Law and Justice in Caesar`s Gallic Wars

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Hofstra Law Review
Volume 33 | Issue 2
Article 6
2004
Law and Justice in Caesar's Gallic Wars
Russ VerSteeg
Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr
Part of the Law Commons
Recommended Citation
VerSteeg, Russ (2004) "Law and Justice in Caesar's Gallic Wars," Hofstra Law Review: Vol. 33: Iss. 2, Article 6.
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VerSteeg: Law and Justice in Caesar's Gallic Wars
LAW AND JUSTICE IN CAESAR'S GALLIC WARS
Russ VerSteeg*
INTRODUCTION
Historians have written so much about Julius Caesar that it may
strike one as presumptuous to propose to add anything of value that is
novel today. The present study has a rather limited scope. My method
has been to focus on Caesar's own writing. In particular, using Caesar's
monograph on the Gallic Wars, De Bello Gallico, as a basis, this article
attempts to gain some insight into his thinking about law.'
We know that Caesar had a great deal of practical experience in
law. He studied law, pled a number of cases in the Roman law courts,
and held several positions that required him to apply legal principles. 2 In
addition, legal questions significantly affected Caesar's political life and
his most important political decisions. In fact, in some respects, legal
questions dominated much of what he did in his life.3 Thus, it is clear
that he was well aware of the principles of practice, procedure, and
* Professor, New England School of Law, Boston, Massachusetts; A.B. (Latin &
Education) University of North Carolina at Chapel Hill (Phi Beta Kappa 1979); J.D. University of
Connecticut School of Law (Magna Cum Laude 1987). Sincere thanks to Dean John F. O'Brien,
Dean of New England School of Law and the Board of Trustees who provided funding for this
Article with an Honorable James R. Lawton Summer Research Stipend.
1. Since Caesar did not write the last book of De Bello Gallico, I have omitted that text from
my study. See GAIUS SUETONIUS TRANQUILLUS, Julius Caesar, in THE TWELVE CAESARS, § 56 at
34 (Robert Graves trans., 1975) ("Hirtius, who finished 'The Gallic War', left incomplete by
Caesar, add[ed] a final book."). In order to keep this project manageable, it was necessary to limit
the scope of historical research. Therefore, for biographical information about Caesar, this Article
relies primarily on four biographies, two ancient and two modem: GAtUS SUETONIUS
TRANQUILLUS, Julius Caesar, in THE TWELVE CAESARS, 9-49 (Robert Graves trans., 1975)
[hereinafter "SUETONIUS"]; PLUTARCH, Caesar, in FALL OF THE ROMAN REPUBLIC: Six LIVES BY
PLUTARCH, 243-310 (Rex Warner trans., 1976) [hereinaher "PLUTARCH"]; CHRISTIAN MEIER,
CAESAR: A BIOGRAPHY (David McLintock trans., 1995) [hereinafter "MEIER"]; and, MATTHIAS
GELZER, CAESAR: POLITICIAN AND STATESMAN (Peter Needham trans.,
"GELZER"].
1968) [hereinafter
2. See infra part I.A.
3. See infra part I.B.
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substantive Roman law operative in the late Roman Republic. In order to
provide background and context, Part I describes these two important
aspects of the manner in which law affected Caesar's life: namely, his
own legal training and experience, and the legal issues that affected his
most important decisions.
Drawing on the text of De Bello Gallico, Part II considers Caesar's
thoughts regarding law in the abstract. Historians have acknowledged
that the text of De Bello Gallico provides a lens through which we may
perceive some of Caesar's thoughts. For example, in discussing De Bello
Gallico, Christian Meier remarks: "Though ostensibly a campaign
report, it is also a highly idiosyncratic expression of the author's
personality. ' 4 According to Meier, "This book... is of the greatest
interest as Caesar's portrayal of himself.",5 Part II identifies two types of
issues in an effort to uncover what Caesar thought about law and its role
in society. The first type of issue that it addresses appears in his
descriptions of "foreign laws" (i.e., non-Roman laws). At several points,
Caesar digresses to mention, and occasionally to discuss, laws and legal
features of the Gauls, Germans, and Britons. By considering these texts,
we may be able to deduce something about what Caesar thought about
justice. Second, Part II also looks at isolated statements he makes which,
in some fashion, relate to justice, fairness, obligations, and punishments.
An evaluation of these statements also adds to our understanding of
Caesar's conceptualization of jurisprudence. The goal of this study is not
to try to use Caesar's writing to uncover substantive rules or legal
doctrine.6 Rather, the goal is to examine Caesar's own words and to
"read between the lines," as it were, in an attempt to draw conclusions
about what he thought about law on a more abstract level. What does
Caesar perceive to be the role of law in society? How does he define
justice?
4. MEIER, supra note 1, at 254; see also id. at 255-56 ("What really interests us is Caesar's
way of describing events and conditions and at the same time presenting himself.").
5. Id. at 253; see also id. at 311 ("[H]e did not record his feelings.... He was inclined to be
reticent and unforthcoming about his motives.").
6. Presumably, given the wealth of legal references in his writing, it would be possible to
undertake such a task. See infra note 119 for a more detailed explanation regarding Caesar's
references to law in De Bello Gallico.
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CAESAR'S GALLIC WARS
2004]
I.
BACKGROUND & CONTEXT
A. Caesar'sPracticalExperience
As a youth, Caesar was tutored by a freedman, "Marcus Antonius
Gnipho, who had himself been educated in Alexandria and was a master
of both Greek and Latin rhetoric." 7 In 77 B.C., at the age of twentythree, he prosecuted Cornelius Dolabella for extortion, and in doing so,
established himself as an exceptional advocate.8 In the very next year, he
brought a similar action against "Gaius Antonius, who as legatus in the
Mithradatic War had shamelessly plundered Greece." 9 Then, in 75 B.C.,
Caesar journeyed to the island of Rhodes to study rhetoric under
Apollonius Molon.10
In 73 B.C., Caesar was elected Pontifex Maximus, a position that
he continued to hold throughout his life. As pontifex, his responsibilities
included dealing with a variety of legal issues. According to Meier, the
college of pontiffs, had "to rule on all religious matters" and "[a]part
from this, the college could exercise political influence by tendering
opinions or rulings on infringements of the proper procedures and on
how such infringements should be expiated. It had previously been
responsible for Roman law and kept magistrates' rolls."'"
At about the age of twenty-eight (72 B.C.), he was again involved
in the prosecution of another extortion case. We have a fragment of the
speech that he gave against one Marcus Juncus. 12 Then, in 69 B.C., as
GELZER, supra note 1, at 23 (footnote omitted).
SUETONIUS, supra note 1, § 4 at 10 ("Caesar brought a charge of extortion against
Cornelius Dolabella, an ex-consul who had once been awarded a triumph, but failed to secure a
sentence ....
"; id. § 55 at 33 ("Caesar equalled, if he did not surpass, the greatest orators and
generals the world had ever known. His prosecution of Dolabella unquestionably placed him in the
first rank of advocates ....
" See also GELZER, supra note I, at 22-23 (discussing Caesar's
prosecution of Dolabella in 77 B.C.); MEIER, supra note 1, at 105 ("In 77 Caesar prosecuted Gnaeus
Cornelius Dolabella, the consul of 81, who had just returned in triumph from the province of
Macedonia, before the extortion court.").
9. GELZER, supra note 1, at 23; see also MEIER, supra note 1,at 107-08 (discussing Caesar's
prosecution of Gaius Antonius in 76 B.C., "who had shamelessly enriched himself during the war
against Mithradates" and noting that "[iln this case Caesar almost succeeded").
10. See SUETONIUS, supra note 1, § 4 at 10 ("taking a course in rhetoric from Apollonius
Molo, the best living exponent of the art."); MEIER, supra note 1, at 108; GELZER, supra note 1, at
23.
11. MEIER, supra note 1, at 111.
12. See GELZER, supra note 1, at 29 ("No doubt the speech which he delivered against
Marcus Juncus in an extortion case brought by the Bithynians belongs to this period."); MEIER,
supra note 1,at 138 (discussing Caesar's prosecution of "Marcus Juncus on behalf of a number of
Bithynians after the death of Nicomedes").
7.
8.
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part of his duties as quaestor in western Spain, Caesar traveled
throughout the region serving as a circuit judge, resolving disputes in
various communities.13 Four years later (65 B.C.), he served as curule
aedile. In that capacity, Caesar performed a number of functions that
were either judicial or quasi-judicial. Gelzer describes the aedileship as
"a purely urban magistracy: its function was police control of market
trade and generally the supervision of public order in the streets and
buildings; and it
squares, including the care of the temples and public
14
transgressors."'
on
fines
impose
to
right
the
carried
In the following year (64 B.C.), Caesar served as a judge (iudex
quaestionis) where, according to Suetonius, "he prosecuted men who
had earned public bounties for bringing in the heads of Roman citizens
outlawed by the aristocrats ....
,15 Gelzer explains Caesar's role in
greater detail:
According to the Sullan settlement there were seven jury courts
competent to deal with the various crimes. These were conducted by
praetors. In view of the number of murder cases, it became necessary
to co-opt aedilicians to preside over this court in particular. In the
course of this year, Caesar found himself as one of these quaestioresor
iudices quaestionis. Since Sulla, in his edict authorizing the
proscriptions, had provided that the proscribed might be killed with
impunity, it was questionable whether prosecutions of this kind were
legally admissible. Caesar decided that they were-understandably,
in
6
view of his own experiences during the reign of terror.'
