Chapter 8

The Romans said very little explicitly about their attitudes to crime and its punishment. The chief information comes from philosophers – influenced of course by the Greeks – rather than jurists, from Cicero (b. 106 BC) and Seneca (d. AD 65). Their working lives cover roughly a century and a half, in which Roman society made the major shift from Republic to Empire; political realities changed drastically, but cultural assumptions do not seem to have altered significantly. Cicero, and his views were well known to and respected by Seneca and Quintilian, Tacitus and Pliny. The jurists’ views, implicit rather than express, fit reasonably well with these models, although with a distinctly more practical slant.1

But the lack of any discipline of criminology, any serious attempt to apply undeveloped concepts to the actual administration of criminal justice, explains why the stories in this book have been told at length. We have been trying to see what the Romans actually did, in order that we, rather than they, can infer any principles. The treatment of the Bacchanalian conspirators, if such they were, as described by Livy does not fit even with the views of Polybius, less than half a century later, let alone with any philosophical theories or respect for the rule of law. The rule of law is, however, visible in the trials of Roscius, Piso, and the various governors accused under Trajan. In the trials of the Christians in the later third century and the early fourth, our sources see themselves as under attack from bloodstained monsters, but where the facts come through it does seem that the rule of law was generally observed. It may be worth remarking that in no society is the rule of law always observed; politics, venality and blind ignorance inevitably pervert a proportion of cases, even in the best of legal systems.

The later fourth century is harder to interpret. Was Valens’ situation so very different from that of Tiberius? It would be foolish to deny that in both periods there were genuine plots against the emperor; the atmosphere at court may not have been so different. But Tiberius ruled a tranquil empire, secure in Roman dominance of the known world; Varus’ defeat was an aberration. Valens had known the defeat and death of an emperor, that of his cousin Julian in 363, and his own death in the disaster of Adrianople in 378 was soon to follow the trials recorded. A plot against an emperor in the fourth century might risk the fall of Roman civilisation; I doubt if Tiberius saw his own safety in quite such a dramatic light. Further, our efforts to find whether the rule of law was observed in this era are hampered by the fashion for high rhetoric, a rhetoric designed to advertise the user’s authority and intellectual stature. Ammianus and the Theodosian Code would be so much easier to interpret had they used plain language. The use of rhetoric had somewhat diminished in Justinian’s day, and his legal views, laying down a legal culture, were built into the Corpus. Krause seems to be right in seeing the whole imperial period as a time of fundamental law-abidingness, of an acceptance that the law applied to all – if in different ways – and, even if it was harsh, was for the overall good of all – as with the Good Thief remarking ‘for we are rightly condemned for our misdeeds’.2

We shall look first at what we have in the way of theory, and then return to the practice, before trying to state some conclusions.

The philosophy of punishment

The Romans, of course, never had a problem about the basic morality of state violence, because they accepted domestic violence as justified – it was part of mos maiorum – even if they came to regulate it.3 They were conscious that the balance between humanitas (humaneness) and what was necessary for public safety was – as it still is – always shifting. An example of this balance, one familiar to us, was the treatment of homicidal lunatics; they were regarded as punished by their insanity, but for public safety they must be kept under restraint to prevent them from committing further killings.4 Similarly there was intellectual conflict between the supporters of the poena legis, the fixed statutory penalty,5 and those who wished to make the punishment fit the circumstances.6 Cicero was clear that justice required identical penalties for identical crimes, but then there was no mechanism for adjustment in his day.7 In the Empire a gradation of penalties was soon accepted.8

There was fairly widespread agreement among philosophers, and those who acted under the influence of philosophy, that the prime purpose of punishment was deterrence, linked with the public safety achieved by the removal of the criminal from society.9 Aulus Gellius, writing under Antoninus Pius, quoted the Greek philosophers in giving three reasons for the punishment of crimes, of which the first was correction and reformation. The second was to maintain the dignity and esteem of the victim, in other words, a version of the maintenance of social stability. The third was deterrence, the prevention of further crimes by other persons, which might call for very harsh penalties as examples to those who might be tempted. If none of these reasons was appropriate, then neither was punishment. Plato had ignored the second reason, and saw the role of punishment as either for the sake of correction or to inspire fear.10 The theory of retaliation (talio) in the full sense as a just form of vengeance was exploded by the philosopher Favorinus in the earlier second century, not only on the grounds of the difficulty of exactly matching the injury done, but also because of the complete impossibility of equalling the intention that caused the wrong.11 Nevertheless some attempt to make the punishment fit the crime satisfied the instinct for retribution.

