PHYSICIANS AS FIGURES OF AUTHORITY IN THE ROMAN COURTS AND THE ATTITUDE

TOWARDS MENTAL DISEASES IN THE ROMAN COURTS DURING THE HIGH EMPIRE
Author(s): Ido Israelowich
Source: Historia: Zeitschrift für Alte Geschichte , 2014, Bd. 63, H. 4 (2014), pp. 445-462
Published by: Franz Steiner Verlag

Stable URL: https://www.jstor.org/stable/24433631

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Franz Steiner Verlag is collaborating with JSTOR to digitize, preserve and extend access to
Historia: Zeitschrift für Alte Geschichte

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
Historia
Zeitschrift fur Alte Geschichte
Revue d'Histoire Ancieime
Journal of Ancient History Historia Band 63 · Heft 4 · 2014
Rivista di Storia Antica © Franz Steiner Verlag, Stuttgart

PHYSICIANS AS FIGURES OF AUTHORITY IN THE ROMAN

COURTS AND THE ATTITUDE TOWARDS MENTAL DISEASES
IN THE ROMAN COURTS DURING THE HIGH EMPIRE1

Abstract: This article examines the attitude of Roman law towards madness during the High Ro
man Empire through exploring the role of physicians and medicine in Roman courts. It reviews the
prominent views which physicians themselves expressed about madness and considers the relevance
of medical knowledge in cases involving the mad; violence; and questionable parenthood in order to
assess the scope of medical authority. In conclusion it seeks to explain the irrelevance of medicine in
diagnosing madness, positing that it was not seen by the general public as a medical matter. Conse
quently, the legal definition of madness under the Principate was not a medical one, but a social one.

I. Introduction

This article examines the role of physicians as figures of authority in the Roman courts
during the High Roman Empire.2 More specifically, it aims to answer the question of
why physicians were not consulted by the Roman courts in cases of madness while
their authority was highly esteemed in cases of suspicious death or acts of violence and
in cases of disputed maternity or paternity.3 From the publication of XII Tables in the

I would like to thank the participants at the 'Homo Patiens: Approaches to the patient in the ancient
world' conference in the Humboldt Universitat zu Berlin (2012) and the participants at the 'Ap
proaches to ancient medicine' conference in Cardiff University (2012). I am also very grateful to
Michael S. Fontaine and Manfred Horstmanshoff for their helpful comments.
The term 'figures of authority' is better suited than 'expert witnesses' since Roman law clearly dis
tinguished between witnesses who were present at court and written testimonies of persons who were
not present at court (Idem diuus Hadrianus Iunio Rufino proconsuli Macedoniae rescripsit testibus
se, non testimoniis crediturum. uerba epistulae ad hanc partem pertinentia haec sunt: ,Quod crimina
obiecerit apud me Alexander Apro et quia non probabat nec testes producebat, sed testimoniis uti
uolebat, quibus apud me locus non est (nam ipsos interrogare soleo), quern remissi ad prouinciae
praesidem, ut is de fide testium quaereret et nisi implesset quod intenderai, relegaretur'. Gabinio
quoque Maximo idem princeps in haec uerba rescripsit:, Alia est auctoritas praesentium testium, alia
testimoniorum quae recitari solent: tecum ergo delibera, ut, si retinere eos uelis, des eis impendia'.
Dig. 22.5.3.3-4). As will be portrayed below, even when the Roman courts did rely on physicians
there is no evidence that they were present in court.
For an overall discussion of the understanding of madness in the Graeco-Roman world, from Homer
until late antiquity see Bostman (2009).

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 446 Ido Israelowich

fifth century BCE, and well into t

acknowledged individuals sufferin
by madness, according to the Rom
with the management of their pro
was appointed. As the Roman la
more detailed. Madness was the gr
circumstances. However, nowher
hinted that the courts required as
that despite the far-reaching impl
challenged by defendant or accuse
In order to consider the attitude towards mental diseases in the Roman courts it
will be necessary to first analyze the legal ramifications of madness. Secondly, I will
enquire into the understanding of Graeco-Roman medical authors of the notion of mad
ness and mental illness. Next, I will examine the attitude towards madness and the mad
in Roman legal literature. Fourthly, the legal status of physicians during the Principate
must be ascertained. In the fifth section the positive evidence for the role of physicians
as figures of authority in the Roman courts will be discussed. Finally, in conclusion, I
will endeavor to answer the question initially posed, namely why was medical authority
unnecessary in legal disputes involving the mad.
The chronological limits for this study are set by the development of the Roman
legal institutions and the emergence of the medical profession in the Roman world. The
foundation of permanent courts during the late Republic, alongside the more general
transformation of the Roman juridical system into a scientific one during the late Re
public and Principate (in which legal disputes are settled predominantly by reference
to juridical responso), marks the age of Cicero as a terminus ante quem.4 In addition,
as will be shown below, it was during the reign of Augustus that Roman institutions
first alluded to medical professionals and to the practice of medicine as a profession.

