Richard A. Bauman - Crime and Punishment in Ancient Rome

CRIME AND PUNISHMENT IN

ANCIENT ROME

CRIME AND

PUNISHMENT IN

ANCIENT ROME

Richard A.Bauman

London and New York

For Sheila and Nicola

First published 1996

by Routledge

11 New Fetter Lane, London EC4P 4EE

This edition published in the Taylor & Francis e-Library, 2004.

Simultaneously published in the USA and Canada by Routledge

29 West 35th Street, New York, NY 10001

1996 Richard A.Bauman

All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by an electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Bauman, Richard A.

Crime and punishment in ancient Rome/Richard A.Bauman.

p.

cm.

Includes bibliographical references and index.

1. Punishment (Roman law) 2. Criminal law (Roman law)

Philosophy. I. Title.

KJA3612.B38

1996

345.009376dc20

[342.509376] 9621587

CIP

ISBN 0-203-42858-7 Master e-book ISBN

ISBN 0-203-73682-6 (Adobe eReader Format)

ISBN 0-415-11375-X (Print Edition)

CONTENTS

Preface

List of Abbreviations

1 INTRODUCTION

Crime and Punishment

Punishment: The Greek Experience

Roman Punishment in Theory and Practice

Criminal Courts and Punishments

Humanitas, Saevitia and Punishment

2 TRIAL BY MAGISTRATE AND PEOPLE

The Early Poena Legis

The Iudicium Populi: Procedure and Penalties

Punitive Assessments by Tribunes

Punitive Assessments by Aediles

Humanitas and Punishment: Voluntary Exile

The Limits of Voluntary Exile

Humanitas and Capital Punishment

Conclusion

3 TRIAL BY JURY

The Decline of the Iudicia Populi

The Quaestiones Perpetuae

Verdict and Sentence in the Quaestiones Perpetuae

Humanitas: The Alternative Capital Penalty

Sub-Capital Penalties

Mixed Penalties: Parricidium

Mixed Penalties: Adulterium

Conclusion

CONTENTS

4 CICERO ON PUNISHMENT

Cicero and Pragmatic Conceptualization

Cicero in Theoretical Mode

Humanitas and Utilitas Publica

Cicero in 63: The Background

The Trial of Rabirius

The Conspiracy of Catiline

Cicero in 63: The Aftermath

Conclusion

5 THE NEW COURTS: AUGUSTUS AND TIBERIUS

The Cognitio Extraordinaria

Augustus and Punishment: The Senate

Augustus and Punishment: The Emperors Three Hats

The Senatorial Court under Tiberius

All The Laws In Good Shape Except One

Conclusion

6 THE MATURING COGNITIO: CALIGULA AND

CLAUDIUS

Consolidation of the Emperors Court

Caligula: Punishment and Precedent

Black Comedy and Punishment

Caligula and Arbitrary Cognitio

Claudius, Parricidium and Humanitas

Claudius: Other Uses of Humanitas/Aequitas

The Pumpkinification of Claudius

Conclusion

7 NERO AND THE STOICS

The Two Faces of Stoicism

Seneca on Clemency

Nero and Clemency: The Pedanius Case

Nero and Clemency: Insults to the Emperor

Nero and Clemency: The Deflection of Odium

Utilitas Publica and Entertainment

Nero after Seneca

Public Opinion and the Death of Octavia

Conclusion

8 DOMITIAN AND MORALITY

Introduction

Domitian and the Vestals

vi

CONTENTS

Clemency and the Deflection of Odium

Conclusion

9 PREFECTS AND CRIMINAL TRIALS

Introduction

The Urban Prefect in Neros Reign

The Urban Prefect from Vitellius to Domitian

The Urban Prefect in the Second Century

The Praetorian Prefect: Condemnations by Acclamation

The Praetorian Prefect: Conditional Adjudication

The Primacy of the Lex Fabia

The Praetorian Prefect: Unconditional Adjudication

Conclusion

10 THE GROWTH OF CRIMINAL JURISPRUDENCE:

DE IUDICIIS PUBLICIS

The Foothills of Punitive Theory

The De Iudiciis Publicis Genre

Motivation and Ideology

Conclusion

11 THE GROWTH OF CRIMINAL JURISPRUDENCE:

DE POENIS

The De Poenis Genre

Differential Punishments: Terminology

Differential Punishments: Cut-Off Points and Status Symbols

The Lower Cut-Off Point: Humiliores and Slaves

Extra Ordinem Penalties: Discretionary or Mandatory?

Conclusion

12 ATTITUDES TO PUNISHMENT

Introduction

The Republic and Early Principate

The Second Century: The Great Debates

The Attitudes of the Severan Jurists

Your Interpretation Is Alien To My School of Thought

Cruel Punishments Were Threatened But Never Used

Conclusion

13 IN RETROSPECT

Notes

Select bibliography

Index to sources

General index

vii

PREFACE

Roman Criminal Law has attracted steady attention ever since Mommsen gave it form and definition nearly a hundred years ago. Of the many scholars who have clarified and amplified Mommsens ideas, a special place is occupied by Kunkel. Other important contributors include, in chronological order, Greenidge, Strachan-Davidson, Girard, Rogers, Siber, Vittinghoff, Brasiello, Brecht, Avonzo, Bleicken, Waldstein, Genin, Eder, Cloud, Ungern-Sternberg, Gioffredi, Wieacker, A.H.M.Jones, Pugliese, H.Jones. The writers contributions appear in the Bibliography.

The above works can all be classified, to a greater or lesser extent, as general surveys. The present study does not aim to produce another such survey. Our focus is a more specialized one. We are concerned primarily with punishment, over the period of the Republic and the Principate; substantive law and procedure fill a subsidiary, though still important, role. Mommsen made some valuable observations on punishment, as did Kunkel, but no special lens was trained on the topic until Levys seminal study of capital punishment which appeared in 1931 and was included in the collected edition of his works in 1963.

Duponts investigation of Constantines criminal law is marginal to our period but instructive, and so is Biondis work on the law of the Christian emperors as a whole. Within our period Levy was followed by the several studies of De Robertis and Cardascia, and Garnseys full-length study in 1970 which is the only major work in English.

(Drapkin focuses only in partand inadequatelyon classical antiquity.) Since 1970 there has been something of a minor proliferation. The works of Fanizza, Ducos, Rilinger and Cantarella call for special mention, as do the symposia edited by Thomas and by Diliberto. There are also the shorter studies by Andr, Archi, Brunt, Cornell, Crif, Eisenhut, Ferrary, Flach, Fraschetti, Garofalo, Grelle, PREFACE

Grodzynski, Lassen, Liebs, Marino, Monaco, Mouchova, Richardson, Robinson, Spruit, Thome, Volterra and Wolf.