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PREFACE

After receiving a lot of attention from ancient historians in the late seventies and
eighties patronage as an object of study is again ‘out’. The study of patronage and
amicitia has always been biased towards their political potential. Today, however,
the traditional view of Roman amicitia and patronage as stable political party-like
associations used by the aristocracy to effectively control the people’s votes has been
virtually abandoned. Attention is rightly focusing more on the autonomous role of
the people and of the voting assemblies in Republican politics, yielding a less one-
sided picture of the Republican institutions.
An unfortunate side-effect, however, is that the attention to amicitia and patronage
itself has diminished. Many questions still remain unanswered. Patronage and
amicitia were certainly not political party-like institutions and patronage could not
control the elections, but are we really willing to believe that ‘connections’ were
unimportant to a young politician’s career, that eloquence and money sufficed, that
personal political alliances did not exist or were simply irrelevant, that political
decision making was free from personal influences? I doubt many of us – or should I
say any of us ? – would be willing to go so far.
The valuable contributions of sociologists and anthropologist are still not
sufficiently accounted for in our perception of ancient friendship and patronage.
Conversely sociologists and anthropologists have a lot to gain from a better
understanding of Roman patronage and friendship.(1) Comparative studies have
rarely been attempted, although a quick glance at some work by historians of, for
example, Early Modern Europe, reveals strikingly similar problems and solutions.(2)
Although almost every study on patronage or amicitia mentions at least one or two
ways in which friends, patrons and clients offered each other substantial economic
advantages, the role of these phenomena in the organisation of the

(1) Roniger’s much cited contribution to Roman patronage is based too much on outdated views
from the great classics on Roman patronage, Mommsen, Taylor, Gelzer and Badian (RONIGER (1983).
See also EISENSTADT & RONIGER (1984), p. 52-64).
(2) See. e.g. KETTERING (1986); KETTERING (1992). KOOIJMANS (1992).

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economy has as yet received hardly any systematic treatment. A lot of work,
therefore, remains to be done. I hope this book will prove a contribution to a better
understanding of the role of amicitia and patronage in the economy.
A few limitations should be noted from the outset. My study focuses on the Late
Republic. This choice is merely a practical one; the advent of the Emperors
constituted a political rupture, not an economic one. As far as social and economic
questions are concerned, the distinction between Republic and Early Empire is
meaningless. Many of my arguments, therefore, will be as much to the point for the
Early Empire as for the Late Republic and I draw shamelessly on evidence from
other centuries to fill in the gaps in the Republican sources or to provide
comparisons.
However, the source material for the Late Republic is incomparably richer than
that of later or earlier periods, mainly, of course, thanks to the works of Cicero. Since
I wanted this study to be based on concrete case analyses while still surveying as
many economic aspects of amicitia and patronage as possible, it was impossible for
me to cover the entire period of more than 400 years (ca. 200 BCE – ca. 250 CE) that
should, ideally, be studied.
Even within this limitation, the whole subject of the economic potential of
amicitia and patronage is too vast to be treated fully in one book and this study
focuses on just two aspects of the economy, viz. the allocation and circulation of
scarce resources, and the organisation of economic activities and strategies. The six
chapters in parts II and III each deal with a particular theme pertaining to these
aspects.
Furthermore, I have chosen to take the perspective of the reciprocal obligations of
Roman friendship (officia), instead of, for example, that of transactions. The main
question throughout is: In what way could the obligations that were expected from
friends, patrons and clients be economically useful?
As always, to choose is to lose. My perspective neglects many other important
questions. How did amicitia and patronage influence prices? How did they regulate
the flow of information? How were networks of friends, patrons and clients formed
and how did they function? How did amicitia influence the awarding of public
contracts? And so forth.
However, I believe that the first step toward answering these questions should be
to assess how the complex of moral obligations expected from friends, patrons and
clients determined or enabled activities either

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consciously or unconsciously directed towards economic goals. Accordingly, this


is what I set out to do. Other scholars should at least benefit from the material
presented here.
Another regrettable limitation is of a totally different nature. This book is actually
about a very small minority of the Roman population, which in the period in question
consisted almost exclusively of Italians. This is a book about senators, knights,
municipal nobles and rich would-be nobles – roughly 3-5% of the population
(women and children included) – and their retainers (slaves, freedmen, clients and
protégés) – perhaps another 10% of the population.
However, although a precise estimate is impossible, this 10-15 % of the
population undoubtedly controlled a disproportionately large part of the Italian
economy, both in terms of capital and of income and so the impact of the behaviour
of this minority on the economy was equally disproportionate. Nevertheless, readers
should be warned that the behavioural patterns studied in this book are those of the
political, social and economic elite and their entourage, which are not necessarily the
same as those of the ‘common’ people.
Some readers may be irritated because I consistently consider the patron-client
bond as a form of amicitia. I have tried to explain why in the third chapter of the first
part of this book. To sum it up: from the perspective of social exchange and norms I
consider patronage as a variant of amicitia or instrumental friendship. Both concepts
derive from sociology where they denote dyadic personal relations of some duration
based on reciprocity, loyalty, trust and affection. When the relation is symmetrical
we speak of (instrumental) friendship, when it is asymmetrical we call it patronage.
Symmetry itself is determined by the access or lack of access each patrner has to
basic resources exchanged between them, which in term determines the dependency
of one partner on the other.(3) As such, patronage and (instrumental) friendship are
subdivisions of a general class of social relations that may be found in any society
under widely different names and appearences.

(3) The sociological literature on friendship and patronage is vast see e.g. BLOK (1969a); BLOK
(1969b); BOISSEVAIN (1966); BOISSEVAIN (1969); CAMPBELL (1964); EISENSTADT &
RONIGER (1980); EISENSTADT & RONIGER (1984); ELLEMERS (1969); FISCHER (1982);
GALJART (1969); GELLNER & WATERBURY (1977); WERTHEIM ( 1969); WOLF (1966);
MÉDARD (1976). For a selection of important contributions see SCHMIDT & GUASTI & LANDÉ &
SCOTT (1977).

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Yet at the same time as a specific social relationship the ancient Roman patronus -
cliens bond was a cultural phenomenon sui generis. Although it falls under the
sociological ‘heading’ of patronage, Roman patrocinium-clientela shows many
features that cannot be explained or even described in the general terms offered by
sociological literature on patronage. Therefore, although I will not be doing so in this
book, I do believe that Roman patronage deserves to be studied as an historical
phenomenon in itself.
Another distinction which I will mostly ignore, is that between emotional and
instrumental friendship. Roman amicitia was a complex phenomenon. Affectionate
friendship had to be shown by acts of kindness that were materially benecial but
kindled the emotional fire of friendship nevertheless. Conversely, utilitarian
friendship was caught up in the same web of values as emotional friendship.
Reputation sanctioned both acts of kindness and acts of calculation. In most cases,
the fragmentary state of our sources means that it is virtually impossible for us to
distinguish between true and feigned emotions.
For my purposes, it seemed better, therefore, to treat Roman friendship as a single
cultural phenomenon with a uniform social behavioural pattern that individuals could
take up either out of calculation or out of affection or out of a mix of both. I
acknowledge the imperfection of this approach, but the subject of this book is not
friendship as such but how friendship served as an instrument for economic activity.
From this perspective the distinction between true and feigned amicitia is of little
relevance.
I have translated all in-text citations myself (except when otherwise stated), firstly
because I want this book to be as open to non-classicists as possible, secondly
because every translation is inevitably also an interpretation. Many standard-edition
translations were too vague to express my understanding of a particular text and
occasionally my interpretation differed from that of previous editors and translators.
Generally speaking most available standard translations were simply not ‘literal’
enough to convey what I believed to be important in a certain text and which was the
reason for inserting the citation in the first place.
Nevertheless, I fully confess that I shamelessly used Budé or Loeb translations as
guidelines whenever I could (except for Cicero’s Letters to Atticus for which I used
Shackleton Bailey’s translation). I have not systematically referred to these editions
for fear of seeming to want to escape responsibility for possible errors in the
translations, but the reader is

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hereby informed that each and every translation is indebted to at least one previous
edition with translation.
To conclude this preface, the final and most pleasant task still remains. This book
has been long in the making. It started as a dissertation on amicitia and loans in
Cicero’s letters for my master’s degree some twelve years ago(4), afterwards growing
into my PhD dissertation, which was subsequently reworked to form (at last) this
book. Many debts of gratia have been accrued in these years and it gives me great
pleasure to thank all those who have helped me. First of all I would like to thank my
promoter Prof. John Devreker and my colleagues Prof. Robert Duthoy and Prof.
Dorothy Pikhaus for their continuing support and advice. I owe especially many
thanks to Prof. Jean Andreau, who not only read several chapters of the manuscript,
but whose friendship and advice have been (and still are) a great aid. Prof. Raymond
Bogaert has been a source of inspiration since the very beginning of my work. I
would also very much like to thank Prof. Henri Pleket for his advice and for agreeing
to be commissioner and reader of my PhD dissertation. I’m very grateful also to Prof.
Jacques Michel for accepting to read my PhD dissertation, to Prof. Richard Saller
who read the whole manuscript of this book and to Prof. Dominic Rathbone who
read several chapters of it. I would also like to thank Jim O’Driscoll for proof-
reading the manuscript and the editors of Latomus under the direction of Prof. Carl
Deroux for generously allowing me the time I needed for the laborious work of
translating and reworking the original PhD dissertation. Finally I want to thank my
wife Kristien for standing by me all these years, enduring my all too frequent
absences of mind and my flirting with long dead peregrines. Needless to say, all
remaining errors are mine. This book is dedicated to the memory of my little boy,
Marius.
Ghent, Monday, 03 July 2000

(4) VERBOVEN (1990).

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INTRODUCTION.

Paul Veyne characterised the Hellenistic World as ‘une société d’amis et de


citoyens, non de travailleurs qui salariés, entrepreneurs ou fonctionaires, sont soumis
à une réglementation universaliste et à la loi de fer du marché des bien et du travail’.5
This assertion goes to the heart of the modernist-primitivist debate. Regardless of
what the ancient economy was truly like it cannot be denied that Greeks and Romans
did not perceive the forces of the market economy as the determining factor in their
lives. Their ‘mental map’ of the world focused on family, friends and citizens, not on
businessmen, firms, employees and markets.
Although every researcher who ever worked on patronage or amicitia mentions at
least some of the economic advantages these relations offered, little or no systematic
research has been done on their overall economic importance. This is all the more
remarkable when we read, for instance, in Saller’s conclusion to his Personal
Patronage that ‘the evidence suggests that exchange between patrons and clients was
of considerable importance in political, legal, social and economic affairs’.6
Paradoxically, although the economic obligations of amicitia and patronage are
generally recognised, the obligations themselves and the overall economic relevance
of these phenomena have received only an ad hoc attention. Most work done so far
has focused on their political importance.
Saller’s Personal Patronage has six pages on the economic benefits of patronage
subdivided into loans and debts, gifts, legacies and property transactions.7 The
Roman Empire by Garnsey and Saller adds that ‘the wealthiest Romans also used
friends to look after their widely dispersed property.’8 Rouland’s Pouvoir politique et
dépendance personnelle has

5
VEYNE (1976), p. 18.
6
SALLER (1982), p. 206. See also ibid. p. 126 and WALLACE-HADRILL (1989), p. 72-73: ‘the
secret of the game (sc. of patronage) is the manipulation of scarce resources’.
7
SALLER (1982), p. 120-126.
8
GARNSEY & SALLER (1987), p. 155. See also SCULLARD (1951), p. 12-15 (p. 14: ‘economic
factors ... a not unimportant, though unadvertised, role in the working of patronage ‘); cf. SHATZMAN
(1975), p. 82.

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chapters entitled ‘aide économique’, but these are rarely longer than one paragraph
and deal almost exclusively with the importance of sportulae in mass clientelae.9
Deniaux’s Clientèles et pouvoir à l’époque de Cicéron has a chapter on
recommendations for businessmen, but she too is mainly interested in the political
aspects of the phenomenon and has little to say about what use the commendationes
had for the negotiatores.10
Broadly speaking, the potential of amicitia and patronage is recognisable in two
important fields of economic life. On the one hand, amicitia and patronage provided
an alternative mechanism for the allocation of scarce resources; on the other hand,
they provided a more or less reliable framework for the organisation of economic
activities. Important research has been done in both fields, but a comprehensive study
is still lacking.

The allocation of scarce resources.


Recognition of the socio-economic importance of friendship and patronage is most
clearly found in works on Greco-Roman social aid. The two ‘classical’ works on
social security and poverty in the Ancient World, Hands’s Charities and Bolkestein’s
Wohltätigkeit und Armenpflege, both consider amicitia / philia as one of the prime
motives for social aid.11 They have been followed most recently by Prell in his
Armut.12 Gallant has traded this limited socio-ethical approach for a sociological
analysis of philia as a device to construe personal social security networks based on
reciprocity and trust. His analysis shows the overall importance of personal
reciprocity relations for the functioning of the Greek peasant economy while
avoiding the pitfalls and commonplaces of the concept of the ‘embedded
economy’.13

9
see especially ROULAND (1979), p. 274 where the author explicitly states that he intends to limit
himself to ‘la forme la plus élémentaire d’assistence économique: la distribution de nourriture’, see also
p. 519 where the officia testamentaria are dealt with in seven lines. ROULAND (1981) pays even less
attention to the economic aspects (see e.g. p. 270: ‘Hormis quelques cadeaux, c’est surtout par l’octroi de
la sportule que se manifeste l’assistance économique du patron.’, see also p. 143)
10
DENIAUX (1993a), p. 213-248; cf. also COTTON (1986), p. 444.
11
HANDS (1968), p. 26-48. See ibid. p. 35 for the overall economic importance of friendship:
‘"friends" supplied services analogous to those provided by bankers, lawyers, hotel owners, insurers and
others today.’; BOLKESTEIN (1939), p. 162-163, 295-296.
12
PRELL (1997), p. 260-269.
13
GALLANT (1991), p. 143-169; compare now TANDY (1997) and SCHAPS, Review of Tandy,
in: BMCR (1998) 11.1.

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Although it has repeatedly been confirmed that friends were expected to support
each other financially, the importance of friendship and patronage to the financial
system as a whole has received scant attention. Two recent works on the Athenian
credit system have begun filling this gap. One is Millett’s Lending and borrowing in
ancient Athens, which has a chapter on the importance of friends as a source of loans
and sureties. The author, however, adheres to a strictly primitivist viewpoint,
emphasising the fundamental incompatibility of the ‘moral economy’, to which loans
between friends belonged, and the ‘capitalist economy’ of bankers and businessmen,
which would have been only marginal to the Athenian society and economy.
Consequently any financial support that friends could have supplied to businessmen
or any manipulation by businessmen of the ethics of philia to achieve success in
business is ignored.14 The other is Cohen’s Athenian economy, which has a very
different approach of the problem. This work totally ignores ‘the moral economy’
emphasised by Millet and develops a strictly modernist view of the Athenian
financial system, run by highly professional bankers and capitalists. In Cohen’s eyes,
friends served as important business assets, on which businessmen relied for sureties,
information and help.15 Paradoxically, therefore, although patronage and amicitia are
recognised as providing economically important resources, their contribution to the
economy as a whole is mostly ignored. Why is this?
When we turn to sociology and anthropology we find a large number of books and
articles on ‘economic anthropology’ and the ‘substantive economy’, emphasising the
role of personal relations in economies. However, these generally deal with
structurally undifferentiated ‘primitive’ economies or with peasant economies. In the
wake of Mauss’s famous Essai sur le don and Malinowski’s Argonauts of the
Western Pacific the potential of gift-exchange emerged in the minds of
anthropologists as a full-fledged system for the satisfaction of human needs and
wants. Polanyi construed a model in which market exchange and reciprocity were
conceived as incompatible. Although he stressed that both economic systems
coexisted in reality, they were thought of as belonging to different worlds.16
Macherel (to name just one example) claims that ‘les

14
MILLETT (1991), p. 127-159; contra see KONSTAN (1997), p. 82: ‘Friendship in the classical
city was not embedded in relations of economic exchange … any more than it was entangled in political
alliances.’
15
COHEN (1992), p. 34, 65-66, 89.
16
MAUSS (1923-1924); MALINOWSKI (1922); POLANYI & ARENSBERG & PEARSON
(1957), passim; Polanyi’s influence has been enormous. See SAHLINS (1972), p. 185-230 for a further
refinement of the idea of a reciprocity based economy (cf. COOK (1974) for a critical review). On
Polanyi and his influence on the study of ancient history see HUMPHREYS (1978). For the application
of Polanyi’s ideas to the ancient world see CARNEY (1973), p. 59-66 and passim; FINLEY (1974);
MILLETT (1991), passim.

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hommes ont inventé deux manières d’échanger, deux grands mécanismes


régulateur de l’échange. Le don d’abord ... C’est le mécanisme le plus ancien ...
L’autre mécanisme est le marché’.17
Sociological studies of patronage or friendship in modern (or modernising)
societies rarely concern themselves with the role played by these relations in the
economy, apart from noting that clients may support their patrons politically in the
hope of receiving social and economic support. Most studies see patronage as a
typically political phenomenon and hold that in societies where the allocation of
resources is traditionally determined by patronage, economic modernisation towards
a developed market economy frees clients from the authority of their patrons, causing
the breakdown of the traditional patronal system. The development of a modern
market economy is thus seen as opposed to traditional patronage based allocation
systems. Gellner asserts that patronage is typical for political contexts because the
benefits here are by nature vague, whereas economic benefits are much easier to
isolate. Therefore: ‘politics are patronage prone whereas economics are such only
when they are politicised.’ According to Eisenstadt and Roniger, although some
patron-client relations are based on instrumental considerations of an economic
nature, these are marginal exceptions to the rule that the reciprocal exchange within
patron-client relations is normally determined by considerations of power, solidarity,
personal trust and symbolic meaning 18
Patronage seems incompatible with the paradigm of the homo economicus
allocating scarce resources in a perfectly rational way to achieve a maximum profit.
According to Weber, this rationality is of a special kind. He differentiated between
economically oriented behaviour, based on a substantive rationality, and
economically rational behaviour based on formal rationality. ‘Substantive rationality’
in Weber’s view involves dealing with scarce resources on the basis of their
subjective value in terms of different ultimate ends (political, ethical, hedonistic…).
‘Formal rationality’ involves dealing with scarce resources based on their formal
value in numerical terms. Formal rationality requires that scarce resources can be
quantified and lies at the heart of monetary accounting,

17
MACHEREL (1983), p. 151. Compare HERMAN (1987), p. 80.
18
GELLNER (1977), p. 6. EISENSTADT & RONIGER (1984), p. 256.

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without which (according to Weber) any rational economic management is


impossible. The object of formal economic action is to realise a profit, expressed in
numerical monetary terms. According to Weber monetary accounting can only be
fully reliable in a market economy where the formal value ascribed to goods and
services derives not from any subjective appreciation but from the iron law of supply
and demand. Accordingly, the models and explanations of classical economic theory
could only be applied to market economies dominated by economic actors
complying with the ideal type of homo economicus.19
Of course, Weber’s theories have been much criticised. Neo-classical economists
insist that it is enough for the economic subject to be consciously aware of the
scarcity of the goods and services he is dealing with to make classical economic
analysis valid.20 This is not the place to go any deeper into the problem. We see in
fact that modern economic methodology mostly complies with Weber’s ideal type
and is concerned almost exclusively with what Polanyi called the ‘formal economy’,
where economic action is oriented by the price set on goods and services by an
impersonal market.21
The premise has major consequences for the study of the economic effects of
patronage and instrumental friendship relations. The value placed on these relations
is eminently immaterial: security, reputation, credibility, influence... The reciprocal
exchange that these relations are based on in no way resembles the exchange
relationships of the impersonal market. Whereas the latter are of the simple and
immediate this-for-that kind, personal reciprocity relations involve a ‘package deal
exchange’ over an extended period of time, including both material and immaterial
benefits. Pledges of loyalty, solidarity and sympathy concur with and are ‘exchanged
for’ substantial economic and political resources.22

19
WEBER (1922), p. 145-189. See also WEBER (1921); WEBER (1920). Polanyi takes over much
of Weber’s terminology and distinguishes ‘formal economies’ from ‘substantive economies’ (cf.
POLANYI (1957b)). This takes us back to the modernist-primitivist debate (see ANDREAU (1977);
ANDREAU & ETIENNE (1984); HARRIS (1993)). Note that Weber’s and Polanyi’s dichotomy is fully
in line with what Aristotle has to say about and . For Aristotle’s
view on the economy see POLANYI (1957a); FINLEY (1974); BODEÜS (1991); MEIKLE (1991). For
Aristotle’s influence on economic theory, see WAGNER (1969), p. 10-13, 49-50, 63-64, 74-75.
20
see JONGMAN (1988), p. 47.
21
cf. e.g. PAENSON (1963), p. 35: Economy is ‘the study of activities having an economic
character, i.e. utilising scarce resources for the satisfaction of human wants, which are measurable in
terms of monetary value.’
22
see EISENSTADT & RONIGER (1984), p. 48; EISENSTADT & RONIGER (1980), p. 49-50,
214-215, 250; cf. also MAUSS (1923-1924), p. 37 ‘un système de prestations total’; WOLF (1966), p.
13: ‘The relation aims at a large and unspecified series of performances’; MÉDARD (1976), p. 117.

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Although this global exchange is highly instrumental towards achieving personal


goals, the rationality of the exchange is not based on the individual formal value of
the exchanged goods and services but rather on the total subjective value of the
‘package deal’.
In a sense, reciprocity relations can be conceived as a form of capital into which
one has to invest to reap (uncertain) benefits.23 The problem is, however, that neither
the investment nor the total profit can be calculated in monetary terms because they
consist of an inseparable variety of goods and services, to many of which (as, for
example, promises of solidarity and loyalty) a clear monetary value cannot possibly
be ascribed.
Therefore, although reciprocity relations may generate substantial benefits and
although both partners in the relationship may anticipate these benefits and want to
continue the relationship because of the anticipated benefits, the relations themselves
cannot be expressed in monetary terms. In Weber’s view of capitalism the prime
mover of economic action is the maximisation of profit in monetary terms, whereas
in a system based on reciprocity relations the prime mover is the desire to create and
maintain diffuse advantage relationships.

The organisation of economic activities.


The potential of ‘friendship’ and patronage to organise and manage economic
activities has received considerable attention from specialists of Roman law. Watson
favoured the long established idea that procuratio originated from the custom of
leaving one’s property behind in the custody of a friend and stressed the important
role friends played as mandatarii and procuratores in Cicero’s day.24 Michel’s
Gratuité en droit romain propounded the thesis that amicitia as an instrumental
relationship based on reciprocity (gratia) and loyalty (fides) lay at the origin of the
important gratuitous contracts in Roman law (such as mandatum, mutuum,
commodatum, depositum). Gradually the originally unenforceable officia mutua
characteristic of Roman friendship received legal recognition and became
enforceable. According to Michel, this was the

23
cf. e.g. BOISSEVAIN (1969), p. 383.
24
WATSON (1961), p. 20-21; WATSON (1965), p. 193-194; cf. infra.

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beginning of a long evolution whereby amicitia was gradually replaced by formal


contracts inheriting some of the characteristics of the old amicitia arrangements, such
as the formal requirement that the services offered had to be free.25 Kirschenbaum’s
Sons, freedmen and slaves devotes a chapter to non-potestas relationships and
agency? examining the economic usefulness of amici as agents. The author makes a
clear distinction between formal contractual relationships on the one hand and
amicitia on the other: ‘these were relations that never reached the inside of a
courtroom. Their entire tone precludes contract and suit action and liability.’26 As
does Michel, Kirschenbaum believes that ‘as the classical period of Roman law
progressed … friendship as a source of non-contractual agency in business gradually
became more limited’.27 The scenario recalls the earlier mentioned distinction
between the ‘moral economy’ and the ‘capitalist economy’. Bürge argues that the
apparent deficiencies in the Roman contractual systems in fact reflect a reality in
which personal ‘Treu- und Nahverhältnisse’, including instrumental friendship and
dependency relations, were the actual bonds that bound economic actors together.28
However, except for Bürge, legal historians have mostly focused on how amicitia
explained certain curiosities of the Roman law of obligations (for example the
gratuitous nature of some contracts). The implications for the economy at large
remain largely unexplored.
The importance or use of amicitia and patronage as means to organise economic
activities and achieve economic goals is related to the problems of scale in the
Roman economy.
Even today, the vast majority of economic activities are organised in small
enterprises run by individuals alone or with their families. Approximately 70 percent
of all enterprises in the U.S. in 1986 consisted of sole proprietorships.29 Independent
plumbers, shopkeepers, bartenders, carpenters and so forth, rarely face major
organisational difficulties, but the size of their enterprises is inevitably limited. When
we consider larger enterprises the difficulties of organisation and management
become more complex.

25
MICHEL (1962) passim; for the evolution towards formal contracts see p. 552-553.
KIRSCHENBAUM (1987), p.194-195.
26
KIRSCHENBAUM (1987), p. 122-199; p. 17 for the citation.
27
KIRSCHENBAUM (1987), p. 194-195.
28
BÜRGE (1980). See also BÜRGE (1987).
29
BYRNS & STONE (1992), p. 469.

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Until recently, the study of the organisation and management of large enterprises
has been based almost exclusively on corporate group models. The central concept in
these models until the 1970s was the firm or ‘corporation’. A corporation can be
great or small, bureaucratic or family based, hierarchically structured or based on
equal partnership, but it always manifests itself as a corporate group formed with an
exclusively economic purpose.
From a sociological point of view, corporate groups may be found in any
civilisation at any stage of its history. At least in theory, therefore, the existence of
firms as specific types of economic enterprises may be as old as the market itself and
from a conceptual angle the concept should not be discarded a priori. The actual
existence or importance of firms is contingent upon historical conditions and does
not depend on the stage of economic development reached by a given society.
But the cornerstone of the ‘corporation’ model today is the legal concept of
corporate capacity that establishes the corporation as a legal entity distinct from its
owners. The legal concept of the ‘corporation’ as a private enterprise with limited
liability dates from the Early Modern period and was intended to facilitate long
distance maritime trade, the Elizabethan ‘East India Company’ (1600) being the first
of its kind. Naturally, from such a viewpoint the lack of legal recognition of
corporate enterprises in the Ancient World can only be conceived as a handicap to
economic development.
However, the relevance of the corporation model itself is questionable. Formally
incorporated enterprises remained exceptional even in the Early Modern period. It
was not until the nineteenth century that the law on incorporations was sufficiently
liberalised for limited liability companies to become common. Thus, for example, the
Napoleonic ‘Code Civil’ from 1804 did not yet recognise corporate capacity.30
But the firm as a formal corporate entity does not offer the sole possible solution
to the problems of organisation of economic enterprises. In the past 20 years,
organisation experts have begun to realise the importance of informal social and
personal networks linking individuals and organisations as alternatives and
complements to hierarchically structured corporate enterprises.31

30
For a short survey see Business organisation in Encyclopaedia Brittanica XV (1974), p. 368-369.
See also FÖLDI (1996), p. 1-2; LHUILLIER (1993).
31
Cf. JOHANNISON (1994). WASSENBERG (1980); DE WILDE (1980), p. 17-194; QUINN
(1994), p. 280-281. A comparable tendency is found in political sciences where attention has shifted
from parties and factions to ‘dyadic politics’ (LANDE (1977b)).

22
23

Networks differ considerably from familiar corporate organisations. There is no


clearly defined common purpose and membership criteria are vague or wholly
absent. A network does not exist in any formal sense as a separate unit. It manifests
itself as an informal configuration of contacts that can be used to achieve particular
goals. There is no common authority and its ‘members’ are formally independent.
Each member has his own agenda for the realisation of which he is dependent on his
contacts with other members. Of course, this formal independence can obscure a
hidden factual dependency of one or more members vis-à-vis another partner – as,
for example, in the case of supply companies or in cases where one partner controls
resources that are vital to other members in the network. Economic networks are
places of co-operation and conflict; strong ‘partners’ develop offensive strategies to
control their weaker ‘friends’ who in turn develop defensive strategies to protect their
independence.
Few will dispute that the vast majority of production and distribution units in the
ancient economy were small family-run enterprises. The question remains, however,
whether and how economic activities could be organised beyond this basic level,
what the size and overall importance was of such enterprises and how they were
organised.
Finley held that ‘Households’ were the only significant production and distribution
units throughout antiquity. The finality of the ‘House’ and its internal organisation
were profoundly non-economic. Slave labour provided the only answer to the
problems of scale in the ancient economy, but even slaves usually operated from
within the household organisation. ‘Firms’ in the modern sense of the word as
organisations with a strictly economic purpose – insofar as they existed – remained
of marginal importance.32
Finley’s assertion is extreme. The existence of small to medium sized enterprises
run by slaves under the supervision of their master or supervisor (often a slave
himself) is well attested. The Pompeian wall paintings give us a clear idea of the
division of labour in fullonicae. The monument of the baker Eurysaces shows how
work in large bakeries (the remains of which can still be seen in Ostia or Pompeii)
was organised. These were ‘corporate’ enterprises by all criteria except their legal
status. They were

32
FINLEY (1973), p. 17-21; CARNEY (1973), p. 33-34. For a general theory of the ‘domestic
mode of production’ see SAHLINS (1972), p. 41-148.

23
24

well-organised enterprises with clear ‘membership’-criteria set up and organised


for a specific economic purpose.33
Nevertheless, the scale on which these businesses operated was rarely very
extensive. They seldom employed more than a dozen or so workers. To what extent
could these basic units be integrated into a larger structure? A wealthy negotiator ,
for example, could certainly own many ships and shops, but this does not imply that
the exploitation of these was co-ordinated from above and that the operation of each
fitted into a single commercial strategy. Just as a wealthy landowner could choose to
lease out his estates to large numbers of peasants instead of exploiting it himself, a
negotiator could invest in several ships, while leaving their exploitation to others. Of
course, entrepreneurs could form partnerships, but this does not in itself imply that
their respective enterprises merged into one large centrally led company.
The existence of centrally led supra-organisations has been much debated over the
past 15 years. Until the 1970s research in this field focused on partnerships
(societates) and representation by (salaried) freedmen procuratores and mandatarii.
Both formulae were considered highly inefficient because on the one hand, corporate
personality was virtually never granted to private societates (the major tax farming
companies being the exception to the rule), and on the other hand, Roman law never
recognised the principle of direct agency through free men. This conclusion was both
explained by the general underdevelopment of the ancient economy and used to
explain this underdevelopment.34
Since the 1980s, however, attention has shifted to the role of potestas relations in
the construction and operation of larger enterprises. Research has focused on the so-
called actiones adiecticiae qualitatis, which regulated the liability of the father or
master (pater dominusue) towards third parties who had contracted with his sons or
slaves. The works of di Porto, Aubert and Kirschenbaum have considerably enlarged
and deepened our understanding of the role played by slaves (and to a lesser degree
by sons in potestate) in the organisation of economic activities.35

33
On the Pompeian fulleries see ETIENNE (1977). On Eurysaces’s monument (CIL VI, 1958) see
ROSTOVTZEF (1957), p. 32.
34
see. e.g. BRUNT (1988a), p. 170; ROSTOVTZEFF (1957), p. 170-171; HOPKINS (1978), p. 53;
for a survey see PORTO (1984), p. 7-12.
35
PORTO (1984); AUBERT (1993); AUBERT (1994); KIRSCHENBAUM (1987). See also
SERRAO (1989b); PETRUCCI (1991); FÖLDI (1996).

24
25

There were four types of actiones adiecticiae qualitatis: the actio quod iussu, the
actio institoria and exercitoria, the actio tributoria and the Actio de peculio et de in
rem uerso. Which actio was available depended on whether the slave or son had been
given a specific commission (iussum), whether he acted on the basis of a general
commission (as an institor or magister nauis), whether the pater dominusue was
aware of the actions of his dependants (actio tributoria), or whether he had been
totally unaware of them (actio de peculio). Only in the cases of the actiones quod
iussu and institoria / exercitoria was the pater dominusue held liable in solidum.36
Together the actiones adiecticiae qualitatis provided a comprehensive framework
within which the liability of the pater dominusue was determined. When a slave or
son in potestate operated according to the will (uoluntas) of his master or father –
expressed in a public appointement (praepositio) – the actio institoria / exercitoria
was available that made the master or father liable in solidum. When the master or
father was unaware (insciens) of his son’s or slave’s business activities the actio de
peculio et de in rem uerso was available that made the master or father liable only for
the value of the peculium and the profit derived from it, while the claims of the
master or father against his slave or son in potestate were satisfied before those of the
other creditors. If, however, the

36
For a survey see BUCKLAND (1908), p. 166-238. For a thorough analysis see AUBERT (1994),
p. 40-100; KIRSCHENBAUM (1987), p. 31-121; PORTO (1984), p. 31-56; FÖLDI (1996). By the
second century CE the regime of the actio institoria / exercitoria was extended to situations where the
institor / magister nauis was an extraneus, either a free person or a seruus alienus. Kirschenbaum dates
the innovation to the Late Republic, Di Porto, however, does not believe this development to be any
earlier than the second century. The consequences of this innovation should not be overestimated.
Actiones adiecticiae qualitatis regulated only the liability of the pater dominusue towards outsiders and
not vice versa. Originally, liability of the contracting party towards the pater dominusue was
automatically ensured, since slaves and sons in potestate could not acquire for themselves. In the case of
an institor / magister nauis extraneus, however, the pater dominusue acquired no claims in his own
name. The extraneus (or his master) had to hand over the benefits a posteriori (and could be forced to do
so by the actio mandati or locati conducti), but the pater dominusue could not sue defrauding third
parties in his own name. Of course, this could be remedied by means of a stipulatio forcing the institor /
magister nauis to allow his principal (or any person designated by the principal) to act as cognitor. In
short, the innovation did not create the possibility of direct agency by extranei. It is hard to see how such
a scheme could have appealed much to the principal who thereby acquired the disadvantages of the actio
institoria / exercitoria without availing himself of direct agents. Most likely, the innovation was meant
for cases where a master manumitted his dependent agent. See KIRSCHENBAUM (1987), p. 142-143;
PORTO (1984), p. 37-42; AUBERT (1994), p. 91-95.

25
26

master or father was consciously aware of his slave’s or son’s business activities
(scientia) and allowed him to conduct his business as he pleased (patientia), the actio
tributoria was available. This actio was very similar to the actio de peculio et de in
rem uerso, but the father or master lost the right to satisfy his own claims before the
other creditors and was thus treated as any ordinary external creditor. When a slave
or son in potestate acted on the order of his master or father, the actio quod iussu was
available that made the master or father liable in solidum regardless of the
arrangement under which his slave or son in potestate otherwise operated.37
This basic structure could be extended horizontally by common slaves (serui
communes) and vertically by underslaves (serui uicarii). Serui communes allowed
several masters – linked to each other by societas – to participate in one or more
enterprises (negotiatio(nes)) conducted by their common slave(s). Serui uicarii
considerably increased the flexibility with which business activities could be
organised, integrating different levels of liability in one organisation and creating a
‘struttura a due piani’ (or even more ‘piani’).38 Flexibility was further increased by
the fact that peculia could also be subdivided into different merces, which insured
that an actio brought against one enterprise defined as a separate merx peculiaris did
not damage another enterprise defined as a different merx.39
According to di Porto the actiones adiecticiae qualitatis provided the necessary
legal platform for the organisation of highly sophisticated modern type
‘enterprises’40. In his view, there was no need for impersonal ‘incorporated’
organisations. The physical presence of the slave guaranteed the unity of the
enterprise and through uicarii a large hierarchically structured enterprise could be set
up, within which the most diverse economic activities could be organised without the
master ever becoming liable in solidum. The pater dominusue is thus conceived as
‘entrepreneur’, the slaves or sons as ‘managers’.
Di Porto’s thesis has received support mainly from specialists of Roman law,41 but
it has been sharply criticised by economic historians.

37
For a detailed outline see FÖLDI (1996), p. 183-184.
38
See PORTO (1984), p. 273-275.
39
Of course when one merx peculiaris was insufficient, the rest of the peculium did become liable.
See AUBERT (1994), p. 69.
40
PORTO (1984), passim. cf. also FÖLDI (1996), p. 189: ‘The quantitative level of abstraction
could hardly be increased’.
41
Cf. i.a. SERRAO (1989b); PETRUCCI (1991); CHIUSI (1993); FÖLDI (1996).

26
27

Andreau objected that  contrary to what is often claimed  juridical


arrangements do not necessarily reflect reality.42 Complex hierarchical enterprises of
the type di Porto describes are virtually unattested outside legal texts. They feature in
the writings of the Roman jurists because it was their job to explain the consequences
of the existing arrangements in complex situations, not because they occurred
frequently in reality.
The application of the concept of limited liability to the actio de peculio et de in
rem uerso is misleading. Undoubtedly the masters of a slave operating independently
with his peculium were liable only to the extent of the peculium and the profits they
derived thereof, but contrary to the situation in modern corporations these masters
were not active as entrepreneurs. Földi rightly rejects di Porto’s terminology in this
case and identifies the slave as the true entrepreneur de facto.43 This explains why the
master had the right to satisfy his own claims before those of external creditors, viz.
because he could not be held responsible for the actions of his slave. While de iure
the master was only liable to the extent of the peculium, de facto the slave
entrepreneur was liable in solidum with his peculium. When the master did intervene,
he became liable in solidum by the actio quod iussu.
Not all scholars agree to regard the actio tributoria as an actio adiecticiae
qualitatis. It is mostly held that it was available only after the actio de peculio et de
in rem uerso had proved insufficient and could, therefore, better be explained as a
specific bankruptcy procedure.44 Nevertheless, even if we do accept the actio
tributoria as a true actio adiecticiae qualitatis, the problem remains the same.
Although the master knows what business his slave is transacting, he is not involved
in the actual management of the enterprise. Therefore, he is not held fully responsible
for the actions of his slave and is consequently not liable in solidum, whereas the

42
ANDREAU (1996), p. 271-272. See also D’ARMS (1981), p. 165: ‘references to institores are
mostly confined to legal texts’. Contra see e.g. FÖLDI (1996), p. 180: ‘the actiones adiecticiae qualitatis
can ... be regarded as legal reflections of various types of ancient Roman enterprises’. See AUBERT
(1993) and AUBERT (1984), p. 117-321, 444-467 for an attempt to assess the actual importance of the
actiones adiecticiae qualitatis.
43
FÖLDI (1996), p. 181. Contra SERRAO (1989b), p. the dominus is the ‘imprenditore reale’, the
slave the ‘imprenditore nominale’. On peculium as implying a slave’s independence of action see also
GARNSEY (1981), p. 363-364; HOPKINS (1978), p. 126; FINLEY (1973), p. 64. Note that the lex
Cincia explicitly authorised gifts from a slave to his master, an absurdity were it not that the peculium
was strictly separated from the master’s patrimony, see DUMONT (1987), p. 115.
44
KASER (1955) I, p. 609; PORTO (1984), p. 54; contra see FÖLDI (1996), p. 188; CHIUSI
(1993), p. 374.

27
28

slave as actual entrepreneur is de facto (although not de iure) liable in solidum


with his peculium.
Both the actio de peculio et de in rem uerso and the actio tributoria, therefore,
limit the liability of the pater dominusue only because and insofar as the master or
father was not involved in the management of the enterprise.
The arrangement of the actio tributoria resembles what has been known since the
sixteenth century as ‘limited partnerships’ (‘société en commandite’). These are
partnerships between active partners who are in charge of the operations involved
and idle partners who provide the necessary capital without interfering in the actual
management of the enterprise. The active partners (in this case the slaves) are liable
in solidum, whereas the idle partners are liable only for their part of the capital.
Whenever any of the idle partners intervenes in the management of the enterprise, he
becomes liable in solidum. Although limited partnerships provide a rudimentary form
of limited liability, they are a long way from actual incorporated enterprises, in which
the actual entrepreneur enjoys limited liability.45
Seen from another perspective, the system of the actio tributoria was in fact even
more rudimentary than that of limited partnerships. Although the masters of a seruus
communis were each only liable to a limited extent, this limit was not determined by
their investment in the enterprise run by the seruus communis, but by the total value
of the peculium. It was only post factum that one master could reclaim his expenses
from his socii. Towards third parties each of the socii was fully liable to the value of
the peculium.46

45
cf. Business organisation in Encyclopaedia Brittanica XV (1974), p. 366-367. For the history of
limited partnership see BRAUDEL (1988-1990) II, p. 412-413. See also SERRAO (1989a), p. 9: ‘quasi
a metà strada fra la “società civile” ... e le società commerciale’.
46
Di Porto argues that Roman jurists found a solution by allowing the socius who was found liable
to sue his partners before complying with the judgement (antequam praestet) (PORTO (1984), p. 127-
130; Dig. X, 3, 15). Nothing indicates, however, that the interval within which the socius who was found
liable had to comply with the judgement was suspended in the meantime. A direct condemnatio pro
parte was only possible when both the actio pro socio and the actio communi diuidundo were no longer
possible, e.g. in the case of a seruus communis who had been manumitted and of whom one former
owner had died (see also KIRSCHENBAUM (1987), p. 114-115). SERRAO (1989b), p. 32 points to the
possibility of a slave working with several peculia separata belonging to different socii, in which case
each socius was liable only to the extent of his ‘investment’. But Dig. XV, 1, 15 (the only passage
informing us of this possibility) indicates that this situation was exceptional and probably occurred only
with clearly separable production assets, not with a mere capital investment.

28
29

Notwithstanding these critical remarks, di Porto’s work is undeniably a major step


forward in our understanding of how the Roman economy worked. It has highlighted
the entrepreneurial possibilities offered by the actiones adiecticiae qualitatis. The
tablets belonging to the Puteolean archive of the Sulpicii offer several examples of
slaves operating as managers and agents for their masters.47 Aubert’s study of the
instrumentum domesticum has shown that organisations run by institores or serui
peculiarii were quite common.48 However, there is nothing to indicate that the scale
of these organisations was normally very large.
The main problem with the proposed management model is that it is framed
exclusively withing the modern concept of the corporate enterprise. Regardless of the
existence of (proto)corporate enterprises, we encounter numerous forms of co-
operation that don’t fit the corporate management model, but that seem to have been
quite common in the organisation of supra-local economic activities.
Jean Andreau has long asserted that banks in the Roman world operated only on at
a municipal level while financial organisation on a higher level was in the hands of
‘affairistes’ tied to each other and to the aristocracy by ‘multiples liens de parenté,
d’amitié, ou même d’affaires’.49 Kirschenbaum emphasised the role played by amici
and propinqui as economic agents.50 Bürge considered ‘Nah- und Treuverhältnisse’
as the only feasible solution to the problems involved in the organisation of
economic activities beyond the household unit in the Roman financial world.
According to him, Roman business was as much determined by Gelzer’s ‘Nah- und
Treuverhältnisse’ as Roman politics were.51 Cohen asserted for fourth century
Athens that ‘the banker’s personal network of friends and his prestige as a
professional were as significant as even the possession of vast monetary resources.’52
John D’Arms emphasised the

47
Cf. SERRAO (1989b), p. 33-35; SERRAO (1989c). For the tablets see now CAMODECA (1999).
48
AUBERT (1993); AUBERT (1994), p. 210-321
49
ANDREAU (1982), p. 99. See also ANDREAU (1995a); ANDREAU (1985); ANDREAU
(1978).
50
KIRSCHENBAUM (1987), p. 160-199.
51
BÜRGE (1980) (see esp. p. 137, 151); BÜRGE (1987), p. 500-509.
52
COHEN (1992), p. 34, 65-66, 89 (p. 65 for the quotation). For a critical review see BOGAERT
(1995), who nevertheless appreciates the chapter on the importance of the banker’s relations as ‘la partie
la plus originale et la plus convaincante du livre’ (p. 605).

29
30

importance of amicitia and clientela in the organisation of commercial activities,


allowing senators to engage in business without incurring a bad reputation and
without breaking the lex Claudia that forbade senators to own trading vessels. ‘The
Romans flexibly adjusted and extended the boundaries of traditional relationships 
those of the familia, of clientela, of amicitia  in ways which gave these terms new
meaning, and gave commercial organisation new dimensions.’53
Of course, it would be wrong to claim that ‘(proto-)corporate’ enterprises54 did not
exist in the Ancient World., for example, the slave-familia of a farm clearly formed a
corporate group, acting ‘as a body’ to realise a maximum profit for their master who
had bought or bred and organised them for this purpose.55 However, everything
indicates that such ‘would-be corporate’56 enterprises operated on a local level only.
In fact, the particular circumstances of the ancient economy made this almost
inevitable. Any organisation operating on a supra-regional scale (as, for example, the
societates publicanorum) faced huge problems of communication and control.
Important decisions necessarily had to be taken locally and liability also needed to be
local in order to inspire sufficient confidence in trading partners and clients. Since
slaves had no legal capacities, this was impossible without the help of free
procuratores. This is where social networks of amici and clientes came in. They
could be relied upon as independent agents who were personally liable for the actions
they undertook on behalf of their principal, but who were entitled to claim
compensation from their principal by the actio mandati, negotiorum gestorum or
societatis. These independent agents were tied to their principal by fides  trust and
loyalty  but they were motivated by the expectation of gain from the counterfavours
bestowed on them by the principal.
Interestingly, a comparable tendency to find alternatives to the classical paradigm
of the corporate enterprise can be found in the study of other periods in history.
Hoffman, Postel-Vinay and Rosenthal showed how the French eighteenth century
financial system rested on networks of

53
D’ARMS (1981), p. 169 see also p. 42-44, 154, 165. See also FREDERIKSEN (1975), p. 166-167
for the same idea.
54
Proto-corporate because not endowed with formal corporate capacity.
55
See also the small and medium sized workshops of e.g. Pompeii and Corinth; ETIENNE (1977),
p. 147-190; JONGMAN (1988), p. 155-186; ENGELS (1990), p. 33-39 and cf. PLEKET (1990), p. 123.
56
‘would-be’ because not endowed with juridical personality.

30
31

financiers. Important loans were not offered by banks – who played hardly any
significant role as creditors before Napoleon’s reign – but by private individuals. An
organisationally crucial role was played by notaries, who acted as intermediaries
between creditors and debtors. The notaries were not formally involved in the loan,
but made up the accompanying contracts and held these as evidence in their
archives.57 The situation in the countryside in seventeenth century England
resembled that in France. Most transactions took place between persons who were
either related or knew each other well while brokers (often attorneys) were active
arranging loans between strangers.58 Both notaries and brokers were absent in the
Early Modern Swiss countryside. Here lenders and debtors had to be personally
acquainted.59
Braudel describes how traders in the late sixteenth century found a valid
alternative to partnerships in mutual services.60 Motoukias analysed personal
networks of businessmen in eighteenth century Buenos Aires and found that ‘les
réseaux de liens primaires forment l’organisation même de leurs entreprises’.61
Avner Greif analysed the Jewish trader community in eleventh century Cairo from
the viewpoint of personal networks and found that traders did not build up extended
family enterprises but formed coalitions of mutual interest with non-relatives who
were then used as overseas agents. Crucial to the working of the system was
‘reputation’. A person who acquired a reputation for being undependable or
untrustworthy was excluded and could no longer conduct his business.62
There is clearly a general tendency in recent historical research to focus more on
the economic potential of informal contacts and networks based on instrumental
friendship and it is to this tendency that I hope this book will prove a contribution. It
is imperative in my view that the economic potential of amicitia be made clear. I will
focus here, therefore, on the use of amicitia in both the fields of acquiring resources
by means of gifts, loans and legacies and of managing resources by means of agents

57
HOFFMAN & POSTEL-VINAY & ROSENTHAL (1992); HOFFMAN & POSTEL-VINAY &
ROSENTHAL (1994). Note the resemblance with the ancient faeneratores ANDREAU (1985);
ANDREAU (1978); ANDREAU (1983); VERBOVEN (1993a).
58
SPUFFORD (1994); ANDERSON (1972).
59
PFISTER (1994).
60
BRAUDEL (1988-1990) II, p. 137-139.
61
MOUTOUKIAS (1992), p. 889.
62
GREIF (1989b); GREIF (1991).

31
32

(mandatarii and procuratores), partners (socii) and influential ‘contacts’


(commendationes).
In the end I hope to show that the Roman elites, both imperial and municipal,
organised their patrimonies not by making use of formal organisations, such as banks
or investment companies, but by means of their extensive personal networks and
their ‘friendships’ with important negotiatores and faeneratores. These in their turn
relied on their networks extending throughout the Mediterranean to manage their
manifold interests and those of their amici maiores. The social networks of
aristocrats and businessmen thus served as a superstructure into which the
innumerable small family or slave based enterprises were integrated.

32
33

Part I the nature of amicitia

33
34

[leeg blad]

34
35

THE MORAL MATRIX OF FRIENDSHIP.

Amicitia was an ambivalent relationship. On the one hand, it assumed sincere


mutual affection and altruism, on the other hand, it involved the exchange of
substantial mutual services. Although these services were offered as favours with no
strings attached, they were often the actual ‘raison d'être’ of the relationship. The
tension between altruism and advantage was controlled by a behavioural code.
Friendship was ideologically construed around a set of ethical norms. This moral
‘matrix’ of friendship centred around four prime values: liberalitas or benignitas,
gratia, fides and beneuolentia or amor. The matrix was upheld by a fifth basic value,
viz. honour or reputation (existimatio, dignitas).

1.1 Liberalitas / benignitas & beneficia / officia.


According to Cicero  following Panaetius  liberalitas / benignitas came next to
iustitia in the scale of virtues that held society together. Whereas iustitia was a
passive virtue making a person abstain from evil, liberalitas / benignitas was an
active virtue that incited a person to do good.63
Liberalitas was the virtue ‘par excellence’ of a Roman aristocrat.64 Although the
term gradually acquired the specific meaning of ‘generosity’, it had originally a
much wider application. Cicero advised that liberalitas be shown by efforts (opera)
rather than by gifts of money.65 The word itself was taken over from the Greek
eleutheriotès early in the second

63
CICERO, Off. I, 20; iustitia and liberalitas are considered as fontes officii next to cognitio,
magnitudo animi and decorum; cf. DYCK (1996), p. 106.
64
Cicero and Sallust considered liberalitas as part of the mos maiorum. This doesn’t necessarily
mean that it was an archaic value (cf. infra), but it does imply that it was an important part of the
education of a young aristocrat in the Late Republic. SALLUST, Cat. 7, 6; CICERO, Clu. 196; Mur. 77;
for liberalitas in general see KLOFT (1970), p. 5-72; HELLEGOUARC’H (1963), p. 215-221; VEYNE
(1976), p. 15-20, 31-35 (but see SALLER (1991) and TARTARIN (1980)); MICHEL (1962), p. 480-
529; BERVE (1926); HANDS (1968), p. 44-45.
65
CICERO, Off. II, 52-53; on Cicero’s conception of liberalitas see DYCK (1996), p. 155-156.

35
36

century BCE and soon became a virtual synonym of the much older benignitas.66
Cicero coined a third synonym: beneficentia.67 All three denoted ‘the disposition
from which the act of conferring a beneficium (was) derived’,68 signifying the
voluntariness and sincerity of the benefactor. The concept of liberalitas / benignitas
thus expressed a fundamental altruism.69 Beneficia were conceived as acts of
kindness with no strings attached. ‘Whoever gives beneficia imitates the gods,
whoever asks for a return (imitates) usurers.’70
The principle implied that a return gift was, in its own right, considered as a
beneficium derived from a pure and sincere benignitas.71 However, this was
ideology. In reality liberalitas / benignitas and gratia were as two sides of a coin. A
favour both expressed liberalitas and called for gratia. Favours and gifts inevitably
gratified those who received them., obliging them to reciprocate or to prove
ungrateful. It was an old complaint, found already in Plautus, that beneficia were
given only to those who could reciprocate.72
In order for the mechanism to work it was imperative that beneficia were given to
the right persons who would show the proper gratia. Cicero

66
There is much disagreement about whether liberalitas was an archaic Roman value. KLOFT
(1970), p. 35-37, 44-46 shows that the term was borrowed from the Hellenistic kingdoms, but this need
not mean (as Kloft believes) that the concept as such was unknown. The term benignitas is much older
and is clearly used by Plautus in its ‘Ciceronian’ sense of ‘a disposition generating beneficia’. That the
concept was in conflict with the supposedly original Roman value of parsimonia – as argued by Kloft
loc. cit. – is only correct insofar as gifts of money are concerned. Note that parsimonia occurs only 5
times in Plautus (one of which as euphemism for auaritia), whereas benignitas occurs 12 times.
67
CICERO, Off. I, 20: beneficentia quam eandem uel benignitatem uel liberalitatem appellari licet.
The word didn’t become very popular until the Christian era, see HELLEGOUARC’H (1963), p. 215-
222.
68
MANNING (1985), p. 73; for the similar meaning of see BOLKESTEIN (1939),
p. 143.
69
cf. ANNAS (1977) for the norm of altruism in ; compare LANDÉ (1977a), p. xiv;
CAMPBELL (1964), p. 253.
70
SENECA, Ben. III, 15, 4: Qui dat beneficia deos imitatur, qui repetit, faeneratores. See also
SENECA, Ben. I, 2, 3; 6, 1; CICERO, Am. 31: Neque enim beneficium faeneramur, sed natura propensi
ad liberalitatem sumus; cf. MICHEL (1962), p. 526-527; HANDS (1968), p. 44-45; compare
MACHEREL (1983), p. 152.
71
cf. CICERO, Off. I, 48.
72
PLAUTUS, Men. 571-579; cf. DAMON (1997), p. 63-65. See also ARISTOTLE, Eth. Nic. VIII,
13, 8 (1162b34); CICERO, Off. II, 69: sed quis est tandem, qui inopis et optimi uiri causae anteponat in
opera danda gratiam fortunati et potentis?; cf. DYCK (1996), p. 456-457. For the role of beneficia in
amicitia in Plautus see now RACCANELLI (1998), p. 19-40, 189-197.

36
37

quotes Ennius saying: ‘Good deeds badly placed, methinks are bad deeds’.73 True
beneficence, according to Cicero, rested on a ‘choice of worthiness’ (dilectus
dignitatis) in which both the character of the receiver (mores) and also his disposition
towards, relationship with and past services shown to the giver would be
considered.74
Conversely, those who were worthy had a moral right to receive beneficia. This
implied that most beneficia were at the same time officia and that liberalitas /
benignitas towards friends, relatives, dependants and benefactors was a duty.
Accordingly, we see that the terms beneficia and officia were largely
interchangeable.75

1.2 Gratia.
The counterpart of benignitas / liberalitas was gratia. Whereas benignitas /
liberalitas was the disposition producing beneficia, gratia was the disposition
ensuring a response to beneficia. The overall importance of reciprocity ethics in the
Ancient World is long acknowledged and need not be argued any further here.
Suffice to say that reciprocity was a central principle governing interpersonal
relations in the Ancient World. The offer of a gift or a favour carried with it the
imperative appeal for a counter-gift or -favour. Nearly 700 years before Cicero,
Hesiod had emphasised the importance of reciprocating favours with counter-favours
of at least equal importance. Cicero himself claimed that ‘no duty is more imperative
than that of returning gratia … not to return is not allowed for

73
CICERO, Off. II, 62: Bene facta male locata mala facta arbitror. See also CICERO, Off. II, 63:
Quod autem tributum est bono uiro et grato, in eo cum ex ipso fructus est, tum etiam ex ceteris;
SENECA, Ben. I, 2, 1; PUBLILIUS SYRUS, Sent. B33 (ed. Meyer): beneficium dignis ubi des omnes
obliges.
74
CICERO, Off. I, 45; cf. VALERIUS MAXIMUS IV, 8: liberalitas derives from two sources:
uerum iudicium et honesta beneuolentia; cf. PRELL (1997), p. 266-269.
75
cf. SENECA, Ben. III, 18, 1: some distinguish between beneficia, officia, ministeria, refuted ibid.
3, 19-38; note that Cicero translates the Greek with the Latin officium, whereas Servius in
his commentary on Vergil used to explain the Latin beneficium. See SALLER (1982), p.
15-21; on the degrees of obligation in liberalitas / benignitas see CICERO, Off. I, 50-58; II, 58; cf.
DYCK (1996), p. 440; PLINY, Epist. IX, 30; cf. MICHEL (1962), p. 521.

37
38

an honourable man (uir bonus).’76 Veyne aptly describes ‘le don’ in the Ancient
World as a ‘bakchich élevé à la hauteur d’une institution.’77
The return of a favour did not end obligations existing between giver and receiver.
On the one hand, the debt of gratia was not extinguished by a counter-favour. On the
other hand, a counter-favour itself had to be reciprocated. A beneficium entailed a
commitment on the part of the giver. It symbolised a personal relationship and,
therefore, served as a pledge for future beneficia. The result – and often the object of
this chain of mutual favours – was the establishment of a more or less lasting
personal relationship. It was a typical feature of amicitia that friends continually
owed each other return favours.78 Beneficia brought giver and receiver nearer to each
other. They became bound by gratia or beneficiis deuincti.79 This idea of ‘binding’
friends by means of gratia shows how gratia was not so much considered as the
objective act of returning favours, but as a general sense of gratefulness that would
inevitably lead to a return favour.80
Philosophers often argued that amicitia rested on amor and not on gratia, but at
times they echoed more vulgar opinions. Thus Seneca inadvertently speaks of the
most sacred law of beneficia from which amicitia is derived. He warns his readers to
be more careful about from whom they would accept beneficia than about from
whom they would accept a loan.

76
CICERO, Off. I, 48: nullum ... officium referenda gratia magis necessarium est ... non reddere
uiro bono non licet. HESIOD, Op. 349-350. See also ibid. 342-351, 364-367, 407-409; CICERO, Off. II,
15 Brut. 15; Att. XIII, 12, 3; for reciprocity as a pervasive aspect of ancient literature: see e.g. HOMER,
Il. IV, 257-260; Od. I, 374-375; ARISTOTLE, Eth. Nic. V, 5, 1 (1132b21); 7 (1133a3-6); IX, 2, 3
(1164b31); SENECA, Ben. I, 4, 2; IV, 13, 3; 21, 1; 21, 5; VI, 14, 4; CATO, Agr. V, 2.
77
VEYNE (1976), p. 15. On reciprocity in the ancient world see e.g. BENVENISTE (1948-1949);
BÖLKESTEIN (1939), p. 156; DIXON (1993); FINLEY (1977), p. 64-66, 120-123; FINLEY (1981);
FINLEY (1974), p. 31; GALLANT (1991), p. 143-153; HERMAN (1987), p. 73-82 (and passim);
LENDON (1997), p. 63-69; MICHEL (1962), p. 449-601; MILLETT (1991), p. 27-44 (and passim);
MOUSSY (1966), p. 475-477; POLANYI (1957a), p. 79; SALLER (1982), p. 8-39, 143; TANDY
(1997), p. 94-101..
78
HANDS (1968), p. 26; MICHEL (1962), p. 449-468; GALLANT (1991), p. 144; cf. PLINY,
Epist. III, 4, 6; cf. also
79
cf. e.g. CICERO, Fam. X, 8, 3; XI, 16, 2; XIII, 18, 2; 27, 2; 64, 2; Q. fr. II, 12 (14), 3; III, 1, 16:
Att. XVI, 16b, 9; Cat. IV, 10, 2; Planc.73; 81; Off. II, 65; 69 (cf. DYCK (1996), p. 456-457; Phil. XIII,
4, 7-8; Clu. 190; SENECA, Dial.VII, 24, 2 (Vit. Beat.); cf. MOUSSY (1966), p. 359-360; COSTA
(1911-1919) I,, p. 136-138.
80
cf. FOSTER (1977), p. 23: ‘A functional requirement of the system (sc. of dyadic contracts) is that
an exactly even balance between partners never be struck. This would jeopardise the whole relationship,
since if all credits and debits somehow could be balanced off at a point in time, the contract would cease
to exist.’

38
39

Once a loan was repaid the debt dissolved, but the debt of gratia could never be
extinguished: ‘For I owe (still) when I have returned, start again, but friendship
stays.’81
Although the ideals of voluntariness and altruism connected to both benignitas /
liberalitas and gratia were widely fostered the system was highly prone to
manipulation. Authors such as Martial, Horace and Pliny describe gifts as baits on an
angler's hook.82 It is no coincidence that Cicero’s letters of recommendation use the
prospect of gratia and a return favour to persuade the addressee to grant a request.83
The attitude toward beneficia and gratia, therefore, was highly ambiguous as people
could be both motivated by altruïsm and self-interest.84
A remarkable feature of reciprocity ethics in most cultures is that they are
competitive. A gift or favour should not only be returned, but the return should
ideally be worth at least as much or more. A Roman saying claimed that ‘it is
disgraceful to be outdone by acts of kindness’.85 Whenever someone was unable to
return a favour of equal value he lost the game and became tied to his benefactor. ‘To
accept a kindness (beneficium) is to sell your liberty’, wrote Publilius Syrus.86 It was
vital that a more or less equal balance of debits and credits could be maintained. If
not, the relationship became asymmetrical and patronal.

1.3 Fides
Amicitia belonged to what Gelzer called ‘Nah- und Treuverhältnisse’:
relationships based on fides.87 Fides is both an easy  because universal

81
SENECA, Ben. II, 18, 5: debeo enim cum reddidi, rursus incipere, manetque amicitia. Compare
SAHLINS (1972), p. 186: ‘If friends make gifts, gifts make friends’.
82
MARTIAL V, 18, 7-10; HORACE, Epist. I, 7, 73; Serm. II, 5, 25; PLINY, Epist. IX, 30; cf.
SHERWIN-WHITE (1966), p. 513; cf. also PUBLILIUS SYRUS, Sent. B37 (ed. Meyer): Beneficia
donari aut mali aut stulti putant. Mali are those who are ungrateful, stulti are those who don’t recognise
the true object of their benefactors.
83
cf. e.g. CICERO, Fam. XIII, 65, 2; Att. XVI, 16a, 5.
84
See e.g. DIXON (1993), p. 452 who speaks of ‘apparent disparities between the overt and actual
codes of behaviour’.
85
SENECA, Ben. V, 2, 1: turpe esse beneficiis uinci. See also ibid. I, 4, 3; CICERO, Off. I, 48; Fam.
VII, 31, 1; on the competitiveness of gift-exchange cf. MAUSS (1923-1924), p. 38-40; MACHEREL
(1983), p. 162-164; MICHEL (1962), p. 452-453; HANDS (1968), p. 26-27.
86
PUBLILIUS SYRUS, Sent. B5 (ed. Meyer): Beneficium accipere libertatem est uendere. See
SAHLINS (1972), p. 133: ‘”Gifts make slaves”, the Eskimo say, “as whips make dogs”’.
87
GELZER (1912), p. 71; GELZER (1960), p. 164; cf. BRUNT (1988b), p. 355-360.

39
40

 and a complex concept  because applicable to widely diverse situations. Its


original meaning seems to have been ‘trust’, both in an active sense  the trust put in
someone  and in a passive sense  the trust enjoyed by someone and hence the
disposition deserving trust. This trust is based on loyalty and solidarity, manifest in
the acknowledgement of personal obligations (officia).88
As with gratia, fides was a broad concept, not limited to personal relations. Fides
was conceived as crucial to the whole of social life. According to Cicero fides was
the fundamentum iustitiae.89 There was a communis fides owed to all mankind and a
specific fides owed to fellow citizens. Fides underlay and guaranteed both
international treaties between states and common commercial contracts between
merchants. It expressed both a debtor’s solvency and his credibility.90
Most of all, however, fides served as the cement of personal relations. As such it
was the true core of Roman friendship.91 Cicero describes it as the firmamentum
stabilitatis constantiaeque of amicitia.92 As a city without a port cannot be a safe
haven to ships, so a soul with no fides cannot be steadfast for friends.93
Fides guaranteed that all kinds of obligations were upheld. Thus it manifested
itself among other things in the scrupulous upholding of obligations derived from
gratia. Any beneficium / officium could be construed as an expression of fides. As
such, it may be said that fides generated and supported the obligations inherent in
amicitia.94
Moreover, gratia and fides were inextricably linked. A favour or gift was never
supposed to be reciprocated immediately because this would extinguish the
reciprocity ‘debt’ that bound the amici together. Therefore, gratia implied a time lag,
but even when a return gift had been made gratefulness was not supposed to end.95
Thus ideally gratia was a

88
cf. FREYBURGER (1986), passim; HELLEGOUARC’H (1963), p. 23-25.
89
CICERO, Off. I, 23.
90
cf. FREYBURGER (1986), p. 115-166; for fides in commercial contracts see BERGER (1953), p.
471; IMBERT (1959), passim; cf. GELLIUS XX, 1, 41; CICERO, Off. II, 40; but cf. already
DEMOSTHENES, Phorm. (XXXVI) 44.
91
cf. e.g. CLAUDIUS CAECUS, Sent. 249 (ed. Ribbeck): amicitiae unica est fides coagulum. See
also BRUNT (1988b), p. 355.
92
CICERO, Off. I, 65.
93
CICERO, Inu. I, 47: Nam ut locus sine portu nauibus esse non potest tutus, sic animus sine fide
stabilis amicis non potest esse; cf. also PLAUTUS, Merc. 839.
94
cf. CICERO, Fam. III, 9, 1; Marc. 14; PLAUTUS, Trin. 1128.
95
SENECA, Ben. IV, 40, 5; cf. RACCANELLI (1998), p. 34; a general feature of reciprocity in all
cultures, cf. MAUSS (1923-1924), p. 91-93; MACHEREL (1983), p. 152-153.

40
41

durable disposition that required mutual trust and feelings of solidarity – in other
words fides. On the one hand, fides could be regarded as the trust put by one partner
in the other’s benignitas and gratia. On the other hand fides implied solidarity and
had to be shown in officia that would inevitably generate gratia. Thus gratification
was both cause and effect of fides.

1.4 Beneuolentia / amor


Most scholars agree that amicitia and philia denoted relations based primarily on
instrumental reciprocity obligations in which affection played only a secondary
role.96 In sociological terms amicitia is seen as a ‘dyadic alliance’, formed
voluntarily between free and independent partners, and based on reciprocity and
personal loyalty.97
Recently, however, Konstan has challenged this prevalent opinion. Although he
acknowledges the importance of the principle of reciprocity in the Ancient World,
Konstan claims that ‘relations among friends … appear to be precisely the area that is
exempt from such expectations of a fair return. … (philia) constituted in principle, as
modern friendship, a space of personal intimacy and unselfish affection distinct from
the norms regulating public and commercial life’. Konstan concedes that the terms
amicitia and philia could be used to cover up relations of dependence or mutual
advantage, but, according to him, this is hardly relevant for the true nature of
friendship in the Ancient World, since we too use the term ‘friendship’ for a wide
variety of social relationships which we are well aware are by no means true
friendships.98
Konstan is aware, of course, that instrumental friendship is much more common in
history than ‘modern’ emotional friendship.99 But in his

96
MICHEL (1962), p. 446-601; HANDS (1968), p. 33; MILLETT (1991), p. 109-127; ADKINS
(1963); GALLANT (1991), p. 142-169; ROULAND (1979), p. 13-15; SALLER (1982), p. 11-15;
SALLER (1989); MOUSSY (1966), p. 357-406; FIORE (1997), p. 66-67, 71-73; SCHROEDER (1997),
p. 38-39; MITCHELL (1997), p. 1-21; more critical: BRUNT (1988b).
97
LANDÉ (1977a), p. xiii-xiv; FOSTER (1977).
98
KONSTAN (1997), p. 82; on the author’s view on friendship in the classical world see also
KONSTAN (1995); KONSTAN (1996) Contra Konstan see RACCANELLI (1998), p. 19-22.
99
Among historical studies cf. e.g. KETTERING (1986; KETTERING (1992) (on seventeenth
century France); KOOIJMANS (1992) (18th c. Holland); for instrumental friendship in sociology as a
common type of relationship see WOLF (1966), p. 10-13; LANDÉ (1977a); EISENSTADT &
RONIGER (1984), p. 6-18, 269-293; CAMPBELL (1964), p. 224-238; BOISSEVAIN (1966), p. 22.

41
42

view both the Ancient World and modern society ‘perhaps for entirely different
reasons – did produce a space for sympathy and altruism under the name of
friendship that stands as an alternative to structured forms of interaction based on
kinship, civic identity, or commercial activity.’100
Konstan’s theory goes against many crucial texts from the ancient sources.
Aristotle, for example, claimed that although perfect philia was based on love for the
absolute Good ( ) and the virtue ( ) of benevolence ( ), most
philiai were actually based on utility ( ) or pleasure ( ) and
lasted only as long as they were useful or pleasant. Significantly, however, Aristotle
expressly refused to restrict both the term and the concept of philia to perfect philiai
because this would be too much in conflict with phenomenal reality
( ).101 The deadlock in Plato’s Lysis arises from
precisely the conflicting images of philia as a relationship based on utility and one
based on affection.102 Terence speaks of ‘procuring friends through a kindness’.103 A
letter from Fronto to M. Aurelius expressly distinguishes amor form amicitia by
saying that the latter exists only through the exchange of officia, whereas the former
arises rather from impulse than calculation.104 In his De Inuentione Cicero claims that
some people believe that amicitia is desirable only for its usefulness, others for itself
only, again others for itself and its usefulness.105 It is true that Cicero claims in the
Laelius that true amicitia is not fostered spe mercedis but is based on mutual
affection and sought after for its own sake, as beneficentia and liberalitas are
desirable for their own sake and not for the gratia they engender. But, Aulus Gellius
relates how Cicero’s words were criticised as ambiguous because the motives behind
liberalitas and beneficentia were themselves dubious. Significantly, Gellius
concludes that

100
KONSTAN (1997), p. 5-6.
101
ARISTOTLE, Eth. VIII, 4, 4 (1157a26-36); Eth. Eud. VII, 1-2 (1234b1-1238b14); refusal to
restrict the term: Eth. Nic. VIII, 4, 4-5 (1157a26-34); Eth. Eud. VII, 2, 22-23 (1236b21-27); cf. Eth. Eud.
VII, 2, 11-13 (1236a24-30); for Konstan’s analysis of Aristotle’s ideas on friendship see KONSTAN
(1997), p. 67-78.
102
on the Lysis cf. ANNAS (1977), p. 532-539; VERSENYI (1975); SCOLNIKOV (1993).
103
TERENCE, Eun. 148: parere amicos beneficio.
104
FRONTO, Ad. M. Caes. I, 3, 5.
105
CICERO, Inu. II, 167.

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43

Cicero spoke of beneficentia and liberalitas in a philosophical sense only.106


Konstan’s interpretation is built on the idea that the abstract noun philia had a
much wider application than the concrete noun philos. Whereas the former would
‘cover so wide a range of relations as to be effectively a different concept’, the latter
would simply be the Greek equivalent of the English ‘friend’, with all its modern
notions of sincere mutual affection attached. Therefore, although the Greeks had a
word for ‘friend’, they did not have a word for what we call ‘friendship’ (although
the same type of relationship – according to Konstan – did exist).107
Konstan is right in emphasising that Greek philia had a much wider meaning than
English ‘friendship’, but this was never an issue in the debate about Greek
‘friendship’. One can even accept that the word philoi specifically denoted those who
where linked by philia alone (and not, for example, by family ties as well).108
However, in my view, Konstan fails to show that the kind of philia binding philoi –
what we would call ‘friendship’ – was in Aristotle’s eyes (and those of his followers)
not also of three different kinds, viz. instrumental, hedonistic or based on virtue.
The extension of Konstan’s ideas on Greek friendship to the Roman world is even
harder to follow. Latin has a distinct word for friendship – amicitia – and the texts I
have referred to in this chapter so far clearly show that favours, reciprocity and
personal loyalty were considered crucial for the existence of any amicitia.
Nevertheless, Konstan’s revaluation of the affectionate element in ancient
friendship should not be entirely discarded. However instrumental actual amicitiae
may have been, amicitia was expressed in emotional terms and a certain minimum of
affection was expected. The incessant recourse to emotional terms in, for instance,
Cicero’s letters of recommendation shows that affection was part and parcel of
amicitia.109

106
cf. CICERO, Am. 30-31; GELLIUS XVII, 5, 1-14.
107
KONSTAN (1997), p. 68; for the idea that amicitia / cannot be adequately translated by
‘friendship’, cf. e.g. SALLER (1983), p. 256; MILLETT (1991), p. 114; ANNAS (1977), p. 532.
108
Although certainly not so rigidly as Konstan assumes, see e.g. ARISTOTLE, Eth. Nic. VIII, 1, 4
(1155a26-27):

109
SALLER (1982), p. 12; affection was expected even in case of municipal patronage, cf.
DUTHOY (1984), p. 12; cf. also ADKINS (1963), p. 33: ‘undoubtedly anyone who uses of a
person or thing does so in virtue of an emotion which he feels for that person or thing.’. See also
MITCHEL (1997), p. 8-9. For amor see e.g. CICERO, Fam. I, 8, 2; II, 1, 2; IV, 5, 6; V, 15; 15; 17, 5; 20,
9; VII, 2, 1; 8, 2, ; IX, 11; 15; 16; X, 5; 24, 1; XI, 20, 1; 20, 4; 27; XII, 29; XIII, 7; 29; 50, 2; XIV, 1;
XVI, 1, 3 (these are merely a few examples out of a total of 123 in the Ad Familiares alone!).

43
44

However, affection – like gratitude – is not only an internal psychological quality,


but also a social norm. Our affections, like our actions, are subject to social pressure.
Thus, for example, children are expected to love their parents, while parents are
expected to love their children. The socialisation processes forming us, ‘teach’ us
whom we are to love in what way. Affection in philia and amicitia was also subject
to such social norms. Philoi and amici were expected to feel affection for one
another. Of course, this affection could be feigned, but so could gratia. What matters
here is that the norm of affection was very real.
This norm of affection was not opposed to the norms of reciprocity and personal
loyalty. On the contrary, the norm of affection was itself inherent to gratia as a
response to favours received. Amor was thus owed in response to beneficia. In his
Panegyric to Trajan, Pliny the Younger claimed that the emperor had so great a
capacity to put his friends under an obligation that only an ingrate could fail to love
him.110 Seneca noted that this love-in-response-to-favours was part of the natural
order of things, since even wild beasts were brought to love those who cared for
them. Of course, friendly affection had in turn to be shown by beneficia that would
kindle gratia in the receiver.111
So although emotional friendship can (and should) be distinguished from
instrumental friendship from a conceptual and motivational point of view, from a
normative point of view affection and utility coincide in the institution of friendship
as it emerges in the Greek and Roman world.
In this respect, ancient society was in no way unique. In fact, the norm of affection
is a general feature of instrumental friendship observed in a wide variety of cultures.
‘A minimal element of affect remains an important ingredient in the relation. If not
present, it must be feigned. When the instrumental purposes of the relation clearly
take the upper hand, the bond is in danger of disruption’.112 Sharon Ketting and Luuc
Kooijmans

110
PLINY, Pan. 85, 8: tibi amicos tuos obligandi tanta facultas inest, ut nemo te possit nisi ingratus
non magis amare.
111
SENECA, Ben. I, 2, 5; cf. also CICERO, Am. 29; Fam. XIII, 60, 1; FRONTO, Ad M. Caes. I, 3,
4; PLAUTUS, Trin. 438-439; RACCANELLI (1998), p. 21, 37-40. Compare also VALERIUS
MAXIMUS V,4,7 on love towards parents as the prima naturae lex.
112
WOLF (1966), p. 13; cf. EISENSTADT & RONIGER (1984), p. 6-18, 269-293; LANDÉ
(1977a), p. xxix.

44
45

noted the importance of affection in patronage and instrumental friendship in


Early Modern France and Holland.113
Far from having an exclusively emotional or instrumental content amicitia and
philia were complex relationships in which reciprocity, affection and personal
loyalty were mingled and advantage and altruism intertwined, together producing
and being produced by beneficia. It was precisely this mixture of different aspects
that makes it so hard for Socrates in Plato’s Lysis to come to grips with the concept
of philia. Whoever loves another favours the one he loves, and whoever is favoured
loves the one who favours him. Aristotle’s new paradigm of philia for the first time
successfully (but unrealistically) distinguished between utilitarian and hedonistic
friendship on the one side – based indirectly on self-love – and perfect or true
friendship on the other side – based on love for what is good ( ) in others.
From here, it was a small step to Cicero’s opposition between amicitia based on
utility and amicitia based on amor.114
In everyday life, such philosophical distinctions hardly mattered. To receive a
beneficium was gratifying and had to kindle both amor and gratia. Although it is true
that the concepts of amicitia and philia signified relations of sincere affection, this
affection itself cannot be understood in isolation from reciprocity and personal
loyalty. Overall, we should beware of being too sceptical. Aren’t we all sincerely
pleased when we receive a kindness? As Seneca remarked, the norm of affection as a
response to kindness may very well be an innate quality of humans as social beings.
Manipulation was possible only because the norm of affection – as that of reciprocity
– was generally acknowledged.

1.5 Existimatio and dignitas.


Liberalitas / benignitas, fides, gratia, and beneuolentia / amor form the ethical
framework of amicitia, regulating the exchange of beneficia / officia

113
KETTERING (1986), p. 13-14, 18-19; KOOIJMANS (1992), p. 48.
114
Cf. in this sense DIONYSIUS HAL. VIII, 34, 1:

Note that Aristotle does not claim that affection is absent from
utilitarian or hedonistic , all types of consist of an , (Eth.
Nic. VIII, 3, 1 (1156a6-10)) The typology is based on the reason why friends love each other (cf.
KONSTAN (1997), p. 72-73). For Aristotle’s ideas on friendship in general see SCHROEDER (1997);
MILLETT (1991), p. 109-112; for Cicero’s ideas see CICERO, Am. 19, 26; Fin. I, 65-72; II, 78-85;
FIORE (1997); BRUNT (1988b), p. 351-360; SANSEN (1975), p. 240-263; MICHEL (1962), p. 507-
511.

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46

and justifying and explaining social action. But how could this framework itself be
upheld? If amicitia is based on advantage, then why foster it when this advantage
disappears? The Epicurean’s answer was: ‘So that I would not incur ill will (odium)
when I stop to support a friend’.115 In other words: because the reputation of a person
depended on his respecting the ethical imperatives of amicitia.116
The importance attached to reputation (existimatio, fama) in ancient Rome is well
known. The social identity of a notable rested on his existimatio and dignitas.117
According to Cicero, if a man lost his reputation, he was worse than dead.118 Seneca
the Elder tells the imaginary story of a murderer whose status and political influence
placed him above the law. The victim’s son had no option but to follow his father’s
murderer in mourning through the streets day after day. In the end, the murderer’s
existimatio suffered so much that he shamefully lost a subsequent election against all
odds. Of course the story is ‘too good to be true’, but it does show how existimatio
was conceived of as crucial to a person’s social position and a potential means of
pressure. The concept thereby functioned as a social control mechanism.119
The ethical framework of amicitia served as a reference map with which to
position oneself and others in society. The ‘good man’ was gratus, fidus and liberalis
/ benignus. Whoever proved himself ingratus or infidus hurt his existimatio and
thereby his social position. The consequences were not only psychological. A
reputation for illiberalitas, ingratia or infidelitas made someone a less interesting
partner in which to ‘invest’ beneficia.120
Callistratus defined existimatio as dignitatis inlaesae status (Dig. L,13,5,1,pr.).
Dignitas indicated a person’s elevated social rank based mainly on prestige.121
However, just as the English ‘dignity’ is not necessarily

115
CICERO, Fin. II, 79: Ne in odium ueniam, si amicum destitero tueri.
116
see BLEICKEN (1981), p. 245; NICOLS (1980), p. 366; DIXON (1993), p. 455; the link
reputation - social identity - reciprocity / friendship / patronage is common in many different cultures:
see already MAUSS (1923-1924), p. 91-94; esp. PITT-RIVERS (1977); cf. also EISENSTADT &
RONIGER (1984), p. 212-213; KETTERING (1992), p. 143-145, 156.
117
cf. HELLEGOUARC’H (1963), p. 362-364; LENDON (1997), p. 31-52. On honour and social
identity compare PITT-RIVERS (1977), p. 2.
118
CICERO, Quinct. 49; 98; Rosc. Com. 16.
119
GARNSEY (1970), p. 216-217; KELLY (1966), p. 49-50; COTTON (1986), p. 454.
120
cf. MICHEL (1962), p. 589-590.
121
cf. HELLEGOUARC’H (1963), p. 389-401; MRATSCHEK-HALFMANN (1993), p. 86
(‘gehobene Stellung aufgrund eines anerkanntes Prestiges’); GARNSEY (1970), p. 224-225; ALFÖLDY
(1986a), p. 413-414, 418-420; ALFÖLDY (1986b), p. 445-446; NICOLET (1966-1974), p. 236-241; cf.
also FINLEY (1973), p. 35-61.

46
47

a monopoly of the higher status levels, dignitas too had a much wider meaning.
The term could be used, for example, to indicate a woman’s or a young man’s sexual
integrity.122 Ulpianus even used the expression dignitas manciporum (Dig.
VII,1,15,2). Cicero emphasised the ethical foundations of the concept: ubi autem est
dignitas, nisi ubi honestas? (Att. VII,11,1). Honestas in turn was a broad concept,
denoting integrity or virtue and comprising among other things fides and gratia. Thus
Cicero could speak of a dilectus dignitatis in choosing upon whom to confer
beneficia.123
The concept of dignitas belongs to the semantic field of the typically
Mediterranean concept of ‘honour’, as defined by Pitt-Rivers. Or, as Saller put it:
‘The most basic premise from which the Romans started was that honour and
prestige derived from the power to give what others needed or wanted.’124 Dignitas
was not so much an inner quality acquired by a person as a social quality conferred
upon a person. Dignitas was basically the quality of a person inspiring respect and
deference in others. As such the concept relied on fides and gratia, because a person
unable to uphold officia derived from fides and gratia could no longer command
respect and lost his dignitas. Consequently, a person unable to reciprocate, who was
beneficio obligatus, yielded in dignitas to his benefactor.125 Dignitas had to be earned
by the performance of beneficia testifying to a person’s liberalitas / benignitas. In
such a train of thought

122
PETRONIUS 18, 6; 106, 4; cf. TERENCE, Heaut. 574-576. On the link between sexual integrity
and honour, notably of women see McGINN (1998), p. 10-14, 311-316.
123
CICERO, Off. I, 45 (cf. ibid. I, 42). Dignitas is a favourite term of Cicero, used 934 times in his
works, of which 274 time in his letters, compared to 42 occurrences in Pliny’s work, 17 in Fronto and
only 60 in Livy (counted in the PHI#5 CD-ROM).
124
SALLER (1982), p. 126. See also DIXON (1993); MACMULLEN (1986), p. 519-524;
HELLEGOUARC’H (1963), p. 393-396, 407; LENDON (1997), p. 63-69; FREYBURGER (1986), p.
47, 57. For the Mediterranean concept of honour cf. PITT-RIVERS (1977); CAMPBELL (1964), p.
268-274; EISENSTADT & RONIGER (1984), p. 74-77, 21-214; GUERREAU (1993); MOUTOUKIAS
(1992), p. 902; HORDEN & PURCELL (2000), p. 485-523. The link between status and generosity /
reciprocity is also found in many ‘primitive’ cultures, see SAHLINS (1972), p. 133, 207-208.
125
Compare PITT-RIVERS (1977), p. 3. For the transposition of the these ideas on the international
level see now MATTERN (1999), p. 171-210. See also Dig. IL, 15, 7, 1: clientes nostros intellegimus
liberos esse, etiamsi neque auctoritate neque dignitate neque uiri boni nobis praesunt. This explains
why notables shunned the name of clients: cf. BRUNT (1988c), p. 395; SENECA, Ben. II, 23; CICERO,
Off. II, 69; DYCK (1996), p. 457-459; CAESAR, B.C. III, 18, 4.