13. See SUETONIUS, supra note 1, § 7 at 1-12 ("As quaestor Caesar was appointed to western
Spain where the governor-general ... sent him off on an assize circuit."); GELZER, supra note 1, at
32 ("As quaestor he was assigned to the propraetor of Further Spain, and as his representative
administered justice on a section of the circuit, finding many opportunities to lay the provincials
under obligation to himself.") (footnote omitted); MEIER, supra note 1, at 141 ("Caesar served his
quaestorship in 69 in the province of Hispania Ulterior (southern Spain), where he was responsible
for conducting court proceedings in parts of the province.").
14. GELZER, supra note 1, at 37 (footnote omitted); see also MEIER, supra note I, at 148 ("In
66 he was elected aedile for 65. The aediles were responsible for policing the public order (unless it
was severely threatened), market policy, the supervision of baths and brothels, the provision and
distribution of grain, and the supply of water. For these purposes the office carried a measure of
jurisdiction.").
15. SUETONIUS, supra note 1, § 11 at 12.
16. GELZER, supra note 1, at 42 (footnotes omitted); see also MEIER, supra note 1, at 149
(mentioning a case in 64 B.C. where "Caesar was presiding over a jury court when two men [one of
whom was the notorious Cataline] appeared before it, one accused of having committed a murder on
Sulla's instructions, the other of having killed a number of citizens who had been legally proscribed,
and of having collected the price on their heads from the public treasury").
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During this period, Caesar played a role in the prosecution of Gaius
Calpurnius Piso, 17 defended a Numidian nobleman, and was a principal
judge in the case against Gaius Rabirius. 18 Thus, for an entire year,
Caesar served as a judge, a position which specifically and exclusively
concerned serious legal affairs.
In 63 B.C., he was asked for his opinion regarding the disposition
of the Catlinarian conspirators. 19 The first speakers on this matter had all
proposed a death penalty. In his speech, Caesar suggested that life in
prison was a more severe penalty than death. This argument tells us
something about Caesar's legal philosophy and reasoning. Gelzer
summarizes Caesar's reasoning:
To carry out an execution on the strength of the decree conferring
authority on the consuls was a measure dictated by an extreme
emergency: it ran contrary to the generally recognized legal principles
existing among the Roman people, which had been confirmed in a
number of recent laws. He was thinking of the law sponsored by Gaius
Gracchus in 123, which provided that a magistrate who had put Roman
citizens to death without trial should be brought before the popular
court and outlawed, and that, generally, no decision should be made
about the life of a Roman citizen except by the People, nor should
20
anyone be put to death without a regular trial and sentence.
Caesar expressly invoked law, arguing "that the death
penalty... was inconsistent with Roman practice," and that "this was a
new kind of punishment. He did not dispute the right to introduce a
change of this sort, but claimed that there was now no good reason for
going outside the framework of the existing laws ....
,,
During his year as governor of Further Spain (61 B.C.), he no doubt
dealt with numerous legal problems in the day to day administration of
17. The prosecution was for the crime of repetundae, the crime of "extortion of money by
provincial governors." J.A. CROOK, LAW AND LIFE OF ROME 269 (1967). For a more detailed
discussion of the crime of repetundae, see generally O.F. ROBINSON, TtE CRIMINAL LAW OF
ANCIENT ROME 81-82 (1995).
18. See SUETONIUS, supra note 1, § 12 at 13 ("Caesar, chosen by lot to try Rabirius ...
see also GELZER, supra note 1, at 45 ("He [Rabirius] was accused of a crime against the state, in
that, in the year 100, he had killed Saturninus, a sacrosanct tribune of the people, after the consul
Marius had promised him protection on behalf of the community.... Caesar himself was nominated
as one of the judges.., and the lot fell to him to give judgment. He pronounced the death
sentence."); MEIER 159-60 (discussing Caesar's prosecution of Rabirius and the revival of an
ancient and basically defunct form of trial by a two-man tribunal, chosen by lot).
19. See MEIER, supranote 1, at 170-73.
20. GELZER, supranote 1, at 51.
21. Id.; see also MEIER, supra note 1, at 170-73 (discussing Caesar's speech in the Senate
regarding the disposition of and punishments proposed for the Catilinarian conspirators).
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the province. We know for example that he amended certain laws
relating to creditors and debtors.22
As consul in 59 B.C., he dealt with legal issues on a daily basis. For
example, Caesar used the popular assembly to reduce, by one-third, the
debt of Roman tax-farmers in the province of Asia. 3 He saw to it that
the treaties which Pompey had negotiated in the East were ratified in the
popular assembly, "thus bypassing the Senate-a proceeding flagrantly
contrary to tradition and one which, as his opponents affirmed, brought
great loss to the treasury, since those areas remained free from tribute. 2 4
He used his dual positions as consul and Pontifex Maximus to help
Publius Clodius become a plebeian through adoption (for the purpose of
becoming a tribune of the Plebs). According to Gelzer, "Legally the
procedure was invalid, because the intervals prescribed for a law-the
agreement of the curiae represented a lex curiata-were not observed,
because no regular pontifical decree was submitted, and finally because
the auspices were not in order .. ."25 He also thoroughly revised the
laws relating to financial abuse by provincial governors, the lex Julia
in force from then on throughout the
repetundarum, "which remained
26
whole Imperial period.,
While in Gaul (58-50 B.C.), he routinely set aside time to hold
assizes. On several occasions he held them in northern Italy and at least
once he held them in Illyria.27 According to Suetonius, after the Civil
War, he undertook extensive plans for a number of legal reforms, which
were prevented by his assassination. Included in these reforms were an
increase in criminal penalties 28 and "the reduction of the Civil Code into
22. PLUTARCH, supra note 1, § 12 at 255.
23. GELZER, supra note 1, at 75.
24. Id. (footnote omitted); see also id. at 79 (remarking that Caesar's accomplishments as
consul on behalf of Pompey and Crassus "consisted of a series of gross infringements of the
constitution, for which he alone bore responsibility") (footnote omitted).
25. Id. at 77.
26. Id. at 94. For a more detailed explanation of this statute, see ROBINSON, supra note 17, at
81-82.
27. See CAESAR, THE CONQUEST OF GAUL § 6.5 at 178 (S.A. Handford trans., 1951)
[hereinafter "HANDFORD"] ("Caesar then.., since Gaul was quiet, set out for northern Italy as usual
to hold his assizes."); id. § 2.2 at 73 ("He now took the army into winter quarters in the country of
the Sequani somewhat earlier than the usual time of year, and leaving Labienus in command started
for northern Italy to hold the assizes."); id. § 5.2 at 129 ("On the completion of the assizes in
Northern Italy, Caesar set out for Illyria .... "); id. ("After disposing of this matter and holding his
assizes in Illyria, Caesar returned to Italy and from there went to rejoin the army."); see also
GELZER, supra note 1, at 112 (noting that shortly after beginning his first campaign in Gaul,
"[Caesar] himself left for Cisalpine Gaul in order to administer justice on the circuit there.").
28. SUETONIUS, supra note 1, § 42 at 28.
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manageable proportions, by selecting from the unwieldy mass of statutes
only the most essential, and publishing them in a few volumes. 2 9
In sum then, it is apparent that Caesar's legal experience was
extensive. He studied rhetoric and gained practical experience as an
advocate by arguing cases in the Roman courts. He held governmental
and religious positions which required him to know and apply law and
legal principles as part of his daily routine. In doing so, he became
intimately familiar with both the practical and philosophical aspects of
Roman substantive and procedural law.
B. Legal Issues Affecting Caesar'sDecisions
In addition to his direct involvement with law and various legal
matters, it is striking just how many of Caesar's decisions throughout his
life were driven by legal issues. For example, some have speculated that
his decision to travel to Rhodes in 76/75 B.C.-ostensibly to study
rhetoric-may have been also motivated by a desire "to avoid certain
charges arising from his prosecution of Dolabella."3 ° Indeed, he seems to
have thought about law a great deal. Suetonius remarks that, according
to Cicero, "Caesar quoted the following lines from Euripides's
Phoenician Women on several occasions:
Is crime consonant with nobility?
Then noblest is the crime of tyranny31
In all things else obey the laws of heaven."
He apparently had a sense of humor about lawyers. While Caesar
was in Gaul, Cicero wrote to Caesar asking him to take on a young
lawyer named Trebatius as a recruit. "Caesar immediately expressed his
warmest thanks with a witty double-edged remark to the effect that
among his many officers there had hitherto been no one who could draw
up a deed of security., 32 And of course legal considerations were
reflected in his infamous statement regarding the reasons for divorcing
33
his wife when she was suspected of taking part in illegal activities.
As consul, Caesar had accomplished a great deal using methods
that certainly stretched, and indeed, violated a number of traditional
SUETONIUS, supra note 1, § 44 at 28-29.
30. See MEIER, supra note 1, at 108; see also supra text accompanying note 8.
31. SUETONIUS, supra note 1, § 30 at 23 (referring to the third book of Cicero's essay De
29.
Officiis).
32. GELZER, supra note 1, 138 (footnotes omitted).
33. See id. at 60 ("Asked the actual reason for divorcing his wife, he replied, 'Because in my
opinion members of my household must be as free of suspicion as of crime'.") (footnote omitted).
