Chapter 5 Causing Intentional Harm at Sea

In: Shipwrecks, Legal Landscapes and Mediterranean Paradigms
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Emilia Mataix Ferrándiz
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We move now to the cases in which shipwrecking and its associated wrongs resulted from an intentional act by the offender. While terms such as contingent movement were considered in the previous chapter, in these cases the acts of intentional harm imply that the defendant acted with a specific intent that was the proximate cause of the plaintiff’s injuries. The topic of intentional harm has been briefly referred to previously, when discussing the scope and nature of the edictum de naufragio and the origins of this enactment.1 However, there are some aspects connected to this disposition and its associated behaviours that have not benefitted from a detailed study and thus will be addressed here. Therefore, the following sections will focus on the different fragments collated under the Digest’s title de naufragio which date after the enactment of the edict (first century CE) and reflect how different facets of intentional shipwrecking were addressed by later jurists.

5.1 Shipwrecking Far after the Enactment of the Edictum de Naufragio

As has been noted throughout this book, the edictum de naufragio was enacted in the first century BCE to punish robbery and other violent acts connected with shipwrecking. However, the influence of the edict and the behaviours it targeted did not stop with the end of the Republican period but continued through the Empire and even into late antiquity. Three fragments under the title de naufragio (§ 3.8, § 6, and § 10), as well as other texts compiled in the Digest, even if not under to that title, mention and address intentional shipwrecking.2

In addition, other fragments assembled in later codes witness the importance of legally addressing shipwrecks and managing their consequences.3 I have argued elsewhere about the role and importance of the transmission of the edictum de naufragio in the later Empire, and these sources will not be studied in this chapter.4 The next section will address some of these fragments and their features, underlining how this activity was still present in many Roman maritime landscapes, and the different ways in which intentional shipwrecking and its consequences could be avoided, fought against, or repaired.

5.1.1 Hubs of Violence in the Mediterranean and How to Legally Target Them

It is a well-known fact that the late Republic was a violent period,5 and in the case of seafaring, the results achieved by underwater archaeology have been interpreted as proof of the intensity of piracy during the first century BCE.6 The large number of shipwrecks corresponding to this period, together with the fact that many of them carried marks of violence on the keel or carried arms in their cargo, seem to support this generalised opinion.7 However, although archaeological evidence can indicate that a wrecked ship suffered a violent attack, it does not necessarily mean that these marks of violence correspond to a pirate assault.8

The Augustan propaganda,9 as well as the princeps’ creation of magistracies to survey the sea,10 convinced some scholars that shipwrecking and piracy were practically extinct during the Roman Empire, and especially during the Pax Augusta.11 For example, the wreck Cabrera D (1–15 CE) included helmets in its cargo, something that according to Parker could only be justified by the presence of soldiers on board and not the self defence of the crew, since this wreck dates to the Pax Augusta.12 However, there is no evidence to support this argument. Although seafaring and trade were safer during the Imperial period due to several factors,13 small-scale, opportunistic piracy persisted.14 In fact, Parker’s diagram shows how the number of shipwrecks dropped only very slightly in the first century, rather more so in the second century, and then sharply in the third century, with continued diminution in the fourth and fifth centuries.15 However, many epigraphical and literary sources demonstrate that piracy became a more serious problem during the third century crisis, forcing the Roman authorities to take extraordinary measures to suppress it.16 In sum, wreck remains are evidence of the violence prevailing at sea during the Imperial period, although it is not clear that the activities of pirates were the cause, and at least in the Mediterranean basin this violence should be mainly attributed to privateers.17 The situation was different in the outer seas (Black and Red),18 where pirates threatened the transport of profitable goods from southern Arabia and India,19 which is the reason why the Romans were forced to implement protective measures for these routes.20 This last aspect points to the link between violence and space: the avoidance of intentional shipwrecking (either by pirates or privateers) was necessarily connected to control over territories and routes.21 However, it is unlikely that the ideology of rule over land and sea extended to any practical attempt by the Roman Empire to regulate the use of the Mediterranean.22

It is possible to define two problems in relation to the repression of maritime violence in the provinces. The first one is connected to the limited resources available to Roman authorities,23 which meant that they acted to repress these events only on some occasions, perhaps only when Imperial interests were threatened, or an influential person made a complaint.24 When referring to ‘limited resources’, we need to think about two types in particular: on the one hand, legal assets, and on the other hand, the effective number of magistrates and other subjects available to police the diverse regions composing the Roman Empire. On this last point, it seems that the concomitant growth of police forces in some areas curbed but did not eliminate the incidences of violence.25

Concerning legal resources, it is necessary to go back to the famous text of D.14.2.9 (Vol. Maec. ex Lege Rhodia), in which Caracalla denied protection to a shipwrecked citizen called Eudaimon and directed his case to the competence of the Rhodian sea law.26 What this meant was that the emperor decided to limit his own jurisdiction over the sea, and that his decision was voluntary, with him choosing whether or not to respond to a query or hear a case.27 It needs to be highlighted that in all periods Roman society tolerated—even embraced—a high (by our standards) level of violence. Under the emperors, much violence came from the ruler himself and his representatives. In this case, by cherry-picking whether to investigate the case or not, the emperor or his delegates in the provinces left not only Eudaimon, but also many other citizens, unprotected from the violence they suffered at sea, even if the ideology predicated by the Imperial propaganda was rather different.28

In practice, Roman law was thought to have been imposed by Rome in an effort to civilise the many and varied subject communities of the Roman Empire who still practised shipwrecking. This, indeed, was an important tool—both ideological and practical—in the Imperial project, the method par excellence by which a degree of unification could be achieved.29 However, what cannot be forgotten when thinking about the Roman Empire is the historical imbrication of systems of conquest and control in the provinces.30 The nature and extent of Roman influence following the occupation of a territory needs to be understood not only forward in time, but also backwards.

That said, many provinces that became Roman had a long tradition of practising shipwrecking and piracy, which at some point was even strongly linked to the formation of their communal identity and power.31 In addition, since the formation of the Empire implied a progressive conquest, while some of the provinces that were taken by the Romans may have tried to eradicate piracy within their boundaries, other neighbouring areas might have just kept on committing raids and plundering32 these newly added Roman provinces.33 In these cases, many attacks would not have been carried out solely as a way of obtaining booty, but also as a defensive act against piracy committed by other groups against them.34 For example, Judea was widely known as an area where piracy was perpetrated before the Roman occupation of the province, as when Pompey attacked the area in 63 BCE.35 Culham indicates that piracy was an intrinsic element in Judea’s insurgency against Rome,36 while Roth argues that a wave of piracy preceded any revolt against the Romans in Judea.37 Even if such piracy did have an association with the insurgency, this activity existed before Pompey’s attack and persisted afterwards. Indeed, Josephus notes that piracy was a problem when Vespasianus was in the region of Judea in 68 CE, indicating that pirates seriously threatened the shipments of grain carried along the coast of Phoenicia and Syria.38 If pirates were still active in that region during the Roman Empire, this could mean either that they were not confronted by the local authorities strongly enough to eradicate them, or that this practice was strongly imbricated in the customs of the area, or perhaps both.

5.1.2 Some Cases in Point

Fragment 10 from the work de naufragio includes a text from Ulpian’s first book of opinions, which generally refers to provincial law and practices.39 It says the following:

D.47.9.10 (Ulpian. 1 Opin.) Ne piscatores nocte lumine ostenso fallant navigantes, quasi in portum aliquem delaturi, eoque modo in periculum naves et qui in eis sunt deducant sibique execrandam praedam parent, praesidis provinciae religiosa constantia efficiat. (The dutiful perseverance of the provincial governor shall ensure that fishermen do not deceive sailors at night, by displaying a light, as if they were being guided towards some port, thereby leading the ship and its passengers into danger, and obtaining for themselves a damnable prize).

