1 Introduction
In the year 211 the emperor Marcus Aurelius Antoninus, also known as Caracalla, had his brother and co-emperor Geta murdered by a group of centurions and thereby assumed full control over the Roman Empire. After Geta died, ostensibly crying in his mother’s arms, his death was followed by a massive purge of his supporters.1 This is just one of the atrocities attributed to Caracalla, who after this murder reigned the Empire as its sole emperor from 211 to 217 CE.2 Several contemporary literary authors, such as Cassius Dio and Herodian, describe his fickleness, cruelty, and inability to rule in colorful terms and relate his many excesses both on and off the battlefield.3 Based on these sources the British historian Edward Gibbon not surprisingly refers to Caracalla as the ‘common enemy of mankind’ in his monumental Decline and Fall of the Roman Empire. He writes:
But Caracalla was the common enemy of mankind. He left (AD 213) the capital (and he never returned to it) about a year after the murder of Geta. The rest of his reign was spent in the several provinces of the Empire, particularly those of the East, and every province was by turns the scene of his rapine and cruelty. (…) The most wealthy families were ruined by partial fines and confiscations, and the great body of his subjects oppressed by ingenious and aggravated taxes. In the midst of peace, and upon the slightest provocation, he issued his commands, at Alexandria in Egypt, for a general massacre.4
The conduct of Caracalla as an emperor as described by Dio and Herodian was in sharp contrast with that of his Antonine predecessors, who were already regarded in Antiquity as ‘good emperors’.5 It was also inconsistent with the style of government of his own father Septimius Severus (193–211), who – after coming to power by means of two brutal civil wars – placed himself in the Antonine tradition and managed the affairs of state in a seemingly conscientious way.6 Caracalla’s reign is therefore regularly considered as a break with (the Antonine) tradition and as the beginning of the crisis of the third century, not in the least because of Caracalla’s assumed reliance on the army as the most important basis of his power.7 By extension, his rule has also more than once been marked as a pivotal moment in Roman constitutional history and a break with the Roman legal tradition. Of course, a central aspect of this assumption is the promulgation of the Constitutio Antoniniana, which granted Roman citizenship to all inhabitants of the Empire.8 In this article, it will be argued that when it comes to the law, this is only one side of the story. By focusing on the traditional imperial legislative structures and in particular the imperial rescript practice, it will be demonstrated that Caracalla’s reign is (at least in some ways) characterized by a continuation of traditional legal and power structures.
2 Imperial Legislative Activity during the Reign of Caracalla
2.1 Structures of Imperial Legal Power during the Severan Era
By the end of the second century CE, the emperor had developed into the pinnacle of justice, the ultimate source of law and justice in the Roman Empire. The position is reflected by the legislative process during this period: the law was no longer created by popular assemblies or the senate (which had been the case during the Republic and the first century of the Principate), but relied for its development mainly on the emperor and his bureaucracy. The situation is summarized pointedly by the jurist Ulpian, who writes in his Institutiones: “Whatever the emperor decides, has force of law”.9 In practice, the legislative enactments of the emperor, constitutiones principis, could be issued in different forms, such as an edict (edictum), a judgment in a court case (decretum) or the answer to a legal petition (rescriptum).10 In particular the last category of constitutions, the rescripts of the emperor, had a profound impact on the Roman legal practice. Although rescripts were in principle nothing more than a legal opinion of the emperor in an individual case, they often contained authoritative interpretations of the law or even new legal rules. If formulated in a sufficiently general way, they could be regarded as binding precedents and as such are cited regularly by the Roman jurists in their works.11 Although we possess some rescripts of earlier emperors, the imperial rescript practice truly took flight under the Antonine emperors and was greatly expanded by Septimius Severus. For this period, it can be regarded as the most important legislative instrument of the emperor and therefore as one of the most significant expressions of imperial legal power.
2.2 Legislative Activity during the Reign of Caracalla
As a part of his monograph on the legislation of the Severan emperors, the French legal historian J-P. Coriat has brought together and counted all of the legislative enactments of Septimius Severus, Caracalla, Macrinus, Elagabalus and Alexander Severus.12 I have created the following table on the basis of his results:
The category ‘All enactments’ encompasses all types of imperial constitutiones, that is rescripts and other types of legislative measures such as imperial judgments and edicts. The second category contains only the number of rescripts issued during the reign of these emperors. What becomes abundantly clear from these numbers is that the reign of Caracalla is characterized by an unparalleled peak in legislative activity. The average number of surviving enactments per year is much lower for the reigns of Septimius Severus and Severus Alexander (32,3 and 34,6 respectively versus 55,5 for Caracalla).13 The same goes for the number of transmitted rescripts (24,9 and 34,3 for Severus and Alexander respectively versus 49,1 for Caracalla). These differences cannot be explained by arguments based on transmission: no particular reason comes to mind as to why the compilers of the Justinian Code (or the creators of the Gregorian code on which it is mainly based for these emperors) would have a predisposition to include legislative enactments by Caracalla, all the more since he probably already had the reputation of being a bad and fickle emperor in Late Antiquity.14 It seems therefore likely that these numbers can be taken at face value and signal an increase in legislative activity during his reign.