II. Madness in the Eyes of Roman Law

It is stated in the XII Tables that si furiosus ?prodigusue? ess<i>t, agnatum gentili
umque in eo <familiaque> ?pecuniaque? eius potestas esto (if there be a madman ?or
spendthrift?, power in respect of him <and his familia> ?and goods? is to belong to
his agnates and familia). The requirement of a guardian in cases of heredes who were
furiosi or prodigi posed by XII Tab. V.7 is consistent with a well-documented Roman
habit to appoint a guardian for children under the age of puberty.5 In fact, during the
time of the XII Tables and long afterwards a guardian was supposed to be appointed

Bruce Frier identified Cic. pro Caec. as the turning point from the 'Ciceronian court' which was still
dominated by rhetoric, into a more scientific one, in which legal disputes are settled predominantly
by reference to juridical responso. Frier (1985).
Cf. Gai. 1.196; CJ 1.22 pr.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 Physicians as Figures of Authority in the Roman Courts 447

for a minor and for a woman of any age who were sui iuris. In such cases the guardian
was entitled tutor.6 In addition, the Roman legislator identified two other instances in
which guardianship was necessary. The first was that of a lunatic (furiosus) and the
second was that of a spendthrift (prodigus), but in the latter cases the guardian was
called curator? It is noteworthy that an appointment of a guardian was necessary under
these circumstances only if the person concerned was sui iuris. A person who was in
potestate, in manu, or in mancipio could have no guardian, since the main function of
the guardian was to manage the property of the incapable person, and a person alieni
iuris could have no property to administer.8
At the time of the XII Tables a paterfamilias could appoint a tutor to any person in
his manus or potestas, if this person were to become sui iuris after his death.9 If a tutor
was not appointed by will, the tutela went to the person who would, according to the
rules of intestacy, succeed to the property of the ward (pupillus) on the latter's death,
meaning the nearest agnate or agnates jointly. Failing agnates it went to the gentiles.
Similarly the cura of lunatics went first to the agnates and failing that to the gentiles.
The XII Tables were equally attentive to the need of a prodigus for a guardian. If a
person wasted property received by succession on intestacy as suus heres he could be
prohibited by magisterial interdiction from dealing with the property. The management
would then pass to the agnates.10 In later Roman law guardianship became an institu
tion aimed to protect the incapable in managing property, but during the period of the
XII Tables guardianship was assigned to the successors on intestacy and was designed
to protect the interests of future heredes. In addition, by the time of Gaius it was often
the case that the care of a lunatic or a prodigal belonged to one person under the law
of the XII Tables, but the praetor gave the administration to someone else because the
legitimus heres was unfit.11 Thus, under the Principate the diagnosis of the lunatic, and
the consequent appointment of a curator, was no longer restricted to the family. This
change is particularly important because the main driving force behind Roman legal
development during this period was remedy-based. Hence, if someone thought that an
individual with whom he/she was legally involved was mad it was their responsibility
to turn to the praetor (if in Rome) or to the governor (if in the provinces). In turn, the
ability of the praetor or the governor to appoint a curator must be understood as an af
firmation of the diagnosis.

6 Cf. Dig. 26.1.1 pr. 1 (Paulus, libero trigesimo octavo ad edictum).

7 Gai. 3.106; Dig. 27.10.1 (Ulpianus, libero primo ad Sabinum).
8 Jolowicz and Nicholas (1972), 121.
9 Jolowicz and Nicholas (1972) 121; Frier and McGinn (2004) 424.
10 Epit. Ulp. 12.2.
11 Saepe ad alium e lege duodecim tabularum curatio furiosi aut prodigi pertinet, alii praetor adminis
trationem dat, scilicet cum ille legitimus inhabilis ad earn rem uideatur; Gaius, libro tertio ad edic
tum provincia, Dig. 27.10.13. Ulp. Epit. 12.1 marked the following distinction between curators:
curators aut legitimi sunt, id est qui lege duodecim tabularum dantur, aut honoratii, id est a praetore
constituuntur; cf. Watson (1967) 113.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
448 Ido Israelowich

According to Ulpian, the XII Tab

property by law. He also suggested t
introduced by custom even prior to
duty of the praetor and the governor
who was a compulsive spender as th
prodigus belonged under the more g
that the praetor and the governor h
and the spendthrift stayed in care,
the spendthrift until he regained h
nos mores receperit).14 The use of t
lunacy in the same fashion in which
Ulpian nor any other of the jurists
a diagnosis of lunacy, except that a
even one of pure acquisition, becau
grounds, the furiosus could not get m
Typically, Roman lawyers of the
meaning of recuperation from madn
to execute such a diagnosis. Nonethe
is evident from Ulpian's statement t
in his curator's power.17 Furthermor
ness are often discussed in Quinti
permission of a lunatic to give evide
lunacy was not necessarily a perman
that a lucid interval could be reliabl
commonly perceived in similar term
gave preference to a son as the cura
it.20 Here the preference of giving t
a state of conflict of interests as a
because this situation was not substa
severe illness, which was often care
details concerning the son's curatori

Ulp. Libro primo ad Sabinum; Dig. 27.1

sed solent hodie praetores uel praesides, s
expensarum habet, sed bona sua dilacera
furiosi; Ulp. Libro primo ad Sabinum; D
Ibid.
Gai. 3.106.

Dig. 23.2.16.2 (Paul).

Kaser (1939); more generally see: Diliberto (1984).
See below.

Dig. 27.10.1. pr; CJ 5.70.6.

sed extat diui Pii rescriptum fìlio potius curationem permittendam in patre furioso, si tam probus sit,
Ulp. Libro primo ad Sabinum; Dig. 27.10.1.1.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 Physicians as Figures of Authority in the Roman Courts 449

again suggests that he understood lunacy in similar terms as he understood illness. In

his treatise to Sabinus, Ulpian confirmed that the care of a lunatic mother is the respon
sibility of her son; for pity is equal to both parents, although their power is not equal.21
Ulpian was conscious of the importance of accurate diagnosis of the lunatic before
appointing a curator, 'for many feign madness or mental illness so as to escape their
legal obligations by receiving a curator'.22 Indeed, the legal status of a furiosus had
extensive implications. For example, all actions relating to obligationes ex delicto would
have been rendered void by feigned madness. Roman law recognized no involuntary
delict. Guilt was necessary. Moreover, before the lex Aquilia guilty intention (dolus)
was necessary for conviction, but later negligence (culpa) sufficed.23 Hence furiosi,
alongside infantes, and infantiae proximi were incapable of delict, because they were
incapable of the necessary fault. Likewise, a lunatic was incapable of any transaction
for lack of understanding.24 It was therefore pertinent for the court to be able to identify
madness in a manner which was undisputed by both parties. Thus, it is clear that there
were profound legal implications to being mad. It is now pertinent to see how madness
was diagnosed, and if medicine and physicians worked in tandem with the Roman courts
in providing such a verdict.

