Roman Law
11/20/2007
Outline

 

I. COMMERCE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

II. STIPULATIO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III. THE TRIAL OF PAUL BEFORE FELIX AND FESTUS (Ac 24-25)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

lass=MsoNormal> 

 

 

 

 

IV. THE TRIAL OF POLYCARP

V. THE MARTYRS OF LYON

 

COMMERCE; TRIALS OF CHRISTIANS

 

1.

The Roman system has:

 

 

a.

no specialized commercial law, but a few contracts: emptio venditio, locatio conductio, and stipulatio

 

b.

a law of business organization that must be regarded as rudimentary

 

c.

an almost total absence of public law until the Dominate

 

2.

Are we looking in the right place?

What kind of K is this? ““For sixty denarii to be given on the day requested (for repayment) in good coin: promise called for in good faith by Julius Alexander, duly given in good faith by Alexander, son of Cariccius, who declares that he has received the sixty denarii in cash as a loan and owes them.  And for the interest upon them from this day per thirty days one per cent to be given to Julius Alexander or to whomsoever it may concern, promise called for in good faith by Julius Alexander, duly given in good faith by Alexander, son of Cariccius. Surety for payment of aforesaid principal and interest, properly and in good coin: Titius Primitivus. <Id fide sua esse iussit; this is fideiussio) Titius Primitius. Transacted at Alburnus Maior, 20 October, consulship of Rusticus for the second time and Aquilinus [162 AD, Transylvanian wax tablet, FIRA no. 122, Mats. p. 445].”

What kind of K is this? “C. Valerius Longus, trooper of the Aprian Squadron, has bought one horse, Cappadocian, black, for two thousand seven hundred Augustan drachmas from C. Julius Rufus, centurion of legion XXII. That said horse eats and drinks as veterinary animals customarily do <uti bestiam veterinam adsolet, i.e., draught animals from veho>, apart from [...] described openly visible on its body, and if anyone makes eviction of him, that double [? single] the value shall be properly paid in good coin as is customary, promise was called for by C. Valerius, duly given by C. Julius Rufus. And C. Julius Rufus, centurion, declares that he has received and holds from C. Valerius Longus, purchaser, said two thousand seven hundred Augustan drachmas, and [has transferred said horse to him]. Transacted at [... some place in Egypt], 7 June [or 9 July, i.e., 7 Idus Ju…], consulship of the Emperor Vespasian, eighth time, and Domitian, son of the Emperor, fifth time. [77 AD, FIRA no. 136, Mats. pp. 446–7].”

 

1.

C.8.37.10: The emperor Leo to Erythrius pretorian prefect [A.D. 472].  All stipulations even those that are not expressed in solemn or direct words but in whatever words express the consent of the contracting parties -- and they are in conformity with the laws -- have their firmity.

2.