Gellius shared an intellectual tradition with Cicero and Seneca, Tacitus and Pliny, and indeed with the jurists, whose education will undoubtedly have included an acquaintance with philosophy as well as oratory. Rewards were relevant as well as punishments to encourage virtue.12 Tertullian, Ammianus and Augustine all drew on the same tradition, even if it was angled somewhat differently for them. It is hard to know how far Tribonian shared their culture, but he does seem to have had the usual Latin rhetorical education of his day.13

Cicero made abstract statements in favour of clemency, but only where it did not affect the stability of the state,14 and stronger ones against forms of punishment which, while the punishment itself was necessary, were such as to affront the dignity of the guilty party (contumelia). This call to avoid adding humiliation to punishment, at least among the upper ranks of society, was, as we have seen, a widespread view among our (upper-rank) sources. Tacitus located it in the free choice of death (liberum mortis arbitrium),15 something that came to be seen by the jurists as an imperially granted privilege.16 Pliny had seen the most painful feature of successful prosecutions as the downfall of a senator.17 Unjustified humiliation was the gravamen of Ammianus’ grievance against Constantius and Valens. On the other hand, disgrace, being in itself a punishment, might be deliberately inflicted, as on the failed emperor Vitellius:

They bound his arms behind his back, put a noose about his neck, and dragged him with torn garments half-naked to the Forum. All along the via sacra he was greeted with mockery and abuse, his head held back by the hair, as is common for criminals, and the point of a sword under his chin so that his face must be visible.18

The views of Seneca, at one stage Nero’s tutor, writing in the later first century AD, are not so very different from those of an educated European of the earlier twentieth century. No treatment is to be seen as unduly harsh if its effect is salutary, but the ruler should aim first to reform, and hence light penalties should precede the more severe; death is the extreme penalty and a warning to all.19 Mercy is not to be seen as the norm, for the distinction between bad and good must be maintained; nevertheless, the balance should tilt slightly towards clemency.20 When a ruler seeks his own vengeance, there can be only two defensible purposes (for cruelty is always wrong), either compensation for past injury or security for the future.21 But objectively, punishment, which (for a Stoic) must always be administered impersonally and without emotion, has three possible aims: to reform the man that is punished, or by punishing him to make the rest better, or by removing bad men to let the rest live in greater security. Reform demands light punishment, for a desperate man has nothing to lose; further, severity loses its potency by over-use. Seneca distinguishes between deterrence, punishing a man to make the rest better, and public safety, putting bad men out of the way.22 Authority there must be: ‘While a Caesar needs power, the state also needs a head’,23 but the public interest must guide the administration of criminal law. Since all men have sometimes done wrong, and so there is no clear dividing line between the good and the bad, there must be a gradation of penalties to fit the nature of the offence and of the offender.24 Seneca, like other Roman thinkers, does not ever focus on the victim of the crime; to some extent, any punishment was retribution. It seems safe to say that the works of Seneca will have been known to every jurist, read as part of his general education, but Seneca’s principles were not necessarily followed. No other pagan philosopher wrote significantly on what we would understand as theories of punishment. The most important related notion that appeared in the later Principate was probably the concept of public discipline, almost an updated mos maiorum.25