III. Madness as a Medical Category

The first proviso for physicians to act as expert witnesses in cases involving madmen
is that they themselves perceived madness as a medical condition which could be di
agnosed using the discipline of medicine. This was indeed the case, though it would be
misleading to talk of a special branch of medicine which dealt with mental illness in
the Graeco-Roman world, or of a specially-designed treatment for such an ailment.25
Medical writers since the authors of the Hippocratic Corpus perceived madness as a
somatic condition, often the result of epilepsy or fever.26 The nosology found in the

Furiosae matris curatio ad filium pertinet: pietas enim parentibus, etsi inaequalis est eorum potestas,
aequa debitur. Dig. 27.10.4.
Dig. 27.10.6: observare praetorem oportebit, ne cui temere citra causea cognitionem plenissimum
curatorem det quoniam plerique vel furorem vel dementiam fingunt, quo magis curatore accepto
onera civilia detrectent.

Zulueta (1946), vol. ii, p. 198.

Furiosus nullum negotium gere<re> potest, quia non intellegit, quid agat, Gai. 3.106.
Stok (1996), 2283.
Cf. Hippoc. Loc. Horn. 33; Prog. 4,24. Madness could also have been caused by an excess of blood
in a woman's breasts: Hippoc. Aph. 5.40, or by a swelling of a wound: Aph. 5.65, Epid. .2.5.2. A
mental illness (φρενίτις) could be the result of too warm a body: Morb. 1.30, Loc. Horn. 33, or by
a humoral imbalance: Vict. 35. In turn, madness can be cured by drugs, like any other ailment: Loc.
Horn. 39. This view is also found in the works of later medical writers, such as Diodes of Carystus:
fr. 183a, 54 [ed. van der Eijk]; Herophilus: Τ 211, 239 [ed. von Staden]. For the similar views of
Celsus, Rufus of Ephesus, Galen, and Caelius Aurelianus cf. Stok (1996), 2320 sqq.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
450 Ido Israelowich

Greek medical writings divides mad

μανία, and μελαγχολία.27 This v
was accepted in the Roman worl
of Cornelius Celsus, the encyclop
De Medicina are still extant, reve
regarding mental health were also
sicians and who aimed their works
alone. Pliny the Elder, the Latin au
Naturalis, likewise demonstrates th
terminology, as well as Greek phy
Interestingly, although Celsus was
were violent and those whose ma
interest was purely medical and
of such actions.31
The relevance of physicians in ca
In fact, the first appearance of a p
which he composed during the last
a mental illness.32 His protagonist
situation in such a convincing fash
Menaecmus Sosicles is identified as
by the colour of his eyes and face
The physician's first words affir
esse illi morbi dixeras?35 The old m
of the patient is that the doctor ha
heal him. Thus, it is the physician
should offer the means for curing
of diagnosis, which follows the tea

In fact, the term μανία and it cognates

state of affairs, while φρενίτις and με
sologies of various Hippocratic authors.
be diagnosed by the patient's convulsio
explained that those suffering from ph
ment (μανία), thus making μανία a sym
For the introduction of Greek medicin
Cels. De Med. 3.18.3. For the prevalenc
(1994).
Hahn (1991).
Cels. De Med. 3.18.4. For the practice of restraining madmen see Quint. Dec. 295.
Stok (1996), 2291. The relevance of Plautus in the present context, and despite his belonging to an
earlier date, is that his works were known, read, and performed under the Principate.
Plaut. Men. 872-5.

Plaut. Men. 829-30; for these symptoms cf. Capt. 594-6.

Plaut. Men. 889.
Plaut. Men. 892—4.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 Physicians as Figures of Authority in the Roman Courts 451

Menaechmus' perception of reality, and then reviews the patient's digestive system and
his sleeping habits. Having diagnosed Manaechmus as insane, the doctor then decides
to continue treating him at his surgery by making him drink hellebore for twenty days.37
Having analyzed the questions of the physician, Baumach was able to detect distinc
tive traces of Greek medical ideas in them and concludes that this scene indicates the
presence of Greek medical ideas among Plautus' prospective viewers.38 Such an under
standing of insane behaviour as being caused by mental illness is also found in the late
antique Scriptores Historiae Augustae biography of Hadrian, whose date of composi
tion, sources, and authorship have for long been at the centre of scholarly debates.39
The author recounts that Hadrian was placed in grave danger while walking in a garden
near Tarragona. A household slave rushed at him madly with a drawn sword (servo in se
hospitiis cum gladio furiosius inruente).40 Hadrian was able to arrest his attacker and then
deliver him to his servants. Afterwards, having learnt that the man was mad, Hadrian is
reported to have handed him over to the physicians for treatment rather than trying him
as a criminal.41 This story, unattested elsewhere, aims to portray Hadrian as a merciful,
educated, and law-abiding ruler. Thus, even if historically unfounded, the testimonial
merit of this episode in the biography of Hadrian relates not to what he actually did,
but rather to the ideal ruler his biographer was trying to depict. Both Plautus and the
biographer of Hadrian thought that madness was a medical category and that it should
be treated by physicians. Together with the works of medical authors, it can be safely
assumed that physicians offered somatic explanations for madness and felt qualified to
treat it. However, as the next sections will demonstrate, despite physicians feeling that
madness came under their jurisdiction, they were not called upon to identify madness
within the Roman courts. The need to supply a diagnosis was filled not by physicians,
but by jurists and the general public itself.42

IV. Reference to Madmen in Roman Legal Literature

Reference to madmen is frequent in at least two highly relevant corpora of evidence. The
first is Ciceco's forensic speeches. The second is collections of the controversiae and

Plaut. Men. 950.