47
48

poverty implied the absence of honour.126 Conversely, dignitas as a social concept


depending on prestige was vulnerable to insults and had to be defended thus
legitimising vengeance and violence. Retaliation could be seen as just another aspect
of reciprocity: quid pro quo.127
The efficiency of dignitas and existimatio as social control mechanisms should not
be overestimated. Reputation relies more on appearance than on fact, is easily
manipulated and is often more vulnerable to gossip and lies than to truth, while on
the other hand power or money can easily enforce the outward signs of
honorability.128 As a social-control mechanism existimatio can be effective only
within small groups where information is reasonably accurate and easily accessible,
and against those whose position depends upon the networks of gratia they control.
To some extent, this may have been the case for the Roman elite internally, but
wealth and power have a life of their own. Although ‘a friend in need is a friend
indeed’, ‘friends’ are usually most available to those who least need them, but know
best how to use them. Moreover, honour is vulnerable mainly to the opinions of
peers. Affronts or condemnations by vastly inferior (ordinary) people hardly matter.
‘A man is answerabble for his honour only to his social equals, that is to say, to those
with whom he can conceptually compete.’129
Nevertheless, appearances had to be kept up. The ethical imperatives of friendship
and honour could be manipulated, but not ignored. Although the rules of the game
were constantly twisted and manipulated, they remained in force.

126
cf. HELLEGOUARC’H (1963), p. 393-396; FREYBURGER (1986), p. 47, 57. On poverty as
opposed to honour see also HORDEN & PURCELL (2000), p. 499 (in twentieth century Naples).
127
See MACMULLEN (1986), p. 512-519; LENDON (1997), p. 52-55; Caesar excused his course
of action in 50-49 by referring to the insults his dignitas had suffered from his enemies; cf. CAESAR,
B.C. I, 9, 2; CICERO, Att. VII, 11, 1. On the vulnerability of reputation compare KETTERING (1986),
p. 63.
128
cf. ADAMS (1971), passim; PITT-RIVERS (1977), p. 4.
129
PITT-RIVERS (1977), p. 10.

48
49

FRIENDSHIP AND PATRONAGE.

The terms amicitia and its near synonyms necessitudo and familiaritas were
frequently used euphemistically to denote relations between patron and client.130
Scholars have long believed that this practice covered up a reality in which both
terms had a fundamentally different meaning.131 Amicitia was a concept emphasising
equality and affection between both partners in a dyad, whereas clients were by
definition socially inferior132 and their relation with their patron (and vice versa) was
motivated by need and self-interest. Patronage was basically a dependency
relationship between persons of unequal rank, wealth or power, while amicitia was a
relationship based on affection and equality between independent partners.
But if this was so then why was amicitia a suitable euphemism for patron-client
relations? There has lately been much disagreement about how amicitia and
patronage were related to each other in the Roman World. Traditionally, since
Mommsen and Von Premerstein, Roman clientela was thought to have developed
from a serfdom-relationship encompassing both patron-client relations and patron-
freedman relations, to a non-enforceable relationship based on ethical imperatives
similar to those regulating amicitia.133 By the time of the Late Republic the
distinction

130
See e.g. SENECA, Ben. VI, 33-34; Ep. 94, 14; JUVENAL 5, 12-15; CICERO, Fam. IV, 12, 2;
VALERIUS MAXIMUS IX, 11, 4; LIVY Epit. CV. On Juvenal in particular see LAFLEUR (1979). For a
comparable use of the term amicizia in contemporary Italy see BLOK (1969a), p. 371-373;
BOISSEVAIN (1966), p. 22; in modern Greece cf. CAMPBELL (1964), p. 253; ‘amitié’ in Early
Modern France cf. KETTERING (1986), p. 14-15; KETTERING (1992), p. 139.
131
cf. ROULAND (1979), p. 455-464; KONSTAN (1995); KONSTAN (1997), p. 135-137
(contending that amicitia as a ‘bond of generous affection, loyalty and intimacy can coexist with the
recognition that degree must receive its due’ (p. 137)).
132
See e.g. Dig. IL, 15, 7, 1; AMPELIUS 49, 1-3; note also that Plutarch derived patronus from
Patron, one of the companions of Evander in Italy who became famous as a protector of the poor and
needy (Rom. 30, 2).
133
MOMMSEN (1887) III, p. 54-88; MOMMSEN (1864); VON PREMERSTEIN (1901); but see
already FUSTEL DE COULANGES (1864), p. 271-276; FUSTEL DE COULANGES (1890), p. 205-
206; also MEIER (1966), p. 24-34; KASER (1955) I, p. 103-104; DE MARTINO (1979), p. 19-23, 106,
287; DE MARTINO (1980); DE MARTINO (1994), p. LEVI (1996); ROSAFIO (1993), p. 169-176; for
a highly critical survey see BRUNT (1988c), p. 400-414. ROULAND (1979) does not believe the
original clientes to have been only half-free (p.79-85), but does accept the contractual nature of the
patron-client bond (p. 104-107, 269-270). On the link between patron-client and patron-freedman
relations see also LEMOSSE (1949), p. 46-56; WALDSTEIN (1986), p. 69-80; contra see ROULAND
(1979), p. 98-102; DE MARTINO (1994), p. 344-345.

49
50

between patronage and amicitia had become blurred. A client was beneficiis
deuinctus, the relationship was based on fides and gratia, affection was due and the
reputation of the partners was at stake. But although the two kinds of relationship had
grown closer, patronage was thought to have retained enough of its archaic formal
traits to be technically and unequivocally different from amicitia.134
Richard Saller – taking an interdisciplinary and comparative approach – argued
that patronage and amicitia should be studied as different forms of what was
essentially the same typekind of relationship. In his view, patronage could be
described adequately as a ‘lop-sided’ friendship based on asymmetrical reciprocity,
whereas amicitia was a relationship based on symmetrical reciprocity. 135 In doing so
Saller was the first to apply sociological theory to the problem of Roman patronage.
He was followed by others and the approach gained much momentum by the
publication in 1989 of a number of papers presented at a series of seminars held at
Leicester and Nottingham University in 1984-1986.136
Not all scholars agree, however, and the traditional approach – with some
modifications – continues to be popular. Millar strongly questions the validity of
applying the modern (sociological) concepts of ‘clientage’ and ‘patronage’ to explain
phenomena (in this case Roman Republican politics) in a society where no
equivalent terms existed.137

134
HELLEGOUARC'H (1963), p. 56; MOUSSY (1966), p. 358-359; ROULAND (1979), p. 455-
464; SALLER (1982), p. 11-12.
135
SALLER (1982), p. 11-15. Compare LANDÉ (1977) and FOSTER (1977) applying the concepts
‘dyadic alliance’ and ‘dyadic contract’ to both (instrumental) friendship and patronage.
136
MILLET (1989); SALLER (1989); WALLACE-HADRILL (1989); DRUMMOND (1989a);
RICH (1989); BRAUND (1989); GARNSEY and WOOLF (1989); HOPWOOD (1989);
DRINKWATER (1989); CLOUD (1989). With commentaries by two sociologists JOHNSON and
DANDEKER (1989). See also GARNSEY & SALLER (1987), p. 152-154. Interestingly, sociologists
began to include Roman society in their studies about the same time, unfortunately following largely the
‘Mommsen-model’. See RONIGER (1983); EISENSTADT & RONIGER (1984), p. 52-64.
137
MILLAR (1984), p. 17. (Compare more in general MILLAR (19 77), p. xi-xii) See also
BADIAN (1982); SHERWIN-WHITE (1983); D'ARMS (1986).

50
51

However that may be, it should be duly noted – as Millar correctly emphasises –
that the sociological concepts of ‘clientage’ and ‘patronage’ differ substantially from
the Roman concepts of clientela and patrocinium. The concepts of ‘patronage’ and
‘clientage’ indicate a general type of personal relationship that may occur in any
society under widely different names and appearences and which is characterised by
reciprocity, asymmetry and personal loyalty. Patrocinium and clientela on the other
hand were typically Roman concepts that can only be fully understood within the
context of Roman history and culture.
But what about the relationship between amicitia and patrocinium / clientela?
Although it is beyond doubt that the terms amicus and amicitia served as
euphemisms to cover up relations of factual dependence,138 several instances indicate
that the use of these terms went beyond the level of social niceties. Thus Cicero
claimed that the T. Roscius Capito and Magnus had an amicitia with Chrysogonus
since they had broken with the patroni et hospites of their ancestors and put
themselves in the fides et clientela of Chrysogonus.139 The businessman M’ Curius
addressed Cicero in a letter as both amice magni and patroni mi.140 Mallius Glaucia
(who murdered Sex. Roscius from Ameria) is designated as familiaris et cliens of T.
Roscius Magnus.141 The juxtaposition of terms in these three cases suggests that the
alleged amicitiae were no mere cover-ups for patron-client relations. Moreover,
Cicero’s choice of words in the case of Chrysogonus’s patronage over the T. Roscii
clearly shows that the relation between patron and client could be termed amicitia.
Although the word cliens is used more frequently to denote persons of lesser
social rank,142 we have several examples of the term being applied

138
cf. supra p. 41 see esp. Seneca's distinction between regum amicitiae, pares amicitiae, inferiores
amicitiae (Ep. 94, 14). See also JUVENAL 5, 12-15; for rex as literary synonym of patron see PLAUTUS,
Asin. 919; Capt. 92; Stich. 455; Men. 901-902; TERENCE, Eun. 339; HORACE, Epist. I, 7, 37; MARTIAL, I,
21, 1; 112, 1; II, 18, 5, 8; 68, 2; II, 7, 5; IV, 40, 3; 83, 5; V, 19, 13; 22, 14; IX, 73, 3; X, 10, 5; 96, 13;
XII, 31, 8; 48, 16; 60, 14; JUVENAL 5, 12-15, 130, 137, 161; 7, 45; 8, 161; 10, 161; 14, 155; CICERO, Sen.
37.
139
CICERO, Rosc. Am. 106: erat enim eis cum Chrysogono iam antea amicitia; nam cum multos
ueteres a maioribus Roscii patronos hospitesque haberent, omnis eos colere atque obseruare destiterunt
ac se in Chrysogoni fidem et clientelam contulerunt; of course the allegation is meant to discredit
Roscius Magnus and Capito, but the point here is that an amicitia could apparently arise from being in
someone's fides et clientela.
140
CICERO, Fam. VII, 29, 2.
141
CICERO, Rosc. Am. 19.
142
see e.g. Hilarus, freedman of Cicero and cliens of Atticus (CICERO, Att. I, 12, 2); Licinius,
freedman of C. Gracchus' wife and cliens of Catullus (GELLIUS I, 11, 16); Mena, a praeco tenui censu
and cliens of Marcius Philippus (HORACE, Epist. I, 7, 55-59).

51
52

to fairly important people.143 , for example, even senators had, according to Seneca
and Tacitus, become clients of Seianus.144 Seneca’s and Cicero’s complaint that the
rich and powerful preferred to seem ungrateful than to be thought clients presupposes
that the word could  at least in principle  be applied to them.145 This is confirmed
by the famous lex de repetundis from the Tabula Bembina (late second century BCE)
where we read that patrons of defendants could not act as prosecutors and were
exempted from the obligation to testify against their clients. Since the law only
applied to senators, it follows that senators could at that time still be termed
clients.146
According to Mommsen and his followers, Roman patronage (contrary to
amicitia) would have been a rigidly structured contractual relationship, with formal
procedures to initiate and to end the relationship, indisputable mutual obligations and
unequivocal symbols. These formalities were considered remnants of the time when
patronage was a legally enforceable relationship.
In Mommsen’s and Von Premerstein’s view there were three ways in which a free
man could become another’s client: Deditio – a conquered enemy begging mercy
became a client of the victorious commander; Birth – patronage was a family affair,
the child of a client became the client of his father’s patron; Applicatio – an
independent individual could become a client by means of a formal ‘attachment’-
rite.147 In addition,

143
the important eques Caecina (NICOLET (1966-1974), p. 812-813) was a uetus cliens of the
Servilii (CICERO, Fam. XIII, 66); C. Marius of the Herennii (PLUTARCH, Mar. 5, 4); Roscius Magnus and
Capito came from a distinguished equestrian family in Ameria (Rosc. Am. 107; NICOLET (1966-1974),
p. 1004-1005); M' Curius who addressed Cicero as his patron was a wealthy businessman in Patrae
(Fam. VII, 29, 2); P. Magius Chilo, who murdered his friend and patron M. Marcellus before
committing suicide, may have been a parvenu but was surely no pauper (CICERO, Fam. IV, 12, 2;
VALERIUS MAXIMUS IX, 11, 4; LIVY Epit. CXV); neither was the stoic P. Egnatius Celer, cliens of Q.
Marcius Barea Soranus (TACITUS, Ann. XVI, 32); much later a Gallic noble termed himself the cliens
probatissimus of the Roman governor (CIL XIII, 3162a).
144
SENECA, Dial. VI, 22, 4 (Cons. ad Marc.); TACITUS, Ann. IV, 2; cf. also TACITUS, Hist. III, 66.
See also SALLER (1989), p. 52.
145
CICERO, Off. II, 69 (see DYCK (1996), p. 457-458); SENECA, Ben. II, 23.
146
FIRA I, no. 7,  10, 32-33, p. 92-93 (see now CRAWFORD (1996), p. 65-112 for a new edition
with commentary and translation). See also BRUNT (1988c), p. 417; note also Cato the Elder’s marriage
with the daughter of his cliens Salonius: PLINY, N.H. VII, 61; PLUTARCH, Cat. Mai. 24; SENECA, Contr.
Exc. VII, 6, 17.
147
VON PREMERSTEIN (1901), col. 26-36; MOMMSEN (1887) III, p. 55-62. Mommsen equated
clientes in archaic Rome with freedmen and, therefore, treated manumissio as a procedure initiating
clientage, cf. supra p. 49.

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53

Gelzer distinguished a special form of commendatio (constituting a traditio) as an


archaic formal means of transferring clients from one patron to another.148
Scholars for a long time accepted Mommsen’s thesis, although the evidence was
(and is) meagre.149A semi-official patron-client relationship certainly ensued a
deditio in war, but such clientelae bound communities, not individuals.150 Patron-
client relations were inherited, but so were amicitiae.151 A patron-client relationship
could start with a commendatio, but so could any amicitia.152 Cicero’s reference to
the old saying tradere de manu in manu does not imply that such a traditio ever
constituted a consequential formal rite. It would merely suggest that the term tradere
was an ancient synonym (or precursor) of commendare.153 The only text referring to
applicatio is an ambiguous phrase in Cicero’s De Oratore dealing with exiles from
other cities seeking refuge in Rome with a protector quasi patronus. According to an
ancient obscure custom, these quasi patroni would have been entitled to the
inheritance left by the exiles in case of intestacy. Brunt rightly comments that ‘the
text has no relevance to patronage over freeborn Romans’.154 Two passages in
Terence’s Eunuchus are often thought to refer to a formal initiation rite that bound
patron and client together, but they are totally isolated, highly ambiguous and
inconclusive.155

148
GELZER (1912), p. 54-56; followed by DENIAUX (1993a), p. 36-44.
149
see. e.g. BADIAN (1958), p. 2-9; DENIAUX & PANTEL (1987-1989), p. 148. See also in
sociological literature: RONIGER (1983), p. 78; EISENSTADT & RONIGER (1984), p. 58-59; for the
idea of a formal applicatio-contract initiating the relationship see ROULAND (1979), p. 96-98, 269-270;
FREYBURGER (1986), p. 136-142, 149-152; DE MARTINO (1994), p. 354. For a devastating attack
on the ‘evidence’ see BRUNT (1988c). Note e.g. that Dionysius’s chapters on the Romulan constitution
seem to derive from a propagandistic pamphlet dating from the Late Republic (cf. infra).
150
See HARMAND (1957), p. 13-23; DE MARTINO (1994), p. 346. On communal patronage in
general see also NICOLS (1980); NICOLS (1989); DUTHOY (1981) ; DUTHOY (1983) ; DUTHOY
(1984).
151
cf. KIRSCHENBAUM (1987), p. 171, n. 186; e.g. CICERO, Fam. XIII, 29; 51; 66, 1; Att. XVI,
16A; Rosc. Am. 15; 27; Rab. Per. 2.
152
See DENIAUX. (1993), p. 187-189.
153
CICERO, Fam. VII, 5, 3; the expression is unique but compare PLAUTUS, Trin. 902. On the use of
tradere / traditio as synonyms of commendare /commendatio see DENIAUX (1993a), p. 36-44.
154
CICERO, De orat. I, 177. See BRUNT (1988c), p. 404; ROULAND (1979), p. 82-83. Contra see
recently DE MARTINO (1994), p. 352 who believes the iusiurandum liberti derived from an ancient
oath of allegiance to their patron taken by clients.
155
TERENCE, Eun. 886-887: 'ego me tuae commendo et committo fide[i], / te mihi patronam capio,
Thai'; Eun. 1039-1040: 'Thais patri se commendauit, in clientelam et fidem / nobis dedit se'; on these see
ROULAND (1979), p. 270; FREYBURGER (1986), p. 151-152.

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54

Since the time of Plautus (at least), a patron-client relation could start with any
favour or gift that a client was unable to repay, thus binding him morally to his
patron.156 Volteius Mena, for instance, became Philippus’s client when he accepted
an invitation to dinner.157 In more general terms it seems clear that at least by the
third century BCE someone ended up in the clientela of a patron when and because
he became beneficiis deuinctus; i.e. when he received a favour he was unable to pay
back. Roman patronage thus shows itself as an asymmetrical reciprocity
relationship.158
Plutarch’s life of Marius tells how C. Herennius refused to testify against Marius
because the Marius’s family had been in the clientela of the Herennii for many
generations. Marius was not pleased with this reasoning (it denounced him as
socially inferior) and claimed that his reaching the tribunate and becoming a senator
had ended his inherited position as client of the Herennii. Plutarch comments that
Marius was wrong: only a curule magistracy could end a clientela.159 The story
would seem to prove that as late as the late second century a client could not
voluntarily end the relationship with his patron. In fact, we know that this pretence
was unenforceable. A patron-client relation ended whenever either wanted to break
off the relationship. Saller regards the story as a reflection of an archaic rule, long in
disuse by the Late Republic.160 The main question is, was this rule ever enforceable
or are we dealing rather with a social constraint?
The anecdote about Marius shows that the lex de ambitu, under which Marius was
tried, accepted patrocinium as a valid excuse for not appearing as a witness for the
prosecution. The lex de repetundis from the Tabula Bembina has a similar clause in
which patroni and clientes are

156
although ROULAND (1979), p. 269-270 concedes that a patron client relation in Plautus 'semble
naître de façon spontanée et résulter du simple service rendu par le patron', he nevertheless clings to the
idea that there must have been 'une sorte de contrat verbis'.
157
HORACE, Epist. I, 7, 46-95. See also MARTIAL, IX, 100, 1; the invitation of course symbolised and
indeed promised more substantial benefits. On the symbolic role of food and common meals in Roman
patronage see: WALLACE-HADRILL (1989), p. 73; D’ARMS (1984). See infra on sportulae.
158
SALLER (1982), p. 11-15; SALLER (1989); GARNSEY & SALLER (1987), p. 152-154;
WALLACE-HADRILL (1989); LENDON (1997), p. 66-67.
159
PLUTARCH, Mar. 5, 4; cf. DENIAUX (1973)
160
SALLER (1989), p. 50-51.

54
55

exempted from being called upon as witnesses against their clients.161 Cato the
Elder referred to the same principle, ascribing it to the maiores.162 Significantly,
however, the lex de repetundis did not expressly forbid patrons and clients to testify
against each other. It merely ruled that the praetor could not order (dum nei ... iubeat)
them to give evidence against each other. Cato clearly refers to a strong moral
constraint, and not to any specific legal rule.163
Brunt correctly noted that the leges de repetundis and de ambitu are isolated cases
in the history of Roman law. The lex Atilia de tutoribus dandis did not recognise
patrons as the expected guardians of their clients’ underage children, although it did
mention their father’s amici.164
However, can the articles in the leges de repetundis and de ambitu be considered
remnants of a time when the patron-client relation carried legally enforceable rights
and duties?165 A famous article in the XII Tables would seem to substantiate this
idea. It reads: patronus si clientem fraudem fecerit, sacer esto.166 The fragment is
preserved by Vergil’s commentator Servius who uses it to explain the words fraus
innexa clienti in Aeneis VI,609 where patrons who betrayed (? fraus innexa) their
clients are placed in the depths of Tartarus, together with those who hated their
brothers, beat their parents, refused to share their wealth with their family, cheated on
their spouses or bore arms again their masters.
The interpretation of this fragment is fraught with difficulties. Brunt rejects the
authenticity of the clause altogether.167 The main problem is the meaning of fraus.
Imbert does not believe that fraus was a juridical concept at the time of the XII
Tables. In later law the term means dolus, ‘fraud’.168 Assuming, for the sake of the
argument, that the term did have

161
FIRA I, no. 7,  32-33, p. 92-93 (see now CRAWFORD (1996), p. 65-112 for a new edition with
commentary and translation);  10 excludes patrons from acting as prosecutors, but this may have been
meant to protect the claimants rather than the defendants.
162
CATO, ORF 200 (= GELLIUS V, 13, 4)
163
see also BRUNT (1988c), p. 416-417.
164
BRUNT (1988c), p. 417-419; DENIAUX (1973), p. 185-186 is wrong to refer to a number of
other laws carrying similar clauses but concerning not patrons and clients, but patrons and freedmen.
165
VON PREMERSTEIN (1901) col. 39, 47; DENIAUX (1973), p. 183-186.
166
Servius ad Aen. 6, 609; on the traditional interpretation of the fragment see e.g. MOMMSEN
(1887) III, p. 81-82; MOMMSEN (1864), p. 383-385; VON PREMERSTEIN (1901), col. 39;
ROULAND (1979), p. 105107, 162; DENIAUX (1973), p. 184.
167
BRUNT (1988c), p. 409-410.
168
IMBERT (1959), p. 407-408; contra see ROULAND (1979), p. 107; KASER (1955) I, p. 524-
525. See BERGER (1953), p. 477 for the term in classical Roman law.

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56

a comparable ‘technical’ meaning at the time of the XII Tables, what kind of fraud
did the law have in mind? Did fraus refer to any kind of transgression of the duties a
patron owed his clients  as was clearly held by Vergil and his commentator
Servius or did it refer only to his (chief) duty to assist his client in court?
Aulus Gellius claimed that the Roman people held fides in such a high esteem that
no deed was thought more base than for a man to be proved estranged from his
client. The words used by Gellius are si qui probaretur clientem diuisui habuisse. De
Martino believes diuisui habuisse should be read as ‘to usurp the goods of’, which
would constitute the original meaning of fraus. But this is not what Gellius says. The
obvious objects of the diuisus are the cliens and his patron. Nothing indicates either
that the term diuisus would have been used by the XII Tables or even that Gellius
had the clause patronus si clientem fraudem etc. in mind, for although this chapter of
the Noctes Atticae discusses the law of the XII Tables, the excursion on fides is
distinctly ascribed to the Roman people and not to the law of the XII Tables.169
It is in any case remarkable that the XII Tables granted any citizen the right to sue
any other citizen, without making an exception for patrons or clients. This is hardly
compatible with an ‘open’ definition of fraus. Dionysius mentions a comparable
clause in the leges regiae but with a much more limited scope, applicable only to
clients and patrons who prosecuted each other or who testified, pronounced
judgement or bore arms against each other (cf. infra). It may also be relevant in this
connection that when Cato claimed that the maiores thought it more venerable
(sanctius) to defend pupils than not to fallere a client, he did so specifically in the
context of the respective duties of guardians and patrons in court.170 Therefore, if the
fragment preserved by Servius is authentic it most likely did not refer to the patron as
the general protector of his clients, but to the patron in his role of defender in
court.171

169
GELLIUS XX, 1, 41: Sic consules, clarissimos uiros, hostibus confirmandae fidei publicae causa
dedidit, sic clientem in fidem acceptum cariorem haberi quam propinquos tuendumque esse contra
cognatos censuit, neque peius ullum facinus existimatum est, quam si qui probaretur clientem diuisui
habuisse. DE MARTINO (1994), p. 347-349.
170
GELLIUS V, 13, 4.
171
For the duty of patrons as defenders in court see NEUHAUSER (1958), p. 19-118, DAVID
(1992), p. 49-280. Contra see ROULAND (1979), p. 105-107, 162, who believes fraus comprised every
transgression of the duties a patron owed his clients, but who thinks the sacratio no longer had any
practical effect.

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57

Another problem is that of the sacratio. Although we know that such a sentence
existed at the time of the Kings and in the Early Republic, no other known clause in
the XII Tables mentions a sacratio.172 Moreover, in order to be valid, a sacratio had
to contain a reference to a divinity to which the condemned was made sacer.
Dionysius , for example, mentions that patrons and clients who accused each other in
court or testified or pronounced judgement against one another were outlawed by
making them sacer to the ‘infernal Zeus’ ( ).173 No
174
divinity is mentioned in the Servius fragment.
In fact, the entire interpretation of how Roman patronage developed from the days
of the Kings to the days of the Classical Republic hinges on how we interpret the
foundation myth of patronage. The story is most fully told by Dionysius and
Plutarch, but the version they present almost certainly does not predate the Middle
Republic.175 Dionysius’s account, seems heavily indebted to Late Hellenistic
philosophy and is believed to be based largely on a Late Republican propagandistic
pamphlet.176
The story relates how Romulus divided the population into patricians and
plebeians and instituted patronage as a voluntary relationship between a plebeian and
a patrician of his choice. Although the relation was entered into voluntarily, the bond
nevertheless became hereditary.177 It was the patron’s duty to explain the law to his
clients, to assist them in court and generally to look after their interests as a father
would his sons. Clients, for their part, had to help their patrons financially in
elections, in

172
Note, however, Tabula 8, 5 (= PLINY, N.H. XVIII, 12, CRAWORD (1996), p. 684-685): a person
who lets his beasts graze at night on someone else’s land or who steals part of a crop at night will be
hanged in honour of Ceres (see LATTE (1950), p. 53-54). See also the tribunes of the plebs, who were
sacrosancti, i.e. ‘durch die sacer-Klausel geschützt’ (LATTE (1950), p. 58). A sacratio is mentioned on
the Lapis Niger (ILLRP 3). On sacratio see: LATTE (1950), p. 50-52); KASER (1955) I, p. 20, 52-53;
CRAWFORD (1996), p. 690; ROULAND (1979), p. 162.
173
DIONYSIUS HAL. II, 10, 3.
174
Cf. FESTUS, p. 318 (ed. Lindsay) (s.v. sacratae leges); MOMMSEN (1864), p. 384, n. 52
assumed the original clause read Diti patri sacer esto.
175
DIONYSIUS HAL. II, 9-11; PLUTARCH, Rom. 13, 1-6. See also CICERO, Rep. II, 16; AMPELIUS 49, 1-
3. See ROULAND (1979), p. 32-45; DRUMMOND (1989a), p. 89-94; DRUMMOND (1989b), p. 159;
BRUNT (1988c), p. 400-414.
176
See VON PREMERSTEIN (1937), p. 8-12 ; GABBA (1960); DE MARTINO (1994), p. 344.
Note, however, that patrocinium was a profoundly Roman concept and, therefore, the narrative
backbone of the story must have been Roman, even if the ideology behind it was Greek;
177
DIONYSIUS HAL. II, 10, 4.

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58

the exercise of magistracies, and in paying dowries, fines and debts.178 When
enemies captured a patron, it was his clients’ duty to pay the ransom.179 Moreover, it
was illegal and sacrilegious for client and patron to prosecute each other, to testify or
to vote (in court) against one another, or to fight at the side of the other’s enemies.
Significantly, only violation of this latter set of rules had legal consequences
resulting in sacratio in honour of Zeus Katachthonios (the Roman Dis pater or
Pluto).180
The foundation myth was not an isolated story. It lay at the heart of a wider set of
opinions about patrons and clients ascribed to the maiores. Among these, we find
some clear ideas about where clients stood vis-à-vis their patrons compared to the
patrons’ other relations. Cato claimed that clients came just after pupils but well
before cognati. The early first century jurist Masurius Sabinus thought clients came
after hospites, but before cognati and adfines, and this too seems to have been
Caesar’s opinion. All three instances are cited by Aulus Gellius, who prefers to
follow Cato’s judgement.181 Dixon noted that the priorities mentioned by Cato and
Sabinus present ‘a hierarchy of need as well as a specific relation of trust’.182
What is most interesting in Gellius’s account, however, is that it does not purport
to reflect social reality but mos maiorum. Thus Gellius’s quotation of Cato’s oration
opens by claiming: ‘What our ancestors held to be most sacred …’.183 Sabinus too
refers to a distant past: ‘Among our forefathers it was thus upheld …’.184 Caesar is
less explicit, but his claim is rhetorical and perhaps even eccentric. Gellius himself
draws his observations ex moribus populi Romani (V,13,2).
It would be wrong to think of the mos maiorum as a receptacle of ancient custom.
It was rather a living ideology construed around the customs

178
For fines paid by clients and friends see Furius Camillus, SHATZMAN (1975), p. 83; LIVY V,
32, 8; PLUTARCH, Cam. 12, 2; DIONYSIUS HAL. XIII, 5, 1; Scipio Africanus, ROULAND (1979), p. 264-
265, LIVY XXXVIII, 60, 8-9.
179
Note that this was a very old officium amicitiae attested in the Greek world; cf. MILLETT
(1991), p. 59-61; cf. also CICERO, Off. II, 55 (based on Panaetius, see DYCK (1996), p. 440.
180
cf. ROULAND (1979), p. 105-107.
181
GELLIUS V, 13, 1-6; compare also VERGIL, Aen. VI, 608-613 where clients are associated with
near kin and slaves (cf. supra p. 55).
182
DIXON (1984), p. 351.
183
GELLIUS V, 13, 4: Quod maiores sanctius habuere ... It is true that Cato claimed that even in his
day it was unseemly to testify against a client, but Brunt correctly noted that the quote ends the past
tense: patrem primum, postea patronum proximum nomen habuere (BRUNT (1988c), p. 416).
184
GELLIUS V, 13, 5: apud maiores ita obseruatum est ...

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59

people ascribed to the maiores. Thus the mos maiorum was that which the Roman
people believed to have been the salutary custom of their forefathers. Of course there
was a tendency towards petrification when written texts began recording the tenets of
the mos, but this was only the case from the third century onwards. Although Fabius
Pictor may have been the first to record some beliefs of the mos maiorum, it was very
likely not until Cato’s Origines that substantial parts of it were written down. Thus
the mos maiorum reflects the ideology of the Middle Republic and not historical
reality in Archaic Rome.185 This is particularly true of Cato’s and Sabinus’s hierarchy
of fides relations, since their approach betrays the taste for classification and rational
analysis typical of Greek rhetorical training.186
Of course, this does not imply that the mos maiorum contained no historical truths
at all about Archaic Rome, but these became so mingled with later opinions that it is
virtually impossible for modern historians to disentangle them.
Fustel de Coulanges, Mommsen and Von Premerstein consider the foundation
myth and the old beliefs of the mos maiorum to be the reflection of an archaic reality
when clients were half-free dependants of the patrician gentes, in a legally
comparable position to that of freedmen. Clientes would essentially have been
outsiders, attached to the patrician gentes, who were sole owners of the land worked
by them. Both this approach to the myth and to the mos maiorum and the conclusions
drawn from it have been largely accepted by scholars. Drummond and Brunt on the
other hand doubt that there ever was such a class of half-free dependants in Rome.
There is no trace of such a class in the XII Tables, which mention only free citizens
and slaves.187
The historical reality of clientage in the Late Republic was in any case very
different. Most hierarchically ordered lists of social relationships and the duties they
entail do not mention patrons or clients, although they

185
cf. KLOFT (1970), p. 35-37, 44-46 about the virtue of liberalitas ascribed to the mos maiorum.
186
DIXON (1984), p. 351-352. See ibid. for the anachronistal attribution to the maiores of the
concept of infirmitas sexus.
187
DRUMMOND (1989a); DRUMMOND (1989b), p. 159-163; BRUNT (1988c), p. 407-409. See
also ROULAND (1979), p. 64-67.

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60

invariably mention amicitia.188 If we analyse the use of the term cliens we find two
clusters. One associates clients with slaves and freedmen, the other with amici and
hospites.189
However, the foundation myth of patronage draws our attention to another aspect
of patronage systems observed by Silverman. Patronage is not just an ‘etic
phenomenon’, an objective form of social exchange that can be observed and studied
by an unbiased outsider. Patronage is also an ‘emic phenomenon’, a mental
framework in terms of which people explain and justify the world in which they
live.190
Whatever its historical roots, by the Late Republic the foundation myth of Roman
patronage was essentially the narrative embodiment of a mental reference map. Few
will accept Dionysius’s claim that social harmony followed the institution of
patronage by Romulus as a valid piece of information about Romulan Rome.191 But
the assertion does inform us about how the Romulan code of patronage was
appreciated in Dionysius’s own time: as a means of establishing social harmony, as
an explanation for disharmony in later times, and hence as a justification for social
action aimed at restoring or safeguarding harmony. The same argument can be made
regarding the mos maiorum. The tenets about patrons and clients ascribed to the
maiores were part of a system of beliefs about what was right or wrong, serving to
explain and to justify perceived and planned action.

188
cf. CICERO, Off. I, 50-58; Fin. V, 65-67; Am. 19; Part. or. 80; HORACE, Ars. Poet. 312-313;
SENECA, Epist. 95, 37; cf. DYCK (1996), p. 165-182; SANSEN (1975), p. 92-93; BRUNT (1988c), p.
416.
189
associated with amici: CICERO, Sen. 32; Fam. V, 8, 5; ASCONIUS, Tog. Can. 74 (ed. Clark); Rhet.
Her. I, 8); VELLEIUS PATERCULUS II, 7, 3; Dig. XXXIII, 9, 3, 5 (Ulpianus); associated with freedmen and
slaves: CICERO, Inu. I, 109; Par. Stoic. 6, 46; Q. CICERO, Comm. Pet. 17; Dig. VII, 8, 3 (Paulus); IX, 3, 5,
1 (Ulpianus); XLVII, 2, 90 (Paulus); between the two: CICERO, Att. I, 20, 7; CICERO, Q. fr. I, 2, 16.
190
SILVERMAN (1977). Note that the distinction between ‘emics’ and ‘etics’ is merely analytical.
An ‘etic’ analysis studies social phenomena from the viewpoint of an outside observer using his own
conceptual tools, an ‘emic’ analysis studies cognitive patterns of meaning ascribed to social action by
social actors. Note also that Silverman uses the term ‘myth’ in a very broad sense to indicate any set of
beliefs serving as a cognitive reference map. For the idea of culture as a set of cognitive reference maps
see also GEERTZ (1973). For patronage as a ‘reference map’ note the ideological use of patronage to
describe Rome’s position vis-à-vis its socii (cf. CICERO, Q.fr. I, 1, 33; Off. II, 26; BRAUND (1989),
BADIAN (1958); BADIAN (1968); RICH (1989)) and the role of patronage in imperial propaganda
(CORBIER (1977); LEVI (1984); VEYNE (1976), p. 483-487, 535-536. Compare also KETTERING
(1986), p. 22 distinguishing between the rhetoric and reality of patron-client relations.
191
Contra see ROSAFIO (1993), p. 170.

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61

When we accept this interpretation of the foundation myth and of the mos
maiorum the value of both as sources of information about patronage in Archaic
Rome largely disappears.192 There is no way of knowing how much (if anything) of
the story is historically correct. The whole body of evidence about patronage in
Archaic Rome, construed by Mommsen and Von Premerstein collapses. We no
longer need to look for remnants of legally enforceable rights and duties. The
exemption from the obligation to testify is nothing more than the recognition of
private moral obligations. The article in the XII Tables – if authentic – is directed
against a patron defrauding his client in court (for example by conniving with the
prosecution).
However, the loss of relevance of our sources for archaic clientage is compensated
by their increased importance for understanding patronage in historical times. The
very existence of a ‘myth’ of patronage and clientage distinguished patrocinium from
amicitia. Amicitia had no comparable myth. Ideologically at least, clients were nearer
to kin than amici. The exemption for patrons from testifying against clients was not
given to even the closest of friends. Ideologically there was no honourable way for a
client or a patron to end their relationship, whereas friendship could be broken off.193
From an emic point of view amicitia was framed solely in terms of the moral
matrix treated in our previous chapter that applied both to relations between equal
and unequal partners, comprising symmetric and asymmetric reciprocity
respectively. The matrix itself consisted of value judgements, each of which had in
itself a much wider relevance, exceeding the bounds of friendship or patronage.
Patronage on the other hand emerges as a culturally distinct phenomenon in
Roman society not because there were any technical requirements about how such
relations had to be formed and maintained, but because there existed an ideological
mould ascribed to the maiores classifying relations based on reciprocity and loyalty
between unequal partners as patron client relations.
This classification of social relations in terms of a traditional partly mythological
ideal image was often ambiguous. There was, of course, little room for argument
about how a reciprocity relation had to be classified

192
for a similar argument see BRUNT (1988c), p. 400-414.
193
Although, significantly, the myth did not say that a patron-client relationship could not be ended!

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when the social distance between both partners was considerable. There could be
no question about how to classify , for example, the relation between Mena, a
relatively poor auctioneer (praeco), and the nobilis L. Marcius Philippus (cens. 86),
even though Philippus may have occasionally addressed Mena affectionately as
amice mi.194 However, classifying borderline cases (as , for example, that between
municipal notables and senators) must inevitably have carried with it an element of
subjectivity.
This is why the rich and powerful refused to acknowledge that they were beneficio
obligati.195 Doing so meant acknowledging that the framework of patronage applied
to them, which in turn implied acknowledging their social inferiority. Conversely
addressing someone as ‘patrone mi’ implied acknowledging one’s inferiority and the
other’s social superiority.
Although the same resources were exchanged in amicitia as in patron-client
relations,196 they took on a different guise. Thus amici were offered resources (opes)
and help (adiumentum), whereas clientes were offered protection (praesidium) in
exchange for gratia and deference.197 Patrons benefited from the protection they
offered their clients because it enhanced their social position. This enhancement was
not conceived of as a voluntary gift of the client to his patron, but as the consequence
of his acknowledging his patron’s superiority. Ultimately, it was the display of the
patron’s liberalitas / benignitas, testified to by the salutationes and adsectationes
performed by his clients, that enhanced his position.
However, although as a cultural ‘emic’ phenomenon Roman patronage was not a
variant of amicitia, as a social relationship Roman patronage did rest on the same
ethical framework as amicitia: benignitas, gratia, fides, beneuolentia, existimatio.
What ultimately determined whether one qualified as a client was the inability to
return favours of equal importance as the ones received. A client was by definition
unable to solve his debt of honour to his patron. And so as a social ‘etic’
phenomenon Roman patronage can and should be described as a lop-sided amicitia.
In the rest of this book, therefore, I will treat patron-client relations as amicitia
relations between unequal partners.

194
See HORACE, Epist. I, 7, 53-98.
195
CICERO, Off. II, 69 (cf. DYCK (1996), p. 457-458); SENECA, Ben. II, 23; cf. CAESAR, B.C. III, 18,
4.
196
FREYBURGER (1986), p. 181.
197
CICERO, De orat. I, 184; Inu. I, 109.

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63

THE ANCIENT AUTHORS ON THE USE OF FRIENDS.

Aristotle claimed that those who were rich needed friends in order to be able to
use their wealth meaningfully.198 Atticus acted accordingly. He gave substantial sums
of money to C. Marius the younger in 82, to Cicero in 58 and to Brutus in 44.199
Pliny was confident that he could rely at all times on his mother in law’s money.200
Cicero was not enthusiastic about donations of money, but he admitted that there
were occasions when gifts of money (largitiones) had to be made.201 However, a
distinction had to be made between gifts that were a token of generosity (liberalitas),
and gifts that bespoke prodigality. The difference did not lie in the sums of money
involved, but in the presence or absence of personal relations. Gifts to the people,
like public banquets, distributions, games and the like, were prodigal, whereas all
forms of pecuniary aid to friends were liberalis.202 Columella mentions five
profitable but dishonourable ways to enlarge and maintain a patrimony: army
service, trade by sea, usury, the courts, and patronage (salutatio mercennaria).203
Seneca also places patronage (‘the ungrateful cultivation of the mighty through
voluntary servitude’ – ingratus superiorum cultus uoluntaria seruitute) next to army
service and trade by land and sea.204 Petronius, for example, compares the uilis
adulator to traders and soldiers.205 The image of the ‘mercenary client’ (cliens
mercennarius) is closely related to the literary type of the parasite. The line between
friends and flatterers was equally thin, as appears from Lucian’s essay

198
cf. ARISTOTLE, Eth. Nic. VIII, 1, 1 (1155a8).
199
cf. NEPOS, Att. 2, 2 (Marius), NEPOS, Att. 4, 4; CICERO, Att. III, 20.2; IV, 1, 3 (Cicero);
NEPOS, Att. 8 (Brutus).
200
PLINY, Epist. III, 19, 8: cuius arca non secus ac mea utor'; cf. SHERWIN-WHITE (1966),
p. 259.
201
CICERO, Off. II, 54.
202
CICERO, Off. II, 55; cf. DYCK (1996), p. 436-453.
203
COLUMELLA, I, praef. 7-10.
204
SENECA, Dial. X, 2, 1 (Breu. Vit.).
205
PETRONIUS 83, 10. See now DAMON (1997) on the relation parasite – client.

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64

‘On how to distinguish a friend from a flatterer’.206 At least for some, amicitia was
a lucrative bond.
It shouldn’t surprise us, therefore, that friendship could be construed as an
important asset, in which one ought to invest. The term used by Cicero is ‘to invest
favours’.207 Nearly four centuries earlier, Socrates in Xenophon’s Memorabilia
reckoned ‘friends’ among the most important assets of a man.208 Wealth and friends
are mentioned in one breath in Plato’s Gorgias.209 Seneca asserts that we possess our
riches only temporarily. We are but procurators of our own possessions. Only in one
way can we be sure of our wealth: ‘by giving gifts’ (dona danda).210 Martial
expressed the same idea when he wrote ‘what is given to friends is beyond the reach
of Fortune. Only the wealth you will have given will you have forever.’211 One of
Publilius Syrus’s Senentiae reads ‘nothing is a better bargain than a firm friend’.212
Cicero asserts in his Pro Plancio that a man’s possessions and wealth (opes) could
only be kept intact with the aid of many friends.213 The assertion echoes Aristotle’s
claim that a rich man needed friends to guard and to keep his wealth.214
Amici owed each other benignitas, gratia, fides and amor, and these values
generated obligations (officia) that were almost by nature vague. Amicitia was not a
formal contractual relationship and although its mutual obligations were strong and
essential to the relationship, they were never specified in advance. Nevertheless it is
possible to distinguish different categories of reciprocal services that friends
expected from each other.

206
See also KONSTAN (1997), p. 98-103.
207
CICERO, Off. II, 69: collocare beneficia. See also SENECA, Dial. VII, 24, 2 (Vit. Beat.);
CICERO, Off. II, 71; DYCK (1996), p. 456-457; ARISTOTLE, Eth. Nic. VIII, 13, 7 (1162b34).
208
XENOPHON, Mem. II, 3; for a commentary see MILLETT (1991), p. 116-117, contra see
KONSTAN (1997), p. 79-80; for friends as social assets see also KOOIJMANS (1992), p. 52.
209
PLATO, Gorg. 479 c.
210
SENECA, Ben. VI, 3, 3. See also SENECA, Ben. VI, 3, 1 where the poet Rabirius makes the
dying Antony exclaim hoc habeo quodcumque dedi. Cf MICHEL (1962), p. 522: ‘Faire le bien, obliger
les autres, c'est le moyen le plus sûr de vous prémunir contre les vicissitudes de la fortune.’.
211
MARTIAL IV, 42: Extra fortunam est, quidquid donatur amicis: / Quas dederis, solas semper
habebis opes. For the same idea see MENANDER, Dysc. 805-811; CICERO, Am. 55.
212
PUBLILIUS SYRUS, Sent. A54 (ed. Meyer): amico firmo nihil emi melius potest. See also Sent.
H6 (ed. Meyer): Habet in aduersis auxilia, qui in secundis commodat.
213
CICERO, Planc. 81.
214
ARISTOTLE, Eth. Nic. VIII, 1, 1 (1155a6-11).

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65

Among these substantial and economically important resources played a


significant part.
Seneca urges us to help friends with different kinds of resources: ‘Help some
materially, some with credit, some with influence, some with council, some with
wholesome precepts.’215 A comparable list is found in a letter of recommendation, in
which Cicero describes his relation with Curtius Mithres: ‘Both his services and
credit, and his house and things, I use as if they were mine.’216 Martial (indirectly)
sums up what could be expected from friends (and clients) in the way of material aid:
‘Marius does not invite you to diner, nor does he send presents / He doesn’t stand
surety, nor is he prepared to lend money, but neither does he have any’.217
Following Seneca’s example, Michel subdivides beneficia/officia amicitiae into
the following categories: re, fide, opera, gratia and consilio. To these he adds the
numerous ‘obligations mondaines’: salutationes, adsectationes, attendance at
lectures, family ceremonies (such as conferment of the toga uirilis, betrothals,
wedding, funerals and so forth), playing the part of witness at the sealing of a will or
informal manumissions of slaves, and so on. Typical examples of beneficia re in
Michel’s classification are hospitality (hospitium), loans (mutua, commodata), gifts
(donationes) and ‘dispositions testamentaires’. Beneficia fide are all forms of
standing surety (sponsio, fidepromissio, fideiussio and mandatum pecuniae
credendae). Free and voluntary agency with or without a mandate (mandatum and
negotiorum gestio respectively) constitute beneficia opera.218
Michel’s classification offers an excellent survey of the wide spectrum of
possibilities offered by the beneficia amicitiae, although it can by no means be
considered exhaustive or exclusive. Societas, for example, might very well be placed
among the officia opera. Even though socii shared in profit derived from their actions
and, therefore, did not offer their services for free, which consequently cannot be
considered

215
SENECA, Ben. I, 2, 4: Alium re, alium fide, alium gratia, alium consilio, alium praeceptis
salubribus adiuua'.
Note that Seneca also distinguishes different degrees of beneficia: necessaria, utilia and iucunda
(Ben. I, 11, 1-5). See also TERENCE, Heaut. 86: aut consolando aut consilio aut re iuuero.
216
CICERO, Fam. XIII, 69, 1: huius cum opera et fide, tum domo et re uti, tamquam mea.
217
MARTIAL X, 19: nec uocat ad cenam Marius, nec munera mittit, / Nec spondet, nec uolt
credere, sed nec habet.
218
MICHEL (1962), p. 534-552. See also KIRSCHENBAUM (1987), p. 173-177.

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66

beneficia, most societates were nevertheless formed between amici, kinsmen or


in-laws.219 Tutela testamentaria should certainly be reckoned among the officia
opera of the tutor.220 We should also be aware that the different categories overlap.
Thus we find Atticus as Cicero’s procurator (in itself a beneficium fide covered by
mandatum and negotiorum gestio) helping Cicero financially (beneficium re), using
his influence on Cicero’s behalf (beneficium gratia) and advising him in important
decisions (beneficium consilio).
A number of texts explicitly state that it was an officium amicitiae to enrich one’s
friends. Cicero’s description of a homo liberalis leaves no doubt about it: ‘Liberal are
those who with their own means redeem prisoners from robbers, or take over the
debts of their friends, or help (them) in marrying their daughters, or assist them in
making a profit or in enlarging their possessions.’221 Cicero’s defence of Rabirius
Postumus – an important publicanus and an international financier – is largely built
around this image of the homo liberalis, applied to Postumus and his father. Rabirius
was deeply involved in business activities, but ‘he never ceased to enrich his friends,
to fulfil their commissions, to give them shares (sc. in lucrative tax contracts), to
enlarge their possessions and to sustain their credit’.222 In this he followed his
father’s example, ‘whose fortitude in doing business would not have been so
approved by people, were it not that in this his benignitas was incredible, so that it
seemed that in increasing his fortune he was not seeking to procure spoil for his
avarice but to obtain an instrument for goodness.’223 Elsewhere in the De officiis

219
On societas and amicitia cf. infra chapter III,2.
220
On tutela testamentaria cf. infra chapter.
221
CICERO, Off. II, 55: liberales autem (sunt), qui suis facultatibus aut captos a praedonibus
redimunt, aut aes alienum suscipiunt amicorum aut in filiarum collocatione adiuuant aut opitulantur uel
in re quaerenda uel augenda.
222
CICERO, Rab. Post. 4: nec interea locupletare amicos umquam suos destitit, mittere in
negotium, dare partis, augere <re>, fide sustentare.
223
CICERO, Rab. Post. 3: cuius in negotiis gerendis magnitudinem animi non tam homines
probassent, nisi in eodem benignitas incredibilis fuisset, ut in augenda re non auaritiae praedam, sed
instrumentum bonitati quaerere uideretur. See also Rab. Post. 45: tune ille in omnis tuos liberalis, cuius
multos bonitas locupletauit, qui nihil profudisti, nihil ullam in libidinem contulisti? The idea of
liberalitas legitimising the occupations of a businessman links the cultural ideal types of the
businessman (negotiator, mercator, faenerator) and the notable (homo liberalis, bonus uir) fostered by
the Roman elite. A businessman is driven by auaritia. Auaritia is opposed to liberalitas, which is a
typical feature of the bonus uir. Therefore, a bonus uir can have business interests (negotia habere),
because this is an factual state of things, but cannot be a negotiator because this is a socially identifying
concept implying auaritia. See VERBOVEN (1993a), p. 87-95.

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Cicero asserts that beneuolentia is a motive to enrich others and to enhance their
prestige and social position.224
Clearly, the ancient Greeks and Romans were acutely aware of the substantial
benefits amicitia brought with it and of the possibilities amicitia offered in the field
of the organisation of economic (and other) activities.

224
CICERO, Off. II, 21.

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[leeg blad]

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Part II. Amicitia and the allocation of scarce


resources

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This second part of this book is devoted to the influence of amicitia on the
allocation of economically important resources. Most scholars who have worked on
Roman ‘friendship’ and patronage will feel on familiar terrain in the following
chapters, which focus on gifts, loans and inheritances. All three have long been
acknowledged as ‘standard’ obligations in Roman friendship and patronage.
Nevertheless, I hope to contribute some new points. By relocating the often cited
sources in their original context – both textual and social – I hope to shed a different
light on some issues that in my view have been too often neglected. By
reconstructing the cultural, social, political and economic landscape within which
amicitia and patronage operated, we can sharpen our perspective on their overall
importance as alternative mechanisms for the allocation of scarce resources and as
influences on the market as the ‘classical’ economic allocation system.

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GIFTS AND PRESENTS.

Instrumental friendship and patronage in the Roman world – as in other cultures –


were based on reciprocity or gift-exchange.225 In the following chapter I will survey
the evidence for gifts in the context of patronage and amicitia to establish the
importance of ‘gift-exchange’ as an allocation system for goods and services. I will
try to establish the conditions under which the system operated and to show the
strategic use of gifts to achieve previously defined goals.
The importance of gift-exchange in Greek and Roman culture is widely
acknowledged.226 According to Finley and his followers, the dynamics of gift-
exchange generated a circulation of goods and services that decisively determined
the allocation of basic resources until the rise of the polis and that continued to be
important throughout Antiquity.227 The ethos of the gift in ancient culture was be no
means restricted to amicitia or family-relations. It was operative on different levels in
very different social contexts: euergetism, corruption228, charity, and so forth. It is
important to keep this in mind. A context of patronage or amicitia was no by means
required for gifts to be made and for returns to be expected.
Compared to the Early Empire, few substantial gifts (real, imagined or hoped for)
are attested for the Late Republic. Theoretically, this could indicate a change in
morals or an increased standard of living, but I doubt we may interpret the data in
this way. For the Early Empire, most instances of substantial gifts come from Martial
and Pliny. If we exclude these two single sources, the difference with the data from
the Late Republic largely disappears. The fact that Martial is an unusually rich source
of information on substantial gifts has little to do with social reality

225
On reciprocity in general see MAUSS (1923-1924); SAHLINS (1972), p. 149-183, 191-196;
FOSTER (1977); GOULDNER (1977); MACHEREL (1983).
226
Cf. supra p. 37-39.
227
cf. FINLEY (1974); CARNEY (1973), p. 59-66; MILLETT (1991), p. 24-52; Finley’s ideas were
strongly influenced by Polanyi, see POLANYI (1957a); POLANY (1957b).
228
Note that the line between gifts and bribes was not always clear. See HERMAN (1987), p. 75-81
on the gradual emergence of the concept of bribery.

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in his day and age; it merely reflects his favourite literary themes. Pliny’s Letters,
on the other hand, paint a model picture of the ideal senator, who naturally indulged
in the most splendid kind of generosity. Cloud found that in the first book of
Juvenal’s Satires, gifts between patrons and clients are rarely mentioned and the
author deplores the disappearance of the kind of generosity of patrons towards clients
that was common in the days of Nero and Augustus. ‘One might suppose … that the
practice of bestowing goods on clients had ceased by the time Juvenal came to write
Book I, but the evidence … shows that it still continued.’229
The kind of gifts and donations attested in Pliny’s letters differs considerably from
those attested in Martial. Pliny mainly mentions gifts of real estate or money. Martial
mentions a much larger spectrum of various gifts, ranging from foodstuffs and
kitchenware over costly garments, precious jewels and silverware to money and real
estate. Since the different categories of gifts mentioned by Martial are attested
elsewhere, we may assume that they are representative of a reality in which just
about everything could be turned into a gift. Pliny seems to be interested only in
donations that confirmed and increased the social status of the giver, in this case his
own status as a senator. This may betray part of Pliny’s intentions in publishing his
letters, viz. to portray himself as a role model of the ideal senator.230
The difference between Pliny’s and Cicero’s letters is remarkable. There is no gift
of Cicero on record that would compare to, for example, the 300,000 sesterces that
Pliny donated to Romatius Firmus, or to the 100,000 sesterces he donated to Calvina.
Cicero’s generosity seems to have been limited to loans and sureties.
Both men were very different in character and in financial position. Cicero shows
himself verbally very pugnacious in both his speeches and his letters. He could be
very sarcastic and crude towards opponents. Although he knew when to be tactful, he
was also temperamental and easily offended, although just as easily pleased.231
Pliny’s letters are

229
CLOUD (1989), p. 210.
230
On gifts in Martial and Pliny cf. infra and see ROULAND (1979), p. 517-519, 527-528;
MICHEL (1962), p. 537-538.
231
See PLUTARCH, Cic. 7, 25-28. See also MACMULLEN (1986) for the thin line between
aggression and dignitas. For examples of tactfulness see Cicero’s letters to App. Claudius, whom he
detested and whose (mal)administration of Cilicia shocked him (CICERO, Fam. III, 1-13; Att. V, 15, 2;
VI, 1, 2-3; 2, 8; 3, 5). For his being easily offended see his relation with Atticus’s freedman Dionysius
(TREGGIARI (1969), p. 119-121, 191; PEREZ (1981), p. 193-194).

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totally different in tone. Although the author delights in gossip and backbiting, he
is rarely openly verbally aggressive. Pliny remains composed and amiable whatever
happens.
Of course, the impression may be false and intentionally created by an author who,
contrary to Cicero, carefully selected and perhaps reworked his letters before
publication. In any case, Pliny as a self created ‘literary character’ differs completely
from Cicero as we know him from his speeches and letters. Thus Cicero condemns
large donations of money (largitiones) in his De Officiis, whereas Pliny
demonstrably and ostentatiously makes them hismelf in his publication of letters.232
However, the two men’s financial position was very different as well. Cicero was
chronically short of money. His patrimony, virtually wholly self-earned233, was
heavily affected a first time when he was forced into exile in 58, a second time when
he chose Pompey’s side in 49. Although Pliny liked to talk about his paupertas, he
never experienced any serious financial difficulties. He inherited a large patrimony
from his uncle and adoptive father Pliny the Elder and, although threatened by
Domitian, was never struck by the calamities that befell Cicero. Moreover, Cicero
had a daughter to whom he had to give a dowry and a son whose stay in Athens cost
him 80,000 sesterces each year in 45 and 44.234 In other words, Cicero simply could
not afford Pliny’s largesse.
Finally, Cicero’s letters are not comparable to Pliny’s because (apart from a few
minor exceptions) Cicero never intended them to be published and never reworked
them. Numerous passages are deliberately coded to prevent outsiders from
understanding them.235 Carcopino even thought the letters were published to discredit
him.236 Cicero was no doubt a vain man, but status enhancement was not the object
of his private letters, whereas this motivation is clearly present in Pliny’s letters.237

232
Cf. also DIXON (1993), p. 453.
233
Cf. PLUTARCH, Cic. 8, 3, substantiated by the well known composition of his patrimony
consisting from personally bought estates from the mid sixties onwards, see SHATZMAN (1975), p.
403-407; CARCOPINO (1947) I, p. 73-230; MOHLER (1932); SCHMIDT (1899); FRIER (1978);
LICHTENBERGER (1895).
234
For Tullia’s dowry see DIXON (1986), p. 102-111; COLLINS (1951-1952); TREGGIARI
(1991), p. 347, 352-353, 360; for the cost of young Marcus’s stay in Athens see CICERO, Att. XII, 32, 2;
XV, 17, 1; 20, 4; XVI, 1, 5
235
See e.g. CICERO, Att. IV, 2, 7; VI, 4, 3.
236
CARCOPINO (1947) II, p. 217-462; contra see SHACKLETON BAILEY (1965-1970) I, p. 61-
73.
237
Contrary to the few open letters that were intended for a wider audience. See e.g. CICERO, Q. fr.
I, 1; maybe also Fam. I, 9; V, 12.

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Nothing indicates, therefore, that notables in Cicero’s time were less generous
than under the Early Empire. The behavioural pattern concerning gift giving that we
find in Pliny’s day is essentially the same as the one we find in the Late Republic.

Status of gifts: loans and bribery.


Dionysius of Halicarnassus remarked that – according to the foundation myth of
patronage –the support that was traditionally expected from clients in paying
dowries, ransoms and fines had to consist of donations rather than loans. This remark
is interesting because it indicates the close connection between gifts and free loans.238
It is often impossible to determine whether a transfer of money or goods was
intended as a gift or as a loan. Clearly, some gifts were intended as unconditional and
unenforceable loans. The money (or other object) was given unconditionally, but
under the assumption that the recipient would repay when he was able to.
Conversely, a loan could be transformed into a gift post factum.239 When he returned
from exile Cicero tried to repay the support that he had received from his brother
with help from his friends.240 Presumably, Tullius Montanus, whom Cicero helped to
pay his debt to the state, would have eventually repaid the money.241
Gifts among the elite where often politically motivated and the difference between
liberalitas and corruption was sometimes slight. When it looked as if Clodius would
be condemned for sacrilege in the Bona Dea scandal, Crassus is thought to have
summoned the judges and bought them with promises, sureties and gifts.242 Clearly,
in many cases, the object was sheer bribery and neither the existence nor the
initiation of a personal relation was in any way relevant. Obviously, such gifts cannot
be considered beneficia and so strictly speaking they do not fall within the scope of
this book.243

238
DIONYSIUS HAL. II, 10, 2.
239
The term donatio was applied to such cases. See PLINY, Epist. II, 14, 1-2; MARTIAL VI, 30;
VIII, 37; IX, 102. See also SALLER (1982), p. 122; SALLER (1983), p. 253; DIXON (1993), p. 461-
463; MILLETT (1991), p. 27-30, 121-122. The ambiguity is also found in other cultures: cf. e.g.
GREGORY (1975), p. 79.
240
CICERO, Att. IV, 3, 6.
241
CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24.1.
242
CICERO, Att. I, 16, 5. See WARD (1977), p. 205-209. Against the identification of Crassus see
TATUM (1999), p. 82-85. On the Bona Dea scandal see ibid. 62-86; BENNER (1987), p. 38-40.
243
Cf. MILLETT (1991), p. 86. See e.g. ASCONIUS, Corn. 57-58 (ed. Clark).

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However, the dividing line is not always clear cut; gifts to politicians may be
intended to buy and bind interesting allies. Thus Caesar’s gifts to Marc Antony and
C. Scribonius Curio, for example, seem to have been intended not just to buy support
from them, but also as a means to secure a strategic alliance (amicitia) that could
serve multiple purposes, and so these gifts do belong in the category of beneficia,
even though the actor in question was obviously manipulating the norms of Roman
friendship.

1.1 Gifts in Roman law.


Michel distinguished two major periods in the legal history of donations. The first
starts at the end of the third century BCE with the lex Cincia, which introduced the
concept of the donatio in Roman law, and ends with Constantine the Great. The
second starts with Constantine and continues today.244
Donatio in classical Roman law was not a contract or an autonomous institution of
its own. The concept was legally defined only as any act that gave rise to the exceptio
foreseen in the lex Cincia, by which a stipulated transfer of goods could be blocked.
Donatio rested on the manifest will of transacting partners to gratify one at the
expense of the other and referred to acts that were normally remunerative.245 Because
a donatio was not a legally defined act it could not give rise to legally enforceable
obligations and could, therefore, not be considered a ‘contract’.
A Constitutio of Constantine the Great (a. 316) made a written act compulsory in
order for a donation to be valid and, therefore, irrevocable. It fundamentally changed
the legal framework of donations. Theodosius II limited this requirement to gifts of
more than 200 solidi. Justinian raised this limit to 500 solidi and also defined valid
excuses for revoking gifts and instituted obligations following the acceptance of a
gift.246
The legal rules concerning gifts in classical Roman law, therefore, were
determined by the lex Cincia de donis et muneribus, dating from 204.247 The law
prohibited all gifts exceeding a certain (unknown) amount, with

244
MICHEL (1962), p. 290-301.
245
cf. MICHEL (1962), p. 290: ‘La Donatio classique .... consiste dans la volonté déclarée des
parties de gratifier l'une d'elles aux dépens de l'autre’.
246
Cf. Fr. Vat. 249; Cod. Theod. III, 5, 13; Cod. Iust. VIII, 53, 36, 3; 55, 8; 10; 35; JUSTINIAN,
Inst. 2, 7.
247
The lex Cincia was not the first law regulating gifts. A few years earlier a tribune of the plebs had
passed the lex Publicia de cereis (209) stipulating that clients should give only wax candles to their
patroni at the Saturnalia. See MACROBIUS, I, 7, 33. ROULAND (1979), p. 243.

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the exception of gifts between close family, husbands and wives (later revoked),
fiancées and serui quique pro seruis seruitutem seruierunt (possibly slaves with a
peculium and dependent freedmen). These three categories were personae exceptae.
Gifts as payment for patronal assistance in court were explicitly mentioned and
banned.248 The law was imperfecta, which meant that it neither instituted fines or
punishments nor made illegal gifts invalid. The only legal effect of the law was that it
allowed an exceptio, making stipulated gifts and transfer of property (traditio) after
formal mancipatio or in iure cessio unenforceable. The exceptio was important
because it ensured that patrons and ‘friends’ could never enforce payment for their
free services (beneficia), for example, for their assistance in court.249
The tenacious habit of court-patroni to expect substantial ‘gifts’ in exchange for
their services inspired several renewals and reinforcements of the lex Cincia in the
course of time. Patrons could easily circumvent the law by demanding ‘gifts’ in
advance.250 The senate eventually took action, probably during the reign of Augustus
or in the final years of the Republic, by issuing a decision stipulating that litigating
parties had to swear that they had not given anything to their patroni as payment for
their services in court.251 Augustus further enforced this decree by instituting a fine,
equal to four times the amount received, for senators who had accepted payment for
their services.252 However, this enactment as well proved to be largely without
practical effects. Under Claudius, the senate held a debate on the subject. The
conclusion was that ‘gifts’ up to 10,000 sesterces would henceforth be allowed,
whereas those who

248
See STEIN (1985); CASAVOLA (1960); CRAWFORD (1996), p.741-744; DUMONT (1987),
p. 114-122; BERGER (1953), p. 549; LEONHARD (1905); ROULAND (1979), p. 244-246; MICHEL
(1962), p. 290-292; DAVID (1992), p. 121-145; SHATZMAN (1975), p. 70-73; ROTONDI (1962), p.
261-263. For the difficult problem of the personae exceptae see CASAVOLA (1960), p. 53-114;
MOMMSEN (1887) III, p. 427-429; FABRE (1981), p. 286-289); DUMONT (1987), p. 115. Not
coincidentally the inner family circle is included, compare BETTINI (1990).
249
See MICHEL (1962), p. 290-292 for the importance of the exceptio. See also VAN OVEN
(1948), p. 312. It was the first serious limitation put on the formalist Roman legal system. See also
DAVID (1992), p. 128-129.
250
Cf. TACITUS, Ann. XI, 6; PLINY, Epist. V, 4. See SHERWIN-WHITE (1966), p. 320.
251
PLINY, Epist. V, 9, 4. See SHERWIN-WHITE (1966), p. 337.
252
DIO LIV, 18 (17 BCE). Tacitus is undoubtedly referring to this fine in Ann 13, 42, where he
writes about the poena Cinciae legis.

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accepted more would become liable to prosecution for extortion under the lex Iulia
de repetundis.253 Nevertheless, the practice continued to be morally condemned and
the exceptio instituted by the lex Cincia was not abolished.254 Litigating parties still
had to swear that they had neither given nor sworn to give anything to their patrons
in court, although payments up to the Claudian maximum of 10,000 sesterces were
tolerated. In 105, the praetor Licinius Nepos issued an edict declaring that he would
henceforth follow the terms of the senatorial decree enforcing the oath in question to
the letter. Nepos’s edict caused considerable commotion and unease among the
presidents of the other courts. The affair seems to have ended with an intervention of
the emperor confirming the edict and thereby effectively revoking the Claudian
concession.255
Surprisingly, gifts to friends, patrons or clients outside the context of the courts
never seem to have posed any legal problem, despite the fact that they were formally
against the lex Cincia. We have numerous examples of substantial gifts between non-
kin, friends, patrons and clients where there is no indication whatsoever that the lex
Cincia was relevant. Tacitus wholly ignores the implications of the Cincian law for
such gifts and simply asserts that the law was specifically directed against the
insolence of orators (in court).256
Scholars have paid little attention to the apparent contradiction between the
general ban on gifts in the lex Cincia and the pervasiveness of gift-exchange in the
Roman world. The law is thought to have applied only to court patrons or to be an
irrelevant remnant of a lost world.257 In my view, however, the significance of the
Cincian law for the practice of gift-exchange should not be underestimated.
Because the Cincian law was imperfecta, the only actual consequence of the law
was that it ensured that gifts could not be legally enforced. As such the law was
perfectly in line with the ideal voluntary nature of beneficia. A true beneficium
derived from genuine goodwill and not from compulsion. Conversely, a beneficium
generated gratia but it could never give rise to legally enforceable obligations. Thus
the traditional beneficium

253
TACITUS, Ann. XI, 6-7.
254
Cf. MARTIAL I, 98.
255
PLINY, Epist. V, 9; 13, 9. See SHERWIN-WHITE (1966), p .335-337, 342-343. The exact terms
of the imperial decision are not known, but PLINY describes the intervention as prohiberi publice of
even the slightest payment.
256
TACITUS, Ann. XV, 20.
257
See e.g. BÜRGE (1980), p. 139.

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of a defence in court could never create an obligation of payment. The fact that the
lex Cincia allowed gifts up to an unknown maximum amount and aimed, therefore,
only at excessive gifts, was also in accordance with generally accepted ideas, not
only because excessive gifts to outsiders deprived next of kin and heirs of their due,
258
but also because they destroyed the basis for future generosity.259
The lex Cincia, therefore, was in no way opposed to the traditional practices of gift
giving, which it rather upheld than hindered. In reality, the law firmly upheld the
unenforceability of liberalitas.
By the Augustan era, Roman law explicitly distinguished between ‘valid’
donations and ‘invalid’ donations. Affection, both honourable – as towards ‘well
deserving friends’ (amici bene merentes) – and dishonourable – as towards
prostitutes – was explicitly recognised as a valid cause by the time of Sabinus.260
Labeo, however, repeated the Cincian ban on gifts in exchange for inherently free
services. Such gifts were ‘without (just) cause’ and were in fact ‘fees for officia’.
Labeo’s justification for the rule, and in a way his measuring rod to distinguish
between legitimate and illegitimate gifts, was that a person could not be liberalis
against his will.261 The jurists’ train of thought is interesting because it shows that the
Cincian law was not used by jurists to oppose gift-exchange as such, but to uphold
the voluntary nature of beneficia.

1.2 Size and object of donations


The vast majority of gifts in the Ancient World, just as today, symbolised relations
of trust and solidarity and had little if any commercial value. The traditional gifts sent
by clients to their patrons at the occasion of the Saturnalia were candles, whereas
small puppets in fired clay were given to friends, clients and patrons on the sigillaria
– the last day of the Saturnalia.262 Small symbolic gifts express gratitude and thus
invoke the

258
CICERO, Off. I, 44.
259
CICERO, Off. II, 54.
260
Dig. IXL, 5, 5 (Ulpianus in his commentary on Sabinus): affectionis gratia neque honestae neque
inhonestae donationes sunt prohibitae, honestae erga bene merentes amicos uel necessarios, inhonestae
circa meretrices.
261
Dig. IXL, 5, 19, 1-2 (Ulpianus): Labeo scribit extra causam donationum esse talium officiorum
mercedes ut puta: si tibi adfuero, si satis pro te dedero, si qualibet in re opera uel gratia mea usus
fueris. Non potest liberalitas nolenti adquiri.
262
Cf. NILSON (1921), col. 204-205; VARRO, L.L. 64; SHA, Car. 1, 8; Aur. 50, 2. See also supra
p. 75 on the lex Publicia.

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norm of reciprocity (gratia) and the acknowledgement of the obligation to


reciprocate on which the recipient of the gift can rely. At the same time, they express
the wish to continue an existing affectionate or instrumental relationship or
symbolise the appreciation and/or affection felt by one for another.263
The little present that Atticus gave to Cicero’s daughter Tullia when she was still a
child belongs in this category.264 To get an idea of the wide range of possible small
presents we can turn to Martial: earthenware given by Martial himself to Arruntius
Stella,265 nuts given by clients to their patrons at New Year266, a hare given to
Restitutus by a hunter267, olives from Picenum, preserved figs, Lucanian sausages,
Faliscan entrails, cheap Syrian wine, a pound of flour and beans given to Sabellus.268
Martial excuses himself to Quintianus because he sent only a poem on the occasion
of the Saturnalia: only small gifts are truly disinterested, who gives a lot, expects a
lot in return.269
Nevertheless, it is an historically important fact that many gifts were of substantial
value and that socially important persons were expected to make valuable donations
to their amici on at least some occasions.270 Martial ridicules his ‘great friends’ who
gave him only worthless gifts. Sextus gave him a pound of silver the first year, but
only half a pound of pepper the next.271 Postumianus started by giving 4 pounds of
silver, but ended up giving a silver spoon lighter than a needle.272 Lupus gave a piece
of land smaller than Martial’s flower pot.273 Of course Martial’s cases are fictitious,
but they illustrate the strong social pressure notables were under to make generous
gifts to their ‘friends’. The higher one’s social position, the more valuable one’s gifts
ought to be.

263
Cf. WHITE (1978), p. 87-88, referring to CICERO, Off. II, 52; SENECA, Ben. I, 11. See also
SALLER (1982), p. 123-124; SALLER (1983), p. 250-251. For symbolic gifts in general see
MACCORMACK (1976), p. 95: ‘The return gift should, therefore, not be considered principally as an
obligation (arising from a “norm of reciprocity”) but as a ritual statement reciprocating the desire to
maintain a close association.’
264
CICERO, Att. I, 8, 3; 10, 6.
265
MARTIAL V, 59.
266
MARTIAL VIII, 33.
267
MARTIAL X, 87.
268
MARTIAL IV, 46
269
MARTIAL V, 18; 59; X, 87.
270
See also SALLER (1982), p. 123; SALLER (1983), p. 252; contra see WHITE (1978), p. 87-88.
271
MARTIAL X, 57.
272
MARTIAL VIII, 71.
273
MARTIAL XI, 18

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a) Clothes and textiles.

Clothes seem to have been a standard gift of often considerable value. Horace
mentions a certain Eutrapelus who is said to have corrupted people he disliked by
giving them uestimenta pretiosa, thus accustoming them to a more expensive life-
style than their means could bear.274 Martial confirms that clothes and textiles were a
common gift. A fellow poet was given a cloak worth 10,000 sesterces. Martial
deliberately exaggerated the value of the cloak to underline the absurdity of the (no
doubt fictitious) case.275 However, the cloaks of Tyrian purple Restitutus received on
his birthday from the clients he had defended in court, do seem to be meant as
realistic examples of possible gifts.276 The epigrams praising the magnificent togae
Martial received from the emperor and his intimate Parthenius undoubtedly
immortalise a real gift.277 The purple-hemmed handkerchief (lato uariata mappa
clauo) mentioned in Martial’s epigram 4,46 is a caricature of the purple banded
senatorial toga.

b) Gold and silver

Uncoined gold and silver in the Ancient World were commonly associated with
money. It was easily exchanged for coins and served as an accepted medium for
wealth storage. Gold was not regularly minted during the Republic until Caesar.
Instead gold bullion was commonly used for large transactions.278 When Cicero left
Italy in exile in 58 Rabirius Postumus gave him gold.279 Trebatius Testa hoped to be
laden with Gallic gold and silver by Caesar.280 Marc Antony’s father, Antonius
Creticus, was reputed to have given a silver bowl (perhaps meant as a loan) to a
friend in need of money.281 Martial has numerous examples of valuable gold and
silver objects being given to friends.282

274
HORACE, Epist. I, 18, 31-36.
275
MARTIAL IV, 61.
276
MARTIAL X, 87.
277
MARTIAL VIII, 28; IX, 48. For other examples of togae as gifts see MARTIAL X, 11; 73; 87;
XII, 36.
278
Cf. SALLER (1983), p. 253; NICOLET (1988), p. 87 (= CAH X, p. 631); HOWGEGO (1992), p.
9-12; HARL (1996), p. 40; CRAWFORD (1969), no. 357; VERBOVEN (1997a), p. 67; CICERO, Clu.
179; Cael. 30-31; Rab. Post. 47; Phil. III, 10; Att. XII, 6, 1; Flacc. 67-69; Vat. 12. Note that Caesar’s
decree against hoarding applied also to gold (DIO XLI, 38, 1).
279
CICERO, Rab. Post. 47.
280
CICERO, Fam. VII, 7, 1; 13.
281
PLUTARCH, Ant. 1.
282
MARTIAL V, 59; VIII, 33; 50; 71; 86; X, 57; XII, 36.

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81

c) Cash money

The embarrassment surrounding gifts of money in modern western society was


wholly absent in ancient Rome, even in contexts where the offering of money would
be tantamount to an insult today – as in the case of sexual relations.283 Seneca
expressly mentions pecunia as an example of useful benefactions (beneficia utilia).284
Gifts of money could be very considerable. Plutarch claims Antony once ordered a
slave to give one million sesterces to a friend.285 Atticus gave over 250,000 sesterces
to Cicero, 400,000 to Brutus and an unknown sum to the younger Marius.286 Marcius
Philippus gave 7000 sesterces to his client Volteius Mena.287 Several amici, among
whom Pontius Aquila, supported Brutus Albinus financially in his struggle against
Antony.288 Pliny the Younger gave 300,000 sesterces to Romatius Firmus, 100,000 to
Calvina, 50,000 to Quintilianus, 40,000 to Metilius Crispus, an unknown but
substantial sum to the philosopher Artemidorus and money to cover travelling
expenses (uiaticum) to Martial.289 Numerous epigrams of Martial mention gifts of
money: 200,000 sesterces to the poet Mancinus from an admirer290, 20,000, 10,000
and 1000 sesterces to Galla from lovers291, 5000 sesterces to Calliodorus from an
unknown friend292, a few pieces of gold to Martial himself from Fabullus.293

d) Land and real estate.

The most prestigious gift was a piece of land.294 Pompey gave Balbus a stretch of
land in the neighbourhood of Rome on which Balbus built a suburban villa.295 Curio
gave an estate (praedium rusticum) to Caelius

283
Cf. VEYNE (1978), p. 45.
284
SENECA, Ben. I, 11.
285
PLUTARCH, Ant. 4, 4.
286
NEPOS, Att. 8 (Brutus); NEPOS, Att. 4, 4; CICERO, Att. III, 19, 3; 20, 2 (Cicero); NEPOS, Att.
2, 2 (Marius).
287
HORACE, Epist. I, 7, 80 (besides another 7000 which he lent to Mena).
288
DIO LVI, 40, 2.
289
PLINY, Epist. I, 19 (Romatius Firmus); VI, 25, 3 (Metilius Crispus); II, 4 (Calvina); VI, 32
(Quintilianus); 3, 11(Artemidorus); 3, 21, 2 (Martial); cf. SHERWIN-WHITE (1966), p. 129-131, 384-
386, 149-150, 398, 239-240; 263.
290
MARTIAL IV, 61.
291
MARTIAL X, 75.
292
MARTIAL X, 11
293
MARTIAL XII, 36; cf. also IV, 37; VI30; X, 15.
294
Cf. WHITE (1978), p. 91; cf. also SALLER (1983), p. 247-251.
295
CICERO, Att. IX, 13a.

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82

Rufus.296 The 7000 sesterces given to Volteius Mena by his patron were meant to
buy a farmstead.297 Maecenas gave Horace an estate in Sabinum.298 Martial received
a small manor in Nomentum. Upon his return to Spain, Marcella and Terentius
Priscus both gave an estate.299 An unknown benefactor gave Martial a small house in
the city.300 These gifts of real estate to friends echo similar gifts to close kin and
lovers. Cicero gave his share of the paternal house in the Carinae to his brother.301
Caesar sold a few magnificent estates (amplissima praedia) to Servilia for a nominal
sum.302 Pliny would later confer a farm (agellus) on his nurse.303

e) Varia.

Many gifts escape classification. Curio gave Caelius Rufus – besides the estate
mentioned above – some panthers to use in the games which Caelius was expected to
give as aedilis plebis.304 Verres gave Hortensius a statue of a sphinx in exchange for
his services as patron in court.305 L. Papirius Paetus gave Cicero the library he had
inherited from the grammarian Ser. Claudius.306 Lucullus Ponticus ceded an
inheritance he had received to App. Claudius, who presumably had been appointed
heir in the second degree.307 Martial mentions a lot of roof tiles meant for the roof of
his villa. The case is probably fictitious, but not implausible.308 On the whole it
would seem that anything could be the object of a gift. The choice depended mostly
on the situation of the giver and on the circumstances surrounding the gift.

296
CICERO, Fam. VIII, 9, 3.
297
298
HORACE, Epist. I, 7; 14; Carm. II, 18, 14; III, 1, 47; Serm. II, 7, 118.
299
MARTIAL XI, 18; XII, 3; 31. See also MARTIAL VII, 31; X, 48; 94; XIII, 42; SALLER (1983),
p. 251-254.
300
MARTIAL IX, 97.
301
PLUTARCH, Cic. 8.
302
SUETONIUS, Iul. 50, 3.
303
PLINY, Epist. VI, 3; SHERWIN-WHITE (1966), p. 358.
304
CICERO, Fam. VIII, 9, 3.
305
QUINTILIAN, Inst. VI, 3, 93; PLINY, N.H. XXIV, 48; PLUTARCH, Cic. 7, 6; Mor. 205B;
DAVID (1992), p. 133-134. For Verres’s relation with Hortentius see BRUNT (1980), p. 280. The statue
is variously described as made from Corinthian bronze (Pliny), silver or ivory (Plutarch).
306
CICERO, Att. I, 20, 7; II, 1, 12. See DEMMEL (1962), p. 317-345 on their friendship.
307
VARRO, R.R. III, 16, 2.
308
MARTIAL VII, 36.