D.45.1.1: Ulpian, Sabinus, book 48: A stipulation can only be effected when both parties can speak, and therefore neither a mute nor a deaf person nor an infans can contract a stipulation; nor, indeed, can someone who is not present, since they should both be able to hear.  If, therefore such a person wishes to take a stipulation, he does so through a slave who is present and acquires an action on a stipulation.  Also if someone wishes to be bound by an obligation, let him order it, and he will be bound in respect of his order (quod iussu).  1. When someone who is present asks a question but leaves before a reply is made to him, he makes an ineffective stipulation; if, however, he is present and asks, then leaves, and the reply is made to him on his return, he creates an obligation; for the interval between does not vitiate the obligation.  2. If a man asks “will you give,” and the other replies “why not,” he will certainly be in the position of being bound, but not if nodded assent without speaking.  For it is a matter not only of civil but also of natural law that a man who nods assent in this way is not bound; and for that reason it is right to say that a guarantor on his behalf is equally not bound.  3. If someone who is asked without qualification replies, “if such and such happens, I shall give,” it is clear that he is not bound; or if he is asked, “within five days of the Kalends,” and replies, “I shall give on the Ides,” it is equally clear that he is not bound; for he did not reply in the same terms as the question.  And contrariwise, if he was asked conditionally and replied unconditionally, it must be said that he is not bound.  When he adds anything to the obligation or subtracts from it, it is always agreed that the obligation is vitiated, unless the stipulator immediately approves the variation in the reply; for in that case another stipulation seems to have been contracted.  4. If, when I stipulate, “ten,” you reply, “twenty,” it is clear that no obligation has been made [except for ten].  Conversely, also, if I ask for “twenty” and you reply, “ten,” an obligation will not have been made [except for ten].  [For granted that the sum ought to be consistent, yet it is absolutely obvious that ten is part of twenty.]  (Si stipulanti mihi “decem” tu “viginti” respondeas, non esse contractam obligationem nisi in decem constat. ex contrario quoque si me “viginti” interrogante tu “decem” respondeas, obligatio nisi in decem non erit contracta: licet enim oportet congruere summam, attamen manifestissimum est viginti et decem inesse.) 5. But if, when I stipulate Pamphilus, you promise Pamphilus and Stichus, I think that the addition of Stichus should be regarded as superfluous.  For if there are as many stipulations as there are objects stipulated, there are, in a manner of speaking, two stipulations: one effective and the other ineffective: and the effective one is not vitiated by this ineffective stipulation.  6. It makes no difference whether the reply is made in the same language or in another.  For instance, if a man asks in Latin but receives a reply in Greek, as long as the reply is consistent, the obligation is settled.  Whether we extend this rule to the Greek language only or even to another, such as Punic or Assyrian or some other tongue, is a matter for doubt.  The writings of Sabinus, however, allow it to be true that all tongues can produce a verbal obligation, provided that both parties understand each other’s language, either of their own accord or by means of a truthful interpreter.

3.

D.45.1.137pr: Venuleius, Stipulations, book 1:  The acts of the stipulator and promisor must be continuous, [though a moment or two may intervene].  The reply must be made when the stipulator is at hand.  [If, after the question, something else is begun, the proceeding is invalid, even if the reply is given on the same day.]

4.

D.45.1.65pr–1. Florentinus, Institutes, book 8:  Whatever you add to a stipulation which is impertinent and irrelevant to the issue is taken to be superfluous and will not vitiate the obligation, for example, if one says, “I tell of arms and the man; I promise,” it is nonetheless valid.  1. And [even] if there is variation in the matter promised or in the names of the parties, this is <not> fatal.  You will [not] be bound by a promise of a quantity of gold coins to one stipulating for bronze coins and you will [not] be bound by a promise to Titius given to his slave stipulating on behalf of his master Lucius who is the same man.

5.

GI.3.103. Further, if we stipulate for conveyance to a person to whose power we are not subject, the stipulation is void. Hence a question has arisen how far a stipulation for conveyance to oneself and to one to whose power one is not subject is valid.  Our teachers hold it to be completely valid, and that the whole of what is promised is due to him alone who put the stipulation, just as if he had not added the stranger’s name.  But the authorities of the other school consider that half is due to the stipulator, but that the stipulation is void as to the other half.

6.

C.4.32.1: The emperor [Antoninus] Pius to A. Aurelius, defendant. If it is proven that a promise of interest was properly made with a preceding question, even though it is not written in an instrument, nonetheless it is owed by the best law.

7.

Paul, Sentences 5.7.2: The obligation of words is contracted among those who are present and not among those who are absent.  But if it should be written in an instrument that someone has promised something, it shall be considered the same as if it were an answer to a preceding question.

8.

C.4.2.14: The same emperors [Diocletian and Maximianus] and the Ceasars to Hadrian [A.D. 293].The creditor does not have (you) bound for money lent which he gave to others beyond the solemnity of words subscribed in an instrument.  (Scott suggests “did not render you liable unless you signed a written contract evidencing the loan.”)