Baumbach (1983), 100.

Bibliography on the SHA is vast. See, for example: Barnes (1978); Baynes (1926); Dessau (1889);
Syme (1968); Syme(1971).
SHA Vìi. Hadr. 12.5.5. The relevance of Vìi. Hadr. in a discussion of Roman law during the High
empire is not self-evident since it was composed in a later period and is likely to reflect (at least in
some degree) a different legal reality. For the sources to this vita see Barnes (1978).
ubi furiosum esse constitit, medicis curandum dedit in nullo omnino commotus, SHA Vìi. Hadr.
12.5.5.

Though this could be seen as a result of the 'remedy-based' nature of the Roman law, as it devel
oped under the formulary system of procedure, both witnesses (testes) and corroborating evidence
(testimonia) were often required, Dig. 22.5.1.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
452 Ido Israelowich

suasoriae. In the courts, Cicero habit

figures as furiosi43 However, in non
the object of his scorn from legal
Cicero opened his first speech again
is a madman: quo usque tandem ab
juror iste tuus nos eludei?44 Cicero
the senate's lenience in merely avoid
counter attack: nos autem fortes vir
ac tela vitamus.45 Clearly, it was no
circumstances for Catiline's deeds. R
ous charges. Cicero was, of course, a
Moreover, in the very different con
a distinction between furor, which
a distinction he does not make in an
reasoning that Cicero ascribed to Ca
previous night at the home of M. La
scelerisque socios,48 Indeed, Cicero s
for extenuating circumstances in
suggests that he expected his audi
Thus, after an accusation that Catili
Republic, Cicero accounted for this
Potestne tibi haec lux, Catilina, au
horum neminem qui nesciat te pr
stetisse in comitio cum telo, manum
causa paravisse, sceleri ac furori tu
tunam populi Romani obstitisse?49 L
but in a manner which implies the
enim is es, Catilina, ut te aut pudor
revocarit.50 It appears that casting
standing habit of Cicero. On his fir
Roscius, the young Cicero referred
Cicero then explained Fimbria's fero

For an analysis of Cicero's use of aggre

Cic. in Cat. 1.1.
Cic. in Cat. 1.2.

Cic. de Inv. 2.148; Tusc. Disp. 3.11; de Rep. 3.45.

Cic. Tusc. Disp. 3.12-14; the context of this statement is, of course, the Stoic notion of the soul.
Cic. in Cat. 1.8.
Cic. in Cat. 1.15.
Cic. in Cat. 1.22.

Hominem longe audacissimum...insanissimum; Cic. pro Rose. 33. Fimbria, who died in 85 BCE
became a byword for audacia in the works of later historians, cf. Wirszubski (1961); Dyck (2010),
ad loc.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 Physicians as Figures of Authority in the Roman Courts 453

furiosus). This explanation is all but extenuating.52 Furthermore, unlike a distinction

drawn in his much later Tusculan Disputations, Cicero used the terms amens and furor
as synonyms in his successful defense of Sextus Roscius.53 Thus, on the evidence of
Cicero's forensic speeches it becomes clear that furor, amens, and insanus were not
necessarily used as medical terms in Roman courts. Nor did they have extenuating con
notations. Rather, they were used to describe ferocious, bold, and criminal behaviour.
Unlike the forensic speeches of Cicero, both Seneca the Elder and the Minor Dec
lamations attributed to Quintilian acknowledged madness as a distinctive legal status
rather than merely using it as a derogatory adjective. Seneca, for example, was aware
that the praetor never granted a guardian on the grounds that a father is unfair or unlov
ing but only in cases of madness (quia furiosus).54 Thus, furiosus was a distinguished
enough state of affairs for it to be recognized as such by the legal system. Similarly,
a furiosus appears several times in Quintilian's Minor Declamations. The first case to
discuss the acts of a mad person concerned a father of three children. He killed two of
them due to madness, and, after being cured by the third, disowned him (qui tres filios
habebat duos per furorem occidit. A tertio sanatus abdicit eum).55 The declamation,
which aims to account for the father's disowning his sole surviving child, describes
the father as conscious of his fragile mind and fearful of its instability (.. .timeo.. .de
tarn fragile ac tarn mutabili mente). In consequence, the father explains, he must send
his son away, because he fears for his safety in case madness will strike him again (ne
incideret in meum furorem). In addition, the father asks to send his son away because
the son is a constant reminder of the ferocious acts he himself had committed. Hence,
while the father admits the killing of his two sons, he claims to have been unaware of
his actions, being mad. Having regained his consciousness, painful bereavement was
forced upon him. The notion of madness which emerges from this declamation is one
which is not permanent and which deprives the mad person of his morals and grip of
reality. The mad can commit horrendous deeds and remain unaware of their implications
in the present or of their memory in future.
Another of Quintilian's declamations offers further insight into his use of the notion
of madness. The controversia is one about a father who followed his loose-living son in
public, weeping. He was accused of dementia (flens pater per publicum filium luxuriosum
sequebatur. Dementiae reus est).56 This declamation is prefaced by a relatively long
discussion (sermo) which analyses the leading principles of this type of declamation.
The key to such a declamation, Quintilian explains, is the question 'what is dementia?'
and then following this, 'is this dementia?' According to Quintilian this question has
been addressed many times before and one can recall the attempts of Quintilian and

For the meaning of furiosus in Cicero's forensic speeches see Dyck (2010), 103; Taldone (1993).
Cic. pro Rose. 41, 62, 66.
Ego [semper] scio nulli a praetore curatorem dad quia inicus pater sit aut impius, sed quia furiosus;
Sen. Cont. 2.3.13.