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procedural means and laws. Because of his illegal tactics and methods, a
group of Senators threatened legal action against him. His opponents
"argued that all his acts to date were illegal, since they had been carried
out in an unconstitutional manner., 34 "If possible they surely intended to
bring him before a criminal court and at least to destroy him as a
politician and citizen." 35 At one point, the Senate offered a compromise.
Some Senators proposed to reintroduce all of Caesar's laws for post hoc
ratification: "They would accept all Caesar's laws if only he would
reintroduce them and thereby admit that he had acted illegally, that laws
introduced in this manner were invalid, and that the traditional
institutions must be unconditionally respected. In return for repairing the
breaches of the law they offered to guarantee Caesar's legislation and
naturally to grant him indemnity., 36 Caesar refused. Thus, the threat of
litigation remained as his consulship was drawing to a close.
Meanwhile, important legal questions swirled around his
appointment as governor to Gaul. Because the Senators were afraid that
Caesar might become too powerful if he were assigned an important
province after his consulship, they had passed legislation designed
instead to give him meaningless tasks. Caesar's opponents "managed to
carry a senatorial decree, which gave the future consuls of 59, on
conclusion of their year of office in Rome, the ludicrous task of
37
demarcating 'the forests and woodland paths' belonging to the state.",
However, a law passed by the Popular Assembly superseded the
Senate's decree. The lex Vatinia assigned Caesar to the province of Gaul
as proconsular governor. 8
Prior to setting out to take command of his troops in Gaul, his
opponents-precisely as he had feared-first threatened to and then, in
fact, initiated criminal charges against him for his activities while consul
34. Id. at 84 (footnote omitted); see also MEIER, supra note 1, at 233 (discussing Clodius'
attack on Caesar's laws enacted during his consulship).
35. GELZER, supra note 1, at 84.
36. MEIER, supra note 1,at218.
37. GELZER, supra note 1, at 65 (footnote omitted); see also id. at 84.
38. See id. at 86. For more on the legalities involved in Caesar's appointment, and in
particular, the addition of Transalpine Gaul (proposed by Pompey in the Senate), see id. at 87. See
also MEIER, supra note 1, at 213 ("Vatinius brought in a law granting Caesar the province of Gallia
Cisalpina, together with Illyria (the Dalmatian coastal strip), for five years. This command had now
become more necessary than it had perhaps at first appeared. Having so often infringed the law, he
had to be offered security from prosecution in the immediate future, as well as an opportunity to
make conquests, so that he could eventually return to Rome in safety."); id. at 216 (discussing the
addition of Gallia Transalpina to Caesar's jurisdiction).
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in 59 B.C. In order to avoid prosecution, Caesar departed for Gaul more
precipitously than he would have otherwise.3 9
Then, while in Gaul itself, a number of Senators questioned the
legality of his activities there. 40 Furthermore, legal questions surrounded
his continuation as proconsular governor. In 56 B.C. Lucius Domitius
Ahenobarbus "was... canvassing on the programme of dismissing
Caesar from his illegal command."'4 1
Years later, while he was planning his return to Rome after his
governorship in Gaul, he again faced the prospect of opponents who
wanted to bring charges against him, once he had returned to civilian
status. Because of the timing involved, he hoped to be elected consul for
42
the year 48 B.C. As consul, he would be protected from litigation.
Therefore, he explored means by which he could run for the consulship
while remaining outside of Italy, in absentia. In this way, once elected
he could then return to Rome shielded from being brought to trial by the
power of office.4 3 The trick, then, was to have his friends in Rome pass
legislation granting him the special privilege of being a candidate for
consul in absentia. Apparently Pompey meant to pass legislation to this
effect but, due to a technicality, he failed to do so. 44 Marcus Claudius
39. See SUETONIUS, supra note 1, § 23 at 18-19 ("Then Lucius Antistius, a tribune of the
people, arraigned Caesar who, however, appealed to the whole college of tribunes, pleading absence
on business of national importance; and thus staved off the trial."); id § 30 at 22 (discussing
threatened litigation against Caesar both following his consulship and following his return from
Gaul); GELZER, supra note 1, at 79 ("Without doubt, all Caesar's acts to date [as consul] were
formally invalid as his opponents maintained; without doubt he would be called to account for them
at the end of his year of office .... "); id at 97 (At the close of Caesar's consulship, the Senate
proceeded to debate the legality of Caesar's acts: "All his acts as consul were to be invalidated as
unconstitutional." He decided not to wait for this debate, and headed to Gaul: "Eventually he
decided that it would be better not to wait for the verdict, crossed the pomerium and so assumed
proconsular imperium.").
40. See GELZER, supra note 1, at 123-24 (discussing the Senate's acknowledgement that
Caesar's actions in Gaul were legal); See also MEIER, supra note 1, at 236-37 (discussing questions
regarding the legality of Caesar's having made war on Gaul). Citing Cicero for example, Meier
says, in sum, "And at least some had no doubt that they were unjust by conventional standards and
undertaken in defiance of the rules of international law." Id.
41. GELZER, supra note 1, at 120 (footnote omitted).
42. See ROBINSON, supra note 17, at 16 ("[M]agistrates in office who had imperium, were
totally immune from criminal accusations during, but only during, their term .. ") (footnote
omitted).
43. See MEIER, supra note 1, at 299 (discussing and explaining the legal reasons why Caesar
wished to stand for the consulship in absentia and why he desired that his governorship should not
end with him becoming a private citizen).
44. See id. at 327 (Meier discusses "the law allowing [Caesar] to conduct his candidacy in
absentia," but also the various technical snags: "When the couriers finally reached Caesar, the law
[i.e., the law of Pompey's declaring 'that in the future no candidacy might be pursued in absentia']
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Marcellus, consul, "proposed that Caesar should be forbidden to stand
for the consulship without appearing at Rome in person, since a decree
'' 5
against irregularities of this sort still appeared on the Statute Book. 4
Suetonius remarks: "Here Marcellus was on firm legal ground. Pompey,
when he introduced a bill regulating the privileges of state officials, had
omitted to make a special exception for Caesar in the clause debarring
absentees from candidacy; or to correct this oversight before the bill had
been passed, engraved on a bronze tablet, and registered at thePublic
Treasury.''6
When the Senate ultimately decreed that Caesar could not stand for
the consulship without dismissing his army and entering the city as a
private citizen,4 7 Caesar decided that too much personal risk was
involved. Therefore, the legal struggle over whether he could run for
was already cast in bronze and deposited in the archive. Pompey went and made a correction, but it
was doubtful whether this would have furnished grounds for a legal claim.").
45. SUETONIUS supranote 1, § 28 at 21.
46. Id.; see also GELZER supra note 1, at 151 (noting the discussion between Pompey and
Caesar concerning the possibility that "Caesar was to be granted the right to stand for the consulship
of 48 in absentia; in other words, he was to be allowed to keep his province until the end of 49 and
so be immune from prosecution") (footnote omitted); id.
at 152-53 (discussing Caesar's opponents
legal maneuvering to appoint successors to him in Gaul, timed in such a way that he would become
a regular citizen and therefore subject to prosecution); id. at 170 ("Caesar had only partly been able
to protect himself against this danger by the popular decree of 52 which allowed him to stand for the
consulship for 48 without appearing in person. For as a result of Pompey's new law on the
administration of the provinces it had become doubtful whether he would remain in possession of
his provinces from March 1, 50, to December 29, 49, as could implicitly be taken for granted in the
year 55 when only the Sempronian and Cornelian laws were in force."); id.
at 173 (Gelzer provides
additional explanation of the issue of appointing a successor to Caesar in Gaul and thus prosecuting
him once he became a private citizen. In the early spring of 50 B.C., the Senator, Marcellus,
"declared that as the war was now over, the army should be dismissed, and further, that the popular
decree about Caesar's candidature had been superseded by the later law of Pompey, so that a
successor could be appointed at 6nce.") (footnote omitted); id. at 180 ("His legal position rested on
the decree of the ten tribunes, freeing him from the need to canvass in person for his future
consulship. If this was recognized, his imperium would formally continue until he entered the city,
even after he had given up his army and provinces. He could be elected to the consulship in
absentia, as consul would be beyond the reach of the law, and could reasonably expect to findways
and means to maintain his position thereafter, provided that Pompey did not remain in possession of
his army. Now the legality of the popular decree was precisely what his opponents were
questioning. But the decision on whether it had been invalidated by Pompey's law on magistracies
depended ultimately on the balance of power, and it was therefore important that Pompey'should
give up his army and provinces at the same time as Caesar.") (footnotes omitted).
47. See GELZER, supra note 1, at 190-91 (On January 1, 49 B.C., "the Senate voted by an
overwhelming majority for the motion of Scipio that Caesar was to dismiss his army by a fixed date
on pain of being regarded a public enemy. The special law in his favour was no longer recognized
as valid. He would thus have to appear in Rome in person during the summer in order to stand for
the consulship and would have lost his imperium on crossing the pomerium."); id. at 192 (explaining
that the Senate's legal action in passing a senatus consultum ultimum on January 7, 49 B.C. "was
fully in accordance with the constitutional law of the time").
