. See also, Manfredini 1984, 2211–2225.

94

Suet.Claud.18.2.1–9.

95

Sen.Brev.Vit.18.5; Suet.Claud.19; 26.5; 31; 39.1; Cass.Dio.59.17.2; Joseph.AJ.19.6; Aur. Vict. Caesar.4.3. Garnsey 1988, 221.

96

Sirks 1980, 283–294.

97

As manifested in the inscriptions of the Dressel 20 Baetican oil amphorae, see Broekaert 2008, 212; and Mataix Ferrándiz 2022(a).

98

Ferrarini 1963; Solazzi 1939, 254; Purpura 1976, 72. One imaginative paper published some years ago interpreted this measure as reflecting the will of Caracalla to protect the shipwrecked, because he had also suffered a shipwreck himself, even if there is no real proof of that; see Pinzone 1982, 67.

99

Fortunat.Ars.Rhet.1.13. Quae est simplex definitio? Cum unam rem simpliciter definimus ut: naufragia ad publicanos pertineant. Cuiusdam naufragae corpus cum ornamentis ad litus expulsum harena obrutum est, id publicani eruerunt.

100

Solazzi 1939, 254–255, who thinks that the abuses of the publicani may have forced Caracalla to use that sentimental tone in his rescript compiled in C.11.6.1 (Quod enim ius habet fiscus in aliena calamitate, ut de re tan luctuosa compendium sectetur?).

101

Rougé 1966b, 340. See also chapter five, section 5.2.4 and Mataix Ferrándiz, 2022(b).

102

These texts with a translation can be found in the appendix.

103

Honoré 1962c, 216; Puliatti 1992, 23–27.

104

D.41.1.14pr. (Nerat. 5 Membr.).

105

This is along the same lines as § 3.3 of the title de naufragio.

106

Honoré 1962c, 216; Puliatti 1992, 23–27.

107

A later fragment compiled in C.11.6.2 (372 CE) indicates that in cases where someone has suffered a wreck, the local magistrate will go near where the event happened and gather testimonials to bring these to the local authorities and speed up the process.

108

e.g. PS.5.22.1; PS.5.25.10; D.47.11.10 (Ulpian. 9 de Off. Proc.); D.48.8.1.5 (Marcian. 14 Inst.); D.48.8.3.5 (Marcian. 14 Inst.). See also: Santalucia 1989, 255.

109

On the honestioreshumiliores dichotomy, see Cardascia 1950, 305–307; Garnsey 1970, 163–164; Alföldy 1984, 146–162; Rilinger 1988, 46–70; Balzarini 1988; Höbenreich 2000, 241–253.

110

See D.48.5.39.8 (Papin. 36 Quaest.); D.48.10.15.3 (Callistrat. 1 Quaest.); PS.5.25.2; 5.4.10, and Rilinger 1988, 13–20; Höbenreich 2000, 243; Pugliese 1982, 767–780.

111

Mataix Ferrándiz 2017b, 47–54; e.g. Apul.Apol.34.2; Mart.Epig.1.103.5.

112

Because the transitive verb dabis needs to be completed by an accusative, which was then the function of liberos. The conclusion will be that praeda will be qualified with the adjective sordidiores (bearing in mind that the writer has committed the mistake of not coordinating plurals and singulars or anacoluthon), and completed by the verb to be, so erunt. Together with that, the differentiation in the text lies in the quality of the goods stolen, is they were of high value (gravior), or in the contrary, if they were broken or dirty (sordidiores).

113

Marotta 1988, 216; furthermore, the terminology used to define social orders was not stable, and therefore the distinction between free and enslaved would be generally applicable, see: Bauman 2002, 128; however, De Robertis 1939b, indicates that the terminology became stable in the Severan period, and the fragment D.48.19.10pr. (Macer 2 de Iud. Publ.) indicates that the penalties are the same for slaves and humiliores.

114

Albanese 1956, 87–89; 1958. Indeed, the typical definition by Paul summarizes the delict as ‘the removal of something with theftful intent and aiming to obtain a gain’, see D.47.2.1.3 (Paul. 39 ad Ed.).

115

G.4.37, see chapter two, section 2.1.2.

116

Vacca 1972, 145–148.

117

Dirksen 1824, 592; Gulli 1880; Mommsen 1899, 381; Karlowa 1901, 409; Ferrini 1904, 228; Brasiello 1939; Albanese 1953, 42; Vacca 1965, 545; 1972, 77; Balzarini 1969b, 395; Fenocchio 2008, 192.

118

See chapter one, section 1.3; and chapter two, section 2.3.1.

119

Honoré 1962a, 67–68.

120

D.48.7.1.2 (Marcian. 14 Inst.).

121

Martini 1969, 43–48; Guarino 1969, 154–171.