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83

1.3 Occasions for gifts.


Gifts were generally not given at arbitrary times. As in our day and age, there were
specific occasions and days in a year when family, friends, patrons and clients were
expected to make gifts: New Year, the Saturnalia, the kalends of March, birthdays,
marriages, and so forth.309 Such gifts on ‘regular’ occasions – such as a person’s
birthday – could be quite substantial, but in many cases they were mainly symbolic
serving as a token of friendship or loyalty and a pledge for the future. Apart from
these ‘regular’ occasions, however, gifts were also expected in certain situations, for
instance, as a form of assistance in emergencies, as help in meeting the expenses of
standing for office or in carrying the financial burdens of office, or as help in paying
fines.

a) War and exile

Friends, patrons and clients were expected to help each other in case of
emergency, and war and exile clearly qualified. Atticus gave money to C. Marius
filius in 82, when the latter had to escape from Sulla.310 When Brutus fled from
Antony in 44, Atticus donated 100,000 sesterces to him and offered him another
300,000 sesterces in Epirus.311 Cicero received 250,000 sesterces from Atticus when
he was exiled from Italy and counted on Atticus to give him an allowance from the
proceeds of his estates in Epirus.312 C. Ateius Capito is also said to have supported
Cicero on this occasion313, while C. Rabirius Postumus gave him an unknown
amount of gold.314 At the same time, Cicero counted on his friends to support
Terentia and the children who stayed behind in Rome, and he advised his wife not to
sacrifice too much of her own patrimony: ‘if our

309
See SALLER (1983), p. 252. Birthdays: PLINY, Epist. IV, 9, 7 (cf. SHERWIN-WHITE (1966),
p. 277); MARTIAL VII, 86; X, 27; 87. New Year: MARTIAL VIII, 33. Saturnalia: CATULLUS
14A.15; PLINY, Epist. IV, 9, 7; 8, 7; MARTIAL IV, 46; V, 18; VII, 36; 53; VIII, 71; MACROBIUS, 1,
7, 33; SUETONIUS, Aug. 75; SHA, Hadr. 17, 3. Kalends of March (archaic New Year): Dig. XXIV, 1,
1, 8; SUETONIUS, Vesp. 18.1. The Saturnalia were most of all associated with patronage. They had
been instituted as a special festival for commoners (LIVY XXX, 1, 20) cf. NILSON (1921), col. 204-
205. This together with the myth of patronage (according to which patronage was instituted by Romulus
to protect the common people, cf. supra p. 57) explains the link.
310
NEPOS, Att. 2, 2.
311
NEPOS, Att. 8.
312
NEPOS, Att. 4, 4; CICERO, Att. III, 19, 3; 20, 2.
313
CICERO, Fam. XIII, 29, 2.
314
CICERO, Rab. Post. 47.

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84

friends remain duteous, money will not be lacking.’315 Accordingly, when


Cicero’s brother Quintus offered financial support, Cicero refused, saying that he had
already used up a large sum of money belonging to Quintus in a failed attempt to
ward off Clodius.316So, apparently, Cicero hoped to cover his expenses wholly
through support from his amici. During his stay in Pompey’s camp in 49-48, Cicero
again received money from Atticus in Epirus. The money was clearly given
unconditionally and repayment was contingent on Cicero’s safe return.317

b) Ransom

The Roman myth of patronage, as told by Dionysius of Halicarnassus, prescribed


that clients had to contribute in paying ransom money for their patrons if
necessary.318 In fact, we are dealing here with an ancient and bounden duty of
friends, well known from the Greek world.319 Cicero mentions it in his De Officiis
when he describes the actions of a true homo liberalis.320
Although piracy was a serious problem in the Mediterranean during the Late
Republic until Pompey’s campaign, and kidnapping was traditionally a lucrative
speciality of pirates, we have few actual examples of the practice for the Late
Republic. P. Clodius Pulcher – the later tribune – was taken hostage after a defeat he
suffered in Cilicia as naval commander against the pirates. Clodius appealed to king
Ptolemy of Cyprus to pay the ransom, but the king only offered to contribute 2
talents (48,000 sesterces). In the event Clodius was released because the pirates
feared Pompey’s fleet and wanted to appease the great general. Clodius may have
appealed to Ptolemy because the latter was a hereditary client of the Claudii Pulchri,
but there is no evidence to support this interpretation and the very fact that Ptolemy
offered such a ridiculously low sum as contribution suggests that no personal
connection existed between them.321

315
CICERO, Fam. XIV, 1, 5: si erunt in officio amici, pecunia non deerit; cf. also Fam. XIV, 2, 3;
Att. IV, 2, 7.
316
CICERO, Q. fr. 1, 3, 7; Att. IV, 3, 6.
317
CICERO, Att. XI, 2, 4; 13, 4.
318
DIONYSIUS HAL. II, 10, 2.
319
See MILLETT (1991), p. 59-61.
320
CICERO, Off. II, 55. Cf . DYCK (1996), p. 440.
321
CICERO, Har. Resp. 42; APPIAN, B.C. II,23; DIO, XXXVIII,30,5; PLUTARCH, Caes. 2,1. See
TATUM (1999), p. 49-50.

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85

The most famous hostage was Caesar. In order to raise the 50 talents (1,200,000
sesterces) of ransom his kidnappers demanded he sent envoys to several cities.
Plutarch claims the ransom money eventually came from Miletus, although other
cities may have contributed. It may be that the cities the envoys were sent to were in
Caesar’s clientela and that other clients and friends contributed, but we do not know
this for sure.322

c) Fire, storm and other damages.

There was no equivalent for modern insurance against fire, storm or other
damages in the Ancient World. However, gifts from amici could fulfil the need.
Martial and Juvenal describe sarcastically how amici donated generously when a
wealthy person’s house burned down. Both poets suggest that the money donated far
exceeded the value of the property lost, insinuating that the owner started the fire
himself.323 We have no comparable examples for the Late Republic, but as a form of
solidarity in case of misfortune, the habit would be in line with the other attested
reasons for financial assistance.

d) Fines.

According to the foundation myth of patronage, clients were expected to


contribute in the payment of their patron’s fines.324 However, the few examples we
have of such cases show an intrinsic ambiguity. P. Cornelius Scipio Africanus the
Elder was heavily fined in 187 BCE for embezzling part of the booty of the war
against Antiochus. When he proved unable to pay up, his relatives, friends and
clients organised a collection that raised considerably more money than necessary.
Livy claims that Scipio refused the money and relied solely on his closest relatives to
buy back what was necessary for the family cult.325
The case recalls the much older and perhaps legendary case of M. Furius
Camillus, who was fined 15.000 asses for allegedly having embezzled part of the
booty from Veii. His clients, fellow soldiers and relatives offered to pay the fine, but
Camillus refused the offer because it could not absolve him and went into exile.326
Obviously, neither Scipio the Elder

322
PLUTARCH, Caes. 1-2; VALERIUS MAXIMUS VI, 9, 15; VELLEIUS PATERCULUS II, 42;
SUETONIUS, Iul. 4. See also SHATZMAN (1975), p. 347.
323
MARTIAL III, 52; JUVENAL 3, 212-222.
324
DIONYSIUS HAL. II, 10, 2.
325
LIVY XXXVIII, 60, 8-9. See also ROULAND (1979), p. 264-265.
326
LIVY V, 32, 8; PLUTARCH, Cam. 12, 2; DIONYSIUS HAL. XIII, 5, 1. See SHATZMAN
(1983), p. 83.

85
86

nor Camillus was keen on accepting money from his clients or friends. This
accords well with Plutarch’s assertion in his version of the foundation myth of
patronage that in the course of time it came to be held improper for patrons to accept
money from their clients.327
Ironically, we have an example of the opposite situation where a patron payd the
fine of his clients. Caesar fined the city of Buthrotum for having chosen Pompey’s
side in the civil war. Because the city was unable to pay, Caesar decided to
confiscate part of its territory for the settlement of veterans. In order to prevent the
settlement, Atticus – whose richest estates were located in the region and who was
probably patron of the city – paid the fine himself. The project failed. A new colony
was founded on the city’s territory and it seems unlikely that Atticus was ever
repaid.328

e) Debts.

Roman law was harsh on insolvent debtors. Although debt bondage had been
officially abolished by the lex Poetelia Papiria de nexis in 328, insolvent debtors
could still be placed in the custody of their creditors by the praetor until they had
worked off their debt.329 Insolvent upper class debtors stood to lose the totality of
their possessions and their social position. The censors could expel them from the
senate. Infamia followed a conviction for insolvency.330
Understandably therefore, when insolvency threatened financial aid from friends
was called for. Plutarch’s version of the foundation myth of patronage explicitly
mentions such aid as a traditional duty of clients vis-à-vis their patrons.331 We have
already seen that Cicero’s general description of the duties of a homo liberalis
included ‘sustaining’ debts for friends (aes alienum suscipiunt amicorum), a
description vague enough to encompass both standing surety and paying debts.332
When L. Tullius Montanus was summoned to pay a debt which Flaminius Flamma
owed to the state for which he stood surety, Cicero promised to pay in Montanus’s
place, remarking to Atticus that it was a

327
PLUTARCH, Rom. 13, 6
328
CICERO, Att. XVI, 16a, 2-3. See DENIAUX (1975); DENIAUX (1987), p. 865-1088.
329
On the lex Poetelia Papiria see BARLOW (1978), p. 46; FRANK (1933), p. 32; ROTONDI
(1962), p. 230-231 (see here for source references). On debt-bondage through addictio afterwards see
e.g. SALLUST, Cat. 33; FREDERIKSEN (1966), p. 129.
330
See FREDERIKSEN (1966), p. 128-130.
331
PLUTARCH, Rom. 13, 6.
332
CICERO, Off. II, 55.

86
87

question of his ‘personal duty’ (officium).333 Caesar supported C. Rabirius


Postumus when he was on the verge of insolvency (according to Cicero) in 54.334
Political reasons led to a comparable intervention in favour of Marc Antony335, C.
Scribonius Curio336 and L. Aemilius Paullus337 in 50. Antony offered money to
young Q. Cicero in 44 with which to pay his debts.338 His father, M. Antonius
Creticus, once gave a silver bowl to a friend who desperately needed money.339 The
practice continued under the Early Empire. Over a century later Pliny helped the
philosopher Artemidorus pay his debts.340
It is sometimes difficult to make out whether these gifts were truly gifts or just
loans. Cicero’s payment in Montanus’s name would certainly have been paid back if
Montanus had recovered the money from Flamma, but what if Montanus would
recovered it? It somehow seems unlikely that Cicero would have pressed Montanus
to pay back in that case.341

f) Dowries

The obligation to provide a suitable dowry for daughters was one of the most
important social duties of a respectable father. It also represented a considerable
financial burden. The higher one’s social status was, the larger one’s daughters’
dowries ought to be. Friends and clients were expected to contribute if necessary to
help support their friend or patron’s dignitas. Both Dionysius and Plutarch assert that
the Romulan ‘code’ of patronage explicitly mentioned such support as a duty
expected from clients.342 Cicero mentions financial help to provide dowries for the
daughters of friends as a typical act of true liberalitas.343

333
CICERO, Att. XII, 52, 1: pertinet ad nostrum officium. See also Att. XII, 53; XIV, 16, 4; 17, 6;
XV, 2, 4; XVI, 15, 5-6; 24, 1.
334
CICERO, Rab. Post. 41-43. See also SIANI-DAVIES (1997), p. 336.
335
SHATZMAN (1975), p. 297-304; CICERO, Phil. II, 4; PLUTARCH, Pomp. 58, 1.
336
SHATZMAN (1975), p. 396; PLUTARCH, Pomp. 58, 1; VELLEIUS PATERCULUS II, 48, 3-
4; LUCANUS I, 269; 4, 819-820; APPIAN, B.C. II, 26; DIO XL, 60, 2.
337
SHATZMAN (1975), p. 289-290; PLUTARCH, Caes. 29, 3; Pomp. 58, 1; SUETONIUS, Iul. 29,
1; APPIAN, B.C. II, 26; DIO XL, 63, 2.
338
CICERO, Att. XV, 21, 1. See also Att. XIII, 42, 1; XIV, 14, 1; 19, 3; XV, 19, 2; 21, 1; XVI, 5, 2.
339
PLUTARCH, Ant. 1.
340
PLINY, Epist. III, 11; SHERWIN-WHITE (1966), p. 239-240.
341
We will have occasion to speak about the case again when we come to loans. In fact, we see that
Cicero put pressure on Flamma as soon as the latter returned to Rome (CICERO, Fam. XVI, 24, 1).
342
DIONYSIUS HAL. II, 10, 2; PLUTARCH, Rom.13, 6.
343
CICERO, Off. II, 56. See also Dig. XXVI, 7, 17, 3 (Paulus) (tutor) non dabit dotem sorori alio
patre natae, etiamsi aliter ea nubere non potuit: nam etsi honeste, ex liberalitate tamen fit, quae
seruanda arbitrio pupilli est. On dowries in Roman society see SALLER (1994), p. 204-224; HOPKINS
(1983), p. 77-78, 88-89; TREGGIARI (1991), p. 323-364; WATSON (1967), p. 57-58; SHATZMAN
(1975), p. 53. See also MILLETT (1991), p. 62-63. Note that patrons were also expectedd to give
counsel on possible marriage candidates: PLUTARCH, Cat. Mai. 24, 3-5; CICERO, De Orat. III, 133;
DIXON (1993), p. 456.

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88

However, although Cicero seems to have counted on Atticus in 48 to pay Tullia’s


dowry if necessary344, we have no unambiguous example from the Late Republic of
the actual donation of money needed for a dowry. The paucity of evidence is not
necessarily significant. Parkins notes that we have only very few examples of actual
dowries attested, although it is beyond doubt that – at least insofar as the elite is
concerned – any marriage normally required a dowry.345
Two cases do show that concern over dowries was a motivation to show
liberalitas towards friends. In Varro’s Res Rusticae, the fact that App. Claudius
could not give his sister a dowry when she married Lucullus Ponticus is presented as
a sign of paupertas. Lucullus’s willingness to marry her nonetheless is valued as a
laudable beneficium that is placed on a par with Lucullus’s ceding an important
bequest to Appius.346
As heir to his stepmother Aemilia, Scipio Aemilianus had to pay the remaining
half of his sisters’ dowries – 600,000 sesterces each – after his stepmother had paid
the first half. According to the law, the money had to be paid in three yearly
instalments. Scipio, however, ordered his banker to pay out the entire sum at once.
His two brothers in law, Ti. Sempronius Gracchus and P. Cornelius Scipio Nasica,
were perplexed by the young man’s generosity. Scipio Aemilianus replied that
whereas he was most strict in his dealings with strangers, towards friends and
relatives he was as easy and liberal as he could be.347

344
Eventually, Atticus’s help was not needed. On Tullia’s dowry see CICERO, Att. XI, 2, 3; 3, 1; 4a;
25, 3; 23, 3; XII, 5c; DIXON (1986), p. 102-111; COLLINS (1951-1952); TREGGIARI (1991), p. 347,
352-353, 360.
345
PARKINS (1997), p. 98-102. ‘Normally’, but not legally! The dowry was a social obligation, not
a legal one.
346
VARRO, R.R. III, 16, 2. Note, however, that Lucullus gained the political support of the
influential Claudii Pulchri by this marriage, which amply compensated for the absence of a dowry, see
DIXON (1983), p.102. Whether or not Claudius’s paupertas was real or merely a literary joke of Varro’s
(see TATUM (1999), p. 36) is irrelevant for our purposes.
347
POLYBIUS XXXI, 27, 1-16.
( (31, 27,
15)).

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89

Evidence from the Early Empire is less ambiguous. Pliny contributed 50,000
sesterces to the dowry of Quintilianus’s daughter.348 Calvina – regarding whom Pliny
claimed to be led by his duty as an in-law (ductus adfinitatis officio) – received
100,000 sesterces.349 Apuleius prided himself on having provided dowries for the
daughters of some of his friends and teachers.350

g) Status related expenses.

Providing dowries for the daughters of friends was a way to help them sustain the
burdens of an elevated social position. According to Cicero, inequality in friendship
had to be accepted because a man could not be expected to enhance the social status
of all his friends.351 His De Officiis distinguishes between help to friends in need and
help to friends who seek to improve their position. The first had the stronger claim,
but the aim of the latter was equally legitimate and the assistance offered equally
justified.352
Curio’s gift of an estate to Caelius Rufus belongs in this category.353 The case is
exceptional for the Late Republic, but we have several instances of status-enhancing
gifts under the Early Empire. Pliny gave 40,000 sesterces to Metilius Crispus on the
occasion of his promotion to centurion, in order to enable him to buy splendid
equipment and uniform.354 Romatius Firmus received 300,000 sesterces, elevating
him to the census equestris.355 Martial wrote an epigram about a Gaurus who
requested 100,000 sesterces from an unknown praetor to achieve the same goal.356

348
PLINY, Epist. VI, 32. See SHERWIN-WHITE (1966), p. 398.
349
PLINY, Epist. II, 4. See. SHERWIN-WHITE (1966), p. 149-150. Calvina is further unknown.
350
APULEIUS, Apol. 23, 2.
351
CICERO, Am. 73.
352
CICERO, Off. II, 62: ut altiorem gradum ascendant. See also Off. II, 21 where Cicero names
beneuolentia as one of the reasons why people supported others in their attempts to improve their
position.
353
CICERO, Fam. VIII, 9, 3. Although we cannot be sure that the estate was actually given to
Caelius.
354
PLINY, Epist. VI, 25, 3; SHERWIN-WHITE (1966), p. 385. See also SALLER (1982), p. 123.
355
PLINY, Epist. I, 19; SHERWIN-WHITE (1966), p. 129.
356
MARTIAL IV, 67.

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90

Closely related to status enhancing gifts were gifts meant to help politicians
sustain the financial burdens of office. Thus Cicero received grain and other
foodstuffs from Sicilian communities when he was aedile in 69, which enabled him
to lower the price of provisions considerably.357 Curio gave some panthers to Caelius
Rufus for the aedilician games in 50.358

h) Legal assistance.

Legal assistance was traditionally the prime duty of a patron towards his clients.
The relation between patronage and defence in court was so close that the term
patronus itself acquired the juridical-technical meaning of advocate or pleader in
court.359 The assistance was traditionally part of the generalised or balanced
reciprocity expected in patron client relations.360 This traditional arrangement began
to break down from at least the late third century, when patroni started asking
payment for their services in court. The government reacted by issuing the lex Cincia
(cf. supra p. 75). Although the ideal of the patron as defender in court remained very
much alive, the Cincian law was never very successful. Patrons continued to accept
valuable gifts from their clients in exchange for their services in court. Obviously,
these gifts were often simple payments and contemporaries regarded them as such.361
Nevertheless, although they were formally illegal, the attitude towards these gifts
was ambiguous. Quintilian thought that although a defence in court was a beneficium
that should not be sold, it should not be lost either. To defend others in court
provided a source of income (ratio adquirendi) and when clients refused to donate
something to their patron, they were unworthy of being defended. Those who spent
their time defending others in court were unable to use this time to apply themselves
to other ways of acquiring an income.362

357
PLUTARCH, Cic. 8, 1; cf. CICERO, Off. II, 59. CARCOPINO (1947) I, p. 154-155; DENIAUX
(1994) (see here for comparable cases).
358
CICERO, Fam. VIII, 9, 3.
359
Cf. NEUHAUSER (1958), p. 35-64; DAVID (1992); ROULAND (1979), p. 275-295.
360
On the notions of ‘generalised’ and ‘balanced’ reciprocity see SAHLINS (1972), p. 191-196.
361
Cf. e.g. TACITUS, Ann. XIII, 42: eius opprimendi gratia repetitum credebatur senatus
consultum poenaque Cinciae legis aduersum eos qui pretio orauissent.
362
QUINTILIAN, Inst. XII, 7, 10-12. See also TACITUS, Ann. XI, 7; Dial. 8-9; DAVID (1992), p.
129-130.

90
91

Although the attitude seems to have been less tolerant in Cicero’s day, reality was
much the same. Cicero criticised the ‘mercenary pacts in patrocinia’ with which
Crassus (among others) enriched himself.363 C. Aelius Paetus Staienus is discredited
in the Pro Cluentio for acquiring an income in the court.364 A hundred years later C.
Scribonius Curio and P. Clodius were still famous for the high price of their court
orations.365 Verres gave Hortensius a valuable statue of a sphinx to thank him for his
defence in court.366
Cicero himself was censured for being a mercennarius patronus.367 The reproach
may have been exaggerated, but was not unfounded. P. Sulla gave Cicero a ‘loan’ of
two million sesterces in exchange for his defence against the accusation of
complicity in Catiline’s conspiracy. It seems very unlikely that Cicero ever repaid the
money.368 Furthermore, Cicero had arranged with his consular colleague Antonius
Hybrida to receive part of the income from the province of Macedonia-Achaea,
which had been allotted to him but which he had handed over to Hybrida. It was not
until it became clear that Antonius would need Cicero to defend him in court against
a charge of repetundae for his malversation in the province, that the money was
finally given.369
Perhaps L. Papirius Paetus’s gift to Cicero of the library he had inherited from the
grammarian Ser. Claudius was also given in exchange for a defence in court. Cicero
jokingly notes that, according to Atticus’s friend Cincius, there was nothing in the lex
Cincia to prohibit this gift. The joke is a pun on the name of Cincius and should not
be taken seriously to mean that Cicero consulted with Cincius because he was
worried about the legality of the gift, as Carcopino believes. However, the two men
were

363
CICERO, Par. Stoic. 6, 46: mercedum pactiones in patrociniis.
364
CICERO, Clu.101: quaestus forensis. See DAVID (1992), p. 133.
365
TACITUS, Ann. XI, 7.
366
QUINTILIAN, Inst. VI, 3, 98; PLINY, N.H. XXIV, 48; PLUTARCH, Cic., 7, 6; Mor. 205B. See
DAVID (1992), p. 133-134; BRUNT (1980), p. 280; SHATZMAN (1975), p. 345; cf. ibid. p. 73. For
other examples see M. Aemilius Scaurus (cos. 115, SHATZMAN, o.c. p. 263), C. Erucius
(SHATZMAN, o.c. p. 272), Q. Arrius (SHATZMAN, o.c. p. 305).
367
PS.-SALLUST, In Cic. 3-5; DIO XLVI, 6-7. SMUTNY (1951-1952), p. 52; DAVID (1992), p.
129-130.
368
GELLIUS XII, 12. See also CICERO, Att. IV, 13, 6; 16, 10; IV, 5, 2; DAVID (1992), p. 131-132;
SMUTNY (1951-1952), p. 52.
369
cf. CICERO, Att. I, 12, 1; 13, 6; 14, 7; cf. CARCOPINO (1947) I, p. 206-230; SHACKLETON
BAILEY (1965-1970) I, p. 297.

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close friends and nothing indicates that Paetus’s gift had been negotiated.370
Nevertheless, traditional free patronal assistance as a beneficium never
disappeared. Pliny prided himself on never accepting anything by way of thanks for
his orations.371 Although Cicero occasionally did accept money in exchange for his
orations, nothing in his letters indicates that this was his standard practice. Patronage
in court was primarily a means to build a political power base. Reality shows a
continuum ranging from purely ‘mercenary’ patronage to the more traditional
defence as a beneficium within the framework of an amicitia or patron-client relation.
The very nature of amicitia as a relation based on mutual advantage or at least,
generating substantial benefits, usually made asking a price for defence in court
redundant because the relation itself required that a balance be struck. The borderline
between what was allowed and what was not allowed was not always clear. It is
difficult to imagine that assistance in court would have made substantial gifts illegal
for the duration of the friendship. Paetus’s gift may belong in this twilight zone
between payment and balanced reciprocity.
Most gifts of clients to their patrons as thanks for a defence in court were symbolic
and were given during the Saturnalia. Martial lists the different gifts that Restitutus
received: a gem from a girl that had been raped, works of art from a dealer in
antiques, a purple cloak from a trader in luxury clothes, an evening dress from a
troublemaker, a hare from a hunter and a poem from a poet.372
Of course, a patron could reap his reward on some later occasion, for instance,
when his client died and left him a substantial legacy or a share of the inheritance.
Gratia required that a return of – ideally – equal value was given. But this was self-
evident in the framework of reciprocity and the benefits a patron might hope for were
unspecified and uncertain.
The overall picture reminds us of the situation in the Greek countryside in the
1950s as described by Campbell, where the pastoral population largely depended on
lawyers for their contact with the administration.

370
CICERO, Att. I, 20, 7; II, 1, 12; SMUTNY (1951-1952), p. 51; TYRELL & PURSER (1904-
1933) I, p. 39, 243; SHACKLETON BAILEY (1965-1970) I, p. 343; DAVID (1992), p. 130-131.
Somehow, Carcopino doesn’t think it’s funny (CARCOPINO (1947) I, p. 149-152).
371
PLINY, Epist. V, 13, 8: in causis agendis non modo pactione dono munere uerum etiam xeniis
semper abstinui.
372
MARTIAL X, 87. See also MARTIAL IV, 46.

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The relation between the heads of family and their lawyers was patronal. The
lawyers acted as general protectors of the family and were often godfather of one or
more of the children. In turn, the shepherds offered respect, honour and political
support. At regular times of the year, the shepherds sent presents, such as cheese,
butter and occasionally – at Easter – a lamb. The closer the relation, the more the
lawyer’s fee became insignificant, … which did not stop the lawyer from pocketing
the money his clients gave him to bribe judges or officials!373

i) Political gifts.

It had long been customary in Rome for military leaders to reward their officers
and soldiers by distributing part of the booty after a successful campaign. Pompey
distributed about 100 million sesterces among his legati and officers and about 284
million among his soldiers. Lucullus gave his soldiers only about 4 million
sesterces.374 Although the money theoretically belonged to the state, the generals
were usually allowed to dispose of it as they pleased. This meant that the Donations
were considered to be beneficia of the generals, who used them to bind officers and
soldiers to themselves. Caesar’s liberalitas was famous. Q. Cicero was only one of
the many who were enriched by Caesar’s generosity.375 Caesar appointed C.
Trebatius Testa as military tribune on Cicero’s recommendation. Trebatius’s sole
object was to enrich himself in a minimum of time. Cicero advised him to try to
become Caesar’s intimate, but also warned him to be patient when he proved a little
hasty and acted as if Cicero’s letter of recommendation had been a letter of credit.376
Those who were closer to Caesar, such as L. Cornelius Balbus,377 his praefectus
fabrum in Spain and Gaul, the mysterious Mamurra,378 his praefectus

373
CAMPBELL (1964), p. 259-260.
374
FRANK (1933), p. 324-326. See also SHATZMAN (1975), p. 64-67.
375
CICERO, Att. XI, 9, 2; Q. fr. II, 11(12), 5; Fam. I, 9, 18; 21; cf. BENOEHR (1986b), p. 29.
376
CICERO, Fam. VII, 7; 8; 9; 9, 2-3; 13; 16, 3; 17, 1; 18, 1. See also BENOEHR (1986b), p. 29;
DENIAUX (1993a), p. 563-564.
377
cf. CICERO, Balb. 63: 'non nullorum particeps commodorum'; Att. VII, 7, 6; NICOLET (1966-
1974), p. 853-855; SHATZMAN (1975), p. 329-330.
378
SHACKLETON BAILEY (1965-1970) III, p. 306; NICOLET (1966-1974), p. 940-941;
BROUGHTON (1951-1986) III, p. 133-134. See CATULLUS 29; 57; SUETONIUS, Iul. 73, 1; PLINY,
N.H. XXXVI, 48; CICERO, Att. VII, 7, 6; XIII, 52, 1.

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fabrum in Gaul and Labienus,379 his lieutenant in Gaul, gathered fortunes. Not all
of Caesar’s allies were easily bought. Antony complained that Caesar had not given
him enough compared to the support he had always lent him.380
The same liberality was expected from provincial governors in times of peace.
Although legates and prefects were entitled to a maintenance allowance (cibaria)381
for their services, most expected more.382 Cicero had been so strict in his
administration of Cilicia that he had a surplus on his budget at the end of the year. He
left this in the province, much to the consternation of his staff, who had expected the
money to be divided among them. Cicero’s quaestor Mescinius Rufus complained
because – due to an administrative error – he had ‘lost’ 100,000 sesterces which he
had counted on getting.383 Even Cicero’s brother Quintus was disappointed by what
he had ‘earned’ as a legate of his brother.384 A few years earlier, when Pompey had
been appointed curator annonae, Quintus had been Pompey’s legate in Sardinia,
where he had acquired considerable wealth.385
It is beyond doubt that the recipient in these cases was considered to be morally
entitled to the ‘gifts’ he received. Nevertheless, it is remarkable that these
transactions continued to be framed in terms of liberalitas and that it was left at all
times in the hands of the governors and generals to decide who would get what. This
discretionary power seems even to have extended to the official remuneration that
legates and prefects were entitled to. When L. Gavius – one of Brutus’s procurators
in the East whom Cicero had appointed prefect –asked where he could get his
allowance (cibaria), Cicero curtly answered him that he was not in the habit of
paying people whose services he had not used.386 Another reason for Mescinius
Rufus’s discontent with Cicero was that Cicero himself had distributed the customary
beneficia (bonuses) among the military tribunes

379
SHATZMAN (1975), p. 375; CICERO, Att. VII, 7, 6; DIO XLI, 4, 4; PLUTARCH, Caes. 34, 3.
It did not stop Labienus from choosing Pompey’s side at the outbreak of the civil war. See BRUNT
(1986), p. 31.
380
CICERO, Phil. II, 72. See also SHATZMAN (1975), p. 297-300.
381
Theoretically the cibaria were a provision in kind meant as a compensation for the officers’
expenses, in reality they were usually paid in cash.
382
Cf. CICERO, 2 Verr. I, 36; Fam. V, 20, 7. See also SHATZMAN (1975), p. 53-63.
383
CICERO, Fam. V, 20, 8. See SHATZMAN (1975, p. 385.
384
CICERO, Att. VII, 1, 6; 3, 8. See also CATULLUS 10; 28.
385
CICERO, Q. fr. II, 5, 2 (4, 3).
386
CICERO, Att. VI, 3, 6. See also NICOLET (1966-1974), p. 896-897.

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and prefects, thus preventing Mescinius from acquiring gratia among these men.
Cicero subsequently confessed and apologised for his mistake.387 C. Memmius’s
‘cohort of friends’ in Bithynia-Pontus in 57 had the same complaints.388
In part, we see emerging here the later imperial ideology that represented every
administrative act of the emperor as a beneficium for which gratia was owed.389
However, in the Late Republic every official used the same technique, which ensured
competition among the elite and freedom of choice among the rank and file, while
under the Empire, the emperor was – ideologically – the sole source of all
‘administrative’ beneficia.

1.4 Sportulae
The most famous kind of gift a patron could offer his clients was the sportula
distributed at the daily salutation (salutatio) of clients to their patrons. The use of the
term was not restricted to the context of personal patronage. It also denoted small
sums of money or foodstuffs distributed as acts of euergetism. Originally, the
sportula had been a basket of food meant to replace a common meal. Later (at least
since the Early Empire) it became customary to give a small sum of money instead
and the term sportula was extended to cover such gifts. 390 Domitian (temporarily)
prohibited the giving of sportulae in money. The decree applied primarily to
sportulae publicae, but a number of epigrams of Martial show it also covered
sportulae given by patrons to their visiting clients.391
We should beware of confusing patronal sportulae with alms.392

387
CICERO, Fam. V, 20, 7. See also CICERO, Mur. 38 for the idea that praeda donare gives rise to
gratia.
388
CATULLUS 10, 9-13; 28.
389
Cf. MACMULLEN (1986), p. 519-521; VEYNE (1976), p. 539-791 (contra Von Premerstein
who considers the relation between emperor and subjects as essentially a form of patronage (VON
PREMERSTEIN (1937), p. 13-116); LEVI (1984). For salaried posts in particular see SALLER (1983),
p. 254.
390
Cf. LE GALL (1966), p. 1452-153; CLOUD (1989), p. 210-216; PRELL (1997), p. 260-263;
CARCOPINO (1939), p. 203-204; MAYER (1989), p. 16-20. On food and patronage in Rome see
D'ARMS (1984). Compare also DAMON (1997), p. 25-29 on food and parasites. On the symbolic and
social significance of food sharing see FUSTEL DE COULANGES (1864), p. 134; SCHMITT
PANTEL (1992). On the symbolic value of food in reciprocity systems see SAHLINS (1972), p. 215-
219; FOSTER (1977), p. 24.
391
SUETONIUS, Dom. 7, 1; MARTIAL III, 7; 30; 60.
392
On alms and begging see PRELL (1997), p. 67-78; BOLKESTEIN (1939), p. 202-214, 337-341;
HANDS (1968), p. 46-47. For the conceptual difference between gifts in the framework of reciprocity
relations and alms see MAUSS (1923-1924), p. 58-59; FOSTER (1977), p. 24. See also GOODELL
(1985), p. 253 (and passim) on the difference between patronage and paternalism.

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96

Although in both cases the sums involved could be small, a sportula given by a
patron to his client was by definition a gift within the framework of a personal
relationship based on reciprocity. Whereas the client was entitled to his sportula, the
patron was entitled to gratia expressed par excellence in the act of the salutatio that
enhanced the patron’s honour and that in turn entitled the client to gratia, expressed
by the sportula he received.
Sportulae have long been considered an inherent feature of Roman patronage over
the poor since at least the Late Republic. Le Gall, however, points out that only
Martial and Juvenal mention daily sportulae to clients.393 Seneca refers
contemptuously to the mass clientelae of C. Gracchus and M. Livius Drusus without
mentioning any fee the clients would have received at their daily salutatio. Although
he denounces the impersonality of the demagogues’ relationship with their so-called
friends, Seneca does not claim that these ‘friends’ were bought. This could indicate
that the phenomenon did not yet exist in the Late Republic and perhaps not even in
Seneca’s time.394
Duncan Cloud has shown that Juvenal’s representations of patronage are very
unreliable.395 The documentary basis for daily patronal sportulae, therefore, is very
slim. Nevertheless, Le Gall – in my view correctly – accepts the historicity of the
phenomenon, although he minimises its importance. However exceptional Martial
and Juvenal may be, sportula occur too frequently and too casually in their work to
be entirely invented by them.
Saller notes that the lack of references to daily sportulae in earlier authors is not
necessarily significant, since Seneca and Cicero wrote from a different point of view
and in a different genre. Authors such as Pliny the Younger and Tacitus, who were
contemporaries of Martial and Juvenal, do not mention the custom either. However,
this argument turns

393
LE GALL (1966), p. 1452; LE GALL (1972). MARTIAL I, 59; III, 30; VI, 88; X, 74; 75;
JUVENAL 1, 120. COLUMELLA, R.R., praef. 9 and SENECA Dial.X, 14, 3 (Breu. Vit.) seem to refer
to the custom when they mention a salutator mercennarius and a meritoria salutatio, but their words are
ambiguous enough to comprise occasional (but substantial) gifts. The context of both passages implies
that the merces involved was considerable while sportulae were only small hand-gifts. Contra see HUG
(1920), col. 2068.
394
SENECA, Ben. VI, 33, 4.
395
CLOUD (1989).

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the evidence upside down and generalises the exceptions (Martial and Juvenal).
We may note also that Horace, who wrote in the same genre and repeatedly puts
himself in the position of client, does not mention daily sportulae in money. The
same holds true for Persius. Saller claims that ‘whether in the form of money or not,
there must surely have been some concrete reward to encourage clients to endure the
drudgery (of the salutatio)’.396 However, this is self-evident in the context of
relations based on mutual advantage as amicitia or patronage and says nothing about
the nature of this reward, viz. daily small sums of money or more occasional, less
predictable but more substantial benefits.
Rouland believes that although sportulae as such did not exist before the Early
Empire the difference between them and the prodigality connected with mass
clienteles of the Late Republic (largitiones) was small. ‘Ces largitiones
représentaient évidemment la forme la plus rudimentaire d’assistance
économique’.397 According to Rouland, these largitiones indicate that a new kind of
impersonal mass clientelae had developed, in which the clients tried to gain an
income, while the patrons tried to surround themselves with personal militias. This
seems in accordance with Cicero’s remark in the Pro Murena that escorts
(adsectationes) were formed mainly of poor clients (homines tenues) who had no
other way to oblige their patrons and who were not hindered by occupations
(occupationes) of their own.398 Although Rouland concedes that these poor clients
may have hoped for their patrons to help them start a small business of their own by
giving them a place to work or money to invest, he points out that such aid is not
attested and prefers to interpret the clients’ support as motivated by the need for food,
which lay at the basis of the later sportulae.399
I agree with Rouland in so far that sportulae in the context of patronage presented
essentially a developed form of largitio and so an earlier form of irregular sportulae
may have existed by the Late Republic. A different question altogether, however, is
the ‘standard amount’ of 100 quadrantes for the ‘classic’ sportula that Martial and
Juvenal present. Virtually all scholars today take this sum literally as the symbolic
gift of a patron

396
SALLER (1982), p. 128, n. 57.
397
ROULAND (1979), p. 273; ROULAND (1981), p. 143.
398
CICERO, Mur. 70-71.
399
ROULAND (1979), p. 271-275. For the idea that patrons could help their clients set up a small
business see MARSH (1971), p. 32; SKYDSGAARD (1976).

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to his clients on their daily salutatio.400 However, a quadrans had been the lowest
denomination in the Roman monetary system since the Late Republic. As such the
term was commonly used to indicate something of small value, as the English penny
in expressions like ‘I haven’t got a penny’. Thus we read in Martial: ‘There is not a
quadrans in my moneybox’, and ‘No one will lend you a quadrans’.401 To take ‘a
quadrans’ literally in these expression is to miss the point. There was very little one
could buy with a quadrans. The entrance to a common bathhouse cost one quadrans
but this is about the only thing we know could be bought for such a small sum.402
According to Cicero and Caelius Rufus, Clodia’s nickname ‘Quadrantaria’ would
have derived from her hanging around in bathhouses for men. Plutarch’s explanation
of the nickname – a lover would have sent her a purse full of quadrantes instead of
one full of denarii – illustrates the aura of cheapness surrounding both Clodia and the
quadrans.403
Plutarch’s anecdote indicates that the proverbial worthlessness of one quadrans
could be transferred to a number of quadrantes. In one of Martial’s epigrams we hear
of a meal of 100 quadrantes. The link with sportulae – that were originally
substitutes for common meals – is obvious. The qualification is bizarre if we were to
take the sum of 100 quadrantes literally since the quadrans was not a unit of
reckoning. In the sense of ‘a cheap meal’ however, Martial’s paraphrase makes
perfect sense.404
Another indication that the sum of 100 quadrantes should not be taken literally can
be found in another epigram of Martial where he mentions centum plumbei.
Plumbeus (nummus) – literally a coin made of lead and, therefore, false – is a term
used already by Plautus to denote a small coin of little value. Centum plumbei,
therefore, are ‘100 worthless coins’ and

400
MARTIAL I, 59; VI, 88; X, 74; 75; JUVENAL 1, 120. See e.g. DUNCAN-JONES (1982), p.
138; MROZEK (1975); ROULAND (1979), p. 549-551; SALLER (1982), p. 128; SALLER (1983), p.
252; PRELL (1997), p. 262; CARCOPINO (1939), p. 204. MARTIAL III, 30 mentions one quadrans.
401
MARTIAL II, 44, 9: quadrans mihi nullus est in arca; MARTIAL VII, 10, 12: quadrantem nemo
iam tibi credit. See also MARTIAL V, 32; HORACE, Serm. II, 3, 93; JUVENAL 7, 8. For the quadrans
as smallest denomination see CRAWFORD (1970), p. 40-41; CRAWFORD (1985), p. 177.
402
Cf. DUNCAN-JONES (1982), p. 236.
403
CICERO, Cael. 62; QUINTILIAN, Inst. VIII, 6, 53; PLUTARCH, Cic., 29, 4.
404
MARTIAL IV, 68: Inuitas centum quadrantibus et bene cenas. / Vt cenem inuitor, Sexte, an ut
inuideam?

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not literally ‘100 false coins’.405 Finally, we may note the standard sum used to
bequeath a maximum legatum partitionis of ‘100 nummi’ less than half the
inheritance.406
How unlikely it is that the sum of 100 quadrantes should be taken literally
becomes clear when we try to imagine the implications. Since a quadrans was not a
monetary unit, it follows that we should have to imagine 100 small copper coins
given from hand to hand. The patron would have to make sure that he had a large
stock of small change at hand to distribute daily. Even if we were to accept that
clients were paid a daily fee amounting to 100 quadrantes, such an arrangement
would be absurd since the patron could give the same amount in the form of 6
sesterces and one quadrans or 1 denarius, 2 sesterces and one quadrans.
Consequently, when Martial and Juvenal mention sportulae of 100 quadrantes, we
should not think in terms of an exact sum of 6,25 sesterces, but in terms of a
proverbial ‘bag of small change’.407

1.5 Motives behind substantial gifts.


As a rule, gifts pretended to be disinterested, a pure response to sincere feelings of
affection and goodwill. Of course, affection and goodwill (beneuolentia) were not
always feigned. Atticus’s Donations to Cicero, Brutus and Marius the younger surely
belong in this category, since Atticus took great risks by making them.
However, as we saw in our chapter on the moral matrix of friendship, to the
Roman mind affection and goodwill cannot be dissociated from gratia and fides. As
expressions of affection and goodwill, gifts also reflected fides and gratia. That is to
say, gifts were also a social obligation (officium). The acknowledgement of this
obligation was socially prescribed and subject to social pressures. Friendship
required help in times of need. A friend in need is a friend indeed, therefore, to refuse
help to a friend in need is an act of betrayal. The very fact that the code of patronage
and liberalitas explicitly mentioned financial help to friends, patrons and clients in
particular situations (debts, fines, kidnapping, providing dowries) is illustrative of the
social nature of the personal obligation to

405
MARTIAL X, 74; cf. PLAUTUS, Cas. 248; Trin. 962; Most. 892.
406
CICERO, Leg. 2, 53 (devised by the jurist Scaevola (the pontifex)).
407
Public sportulae for the lower classes were often 4 sesterces a head, sometimes less (1-2
sesterces) sometimes more (8-12), but these were exceptional handouts, not daily allowances. See
MROZEK (1975), p. 97-102.

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100

make gifts on these occasions. In many cases affection and goodwill were
subservient to honour and prestige (existimatio) as motivations for gift-giving.
So gifts could be made because the benefactor felt he had an obligation (officium)
to do so, for example, to help a friend in need. Cicero’s support of Montanus clearly
classifies as such, since Cicero himself explains to Atticus that the support ‘pertained
to his obligations’ (pertinet ad officium nostrum) toward Montanus.408 Pliny’s gifts to
Calvina and to Quintilianus’s daughter as well may be considered as
acknowledgements of a social obligation, since neither of the women seems to have
had much to offer in return.409 A number of Donations were made in response to a
defence in court, without becoming ‘payments’ in a strictly economic sense. Thus
Restitutus in Martial received numerous, usually small, gifts from his clients in
court.410 Papirius Paetus’s gift of a library to Cicero may also have been donated as a
token of gratia for a defence in court.411 Cicero counted on his amici to support his
wife Terentia financially while he was in exile and after his return he again appealed
to them to for help to repay his brother Quintus.412
The social nature of the obligation to give, was deeply rooted in the social identity
of the Roman aristocrat. A notable was primarily a homo liberalis and by the time of
the Late Republic this implied first and foremost generosity.413 Numerous Donations
were meant to uphold the much-cherished image of liberalitas. A substantial
Donation enhanced or upheld the giver’s social status. Scipio’s early payment of the
dowries of his adoptive sisters could be classified as such a gift. Neither his brothers
in law, nor anybody else had expected him to make such a generous offer.
Consequently, there was no social pressure to act as he did.414 The numerous gifts to
Martial himself and to other poets mentioned in Martial’s epigrams and the gifts to
other poets like Horace also belong in this category. By patronising the arts (and
sciences) Roman notables displayed themselves not only as cultivated persons, but
also as true homines liberales. Moreover, through the talents of their protégés they
could

408
CICERO, Att. XII, 52, 1.
409
PLINY, Epist. II, 4 (Calvina); VI, 32 (Quintilianus).
410
MARTIAL X, 87.
411
CICERO, Att. I, 20, 7; II, 1, 12 (cf. supra p. 91 on the case).
412
CICERO, Fam. XIV, 1, 5; 2, 3; Att. IV, 2, 7 (Terentia); Q. fr. I, 3, 7; Att. IV, 3, 6 (Quintus).
413
Cf. VEYNE (1976), p. 17. On liberalitas see supra p. 35-37 and KLOFT (1970), p. 5-72.
414
POLYBIUS XXXI, 27, 1-16. See also supra p. 88 on the case.

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aspire to live on in the memory of men and so obtain immortality. Finally, the
essence of sportula – clientelae was precisely the enhancement and confirmation of
their patrons social position. Not coincidentally, the sportulae were given only at the
salutatio, which together with adsectationes formed a veritable ritual to express and
thus confirm and enhance the patron’s status. Of course, the principle also lay at the
heart of euergetism, but this is beyond the scope of this work. I just want to mention
Atticus’s gift/loan to Buthrotum to enable the city to pay the fine which Caesar had
imposed on it.415
So in a sense the obligation that motivated a benefactor was not just directed
towards the recipient whom he was expected to help. It was also directed towards
himself and to society at large, in which he occupied a prominent position: ‘noblesse
oblige’. By making substantial gifts one confirmed one’s status in society; it proved
that a person was worthy to occupy an elevated position. Hence it increased or
upheld that person’s dignitas. Not surprisingly the term dignitas was semantically
derived from decet – ‘to be appropriate’. Dignitas required appropriate actions.416
However, Donations between friends, patrons and clients were first and foremost
part of the reciprocal exchange around which these relations were construed. As
such, they could be conceived as a fair ‘return’ for favours received, thus constituting
the social obligation I discussed above, but they could also be seen as a ‘down
payment’ on future services. The strong emphasis on the duty of gratia and the need
to reciprocate meant that a Donation constituted an effective way to oblige the
recipient to offer future services. By making a substantial gift, the giver thus ensured
himself of future support from the recipient. Provided the recipient was a homo
gratus, the Donation could be seen as a worthwhile investment. Martial sums up the
dangers threatening one’s patrimony: cash can be stolen, houses can burn, debtors
can default, crops can fail, ships can sink, but what you have given to a friend is
wealth beyond danger.417

415
See VEYNE (1976).
416
Cf. HELLEGOUARC’H (1963), p. 389-401. See also supra p. 45-48 on the meaning and
significance of dignitas.
417
MARTIAL V, 42: Extra fortunam est quidquid donatur amicis: / Quas dederis, solas semper
habebis opes (vv. 7-8).

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102

Of course, as any ethical norm, this rule was prone to manipulation. Accepting a
gift implied accepting the obligation to return a gift or favour. Seneca warns,
therefore, not to accept favours from everyone.418 According to Martial, gifts were
like bait on an angler’s hook.419 Cato was well aware of this when he refused to
accept gifts from Deiotarus, the tetrarch and later king of Galatia, and ordered his
amici to do the same.420 ‘Whoever gives a lot, expects a lot in return’.421 Legacy
hunters caught their prey by sending valuable gifts to their victims.422 One of
Martial’s epigrams depicts a ruined legacy hunter, who fell victim to his own game
when his prey kept changing his will. Every time the latter rewrote his ‘last’ will, the
legacy hunter felt himself obliged to send new valuable gifts. In the end, his efforts
cost him more than Croesus himself could have borne. 423 Cicero called upon his
fellow senators in 43 to declare Antony a public enemy and warned them that no one
should use his amicitia or family ties (cognatio) with Antony or the fact that Antony
had given him money as an excuse for not agreeing with this motion.424 In fact
Antony was merely following Caesar’s example, who had bound numerous senators
by giving or lending them vast sums of money.425
The implication is that gifts were effective to ensure support and advantages, both
in politics and in everyday life. This in itself is not very surprising because a gift –
like any beneficium – did not come alone. As the expression of the desire to continue
an existing relationship, it carried with it the promise of more.426 The ingratitude of
the recipient would imply the renunciation of the reciprocity relation and, therefore,
the loss of all future benefits, including the ultimate gift: a share of the inheritance.
So calculation and personal advantage further upheld both the social and moral
obligation to give and to reciprocate.

418
SENECA, Ben. II, 18, 2.
419
MARTIAL V, 18, 7-10: Imitantur hamos dona: namque quis nescit, / Auidum uorata decipi
scarum musca? / Quotiens amico diuiti nihil donat, / O Quintiane, liberalis est pauper; MARTIAL VI,
63, 5-6: Munera magna tamen misit. Sed misit in hamo; / Et piscatorem piscis amare potest?. See
MARTIAL VIII, 2.
420
PLUTARCH, Cat. Min. 15.
421
MARTIAL V, 59: Quisquis magna dedit, uoluit sibi magna remitti.
422
MARTIAL IV, 56; V, 39; VI, 62; 63; IX, 9; 48; cf. also DIO CHRYSOSTOMUS, VII, 81-93
(Eub.).
423
MARTIAL V, 39.
424
CICERO, Phil.V, 6; cf. GELZER (1912), p. 91-102.
425
SHATZMAN (1975), p. 289-290, 297-304, 396.
426
Cf. MICHEL (1962), p. 454: ‘Avoir reçu est un titre à recevoir encore’.

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1.6 The economic importance of gift-exchange


Gifts sustained a circulation of goods and could in some cases determine the
economic position of the receivers. We should distinguish between occasional
Donations of capital goods, regular or occasional Donations of consumer goods and
‘risk-buffering’ gifts.

a) Capital goods.

I have already mentioned the hypothesis that patrons helped their clients by giving
them a shop or some capital to start a business and we have also noted Rouland’s
objection that – although the possibility cannot be excluded – we have no indications
of such patronal assistance to clients.427 However, we have several examples of
patrons donating productive land to their clients, or amici to their amici minores.
Horace was given an estate by Maecenas, Volteius Mena a small farmstead by
Philippus, Caelius Rufus a praedium rusticum by C. Scribonius Curio. Pompey gave
a large piece of land in the neighbourhood of Rome to Balbus, who used it to build a
suburban villa on (not a capital good). Although Balbus’s horti did not constitute in
itself a capital good, suburban villas were often connected with productive estates. 428
It is impossible to estimate the importance of Donations of land, but Martial’s
treatment of the theme indicates that it was a much appreciated and exceptional
gift.429 Mena’s agellus cost 14,000 sesterces. It comprised at least one field and a
vineyard. There were some small livestock (sheep and goats), an ox to plough the
field and a horse on which to ride to town. Clearly, this was only a small farm from
the viewpoint of a Roman knight like Horace, not from the perspective of the vast
majority of peasants.430 Horace’s own estate was divided into 5 lots that were let
out.431 The ‘little field’ Pliny gave to his nurse cost 100,000 sesterces – as much as
the census qualification for the prima classis and for the members of many municipal
councils.432 In all three cases we see that the

427
MARSH (1971), p. 32; SKYDSGAARD (1976); ROULAND (1979), p. 271-275.
428
Cf. supra p. 81-82 for the cases in question.
429
Cf. WHITE (1978), p. 91.
430
HORACE, Epist. I, 7, 46-95. But how many farmers in Latin and Campania were poor peasants?
431
HORACE, Epist. I, 7; 14.
432
PLINY, Epist. VI, 3. On 100, 000 sesterces as minimum qualification for the prima classis and
for many municipal council members see RATHBONE (1993), p. 129-132.

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104

estates given were large enough to live on comfortably. However, only in the case
of Horace himself was the estate given large enough to permit him to achieve the
honestum otium befitting a knight. Mena’s farm was too modest even to dispense
with his personal labour.433

b) Allowances and life(style) support.

Amicitia and patronage, therefore, could provide an avenue for the acquisition of
capital goods ensuring the recipient a more or less adequate income. By far the
majority of gifts, however, consisted of money or movables, given on a more or less
regular basis and constituting (potentially) an additional source of income. What was
the particular importance of these gifts? To what extent did they determine the
standard of living of the recipients? What was the global social and economic
importance of such gifts? Who had access to the system?
Opinions on the subject diverge. White believes that – at least insofar as the poets
are concerned – the importance of gifts was small. Most gifts were symbolic and had
only a small to marginal importance for the receivers, who in any case were expected
to make return gifts of approximately equal value. White’s opinion is based mainly
on the fact that poets generally belonged to the upper classes and were either equites
or even senators. He also refers to a few passages in Seneca, Fronto and Cicero
showing (according to White) that it was not customary to make valuable gifts.434
Saller has criticised White’s interpretations. It is true that Cicero condemned
largitiones as detrimental to a man’s patrimony, but he did not imply that such
largesse did not occur. Although Fronto’s letter to Appianus is a long plea against
valuable gifts, he too was clearly reacting against a social reality of which he
disapproved. Seneca mentions Donations of money only in the second category of
services (beneficia utilia)435, but within this category they appear as the first example.
Moreover, the distinction drawn by Seneca between services that are useful
(beneficia utilia) and services that are pleasant (beneficia iucunda) and the fact that
Donations of money are situated in the former category

433
Cf. also SALLER (1983), p. 248-251.
434
WHITE (1978); CICERO, Off. II, 52; SENECA, Ben. I, 11; FRONTO, Epist. Graec. 5 (ed.
HAINES (Loeb), p. 269-279). On poets belonging to the ordo equester see TAYLOR (1968).
435
The first category is that of the beneficia necessaria, the third that of the beneficia iucunda.

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105

indicates that the intended Donations were substantial enough to be accounted


‘useful’, i.e. they must have been substantial enough not to be discounted as merely
symbolic .436
As far as the status of eques Romanus that most poets enjoyed is concerned, the
problem is that one’s ‘needs’ depend on the social level on which one lives.
Although the yearly income of 20,000 sesterces Horace and Martial enjoyed was
undoubtedly a considerable sum for the vast majority of the Roman population, it
was hardly sufficient to cover the expenses expected from a Roman knight
frequenting senatorial circles in Rome. Consequently Martial, according to Saller,
continued to depend on the traditional obligations of a client (officia clientium) – first
and foremost the salutatio – to assure a continuous flow of money and goods in the
form of patronal gifts, with which to uphold the standard of living expected from
him. According to Saller, the very fact that Martial chose to continue enduring the
‘drudgery’ of the salutatio indicates that his lifestyle depended on it.437
The last argument is not very convincing, since the ‘burden of the salutatio’ had
been a literary topos since Horace at least. Nevertheless, the list of Donations
discussed earlier shows that White’s opinion that substantial Donations were only
marginally important is unlikely to be correct. The list of substantial gifts is long. In
exchange, the patrons did not expect counter favours of equal value, but poems
glorifying and immortalising them and making them stand against their peers as
protectors of the arts.438
It is harder to evaluate the global social and economic importance of life(style)
supporting gifts. Saller concludes that ‘gift-exchange is so pervasive in human
culture that its existence cannot in itself tell us anything very significant about
Roman society. What is interesting is that the living standard of a number of people
in Rome depended on gifts.’439 However, the living standard of how many people
and to which social classes did these people belong? I will argue that although the
number of people depending on gifts to maintain their standard of living may have
been large, they did not form a cross-section of society. Two typical groups emerge
from our sources: the cultural elite (or part of it) and what I will call the ‘Roman
middle classes’. The truly poor were left out.

436
SALLER (1983); cf. also SALLER (1982), p. 123-124.
437
SALLER (1983), p. 250-251.
438
Cf. also SALLER (1983), p. 256-257.
439
SALLER (1982), p. 123.

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106

(i) The cultural elite


Martial is not an isolated case. According to Juvenal, Statius too would have
depended on financial support from his patrons to survive.440 In the opening lines of
his book of Satires, Persius proclaimed that as parrots and magpies were taught our
words by appealing to their belly, ‘master of arts and bestower of genius, skilful
seeker of words withheld’, so ‘crow poets and magpie poetesses’ were brought by
glittering gold ‘to chant Pegasian nectar’.441
Poets were not the only high-class clients to depend on patronal assistance. Cicero
offered hospitality to the stoic philosopher Diodotus for years until he died in 61
leaving Cicero 100,000 sesterces.442 A freedman of Atticus, the grammarian
Dionysius, was Cicero’s protégé for years, whose library he helped repair and
maintain and whose children he educated.443 Calpurnius Piso Caesoninus was patron
of the Epicurean philosopher Philodemus from Gadara (also befriended to Cicero).444
Conversely, Heraclides from Temnos tried in vain to make a fortune by teaching
rhetoric to the children of senators in Rome.445 Pliny was patron to the philosopher
Artemidorus, whose debts he paid.446 We don’t know what induced Pompey to bring
Theophanes from Mitylene along with him to Rome, but Theophanes was
remembered as Pompey’s personal historian.447 Along with poets, grammarians,
orators and philosophers came to the capital where they tried to find a place in the
amicitiae of the rich and mighty. Along with the poets they strove to obtain
economic independence. Some – like Theophanes – achieved their

440
JUVENAL 7, 86-87: cum fregit subsellia uersu / esurit, intactam Paridi nisi uendit Agauen. See
also Schol. ad Iuu. h.l.: salarium enim ob nimiam paupertatem ab eodem consequabatur.
441
PERSIUS Prol. 8-14: quis expediuit psittaco suum 'chaere' / picamque docuit nostra uerba
conari? / magister artis ingenique largitor / uenter, negatas artifex sequi uoces. / quod si dolosi spes
refulserit nummi, / coruos poetas et poetridas picas / cantare credas Pegaseium nectar. See also Schol.
ad Pers. h.l. ostendit se primum coepisse causa uictus, ut salarium mereretur.
442
ARNIM (1905); GRIMAL (1986), p. 43, 46, 275; CARCOPINO (1947), p. 168-169 (wrongly
assumes that Diodotus was a freedman of Cicero). See CICERO, Luc. 2, 115; Brut. 309, Tusc. Disp.
113; N. D. 1, 7, 1; Att. II, 20, 6; Fam. XIII, 16, 4.
443
Cf. TREGGIARI (1969), p. 119-121; PEREZ (1981), p. 191, 193-194
444
PHILIPPSON (1938); SIRINELLI (1993), p. 178.
445
CICERO, Flacc. 402-51. See ZEHNACKER (1979).
446
ARNIM (1896); SHERWIN WHITE (1966), p. 239-240.
447
LAQUEUR (1934; NICOLET (1966-1974), p. 988; SUOLAHTI (1955), p. 269; BROUGHTON
(1951-1986) II, p. 284; DE LA VILLE DE MIRMONT (1905), p. 165-206

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107

goal with the help of their patron, while others remained dependants for the rest of
their lives. The honestum otium that the cultural elite strove for lay at the end of a
long career and could generally be attained only through the assiduous assistance of a
patron.448 Only the orators could hope to build an independent career as lawyers.
It would seem, therefore, that the intellectual and cultural elite largely depended
on patronage for their economic position. This is not to say that they were fettered to
their patrons. At least the most gifted among them, like Horace or Martial, had no
trouble finding other sponsors and protectors if necessary. In a way, their talent
guaranteed their independence. But, as long as they did not possess enough land or
wealth to assure them the honestum otium they desired, they depended on patronage
and friendship to maintain their standard of living. Thus we might say that although
they did not depend on a particular patron or amicus magnus, they did depend on
patronage and friendship.
Nevertheless, this cultural elite –, however, important it may have been for our
knowledge of the Ancient World – represented only a tiny fraction of society. What
about the rest of the population?

(ii) Sportula-clients
This brings us back to the sportula-clients – the great mass of little clients whose
main obligation and contribution to the relation with their patron consisted of daily
salutations (salutationes), escorts (adsectationes) and various small services in
exchange for small gifts of money, utensils or commodities. I have already
mentioned my scepticism towards daily sportulae of a standard sum connected with
the salutatio. Nevertheless, it is beyond doubt that at least some clients and ‘minor
friends’ lived off the generosity of their patrons and Martial’s and Juvenal’s
sportulae may be considered a caricature of this generosity.449
Patronal sportulae have long been considered fees for idleness and the clients who
came for them were thought of as poor devils and ‘Schmarotzer der grossen
Gesellschaft’ – parasites of high society.450

448
Except, of course, when they already belonged to the ordo equester or senatorius, like Cicero,
Pliny, Seneca and Tacitus. On literary and cultural patronage see WHITE (1975); WHITE (1978);
WHITE (1982); WHITE (1993) (see p. 211-222 for a list of Latin poets and their social status);
GIBSON (1995); GOLD (1982); SALLER (1983); VAN HEMELRIJK (1999), p. 97-145.
449
See COLUMELLA, R.R. praef. 9 and SENECA, Dial. X, 14, 3. (Breu. Vit.).
450
VON PREMERSTEIN (1937), p. 116.

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108

Le Gall opposes this interpretation and tries to show that the average sportula did
not constitute a sufficient alternative income.451 Rouland too asserts that the average
sportula was not enough to live on. ‘Ni le frumentationes ni les congiaires, ni la
sportule, ni même ces trois ressources additionnées ne peuvent constituter à elles
seules une source de revenus suffisante’.452
However, a person’s need for money can only be measured by his expenses and
these in turn depend not just on his physical needs but are determined to a large
extent by his social position. In this respect, Rouland’s treatment of the economic
aspects of patronal sportulae is not convincing and follows almost entirely the
assertions of Martial and Juvenal.
Le Gall estimates the number of beneficiaries at a maximum of 135,000 in Rome
itself. Rouland notes that the group of patrons must have been limited, since only a
few were able to distribute 100 quadrantes a day to a large number of clients.453
Although the sum of 100 quadrantes, in my view, is merely symbolic – making the
argument meaningless – the aggregated potential of smaller clientelae should not be
underestimated. If we assume, for example, that the 5% richest families each
supported an average of only five poor families, then patronage had the potential of
offering social support to a quarter of the population. Such figures are meaningless in
themselves, but the argument does lead us to another important question. Who were
these ‘potential x %’, or putting it differently: did Roman patronage ever incline to
fulfil its potential role as a social security system?
Although I believe that the standard sum of 100 quadrantes for a daily sportula is
fictitious, as a standard symbolic sum it does provide us with some information on
the living standard of those who were deemed ‘poor’ in the eyes of Martial and
Juvenal. Would a sum of 6,25 sesterces a day have been considered small change by
every client? What does the sum represent in terms of purchasing power?
Six sesterces and one as a day imply a maximum of 2281,25 sesterces a year,
although we should probably account for a lesser number of salutationes in reality.
This is well above what Frier termed subsistence

451
LE GALL (1966); LE GALL (1972).
452
ROULAND (1979), p. 549; ROULAND (1981), p. 270-273.
453
LE GALL (1972), p. 272; ROULAND (1979), p. 548, n. 313.

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109

annuities.454 Since most clients tried to have as many patrons as possible, we


would have to multiply this amount by the number of patrons a client courted.
Hopkins has estimated minimum annual consumption at subsistence level at about
250 kg. of wheat equivalent. The price of grain in pre-industrial society was, of
course, notoriously unstable, but a price of 2-4 sesterces per modius (approximately
6.5 kg.) seems to have been considered normal throughout Italy during the Late
Republic and Early Empire. Prices in Rome were considerably higher and are
estimated by Duncan-Jones at 6-8 sesterces per modius in normal years. This would
imply a theoretical minimum subsistence income in monetary terms in Italy outside
of Rome ranging from approximately 76-152 sesterces to 229-305 sesterces in Rome
itself. Prell estimates the subsistence needs of a family of four (with two children) in
Rome at a minimum of 876 sesterces a year. However, this was living on the edge of
starvation, well below any poverty threshold imaginable. Mrozek estimates average
expenditure for food in Pompeii at about 730 sesterces per adult, a quarter of which
would have been for bread.455
Trajan’s alimenta arrangement ranged from 10 sesterces a month for illegitimate
girls to 16 sesterces a month for legitimate boys. Private alimenta arrangements
ranged from 16 sesterces a month for girls to 20 sesterces for boys. A common
legionary soldier received 900 sesterces a year since Caesar. Domitian raised army
pay for common legionaries to 1200 sesterces a year. Costs for food, clothing and
equipment were deducted from this sum.456 Pliny the Younger probably paid the
freedmen in his service 70-85 sesterces a month (840- 1020 sesterces a year).457 In
the Digest, we find monthly wages ranging from 40-83 sesterces (480-996 sesterces a
year).458 The slaves of the familia publica responsible for the

454
FRIER (1993), p. 230. Frier’s largest ‘subsistence’ annuity is 1000 sesterces (Dig. XXXIV, 1, 20,
pr.).
455
HOPKINS (1984), p. 118; DUNCAN-JONES (1982), p. 144-147, 345; PRELL (1997), p. 189;
MROZEK (1975), p. 27-36. For general estimates of purchasing power and the cost of living see PRELL
(1997), p. 171-212; FREYBERG (1980), p. 84-89; DUNCAN-JONES (1978).
456
On army pay see GABBA (1978); JAHN (1984); SPEIDEL (1973); SPEIDEL (1992)
457
The figure may be inferred from the fund of 1, 866, 666 sesterces he had intended to set up in his
will for the alimenta of his freedmen: CIL V, 5262 (= ILS 2927); DUNCAN-JONES (1982), p. 29-30
458
DUNCAN-JONES (1982), p. 144-147. See also Dig. XXXIII, 1, 13, pr. (Scaevola): 600 sesterces
a year for a procurator; Dig. XXXIII, 1, 10, pr. (Papinianus): 1000 sesterces a year plus free lodging for
a procurator.

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110

water supply in Rome made about 1000 sesterces a year.459 Inscriptions mention
daily wages ranging from 1-6.5 sesterces, depending on the qualifications of the
workers.460 According to Cicero, an unskilled hired labourer could make 3 sesterces a
day. At the time there were at least 48 fixed public holidays to which each year some
extra days were added for special occasions, implying a maximum urban working
year of approximately 300 days and, therefore, a yearly income of about 900
sesterces (provided, of course, our labourer was never without a job).461 MacMullen
believes that the large majority of the population of Rome under the Early Empire
made less than 2000 sesterces a year.462
The inevitable conclusion is that 100 quadrantes a day was only a small sum from
the perspective of the upper classes, to which the poets belonged. As we saw, most
poets we know belonged to the ordo equester implying a property worth at least
400,000 sesterces, which would guarantee them – in normal years – an income of at
least 20,000 sesterces a year.463 One hundred quadrantes a day was certainly no
‘small change’ to the average Roman. Outside the capital, where life was two to four
times less expensive, the sum had a purchasing power beyond the reach of ordinary
people. If we take the benefits in kind that clients received from their patrons into
account – such as clothes, food, kitchenware, and so forth – and the possibility for
clients to have more than one patron, it becomes clear that a standard fee of 100
quadrantes a day would have represented a handsome income even for most of the
urban residents of Rome. If the clients in question had a small business of their own
and if they were on the official register for free grain, their total income would be
easily fivefold that of the majority of their fellow-citizens. Consequently, those
deemed ‘poor’ clients by Martial and Juvenal were only ‘poor’ from the perspective
of the aristocracy, not from that of the common people.

459
Cf. DUNCAN-JONES (1982), p. 73.
460
E.g. CIL IV, 4000 (Pompeii, 1.25 sesterces), IV, 6877 (Pompeii, 4 sesterces); MROZEK (1975),
p. 74-75; DUNCAN-JONES (1982), p. 10-12.
461
CICERO, Rosc. Com. 28.On holidays see HARMON (1998), p. 475-476; MICHELS (1967), p.
69-83; DE ROBERTIS (1963), p. 200-211.
462
MACMULLEN (1974), p. 120.
463
Cf. WHITE (1978), p. 88-89; NICOLET (1966-1974), p. 444-456; TAYLOR (1968). See
WHITE (1993), p. 211-222 for a list of all known poets with their social status. Compare Suetonius’s
anecdote about the misery 40 aurei (4000 sesterces) Tiberius would have given to Claudius
(SUETONIUS, Cl. 5, 1).

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111

This should not surprise us. Patronage is by definition a relationship between


unequal partners, but the patron’s favours were no charity. Clients were expected to
reciprocate. The poorest were thereby almost inevitably excluded.464 If we are to
believe Martial and Juvenal, the gifts that clients were expected to offer their patrons
were by no means only symbolic (cf. supra p. 79-82). The lex Publicia de cereis and
the lex Cincia de donis et muneribus confirm that clients were pressed to make
valuable gifts to their patrons before the latter could be persuaded to grant them their
protection.
Nevertheless, we have a number of indications that persons from the lower classes
could have powerful patrons. Juvenal claims that some clients needed sportulae to
buy food, clothing and shoes.465 Martial mentions a client who had starved because
he got only one sportula a day.466 Obviously both poets are painting a caricature of
reality, but their verses do point towards the existence of a lower grade of clients
depending on their patrons for bare necessities. According to Cicero, it was a service
to the state to relieve the poor (locupletare tenuiores).467 These amici tenues formed
the escort (adsectatio) following a patron through the streets and to the forum, which,
according to Cicero, was the only way in which they could show gratitude.468
However, just how poor were these amici tenues? Cicero claims that they were not
prevented by occupations (occupationes) of their own from devoting their time to
their patrons. Can we thus infer that they were unemployed and depended for their
income exclusively on patronal assistance? Occupatio is a vague term. Seneca uses it
in connection with ‘liberal professions’ (artes liberales) such as medicine, teaching
or advocacy. The income derived from these is opposed to income derived from non-
liberal professions (merces meriti), for instance, that of grain merchant.469 Cicero
usually uses the term to indicate actions with a political or at least a public nature.470

464
cf. CLOUD (1989), p. 210.
465
JUVENAL 1, 117-1222. See contra CLOUD (1989), p. 210: ‘an historically false picture’.
466
MARTIAL I, 80.
467
CICERO, Off. II, 63.
468
CICERO, Mur. 70-71.
469
SENECA, Ben. VI, 15, 2.
470
For examples see LEWIS C. T. & SHORT C, A Latin dictionary, Oxford, 1966, p. 1252 (s.v.).

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112

The qualification ‘poor’ (pauper) was a very subjective and vague term that was
used very loosely by Roman nobles to indicate almost anyone not belonging to at
least the prima classis.471 As far as we can tell, most pauperes in Martial or Juvenal
were anything but poor by our standards. The pauper Gaurus mentioned in Martial
had property worth 300,000 sesterces.472 Horace and Martial call themselves pauper
although both belonged to the ordo equester.473 Salutationes and adsectationes
enhanced a patron’s honour, yet it was hardly honourable to be surrounded by
beggars. According to the satirists, patrons expected their clients to show deference
at the salutatio and adsectatio among other things by wearing a respectable toga. It is
true that these togas were a standard gift of patrons to their clients, but the
implication is clear; patrons wanted to be surrounded by respectable clients with a
decent background. 474 It was not just the number of clients that performed the
salutatio and adsectatio, but also their social position that determined the patron’s
status.475 Accordingly, Juvenal cynically – and not without exaggeration – described
how praetors and tribunes scrambled in vain at the salutatio to get their sportulae,
while a freedman richer than they rushed by to be received first.476
Tacitus distinguished that part of the people who were righteous and attached to
the houses of the great (integra et magnis domibus adnexa) from the sordid plebs
(plebs sordida) who indulged in games and plays. The distinction implies that those
who were attached to the nobility enjoyed a certain respectability that was
incompatible with the status of – what we would call – ‘paupers’.477
Plautus already claimed that patrons preferred to have wealthy villains as clients
rather than honest poor.478 Cicero voiced the same idea.

471
i.e. having property worth at least 100, 000 sesterces. See PRELL (1997), p. 44-58; FINLEY
(1973), p. 40. On Juvenal’s ‘poor’ clients see MARACHE (1980).
472
MARTIAL IV, 67.
473
MARTIAL V, 18; HORACE, Carm. II, 18, 10.
474
For togae as gifts see MARTIAL VIII, 28; IX, 49; X, 73.
475
Cf. ROULAND (1979), p. 267-268.
476
JUVENAL 1, 95-122.
477
TACITUS, Hist. I, 4. Note that sordida plebs does not imply unemployment. Neither does their
devotion to games and plays (circo ac theatris sueta) mean that they had no other occupations. (The
games were given on holidays.) It merely denounces their senseless devotion towards the emperor who
gave the games and plays. See ROULAND (1979), p. 538-543; contra VAN BERCHEM (1939), p. 55.
On the qualification sordidus (typical for dishonourable professions) see also VEYNE (1976), p. 696,
CICERO, Off. I, 150; Dig. L, 14, 3.
478
PLAUTUS, Men. 571-598.

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Although it was certainly morally preferable to have an honest poor man as a


client than a rich good-for-nothing, most people nevertheless preferred to gratify
those who had something to offer in return.479
Everything indicates, therefore, that the poorest in Roman society rarely – if ever –
enjoyed the benefits of patronage, because they rarely – if ever – had anything to
offer in return. The amici tenuiores Cicero refers to are not those who did not have
any income of their own, but those who had to work for their living and perhaps even
those who could just afford one or two slaves to do the work for them. Mena the
auctioneer (praeco) may be accounted one of them (cf. supra p. 103). They are the
true ‘middle class’ of ancient Rome; the people we find in numerous collegia in
different parts of the Empire, those rich enough to have left us their epitaphs
recording their names and sometimes their ages and professions, but whose
achievements were too insignificant to be remembered.480 The poorest in Roman
society continue to elude us. They lived from begging, occasional jobs, crime and
prostitution, occasionally leaving faint traces but no faces.481

c) Gifts as responses to crisis and gift-exchange as a risk buffering institution.

When we look at the long list of gifts surveyed earlier it becomes clear that a
considerable number of important gifts were forms of aid to those in need or
Donations compensating losses incurred. The ethics of the gift provide partners in a
reciprocity relationship with a safety net to fall back on in difficult times. As such the
Roman rules surrounding gifts fit perfectly in with one of the core functions of
reciprocity relations: the creation of areas of trust and solidarity.482 All social classes
enjoyed this aspect of amicitia and patronage, since it was inherent in these relations
themselves.

479
CICERO, 2, 69.
480
‘Middle class’ is of course a term loaded with anachronisms (what about the slaves, the
freedmen, the peregrines, the ‘orders’ and so forth ?). Nevertheless it has some use, in my view, to
denote all those families and individuals – whatever their legal or social status – who lived well above
poverty level (however defined in Roman terms), but who did not own enough property to live without
working. However, I wouldn’t argue with readers who don’t agree. Suffice to have explained my
motives.
481
Cf. PRELL (1997), p. 68-78; BOLKESTEIN (1939), p. 202-214, 337-341; HANDS (1968), p.
46-47.
482
Cf. GALLANT (1991), p. 143-169; GREGORY (1975), p. 83; EISENSTADT & RONIGER
(1984), p. 294-301; BOISSEVAIN (1966), p. 21-24.

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The most recognisable attestation of gift-exchange as a risk insurance mechanism


is formed by the Donations to patrons whose houses were destroyed by fire.
Payments of debts of amici offer another example. Conversely, risk-insurance was
undoubtedly one of the prime motives behind the ‘investment’ of substantial gifts
(and other resources and services) in amicitiae.
Although, as we said before, the poorest in Roman society did not generally have a
patron to protect them, patronal assistance could be crucial to prevent ‘middle class’
families from sinking into poverty. 483 The references by Cicero, Martial and Tacitus
reviewed above indicate that there existed a group of people – consisting both of
freedmen and freeborn – who counted on patronage for economic safety without
living in poverty or being dependent on a daily allowance. Just how large this group
was is impossible to make out. Although potentially it could easily have made up a
quarter of the population, it is likely to have been considerably smaller, given the
preference for upper class clients. These were people with their own modest income
(from which they could, for instance, buy small gifts on the occasion of the
Saturnalia). At times of crisis, however, (shortages of grain, death of a breadwinner,
fire and so forth) they could turn to their patroni for help.
Who had access to this privileged group? Since amicitia and patronage were
private and informal relations, access to them was theoretically free. Anyone could
place himself in the fides of another, but anyone could refuse to accept another into
his fides. Volteius Mena the auctioneer ended up in Marcius Philippus’s clientela, but
it was Philippus who chose him and not the other way around.
The group maintained itself partly because patronage was a hereditary
relationship. Indirectly, manumissio was probably a second source, assuming that the
children of freedmen (themselves freeborn) could – at least if they wished – appeal to
their father’s patron (or his descendants). A well-attested way to enter a clientela was
through recommendation by a friend of the patron. Protégés themselves could
become brokers, mediating access to their patrons. A client could make a personal
‘career’ in

483
Note however that, according to the Digest, patrons were not legally required to offer assistence
in order to prevent clients from falling into poverty. (I would like to thank professor Saller’s for this
remark). Patron-client relations are conspicuous by their absence in the Digest (see SALLER (1989), p.
50-51).

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such informal hierarchies.484 Hypothetically, collegia and other organisations that


were patronised as such may have provided an avenue to the personal clientelae, but
there is nothing – to my knowledge – to substantiate this hypothesis.
Again it appears that chances were very much against the poorest gaining access
to the economic and social support of patronage. Many were undoubtedly prevented
from sinking into poverty at various times of their lives thanks to an intervention by
their patroni, but few ever succeeded in breaking loose from poverty thanks to the
aid of a patron. Before a prospective client gained access to the salutatio meritoria of
a noble patron, he had to travel a long and winding road negotiating with clients,
protégés, friends of friends and finally friends and servants of the patron in question,
each demanding his reward.

484
Cf. DENIAUX (1993a), p. 6-7; SALLER (1982), p. 4-5, 74-75; BLOK (1969a), p. 373;
BOISSEVAIN (1969). See also infra chapter III,3 on the role of recommendations. On patronage as a
hereditary relationship cf. supra p. 53, 57.

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LOANS AND SURETIES

Modern scholars generally consider interest-free loans and sureties as an almost


self-evident ‘economic’ aspect of amicitia and patronage. It is true that these two
obligations were the cornerstones of what we may call the system of financial officia.
However, it would be wrong to reduce the latter to merely these two basic
obligations. I will try to show that the importance of amicitia to the financial system
transcended the level of interest-free loans, whose relative weight and range within
the system was – as we will see – rather modest. Relations based on fides – Nah- und
Treuverhältnisse as Gelzer put it – however, influenced the system in many more
ways.
Credit is crucial in any developed or developing economy. The intensity of the
circulation of goods and services can be raised to a level that would be unthinkable
without it. This is true of modern economies, but also – and perhaps even more – of
pre-industrial economies because these were confronted with a very inelastic money
supply, consisting virtually exclusively of state minted coins with a chronical lack of
small denominations supplemented by a limited supply of bullion, most of which was
tied up in decorative objects in temples and private houses. 485
Credit has an often-unappreciated potential to boost the velocity of circulation of
money. The trader whose sales were paid on the spot by the argentarii advancing the
money to the buyers could buy a new cargo immediately. Conversely, the retail
dealers buying the trader’s products could start selling their goods before they had to
pay the argentarius.486
Research on the role of Roman banks and credit so far has focused too much on
the presence or absence of productive or investment credit, neglecting the importance
of day to day consumer credit in retail trade

485
PEKARY (1980); CRAWFORD (970); CRAWFORD (1982); GOLDSMITH (1987), p. 36-37.
Contra see MROZEK (1985) who fails to make a distinction between debt-bonds and money.
486
Usually a short time after the money had been advanced. On the role of the argentarii in the
Roman economy see ANDREAU (1974); ANDREAU (1987), passim. Specifically on the importance of
their financing retail traders see ANDREAU (1999), p. 150.

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and in the lower strata of business life. Mayhew’s description of Late Medieval
and Early Modern England as a ‘credit based economy’ characterised by ‘high
velocity of circulation figures, but slow physical movement of coin’ is relevant in
this respect.487
However, ‘credit’ is not a simple phenomenon and neither are the institutions
extending and supporting it. The fundamental problem of any credit system is the
problem of trust.488 Normally, a creditor is only prepared to lend money because he
expects to be paid back after some time. This implies a situation of functional trust
that cannot be taken for granted. Complicating the problem of trust is the anonymity
characteristic of relations in a developed market economy. In order to develop
beyond their most basic level, financial markets need to solve the problem of
anonymity.
Modern economies solve the problems of trust and anonymity by depersonalising
the concept of debt by legally and ideologically separating it from both the
personality of and the relationship between creditor and debtor. The ideologically
isolated debt-relation between creditor and debtor is then placed in the hands of
functionally designed institutions responsible for sanctioning trespasses, on of which
is, naturally, failure by the debtor to repay the money owed. The necessary trust is
thereby externalised and becomes a trust in the system of contracts, police and
justice. The only relevant information for the creditor is the degree of solvency of the
debtor. This doesn’t mean that the legal system is at all times operative. It rather
serves ‘as a guide in cases of doubt and a norm of ultimate appeal’, but both creditor
and debtor know they can rely on the legal system if necessary.489

487
MAYHEW (1995), p. 249-250; VERBOVEN (1997a), p. 42 (see here passim for the problem of
money supply and velocity of circulation). See also SERVAIS (1994), p. 1393; FONTAINE (1994), p.
1386. See also MILLETT (1991), p. 219-220. For traces of credit based economies in twentieth century,
see e.g. CAMPBELL (1964), p. 247. For a system of credit-based wages see RATHBONE (1991), p.
318-319. For the problem of monetization and the lack of small change see CRAWFORD (1968);
CRAWFORD (1970); CRAWFORD (1971); CRAWFORD (1982); LO CASCIO (1981); PEKARY
(1980); LIGT (1990-1991); FREYBERG (1980), p. 74-77, 90-93; GARA (1979); HOWGEGO (1992);
MILLAR (1981); VERBOVEN (1997a).
488
Transaction cost economics defines the problem as the ‘honesty problem’. I here prefer the term
‘(functional) trust’ because it better reflects the Roman basic concept of fides underlying contracts in
general and credit relations in particular. On the ‘honesty problem’ see GREIF (1989a), p. 19, 114-124
(and passim).
489
GREIF (1989a), p. 121.

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At the other end of the conceptual spectrum we find personalised credit set in a
context of generalised or balanced reciprocity, where repayment of loans is
guaranteed by a reciprocity relationship between creditor and debtor.490 Refusal to
repay constitutes a violation of reciprocity obligations and of the basic trust and
solidarity underlying the relationship. Not only is the relationship as such thereby
ended; the reputation for moral integrity of the defrauding debtor is also severely
damaged, compromising his other (potential) social relations. On the other hand, the
creditor is expected to take into account the personal situation of his debtor. If the
latter is unable to repay through no fault of his own, the creditor has no moral right to
demand repayment. In this kind of credit relations, loans are easily transformed into
gifts and credibility is more important than solvency.
A third and more complex mechanism for the creation of situations of functional
trust relies on the social and economic position of debtors. Certain professions and
organisations can function only because of the trust they inspire, like the office of
notary or deposit banks and generally all professions depending on credit. Reputation
is an essential element here. If the debtor defrauds, he loses his reputation and
thereby his source of income. The creditor places his trust not in the debtor’s person
but in his social personality and in his self-interest in keeping his reputation intact.
The efficiency of this mechanism should not be underestimated and often
underlies formal credit systems depending on externalised trust. Braudel describes
the crucial role played by trust in the international community of traders in Early
Modern Europe. Those who did not abide by the implicit rules were shut out. Avner
Greif studies the role of reputation in the Jewish Maghribi traders community in
eleventh century Cairo and of the traders community in twelfth century Genoa.491
Both authors show how reputation was a condicio sine qua non for traders and
financiers to work.
Historically, the types of credit situations presented here are not mutually
exclusive. They serve as an analytical framework and not as a

490
See MILLETT (1991), p. 24-52 (and passim) for a good analysis of such loans. On generalised
and balanced reciprocity see SAHLINS (1972), p. 191-196. Note that repayment can – in some cases –
be substituted by alternative services or resources offered by the debtor.
491
BRAUDEL (1988-1990) II, p. 133-137; GREIF (1986a); GREIF (1989b); GREIF (1991). See
also e.g. ANDERSON (1972), p. 228.

