The Apologia as a prosecution for bad-faith accusations (calumniae)
Roman Laws Against Magic
What are the XII Tables?
Why wasn’t a professional prosecutor bringing these charges against Apuleius?
Why wasn’t Apuleius represented by a lawyer?
Why were so many ridiculous charges made against Apuleius?
Why didn’t Pudentilla testify to explain what she meant in her letter?
Enslaved people
The long shadow of Roman slave law . . . or not, in antebellum Louisiana
The Apologia as a prosecution for bad-faith accusations (calumniae)
Winter, Thomas Nelson. “Apology as Prosecution: The Trial of Apuleius,” (PhD diss., Northwestern University, 1968).
This dissertation, then, will show evidence for an essentially new interpretation of the Apology: that the only foundation for the accusation against Apuleius was hatred and malice; that the accusers had so little faith in their charges that they had to be forced to make their accusation official; that this was done by Apuleius, with the help of the judge, so he could clear his name and expose his calumniatores; in sum, that the innocent philosopher met the false accusation with a de facto prosecution on the charge of calumnia as well as with a rebuttal of the charges of magic (pp. 7–8).
No one seems to have pointed out the significance of the fact that a false accusation was a serious crime. The penalty for the crime varied, but in the second century the tendency seems to have been to give the calumniator the same penalty which he had tried to have inflicted upon his victim. We have, for example, another instance of calumnia magiae within thirty years of Apuleius’ trial. The calumniator was crucified (Historia Augusta Severus 2.3, calumniatore in crucem acto) (p. 7).
The accusers had grudges against Apuleius, rather than evidence. The trial took place because Apuleius wished it; his motive for so wishing was vindication of his name and vengeance on his enemies. These had been foolish enough to give him the opportunity for vengeance—an opportunity which the proconsul helped him use. Never in danger, Apuleius was free to spend as much time exposing and destroying his enemies as he spent establishing his own innocence. … Apuleius has, by the time of the trial, been subjected to about two years of hatred and slander by his greedy in-laws, Herennius and Aemilianus. These legacy-hunters had been hoping to acquire a large portion of Pudentilla’s estate and saw in Apuleius the failure of all their hopes. They therefore hated him so much that they threatened to kill him. … Apuleius was pleading a case in behalf of his wife Pudentilla—who does not seem to have made the trip from Oea—“when Aemilianus’ lawyers, according to plan, began to advance upon me, unsuspecting, with curses, and to accuse me of wrong-doings by magic, and even of the murder of my stepson Pontianus.” [1.5] (p. 34)
. . . the hecklers of Apuleius had no plans to prove what they shouted, or to make the speaker whom they interrupted a defendant (p. 35)
It would seem, then, that the trial arose, not because Aemilianus and his friends had a case against Apuleius, but because Apuleius had a case against them: their hatred of Apuleius led them to commit a wrong (p. 38)
. . . Apuleius turns his “apologia” into a prosecution, and simultaneously provides a worse penalty: exposure (p. 40)
Apuleius correctly states that the accusers avoid responsibility by placing the accusation in Pudens’ name. Even though he had been given the toga virilis, Pudens was not yet old enough to be accountable for an accusation, for a Roman youth did not become a fully responsible citizen until 25 years old (p. 43. n.1).
. . . the trio of accusers committed a rather gross criminal calumnia, and that Apuleius’ interest in the Apology was as much to establish their guilt as to disprove his own (p. 86).
Briefly, the accusers of Apuleius came to the forum of Sabratha with only the intent to embarrass Apuleius in public once again. But their publicly shouted insults constituted an act liable to punishment, iniuria atrox, and this time it was committed in front of a judge. Apuleius, affronted much less by the interruption of his speech than by the slanders with which he was interrupted, challenged his tormentors to defend the truth of their charges in an official accusation or face liability for the publicly offered insults. The judge supported him. The hecklers were obliged to accuse. The calumnia which this involved did not disturb them, as they were able to evade liability for this crime by placing the accusation in the name of a teammate who happened still to be an infant before the law. Apuleius, far from “nervous,” considers this trial which he has precipitated an opportunity (copia, facultas, occasio) to end the defamation mounted against him and to restore his good name. As the calumniatores have protected themselves against prosecution and punishment for their crime, Apuleius also used his speech to accuse, prosecute, and punish (p. 99).
Roman laws against magic
Clyde Pharr, "The Interdiction of Magic in Roman Law," Transactions and Proceedings of the American Philological Association 63 (1932): 269-295, at pp. 277-280.
