Introduction

1The writings of classical Roman jurists (from the late 1^st century BCE to the 3^rd century CE) mention images or other works of art more frequently than a comparable cross-section of contemporary legal literature would do.1 However, legal problems that nowadays constitute the diverse field of “art law” – e.g., restitution of looted art, monument protection,2 intellectual property,3 art forgery, etc. – were completely alien to the Romans. Juristic attention to images and artefacts was seldom stirred by “image-specific” legal problems, because this quality was only exceptionally the focus of juristic discourse: artistic merit provided an argument at some stages of the centuries-long meandering discussions about the so-called tabula picta.4 Images (statues or other portraits) gained a special legal status when they had to represent the emperor throughout the empire. Their use to “generate asylum” was inextricably linked to their political and propagandistic importance as symbols of imperial might. Most references to images and the like, however, appear in everyday contexts and concern legal problems for which such associations were not relevant. Why should this have any bearing on ownership disputes involving statues or paintings, trials for the killing of slave painters or damages caused by falling paintings? The texts mentioning artworks (in a wider sense), albeit only in passing, are numerous and diverse, as are the legal problems they concern. No text, however, provides detailed information on the images5 or distinguishes between types of artefacts. The minimal information retained in a single text excludes a complete description of the material, because this would hardly be worthwhile.6 Therefore, after canvassing a particular jurist’s ideas about the function of images, the status of imperial statues and the case of tabula picta, this paper explores problems covered by more than just one text in order to put at least certain aspects of the juristic treatment of images and a few art-related questions into perspective.

Powers of images

2The jurist Julius Paulus (2^nd/3^rd centuries CE) made some noteworthy reflections about the function of portraits (imagines) while considering the strange case of a person buried in two places:

D. 11,7,44 (Paul. 3 quaest.) Cum in diversis locis sepultum est, uterque quidem locus religiosus non fit, quia una sepultura plura sepulchra efficere non potest: mihi autem videtur illum religiosum esse, ubi quod est principale conditum est, id est caput, cuius imago fit, inde cognoscimur. […]7

3The extant texts on burials in Paulus’s quaestiones do not reveal whether this had been a “real” or a hypothetical case (which would correspond to the generally didactical character of the work).8 Reasons for laying a person to rest in different places are indeed hard to fathom.9 The German Digest translation, in this context, draws attention to the fate of P. Quinctilius Varus, of whom only the head reached Rome and was buried in the family tomb.10 In that situation, it might be questioned whether there was a burial or a grave at all; Paulus’s ruling would answer in the affirmative. But the Severan lawyer’s case was about two (potential) graves on Roman soil,11 both containing body parts ritually interred by persons lawfully entitled to do so.12 Only then could the question arise as to which was the legal grave (sepulchrum) and belonged to the gods of the nether world (Manes).13 Such a so-called locus religiosus could neither be owned nor sold, and the owner of surrounding property had to allow access to it (iter ad sepulchrum).14 These inconveniences of having a locus religiosus on one’s estate probably led to the consultation.15 Paulus ruled that a person could have one burial (una sepultura) and one grave only,16 irrespective of how often burial rites had been performed and in how many places remains of the deceased had been laid to rest. Decisive was the head: its resting place was the locus religiosus.

4This solution – even if the question discussed were merely hypothetical – was impeccable from a practical standpoint: it was easy to apply, the criterion was scarcely disputable, because virtually self-evident, and it worked irrespectively of the number of potential graves17 and without necessitating investigations, e.g., into where more of the corpse rested.18

5The final part of D. 11,7,44 derives an argument for the head as the essential body part (quod est principale)19 from its aptitude to be reproduced by an imago that allowed for the identification of the deceased.20 An imago served, as did the burial, to preserve “the memory of a person’s existence” (memoria humanae condicionis21); more specifically, it provided for his recognition after death through the same cognitive processes as during his lifetime.22 By the final switch into the first-person plural – cognoscimur – Paulus further emphasized and generalized his reasoning.

6Given the context, imago23 seems to refer more specifically to the imagines maiorum,24 the wax masks of one’s ancestors rather, than to other types of portraits. To see a person duplicated by an image was not far-fetched, especially in burial contexts: in a pompa funebris, imagines/funeral masks, sometimes even worn by actors or family members, served as proxies for the ancestors and escorted dead upper-class Romans to the netherworld.25

7The notion of an image as a person’s double, or counterpart, was also the basis of a decision by Antistius Labeo (early 1^st century CE), cited by the same Paulus: Labeo qualified an attack on a statue as a post mortem insult (iniuria) against the deceased and granted the actio iniuriarum (action for insult against the deceased),26 rather than the actio sepulchri violati (for the violation of a grave), which responded to primarily physical damage.27

Images of power: imperial statues etc.

