INTRODUCTION

This is a book about crime and punishment in ancient Rome rather than a book about Roman criminal law. That is to say, it does not set out to be a textbook, or to describe criminal law generally, or even to be engaged with all aspects of the crimes described.1 Rather it sets out to show what the Romans thought about crime, what they saw as particularly heinous and – if possible – why. It does this by telling a number of stories, ‘famous trials’ so to speak, looking at attitudes, procedures and punishments. (Because they are stories, I have tried to reproduce the flavour of the originals.) It explains the technical details of the law only as far as is necessary for understanding the issues raised in particular trials. The stories chosen have to a large extent been dictated by the sources that

survive, literary or legislative. For one thing, if excessive hypothesising is to be avoided, it is necessary to look for a fairly full treatment by the ancient authors. And for another, unusually full treatment of certain episodes suggests that the Romans found them particularly interesting. It does not mean that the cases treated were typical crimes, in the sense of the daily diet of the courts, but it does mean that the treatment was representative of Roman attitudes. The Romans were not, apparently, given to introspection; we must therefore deduce their attitudes from what they found worth reporting at length. Three chapters, chapters 1, 3 and 6, are based primarily on literary sour-

ces, historians’ descriptions. Livy gives extraordinary space to the Bacchanalian affair, and the truth of certain aspects of his account is confirmed by the existence of a contemporary inscription recording the Senate’s decisions. The same is true of Tacitus’ lengthy account of the trial of Piso and its background, concerning which the inscription recording the official decision of the Senate was discovered only quite recently. Ammianus seems to have been an eye-witness to the trials of AD 371-72 at Antioch, which he recounts at length, but we have no external control on his version, although

1 I have given a general introduction in my The Criminal Law of Ancient Rome (London and

for this period relevant legislation survives in the Theodosian Code. The Acts of the Christian Martyrs, our main source in chapter 5, are rather different; while not court records, they purport to describe how the noble martyrs faced their bloodthirsty judges. They are not precisely literary sources; their viewpoint is not that of the governing classes, and the stories of the trials had a specific purpose. In chapters 2 and 4, our information is based on a speech of Cicero and some letters of Pliny the Younger. Both were advocates, arguing particular cases on somebody else’s behalf. There is no external check on their version of events; one must rely on their need for plausibility if their speeches were to be effective. Justinian, the subject of chapter 7, was not merely an emperor who enacted legislation of his own, in the Code; he stamped with his authority, and so turned into statute law, the juristic works found in the Digest, thus endorsing criminal law and criminal jurisprudence drawn from a period extending over more than half a millennium. (These successive textual layers inevitably produced inconsistencies, which is, interestingly, one reason why the Corpus Iuris Civilis, and particularly the Digest, was so influential in subsequent centuries, because its users, such as Popes and Emperors, natural lawyers and positivists, could find support for conflicting views.) Justinian’s own projection of himself is to some extent counterbalanced by Procopius’ hostile picture in the Secret History. The first four chapters are focused on the city of Rome. It was on Rome

that the judicial process was centred, whatever form it might take. Chapter 4 by definition deals with events in the provinces, abuses of office by provincial governors, but the trials were in Rome and their consequences felt there. In the legal system depicted in chapters 5 and 6, the regular judge was the provincial governor, now commonly described simply as judge (iudex), although his jurisdiction might be superseded by special commissioners. The change is a real one, as Mommsen saw, from an enlarged citystate ruling its provinces to an Empire in which ‘Roman’ is a conceptual rather than a geographical term. And Justinian, of course, ruled this Roman world from Constantinople. Some of the questions raised, if not necessarily fully answered, include:

