The Character of Senatorial Arbitration
It is clear that there was no diminution in our period of the "wearisome procession of embassies" from the Greek world demanding senatorial arbitration of interstate disputes.[2] As usual, most of those known to us concern territory: we have epigraphic record of such disputes between the Narthacians and Melitaeans of Thessaly,[3] and between Magnesia and Priene, both around 140,[4] between the Messenians and Lacedaemonians ca. 138,[5] between Samos and Priene in 135,[6] between Hierapytna and Itanus in Crete in 140 and again in 112,[7] between Lato in Crete and one of its neighbors, probably around the same time,[8] and between Thronium and Scarphea in Locris around the turn of the century.[9] The referral to the Senate of the land dispute between the Athamanians and Ambraciots may
well also belong after 148,[10] while that between a Thracian king Cotys and the Greek city of Abdera probably dates to the latter half of the second century.[11] A case about which we are particularly well informed, however, concerned not land but the privileges of the Athenian and Isthmian-Nemean "guilds" of Dionysiac artists; this long quarrel came up at least once before the proconsul of Macedonia and at least twice before the Senate.[12] We also have record of the referral to the Senate of further disputes between Priene and Miletus in the 90s, at least one of which concerned access to Priene up the increasingly silted-up mouth of the Maeander;[13] of a proconsul's initiative in bringing a conflict between Sardis and Ephesus to mediation, at an uncertain date;[14] and of an appeal to the Senate probably in the 120s by those Delphians who had been expelled from their city for bringing charges of pilfering Apollo's property before the Amphictyonic Council.[15] To round out the picture we should not forget at least two, and perhaps more, requests by Nicomedes III of Bithynia and Mithridates VI Eupator for Roman settlement of their persistent struggle over the Cappadocian succession, an affair treated fully in chapter 9.
A few preliminary observations can be made before we examine some of the cases in detail. First, even with our limited sample it is dear that, just as before 148, appeals for Roman arbitration came above all from Greek poleis and native kings, all of them "friends and allies of the Roman
people." The virtual absence of appeals from the Macedonian heartland and Mysia and Lydia in Asia Minor, formerly core regions of the Antigonid and Attalid kingdoms, is not to be explained by proconsular usurpation of rights previously enjoyed by local inhabitants, but by these regions' lack of a tradition of autonomous foreign policy. Disputes in these areas will probably have been typically settled quietly by the proconsul with little chance of leaving a lasting record. On the other hand, it is worth notice that at a time when a Roman proconsul was available in Macedonia, and after 131 in Asia Minor as well, the forms of international diplomacy continued to be observed not merely for the great poleis of Greece and Ionia but also in treating the troubles of such minor states as Narthacium and Melitaea in Thessaly, the Athamanian and Ambracian nations in north-central Greece, Thronium and Scarphea in Locris, and Hierapytna, Itanus, and Lato in Crete—not to mention the contentions, as complex as they were tiresome, of the Dionysiac artists.
A stele conveying the Senate's decisions, prominently published by the victorious party in its market or major sanctuary, stood not only as a vindication of its rights but as an impressive reminder of a direct and effectual relationship to Rome, the center of power, for Narthacium as well as a city with as conspicuous and illustrious a history as, for example, Priene. Not only Athenians but even the ambassadors from a Thessalian backwater might be addressed honorably in the senatorial decree as "fine and good friends from a people fine and good, our friend and ally."[16] The symbolic importance of such public texts is nicely illustrated by the decision of the Athenians, who had dearly made their effective championing of the rights of their "guild" of Dionysiac artists against the Isthmian-Nemeans a point of pride, to adorn the south wall of the Athenian Treasury with a copy of the senatorial decree in their favor, a highly conspicuous location, where it was (and remains) visible to all coming up the Sacred Way to the Temple of Apollo.[17] Prominent publication at Delphi was of course important merely for the protection of the rights of the Athenian artists; but it was also a projection of Athens's prestige and its links with the hegemon. It would be somewhat myopic to neglect the symbolic dimension of such an ostensibly pragmatic measure.