The text describes how the surveillance of the provincial guards should help to prevent local fishermen from instigating wrecks40 by using lights to attract ships to the shore and wreck them there.41 The false-light technique described by Ulpian was also explained by Aelianus,42 who connects its practice to Euboea, a well-known pirate haunt in previous periods.43 It is difficult to assess whether Ulpian was specifically referring to this area, but it is an example of the diversity of maritime cultural landscapes that existed in the Roman world, some of which might still have considered those practices as a way of life even after incorporation into the Empire.44 We ought to consider that many of the towers built along provincial coasts were the shoreline terminal points of the local inland surveillance and control networks, not lighthouses or light towers built in an homogeneous way by the same authority.45 That said, since these signal posts could take different shapes, it is not surpising that fishermen could trick sailors into believing that the light they shone came from one of these towers. In addition to the service provided by such towers and lighthouses, signalling with fires was a practice commonly used in antiquity as an aid to navigation, which underlines how this wrecking practice could confuse seafarers.46

One question here would be whether Ulpian was referring specifically to fishermen, or whether he mentioned them as a way of suggesting that all people living on the shores were possible shipwreckers.47 Even if the traditional perception of fishermen was that they were poor (and many of them were),48 some evidence seems to suggest that at the apex of the Empire, many fishermen were not in such need that they had to wreck others to survive.49 However, the situation could have differed in different Mediterranean areas, and the fact that many regions based their economy on the land and not on the sea, could have forced many fishermen to opt for this as a way to survive.50 Plundering appears as a recurrent theme in Imperial literature,51 but fishermen could hardly be classified as pirates, as on most occasions they seem to have been more opportunistic scavengers than people ready to fight for the booty. Indeed, Petronius depicts the greediness of fishermen who, observing a wreck, rushed in their small boats to seize the plunder. However, when they saw that the ship still had people on board ready to defend their belongings, they changed their plans from plunder to rescue.52

Ulpian’s first book of opinions was for the most part devoted to establishing a meticulous description of the fundamental duties of the praeses provinciae,53 the individuals who judged these sorts of activities locally.54 The mention of religiosa constantia efficiat is reminiscent of the phrasing of other Imperial constitutions (concretely, mandata) from the Severan period.55 Through the mandata principis, the provincial governors were charged with the suppression of latrones, sacrilegii, plagiarii, and fures.56 However, these mandates were not limited to imparting the generic precept of keeping the province peaceful and calm, but also generally introduced some nuances about the jurisdictional and disciplinary activity of the praeses. That said, the classification of Imperial constitutions does not imply that the functions of these legal tools could be mixed. Actually, Cuiacius classified the fragment as a rescript, and indeed the text seems to correspond to one in which the emperor or a secretary acting in his name, was replying to a citizen indicating that the Imperial magistrates were taking care of the safety of navigation along provincial coasts, that were theatened by locals.57 At any rate, the fragment reflects a fragmented maritime cultural landscape, both legally and politically. On the one hand, there is the legal landscape where Roman authorities should act to prevent locals from wrecking ships or looting them, following the official rulings. On the other hand, there are the local maritime cultural landscapes, where these local practices survived as a common activity of fishermen and other plunderers.

Another way to avoid suffering the effects of a pirate attack or a wreck would be simply not to engage in a sea journey, or at least not to do so when one had responsibilities with respect to others. And even if shipwrecks or pirate attacks were considered as force majeure, there are sources that mention the possibility of anticipating an attack on a ship.58 Therefore, not paying attention to the possible risks could be interpreted as being the fault of someone who did not respect the due diligence of their obligations.59 This was the case described by Gaius in his ninth book on the provincial edict:

D.13.6.18pr. (Gaius 9 ad Ed. Prov.) Quod autem de latronibus et piratis et naufragio diximus, ita scilicet accipiemus, si in hoc commodata sit alicui res, ut eam rem peregre secum ferat: alioquin si cui ideo argentum commodaverim, quod is amicos ad cenam invitaturum se diceret, et id peregre secum portaverit, sine ulla dubitatione etiam piratarum et latronum et naufragii casum praestare debet. (What is said about robbers, pirates, and shipwreck is to be understood as applying only to the case in which something is lent to someone to take to distant places. Otherwise, if I lent to someone silver tableware, because he said that he had friends invited for dinner, and he took these on a sea trip, he would undoubtedly be liable also in the case of pirates, thieves, and shipwreck).

It was obviously Gaius’ intention to describe the limits and features of liability in a loan; and in that sense, he probably listed the cases of piracy and shipwreck so as to name situations of force majeure, when the responsibility of the borrower was in doubt. In such cases, the situation would be a casus mixtus, since the borrower would have put the loaned object at risk.60 However, Gaius was writing his book on the provincial edict, and was considered to have been living in the provinces himself.61 Perhaps his provincial context had an impact on his writing, underlining that shipwrecking and piracy were events that often happened in the provinces. Moreover, Gaius used the same example to reiterate the importance of taking due diligence when one is bound by an obligation, in this case, a loan.62 This text, as well as the following D.4.9.3.1 (Ulpian. 14 ad Ed.) could also be considered in the light of loss wrongfully caused, as highlighted in chapter four. However, these have been included in this section in order to highlight the dangers of piracy and wrecking practices still in force during the Roman Empire.

The jurists discussed numerous situations in which shipwrecks or pirates, considered as force majeure, influenced the extent of the liability of one of the parties in an agreement. Besides the abovementioned case, another well-known fragment is a text by Ulpian in which he refers to receptum nautarum:

D. 4.9.3.1 (Ulpian. 14 ad Ed.) […] at hoc edicto omnimodo qui receperit tenetur, etiam si sine culpa eius res periit vel damnum datum est, nisi si quid damno fatali contingit. Inde Labeo scribit, si quid naufragio aut per vim piratarum perierit, non esse iniquum exceptionem ei dari. (By this edict, one who receives property is liable in any circumstances, even if it is lost or the damage is caused without his fault, unless this happens through an unavoidable accident. Hence, Labeo writes that if anything is lost through shipwreck or an attack by pirates, it is not unfair that a defence be given to the carrier).

Receptum nautarum implied an agreement, added to the main contract of lease, by which a carrier assumed control of goods for transportation and safekeeping until they arrived at their destination. Thus, by virtue of the receptum nautarum, the carrier was liable for anything that happened to the cargo during transport, except in cases of pirate attack or shipwreck, as noted by Labeo (first century BCE).63 Therefore, this text gathers the findings of two jurists from different periods: On the one hand, Ulpian, from the Severan period, and on the other hand, Labeo, from the Augustan era (first century CE). They both indicate that, even considering the grounds of a praetorian edict where one is responsible for a cargo loaded onto a ship, one would not be liable in the case of a wreck or attack by pirates. We may wonder if they only quote these events as examples of force majeure, or as plausible hazards to be faced at sea. And in that sense, I should say that both elements could have influenced the jurists’ phrasing, since both were consistently present during the Roman Empire.

Another hypothesis about this text would be that before Labeo, a pirate attack may not have been considered as an exemption from liability because piracy was so widespread that it would have been antieconomic for the cargo owners to have to shoulder the burden of every pirate attack, and to avoid these would have been part of the expertise expected from a skilled carrier. In contrast, during the high Empire, piracy was supposed to have been a minor risk, mostly practised in the provinces. Thus, to suffer a pirate attack during that period would have been considered accidental or the product of the carrier’s bad luck.

The final fragment included in this section belongs to the Digest title corresponding to the Lex Rhodia on jettison, but which in fact is part of Paul’s commentary on the contract of lease:64

D.14.2.2.3 (Ulpian. 34 ad Ed.) Si navis a piratis redempta sit, Servius Ofilius Labeo omnes conferre debere aiunt: quod vero praedones abstulerint, eum perdere cuius fuerint, nec conferendum ei, qui suas merces redemerit. (If a ship is ransomed by pirates, both Servius Ofilius and Labeo indicate that everyone should contribute to this loss. But the owners must bear the loss of any property stolen by brigands, and anyone who ransoms his own goods has no claim to a contribution).

This is another text that includes the opinion of jurists from different periods: Paul (third century CE), Labeo (first century CE), and Servius and Ofilius (first century BCE). The mention of the dangers of shipwrecking in the texts of these three jurists is a sign of the practice’s persistence through the ages. In this passage, three cases are analysed: the attack of a ship from the hands of the pirates, the seizure of property, and the ransoming of goods by only one of the merchants involved, turning against their colleagues. These three cases are compared to the treatment of jettison, because the ratio legis of the fragment is the same, inquiring as to how the parties on a boat are would settle if one merchant suffered a loss to save all the others. In sum, according to the text the only way to establish a settlement is to act in the common interest.65

All things considered, there were different ways to avoid being shipwrecked, from defending oneself,66 to avoiding taking risks when undertaking an obligation. On top of that, there was (supposedly) an institutional framework that aimed at preventing and repressing these sorts of behaviours. However, this framework was often insufficient or inefficient, forcing people to find their own ways of avoiding such violent situations.67 In that sense, we need to think of a multi-layered maritime cultural landscape: on the one hand, there is the landscape depicted by the Imperial propaganda and the regulations in force, that is, the official landscape promoted by the Roman Empire where the peace was brought to the provinces and shipwrecking was banned. On the other hand, there was the landscape perceived by the people who were conquered and what they considered ‘law’ (in this case, referring to ius naufragii), which was rooted in their own customs and practices.68

5.2 Intentional Wreckage

The previous sections have introduced the topic of intentional harm by referring to shipwrecks caused by ill-intentioned privateers or pirates and their continued activity during the Roman Empire. This section will provide further insights into these types of misconducts, focusing on related topics such as boarding a ship and how to legally address this event. It will also focus on the legal qualification of ship wreckers during the Imperial age, which in turn reflects the social reality of the time when these events took place. In addition, the final part will address the converse of being shipwrecked by someone else, that is, wrecking one’s own ship.