The earliest legislation seems to have been neutral or at least tolerant, unless the magician misused his power to inflict injury on others. ... As in Greece, the law seems to have respected a man's right to practice magic, so long as it did not interfere with his neighbors, their persons, their lives and their property. Thus the sturdy old Cato (Agr. 160) gives the magic ritual for the cure of sprains. Similar directions and various other remedies of this kind are found in Varro's De re rustica, and abundantly in Pliny (H.N. XXVIII, 21; xvii, 267).
But even so, magic was always more or less suspect. This was due to various causes. One of the chief sources of opposition was the established religion. Although the various forms of the state cult may embody sundry forms of magic, both helpful and harmful, yet it is under social control. The magician on the other hand usually is a free lance and operates not publicly and in broad daylight for the common good, but privately and frequently under cover of darkness, for private benefits, often in opposition to the public good. Thus magic, except in a very primitive community, is regularly a type of social and religious heresy, and as such bound to incur the wrath of the leaders of the established religion, as can be seen to best advantage in the savage laws of the Hebrews directed against magic and magicians. Besides, the magicians claimed to be able to do much more than the more sober religious leaders would usually undertake. By means of their formulas and ritual they seemed as it were to take an unfair advantage of the very gods and at times to compel them to work the will of the sorcerer, thus annoying the divinities and stirring up their wrath. The secrecy and mystery of magical rites and the mere fact that magic was an individual rather than a collective undertaking and that it did not come out into the open, as did most religious ceremonies, convinced the people that it employed unlawful and impious means. For this there seems to have been considerable evidence. Magicians often violated tombs for various reasons but chiefly to insert tabellae defixionum and to obtain parts of dead bodies for use in necromantic ceremonies (Hor. Sat. i, 8, 8, ff.; Prop. iII, 6, 29; Lucan, vi, 499 ff.). They were accused, and apparently correctly, of performing human sacrifices or of ritual murder (Cic. in Vat. 6, 14; Hor. Epod. 5). Lesser crimes in great number, particularly crimes of sex, were laid at their door (Saga often = lena; Tib. I, 2, 42-46; 5, 59; 5, 23; cf. Non. i, 86; 22, 33; Lucil. 271 (Marx)). As a consequence, on more than one occasion the Romans in the time of the republic legislated apparently against magic in general and identified various secret religious ceremonies with the practice of magic, such as the Bacchanalian rites, forbidden by a senatus consultum in 187 B.C. (C.I.L. I2, 581; x, 104; Livy iv, 30; xxv, 1, 6-12; xxxix, 8-19).
In the later republic the most important legislation was that of Sulla, the Lex Cornelia de Sicariis et Veneficis, enacted in 81 B.C. This law formed the basis of much of the imperial legislation against magic.
In addition to being a religious heresy magic often seems to have served as a sort of cloak for seditious and subversive political movements of various kinds, which helps to account for the severe legislation against such secret rites as those of the Bacchanalia.
From time to time the Romans expelled the astrologers, but most of them were foreigners and as such were objects of additional suspicion. A great many laws were enacted prohibiting the practice of malicious magic and at times apparently all magic was proscribed.
Legislation was repeatedly enacted, requiring the books of the soothsayers to be burned (Suet. Aug. 31; Tib. 36; Vit. 14) and it was made a high crime either to teach or learn their doctrines. Yet a fresh supply of both books and soothsayers seems always to have been forthcoming and in spite of all this legislation and in spite of the opposition of the emperors with the horrible penalties which they invoked against it, including such punishment as the burning alive of the magician, crucifixion, or being torn to pieces by the wild animals of the arena, magic seems to have maintained a vigorous hold and to have been widely practiced. The reason for this seems to be found in the strong belief in it, or at least in the lurking suspicion of the possibility of its claims, on the part of practically everyone, from emperor to galley slave. It has been well observed that the emperors who were at such great pains to proscribe soothsaying and to expel the soothsayers were always ready to consult them as to their own fortunes and that of the empire (For a striking parallel in Hebrew history, compare the story of Saul and the witch of Endor, I Sam. 28, 3-25). Every one condemned the practice of malicious magic, if directed against himself, but a very large proportion of the people were all too ready to resort to it in order to attain their own private ends. On the other hand, the practice of benevolent magic was usually tolerated and even encouraged when officially and publicly employed.