These numbers are surprising. The idea of Caracalla as an industrious legislator seems quite inconsistent with the way in which he and his reign are presented in literary sources. In general, bad emperors tend to be (depicted as) negligent and/or bad legislators and judges.15 For the Severan age, this point is illustrated by the numbers for the reign of Elagabalus, who is traditionally regarded as a bad emperor as well. Although he reigned for almost four years, only nine of his constitutions survive. This poses the question how the peak in imperial legal activity in the reign of Caracalla should be explained. The first thing that might come to mind is the promulgation of the Constitutio Antoniniana in 211 or 212 CE.16 Since this grant of citizenship meant that the circle of persons and number of transactions to which Roman law applied was greatly expanded, it might also account for an increase in the number of petitions concerning questions of Roman law filed at the imperial court. Indeed, J-P. Coriat has demonstrated that the number of rescripts for the year 213 is significantly higher than for the rest of Caracalla’s reign.17 However, if the peak in legislative activity was caused by an increased number of petitions due to the Constitutio Antoniniana, one would expect this number to remain more or less stable until at least the end of the Severan age, and in particular during the reign of Alexander Severus. The table above demonstrates that this is not the case: the numbers of the reign of Alexander Severus are more comparable to the reign of Septimius Severus than to the reign of Caracalla. Besides, the peak in the year 213 might also (partially) be explained by the fact that – in contrast to the rest of his reign – Caracalla was in Rome for most of 212 and perhaps also for a significant part of 213,18 which made him and his chancery possibly easier accessible for petitions from Rome and other parts of the Empire. There can therefore be no other conclusion than that Caracalla’s reign was characterized by significant legislative activity, resulting in not just a continuation but even an expansion of the imperial rescript practice. This finding alone seems to be in contradiction with the image of the bad and lazy emperor created by classical authors such as Dio, Herodian and the Historia Augusta.
3 Imperial Power and the fiscus: Caracalla’s Fiscal Legislation
3.1 Cassius Dio on Caracalla’s Financial (mal)Administration
Quantity surely does not equal quality. Indeed, Caracalla has been characterized in modern literature as the emperor most inclined of all third century emperors to derogate from existing law,19 for example when deciding on petitions of soldiers.20 To get a better idea of the material functioning of the rescript practice under Caracalla, one specific type of legislation will be discussed in more detail in this paper, namely the rescripts concerning the legal position of the imperial treasury (the fiscus). Dio treats this aspect of Caracalla’s rule extensively in his account of the reign of Caracalla. He mentions his financial maladministration, greediness and spendthrift several times in the Historia Romana and pays special attention to Caracalla’s measures to create and increase taxes in one specific passage:
τοὺς δὲ λοιποὺς πάντας ἀνθρώπους ἔργον εἶχε περιδύειν ἀποσυλᾶν ἐκτρύχειν, οὐχ ἥκιστα τοὺς συγκλητικούς. χωρὶς γὰρ τῶν στεφάνων τῶν χρυσῶν οὓς ὡς καὶ πολεµίους τινὰς ἀεὶ νικῶν πολλάκις ᾔτει (λέγω δὲ οὐκ αὐτὸ τοῦτο τὸ τῶν στεφάνων ποίηµα· πόσον γὰρ τοῦτό γέ ἐστιν ;ἀλλὰ τὸ τῶν χρηµάτων πλῆθος τῶν ἐπ᾿ ὀνόµατι αὐτοῦ διδοµένων, οἷς στεφανοῦν αἱ πόλεις τοὺς αὐτοκράτορας εἰώθασιν ),τῶν τε ἐπιτηδείων ἃ πολλὰ καὶ πανταχόθεν τὰ µὲν προῖκα τὰ δὲ καὶ προσαναλίσκοντες ἐσεπρασσόµεθα, ἃ πάντα ἐκεῖνος τοῖς στρατιώταις ἐχαρίζετο ἢ καὶ ἐκαπήλευεν, καὶ τῶν δώρων ἃ καὶ παρὰ τῶν ἰδιωτῶν τῶν πλουσίων καὶ παρὰ τῶν δήµων προσῄτει, τῶν τε τελῶν τῶν τε ἄλλων ἃ καινὰ προσκατέδειξεν, καὶ τοῦ τῆς δεκάτης ἣν ἀντὶ τῆς εἰκοστῆς ὑπέρ τε τῶν ἀπελευθερουµένων καὶ ὑπὲρ τῶν καταλειποµένων τισὶ κλήρων καὶ δωρεᾶς ἐποίησε πάσης, τάς τε διαδοχὰς καὶ τὰς ἀτελείας τὰς ἐπὶ τούτοις τὰς δεδοµένας τοῖς πάνυ προσήκουσι τῶν τελευτώντων καταλύσας (οὗ ἕνεκα καὶ Ῥωµαίους πάντας τοὺς ἐν τῇ ἀρχῇ αὐτοῦ, λόγῳ µὲν τιµῶν, ἔργῳ δὲ ὅπως πλείω αὐτῷ καὶ ἐκ τοῦ τοιούτου προσίῃ διὰ τὸ τοὺς ξένους τὰ πολλὰ αὐτῶν µὴ συντελεῖν, ἀπέδειξεν ).