5.2.1 Boarding and Taking a Ship (De Nave Expugnata)

The act of storming a ship with evil intention constitutes the typical scenario when describing a pirate attack.69 However, there is scarce archaeological evidence to document this practice, which sometimes can only be evinced indirectly. A possible example of evidence of an attack carried out against a vessel is the Kyrénia (310–300 BCE), a small boat which was found in the north of Cyprus, bearing spearheads embedded in the outer part of the keel.70 The armed conflict that characterised the time of the shipwreck (the wars among the diadochi) makes one wonder if the attack was carried out by pirates or privateers taking advantage of the situation. Aside from this case, the fact that other shipwrecks were carrying arms could perhaps suggest the need to protect the cargoes being transported against attacks, even if this is not the only possible justification.71 Another piece of indirect evidence could be the Digest’s reference to ‘people who are given a position of authority on a ship on account of security’ (ναυφύλακες).72 Unfortunately, not much is known about these individuals,73 who in Latin are called custodes navium (armed people in charge of protecting the cargo).74 It is possible to find mentions of people with the same role in the context of Indo-Roman trade.75

In the third century CE, Ulpian’s comment on the edictum de naufragio does not refer in any text to people protecting the ship, but when describing ‘storming’, seems to imply that the people on the ship could defend themselves and even steal from their assailants:76

D.47.9.3.1 (Ulpian. 56 ad Ed.) Deinde ait praetor ‘rate navi expugnata’. Expugnare videtur, qui in ipso quasi proelio et pugna adversus navem et ratem aliquid rapit, sive expugnet sive praedonibus expugnantibus rapiat. (Then the praetor says: ‘On a raft or ship taken by storm’. It would be regarded as storming if someone seized something in the actual battle or fight with the raft or ship, whether they themselves are an attacker or seized the thing from the pirates).

In this text, the Severan jurist indicates that the term refers to a person who steals things from ships, whether being the actual assailant or using the confusion while brigands are attacking. Ulpian’s description of expugnare regarding the edictum de naufragio is broader than what was conceived of in a later statute, the Lex Iulia de vi publica (between 19 and 16 BCE), as described in D.48.6.3.6 (Marcian. 14 Inst.).77 The fragment refers to those subjects who would expel the owner from their house, land, or ship, with the help of an armed gang. Marcian, who wrote this fragment after 217 CE, used the verbs deiecere (remove or throw away) and expugnare (assault, storm), only referring to the conduct of the assailants, but leaving aside the behaviour of the subjects who took advantage of the violence of the situation to steal. The latter is justified by the fact that Marcian was commenting on vis publica, which was labelled in legal terms as an active behaviour committed by armed subjects.78 Indeed, in another fragment corresponding to the same book of Marcian but this time referring to the Lex Iulia de vi privata, the jurist refers to shipwrecks but focuses on robbery:

D.48.7.1.1 (Marcian. 14 Inst.) Eadem poena adficiuntur, qui ad poenam legis Iuliae de vi privata rediguntur, et si quis ex naufragio dolo malo quid rapuerit. (The same penalty will be imposed on those who commit the behaviours assumed by the Lex Iulia de vi privatae, and on anyone who steals something from a shipwreck with evil intent).

Therefore, here we need to establish a chronological differentiation to understand what nave expugnata means in each fragment. The § 3.1 from the edictum de naufragio belongs to the Republican period and refers to a private delicta targeting theft, even if it was committed by a group.79 The sketch I have just given is based on the late Republican situation, but the facts change thereafter. The general trend of the Imperial period is that vis publica targeted acts against the state, such as riot and sedition, while vis privata involved non-political forms including gathering a mob or theft.80 Therefore, expugnare navis following the original text of the edictum de naufragio mostly refers to theft, and in the high Empire, the Lex Iulia de vi publica and privata offered alternative solutions for the cases of violent attack or theft. However, in the following § 3.2, Ulpian quotes Labeo (late first century BCE to early first century CE), and refers to theft after the attack has happened:

D.47.9.3.2 (Ulpian. 56 ad Ed.) Labeo scribit aequum fuisse, ut, sive de domo sive in villa expugnatis aliquid rapiatur, huic edicto locus sit: nec enim minus in mari quam in villa per latrunculos inquietamur vel infestari possumus (Labeo writes that it would be right that this edict should apply if something is seized from a town or country house which has been stormed; for both at sea and in a house, we can be disturbed or bothered by brigands).

Therefore, and echoing his laudatio edicti from § 1.1, the cases of theft related to the event of the storming of a ship were targeted by the edictum de naufragio in Labeo’s context (end of first century BCE–start of first century CE) but were addressed by a Lex de vi shortly thereafter (17 CE).81 More explicitly, § 6 from the title provides a direct definition of the matter of nave expugnata that concerns the damage committed to the ship, by saying:

D.47.9.6 (Callistrat. 1 Ed. Mon.) Expugnatur navis, cum spoliatur aut mergitur aut dissolvitur aut pertunditur aut funes eius praeciduntur aut vela conscinduntur aut ancorae involantur de mare (A ship is stormed when it is despoiled, sunk, broken up, perforated or its ropes are cut through or its sails are slashed, or its anchors seized up from the sea).

The fragment corresponds to the first book of Callistratus on the edictum monitorium, which is dated to around the end of the second century CE82 and consists of a summary of the provincial edict.83 The latter could be an indication that shipwrecking was more common in the provinces, but also that the edictum de naufragio may have been a provincial disposition, given the number of provisions related to the provinces and dealing with shipwrecks.84 The Callistratus fragment was commenting on vadimonia and according to Lenel, it refers to promises to appear in trials celebrated in front of recuperatores.85 I have previously referred to this kind of judges, who during the Republic were in charge of trials involving citizens and foreigners.86 The latter could obviously be one of the situations justifying Callistratus providing a definition of nave expugnata, since navigation generally involved people from different backgrounds, who could be unaware of the meaning of that term in Roman law.87 However, I wonder if when commenting on oaths, Callistratus was not only referring to the cases when a ship has been attacked and witnesses must appear in court to testify,88 but also to the cases when these witnesses could not appear in court because they suffered a shipwreck when their ship was stormed.89

In any case, Callistratus indicated that a ship was to be considered stormed when one or several of its elements were cut, perforated, broken up or seized. In his fragment, he specifically mentions parts without which navigation could not be performed (sail, ropes, anchors). It is uncertain if he was referring to these elements using the technical language employed by jurists such as Labeo,90 Iavolenus91 or Paul,92 who differentiated between partes, membra and instrumentum from the ship. The first terms (partes, membra) refer to elements identified as belonging to the ship because they constituted parts associated with the main structure (coniuncta), while the instrumenta are all of the elements serving a main object, in this case, the ship.93 However, the way that Callistratus mentions the parts seems to correspond to the notion of armamenta, which relates to the whole of the ship’s equipment, in a non-technical sense. This assertion is based on a reading of the fragment D.14.2.6 (Iulian. 86 Dig.), regarding the topic of jettison or general average.

D.14.2.6 (Iulian. 86 Dig.) Navis adversa tempestate depressa ictu fulminis deustis armamentis et arbore et antemna hipponem delata est ibique tumultuariis armamentis ad praesens comparatis ostiam navigavit et onus integrum pertulit: quaesitum est, an hi, quorum onus fuit, nautae pro damno conferre debeant. Respondit non debere: hic enim sumptus instruendae magis navis, quam conservandarum mercium gratia factus est. (A ship being driven by an adverse storm, and the rigging, the mast, and the sail having been destroyed by lightning, was taken to Hippo and provisional rigging was bought there; it sailed to Ostia and carried the load intact. It was asked, should those to whom the cargo belonged contribute to the sailor for the damage? He replied that they should not, because this expense was made more to assemble the ship than to preserve the goods).

The fragment reports a case in which a ship was hit by lightning during a storm and lost armamenta, mast and sail. The vessel was repaired in Africa (Hippo), with temporary equipment (tumultuariis armamentis) and finally reached Ostia with the load intact. This text has led some authors to think that the term armamenta, even if could be combined with the notion of instrumenta, in a practical way, using common language,94 to all of the elements of the ship that were necessary for navigation.95 The practical approach from Callistratus is not surprising, because the fragments from Labeo, Iavolenus, and Paul are commenting on legacies or sale contracts, legal operations for which the inventory of the parts from a ship is quite important.96 In contrast, Callistratus is describing an unfortunate event by which someone was prevented from performing a duty.