 

24 1 Five days later the high priest Ananias came down with some elders and an attorney, a certain Tertullus, and they reported their case against Paul to the governor. 2 When Paul had been summoned, Tertullus began to accuse him, saying:

“Your Excellency, because of you we have long enjoyed peace, and reforms have been made for this people because of your foresight. 3 We welcome this in every way and everywhere with utmost gratitude. 4 But, to detain you no further, I beg you to hear us briefly with your customary graciousness. 5 We have, in fact, found this man a pestilent fellow, an agitator among all the Jews throughout the world, and a ringleader of the sect of the Nazarenes. 6 He even tried to profane the temple, and so we seized him. 7  8 By examining him yourself you will be able to learn from him concerning everything of which we accuse him.” 9 The Jews also joined in the charge by asserting that all this was true. 10 When the governor motioned to him to speak, Paul replied:

“I cheerfully make my defense, knowing that for many years you have been a judge over this nation. 11 As you can find out, it is not more than twelve days since I went up to worship in Jerusalem. 12 They did not find me disputing with anyone in the temple or stirring up a crowd either in the synagogues or throughout the city. 13 Neither can they prove to you the charge that they now bring against me. 14 But this I admit to you, that according to the Way, which they call a sect, I worship the God of our ancestors, believing everything laid down according to the law or written in the prophets. 15 I have a hope in Goda hope that they themselves also acceptthat there will be a resurrection of both the righteous and the unrighteous. 16 Therefore I do my best always to have a clear conscience toward God and all people. 17 Now after some years I came to bring alms to my nation and to offer sacrifices. 18 While I was doing this, they found me in the temple, completing the rite of purification, without any crowd or disturbance. 19 But there were some Jews from Asiathey ought to be here before you to make an accusation, if they have anything against me. 20 Or let these men here tell what crime they had found when I stood before the council, 21 unless it was this one sentence that I called out while standing before them, “It is about the resurrection of the dead that I am on trial before you today.’”

22 But Felix, … adjourned the hearing … .” 23 Then he ordered the centurion to keep him in custody, but to let him have some liberty and not to prevent any of his friends from taking care of his needs. 24 Some days later when Felix came with his wife Drusilla, who was Jewish, he sent for Paul and heard him speak concerning faith in Christ Jesus. 25 … At the same time he hoped that money would be given him by Paul … . 27 After two years had passed, Felix was succeeded by Porcius Festus; and since he wanted to grant the Jews a favor, Felix left Paul in prison.

25 1 Three days after Festus had arrived in the province, he went up from Caesarea to Jerusalem 2 where the chief priests and the leaders of the Jews gave him a report against Paul. They appealed to him 3 and requested, as a favor to them against Paul, to have him transferred to Jerusalem. They were, in fact, planning an ambush to kill him along the way. 4 Festus replied that Paul was being kept at Caesarea, and that he himself intended to go there shortly. 5 “So,” he said, “let those of you who have the authority come down with me, and if there is anything wrong about the man, let them accuse him.” 6 … [H]e went down to Caesarea; the next day he took his seat on the tribunal and ordered Paul to be brought. 7 When he arrived, the Jews who had gone down from Jerusalem surrounded him, bringing many serious charges against him, which they could not prove. 8 Paul said in his defense, “I have in no way committed an offense against the law of the Jews, or against the temple, or against the emperor.” 9 But Festus, wishing to do the Jews a favor, asked Paul, “Do you wish to go up to Jerusalem and be tried there before me on these charges?” 10 Paul said, “I am appealing to the emperor’s tribunal; this is where I should be tried. I have done no wrong to the Jews, as you very well know. 11 Now if I am in the wrong and have committed something for which I deserve to die, I am not trying to escape death; but if there is nothing to their charges against me, no one can turn me over to them. I appeal to the emperor.” 12 Then Festus, after he had conferred with his council, replied, “You have appealed to the emperor; to the emperor you will go.”