122

Tarwacka 2009a, 111–112.

123

See chapter one, section 1.3.1, and Vacca 1965, 545.

124

e.g. D.44.7.34.2 (Paul. de Conc. Act.); D.47.2.14.1 (Ulpian. 29 ad Sab.)

125

Vacca 1972, 104–105.

126

D.41.1.9.8 (Gaius 2 Cott.).

127

e.g. Pomponius Mela. In addition, Rohl 2012, surveys the literature on the topic.

128

Nicolet 1988, 12–14; Whittaker 2002, 83–90.

129

See also, Klingenberg 2004, 37–60.

130

Lévy 1996, 18.

131

Similar perceptions can be found in Ingold 2000, 7–9.

132

Thommen 2012, 79–84.

133

Cic.Nat.D.2.156–157.

134

Cic.Nat.D.2.98–104.

135

Cic.Nat.D.2.152. See also section 1.1.

136

Cic.Leg.3.3 (transl. Loeb.).

137

Werner Mayer 2005, 200; Marzano 2007, 21–27.

138

Purcell 1988, 191–203.

139

Lafon 2001, 122–123; Marzano 2007, 23–24. The research carried out on the underwater remains of villae maritimae demonstrate that many of these included structures built on the seafloor, underlining their powerful position on the sea. See: Stefanile 2015a; Stefanile and Pesando 2015; Petriaggi et al. 2020, 1199–209.

140

Such as the case of Lepidus Porcina, 125 BCE (Val.Max.8.1); Lucullus and Metellus (Varro.Rust.1.13.7; Cic.Leg.3.13.30); Cicero (Cic.Att.1.13; 12.36), Pompey (Cic.Mil.20.54); or Agrippa Postumus (Marzano 2007, 693). A representative location is Sperlonga, Lafon 1981, 297–353.

141

Suet.Aug.72.2; Marzano 2007, 269 (Nero); 276–277; 279; 383; 403; 457 (Sperlonga, Tiberio); 531 (Sextus Quintilius Condianus and Sextus Quintilius Valerius, both consuls in 151 CE); 681 (Albinus Caecina, member of the noble Caecina family from Volterra and praefectus Urbi in 415 CE.)

142

Rothe 2018, 42, ‘(the) very luxurious villae maritimae on the Bay of Naples had a basic common denominator: The Roman elite ideology of landedness (…)’.

143

Stat.Silv.2.2; esp. ll. 54–59.

144

Ingold 2000, 61.

145

See section 1.1.

146

Purcell 1995, 134.

147

D.41.2.3.14 (Paul. 54 ad Ed.); see also section 3.2.2.

148

Marzano 2013, 217–224.

149

Ibid. 202–212.

150

D.1.8.2pr. (Marcian. 3 Inst.); Thomas Fenn 1926, 466–481, the glossator’s interpretations of Roman texts argued that the Emperor had the power to govern the sea, reflecting the views of their time. Falcon 2016, 139, identifies this category as similar to res nullius, even if it is distinct from it.

151

Mommsen 1889, 131; Pernice 1900, 5; Sokolowski 1902, 43; Perozzi 1928, 598, Robbe 1979, 118–123; Arangio-Ruiz 1984, 171.

152

As were the ports and rivers, see. D.1.8.4.1 (Marcian. 3 Inst.).

153

Grosso 1941, 29–33; Branca 1941, 205–207; Scherillo 1945, 76–81; Dell’Oro 1963a, 287–290; Cortese 1964, 74; Fiorentini 2010, 44–48; Lambrini 2017, 112–115; Dursi 2017, 5–12, Schiavon 2019, 113–143. The impossibility of including this category in a system of immediate application explains why it was not included in the principal compilations; see Behrends 1992, 7.

154

D.47.10.13.7 (Ulpian. 57 ad Ed.); Dell’Oro 1963a, 274–275; 288–290.

155

On the relation with this fragment with ius Gentium, see section 2.1.1.

156

Some literary fragments refer to the particular nature of the sea, see: Plaut.Rud.4.3.35; 4.3.38; 4.3.42; Cic.QRosc.26; Ov.Met.6.349; 8.187; Verg.Aen.7.229; Sen.Ben.4.28. Even if Sini 2008, 2, underlines the importance of these sources to shape Marcian’s thought.

157

D.1.8.4pr. (Marcian. 3 Inst.), see also Thomas Fenn 1925, 716–717.

158

Russell 2016a, 25–40.

159

D.41.1.14pr. (Nerat. 5 Memb.).

160

e.g. D.18.1.51 (Paul. 21 ad Ed.).

161

Marzano 2013, 253, referring to D.47.10.13.7 (Ulpian. 57 ad Ed.); D.43.8.3pr. (Celsus 39 Dig.).