5.2.2 Land and Sea Banditry: Legal Analogies and Their Significance

When reading § 3.1 and § 3.2 from the title de naufragio, one should remark on the fact that these texts mention praedones and latrunculi. Both terms are used by the jurists to refer to groups that did not constitute proper enemies or hostes, and therefore it was impossible to officially declare a conflict against them according to wartime law.97 The word latro means a common criminal or robber, whereas the term praedo was generally used to refer to bandits, but often also had a narrower meaning and referred to pirates.98 The use of these concepts had legal connotations concerning the remedies that the Romans utilised to fight against piracy and banditry.

As has been indicated previously,99 the pirates’ abuses in the first century BCE led to Cicero’s famous quote in which he classified them as ‘enemies of all mankind’,100 and not enemies of only the Roman people.101 The use of the term ‘pirate’ by Cicero in his assertion is key to indicating the latent crisis of the moment and the connotation of the word. For example, the term ‘pirate’ is mentioned in the Lex Gabinia de piratis persequendis (100 BCE), but that law was set in a Greek context. Indeed, De Souza102 criticises Crawford’s103 translation of the Greek πειρατής to the Latin ‘pirate’, indicating that the word was first used in a Latin context by Cicero, and that the correct translation at that time would be praedo. Cicero’s qualification legally justified that combating pirates was an obligation of all countries, who could take the actions that they considered appropriate, even crossing borders and jurisdictions.104 The latter was especially needed because pirates did not limit themselves to brigandage on the seas.105 That, together with the need to consider the legal context surrounding these practices, justified the need to clarify the definition of piracy as ‘armed robbery involving the use of ships’.106

As has been indicated previously, the danger of piracy was reduced to a local level during the Empire (see section 5.1.1), and as a result, Roman law from that period made no distinction between piracy and robbers on the land.107 What does this change imply in terms of legal jurisdiction and the links established between violence and space? In the classical age, the whole world was Roman, so there was no point in maintaining the idea of the international prosecution of piracy.108 Notwithstanding that, brigands or praedones still committed violent acts at sea as well as on land,109 and the legal boundaries corresponding to the legal governance of the land via ius civile, in contrast with the sea as ruled by ius gentium, were supposedly still considered as such.110 Therefore, the problem here was crossing not the borders and frontiers of non-Roman lands, but the borders that constituted the seas regarding the civil law of the Romans. An example of these legal boundaries can be seen in the fragment D.14.2.9 (Vol. Maec. ex Lege Rhodia),111 in which Antoninus Pius restricted his jurisdiction over the sea, redirecting the matter to the governance of the Lex Rhodia.112 However, as has been rightly pointed out by Tuori, Antoninus’ Pius’ answer to the poor Eudaimon was a self-imposed restriction, and not a real legal and spatial limitation.113

That said, how can we read the issues concerning the lack of legal distinction between pirates and land robbers regarding the spatial boundaries of Roman law? These questions need to be understood in terms of the imperium of the Roman emperor and the Roman magistrates who acted on his behalf. For the case of the emperor, imperium, or more concretely, imperium maius, was not conceptualised as a territorial power per se, but rather referred to the influence (power) that it carried.114 As the Empire grew, Romanity and Roman rule ceased to be limited to Romans and their provinces and began to be replaced by ideas of a universal Empire, led by an all-powerful emperor.115 The Empire and its extent were based on the power of Rome, rather than any defined physical limit. The latter was well exemplified in the administrative topography of the Empire, with the custom house as a key symbol of control over land and sea through an activity which has been labelled as ‘taxing the sea’.116 Therefore, the space of politics was suddenly enlarged, so that official decisions could be effectively made wheresoever crime, or strife, was carried out.117

Going back to the points made in the first section of this chapter, an important element of Imperial ideology was the notion that Roman power guaranteed pax, which represented freedom from war and violent crime.118 As a consequence, it was commonly said that the princeps was responsible for the elimination of piracy and land-based brigandage,119 thanks to his universal authority in both civil and military affairs. In matters such as the sea, this authority could have been considered limited, given the different legal nature of the sea and considering the answer of Pius to Eudaimon. Even if the decision of the emperor in this case was self-imposed, we can understand that these limitations regarding the sea may have affected the decisions of the magistrates who had imperium but acted on behalf of the emperor.

Given that plundering was an ongoing activity during the Empire and considering the importance of the sea for the Empire’s functioning, these limitations were quite problematic. That being so, how could one provide a practical solution? One possible answer would be by removing legal boundaries through legal analogies. In that sense, when Ulpian referred to praedones and latrunculos in § 3.1 and § 3.2, he was extending the jurisdictional limits of the land to also encompass the sea. His could be understood as a very pragmatic (empirical)120 reading of the edict, adapted to the needs of his time. Moreover, Ulpian was not the first to use that analogy in a text regarding shipwrecks, as Callistratus, in § 7 of the title de naufragio, includes a rescript from Hadrian which applies that analogy:

D.47.9.7. (Callistrat. 2 Quaest.) Ne quid ex naufragiis diripiatur vel quis extraneus interveniat colligendis eis, multifariam prospectum est. Nam et divus Hadrianus edicto praecepit, ut hi, qui iuxta litora maris possident, scirent, si quando navis vel inficta vel fracta intra fines agri cuiusque fuerit, ne naufragia diripiant, in ipsos iudicia praesides his, qui res suas direptas queruntur, reddituros, ut quidquid probaverint ademptum sibi naufragio, id a possessoribus recipiant. De his autem, quos diripuisse probatum sit, praesidem ut de latronibus gravem sententiam dicere […] (A wide variety of provisions are brought so that nothing should be looted from wrecks or so that no third party should interfere with collecting them. For the deified Hadrian established in an edict that those holding property near the shore should know that if a ship is dashed against or broken up within the boundaries of their lands, they are not to despoil the wreck, or the governors will grant actions against them to those complaining that their property has been seized, so that if anything is proved to have been taken from the wreck, it may be recovered from the landholder. However, in the case of those proven to have looted, the governor is to inflict a grave penalty as on bandits) […].

The rescript was directed at the owners of coastal terrains. On the basis of this, people who lost their belongings and later found them and were able to provide evidence that they were stolen from a shipwreck could recover them from the possessors. At the same time, the governors pronounced severe sentences against those who were proven guilty of this as if against bandits, to be understood here as pirates.121 This rescript could be an example of the idealised conception of Hadrian as ‘the legal emperor’,122 who in this case was not only protecting the victims of a shipwreck, but also providing legal remedies that could be handled by any provincial magistrate.

While either compiling earlier Imperial decisions or commenting on previous edicts,123 Callistratus and Ulpian124 were jurists working on topics that revolve around Imperial law. So, by extending the jurisdictional limitations stemming from the ancient dichotomy ius gentiumius civile, they were probably basing this use of analogy on the concept of the Imperial legitimacy of the all-powerful emperor.125 In that way, any magistrate, or even the emperor, could apply the solutions provided by civil legal remedies such as the edictum de naufragio, avoiding the alleged boundaries existing between land and sea. The latter does not imply, however, that all issues found their solution thanks to the use of that analogy; unfortunately, the punishment capacity of the Roman Imperial authorities was still imperfect and limited.126 Notwithstanding that, these two fragments are good examples of the use of that analogy through Imperial adjudication and legal interpretation, but they are not the only ones. Another fragment from the same title de naufragio, to which the next section is dedicated, witnesses an earlier example of this practice.

5.2.3 Shipwrecking and Its Parallelisms with the Activities of Bandits, Murderers and Poisoners (De Sicariis et Veneficiis)

The title of this section is based on the second part of § 3.8 of the title de naufragio:

D.47.9.3.8 (Ulpian. 56 ad Ed.) […] Item alio senatus consulto cavetur eos, quorum fraude aut consilio naufragi suppressi per vim fuissent, ne navi vel ibi periclitantibus opitulentur, legis Corneliae, quae de sicariis lata est, poenis adficiendos: eos autem, qui quid ex miserrima naufragorum fortuna rapuissent lucrative fuissent dolo malo, in quantum edicto praetoris actio daretur, tantum et fisco dare debere. ([…] Likewise, another senatus consultum provides that those by whose malice or advice a wreck is caused, so that no help may reach the ship or those in peril thereon, shall be subject to the penalties ordained in the Lex Cornelia de sicariis; but those who seize anything through the miserable plight of the shipwrecked and are designedly enriched will also have to give to the Imperial treasury as much as the amount for which an action under the praetor’s edict will be taken against them).