8On account of these very properties of portraits, Roman emperors deployed their images, in the form of statues or busts, or on coins, gems, and paintings, all over the empire.28 Viewers recognized the emperor in his images and, sometimes, this went as far as identifying the emperor with his image.29 Consequently, intentional attacks against such images were understood as targeting the emperor and fell within the ambit of the crimen laesae maiestatis.30 When Tiberius authorized a strict application of the law, he also created the basis for prosecuting disrespectful acts directed at imperial images or committed in their vicinity.31 As a side-effect, the belief emerged that statues provided asylum for refugees seeking the emperor’s protection and that portable images (coins etc.) were apt to keep off persecutors.32 This became effective, because, in public, such widely noticeable and “quasi-personal” appeals to the emperor could not be disregarded without risking prosecutions for lèse-majesté, especially by members of the upper orders. This kind of asylum therefore favoured primarily persons of low rank, and particularly slaves, who otherwise lacked legal protection against their masters.33 In such instances, a public official inquired into the reasons for seeking asylum34 and, in the case of slaves, decided on potential further protection.35

“Law for art’s sake”: the tabula picta

9The only instance of jurists invoking artistic value as an explicit ratio decidendi was the so-called tabula picta,36 the question of who should own a painting drawn on another’s panel without that other’s consent. This was an instance of acquisition of ownership by accessio. Under the rule accessio cedit principali (the accessory thing becomes part of the principal)37 the painting should have become the property of the panel-owner, just like golden letters belonged to the owner of the papyrus or parchment on which they were written; 38 the relative value of the parts played no role whatsoever.39 For the tabula picta, however, the 2^nd century CE jurist Gaius disapprovingly40 noted an exception – to him, an unfounded exception – to the rule: Sed si in tabula mea aliquis pinxerit veluti imaginem, contra probatur : magis enim dicitur tabulam picturae cedere. cuius diversitatis vix idonea ratio redditur. […]41

10One generation later, Paulus – also a (late) adherent of the Sabinian school – applied the guiding principle (accessio cedit principali)42 on writing and painting alike but he recalled that, in the past, some had decided otherwise, motivated by the superior value of painting: Sed et id, quod in charta mea scribitur aut in tabula pingitur, statim meum fit: licet de pictura quidam contra senserint propter pretium picturae: sed necesse est ei rei cedi, quod sine illa esse non potest.43 His view then prevailed for three hundred years44 until Justinian revived the solution, unsuccessfully rejected by Gaius, in recognition of the superior value of art:

Si quis in aliena tabula pinxerit, quidam putant tabulam picturae cedere aliis videtur picturam, qualiscumque sit, tabulae cedere. Sed nobis videtur melius esse tabulam picturae cedere: ridiculum est enim picturam Apellis vel Parrhasii in accessionem vilissimae tabulae cedere. […]45

11The emperor would not allow the art of revered painters to be degraded to a mere accessory of some “vile tablet”. In the case of tabula picta, Justinian’s legislation left a contradictory regime: while the Institutes decided for the painter, they likewise retained the actio utilis which had served Gaius to undercut the painter’s ownership in favour of the panel owner. The final redactors of the Digest failed to notice that, while book 41 contained a Gaius text46 parallel to that of the Institutes, from the so-called Sabinus mass, the committee excerpting from the edictal mass had decided to stick to Paulus’s contrary opinion in book six.47

The jurists confronting the value and uses of art

12Paulus’s rejection of the pretium picturae in D. 6,1,23,3 did not, either for him or for other late classical jurists, altogether exclude reference to the economic and/or artistic value of images as a decisive criterion for decisions in other contexts.

