The emperors of Rome possessed, of course, a much more unquestioned authority and a more effective machinery for the suppression of doctrines and for the confiscation of books than belonged to the shifting authorities of Athens, and there are examples of a number of imperial decrees for literary confiscation, some of which were based on the real or apparent interests of the State, while not a few can be credited to personal motives.
The first instance of the kind was the order of Augustus for the burning of 2000 copies of certain pseudo-Sibylline books. Those charged with the task were directed not only to take all the stock that could be found in the book-shops, but to make thorough search also for all copies existing in private collections.[280] Caligula attempted a more difficult task, when, according to Suetonius, he undertook to suppress the writings of Homer—cogitavit de Homeri carminibus abolendis.[281] He also gave orders, says the historian, which were fortunately only partly carried out, to have destroyed all the writings and all the busts of Virgil and of Livy contained in the libraries. Tiberius ordered that the writings of a certain historian of the time of Augustus should be abolished, abolita scripta, by which we may properly understand simply that the copies were to be taken out of all public libraries.[282]
The rigorous measures adopted by Domitian to discourage the sale of the history of Hermogenes of Tarsus, by crucifying the publisher and all the booksellers who had copies in stock, have already been referred to.[283] This history was found objection to on the score of certain designs contained in it, propter quasdam figuras. Two other works which failed to secure the approval of this Emperor were the Laudations by Junius Rusticus and Herennius Senecio of Paetus Thrasea and Helvidius Priscus. The two books, that is, all the copies of them that could be secured, were burned in the Forum after having been solemnly condemned under a senatus consultum. Senecio was nevertheless able to preserve his own copy.[284]
Not a few of the edicts of confiscation were, however, evidently carried out by a house to house visitation, extending at least to all domiciles known to contain collections of books. Diocletian caused to be collected and destroyed all the ancient manuscripts in Egypt, “which had to do with the chemistry of quicksilver and gold,” περὶ χημείας ἀργυροῦ καὶ χρυσοῦ, i. e., with the subject of alchemy.[285] The teachers in Africa of the doctrines of the Manichæans were also ordered to burn their books. The edict of Diocletian, issued 303 A.D., directing the persecution of the Christians, also provided for the destruction of the Christian Scriptures. According to Burckhardt, many Christians came forward with the acknowledgment that they possessed copies of the Scriptures, and, refusing to deliver the same, suffered the martyrdom for which they sought.[286]
Constantine permitted Arius to live unmolested, but his writings were, whenever found, committed to the flames, and any one concealing copies was liable to death. In 448, the Emperor Theodosius issued an edict for the destruction of all works the influence of which was opposed to the Christian faith, an instruction which, if it had been faithfully executed, would have annihilated a large portion of the world’s literature. Among other writers the loss of whose works, excepting only a few fragments, was probably due to the edict, was Porphyry of Tyre, who died about 300 A.D., and who was the ablest of the later scholarly opponents of the Christian doctrines.
St. Jerome relates that a certain Pammachius attempted to recall and to cancel almost immediately after publication the edition of Jerome’s controversial letters against the monk Jovinian, but that his efforts were unsuccessful, for copies of the book had already been distributed in every province.
The legislation of imperial Rome, which, as we have seen, made no specific provision for the protection of the rights of authors, also omitted to institute any measures for the public supervision of books. It was under the general provisions of the criminal law that the publication of writings on certain special subjects was prevented or was punished, and that the authors, publishers, and sometimes even the possessors of the works regarded as injurious to individuals or as likely to cause detriment to the State, became subject to penalties the severity of which varied with the times.[287] Several of the imperial edicts characterized libellous publications as acts of lese-majesté or treason.[288]
It would not be in order to bring to a close this sketch of the history of literary property under the rule of the Romans, without reference to the contribution made by Roman jurists to the analysis of its origin and nature, although such contribution was but slight. The theories and conclusions of these jurists are of interest not on the ground of their having had any effect on the status of literary production throughout the Empire, but on account of the far-reaching influence of Roman jurisprudence upon the conceptions and the legislation of the mediæval and of the modern world.
As Klostermann points out, the Roman jurists interested themselves in the subject of property in an intellectual or immaterial creation rather as a matter of theoretical speculation than as one calling for legislation; and, as we have already seen, there is no record of any such legislation, imperial or municipal, having been instituted during the existence of the Roman State. Some of the earlier discussions as to the nature of property in formulated ideas appear to have turned upon the question as to whether such property should take precedence over that in the material which happened to be made use of for the expression of the ideas.
The disciples of Proculus (a lawyer living at about 50 A.D.) maintained that the occupation of alien material, so as to make of it a new thing, gave a property right to him who had reworked or reshaped it; while the school of Sabinus (who was himself a contemporary of Proculus) insisted that the ownership of the material must carry with it the title to whatever was produced upon the material. Justinian, or rather, I understand, Tribonianus, writing in the name of the Emperor (about 520 A.D.), took a middle ground, following the opinion of Gaius. Tribonianus concluded, namely, that the decision must be influenced by the possibility of restoring the material to its original form, and more particularly by the question as to whether the material or that which had been produced upon it were the more essential. The original opinion of Gaius appears to have had reference to the ownership of a certain table upon which a picture had been painted, and the decision was in favor of the artist. This decision (dating from about 160 A.D.) contains an unmistakable recognition of immaterial property, not, to be sure, in the sense of a right to exclusive reproduction, but in the particular application, that, while material property depends upon the substance, immaterial property, that is to say property in the presentation of ideas, depends upon the form.[289]