but he made it his business to strip, despoil, and grind down all the rest of mankind, and the senators by no means least. In the first place, there were the gold crowns that he was repeatedly demanding, on the constant pretext that he had conquered some enemy or other; and I am not referring, either, to the actual manufacture of the crowns – for what does that amount to? – but to the vast amount of money constantly being given under that name by the cities for the customary “crowning”, as it is called, of the emperors. Then there were the provisions that we were required to furnish in great quantities on all occasions, and this without receiving any remuneration and sometimes actually at additional cost to ourselves – all of which supplies he either bestowed upon the soldiers or else peddled out; and there were the gifts which he demanded from the wealthy citizens and from the various communities; and the taxes, both the new ones which he promulgated and the ten per cent. tax that he instituted in place of the five per cent. tax applying to the emancipation of slaves, to bequests, and to all legacies; for he abolished the right of succession and exemption from taxes which had been granted in such cases to those who were closely related to the deceased. This was the reason why he made all the people in his empire Roman citizens; nominally he was honouring them, but his real purpose was to increase his revenues by this means, inasmuch as aliens did not have to pay most of these taxes.21
According to Dio, Caracalla not only forced wealthy citizens and communities to provide him with gifts and other provisions, but also created and increased several taxes. He demanded from many cities the aurum coronarium, an irregular form of taxation on communities levied by the emperor, traditionally on his accession and in honor of military victories.22 In addition, he increased the tax on the manumission of slaves (vicesima libertatis) and on inheritances and legacies (vicesima hereditatium) from 5 to 10% and he abolished tax exemptions with regard to the same inheritance tax.23 When creating this tax, Augustus had determined that ‘very near relatives or very poor persons’ would not be liable for this form of taxation.24 Especially the interpretation of the first category of ‘very near relatives’ has given rise to debate in the past. Nowadays there seems to be a general consensus that relatives of the first and second degree, sometimes referred to as the decem personae,25 were exempted from paying this tax until the Caracallan reforms.26 His measures were, however, not long-lived: according to Dio, Caracalla’s successor Macrinus – a jurist and a former advocatus fisci – rescinded all of them during his short rule.27 Dio famously places the promulgation of the Constitutio Antoniniana in the context of Caracalla’s avaricious tax reforms as well: according to the historiographer, the main reason for the extension of citizenship to all of the inhabitants of the Empire was to increase the tax base and thereby augment the revenues of the fiscus, even if Caracalla himself professed otherwise in his edict.28 One can wonder whether the picture painted by Dio of Caracalla’s attitude towards the fiscus and his focus on increasing its income is also reflected in the emperor’s answers on legal questions concerning the legal position of the imperial treasury.29
3.2 The Fiscal Rescripts of Caracalla
The Justinian Code contains 19 rescripts of Caracalla on fiscal matters, while five more rescripta are mentioned by the jurists in their works transmitted through the Digest.30 A relatively large number of these rescripts, seven in total, concern the statutory general charge of the fiscus, a security interest which came into force by operation of law on all of the property of fiscal debtors.31 When confronted with questions concerning the scope and legal effects of this charge, Caracalla seemingly tried to apply the normal legal rules concerning pledges and hypothecs to this relatively new form of security as much as possible.32 When he was asked, for example, about the legal status of goods sold by a fiscal debtor before he became indebted to the fiscus, Caracalla answered the following:
Imp. Antoninus A. Quinto. Si debitor, cuius fundum fuisse et ipse confiteris, prius eum distraxit, quam fisco aliquid debuit, inquietandum te non esse procurator meus cognoscet. Nam etsi postea debitor extitit, non ideo tamen ea, quae de dominio eius excesserunt, pignoris iure fisco potuerunt obligari. PP. III k. Iul. Laeto II et Cereale conss.
Emperor Antoninus to Quintus. If the debtor whose farm it was, as even you admit, has sold it [to you] before he owed anything to the fiscus, my procurator will find that you shall not be disturbed. For although he became its debtor subsequently, there is no reason why things that had passed from his ownership should have been subject to a charge of the fiscus. Given 29 June, in the consulship of Laetus, for the second time, and Cerealis (215).33
In short, like in the case of a private creditor,34 goods which had already been sold and transferred to third parties before the vendor became indebted to the fiscus were not subject to the fiscal charge.35 All of the other texts on this subject show a similar reluctance to award a special position to the fiscus with regard to its implied charge. This attitude towards the imperial treasury seems to have been a continuation of the policy of his father Septimius Severus, who showed a similar restraint in his legal decisions concerning the fiscal charge.36 The same attitude towards the imperial treasury can also be found in the other rescripts in cases concerning the fiscus, of which three will be discussed.
The first rescript deals with the possibility of the recall of gifts between husband and wife:
Imp. Antoninus A. Tryphaenae. Bona quondam mariti tui fiscus si nemine ei successore exsistente ut vacantia occupavit, donationes ab eo factae, si usque ad finem vitae in eadem voluntate permansit, revocari non possunt. PP. III Id. Ian. Duobus Aspris conss.
Emperor Antoninus to Tryphaena. If your deceased husband has no surviving heir and the fiscus has seized his estate as unclaimed property, the gifts made by him (to you) cannot be revoked, provided he did not change his mind before he died. Given 11 January, in the consulship of the two Aspers (212).37
In the case of C. 5.16.1 a husband had apparently made several gifts to the petitioner, his former wife Tryphaena, during their marriage. After his death his property had – in the absence of an heir – been claimed by the fiscus as bona vacantia. Subsequently, the officials of the fiscus had tried to revoke the gifts that the husband had made during his lifetime to his wife, since gifts between husband and wife were prohibited by Roman law.38 Any donatio between spouses was therefore null and void.39 As a consequence, the spouse who had made the gift remained the owner of the gifted goods and could reclaim the goods at any time. However, if the spouse did not revoke the gift during his or her lifetime, it was considered legally ratified on the basis of an oratio principis of Caracalla and Septimius Severus and a senatus consultum which followed it:40
Oratio autem imperatoris nostri de confirmandis donationibus non solum ad ea pertinet, quae nomine uxoris a viro comparata sunt, sed ad omnes donationes inter virum et uxorem factas, ut eo moriente qui donavit [ins. Mo.] et ipso iure res fiant eius cui donatae sunt et obligatio sit civilis et de Falcidia ubi possit locum habere tractandum sit: (…).