The role of the Senate bulks far larger than that of proconsuls in our evidence. The great majority of our documented cases came before the Senate rather than before proconsuls. This is in part no doubt because it was senatorial decrees that tended to be published by the participants, rather than letters of proconsuls; in general, proconsuls, who dearly (as we shall see) did play some part in interstate arbitration, generally merit only peripheral mention, buried in senatus consulta , honorific texts, or other documents of various types.[18] The emphasis on the Senate is doubtless also connected with the ideological dimension of the publication of such texts that we have just noted: senatorial decrees will have suggested international diplomacy, while proconsular letters smacked of external intervention. Yet it seems dear enough that while proconsuls might well make efforts at mediation, as a rule they must have passed disputes between states on to other tribunals, above all the Senate, for consideration and usually executed only minor administrative details in connection with them.[19] A proconsul who intervened too forcefully in the local disputes of "free" cities risked censure from the Senate:[20] there was a danger not only of infringing the privileges of "friends and allies" but also of intruding upon the Senate's prerogative in foreign relations. The emphasis on the Senate as arbiter is therefore surely not merely an illusion created by the self-image of Eastern states. The persistence of the forms of international diplomacy—the proper province of the Senate—long after the arrival of Roman proconsuls in the East is a noteworthy sign of continuity across the traditional dividing line of 148 (or 131).
There is no reason to believe that communities were under any compulsion, legal or moral, to bring their disputes before the Senate.[21] When
Rhodes and Stratonicea agreed to bring their quarrel to arbitration, one Posidonius of Bargylia persuaded the parties to refer it to his home city rather than to Rome.[22] Other evidence as well suggests that international arbitration by Greeks without Roman involvement was by no means unusual,[23] and those cases that actually came before the Senate may well have been only a small minority of the total. The possibility of gaining the sanction of Rome's imperium for possession of disputed territory or some other advantage was surely incentive enough to attract appellants—especially those who hoped to turn cordial relations with Rome to their advantage. It is no accident that parties who could boast of being Rome's "friends and allies" commonly "renewed" the relationship pointedly at the beginning of their speeches in the Senate.[24]
A certain amount of one-upmanship in respect of Roman friendship was surely at play on not a few occasions. We noted in chapter 5 the collapse of the agreement mediated by Cn. Cornelius Sisenna between the quarreling rival "guilds" of Dionysiac artists. Now, however, the Athenian polis itself became directly involved on behalf of the Attic artists and took the case to the Roman Senate. There Athens, which enjoyed considerable goodwill in Rome after almost a century of excellent relations, won its point and thus demonstrated its importance in a matter touching its honor.[25] On the other hand, the tables could be turned, as the case of Abdera and Cotys of Thrace shows. Cotys had appealed to the Senate for possession of some territory that Abdera claimed as well, sending his own son among the envoys to make his plea—an impressive mark of respect, it would seem, whose possible effect on the senators troubled the Abderites.[26] The Abderites hoped to improve their chances by enlisting some friends from Teos in Ionia, Abdera's mother city, who could exploit their
home city's store of goodwill in Rome.[27] These adroit diplomats set about their business with zeal: they "endured both mental and bodily hardship in meeting with the leading men of the Romans and winning them over with their daily perseverance [?]; and when they had caused the patrons of their dry to assist our people, they made friends of those who favored and urged the interests of our opponent through their exposition of the situation and by daily visits at their atria."[28] We can probably conclude that Abdera won its case from the extent of Abderite gratitude evinced in the subsequent honorific decree for the foreign envoys.[29]
Both of these cases well illustrate what we could otherwise guess, that those who appealed to Roman arbitration will have been those who believed they would gain an advantage over their opponents thereby, while, on the other hand, there had traditionally been considerable pressure for the other party to go along with an offer to submit to arbitration.[30] While there is no evidence for the common assumption that only formally "free" cities or peoples had the legal right to appeal to the Senate,[31] it is dear that