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descriptive classification. The Roman credit system relied on contracts backed up


by legal procedures from at least the fifth century BCE. Any kind of loan could – in
principle at least – be enforced, even when there had been no formal contract made.
Most loans were made through the formal (verbal) contract of a stipulatio, of which
the terms and conditions were written down on wax tablets sealed by witnesses.
Sureties or pledges commonly guaranteed the contracts made.492 Bankers and
financial middlemen – as many faeneratores were – depended on their reputation for
reliability to operate.493
This does not imply, however, that the Roman financial system solved its
problems of trust and anonymity by depersonalising the concept of debt and placing
it in the hands of specialised institutions and professions. Neither does it imply that
reciprocal exchange systems were not operative. The Roman legal system left ample
room for gratia. Proceedings in court were normally preceded by long negotiations
and even the procedure in iure – before the praetor – was largely in the hands of the
litigating parties. At every stage of this preliminary phase gratia and fides could be
brought to bear on the case. Moreover, the Roman system of justice was very status-
minded, so that generally a person of lower social rank who was not assisted by a
more powerful patron stood little chance of winning his case against a socially
superior opponent.494 From a bare contractual viewpoint, the Roman legal system
was tortuous and in many cases unreliable.495
It seems legitimate, therefore, to ask what exactly the role of amicitia was – as a
vehicle of reciprocity and trust – in the Roman financial system. We shall proceed by
first looking at interest-free loans as beneficia and then gradually analyse the more
general use of amicitia and patronage in loans and surety arrangements.

492
See for examples ANDREAU (1974); CAMODECA (1992); CAMODECA (1999); BOVE
(1984).
493
Cf. e.g. already ISOCRATES, Trap. 2 on bankers:
See also VERBOVEN (1993a), p. 86-87.
494
See KELLY (1966), passim; GARNSEY (1970), passim; COTTON (1986); BÜRGE (1995).
495
Deficiency of the legal system in contract enforceability was quite common in pre-industrial
societies, see e.g. GREIF (1989), p. 120-124 (on medieval Cairo).

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1.7 Mutuum.
Interest-free loans are generally considered a typical officium amicitiae.496 Latin
originally had a special word for such loans, mutuum, to distinguish them from
interest-bearing loans (faenus, uersura).497 According to Michel, the term originally
meant an informal loan. After the lex Genucia (342) forbade the charging of interest
and the lex Poetelia-Papiria (328) made the archaic contract of nexum
unenforceable, mutuum was left as the only legal type of loan.
The legal core of mutuum consisted of an obligatio re originating from the simple
informal transfer of measurable goods with the evident intention of receiving an
equal amount of the same kind of goods in return after a certain period of time.498
This meant that mutua as such were necessarily free of interest. However, probably
already around the beginning of the third century BCE, it became customary to
accompany the obligatio re with one or more stipulationes (i.e. obligationes uerbis)
concerning terms and interest rates, thus transforming mutua into faenora.499
Significantly, by the Late Republic the term mutuum had become a general term
denoting both loans with and without interest.500
The difference between loans and gifts in the context of amicitia and patronage is
often small. Financial support is often referred to as a duty of friends, patrons and
clients without specification about the kind of support that is intended, i.e. loans or
gifts. Cicero felt obliged to pay the debt of his protégé L. Tullius Montanus: pertinet
ad nostrum officium

496
MICHEL (1962), p. 538-539, 559; SALLER (1982), p. 120-122; SHATZMAN (1975), p. 75-83,
132-142; GELZER (1912), p. 91-102; VERBOVEN (1993a), p. 83-97; MILLETT (1991), p. 127-159
(and passim).
497
Cf. MICHEL (1962), p. 104-107; SHATZMAN (1975), p. 82; FRÜCHTL (1912), p. 47-48;
BILLETER (1898), p. 140-141; NADJO (1989), p. 278-279; cf. e.g. Dig. III, 5, 37; NONIUS, p. 706
(ed. Lindsay); ibid. p. 439: Mutuum a fenore hoc distat quod mutuum sine usuris, fenus cum usuris
sumitur.
498
GAIUS III, 90. For a thorough analysis of mutuum see MICHEL (1962), p. 103-127. On
obligatio re and mutuum see also VAN OVEN (1948), p. 223-230; KASER (1955) I, p. 442-444;
GIRARD (1911), p. 560-519.
499
Note that strictly speaking faenus refers not to the loans, but to the interest charged on it. See
NADJO (1989), p. 294-295.
500
Cf. e.g. CICERO, Att. VIII, 6, 5; XV, 15, 3; Flacc. 46; 2 Verr. I, 10, 27; ASCONIUS, Corn. 50
(ed Clark); Ovid, Rem. Am. 561; GAIUS III, 156; Dig. XIV, 6, 1; XII, 1, 34, 1: praeses prouinciae
mutuam pecuniam faenebrem sumere non prohibetur. Nevertheless, the distinction was never wholly
lost, see e.g. Dig. XII, 1, 33.

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(Cicero, Att. XII,52,1).501 When Cicero wanted to get the financial support of
Antonius Hybrida his ex colleague for the consulship of 63 , which he thought he
was entitled to, he merely wrote: ‘If I were to expect from you the highest services
(summa officia), no one should be surprised.’502 While he was in exile Cicero, wrote
to his wife Terentia to be careful with her own patrimony: ‘if our friends remain
duteous, money will not be lacking.’503 Cornelius Nepos describes Atticus’s financial
support to Athens as an officium and a form of liberalitas.504
Financial support from friends and in-laws (adfines) was commonly considered to
be self-evident. Plautus and Terence present mutua as a typical form of aid expected
from amici.505 When Q. Axius pleaded with Cicero in 49 to give his son Gallius
(adopted by a M. Gallius) a loan, Cicero felt obliged to comply, contrary to his own
intentions: possemne aliter?506 Curtius Mithres’s resources were always at Cicero’s
disposal: huius cum opera et fide, tum domo et re uti tamquam mea (Cicero, Fam.
XIII,69,1). Cicero’s son excused himself towards Tiro – his father’s favourite
freedman – for not having helped him financially in buying an estate and promised to
back him up in the future, especially since he knew that the estate would be a
common good for the all the Cicerones.507 When Pliny contemplated buying an
estate, he took it for granted that his mother in law would lend him the necessary
cash.508 Martial mocks people who bent over backwards to avoid giving an interest-
free loan to a friend, thus confirming both the strength of the officium as such and the
gap between ideology and social reality.509
A loan between friends could be wholly informal, which implied that no
conditions (concerning interest, terms, sureties and so forth) could be

501
Cf. also CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1.
502
CICERO, Fam. V, 5, 2: Ego si abs te summa officia desiderem, mirum nemini uideri debeat.
503
CICERO, Fam. XIV, 1, 5: Si erunt in officio amici, pecunia non deerit.
504
NEPOS, Att. 2, 4.
505
PLAUTUS, Trin. 756-762; Pseud. 8s0-84; 294-295; 733-734; 1051-1056; Pers. 5-6; 35-42; 118-
119; 255-271; Curc. 67-69; Asin. 243-248; TERENCE, Phorm. 299-303; 512-514; 703. Adfinitas could
be quite large, see MOREAU (1990).
506
CICERO, Att. X, 15, 4.
507
CICERO, Fam. XIV, 21, 7: noli dubitare . quin te subleuaturus sim … praesertim cum sciam
communem nobis emptum esse istum fundum.
508
PLINY, Epist. III, 19, 8: nec molestum erit mutuari; accipiam a socru, cuius arca non secus ac
mea utor.
509
MARTIAL II, 30; cf. also MARTIAL II, 43; 44; III, 41; IV, 15; 67; 76; VI, 5; 20.

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stipulated. The difference between such informal mutua and gifts was small. In the
case of emergencies, we find that a number of transactions started as gifts, but ended
as loans or vice versa. Money (or gold) was given unconditionally, but with the tacit
agreement that the recipient would repay the ‘gift’ if his situation returned to normal.
We have already seen in our previous chapter how Q. Cicero, Atticus, Rabirius
Postumus, Ateius Capito and other amici gave money to Cicero when he went into
exile in 58 and how he counted on them to help his wife and children financially.
There can be no doubt about it that this money was given unconditionally, but it is
more than likely that Cicero later repaid at least part of it. As early as 57 – before his
own financial resources had recovered from the blow – Cicero tried to repay his
brother by borrowing again from his friends (subsidiis amicorum).510 The silver bowl
which Antonius Creticus gave to a friend in need of money is probably another
example of a gift-loan.511
After his return from exile, Cicero needed money to restore his heavily damaged
properties. His house on the Palatine and villas in Tusculum and Formia had been
burned. The senate had granted him financial compensation, but this covered only
part of the necessary expenses.512 It was a matter of fact, in Cicero’s eyes, that
Atticus would support him financially, but he did worry about the support from other
friends who had already spent considerable sums on the campaign to recall him from
exile.513 Nevertheless, by early 56 – hardly 5 months after his return in Rome –
Cicero had already overcome most of his financial difficulties. Clearly, the amici had
lived up to their obligations.514
Atticus supported Cicero again in 49-47, when the latter had joined Pompey in the
fight against Caesar. At the same time, Cicero borrowed from others, among whom
Cn. Sallustius with whom he had long standing friendship.515 Atticus’s financial
support of Fulvia, Marc Antony’s

510
CICERO, Att. IV, 3, 6.
511
PLUTARCH, Ant. 1.
512
2 million sesterces for the house on the Palatine, 500.000 for the Tusculanum, 250.000 for the
Formianum (CICERO, Att. IV, 2, 5). See also SHATZMAN (1975), p. 404.
513
CICERO, Att. IV, 1, 3: (tuas facultates) nostras esse iudico. On the other amici see Att. IV, 2, 7.
514
Cf. CICERO, Q. fr.2, 5(4, 3-4), 1. See also Att. IV, 1, 3; 2, 7; 3, 6.
515
CICERO, Att. XI, 13, 4. On Cn. Sallustius’s amicitia with Cicero see CICERO, Fam. XIV, 4, 6:
officio uincit omnis. After Pompey’s defeat Sallustius was himself desperately in need of money and
Cicero asked Atticus to hand over the 30, 000 sesterces he had borrowed to Sallustius’s brother Publius.

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wife, must have been less to Cicero’s liking. She had bought an estate on credit
and was unable to pay up. Atticus advanced her the money without charging interest
or stipulating any other conditions (sine faenore sineque ulla stipulatione).516
The circumstances inducing Clodia to lend money to her lover Caelius Rufus were
less dramatic, but he too was given the money unconditionally. According to Cicero,
this testified to their exceptional intimacy (egregia familiaritas).517 Cato the Younger
would have used an inheritance a cousin left him to give interest-free loans to
friends.518
The case of P. Magius Chilo, a cliens and uetus amicus of M. Marcellus (cos. 51),
is remarkable. As Marcellus and Cicero, Magius had fought in Pompey’s army and
had lost everything after the defeat at Pharsalus. Cicero had stood surety for Magius,
but all to no avail: soluendo enim non erat (Cicero, Att. XIII,10,3). Magius turned to
Marcellus for help, undoubtedly in the form of a loan or a gift, but Marcellus –
having lost at least part of his patrimony in the civil war himself – refused. Magius
was furious and killed first Marcellus and then himself. Apparently, Magius thought
he was entitled to Marcellus’s help, notwithstanding the latter’s own financial
difficulties.519
The close connection between loans and gifts in the context of patronage and
amicitia is further illustrated by Horace’s story of the auctioneer Volteius Mena, who
ended up in the clientela of Marcius Philippus (cens. 86 BCE). Philippus gave his
client 7000 sesterces and an interest-free loan of another 7000 sesterces to buy a
modest farmstead in the neighbourhood of Rome.520
The link between gifts and interest-free loans could be used to cover up illegal
gifts. This was the case with the ‘loan’ of 2 million sesterces that P. Sulla gave to
Cicero in exchange for his defence in court. Aulus Gellius refers to the money as a
‘tacit loan’ (mutua tacita), which Cicero

516
NEPOS, Att. 9, 4-5. Nepos claimed it proved that Atticus was a friend of men and not of their
fortune (‘honni soit qui mal y pense’).
517
CICERO, Cael. 31: Auro opus fuit; sumpsit a Clodia, sumpsit sine teste, habuit quamdiu uoluit.
Maximum uideo signum cuiusdam egregiae familiaritatis. Cicero claimed Caelius needed the money to
pay the rent of his appartment (10, 000 sesterces a year, Cael. 17).
518
PLUTARCH, Cat. Min. 6, 4.
519
See CICERO, Fam. IV, 12, 2; Att. XIII, 10, 3; LIVY Epit. 115; VALERIUS MAXIMUS IX, 11,
4.
520
HORACE, Epist. I, 7, 80-81: dum septem donat sestertia, mutua septem / promittit, persuadet uti
mercetur agellum.

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needed to buy his new house on the Palatine. The term is intriguing: are we to
understand tacita mutua in the sense of a discrete loan or in the sense of a loan not
covered by any oral obligation (obligatio uerbis), i.e. by a stipulatio?521 The rest of
the money needed to buy the Palatine house came from Antonius Hybrida, Cicero’s
colleague in the consulship of 63. Although this transaction too was undoubtedly a
gift, we may guess that outwardly it was presented – to those few who knew about it
– as a mutuum.522 This was possible only because it was not unusual to rely on
‘friends’ to finance purchases meant to express and enhance one’s social status.
About the same time as Cicero bought his Palatine house, the consul M. Valerius
Messalla Niger borrowed from his amici to buy the house of P. Autronius Paetus on
the Palatine Hill.523
Political loans were often without interest, because the pecuniary benefits of
interest would not compensate for the political benefits of an interest-free loan.
Political support served as a kind of pseudo-interest.524 Crassus was famous for the
interest-free loans he gave to his amici.525 Caesar used the same strategy to increase
his influence in the senate, giving both interest-free loans and loans at low interest
rates.526 Curio and Aemilius Paulus are said to have received 10 and 36 million
sesterces respectively.527 Whether the money was intended as a loan or as a gift is not
clear. Cicero owed 800,000 sesterces to Caesar in 51 BCE on which he had to pay a
low interest rate.528 Caesar’s debt to Pompey

521
GELLIUS XII, 12; CICERO, Att. I, 13, 3.
522
Cf. CICERO, Att. I, 12, 1; 13, 6; 14, 7; Fam. V, 5, 2.
523
CICERO, Att. I, 13, 3: Messalla consul Autronianam domum emit HS centies trecies quater.
‘Quid id ad me?’ inquis. Tantum, quod ea emptione et nos bene emisse iudicati sumus et homines
intellegere coeperunt licere amicorum facultatibus in emendo ad dignitatem aliquam peruenire.
524
Cf. GELZER (1912), p. 91-102; FREDERIKSEN (1966); SHATZMAN (1975), p. 116-142.
525
Cf. SALLUST, Cat. 48, 5; 48, 8; PLUTARCH, Crass. 3, 1; 7, 2. Note that Plutarch comments
that Crassus was very strict in demanding punctual repayment, which implies stipulationes containing
time limits.
526
SUETONIUS, Iul. 27, 1: omnibus uero circa eum atque etiam parte magna senatus gratuito aut
leui faenore obstrictis. See also CICERO, Phil. II, 78; BENOEHR (1986b), p. 35-39.
527
For Curio see SHATZMAN (1975), p. 396-397. See VALERIUS MAXIMUS IX, 1, 6;
SUETONIUS, Iul. 29, 1; PLUTARCH, Pomp. 58, 1; Ant. 5, 1; VELLEIUS PATERCULUS II, 48, 3-4;
LUCANUS I, 269; IV, 819-820; APPIAN, B.C. II, 26; DIO XL, 60, 2; CICERO, Att. VI, 3, 4; for
Aemilius Paullus see SHATZMAN (1975), p. 289-290. See PLUTARCH, Caes. 29, 3; Pomp. 58, 1;
SUETONIUS, Iul. 29, 1; APPIAN, B.C. II, 26; DIO XL, 63, 2.
528
CICERO, Att.. IV, 19, 2; V, 1, 2; 4, 3; 5, 2; 6, 2; 9, 2; 10, 4; 13, 3; VII, 3, 11; 8, 5; Fam. I, 9, 18-
21. See also BENOEHR (1986b), p. 30-35; FRÜCHTL (1912), p. 72; ROYER (1967), p. 238;
SHATZMAN (1975), p. 126-127; BARLOW (1978), p. 159; VERBOVEN (1993a), p. 86.

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in 50 is remarkable when seen in the light of the enormous sums of money Caesar
gave and lent to his allies, but makes sense against the background of friendly loans
common in the Late Republic between political allies. We can assume that the debt
dated from the years when Caesar and Pompey were allies.529
Mutua were not only available to individuals. Atticus intervened to help Athens
pay her debts in the eighties (or seventies) BCE, by borrowing the money needed in
his own name and then lending it to the city without charging interest (neque usuram
umquam ab iis acceperit). Like Crassus, however, Atticus insisted that the money
had to be paid back punctually.530 In 45, he paid the fine which Caesar had imposed
on the city of Buthrotum, but this was almost certainly meant as a gift.531
The common aspect of these loans and pseudo-loans is that they were presented as
acts of kindness and obligation (beneficia / officia) that both arose from and had to
give rise to gratia. Gratia served as a substitute for interest, because it had to be
expressed in beneficia by the debtor towards his creditor.532 Although these beneficia
were never determined in advance, they could far outweigh the pecuniary benefits of
commercial interest rates.
Of course, reality was not always so straightforward. Martial’s sarcasm concerning
mutua cannot be taken literally, but it does indicate how individuals could
manipulate the officia involved to get money they never intended to repay.533 Plautus
was even more cynical: Whoever gives a mutuum will either lose his money or his
friend.534 The representation of both authors reflects a reality in which amicitia and
mutua were ideologically inseparable, but were not free from abuse and
manipulation.

529
Cf. CICERO, Att. VI, 1, 25.
530
NEPOS, Att. 2, 4. Nepos describes Atticus’s intervention clearly as an act of euergetism. Contra
see PERLWITZ (1992), p. 42, who believes Atticus charged a modest interest rate.
531
Cf. CICERO, Att. XVI, 15a, 2-3.
532
See BÜRGE (1980), p. 132-133.
533
Cf. e.g. MARTIAL VI, 5.
534
PLAUTUS, Trin. 1051-1056: si quoi mutuom quid dederis, fit pro proprio perditum: / quom
repetas, inimicum amicum beneficio inuenias tuo. / si mage exigere occupias, duarum rerum exoritur
optio: / uel illud quod credideris perdas, uel illum amicum amiseris. / (Ch.) Meus est hic quidem
Stasimus seruos. (S.) Nam ego talentum mutuom / quoi dederam, talento inimicum mi emi, amicum
uendidi.

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1.8 Faenus.
Mutuum and faenus were generally considered each other’s opposites. To extend
mutua was an obligation (officium) inherent in Roman friendship. As such mutua
constituted beneficia, gave rise to gratia and bound the debtor to his creditor even
after the actual debt had been repaid. Faenus, on the other hand, was the ideological
opposite of a beneficium because the creditor was not motivated by goodwill
(benignitas, beneuolentia) towards the debtor but acted solely with an eye to his own
advantage. Accordingly, once capital and interest had been repaid, the debtor was
free from all obligations towards his creditor.535 The dichotomy has been adopted by
most scholars today, who generally contrast interest-free or cheap loans with
commercial lending at interest.536 Nevertheless, it would be a mistake to think that
amicitia (or patronage) between creditor and debtor was incompatible with charging
substantial interest.

a) A preference for friends.

When it looked as if Cicero would not get the money promised by Antonius
Hybrida, he contemplated turning to faeneratores. The first person Cicero thought of
was Q. Caecilius, Atticus’s maternal uncle who was a notorious usurer, but Caecilius
refused to lend at less than 12% interest even to his relatives, even though –
according to Cicero – money could easily be found at 6%. Three other candidates
offered better terms: Q. Axius, Q. Considius and Q. Selicius.537 At least two of these
three

535
Cf. e.g. CICERO, Fin. II, 115; Off. II, 69; Planc. 68; SENECA, Ben. I, 1, 9; II, 2, 3; 18, 5; III, 15,
4; VI, 13, 3.
536
Cf. e.g. NONIUS, p. 439 (ed. Lindsay) (cited supra p. 120); MILLETT (1991), p. 99, 138, 147,
160; SHATZMAN (1975), p. 82-83; BÜRGE (1980), p. 124, 127. On faeneratio see i.a. BARLOW
(1978), passim; MASSELLI (1986), passim; VERBOVEN (1993a), p. 80-83. Modern research on
faeneratio has been hindered by much confusion between faeneratio (‘lending at interest’) and res
argentaria (‘banking’), cf. ANDREAU (1978); ANDREAU (1983); ANDREAU (1985); ANDREAU
(1987), p. 3-57; PETRUCCI (1991). For the situation in the Greek world see BOGAERT (1968), p. 290-
291; COHEN (1992), p. 44-46. On the origin of interest see MILLETT (1991), p. 91-108. On interest
rates in the ancient world in general see BILLETER (1898); ANDREAU (1999), p. 90-99.
537
CICERO, Att. I, 12, 1; Fam. V, 6, 2 (money available at 6 %). ANDREAU (1999), p. 95 suggests
that interest rates may have risen between the writing of Fam. V, 5 and the writing of Att. I, 12. However
SHACKLETON BAILEY (1977a) I, p. 282-283 makes a good case arguing that the two letters were
written with only a few days interval (ca. 23 December and 1 January). So the interest rates would have
doubled in barely one week’s time. Surely, Cicero would not have failed to have mentioned such an
extraordinary event to Atticus– as e.g. he did in 54 when political manoeuvring caused interest rates to
double from 4 to 8 percent (Att. IV, 15, 7; Q. fr. II, 15(14), 4). On Q. Caecilius see NICOLET (1966-
1974), p. 809-810; MASELLI (1986), p. 52; ANDREAU (1978), p. 55. Considius was an important
faenerator (and senatorial backbencher), who had 15 million sesterces in faenora at the time of the
Catilinarian crisis (cf. infra p. 166). On the role of the three financiers see ANDREAU (1978), p. 55-56.

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were directly or indirectly amici of Cicero. A life-long familiaritas existed


between Cicero and Q. Axius538, while Q. Selicius was a protégé of Lentulus
Spinther, who was himself an amicus of Cicero.539 Although usura may have been
considered reprehensible, it was nevertheless a common and acceptable routine to
charge interest even to friends and relatives. When Cicero wanted to buy gardens
(horti) from P. Silius – with whom he shared a common friend, Aelius Lamia, and
with whom he was on friendly terms himself – he took it for granted that if Silius
agreed to sell the gardens on credit, interest would have to be paid.540
Whenever a member of the aristocracy had to turn to faeneratores, he preferred to
turn to financiers with whom he (or one of his amici of relatives) had an amicitia.
Cicero’s half-ironic remark about Q. Caecilius (‘he wouldn’t lend to his own
relatives at less than 1% a month’), indicates that close personal relations could be
helpful in obtaining better terms. Millett described the mechanism as the ‘social
distance theory’: the more intimate the personal relation between creditor and debtor,
the lower the interest.541
The Roman credit system resembled – in this aspect at least – the credit systems of
several countries and regions in Early Modern Europe. Peter Spufford shows similar
mechanisms at work in 17th century rural England, Ulrich Pfister does the same for
the Swiss countryside from the

538
There were two books of letters between Axius and Cicero – now lost – circulating in the Early
Empire. On Axius and his relation with Cicero see SHATZMAN (1975), p. 308; NICOLET (1966-
1974), p. 800-801; WISEMAN (1971), p. 216, n. 61; CICERO, Att. III, 15, 3; IV, 15, 5; V, 21, 2; X, 8,
2; 11, 2; 13, 2; 15, 4; XII, 1, 2; GELLIUS VI, 3, 10; SUETONIUS, Iul. 9; NONIUS, p. 509 (Ed.
Lindsay).
539
On Selicius and his relations with Lentulus see CICERO, Fam. I, 5a, 4. On Cicero’s amicitia with
Lentulus see Att. III, 24, 2; Q.fr. I, 2, 16; Fam. I, 9, 24; 3, 1; DENIAUX (1993a), p. 99.
540
Cf. CICERO, Att. XII, 22, 3; 23, 1, 3; 25, 1. On the purchase of the horti (the term is often used to
denote suburban villas, but not here) see CICERO, Att. XII, 22, 3; 23, 1, 3; 25, 1; 27, 1; 29, 1-2; 33, 1;
30, 1; 31, 1; 34, 3; 41, 3; 44, 2; 52, 2; XIII, 5, 1; 7. On Cicero’s amicitia with Silius see Fam. VII, 21; 13,
62.1-2. On their common friendship with Lamia see Fam. XIII, 62, 1. On the charging of interest to
relatives see also ANDREAU (1990); ANDREAU (1999), p. 143.
541
MILLETT (1991), p. 91-108. Although Millett goes too far (in my view) in painting a black and
white picture (either no interest at all or a commercial interest rate). See also ANDREAU (1990), p. 523-
524.

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128

16th to the 18th century. Banks had only marginal importance and interest-bearing
loans were usually given to family, friends and acquaintances whose reliability (or
unreliability) was best known. Laurence Fontaine presents the case of a businessman
in 17th century Dauphiné who routinely lent money to members of his family,
charging interest of 5 percent.542

b) Amici as debtor–intermediaries.

A totally different kind of faeneratio was that in which the debtor borrowed
money at interest with the sole intention of reinvesting it in risky but highly lucrative
ventures. It is interesting to see that in these cases it was not the initial creditor but
the intermediary who was considered a faenerator.543 The latter lent the money
openly at interest, while the actual financiers stayed in the background.544
The best known example is that of Rabirius Postumus. The money he lent to
Ptolemy XII Auletes would have come largely from his amici, among whom were
prominent senators like Pompey or Caesar.545 The case resembles that of P. Sittius
who was forced to sell his estates in 63 to repay the debts he had incurred in order to
do business in Spain, Mauretania and Numidia. At least part of Sittius’s business
consisted of lending money at high interest rates to provincial communities and
kings.546
Looking at the cases of Rabirius Postumus and P. Sittius, we have the impression
that the amicitiae in question did not transcend the level of ‘social niceties’,
becoming wholly irrelevant when there was a conflict of

542
SPUFFORD (1994); PFISTER (1994); cf. also ANDERSON (1972) for the situation in England;
FONTAINE (1994), p. 1378, see also p. 1386: ‘Suivre les liens de crédit … met l’accent sur la stabilité
de la relation interpersonnelle qui lie créanciers et débiteurs et sur les avantages réciproques de ces liens
négociés et contrôlés.’ See also DELILLE (1994), p. 1435, 1440 for a comparable situation in Early
Modern Southern Italy.
543
See e.g. PS.-ACRO, in Hor. Serm. II, 3, 18 (on the faeneratores at the Ianus medius).
544
Cf. VERBOVEN (1993a), p. 80-83.
545
CICERO, Rab. Post.5: nec suam solum pecuniam credidit sed etiam amicorum; Rab. Post. 39:
credebat inductus usuris. For the balance due in 47 see PLUTARCH, Caes. 48, 4. On Rabirius
Postumus’s and Ptolemy XII Auletes cf. infra.
546
Cf. CICERO, Sull. 58: cuius aes alienum uidemus, iudices, non libidine, sed negoti gerendi
studio esse contractum, qui ita Romae debuit ut in prouinciis et in regnis ei maximae pecuniae
deberentur. See also ibid. 56-59. He may also have been involved in the grain trade from Africa to
Rome. On Sittius and his business see MASELLI (1986), p. 75-76; NICOLET (1966-1974), p. 308, 361;
HEURGON (1950).

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interest.547 The necessary ‘functional trust’ derived not from the professed
amicitiae, but from the calculated self-interest of Rabirius Postumus and Sittius, who
needed an unblemished reputation in order to operate as financial intermediaries.
Clearly, Cicero’s oration Pro Rabirio Postumo depicts Postumus’s relation with
his financiers as one of amicitia in order to paint his client in a more favourable light.
The very fact that, according to Cicero, Postumus was all but prosecuted by his
‘friends’ upon his return from Egypt throws doubt on their friendship with Postumus.
Nevertheless, the fact that Cicero presents the case in such terms before a jury of
senators and knights indicates that amicitia did serve as a functional framework
within which to organise commercial financial transactions.
Several other examples confirm that financial arrangements such as that set up by
Postumus were not uncommon. Cicero himself used the services of Cluvius from
Puteoli, of Egnatius Rufus and perhaps of his former scriba Tullius – all intimates of
his – to invest money.548 Cluvius was also an intermediary of Pompey for part of the
latter’s faenora in the East,549 while Atticus used C. Vestorius as an intermediary.550
Clearly, these amicitiae were mostly utilitarian in character. However, we should
beware of a black and white view. The fact that Cluvius from Puteoli left a
considerable share of his fortune to Cicero shows that the benefits expected from
business friends were not necessarily limited to a set of rules regarding correct
behaviour in business relations. Lucrative financial mediation could be part of a total
package deal of mutual benefits in which the margin of profit of the mediator (i.e. the
difference between the interest he had to pay and the interest paid to him) and the
initial creditor were only one – admittedly important – aspect. Thus one of the
advantages that Cluvius derived from his amicitia with Cicero

547
Cf. BRUNT (1988b), p. 361-381 .
548
On Cluvius and Vestorius see CICERO, Att. VI, 2, 3; ANDREAU (1983); D’ARMS (1981), p.
49-55; RAUH (1986), p. 18-19, 22-238; DENIAUX (1993a), p. 480-482; NICOLET (1966-1974), p.
844-845; CARCOPINO (1947) I, p. 177-179. On Egnatius Rufus see CICERO, Att. XII, 18, 3; 19, 2;
NICOLET (1966-1974), p. 866-868; DENIAUX (1993a), p. 494-496; RAUH (1986), p. 17-18;
MASELLI (1986), p. 54-55; ANDREAU (1978), p. 57. On Tullius scriba (wrongly considered Cicero’s
freedman) see CICERO, Att. XIII, 22, 4; XV, 26, 4; 29, 1; SHACKLETON BAILEY (1965-1970) III, p.
194-195; SHACKLETON BAILEY (1977a), p. 466-467; TREGGIARI (1969), p. 250; FABRE (1981),
p. 352.
549
CICERO, Fam. XIII, 32.
550
CICERO, Att. VI, 2, 3.

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130

consisted of the letters of recommendation that Cicero wrote for him to the
governor of Asia.551
Therefore, although it is true that even amici did not accept default in repayment
of debts, this does not imply that the amicitia involved was not an effective gateway
through which various substantial resources were exchanged.

c) Illegitimate faeneratio.

Nevertheless, in some cases to lend money at interest clearly was a violation of the
obligations of amicitia or patronage. The most famous example of this kind is the
loan Brutus gave to Salamis, a city in his clientela on the Island Cyprus. When
envoys of the city came to Rome in 57, they needed to borrow a considerable sum of
money. Brutus advanced a few of his intimates to play the role of financiers offering
a loan at the exorbitant rate of interest of 48 percent. The money really came from
Brutus himself. The loan was a violation of the lex Gabinia de uersuris, which
forbade loans to foreign embassies, but Brutus managed to arrange a senatorial
decision granting an exception to the law. When the city proved unable to repay the
loan, Brutus persuaded his father-in-law, App. Claudius, who was governor of
Cilicia-Cyprus in 52-51 to give a praefectura and a cavalry detachment to one his
intermediaries, M. Scaptius. Scaptius used the soldiers to shut up the senate in their
senate-building until five of them starved to death. Brutus asked Claudius’s
successor, Cicero, to renew Scaptius’s command, but Cicero refused and recalled the
soldiers. Cicero had set a maximum interest rate of 12 percent for his province and he
refused to acknowledge the 48% stipulated in the contract with Salamis, but he did
persuade the city to pay the outstanding debt at the legal maximum of 12 percent.
Brutus refused to accept the offer and Cicero agreed to freeze the matter and leave it
to his successor, who most people thought would be Aemilius Paullus, Brutus’s
brother in law. Of course, the Salaminians disagreed and demanded – in vain – that
they should be allowed to repay the debt at 12 percent.552

551
CICERO, Fam. XIII, 56.
552
Cf. CICERO, Att. V, 21, 10-13; VI, 1, 5-8; 2, 7-9; 3, 5; See HATZFELD (1919), p. 212; FRANK
(1933), p. 389; MIGEOTTE (1984), p. 254-259, 387-388; BRAUND (1989), p. 143-145. On the lex
Gabinia see BONNEFOND (1984); BONNEFOND (2000), p. 333-347; BROUGHTON (1937);
NICOLET (1971b), p. 1221; BARLOW (1978), p. 185. On legislation against loans to foreign
embassies, see also VERBOVEN (1993b). On Aemilius Paulus as Cicero’s expected successor see
SHACKLETON BAILEY (1965-1970) III, p. 242.

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The interest that Brutus charged to his own clientes was exorbitant, but not
unprecedented for loans to foreign communities. The city of Gytheion on the
Peloponnesus repeatedly borrowed money from two resident Romans, Num. and M.
Cloatius. The first loan and part of the second loan were remitted, but when Gytheion
needed to borrow a third time, the Cloatii were less eager to help. They agreed to
lend the money, but charged a compound interest of 48 percent. Hardly eight months
later, when the city again proved unable to pay up, they agreed to remit all arrears
and lowered the rate to 24 percent simple interest. The city thanked them in an
inscription honouring them as protectors and benefactors
553
( ).
Tenos borrowed money from the Aufidii Bassi on several occasions over the
course of the first half of the first century BCE. The elder Aufidius gave the first
loans at 16 2/3 and 12 percent compound interest. His son, the younger Aufidius,
renewed all outstanding debts at 12 percent simple interest. When the city still
proved unable to repay its debts, Aufidius lowered the interest rate further to 8
percent and when even this proved no solution, he granted a suspension of
repayments for eleven years at zero percent interest. Tenos honoured him with an
inscription for his extraordinary goodwill ( ) towards the city.554
Hatzfeld concluded that the exorbitant interest rates of 24 and 48 percent attested
for the Eastern provinces in the Late Republic were a mere strategy of Roman
financiers to realise at least a modest profit on their loans.555 In my view, Hatzfeld is
giving too much credit to the grandees of Roman usury. Undoubtedly high interest
rates partly reflected high risks, but the examples of Rabirius Postumus and P. Sittius
prove that the expected profit was much higher than what could be realised in Rome.
What the three cases of Gytheion, Tenos and Salamis have in common, however,
is that they had privileged relations with their financiers. In the case of Salamis, this
induced Brutus to stay behind the scenes. The cases of Gytheion and Tenos show us
why. As a patron of the city Brutus would

553
Syll. 748. See BOGAERT (1968), p. 100-101; MIGEOTTE (1984), p. 91-92; MASELLI (1986),
p. 73-74.
554
IG XII, 860; BOGAERT (1968), p. 193-196; MIGEOTTE (1984), p. 221-226; MASELLI
(1986), p. 72-73.
555
HATZFELD (1919), p. 212: ‘Les banquiers italiens savaient qu’en Orient il faut demander
beaucoup pour obtenir peu; les conditions qu’ils imposaient aux villes grecques ne doivent pas nous faire
illusions sur leurs exigences véritables, et nous prouvent simplement qu’ils avaient su prendre dans ce
pays des habitudes de “bazar”’, followed by MIGEOTTE (1984), p. 387-388.

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132

have been under considerable pressure to lower the initially high interest rate of 48
percent, which he was clearly not prepared to do.

1.9 Permutatio.
There is a lot of disagreement about precisely what a permutatio was. Literally the
term means ‘an exchange (of debts)’. We know it referred to the transfer of money
from one place to another without the transfer of the actual coins involved. We also
know that it basically consisted in repaying a debt in another place than the one
where it was contracted, but beyond this opinions diverge.556 I will try to show in this
section that the term permutatio did not refer to a single technique but comprised
several legally different procedures and that the organisation of permutationes
required relations of fides.
The term permutatio is sometimes translated as ‘bill of exchange’, sometimes as
‘letter of credit’ and sometimes as ‘giro transfer’. None of these three is very
accurate. Giro is definitely wrong, since there was not necessarily a transfer of
money from one account to another involved. ‘Bill of exchange’ is too reminiscent of
modern bills of exchange that may be endorsed to outsiders, whereas Roman IOU’s
were always personalised. ‘Letter of credit’ is undoubtedly the best translation, but
this term mostly refers to situations where a banker/creditor uses an agent stationed
in another place to effect payments, thus providing a money transfer service to his
client/debtor. In Roman permutationes, on the other hand, agency was totally
irrelevant and the persons involved could be independent from each other.557
It seems best, therefore, to consider permutatio as a procedure sui generis to
transfer funds without carrying cash. However, what did it consist of ? It is important
to realise that permutatio (in its financial sense) was not a legal concept. The term
simply means ‘an exchange’. Indeed, we may ask ourselves if the term ever really
acquired a general technical sense of a transfer-mechanism of funds, since Cicero
seems to be the only author who uses the term in such a sense.

556
Cf. CICERO, Att. XII, 24, 1 for the opposition between permutari and carrying cash. See
BARLOW (1978), p. 168-171; FRÜCHTL (1912), p. 21-28; PETRUCCI (1991), p. 116-120;
ANDREAU (1978), p. 51-55; ANDREAU (1987), p. 509; MASELLI (1986), p. 118-119; JONKERS
(1941); KIESSLING (1924), col. 700.
557
For giro see KIESSLING (1924), col. 700; PERLWITZ (1992), p. 63. For ‘bill of exchange’ see
BARLOW (1978), p. 170. For ‘letter of credit’ see RAUH (1986), p. 8, n. 22.

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133

According to Petrucci, permutatio was technically based on a depositum


irregulare or ‘open deposit’. In such a case the deposit-holder was not required to
render the same objects as the ones he received – as in the case of a regular
depositum – but to render an equal amount of the same kind of objects (in this case
coins). In the meantime, he was free to use the deposited objects as he pleased, but
the owner could at any time and without delay demand back all or part of his deposit.
There is a lot of disagreement about whether the possibility of deposita irregularia
existed in Cicero’s time. The classical jurists considered the technique legally as a
kind of mutuum. Petrucci, however, concludes after a detailed analysis of two
passages in the Digest from the jurist Alfenus Varus (who was consul suffect in 39
BCE) that the technique did exist in the Late Republic and was fundamental to the
operations of argentarii.
However, from a technical juridical point of view the distinction between a
depositum irregulare and a mutuum was in any case slight. It seems to have been
meaningful only to distinguish between money deposited with a banker or a
procurator for administration purposes, i.e. for the benefit of its original owner on
the one hand, and money lent to a debtor for his personal purposes on the other.558
We have at least one example of a permutatio in which there can have been no
depositum irregulare involved. When Cicero left for Cilicia in 51 he had arranged a
permutatio with Atticus, who had business interests in Ephesus. The case is
interesting because Atticus advanced the money to Cicero. Once in Asia, Cicero
worried that he would have to borrow to pay Atticus back. In other words, Cicero
certainly did not make a depositum irregulare with Atticus. Moreover deposita
irregularia only concerned two individuals, whereas most permutationes involved
three parties. So the technique of the depositum irregulare is in itself insufficient to
explain all permutationes.559
Maselli believes permutatio consisted of an exchange of Roman coins against non-
Roman.560 Although this may indeed have been the case originally561 (hence the
origin of the term), several letters from Cicero to

558
PETRUCCI (1991), p. 119. A depositum regulare required that the same objects were rendered,
something which was naturally impossible in the case of a permutatio. On the depositum see BÜRGE
(1987), p. 536-555; ANDREAU (1987), p. 528-544.
559
CICERO, Att. V, 13, 2; 15, 2; VII, 5, 3; 7, 2.
560
Cf. MASELLI (1986), p. 118-119.
561
See e.g. ANDREAU (1999), p. 132.

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134

Atticus manifestly contradict the validity of this interpretation for the Late
Republic. In Att. 12,24,1 permutari is presented as an alternative for ‘carrying with
oneself’ (ipsi ferre). In Att. 15,15,4 permutari is used with the accusative Athenas in
the sense of ‘to Athens’. In Att. 11,24,3 a permutatio is arranged within Italy and is
described as ‘to send sesterces’ (mittere HS (decem milia)).
Jonkers and Barlow identify a permutatio legally as a delegatio debitoris
(sometime also called attributio562), in which a debtor repaid his creditor by
transferring a claim on a third person to his creditor. Delegatio debitoris was a
legally defined concept based on an obligatio litteris – i.e. an obligation not arising
from a formal contract (obligatio uerbis) or from a factual situation (obligatio re).
The claim acquired by the creditor was called a nomen transcripticium a persona in
personam. It constituted a new debt (nouatio) that extinguished the two previously
existing debts between creditor A and debtor-creditor B on the one hand and debtor-
creditor B and debtor C on the other, making C a debtor of A.563
Alternatively, a delegatio debitoris could consist of a commission given to a
debtor to repay a debt of his creditor instead of repaying his own debt. In this case
there was no nouatio – i.e. no new claim arose between creditor A and debtor C. The
person who paid the debt on request of the debtor could claim compensation by
means of the actio mandati. Roman law recognised that debts could be repaid by
people other than the debtor (solutio debiti alieni). So in case of delegatio debitoris,
the debt of the debitor delegatus was simply extinguished.564
Barlow’s and Jonker’s interpretation implies that a permutatio consisted legally of
an exchange of claims, which would explain the origin of the term. The interpretation
is probably correct for a number of permutationes but not for all. The permutatio that
Atticus arranged for Cicero in Asia, for example, involved no third person.
Philogenes, one of Atticus’s procurators, paid Cicero in Ephesus, undoubtedly with
money belonging

562
see e.g. CICERO, Att. XIII, 2a, 1; 22, 4; XV, 13a, 1; XVI, 1, 6; 3, 5.
563
JONKERS (1941); BARLOW (1978), p. 162. On nomina transcripticia see GAIUS III, 130. On
delegatio debitoris see GIRARD (1911), p. 701; BERGER (1953), p. 429; BARLOW (1978), p. 161-
1620. On nouatio see GIRARD (1911), p. 692-704; BERGER (1953), p. 600. See also Dig. XLVI, 2 (De
nouationibus et delegationibus).
564
See e.g. Dig.XLVI, 1, 18; 2, 21; 3, 56, pr.; L, 17, 180. Barlow distinguishes a delegatio debitoris
(necessarily including a nouatio) from an attributio (no nouatio). However, neither Cicero (who uses
both terms indiscriminately), nor the jurists seem to have made such a distinction. See CICERO, Att.
XII, 3, 2; 5a, 1; 6, 1; 12, 1; XIII, 2a, 1; 3, 1; 4, 2; XV, 13a, 1; XVI, 3, 5; GIRARD (1911), p. 701;
BERGER (1953), p. 429.

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to Atticus. Legally, the transaction consisted of a mutuum, which was simply


repaid in a place other than the one where it originated.565
Whatever the origin of the term, it seems clear that various legal grounds could be
involved: nouatio, delegatio debiti, solutio debiti alieni and mutuum or depositum
irregulare. This explains why the term permutatio does not occur in legal sources.
However, what was the role played by amici in the arrangement of permutationes?
More specifically, we should ask whether permutationes were organised on a
professional basis by bankers or other financial specialists.
The publicani arranged permutationes for the government using the taxes raised in
the provinces to supply the provincial budget. Cicero received his allowance for the
government of Cilicia in Laodicea.566 When the senate voted that Verres, as governor
of Sicily, would be given an extra 12 million sesterces to buy grain, the publicani in
Sicily paid him the money out of the proceeds from the local taxes.567
Pro-magistrates could avail themselves of the services of the publicani to
repatriate the profits they had made in the provinces. Cicero deposited the 2.2 million
sesterces profit he made in Cilicia with the publicani at Ephesus, who were able to
transfer it by permutatio to Atticus in Rome.568 We have no indication, however, that
private citizens could normally use the services of the publicani, although it is
beyond doubt that the publicani were capable and entitled to provide such services if
they wished to do so.
Scholars have long believed that private individuals could turn to professional
bankers (argentarii) with international contacts like Atticus to arrange permutationes
for them.569 However, Atticus was not an argentarius and although he arranged
several permutationes for Cicero, these were clearly not routine operations for him.
Petrucci nevertheless believes that permutationes belonged to the regular services
provided by argentarii to their customers.570 He adduces

565
Cf. Cod. Iust. IV, 2 (a. 293): Cum te in Gallia cum Syntropo certum auri pondus itemque
numeratam pecuniam mutuo dedisse, ut Romae solueretur …
566
CICERO, Fam. III, 5, 4.
567
CICERO, 2 Verr. III, 163-165.
568
CICERO, Att. XI, 1, 2. The intended permutatio did not take place. It seems that the money was
transferred by permutatio first to Egnatius Rufus, then to Pompey. See CICERO, Fam. V, 20, 9; Att. XI,
1, 2; 2, 3; 3, 3; 13, 4.
569
Cf. HEICHELHEIM (1938), p. 554-557; KIESSLING (1924), col. 700; FRÜCHTL (1912), p.
22-28.
570
PETRUCCI (1991), p. 127.

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three arguments to substantiate his theory. The first point is that deposita
irregularia, which according to him lay at the heart of permutationes, were a typical
service provided by bankers. However, as we have seen, the technique of the
deposita irregularia cannot explain permutationes in which more than two partners
were involved. A much more likely legal basis for permutationes between three
parties was delegatio debitoris. Whether the debt in question resulted from a
depositum irregulare or from a mutuum is irrelevant. We can add that although
deposita irregularia may have been fundamental to the operations of argentarii,
nothing indicates that the argentarii had a monopoly on the practice. Procurators too,
for example, may have used deposita irregularia to manage their principal’s
interests.
Petrucci’s second point is that permutationes were recorded in the accounts
(rationes). A special edict de edendo of the praetor compelled argentarii to hand
over the accounts they made up on behalf of a client when that client was involved in
a trial and needed his accounts as evidence.571 When Cicero wanted to take up the
money of the permutatio he had arranged with Atticus in Ephesus, he ‘handed over
the account’ (edidi rationem) he had made with Atticus to Philogenes, who acted as
Atticus’s procurator. However, argentarii were not the only people who made up
accounts on behalf of others. Paulus explicitly states that procurators, socii and
guardians were not compelled by the edict de edendo to edere rationem because they
could be forced to do so by the actio mandati, societatis and tutelae respectively. The
term edere rationem, however, applied to all categories.572 Moreover, nothing
indicates that the accounts in which permutationes figured were the accounts
administered by a banker or a procurator on behalf of his client or principal rather
than the personal accounts of the persons involved in the permutatio. In the case of
Cicero’s arrangement with Atticus we may note that it was Cicero who notified
Philogenes by editio rationis, and not Atticus. So ratio here cannot refer to any
account held by Atticus on behalf of Cicero, but must be taken in its general sense of
‘financial arrangement. Clearly, therefore, the editio in question is not the legally
required editio of the argentarius.
Petrucci’s third argument is that inscriptions found on Delos and all over the
eastern Mediterranean prove that Roman bankers were active in these

571
Dig. II, 13.
572
Dig. II, 13, 9. See also Cod. Iust. IV, 35, 1 (Septimius Severus and Caracalla): aduersus eum,
cuius negotia gesta sunt, de pecunia quam de propriis opibus uel ab aliis mutuo acceptam erogasti,
mandi actione pro sorte et usuris potes experiri.

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parts.573 A passage in Cicero’s Verrines refers to a Roman banker who had long
been active in Africa. Petrucci concludes that there was a dense network of Roman
bankers active all over the Mediterranean who must have commonly organised
permutationes as a service to each other. However, this is exactly what remains to be
proved!
The problem with permutationes was that they required a great deal of trust
between the persons involved. Delegatio debitoris was not a simple procedure. A
debtor could not be forced to pay a third person. Therefore, a permutatio could not be
enforced as long as the debitor delegatus had not voluntarily accepted a nouatio. This
explains why delegationes in Cicero’s letters often involve elaborate negotiations.574
Delegatio of unfamiliar debtors was considered a risk.575 Cicero warned Atticus to be
careful with a claim which Faberius wanted to delegate as payment of his debt to
Cicero: ‘We must know the (debtor’s) character and not only his financial means’.576
Cicero worried about his financial situation in 44 because he had acquired a number
of claims through attributio on people he did not know.577 When Caesar proposed
that a claim which Cicero had held on an unknown Pompeian whose goods had been
proscribed would be paid through delegatio, Cicero reacted sceptically: ‘Who can I
trust?’ Significantly, Vettienus was willing to buy the claim from Cicero, but offered
only half its nominal value.578
For bankers to be able to offer permutationes as a service to their customers would
have required regular contacts with bankers in other provinces. This was not easy
with the primitive ‘communication technology’ available in the Roman pre-industrial
world. It either presupposed large scale hierarchically structured banking firms with
multiple branches

573
T. Herennius: CICERO, 2 Verr. I, 114; 5, 155-156 (see also infra on the this argentarius).
574
Cf. e.g. CICERO, Att. XII, 12, 1; Q. fr. II, 2, 1-2. See also the difficulties concerning Dolabella’s
repayment of Tullia’s dowry (CICERO, Att. XV, 13a, 1).
575
Cf. VERBOVEN (1993a), p. 84-87.
576
CICERO, Att. XII, 15a: noscenda autem est natura, non facultas modo. On the delegationes in
the case of Faberius’s debt to Cicero see also Att. XII, 6, 1; XIII, 3, 1; 4, 2; 22, 4; 23, 3). See also
BENOEHR (1986a).
577
CICERO, Att. XVI, 3, 5.
578
CICERO, Att. XII, 3, 2: Quis erit cui credam? See BENOEHR (1986b), p. 30-35; FRÜCHTL
(1912), p. 72; ROYER (1967), p. 238; BARLOW (1978), p. 159; SHATZMAN (1975), p. 126-127;
ANDREAU (1987), p. 693; PETRUCCI (1991), p. 109-110. Technically the affair was probably
arranged by a delegatio debitoris. Note that the claims of the Monte de pietà in 14th century Florence
also circulated at half their nominal value. See GOLDSMITH (1987), p. 152, 162, 167.

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138

in different provinces or continuous travel and correspondence between bankers.


We have no indication that the former were anything but exceptional. The latter
required a considerable investment in time, people and means of a magnitude that
most argentarii simply could not afford. Andreau has shown how argentarii
operated mostly on a local level and had only limited funds available.579
This is not to say that no banker ever arranged a permutatio. The businessman T.
Herennius had been a banker in Leptis Magna for many year before he moved to
Syracuse where he had been born. He may very well have had the contacts needed to
arrange permutationes between Leptis and Syracuse.580 Andreau notes that many
argentarii of the Late Republic left their home-town to conduct their banking
business elsewhere.581 Whatever the reasons for their emigration, it may have given
them the opportunity to arrange permutationes between their hometowns and the
cities where their banks were located. However, if these bankers did arrange
permutationes – which is still no more than a hypothetical possibility – they probably
had to depend on their personal networks of family and friends back in their home-
town for assistance.
In other words, it is not enough that we can establish a presence of Roman bankers
all over the Mediterranean to assume efficient operative networks between them.582
The people most likely to have had the means necessary to organise permutationes
were not bankers, but international traders and financiers and, of course, members of
the aristocracy owning property in several provinces. In general it may well have
been the case that international traders did not depend on bankers to transfer funds
from one province to the other, but rather that bankers depended on international
traders to arrange permutationes if necessary.
More important still, however, is how these networks operated to organise
permutationes. How easy were these to organise? Only a few examples of actual
permutationes are attested.583 I have already

579
On Atticus as a banker see BARLOW (1978), p. 256; WELCH (1996); BYRNE (1920), p. 11-12;
CARCOPINO (1947), p. 267-268; 285-289; PERLWITZ (1992), p. 63. Contra see ANDREAU (1978),
p. 52; ANDREAU (1982), p. 105-106; BÜRGE (1987), p. 487. On argentarii in general see ANDREAU
(1987), p. 61-177, and passim.
580
CICERO, 2 Verr. I, 114; 5, 155-156. See ANDREAU (1987), p. 419-420.
581
ANDREAU (1985), p. 384-385.
582
On business networks see ANDREAU (1995a).
583
Apart from the examples discussed here, see also Cicero, Pis. 48 where a few manuscripts read
that Gabinius used permutationes to transfer the proceeds from his robberies as governor of Syria back
to Italy.

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139

mentioned the first of these, viz. the permutatio arranged by Atticus in 51 through
which Cicero was supplied with money in Ephesus, where Atticus had business
interests. Atticus’s procurator Philogenes paid the money after Cicero formally
notified him of the arrangement. When Cicero arrived in Ephesus, he found that he
did not need the money after all. Instead of not taking up the permutatio, however,
Cicero preferred to lend the sum in question to Philogenes for as long as he liked and
apparently without charging interest. Since Atticus advanced the money to Cicero,
who was to pay him back in Italy, the permutatio in question also benefited Atticus
since it offered him a way to repatriate the profits he had made in Asia. This case
proves that a permutatio could take place between two persons (rather than three). 584
In 45, Cicero asked Atticus to arrange a permutatio to finance young Cicero’s stay
in Athens. Atticus turned to an Athenian friend, Xeno, who agreed to pay out the
money to young Cicero in Athens in instalments. The money was paid to Atticus by
Cicero’s dispensator, Eros.585 Cicero was very cautious when he made his request to
Atticus. He excused himself for bothering his friend with it, but he knew no one else
who could organise the matter. Clearly, Atticus’s intervention could not be taken for
granted and it appears that Cicero was not sure whether his friend would be able
arrange the affair.
A third permutatio in which Atticus was involved was intended to supply Cicero
with money in Brundisium where he awaited Caesar’s return and pardon after
Pompey’s defeat. In this case, Atticus turned to a certain Minucius from Tarentum –
who apparently resided in Brundisium and had business interests in Rome – to
transfer the money to Cicero. Terentia paid the money directly to Minucius’s
procurators in Rome. Significantly, Minucius was extremely cautious and was
willing to hand over the money only after his procurators had notified him that they
had received the sum due.586
In Att. XI,24,3 Cicero describes a permutatio as ‘to send money’ (mittere
pecuniam). The same expression is found in connection with the

584
CICERO, Att. V, 13, 2; 15, 2. On the loan to Philogenes (evidently a beneficium-mutuum) see Att.
VII, 5, 3; 7, 2. See also SHACKLETON BAILEY (1965-1970) III, p. 300; TYRELL & PURSER (1904-
1933) III, p. 309; PETRUCCI (1991), p. 120; FRÜCHTL (1912), p. 24-25.
585
CICERO, Att. XII, 24, 1; 27, 2; 32, 2; XIII, 37, 1; XIV, 16, 4; XV, 15, 4; 17, 2; XVI, 1, 5. See
PETRUCCI (1991), p. 116-119; BARLOW (1978), p. 170; ANDREAU (1978), p. 53; FRÜCHTL
(1912), p. 25-26.
586
CICERO, Att. XI, 11, 2; 14, 3; 15, 2; 17a, 3, 24, 3; 21, 3.

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costs of Tiro’s medical treatment in Patrae, where Cicero had left him in the care
of the businessman M’ Curius. Cicero apparently counted on Curius to arrange the
permutatio. Curius was a client of Atticus and had hosted Cicero in Patrae, using the
occasion to establish a direct amicitia with Cicero by writing him into his will.587
The difference between permutationes and mutua was often small. Thus Früchtl
considered the loan that Cn. Sallustius gave to Cicero in Greece in 48 to have been a
permutatio. Although this was certainly not Sallustius’s intention from the start, the
transaction was indeed turned into a permutatio when Cicero asked Atticus to
arrange repayment of the loan in Rome to Sallustius’s brother while Cn. Sallustius
himself stayed with Cicero in Brundisium.588
In 58, Q. Cicero proposed to send money by a permutatio to his brother in exile in
Macedonia. We do not know how Quintus hoped to arrange the permutatio, but it
seems likely that he would have turned to Atticus. Cicero, however, refused the offer.
589

These few examples illustrate that permutationes were never routine. They
required voluntary co-operation and reliability from all those involved. In other
words, permutationes required relations based on mutual trust. Consequently, both
professionals and non professionals depended on networks of amicitia to arrange
them.590

1.10 Surety.
The Roman system of contractual obligations attached much importance to the
personality of the parties involved. Trustworthiness (fides) and reputation
(existimatio) were key elements of the system, reflected among other things in the
habit of guaranteeing debts by personal surety.591

587
CICERO, Fam. XVI, 9, 3: Curio misi, ut medico honos haberetur, et tibi daret, quod opus esset;
me cui iussisset, curaturum. On Curius’s will and his relation with Cicero see infra.
588
CICERO, Att. XI, 11, 2; 13, 4. See FRÜCHTL (1912), p. 21; BARLOW (1978), p. 170.
589
CICERO, Q. fr. I, 3, 7.
590
See also JONKERS (1941), p. 185, who rightly uses the term ‘Geschäftsfreunde’.
591
MACQUERON (1957); VAN OVEN (1948), p. 404-412; JOLOWICZ (1939), p. 313-317.

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a) Legal framework

There were several types of personal sureties. The oldest type was that of the
praes, who by the Late Republic only guaranteed contractual obligations to the
state.592 Contracts between private persons were usually guaranteed by
adpromissores, who ‘added’ themselves to the contracts involved by a sponsio or
fidepromissio ‘to do the same’.593
Surety by means of adpromissio was subject to rigid and inflexible rules. To begin
with it was possible only in the case of obligations contracted orally (uerbis), i.e. in
the case of stipulationes. Consequently, it was not possible to guarantee pure mutua
this way . The obligation contracted by the adpromissor was not hereditary and was
extinguished at his death. Moreover, between the late third century and the time of
Sulla, the system of adpromissio was modified and further limited by five important
laws.594 The ancient lex Publilia (4th / 3d. century BCE ?) granted the adpromissor
the right to sue the original debtor for double the amount paid out. 595 The lex Apuleia
(after 241) created a societas between the sureties by which an adpromissor who had
repaid a debt could force the other adpromissores to pay their share. The lex Furia
confirmed this principle by making the adpromissores liable only to the extent of
their share.596 The same law gave the sureties the right to sue creditors who had
received more than the sum due from any one adpromissor. This implied that a
creditor had to call on each of the adpromissores separately for exactly their share of
the balance due. Moreover, the law set a time limit on the liability of the
adpromissores of two years after the expiration date of the contract they had
guaranteed.597 The lex Cicereia (second century BCE ?) stipulated that a creditor had
to proclaim publicly who was adpromissor for whom and to what amount. The lex
Cornelia (from Sulla) limited the liability of the sureties to 20,000 sesterces.598
At least by the beginning of the Empire onwards, adpromissiones were gradually
replaced by the more flexible fideiussiones. Although fideiussio

592
Cf. WESENER (1974a); WESENER (1974b); JOLOWICZ (1939), p. 190, 314.
593
See WATSON (1965), p. 6-9; GIRARD (1911), p. 750-766.
594
Cf. VAN OVEN (1948), p. 406-407; GAIUS III, 115-127.
595
GIRARD (1911), p. 761-762; WATSON (1965), p. 7-8; KASER (1955) I, p. 155.
596
GIRARD (1911), p. 758-759; KASER (1955) I, p. 554; BERGER (1953), p. 547, 552.
597
Cf. MACQUERON (1957), p. 114-115; JOLOWICZ (1939), p. 315; VAN OVEN (1948), p. 407.
598
KASER (1955) I, p. 555; BERGER (1953), p. 549.

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was also based essentially on a stipulatio, it was applicable to all kinds of


obligations (including mutua) and created an hereditary obligation. Any fideiussor
was individually liable to the extent of the entire debt and could not sue other
fideiussores.
Most scholars incline to believe that the system of the fideiussiones was developed
in the time of Augustus. The main argument is that it seems to be based on the actio
quod iussu that is usually dated to this period. However, this traditional date of the
actio quod iussu is not certain. Aubert, for example, believes that the actio quod
iussu was the first of the actiones adiectiae qualitatis to be created, which implies a
date early in the second half of the second century BCE. Curiously, of the five laws
mentioned above, only the lex Cornelia (limiting liability to 20,000 sesterces) was
applicable to the system of fideiussio, which may indicate that by Sulla’s time
fideiussio was possible. 599
The mandatum pecuniae credendae originated in the Ciceronian period. It
consisted of a mandate given by the surety to a creditor to lend money to a specified
debtor. The jurist Ser. Sulpicius Rufus disputed its legality because the mandate was
to the advantage of the mandatory (mandatum tua gratia). Sulpicius’s opinion proves
that this form of surety already existed in his time. It became a common form of
surety under Augustus. The mandatum pecuniae credendae was much more flexible
even than fideiussio, because it did not rest on the formal contract of stipulatio, but
on the informal consensual contract of mandate, which implied among other things
that the surety did not have to be present in person to assume liability.600
The last type of surety to develop in Roman law was the constitutum debiti alieni,
which consisted of an informal promise to pay a debt. The constitutum debiti existed
in the Late Republic as a way to renew existing debts (nouatio), but it is not certain
whether it was then already applicable to debts of third parties.601

599
Cf. VAN OVEN (1948), p. 407-412; JOLOWICZ (1939), p. 316; MACQUERON (1957), p. 106,
n. 14; GAIUS III, 115-127. On the early date of the actio quod iussu see AUBERT (1994), p. 50-52, 78-
80. See also COSTA
600
See JOLOWICZ (1939), p. 316; VAN OVEN (1948), p. 291-292, 409-410; WATSON (1961), p.
113-114; GIRARD (1911), p. 753-766; KASER (1955) I, p. 557; GAIUS III, 156.
601
BERGER (1953), p. 410; JOLOWICZ (1939), p. 316-317; VAN OVEN (1948), p. 307-308. On
constitutum debiti in general see GIRARD (1911), p. 602-605; KASER (1955) I, p. 487.

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b) Surety as an officium amicitiae

Standing surety for friends and clients was an important social obligation.602 A
satire of Horace features the poet being awakened by Ianus, god of the morning,
exhorting him to go to the forum where he should stand surety before someone else
assumed the obligation. Porphyrius comments: ‘so that another would not become
sponsor before you and you would seem not to want to assume the duty of a
friend’603 A passage in Cicero’s oration Pro Plancio places sureties (sponsiones) in a
context of gratia, officia, benignitas, liberalitas and obseruantia.604 A passage in the
Pro Rabirio links various forms of surety (fide sustentatio) with amicitia.605 A letter
of recommendation written for Curtius Mithres mentions Mithres’s willingness to
stand surety as a sign of his beneuolentia and fides.606 Seneca mentions personal
surety as a special category of beneficia.607 In Cicero’s Pro Murena we read that poor
friends showed their friendship by salutations (salutationes) and escorts
(adsectationes) because they could not afford more substantial officia such as
standing surety (sponsiones).608 We may also note that a guarantor, regardless of the
type of suretyship he had taken on himself, could always sue the original debtor by
an actio mandati as if he were mandated to stand surety. We will later see that
mandatum itself was conceived as a duty of friends.609
When Cicero planned to buy gardens (horti) out of the inheritance left by a certain
Scapula, he considered it self-evident that Atticus would stand surety.610 According
to Plutarch, Cato the Younger stood surety

602
Cf. ROYER (1967), p. 229-231; MICHEL (1962), p. 540-543, 564.
603
HORACE, Serm. II, 6, 23-26: … Romae sponsorem me rapis: ‘Heia / ne prior officio quisquam
respondeat, urge. PORPHYRIO, in h. l.: ne alius sponsor ante te fiat et tu uidearis noluisse officio amici
fungi.
604
CICERO, Planc. 47.
605
CICERO, Rab. Post. 4.
606
CICERO, Fam. XIII, 69, 1.
607
SENECA, Ben. I, 2, 4.
608
CICERO, Mur. 70-71.
609
Cf. GAIUS III, 127.
610
CICERO, Att. XIII, 3, 1. Note that Cicero wrote this passage teasingly. The state seems to have
been involved because the property of one of the heirs had been confiscated. This meant that the type of
surety involved was that of a praes. We know from Cornelius Nepos that Atticus in principle refused to
be praes. And so Cicero wrote: praes aliquando factus es<ses>, et in his quidem tabulis (i.e. in a
transaction concerning confiscated property). See SHACKLETON BAILEY (1965-1970) V, p. 335,
355. On the inheritance and the horti see CICERO, Att. XII, 5a; 37, 2; 38a, 2; 44, 2; 47, 1; 51, 2; 52, 2;
XIII, 26, 1; 29, 1; 31, 4; 33, 2; 22, 4; 33a, 1.

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(as a praes) ‘with slaves and land’ for many of his friends in contracts with the
state.611 The ex-consul D. Iunius Brutus guaranteed the contract that P. Iunius made
with the state to rebuild the temple of Castor and Pollux. The similarity of names
suggests that P. Iunius was a protégé of D. Brutus.612 The case of L. Tullius
Montanus is less clear. Montanus had stood surety as praes for Flaminius Flamma,
probably concerning the purchase of confiscated property. Because Flamma did not
pay up Montanus was summoned by the praefectus urbi, L. Munatius Plancus.
However, we do not know what relation Montanus had with Flaminius Flamma.613
Equally obscure are the relations between the tax-farmer P. Valerius and his praedes,
M. Anneius and Paconius Lepta.614
Cicero stood surety in a private contract of Q. Cornificius. The case is remarkable
because Cicero himself claimed not to have been close to Cornificius at the time
when the debt was contracted. However, it was precisely because he did not have an
amicitia with Cornificius at the time that Cicero was distrustful of the case.615
Crassus stood surety for Caesar for political reasons in 61 for 830 talents.616 He may
have used the same strategy again in 60 to bribe a number of jurors in the Bona Dea
trial against P. Clodius 617 Brutus claimed to have stood surety for two familiares, M.
Scaptius and P. Matinius, who had lent a considerable sum to the city of Salamis.
Their solvency – and, therefore, Brutus’s own money – depended on the repayment
of the loan. We have already seen that Brutus lied and that he himself was the true
creditor behind the deal. Nevertheless, the claim was meant to convince Cicero of the
importance which Brutus attached to the matter and, therefore, must have been
credible.618
Cicero stood surety for P. Magius Chilo, a client and old friend (uetus amicus) of
M. Marcellus (cos. 51), who was a political friend of Cicero

611
PLUTARCH, Cat. Min. 6, 4.
612
CICERO, 2 Verr. I, 130-152 (esp. § 144, 150).
613
CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1. See SHATZMAN
(1975), p. 387; TYRELL & PURSER (1904-1933) V, p. 88; SHACKLETON BAILEY (1965-1970) V,
p. 341.
614
CICERO, Att. V, 21, 14; Fam. V, 20, 3-4.
615
CICERO, Att. XII, 14, 2; 17; 19, 2. See also MACQUERON (1957), p. 111-118.
616
SUETONIUS, Iul.18, 1; PLUTARCH, Caes. 11, 1.
617
CICERO, Att. I, 16, 5: Arcessiuit ad se, promisit, intercessit, dedit. Cf. WARD (1977), p. 205-
209. Against the identification of Crassus see TATUM (1999), p. 82-85.
618
CICERO, Att. VI, 1, 6. On the Salamis case cf. supra p. 130.

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himself. When Magius proved insolvent in 45, he turned to his patron Marcellus
for help. When Marcellus refused to help, Magius was infuriated and killed first
Marcellus and then himself. Clearly, Magius felt he had a right to Marcellus’s
support.619
The former tribune of the plebs T. Fadius asked in vain for a financial intercession
from Cicero. Fadius, as quaestor, had stood by Cicero against Catiline in 63 as
quaestor and had promoted Cicero’s recall from exile as tribune in 58. Cicero’s
refusal to stand surety (intercessio) enraged Fadius and induced him to break off his
amicitia with Cicero.620 We have already seen Crassus doing the same for Caesar in
61. C. Scribonius Curio guaranteed the huge debts (6 million sesterces) that Marc
Antony inherited from his father. According to Cicero, the two young men were
lovers at the time.621
Perhaps we should add Cicero’s help to Tullius Montanus. It seems likely that
Cicero guaranteed Montanus’s debt in order for him to obtain a year’s remission of
repayment. Cicero described his intervention as constituisse Montani nomine …
dissoluere. Although we cannot be sure that the term constituere is here used in its
technical sense, we may be dealing with the oldest attestation of a constitutum debiti
alieni.622
Surety post factum was closely related to simple payment of debts, with which it
formed one and the same general personal obligation (officium). Significantly, Cicero
described this duty with the comprehensive expression ‘to sustain a friend’s debts’
(aes alienum suscipiunt amicorum).623 We find the same expression in the Digest
both in the sense of ‘to take over a debt’ and in the sense of ‘to stand surety’.624 In the
Pro Rabirio we read that Caesar was the only one to stand by Postumus after his
return from Egypt and ‘to support him with (all) his means, fortune

619
CICERO, Fam. XIII, 10, 3. See also supra p. 123 on the case. For Cicero’s relation with
Marcellus see CICERO, Fam. IV, 7, 1; 11, 2; XV, 9, 3; Brut. 251 and of course CICERO, Marc. passim.
620
CICERO, Fam. VII, 27, 1.
621
CICERO, Phil. II, 44-46.
622
CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1. Note that a year
later Plancus demanded repayment from Montanus’s procurators, which could indicate that Cicero’s
promise (constitutum) to intercede was made to Montanus informally and not formally to Plancus.
However, a Roman creditor had the right to sue a debtor without first turning to his sureties. See
MACQUERON (1957). P. 101-102.
623
CICERO, Off. II, 55.
624
Dig. XIV, 3, 19, 3 (per intercessionem aes alienum suscipiens); XVI, 1, 2, 5; 13, pr.; 1, 32.

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and credit’.625 A passage from Ulpianus in the Digest indicates that a debtor in
financial straits would normally turn to his amici with the request that they would
either pay his debts or stand surety for a renewal (nouatio).626
A remarkable aspect of the Roman system of personal sureties was that standing
surety for a debtor was sometimes rather a beneficium towards the creditor than
towards the debtor. This can be inferred from the remuneration that a creditor
sometimes gave to the guarantor of a debt.627 We may note in this connection that
Egnatius Rufus, who stood surety for Scribonius Libo towards Cicero, was a close
friend (familiarissimus) of both Marcus and Quintus Cicero.628 The service is to be
related to the common practice, well attested under the Empire, of faeneratores
offering credit support for contracts made by businessmen.629
When a debtor defrauded his creditor, it was customary for the creditor to convene
a meeting with the debtor’s sureties. Thus L. Trebellius’s sponsores and creditores
met daily in 44.630 In his oration Pro Quinctio, Cicero argued against Sex. Naevius’s
claim that Quinctius had committed fraud by asking rhetorically why the creditors
and sureties had not met with each other?631 A tablet from the archive of the
Puteolean Sulpicii attests to the co-operation between creditors and sureties to
prepare the proscription of an insolvent debtor’s goods after his death.632 The lex
Iulia municipalis stipulated that it was unlawful for a person to be a member of the
city council if he had notified his sponsores or creditores that he was insolvent.633
Of course, such co-operation does not necessarily mean that the personal sureties
had intervened initially to oblige the creditor. It rather illustrates

625
CICERO, Rab. Post. 43: sustinuit re, fortuna, fide. See also Rab. Post. 41.
626
Dig. XXII, 1, 21.
627
Cf. Dig. XVII, 1, 10, 13; 1, 12, pr.-1. See also MICHEL (1962), p. 282-283, 541, n. 541. Note
that remuneration of the guarantor by the debtor is also attested: Dig. XVII, 1, 6, 7; IXL, 5, 19, 1;
MICHEL (1962), p. 220-221.
628
CICERO, Att. XII, 18, 3; 19, 2. For Egnatius’s relation with the Cicerones cf. CICERO, Fam.
XIII, 43, 1; 45; 47, 1; 73; 74; Att. XIV, 15, 5. See also NICOLET (1966-1974), p. 866-868; DENIAUX
(1993a), p. 494-496.
629
see TPSulp. 48 (cf. WOLF (1993), p. 83); Formula Baetica (FIRA III, no. 92, p. 295-297); Dig.
XXXIV, 3, 28, 6 (Scaevola); 3, 31, 4 (Scaevola); XIV, 3, 19, 3 (Papinianus); probably also SENECA,
Epist. 119, 1 (cf. infra p. 147 for the text).
630
CICERO, Phil. II, 4, 11.
631
CICERO, Quinct. 73.
632
TPSulp. 86. See CAMODECA (1999), p. 192-194.
633
Tab. Heracl. 114. FIRA I, no. 13, p. 149. CRAWFORD (1996), p. 367, 376, 386.

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the role played by Roman sureties as intermediaries. When Apuleius turned to


Cicero as surety for a debt of Q. Cornificius, Cicero asked his procurator Atticus to
pass the claim on to Cornificius’s procurators. Presumably, it had not been
Apuleius’s intention that Cicero would pay Cornificius’s debt immediately, but
rather that he would press Cornificius to pay up.634 A comparable situation can be
found in the case of Heraclides’s debt to C. and M. Fufius, for which a certain
Hermippus – like Heraclides a citizen of Temnos – stood surety. When Heraclides
left Rome without paying up, the Fufii sent a freedman to Hermippus who
immediately contacted Heraclides requesting him to pay his debt. It was not until it
became clear that Heraclides refused to comply that Hermippus paid in his place.635
Both cases illustrate how Roman sureties were primarily intermediaries on which
creditors could rely to intervene in case of default.
One of Seneca’s letters to Lucilius is worth mentioning in this connection. The
letter mentions two ways in which businessmen (negotiatores) could get loans: either
through personal sureties (intercessores) – probably referring to credit support
offered by faeneratores (cf. infra) – or through proxenetae.636 Proxenetae were
professional brokers who mediated contracts (in this case loans) in exchange for a
fee. It seems to have been a point of discussion among jurists whether a proxeneta
could be held liable as surety on the grounds that he gave a mandatum pecuniae
credendae to the creditor. Ulpianus did not think so: ‘he advises on an account, rather
than gives a mandate’ (monstrat magis nomen quam mandat).637
The part of active intermediary expected from sureties is further illustrated by an
ironic passage in a letter from Cicero to Atticus. It shows how Cicero intervened with
Atticus for young Quintus Cicero, who had courted Caesar and Marc Antony a while
but who now promised to mend his ways and to choose the side of Brutus and
Cassius. The passage is framed in financial terms sublimely expressing Cicero’s
scepticism towards the

634
CICERO, Att. XII, 14, 2; 17; 19, 2. See MACQUERON (1957), p. 111-118. See also supra p.
144.
635
CICERO, Flacc. 46-50. MACQUERON (1957), p. 107-111; ZEHNACKER (1979). On the Fufii
see NICOLET (1966-1974), p. 884; MASELLI (1986), p. 50-51.
636
SENECA, Epist. 119, 1: ut negotiari possis, aes alienum facias oportet, sed nolo per inter-
cessorem mutueris, nolo proxenetae nomen tuum iactent.
637
Dig. L, 14, 1-2. On the proxeneta see SIBER (1939-1940), p. 177-179; MICHEL (1962), p. 193-
195, 533; GIRARD (1911), p. 665, n. 1; VERBOVEN (1993a), p. 90-91; ANDREAU (1987), p. 668.

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young man’s intentions. Young Quintus was deeply in debt and Cicero described
himself as his nephew’s guarantor (sponsor), trying to persuade Atticus (and Brutus)
to credere, i.e. to believe Quintus ... and to lend him money.638
Clearly, Roman customs regarding sureties were in many ways different from
modern customs. Macqueron rightly concluded that personal surety in Rome ‘était
beaucoup plus un moyen de pression qu’un moyen de satisfaction par
substitution’.639
Understandably, Roman creditors were reticent when it came to demanding
repayment from someone’s sureties. Suing a debtor’s personal sureties rather
functioned as a last resort held in stock to spur the sureties to put pressure on a
debtor. When his former son-in-law Dolabella kept postponing repayment of Tullia’s
dowry in 44, Cicero considered it unseemly ( ) to sue Dolabella’s
sponsores. In the end he preferred to sue Dolabella himself (via his procurators),
knowing well that he thereby forfeited the right to sue the sponsores.640
Of course, we should not exaggerate the creditors’ reticence to sue. The case of
Heraclides’s debt to the Fufii shows an example of a surety actually repaying a debt.
Q. Paconius Lepta and Ser. Sulpicius Galba were nearly forced to pay a debt of
Pompey’s for which they had gone surety before the civil war. Only by publicly
confronting Caesar – who had confiscated Pompey’s property – with the case did
they succeed in persuading the dictator to repay the debt himself.641
So personal sureties were forced to repay the debts they guaranteed if necessary,
but this was normally done only after they had intervened in vain with the debtor.
That which is the only role of a guarantor in modern contractual systems was merely
his ultimate duty – to be performed when all else had failed – in the Roman system,
which relied primarily on negotiation and pressure from networks of common
friends.

1.11 The purpose of loans.


Credit is usually divided into productive and non-productive credit, according to
whether the debtor intents to invest the money in a productive enterprise (the profits
of which will subsequently repay the loan) or

638
CICERO, Att. XVI, 5, 2. See also Att. XVI, 1, 6.
639
MACQUERON (1957), p. 107.
640
CICERO, Att. XVI, 15, 1-2; Fam. XVI, 24, 2.
641
CICERO, Fam. VI, 18, 3; VALERIUS MAXIMUS VI, 2, 11.

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whether he merely intends to finance consumption or status related expenditures.


We will return to the problem of defining productive credit more precisely when
surveying the attested instances of productive credit (cf. infra).
Finley and his followers are quite categorical in their evaluation of ancient Roman
and Greek credit. Although borrowing was very frequent, virtually all loans were
meant to finance social, political and status expenditure, or to cover unexpected
deficits.642 Finley makes an exception for maritime credit but in his eyes this was
rather an insurance mechanism than a form of credit. In short, productive loans were
marginal to the credit system.
It is hard to see how Finley could deny the credit aspect of maritime loan contracts
since the debtors used the money to finance their enterprises and were clearly
expected to repay the money with interest. Although one may concede that the
exorbitant interest rates charged on maritime loans included an insurance premium,
this does not imply that the money was any less a ‘loan’. Car dealers today offer
credit arrangements including clauses stipulating that payments stop when the buyer
has an accident with a total loss or when the car is stolen. The arrangement,
therefore, includes a limited insurance, but this does not make it any less a credit
arrangement.643
Opposed to Finley are modernist researchers such as Cohen, Maselli and Petrucci,
who argue that the ancient credit systems of Athens and Rome were well organised
and capable of funding large scale business activities. They believe that productive
credits, organised on a professional basis, were common and essential to the
economy. Of course, loans to finance consumption and non-productive credit existed
as they do today, but they did not dominate the financial system.644
Bogaert (in his study on banks in the Greek world) takes a much more empirical
approach to the problem by systematically analysing all sources available. His
conclusion is that there are little or no indications that Greek banks regularly gave
loans for productive purposes. The explanation offered by Bogaert is that interest
rates were usually too high to

642
See FINLEY (1973), p. 141-142; MILLETT (1991), p. 59-74; BÜRGE (1980), p. 125. See also
ANDREAU (1977) on Finley’s ideas about credit in the ancient world. For productive vs. non-
productive credit see MILLETT (1991), p. 229-232.
643
On maritime loans see ROUGÉ (1980); ROUGÉ (1966), p. 345-360; ANDREAU (1999), p. 54-
56.
644
COHEN (1990); COHEN (1992); MASELLI (1986); PETRUCCI (1991).

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attract entrepreneurs. From the banker’s point of view the high interest rates were
necessary to compensate for the high risks involved in lending out their client’s
money.
However, Bogaert also shows that banks were not the only source of credit.
Wealthy people commonly lent their own money at considerable interest rates. Thus,
for instance, maritime loans were the exclusive domain of wealthy financiers using
their own private means.645 Andreau reached the same conclusions for the Roman
banking system. Argentarii (and later nummularii) had only limited means at their
disposal. The loans that they extended were relatively small and had to be paid back
after a brief period of time (a few months at the most). Apart from the argentarii,
however, wealthy faeneratores with their own private means were active, lending
much larger sums for longer periods.646
Much of the disagreement stems from the problem of generalisation. Instances of
productive credit are rare, but they exist and given the fact that our sources focus on
the aristocracy and not on the business world, it seems logical that non-productive
credit is more frequently attested.647 The issue need not concern us further here.
However, where does amicitia fit in? Were there specific expenditures for which one
borrowed money preferably from ‘friends’ and others for which one turned to
professional financiers? Did the duty to assist friends with loans depend on the
purpose for which the money was lent or were amici expected to give loans
regardless of the debtor’s intentions?

a) Political debts.

Political debts are among the best attested in the Late Republic and are generally
considered as a symptom of the collapse of the Republican political system. The
costs of pursuing a political career skyrocketed as the importance of grandiose
games, public building projects and electoral (and other) bribery increased. Only
very few candidates had the means to cover the expenses required. L. Aemilius
Paullus, for instance, (consul in 50) became heavily indebted after 55 when he took it
upon himself to

645
BOGAERT (1968), p. 356-359; BOGAERT (1966), p. 50-51, 80-84.; contra see COHEN (1992),
p. 136-189 (for a response see BOGAERT (1995)).
646
ANDREAU (1987), p. 359-438, 527-606; ANDREAU (1974), p. 73-122; ANDREAU (1985);
ANDREAU (1978). See also BÜRGE (1987).
647
On the existence of productive credit see e.g. PLUTARCH, Mor. 523F and of course the tablets
from the Agro Murecine (CAMODECA (1999); VERBOVEN (2000b)).

