The Pathos of Politics (113-3) Roman Punishment

Roman Punishment

Promulgated in 449 BCE, the 12 Tables legislation was the foundation of Roman law. A consequence of class struggle – between honestiores (overclass patricians) and humiliores (underclass plebeians) – the 12 Tables dealt chiefly with private disputes. Even the few offenses against the Roman state mentioned – such as receiving bribes or abetting an enemy of Rome – were prosecuted privately before an assembly of citizens, with magistrates conducting the proceedings.

Conviction sometimes involved compensation, but more frequently delict meant death. Among the forms of capital punishment were burning (for arson), precipitation (thrown from the Tarpeian cliff for perjury), clubbing to death (for composers of scurrilous songs of slander), hanging (for theft, as a sacrifice to the goddess Ceres), and decapitation.

Although unmentioned in the 12 Tables, several other forms of capital punishment were employed in early Rome. The culleus – putting the convicted in a sack with a dog, serpent, or ape, and throwing the sack into the sea – was used for those who killed a close relative. Vestal virgins who violated their vows were immolated.

The powerful nature of these punishments served as legal substitute for private revenge. Leniency might be shown by exile – with citizenship, freedom, and immovable property forfeit. Those so condemned could be killed by any citizen if they returned to Rome.

The only instance of imprisonment mentioned in the 12 Tables was for debt. Debtors who could not, or would not, pay up were held by their creditors for 60 days. Their debts were to be announced on 3 successive market days. On the last such day the debtor was executed or sold into slavery outside the city.

The powers of the male head of Roman households included the right to maintain a domestic prison cell (ergastulum). It might be used as a work cell for recalcitrant or rebellious slaves, or as admonishment for an errant family member.

The 12 Tables were never officially abolished. Significant changes were wrought between the 5th and 2nd century bce. While accusation and prosecution continued to be conducted by individuals, courts (quaestiones perpetuae) were presided over by a magistrate (praetor) who adhered to statute without discretion.

Lower magistrates (tresviri capitales) in Rome did not hold the power of life and death over Roman citizens: the power known as imperium, reserved for only the highest magistrates. Lower jurists could imprison offenders for short durations, or otherwise punish short of death. Little of these Roman prisons is known.

The jurisdiction of Rome differed from the provinces of the empire, where local governors had great latitude in law, including dealing with criminals; so too military courts.

The sphere of criminal law greatly expanded during the classical period. Emperors and their legal advisors added new offenses. Private prosecution gave way to public administration.

The new imperial system ushered into common use several hitherto infrequent practices, most notably torture. Torture had long been employed for the testimony of slaves, who were assumed to have no honor, nor reason to tell the truth sans coercion. The application of torture gradually expanded to defendants of low social status (humiliores), and even to witnesses, especially when the charge was treason; a category of crime engorged by emperors, ever paranoid of their power.

Under imperial rule, punishments grew increasingly severe. Exile became more common, as did forced labor on public works, work in the mines, or coerced gladiatorial combat. These last 2 were in effect death sentences, usually inflicted on humiliores.

Another new punishment was throwing an offender to the beasts in public games; more commonly applied to humiliores than honestiores (those of higher social rank), though some emperors cared not a whit about social status when it came to feeling displeased and being nasty about it.

Being thrown to the beasts, publicly roasted, or suffering crucifixion belonged to the class of spectacular retributions known as summa supplicia (the highest punishments). These were reserved for offenses considered horrendous, and were symptomatic of the pursuit of exemplary deterrence, designed to demonstrate the limitless power of the emperor.

Summa supplicia began under early emperors and reached a peak in the 3rd and early 4th centuries, achieving a ferocity rarely, if ever, equaled in the ancient world. Christian men were a favorite for this deterrent treatment.

These excesses were curbed from the mid-4th century, as emperors reduced both the variety and severity of capital punishment. This process occurred in the context of the last major stage in Roman legal history, with the extensive compilation of legal literature under imperial patronage.

Justinian I called the description of the former punishments as “the terrifying books.” By this time, the forms of execution more closely resembled the late republic than recent imperial history.

Roman prisons typically had several sections. The inner chambers were commonly hellish holds. The more desirable parts of a prison might sometimes be obtained by purchasing passage from jailers. Extortion by jailers was common.

Prisons were legally intended for temporary residence: either until execution could be carried out or the prisoner released. Being imprisoned for decades, as is common in modern practice, was practically impossible. For one, an inmate was unlikely to last that long under the fetid and tortuous conditions that prison presented. Antoninus Pius, who was emperor 138–151, stated his position:

Your statement that a free man has been condemned to imprisonment in chains for life is incredible, for this penalty can scarcely be imposed even upon a person of servile condition.

Antoninus’ predecessor, Hadrian, had issued an edict forbidding provincial governors from imposing life imprisonment. It was not always followed.

Governors are in the habit of condemning men to be kept in prison or in chains, but they ought not to do this, for punishments of this type are forbidden. Prison indeed ought to be employed for confining men, not for punishing them. ~ Roman jurist Ulpian (170–223)

By the 4th century, imperial edicts indicated a general concern that those held in custody before trial not unduly suffer. An edict dated 320 from Constantine I commanded that such men:

shall not be put in manacles of iron that cleave to the bones, but in looser chains, so that there may be no torture. He must be kept in good health by the enjoyment of light, so that he might not perish from the torments of prison.

Emperors sometimes gratuitously showed mercy. One instance illustrates the distinction between the kinds of crime and the treatment of criminals.

An edict in 367 announced the emptying of the prisons in honor of Easter, except for those guilty of treason, homicide, rape, adultery, sorcery, and crimes against the dead. These exceptional crimes, which merited summa supplicia punishment, were termed crimina excepta: crimes so heinous that ordinary criminal procedures were suspended in their prosecution.

The category of crimen exceptum also explains some of the erosion of status distinctions that had marked earlier forms of Roman punishment. During the days of the republic and 1st century of the empire, honestiores were either quickly executed, usually by decapitation, or allowed to flee into exile. By the 3rd century, honestiores and humiliores alike underwent torture and suffered summa supplicia for crimina excepta.