In the Christian period, it is possible that the fear of hell, or the fear of God – a constant biblical phrase – and an acceptance of universal unworthiness before God may have tended towards a harder line on punishment. If we are all sinners, we all deserve punishment, and mercy is something to be left to God. This attitude may have combined with the fervour of rhetoric to keep the notion of retribution in the forefront of penal theory. However, we also find accepted the need to give the criminal an opportunity for penitence – as was later to be true for the Inquisition. While nobody in this later era follows Seneca’s stress on clemency as the filter through which to interpret the criminal law, there remained a range of philosophic attitudes. St Ambrose praised governors who avoided bloodshed,26 although St Jerome seemed undisturbed at the infliction of the death penalty for adultery.27 St Augustine, writing in the early fifth century, objects, not to the infliction of pain, but to its infliction upon the innocent; nevertheless, he pleaded on behalf of certain Donatists that their punishment should be less than their crime.28 But in the Later Empire, as earlier, there was need for lawful authority, whether of God, the emperor, or the paterfamilias. Punishment was necessary for social life, but the Church was there to intercede for the humble; bishops, with their pleas for mercy, were part of the machinery of justice. There were also general amnesties for lesser criminals;29 clemency was still an imperial function.

Penalties in Republican Rome

The traditional penalties of early Rome had been harsh. In the Republic, execution more maiorum meant being tied to a stake, perhaps with the neck in a fork, and beaten to death.30 The lictors of magistrates with imperium carried an axe to indicate the power to inflict death. Strangulation in the carcer was also traditional,31 as for certain crimes was hurling from the Tarpeian Rock, although this was probably viewed as more appropriate for slaves; slaves, at least by the later Republic, were regularly crucified. Crucifixion was considered the ultimate punishment, referred to by Cicero as the most cruel and disgusting penalty.32 Some have thought that lapidatio (stoning) was an archaic penalty, because it was a communal act.33 There were some specific death penalties in the Twelve Tables of the mid-fifth century BC.34 Stealing crops at night meant death for an adult, hung up to Ceres.35 One who deliberately set fire to a building or a heap of corn adjoining a dwelling was himself to be burned.36 A thief by night could lawfully be killed, and one by day if he defended himself with a weapon;37 a slave manifestly caught in the act of theft was to be hurled from the Tarpeian Rock.38 Yet the Twelve Tables drew distinctions; they allowed the reduction of penalties for those under puberty, or for those who did not intend to do wrong, and they also accepted the principle of self-defence.39

In practice, however, suicide or departure into exile seem to have been the most common courses of action taken by those faced with a capital charge, although there are occasional dramatic stories where death was the penalty. In 386 BC the Manlius who had held out in the Capitol against the Gauls was condemned for aspiration to tyranny, and the tribunes hurled him from the Tarpeian Rock.40 In 331 BC the Senate held an inquiry into the conduct of certain noble ladies who were allegedly plotting to poison their husbands and other leading men. Challenged as to the nature of their concoctions, twenty of them drank off the potions and perished on the spot; a further 170 were condemned to death, and presumably dealt with by their families, but this is not made explicit.41

Then, as we have seen in chapter 1, in 186 BC there was the Bacchanalian affair. Even if we do not believe the figure of more than 7,000 put to death, the capital penalty was clearly widely inflicted, although we know nothing of the method. Strangely, there is no trace of the sacral or expiatory approach. Men and women were executed, or held in prison, for what they had done and what they might do, not for offending the gods of Rome; the pontiffs and sacral law seem to have played no role in the Senate’s proceedings, in spite of the crime being at least partly religious. In this affair there was no trace of a criminal jurisprudence, of any theoretical justification of punishment. It was too early for Greek philosophical theories to be influencing the ruling classes; after all, philosophers were to be expelled from Rome in 161 BC. There was no due process either.

Polybius, writing around 140 BC, tells us that Roman usage allowed those on trial for their lives before an assembly (iudicium populi) liberty to depart openly, thus inflicting voluntary exile on themselves, if even only one of the tribes (recte, centuries) that pronounced the verdict had yet to vote.42 Since this statement was made only some forty or fifty years after the Bacchanalian affair, it is somewhat remarkable that Livy makes no moral comment on the putting to death of so many persons, including so many from the upper classes, particularly when, in the middle Republic, ‘there is no known instance of a man being condemned in a trial before an assembly on a capital charge’.43 It seems that the death penalty as a result of condemnation in an ordinary criminal court was seldom inflicted on citizens in the later Republic, although the statutory penalty of the standing jury-courts44 was in most cases technically a death sentence, until Julius Caesar made it formally a matter of exile, with interdiction from fire and water. This was, however, a ‘capital’ penalty, for the person convicted lost his caput, that is, his head was no longer counted among the citizens, and citizens, even after Caesar’s extension of the citizenship to all of Italy, were still privileged. Nevertheless, for the citizen Republican penalties were in general extraordinarily mild by the standards of the Empire,45 but they seem to have been severe enough to keep society stable until the civil wars of the last century of the Republic.