Under the empire additional causes arose for the prohibition of magic. One of the claims of the magician was the ability to prophesy the future. When these prophecies presumed to say at what time and under what circumstances the ruling emperor would die, abdicate, or be overthrown, the result was politically unsettling, and harsh measures were taken from the time of Augustus to stamp out the practice (Tac. Ann. iI, 32; XII, 52; Hist. II, 62. Cf. Matt. 2:1. According to strict Roman law the μάγοι ἀπὸἀνατολῶν, the magi from the regions of the rising sun, who prophesied the birth of a new kiing of the Jews, would be outlaws.).
What are the XII Tables?
Johnston, David. Roman Law in Context. Cambridge: Cambridge University Press, 2nd Ed., 2022.
What we know of Roman private law begins in about 450 BC with the promulgation of the XII Tables. Livy and Cicero describe them as the source of all public and private law (Liv., ab urbe condita 3.34.6; Cic., de oratore I.195); Cicero recounts how schoolchildren had to learn them (de legibus 2.59). The background to the XII Tables is said to be political and economic struggle between the orders, but here it is difficult to disentangle fact from myth and tradition. Pomponius reports that the impetus for the promulgation of the XII Tables was dissatisfaction with the uncertainties of customary law: they offered the advantage that henceforth some legal rules were set down in fixed form (D. I.2.2.3).
Since the XII Tables do not survive, our knowledge of them is extremely fragmentary, and the order in which provisions appeared in them is mostly not known . . . The provisions that are known indicate that matters of family law, property, and succession were prominent, as is perhaps to be expected at this period, but they also attest great concern with setting out the rules for legal process. What these XII Tables contained was not a law code in the modern sense but a list of important legal rules. So far as we can judge from what survives, the content was somewhat piecemeal; and it may be that it was shaped by the issues in relation to which there was particular dissatisfaction with the rules of customary. The rules set out were extraordinarily laconic and nowadays are hard to understand, not least since the subject of successive clauses changes without warning. Id. at 2.
Why wasn’t a professional prosecutor bringing these charges against Apuleius?
Johnston, David. Roman Law in Context. Cambridge: Cambridge University Press, 2nd Ed., 2022.
Proceedings were instituted not, as we expect nowadays, by the state acting through its official prosecuting authorities but by a private individual making an official declaration that a person had offended against the law . . . The principle that it was private individuals who brought the perpetrators of crimes before the courts was maintained during the principate. Id. at 179.
Why wasn’t Apuleius represented by a lawyer?
Johnston, David. Roman Law in Context. Cambridge: Cambridge University Press, 2nd Ed., 2022.
Although the legal sources say little about it, it seems that as a matter of course litigants would usually be represented by advocates, practitioners of rhetoric rather than law. Id. at 155.
Why were so many ridiculous charges made against Apuleius?
Johnston, David. Roman Law in Context. Cambridge: Cambridge University Press, 2nd Ed., 2022.
There can be little doubt that the Roman judge would take into account factors that to a modern judge would seem irrelevant . . . the arguments advanced before the court would emphasize the qualities of one party and supporting witnesses (lineage, wealth, status, achievements, social standing, moral character) and the converse for the opponent . . . It is clear from the literary sources that “evidence” was often produced to make an emotional impact, or because of the favourable light it cast upon a party in general terms, rather than because it was germane to the point at issue. Cicero’s speeches, even in civil litigation, contain (by modern standards) extraordinary abuse of the defendant, supporting witnesses, and – this is barely an exaggeration – relatives and friends. Id. at 153-154.
Why didn’t Pudentilla testify to explain what she meant in her letter?
Gardner, Jane F. Being a Roman citizen. London: Routledge, 1993.
The idea of modesty . . . that there is some moral impropriety in women’s presenting themselves in public when they need not do so. Appearing in a public court, even in one’s own behalf, was not an absolute necessity for most people; they had the choice of appointing a representative. The women who appeared personally in court because they had no choice but to do so were those who for one reason or another belonged among the disgraced (infames) listed in the praetor’s edict . . . the notion of chastity is linked with staying at home, away, that is, from the eye of men other than husbands. Women who voluntarily offer themselves to public view raise doubts, it is suggested, about their morals. Id. at 104-105.
. . .
The corollary to this is the idea that women were particularly vulnerable to abuse and should not be obliged to appear in public. The law of the Twelve Tables . . . allowed a plaintiff to use force
to compel a reluctant defendant to appear in court, but Valerius Maximus claims: In order that the decency of married women might be made more secure by the protection of being afforded proper respect, they [the early Romans] did not allow anyone summoning a married woman to law to touch her person, so that the matron’s gown might be left unviolated by the contact of another’s hand. Id. at 105.