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151

renew the Basilica Aemilia, built by his great-grandfather.648 Faustus Sulla


(quaestor in 54) faced huge expenses that dragged him deeply into debt when he
agreed to rebuilt the Curia Hostilia, which had been burned down in the riots
following the murder of P. Clodius.649 Many politicians fell victim to a dangerous
cycle driving them into huge debts that they could only repay when they obtained a
provincial command, i.e. when they progressed at least to the level of praetor. Failure
inevitably led to bankruptcy and social degradation.650
Caesar accumulated debts throughout his early career. Probably after his
quaestorship he was appointed curator of the Appian Way, for the repair of which he
expended vast sums of money. As an aedile he not only celebrated the Ludi Romani
and the Megalesia in a particularly magnificent manner, but also organised lavish
gladiatorial games in honour of his father. In 63, he relied on bribery to obtain the
office of pontifex maximus. By the time he reached the praetorship he owed the
incredible sum of 25 million sesterces. In 61, his creditors prevented him from
leaving Rome to take up the governership of Hispania Ulterior until Crassus went
surety for 830 talents (19,920,000 sesterces). Crassus’s intervention (which was
clearly politically motivated) shows that at least the majority of Caesar’s creditors
were common faeneratores who speculated on their debtor’s successful career.651
Caesar was exceptional only with regard to the enormity of his debts. We find
numerous other politicians deeply in debt over the course of the first century BCE.
Both Cicero and Sallust agree that Catiline was driven to conspire against the senate
by the huge debts he had incurred in vain to obtain the consulship. According to
Sallust, Catiline denied that his actions were motivated by his indebtedness and
asserted that his credit was in any case upheld by the liberalitas of his mistress
Aurelia Orestilla and her daughter. The opposition between the threat of his creditors
and Orestilla’s liberalitas indicates that the former were professional money-
lenders.652 Antonius Hybrida was expelled from the senate in 70

648
SHATZMAN (1975), p. 289-290.
649
SHATZMAN (1975), p. 335-336.
650
GELZER (1912), p. 91-102; SHATZMAN (1975), p. 84-98; ROYER (1967); HOPKINS (1978),
p. 48-49; FINLEY (1973), p. 53-55; VERBOVEN (1993a), p. 83-84. For political debts in Athens see
MILLETT (1991), p. 85, 89, 153-519.
651
SUETONIUS, Iul. 13; 18, 1; 54, 1; PLUTARCH, Caes. 5, 4; 7, 1-2; 11, 1; Crass. 7, 6. See
SHATZMAN (1975), p. 347-348; GELZER (1912), p. 95-96
652
ASCONIUS, Tog. Cand. 73 (ed. Clark); CICERO, Cat. I, 14; SALLUST, Cat. 5, 7; 35, 5; Q.
CICERO, Comm. Pet. 10; SHATZMAN (1975), p. 397-398.

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because his debts exceeded his assets. This did not prevent him from incurring
new debts to start his political career anew. By the time he reached the consulship in
63 he was so deep in debt that Cicero could only just prevent him from joining
Catiline’s conspiracy. Although we have no information on the identity of
Antonius’s creditors were, we may infer from the fact that he was forced to sell a
considerable part of his patrimony that they were professional faeneratores.653 M.
Aemilius Scaurus incurred heavy debts during his term as aedile, which became
legendary for its lavishness.654 A. Gabinius was on the brink of bankruptcy when he
entered his tribunate in 67, according to Cicero, who emphatically asserts that his
creditors were professional faeneratores.655
Electoral bribery was practised on an unprecedented scale in the consular elections
of 54. Two candidates, M. Valerius Messalla Rufus and M. Aemilius Scaurus
promised to pay 10 million sesterces to the centuria praerogatiua alone. Cicero
claims that interest rates doubled in a few weeks time.656
Debt was again a major factor in the escalation leading to the second civil war in
the late fifties BCE. Aemilius Paullus657 (consul in 50), C. Scribonius Curio658
(tribune of the plebs in 50), M. Caelius Rufus659 (aedile in 52), P. Sestius660 (praetor
in 54 or 50) and Marc Antony661 (tribune of the plebs in 49) chose Caesar’s side.
Lentulus Crus662 (consul in 49), Scribonius Libo663 (praetor in 50?), Metellus Pius
Scipio Nasica664 (consul in 52) and Faustus Sulla665 (quaestor in 54) chose Pompey’s
side.

653
ASCONIUS, Tog. Cand. 75; 78 (ed. Clark); Q. CICERO, Comm. Pet. 8; PLUTARCH, Cic., 12,
3; SHATZMAN (1975), p. 295-296.
654
ASCONIUS, Scaur. 16 (ed. Clark); PLINY, N.H. XXXVI, 113-114; SHATZMAN (1975), p.
290-292.
655
CICERO, Sen. 11; Sest. 18; 28; Pis. 12; 48; Schol. Bobb., p. 169 (ed. Hildebrandt (Teubner));
SHATZMAN (1975), p. 293-294; WILLIAMS (1973), p. 44.
656
CICERO, Q. fr. II, 15(14), 4; Att. IV, 15, 7.
657
PLUTARCH, Caes. 29, 3; Pomp. 58, 1; SUETONIUS, Iul. 29, 1; APPIAN, B.C, 2, 26; DIO XL,
63, 2; SHATZMAN (1975), p. 289-290.
658
PLUTARCH, Pomp. 58, 1; VELLEIUS PATERCULUS II, 48, 3-4; LUCANUS I, 269; IV, 819-
820; APPIAN, B.C. II, 26; DIO XL, 60, 2; SHATZMAN (1975), p. 396.
659
CICERO, Att. VI, 1, 23; VII, 3, 6-11; SHATZMAN (1975), p. 311.
660
CICERO, Att. VI, 1, 23; SHATZMAN (1975), p. 398.
661
CICERO, Phil. II, 4; PLUTARCH, Pomp. 58, 1; SHATZMAN (1975), p. 297-304.
662
CAESAR, B.C. I, 4, 2; VELLEIUS PATERCULUS II, 49, 3; SHATZMAN (1975), p. 333-334.
663
CICERO, Att. IX, 11, 4; SHATZMAN (1975), p. 397.
664
CICERO, Att. IX, 11, 4; CAESAR, B.C. I, 4, 2-3; SHATZMAN (1975), p. 335-336.
665
CICERO, Att. IX, 11, 4; PLUTARCH, Cic. 27, 3; SHATZMAN (1975), p. 309-310.

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153

It is remarkable to find how many ‘political’ debts seem to have been incurred
from faeneratores. We know that political allies were expected to support each other
financially and that important politicians such as Crassus and Caesar (in the late
fifties) offered interest-free or cheap loans to buy political support. So why were so
many promising young politicians burdened with commercial debts? The question
has hardly been raised until now. Scholars seem to take it for granted that loans from
kinsmen, friends and allies were insufficient. There is no clear-cut answer to the
problem, but we may surmise that at least some politicians shrunk from becoming
too dependent on the ‘mighty few’. Cicero was very embarrassed by the 800,000
sesterces he owed to Caesar on the eve of the civil war (cf. supra p. 124). Young
politicians, like Caesar, may have turned to political magnates for financial support
only as a last resort – in Caesar’s case when his creditors refused to allow another
remission of a year.

b) War credits.

The civil wars of the Late Republic were largely private affairs, and although
cities and provinces were forced to contribute over and above the ordinary taxes they
paid, the generals were always short of funds. In order to raise sufficient cash they
borrowed heavily from allies, friends and relatives. During the civil war between
Caesar and Pompey, Cato the Younger borrowed from his ward Lucullus, the son of
Lucullus Ponticus666, while Pompey borrowed at least 1 million sesterces from
Cicero.667 Brutus Albinus relied heavily on his friends to support the seven legions he
commanded in the struggle against Antony. These friends in turn borrowed money to
assist Albinus.668 Given the unpredictabilities of war, it is hardly surprising that we
find no indication that professional money-lenders ever lent money to any of the
warfaring parties.

c) Luxuria.

It seems unlikely that the debts of young aristocrats like Caelius Rufus669, Q.
Cicero filius.670 or Cornelius Dolabella671 had any direct

666
CICERO, Att. XIII, 6, 2; SHATZMAN (1975), p. 394.
667
CICERO, Fam. V, 20, 9; Att. XI, 1, 2; 2, 3; 3, 3; 13, 4.
668
CICERO, Fam. XI, 10, 5.
669
CICERO, Cael. 17; SHATZMAN (1975), p. 311-313.
670
CICERO, Att. XIII, 42, 1; XV, 21, 1; 26, 1; XVI, 1, 6.
671
CICERO, Fam. II, 16, 5; DIO XLII, 29; QUINTILIAN, Inst. VI, 3, 99; SHATZMAN (1975), p.
331-332.

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154

connection with their political careers. ‘La jeunesse dorée’ of Late Republican
Rome was famous for its extravagance, wantonness and dissipation.672 A number of
heavily indebted noble women were reproached on these accounts. Sempronia, wife
of D. Brutus (consul in 77) and mother of Brutus Albinus, is said to have become
involved in the conspiracy of Catiline because she could no longer pay the debts she
had incurred to pay for her debauchery.673 At the trial of Fonteius, Cicero accused the
mother of the prosecutor, M. Plaetorius Cestianus, of having squandered her
patrimony, leaving her son nothing but debts.674 Many years later, when he divorced
his wife Terentia, Cicero accused her of incurring heavy debts to support her
excessive life-style.675
It is impossible to assess the degree to which the reproaches made against some
adolescents and women were merited. Clearly, however, the life-style expected from
a Roman senator and his family demanded a considerable amount of conspicuous
consumption.676 Plutarch relates how Antonius Creticus incurred heavy debts to
support the generosity that he liked to show his friends.677
We have no example of loans made to finance excessive conspicuous
consumption that could be construed as given for the sake of ‘friendship’.678 The
only exception would be Q. Cicero trying to borrow money from Atticus in 45 in
order to be able to celebrate his son’s election to Lupercal. However, not only did
Atticus refuse to lend the money, he was also – as young Quintus’s maternal uncle –
a very close relative by blood who could be expected to be exceptionally generous on
such an occasion, since it would enhance his own glory and that of his family.679

672
Cf. ROYER (1967), p. 201-204; SCHNEIDER (1974), p. 209-210.
673
SALLUST, Cat. 24-25; MÜNZER (1923).
674
QUINTILIAN, Inst. VI, 3, 51.
675
PLUTARCH, Cic. 41.
676
CF. FINLEY (1973), p. 53. See also PARKINS (1997), p. 91-92; SHATZMAN (1975), p. 94-96;
SCHNEIDER (1974), p. 185-205.
677
PLUTARCH, Ant. 2, 3; CICERO, Phil. II, 44-45.
678
It is true that the purchase of lavish houses (like Cicero’s house on the Palatine hill) and suburban
villas were alternative forms of status related expenses, but unlike expenses for ‘conspicuous
consumption’ purposes, purchases of real estate were generally approved. Cicero’s purchase of his
domus palatina was condemned because P. Sulla, whom he defended in court, financed it (cf. infra on
the case).
679
CICERO, Att. XII, 5.

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d) Purchases.

It seems to have been a common practice to finance important purchases with


loans. Property purchases, for instance, were quite commonly financed by this
means. Even businessmen specialised in property (at least at the time of Caesar’s
proscriptions) appear to have relied heavily on credit. Horace’s Damassipus
‘Mercurialis’ is said to have financed his real estate business by means of loans from
faeneratores at the Ianus medius.680 When Cicero wants to demonstrate the iniquity
of debt remissions in his De Officiis, he exclaims: ‘What is the true object
(argumentum) of debt remissions if not that you could buy an estate with my money;
that you would have your estate, but I would not have my money?’681
Heraclides from Temnos borrowed money from one Sex. Stloga in order to buy an
estate in Cymae. We do not know whether or not the two men were amici, but the
fact that Heraclides borrowed money at interest from the Fufii brothers to repay
Stloga indicates that the loan from Stloga was a mutuum.682 On a much more modest
scale, we find Volteius Mena the auctioneer borrowing 7000 sesterces (free of
interest ) from his patron Philippus in order to buy a farmstead.683
When Cicero wanted to buy his Palatine house and the money promised by P.
Sulla and Antonius Hybrida was not forthcoming, he considered borrowing from
faeneratores among whom were Q. Caecilius (Atticus’s maternal uncle), his friend
Q. Axius, Lentulus Spinther’s friend Q. Selicius and the senator Q. Considius.684
Valerius Messalla Niger (consul in 61) also borrowed from his amici to buy the
Palatine house of Autronius Paetus.685
About the same time, Cicero was deeply in debt because of purchases made to
decorate his villas. In a letter to Atticus, Cicero describes these debts as aes
circumforaneum. Since the term ‘circumforaneus’

680
HORACE, Serm. II, 3, 18. See also VERBOVEN (1997b).
681
CICERO, Off. II, 84: Tabulae uero nouae quid habent argumenti, nisi ut emas mea pecunia
fundum, eum tu habeas, ego non habeam pecuniam?
682
CICERO, Flacc. 46-50. On Stloga see MÜNZER (1929).
683
HORACE, Epist. I, 7, 46-95. On borrowing to pay for purchases of land see also Dig. XIV, 1, 4
and see VERBOVEN (1997a), p. 48.
684
CICERO, Att. I, 12, 1; Fam. V, 5, 2. See also Att. I, 13, 6; 14, 7 and cf. supra p. 126. On Sulla’s
financial help see GELLIUS XII, 12. Formally Sulla’s (and probably Antonius’s) financial support was a
loan as well. In reality, however, the money was never meant to be paid back (cf. supra p. 123).
685
CICERO, Att. I, 13, 6.

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applies to things bought and sold on the market (on the forum), Andreau concludes
that the aes circumforaneum also refers to money borrowed on the market, i.e. loans
contracted from professional money-lenders (faeneratores) frequenting the forum in
search of borrowers.686
It seems, therefore, that amici could be expected to lend money either free of
interest or at a moderate interest rate to finance important property purchases.687 In
the case of Messalla Niger’s house and his own domus Palatina, Cicero explicitly
interpreted and justified such financial aid as help to achieve or maintain a position
of dignitas.688 Yet when no funds from friends were available, a prospective buyer
could easily turn to professional faeneratores to provide the necessary wherewithal.

e) Building projects.

We have already seen that Aemilius Paullus and Faustus Sulla became deeply
indebted on account of the expenses they incurred rebuilding the Basilica Aemilia
and the Curia Hostilia. We classified these debts as ‘political’ because of the public
nature of the buildings in question. However, private building projects could also be
financed with loans. When P. Clodius destroyed Quintus Cicero’s house, Quintus
turned to his brother-in-law Atticus for a loan.689 In the years that followed Quintus
contracted more debts in order to be able to expand and embellish his villas in
Arpinum and to improve their water supply. He repaid these debts with the money he
made as a legate of Pompey in Sardinia and of Caesar in Gaul.690
Atticus’s financial support qualifies as a beneficium expressing solidarity in times
of crisis and was, therefore, presumably free of interest. Clearly, however, the debts
contracted to improve and embellish Quintus’s properties in Arpinum served a
different purpose that could not be construed as creating a moral obligation to help.
Unfortunately, we do

686
ANDREAU (1987), p. 708. However, we should not exclude the possibility that the term simply
refers metaphorically to debts contracted when buying res circumforaneae, i.e. movables. Note also that
according to a late commentator on Horace circumforani were clients of argentarii at auctions (PS.-
ACRO, in Hor. Serm. I, 6, 85-86, see ANDREAU (1987), p. 657).
687
See also Pliny the Younger, who counted on his mother in law to advance him the money needed
to buy an estate adjacent to one he already owned (PLINY, Epist. III, 19, 8). Also Dig. XII, 1, 4.
688
CICERO, Att. I, 13, 6.
689
CICERO, Q. fr. II, 2, 1-2.
690
CICERO, Q. fr. II, 15b, 2-3.

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not know the origin of these debts or the personal relations Quintus may have had
with his creditors.

f) Repayment of debts.

It was not uncommon in ancient Rome for debts to be repaid with new loans. Latin
even had a distinct word for such loans: uersura. The debts that were repaid by
uersurae were not always the result of previous loans. Purchases on credit or dowry-
obligations could be met by uersurae as well. However, a uersura was almost by
definition a loan at interest contracted from specialised money-lenders while the
obligation to help friends and relatives repay their debts was a strong moral
obligation that gave rise to gifts and interest-free loans. In many such cases, the
difference between gifts and loans was slight.691
The most conspicuous instances of loans to repay debts were politically motivated.
Caesar repaid the previously mentioned debts of Scribonius Curio692, Marc Antony693
and Aemilius Paullus.694 As I have indicated, we cannot be sure whether Caesar’s
interventions consisted of gifts or loans, although his reputed strategy of binding
allies by giving them interest-free or cheap loans would argue in favour of the latter.
Antony may have resorted to the same stratagem when he offered to pay young
Quintus Cicero’s debts to the amount of 400,000 sesterces.695
Curio’s father ended up paying the six million sesterces owed by Marc Antony for
which his son had stood surety. According to Cicero, Curio filius was Antony’s lover
at the time.696 Cicero agreed to pay Tullius Montanus’s debt to the state because he
felt it was his duty to do so (pertinet ad nostrum officium). However, when the time
came for Montanus to pay up, the money promised by Cicero was not available
because his steward (dispensator) Eros had neglected to set the money aside and
Montanus was forced to borrow at a very high interest rate from some faeneratores.
Cicero was very much embarrassed and entreated Atticus to

691
Cf. CICERO, Off. II, 55; PLUTARCH, Rom. 13, 6. See also supra p. 74.
692
PLUTARCH, Pomp. 58, 1; VELLEIUS PATERCULUS II, 48, 3-4; LUCANUS I, 269;
APPIAN, B.C. II, 26; DIO XL, 2; SHATZMAN (1975), p. 396.
693
CICERO, Phil. II, 4; PLUTARCH, Pomp. 58, 1; SHATZMAN (1975), p. 297-304.
694
PLUTARCH, Caes. 29, 3; Pomp. 58, 1; SUETONIUS, Iul. 29, 1; APPIAN, B.C. II, 26; DIO XL,
63, 2; SHATZMAN (1975), p. 289-290.
695
CICERO, Att. XV, 21, 1.
696
CICERO, Phil. II, 42; 45; PLUTARCH, Ant. 2, 3. It would seem that Antony had inherited the
debts from his father. Curio probably stood surety for a renewal (nouatio) off these debts.

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repay Montanus’s creditors as soon as possible.697 Sex. Naevius offered his partner
in business and relative by marriage P. Quinctius to repay a debt he owed to the
children of a certain Scapula.698
I have already discussed the important officium amicitiae to support a friend’s
credit and I have mentioned the trivial difference between gifts and loans in this
connection (cf. supra p. 74). However, not all loans incurred to pay debts came from
friends or relatives. The case of Tullius Montanus is illustrative in this respect. In 51,
Cicero instructed Atticus to arrange a uersura for him to repay his debt to Caesar.699
In 44, Atticus was again commissioned to arrange a loan (undoubtedly at interest) of
200,000 sesterces for a period of 5 months.700 When he left Italy in 44, Cicero asked
Balbus to keep an eye on his accounts and to intervene financially if necessary to
cover debts.701
Heraclides from Temnos repaid his debt to Sex. Stloga by borrowing at interest
from C. and M. Fufius.702 The word uersura itself is indicative of how common it
was to borrow at interest to repay other debts. Although the word originally meant
‘the borrowing of money to pay a debt’ it soon acquired the more general meaning of
a ‘loan at interest’ (as opposed to mutuum).703

g) Dowries

We have already seen that assistance in paying the dowries of the daughters of
one’s friends was traditionally considered an important duty of friendship. However,
when I discussed the role of gifts in Roman friendship and patronage we saw that we
have no concrete examples from the Late Republic of Donations made to provide
dowries for the daughters of amici. Given the close connection between mutua and
Donations it is hardly surprising that we have no unambiguous examples either of
loans given or debts made to provide for dowries. The only exception is the case of
Tullia. In 48-47, Cicero had great difficulties in delivering the second instalment of
his daughter’s dowry and he appealed to Atticus

697
CICERO, Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6; XV, 2, 4; XVI, 15, 5-6; 24, 1.
698
CICERO, Quinct.15-20. On Naevius and his relation with the Quinctii see Cicero, Quinct. 16; 25;
NICOLET (1966-1974), p. 998-999; MÜNZER (1935).
699
CICERO, Att. V, 1, 2.
700
CICERO, Att. XV, 15, 3; 17, 2; 20, 4; XVI, 2, 1-2; 2, 5; 6, 3; 7, 6; 15, 5-6; Fam. XI, 29, 3.
701
CICERO, Att. XVI, 3, 5.
702
CICERO, Flacc. 46-50.
703
Cf. MASELLI (1986), p. 179-181 (‘debito oneroso’); FRÜCHTL (1912), p. 49-51.

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for help. Thanks to an unexpected inheritance that Cicero received, Atticus


managed to arrange the matter so that the instalment was properly paid, but we may
infer from Cicero’s letters to Atticus concerning the case that both men took it for
granted that Atticus would advance the money if necessary.704 An interesting passage
in Terence’s Phormio shows that when money had to be borrowed for a dowry,
interest bearing loans were only considered when interest-free loans could not be
found.705

h) Emergencies and crisis.

Emergency loans were often Donations rather than loans. Whether or not the
money was paid back depended on the debtor’s recovery. While he was in exile,
Cicero received financial support from his brother Quintus, from Atticus, Rabirius
Postumus, Ateius Capito and others whose names we don’t know.706 We classified
this support as gifts and discussed it accordingly in our previous chapter, but at least
in the case of Quintus we know that Cicero was afterwards at pains to repay his
brother and tried to do so by borrowing from his amici.707 The money Cicero
received from Atticus’s bailiff in Greece in 49-48 is referred to as a loan, but given
the precariousness of Cicero’s situation we can assume that it was at least potentially
a gift.708 About the same time, Cicero borrowed 30,000 sesterces from his old friend
Cn. Sallustius, who was with him in Pompey’s camp.709
Atticus had a reputation for helping friends in need with gifts and interest-free
loans. We have already seen that he gave money to C. Marius the younger to help
him escape from Sulla, and also to Brutus in 44 to escape from Antony. In 44, he lent
money without interest to Antony’s wife, Fulvia.710

i) Bribery

A special category of debts were those contracted to bribe officials. According to


C. Cornelius, tribune of the plebs in 67, cities and communities

704
CICERO, Att. XI, 2, 2; 3, 1; 4a; 25, 3; 23, 3; XII, 5c.
705
TERENCE, Phorm. 299-301.
706
CICERO, Att. IV, 2, 7; Fam. XIII, 29, 2; XIV, 1, 5; 2, 3; Q. fr. I, 3, 7; Att. IV, 3, 6; Rab. Post. 47..
707
CICERO, Att. IV, 3, 6.
708
CICERO, Att. XI, 13, 4.
709
CICERO, Att. XI, 11, 2; 13, 4.
710
For the gifts to Marius and Brutus see NEPOS, Att. 2, 2; 8 and cf. supra p. 83. For Fulvia see
NEPOS, Att. 9, 4-5.

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all over the Mediterranean were oppressed by the debts they had to contract each
time they sent an embassy to the senate to pay for the ‘gifts’ that influential senators
expected in exchange for their support.711 Cornelius’s attempts to push through a
senatorial decree forbidding loans to foreign embassies failed but later the same year
or, perhaps, in 58, A. Gabinius (as tribune of the plebs or as consul) succeeded in
pushing through a law to the same effect.712
Cicero’s Verrine orations perfectly illustrate the corruption of the Late Republican
government. Verres is said to have demanded money for public contracts,
judgements, decrees and special clauses in his praetorian Edict.713 St. Oppianicus
allegedly bribed the triumuir capitalis Q. Manlius to escape accusation in the murder
of Asuvius.714 In his trial for the attempted murder of Cluentius, Oppianicus tried to
buy a majority of the jury with help from a certain Aelius Staienus, who had accepted
a similar bribe before in a case against Safinius from Atella. Oppianicus’s prosecutor
A. Cluentius bribed the jury in his turn. Apparently, Cluentius offered more and
Oppianicus was convicted.715
These are merely a few examples. The list of known bribery cases is much
longer.716 What is interesting for our subject, however, is that at least in a number of
cases the money in question was borrowed.
A notable from Halaesa, Q. Caecilius Dio, who was a client of Q. Mettellus
Creticus, borrowed 1 million sesterces to bribe Verres in order to persuade him to
acknowledge an inheritance that Dio’s son had received.717 We don’t know where
Dio got his loan, but Verres had set up a scheme in Sicily to finance his own bribes
using the 12 million sesterces the senate had voted him to buy extra grain for Rome.
The money was deposited with the tax company responsible for collecting the port
dues and taxes on grazing in Sicily (the societas scripturae et sex publicorum). L.
Carpinatius, who was promagister of the company, lent the money at 24% interest on
Verres’s behalf.718

711
ASCONIUS, Corn. 50-51 (ed. Clark); VERBOVEN (1993b), p. 293-294.
712
CICERO, Att. V, 21, 2; VI, 2, 7. On the lex Gabinia see BONNEFOND (1984); BONNEFOND
(2000), p. 333-347; BROUGHTON (1937); NICOLET (1971b), p. 1221; BARLOW (1978), p. 185.
713
Cf. CICERO, 2 Verr.I, 104-154.
714
CICERO, Clu. 36-39.
715
CICERO, Clu. 59-81.
716
Cf. SHATZMAN (1975), p. 54-55, 67-68, 1-82, 88-90.
717
CICERO, 2 Verr.I, 27-28; II, 19-24.
718
CICERO, 2 Verr. II, 169-170; 186-189; III, 163-187.

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161

Crassus is thought to have bought the judges in the Bona Dea case against P.
Clodius. We don’t know whether this was a gift or a loan to Clodius, but given
Crassus’s reputation for binding his allies with cheap loans, the latter is more
likely.719
A spectacular story of bribery financed by loans is that of the Egyptian king
Ptolemy XII Auletes. He bought his recognition as king from the senate with a bribe
of 6000 talents to Caesar, Crassus and Pompey. When the Egyptian people expelled
him he returned to Rome where he again borrowed heavily to bribe influential
senators to support his return to Egypt manu militari. Finally, he succeeded in
convincing Caesar, Crassus and Pompey again with a new bribe of 10,000 talents
(240 million sesterces) to put him back on the throne. Nevertheless, at least part of
the bribe was already paid in 56. The loans were organised by Rabirius Postumus,
who reportedly lent not only much of his own money at interest to the king, but also
that of his amici.720
Although the need for loans to finance bribery could be politically manipulated –
as we saw happening perhaps in the case of Crassus and Clodius – we have no
indication that money for bribes normally came from amici. On the contrary, we see
that the need for bribes created a lucrative ‘market’ for faeneratores. At least a
majority of the loans involved must have come from professional money-lenders.

j) Travel and ‘accommodation’ expenses.

Travel in the Ancient World was slow and expensive. In some cases, borrowing
the necessary money was inevitable. The commonly referred

719
Cf. WARD (1977), p. 205-209. Against the identification of Crassus see TATUM (1999), p. 82-
85. Cf. also supra p. 144 on the case.
720
CICERO, Rab. Post. 4-6, 25, 39. On C. Rabirius Postumus see now esp. SIANI-DAVIES (1996);
also DESSAU (1911); SHACKLETON BAILEY (1976), p. 33-34, 127; NICOLET (1966-1974), p.
1000; DENIAUX (1993a), p. 490-492; BROUGHTON (1951-1986) II, p. 612, Supp. p. 80, 181. Bürge
believes that Rabirius acted as a henchman for Caesar and Pompey turning the bribe Ptolemy paid into ‘a
loan’ (BÜRGE (1980), p. 136-137). However, (1°) Postumus had a background in ‘international’ finance
as a publicanus and faenerator. (2°) Cicero refers to creditores in a letter to Lentulus Spinther (Fam. I, 1,
1) and (possibly) in a letter to Trebatius Testa (Fam. VII, 17, 1) (3°) The facts of the particular case are
beside the point, what matters is the veracity of the picture painted by Cicero, which had to be persuasive
enough to convince the jury to absolve Postumus. On the whole affair see CICERO, Vat. 25; Att. II, 9, 1;
26, 2; Fam. I, 1, 1-2; 2, 1; 3, 2-4; 4, 1; 5a, 2; 5b; 6, 7; 7, 3; 9, 7; VII, 17, 1; Q. fr. II, 2, 3; 3, 1-4; 4, 4-6; 8,
2; 10, 2; Cael. 23-24, 51-52; CICERO, Har. Resp. 34; DIO XXXIX, 12, 3; 13-16; 49; PLUTARCH,
Caes. 48; Cat. 35; Pomp. 48-49; STRABO, 17, 1, 11; SUETONIUS, Iul.54, 3; TACITUS, Dial. 21;
CAESAR, B.C. III, 107, 6. See also SIANI-DAVIES (1997); SHATZMAN (1971); BADIAN (1968), p.
73-74; CRAWFORD (1985), p. 206-207.

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to example is that of Cicero in 49, who needed money to leave Italy and join
Pompey’s army in Greece. Caesar’s invasion had caused a complete breakdown of
the financial markets and money was hard to find. Cicero tried to get the money from
the Oppii from Velia, who had dealings with Terentia and who had some connection
with Atticus. Most commentators on Cicero interpret the Oppii as bankers to whom
Terentia owed money that she could not repay because of the financial crisis. Cicero
would then have applied for a new loan. However, the passages informing us about
the affair are ambiguous and I try to show elsewhere721 that they make much more
sense if we assume that the Oppii owed money to Terentia they could not repay and
that Cicero counted on their repayment to cover his travel expenses.722
A more interesting case is Tiro’s stay in Patrae. Cicero’s favourite freedman and
secretary had accompanied him to Cilicia in 51-50, but fell sick on the return voyage
in Patrae, where Cicero and his companions stayed with the Roman businessman M’
Curius. Curius was a cliens of Atticus and had been recommended by him to Cicero.
He used the occasion to ingratiate himself with Cicero by including him in his will
for a small share. Of course, Tiro was welcome to stay longer and Cicero asked
Curius to advance the money needed to pay Tiro’s doctor. We may surmise that
Cicero in fact relied on Curius’s hospitality and amicitia to advance the money,
which he would then pay back to Curius’s representatives in Rome. When Cicero
learned afterwards that Tiro had borrowed money from other people in Patrae, he
wrote to Atticus saying that he hoped that Tiro’s bashfulness was to blame and not
stinginess (illiberalitas) on Curius’s part. The implication is quite clear: Curius’s
duties as friend and host included advancing Tiro the money required.723

k) Productive loans

Before starting our survey of attested productive loans, it is good to define clearly
what the term implies. As Millett rightly notes, the ‘productive’ quality of a loan
refers to the purpose for which it is used. Therefore, although by definition all
interest-bearing loans produce an income for the creditor, not every interest-bearing
loan is ‘productive’. On the other hand, an interest-free loan can be used for
productive purposes

721
VERBOVEN (2000a)
722
CICERO, Att. VII, 13, 5; 13a, 1; 22, 2; 26, 3;VIII, 7, 3; X, 4, 12; 7, 3.
723
CICERO, Fam. XVI, 9, 3; Att. VIII, 6, 5. On Curius’s relation with Cicero and Atticus cf. infra.

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163

by the borrower and, therefore, an interest-free loan might be ‘productive’. In


short, a loan is productive in a technical sense when and only when the money is
used to increase or sustain economic production, including the production of services
such as those provided by merchants.
We should note that although the interest-bearing aspect of loans is irrelevant in
determining their productive aspect, a loan may rightly be termed productive when it
is extended to a financier or a banker who will subsequently use the money to extend
a non-productive loan at a higher rate of interest. The first loan is productive because
it supports the enterprise of the financier or banker (producing financial services); the
second is not because it does not increase or sustain economic production.724 Thus
the loans extended to, for instance, P. Sittius constitute productive credit while the
loans extended by P. Sittius to the king of Mauretania do not.
This definition is larger than some more ‘modern’ definitions that focus more on
investment credits, which may be defined as credits contributing to the capital
formation of enterprises. Such ‘investment credits’ played hardly any significant role
in the Ancient World and they continued to be rare until the nineteenth century, well
after the first industrial revolution had taken off. It would be pointless to use the
concept of productive credit in this sense for the ancient economy.725
One further specification may be useful. Pleket argues that money lent by peasants
to replace broken tools could be regarded as productive credit because although it did
not increase agricultural yield, it was essential to sustain production. Millett rejects
Pleket’s assertion because it implies changing ‘the terms of reference away from the
capitalist conception of productive credit’. The hypothetical peasant may have taken
out the loan to be able to continue producing the food he needed to survive, but he
did not take out the loan in order to increase his marketable production. In other
words, his action was not economically motivated and therefore the concept of
productive credit does not apply.726
I agree with Millet that the distinction is important, although I still believe that the
term ‘productive credit’ sensu largo is useful to distinguish loans to support or
increase non commercialised production from loans used for consumption purposes
or status expenditure. Nevertheless, in these pages I will adhere to Millet’s
conception.

724
See MILLETT (1991), p. 229-232.
725
See ANDREAU (1999), p. 151.
726
PLEKET (1971), p. 434; MILLETT (1991), p. 230.

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In this perspective ‘productive credit’, therefore, applies only to market situations.


To what degree did commercial enterprises and projects depend on credit and where
did this credit come from? Research on the archive of the Sulpicii found in Pompeii
clearly shows that the trading community of Puteoli enjoyed credit facilities of the
order of several tens of thousands of sestertii and more.727 Seneca asserted that a man
who wanted to do business had to be willing to incur debts.728 Horace’s Damasippus
‘Mercurialis’ was a dealer in real estate and art whose business depended on the
money-lenders at the Ianus medius (the heart of Roman finance).729 The Late
Republican jurist A. Ofilius discussed the case of a ship’s captain (magister nauis)
borrowing money to repair his ship without the express authorisation of his master
(exercitor).730 So at least the Italian businessmen depended to a considerable degree
on credit facilities offered by professional or semi-professional financiers.731
This brings us to men like C. Vestorius, Cluvius from Puteoli, Rabirius Postumus,
P. Sittius, L. Egnatius Rufus, Q. Caecilius, M. Tullius the scriba and T. Pinnius,
whom we know acted as financial intermediaries. They belonged to what Andreau
calls the ‘intermédiaires de crédit’ and played an important role as middlemen
between the aristocracy (with its vast fortunes) and the rest of society. They had good
contacts with the elite and in a number of cases we can establish amicitiae between
them and their aristocratic ‘customers’.732 As already mentioned, Cicero described
the relation between Rabirius Postumus and his financiers as one of amicitia.
Cluvius, Vestorius, Tullius the scriba and Egnatius Rufus were amici of Cicero and
his brother733, Vestorius also (mainly) of Atticus.734

727
CAMODECA (1992); CAMODECA (1994); CAMODECA (1999); BOVE (1984); ANDREAU
(1995b); VERBOVEN (2000b)
728
SENECA, Epist. 119, 1: Vt negotiari possis, aes alienum facias oportet.
729
HORACE, Serm. II, 3; 18-26; 69-76; PORPHYRIO, in h. l.; PS.-ACRO, in h.l. For the Ianus
medius see ANDREAU (1987), p. 334-335, 707-708; ANDREAU (1999), p. 136-137; FRÜCHTL
(1912), p. 11-12; BARLOW (1978), p. 199; NICOLET (1985), p. 819; VERBOVEN (1993a), p. 76-77.
On Damasippus (undoubtedly to be identified with P. Licinius Crassus Iunianus Damasippus or his son)
see VERBOVEN (1997b).
730
Dig. XIV, 1, 1, 9. More generally see ibid. 8-11; Dig. XIV, 1, 7.
731
See also ANDREAU (1999), p. 148.
732
ANDREAU (1985), p. 373-410; ANDREAU (1983); ANDREAU (1978); BÜRGE (1987), p.
488-500; RAUH (1986).
733
Tullius the scribe: CICERO, Att. VIII, 11b, 4; SHACKLETON BAILEY (1965-1970) III, p. 194-
195; Vestorius: CICERO, Att. IV, 14, 1; 16, 4; XIII, 45, 3; Cluvius instituted Cicero heir to a
considerable part of his property (cf. infra); Egnatius: CICERO, Fam. XIII, 43, 1; 45; 47; 73; 74.
734
CICERO, Att. IV, 16, 4; VI, 2, 3.

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165

Q. Caecilius was a protégé of Lucullus Ponticus735 and P. Sittius of P. Sulla.736


There were a number of different ways in which these intermediaries operated.
Rabirius Postumus borrowed money at interest that he subsequently lent out at a
higher interest rate. The difference between the interest rate he charged and the one
he had to pay himself determined his profit.737 Cicero claims that P. Sittius had
contracted debts in order to be able to do business (negotii gerendi studio (Sull.
58)).738 Augustus degraded some equites because they had borrowed money at a
moderate rate of interest in order to place it out at a higher interest rate.739 The loans
that these enterprising faeneratores-intermediaries took out clearly qualify as
productive credit, but what about the loans they extended?
There seems to have been a preference for loans to kings, peoples and cities, to
judge from what we know of Rabirius Postumus, T. Pinnius, P. Sittius and
Cluvius.740 However, did they also lend money to merchants and other
entrepreneurs? We do not know for sure, but we do know that at least some of them
were engaged in other business activities as well. Vestorius is known as the owner of
workshops in Puteoli producing caeruleum (a kind of blue dye for cloth).741 C.
Rabirius Postumus returned from Egypt on a ship laden with Egyptian glass, linen
and papyrus and he also seems have been engaged in the trade of luxury wines.742
The faeneratores at the Ianus medius who financed Damasippus’s real estate and
art business acted as intermediaries for the aristocracy. Cicero advised his readers in
the De Officiis to turn to the Ianus medius for financial advice.743 A commentator on
Horace asserts that the Ianus medius

735
VALERIUS MAXIMUS VII, 8, 5; NEPOS, Att. 5, 1
736
CICERO, Sull. 57.
737
See CICERO, Rab. Post. 39 and cf. supra p. 129.
738
Compare also DEMOSTHENES, Phorm. (XXXVI) 5: Pasion borrowed money out of
(see MILLETT (1991), p. 72-74).
739
SUETONIUS, Aug. 39, 1: pecunias leuioribus usuris mutuati grauiori faenore collocassent. The
practice could be highly profitable, cf. e.g. TPSulp. 69 (CAMODECA (1999), p. 167-168) where a profit
of 16.7 % is made on a similar deal.
740
Sittius: CICERO, Sull. 56-59; Pinnius: Fam. XIII, 61; Cluvius: Fam. XIII, 56.
741
Cf. D’ARMS (1981), p. 49-55; TCHERNIA (1968-1970), p. 51-82; ANDREAU (1983); RAUH
(1986), p. 18-19.
742
Cf. SIANI-DAVIES (1996), p. 218-220; DESSAU (1911); NICOLET (1966-1974), p. 1000;
DENIAUX (1993a), p. 259, 490-492. Note that the Egyptian wares were local royal monopolies
(SIANI-DAVIES (1997), p. 114).
743
CICERO, Off. II, 87.

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166

was the place where creditores and faeneratores met, some to ‘return’ interest (alii
ad reddendum (fenus)), others to place loans at interest (alii ad locandum fenus).744
Clearly not all faenerator-intermediaries limited themselves to lucrative but highly
risky usury overseas.
A last instance of productive credit viewed from a different standpoint can be
found for Q. Cicero. Quintus invested heavily in his Arpine estates between 56 and
53. Much of the expense went on the embellishment of the urban villas he owned
there and the purchase of new domains, but part was also invested in an aqueduct to
improve the irrigation of large tracts of meadowland. A road leading to one of the
estates was improved to facilitate access. Unfortunately, we do not know where
Quintus borrowed the money he needed.745
We have no examples of interest-free or cheap loans for productive purposes.
Insofar as productive loans were extended, they seem to have been interest-bearing.
Millett gives a plausible explanation when he asserts that ‘(relatives and friends)
would naturally look askance at the recipient of a friendly loan who took advantage
of their open-handedness for his own financial profit.’746
Nevertheless, it does not follow that creditor and debtor could not be linked by
amicitia. Cicero asserted that a homo liberalis assisted his friends in ‘acquiring or
increasing their belongings’.747 The case of Rabirius Postumus shows that the
argument could be used to persuade a jury indicating that it was not wholly
unrealistic.748 Cicero wrote at least one letter of recommendation for Cluvius from
Puteoli.749 M. Tullius scriba was Cicero’s scribe in Cilicia.750 Of course, these
‘business friendships’ did not necessarily transcend the level of calculated
instrumental alliances, but they did encompass an exchange of valuable unspecified
resources including recommendations, legal assistance, practical help in technical
matters, hospitality, information, and so forth. Although the amicitiae in question
were purely instrumental, they were not merely ‘social niceties’.

744
PS.-ACRO, in Hor. Sat. II, 3, 18.
745
CICERO, Q. fr. II, 15b, 2-3. On Quintus’s estates in Arpinum see Q. fr. II, 6, 4; 3, 1; Att. IV, 7, 3;
V, 1, 3; SHACKLETON BAILEY (1980), p. 203; SHATZMAN (1975), p. 426.
746
MILLETT (1991), p. 73.
747
CICERO, Off. II, 55: uel in re quaerenda uel augenda.
748
CICERO, Rab. Post. 4.
749
CICERO, Fam. XIII, 56.
750
See CICERO, Att. V, 4, 1; Fam. V, 20, 1-2; VIII, 11b, 4; XIII, 22, 4.

166
167

1.12 Motives of creditors.


However, in the world or credit, it takes two to tango. We have until now only
surveyed the purpose of loans from the viewpoint of the debtor and so our analysis is
still one-sided. Why and when did a Roman creditor agree to lend his money to
someone and how did considerations of ‘friendship’ play a role in his decision to
extend a loan?

a) Profit.

Faeneratio – lending money at interest – was a business and naturally aimed at


making a profit. At a moderate 6% interest the 15 million sesterces that Q. Considius
had out on loans in 63 would have brought in an annual 900,000 sesterces. If we
assume an interest rate of 12% (still reasonable in the light of the Catilinarian crisis)
it would have brought in 1,800,000 sesterces. This was more money than could be
made by agriculture and explains well enough why some wealthy Romans engaged
in money-lending at interest.

b) Masked gifts and payments.

The lex Cincia forbade gifts to non-kin exceeding a certain (unknown) value. We
have already seen that this law was aimed specifically at ‘gifts’ to lawyers and
orators. One way to bypass it law was to mask illegal gifts as ‘interest-free loans’,
which, of course, would never be repaid. The loan of 2 million sesterces P. Sulla
gave to Cicero in 62 is a classic example of such a case. The money Antonius
Hybrida promised in exchange for Cicero’s ceding him the province of Macedonia-
Achaea is probably another example.751

c) Gratia and fides.

However, why would a creditor show liberality to a debtor by giving him an


interest-free or cheap loan or by granting him a remission of debt? Gratia, both in the
sense of ‘gratitude’ and ‘influence’, seems to have played a major part. We have
already seen how political and military leaders used loans to gratify and bind their
supporters. Crassus showed the way and Caesar followed.752

751
On Sulla: GELLIUS XII, 12; CICERO, Att. I, 13, 6. On Antonius: Att. I, 12, 1; 13, 6; 14, 7; Fam.
V, 5, 2. On the lex Cincia cf. Supra p. 75-78
752
Crassus: SALLUST, Cat. 48, 5: plerique Crasso ex negotiis priuatis obnoxii; SUETONIUS,
Iul.27, 1: omnibus uero circa eum atque etiam parte magna senatus gratuito aut leui faenore obstrictis.

167
168

The effectiveness of this strategy is made clear by Cicero’s embarrassment over


the debt of 800,000 sesterces he owed to Caesar in 51-50: ‘it is unseemly to be in
debt towards a political opponent’, he wrote to Atticus shortly before the civil war
broke out.753 Accepting a free or cheap loan meant associating oneself with the
person who extended the loan. A loan could be offered and refused because the
person to whom the loan was offered did not wish to be put under an obligation
toward the one who offered it. Seneca, for instance, relates an anecdote about Iulius
Graecinus, who refused an interest-free loan from Paullus Fabius Persicus and C.
Caninius Rebilus because he did not wish to be associated with persons of such
infamy (infamia).754
Sometimes a debtor counted on the influence he had on someone to obtain a loan.
The creditor’s liberality was then an answer to the gratia he owed to his debtor.
Cicero’s loans to Axius’s son and to Tullius Montanus are examples of such
occasions.755 Perhaps we should add the financial help Cicero expected from Clodius
Hermogenes in 45.756 We may also note the arguments used by Cicero to persuade
Antonius Hybrida to deliver the money both men had agreed upon: ‘Were I to expect
the highest services (officia) from you, nobody should regard it with surprise. For
everything that might concern your interest (commodum), your honour (honor) and
dignity (dignitas) has come your way through me. That you have shown me no
gratitude (gratia) in return you are yourself the best of witnesses’757
Vestorius’s liberalitas towards Cicero in 54 shows that businessmen were
sensitive to the rules of gratia.758 Egnatius Rufus’s giving Quintus a loan to repay the
dowry of his ex-wife Pomponia (Atticus’s sister) provides

753
CICERO, Att. VII, 8, 5: Caesari et instrumentum triumphi eo conferendum; est enim
esse. On the role Caesar’s liberalitas played in his
relation with Cicero and his brother see BENOEHR (1986b).
754
SENECA, Ben.II, 21, 6.
755
Axius’s son: CICERO, Att. XII, 2; 13, 2; 15, 4; Montanus: Att. XII, 52, 1; 53; XIV, 16, 4; 17, 6;
XV, 2, 4; XVI, 15, 5-6; 24, 1; cf. supra p. 157-158.
756
CICERO, Att. XII, 25, 1; 30, 2; 31, 1-2. It is usually assumed that Hermogenes was a debtor of
Cicero, but this is inconsistent with the fact that Cicero asked for help and did not demand repayment.
The qualification adiumentum to describe Hermogenes’s intervention indicates that he was free to refuse
the money.
757
CICERO, Fam. V, 20, 2: Ego si abs te summa officia desiderem, mirum nemini uideri debeat.
omnia enim a me in te profecta sunt quae ad tuum commodum, quae ad honorem, quae ad dignitatem
pertinerent. pro his rebus nullam mihi abs te relatam esse gratiam tu es optimus testis.
758
CICERO, Att. IV, 6, 4; 16, 4.

168
169

another example.759 Whether these men showed gratia for services received (for
example letters of recommendation) or whether they tried to curry favour with a view
to future services (or both) is unclear.
Legally, a prospective creditor could always refuse a loan to a ‘friend’ or impose
strict conditions. But this could be construed as a violation of fides, which would
mean the end of the amicitia and the loss of the benefits and gratia derived from it.
From a purely pragmatic and tactical point of view, it could be more advantageous to
show liberalitas. As a rule of thumb – and reasoning only from a cynical utilitarian
viewpoint – the liberality shown would have been in accordance with the future
services that could be expected and, of course, weighed against the disadvantages
both symbolic and material of a reputation for ingratitude and lack of
trustworthiness.

d) Ostentation and euergetism.

Liberalitas could be shown for reasons of propaganda or image-building. A


reputation for financial liberality increased a creditor’s prestige.760 The remission
granted to his debtors by the senator and faenerator Q. Considius offers a typical
example of ostentatious liberality. It resulted in a senatorial decree in which public
thanks were offered. Considius’s reputation and political prestige were boosted. The
event was still remembered 90 years later when Valerius Maximus wrote his
Memorabilia and may have played a role in the career of Considius’s grandson, who
became praetor under Augustus.761 One of Martial’s epigrams berates a creditor who
bragged about the loans he extended to friends; his liberality was insincere and he
merely wanted to seem a magnus amicus.762
Euergetic loans to cities belong in the same category. Cornelius Nepos described
Atticus’s financial support of Athens as an expression of liberalitas.763 The honorary
inscriptions set up for the Cloatii by the city of Gytheion and for the Aufidii by the
city of Tenos immortalise the

759
CICERO, Att. XIV, 15, 5.
760
Cf. SALLER (1982), p. 121-122.
761
VALERIUS MAXIMUS IV, 8, 3. On his grandson (or grand-nephew): CIL VI, 31705; PIR2 no.
1280. See NICOLET (1966-1974), p. 848-849; SHATZMAN (1975), p. 328; DENIAUX (1993a), p.
482-484; WISEMAN (1971), p. 225-226.
762
MARTIAL III, 41.
763
NEPOS, Att. 2, 4; cf. MIGEOTTE (1984), p. 34-35. On euergetic loans in general see
MIGEOTTE (1984), p. 375-377.

169
170

financial beneficence they displayed towards the cities where they (as Romans)
resided.764
The practice continued under the Empire when several emperors extended
interest-free loans to live up to the liberalitas that was expected from them and that
played a central part in imperial propaganda.765 Augustus used money from
condemned criminals to extend interest-free loans to those who could offer security
to double the amount of the loan.766 Tiberius extended interest-free loans to solve the
credit crisis of 33 CE.767 Antoninus Pius regularly extended cheap loans before he
became emperor.768 Alexander Severus followed the example and included interest-
free loans to Rome’s poorest citizens.769

1.13 The role of reputation.


Debt-relations were never impersonal in the Ancient World. The social personality
of both financier and debtor was always at stake. Although money-lending was a
profitable business in ancient Rome, the only reference-frame generally used by
contemporaries was the set of values I have described as the ‘moral matrix of
friendship’. Events, actions and assertions were judged by the standards of liberalitas
(vs. auaritia), fides (vs. infidelitas) and gratia (vs. ingratia), and these determined
the fama (vs. infamia) of the persons involved.

a) The creditor’s side: liberalitas and avaritia.

As we have seen before, liberalitas was ‘the disposition from which the act of
conferring a beneficium (was) derived’.770 A friendly loan (mutuum) was a
beneficium, so giving mutua was naturally a form of liberalitas. Standing surety and
sustaining a friend’s solvency were other clear examples of liberalitas. Cicero
described the support of a friend’s

764
Cloatii: Syll. 748.Aufidii: IG XII, 5, 860. See supra p. 131.
765
On liberalitas in imperial propaganda see KLOFT (1970), p. 73-84. On interest free loans as a
form of imperial euergetism see VEYNE (1976), p. 483-487, 535-536; ANDREAU (1987), p. 238-239,
461-463; NICOLET (1971b), p. 1218; VERBOVEN (1993a), p. 98.
766
SUETONIUS, Aug. 41; DIO LII, 28, 3-4.
767
TACITUS, Ann. VI, 16-17; DIO LVIII, 21, 4-6; SUETONIUS, Tib. 48 (publica munificentia).
See infra on the crisis.
768
SHA, Ant. Pius, 2, 8.
769
SHA, Alex. Seu. 21.
770
MANNING (1985), p. 73; cf. supra p. 35-37 on liberalitas.

170
171

credit-worthiness (aes alienum suscipere amicorum) as a characteristic act of a


homo liberalis.771 Rabirius Postumus772 and Cn. Plancius773 showed their liberalitas
by standing surety for friends and fellow tribesmen. Cornelius Nepos considered
Atticus’s financial support of Athens an expression of liberalitas.774 Cicero described
the financial support that he received from his brother during his exile as a form of
liberalitas.775 Caesar upheld his reputation for liberalitas by saving Rabirius
Postumus from bankruptcy.776 Catiline claimed that he could count on Orestilla’s
liberalitas to satisfy his creditors if necessary.777 Plutarch illustrated Antonius
Creticus’s liberalitas ( ) with an anecdote about an interest-free loan (or
778
gift) to a friend. A virtual synonym of liberalitas was benignitas; according to
Cicero his friends had financed the campaign to recall him from exile out of
benignitas.779 Closely linked with liberalitas / benignitas was bonitas (goodness,
kindness).780 Rabirius Postumus’s father, the tax-farmer and businessman C. Curtius,
used the wealth he had acquired in business with such benignitas that it seemed that
‘in increasing his fortune he was not looking to procure spoil for his avarice but to
obtain an instrument for goodness.’781
Faeneratio – lending money at interest – had a bad reputation in ancient Rome
and was usually considered to be motivated by auaritia, liberalitas’s antipole.782
Cato compared faeneratio to murder and illustrated the bad name that – according to
the mos maiorum –faeneratores had in ancient times by pointing out that a
faenerator was traditionally condemned to fourfold the amount at stake (quadrupli),
whereas a thief was only condemned for double the value of the goods he had stolen

771
CICERO, Off. II, 55.
772
CICERO, Rab. Post. 4.
773
CICERO, Planc. 47.
774
NEPOS, Att. 2, 4.
775
CICERO, Att. IV, 3, 6.
776
CICERO, Rab. Post. 41. Cf. SIANI-DAVIES (1997), p. 336.
777
SALLUST, Cat. 35, 5.
778
PLUTARCH, Ant. 1.
779
CICERO, Att. IV, 2, 7.
780
Cf. CICERO, Quinct. 41; Rab.Post. 45; Off. II, 63.
781
CICERO, Rab. Post. 3: cuius in negotiis gerendis magnitudinem animi non tam homines
probassent, nisi in eodem benignitas incredibilis fuisset, ut in augenda re non auaritiae praedam, sed
instrumentum bonitati quaerere uideretur. On this man see now SIANI-DAVIES (1996), p. 209-214.
782
Cf. FINLEY (1973), p. 54-55; DUNCAN-JONES (1982), p. 21-22; BARLOW (1978), p. 197-
198; VERBOVEN (1993a), p. 80-83; BÜRGE (1980), 118-119.

171
172

(dupli).783 Seneca voiced the same opinion in the form of a rhetorical question:
‘what else are a lucrative loan and a ledger and interest than words belonging to an
unnatural way of making money sprung from human greed.’784 Plautus’s Curculio
compares faeneratores to pimps.785 C. Manlius’s letter to Marcius Rex – as it appears
in Sallust’s Coniuratio Catilinae – complains about the violence and cruelty of
money-lenders.786 Horace simply asserted that faeneratores put money above
virtue.787
The epithets listed in the Thesaurus Linguae Latinae under the lemmas fenus and
fenerator bear eloquent witness of the pervasive denunciation of lending money at
interest. Faeneratores display auaritia, crudelitas and impudentia and they were
acer, acerbus, auidus, cupidus, seuerus, durus, lucripeta and improbus. Interest was
iniquissimum, immensum, illicitum, copiosum, graue, iniustum or at best
tolerabile.788
Yet although in his famous classification of professions Cicero mentions
faeneratio among those to be avoided, he does not list it under the ‘illiberal and
sordid ways of making money’. Money-lending at interest was merely condemned –
together with tax-farming – because it arouses ill-will.789 The implication appears to
be that faeneratio was not illiberal in itself, but became so by the way in which it was
practised.790
It was quite common for debtors to repay late and creditors were expected to be
flexible about this.791 Considius admitted to being a faenerator at the time of the
Catilinarian crisis, but proved his liberalitas by remitting debts to the amount of 15
million sesterces.792 Two other moneylenders, Q. Titinius and L. Ligus, followed
Considius’s example

783
CICERO, Off. II, 89; CATO, Agr. praef. 1.
784
SENECA, Ben. VII, 10: Quid foenus et calendarium et usura nisi humanae cupiditatis extra
naturam quaestus uerba?
785
PLAUTUS, Curc. 506-510. Compare also SENECA, Contr. IX, 1, 12 and MARTIAL XI, 66.
786
SALLUST, Cat. 33.
787
HORACE, Epist. I, 1, 52-59.
788
TLL VI (1912-1926), col. 475, 484-485. See also BÜRGE (1980), p. 118-119.
789
CICERO, Off. I, 150: Primum improbantur ii quaestus qui in odia hominum incurrunt, ut
portitorum, ut faeneratorum. Illiberales autem et sordidi quaestus mercennariorum omnium …
790
See also BÜRGE (1987), p. 175, n. 175; VERBOVEN (1993a), p. 80-83.
791
CICERO, Att. XVI, 2, 2: fit saepe ut ii qui debent non respondeant ad tempus. A common feature
also of the credit system prevalent in the Tenth and Eleventh century Mediterranean and related to a lack
of liquid means. See GREIF (1989a), p. 109, n. 41.
792
VALERIUS MAXIMUS IV, 8, 3.

172
173

in 49.793 In 45, Cato’s young son owed money to Piso Caesoninus who had
(probably) inherited the claim from a certain Herennius. Cicero and Atticus
negotiated with Piso to obtain a remission of payments. Piso reacted liberaliter and
promised to do nothing against the wishes of young Cato’s guardians.794 When
Appuleius demanded repayment from Cicero of a debt of Q. Cornificius for which
Cicero stood surety, Cicero did not worry because he knew that Appuleius was a
homo liberalis.795 Cicero himself asked Atticus to call on some debtors in 45 but
instructed him to be lenient.796
In other words, liberalitas was not only relevant when a debt was contracted, in
the sense that a creditor could lend money without interest or at a symbolic rate of
interest as a kindness (beneficium) towards the recipient, or in the sense that a homo
liberalis could stand surety for his friends or support their credit-worthiness.
Liberalitas continued to play a part as a standard by which to judge the creditor’s
behaviour until the debt was repaid.
Flexibility in contracts was an integral part of the concept of liberalitas. Cicero
warned his readers: ‘It will, moreover, befit (a homo liberalis) to be both generous in
giving and not harsh in exacting his dues and in all business deals – buying or selling,
letting out or renting – … to be fair and easy, yielding much of his rights to many,
and to abhor litigation as much as is permissible and perhaps even more than is
permissible.’797 Similarly, Cornelius Nepos praised Atticus because he had never in
his life taken anyone to court.798
Considius’s example shows how a faenerator could justify his actions by carefully
building and manipulating an image of himself as a homo liberalis.799 On the other
hand, we can deduce from the fact that faeneratio was readily associated with
auaritia that the majority of faeneratores did not respect the norm of liberalitas.
Valerius Maximus’s description of Considius’s liberalitas clearly indicates that
Considius’s generosity

793
CICERO, Att. VII, 18, 4.
794
CICERO, Att. XIII, 6, 2.
795
CICERO, Att. XII, 17.
796
CICERO, Att. XIII, 23, 3.
797
CICERO, Off. II, 64: Conueniet autem cum in dando munificum esse, tum in exigendo non
acerbum in omnique re contrahenda, uendundo emendo, conducendo locando, uicinitatibus et confiniis
aequum, facilem, multa multis de suo iure cedentem, a litibus uero, quantum liceat et nescio an paulo
plus etiam quam liceat, abhorrentem.
798
NEPOS, Att. 6, 3.
799
Cf. also CICERO, Rab. Post. 3.

173
174

was exceptional. Therefore, although liberalitas served as a standard by which to


judge the creditor’s behaviour, its effectiveness as a social norm could not be taken
for granted.
In a way amicitia served to activate the general norm of liberalitas in credit
transactions. Although Cicero had been unwilling to give Axius’s son a loan, he felt
he could not refuse it after Axius himself had asked him.800 When another of his
debtors, a certain Funisulanus, was unable to pay up, Cicero was vexed but because
Funisulanus was a friend of Atticus he ‘gave a more than liberal answer’.801 At the
same time liberalitas fortified amicitia and patron-client relations, and thus served as
an instrument to attach a debtor personally to his creditor. A debtor who experienced
liberalitas from his creditor became beneficio obligatus.802

b) The debtor’s side: fides, existimatio and infamia.

A debtor who contracted a debt committed his fides. Although the word had the
specific meaning of solvency when it was used in the context of debts, it never lost
its fundamental meaning of loyalty and dependability. In other words, the specific
‘contractual’ fides that we find in debt-relations remained indissolubly linked to the
more radical and general fides that was expected in personal relations. According to
Cicero, nothing kept the commonwealth together more strongly than fides, and fides
was impossible unless payment of debts was enforced.803 According to Aulus
Gellius, the reason why the Law of the Twelve Tables was so harsh on debtors was
that fides was considered the highest virtue in ancient Rome.804 Seneca asserted that
the maiores did not allow for extenuating circumstances on the debtor’s part in order
to support and promote fides.805 What matters here is not, of course, the veracity of
Seneca’s and Gellius’s assertions, but the principal unity of the concept of fides they
endorsed and the justification of this unity that they found in the presumed ancestral
customs – the mos maiorum.

800
CICERO, Att. X, 15, 4.
801
CICERO, Att. X, 15, 1: cumulate cum omnia tua gratia. The translation is from SHACKLETON
BAILEY (1965-1970).
802
See BÜRGE (1980), p. 148.
803
CICERO, Off. II, 84. See FREYBURGER (1986), p. 41-49 (see also p. 16: 11.5% of the
attestations of the term relate to debts); BARLOW (1978), p. 163-165, 269; FREDERIKSEN (1966), p.
128-129; VERBOVEN (1993a), p. 95-97.
804
GELLIUS XX, 1, 41. On the harshness of the Roman law on insolvent debtors see
FREDERIKSEN (1966).
805
SENECA, Ben. VII, 16, 3.

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175

Fides was itself indissolubly linked with existimatio or fama – reputation.806 In 48,
Cicero worried about the debts he had left behind. He counted on Atticus to preserve
his reputation (existimatio) as well as his property. Atticus’s could use the money
that Cicero had left behind in Ephesus (and which could be transferred to Rome by a
permutatio) to save Cicero’s fides.807 In 47, Cicero was relieved that his fides and
fama were saved by an unexpected inheritance.808 In 44, his existimatio was again at
stake because of the many debts he owed.809 When he was on the point of leaving
Italy, Cicero begged Atticus to help him overcome his financial difficulties and he
exhorted him to think of nothing but his friend’s reputation (fama).810 When Sex.
Naevius prosecuted P. Quinctius for non-payment of a debt, Cicero interpreted this as
an attack on Quinctius’s existimatio.811 A debtor who had been condemned for non-
payment not only lost his property, but also his fama and existimatio.812
We find the same connection in Caesar’s description of his own aestimatio-
arrangement, which allowed debts to be repaid by transfer of property estimated at
pre-war prices. The measure was meant to relieve the fides angustior and to preserve
the existimatio of the debtors.813
Tacitus used the same terminology to describe the financial crisis of 33 CE. When
the emperor Tiberius accorded a delay of 18 months for all moneylenders to comply
with the terms of the lex Iulia de modo credendi possidendique intra Italiam –
stipulating (probably) that at least two thirds of a man’s patrimony should be
invested in land and no more than a third in loans – a shortage of money resulted
because creditors all demanded immediate repayment of their outstanding loans. The
situation was aggravated by the fact that too much money had accumulated in the
imperial (fisco) and state (aerario) treasury, thus reducing the stock of money in
circulation (according to Tacitus). The emperor reacted by having the senate vote a
senatusconsultum stipulating that creditors had to

806
See FREYBURGER (1986), p. 47-49. See e.g. CAESAR, B.C. III, 1, 3; CICERO, Att. XI, 1, 1-2;
2, 3; XVI, 15, 5; Cat. II, 10, 18; SALLUST, Cat. 25, 11; TACITUS, Ann. VI, 17.
807
CICERO, Att. XI, 1, 1-2.
808
CICERO, Att. XI, 2, 3.
809
CICERO, Att. XVI, 15, 5.
810
CICERO, Att. XVI, 2, 2.
811
CICERO, Quinct. 73.
812
CICERO, Quinct. 50.
813
CAESAR, B.C. III, 1, 3.

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reinvest two thirds of the money of their loans in Italian land, while the debtors
had to pay back (only) two thirds of their debts immediately, thus granting them a
remission for the remaining third of their debt for probably the same term of 18
months. But the creditors demanded immediate repayment in full and the debtors did
not dare to appeal to the emperor’s concession because it would be dishonourable not
to live up to their fides (nec decorum appellatis minuere fidem). The price of land
collapsed because too much was thrown on the market by desperate debtors,
aggravating the crises even more and leading to the general collapse of private
fortunes destroying the dignitas and fama of the insolvent debtors. The emperor had
to intervene and distributed 100 million sesterces of interest free loans for a term of
three years to anyone who could offer security for double the value in land.814
A creditor could use the close link between fides and reputation as a way to exert
pressure by publicly denouncing a debtor who did not pay up. He could do so by
loudly and publicly demanding repayment (flagitare). The flagitatio was essentially a
form of popular justice that consisted in publicly and loudly denouncing a
wrongdoer. Usually, however, we find the practice attested as a response to the non-
payment of debts. The ‘root idea’ of the flagitatio is that of ‘bringing infamy’.815 To
receive a flagitatio was extremely embarrassing and injuring to one’s reputation.
Atticus – who was Cicero’s procurator at the time – had to undergo the humiliation
in Cicero’s place when Tullia’s creditors turned to him to demand repayment.816
The close link between credit and social credibility is not unique to the Roman
world. Mauss noted the association in his Essai sur le don and concluded that the
entire notion of ‘credit’ had originated from the necessary time-lag between gift and
counter-gift, during which the giver put

814
TACITUS, Ann. VI, 16-17. See also SUETONIUS, Tib. 48; DIO LVIII, 21, 4-6; WOLTERS
(1987); BELLEN (1976); ANDREAU (1986), p. 238-239, 461-463; THORNTON & THORNTON
(1990); RODEWALD (1976), p. 1-17. The remission of a third of the debt is disputed, but can be
inferred from Suetonius’s parafrase of the senatorial decree: ut faeneratores duas patrimonii partes in
solo collocarent, debitores totidem aeris alieni statim soluerent, and Tacitus’s words: sed creditores in
solidum appellabant, nec decorum appellatis minuere fidem. (Ann. VI, 17).
815
LINTOTT (1968), p. 9. See also NADJO (1989), p. 303-304; KELLY (1966), p. 22-23. See also
WEISS (1949) on the columnia Maenia where creditors published the names of debtors who could not
repay their debts.
816
CICERO, Att. XI, 7, 6. Tullia was still in potestate of her father, so her creditors would naturally
turn to him or to his procurator (in this case Atticus) for repayment.

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his trust in the recipient’s readiness to reciprocate. This meant that the notion of
‘credit’ was an offshoot from the norm of reciprocity, which – as we have already
seen – was itself bound up with honour and social prestige.817 Millett describes how
in ancient Greece the notion of credit gradually eased away from the purely informal
moral obligations connected with reciprocal exchange and crystallised into a concept
expressing the legally enforceable obligations of formal contracts. Characteristically,
however, the link with honour and prestige was never severed.818 Until the middle of
the seventeenth century the French word ‘crédit’ denoted ‘honour’ rather than
‘credit’. Credit and honour were closely connected in seventeenth century
Dauphiné.819 In eighteenth century France ‘credit assumed such importance that …
an eighteenth century person’s very reputation was bound up with his ability to
obtain loans – something implied by the very word “crédit”.’820 The entire credit
system of eighteenth century Buenos Aires as well rested on ‘le code de l’honneur et
les impératifs du prestige personnel d’agents qui interviennent à l’intérieur d’un
réseau.’821

c) Gratia.

Gratia was the disposition of gratitude and readiness to reciprocate that was
expected from a person who had received a gift or a favour (beneficium). In the
context of loans and debts, it was the response expected from a debtor to the
liberalitas shown by his creditor. This implies that gratia was not only expected in
the case of an interest-free loan (a mutuum), but also every time a creditor was
flexible towards his debtor. In other words, the gap between an interest-bearing loan
(faenus, uersura) and a beneficium was not unbridgeable.822 Naturally, sureties as
well were entitled to gratia. Cn. Plancius was gratiosus in his tribe because he had
stood surety for many of its members.823

817
MAUSS (1923-1924), p. 91-96. See also MICHEL (1962), p, 480-482.
818
MILLETT (1991), p. 36-44. Interest is thought to have been derived from the principle that the
value of a return gift in reciprocal exchange preferably exceeds the value of the original gift (MAUSS
(1923-1924), p. 107-108; MILLETT (1991), p. 44-52).
819
FONTAINE (1994), p. 1390. See also BÉAUR (1994); KETTERING (1986), p. 41-44.
820
HOFFMAN & POSTEL-VINAY & ROSENTHAL (1992), p. 294.
821
MOUTOUKIAS (1992), p. 902.
822
On the opposition between faenus and beneficium see CICERO, Fin. II, 115.
823
CICERO, Planc. 47.

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178

Gratia bound the debtor to his creditor in a much more radical way than a simple
legal obligation would. Default in a situation where gratia was owed not only
destroyed the debtor’s social credibility (fides); it branded him as an ingratus as well,
dealing an even more deadly blow to his reputation and social status (existimatio).
On the other hand, however, gratia could be used to exert pressure on either
creditor or debtor. Cicero was generous towards Funisulanus because Atticus
intervened on behalf of the latter.824 Brutus asked Cicero to exert pressure on the
people of Dyrrhachium – a city in Cicero’s clientela – so that they would repay their
debt to C. Flavius, who was an intimate friend of Brutus.825 We will discuss the use
of gratia-influence more fully later in this book.

1.14 The significance of amicitia to the Roman financial system.


According to Michel, we should beware of overestimating the practical
importance of interest-free or cheap loans. Outside the sphere of politics, such loans
would have become exceptional by Cicero’s time.826 Given the frequency of interest-
free loans in, for instance, Pliny and Martial this seems an overstatement. Saller does
not believe that there was any significant break between the Late Republic and the
Early Empire as far as loans between amici are concerned.827 Nevertheless, the
quantitative importance of mutua in the whole of the financial system should not be
overestimated. When we look at the reasons why amici extended interest-free or
cheap loans, we see that political reasons, emergencies and status affirmation or
enhancement predominate. As far as we can see, ‘ordinary loans’ for personal
consumption, purchases, private building projects or business activities, were usually
interest-bearing.
It would be a mistake, however, to locate the importance of amicitia to the
financial system exclusively in the possibility of obtaining interest-free or cheap
loans. This would presuppose an autonomous parallel circuit of credit between
‘friends’, unconnected with the larger circuit of commercial credit. In fact, we have
seen that amicitia was omni-present even in the case of commercial money-lending.
Interest-bearing loans

824
CICERO, Att. X, 15, 1.
825
CICERO, Ad Brut. XIV, 4. See also PLINY, Epist. VI, 8; SHERWIN-WHITE (1966), p. 363-
364; SALLER (1982), p. 122.
826
MICHEL (1962), p. 539. See also MASELLI (1986), p. 179-181
827
SALLER (1982), p. 120-122. See also PARKINS (1997), p. 86-87.

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were preferably asked from and extended to amici. Friends were expected to stand
surety for each other. A debtor’s credit and solvency largely depended on the friends
upon whom he could count to intervene in case of insolvency. Gratia could be used
to exert pressure on creditor or debtor. Via specialised amici large fortunes could be
lent out at interest.
Amicitia provided a source for free loans, but this was by no means the only part it
played in the financial system. It created situations of mutual trust behind all kinds of
loans. A person’s fides reflected the entire network of relations upon which he could
fall back either to repay a debt or to exert pressure.828 A direct fides-relation (in our
case an amicitia) between creditor and debtor provided the creditor with an extra
guarantee that his loan would be paid back. Failure on the debtor’s part to live up to
his obligation would be construed as a breach of fides that would jeopardise the
relationship in question and the benefits derived thereof. On the other hand, the
debtor could rely on the fides-relation to expect liberalitas from his creditor. A fides-
relationship thereby constituted an extra insurance for both creditor and debtor
without necessarily implying that the loans extended were free or carried merely a
symbolic interest charge. Amicitia protected a debtor from usury, not from moderate
interest rates. The fact that friends were expected to stand surety and support each
other’s credit and the fact that even interest-bearing loans were preferably asked from
and extended to friends illustrate the importance of amicitia in the availability of
credit.829
But even when no direct fides relation existed between creditor and debtor,
amicitia had a part to play. ‘Friends’ were expected to protect each other’s credit,
both by standing surety and by intervening when insolvency threatened. By doing so
amicitia not only upheld individuals’ credit rating, but actually supported the
financial system at large by providing it with a platform of trust upon which to
operate.
Finally, amicitia stimulated the flow of financial surpluses from the landed
aristocracy to the world of business because the members of the business-elite were
themselves linked with the aristocracy through

828
For the conceptualisation of personal networks in terms of capital and credit see also
BOISSEVAIN (1969), p. 383-386. See also MOUTOUKIAS (1992), p. 897: ‘le crédit dépendait de
“l’influence” de la personne, la continuité des opérations était assurée grâce aux fidélités engendrées à
l’intérieur du réseau de liens personnels par les marchands-fonctionnaires mentionnés.’ (cf. ibid, p. 901).
829
See BÜRGE (1980), p. 145. Also e.g. BENOEHR (1986b), p. 43; VERBOVEN (1993a), p. 84-
87.

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180

relations of amicitia. The scope of ‘investments’ in loans for the aristocracy was
considerably enlarged and the general mobility of cash was greatly enhanced thanks
to the services provided by specialised middlemen.
This brings us back to the problems of trust and anonymity with which we started
this chapter. We distinguished three ways by in which a financial system could
overcome these problems. The first consisted of the depersonalisation of debt-
relations and the creation of specific institutions to guarantee repayment. The second
relied on reciprocity relations between creditor and debtor. Non-repayment meant the
end of the reciprocity relation and the loss of social prestige and credibility. The third
rested on the existence of professions and organisations that depended on credit, in
which case a debtor was dissuaded from defrauding his creditor because it would
mean losing his job or going out of business.
Although there was a lively credit market in Late Republican Rome making use of
a developed system of contracts (relying on the first trust establishing mechanism)
and although there was a considerable degree of professionalisation among
faeneratores (relying on the third trust establishing mechanism when they acted as
financial middlemen), our survey has shown that this credit market left ample room
for amicitia. In an almost paradoxical way, the impersonal credit market depended
on the integration of debt-relations in personal networks of friends and relatives,
which established the necessary conditions of functional trust behind contracts.830
Moreover, reputation was an important factor in the working of the Roman financial
system and it too depended largely on the respect for the moral matrix of amicitia.
The slow and difficult circulation of information further complicated the problems
of trust and anonymity. Information moved at best with the speed of a horse by land
and a ship by sea. This information deficit offered opportunities to unscrupulous
merchants. Cicero relates the story of the Alexandrian merchant who arrived with a
cargo of grain in Rhodus while the city was suffering from a famine. The merchant
concealed the fact that a large convoy of Alexandrian vessels filled with grain was
following at a few days distance and sold his cargo at an exorbitant price.831 The
system of maritime loans (pecunia traiecticia, later known as faenus nauticum) was
very vulnerable to fraud. A merchant could sell

830
See also EISENSTADT & RONIGER (1984), p. 1-42.
831
CICERO, Off. III, 50-53; cf. DYCK (199), p. 556-562. See also GIARDINA (1992), p. 268-269;
VAN HOUDT (1997), p. 6-7; TOZZI (1961), p. 314.

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his cargo, but profess to his creditor that he had been forced to throw it overboard
in a storm to save his ship, in which case he did not have to repay his debt.832
Avner Greif showed that the Jewish Maghribi traders in medieval Cairo used
personal networks built on mutual trust to deal with the information problem. Access
to these networks was imperative to stay in business. A trader who defrauded was
effectively shut out.833 The Roman business elite seems to have had few alternatives.
The example of the permutationes shows that at least one crucial financial
instrument, without which no supra-local organisation could conceivably function
efficiently, depended on the availability of personal networks of amici.
We should stress that the complex system we see emerging from the debris of our
sources only slightly resembles what anthropologists have termed ‘the moral
economy’. The Roman credit market – fragmented and fragile as it may have been –
was nevertheless a self-regulating ‘market’. Although loans were preferably asked
from friends and relatives, they were not always obtained,834 while loans could be
extended to anonymous strangers through specialised intermediaries. We have bare
touched upon the role of the third trust establishing mechanism, ‘professionalisation’,
but clearly financial brokers and middlemen largely depended on the reputation for
reliability to operate. However, amicitia often lurked in the background, upholding a
debtor’s credit and serving as a strategic resource to exert pressure if necessary.
This peculiar system can be ascertained only for the highest levels of Roman
society. Nevertheless, patronage and brokerage at least had the potential of
penetrating into the lower regions of the economy. Cicero’s remark about the
argentarii who were ‘influential with all social classes’ is pertinent here.835 Various
persons from the Roman business elite figure prominently in the financial system I
have described. Cluvius, Vestorius, Rabirius Postumus, Egnatius Rufus and others
served as intermediaries for the aristocracy, whose money they invested in

832
Cf. ROUGÉ (1966), p. 345-360, 397-413. Compare the case of the publicani who played the
same trick on the Roman state during the second Punic war: Livy XXIII, 48-49; 25, 2-5; VALERIUS
MAXIMUS V, 6, 8; BADIAN (1972), p. 16-20.
833
GREIF (1989b); GREIF (1991).
834
Cf. Q. Caecilius who refused to lend at less that 12% even to his closest relatives: CICERO, Att.
I, 12, 1.
835
CICERO, Off. III, 58: Pythius qui esset ut argentarius apud omnes ordines gratiosus. The
sequence of this passage show that ordines is here to be understood as loosely referring to any social
class. See also ANDREAU (1985).

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usurious loans to cities and kings. We do not know for sure whether they also lent
money to traders and other businessmen, but the example of the Sulpicii from
Puteoli, who served as financial intermediaries between imperial slaves and
Puteolean merchants, points in this direction.836 Whether or not the enormous cash
reserves of the aristocracy could be made available to independent businessmen
depended on these middlemen.

836
On the Sulpicii see now CAMODECA (1999) ANDREAU (1995b); VERBOVEN (2000b) (and
cf. supra p. 164).

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INHERITANCES, LEGACIES AND GUARDIANSHIPS.

1.15 History and frequency of the officia testamentaria.


Although Maine’s famous thesis that ‘Romans had a singular horror of intestacy’
and ‘a passion for testacy’ has been seriously challenged, scholars today again
commonly accept that by the Late Republic all but the poorest Roman citizens were
expected to make a will. To die without a will was deemed improper and
dishonourable.837 The lex Voconia, prohibiting women from being appointed heir in a
will to a member of the prima classis but not interfering with women’s right to
inherit ab intestato, would be absurd if it was not customary for members of the
prima classis to make wills.838 The subsequent development of the legally
unenforceable fideicommissum as a substitute will to bequeath property to those who
were legally excluded from the right to inherit (for example women when the testator
belonged to the prima classis) shows that social pressure to write a testament was
strong enough for people to prefer even an unenforceable will to no will.839 A
passage in Gaius indicates that even common soldiers, who were recruited from
among the poorest and least educated citizens, regularly made wills.840
A will in Rome represented more than a practical way to bequeath property. It
provided a final occasion to honour friends, patrons and family and to repay them for
all the kindness one had received from them. By leaving legacies to his hometown, a
testator could for one last time prove his liberalitas. In his will he could appoint
guardians to his children and commend them to his most powerful friends. If he was
childless, he could adopt a son to assure that his name would live on after him.
Conversely,

837
CROOK (1973); CHAMPLIN (1989a); CHAMPLIN (1991), p. 20-21; HOPKINS (1983), p.
235-236; CORBIER (1985), p. 509-510. Those who had nothing to leave behind could be motivated to
make a will to provide guardians for their children (SALLER (1994), p. 192). Contra see DAUBE
(1936); DAUBE (1964-1965); WATSON (1971), p. 175-176.
838
CROOK (1986), p. 65-66; WATSON (1971), p. 29-30, 35-39, 167-170.
839
CROOK (1973), p. 43-44; WATSON (1971), p. 35-39; SALLER (1994), p. 166-166.
840
GAIUS II, 109.

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the testator could – with impunity – show what he really thought of all his
‘friends’ and relatives. To ignore close friends and relatives or to leave them less than
was commonly expected constituted an insult and either damaged their reputation or
that of the testator. The last will of a person was deemed a mirror of his character.841
When an important person died people eagerly awaited the reading of the deceased’s
will and its contents rapidly became the subject of gossip and small talk.
At a remarkably early stage of Roman history, the Twelve Tables granted Roman
citizens the right to bequeath property to whomsoever they liked (which does not
necessarily mean that it was a common practice).842 In 254 BCE the pontifex
maximus Ti. Coruncanius ruled that the heir who took the largest share or anyone
who received more by way of legacy than the heir, regardless of his relationship with
the deceased, was responsible for the onerous sacra priuata. It is the oldest indication
we have that substantial legacies to outsiders had become sufficiently common to be
considered problematic.843
A further indication that the habit of leaving substantial legacies to non-relatives
or distant kin had become common by the end of the third century BCE can be found
in the lex Furia testamentaria, dating from the final years of the third century or the
early second century BCE.844 This law prohibited anyone from accepting a legacy
worth more than 1000 (sextantal) asses unless he or she was a blood relative within
the sixth degree or the child of a cousin on the mother’s side. The law was minus
quam perfecta, which means that illegal legacies were not invalidated but anyone
accepting such a legacy was fined (in this case four times the excess amount of the
legacy). The law never seems to have had much effect but this need not concern us
here. The limit of 1000 asses allowed by the law seems almost ludicrously low,
indicating that the law was intended to allow only symbolic legacies to non-relatives
and distant kin.845

841
PLINY, Epist. VIII, 18.
842
CRAWFORD (1996), p. 635-651; WATSON (1975), p. 53-70; FLACH (1994), p. 134-144.
843
cf. CICERO, Leg. 2, 52; WATSON (1971), p. 4-5; 163-164; HOPKINS (1983), p. 235-236.
844
GAIUS II, 224-225; IV, 23-24; Tit. Vlp. 2. WATSON (1971), p. 165; WALLACE-HADRILL
(1981), p. 70.
845
Note that the minimum census required for the fifth classis in the early second century according
to Polybius (VI, 19, 3) was 4000 sextantal asses. Persons declaring less than 1500 asses were proletarii
according to GELLIUS XVI, 10, 10.

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Clearly, by the time of Cicero, the practice of leaving shares and legacies to
friends, patrons, clients and distant relatives had a long history and was firmly rooted
in the exchange of services expected from amici.

1.16 The claims of family.

a) Parents and children.