The text refers to a senatus consultum (SC) of unknown date (probably from the Claudian era, like the previous SC quoted in the fragment),127 by which whoever caused a wreck would be punished by the penalties from the Lex Cornelia de sicariis.128 This lex was adopted at the request of Sulla in 81 BCE and established a quaestio perpetua to punish manslaughter in its different forms.129 Through legal interpretation,130 this SC condemned those who concealed a shipwreck as well as those who used violence against the shipwrecked to the same punishment as their equivalent land-based murderers.131 In addition, individuals that stole something from a shipwreck had to pay to the fiscus an amount based on the edictum de naufragio (during the first year a quarter of the value, and after that the whole value of the thing stolen).132

For his part, Manfredini questioned whether naufragi suppressi per vim fuissent in the fragment referred to the provocation of a wreck, or to the harm caused to the shipwrecked people.133 One of the reasons for his doubt is the fact that Mommsen vacillated between both versions when working on the manuscripts for the Digest’s editio maior, and therefore opted for abbreviating it to naufragi.134 In addition, Manfredini proposes that supprimere could mean to hide, and could refer to attacking a ship and kidnapping the people on board, and then hiding them in a prison or ergastula for later sale as slaves.135 However, this interpretation is not very convincing, since it seems to be based on the situation during the early Republic, when ius naufragii was still in use in several areas of the Mediterranean.136 Instead, several texts evidence that the probable interpretation of supprimere in this context was ‘to sink’:

D.48.8.3.4 (Marcian. 14 Inst.) Item is, cuius familia sciente eo apiscendae reciperandae possessionis causa arma sumpserit: item qui auctor seditionis fuerit: et qui naufragium suppresserit: et qui falsa indicia confessus fuerit confitendave curaverit, quo quis innocens circumveniretur: et qui hominem libidinis vel promercii causa castraverit, ex senatus consulto poena legis Corneliae punitur. (Again, he is liable whose familia, with his knowledge, takes up arms with the intention of acquiring or recovering possession; also, he who instigates a sedition; and he who conceals a shipwreck; and he who produces, or is responsible for the production of false evidence for the entrapment of an innocent person; again, anyone who castrates a man for lust or for gain is by SC subject to the penalty of the Lex Cornelia).

In this text, a SC governing issues related to shipwrecks is also quoted by Marcian, indicating that whoever sank a ship would be subject to the penalties of the Lex Cornelia. The Lex Cornelia’s punishment for the provocation of shipwrecks was included in both the libri basilicorum,137 and the Collatio.138 The latter highlights that Mommsen’s hesitations when working on the Digest were due to an error in the manuscript tradition, and that the original provision addressed the provocation of a shipwreck and not an attack on the shipwrecked. However, the possible result of causing a shipwreck and preventing help from reaching the vessel would have had an impact on both the ship and its passengers. Another argument would be that the fragment from the PS containing the text from the edictum de naufragio referred to supprimere.139 That inclusion indicated that the edictum de naufragio originally referred to supprimere naufragium (and not naufragos), and Ulpian, who is the only jurist to have devoted a comment to that edict, introduced in his comment a SC which punished the causing of a wreck.

With the enactment of the Lex Cornelia in 81 BCE, all forms of homicide committed by armed gangs gained a public status, meaning that these acts were punishable both privately and publicly. The latter could be considered as part of a broader trend towards a more powerful and centralised state during the late Republic and early Empire.140 Therefore, the extension of the penalties of the Lex Cornelia to cases involving wrecks reaffirmed that the behaviours included in the edictum de naufragio were punishable both privately and publicly.141 In addition, the Lex Cornelia, and the Leges Iuliae de vi142 were particularly directed at criminally organised gangs,143 which also meant that while the edictum de naufragio focused more on individual actions, via this SC it was also possible to prosecute groups of wreckers. The latter witnesses a transformation in private law executed by the likes of Imperial bureaucrats such as Ulpian.144 Finally, the Lex Cornelia, which originally addressed land-based criminals, was extending its reach to groups acting at sea, but against a ship, which in turn legally constituted an extension of the land. By establishing that analogy between sicariis, veneficiis and the plunderers, who could be labelled as pirates or praedones, this civil law was also extending its land-based limits towards the uncivilised, mighty sea.

5.2.4 Fraudulent Wreckage

Claims of false wrecks can be found in all periods of history; the aim of this act of lying is essentially to obtain a profit from those who were subject to liability for the risk of the journey, that is, either insurance companies (in the modern period),145 private customers, or the state. One essential element required for such a deception to be fruitful was to claim that the ship had sunk in the open sea, because that way there could be no witnesses others than the crew, who presumably were party to the deception. In addition, the depth of the sea would ensure that no diver would be able to rescue the lost cargo.146

The first case of such a fraud is reported by Demosthenes, who indicates that the screech of the saw used by the captain to sink the boat caused a violent reaction by the passengers with a fatal outcome for the shipwrecker.147 It has not yet been possible to archaeologically identify an event of this kind, and it seems rather unlikely that experts would be able to distinguish between beams sawn before the shipwreck,148 and ones subsequently removed from already shipwrecked hulls.

Another fraud case for which we have information took place during the Second Punic War. This event was facilitated by the fact that the government assumed responsibility for the cargo carried, including via the sea, to ease the supply of food to Rome. Taking advantage of this, a group of publicani (contractors) decided to put small quantities of goods on small worthless ships, then sink them on the open sea, pick up the crews in boats kept ready for them, and falsely report the cargoes to have been many times more valuable than they were.149 In this case, the contractors benefitted from the complicated circumstances associated with the war against Hannibal, which had made it so that the Senate could not really function without their support.150

Several centuries later, as Suetonius tells us, Emperor Claudius experienced hard times of famine, so he encouraged the maritime transport of grain to Rome, as well as granting privileges for sailors and shipowners, and taking charge of the costs and responsibilities.151 Would that have been an opportunity for some to take advantage of the situation? Perhaps in relation to this event, one SC from Claudius’ era, compiled in D.47.9.3.8 says:

D.47.9.3.8 (Ulpian. 56 ad Ed.) Senatus consultum Claudianis temporibus factum est, ut, si quis ex naufragio clavos vel unum ex his abstulerit, omnium rerum nomine teneatur. (A senatus consultum was passed at the time of Claudius whereby, if someone should remove the nails from a wreck or, even only one of them, he would be liable with respect to all).

It seems to be excluded from the possible interpretations, if only due to the lack of supporting elements, that this resolution was connected to a judicial intervention from the Senate.152 Instead, the resolution in question may have arisen following an appeal to the ‘maximum extraordinary court’ of the moment, promoted—against a particularly severe sentence—by the author of the theft.153 This provision went so far as to foresee the prohibition of removing nails from the ship with fraudulent intent, perhaps to repress the practice of false shipwrecks. Probably the text was not referring to ordinary nails, but to the long-curved copper pins that held the keel together, and which are now well known through archaeological finds.154 From the text, it can be understood that someone removing one of these nails would be liable for the whole ship. I have argued elsewhere that the reason for this consideration by Ulpian is that the ship was legally considered as a whole entity,155 at least in relation to its essential parts (the hull, the sail, the kiln) and its fittings (rudders, mast, yard and sails).156 This conceptualisation responds, on the one hand, to the need to understand these objects formed by different elements as a single unit in order to enable legal solutions for the issues that may relate to them.157 On the other hand, and concretely so for the case of the ship, it could not accomplish its essential function if it was not for these different elements. Finally, it seems quite probable that by removing one key nail from the construction, the ship would sink. Therefore, the practical element of the event adds up to the legal reasoning when considering the ship as a whole unit.

A text from Vivianus (compiled by Ulpianus) mentioned earlier, refers to ‘people who deliberately sink merchant ships’ by piercing them (perforasset).158 In this case, it is difficult to say whether Ulpian was referring to the act of self-wrecking a ship, especially because the text seems to be paired with the previous § 23, which described the case of a mule that is overburdened, and so breaks one of its limbs.159 Therefore, Ulpian’s aim was to extend the penalties from the Lex Aquilia to cover situations that initially fell outside of its scope.160 Thus Ulpian compared overburdening a mule with the intentional perforation of the ship, because both behaviours would break those ‘bodies’. In sum, it is uncertain whether Ulpian when referring to this behaviour to establish a parallelism, was also thinking of a real event. However, it is true that he comments on the edictum de naufragio in book 56, as we have already seen, so perhaps there was some reference to reality in his text.