The oratio of our emperor on the confirmation of gifts applies not just to property obtained by a husband on his wife’s behalf but also to all gifts made between a husband and a wife. So that when the person who had made the gift dies, the property belongs to the person to whom it was given by operation of law and a [gift based] claim becomes binding under civil law and comes within the scope of the lex Falcidia where this is appropriate.41
If, however, the spouse had changed their mind during his or her lifetime, their heir could claim the gifted goods from the other spouse:
Sed ubi semel donatorem paenituit, etiam heredi revocandi potestatem tribuimus, si appareat defunctum evidenter revocasse voluntatem: quod si in obscuro sit, proclivior esse debet iudex ad comprobandam donationem.
But where the donor only changes his mind once, we allow his heir the competence of revocation if it is quite clear that the deceased changed his mind. But if there is any doubt, the judge should be more inclined to confirm the gift.42
Although the rescript of C. 5.16.1 does not mention the grounds for the claim of the fiscus, it is likely it had argued that the gifted goods could be recalled, since the husband had changed his mind at some point during his life. Alternatively, and much more speculatively, it is also possible that the officials of fiscus had argued that the rules created for private individuals by the oratio principis mentioned above did not apply to the fiscus. In any case, Tryphaena decided to petition the emperor on the question of the recall. In response to her petition Caracalla simply stated that the gifts could not be recalled by the fiscus if the husband had not changed his mind during his lifetime (donationes ab eo factae, si usque ad finem vitae in eadem voluntate permansit, revocari non possunt). In other words, the emperor applied the rules of existing (imperial) law on the subject, which at first sight only concerned private citizens, analogously and in full to the fiscus and refused to make any exception which might have benefitted his own treasury in this particular case.
The second example, C. 9.12.2, concerns a partial confiscation of property by the fiscus:
Imp. Antoninus A. Vero. Tutoris tui lege Iulia de vi privata damnati si tertia pars bonorum fisco vindicata est, tutelae actionem pro ea portione adversus fiscum dirige, modo si nulla praescriptio locum habeat. Nam successio oneribus portionis suae respondet. PP. XV k. Mart. Antonino A. IIII et Balbino conss.
Emperor Antoninus to Verus. If one-third of the estate of your tutor has been claimed by the fiscus after his condemnation under the lex Iulia de vi privata, raise an actio tutelae for that portion against the fiscus, provided no defense applies. For the successor is liable for the burdens of its portion. Given 15 February, in the consulship of Antoninus, for the fourth time, and Balbinus (213).43
We can reconstruct the facts leading to the petition as follows. A guardian had negligently administrated the property of his pupil, apparently named Verus, causing damage to the pupil’s estate. As a consequence, he was liable to pay damages, which the pupil could claim with the so-called actio tutelae (the action arising from guardianship).44 In addition, the same guardian was also condemned in a criminal trial on the basis of the lex Iulia de vi privata for some violent offence and as a result the fiscus had confiscated one third of his property (publicatio bonorum).45 Verus petitioned the emperor, asking whether he could bring an actio tutelae against the fiscus for the damages owed by his guardian. Caracalla answered that the pupil could sue the fiscus for a third of the damages, provided of course that no defense could be raised (for example if the guardian had been released from his debt by means of a settlement (exceptio pacti conventi) or on the basis of extinctive prescription). The emperor’s response gives rise to the question why the fiscus should be held accountable for (a part of) another person’s debt? Its answer can be found in the last sentence of the rescript: ‘nam successio oneribus portionis suae respondet’. The Romans traditionally reconstructed a confiscation by the state or the fiscus as a form of universal succession (successio universalis).46 This meant that the fiscus succeeded in all of the duties and rights concerning the property it had confiscated, just like an heir would have. Consequently, the position of the fiscus in this case could be compared to that of an heir appointed to a third of the estate. In this rescript Caracalla extrapolates this position to its extreme: just like heirs were liable for the debts of the deceased in proportion to their respective shares in the inheritance,47 so too could the fiscus be held liable for a third of the damages in this particular case.
The last example deals with the legal consequences of shipwreck:48
Imp. Antoninus A. Maximo. Si quando naufragio navis expulsa fuerit ad litus vel si quando reliquam terram attigerit, ad dominos pertineat: fiscus meus sese non interponat. Quod enim ius habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sectetur?
Emperor Antoninus to Maximus. If as a result of a shipwreck a ship is at any time thrown on to the shore, or touches land anywhere, it shall belong to the owners. My fiscus must not interpose itself. For what right has the fiscus in another’s calamity, that it gain a profit from so grievous a situation?49
In this rescript, Caracalla makes clear that the fiscus was not entitled to a ship (or presumably its cargo) which had washed ashore as a result of a shipwreck. It remained the property of its owner. This decision is seemingly completely in line with existing law on this subject, which can mainly be found in Title 47.9 of the Digest (De incendio ruina naufragio rate nave expugnata) and mostly deals with the protection of the interests of the owners of wrecked ships. To this end, the praetor awarded a right of action against anyone who pillaged a ship washed ashore, as can be read in the first text of this title:
Praetor ait: “In eum, qui ex incendio ruina naufragio rate nave expugnata quid rapuisse recepisse dolo malo damnive quid in his rebus dedisse dicetur: in quadruplum in anno, quo primum de ea re experiundi potestas fuerit, post annum in simplum iudicium dabo. Item in servum et in familiam iudicium dabo”.