The social norm determining who was to receive a share in a will, followed largely
the legal rules concerning inheritance ab intestato. The closest family members
normally received the largest share of the inheritance. Accordingly, the majority of
all known inheritances concern property bequeathed to children and spouses or –
when neither of both categories was available – siblings, nephews and nieces. 846
A pater familias’s direct descendants and his wife in manu – who was counted as
a daughter –were legally that man’s sui heredes. In case of intestacy, they
immediately and automatically inherited everything that had belonged to the
deceased. Although a father had the legal right to disinherit his sui heredes, social
pressure against him doing so was strong. The censors of 71-70 expelled the senator
Cn. Egnatius from the senate because he had publicly disinherited his son whom he
suspected of accepting bribes.847 Q. Hortensius Hortalus contemplated disinheriting
his son because of his provocative and scandalous life-style. Although the intention
seems to have been generally approved, Hortensius did not carry out his threat and
his son inherited most of his father’s property.848
The law required that disinheritance of a suus heres had to be made explicit in the
will. A will that simply ignored a suus heres was valid, but the suus heres in question
nevertheless received a share contrary to the terms of the will (contra tabulas). The
birth of a son automatically annulled an existing will unless he was already
mentioned in it.849 Adoption or emancipation did not sever the social ties between
parents and their natural children. Although according to ius ciuile an emancipated
son or daughter ceased to be a suus heres, according to praetorian law

846
Cf. SALLER (1994), p. 161-180; CORBIER (1990), p. 511-514; MOREAU (1986);
WALLACE-HADRILL (1981); CHAMPLIN (1991), p. 103-130.
847
CICERO, Clu. 135.
848
VALERIUS MAXIMUS V, 9, 2; CICERO, Att. VII, 2, 7; 3, 9; PLINY, N.H. XIV, 96;
PLUTARCH, Cat. Min. 52.
849
GAIUS II, 123-135; WATSON (1971), p. 41-45.

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they were still legitimate heirs (heres legitimi). Accordingly, when a testator
intended to disinherit them the praetor demanded that they too had to be explicitly
disinherited for a will to be effective.850
However, even if a deceased had disinherited a suus heres or a heres legitimus
according to all legal rules, the suus heres could contest the validity of the will before
the court of the centumuiri in a querela inofficiosi testamenti on the grounds that it
was undutiful (inofficiosum). Recourse to the querela inofficiosi testamenti was not
only available in the case of a father disinheriting one or more of his children. The
criterion used was piety (pietas), which applied both to parents vis-à-vis their
children and to children vis-à-vis their parents, even when an adoption or an
emancipation had severed all legal ties. Thus, the will of a mother that ignored her
son or daughter could be contested before the centumuiri, as could the will of a child
ignoring either of his natural parents. In some cases, even the will of a sibling could
be could be subject to a querela. 851
A certain Liburnia was not mentioned in the will of her son while a friend of the
deceased, a certain P. Novanius Gallio, was appointed heir. The case led to a querela
inofficiosi testamenti in which the jurist and orator C. Asinius Pollio pleaded on
behalf of Liburnia. Pollio sarcastically paraphrased the will: ‘My mother who was
most dear and sweet to me … will be disinherited (exheres esto)… P. Novanius
Gallio, to whom I deservedly wish all good as I should on account of his most
sincere goodwill for me … shall be my heir’ (heres esto).852 Pollio’s paraphrase is
interesting not only because legally Liburnia did not have to be explicitly disinherited
– since she was not a suus heres – but mainly because according to the lex Voconia
she could not be an heir to her son in any case! The application of the legal formula
exheres esto by Pollio in the case of Liburnia indicates the strong moral right of a
mother to inherit from her son. Legally Liburnia could not be her son’s heir; morally
she was entitled to her share of the inheritance.
The same strong moral obligation for a son to mention his mother in his will is
found in Cicero’s oration for A. Cluentius the Younger.

850
Cf. GAIUS II, 135.
851
WATSON (1971), p. 62-70. Note that a son or daughter in potestate could not make a valid will,
but an emancipated child could and such a will would be liable to a querela inofficiosi testamenti.
852
QUINTILIAN, Inst. IX, 2, 34-35; ‘mater mea, quae mihi cum carissima tum dculcissima fuit,
quaeque mihi uixit bisque eodem die uitam dedit’ et reliqua, deinde ‘exheres esto’ … ‘P. Nouanius
Gallio, cui ego omnia meritissimo uolo et debeo pro eius animi in me summa uoluntate. On the case see
CROOK (1986), p. 75.

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Cluentius filius long postponed making a will because on the one hand he hated
and feared his mother Sassia, while on the other hand he could not bring himself to
ignore her in his will. Of course, Cluentius’s true intentions and feelings may have
been different, but the justification put forward by Cicero is eloquent proof of
popular opinion about how a good son should behave.853
The will of a certain Aebutia spurned one of her daughters in favour of the other
Although the daughter decided to respect her mother’s last will, Valerius Maximus
assures us that the will could have been rescinded on the grounds that it was
inofficiosum.854 Augustus declared the will of a certain Tettius who disinherited his
son void.855 In the case of a certain Septicia, who had remarried late in her life and
ignored her two sons from a former marriage in her will in favour of her new
husband, Augustus not only rescinded the will but also took the dowry away from
Septicia’s husband.856
Aemilius Paullus left his natural son Q. Fabius Maximus Aemilianus sixty
talents.857 Annius Milo inherited from both his adoptive and his natural father.858 The
Roman knight M. Anneius Carseolanus was adopted by his uncle and disinherited by
his natural father. Carseolanus successfully contested the will despite the fact that a
protégé of Pompey had been appointed heir in his place. A certain Terentius had
eight sons, one of whom was adopted by someone whose name we do not know.
When the adopted son died, it appeared that he had left nothing to his natural father.
The praetor C. Calpurnius Piso (cos. 67) gave Terentius possession of the inheritance
contrary to the will (contra tabulas) and refused to allow the heirs mentioned in the
will to bring a civil law suit against Terentius.859

b) Other near relatives

Parents and children were far from being the only family members who had a
moral right to a share of the inheritance. Cornelius Balbus, for

853
CICERO, Clu. 45. On Cluentius’s case see CROOK (1986), p. 72; MOREAU (1986), p. 178-
179.
854
VALERIUS MAXIMUS VII, 8, 2.
855
VALERIUS MAXIMUS VII, 7, 3.
856
VALERIUS MAXIMUS VII, 7, 4.
857
POLYBIUS XXXI, 28, 3. See SHATZMAN (1975), p. 251.
858
CICERO, Mil. 95; ASCONIUS, Mil. 47 (ed. Clark).
859
VALERIUS MAXIMUS VII, 7, 5.

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188

example, had himself adopted by Pompeius Theophanes from Mitylene in order to


be able to inherit from his new relatives (propinqui).860
Next to parents and children came siblings, cousins and children of siblings. C.
Quinctius appointed his frater (brother or cousin) P. Quinctius as heir.861 L. Saufeius
was heir to his frater App. Saufeius.862 Cato the Younger was heir to his cousin.863
Atticus was adopted and appointed first heir in the will of his maternal uncle Q.
Caecilius. Although Caecilius’s will was strongly criticised because he had ignored
Lucullus Ponticus whose protégé he had long been, Cicero praised Caecilius’s choice
of Atticus as duteous.864
When Pompeius Reginus’s brother died, it appeared that the deceased had left
nothing to Reginus. His entire fortune was bequeathed to non-relatives of a low
social background. Reginus reacted by reading his own will aloud in public, in which
his brother received a praelegatum of 15 million sesterces over and above a
substantial share of the inheritance. Valerius Maximus – and we may assume the
Roman public at the time – was scandalised but Reginus refused to contest the will.
Valerius Maximus’s narration of the events clearly indicates that Reginus could have
brought a querela inofficiosi testamenti against the will of his brother, but refused to
‘disturb the ashes of his brother by a lawsuit’.865
Metellus Nepos had a very large family and was related by marriage to the even
larger family of the Claudii. In order not to disappoint anyone, he appointed the
outsider C. Carrinas C. f. (praetor in 46, consul in 43) as sole heir. Although Nepos’s
relatives respected the will, Valerius Maximus condemns Nepos’s decision and by
listing the will among those ‘who could have been rescinded but were not’ shows
that at least some of Nepos’s relatives could have successfully contested the will.866
Clearly, a person’s next of kin had a strong moral claim on the inheritance. The
exclusion of near relatives in favour of outsiders (extranei) was generally
disapproved of and could be a reason to suspect fraud.

860
CICERO, Balb. 57.
861
CICERO, Quinct. 14. On frater meaning both ‘brother’ and ‘son of a paternal uncle’, see
SHACKLETON BAILEY (1977b).
862
CICERO, Att. VI, 1, 10.
863
PLUTARCH, Cat. Min. 6, 4.
864
CICERO, Att. III, 20, 1: … gaudio auunculum tuum functum esse officio …; VALERIUS
MAXIMUS VII, 8, 5; NEPOS, Att. 5, 1-2.
865
VALERIUS MAXIMUS VII, 8, 4. See WATSON (1971), p. 67-68 on the case of Reginus.
866
VALERIUS MAXIMUS VII, 8, 3.

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189

Cluentius was accused of falsifying the last will of P. Aelius in which a near
relative of the deceased was passed over in favour of Cluentius.867 Marc Antony
inherited from a certain L. Turselius while the deceased’s brother was passed over in
the will. The will of L. Rubrius from Casinum instituted Antony as heir while
ignoring the son of the testator’s brother. Cicero accused Antony in both cases of
forging the will.868
However, the circle of relatives who were expected to benefit from a will seems to
have been rather limited. We may note that, according to Cornelius Nepos, Atticus
received his inheritance from Caecilius not because he was the son of Caecilius’s
sister, but because he had been the only one who could endure Caecilius’s difficult
character and knew how to treat the old man in such a way as not lose his affection.
The same Caecilius was censured for not having appointed Lucullus Ponticus as heir,
which shows that the claims of amicitia could – at least in some cases – compete
with the claims of propinquitas.869

1.17 The claims of friends and affines.


Friends and in-laws (adfines) came next in the system of the officia testamentaria.
In-laws, friends, patrons and clients870 had no legal claims to each other’s estates, but
morally they could – in some cases – claim a share of the inheritance. To leave a
share to close in-laws, amici and protectors was a question of honour.871 It was the
last officium that could be expected from an honourable man. Thus concerning the
inheritance Paconius Lepta had received from a certain Macula, Cicero wrote to
Lepta saying that he was ‘glad that Macula had done his duty’.872
Valerius Maximus discussed a number of unworthy wills in which deserving
amici, to whom in some cases the deceased had promised that they would be sole
heirs, were passed over.873 The case of Atticus’s maternal uncle Q. Caecilius, whom
we have already mentioned, is no

867
CICERO, Clu. 162. See MOREAU (1986), p. 173.
868
CICERO, Phil. II, 40; 62; 73.
869
Cf. also CHAMPLIN (1991), p. 144.
870
Contrary to patrons vis à vis their freedmen.
871
SALLER (1994), p. 124-125; HOPKINS (1983), p. 235-247; MICHEL (1962), p. 561-564;
CHAMPLIN (1991), p. 131-154; WHITE (1978), p. 90; CORBIER (1985), p. 514-518; WALLACE-
HADRILL (1981), p. 66-70. On adfinitas see MOREAU (1990).
872
CICERO, Fam. VI, 19, 1: Maculam officio functum esse gaudeo.
873
Cf. VALERIUS MAXIMUS VII, 8, 5-9: Quae aduersus hominum heredes habuerunt.

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190

doubt the most famous. Caecilius had made a fortune in business thanks to the
support and generosity of Lucullus Ponticus. Caecilius had always claimed that
Lucullus would be his sole heir. On his deathbed he had handed over his ring to
Lucullus, thereby confirming again his intention to appoint Lucullus first heir. At the
opening of the will, however, it was found that he had appointed his sister’s son
Atticus as first heir for three-quarters of the inheritance. According to Valerius
Maximus, Caecilius’s will caused so much indignation that the people attacked the
funeral procession and dragged the corpse through the streets. Caecilius had been a
notorious usurer and Valerius Maximus’s thesis about why the people attacked
Caecilius’s corpse is likely to be false. Nevertheless, the fact that Valerius Maximus
was able to propose this explanation as credible testifies to the strength of Caecilius’s
moral obligation to leave a substantial share to his benefactor.874
The case of T. Barrus and Lentulus Spinther is comparable. Their ‘friendship’ is
described by Valerius Maximus as a liberalissima amicitia and Spinther is said
always to have shown an amantissimus animus toward Barrus. Like Caecilius,
Barrus handed over his rings to Spinther, indicating that Spinther would be his sole
heir, but when Barrus’s will was opened, it appeared that Spinther was to receive
nothing.875
The same thing happened to Augustus. T. Marius Urbinas had been a soldier who
owed his career and fortune to Augustus. Urbinas had always claimed that he would
leave everything to the emperor, but when he died and the will was opened Augustus
was not mentioned in it.876 According to Suetonius, it was not the only time that
Augustus was disappointed in a ‘friend’. Although as a rule he never accepted
anything that strangers had supposedly left him (a practice not observed by less
scrupulous emperors), he was always very eager to know what his amici had left
him. When the deceased had shown gratia and pietas Augustus was delighted, but
when he received less than expected or when the wording of the will was insulting he
was openly distressed.877
To be remembered in a will was honourable and served as a standard for one’s
social position. It proved the beneficiary’s fidelitas and

874
VALERIUS MAXIMUS VII, 8, 5. Compare also CICERO, Att. III, 20, 1; NEPOS, Att. 5, 1-2,
and cf. supra p. 127.
875
VALERIUS MAXIMUS VII, 8, 8
876
VALERIUS MAXIMUS VII, 8, 6.
877
SUETONIUS, Aug. 66, 4.

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191

bonitas.878 Cicero proudly claimed that even when he was in exile his amici
continued to mention him in their wills.879 In 43 he claimed to have received in the
course of his life 20 million sesterces in legacies and shares.880 On the other hand, not
to be mentioned in the will of a friend was humiliating. That is why Marc Antony
maintained that Cicero never received anything by will.881 Cicero once abusively
hurled at Clodius in the senate that he was not mentioned in the will of his brother in
law Marcius Rex. Clodius’s omission in the will was even more humiliating because
Clodia’s other brother, App. Claudius, was appointed heir.882 After his return from
exile, Cicero publicly denounced a supporter of Clodius, a certain Aelius Ligus, for
having been omitted in the will of his own brother M. Papirius.883 Cicero’s reproach
appears to have been a stock insult since a handbook in oratory, the Rhetorica ad
Herennium, explicitly mentions a similar abuse in a model subiectio.884 In 45, Cicero
was outraged to find that a certain Calva had left him nothing.885 In 54, both Cicero
and his brother complained that a certain Felix had left them nothing, although they
had been led to expect a share of one-twelfth.886
Conversely, to refuse a share of an inheritance left by a friend was insulting, most
likely because it virtually denounced the deceased as bankrupt or unworthy to be
associated with. The feeling is illustrative of the great symbolic importance attached
to wills. Leaving a legacy or a

878
Cf. CICERO, Q.fr. I, 3, 6: genere ipso pecuniae beatissimus. PLINY, Epist. V, 5, 1; VII, 31, 5
(fidelitas); Dig. XXXIII, 1, 10, pr. (bonitas); NEPOS, Att. 21, 1.
879
CICERO, Dom. 85. See CICERO, Q. fr. III, 1, 6: genere ipso pecuniae beatissimus
880
CICERO, Phil. II
2, 40.
881
CICERO, Phil. II, 40. See also PS.-CICERO, In Sall. 9.
882
CICERO, Att. I, 16, 10; DIO XXXIV, 7, 2.
883
CICERO, Dom. 49
884
Rhet. Her. IV, 33. A subiectio was a rhetorical figure of speech in which questions were posed to
an opponent, which were immediately answered by the person delivering the speech.
885
CICERO, Att. XV, 3, 1
886
CICERO, Q. fr. III, 9, 8; Att. IV, 19, 2. The latter passage is corrupt, it reads selicianae unciae.
Tyrell proposed to Felicianae unciae (TYRELL & PURSER (1904-1933) ad h. l.) Shackleton Bailey
accepts the reading of the manuscript as referring to the interest rate of one uncia charged by the
faenerator Selicius (SHACKLETON BAILEY (1965-1970) III, p. 225-226). I follow Tyrell’s reading
because the use of the term uncia applied to interest rates is extremely rare and apart from one isolated
passage in the Digest is attested only for interest laws (cf. FESTUS, p. 516 (ed. Lindsay); LIVY VII, 16,
1; TACITUS, Ann. VI, 6, 16). In Dig. XXVI, 7, 47, 4 (Scaevola) the indication uncias usuras probably
means one twelfth of the centesima usura, i.e. 1% per year (KEHOE (1997), p. 36-37; BÜRGE (1987),
p. 541).

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192

share in the inheritance to a friend expressed for a last time the close association
between the testator and his friend. Valerius Maximus relates the story of Oppius
Gallus, who refused to accept the rings that the dying senator M. Popilius offered
him as token that he had appointed him as principal heir. The two men had been
intimate friends since their childhood and in Valerius Maximus’s eyes Gallus’s
refusal to accept Popilius’s inheritance constituted a grave insult to the dying man.887
Although the moral right of amici to inherit from each other came after that of
close relatives, they were not necessarily excluded from the inheritance when near
family-members were available. They could receive smaller shares or legacies. Sulla
left most of his property to his son but all his friends received legacies – except
Pompey, whose growing power and influence he feared would destroy the
constitution he had devised. Sulla’s omission of Pompey was well understood as a
motion of no-confidence.888
Cluentius Habitus was first heir to P. Aelius and was charged with paying a legacy
of 300,000 sesterces to a certain Florus.889 The businessman Cluvius from Puteoli left
a huge inheritance to Cicero, Caesar and another businessman from Puteoli
Hordeonius. Terentia received a legacy of 50,000 sesterces from Hordeonius.890
Another familiaris of Cicero, Cossinius, left a legacy to him in 45.891 Dinaea’s will
appointed her grandson C. Oppianicus as heir but contained numerous legacies that
were erased by young Oppianicus’s father.892 Hortensius Hortalus appointed his son
and his wife Marcia as heirs in the first degree, but charged his heir with numerous
legacies to his amici.893 Augustus’s will contained numerous legacies – some of
‘only’ 20,000 sesterces – to relatives and friends.894 When Iunia, the widow of
Cassius Longinus and half-sister to Brutus, died in 22 CE, she left legacies to every
person of some position in the city except the emperor.895

887
VALERIUS MAXIMUS VII, 8, 9.
888
PLUTARCH, Sul. 38, 1; Pomp. 15, 3.
889
CICERO, Clu. 162. See MOREAU (1986), p. 173.
890
CICERO, Att. XIII, 45, 2-3; 46, 3-4; 37a; XIV, 9, 1; 10, 3; 11, 2; XVI, 2, 1; 6, 3.
891
CICERO, Att. XIII, 46, 4.
892
CICERO, Clu. 21-23. On the family relations of the Statii Oppianici see MOREAU (1983).
893
CICERO, Att. VII, 2, 7; 3, 9; VALERIUS MAXIMUS V, 9, 2; PLINY, N.H. XIV, 96;
PLUTARCH, Cat. Min. 52.
894
SUETONIUS, Aug. 101, 3. Claudius received 800, 000 sesterces (SUETONIUS, Cl. 4, 7). See
also TACITUS, Ann. I, 8.
895
TACITUS, Ann. III, 76, 1. See ROGERS (1951).

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193

Legacies could be a burden for the heirs. Unlike heirs, legatees could not be held
liable for the debts in the inheritance. An alternative way to leave a share to amici
was to appoint them heir for a smaller portion of the inheritance. Thus Atticus
received only three-quarters of his uncle’s inheritance. Caesennia bequeathed 23/24
of her property to her husband Caecina but left 1/72 to her friend and procurator Sex.
Aebutius and 2/72 to a freedman of her late husband Fulcinius.896 Antistius left 5/6 to
his propinquus C. Ateius Capito, while the remaining one sixth went to a number of
unknown supporters of Pompey.897 A certain Babullius left a third of his fortune to
Q. Paconius Lepta and one twelfth to Caesar.898 Cornelius Dolabella was heir to a
Livia for only a ‘third of a third’ (in trientis triente).899 Cicero and his brother
expected to inherit a twelfth from a Felix.900 Q. Sertorius left a share to his chief
associate M. Perperna Veiento.901
When there were no close relatives at hand – which must have been quite common
in the demographic circumstances of the time – the entire inheritance could be left to
outsiders. Apart from Cluvius, who divided his fortune among Cicero, Caesar and
Hordeonius we know of two other examples. A certain Scapula left his fortune to
four heirs, none of whom seems to have been related to the deceased.902 The
businessman Q. Turius left his considerable African estates to no less than six men:
Sex. Aufidius, Q. Considius Gallus, L. Servilius Postumus, C. Anneius, C. Rubellius
and Cn. Saturninus.903
Freedmen formed another category of potential heirs competing with friends and
in-laws. We know several examples of liberti who inherited from their patrons. A
certain Brinnius left the bulk of his fortune to four men, one of whom was a
freedman (the others were Cicero, Suettius and Albius Sabinus).904 Zoilus, a
freedman of L. Nostius, was appointed

896
CICERO, Caec. 17.
897
CICERO, Fam. XIII, 29.
898
CICERO, Att. XIII, 48, 1.
899
CICERO, Att. VII, 8, 3.
900
CICERO, Q. fr. III, 9, 8; Att. IV, 19, 2. See also supra p. 191.
901
APPIAN, B.C. I, 114 The choice was not a happy one since Perperna killed his friend.
902
CICERO, Att. XII, 37, 2; 38a, 2; 44, 2; XIII, 26, 1; XII, 47, 1; 51, 2; XIII, 29, 1; 31, 4; XII, 5a;
XIII, 33, 2; 22, 4; 33a, 1 (in chronological order). The heirs – an Otho, a Mustela, a Vergilius and a
Crispus – are further unknown.
903
CICERO, Fam. XII, 26; 27.
904
CICERO, Att. XIII, 12, 4; 13-14, 4-5; 21a, 3; 22, 4; 50, 2; XIV, 8, 2; 20, 2.

193
194

co-heir to his patron together with Cicero.905 As we have just seen, Caesennia
instituted a freedman of her late husband Fulcinius heir for 2/72 of the inheritance,
whereas her friend and procurator Aebutius received only 1/72.
Not all institutions as heir were effective. It was customary to appoint heirs in the
second and even third degree in case the heir(s) in the first degree would not or could
not accept their shares. The institution of heirs in second and third degree offered the
testator the possibility of honouring a virtually unlimited number of ‘friends’ without
unduly fragmenting the inheritance.
Caesar appointed Marc Antony, Brutus Albinus and others who later took part in
the assassination of the dictator heir in the second degree.906 Cicero was heir in the
second degree of T. Pinnius and was appointed guardian of Pinnius’s young son who
was heir in the first degree. Augustus appointed Tiberius and Livia heirs in the first
degree (for respectively two thirds and one third of the inheritance). Tiberius’s son
Drusus was appointed heir in the second degree for one third together with
Germanicus and his children for two thirds. Other relatives, friends and important
senators were heirs in the third degree.907 An honorary appointment as heir in the
second or third degree could become effective when the heirs in the first degree
refused or were unable to accept the inheritance. This seems to have happened in the
case of Lucullus, who ceded his share of an inheritance he had received to App.
Claudius.908 There are no indications, however, that heirs in the second or third
degree normally stood much chance of receiving a share.
The case of the famous causa Curiana is special. An unknown testator had
appointed a certain M’ Curius guardian of his unborn child and prescribed that
Curius would be heir in the second degree if the son were to die before the
guardianship had officially started. M. Coponius challenged the will because the
posthumous son was never born. Therefore, the condition under which Curius had
been appointed heir in the second degree could not be met. Crassus the orator
defended Curius and won

905
CICERO, Fam. XIII, 46.
906
cf. SUETONIUS, Iul. 83; APPIAN, B.C. II, 135-136, 143; DIO XLIV, 35, 2-3; PLUTARCH,
Caes. 64; CICERO, Phil. II, 71. See also SHATZMAN (1975), p. 357-358.
907
SUETONIUS, Aug. 101; TACITUS, Ann. I, 8 (cf. SUETONIUS, Cl. 4, 7). On Augustusf’s will
see CHAMPLIN (1989b).
908
VARRO, R.R. III, 16, 2.

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195

the case, which became a precedent for the prevailing of the testator’s intention
over the formalities of his own will.909
Small legacies could serve as a different way to honour amici without unduly
fragmenting an inheritance or burdening the actual heirs. A model will preserved in
the Anthologia Palatina contains one legacy to a friend worth 0.76 % of the
inheritance.910 In the will of (presumably) Domitius Tullus (long thought to have
been the will of P. Dasumius Tuscus (cos. suff. 103 ?)) only two legatees out of
approximately 50 received substantial amounts of several hundreds of thousands of
sesterces. The majority of the legatees received relatively small legacies of, for
example, 1 pound of gold.911 Cicero was left a symbolically small sum (a
raudusculum) as legacy in the will of a supporter of Marc Antony in 44.912
Curius’s will instituted Atticus heir ex libella, Cicero ex teruncio. Literally this
would mean heir for ‘a tenth’ and ‘a fortieth’. However, the terms libella and
teruncius are nowhere else attested to denote a specific share of an inheritance,
whereas they were commonly used to denote a very small sum. So in my view it is
better not to take Cicero’s words literally. Instead of reading: ‘he openly instituted
you heir for one-tenth, me for one fortieth’, we should read something like: ‘he left
you a dime, and me a penny’.913
Powerful politicians attracted inheritances in exchange for the favours they had
shown to the deceased. L. Valerius Flaccus was accused of unlawfully usurping the
inheritance left by a certain Valeria while he was governor of Asia in 62. Cicero
retorted by pointing out the many inheritances that Lucullus Ponticus had received in
response to his exceptional liberalitas and the great beneficia he was wont to
distribute when he was governor of Asia in charge of the war against Mithridates. T.
Vettius Sabinus, the presiding praetor in the case, was about to set out to assume

909
CICERO, De orat., I, 180; Brut.144-145; 194-198; Top. 44. See also WATSON (1971), p. 44.
910
Anth. Pal. XIV.123; CHAMPLIN (1991), p. 184-186.
911
CIL VI, 10229; AE (1976) 77; AE (1978) 16. On the identity of the testator see SYME (1988).
CHAMPLIN (1991), p. 37 appears unconvinced. On Domitius Tullus and his will see also PLINY,
Epist. VIII, 18 and cf. infra.
Of course, 1 pound of gold (42 aurei = 4200 sesterces) was a modest sum only for senators and
knights, not for the common people. Until the discovery of AE (1976) 77 Pliny and Tacitus were thought
to have been among the legatees.
912
CICERO, Att. XIV, 3, 2; 14, 5.
913
CICERO, Att. VII, 2, 3: fecit palam te ex libella, me ex terruncio. The libella was a scornful term
for the light (originally ‘sextantal’) as introduced at the time of the Second Punic war. The teruncius
originally denoted a quadrans (see Pliny, N.H. XXXIII, 45).

195
196

the governership of Africa and could hope to receive similar shares and
legacies.914 Perhaps we should add the inheritances that Marc Antony received when
he was magister equitum of Caesar, although Cicero claimed that Antony had
usurped the inheritances though force and intimidation.915 The practice foreshadowed
the situation under the Empire when the emperor normally – although not necessarily
– received a share of the inheritance lef by those who had enjoyed any kind of
imperial promotion or favour.916

1.18 Neglect and manipulation of the officia testamentaria.


Neglect of duty and manipulation of the social norms determining who had a
moral claim on a share or a legacy were favourite subjects of Roman moralists and
satirists. The theme of legacy hunting or captatio testamenti loomed especiallylarge
in the imagination of poets, novelists and moralists. The significance of this fixation
on the abuse of social norms should not be underestimated. Regardless of the actual
frequency with which such abuse occurred, the prominence of it in the imagination
of people is indicative of the depth and strength of the norms in question.

a) The right to do the wrong thing

We have already seen several cases of testators who were expected to leave
substantial shares to their friends but who tricked the world by leaving nothing or
mere trifles. It is remarkable to find that there never seems to have been any attempt
to underpin the social norms regarding the rights of amici to a legacy or a share of
each others inheritances legally. Roman law always defended the private and
personal character of testaments. The exceptions granted to close relatives – who
were able to inherit contrary to an otherwise valid will – were never extended to
amici.
Legal support would have been possible, for instance, by prescribing that a will
had to be made public. The oldest form of a will that is known to have existed in
Rome – the testamentum comitiis calatis – had been

914
CICERO, Flacc. 85. The testator was the daughter of a freedman of one of the Valerii Flacci, by
virtue of which Flaccus claimed to be her tutor legitimus and nearest substitute agnate.
915
CICERO, Phil. II, 41-42; 62; 74.
916
Cf. ROGERS (1947); MILLAR (1977), p. 153-158; SALLER (1982), p. 71-73; CHAMPLIN
(1991), p. 150-153, 203 (see here for a list of all known wills leaving something to the emperor).

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197

precisely such a public will, validated by a special assembly of the Roman


people.917 Yet although some testators took the initiative to make the contents of their
wills public, Roman law never seems to have considered the possibility of requiring
such a publication. In other words, the law guaranteed the personal right of a testator
to ignore the code of amicitia.

b) Captatio testamenti

Deviation from the social norms concerning last wills not only occurred on the
side of the testator. The habit of leaving shares and legacies to amici paved the way
for the lucrative but much detested practice of inheritance hunting, for which the
Romans devised a special term, captatio, referring to unscrupulous outsiders courting
wealthy testators in the hope of receiving a large share (preferably all) of the
inheritance. The captator pretended to be a sincere friend of his victim and proved
his affection by gifts and services.918
Captatio was generally considered detestable. Champlin acurately describes
captatio as a moral crime distinct from forgery, which was a legal crime.919
According to Cicero, the behaviour of a captator was unworthy of a free man.920
Seneca denounced captatores as ingrati.921 They feigned friendship waiting only for
the death of their intimates (familiarissimi).922
Of course, much depended on interpretation. The services and gifts provided by
captatores were – with the exception of sexual favours – the same as those expected
in honest friendship. According to the suspected captatores themselves, their victims
were ungrateful if they failed to reward their (pretended) friends’ zeal to
accommodate them.923 Pliny praised the second wife of Domitius Tullus for
marrying and taking care of the senile and helpless old man until his death, after
which she was deservedly rewarded with a magnificent legacy. Juvenal’s tenth satire
features a similar senile old man – evidently portrayed in the likeness of

917
See WATSON (1971), p. 8; JOLOWICZ (1939), p. 125.
918
On captatio see HOPKINS (1983), p. 235-247; SALLER (1982), p. 124-125; CHAMPLIN
(1991), p. 87-102, 201-202; TRACY (1980); CORBIER (1985), p. 515-517; MANSBACH (1982).
919
CHAMPLIN (1991), p. 87.
920
CICERO, Par. Stoic. 5, 39.
921
SENECA, Ben. IV, 20, 3.
922
SENECA, Ben. VI, 38, 4; cf. MARTIAL I, 10; II, 26; XI, 44; 55.
923
Cf. PLINY, Epist. VIII, 18.

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Tullus – leaving his fortune to the prostitute who had nursed him in his final years
with precisely this aim in mind.924 Corbier speaks of ‘les deux portraits antithétiques:
celui du “captateur” de testaments … et celui de l’homme estimé qui peut tirer
orgeuil de recevoir beaucoup ou d’un grand nombre d’amis.’925
The shameless legacy hunter who was such a favourite character of moralists and
satirists had his mirror image in the cunning testator who assured himself of the
services of a multitude of ‘dear friends’, securely bound to him by the hope of a
promising inheritance. An epigram of Martial features a certain Charinus who
changed his testament 30 times in a single year. Each time his ‘friends’ had to send
him new gifts to thank him for his kindness in mentioning them in his will. A ruined
captator begs for mercy: he could afford no more gifts.926 Another epigram features a
Naevia who deliberately exaggerated her fits of coughing to deceive her ‘friend’
Bithynicus.927 Tacitus and Pliny the Elder present childlessness (orbitas) as a source
of wealth and power, because it attracted inheritance hunters who were easily
manipulated.928
Captatio testamenti is a familiar theme in Roman literature and is well
documented in satire, moral essays and descriptive literature.929 Although it is most
attested under the Empire, the practice occurs as early as in Plautus’s Miles Gloriosus
and Cicero’s Paradoxa Stoicorum.930 The term captare testamentum seems to have
been invented by Horace.931 It has been claimed that the apparent growth of the
practice of captatio testamenti reflects the diminishing alternatives for enrichment

924
PLINY, Epist. VIII, 18, 8-10; JUVENAL 10, 232-239. See CHAMPLIN (1991), p. 98; SYME
(1979), p. 1137-1138. The will has been identified as the so-calle testamentum Dasumii, cf. supra p. 195.
925
CORBIER (1985), p. 515-517. See also CHAMPLIN (1991), p. 90.
926
MARTIAL V, 39.
927
MARTIAL II, 26. See also MARTIAL IX, 8; PLINY, Epist. VIII, 18; JUVENAL 3, 128-130.
See TRACY (1980), p. 401; CHAMPLIN (1991), p. 24-25.
928
TACITUS, Dial. 6, 2; Hist. I, 73; Ann. XIII, 52; PLINY, N.H. XIV, 5. See MARTIAL XI, 44;
PETRONIUS 116, 7; PLUTARCH, Mor. 497a-c. See also WALLACE-HADRILL (1981), p. 69;
CHAMPLIN (1991), p. 91-93.
929
Cf. e.g. HORACE, Serm. II, 5; MARTIAL I, 10; II, 26; IV, 56; V, 39; VI, 62; 63; VII, 66; VIII,
27; IX, 8; 48; XI, 44; 55; XII, 10; JUVENAL 1, 37-39, 132-146; 4, 15-21; 5, 96-98; 137-145; 6, 39-40;
10, 202; 12, 97; 130; PETRONIUS 116, 6-8; LUCIANUS, Dial. Mort. 345 (15, 5); CICERO, Par. Stoic.
5, 39; SENECA, Ben. IV, 20; VI, 38; PUBLILIUS SYRUS, Sent. C6 (ed. Meyer). See also LAFLEUR
(1979), p. 160 on Juvenal. For a list of testimonia see MANSBACH (1982), p. 118-135.
930
PLAUTUS, Mil. 705-715; CICERO, Par. Stoic. 5, 39. See also CICERO, Clu.162.
931
HORACE, Serm. II, 5, 23-24.

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199

as the Roman Empire grew to its greatest size and the lucrative conquests
ended.932
However, legacy or inheritance hunting was not a monopoly of the Roman moral
underworld. The solicitous nephew courting his old and childless aunt or uncle is a
familiar figure in melodrama, satires and other literary genres even today.
Throughout the ages, childless elderly people with money have attracted flatterers,
mistresses and ‘dear friends’.933 What makes Roman society special was not the
existence of the phenomenon as such, nor perhaps the scale on which it actually
occurred, but the scale on which it was claimed by contemporary authors to occur.934
This was only possible because Roman testamentary habits greatly facilitated the
practices of potnetial captatores. Roman citizens were expected to make last wills
and to leave a share to their deserving friends. In the absence of near family – a case
that must have been common in the Roman demographic context – friends or distant
relatives were the most likely heirs. Yet as Champlin and Mansbach point out, the
evidence for captatio outside literary satire is meagre and the frequency with which
captatio occurs in Roman literature does not necessarily reflect social reality.935 We
know that captatio was considered a sign of the degeneration responsible for the
decline of moral rectitude, but this does not imply that the practice was particularly
frequent.
The heart of the problem is that captatio differed from amicitia only in its motives.
A captator only pretended to care, while a friend truly cared. The implication is that
it was next to impossible to determine with certainty when an heir was a captator or
not. The figure of the successful captator served as the pathological twin brother of
the friend who deservedly received the rich inheritance left by the man or woman
whom he had always respected and helped. Captatio, therefore, was inextricably
linked with the genuine moral obligation to bequeath shares and legacies to friends.

c) Abuse of power

Manipulation and abuse took on different and far greater proportions in the case of
unscrupulous political and military leaders. I have already mentioned the inheritances
from Rubrius from Casinum and L. Turselius.

932
Cf. SALLER (1982), p. 124; HOPKINS (1983), p. 239.
933
Cf. e.g. ISAEUS, 8, 37; DEMOSTHENES, Leoch. (XLIV) 63.
934
See e.g. PLINY, N.H. XIV, 1, 5.
935
MANSBACH (1992), p. 57-94; CHAMPLIN (1991), p. 96, 100-102.

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200

Cicero insinuated that Marc Antony had usurped by force numerous inheritances
from people who had been complete strangers to him.936
A famous but obscure case is that of the so-called ‘Turia’. Her parents had been
murdered in 43 and her fiancée had fled the conscription of the triumvirs. ‘Turia’
herself took refuge with her aunt. The will of her father seems to have appointed as
heirs ‘Turia’s’ fiancée and the husband of her sister, with a fideicommissum or a
legatum partitionis to hand over the bulk of the inheritance to Turia and her sister,
who under the lex Voconia were not allowed to be heirs. A few men whose names
are not recorded put pressure on Turia to challenge the will of her father on the
grounds that her father had been married cum manu. This would have implied that
her mother was legally regarded as her sister, i.e. as a child of her father who either
had to receive a share or had to be explicitly disinherited for the will to be valid. If
the will was invalid, ‘Turia’s’ sister would be excluded from her father’s inheritance
on the grounds that she was married cum manu, cutting her off from the inheritance
ab intestato. This would leave ‘Turia’ as sole heir, but it would also mean that Turia
would be placed under the legal guardianship (tutela legitima) of her gentiles, which
was precisely what the impostors claimed to be. In the end Turia withstood the
intimidation and managed to uphold the will of her father. We do not know what the
impostors threatened to do, but clearly, they occupied some position of power in the
new regime, which they hoped to use against ‘Turia’.937

d) Falsum.

The Roman custom of leaving shares and legacies to outsiders offered ideal
opportunities to forgers. Falsification of wills was severely punished as a public
crime against the entire community and was tried by a special court, the quaestio
perpetua de falsis instituted by Sulla.938 A famous case of forgery was that of the will
of L. Minucius Basilus. In his will, Basilus adopted his sister’s son M. Satrius and
appointed him first heir. Certain unnamed impostors intercepted the will and rewrote
it to their own advantage. To insure that the false will would not be challenged and
their treachery unveiled, they inserted as co-heirs to themselves Crassus

936
CICERO, Phil. II, 41: ui eiectis ueris heredibus. See also Phil. II, 40-41; 62; 74
937
cf. CIL VI, 37053 (= FIRA III, no. 69, p. 209-218). See CROOK (1986), p. 74; WATSON
(1967), p. 121-122; VAN OVEN (1949); GORDON (1977).
938
Cf. Dig. XXIX, 3, 2, pr.

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201

and Q. Hortensius Hortalus, two of the mightiest men in Rome at the time.939 In
another case, St. Oppianicus was accused of having forged the will of a certain
Asuvius, a rich young man from Larinum, whom he subsequently murdered.940 The
same Oppianicus was said to have interfered with the will of his mother in law
Dinaea by striking out a number of legacies.941

1.19 Tutela testamentaria.


The importance of guardianship in the demographic context of the Ancient World
is often ignored in general works about the Roman family. Saller estimates that about
a third of all children under fourteen had lost their father and were, therefore, placed
in the guardianship of others. These children would have represented about one sixth
of all property owners.942
The legal rules concerning the appointment of guardians were largely part and
parcel of the law of succession. In the absence of guardians appointed in a will
(tutores testamentarii), the nearest paternal blood relatives (proximi agnati) – or in
the case of freedmen their patroni – were appointed legal guardian (tutor legitimus).
In the absence of agnati, guardianship went to the gentiles. The lex Atilia (probably
210 BCE) created the possibility of a tutor datus appointed by the praetor in the
absence of agnati and gentiles.943
Guardianship over boys ended automatically at the age of fourteen, but women
remained in guardianship for their entire life. As far as tutela testamentaria and
tutela data were concerned such guardianship had largely become an empty box by
the time of the Late Republic. Tutela legitima over women, however, kept most of its
ancient force until a law of the emperor Claudius effectively abolished it.944 Valerius
Flaccus was able to appeal to his tutela legitima over a certain Valeria, who had died
intestate, to claim her inheritance on the grounds that her marriage cum manu with a
certain Sextilius Andro had been invalid because it had not been

939
CICERO, Off. III, 73; VALERIUS MAXIMUS IX, 4, 1.
940
CICERO, Clu. 36-39.
941
CICERO, Clu. 41.
942
SALLER (1994), p. 189-190.
943
On the types of tutela and their historical development see WATSON (1967), p. 114-130.
944
See mainly DIXON (1984); WATSON (1967), p. 146-154. Cf. CICERO, Mur. 27.

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202

approved by her legal guardians.945 The impostors who threatened Turia tried to
pass as her tutores legitimi in order to gain effective control of her and her property
(cf. supra p. 200). The attempt failed, but their desire to do so indicates that the
position would have given them effective control over Turia and her property.
By far the most common type of guardian was the tutor testamentarius. A testator
had a large freedom of choice in appointing the guardians he liked for his children or
his wife in manu. Tutela testamentaria was considerably more simple and flexible
than tutela legitima. Testamentary guardians were not obliged to offer sureties and
any tutor testamentarius could act alone, whereas tutores legitimi had to act
collectively.
When a testator appointed more than one testamentary guardian for his children,
one or more of these took the daily administration of their pupil’s interests upon
themselves (the tutores gerentes), while the other remained honorary tutores who
could be called upon if necessary.946 We can see a clear distinction in the case of
young P. Iunius between the tutores gerentes M. Iunius (the boy’s uncle) and P.
Titius (an amicus of the boy’s father) on the one hand and the honorary guardian M.
Claudius Marcellus (of praetorian rank) on the other. Interestingly, the boy’s tutores
gerentes co-operated with the boy’s stepfather C. Mustius, who had not been
appointed guardian by Iunius’s father. When Verres tried to extort a huge sum of
money from the boy with the aid of his partner in crime L. Rabonius947, C. Mustius
and the boy’s tutores gerentes were the first to deal with the matter. They
subsequently took the initiative by contacting Claudius Marcellus to put pressure on
Verres.948 We find the same Marcellus as guardian of the young Heius of Lilybaeum
in Sicily. The Claudii Marcelli had been important patrons of the island since
generations, but they did not reside there. He can hardly have been expected to
administer his pupil’s affairs on a daily basis and must have been

945
CICERO, Flacc. 84-86. See CROOK (1986), p. 72-73; FABRE (1981), p. 312; WATSON
(1967), p. 21.
946
VAN OVEN (1948), p. 507-509; KASER (1955) I, p. 307. WATSON (1967), p. 138 does not
believe that such an official distinction existed under the Republic. See also Fragm. Vat. 304. Dig.
XXVI, 28, 4 (Ofilius) indicates that the matter was still debated in Caesar’s time, implying that the
distinction had until then been more a practical one, than a formal one.
947
Not Habonius as in some manuscripts, see NICOLET (1966-1974), p. 1002.
948
CICERO, 2 Verr. I, 135. Note that Rabonius too was appointed tutor by the boy’s father.

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203

appointed tutor because of his social and political influence.949 We may assume a
similar motivation in the case of Cicero’s appointment as guardian of young T.
Pinnius, the son of an important businessman in the East.950
The appointment of guardians in a will was an important social responsibility of
every testator. A man who died leaving a will in which no arrangements were made
regarding the guardianship of his children could be termed intestatus.951 Conversely,
it was both an honour and a burden (a munus) to be appointed guardian in a will.952
The man who was thus honoured was morally obliged to accept the appointment and
to be honest and loyal in its fulfilment.
The relation between a guardian and his pupil was governed by bona fides.
Consequently, the actio tutelae was an actio bonae fidei and a condemned guardian
became infamus. The nature of the actio tutelae as an actio famosae testifies to the
degree to which a man’s prestige and social position depended on the way he
performed his duties as a guardian.953 According to Aulus Gellius, the duties of
guardianship (officia tutelae) ranked second in the order of personal obligations in
the mos maiorum, immediately after and almost on a par with the duties owed to
parents.954
To accept an appointment as guardian implied commitment of a man’s fides in the
sense of social credibility. Fides itself – as we have seen – determined a man’s
reputation (existimatio), which in turn determined his social position. A close
connection existed, therefore, between the duties of guardianship on the one hand
and the social position of the guardian on the other. The fact that a testator appointed
someone as guardian of his children constituted a vote of confidence in that person’s
fides, thereby confirming his reputation and social position.955

949
CICERO, 2 Verr. IV, 37.
950
CICERO, Fam. XIII, 61. On Pinnius and his relation with Cicero see DENIAUX (1993a), p. 540-
541.
951
SALLER (1994), p. 183-193.
952
On tutela as a munus see WATSON (1967), p. 103-105; VAN OVEN (1948), p. 493-495.
953
Cf. CICERO, Rosc. Com. 16 (iudicium priuatum summae existimationis et paene dicam capitis);
Caec. 7; N. D. 74; Off. III, 70; Top. 42; GAIUS IV, 62; 182.
954
GELLIUS V, 13. On the expression officia tutelae see CICERO, 2 Verr. I, 94.
955
Cf. SALLER (1994), p. 200. See also Dig. 2XXVI, 10, 4, pr.-1; 9, pr.; CIL VI, 2210.

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204

When we look at the persons who were commonly appointed tutor, it appears that
near male relatives were the most obvious choice. When a testator spurned a near
relative in favour of outsiders, it was considered an insult to the man in question and
one that his personal enemies immediately seized upon. Cicero, for example, used it
against Gellius Poblicola, a supporter of P. Clodius, who testified against P. Sestius.
Gellius’s nephew (sister’s son) Postumius had neglected to appoint him tutor of his
children while numerous others – including non-relatives – were appointed
guardian.956 Magius had instituted his nephew young C. Oppianicus as heir in the
second degree. The unborn child with whom his wife was pregnant at the time was
instituted heir in the first degree. However, Magius ostentatiously neglected to
appoint St. Oppianicus, (father of the heir in the second degree) tutor of the unborn
child. Cicero seized upon this fact as proof of Magius’s suspicions of St.
Oppianicus’s crimes.957 According to Cicero, Magius’s ill treatment of St.
Oppianicus was quite common. The man was generally considered so depraved that
none of his relations by marriage or blood had ever appointed him tutor.958
However, demographic models show that about a third of all minor children had
no uncle or older brother to qualify as guardian.959 A person’s best and most loyal
friends were in that case the most obvois choice.960 Cicero was guardian and heir in
the second degree of T. Pinnius’s son. The testator’s choice expressed his
familiaritas with Cicero and Cicero’s acceptance of the appointment indicated his
commitment to Pinnius to continue their amicitia after his death in the person of
Pinnius’s son.961 The children of C. Valerius Triarius were also placed under the
guardianship of Cicero, who afterwards expressed his sincere affection for Valerius
and his children to Atticus.962 Cato was guardian of young Lucullus (Ponticus’s
son).963 In turn, Cato put his own son

956
CICERO, Sest. 111. See NICOLET (1966-1974), p. 898-903; BENNER (1987), p. 160-161 on
Gellius’s identity.
957
CICERO, Clu. 34. On the family relations see MOREAU (1983).
958
CICERO, Clu. 41.
959
SALLER (1994), p. 196-197.
960
Cf. Dig. XXVII, 1, 36, pr. (Paulus): the amicissimi and fidelissimi.
961
CICERO, Fam. XIII, 61.
962
CICERO, Att. XII, 28, 3.
963
CICERO, Fin. III, 9; Att. XIII, 6, 2. Lucullus also recommended his son to Cicero, although he
does not seem to have appointed Cicero tutor.

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205

in the guardianship of (among others) Cicero and Atticus.964 Verres was tutor of
C. Publicius Malleolus’s son, but abused his position to rob the boy of 2.5 million
sesterces. In his oration against Verres, Cicero invokes the ghost of Malleolus
returning from Hades to demand Verres’s fulfilment of his duties as guardian,
comrade and friend (officia tutelae sodalitatis familiaritatisque).965
The appointment of close relatives and relations by marriage did not exclude
amici. As a rule, more than one tutor was appointed. This offered ample scope for a
testator to appoint both relatives by blood and marriage and amici. P. Iunius
appointed at least four guardians over his son, among whom was his brother M.
Iunius. The boy’s paternal uncle handled his young nephew’s interests together with
the boy’s stepfather and another guardian, P. Titius, whose relations with P. Iunius
are unknown. Of the two other tutores, L. Rabonius had been a business associate of
P. Iunius, while M. Claudius Marcellus can only have been the family’s patron or
amicus maior.966 In his letter of recommendation for his pupil T. Pinnius, Cicero
referred to the boy’s other tutores without explaining their relationship with T.
Pinnius.967 Verres had to answer for his actions as guardian of young Malleolus to the
other tutores.968 Sulla appointed several of his friends as tutores of his son.969 Caesar
appointed a large number of tutores in case a child would be born to him
posthumously, among whom were several political amici such as Marc Antony and
Brutus Albinus and many others who were later involved in the assassination of the
dictator.970
The degree to which it was customary to choose guardians among one’s amici is
apparent from the exemption granted to the members of a number of large collegia
under the Empire from the obligation to accept testamentary guardianships from non-
relatives. The members of other collegia were granted the privilege of exemption
only towards non-members.971 If the appointment of non-relatives had been
exceptional, such an exemption would have been irrelevant.

964
CICERO, Att. XIII, 6, 2.
965
CICERO, 2 Verr. I, 90-94.
966
Cf. CICERO, 2 Verr. I, 130-156. See WATSON (1967), p. 136-137.
967
CICERO, Fam. XIII, 61.
968
CICERO, 2 Verr. I, 92.
969
PLUTARCH, Pomp. 15, 3.
970
APPIAN, B.C. II, 143; DIO XLIV, 35, 2-3.
971
Dig. XXVII, 1, 17, 2-3; XLI, 3.

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206

There was a close connection between the appointment of guardians and the
institution of heirs and legatees. The case of T. Pinnius illustrates that tutores could
be appointed heir in the second degree. Caesar also chose some close amici both as
tutor and heir in the second degree. The famous causa Curiana mentioned above
concerned a man who had been appointed both tutor to an unborn son and heir in the
second degree.972 Sulla gave legacies to all the friends he had appointed as guardians
of his son.973 The jurist Paulus later asserted that amici who had been appointed tutor
often received a legacy to thank and honour them.974

1.20 Quantitative importance of the officia testamentaria.

a) Shares and legacies.

Amici came after near family in the order of claims on a person’s inheritance, but
they seriously competed with cognates who were not relatives in the first or second
degree. Childlessness was not rare in the Roman demographic context. Comparative
research suggests that about 20% of all married men died without leaving children
behind, while another 20% died leaving only a daughter. Clearly, the potential
importance of inheritances to amici was considerable.975 To estimate the actual
aggregate value of the inheritances and legacies awarded to amici, however, is much
harder.
According to Dio, Augustus instituted the 5% tax on inheritances (uicesima
hereditatum) to finance retirement bonuses for veterans. Near family (probably to the
sixth degree) were exempted, implying that the tax was mainly levied on shares and
legacies to amici. Hopkins estimates the yearly amount needed at 65 million
sesterces, which would imply a total value of the inheritances and legacies given to
amici of 1,300 million sesterces. Hopkins rightly rejects this figure as too high to be
credible. Duncan-Jones estimates the cost of the bonuses at only 43 million. This
would imply a tax base of ‘only’ 860 million but even this figure is

972
CICERO, De orat. I, 180; Brut. 144-145; 194-198; Top. 44. See also WATSON (1971), p. 44.
973
PLUTARCH, Sul. 38, 1; Pomp. 15, 3.
974
Dig. XXVII, 1, 36, pr. see also PERSIUS 2, 12-13.
975
See HOPKINS (1983), p. 99-107. See also Saller’s simulation of the Roman kinship universe
(SALLER (1994), p. 43-73). See also PAVIS D’ESCURAC (1978), p. 285-286.

206
207

too high to be credible. We must assume, therefore, that other revenues existed
that are not mentioned by Dio. 976
However, Dio’s account is useful in that it indicates that the total value of
inheritances and legacies to amici was at least big enough for the five percent tax to
be the single most important revenue needed to finance the bonuses. So the actual
annual ‘turnover’ of shares and legacies to friends must have amounted to several
hundreds of million sesterces.
On the micro-economic level, we are somewhat better informed. In 43, Cicero
claimed to have received 20 million sesterces’ worth of legacies and inheritances
from friends in the course of his life. If we assume 40 years of active life during
which Cicero received these legacies and inheritances, we arrive at the (incredible)
average of 500,000 sesterces annually. Marc Antony is said to have inherited much
more, albeit (dixit Cicero) through force and intimidation.977 According to Plutarch, a
legacy of 360,000 sesterces laid the foundations for Cicero’s fortune early in his
life.978 In 59, the old philosopher Diodotus left him about 100,000 sesterces.979 In the
ten years between 54 and 44, Cicero received at least one inheritance or legacy from
amici a year (with the exception of 53 and 49). One of these – the inheritance left by
the Puteolean businessman Cluvius – contained, besides large sums in cash and
silverware an insula with shops in Puteoli yielding a total revenue of 100,000
sesterces a year, which Cicero bought from his co-heirs.980 A legacy in 51 from an
unknown testator brought in 256,000 sesterces.981 Another businessman, L.
Cossinius, left him a legacy of at least 200,000 sesterces in 45.982 An inheritance in
48 brought in enough to sustain

976
DIO LV, 25, 5. HOPKINS (1983), p. 243; HOPKINS (1984), p. 124-125. DUNCAN-JONES
(1994), p. 36. Goldsmith assumes that the one- percent tax on auctions instituted by Augustus served the
same purpose and estimates the amount that had to be raised yearly by the uicesima hereditatum at 50
million, implying a total tax base of 1, 000 million sesterces. (GOLDSMITH (1987), p. 53-54.
977
CICERO, Phil. II, 40. On Cicero’s inheritances see SMUTNY (1951-1952); BOREN (1961-
1962).
978
PLUTARCH, Cic. 8, 2.
979
CICERO, Att. II, 20, 6.
980
CICERO, Att. XIII, 45, 2-3; 46, 3-4; 37a; XIV, 9, 1; 10, 3; 11, 2; XVI, 2, 1; 6, 3. On Cluvius and
his relation with Cicero see DENIAUX (1993a), p. 480-482; ANDREAU (1983); RAUH (1986), p. 22-
23.
981
CICERO, Att. VI, 5, 2.
982
CICERO, Att. XIII, 46, 4. Cicero ‘delegated’ the legacy to his brother. A letter written one year
later gives the amount of the debt: 200, 000 sesterces (CICERO, Att. XV, 20, 4). On Cossinius and his
relation with Cicero see DENIAUX (1993a), p. 485-487; D’ARMS (1981), p. 69, 89.

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208

Cicero’s credit.983 The share he received of the inheritance left by Fufidius, a


nobleman from Arpinum, yielded nearly 30,000 sesterces.984 In 44, Cicero sold his
share (one eighth) in a building he had inherited for 47,500 sesterces, which seems to
have been below its market value.985 Consequently, in the ten years between 54 and
44 Cicero must have received annually an average of at least 100,000 sesterces and
probably much more. This is far below the 500,000 sesterces we inferred from the 20
million sesterces Cicero boasted to have received in 43, but it is still a very
considerable sum.
What proportion did the income from inheritances and legacies represent of
Cicero’s total income? In his Paradoxa Stoicorum Cicero claims that his property
yielded a yearly revenue of only 100,000 sesterces.986 However, this figure is
incompatible with what we know of both Cicero’s expenditure and his property. In a
letter to Atticus, Cicero wrote that his possessiones uectigales covered his minimum-
expenses.987 Cicero’s total patrimony is usually estimated at approximately 10 to 13
million sesterces, most of which was in real estate. However, a considerable portion
of this consisted of non-productive property. His house on the Palatine was worth 3.5
million sesterces. His villa in Tusculum was worth 500,000 sesterces, while the villa
in Formia was worth 250,000 sesterces. Both latter sums refer only to the buildings
on the estates and do not comprise the value of the land and the gardens.988 So non-
productive property appears to have comprised half or more of Cicero’s patrimony,
leaving approximately 5-6 million worth of productive property. Property yielded a
certain, but not excessive, revenue well below 10%, so Cicero’s main source of
income must have lain well below 500,000 sesterces. Everything indicates, therefore,
that Cicero’s average income from the inheritances from his amici represented as
much as a fifth or more of his yearly income.
Cicero was no exception in this respect. Cornelius Nepos claimed that inheritances
were a major source of income for Atticus.989 Pliny’s letters

983
CICERO, Att. XI, 2, 1.
984
CICERO, Att. XI, 13, 3; 14, 3; 15, 4. On the Fufidii and their relation with the Cicerones see
DENIAUX (1993a), p. 501-503.
985
CICERO, Att. XV, 26, 4.
986
CICERO, Par. Stoic. 6, 49. See also SHATZMAN (1975), p. 407; FRIER (1978); SMUTNY
(1951-1952); BOREN (1961-1962).
987
CICERO, Att. XII, 25, 1.
988
Cf. SHATZMAN (1975), p. 407; CARCOPINO (1947) I, p. 91.
989
NEPOS, Att. 21, 1.

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209

mention several inheritances among which was one of 1.1 million sesterces and
another of 900,000 sesterces, and a legacy of 50,000 sesterces. In the course of the
fifteen years during which he wrote his letters, Pliny must have received
considerably more than 2 million sesterces worth in this way.990
Augustus claimed to have received 1.4 billion sesterces worth of inheritances and
legacies in the last twenty years of his life alone. Hopkins rejects this figure as
incredibly high because it would represent approximately 10% of the state income
(as estimated by the same author).991 However, legacies and inheritances to an
emperor cannot be measured by ordinary standards. The 1.4 billion was clearly not in
cash. This sum represented the total estimated value of estates, insulae, works of art,
libraries and so forth. Herod the Great alone left 40 million sesterces to Augustus in 4
BCE, besides large amounts of gold and silver bullion and precious clothes.
Augustus ceded the inheritance, but the case illustrates the size that inheritances to
emperors could reach.992 Tiberius inherited 400 million sesterces from Cn. Lentulus
the augur.993 Nero received as much from Claudius’s freedman Narcissus.994

b) Guardianships.

If approximately one sixth of all property owners were orphaned children in tutela
and approximately one third of these had no near male relatives, then only about 5.5
% of all property was under the control of paternal amici as guardians.995 However,
this relatively low figure is somewhat misleading for two reasons. Firstly, the
appointment of near relatives as guardians did not exclude amici and given the habit
of appointing a plurality of tutores, we can safely assume that most if not all of
underage property owners had amici paterni as guardians. Secondly, the same
demographic simulation would indicate that about 80% of all forty-year-old men had
minor children for whom they were expected to appoint tutores in their will. The fact
that only a minority of these

990
Cf. DUNCAN-JONES (1982), p. 25-27; PAVIS D’ESCURAC (1978), p. 283-285.
991
SUETONIUS, Aug. 101, 3; HOPKINS (1983), p. 237-238, n. 48; contra CHAMPLIN (1989b), p.
160-161: ‘the sum is astounding but believable’.
992
JOSEPHUS, Ant. XVII, 8, 1; Bell. Iud. I, 32, 7. Note, however, that Augustus may have
exaggerated by counting also the inheritances entrusted to him by fideicommissum that he scrupulously
and invariably paid out (SUETONIUS, Aug. 66, 4).
993
SENECA, Ben. I, 27; SUETONIUS, Tib. 49, 1.
994
DIO XL, 34.
995
Cf. SALLER (1994), p. 48-65, 189-190.

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210

guardianships became effective does not detract from either the obligation of the
testator to appoint guardians or from the honour of being appointed guardian in a
will.
When the emperor Claudius made the acceptance of testamentary guardianships
legally enforceable, the law excused those who had already three other guardianships
to manage.996 However, the provision did not prevent persons from being appointed
tutor by more than three testators. We can assume, therefore, that a notable was
usually mentioned simultaneously in several testaments as guardian and was often
effectively testamentary guardian of several unrelated children. Cicero was tutor
simultaneously of Pinnius’s, Cato’s and Valerius Triarius’s children while being in
no way related to any of their fathers. A. Clodius Apollonius from Drepana seems to
have been guardian of several unrelated pupils simultaneously.997 Marcellus was
probably tutor simultaneously of both P. Iunius filius and young Heius. The role of
guardian (effective and potential), therefore, was an integral part of the social
personality of a notable, whose reputation (existimatio) could be measured by the
number of testamentary guardianships with which he was entrusted.

1.21 Purpose and function of the beneficia / officia testamentaria.

a) Gratification and networking

It would be a platitude to say that last wills are meant to pass property from one
generation to the next. But why was a Roman testator so eager to leave legacies and
shares of his inheritance to amici? According to Seneca, mentioning a friend in a will
was the purest and most disinterested officium imaginable, since the testator could
not hope for a counter-favour. It was the ultimate proof, therefore, that feelings of
gratitude (gratia) and the desire to reward beneficia were sincere and deeply
human.998 But is this true? Did the custom of honouring and rewarding friends,
protégés and protectors in a will really reflect a culturally cherished sincere
gratitude?
It has virtually become a commonplace among scholars to interpret the many
inheritances and legacies left to Cicero and other orators as

996
Dig. XXVII, 1, 3
997
CICERO, 2 Verr. II, 140; IV, 37.
998
SENECA, Ben. IV, 22, 1.

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211

‘payment’ for their services in court.999 However, in fact, we have not one single
case on record of a defence in court being paid by a legacy or inclusion in an
inheritance.1000
The officia testamentaria were part of the set of favours and gifts that held
reciprocity relations together. If we may believe Quintilian and Asinius Pollio,
Liburnia’s son justified his institution of Gallio as heir by referring to the obligation
that he felt to repay Gallio’s past services.1001 Cicero briefly explains why A.
Cluentius inherited from P. Aelius (while a relative of Aelius received nothing!) by
claiming that Cluentius had ‘deserved’ the inheritance.1002 A passage in the Digest
distinguishes between inheritances from parents or freedmen that were quasi debitum
and inheritances, legacies and gifts from others that were ob meritum.1003 There is not
the slightest indication in any of these cases that a defence in court had provoked the
institution of the external heir. Therefore, to interpret all cases in which someone
received a legacy or a share as an indication that the beneficiary had defended the
testator in court is to take for granted what remains to be proved.1004
Of course, many lawyers and orators – among whom in the case of P. Sulla also
Cicero – sold their services, but the patronus mercennarius did not wait for the death
of his clients to pocket his fee. He expected immediate (and discrete) payment, if
necessary in the form of an interest-free ‘loan’. How could the venal lawyer know
that he would not die first? How could he be sure that his ‘client’ would honour the
deal? When would this payment finally come? The private and secret character of
Roman wills, which could be changed whenever the testator wished, made them
unsuitable for the arrangement of postponed payments. Since the venal lawyer
demanded immediate payment, these were precisely the

999
See e.g. FRANK (1933), p. 393-395; BOREN (1961-1962), p. 18-19; MICHEL (1962), p. 539;
GARNSEY & SALLER (1987), p. 155; contra see SMUTNY (1951-1952); DAVID (1992), p. 137-145.
1000
Cf. DAVID (1992), p. 139. Contrary to Carcopino’s beliefs, there is nothing to indicate that
Cicero was Cluvius’s lawyer. The sole fact that Cicero knew Cluvius had contracts with 5 Asian cities is
insufficient evidence (CARCOPINO (1947), p. 177-179; cf. infra p. 214 on the case).
1001
QUINTILIAN, Inst. IX, 2, 34-35: omnia meritissimo uolo et debeo.
1002
CICERO, Clu. 162: Habiti merito fecit.
1003
Dig. XVII, 2, 9-10. See also CHAMPLIN (1991), p. 13. See MARTIAL VII, 66; PLINY, Epist.
II, 20, 11; APULEIUS, Apol. 23.
1004
See DAVID (1992), p. 140: ‘La recherche d’un lien aussi mécanique entre plaidoirie et héritage
procède d’une lecture très réductrice des rapports entre client et patronus.’

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cases in which a legacy or a share of an inheritance was not likely to be given to


the patronus because the payment he had already exacted from his client
extinguished all obligations the latter would have had towards his court-patronus.
This is not to say that Roman orators did not benefit substantially from their
services in court. We can, on the contrary, be confident that court-patroni received
numerous inheritances and legacies from their former clients since a defence in court
was the prime beneficium that a friend and protector could bestow. The fundamental
feature of Roman advocacy was that lawyers and orators were expected to have a
personal fides-relationship with their ‘clients’. Their services in court were performed
as beneficia and although, as we have seen, a beneficium was by nature free, it
created gratia and had to be reciprocated. Therefore, a defence in court put people
under an obligation of gratia that could and should be remembered in a will. But
although shares and legacies were the ultimate officium that could be given in
response to past beneficia, other officia, such as financial or political support,
recommendations or mandates, also qualified. Especially when the client was a man
(or woman) of means and influence, the obligation to reciprocate could in the end
easily have been met by other services, so that the court-patronus could be satisfied
by a small symbolic share or legacy. Conversely, the very fact that a court-patronus
had a fides-relation with his client implied that the latter was entitled to yet more
beneficia. A defence in court – at least ideologically – was only one among many
services provided.
We can also be quite confident also that oratory was effective in legacy hunting.
Tacitus may have hinted to this fact in his praise of oratory when he stressed the
concourse of the childless and wealthy to the young and gifted orator:. ‘What is more
pleasing to a free and freeborn soul, born for honourable pleasures, than to see one’s
house always filled and frequented with a concourse of illustrious men? And to know
that they come not for your money or childlessness or official position but for you.
On the contrary even, in many cases the childless and wealthy and powerful come to
you in your youth and poverty to commend their cases or those of their friends to
you.’1005 However, as we have seen, the legacy

1005
TACITUS, Dial. 6, 3: quid enim dulcius libero et ingenuo animo et ad uoluptates honestas nato
quam uidere plenam semper et frequentem domum suam concursu splendidissimorum hominum? idque
scire non pecuniae, non orbitati, non officii alicuius administrationi, sed sibi ipsi dari? ipsos quin immo
orbos et locupletes et potentis uenire plerumque ad iuuenem et pauperem, ut aut sua aut amicorum
discrimina commendent.

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213

hunter manipulated the rules of amicitia by pretending to conform to them and his
reward was always uncertain.
However, to interpret shares and legacies as means of payment is to obscure the
difference between ‘payment’ and ‘advantage’. The services provided in personal
fides-relations were never specified in advance. They had to be provided as the need
occurred. Thus a defence in court could be one of them, a loan, a gift or a legacy
another. Although both court-patron and client derived advantages from their fides
relation with each other, there was no payment in the sense of a specified exchange.
What distinguished the patronus mercennarius was not that he benefited from his
services, but that he provided these to anybody in exchange for immediate payment.
The characteristic behaviour of inheritance hunters confirms the status of legacies
and shares as returns for gifts and services that the testator enjoyed during his
lifetime. Their services were like investments that they hoped would pay off when
their ‘dear friend’ died. When Domitius Tullus died without leaving anything to his
captatores, many reproached him for being an ingrate.1006
Valerius Maximus claims that Lucullus Ponticus had a right to a share of Q.
Caecilius’s inheritance because Caecilius owed his position and fortune to Lucullus’s
dedication and generosity.1007 According to Cornelius Nepos, Atticus was Caecilius’s
first heir because he had always courteously endured Caecilius’s difficult character,
thus retaining his uncle’s goodwill (beneuolentia). Nepos’s comment is illuminating:
‘he thereby reaped the fruits of his piety’.1008 Neither in Atticus’s nor in Lucullus’s
case was Caecilius’s inheritance an isolated windfall. During his military command
in Asia, Lucullus received important inheritances, reputedly thanks to his exceptional
liberalitas and the great favours he had shown to people (pro tua eximia liberalitate
maximisque beneficiis).1009 Atticus received numerous inheritances in the course of
his life thanks to his bonitas, a quality of character implying helpfulness to
friends.1010

1006
PLINY, Epist. VIII, 18; SHERWIN-WHITE (1966), p. 46-471. See also MARTIAL IV, 56; V,
39; VI, 62; IX, 8; 48.
1007
VALERIUS MAXIMUS VII, 8, 5: promptissimo studio maximaque liberalitate et honestum
dignitatis gradum et amplissimum patrimonium consecutus.
1008
NEPOS, Att. 5, 1: quo facto tulit pietatis fructum.
1009
CICERO, Flacc. 85.
1010
NEPOS, Att. 21, 1. On bonitas see CICERO, Rab. Post. 3; SENECA, 4, 40, 2: Nec enim ideo
beneficium nouum reicere debeo, quia nondum prius reddidi. Accipiam tam libenter, quam dabitur, et
praebebo me amico meo exercendae bonitatis suae capacem materiam.

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214

We don’t know why these anonymous testators left shares and legacies to Atticus
and Lucullus, but Caecilius was a notorious usurer and Valerius Maximus’s version
of the story leaves no doubt that Lucullus’s support had played a crucial role in
Caecilius’s business ventures. This brings us to the inheritances and legacies from
other businessmen. The negotiator Vennonius left an important legacy to Caerellia, a
highly placed lady who was particularly befriended to Cicero.1011 Cicero inherited
from the businessman L. Nostius.1012
Q. Fufidius was a notable from Arpinum who was also a famous usurer. Both
Cicero and his brother were close with the Fufidii. Fufidius the faenerator, or his son,
was a military tribune of Q. Cicero in Asia. Cicero himself furthered the career of
Fufidius’s son as a local magistrate in Arpinum. When Q. Fufidius died in 48, he left
a share of his inheritance to Cicero.1013
The two most cited cases of businessmen leaving a share of their inheritance to
upper class friends are those of Cluvius from Puteoli and M’ Curius from Patrae.
Cluvius was a wealthy financier in Puteoli who died without leaving children.1014 He
divided his inheritance between three heirs. One share went to a certain Hordeonius,
who belonged to another important family of Campanian businessmen. Hordeonius
appears to have been Cluvius’s main heir, since he was entrusted with the burial rites
(the sepulcra). Presumably, Hordeonius had co-operated with Cluvius during his
lifetime. 1015 The other two heirs were Caesar and Cicero. Cluvius had acted as
financial intermediary for Cicero and Pompey in the late fifties investing their money
in interest bearing loans. Cicero had written a letter of recommendation for Cluvius
in 51 to the governor of Asia regarding his claims on five cities that were deeply in
debt to him

1011
CICERO, Fam. XIII, 72. On Caerellia see DENIAUX (1993a), p. 473-474; AUSTIN (1945-
1946); HATZFELD (1919), p. 122; SHACKLETON BAILEY (1977a) II, p. 451.
1012
CICERO, Fam. XIII, 46. On Nostius see DENIAUX (1993a), p. 531-532; TREGGIARI (1969),
p. 216.
1013
CICERO, Att. XI, 13, 3; 14, 3; 15, 4. On the Fufidii from Arpinum and their relations with
Cicero see DENIAUX (1993a), p. 501-503; NICOLET (1966-1974), p. 882-883; SUOLAHTI (1955), p.
116.
1014
On Cluvius’s background and business activities cf. supra p. 164-166. On his will: CICERO, Att.
XIII, 45, 2-3; 46, 3-4; 37; XIV, 9, 1; 10, 3; 11, 2; XVI, 2, 1; 6, 3.
1015
On the Hordeonii see ILLRP 135, 706, 714, 719; HATZFELD (1912), p. 44; CÉBEILLAC-
CERVASONI (1998), p. 114, 165, 188-190, 248.

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215

and (via Cluvius) to Pompey.1016 This commendatio clearly illustrates how


Cluvius’s business interests were furthered by Cicero’s influence. We do not know
what his relations with Caesar were, although it may have had something to do with
Caesar’s confiscation of the totality of Pompey’s goods, including, therefore, the
money Pompey had invested through Cluvius. Cicero was amply rewarded for his
recommendation(s?). Cluvius inheritance was worth millions of sesterces.
M’ Curius was a negotiator in Patrae. His most important patron was Atticus.
Atticus recommended him to Cicero and the latter stayed with him on his return
journey from Cilicia in 50. Contrary to what has been asserted by some scholars,
Curius had no previous relations with Cicero.1017 Curius seized the occasion to
initiate an amicitia with Cicero, rewriting his will in the presence of Cicero and his
brother. In the new will, Atticus and Cicero were instituted heirs to small portions of
Curius’ inheritance. Curius entrusted his new will to Cicero as a pledge for his
sincerity and loyalty.1018 The hospitality which Curius offered to Cicero and his new
will marked the start of a very advantageous connection for Curius. Cicero wrote
several letters of recommendation for his new found friend to the successive
governors of Achaea. In a letter written to Cicero a few years later, Curius extols his
relationship with Cicero: ‘whatever we are, whatever we have, whatever regard we
enjoy, we have it all through you’.1019
Business backgrounds on a lower level can be discerned in the case of Cyrus who
had been Cicero’s favourite architect for years and who left Cicero (and Clodius) a
share of his inheritance in 52.1020 Alexio, who had been Cicero’s doctor, seems to
have left him a share in 44.1021 Given the

1016
CICERO, Fam. XIII, 56.
1017
Carcopino inferred from CICERO, Fam. XIII, 17 (a letter of recommendation for Curius written
by Cicero invoking their amicitia peruetus) that Cicero had been Curius’s ‘conseiller juridique’ for years
(CARCOPINO (1947) I, p. 179-180; followed by DENIAUX (1993a), p. 487-489 and DAVID (1992),
p. 139-140; cf. also HATZFELD (1919), p. 252). CICERO, Att. VII, 2, 3 shows that Atticus had
introduced Curius to Cicero. The case should warn us against taking the claims of amicitia in the letters
of recommendation too seriously (compare the case of Salvatore in BOISSAEIN (1969), p. 381 and
BOISSEVAIN (1974), p. 150-151).
1018
CICERO, Att. VII, 2, 3. Cf. supra on the ‘exact’ shares. The ‘pledge’ was mainly symbolic since
Curius could at any time write a new will annulling the existing one.
1019
CICERO, Fam. VII, 29, 1: at illa nostra praedicatio quanti est, nos quod simus, quod habeamus,
quod homines existimemur, id omne abs te habere.
1020
CICERO, Mil. 46-48. On Cicero’s relation with Cyrus see Att. II, 3, 2; Q. fr. II, 2, 2.
1021
CICERO, Att. XV, 1, 1; 2, 4; 3, 2.

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216

professional nature of both men’s services, we can be fairly certain that both Cyrus
and Alexio had been paid for these .
In one case, a business friendship led to the patron leaving a share to his amicus
minor. After her first husband Fulcinius had died, Caesennia relied on Sex. Aebutius
to handle all important business affairs. Cicero emphasised that Aebutius was wholly
unrelated to Caesennia and was nothing more than a uoluntarius amicus. Caesennia
appointed Aebutius heir for 1/72, thus sealing a long-standing business friendship in
the course of which Aebutius had provided services to Caesennia as procurator.1022
The case of M’ Curius shows that leaving a share or a legacy in a will could be
much more than a last reward in exchange for favours received. Curius consciously
used his will as a strategic weapon to extend and strengthen his personal network. He
was not alone in developing this strategy. According to Cicero, Sassia effectively
bound her stepson C. Oppianicus to herself by both marrying him to her daughter and
leaving him a large share of her fortune.1023 It is clear that testaments fitted (along
with Donations, loans and so forth) in the general strategies developed by testators to
optimise their political and social position.
The advantage of being appointed heir or legatee in a will was not necessarily of a
material nature. The number of wills in which a person was mentioned was a
measure of his social and political position. It reflected the gratia he (or she)
commanded and so contributed to his (or her) symbolic social and political capital.
Consequently, even a very small share or an honorary appointment could efficiently
gratify the appointed heir or legatee.
Curius efficiently obliged Cicero to himself by leaving him only a small part of his
inheritance.1024 An unknown supporter of Antony tried to do the same in 44. Atticus
was asked as a witness to make sure Cicero knew that he was genuinely mentioned in
the will. Cicero saw through the manoeuvre but was embarrassed nevertheless:
‘(how) could I not praise those very persons who employed you as a witness’1025

1022
CICERO, Caec. 17.
1023
CICERO, Clu. 179: ut eum nuptiis adligatum simul et testamenti spe deuinctum posset habere in
potestate. Cf. MOREAU (1983) on Sassia’s marriage with St. Oppianicus. On Sassia’s influence see
also DIXON (1983), p. 99.
1024
Literally ‘one fortieth’, but cf. supra p. 195 on the case.
1025
CICERO, Att. XIV, 14, 5: poterone eos ipsos non laudare qui te obsignatorem adhibuerunt?

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217

The case of Antony’s supporter may throw some light on a peculiar incident
related by Valerius Maximus. Valerius ‘Heptachordus’ – who almost certainly
should be identified as L. Valerius Flaccus (pr. 63) – is said to have appointed
Cornelius Balbus as sole heir. Both men had been enemies for many years and
Balbus had been involved in the prosecution of Valerius for a capital crime (most
likely the trial de repetundis he had to face after his governership of Asia). According
to Valerius Maximus, Flaccus’s lust for danger and adventure had induced him to
honour the very person who had most dangerously assaulted his reputation. The
assertion is not very convincing. Perhaps, either Balbus had forged Flaccus’s will or
Flaccus had later in his life felt the need to attach Balbus securely to him and his
family. 1026
However, the potential of gratification through testaments went beyond the
immediate interests of the testator himself. The fact that the forgers of Minucius
Basilus’s will wrote the names of Crassus and Hortensius as co-heirs indicates that
the institution of powerful heirs could be an effective way to insure that a will would
be respected.1027 The appointment of politically powerful or influential persons as
heirs and legatees could, therefore, be a way to secure the inheritance for the main
heirs. Tacitus explicitly cites this motivation to explain the large legacies left by
Annaeus Mela to Nero’s favourites Tigellinus and Cossutianus Capito.1028 It was
probably for this reason as well that Babullius left one-twelfth of his fortune to
Caesar and one-third to Paconius Lepta, since Lepta feared that he would not be
allowed by Caesar to keep his share.1029 It may also have been the real reason behind
the institution as heir that Antony enjoyed in the wills of complete strangers,
although naturally the state of our sources can neither validate nor contradict this
hypothesis.1030
Testaments offered a way to transfer personal obligations due to the testator to his
first heirs, usually his children. The testator could thereby hope to bequeath to his
heirs as much as possible of the personal network he had built up through the
years.1031 Shares and legacies to amici thereby

1026
VALERIUS MAXIMUS VII, 8, 7; Schol. Bobb., p. 33 (ed. Hildebrandt (Teubner)). See also
DAVID (1992), p. 140-142 for another explanation.
1027
CICERO, Off. III, 73; VALERIUS MAXIMUS IX, 4, 1.
1028
TACITUS, Ann. XVI, 17.
1029
CICERO, Att. XIII, 48, 1.
1030
CICERO, Phil. II, 40-41; 62; 73.
1031
Cf. for a similar use of last wills in 18th century colonial Buenos Aires MOUTOUKIAS (1992),
p. 907-910.

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218

functioned as a means of transfering gratia owed from one generation to the next.
This function manifests itself most clearly in the tutelae testamentariae. Thus we see
how the testator T. Pinnius transferred his amicitia with Cicero to his son by
honouring Cicero through an appointment as heir in the second degree and tutor of
young Pinnius. He thereby placed Cicero under an obligation that the latter could
only fulfil by supporting Pinnius’s son, which in fact we see happening when Cicero
recommended the boy’s interests to the governor of Bithynia-Pontus.1032
We can see the system in operation even in some cases when no tutela was
involved. Thus when Cicero wrote a letter of recommendation for his co-heir Nostius
Zoilus, we may infer that the latter had inherited his patron’s amicitia with
Cicero.1033 Conversely, the Digest shows that first heirs could be entrusted with the
care of the testator’s amici. Although the perspective is different, the object is the
same: to perpetuate the testator’s personal network.1034
The strategic character of testaments explains why a Roman testator usually wrote
several wills in the course of his life, without being forced to do so because of the
birth or death of children. In his oration for Archias, who was accused of having
usurped Roman citizenship, Cicero defended his client by pointing out the numerous
wills he had made according to Roman law.1035 Moreau notes that testators often
changed their wills on their deathbed.1036 In a letter mentioning the death of C.
Fannius, Pliny deplored the fact that Fannius had died leaving only an old will, in
which the persons with whom he was most intimate at the time of his death were not
mentioned.1037 Sometimes the inevitable haste with which a dying person tried to
make his ultimate last will caused accidental omissions or worse. Cicero assured his
brother that a certain Felix had tried to change his will on his deathbed in order to
leave them one-twelfth of the inheritance, but had mistakenly resealed the old will
instead of the new.1038
Hopkins strongly emphasises the strategic possibilities of wills to cement personal
alliances: ‘repeated gifts of legacies across kin boundaries

1032
CICERO, Fam. XIII, 61. See supra p. 204 for the case.
1033
CICERO, Fam. XIII, 46.
1034
Cf. Dig. XXXIII, 1, 19, 1. See MICHEL (1962), p. 562.
1035
CICERO, Arch. 11. See also MARTIAL V, 39.
1036
MOREAU (1986), p. 181. See TRACY (1980), p. 399.
1037
PLINY, Epist. V, 5, 2.
1038
CICERO, Q. fr. III, 9, 8.

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219

must have created an elaborate network of social obligations, operating inside and
between generations.’1039 Testaments helped to sustain and recreate networks of
personal loyalty, trust and solidarity. As such, they helped to create political, social
and economic security outside the restricted family circle. The officia testamentaria
thus played an important role in the personal networks of friends and family. They
increased cohesion within the network and contributed to the perpetuation of
network-configurations from one generation to the next.

b) Ostentatio.

Obviously, when a testator wanted to use his testament as a means to consolidate


his personal network in his own lifetime, the contents of the will could not be kept
secret. The presence of witnesses could serve this purpose, as in the case of the
unknown supporter of Antony who invited Atticus to witness his will, in which
Cicero was heir for a small share. There was, however, another reason why a testator
could prefer to keep the contents of his will secret. Making a proper will was the duty
of any homo liberalis. In his will, a testator displayed himself as he wanted to be
seen. Popular belief claimed that a testament was like a mirror reflecting the true
character of a person. Consequently, a testator could use his testament to enhance his
social status by displaying his liberalitas. A person’s testament served as a symbolic
platform on which the honour of the testator and his friends and family were
displayed. 1040
When Terentia spread suspicious rumours about Cicero’s will because she had not
been invited as witness, Cicero’s replied by saying that anyone who wished was free
to read his will, while Terentia herself had only invited witnesses whom she knew
would tell only what she wanted to be known.1041
Moreover, a testament allowed a person to continue his social display after his
death, not only through the legacies and shares he distributed to his amici, but also
through acts of euergetism that he commissioned to his heirs.1042 The interest of the
public in the contents of wills was enormous.