In the cases dealing with the public supply of food, or annona, an investigation (quaestio de naufragii) in the late Empire was meant to determine whether the loss was caused by weather conditions, by lack of diligence or expertise in navigation, or by fraud. The different particularities appear to be first described in title 13.9 of the Theodosian code, from which many texts were copied, modified, and adapted into title 11.6 of Iustinian’s code.161 These differences are partly because Theodosian’s title addresses transport carried out on behalf of the Roman state, while Iustinian’s title also refers to private individuals in some places.162 In addition, several fragments of title 5 of the Theodosian code (de naviculariis) also refer to frauds committed while transporting cargoes on behalf of the annona.163

These texts describe the process of proving and demonstrating that the wreck was caused by natural forces. Corresponding to the historical context of the fragments, the procedure followed was the cognitio extra ordinem. Several scholars have remarked on incoherencies among the fragments as to the time available for presenting the evidence to a judge, which seems to have been settled at two years.164 The investigation was led by the provincial governor from the area where the wreck took place, but the decision on the matter was then transferred, depending on the historical context, to the praetorian prefect,165 or the prefect of the annona.166 In the case that it was demonstrated that the shipwreck occurred due to natural causes, the carrier was to be exempt from compensating for the lost cargo, but the finding would not make up for the damage suffered by the ship.167 However, it seems that quite frequently the carriers actually caused the wrecks,168 taking advantage of the fact that the state was assuming the risk for the transport.169

From my point of view, these texts reflect the need to obtain a special rule for the cases of stellionatus (swindling), which did not have any specific penalty and therefore needed to be fixed extra ordinem.170 Even if it was not Ulpian’s aim to give an extensive list of the conducts targeted in this category (perhaps such a list was unnecessary and restrictive),171 the jurist actually mentions ‘in particular, a person who conceals merchandise can be charged with this offence’, which is indeed quite illustrative and fits with other similar topics addressed by the Severan jurist in that book.172 Concretely, the fragment D.47.11.6pr. addresses the problem of fraud committed by subjects working for the corn supply and refers to merces supprimunt.173 In his text, Ulpian indicates that this problem was addressed by Imperial constitutions and mandata; it seems to me that these may not have been efficient enough to control these behaviours, and that, therefore, later emperors needed to release further Imperial enactments to deal with these cases.

These texts highlight the importance of the documentation used for declaring what was actually loaded and unloaded, and in relation to that several texts talk about the corruption of provincial officers who committed fraud in these matters.174 Some fragments prescribe that the carrier should provide proof about the circumstances that could have caused damage to the cargo, a serious reduction of the expected load, or the jettisoning of part of the goods to avoid wreckage.175 The latter is justified because the carriers could say that they have jettisoned part of the load, and instead kept it somewhere in order to sell it at their expense. However, some fragments from an Imperial constitution compiled in 409 CE reflect the warranties provided by the Imperial constitutions for cases involving carriers working in the eastern part of the Empire and indicate that when their fault in a case of shipwreck was proven the negligence would be shared among the entire council of shipowners.176 In that way, these subjects would not aim to commit fraud, so as to avoid confrontation with their peers in the council.

In any case, when looking at all the examples quoted, it seems that fraudulent wrecks proliferated during critical moments in history, when the state was forced to accept liability for transport in order to encourage shipping. The latter provision made sense at the time, because if we look at contexts of private transport the liability could easily fall to the carrier, since it was based on what the parties agreed upon in a contract. Therefore, unless a cargo owner indicated that the liability would be completely his own, the carrier would be responsible for most of the risk during navigation. For example, the text of D.19.2.13.1 (Ulpian. 32 ad Ed.) indicates that cases of transhipping a cargo against the owner’s will, at an improper time, or by using a less suitable ship would all imply the fault of the carrier.177

1

See chapter two.

2

D.4.9.3.1 (Ulpian. 14 ad Ed.); D.13.6.8pr. (Gaius 9 ad Ed.Prov.); D.14.2.2.3 (Paul. 34 ad Ed.).

3

The titles C.11.6 and CTh.13.9 (de naufragiis).

4

Mataix Ferrándiz 2022(b).

5

See chapter one, section 1.3.1.

6

Parker 1992, fig. 3: Parker’s graph shows a progressive increase in the number of known wrecks from about 600 BCE to 200 BCE, followed by a rapid rise to a peak in the first century BCE. In addition, Candy 2020, 55–57, indicates that these shipwrecks could also attest to some limited economic growth at the time.

7

Lamboglia 1952, 131–236; 1957, 138–139; 1964, 258–266; Cavazutti 1997, 197–214; Beltrame 1999, 155–162; Gianfrotta 1981, 227–242; 2001, 212; 2013, 51–66; Parker 1992, 84, 196.

8

Arnaud 2016, 22. For example, Gianfrotta 2001, 213–214, mentions an anchor from a shipwreck in Manatea (Sicily) bearing the inscription MENA, indicating the name of the exercitor and suggesting that this ship was part of a fleet, and that it sank after encountering pirates. However, that is only his interpretation, and there is no real proof for this argument.

9

Augustus indeed claimed to have stopped piracy in the Mediterranean, proclaiming ‘I freed the sea of pirates’ (mare pacavi a praedonibus); see. CIL III.2.769 (= RG DA 25.1). However, the line alludes to his rival Sextus Pompey; see. Livy.Per.123; 127–128, and Fuhrmann 2012, 95 n. 23. Other sources that claim the benefits of the Pax Augusta are, Hor.Carm.4.5.17; Strab.3.25; Philo.Leg.146; Plin.HN.2.118; Prop.3.4.1; 3.4.11; 3.4.59; Suet.Aug.22.

10

Purpura 1985b, 106. However, roles such as the praefectus orae maritimae, in charge of surveying shores for pirate threats, existed since the Republican period. See: Barbieri 1941, 276–277; 1946, 176–177; Ozcáriz Gil 2014, 42.

11

Ormerod 1997, 257; Braund 1993, 106–107; Noy 2000, 142. More generally on Roman peace, Woolf 1993, 171–194.

12

Parker 1992, 84.

13

Especially the development of trade routes; see Rougé 1966b, 343. For a general view, see Wilson 2011, 33–39; 54.

14

De Souza 1999, 205–213. However, the boast had some merit: Piracy did not become a serious problem again until late antiquity: see Moschetti 1983, 873–910.

15

Parker 1992, fig. 3.

16

De Souza 1999, 218–224.

17

Amm.Marc.14.7.5; D.18.1.70 (Lic.Ruf. 8 Reg.); D.18.1.4 (Pompon. 9 ad Sab.); D.18.1.5 (Paul. 5 ad Sab.); D.18.1.6 (Pompon. 9 ad Sab.). De Souza 1999, 204–224.

18

Strab.11.2.12 (referring to the Heniochoi).

19

Gupta 2007, 37–51.

20

O.Krok.41; 68; 87; 88; Plin.HN.6.26.101; Philostr.V A. 3.35. De Souza 1999, 207.

21

Vlassopoulos and Xydopoulos 2015, 9. Also chapter one, section 1.2.

22

De Souza 1999, 205.

23

Epictetus (Disc.3.13.9) observed that Roman emperors could do nothing to prevent shipwrecks except to provide some protection and redress for merchants and travellers against the wreckers. Later on (400 CE), that seemed to be the situation for carriers being looted on their way to Rome to deliver goods for public supply; see CTh.13.5.29.

24

e.g. Millar 1981, 66–67; Hopwood 1983, 173; 182 n. 2; Braund 1993, 207; Nippel 1995, 100, 103, 113.

25

Kelly 2007, 158; Fuhrmann 2012, 49–52.

26

Already mentioned in chapter one, section 1.2. and chapter two, sections 2.1.1 and 2.2.2.

27

Tuori 2016, 108; 2018, 206; see also section 5.2.2 of this book.

28

Kelly 2007, 158; 172.

29

Czajkowski and Eckhardt 2018, 3.

30

Ando 2020b, 348–349.

31

e.g. Cilicia and Crete, see Brulé 1978; Shaw 1997, 199–233; Avidov 1997, 5–55. For the case of the Roman take-over of the Polemonid kingdom of Pontos in 63 CE, see Tac.Hist.3.47–48 and De Souza 1999, 208–209. On the relation between violence, citizenship and politically organised community, see: Shaw 2000, 361–403, 2004, 326–374; Benton 2011, 239–240; Ando 2020d, 1–3.

32

Purcell 1995, 134, indicated that certain places were so poor that their inhabitants were reduced to dependence on the sea, which could have favoured their inclination for piracy and plunder. See Dua 2017, 178. Also, Dio Chrys.Or.7.31., which refers to the practice of plundering as a privilege only reserved for the citizens inhabiting an area and not foreigners.