Because of the seriousness of the crime charged, parricide, it is possible that Sextus Roscius junior did face the real possibility of being put to death by the penalty of the sack. But he was not a confessed parricide, and it may be that, had he been convicted, he would have met only the normal sentence under the lex Cornelia de sicariis et veneficis, and been able to go into exile. It was in his – and Cicero’s – interests to stress the dreadful penalty and excite the jurors’ pity. And we know from pro Cluentio that someone of equestrian rank sentenced, for attempted poisoning, to the normal penalty of the lex Cornelia, and theoretically in exile, might still, if he benefited like Oppianicus from some public sympathy, remain in Italy, although not venturing into Rome.46 For senators a sentence of exile was political death, but it left them alive to enjoy, like Milo, the excellent mullets to be found in Marseilles.47

Outside the legal system were the public spectacles involving the deaths of many: criminous slaves, prisoners of war, bought gladiators.48 Such events mostly have their roots in the mid-Republic, but their scale and effect increased greatly in the last fifty years of the Republic, although the Marian and Sullan proscriptions had something of the orchestrated exhibition about them. Triumphal processions usually involved many deaths; Pompey’s generosity in releasing his prisoners was remarked.49 The hunting games (venationes), first held in 186 BC, deliberately involved human as well as animal deaths; they were included in the vast triumphal shows of Pompey and Caesar. Then there were the munera, the shows where gladiators fought in honour of the dead, put on by Caesar (with 320 pairs), and many others, especially his successors. When Caesar gave games as aedile in 65 BC, this, according to Pliny the Elder, marked the first appearance of noxii (but this need not include citizens) in the arena as opposed to perditi.50 At the naumachiae, the staged sea battles, favoured by the Julio-Claudians, thousands of such non-persons died. Mock land battles were also fought, again entailing the deaths of thousands. These are undoubtedly the origins of formal, legal condemnation to the beasts or the hunting games, and of the staging of executions in an amphitheatre or circus rather than somewhere smaller or less accessible. Such spectacles became in the Empire a part of the penal system while retaining their character of public shows, provided for the entertainment of the public and the glorification of the giver through the massive shedding of blood. One must, however, also remember that public execution has some justification in contrast to secret acts of authority, as well as being a more effective deterrent.51

What we simply do not know, hardly even in brief glimpses, is what penalties were imposed on ordinary criminals, and on what legal basis. Punishment of such offenders will have been somewhat less of a problem for the ancient Romans than for us, for at least two, linked, reasons. Delict, with its remedy of reparation, covered many areas that we would nowadays view as crimes, in particular theft but also assault and defamation, and malicious damage to property. Much petty crime, it seems safe to say, will have been committed by slaves. When a delict was committed a slave owner was noxally liable for his or her slave’s action; victims will thus have had a better chance of compensation from the wrongdoer than is likely in the modern world (which relies on insurance), and most would presumably prefer this path to that of vengeance. Further, there is no doubt that slaves, and foreigners, caught in the act of thieving could be summarily flogged, or even executed; this was one of the main functions of the tresviri capitales.52 The problem is what happened to citizens committing street crime; as citizens they were in law protected from summary flogging, and a priori from summary execution. There is nothing, however, in what we hear to suggest that protection was effectively available in such cases, since one can safely assume that the tribunes would withhold their auxilium; the shelter of the lex Porcia may in practice have been unobtainable. My guess is that persons caught in street crime were presumed, presumed from the very nature of their behaviour, not to be citizens, and were thus liable to the disciplinary powers, the coercitio, of the tresviri, unless they could make a very convincing case for themselves. Crime other than street crime, or where the political implications led to an assembly trial, may usually have been dealt with domestically in the early and mid Republic, and in the late Republic the introduction of the quaestiones perpetuae covered most major crimes. Nevertheless, there is a substantial gap in our knowledge.