The praetor says: “If a man be said to have looted or wrongfully received anything from a fire, a building that has collapsed, a wreck, or a stormed raft or ship or to have inflicted any loss on such things, I will give against him an action for fourfold in the year when proceedings could first be taken on the matter and, after the year, for the value. I will likewise give an action against a slave or household of slaves”.50
Ulpian calls this a measure of ‘evidens utilitas’ and ‘iustissima severitas’ in D. 47.9.1.1. It is therefore unsurprising that the praetor’s rules on the subject were not only confirmed, but also extended by later emperors. Hadrian, for example, stated in an edict that this action also applied to the owners of land along the seashore or the shores of rivers, if a ship landed on their property after a shipwreck.51 Following in the footsteps of his predecessors, Caracalla forbade the imperial treasury to intervene with a shipwreck as well and confirmed that the ownership of the owner of the ship remained intact.
3.3 The Fiscal Legislation of Carcalla Re-evaluated
On the basis the examples discussed above, we might make some observations on the legal content and value of the fiscal rescripts of Caracalla. First, these rescripts are not frivolous or capricious, but are seemingly based on sound legal reasoning and generally in accordance with existing law on the subject. Second, the rescripts do not award a special legal position to the fiscus with the goal of increasing its income. Indeed, all of them might even have some elements of imperial benevolence in them. In some of them, C. 5.6.1 and C. 11.6.1, the emperor actually seems to be restraining the shortsightedness and avarice of his own procurators by denying their claim against the wife or prohibiting them to intervene in a shipwreck respectively.52 With regard to C. 9.12.2 concerning the fiscus’ liability to the pupil, it should be stressed that the imperial treasury could in this period easily be considered as an actor in the domain of public law rather than an entity still governed strictly by the rules of private law, especially in its capacity of confiscating authority on the basis of a criminal verdict. This could and would justify a different approach when it came to its position towards the pupil in the dispute at hand. Caracalla’s advantageous decision concerning the pupil’s claim might therefore (partially) be inspired by the Severan tradition to protect the interests of minors as much as possible in their legal decisions.53 Finally, the rhetorical question ‘Quod enim ius habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sectetur?’ as a justification for the decision of C. 11.6.1 is clearly meant to demonstrate the emperor’s empathy for shipwreck victims.54 The Italian legal historian S. Solazzi even refers to Caracalla’s tone in this rescript as that of a preacher: ‘il tono del predicatore’.55
One might wonder whether rescripts transmitted through the Codex Justinianus give us an accurate picture of Caracalla’s legislative habits as a whole. After all, their inclusion in the Codex is the result of a careful selection process by its Byzantine compilers in the sixth century CE. It is to be expected that Justinian’s jurists would only select and include rescripts which were a part of (or at least in line with) the Roman law in force at the time, while frivolous, useless or plainly wrong rescripts would not have been incorporated by them. Consequently, one could argue that rescripta transmitted via the Codex only represent the ‘good’ share of Caracalla’s legislation, while all of the rescripts of lesser quality were excluded and have therefore perished. To a certain extent, this principle probably applies to the rescripts of all emperors, regardless of whether they were regarded as good or bad emperors. However, if we assume – in line with the picture painted by literary sources – that the bulk of Caracalla’s rescripts were of an inferior nature and accordingly not included in the Codex, this would mean that the established peak in legislative activity during his reign was, relative to the legislative activity of his predecessors and successors, unrealistically high. It is therefore more likely that at least a substantial share of his rescripts was of good quality, useful for legal practice, and for that reason worthy of inclusion in the sixth-century compilation of imperial Roman law.
4 Traditional Structures of Power and the Caracallan Rescript Practice
From the foregoing two main points concerning the reign of Caracalla can be inferred. First, the imperial chancery and in particular the imperial rescript practice, an important structure of power during the Severan period, not only continued to function as before, but actually flourished and expanded during the years of Caracalla’s rule. Second, the content of the promulgated rescripts generally seems to have followed along the lines of existing law. Of course, this paper has only focused on Caracalla’s fiscal rescripts and more research is therefore required to confirm this statement. However, based on Dio’s description of Caracalla’s financial mismanagement, one would especially expect Caracalla to derogate from existing law where his own fiscus was concerned. This, however, turns out not to be the case. Indeed, Caracalla does not seem to come across in these rescripts as the brutal, negligent and greedy emperor that Cassius Dio makes him out to be, but rather as a skilled, conscientious, and sometimes even benevolent ruler.
