CHAPTER IV. PUNISHMENTS IN THE ROMAN LAW. WHEN the penal laws of the decemvirs, which were remarkable for their extraordinary severity, fell into disuse, the Romans, by a very natural transition, passed from the extreme of rigour to the opposite extreme of lenity. For a time the right to sentence any one to die belonged to the general assembly of the people; and the person of a Roman citizen was deemed so sacred that capital punishments became of rare occurrence. A Roman accused of any capital crime might prevent the sentence of the law by voluntary exile; and this indulgence was carried so far, that till the votes of the last century had been declared, he was allowed to withdraw in the open view of all, and retire in safety to Rhodes or Athens, or any other of the confederate cities. It is to this period that Livy alludes when he says, that no people were fonder of moderation in punishments than the Romans. Sylla, the dictator, when invested with absolute power, put thousands of citizens to death by proscription without any form of trial; but in the Cornelian criminal code the usual punishment fixed by him for heinous crimes was aquæ et ignis interdictio. Under the empire public executions became frequent, and new and cruel punishments were introduced.2 Some of the principal punishments in use among the Romans may here be shortly noticed. Fine.-The infliction of a fine for certain offences was com- Fine. mon from the earliest times. At first, such was the scarcity 1 Polybius, vi. c. 2. 2 D. 49. 19. De Penis. C. 9. 47. Imprison ment. Scourging. of money that fines consisted of cattle; and, according to some authors, the highest under the Aternian law, B.C. 455, never exceeded two sheep and thirty oxen.1 But much larger fines, paid in money, were afterwards exacted at different periods of the republic, proportioned to the wealth of the delinquent and the nature of the offence. Imprisonment.—A person accused of any crime might be detained in prison till he could be brought to trial. If he denied his guilt he might be required to give sureties for his appearance, so as to avoid being detained in custody; and, except in extreme cases, even when ordinary bail was refused, the accused, instead of being thrown into the public jail, was placed in libera custodia,—that is, intrusted to the charge of one of the higher magistrates, or of a private person of distinction, who became responsible for his safe keeping. The prison was chiefly used as a place of confinement before trial, and also as a place of execution. Imprisonment appears to have been seldom used among the Romans as a legal punishment for offences. A prison was first built at Rome by Ancus Martius, near the Forum. Another was subsequently erected by Appius Claudius, the decemvir, in which he was himself put to death. The prison was under the charge of a jailer, who kept an exact roll of the prisoners, which was reported every month to the triumviri capitales. Corporal Chastisement.-Scourging, or flogging, was applied in various ways. The rod was used in the punishment of Roman citizens till it was abolished by the Porcian law. Soldiers guilty of desertion and other offences against military discipline, were liable to the punishment called fustuarium, which was analogous to running the gauntlet. Upon a given signal, all the soldiers of the legion fell upon the delinquent with sticks and stones, and generally killed him on the spot; 1 According to Aulus Gellius, there were great numbers of horned cattle in Italy, but sheep were scarce; and he gives that as the reason why the fine was levied in the proportion here stated. Aul. Gell., lib. xi. c. 1. In his 'Roman Antiquities,' Dr Adam has stated the maximum fine at two oxen and thirty sheep.-7th ed., p. 260. See Dr Colquhoun's Summary of the Roman Civil Law, vol. iii. p. 682. but if he made his escape he could not return to his native country. Slaves were punished by the lash. Under the emperors corporal punishment by beating or flogging was frequently inflicted on freemen of the lower orders. Retaliation. By the Twelve Tables the punishment of Retaliation. retaliation was authorised for bodily injuries-an eye for an eye, a limb for a limb; but this severe penalty was seldom exacted, because the law allowed pecuniary compensation to be taken in lieu of it.1 Ignominy. This was inflicted in two ways, either by the Infainy. censors or by a judicial sentence. The nota censoria operated as a stain on the reputation without affecting civil rights; but those made infamous by a judicial sentence were excluded from public offices and dignities, and deprived of various privileges belonging to other citizens. servitude. Penal Servitude.-A Roman citizen might be sold into Penal slavery for various offences, chiefly connected with military discipline; for neglecting to give an exact account of his property to the censors; for refusing to serve in the army when the consul held a levy; and for deserting to the enemy in time of war. Persons guilty of these offences were supposed to have voluntarily renounced the rights of citizens. During the empire criminals were often condemned to labour in the mines or on public works. ment. Banishment.