33

See the case of the Chauci, who carried out raids in Gaul in the first century CE (Tac.Ann.11.18).

34

The Frisians attacked ships belonging to the Usipi, crewed by men who had deserted the Roman army in Scotland in 83 CE and sailed across the North Sea to the German coast, Tac.Agr.28; Cass.Dio.56.20.

35

Bellemore 1999, 102.

36

Culham 2011; also, De Souza 1999, 209.

37

Roth 1991, 424–425.

38

Joseph.BJ.2.9.2; 2.12.1; 3.9.2; 3.414–417.

39

See also chapter two, section 2.2.1.

40

Fishermen wrecking ships appear in literature from different periods, such as Hom.Od.10.81–133 and Petron.Sat.114.

41

There was one fishing technique that implied the use of lit torches at night, and even if it is unclear whether Ulpian was specifically referring to that activity, we know that it was employed in the provinces. See, Plin.HN.9.33; Hom.Il.21.22–24; Hes.Sc.209–215; Oppian. Hal.5.425–447, and Gell.NA.2.8. See also, Martínez Maganto 1992, 228; Bekker-Nielsen 2005, 88; Beltrame 2007; Marzano 2013, 35.

42

Gell.NA.2.8.

43

Concerning Eubea, see: Hdt.7.13; Dio Chrys.Or.2.7; Strab.17.3.20; Dem.De Cor.18.241; all talk about an area called Yonnesus, located between Thessaly and Euboea; Aeschin.In Tim.2.72; Thuc.6.4.5; and Atalante was fortified to help guard Euboea (Thuc.2.69).

44

Duncan 2011, 267–289; provides a model on how to assess the impact of local culture on the landscape.

45

Christiansen 2014, 234; 2015, 68–69.

46

Corre 2004, 60, quoting the case of the Rhone river.

47

As these practices were attested in Eur.Hel.766–769; Eur.IA.198; Apollod.Epit.6.7–8.

48

Purcell 1995, 134; Mylona 2008, 67–74; Grainger 2021, 52, 54, 101–102. Some texts depict them as going from one villa to another, stealing fish from the vivaria of wealthy villa owners.

49

Corcoran 1963, 102; Marzano 2013, 39.

50

This phenomenon has been underlined for the case of Somali piracy by Dua 2017, 178: “to understand the transformation of fishermen into pirates requires an exploration of the long and complex interplay between sea and land and between fishing and pastoralis”.

51

Sen.Cont.1.6–7; 7.1; Dio Chrys.Or.7.31.

52

Petron.Sat.114.

53

In this case, the fragment concretely belongs to the title ‘de officio praetoris et praesidis’; see: Lenel.Pal.2, 1002.

54

Roselaar 2016, 130.

55

Santalucia 1971, 25, 143, referring to C.5.51.3; C.5.63.1 and C.7.58.4. Santalucia also believed that it corresponded to an Imperial constitution that has not been directly preserved.

56

Dell’Oro 1960, 162–163.

57

Cuiacius 1596, ad tit. VI lib. XXXVIII Digesti.

58

P.Laur.I 6; P.Köln.iii 147; Jakab 2008, 1–16; Alonso 2012, 47–53. Seasonality could also be a factor in avoiding pirate attacks, see Beresford 2012, 237–257.

59

See chapter four, section 4.1.

60

Tarwacka 2018, 307–308.

61

Mommsen 1887–1888, 221 thought that Gaius’ comment on the provincial edict was based on the edict of the province where he was living, which could have been proconsular Asia, according to Honoré 1962a, 79–90.

62

D.44.7.1.4 (Gaius 2 Aur.).

63

De Robertis 1952, 85–86; Ménager 1960, 385–411; Robaye 1987, 72.

64

Lenel. Pal 2. 1038–1039.

65

Aubert 2007, 163; Tarwacka 2019, 86–88.

66

Petron.Sat.114; Macrob.Sat.3.6.11.

67

A similar phenomenon occurred with the institutional failure to enforce contracts, which left traders on their own in finding ways to create trust and protect themselves. See Terpstra 2013; 2019.

68

Ferrarini 1963, 91, quoting examples from different historical contexts.

69

e.g. Heliod.Aeth.5.33.22–28. Otherwise, boarding without evil intent is described in D.9.2.29.2 and § 4 (Ulpian. 18 ad Ed.). See also chapter four, section 4.1.2.

70

Pomey and Gianfrotta 1997, 168–169; Katzev 2007, 286–299.

71

D.48.6.1 (Marcian. 14 Inst.) refers to ‘arms which are customary to travel by sea’.

72

D.4.9.1.3 (Ulpian. 14 ad Ed.).

73

Partly because the attention placed on this text has focused mainly on the mention of cheirembolon. For example, D’Ors 1948–1949, 254–259; De Marco 1999; Vélissaropoulos-Karakostas 2001, 209; Purpura 2014, 127–152.

74

Amm.Marc.15.2.2–3; Plin.HN.6.26.101; Polyb.2.4–5; Strab.89.5.2; Vélissaropoulos 1980, 82–86; Purpura 2014, 130.

75

De Romanis 1997, 104; Tomber 2008, 27.

76

As happened in the cases described in Petron.Sat.114 and Macrob.Sat.3.6.11.

77

Eadem lege tenetur, qui hominibus armatis possessorem domo agrove suo aut navi sua deiecerit expugnaverit. (Individuals who will attack or expel someone with armed men from their home, farm or ship will be punished by this statute).

78

Vacca 1965, 557; Longo 1970, 453 (also following the scope of the Lex Plautia); Tarwacka 2009a, 103.

79

This is similar to the case of the edictum de Lucullo from the same context. See chapter one, section 1.3 and table three from the appendix.

80

Riggsby 2016, 317–318.

81

See chapter two, section 2.3.1. On the Lex de vi, see Cloud 1988, 579–595; 1989, 427–465.

82

Bonini 1964, 16–20, indicates that these books could not be exactly dated. However, following Honoré 1962a, 202 and his theory on the work methods of the Severan jurists, this book was written before his book of quaestiones (written under Caracalla).

83

Kotz-Dobrž 1918, 227; Schulz 1946, 193–201; Martini 1969, 265–267; Puliatti 1992, 27.

84

See chapter two, section 2.2.1 and 2.2.2.

85

Lenel.Pal.1.94 n. 6.

86

Chapter two, section 2.3.2.

87

On the character of Callistratus’ definitions, see Martini 1966, 265–267 and Puliatti 1992, 27.

88

As happened with the inquiries concerning public supply and wrecks, see: CTh.13.9.1 (= C.11.6.2); CTh.13.9.4.1.

89

As mentioned in D.2.12.3pr. (Ulpian. 2 ad Ed.) and D.2.13.6.9 (Ulpian. 4 ad Ed.); see also chapter two, section 2.3.1.

90

D.33.7.29 (Lab. 1 Pith.).

91

D.50.16.242pr. (Iavolen. 2 ex Post. Labeo).

92

D.21.2.44 (Alfen. 2 Dig a Paul. Epit.).

93

Richichi 2001, 17–23.

94

Therefore, not referring to the technical juridical views about these elements. See Manara 1933, 385–392.

95

Dell’Oro 1963b, 134.

96

Grosso 1941, 374–383; Astolfi 1969, 60–75.

97

D.49.15.24 (Ulpian. 1 Inst.); Ortu 2012, 58.

98

Tarwacka 2009a, 19–20, quoting Plaut. Rud.40. Indeed, several legal texts seem to treat the terms as interchangeable; see, for example: D.49.15.24 (Ulpian. 1 Inst.) or D.50.16.112 (Pompon. 2 ad Q. Muc.).

99

See chapter one, section 1.3.

100

Cic.Off.3.107 ‘pirata non est ex perduellium numero definitus, sed communis hostis omnium’.

101

Which would have implied a series of procedures in terms of declaring war according to the ius fetialis, such as the iusiurandum as indicated in Cic.Off.3.108. See also, Catalano 1964, 373–383; Loreto 2001, 69–73; Bederman 2001, 55–57.

102

De Souza 1999, 111 n. 79.

103

Crawford 1996, 231–270.

104

Tarwacka 2009b, 68–72; 2012, 70; 73; 2018, 302, 309.

105

Plut.Pomp.24.

106

De Souza 1995, 180.

107

Vlassopoulos 2015, 9; Tarwacka 2018, 296.

108

This principle was interpreted differently by Grotius to help his own interests. See Grotius 2009, 26–27; Straumann 2015, 130–165; Tuori 2018, 214.

109

Sen.Cont.1.2.8; Flor.1.41.

