The impetus for this book lies in a peculiar state of affairs I discovered some years ago in the process of researching and writing my dissertation: the Romans seem to have had a murder law during the monarchy but not during the republic.
When I set out to write the dissertation, I intended to explore the nature and development of Roman public law by examining the treatment of one crime over the course of the republic. I chose the crime of murder because it seemed that not much research had been done in that area. I quickly discovered, however, that there did not seem to be any such thing as murder actionable via public law during the Roman republic. I also soon discovered that the same did not seem to be true for the monarchy, when such an offense does seem to have been actionable. Immediately, no doubt, some of my more skeptical readers are thinking that any evidence I have for the monarchy, or indeed for the early centuries of the republic, is going to be unreliable. This fact has concerned me all along through this research.
Yet, it did not make sense to me simply to dismiss all alleged evidence about the monarchy, especially when that evidence seemed so alien to later Roman practice, and there did not seem to be any particularly good reason for the Romans to have fabricated it. The anomaly kept pestering me. I kept asking myself why would murder have been a matter for the government to handle during the monarchy and then subsequently not its responsibility during the republic? My contemplation of this question converted my research from the evolution of public law into the exploration of the nature and growth of republican government as revealed by the treatment of homicide. This book represents my conclusions.
The nature and quality of the evidence require the unorthodox approach of asking why something did not exist. I realize that this is a perilous approach to antiquity, yet I risk it because I believe the results help to dispel strongly held and misplaced assumptions. The first of these is the notion that murder is necessarily a crime in a civilized society. This notion results in the assumption that the Roman government necessarily had jurisdiction over this crime, as so many modern governments do. This assumption, in turn, results in a misconception about the character of Roman republican government and the extent and nature of its power in the community of Rome. I risk the unorthodox approach to the evidence because by laying aside these erroneous assumptions, a more accurate picture of the Roman republic, and the nature of political power within it, can be presented.
During the Roman republic murder was not a crime. In other words, the "killing of a human being by another with malice aforethought" was not "an act done in violation of those duties which an individual owes to the community and for the breach of which the law has provided that the offender shall make satisfaction to the public." Indeed, the republican Romans had neither the capacity nor the inclination to make the essentially private act of malicious and intentional homicide an offense actionable by the government. This fact is closely linked to the nature and evolution of political power in Rome, in large part because the right to kill is embedded in two key definitions of power: patria potestas (the power possessed by a Roman father over his children, which included the vitae necisque potestas, the power of life and death) and magisterial imperium (the power to command, which included the power to kill Roman citizens).
In this book I explore the relationship between homicide and power, with special emphasis on political power, from the beginning of the monarchy (753 B.C.E.) through the dictatorship of Lucius Cornelius Sulla (79 B.C.E.). The treatment of homicide, as revealed in this investigation of legislation, trials, punishment, assassinations, proscriptions, and the vitae necisque potestas, is a reflection of the extent and nature of the power of Roman government. This means that when the treatment of homicide changed, it was symptomatic of a change in the extent of political power possessed by the republican government. Change in the extent of political power usually coincided with a change in the structure of government. These changes largely revolve around the extent of the centralization of authority in the government. Roman republican government had little interest in controlling murder because the government was too decentralized to have its power challenged by an act of murder. For most of the republic, the government did not have the capacity to involve itself in matters that were not of primary interest to its security and stability.
In some respects the argument here echoes the theoretical approach of Max Weber, who saw control of violence as a defining element of the modern state. Weber's work was not the starting point for this book, however, but his was a theory that I discovered along the way that paralleled the theory that I was beginning to form based on the ancient evidence. In addition, I would argue that a book about homicide is not necessarily a book about violence. While in many respects, homicide, especially murder, is an act of violence, the act of taking another life is distinct from all other forms of violence, largely because of its irreversible result.
Because this book is specifically about homicide and political power, and because the power of the government was often articulated through legislation, a large part of this book is concerned with Roman law, particularly the sphere and development of Roman public law. Therefore, the argument of this book requires some preliminary remarks about legal terminology, both modern and ancient.