Quint. Dec. 256.

Quint. Dec. 316.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 454 Ido Israelowich

Seneca to answer it.57 They both d

health {dementia.. .res est sanitat
the case of the father following h
be diagnosed as suffering from d
whether it was also possible to det
similar question regarding the nat
context was that according to the
won a pardon from both his fathe
concerned a rapist who secured the
of his own father, and therefore a
neither case was the authority of
consistent with that used by phys
In his Institutio Oratoria Quint
in general.60 He explained that suc
either been done or was about to b
that Quintilian understood dement
Quintilian of the Institutio Orato
diagnosis of madness was in any w
expertise of a physician might be
literature it can be ascertained tha
ally, as can be seen in the case of C
explicit legal status, as can be see
that the court and the readers of these works could discern when references to mad
ness were made explicitly and when they were made metaphorically without any need
for assistance. Furthermore, in cases where actual madness was suggested, there is no
evidence of any difficulties in diagnosing it or in questioning its existence. However,
before examining the evidence which affirms that the courts were in the habit of refer
ring to the expertise of physicians on certain occasions, it must first be established that
the Roman institutions themselves recognized medicine as a distinctive profession and
the motives behind this.

V. The Role of Physicians in the Roman State

Although physicians were not consulted in cases of madness in the Roman courts, and
despite their claim that madness came under their professional jurisdiction, it is note
worthy that they did form a distinctive professional group in the eyes of the Roman

57 Sen. Cont. 2.4.9; Quint. 7.3.19; 7.4.24—6. For the relations between the notions offuror and dementia
see: Solazzi (1924—5).
58 Sen. Cont. 2.4.9.

59 Quint. Dec. 349.

60 Quint. 7.4.29-31.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 Physicians as Figures of Authority in the Roman Courts 455

legislator.61 Though it took almost two centuries from the initial arrival of professional
physicians from the Greek world in Rome until they were legally treated as a professional
collective, this certainly was the case by the time of the decline of the Republic and the
establishment of the Principate.62 This new form of government needed physicians for
two reasons. The first was the reorganization of the Roman army.63 No longer based on
non-professional Roman citizens who were legally obliged to serve, the Roman imperial
army was a professional fighting force. Legionaries joined for a period of twenty years
which could have been further extended. In addition, the army was now permanently
deployed in conflict zones and along the borders of the empire. Thus, the military units
had to be far more self-sufficient than previously. In the realm of health care it meant
the foundation of a medical corps which required a steady supply of physicians joining
the army and, therefore, professional physicians with Roman citizenship. This need
must have lain behind two edicts of Caesar and Augustus which bestowed Roman citi
zenship and other privileges on physicians who migrated to Rome.64 A second pretext
for these edicts related more generally to the administration of the Roman Empire. The
Roman state preferred that the provinces were organized on the basis of civic centres
which, in turn, were governed by local aristocracies. Physicians soon became part of
the upper tier in the cities of the Greek East65 The privileges they enjoyed were part of
a more general policy of the Roman imperial government to support civic aristocracies.
In the Greek East, where paideia was effectively translated into political power, and
in a cultural environment which included the discipline of medicine as an integral part
of the making of a pepaideumenos, the upper tier of physicians enjoyed privileges.66
Physicians were therefore a professional group acknowledged by the Roman state. It is
now necessary to examine whether this status meant they were figures of authority in
the Roman courts of the Principate.

VI. Positive Evidence

It is interesting that physicians were not required in Roman courts where a diagnosis
of madness was needed because they were called upon in other circumstances. There is
considerable evidence that physicians (mainly those who acted as public physicians or
archiatroi) were required to examine cases of suspicious death or acts of violence on
behalf of the Roman courts. Moreover, the Roman legislator sanctioned another profes
sional group closely associated with the medical profession - namely midwives - to settle

For a general study of the legal status of physicians during the high Empire see: Below (1953); André
(1987); Nutton (1971); Nutton (1977).
Dio 53.30.3; Suet. Caes. 42.3; Suet. Aug. 59.
Davies (1970).
Jackson (1988), chap. 5; Davies (1970).
Nutton (1971).
For the translation of paideia into political power see Schmitz (1997).

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
456 Ido Israelowich

disagreements involving disputed p

of the papyri it can be ascertain
were requested by the governing in
each instance the expert was to fo
the authorities. A copy of this rep
authority instigated the compilatio
The evidence concerning the fore
in four categories: (i) a request of
order from an official to his assist
report; (iii) a prosphonesis i. e. a
as evidence in a trial.70 The heavy
of the forensic role of physicians
representing the reality of the Ro
'Graeco-Roman Egypt'.71 Naphtali
Ptolemaic monarchy and the comin
Egypt in the early years of Roman
army, taxation, liturgy, land tenu
tern or practice'. He concludes tha
elements in the organization of R
more it resembles other eastern pr
Down until the mid-third centur
were usually addressed by private
tury, the officer to whom requests
a medical examination or investiga
official will bring with him a phys
(247 CE), which is a petition addre
and a demosios iatros be sent to ve
that a copy of the report will be f
petitioner's condition is not reveal
explicit that a physician is request
An example is P. Oxy 475 ( 182 CE)
to send a hyperetes to examine the

See below.