13 After several days had passed, King Agrippa and Bernice arrived at Caesarea to welcome Festus. 14 … Festus laid Paul’s case before the king, saying, “There is a man here who was left in prison by Felix. 15 When I was in Jerusalem, the chief priests and the elders of the Jews informed me about him and asked for a sentence against him. 16 I told them that it was not the custom of the Romans to hand over anyone before the accused had met the accusers face to face and had been given an opportunity to make a defense against the charge. 17 So when they met here, I lost no time, but on the next day took my seat on the tribunal and ordered the man to be brought. 18 ns, I asked whether he wished to go to Jerusalem and be tried there on these charges. 21 But when Paul had appealed to be kept in custody for the decision of his Imperial Majesty, I ordered him to be held until I could send him to the emperor.” 22 … On the next day Agrippa and Bernice came with great pomp, and … Festus gave the order and Paul was brought in. 24 And Festus said, “King Agrippa and all here present with us, you see this man about whom the whole Jewish community petitioned me, both in Jerusalem and here, shouting that he ought not to live any longer. 25 But I found that he had done nothing deserving death; and when he appealed to his Imperial Majesty, I decided to send him. 26 But I have nothing definite to write to our sovereign about him. Therefore I have brought him before all of you, and especially before you, King Agrippa, so that, after we have examined him, I may have something to write— 27 for it seems to me unreasonable to send a prisoner without indicating the charges against him.”

 

Ch. 6: 1 And when the searching for him [Polycarp] persisted he went to another farm; and those who were searching for him came up at once, and when they did not find him, they arrested young slaves, and one of them confessed under torture. 2 For it was indeed impossible for him to remain hid, since those who betrayed him were of his own house, and the police captain who had been allotted the very name, being called Herod, hastened to bring him to the arena that he might fulfil his appointed lot by becoming a partaker of Christ, while they who betrayed him should undergo the same punishment as Judas.

Ch. 9: 1 Now when Polycarp entered into the arena there came a voice from heaven: “Be strong, Polycarp, and play the man.” … And next he was brought forward, and there was a great uproar of those who heard that Polycarp had been arrested. 2 Therefore when he was brought forward the Pro-Consul asked him if he were Polycarp, and when he admitted it he tried to persuade him to deny, saying: “Respect your age,” and so forth, as they are accustomed to say: “Swear by the genius of Caesar, repent, say: ‘Away with the Atheists’”; but Polycarp, with a stern countenance looked on all the crowd of lawless heathen in the arena, and waving his hand at them, he groaned and looked up to heaven and said: “Away with the Atheists.” 3 But when the Pro-Consul pressed him and said: “Take the oath and I let you go, revile Christ,” Polycarp said: “For eighty and six years have I been his servant, and he has done me no wrong, and how can I blaspheme my King who saved me?”

Ch. 10: 1 But when he persisted again, and said: “Swear by the genius of Caesar,” he answered him: “If you vainly suppose that I will swear by the genius of Caesar, as you say, and pretend that you are ignorant who I am, listen plainly: I am a Christian. And if you wish to learn the doctrine of Christianity fix a day and listen.” 2 The Pro-Consul said: “Persuade the people.” And Polycarp said: “You I should have held worthy of discussion, for we have been taught to render honour, as is meet, if it hurt us not, to princes and authorities appointed by God. But as for those, I do not count them worthy that a defence should be made to them.”

Ch. 11: 1 And the Pro-Consul said: “I have wild beasts. I will deliver you to them, unless you repent.” And he said: “Call for them, for repentance from better to worse is not allowed us; but it is good to change from evil to righteousness.” 2 And he said again to him: “I will cause you to be consumed by fire, if you despise the beasts, unless you repent.” But Polycarp said: “You threaten with the fire that burns for a time, and is quickly quenched, for you do not know the fire which awaits the wicked in the judgment to come and in everlasting punishment. But why are you waiting? Come, do what you will.”