Enslaved people
Johnston, David. Roman Law in Context. Cambridge: Cambridge University Press, 2nd Ed., 2022.
Roman law enshrines a great contradiction: on the one hand slaves were property, just like a book or a dog; on the other, they were also human, and to make full use of them required that their human characteristics – their intellect and the opportunities it offered – be recognized. These two strands of thought conflict but each can be identified throughout the law. Id. at 51.
. . .
Slaves were property. They were bought and sold like other goods. Slave dealers had a bad reputation: the seller of a slave was required to warrant that the slave was free of defects; eventually this warranty was implied in the contract of sale. Id. at 51.
. . .
Slaves were not people (pro nullis habentur) and so could neither sue nor themselves be sued. They could own nothing and anything they acquired, whether a piece of property or the benefit of an obligation, they acquired for their owners. They could not make the position of their owners worse: so they could not alienate property which belonged to their owners; nor could they bring their owners under any obligation. Accordingly, their owners could not be sued on account of their dealings either. Id. at 52.
Bradley, Keith R., “Roman Slavery and Roman Law.” Historical Reflections / Réflexions Historiques, Vol. 15, No. 3 (Fall 1988): 477-495.
(T)he Roman law of slavery is distorted, imbalanced, lacking in historical comprehensiveness. The law is also at times extremely contorted, the result, I think, of the unique character of slavery. Socially the slave was an alien and before the law the slave was rightless, an object to be controlled. But if legal regulation of slaves as a form of property was both desirable and necessary, in practical circumstances, real life if you will, it was impossible to deny the humanity of the slave . . . The slave, that is to say, could not be regulated like any other type of property and so generation after generation of lawyers, stumbling on this block, produced law that on occasion approached absurdity. Id. at 485.
. . .
(U)nder the Republic it was illegal for evidence to be taken from Roman citizens by torture; under the Principate there was some erosion of this principle, but in the main the tendency remained for torture to be applied predominantly to slaves. Id. at 486.
. . .
The rationale was that since the slave did not exist before the law there could be no obstacle to the use against him of modes of treatment deemed inappropriate for members of society proper. The application of torture to the slave was therefore a sign of his formal exclusion from the civic community. But while the validity of torturing slaves was admitted, the value of torture itself as a means of gathering reliable information was simultaneously brought into question . . . The argument is strained and ends almost in paradox: as chattels, slaves could be tortured, but because of the human dimension the slave's evidence could turn out to be useless. Id. at 487.
The long shadow of Roman slave law . . . or not, in antebellum Louisiana
Herman, Shael. “The Contribution of Roman Law to the Jurisprudence of Antebellum Louisiana,” 56 La. L. Rev. (1996): 257-315.
The only American state among fifty with a Romanesque civil code, Louisiana contracted its debt to Roman law during a formative period before statehood when the Louisiana territory belonged first to France and then to Spain. Id. at 258.
. . .
In general, Louisiana courts seem to have lacked any moral compunction about the institution of slavery. In fact, they exhibited a devotion to the logic of the Roman juridical method, even when the method was invoked to protect slave traffickers. Id. at 272.
Palmer, Vernon Valentine. “The Origins and Authors of the Code Noir,” 56 La. L. Rev. (1996): 363-407.
The Code Noir marked France's historic rendezvous with slavery in the Americas. It was one of the most important codes in the history of French codes. First promulgated by Louis XIV in 1685 for his possessions in the Antilles, then introduced in Louisiana in 1724, this code was, unlike the Custom of Paris, the only comprehensive legislation which applied to the whole population, both black and white . . . No legislation was more frequently amended and regularly adapted to adjust to France's evolving experience with slavery. Furthermore, perhaps no aspect of the Code – whether one refers to its motives and aims, compares it to other slave systems, or questions its enforcement – is free of contemporary controversy. Id. at 363.
. . .
The Code Noir, this research unveils, is a code drafted in the Antilles by the highest officials in the islands, the Governor-General and the Intendant. These officials followed royal instructions . . . The instructions did not authorize recourse to Roman rules, and there was not one allusion to a Roman rule, text or term in any of these documents . . . The grounding of the code is fifty years of France's own experience with slavery in the New World, not its reliance on the ancient law of Rome. The consequences of this discovery cause the Rome-based thesis and its spiraling corollaries to fall to the ground. Id. at 366-367.