Itanus vs. Hierapytna: A Case Study
A more comprehensive examination of the affair of Itanus and Hierapytna in eastern Crete, a case that has been singled out as an illustration of the Senate's irresponsible handling of international disputes,[70] will give a further basis for judgment of Roman involvement in Greek arbitration. The general outline of events is as follows. In the later 140s a war involving much of Crete flared up, in the course of which the Hierapytnians and Itanians first disputed control of land adjoining the Dictaeum, along with some islands. A senatorial embassy to the island put an end to the war, and Itanus and Hierapytna appealed to the Senate concerning the disputed land; the Senate passed the case on to Magnesia on the Maeander, prescribing that the land should be held on the same terms as it had been immediately before the outbreak of the war. Magnesia awarded the land to Itanus. Yet nearly thirty years later, in 112, after another general war on Crete, Hierapytna and Itanus again appealed to the Senate for determination of ownership tights to the land, and again the Senate referred the case to Magnesia, defining the issue in precisely the same way: the rights to the land were to be those that obtained immediately before the outbreak of the war of the 140s.[71] On the face of it, it might seem indefensible that the Senate allowed the case to be reopened at all after the Magnesian tribunal had settled it nearly thirty years before. Further, the Senate's order to the Hierapytnians to remove all buildings that they had built on the disputed land has been regarded as troublingly prejudicial.[72]
As for the first point, one scholar has rightly noted that Itanus attacked the Hierapytnians "after . . . the Magnesian tribunal had rendered its [first] decision. . . . The Romans could not go further than attempt to stop
the war and bring about a reconciliation."[73] For their part, the Hierapytnians never seem to have complied with the Magnesian decision; instead of evacuating the land, they built on it;[74] presumably it was this action that incited the Itanians to attempt to seize the land by force, causing the Hierapytnians' appeals to the Senate in 115 and 114 and the dispatch of a senatorial commission of investigation under one Q. Fabius.[75] The matter was complex, then, and it is not unlikely that another hearing was justifiable. In the badly damaged portion of the senatus consultum that must have contained the rationale for the reopening of the case we can make out only the fragmentary sentence "[They] were neither present at the decision nor . . ."[76] Perhaps further arguments and evidence presented to Fabius on the spot in Crete suggested that the validity of the Magnesian decision was vitiated in some way. Certainly it cannot be maintained that the case was reopened merely out of favor for the Hierapytnians.[77] The second hearing may have been initiated by the appeal of the Hierapytnians; but to pass the case on to the same tribunal that had rejected their claims before, with the very formula under which they had been defeated previously, was no way to favor them. As we shall see in a moment, the Magnesians on the contrary convinced themselves that Rome was hostile to the Hierapytnians. Although many crucial details escape us, then, our evidence hardly supports condemnation of the Senate for permitting the case to be reopened.
In favor of the second point—that the Senate prejudiced the case by ordering, at Itanus's request, all buildings to be removed from the land under dispute—we note that the Magnesian judges themselves took this as a sign that the Romans were hostile to the claims of the Hierapytnians, who had built on the land and whose constructions now had to be removed.[78] But was the Magnesians' assumption correct? A parallel exists,
already noted: in the territorial dispute between Magnesia and Priene, the Magnesians appear to have been required to evacuate the land in question and indeed to hand it over provisionally to their opponents before the consideration of its legal status was considered by Mylasa.[79] That case the Magnesians won.[80] Evidently on that occasion the case was not thereby prejudiced. It seems more plausible that the intention of such a preliminary order to evacuate the land was precisely to remove the prejudicial effect on the case of continued occupation by one party. The Hierapytnians will have built the buildings after the terminus stated in the formula, for it was only in the war of mid-century that they had occupied the land.[81] Since the legality of that occupation was precisely what was being questioned, the buildings that they constructed, which might have prejudiced the issue, were to be removed in order to return the land to the status quo ante bellum of ca. 144.
The Magnesians may have had reasons of their own for discerning Roman partisanship here. For example, in a different aspect of the case the arbitrators are eager to seize upon a highly dubious indication of Rome's attitude toward the outcome. They note that in the senatus consultum in whose drafting Fabius, the Roman envoy who had actually visited the site, had assisted, the land is not positively affirmed to be sacred; moreover, the Senate in its formula had laid down that the victorious party should "be allowed to hold, occupy, and exploit" it, but since the word "exploit" was not appropriate to sacred land (the Magnesians surmise) Fabius must have rejected the Hierapytnian argument that the land belonged to the Dictaeum, which they controlled.[82] This is worse than "un cavillo";[83] it is a gross distortion of the intent of a quite open-ended formula. In both cases the Magnesian tribunal found prejudice in the very scrupulousness of the wording of the decree. It should be noted that far from condemning these
supposed signs of Rome's bias, the Magnesians in both cases use them to support their ruling once again in Itanus's favor. An explanation for their zeal to invoke Roman support of their decision lies ready to hand: the city's honor was at stake. The validity of Magnesia's former ruling was now, after the passage of a generation, being challenged by the reopening of the case and the demand for its reexamination under the very same terms as before. Although there is no reason to think that the problem had lain with Magnesia, there will have been a strong inclination for the present Magnesian arbitrators to prove that their city had been right the first time in ruling for Itanus. Indeed, it appears that the second time around the Magnesians did not even bother to visit the disputed territory; they were apparently quite satisfied to divine whether or not the land at issue was sacred from guesses about the attitude of Fabius based upon the wording of the senatus consultum .[84] It is Magnesia rather than the Roman Senate that is most exposed to the charge of bias in the case of 112. In short, Hierapytna vs. Itanus does not by any means bear out the charges brought by critics of the Senate's handling of international arbitration, for whom it has been the readiest target.