Raj (2006), 110-11. On the description of violence in the papyri see: Bryen (2008).
Cf. P. Oxy. 896; 3195; 4441; Nielsen (2000); Raj (2006), 110.
Amundsen and Ferngren (1978), 343.
For the use of papyri in the broader study of the social history of litigation in Egypt see: Kelly (2011).
Lewis (1970), 5 sqq.
Cf. P. Fior. 59, which is a petition which Ulrich Wilcken has restored (lines 8-10) to read that it is
a request of a hyperetes and a demosios iatros; Wilcken (1906).
For the general role of petitions in the Roman legal system during the High empire see: Kelly (2011),
chap. 3.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 Physicians as Figures of Authority in the Roman Courts 457

a window of the petitioner's house while trying to have a better view of some dancing
girls. Although the petition did not ask for a physician, the strategos ordered a demosios
iatros to accompany his hyparetes in making the investigation and to submit a written
report, (iii) Some petitions asked for an inquiry to be undertaken without mentioning
the hyperetes. All these requests concerned cases of death or injury caused by accident
or violence. It also appears that in cases of violent or suspicious death an investigation
was required before the body could be claimed for burial.75 The motives for looking
into suspicious deaths are clear. For example, P. Oxy 1556 was written by a person who
intended to sue his aggressor. Another example, that of P. Oslo 95, involves an injury
of a slave girl who had been beaten. The owner of the slave must have planned to sue
for damages caused to her, as she was his property.
However, most relevant documents belong to the prosphonesis category. These are
medical reports written by a physician, the hyperetes or a scribe. Each was signed by
the actual investigating physician's hand. Thus, P. Oxy 51 (173 CE) was written by a
demosios iatros who had been instructed to inspect a body of a person who had been
found hanged and then dispatch his findings to the strategos. A much later document,
P. Rein. 92 (392 CE), is a medical report submitted to the logistes by a public physi
cian who had been ordered by the police to examine the body of a village official and
then submit a written report. P. Oslo 95 (96 CE) is an investigation into an injured
slave girl. BGU 647 (130 CE) is a prosphonesis of a physician who was summoned to
investigate an injured person. His report depicts an injury on the left temple containing
small splinters of stone. PSI 455 (178 CE) is the prosphonesis of a public physician
who was instructed to inspect an injured person's condition. His report discloses that
he was in the presence of the hyperetes while conducting his visit and that the person
he examined sustained three wounds to his head and a contusion on his left shoulder

blade and shoulder. P. Oslo 96 (272 CE) is yet another fragmentary prosphonesis of a
public physician who inspected an individual who sustained head injuries due to a fall.
The role of the public physician in Egypt is relatively well-documented which
might explain the attention this institution has received from modern scholars.76 Public
activities of physicians involved all the tasks they performed as a result of a contract
(of some description) with public institutions - such as civic, communal etc., - even
if they lacked the title of demosioi iatroi. Under Roman rule, the first attestation of the
title of demosios iatros is in a papyrus which can be dated back to 173 CE.77 This title
was used extensively afterwards, at least in Middle Egypt,78 until it was changed into
that of the archiatros towards the end of the fourth century CE.79 The reason for the
adaptation of the title of public physicians during the reign of Marcus Aurelius has been

E. g. P. Oxy 4751 cf. P. Oxy 476 where embalmers were requested to investigate a death.
Raj (2006), 102.
P. Oxy 51.
There is no evidence from this period which relates to public physicians from the Delta nor from
Upper Egypt.
Nutton (1981), 22.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
458 Ido Israelowich

convincingly explained by Boswinke

limited the number of physicians
who merited this privilege now bor
A second category of evidence rele
in the Roman legal system includes
as an arbitrator of a legal dispute
pertinent because Roman jurists th
the same category as male physician
is indicative of the inclination of th
practitioners in the courts. In fact,
man court on at least two instance
which concerned a husband who sus
denied it. The remedy provided by t
would be for the house of an extrem
wife will go, and that three skilled
urban praetor to examine her.82 In
can be summoned to appear before t
If she replies positively, the praetor
if the wife is pregnant neither the
but they must all be summoned by
pregnant after her husband's death,
or their procurators within one mon
up to five freeborn women to exami
they could not touch the woman's st
noted that the delivery should take
by the praetor. The woman had to in
thirty days before the child was du
Similar notification was required wh
to five freeborn women as well as t
the birth included those for whom it
those who would get the whole or pa
Thus, in two of the most commonp
and those which concerned inheritan
the professional prowess of medical

Dig. 27.1.6.1-11; Boswinkel (1956), 18

Dig. 50.13.1.2 (Ulpian); CJ 6.43.3.1 (Joh
Dig. 25.4.1.
Dig. 25.4.1.2.
Dig. 25.4.1.4
Et notandum, quod non permittitur mar
adhibendae sunt, Dig. 25.4.1.5.
Dig. 25.4.1.12.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 Physicians as Figures of Authority in the Roman Courts 459

Egyptian papyri and the Digest, prove both that the Roman courts were expected to use
physicians as figures of authority throughout the Roman Empire and that this demand
was actually followed. The rescripts which we find in the Digest had a force of law in
all Roman courts.87 The papyri indicate how widespread was the habit of relying on the
authority of physicians in cases of an act of violence or suspicious death.

