Miriam GriffinFootnote ¹ drew attention to the comment of Justus Lipsius: ‘a defendant might have to make such a declaration in cases involving financial penalties, such as extortion and peculation, for when the litis aestimatio [‘assessment of damages’] was made, it would be important to know who the other claimants to the convicted man's assets were, and how encumbered his property was.’Footnote ² No further elucidation, however, has been made since Lipsius. Mommsen failed to record this passage in his Staatsrecht and Strafrecht, and, as far as we know, no monograph on Roman criminal law mentions the passage of Seneca.

The Loeb editor, John Basore,Footnote ³ seems correct when he calls this a unique text, in as much as there is no other direct evidence for such declarations by candidates for office or defendants. It is highly improbable that this is a total invention by Seneca, who was well versed in the law of his time.Footnote ⁴ The questions remain, first, what other indirect evidence can be adduced to support the statement, second, whether other texts may help us to date the introduction of the procedure implied.

To take declarations by candidates first, the Tabula Heracleensis (M. Crawford, Roman Statutes, 2 vols. [London, 1996] [henceforward RS] I, no. 24, 113–15), a collection of regulations belonging to the period reaching back from Julius Caesar's dictatorship perhaps to that of Sulla (RS I, pages 358–62), lists among those disqualified for membership of the local Senate queiue in iure <abiurauit> abiurauerit bonamue copiam iurauit iurauerit; quei <ue> | sponsoribus creditoribusue sueis renuntiauit renuntiauerit se soldum soluere non posse aut cum eis | pactus erit se soldum soluere non posse ‘or who at a pre-trial <has or> shall have sworn to insolvency or shall have sworn bona copia; <or> who has or shall have declared to his guarantors or creditors that he cannot pay in full or has or shall have agreed to a settlement with them that he cannot pay in full’. This shows insolvency as a disqualification. The same provision does not appear in the rules for electing magistrates but is implicit, since only those are eligible for election, who are qualified to be members of the local Senate (lines 135–7). The declarations of insolvency listed, however, are those resulting regularly from the procedure of civil law, not special declarations by candidates for local office, and in any case a declaration of insolvency differs from a declaration of debts which have not yet been called in and which one may have the resources to pay off. The topic is not picked up, to our knowledge, in subsequent municipal legislation. There is no reference to concern for the solvency or debts of candidates for office in what survives of the later charters from Spain. At best, the recently discovered text from the Antonine municipium at Troesmis on the lower DanubeFootnote ⁵ has been emended to show a requirement not to accept as a candidate for local office someone whose family property is inadequate.

A legitimate inference may, none the less, be made from the Table of Heraclea that at the time of its latest element, probably 45 b.c. (RS I, pages 361–2), candidates for office were not required to declare their debts and this can be supported by the complete absence of any mention of such a provision in the surviving writings of Cicero. If we look instead at Augustus’ Principate, on the other hand, the provision may well have been part of his leges de ambitu (Tac. Ann. 15.20.3; Suet. Aug. 34.1, 40.2; Dio Cass. 54.16.1). In particular, we are told that he enacted in 8 b.c. a requirement that candidates for office should make a deposit which would be forfeit if they resorted to bribery (Dio Cass. 55.5.3). A regulation about declaring debts would fit well with this: both would hamper candidates offering electors money that they would not be able to pay.

A declaration of debts by a defendant would have been also helpful, if the man was liable to a financial penalty on conviction. We are best informed about procedure for exacting money in the quaestio de repetundis, thanks in particular to the inscribed fragments of the Gracchan lex de repetundis (RS I, no. 1). Here there is no place for the declaration suggested by Seneca. It is only after conviction but before the estimation of damages (litis aestimatio) that measures are taken to enable the penalty to be enforced—through the provision of guarantors or the seizure of property (lines 56–8). Nor is there any subsequent evidence, epigraphic or literary, for the method of imposing a financial penalty on the condemned. Some idea of the difficulties in extracting penalties from the condemned in Cicero's day may be obtained from a complex (and at some points corrupt) text in a letter of Caelius in late 50 b.c. (Fam. 8.8.1–3).Footnote ⁶ The former praetor C. Claudius Pulcher had been condemned de repetundis and an attempt was being made to exact money from an associate of his, M. Servilius, under the procedure quo ea pecunia peruenerit, introduced to the court by Servilius Glaucia some fifty years earlier,Footnote ⁷ which sought to pursue money deposited with persons other than the defendant in order to defraud the prosecution. According to Caelius, Servilius had, following earlier financial difficulties, become totally insolvent and had nothing left to sell; the praetor was reluctant to authorize the procedure, and then Claudius’ younger son revealed that he had deposited three million sesterces with Servilius as pre-payment for praeuaricatio, a collusive prosecution intended to fail and lead to Claudius’ acquittal.

For our present purposes, the question is whether Servilius had disclosed his debts on being sued because of some legal requirement, or it was just common knowledge in the society in which Caelius moved. The latter is the more natural interpretation of Caelius’ letter, but we cannot entirely rule out the possibility that Seneca was referring to a provision in Julius Caesar's lex de repetundis of 59 b.c., the law under which Claudius Pulcher and Servilius were tried and still the statute in force in the Principate. Alternatively, we might consider whether this too was a requirement of Augustus’ legislation about bribery. A man was required to declare his debts both when a candidate and subsequently after the election, if he was prosecuted. The jury could draw inferences from any major increase in what he owed. It may be asked why we hear nothing more of this provision. Any answer must be highly speculative, but three, not mutually exclusive, possibilities may be suggested: (a) that the provision became a dead letter at Rome and hence it found no place in municipal legislation; (b) that it was thought an unnecessary complication in municipal legislation, potentially deterring candidacy; (c) that municipal charters were to a great extent tralatician and were modelled on an original earlier than the lex Iulia de ambitu.