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consul in absentia was a significant factor in his decision to cross the
Rubicon and initiate civil war. Indeed, Plutarch relates that Caesar later
blamed his opponents, arguing that he was merely trying to avoid
prosecution: "They made this happen; they drove me to it. If I had
dismissed my army, I, Gaius Caesar, after all my victories, would have
been condemned in their law courts. ' '4
Thus, in addition to incidental matters related to law, several
important decisions in his adult life turned on the legality of specific
acts. The procedures he employed, in other words the means by which
he accomplished a number of tasks during his consulship, triggered the
threat of litigation against him. The legality of the manner in which he
was appointed as proconsular governor of Gaul was called into question
as were his actions themselves while in Gaul. And, then finally, the
legality of whether he would be permitted to stand for consul in 48
B.C.-which in turn was related to the very legality of his conduct while
consul in 59 B.C.-was a key factor which sparked the outbreak of the
Roman civil war.
II. CONCEPTS OF JUSTICE REFLECTED IN DE BELLO GALLICO
A.
ForeignLaws and Justice
1. General
Caesar went to Gaul as proconsular governor in 59 B.C. Quintus
Caecilius Metellus Celer, who had originally been assigned to the post,
died unexpectedly, thus making it possible for Caesar to receive the
position. 49 Even those with only passing familiarity with Caesar's De
Bello Gallico can probably tell you that, according to Caesar, Gaul was
divided into three parts: "All Gaul is divided into three parts., 5 ° To be
sure, this is the opening of Book One of the De Bello Gallico. After
51
identifying the names of the groups who lived in the three regions,
Caesar succinctly states, "[A]ll these differ from one another in
language, institutions, and laws."52 But he does not get around to
PLUTARCH supra note 1, § 46 at 288 (footnote omitted).
49. See GELZER supra note 1, at 85; see also supra note 36 and accompanying text regarding
the Senate's desire to limit Caesar's powers after his consulship.
50. CAESAR, THE GALLIC WAR § 1.1 at 2-3 (H.J. Edwards ed., trans., 2000) (1917)
[hereinafter "GALLIC WAR"] (Gallia est omnis divisa in partes tres.).
51. The Belgae, Aquitani, and Celts.
52. GALLIC WAR, supra note 50, § 1.1 at 2-3 (Hi omnes lingua, institutis, legibus, inter se
differunt); see also MEIER supra note 1, at 262 (Regarding this section of De Bello Gallico, Meier
48.
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explaining much about their laws until Book Six, when he sets aside the
space for digression. 3
The facts about Gallic law and procedure that Caesar chooses to
mention tell us worthwhile things. In particular, he emphasizes that the
Gauls have a systematic method and structure for adjudication. It is as if
he is saying, "Look, these people are not abject barbarians-they have
judges and legal procedure." In addition he remarks that they have a
process for selecting judges and leaders, a legal means for handling
marital property and marital relations, and legal mechanisms for
providing safety and security for their citizens.
2. Judges and Legal Procedure
The study of ancient legal systems suggests that, as a rule,
procedural laws ordinarily, chronologically speaking, precede
substantive laws.54 Caesar seems to recognize the importance of having a
legal process and of having certain individuals to serve as judges or
decision makers. One of the first points that he raises about the Gauls is
that specific persons have the authority to resolve legal disputes.
In Gaul, not only every tribe, canton, and subdivision of a canton, but
almost every family, is divided into rival factions. At the head of these
factions are men who are regarded by their followers as having
particularly great prestige, and these have the final say on all questions
that come up for judgement and in all discussions of policy. 55
Furthermore, Caesar claims that this is a very old practice.56 He
notes that much the same is true for the Germans as well: "In peace-time
there is no central magistracy; the chiefs of the various districts and
cantons administer justice and settle disputes among their own people. 57
What is especially striking, though, is the reason that Caesar gives
for the Gauls having certain persons identified as judges: ne quis ex
plebe contra potentiorem auxili egeret (lest any commoner lack
writes: "Only at one point does he break out of the narrow narrative confines. This is in his sixth
book, where he gives a comparative ethnology of the Gauls and the Germans.").
53. GALLIC WAR, supra note 50, § 6.11 at 332 (Quoniam ad hunc locumperventum est, non
alienum esse videtur ad Galliae Germaniaequemoribus et quo different hae nationes inter sese
proponere.).
54. See MICHAEL GAGARIN, EARLY GREEK LAw 20, 50, 135 (1986).
55. HANDFORD, supra note 27, § 1.1 at 30.
56. GALLIC WAR, supra note 50, § 6.1 at 332-33 ("And this seems to have been an ordinance
from ancient days, to the end that no man of the people should lack assistance against a more
powerful neighbor ....) (Itaque eius rei causa antiquitus institutum videtur, ne quis ex plebe
contra potentiorem auxili egeret).
57.
HANDFORD, supra note 27, § 1.2 at 36.
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assistance against someone more powerful). Jurisprudentially speaking,
this is significant because Caesar asserts that the purpose of having
specific persons identified as judges is to protect the interests of the
lower class citizens. Hence, he acknowledges that a central goal of
law-of having judges and procedure-is to prevent the more powerful
from oppressing the weak. Caesar's mere mention of this fact seems to
be a ringing endorsement of the principle that one of the purposes of law
ought to be the protection of the weak. To be sure, he saw himself as
someone who promoted the interests of the common people against
those of the wealthier and more established nobility, the optimates5
In addition to his assertion that the leaders of factions served as
judges or decision makers, 59 Caesar also explains the role of the Druids
as judges. First he notes that there was a dualism in the leadership of
Gallic society (In omni Gallia eorum hominum, qui alique sunt numero
atque honore,genera sunt duo.) In Gallic society leadership was divided
between two classes, a priestly class and a warrior class. That is to say,
not only was the society divided into two parts (nobility and
commoners) but the nobility was further divided into two parts (Druids
and Knights). He notes that Gallic society had three subdivisions. The
commoners basically are enslaved to the two upper classes, the Druids
and Equites. 60 The Druids hold distinguished positions in Gallic society.
Although they are religious officials, they also act as judges.
They [the Druids] act as judges in practically all disputes, whether
between tribes or between individuals; when any crime is committed,
or a murder takes place, or a dispute arises about an inheritance or a
boundary, it is they who adjudicate the matter and appoint the
compensation to be paid and received by the parties concerned.61
Caesar reports that the Druids convened at certain times of the year,
and that Gauls gathered from all over to bring their cases to them for
resolution.6 2 Furthermore, it is significant that he identifies both the
topics of dispute and also the functions of the judges. He subdivides
disputes that must be resolved into public and private: publicis
58. See generally MEIER, supra note 1, at 197-203.
59. See supra text accompanying note 55.
60. See HANDFORD, supra note 27, § 1.1 at 31 ("The common people are treated almost as
slaves, never venture to act on their own initiative, and are not consulted on any subject.").
61. Id.§ 1.1 at 31-32.
62. GALLIC WAR, supra note 50, § 6.13 at 336 (Huc omnes undique, qui controversias
habent, conveniunt eorum decretis iudiciisqueparent.); see also MEIER supra note 1, at 238 ("A
close connection obviously existed among the priests, the druids, who met once a year at a sacred
place in the middle of Gaul. Here numerous disputes were settled.").
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privatisque.63 Of course the ancient Romans are famous for having
64
articulated a clear distinction between public law and private law.
Whether the Gauls actually distinguished their laws in this manner or
whether Caesar was merely projecting his own preconceptions onto
them is difficult to know. Yet, he specifically mentions matters that the
Romans considered public law, crime and murder (si quod est admissum
facinus, si caedes facta) and also matters that the Romans considered
private law, issues related to inheritance and property (si de hereditate,
de finibus controversia est).65 One important matter for any decision
maker at.the outset of litigation is to classify a dispute as either public or
private.
In a similar vein, Caesar acknowledges two distinct goals of legal
systems: to punish wrongdoers and to compensate those who have been
damaged for their losses. According to Caesar, the Druids establish
praemia (compensations) 66 and poenas (penalties). Again, Caesar may
be projecting his own concepts of how a legal system ought to be
organized. Nevertheless, his description informs us that in his mind-to
his way of thinking-the Gallic system was comprehensible because it
did three specific things: 1) employed specific persons as judges;
2) separated public law from private law; and, 3) both compensated
victims and punished wrongdoers. Even if that was all that it was able to
accomplish, such a system still contained the rudiments of an effective
legal organization.
Enforcement is always a problem in any legal system. Unless a
system has officials such as marshals or sheriffs empowered to imprison
criminals or to force wrongdoers to pay damages to injured parties, it
lacks the teeth necessary to function effectively. 67 According to Caesar,
those who failed to comply with the judges' decisions were treated as
outcasts and criminals.
Any individual or tribe failing to accept their award is banned from
taking part in sacrifice-the heaviest punishment that can be inflicted
upon a Gaul. Those who are laid under such a ban are regarded as
impious criminals., Everyone shuns them and avoids going near or
speaking to them for fear of taking some harm by contact with what is
63.
64.
65.
66.
1983).
GALLIC WAR, supra note 50, § 6.13 at 336.
See Russ VERSTEEG, LAW IN THE ANCIENT WORLD 269, § 10.01 [A] (2002).
GALLIC WAR, supra note 50, § 6.13 at 336.
See OXFORD LATIN DICTIONARY 1434 (praemium, "benefit of law") (P.G.W. Glare ed.,
67. See VERSTEEG, supra note 64, at 30-31,125, 138, 140,220-21 (2002).
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is denied them, and they
unclean; if they appear as plaintiffs, justice
68
are excluded from a share in any honour.