in practice that would have been the rule, for these were precisely the communities that enjoyed the most friendly relations with Rome. The Abderite inscription also gives a unique glimpse at the preliminary work foreign envoys had to undertake—especially those who were at some disadvantage—in order to lay the ground for a favorable hearing on the derisive day. Haunting the atria of the great in Rome, showing up at every salutatio , was an exhausting business, demanding considerable energy and persistence. One might indeed have to go through this ordeal merely to get a hearing before the Senate, as did, for example, those Delphian exiles who came to Rome to complain of unjust treatment by the Amphictyonic Council ca. 120.[32]
As we have seen, a proconsul might pass disputes on to the curia , and Roman envoys might encourage appeals to the Senate in a similar fashion. For example, Roman embassies were sent to Crete in ca. 142 and ca. 114 to settle wars on the island, the continual result of the rivalries of Gortyn and Cnossus.[33] The embassies investigated disputes on the spot, attempted to compose differences, confirmed some previous accords, and sent the Hierapytnians and Iranians—whose conflict was only one dimension of the wider conflict—-on to Rome to plead their case before the Senate.[34] We know that probably around the same time as the Hieraptynian-Itanian appeal to the Senate of 112 a similar case between Lato and a neighbor was sent ex senatus consulto to Miletus for settlement, and it is tempting to imagine the same procedure behind many of the other settlements and territorial delimitations that seem to duster around 111,[35] although, obviously, Cretans were able to patch up quarrels on their own as well, and there is no sign that the major participants, Gortyn and Cnossus (which had embarked on a peacemaking initiative of its own, it seems), submitted their differences to Roman arbitration.[36] But of course, certainly in the latter case and most probably in the former, the sending of the Roman
embassy to Crete was itself brought on by appeals from involved parties to the Senate for a settlement.[37] The picture of initiative from below thus remains valid.
Some broad patterns in the Senate's handling of these appeals are apparent. It seems without exception that where prior decisions by other competent authorities existed the Senate saw its function merely as upholding or choosing one of them.[38] Obviously, in some cases these would be prior Roman decisions or the results of procedures laid down by Romans. Thus, for example, the issue that Athens brought before the Senate in championing the rights of its "guild" of Dionysiac artists against the Isthmian-Nemeans was above all whether the Senate would give its sanction to the agreement reached as a result of arbitration by the proconsul Cn. Cornelius Sisenna but afterwards ignored by the Isthmian-Nemeans; it did.[39] Similarly Demetrius of Rhenea, priest of Serapis at Delos, appears to have convinced the Senate that the Athenians were acting contrary to a previous senatus consultum —perhaps an earlier ruling affecting the case, or the decree that granted the island to Athens after the war with Perseus.[40] It was of course only natural for an appellant who sought the renewed validation of a former Roman ruling to turn to the Senate, which doubtless explains the recurrence of this feature in our evidence. But even an arbitral decision reached in accordance with an earlier senatorial decree was not necessarily sacred, as the reopening of the case involving Hierapytna and Itanus on Crete a generation after an earlier settlement demonstrates.[41] Other cases show that what might seem at first glance to be a prejudicial preference for Roman arrangements was in fact above all a reluctance to overturn the rulings of the legitimate, competent authorities. In the dispute between Melitaea and Narthacium, among the numerous rulings cited in their favor by both parties,[42] the Senate simply declared that the decisions reached under the laws of Flamininus should be upheld, "for it is difficult to overturn what has been judged in accordance with [the] laws."[43]
Inasmuch as the laws given by Flamininus are "the laws of the Thessalians, which they use to this day,"[44] this derision cannot be reduced to simple partisanship for a prior Roman arrangement: a decision reached in accordance with the laws of the land was not to be set aside in favor of what had been decided by other arbitral procedures. On the other hand, not much later, in the quarrel between Priene and Samos, the Senate upheld a Rhodian arbitral judgment for Priene in preference to a term of the settlement laid down by their own proconsul Cn. Manlius Vulso under the advisement of the commission of ten senators. The words with which the Senate did so closely echo the previous case: "It is difficult for us to alter what the Rhodian people, with the consent of both parties, has decided, and the delimitation it has made."[45] The "difficulty" to which the Senate alludes in the formula it repeats in these last two decrees is thus dearly that of overturning any authoritative, legitimate decision, not a Roman arrangement as such. The result of the Priene-Samos case is particularly important, for here the Senate regards a judgment according to Greek arbitral practices—the stress on the mutual consent of the parties is particularly noteworthy—as of higher authority than the decision of a Roman imperator . There could hardly be a better example of the Senate's respect for and encouragement of the Hellenic tradition of international arbitration.[46]