All of this of course gives rise to another question, namely to what extent was Caracalla actually involved in the process of drafting these rescripts? There still exists debate on the level of personal involvement of the emperors in the answering of legal petitions. Authors such as F. Millar and W. Williams argue that the emperors were closely involved in the drafting of rescripts and, in the case of W. Williams, even explicitly contend that Caracalla drew up his own edicts and rescripts.56 T. Honoré has put forward a different view.57 He argues that the rescripts of the emperors were usually drafted by the procurator a libellis. On the basis of a style analysis (which has not gone unchallenged), he contends that this post was probably occupied by the jurist Arrius Menander from 211 to 213.58 For the rest of Caracalla’s reign, the occupant of the position cannot be identified with any amount of certainty.59 T. Honoré’s idea of a more or less independently functioning bureau a libellis is supported by the fact that a considerable number of Caracalla’s rescripts were issued in Rome, while we know from other sources that the emperor was not in the city at that time.60 Still, not even T. Honoré argues that the bureau a libellis issued the imperial rescripts completely independently and that the emperor was not involved in the process at all: according to him, answers to most legal petitions were drafted by the a libellis and were subsequently read and confirmed by the emperor.61
If we are to believe Cassius Dio, Caracalla did not really care for the administration of the Empire, nor did he frequently sit as judge.62 Herodian has a slightly more positive account:
δικάζων µὲν σπανίως, πλὴν νοῆσαι τὸ κρινόµενον εὐθὺς ἦν εὐθίκτως τε πρὸς τὰ λεχθέντα ἀποκρίνασθαι .
He spent little time over legal cases but he was straightforward in his perception of an issue and quick to make a suitable judgement on the opinions expressed.63
All in all, the literary sources suggest that Caracalla did not regularly busy himself with hearing cases and was less interested in the administration of the Empire than his father and his Antonine predecessors. What this means for the authorship of the rescripts issued in his name and during his reign is unclear. Perhaps Caracalla was actually more involved in administrative matters than especially Dio would have liked to admit. At the same time, one could wonder whether the peak in legislative activity during the reign of Caracalla might actually be explained by the fact that in this period the emperor did not really concern himself with the issuing of rescripts on legal matters, giving way to the highly professionalized department a libellis to function in a more or less independent way?64 Or maybe there was someone else overseeing and driving the process, as is seemingly suggested by Dio, who relates that Caracalla had actually appointed his mother Julia Domna “to receive petitions and to have charge of his correspondence in both languages, except in very important cases”.65 Although the idea of the mother of the Emperor administering the legal business of the Empire entirely by herself might be stretching it too much, she could perhaps have functioned like a sort of gate keeper for Caracalla, determining which cases and petitions would be brought to his attention and which ones could be dealt with by the a libellis more or less independently.66
5 Conclusion
The study of the imperial rescript practice during the reign of Caracalla demonstrates that the image of this emperor painted by authors such as Cassius Dio is biased by senatorial prejudice and was at least to some extent prompted by rhetorical motives (vituperatio).67 There can be no doubt Caracalla’s style of government did not live up to the expectations of, at least part of the elite and that in that respect his reign was and could be perceived as a break with many imperial traditions. At the same time, important legal structures expressing imperial power, such as the rescript practice, continued to function as normal in this period. Caracalla’s reign is marked by a steady, indeed even increased flow of rescripts, while his (or the administration’s) answers are often of a high legal quality and continue on the legal paths which had been laid in the past. We can therefore conclude that from a legal point of view, this period is characterized by the continuation of traditional structures of power, which might be a reason to somewhat adjust our perception of the reign of Gibbon’s ‘common enemy of mankind’.
Death of Geta: Cass. Dio, 77(78).2.3–4; purge of his supporters: Cass. Dio, 77(78).3.4, Herod., 4.6, HA Car. 3.3–4.9. One of the famous victims of Caracalla was the eminent jurist and praefectus praetorio Aemilius Papinianus.
Besides the murder of his brother Caracalla is probably best known for massacring the populace of Alexandria in early 216 CE, cf. Herod., 4.9.
E.g. Cass. Dio, 77(78).6.1a, 77(78)10.2, Herod., 4.3, HA Car. 11.5.
E. Gibbon, The History of the Decline and Fall of the Roman Empire (Ware 1998), ch. 6.
They are for example referred to by Dio as ‘
E.g. Herod., 2.9.2, Cass. Dio, 76(77).17, HA Sev. 18.7. See on this subject more extensively E.S. Daalder, De rechtspraakverzamelingen van Julius Paulus. Recht en rechtvaardigheid in de rechterlijke beslissingen van Septimius Severus (The Hague 2018), 36–47 with references to other literature.
See for example I. Mennen, ‘The image of an emperor in trouble (legimitation and representation of power by Caracalla)’ in: J. Hahn, P. Funke & L. de Blois, eds., The Impact of Imperial Rome on Religions, Ritual and Religious Life in the Roman Empire. Proceedings of the Fifth Workshop of the International Network Impact of Empire (Roman Empire 200 B.C.–A.D. 476), Münster, June 30–July 4 (Leiden/Boston 2006), 260–261, who signals significant changes in the imagery of Caracalla after his father’s death such as focus on military images and very few references to the Antonines and the Severan dynasty. Also O.J. Hekster, Emperors and Ancestors. Roman Rulers and the Constraints of Tradition (Oxford 2015), 99–100. On Caracalla’s close relationship with the army, see for example Cass. Dio, 77(78).3.1–2; 77(78).9.1; 77(78).10.4; 77(78).24.1, Herod., 4.4.7–8; 4.7.4–7. Furthermore, in modern literature for example M. Handy, Die Severer und das Heer (Berlin 2009), esp. 105–110 and 128–141.
Cf. A. Imrie, The Antonine Constitution. An Edict for the Caracallan Empire (Leiden/Boston 2018), 1 (‘(…) fundamentally and irrevocably changed the constitutional nature of the Empire’) and C. Ando, Imperial Rome AD 193 to 284: The Critical Century (Edinburgh 2012), 76–99. On Caracalla and the Roman legal tradition in general, see also T. Honoré, Emperors and Lawyers (Oxford 1994, 2nd edition), 25–26 and Imrie, op. cit. (n. 8), 37–38.