Presumably, then, those who were held in contempt in this manner
lost their rights as citizens and were de facto exiled. How effective this
deterrent enforcement mechanism was in practice we simply have no
way of knowing.
Apparently, the Gauls had established a protocol for selecting a
chief justice of the Druids. Caesar implies that the chief justice retained
his position for life, for he only raises the possibility of needing a
successor upon his death (hoc mortuo). 69 And, upon his death, the Druid
who was next highest in rank succeeded as chief justice (si qui ex
reliquis excellit dignitate succedit).70 But in the event that there were
more than one of similarly exalted rank, then they put it to a vote of the
Druids to determine the next chief justice (aut, si sunt plures pares,
suffragio druidum).71 Or, in the alternative, if for some reason either of
those methods failed, as a last resort, they could resort to some method
of fighting. Whether it was a ritual combat or merely a free-for-all is
difficult to discern from Caesar's brief comment: nonnumquam etiam
armis de principatu contendunt ("occasionally they even contest the
position of chief justice with arms"). 72 Nevertheless, what is worthy of
note in this regard, is that there was, apparently, a system in place which
gave preference, first, to the next highest ranking Druid, second,
established that a vote would determine the successor if there were more
than one Druid with an equal claim, and third, then only as a last resort,
was there any need for violence of any sort. Simply having a system that
prefers an orderly means of succession based on either rank or election
over violence suggests a developed legal and social system, one that
Caesar respected enough to mention in his writing.
It is worthy of note also that the Gauls provided special privileges
for their judges. The Druids did not participate in military affairs nor did
they pay taxes (Druides a bello abesse consuerunt neque tributa una
cum reliquis pendunt, militiae vacationem omnium rerum habent
immunitatem.). 73 It is logical that a people would not wish to risk the
lives of its most respected judges in war. And it is foresighted to exempt
68.
69.
70.
71.
72.
73.
HANDFORD supra note 27, § 1.1 at 31-32.
GALLIC WAR supra note 50, § 6.13 at 336.
Id.
Id.
Id.
Id. § 6.14 at 336.
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the judiciary from taxes. Tax exemptions may serve as disincentives to
accept bribes.
3. Marriage & Family
Caesar also takes special note of the way that the Gauls manage
their marital property and family relations.
When a Gaul marries, he adds to the dowry that his wife brings with'
her a portion of his own property estimated to be of equal value. A
joint account is kept of the whole amount, and the profits which it
earns are put aside; and' when either dies, the survivor receives both
shares together with the accumulated profits. Husbands have power of
life and death over their wives as well as their children. When a highborn head of a family dies, his relatives assemble, and if the
circumstances of his death are suspicious, they examine the widow
under torture, as we examine slaves; if her guilt is established, she is
consigned to the flames and put to death with the most cruel
torments.74
Thus, a Gallic husband was required to set aside both his wife's
dowry and an equal contribution from his own property, a bridewealth.
The dowry and bridewealth, then, are able to earn wealth togetherpresumably by some type of commingled investments. Therefore, in the
event that either spouse predeceases the other, the survivor is entitled to
some unspecified portion of the dowry and bridewealth (pars utriusque)
plus the interest on profits earned by them (cum fructibus superiorum
temporum). This system established a measure of security for the
surviving spouse, and may have often provided a means of protecting the
interests of widows.
Caesar equates the legal power of husbands and fathers to that of
the Roman paterfamilas,stating that a husband had complete power over
both his wife and children: Viri in uxores, sicuti in liberos, vitae
necisque habentpotestatem.75 Interestingly, he pauses at this juncture to
relate that when a paterfamilias of noble birth (illustriore loco natus)
74. HANDFORD, supra note 27, § 1.1 at 34-35; GALLIC WAR, supra note 50, § 6.19 at 342-44
(Viri, quantas pecunias ab uxoribus dotis nomine acceperunt, tantas ex suis bonis aestimatione
facta cur dotis communicant. Huius omnis pecuniae coniunctim ratio habetur fructusque
servantur: uter eorum vita superarit,ad eum pars utrisque cum fructibus superiorum temporum
pervenit. Viri in uxores, sicuti in liberos, vitae necisque habent potestatem; et cum paterfamiliae
illustrioreloco natus decissit, eius propinquiconveniunt et, de morte si res in suspicionem venit, de
uxoribus in servilem modum quaestionem habent et, si compertum est, igni atque omnibus tormentis
excruciatasinterficiunt.).
75. See VERSTEEG, supra note 64, at 322 (discussing the Roman legal concept of
paterfamilias),
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dies, the law as a matter of course suspects that the wife may have been
involved in his death, and the wife of the deceased is subjected to
questioning under torture (de morte si res in suspicionem venit, de
uxoribus in servilem modum quaestionem habent). Furthermore, if she is
found guilty in some degree (presumably either directly or indirectlybut we cannot be sure, for the Latin merely says si compertum est ("if it
is confirmed")-she is executed by torture and fire (et, si compertum est,
igni atque omnibus tormentis excruciatas interficiunt).7 6 It is not really
surprising to learn that the Gauls considered a wife's involvement with a
husband's death an extremely serious matter, warranting a painful death
as punishment. Although Caesar does not comment on this practice
either positively or negatively, he certainly could have criticized the
Gauls had he so desired.
4. Provision of Security for the People
One of the principal goals of any legal system is to provide security
for the community. Although it is a law that strikes modern sensibilities
as strange, Caesar mentions a specific Gallic law whose purpose was to
enhance safety and security for the populace.
The tribes which are considered to manage their affairs best have a law
that if anyone hears from a neighbouring country any rumour or news
that concerns the state, he is to communicate it to a magistrate without
speaking of it to anyone else. For experience has shown that impulsive
and ignorant persons are often frightened by false reports into
subversive action, and meddle with important affairs of state. The
magistrates suppress what they think advisable to keep secret, and
The
publish only what they deem it expedient for the people to know.
77
discussion of politics is forbidden except in a public assembly.
To be sure, a law of this nature is antithetical to our modern
doctrines of freedom of speech and freedom of the press. Nevertheless,
whether the means of achieving public security comport with our own is
not, for our purposes, really as important as the fact that the Gauls
sought to enact a law to promote safety and that Caesar thought that such
a law was important enough to write about it.
Caesar discusses still another Gallic law that relates to public safety
and security. According to Caesar, all Gallic tribes, by law, required that
all men answer the leader's call to arms, and, further, that the last man to
arrive at the call to arms was tortured and executed: "A law, common to
76.
77.
GALLIC WAR, supranote 50, § 6.19 at 344.
HANDFORD, supranote 27, § 1.1 at 35.
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all tribes alike, requires all adult males to arm and attend the muster, and
the last to arrive is cruelly tortured and put to death in the presence of
the assembled host., 78 Such a law certainly encourages men to answer
the call to arms promptly. Thus, the law accentuates the importance that
the Gauls placed upon a man's duty to serve in the. military for the
purpose of public defense. Again, although the means by which the
Gauls sought to achieve public safety may alarm modem readers, that
the Gauls promoted public safety as a value worthy of legal protection
and that Caesar chose to mention it are themselves worthy of note.
In two separate passages, Caesar discusses the measures taken by
the Germans to promote national well-being. First, he notes that their
property laws are designed in such a way that no one owns real estate as
private property. Rather, the German property laws required that
individuals move from one parcel to another every year. 79 Caesar
identifies several reasons for this practice. In particular, the first
rationale that he gives is that it ensures that men maintain their warlike
edge-to make them better fighters: "They give many reasons for this
custom: for example, that their men not get accustomed to living in one
place, lose their warlike enthusiasm, and take up agriculture
instead ...
,80
Similarly, he explains that the Suebi, whom he characterizes as the
"most warlike of the German nations," "have a hundred cantons, each of
which provides annually a thousand armed men for service in foreign
wars." 81 Apparently, the Suebi rotated their lifestyles and duties. About
half spent the year in the military while the other half remained at home
growing crops to support the others who were serving in the military. In
the following year, they traded places-those who had been in the
military returned to the farms and those who had been on the farms did a
tour of military duty.
Thus, both agriculture, and military instruction and training, continue
without interruption. No land, however, is the property of private
78. Id. § 6.3 at 160. For more on this law, see MEIER, supra note 1, at 296 ("Every ablebodied man immediately had to appear armed; the last to arrive was tortured to death by the
others.").
79. HANDFORD supra note 27, § 1.2 at 36 ("No one possesses any definite amount of land as
private property; the magistrates and tribal chiefs annually assign a holding to clans and groups of
kinsmen or others living together, fixing its size and position at their discretion, and the following
year make them move on somewhere else.").
80. Id. § 1.2 at 36.
81. Id. § 4.1 at 108.
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individuals, and no one is allowed to cultivate the same plot for more
than one year.82
One aspect of providing community security is to ensure an orderly
transfer of power from one leader to the next. In this regard, Caesar
relates an anecdote about the Aeduans, a Gallic tribe. 83 In short, two
Aeduans claimed to have been elected as the chief magistrate by
legitimate means. The Aeduans called on Caesar to hear arguments and
to decide the matter. This anecdote is interesting for several reasons.
First, Caesar wishes to accentuate the fact that the Aeduans appeal to
him to resolve their dispute regarding the transfer of magisterial power.