-Aqua et ignis interdictio (forbidding the Banishuse of fire and water) was equivalent to the deprivation of the chief necessaries of life, and its effect was to incapacitate a person from residing or exercising the rights of a citizen within the limits embraced by the sentence. He did not cease, however, to be a Roman citizen, unless he procured admission into another state; and, if the interdiction was legally removed, he might return and resume his former position at Rome. Thus Cicero, who had been interdicted 1 I. 4. 4. 7. Among the Athenians, Solon decided that whoever puts out the only eye of a one-eyed person shall, for so doing, lose both his own. But the case has been put, what shall be done where a man having but one eye happens to thrust out Capital punish ments, from fire and water within four hundred miles of Rome, was restored by a lex centuriata. Under the emperors two forms of banishment, in the ordinary sense of the term, were introduced, deportatio and relegatio. Deportatio consisted of confinement in some place more or less distant, generally in one of the small rocky islands off the coast of Italy, or in the Ægean, which were used as state-prisons; and, although the criminal was not reduced to the condition of a slave, he lost his property and all his rights as a Roman citizen. Relegation was compulsory residence in a particular place assigned in the sentence, without being deprived of personal freedom or the rights of a citizen, and this might be either for an indefinite or a definite time. Sometimes a person was forbidden to live in Rome, or in a particular province, leaving him to choose his residence elsewhere; and sometimes an island or a particular city was assigned for his residence. Ovid, who was banished to Tomi, a town on the Euxine, praises, perhaps without much sincerity, the clemency of the emperor for the mildness of his sentence. Death. In early times the punishment of death appears to have been inflicted by hanging, scourging, and beheading, and by hurling from the Tarpeian Rock. The ancient usage of scourging, more majorum, is described by Suetonius. "The custom," he says, "was to strip the criminal stark naked, and lash him to death, with his head fastened within a forked stake." This execution generally took place in a field outside the Esquiline Gate, at the sound of a trumpet. Many criminals were also executed in prison, either by strangling them or precipitating them from a high place called Robur. Slaves after being scourged were crucified, usually bearing on their breast a label or inscription intimating the crime for which they suffered. They were compelled to carry the cross to the place of execution. No death could be more lingering and horrible when the suspended culprit was left to perish by slow degrees without any one to put an end to his torments. 1 Sueton. in Ner., c. 49. Sometimes he was stifled by the smoke of a fire, lighted expressly for the purpose, at the foot of the cross; and at other times a merciful bystander plunged a spear into the victim's body to terminate his sufferings. This barbarous punishment, which is said by Cicero to have been invented by Tarquin the Proud, continued in force until Constantine, from reverence to the sacred symbol, abolished it throughout the Roman empire. During the republic, capital punishments appear to have been inflicted on Roman citizens by the lictors. But there was a public executioner (carnifex), one of the most odious of all the officers of justice, who was not permitted to live within the city. It was his duty to execute slaves and persons of vile condition condemned to infamous punishments, such as the cross, or strangling in prison.1 Some new and cruel capital punishments were introduced under the emperors, such as burning alive, exposing to wild beasts, and similar tortures. The inhuman practice of exposing criminals to the fury of wild animals, which was in use among the Carthaginians, was adopted at Rome from the time of Tiberius: sometimes the culprit was condemned to engage in mortal strife with a lion for the amusement of the populace; at other times he was deprived of the chance of life, being tied to a stake that he might be unresistingly devoured by his ferocious assailants. That the early Christians were not unfrequently subjected to this cruel fate, may be inferred from a well-known passage in Tertullian:-"If the Tiber overflow its banks; if there be a famine or plague; if there be a cold, a dry, or a scorching season; if any public calamity overtake us; the universal cry of the populace is,— To the lion with the Christians-Christiani ad leonem ! "2 Under the empire persons of condition were generally treated with more favour in the matter of punishment than those of lower degree. Beheading and deportation were reserved for the former; while meaner criminals were subjected to the most cruel and degrading punishments. In some 1 Beaufort, Rep. Rom., vol. i. p. 425. 2 On Roman Punishments, see Beaufort, vol. ii. p. 115-118. |