D. 1.4.1 pr.: Quod principi placuit, legis habet vigorem.
D. 1.4.1, Gai., Inst. 1.5.
Cf. D. 47.12.3.5. If a rescript was not formulated in a sufficiently general way or contained a decision which clearly only pertained to the petitioner, the rescript would not transcend the individual case. See D. 1.4.1.2 and for example T. Mommsen, Römisches Staatsrecht (Leipzig 1887–1888), volume II.2, 911–912; P. Krüger, Geschichte der Quellen und Litteratur der römischen Rechts (München 1912), 108, K. Tuori, The Emperor of Law. The Emergence of Roman Imperial Adjudication (Oxford 2016), 283–284 and Honoré 1994, op. cit. (n. 8), 41.
J.-P. Coriat, Le Prince Législateur. La technique législative des Sévères et les méthodes de création du droit impérial a la fin du principat (Rome 1997), 113–157, esp. 129–130.
For the calculation of these averages, the following lengths of the reigns were used: Septimius Severus 214 months; Caracalla 74 months; Alexander Severus 156 months.
Cf. the passages from classical authors mentioned in op. cit. (n. 3).
On this, see for example Tuori 2016, op. cit. (n. 11), who distinguishes distinctive narratives of good and bad emperor-judges in the classical sources.
There exists a vast amount of modern literature on the Constitutio Antoniniana. The most recent monographs on the subject are Imrie 2018 (n. 8) and A. Besson, Constitutio Antoniniana. L’universalisation de la citoyenneté romaine au 3e siècle (Basel 2020). On the effects of the Constitutio Antoniniana (in antiquity and lates times), see C. Ando, ed., Citizenship and Empire in Europe 200–1900: The Antonine Constitution after 1800 Years (Stuttgart 2016).
Coriat 1997, op. cit. (n. 12), 146–150.
Cf. D. Kienast, W. Eck, and M. Heil, Römische Kaisertabelle (Darmstadt 2017, 6th ed.), 156 and H. Halfmann, Itinera principum. Geschichte und Typologie der Kaiserreisen im römischen Reich (Stuttgart 1986), 223 and 225.
Honoré 1994, op. cit. (n. 8), 25–26 and Imrie, op. cit. (n. 8), 37–38.
Cf. C. 1.18.1 and C. 5.16.2, mentioned as examples of Caracallan favour towards soldiers by Honoré 1994, op. cit. (n. 8), 25–26.
Cass. Dio, 77(78), 9, 2–5. Translations of literary texts have been derived from the Loeb Classical Library. Translations of legal texts are based on the translations of Watson et. al. (Digest) and Frier et. al. (Codex) (A. Watson et. al., The Digest of Justinian (Philadelphia 1998) & B.W. Frier et. al., The Codex of Justinian: a new annotated translation, with parallel Latin and Greek text based on a translation by Justice Fred H. Blume (Cambridge 2016)), but have been modified to some extent.
On this type of taxation, see F. Millar, The emperor in the Roman world (London 1992), 140–143.
This statement is confirmed with regard to the inheritance tax by Coll., 16.9.3.
Cass. Dio, 55.25.5: ‘
Cf. Coll., 16.9.2, I. 3,9,3 (pater, mater, avus, avia, filius, filia, nepos, neptis, frater and soror).
E.g. S. Günther, Vectigalia nervos esse rei publicae. Die indirekten Steuern in der römischen Kaiserzeit von Augustus bis Diokletian (Wiesbaden 2008), 42–46 and W. Eck, Die staatliche Organisation Italiens in der hohen Kaiserzeit (München 1979), 126.
Cass. Dio, 78(79).12.2.
Cf. P. Giss. 40, line 1–4, in which Caracalla mentions greatfulness and thanksgiving towards the gods as his main motivation. For a discussion of all possible reasons behind the promulgation of the Constitutio Antoniniana, see most recently Imrie 2018, op. cit. (n. 8) and Besson 2020, op. cit. (n. 16).
For another perspective on Caracalla’s fiscal measures including the Antonine constitution, see L. Eberle, ‘Fiscal semantics in the long second century. Citizenship, taxation, and the Constitutio Antoniniana’, in: C. Ando & M. Lavan, eds., Roman and local citizenship in the long second century CE (Oxford 2022), 92–99. She argues, in short, that Caracalla’s reforms should be regarded as part of a general Severan policy to let those who enjoyed the benefits of how taxes were spent pay for them as well.
Codex: C. 2.4.2, C. 2.8.1, C. 4.31.1, C. 4.46.1, C. 5.16.1, C. 5.41.1, C. 7.54.1, C. 7.73.1–4, C. 8.14.1–2, C. 8.18.2 pr., C. 9.12.2, C. 9.50.1 pr.-1, C. 9.51.2, C. 10.9.1, C. 11.6.1. Digest: D. 3.6.1.3, D. 40.5.12.2, D. 40.5.24.5, D. 49.14.13.7, D. 49.14.43.
C. 4.46.1, C. 7.73.2, C. 7.73.3, C. 7.73.4, C. 8.14.1, C. 8.14.2, C. 8.18.2 pr.
It is usually assumed that the statutory charge of the fiscus developed during the Severan age, see for example M. Kaser, Das römische Privatrecht. Das altrömische, das vorklassische und klassische Recht (München 1971), 466 and H. Wagner, Die Entwicklung der Legalhypotheken am Schuldnervermögen im römischen Recht (bis zur Zeit Diokletians) (Köln 1974), 92, 153 and 192.