The study of Roman law is a complicated matter. As a result, scholars try to discuss it in language that has meaning for themselves and their contemporaries. While the use of comprehensible language is an admirable practice, in the case of Roman law, certain ubiquitous catchwords have resulted in a misrepresentation of the state of affairs, in particular by ascribing a deceptively familiar institutional structure to what were fluid practices. In republican Latin no words existed that can be literally translated as murder, crime, criminal courts, or criminal law. Thus, when scholars use such words to discuss Roman law, they end up attributing to the Romans concepts that were alien to them or, at the least, that one should not assume they possessed.
To begin this discussion of terminology, it is necessary to point out a confusion found in the English language. Although murder and homicide are often used interchangeably by lay persons, technically and legally they are two different acts. Homicide means simply "killing a person." This includes any kind of killing; thus, killing in battle or execution by the government, as well as murder, fall under this heading. Murder is a subset of homicide, and I use it in this study to mean intentional and malicious killing. The word homicide will be used simply to mean "taking a life."
The Romans not only had no legislation prohibiting murder, they had no word for murder. Even so, many words in Latin that mean "to kill" are often translated as murder: caedere, interficere, interimere, occidere, necare, and iugulare. Each of these, however, could mean either justifiable or unjustifiable homicide. None of these words is used as the title of a standing public court, although any of them might have been employed if the Romans chose to promulgate a murder law. The English word homicide, too, derives from the Latin word homicidium, which first appears in Cicero but is otherwise unknown in the republic and was never prescribed by law.
In examining what words the Romans did use, it is essential to keep in mind the dangers of attributing to them notions alien to their culture. Mommsen, for example, wrote, "In classical Latin there was no simple expression for murder; the recent and not fully established word homicidium, the murder of a person, is first introduced late. Temporarily in the classical legal language, the terms bandit (sicarius) and poisoner (veneficus) were combined to mean murderer." This is not accurate. The Romans used poisoner and bandit to mean poisoner and bandit, not to mean a word that did not exist for them, especially during the republic.
Mommsen is not the only scholar who has recognized the absence of a word meaning murder, but the real significance of this absence needs greater attention, for it contributes to the evidence that the Romans were not interested in having killing per se actionable in their public courts or even regulated by law. This is true of the earliest republican laws on record right through Sulla's legislation, promulgated during his dictatorship in 81-79 B.C.E. In any statutes relating to homicide, the words the Romans used were not primarily concerned with the act of homicide.
The other significant problem of terminology is that of "crime." Offenses that modern scholars call crime were tried in Roman public courts, but I am as resistant to using the word crime as I am to using the word murder, because the word crime did not exist during the republic either. Crime (Verbrechen in German, delitto in Italian) finds no parallel in Latin. The modern terms imply a morally wrong offense actionable by law with a specific punishment attached to it. While many Latin words are often translated as "crime"—maleficium, scelus, facinus, peccatum—none of them has the same associations with law, and all are better rendered as "sin," "bad deed," or "offense."
Just as the word crime is unrepresented in Roman republican vocabulary, so too is the term criminal law absent. Crimes falling under the rubric of modern criminal law (Strafrecht in German, diritto penale in Italian) share three elements: they are a matter of concern to society at large, prosecution of them occurs in a specific venue, and conviction for being found guilty of committing them earns a specifically prescribed punishment. Take, for example Black's Modern Law Dictionary's entry under the heading "criminal law": "The substantive criminal law is that law which for the purpose of preventing harm to society, (a) declares what conduct is criminal, and (b) prescribes punishment to be imposed for such conduct." Because criminal law, Strafrecht, and diritto penale are modern terms used as classifications for laws regulating crime, and because, as has already been mentioned, republican Latin had no word for "crime," one should not assume that the Romans had criminal law in our sense of the term.