A further feature of the pattern is that, as a rule, when the Senate could not simply confirm the validity of an earlier ruling, it typically passed the case on to a third party, after laying down the broad principle on which it was to be judged. So the dispute between Hierapytna and Itanus was twice referred by the Senate to Magnesia on the Maeander, after ruling that the land was to be held on the same terms as it was before the war of ca. 144-141.[47] The dispute between Magnesia and Priene was referred to Mylasa,
with the instructions that the land was to be awarded to whichever city held it when it established friendly relations with Rome,[48] as was that between the Messenians and Lacedaemonians, with the instructions that the land was to be held as it was when Mummius was in Achaea.[49] We do not know how the questions were framed when the dispute between the Athamanians and Ambraciots was referred to Corcyra, when that between Lato in Crete and a neighbor was passed on to Miletus, or when those between Miletus and Priene were judged by Erythrae and Sardis.[50]
The dearest evidence of how these arbitral dries were chosen is given in the decree regarding Priene and Magnesia: in the first place an arbitrator from among "free" communities is to be chosen by mutual consent of the parties, and only if agreement is impossible is the praetor allowed to impose an arbitrator of his own choice.[51] Although this procedure is not spelled out for us in other decrees, we can probably assume that it was standard, consistent as it was with the norms of Greek international arbitration. On the whole it is dear that arbitrating cities were usually drawn from relatively near the disputants (for example, the Athamanians and Ambraciots were judged by Corcyra, and perhaps Locrian disputes went to Athens), although the referral of cases from the Peloponnese and Crete to Mylasa, Miletus, and Magnesia on the Maeander seems to indicate a distinct preference for the poleis of western Asia Minor even after the war with Aristonicus.[52] We may suppose that the choice of a city to arbitrate an international dispute conferred no small honor upon it; and the inscrip-
tion published at Magnesia that describes its dutiful and painstaking investigation into the claims of Hierapytna and Itanus leaves little doubt that a case of international arbitration was a source of no small civic pride in an age when other means of acting on the world's stage were largely lost in the past.
This factor doubtless helps, although it is not sufficient, to explain the Senate's practice of delegating derision in this way after framing the terms of the dispute in a kind of formula, which was a major departure from the former practice of Greek international arbitration. The procedure of course resembles that employed for property disputes in Roman civil law, with its division between the definition of the issue at law before the praetor (in iure ) and the judgment of the facts before a judge (apud iudicem ) in accordance with the formula laid down by the praetor.[53] Senators may well have modeled the procedure on a familiar parallel, but the analogy is, after all, only an analogy. No interdictum uti possidetis assuring the praetor's protection of legitimate possession of property underlay the process; the Senate possessed no imperium or other coercive right with which to execute sentence, nor, as we shall see, the general inclination to do so. In short, the similarity of the procedure to that of the civil law does not imply that senators saw themselves as some correlate to the praetor, dispensing and executing justice in a community embracing the
. The explanation of the procedure lies elsewhere. It should be dear, both from the Senate's readiness to uphold prior rulings and from its habit of passing on cases where this was impossible to other tribunals, that its members generally felt that they had more important things to do than to burrow into the often labyrinthine and tedious claims and counterclaims of Greeks. The existence of a great Hellenic tradition of international arbitration provided an avenue for relief, all the more useful in that it was a way of dispensing honor to the arbitrating states.