1039
HOPKINS (1983), p. 246-247. See also CHAMPLIN (1991), p. 21-27.
1040
PLINY, Epist. VIII, 18, 1. On last wills as public manifests see also GAIUS II, 181; Dig.
XXXVII, 11, 1, 4; MARTIAL XII, 73; HORACE, Serm. II, 5, 51-57; CHAMPLIN (1989b);
CHAMPLIN (1991), p. 24; MOREAU (1986), p. 182; VEYNE (1978), p. 36.
1041
CICERO, Att. XII, 18a, 2; XIII, 25, 2. On Terentia’s own will: Att. XI, 16, 5; 25, 3. 23, 1; 21, 1;
22, 2; XII, 18a, 2; 19, 4; 20, 2; 28, 1.
1042
DUNCAN-JONES (1982), p. 64.

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220

The testator knew before he died that he would be the centre of attention and that
the contents of his will would determine the way in which he would be remembered.
Thus a person’s last will was a monument in itself, erected by the testator so that he
would be remembered in a particularly splendid way.

1.22 Excursus 1) Women as heirs.


The lex Voconia forbade women to be the heirs of citizens belonging to the prima
classis and stipulated that a legacy could never exceed the shares left to the heirs,
which implied that, for instance, an only daughter could never receive more than half
of her father’s inheritance. Later, Roman jurists extended the application of the lex
Voconia to inheritances ab intestato (ratio uoconiana).1043
The lex Voconia, which was probably intended to bar women from attaining any
position of influence1044, was very unpopular. The law was considered to be savagely
unfair towards daughters and at a very early date, ways were developed to evade it.
The legatum partitionis offered some solution by creating a pseudo-share of 50%
minus a symbolic sum (normally of 100 nummi) which was formally a legacy of a
specified part of the inheritance. Debts and claims were divided by stipulationes
between heirs and legatees; The former promised to give a share of the debts owing
to the testator that they collected to the legatees, the latter promised to pay a share of
the debts owed by the testator to the heirs.1045
But the legatum partitionis still required that men were appointed as heirs and the
sum of their shares had be at least as big as the biggest legacy. When a man had only
daughters or granddaughters, he was forced to appoint an outsider as heir. The only
way out was offered by the fideicommissum, by which the formal heir was explicitly
asked to hand over the inheritance (or part of it) to another party, in this case a
daughter or granddaughter. The inheritance was thus entrusted to the fides of the heir.
Fideicommissa were not bound by any of the formal rules or legal limitations that
applied to testaments, but until the time of Augustus they

1043
cf. ROTONDI (1962), p. 283-284; WESEL (1964); WATSON (1971), p. 29-30, 35, 167-170;
SALLER (1994), p. 166-167; BERGER (1953), p. 561; CROOK (1986); DIXON (1984), p. 361, 367.
1044
Cf. GELLIUS XVII,6,1.
1045
WATSON (1971), p. 128-132.

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221

were wholly unenforceable so that the testator had to rely on the fides of the
formal heir.1046
Cicero had received a fideicommissum in favour of Publilia. He fulfilled the
fideicommissum but married the girl for her dowry.1047 However, fideicommissa were
risky. Despite strong social pressure, fides-obligations were legally unenforceable.
Cicero relates the story of Q. Fadius Gallus, who wished to leave his fortune to his
only daughter through a fideicommissum to P. Sextilius Rufus. When Gallus had
died, Sextilius convened a meeting with his amici and asked them what he should do.
Since he had sworn an oath to uphold the Voconian law, he was afraid to carry out
Gallus’s last wish unless his friends advised him otherwise. Sextilius had chosen his
friends well. They advised that the girl should receive only as much as would have
been allowed under the lex Voconia. The maximum legacy Fadia could receive was
half the inheritance minus a symbolic sum of 100 nummi, which is what Sextilius
paid her. Cicero – who was present as a young man – was scandalised, but many
among Sextilius’s amici were members of the highest nobility and none of them
thought Fadia should be given more.1048 Given the social and political position of
Sextilius’s councillors we can safely conclude that at least an important part of the
nobility still supported the Voconian law in the early first century BCE. A man who
wished to disregard a fideicommissum entrusted to him could easily get away with it.
The Roman law of the Late Republic was not favourable to fideicommissa in
general, since they were manifest evasions of legal prohibitions. The knight P.
Trebonius inserted a clause in his will demanding that his heirs swear an oath to give
half of what they received to his brother A. Trebonius, who had been proscribed by
Sulla and had thereby lost his right to inherit. Only one of the heirs, a freedman of P.
Trebonius, took the oath. The other heirs appealed to the praetor Verres, claiming
that the condition imposed was against the law. Not only did Verres agree and grant
them possession of the inheritance without the oath, but he excluded the freedman
from the inheritance on the grounds that he had broken Sulla’s law on proscribed
persons.1049

1046
See CROOK (1986); WATSON (1971), p. 35-39; VAN OVEN (1948), p. 548-554; SALLER
(1994), p. 166-174; .
1047
PLUTARCH, Cic. 41, 4.
1048
CICERO, Fin. II, 55. See WATSON (1971), p. 36.
1049
CICERO, 2 Verr.I, 123-124. See WATSON (1971), p. 37-38; FABRE (1981), p. 278.

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The very fact that fideicommissa were common despite the fact that they were
legally unenforceable illustrates the social importance of fides. To entrust a man a
fideicommissum was the ultimate expression of trust, to fulfil it the ultimate
expression of loyalty. At the same time, the origin and the evolution of
fideicommissa show that the legal limitations on testaments were not always in
accordance with public opinion. Fideicommissa clearly show the strength and depth
of the informal rules and norms regulating the making of wills. Testators preferred
the risk that their last wishes be ignored to dying intestate and leaving their property
ab intestato, safely in the hands of their daughters but at the same time imposing on
them the strict regime of a tutela legitima and not gratifying any of their friends and
relatives.

1.23 Excursus 2) Testamentary adoptions.


There is still a lot of disagreement about testamentary adoption and the end of the
debate is not nearly in sight. 1050 There is not a single juridical source available
informing us on this type of adoption. In fact, the practice is totally incompatible
with what we know of the procedure of legal adoptions per adrogationem.1051 Non-
legal sources on the other hand clearly indicate that testamentary adoptions were
quite common in the Late Republic and Early Empire.1052
Those who do not believe in the authenticity of testamentary adoption, interpret
the known cases of such adoptions as instances of condiciones nominis ferendi,
whereby a testator instituted a person as his heir on the condition that he changed his
name to that of the testator. Condiciones nominis ferendi were quite common and we
have several examples of people changing their names in order to inherit.
Until recently, the debate has focused on the case of Octavian’s adoption in
Caesar’s will, which was validated by a special lex curiata, but the case is clearly
exceptional and, therefore, inconclusive.1053 However, Salomies has shown that a
small number of sons known to have been

1050
On testamentary adoption cf. SHACKLETON BAILEY (1976), p. 92-99; SALOMIES (1992),
p. 7-10; CHAMPLIN (1991), p. 144-146. On adoptions as family strategy in general see also CORBIER
(1991), p. 63-76.
1051
See WATSON (1967), p. 88-90.
1052
For a list of all adoptions attested in the Late Republic see SHACKLETON BAILEY (1976).
1053
See SCHMITTHENER (1952), p. 44-48; SHACKLETON BAILEY (1976), p. 93-95.

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223

adopted by will not only assumed the name of the testator, but also changed their
filiation and tribe. Both were the official parts of a person’s name that could not be
changed by a private decision.1054
The solution may lie hidden behind the later imperial prerogative to validate
adoptions that were legally void. The Republican censors had the right to change a
person’s tribe.1055 Did they also have the right to change his filiation, i.e. his agnatio?
Whatever the regularity of the lex curiata that sanctioned Octavian’s adoption by
Caesar, the case does show that the comitia curiata had the authority to do so. The
possibility that it did so on more than one occasion, cannot, therefore, be excluded
In the absence of further documentation, however, both possibilities cannot be
more than speculative hypotheses. Nevertheless, testamentary adoption was clearly
accepted socially as a legitimate way to produce a ‘son’ who could be first heir and
continue the name and family cult. As such, they had their place in the strategy of
testators trying to perpetuate their social rank, fame and fortune.1056
Syme notes that testamentary adoption usually had recourse to close relatives, as
in the case of Atticus and Rabirius Postumus, who were both adopted by their
maternal uncles.1057 It seems, therefore, that the procedure was mainly a way to
consolidate and rearrange family relations.

1054
Note, however, that Cornelius Balbus was adopted inter uiuos by Cn. Pompeius Theophanes,
while the fasti consulares mention him as L. Cornelius L. f. Balbus (CICERO, Balb. 57; cf.
SHACKLETON BAILEY (1976), p. 111; BROUGHTON (1951-1986) II, p. 374).
1055
See LIVY XL, 51, 9.
1056
See TAYLOR (1949), p. 34-35.
1057
SYME (1980), p. 428-430. On Postumus’s adoption see SHACKLETON BAILEY (1976), p.
33-34, 127. On Atticus cf. supra p. 189-190.

223
224

224
225

Part III. The organisation and pursuit of


economic activities.

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226

In the second part of the book, I focused on the influence of amicitia on the
allocation of resources through the ethics of gift-exchange, financial support and
testamentary habits. We have established that amicitia served as an important
alternative passageway for the flow of scarce resources, but also that it influenced the
allocation of resources through markets considerably and that its effects far exceeded
the ‘informal’ sector of the economy. Solidarity networks of amici provided security
against setbacks and crises and thus helped to support the financial system at large.
The third and last part the book deals with the organisation of economic activities
in the broadest sense of the word. Economic action is purposeful action directed
towards the acquisition or enlargement of want satisfying scarce resources.
Purposeful action is usually also organised action and in the case of complex or
important purposes this organisation usually comprises several actors. The mode of
organisation used, however, varies considerably. As we already showed in our
introduction, the paradigm of the modern ‘corporate firm’ has only a limited scope in
pre-industrial economies. I analyse here the use (and utility) of ‘friends’ to organise
economic action, focusing first on the concepts of agency and partnership as overt
forms of organisation and then turning to the use of influence as a covert form of
organisation.

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227

PROCURATIO, MANDATUM AND NEGOTIORUM GESTIO.

The first chapter of this third part is devoted to one of the most difficult problems
of Roman law: agency by independent persons. Only two actiones are known to have
covered these arrangements, the actio mandati and the actio negotiorum gestorum,
but our sources mention three types of agents: the mandatarius, the procurator and
the negotiorum gestor. I try to show that mandatum never lost its character of
officium amicitiae becoming reduced to a mere formal contract. I further argue that
the original procurator was a friend or kinsman and that amici continued to act as
each other’s main procuratores even though freedmen as well often continued to
serve their former masters as minor procuratores. After that, I deal with the basic
principle of indirect representation, which was never abandoned in Roman law.
Contrary to common opinion, I argue that the arrangement was not necessarily
disadvantageous to Roman businessmen. Finally, we will try to assess the possible
economic scope of friends as agents.

1.1 Legal framework.


1058
a) Mandatum.

According to the ancient grammarians, the word mandatum was etymologically


derived from manum-dare. Isidorus from Sevilla concluded that a mandatum was
originally concluded by a handshake.1059 There is little reason to doubt the etymology
as such, but its interpretation is ambiguous. Nothing indicates that the manus-as-hand
lay any more or any less at the etymological origin of the term mandatum as of so
many other important legal concepts in which the notion manus occurs, such as

1058
On mandatum as a contract see WATSON (1961); WATSON (1965), p. 147-156; ARANGIO-
RUIZ (1949); MICHEL (1962), p. 168-197; AUBERT (1994), p. 105-110; ANGELINI (1971), p. 90-91;
KLAMI (1989).
1059
ISIDORUS, Orig. V, 24, 20. See MICHEL (1962), p. 170-171; FREYBURGER (1986), p. 165
(p. 136-138 on the symbolic value of a handshake); ERNOUT & MEILLET (1951), p. 681, art. mando.

227
228

manumissio, or mancipatio, or the marriage cum manu. Hypothetically, it is


perfectly possible that a handshake accompanied acts involving manus, but, if this
was so, it represented only the outward form of the agreement. The hand symbolised
the almost religious concept of manus that expressed ‘power over’. So manum-dare
could mean as much as ‘to give into the power/hands of someone’ or (alternatively)
‘to empower someone’.
The original mandatum was much older than the legally enforceable contract
mandatum. The oldest attestation of mandatum as a contract dates from the year 123
BCE. Since the actio mandati belonged to praetorian law, the legal recognition of
mandatum as a contract cannot be much older that the middle of the second century
BCE.1060 Nevertheless, mandata are quite common in Plautus, long before mandatum
was recognised as a contract and, even later the term was frequently used in a non-
legal sense.1061
Mandatum was an informal consensual contract. Watson and Arangio-Ruiz
believe that not even an ‘intention to contract’ was required for the actio mandati to
be applicable and that the contract was held to exist even without the parties’
intention to enter into contract. The issue is important because it would indicate that
the contract of mandatum could arise through the a posteriori interpretation of
informal (but highly moralised) social interaction, without there being any need for a
specific agreement with contractual intents and consequences ex ante.
A necessary condition for the validity of a mandatum was that it was free. Once
remuneration in any form was agreed upon, the service fell under the contract of
hired labour (locatio conductio (operis / operarum)). The jurists interpreted the
gratuitas-rule so strictly that the mandatory was not even allowed to benefit
indirectly from the services he provided, for instance, in the case of a mandate for
buying goods of which he was co-owner. Interestingly, however, we see that in the
Early Empire the imperial justice system (the cognitio extra ordinem) gradually
recognised salaria or honoraria for mandatories, without the jurists ever giving up
the principle that a mandatum had to be free.1062

1060
Rhet. Her. II, 19. WATSON (1965), p. 147.
1061
Cf. e.g. PLAUTUS, Asin. 118-121; Epid. 130-132; CICERO, Att. IV, 6, 3; V, 2, 1; VI, 1, 12; 22.
See WATSON (1961), p. 11-12.
1062
MICHEL (1962), p. 168-197; WATSON (1961), p. 102-105; VAN OVEN (1948), p. 291;
KASER (1955) I, p. 482; GIRARD (1911), p. 584. See Dig. XVII, 1, 1, 4; 1, 35-36; XIX, 5, 13pr.; 5, 14;
5, 22; JUSTINIAN, Inst. III, 26, 13; GAIUS III, 162. The gratuitas-rule is implied in CICERO, Rosc.
Am. 111.

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229

Roman law did not recognise the principle of direct representation between free
persons.1063 Mandatum created obligations between the mandator and the mandatory,
but not between the mandator and any third party with whom his agent (the
mandatory) had done business in his name. In case of dispute, the mandatory was
personally liable for the contracts he had made. He could use the actio mandati,
however, against the mandator to get redress. Conversely, only the mandatory could
sue the third party with whom he had entered into a contract in the mandator's name,
while the mandator could use the actio mandati against the mandatory to receive all
the benefits of the contracts made in his name. Watson summarised the situation
aptly when he wrote: 'Usually the object of mandate is that the agent should enter
into contractual relations with a third party on behalf of the principal.1064
As we will see later, the binding element in mandatum was fides and this was
recognised in law by the fact that the actio mandati was a iudicium bonae fidei.
Condemnation brought official infamia or social degradation upon the defaulting
mandator or mandatarius,1065 it was considered one of the severest punishments
possible in private litigation. An infamus was not allowed to be someone’s
representative in court (cognitor, procurator ad litem), or to be represented in
court.1066 Moreover, according to Cicero, the principal and his agent were not only
liable for fraud (dolus) but also for negligence (negligentia).1067

b) Negotiorum gestio.

The actio negotiorum gestorum was a residuary actio with a very wide scope in
cases of agency. Berger states that ‘the essential circumstance was that the gestor
acted without a mandate’.1068 The actio applied not only to the actual negotiorum
gestor, who acted without knowledge of his

1063
On direct representation by institores and magistri naues cf. supra p. 25-29.
1064
WATSON (1961), p. 78 (see also ibid. p. 78-84); VAN OVEN (1948), p. 292; NÖRR (1990-
1992).
1065
CICERO, Off. III, 70; N. D. III, 74; Top. 42; 66. See NÖRR (1990-1992), p. 303.
1066
GAIUS IV, 182.
1067
CICERO, Rosc. Am. 111-112. Modern scholars disagree on whether Cicero is to be believed.
See WATSON (1961), p. 195-216. Contra KASER (1955) I, p. 423-424; VAN OVEN (1948), p. 378-
382.
1068
BERGER (1953), p. 594. See also SEILER (1986), p. 247-248. On the actio negotiorum
gestorum in general see ARANGIO-RUIZ (1949), p. 19-43; WATSON (1965), p. 193-207; VAN
OVEN (1948), p. 371-374; KASER (1955) I, p. 489-492; 19JOLOWICZ (1939), p. 312-313; AUBERT
(1994), p. 110-112.

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230

principal, but also to the procurator omnium rerum, the curator and later even to
the institor.1069 Accordingly, Ulpianus claimed that the possibility of an actio
negotiorum gestorum lapsed when a general mandatum ad negotia gerenda was
given.1070 Conversely, Papinianus claimed that an actio negotiorum gestorum was
possible when an actio mandati was for any reason not possible.1071
The actio negotiorum gestorum was likewise a iudicium bonae fidei but, contrary
to the actio mandati, defaulting did not entail infamia. A necessary precondition for
the actio negotiorum gestorum was that the agent acted exclusively to the advantage
of the principal. If he derived any personal advantage from his gestio, the possibility
of an actio negotiorum gestorum lapsed.1072 The implication is that the services
provided had to be free of charge.1073

c) Procuratio.

The term procurare and its derivations procuratio and procurator – like the terms
mandare and mandatum – had a large extra-legal application. A procurator could be
anyone who took care of anyone or anything not belonging to him. Cicero and others
frequently use the terms procuratio (or variants) to denote political responsibilities or
to describe the care of the gods over the affairs of humans.1074 By far most
attestations of the term procurator denote anyone who takes care (procurare) of the
affairs of others, regardless of whether these affairs are economic, social, political or
religious. Long ago, Schlossman concluded that procuratio was at all times merely a
social institution and never a legal concept, but this thesis has long been
abandoned.1075
From a legal point of view, however, the historical development of procuratio is
hard to follow. There was certainly never any kind of an actio procurationis. But
then where does procuratio fit in? Which actio(nes) sanctioned the actions of
procuratores ?

1069
WATSON (1965), p. 193.
1070
Dig. XVII, 1, 6, 1
1071
Dig. III, 5, 31, 1: quia mandati uel depositi cessat actio, negiotum gestorum agitur.
1072
Cf. WATSON (1965), p. 201-203; ARANGIO-RUIZ (1949), p. 19-23; VAN OVEN (1948), p.
373-374.
1073
AUBERT (1994), p. 110-111.
1074
CF. BEHRENDS (1971), p. 224-225. See e.g. CICERO, Diu. 2, 7; Off. I, 185 (procuratio rei
publicae).
1075
S. SCHLOSSMAN, Der Besitzerwerb durch Dritte nach römischem und heutigem Recht. Ein
Beitrag zur Lehre von der Stellvertretung, Leipzig, 1881. See BEHRENDS (1971), p. 215-217. For a
status quaestionis see ANGELINI (1971), p. 1-16.

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231

We find two types of procuratores in our sources, on the one hand procuratores
acting under a general mandatum ad negotio gerenda, on the other hand,
procuratores (omnium rerum) who fell under the application of the actio negotiorum
gestorum. In the end only the procurator cui mandatum est – acting under a general
mandate – survived until the time of Justinian and the compilation of the Digest, with
a (potential) medley of interpolations as a result.1076

(i) Procurator mandatarius.


The relation between mandatum and procuratio is one of the most difficult
problems in the history of Roman law. Until recently, it was commonly held that a
legal mandate could originally only be given for specific actions, for example, to buy
or to sell specified goods. All references to general mandates in the Digest were
rejected as interpolations. Consequently, procuratores could not work under a
general mandate until at least the Early Empire. A date ante quem for the procurator
mandatarius is provided by Gaius’s Institutiones, which clearly mention the
procurator cui mandatum est.1077 Arangio-Ruiz and Watson concluded that general
mandates developed gradually until they finally received legal recognition in the time
of Julianus and Gaius.1078
However, some scholars, the first of whom was Solazzi, never accepted the
common rejection of the authenticity of early general mandates. Solazzi’s thesis had
few followers until Behrends and Angelini restated it in the early seventies. Both
scholars, along with Solazzi, hold that general mandates ad negotia gerenda were
legally possible from the very beginning of mandatum as a contract and that,
consequently, the procurator cui mandatum est existed since the middle of the
second century BCE.1079
The heart of the problem is that there are virtually no reliable legal sources
informing us of the nature of Republican procuratio. All fragments

1076
On the relation between mandatum and procurator see WATSON (1961), p. 36-60; ANGELINI
(1971), p. 87-111.
1077
GAIUS IV, 84. See also GAIUS III, 155 for a general mandate ut mea negotia geras. SERRAO
(1947), p. 155-160 tried to argue that this passage too was a later interpolation. However, see contra
ANGELINI (1971), p. 104-105; ARANGIO-RUIZ (1949), p. 55-57. Note, however, that the procurator
in question was a procurator ad litem, appointed to represent his principal in court.
1078
ARANGIO-RUIZ (1949), p. 44-78; WATSON (1961), p. 36-60.
1079
SOLAZZI (1922); ANGELINI (1971), p. 87-121 (see p. 1-15 for a status quaestionis);
BEHRENDS (1971), passim (esp. 215-216, 219-225, 247-274.

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232

of pre-classical and classical jurists on procuratio in the Digest are believed to be


thoroughly corrupted by interpolations. There are, however, a multitude of non-legal
texts from the Republic and Early Empire that link mandatum and procuratio.
These texts fall into two categories. The first category comprises those indicating
that mandates could be entrusted to procuratores. Thus Cicero claims that the
procurator of an estate received mandata, whereas the bailiff (uilicus) carried out
orders.1080 This category of texts is not very conclusive. The fact that a procurator
carried out specific mandates merely reflects his position as a free man and his
relation of fides with his principal. It does not imply that his position as procurator
depended on a general mandate ad negotia gerenda.
However, another category of texts appears to indicate that general mandates
existed and that those who received such mandates were thereby automatically a
person’s procuratores. As early as Plautus, i.e. before mandatum had received any
legal recognition, we find a general mandatum rerum.1081 Cornelius Nepos refers to a
mandatum ut tuearis that he explicitly links with a procuratio omnium
negotiorum.1082 Seneca mentions a mandatum curae patrimonii.1083 Mescinius Rufus
sent procuratores with a mandate to Greece to arrange the acceptance of the
inheritance left by his brother M. Mindius, which had been disputed by Mindius’s
widow, Oppia.1084
Traditionally the mandata mentioned in these texts are considered extra-legal
mandates, making the texts irrelevant for the legal development of procuratio. This is
obviously true for the passage in Plautus since mandatum as a contract did not yet
exist at this time, but it is not so easy to maintain for the other texts.1085

1080
CICERO, De orat. I, 249: si qui fundus inspiciendus aut si mandandum aliquid procuratori de
agri cultura aut imperandum uilico est … See also CICERO, Fam. VIII, 9, 3; Ovid, Ars Am. I, 587-588.
1081
PLAUTUS, Cist. 719. See also Trin. 78.
1082
NEPOS, Att. 15, 3: in tuendo … tanta erat cura, ut non mandatum, sed suam rem uideretur
agere … Quo fiebat ut omnia Ciceronum, M. Catonis, Q. Hortensii, Auli Torquati, multorum praeterea
equitum Romanorum negotia procuraret. Ex quo iudicari poterat non inertia, sed iudicio fugisse rei
publicae procurationis.
1083
SENECA, Ben. IV, 27, 5
1084
CICERO, Fam. XIII, 26. Mindius or Mescinius was adopted, they remained brothers by blood
(see SHACKLETON BAILEY (1977b). On the case, see also COTTON (1978).
1085
On the Seneca passage see WATSON (1961), p. 50-51; ARANGIO-RUIZ (1949), p. 20-21.

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233

Angelini’s key argument to support the authenticity of early general mandates and
of the procurator mandatarius relies on a passage in the Digest in which Ulpianus
quotes the Augustan jurist Labeo. The passage indicates that Labeo discussed
procuratio under the heading of the iudicium mandati, in other words that he thought
the actio mandati applied to at least some cases of procuratio.1086
It is hazardous for a non-jurist, not versed in the intricacies of interpolation, to take
sides in a debate in which much depends on legal technicalities and on the way in
which interpolations are recognised and restored. Nevertheless, the model of Solazzi,
Angelini and Behrends model is clearly best in line with the evidence of non-legal
sources. The alternative would be to reject all these texts as irrelevant because the
mandates they mention might not be legal mandata. In the end, however, this
amounts to accepting all evidence in favour of a certain thesis while rejecting all the
evidence against it. This is a methodologically risky procedure requiring strong
persuasive arguments, which in my judgement are lacking. Consequently, I believe
that the existence of the procurator mandatarius should be accepted as early as the
second century BCE.

(ii) Procurator praepositus


However, procuratio cannot be wholly reduced to mandatum. Some of the most
common powers of procuratores could certainly not be the subject of mandatum.
Thus procuratores had the right to sue in the name of their principal. When they
accepted payment of money owed to their principal, the debt was automatically
extinguished, whereas in the case of a mandatum the debt legally remained until the
mandatarius had handed the money over to his principal. Procuratores could make
valid and binding debt-renewals (nouationes) in the name of their principals. By the
Flavian period at least (but perhaps much earlier) a principal could acquire property
directly through his procurator. Unlike mandatories, procuratores had to keep
accounts of their actions.1087 In his Topica, Cicero expressly distinguished mandatum
from procuratio, while numerous passages in legal sources show that quite often the
actio negotiorum gestorum rather than the actio mandati sanctioned procuratio.1088

1086
ANGELINI (1971), p. 101-102; 109-111; Dig. XVII, 1, 10, 8-10.
1087
BEHRENDS (1971), p. 274-297; ANGELINI (1971), p. 122-154; KASER (1974), p. 192-202;
WATSON (1961), p. 7-9.
1088
CICERO, Top. 42; 66. See ARANGIO-RUIZ (1949), p. 19-20.

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234

The existence of a second type of procurator may be deduced from a famous


passage in Cicero’s Pro Caecina, in which Cicero comments on the interdictum unde
ui. According to Cicero, the term procurator in the interdict applied to any free
person who committed violence in someone else’s name and not only to the one
‘who is called procurator in a legal sense (qui legitime procurator dicitur)’. The
latter is described as a procurator ‘of all goods of one who is not in Italy or who is
absent on state affairs; one who is almost a master, that is a proxy in another’s rights
(alieni iuris uicarius).’ The term of procurator in the interdict should then apply also
to, for example, tenants, neighbours, clients or freedmen. ‘Not because every man
who takes care of our affairs (qui negoti nostri aliquid gerant) is or is called a
procurator’, but for equity’s sake.1089
The term legitime and the peculiar style of the fragment, reminiscent of the formal
legal Latin used in laws, seem to indicate a legal statute regulating the powers of a
procurator. This hypothesis was first formulated by Naber in 1889, but was rejected
for many years until Behrends restated it strongly in 1971.1090
As we have seen, Behrends recognises the existence of the procurator cui
mandatum est from the beginning of mandatum as a contract. Besides the procurator
mandatarius he identifies a procurator omnium rerum whose legal existence
probably went back to the third century. Like Naber, Behrends proposes a link with
the lex Hostilia, which gave non-relatives the right to prosecute thieves on behalf of
absent citizens without for that matter identifying the lex Hostilia as the missing
‘statutory law’ on procuratio. In Behrends’s view, both laws sprang from a common
logic: to protect the rights and property of absent citizens, i.e. in the third century,
mainly soldiers.
This special and primary function of the procurator explains his special powers
and duties. The basic principle was that the principal should only benefit from his
procurator’s actions and not incur loss. Therefore,

1089
CICERO, Caec. 57: de liberis autem quisquis est, procuratoris nomine appelletur; non quo
omnes sint aut appellentur procuratores qui negoti nostri aliquid gerant, sed in hac re cognita sententia
interdicti uerba subtiliter exquiri omnia noluerunt. Non enim alia causa est aequitatis in uno seruo et in
pluribus, non alia ratio iuris in hoc genere dumtaxat, utrum me tuus procurator deiecerit, is qui legitime
procurator dicitur, omnium rerum eius qui in Italia non sit absitue rei publicae causa quasi quidam
paene dominus, hoc est alieni iuris uicarius, an tuus colonus aut uicinus aut cliens aut libertus aut quiuis
qui illam uim deiectionemque tuo rogatu aut tuo nomine fecerit.
1090
NABER (1889), p. 388-390; BEHRENDS (1971), p. 228-235. See also WATSON (1965), p.
194-195. Contra see SERRAO (1947), p. 11-12; ANGELINI (1971), p. 28-30.

234
235

the procurator omnium rerum could accept payments and pay debts, but could not
sell or otherwise alienate things belonging to his principal, with the exception of
perishable goods. Thus the figure of the procurator omnium rerum was modelled on
that of the tutor or curator furiosi. Like tutores and curatores, the procurator
omnium rerum had the right to sue in legis actiones. According to Behrends, the
appointment (praepositio) of a procurator omnium rerum took place through an
informal commendatio rerum et famae and his actions were sanctioned by the actio
negotiorum gestorum.1091
According to Behrends, the procurator omnium rerum existed until well into the
imperial age, but at a very early stage the procurator mandatarius and the procurator
omnium rerum grew closer. The procurator omnium rerum could only operate in
Italy, while the Late Republican aristocracy and businessmen increasingly needed
procuratores to supervise their holdings in the provinces. On the other hand, the
increasing wealth of the elite in Italy, invested in dispersed properties throughout the
peninsula, necessitated the continuous use of procuratores even when the owners
were present in Italy. The praetor’s edictum perpetuum and its counterparts in the
provinces provided a solution by extending the powers of the procurator omnium
rerum to the procurator cui mandatum on the condition that the latter offered sureties
for his actions. Thus the old procurator omnium rerum was gradually supplanted by
the much more flexible procurator mandatarius. This process must have begun quite
early, since we hear of provincial procuratores in Africa as early as the late second
century BCE.1092 The evolution was greatly facilitated by the informal character of
mandatum, which could turn any kind of appointment into a mandate if necessary. In
the end the procurator omnium rerum lost its relevance, and the compilers of the
Digest replaced all references to it by elaborate descriptions such as procurator cui
generaliter libera administratio omnium rerum mandata est.

(iii) Negotiorum gestio – procurator gestor.


The relation between procurator and negotiorum gestor is not very clear either.
From a legal point of view, every procurator was certainly a

1091
On the powers of procuratores in general see ANGELINI (1971), p. 17-28, 41-49, 87-98;
BEHRENDS (1971), p. 239, 280-282, 297; APATHY (1979).
1092
Mentioned in the epigraphically attested lex agraria of the Tabula Bembina, possibly a copy of
the lex Thoria agraria from 111. See CRAWFORD (1996), p. 113-180; WATSON (1965), p. 196-197;
BEHRENDS (1971), p. 220.

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236

negotiorum gestor for all acts not subject to the actio mandati, but was every
negotiorum gestor by definition a procurator? Or, to put it differently, could
someone be procurator without knowledge of his principal?
In Cicero’s Brutus, the protagonist is described metaphorically as a uoluntarius
procurator for Atticus, demanding the fulfilment of a promise made to his principal
while Atticus himself had declared that he would not demand delivery as long as his
debtor was not ready. Cicero (as a character in the book) answered Brutus that he
would demand sureties that Atticus would make no further claims (satisdatio amplius
non peti) in return.1093 Watson explains the passage as the oldest attestation of the
procurator ad litem.1094 However, Cicero does not say that he would contest Brutus’s
demand in court (litis contestatio) and the satisdatio itself does not imply a trial.1095
Several passages in the Digest also indicate the existence of procuratores who were
not appointed, but who could nevertheless take legally valid decisions and actions,
sanctioned by the actio negotiorum gestorum.1096
Angelini, therefore, distinguishes the procurator mandatarius, acting on the basis
of a general mandate, from the procurator gestor acting without a mandate and being
legally merely a negotiorum gestor. Only at the time of Justinian and the compilation
of the Digest would the title of procurator have been reserved for agents with a
general mandate, leading to the idea of the falsus procurator who ‘offered himself
for the affairs of another’ (qui se alienis negotiis offert’. Kaser on the other hand,
does not believe that every negotiorum gestor was automatically a procurator until
well after the end of the classical period of Roman law. According to him, a
procurator had to be appointed in some way – either by mandate or in some other
way.
Nevertheless, Kaser warns us to beware of forcing too strict a typology on Roman
law. What mattered to a Roman jurist was not who or what a procurator was from a
legal point of view, but which actions fell under the actio mandati or the actio
negotiorum gestorum.1097 It is unlikely, therefore, that they would have cared much
about the exact terminological distinction between procurator and negotiorum
gestor. When we look at non-legal texts, we see that the figure of the negotiorum
gestor is virtually

1093
CICERO, Brut. 17.
1094
WATSON (1965), p. 200-201. See contra ANGELINI (1971), p. 184-185.
1095
On satisdationes amplius non peti cf. infra p. 263.
1096
Cf. ANGELINI (1971), p. 154-165.
1097
KASER (1974), p. 187-191.

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237

non-existent, whereas procuratores are omnipresent. In the light of the passage in


Cicero’s Brutus, we may conclude that negotiorum gestores were commonly denoted
by the term procurator and this habit may well have slipped into legal texts.

1.2 Mandatum, procuratio and amicitia.

a) Fides and liberalitas.

Mandatum, negotiorum gestio and procuratio were all three alike based on fides:
personal trust and loyalty between agent and principal. Legally, this is manifest in the
bona fides character of the actio mandati and the actio negotiorum gestio. The kind
of fides constituting the bond between agent and principal was far from being merely
a juridical concept. Their mutual commitment surpassed the strict legal contractual
liability of the partners. Both parties committed their fides in the sense of social
credibility and thereby pledged their honour and social personality. A person who
was found guilty of default in an actio mandati lost omnis honestas – ‘all honour and
respectability’.1098 Procuratio constituted a position of trust based on fides,
comparable, according to Cicero, to societas, mandatum or fiducia.1099 In other
words, fides in contractual agency, although legally outlined, was not a different
concept from the fides that expressed the intimate bond between partners in the
informal diffuse relationship of amicitia.
Being essentially free services, mandates and some procurationes were
expressions of liberalitas. Cicero classified liberalitas in two categories, one
comprising generosity – liberalitas through money – and one comprising services –
liberalitas through personal effort.1100 Mandate and some procurationes clearly
belong to the latter kind of liberalitas. According to Cornelius Nepos, Atticus was
very meticulous in carrying out the mandates entrusted to him because he felt that
promises that could not be fulfilled were not ‘liberal’ but frivolous.1101

b) Mandatum.

No contract was so emphatically and unambiguously associated with amicitia as


mandatum. Paulus asserted: ‘there is no mandatum unless it

1098
Cf. CICERO, Rosc. Am. 111-115; NEPOS, Att. 15, 3.
1099
CICERO, Top. 42.
1100
CICERO, Off. II, 52-54
1101
NEPOS, Att. 15, 3.

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238

is free, because it springs (originem trahit) from personal duty (officium) and
friendship, and payment is opposed to duty (officium).’1102 The words originem trahit
are mostly interpreted as indicating an historical evolution whereby mandate
gradually evolved from a non-enforceable act of friendship (or other close personal
relationship) to a formal contract.1103 However, it seems more likely, given the
permanence of the necessarily free nature of mandatum, that Paulus referred to the
social reality behind the contract of mandatum in his own time rather than to an
historical development.1104 The crucial distinguishing feature of the contract of
mandate, viz. that it had to be gratuitous, derived, according to Paulus, from the
acceptance of a mandate as an officium amicitiae. Pleading in favour of this reading
is that elsewhere Paulus explains commodatum in a similar way: although
commodatum was essentially a beneficium of the lender to the borrower, legally
enforceable obligations nevertheless arose.1105
According to Cicero, the reason why the actio mandati had dire consequences for
those who were found guilty of default was that the mutual fides of friends (uicaria
fides amicorum) was a necessary precondition for the mutual assistance without
which life was not possible.1106 A person who broke a mandate sinned against two
most sacred things: amicitia and fides. ‘Since no one gives a mandate, unless to a
friend, and no one confides in another, unless he thinks that person is trustworthy
(fidelem)’.1107 Indirectly, society at large was disturbed because a common protection
for all (omnium commune praesidium) was affected. Therefore, if a man thought he
could not bear the load of duty connected with a mandate, he ought not to accept
it.1108 Cicero’s approach to mandatum as a contract along these lines is very similar
to Paulus’s views.

1102
Dig. XVII, 1, 1, 4: mandatum nisi gratuitum nullum est: nam originem ex officio atque amicitia
trahit, contrarium ergo est officio merces.
1103
MICHEL (1962), p. 185-186 (see p. 168-197 in general). KIRSCHENBAUM (1987), p. 193-
196. On mandatum and friendship see also NÖRR (1990-1992); BÜRGE (1999), p. 128-139..
1104
See also in this sense BÜRGE (1999), p. 129.
1105
Dig. XIII, 6, 17, 3: Sicut autem uoluntatis et officii magis quam necessitatis est commodare, ita
modum commodati finemque praescribere eius est qui beneficium tribuit.
1106
CICERO, Rosc. Am.111.
1107
CICERO, Rosc. Am.112: nam neque mandat quisquam fere, nisi amico; neque credit, nisi ei
quem fidelem putat.
1108
CICERO, Rosc. Am.111-115.

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239

Both explain (and in Cicero’s case justify) the legal features of mandatum by
referring to the social reality behind it.

c) Procuratio.

The figure of the procurator has been much debated. It is obvious that different
types of procuratores existed side by side in the Late Republic and Early Empire.
We find both dependent freedmen and socially important amici operating as
procuratores. We find procuratores entrusted with the management of a single farm
and procuratores entrusted with the care of all a noble person’s patrimony next to
procuratores ad litem commissioned with representing their principal in a trial. All
of these were denoted by the term of procurator. I try to show in this section that
procuratio originated as an officium amicitiae and continued to be one, even though
freedmen often served their patrons as procuratores and even though clients (the
amici minores) usually received a salary for their services as procurator.

(i) The origin.


The origin of the procurator is lost in the depth of time. All scholars agree that the
figure of as such is considerably older that the actiones that later sanctioned his
actions. An important group of researchers, the most conspicuous among whom is
Serrao, has long insisted that procuratio originated within the tight group of the
Archaic Roman familia and had sprung from the habit of entrusting the management
of the entire family estate and fortune to a slave. This slave was often freed after a
while as a reward for his loyalty, but after his manumission he continued to do the
same work. This explains why there was originally no need for an actio to regulate
the relation between procurator and dominus. As a slave the former had no legal
capacities, while as a freedman he continued to be a part of the familia of his former
master and to be subjected to the potestas of the pater familias until the second
century BCE. In this view, the oldest type of procurator was the procurator
praesentis, with a freedman managing one or more country estates as archetype. His
duties were usually limited to management. Only in a much later phase would the
procurator as a legal representative have come to the fore.1109

1109
Cf. mainly SERRAO (1947), p. 1-9; WATSON (1961), p. 6-9; ARANGIO-RUIZ (1949), p. 8-
12; KASER (1970), p. 348-349; AUBERT (1994), p. 107.

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240

Another group of scholars locates the origin of procuratio in the need for a proxy
and protector of family and goods in the absence of the pater familias. This proxy
could not be a slave or a social inferior, but had to be at least of equal social status to
be able to offer the protection required. Le Bras, therefore, situated the original
procurator in the circle of amici. Watson notes that Cicero described the procurator
legitimus as someone who temporarily takes care of the affairs of another who is
absent. ‘This does not harmonise with the concept of a dominus freeing a slave so
that he could be his general agent, but it does suit the idea of one friend acting to look
after another’s affairs for a limited space of time.’1110
The need for a proxy in the absence of the dominus was discarded from the outset
as unimportant in Archaic Rome by Arangio-Ruiz: ‘La prima osservazione da fare è
che in condizioni primitivi di esistenza il bisogno ((di) soccorso da altri
nell’amministrazzione dei suoi beni o nella conclusione di questo o qual negozio
giuridico) era sentito molto meno che in tempi più progrediti.’ Since all property in
ancient Rome belonged in common to the family (ercto non cito), there would
always have been male relatives present to whom the family estate could be
entrusted.1111
Today, no scholar will assume so easily that private property did not exist in
Royal, let alone Early Republican Rome. The societas ercto non cito mentioned in
the Twelve Tables, which is often quoted as evidence for the community of family
property in early Rome, is an inevitable consequence of any inheritance system –
such as the Roman – in which all children receive an equal share of the
inheritance.1112 The very fact that the Twelve Tables mentioned an actio familiae
erciscundae testifies to the divisibility of property in the Early Republic. To conclude
from such an action the indivisibility of property before the time of the Twelve
Tables would require further strong evidence, especially in view of the fact that
nothing indicates that the Twelve Tables changed, rather than recorded, existing
custom in this crucial aspect of social life.1113 Such evidence is wholly lacking.
According to legend, Romulus distributed two iugera (half a hectare) of land to
each citizen (uiritim), not to each family. Such small plots may have been enough to
feed a (very) small household or nuclear family, but

1110
WATSON (1965), p. 195 (see also p. 193-195, note that WATSON (1961) still followed
Serrao!); CICERO, Caec. 57; LE BRAS (1922), p. 41-49, 58-59; BEHRENDS (1971), p. 224-225.
1111
ARANGIO-RUIZ (1949), p. 3.
1112
See in this sense e.g. GIRARD (1911), p. 575, n. 3.
1113
On the societas ercto non cito cf. infra p. 275-276.

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241

were by no means sufficient for the needs of an extended family.1114 Drummond


summarises his argument as follows: ‘it would be misleading to regard kinship as the
determining basis of Roman social organisation in the sense that such bonds
necessarily formed the overwhelmingly pre-eminent form of social categorisation. …
What must, therefore, be assumed is that already in the early period Roman social
relations were dominated by a nexus of informal and personal bonds of mutual
obligation broadly comparable to those familiar from the mid- and Late
Republic.’1115 Hesiod’s Works and Days clearly shows that in Archaic Greece a good
neighbour was valued more than distant family. Nothing indicates that the same did
not hold true for Archaic Rome.1116
The other cornerstone of the slaves-and-freedmen-as-original-procuratores thesis,
viz. that liberti continued to be under the absolute power of their patroni until at least
the late third century BCE, has been increasingly criticised over the past twenty
years. Mommsen held that manumission could only have consequences within the
Roman family itself. The slave became a libertus or cliens, but from the standpoint of
the state, his civil status did not change. He remained an outsider not entitled to its
protection.1117 Gradually, as the Roman state developed, freedmen would have
gained civil liberties. However, as late as the second century BCE, they could still be
termed serui, indicating that they continued to be under the authority of their
patroni.1118 The relation of a freedman to his patron was determined by obsequium.
According to Lambert, until the late second century, the concept would have
indicated the continued subjection of the freedman to his former master.1119
According to Fabre, the decisive wave of emancipation would have come from the
progressive circle around the Scipio family. The great leap forwards would have
been the edictum Rutilianum (ca. 118), which limited the rights of the patron to 50%
of the income of his freedman (the so-called societas Rutiliana) plus operae, on
condition that these had been sworn by the freedman. Around the middle

1114
VARRO, R.R. I, 10, 2; PLINY, N.H. XVIII, 7. See MOMIGLIANO (1989), p. 99-100;
DRUMMOND (1989b), p. 143-163.
1115
DRUMMOND (1989b), p. 154-155.
1116
HESIOD, Op. 342-353. See also GALLANT (1991), p. 158.
1117
MOMMSEN (1887) III, p. 58-59; LEMOSSE (1949).
1118
MOMMSEN (1907); TREGGIARI (1969), p. 266.
1119
LAMBERT (1934), p. 8-10.

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of the seventies BCE, the societas Rutiliana was replaced by a 50 % share for the
patron in the inheritance left by his freedman, provided the latter had not bought his
freedom and had no natural heirs.1120
Drummond and Brunt object that there is no indication that there ever existed a
class of half-free dependants in Rome. The Twelve Tables mention only free men
and slaves, neither half-free nor freedmen being mentioned as separate categories of
dependants.1121 Liberti only occur once in the Twelve Tables where it is stipulated
that the inheritance left by a freedman dying intestate and without children shall pass
to his patron or his patron’s children. However, the statute does not imply that the
patron had any power over the freedman’s property while he was alive. On the
contrary the very fact that a freedman had the right to bequeath his property to
whomever he liked, and the fact that the patron received nothing when there were
any surviving children (including adopted children), indicates that the patron had no
rights over his freedmen whatsoever. He merely served as the freedman’s proximus
agnatus, which in fact is quite logical since strictly speaking a freedman could not
legally have any proximi agnati.1122
Obsequium is not unambiguously attested in the sense ascribed to it by Lambert.
Waldstein argues that the concept never implied anything more than a moral
obligation of respect and dutifulness towards a patron. Treggiari notes that at least in
the Late Republic the concept was not reserved for freedmen, but was also
commonly applied to freeborn from a lesser rank.1123 The application of the term
serui to freedmen derives from a misunderstanding of the text of the lex Cincia by
the jurist Paulus.1124 According to Waldstein, Rutilius’s edict did not represent a final
phase in the emancipation of freedmen, but rather the reverse. It strengthened the
position of the patrons vis-à-vis his freedman. The societas Rutiliana would have
been a penalty for the freedman who did not show the proper respect for his
patron.1125

1120
FABRE (1981), p. 221-226, 317-331.
1121
DRUMMOND (1989a); DRUMMOND (1989b), p. 159-163; BRUNT (1988c), p. 407-409.
1122
Tabula V, 8; CRAWFORD (1996), p. 646-648. I would like to thank professor Rathbone for
bringing the statute to my attention.
1123
WALDSTEIN (1986), p. 51-69; TREGGIARI (1969), p. 68-81.
1124
Fragm. Vat. 307; FABRE (1981), p. 114; CASAVOLA (1960), p. 77-82; DUMONT (1987), p.
116-118.
1125
WALDSTEIN (1986), p. 131-141.

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243

There are no arguments left, therefore, to assume that the original procurator was
a slave-freedman manager of an estate. But what about the procurator – amicus
thesis? The habit of turning to friends and relatives to look after one’s property and
interests when a person was away is well attested in ancient Greece. Gallant notes it
for the Archaic and later periods. Xenophon exhorted his readers to watch the
property of their friends while the owner was away in order to be able to enjoy the
same counter-favour when one had to take leave oneself. Demosthenes emphasised
the importance of good neighbours who could watch over a man’s property when he
was away.1126
When we look at anthropological studies on friendship in other cultures, we see
that the principle articulated in these texts is not culturally determined, but is merely
a practical response to material conditions typical of peasant (sub)cultures. Gregory,
for example, noted the same custom in a peasant community in twentieth century
Beliz, where temporary protection of property and interests were offered and
expected in a context of balanced reciprocity.1127
Comparative evidence, therefore, supports the thesis that Roman procuratio grew
from the obligations inherent in personal relations – both between family and friends
– and originated in a context of generalised and balanced reciprocity.

(ii) Amicitia and procuratio in historical times.


We have already seen that procuratores received mandata rather than orders,
contrary to, for example, the bailiff (uilicus, actor), who, being usually a slave,
received orders. We have also seen that probably the majority of procuratores in the
Late Republic were appointed by a general mandate. Following that, it was
established that the origin of procuratio itself most likely lay in the social context of
reciprocity typically expected between amici. All three points are strong indications
that procuratio should be considered as originally an officium amicitiae. However,
we have even more direct indications that procuratio was indeed, throughout its
history until at least the classical period of Roman law, a reciprocal obligation
entrusted to and expected from amici.
In his oration for Quinctius, Cicero surveys the appropriate way to start litigation
against a person. ‘If he appears to hide himself and to pull tricks

1126
GALLANT (1991), p. 155-158. XENOPHON, Mem. II, 3, 11; DEMOSTHENES, Nic. (LIII) 4.
See also MILLETT (1991), p. 76.
1127
GREGORY (1975), p. 76.

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244

on you continuously, call together his friends, inquire who would be procurator,
and give notice at his house.’1128 The text implies that a procurator was normally
sought among a man’s friends and relatives. Indeed, we find that Sex. Alfenus, who
presented himself as Quinctius’s procurator, was his kinsman (propinquus) and close
associate (necessarius). According to Cicero, the same Alfenus was usually also
chosen by Sex. Naevius as his procurator whenever Naevius was absent from Rome,
since Alfenus was also Naevius’s necessarius, familaris and propinquus.1129
In the case of Quinctius we are dealing with a procurator as representative in
court. However, elsewhere in Cicero’s work we see that ordinary procurator-
managers as well were usually chosen from among a man’s amici. In his famous
commentary on the interdictum unde ui already discussed, Cicero paraphrased the
words of the edict ‘whence you or your slaves or your procurator’ (unde tu aut
familia aut procurator tuus) as ‘whether you will have thrown me out, or one of your
slaves or your friends (siue me tu deieceris, siue tuorum quispiam siue seruorum,
siue amicorum).1130
If we look at the list of known procuratores, we find that apart from a few
exceptions all were amici or relatives of their principals. Cornelius Balbus was
procurator and familiaris of Caesar, Cicero and Lentulus Crus.1131 C. Oppius was
procurator and familiaris of Caesar and Cicero.1132 L. Gavius and M. Scaptius were
procuratores and familiares of Brutus.1133 C. Gallonius was procurator and
familiaris of Domitius Ahenobarbus.1134 Atticus was procurator and familiaris of the
Cicerones, Cato, Hortensius, and A. Torquatus.1135 Roscius Magnus was amicus,

1128
CICERO, Quinct. 54: si latitare ac diutius ludificare uideatur, amicos conuenire, quaerere quis
procurator sit, domum denuntiare.
1129
CICERO, Quinct. 16; 21; 27; 61; 66; 69; 87.
1130
CICERO, Caec. 56-57.
1131
Caesar: GELLIUS XVII, 9, 1; CICERO, Att. VII, 3, 11; XII, 12, 1; XIII, 52, 1. For his
familiaritas with Caesar see e.g. CICERO, Balb. 63-64; SUETONIUS, Iul. 81; Lentulus: Att. IX, 7, 2b.
On their familiaritas see h.l. and Att. VIII, 15a, 2. CICERO, Att. XII, 29, 1-2; 47, 1-2; 2a; XIII, 33, 1-2;
Fam. XI, 29, 3; Att. XVI, 3, 5. On their familiaritas see e.g. Fam. VII, 5, 2; IX, 17, 1; Att. XII, 29, 2.
1132
For Caesar: GELLIUS XVII, 9, 1. On their amicitia see e.g. SUETONIUS, Iul. 52; 72;
PLUTARCH, Caes. 27, 6. For Cicero: CICERO, Fam. XI, 29, 3; Att. XII, 29, 1-2; XIII, 2a.On their
amicitia see e.g. CICERO, Att. XII, 29, 1-2; Fam. VI, 12, 2; 11, 29.
1133
CICERO, Att. VI, 1, 4. On their familiaritas see CICERO, Att. V, 21, 10-12; VI, 1, 5.
1134
CAESAR, B.C. II, 18, 2.
1135
NEPOS, Att 15, 1-3. On his relations with these men see SHACKLETON BAILEY (1965-
1970), p. 7-9.

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cliens and procurator of Chrysogonus.1136 P. Sulla was familiaris and procurator


of P. Sittius.1137 The same picture emerges from the Digest where the typical
procurator is an amicus fidelissimus1138 who feels a sincere affection for his
principal.1139
However, a difficult question remaining is whether a principal looked for a
procurator among his amici or whether he merely chose a person whom he thought
would be suitable and with whom he entered into a more or less formal amicitia only
after the ‘contract’ was made. The question is mainly relevant for relatively humble
procuratores. A procurator belonging to the upper ‘classes’, being either a senator or
knight or a member of the prima classis, could afford to break off his procuratio
whenever he wished, so trust and loyalty had a much more crucial part to play. A
humble farm manager, on the other hand, depended on his position as procurator to
make a living. Although his relation to his principal may legally have been the same
as that of the upper class procuratores, in reality it differed completely. This is most
apparent, of course, in the case of freedmen procuratores but even when a
procurator was not a freedman of his principal, the amicitia he theoretically enjoyed
with his principal was truly an asymmetrical patron-client relation in which he
depended much more on the benefits he received from his patron / principal than vice
versa.
A very interesting letter of Pliny’s merits a short discussion here. It is a letter
written by Pliny to his grandfather-in-law Calpurnius Fabatus. Fabatus owned a villa
Camiliana in Campania that had fallen into disrepair and for which he needed a new
manager. Pliny excused himself to Fabatus. Although he had multi amici, none had
the qualities needed to reorganise the estate. All his friends were togati and urbani
and as such unsuited to manage country estates (administratio rusticorum
praediorum). Fabatus himself had a certain Rufus in mind, a familiaris of his late
son, but Pliny doubted that Rufus would possess the right qualities.1140
The letter has puzzled modern editors. Guillemin writes: ‘Cette lettre est l’une des
plus obscures de toute la correspondance … quel est le rôle de Rufus … ? C’est un
ami du fils de Fabatus, du père de Calpurnia. On ne peut songer à en faire le uilicus
ou le procurator de la villa Camiliana,

1136
CICERO, Rosc. Am. 3. On their relation Rosc. Am. 106.
1137
CICERO, Sull 56-59 (ibid. for their relation).
1138
Dig. XXXIII, 1, 10, pr.
1139
Dig. XLIV, 7, 61, 1: ualde bene amat.
1140
PLINY, Epist. VI, 30, 2-4.

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ces fonctions étant celles d’esclaves ou d’affranchis.’1141 Once we accept that


important procuratores were generally amici and that the term amicus covered both
amici pares and amici inferiores or clientes, Pliny’s letter hardly needs explaining.
Fabatus was looking for a dependable procurator to whom he could entrust the
management (administratio) of the villa Camiliana and who would logically be a
protégé of either Fabatus himself or of one of his close relatives or friends.
The case indicates that an amicitia preferably preceded an appointment to
procurator / manager, but also that this amicitia might be indirect and that, therefore,
at least in some cases the principal had no previous relation with his procurator. Was
the ensuing amicitia any less relevant because it emerged as an ‘addendum’ to a
formal contractual relationship?1142 It was certainly less sincere and more
instrumental, but was it less real in the sense that the characteristic norms regulating
amicitia – beneficence (benignitas), reciprocity (gratia), loyalty (fides), affection
(amor) and reputation (existimatio) – did not apply? I doubt it. As we will see
shortly, even the salarium paid to dependent procuratores / managers presented itself
as a beneficium rather than as a wage. In my view, even as an addendum amicitia
continued to serve as a yardstick by which to judge the actions of both procurator
and principal.

1.3 Gratuitas and advantage.

a) Mandatum.

Mandatum was, as has been pointed out, necessarily free of charge. The
mandatory was not even allowed to benefit personally from the service he provided.
Mandate, therefore, had all the features of a beneficium and the Roman jurists did
their best to interpret and preserve it as such. However, amicitia was mostly an
instrumental reciprocity relation based on mutual advantage. Therefore, the officium
mandati entitled the mandatory to gratia that had to be shown by a counter-favour.
Cicero placed mandatum unambiguously in a context of mutual loyalty (uicaria
fides) in which both principal and agent received favours from each other, so that
both amici benefited (ut commune commodum gubernetur).1143

1141
GUILLEMIN A.-M. (1962), p. 138-139. SHERWIN-WHITE (1966), p. 390 assumes that
Fabatus was looking for a tenant.
1142
For instrumental friendship (dyadic alliances) as addenda to more formal relationships see
FOSTER (1977), p. 19-21; LANDÉ (1977), p. xxi-xxiii.
1143
CICERO, Rosc. Am. 111.

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If we assume that the value of gifts exchanged, for instance, at the holidays of the
Saturnalia, stood in a direct relation to the beneficia enjoyed before, we have a first
obvious way in which a mandatory could receive a substantial reward for his
efforts.1144 However, the exercise of influence, financial support or simply
performing a mandate in return were equally effective forms of recompense. The list
of substantial counter-favours is virtually unlimited. In the context of a system that
depended more on networks of informal interpersonal relations based on mutual
advantage than on formal relations based on hired labour, the formally gratuitous
nature of mandate was not a serious handicap.1145
Nevertheless, from the Early Empire onwards, we find traces of a more immediate
remuneration in the form of an honor / honorarium or a salarium. Ulpianus
emphasised that the actio mandati was still valid if such an honorarium was given
remunerandi gratia.1146 Ideologically the status of an honor / honorarium or a
salarium was very different from the ordinary merces paid, for instance, to hired
hands in exchange for the services they provided. The oldest reference to a salarium
dates from the late second century BCE. The oldest reference to salaried
procuratores dates from the Augustan era.1147 The very fact that salaria or honores /
honoraria only became enforceable in the cognitiones extraordinariae implies that
they had been unenforceable before the development of the imperial justice system,
which evidently means that at least until then they were solely beneficia.
Bürge has recently argued that even under the Empire salaria were only
enforceable for procuratores ad litem and procurators or mandatories in official or
semi-official services, for instance, for the comites of provincial governors or for
public doctors or teachers in cities. Needless to say, Bürge’s thesis fits nicely with
the view of procuratio developed in this chapter. Unfortunately, I’m not (yet)
convinced by his arguments. They require a thorough reinterpretation of a large
number of texts. The cases adduced by the author to support his thesis are (in my
view) too ambiguous.1148

1144
Compare e.g. the payment for lawyers in gifts at the Saturnalia (e.g. MARTIAL IV, 46). See
supra p. 92.
1145
See also BÜRGE (1980)
1146
Dig. XVII, 1, 6, pr.
1147
LUCILIUS 10 (ed. Marx) (= PORPHYRIO, in Hor. Epist. 1, 3, 6); Dig. XVII, 1, 10, 9 (Labeo).
1148
BÜRGE (1993). For the cases adduced see ibid. p. 329-331 (Dig. II, 15, 8, 23; 15, 3, 21;
XXXIII, 1, 19, 2; XL, 5, 41, 6; XLIV, 7, 61, 1). See contra e.g. Dig. XXXII, 1, 37, 6: how could Titia
hope to circumvent the law that forbade her to leave a share or legacy to her procurator Callimachus by
writing it in her will as due as salarium, if salaria were unenforceable beneficia ? See also Dig. XVII, 1,
56, 3.

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Nevertheless, salaria and honores / honoraria never wholly lost their ‘honorary’
liberalitas character. Imperial law created the possibility of constituting enforceable
salaria, but not all salaria became such. The term retained its prime meaning of
‘liberal allowance’. Scaevola, for instance, uses the term to denote the allowance a
father had agreed to give his daughter.1149 Martial and the scholiasts of Juvenal and
Statius refer to salaria paid to poets by their amici magni.1150 There can hardly be
any doubt that these salaria were unenforceable.
It is interesting to find that the jurists explicitly framed a number of attested
salaria in the context of amicitia. Thus we find a case discussed by Scaevola in
which L. Titius received a salary of 10,000 sesterces from Seia, in which the latter
justified her decision with the words: ‘Because I know that you love me dearly’. The
names of persons involved are merely conventional, but far from detracting from the
historical value of the case this increases to its typicality.1151 Papinianus refers to a
testator Titia, who left an annuity of 6 gold pieces (600 sesterces) a year plus free
lodging to her amicus fidelissimus Seius, ‘who had always assisted her in all things’,
on the condition that he would continue to assist her children.1152 The close link
between salarium and amicitia is in stark contrast to the opposition between officium
(amicitiae) and merces asserted by Paulus. It clearly confirms that salarium and
merces belong in ideologically different categories.
This attitude may be compared to the one we found in connection with ‘gifts’ to
lawyers that were legally forbidden by the lex Cincia, but about which Quintilian
wrote that although legal assistance by patrons in court was a beneficium that should
not be sold, neither should it go unrewarded. A person who gave nothing in return
was unworthy to enjoy the beneficium provided by the patrons in court.1153
According to Tacitus, the Claudian venal lawyer Suilius Rufus pleaded the legal
recognition of payment for services in court, arguing that lawyers neglected their
own

1149
Dig. XV, 3, 21. See also Dig. II, 15, 8, 23 (a salarium for a person honestioris loci equals
alimenta for humiliores).
1150
MARTIAL III, 7, 6; Schol. ad Iuu. Sat. 7, 87; Schol. ad Pers. Prol. 10-11. See also BÜRGE
(1993), p. 332.
1151
Dig. XLIV, 7, 61, 1: scio enim quia ualde me bene ames
1152
Dig. XXXIII, 1, 10, pr.
1153
QUINTILIAN, Inst. XII, 7, 10-12.

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affairs to devote themselves to the affairs of others.1154 Seneca made the same
remark regarding doctors and teachers. They were not paid for their services, but for
the time they spent on their patients and pupils, which consequently they could not
spend on their own affairs.1155

b) Procuratio.

It has long been taken for granted that a procurator necessarily had to be paid.
‘Mandate had to be gratuitous but procuratio by its very nature could not be. To look
after the whole of another man’s affairs or after his estate or business would be a full-
time job and, as such, would have to be remunerated, whether in money or in
kind.’1156
The self-evidence of the assertion clearly poses problems in the light of the
gratuitous nature of both mandatum and negotiorum gestio, the two contracts on
which procuratio was based. I will try to show firstly that not all procuratores were
remunerated and secondly that the regular remuneration accorded to procuratores
from lower social strata were not constured as common wages.
Significantly, an interesting passage in Cicero’s Verrines compares procuratio to
societas. Verres had been accused of being a partner (socius) of the decumani, the
local tax-farmers in Sicily – wrongly, according to Cicero, for socii necessarily share
their profit, which Verres did not to with the decumani. Therefore, the decumani
should rather be seen as Verres’s procuratores than as his socii.1157
Does this mean that the decumani served Verres out of disinterested loyalty? Of
course not. Once we accept that procuratio properly belonged in the context of
instrumental amicitia – i.e. of a relationship based on mutual advantage in which
substantial resources were exchanged on an informal basis – there is little need for a
legal form of ‘wages’ to be paid out.
L. Oppius M. f. was a procurator of L. Egnatius Rufus in Cilicia. For Egnatius’s
sake, Cicero wrote a letter of recommendation for Oppius to the legate Q. Gallius and
to the governor Q. Marcius Philippus. Oppius’s

1154
TACITUS, Ann. XI, 7: omitti curas familiaris ut quis se alienis negotiis intendat. Note the
parallel with Dig. III, 3, 1: procurator est qui aliena negotia mandatu domini administrat (mandatu
domini possibly interpolated).
1155
SENECA, Ben. VI, 15, 2: his non rei pretium sed operae soluitur, quod deseruiunt, quod rebus
suis auocati nobis uacant; mercedem non meriti, sed occupationis suae ferunt.
1156
WATSON (1961), p. 8. See also MICHEL (1962), p. 191-191.
1157
CICERO, 2 Verr. III, 50.

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procuratio for Egnatius, therefore, ensured him of an indirect access to the highest
authority in the province. In other words, although the procuratio may well have
been unremunerated, it was not without interest to Oppius.1158 Nothing indicates that
Atticus ever expected payment for his services as procurator, but Cicero repeatedly
exerted his influence on behalf of his friend. In 60, he wrote two letters of
recommendation to Antonius Hybrida and C. Octavius, consecutive governors of
Macedonia-Achaea, regarding the difficulties Atticus was having in collecting the
debt owed to him by the city of Sicyon.1159 In 51, he personally recommended
Atticus’s procuratores and negotia in Asia to the governor Minucius Thermus.1160 In
46, he wrote a letter to the governor of Achaea Sulpicius Rufus in which Atticus’s
estates in Epirus were recommended.1161 In 45, he intervened with Caesar to prevent
the founding of a veterans’ colony in Buthrotum in Epirus, where Atticus’s main
estates were situated. After the death of the dictator, he tried to obtain the same
favour from the commission sent to confiscate and distribute the land belonging to
the city of Buthrotum.1162
However, there were procuratores in all shapes and sizes, and although the top-
procuratores belonged to the upper strata of Roman society and were in a position to
benefit from the gratia they acquired through their procurationes, many
procuratores were indeed only freedmen or clients. It would be wrong, however, to
exclude them a priori from the advantages of gratia. A man like Curtius Mithres,
freedman of Rabirius Postumus in Ephesus, was himself an important landowner and
businessman.1163 Nevertheless, the fact that many procuratores came from the lower
strata of Roman society suggests that a considerable number of them were
economically dependent on their principals.
We have already seen that some procuratores received a salarium. The oldest
reference to procuratores salariarii comes from Labeo and dates to the Augustan
era. These salaries became enforceable extra ordinem on condition that they had
been explicitly agreed upon in advance.1164 In some cases the salary could be
combined with a compensation for

1158
CICERO, Fam. XIII, 43; 44; 73; 74.
1159
CICERO, Att. II, 1, 2; Fam. V, 5. On the Sicyon affair see VERBOVEN (1993b).
1160
CICERO, Att. V, 20, 10; 13, 2.
1161
CICERO, Fam. XIII, 18.
1162
CICERO, Att. XVI, 16a-f. See DENIAUX (1975).
1163
See DENIAUX (1993a), p. 259, 490-492.
1164
Contra see BÜRGE (1993). Cf supra.

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expenses incurred, which in turn could be enforced by the actio mandati.1165 As


pointed out with regard to mandatum, the term salarium and the procedure with
which it could be enforced indicate that insofar as procuratores received wages in
the Ciceronian period (which in itself is very likely) these were unenforceable and
enjoyed the ideological status of beneficia rather than (sordid) merces.
Even so, the material advantages that a procurator enjoyed cannot be reduced to
his salarium. Sex. Aebutius, who had been Caesennia’s procurator for years, was
rewarded with a share of 1/72 of her inheritance.1166 Scaevola discusses a comparable
case in the Digest. The noble woman (honestissima femina) Titia had been wont to
use the services of a certain Callimachus, whom she wished to reward by leaving him
a substantial legacy. However, Callimachus – presumably because he was a
peregrinus without ius commercii – was legally not allowed to inherit or to receive
legacies. To circumvent the problem Titia stipulated in her will that Callimachus
should receive 10,000 sesterces as a salary ( ), from the heirs. 1167
What makes the case interesting is not that Titia wanted to pay a salary to
Callimachus (which was only to circumvent the law), but that she wanted to leave
her procurator a considerable sum of money. Accordingly, Scaevola was of the
opinion that the clause was invalid, since it clearly aimed at circumventing the law.
We may infer that Callimachus belonged to the circle of amici.1168 Of course, not all
gifts to procuratores were given post mortem. Cornelius Balbus amassed a fortune
thanks to his association with Caesar who let him share in the immense treasures
from Gaul. Pompey gave him land on which to build a suburban villa.1169
Another form of remuneration posed a bigger problem for the Roman jurists.
Sometimes a principal gave his agent a commission to sell, let out or lend at interest
whereby the principal determined a fixed minimum-price. If the agent succeeded in
setting a higher price, rent or interest rate, he was allowed to keep the difference.
This arrangement was clearly no mandatum, since the would-be mandatory made a
profit. It was not societas,

1165
Dig. XVII, 1, 7, pr.; 10, 9; 56, 3. See MICHEL (1962), p. 189-191.
1166
CICERO, Caec. 17. Not enough in Aebutius’s eyes though.
1167
Peregrines had been excluded from the right to receive fideicommissa by Hadrianus (GAIUS II,
285), so Titia had no alternative but to present her legacy as a salary.
1168
Dig. XXXII, 1, 37, 6. The names are fictitious. See also Dig. XXXIII, 1, 10, pr.; 19, 2; XLIV, 7,
61, 1.
1169
CICERO, Balb. 63; Att. VII, 7, 6; Fam. IX, 13a.

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for profit and loss were not shared. Neither was it emptio-uenditio, since the agent
did not buy, nor locatio conductio operis, since no merces had been agreed upon.
Under the Empire a new kind of contract, the aestimatum, was devised as a solution,
but in the Ciceronian period every case had to be judged on its own merits.1170
What makes the arrangement interesting is that we find it being applied to
procuratores. As late as the second century Julianus refused the actio mandati to a
procurator who had received a mandate to lend out money at interest in which his
principal had fixed a minimum rate, allowing his procurator to keep the difference if
he managed to obtain a higher rate.1171
The arrangement may have applied to M. Seius’s procurator, who according to
Varro had been commissioned to raise three fowls for every peacock hen and sell
them for 200 denarii each.1172 Obviously, if Seius’s procurator was allowed to keep
the difference if he obtained a higher price, the arrangement was extra-legal and
Seius’s procurator could have been forced to render the extra money he had made.
Did such an arrangement make the general mandates ad negotia gerenda invalid?
We do not know, but nothing indicates that this would have been the case. The
‘proto-aestimatum’ was probably just a separate, more specific case besides all the
other transactions a procurator supervised or executed on behalf of his principal.
To sum up, we can say that the relation between procurator and principal was
usually one of amicitia, which implied the exchange of substantial mutua officia.
Although the smaller, economically dependent procuratores probably received a
more or less regular remuneration in the Late Republic, which later developed into
the legally enforceable salarium, the more important procuratores were amply
rewarded by counter-favours and –services from their principals. These could take
various forms ranging from occasional (but substantial) gifts to inheritance shares
and legacies, loans, sureties, financial support, recommendations, posts on provincial
administrations and so forth.
Salarium itself was not opposed to amicitia and was rather thought of as an
expression of gratia than as wages. The payment of a salary did not

1170
Dig. XIX, 5, 13, pr.
1171
Dig. XVII, 1, 6, 6.
1172
VARRO, R.R. III, 6, 3.

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depersonalise the relationship between procurator and principal. Consequently, all


officia owed as a result of the amicitia between both remained in force.

1.4 Status and social position of procuratores.


Procuratio and mandatum, therefore, belonged to the complex of the officia
amicitiae. However, amicitia was a broad concept that denoted friendship proper,
instrumental friendship and relations between patron and client or protector and
protégé, and that ran across the boundaries of kinship. This brings us to the question
of the social position and status of procuratores. Are we mostly dealing with amici
minores, i.e. protégés and clients or with members of the peer-group, including both
actual amici and relatives, or with amici magni, i.e. patrons and protectors. And
where do the freedmen procuratores fit in?

a) Freedmen

The idea that the ‘typical’ procurator in the historical period was a freedman has
long reigned supreme. Kirschenbaum has recently asserted that ‘procuratores were
generally freedmen; rarely slaves.’1173 Of course, the idea itself is closely connected
with the theory discussed above that locates the origin of procuratio within the circle
of the Roman familia. Nevertheless, it seems to have a life of its own, mainly
because most epigraphically attested procuratores were freedmen.
In a letter from Cicero to Atticus written in 45 BCE, we read that Cicero had
‘handed over’(tradidissem) the procuratores and bailiffs (uilici) from his estate in
Cumae to Pilia, Atticus’s wife. Bonfante believes that the term tradere should be
taken in its technical legal sense of ‘to transfer property rights’ concludes that
Cicero’s procuratores, like his bailiffs, must have been slaves. This conclusion is
totally opposed to what we know of procuratores in Cicero’s day, who by nature of
their duties, which included representation in court, necessarily had to be free.
Serrao, therefore, following Bonfante’s technical interpretation of tradere, argues
that freedmen were still sufficiently socially and economically dependent on their
former masters to be transferred as if they were property together with the bailiffs
who – being slaves – truly were property.1174

1173
KIRSCHENBAUM (1987), p. 144. See also ANGELINI (1971), p. 10-13; SERRAO (1947), p.
1-9.
1174
CICERO, Att. XIV, 16, 1; BONFANTE (1898), p. 260. SERRAO (1947), p. 1-2. Bonfante loc.
cit. also refers to CICERO, De Orat. I,249, PETRONIUS 30,1; QUINTILIAN, Decl. 345. None of these,
however, refer to slave procuratores.

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However, this amounts to turning the thing upside down. If we assume that
tradere was used in a non-technical sense for the procuratores, than why would we
assume that it was used in a technical sense for the bailiffs? In fact, tradere is a term
that fits very well in the vocabulary of recommendations, where it is used, for
instance, in the saying tradere de manu in manum.1175 Concerning his
recommendation of Atticus’s affairs and procuratores to the governor of Asia,
Cicero wrote to his friend in 51: ‘I have handed over (tradidi) Philogenes and Seius
(sc. to the governor Minucius Thermus).’ The former was a freedman of Atticus, the
latter was a Roman knight and businessman.1176 The idea that some procuratores
were slaves or even informally manumitted freedmen should be abandoned once and
for all.
Clearly, however, freedmen could qualify as procuratores. After all, most private
procuratores that are attested epigraphically were freedmen.1177 In his Contract of
mandate Watson followed Serrao’s interpretations and thought that the difference
between a mandatory with a general mandate and a procurator was mainly symbolic.
A procurator received a salary, which was a sign of social inferiority, and therefore a
paid agent was called a procurator whereas an unpaid agent was called
mandatarius.1178 In his later Law of obligations, however, Watson asserts that:
‘Undoubtedly … in the last century of the Republic, procuratores might be either
freedmen … or friends, even of high rank, acting from the peculiar Roman notion of
friendship and duty.’1179
Behrends distinguishes between the procurator omnium rerum, who was normally
a relative or a trusted friend, and the procurator cui mandatum est, who was
appointed for management reasons and who was normally a freedman or at least
belonged to the lower classes.1180 An appointment as

1175
CICERO, Fam. VII, 5, 3.
1176
CICERO, Att. V, 13, 2: Tua negotiola Ephesi curae mihi fuerunt, Thermoque, tametsi ante
aduentum meum liberalissime erat pollicitus tuis omnibus, tamen Philogenem et Seium tradidi.
1177
Cf. e.g. CIL VI, 9449; 9833; 9831; 7370; 9834.
1178
WATSON (1961), p. 9. See also KASER (1974), p. 191.
1179
WATSON (1965), p. 194.
1180
BEHRENDS (1971), p. 234.

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procurator omnium rerum constituted a considerable honour. It was a token of


trust in the qualities, the position and, above all, the trustworthiness (fides) of the
appointee. An appointment as procurator mandatarius, for example, for the
management of an estate, on the other hand, betrayed social and economic
dependence.
Behrends’s interpretation is in line with the management-model that is commonly
thought to apply to the ancient Roman economy in which both executive and
management positions were almost exclusively occupied by slaves and freedmen.
This model implies that direct exploitation of important estates was virtually a
monopoly of slaves and freedmen. A recent study by Teitler confirms the model.
Although in the Greek provinces free epistatai – the equivalent of Roman
procuratores – existed, they belonged to the most humble classes in society and
some even seem to have been slaves. The epistatai supervised the epitropoi or
bailiffs – the equivalent of Roman uilici or actores1181 – who were almost without
exception slaves.1182
Teitler bases himself mainly on inscriptions. Not surprisingly therefore, his
conclusions are in line with what we have already noted for Latin inscriptions, viz.
that the majority of the attested procuratores were freedmen. However, there are
some disadvantages involved in using epigraphic evidence to assess the social status
of economic actors. Usually, we only know someone as a procurator because that
person chose to be recorded as such (usually on his epitaph). What motivated
someone to identify himself as a procurator depended on that person’s perception of
his own social identity and on his anticipation of how others would perceive this
identity. To a notable, having been procurator to one or more of his friends was
simply irrelevant. He recorded the public offices he had held and the acts of
euergetism he had performed, not the services he had rendered privately to private
persons.
It is certainly no coincidence that the inscriptions recording freedman-
procuratores fit well into the general picture of the Roman ‘labour market’ which
emerges from the epigraphic evidence. Apart from the general overrepresentation of
freedmen in them, inscriptions show a marked predominance of slaves and freedmen
in all professions and business activities. Sandra Joshel, however, shows that this
presumed predominance is based on a distortion of reality.1183 Slaves and freedmen
were

1181
On the actor and uilicus see AUBERT (1994), p. 186-196; PORTO (1984), p. 72-82. The Greek
titles ( , ), however, were very imprecise, as we will see shortly when we discuss
the management of Appianus’s estates in Egypt.
1182
TEITLER (1993). See also BEARE (1978). Contra see SCHEIDEL (1990).
1183
JOSHEL (1992), p. 1992. On inscriptions and social identity see also PERKINS (2000), p. 205-
208.

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256

simply more inclined to record their profession or business activities than freeborn
were. We may surmise that the slaves and freedmen took pride in their achievements
and mentioned these as a counterweight to their servile condition or descent. This
was particularly true of procuratio, because it gave a freedman the chance to display
his connection with a powerful patron whose trust he enjoyed. His post as procurator
in the household of an important senator (or of the emperor himself) added grandeur
to his otherwise lowly status. At least three out of five freedman procuratores
attested as working outside the imperial family conspicuously mention their noble
patrons.1184 The ultimate question, therefore, is not how many of the recorded
procuratores were freedmen, but how many of the freeborn attested in inscriptions
who chose not to identify themselves by professional or functional qualifications
were procuratores? It is, of course, inherently impossible to answer this question on
the basis of epigraphic evidence.

b) Management of rural estates in Egypt.

Rathbone’s study of the papyri in the Heroninus archive relating to the Egyptian
Arsinoite estates of the third century nobleman Aurelius Appianus and his daughter
Appiana Diodora ‘Posidonia’ reaches totally different conclusions.1185 The
administrative head of all of Appianus’s estates in the Arsinoite region was a man
named Alypios. He was in charge of the phrontistai who managed the estates.
Alypios himself was a great landowner as well and is mentioned in a papyrus as
kratistos doukenarios, implying that he had held a post as procurator in the imperial
administration, presumably before he returned to Arsinoe. Rathbone suspects that he
was a member of the city council of Arsinoe, but not of Alexandria. Therefore,
Alypios belonged to the topflight of the local elite. His high social status is confirmed
in several letters in which he is both addressed and referred to as ‘master’ ( ).
We have no functional qualification attested for Alypios.1186
Immediately under Alypios were a number of more or less autonomous cheiristai,
oikonomoi and epitropoi. All three qualifications were virtual synonyms. The
individuals who fulfilled these functions were also members of the local elite. Syros
the epitropos was councillor and former

1184
CIL VI, 9449 (Aemilia Lepida); 9831 (a C. Piso); 9834 (Cn. Lentulus Gaetulicus). On freedman
procuratores within households see FABRE (1981), p. 332-333.
1185
RATHBONE (1991), p. 58-71.
1186
RATHBONE (1991), p. 58-60.

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kosmètès of Arsinoe. Interestingly, he was also cheiristès for Valeria Elpinike


Philoxene. His son, Heron, was a councillor and kosmètès of Arsinoe and became
cheiristès of Appianus and of another large landowner Posidonius. Nemesianus was
cheiristès of Appianus and Antonius Philoxenos, who was presumably the son of
Alypios. Appianus’s oikonomos Heracleides was a large landowner, counsellor,
gymnasiarch and possibly even high-priest of Arsinoe. His brother or cousin
Aurelius Areios was councillor and epitropos of the estates owned by Valerius
Titinianus in the Arsinoite.
The management model used by Appianusseems to have been quite representative
of the Arsinoite as a whole. Another important large landowner, Posidonius, used a
certain Marinos, former gymnasiarch and councillor, as cheiristès together with the
abovementioned Heron. Valeria Elpinike used Aurelius Statianus as epitropos. Like
the others, Statianus, who may have been a Roman knight, was a councillor of
Arsinoe. He was succeeded by Aurelius Dionysios, councillor and former kosmètès
of Alexandria.
Rathbone concludes: ‘In general the evidence from these other estates sharpens the
picture already emerging for the Appianus estate. The central administration of the
Appianus estate consisted of two quite separate grades of people: on the one hand the
permanent secretariat of ‘assistants’ (boethoi) who were … paid a small monthly
salary, and on the other the central administrators themselves, who were drawn from
the upper classes of Roman Egypt. … There is … no evidence that the independent
administrators … were paid a salary for their services. … The administrators instead
enjoyed occasional perks such as hospitality when they visited phrontides and
opportunities to make personal profits by dealing in estate produce, but we may
guess that their main rewards were the prestige and influence conferred by
association with the estate, Appianus’ patronage and gifts from him.’1187
Given the close connection between procuratio and amicitia and our conclusions
about the ways in which procuratores and mandatarii were rewarded, it is tempting
to apply the Egyptian model to Roman Italy and its procuratores. However, we
should beware of easy comparisons. The epitropoi, cheiristai and oikonomoi in the
Arsinoite did not receive a salary, whereas we know that some procuratores did.
Moreover, it would seem that some procuratores were expected to reside on the
estates they

1187
RATHBONE (1991), p. 69-71.

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supervised. Pliny referred to the solitude which an estate manager had to be able to
endure. Columella advised organising a uilla rustica in such a way that the room of
the procurator is located directly above the gate and the room of the bailiff is next to
the gate.1188 Nevertheless, not all procuratores resided on the estates they supervised.
A passage in the Digest refers to the costs connected with the inspection tours which
the procuratores had to make. This would be a meaningless remark if every
procurator resided on the estate he supervised.1189

c) Peers and amici minores.

Although we may assume that dependent procuratores were usually managers, not
all procurator - managers were dependants. At least the top management consisted of
amici. It would seem, therefore, that, like the relational qualification of amicus, the
functional qualification of procurator cut through different status-levels and could be
applied to persons from the lower status-levels as well as to members of ²the social
and political elite.
This may be inferred also from the creation by Augustus of salaried procurator-
posts in the imperial bureaucracy, some of which were filled by freedmen others by
knights, indicating that the title of procurator, which had existed for centuries,
carried little or no denigrating connotations. Procuratio covered a wide field of
possible arrangements, ranging from humble salaried procuratores with a limited
assignment (for example the supervision of one estate) to amici belonging to the elite
supervising the general interests of their protégés, peers and social superiors.
The same picture of status differentiation within a functional and semiotic
conceptual unity emerges from prosopography. P. Quinctius’s and Sex. Naevius’s
procurator Sex. Alfenus was a wealthy Roman knight.1190 L. Flavius, who was
procurator of C. Matrinius on Sicily, was likewise a knight.1191 Atticus, who was
procurator of numerous senators and knights, was himself an important knight.1192
Caesar’s and Cicero’s procuratores Cornelius Balbus and C. Oppius were knights
and allegedly

1188
COLUMELLA, R.R. I, 6, 6.
1189
Dig. XVII, 1, 10, 9
1190
CICERO, Quinct. 62: eques Romanus locuples, sui negoti bene gerens.
1191
CICERO, 2 Verr. V, 15.
1192
On Atticus’s see SHACKLETON BAILEY (1965-1970) I, p. 3-59. Recently see PERLWITZ
(1992).