Do the elements of modern criminal law mentioned above nevertheless apply to Roman public law? According to Roman jurists of the third century C.E. and later, the developed ius civile (law for Roman citizens) was divided into ius privatum (private law) and ius publicum (public law). The acts under discussion in this work did not fall under the rubric of private law, and so the ius publicum is of concern here. Ius publicum, according to modern scholars, includes constitutional and criminal law. This modern construction—for it is not an ancient one—does more to hinder our understanding of Roman law than to contribute to it. Barry Nicholas, in his Introduction to Roman Law, perhaps the standard textbook on Roman law in the English language, writes,
The Romans themselves made a distinction between public law and private law. The former was concerned with the functioning of the state, and included in particular constitutional law and criminal law; the latter was concerned with relations between individuals.
While public law included elements that would be considered constitutional or criminal in the modern world, the Romans themselves did not make this distinction because they had neither a constitution nor crime.
Because these terminological issues are more than simply matters of vocabulary, this discussion brings us back to the claim of the title of this work: Murder was not a crime. This apparently anachronistic phrase is meant to evoke the vast gulf between modern conceptions of the power and responsibility of governments and the republican Roman conceptions that are explored in this book. More concretely, the phrase means that the republican Roman government did not take cognizance of the malicious and intentional killing of one human being by another. That is, legislation prohibiting murder appears in no law either of the ius publicum or of the ius privatum.
"Murder was not a crime," however, does not mean that the Romans lacked concern for the unjustified taking of human life. The question of whether an offense was considered morally wrong by members of a society is different from asking how action was taken once an offense had been committed. Indeed, evidence exists that the Romans believed that intentional (though not malicious) killing was wrong under some circumstances because according to the ius privatum, it was right under other circumstances. If killing was justifiable in some circumstances, then it must have been implicitly considered wrong in others. Furthermore, while murder was not regularly actionable in any venue of public law, and murder was not regulated by Roman private law, Roman citizens had recourse to other methods of dispute resolution that did not require government action.
The difficulty for this study is that direct evidence for the treatment of homicide-related offenses in any of these alternate venues is scant or nonexistent. Nevertheless, during the republic, disputes could be resolved through vendetta, formal and informal arbitration, and mechanisms within families. Inferences about how these methods of dispute resolution played a role specifically in homicide are considered in subsequent chapters. Still, although the nature of our evidence limits the amount that can be said about how homicide was dealt with in these private venues, it does allow us to explore the nature of political power in the Roman republic by determining why murder was not the regular responsibility of the government, which brings us to the question of the sources.
Much of the material for this book is found in scattered references in the writings of historians, annalists, orators, and lexicographers and in infrequent passages in the compilation of the Digest and other late imperial law codes and legal texts. The sources for homicide and legislation about homicide in the Roman republic are generally not interested in the ordinary capacity of the Roman government in the area of public law; rather, the authors recorded stories because they determined the stories had some moral, historical, anecdotal, or other significance. This means the stories in the extant record probably do not represent the norm but illustrate the most sensational events. The bias of the sources for sensationalism is problematic but not insurmountable. The sources also contain another type of bias that has potentially serious implications for this study: their bias towards events of political interest and of interest to the upper classes.
I will be arguing throughout this book that the Romans from the founding of the republic through the dictatorship of Sulla did not have the capacity for, or interest in, dealing with homicide through any official institutions or magistracies or by means of legislation. Moreover, homicide—when it appeared—was peripheral to offenses that required direct government involvement in part because the act of homicide did not directly affect the government or those governing. Ideally, such an argument would be formulated based on a secure knowledge of what happened to nonpolitical acts of homicide and nonelite perpetrators of homicide. Because of the nature of the sources, however, we simply do not know what happened to ordinary Romans who killed other ordinary Romans under, relatively speaking, ordinary circumstances.
Many scholars of Roman public law often make mention, in passing, of murder under a modern rubric of so-called ordinary crimes, but there is little evidence of ordinary crimes actionable in public venues, nor is there any evidence that the Romans had a conception of ordinary crime or that murder would have been counted under such a rubric. It is unlikely that the absence of ordinary crime is simply a product of the nature of the sources.