But aside from this egotistical reason for relating this particular story,
there are three details about Aeduan law and its relationship to public
security that are worthy of note. To begin with, Caesar claims that
84
Aeduan law prohibits the chief magistrate from leaving the country.
Presumably, such a law would enhance stability in government by
ensuring that the head of the state (summus magistratus) would always
be present to keep his hand on the tiller of state control. Secondly, he
implies that, according to Aeduan election law, elections must be held
openly at a particular place and time. He points out that the candidate
named Cotus was elected "in the presence of a mere handful of people
called together in secret, neither in the proper place nor at the proper
time. ' '85 Election laws of this nature would promote honesty and fairness
by recognizing a process that fostered democratic decision making. It
was important that the public have notice of the time and place for
selecting a leader. An open process with notice promotes a peaceful and
fair mechanism for transferring magisterial power. In addition, Caesar
remarks that the Aeduan laws were designed to discourage nepotism.
It was further pointed out that Aeduan law forbade the election, not
merely to the magistracy but even to a seat on the council, of a near
relation of a person previously elected and still living. Caesar therefore
made Cotus resign his claims, and told Convictolitavus, who had been
82. Id. §4.1 at 108.
83. For more on this anecdote, see GELZER, supra note 1, at 157-58.
84. GALLIC WAR, supra note 50, § 7.33 at 426 (quod legibus Aeduorum eis, qui summum
magistratum obtinerent, excedere ex finibus non liceret). See HANDFORD, supra note 27, § 7.3 at
198 ("As Aeduan law forbade the chief magistrate to leave the country, and Caesar wished to avoid
the appearance of violating this rule of its constitution, he decided to go there in person, and
summoned the whole council and the two disputants to meet him at Decetia.").
85. See HANDFORD, supra note 27, § 7.3 at 198-99 ("Almost all the councillors assembled
there, and informed Caesar that the announcement of Cotus' election had been made by his brother,
the magistrate of the previous year, in the presence of a mere handful of people called together in
secret, neither in the proper place nor at the proper time.").
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at a time when the
appointed constitutionally, under the presidency
86
magistracy was vacant, to continue in office.
This law also promotes public safety by making certain that fresh
blood would constantly be introduced to power. Thus, the laws prohibit
one family from controlling politics as some type of de facto hereditary
monarchy.
5. Conclusion
One may well ask whether Caesar approved or disapproved of the
Gallic and German laws that he discusses. On the whole, it is reasonable
to surmise that he approved. In this regard, it is instructive to recall that
De Bello Gallico was based in large part on the daily reports that Caesar
composed while in the field. Why was it that Caesar was writing reports
of his activities in Gaul and sending those reports back to Rome in the
first place? In part he was using his reports as a means to justify his
continued war efforts and territorial expansion. These reports were
partially propaganda that Caesar used in an effort to keep the Romans
happy and to continue his funding and continued re-appointment. Also
the reports were probably an effort to show the Roman people that the
Gauls were not abject barbarians and that it was worth the Romans'
expenditure of resources there. Thus, he wrote positive, approving things
about their legal system to let the folks back home know that the Gauls
were manageable; that it was not a waste of time, energy, effort, and
resources to have him there with all of his legions. He wants them to
believe that Gaul is a place that has real possibilities and the legal
picture that he wants to paint is one of order and partial security. That
way his descriptions foster the continued financial support and backing
that he needs. If he were to have written back to Rome describing an
uncontrollable situation-one where the people, the laws, and customs
were appreciably different from Roman models, perhaps the senate and
Romans who held the purse strings and political power would have tried
to pull the plug on his funding. Thus, it is reasonable to assume that
when Caesar decided to discuss Gallic or German or British laws and
customs, to a large degree he was probably only relating those that
reflected Roman values and stabilization (or at worst, the curious).
86. Id. § 7.3 at 199.
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B. Justice in the Abstract: Fairness
1. Overview
In addition to his discussions regarding the laws of foreigners, there
are a number of instances where Caesar makes comments, observations,
or assertions which suggest something about his attitudes relating to
justice. Gelzer remarks that "What strikes the modem observer most in
Caesar's conduct-this also appears later in his military commentariesis the masterly way in which he put his opponents morally in the
wrong., 87 Although there may be other principles discernable in his
writing, seven concepts of justice seem especially prominent: 1) it is just
to repay kindness; 2) it is just to punish wrongs simply for the sake of
vengeance and/or teaching the wrongdoer a lesson; 3) it is just to use
punishment as a normative device in order to deter others from
committing wrongs; 4) it is just for the needs of many to supersede those
of the few; 5) it is just that one who occupies property first should have
rights superior to a second-comer; 6) it is just to provide compensation
for victims who have incurred damage; and, 7) it is just to be forgiving.
All of these principles may simply reflect notions of basic fairness which
may be considered part of human nature. Nevertheless, that Caesar
found it desirable to make these assertions seems important.
2. It Is Just to Repay Kindness
Perhaps this is a social tenet that was merely part of the cultural
fabric of the Roman aristocracy. Still, no matter what its source, it is a
principle that Caesar comes back to frequently. For example, near the
beginning of his campaign, as early as 58 B.C. when he asks the Aedui
for help with his supply lines, he reminds them that one of the principal
reasons that he had come was because of their request for help. At the
very least, they owed him assistance in return for his favor of coming
there in the first place: "He pointed out that it was largely in response to
their entreaties that he had undertaken the campaign, and in still stronger
terms than he had yet used accused them of betraying him by this
neglect., 88 Interestingly, six years later he returns to the same theme
when chastising the Aedui and asking for their help. He makes it clear
that they ought to feel obligated to help him because of the way that he
had helped them.
87.
88.
GELZER, supra note 1, at 78.
HANDFORD, supra note 27, § 2.1 at 48.
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[H]e briefly reminded them of his services to the Aedui-in what a
feeble state they were when he received them into alliance, cooped up
in their strongholds, stripped of their lands, deprived of all their allies,
forced to pay tribute and submit to humiliating demands for
89
hostages ....
In some respects, repayment of kindness is a way of showing
loyalty to friends and allies. And, indeed, Suetonius mentions that
loyalty was something that Caesar valued: "Even as a young man Caesar
was known for the loyalty he showed his dependants." 90
But he does not necessarily state that the repayment of kindness is
something that only the Romans consider a form of justice. Caesar puts
words expressing the same notion into the mouth of the Gaul, Ambiorix.
"I admit," he said, "that I am greatly indebted to Caesar for the
services which he has rendered me. It was he who relieved me of the
tribute that I used to pay to my neighbours the Atuatuci, and restored
to me my son and my brother's son, who, when sent to them as
hostages, had been enslaved and kept in chains." 9l
In the same speech, Ambiorix repeats this very theme twice, stating
"I remember what I owe to Caesar for his favours . ,92 and "I am
acting in the interests of my people, who will be relieved from the
burden of the camp in their midst, and at the same time repaying Caesar
for his kindness. 9 3
Nor does Caesar characterize the repayment of kindness as an
obligation owed exclusively to Romans. When the Gallic leader
Vercingetorix is asking for help from his cavalry, he uses the memory of
his prior heroism and bravery as leverage: "He pointed out how much
they owed him and urged them to consider his safety; after all he had
they ought not to abandon him to
done for the cause of national liberty,
94
the cruel vengeance of the enemy.,
89. Id. § 7.4 at 211-12.
90. SUETONIUS, supra note 1, § 71 at 39; see also MEtER, supra note 1, at 181 ("he was
indeed a very reliable friend."); id. at 308 ("Everywhere he had to mediate, conciliate, explain and
give instructions, fostering loyalty by rewarding service with service, and reacting to disloyalty
without necessarily being able to punish it."); id.at 311 ("He tried to be generous whenever he
could. The atrocities he ordered were exceptional and can probably be explained by Roman military
practice.").
91. HANDFORD, supra note 27, § 6.1 at 143.
92. Id.
93. Id.§ 6.1 at 143-44.
94. Id. § 7.5 at 221.
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3. It Is Just to Punish Wrongs Simply for the Sake of Vengeance
and/or Teaching the Wrongdoer a Lesson
Caesar treats punishment for the sake of vengeance as a natural
consequence of wrongdoing. In one regard, this is simply the converse
of the principle that justice requires the repayment of kindness; justice
requires the repayment of injury, as well. According to Suetonius,
however, "Caesar was not naturally vindictive .... "" In fact, on the eve
of his initial departure for Gaul, in discussing the disposition of those
who had brought about the execution of the Catalinarian conspirators
without a trial, although "he had not approved of the consul and the
Senate on that occasion," Gelzer points out that "he did not now
consider it right to pass a law with retrospective effect." 96 Hence,
Caesar's appetite for revenge could be tempered by his understanding
that actions with retroactive effect were, as a rule, unjust.
The return of injury for injury, however, may achieve several goals.
First, it may serve purely a vengeance function. In this regard, the return
of injury for injury responds to a basic human instinct. When one suffers
an unprovoked injury at the hands of another, it is human nature to want
to fight back. Psychologists refer to this as the "fight" component of a
"fight or flight" response. In part we wish to protect ourselves. But in
part we also wish to hurt someone who has hurt us. They have injured
us. That is an abject form of disrespect. We wish to lash out at someone
who has shown us disrespect on that scale-the scale of physical harm.
Revenge seems to fulfill some basic human need. At the same time,
presumably, we hope that "return fire" will teach the aggressor a lesson.
