Murder Was Not a Crime

Homicide and Power in the Roman Republic

Judy E. Gaughan

• Publisher: University of Texas Press
• Year: 2010
• ISBN:
  9780292779921
• Topic: History
• Subtopic: Roman Ancient History
• Index: History

"Explore[s] with impressive scholarship cases of unlawful killing in the regnal period, the early and mid-republic and the post-Sullan era." —UNRV.com Embarking on a unique study of Roman criminal law, Judy Gaughan has developed a novel understanding of the nature of social and political power dynamics in republican government. Revealing the significant relationship between political power and attitudes toward homicide in the Roman republic, Murder Was Not a Crime describes a legal system through which families (rather than the government) were given the power to mete out punishment for murder. With implications that could modify the most fundamental beliefs about the Roman republic, Gaughan's research maintains that Roman criminal law did not contain a specific enactment against murder, although it had done so prior to the overthrow of the monarchy. While kings felt an imperative to hold monopoly over the power to kill, Gaughan argues, the republic phase ushered in a form of decentralized government that did not see itself as vulnerable to challenge by an act of murder. And the power possessed by individual families ensured that the government would not attain the responsibility for punishing homicidal violence. Drawing on surviving Roman laws and literary sources, Murder Was Not a Crime also explores the dictator Sulla's "murder law, " arguing that it lacked any government concept of murder and was instead simply a collection of earlier statutes repressing poisoning, arson, and the carrying of weapons. Reinterpreting a spectrum of scenarios, Gaughan makes new distinctions between the paternal head of household and his power over life and death, versus the power of consuls and praetors to command and kill.

ONE

KILLING AND THE KING

According to Roman tradition, the second king of Rome, Numa Pompilius, a man with a reputation for justice and piety, promulgated a law that prohibited murder.¹ One reason for the promulgation of the law during the monarchy is that the monarchs were trying to establish their own power in the face of what had preceded them, and one means of doing so was to control the power to kill. The kings arrogated such power for themselves and they defended, limited, or prohibited it in others. In addition to the self-interested motive of establishing and centralizing power, the kings also needed to ensure the stability of the kingdom. That stability was ensured by the maintenance of a good relationship with the gods, which an act of homicide could jeopardize. Thus, a murder law existed during the Roman monarchy because it served to establish and preserve the power of the king, and it served to keep the community safe.

A caveat is necessary here. No primary literary evidence about the monarchy exists, and references to this period by Roman authors writing centuries later are awash with legend and folkloric motifs. Later in this chapter, some reasons are provided regarding why some of the evidence might be taken seriously. The primary reason for including the discussion of the monarchic murder law in this book, however, is that it was the reported presence of a murder law in the monarchy and the apparent absence of one during most of the republic that began my thinking about the particular relationship in Rome between homicide and power. Even with the problematic nature of the sources, I ask more skeptical readers to consider the possibility that the distribution of power in the monarchy may indeed explain the existence of the attested murder law.

Five main points explored in this chapter reveal the intricate connection between the murder law of King Numa and the nature of monarchic power. First, the sources say that during the monarchy murder was regulated by law. Second, the nature of power in the monarchy was centered in the hands of one individual. Third, the tradition credits the second king of Rome with the promulgation of the law. If accurate, this would mean that the law was promulgated at a time when monarchic power was still being established, and thus the timing lends further credence to the idea that the law itself reflects the nature of that power. Fourth (relevant not only for this chapter but for the book as a whole), in Rome forms of power were frequently defined by the right to kill. Fifth, the king had jurisdiction to try and to punish offenders in cases of intentional homicide. In other words, the king claimed for himself the right to kill.

THE LEX NUMAE

Each of these issues will be addressed extensively below, but first, an examination of the law itself is appropriate. The lex Numae proclaims,

si qui hominem liberum dolo sciens morti duit, paricidas esto.²

If anyone knowingly with guilty intent kills a free person, let him be [a?] paricidas.

The law itself is quite simple; the difficulty for modern scholars, unlike the Romans living under Numa’s rule, results from not knowing what the word paricidas means.³ But even though we know neither the specific derivation of the word nor its precise meaning, it is probably safe to say that in Numa’s law, paricidas indicated a person subject to a capital penalty. Another one of Numa’s laws suggests this meaning, for it states that in cases of unintentional homicide the life of a ram is to be sacrificed in place of the life of the killer:

in Numae legibus cautum est, ut, si quis imprudens occidisset hominem, pro capite occissi [agnatis] eius in [contione] offerret arietem.⁴

It is the concern of a law of Numa that if anyone unintentionally killed a person, in the place of his head he would offer a ram to the agnates of the victim in [an assembly].

If the spilling of blood must occur to satisfy an unintentional homicide, then, a fortiori, blood spilling must occur in cases of intentional homicide.⁵ Furthermore, this law on unintentional homicide states explicitly that the ram takes the place of the head, presumably of the killer himself (or herself).⁶ Punishment for killing dolo sciens (“with guilty intent”), as opposed to imprudens (“unintentionally”), was death.

That a murderer suffered capital punishment means that not only did the king regulate murder, but he also claimed the right to kill for himself; at the same time that others’ power was being restricted, the king’s was being increased. For this statement to be accurate, two things need to be true. First, there must have existed a relationship between the right to punish with death and the restriction on committing murder. Second, the right of capital punishment must have belonged to the king.