This conclusion is based in part on something that has been observed by every student of the Roman republic: the government had little in the way of institutions or magistrates whose primary responsibility was to manage violent behavior of its ever-expanding citizen body. This absence is dramatically represented in times when public safety is at issue and the Romans function in an ad hoc manner in their attempts to reestablish internal stability; Roman republican government barely had the institutions and individuals in place to act in the face of internal threats to public safety. If institutional mechanisms were sparse for acts that threatened public safety, how much more limited were they for acts that did not threaten the security or stability of the res publica?
A potential threat to my claim that ordinary crime was, to all intents and purposes, not a concern of the government, and therefore a hitch in the argument that murder was not a crime in the Roman republic, is the existence of two sets of minor magistrates, the quaestores parricidii and the tresviri capitales. If any officials functioned in a capacity where they dealt with nonpolitical offenses or with homicides by nonelite offenders, it was these men. Both sets of officials will be discussed in greater detail in Chapter Four. Suffice it to say here that the earlier officials, the quaestores parricidii, might represent an interest by the Romans of the early republic in having the government play some role in the maintenance of public order through the suppression of ordinary crimes. Unfortunately, what we are told about them is both excessively little and contradictory. Mostly what can be said is that they probably existed at some point in early republican history, that they had the responsibility over parricidium (which may, at this period of Roman history, have been kin-killing, or culpable homicide, or simply an act worthy of the punishment of death), and that they then either ceased to exist or ceased to maintain the responsibility. Some modern scholars have conjectured that these officials simply functioned as arbiters of disputes with no coercive or executive power, sort of a service offered by the government for the resolution of private disputes but not a means for the government to take over the responsibility for the resolution of such disputes or for the punishing of wrongdoers.
About the tresviri capitales, who probably came into existence around the beginning of the third century, we are blessed with at least a little contemporary evidence, though the implications of that evidence have been the subject of much debate, and conclusions must remain tentative. It seems likely that these men were not judges of citizens. Among their responsibilities was the supervision of government executions and of the prison in the forum. Most of the occurrences of such executions that are described in the sources are of capital and elite offenders. Of greater significance for the discussion here is the role of the tresviri as some kind of officials to whom one could report an "ordinary" act of criminality.
What are the implications of this: is it that the Romans were interested in official, government-generated suppression of ordinary crimes? If so, the introduction of a mere three minor officials who had the primary responsibility for the prevention of fires (especially at night) and who were the supervisors of executions does not indicate a particularly great or strong interest in the active suppression of crime. Furthermore, the tresviri do not seem to have acted preemptively. In other words, complaints and even perpetrators were brought before them by private individuals; they did not actively seek out offenders, nor would they have had any law to assist them in determining criminal behavior when they saw it.
With this complex and somewhat chaotic job description, it is difficult to see how the tresviri can represent an interest on the part of the government in a serious attempt to deal with ordinary people and ordinary crimes. There were simply too few of them, and they had too much to do. No other venues seem to have had any regular capacity to deal with ordinary perpetrators and ordinary crimes, especially those, like homicide, that would most likely require the death of the perpetrator. The tresviri will be considered at greater length in Chapter Five, where I explore the capital judicial sphere of institutions and magistrates of the Roman republic.
This book is primarily arranged chronologically, beginning with the exploration of the treatment of homicide during the monarchy and the implications of Numa's murder law. In Chapter Two an examination of the ideological power possessed by the pater familias to kill his children and other dependents will reveal an important element of the decentralized power of the Roman Republic. Chapter Three explores the treatment of homicide in the early republic and the limitations of the power of institutions of the government to condemn citizens to death. In Chapter Four the specific kinds of offenses that become actionable by the later republic illustrate that murder was not a crime. The capital jurisdiction of institutions and officials of the government, and the limited employment of capital punishment, is the subject of Chapter Five. The assassinations beginning in the mid second century that reflect the tension of the expanding empire and increasing size and complexity of republican government are explored in Chapter Six. Finally, in Chapter Seven we will see the relationship between homicide and power revealed in the hostis declaration and the proscriptions. In this chapter, the exploration of Sulla's homicide-related legislation will reveal that even as late as 79 B.C.E., murder was not a crime.