VII. Conclusion: Why was Medical Authority not Needed in Cases Of Madness?

This article set out to examine the role of physicians as figures of authority in the Ro
man courts during the Principate and account for the attitude of the Roman legal system
towards madness and the mad. By analyzing (i) the legal implications of madness and
by noting (ii) the far-reaching attempts of Graeco-Roman physicians to explain mad
ness as an illness using somatic terms; by examining (iii) the role of physicians in the
Roman state during the Principate, and by a close scrutiny of (iv) the cases in which the
Roman juridical system did rely on physicians as figures of authority it is now time to
expound on why medical authority was not needed for diagnosing madness.
Since madness impaired one's right to inherit; to manage property; to have pos
session; and to be indicted with delict - some of the most commonplace issues which
concerned the Roman courts - and since Roman jurists acknowledged the danger of
feigning madness for avoiding legal liability, the matter of diagnosis must have been
pertinent in forensic disputes. The decision not to appeal to the authority of physicians,
as was done in cases of violence and in cases of disputed paternity or maternity, was not
instigated by the physicians themselves. Physicians offered a consistent explanation of
mental illnesses, which they often associated with fever and epilepsy.88 Thus, the choice
of the Roman courts to turn to physicians in cases of violence and in cases of disputed
paternity or maternity and not to do it in cases of madness was a choice of the courts,
not of physicians. Since it was the task of the courts to settle disputes in a conclusive
manner their disinclination to rely on physicians for diagnosing madness indicates that
either such a diagnosis was not controversial or that physicians were seen as unable to
provide such a diagnosis. Moreover since the medical profession expressed a unified
voice concerning the nature of mental illness, the choice of the Roman legal system

Cf. Honoré (1994).

The lack of appeal to physicians for diagnosing madness could not have been a result of the inner
disputes within the field of medicine itself, since, as has been demonstrated above, most, if not all,
physicians explained madness as a medical condition, which is either the result or a complication of
fever. In addition, as in the case of epilepsy, most physicians accounted for madness by appealing
to the humoral system: Epilepsy and fever: Cf. Hippoc. Loc. Horn. 33; Prog. 4, 24. Madness also
could be caused by an excess of blood in a woman's breasts: Hippoc. Aph. 5.40, or by a swelling
of a wound: Aph. 5.65, Epid. .2.5.2. A mental illness (φρενΐτις) could be the result of too warm a
body: Morb. 1.30, Loc. Horn. 33, or by a humoral imbalance: Vict. 35. In turn, madness can be cured
by drugs, like any other ailment: Loc. Horn. 39.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 460 Ido Israelowich

not to turn to physicians for diagno

physicians or medical schools. Rathe
The discrepancy between the exp
nature and ability to cure mental
tem to accept this authority can be
and furiosus in his forensic speeche
works. For while Cicero, in his ex
third book of his Tusculan Disputati
forensic speeches disclose no such no
above, Cicero habitually used the no
'unrestrained', and 'violent', all of
cumstances. Thus, when speaking to
formed the potential clients of phy
fied to diagnose madness. Likewise
aimed at students of rhetoric and
a legal state of affairs, assumed tha
applicable, would be undisputed.
Thus, the answer to the question
consulted by the Roman courts in
esteemed in cases of suspicious death
nity or paternity is that madness wa
Unlike in cases of injuries and those
the population of the Roman world w
diagnosing madness. Not surprisingly
suffering from epilepsy often spurn
In consequence the attempts of phy
unlike their attempts in the fields o
madness under the Principate was n

Bibliography

André, J. (1987): Étre médecin à Rome (Paris).

Amundsen, D.W., and Ferngern, G.B. (1978): 'The forensic role of physicians in Ptolemaic and Roman
Egypt', BHM52: 336-53.

89 Cels. 2.23.7; Plin. ΗΝ 28.4; Gal. De simplicium medicamentorum temperamentis ac facultatibus,

11.18 = Gal. 12, 342 K. Some physicians actually approved of consulting magicians and thereby
making use of their incantations: alii vero etiam ligamenta probaverunt, et magos adhibendos, atque
eorum incantationes (Caelius Aurelianus, Morb. Chron. 1.4). In addition, one should bear in mind
that any diagnosis of epilepsy (or various other illnesses) mentioned in a classical source should not
be automatically understood by a modern reader as either beyond dispute or even as referring to the
same illness contemporary science recognizes as epilepsy.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 Physicians as Figures of Authority in the Roman Courts 461

