„Quod illicite (…) exactum est”… And what if the duty was wrongly paid? Accountability of tax collectors in classical Roman Law 1

Reisenden Eigenschaften transportierten verbergen, die Zollgrenze Die Steuereintreiber Befugnisse und verlangten übermäßige rechtsgrundlose Abgaben. In den Quellen findet man zahlreiche Belege für solche Praktiken. Ein Steuereintreiber, der einen unangemessenen oder übermäßigen Tribut verlangte, lief Gefahr, mindestens das Doppelte zahlen zu müssen. Die kaiserlichen Vorschriften in Hinsicht eindeutig. Was passierte aber mit verfallenen Waren, wenn der Prozess zu lange dauerte?

certain roads or crossing certain bridges. Each person crossing such a duty collection point (statio), whether they were engaged on business or a regular traveler, was obliged to declare all the commodities they were carrying (professio), for all goods were, as a general rule, subject to portorium 3 . While there were certain exemptions, both personal and subject-based, this did not mean that a person crossing a collection point could skip any item in their declaration. Were there any instances of anyone ever trying to evade paying their duty? This is a purely rhetorical question. Sources offer numerous evidence for such practices. They involved, in particular, travelers either trying to conceal the real nature of the goods they were carrying or trying to cross the border without going through the duty collection point 4 . Interestingly, plenty of evidence of such practices comes from rhetoric works, particularly Declamationes minores by pseudo-Quintilian. The fact that such conduct could be used as training material to practice rhetoric shows that these practices were common, and that so was the knowledge of them. And by training material, we do not mean pure rhetorical figures, presented to trainees, but rather actual stories based on actual events. Many mentions of such practices can also be found in Talmudic treatises 5 .
Collectors of public duties managing the collection of portorium (publicani) were, obviously, authorized to verify the correctness of the professio. The tools they could use to this end included the right to conduct both a search of the luggage or cargo, and an intimate search of persons crossing the customs border 6 . The latter can be inferred from pseudo-Quintilian's account, namely his statement that matrons enjoyed an exemption from the border control 7 . While the issue of the existence or non-existence of a formal privilege enjoyed by the aforesaid group of persons is disputable, the very right to conduct an intimate search is not. Furthermore, if we believe what Plautus mentioned in his comedy Trinummus to be true, the right to conduct a search also covered personal documents of travelers, including any letters they may have been carrying 8 . While this has only been confirmed for the republican era, if it was actually effective, it most likely remained in force in the imperial period.
Papyrus Oxyrhynchus 1, 36, which most likely refers to a collection point in Memphis, provides information on publicans having the right to stop a ship in order to conduct a search. This account not only describes the said right, but is also interesting because it specifies the consequences of a wrong decision to stop a ship, i.e. the consequences of failure to identify contraband. It should be pointed out that the document suggests that in the event the search does not reveal any transgressions on the part of a traveler, the collector shall be obliged to cover all costs related to stopping the ship. It is not clear, however, whether this regulation was in force all over the state 9 .
While there may have existed some lists of goods to which certain fixed duties applied, as a general rule, at least in collection points situated on the borders of duty districts, but also internally, the levy was calculated ad valorem. Even if it were an overstatement to say that ancient sources offer numerous mentions of abuse on the part of the publicans, or tax collectors, it is beyond any doubt that their public image was very bad. Examples of highly critical perception of the collectors can be found in the works of Cicero 10 ; like-  MA, 2013, p. 199. 9 Pap. Oxy, 1,36, col. II, verses 6-15; on this papyrus, e.g. S.J. De L a e t: Portorium…, p. 321, and most recently J.L. Z a m o r a M a n z a n o: Algunos aspectos sobre el régimen fiscal aduanero en el derecho romano: reglamentación jurìdica del 'portorium', control de mercancìas y comiso por fraude fiscal. Madrid 2009, pp. 79-81. 10 See e.g. Cic., Ad Q. fr., 1,1,11,33: Illa causa publicanorum quantam acerbitatem afferat sociis, intelleximus ex civibus, qui nuper in portoriis Italiae tollendis non tam de portorio quam de nonnullis iniuriis portitorum querebantur; quare non ignoro, quid sociis accidat in ultimis terris, cum audierim in Italia querelas civium (How much bitterness the tax farmer question wise, tax collectors are frequently mentioned in the Gospels, where they are compared to sinners and prostitutes. Bogumił Brzeziński goes so far as to say they had a "paradigmatically negative image" 11 .