For the period before ours a general senatorial reluctance actively to enforce Roman decisions on international disputes has been persuasively delineated.[85] The evidence from our period suggests no change in this respect even though now Roman decisions might have been enforced more easily, inasmuch as a proconsul was present in Macedonia and (after 131) in Asia Minor. The apparently blithe indifference that the Isthmian-Nemean
exhibited in ignoring at least two senatus consulta and a settlement arbitrated by a proconsul induces reflection about how great an effect even the senatorial decree of 112 had, despite the Athenians' rather imposing form of publication.[86] Likewise, as we have seen, the earlier settlement between Hierapytna and Itanus, referred by the Senate to Magnesia in 140, seems to have been successfully defied by Hierapytna—at least, the Hierapytnians were able to occupy and build on land that had been awarded by the earlier ruling to the Itanians—until a further appeal to Rome initiated the action that resulted in the senatus consultum of 112. One scholar justly comments: "No little dexterity has been required to
combine the view of Rome as ever threatening force as a sanction with awareness of the actual case-history of her patient and politely formal reception of a stream of requests for arbitral services."[87] Once again the fine but important distinction between "the power to compel and the actual exercise of compulsion" must not be ignored or blurred.[88] The spectacle of hosts of foreign embassies beating the path to the curia and to the atria of Roman principes for consideration of this or that minor dispute was a constant affirmation of the imperium populi Romani . Likewise, by taking on the preliminary hearing of the case and playing a conspicuous prior role in either upholding past rulings or laying down a formula that bound arbitrators to whom the case was then passed, the Senate symbolically confirmed its primacy of decision while passing the tedious details to others. But the full enforcement of senatorial decisions or those of its agents or delegated powers was beyond Rome's administrative resources, and a major effort toward that objective was only worthwhile if Rome's imperium , its power to compel obedience in general was at risk and a point had to be made. In our period that situation arose only in the mid-90s, as Mithridates VI Eupator's aggressive foreign policy awoke the Senate from its apparent complacency regarding the security of its Eastern imperium and King Ariobarzanes was provided with an escort to take up the throne of Cappadocia which the Senate had conferred on him.[89] That story is traced elsewhere; it is noted here only as the sole instance in which Rome acted decisively to implement a mediatory or arbitral decision reached by the Senate.
While I have argued that on the whole criticisms of the Senate's record in international arbitration between the Achaean and Mithridatic wars do not convince, a less benign aspect of senatorial adjudication—not, strictly speaking, arbitration—must be noted in order to balance the scale. As in the previous period, when (to choose a conspicuous example) the Senate never scrupled to hear complaints from disaffected elements within the Achaean League and thus to intervene in its internal affairs, the Senate after 148 did not have a religious regard for the sovereignty of its Hellenic allies. We have already noted that the Senate around 120 gave an audience to some exiles from Delphi who had been expelled from the city because of their allegations before the Amphictyonic Council of crimes against the sanctuary, as also to a counterembassy from their opponents. The patres
passed a decree favoring the exiles, which an unnamed proconsul of Macedonia conveyed to the Amphictyonic Council, urging it to judge accusations about pilfering the sacred treasures.[90] The Council immediately reversed itself and voted honors for the reinstated exiles, which were inscribed, perhaps pointedly, on the monument of Aemilius Paulus.[91] In another case (which may not, however, belong to our period), the Senate decreed that Demetrius, the priest of Serapis at Delos, ought not to be prevented by Athenian officials from caring for that sanctuary.[92] There is no sign that Athenians had been present to argue against Demetrius's allegations, and it is hard not to see this as a troubling infringement of Athenian sovereignty even if it was the Senate to which Athens owed its possession of the island.[93] While in this case the Senate seems to have maintained the language of mere recommendation ("As far as we are concerned [Demetrius] is permitted to care for [the sanctuary], just as before")[94] and the Athenians seem to have debated for some time whether or not to adhere to the Senate's decision,[95] there seems little doubt that the Roman decree had considerable, perhaps decisive influence, as it clearly had in the Delphic Amphictyony in the other case. Such meddling by the Senate was, to judge from our evidence, rare indeed, but when it occurred it was even more difficult to check than that of troublesome proconsuls.
This study reinforces the more recent line of interpretation according to which Rome's assumption of a role in Greek international arbitration is seen not as something forced upon unwilling subjects but rather initiated by the appellants who were adapting to the changing focus of power in the Hellenistic world.[96] The genesis of a permanent Roman presence in the East from 148 and the assignment of a second provincia in Asia Minor
from 131 do not appear to mark a watershed in Rome's handling of Greek international disputes. Despite the presence of two proconsuls in the East and at least the potential mechanism for replacing the system of Greek international arbitration with a fundamentally new imperial structure, the old Hellenistic norms persisted. As before, initiative came from the Greeks themselves; the choice to resort to the Senate was free, and the alternative of arbitration among Greeks without Roman involvement remained open; hearings took place before the Senate in the context of diplomatic relations between sovereign, foreign powers; the Senate often delegated decision to other Greek states and is not known (outside the context of direct confrontation with a major foreign power, namely, Mithridates of Pontus) to have insisted upon enforcement of a decision reached by it or by a delegated arbitral tribunal. Criticisms of the Senate's handling of the Greek practice of international arbitration do not succeed in showing that it exploited the practice to serve its interests or undermined it through indifference or arrogance. The prominence of the Senate in international arbitration in the later second century, then, was established and assured by a consensus of interest among all parties. Appellants reinforced and renewed their ties to the center of power and attempted to exploit this connection to their advantage, cities to whom arbitration might be delegated gained honor thereby and enjoyed diplomatic prominence, and senators and the Senate as a body received continual confirmation of their hegemonial position in the
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