162

D.41.1.50 (Pompon. 6 Plaut.) vs. D.43.8.4 (Scaev. 5 Resp.).

163

Ibid.

164

D.43.8.4 (Scaev. 5 Resp.); D.43.13.1.7 (Ulpian. 68 ad Ed.).

165

CIL I2 593 = ILS 6085 = FIRA I2 num. 13.

166

D.43.8.2.1; D.43.12.1pr.; D.43.12.1.17; D.43.12.1.19–21; D.43.8.2.9; D.43.8.2.11, all fragments belonging to Ulpian’s book 68 on the praetorian edict, composed during the reign of Macrinus (Honoré 1982, 172.).

167

Russell 2016a, 32–41; see also, De Marco 2004, 83, 85, referring to the seashores as communis, because their use is not exclusive, but accessible to everyone. That is in line with D.50.16.17pr.–1 (Ulpian. 10 ad Ed.).

168

De Marco 2004, 87–88.

169

Purcell 1988, 193.

170

D.1.8.2.1 (Marcian. 3 Inst.); D.43.1.1.17 (Ulpian. 68 ad Ed.); Bannon 2010, 61.

171

D.43.8.2.1–2 (Ulpian. 68 ad Ed.); D.43.13.1.12 (Ulpian. 68 ad Ed.). In addition, there was the possibility of using an actio iniuriarum, but this opened the way to compensation for the harm done, not to restoration to the previous status, see: D.43.8.2.9 (Ulpian. 68 ad Ed.).

172

D.50.16.59pr. (Ulpian. 68 ad Ed.). More on this fragment in Mataix Ferrándiz 2023.

173

Lenel.Pal.2.811 § 1514.

174

This fragment may be related to D.43.12.1.16–17 (Ulpian. 68 ad Ed.), concerning the interdictal protection to prevent uncontrolled building on seashores and/or riverbanks.

175

Carayon 2017.

176

Impallomeni 1996, 594–595.

177

One clear example of the incongruence of Impallomeni’s assertion is the Imperial port of Rome, which combined both the Claudian and the Trajanic basins, built in different ways and designed to meet different aims. On the one hand, the Claudian basin would have offered protection from the waves, but little safety from wind (Tac.Ann.15.18), while the Trajanic basin offered a stable microclimate in which to moor, repair, and perform other activities related to imports and exports. See Keay 2012, 33–65.

178

D.43.12.1.13 (Ulpian. 68 ad Ed.). Some inscription witnesses the placement of these stationes in zones where a river and the sea are in contact, e.g.: AE 2007.01228 = AE 2009.01212. See also Coarelli 2019, 11–20.

179

Fiorentini 2003, 170–172, highlights that Ulpian’s texts link the statio to different spaces, such as seaports or river ports availing ships to stop there. Also, Luzzatto 1965b, 174, indicates that stationes were associated with navigation, and not with port procedures.

180

e.g. D.19.2.60.8 (Lab. 5 post. a Iavolen. Epit.); D.43.12.1pr. (Ulpian. 68 ad Ed.); D.43.12.1.17 (Ulpian. 68 ad Ed.), as for example happened in the case of Ephesos, (see: Cottier 2008, ll. II 26–28; § 10; 42–45, § 17); Gaul, in places such as Massalia, (see Hesnard and France 1995); Lugdunum (CIL XII 255) and Arles (CIL XII 717); or Egypt, (see Rossi 2015, 193–208.).

181

Juv.4.52–53 (After all, who would dare to put a fish like that on sale or to buy it, when even the beaches are crowded with spies? Right away, the ubiquitous inspectors of the seaweed would be tackling the naked oarsman. (…) If we believe Palfurius or Armillatus, anything in the entire ocean that is rare and fine belongs to the Imperial treasury, wherever it swims. So, the fish will become a gift, so it won’t go to waste.) (trans. Morton Braund).

182

Inst.2.1.2; D.1.8.4pr–1 (Marcian. 3 Inst.).

183

See for example the Lex Cauniorum de piscando (SEG XIV 638), or other sources referring to the gathering of taxes from the use of the facilities located where these activities take place, De Laet 1949, 206–210, 235–255; Purpura 2004a, offers a detailed list of references.

184

Marzano 2013, 266–267.

185

D.1.8.4pr.–1 (Marcian. 3 Inst.); D.1.8.4.2 (Gaius 2 Cott.). Some inscriptions belonging to the eastern part of the Mediterranean attested to customs due on the fish landed at the harbour and brought for sale in the urban market, and not a tax on fishing; see epistula Adriani de re piscatoria (IG II2 1103) and the Neronian inscription from Ephesos from I.Eph.Ia 20. Some examples of fishing ports are indicated in Ugolini 2020, esp. chapter two.