Although the problem of abuse in the area of tax collection was acknowledged, attempts at combating it were rather ineffective. In fact, the first emperor to have taken successful measures in this regard was Nero. The tactic he adopted was to make the rules and principles governing the collection of tax available to the public by posting them in every statio 12 , which proved successful, and sources concerning the periods that followed contain hardly any mentions of abuse. In addition to that, emperors Marcus Aurelius and Commodus ruled in a rescript that while tax collectors are not obliged to instruct travelers on how to make a declaration, they must not mislead them 13 . The fact that there were no mentions of abuse does not mean that there were no abuses, but the scale must have been small enough not to trigger public outcry and protest.
In the event that a tax collector uncovered an undeclared item, the item was subject to forfeiture (commissum). This sanction was confirmed by numerous legal 14 and non-legal sources 15 , as well as by the aforementioned Papyrus Oxyrhynchus 1, 36. This was a sanction of a general character that could be creates in the provinces has been illustrated for us by the attitude of some of our countrymen over the abolition of Italian customs. It was not the duty they complained of so much as certain maltreatments at the hands of customs officers. toughened up under certain circumstances. This was particularly the case when a collector discovered the smuggling of goods or items whose carriage was forbidden, such as iron ores, iron, cereal, or salt. Whenever this was the case, forfeiture was imposed not only on the goods, but also on the ship that was used to transport these goods 16 .
There is every reason to believe that this rule was obviously applicable to all means of transport. Additionally, the smuggler could be sentenced to death 17 . However, Paulus, who provides this information, specifies: if something of the sort is done, in the absence of the owner, by the master or steersman or the pilot or any of the sailors, the latter are liable to capital punishment, and the goods are confiscated, but the ship is returned to its owner 18 . Interestingly, nothing prevents the owner of the confiscated property from repurchasing it 19 .
Needless to say, the law also provided for accountability on the part of the tax collector. Naturally, when he received something that was not due, he was obliged to return it 20 . However, if he abused the law and extorted the payment 18 D. 39,4,11,2: Quod si absente domino id a magistro vel gubernatore aut proreta nautave aliquo id factum sit, ipsi quidem capite puniuntur commissis mercibus, navis autem domino restituitur (But if something of the sort is done, in the absence of the owner, by the master or steersman or the pilot or any of the sailors, the latter are liable to capital punishment, and the goods are confiscated, but the ship is returned to its owner); as translated in: of a public revenue that was not due, he was subject to returning double the amount that he collected himself or that his slaves collected. The injured party had one year to bring action to receive this double amount, and if they did not do that, the collector was obliged to return the sum involved 21 . The collector's accountability could also be extended to three times the sum involved if the undue payment had been collected by use of force 22 . Ulpian, who discussed this matter, admits that there was a certain degree of leniency in the treatment of collectors, for common law applicable in the case of manifest theft or robbery of goods provided for a quadruple penalty to be imposed 23 . Ulpian, invoking Pomponius and his views, acknowledges an injured party's right to seek quadruple penalty and stresses that it would be absurd to treat an abusive publican with greater leniency than others would be treated. However, if we acknowledge that a tax collector could be absolved from any and all obligation if they returned what was collected by use of force (presumably the returning ought to precede bringing of an action or issuance of a judgment), favor publicani is rather prominent, even if the term itself is not used 24 . One has to toninus stated in a rescript that if an error on the part of the person making payment leads to a tax farmer receiving something that is not due, the latter is obligated to return it); as translated in: The Digest of Justinian. Vol. 3. Ed. A. Wa t s o n…, p. 408. 