110

D.1.8.4pr.–1; 1.8.2pr.–1 (Marcian. 3 Inst.).

111

See chapter two, section 2.1.1.

112

See De Robertis 1952, 164–174 and Marotta 1988, 74–77, on the expression κύριον εἶναι, which has, in other contexts as well, a significance that can provide the idea of a juridical authority. See also, Minale 2022.

113

Tuori 2018, 215.

114

See Richardson 1991, 2–9; 2010, 22–23; Ando 2020a, 108, referring to the freedom enjoyed by the subjects holding that imperium. There is a different discourse for the magistracies, for which their imperium was confined to spatial borders (e.g. Praefectus urbi to Rome, proconsul to a province).

115

Tuori 2016, 133–134; 216–217; 2018, 204.

116

Purcell 2017a, 329–333.

117

Ando 2019b, 175–176; 187–188.

118

Yannakopulos 2003, 875–878.

119

Kelly 2007, 158.

120

Honoré 1982, 96.

121

The punishment is also referred to in another text from Callistratus, see: D.48.19.28.15 (Callistrat. 6 Cogn.).

122

Tuori 2016, 239–240.

123

Generally, Roman jurists based their analogies on the use of precedents, see Ando 2015c, 114–115.

124

Honoré 1962a, 196.

125

On the extension of the limits of ius gentium, see Behrends 2006, 512–513.

126

See section 5.1.1.

127

Balzarini 1969a, 214 n. 85; Höbenreich 1988, 96 n. 74; Purpura 1995, 473; Giuffrè 1998, 57; Tarwacka 2009a, 107; Buongiorno 2010, 370, 422 n. 32.

128

See also D.48.6.3.5 and § 6 (Marcian. 14 Inst.).

129

D.48.8.1pr. (Marc 14 Inst.); Coll.1.3.1; Rotondi 1966, 356–357; Cloud 1969, 264–265; Ferrary 1996, 749–753.

130

Santalucia 1994, 124–126. Other examples of this practice are D.47.13.2 (Macer. 1 Publ. Iud.); D.48.7.6 (Modest. 8 Reg.); Coll.8.7.1.

131

Being a capital penalty such as death or deportatio, see: D.48.8.3.5 (Marcian. 14 Inst.).

132

D.47.9.1pr. (Ulpian. 56 ad Ed.).

133

Manfredini 1984, 2209–2225.

134

Mommsen 1868–1870, ad D.47.9.3.8 (Ulpian. 56 ad Ed.).

135

Manfredini 1984, 2220–2224.

136

Purpura 1985a, 303; 1995, 474–475.

137

Bas.53.3.25; 60.39.3.

138

Coll.12.5.1 (de naufragiis et incendiariis) [Incendiariis lex quidem cornelia aqua et igni interdici iussit, sed re varie sunt puniti. Nam qui data opera in civitate incendium fecerunt, si humillimo loco sunt, bestiis subici solent, si in aliquo gradu et Romae id fecerunt, si humillimo loco sunt, capite puniuntur: aut certe [2] [deportationis poena] adficiendi sunt qui haec comittunt. Sed eis qui non data opera incendium fecerint plerumque ignoscitur, nisi in lata et incauta neglegentia vel lascivia fuit].

139

PS.5.3.2.

140

Riggsby 2016, 317.

141

As mentioned by Ulpian in D.47.9.1.1 (Ulpian. 56 ad Ed.) and Bas.53.3.25.

142

D.47.8.2.1 (Marcian. 14 Inst.).

143

Cloud 1969, 258–286.

144

Palazzolo 1996, 297.

145

See for example, Cigna Property and Casualty Insurance Co. and Others v. Polaris Pictures Corp. and Others (9 CCA 1999); Eagle Star Insurance v. Games Video Co. [2004] 1 Lloyd’s Rep. 238 or AC W Sweden 19 Nov. 2004 matter Ö 1081–1104 (Vanessa), (2004) Sw. Mar.Cas. 25.

146

Ath.3.93; Ashburner 1909, iii.47; 37–38; Frost 1968, 128–129.

147

Dem.32.5–6.

148

Like the shipwreck of Villasimius in Sardinia (first century CE); Purpura 1995, 465.

149

Livy.Epit.25.3.10–11.

150

Livy. 25.3. Rosillo López 2014, 140, thinks that even if it is not mentioned explicitly by Livy, many senators had family members involved in these frauds.

151

Suet.Claud.18.2–19.1; Sirks 1980, 283–294; Broekaert 2008, 212–213.

152

Arcaria 1992, 139 and n. 4.

153

De Marini Avonzo 1957, 45; Broggini 1958, 252–255.

154

Gianfrotta and Pomey 1981, 236–245.

155

Mataix Ferrándiz 2015, 525–540. As happened with other elements considered as a whole unit, such as a flock, or a pile of grain, see: D.47.2.21pr. (Ulpian. 40 ad Sab.).

156

As was described in § 6 of the title de naufragio. These parts are differentiated from the complements, such as a small ship, see: D.21.2.44 (Alfen. 2 Dig. a Paul. Epit.).

157

Johnston 1999, 79–80, referring to the sale of generic goods, which also uses this principle of understanding them as a whole unit.

158

Chapter four, section 4.1.1, D.9.2.27.24 (Ulpian. 18 ad Ed.).

159

D.9.2.27.23 (Ulpian. 18 ad Ed.) Et si mulum plus iusto oneraverit et aliquid membri ruperit, Aquiliae locum fore (And he [Brutus] says that, if someone had loaded [oneraverit] a mule more than is right and broke [ruperit] one of its limbs, there will be place for the Aquilian [liability]) (trans. Spagnuolo 2020, 187, amended by author).

160

Spagnuolo 2020, 191–192.

161

CTh.13.9.3 (= C.116.2); CTh.13.9.3 (= C.11.6.3); CTh.13.9.4 (= C.11.6.4); CTh.13.9.6 (= C.11.6.5); CTh.13.5.32 (= C.11.6.6; C.11.2.4).

162

De Robertis 1937, 215; Solazzi 1939, 260; De Salvo 1992, 353. Therefore, § 2 and § 5 also refer to privateers, while § 3, § 4 and § 6 refer to state supply.

163

e.g. CTh.13.5.26; CTh.13.5.34.

164

Cuiacius 1840, at C.11.6.2, highlighted some incoherencies, later refuted by Manfredini 1986, 138–148 and Solazzi 1939, 258; De Salvo 1992, 356–357. It may have been one year to make the accusation from that date that the wreck happened, and one year more for the investigation.

165

CTh.13.9.1 (= C.11.6.2); CTh.13.9.4 (= C.11.6.4).

166

One fragment refers to the praefect of the annona of Africa in CTh.13.9.2 (372 CE); while later (397 CE), CTh. 13.9.5 mentions the praefecti annonae from Rome.

167

Solazzi 1939, 256; De Salvo 1992, 361–362.

168

CTh.13.9.1 (= C.11.6.2); CTh.13.9.3.1 (= C.11.6.3); CTh.13.5.32 (= C.11.6.6); CTh.13.9.4.1.

169

CTh.13.9.5.

170

D.47.20.3.2 (Ulpian. 8 de Off.Proc.); Mentxaka 1988, 306–313.

171

Harries 2007, 31–32.

172

D.47.20.3.3. (Ulpian. 8 de Off.Proc.) Qui merces suppressit, specialiter hoc crimine postulari potest. Mentxaka 1988, 312–313.

173

D.47.11.6pr. (Ulpian. 8 de Off. Proc.) Annonam adtemptare et vexare vel maxime dardanarii solent: quorum avaritiae obviam itum est tam mandatis quam constitutionibus. mandatis denique ita cavetur: “Praeterea debebis custodire, ne dardanarii ullius mercis sint, ne aut ab his, qui coemptas merces supprimunt, aut a locupletioribus, qui fructus suos aequis pretiis vendere nollent, dum minus uberes proventus exspectant, annona oneretur” … (In particular, forestallers and regraters, speculators generally, interfere with and disturb the corn supply, and their avarice is confronted both by Imperial instructions and by enactments. By Imperial instruction, it is provided: “You must further ensure that forestallers and regraters, speculators generally, indulge in no commerce and that the corn supply is not incommoded either by those who conceal what they have bought or by the wealthier who do not wish to sell their merchandise at a fair price because they anticipate that the next harvest will be less fruitful.”). See also Pollera 1991, 406–418.

174

CTh.13.5.38; C.11.2.5; CTh.13.5.29. See also Sirks 1998, 331; 341.

175

CTh.13.9.4; CTh.13.9.5.

176

CTh.13.5.2 (= C.11.2.4; C.11.6.6).

177

See also chapter four, section 4.1.2.

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