13Arguing closely in style to Justinian’s reasoning on the tabula picta, Labeo, Sabinus, and Paulus denied that an erased panel was a sufficient substitute for a complete painting, because the value was in the art: Labeo et Sabinus existimant, si […] res corrupta reddita sit, veluti […] tabula rasa pictura, videri rem “abesse”, quoniam earum rerum pretium non in substantia, sed in arte sit positum. […].48 Consequently, compensation was payable for erasing a portrait. Its owner could claim damages under the lex Aquilia because the loss of the painting alone was tantamount to the physical destruction of the whole: Sed et si imaginem […] deleverit, et hic tenetur damno iniuriae, quasi corruperit.49 Likewise, an actio ex testamento for damages lay against an heir who had erased the image and only delivered the panel to the legatee: Si imaginem legatam heres derasit et tabulam solvit, potest dici actionem ex testamento durare, quia legatum imaginis, non tabulae fuit.50

14In discussions about the destruction of frescos, no compensation for "extremely precious" murals (pretiosissimas picturas) was granted if a co-owner destroyed the common wall, rather, compensation was owed for ordinary plaster (vulgaria tectoria) only.51 Great expenditure (magna erogatio) for frescos was equally not fully recoverable if lost in the collapse of a neighbouring building.52 However, this was not a juristic distinction according to the type of painting: it resulted from the accidental circumstances of the individual cases. Unlike destruction of the paintings on wood, the destroyed frescos were collateral damage, caused by a wrongdoer who had not targeted them as such. This, and the Roman bias against ostentation and fruitless luxury (immoderata luxuria),53 were reasons for not holding the defendant responsible for such unforeseeably high losses. Celsus accordingly decided against a bona fide buyer (of land not belonging to the seller) who had constructed a villa: he was not entitled to compensation for luxury frescos if the owner was a “poor man”, but became liable for damages if he instead erased them with malice.54

15The purpose of an objet d’art could influence its legal treatment as well: in the bequest of a fully equipped estate (fundus instructus) only decorative images (quae in aliquo ornatu villae fuerunt) were included: others, such as imagines of ancestors etc., were not ;55 the legatum of a house with its necessary inventory did not extend to good-for-nothing luxury artworks (non quod voluptatis gratia).56

16But the uselessness of artworks as such never became a dogma. The jurist Aelius Marcianus (3^rd century CE) explicitly upheld a usufruct (the right in rem to use a thing and enjoy its fruits) with images as its objects, because in the right places, they could become “useful” (quia […] habent aliquam utilitatem, si quo loco oportuno ponantur).57 By this reasoning, he rebuffed an heir who had challenged the usufruct, obviously claiming that statues or images could not be used, let alone produce fruits and that, as a consequence, a ususfructus was impossible and the bequest void. Although the text does not give specifics, the reasoning with utilitas and locus oportunus makes one think of images which the legatee might set up for honorific purposes58 in public places59 and, e.g., “use” for celebrations to commemorate60 the honorand. Such “use” enhanced the usufructuary’s social standing and perhaps let him share in the honours bestowed on the honorand by the public. This may not have matched the legal definition of fruits but it was arguably a kind of return connected to the “use” of the statues.

Art production and consumption

17Roman jurists dealt with all conceivable kinds of everyday problems, even mundane ones. But a picture drawn of Roman daily life using their writings alone would turn out a caricature. They had to deal with extraordinary or even bizarre situations more often than daily routines. The references to production and consumption of art illustrate this perfectly.

18A rather odd problem caused by making and dealing in art occupied the late Republican jurist Servius Sulpicius Rufus: a painting, either a round clipeus (tondo) or a rectangular tablet, was displayed in a pergula, an artist’s studio or a gallery, from where it fell and damaged chattels or caused injuries to a slave.61 The text is more often quoted to locate the position of the pergula62 (on the ground or on an upper floor?) than for its legal problem: in the anecdote about the painter Apelles (which is the origin of the proverb "let the cobbler stick to his last"), the elder Pliny employed pergula for a street-side studio (where comments of passersby could be overheard by the artist).63 Servius modelled the claim on the action for objects dangerously placed or suspended from a building64 but this does not necessitate a studio on a higher floor (for better light); the pergula could have been at street level but the painting placed overhead (otherwise damage or injury is scarcely conceivable), because it was designed to hang on chains between columns, or the like.65

19Here and there, jurists also report practices of the Roman art market.66 In order to distinguish between sale and a contract for work to be done (locatio conductio operis), paintings or statues served as stock examples for objects made to order;67 however, this need not necessarily indicate that commissioning a sculpture was really as frequent as ordering clothes. On the other hand, Paulus surely described an actual practice, when he pointed to the habit of buying houses for their fixtures of “marbles, statues and paintings”,68 e.g., where statues formed a well-chosen ensemble, as in the Villa dei papyri.69 In such instances, the contract had to specify the artefacts. Otherwise (again under the rules of accessio), the seller only owed wooden tabulae pictae inserted into walls – but not those hanging on chains or just loosely attached to walls.70