21 D. 39,4,1,pr.: Quod illicite publice privatimque exactum est, cum altero tanto passis iniuriam exsolvitur. per vim vero extortum cum poena tripli restituitur: amplius extra ordinem plectuntur: alterum enim utilitas privatorum, alterum vigor publicae disciplinae postulat (The praetor says: "If a tax farmer or his familia takes anything by force in the name of the public revenue and it is not returned, I will grant a judicium against them for double the sum involved, or if the action is brought after the passage of a year, for the sum involved. Similarly, where loss is said to have been wrongfully inflicted or theft is said to have occurred, I shall grant a judicium. If the persons whom the matter in hand will concern are not brought before me, I shall grant a judicium without possibility of noxal surrender against the owners"); as translated in: The Digest of Justinian. Vol. 3. Ed. A. Wa t s o n…, p. 403; see also D. 39,4,9,5. 22 D. 39,4,9,5: Quod illicite publice privatimque exactum est, cum altero tanto passis iniuriam exsolvitur. Per vim vero extortum cum poena tripli restituitur: amplius extra ordinem plectuntur: alterum enim utilitas privatorum, alterum vigor publicae disciplinae postulat (Any illegal exaction, private or public, is paid back to the victims with as much again; but where the extortion was made by force, the restitution is threefold; those responsible are in addition liable to extraordinary criminal punishment. The one measure is demanded by the interests of private individuals, the other by the need for strong public discipline); as translated in: wonder why this is so. The easiest way to answer any questions in this regard is by quoting some more sentences from Cicero's letters to his brother Quintus. While Cicero acknowledges and condemns abuse on the part of publicans, he at the same time expresses his understanding of how inconvenient and burdensome their role may be. Maintaining a balance between the interests of the taxpayers and those of the tax collectors is an art that requires divine virtues 25 .
The observations made above, both with respect to ways of evading the payment of levy and to measures taken against fraudsters, along with the short (albeit with the potential to create plenty of opportunities for the injured party) list of remedies intended to help the injured party pursue claims for collection of unwarranted payment, elicit a relatively simple and obvious reflection: that it was not we who came up with the idea of wearing ten dresses at once; that the ever-so-popular expression in dubio pro tributario is a lofty postulate that, however, was realized neither in the ancient times nor today, and that the ancient collectors of public levies had a moral advantage over the people in that they did not formulate it or even think about how one could take legal action against tax collectors and seek multiple penalties. It may all sound beautiful in theory, but what if the proceedings drag over time and the forfeited commodity lies idle?
meliorem esse publicanorum causam quam ceterorum effectam opinari (And the tax farmer is given the opportunity of returning that which was taken by force, and if he does so, he is absolved from all obligation and freed from any penal action based on this part of the edict. The question arises, consequently, of whether someone can, if he so wishes, bring an action against a tax farmer on the basis not of this edict, but of the general one relating to robbery of goods, wrongfully inflicted injury, or theft. It is agreed that he can, and Pomponius also writes that this is so, since it is ridiculous to hold that the legal position of tax farmers has been made better than that of other people); as translated in: The Digest of Justinian. Vol. 3. Ed. A. Wa ts o n…, pp. 403-404. 25 Cic., Ad Q. fr., 1,1,11,33: Hic te ita versari, ut et publicanis satisfacias, praesertim publicis male redemptis, et socios perire non sinas, divinae cuiusdam virtutis esse videtur, id est tuae (So to manage that you satisfy the tax farmers, especially when they have made a poor bargain with the Treasury, without letting the provincials go to ruin seems to call for capacity more than human-which is to say, it calls for yours); as translated in: Cic e r o: Letters to Quintus and Brutus…, p. 35. w takich miejscach. Aby uniknąć opłacania portorium, stosowano różne wybiegi: podróżujący albo starali się ukryć właściwą naturę przewożonych produktów, albo usiłowali przewieźć towar, nie deklarując go, albo wreszcie próbowali przekroczyć granicę celną, nie przechodząc przez punkt poboru daniny. Poborcy zaś często nadużywali swoich uprawnień, naliczając daninę nienależną bądź nadmierną. W źródłach można znaleźć liczne dowody takich praktyk. Poborca naliczający daninę nienależną lub nadmierną narażał się na obowiązek zapłaty przynajmniej w podwójnej wysokości. Regulacje cesarskie w tym zakresie są jasne. Co jednak z towarami objętymi przepadkiem, jeśli proces trwa zbyt długo?