Perhaps it will have a deterrent effect. Perhaps, as psychologists teach
us, once punished for a wrongful act, the wrongdoer's desire to avoid
future punishment will deter him/her from undertaking the same or
similar injurious conduct in the future. These two goals of punishment,
however, are not necessarily easy to distinguish.
For example, early in his campaign, Caesar describes his defeat of
the Helvetii as a kind of punishment that involves revenge both for
Rome and for himself, personally.
Fifty years earlier, the men of this clan had left home independently of
the others, and after the battle in which the consul Cassius was killed
had sent his army under the yoke. Thus, whether by accident or by
divine providence, the section of the Helvetii that had inflicted a signal
95. SUETONIUS, supra note 1, § 74 at 40. Suetonius also gives examples of situations where
Caesar could easily have become vindictive, and yet, chose instead to show clemency. See id.
§§ 74-75 at 40-41.
96. GELZER, supra note 1,at 98.
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defeat upon Rome was the first to suffer for it. In thus punishing the
Tigurini Caesar avenged a private injury as well as that done to his
country; for a general named Lucius Piso, grandfather of the Lucius
Piso who was
Caesar's father-in-law, had been killed in the same battle
97
as Cassius.
And, according to Caesar, one aspect of this type of revenge (or
individual deterrence) is the passage of time. When Caesar explains to
the Helvetian leader, Divicio, why it has taken the Romans so long to
punish them for the injury inflicted over a half century earlier, he says:
"The victory of which you boast so arrogantly," he [Caesar] said, "and
the surprisingly long time during which you have escaped punishment,
are both due to the same cause. When the gods intend to make a man
pay for his crimes, they generally allow him to enjoy moments of
success and a long period of impunity, so that he may feel his reverse
of fortune, when it eventually comes, all the more keenly. 98
Indeed, Caesar later returns to the theme that by crushing the
Helvetii he is exacting revenge. According to him, even the other Gauls
recognized that revenge is what is animating Caesar's hostilities towards
the Helvetii: "They [leading men of many tribes in Gaul] realized, they
said, that ... his motive in fighting the Helvetii was to punish them for
their past injuries to Rome . . .,99
Interestingly, in addition to referring to retribution as the just
response to physical harm, Caesar also explicitly states that retribution is
the just response in cases where the Gauls merely fail to ask Caesar's
permission to take certain actions and the just response for them acting
without his knowledge. For example, he writes:
Dumnorix had secured a passage for the Helvetii through the territory
of the Sequani, and arranged an exchange of hostages between them.
He had done this not merely without the authority of Caesar or the
Aeduan government, but actually without their knowledge; and he was
denounced by the chief magistrate of his tribe. Caesar therefore
decided that he had good grounds for either punishing him himself or
calling on his fellow-tribesmen to do so.'l 0
In this instance, the circumstances imply that Caesar's "good
grounds" for punishment are prompted more by a goal of individual
deterrence than by revenge. Presumably, Caesar's desire to punish
97.
98.
99.
100.
HANDFORD, supra note 27, § 2.1 at 45.
Id. § 2.1 at 46; see also MEIER, supra note 1, at 240.
Id. § 2.2 at 55.
Id. § 2.1 at 49.
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Dumnorix was motivated by his desire to deter Dumnorix from repeating
acts of this nature (i.e., securing passage for the Helvetii and exchanging
hostages without Caesar's authority or knowledge). 1 '
It Is Just to Use Punishment as a Normative Device in Order to
Deter Others From Committing Wrongs
It is not always a simple task to determine the goal of punishment.
As has been explained, punishment may be motivated by an instinct for
revenge and it may be motivated by the desire to teach the wrongdoer a
lesson (individual deterrence). But punishment may also serve the
purpose of setting an example for others. Suetonius notes, for example,
that Caesar severely punished deserters. Punishing deserters is precisely
the type of punishment which is likely to discourage others from
deserting. According to Suetonius, "Though turning a blind eye to much
of their misbehavior, and never laying down any fixed scale of penalties,
he allowed no deserter or mutineer to escape severe punishment."' 1 2 In
one passage in particular, Caesar specifically notes that in 56 B.C. he set
out to attack the Veneti and several other Gallic tribes, in part, hoping to
set an example to deter others from following their lead.
4.
In spite of the difficulties, Caesar had several strong reasons for
undertaking this campaign: the unlawful detention of Roman Knights,
the revolt and renewal of hostilities by enemies who had submitted and
given hostages, the large number of tribes leagued against him, and
above all the danger that if these were left unpunished
others might
10 3
think themselves entitled to follow their example.
Meier explains that Caesar "was motivated by a serious
consideration: if he yielded to the Veneti, others might follow their
example. All the Gauls were fickle, always inclined to rebellion, and
101. On a number of occasions, Caesar observes that the Gauls expect punishment as a natural
consequence of their actions. In most of these circumstances, punishment appears expected as a
kind of individual deterrence. See, e.g., HANDFORD, supra note 27, § 2.2 at 56 ("They [Gallic
chieftains] explained that they were very anxious to prevent what they said from being disclosed;
this was just as important to them as obtaining the request that they had come to make, because its
disclosure would bring the most cruel punishment upon them."); see also id § 2.2 at 58 ("[The
Aeduan, Diviciacus, said:] "If my words come to the ears of Ariovistus," he concluded, "I do not
doubt that he will inflict the most inhuman punishment on all the hostages he has in his power."); id.
§ 7.3 at 205 ("Fascinated by the profits of the plunder, yet at the same time dreading retribution for
their crimes, they [Aeduan tribal leaders] began to make secret preparations for war and sent envoys
to obtain the support of other tribes.).
102. SUETONIUS, supra note 1, § 67 at 37; see also MEIER, supra note 1, at 307 ("He was both
strict and indulgent. In dealing with mutinies and desertions he was merciless.").
103. HANDFORD, supra note 27, § 3.1 at 97.
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imbued with a great love of liberty."'10 4 Meier states, in addition, "the
Gauls were to be taught a lesson. The revolts that repeatedly flared up
among the restless tribes seem to have led Caesar to conclude that they
could not be bound by treaties."' 0 5 Of course, the first two reasons for
punishment mentioned ("the unlawful detention of Roman knights" and
"the revolt and renewal of hostilities by enemies who had submitted and
given hostages") if considered in isolation may appear to be merely
motivated by a desire for individual, deterrence. But the fact that Caesar
expressly says "and above all" suggests that the general deterrence -is
foremost in his mind. In discussing Caesar's actions after the siege of
Avaricum, where he massacred nearly all of the population, Meier
suggests, "The violence was probably also meant to have a deterrent
effect." 10 6 Jurisprudentially speaking, individual deterrence ordinarily
has a very small impact on society as a whole, whereas general
deterrence may have exceptional impact if indeed by punishing one
wrongdoer many others decide not to commit similar misdeeds out of
fear of receiving the same or similar punishment. General deterrence is,
some would argue, more efficient than individual deterrence. Caesar
understood the concept well.
5. It Is Just for the Needs of Many to Supersede Those of the Few
In 52 B.C., while preparing to besiege Avaricum, Caesar evaluated
his plan of attack, and determined that losses were likely to be heavy.
Knowing this, he summoned and addressed his men, telling them that he
was uncertain whether he should risk a great number of men for the sake
of his own well being.
But Caesar pointed out how costly a victory would be in these
conditions, how many brave men's lives must be sacrificed; when they
showed such steadfast loyalty and were willing to face any danger for
his honour, he would be guilty of the grossest
injustice if he did not
17
consider their lives before his own interests. 0
104. MEIER, supra note 1, at 274. For more on the Gauls' love of liberty, see MEIER, supra
note l, at 258, 304.
105. Id. at 275.
106. Id. at 320. (This may be merely Meier's conjecture. There is not really much in Caesar's
text to support this assertion.).
107. HANDFORD, supra note 27, § 7.2 at 190.
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Indeed, Caesar refers to this as summae iniquitatis ("grossest
injustice") if he failed to consider their lives as more important than his
own self-interest (nisi eorum vitam sua salute habeat cariorem).108
It Is Just That One Who Occupies Property First Should Have
Rights Superior to a Second-Comer
As Caesar was first advancing through Gaul in 58 B.C., the Gallic
leader, Ariovistus, opposed him. Caesar puts into Ariovistus' mouth a
statement about legal rights that strikes modem ears as logical and,
actually, rather appealing. According to Ariovistus, he had taken control
of that particular region of Gaul first. Thus, he felt that he had a better
legal claim to it than Caesar, and that Caesar was actually infringing his
rightful claim.
6.
However, he [Ariovistus] had come there before the Romans, whose
armies had never before marched beyond the frontier of the Province.
What did Caesar mean by invading his dominions? "This part of the
country," he said, "is my province, just as the other part is yours. I
could not expect you to let me make raids into your territory with
for you to interfere with me in the
impunity, and it is a gross injustice
09
exercise of my lawful rights."'
Interestingly, Caesar does not argue the principle. Rather, he
disputes the facts. According to him, the Roman, Quintus Fabius
Maximus had taken control of that section of Gaul as early as 121 B.C.
