Search and seizure in Rome

[Lothia]

Ave Civitas,

I was wondering how protected the Roman home was from lawful search and seizure?

Could someone (sent by a governor, a senator, by the Duoviri) enter a Roman home and search for contraband, fugitives of the law, enemies of the state?

Thank you in advance.

Me

[M. Demetrius]

That's an interesting question. One would suppose that a local official abusing his power to seize goods from a citizen would have to answer to higher-ups, but then, on many occasions, the people at the top simply declared a family "enemies of the state" and confiscated all their property. I suppose the latter case would be "legal", though, wouldn't it?

[Lothia]

Ave M. Demetrius,

Thanks. That seems logical. I have the digest of Roman Law, but couldn't find anything in there (I don't have an online copy so can't do a word search) that told me.

Thank you very much.

You guys are great.

Me.

[Epictetus]

There seems to be some circumstantial evidence that lends credence to the idea that private property rights were protected, at least to some extent, in the home. For instance, in the Twelve Tables there is this provision:

[If he find that another has used his timber (_tignum_) in building a house or in supporting vines,] a person shall not dislodge from the framework the timber fixed in buildings in vineyard; [but he shall have the right of action] for double [damages] against him who has been convicted of fixing [such timber].

So if your neighbour cuts down your trees and uses them to build a house or framework for a vineyard, you can't just go over to his property and take it back. You have to sue him and you are entitled to double damages.

In official contexts, we have Cicero's speeches against Verres. This one is really good about abuse of trust, both with public and private property. There a dozens of instances where searches and seizures were made in private houses.

When it comes to persons, the Twelve Tables has these provisions:

If he (the plaintiff) summon [the defendant] to court (_in ius_), he (the defendant) shall go. If he (the defendant) go not, he (the plaintiff) shall call a witness thereto. Then only he (the plaintiff) shall take [the defendant] by force.

If he (the defendant) attempt evasion or take to flight, he (the plaintiff) shall lay hand [on the defendant].

If a person accused of a crime refuses to go to court, the plaintiff has to get a witness to attest to the crime. Then he can use force to get the suspect, presumably even entering into his house.

Then there is this:

Whoever shall have need of evidence, he shall go on every third day to cry before the doorway [of the witness's house].

This is a bit confusing (T.J. Cornell calls it "obscure"), but evidently the house of the witness couldn't be entered. Instead some sort of public shaming was used to get him to testify.

[Lothia]

Ave Epictetus,

Thank you. I remember reading the twelve tablets (on line) but completely forgot about the passage you sent. Doing searches by key-words is not always effective.

Thanks again for your reply.

Me.

[john m roberts]

In Republican Rome search and seizure would be difficult because Rome had no police force so who would do the searching and seizing? A praetor could appoint an investigator (iudex) but apparently he was only empowered to ask questions. Lictors accompanying magistrates could make arrests, but that was only to haul men off to court and searching premises doesn't seem to have been within their authority. A right to privacy and security seems to have been recognized because sometimes it was forbidden. For instance, a serving Tribune of the Plebs not only could not lock the doors of his house, he was forbidden even to close them during his term of office. So, a right to close and lock your house must have been recognized.

[Lothia]

Hello Mr. Roberts,

Thanks for the reply. I did not know that about the tribune. I wonder if in the provinces and not in the city itself, if a magistrate could call on the local militia to accompany him on a search.

The story I am working on is set AD 411 in northern Gaul and although it is a story, I don't want to bend history.

Perhaps I should look for some other way to violate this character's sense of security beside a search of his premises. Maybe change the circumstances and have him arrested while off his villa grounds.

Thanks again. As always, you guys are great.

Me.

[Sean Manning]

I definitely think it would be plausible for a magistrate to do this, though it might or might not be legal. Even during the republic, there are accounts of citizens being beaten or killed by powerful individuals (eg. Aulius Gellius, Attic Nights 10.3). The Romans tried to limit the powers of their officials, but Roman men were a rough bunch.

[Quintius Clavus]

AD 411 is a very different time than, say, 70 BC or even AD 70. Would any of the compilations/commentaries of/on Roman law from the Late Roman period or even the Emperor Justinian's time be of use?

[Nathan Ross]

On possible source of evidence on this would be the more reputable records of the Christian persecutions under Decius and Diocletian, during which a number of 'house churches' and private residences appear to have been searched and books and religious items seized. The trial ('Proceedings before Zenophilius') recorded by Optatus of Milevis in his 'Against the Donatists' provides a detailed but frustratingly opaque account. Munatius Felix, Curator (city governor) and Perpetual Flamen of the city of Cirta in North Africa (under Diocletian in 303AD) visits various Christian houses, apparently with his entourage. Interestingly, in each case rather than entering the property immediately he instead calls for various banned items to be produced by the occupants -

'When they came to the house in which the Christians were accustomed to assemble, Felix the flamen and guardian of the state said to Paul the Bishop:

"Bring out the Scriptures of the Law, and anything else that you may have here, as has been commanded, that you may obey the order."

'Paul the Bishop said:

"The lectors have the Scriptures. But we surrender what we have here."

'Felix the perpetual flamen and guardian of the state said to Paul the Bishop:

"Show us the lectors or send to them."

'Paul the Bishop said:

"You all know them."

'Felix the perpetual flamen and guardian of the state said:

"We do not know them."

'Paul the Bishop said:

"The public officers know them----that is Edusius and Junius, the notaries."

'Felix the perpetual flamen and guardian of the state said:

"Let the matter of the lectors stand over. They will be pointed out by the public officers. Do you surrender what you have."

These 'public officers' (servo publico) seem to be the only servants available to the Curator - quite what their exact rank or function might be is unclear. But it does seem that Felix is unwilling or unable to send his men in to search the houses until after the occupants have voluntarily surrendered items - in the case of those who claim to possess no contraband, no search is made. In one case, there is direct mention of a 'public official' being sent into a house:

'And when they came to the house of Coddeo, his wife brought forth six codices.

'Felix the perpetual flamen and guardian of the state then said:

"Look and see whether you have not got more. Bring them forth."

'The woman said: "I have no more."

'Felix the perpetual flamen and guardian of the state said to Bos the public official:

"Go in and search whether she has not any more."

'The public official said:

"I have searched and have not found anything else."

'Felix the perpetual flamen and guardian of the state said to Victorinus, Silvanus and Carosus:

"If anything has been kept back, the danger is yours."

The last quote implies that Bos' search was not very thorough - certainly not a turning-things-inside-out affair, more of a glance around by the official eye. In all these cases, the onus is on the accused to produce the wanted items, not the state officials to find them. Presumably, if it later transpired that things had been hidden from official search, or not produced when requested, penalties could be severe.

The whole 'Proceedings before Zenophilius' is here

I think in general, however, the powers of the state in the later empire were considerably greater with regard to private property. Consider the ability of the frumentarii under the principiate to open people's mail, for example: the powers of the later agens in rebus would be similar if not greater. Whether the 'notaries' mentioned in the trial above were actually members of the imperial notarii seems unlikely for a provincial city, but these latter would possibly also be available at more exalted levels for investigations of this sort.

- Nathan