The relationship between the king’s power to use capital punishment and the law prohibiting murder is not as tenuous as it might at first appear. This is especially true if the limitation on murder can be viewed as a limitation on the right of individuals to execute capital punishment. Before power to execute capital punishment belonged to a central power, private individuals or families presumably had this responsibility. A person taking vengeance on another might not have fallen under Numa’s classification of a person who killed dolo sciens, and so the relationship between the king’s right to kill and the limitation of others’ rights is not direct. Nevertheless, the existence of the law still suggests an infringement on the rights of individuals, because the government still plays a role in deciding whether an act deserves retaliation.

SOURCES

The claim that capital punishment was the king’s responsibility requires more attention, but before turning to this issue, it is necessary to consider the quality of our sources on the regal period. My argument relies primarily on two different kinds of literary evidence: alleged quotations of the leges regiae (“laws of the kings”) on the one hand and the legend of Horatius on the other. Although both the legends and the laws are reported by authors living several hundred years after the events they claim to report, the leges regiae have greater claim to authenticity. Two reasons exist for this: one is that the leges often retain the archaic language in which they were originally written, and the other is that the content of the laws fits well with archaic Rome. J. D. Cloud expressed the former argument, with specific reference to the lex Numae on murder:

The wording and content almost guarantee the substantial authenticity of the law: what forger would have been capable of inventing a word like “paricidas,” a type which is almost unique in Latin? As for the content, it is equally hard to believe that any forger of the late republic could have concocted a law which fits an early date so well and is at the same time alien from late republican jurisprudence.⁷

Despite Cloud’s belief in the antiquity of the law, he rejects the attribution to the period of the monarchy.⁸ Alan Watson, however, argued that the leges regiae are accurately attributed to the kings, at least with regard to private law. He bases this argument on the distinctly different content of the leges regiae as compared with the content of republican laws.⁹ His argument has two important implications here. First, he has shown that there is good reason to accept the authenticity of the leges regiae as a whole. Second, as will be seen later in this chapter, his argument, though he does not explicitly state it, suggests precisely the shifting nature of power between monarchy and republic that I am claiming is the explanation for the existence of the lex Numae on murder. Much more will be said of this below.

The most important piece of evidence for the theory proposed in this chapter is the existence of the monarchic murder law itself; thus, the main idea of the argument rests on evidence that has some claim to authenticity. The upcoming, more subtle discussion on the nature of regal power in regard to homicide takes as its starting point an analysis of a legend that appears in the far-from-contemporary historians Livy and Dionysius of Halicarnassus. Livy and Dionysius cannot have been accurate reporters of events that happened hundreds of years before their lifetimes, and the fantastic and legendary stories in their histories cannot be read as actual reports of events.¹⁰ Nevertheless, their interpretations of an event that they claim took place during the monarchy bring up some reasonable ways to envision the nature of power and its relationship to homicide during the monarchy. This is especially true when that scenario supports what little evidence is available.

HORATIUS

For example, Numa’s law implies that capital punishment was the king’s responsibility or at least that the king created a means of controlling when and how and whether a murderer would be punished. The trial of Horatius,¹¹ to which we now turn, shows a possible way to envision how the power of the king was executed. In the complex legal maneuverings in the story, although others had the right to try and to punish, the king had the ultimate right and responsibility.

According to legend, during the reign of Servius Tullius, Publius Horatius and two of his brothers did battle on behalf of Rome against the three Curiatii, the champions from the neighboring town of Veii. The victors in this combat would bring victory in war to their people. Only one of the Horatii survived, and he single handedly defeated the three Curiatii. Horatius, having thus brought victory to Rome, returned home where he met his sister. When she saw him carrying the spoils of the Curiatii, one of whom—unfortunately—was her betrothed, she began to mourn for the dead. This act infuriated her brother, who stabbed and killed her with the very same sword he had used to kill the enemy. For this act he was accused and brought before the king.¹²

The subsequent events in the story include many elements of jurisdiction overlapping: that of the father, the assembly, the duumviri perduellionis (“two men with jurisdiction in matters of treason”), and, supreme among them all, the king. That the king had the ultimate power in this case is suggested both by the report that the matter was brought to the king’s attention¹³ and by the king’s subsequent decisions. These decisions included his decision not to try the case himself, his appointment of specific officials to do so, his directions to those officials to convict Horatius, and his recommendation to Horatius to appeal their decision.¹⁴ The king was thereby giving his approval both to the conviction and to the lenience, and avoiding responsibility for either.

Let us consider the process more closely. The king chose not to try the case. The first implication of this is that he had the right to do so. The second implication is that he recognized that any decision he might make would have serious political repercussions for himself. This shows that, despite the king’s power to act, he also had to answer to the community at large. Although neither could act completely independently of the other, the king was ultimately responsible. The appointment of the duumviri perduellionis to try the case shows that the king could use intermediaries to condemn someone to capital punishment, but the fact that he made the appointment (an act that would have been done by the senate or an assembly in the republic) means that the greater power lay with him.¹⁵

It is worth exploring the circumstances of the appointment of the duumviri in the story in order to consider a possible scenario for the use of officials by the monarch, even though this story provides the only evidence that the duumviri perduellionis existed during the m...

Table of contents

• Cover
• Copyright
• Title Page
• Dedication
• Contents
• Abbreviations
• Preface
• Acknowledgments
• Introduction
• 1. Killing and the King
• 2. Power of Life and Death
• 3. Killing and the Law, 509–450 B.C.E.
• 4. Murder Was not a Crime, 449–81 B.C.E.
• 5. Capital Jurisdiction, 449–81 B.C.E.
• 6. License to Kill
• 7. Centralization of Power and Sullan Ambiguity
• Epilogue
• Notes
• Bibliography
• Index