Thus, he takes up Ariovistus' argument, saying that if priority of time is
the legal principle to be applied, then it is the Romans who were actually
there before Ariovistus: Quod si antiquissimum tempus spectari oportet,
populi Romani iustissimum esse in Gallia imperium .... "0 ("But if the
108: GALLIC WAR, supra note 50, § 7.19 at 406. It is interesting to note that this same principle
was at work in the suggestion of the Gaul, Critognatus, "an Avernian noble," when he suggested
that they kill the citizens who were too young or too old in order to sustain themselves. See MIEIER,
supra note 1, at 324 (Ultimately, they sent the young and the old out of town instead of killing
them.).
109. HANDFORD, supranote 27, § 2.2 at 67; see also GALLIC WAR, supra note 50, § 1.44 at 7273. TheLatin text reads: Se prius in Galliam venisse quam populum Romanum. Numquam ante hoc
tempus exercitum populi Romani Galliaeprovinciaefinibus egressum. Quid sibi vellet, cur in suas
possessiones veniret? Provinciamsuam hanc esse Galliam, sicut illam nostram. Ut ipsi concedi non
oportet, si in nostros fines impetum faceret, sic item nos esse iniquos, quod in suo iure se
interpellaremus.Id. § 1.44 at 72.
110. Id. § 1.44 at 74. For more on the dialogue between Ariovistus and Caesar, see GELZER,
supra note 1, at 111-12; id. at 112 ("In his detailed account of these negotiations Caesar reveals the
real point of his Gallic campaigns: Ariovistus was trespassing on Rome's sphere of influence, and,
as her representative, he would have been guilty of criminal dereliction of duty if he had submitted
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oldest time ought to be looked to/observed, then in Gaul the most just
control is of the Roman people.") This basic principle of ownership is
also found in classical Roman property law.il
7.
It Is Just to Provide Compensation for Victims Who Have
Incurred Damage
In 58 B.C., Caesar, while protecting his allies the Aedui and
Allobroges, confronted the Helvetian, Divico. The Helvetii had
rampaged through land occupied by these allies and had caused a great
deal of property damage. Caesar demanded that they pay for the damage
that they had caused: "However, if you will give hostages as a guarantee
that you mean to carry out your undertakings, and will recompense the
Aedui and the Allobrogesfor the injury you have done to them and their
allies, I am willing to make peace with you." 112 Similarly, in 54 B.C., he
ordered the Pirustae to pay for damage that they had caused in various
raids. "When they heard this news the Pirustae sent representatives to
say that their government was not responsible for what had happened,
and that they were ready to make full reparation for the damage." 113 He
mentions this act in a rather matter-of-fact fashion: "[H]e [Caesar] then
appointed arbitrators to assess the damage sustained by the various
communities and fix the reparation." ' 1 4 The notion that those who cause
property damage ought to pay for it had been a bedrock principle of
Roman law, dating back at least to the lex Aquilia (287 B.C.)." 15
8. It Is Just to Be Forgiving
Meier notes that Caesar "was famed for his clemency and
compassion" and that "Caesar won fame through giving, helping, and
forgiving."' " 6 Thus, it is not surprising that we should find Caesar
suggesting that one aspect of justice is to be forgiving. In 54 B.C., the
Nervii attacked Cicero's winter camp. When several Nervian leaders
passively to such provocation."); see also MEIER, supra note 1, at 243-46 (discussing the same
issue).
111. See J.A.C. THOMAS, TEXTBOOK OF ROMAN LAW 166-68 (1976) (discussing the legal
concept occupatio, ownership based on rights which accrue from initial possession).
112. HANDFORD, supra note 27, § 2.1 at 46 (emphasis added).
113. Id. § 5.2 at 129; see also GELZER, supra note 1, at 141 ("[T]hey supplied hostages and
recognized an arbitrator appointed by Caesar who was to assess the damage caused by them and the
reparations to be paid.").
114. HANDFORD, supra note 27, § 5.2 at 129; see also GALLIC WAR, supra note 50, § 5.1 at
234 (arbitrosinter civitates dat qui litem aestiment poenamque constituant.).
115. See ALAN WATSON, ROMAN LAW AND COMPARATIVE LAW 71-72 (1991); THOMAS,
supra note 111, at 363-68 (1976); VERSTEEG, supra note 64, at 346-47 (2002).
116. MEIER, supra note 1, at 175.
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approached him to discuss the situation, one of the things that Cicero
said (of course these are words that Caesar puts into Cicero's mouth)7
was that perhaps Caesar would forgive them: sperarepro eius iustitia."
By way of reply [to the Nervii], Cicero contented himself with saying
that it was not the habit of the Roman people to accept any terms from
an armed enemy. If they would lay down their arms, and send an
embassy to Caesar to ask for terms, he would support their request, and
hoped that Caesar in his justice would grant it. 8
CONCLUSION
Caesar's sense of justice contributed to his military successes, both
in making him a more effective leader of his own men and in subduing
the Gallic tribes, but at the same time led to his political downfall. With
respect to the Gallic tribes, his ability to adapt and to relate concepts of
justice seem to have helped him gain the respect of those tribes and ally
them with the Roman cause. With respect to Roman affairs, his
manipulation of the law, as well as his sometime disrespect for it, along
with his appeals to justice, seem to have made him popular with the
people, while at the same time infuriating his political enemies and
forcing them ultimately to assassinate him. Indeed, Caesar's personal
view of law and justice was integral both to his rise and his fall.
He rose as a military and political leader in large part because of his
sense of justice and his ability to manipulate law. But his disregard for
the law in the end caused his downfall. Perhaps he was simply too good
at using the law for his own purposes. Caesar's legal manipulation and
lawlessness forced others first to attempt to manipulate the law against
him and then, when that failed, to take (at least arguably) lawless
measures (assassination being the most dramatic example).
Few individuals have had as great an impact upon world events as
Julius Caesar. Caesar shaped the last quarter century of the Roman
Republic, and in so doing, profoundly influenced the creation of the
Roman Empire and Western Civilization. This Article has trained our
attention on one significant thread of his complex life and legacy: law.
Because of his legal education, training, and practical experience, it is
117. GALLIC WAR, supra note 50, § 5.41 at 288. This, of course, was not Marcus Tullius
Cicero, the orator and consul of 63 B.C., but rather his brother.
118. HANDFORD, supra note 27, § 6.2 at 151; see also MEIER, supra note 1, at 300 (Describing
circumstances during the Civil War, Meier notes: "Time and again he was obliged to show
clemency to rebels who surrendered to him, though it was often quite patent that this amounted to
no more than a pause in the fighting.").
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certain that he was intimately familiar with the substantive, procedural,
and jurisprudential aspects of Roman law. Because of his political life,
legal issues and legal questions affected the course of his life and many
of his most important decisions. Hence, it comes as no surprise that his
own writing reveals a rich and broad understanding of law and legal
principles. His commentaries on the Gallic War, De Bello Gallico,
contain hundreds of direct and indirect references to law and legal
institutions. 1 9 This Article has confined its focus to only two types of
those references: 1) remarks concerning foreign laws; and, 2) remarks
that reflect Caesar's viewpoint of justice as an abstract principle.
In discussing and describing the laws and legal institutions of
foreigners such as the Gauls and Germans, Caesar indirectly reveals
something about his own thinking about law. Arguably, he only chose to
discuss those aspects of foreign laws that he considered interesting or
significant. Thus, he noted the following: 1) it is important for a legal
system to have judges and legal procedure; 2) it is important for a legal
system to have an organized process for selecting judges and lehders;
3) it is important for a legal system to establish mechanisms for
governing marital property and marital relations; and, 4) it is important
for a legal system to provide safety and security for the community.
His isolated discussions of justice in the abstract show an
appreciation of at least seven distinct tenets: 1) it is just to repay
kindness; 2) it is just to punish wrongs simply for the sake of vengeance
and/or teaching the wrongdoer a lesson; 3) it is just to use punishment as
a normative device in order to deter others from committing wrongs;
4) it is just for the needs of many to supersede those of the few; 5) it is
just that one who occupies property first should have rights superior to a
second-comer; 6) it is just to provide compensation for victims who have
incurred damage; and, 7) it is just to be forgiving.
By gaining a better understanding of the role that law played in
Caesar's life and his perceptions of law, perhaps we can better
119. In researching this Article, I identified hundreds of legal references in De Bello Gallico.
After creating a database of those references, I then tried to categorize them. In so doing, I arrived at
the following legal and quasi-legal categories: Gallic Laws; German Laws; Religious Law;
War/Alliance; War-Property; Rules of War; Hostages; Liberty/Individual Freedom; Contract,
Combination, Conspiracy; Governance; Property; Tort; Contract, Promise; Oath; Precedent; Justice;
Tax/Tolls; Crime; Marriage; Procedure/Due Process; Wills/Succession; Hospitality; Security;
Senatorial Decree. In order to limit the scope of the present work to an article rather than something
approaching a book, I decided to narrow the focus of my writing by focusing only on Caesar's
discussion of foreign laws and his references to justice in the abstract. Clearly, there is ample
material for more articles on other aspects of law in Caesar's De Bello Gallico. In addition, my
preliminary research of his Bellum Civile suggests that it too could easily serve as the basis for
further projects.
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601
understand who he was, why he did the things that he did, and how those
things, in turn, combined to affect the world that evolved after his death.
To some degree, because Caesar's actions affected the shape of Rome's
Empire and the whole of the Western World, those actions also affected
the shape of the world in which we live today. The role that law and
legal issues played in his life, then, continues to influence our modem
world.
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