Ch. 12: 1 And with these and many other words he was filled with courage and joy, and his face was full of grace so that it not only did not fall with trouble at the things said to him, but that the Pro-Consul, on the other hand, was astounded and sent his herald into the midst of the arena to announce three times: “Polycarp has confessed that he is a Christian.” 2 When this had been said by the herald, all the multitude of heathen and Jews living in Smyrna cried out with uncontrollable wrath and a loud shout: “This is the teacher of Asia, the father of the Christians, the destroyer of our Gods, who teaches many neither to offer sacrifice nor to worship.” And when they said this, they cried out and asked Philip the Asiarch to let loose a lion on Polycarp. But he said he could not legally do this, since he had closed the Sports. 3 Then they found it good to cry out with one mind that he should burn Polycarp alive, for the vision which had appeared to him on his pillow must be fulfilled, when he saw it burning, while he was praying, and he turned and said prophetically to those of the faithful who were with him, “I must be burnt alive.”

 

Sec. 4: The greatness of the tribulation in this region, and the fury of the heathen against the saints, and the sufferings of the blessed witnesses, we cannot recount accurately, nor indeed could they possibly be recorded.

Sec. 7: First of all, they endured nobly the injuries heaped upon them by the populace; clamors and blows and draggings and robberies and stonings and imprisonments, and all things which an infuriated mob delight in inflicting on enemies and adversaries.

Sec. 8: Then, being taken to the forum by the chiliarch and the authorities of the city, they were examined in the presence of the whole multitude, and having confessed, they were imprisoned until the arrival of the governor.

Sec. 9: When, afterwards, they were brought before him, and he treated us with the utmost cruelty, Vettius Epagathus, one of the brethren, and a man filled with love for God and his neighbor, interfered. His life was so consistent that, although young, he had attained a reputation equal to that of the elder Zacharias: for he ‘walked in all the commandments and ordinances of the Lord blameless,’ and was untiring in every good work for his neighbor, zealous for God and fervent in spirit. Such being his character, he could not endure the unreasonable judgment against us, but was filled with indignation, and asked to be permitted to testify in behalf of his brethren, that there is among us nothing ungodly or impious.

Sec. 10: But those about the judgment seat cried out against him, for he was a man of distinction; and the governor refused to grant his just request, and merely asked if he also were a Christian. And he, confessing this with a loud voice, was himself taken into the order of the witnesses, being called the Advocate of the Christians, but having the Advocate in himself, the Spirit more abundantly than Zacharias. He showed this by the fullness of his love, being well pleased even to lay down his life in defense of the brethren. For he was and is a true disciple of Christ, ‘following the Lamb whithersoever he goeth.’

Sec. 11: Then the others were divided and the proto-witnesses were manifestly ready, and finished their confession with all eagerness. But some appeared unprepared and untrained, weak as yet, and unable to endure so great a conflict. About ten of these proved abortions, causing us great grief and sorrow beyond measure, and impairing the zeal of the others who had not yet been seized, but who, though suffering all kinds of affliction, continued constantly with the witnesses and did not forsake them.

Sec. 14: And some of our heathen servants also were seized, as the governor had commanded that all of us should be examined publicly. These, being ensnared by Satan, and fearing for themselves the tortures which they beheld the saints endure, and being also urged on by the soldiers, accused us falsely of Thyestean banquets and Œdipodean intercourse, and of deeds which are not only unlawful for us to speak of or to think, but which we cannot believe were ever done by men.

Sec. 15: When these accusations were reported, all the people raged like wild beasts against us, so that even if any had before been moderate on account of friendship, they were now exceedingly furious and gnashed their teeth against us. And that which was spoken by our Lord was fulfilled: ‘The time will come when whosoever killeth you will think that he doeth God service.’

Sec. 16: Then finally the holy witnesses endured sufferings beyond description, Satan striving earnestly that some of the slanders might be uttered by them also.

 

 

Download this outline.


[Home Page] [Syllabus] [Announcements] [Lectures]

Please send comments to Rosemary Spang

URL:  http://courses.law.harvard.edu/faculty/cdonahue/courses/rlaw/c20.out.html
last modified:  12/14/08

Copyright © 2007. Charles Donahue, Jr.