C. 7.73.4.
Kaser 1971, op. cit. (n. 32), 464.
A similar decision by Caracalla together with Septimius Severus can be found in C. 10.1.1, which concerns a gift of goods to a third party instead of a sale.
Cf. E.S. Daalder, ‘The emperor Septimius Severus and the implied general pledge of the fiscus. A perspective from Paul’s Decreta and Imperiales Sententiae’, in: H.L.E. Verhagen & V. van Hoof, eds., Secured transaction in Roman law (Nijmegen: forthcoming).
C. 5.16.1.
For the background of this rule, see D. 24.1.1–3 pr. For its development Kaser 1971, op. cit. (n. 32) 331–332.
D. 24.1.1.
D. 24.1.32 pr. only mentions Caracalla as the instigator of the oratio principis, Pap. Vat. 294.2 attributes the oratio to both emperors.
D. 24.1.32.1 (Ulpianus, libro 33 ad Sabinum).
D. 24.1.32.4 (Ulpianus, libro 33 ad Sabinum).
C. 9.12.2.
D. 27.3.1 pr. On this actio, see Kaser 1971, op. cit. (n. 32), 365–366.
Cf. D. 48.7.1 pr., which explicitly mentions the confiscation of one third of the offender’s property in case of a conviction on the basis of the lex Iulia de vi privata.
T. Mommsen, Römisches Strafrecht (Leipzig 1899), 1005.
Cf. D. 45.1.85 pr.-1. Also Kaser 1971, op. cit. (n. 32), 733 and U. Babusiaux, Wege zur Rechtsgeschichte: Römisches Erbrecht (Köln 2015), 87.
See for other discussions of this text E. Mataix Ferrándiz, ‘“Washed by the waves”: fighting against shipwrecking in the later Roman empire’, in: A. Lampinen & E. Mataix Ferrándiz, eds., Seafaring and mobility in the late antique mediterranean (London 2022), 139 and S. Solazzi, ‘Su C. I. XI 6 “De naufragiis”’, Revista del dirrito della navigazione 5 (1939), 253–255.
C. 11.6.1.
D. 47.9.1 pr. (Ulpianus, libro 56 ad Edictum).
D. 47.9.7. See also D. 47.9.3.8 (Claudius and the senate), D. 47.9.4.1 (Antoninus Pius), D. 47.9.12 pr. (Severus and Caracalla).
For C. 11.6.1 see in a similar sense Solazzi, op. cit. (n. 48), 254–255.
See for example D. 26.6.2.2, in which Septimius Severus states that he regarded the protection of minors as a cura publica, which deserved his specific attention.
Caracalla’s empathy might have been prompted by his own alleged experiences. In HA Car. 5.8 it is mentioned that Caracalla himself nearly suffered shipwreck when crossing the Hellespont (see also Cass. Dio, 77(78).16.7).
Solazzi 1939, op. cit. (n. 48), 255.
F. Millar, ‘Emperors at work’, Journal of Roman Studies 57 (1967), 9–19 and Millar 1992, op. cit. (n. 22), 203 ff.; W. Williams, ‘Caracalla and the authorship of imperial edicts and epistles’, Latomus 38 (1979), 67–89.
Honoré 1994, op. cit. (n. 8).
Honoré 1994, op. cit. (n. 8), 88–91.
Cf. Honoré 1994, op. cit. (n. 8), 91–95.
Nörr counts 16 of them, D. Nörr, ‘Zur Reskriptenpraxis in der hohen Prinzipatszeit’, Savigny Zeitschrift für Rechtsgeschichte: Romanistische Abteilung 98 (1981), 34–36, esp. note 105. According to Nörr all of these petitions were submitted in Rome, forwarded to Caracalla and his chancery in Germania or the eastern part of the Empire, answered by him and his staff and then sent back to Rome to be published.
Honoré 1994, op. cit. (n. 8), 43–45.
Cass. Dio, 77(78).17.1; 77(78).17.3–4.
Herod., 4.7.2.
Cf. HA Comm. 13,7, in which the author of the HA relates that Commodus, a similarly problematic emperor, barely showed any interest in the answering of petitions and left most official business to others.
Cass. Dio, 77(78),18,2–3. On the basis of this passage, some have argued that it was in fact Julia Domna who predominantly administered the Empire during the reign of Caracalla, see for example S.S. Lusnia, ‘Julia Domna’s Coinage and Severan Dynastic Propaganda’, Latomus 54 (1995) 136 (‘She was, for all intents and purposes, running the Empire’). More cautious are E. Kettenhofen, Die syrischen Augustae in der historischen Überlieferung. Ein Beitrag zum Problem der Orientalisierung (Bonn 1979), 16–19 and B. Levick, Julia Domna. Syrian empress (London 2007), esp. 95–97.
As has been suggested by K. Tuori, ‘Judge Julia Domna? A historical mystery and the emergence of imperial legal administration’, The Journal of Legal History 37 (2016), 180–197.
Cf. L. de Blois, ‘The constitutio Antoniniana (AD 212): Taxes or Religion?’, Mnemosyne 67 (2014), 1015: ‘The image of the emperor as it stands is largely defined by literary sources. They only tell us, however, how they perceived Caracalla’.