Yet a significant peculiarity of the Senate's behavior remains in its practice of framing the issue for the arbitrating city beforehand rather than passing on the case as a whole. It is too much to say that this amounts to usurpation of the true power of decision, on the grounds that the arbitrator judged only matters of fact, while the "point of equity at issue" had already been decided by the Senate; on that view, the Senate does no more than preserve forms in delegating the remainder of the case to a third
party.[54] Scholars have not been sufficiently appreciative of the amount of leeway given the arbitrating city by the senatorial quasi formula. Typically the formula specified a temporal terminus at which the arbitrating city was to determine the legal status of the land (see below); the arbitrators' job was, however, not the simple one of determining who de facto controlled the land at the date specified, usually only a few years before, although in one case as much as half a century, but who had the legal right to it at that time.[55] That the arbitrators judged more than a simple question of fact is most clearly demonstrated by Magnesia's settlement of the Hierapytna/ Itanus dispute—the only case in which we possess a fairly comprehensive account of the arguments and evidence that had weight with the arbitrators. Their interpretation of the injunction to establish in what manner the land was held before ca. 144 required establishing all matters not only of fact but also of law,[56] and awarding judgment not simply to the factual possessor at that time but to its rightful owner.[57] The point of the Senate's terminus of ca. 144 was simply to annul the legal effect of subsequent developments, including the events and issue of the war itself; for since even military conquest was conceded to be a legitimate basis of ownership, any decision of legality necessarily depended on the temporal limit chosen.[58] By establishing as the terminus the beginning of the mid-century war in Crete, the effect of the quasi formula was simply to deny the relevance to the case of Hierapytna's occupation of the land in question as a result of or after that war (hence the request to remove Hierapytnian structures from the disputed land). The senatorial formula did not in fact clinch the verdict in advance, and the scope of Magnesia's responsibilities—which its representatives took up with the greatest seriousness—was not greatly narrowed. Magnesia itself, when its own dispute with Priene was heard by the Senate ca. 140 and was passed on for arbitration to Mylasa, had certainly treated the second stage of the case as the derisive one, for
in its inscribed dossier of documents relating to the case it is the advocates before the Mylasan tribunal, not the ambassadors to the Senate, who are selected for special civic commendation.[59]
Nor do the quasi formulae we possess seem to be intended to bias the outcome heavily in favor of Rome's friends, as some have thought; on this interpretation, international arbitration under the Romans was a sham, for success or failure depended in fact on the degree of obsequiousness manifested toward the hegemonic power.[60] We must be careful here. As we have seen, the very act of appealing to Roman arbitration implied a hope or expectation of thus gaining an advantage over the opposition, and "renewals" of alliances and congratulation for victory are unmistakable signs of efforts to curry favor by stressing past friendly relations and current loyal feeling.[61] One would not want to dispute that "a guarantee of the integrity of territorial possessions is a normal feature of Rome's concept of amicitia at the state level,"[62] especially now that we know that ca. 100 explicit instructions were given to proconsuls of Macedonia to prevent "friends and allies of the Roman people" from being driven from their borders.[63] A hegemonial power that refuses to help its friends is likely to have a short history. But our question is a more limited one: did the Senate exploit its practice of framing the issue to be resolved in a way designed to reduce the question to one of loyalty to Rome rather than justice?
At first glance the appearance of instances in which the point of entry into Rome's friendship is made or suggested as the temporal terminus lends plausibility to this view. But too much has been made of this principle, which is actually adopted by the Senate in only one known case: the Senate's quasi formula regarding Magnesia and Priene ca. 140 ordains that the arbitrating state is to "award the land to whichever of these cities is found to have held this land when it entered into friendship with the Roman people."[64] The Melitaeans and Narthacians made hay with this idea around the same time before the Senate, both of them claiming to have
possessed the disputed territory when they entered into friendship with Rome—and yet not a word is wasted on this particular matter by the Senate in its ruling, which chose instead to uphold an earlier arbitral decision according to the laws of the Thessalian League.[65] Nor did the Senate make anything of the entry into Roman friendship in the Messenian-Lacedaemonian case or in the case of Hierapytna and Itanus.[66] There is no sign, or reason to believe, that the quasi formula of Magnesia vs. Priene was more than exceptional, perhaps chosen faute de mieux . Only a few years later, during Priene's territorial dispute with Samos, the Senate was able instead to uphold a prior Rhodian judgment—over a specific grant of the proconsul and senatorial commission who arranged the settlement of Asia in 188.