186

Ørsted 1998, 29; Marzano 2013, 252, 691.

187

Marzano 2013, 242, quoting different examples.

188

D.1.8.2.1 (Marcian. 3 Inst.); D.1.8.4.1 (Marcian. 3 Inst.), D.43.13.1.2 (Ulpian. 68 ad Ed.); Inst.2.1.2.

189

Chapter two, section 2.1.1.

190

Franciosi 1997; Masi Doria 2004, 202.

191

D.43.14.1.8 (Ulpian. 68 ad Ed.).

192

During Trajan’s reign, Neratius considered it to be public by nature, see: D.41.1.1.1 (Nerat. 5 Reg.); in the second century CE, Celsus and Gaius thought that the ownership of a riverbank was private, but its use was public: D.1.8.5 (Gaius 3 Cott.) and D.41.1.30.1 (Pompon. 34 ad Sab.). Finally, during the third century CE the riverbank seems to have become public, following the development of a more restrictive definition, see: D.43.12.1.5 (Ulpian. 68 ad Ed.); D.43.12.3.2 (Paul. 16 ad Sab.). See also Lonardi 2013, 31.

193

D.1.8.5 (Gaius 2 Cott.).

194

Fiorentini 2003, 256–259.

195

D.43.12.1.17 (Ulpian. 68 ad Ed.).

196

The engineering interventions in river spaces are a symbol of nature which has been tamed and improved by humans, as indicated in Cic.Nat.D.2.152, and Purcell 2017b, 159–164.

197

D.1.8.4pr. (Marcian. 3 Inst.).

198

D.43.12.1.2.3 (Ulpian. 68 ad Ed.).

199

De Marco 2004, 111–112; Arnaud 2012, 338–343; Campbell 2012, 200–244.

200

D.43.12.1pr (Ulpian. 68 ad Ed.).

201

Labruna 1971, 61, quoting D.43.12.1.15 (Ulpian. 68 ad Ed.) and 528. Also, D.43.20.1.13 (Ulpian. 70 ad Ed.) Labeo mentions a case about Hierapolis in Phrygia, attesting to the validity of the regulations concerning public water.

202

D.43.12.17 (Ulpian. 68 ad Ed.) (trans. Watson).

203

D.1.8.5pr. (Gaius 2 Cott.).

204

D.43.12.3pr. (Paul. 16 ad Sab.).

205

D.41.1.30.3 (Pompon. 34 ad Sab.), in a similar way, D.1.8.10 (Pompon. 6 ad Plaut.). The case may have been quite common, as it is referred in the records of Roman land surveyors, such as Ag.Urb.Cont.Agr.42.18–25.

206

Campbell 2012, 83–86, 98–100.

207

Dilke 1971, 115; Campbell 2000, 177, 197, 390; Guillaumin 2007, 109–110, 138, 143, 151.

208

Lonardi 2013, 32–47.

209

They oversaw cleaning the riverbed to ensure navigability. See, Lonardi 2013, 50–51.

210

Campbell 2017, 26.

211

The difference between them is that while the avulsion caused land displacement by the force of a river (D.41.1.7.2 Gaius 2 Cott.), alluvion consisted of the imperceptible accretion or deposit of soil on a person’s land through the flow of a river (D.41.1.7.1 Gaius 2 Cott.). For more details, Barra 1998, 5–35; Campbell 2012, 110–116, quotes different examples addressed by land surveyors while assessing landholders’ issues.

212

D.41.1.7.3 (Gaius 2 Cott.), and nuancing the case discussed in this text, see D.41.1.65 (Lab 6 Pith.).

213

Neratius Priscus was part of the council of Trajan and Hadrian, and it is believed that his books of responses were compiled after his death, and thus do not follow the original order in which they were written, according to: Scarano Ussani 1977, 137–138; 1979, 7–8; Syme 1957, 485; Greiner 1973, 22–35; Sixto 2004. However, apart from this fragment, there were two other fragments related to ratis vi fluminis in agrum alterius delata: D.10.4.5.4 (Ulpian. 24 ad Ed.); and D.39.2.9.3 (Ulpian. 53 ad Ed.). Contrary to the opinion of this fragment from book 39 of the Digest, it seems possible to deduce that § 8 was originally written by Neratius, seeing that even Ulpian indicated Neratius autem scribit.

214

Marrone 1957, 446–502; 2001, 187–188.

215

Nardi 1947, 393–415; Branca 1937, 250 n. 3.

216

See also D.39.2.9.3 (Ulpian. 53 ad Ed.).

217

Manfredini 1988, 377.

218

D.10.1.8pr. (Ulpian. 6 Opin.). On the role of surveyors in court, see Israelowich 2019, 15–16.

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