20The only art-producers explicitly mentioned by law texts are slaves and freedmen, slaves because of their extraordinary value: Ulpian illustrated the benefits of the particular assessment of damages under the first chapter of the lex Aquilia71 with the example of a slave painter72 who had lost “his art together with his thumb” during the year preceding his death.73 Highly expensive though the training of such painters was, a possessor in good faith sued for recovery of the slave could not ask an indigent owner for compensation (again, following principles developed for accessio).74 Costly training and high earnings aside, such slaves were considered artisans, not artists:75 services (operae) owed by freedmen painters were ranked, like the work of builders etc., as operae fabriles.76 A slave artist might receive his freedom by testament under the condition of executing one final work (for the heir or a third party).77 In case of a manumissio testamento, thoughtful masters supported the future freedman’s independent career by a bequest of his tools of trade (instrumentum)78 (so jurists discussed painting utensils and provide insights into an area otherwise sparsely documented).

21Legal problems caused by “art consumption” are comparably rare, but the few examples again show the omnipresence of images. According to Proculus (early 1^st century) the co-owner of a party wall could have frescos on his side; similarly, Nerva filius and Ulpian allowed a usufructuary to furnish the house, although he only had the right to use it, but no ownership, with frescos. Obviously, even without (exclusively) owning a building or a wall, one should not be forced to forgo frescos according to one’s taste.79 A case of Venuleius Saturninus (2^nd century CE) shows how slaves, too, could be “addicted” to art : if the owner felt that too much time was wasted80 on studying paintings, this harmless vice did not constitute a defect and did not give rise to the actions for rescission or price reduction against the seller under the edict of the aediles curules.81

Epilogue

22This survey of the legal sources confirms the strong presence of artworks in Roman life that archaeologists and (art) historians regularly emphasize.82 As a consequence, disputes in which they played a role were brought to the jurists’ attention. Specific problems were created by the Roman concept of portraits as a person’s extensions, because they could become more than just objects of aesthetic contemplation: depending on how the represented was thought of, an image might be respected or even venerated but sometimes likewise abused and attacked. Unfortunately, the Roman jurists’ curt summaries of facts seldom satisfy curious legal historians in this regard. The erasure of portraits was discussed83 with a focus on economic loss and remedies but not on motives: therefore, it was of no concern whether an envious heir had just been unwilling to give up a precious piece of art or performed a sort of “private” damnatio memoriae.84 The omnipresence of art made a certain degree of “art loving” acceptable in urban slaves but also confronted jurists with the dangers caused by exhibitions of paintings.85

23The jurists’ works contribute little, however, to an explanation of the high esteem in which art was held and the enormous prices it sometimes commanded.86 Discussing the tabula picta, jurists who granted ownership to the painter argued by reference to the panel’s increased value propter pretium picturae. Nonetheless, the rhetorical pathos and enthusiastic praise for famous artists in these contexts came only later, when Justinian joined the discussion.87 Nor did the denial of compensation for costly frescos prove a general disregard for art.88 Such claims were rejected when the pretium picturae became so exorbitant as to trigger the Roman aversion against luxury and extravagance. In more ordinary cases, given that wall paintings were fairly common and low-cost alternatives were available,89 the damages granted in such circumstances, although speaking of ordinary plaster (vulgaria tectoria) only, may have covered the application of non-pretentious picturae as well.

24In the Digest, there is only one image that is still recognizable and it is, unsurprisingly, the statue of an eminent jurist, namely the late Republican Servius Sulpicius Rufus. He had died at the beginning of the year 43 BCE from exertion and ill health on an embassy to meet with Antony at Mutina. On 9 February 43 BCE, Cicero had implored the senate to grant a statue to immortalise his late friend as a politician. The leitmotif of Cicero’s ninth Philippic speech was memoria but, despite Cicero’s skillful argumentation (and his legal acumen), the majority was not to be convinced that Servius’s death could be attributed to enemy action. 90 In addition to a public funeral, only a bronze statue not a gilded one was finally granted. As Cicero had correctly foretold, it was Servius’s works, not his statue, that ensured his fame as a jurist. When Pomponius took notice of the statue, still standing in the forum Romanum in the 2^nd century CE,91 he did so because he was familiar with Servius’s oeuvre. So, the one recognizable statue mentioned in the Digest is remembered because of the jurist: a quite peculiar case of memoria, in which the relationship of image and person seem reversed.