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the most powerful men in the state.1193 P. Sulla’s procuratio on behalf of P. Sittius,
knight, businessman and adventurer, is noteworthy, because it shows that a
procurator was not invariably lower in rank than his principal.1194
Several letters of recommendation written to provincial governors mention
procuratores as a separate category apart from freedmen and slaves. Thus we read in
the recommendation written by Cicero to Lentulus Spinther as governor of Cilicia for
the businessman A. Trebonius: ‘I commend you all his affairs, freedmen,
procuratores and slaves.’1195 Virtually the same enumeration is made in the
recommendation for Aelius Lamia’s negotia in Africa.1196 Although we have no
indication of the social status of the procuratores in these cases, the very fact that
they are heaped together with slaves and freedmen indicates that they belonged to the
lower social strata. The affairs of Otacilius Naso in Sicily were in the hands of three
freedman procuratores, Hilarus, Antigonus and Demostratus.1197 The house and
belongings of Aemilius Avianianus in Sicyon were entrusted to his freedman
procurator, Hammonius.1198
However, not all provincial procuratores were of humble station or depended
socially and economically on their principals. Egnatius Rufus’s procurator in
Philomelium in Phrygia (Cilicia) L. Oppius M. f. was an independent negotiator.1199
Brutus’s procuratores on Cyprus and in Galatia, two M. Scaptii, a L. Gavius and P.
Matinius, were equites.1200 When Cicero notified Caelius Rufus that he did not trust
the persons Caelius had sent to Cilicia to demand fulfilment of a syngrapha Sittiana,
Caelius wrote back asking Cicero to act tamquam procurator.1201
The affairs and interests of Cicero and his wife were in the hands of Terentia’s
freedman Philotimus, until Cicero found out that he had forged the accounts to cover
up his embezzlement of money belonging to

1193
Cf. GELLIUS XVII, 9, 1. See NICOLET (1966-1974), p. 853-855, 964. SHATZMAN (1975),
p. 329-330; 483-484.
1194
CICERO, Sull. 57.
1195
CICERO, Fam. I, 3, 2: commendoque tibi eius omnia negotia, libertos, procuratores, familiam.
1196
CICERO, Fam. XII, 29, 2.
1197
CICERO, Fam. XIII, 33.
1198
CICERO, Fam. XIII, 21, 2.
1199
CICERO, Fam. XIII, 43; 44; 73; 74.
1200
CICERO, Att. VI, 1, 4.
1201
CICERO, Fam. VIII, 11, 4.

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Cicero.1202 Atticus, who had assisted Cicero before, took over Philotimus’s most
important duties in the forties, while the executive and routine work was left to the
dispensator, Eros.1203
The prosopographical angle confirms our earlier conclusion that persons from all
classes and social strata could serve as procuratores and that prominent independent
procuratores co-operated with dependent freedmen procuratores. Presumably, only
the latter received a more or less regular remuneration, possibly in the form of an
(unenforceable) salarium.

1.5 The principle of indirect representation.


Fulfilling a procuratio was not only an honour, it could also be a burden (onus). In
63 BCE, P. Sittius commissioned his procurator P. Sulla to sell his estates in order to
satisfy his creditors. Cicero praised Sittius’s decision, which he explained as inspired
by a desire to avoid troubling his procuratores.1204 The fact that a procurator was
personally liable, and could, therefore, be sued for the contracts he had made in his
principal’s name, presented a real threat.
Roman law did not recognise direct representation for private purposes. Both
mandatories and procuratores represented their principals only indirectly. The basic
principle from which the Romans started was that Ego could bind and be bound only
by Ego.1205 This principle of indirect representation is usually considered a serious
handicap in the development of the Roman economy. However, I will try to show
that the principle fits perfectly in with the logic of using amici as agents and was
therefore not necessarily disadvantageous.
An important group of researchers believes that the highly developed trade- and
money-economy of the Late Republic could not have functioned

1202
On Philotimus see TREGGIARI (1969), p. 263-264; LICHTENBERGER (1895), p. 62-63;
MÜNZER (1941). On his conflict with Cicero see HAURY (1956); DIXON (1986), p. 96-97. See
especially CICERO, Att. VI, 1, 19; 4, 3; 5, 1-2; VII, 3, 7.
1203
On Atticus’s taking over Philotimus’s duties see especially CICERO, Att. VII, 3, 7 and the
previous footnote on Cicero’s conflict with Philotimus. On Atticus’s procuratio see NEPOS, Att. 15, 3.
On his services see KIRSCHENBAUM (1987), p. 181-193. On Eros see SHACKLETON BAILEY
(1965-1970) IV, p. 421; FABRE (1981), p. 343.
1204
CICERO, Sull. 58: non commisit ut sui procuratores quicquam oneris absente se sustinerent.
1205
On representation in Roman law see KASER (1970); KASER (1974); WATSON (1961), p. 78-
84; AUBERT (1994), p. 40-46.

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without direct representation and looks to the actiones adiecticiae qualitatis


regulating agency through slaves and sons in potestate for a solution, since these
actiones did imply direct agency.1206
Kaser thinks that the Roman jurists stuck to the principle of indirect representation
out of respect for tradition, while in practice they devised so many exceptions as to
make the principle irrelevant. The acknowledgement of the principle of direct agency
would demand a highly developed ability for abstract thinking that should not be
expected ‘bei Völkern auf jugendlichers Entwicklungsstufe’. In a way, the
development of the notion of direct representation, according to Kaser, is nothing
less than a miracle of juridical high-tech: ‘es grenzt an Zauberei, wenn der eine
handelt und sein Handeln bei dem andere wirkt.’1207
However, such a picture is not in accordance with the fact that Roman law did
recognise direct representation in several fields of the law, for instance, for
acquisition and alienation of property by tutores, curatores and procuratores.1208
Moreover, no formal state, however primitive, can do without representatives who
acquire and contract obligations directly for the state. The principle of direct
representation can be found fully in operation for the societates publicanorum and
for some important collegia and sodalitates.
The abstraction of the concept of direct representation is not a convincing
argument to explain the persistence of the principle of indirect representation. Is there
so much more ability for abstract reasoning required to imagine direct agency than to
imagine a slave – a natural person with a will of his own – as an ‘animated tool’?
Why is it not magic that a son or a slave acquires for his father and master? The son
makes a stipulatio, while his father acquires. Of course, one could object that the
basic unity of Archaic Rome was not the individual but the familia and that this
always acted as a legal ‘corporate’ unity.1209 But was this in any way less ‘magical’?
The idea of ‘magic’ itself is disputable. If it is magical that Ego binds and is bound
by Alter, then is it not also magical that in modern Mediteranean and Latin-American
culture the sexual integrity of the daughter embodies the honour of her family?
The principle of direct representation itself is as old as humanity and lies at the
root of some of the oldest myths and legends. The whole Judeo-Christian

1206
PORTO (1984), passim; KIRSCHENBAUM (1987), passim (esp. P. 1-6, 109-121); AUBERT
(1994), p. 40-46; BUCKLAND (1908), p. 702-706; KASER (1970), p. 334.
1207
KASER (1970), p. 335-336. See also AUBERT (1994), p. 40.
1208
ANGELINI (1971), p. 145-154; WATSON (1965), p. 203-205.
1209
See KASER (1970), p. 343-344.

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idea of original sin, in which the descendants carry the guilt of their forefathers
and of the covenant between Jehovah and the Jewish people, presupposes the notion
of transferability of guilt and obligations. It is hard to maintain, therefore, that the
principle of direct representation would require an advanced state of thinking. The
core of the problem is that although the Romans were familiar with the principle of
direct representation from a very early stage of their history, Roman law never
extended this basic principle to cover agency relations between free persons.
The possibility of direct agency through slaves and sons in potestate, regulated by
the actiones adiecticiae qualitatis, may indeed explain in part why the need for direct
agency by free persons was never acutely felt. However, unless we assume that co-
operation between free persons simply did not exist, only part of the picture can
thereby be filled in.
It may be salutary here to consider once more the contemporary western type
hierarchical organisation model. In formal corporate enterprises such as modern
firms, direct representation is inevitable, for although the firm has corporate capacity
it cannot act as a natural person. The firm, therefore, acquires and contracts
obligations through her representatives.
However, this is not the case in a network environment where, at least in theory,
all members have their own agenda and motivations. Claims and obligations should
preferably be transferable within the network, but it would be counterproductive for
the network as a whole if its members could not acquire or contract obligations when
acting on behalf of other members, since this liability in fact reflects and is implied
by their formal independence. Therefore, the principle of indirect representation is
inherent to the network model. The predominance of networks in the organisation of
the Roman economy may help to explain why the need for a general principle of
direct representation was not felt. When the need occurred, Roman law was flexible
enough to allow remedies culminating in the actio ad exemplum institoriae devised
by Papinianus. It is remarkable to find, however, that the tendency to grant
procuratores a more direct capacity of representation in classical and late classical
law disappears in post-classical law and is abandoned by the compilers of Justinian’s
Digest. Byzantine law returns to the principle of indirect representation.1210

1210
KASER (1970), p. 348-352. On the actio ad exemplum institoriae see KIRSCHENBAUM
(1987), p. 143-144.

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In my view, the persistence of the principle of indirect agency has nothing to do


with die-hard traditionalism, but everything to do with the advantages offered by
informal networks and the system of indirect representation in the context of a pre-
industrial economy that lacked the communication technology of the industrial
world. Procuratores and mandatarii were liable for all their actions. This personal
liability of the agent greatly facilitated dealing with third parties since the principal’s
reliability or solvency was not an issue. It was enough to know whether the agent
was reliable and solvent. Conversely, the principal did not have to worry about who
the persons were with whom his agent did business, since the agent was liable for
both fraud and negligence. We may note also that when Papinianus created the actio
ad exemplum institoriae, which made the principal directly liable for the obligation
incurred by his procurator, the latter’s personal liability continued to exist, whereas
the principal did not acquire any claim resulting from the actions of his agent. The
actio ad exemplum institoriae simply gave the plaintiff the choice whether he would
sue the agent or his principal. The advantages of the system of indirect
representation, therefore, were not abandoned.1211
When obligations existed or arose between principal and third party, the principle
of indirect representation implied that the agent was unable to release either party
from their obligations. The use of satisdationes, guaranteeing that neither principal
nor third party would pursue their claims, circumvented this disadvantage. Thus the
satisdatio amplius non peti (given by the agent or by the third contracting party)
guaranteed that no further claims would be made. The satisdatio ratum haberi (given
by the agent) guaranteed that the principal would ratify the decisions of his agent.
The satisdatio iudicatum solui (given by a procurator ad litem in the case of a trial)
guaranteed that the principal would accept the verdict.1212
A satisdatio consisted of a stipulatio. As such, it could be guaranteed a second
time by any outsider who wished to do so. This is what we see happening in the case
of the inheritance left by M. Mindius, a businessman

1211
Cf. KIRSCHENBAUM (1987), p. 147.
1212
On satisdationes in general see BERGER (1953), p. 690. On the satisdatio amplius non peti see
CICERO, Brut. 16-19; Att. I, 8, 1; Rosc. Com. 35-36. Ratihabitio was later equated with mandatum. See
ANGELINI (1971), p. 161; ARANGIO-RUIZ (1949), p. 197-207; BEHRENDS (1971), p. 261-274. On
satisdatio iudicatum solui (given also by litigating parties in their own name) see GIRARD (1911), p.
1026-1027; VAN OVEN (1948), p. 102; WATSON (1965), p. 83. See CICERO, Quinct. 29, GAIUS IV,
88-90; 97-101.

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in Greece. Mescinius, Mindius’s heir, sent procuratores to arrange the matter and
Cicero wrote a letter of recommendation for them to the governor Sulpicius. In his
letter, Cicero added that he would himself stand surety in case a satisdatio amplius
non peti were asked from the procuratores.1213
Using a seruus institor (or magister nauis) as agent always presented a potential
burden on the wealth of his master who was personally liable in solidum for all
obligations incurred by his dependent agent. A seruus cum peculio required a
considerable investment on the part of the master to create the peculium, while he
continued to be personally liable when he gave his slave orders (iussa). A procurator
or mandatory on the other hand, did not involve a direct burden on the principal’s
own patrimony, while the principal was not obliged to invest heavily in the
patrimony of his agent. The actio mandati and negotiorum gestorum did permit the
agent to seek redress from his principal, but only if the agent had faithfully and
diligently carried out his principal’s requests or had protected his interests. The
principal was in no way liable for fraud or any other incorrect behaviour on the part
of his agent. Conversely, the property of the agent guaranteed the contracts he made
in his principal’s name. This could be important as an alternative form of surety and
it enabled third parties to sue the local agent instead of having to look for his
principal at the other end of the Mediterranean. For the management of provincial
property, such an arrangement offered obvious advantages.
Personal liability was, of course, meaningless if the agents were indigent or
otherwise incapable of assuming liability. This again confirms the existence and
importance of a class of well-to-do procuratores. The greater a procurator’s
financial independence, the wider his potential range of action. The poorer
procuratores cannot have had many responsibilities beyond those of supervision or
internal management.
This is not say that slaves operating as institores, magistri nauium or cum peculio
were not important. Rather we should think of procuratores and mandatories as
complements to slave-agents. Thus we find on rural estates both slave-bailiffs (uilici,
actores) and free procuratores, both working together and having complementary
tasks.1214

1213
CICERO, Fam. XIII, 26; 28. On the satisdatio Fam. XIII, 28, 2: (rogo) ut, si quid satis dandum
erit amplius eo nomine non peti, cures ut satis detur fide mea. See COTTON (1978) for the case.
1214
See CICERO, De orat. I, 249. The uilicus was not instituted as an institor, whereas the actor
probably was. However, the latter only occurs from the first century onwards. On many estates actor and
uilicus seem to have been one and the same person. See AUBERT (1994), p. 186-196; PORTO (1984),
p. 72-82.

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1.6 Economic scope of mandatum and procuratio.

a) Manufacture.

Given the gratuitas-rule of mandate and its close association with amicitia, it is
remarkable to find that the majority of examples offered by the jurists belong in a
strictly commercial context. Weaving, dying, washing or mending textiles were
common subjects for mandates according to the Digest. Michel and Kirschenbaum
connect this fact with the operae libertorum.1215 The problem is that these operae had
a totally different legal and historic background. They were performed on the basis of
an oath sworn by a freedman and were enforceable by the actio operarum.1216
Two organisational arrangements attested in Cicero’s Verrines and Horace’s Odes
offer an interesting perspective. Cicero accused Verres of abusing his friends in
Sicily by letting them weave valuable carpets and other textiles for him: ‘He
provided the purple dye; his friends only the work.’ Cicero is not indignant at the fact
that such services were provided by amici, but at Verres’s trading of the goods his
friends had made for him, thereby taking advantage of the mandate he had given to
his friends.1217 Horace mentions honestae clientae weaving purple Laconian cloaks
for the nobility as an officium clientis.1218
The fact that Roman jurists took their examples of mandates from the world of
commerce reflects a society in which it was self-evident that friends provided free
services that otherwise would have had to be bought on the market.

b) Emptio uenditio.

Another category of economically important mandates mentioned in the Digest


consists of mandates to buy or sell things. We know of a fairly large number of
mandates from the Late Republic to buy things I will survey only a few by way of
example.

1215
MICHEL (1962), p. 176-179; KIRSCHENBAUM (1987), p. 132-133; GAIUS III, 162;
JUSTINIAN, Inst. III, 26, 13; Dig. XIX, 5, 22.
1216
On the operae libertorum in general see WALDSTEIN (1986).
1217
CICERO, 2 Verr. IV, 58-59. Ipse dabat purpuram, tantum operam amici. (58) Of course it may
well be that Verres had formed a societas with his amici, but this is not what Cicero says and since the
point is meant to persuade it must have been a credible possibility.
1218
HORACE, Carm. II, 18, 8.

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266

In 68, Cicero gave a mandate to Atticus to buy statues in Greece to decorate his
villas in Tusculum and Formia. Atticus bought the statues and Lentulus Spinther
provided the ships to transport them to Italy, where Cicero paid the price plus custom
duties to Atticus’s friend and procurator Cincius.1219 Cicero himself received a
mandate from M. Marius in 52 to buy some specified items at the auction of an
inheritance to which Cicero was one of the heirs. Marius set a maximum price and
left the rest to Cicero.1220 Caesennia sent her procurator Aebutius to buy an estate
that had belonged to her late husband Fulcinius and adjoining an estate she already
owned. Aebutius bought the estate, but later claimed to have bought it for himself.1221
A few cases of purchases on behalf of amici are remarkable because they took
place without a mandate. The pseudo-principal (‘pseudo’ because he had not
commissioned the purchase) could in no way be forced to ratify the purchase. In 46,
Cicero gave a mandate to a freedman of his to buy some statues from the art dealer
Aemilius Avianianus. However, M. Fabius Gallus, a familiarissimus of Cicero, was
ahead of the freedman and bought a number of statues in Cicero’s name that he
thought would please his friend. It turned out differently. Cicero was not at all
pleased. Not only had Fabius not bought the statues Cicero had had in mind, he had
also bid a much higher price than Cicero had reckoned on paying. Nevertheless,
Cicero wrote that he would ratify the purchase since he perceived and appreciated
Fabius’s sincerity and affection.1222
Another example of uncalled for agency is attested for Cicero’s brother Quintus.
In a letter written to Quintus, Cicero wrote that he had spoken to T. Anicius, an
intimate (familiaris) of the Cicerones, who had said that he was looking out for a
suburban villa for Quintus. Cicero was surprised that his brother had not written to
him about the matter and urged him to write back as soon as possible if he wanted to
stop Anicius.1223
In most cases where we encounter mandatories and procuratores in purchases, the
mandate does not involve the actual purchase, but the preliminary negotiations or the
practical arrangements afterwards. This is

1219
CICERO, Att. I, 5, 7; 6, 2; 7; 8, 2; 9, 2; 10, 2; 11, 3; 3, 2; 4, 3; 1, 5 (in chronological order).
1220
CICERO, Fam. VII, 2, 1.
1221
CICERO, Caec. 13-14.
1222
CICERO, Fam. VII, 23, 1.
1223
CICERO, Q. fr. III, 1, 23-24; 4, 5. On the Anicii and their relation with the Cicerones see
DENIAUX (1993a), p. 447-448; NOVAK (1979).

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particularly clear in the very complex matter of the fanum Tullianum. After his
daughter had died, Cicero – half-mad with grief – became obsessed with the idea of
building a shrine (fanum) for his daughter. The shrine was to be set in beautiful
gardens just outside Rome. These had to be bought and Cicero considered several
possibilities. The project required extensive negotiations and these were conducted
mainly by Atticus and in part by two other amici, a certain Sicca and Egnatius
Rufus.1224
A number of mandates to sell are also attested. In 44, Atticus was commissioned
by Cicero to arrange the sale of his share of a building to Caerellia. Atticus had to
make sure that everything was arranged for formal transfer by mancipatio.1225
Sittius’s procurator, P. Sulla, arranged the sale of his estates, with the proceeds of
which Sittius’s creditors could be satisfied.1226 When he left Italy in 44, Cicero
commissioned Atticus to sell movables and (perhaps) property to pay debts if
necessary.1227 Three years before, Cicero had given a similar mandate to sell
silverware, clothes and sheets to raise cash to provide him with money while he
waited for Caesar’s return and pardon in Brundisium.1228 In 51, Cicero asked Atticus
to give satisdationes secundum mancipium – guaranteeing the actual transfer of
property after a contract of sale had been made – regarding the sale of two estates.1229

c) Financial services.

Quite a number of mandates and procurationes concern financial services. This


has led to a lot of misunderstandings among scholars who incorrectly identified
important procuratores such as Atticus or Cornelius Balbus as bankers. The services
in question comprised payment of debts (solutio debiti)1230, recovery of debts
(appellare debitoris), obtaining

1224
See SHACKLETON BAILEY (1965-1970) V, p. 404-413; BEAUJEU (1983), p. 275-299.
CICERO, Att. XII, 18, 1; 19, 1; 12, 1; 21, 2; 22, 3; 23, 1-3; 25, 1; 26, 1; 27, 1; 28, 1; 29, 1-2; 33, 14; 30,
1; 31, 2; 34, 3; 35; 36, 1-2; 38a, 2; 40, 4; 41, 3; 43, 2; 44, 2; 47, 1-2; 50; 51, 2; XIII, 1, 2; 27, 2; 28, 1; 29,
1; 31, 4; 3, 1; 33, 2; 5, 1; 7; 12, 4; 22, 4; 30, 1; 2b; 5, 1-2; 33a, 1; 25, 2,
1225
CICERO, Att. XV, 26, 4
1226
CICERO, Sull. 58.
1227
CICERO, Att. XVI, 2, 2.
1228
CICERO, Att. XI, 25, 3; 24, 3.
1229
CICERO, Att. V, 1, 2.
1230
On the legal difficulties involved with solutio (in)debiti by a procurator see APATHY (1979).

267
268

commercial loans (uersurae), looking for borrowers to lend money at interest to


(locare faenus) and arranging transfers of claims (delegationes debitoris).
In 47, Cicero asked Atticus to repay 30,000 sesterces he owed to Cn. Sallustius via
Sallustius brother Publius. The money was to come from Terentia.1231 In the same
year, Atticus repaid the 100,000 sesterces Cicero owed to his hometown, Arpinum.
The money had been deposited with a person whose name we lack (due to an
unfortunate corruption of the text of the letter in question). Cicero’s dispensator,
Eros, had been ordered to take up the deposit and hand over the money to Atticus.1232
As procurator of his brother while the latter was governor of Asia, Cicero paid
Quintus’s debts to Castricius1233 and to Antonius and Caepio (probably Marc Antony
and Brutus).1234
In all these cases, repayment took place on the grounds of a mandatum. In 50,
however, Atticus paid back a small debt Cicero owed to a certain Numerius from
Puteoli – possibly Num. Cluvius.1235 Some time later he seems to have repaid another
small sum to a certain Philargyrus.1236 In 44, Atticus repaid a debt to Patulcius after
the latter had complained about a delay on Cicero’s part.1237 In all three cases, Atticus
lacked a specific mandate and advanced the money himself. Possibly, however,
Atticus acted on the basis of a general mandate such as was given to Cornelius
Balbus in 44 when Cicero asked him to intervene financially in case debts should
have to be paid for which there was no ready money at hand.1238
To receive formal requests and admonitions for repayment in his principal’s name
was another duty of procuratores intrinsically related to solutio debiti. In 45, Cicero
declared he would demand repayment of the first instalment of Tullia’s dowry from
Dolabella’s procuratores. However, Dolabella did not pay up and in 44 Cicero was
at a loss about

1231
CICERO, Att. XI, 11, 2.
1232
CICERO, Att. XV, 15, 1. See also Att. XV, 17, 1; 20, 4. The text reads apud †me item† puto
depositum. For possible corrections see SHACKLETON BAILEY (1965-1970) V, p. 262 (apud
Monetam); TYRELL & PURSER (1904-1933) V, p. 340 (item would conceal a number). Perhaps we
should emend to apud M. Tullium, i.e. Tullius the scriba, who had money belonging to Cicero in deposit
in 45 (Att. XV, 26, 4) and who owed Cicero money and interest in 44 (Att. XV, 26, 4; 29, 1).
1233
CICERO, Att. II, 7, 5.
1234
CICERO, Q. fr. I, 3, 7.
1235
CICERO, Att. VI, 8, 5.
1236
CICERO, Att. IX, 15, 5
1237
CICERO, Att. XIV, 18, 2; 20, 2.
1238
CICERO, Att. XVI, 3, 5. Compare Cod. Iust. IV, 35, 1 (Severus and Alexander).

268
269

what to do: demand repayment in court from Dolabella himself through his
procuratores or from his sureties.1239 Atticus received the demand for repayment of
Q. Cornificius’s debt to a certain Apuleius, for which Cicero stood surety.1240 In case
of defraud, the appellatio could be followed by a flagitatio, a public denouncement
meant to put enough pressure on a debtor to persuade him to pay up. Atticus suffered
such a flagitatio in Cicero’s place in 48 from Tullia’s creditors.1241 Of course, not
every appellatio implied that the procurator had to pay up immediately. In most
cases, he simply contacted his principal or dispensator, who took care of the actual
payment.
Conversely, demanding repayment of debts was a traditional duty of a procurator.
Philotimus, Terentia’s freedman, was Cicero’s main procurator until the civil war.
When Cicero was governor of Cilicia and received a legacy of 256,000 sesterces, it
was Philotimus’s duty to make sure the money was paid. When Cicero found out that
Philotimus had neglected to do so, he commissioned Atticus to see to the matter and
to make sure that additional interest would be charged for the delay in payment.1242
When a procurator demanded repayment of a debt without a mandate and before
the term of the debt was over, his action could be against the interest of his principal,
who lost the remaining interest. Consequently, the repayment was invalid.1243 One
case in Cicero’s letters to Atticus demonstrates the reality of what may at first sight
seem merely a theoretical juridical problem. In 45, Atticus demanded repayment
from Tullius the scribe of a debt to Cicero. Tullius, however, claimed not to owe
anything and Cicero confirmed the claim: ‘There was no reason to call on Tullius the
scribe for payment. I would have given you a mandate (tibi mandassem) if there had
been’.1244
In some cases recovery of debts could take on huge proportions. Brutus used
procuratores to collect the money owed to him by king Ariobarzanes III of
Cappadocia and by the city of Salamis on Cyprus. The procuratores M. Scaptius and
P. Matinius acted as smokescreens. Formally, they were the creditors of the city,
while Brutus remained safely hidden in the

1239
CICERO, Fam. VI, 18, 5; Att. XVI, 15, 1-2.
1240
CICERO, Att. XII, 14, 2; 17; 19, 2.
1241
CICERO, Att. XI, 7, 6. See supra p. 176.
1242
CICERO, Att. VI, 5, 1-2.
1243
The debtor could protect himself by demanding a satisdatio amplius non peti from the
procurator.
1244
CICERO, Att. XIII, 22, 4.

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270

background. Brutus simply gave them a mandate to lend the money to the
Salaminians. Once the contract was made, there existed legal obligations between
Brutus and his procuratores (based on mandate) and between his procuratores and
the Salamini (based on the syngrapha that stipulated the conditions of the loan), but
not between Brutus and the Salamini. The principle of indirect representation unveils
itself here in all its perfidious glory. Brutus’s procuratores belonged to the ordo
equester and Cicero’s predecessor appointed them praefecti and gave them a cavalry
detachment, which they used to confine the councillors of the city manu militari in
their boulè until five of them died of starvation. 1245 The procuratores in Cappadocia,
another M. Scaptius and a certain L. Gavius, continued to ‘serve’ as prefects under
Cicero when he was governor of Cilicia. Thanks to this appointment, they enjoyed a
special diplomatic status and other advantages in the province and in the kingdom of
Cappadocia.1246 Cluvius from Puteoli used procuratores for the administration of the
claims he held in Pompey’s name on several cities in Asia.1247
Looking for credit is another assignment that could be given by mandate. Atticus
was commissioned by Cicero in 51 to repay his debt to Caesar at all costs, if
necessary by contracting a new commercial loan (uersura).1248 A comparable
mandate was given to Atticus by Cicero in 44 in order to bridge a difficult period of
5 months. Cicero asked Atticus to find the money and to charge him for it. The term
used is expensum ferre, which can only mean that Atticus borrowed the money first
and subsequently lent it to Cicero who thereby became Atticus’s debtor.1249 Again,
we find the principle of indirect representation in operation.
The Digest offers some examples of procuratores charged with lending money at
interest. The most famous example is that of a procurator who was commissioned to
lend out money at interest. His principal merely imposed on him a minimum interest.
If the procurator realised a higher interest rate, he was allowed to keep the
difference. Julianus denied that the actio mandati was applicable because the
procurator had clearly enriched himself. But the case is interesting because it shows
that the

1245
CICERO, Att. V, 21, 10-13; VI, 1, 5-8; 2, 7-9; 3, 5. An alternative arrangement would be that
Brutus lent the money to Scaptius and Matinius who then lent it on to the Salamini. On the basis of the
texts, both are equally possible. See supra p. 130 on the case.
1246
CICERO, Att. VI, 18, 4; 20, 6; VI, 1, 3-4; 3, 5; HORACE, Epist, I, 6, 39
1247
CICERO, Fam. XIII, 56.
1248
CICERO, Att. V, 1, 2.
1249
CICERO, Att. XV, 20, 4.

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271

nominal creditor was in any case the procurator, who, according to Julianus,
simply became the debtor of his principal.1250
Arranging delegationes debitoris meant conducting negotiations. We have already
seen that delegatio debitoris was not easy. All parties had to agree and this voluntary
agreement offered ample scope for condiciones. Caesar’s procurator Balbus
negotiated a delegatio debitoris from Caesar to Cicero with Cicero’s procurator
Atticus.1251 A few months later, Atticus received a mandate from Cicero to negotiate
about a delegatio to Cicero of three claims held by Faberius in payment of a
considerable debt the latter owed him.1252 Although we know that delegationes
debitoris could be used to sell claims, we have no examples of procuratores being
charged to do so.1253

d) Management of property.

By definition a procurator omnium rerum was charged with the protection of the
totality of the possessions and interests of his principal. In Cicero’s words, he was
‘someone who is as it were almost a master of all affairs (omnium rerum) … i.e. a
substitute in another man’s rights.’1254 Most procuratores, however, had more
limited powers. A special category of procuratores-managers was formed by the
procuratores fundi, business managers in charge of one or more rural

1250
Dig. XVII, 1, 6, 6. See also ANGELINI (1971), p. 91-93.
1251
CICERO, Att. XII, 3, 2; 12, 1.
1252
CICERO, Att. XII, 5a; 6, 1; 13, 3, 1; 4, 2; 22, 4; 23, 3.
1253
CICERO, Att. XII, 3, 2.
1254
CICERO, Caec. 57: omnium rerum … quasi quidam paene dominus, hoc est alieni iuris
uicarius.

271
272

estates.1255 The lex agraria inscribed on the Tabula Bembina (probably dating
from 111 BCE) mentioned procuratores on the estates of Roman landowners in
Africa.1256 Cicero’s estates in Cumae at lake Lucrinum were run by bailiffs (uilici)
and procuratores.1257 The estate near Thurium belonging to another M. Tullius was
run by a uilicus and a procurator.1258 M. Seius entrusted the breeding of peacocks to
a procurator.1259 Columella advised installing separate quarters for the procurator
above the entrance to a rural villa.1260 Pliny’s grandfather-in-law, Fabatus, looked for
a protégé of his son or of his grandson-in-law to employ as procurator to reorganise
the villa Camiliana.1261 Another letter of Pliny’s indicates that a single procurator
could be responsible for several neighbouring estates.1262 Quintilian presents it as
self-evident that the rich ran their estates through procuratores.1263
The duties of rural procuratores should not be confused with those of bailiffs. The
procurator was primarily a supervisor of the bailiff, responsible only for the
important decisions. To the outside world, the procurator acted as the legal
representative of his principal. He could be sued as head of the estate and could make
claims on behalf of his principal. When the bailiff was not appointed actor (which
became common only from the first century CE onwards)1264 his master incurred no
legal obligations for any transactions (for example sale of estate produce) his bailiff
might have conducted. In these cases procuratores must have been responsible for
important transactions and contracts with third parties.
It would be a mistake to assume that the procuratores of rural estates invariably
belonged to the lower status levels because they had to devote a lot of their time to
the management of the estate. Rathbone’s study of the archive of the Egyptian
landowner Appianus has shown that the top management and supervision of rural
estates belonging to the imperial aristocracy was in the hands of the local gentry.
Nevertheless, Pliny’s description of the requirements of a rural procurator indicates
that in some cases he was expected to reside on the estates he supervised. This is
hardly reconcilable with the social obligations expected from a member of the Italian
municipal gentry.

e) Inheritances.

The number of attested procuratores charged with arranging the acceptance of


inheritances is conspicuous. Domitius Ahenobarbus sent a familiaris from the ordo
equester, C. Gallonius, to Spain as procurator to arrange an inheritance bequeathed
to Domitius.1265 Mescinius Rufus used procuratores to arrange the inheritance left by
his brother

1255
See AUBERT (1994), p. 183-186; KIRSCHENBAUM (1987), p. 149; TEITLER (1993).
1256
CRAWFORD (1996), p. 113-180; WATSON (1965), p. 196-197; BEHRENDS (1971), p. 220.
1257
CICERO, Att. XIV, 16, 1. See also SHACKLETON BAILEY (1965-1970) VI, p. 232.
1258
CICERO, Tul. 14.
1259
VARRO, R.R. III, 6, 3.
1260
COLUMELLA, R.R. I, 6, 7. (cf. also I, 6, 23).
1261
PLINY, Epist. VI, 30, 2-4. See supra p. 245 on the case.
1262
PLINY, Epist. III, 19, 2.
1263
QUINTILIAN, Decl. Min. 345, 10.
1264
AUBERT (1994), p. 186-196.
1265
CAESAR, B.C. II, 18, 2.

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273

M. Mindius in Greece.1266 L. Flavius sent procuratores to accept the inheritance


left by Octavius Naso in Asia.1267 The businessman C. Vennonius acted as a
voluntary procurator for Pompey when he checked the inheritance left by Pompeius
Vindulus, a freedman of Pompey.1268 Vestorius took care of Cicero’s shares of the
inheritances left by Cluvius and Brinnius.1269 Atticus arranged the acceptance of
several inheritances for Cicero: in 50 the inheritance left by a Precius1270, in 47 the
inheritance left by Fufidius1271, in 44 the inheritance left by certain Demoniacus.1272

f) Various negotia.

Various affairs, denoted by the infinitely vague term negotia, were entrusted to
procuratores. Otacilius Naso had negotia in Sicily that were conducted by three
freedmen procuratores.1273 The important knight Aelius Lamia had negotia in Africa
that were run by procuratores, freedmen and slaves.1274 T. Pinarius managed the
negotia and rationes of a certain Dionysius in Africa.1275 Negotia is a very vague
term and we may be dealing in all three of the above cases with rural estates.
However, this is far from certain and involvement in the grain trade, for which both
provinces were renowned, must be accepted as a possibility. Caerellia had res,
nomina et possessiones in Asia, which she at least in part had inherited from the
negotiator Vennonius and that were run by procuratores.1276 Egnatius Rufus had
negotia in Asia that were run by a slave, but his negotia in Philomelium were
conducted by his procurator, the negotiator L. Oppius.1277

1266
CICERO, Fam. XIII, 26; 28.
1267
CICERO, Q. fr. I, 2, 10-11.
1268
CICERO, Att. VI, 1, 25.
1269
CICERO, Att. XIII, 12, 4; 13-14, 4-5; 21a, 3; 22, 4; 50, 2; 14, 18, 2; 20, 2.
1270
CICERO, Fam. XIV, 5, 2; Att. VI, 9, 2;VII, 1, 9.
1271
CICERO, Att. XI, 13, 3; 14, 3; 15, 4.
1272
CICERO, Att. XV, 3, 1.
1273
CICERO, Fam. XIII, 33.
1274
CICERO, Fam. XII, 29.
1275
CICERO, Fam. XII, 24. On T. Pinarius see DENIAUX (1993a), p. 538-540; NICOLET (1966-
1974), p. 979-980.
1276
CICERO, Fam. XIII, 72.
1277
On his Asian interests CICERO, Fam. XIII, 45. It is not clear under what kind of legal
arrangement the slave operated (ex peculio or as institor). On his negotia in Philomelium see Fam. XIII,
43; 44; 73; 74.

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274

g) Accounts

Procuratores had to keep accounts of what they did on behalf of their principal
and they could be forced by the actio mandati (or negotiorum gestorum) to hand
these accounts over to their principal.1278 More interesting, however, is that someone
could be charged with a mandate to check accounts. When Cicero ran into financial
difficulties unexpectedly in 44, he sent his freedman Tiro with a mandate to check
the accounts of his dispensator, Eros. Tiro in turn contacted Atticus, who had been
Cicero’s procurator for years. Atticus soon took over the initiative from Tiro. He
notified Cicero that an emergency loan of 200,000 sesterces would have to be
found.1279 Caesar trusted on Balbus to check his accounts.1280 The quaestor Mescinius
Rufus even asked his own frater, the businessman M. Mindius, to check the accounts
of the province of Cilicia.1281
***
This survey of procuratores’ tasks presents only a small selection among the wide
range of powers and activities of Roman procuratores and mandatories. Slaves and
freedmen often worked under the supervision of a procurator. Although many of
these procuratores were freedmen, important commissions were entrusted mainly to
amici. Everything indicates that amici, under the guise of procuratores and
mandatarii, played a crucial role in the administration of the fortunes of the Roman
elite.

1278
Cf. Dig. II, 13, 9.
1279
CICERO, Att. XV, 15, 3; 17, 2; 20, 4.
1280
CICERO, Att. XIII, 52, 1.
1281
CICERO, Fam. V, 20, 2.

274
275

SOCIETAS.

Although socii did not owe each other gratia for the business they jointly
conducted, I try to show in this chapter that societas can nevertheless only be fully
understood when seen from the perspective of an amicitia or family relation between
its partners. The principle of indirect representation was as fundamental to the
societas arrangement as to mandatum and procuratio and offered the same
advantages and disadvantages. I also deal with the problem of corporate capacity or
rather the lack of it, which is generally thought to have seriously curtailed the
possibilities of societas, but which in my view reflects the actual form of
organisation behind the legal construct of societas, viz. personal networks rather than
‘corporate’ groups. Above all, however, societas should be seen as a highly flexible
framework within which various types of economic organisations (both ‘corporate’ –
in a sociological sense – and non-corporate) could be set up.

Legal framework.
As mandatum and procuratio, the concept of societas or partnership denoted much
more than a legal arrangement. Societas was any form of co-operation between
persons for whatever common purpose. A societas was primarily a ‘community’ and
this primary connotation was never absent even when the concept was used in an
economic or legal technical sense.1282
Nevertheless, as a legal concept societas was very old. As early as the time of the
Twelve Tables a societas ercto non cito – also called consortium familiare – existed
between sui heredes in case of a common inheritance. At a very early stage in
Roman law, it became possible to create a societas ercto non cito between non-
relatives outside the strict field of application of the law of succession. Every socius
had the right to

1282
Cf. e.g. JOLOWICZ (1939), p. 309.

275
276

demand dissolution of the societas and division of the erctum non citum by the
actio familiae erciscundae.1283
The societas ercto non cito had long vanished by the time of the Late Republic.
Probably in the course of the third century, the consensual contract of societas
developed. The societas omnium bonorum comprised all goods and possessions of
the partners. The societas uniuersorum quae ex quaestu ueniunt comprised all
acquisitions of the partners. The societas unius negotii involved a specific enterprise,
for example, the exploitation of a merchant ship. The societas unius rei pertained to a
single affair, for instance, one trade voyage. The object of the societas uectigalium
was the farming and collecting of taxes.1284
Every socius had to contribute something to the partnership, but this contribution
could be either in kind or in labour. Societates could be formed, therefore, in which
one socius contributed money or capital goods, the other labour (operae).1285 Unless
specific agreements were made to the contrary, profit and loss were shared equally
among partners regardless of the value of their input. A societas in which a partner
shared in the losses but not in the profits of the joint enterprise – the so-called
societas leonina – was legally invalid.1286
All types of societas – except the archaic societas ercto non cito – had in common
that they were formed through the consensus of all their partners. As in the case of
mandatum no formalities were required but consensus was a necessary precondition.
A simple co-operation, for instance, between co-heirs, was not enough to give rise to
a societas.1287 Conversely, a societas only lasted as long as consensus lasted. Every
partner had the right to renounce the partnership (renuntiatio) at any time he pleased.
The legal principle involved was that no one could be bound indirectly by the actions
of others against his will.1288 Naturally, a societas

1283
GAIUS III, 154-154b; GELLIUS I, 9, 12; FESTUS, p. 72, 380 (ed. Lindsay) (s.v. erctum
citumque, sors). See KASER (1955) I, p. 87-90; ARANGIO-RUIZ (1950), p. 3-22; WATSON (1965),
p. 126-127; GIRARD (1911), p. 575, n. 3.
1284
GAIUS III, 148; Dig. XVII, 2, 5; 7-13. GIRARD (1911), p. 575-581; KASER (1955) I, p. 477-
481; VAN OVEN (1948), p. 283-284; WATSON (1965), p. 126; JOLOWICZ (1939), p. 309-311.
1285
Possibly used by Cato the Censor (Plutarch, Cat. Mai. 25, 6), see VON LÜBTOW (1975), p.
106.
1286
WATSON (1965), p. 137-138.
1287
GAIUS III, 135; Dig. XVII, 2, 4.
1288
VAN OVEN (1948), p. 288. Of course, it was against the law to renounce a societas at an
inappropriate moment (intempestiua) or with fraudulent intent (dolo malo). See GAIUS III, 151;
WATSON (1965), p. 133-134.

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277

ceased to exist when the object around which the partnership had been construed
had disappeared, for example, when a commonly exploited merchant vessel sank, or
when the actio pro socio was initiated.1289
In classical law, a societas ceased to exist at the death or capitis deminutio of one
of its partners.1290 Although a share (pars) could not be inherited as such, the heir
was liable under the actio pro socio for what the deceased partner owed to his fellow
socii and he could use the same actio against the remaining partners to claim what
would have been due to the deceased partner.1291 Watson believes that in the Late
Republic some societates could be inherited because Cicero refers to a societas
hereditaria in his oration Pro Quinctio. It is not clear, however, whether Cicero used
the term hereditaria here in a legal sense and there are no other indications that the
law was any different in the Late Republic than in the Early Empire.1292
The fundamental instability of societas reflected the fact that societas was not
granted corporate capacity (corpus). It existed only as a complex of mutual
obligations and rights between partners.1293 The legal consequences of the actions of
partners did not lie in the acquisition of rights or the incurring of obligations by a
legal person but in the creation and disappearing of mutual rights and obligations
between the partners, or in the Roman legal terminology the communicare lucrum et
damnum – ‘the sharing of profit and loss’. In this respect, Roman societas was
fundamentally different from modern corporations or trade companies, which are
characterised by their corporate capacity. Outsiders doing business with socii could
in no way acquire claims on or incur obligations toward the societas as such because
from their point of view the societas as a legal entity did not exist.
According to the criteria of modern business law, societas would be nothing more
than a non-trading partnership, i.e. a form of co-operation without corporate capacity
in which the partners are severally liable in solidum for the actions they undertake.
Legally, the partnership does not exist for outsiders.1294

1289
Dig. XVII, 2, 63, 10.
1290
GAIUS III, 151-153.
1291
Dig. XVII, 2, 35.
1292
WATSON (1965), p. 131-133. CICERO, Quinct. 76.
1293
VAN OVEN (1948), p. 280; ARANGIO-RUIZ (1950), p. 78-83; KASER (1955) I, p. 479.
1294
Cf. Encyclopaedia Brittanica 15, p. 366-367 (s.v. Business organisation); ZOTTMAN (1981), p.
66-78 (s.v. Personengesellschaft, Recht der).

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278

In some cases, the lack of corporate capacity was partially remedied. Thus it was
accepted (by ius consuetudinis) that money given to an argentarius could be
demanded back from his socius. However, these remedies remained exceptional. A
pactum de non petendo made by an argentarius, for instance, was not binding for his
socii.1295
In some exceptional cases a societas was granted corporate capacity by a law, a
senatorial decree or (later) an imperial constitutio. The most famous example is
offered by the large societates uectigalium formed to collect taxes on behalf of the
state. Under the Republic, they were no doubt the only ‘incorporated’ societates.
Under the Early Empire a few societates publicanorum farming the exploitation of
silver, gold and salt mines were added, together with a few special collegia that were
crucial to the grain supply of the capital, among which, for example, were the
collegium pistorum and a few collegia nauiculariorum.1296
The actio pro socio was a iudicium bonae fidei that entailed infamia for the
defaulter. It testifies to the social importance attached to societas. Cicero describes
the iudicium societatis as one of the iudicia in which a man’s reputation (existimatio)
was at stake to the point of endangering his entire social personality (caput).1297
Conversely, however, a socius enjoyed the beneficium competentiae that limited the
plaintiff’s claims to what the defendant could bear (quod facere potest), reflecting the
close ties of family or amicitia which normally underlay a societas.1298
Although community of property did not in itself constitute a societas, many socii
did have property in common necessary for their common enterprise. The division of
common property was enforceable with the actio communi diuidundo, which in all
likelihood was originally modelled on the ancient actio familiae erciscundae. The
actio pro socio and the actio communi diuidundo were complementary actions.
When a socius was sued with the actio communi diuidundo, he continued to be

1295
PS.-CICERO, Rhet. Her. II, 19. On the pactum de non petendo see Dig. II, 14, 27; IV, 8, 34, pr.
Note, however, that the problem could be avoided by a satisdatio amplius non peti given by the socius
who made the pactum de non petendo. On the societas argentaria see BÜRGE (1987), p. 519-52;
ANDREAU (1987), p. 626-631
1296
see Dig. III, 4, 1, pr. See JOLOWICZ (1939), p. 311.
1297
CICERO, Rosc. Com. 16. See also CICERO, Caec. 7; Top. 42; 66; N. D. 3, 74; Off. III, 70;
Quinct. 26; Rosc. Am. 16-17; 19; 21; HORACE, Epist. II, 1, 123.
1298
Dig. XLII, 1, 22, 1. VAN OVEN (1948), p. 283, 209-291; WATSON (1965), p. 144. On the
beneficium competentiae see KASER (1955) I, p. 403-404

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279

liable under the actio pro socio and vice versa. Like the actio pro socio, the actio
communi diuidundo was an actio bonae fidei.1299

Societas and amicitia.


A societas was formed with the objective of making a common profit. There was
no question, therefore, of a beneficium from one socius to the other. When a socius
provided goods or services, he did so to improve himself, not to benefit his partners.
Gratia, therefore, was not a binding force between socii. Yet ties of amicitia were
not entirely irrelevant.
Societas rested on a relation of fides between socii that was sanctioned by the actio
pro socio. Fides in societas continued to be a complex and diffuse tie, the application
of which was not limited to specific (inter)actions directed towards the express
objectives of the societas, although these latter actions were the only ones that fell
under the scope of the actio pro socio.
Non juridical societates were conceived purely as relations of fides. Thus Rome’s
allies (socii) were ideologically bound by fides and could apply to Rome’s fides for
protection.1300 The criminal societas set up by Roscius Capito and Roscius Magnus
to kill Sex. Roscius from Ameria relied on hired killers who were in the Roscii’s
fides et clientela.1301 According to Cicero, the societas brought together by Caesar to
overthrow the Republic was held together by fides.1302 The societas hominum that
bound all people relied on iustitia that in turn depended on fides.1303 Contractual fides
derived from the societas hominum, since the latter implied that people were
honourable towards each other (honestas), which included showing respect for each
other’s due and faithfulness to agreements made (rerum contractarum fide).1304 This
seems to have been the concern also of Mucius Scaevola the pontifex, who, as a jurist
paid particular attention to the iudicia bonae fidei – among which was the iudicium
societatis – because the societas uitae relied on them.1305

1299
Dig. XVII, 2, 31; 43. BERGER (1953), p. 342; KASER (1955) I, p. 494; GIRARD (1911), p.
628-630; VAN OVEN (1948), p. 110-111.
1300
CICERO, Off. II, 26-27. See FREYBURGER (1986), p. 197-199.
1301
CICERO, Rosc. Am. 93.
1302
CICERO, Att. X, 4, 1.
1303
CICERO, Off. I, 20; 23.
1304
CICERO, Off. I, 15.
1305
CICERO, Off. III, 70.

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Cicero counted socii among a person’s intimates and asserted that infamia rightly
ensued condemnation in an actio pro socio because when a person chose to share his
interests with another (qui cum altero rem communicauit) he obviously did so
because he believed that he could rely on him (auxilium sibi se putat adiunxisse). ‘In
whose fides can one seek refuge if one is maltreated through the fides of the very
person to whom one has attached oneself?’ One can take precautions against
strangers, but not against intimates. ‘How can one protect oneself against a socius,
when even fearing a socius is undutiful (ius offici laedimus)?’1306
At least ideologically, therefore, the typical multiplicity of fides was preserved in
the mono-functional arrangement of societas. No doubt, Cicero’s romantic assertions
of societas in his oration for Sex. Roscius from Ameria were somewhat exaggerated.
Nevertheless, they reflected social reality in so far as societas was never an
impersonal relationship and most socii were amici or propinqui. In his oration Pro
Quinctio, for instance, Cicero accused Sex. Naevius of violating the laws of
friendship, partnership and relationship by marriage – ius amicitiae, societatis,
adfinitatis – when he accused P. Quinctius.1307
Historically, societas grew out of the brotherhood (fraternitas) between the natural
heirs (sui heredes) of an undivided property. In the course of time, societas outgrew
the circle of near kin, but the brotherhood expected from socii never totally
disappeared.
Prosopography confirms that societas was usually embedded in a diffuse personal
fides-relation. C. Quinctius initially chose Sex. Naevius as a partner to exploit the
estates he had purchased in Galla Transalpina because of their companionship
(consuetudo) and intimacy (familiaritas). Later, Naevius married Quinctius’s sister
(or niece). This made Naevius a relation by marriage (adfinis) and a ‘friend’
(necessarius) of C. Quinctius’s brother (or cousin?), P. Quinctius, who was C.
Quinctius’s first heir.1308
P. Iunius, who obtained the public contract to rebuild the temple of Castor and
Pollux was associated with L. Rabonius, who would be responsible for finishing the
temple once the structural work was over.

1306
CICERO, Rosc. Am. 116: Ad cuius igitur fidem confugiet, cum per eius fidem laeditur cui se
commiserit? … Tecti esse ad alienos possumus, intimi multa apertiora uideant necesse est; socium
cauere qui possumus? quem etiam si metuimus, ius offici laedimus.
1307
CICERO, Quinct. 53.
1308
CICERO, Quinct. 12; 16; 25.

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281

Although we don’t know exactly what the relation between the two men was, the
fact that Rabonius was appointed tutor of Iunius’s son indicates that some sort of
amicitia had existed between them.1309 Fannius Chaerea and Q. Roscius Gallus, the
actor, were old friends before they jointly started to exploit the acting talent of
Chaerea’s slave Panurgus.1310
Even the major ‘corporate’ societates uectigalium relied on amicitia to some
extent. Rabirius Postumus was a contractor (manceps) in many of these contracts, but
he divided (sold) shares among his amici. Needless to say, these kinds of amicitia
were highly instrumental and no doubt very volatile.1311
A number of societates were formed between brothers or cousins. M. Fabius
Gallus exploited an estate in Herculaneum together with his brother Quintus.1312 C.
and M. Fufius were joined in a societas faeneraticia to lend out money at interest.1313
Cn. and Q. Curtius Postumus had a bank or some other joined enterprise with a
common ledger showing that Verres had deposited money with them, probably with
the intention that the Postumi would put it out at interest.1314 A stamp on a lead bar
attests to the societas between a certain M. and P. Roscius who jointly exploited a
silver- and lead mine near Carthago Nova.1315
The close connection between societas and friendship or family should not
surprise us. Even today the vast majority of business partnerships are contracted
between close family or friends. Impersonal joint ventures are a feature of large scale
enterprises and these were rare in the pre-industrialised world.
It would be wrong, however, to imagine that societates were only formed between
peers. In his Paradoxa Stoicorum Cicero accused Crassus – his prototype of the
unscrupulous money-grubber – of entering into societates with slaves, freedmen and
clients.1316 Ulpianus confirms that societates between unequal partners were valid
and asserts that it often happened that one socius was poor and contributed his
labour, while the richer socius contributed money or goods.1317

1309
CICERO, 2 Verr.I, 130-152.
1310
CICERO, Rosc. Com. 25.
1311
CICERO, Rab.Post. 4.
1312
CICERO, Fam. II, 14; IX, 25, 2-3; XIII, 59.
1313
CICERO, Flacc. 46-48.
1314
CICERO, 2 Verr. I, 100.
1315
ILLRP 1262. See also NICOLET (1966-1974), p. 1004.
1316
CICERO, Par. Stoic. 6, 46.
1317
Dig. XVII, 2, 5.

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282

Cato the Elder set up a societas with no less than fifty partners for a merchant
venture. He took one part of the societas via his freedman Quintio and advanced the
capital needed for the enterprise.1318 C. Quinctius chose Sex. Naevius as partner to
exploit his newly acquired estates in Gallia Narbonnensis. While Quinctius was
clearly well off financially, Naevius came from a poor family and had been working
as an auctioneer. Naevius had nothing to contribute to the societas except his
personal talent in business. Accordingly, Naevius left Italy to manage the estates
personally, while Quinctius remained in Rome.1319
Asymmetrical societates of this kind were quite different from modern limited
partnerships. Although today’s limited partnerships also distinguish active and
‘sleeping’ partners, the active partner is personally liable in solidum, while the
sleeping partner is liable only to the extent of his investment. In a Roman
asymmetrical societas the sleeping partner was not liable at all towards outsiders for
the contracts made by his partner, while his liability towards his partner was either
determined by the pactum conuentum containing the terms of the partnership or –
failing a such a pact – was determined by the number of partners participating in the
partnership (pro parte). The arrangement was particularly suitable for socii who
wanted to stay behind the scenes, since to the outside world their involvement could
easily be kept secret.1320
Societates, therefore, were a suitable way for the elite to associate themselves with
businessmen and thus to invest a part of their surplus or to manage possessions
overseas. Conversely, societates offered a channel to drain the fortunes of the elite to
large and small business enterprises. This channel was never depersonalised.
Instrumental friendship and patronage continued to lay the groundwork.

1318
PLUTARCH, Cat. Mai. 25, 6. It’s not clear wether Cato actually lent the money (a case of
pecunia traiecticia) or merely advanced it through Quintio as socius. VON LÜBTOW (1975), p. 106
pleads for the latter view. Rougé does not believe that Cato took a share of the societas (ROUGÉ (1966),
p. 426-428; ROUGÉ (1980), p. 292-293). But Plutarch’s words

only make sense if Cato’s freedman joined the societas as Cato’s


agent (procurator?) Although according to the principle of indirect representation Cato would legally
not be part of the societas, he would be so factually. See also D’ARMS (1981), p. 39-41;
KIRSCHENBAUM (1987), p. 154. On societates in maritime trade see also CICERO, 2 Verr. V, 154.
1319
CICERO, Quinct. 12-14.
1320
The same reason why commandite partnerships were widely popular in Early Modern Europe.
See BRAUDEL (1988-1990) II, p. 413.

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283

Societas and agency.


Asymmetrical societates between unequal partners, in which some partners
contributed money or capital goods and others only labour, brings us back to the
question of Roman agency. In the case of Naevius and Quinctius, for instance,
Naevius obviously acted as Quinctius’s autonomous agent in exchange for part of the
profit. As with procuratio and mandatum, representation by socii could only be
indirect. The owners of the capital goods or the investors acquired no claims and
incurred no obligations towards third parties. The advantages and disadvantages were
the same.
If we look at the case of Roscius Gallus ‘Comoedus’ and Fannius Chaerea, we
find even more resemblances. Roscius reached an agreement with Q. Flavius, who
had killed Panurgus, the slave belonging to Chaerea that Roscius and Chaerea had
jointly exploited. Flavius, however, did not demand a satisdatio amplius non peti
from Roscius Gallus, from which Cicero concluded that the estate given by Flavius
to Roscius to avoid litigation was not intended to compensate both partners since it
implied that Chaerea retained the right to sue Flavius in his own name.1321 The case
shows that satisdationes were used to cover agency through socii as well as through
procuratores.1322
The specific mechanism of Roman agency through socii, therefore, was not
different from agency through procuratores. The principal was never bound by the
actions of his agent and did not acquire any claims on third parties. Third parties had
no need to know who stood behind the agent with whom they were doing business
since this agent was personally liable in solidum for the contracts he made.
Conversely, the interests

1321
CICERO, Rosc. Com. 35-36. Of course, Cicero’s explanation is misleading. Panurgus was
Chaerea’s slave, therefore, Roscius could only sue Flavius in Chaerea’s name, either as procurator or as
cognitor. Flavius may have made a mistake, but it seems hardly credible that the compensation he
agreed to give in order to avoid litigation was intended only for Roscius and not for Chaerea.
1322
A satisdatio amplius non peti should not be confused with a pactum de non petendo with a
debtor, which we have seen that it did not bind other socii. A pactum de non petendo was normally
grounds for an exceptio if the creditor who had concluded the pactum broke the agreement and sued his
debtor. Dig. II, 4, 27 states that such an exceptio would not be given against a socius of the creditor.
Therefore, if a socius shared the same claim (e.g. because he was adstipulator) he continued to have the
full right to sue his debtor. Conversely, a satisdatio amplius non peti was simply a guarantee that there
would be no further claims. If further claims were brought nevertheless, they were entirely valid but the
debtor could take redress on the satisdator.

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284

of the principal were also well protected, since his agent was both liable towards
him and to all third parties involved. Only total bankruptcy of the agent could
possibly endanger these interests.

The problem of corporate capacity.


The lack of corporate capacity is generally considered today as a serious handicap.
Hopkins asserts that ‘even if Roman land-owners had wanted to invest in business,
they faced one difficulty which constituted a serious obstacle to economic growth.
The Romans never evolved a legal form for commercial or manufacturing enterprises
similar to our joint stock company, which had the advantage of limiting investor’s
liability, and of preserving the business as a unit beyond the death of its owner’.1323
It would be a mistake to interpret the exceptional cases of corporate societates as
steps towards a generalisation of incorporated societates. The societates uectigalium
and the few other incorporated societates that existed under the Empire were not
granted this privilege to simplify activities or to further the private interest of the
socii, but to safeguard vital public services. If taxes were to be farmed out, the state
had to make sure that the companies who farmed them were stable and would not
dissolve whenever one of their partners died.
Analysing the legal construct of societas from the viewpoint of our corporate
enterprises can only lead us to the conclusion that Roman ‘business law’ was a
miserable failure. However, this perspective yields only a very limited view of its
possibilities. Societas covered such a wide field of various arrangements that it
would be wrong in the first place to think of a societas as an enterprise or a company
in itself. The emphasis of societas lay not on the activities deployed or on the
organisation set up to conduct these activities but on the personal relation between
socii. The purpose of a societas was the distribution of profit and loss (communicare
damnum et lucrum). From a legal point of view, societas manifested itself primarily
post factum, when profits and losses had to be distributed. The actual management of
an enterprise could be left entirely in the hands of one ‘executive’ partner. Actions
taken by any such partner had no direct legal consequences for any other partner.
Of course, in many cases societates were created for the joint exploitation of
enterprises, as we saw happening between Naevius and Quinctius.

1323
HOPKINS (1978), p. 53.

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285

In cases like these, corporate capacity might have increased the cohesion of the
enterprise and facilitated the organisation and allocation of liabilities. However, the
deployment of common slaves as institores or independent managers cum peculio
could go a long way to remedy the lack of corporate capacity when necessary. The
very fact that Quinctius chose Naevius as a partner-entrepreneur instead of simply
appointing a slave-bailiff and a freedman procurator indicates that the arrangement
had its own advantages.
We don’t know the exact arrangement under which Panurgus worked for Chaerea
and Roscius Gallus. Basically, there are three possibilities. If Roscius hired out
Panurgus, the actio locati conducti regulated liabilities between Roscius and the
contractor who hired Panurgus, while the actio pro socio regulated liabilities between
Roscius and Chaerea. If Panurgus hired himself out, his owner Chaerea was liable
under the actio institoria or the actio de peculio. Chaerea would then have the actio
locati conducti against Panurgus’s contractor and Roscius could use the actio pro
socio against Chaerea to make sure that he would get his share. If Chaerea had partly
sold Panurgus to Roscius, both would be liable under the actio institoria or de
peculio and both could avail themselves of the actio locati conducti against the
contractor who hired Panurgus while the actio pro socio allowed them to take redress
on each other. The case nicely illustrates how societas could cover a wide variety of
arrangements, each with its own typical division of duties and liabilities.
Not all societates concerned the long-term common exploitation of a specific
enterprise. Societates unius rei, created for a single venture, provided an important
device for organising a temporary co-operation. An example is offered by Cato’s
societas with fifty ship-owners. There is no question here of a durable joint
enterprise. Cato and the fifty traders simply joined hands to minimise the risks
involved in the overseas merchant venture. When the journey was over and Cato’s
loan to finance the venture repaid, the societas would automatically be ended. To
accord corporate capacity to such a temporary co-operation would have been
superfluous and undesirable. It is highly unlikely that any of Cato’s partners would
have wished to give up his independence in order to create a corporate enterprise.
The slow and difficult development of corporate enterprises in Early Modern
Europe sheds an interesting light on the problem of Roman societas and its lack of
corporate capacity. Although an early form of corporation with anonymous shares
existed as early as the fourteenth century,

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286

the first corporate companies in the modern sense of the word date from the
sixteenth century. However, corporate enterprises continued to be exceptional until
well into the eighteenth century. Even the larger enterprises were usually family
firms employing no more than twenty or thirty employees. Corporations were formed
only when the capital needed for a specific enterprise was too much to be raised by
one family or a few reliable partners.1324
Despite the possibility of limited partnerships (‘société en commandite’) and
corporate enterprises, most businessmen preferred to set up family-firms
complemented by loose associations with other businessmen concerning semi-
regular co-operation. A small commission was charged when one businessman acted
as agent for another but this was never very substantial. The main advantage of such
occasional co-operation was that the services provided were reciprocal. From that
perspective, the co-operation did not rely on a formal contract, but on personal trust
and reputation.1325
Likewise business associations between the Maghribi traders in medieval
Cairo were usually conducted without relying on legal contracts. As a rule, the
Maghribi traders depended on relations based on mutual trust. Here too, business
associates serving as agents were rewarded by commissions.1326
So in general societas sanctioned various forms of co-operation, some of
which clearly would not benefit from being accorded corporate capacity. Societas
primarily offered a platform on which socii could create any organisation or structure
they wanted, using legal and factual arrangements that were not subject to the actio
pro socio. Above all, however, societas increased the stability of economic networks
of amici and relatives, because it sanctioned any kind of co-operation in which
partners shared loss and profit, regardless of the actual form in which this co-
operation manifested itself.

1324
BRAUDEL (1988-1990) II, p. 413-417.
1325
BRAUDEL (1988-1990) II, p. 130-137. We may note that, according to Roman law, the very
fact that a commission was charged for a consensual arrangement would have implied that a societas had
been formed.
1326
GREIF (1989a), p. 109.

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287

RECOMMENDATIONS AND GRATIA.

Universalism versus particularism.


Mutual gratification was crucial in Roman friendship. The connection
between favours and counter-favours was so strong that gratia not only meant
‘gratitude’ and the ‘desire to reciprocate’ but also ‘influence’. By giving favours a
person could increase his influence on others. Influence served as important social
and political capital that could be used to distribute favours to which one did not have
direct access. Boissevain described the practice as brokerage.1327 The use of influence
to further one’s own interests or those of others was the cornerstone of successful
management of personal networks in the Roman world.
The Roman Late Republican state was firmly based on universalist
institutions. In principle, every Roman citizen had the right to be a candidate in the
elections for any magistracy provided he met a set of impersonal criteria such as, for
instance, membership of the prima classis or of the ordo equester. The people duly
elected all magistrates. Membership of the senate followed any magistracy, but was
subject to approval by elected magistrates (the censors). Likewise, membership of
the ordo equester was not hereditary but was granted by the censors and was
supposed to reflect moral integrity and economic independence. All proposals of law
were presented to the people. Every citizen had the right to vote both in the elective
and the legislative assemblies. Every citizen, with the exception of senators, had the
right to bid for state contracts. In theory, the law was the same for every one. No
citizen could be condemned without a proper trial, and so forth.
However, at the same time a parallel hierarchy of personal networks based
on family, instrumental friendship and patronage manipulated the Republic’s formal
institutions.1328 This was not an easy game and the grip

1327
BOISSEVAIN (1969); BOISSEVAIN (1974), p. 147-169..
1328
On patronal systems as ‘addenda’ to universalist systems see EISENSTADT & RONIGER
(1984), p. 184-200. See also LANDÉ (1977), p. xxi-xxiii and GELLNER (1977), p. 4 on the conflict
between universalist institutions and friendship/patronage as addenda. Compare also KETTERING
(1986), p. 73 noting that patron-broker-client ties operate inside the formal framework of institutions.

287
288

of the mighty few on the system was always provisional and insecure. The
joint efforts of Caesar, Pompey and Crassus, for instance, could not prevent Bibulus
from being elected consul in 59. The senate and the people might be influenced, but
not forced, and they often stubbornly refused to be swayed by force, money or
prestige.1329
Nevertheless, the defeats suffered by various oligarchs were the consequence
of the continuous struggle for power between the principes and their respective
cliques and factions, each trying to force their objectives through the tortuous
institutional fabric of the Republic.1330 Bibulus carried the day not just because he
was universally recognised as the better candidate, but because he was able to muster
enough support against the formidable association of Pompey, Caesar and Crassus.
Although networks of patronage and friendship could not guarantee a person’s hold
on power, the lack of such a network effectively excluded him from power and
political success. The absence of alternatives such as political parties1331 as in modern
western type democracies, or relatively open exams as in ancient China,1332 together
with the almost total absence of any effective government control gave full scope to
patronage, friendship and family as the sole means of setting up more or less
operational networks to conduct politics and to manage or manipulate the official
system. In fact, this parallel system offered the opportunity even to to outsiders –
such as, for instance, women – to influence political decisions.1333

1329
See BRUNT (1988b); MILLAR (1984); MILLAR (86); MILLAR (1998); YAKOBSON (1992);
YAKOBSEN (1999); 65-123; DRUMMOND (1999).
1330
On this struggle of power see the classics TAYLOR (1949) and SYME (1939). I agree with
Brunt, however, that neither amicitiae, nor factiones (whatever the difference between them) among
senators were very stable configurations. They should be considered as continually shifting alliances,
rather than enduring allegiances. Compare e.g. the client network of the French nobleman Henri
d’Oppède described by KETTERING (1986), p. 40-67, and her conclusion: ‘Membership in a clientele
was necessary for political advancement and clientele hopping was essential to political preferment’
(ibid. p. 55-56). The picture is one of ‘multiple patrons –rapid mobility’ instead op permanent fidelity to
a single patron (ibid. p. 58-59). See also BOISSEVAIN (1974) passim for the inherent instability of
personal social networks.
1331
Needless to say, political parties themselves are not immune to patronage or nepotism.
Nevertheless, conceptually they constitute a different framework offering, among other things, more
stability in the actual working of the political system of a state.
1332
See SALLER (1982), p. 111-116.
1333
See e.g. DIXON (1983).

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289

The endemic favouritism of the Roman social and political order is not
surprising as such. It seems hardly more than a truism to say that the weaker a state is
– in the sense that it is unable to guarantee the rights and duties of its citizens – the
more scope it offers for interventions by powerful or influential private persons.
Shatron Kettering summarises the argument by claiming that ‘Patron-broker-client
ties and networks were a way of organizing and regulating power relationships in a
society where the distribution of power was not completely institutionalized’.1334
All the more remarkable, however, is that even though the fundamental
principles of the Roman Republican state – contrary to the absolutist Early Modern
French state – were universalist, the tolerance towards and even the positive
evaluation of particularist interventions and decisions was considerable. Roman
aristocrats not only intervened on behalf of their protégés, friends and family. They
prided themselves on the success of their interventions. Roman favouritism was
openly displayed. To the Roman mind, there was no dichotomy between an
aristocrat’s public social role on the one hand and his personal obligations of
reciprocity and loyalty towards family, friends and protégés on the other.1335
Boissevain described how personal ‘raccomandaziones’ were a common
practice in Sicily in the 1960s, but no modern politician would venture to publish a
selection of his best-written recommendations1336, such as Cicero and many other
prominent Roman senators did. The thirteenth book of Cicero’s letters to his friends
– the only one we know for sure that he prepared himself for publication – consists
entirely of letters of recommendation.1337 Pliny also included commendationes in the
publication of his letters, as did Fronto, Symmachus and Libanius.1338 In fact, the
letter of recommendation was a recognised subgenre of epistolary writing. A
Hellenistic handbook of writing distinguished 21 categories of letters, one of which
was the letter of recommendation. Bornecque noted that many of Cicero’s letters of
recommendation are metrical.1339 It comes as

1334
KETTERING (1986), p. 72-73.
1335
cf. SALLER (1982), p. 26; VEYNE (1976), p. 411. Contra cf. HELLEGOUARC'H (1963), p.
570; MOUSSY (1966), p. 390-391.
1336
BOISSEVAIN (1969), p. 25; BOISSEVAIN (1969), p. 381; BOISSEVAIN (1974), p. 151: the
patron-broker uses calling-cards with a written recommendation of his ‘carissimo amico’on the back.
1337
See CICERO, Att. XVI, 5, 5; DENIAUX (1993a), p. 18-19; COTTON (1986), p. 460. Most
likely, Tiro took care of the eventual publication after Cicero’s death.
1338
PAVIS D’ESCURAC (1992).
1339
On commendationes as an epistolary genre see DENIAUX (1993a), p. 17-22.

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no surprise, therefore, that papyri, inscriptions and ostraka show that the
practice of writing letters of recommendation was ubiquitous.1340
However, it is not enough to explain the publication of these letters by
referring to their literary exemplary character or to the widespread nature of the
practice. The very fact that they could be published and that the genre of the letter of
recommendation could develop in the first place testifies to the fact that personal
recommendations were not considered at variance with the social code of the
aristocrat. On the contrary, to the Roman upper class mind these recommendations
reflected conformity with to the moral obligations of gratia and fides towards
friends, patrons and clients.
At the same time, the letters reflected more than moral integrity alone. They
formed a magnificent and direct display of the influence their author could wield.
Since, as we have seen, dignitas ultimately depended on a person’s ability to control
resources needed or wanted by others, the letters of recommendation indirectly
displayed their author’s dignitas.1341 Of course, the system was not confined to the
elite. It followed the usual vertical ramifications of patronage whereby clients
themselves became patrons serving as ‘brokers’ for their peers and social inferiors.

The objects of recommendation.


Recommendations were used for a variety of purposes. Economic interests were
among the prime motivations why the support of influential friends and patrons was
requested. It is often difficult, however, to reconstruct the true object of the
recommendations that have come to us. Only a few letters of recommendation carry
a precise request or list the motives of the commendatus.

General recommendations.

By far most attested commendationes were personal introductions.1342 They


introduced a commendatus who was usually praised for his personal qualities of
liberalitas, uoluntas, bonitas, humanitas, fides and so forth. Gratia was often
adduced in the double sense of gratitude – the

1340
On letters of recommendation attested in non-literary texts see COTTON (1981b).
1341
See SALLER (1982), p. 126; cf. MACMULLEN (1986); HELLEGOUARC’H (1963), p. 407.
1342
Cf. COTTON (1981b), p. 5; COTTON (1986), p. 443; SALLER (1982), p. 108-110, 162-164.

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commendatus is a gratissimus – and influence – he was gratiosus (influential). By


implication the person to whom the recommendation was addressed would benefit in
turn if he’d agree to help the commendatus, since the latter was both able and willing
to return favours received. Naturally, the amicitia or other close relationship between
the commendatus and the commendator was referred to and the worthiness of the
commendatus as a friend was explicated, usually by emphasising his fides and
gratia.1343 In some cases, the commendatus was introduced as a friend of a friend.1344
To spur the addressee even further, the commendator assured him of his own
gratitude should he grant the commendatus’s requests.1345
Although many recommendations were superficial and were probably not
intended to carry much weight1346, the effective persuasive strength of general
personal recommendations should not be underestimated. The emphasis on the
fundamental qualities of fides and gratia implied a promise of future returns that
constituted the essence of Roman instrumental amicitia.1347
A considerable number of recommendations requested that the commendatus be
accepted into the amicitia of the addressee. Thus Cicero asked M. Acilius Caninus to
accommodate C. Avianius Philoxenus and to accept him into the circle of his
intimates (habeasque in numero tuorum).1348 Q. Minucius Thermus was requested to
receive Curtius Mithres into his fides and to allow him into the circle of his intimates
(ut … recipias in fidem, habeasque in numero tuorum).1349 A similar request was
made on behalf of a freedman of L. Cossinius, Anchialus.1350 The expressions in
fidem recipere and in numero suorum habere belong to the language of patronage
and it may be no coincidence that the beneficiaries were freedmen and peregrines.
‘To hand over’ – tradere – was another expression used for the same purpose. Thus
Cicero’s young friend

1343
DENIAUX (1993a), p. 34-36.
1344
E.g. CICERO, Fam. XII, 6, 3; 6a.
1345
Note however, that approximately one third of Cicero’s commendationes don’t carry thanks
from Cicero to the addressee. See DENIAUX (1993a), p. 49-50.
1346
DENIAUX (1993a), p. 44-46.
1347
Cf. SALLER (1982), p. 108-109.
1348
CICERO, Fam. XIII, 35.
1349
CICERO, Fam. XIII, 69.
1350
CICERO, Fam. XIII, 23: pergratum mihi feceris si eum in amicitiam tuam receperis.

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Trebatius Testa was recommended to Caesar with the words ‘I hand him all over
to you, from hand to hand (de manu … in manu), as the expression goes’.1351 The
term tradere reappears in his introduction of L. Genucilius Curvus to Q. Minucius
Thermus.1352
Other letters envisage a new friendship between commendatus and addressee as
the inevitable result of the latter’s benevolence. Thus in Cicero’s letter of
recommendation to L. Munatius Plancus on behalf of C. Ateius Capito, Cicero
assured Plancus that Capito, a uir gratissimus, officiosissimus and optimus, would
become his friend (necessarius).1353 His recommendation of M. Bolanus to Ser.
Sulpicius Rufus carried the same promise.1354 In Capito’s case, Cicero’s intentions
worked out as planned. Two years later Capito was member of the commission for
the foundation of a colony at Buthrotum (where Atticus had his best and largest
estates) under the charge of L. Plotius Plancus, Munatius’s brother and Cicero wrote
a commendatio to Capito to ask him to use his influence with his brother on behalf of
Atticus and Buthrotum.1355
Some letters of recommendation refer vaguely to the business interests of the
commendatus. Thus the negotia of the knight Sex. Aufidius were recommended to
the governor of Africa.1356 Caerellia’s res, nomina and possessiones, which she had
inherited at least in part from the businessman Vennonius, were recommended to the
governor of Asia.1357 L. Manlius Sosis’s negotia uetera in Sicily were recommended
to the governor M. Acilius Caninus.1358
Requests directed to provincial governors for the protection of the interests of
commendati were quite common. Thus P. Servilius Isauricus

1351
CICERO, Fam. VII, 5, 3: totum denique hominem tibi ita trado, de manu, ut aiunt, in manu
tuam
1352
CICERO, Fam. XIII, 53. Gelzer and Deniaux interpret the expression as the remnant of an
ancient formal ritual by which a patron ‘transferred’ his client to another patron. (GELZER (1912), p.
54-56; followed by DENIAUX (1993a), p. 36-44). See contra supra p. 53.
1353
CICERO, Fam. XIII, 29, 8. Plancus is asked to intervene with Caesar to allow Capito to keep the
inheritance left by T. Antistius (worth 15 million sesterces), whose goods had been proscribed.
1354
CICERO, Fam. XIII, 77.
1355
CICERO, Att. XVI, 16c. On the colonisation of Buthrotum and Atticus’s and Cicero’s
endeavours to stop it, see DENIAUX (1975).
1356
CICERO, Fam. XII, 27.
1357
CICERO, Fam. XIII, 72.
1358
CICERO, Fam. XIII, 30.

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was asked to protect Caecina’s affairs (res) in Asia.1359 Ser. Sulpicius Rufus’s
protection was requested for the affairs and fortune (res et fortuna) of (among others)
Lyso from Patrae.1360 A letter of recommendation written to the governor of Sicily A.
Allienus, solicited his protection in the affairs (res) of the children of C. Avianius
Flaccus.1361 Q. Cornificius, governor of Africa, was asked to watch over L. Aelius
Lamia’s business, procurators, freedmen and slaves (negotia, procuratores, liberti,
familia).1362
The letter on behalf of Aelius Lamia illustrates another more interesting kind of
recommendation, in which a person’s procuratores or slaves are recommended. They
show how separate units of economic organisation are integrated into extended
networks of instrumental friendship and patronage. When the dealer in art, M.
Aemilius Avianianus, had to go away on business to Cibyra, he left his house and
affairs in the hands of his freedman C. Avianius Hammonius. Cicero recommended
Hammonius and Aemilius’s house and belongings (domus et res familiares) to the
governor, Ser. Sulpicius Rufus.1363 He also introduced Atticus’s procuratores
Philogenes , and M. Seius to the governor of Asia, Q. Minucius Thermus, and
recommended them together with Atticus’s negotia.1364 T. Pinarius (a cousin of
Caesar’s) was procurator for a certain Dionysius’s accounts and affairs (rationes et
negotia) in Africa. A letter of recommendation from Cicero introduced Pinarius to
the governor Q. Cornificius.1365 Cn. Otacilius Naso had negotia on Sicily, which
were managed by three freedmen. Cicero recommended both Naso’s negotia and his
freedmen to the governor M. Acilius Caninus.1366 A. Trebonius’s negotia in Cilicia
were recommended together with his slaves, freedmen and procurators (familia,
liberti, procuratores).1367 We have already encountered the same description for
Aelius Lamia’s organisation in Africa.1368 L. Egnatius Rufus’s affairs (negotia) in
Asia were managed by

1359
CICERO, Fam. VI, 8, 2.
1360
CICERO, Fam. XIII, 29; 24.
1361
CICERO, Fam. XIII, 79.
1362
CICERO, Fam. XII, 29.
1363
CICERO, Fam. XIII, 21; 27.
1364
CICERO, Att. V, 20, 10.
1365
CICERO, Fam. XII, 24.
1366
CICERO, Fam. XIII, 33.
1367
CICERO, Fam. I, 3.
1368
CICERO, Fam. XII, 29.

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a slave, Anchialus, whom Cicero recommended, together with his master’s


interests, to the proquaestor of the province, P. (?) Appuleius.1369 In Cilicia, Egnatius
used the services of his friend and procurator L. Oppius M. f., a resident Roman
businessman in Philomelium. Cicero recommended both Oppius’s and Egnatius’s
negotia to the legate Q. Gallius and to the governor Q. Marcius Philippus.1370 We can
safely assume also that the introduction on behalf of C. Curtius Mithres1371 and L.
Cossinius Anchialus1372 were at least in part intended to support the organisational
network of their respective patrons, C. Rabirius Postumus and L. Cossinius.
The recommendation of key figures in one’s own organisational network was
standard procedure. In 44, Cicero commended the procuratores of his estates near
Cumae to Atticus’s wife, Pilia.1373 Brutus wrote a commendatio to Cicero on behalf
of his procuratores in Cappadocia.1374 Caelius Rufus wrote a recommendation to
Cicero for the procuratores he had sent concerning a syngrapha Sittiana. At least in
part it seems to have been Caelius’s intention that Cicero would in turn recommend
the men to Adiatorix, tetrarch of Galatia.1375
Brutus also wrote a recommendation for the negotiatores M. Scaptius and P.
Matinius, to whom the city of Salamis on Cyprus owed a huge sum of money. Cicero
was not told that Scaptius and Matinius were really Brutus’s straw men.1376 The case
is all the more interesting because it raises the question of how many other
recommendations for negotiatores were actually made on behalf of prominent
senators hiding behind the nominal commendati. It is hard to imagine that the
obscure knight T. Pinnius was the only source of the eight million sesterces, which
the city of Nicaea in Bithynia owed him.1377
Of course, an apparently general and vague recommendation may serve specific
purposes. The recommendation on behalf of Caerellia clearly hints at what was
expected by referring

1369
CICERO, Fam. XIII, 45.
1370
CICERO, Fam. XIII, 43; 44; 73; 74. The letter to Q. Gallius (Fam. XIII, 43) also requested that
Oppius would be allowed into Gallius’s friendship (ut diligas).
1371
CICERO, Fam. XIII, 69.
1372
CICERO, Fam. XIII, 23.
1373
CICERO, Att. XIV, 16, 1.
1374
CICERO, Att. VI, 1, 14; 3, 6-7
1375
CICERO, Fam. II, 12, 2; VIII, 2, 9; 4, 5; 8, 10; 9, 3; 11, 4.
1376
CICERO, Att. V, 21, 10-13; VI, 1, 4-8; 2, 7-9; 3, 5. See supra p. 130 on the case.
1377
CICERO, Fam. XIII, 61. See also CICERO, Fam. XIII, 56.

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to Vennonius’s inheritance and a senatorial decree in connection with it.


Nevertheless, the actual request is framed in the vaguest terms possible.1378 The
recommendation that Cicero wrote on behalf of Atticus to C. Antonius Hybrida as
governor of Macedonia-Achaea was specifically meant to obtain Antonius’s support
in Atticus’s dispute with the city of Sicyon, but the recommendation as such was
kept vague. Presumably, Cicero’s recommendation to Antonius’s predecessor C.
Octavius, of which we hear in a letter to Atticus, was no more specific.1379 The
recommendation for Servilius Strabo unmistakably refers to a specific problem, but
the nature of the case is not explained.1380 A recommendation on behalf of L.
Papirius Paetus written by Cicero to Atticus mentions Paetus’s negotia without
further specification. The context of the letter, however, strongly suggests that the
commendatio was in fact intended to obtain Atticus’s help with the inheritance that
Paetus had received from his brother Ser. Claudius.1381
The vagueness of these letters is in line with what seems to have been a general
characteristic of the genre itself. Epistolary recommendations served first and
foremost to introduce the commendatus to the addressee. The specification of a
request was usually left to the beneficiary who was introduced in a letter.1382
In some cases, a recommendation hints that the expected help was of a practical
and substantial nature. A good number of letters request for help (adiumentum) or
refer to the benefit that the commendatus expected to reap from his recommendation.
Thus Cicero hoped that the recommendation he wrote on behalf of T. Agusiu