Further, it is hard to accept that this formula was designed to bias the case in the favor of the more loyal ally. Neither Magnesia nor Priene lacks signs of Roman favor toward mid-century: Magnesia had been given its "freedom" in 188 as an exception to the principle that governed the settlement, for it had still been in Antiochus's hands at the time of the crucial battle, while Priene had received at least strong verbal support from the Senate in the Prieneans' recent quarrel with King Ariarathes of Cappadocia.[67] Inasmuch as there is no evidence for the notion that senators thought that either Magnesia or Priene might deserve admonishment for a lack of zeal toward Rome, this appears to be a singularly poor choice to make a special example of rewarding loyalty and punishing the reverse. Besides, the formula of course did not reward loyalty as a "friend and ally of the Roman people," that is, since the establishment of friendly ties, for it took into consideration as the decisive terminus only the moment at which amicitia et societas was concluded. In fact, despite Priene's apparently excellent relations with Rome, it lost the case to Magnesia; yet far from being discouraged thereby Priene came to the Senate only a few years later for arbitration of its quarrel with Samos.[68] Priene, at least, did not understand the formula as a blatant profession of bias that reduced Roman arbitration to a sham.
The formula in the dispute between Priene and Magnesia was evidently less sinister to participants than it may appear to us, and an explanation
might be sought without assuming gross bias. The other two known formulae have in common with this one that they establish a terminus after which no further act—most obviously, subsequent occupation (hence the attested provisions for evacuation by the current occupier)—is allowed to have bearing on the case. Some such terminus had to be chosen.[69] We saw that the formula offered for the case of Hierapytna and Itanus called for the status quo ante bellum . That given Miletus for arbitration of the claims of Messene and Sparta is likewise aimed at confirming the legal status quo at the time of Mummius's presence in Achaea. The framing of the present formula similarly was designed to restore the legal status quo at a time in the past, but in this case the time chosen was the moment of entry into Rome's friendship; in effect, the principle "froze" rights to the land at the point of the confusion of amicitia and did not permit a "friend and ally" to lose the good legal title that it had held at that moment. This is presumably a manifestation of the principle noted already that Roman "friends and allies" were entitled to protection of their territorial integrity—a distinct potential advantage of Roman friendship. But of course those who resorted to Roman arbitration were, as a rule, Rome's friends. Were this formula employed in a case involving a party that was not Rome's friend and ally, imputation of bias might be apt, but in this case neither Magnesia nor Priene, "friends and allies" both, is likely to have disagreed with the principle that underlay it.
The Roman novelty of dividing into two parts those cases in which a prior decision by a legitimate authority did not lie ready to hand, limiting the Senate to the establishment of a legal terminus while leaving the investigation of actual rights and facts to Greek cities, is not, therefore, to be explained as a devious procedure designed to reward friends and harm enemies while maintaining some of the forms of traditional Greek international arbitration. On the other hand, it is not to be denied that to frame the legal question in senatorial quasi formulae was not to take an entirely passive role: had the senators' object been simply to dear the floor of such ostensibly minor business, why did they not simply pass entire cases on to arbitrators without even this much intervention? The division of responsibility with Greek arbitrators, and the readiness wherever possible to hold to a prior ruling, suggest that the Senate above all wished to avoid involvement in the tedious details of international disputes; it could, however, with minimal trouble and administrative involvement, maintain a conspicuous "superarbitral" role that allowed it to act the beneficent pa-
tron of its "friends and allies" and dispense honors to "free" cities by leaving them the decisive role in settling interstate disputes, one which, it seems, they eagerly played, inasmuch as it confirmed their status in the Hellenic community.