What was behind the apparently sudden decision to persecute the worshippers of Bacchus in 186 BC? And why was the punishment so harsh? Was the violent society described by Cicero in defence of Sextus Roscius of Ameria simply a product of the civil wars? And why were the standard penalties of the Republican courts so – relatively – light? It is certain that Tiberius had real plots to face, as had Augustus before him, but how far did he act as a tyrant, repressing the victims of a system of delation which encouraged groundless charges? Why were links with astrology so damning, even when the prevailing Stoic philosophy saw men’s fates as determined by their stars? Pliny participated in some notable trials for extortion in the citizens

and for non-citizens? Christians enter the scene. Why were they persecuted? Were their trials subject to due process? Why do we hear so frequently that they were punished with death? In the fourth century treason trials feature again; why, for Christian emperors, were astrology and magic so suspect? Why did penalties appear so arbitrary? Justinian is the great lawgiver, the emperor who left us the Corpus Iuris Civilis. Why did he not legislate more on criminal law?What were his views on punishment? Why is there such a stark contrast between respect for due process and lack of respect for human rights? Why did the Romans go so far in making a spectacle out of punishment? The range of crimes dealt with in this book is restricted. The charges are

essentially confined to refusal to conform to the official religion – something which had seditious aspects – murder, treason (with elements of magic), and extortion from provincials. This is partly because we are limited to the information provided by our sources, information which would interest Roman readers, but it is also linked to the definition of crime. For the Romans ‘crime’ meant actions which threatened social well-being and stability; the repression of crime aimed to protect society more than its individual members, who were traditionally expected to be responsible for their own safety. Indeed, as we shall see, self-help remained a valued characteristic of the citizen, even if its exercise was put under limits. The Romans, at least of the Republic and early Empire, perhaps later too,

preferred to deal with much that we would call petty crime, particularly crime against individual proprietary rights, by civil process, as delict. This was not unreasonable. In most cases of theft or assault or damage to property, reparation – which is what a civil action provides – is likely to be the first thing the victim wants. While it is true that thieves as a class are unlikely to be able to make reparation, the existence at Rome of noxal liability – the legal responsibility of a paterfamilias or slave-owner for the delicts of his child or slave – meant that the victim would often be able to sue someone who was able to pay up.2 While it may be politically incorrect to say so, it seems very likely that the great majority of petty crimes at Rome were committed by slaves. Not so much because their natural servility of character marked them out to be slaves, as many of the ancients would have had it, but because many slaves must have been treated as nonpersons, something which leads to non-responsibility; others will have been the first in most households to suffer in hard times. The institution of slavery, combined with the delictual liability of owners, thus seems to have made the chances of reparation in ancient Rome somewhat higher than in the modern world. Moreover, where reparation was not sought, most street crime could be dealt with summarily, by the tresviri capitales or the Urban Prefect. These magistrates had virtually unlimited powers to deal with (presumed) slaves or foreigners – one thinks of the negative image of asylum

textbook’s of noxal

seekers currently put forward by the popular press – who had committed offences on the street; they could lock them up, flog them, or execute them, because such persons were outside the law. The close intervention of the state in the details of its citizens’ – or

subjects’ – conduct is an invention of the nineteenth century, of postIndustrial Revolution living; it also depends on the creation of police forces for social control.3 Factory conditions led to Factory Acts, and later Health and Safety Acts; education moved from being a privilege to a requirement, hence truancy; trains, and then the car, led to traffic regulations, and so to drunken driving.4 Taking the long view back, it is the nineteenth and twentieth centuries that are out of step, that are novel. (As for what the ‘war against drugs’ has done to criminalize half a population, the lesson of Prohibition has not been learned.) Sir George Mackenzie in seventeenth-century Scotland could reasonably base his treatise on the Roman model of crime – serious offences that threatened the social order;5 in his day, a gentleman carried a sword to protect himself against individual aggressors. Hume’s understanding of criminal law6 at the end of the eighteenth century represented the early stages of the modern view; he saw it as aimed at protecting the individual. And yet, one of the most interesting points made by a recent study of the

history of criminal law in Antiquity is that at Rome there existed a general concept of submission to the law. Not only was there not a criminal class in any meaningful sense, although of course there were many individual criminals, but – unlike the medieval and early modern periods – vendetta and private warfare are absent from the social scene. It was a rougher world than that of twentieth-century Western European countries in peacetime, but it was not so different in expecting the procedures of the courts to settle major disputes.7