Baumbach, L. (1983): 'Quacks then as Now? An Examination of Medical Practice, Theory and Super
stition in Plautus', Menaechmi', A.Clas 26: 99-104.
Barnes, T. D. (1978): The Sources of the Historia Augusta (Bruxelles).
Baynes, Ν. H. (1926): The Historia Augusta; Its Date and purpose (Ann Arbor).
Below, K.H.O. (1953): DerArzt im rómischen Recht (Munich).
Booth, J. (ed. 2007): Cicero on the Attack: Invective and Subversion in the Orations and Beyond (Swansea).
Bostman, P. (ed. 2009): Mania: Madness in the Graeo-Roman world (Pretoria).
Boswinkel, E. (1956): 'La médecins dans les papyrus grecs', Eos 48: 181-90.
Bryen, A.Z. (2008): 'Visibility and violence in petitions from Roman Egypt', GRBS 48: 181-200.
Cohn-Haft, L. (1956): The public physicians of ancient Greece (Northampton).
Davies, R.W. (1970): 'The Roman military medical service', Saalburg Jahrbuch 84-104.
Dean-Jones, L. (1994): Women's Bodies in Ancient Greek Science (Oxford).
Dessau, H. (1889): 'Ober Zeit und Personlichkeit der SHA', Hermes 24: 337-392.
Diliberto, Ο. (1984): Studi sulle origini della "cura furiosi" (Napoli).
Dyck, R. (2010): Cicero: Pro Sexto Roscio (Cambridge).
Flemming, R. (2002): 'The pathology of pregnancy in Galen's commentaries on the Hippocratic Epide
mics' , in V. Nutton (ed.), The Unknown Galen (Bulletin of the Institute of Classical Studies, Sup
plement 77), 101-112.
Frier, B. (1985): The Rise of the Roman Jurists: Studies in Cicero's Pro Caecina (Princeton).
Frier, B.W., and McGinn, H.F. (2004): A Casebook in Roman Family Law (Oxford).
Gourevitch. D. (1984): Le mal d'etre femme: la femme et la médecine dans la Rome antique (Paris).
Hahn, J. (1991): 'Plinius und die griechischen Arzte in Rom', Sudhoffs Archiv 75: 209-39.
Hanson, A.E. (1994): Ά division of labor: roles for men in Greek and Roman births', Thamyris 1: 157-202.
Honoré, Τ. (1994): Emperors and Lawyers (Oxford).
Jackson, R. (1988): Doctors and Diseases in the Roman Empire (London).
Jolowicz, H.F., and Nicholas, B. (1972): Historical Introduction to the Study of Roman Law (Cambridge).
Kaser, M. (1939): 'Ruhende und verdrangende Hausgewalt im àlteren romischen Recht', ZSS 59: 31-51.
Kelly, B. (2011): Petitions, Litigation, and Social Control in Roman Egypt (Oxford).
Knibbe, D. (1981): 'Quandocumque quis trium virum rei publicae constituendae ...: Ein neuerText aus
Ephesos', ZPE44: 1-10.
Langslow, D.R. (1994) 'Celsus and the makings of Latin medical terminology', in: G. Sabbah and P.
Mudry, (eds.): La Médecine de Celse: Aspects Historiques, Scientifiques et Littéraires 13: 297-318.
Lewis, Ν. (1970): 'Graeco-Roman Egypt: fact or fiction', Proceedings of the Twelfth International Con
gress of Papyrology (Toronto).
Lintott, A. (1993): Imperium Romanum (London).
Marasco, G. 91995): 'L'introduction de la medicine greque à Rome: une dissension politique et idéolo
gique;, in: van derEijk, Ph., Horstmanshoff, H.F.J, and Schrijvers, PH. (eds. 1995): Ancient Medicine
in its Socio-Cultural Context vols. i-ii. (Amsterdam), 35—48.
McCrum, M., and Woodhead, A.G. (1961): Select Documents of the Principates of the Flavian Emperors
Including the Year of Revolution, A.D. 68-96 (Cambridge).
Nielsen, B. (2000): Ά catalogue of duplicate papyri', ZPE 129: 187-214.
Nutton, V. (1971): 'Two Notes on Immunities: Digest 27, 1, 6, 10', JRS 61: 52-63.
Nutton, V. (1977): 'Archiatri and the medical profession', PBSR 32: 191-226.
Nutton, V. (1981): 'Continuity or rediscovery? The city physician in classical antiquity and Medieval
Italy', in: A.W. Russell (ed.) The Town and State Physician in Europe from the Middle Ages to the
Enlightenment (Wolfenbiitteler Forschungen 17), 9-46.
Nutton, V. (1986): 'The Perils of Patriotism: Pliny and Roman medicine', in: R.K. French and F. Greenway
(eds.) Science in the Early Roman Empire: Pliny the Elder, his Sources and Influences (London),
30-58.

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms
 462 Ido Israelowich

Nutton, V. (2004): Ancient Medicine (Lon

Pigeaud, J. (1987): Folie et cures de lafo
(Paris).
Pigeaud, J. (1989): La maladie de l'àme (Paris).
Pohl, R. (1905): De graecorum medicis publicis (Berlin).
Porter, R. (1985): 'The patient's view: doing medical history from below', Theory and Society 14: 175-98.
Raj, M.H. (2006): Médecins et malades de TEgypte romaine: étude socio-légale de la profession médicale
et de ses praticiens du Ier au IVe siècle ap. J.-C. (Leiden).
Schmitz, T. (1997): Bildung und Macht: zur sozialen und politischen Funktion der zweiten Sophistik in
der griechischen Welt der Kaiserzeit (Munich).
Solazzi, S. (1924—5): 'Furor vel dementia', Mouseion 2: 10—40.
Stok, F. (1996): 'Follia e malattie mentali nella medicina dell'età romana', ANRW 37.3: 2282-2410.
Syme, R. (1968): Ammianus and the Historia Augusta (Oxford).
Syme, R. (1971): Emperors and Biography (Oxford).
Taldone, A. (1993): 'Su insania e furor in Cicerone', Bollettino di Studi Latini 23: 3-19.
Watson, A. (1967): The Law of Persons in the Later Roman Republic (Oxford).
Wilken, U. (1906): 'Papyrus Urkunden', Archiv fiir Papyrusfurschung 3: 536.
Wirszubski, C. (1961): 'Audaces: a study in political phraseology', JRS 51: 12-22.
Youtie, H. (1964) Ά reconsideration of P. Oxy. 1.40', in: H. Braunert (ed.): Studien zur Papyrologie und
antiken Wirtschaftgeschichte (Bonn), 20-9.
Zulueta, F. de (1946): The Institutes ofGaius vol. ii (Oxford).

Department of Classics Ido Israelowich

Tel Aviv University
P.O. Box 39040, Tel Aviv 6997801, Israel
[email protected]

This content downloaded from

158.195.55.243 on Mon, 07 Feb 2022 13:22:13 UTC
All use subject to https://about.jstor.org/terms